CHARU KISHOR MEHTA Vs. JT.CHARITY COMMR. GR. BOMBAY REG. & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2819 of 2015, Judgment Date: Mar 12, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2819 OF 2015
(Arising Out of SLP (C) No.4148 of 2011)
CHARU KISHOR MEHTA ......APPELLANT
VERSUS
JOINT CHARITY COMMISSIONER,
GREATER BOMBAY REGION & ORS. ......RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
This appeal has been filed by the appellant against the impugned judgment
and order dated 01.12.2010 of the High Court of Judicature at Bombay, in
Letters Patent Appeal No.268 of 2010 (for short "LPA") in Writ Petition No.
9501 of 2009, whereby the High Court dismissed the LPA filed by the
appellant and upheld the judgment and order dated 02.03.2010 passed by the
learned single Judge of the High Court.
For the purpose of considering the rival legal contentions urged on behalf
of the parties in this appeal and with a view to find out whether this
Court is required to interfere with the impugned judgment and order of the
High Court, the necessary facts are briefly stated hereunder:
The appellant herein is the permanent trustee of the Lilavati Kirtilal
Mehta Medical Trust (for short "the Trust") which is a public registered
Trust in accordance with the terms of the registered Trust Deed and is
governed under the provisions of the Bombay Public Trust Act, 1950 (for
short "the Act"). The respondent nos.2 to 9 are the trustees of the
aforesaid Trust along with the now deceased Vijay Mehta, who was the
Managing Trustee of the Trust during the relevant period of time. The case
of the appellant is that respondent Nos.2 to 9 have allegedly continuously
neglected their duties and have committed malfeasance by acting in breach
of trust with respect to the Trust properties. They have also
misappropriated and improperly dealt with the properties of the Trust from
the year 2001 to 2006. It has been further alleged by the appellant that
they have also squandered the Trust money to the tune of crores of rupees
and have committed serious acts of malfeasance.
The appellant on coming to know of this fact in the year 2006, filed an
application, being Application No. 17 of 2006 under Section 41D of the Act
before the Joint Charity Commissioner (for short "JCC"), making various
allegations against the aforesaid respondent Nos.2 to 9 including the
deceased Vijay Mehta and alleged that they are liable for dismissal from
their Trusteeship of the Trust for their acts of nonfeasance and
malfeasance, inter alia, contending that they have abdicated their
functions and duties as provided under the provision of Section 36A of the
Act, after their acceptance as trustees in the said Trust as provided under
Sections 46 and 47 of the Indian Trust Act, 1882, which is applicable to
the fact situation of the present case.
On the basis of the said application, the JCC, framed 8 grave and
serious charges jointly against the respondent Nos. 2 to 9 (original
respondent nos. 1 to 8) and the deceased Vijay Mehta (the original
respondent no.9).
The JCC vide its order dated 25.9.2009, after affording opportunity to the
parties in the present case, recorded its findings on the charges and held
that the charges against respondent Nos. 2 to 9 except charge No. 4 which
was against the deceased Vijay Mehta have been proved. The JCC however,
dismissed the application against the respondent Nos. 2 to 9 and exonerated
them by holding that they are only negligent in putting blind faith in
delegating their powers and duties to be performed as trustees of the Trust
in favour of the deceased Vijay Mehta, the Managing Trustee of the Trust.
Therefore, the application against them was dismissed by him. The appellant
herein being aggrieved by the said findings and reasons recorded by the JCC
filed writ petition No. 9501 of 2009 before the learned single Judge of the
High Court, whereby the High Court vide its order dated 2.3.2010 dismissed
the writ petition.
Thereafter, the appellant filed LPA No.268 of 2010 before the High Court,
which was also dismissed by the Division Bench on the basis of the findings
recorded by the learned single Judge and held that the charges framed
against the respondent Nos. 2 to 9 by the JCC were established. However, as
there was no evidence against respondent Nos. 2 to 9 to hold them
responsible for the transactions from the year 2001 to 2006, except on
charge No.4, it has held that there is culpability of the deceased Vijay
Mehta and further, the JCC has held that the charges against respondent
Nos. 2 to 9 in delegating their powers and functions to the deceased Vijay
Mehta as per clauses 9 and 11(h) of the Trust Deed vide the Resolution of
the Trust dated 30.8.2001 stood established and proved against them but
they cannot be held guilty for the same as the appellant herself was a
signatory to the above Resolution. The Division Bench of the High Court
vide order dated 1.12.2010 declined to interfere with the order dated
2.3.2010 passed by the learned single Judge and found that the same is
justified after considering that the appellant herself was a party to the
above mentioned Resolution that has appointed the deceased Vijay Mehta as
the Managing Trustee of the Trust. Further, no steps were taken for the
cancellation of the Resolution by her as she did not even enter into the
witness box before the JCC to justify her conduct that she is not a
signatory to the Resolution wherein the deceased Vijay Mehta was appointed
as the Managing Trustee by other Trustees who are respondent nos.2 to 9 in
the present appeal. Further, the High Court held that the appellant did not
object to his functioning as a Managing Trustee at the time when all the
powers were being delegated to him and found that the petition was not
seriously contested before the learned single Judge and rejected the appeal
of the appellant.
Aggrieved by the said judgment and order of the Division Bench of the High
Court, the present appeal is filed by the appellant with a prayer to set
aside the judgments and orders of the JCC and the High Court by quashing
the same and requested to pass such orders as this Court may deem fit and
proper in the facts and circumstances of the case by urging various facts
and legal contentions.
Mr. V. Giri, the learned senior counsel on behalf of the appellant has
contended that the appellant was not present in any of the meetings during
the relevant period, i.e. 30.3.2002 and 1.4.2007 and in particular the
meetings held on 30.8.2001 and 19.7.2002 which fact has been deposed by Mr.
Kishor K. Mehta (the original respondent No.10 before the JCC), the husband
of the appellant in the proceedings before the JCC. The JCC however, has
erroneously exonerated respondent Nos. 2 to 9 and has imposed punishment
for the removal of the deceased Vijay Mehta only, in exercise of its
discretionary power under the provision of Section 41D of the Act even
though respondent Nos. 2 to 9 were also found guilty of nonfeasance and
misfeasance charges in respect of the Trust properties. Therefore, the
exercise of the discretionary power under the provision of Section 41D of
the Act by the JCC is erroneous in law as he has failed to impose any
penalty against them as provided under the above provision of the Act.
Further, it is contended by the learned senior counsel for the appellant
that the appointment of the deceased Vijay Mehta as the Managing Trustee of
the Trust on behalf of respondent nos. 2 to 9 cannot be construed as the
abdication of the core functions of the Trust as the trustees have to
prudentially manage the affairs of the Trust in such a manner as a man of
ordinary prudence would do. He has placed strong reliance upon Section 36A
of the Act in support of the above legal contentions and has further
contended that the provision under Section 15 of the Indian Trust Act,
1882, which provision reiterates that a trustee is bound to deal with the
Trust properties as carefully as a man of ordinary prudence would deal with
such property, as if it were his own. Sections 46 and 47 of the Indian
Trust Act, 1882, state that the trustee cannot renounce his office that
requires him to discharge his duties and functions and he cannot delegate
the same to a co-trustee unless the instrument of trust so provides.
Therefore, it is contended by the learned senior counsel that non
exercise of the discretionary powers by the JCC properly and not imposing
penalty as provided under Section 41D of the Act upon the respondent nos. 2
to 9 is erroneous in law which order of him has been erroneously approved
by the High Court in the impugned judgment and order and therefore, the
learned senior counsel for the appellant has prayed for setting aside the
same. Further, during the course of submission, the learned senior counsel
had produced an affidavit dated 06.01.2015 on behalf of the appellant,
wherein the Minutes Book of the Trust, for the period 2000-2007 was
produced before this Court in support of his contention, the said Minutes
Book is produced by him to highlight the facts that if they are read as
they stand, the same would unequivocally and predominantly demonstrate that
the original respondent Nos. 1 to 8 before the JCC were positively aware
about the mala fide acts of the deceased Managing Trustee Vijay Mehta for
which he had been dismissed from the trusteeship of the Trust.
Further, the Minutes of the Meetings of the Trust during the relevant
period would point out that all the major decisions of the deceased Vijay
Mehta were conveyed by him to the other trustees and the findings recorded
by the JCC on this aspect in his judgment and order are enough to show that
the respondent Nos. 2 to 9 in the present case and other trustees were very
much aware of the various transactions and functions of the Trust. In these
circumstances, the JCC could not have exonerated respondent Nos. 2 to 9 by
holding that they were unaware of the misdeeds of the deceased Vijay Mehta
in the affairs of the Trust as they could have interfered and taken
corrective steps to save the Trust from any further losses. The learned
senior counsel for the appellant has placed strong reliance upon the
decision of the Privy Council in the case of Lala Man Mohan Das v. Janki
Prasad & Ors.[1] in support of his legal contention to show that the law
does not permit delegation of the powers and functions by the Trustee in
favour of another Trustee except in cases of necessity or with the consent
of the beneficiary or the authority of the Trust Deed itself and also to
show that there is delegation of some functions only. However, the
delegation of all functions and all powers is nothing short of the
abdication of the same in favour of a new body of men and also to further
show that the act of one trustee done with the sanction and approval of a
co-trustee may be regarded as an act of both. Therefore, the non exercise
of his discretionary powers and the non imposition of penalty by the JCC on
respondent nos. 2 to 9 as provided under Section 41D of the Act is
erroneous in law which has further been erroneously upheld by the High
Court in the impugned judgment and order.
On the other hand, it has been contended by Dr. Rajeev Dhawan, the learned
senior counsel appearing for the respondent nos. 2 to 9 that both the JCC
as well as the High Court took into consideration the fact that they cannot
be held responsible because they had completely delegated their powers and
functions to the deceased Vijay Mehta and therefore, they are not
responsible for any acts of omission and commission committed by the
Managing Trustee and hence no action could be taken against them under the
provision of Section 41D of the Act by the JCC.
He has further vehemently sought to justify the findings and reasons
recorded in the judgment and order in not imposing penalty upon them by the
JCC which has been concurred with by the High Court based on clauses 9 and
11(h) of the Trust Deed which permit the trustees of the Trust to delegate
their powers and duties to the Managing Trustee as has been delegated by
respondent nos. 2 to 9 in favour of the deceased Vijay Mehta, who was the
Managing Trustee of the Trust, by passing the Resolution of the Trust dated
30.8.2001, to which Resolution, the appellant is also the signatory. He has
also placed strong reliance upon clauses 9 and 11(h) of the Trust Deed,
which enables the Trustees to delegate their powers and duties in favour of
another trustee.
The learned senior counsel also placed reliance upon the decision of this
Court in Sheikh Abdul Kayum & Ors. v. Mulla Alibhai & Ors.[2] to
substantiate his legal submission that the aforesaid clause of the Trust
Deed enables respondent nos. 2 to 9 to delegate their powers and duties to
the Managing Trustee of the Trust. Further, he has submitted that as is
clear from the minutes of the Resolution of the Trust held on 30.8.2001,
the appellant was present in the meeting of the Resolution. On the basis of
the same, the JCC has rightly held that the appellant was present in the
meeting and the Resolution was valid. He has further placed reliance upon
the findings recorded by the JCC and the High Court in the impugned
judgment and orders wherein they have held that the delegation of powers
and duties by respondent nos. 2 to 9 in favour of the deceased Vijay Mehta
is proper and non imposition of punishment upon them by both the JCC and
the High Court for the reason that their culpability on the charges has not
been proved by the appellant and therefore, it is urged by him that they
are legal and valid and the same cannot be interfered with by this Court in
exercise of its jurisdiction.
The learned senior counsel for the respondent nos. 2 to 9 has also placed
strong reliance on the findings of the JCC in his judgment and order and
upon the provisions of Section 41D of the Act, contending that the JCC has
rightly exercised his discretionary power in not imposing penalty upon
respondent nos. 2 to 9, which has also been noted by the High Court stating
that the findings recorded by the JCC against the said respondents did not
warrant interference by the High Court to impose penalty as provided under
Section 41D of the Act. Alternatively, he has also submitted that the
charges made against the above respondents do not warrant exercise of power
by the JCC under Section 41D of the Act to impose penalty upon the above
respondents, as the said provisions would have serious consequence by
imposing punishment upon the respondent Nos. 2 to 9 and therefore, the same
shall not be strictly adhered to.
Further it has been contended by him that the appellant was also one of the
trustees of the Trust at the meeting on 30.8.2001, who had also delegated
her powers and functions in favour of the Managing Trustee and she did not
even enter into the witness box before the JCC to refute her participation
in the meeting and her signature on the Resolution passed on the date
referred to above, wherein she has delegated her powers and functions in
favour of the deceased Vijay Mehta. Further, she did not produce the Trust
records when asked by the JCC to do so, for this reason alone the JCC
should have rejected the application of the appellant filed against
respondent nos. 2 to 9.
It is further vehemently contended by the learned senior counsel for the
above respondents that the appellant has indulged in the abuse of process
of the Authority of the JCC by filing a complaint before him when she
herself was complicit in the delegation of powers and functions to the
deceased Vijay Mehta. Thus, she cannot contend that the delegation of
powers and duties to the said Vijay Mehta by the trustees-respondent nos. 2
to 9, vide the Resolution of the Trust dated 30.8.2001 is an invalid
delegation. Therefore, the learned senior counsel for the respondents
submits that the view of the JCC which has been rightly concurred with by
the High Court is legal and valid. Hence, no substantial question of law is
involved in this case for the consideration and interference by this Court
in exercise of its appellate jurisdiction against the impugned judgment and
order. The other learned counsels on behalf of the other respondents have
also adopted the submission of the learned senior counsel who has argued on
behalf of the respondent Nos. 2 to 9.
With reference to the abovementioned rival legal contentions urged on
behalf of the parties, we have examined the impugned judgments and orders
of the JCC as well as the High Court to find out whether any substantial
question of law would arise in exercise of the appellate jurisdiction of
this Court. After careful examination of the documents produced by the
appellant before this Court and on a careful perusal of the judgments and
orders of the JCC and the High Court, we are of the view that no
substantial question of law would arise in this case as there is no
miscarriage of justice for our interference. In support of the above said
conclusions arrived at by us, we record our reasons as hereunder:-
It is an undisputed fact that the Lilavati Kirtilal Mehta Medical Trust
is a public registered Trust under the provisions of the Act. The clauses 9
and 11(h) of the Trust Deed of the Trust which are extracted below provide
for the delegation of the powers and functions by the trustees of the Trust
by appointing one or more of the existing Trustees from among themselves to
discharge all such powers and functions of the trustees of the Trust as
they may deem fit and proper. The relevant clauses of the Trust Deed read
thus:-
"9. The trustees for the time being of these presents may appoint one or
more of the trustees from among them as the Managing Trustee or Managing
Trustees, with all or such of the powers and authorities of the Trustees as
the Trustees may think fit, and may from time to time withdraw any such
powers and authorities.
11. For the accomplishment of the Trustees of these presents and without
prejudice to the generality of any powers hereby or by law conferred or
implied or vested in the Trustees the following powers and authorities are
hereby expressly conferred on the Trustees, that is to say :-
(h).To delegate by Power of Authority or otherwise to any Trustee or
Trustees or other persons whomsoever any power implied by law or conferred
by statute or vested in the Trustees by these presents but the Trustees
shall not be held liable or responsible for the acts or defaults of any
persons or person but only for their own respective acts and defaults;"
The findings of the JCC are based on the pleadings and the material
evidence produced on record by the parties and the Resolution dated
30.8.2001, wherein the trustees, respondent nos.2 to 9 including the
appellant of the Trust had delegated their powers and functions to the
deceased Vijay Mehta to manage the affairs of the trust. The relevant
paragraphs 1 to 4 and 9 of the Resolution dated 30.08.2001 regarding the
delegation of powers given to the delegatee deceased Vijay Mehta read thus:-
"Resolved that Shri Vijay K. Mehta be and is hereby appointed as Managing
Trustee of the Trust with absolute and sole powers and authority in respect
of the management of the Trust and all the activities of the Trust subject
to provisions of the law applicable to a Charitable Trust including the
following :-
To manage the affairs of Lilavati Hospital & Research Centre, Mumbai in all
respects viz. Financial, Technical, Administrative and Management of the
Hospital.
To manage the affairs of Lilavati Kirtilal Mehta Charitable Hospital,
Palanpur in all respects viz. Financial, Technical Administrative and
Management of the Hospital.
To appoint and authorise any agency and/or bankers and/or any executives to
execute the functions and/or any work of the activities of the Trust and to
appoint any Trustees to execute any agreements, documents or any deeds on
behalf of the Trust.
To accept donations of money and/or property movable or immovable on such
terms and conditions as the Trustees may think fit not being inconsistent
with these presents of the Trust hereby established. No donation however,
will be accepted with a condition requiring change in the name of the Trust
and its present activities.
XXX XXX XXX
To give donations or subscriptions out of the Trust Fund or income thereof
to such public charitable institutions funds for their all or any of the
objects or purposes."
Thus, a careful perusal of the clauses 9 and 11 (h) of the Trust deed would
clearly go to show that there is ample scope for such delegation of powers
and functions of the Trustees to another Trustee or Trustees of the Trust
to act on their behalf. In support of the same, the learned senior counsel
on behalf of the respondents has rightly placed reliance upon the judgment
of this Court in the case of J.P. Srivastava & Sons (P) Ltd. v. Gwalior
Sugar Co. Ltd.[3], which reads thus:-
"29. Therefore although as a rule, trustees must execute the duties of
their office jointly, this general principle is subject to the following
exceptions when one trustee may act for all (1) where the trust deed allows
the trusts to be executed by one or more or by a majority of trustees; (2)
where there is express sanction or approval of the act by the co-trustees;
(3) where the delegation of power is necessary; (4) where the beneficiaries
competent to contract consent to the delegation; (5) where the delegation
to a co-trustee is in the regular course of the business; (6) where the co-
trustee merely gives effect to a decision taken by the trustees jointly."
(emphasis laid by this Court)
The JCC has rightly recorded his finding of fact on the basis of the
Resolution dated 30.8.2001 of the Trust, holding that the appellant was
also one of the signatories to the said Resolution and the learned senior
counsel on behalf of respondent nos. 2 to 9 has rightly pointed out to us
that the appellant was present in the meeting on 30.8.2001 as is clear from
the Minutes of the Meeting, which fact has also been recorded by the JCC in
his order dated 25.9.2009. The fact that the signature of the appellant in
the Resolution is seriously disputed before this Court, cannot be accepted
by us in view of the finding of fact recorded by the JCC based on record
which has been rightly concurred with by the High Court and the said
finding cannot be said to be erroneous in this appeal for the reason that
the appellant did not enter into the witness box before the JCC to refute
the correctness of her signature and the Minutes Book of the Resolution.
Further, the husband of the appellant, original respondent No.10 before the
JCC had entered into the witness box, to support the charges made by the
appellant against the respondent nos. 2 to 9, however, he has not deposed
any other evidence except filing affidavit evidence before the JCC. The
Minutes Book of the Trust as well as the Resolution from the year 2000 to
2007 and the additional compilation paper book produced in this case are
not taken on record by this Court as the same have been rightly opposed by
Dr. Rajeev Dhawan, the learned senior counsel, on behalf of the respondent
Nos. 2 to 9 contending that the same had not been placed as evidence on
record before the JCC and therefore, the same cannot be looked into in this
appeal. By a bare perusal of the Minutes Book of the Resolution, wherein
the Resolution of the Trust dated 30.8.2001 was recorded, the JCC has held
on the facts and evidence on record that there was mismanagement of Trust
by the Managing Trustee, deceased Vijay Mehta. Further, it is pointed out
by the learned senior counsel on behalf of the respondent Nos. 2 to 9 that
Mr. Kishor Mehta, the original respondent No.10 before the JCC, had no
knowledge of the transactions in respect of which charges have been framed
against them as the financial transactions were handled solely by deceased
Vijay Mehta.
Further, the reliance placed upon Sections 46 and 47 of the Act of 1882, by
the learned senior counsel on behalf of the appellant is not applicable to
the public charitable Trust as held by this Court in the case of
Thayarammal v. Kanakammal & Ors.[4], which reads thus:-
"15. The contents of the stone inscription clearly indicate that the owner
has dedicated the property for use as "Dharamchatra" meaning a resting
place for the travellers and pilgrims visiting the Thyagaraja Temple. Such
a dedication in the strict legal sense is neither a "gift" as understood in
the Transfer of Property Act which requires an acceptance by the donee of
the property donated nor is it a "trust". The Indian Trusts Act as clear by
its preamble and contents is applicable only to private trusts and not to
public trusts. A dedication by a Hindu for religious or charitable purposes
is neither a "gift" nor a "trust" in the strict legal sense...."
Therefore, the delegation of all the powers and functions by respondent
nos. 2 to 9 and also the appellant in favour of the Managing Trustee of the
Trust deceased Vijay Mehta, is permissible in law as the instrument of the
Trust provides for that.
The findings of facts are recorded in the judgment and order by the JCC at
para 255 which reads thus:-
"255. In the application, allegations are made against all the trustees.
However, specific allegations with regard to all the charges are against
only respondent No.9. The tenor of paragraph numbers 10,27, 2 etc. of the
application is that he is mismanaging the affairs of the trust. He is
trying to carry out the activities of the trust single handedly. Names of
Mr. Dushyant Mehta and Mr. Suresh Motwani are repeatedly mentioned as
associates, or cohorts of respondent No.9. The allegations against rest of
the trustees are that of collusions and connivance. But the allegations are
general in nature. They are vague. No specific allegations are levelled
against the respondent Nos. 1 to 8."
The typed copy of the order of the JCC was produced in this case is not
a correct one. The learned senior counsel for the respondent Nos. 2 to 9
has produced the certified copy of the order of the JCC, which reads thus:
"265. To sum, I hold that the charges 1 to 8 are established against
respondent No.9. However, there is no evidence against respondent Nos.1 to
8 to hold them responsible for the charged transaction."
By a careful reading of the above extracted paragraphs from the order
of the JCC makes it clear that no complicity is proved against respondent
Nos. 2 to 9, for the reason that the JCC found that there is no evidence
against them to hold them responsible for the charged transaction, which
means that the JCC has held that the culpability against respondent Nos. 2
to 9 are not established. Further, the JCC has rightly exercised his
discretionary power under Section 41D of the Act in a responsible way and
not in an arbitrary manner, as could be seen from the reading of paragraphs
261 and 262 of his finding which read thus:-
"261. To conclude, I do not find anything against respondent Nos. 1 to 8 to
connect them directly with the alleged transactions. The respondents No.
2,3,4 and 7 admittedly joined board of trustees much later i.e. in the year
2004. It would be wrong to blame them for the acts done in past, before
they joined as trustees.
262. These respondents may be negligent in putting blind faith in
respondent No.9. It was wrong to give free hand trust affairs to him. They
were over dependent on respondent No.9. Probably the facts that he is the
eldest member of Mehta family, and since he took over as the Managing
Trustee, the hospital earned both fortune and fame might have weighed much
in their minds, for which they put total faith and reliance on him. They
are certainly to be criticized for that. However, their overdependence on
respondent No.9, in action, negligence and lack of interest, would not
warrant their dismissal."
The said findings and observations of the JCC are affirmed by the
Division Bench of the High Court in its judgment, which reads thus:-
"....The Joint Charity Commission has given reasons for making the order
for removal of respondent No.9 only. The reasons given by the Joint Charity
Commissioner can by no stretch of imagination be said to be perverse or
impossible. In our opinion, therefore considering that the order is within
the jurisdiction of the Joint Charity Commissioner and the reasons given by
him for making the order are also possible and plausible reasons. The
learned Single Judge was justified in not interfering with the order. We
have also been informed that when the learned Single Judge was considering
the validity of the order in the Writ Petition, the finding recorded in the
order against respondent No.9 were stayed in the appeal filed against that
order by him before the Competent Court."
Thus, in view of the fact that the appellant did not enter into the witness
box and also the fact that similar charges as levelled against the
respondent nos. 2 to 9 were also pending against her before the JCC for
being the signatory to the Resolution dated 30.8.2001 in delegating her
powers and functions to the deceased Vijay Mehta, the JCC should not have
accepted the evidence of the original respondent No.10 before the JCC and
recorded the findings on charges in his order. Further, he has rightly held
that the guilt of respondent Nos. 2 to 9 are not proved and has also held
that they are negligent for only delegating their powers and functions to
the Managing Trustee, deceased Vijay Mehta but the charges levelled against
them are not proved as they are not responsible for the alleged
transactions, therefore, there is no complicity on the allegations made
against them. The said conclusion of the JCC is based on facts and evidence
on record, therefore, he has rightly exonerated them from the liability and
has not imposed punishment under Section 41D of the Act, upon respondent
nos. 2 to 9, in exercise of his power in a reasonable and fair manner and
therefore, the same cannot be said to be arbitrary and unreasonable in
nature. Therefore, the High Court has rightly concurred with the findings
of the JCC in exonerating the respondent nos. 2 to 9 from the charges
levelled against them by passing a well reasoned judgment and order.
The cases relied upon by the learned senior counsel for the appellant, i.e.
Sheikh Abdul Kayum & Ors. v. Mulla Alibhai & Ors.(supra), J.P. Srivastava &
Sons (P) Ltd. v. Gwalior Sugar Co. Ltd.(supra) and D. Gopalaswami Mudaliar
v. Subramanya Pillai & Anr.[5], have no relevance to the fact situation of
the present case, as they do not support the case of the appellant. The
learned senior counsel for the appellant has strongly placed reliance on
the case of Lala Man Mohan Das v. Janki Prasad & Ors.(supra), the relevant
extract of the judgment of the Privy Council reads thus :-
"In the case of co-trustees the office is a joint one. Where the
administration of the trust is vested in co-trustees, they all form as it
were but one collective trustee, and therefore must execute the duties of
the office in their joint capacity. It is not uncommon to hear one of
several trustees spoken of as the acting trustee, but the Court knows no
such distinction; all who accept the office are in the eyes of the law]
acting trustees. If anyone refuse or be incapable to join, it is not
competent for the others to proceed without him, but the administration of
the trust must in that case devolve upon the Court. However, the act of one
trustee done with the sanction and approval of a co-trustee may be regarded
as the act of both. But such sanction or approval must be strictly proved."
However, the said decision cannot be applied to the fact situation of this
case in view of the facts and the evidence placed on record.
For the aforesaid reasons, we hold that the impugned judgment and order(s)
of the High Court and the order of the JCC are legal and valid and the same
cannot be interfered with by this Court in exercise of its appellate
jurisdiction. The appeal is dismissed.
Since the appeal against the findings and penalties imposed against the
deceased Vijay Mehta is pending before the Civil Court which is being
pursued by his legal representatives and therefore, the Civil Court is
required to examine the said case independently without being influenced by
the observations and reasons assigned by us in this judgment. We would like
to make it very clear that the said appeal is required to be examined in
the backdrop of the legal grounds and contentions urged therein
independently and dispose the same in accordance with law.
.....................................................................J.
[V. GOPALA GOWDA]
.....................................................................J.
[C.NAGAPPAN]
New Delhi,
March 12, 2015
ITEM NO.1A-For Judgment COURT NO.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). ....../2015 arising from SLP(C) No. 4148/2011
CHARU KISHOR MEHTA Appellant(s)
VERSUS
JT.CHARITY COMMR. GR. BOMBAY REG. & ORS. Respondent(s)
Date : 12/03/2015 This appeal was called on for pronouncement of JUDGMENT
today.
For Appellant(s) *
For M/s. Khaitan & Co.
For Respondent(s) Mr. Sandeep Gupta, Adv.
For K. Ashar & Co.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the
Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
Leave granted.
The appeal is dismissed in terms of the signed Reportable
Judgment.
(VINOD KR.JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
(* None appeared)
-----------------------
[1] AIR (32) 1945 Privy Council 23
[2] (1963) 3 SCR 623
[3] (2005) 1 SCC 172
[4] (2005) 1 SCC 457
[5] (1942) 1 MLJ 272
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