2011(3) ALL MR 397
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
R.M. BORDE, J.
Shersingh S/O. Hirasingh Fauji Vs. Sardar Jeewansingh S/O. Ayasingh Sahoo (Through Lrs.) & Ors.
Second Appeal No.751 of 2009,Second Appeal No.752 of 2009
7th May, 2010
Petitioner Counsel: Mr. A. G. GODHAMGAONKAR
Respondent Counsel: Mr. RAJENDRA DESHMUKH
(A) Bombay Public Trusts Act (1950) , S.72 - Hyderabad Registration of Societies Act, 1350 Fasli - Registration of trust - There can be no trust without property - There can be no trust without obligation - Mere fact that society carries on propaganda, issues pamphlets and spends money out of the subscriptions or grants received by it cannot convert a private society into a public trust. (Para 21)
(B) Bombay Public Trusts Act (1950) , S.72 - Decision rendered under S.72 by District Judge - Decision is the judgment of the Appellate Court - The nature of inquiry in the proceedings under S.72 of the Act is akin to an inquiry in first appeal. 2007(5) Bom.C.R. 195 - Ref. to. (Para 25)
D. R. Pradhan Vs. Bombay State Federation of Goshalas and Panjrapoles, 1958 BLR 894 [Para 21]
Omprakash Gulabchand Partani Vs. Charity Commissioner, 2008(1) ALL MR 228=2007(5) Bom.C.R. 195 [Para 25]
Santosh Hazari Vs. Purushottam Tiwari, (2001)3 SCC 179 [Para 26]
A Society, having membership amongst persons from Sikh community with religious and charitable object, came to be registered in the name and style "Sachkhanda Huzuri Khalsa Diwan, Nanded" (herein after referred to as "Diwan") as per the provisions of Hyderabad Registration of Societies Act, 1350 Fasli. The Act for administration of Nanded Sikh Gurudwara, namely "Shri Huzur Apchal Nagar Sahib" came to be passed in the year 1956. A board for administration of Sikh Gurudwara came to be incorporated under the provisions of Nanded Sikh Gurudwara Act. Four members belonging to Diwan are required to be taken on board constituted under the provisions of Nanded Gurudwara Act. So far as Diwan is concerned, although it was registered under the provisions of Hyderabad Registration of Societies Act, it was not registered as Public Trust under the provisions of Bombay Public Trusts Act, 1950 and as such, an application came to be tendered by one Jeevansingh Ayasingh for purposes of registration of Diwan as a Trust. The application was numbered as Inquiry No.950 of 1981. On consideration of application, the Trust has been directed to be registered since January 11, 1982. A list of 28 members' Working Committee was submitted along with application by Jeevansingh claiming them to be the trustees of the Diwan. A Notification, in that regard, was published on 7th May, 1984 in Government Gazette as regards constitution of the board. Four members of Diwan were adopted as members of the board constituted under the provisions of Nanded Gurudwara Act. One objection petition came to be lodged by Shersingh Hirasingh which was registered as Revision Application No.18/1984 raising exception to the order of registration. It was contended that one Bhujangsingh was Pradhan of Diwan and was the governing head of Diwan. According to Shersing, applicant Jeevansingh and others do not constitute a legally elected working body of Diwan and as such they had no authority to nominate anybody on the board. It was claimed that Revision Petitioner i.e. Shersingh and others are entitled for seeking registration of the Trust.
3. On 14th January, 1985, the Joint Charity Commissioner allowed Revision Applications and remanded back the inquiry to the Assistant Charity Commissioner with a direction to issue public notice as contemplated by Rule 7-A of Bombay Public Trusts Act and after extending fresh opportunity of hearing to the parties concerned, proceed to decide the matter. So far as finding on the issue, as to whether the Trust exists and whether such Trust is a Public Trust, came to be kept intact meaning thereby the finding in respect of existence of the Trust and Trust being a public trust has attained finality. Applicant Jeevansingh and others preferred appeal against said order to the District Court, which was numbered as RJE 14 of 1985. The appeal came to be dismissed on 16.11.2000. Against said order, a writ petition was preferred to this Court, however, this Court has also not caused interference and disposed of the petition on 27th February, 2001.
4. After remittance of the matter back to the Assistant Charity Commissioner, notices were published, as directed and objections were received. There were objections by Shersingh at Exhibit-65. Objections were also received from Rachpalsingh Sahu, Mohansingh Bhujan Singh, Indrajitsingh Galliwale and those were marked as Exhibits-68, 70 and 72, respectively. One Mohansingh Madadgar and others also filed objection, which was marked as Exhibit-127. It transpires that during pendency of proceedings, applicant Jeevansingh died and Gurucharainsingh was permitted to prosecute the matter as an applicant. He claimed himself to be the Pradhan of Diwan. As stated earlier, objection petitioner Shersingh had also presented separate application for registration of Diwan, being Inquiry No.226/2001. According to Shersingh, applicant Jeevansingh had no locus standi to submit application for registration of Diwan. According to him, in the year 1979, one Bhujangsingh was the Pradhan of Diwan and Amarsingh Bungai was the Secretary. The office bearers of Diwan held election in the year 1979. One Sundersingh was appointed as Election Officer to conduct elections wherein Bhujangsingh was elected as Pradhan. However, Change Report, to that effect, was not presented. But the fact remains that Bhujangsingh was Pradhan of Diwan. The objection petitioner, as such, presented a separate application for registration of the Trust. There were also objections raised by Rajpalsingh, Mohansingh Madadgar and others.
5. Applicant Gurucharansingh filed his Say to all the objections at Exhibit-101. According to him, first legal working committee was formed under Presidentship of S. Bedi Jaisingh. Said working committee was in the office since 1956 to 1958. Thereafter functions of Diwan were administered under the Vice Presidentship of Amarsingh Sahu until year 1978. According to applicant, although Bhujangsingh and Amarsingh were never members of Diwan, they pretended constitution of working committee in the year 1962, however, said Committee was never managing the affairs of Diwan. It is contended that in the year 1978, the Joint Secretary, on demise of Chandasingh, who was Secretary of Diwan, convened the meeting of general committee on April 13, 1978 and in that meeting, an ad-hoc committee was formed for holding elections to the working committee. A meeting was convened on July 4, 1978, wherein it was decided to call meeting of general body on 10th August, 1978. Notice of the meeting was duly published in the news papers and copies were affixed on Gurudwara gate. It is contended, on 10th August, 1978, meeting of general committee was held in Gurudwara premises under the Presidentship of Shri. Guru Granth Sahib. In the meeting Jeevansingh was elected as Pradhan of Diwan. Thus, applicant contends that considering sequence of events stated above, the application tendered by him for registration of trust be considered and Committee formed under the Presidentship of Jeevansingh be declared as trustees of Diwan.
6. On consideration of rival contentions raised by parties, the Assistant Charity Commissioner framed issues. Answer to the issue, as to whether property shown in the application is the property of trust and what is the estimated value of movable and immovable property, is answered in negative by the Assistant Charity Commissioner. The issue, as to what is the gross average annual income and expenditure of the trust is answered as Nil. The Assistant Charity Commissioner also held that there is no scheme relating to the Trust. So far as particulars of title deeds pertaining to the Trust property and names of the trustees in possession thereof, is also answered in negative by the Assistant Charity Commissioner. The Assistant Charity Commissioner, as such, while allowing the application partly, for registration tendered by Jeevansingh, directed return of Registration Certificate. It was also directed by the Assistant Charity Commissioner that same be handed over to the new trustees, if appointed as provided under Section 47 of the Bombay Public Trusts Act, 1950. In the judgment, it is observed by the Assistant Charity Commissioner that applicant Jeevansingh and others cannot claim themselves to be trustees merely because they have submitted application for registration of the trust. The case put up by Shersingh also did not find favour with the Assistant Charity Commissioner. The Assistant Charity Commissioner, thus, held that posts of trustees of Diwan are vacant. The property in possession of applicants i.e. Jeevansingh and others and objection petitioners claiming to be trustees of Diwan is their own property. The Assistant Charity Commissioner held that Diwan has no property at all. It is also further observed by the Assistant Charity Commissioner that as the Trust had already been registered, new application for registration of the Trust does not require consideration.
7. The order passed by Assistant Charity Commissioner was matter of challenge in appeals presented before the Joint Charity Commissioner, Aurangabad Region, Aurangabad. The appeal preferred by applicant Jeevansingh and others was registered as Inquiry No.17/2006, whereas appeal presented by Shersingh and others is registered as Inquiry Application No.23/2006. In both the appeals, findings recorded by the Assistant Charity Commissioner in respect of Issue Nos.2, 4, 7 and 11 to 14 are subjected to challenge by appellants. The main issues, those are contested by both the parties, are as regards names and addresses of the trustees and Managers of the trust, who are entitled to represent the Diwan, the issue as regards property belonging to the trust and with whom the property vests, so also matters relating to average annual income and expenditure of the trust, particulars of encumbrances, if any, on the trust property, particulars of claim, if any, relating to the trust and particulars of title deeds pertaining to the trust property and names of the trustees in possession thereof.
8. The issue that is debated is as to who are the trustees of Diwan and who are legally entitled to represent the Diwan. The issue as regards property belonging to Diwan assumes importance for the reason that person in possession of the property belonging to the trust can be considered as trustee of the trust and as such, the question relating to vesting of the property in trustee assumes importance.
9. The appellate Court, on consideration of rival contentions raised by the parties. Recorded a finding that the property shown in the application tendered by Jeevansingh is movable property of the Trust and estimated value thereof is Rs.2,000/-. That, so far as names and addresses of trustees and managers of the Trust is concerned, the Joint Charity Commissioner held that Bhujangsingh Ratansingh and 27 others, whose names are submitted along letter dated 03.10.1962 in Inquiry File No.22/1951 and whoever are alive on the date of application Inquiry No.950/1981, are the trustees of the Trust. The Joint Charity Commissioner also held that gross average annual income and expenditure is Rs.6,000/-. While allowing the appeal, the Joint Charity Commissioner set aside findings on Points No.2, 4, 7, 12 and 13 recorded by the Assistant Charity Commissioner. Appeal No.23/2006, presented by Shersingh and others, came to be dismissed, whereas, prayers made in Appeal No.17/2006 in respect of conferment of status of trusteeship on them has also been turned down by the Joint Charity Commissioner. The Joint Charity Commissioner directed inquiry as contemplated by Section 41-A of Bombay Public Trusts Act for better management and administration of Diwan as a public trust. It was further observed in paragraph 36 of the judgment that since there is no clear and concrete material and evidence regarding actual membership of Diwan, a detailed direction would be necessary for appointing an Election Officer giving them responsibility to prepare a list of valid members and further directing them to conduct elections afresh for electing Pradhan of Diwan. The Pradhan is required to take steps for constituting a working committee and thereafter for preparing more suitable and perfect scheme for the Diwan by suggesting proper and appropriate amendment.
10. The order passed by Joint Charity Commissioner in appeal was subjected to challenge in Misc. RJE No.38/2007 by Sardar Jeevansingh through his L.R. Gurucharansingh, whereas, said order has also been challenged by Shersingh Hirasingh in Misc. RJE No.68/2007. Learned District Judge, while dealing with applications, has recorded a finding on issue, as to whether names of trustees, who were shown in the original application in Inquiry No.950/1981 submitted by Jeevansingh are/were the trustees of the trust, in the affirmative. It has also been recorded by District Court that appellant in RJE No.38/2007 i.e. Jeevansingh through L.R. Gurucharansingh be held as Pradhan of the trust and rest of the persons as trustees of the trust. The order passed by Joint Charity Commissioner was accordingly directed to be substituted by directions, findings and observations made by District Court. The orders passed by District Court in appeals presented by respective parties are subjected to challenge at the instance of Shersingh and others in both these appeals.
11. On consideration of reasons recorded by learned District Judge while dealing with the appeals and on consideration of contentions raised by both the parties, substantial question of law, that arises for consideration, is :
"Whether judgment and order passed by learned District Judge is in conformity with principles laid down by the Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari, reported in (2001)3 SCC 179."
Admit. Appeals are taken up for final hearing forthwith by consent of learned Counsel for respective parties.
12. Learned Counsel appearing for appellant raised issue in respect of maintainability of fresh application at the instance of applicants Sardar Jeevansingh and others and questioned their locus standi to present the application. It is contended that since it is concluded in the first round of litigation that Diwan is public trust, there was no occasion for presentation of application at the instance of original applicants/respondents herein seeking fresh registration. It is contended that, as contemplated by Section 18 of the Act, it is duty of the trustees of public trust to make an application for registration of public trust. Since the respondents/applicants cannot be termed as trustees of the Trust, the application tendered at their behest is not entertainable. It is also contended that in view of Section 18(4) of the Act, the application has also to be tendered within three months from the date of application of the Act in case of a public trust already exists; and in case of a public trust created after enforcement of the Act, within three months of its creation. It is, thus, contended that application at belated stage is not entertainable. It is also contended that the inquiry, as contemplated by Section 19 is for the purpose as to whether public trust exists and whether trust is a public trust and as to whether any property is the property of such trust.
13. According to learned Counsel appearing for the appellant, application tendered by respondents, who cannot be termed as trustees of the trust, is not entertainable and secondly, application, being tendered much after creation of the trust, same is not entertainable. It is contended that the application is treated as a Change Report under Section 22 of the Act by the authority and the orders are passed thereon, which is not the scope of instant inquiry. It is also contended by appellants that appellants and others are true representatives of the trust. Appellant Shersingh is, thus, entitled to make an application seeking registration, as appellants and others only can claim themselves to be trustees of the Trust. The District Court has committed an error in recognizing respondents and others as persons entitled to represent the Trust. According to appellants, Jeevansingh or his legal representative cannot be held as Pradhan of Diwan and other persons as trustees of the Trust and the finding recorded by District Court, in that behalf, is perverse. It is contended that there are absolutely no reasons recorded while reversing the finding by District Court. The Joint Charity Commissioner had set out detailed reasons while rejecting case put up by respondents Jeevansingh and others and appellate Court has not at all considered the circumstances which persuaded the Joint Charity Commissioner to hold against the case put up by respondents Jeevansingh and others.
14. While criticizing the judgment, it is pointed out that appellate Court has devoted almost all the paragraphs commencing from paragraph no.44 up to paragraph no.76 only in recording details of the proceedings. Learned District Judge has quoted extensively from documents and record presented by parties to the proceedings as well as extracts from judgments and orders passed by Joint Charity Commissioner and Assistant Charity Commissioner. In paragraph no.73 of the judgment, learned District Judge has recorded that he does not agree with the view adopted by Joint Charity Commissioner and further proceeded to record that appellant Gurucharansingh, who stepped into shoes of Jeevansingh, is the trustee of Trust i.e. Pradhan of Diwan and names of the persons, whose names are shown in original application in Inquiry No.950/1981, are the trustees of the trust. However, surprisingly, in paragraph no.73 of the judgment, there are absolutely no reasons noted for reversing the finding recorded by Joint Charity Commissioner or Assistant Charity Commissioner. It is, thus, contended that judgment of District Court is not a judgment in the eye of law, as there are no reasons set out while reversing findings recorded by authorities below.
15. Learned Counsel appearing for respondents has, however, supported judgment delivered by District Court. It is vehemently contended by learned Counsel appearing for respondents that movable property belonging to the trust is in the custody of respondents. They have domain over the property, which is held to be the property belonging to the Trust and as such, they are trustees of Diwan. It is contended that finding recorded by Joint Charity Commissioner to the effect that movable property belonging to the trust is in the custody of applicant Jeevansingh, is required to be taken into account and necessary inference is required to be drawn that the persons having domain over the property are trustees of the trust. It is, thus, contended that appeal presented by appellant does not merit any consideration and same is liable to be dismissed.
16. At the outset, it is to be taken note that the finding recorded earlier as regards existence of the trust and further as to whether such trust is a public trust, has attained finality. Thus there can be no dual opinion as regards existence of Diwan as a Trust and Diwan being a public trust. "Public trust" is defined in sub-section (13) of Section 2 of the Act, thus :
"(13) "public trust" means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860;
"trustee" is defined in sub-section (18) of Section 12, thus :
(18) "trustee" means a person in whom either alone or in association with other persons, the trust property is vested includes a manager :
Other relevant definitions for consideration of the matter include "manager" as defined in sub-section (8) of section 2, which read thus :
(8) "manager" means any person (other than a trustee) who for the time being either alone or in association with some other person or persons administers the trust property of any public trust and includes-
(a) in the case of a math, the head of such math;
(b) in the case of a wakf, a mutawalli of such wakf;
(c) in the case of a society registered under the Societies Registration Act, 1860, its governing body, whether or not the property of the society is vested in a trustee;and "person having interest" is defined in sub-section (1) of section 2, thus :
(10) "person having interest" includes-
(a) in the case of a temple, person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof,
(b) in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs,
(c) in the case of a wakf, a person who is entitled to receive any pecuniary or other benefit from the wakf and includes a person who has right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, maqbara or other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf;
(d) in the case of a society registered under the Societies Registration Act, 1860, any member of such society, and
(e) in the case of any other public trust, any trustee or beneficiary.
17. Referring to sub-section (10) of section 2, It is contended that any person having interest can tender an application for registration of a public trust. It is contended that Diwan was earlier registered under the provisions of Hyderabad Registration of Societies Act, 1350 Fasli and in view of provisions of Societies Registration Act, Diwan is deemed to be registered as a society. Sub-section (13) of section 2 of Bombay Public Trusts Act, which defines "public trust", includes, a society formed either for religious or charitable purpose or for both and registered under Societies Registration Act, 1960. Thus, Diwan, being a society registered under the provisions of Hyderabad Societies Registration Act, 1350 Fasli, is deemed to be a society, as defined under the provisions of Societies Registration Act and by virtue of provisions of section 2 of Bombay Public Trusts Act, same is also a public trust.
18. So far as other objection regarding tendering application for purposes of registration of the trust is concerned, although it is contended by learned Counsel appearing for appellant that the application needs to be tendered by trustees of public trust and within the period prescribed under sub-section (4) of Section 18, provisions of Section 19 of the Act, also cannot be lost sight of. The Charity authorities can enter upon an inquiry in respect of registration either on receipt of application under Section 18 or upon an application made by any person having interest in the public trust or on his own motion. Thus, the application presented by applicants i.e. Jeevansingh and others, even if objections raised by appellant Shersingh and others is taken into account to the effect that their status being doubtful, the application cannot be entertained, still the fact remains that a person having interest in the public trust can maintain an application, so also, authorities on their own motion can embark upon an inquiry. Thus, there cannot be any impediment as contended by learned Counsel for appellants for entertaining application tendered by applicants. Another aspect also cannot be lost sight of is that the appellants also had tendered an application seeking registration of the trust at their instance claiming themselves to be trustees of the trust. Thus, there is no substance in the contention that application for registration at the instance of Respondent./applicants is not entertainable and only application tendered by appellants themselves, who claim to be trustees, ought to be entertained. Section 19 of the Bombay Public Trusts Act empowers the trust authorities to embark upon to initiate inquiry on their own in respect of registration of the trust.
19. While inquiring into the matter the scope of inquiry includes to ascertain whether there is any property belonging to the trust and names and addresses of the trustees and managers of the trust. The inquiry as regards property belonging to the trust assumes importance. In view of the definition of "trustee of the trust", the trustee is a person in whom either alone or in association with other persons, the trust property is vested and includes a Manager. Learned Counsel appearing for respondents has led much stress on this aspect and contended that there is a finding recorded by the Joint Charity Commissioner to the effect that the property belonging to the trust vests in the respondents and as such they are entitled to be declared as trustees of the trust.
20. The Assistant Charity Commissioner, while holding inquiry, has observed that there is no property belonging to Diwan and whatever the property as claimed by the parties to be the property belonging to the trust is, in fact, their own property. The finding recorded by the Assistant Charity Commissioner in that regard was challenged by both the parties by presenting an appeal to the Joint Charity Commissioner and the Joint Charity Commissioner has specifically recorded a finding that the trust possesses movable property in the form of furniture worth Rs.2,000/- and furniture worth Rs.2,000/- vests in the trustees and is in custody of applicant Jeevansingh Aayasingh. It is contended by respondents that having recorded a finding on Issue No.6 to the effect that the property belonging to the trust is in the custody of Jeevansingh, it was not open for the Joint Charity Commissioner to record that they do not represent the trust. It is contended, placing reliance on the definition of "trustee" in sub-section (18) of Section 2 of the Act, that the person with whom trust property vests is a trustee. It is also contended by respondents that said finding recorded by the Joint Charity Commissioner is not disturbed by District Judge.
21. Considering submissions advanced by learned Counsel for respective parties, the main question, that is required to be dealt with in the matter, is as to whether the group represented by appellant or respondents are entitled to claim themselves to be the trustees of Diwan. There cannot be any dual opinion in respect of proposition that a public trust is supposed to hold the property and trustee is a person in whom alone or in association with other persons, trust property vests. Reliance can be placed on the judgment in the matter of D. R. Pradhan Vs. The Bombay State Federation of Goshalas and Panjrapoles, reported in 1958 BLR 894. It is laid down by Division Bench of this Court, thus :
"It is not sufficient that a society should have as its object and its purpose an object of general public utility to constitute it a public trust within the meaning of the Bombay Public Trusts Act, 1950. It is equally important that there must be a trust for a charitable purpose. There must be property held by the society to which an obligation must be attached that the property must be held for a charitable purpose."
Thus, on reading the judgment, it transpires that two conditions must be satisfied that there must be a property belonging to the trust and if the society receives grants or donations, it has to be established that there is obligation upon the society to spend these donations or grants for public charitable purpose. The trustee must be under an obligation to apply either the corpus or the income of the trust fund to a charitable object, in which case the trust is a public charitable trust. There can be no trust without property, there can be no trust without obligation attaching to the property and the mere fact that the society carries on propaganda, issues pamphlets and spends money out of the subscriptions or grants received by it cannot convert a private society into a public trust. The issue, that was required to be dealt with, was as to whether the public trust possess any property or the funds and whether there is an obligation imposed for application of either corpus or income of the trust for any charitable purpose. This question is required to be addressed while dealing with an inquiry and ascertaining as to whether the trustees are the persons who are discharging functions of the trust and whether the persons, who claim themselves to be the trustees, satisfy requirements laid down under the Act.
22. On perusal of the judgment of District Court, it does not appear that the issue has been dealt with in its proper perspective. The question arising in the matter in respect of domain over the property as well as application of funds of the trust assume importance for embarking upon inquiry in respect of claim raised by rival parties of (they) being trustees of Diwan. The District Judge, in fact, ought to have considered these aspects while deciding issues involved in the matter.
23. Another aspect, which requires serious consideration is that learned District Judge has recorded a finding that election dated 10.08.1978 is valid and proper and Jeevansingh Sahu had been elected as President of Trust and body of the persons i.e. Bhujangsingh and later on Shersingh is not in fact representative body of persons who could be recognised as trustees. Learned District Judge has accepted names of the trustees who were shown in original application in Inquiry No.950/1981 as trustees of the Trust. While recording a finding in that regard, there are absolutely no reasons recorded in support of the finding as stated above. Paragraphs No.44 to 72 are devoted for merely reproducing the orders issued by Trust authorities in various proceedings and for recording history of the litigation. Learned District Judge has reproduced extensively from the annexures filed along with record. There are absolutely no reasons recorded in the judgment. The judgment recorded by learned District Judge, therefore, cannot be considered as a proper judgment, as contemplated by Order 41, Rule 31 of the Code of Civil Procedure. The burden is heavy on the appellate Court while reversing the findings recorded by lower court or authorities. The appellate forum is supposed to record reasons for his disagreement with the views expressed by lower Courts or the authorities. Learned District Judge ought to have recorded reasons for holding that the body of persons elected on 10th August, 1978 under the Chairmanship of Jeevansingh is a validly constituted committee and as such is entitled to be recognised as trustees of the trust. The Joint Charity Commissioner, while dealing with the issue, has found that the election held for electing Jeevansingh as President is not in conformity with the rules and regulations. It is specifically observed by the Joint Charity Commissioner that in the absence of any specific provision in rules and regulations of Diwan in constituting an ad-hoc committee comprising of Jeevansingh and his successor Gurucharansingh and Gulabsingh and thereafter the ad hoc committee convening meeting of General Committee and electing the President is without any legal foundation. It is specifically observed by the Joint Charity Commissioner that rules and regulations do not provide for appointment of ad hoc committee for holding elections. The Joint Charity Commissioner, therefore, proceeded to record a finding that contention of the applicant as regards election of Jeevansingh and his appointment as President on 10.08.1978 and 11.08.1978 does not stand to legal scrutiny. The Joint Charity Commissioner has also commented upon the conduct of elections and evidence led in that behalf and recorded a finding that election of Jeevansingh as Pradhan on 10.08.1978 is required to be ignored being unauthorised. The Joint Charity Commissioner has also considered sequence of events for discarding the case put up by applicant Jeevansingh, although it was pointed out that the Committee constituted by Jeevansingh, he being head, was electing the President every two years and constituting the working committee and was filing returns with the Registrar of the Society, still the claim cannot be validated only on that count. The Joint Charity Commissioner has also taken into consideration certain circumstances, such as applicant Jeevansingh having been in possession of office premises of Diwan, they were nominated on the board constituted under Section 6 of Nanded Gurudwara Act, as nominees of Diwan and have entered into correspondence with Government offices like Collector, Nanded, Revenue and Forest Ministry and office of Assistant Charity Commissioner, etc. Another circumstance, that was taken into account, is the decision rendered in Misc. Civil Application (RJE) No.14/1985, wherein it was declared that the body presided over by Gurucharansingh constituted on 29.07.2000, to continue in the office. The circumstance, that applicants were filing accounting returns during pendency of proceedings, has also been taken into account. However, the Joint Charity Commissioner has thought it fit to take into account certain prelitem circumstances which compelled the trust authorities to hold against applicant and those are, namely, in the year 1967, Bhujangsingh and his working committee were managing affairs of Diwan and that is why a suit bearing RCS No.118/67 was filed against them. The circumstance indicates that till the year 1964, as has been held in the suit as well as in Regular Civil Appeal No.136/1969, Bhujangsingh was President of Diwan and his working committee was legally constituted one.
24. Another circumstance is that admittedly there was no legally constituted working committee for 14 to 15 years and that is why an ad-hoc committee was appointed in the year 1978 and election was held. Thus, it can be assumed that Bhujangsingh was legally elected President of Diwan in the year 1964 and working committee constituted by him was having legal and valid status. These are and certain other circumstances, which persuaded the Joint Charity Commissioner, not to accept the case put up by applicant Jeevansingh to the effect that he was appointed as Pradhan of Diwan and applicants shown in Inquiry Application No.950/1981 are the trustees of Diwan. Thus, it appears that the Joint Charity Commissioner, after recording reasons in detail, was persuaded to record a conclusion that applicant Jeevansingh and others have not substantiated their case of they being Pradhan or trustees of Diwan. Learned District Judge, however, has reversed the finding and specifically recorded that the election held on 10.08.1978 is a valid election and that Jeevansingh, who had tendered an application for registration of trust, is trustee of the trust. While recording these findings, learned District Judge has not recorded any reasons in support thereof.
25. It is to be noted that the District Judge, who was dealing with an application under Section 72 of the Act, is supposed to appreciate the evidence placed on record and note his findings on each of the issue involved in the matter. It is also required to be taken note of that the decision rendered under Section 72 of the Bombay Public Trusts Act by the District Judge, is the judgment of the appellate Court. The nature of inquiry in the proceedings under Section 72 of the Act is akin to an inquiry in first appeal. The appeal in respect of proceedings under Bombay Public Trusts Act, 1950, against decision rendered by District Court under Section 72 of the Act, is in the nature of a Second Appeal and as such, the High Court is required to formulate substantial questions of law while dealing with an appeal. A reference can be made to a judgment in the matter of Omprakash Gulabchand Partani & another Vs. Charity Commissioner, reported in 2007(5) Bom.C.R. 195.
26. Thus, there cannot be any dual opinion as regards responsibility of the first appellate court while dealing with the appeal as contemplated by Section 72 of the Bombay Public Trusts Act, 1950. The District Court, while rendering decision in the inquiry in an application under Section 72 of the Act has to scrutinise all the evidence and record findings on each of the issues involved in the matter. In the instant case, as stated earlier, learned District Judge has devoted whole of the judgment in reproducing facts or narration of the proceedings or for reproducing extracts from annexures presented on record. As stated earlier, decision rendered by District Judge cannot be considered as judgment in the eye of law. At this stage, it would be appropriate to refer to the observations made by the Apex Court and expectations from the appellate forum while rendering decision in an appeal, as laid down in the matter of Santosh Hazari Vs. Purushottam Tiwari, reported in (2001)3 SCC 179, wherein it is observed thus :
"The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi Vs. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weight with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (See Madhusudan Das Vs. Narayanibai) The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh). Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one."
27. In view of the reasons set out above, there is no other alternative except to allow the appeals and remit the matter back to the first appellate Court for rendering decision in consonance with the observations made in this judgment. That the appellate Court, while dealing with appeal, shall determine the claims raised by rival parties in respect of their entitlement to represent Diwan as trustees thereof. It is also necessary for the appellate Court to deal with the issue as regards property of the trust and vesting thereof in any person either in the capacity as trustee or manager and the effect of such vesting.
28. In this view of the matter and for the reasons recorded above, both the appeals are allowed. The judgment and order passed by Ad-hoc District Judge-2, Nanded on 03.10.2009 in Appeal RJE Nos.38/2007 and 68/2007 are quashed and set aside and the matters are remitted back to the District Court for fresh determination in accordance with provisions of law and in consonance with the observations made in this judgment. Considering long history of legal battle between parties, it is desirable to issue direction in respect of expeditious disposal of appeals by the District Court. Appeals be decided on priority basis. In the facts and circumstances of this, there shall be no order as to costs. Pending Civil Applications, if any, do not survive and stand disposed of.