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Taraben Baldevdas Parikh Vs. Charity Commissioner, Greater Bombay Region and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 612 of 1955
Judge
Reported inAIR1957Bom42; (1955)57BOMLR1069
ActsBombay Public Trusts Act, 1950 - Sections 17, 18, 18(5), 19, 20, 21, 22, 22-A, 26, 28A, 50, 56B, 70, 70-A, 72, 79 and 80; Code of Civil Procedure (CPC), 1908 - Sections 9 and 10; Constitution of India - Article 227; Bombay Public Trusts Rules, 1951 - Rule 7; Presidency Small Cause Courts Act, 1882; Provincial Small Cause Courts Act, 1887; Bombay Village Panchayat Act
AppellantTaraben Baldevdas Parikh
RespondentCharity Commissioner, Greater Bombay Region and ors.
Appellant AdvocateM.P. Laud and ;B.K. Thakkar, Advs.
Respondent AdvocateLittle & Co., ;S.C. Baptista and ;H.K. Shah, Advs.
Excerpt:
.....suit barred under bom. act xxix of 1950--application by defendants under section 19 of act to deputy charity commissioner to determine whether money lying in deposit with them, constituted a public trust within act--application by petitioner for stay of proceedings before deputy charity commissioner under section 10, civil procedure code--jurisdiction of civil court to decide whether sum in hands of defendants property of public trust.;the petitioner filed a suit in a civil court against the respondents for a declaration that she was the owner of a certain sum of money lying in deposit with the respondents and no one else had any right, title and interest in that sum. in this suit a preliminary issue was raised whether the suit was barred by the bombay public trusts act, 1950...........that he had exclusive jurisdiction to try the issue whether the property in dispute was public trust property, and the jurisdiction to decide that question was barred by the provisions of the bombay public trusts act, and therefore the question of staying the application under section 10 of the civil p. c. did not arise. the deputy charity commissioner accordingly dismissed the application.4. against the order dismissing the application passed by the deputy charity commissioner, an appeal was preferred to the charity commissioner, but the same was dismissed on the ground that it was not maintainable. the petitioner has applied to this court under article 227 of the constitution and she has requested that the proceedings before the deputy charity commissioner filed by respondents nos......
Judgment:

Shah, J.

1. The petitioner Taraben Baldevdas Parikh filed civil suit No. 63 of 1953 in the Court of the Civil Judge Junior Division at Kapadvanj, District Kaira, against Amratlal Lallubhai Ramlal Jagmohandas, Jayantilal Nanalal, Manilal Bapalal, Mohanlal Bapulal and Shantilal Maganlal for a declaration that she was the real owner of an amount of Rs. 20,000/-which were lying in deposit with Ramanlal Jagmohandas and Jayantilal Nanalal (whom I will hereafter refer to as respondents Nos. 3 and 4) and no one else had any right, title and interest in that amount. Respondents Nos. 3 and 4 were served with the summons of the suit. Thereafter they submitted an application under Section 19 of the Bombay Public Trusts Act, 1950 before the Deputy Charity Commissioner, Greater Bombay Region, for registration of trust alleged to have been created by one Bai Parsan in respect of the amount of Rs. 20,000/-lying in deposit with them, and also in respect of a further sum of Rs. 4,000/-. Respondents Nos. 3 and 4 also applied to the Deputy Charity Commissioner to make enquiries and to determine whether the said 'amounts constituted a trust' and whether the trust was a public trust within the meaning of the Bombay Public Trusts Act, 1950. They also prayed for an injunction restraining the petitioner and Shantilal Maganlal, who is the executor of Amratlal Lallubhai -- the latter having died since the institution of the suit -- from proceeding with suit No. 63 of 1933 and another suit No. 32 of 1952, which had been filed by Amratlal Lailubhai for a declaration that respondents Nos. 3 and 4 were bound to spend the amount of Rs. 20,000/-lying in deposit with them for certain charitable purposes and for a direction accordingly.

2. The petitioner by her written statement to the application filed before the Deputy Charity Com-missioner contended, inter alia, that he had no jurisdiction to entertain the application as the question relating to the existence of a trust was involved in the two suits and also in the application. The petitioner also contended that in the circumstances the provisions of Section 56B and Section 26 of the Bombay Public Trusts Act applied.

3. The contention raised by the petitioner as to the jurisdiction was heard as a preliminary issue by the Deputy Charity Commissioner. He negatived the contention of the petitioner and hold that he had jurisdiction to entertain and hear the application. It appears that in suit No. 63 of 1953 a preliminary issue was raised, whether the suit was barred under the Bombay Public Trusts Act. The petitioner thereafter applied for stay of the proceedings before the Deputy Charity Commissioner under Section 10 of the C. P. C. .contending that as the same issue fell to be determined in two different proceedings before two different tribunals simultaneously, and the suit instituted by the petitioner being prior to institution of the application under Section 19, the proceedings before him were liable to be stayed. The Deputy Charity Commissioner held by his order dated the 8th November 1954 that he had exclusive jurisdiction to try the issue whether the property in dispute was public trust property, and the jurisdiction to decide that question was barred by the provisions of the Bombay Public Trusts Act, and therefore the question of staying the application under Section 10 of the Civil P. C. did not arise. The Deputy Charity Commissioner accordingly dismissed the application.

4. Against the order dismissing the application passed by the Deputy Charity Commissioner, an appeal was preferred to the Charity Commissioner, but the same was dismissed on the ground that it was not maintainable. The petitioner has applied to this Court under Article 227 of the Constitution and she has requested that the proceedings before the Deputy Charity Commissioner filed by respondents Nos. 3 and 4 under Section 19 of the Bombay Public Trusts Act be stayed pending disposal of the suit filed by her in the Kapadvanj Court (Suit No. 63 of 1953).

5. The application is resisted on the ground that under the Bombay Public Trusts Act, 1950, the question, whether such a trust is a public trust is exclusively within the competence of the Charity Commissioner. Similarly it is contended that the question, whether any property is property of such trust is also exclusively within the competence of the Charity Commissioner, and those questions cannot be decided by the Civil Court. Reliance is placed in support of that contention on the provisions of Sections 19, 79 and 80 of the Bombay Public Trusts Act, 1950.

6. In order to appreciate the contention it may be necessary to refer to certain provisions of the Bombay Public Trusts Act.

7. By Section 18 a duty is cast upon every trustee of a public trust to make an application for registration of the Trust. The application is required to be made to the Deputy or Assistant Charity Commissioner of the region within the limits of which the Trustee has an office for the administration of the trust. Sub-section (5) of Section 18 sets out what particulars such application should inter alia contain. By Sub-section (7) which is incorporated for the first time by Bombay Act 23 of 1955 a duty is cast upon the trustee of a public Trust to send a memorandum containing the particulars including the names and description of the public Trust relating to the immoveable property of such public trust to certain authorities specified in that Sub-section.

8. Section 19 provides for an enquiry being made by the Deputy or the Assistant Charity Commissioner in the prescribed manner for ascertaining inter alia whether a trust exists and whether such trust is a public trust, and whether any property is the property of such trust. After making an enquiry under Section 19 the Deputy or the Assistant Charity Commissioner has under Section 20 to record his findings with the reasons therefor as to the matters mentioned in Section 19 and thereafter under Section 21 the Deputy or Assistant Charity Commissioner has to make entries in the. register of Trusts maintained under Section 17 in accordance with the findings recorded on the enquiry. Section 22 provides for making record of entries of any change in the entries made in the Register; and Section 22-A provides for a further enquiry, by the Deputy or Assistant Charity Commissioner in the matter relating to any particulars relating to any public trust which was not the subject matter of the enquiry under Section 19.

9. Under Section 79 any question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal and the decision in appeal unless set aside by the decision of the District Court on application or of the High Court hi appeal shall be final and conclusive.

10. Section 80 excludes jurisdiction of the Civil Courts save as expressly provided by the Act to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act or in respect of which the decision be order of such officer or authority has been made final and conclusive.

11. By Section 70 certain orders passed by the Deputy or Assistant Charity Commissioner are made appealable, and the Charity Commissioner is entitled to make further enquiry and to direct additional evidence to be taken. Under Section 70-A the Charity Commissioner is given revisional jurisdiction to call for and examine record of any proceeding before any Deputy or Assistant Charity Commissioner for purpose of satisfying himself as to the correctness of any finding or order passed by such officer and he is entitled only to revise the order so passed.

12. Section 72 provides for an appeal against any decision of the Charily Commissioner against an order passed either in appeal or revision or as a court of original jurisdiction when he has decided whether a trust exists or whether a trust is a public trust, or whether any property is the property of such trust. Against the decision of the District Court a second appeal lies to the High Court.

13. The scheme of these provisions therefore appears to be in the first instance to confer jurisdiction upon the Deputy or Assistant Charity Commissioner to make an enquiry inter alia relating to the existence of a trust, whether such trust is a public trust, and whether any property is the property of such trust. The jurisdiction of the Civil Courts to decide questions which have been either dealt with by an officer or authority under the Act or which are to be decided or dealt with by him is excluded, save as expressly provided by the Act; and the decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner, subject to decision in appeal, is made final and conclusive. In short, the Legislative has provided a tribunal with exclusive jurisdiction to try the questions specified in Section 19; and has made provisions for appeals being filed against those decisions and has expressly excluded the jurisdiction of the Civil Courts in respect of matters which are entrusted to the jurisdiction of the tribunal.

14. Now jurisdiction of such amplitude having been conferred under the Act upon the Deputy or Assistant Charity Commissioner or the Charity: Commissioner to decide questions set but in Section 19 and jurisdiction of the Civil Courts having been simultaneously excluded, it would he difficult to hold that the civil Court has jurisdiction to decide the same questions over again in a civil suit. Reliance, however, was sought to be placed upon the terms of Section 50 which enables suits relating to public trusts to be filed for certain reliefs by the Charity Commissioner or by two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner. One of the class of such suits is a suit where a declaration is necessary that particular property is property belonging to the public trust or whether a direction is required to recover possession of such property or proceeds thereof or for taking accounts of such property from any person including a person holding adversely to the public trust, or where the direction of the court is deemed necessary for the administration of the Public Trust.

15. It was submitted that if jurisdiction of the Civil Court to decide, whether a particular property is the property of a public trust is excluded the civil Court would have no jurisdiction even at the instance of the Charity Commissioner, or two or more persons who have obtained his consent in writing to entertain a Suit for a declaration that a particular property is the property belonging to a public trust and for consequential reliefs. But it has to be noted that the exclusion of jurisdiction of the civil Court is made subject to any provision expressly made, and section 50 being such a provision jurisdiction of the Civil Court to entertain suits which fall within the description of suits mentioned therein may not be regarded as excluded.

16. Reliance was also placed upon the fact that the scheme of the Act and the Rules framed thereunder contemplated an enquiry into title to the property of a person who may not be before the Deputy or Assistant or the Charity Commissioner, and the title of a third person may be lost by a conclusive determination even though he has had no opportunity of being heard. That argument was further sought to be re-enforced by pointing out that under rule 7 of the Rules framed under the Act called Bombay Public Trusts Rules 1951, an enquiry shall be held as far as possible in the Greater Bombay region in accordance with the procedure prescribed for trial of suits under the Presidency Small Cause Courts Act 1882, and elsewhere under the Provincial Small Cause Courts Act, 1887; and it was submitted that under the Presidency Small Cause Courts Act the Judge is not bound to record any evidence and to give any reasons for his decision, and it was urged that it would not have been the intention of the legislature to deprive persons of their title to property on an enquiry of that nature.

17. It is unnecessary in the present case to express any opinion on the question whether it was intended by the Legislature to render the decision of the Deputy or Assistant Charity Commissioner final and binding upon person who has had no opportunity of appearing before that officer. Suffice it to say that in the present case the petitioner had appeared before the Deputy Charity Commissioner and has submitted her written statement and! she will be entitled to make such objections on evidence as she may be able to do. But it must be pointed out that Rule 11 provides that at an enquiry or other proceeding under the Act the evidence of witnesses shall be taken down in writing in the regional language or the language of the witness in the presence and under the personal direction and superintendence of the officer holding the enquiry. The Officer holding the enquiry is also required to make a memorandum of tile substance of the evidence. That would indicate that in the enquiry made by the Deputy or Assistant Charity Commissioner full record of evidence would be available to an appellate Court. Section 20 of the Act requires the Deputy or Assistant Charity Commissioner not only to record his findings on disputed questions but also the reasons for the findings. It is evident that even though the procedure of the Courts of Small Causes is required to be followed under rule 7 a record containing full details of the evidence and the reasons which induced the Deputy or Assistant Charity Commissioner to come to his conclusion would be available to the appellate court. It is undoubtedly true that no notice is required to be given either generally or to the persons who may appear to be interested in the property.

But it also has to be borne in mind that upon the trustee is cast obligation to give information to the Village Panchayat constituted under the Bombay Village Panchayat Act and to the municipality within the local limits of which any immoveable property is situate about the existence of any trust. Similarly by Section 28A the Deputy or Assistant Charity Commissioner is required to send a memorandum in the prescribed form containing the entries relating to a public trust in so far as they relate to immoveable property to the Sub-Registrar in the moffussil and to the Collector of Bombay in the City of Bombay and to the village Panchayats and the municipalities within the limits of which any immoveable property of such public trust is situate. That indicates that full publicity is required to be given to the decision of the Deputy or Assistant Charity Commissioner.

18. In that view of the case, the order passed by the Deputy Charity Commissioner holding that the Civil Court has no jurisdiction to decide the question whether the amount in the hands of the trustees is the property of a public trust and the application before him cannot be stayed appears to be correct.

19. The rule is therefore discharged with costs.

20. Rule discharged.


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