1. These appeals are directed against the order dated 7-3-77 passed by the District Judge, North Kanara at Karwar in Miscellaneous Application Nos. 49 to 53 of 1972, respectively. These miscellaneous applications were filed by the five appellants under Section 47 of the Bombay Public Trusts Act (hereinafter referred to as 'the Act').
2. Each one of the appellants requested the District Judge that he be appointed a trustee for the administration of Shri Mahableshwar Dev Gokarn Temple as the two respondents, who were functioning as trustees had incurred disqualification under one or the other Clauses available in Section 47 (1) (a) to (h) of the Act. Each one of the appellants narrated in his application certain details as to how he was duly qualified to be appointed as a trustee.
3. By the order dated 8-3-1972, the then District Judge, allowed the applications and appointed them as trustees, along with 2 respondents in these appeals, thereby making the total number of trustees as seven. It is worthwhile to note here, that on the enquiry held by the Charity Commissioner as required by the provisions of the Act, the number of trustees functioning prior to 1951 was three as available in Ex. D5, the concerned extract from the entry of the registers maintained by the Charitable Committee. The respondents wherein preferred M F. As 160 to 165 of 1973 against the order dated 8-34972 passed by the then District Judge, North Kanara, Karwar. This Court by its order dated 8-5-1973 following the decision in Subbarayappa Bhat -v.- Govinda Ganapath Rao and others (M.F.A, 16 of 73) held that the order passed by the then District Judge was bad in law in view of the non-compliance of the provisions of Section 47(2) of the Act, as there was no finding in regard to the minimum number of trustees required for administering the said Trust and which rinding alone provided the requisite jurisdiction to the District Court to pass an order of appointing trustee or trustees in exercise of the power vested in it by Section 47 (3) of the Act. It is worthwhile to note here that in Subbarayappa's case an order of remand was passed and after remand the matter reached this Court in the form of M. F. As. That matter has been since disposed of by a Division Bench of this Court on 27-7-1983. The decision is reported in 1983 (2) Kar. L.J, 5211 wherein the position in law as per Section 47 (2) of the Act, as laid down earlier, has been reported.
4. After the matter was remanded, the five appellants got their applications amended pursuant to the liberty reserved by this Court while, passing the order of remand. The salient facts brought out in the amendment were in paragraph 3 (a) newly added. It has been averred in this amended application that in 1842 there were 11 trustees; the number was reduced to 2 in 1865. Thereafter during the years 1890 to 1920 the number of the trustees oscillated between 11 to 14 and later on by 1937-38 it was finally reduced to 8. It is undisputed, we note at this stage, that by 1950 the number of trustees were 3 being further reduced by 5. The further averment by way of amendment, as made by the appellants,1. Subbaraya Narayana Bhat vs. Govind Ganapathi Rao and Anr., 1983 (2) K.L.J. 521is that there is an immemorial, continuous and well recognized reasonable custom of maintaining the initial number of 11 or the minimum of 8 persons as trustees and that custom prevailed till atleast 1937-38.
5. The respondents have contested the claims of the appellants on various grounds. But, the main ground is that the appellants themselves have incurred disqualification within the ambit of one of the Clauses 47 (1) (a) to (h) of the Act.
6. Section 47(2) of the Act, as has been well-settled, lays down the conditions precedent for entertaining an application under Section 47.The ingredients of Section 47(2) provide that certain jurisdictional facts are to be established before the District Court gets jurisdiction to entertain an application under Section 47. The main ingredient is that there should be shortfall in the minimum number of trustees required for the administration of the Trust. It is only when there is such short-fall or the minimum number is reduced, that the District Court is enabled to exercise its power under Section 47(3) of the Act and fill up such vacancy so as to bring up the number to the minimum.
7. Section 47 (2) lays down that it must be proved before the District Judge that the minimum number of Trustees required for the administration of the Trust is so found either in the instrument creating the Trust or scheme of the Trust for the administration of the Trust, or order or decree of the Court in regard to the administration of the Trust or because of usage or custom, pertaining to the administration of the Trust.
8. It is an admitted fact, that the Trust in question had no instrument or scheme and that there was neither an order nor a decree of a Court, for the administration of the Trust in question, Therefore, the appellants were required to establish that the fixed minimum number of trustees required to administer the Trust in question stands at a particular figure as per usage or custom relating to the administration of the Trust. This is exactly what they were required to do after the remand and because of that they have got their applications amended by inserting paragraph 3A in the applications. Some evidence has been adduced by the appellants after remand also.
9. At , this stage a point arose during the course of the argument, to the effect that Section 47 of the Act does not appear to empower the Court to remove a trustee who is already functioning. We do not see much in this point because reading of Section 47, as a whole, makes it abundantly clear that whenever a disqualification enumerated in Clauses (a) to (h) of Section 47 (1) of the Act is incurred by a Trustee, he ceases to function as such, and his position as trustee is deemed to be vacant because Section 47 (3) lays down that it is only a vacancy that has to be filled by a Court. In fact the position in law, as is clear to us, available in Section 47 of the Act is that Sub-section (1) of Section 47 provides for situations as to when and how vacancies occur in relation to trustees functioning as such in regard to a Trust in question. Therefore, we hold that whenever a trustee incurs a disqualification falling within any of the Clauses of Section 47 (1) (a) to (h) of the Act, automatically there will be a vacancy and if as a consequence the existing number of Trustees falls short of the minimum number of trustees, then under Sub-section (3) of Section 47 of the Act, the Court has the power to fill up the vacancy so as to bring the number to the required minimum.
10. Now it has to be seen whether the appellants have successfully established, that as per the usage or custom pertaining to the Trust, the minimum number of Trustees required for administration is a determined figure.
11. To examine this question, we proceeded on the presumption that they have been successful in establishing that in 1842 there were 11 trustees and the number was reduced by 8 in 1865 and thereafter the number oscillated between 11 to 14 between the years 1890 to 1920 and in 1937-38 the number was 8. In the year 1950-51 the number was 3. Now the number is 2.
12. The appellants have relied on the evidence of P.Ws. 1 to 5 while the defendants have relied on the evidence of D. W. 1. The appellants have also relied on various documents available at Exs. P 1 to P 20, while the respondents relied on Ex. D 1 to D 23.
13. Even if it is deemed that the appellants have satisfactorily established that the number of trustees functioning at various times was as narrated in the preceding paragraph that fact by itself, cannot, in law, lead to an inevitable inference that either the minimum number of trustees required for administering the Trust was 8 or 11 or 8.All that can be held to have been established is that at a particular time 8 trustees administered the trust while at some other point of time 11 to 18 trustees have administered the Trust. It is available that by 1950-51 3 trustees administered the Trust and now 2 trustees have been administering the Trust. The argument advanced on behalf of the appellants that the minimum number of trustees required for administration must have been held to have been proved as 8 by establishing usage or custom, cannot be accepted because it can be equally held that it should be 2 or 3.
14. In this connection Sri B. P. Holla, learned Advocate appearing on behalf of the appellants, vehemently urged that when it is shown factually that for a long period of time viz., 1842 to 1937-38 the minimum number of trustees administering the Trust was 8, it would be reasonable and in fact inevitable to conclude that the minimum number required for administering the Trust, in question, must be 8. He, in this connection drew our attention to Exhibit P 22(a) a resolution dated 25-3-1912 of the Temple Committee which was concerned with the administration of not only this Trust but other temples also. In this very connection he pointed out that whatever might be the procedure in which the Trust was managed prior to 1917, the Board of Revenue came to be entrusted with the administration of this Trust by Madras Regulation No. 7 of 1817. He read Clauses Nos. 2, 3, 6, 7 and 8 and also 10 to lay emphasis on the earlier part of his argument by making the Court to take into consideration that the local agent under Clause 7 of the said regulation was none other than the Collector who was, in view of Clause 10 of the said regulations,required to look into the custom and usage before recommending who was to be a trustee;who was to be appointed a trustee and how many vacancies had occurred. He urged, in view of this position in law, the argument advanced by him earlier,on the basis of facts that had transpired between 1842 to 1938 in regard to the minimum number of trustees administering the Trust, acquires considerable force Further he pointed out that these regulations were replaced by the Religious Endowments Act 1863 which is a Central Act where the power of Board was transferred to the Temple Committee, and the Temple Committee was required to enquire into the particulars of trustees as per Section 6 and consider the vacancy occurring in the office of any trustee, manager or superintendent as provided under Section 5 of the Act. Superficial examination of this line of argument shows that there appears to be some force. But when the said provisions of the regulations and the 1863 Act are read it is clear to our mind that nowhere has it been provided that the Temple Committee should at any stage fix the minimum number of trustees required for administration of the trust and that the vacancy, if any, has to be filled up. Therefore, this argument has to fail.
15. Sri Holla pointed out that in view of the Temple being very ancient one and having a very old history, it was practically impossible for any person to establish any kind of custom or usage that existed to show that the minimum number of trustees required for administration is such and such. This difficulty, even though it exists, will not have any effect on the burden of proof to be discharged by the appellants concerned.
16. The foregoing reasons show that the conclusions of the Learned District Judge, that the material, made available to him was not sufficient to satisfy him on this point, cannot by any means, be said to be in any way atleast unreasonable so as to make this Court scrutinise the material in detail. In this very connection we desire to point out that we did peruse the evidence of witnesses P.Ws. 1 to 5. Not even one witness has spoken to usage or custom that existed in the administration of the Trust specifically on the number of trustees required under Section 47 of the Act. When that is so, the conclusion arrived at by the Learned District Judge is an inevitable conclusion.
17. Hence, we find no substance in these appeals and dismiss them. No order as to costs.