Judgment 1. This is an Originating Summons filed under Rule 238 of the Bombay High Court (Original Side) Rules (hereinafter referred to as “the Rules”). 2. The plaintiff and defendant Nos.2 and 3 are the permanent trustees of the first defendant trust which was established under an indenture of trust dated 5th July, 1978 and which is registered under the Bombay Public Trusts Act, 1950 (BPT Act). Defendant Nos.4 to 11 are described by the plaintiff as purported trustees. Defendant Nos.12, 13 and 14 are also permanent trustees. Defendant Nos.15 and 16 are described as term trustees. Defendant Nos.1, 3 and 5 to 11 are the contesting defendants. The remaining defendants support the plaintiff. 3(A). On 12th December, 2011, a preliminary objection as to jurisdiction under section 80 of the BPT Act was raised. During the course of the arguments on the preliminary issue, Mr. Chagla also raised another preliminary objection under section 51 of the BPT Act. I answered the preliminary issues in the negative and directed the parties to address me on the merits stating that I would give my reasons for the decision on the preliminary issues while dealing with the merits. While replying to the arguments on merits on behalf of the plaintiff, two further preliminary objections were raised based on clause 11(v) of the trust deed and under the Limitation Act. I will, however, answer the preliminary issues in the following order :- (I) Whether the jurisdiction of the Court to interpret the clauses of the trust deed is barred by virtue of clause 11(v) thereof? (II) Whether this Court lacks inherent jurisdiction to entertain and try this Originating Summons in view of section 80 of the Bombay Public Trusts Act, 1950? (III) Whether the Originating Summons is not maintainable as the plaintiff had not obtained the permission of the Charity Commissioner under section 51 of the BPT Act to file it? (IV) Whether the Originating Summons is barred by limitation? 4. I will refer to the relevant facts, the clauses of the trust deed and the submissions in respect thereof while dealing with the merits of the matter. They are not relevant to the preliminary issues. For the purpose of the preliminary issues, it is sufficient to note that the plaintiff seeks only the interpretation of certain clauses of the trust deed. 5. They are not relevant to the preliminary issues. For the purpose of the preliminary issues, it is sufficient to note that the plaintiff seeks only the interpretation of certain clauses of the trust deed. 5. It was clarified on behalf of the plaintiff that this Originating Summons is filed only under Rule 238, which reads as under: “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 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. (I) Whether the jurisdiction of the Court to interpret the clauses of the trust deed is barred by virtue of lause 11(v) thereof? Mr. Chagla submitted that as clause 11(v) of the trust deed itself provides for a mechanism for the interpretation of the provisions of the trust deed the jurisdiction of this Court to do so is barred. 6. (I) Whether the jurisdiction of the Court to interpret the clauses of the trust deed is barred by virtue of lause 11(v) thereof? Mr. Chagla submitted that as clause 11(v) of the trust deed itself provides for a mechanism for the interpretation of the provisions of the trust deed the jurisdiction of this Court to do so is barred. 6. Clause 11(v) of the trust deed reads as under :- “Clause 11: For the accomplishment of the Trusts 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:- (v) To decide all questions arising in the administration of the trusts including all questions relating to the interpretation of these presents or otherwise concerning or touching these presents or to any clause or thing therein contained or touching or concerning anything or matter relating to or connected with or arising out of these presents or the operation thereof, the decision of the Trustees on all or any of the matters aforesaid shall be final. 7. Clause 11(v) does not bar the jurisdiction of the Court. It is relevant in the exercise of discretion when the Court is called upon to interpret the provisions of the trust deed. Parties cannot either by contract or any other instrument annul the jurisdiction of the Court conferred upon it by law. Clause 11(v) is relevant to the exercise of discretion by the Court and not to the existence of it’s jurisdiction to interpret the provisions of a trust deed in any proceeding, including an Originating Summons. 8. If, for instance, the Court finds that the interpretation of the other provisions of the trust deed by the majority of the trustees is motivated, absurd, perverse or malafide, a court or tribunal would not be prevented from correcting the interpretation. If, however, more than one interpretation is possible and provided the decision is rendered bona-fide under clause 11(v), normally the court or tribunal would not interfere with the decision of the trustees. Even where a term is capable of more than one interpretation, it is possible that the trustees exercise of choice is motivated or extraneous and not because they bona-fide believe that to be the appropriate interpretation. 9. Mr. Even where a term is capable of more than one interpretation, it is possible that the trustees exercise of choice is motivated or extraneous and not because they bona-fide believe that to be the appropriate interpretation. 9. Mr. Chagla relied upon the judgment of the Supreme Court in Nagappav. Dodda Bharamappa & Anr. (2002) 9 SCC 689 in support of his contention based on clause 11(v). The judgment militates against the submission. It, in fact, suggests that if, under the guise of nterpretation, the trustees exercise their powers of interpretation to change the object of the trust, the Court can always hold to the contrary. In that case, the trust was constituted for establishing institutions for the social and economic advancement of Muslims and charitable objects recognized by Muslim laws. A special general body meeting of the trust resolved thus :- “It was decided to further clarify the clause in the trust deed regarding the purpose of the Trust as mentioned in p. 5 of the trust deed as: The income of the Trust as well as the Shadi Mahal building proposed to be erected shall be made available to all communities irrespective of religion, caste or creed.” The trust, accordingly, sought exemption from tax under section 11 of the Income Tax Act, 1961. In view of section 13, the exemption under section 11 was not available, inter-alia, if the income of the trust was to be used for the benefit for any particular religious community. The Supreme Court held as under :- “6. On behalf of the Trust it was submitted that the resolution of the general body of the Trust passed on 20-4-1975 operated and that, therefore, the benefits of the Trust were not restricted to any particular community or religion. Reliance in this behalf was placed upon clause (xiv) of the trust deed which entitles the general body of the trustees, by majority of the trustees attending the meeting, to “decide the meaning and scope of any of these clauses …”. The Trust is created for the purposes of establishing institutions for the educational, social and economic advancement of the Muslims and for religious and charitable objects recognized by Muslim law. The resolution of 20-4-1975 purports to change the object of the Trust so that the benefits thereof are made available to all communities, irrespective of religion, caste or creed. The Trust is created for the purposes of establishing institutions for the educational, social and economic advancement of the Muslims and for religious and charitable objects recognized by Muslim law. The resolution of 20-4-1975 purports to change the object of the Trust so that the benefits thereof are made available to all communities, irrespective of religion, caste or creed. This is not deciding the meaning and scope of a clause of the trust deed but an attempt to alter the object of the trust deed, which is not contemplated by the said clause (xiv) and is impermissible except by means of an amendment of the trust deed by the settlors. [emphasis supplied] 10. The Supreme Court, therefore, did not accept the trustees purported clarification of the trust deed and construed the same as per the correct interpretation thereof. The Supreme Court obviously did not consider the jurisdiction of the Courts to interpret the provisions of the trust deed to be barred merely because under the deed, the trustees were entitled to decide the meaning and scope of the clauses thereof. 11. I will deal with the effect of clause 11(v) later while considering whether I ought to exercise discretion to entertain this Originating Summons. It is sufficient to observe at this stage that clause 11(v) does not bar the jurisdiction of the Court to interpret the provisions of a trust deed. 12. The preliminary issue is, therefore, answered in the negative. II. Whether this Courtlacks inherent jurisdiction to entertain and try this Originating Summons in view of section 80 of the Bombay Public Trusts Act, 1950? 13. Mr. Chagla submitted that in view of section 80 of the BPT Act, an Originating Summons is not maintainable in the case of a public trust where the subject matter of the Originating Summons is covered by the provisions of the BPT Act. His submissions are these. The interpretation of the provisions of a public trust falls exclusively within the jurisdiction of the Charity Commissioner. An Originating Summons is no different from a regular suit. Where the jurisdiction of a civil court is barred by virtue of section 80, the Rules cannot confer such jurisdiction upon the High Court in exercise of its civil jurisdiction. The Rules relating to Originating Summons which fall under Chapter XVII must be read with the provisions of the BPT Act. Where the jurisdiction of a civil court is barred by virtue of section 80, the Rules cannot confer such jurisdiction upon the High Court in exercise of its civil jurisdiction. The Rules relating to Originating Summons which fall under Chapter XVII must be read with the provisions of the BPT Act. Where a substantive suit is barred, an Originating Summons cannot confer jurisdiction on a civil court. Mr. Chagla submitted that all the questions framed in the Originating Summons for the determination/ interpretation of this Court fall within the exclusive jurisdiction of the Charity Commissioner under section 22 of the BPT Act and, therefore, in view of section 80, this Court lacks inherent jurisdiction to entertain this Originating Summons. 14. Sections 22 and 80 of the BPT Act read as under :- “22. Change.-(1) Where any change occurs to any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report shall be made in the prescribed form. [(1A) Where the change to be reported under sub-section (1) relates to any immovable property, the trustee shall along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the Sub-Registrar referred to in sub-section (7) of section 18. Such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in this behalf] (2) For the purpose of verifying the correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Deputy or Assistant Charity Commissioner may [hold an inquiry in the prescribed manner.] (3) If the Deputy or Assistant Commissioner, as the case ay be, after receiving a report under sub-section (1) and holding an inquiry, if necessary under sub-section (2), or merely after holding an inquiry under the said sub-section (2), is satisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, [or that the trust should be removed from the register by reason of the change, resulting in both the office of the administration of the trust and the whole of the trust property ceasing to be situated in the State], he shall record a finding with the reason therefore [to that effect; and if he is so satisfied, he shall record a finding with the reasons therefore accordingly]. [Any such finding shall be appealable to the Charity Commissioner. The Deputy or Assistant Charity Commissioner shall [amend or delete the entries] in the said register [in accordance with the finding which requires an amendment or deletion of entries] and if appeals [or applications] were made against such finding, in accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made [subject to any further amendment on occurrence of a change or any cancellation of entries, shall] be final and conclusive. (4) Whenever an entry is amended [or the trust is removed from the register] under sub-section (3), the Deputy or Assistant Charity Commissioner, as the case may be, shall forward the memorandum furnished to him under sub-section (1A), after certifying the amended entry [or the removal of the trust from the register] to the Sub-Register referred to in sub-section (7) of Section 18, [for the purpose of filing in Book No.1 under section 18 of the Indian Registration Act, 1908 [XVI of 1908], in its application to the State of Maharashtra]. ............... 80. ............... 80. Bar of jurisdiction.- Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, [and in respect of] which decision or order of such officer or authority has been made final and conclusive.” 15. This is the first time since the enactment of the BPT Act, 1950, over sixty years ago that such an objection has been raised. If Mr. Chagla’s submission is upheld, it would render the procedure of Originating Summons redundant so far as public trusts are concerned. It would render the hundreds, if not thousands, of Originating Summons and the orders passed therein, including by this Court and other High Courts, which permit Originating Summons, and the Supreme Court, void. Such consequences, however, cannot determine the decision on the preliminary objection as to the jurisdiction of the Court. 16. Over the past few years, several proceedings have been filed by the parties against each other pertaining to the trust. For the purpose of this preliminary objection, the contesting defendants referred to two proceedings and the orders passed therein in support of the contention that the question of interpretation of the clauses of the trust deed has been held to be within the exclusive jurisdiction of the Charity Commissioner. It was submitted, therefore, that it is not open to me to take a contrary view. 17. The plaintiff filed Short Cause Suit No.1997 of 2006 in the Bombay City Civil Court, inter-alia, to challenge the convening of a meeting of the trustees by one of the trustees. The suit was dismissed by an order and judgment dated 21st / 24th September, 2007. Mr. Chagla relied upon the fact that the learned Judge dealt, inter-alia, with the interpretation of the said clauses of the trust deed except clause 11(j). If the matter fell within the jurisdiction of the Bombay City Civil Court, it was necessary to interpret the clauses as the grant or refusal of the reliefs claimed therein would depend on the same. The learned Judge held that there was no bar to the entertainment, trial and decision of the matter before the court, including under section 80 of the BPT Act. The contesting defendants herein filed First Appeal No.266 of 2007. Cross-objections were also filed. The learned Judge held that there was no bar to the entertainment, trial and decision of the matter before the court, including under section 80 of the BPT Act. The contesting defendants herein filed First Appeal No.266 of 2007. Cross-objections were also filed. Paragraph 3 of the judgment in this appeal reads as under :- “3. During the course of hearing, counsel appearing for the Appellants had sought an adjournment of the proceedings yesterday in order to consider the position of the Appellants specifically with reference to the objection on the ground of jurisdiction. All the learned counsel appearing for the Appellants have informed the Court today that on a considered view of the legal position and particularly having regard to the judgment of the Supreme Court in Church of North India (supra) the Appellants submit to the correctness of the cross objection, in the facts of the suit out of which the First Appeals arise in this case. Having regard to the concession which has been made on behalf of the Appellants, which in the view of the Court is consistent with the law laid down by the Supreme Court in Church of North India(supra), the judgment of the Learned Trial Judge has been rendered without jurisdiction. The findings which have been tendered by the Learned Trial Judge on the merits of the case consequently do not survive. This position is not in dispute between the learned counsel appearing on behalf of all the parties before the Court. It is agreed and understood by the learned counsel that the suit would stand dismissed as being without jurisdiction. There shall be an order in these terms.” [emphasis supplied] 18. Mr. Cama submitted that the observations were based on a concession of counsel and, therefore, do not constitute the judgment of the Court. I do not agree. The learned Judge has expressly held the concession to be “consistent with the law laid down by the Supreme Court in Church of North India” and, therefore, held the impugned judgment to have been rendered without jurisdiction. This is a finding of the Court, independent of the concession. It, in fact, endorses the view that the concession was correctly made. It is not open, therefore, for me to take a different view. 19. The judgment, however, does not deal with the question of jurisdiction in the present case. That was a civil suit. This is a finding of the Court, independent of the concession. It, in fact, endorses the view that the concession was correctly made. It is not open, therefore, for me to take a different view. 19. The judgment, however, does not deal with the question of jurisdiction in the present case. That was a civil suit. This is an Originating Summons. The question before me neither arose nor was considered in the judgment. The judgment, therefore, is not conclusive on the preliminary issue in this case. 20(A). The second proceeding is Application No.17 of 2006 filed under section 41-D of the BPT Act before the Charity Commissioner by the plaintiff. The application was for removal/dismissal of respondent Nos.10, 1, 8, 3, 6, 11 and 12 who are defendant Nos.2, 3, 4, 8, 9, 13 and 14 respectively herein. The application was disposed of by an order of the Joint Charity Commissioner dated 25th September, 2009. As pointed out by the contesting defendants, the order expressly dealt with the construction and ambit of the opening part as well as sub-clause (h) of clause 11. For instance, the contentions that the decision to delegate powers is to be taken collectively and not individually, was rejected. It was held that no fault could be found in the delegation of powers by one trustee to another, either by the execution of the power of attorney or by appointing the managing trustee. (B) The order of the Assistant Charity Commissioner was challenged in Writ Petition No.9501 of 2010 which was dismissed by an order and judgment dated 2nd March, 2010. The learned Judge observed that the order passed by the Assistant Charity Commissioner was not without jurisdiction. (C) The appeal against this order being Letters Patent Appeal No.268 of 2010 was dismissed by an order and judgment dated 1st December, 2010. In paragraph 10 the Division Bench held that the order of the Assistant Charity Commissioner cannot be said to have been made without jurisdiction. 21. The orders and judgments in Application No.17 of 2006 are not conclusive as to the preliminary issue. The effect of these judgments no doubt is that the observations of the Assistant Charity Commissioner as to the interpretation of the provisions of the trust deed are not without jurisdiction. 21. The orders and judgments in Application No.17 of 2006 are not conclusive as to the preliminary issue. The effect of these judgments no doubt is that the observations of the Assistant Charity Commissioner as to the interpretation of the provisions of the trust deed are not without jurisdiction. In other words, the effect of these orders and judgments is that the Charity Commissioner has the jurisdiction to interpret the provisions of a trust deed while dealing with an application under section 41-D. The question is whether in view of the fact that the Charity Commissioner has jurisdiction to interpret a trust deed for the purpose of deciding applications under section 41-D or 22, this Court has no jurisdiction to consider an Originating Summons in which the plaintiff seeks an interpretation of the provisions of the trust deed. This issue has not been dealt with by the above order and judgments. 22. Mr. Cama submitted that for the bar under section 80 of the BPT Act to operate, it is necessary to establish the following:- (i) The proceedings must be before a civil court. (ii) The proceedings must call for a decision or require the civil court to deal with any question which is by or under the BPT Act to be decided or dealt with by an officer or authority under the Act; and (iii) Such decision or order has been made final and conclusive. 23. Mr. Cama submitted that while dealing with an Originating Summons or even a regular suit, this Court is not a civil court within the meaning of the expression in section 80. He submitted that the words “Civil Court” in section 80 relate only to the Bombay City Civil Court. Accordingly, the bar under section 80 is only against the Bombay City Civil Court and not any other court. The submission was based on the definition of “Court” in section 2(4) which reads as under : “(4) “Court means in the Greater Bombay, the City Civil Court and elsewhere, the District Court;” 24. The submission is based on the erroneous presumption that the definition of “Court” in section 2(4) applies to the expression “Civil Court” in section 80. There is a distinction in the BPT Act between a “Court” and a “Civil Court”. The expression “Civil Court” in section 80 is wider than the definition of “Court” in section 2(4). The submission is based on the erroneous presumption that the definition of “Court” in section 2(4) applies to the expression “Civil Court” in section 80. There is a distinction in the BPT Act between a “Court” and a “Civil Court”. The expression “Civil Court” in section 80 is wider than the definition of “Court” in section 2(4). The expression “Civil Court” must be construed as normally understood and used and is not restricted to the definition of a “Court” in section 2(4). 25. It was necessary for the Legislature to define the term “Court” as certain provisions of the BPT Act also use the term “Court” while conferring jurisdiction. For instance, section 41-D provides that a trustee aggrieved by an order made under sub-section (1) may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order. The expression in section 41-D(5) is not “Civil Court”, but “Court”. The term “Court” therefore in section 41-D(5) must mean the Bombay City Civil Court as defined in section 2(4). The Legislature obviously intended providing a forum for challenging orders passed under section 41-D(1). The Legislature having used the expressions “Civil Court” and “Court” it must be presumed that different meanings were ascribed to them. 26. Mr. Cama further submitted that the bar under section 80 would operate in respect of any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act. He submitted that the Charity Commissioner has no power to adjudicate upon or decide or deal with any question while acting under section 22. According to him, under section 22, the Charity Commissioner can only enter in the record, information forwarded to him which is merely a clerical act. He submitted that merely because the Charity Commissioner has been exercising these powers over the past sixty years does not make any difference. The Charity Commissioner does not have the power to decide or deal with the validity of the change report. His is only a mechanical, clerical function under section 22 and nothing more. 27. The submission is not well founded on principle. It is also contrary to the judgments of this Court. Mr. The Charity Commissioner does not have the power to decide or deal with the validity of the change report. His is only a mechanical, clerical function under section 22 and nothing more. 27. The submission is not well founded on principle. It is also contrary to the judgments of this Court. Mr. Chagla rightly submitted that the term “correctness” in section 22(2) includes within its ambit, the existence of any change having occurred in any of the particulars recorded in the register as well as the validity thereof. If it were otherwise, the language of section 22 would have been entirely different. It would have required the Deputy or Assistant Charity Commissioner to merely ascertain the correctness of the entry as a question of fact and to ascertain whether any change had occurred only as a matter of fact and nothing more. Sub-section (2) requires the Deputy or Assistant Charity Commissioner to hold an enquiry in the prescribed manner. The nature of the enquiry under Rule 7 of the Bombay Public Trust Rules, 1951, negates Mr. Cama's submission. The Rule reads as under : “7. Manner of Inquiries.- Except as otherwise provided in the Act and these rules, inquiries under or for purposes of sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2)(a), 47, 50A, 51, 54 (3) and 79AA (2) or any other inquiry which the Charity Commissioner may direct to be held for the purpose of the Act, shall be held as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Causes Courts Act, 1882, and elsewhere under the Provisional Small Causes Courts Act, 1887, in any inquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on this behalf; Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, made by the party in person.” 28(A). In Balaji& Anr. vs Punjabi & Anr. 2002 1 BCR 155, a learned single Judge of this Court held in paragraph 16 that the enquiry conducted by the Assistant Charity Commissioner under section 22 is in the nature of a judicial enquiry and in such an enquiry, he must not only consider the effect of the change, but determine whether the change is validly effected. 2002 1 BCR 155, a learned single Judge of this Court held in paragraph 16 that the enquiry conducted by the Assistant Charity Commissioner under section 22 is in the nature of a judicial enquiry and in such an enquiry, he must not only consider the effect of the change, but determine whether the change is validly effected. It was held that the Assistant Charity Commissioner had the jurisdiction to exercise his powers to enquire into the legality of the change. (B) In Vithalraos/o Sambhajirao Kharpade & ors. v. Motiram s/o Narsingrao Birajdar & ors. (2010) 1 Mh.L.J. 977 a learned single Judge of this Court held : “10. It has been contended by learned counsel for the respondents that the enquiry under section 22 of th Act is of judicial character and is not merely an empty formality. Reliance is placed on judgment reported in 1980 Mh.L.J. 372 in the matter of Jagatnarayansingh Swarupsingh Chithere and others vs. Swarupsingh Education Society and another. It is observed in paragraph No.8 of the judgment thus : "8. Therefore, though prima facie it appears to be a mere change, the scheme of the Act contemplates qua the change under consideration an inquiry of a judicial character with an appeal therefrom to the Charity Commissioner and a further application under section 72 to the District Judge and yet another appeal therefrom to the High Court against which appellate judgment of the High Court, a still further appeal may, in a given case, lie under the Letters Patent. Such being the judicial scrutiny and the extensive gamut of the inquiry under section 22 of the Act, it is obvious that this inquiry cannot be a mere factual process or one purely formal in nature. Investigation into the legality and validity of the change is implicit. The inquiry is a judicial process partaking the character of a judicial adjudication. An elemental pre-requisite or the minimal requirement of a judicial inquiry and a judicial process is compliance with the principles of natural justice. These principles, though not embodied rules, constitute none the less an important facet and pivot of the judicial process. Inquiry behind the back of an aggrieved party is best avoided lest it stands vitiated. One affected must be noticed and heard. These principles, though not embodied rules, constitute none the less an important facet and pivot of the judicial process. Inquiry behind the back of an aggrieved party is best avoided lest it stands vitiated. One affected must be noticed and heard. Basic lacuna in that respect may well render the inquiry and/or the order therein almost non est at least qua the aggrieved absent party left unheard and, therefore, unheeded." [emphasis supplied] (C) A Division Bench of this Court in Murlidhars/o Janrao Kale & ors. vs. State of Maharashtra & ors., (2011) Mh.L.J. 849 held as under:- “8. Perusal of Section 80 of the Bombay Public Trusts Act shows that the jurisdiction to decide the validity of the elections, changes in the board of trustees or trustees having thus been conferred with the Assistant Charity Commissioner, the legislature has imposed bar against entertaining a suit by Civil Court. There is no provision by which the Education Officer or the Deputy Director of Education or the Director of Education has any authority or power to decide these issues. In the case of Jagatnarayansingh Swarupsingh Chithere and others Versus Swarupsingh Education Society and another, reported in 1980 Mh.L.J. 372 this Court held that the extent of jurisdiction under Section 22 of the Act is not limited to the only factum of change but it extends its legality and validity as well.” 29. In view of the above judgments, it is not necessary to consider the other provisions of the Act relied upon by Mr. Chagla including sections 73, 74, 79 and 80 and the judgment of the Supreme Court in K. Shamrao & ors. vs. Assistant Charity Commissioner (2003) 3 SCC 563 . 30. The submission on behalf of the contesting defendants that the bar under section 80 is not limited to any particular type of proceeding but is wider is well founded. This is clear from the plain language of section 80. It does not bar merely suits or any particular type of proceeding. It is a blanket bar against any civil court deciding any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act. This is clear from the plain language of section 80. It does not bar merely suits or any particular type of proceeding. It is a blanket bar against any civil court deciding any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act. The jurisdiction of any civil court, therefore, to decide or deal with such questions is barred not merely in respect of a particular type of proceeding but in respect of proceedings of all types in which such questions arise. 31. Mr. Cama submitted that this court while deciding an Originating Summons is not a civil court as the power of this court to entertain an Originating Summons is derived only from Chapter XVII of the Rules, that the said rules are made in exercise of powers under clause XXXVII of the Letters Patent and are a special law and, therefore, override the provisions of section 80 of the BPT Act, which is a general law relating to trusts. Mr. Cama relied upon the judgment of the Supreme Court in Iridium India Telecom Ltd. v. Motorala Inc. AIR 2005 SC 514 in respect of this contention. 32. The submission is based on the erroneous premise that the power of this Court to entertain an Originating Summons is derived only from Chapter XVII of the Rules. Section 128 falls within part X of the CPC which deals with the power of the High Court to make rules, regulating their own procedure and procedure of civil courts. An Originating Summons is recognized in the CPC itself. Section 128 of the CPC reads as under :- “128. Matters for which rules may provide.-(1) Such rules shall be not inconsistent with the provisions in the body of this Code, but, subject thereto, may provide for any matters relating to the procedure of Civil Courts. (2) In particular, and without prejudice to the generality of the powers conferred by sub-section (1), such rules may provide for all or any of the following matters, namely:- (a)................. (g) procedure by way of originating summons.” It is axiomatic that the CPC recognizes the filing of Originating Summons before the civil courts for if it did not, section 128 would not provide for rules in respect thereof. It follows therefore, that Originating Summons may be entertained by civil courts. 33. (g) procedure by way of originating summons.” It is axiomatic that the CPC recognizes the filing of Originating Summons before the civil courts for if it did not, section 128 would not provide for rules in respect thereof. It follows therefore, that Originating Summons may be entertained by civil courts. 33. The origin of an Originating Summons is traced by Mr. Justice Chitty in the case of Re BUSFIELD WHALEY v. BUSFIELD ; (1886) 32 Ch.D 123 to the year 1852 by the passing of 15 & 16 Vict. c. 86: “An originating summons first arose under 15 & 16 Vict. c. 86, s. 45, and was confined to the simple case of an order for the administration of the personal estate of a dead man. This provision was left untouched until the Orders of 1883 were issued, which for the first time dealt with the Chancery Consolidated Orders of 1860 as a whole. An originating summons is now issued under Order LV. of the Rules of 1883. This order has greatly enlarged the scope of an originating summons and made it applicable to new subjects, as for instance, the execution of trusts. By the Orders of December, 1885, the scope has been still further extended. The main difference between a writ of summons and an originating summons is, that in the one case the proceedings are in Court, and there are or may be pleadings, whereas in the other case the proceedings are in Chambers, and there are no pleadings. As to all the numerous cases to which by the Orders of 1883 and 1885 an originating summons was for the first time extended, it is obvious that there could not have been any previously existing practice.” 34. The practice of Originating Summons in India has been recognized and provided for in the Civil Procedure Code, 1908 i.e. much before the Rules were framed. The Rules regulate the same. 35(A). Mr. Setalwad, supporting Mr. Cama, submitted that even assuming that section 80 bars the jurisdiction of this court to entertain an Originating Summons, it would make no difference for section 80 must give way to the rules of this Court. He relied upon paragraphs 9 and 10 of the judgment of the Supreme Court in the case of Shardadevi v. State of Bihar, (2002) 3 SCC 705 , which read as under :- “9. He relied upon paragraphs 9 and 10 of the judgment of the Supreme Court in the case of Shardadevi v. State of Bihar, (2002) 3 SCC 705 , which read as under :- “9. A Letters Patent is the charter under which the High Court is established. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent. 10. The question which thus arises is whether Section 54 of the said Act excludes an appeal under the Letters Patent. Section 54 of the said Act reads as under: “54. Appeals in proceedings before Court.—Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order 45 thereof.” (B) The provisions of section 54 of the Land Acquisition Act are different from section 80. They are wider. Further in paragraph 9, the Supreme Court observed that the right to entertain the appeal would not get excluded “unless the concerned statutory enactment excludes an appeal under the Letters Patent”. Thirdly, the decision was based on the fact that the Letters Patent is not an enactment. Section 54 of the Land Acquisition Act was not inconsistent with or contrary to any enactment as the Supreme Court held that the Letters Patent was not an enactment. This judgment is, therefore, of no assistance to Mr. Setalwad. Moreover, as I have held earlier, an Originating Summons is recognized and provided for in section 128(g) of the CPC itself which is an enactment. 36. This judgment is, therefore, of no assistance to Mr. Setalwad. Moreover, as I have held earlier, an Originating Summons is recognized and provided for in section 128(g) of the CPC itself which is an enactment. 36. It is not necessary to consider the submission regarding the Rules overriding Section 80 of the BPT Act as section 128(g) specifically recognizes the jurisdiction of the civil courts to entertain an Originating Summons. The rules, therefore, regulate this jurisdiction conferred by the CPC. Nor is it, therefore, necessary to refer to a judgment of the Division Bench of the Calcutta High Court in the case of State Bank of India v. Mohuragang Gulma Tea Estate & Anr., (1988) Cal. L.T. 167 = MANU/ WB/0189/1988 relied upon by Mr. Setalwad in respect of the maintainability of the Originating Summons. In paragraph 1, the Division Bench had held that the rules of the High Court of Calcutta have special significance in regard to the procedural aspect for the purpose of due administration of justice ; that it had stood the test of time and the powers of the High Court to frame the rules had been preserved under the Letters Patent, which is saved by the provisions of the CPC. 37. Mr. Cama submitted that the maintainability of an Originating Summons in such matters was upheld by the judgment of a Division Bench of this Court in Jamsheed Kanga v. Parsi Panchayat Funds & Properties, 2011 (3) Mh. L.J. 966. The appellants in that case took out the Originating Summons for the determination of questions relating to the powers/authority of the trustees of the Parsi Panchayat’s funds and properties, the rights of the beneficiaries under a Deed of Trust of 1884 and for the proper administration of the Trust. The respondents challenged the maintainability of the Originating Summons on the ground that it raised issues which were purely of a religious nature relating to the religious tenets, customs, traditions and beliefs of the community. After referring to Chapter XVII of the Bombay High Court (O.S.) Rules, the Division Bench held as under :- “15. A beneficiary under a Deed of Trust is entitled in law to institute an Originating Summons for the determination of any question affecting the rights or interests of persons claiming to be beneficiaries. After referring to Chapter XVII of the Bombay High Court (O.S.) Rules, the Division Bench held as under :- “15. A beneficiary under a Deed of Trust is entitled in law to institute an Originating Summons for the determination of any question affecting the rights or interests of persons claiming to be beneficiaries. In the action which emanates from an Originating Summons, the applicant may seek a direction to the trustees to do or abstain from doing any particular act in their character as trustees. The jurisdiction of the Court is discretionary, for if the Court is of the view that the matter in respect of which relief is sought cannot conveniently and properly be disposed of on an Originating Summons, the Judge may decline to pass an order on the summons and refer parties to a suit. Where the Court is of the view that the matter is fit to be dealt with on an Originating Summons, it is vested with a broad jurisdiction to pronounce such judgment as the nature of the case shall require. The order made by the Judge is drawn up as a decree and the Court is empowered to issue directions touching the carriage or the execution of the decree. Precedent: 16. In Vithaldas Cursondas vs. Dulsukhbhai Vadilal, 1919 (21) BLR 972. Mr. Justice Pratt, speaking for this Court held that "the Rules do not forbid questions of fact being determined on an Originating Summons and this form of action is not always inappropriate whenever there is a question of fact in dispute". But, ruled the Court, the procedure of an Originating Summons should not be applied "where the disputed facts are of such complexity as to involve a considerable amount of oral evidence". In Rama Aziz vs. Balkrishna K. Mehta, 1993 (1) Bom. C.R. 267 Mr. Justice B.N. Srikrishna (as the Learned Judge then was) held that the Court while exercising power in an Originating Summons, "is not determining a lis". The Court does not adjudicate upon the rights and liabilities of parties. In Lyla Darius Jehangir vs. Bakhtawar Lentin, 2007 (1) Bom.C.R. 915 a Division Bench of this Court presided over by Mr. Justice R.M. Lodha (as the Learned Judge then was) affirmed the principles which were formulated in the judgments of the Learned Single Judges both in Vithaldas Cursondas and in Rama Aziz Parpia. In Lyla Darius Jehangir vs. Bakhtawar Lentin, 2007 (1) Bom.C.R. 915 a Division Bench of this Court presided over by Mr. Justice R.M. Lodha (as the Learned Judge then was) affirmed the principles which were formulated in the judgments of the Learned Single Judges both in Vithaldas Cursondas and in Rama Aziz Parpia. The basic principle which must guide the Court in such cases has been explained with felicity in the judgment of Chief Justice M.C. Chagla, speaking for a Division Bench in Mazda Theatres Ltd. vs. Gordhandas Tribhuvandas Mangaldas. 1954 B.L.R. 1080. The Learned Chief Justice held that the only two questions which are required are that there must be a written instrument and what should be required to be done by the Court is the declaration of the rights of the person interested under the written instrument. Holding that the rules providing for the issuance of an Originating Summons must be "very broadly and liberally interpreted", Chagla, C.J. held as follows : "The right contemplated by that rule is any right, and the whole object of that rule is to make a procedure available to parties which is both cheap and expeditious for determination of disputes as to construction of a written instrument, which dispute could be settled by the Court interpreting the instrument and determining what the rights of the parties are. One would have thought that r. 241 was precisely intended to cover a case like this where a lessor and a lessee are disputing their mutual rights and the question of those rights can be determined effectively and finally by the Court construing the relevant provision of the lease and deciding what the rights of the parties are. It is perhaps not necessary to point out that our rule is based on the English r.1 of O.LIVA, and the view consistently taken by the English Courts that the word "instrument" used in the rule was meant to receive a wide construction and applied to any written document under which any right or liability whether legal or equitable, existed; and there are innumerable cases in the books where a lease has been construed and the rights of the lessor and the lessee determined." The view of the Learned Single Judge that he had no jurisdiction to entertain the Originating Summons was consequently reversed.” 38. The challenge to the maintainability of the Originating Summons in Parsi Panchayat’s case was on an entirely different basis namely that it raised issues which were purely of a religious nature relating to the religious tenets, customs, traditions and beliefs of the community. The judgment therefore, does not preclude a challenge to the maintainability of an Originating Summons on other grounds. 39. Mr. Cama, however, relied upon paragraph 23 of a judgment of the Supreme Court in Sarva Shramik Sangh v. Indian Smelting & Refining Co. Ltd. (2003) 10 SCC 455 :- “23. Inferentially, from the above it is sought to be asserted that there is a statutory recognition in Section 59 as to the entitlement of a worker, at his option or choice to have recourse to any one of the statutory remedies under the different Acts and therefore, all and every question relating to the redress sought including as to whether a person is an “employee” can also be decided by the courts under the Maharashtra Act. This too general and wide assertion completely overlooks the stipulation made, “If any proceeding in respect of any matter falling within the purview of this Act is instituted” in the said provision. As to what matters fall within the purview of the Act is to be found outside Section 59 and there is no such indicator in this regard in Section 59 itself. That was, what has been specifically, elaborately and analytically found dealt with in Cipla case by the learned Judges and mere non-mention of Section 59 in the judgment is no justification to contend that they were either unaware of it or that a relevant and necessary provision which ought to have been considered has been overlooked, which if had been adverted to the result would or ought to be different from the one taken, in that case. We have carefully gone through the construction placed upon the statutory provisions noticed and conclusions drawn as to the class or category of matters which only would fall within the purview of the Maharashtra Act and the necessity for any complainant to answer the description, as a condition precedent, to be or having been treated by the employer as his “employee” and the relationship of employee and employer with the employer against whom any such complaint of unfair labour practice is made and relief therefor sought is beyond controversy and common case or accepted position and that we are in respectful agreement with the same. The interpretation of the relevant provisions of the Maharashtra Act appears to be in tune with the legal sense of the words construed in the context of the statute and the jurisdiction of the authorities constituted thereunder. Such a construction paves the way for avoiding uncertainty as well as possible inconsistency or expression of contradictory views when more than one group chose to avail of different forums for similar kind of relief and therefore, could not be said to have resulted in serious injustice, hardship or anomaly to warrant the countenance of a different view. A careful, critical and analytical scrutiny of the various provisions which consciously and conspicuously use the words “employee” and “employer” in all the relevant provisions would postulate the pre-existing relationship of such employee and employer being an accepted/acceptable fact. Consequently, the question of ousting the jurisdiction of an assumed and unfound jurisdiction to be otherwise existing, does not at all arise.” The question in that case was whether merely because a particular statutory provision is not mentioned therein, it would affect the validity of a judgment on the ground that the court was either unaware of it or that the relevant and necessary provisions which ought to have been considered had been overlooked. It was not a case where the basis of the objection or claim was different. The ratio was sought to be challenged on the ground that the necessary provisions of law had not been considered. I do not read the judgment to hold that if the basis of a claim or defence is entirely different to the one considered in another judgment, it would be affected by the ruling in the earlier judgment. The ratio was sought to be challenged on the ground that the necessary provisions of law had not been considered. I do not read the judgment to hold that if the basis of a claim or defence is entirely different to the one considered in another judgment, it would be affected by the ruling in the earlier judgment. In Parsi Panchayat’s case, it was not contended that an Originating Summons is not maintainable in view of section 80 of the BPT Act. The issue of maintainability in the present case cannot be held to have been decided by the judgment in the Parsi Panchayat’s case. 40. Mr. Setalwad also invited my attention to various rules in chapter XVII to distinguish the nature of the proceedings in a regular suit and in an Originating Summons. He submitted that the entire procedure including the forms prescribed in the rules for the two proceedings is different. I do not find it necessary to refer to these provisions for I am of the view that a civil suit is, in substance, different from an Originating Summons necessitating the different rules being made and the forms being prescribed for a regular suit and an Originating Summons. In other words, the difference in the rules made and the forms prescribed does not determine the preliminary issue. Instead, it is the answer to the issue namely that an Originating Summons is in substance different from a regular suit that has determined the different rules made and forms prescribed for them. In other words, the rules and the forms do not indicate the nature of the proceedings. It is the difference in the nature of the proceedings that has resulted in different rules being made and the different forms prescribed. 41. This brings me to my reasons for answering the preliminary issue against the contesting defendants. 42. The first and fundamental difference between an Originating Summons and a regular suit or other proceedings in a civil court is that in an Originating Summons the court may only interpret the provisions of a trust deed. The court may determine the question but without the administration of the estate or the trust. 43. 42. The first and fundamental difference between an Originating Summons and a regular suit or other proceedings in a civil court is that in an Originating Summons the court may only interpret the provisions of a trust deed. The court may determine the question but without the administration of the estate or the trust. 43. Section 80 bars the jurisdiction of the civil court to decide or deal with any question which is to be decided or dealt with by any officer or authority under the BPT Act and in respect of which the decision or the order of such officer or authority has been made final and conclusive. Parties cannot merely seek the Assistant Charity Commissioner’s interpretation of a trust deed. The Assistant Charity Commissioner has no power akin to the powers under rule 238. He cannot decide the question of construction of a deed simpliciter. The Assistant Charity Commissioner has no power either under section 22 or any other provisions of the BPT Act to merely interpret the document or to merely determine the questions stipulated in rule 238. The questions stipulated in rule 238 may well fall for consideration of the Charity Commissioner in an application under section 22. He can, however, decide these questions only while considering the proceedings under section 22 which result in substantive orders one way or the other. The question of the decision of the Charity commissioner on the interpretation of the provisions of the trust deed attaining finality, therefore, does not arise. 44. Mr. Chagla submitted that the bar in section 80 is not against the filing of a particular proceeding, including a suit, but to the nature of the question that the civil court is invited to decide. The term “question” would include not merely the main question or relief claimed but every question even incidental to or necessary for the decision of the main question. Thus the main question or relief claimed may be one which does not fall within the ambit of the Assistant Charity Commissioner’s powers including under section 22. However, if an issue is to be considered and decided for the purpose of determining the main question or the relief claimed, it is also barred. He submitted that in this case every question raised falls within the jurisdiction of the Assistant Charity Commissioner. However, if an issue is to be considered and decided for the purpose of determining the main question or the relief claimed, it is also barred. He submitted that in this case every question raised falls within the jurisdiction of the Assistant Charity Commissioner. Moreover, the questions raised in the Originating Summons are not merely incidental questions, but main questions. 45. There is a distinction between : (a) the decision of the authority under the BPT Act on a question which is to be decided or dealt with by him and which decision has been made final and conclusive, and (b) the findings and decisions of the authority on questions/issues required to be dealt with in the process of arriving at such decisions which have been made final and binding. It is with respect to the former and not the latter that the jurisdiction of the civil court to decide or deal with is barred. The error in Mr. Chagla's submission is in equating the findings of the Assistant Charity Commissioner arrived at in proceedings under section 22 with his decision or order on the questions which are made final under the BPT Act. 46. For instance, in the proceedings under section 22, it may be necessary for the Assistant Charity Commissioner to decide the question of genuineness or admissibility of a document. Finality and conclusiveness cannot possibility be attached to such a decision barring the jurisdiction of the civil court in other proceedings from deciding the same, though the scope of the two proceedings are entirely different. 47. What is made final under section 22 is the question whether the change should be effected or not. The findings on the issues which may be required to be dealt with while arriving at this decision are not made final. What is barred by section 80 is the jurisdiction of the civil court to decide or deal with the question in respect of which the decision or order of the authority has been made final and conclusive. What is final and conclusive under section 22(3) is the decision regarding the amendment in the entries alone and not every aspect that was dealt with and decided in the proceeding leading to this decision. What is final and conclusive under section 22(3) is the decision regarding the amendment in the entries alone and not every aspect that was dealt with and decided in the proceeding leading to this decision. I will presume that the Charity Commissioner has the jurisdiction to decide the questions that have been raised in the Originating Summons in the course of considering the change reports that have been filed and that will no doubt be filed hereafter. While considering the application under section 22, the question that the Charity Commissioner deals with is whether the change has occurred in any of the entries recorded under the register kept under section 17 in regard to the public trust or whether the trust should be removed from the record by reasons of such change. In deciding these questions, the Charity Commissioner would no doubt be entitled to interpret the provisions of the trust deed. That however is not the end of the matter. The question then is whether his conclusion on issues required to be considered while deciding the question whether the change ought or ought not to be recorded are also made final and conclusive. 48. The answer lies in the last sentence of section 22(3) namely: “The amendments in the entries so made subject to any further amendment on occurrence of a change or any cancellation of entries shall be final and conclusive.” What is made final and conclusive is an amendment in the entires made pursuant to a decision under section 22. Section 22(3) does not make every part of the decision final and conclusive. Finality and conclusiveness is ascribed only to the amendments in the entries and not to every finding in respect of the decision to amend the entry. 49. The present Originating Summons does not challenge the amendments in the entries already made but only seeks an interpretation of the various clauses of the trust deed. That the interpretation of this court may affect the entries already made and the decision in respect of the future applications under section 22 is another matter altogether. 50. Mr. Chagla, in support of his submission, relied upon the judgment of the Supreme Court in Church of North India vs. Lavajibhai Ratanjibhai (2005) 10 SCC 760. The judgment does not deal with the maintainability of an Originating Summons. 51(A). 50. Mr. Chagla, in support of his submission, relied upon the judgment of the Supreme Court in Church of North India vs. Lavajibhai Ratanjibhai (2005) 10 SCC 760. The judgment does not deal with the maintainability of an Originating Summons. 51(A). The observations of the Supreme Court in respect of section 80 of the BPT Act have, however, been relied upon in support of the contention that this Court has no jurisdiction to entertain the Originating Summons. The judgment, in fact, supports the maintainability of the Originating Summons on the point that I have just discussed. It is necessary to note the nature of the suit in that case. The plaintiffs there sought a declaration that the Church of North India (CNI) impleaded as defendant No.5, was the legal continuation and successor of the first District Church of the Brethren together with all rights in respect of its properties and that the decisions and resolutions of the CNI were binding on all the pastorates in Gujarat functioning as local churches under the first District Church of the Brethren and a perpetual injunction restraining defendant Nos.1 to 4 from acting contrary to the constitution, decisions and resolutions of the CNI and from obstructing the plaintiff and other members of the CNI in acting in accordance with the said constitution, decisions and resolutions and enjoyment and possessions of the churches and their properties. The plaintiff also sought an order restraining defendant Nos. 1 to 4 from acting in the name of the first District Church of the Brethren and from collecting funds, donations etc., in that name. Thus, the entire ambit and nature of the suit were entirely different from this Originating Summons. The question is whether the Supreme Court has held that a civil court has no jurisdiction to consider a question that may arise for the consideration of the Assistant Charity Commissioner under section 22. It is important to note paragraphs 31 and 71 of the judgment which read as under :- “31. Sub-section (2) of Section 22 empowers a Deputy or Assistant Charity Commissioner to hold an inquiry for the purpose of verifying the correctness of the entries in the register kept under Section 17 or ascertaining whether any change has occurred in any of the particulars recorded therein. Sub-section (2) of Section 22 empowers a Deputy or Assistant Charity Commissioner to hold an inquiry for the purpose of verifying the correctness of the entries in the register kept under Section 17 or ascertaining whether any change has occurred in any of the particulars recorded therein. In the event, a change is found to have occurred in any of the entries recorded in the register kept under Section 17, the Deputy or Assistant Charity Commissioner is required to record a finding with the reasons therefor to that effect. Such an order is appealable to the Charity Commissioner. By reason of changes which have been found to have occurred, the entries in the register are required to be amended. Such amendment on the occurrence of change is final and conclusive. Section 22-A empowers the Deputy or Assistant Charity Commissioner to hold further inquiry. Section 30 creates a legal fiction as regards notice on the part of a person acquiring immovable property of the relevant particulars relating to such trust entered in the register in relation to any property belonging to a public trust. Section 31 creates a bar to hear or decide suits in the following terms: “31. (1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any court. (2) The provisions of sub-section (1) shall apply to a claim of set-off or other proceeding to enforce a right on behalf of such public trust.” 71. A change notice having been given, it would now be for the appropriate authority to consider the matter and if a change has occurred, a finding is required to be arrived which must contain the reasons there for. The defendants are disputing that any such change in accordance with law was effected. An order passed by the Deputy or Assistant Charity Commissioner is appealable. Yet again, when an amendment is made in the entry in the register, the same would be final and conclusive. A power even exists for holding a further inquiry.” [emphasis supplied] (C) The Supreme Court held that the entries in the register which are amended on the Charity Commissioner’s finding that a change had occurred, is final and conclusive. Yet again, when an amendment is made in the entry in the register, the same would be final and conclusive. A power even exists for holding a further inquiry.” [emphasis supplied] (C) The Supreme Court held that the entries in the register which are amended on the Charity Commissioner’s finding that a change had occurred, is final and conclusive. The amendment carried out by the Charity Commissioner in the register pursuant to a finding that a change had occurred is final and conclusive. The question of its validity cannot be challenged before a civil court in view of the provisions of section 80. The judgment expressly states that when an amendment is made in a entry in the register, “the same” meaning thereby the amendment that is made, would be final and conclusive. I do not find the Supreme Court as having held that every finding by the Charity Commissioner leading to his decision to record the amendment is final and binding on a civil court in every other proceeding and that by reason thereof, the jurisdiction of the civil court to decide or deal with such questions is also barred. 52. Mr. Chagla placed considerable reliance upon paragraphs 40, 83 and 98 of the judgment which read as under:- “40. In Dhulabhai v. State of M.P. Hidayatullah, C.J. summarised the following principles relating to the exclusion of jurisdiction of civil courts: (SCR pp. 682 B-H-683 A-C): “(1) Where the statute gives a finality to the orders of the special tribunals, the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.” (See also Rajasthan SRTC v. Krishna Kant, Dwarka Prasad Agarwal v. Ramesh Chander Agarwal, Sahebgouda v. Ogeppa, Dhruv Green Field Ltd. v. Hukam Singh and Swamy Atmananda v. Sri Ramakrishna Tapovanam.) 83. With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the reliefs sought for, that the civil court has no jurisdiction, Section 26 perforce will have no application whatsoever. 98. The principle enunciated in each of the decisions laid down relates to the fact situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The civil court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of the trust property, the civil court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the civil court was clearly barred.” 53. The observations, in fact, support the contesting defendants. In Dhulabhai’s case, the Supreme Court in fact held that where the statute gives a finality to the orders of the special tribunals, the civil court’s jurisdiction must be held to be excluded “if there is adequate remedy to do what the civil court would normally do in a suit”. The observations, in fact, support the contesting defendants. In Dhulabhai’s case, the Supreme Court in fact held that where the statute gives a finality to the orders of the special tribunals, the civil court’s jurisdiction must be held to be excluded “if there is adequate remedy to do what the civil court would normally do in a suit”. As I have already held, the Charity Commissioner cannot, under section 22 or under any other provision, entertain an application merely for the interpretation of the clauses of a trust deed. His jurisdiction to interpret the provisions of the trust deed arises only when an application is made for substantive reliefs. In fact, the Originating Summons is not even maintainable under section 34 of the Specific Relief Act not merely because a consequential reliefs are not sought. 54. The jurisdiction of the Charity Commissioner arises when any change occurs to any of the entries recorded in the register kept under section 17. An Originating Summons does not have to await the occurrence of such change. 55. Another significant difference between an Originating Summons and any other proceedings in a civil court such as a regular suit or proceedings under section 22 of the BPT Act is that whereas the court may or may not decide an Originating Summons, the civil court is bound to decide every proceeding. Rule 246 reads as under : 246. Court not bound to determine question of construction.- The Court or Judge in chambers shall not be bound to determine any such question of construction if in its or his opinion it ought not to be determined on Originating Summons.” I will refer to the judgments in support of this proposition while considering the question of exercise of jurisdiction in this case. Though an Originating Summons is a suit on the original side, this is an important distinction between a regular suit and an Originating Summons. This distinction is not based on the difference in the form of a normal suit and the form of an Originating Summons. The distinction is one of substance which answers the issue of maintainability. The court is bound to decide a normal suit. The court does not have the discretion whether or not to entertain and decide a normal suit. The court is, however, not bound to decide the questions raised in an Originating Summons. The distinction is one of substance which answers the issue of maintainability. The court is bound to decide a normal suit. The court does not have the discretion whether or not to entertain and decide a normal suit. The court is, however, not bound to decide the questions raised in an Originating Summons. This is a fundamental distinction between an Originating Summons and other proceedings such as under section 22 of the BPT Act or a normal suit. The Assistant Charity Commissioner is bound to consider and decide the applications made thereunder. He cannot avoid doing so on the basis of the nature of the disputes and issues that arise thereunder. In fact in the present case, I have refrained from entertaining the Originating Summons having come to the conclusion that an Originating Summons is not an appropriate proceeding in the facts and circumstances of the present case. If the questions raised in this Originating Summons fall for consideration in any other proceedings, the court or authority is bound, absent anything else, to consider and decide the same. 56(A). The nature and purpose of an Originating Summons also indicates the fundamental difference between an Originating Summons and other proceedings. A Division Bench of this Court in the case of Mazda Theaters Limited v. Gordhandas, (1954) 56 BLR 1080 held as under :- "The right contemplated by that rule is any right, and the whole object of that rule is to make a procedure available to parties which is both cheap and expeditious for determination of disputes as to construction of a written instrument, which dispute could be settled by the Court interpreting the instrument and determining what the rights of the parties are. One would have thought that r. 241 was precisely intended to cover a case like this where a lessor and a lessee are disputing their mutual rights and the question of those rights can be determined effectively and finally by the Court construing the relevant provision of the lease and deciding what the rights of the parties are. One would have thought that r. 241 was precisely intended to cover a case like this where a lessor and a lessee are disputing their mutual rights and the question of those rights can be determined effectively and finally by the Court construing the relevant provision of the lease and deciding what the rights of the parties are. It is perhaps not necessary to point out that our rule is based on the English r.1 of O.LIVA, and the view consistently taken by the English Courts that the word "instrument" used in the rule was meant to receive a wide construction and applied to any written document under which any right or liability whether legal or equitable, existed; and there are innumerable cases in the books where a lease has been construed and the rights of the lessor and the lessee determined." These observations were also quoted in paragraph 16 of the Parsi Panchayat’s case. (B) A learned single Judge of this Court after referring to rule 238 held in paragraph 23 of the judgment in the case of Rama Aziz Parpia v. Balkrishna K. Mehta, 1993(1) Bom. C.R. 267 as under :- “23. In my view, the Court, while exercising power in deciding an originating summons, is not determining a lis. It is not adjudicating the rights and liabilities of parties. Particularly, when the parties are the legatees and executors, both of whom, by definition, must be interested in true execution of the terms of the Will, it is not possible to contemplate on originating summons as a process of resolution of conflict of interest or adjudication of rights and liabilities. To put it figuratively, this is a special jurisdiction created to pour oil over troubled waters or to grease the creaking joints. This is the true nature of the jurisdiction, as I perceive it, and, as long as the estate can be administered in a particular manner, neither contrary to the terms of the Will nor to any law applicable, the Court has jurisdiction to give directions to the executors to administer the estate in such manner. This, in my view, is the true purpose of an originating summons.” Apart from being bound, by these observations, I am in respectful agreement with the same. Further these observations are material in answering the question of maintainability raised by the contesting respondents in the present case. 57. This, in my view, is the true purpose of an originating summons.” Apart from being bound, by these observations, I am in respectful agreement with the same. Further these observations are material in answering the question of maintainability raised by the contesting respondents in the present case. 57. The judgment in Rama Aziz Parpia v. B.K. Mehta was cited with approval of a Division Bench of this Court in Mrs. Lyla Darius Jehangir (nee Ghaswala) Vs. Bakhtawar Lentin & ors. (2007)1 Mah LJ 544 . The Division Bench held :- “10. In yet another case of Rama Aziz Parpia and others vs. Balkrishna K. Mehta, the learned single Judge of this Court held that an originating summons is not a process for declaration of the rights of the parties, nor is it a lis, as popularly understood. By this, the court is not adjudicating the rights and liabilities of the parties; particularly, when the parties are the legatees and executors, both of whom, being interested in true execution of the terms of the Will. In the words of the learned single Judge : "An originating summons is a means for getting over unexpected, un-contemplated difficulties which crop up during the administration of the estate by Executors or trustees. Finding the difficulty insuperable, the parties approach the Court for indicating the most just and equitable manner of administering the estate, in the circumstances, consistent with the wishes of the testator or settlor, as the case may be." 11. The nature of the proceedings of the originating summons highlighted by the learned single Judges of this court in the case of Vithaldas Cursondas and Rama Aziz Parpia (supra) appear to us to be sound; we approve the same.” 58. An Originating Summons provides the guidelines to the concerned parties especially the executors of an estate of the trustees of a trust. An Originating Summons is, as the Division Bench in Mazda Theaters Limited’s case held, a cheap and expeditious procedure available to the parties for the determination of the disputes as to the construction of the written instrument, which dispute could be saved by determining the rights of the parties. If the preliminary objection is upheld, the very purpose of an Originating Summons would be defeated. 59. The preliminary issue is, therefore, answered in the negative. If the preliminary objection is upheld, the very purpose of an Originating Summons would be defeated. 59. The preliminary issue is, therefore, answered in the negative. (III) Whether the Originating Summons is not maintainable as the plaintiff had not obtained the permission of the Charity Commissioner under section 51 of the BPA Act to file it? 60. Mr. Chagla submitted that this Originating Summons is not maintainable as the plaintiff had not obtained the sanction of the Charity Commissioner to file the Originating Summons under section 51, which is a condition precedent. He contended that the Originating Summons is barred as the “reliefs” sought fall within sections 50(iii) (b), (o), (p) and (q) and section 51 of the BPT Act. 61. Section 50, so far as it is relevant and section 51 read as under :-“50. Suit by or against or relating to public trusts or trustees or others.- In any case, -................... (iii) where the direction of the Court is deemed necessary for the administration of any public trust, or ................... (b) the removal of any trustee or manager; ................... (o) an order varying, altering, amending or superseding any instrument of trust; (p) declaration or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or (q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust; 51. Consent of Charity Commissioner for institution of suit: (1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may, within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2) If the Charity Commissioner refuses his consent in the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Maharashtra Revenue Tribunal, constituted under the Bombay Revenue Tribunal Act, 1957, in the manner provided by this Act. (3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party. (4). Subject to the decision of the Maharashtra Revenue Tribunal in appeal under section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive.” 62. The scope of this Originating Summons filed under Rule 238 does not fall within the ambit of section 50. The directions and interpretation that the plaintiff seeks do not fall within sub-sections (i) to (iv) of section 50 read with the sub-clauses that follow them. The plaintiffs have not sought the removal of any trustee or a manager. They have not sought an order varying, altering, amending or superceding any instrument of trust. They have not sought a declaration denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof. The question, therefore, of the plaintiffs seeking any relief which would be a condition precedent to or consequential to any of the aforesaid reliefs does not arise. 63. It is not necessary, therefore, for a party to seek the sanction of the Charity Commissioner under section 51 before filing an Originating Summons under Rule 238. 64. It is not, necessary, therefore, to consider Mr. Cama’s submission that section 50 only applies to the Bombay City Civil Court as it refers to a suit in the “Court”. “Court” is defined in section 2(4) to mean in Greater Bombay, the City Civil Court and elsewhere, the District Court. He submitted, therefore, that the permission of the Charity Commissioner is not required while filing a suit in the Bombay High Court. Nor is it necessary, therefore, to consider Mr. Cama’s submission that sections 50 and 51 do not apply to an Originating Summons as it is not a suit. 65. The preliminary issue is answered in the negative. IV. Whether the Originating Summons is barred by limitation? 66. Nor is it necessary, therefore, to consider Mr. Cama’s submission that sections 50 and 51 do not apply to an Originating Summons as it is not a suit. 65. The preliminary issue is answered in the negative. IV. Whether the Originating Summons is barred by limitation? 66. As I mentioned earlier, it was only in reply to the arguments on behalf of the plaintiff that a further preliminary issue was raised on behalf of the contesting defendants to the effect that the Originating Summons is barred by limitation. 67. Mr. Chagla submitted that the plaintiffs had, more than three years prior to the filing of the Originating Summons, disputed the interpretation of the same clauses of which they now seek an interpretation. The contesting defendants acted on the basis of the disputed interpretation more than three years prior to the filing of the Originating Summons. Relying upon the judgment of the Supreme Court in Kerala State Electricity Board v. T.P. Kunhaliumma (1976) 4 SCC 634 (paragraphs 18, 21 and 22). Mr. Chagla submitted that the law of limitation also applies to proceedings filed other than under the Code of Civil Procedure. 68. The plaintiffs agreed that except clause 11(j), they had disputed the interpretation of the said clauses by the contesting defendants more than three years prior to the filing of the Originating Summons. Mr. Chagla relied upon paragraph 11 of the affidavit of evidence dated 8th June, 2007, of plaintiff No.1 in Short Cause Suit No.1997 of 2006, to demonstrate that the plaintiffs had also disputed the interpretation of clause 11(j) of the contesting defendants. By contending that the permanent trustees can be appointed only by permanent trustees under clause 17, the plaintiffs had indeed impliedly contended that the power under clause 11(j) is not available for the appointment of permanent trustees. 69. I proceed, therefore, on the basis that the question of interpretation of the said clauses fell for consideration and was disputed between the parties more than three years before the Originating Summons was filed. 70. The schedule to the Limitation Act, 1963, does not provide for Originating Summons. If a period of limitation is applicable, an Originating Summons would fall within the residuary article. 70. The schedule to the Limitation Act, 1963, does not provide for Originating Summons. If a period of limitation is applicable, an Originating Summons would fall within the residuary article. Articles 113 and 137 of the Limitation Act read as under : THE SCHEDULE PERIODS OF LIMITATION PART X – SUITS FOR WHICH TERE IS NO PRESCRIBED PERIOD PART II – OTHER APLICATIONS 71. I restrict myself to an Originating Summons under Rule 238. In other words, I restrict myself to an Originating Summons where the plaintiff seeks only the interpretation of the clauses of a trust deed. 72. In such an Originating Summons, the question of the right to sue does not arise. There is no lis between the parties. The plaintiff seeks merely an interpretation of the provisions of the trust deed. The plaintiff seeks no consequential reliefs even of a declaration based on the interpretation thereof. The right to apply for the interpretation of a clause is neither crystallized or exhausted for all times upon the assertion of a particular interpretation by the plaintiff at any stage. 73. The right under rule 238 is a continuing right. To hold that the moment a party asserts an interpretation of a provision of a trust deed his right to seek an interpretation thereof under rule 238 gets extinguished upon the expiry of the period of three years, would lead to startling consequences. For instance, a trustee or a beneficiary may oppose a particular act on behalf of a trustee or a beneficiary based on a particular interpretation of the trust deed. He may not file an action in respect thereof if the act complained of is minor or because the parties arrive at an understanding in respect thereof. If Mr. Chagla’s submission is accepted, the first party would be barred from invoking the jurisdiction of this Court under rule 238 for all times after the expiry of a period of three years, irrespective of the fact that the interpretation is necessary in view of the future conduct of the others. Each act of the concerned person, be he a trustee or a beneficiary, gives rise to a different cause of action. If Mr. Each act of the concerned person, be he a trustee or a beneficiary, gives rise to a different cause of action. If Mr. Chagla’s contention is accepted, it would mean that the aggrieved party is barred forever from challenging all acts merely because one question viz., the interpretation of a provision of the trust deed had not been pursued earlier. The challenge to each act would require an interpretation of the trust deed. 74. This preliminary issue is also answered in favour of the plaintiffs. The Originating Summons is not barred by limitation. MERITS 75. This brings me to the merits of the matter. As I noted earlier, the plaintiff merely seeks the interpretation of certain clauses of the trust deed. She does not seek a declaration as to the validity of the provisions of the trust deed. Nor does she seek any orders based upon the interpretation that may be placed by the Court upon the provisions of the trust deed. 76. As I noted earlier, the plaintiff merely seeks the interpretation of certain clauses of the trust deed. She does not seek a declaration as to the validity of the provisions of the trust deed. Nor does she seek any orders based upon the interpretation that may be placed by the Court upon the provisions of the trust deed. 76. The plaintiff seeks a determination by this Court of various questions relating to the interpretation of clauses 11 (h) (k) and (v), 14, 15(i), 16, 17 and 20 of the trust deed, which read as under :- “Clause 11: For the accomplishment of the Trusts 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:- (f) Subject to provisions of The Bombay Public Trusts Act 1950 and other applicable provisions of law to hire or take on lease or to purchase or otherwise acquire any immovable or movable property for all or any of the purposes of the said trusts at such rents or hire on consideration and on such terms and conditions and for such period and with or without option for renewal or purchase as the Trustees may think fit; (h) To delegate by Power of Attorney 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; (k) To appoint any proxy or proxies to attend and vote at any meeting; (v) To decide all questions arising in the administration of the trusts including all questions relating to the interpretation of these presents or otherwise concerning or touching these presents or to any clause or thing therein contained or touching or concerning anything or matter relating to or connected with or arising out of these presents or the operation thereof, the decision of the Trustees on all or any of the matters aforesaid shall be final. Clause 14: If the Trustees hereby constituted or any of them or the Trustees or Trustee appointed as hereinafter provided shall die or desire to be discharged or refuse or become incapable to act or is adjudicated insolvent or convicted of a criminal offence involving moral turpitude and punished with imprisonment exceeding six months or be absent from India for a period of twelve months or more without leave of the other Trustees in writing or absconding for a period of three months or more without intimating his whereabouts then the surviving or continuing Trustees or Trustee may subject to the provisions of Clause 20 appoint for the time being any person or persons in the place of the Trustees or Trustee so dying, desiring to be discharged or refusing or becoming incapable to act or adjudicated insolvent or convicted of a criminal offence and punished with imprisonment as aforesaid or being absent from India as aforesaid or absconding as aforesaid. Clause 15(i): Except where the Trustee is an Investment to Trustee Company or Corporation the number of Trustees shall at no time be less than three or more than eleven. Clause 16: The Trustees viz.: 1. Mr.Kishor Kirtilal Mehta 2. Smt.Charu Kishor Mehta and 3. Smt.Rekha Haresh - - - Sheth shall be permanent Trustees that is for the life time. Clause 17: The permanent Trustees shall have power to appoint new or additional Trustee or Trustees who may be appointed as permanent Trustee or Trustees or Trustee or Trustees for a period of five years. The Trustee or Trustees appointed for a period of five years shall cease to be Trustee or Trustees on the expiry of the said period of five years and the permanent Trustees shall have power from time to time to appoint Trustee or Trustees for a period of five years in place of such Trustee or Trustees ceasing to hold office as such Trustee or Trustees from time to time, provided that the Trustees so appointed for a specified period or term shall not exceed more than 3. Clause 20: Notwithstanding what is provided in Clause 17, so long as Shri Kirtilal Manilal Mehta is living he shall have power to appoint from time to time and reappoint and continue the appointment of not more than five Trustees as Trustees of these presents who will act as Trustee of these presents for a period of five years and that after his death Shri Vijay Kirtilal Mehta so long as he is living will have the same power to appoint not less than five Trustees of these presents. The appointment of majority of the Trustees shall be as far as possible out of family members of Kirtilal Manilal Mehta or out of branch or branches of such family members of Kirtilal Manilal Mehta.” 77. Under clause 16, defendant No.2, the plaintiff and defendant No.3 were the first trustees of the trust and were appointed as permanent trustees for their lifetime. The Assistant Charity Commissioner, by an order dated 8th August, 1978, directed the first defendant trust to be registered. The order observes that the mode of succession to trusteeship of the said trust is under clauses 17 and 20 of the trust deed. This order has attained finality. 78. One Kirtilal Manilal Mehta was appointed as a permanent trustee in the year 1986 in exercise of powers under clause 17. He expired on 20th July, 1993. His eldest son – Vijay Kirtilal Mehta who is also referred to in clause 20 was appointed as a term trustee for a period of five years from 23rd July, 1993. He died on 24th July, 2010. 79. Paragraph 61 of the Originating Summons reads as under : “61. In light of the aforesaid facts and circumstances, the Plaintiff submits that amongst the questions as listed hereinabove, this Hon’ble Court be pleased to determine the following questions: a) Whether the expression “not less than five trustees” as appearing in Clause 20 of the Trust Deed dated 05.07.1978 of the Lilavati Kirtilal Mehta Medical Trust means or implies the power to appoint upto a maximum of five trustees, who will act as trustees for a period of 5 years? b) Whether the Permanent Trustees named under Clause 16 of the Trust Deed are Permanent Trustees for lifetime and are not susceptible to any disqualification to which the trustees appointed otherwise are, except such disqualification which may render them inherently incapable of executing the trust? b) Whether the Permanent Trustees named under Clause 16 of the Trust Deed are Permanent Trustees for lifetime and are not susceptible to any disqualification to which the trustees appointed otherwise are, except such disqualification which may render them inherently incapable of executing the trust? c) Whether an appointment for the time being of a person in place of a Trustee suffering from any disqualification under Clause 14 of the Trust Deed dated 05.07.1978, is an appointment only for such time that the disqualification continues, subject, however to the unexpired term of the disqualified Trustee? d) Whether the power under Clause 11 (j) for appointment of additional /new Trustees can be resorted to till such time as such an appointment is capable of being done under Clause 17 or Clause 20 of the Trust Deed? e) Whether Clause 11(j) of the Trust Deed permits the appointment of Permanent Trustee/s, which is a specific power as provided under Clause 17 of the said Deed of Trust? f) Whether the powers and authorities of the Trustees listed in sub-clauses (a) to (zi) under Clause 11 of the Deed of Trust are expressly conferred on the “trustees”, i.e., the collective body of the Board of Trustees of the Trust or on individual Trustees? g) Whether the appointment of an power of attorney holder under clause 11 (h) or a proxy under clause 11 (k) of the Trust Deed can be done only by the collective body of the Board of Trustees or whether the same can be done by an individual trustee? h) Whether an power of attorney holder appointed under Clause 11 (h) or a proxy appointed under Clause 11 (k) of the Trust Deed can be delegated discretionary duties or powers of a trustee including, but not restricted to, the power to attend / discuss / participate / vote / pass a resolution / constitute a quorum in a meeting of the Board of Trustees of the said trust, or whether such power of attorney holder or proxy can be delegated purely ministerial acts only? Items (i) and (j) pertain to interim reliefs and are, therefore, not relevant at this stage. 80. The plaintiff only seeks the interpretation by this Court of the provisions of the trust deed. Items (i) and (j) pertain to interim reliefs and are, therefore, not relevant at this stage. 80. The plaintiff only seeks the interpretation by this Court of the provisions of the trust deed. Indeed, paragraph 51 of the Originating Summons states that the plaintiff desires the interpretation of the provisions of the trust deed with regard to various aspects mentioned therein. It is also important to note at this stage that in paragraph 51 of the Originating Summons, it is expressly stated that “there is a lot of ambiguity and non-clarity with respect to certain provisions of the trust deed with regard to” the aspects mentioned therein. 81. It is not necessary for the purpose of this Originating Summons to deal with the allegations regarding the improper exercise of powers by the trustees/erstwhile trustees as no reliefs on the basis thereof have been sought. 82. Mr. Cama made stated that the plaintiff did not want to lead any evidence. The learned counsel appearing for the defendants supporting the plaintiffs also stated that they did not wish to lead any evidence. Mr. Chagla and the other learned counsel appearing on behalf of the contesting defendants stated that as the plaintiff did not wish to lead any evidence, they do not desire to lead any evidence either. 83. I have come to the conclusion that this is not an appropriate matter to be decided on an Originating Summons. There are several reasons for this. Even assuming that these reasons, taken independently, do not justify the Court refusing to entertain the Originating Summons, taken together, they do. 84. The circumstances in which an Originating Summons may be entertained are well settled. As I held earlier, the Court is not bound to entertain an Originating Summons. This is clear from Rule 246 set out earlier. It is sufficient to refer to the following observation from the judgment of the Division Bench in Mrs. Lyla Darius Jehangir (nee Ghaswala) Vs. Bakhtawar Lentin & ors. (2007)1 Mah LJ 544:- “9. At this stage, we may also refer to the provisions of the Bombay High Court (Original Side) Rules, 1980 relating to the Originating Summons. Rule 238 provides for an application for the issue of originating summons in respect of the matters contained therein, interalia, the question affecting the rights or interest of the persons claiming to be devisee, legatee or beneficiary under an instrument. Rule 238 provides for an application for the issue of originating summons in respect of the matters contained therein, interalia, the question affecting the rights or interest of the persons claiming to be devisee, legatee or beneficiary under an instrument. The whole object of this procedure for issuance of the originating summons is to make a procedure available to the parties which is inexpensive but at the same time in substance for determination of the disputes as to construction of the written instrument. In the proceeding by way of Originating Summons, the dispute is settled by the court, interpreting the instrument and determining what the rights of the parties are. Pratt, J. in Vithaldas Cursondas vs. Dulsukhbhai Vadilal Vol. XXI The Bombay Law Reporter 972, while dealing with the similar proposition under Rule 223 of the High Court Rules, held that an originating summons is not a proper procedure to be adopted where the disputed facts are of such complexity as to involve considerable amount of oral evidence. This is an action which should be confined to matters being capable of decision in a summary way; not that it forbids the questions of fact being determined on an originating summons in all class of cases.” To the same effect are the observations of the Division Bench of this Court in the Parsi Panchayat case which I have quoted earlier. 85. I must preface a consideration of this aspect by mentioning that it appeared to me to be quite clear that even the plaintiffs are of the view that there is considerable ambiguity in respect of the said clauses of the trust deed. 86. In paragraph 51 of the plaint, it is averred that there is a lot of ambiguity and non clarity with respect to certain provisions/clauses of the said trust deed and that the plaintiffs, therefore, desire the interpretation of the provisions thereof. 87. Although the plaintiffs have chosen not to lead any evidence and have invited the Court to decide the Originating Summons on a demurer, I am not inclined to do so. It is indeed normally the plaintiff’s choice whether or not to lead evidence. That, however, is in cases where the plaintiff is personally interested and stands to benefit personally by the decision of the Court. This is not the case here. The plaintiffs and most of the defendants are trustees. It is indeed normally the plaintiff’s choice whether or not to lead evidence. That, however, is in cases where the plaintiff is personally interested and stands to benefit personally by the decision of the Court. This is not the case here. The plaintiffs and most of the defendants are trustees. They are interested in the effective and proper administration of the trust, but are not beneficiaries of the trust. The consequences of a finding on a demurer in a summary proceeding would not affect the trustees personally, but would affect the beneficiaries of and the proper administration of the trust. Even if the parties had chosen to lead evidence it would make no difference for, in my opinion, this is not a fit matter for the Court to permit oral evidence in an Originating Summons. There are several reasons for this which I will refer to. 88. Mr. Chagla relied upon the observations of a Division Bench of this Court in an order and judgment dated 21st March, 2009 in AO No.22 of 2009 in Notice of Motion No. of 2009 in SC Suit (Stamp) No.1511 of 2009 along with Civil Application No. 22 of 2009. The plaintiffs sought declarations, inter-alia, upon what they submitted was the correct interpretation of the clauses. The Division Bench in paragraph 24 held : “The suit is for declaration and interpretation of clauses 17 and 20 of the Trust Deed dated 5th July, 1978 and interim relief/injunction. The prayers of interim relief/injunction are based upon the same. These clauses need to be interpreted first before granting any declaration of injunction in favour of the Appellant. It is a case of interpretation of clauses of the documents. The whole documents need to be considered along with surrounding circumstances to understand and to give clear meaning to those clauses including the intention and object of the documents. We need to be considered the intent and object of the clauses independently and jointly also. The document is of the year 1978. Therefore, rival pleadings with other document and evidence with regard to the same is necessary to be gone into in detail. In these circumstances, in our view, the grant of only interim relief by interpreting these clauses at such interlocutory stage without due trial will affect the rights of both the parties.” 89(A). The document is of the year 1978. Therefore, rival pleadings with other document and evidence with regard to the same is necessary to be gone into in detail. In these circumstances, in our view, the grant of only interim relief by interpreting these clauses at such interlocutory stage without due trial will affect the rights of both the parties.” 89(A). Even assuming that I am not bound by these observations, I cannot ignore them. The Division Bench has expressly held that the interpretation of the clauses would require a consideration of the entire trust deed “along with surrounding circumstances” and that to arrive at a clear interpretation of these clauses, the intention and object of the documents must also be considered. It was also held that evidence is necessary with regard to the same, meaning thereby, the interpretation of the document based inter-alia on the surrounding circumstances and the object of the document. Even assuming that the doctrine of precedent does not apply qua this order, I am certainly not inclined to ignore it. To do so would, in effect, suggest that the Division Bench was entirely wrong in its assessment of the matter. (B) The fact that the suit was ultimately dismissed by an order and judgment dated 16th November,2009, in an application under section 9-A of the Civil Procedure Code, would not affect these observations in any manner whatsoever. These observations were not in respect of the merits of the dispute. They pertain to the requirement of evidence in interpreting the clauses of the trust deed. The Division Bench itself did not interpret the clauses, but merely came to the conclusion that the interpretation thereof would require consideration based on evidence, inter-alia, of all the surrounding circumstances. The fact that the suit was dismissed for want of jurisdiction, therefore, does not affect these observations in any manner. 90. I am, in any event, in respectful agreement. I find, even independent of these observations, that the clauses are riddled with complexities which can be resolved only upon an in depth analysis of the same, after considering all available evidence, documentary as well as oral. 91. Further, as I will demonstrate while dealing with the clauses of the trust deed, to put the case of the contesting defendants at its lowest, the clauses are capable of more than one interpretation. 91. Further, as I will demonstrate while dealing with the clauses of the trust deed, to put the case of the contesting defendants at its lowest, the clauses are capable of more than one interpretation. If that be so, clause 11(v) of the trust deed provides for the resolution of any difficulty that may arise on account of the interpretation of the trust deed. As I have held earlier, clause 11(v) does not oust the jurisdiction of the Court to interpret the provisions of the trust deed. It is, however, relevant in the exercise of discretion by a court especially in an Originating Summons. 92. Though clause 11(v) does not bar the jurisdiction of the Court to entertain the Originating Summons, it is one of the factors for my refusing in the facts and circumstances of this case, to exercise my discretion by entertaining the Originating Summons. The Court would give due regard to the interpretation placed on the provisions of a trust deed if it is a genuine bona-fide exercise of power by the trustees. The Court would hesitate to interfere with the trustees interpretation of the terms of the trust deed. If, however, the interpretation is perverse or malafide, or even otherwise motivated, the Court will not find itself bound by the same. Further, if a clause requires no interpretation, but merely requires to be applied, the Court will interfere if under the guise of interpretation, the trustees change the very object of the trust or manner in which they are bound to act thereunder. 93. I am conscious of the fact that there is considerable animosity among the trustees which has led to a spate of litigations which undoubtedly would affect the smooth functioning of the trust. That, however, would not justify or warrant a court virtually negating the effect and operation of clause 11(v). Whether the interpretation placed by the trustees is bona fide or not must be decided in each case. A decision in this regard itself may well require evidence. A presumption in these proceedings that every interpretation has been and will, in future, be dishonest and malafide is not warranted 94. The determination of whether the exercise of such power is genuine and bona fide or not would itself require consideration in appropriate proceedings. A decision in this regard itself may well require evidence. A presumption in these proceedings that every interpretation has been and will, in future, be dishonest and malafide is not warranted 94. The determination of whether the exercise of such power is genuine and bona fide or not would itself require consideration in appropriate proceedings. If, for instance, it is held in any proceedings that the majority of the trustees have not exercised their powers bonafide it may well be a ground for entertaining an Originating Summons. 95. This brings me to Mr. Cama's interpretation of the said clauses. I believe what follows also supports the reasons I have just furnished for refusing to entertain the Originating Summons. 96. Mr. Cama submitted that clause 11(j) is only a residuary power for the appointment of trustees. He submitted in the alternative that clause 11(j) is subject to and circumscribed by clauses 14 and 17. In other words, according to him, clause 11(j) is only a general reference to the power of the trustees to appoint trustees and does not by itself actually confer such power upon the trustees. The power is conferred by clauses 14 and 17. The actual exercise of powers, therefore, can be only under clauses 14 and 17 and not under clause 11. 97. The plain language of the opening part of clause 11 does not support either of these submissions. The opening of clause 11 stipulates that the powers are “expressly conferred” therein and that the same are “without prejudice to the generality of any powers hereby.... conferred or implied or vested in the trustees”. Clause 11(j) is one such express power conferred upon the trustees. Moreover, the power is conferred upon the trustees in general and not to any particular type of trustees viz. a term trustee or a permanent trustee. 98. The plain language of clause 11, therefore, at least appears to confer upon the trustees, the power to fill any vacancies or to appoint any additional trustee or trustees. 99. It was, however, contended that this construction would be contrary to the provisions of clause 17 for it would render ineffective the power of the permanent trustees under clause 17. 100. That, however, is one way of looking at it. The other way of looking at it is that if the plaintiff’s construction is accepted, it would render clause 11(j) nugatory. 100. That, however, is one way of looking at it. The other way of looking at it is that if the plaintiff’s construction is accepted, it would render clause 11(j) nugatory. If the intention was to circumscribe the powers under 11(j) as contended by the plaintiff normally the trust deed would have provided for the same. It is not inconceivable that the Settlor intended appointments to be made in more than one manner. 101. I do not for a moment suggest that the plaintiff’s submissions are without any force. I, however, find that in view of the language of the said clause, a construction contrary to the plain meaning would require to be established in a trial and not in a summary proceeding. 102. Mr. Cama then submitted that if the Court finds that there is a conflict between the two clauses, a finding to that effect must also be given for the parties would then know where they stand and adopt suitable proceedings to meet the situation. 103. This submission is based on the premise that merely because the working of a trust deed may result in conflicting decisions, it necessarily implies that the provisions thereof are in conflict with each other. As I have already noted, even a decision as to whether the provisions are in conflict with each other would be required to be tested in a trial and not in a summary proceeding. I appreciate that the working of a trust may well be hampered if the powers under clause 11(j) and clause 17 are exercised concurrently. There is a possibility that the permanent trustees who may be in a minority may appoint a trustee and, at the same time, the other trustees who are in a majority, may appoint another person in the same place. That by itself, however, does not necessarily decide the question of priority between the clauses. In other words, the mere possibility of conflicting decisions pursuant to the exercise of concurrent powers by itself is of no assistance in the present case in interpreting the provisions of the trust deed. Nor does it necessarily mean that one clause is redundant. The parties are not without a remedy in such a situation. They have the remedy of approaching the Charity Commissioner for appropriate directions in such a situation. 104. Nor does it necessarily mean that one clause is redundant. The parties are not without a remedy in such a situation. They have the remedy of approaching the Charity Commissioner for appropriate directions in such a situation. 104. The question whether the Settlor could never have intended by clause 11(j) to negate the effect of clauses 14 and 17 must await a decision in appropriate proceedings. It could equally be contended that it could never have been the intention of the Settlor to negate the effect of clause 11(j), especially in view of the preface to the sub clauses of clause 11. 105. Mr. Cama submitted that clauses 11(j), 14 and 17 can be read harmoniously only by accepting his submissions. In that event, under clause 17, only the permanent trustees would have the power to make appointments and all the trustees would have the power to make appointments under clause 14. On the other hand, if the interpretation is accepted, there is bound to be a conflict in the administration of the trust. 106. As I have noted earlier, I do not for a moment suggest that the submission is without substance. The construction in this regard, however, must await a decision in an appropriate proceeding after evidence. 107. It was further submitted that an appointment made under clause 14 can only continue till the disabilities referred to therein continue. The submission was based on the words “for the time being” in clause 14. 108. I find it difficult, however, to accept the interpretation, especially in a summary proceeding. A view to the contrary is not improbable. Clause 14 refers to seven disabilities. The phrase “for the time being” is not consistent with each of these contingencies. It certainly is not consistent with a trustee who dies. It was, therefore, contended that the phrase must be read only in respect of those contingencies with which it is consistent. 109. I cannot agree that the phrase “for the time being” is not consistent with any other interpretation of clause 14. The clause can be interpreted to avoid any inconsistency between the phrase and the contingencies. It may well apply to the person who is appointed under clause 14 and not to the trustee who suffers the disqualifiation. 109. I cannot agree that the phrase “for the time being” is not consistent with any other interpretation of clause 14. The clause can be interpreted to avoid any inconsistency between the phrase and the contingencies. It may well apply to the person who is appointed under clause 14 and not to the trustee who suffers the disqualifiation. For instance, if the appointment is in respect of a term trustee, the appointment under clause 14 may well be held to continue only for the unexpired term of the trustee whose vacancy is sought to be filled. Thus, for instance, if a term trustee incurs a disqualification on account of the contingencies mentioned in clause 14, after the expiry of three years, the person appointed in his place as a term trustee, would continue only for the unexpired period of two years. I hasten to add that I do not suggest this to be the correct interpretation. I have furnished this illustration only to indicate that the construction of clause 14 is not as clear as the plaintiff suggests. 110. Ms. Iyer, supporting the plaintiff submitted that any interpretation other than the one suggested by the plaintiff would lead to absurdity. She attempted to illustrate this in a case where a trustee is convicted of a criminal offence involving moral turpitude and a punishment with imprisonment exceeding six months, but such trustee is acquitted in appeal. She submitted that it could never have been the intention of the Settlor that even if the trustee is acquitted in appeal the disability would continue. 111. The illustration is only indicative, at the highest, of an unfortunate situation. It does not support the interpretation of clause 14. The Settlor may well have intended the administration of the trust to continue unhindered by or on account of any personal difficulties of a particular trustee. The Settlor may well have intended that the appointment of the trustees cannot await or be dependent upon multiple decisions. Otherwise, it could well mean that if in a further appeal, the conviction is upheld, the trustee must once again suffer a disqualification. This would lead to uncertainty in the constitution of the Board of trustees and hamper the functioning of the trust. The proper administration of a trust is more important that the right of a person to hold the office a trustee when he is not even a beneficiary. This would lead to uncertainty in the constitution of the Board of trustees and hamper the functioning of the trust. The proper administration of a trust is more important that the right of a person to hold the office a trustee when he is not even a beneficiary. 112. The question of interpretation cannot be decided, at least, in the present case, merely on the basis of illustrations. Illustrations can be furnished in support of a contrary interpretation of the clause as well. For instance, one of the contingencies in clause 14 is where a trustee desires to be discharged or refuses to act as a trustee. It can hardly be suggested that his disqualification would cease to operate at his sweet will for otherwise it would mean that the trustee could, at a given stage, desire to be discharged or refuse to act and subsequently withdraw his desire to be discharged or refusal to act. This could go on ad-infinitum. It can hardly be suggested that the Settlor intended the trustees to have such latitude. 113. Faced with this, Mr. Cama submitted that the words “for the time being” must be read only with the sixth contingency viz. “A trustee absenting himself from India for a period of two months or more, without the leave of the other trustees in writing.” He stated that this is the only contingency/situation that arises presently. 114. That is impermissible. The clause must be read as a whole. A clause cannot be interpreted by effectually rewriting it by deleting parts thereof based on what may have transpired from time to time. Such events by themselves are irrelevant to the process of interpretation which must be based on a reading of the clause as a whole as it stands. Moreover, it is equally possible to contend that the Settlor intended that a person cannot absent himself for more than twelve months from India without leave of the other trustees in writing and return to India as and when he wants after any duration of absence and claim to be a trustee again. Such an interpretation, in fact, would harm the working/administration of the trust. 115. It is important to note Mr. Such an interpretation, in fact, would harm the working/administration of the trust. 115. It is important to note Mr. Cama’s alternative submission that the words “for the time being” indicate that the appointment there under is only till the regular appointment is made under clause 17 for otherwise it would render the power under clause 17 nugatory. Thus, the plaintiff herself is in a quandary whether the words “for the time being” apply qua the trustee suffering the disqualification under clause 14 or the trustee appointed in his place in exercise of powers under clause 14. I have already dealt with clause 14 qua clause 11(j). 116. Ms. Iyer submitted that the words “for the time being” in clause 16 indicated that a permanent trustee who is appointed for his lifetime can never suffer a disqualification under clause 14 for the appointment is for his life-time. She submitted that this Court ought to hold that there are three kinds of trustees viz. term trustees, permanent trustees and permanent trustees appointed for their lifetime and that permanent trustees appointed for their life-time cannot be removed under clause 14. 117. Prima facie, at least, there is no distinction between permanent trustees under clause 16 and other permanent trustees. The last line in clause 16, by the use of the words “that is”, seems to indicate what a permanent trustee is and does not differentiate between a permanent trustee under clause 16 and other permanent trustees. Moreover, clause 14 does not draw a distinction between trustees who suffer a disqualification on account of what it stated therein. The opening words “If the trustees....are not qualified” apply to all trustees. There is nothing in clause 14 that indicates that they apply to certain trustees and not to others. Further, considering the nature of the grounds for disqualification there is every possibility that the settlor intended them to apply to all the trustees. 118. A trustee who suffers a disqualification under clause 14 is not removed by the other trustees. The trustee suffers a disqualification by virtue of the operation of clause 14. Such a trustee, in effect, ceases to hold office as a trustee. Thereupon, his position is filled up by another in exercise of powers under the trust deed. 119. 118. A trustee who suffers a disqualification under clause 14 is not removed by the other trustees. The trustee suffers a disqualification by virtue of the operation of clause 14. Such a trustee, in effect, ceases to hold office as a trustee. Thereupon, his position is filled up by another in exercise of powers under the trust deed. 119. What I have said about clauses 11(j) and 17 viz., that the interpretation would require evidence, would equally apply in respect of clause 14. 120. Mr. Cama submitted that the words “not less than five trustees” in clause 20 must be read as “not more than five”. The submission was based on a combined reading of clauses 15, 16 and 17. 121. The plaintiff invites the Court to rewrite clause 20 by substituting the words “not less than five” with the words “not more than five”. This, in effect, was the view of the plaintiff and the defendants supporting the plaintiff. This is clear from what is stated in paragraphs 16 and 20 of the plaint. In Suit No.1795 of 2008, the plaintiff expressly contended that there is an error/mistake in the phraseology “not less than five trustees” appearing in clause 20 of the trust deed. This would have required the plaintiff to adopt proceedings for rectification of the trust deed. Probably realising the difficulty in doing so, the averment in the present Originating Summons is this : “However, the Plaintiff has thereafter sought the opinion of an eminent Jurist who has opined that the expression “not less than five trustees” in Clause 20 of the Trust Deed is not an error but a way of expressing that the powers to appoint Trustees would be upto a maximum of five Trustees, so as to give true effect to and rely in its entirety.” 122. The plaintiff has rightly not annexed the opinion. The plaintiff has, however, not offered any explanation as to how the words “not less than five trustees” was the Settlor’s way of expressing that the power is restricted upto a maximum of five trustees. The plaintiff was, de-hors the opinion, entitled to analyze the clause to this effect. She did not even attempt to do so. 123. What was contended, however, is that the submission is supported firstly by the provision in clause 20 that the Settlor’s son Vijay K. Mehta will have “the same power to appoint”. The plaintiff was, de-hors the opinion, entitled to analyze the clause to this effect. She did not even attempt to do so. 123. What was contended, however, is that the submission is supported firstly by the provision in clause 20 that the Settlor’s son Vijay K. Mehta will have “the same power to appoint”. It was submitted that the words “the same power to appoint” establish that the power was limited to the Settlor’s power, which was to appoint not more than five trustees. 124. The reliance upon the words “the same power to appoint” would, at the highest, support the contention that the words “not less than five years” is an error. They do not support the interpretation placed by the plaintiffs upon the words “not less than five years”. The words “the same power to appoint” are not rendered otious by retaining the words “not less than five”. The words “the same power to appoint” are also consistent with the interpretation that the power of the Settlor’s son to appoint is not limited to a one-time appointment, but is a continuing power which can be exercised from time to time. 125. It is also contended that if the plaintiff’s interpretation is not accepted, it would render the power under clause 17 nugatory. 126. Even assuming that the exercise of powers under clause 20 affects the power of the permanent trustees under clause 17, that by itself would not support the plaintiff’s interpretation of the clause. The Settlor may well have intended his son to have overriding powers. Mr. Madon rightly relied upon the opening words of clause 20 “Notwithstanding what is provided in clause 17....”. The opening words would be consistent with the power in the Settlor’s son to appoint either not less than five trustees or even not more than five trustees. 127. Mr. Cama submitted that it is inconceivable that the Settlor would grant his son greater powers than he reserved unto himself. 128. The submission is obviously unsustainable. I see no reason to presume that the Settlor could never have intended his son to have wider powers. It is not uncommon that parents confer greater powers and benefits upon their children than they have enjoyed themselves. In any event, it is difficult in a summary proceeding to decide such questions relating to the intention of a Settlor. I see no reason to presume that the Settlor could never have intended his son to have wider powers. It is not uncommon that parents confer greater powers and benefits upon their children than they have enjoyed themselves. In any event, it is difficult in a summary proceeding to decide such questions relating to the intention of a Settlor. I am not inclined to speculate on this issue. 129. Mr. Cama submitted that if the plaintiff’s interpretation of clauses 15, 16, 17 and 20 is not accepted, it would render the entire scheme under clauses 16, 17 and 20 unworkable. The argument is this. Clause 15 provides for a maximum of 11 trustees. Three permanent trustees are appointed under/named in clause 16. Under clause 17, the permanent trustees are entitled to appoint three term trustees. Thus, clauses 16 and 17 together provide for the appointment of six trustees. It follows, therefore, according to the plaintiff, that under clause 20 the Settlor’s son was entitled to appoint not more than five trustees. 130. Absent any evidence to support this interpretation, to accept it would be pure speculation. It could equally be argued that the vacancies may not be filled up. It is possible that the vacancies may not be filled up. Clauses 14 and 17 do not compel the trustees to fill up vacancies. Under clause 15, there can be a minimum of three trustees. It is not inconceivable, therefore, that at a given point of time, there may be three trustees resulting in a vacancy of eight trustees. Clause 20 is, therefore, not unworkable. 131. Mr. Cama submitted that if the Settlor’s intention was to entitle his son to appoint more than five trustees, it would not have been necessary to use the words “not less than five”. He submitted, therefore, that the Court ought to read the words “not less than five” as “not more than five”. 132. Firstly, that may call for a rectification of the trust deed. I cannot see how that entitles the Court to interpret a deed contrary to its express terms. Secondly, if it entitled the Settlor’s son to appoint even all the trustees, so be it. That was the Settlor’s prerogative. He, therefore, prefaced the clause with the words “Notwithstanding what is provided in clause 17”. I cannot see how that entitles the Court to interpret a deed contrary to its express terms. Secondly, if it entitled the Settlor’s son to appoint even all the trustees, so be it. That was the Settlor’s prerogative. He, therefore, prefaced the clause with the words “Notwithstanding what is provided in clause 17”. Thirdly, even assuming that a conflict would arise in the event of exercise of powers under clause 20 by the Settlor’s son and by the other trustees under clause 17, that would not be of any assistance in interpreting the trust deed contrary to its plain language. Parties would then have to adopt proceedings to resolve the issue. I do not wish to speculate on the various methods by which the dispute could be settled. 133. The suggestion that an interpretation to the contrary would mean that the Settlor’s son was bound to appoint not less than five trustees is unsustainable. Clause 20 only confers the power upon the Settlor and his son to appoint trustees and did not compel them to do so. This is clear from the use of the words “shall have power to appoint” in respect of the Settlor and the words “will have the same power to appoint” in respect of the Settlor’s son. In other words, they had the power to appoint trustees but were not bound to exercise the power. 134. It is also important to note that the power of appointment under clause 14 is also subject to the provisions of clause 20. Clause 14 expressly provides that the trustees may appoint persons in the place of the trustees in the circumstances enumerated therein “subject to the provisions of clause 20”. 135. There is yet another reason why I refrain from interpreting clause 20. The Settlor and his son the said Vijay Kirtilal Mehta have expired. Several proceedings have been filed to challenge the exercise of the power by Vijay K. Mehta under clause 20. Those proceedings are pending. It would be appropriate that clause 20 is interpreted in such proceedings. An interpretation of the clause even in favour of the plaintiff would not necessarily put an end to the proceedings which have been filed. It is possible that the proceedings may be decided against the plaintiff on other grounds as well such as delay, limitation or even for default. 136. An interpretation of the clause even in favour of the plaintiff would not necessarily put an end to the proceedings which have been filed. It is possible that the proceedings may be decided against the plaintiff on other grounds as well such as delay, limitation or even for default. 136. The validity of clauses 11(h) and (k) was not questioned. Only the interpretation thereof was sought. It is not necessary, therefore, to consider the validity of the clause 11(h) and 11(k). I do not think it was even suggested by the contesting defendants that any individual trustee can exercise the powers under any of the provisions of the trust deed per se and without the authority of the other trustees. I have proceeded on the basis that clause 11 does not confer any power upon an individual trustee regarding the administration of the trust without authority. In other words, a particular trustee cannot act on behalf of all the trustees without authorization. It is not necessary, therefore, to consider the judgments on the question as to whether trustees can delegate their powers as trustees with respect to the administration of the trust and whether the provisions of section 47 of the Indian Trusts Act apply to public trusts. In any event, in the facts of this case, it would be appropriate to leave the question even in this regard to be decided in the substantive proceedings which have already been adopted. 137. Clause 11(k) entitles the trustees to appoint any proxy or proxies to attend and vote at any meeting. The clause does not specify the nature of such meeting. It is difficult, therefore, in a Originating Summons to accept the contention that the language of the clause limits it to meetings other than the meetings of the trust/trustees to discharge the function of the trust and that it is restricted only to representing the trust at meetings with third parties. Throughout the trust deed, the term “meeting” is used with respect to the meetings of the trustees. For instance, clause 12(e) uses the expression “the quorum for a meeting of the trustees.....” At the cost of repetition, I am not adjudicating the legality of this clause. Mr. Cama did not contend that a deed cannot permit a trustee to delegate his duties as a trustee. His contention was that clause 11(k) does not permit it. For instance, clause 12(e) uses the expression “the quorum for a meeting of the trustees.....” At the cost of repetition, I am not adjudicating the legality of this clause. Mr. Cama did not contend that a deed cannot permit a trustee to delegate his duties as a trustee. His contention was that clause 11(k) does not permit it. He, in fact, submitted that such a clause would be an exception to the general law which is to the contrary. The reliance upon Rule I(iv) and IV of the Rules framed by the trustees is of no assistance in interpreting clause 11(k). Mr. Cama submitted that the fact that these Rules confer such powers indicates that the power is not to be found in the trust deed. It is not possible to interpret the provisions of a trust deed contrary to its plain language on the basis of the rules framed by the trustees. A rule may well be framed although it provides what the trust deed also stipulates. 138. There is yet another reason to refrain from interpreting clauses 11(h) and 11(k). Application No.17 of 2006 was filed under Section 41D of the BPT Act before the Joint Charity Commissioner which was disposed of by an order and judgment dated 25th September, 2009. The Joint Charity Commissioner specifically dealt with clause 11(h) in paragraphs 249 to 254 of the judgment. It was held that there was no bar under the trust deed to delegate powers to the trustees individually. The plaintiffs challenged this order by filing Writ Petition No.9501 of 2009 which was disposed of by an order and judgment dated 2nd March, 2010. The learned Judge dismissed the Writ Petition holding that the order was not without jurisdiction and did not require any interference. Appeal No.268 of 2010 filed by plaintiff No.1 against this judgment was dismissed by an order and judgment of the Division Bench dated 1st December, 2010. The Division Bench held that the Joint Charity Commissioner had given detailed reasons; that the order cannot be said to have been made without jurisdiction; that the reasons can by no stretch of imagination, be said to be perverse or impossible and that, therefore, the learned single Judge was justified in not interfering with the order. It is important to note that this judgment has been challenged by the plaintiff before the Supreme Court. It is important to note that this judgment has been challenged by the plaintiff before the Supreme Court. One of the questions is as follows : “(iv) Without prejudice to (a), (b) and (c) above, whether a delegation by co-trustees of their powers (as here sought to be made) in favour of one of themselves, is impermissible, null and void ab initio, the same being in breach of the instrument of trust and of the provisions of the Indian Trusts Act.” The question, therefore, fell for consideration in substantive proceedings. The question is pending before the Supreme Court. It would not be proper, therefore, for this Court even otherwise to entertain the Originating Summons on this question. 139. The contesting defendants relied upon the minutes of the meeting dated 6th October, 2004. The plaintiff and defendant No.12 attended the meeting. The Settlor’s son – the said Vijay K. Mehta also attended the meeting on behalf of himself and as the constituted attorney of five other trustees. The plaintiff and those supporting her did not object to Vijay K. Mehta appearing as the constituted attorney of the other trustees. This would be an important circumstance indicating how the parties themselves interpreted the provisions under clauses 11(h) and 11(k). 140. Mr. Cama, however, submitted that these meetings have been challenged. He submitted that the minutes of the meeting were fabricated. All the more reason, therefore, that the issue cannot be decided in summary proceedings in an Originating Summons. Questions of fabrication must be left to be decided in a trial. 141. Mr. Chalga submitted that an Originating Summons is normally filed before a litigation is commenced. He submitted that in the present case, there are innumerable proceedings between the parties and that this Originating Summons has been filed only subsequently. 142. I see no reason why an Originating Summons cannot be filed even if the parties have commenced litigation. Indeed, in many cases it would be desirable to decide issues in an Originating Summons, if they appropriately fall for consideration in an Originating Summons, even if litigation is pending. Ending litigation is as important as presenting it. It would be to the benefit of the administration of a trust. This, however, would depend on the facts of each case. The Court would not, as an absolute rule, bar the filing of an Originating Summons merely because parties have already filed proceedings. 143. Ending litigation is as important as presenting it. It would be to the benefit of the administration of a trust. This, however, would depend on the facts of each case. The Court would not, as an absolute rule, bar the filing of an Originating Summons merely because parties have already filed proceedings. 143. It is also pertinent to note that change reports are pending before the Charity Commissioner and have been directed to be decided expeditiously by the said order and judgment dated 27th February, 2009 in First Appeal No.2667 of 2008 and other related First Appeals. 144. In this view of the matter, it is not necessary to consider Mr. Chagla’s submission that this Originating Summons is barred on the ground of delay or issue estoppel. 145. In the circumstances, the Originating Summons is dismissed. There shall, however, be no order as to costs.