Writ Petition No.4403 of 2008

4th December, 2008

Petitioner Counsel: S. V. BHUTADA
Respondent Counsel: D. B. PATEL,R. M. BHANGADE

Cases Cited:
Jagatnarayansingh Swarupsingh Chithere Vs. Swarupsingh Education Society, 1980 Mh.L.J. 372 [Para 7,9]
Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap, 1976 Mh.L.J. 806 [Para 7,10]
Mahibubi Abdul Aziz Vs. Sayed Abdul Majid, 2001(3) ALL MR 104=2001(2) Mh.L.J. 512 [Para 7,12]
Dr. J. J. Merchant Vs. Shrinath Chatuvedi, 2002(4) ALL MR 605 (S.C.)=AIR 2002 SC 2931 [Para 7,12]
K. Shamrao Vs. Assistant Charity Commissioner, 2003 ALL MR (Cri) 823 (S.C.)=2003(3) SCC 563 [Para 7]
Keki Pestonji Jamadar Vs. Khondaadad Merwan Irani, 1972 Mh.L.J. (FB) 427 [Para 8,11]
Ramnarayan s/o Manilal Sahu thr. L.Rs. Smt. Kamal Ramnarayan Sahu Vs. State of Maharashtra, 2005(3) ALL MR 397=2005(2) Mh.L.J. 95 [Para 8,9,11]

JUDGMENT

JUDGMENT :- The petitioner, in this petition under Articles 226 and 227 of the Constitution of India, has challenged the order dated 6th August, 2008, passed below application at Exh.149 by respondent No.1 - Assistant Charity Commissioner in Inquiry Case No.221 of 2000, holding that the question of validity or otherwise of deed of declaration of trust dated 26-12-1964 can be examined by Civil Court only.

2. The petitioner is an intervener in the said inquiry proceeding and he moved that application at Exh.149 stating that he was grandson of Rai Saheb Seth Gopikisanji Agrawal and great grandson of Raibahadur Seth Govarhandasji Agrawal, who died intestate on 26-1-1988 at Nagpur. He contended that his grand-father Seth Gopikisanji Agrawal did not earn any thing, nor purchased any property from his own income and he was actually in possession of all properties owned by his father and grand-father. It was his contention that grand-father of Seth Gopikisanji Agrawal was big businessman, who earned a lot and said cash and ancestral properties earned by Shri. Toluramji then devolved upon his son Seth Gowardhandasji Agrawal. Said Seth Gowardhandasji purchased various immovable and movable properties and as he was issueless, he adopted Seth Gopikisanji. Said Seth Gopikisanji ultimately took over the possession of all ancestral and business property of his father and grand-father. Though Seth Gopikisanji developed these properties, all these properties were of joint Hindu Family and therefore, the properties could not have been used for trust purpose by him. It was his case that the alleged deed of declaration alleged to have been executed by Seth Gopikisanji Agrawal sometime in 1964 was, therefore, not correct. He also urged that the change report filed by the reporting trustee Shri. Maheshkumar Agrawal, wherein all ancestral property and undivided properties are shown as properties of the trust, is also, therefore, not correct. According to him, as all properties shown in alleged deed of declaration of trust dated 26-12-1964 are Hindu undivided properties, the deed of declaration itself was illegal and no title to those properties reached the trust. He contended, the trust was created in i964 and there was no intention of late Seth Gopikisanji Agrawal to give undivided properties of Hindu Joint Family in the name of the trust. Said Seth Gopikisanji Agrawal breathed his last on 26-1-1988 and he was not interested in giving the joint family properties to the trust till his death. Thus, properties were not mentioned in Schedule-I. In short, he contended that said Seth Gopikisanji without the consent of other coparcener could not have given any property to public trust and alleged deed of declaration of trust, therefore, was bad in law and joint family properties codd not have been included in Schedule-I.

3. Reporting trustee Shri. Maheshkumar Agrawal stated that Shri. Gopikisanji Agrawal was having his own manganese mines, petrol pump and other business and he earned and purchased various properties from his income and in addition, he also possessed the properties owned by his father and grand-father.

4. It is, therefore, apparent that in view of Exh.149, the Assistant Charity Commissioner was required to consider prayer for declaration that the deed of declaration of trust is null and void. The said declaration was sought on the ground that Seth Gopikisanji Agrawal who executed that document himself lacked capacity or locus to deal with the properties as mentioned therein.

5. In this background, I have heard Advocate Shri. S. V. Bhutada, for petitioner/intervener before Assistant Charity Commissioner, Shri. D. B. Patel learned Assistant Government Pleader for respondent No.1 and Advocate Shri. R. M. Bhangade, for respondent No.2 i.e. reporting trustee.

6. The matter was heard and closed on 27-11-2008. Advocate Shri. Bhutada mentioned the matter in the evening in absence of Advocate Bhangade and made a request that he wanted to cite some important ruling having direct bearing on the controversy. The matter was, therefore, kept on 28-11-2008. On that day, Advocate Bhutada made a statement that he was not citing any additional judgment. In the circumstances, the matter was closed finally for judgment on 28-11-2008.

7. By placing reliance upon provisions of section 79 and section 80 of Bombay Public Trust Act, 1950 (hereinafter referred to as BPT Act), Advocate Bhutada contends that refusal to exercise jurisdiction by Assistant Charity Commissioner is not proper and said authority is competent to adjudicate such types of disputes. He is placing reliance upon the judgments reported at 1980 Mh.L.J. 372, Jagatnarayansingh Swarupsingh Chithere and ors. Vs. Swarupsingh Education Society and another; 1976 Mh.L.J. 806, Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others; 2001(2) Mh.L.J. 512 : [2001(3) ALL MR 104], Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and others; AIR 2002 SC 2931 : [2002(4) ALL MR 605 (S.C.)], Dr. J. J. Merchant and others Vs. Shrinath Chatuvedi and 2003(3) SCC 563 : [2003 ALL MR (Cri) 823 (S.C.)], K. Shamrao and others Vs. Assistant Charity Commissioner.

8. As against this, Advocate Shri. R. M. Bhangade has strongly supported the impugned order. He has contended that various judgments on which reliance has been placed are not relevant in present facts. He seeks to rely upon Full Bench judgment of this Court reported at 1972 Mh.L.J. (FB) 427, Keki Pestonji Jamadar and another Vs. Khondaadad Merwan Irani and others and 2005(2) Mh.L.J. 95 : [2005(3) ALL MR 397], Ramnarayan s/o Manilal Sahu thr. L.Rs. Smt. Kamal Ramnarayan Sahu and others Vs. State of Maharashtra and others.

9. The recent judgment is the Division Bench judgment reported at Ramnarayan s/o Manilal Sahu thr. L.Rs. Smt. Kamal Ramnarayan Sahu and others Vs. State of Maharashtra and others [2005(3) ALL MR 397] (supra). The Division Bench thereafter considering the Full Bench judgment mentioned above, as also Jagatnarayansingh Swarupsingh Chithere and ors. Vs. Swarupsingh Education Society and another (supra), relied upon by Advocate Bhutada, found that legality of acquisition of title by trust cannot gone into in inquiry procedings under section 22 of the BPT Act. The Division Bench considered the Full Bench judgment (supra) in Paragraph 10 and after reproducing portion of paragraph 19 and paragraph 20 therefrom found that it was within the competence of Civil Court to decide the question of title in respect of property acquired by the Trust and it is in that sense that jurisdiction of Civil Court is not barred under section 80 of BPT Act. In said judgment before Division Bench, the question was of title to property which was acquired and hence to the amount of compensation. The Division Bench has also considered 1980's judgment in the case of Jagatnarayansingh (supra) of this Court there and hence it is not necessary for me to reconsider the said judgment again in this matter.

10. Samastha Lad Vanjari Samaj, Ram Mandir Trust Vs. Waman Kisan Sanap and others (supra) is the Division Bench judgment which considers the Full Bench judgment mentioned supra and in paragraph 21, the Division Bench of this Court has observed there that, Full Bench has held that section 79 read with section 80 of BPT Act did not cover the question whether author of a trust was lawful owner of the property of which he had created the trust or had otherwise authority to create the particular trust. In paragraph 23, this Court observed that Full Bench held that jurisdiction of Civil Court was not barred when the question of title of a third person was concerned and Full Bench did not lay down that Assistant Charity Commissioner or the other authorities under BPT Act had no jurisdiction to decide the question whether any particular property was property of a trust or not? These observations are made in the background of the facts that the trust was alleged to be in existence since 19th Century and in the year 1904 one Jairam Motiram donated a sum of Rs.500/- to the trust and from this amount, the property in question i.e. Survey No.197 was obtained from the Government under "Kabuliyat", dated 15th March, 1904. The dispute arose because though that property was obtained for trust, it was obtained in the name of one Narayan Wanjari as he was the Chief Trustee of the Trust at that time. In their application under section 22-A of B.P. Act, trustees claimed that Land Survey No.197 was always in possession of the Trust and that trust had been enjoying usufruct thereof. The case was, after the death of said Narayan Wanjari, names of his heirs came to be entered in revenue records erroneously, even though the property was cultivated all along on behalf of the trust.

11. The perusal of Full Bench judgment in case of Keki Pistonji Jamadar (supra), particularly paragraphs 18 and 20 show that the very question as found by Hon'ble Full Bench required decision of Deputy or Assistant Charity Commissioner on the issue whether particular properties are properties of trust or not. The Hon'ble Full Bench found that this clause is couched in words of doubtful import. In paragraph 20, the arguments of contesting respondent are mentioned and it appears that respondent there were asking that question whether the author of the trust had title to the property conveyed to the trust is outside the scope of inquiry under section 19 and therefore, the jurisdiction of Civil Court to decide or deal with that question is not barred. The Full Bench thereafter observed that having considered the matter in all aspects presented before it, it was of the opinion that this contention was right. The Hon'ble Full Bench states, "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 his anterior or superior title would be concluded by the decision in that inquiry and the general scheme of the Act, all tend to show that question of title to trust property are outside the scope of inquiry under section 19." The later Division Bench of this Court in Ramnarayan s/o Manilal Sahu thr. L.Rs. Smt. Kamal Ramnarayan Sahu and others Vs. State of Maharashtra and others (supra), has in paragraph 11 found that procedure prescribed by BPT Act for conduct of inquiry under section 19 is wholly unsuited for proper and effective adjudication for disputed title to trust property. It was found by the Division Bench of this Court in this judgment, that the order of authorities under BPT Act, as well interim order of District Judge impugned before it were unsustainable and in paragraph 12, the Division Bench of this Court observed that, "it is in this context, it has to be said that question of title gone into by authorities was not within the competence of the inquiry conducted by the authorities in respect of the Change Report." When the scope of inquiry under section 19 is restricted, I find that question whether said Seth Gopikisanji himself had the title and competence to deal with the properties alleged to be of Joint Hindu Family property, is clearly beyond the scope of scrutiny and inquiry under the provisions of BPT Act.

12. The judgments in case of Dr. J. J. Merchant (supra) and K. Shamrao (supra) of Hon'ble Apex Court cited by Advocate Shri. Bhutada are in relation to provisions of Consumer Protection Act or Contempt of Courts Act, 1971. The Hon'ble Apex Court has held that complicated questions can also be gone into by authorities functioning under Consumer Protection Act or by Assistant Charity Commissioner functioning under the Bombay Public Trust Act. Hewever, that does not mean that issues which do not fall within their jurisdiction can also be gone into or considered by such authorities. In Mahibubi Abdul Majid, 2001(3) ALL MR 104 (supra) Civil Court had entertained suit after authorities under BPT Act held that property was not trust property and said adjudication attained finality. The judgments, therefore, are not relevant for deciding the controversy in the matter.

13. Thus, I do not find any case made out warranting interference in the writ jurisdiction in the matter. The writ petition is accordingly dismissed. No order as to costs.

Petition dismissed.