First Appeal No.298 of 1993

20th October, 2004

Petitioner Counsel: Shri. MILIND PATIL,Shri. M. B. SABNIS
Respondent Counsel: Shri. A. S. BAJAJ,Shri. N. N. JADHAV, AGP

Cases Cited:
Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinarayan Kalwar, 1998(1) ALL MR 393=AIR 1998 Bombay 131 [Para 4]

JUDGMENT

JUDGMENT :- This appeal is directed against the judgment and order dated 18th June, 1993 passed by the learned Additional District Judge, Jalna on an application under section 72 of the Bombay Public Trusts Act, 1950 (for short, the Act).

2. By a deed of gift dated 6-8-1964 Shriram Govardhandas and others (who were claiming under late Dwarkadas) gifted unto Bansilal Dwarkadas and other the property bearing House No.57 (old) (58 new) upon a trust for the objects mentioned in the said gift deed. The trustees thereafter made an application for registration of a trust and the trust came to be registered in the name of Shri. Agrasen Bhawan Trust, Jalna under registration number A-1220 (Jalna). After appointment of the new trustees, change Report bearing No.12 of 1984 was filed, which was accepted by the Assistant Charity Commissioner who felt that the trust did not have rules and, therefore, it was expedient to frame a scheme under Section 50-A of the Act. The Trustees were, therefore, directed to submit a draft scheme. Some members of Agrawal community objected to the scheme submitted by the trustees and submitted another scheme in respect of the trust. After hearing all concerned, the Assistant Charity Commissioner came to the conclusion that it was necessary to frame a scheme and referred the matter to the Joint Charity Commissioner for framing of an appropriate scheme under section 50-A of the Act.

3. After notices to all concerned, the Joint Charity Commissioner held an enquiry as to the necessity of framing of a scheme under section 50-A of the Act. In the enquiry before the Joint Charity Commissioner, the existing trustees and the other persons of Agrawal community agreed that it was expedient and necessary to frame a scheme for proper administration of the trust. Two draft schemes were submitted before the Joint Charity Commissioner; one by the existing trustees and the other by the members of Agrawal community. The Joint Charity Commissioner, by his judgment and order dated 29-8-2001 framed a scheme substantially accepting the scheme submitted by the members of Agrawal community. Being aggrieved by the said judgment and order of the Joint Charity Commissioner, the present appellant who claims to be the President of Agrawal Bhawan Trust, filed an application under section 72 of the Act before the District Court, Jalna for setting aside the order passed by the Joint Charity Commissioner and suggested several modifications in the scheme. By the judgment and order dated 18th June, 1993, the learned Additional District Judge accepted some of the modifications suggested by the appellant in the draft scheme but rejected the other contentions. The learned Additional District Judge confirmed the scheme framed by the Joint Charity Commissioner. That judgment is impugned in this appeal.

4. The appeal has been filed and numbered as a First Appeal being an appeal as per the practice prevailing in this Court till the year 1997-98. However, in Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinarayan Kalwar (AIR 1998 Bombay 131 : [1998(1) ALL MR 393]), Division Bench of this Court held that an appeal against the order of the District Court passed under section 72 of the Act is in the nature of and in substance a second appeal and is subject to the same restrictions and limitations imposed under section 100 of the Code of Civil Procedure. In view of the binding judgment of the Division Bench of this Court, learned counsel for the parties states that the appeal may be treated as a second appeal and would also be subject to the same limitations as are imposed under section 100 of the Code of Civil Procedure for entertaining a second appeal.

5. The learned counsel for the appellant submits that following substantial points of law arise for consideration in this appeal:

1. Whether the learned Additional District Judge erred in not setting aside the order of the Joint Charity Commission as it was not proved that it was necessary to frame the scheme for the proper management and administration of the trust and as the objects of the scheme, as framed by the Joint Charity Commissioner were contrary to the objects mentioned in the gift deed dated 6-8-1964 creating the trust ?

2. Whether the scheme framed by the learned Joint Charity Commissioner is not in conformity with the objects in the original deed of gift or is otherwise erroneous or improper and needs any modification?

6. Re. Point No.1 :

Neither any member of the Agrawal community nor anybody else had urged before the Joint Charity Commissioner that it was not necessary to frame a scheme under section 50-A of the Act. I have perused the copy of the gift deed which is in vernacular language and annexed at Exh.A to the appeal memo. Under the said gift deed, the property bearing House No.57 (old) and 58 (new) was gifted to Bansilal Dwarkadas and others upon the trust for religious and social purposes and construction of a building for the benefit of Kadrabad Agrawal community. The deed does not mention in what manner the construction is to be made, in what manner or purposes the building is to be used for the benefit of the community. It does not mention about the membership of the trust and/or the manner for appointment of the trustees. No rules for functioning/management of the trust are framed nor is any power given to the trustees to frame the rules to regulate the conduct of the trust. The gift deed is absolutely silent as to the manner of ordinary management of the trust and the use of the trust property. Therefore, a bare reading of the gift deed would make it clear that it was necessary to make provisions for the management of the trust and attaining of the objects contained in the original gift deed. In fact, when the Assistant Charity Commissioner referred the matter to the Joint Charity Commissioner for framing of a scheme, all the parties including the present appellant, agreed that it was necessary to frame a scheme. In its judgment dated 29-8-1991, the Joint Charity Commissioner has observed as follows :

"The trustees on record submitted a draft scheme to which some of the members of Agrawal Samaj objected mainly on the ground of the trusteeship of the said trust. But it was not disputed that it is expedient and necessary to settle a scheme for the proper management and administration of the said trust. The draft scheme, therefore, came to be discussed in the presence of both the parties."

It thus appears that there was not dispute between the parties that it was necessary and expedient to frame a scheme for the proper administration and management of the trust. The existing board of trustees of which the present appellant claims to be the president, itself had submitted a draft scheme before the Joint Charity Commissioner. The other members of the Agrawal community had also submitted another draft scheme. Thus what was being discussed was what should be the contents of the scheme. The necessity and expediency of framing of a scheme was never doubted before the Joint Charity Commissioner. There is, therefore, no merit in the contention of the learned counsel for the appellant that there is no need and expediency to frame a scheme under section 50-A of the Act.

7. Re. Point No.2 :

As regards the contention that the scheme changes the original objects under the gift deed, it would be appropriate to refer to the relevant part of the original gift deed, translation of which reads thus :

"Deceased Dwarkadas desires that the said house should be used for the social and religious purpose of Agrawal community and for that purpose, a building known as Agrawal Bhawan should be constructed thereon. However, before he could do so, he died and, therefore, in order to fulfill his desire and to give solace to his soul, we are executing this gift deed out of our free will for the benefit of Kadrabad Agrawal community."

The gift deed, which is executed by the heirs/persons claiming through Dwarkadas, states that Dwarkadas had a desire to use the property for social as well as religious purposes. The draft scheme also contemplates use of the property for social as well as religious purposes. There is, therefore, no merit in the contention of the learned counsel for the applicant that deceased Dwarkadas had no desire to use the properly for religious purposes and desired to properly to be used. There is also no merit is the contention that the scheme, so far as it makes the provisions for both social and religious purposes, is contrary to the desire of the original donors.

8. Thus both the objections raised by the learned counsel for the appellant that there was no necessity of framing of a scheme and that the proposed scheme changes or alters the purpose of the original gift deed, have no merit. No other substantial question of law arises in this appeal. Hence there is no merit in the appeal, which is hereby dismissed.

9. In the facts and circumstances of the case, the parties shall bear and pay their own costs of this appeal.

Appeal dismissed.