1 S.A.NO.168.07 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO.168 OF 2007 1. Dattatray S/o Venkatrao Inge, (Died) Through his L.Rs. 1A) Kamlabai Dattatraya Inge, Age : 70 years, Occ : Household. 1B) Sharadkumar Dattatraya Inge, Age : 50 years, Occ : Agri., 1C) Suryakant Dattatraya Inge, Age : 45 years. 1D) Sudhir Dattatraya Inge, Age : 40 years. 1E) Sunil Dattatraya Inge, Age : 30 years. 1F) Dipali Dilip Vitekar, Age : 48 years, Occ : Household. 1G) Saroj Pramod Pansare, Age : 43 years, Occ : Household. 1H) Aparna Anil Bhalerao, Age : 35 years, Occ : Household. 2. Vinayak S/o Venkatrao Inge (Died) Through L.Rs. 2A) Vimalbai Vinayakrao Inge, Age : 72 years, Occ : Household. 2B) Vijaykumar Vinayakrao Inge, Age : 50 years. 2C) Chandrakant Vinayakrao Inge, Age : 45 years. 2D) Vitthalrao Vinayakrao Inge, Age : 35 years. 2 S.A.NO.168.07 2E) Shriram Vinayakrao Inge, Age : 32 years. 2F) Mohini Madanrao Patil, Age : 44 years, Occ : Household. 2G) Vidya Vilasrao Deole, Age : 40 years, Occ : Household. 3. Madhukar S/o Venkatrao Inge, Age : 44 years, Occ : Service, All R/o Sillod, Tq. Sillod, Dist.Aurangabad. ..APPELLANTS -VERSUS- Vishwanathrao Wamanrao Inge (Since deceased) Through L.Rs. 1. Ratnakar Vishwanath Inge, (Since deceased) Through L.Rs. A. Rajeshwar S/o Ratnakar Inge, Age : 30 years, B. Chandrashekhar S/o Ratnakar Inge, Age : 28 years, C. Dwarkabai W/o Vishwanath Inge, Age : 92 years, D. Sumanbai Ratnakar Inge, Age : 52 years, E. Maya W/o Diliprao Kanetkar, Age : 32 years. All R/o BehindBalaji Mandir, Inge Galli, Sillod, Tq. Sillod, Dist.Aurangabad. 2. Nagorao S/o Vishwanathrao Inge, (Since deceased) Through L.Rs. A. Prabhabai Nagorao Inge, Age : 50 years, B. Sanjay S/o Nagorao Inge, Age : 30 years, C. Ajay S/o Nagorao Inge, Age : 28 years 3 S.A.NO.168.07 D. Shubhangi D/o Nagorao Inge, Age : years. 3. Krishnkumar S/o Vishwanath Inge, Age : 35 years, Occ : Service, R/o As above. 4. Vijaykumar S/o Vishwanath Inge, Age : 32 years, Occ : Service, R/o As above. 5. Sow. Shamal W/o Vasant Kadi, Age Major, Occ: Household, R/o Aurangabad. 6. Charity Commissioner, Government of Maharashtra. ..RESPONDENTS WITH CIVIL APPLICATION NO. 8263 OF 2009 IN SECOND APPEAL NO. 168 OF 2007 Dattatray S/o Venkatrao Inge, (Died) Through his L.Rs. And others ... Applicants V E R S U S Vishwanathrao Wamanrao Inge (Since deceased) Through L.Rs. And others ... Respondents ... Mr.R. R. Mantri and Mr.R.C. Kulkarni, Advocates for the appellants-Applicants. Mr.S.S. Nirkhee, Advocate for respondent nos.3 to 5. ... CORAM : A.V.NIRGUDE, J. DATE :16TH FEBRUARY,2010 ORAL JUDGMENT : 1] This second appeal is challenging the concurrent 4 S.A.NO.168.07 findings recorded by the Courts below that the appellants could not be appointed as the trustees of the trust by name Balaji Sansthan, Sillod. 2] The facts leading to this litigation can be narrated as under:- . At village Sillod, there was an ancient Temple of Lord Balaji, which is now known as Balaji Sansthan. Some time prior to 1929, one Chimnaji Sakharam was found rendering the services to this Temple. The then Government recognized his services and granted him two agricultural lands totally admeasuring 22 Acres 30 Gunthas of village Sillod. This was a "service Inam" granted to Chimnaji Sakharam. It is not clear from the record as to on what date such grant was made but, there is no dispute between the parties that the grant was made in favour of Chimnaji Sakharam, as service Inam. After Chimnaji's death probably Balwant succeeded as Inamdar. Balwant died in 1912 (1321 Fasli). The Assistant Talukdar Saheb of the area started proceedings for appointing successor of Balwant. He stated that after Balwant's death, a proclamation was issued and certain claimants came forward and submitted their documents etc. He further held that successors did not come before him for quite some time. Thereafter, at one point of time, the Authorities considered the possibility of resumption of grant for want of succession, but they avoided doing so because Inam was service Inam given for 5 S.A.NO.168.07 performing services to the temple and such Inam could not be attached or resumed. The Assistant Talukdar then held that in such situation, a suitable person should be selected under section 230 of the Land Revenue Code (the Code) that was in force in the State of Hyderabad in those days). 3] The Assistant Talukadar then found that one Venkatrao of the same village was rendering the services to the temple and was found quite well versed in performing “Pooja” etc. The village officers sent a report in his favour, for being appointed as successor to the grant. Accordingly, Assistant Talukadar appointed Venkatrao as “Manager” in respect of ‘Inam lands’. Thus, Venkatrao came in control to the lands and also continued rendering the services to the temple. A number of orders, thereafter,were passed by the Revenue Authorities. Since 1955 the lands were shown owned by temple, but the record mentioned Venkatrao as "Mutsaddi" which i am told means Manager. This position continued till 1961. In 1960, the Bombay Public Trust Act 1952 came into force in this part of Maharashtra. Immediately, in 1961 two applications under section 18 came to be filed for registration of the Trust by name Balaji Sansthan, Sillod. One application was filed by none other than Venkatrao and other was filed by the Tahsildar. 4] After the learned Assistant Charity Commissioner held separate inquiries on these applications, he 6 S.A.NO.168.07 erroneously registered two separate Public Trusts in respect of one temple. In one case he appointed Venkatrao as Trustee holding that the office of Trustee would be inheritable. In the other case, he appointed Tahsildar as Ex-Officio Trustee. This anomalous position continued for quite some time. It appears Venkatrao remained in control of the Trust and its property till his death in 1979. On the other hand, the Trust registered on the application of the Tahsildar remained on paper. . After 1979 the son of Venkatrao (Dattatrya original appellant) made an application to the Assistant Charity Commissioner and sought his name to be recorded as trustee being son and successor by inheritance. The Assistant Charity Commissioner, after holding inquiry allowed his change report and recorded as sole trustee of the Trust. Even this position continued for quite some time. It was only in 1984, for the first time the original respondent No.1 Vishwanathrao filed a revision against various orders passed by the Assistant Charity Commissioner registering two separate Trusts and allowing change report of the original appellant before the Joint Charity Commissioner. The Joint Charity Commissioner allowed the revision and remanded the case back to the Assistant Charity Commissioner directing him to hold inquiry in the matter once again. Thereafter, for the 7 S.A.NO.168.07 first time these two parties stood against each other in a legal proceeding. On one hand original respondent Vishwanathrao claimed that he was legal heir of original grantee of the “service Inam” and so if at all Inam land is held to be a Public Trust property he should be appointed as Trustee. He also asserted that, it was he, who was rendering the services to the temple. He further asserted that the original appellant Dattatrya and his father had no concern to the temple as well as the Inam lands. On the other hand, the original appellant Dattatrya produced record to show that his father was in quite control of not only the lands but also the temple since his appointment as Mutsaddi in 1929. 5] The Courts below held that the original respondents could prove that being the legal heir of the original grantee of “service Inam” he was entitled to succeed not only the suit lands but also to get appointed as sole Trustee. It was further held that the mode of succession of the Trustee would be hereditary, with that they virtually terminated the rein of original appellant Dattatrya. 6] After hearing the submissions and after going through the record of the lower Court the following substantial question of law arose for my consideration in this appeal: 1] Whether the original respondent Vishwanathrao being legal heir of the Grantee (Inamdar-Balwant) was entitled 8 S.A.NO.168.07 to succeed to the “service Inam” lands? 2] If answer to this question is in the affirmative, would he be entitled to Trust ship? 7] The Courts below especially, the learned Joint Charity Commissioner held that the original respondent Vishwantrao succeeded in showing that, it was he, and his son Ratnakar who had managed the temple and the lands for 25 years continuously, prior to litigation started in 1984. I think this finding was erroneous. I found from the record that, after 1929 Venkatrao, the father of the original appellant virtually controlled the “service Inam” Lands and temple. There is no record to show this for the period between 1929 till 1955, but the Revenue Record from 1955 onwards till 1984 clearly established that it was Venkatrao who was in control of the “service Inam” lands. As said above, his name is shown as holder of the land as Manager of the Temple. The revenue record also shows that both these service Inam lands were under cultivation of the tenants. . One of the tenant deposed on oath that it was Venkatrao to whom he considered the landlord and paid him a rent etc. The oral evidence also proved that, it was Venkatrao who took electricity supply for the temple and got electric Meter installed in his name in the temple. However, the evidence shows that from 1984 onwards the Venkatrao and his son Dattatraya 9 S.A.NO.168.07 virtually lost control of the temple and its property- the "service Inam” lands. After 1985, when Assistant Charity Commissioner sent his Officers for inspection they found that the original respondent’s son Ratnakar was rendering the services to the temple etc. From this evidence it appears that, after dispute started in 1984 the original Dattatrya lost his control of the temple and the lands. Nonetheless one has to considered as to who was rendering the services to the temple as well as managing the lands when first move was made for registering the temple as Public Trust and registering the lands as Public Trust Property. Undoubtedly, it was Venkatrao, father of the original appellant, who was at the helm of affairs of the temple and lands. The question still remains as to whether Venkatrao in 1961 was entitled to appoint as Trustee for the proposed Public Trust. The answer is in negative. 8] In order to give answer to this question one must not lose sight of the fact that the lands were "service Inam" lands granted to the Chimaji, original grantee (Inamdar) for rendering the services to the Temple. The other question would be “what was mode of succession of this grant/Inam? It certainly was by inheritance. Though, the record does not show that grant was hereditary, the original Muntkhab has not come on record to clarify this, but it is clear from the facts of the case that this grant was hereditary. Balwant, son of Chimaji succeeded to the grant after 10 S.A.NO.168.07 his father’s death. After Balwant‘s death, the Authorities expected that legal heirs of Balwant would come forward and claim the succession. They in fact waited for quite some time for such legal heirs to come forward. Ultimately, rather reluctantly they adopted a via media and searched and found a suitable alternative in the form of Venkatrao. It is further pertinent to note that the authorities did not appoint Venkatrao as Grantee or Inamdar. They did not issue “Muntkhab” infavour of Venkatrao. They said they would appoint him as Manager. They used word “Mutsddi”, which means “Manager’. This indicates that the appointment of Venkatrao was a 'Stop Gap' Arrangement till the legal heir would come and claim the lands as of right. It also indicates that Venkatrao did not hold the land as Inamdar and so there was no question of his legal heir succeeding to the grant. 9] Mr.Mantri the learned Advocate appearing for the appellants argued that the moment in 1999 the authorities appointed Venkatrao as successor to the grant, the right to the property in favour of the legal heirs of Balwant come to an end. He asserted that the Inam was “service Inam” and therefore it had a condition of rendering services to the temple. He said, if the legal heirs of Balwant did not render the services to the temple and did not claim the succession to the grant/Inam their conditional right to succeed to the lands came to an end. He, thereby, 11 S.A.NO.168.07 suggested that Venkatrao thus became Inamdar, because he was rendering the services to the temple. Consequently, he said Venkatrao would take the lands as full fledged Inamdar and his legal heirs would be entitled to hold the land in inheritance. However, I am not inclined to accept this argument. 10] As said above, the Service Inam was given for rendering the services to the temple, it was religious Institution, the Inam was held for the benefit of religious Institution. In 1954 the Hyderabad Abolition of Inams and Cash grant Act 1954 came into force in the Hyderabad State. This Act was enforced for abolition of Inams and Cash Grants. Section 2 of the Act exempted the Inams held by or for the benefit of the charitable and religious Institutions from its operation. In other words, the Service Inam in this case continued unaffected. 11] In 1952, Hyderabad Atiyat Inquiries Act came into force. This Act was an attempt to amend and consolidated the law regarding Atiyat grants, Atiyat inquiries, inquiries as to claims the succession in Atiyat grants etc. This Act defined term Atiyat grants. It reads as under - S.2 (1) In this Act, unless there is anything repugnant in the subject or context.. (a)... (b)”Atiyat grants” means- 12 S.A.NO.168.07 (i) in the case of jagirs abolished under the Hyderabad (Abolition of jagirs) Regulations, 1358 Fasli (LXIX)of 1358 F) the commutation sums payable in respect thereof under the Hyderabad Jagirs (Commutation) Regulation 1359 Fasli (XXV of 1359 F.) (ii) Inams to which the Hyderabad Abolition of Inams Act, 1954 (VIII of 1955) is not applicable. (iii) in the case of inams abolished under the Hyderabad Abolition of Inams Act. 1954 (VIII of 1955) the compensation payable under that Act: (iv)cash grants to which the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952 ) is not applicable. (v) Cash grant temporarily continued under the Hyderabad Abolition of Cash grants Act, 1952 (XXXIII of 1952) : (vi) in the case of cash grants abolished under the Hyderabad Abolition of Cash Grants Act, 1952 (XXXIII of 1952) subject to payment of compensation, the compensation payable in respect thereof:] 12] It is clear from the definition mentioned above that Inam in question would be Atiyat grant, because it is Inam to which Hyderabad Abolition of Inams and Cash Grant Act is not applicable. Section 7 of this Act reads as under- 7. Succession :- Subject to the provision of this Act, succession to Atiyat grant shall, after the commencement of this Act, be regulated by the personal law applicable to the last holder. 13] The above mentioned provision, in 1952 onwards would apply to the suit “service Inam” lands. If it is held that Vekatrao was not grantee/Inamdar and was only holding lands till the legal heirs of the grantee would come and claim the property the legal heirs of 13 S.A.NO.168.07 original grantee Balwant would able to claim the suit land as per Personal Law applicable to the last holder -Balwant. Unfortunately, for the respondents they did not initiate any action under the provisions of Atiyat Inquiries Act,1952 against Venkatrao in respect of the suit land. However, the provisions of Section 7 would still protect their right to succeed to the suit lands. 14] In 1960 the Bombay Public Trust Act came in to force in this part of the State. In consequence thereof not only Venkatrao but also the Tahsildar initiated proceeding for registration of Public Trust, which is made in beginning of the judgment. I am assuming that at that time the respondent or original respondent Vishwantrao had come forwarded and opposed the applications for registration of the Trust etc., he could have either asserted that temple in question was his personal property and “service Inam” land could not have been registered as public trust properties. He could have at least asserted that being successor to the “service Inam” lands and since lands were granted for the service rendering to the temple he alone could be a Trustee of the Trust. He could have also asserted that Venketrao the defacto Trustee who was in control of temple and lands should be relieved from such responsibilities. In that situation Venkatrao had no case to claim either Trusteeship or grant/Inam of suit lands because he certainly was not the legal heir of the last holder of the grant. He 14 S.A.NO.168.07 was admittedly an outsider. And apperently as held above a Stop Gap Arrangement, a Manager appointed to look after the lands. As against him, though the original respondent Vishwanthrao was not in virtually control of the lands and temple, he could have certainly succeeded in showing that section 7 of the Atiyat Inquires Act,1952 would give him right to succeed to the grant/Inam. The only hitch in such claim was probably, he made his claim rather belated. The last holder of the grant died prior to 1979. It is said that Balwant the last holder died issueless, but had a brother by name Waman. Waman happened to be father of the original respondent Vishwanath. Vishwanath thus was nephew of the last holder of grant. So, he had apparently right to succeed to the lands. In such situation the Assistant Charity Commissioner would have no other alternative but to hold that Vishwanthrao was the only person entitled to be Trustee of the temple for which the “service Inam” lands were granted. When the lands were intrinsically connected to the temple and if the temple is undoubtedly a public place of worship dedicated to or for the benefit of members of Hindu community it ought to have been registered as a public trust under the provision of Bombay Public Trust Act 1960. In view of this, though Venkatrao was rendering his services to the temple and was maintaining the lands properly, he had no chance or right to get himself appointed as Trustee. Even mode of succession of trustee of such trust was a forgone conclusion. It was 15 S.A.NO.168.07 by inheritance only. I am, therefore, not inclined to allow the appeal. The Second Appeal stands dismissed. Consequently, the Civil Application No. 8263 of 2009 in Second Appeal No. 168 of 2007 stands disposed of. Sd/- (A.V. NIRGUDE, J.) MTK/ok