1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.2205 of 2008 Shree Shreshta Sevashram (Ratnagiri) Mumbai through Trustees: Atmaram Shantaram Raut & ors. Appellants Vs. Abhay M. Jain & ors. Respondents Mr.R.S.Apte, Senior Advocate with Mr.Vaibhav Patankar for appellants. Mr.A.A.Kumbhakoni with Mr.R.D.Suryawanshi for respondent no.1. Mr.Rahul Kate for respondent nos.2 to 17. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. Reserved on : January 29, 2009. Pronounced on : March 6, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) : 1. Heard Mr.Apte, the learned Senior Counsel with Mr.Patankar for the appellants and Mr.Kumbhakoni with Mr.Suryawanshi for respondent no.1. Mr.Kate appears for respondent nos.2 to 17. 2. This appeal arises from the judgment and order dated 31/7/2008 rendered by the Joint Civil Judge, Senior Division at Ratnagiri thereby dismissing Special Civil Suit No.87 of 2005 filed by the appellants - plaintiffs. By consent of the parties 2 the appeal was heard so as to be decided at the admission stage itself and more so when private paper-book copies have been circulated. The R. & P. has also been received and we have perused the same. 3. The plaintiffs claim to be the Trustees of Shree Shreshthasevashram (Ratnagiri) Mumbai which has been registered as a Public Trust on 25/9/1968 under Registration No.E-3825 (Mumbai). The suit property is the land admeasuring 8971.50 sq.mtrs. located in City Survey Nos.695, 695/1/ to 695/6 (Old Survey Nos. 423C, 423 A1, A1 B, Survey Nos.423 A1, A1, A, Hissa No.2 and registered House No.766, Dharmashala No.766, temple of Shri Anandmurti bearing No.766B, washroom, bathroom, cement water tanks, main gate, arch etc. situated at village Zadgaon, Taluka and District Ratnagiri. The plaintiff claimed that the said suit property was in possession and occupation of the plaintiff - Trust and as per them, the said property was purchased by late Shri Vasudeo Nilkanth Samant in the year 1924 from one Shri Barve and subsequently by the financial assistance given by Shri Anant Ganesh Prabhudesai, late Vasudeo had constructed house bearing No.766. Vasudeo had four brothers viz. Vishnu, Ramchandra, Laxman @ Bhau and Madhukar. 3 Laxman @ Bhau was born in the year 1906 and got employed as a Clerk with the Court at Vengurla sometimes in the year 1928 or so. It was claimed that Bhau had revelations of God in or about 1928 and he resigned from service under the guidance of Anant Prabhudesai and started worshipping Shri Andandmurti Shri Anant Prabhudesai was also the follower of Anandmurti. Bhau remained unmarried and on the demise of Vasudeo in the year 1931 Samant brothers sold the property to Anant Prabhudesai for Rs.2500/- vide sale deed dated 29/10/1931. However, as per the registered sale deed dated 20/8/1957 Anant Prabhudesai sold the property to Bhau for Rs.2500/- as he was worshipping and was engaged in the devotional activities of Shri Anandmurti. Plaintiffs claimed that the said property was purchased by Bhau from the amount of donations provided by the devotees from time to time and he also utilised the said property for the devotional work of Shri Anandmurti and Shree Shreshtasevashram and hence it belonged to the trust though it was not shown or entered as such when the trust was registered on 25/9/1968. 4. The plaintiffs further contended that around the year 1959, some of the devotees got the statue of 4 Deity made at Mumbai and established it in the Ashram at Ratnagiri in the suit property. The activities of the Deity started at Mumbai as well as at Ratnagiri and Bhau had proposed to hand over both the Ashrams to the trustees and this proposal was published by him in December, 1960. He had also sent letters to the devotees to this effect and consequently on 29/9/196 the Trust was registered with the Charity Commissioner at Mumbai. The ownership of the suit property from 1931 to 1957 remained with late Shri Anant Ganesh Prabhudesai and subsequently it was with Bhau who had severed his relations with other family members till he died on 26//1982. The plaintiffs claimed that for about 70 years the suit property was meant and utilised only for the devotion activities of Shri Anandmurti, however, in the year 1985 Bhau’s brother Madhukar and Smt. Sushila Vishnu Samant as well as Smt. Indumati @ Vijaya Laxman Samant (sister-inlaw) connived and got their names entered as the owners of the suit property in place of Bhau. Special Civil Suit No. 63 of 2000 was filed against the defendant nos.2 to 17 and they were restrained by an order of temporary injunction not to alienate the property. However, by allowing application filed by the defendants under Section 22A of the Bombay Public 5 Trusts Act, 1950, the suit came to be dismissed on 22/6/2005. In the meanwhile, the trustees approached the Charity Commissioner, Mumbai for a declaration that the suit property belongs to the Trust. 5. The suit property was sold to defendant no.1 by sale deed dated 12/8/2005 by defendant nos.2 to 17, while the cases were pending. The Collector had allowed the appeal of the Trust in Reference No. 12/3 on 4/12/2002 and set aside the resolution passed by the Municipal Corporation, Ratnagiri and directed the suit property to be recorded in the name of the Trust. Defendant Nos.2 to 17 had approached the Divisional Commissioner, Konkan Division in Appeal No. 47 of 2003. The application submitted before the Charity Commissioner was dismissed and presently an appeal thereon is pending. Under these circumstances, the plaintiffs filed Regular Civil Suit No. 87 of 2005 for permanent injunction and for a declaration that the sale deed registered on 12/8/2005 in favour of defendant no.1 and in respect of the suit property be cancelled and declared as illegal and null and void. The suit was opposed by the defendant nos.2 to 17 by filing Written Statement at Exh.55, whereas defendant no.1 opposed the suit by 6 filing Written Statement at Exh.59. It was contended that unless permission from the Charity Commissioner was obtained by the plaintiffs, the suit could not have been filed. So far as the title of the property was concerned, it was submitted that at no point of time the suit property and particularly the land admeasuring 65.6 Are was transferred in favour of the Trust and even after its registration the suit property was not shown as the property of the Trust. The defendant nos.2 to 17 contended that the property was initially sold by Samant brothers to Prabhudesai and he, in turn, sold it to Bhau in the year 1957, but it was not purchased from the funds collected by way of donations from the devotees. They further claimed that they are the LRs of Bhau and, therefore, their names were rightly entered as the owners of the suit property. The defendant no.1 claimed that he was a bonafide purchaser. 6. The trial court framed the following 11 issues and recorded the conclusions as noted against each oft he issues:- Issues Conclusion 1. Whether Plaintiff Trust Issue not considered has proved that Trust and not required to 7 Property is owned by the be replied. trust? 2. Whether Plaintiff has Negative proved that Defendant No.1 has raised objection and created obstacle by saying that he is going to provide the construction in the Suit Property? 3. Whether Defendant No.1 has Negative proved that he has become the owner of the suit property as per the Registered Sale Deed dated 12/8/2005 executed by Defendant Nos.2 to 17? 4. Whether Plaintiff Trust has Negative proved that Sale Deed executed by Defendant Nos.2 to 17 in favour of Defendant No.1 is illegal? 5. Whether Plaintiff Trust has Issue not proved that property which considered and was acquired as per the not required Sale Deed dated 20/8/1957 to be replied. was purchased out of amount of donation of the trust? 6. Whether this court has Positive jurisdiction to try and entertain this suit as per the provisions of Bombay Public Trusts Act, 1950? 7. Whether Plaintiff Trust is Negative eligible to obtain permanent injunction order against the Defendant? 8. Whether Plaintiff Trust Positive has proved that Sale Deed which was made on 12.8.2005 between Defendant No.1 and 2 to 17 is getting obstructed by the principle of lis pendence? 8 9. Whether Plaintiff has proved Issue not that Signatures and Thumb considered and impression of Defendant no.6 not required to on power of attorney dated replied. 4/3/2005 is bogus? 10. Whether plaintiff has proved Issue not that Sale Deed dated considered and 12/8/2005 are out of the not required to provisions of Registration be replied. Act? 11. What is final order and As per final decree? order. 7. Though the suit came to be dismissed, the trial court held that the sale deed dated 12/8/2005 between the defendant no.1 and defendant nos.2 to 17 was hit by the principle of lis pendence. It further held that defendant no.1 could not prove that he had become the owner of the suit property as per the sale deed dated 12/8/2005. At the same time, the trial court held that the plaintiff-Trust could not prove the said sale deed to be illegal. The first and foremost issue as to whether the plaintiff-Trust had proved that the suit property was owned by it was not considered and replied by the trial court. Mr.Apte, the learned Senior Counsel for the plaintiffs has referred to the Full Bench decision of this court in the case of Keki Pestonji Jamadar vs. Rodabai Khodadad Merwan Irani [AIR 1973 Bombay 130] [AIR 1973 Bombay 130] [AIR 1973 Bombay 130] and 9 submitted that the issue as to whether the suit property belongs to the plaintiff-Trust cannot be decided by the Charity Commissioner in an application filed under Section 79 of the Act and, therefore, the bar of jurisdiction of the Civil Court under Section 80 of the Act is not applicable in the instant case. Mr.Apte submitted that on the basis of the averments made by the plaintiffs, the issue regarding the title of the plaintiff-Trust over the suit property requires evidence to be recorded and more particularly evidence to the effect that the said property was purchased by late Bhau from the funds collected by the Trust by way of donations from the devotees can be gone into only by leading evidence in a Civil Suit and such a complex issue cannot be decided by the Charity Commissioner in an application filed under Section 79 of the Act. As per Mr. Apte the order passed by the trial court is not in keeping with the law laid down by the Full Bench in Keki Pestonji Jamadar’s case (Supra) and he, therefore, urged before us that the suit is required to be restored with a further direction to the trial court to record findings on issues no.1 and 5 as framed by it after allowing the parties to lead documentary as well as oral evidence. 10 8. Mr.Kumbhakoni, the learned counsel for the respondent no.1, on the other hand, supported the impugned decree and submitted that the suit filed by the Trust was not maintainable unless and until the property was decided to be a Trust property under Section 19 or 22 of the Act. To defend the decree Mr.Kumbhakoni has relied upon the decision of this Court (Single Bench) in the case of Mrs. Jankibai Prahladrai Brijlal Seksaria Vs. Kashinath Raghunath Kelkar [1972 [1972 [1972 Mh.L.J. 92] Mh.L.J. 92] Mh.L.J. 92] and prayed for dismissal of the appeal. He further submitted that the defendant nos.2 to 17 were the LRs of late Bhau and as the suit property was standing in his name all along as the owner, the trial Court rightly held that the sale deed dated 12/8/2005 was not illegal. 9. The Full Bench of this Court in Keki Jamadar’s case (Supra) framed the following three questions: (1) Is the question whether the author of the trust was the lawful owner of the property of which he has created the trust or had otherwise authority to create the particular trust, covered by section 79 read with section 11 80 of the Bombay Public Trusts Act, 1950? (2) Can a person who has once appeared in the proceedings under the Bombay Public Trusts Act and has made his contentions therein on the above question, bring a suit in a Civil Court in respect of such a question? Or, (3) Has the Civil Court no jurisdiction to deal with or decide such a question by reason of section 80 of the Act? 10. While answering the first question in the negative the Full Bench held as under: (a) For deciding whether Section 80 is attracted in a given case, one must consider what, in substance and not merely in form, is the nature of the claim made in the suit and the real relief sought therein. If, in order to afford that relief, it is necessary for the Court to decide or deal with a question which by or under the Act is to be decided or dealt with by an officer or authority appointed under the Act, the Civil Court’s jurisdiction 12 in that behalf is ousted. (b) It is true that ouster of jurisdiction of Civil Courts is not to be readily inferred and the normal rule is the one contained in Section 9 of the Code of Civil Procedure that Civil Courts have jurisdiction to try all suits of civil nature. But this rule is subject to the exception contained in that section itself and the exception is that the cognizance of certain suits by Civil Courts may be expressly or impliedly barred. (c) Section 79(1) provides expressly that the question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner and such decision shall be final and conclusive. (d) The purpose of the Act, the procedure prescribed for inquiries under Section 19, the absence of any remedy under the Act to those who were not parties to the inquiry under 13 Section 19 but whose anterior or superior title would be concluded by the decision in that inquiry and the general scheme of the Act, all tend to show that questions of title to the trust property are outside the scope of the inquiry under Section 19 of the Act. (e) The procedure prescribed by the Act for the conduct of inquiries under Section 19 is wholly unsuited to a proper and effective adjudication of disputed titled to the trust property. Neither the Act nor the Rules contemplate that persons who claim adversely to the trust or who dispute the right or title of the author of the trust to the trust property must be heard in the inquiry under Section 19. Facts pertaining to the history of title to the trust property do not find a place in these provisions, because they do not constitute particulars in the sense in which that word is used in Section 18(5) and Rule 6. (f) The contention that a tribunal of exclusive jurisdiction also possesses the right to decide questions which are incidental 14 to the determination of the main question does not carry the matter any further. The question as regards the title of a third party to the trust property is not by any means a question incidental to the determination of the main question whether the particular property is the property of the public trust. A provision of ouster like the one contained in Section 80 of the Act does not depend for its application upon whether the person who raises the particular question in the suit was or was not a party to the proceeding before the tribunal in which the exclusive jurisdiction to decide that question is vested. The decision whether the trial of a question is barred under Section 80 depends on whether that question is to be decided by the Deputy or Assistant Charity Commissioner. If the question is outside the pale of the inquiry envisaged by Section 19, the Civil Courts would have jurisdiction to decide or deal with the question. The question of ouster under Section 80 has to be decided by applying an objective test viz. Is the particular question one which by or under the 15 Act is to be decided or dealt with by the Deputy or Assistant Charity Commissioner and is his decision made final and conclusive by the Act?" 11. In the instant case the plaintiffs approached the trial Court stating that after the family of defendant nos.2 to 17 (Samant brothers) sold the suit property to Shri Anant Prabhudesai on 29/10/1931, the property was handed over to late Bhau for devotional purpose and late Bhau did not have any source of income of his own. In 1935 late Bhau published two books and he also visited Mumbai. In the year 1938 Shri Shreshtha Sevashram started Bhandara at Mumbai and at Ratnagiri Shri Anandmurti Anniversary. The devotees used to contribute by way of donations or by buying of books to the Trust and that is how on 20/8/1957 Anant Prabhudesai sold the suit property to late Bhau for Rs.2500/-. In short it is the case of the plaintiffs that the suit property was purchased from Shri Anant Prabhudesai from the income or funds available with the Trust and Bhau did not have any personal income or source of income from the family property as such. The plaintiffs claimed that other than the suit property after it was sold to Shri 16 Anant Prabhudesai, the family of defendant nos.2 to 17 did not have any other property so as to generate income to buy the suit property in the year 1957. The plaintiffs state that the suit property was purchased from the exclusive income of the trust and, therefore, though it was standing in the name of late Bhau, it was meant to be a property for and of the trust and in any case it was not a family property of defendant nos.2 to 17. 12. In our opinion the learned trial Judge committed an error in not adjudicating upon Issue nos.1 and 5 i.e. whether the suit property belongs to the trust and whether the suit property was purchased by Bhau as per the sale deed dated 20/8/1957 from the income / donations received by the trust. These questions went to the root of the controversy between the parties and more particularly the title of the suit property and these issues cannot be tested in an application filed under Section 79 of the Act as the same are required to be decided by adducing evidence both oral as well as documentary. The issue of ownership of the trust of the suit property is a mixed question of facts and law and as held by the Full Bench in Keki Jamadar’s 17 case (Supra) it falls in issue no.1. The title of the suit is a disputed question and falls outside the pale of enquiry under Section 19 of the Act. Hence the Civil Court will have the jurisdiction to decide the above stated issues or more particularly issue nos.1 and 5 framed by the trial Court. Mr.Apte, the learned Senior Counsel appearing for the appellants is, therefore, right in his submissions that the decision of the Full Bench in Keki Jamadar’s case is applicable to the facts of the instant case as well and consequently the suit will have to be restored to the file of the trial Court so as to adjudicate upon Issue Nos.1 and 5 framed by it, after giving to the plaintiffs and the defendants due opportunity to adduce additional evidence. Section 80 of the Act has no application while deciding the main issue of title of the suit property. It is not the case of the defendant nos.2 to 17 that the suit property was not sold to Anant Prabhudesai on 29/10/1931 and that it remained in the ownership of Shri Prabhudesai till it was resold on 20/8/1957 to late Bhau. Whether the sale transaction dated 20/8/1957 is a transaction from the funds of the Trust or it is a transaction from the income of the Samant family is a question which requires to be decided on the basis of the 18 evidence that the parties may adduce and the same question goes to the root of the lis. The view taken by the trial Court that issue nos.1 and 5 are not required to be decided is unsustainable in law. 13. Hence this appeal succeeds and the same is hereby allowed. The impugned judgment and order dated 31/7/2008 is hereby quashed and set aside. Special Civil Suit No.87 of 2005 is restored to the file of the learned Joint Civil Judge, Senior Division at Ratnagiri and it is directed that Issue Nos.1 and 5 shall be adjudicated upon by allowing the parties to lead additional evidence and findings thereon are recorded. On remand, the trial of the suit shall be concluded as expeditiously as possible and preferably before 31st July 2009. 14. Writ to go to the trial Court forthwith along with the R. & P. No order as to costs. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.) 19 6/3/2009 6/3/2009 6/3/2009 . Mr.Kate, learned counsel for the respondent nos.2 to 17 made an oral application for stay to this order. We hereby stay the order for a period of two weeks. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)