Bharatkumar Chhotalal Mehta ­ Opponents

[1.0] Present Civil Revision Application under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the petitioners herein – original defendant Nos.1 and 2 to quash and set aside the impugned order dated 11.03.2002 passed below Exh.77 in Trust Suit No.14 of 1996 by the learned Assistant Judge, Vadodara, by which the learned Judge while answering the preliminary issue which was framed pursuant to the order passed by this Court has held that the suit filed by respondent Nos.1 to 3 herein – original plaintiffs being Trust Suit No.14 of 1996 is maintainable in view of the provisions of Section 213(1) of the Indian Succession Act and Sections 50, 51 and 80 of the Bombay Public Trust Act. [2.0] That the respondent Nos.1 to 3 herein – original plaintiffs have instituted Trust Suit No.14 of 1996 against the defendants in the Court of Assistant Judge, Vadodara for a declaration and permanent injunction for the following reliefs.

1) Be pleased to issue permanent injunction against defendant No.2 restraining defendant No.2 from preventing the plaintiff from taking the income of this temple and from sleeping at the place of 'Samadhi' and be pleased to issue permanent injunction against defendant No.2 restraining defendant No.2 from preventing the plaintiff in doing the 'Seva­Puja', which the plaintiff was doing along with the mother of the plaintiff and is doing since the years together.

2) Be pleased to declare that as per the Will executed on 10.10.1940 by Mahant Madhavdasji in favour of the plaintiff, plaintiff is the sole and legal owner of the entire movable and immovable properties of defendant No.1 – Santram Mandir Trust taking income thereof and he was and is the sole successor as per the said Will.

3) Be pleased to declare that the so­called Trust of defendant No.1 is and was illegal, defective, null and void and whatever proceedings done in that regard are void.

4) Be declare that defendant No.2 is not the lawful Trustee of defendant No.1.

5) Be declare that defendant No.2 have had no any right or authority to function as a Trustee of defendant No.1 or to initiate any proceeding as such.

6) Be pleased to issue permanent injunction against defendant No.2 restraining defendant No.2 or his agents, servants, etc. from initiating any proceedings contrary to the rights and interest acquired on the basis of the Will executed in favour of the mother of the plaintiff by Madhavdasji.

7) Be pleased to award the cost of this suit from defendant Nos.1 and 2.

8) Be pleased to grant any relief of equity in favour of the plaintiff.

[2.1] It appears that the interim order passed in the aforesaid Trust Suit was the subject matter before this Court and in an Appeal From Order, this Court directed the learned Trial Court to frame the preliminary issue with respect to maintainability of the suit in view of Section 213(1) of the Indian Succession Act as well as sections 50, 51 and 80 of the Bombay Public Trust Act and therefore, the preliminary issue was framed by the learned trial Court at Exh.77 to decide whether the plaintiffs' suit is maintainable in view of section 213(1) of the Indian Succession Act and sections 50, 51 and 80 of the Bombay Public Trust Act or not?

[2.2] It was the specific case on behalf of the petitioners herein that as the dispute is with respect to the Trust property and even the Trust and a declaration was sought whether the suit property is not a Trust property and that the original defendant No.2 is not the trustee of the original defendant No.1 Trust and that all these aforesaid questions are required to be considered by the Charity Commissioner only and therefore, in view of Section 80 of the Bombay Public Trust Act, the Civil Court has no jurisdiction to entertain the suit with respect to the aforesaid prayers. It was also contended on behalf of the petitioners – original defendants that even with respect to the prayer of the plaintiffs for a declaration that they have exclusive right to perform the Seva­Puja in the temple run by the original defendant No.1 Trust is also required to be decided by the Charity Commissioner only. It was also contended on behalf of the defendants that even otherwise considering sections 50 and 51 of the Bombay Public Trust Act without the prior permission of the Charity Commissioner, the suit filed by the plaintiffs was not maintainable and therefore, it was requested to hold that the Civil Court has no jurisdiction to entertain the suit for the reliefs which are prayed in the suit.

[2.3] On the other hand it was the case on behalf of the plaintiffs that as the suit was for claiming reliefs of his personal rights may be with respect to the Trust property, the Civil Court would have jurisdiction to entertain the suit and there shall not be any bar either under Sections 50, 51 and 80 of the Bombay Public Trust Act. It was also contended on behalf of the plaintiffs that as the suit was filed for the personal rights of the plaintiffs, there would not be any bar under Section 213(1) of the Indian Succession Act and therefore, the suit is not barred under Section 213(1) of the Indian Succession Act.

[2.4] After hearing learned advocates appearing for respective parties, by impugned order the learned Assistant Judge, Vadodara has held the preliminary issue in favour of the plaintiffs and against the defendants by holding that the suit filed by the plaintiffs would be maintainable and as the plaintiffs have filed the suit for enforcement of his personal right and declaration and as the plaintiff has not filed the suit for public trust, Section 50 of the Bombay Public Trust Act would not be applicable and the consent of Charity Commissioner is not necessary. The learned Judge also observed that as the suit has been filed by the plaintiffs for obtaining declaration that defendant No.1 Trust is null and void and defendant No.2 is not legal trustee of defendant No.1 and for obtaining permanent injunction to restrain the defendants from preventing the plaintiff from performing the Seva­Puja and receiving the income of the temple, for the enforcement of his private right and therefore, there shall not be any bar to entertain the suit as provided under Section 80 of the Bombay Public Trust Act. Consequently the learned Assistant Judge answered the preliminary issue in favour of the plaintiffs and against the defendants holding that the suit filed by the plaintiffs is maintainable.

[2.5] Feeling aggrieved and dissatisfied with the impugned order passed by the learned Assistant Judge, Vadodara below Exh.77 in Trust Suit No.14 of 1996 in holding that the suit filed by the plaintiffs is maintainable, the petitioners herein – original defendants have preferred the present Civil Revision Application under Section 115 of the CPC.

[3.0] Shri Harshadray Dave, learned advocate appearing on behalf of the petitioners has vehemently submitted that the learned trial Court has materially erred in holding that the suit filed by the plaintiff is maintainable. It is submitted that as the reliefs sought by the plaintiff in the plaint are with respect to the Trust Property and with respect to the Trust and the said disputes can only be considered by the Charity Commissioner under the provisions of the Bombay Public Trust Act, the learned Judge ought to have held that in view of the bar under Section 80 of the Bombay Public Trust Act, for the reliefs which can be granted by the Charity Commissioner, the suit is not maintainable. It is further submitted that the learned trial Court has materially erred in holding that the suit filed by the plaintiffs is maintainable as the plaintiffs have claimed the right on the basis of his personal right. It is submitted that even if the plaintiffs might have filed the suit on the basis of their personal right but if the reliefs which are sought in the plaint can be granted by the Charity Commissioner only, the jurisdiction of the Civil Court is barred and ousted. It is further submitted that the reliefs which are sought by the plaintiffs that (1) the plaintiffs only has a right to perform the Seva­Puja in the temple run by the Trust; (2) that the plaintiff alone has the right to receive the income/proceeds from the income of the Trust; (3) that the suit property is not a Trust property; (4) that defendant No.1 Trust is not a public Trust; (5) that the defendant No.2 is not a Trustee of the defendant No.1 Trust, are all questions which are required to be decided and can be decided by the Charity Commissioner only under the provisions of the Bombay Public Trust Act and therefore, the Civil Court has no jurisdiction to entertain the suit for the aforesaid reliefs.

[3.1] In support of his above submissions, Shri Harshadray Dave, learned advocate appearing on behalf of the petitioners has heavily relied upon the following decisions of this Court.

1. 1961 GLR 564 Kuberbhai Shivdas vs. Mahant Purshottamdas Kalyandas

2. 1977 GLR 54 Yasinmian Amirmian Farooqui vs. I.A. Shaikh

3. 1982 GLH 1055 Bhupendra Rasiklal Kapadia vs. Jayantilal Vrajlal Shah

4. 1984 GLH 1134 Jai Ranchhod Bhogilal Sevak & Ors. vs. (Shri) Thakorlal Pranjivandas Jumkhawala and Ors.

5. 1985 GLH 889 Vileshkumar Shantilal Acharya vs. Dhansukhlal J. Gajjar

6. 1985 GLH 597 Sherasiya Saji Alavadi Momin & Ors. vs. State of Gujarat & Ors.

7. 1987(1) GLR 550 Trustees of Jam Jodhpur Sthanakvasi Vardhman Vanik Jain Sangh vs. Trambaklal Jivaam

8. 1988(1) GLH 539 Patel Nanji Devji and Ors. vs. Patel Jivraj Manji & Ors.

9. 1990(1) GLH (UJ) 18 Indiraben D/o.Sevak Krishnalal vs. Manager, Dakor Temple Committee and Others

10. 1998(1) GLH 127 Trustees of Hareshwar Mahadev Trust vs. Trustees of Shri Jasvantsinhji Audichya Brahman Boarding Vidyarthibhavan & Ors.

11. 2003(3) GLH 306 Ambalal Okarlal Patel & Ors. vs. Filoman Pathubhai Patel & Ors

12. 2009(20) GHJ 431 Sevantilal Jaskaranbhai Ajbani vs. Rupvijayji Maharaj Dellano Upashraya Trust Relying upon above decisions and making above submissions, it is requested to allow the present Civil Revision Application.

[4.0] Present Civil Revision Application is opposed by Shri K.M. Bhut, learned advocate appearing on behalf of the original plaintiffs. It is submitted that as the suit filed by the plaintiff was for his personal right for a declaration that the plaintiff alone has a right to perform the Seva­Puja and therefore, the learned trial Court has rightly held that sections 50, 51 and 80 of the Bombay Public Trust Act would not be applicable. Therefore, it is submitted that the learned trial Court has not committed any error and/or illegality in holding that the suit filed by the plaintiff is maintainable. Shri Bhut, learned advocate appearing on behalf of the original plaintiffs has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Bishwanath vs. Thakur Radha Ballabhli reported in AIR 1967 SC 1044 as well as the decision of the learned Single Judge of this Court in the case of Malek Chitoo Rasul reported in 1966 GLR 1011 as well as the decision of the Gauhati High Court in the case of Manaharmayun vs. Sakhi Gopal reported in AIR 1980 Gauhati 16 in support of his submissions that for the reliefs sought/prayed in the plaint/suit, consent of the Charity Commissioner under Section 50 of the Bombay Public Trust Act before filing the suit would not be required and the suit filed by the plaintiff is maintainable.

[4.1] Shri Bhut, learned advocate appearing on behalf of the original plaintiffs has submitted that even there is suppression of material fact and earlier order passed by this Court dated 15.10.1999 in Civil Revision application No.1351 of 1999 is not disclosed by the petitioners. To the same, Shri Dave, learned advocate appearing on behalf of the petitioners has stated that as such there is no suppression of material fact. It is submitted that as such the order passed by this Court in Civil Revision Application No.1351/1999 has no relevance to the present suit and even present Civil Revision Application and the said Civil Revision Application No.1351/1999 was arising out of the proceedings initiated by the respondents herein under the provisions of the Indian Succession Act.

[5.0] Heard learned advocates appearing for respective parties at length and considered the plaint and the reliefs which are prayed and sought in the suit filed by the plaintiffs. As stated hereinabove, the plaintiff has instituted the Trust Suit in the Court of learned Assistant Judge, Vadodara for the follwing reliefs.

1. Be pleased to issue permanent injunction against defendant No.2 restraining defendant No.2 from preventing the plaintiff from taking the income of this temple and from sleeping at the place of 'Samadhi' and be pleased to issue permanent injunction against defendant No.2 restraining defendant No.2 from preventing the plaintiff in doing the 'Seva­Puja', which the plaintiff was doing along with the mother of the plaintiff and is doing since the years together.

2. Be pleased to declare that as per the Will executed on 10.10.1940 by Mahant Madhavdasji in favour of the plaintiff, plaintiff is the sole and legal owner of the entire movable and immovable properties of defendant No.1 – Santram Mandir Trust taking income thereof and he was and is the sole successor as per the said Will.

3. Be pleased to declare that the so­called Trust of defendant No.1 is and was illegal, defective, null and void and whatever proceedings done in that regard are void.

4. Be declare that defendant No.2 is not the lawful Trustee of defendant No.1.

5. Be declare that defendant No.2 have had no any right or authority to function as a Trustee of defendant No.1 or to initiate any proceeding as such.

6. Be pleased to issue permanent injunction against defendant No.2 restraining defendant No.2 or his agents, servants, etc. from initiating any proceedings contrary to the rights and interest acquired on the basis of the Will executed in favour of the mother of the plaintiff by Madhavdasji.

7. Be pleased to award the cost of this suit from defendant Nos.1 and 2.

8. Be pleased to grant any relief of equity in favour of the plaintiff.

[5.1] Considering the aforesaid reliefs it cannot be disputed that the dispute is with respect to the Trust/Trust property as well as the alleged right of the plaintiff to perform the seva puja and/or to get the proceeds from the income from the Trust property. It may be that the plaintiff might have prayed the aforesaid reliefs on the basis of his alleged personal right. Still, the dispute would be with respect to the Trust and Trust property. It is not in dispute that the original defendant No.1 is a public Trust registered under the Bombay Public Trust Act. It is also not in dispute that the suit property is declared as a public Trust under the provisions of the Bombay Public Trust Act and the same is also registered in the PTR to be maintained under the provisions of the Bombay Public Trust Act. It is also not in dispute that the defendant No.2 is declared as a Trustee of defendant No.1 Trust under the provisions of the Bombay Public Trust Act. Considering the provisions of the Bombay Public Trust Act whether a particular Trust is a public Trust or not and/or whether a particular property is a public Trust property or not and/or whether a particular person is a Trustee of the Trust or not are all questions which are required to be considered by the Charity Commissioner only under the provisions of the Bombay Public Trust Act. Whether a particular property is a public Trust property or not is required to be considered by the Charity Commissioner under section 19 of the Bombay Public Trust Act. Even whether any person has any right to claim the proceeds from the income of the public Trust property also is required to be determined and considered by the Charity Commissioner only. As observed by the Full Bench of this Court in the case of Jai Ranchhod Bhogilal Sevak & Ors. (Supra) as well as the learned Single Judge in the case of Indiraben D/o.Sevak Krishnalal (Supra), even an application before the District Court praying for injunction restraining the opponents from disturbing applicant in performing Seva­Puja in the temple, it is held that District Court has no jurisdiction to entertain such an application. Considering section 80 of the Bombay Public Trust Act save as expressly provided in the Public Trust Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under the Public Trust Act to be decided or dealt with by any officer or Authority under the Act, or in respect of which the decision or order of such officer or Authority has been made final and conclusive. Under the circumstances, for the questions which are required to be decided and dealt with by the Charity Commissioner under the provisions of the Bombay Public Trust Act, for the said questions/reliefs the jurisdiction of the Civil Court is ousted and barred. As stated herein above, whether defendant No.1 Trust is a public Trust or not; whether defendant No.2 is a Trustee of defendant No.1 Trust or not; whether the suit property is a public Trust property of defendant No.1 or not and even whether the plaintiff has exclusive right to get the proceeds from the income of the Trust property or not or even the plaintiff alone has right to perform Seva­Puja of the temple run by defendant No.1 Trust or not are all questions which are required to be adjudicated and decided by the Charity Commissioner only under the provisions of the Bombay Public Trust Act. Under the circumstances, for the reliefs sought in the plaint which are referred to hereinabove, the suit is not maintainable. Under the circumstances, it appears that the learned trial Court has materially erred in holding that the suit filed by the plaintiff is maintainable and that the Civil Court has jurisdiction to grant the reliefs which are prayed in the suit.

[5.2] It appears to the Court that the learned trial Court has materially erred in holding that the Civil Court has jurisdiction to entertain the suit and grant the reliefs as the reliefs sought by the plaintiff are for his personal right. However, the learned trial Court has erred in not properly appreciating the fact that still the dispute is with respect to the Trust and Trust property which are required to be decided by the Charity Commissioner only.

[5.3] Now, so far as the decisions of the Hon'ble Supreme Court in the case of Bhishwanath & Anr. (Supra) and even the decision of the learned Single Judge of this Court in the case of Malek Chitto Rasul (Supra) and even the decision of the Gauhati High Court in the case of Manaharmayun (Supra) relied upon by Shri Bhut, learned advocate appearing on behalf of original plaintiffs is concerned, this Court is in complete agreement that if the suit is filed by the Trustee either to protect the property of the Trust and/or against the defendant claiming interest adverse to Deity, Section 50 of the Bombay Public Trust Act would not be applicable. Even this Court has also taken the similar view holding that when the suit is filed by the Trustee to protect the property of the Trust, bar under Section 50 of the Bombay Public Trust Act would not be applicable. However, the aforesaid decisions would not be applicable to the facts of the present case. In the present case the suit is filed by the plaintiff for the aforesaid reliefs and not to protect the property or get the relief against the defendant who is claiming interest adverse to the Trust. As stated herein above, reliefs which are sought in the plaint are with respect to the Trust and Trust property which are required to be decided by the Charity Commissioner only. Under the circumstances, the aforesaid decisions would not be applicable to the facts of the present case.

[5.4] Now, so far as the submission on behalf of the original plaintiffs that there is suppression of material fact by the petitioners as the order passed by this Court dated 15.10.1999 in Civil Revision Application No.1351/1999 has not been disclosed in the present Civil Revision Application and therefore, to dismiss the present Civil Revision Application on the aforesaid ground is concerned, it is required to be noted that as such the order dated 15.10.1999 passed by this Court in Civil Revision Application No.1351/1999 has nothing to do with the controversy raised in the present Civil Revision Application. It appears that the aforesaid revision application was arising out of the order passed in a probate application which was initiated/filed by the original plaintiffs under the Indian Succession Act. Under the circumstances, it cannot be said that there is suppression of material fact as alleged. Under the circumstances, on the aforesaid ground, the present Civil Revision Application is not required to be dismissed.

[6.0] In view of the above and for the reasons stated above, the impugned order passed by the learned trial Court holding that the Civil Court would have jurisdiction to entertain and grant the reliefs which are prayed in the Trust Suit No.14/1996 and consequently holding that the plaintiffs' suit is maintainable cannot be sustained and the same deserves to be quashed and set aside and it is to be held that the Trust Suit filed by the original plaintiff for the reliefs sought in the aforesaid Trust Suit is not maintainable and is barred under Sections 50, 51 and 80 of the Bombay Public Trust Act and consequently it is held that the Trust Suit filed by the original plaintiff is not maintainable.

[6.1] In view of the above and for the reasons stated above, present Civil Revision Application succeeds. Impugned order dated 11.03.2002 passed below Exh.77 in Trust Suit No.14 of 1996 by the learned Assistant Judge, Vadodara is hereby quashed and set aside and the preliminary issue raised by the learned trial Court is answered in favour of original defendants and it is held that for the reliefs prayed in the Trust Suit, the aforesaid Trust Suit No.14/1996 is not maintainable. Rule is made absolute accordingly. No costs.

Sd/­ (M.R. Shah, J.) menon