1 S.A.No.702/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.702 OF 2010. 1. Prakash Vitthalrao Kapse, Age 43 years, Occ.Agricuture, R/o Fakirabadwadi, Tal.Vaijapur, Dist. Aurangabad. 2. Ravindra Ratanlal Nanasaheb Ware, Age 25 years, Occ.Agriculture, R/o Devthana, Tal. Yeola, Dist. Aurangabad. 3. Kashinath Gangaraj Bargal, Age 72 years, Occ.Agriculture, R/o Khultabad, Tal. Vaijapur, Dist. Aurangabad. 4. Ramkrushna Baba Jagannath Patil, Age 75 years, Occ.Agriculture, R/o Dahigaon, Tal. Vaijapur, Dist. Aurangabad. Versus 1. Ramgiri Guru Narayangiri Maharaj, Age major, Occ.Nil, R/o Sarlabet, Tal. Vaijapur, Dist. Aurangabad. 2. Bhausaheb Bhikaji Vamne, Age 60 years, Occ.Nil, R/o Malwadi, Tal. Shrirampur, Dist.Aurangabad. 3. Dadabhau Pundlik Urkide, 2 S.A.No.702/10 Age 42 years, Occ.Agriculture, R/o Sarlabet, Tal. Vaijapur, Dist. Aurangabad. 4. Bharat Vitthal Chandgude, Age 42 years, Occ.Agriculture, R/o Devla Ashram, Tal.Vaijapur, Dist. Aurangabad. 5. Sopan Trimbak Autade, Age major, Occ.Agriculture, R/o Sarlabet, Tal. Vaijapur, Dist. Aurangabad. 6. Gangadhar Onkar Autade, Age major, Occ.Agriculture, R/o Sarlabet, Tal. Vaijapur, Dist. Aurangabad. 7. Sarangdhar Haribhau Urkide, Age major, Occ.Nil, R/o Sarlabet, Tal. Vaijapur, District Aurangabad. 8. The Assistant Charity Commissioner, Aurangabad. ... Respondents. ... Mr.P.M.Shah,Senior Counsel instructed by Mr.S.P.Chapalgaonkar, advocate for the appellants. Mr.V.J.Dixit, Senior Counsel instructed by Mr.M.S.Mahajan, advocate for Respondent Nos.1 and 2. Mr.V.D.Salunke, advocate holding for Mr.Shrikant Kulkarni, advocate for Respondent Nos.3,4 and 7. Mr.M.M.Joshi, advocate for Respondent Nos.5 and 6. ... CORAM : S.V.GANGAPURWALA,J. Date : 30.03.2011. 3 S.A.No.702/10 JUDGMENT : 1. The Trust, namely, Shri Sadguru Gangagiri Maharaj Trust bearing Registration No. 3255 exist. Reporting trustee by name Bhausaheb Wamane, submitted change report that Haribhakta Parayan Narayangiri Maharaj who was President/Mathadipati of the Trust expired on 19.3.2009. He had not named his successor. The executive body of the Trust has unanimously elected Haribhakta Parayan Ramgiri Maharaj as the Mathadipati/President in meeting dated 2.4.2009. Initially some of the Trustees raised objection but later on all of them withdrew the objection/applications. The Assistant Charity Commissioner examined the reporting Trustee and thereafter accepted the said change report. 2. The present appellants filed Revision U/s 70-A of the Bombay Public Trusts Act, before the Joint Charity Commissioner, Aurangabad. It was their contention that late Narayangiri Maharaj had chosen his successor Shri Uddhav Guru and had executed Vyavasthapatra nominating Shri 4 S.A.No.702/10 Uddhav Guru as the Mathadipati and that Ramgiri Maharaj who was elected as Mathadipati was not eligible. The Joint Charity Commissioner dismissed the said Revision. The present appellants aggrieved thereby filed Misc. Application before the District Judge against the said judgment and order passed by the Joint Charity Commissioner. The District Judge-3, Aurangabad vide its judgment and order dated 6.10.2010, dismissed the application and confirmed the judgment of the Joint Charity Commissioner. The appellants being aggrieved thereby have filed the present Second Appeal. 3. Mr.P.M.Shah, learned Senior Counsel instructed by Mr.S.P.Chapalgaonlar, advocate for the appellants contended : (a) The Joint Charity Commissioner and the District Judge without affording the opportunity of adducing the evidence has commented upon the said Vyavasthapatra. The same is against the basic principles of Civil jurisprudence. The signature on the said Vyavasthapatra of 5 S.A.No.702/10 Narayangiri Maharaj is admitted by the other side. The case of the other side is that Narayangiri Maharaj used to keep such signed letterheads and the same was subsequently misused. The finding on the same could not have been arrived at without affording an opportunity of adducing evidence. Even the District Court has given a prima facie finding and not a conclusive one. (ii) That Shri Ramgiri Maharaj was not eligible to be appointed as Mathadipati as it is not in consonance with clause 6 of the byelaws of the Trust. As per clause 6 of the byelaws, successor has to be nominated by the Mathadipati who has to be his disciple. It is only in absence of nomination of the successor by the Mathadipati the Trustees would have a right to appoint the Mathadipati that too the disciple of Narayangiri Maharaj and Shri Ramgiri Maharaj is not the disciple of Narayangiri Maharaj. He is disciple of Shivguru Maharaj which is proved by the voters list. 6 S.A.No.702/10 (iii) The Joint Charity Commissioner and the District Judge have not properly dealt with the matter. Even U/s 70-A, the Joint Charity Commissioner has the power to record the evidence so also U/s 72, the District Judge can also record the evidence. The findings arrived at without recording the evidence can not sustain. 4. Mr.V.J.Dixit, learned Senior Counsel instructed by Mr.M.S.Mahajan, advocate for Respondent Nos.1 and 2 strenuously contended that: (a) No error can be found in the orders impugned. The appellants have never applied for adducing the evidence. When the appellants themselves had never offered to adduce evidence then no error is committed by the Joint Charity Commissioner and District Judge in passing the impugned judgment. (b) It is for the appellants to prove the genuineness of the Vyavasthapatra, so also they have to prove the contents. No details are given regarding who has written the said document, 7 S.A.No.702/10 where it has been typed. No further details regarding the same are given. (c) The person who is allegedly nominated according to the said alleged Vyavasthapatra i.e. Uddhav Maharaj is not coming forth and staking his claim. In absence of that the appellants could not have approached the authority nor the said Revision could have been entertained on that count. (d) The document had not seen the light of the day for seven (7) months after the acceptance of change report. Even the appellants claim that they were present on each and every function. So also the last rites and rituals of Narayangiri Maharaj. That time also they have never said that Narayangiri Maharaj has nominated his successor. The appellants during the proceedings before the Joint Charity Commissioner has submitted the copy of Vyavasthapatra filed by them to the advocate of the present Respondents. The said copy of Vyavasthapatra given to the present Respondents before the Joint Charity Commissioner did not 8 S.A.No.702/10 bear the signature of attesting witnesses, whereas the Vyavasthapatra filed in the Court by the appellants shows the same being signed by two attesting witnesses. The copy which was served on the advocate of the present Respondents has been produced before the Joint Charity Commissioner by the advocate by making an endorsement on the overleaf that it is the said copy which is served upon him. All these facts go to show that the said document is a got up document. 5. Ramgiri Maharaj was disciple of Narayangiri Maharaj. All the trustees have affirmed his appointment. Even those trustees who had initially taken objection have withdrawn their objection of his credentials and he being disciple of Narayangiri Maharaj. 6. In light of the above, following substantial questions of law arise : "(i) Whether the finding on the said Vyavasthapatra could have been arrived at without 9 S.A.No.702/10 affording opportunity of evidence to the parties.? (ii) When the authority is deciding a particular issue or the genuineness of a document then whether it is sufficient for the authority/Court to be prima facie satisfied or the authority/Court has to give concluded finding." 7. Admit. 8. Taken up for final hearing with the consent of the parties. 9. I have heard the parties at length and I have also gone through the record. 10. The fact that the present appellants were not before the Assistant Charity Commissioner is not disputed. The present appellants had challenged the change report by filing Revision as provided U/s 70-A of the Bombay Public Trusts Act, before the Joint Charity Commissioner, Aurangabad, whereby the 10 S.A.No.702/10 Assistant Charity Commissioner accepted the change reported by the reporting trustee to the effect that the Executive Body of the Trust unanimously elected Haribhatka Parayan Ramgiri Maharaj as Mathadipati/President in the meeting dated 2.4.2009, on account of the death of the Mathadipati Narayangiri Maharaj. 11. The bone of contention of the appellants is that Haribhakta Parayan Narayangiri Maharaj, during his life time had appointed Shri Uddavguru as Mathadipati by virtue of Vyavasthapatra dated 15.2.2009. According to the appellants, the same is signed by Narayangiri Maharaj and is attested in presence of two witnesses of which one is appellant No.4. The joint Charity Commissioner disbelieved the said Vyavasthapatra and accepted the contention of the Respondents that the said Vyavasthapatra is suspicious document. 12. The District Judge-3, Aurangabad, before whom Misc. Application was filed U/s 72 of the Bombay Public Trusts Act, challenging the 11 S.A.No.702/10 judgment of the Joint Charity Commissioner also negatived the contention and held that the said Vyavasthapatra is surrounded by suspicious circumstances and the Joint Charity Commissioner was right in refusing to accept the said document, even at a prima facie stage. 13. When an authority or a Court has to decide on a particular document i.e. its genuineness, authenticity and correctness, it has to conclusively conclude about its finding at least by preponderance of probabilities. Even the District Court in para 10 of its judgment had observed that the learned Joint Charity Commissioner was right in refusing the said document "even at prima facie stage" The Court was finally deciding the proceeding and as such the Court has to give a final verdict on the said document and can not just say that even at a prima facie stage, the same need not be considered. 14. The appellants had averred about the execution of the said Vyavasthapatra by 12 S.A.No.702/10 Narayangiri Maharaj. The same was denied by the Respondents. In such circumstances, a duty was cast upon the authority to give a conclusive finding over the same. 15. The provisions of Section 70-A gives powers to the Joint Charity Commissioner to record evidence in revision also. So also Section 72 of the said Act, gives powers to the District Court to record the evidence. When the genuineness of the document was a subject matter of controversy then before coming to any conclusion, it would have been in fitness of things for the authorities to afford an opportunity to parties to adduce evidence. It does not appear that the case was at any time fixed for evidence of the parties nor the authorities had called for the evidence in that regard. One can not conclude its finding about the genuineness of the document, its execution, contents without evidence on record. No doubt, the Court has discussed some surrounding circumstances that the said Vyavasthapatra is computerised print out. The appellants did not 13 S.A.No.702/10 demonstrate nor explain in what circumstances the said document was prepared, who dictated it and at what place. So also the said document was not produced earlier except for the first time in Revision before the Joint Charity Commissioner and the said person in whose favour Vyavasthapatra i.e. Uddhav Maharaj is not coming forward to stake his claim. All these factors would have been proved or disproved by the respective parties on adduction of evidence. Even Section 70-A of the Bombay Public Trusts Act, gives suo-motu powers to the Joint Charity Commissioner to himself take such additional evidence. 16. The authorities had never fixed the case for adducing the evidence by the parties. In such circumstances, it would not be appropriate for the Respondents to suggest that the appellants never presented themselves for adducing evidence nor prayed for it. 17. It is not disputed that as per the Bye- laws/constitution of the trust, the first right 14 S.A.No.702/10 is given to Mathadipati to elect his successor and in absence of the same, the Executive Body of the Trust can elect Mathadipati, following the spiritual leader - disciple relationship. According to the appellants, the said right was exercised by the Mathadipati Shri Narayangiri Maharaj and for the said purpose had relied on the said Vyavasthapatra dated 15.2.2009. It would have been appropriate if the Joint Charity Commissioner would have taken evidence in that regard. Without taking evidence it would also be unsafe to give a conclusive finding on a particular document. 18. I am not inclined to accept the other arguments of the appellants regarding eligibility of Shri Ramgiri Maharaj and as to whether he is a disciple of Narayangiri Maharaj. All the Executive Committee Members have unanimously accepted that Shri Ramgiri Maharaj was disciple of Narayangiri Maharaj. Even the trustees who had raised objection had withdrew the same. No other persons had disputed about the eligibility of Ramgiri Maharaj to succeed as Mathadipati and 15 S.A.No.702/10 that he was disciple of Narayangiri Maharaj and at his instance was residing at the place of the brother of Narayangiri Maharaj. Both the authorities had discussed on this aspect and the same is the finding of fact. As such unless the Vyavasthapatra dated 15.2.2009 produced by the appellants is proved, the change report can not be set aside. Whether the said Vyavasthapatra was executed by Narayangiri Maharaj, whether its contents are true and correct, whether it had the signature of witnesses at the time it was executed, its genuineness and authenticity. The copy of said Vyavasthapatra supplied to Respondents was bearing signatures of attesting witnesses or not. All these questions would be required to be dealt with by adducing evidence. As in the present case that has not been done, I quash and set aside the impugned judgments and orders. The Second Appeal is allowed to the extent of quashing and setting aside the judgment and order dated 25.6.2010 delivered by the Joint Charity Commissioner in Revision No.42/2009 and the judgment and order dated 06.10.2010 passed by the District Judge-3, Aurangabad in MARJI No. 16 S.A.No.702/10 313/2010. The matter is remitted back to the Joint Charity Commissioner,Aurangabad. 19. The appellants who are revision petitioners before the Joint Charity Commissioner shall have an opportunity to adduce the evidence on the Vyavasthapatra produced by them before the Joint Charity Commissioner dated 15.2.2009. 20. The Joint Charity Commissioner after giving opportunity to the parties to adduce the evidence on said document, shall decide the said revision. 21. The parties to appear before the Joint Charity Commissioner in Revision on 2.5.2011. (S.V.GANGAPURWALA,J.) asp/office/sa70210 17 S.A.No.702/10