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Bhagwan Sitaram Khasale Vs. Namdeo Narayan Gore and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberAppeal No. 34 of 1958
Judge
Reported inAIR1961Bom239; (1961)63BOMLR289; ILR1961Bom224
ActsReligious Endowments Act, 1863 - Sections 2 and 14; Central Provinces Berar Courts Act, 1917 - Sections 17, 17(1) and 26; Guardians and Wards Act; Lunacy Act; Madhya Pradesh Public Trusts Act, 1951 - Sections 2(1), 26, 27 and 27(2)
AppellantBhagwan Sitaram Khasale
RespondentNamdeo Narayan Gore and anr.
Appellant AdvocateM.Q. Qazi, Adv.
Respondent AdvocateR.K. Manohar and ;U.A. Zinjarde, Advs.
Excerpt:
.....defines 'civil court' and 'court' on section 2 thereof as the principal court of original civil jurisdiction in the district in which or any other court empowered in that behalf by the state government within the local limits of the jurisdiction of which the mosque, temple or religious establishment is situate, relating to which or to the endowment whereof, any suit shall be instituted or application made under the provisions of this act'.therefore, the contention on behalf of the respondents may perhaps be justified if the district judge bad been taking the action as was taken in the present case, because by virtue of section 17(1)(c) of the c. 10. but apart from all this, section 26 indicates that such an application can only be made it the registrar on the application of any person..........temple of shri dutt dcosthan. by the same deed she appointed five persons including the appellant bhagwan as trustees. of the other persons appointed as trustees, one d. b. sarda is no longer alive. the principal trustee and the sarpanch was the appellant bhagwan. one of thetrustees, the respondent no. 2 dattatraya, resigned on 31-1-1932. 2. in 1949 this dattatraya and one namdeo narayan gore tiled civil suit no. 4-a of 1949 praying inter alia for the removal of the appellant bhagwan from the trusteeship and sarpanchshipof the deosthan and for various other directions. the other surviving trustees, namely, laxmangangaram deshmukh and dacla vithoba khasala were defendants in that suit. on 7-8-1950 a preliminary decree was passed by the first additional district judge, yeotmal, giving.....
Judgment:

1. This is an appeal against an order passed by the First Additional District Judge, Yeot-mal, dated the 26th June 1958, removing the appellant Bhagwan from the trusteeship and sarpanchship of a public religious endowment known as Shri Dutt Deosthan, Kalamb, tahsil and district Yeotmal. The facts preceding the application dated 19-10-1957 upon which the order under appeal came to be passed arc not in dispute. On 3-6-1928 one Kasabai widow of Krishnaji Gore executed a deed of trust. By that deed she dedicated a field, survey No. 39/1, area 10 acres 32 gunthas, of KashaKalamb, to the temple of Shri Dutt Dcosthan. By the same deed she appointed five persons including the appellant Bhagwan as trustees. Of the other persons appointed as trustees, one D. B. Sarda is no longer alive. The principal trustee and the Sarpanch was the appellant Bhagwan. One of thetrustees, the respondent No. 2 Dattatraya, resigned on 31-1-1932.

2. In 1949 this Dattatraya and one Namdeo Narayan Gore tiled civil suit No. 4-A of 1949 praying inter alia for the removal of the appellant Bhagwan from the trusteeship and Sarpanchshipof the Deosthan and for various other directions. The Other surviving trustees, namely, LaxmanGangaram Deshmukh and Dacla Vithoba Khasala were defendants in that suit. On 7-8-1950 a preliminary decree was passed by the First Additional District Judge, Yeotmal, giving certain directions which are material for the purposes of this appeal but disallowing the prayer for the removal ot the appellant from the trusteeship. Against this decree the appellant Bhagwan moved the then High Court at Nagpur in First Appeal No. 150 of 1950 and by the judgment of a Division Bench of this Court dated 28-11-1956 the appeal was dismissed. A cross-appeal filed by the plaintiffs in the suit praying that their prayer for the removal of the appellant Bhagwan had been wrongly disallowed was also dismissed, with the result that the appellant Bhagwancontinued as the Sarpanch and trustee of the said Deosthan but was subject to the directions given in She two decrees. In those proceedings in paragraph 17 of the trial Court's judgment dated 7-8-1950 the following directions were given:

'Issue No. 9: I order the defendant No. 1 to associate the other Panchas in the matter of the management of the field and the temple. He will along with the defendants 2 and 3 select two Panchas in order to make the required number of five. This he will do within two months from today. One of the Panchas will be the plaintiff No. 2 if he is willing. The defendant No. 1 shall never arrange the annual dinners in his house and always arrange them in the temples. The defendant No. 1 shall every year from date of suit show the accounts tothe Panchas and obtain their signatures in token of consent or obtain their written objections. He shall render to the plaintiffs and the defendants 2 and 3 accounts of the management of the field and the temple from 1933 till the filing of the suit. Theplaintiffs' claim for removal of Panchas is dismissed'.

It was this judgment which was confirmed in First Appeal No. 150 of 1950. The present appeal arisesout of an application filed by the plaintiffs in that suit on 19-10-1957.

3. By that application the plaintiffs complained that the defendant No. 1 Bhagwan, the appellant before me, had not complied with the directions contained in paragraph 17 quoted above which were subsequently incorporated in a preliminary decree dated 12-8-1950, nor had he carried out the directions of the final decree passed in the suit on 24-11-1950. It remains to be stated that pending First Appeal No. 150 of 1950 before the High Court proceedings were taken in pursuance of the preliminary decree before the trial Court. A commissioner was appoint-ed to take accounts and in pursuance of the commissioner's findings a final decree came to be passed on 24-11-1950. By this final decree, the defendant No. 1 Bhagwan was ordered to pay back to the trust Rs. 1000-14-9 which were, held to be monies belonging to the trust but which he had failed to pay back to the trust or account for. The present application dated 19-10-1957 filed by the plaintiffs before the trial Court complained not merely that the directions of the preliminary decree had not been carried out but also that the amount ordered to Be deposited under the final decree dated 24-11-1950 had not been deposited. It will be seen from this statement of the facts that the complaint was that the defendant No. 1 Bhagwan had not complied with the directions of the preliminary decree or the final decree, nor had he deposited the amount due under the final decree for a period of nearly seven years from the date of the final decree.

4. One of the prayers in the present application was that the defendant No. 1 Bhagwan should be removed from the management of the trust property and as a Panch and that the said property should be entrusted to some other Panchas. After considerable delay the defendant Bhagwan filed a reply to this application and denied all the allegations made therein except that he admitted that a decree had been passed against him for a sum of Rs. 1000/14/9. In regard to this amount his reply was that since he was himself the Sarpanch and the money was ultimately to be paid to him, he had not paid the money to the Deosthan because he himself would have received it. At the stage of evidence, however, the defendant Bhagwan remained absent. He was put ex parte and the application dated 19-10-1957 has been allowed against him upon the ex parte evidence of the plaintiff No. 2 Dattatraya. The learned trial Judge framed issues as to whether the amount of Rs. 1000/14/- was due from him and whether he had not complied with the decree during the past nine years. On issue No. 2 regarding the alleged mismanagement of the trust property, he held that the defendant Bhagwan had been mismanaging the trust property. He had neither repaired the temple, nor appointed any priest for its worship and the building was getting damaged. He also held that he had not shown accounts to his co-trustees from 20th April 1949 to 7th October 1950. His accounts moreover were suspicious, unreal and false. The trial Court also held that he had leased the only property of the trust, namely, the field survey No. 39/1 of mouza Kalamb, to near relatives of his during the last seven years to the detriment of the trust income. In 1956-57 he had received lease money of Rs. 125/- but he had shown that amount in his account books as being only Rs. 80/- and had misappropriated the balance. The trial Court also came to the conclusion that while normally the lease money of the field should have increased, the appellant had been showing lesser and lesser amounts in his accounts and that those accounts were false.

5. I have not the least doubt that all these findings given by the trial Court were perfectly justified upon the evidence. They are all borne out by the evidence of the plaintiff No. 2 Dattatraya, which evidence was not challenged. In fact, Mr.Qazi appearing on behalf of the appellant has not made any attempt to show that this finding of fact was in any manner erroneous or unjustified upon the evidence. I concur in the finding of the trial Court that the appellant Bhagwan was mismanaging the trust property, keeping incorrect and false accounts, not rendering or showing them to his co-trustees, and has been mismanaging and misappropriating the income from the trust property. He has also not complied with the orders of the Court.

6. Mr. Qazi has however laid considerable stress upon a point of fundamental importance in this case and I am inclined to hold that upon this point he is entitled to succeed so for as this appeal is concerned. The question raised is as to the jurisdiction of the trial Court to remove the appellant Bhagwan. I have already stated that both in the judgment of the trial Court resulting in the preliminary decree, as also in the appellate judgment in First Appeal No. 150 of 1950, the question as to whether Bhagwan ought to be removed from the Sarpanchship and trusteeship of the temple was agitated but both the Courts had held that in the circumstances he ought not to be so removed. This finding was arrived at by the two Courts upon the evidence and such material as bad been placed before them in the suit. The subsequent acts of misconduct, misappropriation and noncompliance with the orders of the Court which were alleged in the application dated 19-10-1957 were not before those two Courts and therefore they had held that in the circumstances then before them, the defendant Bhagwan ought not to be removed from the Sarpanchship.

7. It has been contended that the application dated 19-10-1957 was presented before the trial Court in its ordinary original jurisdiction and all that the trial Court acting within its ordinary jurisdiction could do was to execute the final decree; and obviously if its jurisdiction were limited to executing the final decree, then it could not proceed to remove the Sarpanch when the judgments of the two Courts resulting in the final decree had held that he ought not to be so removed.

8. On the part of the plaintiff-respondents, the action taken by the trial Court in removing the appellant has been sought to be justified upon two grounds. In the first place, Mr. Manohar has referred to the provisions of the Central Provinces and Berar Courts Act, 1917, and urged that the Additional District Judge who has passed the order impugned in this appeal had the jurisdiction in view of Section 26 of that Act. No doubt, Section 26 of the C. P. and Berar Courts Act gives to an Additional District Judge the same jurisdiction and powers which a District Judge has, but Section 26 has to be read in conjunction with Section 17 of the Act which confers the jurisdiction upon the District Court itself. All that Section 17 says is that the District Court shall have jurisdiction to hear and determine any suit or original proceeding without restriction as regards the value, and shall be deemed to be the principal Civil Court of original jurisdiction in the Civil district Clause (c) of Section 17(1) however is expressly made subject to any other enactment for the tune being in force and therefore so far as the provisions of the C. P. and Berar Courts Act are concerned, they deal with only the ordinary jurisdiction of the District Judge, thatis to say, with regard to suits and other proceedings which can be commenced under the Code of Civil Procedure but not with proceedings which may be commenced before him under special Acts, such as for instance, the Guardians and Wards Act, the Lunacy Act, or as in the instant case, the Religious Endowments Act. The present proceeding commenced upon the application dated 19-10-1957 was a proceeding to which Section 14 of the Religious Endowments Act (XX of 1863) would be attracted. One of the prayers in that application was for the removal of a trustee, which is precisely the relief contemplated by Section 14. Yet the application is not under that Act. The question then is whether the Additional District Judge, when he took action to remove the appellant Bhagwan, could be said to be acting under any jurisdiction under the Religious Endowments Act or was acting under the ordinary jurisdiction vested in him under the C. P. and Berar Courts Act. It will be seen that the Religious Endowments Act defines 'Civil Court' and 'Court' on Section 2 thereof as

'the principal Court of original civil jurisdiction in the district in which or any other Court empowered in that behalf by the State Government within the local limits of the jurisdiction of which the mosque, temple or religious establishment is situate, relating to which or to the endowment whereof, any suit shall be instituted or application made under the provisions of this Act'. Therefore, the contention on behalf of the respondents may perhaps be justified if the District Judge bad been taking the action as was taken in the present case, because by virtue of Section 17(1)(c) of the C. P. and Berar Courts Act he would be 'the principal Civil Court of original jurisdiction in the civil district'. But in so far as the Additional District Judge is concerned, he would be 'any other Court' within the meaning of Section 2 of the Religious Endowments Act and therefore he would have to be empowered by the State Government as required by Section 2. No such power conferred upon the First Additional District Judge, Yeotmal, has been pointed out to me. Moreover, it seems to me that the application dated 19-10-1957 did not purport to be under Section 14 of the Religious Endowments Act or any other special enactment but was an application in the ordinary jurisdiction of the Additional District Judge made in the execution proceedings before him. Therefore, the provisions of the C. P. and Berar Courts Act will not assist the respondents in justifying the order passed by the Additional District Judge.

9. Then Mr. Manohar referred to the provisions of Sections 26 and 27 of the Madhya Pradesh Public Trusts Act, 1951 (XXX of 1951). Undoubtedly, Section 27 of that Act gives power to the Court to make or cause to be made such inquiry against a trustee in a case of this kind, and if necessary, to remove him or to pass other ancillary orders as contemplated by Sub-section (2) of Section 27; and the 'Court' under Section 2(1) of this Act means 'the principal Civil Court of original jurisdiction in the district'. That again would raise a further complication, because the Additional District Judge, was not the principal Court of original civil jurisdiction and obviously if he was to be empowered to take proceedings contemplated by Sections 26 and 27 of the Act there would haveto be a separate notification, which again has not been pointed out to me.

10. But apart from all this, Section 26 indicates that such an application can only be made it the Registrar on the application of any person interested in the public trust or otherwise is satisfied about certain matters, thereupon he may 'after giving the working trustee an opportunity to be heard, direct such trustee to apply to court for directions within the time specified by the Registrar'. In other words, the application as contemplated by Sections 26 and 27 has to be made to the Court after an order has been passed by the Registrar permitting such an application to be made. Now, in the present case, such an order was made by the Collector, Yeotmal, Mr. Page, on 9-6-1958. That was alter the present application was presented in the trial Court on 19-10-1957. Therefore, obviously the application could not have been an application under Section 26 or Section 27 because the application was made before the sanction or the Collector- was obtained. I do not think that having regard to the provisions of Sections 26 and 27, retrospective sanction granted by the Collector would be of any avail. These are special remedies granted by a special enactment and, in my opinion, the conditions prerequisite for the enforcement of those remedies must be strictly fulfilled.

11. The position therefore is that looking at it from any point of view, it is difficult to uphold the jurisdiction of the trial Court to remove the appellant Bhagwan. The order of removal becomes all the more glaring in its inconsistency when I consider that both the trial Court in its judgment in the civil suit and the High Court in First Appeal No. 150 of 1950 expressly held that He ought not to be removed. I should not be understood to say that he cannot be removed if proper proceedings are taken against him, Indeed, I have already indicated that there is not the least doubt upon the evidence in this case that he has been guilty of the grossest mismanagement and misconduct as a trustee, that he has not paid the bust monies ordered to be repaid by him to the trust, that he has maintained false accounts, and that he has mismanaged and misappropriated the trust property and excluded his co-trustees from, the management of the trust. It is regrettable however that an order which I consider was a proper order cannot however be upheld because of the legal want of jurisdiction in the trial Court to take such an action against the appellant. Mr. Manohar on behalf of the respondents has urged that this Court may now take such an action, because as to the jurisdiction of the High Court to take similar action, there can be no manner of doubt. It may be that this Court has the jurisdiction -- I would not hold so without further investigating the question but assuming that I had the jurisdiction, I do not think that I should in the present case constitute myself into an original Court and inquire into this application upon the evidence, especially when that evidence was recorded ex parte. If the respondents choose, they can nut in a fresh application in pursuance of the sanction of the Collector granted on 9-6-1958, and I have no doubt that the proper Court will, taking into account the grave circumstances disclosed in this case and the fact that the necessity for safeguarding the trust propertySs very urgent, pass appropriate and immediate, orders.

12. In the result, I allow the appeal and setaside the order of the Additional District Judge,.Yeotmal, dated 26-6-1958. The point upon whichthe appeal has succeeded was never raised before.the trial Court. The conduct of the successful appellant has, in my opinion, been reprehensible. In.view of these circumstances, I think it proper thatboth the parties should bear their own costs through-out,

13. Appeal allowed.


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