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Charity Commissioner, Gujarat State, Ahmedabad Vs. Rustom Faramroz Dabbo and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 135 of 1977
Judge
Reported inAIR1979Guj168; (1979)0GLR635
ActsBombay Public Trusts Act, 1950 - Sections 36, 56-A and 80
AppellantCharity Commissioner, Gujarat State, Ahmedabad
RespondentRustom Faramroz Dabbo and ors.
Appellant Advocate A.J. Patel, Asstt. Govt. Pleader
Respondent Advocate B.J. Shethna, Adv.
Excerpt:
- - 56a would be similar to the procedure by originating summons in chamber of a judge on the original side of the high court for determination of questions like:.....rs. 40,000/-. it appears that the respondent-trustees had applied on 22nd march 1976 before the -charity commissioner, ahmedabad, for according sanction to the proposed sale. the charity commissioner was of the opinion that the will under which the trust was settled did not empower the trustees to sell the trust properties and therefore advise the trustees to obtain necessary directions in the matter by approaching the competent court. the respondent-trustees, therefore, by their application approached the district judge of valsad at navsari for necessary directions in the matter under section 56a of the bombay public trusts act. the learned district judge, while giving directions sought for, also granted the sanction to the transaction of sale in question since the charity.....
Judgment:
ORDER

1. By the last Will and Testament of one Rustamji Khurshedji Bamji of Navsari dated 24th August, 1910, a public trust was created called 'Rustamji Khurshedji Bamji Muktad Trust Fund, Navsari'.' The respondents herein are the trustees under the said will. The respondent-trustees executed a deed of conveyance in respect -of four buildings bearing Municipal Nos. 287, 287/1, 287/5 and 288 of S. No. 91 of Tika No. 13/2 situate near Golwad Naka in the town of Navsari to the Navsari Municipality on January 24, 1977 for a sum of Rs. 40,000/-. It appears that the respondent-trustees had applied on 22nd March 1976 before the -Charity Commissioner, Ahmedabad, for according sanction to the proposed sale. The Charity Commissioner was of the Opinion that the Will under which the trust was settled did not empower the trustees to sell the trust properties and therefore advise the trustees to obtain necessary directions in the matter by approaching the competent Court. The respondent-trustees, therefore, by their application approached the District Judge of Valsad at Navsari for necessary directions in the matter under Section 56A of the Bombay Public Trusts Act. The learned District Judge, while giving directions sought for, also granted the sanction to the transaction of sale in question since the Charity Commissioner also happened to be before the Court in pursuance of the notice issued on the application of the respondent-trustees seeking the directions in the matter. The learned District Judge therefore, by his order of September 6, 1976, granted permission to the respondent-trustees to sell the properties in question to the Navsari Municipality on the condition that Navsari Municipality pays Rs. 40,000/- as the sale price and on further condition that the said Municipality shall name the school as 'Bai Avabai Rustamji Khurshedji Bamji Girls' School' and the trustees were directed to invest the sale proceeds in the approved securities or with any Nationalised Banks. The Charity Commissioner, being aggrieved by this order, has come in revision before me.

2. The grievance of the Charity Commissioner is that the Court had no jurisdiction, power or authority to accord sanction to the sale transaction in question since it is within the exclusive jurisdiction of the Charity Commissioner under Section 36 of the Bombay Public Trusts Act, and secondly because the respondent-trustees had sought for the directions of the Court only in the matter of power of the trustees. I am of the opinion that this grievance is justified. Section 56A of the Bombay Public Trusts Act empowers the trustees to apply for directions and the material part, so far as relevant for the purpose of this revision, reads as under:

1156-A. (1) Save as hereinbefore provided in this Act, any trustee of a public trust may apply to the Court, within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or, administration of the trust property or income thereof, and the Court shall give its opinion, advice or direction, as the case may be there On:'

Section 56A is more or less similar to Section 34 of the Indian Trusts Act, 1882. Section 34 invests in trustee a right to apply to a competent Court for guidance on questions of immediate concern representing the administration of the trust property. The jurisdiction of Civil Court under Section 34 and Necessarily, therefore, under Section. 56A would be similar to the procedure by originating Summons in Chamber of a Judge on the original side of the High Court for determination of questions like: (a) ascertainment of any class of creditors, legatees, devices, next of kin or others, (b) the approval of any specific sale, purchase, compromise or other transaction, (c) directing the payment into court of any money actually in the hands of the trustees, (d) directing the trustees to do or abstain from doing any specified act which it is their duty to do or abstain from doing and (e) construction of the trust instrument. The District Court is a court of competent jurisdiction under the Indian Trusts Act and would have therefore power to issue directions granting approval of any specific transaction of sale or purchase to the trustees or requiring the trustees to do or abstain from doing any act which it is their duty to do or abstain or construing the trust instrument. As stated above, the competent Court would exercise the same power under Section M-A subject, however, to one limitation that the Court cannot give directions on questions which fall within the exclusive jurisdiction of the authorities under the Bombay Public Trusts Act in view of the provision contained about the ouster of jurisdiction of Civil Court under Section 80 of the Bombay Public Trusts Act. Section 36 of the Bombay Public Trusts Act enjoins the trustees to obtain the previous sanction of the Charity Commissioner to any transaction of sale, mortgage, exchange, gift of any immovable property or a lease for a period exceeding ten years in case of agricultural land, or for a period exceeding three years in case of non-agricultural land. The decision of the Charity Commissioner under Section 36(1) is made final subject to the decision in appeal at the instance of the aggrieved party. The net effect of Section 36 and Section 56A read with Section 80 is that the power of granting sanction to any transaction of sale, mortgage or exchange or gift of any unmovable property is within the exclusive competence of the Charity Commissioner and beyond the competence of Civil Court. The learned District Judge, therefore, exceeded his jurisdiction after having issued the directions investing the respondent trustees herein who were the applicants before him with the power to sell the property when he proceeded to accord the sanction to the sale in question. That power of according sanction is with the Charity Commissioner and by virtue of the provision contained in Section 80 of the Bombay Public Trusts Act, the Civil Court could not have granted sanction to any sale under Section 56A. The Civil Court could have granted directions only in the matter of powers to effectuate the sale. As a -matter of fact the application made by the respondent trustees before the Charity Commissioner is still pending and the Charity Commissioner has directed the respondents trustees to obtain the directions of the Court before according the sanction, because, the Will under which the was created did not empower the tees to transfer the trust property unless they are invested with powers by proper directions of trust and the competent court, there was no question for the Charity Commissioner to decide because the trustees lacked initially the authority to effectuate the transfer of the trust property.

3. The result, therefore, is that this revision application is allowed and the order of the District Court is modified so as to read that' the respondent-trustees will have the power to effect the transfer of the property in question by sale subject to the sanction if accorded, by the Charity Commissioner under Section 36 of the Bombay Public Trusts', Act. The order of the District Judge is therefore, modified accordingly and Rule is made absolute accordingly with the direction that the costs of the Charity Commissioner will come out of the estate.

4. Petition allowed.


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