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Shah Hiralal Virchand and anr. Vs. Patel Vithalbhai Vaghjibhai and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberA.F.O.D. No. 140 of 1960
Judge
Reported inAIR1961Guj189; (1961)GLR548
ActsBombay Public Trusts Act, 1950 - Sections 70, 72 and 73; Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 17
AppellantShah Hiralal Virchand and anr.
RespondentPatel Vithalbhai Vaghjibhai and ors.
Appellant Advocate N.R. Oza, Adv.
Respondent Advocate H.M. Choksi, Government Pleader,; S.N. Patel and; M.M. P
DispositionAppeal dismissed
Cases ReferredKallappa Joteppa Ajur v. Murigeppa Rudrappa Gugwad
Excerpt:
.....and 73 of bombay public trusts act, 1950 - power to dismiss suit on default not inherent power - deputy charity commissioner has no power to dismiss suit on default - deputy charity commissioner duty bound to decide matter according to material produced before time. - - that fourth point was that the appeal to the charity commissioner was bad for non-joinder of the other three trustees who were co-trustees with the present appellants in the trust created by parwati. ' analysing this section, it appears that the following ingredients must be satisfied in order that an application under that section may be made: oza contended that the right of making an application was given to an aggrieved party by section 72 of the act and, therefore, that right can be exercised by a party only if..........relating to the trust of bai dahi. the mailer was referred by the charity commissioner to the deputy charity commissioner. the appeal came on for hearing before the latter on 16-6-1955. on that day, the two respondents were absent, but the two appellants were present. because the two respondents were absent, the deputy charity commissioner dismissed the appeal for default of appearance of respondents nos. 1 and 2 with costs. aggrieved by this decision, the respondents nos. 1 and 2 made an application under section 72 of the bombay public trusts act, 1950, to the district court at baroda and prayed that the order of the deputy charity commissioner be set aside, and that it be held that the trust created by parwati did not possess ornaments worth rs. 8,000/-, but that the same.....
Judgment:

Miabhoy, J.

1. In order to dispose of this appeal, it is necessary to mention a few facts. There were two sisters, named Dahi and Parwati. Both these sisters were residing together in one house situated at Karjan. Both of them were widows and without any issue. Parwati executed a will on 2-6-1952 and Dahi executed a will on 12-2-1954. Parwati died on 14-4-1954 and Dahi died on 16-5-1954. It is common ground that both Bai Parwati and Bai Dahi created certain religious trusts in their respective wills. Several trustees were appointed by each of the sisters to administer her religious trust. Two of these trustees were common. After the deaths of these two sisters, these two trustees made applications to the Assistant Charity Commissioner, as they were required to do under the law, to register the trusts and showed in each application the properties which, according to them, were trust properties bequeathed by the two sisters- One of the items in each of these two applications was an item of ornaments. According to the two trustees who made the applications, each of the two sisters possessed at the time of her death ornaments worth Rs. 8,000/- and that these ornaments constituted part of the trust properties. The respondents Nos. 1 and 2 contested these allegations of the aforesaid two trustees. The latter two are appellants in this Court, The contention of the respondents Nos. 1 and 2 was that all the ornaments worth Rs. 16,000/- were part of the estate of Bai Dahi and all those ornamentsconstituted a part of the trust created by Bai Dahi and that none of the ornaments had belonged to Bai Parwati's estate and, therefore, the ornaments worth Rs. 8,000/- could not be shown as being a part of the trust created by Parwati. This dispute was considered by the Assistant Charity Commissioner. He decided by his order, dated 25-2-1955, that each of the two misters was possessed of ornaments worth Rs. 8,000/- and that the ornaments worth Rs. 8,000/- formed a part of the trust created by Parwati and that Dahi was not possessed of ornaments worth Rs. 16,000/-and, consequently, the trust created by Bai Dahi did not possess ornaments worth Rs. 16,000/-. The result of this Order was that the objection raised by the respondents Nos. 1 and 2 came to be dismissed and the statements made by the two appellants in their respective applications that each trust possessed ornaments worth Rs. 8,000/-were upheld. The two respondents felt aggrieved by this decision of the Assistant Charity Commissioner and they preferred an appeal to the Charity Commissioner under Section 70 of the Bombay Public Trusts Act, 1950. The appeal was preferred only from the proceeding relating to the trust created by Parwati. The respondents did not prefer an appeal from the order passed in the proceeding relating to the trust of Bai Dahi. The mailer was referred by the Charity Commissioner to the Deputy Charity Commissioner. The appeal came on for hearing before the latter on 16-6-1955. On that day, the two respondents were absent, but the two appellants were present. Because the two respondents were absent, the Deputy Charity Commissioner dismissed the appeal for default of appearance of respondents Nos. 1 and 2 with costs. Aggrieved by this decision, the respondents Nos. 1 and 2 made an application under Section 72 of the Bombay Public Trusts Act, 1950, to the District Court at Baroda and prayed that the order of the Deputy Charity Commissioner be set aside, and that it be held that the trust created by Parwati did not possess ornaments worth Rs. 8,000/-, but that the same belonged to the trust created by Dahi. The learned District Judge upheld that contention and he held that Bai Parwati had not left to the trust, ornaments worth Rs. 8,000/- and that all the ornaments worth Rs. 16,000/-, which the trustees had come into possession, belonged to the estate of Bai Dahi and, consequently, formed a part o the trust created by Dahi. It is from this order that the present appeal has been preferred by the two common trustees of the two trusts under Section 72, Sub-section (4) of the Bombay Public Trusts Act, 1950, hereafter called the 'Act.'

2. Mr. Oza, the learned Advocate for the two appellants, has raised three contentions in this Court. His first contention was that the application under Section 72 of the Act challenging the order passed by the Deputy Charity Commissioner was not maintainable under Section 72 (3) of the Act in the District Court. His second contention was that the contention now sought to be raised by the two respondents was barred by the principle of res judicata inasmuch as those two respondents had not preferred an appeal from the decision given by the AssistantCharity Commissioner in the proceeding relating to the trust of Bai Dahi, that that trust possessed ornaments only worth Rs. 8,000/- and not Rs. 16,000/-. His third contention was that the decision of the learned District Judge that the trust of Bai Parwati did not possess ornaments worth Rs. 8,000/- was wrong on the merits and that he should have held that that trust possessed those ornaments and that Bai Dahi's trust did not possess ornaments worth Rs. 16,000/- At the beginning of his arguments, Mr. Oza had also mentioned a fourth point, but, he did not choose to address us on that subject at all. That fourth point was that the appeal to the Charity Commissioner was bad for non-joinder of the other three trustees who were co-trustees with the present appellants in the trust created by Parwati.

3. So far as the first point is concerned, the argument is based upon the language used in Section 72 (1) of the Act. That sub-section is as follows:

'Any person aggrieved by the decision of the Charity Commissioner under Sections 40, 41, 70 or 70-A or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the court to set aside the said decision.'

Analysing this section, it appears that the following ingredients must be satisfied in Order that an application under that section may be made: (i) That there must be a decision of the Charity Commissioner;

(ii) That there must be a person aggrieved by that decision;

(iii) That that decision must he under one or the four sections mentioned therein, namely, Sections 40, 41, 70 or 70-A;

(iv) Or, the decision must be on one of the two questions mentioned in the section, namely, the question whether a trust exists arid whether such trust is a public trust or whether any property is the property of such trust. The contention of Mr. Oza is that, having regard to the facts of the present case, there was no decision of the Deputy Charity Commissioner under any of the aforesaid four sections, nor was there any decision on any of the two questions mentioned in the section. There is no dispute whatsoever that there was no decision given by the Deputy Charity Commissioner either under Sections 40, 41 or 70-A. There is a dispute between the parties as to whether there was or was not a decision under Section 70. There is also no dispute that there was no question in the proceedings before the Deputy Charity Commissioner as to whether a trust existed and whether such trust was a public trust. But, there is a dispute between the parties as to whether the question as to whether any property is the property of such trust, was involved or not. Therefore, the point raised by Mr. Oza is to be decided with reference to the question as to whether there was or was not a decision under Section 70, or whether there was or was not a decision on the question whether any property was the property of a trust. The contention of Mr. Oza is that the Deputy Charity Commissioner had neither given a decision under Section 70, nor had he given any decision on the question whether any property was the property of a trust. His contention is that the appeal was disposed of by the Deputy Charity Commissioner for default of appearance and, therefore, the appeal was disposed of without the Deputy Charity Commissioner having given any decision as to whether the ornaments in question did or did not belong to the trust created by Parwati.

4. Mr. Oza drew our attention to Sub-section (3) of Section 70, which mentions the various orders which could be passed by a Charity Commissioner in appeal and he contended that the power of dismissal of an appeal for default of appearance was not mentioned therein and, consequently, it cannot he stated that there was any decision given by the Charity Commissioner under Section 70 of the Act. Therefore, the contention was that, in the present case, the Deputy Charity Commissioner had not given any decision under Section 70 and, consequently, the learned District Judge had no jurisdiction to entertain, under Section 72 of the Act, the dispute whether the Ornaments worth Rs. 8,000/- were part of the trust created by Parwati. Mr. Oza contended that the right of making an application was given to an aggrieved party by Section 72 of the Act and, therefore, that right can be exercised by a party only if the conditions mentioned in that Section are satisfied, and, as, in the present case, those conditions were not satisfied, the application under Section 72 was not tenable.

5. The question which requires to be answered is whether the order passed by the Deputy Charity Commissioner dismissing the appeal for default of appearance does or does not come within the purview of the expression 'the decision of the Charity Commissioner ..... undersection 70 or on the question ..... whetherany property is the property of such trust.'

6. In order to examine the validity of the submissions of Mr. Oza, it is necessary to examine the provisions of Section 70. Sub-section (1) provides for an appeal being preferred to the Charity Commissioner and mentions the various findings or Orders which can form the subject-matter of an appeal to him. One of the findings which can be challenged under this subsection is a finding under Section 20 A reference to Section 20 would show that that section empowers the Deputy or Assistant Charity Commissioner to record his findings on the matters mentioned in Section 19 and a reference to Section 19 shows that one of the matters which is referred to therein is the determination of the question as to whether any property is the property of a trust. Therefore, there is no doubt that an appeal is competent to the Charity Commissioner under Section 70 (1) of the Act. Sub-section (2) of Section 70 provides for the period of limitation for preferring an appeal. Then comes Sub-section (3), which mentions the powers which a Charity Commissioner may exercise in dealing with an appeal preferred under Sub-section (1). That sub-section is in the following terms:

'The Charity Commissioner may, after hearing the appellant or any person appearing on his behalf, for reasons to be recorded in writing either annul, reverse, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence.'

The contention of Mr. Oza was that the Order which was actually passed by the Deputy Charity Commissioner was not one of the kinds of orders mentioned in this sub-section. He contended that the actual order was neither one of annulment, reversal, modification or confirmation of the finding recorded by the Assistant Charity Commissioner, nor had the Deputy Charity Commissioner . directed the' Assistant Charity Commissioner to make further enquiry or to take additional evidence. Therefore, the contention was that the order of dismissal was not one under Sub-section (3) of Section 70. Mr. Oza's contention was that the order which was passed was one under Order 41, Rule 17 of the Civil Procedure Code.

7. On the other hand, the contention of Mr. Patel was that the Deputy Charity Commissioner had no power to pass an order under Order 41. Rule 17 of the Civil Procedure Code.

8. Section 76 of the Act provides that the Civil Procedure Code shall apply to all proceedings before the Court under the Act. The term 'Court' has been defined in Section 2, Sub-section (4) of the Act and the definition states that ' 'Court' means in the Greater Bombay, the City Civil Court and elsewhere, the District Court.' Therefore, it is quite clear that the Civil Procedure Code applies only to proceedings before the District Court and not before the Charity Commissioner. Mr. Patel drew our attention to Section 73 of the Act which states that the officers acting under the Act shall have certain specific powers under the Civil Procedure Code on certain specified matters. These do not include the power of dismissing a proceeding or an appeal for default of appearance. Mr. Oza was not able to draw our attention to any other provisions of the Act applying Civil Procedure Code to proceedings before the Charity Commissioner. On the contrary, the provisions of Section 73 would show, by implication, that the whole of the Code of Civil Procedure was not applicable to the proceeding before these officers and that that! Code only applied to certain specific matters. That being the position, in our judgment, it is quite clear that Order 41, Rule 17 of the Civil Procedure Code was not applicable to the proceedings before the Charity Commissioner.

9. This raised a further question as to whether the Deputy Charity Commissioner had or had not an inherent power of dismissing an appeal for default of appearance. Mr. Oza's contention was that every Tribunal bad such an inherent power. However, this contention is negatived by a decision of the Bombay High CourtIn the case of Kallappa Joteppa Ajur v. Murigeppa Rudrappa Gugwad, reported in 57 Bom LR 178. In this case, their Lordships had to consider whether an order of dismissal made in an appeal preferred under Section 74 of the Bombay Tenancy and Agricultural Lands Act was valid. Section 74 of the Tenancy Act enacted that, to such appeals, the provisions of Chapter X1I1 of the Bombay Land Revenue Code, 1879, would apply, and the material section in that Chapter was Section 209. The substance of that section has been set out in the report at pages 178 and 179. We have ourselves looked into the language of Section 209. In substance, the language of that section is the same as the language used in Sub-section (3) of Section 70. The powers, therefore, which are conferred upon the appellate Court exercising power under Section 74 of the Bombay Tenancy and Agricultural Lands Act are the same as the powers conferred upon the Deputy Charity Commissioner under Section 70 of the Act. Having regard to the aforesaid language, their Lordships came to the conclusion that the appellate authority in that case had no power of dismissing an appeal for default of appearance, but that it was its duty to decide the appeal on merits even if the appellant was not present on the date of the hearing of the appeal. Then, turning to the question as to whether an appellate authority has or has not any inherent power of dismissing an appeal for default. Their Lordships held as follows:

'It is sometimes forgotten that powers to dismiss appeals for default are not powers which are inherent in a tribunal. It is precisely because they are not inherent that the Civil Procedure Code has made special provision for dismissal of appeals for default'.

Under the circumstances, we are not in a position to uphold the contention of Mr. Oza that either the Civil Procedure Code applies to appeal proceedings before the Charity Commissioner or that that officer has the power of dismissing an appeal for default. In our judgment, the Deputy Charity Commissioner has no such power and it was his duty to decide the matter on the materials before him.

10. It is in the light of the above legal position that the expression used in Section 72 of the Act on which Mr. Oza relies has got to be construed. The expression which is to be construed is 'the decision of the Deputy Charity Commissioner .....under Section 70 or on thequestion .....whether any property is the property of such trust'. Prima-facie, Mr. Oza appears to be right that no decision under Section 70 has been recorded inasmuch as Sub-section (3) of Section 70 does not state in specific terms that an appeal may be dismissed for default. But, still the question for consideration is whether the order passed by the Deputy Charity Commissioner cannot be regarded to be a decision on the question whether any property is the property of such trust. Mr. Oza's contention was that the decision of the Deputy Charity Commissioner was not on merits and, therefore, it cannot be said to be a decision on the aforesaidquestion. But, in our judgment, it would not be proper to equate the aforesaid expression 'decision on the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust' with the expression 'decision on merits'. What we have got to look for is not whether an actual decision has been given, whether a property is the property of any trust, but whether, in effect and in substance, a decision of the aforesaid type has come to be recorded by the Deputy Charity Commissioner. Now, having regard to the fact that the Deputy Charity Commissioner dismissed the appeal for default, it is quite clear to our mind that, though he has not actually decided that the property was the property of Parwati's trust, in effect and in substance, that is the decision which has come to be recorded. It he had the power of dismissing an appeal for default of appearance, the matter might have been different. However, it is not necessary for us to examine as to what the effect of such an order then would have been. But, if the law does not give the Deputy Charity Commissioner the power of dismissal for default but obliges him to decide the dispute irrespective of the appearance of the parties and, if, in breach of such an obligation, the Deputy Charity Commissioner does happen to pass an order of dismissal, then, it is quite clear to our mind that the order stands on a much worse footing than if an actual decision had been given on merits. Under the circumstances, in our judgment, it would not be proper to give a narrow, restricted and literal meaning to the aforesaid expression. In our judgment, the expression must be construed in such a manner as to harmonize with the objection which the section has in view. The object of the section obviously is to get the matters referred to therein ultimately decided, if the parties so choose, by a Civil Court and not by the commissioner. The intention is quite clear that the decision of a Commissioner on the matters referred to in the section should not be given finality if the matters are carried to the Civil Courts. Under the circumstances, if, in breach of his duty, the Commissioner dismisses an appeal, he must be regarded as having constructively decided the question involved in the appeal. If this view is not upheld, it is obvious that injustice would be done to the appellant and an absurd result would follow. An order of the Commissioner dismissing an appeal for default would have the seal of finality though his order on merits could never have had such a seal and the Commissioner would he able to impress his decision with that seal by committing a breach of his statutory duty. In that view of the matter, in our judgment, the order passed by the Deputy Charity Commissioner must be regarded to be a decision on the question whether the property was or was not the property of trust of Parwati. Therefore, in our judgment, the application under Section 72 of the Act was maintainable.


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