1. These two, appeals arise out of the order Passed by the learned Extra Assistant Judge, Baroda in Misc. Civil Applications Nos 138 and 139 of 1967 against the orders passed in Revision Applications Nos. 13/67 and 94 of 1967 passed by the learned Joint Charity Commissioner.
2. The facts leading to these appeals briefly stated are as under :-
Narayandev Maharaj Mandir at Varnama. Ta. Baroda is a Public trust registered under No. A 19 (Baroda). The application for its registration was made in 1952 by Bai Nathi widow of Fulji Nathuram and Laljibhai Nagjibhai who has been shown in the application as two trustees of that trust. The mode of succession to the trusteeship shown by these two trustees in the application was 'as appointed by the village people.' The Assistant Charity Commissioner registered the trust on 7th April 1953 and held inter alia that these two Persons were the trustees and that the mode of succession was as shown in the application. Laljibhai Nagjibhai died On 23-12-1960 and in his place the name of his son Kantilal Laljibhai was entered by the Change Report No 254 of 1961. It was shown in this change report that he was appointed by the village people. Thereafter on 28th May 1963 Bai Nathi died. A dispute arose on her death regarding the vaccine caused by her death. Change Report No. 585 of 1963 was filed on 17-8-1963 for entering the name of Bai Annapurna who is daughter of Nathi's brother and having been appointed by the village people as per mode of succession Kantilal of Laljibhai opposed this change report contending that the village people had appointed him as trustee in place of Bai Nathi and so he was the sole trustee of the trust. On 11-4-1966 the Assistant Charity Commissioner granted this change report. Against the order of the Assistant Charity Commissioner Passed on this change report, Kantilal filed an appeal to the Charity Commissioner being Appeal No. 27/66. This appeal was rejected by the learned Charity Commissioner on 9-5-1962. He held that Bai Annapurna is the only appointed trustee as per the mode of succession recorded in the registration inquiry. On 21-7-1966, an application , under Section 22-A being Change Inquiry No. 296 of 1966 was made by original applications Nos. 2 and 3 who are the brother and mother respectively of Kantilal Laljibhai for a further inquiry regarding the mode of succession to trusteeship. Their case was that the mode of succession as stated by Bai Nathi and Laljibhai was not correctly shown. They went to the extent of alleging fraud on the part of these trustees in getting mode of succession wrongly recorded. Their contention was that the mode of succession was in fact hereditary in the family of Narbheram. Applicant No. 1 who was also in this family applied for joining him in the above mentioned application, He was ordered to be joined as an applicant. He also alleged fraud on the part of the two trustees, who got this trust registered. They produced certain documents showing that in the Past the mode of succession was held to be hereditary and not as appointed by the village people. During the pendency of this application under Section 22-A the original applicants filed application under Section 70-A on 23rd February 1967 to the commissioner praying that the Charty Commisioner should revise the order passed under 19 regarding the mode of succession as important evidence regarding the mode of succession way not placed before the Assistant Charity Commissioner when this trust was got registered. On 30-6-1967 the Assistant Charity Commissioner rejected the application under Section 22-A on the Preliminary issue of jurisdiction holding that as the mode of succession had already been decided by his Predecessor in 1958 this matter could not be reopened on mere application of the interested parties. Against the order Passed by the Assistant Charity Commissioner an appeal No. 94/67 was preferred before the Charity Commissioner. Both the appeal and the revision application were heard together by the learned Joint Charity Commissioner. From the perusal of the documents Prima the learned Joint Charity Commissioner was of the view that the mode of succession to trusteeship was hereditary and not as admitted by village People. In his opinion both under Sections 22-A and 70-A of the Public Trusts Act, he was competent to hold a fresh inquiry with regard to the mode of succession in the light of the documents produced before him. He therefore, allowed the appeal and the revision application and sent back the papers to the Assistant Charity Commissioner for holding a fresh inquiry with regard to the mode of successions after cancelling his order in that connection. Against the order of the Charity Commissioner Passed in the revision application, as well as the appeal, the applications were Preferred in the District Court. Baroda under 72 of the Act which were heard by the learned Extra Assistant Judge who dismissed the said application and confirmed the order of the Joint Charity Commissioner. Against that order the present two appeals have been preferred.
3. Mr. C. K. Patel the learned Advocate for the appellants in both these appeals submitted that as the Particular was inquired into by the Assistant Charity Commissioner and a finding recorded, it would not be open to him under Section 22-A of the Act to go into that question again. He submitted that S. 22-A would be applicable in a case where any particular relating to any public trust was not the subject-matter of the inquiry under 19 are sub-section (3) of Section, 22 as the case may be. In the instant case he submitted that the mode of succession was a subject-matter of inquiry under 19 of the Act and the Assistant Charity Commissioner having, recorded his finding that the mode of succession was appointment by village people, no fresh inquiry under S. 22-A of the Act could be held. With regard to revision application under Section 70-A of the Act he urged that as no appeal was preferred against the order of the Assistant Charity Commissioner registering the trust and recording a finding that the mode of succession was by appointment of village people the said finding should not be disturbed under the powers vested in the Charity Commissioner under Section 70-A to issue or revise the order of the Assistant Charity Commissioner or the Deputy Charity Commissioner as the Case may be.
4. In respect of his first submission that as the particular relating to the Public trust was already the subject matter of the inquiry under 19 no further inquiry could be made. Mr. Patel relied on the case of Shukla Ramanujacharya Govindacharya v. N. N. Shah, (1972) 13 Guj LR 493 wherein it was observed that
'Section 22-A of the Bombay Public Trusts Act applies to cases where any Particular relating to any Public trust was not the subject-matter of the inquiry under 19 or sub-section (3) of 22, as the case may be and in respect of which an inquiry is required to be made. It is only in such cases that Section 22-A empowers the Deputy Charity Commissioner to make further inquiry into the matter, if the subject matter of the inquire was registered as a Public trust property, no fresh inquiry in relation thereto can be made by the Deputy Charity Commissioner. 22 presupposes the occurrence of a charge and an inquiry to be instituted in order to determine the facts relating to change and then to cause the necessary amendment to be made in the public trust register pursuant to the finding recorded in relation to a change. 22 does not contemplate an inquiry to be made by the Deputy Charity Commissioner for bringing about a change.'
So far as the observations that Section 22-A applies to the cases where any Particular relating to any public trust was not the subject-matter of the inquiry under 19 or sub-section (3) of 22 as the case may be are concerned, with respect I am in complete agreement. However, what is that particular which could be said to be the subject-matter of inquiry under 19 is a moot point. In this judgment it is not clearly stated as what the words any particular in relation to a public trust indicated. Two previous decisions of this High Court do not seem to have been cited before the learned Judge in this case. It is, therefore, necessary to refer to the Previous decisions in order to understand the correct interpretation about the word 'particular' in relation to a public trust. In the case of Kuberbhai Shivdas v. Mehta Purshottamdas Kalvandas, (1961) 2 Guj LR 564. Mr. Justice J. M. Shelat (as he then was) held
'though retaining the final and conclusive character of the finding and entries made by the Deputy or Assistant Charity Commissioner, under Sections 20 and 21 of the Bombay Public Trusts Act, Sections 22 and 22-A make Provisions for changes to be made when such changes appear to be necessary either as a result of a change having occurred subsequent to the date of the entries or as a result of some particular having been left out for consideration in the previous inquiry. 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 19 of the Act. The word 'particular' in Section 22-A of the Act would mean any information or detail as to a trust, for example, information regarding suppression of a Particular for the purpose of avoiding a Property to be declared to be Property belonging to a public trust.'
It will thus be seen that the word 'particular' as interpreted by Justice Shelat would include any information or detail as to a trust. Now, in the instant case the respondents have produced documents showing that there were orders of competent authorities holding that the mode of succession to trusteeship was hereditary and not appointment by village people. These documents were not produced before the Assistant Charity Commissioner in the inquiry made by him under 19 of the Act by Bai Nathi. No one had appeared before the Assistant Charity Commissioner in that inquiry and on the submission made on the application that the mode of succession was 'appointment by village people', the learned Assistant Charity Commissioner had recorded a finding to that effect. No appeal was preferred against this order before the Charity Commissioner. Thus so far as Section 70-A is concerned it would be open to the Charity Commissioner to revise the order passed by the Assistant Charity Commissioner or Deputy Charity Commissioner as the case may be. It cannot be said that the Charity Commissioner had in any way erred in revising the order passed by the Assistant Charity Commissioner without going into the question on merit. Similarly as held by Mr. Justice J. M. Shelat in the case referred to above when any such information relating to the mode of succession was left out in the Previous inquiry it is open to the Deputy Charity Commissioner or the Assistant Charity Commissioner, as the case may be to hold fresh inquiry as contemplated under Section 22-A of the Act. The ratio of the case of Kuberbhai (Supra) was followed by Mr. Justice Modi in the case of Ishwarlal Nanalal v. Ghanchi Chimanlal R., ILR (1963) Guj 767. With respect I am in entire agreement with the observations made in those two cases. The view propounded by Mr. Justice S. H. Sheth in Shukla Ramanujacharya (Supra) does not run counter to the view expressed in the Previous two cases. As these two cases were not cited before him, Mr. Justice S. H. Sheth has not interpreted the word 'particular' in relation to a Public trust. His observations in the light of the word used in Section 22-A are correct. But I do not agree with Mr. C. K. Patel, learned Advocate for the appellants that the word 'Particular' would mean the finding recorded by the Assistant Charity Commissioner regarding the mode of succession. The word 'Particular' as interpreted by our High Court in the previous two cases would include any information or detail in relation to the mode of succession which was required to be determined by the Assistant Charity Commissioner. If the documents in question were produced before the Assistant Charity Commissioner, at the time of the inquiry for ought we know he could have taken different view of the matter. Even Bai Nathi before her death had made an application for change in this finding on the plea that through mistake she had stated in her application that the mode of succession was 'appointment by village People'. She had alleged that the mode of succession was hereditary and not by appointment of village People. However, that application was rejected. But the fact remains that even before her death Bai Nathi had tried to correct the mistake which she herself had made in giving that application for registration of the trust. Under the circumstances, in the interest of justice when the learned Charity Commissioner found that if the documents Produced by the present respondents were relied upon the finding recorded by the learned Assistant Charity Commissioner could not be sustained he was right in setting aside those findings and remanding the matters for fresh inquiry. It cannot be said that the order Passed by the learned Charity Commissioner was contrary to the provisions of Section 22-A or Section 70-A of the Act. The learned Extra Assistant Judge was, therefore, right in rejecting applications preferred before him under 72 of the Act against the decision of the learned Charity Commissioner.
5. In the result both the appeals fail and are dismissed with costs. The costs of Charity Commissioner to come out of the trust Property. There will be no order as to costs of other respondents.
6. Appeals dismissed.