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TMI Blog1971 (1) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... after this Trust was made--in fact within seven days thereafter Bhagoji Keer acquired another property bearing Cadastral City Survey No. 656. This property is adjacent to the property bearing Cadastral City Survey No. 657 and some structures have been constructed thereon. One of them is Dnyan Mandir now known as Shree Cinema. It appears that this structure has been constructed on 922 sq. yds. out of City Survey No. 657 and partly on a portion of Cadastral City Survey No. 656. 3. Under the Deed of Trust, Bhagoji Balooji Keer and two others were the trustees. After Bhagoji's death on 24-2-1944 his son Bhalchandra (defendant No. 1) came to be appointed as a trustee in place of his deceased father along with the two other trustees appointed under the Trust. On 23-5-1946 this Bhalchandra was adjudicated insolvent with the result that his estate vested in the Official Assignee and his place as a trustee was taken by Bhagoji's other son. Anant (Defendant No. 3). In 1947, the Official Assignee filed a suit for the administration of the personal estate belonging to Bhagoji in which insolvent Bhalchandra was entitled to a share. That suit was Suit No. 807 of 1947 and the same was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s heirs. Defendant No. 2 happens to be the widow of Bhagoji and defendant No. 4 happens to be her daughter. The Official Assignee was impleaded in the suit as defendant No. 10 and the Court Receiver as defendant No. 11 and the Charity Commissioner as defendant No. 13. 6. The suit was resisted by the defendants and on a perusal of the pleadings the following issues were framed and heard as preliminary issues:-- (1) Whether this Court has pecuniary jurisdiction to try this suit. (2) Whether this Court has no jurisdiction and the Charity Commissioner alone has jurisdiction to determine whether the property in question is a Public Charity Trust. (3) Whether the plaint discloses any cause of action against the defendants. (4) Whether the suit, as framed is maintainable without leave of the Court in view of the provisions of Order 2. Rule 4 of the Code of Civil Procedure. (5) Whether the suit as framed is not maintainable for reasons mentioned in paragraph 5 or 7 of the written statement of defendant No. 12. (6) Whether the plaintiffs have given valid and proper notices under Section 80 of the Civil P. C. and whether proper notices have been served on defendants 10 and 11. (7) If the ans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stee has an office for the administration of the trust or the trust property or substantial portion of the trust property is situate. Sub-section (4) prescribes the time limit for making such an application and Sub-section (5) pro-vides the particulars which have to be furnished in the application in question. Sub-section (6) provides that every application made under Sub-section (1) shall be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in this behalf and shall be accompanied by a copy of an instrument of trust. Section 19 provides for inquiry for registration of the trust. It says that on the receipt of an application under Section 18, or upon an application made by any person having interest in a public trust or on his own motion, the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed manner and the facts to be ascertained have been enumerated thereafter. The first fact to be ascertained is whether a trust exists and whether such trust is a public trust and the second fact is whether any property is the property of such trust. It is not necessary to enumerate the remaining facts for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot possibly arise. The question therefore is whether the present suit could properly be regarded as a suit falling within the purview of Section 50. Section 50, in so far as is material for this proceeding, provides:-- In any case-- (i) ........................... (ii) where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or (iii) .............................. The Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in Section 51, may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs:-- (a) an order for the recovery of the possession of such property or proceeds thereof . There are certain provisos to Section 50, but with those provisos we are not concerned in this proceeding. Fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner or by two or more persons having an interest in the trust for the recovery of possession of such property. On the side of the plaintiffs, it is argued that to adopt such a construction would drive, the plaintiffs to multiplicity of proceedings. They would in the first place, be required to approach the Deputy Charity Commr. or the Charity Commissioner, as the case may be for the purpose of obtaining a finding that the properties in dispute belong to the public charitable trust in this case and thereafter they would be allowed to proceed with this suit. But it is difficult to see how such a course can be avoided in the face of the plain provisions to which a reference has been made. 11. In Taraben Baldevdas v. Charity Commr. AIR1957Bom42 the facts were that the plaintiff filed a suit in a civil court against the defendants for a declaration that she was the owner of a certain sum of money lying in deposit with the defendants and no one else had any right, title and interest in that sum. In that suit a preliminary issue was raised whether the suit was barred by the Bombay Public Trusts Act, 1950. During the pendency of the suit the defendants submitted an application before the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observations only support the conclusion that if a suit properly falls within the purview of Section 50, it is saved from the bar arising under Section 80, but, for reasons already indicated the present suit cannot properly be regarded as a suit falling within the purview of Section 50. These observations cannot, therefore, further the case of the plaintiffs. 12. In Kuberbhai v. Purshottamdas (1961) 2 Guj LR 564, the facts were that on 6-8-1952 the 1st defendant applied to the Assistant Charity Commissioner for registration of the trust pertaining to the temple of Shri Ramji at Detroj, of which the 1st defendant claimed to be the Mahant. The Assistant Charity Commissioner held an inquiry and ascertained that the 1st defendant was the Mahant and manager of the temple and made an entry in the register kept under Section 17 of the Bombay Public Trusts Act 1950, of the name of the 1st defendant as the Mahant and manager and also an entry to the effect that the mode of succession to the office of the Mahant was from the Guru to the Chela. Against these findings, the plaintiffs filed an application before the Deputy Charity Commissioner who rejected that application. Aggrieved by the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, however, does not make any difference in principle. What is important is that the High Court of Gujarat has come to the conclusion that the duty and function to decide whether a particular property does or does not belong to a public trust are by Section 79 entrusted to the Charity authorities and the decision of those authorities is made final under Sub-section (2) of Section 79 and the Civil Court is consequently precluded from deciding that question under Section 80 of the Act. 13. In Rajgopal Raghunathdas v. Ramchandra (1967)69BOMLR472 a Division Bench of this Court consisting of the Hon'ble the Chief Justice and Mr. Justice Bal was dealing with a case where plaintiffs in their capacity as trustees had sued a trespasser for possession of property belonging to the trust and the contention was that the suit under Section 50 of the Bombay Public Trusts Act was not maintainable for want of the Charity Commissioner's sanction. That contention was overruled by the Division Bench, and the learned Chief Justice, speaking for the Division Bench, pointed out that the trustee who is in the position of a legal owner of property can sue to recover the property from persons, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be that the Deputy or Assistant Charity Commissioner has a discretion to inquire into certain particulars in regard to the Trust, but those particulars clearly must not be particulars about the inquiry of which an imperative duty has been cast under Sections 18 and 19. As I have already pointed out, under Section 19(ii) an imperative duty has been cast on the Charity authorities to determine whether any property is the property of such trust, and whenever an inquiry for this purpose is sought, it is certainly not open to the Charity authorities to avoid their responsibility and to say that the matter is too complicated and the parties could, therefore, seek their relief in a regular suit. 15. The ruling in Shri Adinath Tirthankar Jain Mandir v. Shantappa AIR1967Bom86 , to which a reference was made by Mr. Desai in the course of his submissions at the Bar cannot possibly make any difference to the view I am taking. In that case, the facts were that a person, who was not a party to the proceedings under the Bombay Public Trusts Act, 1950. found that his property had been registered as trust property pursuant to the said proceedings and it was held that he was not precluded under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his suit. He pointed out that the property Dnyan Mandir alias Shree Cinema purchased at the Court auction by defendant No. 12 has in fact been constructed partly on Cadastral City Survey No. 657, although a part of it is constructed on the adjoining plot bearing Cadastral City Survey No. 656 also. The argument, therefore, was that the plot bearing Cadastral City Survey No. 657 at any rate is a property belonging to the Trust and if that is the position there is no reason why the plaintiffs cannot come to Court under Section 50. But while the plaintiffs could come to Court for relief in respect of Cadastral City Survey No. 657, which is already declared to be a trust property, they could not possibly claim any relief in respect of the other property bearing Cadastral City Survey No. 656, which is not yet declared to be a property belonging to the trust. The decision of the Supreme Court in Sugra Bibi v. Haji Kummu [1969]3SCR83 , to which a reference was made by Mr. Desai can possibly have no application to the facts of this case. What has been held there is that where in a Wakf deed there were certain provisions in favour of the family members of the founder along with some other pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be hoped that after the plaintiffs approach the charity authorities they would deal with the matter as expeditiously as possible. 18. That leaves the other contention of Mr. Daji that the suit is bad for Want of the necessary leave to the Court under the provisions of Order 2, Rule 4 of the Code of Civil Procedure. That Rule provides:-- No cause of action shall unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof. (b) claims for damages for breach of any contract under which the property or any part thereof is held. (c) claims in which the relief sought is based on the same cause of action. Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property . The submission founded on this Rule was that the only causes of action which could be joined without the leave of the Court Were the three enumerated in Rule 4, but in the present case, besides claiming mesne profits, the plaintiffs had also made certain prayers not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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