Skip to content


Hiragar Dayager and anr. Vs. Ratanlal Chunilala and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberLetter Patent Appeal No. 1 of 1971
Judge
Reported inAIR1973Guj15
ActsBombay Public Trusts Act, 1950 - Sections 72
AppellantHiragar Dayager and anr.
RespondentRatanlal Chunilala and ors.
Appellant Advocate I.C. Bhatt, Adv.
Respondent Advocate B.S. Kapadia, Adv. and; J.R. Nanwati, Asstt. Govt. Pleader
Cases ReferredVide Cahdrakant v. Charity Commer. of Gujarat
Excerpt:
.....is to review the correctness of the decision of the charity commissioner on the evidence which was before him and this is clearly a which characteristic of appeal power......the exercise of appellant jurisdiction 'in respect of the decree of order made in the exercise of appeal jurisdiction by a court subject to the superintendence of the high court'. the judge who passed the judgment must declare that the case is a fit one for appeal and it is only if such a declaration is given by the judge who passed the judgment that an appeal can be preferred against the judgment to a division bench of he high court. the question is whether this condition has applicability it the present case. it was common ground between the parties the judgment of mr. justice m.u. shash was passed it the exercise of the appeal jurisdiction and it was equally common ground that tit was in respect of an order made by the court subject to the super intendence of the high court. the only.....
Judgment:

Bhagwati, C.J.

1. This Letter Patent Appeal raises a short but very interesting question of law relating to the maintainability and appeal against an order made by a Single Judge of the High Court in appeal against a decision of the District court under Section 72 of the Bombay Public Trust Act, 1950. It is not necessary for the purpose of determination of the is question to state the facts giving rise to this Letter Patent Appeal in detail but it would be sufficient if we briefly set to a few of the relevant facts, as that would help to understand how the question arises of consideration. There is treat known as Dholeshwar Madh

ev Trust which consists inter alia of the temple situate in Cambay and it was registered as a public trust by the Assistant Charity commissioner on 10th November 1953 on an application on the made by one Motigar Lalgar Gosai, Motigar Lalgar Gosai having die don 21st October, 1958, the appellants who are his heirs filed a change report under Section 22 sub-section (1) claiming the their manes be entered in the Register as trustees in place of Motigar Lalgar Gosait as they were his heirs. This change report was accepted by the Assistant Charity commissioner by an order dated 6th March, 1959 and entry in the register was amended by showing the appellant as trustees of the public trust,. Now it appears that when Motigar Lalgar Gosai made an application for registering the trust as a public trust, he did not disclose to the Assistant Charity Commissioner that he had executed deed of trust dated 30th November, 1946, appointing respondents No. 1 to 3 as trustees and respondents No. 1 to 3 were, therefore not shown in the register as trustees of the trust son after the death to Motigar Lalgar Gosai, however the respondent Nos. 1 to 3 realised that their names were not entered in the reregister as trustees and they , therefore, made an application under Section 22-A claiming that their names should be entered as trustees in place of Motigar Lalgar Gosai, This application was made subsequent to the date of the order passed by the Assistant Charity Commission accepting the change report to the appellants. The Assistant Charity Commission, on receiving this applications held an inquiry and found that respondent Nos. 1 to 3 were trustees of the trust under the trust deed dated 30th November 1946, an they were entitled to have their names entered in the registered as trustees and be accordingly by an order date 20th June , 1959 directed that the name of the appellants be deleted from there registered and the names of respondent Nos. 1 to 3 be entered as trustees. the appellants, being aggrieved by this order made by the Assistant Charity commissioner, performance on appeal to the Charity Commissioner. The main ground on the which the appeal was based was that the Assistant Charity Commissioner had no jurisdiction to the death the names of the appellants and to substitute the names of respondent No. 1 to 3 as trustees in the register under Section 22-A that being the section under which the Assistant Charity Commissioner acted in making his order dated 29th June, 1959 -- and the order dated 29th June,. 1959 made by him was therefore, without jurisdiction. The argument of the appellants was that if respondent No. 1 to 3 sere aggrieved by the order dated 6th March, 1959 made by the Assistant Charity Commissioner accepting the change report of a the appellant and entering the name of the appellant as trustees in the register under Section 22, their remedy, if all, was to prefer an appeal or revision application but they could not seek to set aside that order by inviting the Assistant Charity Commissioner to act under Section 22-A. The Charity Commissioner, who hear the appeal, was impressed by this contention of the appellants and he set aside the order dated 29th June, 1959, made by the Assistant Charity Commissioner. Respondent No. 1 to 3 thereupon the made an application being miscellaneous Application No. 22 of 1962 in the District Court, Kaira, under Section 72 seeking to set aside the decision of the Charity Commissioner. The learned Assistant Judge who hear the application disagreed with the view taken by the Charity Commissioner and taking view that the Assistant Charity commissioner had jurisdiction to make his order dated 29th June, 1959, under section 22-A he set aside the decision of the charity commissioner and restored that the Assistant Charity commissioner. The appellant being aggrieve by this decision of the learned Assistant Judge preferred an appeal before the High Court and since the value of the subject-matter of the proceeding was less that Rs. 10,000/- the appeal came to be heard by Mr. Justice M. U. Shah, as a single judge of this court. Mr. Justice M. U. shah confirmed the decision of the leaned Assistant Judge and dismissed the appeal. the appellants thereupon preferred the present Letter patent Appeal against the decision of Mr. Justice M. U. Shah.

2. When the Letter Patent Appeal reached hearing before us, Mr. B. S. Kapadia, leaned advocate appearing on behalf of respondents Nos. 1 to 3 raised a preliminary objection against the maintainability of the appeal.. This preliminary objection was also se tout in a separate application being Civil application No. 784 of 1971 file don the behalf of respondent No. 1 to 3. The contention urged on behalf or respondent Nos. 1 to 3 was that the order made by the learned Assistant Judge being an order made in the exercise of appellant jurisdiction of the Court subject to the superintendence of the High Court on appeal lay to the Division Bench of the High Court against the judgment of Mr. Justice M. U. Shah under clues 15 of the Letters patent without a certificate obtained from Mr. Justice M. U. Shah that the case is a fit one for appeal and the Letter Patent Appeal filed by the appellant without obtaining such certificate of fitness from Mr. Justice M. U. Shah was, therefore, not maintainable. Now it was not disputed on behalf of the appellant that the present Letters Patent Appeal was filed by them without obtaining a certificate from Mr. Justice M. U. Shah that the case was fir one of appeal under Clause 15 of the Letter Patent. But the argument of the appellant was, under that it was not necessary to the appellant was that it now necessary to the obtain such a certificate of fitness in order to entitle the appellant to file that Letter Patent Appeal since 3rd order made by the learned Assistant Judge which was on firmed by Mr. Justice M. U. shah in appeal was no an order made in the exercise of the appellant jurisdiction and clause 15 id not therefore require that a certificate of fines should be obtained from Mr. Justice M. U. shah in order to maintain a Letter Patent Appeal against his judgment. The determination of these rival contention depends on the true interpretation of Clause 15 of the Letter Patent and it would, therefore be convenient this stage to reproduce it. It reads as follows:--

' 15. And we do further ordain that an appeal shall lie to the said High Court of jurisdiction at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellant jurisdiction in respect of a decree of order made in the exercise of appellant jurisdiction by the court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of supertendence under the provisions of Section 107 of the Government of India Act of in the exercise of criminal jurisdiction) of the one judge of the said High Court or one judge of any Division Court, pursuant to Sec 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court From a judgment of one Judge of the said High Court or one judge of any Division court, pursuant or Section 108 of the Government of India Act made (on or after the first day of February 1929) in the exercise of appellant jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction in respect of a decree jurisdiction by the Court subject to the superintended of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal but the right of appeal from that judgment of judgment of the said High Court or of such Divisional Court shall be to Us. Our Heirs or Successors in Our or their Privy Council, as hereinafter provided'.

It will be seen that Clause 15 of the letters patent provides for an appeal from the judgment of one judge of the High court to a Division Bench of the High Court but in introduces a conditions that it the judgment of one judge of the High Court has been given is the exercise of appellant jurisdiction 'in respect of the decree of order made in the exercise of appeal jurisdiction by a Court subject to the superintendence of the High Court'. the judge who passed the judgment must declare that the case is a fit one for appeal and it is only if such a declaration is given by the judge who passed the judgment that an appeal can be preferred against the judgment to a Division Bench of he High court. The question is whether this condition has applicability it the present case. It was common ground between the parties the judgment of Mr. Justice M.U. Shash was passed it the exercise of the appeal jurisdiction and it was equally common ground that tit was in respect of an order made by the court subject to the super intendence of the High Court. The only controversy between the parties was an to whether the order made by the learned Assistant Judge could be said to be an order made it the exercise of 'appellate jurisdiction'. if it was made in the exercise of appellant jurisdiction'. the Letter Patent appeal would not be maintainable, since certificate of Mr., Justice M. U. shahs as to fitness was not obtained by the appellants but if it was not made in the exercise of 'appellant jurisdiction would be maintainable for a the condition which require that the certificate of fitness should be obtained from the judge who passed the judgment would not then apply.

3. To determine this controversy we must consider what is the nature and character the jurisdiction exercised by the District Court when it deals with an application under Section 72. Section 72, omitting portions immaterial, reads as follows:--

72. (1) Any person aggrieved by the decision of the Charity commissioner under Section 40. 41, 50-A 70 or 70-A or on the question whether a trust exists and whether such trust is a public trust or whether any property it 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.

(1-A). No party to such application shall be entitled to produce additional evidence, whether oral or documentary before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commission has refused to admit evidence which ought to have been admitted or the Court requires an document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substance cause the court things it necessary to allow such additional evidence;

Provided that whenever additional evidence is allowed to be produced by the Court, the Court all record the reason for its admission.

(2) The court after taking evidence i.e. t any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such other as to costs as it thinks proper in the circumstances.

(4) an appeal shall lie to the High court against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.

The argument of the appellant was that Section 72, sub-section (1) speaks only of an application to the Court to set aside the decision of the Charity Commissioner and it does not approved for an appeal against the decision of the Charity Commissioner. It is significant, point out the appellants that though the Legislature has used the e word 'appeal in Section 70 and 71, it has departed from this nomenclature in Section 72 and which dealing with the providing under Section 72, it has deliberately and advisedly omitted to use the word 'appeal' and characterized that proceedings as an application. the proceedings under Section 72 cannot, therefore, be regarded as an appeal to the District Court against the decision of the charge commissioner and when the District Court exercise it jurisdiction in the relation to an application under Section 72, it does not exercise appellate jurisdiction but it exercises a special jurisdiction conferred upon it by Section 72. If contended the appellants, the Legislature intended to confer appellant jurisdiction on the District Court. the Legislature would have used the well known the familiar expression 'appeal' which it has used in Section 70, 71 but the legislature not having used this expression, the inference must be inevitably raised that the jurisdiction which the Legislature intended to confer on the District Court under Section 72 was not appellate jurisdiction but jurisdiction of a special nature. The Charity Commissioners who is the fought respondent before au supported this line of argument advanced on behalf of appellants. Respondent Nos. 1 to 3 however urged that the nomenclature used the Legislature in Section 72 was immaterial. What was required to be considered was as to what was this natural and character of the jurisdiction conferred on the District Court and this could be determined only on a proper consideration of the scope and ambit of the powers exercisable by the District Court in an application under Section 72. Respondents No. 1 to 3 pointed out that the powers conferred on the District Court will dealing with an application under Section 72 were clearly appellant powers and though the word ' appeal' was not used by the Legislature, it was really appellate jurisdiction which was being exercised by the District Court while dealing with an application under Section 72. These were the rival contentions of the parties which we shall now proceed to consider.

4. Now it is no doubt true that while dealing with the proceeding under Section 72, the Legislature has not used the expression 'appeal which is a well-known and well-recognised expression ordinarily used by the Legislature when it wants to confer appellant power on an authority but this circumstance cannot, in our opinion, be regarded as determinative of the question as to what it the true nature and character of the jurisdiction conferred on the District Court under Section 72. Since the Legislature has used the expression 'appeal' in Section 70 and 71 and instead of discribing the proceeding under Section 72 as an 'appeal' characterised it as an 'application', it may be said that whether the word 'appeal' is used in the Act. it would not include a proceeding under Section 72. Such a proceeding for example, would not be an appeal for a purpose of Section 75 which provides that tin computing the period of appeal chapter XI, the provisions of Section 4, 5, 12, and 14 of the old Limitation Act shall apply to the filing of such appeals. That was in the fact so held by a Division Bench of this Court in Sahitalal v. Fulchad, (1926) 3 Guj LR 117. But the question to before us is not whether, according to the diction adopted by the Legislature in enacting the Act a proceeding under Section 72 is an appeal or not. The question section before us is a wholly difference one, namely whether the jurisdiction exercisably by the District Court in dealing with an application under Section 72 is an appellate jurisdiction and in determining this question, it is immaterial as to how the proceeding has been designated by the Legislature. The designation given by the Legislature to the proceeding under Section 72 cannot be regarded as determinative of the question. Whatever might be the designation given by the Legislature, the material question is------and that is the question we must attempt to answer----what is the nature of the power conferred on the District Court while dealing which such a proceeding? what is it content? what is it scope and ambit? It the power conferred on the District Court an appellant power or is it a revisional power or it is power to dealing with an original matter? It is, of course, axiomatic that if the word appeal had been used by Legislature, there would have been no need for furthers inquiry because the word 'appeal' would carry with conferment of the usual appellate powers unless there is anything in the context which expressly to by necessary implication indicates that any particular power which appertain to the exercise of appellate jurisdiction was not intended to be conferred. But even where the word 'appeal' is not used, the powers which are conferred on the authority may be such as to indicate that the authority it really intended to be constituted and appellate authority. The word 'appeal' as understood in the law of procedure connotes juridical examination by a higher Court of the decision of an inferior Court and 'appellate jurisdiction' means the power of a superior court to review the decision of an inferior Court. Vide the Dictionary of English law by Early Jowit pp. 130-131 and 133. The question which were therefore called upon the consider is whether the power conferred on the District Court will dealing with a proceeding under Section 72 is an appellant power, that is a power to review the decision of the Charity Commissioner.

5. Now it may be noticed that the District Court an application under Section 72 is given the power of the Charity Commissioner and there are no limit or fetters upon this powers. The entire matter which was before the Charity Commissioner is at large before the District Court and the District Court has full and complete power to review the decision of the Charity Commissioner,. either on her law or on fact in such manner as it thinks proper. if this be no a appellate power, it is difficult to see what else it can be. It is true that the Charity Commissioner is not subordinate to the District Court in the sense that the District Court has not power of superintend over the Charity Commissioner but there can be no doubt that inter alia in the matter of his decision under Section 70, the Charity Commissioner is inferior to the District Court in that the District Court has power to revoke or modify his decisions. What is of the essence of an appeal is that a superior Tribunal should have the power to review the decision of the inferior Tribunal and that power the District Court certainly has under Section 72. The District Court, as we have already pointed out, any confirm, revoke or modify the decision of the Charity Commissioner on an application under Section 72 . The District Court way also, in the exercise of its inherent power under Section 76 read with the Section 151 of the code of the Civil Procedure, make an power order of remained to the Charity Commissioner, if the District Court thinks it necessary to do so in a proper case. Vide Cahdrakant v. Charity Commer. of Gujarat, (1965) 6 Guj LR 649. We may point out that sub-section (1-A) of the Section 72 also reinforces the vie with the powers conferred on the District Court under Section 72 is identical terms as order 41,. Rule 27 of the Code of civil Procedure e and it emphasizes that what the District Court is called upon to do under Section 72 is to review the correctness of the decision of the Charity Commissioner on the evidence which was before him and this is clearly a which characteristic of appeal power. There can, therefore, be no doubt that though the word 'appeal' is not used by the Legislature and the proceeding under Section 72 is designate as an application, the jurisdiction conferred on the District Court while dealing with such proceeding is appellant jurisdiction. This views completely supported by the decision in (1965) 6 Guj LR 649 (supra) which being a decision a given by Division Bench of this Court, it binding upon us. There the question was whether an application under Section 72 could be regarded a s an appeal within the means in of the Section 29(2) of the Limitation Act and after examining the real nature of the right conferred by Section 72, the Divisions Bench consisting of M. U. Saha, J. and myself held that though an application under Section 72 cannot be said to be an appeal within the meaning of Section 75, it was certainly liable to be regarded as an appeal within the meaning of Section 75, it was certainly liable to be regarded as an appeal what in the meaning of the Limitation Act. What we said there must apply equally is the present case and we must hold that the jurisdiction of the District Court while dealing with an application under Section 72 is appellate jurisdiction.

6. The appellant and respondent No. 4 relied on Sections 7, 8 and 16 of the Bombay Civil Court Act, 1869 and contended that these Section showed that the jurisdiction conferred on the District Court under Section 72 was not appellant jurisdiction. The argument of he appellants and respondent No. 4 was that the appellant jurisdiction of the District Court consisted only of the that jurisdiction which was referred to in Section 8 and any other jurisdiction which might be conferred on the District Court by a special law would be in the original jurisdiction or special jurisdiction but it would not be appellate jurisdiction. The attempt of the appeal late jurisdiction in clause 15 of the Letter patent to the appellate jurisdiction contemplated in Section 8 of the Bombay Civil Courts Act,. 1869. This attempt is futle and cannot be countenances. Section 8 of the Bombay Civil Court Act 1869 does not make an exhaustive provision in regard to the appeal jurisdiction of the District Court. What it says is, that, except as provided in Section 16, 17 and 26, the District Court shall be the Court of the Appeal from all decrees and order passed by the subordinate Court form which an appeal lies under any law for the time being in force. Wherever, therefore, an appeal is provided from a decree of order passed by the subordinate Court, it shall be lie to the District Court. But this does not mean that the jurisdiction to hear appeals from decrees and orders passed by the subordinate court shall constitute the only appellate jurisdiction of the District Court. There may be various statutes which may provided for appeal from the decisions of Tribunal to the District court. The Bombay land Requisition Act, 1948, is an example of one such statute. Wherever jurisdiction is conferred by statute on the District Court to review the decision of an inferior Tribunal, it would constitute part to the appellate jurisdiction of the Distinct Court. The words 'appellate jurisdiction' in Clause 15 of the Letter Patent refer to appellate jurisdiction of the whatever kind which may be vested in the District Court whether it is conferred under Section 8 of the Bombay Civil Courts Act, 1896, or under Section 8(3) of the Bombay Land Requisition Act. 1948, or under Section 72 of the Bombay Public Trusts Act, 1950.

7. We are, therefore, of the view that when the District Court deals with an application under section 72, it exercises appellant jurisdiction and the order made by the learned Assistant Judge in the present case which was confirmed by the Decision of Mr. Justice M. U. Shah was consequently an order made in the Exercise of appellate jurisdiction by a Court subordinate to the High Court and no Letter Patent Appeal against the decision of Mr. Justicts M. U. Shah could be filed by the appellants without obtaining a certificate from Mr. Justice M. U. Shah that the case was a fit one for appeal. Since the present Letter Patent Appeal was filed the appellant without obtaining such certificate from Mr. Justice M. U. Shah, it must be held to be to not maintainable an must be rejected. On this view, it become unnecessary to examine the merits of the appeal and we do not, therefore, propose to express any opinion on the merits. The appeal, therefore, fails and it dismissed with costs.

8. Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //