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Appeal No. 86 of 2015
Thakkar Kanji Morarjee Bhatia Niwas & Thakkar Vassanji Morarjee Chawl Trust v. Charity
Commissioner
2016 SCC OnLine Bom 11099
In the High Court of Bombay
Ordinary Original Civil Jurisdiction
(BEFORE MANJULA CHELLUR, C.J. AND M.S. SONAK, J.)
Thakkar Kanji Morarjee Bhatia Niwas & Thakkar Vassanji Morarjee
Chawl Trust & Anr. .…. Appellants
v.
The Charity Commissioner & Ors. .…. Respondents
Appeal No. 86 of 2015
In
Originating Summons No. 774 of 2014
Decided on September 1, 2016
Dr. Birendra Saraf with Mr. R. Carvalho i/b. Mr. Bipin Joshi for Appellants.
Mr. R. Dada - Senior Advocate with Mr. Naushad Engineer, Mr. M.S. Federal, Mr. P.
Parekh i/b. M/s. Federal & Rashmikant for Respondent No. 3.
P.C.
1. Heard learned counsel for the parties and perused the record.
2. The issue involved in the present appeal is whether the disputes between the
parties could have been adjudicated in the originating summons instituted by the
appellants. The learned Single Judge, upon appreciating the contentions of the parties
has held that it would not be appropriate to adjudicate the disputes as raised in
summary proceedings by the originating summons procedure. Hence, the present
appeal.
3. Dr. Saraf, learned counsel for the appellants submits that the only issue involved
relates to the interpretation of document of conveyance executed by the appellant
trust in favour of the respondents. Since complex issues of fact are not involved, in
such interpretation, the same were required to be adjudicated in the originating
summons procedure.
4. On the other hand, Mr. Dada, the learned Senior Advocate for respondent No. 3
submitted that this is not the just matter of interpretation of the document of
conveyance but the questions which the appellants have posed by taking out the
originating summons relate to the very validity of the deed of conveyance.
5. Rule 238 of the Bombay High Court (Original Side) Rules 1980 provides for who
may apply for the issue of originating summons and in respect of what matters. Rule
238 read thus:
“238. Who may apply for the issue of originating summons and in respect
of what matters. - The executors or administrators of a deceased person or any of
them and the trustees under any deed or instrument or any of them, and any
person claiming to be interested in the relief sought as creditor, devisee, legatee,
heir or legal representative, or as beneficiary under the trusts of any deed or
instrument, or as claiming by assignment or otherwise under any such creditor or
other person as aforesaid, may apply for the issue of an Originating Summons
returnable before the Judge in Chambers for such relief of the nature or kind
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following as may by summons be specified and circumstances of the case may
require (that is to say), the determination, without an administration of the estate
or trust, of any of the following questions or matters.:—
(a) any question affecting the rights or interest of the person claiming to be
creditor, devisee, legatee, heir or legal representative or beneficiary;
(b) the ascertainment of any class of creditors, devisees, legatees, heirs, legal
representatives, beneficiaries or others;
(c) the furnishing of any particular accounts by the executors, administrators or
trustees and the vouching (when necessary) of such accounts;
(d) the payment into Court of any moneys in the hands of the executors,
administrators or trustees;
(e) directing the executors, administrators or trustees to do or abstain from
doing any particular act in their character as such executors, administrators or
trustees;
(f) the approval of any sale, purchase, compromise or other transaction;
(g) the determination of any question arising in the administration of the estate
or trust.”
6. In Lyla Darius Jehangir v. Bakhtawar Lentin1, the Division Bench of this Court
(Coram: R.M. Lodha and S.A. Bobde, JJ.) (as they then were) has held that the whole
object of the originating summons procedure is to make available to the parties the
procedure which is inexpensive but at the same time, in substance for determination
of disputes as to construction of the written instruments referred to in Rule 238.
However, it is also held that the originating summons is not a proper procedure to be
adopted where disputed facts are of such complexity as to involve a considerable
amount of oral evidence. This procedure should be confined to matters being capable
of decision in a summary way. The Division Bench, by reference to the decision of the
2
learned Single Judge of this Court in case of Rama Aziz Parpia v. Balkrishna K. Mehta
has held that originating summons is neither the process for declaration of the rights
of the properties, nor is it a lis, as popularly understood. By this, the court is not
adjudicating the rights and liabilities of the parties. Rather, this procedure is a means
for getting over unexpected, uncontemplated difficulties which crop up during the
administration of the estate by the executors of the trust.
7. In the impugned order dated 4 December 2014, the learned Single Judge has
referred to the questions which the appellants want the court to answer by applying
the summary procedure of originating summons. The same read as follows:
“(a) Whether the sanction to sale the trust property dated 13th November, 1979
issued by the Charity Commissioner stands complied.
(b) Whether the execution of the conveyance without the simultaneous execution of
the lease deed would amount to breach of the condition of sanction dated 13th
November, 1979.
(c) Whether such execution is valid and lawful.
(d) Whether the breach of the order dated 13th November, 1979 can be remedied
and rectified by execution of appropriate lease deed.
(e) Whether or not the execution of the lease deed will invalidate conveyance,
and
(f) Whether the trustees are required to take legal proceedings to recover
possession of the trust property from defendant Nos. 2 and 3.”
8. According to the appellants, in terms of the sanction dated 13 November 1979
issued by the Charity Commissioner and the document of conveyance, certain portion
of the conveyed property was required to be leased back to the appellants, which
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condition according to them, has not been complied with. On the other hand, it is the
case of the respondents that though they stand by the terms of sanction and
conveyance, the appellants demand is much in excess of the terms of the sanction and
document of conveyance. The issues raised, pertain not just to interpretation of the
documents but also to validity of the execution, performance and so on. The
respondents have also raised the issue of bar of limitation.
9. In the aforesaid circumstances, taking into consideration the limited scope of
enquiry in the originating summons procedure, we are unable to fault the reasoning in
the impugned order. The issues raised, are substantive issues which might require
evidence and detailed investigation into facts. Such complex issues of law and fact
cannot be appropriately adjudicated in the summary procedure as contemplated in
originating summons under Rule 238. The impugned order has not shut out the rights
of any parties and therefore, it is always open to the parties to institute substantive
proceedings for adjudication of their alleged rights or claims. We therefore, see no
reason to interfere with the impugned order.
10. Before we part we must however express that since the property is belonging to
the public charitable trust, it would be in the interests of the parties that the disputes
between them are sorted out amicably by negotiations or by seeking intervention of
some suitable mediator. Such resolution of disputes will be in the interests of the
parties, including more particularly the appellant which is public charitable trust.
11. We make it clear that all contentions of all parties with regard to their disputes
are kept open.
12. With the aforesaid observations, this appeal is disposed of.
———
1
2007 (1) Mh. L.J. 545
2
(1992) 0 Supreme (Mah) 148
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