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Adishayya Kadayya Kadadevaru and anr. Vs. Dundayya Gurushiddayya Hiremath - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 968 of 1978
Judge
Reported inAIR1983Kant79; 1982(1)KarLJ402
ActsBombay Public Trusts Act, 1950 - Sections 19, 22, 22A, 72(4), 79, 79(1) and 80; ;Code of Civil Procedure (CPC), 1908 - Sections 9 and 107
AppellantAdishayya Kadayya Kadadevaru and anr.
RespondentDundayya Gurushiddayya Hiremath
Appellant AdvocateB.V. Jigjinni, Adv.
Respondent AdvocateN.A. Mandagi, Adv.
Excerpt:
.....part of claim of plaintiff besides being sham and illusory was not supported by specific facts - held, therefore defendants though entitled to unconditional leave to defend, same is restricted to disputed portion. - and further he held that the applicant failed to establish that they were trust properties. 8. as against that, the learned counsel, sri mandgi, appearing for the respondent in this appeal, strenuously urged before us that the learned district judge was perfectly justified in observing that the question of title could not be gone into even in a proceeding u/s......or charity commissioner, under the act, could not decide the question whether a property is public trust property? 2. whether this court has no powers of allowing the appeal and remanding the case in appeal u/s. 72(4) of the act? 10. in order to appreciate the contentions raised before us, it would be necessary to read the power and functions of assistant charity commissioner and charity commissioner, conferred in the act. among other things, s.79(1) of the act reads :'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 as provided by this act.'11. section 72 (2) of the act reads :'the decision of the deputy.....
Judgment:

Sabhahit, J.

1. This appeal under Section 72(4) of the Bombay Public Trusts Act, 1950, (hereinafter referred to as the 'Act') is by Trustees and is directed against the judgment and order dated 10-4-1978, passed by the Principal District Judge, Belgaum, in Miscellaneous Application No.222/1977, on his file made before him under Section 72 (2) of the Act.

2. The brief and relevant facts necessary for the appreciation of the facts and questions in this appeal are :

3. Adishayya kadayya Kadadevaru by an application, dated 27-6-1968, before the Assistant Charity Commissioner, Belgaum, under Sec 22 of the Act, prayed for inclusion of 20 items of properties shown in the application as the properties belonging to the Trust, namely, Sri Kadasiddeshwar Temple of Konnur village. The same was resisted by Dundayya, the applicant before the District Judge. The Assistant Charity Commissioner, Belgaum, held that properties are Trust properties. That was confirmed by the Charity Commissioner. Aggrieved by the said order, an application was made by the applicant, under Section 72 of the Act, before the District Judge.

4. The learned District Judge raised the following points as arising for his consideration.

1. Whether the opponent No.1 proves that the properties TPC Nos.124 and 127/4 of Konnur are the trust properties of Sri Kadasiddeshwar Dev Muth at Konnur?

2. What order?

5. The learned District Judge, re-assessing the evidence, held that the Assistant Charity Commissioner and Charity Commissioner had no jurisdiction to decide the question of title and in that view, according to him, the application was not maintainable. He has also held further, that in the application under Section 22 of the Act, the question whether they were Trust properties or not could not be gone into by the Assistant Charity Commissioner; and further he held that the applicant failed to establish that they were trust properties. In that view, he allowed the application on setting aside the order passed by the Assistant Charity Commissioner, confirmed by the Charity Commissioner. Aggrieved by the said Order, the Trustees have come up before this Court u/s 72(4) of the Act, with the above appeal.

6. During hearing, the learned counsel, Sri B.V. Jigjinni, appearing for the appellants, gave an application praying for amendment of the original application for converting it into an application u/s 22-A of the Act, as the application was given originally only u/s 22 of the Act.

7. The learned counsel for the appellants further submitted that in the interest of justice the amendment application should be allowed and the appeal allowed and the case remitted back to the Assistant Charity Commissioner to hold fresh enquiry giving opportunity to the parties while holding enquiry u/s.22-A of the Act.

8. As against that, the learned counsel, Sri Mandgi, appearing for the respondent in this appeal, strenuously urged before us that the learned District Judge was perfectly justified in observing that the question of title could not be gone into even in a proceeding u/s.19 or S.22-A of the Act and as such the prayer for amendment could not be considered and accepted. He further submitted that the scope of enquiry u/s. 72 (4) of the Act was limited and this Court sitting in appeal could not exercise powers which could not be exercised by the District Judge, u/s. 72(2) of the Act.

9. The points, therefore, that arise for our consideration in this appeal are :

1. Whether the District Judge was justified in observing that the Assistant Charity Commissioner or Charity Commissioner, under the Act, could not decide the question whether a property is Public Trust Property?

2. Whether this Court has no powers of allowing the appeal and remanding the case in appeal u/s. 72(4) of the Act?

10. In order to appreciate the contentions raised before us, it would be necessary to read the power and functions of Assistant Charity Commissioner and Charity Commissioner, conferred in the Act. Among other things, S.79(1) of the Act reads :

'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 as provided by this Act.'

11. Section 72 (2) of the Act reads :

'The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the High Court in appeal, be final and conclusive'.

1983 Karnataka/6 IV G-20-21 Section 80 of the Act further ousts the jurisdiction of the Civil Court in these matters; it reads :

'Save as expressely provided in this Act, no civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealth with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive'.

Thus, reading Ss.79 and 80 of the Act together, it becomes manifest that it is the exclusive jurisdiction of Deputy or Assistant Chairty Commissioner to decide whether a trust exists and such trust is a public trust or a particular property of such trust, Civil Court has no jurisdiction to decide upon these questions.

12. Under S.19 of the Act, Inquiry for registration by the Deputy or Assistant Charity Commissioner is contemplated. It reads :

'On the receipt of an application under S.18 or upon an application made by any person having interest in a public trust or on his own motion, the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed manner for the purpose of ascertaining :

(I) Whether a trust exists and whether such trust is a public trust,

(ii) Whether any property is the property of such trust;

(iii) Whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction,

(iv) The names and Addresses of the trustees and manager of such trust;

(v) the mode of succession to the office of the trustee of such trust,

(vi) The origin, nature and object of such trust,

(vii) The amount of gross average annual income and expenditure of such trust, and

(viii) any other particulars as may be prescribed under sub-section (5) of S.18.' Thus, it becomes clear that whenever an application is made by any person having interest in a public trust or on his own motion, it is one of the duties of the Deputy or Assistant charity Commissioner to find out whether any property is the property of such public trust. thus reading S.79 and 80 in conjunction with S.19 of the Act, we have no hesitation to hold that one of the powers specifically conferred under the Act, upon the Deputy or Assistant Charity Commissioner is to find out whether any property is the property of public trust in question and the jurisdiction of the Civil Court is ousted to that extent expressly u/s 80 of the Act.

13. Now, S.22-A is a section which is incorporated by an Amending Act 59 of 1954, before State Reorganization which reads :

'If at any time after the entries are made in the register under S.21 (22 or 28) 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 S.19, or sub-section (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 inquiry in the prescribed manner, record his finding 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 Ss. 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.'

14. The learned counsel for the respondent as stated above strenuously urged before us that the question of title in dispute or question of his title cannot be gone into at all by the Deputy or Assistant Charity Commissioner u/s. 19 of the Act or u/s. 22-A of the Act. He very much relied on a Full Bench decision of Bombay High Court in Keki Pestonji Jamadar v. Khodadad Merwan Irani : AIR1973Bom130 . for the above preposition advanced by him before us.

15. As against that the learned counsel for the appellants submitted.


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