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TMI Blog2005 (5) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... e work of the church of the brethren in western India in order to reveal Christ by means of evangelistic, educational, medical, literary, industrial school, social and charitable activities leading to the establishment of the kingdom of God. A Continuation Committee is said to have been appointed in the year 1930 by the representatives of the Brethren Church and other churches in a Round Table Conference held in New Delhi with a view to consider the modalities and other details for amalgamation of churches. The Committee is said to have worked out a broad basis for the unification of churches which was accepted by the participant churches whereupon a new committee came into being in the year 1951. The First District Church of the Brethren in India (Brethren Church) was registered as a religious society under the Societies Registration Act, 1860 bearing Registration No.1202/44; the object whereof was to promote the work of the church of the brethren in Western India with the same object wherefor the church was established. Another Round Table Conference is said to have been held in the year 1951 at New Delhi resulting in appointment of a new committee known as 'Negotiating Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the functioning of the CNI, and in particular the worship in churches, and asserted that the First Brethren Church had not been dissolved and continued and they represented the same. The original plaintiffs, namely, Ambelal Okarial Patel, Shantilal Lakshmichand Purani, Bishop T.L. Christachari and Samuel Nagarji Bhagat (since deceased) said to be the former office bearers of the Brethren Church filed a suit in the Court of the Civil Judge, Senior Division, Bharuch, marked as Civil Suit No.72 of 1979. The CNI was impleaded as defendant No. 5 therein, although no relief thereagainst was claimed contending that it was a necessary and/or a proper party. The Brethren Church were not made parties in the said suit. It is stated at the Bar that the said churches were impleaded at a later stage of the proceedings but the said applications were later on dismissed. The original defendant No. 4 in his written statement filed in the said suit took a categorical stand that there had been no dissolution of the Brethren Church and their separate entity was not lost. According to the said defendant they were temporarily suspended till it was revived again and, thus, they were entitled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A. Sundaram, the learned Senior Counsel appearing on behalf of the Appellant would submit that the Court of First Appeal as also the High Court committed a manifest error in passing the impugned judgments insofar they failed to take into consideration the scope and purport of the suit. According to the learned counsel, the learned Trial Judge had rightly decreed the suit having taken into consideration the fact that the matter relating to formation of churches and their merger in the name of the CNI was not a matter which could be determined by the Charity Commissioner in exercise of his powers under the BPT Act. The learned counsel would contend that the society and the trust are two separate entities. The Society being not a juristic person although cannot own any property but manage the affairs of the trust which would be the owner of the property. According to the learned counsel the Court of First Appeal and the High Court misdirected themselves in passing the impugned judgments insofar as they proceeded on the premise that having regard to the fact that properties belonging to the Brethren Church were registered in the books maintained by the Charity Commissioner under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive jurisdiction and not the Charity Commissioner. According to the learned counsel, the Charity Commissioner being a creature of statute must exercise its jurisdiction within the four-corners thereof and the matters which do not come within the purview of the BPT Act must necessarily be left to the jurisdiction of the Civil Court. According to the learned counsel the provisions of Section 50 of the BPT Act do not show that requirements contained therein must be carried out even in a case where the Charity Commissioner may not have any jurisdiction. As regard interpretation of Section 31 of the BPT Act, the learned counsel would contend that the provision thereof bars hearing and decision in the suit and not the institution thereof. Although in the year 1979, the Appellant herein was not registered but as before hearing of the suit was taken up, it became registered in the year 1980, the Civil Judge had the jurisdiction to hear and decide the said suit even it involved dealing with the trust property. Mr. Huzefa Ahmadi, the learned counsel appearing on behalf of the contesting Respondents, on the other hand, would submit that for the purpose of determining the question as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, would have no application where a suit was expressly barred which regulates management of a trust, as the BPT Act created a specialized machinery to determine the issues governing the same. Drawing our attention to the prayer (b) of the plaint, Mr. Ahmadi would argue that the same would squarely fall within the purview of Sections 50 and 51 of the BPT Act and, thus, would be barred as no permission of the Chief Commissioner was sought for and obtained. The learned counsel would contend that the plea that the suit related to the affairs of the society is merely a ruse or a camouflage. It was argued that the society itself is a religious trust and, thus, both stand on the same footing and in that view of the matter, the suit will not be maintainable. The learned counsel would further submit that a finding of fact had been arrived at by the Court of Appeal that the Brethren Church had not ceased to exist, this Court should not interfere therewith. Mr. M.N. Shroff, the learned counsel appearing on behalf of the Charity Commissioner, adopted the submission of Mr. Ahmadi and would further contend that the substantial issue before the learned Civil Judge was as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court shall make such order in the matter as it shall deem requisite: Assent required Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by their votes delivered in person or by proxy, at a general meeting convened for the purpose: Government consent Provided that whenever any Government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of the Government of the State of registration. BOMBAY PUBLIC TRUSTS ACT The BPT Act, on the other hand, was enacted to regulate and to make better provision for the administration of public religious and charitable trusts in the State of Bombay. Section 2 is the interpretation clause. Section 2 (10) defines person having interest to include in the case of a society registered under the Societies Registration Act, 1860 any member of such society. Section 2(13) defines public trust to mean an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, a dharmada or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and maintenance of such books, indices and other registers as may be prescribed in every Public Trusts Registration Office or Joint Public Trusts Registration Office. Such books, indices and registers would contain such particulars as may be prescribed. Section 18 imposes a duty upon the trustee of a public trust to make an application for the registration of the public trust in writing and would contain such particulars as mentioned in Sub-section (5) of Section 18. Clause (iii) of Sub-section (5) of Section 18 provides that the list of the movable and immovable trust property and such descriptions and particulars as may be sufficient for the identification thereof shall be stated as and when such application for registration of the trust is filed. Section 19 provides for an Inquiry for registration 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, (iii) whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction, (iv) the names and addresses of the trustees and manager of such trust, (v) the mode of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant particulars relating to such trust entered in the register in relation to any property belonging to a public trust. Section 31 creates a bar to hear or decide suits in the following terms: 31(1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. (2) The provisions of sub-section (1) shall apply to a claim of set off or other proceeding to enforce a right on behalf of such public trust. Chapter V provides for the Accounts and Audit. Section 36 bars alienation of immovable property of public trust without the previous sanction of the Charity Commissioner. In the event, such previous sanction is not granted, an appeal thereagainst is maintainable before the Gujarat Revenue Tribunal. Chapter VI provides for the control of the charitable or religious trusts and for the said purpose in terms of Section 37 the Charity Commissioner is empowered to: (a) to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust; (b) to call for or inspect any extract from any proceedings of the trustees of any public trust and any books of accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged, (g) the settlement of a scheme or variations or alterations in a scheme already settled, or (h) granting such further or other relief as the nature of the case may require; Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof: Provided further that the Charity Commissioner may, instead of instituting a suit, make an application to the Court for a variation or alteration in a scheme already settled. Sections 51, 79 and 80 read as under: 51(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Principles for determination: The question as regard ouster of a jurisdiction of a Civil Court must be construed having regard to the Scheme of the Act as also the object and purport it seeks to achieve. The law in this regard is no longer res integra. A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed de'hors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code of Civil Procedure. In Dhulabhai and Others vs. The State of Madhya Pradesh and Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the following principles relating to the exclusion of jurisdiction of civil courts : (a) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is a relevant enquiry. (g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply. [See also Rajasthan State Road Transport Corporation and Another vs. Krishna Kant and Others (1995) 5 SCC 75, Dwarka Prasad Agarwal vs. Ramesh Chand Agarwal - (2003) 6 SCC 220, Sahebgouda vs. Ogeppa (2003) 6 SCC 151, Dhruv Green Field Ltd. vs. Hukam Singh (2002) 6 SCC 416 and Swamy Atmananda Ors. Vs. Sri Ramakrishna Tapovanam Ors, [2005 (4) SCALE 116]. The same, however, would not mean that in a given case if the court has the jurisdiction to determine a part of the relief claimed, it will not confine itself thereto and reject the plaint in its entirety. For the purpose of determination of question as to whether the suit is barred, the averments made in the plaint are germane. [See Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137] ANALYSIS OF BPT ACT: The BPT Act is a special law. It confers jurisdiction upon the Charity Commissioner and other authorities named therein. The statute has been enacted by the Parliament in public interest to safeguard the properties vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany would not arise. The records do not show that the said company had ever taken any decision as regard control and management of the Trust and/ or had dealt with the properties belonging to the Brethren Church. It is also not in dispute that local churches or congregations which desired to function on the basis of the old constitution were at liberty to do so till the 3rd Ordinary Synod of C.N.I. which was to be held in 1977. According to the plaintiffs, most of the churches or congregations under the Gujarat Diocesan Council implemented the said chapter. The church or congregation at Valsad although decided to adopt the said constitution, but it is contended that in the intervening period the property Committee (Property Trust Board) of the former Brethren Church continued to manage the properties, estate, etc. of Valsad Church as an agent of and on behalf of the Gujarat Diocesan Council. The defendant Nos. 1 to 4 who were residents of Valsad and Navsari; took exceptions to the decision of the Synod to terminate the interim period with effect from 7th October, 1977 and held a meeting on 12th November, 1978. A resolution had been adopted by the said defendants al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct matter of the suit. In the aforementioned context, the plaintiffs had questioned the actions and/ or activities of the defendant Nos. 1 to 4 and other dissidents insofar as they tend to prevent or hinder the plaintiffs and other members of the Pastorate from acting under and in accordance with the said decisions and resolutions of the Gujarat Diocesan Council and the constitution of Synod violate and infringe the legal rights of these persons to do so and are illegal. The Appellant herein was joined as defendant No. 5 in the said suit, although no relief had been claimed against the original defendant No. 5 who is the Appellant before us. The status of the defendant No. 5 has not been disclosed in the plaint. The legal status of Church of North India has not been disclosed in the plaint. It is accepted that the defendant No. 5 Appellant has got itself registered as a trust only in the year 1980. It also stands admitted that a change report has been filed by the Appellant before the Commissioner of Charity in the year 1981. We have noticed hereinbefore that as regard the correctness or otherwise of functioning of the congregation of Ankleshwar and Valsad had been th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies Registration Act plays any role or discharges any function which is not done by the trustees of the trust. It also does not appear from a perusal of the plaint that the society and the trust comprises of different persons or for different functions to perform. In fact in paragraph 2 of the plaint it is accepted that the Church which was registered as a society under the Societies Registration Act was a public trust as defined under Section 2(13) of the BPT Act. The ownership of movable and immovable properties at the places mentioned in the plaint is referable to the congregations under the Brethren Church. It is not alleged that whereas the properties belong to the trust it was managed by the society. The plaint furthermore does not disclose that the decision as regard dissolution of the churches and congregation of Brethren Church had been taken by anybody other than the trustees. The committees constituted for the aforementioned purpose, viz., Continuation Committee and Negotiating Committee, evidently were represented by the authorities of the congregations and not of any society. A decision, as would appear from the averments made in paragraph 6 of the plaint, to dissolve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the BPT Act. Thus, only because the society has been dissolved, ipso facto the properties belonging to the trust cannot be said to have been adjusted. The Appellants, thus, we have noticed hereinbefore, have averred in the plaint that the suit relates to the property of the trust and their administration. If the properties of the churches did not belong to the society, the Appellant herein cannot claim the same as their successor. The plaint has to be read meaningfully. So done, it leads to the only conclusion that the dispute was in relation to the management of the churches as religious trust and not as a society. Even if it is contended that the administration of the property would mean the properties of the Brethren Church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable. It is interesting to note that the Appellants themselves in grounds 1, 2, 4, 5 and 6 have categorically stated that both the society registered under the Societies Registration Act and the trust registered under the BPT Act is only one entity and that upon dissolution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Association of the Society itself became the deed of trust. It also stands admitted that only with a view to have one body to administer and manage the properties, the trust so created by the society was also registered. It is not a case where the trust was created for the benefit of the society. Furthermore, there is nothing on record to show the mode and manner of the management and control of the trust property. [See Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. State of Delhi (Now Delhi Administration) and another, AIR 1962 SC 458, Dharam Dutt and Others Vs. Union of India and Others, (2004) 1 SCC 712, para 52 and Illachi Devi (Dead) By LRs. and Others Vs. Jain Society, Protection of Orphans India and Others, (2003) 8 SCC 413, paras 21 and 22] In Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar [AIR 1965 SC 338], this Court did not permit a new question to be raised. In this case also, a new contention has been raised contrary to the pleadings that the society and the trust are different entities. We have noticed hereinbefore that the BPT Act provides for finality and conclusiveness of the order passed by the Charity Commissioner in Sections 21(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be arrived which must contain the reasons therefor. The defendants are disputing that any such change in accordance with law was effected. An order passed by Deputy or Assistant Charity Commissioner is appealable. Yet again, when an amendment is made in the entry in the register, the same would be final and conclusive. Even a power exists for holding a further inquiry. Section 31 bars a suit to enforce a right on behalf of a public trust. C.N.I. got itself registered as a public trust in the year 1981. A suit evidently was filed by the plaintiffs in the year 1980 because C.N.I. was not then entitled to file a suit. It may be true that the suit was filed under Order 1, Rule 8 of the Code of Civil Procedure but therein the question as to whether the Appellant herein, being a registered trust became entitled to the properties of Brethren Church could not have been gone into. What is prohibited is to enforce a right on behalf of a public trust. When the plaintiffs intended to enforce a right on behalf of the Appellant, the suit was evidently not maintainable. Furthermore, the purported resolutions of the churches affiliated to the Brethren Church and merger thereof with the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o amendment had been effected in the registers and books maintained by the Charity Commissioner in terms of Section 17 read with Sections 21 and 22 of the Act. The plaintiffs with a view to obtain an order of injunction furthermore were required to establish that they could file a suit for enforcement of right of the Appellant as a religious trust and such a legal right vests either in the plaintiff or in the Appellant herein indirectly. Such a prayer, related to the possession of the property, comes squarely within the purview of the BPT Act. If the question as regard recovery of possession of the property belonging to a public trust squarely falls within the purview of Section 50 of the Act, had such application been filed before the Charity Commissioner he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, a suit could have been filed in terms of Section 51 of the Act. In the event of refusal to give consent, the persons interested could have preferred an appeal. Yet again the question as regard existence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered having regard to the fact that the decision of a probate court is a judgment in rem and conclusive and binds not only the parties but also the entire world. In Rajasthan State Road Transport Corporation and Another Vs. Krishna Kant and Others [(1995) 5 SCC 75], this Court following Dhulabhai (supra) held that having regard to the provisions contained in the Industrial Disputes Act and Industrial Employment (Standing Orders) Act, 1946, the civil court will have no jurisdiction as enumerated in paragraph 35. In Sahebgouda (Dead) By LRs. and Others Vs. Ogeppa and Others [(2003) 6 SCC 151] the allegations made in the plaint showed that the only right claimed by the Appellants was that of being ancestral pujaris of the temple. They did not claim to be the trustees of any trust. No declaration regarding the existence or otherwise of the trust or any particular property is the property of such trust had been claimed and in that view of the matter, it was held that the reliefs so claimed do not come within the purview of Section 19 or Section 79 of the Act wherefor the Deputy or Assistant Charity Commissioner will have the exclusive jurisdiction to hold an inquiry and give a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purposes or for both cannot be held to a public trust ipso facto although registered under the Societies Registration Act unless it is registered also under the BPT Act as the question whether such a trust was validly formed or not would come within the purview of Sections 18, 19 and 20 of the BPT Act. In that case the plaintiff was not registered as a public trust and in that situation it was held that Section 80 would operate. In Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and others [2001(2) Mh.L.J. 512], a learned Single Judge of the Bombay High Court held that a civil suit cannot be entertained only because a complicated questions of title has been raised. In Keki Pestronji Jamadar and Another vs. Khodadad Merwan Irani and Others [AIR 1973 (Bom) 130] the question was as to whether the author of a trust was the lawful owner of the property of which he has created the trust. The Full Bench of Bombay High Court held that the author of the trust has no title over the property and Section 80 would not operate as a bar. In Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and Sons and Others [(1994) 1 MhLJ 280] a question arose as regard power of a co-trus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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