Rule 11 provides that the
officer holding the inquiry may only make a memorandum of the
substance of what each witness deposes. It is unthinkable that
questions of title could be permitted to be decided by a Tribunal
finally and conclusively without any obligation to record the
evidence fully. It is a matter of common experience that subtle
shades of evidence are often missed in a memorandum containing
merely the substance of the evidence. In paragraph 24, it was
observed that such inquiries could not possibly conclude disputed
titles and that it is not part of the functions of the Authorities under
Section 19 to decide claims which are adverse to the Trust and which are
made in assertion of titles which are hostile to the Trust. Such titles
cannot be held concluded in violation of the principles of natural justice.
In paragraph 25, it was observed that neither the Act nor the Rules
contemplate that a person who claims adversely to the Trust or who
disputes the right of title of the author of the Trust to the Trust property
must be heard in the inquiry under Section 19. In paragraph 26, the Full
Bench considered Sections 70, 70-A and 72 and observed that the fact
that the Legislature has expressly provided for these remedies against the
decisions rendered under Section 19 is undoubtedly relevant, because
summary decisions are seldom accorded the privilege of being taken that
high. It opined that this circumstance is not sufficient by itself to
extend scope of the inquiry under Section 19 so as to bring within its
sweep, contested questions as regards the title to the trust property.
In paragraph 40, the Full Bench answered the first question in the
negative
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.150 OF 2012
Shree Hanuman Mandir, Alibag, Public Trust
Vs.
Satishchandra Bhalchandra Gurjar and others … Respondents
CORAM : R. G. KETKAR, J.
Pronounced on: 26TH FEBRUARY, 2013
2. By this Application under Section 115 of the Code of Civil
Procedure, 1908 (for short 'C.P.C.'), the original defendant Nos.1, 1/1,
1/2, 1/3 , 1/5, 1/7, 1/8 and 1/11 have challenged the judgment and order
dated 26.04.2011 passed by the learned Civil Judge Senior Division,
Alibaug below exhibit-40 in Special Civil Suit No.54 of 2011. By that
order, the learned trial Judge rejected the application made by the
applicants under Order 7, Rule 11(d) of the C.P.C. for rejection of the
plaint. The relevant and material facts that are necessary for the
disposal of the present application, briefly stated, are as under:
3. Respondent Nos.1 and 2 instituted Short Cause Suit No.54 of
2011 in the Court of Civil Judge Senior Division, Alibaug and the
applicants were impleaded as defendant Nos.1, 1/1, 1/2, 1/4, 1/5, 1/6,
1/8 and 1/11 (for short 'defendants'). Respondent Nos.7 and 8 were
impleaded as defendant Nos.2 and 3. The property in dispute between
the parties is City Survey No.627 admeasuring 132.1 sq.mtr. and
Municipal House No.94 situate at Alibaug, District - Raigad (for short
'suit property').
4. Respondent Nos.1 and 2 (for short 'plaintiffs') instituted the Suit
contending inter alia that the suit property was originally owned by one
Durgabai Aatmaram alias Vishnuram Prabhaskar and Radhabai
Balkrishna Prabhaskar. Durgabai and Radhabai had purchased the suit
property by registered sale deed dated 26.07.1941 from Hari
Purushottam Prabhaskar. After the death of Radhabai, Durgabai became
the exclusive owner of the suit property. After the death of Durgabai,
her son Shridhar Atmaram Prabhaskar inherited that property. There is
old Shri Hanuman Temple in Municipal House No.984 and that is the
private Devasthan of Prabhaskar family. Accordingly, the name of
Shridhar Atmaram Prabhaskar was recorded in respect of the suit
property.
5. It is the case of the plaintiffs that since 1948, Shridhar was
staying separate from his wife and son. Shridhar executed registered
will on 16.05.1985 bequeathing the suit property and the temple in
favour of his close relation Manjula Bhalchandra Gurjar . Shridhar died
on 11.08.1985. After the death of Shridhar, Manjula exclusively became
the owner of the suit property. Manjula in turn executed will on
21.06.1993 and bequeathed the suit property together with temple and
management of the temple in favour of plaintiff No.2. Plaintiff No.2
became owner of the suit property as also Hanuman Temple and deities.
Said Manujla is the mother of plaintiff No.1 and grandmother of
plaintiff No.2. Manjula died on 24.08.1997. The plaintiffs further
contended in the alternative though they have inherited the suit property
by succession, it was wrongly recorded as a 'public trust property'. The
plaintiffs have made separate application before the Authorities under
the Bombay Public Trusts Act, 1950 (for short 'Act') for cancellation of
the said entry. In the record before the Authorities under the Act, though
the entry is made about management and administration of Hanuman
temple and other deities, the suit property does not belong to the Trust -
Hanuman Mandir, Alibaug and is private property of the plaintiffs as no
instrument is executed transferring the suit property in favour of the
Trust.
6. It is the case of the plaintiffs that the order and the entries made in
the register maintained under the Act are not binding on them. It is the
case of the plaintiffs that after the death of trustees - Anant Bhat and
Tulshidas Sheth, Sunanda Ghumkar was the lone trustee. Before the
appointment of defendant Nos.1/1 to 1/11 as trustees of the Trust, they
started obstructing plaintiff No.1 from carrying out worship and
managing the affairs of the Trust. In view of the dispute between them
and the plaintiff No.1, compromise was arrived at between the parties
and they agreed to appoint plaintiff No.1 as permanent Pujari and trustee
only for the management of the temple. It was further agreed that the
Trust will not claim any ownership rights in the suit property. Plaintiff
No.1, therefore, agreed to become trustee and gave consent.
Accordingly, from 26.07.1996 till 14.07.2009, plaintiff No.1 was acting
as a trustee. Defendant Nos.1/1 to 1/11 made false complaints against
the plaintiffs and the plaintiff No.1 was removed as a trustee from
15.07.2009. Defendant Nos.1/1 to 1/11 alleged that Manjulapredecessor in title of the plaintiffs had sold the suit property when in
fact Manjulaben did not enter into any transaction.
7. It is the further case of the plaintiffs that all the defendants tried
to take forcible possession of the suit property and drive away the
plaintiffs. The plaintiffs, however, did not handover possession. The
plaintiffs apprehend that in future they will be dispossessed forcibly
from the suit property and therefore, the present Suit is instituted. It is
the case of the plaintiffs that defendant No.2 was not given possession
though he tried to take forcible possession. The plaintiffs made
complaints to the police whereupon defendant No.2 gave up his idea of
taking possession. After making further inquiries, plaintiffs came to
know that defendant No.3 Prashant Dattatray Bhat had sold the property
on 16.08.1996 to the defendant No.2 Parish Vasudev Bhat on the basis
of bogus power of attorney of Manjula. The plaintiffs realized this fact
when Miscellaneous Application No.21 of 2009 was decided on
14.07.2009. It is in these circumstances, the present suit is instituted for
declaration that the sale deed dated 16.08.1996 executed by the
defendant No.3 in favour of the defendant No.2 is illegal and for
injunction prohibiting them from taking possession. The plaintiffs,
therefore, prayed-
(a) for a declaration that the plaintiff Nos.2 became the owner under
the Will of Manjula and plaintiff No.1 became the owner by succession;
(b) for cancellation of sale deed dated 16.08.1996 in favour of the
defendant No.2 as also for the declaration that the power of attorney is
illegal and not binding upon the plaintiffs;
(c) for a declaration that defendant Nos.1 to 3 have no concern
whatsoever with the suit property;
(d) for perpetual injunction restraining defendant Nos.1 to 3 from
disturbing plaintiffs' possession over the suit property.
8. Along with the plaint, the plaintiffs annexed following
documents:
(a) extract of property and register card from the year 1941 till 2011;
(b) extract of assessment of municipal house No.984;
(c) registered Will of Shridhar Atmaram Prabhaskar dated
16.05.1985;
(d) Will dated 21.06.1993 of Manjulaben Gurjar;
(e) purported power of attorney dated 09.08.1996 of Manjulaben and
the true copy of the sale deed dated 16.08.1996;
(f) certified copy of the decision of the Assistant Charity
Commissioner in Miscellaneous Application No.5 of 1990 among other
documents.
9. Defendant No.1 filed application on 29.03.2011 under Order 7,
Rule 11(d) of C.P.C. for rejection of the plaint on the ground that the suit
property belongs to the Trust. Defendant Nos.1/1 to 1/11 are trustees of
the said Trust. Since the suit property is in possession of the Trust, the
trustees are in possession of the suit property. The Trust was registered
on 18.02.1959 and the suit property is mentioned in Schedule-A of the
Scheme. Plaintiff No.1 along with others were the trustees of the said
Trust. The relief claimed by the plaintiffs is related to the Trust property
and they have also challenged the ownership of the Trust. In view of
Sections 79 and 80 of the Act, the question whether the suit property is a
trust property or not is within the exclusive jurisdiction of the Charity
Commissioner, and therefore, the Civil Court has no jurisdiction to
entertain and try the Suit. Prayer was, therefore, made for rejecting the
plaint under Order 7, Rule 11(d) of the C.P.C. Defendant No.1 also filed
certified copies of the following documents:
a. extract of public trust registration of defendant No.1;
b. judgment and order dated 26.07.1991 in Application No.5 of 1990
along with the sanctioned scheme;
c. judgment and order in Application No.5 of 1990 of Assistant
Charity Commissioner, Raigad and annexure-A;
5/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
d. order dated 14.07.2009 in Miscellaneous Application No.25 of
2009;
e. application dated 08.08.2008 filed by the plaintiffs and others
before the Assistant Charity Commissioner, Raigad;
f. say dated 23.03.2009 filed by the plaintiff No.1 in Inquiry
Application No.48 of 2007 (21 of 2009) before the Assistant Charity
Commissioner, Raigad;
g. say dated 02.03.2009 filed by the plaintiff in Inquiry Application
No.48 of 2007 (21 of 2009) before the Assistant Charity Commissioner,
Raigad;
h. written arguments filed by the plaintiff No.1 in Inquiry
Application No.48 of 2007 (21 of 2009) before the Assistant Charity
Commissioner, Raigad;
i. scheme dated 02.03.2009 filed by the plaintiff No.1 in Inquiry
Application No.48 of 2007 (21 of 2009) before the Assistant Charity
Commissioner, Raigad;
10. The plaintiffs filed their reply dated 05.04.2011 resisting the said
application. By the impugned order, the learned trial Judge rejected the
application. It is against this order defendants have instituted present
application under Section 115 of the C.P.C.
11. In support of this Application, Mr. Gavnekar strenuously
submitted that the Suit instituted by the plaintiffs is clearly barred in
view of Sections 50, 79 and 80 of the Act. He submitted that the plaint
is liable to be rejected where the Suit appears from the statement in the
plaint to be barred by any law, namely, in the present case, the Act. He
invited my attention to Section 17 which deals with maintenance of
books, indices and registers in the office of the Authorities under the
6/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Act. Section 18 deals with registration of public trusts and in particular,
Section 18(5) lays down that application for registration of the public
trust shall contain the list of movable and immovable trust property and
such description and particulars as may be sufficient for the
identification thereof. Section 19 deals with making of an inquiry by
Deputy or Assistant Charity Commissioner on receipt of an application
under Section 18 or upon an application made by any person having
interest in a public trust or on his own motion. Section 20 provides that
on completion of inquiry under Section 19, the Deputy or Assistant
Charity Commissioner shall record his findings with reasons therefor as
to matters mentioned in Section 19. Section 21 lays down that the
Deputy or Assistant Charity Commissioner shall make entries in the
register kept under Section 17 in accordance with the findings recorded
by him under Section 20 or if appeals (or applications) are made as
provided by the Act, in accordance with the final decision of the
competent authority provided by the Act. Section 21(2) lays down that
the entries so made shall be subject to the provisions of the Act and
subject to any change recorded, be final and conclusive. Section 26 of
the Act lays down that any Court of competent jurisdiction deciding any
question relating to any public trust which by or under the provisions of
the Act is not expressly or impliedly barred from deciding shall cause
copy of such decision to be sent to the Charity Commissioner and the
Charity Commissioner shall cause the entries in the register kept under
Section 17 to be made or amended in regard to such public trust in
accordance with the decision. The entries so made or amended shall not
be altered except in cases where such decision has been varied in appeal
or revision by a Court of competent jurisdiction. Subject to such
alterations, the entries made or amended shall be final and conclusive.
12. He also invited my attention to Section 79, which lays down that
7/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
any question, whether or not a Trust exists and such Trust is a public
trust, or particular property is the property of such Trust, shall be
decided by the Deputy or Assistant Charity Commissioner or the Charity
Commissioner in appeal as provided by the Act. Sub-section (2) thereof
provides that the decision of the Deputy or Assistant Charity
Commissioner or the Charity Commissioner in Appeal, as the case may
be, shall, unless set aside by the decision of the Court (on application) or
of the High Court in appeal be final and conclusive.
13. Section 80 lays down that save and expressly provided in the Act,
no Civil Court shall have jurisdiction to decide or deal with any
question, which is by or under the Act, to be decided or deal with by any
officer or authority under the Act and in respect of which the decision or
order of such officer or authority has been made final and conclusive.
He submitted that the question whether particular property is the
property of such Trust or not is to be decided by the Deputy or Assistant
Charity Commissioner or the Charity Commissioner in appeal as the
case may be and the said decision is final and conclusive unless set aside
by the decision of the Court on application or by the High Court in
appeal. He, therefore, submitted that jurisdiction of the Civil Court is
expressly excluded. In support of his submissions, he relied upon the
following judgments:
(i) Church of North India Vs. Lavajibhai Ratanjibhai,
AIR 2005 SC 2544;
(ii) Keki Pestonji Jamadar Vs. Kohodadad Merwan Irani,
AIR 1973 Bom.130 (F.B.);
(iii) Mahibubi Vs. Sayed Abdul, 2001(2) Mh.L.J. 512;
(iv) Bashir Abbas Vs. Mahadeo, 2003 (2) Mh.L.J. 246;
(v) Lakhanlal Vs. M. S. Hanuman Mandir, 2006(2) Mh.L.J.479;
(vi) Keshav Vs State of Maharashtra, 2007 (2) Mh.L.J. 469 and
(vii) S.R.Ahmad Vs. Alima Begum w/o. Syed Gulam Jilani,
2009 (6) ALL MR 86.
14.
15. He submitted that in any case, if this Court intends to take a
8/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
different view, it has to make reference to a larger Bench.
16. On the other hand, Ms Godse supported the impugned order. She
invited my attention to the case made out by the plaintiffs. She
submitted that the Trust is created only for the management of deity and
temple and the plaintiffs are not raising any dispute as regards
management of deity and temple. She invited my attention to the
P.R.Card of the suit property wherein the name of the Trust is not shown.
She also invited my attention to Index-II in respect of the suit property
wherein the name of the Trust is not entered. She submitted that the
learned trial Judge has rightly come to the conclusion that Civil Court
has jurisdiction to entertain and try the Suit instituted by the plaintiffs.
She invited my attention to paragraphs 78, 79 and 94 of the judgment of
the Apex Court in the case of Church of North India (supra) as also
Full Bench decision of this Court in the case of K. K. Jamadar (supra).
She submitted that no case is made out as covered under Section 115 of
the C.P.C.
17. I have considered the rival submissions made by the learned
Counsel appearing for the parties. I have also perused the material on
record. I have also considered the case made out by the plaintiffs in the
Plaint and the prayers made in the Suit. The controversy between the
parties is as regards the jurisdiction of the Civil Court to entertain and
try the Suit instituted by the plaintiffs in view of the provisions of the
Act and in particular Sections 79 and 80 thereof. As noted earlier,
Section 17 of the Act deals with maintenance of books, indices and
registers in the office of the Authorities under the Act. Section 18 deals
with registration of public trusts and in particular, Section 18(5) lays
down that application for registration of the public trust shall contain the
list of movable and immovable trust property and such description and
9/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
particulars as may be sufficient for the identification thereof. Section 19
deals with making of an inquiry by Deputy or Assistant Charity
Commissioner on receipt of an application under Section 18 or upon an
application made by any person having interest in a public trust or on his
own motion. Section 20 provides that on completion of inquiry under
Section 19, the Deputy or Assistant Charity Commissioner shall record
his findings with reasons therefor as to matters mentioned in Section 19.
Section 21 lays down that the Deputy or Assistant Charity
Commissioner shall make entries in the register kept under Section 17 in
accordance with the findings recorded by him under Section 20 or if
appeals (or applications) are made as provided by the Act, in accordance
with the final decision of the competent authority provided by the Act.
Section 21(2) lays down that the entries so made shall be subject to the
provisions of the Act and subject to any change recorded, be final and
conclusive. Section 26 of the Act lays down that any Court of
competent jurisdiction deciding any question relating to any public trust
which by or under the provisions of the Act is not expressly or impliedly
barred from deciding shall cause copy of such decision to be sent to the
Charity Commissioner and the Charity Commissioner shall cause the
entries in the register kept under Section 17 to be made or amended in
regard to such public trust in accordance with the decision. The entries
so made or amended shall not be altered except in cases where such
decision has been varied in appeal or revision by a Court of competent
jurisdiction. Subject to such alterations, the entries made or amended
shall be final and conclusive.
18. Section 79 and 80 of the Act read as under:
“79. Decision of property as Public trust property
(1) Any question, whether or not a trust exists and such trust is a
public trust or particular property is the property of such trust, shall be
decided by the Deputy or Assistant Charity Commissioner on the Charity
Commissioner in appeal as provided by this Act.
10/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
(2) The decision of the Deputy or Assistant Charity Commissioner or
the Charity Commissioner in appeal, as the case may be, shall, unless set
aside by the decision of the Court on application or of the High Court in
appeal be final and conclusive.
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 the decision or order of such officer or authority has been
made final and conclusive.”
19. The question as regards ouster of a jurisdiction of the Civil Court
must be construed having regard to the scheme of the Act as also the
object and purpose it seeks to achieve. A plea of bar to jurisdiction of a
Civil Court must be considered having regard to the contentions raised
in the plaint. For that purpose, averments disclosing cause of action and
the reliefs sought for therein must be considered in its entirety. The
Court may not be justified in determining the question, one way or the
other, only having regard to the reliefs claimed de'hors the factual
averments made in the plaint.
20. In the case of Dhulabhai Vs. State of Madhya Pradesh, Hon’ble
Mr. Justice Hidayatullah, C.J.I. summarized the following principles
relating to the exclusion of jurisdiction of the Civil Court:
(a) 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 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 tribunals has not acted in
conformity with the fundamental principles of judicial procedure.
(b) 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
11/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
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. 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. (c) 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.
(d) When the 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.
(e) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a
suit lies.
(f) 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.
(g) An exclusion of the jurisdiction of the civil court is not readily to
be inferred unless the conditions above set down apply.
12/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
21. Section 80 of the Act contains an express bar to the jurisdiction of
the Civil Court, but that is subject to the satisfaction of the twin
conditions. The existence of those conditions must be strictly
established before an ouster of jurisdiction can result. The correct test in
law to apply is (i) whether the controversy which is sought to be raised
before the Civil Court requires an adjudication of a matter or question
which has to be decided or dealt with by an officer or authority under the
Act while exercising his power under the Act and (ii) whether such a
decision is made final or conclusive. In determining this issue, the Court
has to consider substance and not merely the form in which the claim
before the Civil Court is made and the underlying object of seeking the
real relief. The Civil Court will have no jurisdiction in relation to a
matter wherever 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 the matter, unconnected with the administration
or possession of the Trust property, the Civil Court will have
jurisdiction.
22. In the case of Keki Pestonji Jamadar (supra), which is the locus
classicus on the subject, the Full Bench of this Court considered the
following questions:
(1) Is the question whether the author of the trust was the lawful
owner of the property of which he has created the trust or had
otherwise authority to create the particular trust, covered by Section
79 read with Section 80 of the Bombay Public Trusts Act, 1950?
(2) Can a person who has once appeared in the proceedings under
the Bombay Public Trusts Act and has made his contentions therein
on the above question, bring a suit in a Civil Court in respect of such
a question? Or,
(3) Has the Civil Court no jurisdiction to deal with or decide such
a question by reason of Section 80 of the Act?
22. In paragraph 20, the Full Bench observed that the third question
relegated to the decision of the Deputy or Assistant Charity
Commissioner is whether the “particular property is the property of such
13/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Trust”. This clause is couched in words of doubtful import leading to
the expression of divergent views as regards its scope. On behalf of the
appellant, it was contended that as the question whether the particular
property is the property of the Trust cannot be answered without
deciding whether the author of the Trust had the right or title to the
property conveyed to the Trust, the authorities must decide this latter
question and indeed, it is their function and duty to decide it. It was
urged that the questions of title to the particular property are thus
required to be decided in inquiries under Section 19 and the
jurisdiction of the Civil Court to decide those questions is barred
under Section 80. The contesting respondents contended that the
question whether the author of the Trust had title to the property
conveyed to the Trust is outside the scope of the inquiry under Section
19, and therefore, the jurisdiction of the Civil Courts to decide or deal
with that question is not barred. The learned Government Pleader
pointed out the merits and demerits of both the views and submitted that
the contentions of the respondents should be accepted in preference to
that of the appellant. The Full Bench considered the purpose of the Act,
the procedure prescribed in inquiries under Section 19, the absence
of any remedy under the Act to those who were not parties to the inquiry
under Section 19 but whose anterior or superior title would be concluded
by the decision in that inquiry and the general scheme of the Act and
observed that all tend to show that questions of title to the Trust
property are outside the scope of the inquiry under Section 19.
(Emphasis supplied)
23. In paragraph 21, the Full Bench considered the statement of
Objects and Reasons in enacting the Act and observed that dominant
purpose of the Act is to regulate the administration of public trusts
and not to settle disputed titles to the property alleged to belong to
14/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
the trust. In paragraph 22, it was observed that the procedure
prescribed under the Act for the conduct of inquiries under Section 19 is
wholly unsuited to a proper and effective adjudication of disputed titles
to the Trust property. Under Section 19, the Deputy or Assistant Charity
Commissioner has to conduct an inquiry “in the prescribed manner”.
Rule 7 deals with the manner of inquiries and provides that the inquiries
prescribed for the trial of the suits under the Presidency Small Cause
Courts Act, 1882 or the Provincial Small Cause Courts Act, 1887, as the
case may be, would apply to the proceedings under Section 19. Under
Sections 19(d), (e), (f) and (g) of the Presidency Small Causes Courts
Act, 1882 and under Item 4 of the Second Schedule of the Provincial
Small Causes Courts Act to decide questions of title to immovable
property is expressly excluded and the procedure devised for trials is
consequently far too summary for a proper adjudication of such
titles. The provision in Rule 7 that a party to an inquiry can appear
through an agent and the power of the Tribunal to exclude lawyers
from the inquiries would reveal to some extent the narrow nature of
the inquiry envisaged by Section 19. (Emphasis supplied)
24. In paragraph 23, it was observed that Rule 11 provides that the
officer holding the inquiry may only make a memorandum of the
substance of what each witness deposes. It is unthinkable that
questions of title could be permitted to be decided by a Tribunal
finally and conclusively without any obligation to record the
evidence fully. It is a matter of common experience that subtle
shades of evidence are often missed in a memorandum containing
merely the substance of the evidence. In paragraph 24, it was
observed that such inquiries could not possibly conclude disputed
titles and that it is not part of the functions of the Authorities under
Section 19 to decide claims which are adverse to the Trust and which are
15/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
made in assertion of titles which are hostile to the Trust. Such titles
cannot be held concluded in violation of the principles of natural justice.
In paragraph 25, it was observed that neither the Act nor the Rules
contemplate that a person who claims adversely to the Trust or who
disputes the right of title of the author of the Trust to the Trust property
must be heard in the inquiry under Section 19. In paragraph 26, the Full
Bench considered Sections 70, 70-A and 72 and observed that the fact
that the Legislature has expressly provided for these remedies against the
decisions rendered under Section 19 is undoubtedly relevant, because
summary decisions are seldom accorded the privilege of being taken that
high. It opined that this circumstance is not sufficient by itself to
extend scope of the inquiry under Section 19 so as to bring within its
sweep, contested questions as regards the title to the trust property.
In paragraph 40, the Full Bench answered the first question in the
negative. (Emphasis supplied)
25. Mr. Gavnekar heavily relied upon paragraphs 65, 66 and 67 of the
judgment of the Apex Court in the case of Church of North India
(supra) wherein it is observed that the Act provides for finality and
conclusiveness of the order passed by the Charity Commissioner in
Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2), and that, Section
19 provides for an inquiry for registration with a view to ascertaining
inter alia the mode of succession to the office of the trustees as also
whether any property is the property of such Trust. It is only when the
statutory authority satisfies itself as regards the genuineness of the Trust
and the properties held by it and entries made in the registers, books, etc.
maintained in terms of Section 17 of the Act in consonance with the
provisions of Section 21 thereof. Such an entry, it will bear repetition to
State, is final and conclusive. Changes can be brought about only in
terms of Section 22 thereof.
16/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
26. On the other hand, Ms Godse heavily relied upon paragraph 78 of
that report and submitted that the provisions of the Act and the scheme
thereof leave no manner of doubt that the Act is a complete code in
itself. The matter, however, would be different if the property is not a
trust property in the eyes of law. The Civil Court's jurisdiction may not
be barred as it gives rise to a jurisdictional question. If a property did
not validly vest in a trust or if a trust itself is not valid in law, the
authorities under the Act will have no jurisdiction to determine the said
question. In paragraph 94 of that report, the Apex Court observed that
the Civil Court will have no jurisdiction in relation to the matter
wherever 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.
27. Mr. Gavnekar relied upon the decision of the learned Single Judge
of this Court in the case of Mahibubi (supra) and submitted that Section
80 of the Act postulates express bar of jurisdiction against the Civil
Court to decide or deal with any question which is by or under the Act
has to be decided or dealt with by any officer or authority under the Act
and which the decision or order of officer or authority has been made
final and conclusive. The Civil Court by itself cannot be permitted to
usurp the exclusive jurisdiction of the Competent Authority in view of
the express bar under Section 80 of the Act on the assumption that the
question of title of the suit property is a complicated one. Even if the
question regarding the title of the suit property was a complicated one,
even then it is for the Competent Authority under the Act to pronounce
in that behalf. In the first place, the decision of the Full Bench of this
Court in the case of Keki Jamadar(supra) was not cited before the learned
Single Judge. Secondly, as observed by the Full Bench in paragraph 16
of the decision in the case of Keki Jamadar (supra) and by the Division
17/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Bench of this Court in the case of Charu K. Mehta Vs. L. K. Mehta
Medical Trust, 2013 (1) Bom.C.R. 23, Section 80 of the Act contains an
express bar to the jurisdiction of the Civil Court, but that is subject to the
satisfaction of the dual conditions. The existence of those conditions
must be strictly established before an ouster of jurisdiction can result.
The correct test in law to apply is (i) whether the controversy which is
sought to be raised before the Civil Court requires an adjudication of a
matter or question which has to be decided or dealt with by an officer or
authority under the Act and (ii) whether such a decision is made final or
conclusive. Thirdly, the Full Bench after exhaustively considering the
scheme of the Act, the nature of the inquiry under Section 19 has
categorically held that the questions of title to the Trust property are
outside the scope of inquiry under Section 19. In view thereof, I find
myself unable to subscribe to the view expressed by the learned Single
Judge in the case of Mahibubi (supra).
28. Mr. Gavnekar further relied upon the decision of the learned
Single Judge of this Court in the case of Bashir Abbas (supra). In
paragraph 6 of that judgment, it was observed that in substance, the
reliefs claimed by the respondents would require the Court to examine as
to whether the trust exists and whether such Trust is a public trust and
whether the suit property is the property of such Trust. The first
Appellate Court clearly misdirected itself by proceeding on the premise
that the Suit was for declaration of title of the suit property. However,
that was not the relief claimed by the respondents in the Suit as filed. On
the other hand, the Suit is purely for declaration that the suit property is
an old Hindu Hemadpanthi temple of Shri Mahadeo and that Hindus
have right to worship the deities in that temple. In paragraph 8, the
learned Single Judge considered the decision of the Full Bench in the
case of Keki Pestonji Jamadar (supra) and observed the question,
18/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
which was considered by the Full Bench, did not arise in the case before
him. I am therefore, of the view that the judgment in the case of Bashir
Abbas (supra) does not advance the case of the petitioner.
29. Mr. Gavnekar also relied upon the decision of the learned Single
Judge of this Court in the case of Lakhanlal Purohit (supra). In the
first place, the decision of the Full Bench of this Court in the case of
Keki Pestonji (supra) was not cited before the learned Single Judge.
Secondly, it was held that though the prayer in the Suit was for the
declaration that the defendants had no right to transfer or execute a sale
deed or hand-over possession of any portion of the suit field, on reading
the plaint as a whole, it was clear that in substance it was the basic
assertions of the plaintiff that the property belongs to the respondent and
therefore, the defendants cannot alienate it. Only if the said question
was decided in favour of the plaintiff that the declaration sought by them
could be granted by the Court. The learned Single Judge observed that
the Suit, therefore, involved the question whether the suit property
belongs to the respondent Trust or not. As the Suit involved the question
that was liable to be determined under Section 79 of the Act, the Suit
was barred by Section 80 of the Act. The learned Single Judge with
respect did not consider satisfaction of two conditions as enunciated by
Full Bench decision in the case of Keki Pestonji Jamadar (supra) as
also ratio laid down therein. I, therefore, find myself unable to agree
with the view expressed by the learned Single Judge.
30. Mr. Gavnekar relied upon the decision of the learned Single Judge
of this Court in the case of Keshav N. Bharti (supra). In that case, the
learned Single Judge considered the decision of the Full Bench of this
Court in the case of Keki Pestonji (supra) as also the decision of the
19/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Apex Court in the case of Church of North India (supra). In paragraph
7, the learned Single Judge observed that the Assistant Charity
Commissioner, Aurangabad held that the suit property is service inam
and declared it as a public trust property. After considering the scheme
of the Act, the learned Single Judge observed in paragraph 15 that the
first declaration sought by the plaintiff to the effect that the order passed
by the Assistant Charity Commissioner on 23.01.1964 is null and void,
ultra vires and not binding on the plaintiff cannot be considered by the
Civil Court. In paragraph 16, the learned Single Judge observed that the
plaintiff prayed for a declaration that the suit property is not the property
of a public or private trust and after considering Sections 79 and 80 held
that the prayer of declaration that the suit property is not a property of a
public or private trust is clearly beyond the jurisdiction of the Civil
Court. I regret my inability to subscribe to the view expressed by the
learned Single Judge in view of the Full Bench decision of this Court in
the case of Keki Pestonji (supra) and Division Bench decision of this
Court in the case of Charu K. Mehta (supra).
31. Finally, Mr. Gavnekar relied upon the decision of the learned
Single Judge of this Court in the case of S. R. Ahmed (supra), and in
particular, paragraph 16 thereof. The learned Single Judge considered
the judgment of the Full Bench in the case of Keki Pestonji Jamadar
(supra) as also the decision of the Apex Court in the case of Church of
North India (supra) and observed that in the case at hand, the property
was entered in the Trust register in 1972 itself and it was sought to be
challenged in 1988. Since the property is entered in the trust register, it
is deemed to be trust property. Had it not been included in the trust
register, the suit would have been tenable. In paragraph 17, the learned
Single Judge observed that since the property is already included in trust
register long back and when the plaintiff himself was one of the
20/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
applicants who applied for entry of such property in trust register, the
only remedy that was available to the plaintiff was one by way of
revision or appeal against the Deputy Charity Commissioner's decision.
He could not file Suit. I find myself unable to agree with this
proposition. As noted earlier, Full Bench in the case of Keki Pestonji
Jamadar (supra) has categorically held that the questions of title of the
trust property are outside the scope of inquiry under Section 19. Thus,
the question of title cannot be adjudicated by an officer or authority
under the Act. If that be so, one of the twin conditions laid down under
Section 80 of the Act is not satisfied and merely because the entries have
been made final and conclusive that by itself does not oust the
jurisdiction of the Civil Court.
32. Mr. Gavnekar submitted that the decisions in the case of (i)
Mahibubi (supra), (ii) Bashir Abbas (supra), (iii) Lakhanlal Purohit
(supra) and (iv) Keshav N. Bharti (supra) are rendered by the learned
Single Judges and if this Court intends to take a different view, the
matter should be referred to a larger Bench. I do not find any merit in
this submission. I have already held that in the case of Keki Pestonji
Jamadar (supra), Full Bench after considering the purpose of the Act,
the procedure prescribed in inquiries under Section 19 and the general
scheme of the Act held that the questions of title to the trust property are
outside the scope of the inquiry under Section 19. It was also held that
the express bar to the jurisdiction of the Civil Court under Section 80 of
the Act is subject to the satisfaction of the twin conditions namely (i)
whether the controversy which is sought to be raised before the Civil
Court requires an adjudication of a matter or question which has to be
decided or dealt with by an officer or authority under the Act while
exercising his power under the Act and (ii) whether such a decision is
made final or conclusive. This has been reiterated by the Division
21/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Bench of this Court in the case of Charu K. Mehta (supra). In view of
this position, with great respect, the judgments rendered in the case of (i)
Mahibubi (supra), (ii) Lakhanlal Purohit (supra), (iii) Keshav N.
Bharti (supra) and (iv) S. R. Ahmed (supra) do not lay down the
correct proposition of law. Since in my opinion these judgments did not
correctly apply the Full Bench decision of this Court in the case of Keki
Pestonji Jamadar (supra), it is not necessary for me to refer this matter
to the larger Bench. Insofar as the judgment of the learned Single Judge
of this Court in the case Bashir Abbas (supra) is concerned, in
paragraph 8 of that report, the learned Single Judge considered the
decision of the Full Bench in the case of Keki Pestonji Jamadar
(supra) and observed that the question which was considered by the Full
Bench did not arise in the case before him.
33. In the present case, the plaintiffs have not raised any dispute as
regards administration or management of the Trust, deities and temple.
In other words, since the questions raised in the Suit are unconnected
with the administration or possession of the trust property, the Civil
Court will have the jurisdiction to entertain and try the Suit. In the light
of the Full Bench decision of this Court in the case of Keki Pestonji
Jamadar (supra), I have already held that the question of title to the
trust property is outside the scope of enquiry under Section 19 of the
Act. As noted earlier, Section 26 of the Act lays down that any Court of
competent jurisdiction deciding any question relating to any public trust
which by or under the provisions of the Act is not expressly or impliedly
barred from deciding shall cause copy of such decision to be sent to the
Charity Commissioner and the Charity Commissioner shall cause the
entries in the Register kept under Section 17 to be made or amended in
regard to such public trust in accordance with the decision. The entries
so made or amended shall not be altered except in cases where such
22/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
decision has been varied in appeal or revision by Court of competent
jurisdiction. Subject to such alterations, the entries made or amended
shall be final and conclusive. The entries so made in the register under
Section 17 of the Act are subject to the decision of the Court of
competent jurisdiction as per Section 26 of the Act, and are, therefore,
not sacrosanct.
34. One more aspect that requires to be noted is that the plaintiffs
have also prayed for declaration that the sale deed dated 16.08.1996
executed in favour of the defendant No.2 on the basis of the purported
power of attorney of Manjula B. Gurjar is illegal and not binding on the
plaintiffs. In the case of Sopan Sukhdeo Sable Vs. Assistant Charity
Commissioner, (2004) 3 SCC 137, it is observed that merely because
some of the reliefs cannot be granted in the Civil Court, it would not
entail an automatic rejection of the entire plaint. In other words,
assuming that prayer clause (a) cannot be granted by the Civil Court in
view of bar under Sections 79 and 80 of the Act, nonetheless the
Authorities under the Act cannot decide prayer clause (b) and the said
prayer can be decided only by the Civil Court. Consequently, the Civil
Court would not be justified in rejecting the plaint in its entirety. This is
more so when the case of the plaintiffs is that the suit property does not
belong to the Trust and is a private property of the plaintiffs. The case
of the plaintiffs is that no instrument is executed transferring the suit
property in favour of the Trust. In other words, the case of the plaintiffs
is that the property did not validly vest in the Trust and therefore, the
Authorities under the Act will have no jurisdiction to determine the
question of title to the trust property.
35. In view of the foregoing discussion, I do not find any merit in this
Application. The Application fails and the same is dismissed. Rule is
23/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
discharged. However, in the circumstances of the case, there shall be no
order as to costs.
(R. G. KETKAR, J.)
24/24
Minal Parab
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.150 OF 2012
Shree Hanuman Mandir, Alibag, Public Trust
through its Trustees and others … Petitioners
Vs.
Satishchandra Bhalchandra Gurjar and others … Respondents
Mr. C. G. Gavnekar for Petitioners.
Ms Gauri Godse for Respondent Nos.1 and 2.
CORAM : R. G. KETKAR, J.
DATE : 1ST MARCH, 2013
P.C.:
This matter is placed on Board in view of the typographical error
appearing in paragraph 23 as also error arising from accidental slip in
paragraph 29 of the judgment dated 26.02.2013.
2. Insofar as typographical error in paragraph 23 is concerned, instead
of 'paragraph 22', it is wrongly typed as 'paragraph 27'. In view thereof,
figure '27' shall stand substituted by figure '22'.
3. Insofar as error arising from accidental slip in paragraph 29 is
concerned, in that paragraph, I have considered the decision of the learned
Single Judge of this Court in the case of Lakhanlal Vs. M. S. Hanuman
Mandir, 2006(2) Mh.L.J.479. That decision was rendered on 08.02.2006.
While disagreeing with that decision, I have observed as under:
“The learned Single Judge with respect did not consider satisfaction
of two conditions as enunciated by Full Bench decision in the case of
Keki Pestonji Jamadar (supra) as also ratio laid down therein and
Division Bench decision in the case of Charu K. Mehtra (supra).”
4. The decision of the Division Bench of this Court in the case of
Charu K. Mehta Vs. L. K. Mehta Medical Trust, 2013 (1) Bom.C.R. 23 was
rendered on 06.11.2012. In such circumstances, the learned Single Judge
while deciding the case of Lakhanlal (supra) would have no occasion to
25/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
consider the decision of the Division Bench of this Court in the case of
Charu K. Mehtra (supra). Thus, there is obvious error arising from
accidental slip and, therefore, I am correcting that error suo motu in
exercise of power under Section 152 of the Code of Civil Procedure, 1908
thereby deleting following words in paragraph 29:
“and Division Bench decision in the case of Charu K. Mehtra (supra).”
(R. G. KETKAR, J.)
26/24
Minal Parab
::: Downloaded on - 26/06/2013 21:15:42 :::
Print Page
officer holding the inquiry may only make a memorandum of the
substance of what each witness deposes. It is unthinkable that
questions of title could be permitted to be decided by a Tribunal
finally and conclusively without any obligation to record the
evidence fully. It is a matter of common experience that subtle
shades of evidence are often missed in a memorandum containing
merely the substance of the evidence. In paragraph 24, it was
observed that such inquiries could not possibly conclude disputed
titles and that it is not part of the functions of the Authorities under
Section 19 to decide claims which are adverse to the Trust and which are
made in assertion of titles which are hostile to the Trust. Such titles
cannot be held concluded in violation of the principles of natural justice.
In paragraph 25, it was observed that neither the Act nor the Rules
contemplate that a person who claims adversely to the Trust or who
disputes the right of title of the author of the Trust to the Trust property
must be heard in the inquiry under Section 19. In paragraph 26, the Full
Bench considered Sections 70, 70-A and 72 and observed that the fact
that the Legislature has expressly provided for these remedies against the
decisions rendered under Section 19 is undoubtedly relevant, because
summary decisions are seldom accorded the privilege of being taken that
high. It opined that this circumstance is not sufficient by itself to
extend scope of the inquiry under Section 19 so as to bring within its
sweep, contested questions as regards the title to the trust property.
In paragraph 40, the Full Bench answered the first question in the
negative
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.150 OF 2012
Shree Hanuman Mandir, Alibag, Public Trust
Vs.
Satishchandra Bhalchandra Gurjar and others … Respondents
CORAM : R. G. KETKAR, J.
Pronounced on: 26TH FEBRUARY, 2013
2. By this Application under Section 115 of the Code of Civil
Procedure, 1908 (for short 'C.P.C.'), the original defendant Nos.1, 1/1,
1/2, 1/3 , 1/5, 1/7, 1/8 and 1/11 have challenged the judgment and order
dated 26.04.2011 passed by the learned Civil Judge Senior Division,
Alibaug below exhibit-40 in Special Civil Suit No.54 of 2011. By that
order, the learned trial Judge rejected the application made by the
applicants under Order 7, Rule 11(d) of the C.P.C. for rejection of the
plaint. The relevant and material facts that are necessary for the
disposal of the present application, briefly stated, are as under:
3. Respondent Nos.1 and 2 instituted Short Cause Suit No.54 of
2011 in the Court of Civil Judge Senior Division, Alibaug and the
applicants were impleaded as defendant Nos.1, 1/1, 1/2, 1/4, 1/5, 1/6,
1/8 and 1/11 (for short 'defendants'). Respondent Nos.7 and 8 were
impleaded as defendant Nos.2 and 3. The property in dispute between
the parties is City Survey No.627 admeasuring 132.1 sq.mtr. and
Municipal House No.94 situate at Alibaug, District - Raigad (for short
'suit property').
4. Respondent Nos.1 and 2 (for short 'plaintiffs') instituted the Suit
contending inter alia that the suit property was originally owned by one
Durgabai Aatmaram alias Vishnuram Prabhaskar and Radhabai
Balkrishna Prabhaskar. Durgabai and Radhabai had purchased the suit
property by registered sale deed dated 26.07.1941 from Hari
Purushottam Prabhaskar. After the death of Radhabai, Durgabai became
the exclusive owner of the suit property. After the death of Durgabai,
her son Shridhar Atmaram Prabhaskar inherited that property. There is
old Shri Hanuman Temple in Municipal House No.984 and that is the
private Devasthan of Prabhaskar family. Accordingly, the name of
Shridhar Atmaram Prabhaskar was recorded in respect of the suit
property.
5. It is the case of the plaintiffs that since 1948, Shridhar was
staying separate from his wife and son. Shridhar executed registered
will on 16.05.1985 bequeathing the suit property and the temple in
favour of his close relation Manjula Bhalchandra Gurjar . Shridhar died
on 11.08.1985. After the death of Shridhar, Manjula exclusively became
the owner of the suit property. Manjula in turn executed will on
21.06.1993 and bequeathed the suit property together with temple and
management of the temple in favour of plaintiff No.2. Plaintiff No.2
became owner of the suit property as also Hanuman Temple and deities.
Said Manujla is the mother of plaintiff No.1 and grandmother of
plaintiff No.2. Manjula died on 24.08.1997. The plaintiffs further
contended in the alternative though they have inherited the suit property
by succession, it was wrongly recorded as a 'public trust property'. The
plaintiffs have made separate application before the Authorities under
the Bombay Public Trusts Act, 1950 (for short 'Act') for cancellation of
the said entry. In the record before the Authorities under the Act, though
the entry is made about management and administration of Hanuman
temple and other deities, the suit property does not belong to the Trust -
Hanuman Mandir, Alibaug and is private property of the plaintiffs as no
instrument is executed transferring the suit property in favour of the
Trust.
6. It is the case of the plaintiffs that the order and the entries made in
the register maintained under the Act are not binding on them. It is the
case of the plaintiffs that after the death of trustees - Anant Bhat and
Tulshidas Sheth, Sunanda Ghumkar was the lone trustee. Before the
appointment of defendant Nos.1/1 to 1/11 as trustees of the Trust, they
started obstructing plaintiff No.1 from carrying out worship and
managing the affairs of the Trust. In view of the dispute between them
and the plaintiff No.1, compromise was arrived at between the parties
and they agreed to appoint plaintiff No.1 as permanent Pujari and trustee
only for the management of the temple. It was further agreed that the
Trust will not claim any ownership rights in the suit property. Plaintiff
No.1, therefore, agreed to become trustee and gave consent.
Accordingly, from 26.07.1996 till 14.07.2009, plaintiff No.1 was acting
as a trustee. Defendant Nos.1/1 to 1/11 made false complaints against
the plaintiffs and the plaintiff No.1 was removed as a trustee from
15.07.2009. Defendant Nos.1/1 to 1/11 alleged that Manjulapredecessor in title of the plaintiffs had sold the suit property when in
fact Manjulaben did not enter into any transaction.
7. It is the further case of the plaintiffs that all the defendants tried
to take forcible possession of the suit property and drive away the
plaintiffs. The plaintiffs, however, did not handover possession. The
plaintiffs apprehend that in future they will be dispossessed forcibly
from the suit property and therefore, the present Suit is instituted. It is
the case of the plaintiffs that defendant No.2 was not given possession
though he tried to take forcible possession. The plaintiffs made
complaints to the police whereupon defendant No.2 gave up his idea of
taking possession. After making further inquiries, plaintiffs came to
know that defendant No.3 Prashant Dattatray Bhat had sold the property
on 16.08.1996 to the defendant No.2 Parish Vasudev Bhat on the basis
of bogus power of attorney of Manjula. The plaintiffs realized this fact
when Miscellaneous Application No.21 of 2009 was decided on
14.07.2009. It is in these circumstances, the present suit is instituted for
declaration that the sale deed dated 16.08.1996 executed by the
defendant No.3 in favour of the defendant No.2 is illegal and for
injunction prohibiting them from taking possession. The plaintiffs,
therefore, prayed-
(a) for a declaration that the plaintiff Nos.2 became the owner under
the Will of Manjula and plaintiff No.1 became the owner by succession;
(b) for cancellation of sale deed dated 16.08.1996 in favour of the
defendant No.2 as also for the declaration that the power of attorney is
illegal and not binding upon the plaintiffs;
(c) for a declaration that defendant Nos.1 to 3 have no concern
whatsoever with the suit property;
(d) for perpetual injunction restraining defendant Nos.1 to 3 from
disturbing plaintiffs' possession over the suit property.
8. Along with the plaint, the plaintiffs annexed following
documents:
(a) extract of property and register card from the year 1941 till 2011;
(b) extract of assessment of municipal house No.984;
(c) registered Will of Shridhar Atmaram Prabhaskar dated
16.05.1985;
(d) Will dated 21.06.1993 of Manjulaben Gurjar;
(e) purported power of attorney dated 09.08.1996 of Manjulaben and
the true copy of the sale deed dated 16.08.1996;
(f) certified copy of the decision of the Assistant Charity
Commissioner in Miscellaneous Application No.5 of 1990 among other
documents.
9. Defendant No.1 filed application on 29.03.2011 under Order 7,
Rule 11(d) of C.P.C. for rejection of the plaint on the ground that the suit
property belongs to the Trust. Defendant Nos.1/1 to 1/11 are trustees of
the said Trust. Since the suit property is in possession of the Trust, the
trustees are in possession of the suit property. The Trust was registered
on 18.02.1959 and the suit property is mentioned in Schedule-A of the
Scheme. Plaintiff No.1 along with others were the trustees of the said
Trust. The relief claimed by the plaintiffs is related to the Trust property
and they have also challenged the ownership of the Trust. In view of
Sections 79 and 80 of the Act, the question whether the suit property is a
trust property or not is within the exclusive jurisdiction of the Charity
Commissioner, and therefore, the Civil Court has no jurisdiction to
entertain and try the Suit. Prayer was, therefore, made for rejecting the
plaint under Order 7, Rule 11(d) of the C.P.C. Defendant No.1 also filed
certified copies of the following documents:
a. extract of public trust registration of defendant No.1;
b. judgment and order dated 26.07.1991 in Application No.5 of 1990
along with the sanctioned scheme;
c. judgment and order in Application No.5 of 1990 of Assistant
Charity Commissioner, Raigad and annexure-A;
5/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
d. order dated 14.07.2009 in Miscellaneous Application No.25 of
2009;
e. application dated 08.08.2008 filed by the plaintiffs and others
before the Assistant Charity Commissioner, Raigad;
f. say dated 23.03.2009 filed by the plaintiff No.1 in Inquiry
Application No.48 of 2007 (21 of 2009) before the Assistant Charity
Commissioner, Raigad;
g. say dated 02.03.2009 filed by the plaintiff in Inquiry Application
No.48 of 2007 (21 of 2009) before the Assistant Charity Commissioner,
Raigad;
h. written arguments filed by the plaintiff No.1 in Inquiry
Application No.48 of 2007 (21 of 2009) before the Assistant Charity
Commissioner, Raigad;
i. scheme dated 02.03.2009 filed by the plaintiff No.1 in Inquiry
Application No.48 of 2007 (21 of 2009) before the Assistant Charity
Commissioner, Raigad;
10. The plaintiffs filed their reply dated 05.04.2011 resisting the said
application. By the impugned order, the learned trial Judge rejected the
application. It is against this order defendants have instituted present
application under Section 115 of the C.P.C.
11. In support of this Application, Mr. Gavnekar strenuously
submitted that the Suit instituted by the plaintiffs is clearly barred in
view of Sections 50, 79 and 80 of the Act. He submitted that the plaint
is liable to be rejected where the Suit appears from the statement in the
plaint to be barred by any law, namely, in the present case, the Act. He
invited my attention to Section 17 which deals with maintenance of
books, indices and registers in the office of the Authorities under the
6/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Act. Section 18 deals with registration of public trusts and in particular,
Section 18(5) lays down that application for registration of the public
trust shall contain the list of movable and immovable trust property and
such description and particulars as may be sufficient for the
identification thereof. Section 19 deals with making of an inquiry by
Deputy or Assistant Charity Commissioner on receipt of an application
under Section 18 or upon an application made by any person having
interest in a public trust or on his own motion. Section 20 provides that
on completion of inquiry under Section 19, the Deputy or Assistant
Charity Commissioner shall record his findings with reasons therefor as
to matters mentioned in Section 19. Section 21 lays down that the
Deputy or Assistant Charity Commissioner shall make entries in the
register kept under Section 17 in accordance with the findings recorded
by him under Section 20 or if appeals (or applications) are made as
provided by the Act, in accordance with the final decision of the
competent authority provided by the Act. Section 21(2) lays down that
the entries so made shall be subject to the provisions of the Act and
subject to any change recorded, be final and conclusive. Section 26 of
the Act lays down that any Court of competent jurisdiction deciding any
question relating to any public trust which by or under the provisions of
the Act is not expressly or impliedly barred from deciding shall cause
copy of such decision to be sent to the Charity Commissioner and the
Charity Commissioner shall cause the entries in the register kept under
Section 17 to be made or amended in regard to such public trust in
accordance with the decision. The entries so made or amended shall not
be altered except in cases where such decision has been varied in appeal
or revision by a Court of competent jurisdiction. Subject to such
alterations, the entries made or amended shall be final and conclusive.
12. He also invited my attention to Section 79, which lays down that
7/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
any question, whether or not a Trust exists and such Trust is a public
trust, or particular property is the property of such Trust, shall be
decided by the Deputy or Assistant Charity Commissioner or the Charity
Commissioner in appeal as provided by the Act. Sub-section (2) thereof
provides that the decision of the Deputy or Assistant Charity
Commissioner or the Charity Commissioner in Appeal, as the case may
be, shall, unless set aside by the decision of the Court (on application) or
of the High Court in appeal be final and conclusive.
13. Section 80 lays down that save and expressly provided in the Act,
no Civil Court shall have jurisdiction to decide or deal with any
question, which is by or under the Act, to be decided or deal with by any
officer or authority under the Act and in respect of which the decision or
order of such officer or authority has been made final and conclusive.
He submitted that the question whether particular property is the
property of such Trust or not is to be decided by the Deputy or Assistant
Charity Commissioner or the Charity Commissioner in appeal as the
case may be and the said decision is final and conclusive unless set aside
by the decision of the Court on application or by the High Court in
appeal. He, therefore, submitted that jurisdiction of the Civil Court is
expressly excluded. In support of his submissions, he relied upon the
following judgments:
(i) Church of North India Vs. Lavajibhai Ratanjibhai,
AIR 2005 SC 2544;
(ii) Keki Pestonji Jamadar Vs. Kohodadad Merwan Irani,
AIR 1973 Bom.130 (F.B.);
(iii) Mahibubi Vs. Sayed Abdul, 2001(2) Mh.L.J. 512;
(iv) Bashir Abbas Vs. Mahadeo, 2003 (2) Mh.L.J. 246;
(v) Lakhanlal Vs. M. S. Hanuman Mandir, 2006(2) Mh.L.J.479;
(vi) Keshav Vs State of Maharashtra, 2007 (2) Mh.L.J. 469 and
(vii) S.R.Ahmad Vs. Alima Begum w/o. Syed Gulam Jilani,
2009 (6) ALL MR 86.
14.
15. He submitted that in any case, if this Court intends to take a
8/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
different view, it has to make reference to a larger Bench.
16. On the other hand, Ms Godse supported the impugned order. She
invited my attention to the case made out by the plaintiffs. She
submitted that the Trust is created only for the management of deity and
temple and the plaintiffs are not raising any dispute as regards
management of deity and temple. She invited my attention to the
P.R.Card of the suit property wherein the name of the Trust is not shown.
She also invited my attention to Index-II in respect of the suit property
wherein the name of the Trust is not entered. She submitted that the
learned trial Judge has rightly come to the conclusion that Civil Court
has jurisdiction to entertain and try the Suit instituted by the plaintiffs.
She invited my attention to paragraphs 78, 79 and 94 of the judgment of
the Apex Court in the case of Church of North India (supra) as also
Full Bench decision of this Court in the case of K. K. Jamadar (supra).
She submitted that no case is made out as covered under Section 115 of
the C.P.C.
17. I have considered the rival submissions made by the learned
Counsel appearing for the parties. I have also perused the material on
record. I have also considered the case made out by the plaintiffs in the
Plaint and the prayers made in the Suit. The controversy between the
parties is as regards the jurisdiction of the Civil Court to entertain and
try the Suit instituted by the plaintiffs in view of the provisions of the
Act and in particular Sections 79 and 80 thereof. As noted earlier,
Section 17 of the Act deals with maintenance of books, indices and
registers in the office of the Authorities under the Act. Section 18 deals
with registration of public trusts and in particular, Section 18(5) lays
down that application for registration of the public trust shall contain the
list of movable and immovable trust property and such description and
9/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
particulars as may be sufficient for the identification thereof. Section 19
deals with making of an inquiry by Deputy or Assistant Charity
Commissioner on receipt of an application under Section 18 or upon an
application made by any person having interest in a public trust or on his
own motion. Section 20 provides that on completion of inquiry under
Section 19, the Deputy or Assistant Charity Commissioner shall record
his findings with reasons therefor as to matters mentioned in Section 19.
Section 21 lays down that the Deputy or Assistant Charity
Commissioner shall make entries in the register kept under Section 17 in
accordance with the findings recorded by him under Section 20 or if
appeals (or applications) are made as provided by the Act, in accordance
with the final decision of the competent authority provided by the Act.
Section 21(2) lays down that the entries so made shall be subject to the
provisions of the Act and subject to any change recorded, be final and
conclusive. Section 26 of the Act lays down that any Court of
competent jurisdiction deciding any question relating to any public trust
which by or under the provisions of the Act is not expressly or impliedly
barred from deciding shall cause copy of such decision to be sent to the
Charity Commissioner and the Charity Commissioner shall cause the
entries in the register kept under Section 17 to be made or amended in
regard to such public trust in accordance with the decision. The entries
so made or amended shall not be altered except in cases where such
decision has been varied in appeal or revision by a Court of competent
jurisdiction. Subject to such alterations, the entries made or amended
shall be final and conclusive.
18. Section 79 and 80 of the Act read as under:
“79. Decision of property as Public trust property
(1) Any question, whether or not a trust exists and such trust is a
public trust or particular property is the property of such trust, shall be
decided by the Deputy or Assistant Charity Commissioner on the Charity
Commissioner in appeal as provided by this Act.
10/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
(2) The decision of the Deputy or Assistant Charity Commissioner or
the Charity Commissioner in appeal, as the case may be, shall, unless set
aside by the decision of the Court on application or of the High Court in
appeal be final and conclusive.
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 the decision or order of such officer or authority has been
made final and conclusive.”
19. The question as regards ouster of a jurisdiction of the Civil Court
must be construed having regard to the scheme of the Act as also the
object and purpose it seeks to achieve. A plea of bar to jurisdiction of a
Civil Court must be considered having regard to the contentions raised
in the plaint. For that purpose, averments disclosing cause of action and
the reliefs sought for therein must be considered in its entirety. The
Court may not be justified in determining the question, one way or the
other, only having regard to the reliefs claimed de'hors the factual
averments made in the plaint.
20. In the case of Dhulabhai Vs. State of Madhya Pradesh, Hon’ble
Mr. Justice Hidayatullah, C.J.I. summarized the following principles
relating to the exclusion of jurisdiction of the Civil Court:
(a) 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 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 tribunals has not acted in
conformity with the fundamental principles of judicial procedure.
(b) 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
11/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
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. 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. (c) 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.
(d) When the 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.
(e) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a
suit lies.
(f) 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.
(g) An exclusion of the jurisdiction of the civil court is not readily to
be inferred unless the conditions above set down apply.
12/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
21. Section 80 of the Act contains an express bar to the jurisdiction of
the Civil Court, but that is subject to the satisfaction of the twin
conditions. The existence of those conditions must be strictly
established before an ouster of jurisdiction can result. The correct test in
law to apply is (i) whether the controversy which is sought to be raised
before the Civil Court requires an adjudication of a matter or question
which has to be decided or dealt with by an officer or authority under the
Act while exercising his power under the Act and (ii) whether such a
decision is made final or conclusive. In determining this issue, the Court
has to consider substance and not merely the form in which the claim
before the Civil Court is made and the underlying object of seeking the
real relief. The Civil Court will have no jurisdiction in relation to a
matter wherever 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 the matter, unconnected with the administration
or possession of the Trust property, the Civil Court will have
jurisdiction.
22. In the case of Keki Pestonji Jamadar (supra), which is the locus
classicus on the subject, the Full Bench of this Court considered the
following questions:
(1) Is the question whether the author of the trust was the lawful
owner of the property of which he has created the trust or had
otherwise authority to create the particular trust, covered by Section
79 read with Section 80 of the Bombay Public Trusts Act, 1950?
(2) Can a person who has once appeared in the proceedings under
the Bombay Public Trusts Act and has made his contentions therein
on the above question, bring a suit in a Civil Court in respect of such
a question? Or,
(3) Has the Civil Court no jurisdiction to deal with or decide such
a question by reason of Section 80 of the Act?
22. In paragraph 20, the Full Bench observed that the third question
relegated to the decision of the Deputy or Assistant Charity
Commissioner is whether the “particular property is the property of such
13/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Trust”. This clause is couched in words of doubtful import leading to
the expression of divergent views as regards its scope. On behalf of the
appellant, it was contended that as the question whether the particular
property is the property of the Trust cannot be answered without
deciding whether the author of the Trust had the right or title to the
property conveyed to the Trust, the authorities must decide this latter
question and indeed, it is their function and duty to decide it. It was
urged that the questions of title to the particular property are thus
required to be decided in inquiries under Section 19 and the
jurisdiction of the Civil Court to decide those questions is barred
under Section 80. The contesting respondents contended that the
question whether the author of the Trust had title to the property
conveyed to the Trust is outside the scope of the inquiry under Section
19, and therefore, the jurisdiction of the Civil Courts to decide or deal
with that question is not barred. The learned Government Pleader
pointed out the merits and demerits of both the views and submitted that
the contentions of the respondents should be accepted in preference to
that of the appellant. The Full Bench considered the purpose of the Act,
the procedure prescribed in inquiries under Section 19, the absence
of any remedy under the Act to those who were not parties to the inquiry
under Section 19 but whose anterior or superior title would be concluded
by the decision in that inquiry and the general scheme of the Act and
observed that all tend to show that questions of title to the Trust
property are outside the scope of the inquiry under Section 19.
(Emphasis supplied)
23. In paragraph 21, the Full Bench considered the statement of
Objects and Reasons in enacting the Act and observed that dominant
purpose of the Act is to regulate the administration of public trusts
and not to settle disputed titles to the property alleged to belong to
14/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
the trust. In paragraph 22, it was observed that the procedure
prescribed under the Act for the conduct of inquiries under Section 19 is
wholly unsuited to a proper and effective adjudication of disputed titles
to the Trust property. Under Section 19, the Deputy or Assistant Charity
Commissioner has to conduct an inquiry “in the prescribed manner”.
Rule 7 deals with the manner of inquiries and provides that the inquiries
prescribed for the trial of the suits under the Presidency Small Cause
Courts Act, 1882 or the Provincial Small Cause Courts Act, 1887, as the
case may be, would apply to the proceedings under Section 19. Under
Sections 19(d), (e), (f) and (g) of the Presidency Small Causes Courts
Act, 1882 and under Item 4 of the Second Schedule of the Provincial
Small Causes Courts Act to decide questions of title to immovable
property is expressly excluded and the procedure devised for trials is
consequently far too summary for a proper adjudication of such
titles. The provision in Rule 7 that a party to an inquiry can appear
through an agent and the power of the Tribunal to exclude lawyers
from the inquiries would reveal to some extent the narrow nature of
the inquiry envisaged by Section 19. (Emphasis supplied)
24. In paragraph 23, it was observed that Rule 11 provides that the
officer holding the inquiry may only make a memorandum of the
substance of what each witness deposes. It is unthinkable that
questions of title could be permitted to be decided by a Tribunal
finally and conclusively without any obligation to record the
evidence fully. It is a matter of common experience that subtle
shades of evidence are often missed in a memorandum containing
merely the substance of the evidence. In paragraph 24, it was
observed that such inquiries could not possibly conclude disputed
titles and that it is not part of the functions of the Authorities under
Section 19 to decide claims which are adverse to the Trust and which are
15/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
made in assertion of titles which are hostile to the Trust. Such titles
cannot be held concluded in violation of the principles of natural justice.
In paragraph 25, it was observed that neither the Act nor the Rules
contemplate that a person who claims adversely to the Trust or who
disputes the right of title of the author of the Trust to the Trust property
must be heard in the inquiry under Section 19. In paragraph 26, the Full
Bench considered Sections 70, 70-A and 72 and observed that the fact
that the Legislature has expressly provided for these remedies against the
decisions rendered under Section 19 is undoubtedly relevant, because
summary decisions are seldom accorded the privilege of being taken that
high. It opined that this circumstance is not sufficient by itself to
extend scope of the inquiry under Section 19 so as to bring within its
sweep, contested questions as regards the title to the trust property.
In paragraph 40, the Full Bench answered the first question in the
negative. (Emphasis supplied)
25. Mr. Gavnekar heavily relied upon paragraphs 65, 66 and 67 of the
judgment of the Apex Court in the case of Church of North India
(supra) wherein it is observed that the Act provides for finality and
conclusiveness of the order passed by the Charity Commissioner in
Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2), and that, Section
19 provides for an inquiry for registration with a view to ascertaining
inter alia the mode of succession to the office of the trustees as also
whether any property is the property of such Trust. It is only when the
statutory authority satisfies itself as regards the genuineness of the Trust
and the properties held by it and entries made in the registers, books, etc.
maintained in terms of Section 17 of the Act in consonance with the
provisions of Section 21 thereof. Such an entry, it will bear repetition to
State, is final and conclusive. Changes can be brought about only in
terms of Section 22 thereof.
16/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
26. On the other hand, Ms Godse heavily relied upon paragraph 78 of
that report and submitted that the provisions of the Act and the scheme
thereof leave no manner of doubt that the Act is a complete code in
itself. The matter, however, would be different if the property is not a
trust property in the eyes of law. The Civil Court's jurisdiction may not
be barred as it gives rise to a jurisdictional question. If a property did
not validly vest in a trust or if a trust itself is not valid in law, the
authorities under the Act will have no jurisdiction to determine the said
question. In paragraph 94 of that report, the Apex Court observed that
the Civil Court will have no jurisdiction in relation to the matter
wherever 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.
27. Mr. Gavnekar relied upon the decision of the learned Single Judge
of this Court in the case of Mahibubi (supra) and submitted that Section
80 of the Act postulates express bar of jurisdiction against the Civil
Court to decide or deal with any question which is by or under the Act
has to be decided or dealt with by any officer or authority under the Act
and which the decision or order of officer or authority has been made
final and conclusive. The Civil Court by itself cannot be permitted to
usurp the exclusive jurisdiction of the Competent Authority in view of
the express bar under Section 80 of the Act on the assumption that the
question of title of the suit property is a complicated one. Even if the
question regarding the title of the suit property was a complicated one,
even then it is for the Competent Authority under the Act to pronounce
in that behalf. In the first place, the decision of the Full Bench of this
Court in the case of Keki Jamadar(supra) was not cited before the learned
Single Judge. Secondly, as observed by the Full Bench in paragraph 16
of the decision in the case of Keki Jamadar (supra) and by the Division
17/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Bench of this Court in the case of Charu K. Mehta Vs. L. K. Mehta
Medical Trust, 2013 (1) Bom.C.R. 23, Section 80 of the Act contains an
express bar to the jurisdiction of the Civil Court, but that is subject to the
satisfaction of the dual conditions. The existence of those conditions
must be strictly established before an ouster of jurisdiction can result.
The correct test in law to apply is (i) whether the controversy which is
sought to be raised before the Civil Court requires an adjudication of a
matter or question which has to be decided or dealt with by an officer or
authority under the Act and (ii) whether such a decision is made final or
conclusive. Thirdly, the Full Bench after exhaustively considering the
scheme of the Act, the nature of the inquiry under Section 19 has
categorically held that the questions of title to the Trust property are
outside the scope of inquiry under Section 19. In view thereof, I find
myself unable to subscribe to the view expressed by the learned Single
Judge in the case of Mahibubi (supra).
28. Mr. Gavnekar further relied upon the decision of the learned
Single Judge of this Court in the case of Bashir Abbas (supra). In
paragraph 6 of that judgment, it was observed that in substance, the
reliefs claimed by the respondents would require the Court to examine as
to whether the trust exists and whether such Trust is a public trust and
whether the suit property is the property of such Trust. The first
Appellate Court clearly misdirected itself by proceeding on the premise
that the Suit was for declaration of title of the suit property. However,
that was not the relief claimed by the respondents in the Suit as filed. On
the other hand, the Suit is purely for declaration that the suit property is
an old Hindu Hemadpanthi temple of Shri Mahadeo and that Hindus
have right to worship the deities in that temple. In paragraph 8, the
learned Single Judge considered the decision of the Full Bench in the
case of Keki Pestonji Jamadar (supra) and observed the question,
18/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
which was considered by the Full Bench, did not arise in the case before
him. I am therefore, of the view that the judgment in the case of Bashir
Abbas (supra) does not advance the case of the petitioner.
29. Mr. Gavnekar also relied upon the decision of the learned Single
Judge of this Court in the case of Lakhanlal Purohit (supra). In the
first place, the decision of the Full Bench of this Court in the case of
Keki Pestonji (supra) was not cited before the learned Single Judge.
Secondly, it was held that though the prayer in the Suit was for the
declaration that the defendants had no right to transfer or execute a sale
deed or hand-over possession of any portion of the suit field, on reading
the plaint as a whole, it was clear that in substance it was the basic
assertions of the plaintiff that the property belongs to the respondent and
therefore, the defendants cannot alienate it. Only if the said question
was decided in favour of the plaintiff that the declaration sought by them
could be granted by the Court. The learned Single Judge observed that
the Suit, therefore, involved the question whether the suit property
belongs to the respondent Trust or not. As the Suit involved the question
that was liable to be determined under Section 79 of the Act, the Suit
was barred by Section 80 of the Act. The learned Single Judge with
respect did not consider satisfaction of two conditions as enunciated by
Full Bench decision in the case of Keki Pestonji Jamadar (supra) as
also ratio laid down therein. I, therefore, find myself unable to agree
with the view expressed by the learned Single Judge.
30. Mr. Gavnekar relied upon the decision of the learned Single Judge
of this Court in the case of Keshav N. Bharti (supra). In that case, the
learned Single Judge considered the decision of the Full Bench of this
Court in the case of Keki Pestonji (supra) as also the decision of the
19/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Apex Court in the case of Church of North India (supra). In paragraph
7, the learned Single Judge observed that the Assistant Charity
Commissioner, Aurangabad held that the suit property is service inam
and declared it as a public trust property. After considering the scheme
of the Act, the learned Single Judge observed in paragraph 15 that the
first declaration sought by the plaintiff to the effect that the order passed
by the Assistant Charity Commissioner on 23.01.1964 is null and void,
ultra vires and not binding on the plaintiff cannot be considered by the
Civil Court. In paragraph 16, the learned Single Judge observed that the
plaintiff prayed for a declaration that the suit property is not the property
of a public or private trust and after considering Sections 79 and 80 held
that the prayer of declaration that the suit property is not a property of a
public or private trust is clearly beyond the jurisdiction of the Civil
Court. I regret my inability to subscribe to the view expressed by the
learned Single Judge in view of the Full Bench decision of this Court in
the case of Keki Pestonji (supra) and Division Bench decision of this
Court in the case of Charu K. Mehta (supra).
31. Finally, Mr. Gavnekar relied upon the decision of the learned
Single Judge of this Court in the case of S. R. Ahmed (supra), and in
particular, paragraph 16 thereof. The learned Single Judge considered
the judgment of the Full Bench in the case of Keki Pestonji Jamadar
(supra) as also the decision of the Apex Court in the case of Church of
North India (supra) and observed that in the case at hand, the property
was entered in the Trust register in 1972 itself and it was sought to be
challenged in 1988. Since the property is entered in the trust register, it
is deemed to be trust property. Had it not been included in the trust
register, the suit would have been tenable. In paragraph 17, the learned
Single Judge observed that since the property is already included in trust
register long back and when the plaintiff himself was one of the
20/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
applicants who applied for entry of such property in trust register, the
only remedy that was available to the plaintiff was one by way of
revision or appeal against the Deputy Charity Commissioner's decision.
He could not file Suit. I find myself unable to agree with this
proposition. As noted earlier, Full Bench in the case of Keki Pestonji
Jamadar (supra) has categorically held that the questions of title of the
trust property are outside the scope of inquiry under Section 19. Thus,
the question of title cannot be adjudicated by an officer or authority
under the Act. If that be so, one of the twin conditions laid down under
Section 80 of the Act is not satisfied and merely because the entries have
been made final and conclusive that by itself does not oust the
jurisdiction of the Civil Court.
32. Mr. Gavnekar submitted that the decisions in the case of (i)
Mahibubi (supra), (ii) Bashir Abbas (supra), (iii) Lakhanlal Purohit
(supra) and (iv) Keshav N. Bharti (supra) are rendered by the learned
Single Judges and if this Court intends to take a different view, the
matter should be referred to a larger Bench. I do not find any merit in
this submission. I have already held that in the case of Keki Pestonji
Jamadar (supra), Full Bench after considering the purpose of the Act,
the procedure prescribed in inquiries under Section 19 and the general
scheme of the Act held that the questions of title to the trust property are
outside the scope of the inquiry under Section 19. It was also held that
the express bar to the jurisdiction of the Civil Court under Section 80 of
the Act is subject to the satisfaction of the twin conditions namely (i)
whether the controversy which is sought to be raised before the Civil
Court requires an adjudication of a matter or question which has to be
decided or dealt with by an officer or authority under the Act while
exercising his power under the Act and (ii) whether such a decision is
made final or conclusive. This has been reiterated by the Division
21/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
Bench of this Court in the case of Charu K. Mehta (supra). In view of
this position, with great respect, the judgments rendered in the case of (i)
Mahibubi (supra), (ii) Lakhanlal Purohit (supra), (iii) Keshav N.
Bharti (supra) and (iv) S. R. Ahmed (supra) do not lay down the
correct proposition of law. Since in my opinion these judgments did not
correctly apply the Full Bench decision of this Court in the case of Keki
Pestonji Jamadar (supra), it is not necessary for me to refer this matter
to the larger Bench. Insofar as the judgment of the learned Single Judge
of this Court in the case Bashir Abbas (supra) is concerned, in
paragraph 8 of that report, the learned Single Judge considered the
decision of the Full Bench in the case of Keki Pestonji Jamadar
(supra) and observed that the question which was considered by the Full
Bench did not arise in the case before him.
33. In the present case, the plaintiffs have not raised any dispute as
regards administration or management of the Trust, deities and temple.
In other words, since the questions raised in the Suit are unconnected
with the administration or possession of the trust property, the Civil
Court will have the jurisdiction to entertain and try the Suit. In the light
of the Full Bench decision of this Court in the case of Keki Pestonji
Jamadar (supra), I have already held that the question of title to the
trust property is outside the scope of enquiry under Section 19 of the
Act. As noted earlier, Section 26 of the Act lays down that any Court of
competent jurisdiction deciding any question relating to any public trust
which by or under the provisions of the Act is not expressly or impliedly
barred from deciding shall cause copy of such decision to be sent to the
Charity Commissioner and the Charity Commissioner shall cause the
entries in the Register kept under Section 17 to be made or amended in
regard to such public trust in accordance with the decision. The entries
so made or amended shall not be altered except in cases where such
22/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
decision has been varied in appeal or revision by Court of competent
jurisdiction. Subject to such alterations, the entries made or amended
shall be final and conclusive. The entries so made in the register under
Section 17 of the Act are subject to the decision of the Court of
competent jurisdiction as per Section 26 of the Act, and are, therefore,
not sacrosanct.
34. One more aspect that requires to be noted is that the plaintiffs
have also prayed for declaration that the sale deed dated 16.08.1996
executed in favour of the defendant No.2 on the basis of the purported
power of attorney of Manjula B. Gurjar is illegal and not binding on the
plaintiffs. In the case of Sopan Sukhdeo Sable Vs. Assistant Charity
Commissioner, (2004) 3 SCC 137, it is observed that merely because
some of the reliefs cannot be granted in the Civil Court, it would not
entail an automatic rejection of the entire plaint. In other words,
assuming that prayer clause (a) cannot be granted by the Civil Court in
view of bar under Sections 79 and 80 of the Act, nonetheless the
Authorities under the Act cannot decide prayer clause (b) and the said
prayer can be decided only by the Civil Court. Consequently, the Civil
Court would not be justified in rejecting the plaint in its entirety. This is
more so when the case of the plaintiffs is that the suit property does not
belong to the Trust and is a private property of the plaintiffs. The case
of the plaintiffs is that no instrument is executed transferring the suit
property in favour of the Trust. In other words, the case of the plaintiffs
is that the property did not validly vest in the Trust and therefore, the
Authorities under the Act will have no jurisdiction to determine the
question of title to the trust property.
35. In view of the foregoing discussion, I do not find any merit in this
Application. The Application fails and the same is dismissed. Rule is
23/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
discharged. However, in the circumstances of the case, there shall be no
order as to costs.
(R. G. KETKAR, J.)
24/24
Minal Parab
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.150 OF 2012
Shree Hanuman Mandir, Alibag, Public Trust
through its Trustees and others … Petitioners
Vs.
Satishchandra Bhalchandra Gurjar and others … Respondents
Mr. C. G. Gavnekar for Petitioners.
Ms Gauri Godse for Respondent Nos.1 and 2.
CORAM : R. G. KETKAR, J.
DATE : 1ST MARCH, 2013
P.C.:
This matter is placed on Board in view of the typographical error
appearing in paragraph 23 as also error arising from accidental slip in
paragraph 29 of the judgment dated 26.02.2013.
2. Insofar as typographical error in paragraph 23 is concerned, instead
of 'paragraph 22', it is wrongly typed as 'paragraph 27'. In view thereof,
figure '27' shall stand substituted by figure '22'.
3. Insofar as error arising from accidental slip in paragraph 29 is
concerned, in that paragraph, I have considered the decision of the learned
Single Judge of this Court in the case of Lakhanlal Vs. M. S. Hanuman
Mandir, 2006(2) Mh.L.J.479. That decision was rendered on 08.02.2006.
While disagreeing with that decision, I have observed as under:
“The learned Single Judge with respect did not consider satisfaction
of two conditions as enunciated by Full Bench decision in the case of
Keki Pestonji Jamadar (supra) as also ratio laid down therein and
Division Bench decision in the case of Charu K. Mehtra (supra).”
4. The decision of the Division Bench of this Court in the case of
Charu K. Mehta Vs. L. K. Mehta Medical Trust, 2013 (1) Bom.C.R. 23 was
rendered on 06.11.2012. In such circumstances, the learned Single Judge
while deciding the case of Lakhanlal (supra) would have no occasion to
25/24
::: Downloaded on - 26/06/2013 21:15:42 :::Bombay High Court
CRA150_12.sxw
consider the decision of the Division Bench of this Court in the case of
Charu K. Mehtra (supra). Thus, there is obvious error arising from
accidental slip and, therefore, I am correcting that error suo motu in
exercise of power under Section 152 of the Code of Civil Procedure, 1908
thereby deleting following words in paragraph 29:
“and Division Bench decision in the case of Charu K. Mehtra (supra).”
(R. G. KETKAR, J.)
26/24
Minal Parab
::: Downloaded on - 26/06/2013 21:15:42 :::
No comments:
Post a Comment