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Kuberbhai Shivdas and anr. Vs. Mahant Purshottamdas Kalyandas and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR564
AppellantKuberbhai Shivdas and anr.
RespondentMahant Purshottamdas Kalyandas and ors.
Excerpt:
.....22a would not apply to a case like the present one the word particulars in section 18(5) and those particulars having been already ascertained in the previous inquiry under sections 19 and 20 they would not be allowed to be reagitated under section 22a. as stated in the preamble that object is to regulate and make better provision for the administration of the public trusts which would include having decisions relating to public trusts in an expeditious manner through the machinery provided by the act the without having recourse to protracted litigations. the plaintiffs thus could have taken out a proceeding by making an application under section 22-a which provides a specific remedy for a change in the entries and could have satisfied the deputy or the assistant charity commissioner:.....a suit.mr. vakil submitted that sections 17 18 19 and 20 of the act deal only with registration of public trusts and not with the rights of parties and therefore section 80 of the act which bars the jurisdiction of civil courts does not and cannot oust the jurisdiction of a civil court to declare a finding under sections 19 and 20 to be illegal and void if such a finding has been arrived at as a result of fraud.2. chapter iv of the act no doubt is headed as one dealing with registration or public trusts and sections 18 to 20 are contained in that chapter. to appreciate the contention it is necessary to examine these sections and ascertain their effect in the light of section 80 of the act section 17 casts an obligation upon the charity commissioner to maintain amongst several other books.....
Judgment:

J.M. Shelat, J.

1. [His Lordship after stating the facts observed: ]

But it was contended by Mr. Vakil that the findings arrived at by the Assistant Charity Commissioner and the entries made by him on the basis of these findings are not binding upon the plaintiffs who claim to be the beneficiaries of the trust. His contention in this respect was two-fold:

(1) That those findings are only for the purposes of registration and are as between the Charity Commissioner and the 1st defendant as a trustee and that those findings and the entries made on the basis thereof do not decide any question as to the rights of third parties and

(2) That a suit by such third parties is not affected by the decision of the Charity Commissioner and therefore a Civil Court would have jurisdiction to try such a suit.

Mr. Vakil submitted that Sections 17 18 19 and 20 of the Act deal only with registration of public trusts and not with the rights of parties and therefore Section 80 of the Act which bars the jurisdiction of Civil Courts does not and cannot oust the jurisdiction of a Civil Court to declare a finding under Sections 19 and 20 to be illegal and void if such a finding has been arrived at as a result of fraud.

2. Chapter IV of the Act no doubt is headed as one dealing with registration or public trusts and Sections 18 to 20 are contained in that chapter. To appreciate the contention it is necessary to examine these sections and ascertain their effect in the light of Section 80 of the Act Section 17 casts an obligation upon the Charity Commissioner to maintain amongst several other books and registers a register which shall contain such particulars as may be prescribed. Section 18 throws upon a trustee the obligation to apply for registration of the public trust of which he is a trustee. Sub-section (5) of Section 18 provides that such an application shall inter alia contain the particulars set out therein and so far as is relevant for the purpose of this judgment the particulars called for are:

(i) the designation by which the public trust is known;

(ii) the names and addresses of the trustees;

(iii) the mode of succession to the office of the trustee;

(iv) the approximate value of the movable and immovable property.

Clause (viii) of Sub-section (5) requires such other particulars which may be prescribed and which have to be given in the application. Under Section 19 on such application made either under Section 18 by a trustee or by any person having interest in a public trust or on his own motion the Deputy or the Assistant Charity Commissioner has to make an inquiry for the purpose of ascertaining:

(i) whether a trust exists and whether such trust is a public trust

(ii) whether any property is the property of such trust

(iv) the names and addresses of the trustees and the manager of such trust

(v) the mode of succession to the office of the trustee of such trust

(viii) any other particulars as may be prescribed under Sub-section (5) of Section 18.

It is necessary to observe in the light of this section and certain other sections of the Act to which I shall presently come to that the Act classifies these findings by the Deputy or the Assistant Charity Commissioner into two categories. The first category consists of items 1 and 2 in Section 19 which are important as they would affect the rights of persons in relation to the properties found to be belonging to a public trust and the second category consists of the rest of the items in that section. This classification is reflected in Sections 72 and 79 of the Act. Under Section 20 it is the duty of the Deputy or the Assistant Charity Commissioner to record his findings with the reasons therefore as to the matters mentioned in Section 19 and under Section 21 he has to make the entries in the register kept under Section 17 in accordance with the findings recorded by him under Section 20 Sub-section (2) of Section 21 then lays down that the entries so made shall subject to the provisions of the Act and subject to any change recorded under the provisions following Section 21 be final and conclusive.

3. The inquiry held by the Deputy or the Charity Commissioner under Section 19 is by no means an administrative or an executive inquiry The rules framed under the Act called the Bombay Public Trusts Rules 1951 provide an elaborate procedure. Rules 7 to 11 make provisions for the manner in which the inquires are to be held the certificate of registration the mode of serving summons sending of processes allowances to witnesses and the manner of recording the-evidence of witnesses. It is therefore clear that the inquiry is a judicial inquiry and the Charily Commissioner and the officers subordinate to him have been conferred powers of a Civil Court including the powers to issue summons and compelling attendance of witnesses. It is also clear that the inquiry is not on by for the purposes of registration for such an inquiry would involve adjudication of questions such as whether a trust exists if so whether such a trust is a public trust whether the applicant is a trustee the mode of succession to that post and what is still more far reaching in importance whether a particular property belongs to such a public trust. The entries to be made by the Assistant Charity Commissioner are as I have said to be made on the basis of the findings arrived at by him in an inquiry held under Section 19. Though these findings and entries are made conclusive under Section 21(2) the Legislature has provided remedies where it is subsequently found that a change in such entries is necessary. Section 22 provides for such a change in the entries. Mr. Vakil however contended that the plaintiffs would have no right under Section 22 to apply for a change in the entries on the ground of fraud or dishonesty of the 1st defendant. That no doubt is true because Section 22 confines itself to a change which has occurred after an entry is made under Section 21. It appears however that realising that there was a lacuna in the Act the Legislature amended the Act by Bombay Act No. LIX of 1954 and by Section 2 of that amendment Act inserted Section 22A in the Act. The new section provides that if at any time after the entries are made in the register under Section 21 or 22 it appears to the Deputy or the Assistant Charity Commissioner that any particular relating to any public trust which was not the subject matter of the inquiry under Section 19 or Sub-section (3) of Section 22 as the case may be has remained to he enquired into he may make further inquiry in the prescribed manner record his findings and make entries in the register in accordance with the decision arrived at and the provisions of Sections 19 20 21 and 22 would apply to such inquiry with regard to the recording of the findings and the making of the entries in the register. But it was argued by Mr. Vakil that the expression any particular relating to any public trust which was not the subject matter of the inquiry under Section 19 or Section 22(3) would not mean the subject matter of the previous inquiry which has already been inquired into and therefore the plaintiffs would have no right even under Section 22A to approach the Assistant Charity Commissioner and point out to him that the entries made by him were the result of fraud played upon him by the 1st defendant. That contention in my view cannot be accepted. Though retaining the final and conclusive character of the findings and entries made under Sections 20 and 21 Sections 22 and 22A make provision for changes to be made where 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 from consideration in the previous inquiry. It was pointed out by Mr. Vakil that Section 22A would not apply to a case like the present one the word particulars in Section 18(5) and those particulars having been already ascertained in the previous inquiry under Sections 19 and 20 they would not be allowed to be reagitated under Section 22A. Though the construction suggested Mr. Vakil is somewhat ingenious it is a construction too narrow and too artificial to be adopted and it is further more not consistent with the object of the Act. As stated in the preamble that object is to regulate and make better provision for the administration of the public trusts which would include having decisions relating to public trusts in an expeditious manner through the machinery provided by the Act the without having recourse to protracted litigations. It is also clear that in view of the wider definition of a public of a public and charitable trust in the Act the object of the Legislature was to have once for all registration of trusts where in all the necessary particulars regarding such trusts including the properties belonging to them would be included so as to restrict if not to prevent altogether scope for further litigation. It is therefore that the Legislature through fit to give finality and conclusiveness to the findings arrived at in an inquiry under Section 19 and entries made under Section 21. The word particular mentioned in Section 22A would mean any information or detail as to a trust which has not been considered in a previous inquiry under Section 19. Indeed it could not be the intention of the Legislature to lay down that even though information is furnished to the Assistant or the Deputy Charity Commissioner which was not before him at an earlier inquiry or which was suppressed by a trustee for example for the purpose of avoiding a property to be declared to be property belonging to a public trust it should not and cannot be inquired into. In my view the construction suggested by Mr. Vakil is not correct and cannot be accepted.

4. It may be observed that there is nothing in Section 22A to show that a party other than a trustee cannot approach the Deputy or the Assistant Charity Commissioner and lay before him some particular suppressed from him in an inquiry under Section 19 by a trustee. Section 19 itself contemplates an application under Section 18 by any person having interest in a public trust not necessarily a trustee only. If such an application is entertained under Section 19 for the purpose of an inquiry thereunder there can be no reason why an application under Section 22-A by a third party cannot be made and an inquiry made therefrom as contemplated by that section. The plaintiffs thus could have taken out a proceeding by making an application under Section 22-A which provides a specific remedy for a change in the entries and could have satisfied the Deputy or the Assistant Charity Commissioner:

(a) that the 1st defendant is not a validly appointed trustee.

(b) that the mode of succession in respect of which an entry was made under Sections 19 and 21 was not correct

(c) that certain properties suppressed fraudulently and/or dishonestly belong to the trust and

(d) that fraud was committed by the 1st defendant upon the Assistant Charity Commissioner and that therefore the entries made by that other required to be changed.

5. These undoubtedly would be the particulars relating to a public trust which were not the subject matter of the previous inquiry under Section 19 and which could under Section 22-A have been gone into by the Assistant Charity Commissioner at the instance of the plaintiffs. No such application was made by the plaintiffs.

6. Section 70 of the Act provides a further remedy by way of an appeal from the finding or the orders of the Assistant or the Deputy Charity Commissioner in cases therein provided for amongst which are the findings or orders under Section 20 22 and 22A. Under Sub-section (3) of that section the Charity Commissioner has been empowered after hearing an appellant or any one appearing on his behalf to annul reverse modify or confirm the finding or the order appealed against or to direct the Deputy or the Assistant Charity Commissioner to have further inquiry or to take such additional evidence as he may think necessary.

7. As I have said the Act divides the particulars to be ascertained under Section 19 into two categories and these two categories are dealt with by the Act in two ways. Section 79 lays down that any question whether or not a trust exists and whether such trust is a public trust or a particular property is the property of such trust shall be decided by the Deputy or the Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. Under Sub-section (2) the decision of anyone of these officers is made final and conclusive unless it is set aside by the decision of the Court on an application made to it or of the High Court in appeal. The provisions of Section 79 show thus that a finding in an entry made under Section 19 20 and 21 constitute not merely an administrative order for the purpose of registration only or an order as between the Charity Commissioner and the trustee only as suggested by Mr. Vakil but that such a finding and an entry made on the basis thereof are as regards the trust the properties belonging to it and the mode of succession to the office of the trustee. It was however argued by Mr. Vakil that if that was so there was no necessity for the Legislature to provide Section 79 for a decision under Section 19 and 20 in regard to these questions viz. whether or not a trust exists and such trust is a public trust or whether a particular property is the property of such trust has been already made final and conclusive under Sections 19 and 20 and therefore Section 79(1) would be redundant. This is not either a correct or a proper way of looking at Section 79(1). It appears that the object of the Legislature in inserting Section 79 in the Act was distinct. As seen from Schedule A to the Act there were certain statutes previously enacted on public trusts as defined thereunder and certain incidents arising therefrom have been saved under Section 85 of the Act The present Act has widened the definition and the scope of a public charitable trust. There might and would be decisions of Courts of Law dealing with such trusts under the Act which were in existence and a question would arise whether such a decision would either because of its being a judgment in rent bind the beneficiaries and even the Charity Commissioner or would be res judicata precluding in either case the Charity Commissioner and officers subordinate to him from making an inquiry under Sections 18 and 19 of the Act. The Act having provided a new and wider definition of a public and a charitable trust it must have been thought necessary to avoid such a contingency and therefore Section 79(1) had to be enacted. It is pertinent to observe that Section 79 occurs in the Chapter which provides miscellaneous provisions. It is to a decision on the question whether or not a trust exists and whether such trust is a public trust or a particular property is the property of such trust specifically mentioned in Section 79(1) that finality has been conferred but subject to the decision of the District Court on an application made to it or the High Court in appeal. It would also appear that Section 79 had to be inserted to make clear what Section 80 provides. Section 79 therefore expressly provides that the Deputy or the Assistant Charity Commissioner or the Charity Commissioner shall have power to decide matters set out therein and having conferred that power on those officers the Legislature by Section 80 debars the jurisdiction of a Civil Court to decide or deal with any question in respect of which the decision or the order of such officer has been made final and conclusive under Section 79(2). That was necessary because under Section 9 of the Code of Civil Procedure inspite of Sections 19 20 and 79 a Civil Court would still have jurisdiction to entertain matters involving such questions. That jurisdiction under Section 9 of the Code of Civil Procedure has been now taken away by the provisions of Section 80 of the Act. It would also appear that whereas Section 19 confers power upon the Assistant or the Deputy Charity Commissioner to ascertain the question as to whether a trust exists or not and if so whether it is a public trust or whether a particular property is the property of such trust in an inquiry for registration Section 79 in express terms and with a view to avoid any possible ambiguity confers power upon these offices to decide the questions set out therein. In this view the contention of Mr. Vakil that Section 79(1) would be readed relandant or superfluous if the construction of Sections 19 and 20 referred to above were to be accepted appears to be incorrect.

8. Section 79 shows that an application can be made to the District Court by any person and not merely by a trustee who is aggrieved by the decision of the Charity Commissioner under Section 70 or 70A of the Act Section 70 provides an appeal to the Charity Commissioner against an order passed under Sections 22 and 22A amongst other sections. Therefore any person not merely a trustee can apply under Section 22A for a change in the entry on a matter or a particular left out from consideration in a previous inquiry under Section 19 If an order is passed under Section 22 and an applicant is aggrieved he has the right of appeal under Section 70 If he is dissatisfied by all order under Section 70 a right has been conferred upon him to apply under Section 72 to the District Court and thereafter in an appeal to the High Court. Such a right is confined to the two questions set out in Section 79(1). Therefore there is a complete code provided in the Act for dealing with matters set out in Sections 18 and 19 and recourse must be had to the procedure laid down in the Act. This is made clear by the provisions of Section 80 which bar the jurisdiction of a Civil Court in the two categories of matters i.e. (1) those questions left under the Act to be decided by the Assistant or the Deputy Charity Commissioner under Sections 18 and 19 and (2) those which the Act has made final and conclusive under Section 79(1) and Section 21(2). The plaintiffs having had recourse to Section (71) and not having followed up their remedy under Section 72 are bound by the decision of the Charity Commissioner in their appeal before him.

9. On the analysis of the several provisions of the Act and in the view that take of those provisions the learned Joint Judge had no jurisdiction to decide issues 3 and 4. The view therefore taken by the learned trial Judge was right. As is have observed above if the plaintiffs case is that the 1st defendant procured the order of the Assistant Charity Commissioner by playing fraud upon him the plaintiffs could have raised that contention in a proceeding under Section 22A which as I have pointed out above provides a specific remedy. That was however not availed of by the plaintiffs. The revision therefore fails. Rule discharged. The petitioners will pay costs of this revision to the 1st opponent and also to opponents 4 5 and 6 in two sets. Costs of the Charity Commissioner to come out of the trust funds.


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