(1) These are appeals by the trustees of defendant 'Shri Adinath Tirthankar Jain Mandir' and the Charity Commissioner against the order of remand passed by the learned Assistant Judge, Kolhapur.
(2) These appeals arise in this way. The suit property, which is land, originally belonged to one Devappa. After the death of Devappa and his son Annappa, Devappa's property was inherited by his widow Ratnabai. she donated the suit land to 'Shri Adinath Tirthankar Jain Mandir' which is defendant No. 1 in the present suit. The gift-deed was executed on 23rd July 1945. After the execution of that gift-deed Ratnabai died sometime later during the same year. The plaintiff alleges that he and defendants Nos. 2 to 4 are reversioners to the estate of Annappa. The plaintiff filed the present suit for partition and separate possession of his one fourth share in the suit land. According to the plaintiff, Ratnabai as a widow in the joint Hindu family had a limited estate and she had no right to donate the suit land to the said Mandir. On these allegations, partition and separate possession of one-fourth share is claimed by the Plaintiff. The Charity Commissioner is defendant No. 5 in the present suit.
(3) The suit was contested on various grounds. One of them being that the Civil Court has no jurisdiction to entertain and try the present suit in view of Section 80 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the Act'). The trial Court upheld that contention and dismissed the plaintiff's suit. Against this decision, the plaintiff preferred an appeal to the District Court, Kolhapur. The learned Assistant Judge, who heard the appeal, held that the present suit is not barred under Section 80 of the above said Act. He, therefore, set aside the decree passed by the trial Court and remanded the suit to the trial Court for disposal on merits . It is against this decision, that Appeal from Order No. 271 of 1962 is preferred by the trustees of the above said Mandir. Appeal from Order No. 302 of 1962 is preferred by the Charity Commissioner against the same decision.
(4) Mr. Shrikhande, who appears for the trustees, and Mr. Abhyankar, who appears for the Charity Commissioner, both contend that the view taken by the trial Court is correct and that of the lower appellate Court is wrong. Reliance is placed on Sections 79 and 80 of the Act. It is argued that the question in the present suit is whether the suit land is the property of the plaintiff and defendants Nos. 2 ro 4, or whether it is the property of a public trust in the name of defendant No. 1. this question must be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner under Section 79. Hence jurisdiction of the Civil Court is barred under Section 80 of the Act. I am unable to accept this contention. considering the allegations in the plaint in the present suit, it is clear that the question raised by the present suit is whether the author of the alleged trust, viz. Ratnabai, had the capacity to create the trust in question. According to the plaintiff, Ratnabai had no authority to create the trust, hence no trust exists in the eyes of law. That is the contention raised by the present suit. thus the question for determination in these appeals is whether the above-said question. viz. whether Ratnabai had the authority to create the trust in question, is covered by Section 79 of the Bombay Public Trusts Act. It is urged by M/s. Shrikhande and Abhyankar that under the Act, the Deputy or Assistant Charity Commissioner or the Charity Commissioner has to decide whether a public trust exists or not and while deciding that they have also jurisdiction to decide the above-said question. It is further urged that not only they have jurisdiction ot decide that, but they are bound to decide it while arriving at the finding whether a public trust exists or not. In other words, while deciding whether a public trust exists or not, all other incidental questions could be decided, in fact they have got to be decided, by the Deputy or Assistant Charity Commissioner or the Charity Commissioner. In support of this contention, reliance is placed on a decision of this Court, viz. Taraben Baldevdas Parikh v. Charity Commr., Grater Bombay Region, : AIR1957Bom42 . As pointed out by the learned appellate Judge, the question that arises in these appeals was not decided in that case and it was expressly left open. A reference is also made to Gurusiddappa Tipanna Mugeri v. Miraj Education society, Miraj : (1961)63BOMLR312 . In the first place, in that case the question that arose was whether the suit was barred, because the consent of the Charity Commissioner was not obtained, as provided by Section 50 of the Act. The question that arises in these appeals did not directly arise in that case. Justice Naik took the view that it is only in the cases or disputes arising out of administration and management of public trusts that the Charity Commissioner comes into the picture and Section 50 of the Act provides that the Charity Commissioner or with his consent two or more persons interested in the trust can file a suit for any of the various reliefs set out in sub-cls. (a) to (h) of Clause (iii) of Section 50. With these observations Justice Naik held that the claim in that suit did not fall within the scope of the said section Messrs. Abhyankar and Shrikhande rely on a decision of Justice Gokhale in Civil Revn. Appln. No. 483 of 1960 decided on 23-8-1060 (Bom.). Some of the observations in that decision, seem to favour the contention advanced by Messrs. Abhyankar and Shrikhande. It is, however, important to note that in that case an application under Section 72 of the Act was filed in the District Court. The petitioners before Justice Gokhale having come to know of that application under Section 72 of the Act applied to the District Court praying that they should be joined as parties to that application. That prayer was rejected and against that order a revision application was preferred to this Court. Thus in that case the petitioners themselves wanted to have their claim adjudicated under the provisions of the Bombay Public Trusts Act and Justice Gokhale held that if a person feels aggrieved by the decision under the Act, he is entitled to apply to the District Court under Section 72 of the Act and have his claim adjudicated. But the point that arises in these appeals before me is whether a person, who was not a party to the proceedings under the Bombay Public Trusts Act but finds that his property is registered as trust property pursuant to the said proceedings, he is precluded from filing a suit for declaration of his title in a Civil Court in view of Sections 79 and 80 of the Act. In my opinion, the decision by Justice Gokhale can be distinguished on facts; in that case the persons concerned wanted to be joined as parties to the proceedings under the Act.
(5) Reliance is also placed on a decision of Justice Shelat, as he then was in Kuberbhai Shivdas v. Purshottamdas Kalyandas : (1961)2GLR564 . Here again it must be pointed out that the plaintiffs in that case did file an application before the Deputy Charity Commissioner. That application was rejected, an appeal to the Charity Commissioner against that decision was also dismissed, but the plaintiffs did not pursue the further remedy by way of an application under Section 72 of the Act. Thus there was a decision in proceedings under the Bombay Public Trusts Act against the plaintiffs in that case. Justice Shelat at Page 567 observes that the inquiry under Section 19 of the Act is by no means an administrative or an executive inquiry, the inquiry is not only for the purpose of registration, but it involved adjudication of questions. viz. whether a trust exists, if a trust exists whether it is a public trust and what properties belong to that trust. Justice Shelat referred to the various provisions of the Act and then came to the conclusions that the Act provided certain remedies to a person affected by a decision in a proceeding under the Act i.e. the Bombay Public Trusts Act. In this respect he referred to Section 22-A of the Act. With regard to Ss. 79 and 80 of the Act. Justice Shelat observes:
'. . . . . . . It would also appear that Section 79 had to be inserted to make clear what Section 80 provides. Section 79 therefore expressly provides that the Deputy Commissioner shall have power to decide matters set out therein and having conferred that power on those officers, the Legislature by Section 80 debars the jurisdiction of a Civil Court to decide or deal with any question in respect of which the decision or the order of such officer has been made final and conclusive under Section 79 (2). That was necessary because under Section 9 of the Code of Civil Procedure, in spite of Sections 19, 20 and 79, a Civil Court would still have jurisdiction to entertain matters involving such questions. That jurisdiction under Section 9 of the Code of Civil Procedure has been now taken away by the provisions of Section 80 of the Act. It would also appear that whereas Section 19 confers power upon the Assistant or the Deputy Charity Commissioner to ascertain the question as to whether a trust exists or not and if so whether it is a public trust or whether a particular property is the property of such trust in an inquiry for registration, Section 79in express terms and with a view to avoid any possible ambiguity confers power upon these officers to decide the questions set out therein. . . . . . . .'
Reliving on these observations, it is urged that the present suit is barred under Sections 79 and 80 of the Act. With regard to Section 22-A, Justice shelat observes:
'. . . . . . . .. . Therefore any person, not merely a trustee, can apply under Section 22-A for a change in the entry on a matter or a particular left out from consideration in a previous inquiry under Section 19. If an order is passed under Section 22-A, and an applicant is aggrieved, he has the right of appeal under Section 70. If he is dissatisfied by an order under Section 70, a right has been conferred upon him to apply under Section 72 to the District Court and thereafter in appeal to the High Court. Such a right is confined to the two questions set out in Section 79 (1). Therefore, there is a complete code provided in the Act for dealing with matters set out in Sections 18 and 19 and recourse must be had to the procedure laid down in the Act.
I may point out here that the scope of Section 22-A is limited. Section 22-A reads thus:
'If at any time after the entries are made in the register under Section 21 or 22 it appears to the Deputy or Assistant Charity Commissioner that any particular relating to any public trust, which was not the subject-matter of the inquiry under Section 19, or sub-s. (3) of S. 22, as the case may be, has remained to be enquired into, the Deputy Or Assistant Charity Commissioner as the case may be, may make further enquiry in the prescribed manner, record his findings and make entries in the register in accordance with the decision arrived at or if appeals or applications are made as provided by this Act, in accordance with the decision of the competent authority provided by this Act. the provisions of Sections 19,20,21 and 22 shall, so far as may be, apply to the inquiry the recording of findings and the making of entries in the register under this section.'
From the wording of this section it is clear that section 22-A deals with a case where any particular relating to a public trust was not inquired into at the initial inquiry. The wording of section 22-A does not indicate that if a particular property is registered as property belonging to a public trust after inquiry under section 19, further inquiry under section 22-A can be made merely because someone, who was not a party to the proceedings under section 19, sets up a title to that property. The words 'which was not the subject-matter of the inquiry' under section 19 are material. If after inquiry under section 19 a particular property is held to be public trust property, it is difficult to see how it can be said that the title to that property is a particular, which was not the subject-matter of the inquiry under section 19. Moreover, under S. 22-A the Deputy or Assistant Charity Commissioner has discretion, he can refuse to make further inquiry. It is also important to note that the scope of the inquiry under S. 72 of the Act is a limited one, as is clear from the wording of section 72. It is also pertinent to note that there is no provision for issuing a public notice in any of th proceedings under the Act. In view of all this it cannot be said that S. 22-A provides a remedy for a person who is aggrieved by the findings at an inquiry under Ss. 18 and 19, may apply to the Charity Commissioner and have his claim adjudicated. It is however, important to note that the remedy provided by S. 70-A is not an adequate remedy, because under S. 70-A the Charity Commissioner is not bound to re-open the inquiry. It merely confers discretion on the Charity Commissioner to re-open the inquiry if he finds it expedient to do so. It cannot be said that question of title of persons, who were not parties to proceedings under Ss. 18 and 19 of the Act, was left merely on the discretion of the Charity Commissioner and that they would not have an unfettered right to have their title declared. Justice Shelat at Page 571 observes:
'. . . . . . .This is made clear by the provisions of section 80 which bar the jurisdiction of a Civil Court in the two categories of matters, viz., (1) those questions left under the Act to be decided by the Assistant or the Deputy Charity Commissioner under Sections 18 and 19, and (2) those which the Act has made final and conclusive under section 79(1) and section 21(2). The plaintiffs having had recourse to section 70 and not having followed up their remedy under section 72 are bound by the decision of the Charity Commissioner in their appeal before him.'
The last observation of Justice shelat will indicate that his decision was based upon the fact that the plaintiffs in that suit did not avail themselves of the remedy provided by section 72 of the Act. Hence, in my opinion, the decision of Justice Shelat does not support the contention advanced in these appeals.
(6) Here I may refer to the decision of this Court in First Appeal No. 353 of 1959 decided on 19-11-1962 (Bom). In his judgment Justice Patel observes;
'. . . . . . It is difficult, however, to assert that the Charity Commissioner have got exclusive jurisdiction where titles of third parties may be involved. While requiring them to decide statutory issues, if finality were to be attached to certain matters, we would be permitting them indirectly to decide very complicated and important questions of facts of heredity and legitimacy as well, which, in all probability, in view of the wording of section 19, may not have been intended. Even apart from this, the procedure prescribed is also a summary procedure, which is highly unsuited to any inquiry about the titles of third persons. . . . . . .'
With respect I agree with these observations. It is pointed out that these observations are obiter. Even so, the view expressed in these observations seem to be a considered view and I am in agreement with that view. As pointed out by Justice Patel, even though S. 70-A provides some sort of remedy to a person aggrieved by an inquiry under Ss. 18 and 19 of the Act to which that person was not a party that remedy seems to be inadequate. Unless the intention of the Legislature to exclude the jurisdiction of the Civil Court to decide titles of persons, who are not parties to the proceedings of the inquiry under Ss. 18 and 19 of the Act, is clear either by an express provision or by necessary implication, it cannot be held that suits like the present one are barred under section 80 read with S. 79 of the Act. It is urged that questions like the one that arises in these appeals may arise during inquiries under the Act. It is possible that such questions may arise, but the jurisdiction of the Civil Court cannot be held to be barred merely because such questions may arise during inquiries under the Act. Considering Ss. 79 and 80 and other relevant provisions of the Act, I am of the opinion that the question that arises in the present suit, viz., whether Ratnabai, the author of the trust, was capable of creating the trust in question cannot be said to be covered by section 79 of the Act. In any case the plaintiff in the present suit was not a party to the proceedings under Section 19 of the Act. By the present suit the plaintiff wants to establish his title to one-fourth share in the suit property on the ground that Ratnabai had no authority to gift the property in question and create a trust. For reasons indicated above, I am unable to hold that the present suit is barred under section 80 read with section 79 of the Bombay Public Trust Act, 1950.
(7) The learned appellate Judge has in a careful and considered judgment held that the present suit is not barred by section 80 of the Act. That view seems to be correct.
(8) I, therefore, confirm the order passed by the lower appellate Court and dismiss these appeals. Costs will be costs in the cause.
(9) Appeals dismissed.