Now the question arises what is the effect of finding given by Assistant Charity Commissioner in Inquiry No. 151/1997 dated 13.01.2006, holding that the suit property is the property of plaintiff Trust (Exh. 190). The questions arise whether after the decision of Assistant Charity Commissioner regarding nature of the suit property as Trust property, whether defendants can prove their title over the suit property or whether the plaintiff Trust will be held as title holder of the suit property.
12. The Full Bench of this Court had occasion to consider the effect of decision given by Charity Commissioner under inquiry under Section 19 (ii) read with Section 22A of the Trust Act in the case of "Keki Pestonji Jamadar and anr. Vs. Kohodadad Merwan Irani and others" reported in (MANU/MH/0125/1973 : 1972 Mh.L.J. 427). While considering the procedure prescribed by the Trust Act for the conduct of inquiry under Section 19, the Full Bench observed that,
"The procedure prescribed by 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 which deals with the manner of inquiries provides that the procedure 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 Section 19 (d) (e), (f) and (g) of the Presidency Small Cause Courts Act, 1882 and under Item 4 of the Second Schedule of the Provincial Small Cause Courts to decide questions of title to immovable property is expressly excluded and the procedure devised for trials under those Acts 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 reveal to some extent the narrow nature of the inquiry envisaged by Section 19.
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 matter of common experience that subtle shades of evidence are often missed in a memorandum containing merely the substance of the evidence".
13. Full Bench of this Court considered Section 26 of the Trust Act under which any Court of competent jurisdiction deciding any question relating to any public trust, which by or under the provisions of Act it is not expressly or impliedly barred from deciding, has to send copy of such decision to the Charity Commissioner and Charity Commissioner has to cause entries in the register to be made or amended in accordance with such decision. This Court held that if a Civil Court upholds the title of third party to the property, which under Section 19 has been found to belong to the trust, the record of the Charity Commissioner has to be amended so as to accord with that decision. The decision of Civil Court will have priority over the decision recorded in the inquiry under Section 19 of the Trust Act. While explaining the above-said judgment of the Full Bench, the Division Bench of this Court, in the case of "Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others" reported in (MANU/MH/0274/1975 : 1976 Mh.L.J. 806), has explained that the true owner is not affected by an inquiry under Section 19 of the Act because the question which has to be decided by the Authorities is a different question operating at different level. The decision of the Authority and decision of the Civil Court operates at different levels and different areas so that there is no conflict between the two.
14. Thus, in view of this legal position though the Assistant Charity Commissioner held that the suit property is the property of Trust, when adverse title is set up in the suit property by the defendants, by inheritance, as legal heirs of Kasturmal Agrawal, the original title holder, the decision of Civil Court regarding title over the suit property will prevail over the decision of Assistant Charity Commissioner. In accordance with the decision of Civil Court, necessary changes in the entries in public trust register will have to be made by Charity Commissioner under Section 26 of the Trust Act.
IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)
First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013
Decided On: 03.12.2018
Shantidevi Vs. Seth Kasturmal Dalsukh Dharmashala and Ors.
Hon'ble Judges/Coram:
Sunil K. Kotwal, J.
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