2010 STPL(Web) 1061 SC 1

Sainath Mandir Trust Vs. Vijaya

Supreme Court Judgements @ www.stpl-india.in

2010 STPL(Web) 1061 SC

SUPREME COURT OF INDIA

(MARKANDEY KATJU & GYAN SUDHA MISRA, JJ.)

SAINATH MANDIR TRUST…….Appellant

VERSUS

VIJAYA & ORS………………..Respondents

Civil Appeal No. 3030 of 2004-Decided on 13-12-2010.

Property Dispute

JUDGMENT

Gyan Sudha Misra, J.-This appeal by special leave has been filed against the Judgment and

Order dated 27.03.2003 passed by the High Court of Judicature at Bombay, Bench at Nagpur, in

Second Appeal No. 246 of 1990 whereby the appeal was dismissed on merit. Consequently, the

judgment of reversal passed by the Additional District Judge, Amaravati allowing the appeal and

setting aside the judgment and order of the Trial Court which had dismissed the suit of the

plaintiff/respondent, was upheld.

2. The origin of this appeal at the instance of the defendant/appellant herein emanates from a

Regular Civil Suit No. 166 of 1983 which had been filed by the deceased plaintiff-Shri Vitthal

Motiramji Mandale who is now represented by his legal heirs Respondent Nos. 1-7, for

possession and damages valued at Rs. 17,500/- in the Court of Civil Judge Senior Division,

Amaravati, against the appellant - Sainath Mandir Trust which is a registered public trust within

the provisions of Bombay Public Trusts Act 1950. The suit land comprises of a plot bearing No.

57, arising out of original fields bearing Survey No. 33, situated at Saturana in the outskirts of

Amravati Township. As per the case of the defendant/appellant herein, which admittedly is a

public trust, the suit property was dedicated to the idol of Saibaba by the respondent No. 8

/original defendant No.2 by way of a gift deed executed way back on 31.1.1974 which according

to the appellant's version, was immediately acted upon as possession was also handed over to the

appellant-trust which is in occupation of the suit property till date. It is the specific case of the

defendant/appellant that the suit plot was donated by way of a gift deed executed by the original

defendant No.2 /respondent No. 8 herein Shri Vasant Mahadeo Fartode on 31.1.1974 essentially

for building a residential accommodation for devotees of the Saibaba Mandir run by the

appellant-trust. Thus, by virtue of the gift deed, the admitted owner respondent No. 8 / original

defendant No. 2 Shri Vasant Mahadeo Fartode was divested of the title over the suit property

after he executed the gift deed and also delivered possession of the plot to the appellant-trust.

Hence, as per the case of the appellant Sainath Mandir Trust, the gift deed dated 31.1.1974 was

duly acted upon since the appellant immediately came in possession of the suit property and

continues to remain in possession of the same till date ever since 1974.

3. As against the aforesaid case of the appellant, the predecessor of the contesting respondent

Nos. 1-7, late Shri Vitthal Motiramji Mandale who is now legally represented by the respondent 2010 STPL(Web) 1061 SC 2

Sainath Mandir Trust Vs. Vijaya

Supreme Court Judgements @ www.stpl-india.in

Nos. 1-7, intended to purchase the suit property and therefore issued a notice in daily

"Matrbhumi" dated 2.10.1982 thereby inviting objections in respect of the said plot. Further, case

of the respondent Nos. 1 to 7 is that no objections were received in response to the notice as a

result of which the predecessor of respondent Nos. 1 to 7 i.e. late Shri Vitthal Motiramji Mandale

purchased the plot from the respondent No. 8-Shri Vasant Mahadeo Fartode by a registered sale

deed dated 14.10.1982 for a consideration of Rs. 17,000/-. As per the plaintiff/respondent's case,

they also claimed to have immediately taken possession of the said property after execution of the

sale deed and it is further averred that when the contesting respondents wanted to put fence

around the said plot, then on 4.12.1982 they noticed a board on the disputed plot which was put

up by the appellant-trust on which it was mentioned that the respondent No. 8/defendant No.2 had

given the said plot to the appellant-trust for construction of a residential accommodation for the

devotees of Saibaba Mandir. In view of this notice, the respondents sent a notice on 7.12.1982 to

the appellant-trust to remove the board and further do not obstruct to the fencing of the suit plot

which was responded by the appellant-trust stating that they are in possession of the suit plots

since 31.1.1974 and are owners of the plot in question and cannot be directed to vacate.

4. The respondent felt seriously aggrieved with this response and hence a Regular Civil Suit No.

166 of 1983 was filed by the predecessor of the contesting respondent Nos. 1 to 7 - Shri Vitthal

Motiramji Mandale for possession and damages valued at Rs. 17,500/- in the Court of Civil

Judge, Senior Division, Amaravati. The appellant-trust contested the suit by filing a written

statement on 19.12.1983 asserting their ownership and possession over the suit property since

31.1.1974. It was stated therein that the suit land had already been gifted to the appellant-trust by

gift deed dated 31.1.1974 which was properly executed and validly attested and had also been

acted upon by the parties concerned. It was, therefore, submitted therein that by virtue of the gift

deed respondent No. 8/defendant No. 2 had no subsisting title or ownership as regards the suit

property and as such he was not entitled to subsequently execute any sale deed in respect of the

suit property.

5. The learned IInd Joint Civil Judge, Junior Division, Amravati who tried the suit was finally

pleased to dismiss the suit and denied the relief regarding the recovery of possession of the said

plot. However, the suit was decreed to the extent of damages of Rs. 17,500/- to be paid to the

respondent/original plaintiff by the respondent No. 8/original defendant No.2 within 30 days

alongwith the costs of the suit. It was further directed that the respondent No. 8/original defendant

No.2 shall pay future interest on the principal amount of Rs. 17,000/- from the date of filing of

the suit till its full realization at the rate of Rs. 10/- per cent per annum to the predecessor of

respondent Nos. 1 to 7 herein as it was held that respondent No. 8 could not execute the sale deed

in favour of a third party i.e. the predecessor of respondent Nos. 1 to 7 herein as he had already

executed a gift deed in favour of the appellant way back on 31.1.1974 which was acted upon as a

result of which the appellant-trust was already in possession of the suit land. Thus, the Trial Court

was pleased to dismiss the respondent/ original plaintiff's claim in so far as the recovery of

possession of the suit plot is concerned.

6. The predecessor of the plaintiff/respondent Nos. 1 to 7 assailed the judgment and order of the

Trial Court before the Court of learned District Judge, Amaravati and the appellant-trust also filed

cross-objections challenging the findings of the trial court in so far as the validity of the gift deed

executed in favour of the appellant was concerned. It had been submitted therein that the gift

dated 31.1.1974 was for a price below Rs. 100 and it was in favour of the deity and as such was

admissible; hence the Trial Court committed an error in holding that the gift deed was not valid.

The appellant therein had also contended that the gift deed conferred a legal and valid title

coupled with possession in favour of the appellant-trust and hence the subsequent documents of

sale deed claimed to have been executed in favour of the plaintiff/contesting respondents ought 2010

not to have been ignored as the vendor Shri Vitthal Motiramji Mandale was not left with any title

concerning the suit property. It was further pointed out from various circumstances and evidence

brought on record, that a fraudulent collusion exited between the original plaintiff and the

defendant Nos.1 and 2 i.e. vendor and the vendee and the alleged sale deed did not confer any

title to the vendee since the vendor had already executed a gift deed in favour of the appellanttrust almost 8 years prior to execution of the gift deed which was acted upon and possession was

delivered to the appellant-trust. However, the First Appellate Court being the Court of Additional

District Judge, Amaravati was pleased to allow the appeal of the plaintiff/respondents and

rejected the cross-objections filed by the appellant-trust.

7. Being aggrieved by the Judgment and Order dated 4.5.1990 passed by the Additional District

Judge, Amaravati, the appellant-trust was constrained to prefer a Second Appeal No. 246 of 1990

before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur wherein the substantial

questions of law, inter alia, was raised that the civil suit filed by the plaintiff/respondent was

expressly barred in terms of the provisions of Sections 19, 20, 79 and 80 of the Bombay Public

Trusts Act 1950. The substantial question of law was further raised whether the gift deed dated

31.1.1974 being an Act of "Dedication" of the suit property by the respondent No. 8 to the deity

which is not a "living person" would not be "Dedication" of property in terms of Section 123 of

the Transfer of Property Act and hence whether the provisions of the same are not applicable to

the deed of gift which had been executed in favour of the deity. Substantial question was also

raised whether the suit could be entertained without permission of the Charity Commissioner

under Sections 50 and 51 of the Bombay Public Trusts Act 1950 which had not been obtained by

the original plaintiff prior to filing of the suit. The gift deed dated 31.1.1974 having been acted

upon in pursuance of which the appellant-trust came in possession of the said property since

31.1.1974 and continues to be in possession till date, could not have been ordered to be restored

in favour of the plaintiff/respondent predecessor as the sale deed dated 14.10.1982 which was

subsequently executed by the vendor, could not confer any right and title to the respondent /

purchaser as the plot in question had already been dedicated to the idol of which the appellant is

the trust.

8. The learned single Judge of the High Court of Bombay at Nagpur Bench, Nagpur, however,

was pleased to dismiss the appeal as it was held that Section 123 of the Transfer of Property Act

lays down the procedure in which the property can be transferred by way of a gift and it is

necessary that the said document should have been registered and it should have been signed by

the donor attested by two witnesses. It was held that none of the requirements have been

complied and, therefore, the appeal against the judgment and order of the Additional District

Judge, Amaravati was not fit to be entertained. Consequently the appeal stood dismissed against

which this appeal by special leave has been filed by the appellant -Sainath Mandir Trust and the

special leave having been granted in favour of the appellant, this appeal has come up before us for

hearing and its adjudication.

9. In so far as the contention of the plaintiff/respondent in support of the Judgment and Order of

the High Court as also First Appellate Court is concerned, the arguments advanced before the

Courts below have been reiterated which was accepted by the High Court which held that the gift

deed executed in favour of the deity of which the appellant is a trustee, conferred no right and

title in favour of the deity and therefore the donor had every right to execute subsequently a sale

deed in favour of the predecessor of the contesting respondents in view of which the suit filed by

the predecessor of contesting respondent Nos. 1 to 7 was rightly decreed in their favour by the

First Appellate Court being the Court of Additional District Judge which was upheld by the High

10. Learned counsel for the contesting defendant/the appellant-trust on its part submitted at the

threshold that the gift deed which was executed in favour of the deity clearly reveals that the

same is a "Dedication" to an idol and not a "living person" by the respondent No. 8/original

defendant No. 2 and thus the same can be said to be a valid transfer in terms of Section 123 of the

Transfer of Property Act. Elaborating on this aspect, it was submitted that the idea, intention and

the feelings of the donor behind the gift deed has not been taken into consideration and going by

the nomenclature of the document, if the intention of the donor is appropriately construed from

the words of the gift deed, the same will clearly and unambiguously suggest that the defendant

No.2-Vasant Fartode who was a devotee of Saibaba had dedicated the said property to the idol for

the construction of `Bhakta Niwas'. This issue was specifically raised in the cross-appeal filed

before the District Judge and was reiterated in the Second Appeal. The gift in question was a

`dedication to the idol' and hence the same was a valid transfer in favour of the appellant-trust

and, therefore, there was no question of any registration of the same, since the gift deed was

executed on 31.1.1974 and was clearly acted upon as possession was also handed over to the

appellant- trust. The finding of the Trial Court would clearly demonstrate that the appellant was

in possession of the said property in question and the same is an undisputed position. The very

fact that the suit for possession was required to be filed by the respondent/original plaintiff further

substantiates the fact that the gift deed was acted upon and possession was delivered to the

appellant-trust.

11. Supplementing the aforesaid arguments, it was still further contended that in view of the

"dedication" of the property to the idol of which the appellant is a trustee, any suit for possession

against such property could not have been filed without the requisite permission of the Charity

Commissioner under Sections 50 and 51 of the Bombay Public Trusts Act 1950. A mere perusal

of Section 50 Sub- Section (2) of the Bombay Public Trusts Act specifically indicates that "where

a direction or decree is required to recover the possession or to follow property belonging `or

alleged' to be belonging to a public trust" and a dispute arises in regard to the same, permission of

the Charity Commissioner was clearly a necessary legal requirement. Hence, it was submitted

that as the appellant-trust is in possession of the plot in question and the relief of possession was

sought by plaintiff/respondent, the requisite permission under Sections 50 and 51 became

mandatory before filing such a suit, failing which the suit ought to have been rendered as not

maintainable. The requirement or necessity of such a permission is the basic requirement at the

very threshold and it is impermissible for the Court to enter into the merits of the matter vis-`-vis

the validity of the transfer etc. in such a suit which does not comply with the basic requirement of

obtaining such a permission. Hence, it was contended that First Appellate Court as also the High

Court have clearly erred in going into the issues of title and validity of the transfer which are only

subsequent issues which would arise only if the suit qualified the test of Sections 50 and 51 of the

Act. The Courts below also failed to take into consideration that the suit was bad for non- joinder

of necessary parties in terms of Order XXXI Rule 2 of C.P.C. as all the trustees of the Trust were

not joined as parties and hence the Trial Court was clearly justified in dismissing the suit as not

maintainable for want of necessary permission of the Charity Commissioner under Sections 50

and 51 of the Act as well as non-joinder of all the trustees in terms of Order XXXI Rule 2 of the

C.P.C. It was also submitted that the appellant-trust has been in uninterrupted possession of the

suit land since 31.1.1974 and the suit property in question had already been included and

recorded by the Charity Commissioner as a property of the trust and the Change Report to that

effect was required in terms of Section 22 of the Bombay Public Trusts Act. It was finally

submitted that the property in question was gifted for a pious purpose of construction of `Bhakta

Niwas' and, therefore, considering the aforesaid factors and the comparative hardships to the

parties, the suit for possession is not only fit to be dismissed on the ground of its maintainability

but even on the merits of the matter.

12. Having heard the counsel for the parties and considering the merits of the arguments

advanced by learned counsel for the contesting parties, it is evident from the record that the

plaintiff/respondent first of all intended to purchase the suit property in the year 1982 and,

therefore, published a notice in the daily "Matrbhumi" dated 2.10.1982 whereby objections were

invited in respect of the said plot. It is the case of the contesting respondent Nos. 1 to 7 that since

no objections were received, the original plaintiff - Shri Vitthal Motiramji Mandale purchased it

from the respondent No. 8/original defendant No.2 by registered sale deed dated 14.10.1982 for a

consideration of Rs. 17,000/- but even as per the case of the contesting respondent No. 7, the

appellant-trust resisted their action in taking physical possession of the suit land as they were

restrained from putting up fence on the land in question which prompted them to immediately

take action and they were compelled to file a suit for possession. Thus, even as per their own

case, the plaintiff/respondent was not in possession of the plot in question. In addition to this, the

finding recorded by the Trial Court which has not been interfered either by the First Appellate

Court or the High Court, the plaintiff/respondent was not in possession of the suit property in

spite of the sale deed dated 14.10.1982 and the possession of the suit property was never

delivered to the plaintiff predecessor or their legal heirs i.e. respondent Nos. 1 to 7. It can

logically be inferred that it is for this very reason that the plaintiff/respondent had published a

notice in a daily newspaper "Matrbhumi" inviting objections before purchasing the property as in

the normal circumstance, if a sale deed is executed by a private party holding title to the suit

property in favour of another private party, the question of publishing a notice in the newspaper

does not arise since the transaction of sale between two private parties do not normally require

issuance of a notice in the newspaper inviting objections.

13. Under the aforesaid background, the contention of learned counsel for the appellant that

permission should have been obtained from the Charity Commissioner under Sections 50 and 51

of the Bombay Public Trusts Act assumes significance and its legal implication cannot be

overlooked. When the disputed plot had already been dedicated in favour of the idol by virtue of a

deed of gift, of which the appellant is a trustee and the same was acted upon as possession also

was delivered to the appellant trust, it was surely necessary for the plaintiff/respondent Nos. 1 to

7/purchaser of the suit land and also incumbent upon respondent No. 8 /vendor of the sale deed to

seek permission from the Charity Commissioner before a sale deed could be executed in regard to

the disputed plot and more so before a civil suit could be instituted. We, therefore, find substance

in the contention of learned counsel for the appellant, that the dedication dated 31.1.1974 of the

plot for charitable purpose in the nature of gift having been acted upon as a result of which the

possession also was delivered to the appellant-trust, the civil suit filed by the predecessor of

contesting respondent Nos. 1-7 for possession was expressly barred in terms of Sections 19, 20,

79 and 80 of the Bombay Public Trusts Act 1950.

14. It is no doubt true that the gift deed was an unregistered instrument and no title could pass on

the basis of the same under Section 123 of the Transfer of Property Act. However, when the

document is in the nature of a dedication of immovable property to God, the same does not

require registration as it constitutes a religious trust and is exempt from registration. We have

taken note of a Full Bench decision of the Madras High Court reported in AIR 1927 Mad. 636 in

the case of Narasimhaswami vs. Venkatalingam and others, wherein it was held that Section

123 of the Transfer of Property Act does not apply to such a case for "God" is not a "living

person" and so the transaction is not a "transfer" as defined by Sec.5 of the Transfer of Property

Act. Thus, a gift to an idol may be oral and it may be effected also by an unregistered instrument.

But a different view has been taken in the case of Bhupati Nath vs. Basantakumari, AIR 1936

Cal. 556; Chief Controlling Revenue Authority vs. Sarjubai, AIR 1944 Nag. 33. In the Full

Bench decision of the Madras High Court in the matter of Narasimhaswami (supra), it had been

argued that a gift to idol of lands worth over Rs.100 requires registration and that a mere recital

the deed of gift which had been made, would not pass property. But it had been held by the Full

Bench that dedication of property to God by a Hindu does not require any document and that

property can be validly dedicated without any registered instrument. In the aforesaid case, the

deed of gift was not to a specified idol but to the Almighty Sri Kodanda Ramachandra Moorti.

Dealing with this matter, the Full Bench took note of the observation in the matter of Pallayya vs.

Ramavadhanulu, reported in 13 M.L.J. 364 wherein it was held by Benson and Bhashyam

Aiyangar, JJ. that a declaration of trust in relation to immovable property for a public religious

purpose is not governed by the Indian Trusts Act which by S. 1 declares it inapplicable to

religious trusts. It was also held that S. 123 of the Transfer of Property Act has no application to

dedication of land to the public as the section only applied to cases when the donee is an

ascertained or ascertainable person by whom or on whose behalf a gift can be accepted or

refused. Taking notice of several authorities, it was held that no document was necessary for the

dedication of property to charity. The Full Bench recorded as follows:

"We have not been referred to any case where it has been held that an oral gift for a

religious purpose requires registration. In this connection, I may point out that S. 123 of

the Transfer of Property Act only applies to transfer by one living person to another".

S. 5 of the Act runs as follows:

"In the following sections, `transfer of property' means an act by which a living person

conveys property, in present or in future, to one or more other living persons, or to

himself and one or more other living persons and `to transfer property' is to perform such

act. The learned Judges noted that a gift to God which in the said case was Sri Kodanda

Ramachandra Moorti cannot be held to be a gift to a living person. It had been argued in

the said matter that an idol in law is recognised to be a juristic person capable of holding

property and it must be held that a gift to an idol is a gift to a living person. But it was

held therein that the Almighty by no stretch of imagination, legal or otherwise, can be

said that the Almighty is a living person within the meaning of the Transfer of Property

Act. The learned Judges of the Full Bench saw no reason to differ from the Madras case

cited in that matter where the law had been settled for several years as it was observed

that the principle of `stare decisis' should be applied unless there are strong reasons to the

contrary as otherwise it would unsettle many titles. Concurring with this view, Chief

Justice Reilly held that if the gift is not intended to a living person within the meaning of

S. 5 of the Transfer of Property Act, the document would not require registration. This

judgment surely has a persuasive value to the issue with which we are confronted in the

instant matter and tilts the scale of justice in favour of the appellant-trust as the plot was

essentially dedicated to Sai Baba for a charitable purpose, although the same was in the

form of an unregistered deed of gift.

15. But even if we were to accept the contentious issue or leave it open and express no final

opinion that the deed of gift executed in favour of the appellant-trust having not been registered,

did not confer any title on the appellant-trust, it is not possible to brush aside the contention that

the respondent Nos.1 to 7-purchaser of the plot in question were legally bound by Section 51 of

the Bombay Public Trusts Act 1950 to obtain consent of Charity Commissioner before institution

of the suit against the appellant which was admittedly in possession of the property after the gift

deed was executed in its favour by the respondent No.8. It would be relevant to quote Section 51

at this stage which lays down as follows: 51 (1) :

"If the persons having an interest in any public trust intend to file a suit of the nature

specified in section 50, they shall apply to the Charity Commissioner in writing for his

consent. If the Charity Commissioner after hearing the parties and making such enquiries

(if any) as he thinks fit is specified that there is a prima facie case, he may within a period

of six months from the date on which the application is made, grant or refuse his consent

to the institution of such suit. The order of the Charity Commissioner refusing his consent

shall be in writing and shall state the reasons for the refusal."

16. Section 51 further envisages right of appeal by the affected party if the Charity Commissioner

refuses his consent to the institution of the suit. Prior to this Section 50 (ii) already envisages that

where a direction or decree is required to recover the possession of or to follow a property

belonging or alleged to be belonging to a public trust, a suit by or against or relating to public

trust or trustees or other although may be filed, consent under Section 51 of the Charity

Commissioner is clearly required under Section 51 of the Act of 1950 which is quoted

hereinbefore.

17. It is difficult to overlook that the decree holder/respondent herein although had gone to the

extent of publishing a notice in a local daily "Matrbhumi" inviting objections indicating that he

intended to purchase a suit land, he conveniently ignored the provisions of Section 51 of the

Bombay Public Trusts Act, 1950 and refused to apply to the Charity Commissioner before

instituting a suit against the appellant-trust especially when the possession of the plot was

delivered to the appellant-trust way back in the year 1974 but after more than eight years, the

vendor/respondent No.8 executed a sale deed in favour of the predecessor of respondent Nos.1 to

7. The relevance of Section 51 of the Bombay Trusts Act, 1950 although is clearly apparent and

the appellant had also raised it before the High Court, the learned Single Judge of the High Court

has not even addressed this important issue having a legal bearing on the right of the appellant to

retain the plot, which although had been in the form of a deed of gift, in fact it was practically in

the nature of dedication to the appellant-trust for charitable purpose which was to construct a

`Bhakt Niwas' for the devotees of Saibaba.

18. Hence, even if it were to be held that the deed of gift in favour of the appellant-trust did not

confer any title to the appellant-trust as the same was not registered and were also to be held that

the same cannot be treated to be a dedication to any idol, as this point was neither pressed hard

nor was argued threadbare and the Courts below have also not gone into this question, we do not

wish to enter into this question further. However, the fact remains that in view of the possession

of the property in question of the appellant-trust, it was obligatory on the part of the purchasers of

the plot in question/respondent Nos.1 to 7 to seek permission from the Charity Commissioner

under Section 51 of the Bombay Trusts Act, 1950 to recover the property by filing a suit or

initiating a proceeding. In fact, in the matter of K. Shamrao and others vs. Assistant Charity

Commissioner reported in (2003) 3 SCC 563, a two Judge Bench of this Court had been

pleased to hold that the Assistant Charity Commissioner under the scheme of the Act of 1950 i.e.

Bombay Public Trusts Act, 1950 possesses all the attributes of a Court and has almost all the

powers which an ordinary civil court has including the power of summoning witnesses,

compelling production of documents, examining witnesses on oath and coming to a definite

conclusion on the evidence induced and arguments submitted. Section 79 (1) of the same Act also

lays down that any question, whether or not a trust exists and such trust is a public trust or

particular property is the property of such trust, is required to be decided under its statutory force

by the Deputy or Assistant Charity Commissioner as provided under the Act and Section 80 bars

jurisdiction of the civil court to decide or deal with any question which is by or under this Act to

be decided or dealt with by any officer or authority under this Act.

19. Thus, when the appellant-trust was in occupation and possession of the property in question

then the respondent- plaintiff clearly could not have approached the civil court ignoring the

specific provision under the Bombay Public Trusts Act, 1950 which has laid down provisions to

deal with disputes relating to the property of the trusts. It also cannot be overlooked that in the

instant case, it is the original owner of the property i.e. respondent No.8 who had executed a deed

of gift in favour of the appellant-trust and subsequently after ten years, executed a sale deed in

favour of the predecessor of respondent Nos.1 to 7, who approached the Court for recovery of his

property in which case it could perhaps have been available for the owner of the property to

approach the civil court. But in the case at hand, it is the purchaser of the property predecessor of

Respondent Nos. 1- 7 who filed the suit for possession which clearly can be construed as the suit

for recovery of possession from the appellant-trust which was in possession of the property. In

that view of the matter, it was the statutory requirement of the Bombay Public Trusts Act, 1950 to

approach the Charity Commissioner before a suit could be instituted.

20. In view of the aforesaid discussion and in the light of the reasons assigned hereinbefore, we

set aside the judgment and order of the High Court as also the First Appellate Court and restore

the judgment and order of the Trial Court which had been pleased to dismiss the suit filed by the

plaintiff-respondents No.1 to 7. The Trial Court, however, had decreed the suit for return of the

money of Rs.17,500/- to the predecessor of respondents No.1 to 7 and also interest was ordered to

be paid on this amount by the vendor-respondent No.8. Since the respondent No.8 had already

been divested of his title to execute a sale deed in favour of respondent Nos.1 to 7 as he had

already executed a deed of gift in favour of the appellant-trust for charitable purpose, we are of

the view that in the interest of equity, he should not be saddled with the financial liability to

return the amount of Rs.17,500/- with interest to the respondent Nos.1-7. This amount, in our

view, in the interest of equity and fair play should be paid by the appellant-trust to the respondent

Nos.1-7 on behalf of Respondent No.8, as this part of the decree which had been passed by the

Trial Court in favour of respondent Nos. 1-7 had not been challenged by way of an appeal by the

respondent No.8. But as we have held that the appellant-trust is the rightful owner of the disputed

plot and the Respondent No.8 as a consequence has been held to have been divested of the

property, the amount paid by the predecessor of Respondent Nos.1-7, should be refunded to

Respondent Nos.1-7 without interest and thus the decree of the Trial Court shall be treated as

modified to this extent. This appeal accordingly is allowed, without any order as to costs.

------

Gujarat High CourtCommissioner Of Income-Tax vs Hazarat Pir Shah-E-Alam Roza ... on 11 April, 2002

Equivalent citations: 2002 256 ITR 193 Guj

Author: R Abichandani

Bench: R Abichandani, K Singh

JUDGMENT

R.K. Abichandani, J.

1. This reference arises from the order of the Income-tax Appellate

Tribunal, Ahmedabad "A" Bench, passed in a group of 20 appeals related to

the assessment years 1964-65 to 1969-70, 1972-73 and 1973-74, in which

the controversy before us revolved around the issue as to whether the

income from the lands in question was the income of the Hazarat Pir Shah-

E-Alam Roza Estate Trust (hereinafter referred to as "the Roza Trust")

assessable in the hands of the said trust and exempt under Section 11 of the

Income-tax Act, 1961 (hereinafter referred to as "the said Act"), or whether

it was assessable in the hands of the Sajjadanashin of the Trust Saiyed

Musamiya as income from his private property.

2. The Tribunal has concluded that the lands in question were wakf

properties belonging to the Roza Trust, and that the exemption under

Section 11 of the said Act was available to the assessee-Roza Trust,

provided the conditions mentioned therein are fulfilled. It was held that the

actual expenditure on the Sajjadanashin and his family not exceeding Rs.

30,000 would not be included in the income of the Roza Trust, but such

amount spent by the assessee Sajja-danashin on his maintenance as Madad-

E-Maash was taxable in his hands as income. The Tribunal restored the

matter to the Income-tax Officer to assess the income of Rasulabad, Vasna,

Isanpur and Sarsa lands as the income of the Roza Trust and grant the

benefit under Section 11 subject to fulfilment of the conditions mentioned

therein, bearing in mind that the income actually spent by Sajjadanashin on

his maintenance not exceeding Rs. 30,000 was not to be included in the

income of the Roza Trust.

3. The Tribunal has in the above background referred the following

questions in Income-tax Reference No. 135 of 1988 for the opinion of this

court under Section 256(1) of the said Act :

"Questions at the instance of the Revenue (In Revenue Appeals Nos. 402 to

409/Ahd of 1985) :

(1) Whether, on the facts and in the circumstances of the case, the Income-

tax Appellate Tribunal has been right in law in holding that the asses-see,

Roza, is a wakf and the complex of buildings and lands at Rasulabad were

wakf properties belonging to it by dedication and user ?

(2) Whether, on the facts and in the circumstances of the case, the

Appellate Tribunal has been right in law in holding that the lands at Vasana,

Isanpur and Sarsa were wakf properties belonging to the Roza by virtue of

Sanad of Aurangzeb ?

(3) Whether, the Appellate Tribunal has been right in law and on facts in

holding that the income of Roza was eligible to exemption under Section 11

of the Income-tax Act, 1961, if the assessee, Roza, satisfied the conditions

mentioned in the said Section ?

(4) Whether, the Appellate Tribunal has been right in law and on facts in

holding that the actual expenditure on the maintenance of the

Sajjadanashin and his family not exceeding Rs. 30,000 a year would not be

included in the income of Roza ?

Questions at the instance of the Revenue in Revenue Appeals Nos. 410 to

413/Ahd of 1985 :

(1) Whether, the Appellate Tribunal has not erred in law and on facts in

holding that the properties at Rasulabad, Vasna, Isanpur and Sarsa

belonged to Shah-E-Alam Roza at Ahmedabad and not to the assessee

individual and hence the income thereof was not liable to be assessed in the

hands of the assessee ?

(2) Whether, the Appellate Tribunal has not erred in law and on facts in

holding that the Bombay High Court decision wherein the assessee had

taken the stand that the properties belonged to him individually and not to

the trust, did not operate as res judicata and the assessee was not

prevented from taking the stand that the properties belonged to Roza

Trust ?

(3) Whether, the Appellate Tribunal has not erred in law and on facts in

holding that the income spent by the assessee Razvi on his maintenance and

Madad-E-Maash was only taxable in his hands ?

Questions at the instance of the Revenue in Revenue Appeals Nos. 384 to

387/Ahd of 1985 :

(1) Whether, on the facts and in the circumstances of the case, the Tribunal

was justified in law in holding that all the properties, lands and buildings at

Rasulabad are wakf properties by user ?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal

was justified in law in holding that the income spent by the assessee Razvi

on his maintenance and Madad-E-Maash was taxable income in the hands of

the assessee ?

(3) Whether, the Tribunal was justified in law in holding that the

maintenance and Madad-E-Maash expenditure incurred by the trust on the

assessee and his family members was not expenditure for Khankah but was

taxable income of the Sajjadanashin ?

Questions, at the instance of the assessee-Roza Trust in Revenue Appeals

Nos. 388 to 398/Ahd of 1985 :

(1) Whether, on the facts and in the circumstances of the case, the Tribunal

was justified in law in holding that the maintenance and Madad-E-Maash

expenditure incurred by the trust on Sajjadanashin and his family members

was not expenditure for Khankah ?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal

was justified in law in holding that actual expenditure incurred (not

exceeding Rs. 30,000 a year) in maintenance of Sajjadanashin and his family

was not the income of the trust ?

(3) Whether, the Tribunal was justified in law in holding that the British

Sanad granted to the assessee were not the documents of title ?"

4. Much historical interest has been evinced by the authorities and a

detailed account is given in their orders with a historian's thrill to show as

to how the Dargah of Hazarat Pir Shah-E-Alam came into existence when

the Roza was constructed during 1531-41 AD by a noble man of the court of

Sultan Bahadur Shah over the tomb of the great Muslim sage who died in

1475 AD and how Diwankhana came to be built in 1570-73 by Sultan

Muzaffer Shah III. These facts found mention in the Bombay Gazette,

Volume IV, at page 286-87. The lands of six villages, including the four

which were the subject-matter of the assessment proceedings, are said to

have been granted by the Mogal Emperor Aurangzeb for the upkeep of the

Roza in the year 1670 AD under a Sanad and grants were confirmed by the

Sanads issued during the British regime.

5. It appears from the record that a suo motu inquiry was started under

Section 19 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as

"the Trusts Act of 1950"), by order dated March 7, 1956 (Inquiry No. 176 of

1956), passed by the Deputy Charity Commissioner who had chosen the

assessors to aid and assist him. As a result of that inquiry, the Deputy

Charity Commissioner, Ahmedabad Region, made an order on August 10,

1962, directing that the said trust be registered as a public trust in the

Public Trust Registration Office, Section "B" for Ahmedabad. Appeals were

filed against that order before the Charity Commissioner, Gujarat State,

Ahmedabad (Appeals Nos. 60 to 71 of 1962) and the Charity Commissioner

by a very elaborate reasoned order dated January 20, 1966, dismissed both

the appeals, confirming the order of the Deputy Charity Commissioner that

the said Roza Trust was a public trust and that the lands of villages Vasna,

Isanpur and Sarsa were the properties of the said trust and setting aside

the finding of the Deputy Charity Commissioner about the Rasulabad lands

by holding that those lands were also the property of the trust. It is stated

that an application under Section 72 of the said Trusts Act of 1950 was filed

and has been pending, but there has not been any stay of the order of the

Charity Commissioner, by which it was held that the Roza was a registered

public trust and these lands of four villages were registered as the

properties of the said wakf.

6. The Income-tax Officer assessed the income of villages Vasna, Isanpur

and Sarsa as well as the income from Rasulabad land as the income in the

hands of the assessee Sajjadanashin Saiyed Musamiya Haiderbux Razvi.

Protective assessment was, however, made in respect of that income in the

name of the assessee-Roza Trust. In the appeals, the Appellate Assistant

Commissioner upheld the finding of the Income-tax Officer that the income

was assessable in the hands of Saiyed Musamiya Haiderbux Razvi but

cancelled the protective assessment which was made in the name of the

Roza Trust.

7. Against the order of the Appellate Assistant Commissioner, appeals were

preferred by the Roza Trust before the Tribunal challenging the finding that

the income in question was of Saiyed Musamiya Haiderbux Razvi and not of

the Roza Trust, and that it was not exempted under Section 11 of the said

Act. According to the assessee-Roza Trust, the Appellate Assistant

Commissioner had committed an error in setting aside the protective

assessment on the ground that the income was not the income of the Roza

Trust instead on the ground that it was exempted under Section 11 of the

said Act.

8. In the appeals filed by Saiyed Musamiya Haiderbux Razvi, it was urged

that the Appellate Assistant Commissioner had erred in holding that the

income of the trust was assessable in his hands and not in the name of Roza

Trust and that it was not exempted under Section 11 of the said Act.

9. The Department was aggrieved by the cancellation of protective

assessment and in its appeals, challenged the order of the Appellate

Assistant Commissioner by urging that the protective assessment in the

name of Roza Trust should not be cancelled.

10. The Tribunal took note of the fact that the Deputy Charity Commissioner

had held that all the lands in question except the Rasulabad lands, were

belonging to the public religious and charitable trust, i.e., the Roza Trust. It

noted that, the Charity Commissioner had confirmed that order and had

also held that the Rasulabad lands were belonging to the said trust- It took

note of the book entitled A History of Gujarat by M. S. Commissariat

(Professor of History and Former Principal, Gujarat College, Ahmedabad) to

trace out the events that led to the establishment of the Roza Trust as a

public charitable trust. It noted that Shah-E-Alam estate was under the

management of the Collector of Ahmedabad under the Court of Wards Act,

from 1872 to 1877, 1896 to 1914 and 1948 to 1958. Considering the effect

of the judgment dated September 24, 1957, of the Bombay High Court, in

First Appeal No. 188 of 1952 which was filed against the decision of the

third Joint Civil Judge (S. D.) Ahmedabad, in Civil Suit No. 72 of 1948, partly

decreeing the suit filed by the senior widow of Saiyed Musamiya Imam

Hyderbux against the other widow, Mamubibi, and her son, Saiyed

Musamiya Razvi and others, for a decree for administration of the estate of

Saiyed Musamiya Hyderbux and for appointment of a receiver, etc., the

Tribunal came to a finding that the said judgment did not operate a res

judicata, because, the Roza Trust was not represented in those proceedings

and the question whether the properties were public trust properties was

not before the court. It was, therefore, held that Saiyed Musamiya Razvi

was not prevented from taking up the stand that the properties in question

belong to the Roza Trust. The Tribunal took into consideration the

inscription on the marble tablet placed at the entrance of the Roza Trust,

the account of which was given in the book of Professor Commissariat and

the Sanad granted in 1670 by Aurangzeb assigning six villages for the

maintenance of the tomb and its custodian and found that there was

dedication of these lands of four villages for charitable and religious

purpose. The Tribunal considered the said Sanad, a translation of which was

submitted before it, and held that all the requirements of the public

religious endowment were satisfied. It held that, as per the Sanad, one

Saiyed Mohammed was appointed by the "Farman" of Aurangzeb as the

Sajjadanashin and Mutawalli of the Roza and, he was granted six villages

comprising 80 bighas and 17 biswas of land exclusively for expenditure on

the sacred mausoleum under the heads of expenditure : the tutors, people

of the mosque, the seekers of knowledge, the carpet spreaders, the light

kindlers, the travellers, and all other aspects of beneficience and charity

and for Madad-E-Maash of the Sajjadanashin, his sons and descendants. The

Tribunal held that in the translation of the Sanad which was supplied to it,

there was no omission and the names of villages were clearly mentioned. It

was held that the primary and dominant purpose of the grant was public

religious and charitable and the maintenance of the Sajjadanashin (Madad-

E-Maash) was only incidental to the primary object of the wakf. It was also

held that the evidence regarding establishment of the wakf was so

predominant that inconsistent conduct of Saiyed Musamiya Razvi or his

ancestors cannot displace the existence of the wakf. Considering the status

of Sajjadanashin as the holder of a spiritual office in the Roza Trust, the

Tribunal held that a reasonable expenditure on the maintenance of the

Sajjadanashin and his family must be held to be expenditure incurred for a

religious purpose, and therefore, the benefit of Section ll(1)(a) would be

available to the assessee-Roza Trust for such expenditure. It was held that

the actual expenditure not exceeding Rs. 30,000 a year over the

maintenance of the Sajjadanashin and his family was allowable and should

not be included in the income of the Roza Trust. The Tribunal, however,

held that the Sajjadanashin receives such income by reason of his office and

any monetary receipt in the hands of a person by reason of his office was

the income in his hands and was taxable. Summarising its conclusions, the

Tribunal held in paragraph 45 of its order, that the decision of the Bombay

High Court in First Appeal No. 188 of 1952 did not operate as res judicata

and the Sajjadanashin Saiyed Musamiya Razvi was not prevented from

taking up a stand that the properties belong to the Roza ; that the assessee-

Roza was a wakf and the complex of buildings and the lands at Rasulabad

were wakf properties belonging to it by dedication and user ; that the lands

at Vasna, Isanpur and Sarsa are wakf properties belonging to the Roza

Trust by reason of the Sanad of Aurangzeb ; that the income spent by the

assessee-Musamiya Razvi on his maintenance as "Madad-E-Maash" was

taxable in his hands ; and the actual expenditure on the maintenance of the

Sajjadanashin and his family not exceeding Rs. 30,000 a year, would not be

included in the income of the Roza Trust. With these findings, the Tribunal

restored the matter to the Income-tax Officer to assess the income of

Rasulabad, Vasna, Isanpur and Sarsa lands as income of the Roza Trust and

grant the benefit under Section 11 of the said Act, subject to fulfilment of

the conditions mentioned therein, bearing in mind that the income actually

spent by the Sajjadanashin on his maintenance and that of his family not

exceeding Rs. 30,000 per year was not to be included in the income of the

Roza Trust.

11. Learned standing counsel appearing for the Revenue argued before us

that the judgment of the Bombay High Court in First Appeal No. 188 of

1952 was a judgment rendered within the jurisdiction of the court and was

binding on all the authorities under the Bombay Public Trusts Act, because,

the suit was of the year 1948, while the Bombay Public Trusts Act came into

force from 1950. It was argued that the income-tax authorities were not

bound by any decision of the Charity Commissioner under the Bombay

Public Trusts Act as to the existence of the public trust or about the fact

whether any property belonged to the public trust. It was submitted that, in

the process of assessment, it was incidental for the Assessing Officer to

decide as to whom the property belonged, and therefore, notwithstanding

the powers of the Charity Commissioner under the Bombay Public Trusts

Act, the Assessing Officer can take a different view under the provisions of

the Income-tax Act as regards the ownership of the properties which may

have been registered as the properties of the trust. Learned counsel

strongly contended that the authorities under the Income-tax Act were

functioning under the Central law and, therefore, they would not be bound

by any decision taken by a functionary under the State law. Therefore, the

tax authorities have independent powers under the said Act to decide the

ownership of the immovable property for determining the question

regarding the income received by the public trust and whether it was

exempted under Section 11 in the light of the said provision read with

Section 143(2) and (3) of the said Act. It was further argued that the grant

made by Aurangzeb was in favour of the Sajjadanashin and his family, and

his descendants and, therefore, it was a personal inam and cannot be

treated as creation of a wakf. He therefore submitted that there was no

dedication of the said lands to any religious or charitable purpose. It was

also argued that, from the conduct of the Sajjadanashin and his family

members, it was clear that they had treated the properties as if they were

their private properties, and that is why, the administration suit was filed by

one of the widows of the then Sajjadanashin which culminated in the

decision of the Bombay High Court in First Appeal No. 188 of 1952,

confirming the decree passed in the administration suit wherein the other

widow and the present Sajjadanashin were parties. It was argued that the

Tribunal had committed an error in fixing the amount of Rs. 30,000 as an

expenditure wholly incurred for religious purpose entitled to exemption

under Section 11 of the Act. According to him, such expenditure on

Sajjadanashin and his family (Madad-E-Maash) was a private expenditure

and not incurred for any religious purpose. He then argued that the

authorities under the Bombay Public Trusts Act had committed an error in

holding that the judgment of the Bombay High Court did not preclude them

from taking a decision under the said Act, and that there was no bar of res

judicata. He submitted that the authorities under the Bombay Public Trusts

Act were clearly bound by the decision of the Bombay High Court and could

not have held that there was a public trust or that the properties in question

were dedicated for religious and charitable purposes. It was submitted that,

in any event, an application under Section 72 of the Bombay Public Trusts

Act was pending before the Ahmedabad City Civii Court and, therefore, the

decision under the Bombay Public Trusts Act registering the Roza Trust and

showing the properties in question as the trust properties was not final.

Even if it is to be treated as final for the purposes of the Bombay Public

Trusts Act since that is a State law, the income-tax authorities acting under

the Central law, i.e., the Income-tax Act, were in no way bound to follow the

decisions taken under the Trusts Act. Learned standing counsel finally

argued that the record shows that, in the past, the said Roza was registered

as a wakf under the Musalman Wakf Act, 1923, but later on, on September

3, 1934, it was deleted by the Collector from the list of wakfs. Therefore, it

could not have been again decided under the Bombay Public Trusts Act that

the said Roza was a public trust, and that its properties were public trust

properties. Therefore, the properties in question are required to be held of

the individual asses-see, i.e., the Sajjadanashin and the income was

assessable in his hands and not in the hands of the Roza Trust. Learned

standing counsel supported the reasoning of the Income-tax Officer, and

contended that the findings of the Tribunal were not warranted by the

material on record.

12. Learned standing counsel for the Revenue, in support of his arguments,

cited the decision of this court in CIT v. Thobhandas Jivanlal Gajjar [1977]

109 ITR 296 to point out that a Division Bench of this court has held that, it

cannot be said as a broad proposition of law that the decisions of civil

courts would operate as res judicata in the references so as to bind the

Government, which was admittedly not a party to the proceedings before

the civil courts, or would preclude the Income-tax Officer, in the course of

assessment, to investigate in whose hands a particular income should be

assessed. Reliance was also placed on the decision in Keshavlal Punjaram v.

CIT and WT [1983] 141 ITR 466 (Guj), in which the ratio of the aforesaid

decision in Thobhandas's case [1977] 109 ITR 296 (Guj) was followed, and it

was held that the Tribunal had rightly taken the view that the decision

rendered by the civil court in the circumstances pointed out cannot

preclude the statutory exercise by the Income-tax Officer to form his own

opinion.

13. Learned senior counsel, who appeared for the assessee, argued that, in

view of the finding reached by the Charity Commissioner on January 20,

1966, in Appeals Nos. 60 and 71 of 1962 upholding the order of the Deputy

Charity Commissioner dated August 10, 1962, registering the Roza Trust as

a public trust and finding that the properties in question were the

properties of the Roza Trust, it was not open to the tax authorities to take a

different view of the matter. It was argued in the alternative that the finding

reached by the Tribunal as to the ownership of the property was a finding of

fact, which could not be challenged as perverse, because, it was based on

the evidence on record. It was, therefore, not possible to take any view as to

the ownership of the property other than the one taken by the Tribunal. It

was submitted that, in any event, it was quite clear from the evidence on

record that the findings reached by the Tribunal are correct. As regards the

amount of expenditure up to Rs. 30,000 which was required to be taxed in

the hands of Saiyed Musamiya Razvi, learned senior counsel submitted that

the questions referred at the instance of Saiyed Musamiya Razvi in respect

thereof were not pressed. He however, submitted that this amount should

be a permissible deduction, because, it was expended for the maintenance

of the Sajjadanashin. It was then argued that the controversy in the

administration suit which culminated in the decision of the Bombay High

Court in First Appeal No. 188 of 1952 was entirely different, and the Roza

Trust was not a party therein, nor was the question as to whether the

properties in question were the properties belonging to the public trust

directly and substantially in issue. It was submitted that the suit was

contested on an assumption that the properties belonged to the

Sajjadanashin as his private properties. It was contended that, in any event,

it was a settled legal position that there was no res judicata against a

decision being taken under the Bombay Public Trusts Act on the basis of an

earlier order of the civil court, which could not have decided the questions

entrusted to the Charity Commissioner under that Act. It was also

submitted that the Rasulabad land was not the property of the trust and

ought to have been held to be the property of the Sajjadanashin.

14. In support of his contentions, learned senior counsel for the assessee

cited the following decisions :

(a) The decision of the Bombay High Court in Zooleka Bibi v. Zyed Synul

Abedin, reported in 6 BLR at page 1058 was cited for the proposition that

the office of the Sajjad-a-Nashin is a religious office, and he may also be a

muta-walli of wakf property dedicated to charitable purposes. On the facts

of the case, the court had come to the conclusion that, so far as the tomb of

Syed Budruddin was concerned, he was not a religious person to whom any

such sanctity was attached that his tomb could itself be considered a

religious object. Consequently no property could be dedicated validly to

support his tomb. It was held that there was no documentary or oral

evidence in support of the alleged dedication.

(b) The decision of the Bombay High Court in Narbheramji Gyaniramji

Ramsnehi v. Vivekramji Bhagatramji Ramsnehi, reported in 41 BLR at page

939, was referred to for the observation that, a Sanad granted under

Section 133 of the Bombay Land Revenue Code, 1879 was prima facie

evidence of title. It was also held that such Sanad was not conclusive

evidence.

(c) The decision of Oudh High Court in Shah Mohammed Naim Ata v.

Mohammad Shamshuddin, AIR 1927 Oudh 113 was cited for the proposition

that the property given to the Sajjadanashin of a "khanqah" for the upkeep

of the buildings and the school connected therewith was the wakf property

and therefore, cannot be attached in execution of a decree against the

Sajjadana-shin, nor can the rents and profits of the said property be held to

be liable to attachment. Relying on the decision of the Privy Council in

Jewan Doss Sahu v. Shah Kubeerooddeen [1837-41] 2 MIA 390 (PC), it was

held that, in order to constitute a wakf, it was not necessary to use the word

"wakf" and so long as it appears that the intention of the donor was to set

apart specific property or the proceeds thereof for the maintenance or

support in perpetuity of a specific object or a series of objects recognised as

pious by the Musalman law, it amounts to a valid and binding dedication.

(d) The decision of a Division Bench of the Patna High Court in Muhammad

Kazim (Syed Shah) v. Abi Saghir (Syed), AIR 1932 Patna 33, was cited to

point out that, the essentials of a valid wakf are--an appropriator must

destine the ultimate application of the income to the objects not liable to

become extinct; the appropriation must be at once complete ; there must be

no stipulation in the wakf for sale of the property and expenditure of the

price on the appropriator's necessaries ; and perpetuity must be a

necessary condition. It was also held that the provision for a Sajjadanashin

was not a provision for the man, but for the institution. A "khankah" cannot

exist and continue without a Sajjadanashin. A Sajjadanashin is an integral

part of the institution and the central figure so to speak therein. Therefore,

provision for his maintenance and .that of his descendants is the provision

for him as a head of the institution. It is therefore a trust and not a personal

grant.

(e) The decision of the Bombay High Court in Mahomedhussein Daud Bhai

v. Collector of Broach and Panchmahals, AIR 1945 Bom 157, was cited for

the proposition that an inquiry under the Musalman Wakf Act, 1923, as

amended by Bombay Act No. 18 of 1935 was confined to cases where the

existence of the wakf was admitted. It was held that where the existence of

the wakf was disputed, the District judge had no jurisdiction to make an

inquiry into its existence. This decision was relied upon to meet the

contention raised on behalf of the Revenue that the Roza Trust was earlier

registered under the Musalman Wakf Act, but it was removed from the list

by the Collector on September 3, 1934.

(f) The decision of the Supreme Court in Dhaneshivarbuwa Guru Purshot-

tambuwa v. Charity Commissioner, State of Bombay, AIR 1976 SC 871, was

relied upon for the proposition that it would not be correct to say that the

expression in this Sanad (an ancient Royal grant) cannot be in any way

determinative of the nature of the temple or religious endowment as a

public trust. In the absence of anything to the contrary of a convincing

nature, a grant by the Government in favour of the temple (a Devasthan)

describing the property to be in the charge of a manager leads to an

unerring inference that the property is a public religious endowment. It was

held that when the origin of an endowment is obscure and no direct oral

evidence is available, the court will have to resolve the controversy about

the character of the trust on documentary evidence, if any, the object and

purpose for which the trust was created, the consistent manner in which the

property has been dealt with or managed by those in charge, the manner in

which the property has long been used by the public, the contribution of the

public, and other aspects mentioned, which are all important elements in

determination of the question whether a pro-perry is a private or a public

religious endowment.

(g) The Full Bench judgment of this court in Shree Bhagvatacharya Nara-

yancharya Public Trust v. State of Gujarat, 62 (2) GLR 1356, was cited to

point out that, in a group of matters in which even the Roza Trust was one

of the petitioners, the Full Bench held that, since the Gujarat Devasthan

Inam Abolition Act, 1969, and the Gujarat Devasthan Inam Abolition

(Amendment) Act, 1977, were both placed in the Ninth Schedule, they were

immune from any challenge on the ground of violation of the fundamental

rights. It was submitted that, in respect of these lands which were treated

as Devasthan Inam lands, the Devasthan Inam was abolished under this Act

and therefore, even the subsequent events show that these properties were

Devasthan properties and were required to be assessed in the hands of the

Roza Trust.

(h) The decision of the Supreme Court in Sri Agasthyar Trust v. CIT [1999]

236 ITR 23, was cited to point out that, in a case where there was nothing

to indicate that it was brought to the notice of the Supreme Court in the

earlier case before it (East India Industries' case [1967J 65 ITR 611), that

the trust had been created by virtue of the document dated November 28,

1941, and there was no specific reference to that document in the judgment

of the court and the judgment did not indicate that the question relating to

the validity of the deed dated July 1, 1944, was ever in issue before the

Supreme Court, the earlier decision in East India Industries' case [1967] 65

ITR 611 (SC), did not and could not preclude the appellants from

contending that the deed dated July 1, 1944, was illegal and of no

consequence, and what had to be seen was whether the assessee was a

public charitable trust on the basis of the partnership deed dated November

28, 1941, and that the power to revoke the trust was taken away by a

subsequent document dated August 26, 1943. It was held that the Tribunal

was therefore right in considering the objects and coming to the conclusion

that the appellant was a public charitable trust and was entitled to

exemption under Section 4(3)(i) of the Indian Income-tax Act, 1922, and

Section 11 of the Income-tax Act, 1961.

(i) A Division Bench judgment of this court in Letters Patent Appeal in

Sayed Mohomed Baquir-El-Edroos Valde Sayed Jaffer-EI-Edroos

Sajjadnashin of Edroos Gadi v. Alimiya Mahmadmiya 13 GLR 285, was cited

for the proposition that the statutory authority is bound to hold an inquiry

under Section 19(1) of the Bombay Public Trusts Act as laid down by the

statute and by no stretch of imagination, such statutory officer could ever

be precluded from performing his statutory duties by invoking a rule of

estoppel, as the result would be manifestly unjust, if the statutory inquiry as

per the norms laid down in the statute is to be stultified. It was observed

that the norms to be applied for determining the question as to what is a

public trust are already settled by the Act and a statutory authority could

never be precluded from taking fresh evidence on the ground that there is

an estoppel as regards any particular issue because of some earlier inquiry

which could never be as per the norms laid down under the Bombay Public

Trusts Act. It was held that the earlier litigation under Section 92 of the

Civil Procedure Code, whether the wakf was a public trust or not within the

meaning of the Act was never directly and substantially in issue and that the

earlier finding could never preclude the present inquiry by reason of the

doctrine of res judicata.

(j) The decision of the Supreme Court in CIT v. Kamla Town Trust [1996]

217 1TR 699 was cited for the proposition that the civil court had

jurisdiction to rectify a trust deed and that the trust deed as amended was

binding on the income-tax authorities. The respondent trust was held to be

entitled to exemption from income-tax under Section 11 of the Act subject

to compliance with the conditions laid down therein.

15. It will be noticed that the Income-tax Officer had rejected the contention

of the assessee-Roza Trust on the ground that the judgment of the Bombay

High Court in First Appeal No. 188 of 1952 rendered on September 24,

1957, made it conclusive that the properties of villages Isanpur, Vasna and

Sansa were not to be treated as the properties of the Roza Trust, but they

were a "jat-inam" in favour of the ancestors of Saiyed Hyderbux. It was

further held that since Saiyed Musamiya was entitled for Madad-E-Maash

and his ancestors had entered into many acts of transferring properties and

creating mortgages and treating the properties as personal properties in

court cases the lands in question were not the properties of the wakf.

Observing that the Sajjadanashin Musamiya had full discretion to apply the

income of the trust to any charitable or non-charitable objects, the Income-

tax Officer relying upon the decision of the Supreme Court in East India

Industries (Madras) Pvt. ltd. v. CIT [1967] 65 ITR 611, held that the whole

trust failed and no part of its income was exempted under Section 11 of the

said Act. According to learned counsel for the Revenue, there was no valid

reason for the appellate authority to upset these findings which were

approved by the first appellate authority.

16. It will be noticed that the Tribunal, on its own appreciation of the

evidence on record, came to the conclusion that the properties in question

belong to the Roza Trust and, therefore, its income was assessable in the

hands of the Roza Trust. The Tribunal did not blindly rely upon the findings

given by the Charity Commissioner and made its own assessment of the

material on record for reaching the said conclusion. In the process, it held

that the decision of the Bombay High Court in First Appeal No. 188 of 1952

did not preclude inquiry into the question as to whether these properties

were belonging to the said public trust or not. It was held that the decision

of the Bombay High Court did not operate as res judicata.

17. We have noted above the fact that, in Inquiry No. 176 of 1956 initiated

under Section 19 of the said Trusts Act of 1950, by order dated March 7,

1956, the Deputy Charity Commissioner heid that the Roza Trust was a

public trust and that the property shown in the application was the property

of the trust. The decision of the Deputy Charity Commissioner is at

annexure H in paper-book No. 2 of these proceedings. Though the inquiry

was initiated suo motu, as noted in the order of the Deputy Charity

Commissioner, Syed Musamiya filled up the form for the registration of this

public trust as the sole trustee thereof, which was exhibit 180 in those

proceedings and from that stage, the inquiry which was started as a suo

motu inquiry, was continued on the basis of that application exhibit 180. As

per the said application exhibit 180, even according to the Sajjadanashin

Musamiya, the villages of Vasna, Muktampur, Isanpur, Sarsa and Vasna

Buzarg (which was under the management of the Collector), Kheda, were all

Devasthan Inam along with Survey No. 35 of village Dani Limda on which

the buildings of the Roza Trust were situated. The Deputy Charity

Commissioner, referring to the decision of the Bombay High Court in First

Appeal No. 188 of 1952, noted that it was arising out of the administration

suit filed by the senior widow of Syed Hyderbux, the stepmother of the

present Sajjadanashin for the administration of the estate of Syed

Hyderbux, who died in 1948. That suit was filed on the basis that the entire

estate of the deceased including these villages were his private properties.

The High Court confirmed the decision of the trial court that these villages

were not impartible and were heritable. A contention which is sought to be

raised before us on the basis of the decision of the Bombay High Court was

also raised to the effect that the said decision of the Bombay High Court

conclusively showed that the villages were private properties of the sharers

and not the properties of the public trust. The Deputy Charity Commissioner

noted that the decision was given on September 24, 1957, and at that time,

the inquiry under Section 19 of the Trusts Act of 1950 was already pending

and the questions whether the trust existed and was a public trust or not

and whether a particular property was the property of the trust were

required to be decided by the Deputy Charity Commissioner or by the

Charity Commissioner in appeal as provided under the Act. No notice was

issued to the Charity Commissioner in that appeal. The Deputy Charity

Commissioner noted the following observations in the judgment of the High

Court, "The properties being private properties of Saiyed Hyderbux, we are

unable to appreciate how these properties can be regarded as impartible".

The Deputy Charity Commissioner, therefore, held that there cannot be any

bar of res judicata by virtue of the decision in the said appeal and the other

cognate appeal and the question whether the lands of these four villages

were the property of the public trust was being determined for the first time

in the inquiry under the Special Act, and that it was not directly in issue

before the High Court.

18. The Charity Commissioner also considered the proceedings which led to

First Appeal No. 188 of 1952 before the High Court in paragraph 31 of his

order and observed that the question as to whether the Rasulabad lands

belonged to Shah-E-Alam Roza or were private properties of Syed Imam

Haiderbux was never put in issue in that suit and hence, there was no

decision on that point. It was noted that the parties who were claiming

these lands to be partible as if they were the properties of the deceased,

were not interested in saying that the lands did not belong to the deceased,

but belonged to the Roza Trust. It was also noted that the Shah-E-Alam

Roza which was a public wakf was not a party in Civil Suit No. 72 of 1943 or

in First Appeal No. 188 of 1952, nor was the Charity Commissioner a party

in the appeal. It was observed that the judgment in the first appeal was not

a judgment in rem, but a judgment in personam.

19. The Charity Commissioner, on a very detailed and analytic consideration

of the material on record, found that it was satisfactorily established that

Rasulabad lands belonged to and were of the ownership of Shah-E-Alam

Roza, which was a public wakf. He negatived the contention of the

Sajjadana-shin Musamiya that the Rasulabad lands belonged to him (see

paragraphs 24 to 36 of the order of the Charity Commissioner with findings

in paragraph 36). The Charity Commissioner also came to a finding that the

entire villages Isan-pur and Sarsa also belonged to Shah-E-Alam Roza as a

public wakf. (see paragraph 43 of the order of the Charity Commissioner).

As regards village Vasna, on considering the entire oral and documentary

evidence, he formed an opinion in paragraph 55 of the order that the entire

village Fatehpur belongs to Shah-E-Alam Roza and that the persons named

in the list exhibit 29 were co-sharers only in the income of the village Vasna

to the extent shown against their respective names. He held that they were

neither owners nor co-sharers along with Shah-E-AIam Roza in the corpus

of the village. Thus, all the properties were held to be the properties of the

Roza Trust which were registered as a public trust. Admittedly, there has

not been any stay of the decision of the Charity Commissioner and therefore

as per the record maintained under the Trusts Act of 1950, the Roza Trust is

a registered public trust and all these four villages are registered as the

properties of the Roza Trust after a very detailed inquiry held by the

authorities under the Bombay Public Trusts Act.

20. Thus, both the authorities, namely, the Charity Commissioner under the

Bombay Public Trusts Act, 1950, as well as the Appellate Tribunal on its

own reasoning, albeit, on the material before it which included the orders

made by the Deputy Charity Commissioner and the Charity Commissioner,

the documents such as Sanad issued by Aurangzeb and the Sanads of the

Government, the survey settlement register and the historical account given

in the textbooks, came to the same finding that these lands of the four

villages belonged to the said public trust.

21. So far as the public trust of the nature of the wakf is concerned, the

registration of such public trust is done under the provisions of the Bombay

Public Trusts Act, 1950, since the provisions of the earlier Wakf Act, 1954,

and the later Wakf Act of 1995, were not extended to Gujarat. As provided

by Section 3(2) of the Wakf Act, 1954, it was to come into force in the State

on such date as the Central Government may by notification appoint.

Therefore, the said Act did not apply automatically to all the States. It was

made applicable to the Union Territory of Hyderabad with effect from

January 15, 1955, and, therefore, it applied to the area known as

Marathavada which was part of the State of Hyderabad till November 1,

1956. After Marathavada area became part of the State of Bombay under

the States Re-Organisation Act, 1956, the said Act of 1954 continued to

apply to that area. So far as the Gujarat State is concerned, the Act of 1954,

was applied to Kutch area from January 15, 1955 (i.e., before its formation

on May 1, 1960), and, therefore, the Act continued to apply to the Kutch

area. Therefore, the Bombay Public Trusts Act, 1950, is applicable in

Gujarat, except the area of Kutch to which the Wakf Act, 1954, applied. The

Wakf Act of 1954 was repealed by the Wakf Act of 1995 which again has a

provision under Sub-section (3) of Section 1 that it shall come into force in a

State on such date as the Central Government appoint. It is in this

background that the inquiry was rightly initiated under Section 19 of the

said Trusts Act of 1950 in respect of the Roza Trust and its properties.

22. Section 19 of the Bombay Public Trusts Act, 1950, inter alia, empowers

the Deputy or Assistant Charity Commissioner to make an inquiry on his

own motion for the purpose of ascertaining : (i) whether a trust exists and

whether such trust is a public trust, and (ii) whether any property is the

property of such trust, besides other matters which are enumerated under

Section 19. On completion of the inquiry, he is required to record his

findings with reasons, as provided by Section 20 and in accordance with the

findings recorded, he is bound to make entries in the register kept under

Section 17 of the Act. If appeals or applications are made under the Act, the

entries will be made in accordance with the final decision of the competent

authority provided by the Act, as laid down by Section 21(1). Sub-section (2)

of Section 21 provides that the entries so made shall, subject to the

provisions of the said Act and subject to any change recorded under its

provisions that follow, be final and conclusive.

23. Section 79 of the Bombay Public Trusts Act, 1950, provides that, any

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 or the Charity Commissioner in

appeal as provided by the Act. Sub-section (2) of Section 79 lays down that

the decision of the Deputy or Assistant Charity Commissioner or the Charity

Commissioner in appeal, as the case may be, shall, unless set aside by the

decision of the court on application or of the High Court in appeal, be final

and conclusive. This would mean that unless the decision is set aside by the

court on application or the High Court in appeal, it shall continue to

operate.

24. Section 80 of the Bombay Public Trusts Act, 1950, lays down that, save

as expressly provided in the Act, no civil court shall have jurisdiction to

decide or deal with any question which is by or under the 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. Therefore, the civil court's jurisdiction to decide any

question as to whether or not a trust exists and such trust is a public trust

or particular property is a property of such trust which is required to be

decided by the Deputy or Assistant Charity Commissioner or the Charity

Commissioner in appeal and which is treated as final and conclusive until

set aside by the court on application or the High Court in appeal, is

expressly taken away by the said provision.

25. Civil courts have, under Section 9 of the Code of Civil Procedure,

jurisdiction to try all suits of a civil nature excepting suits of which their

cognizance is either expressly or impliedly barred, and as per Explanation

1, a suit in which the right to property or to an office is contested is a suit of

a civil nature, notwithstanding that such right may depend entirely on the

decision of questions as to religious rites or ceremonies. Section 9 of the

Code of Civil Procedure, 1908, empowers the civil court to try all suits of a

civil nature except where the jurisdiction of the civil court was expressly or

by necessary implication barred. The effect of Section 80 of the Bombay

Public Trusts Act, 1950, was to expressly take away the jurisdiction of the

civil court in respect of the aforesaid disputes which could now be inquired

and decided under the said Act only by the Deputy/Assistant Charity

Commissioner or the Charity Commissioner in appeal. In other words, the

jurisdiction to decide the questions as to the title to the property which

ordinarily could be decided by a civil court, was in the context of public

trusts transferred to the authorities created under this special Act. The

entries made in the registers maintained in the public trusts registration

office by the Deputy or Assistant Charity Commissioner under Section 17 of

the said Trusts Act of 1950 are to be treated as final and conclusive, as

provided by Sub-section (2) of Section 21.

26. In this context, we may also note the provisions of Section 35 of the

Indian Evidence Act, which provide that, an entry in any public or other

official book, register, or record, stating a fact in issue or relevant fact, and

made by a public servant in the discharge of his official duty, or by any

other person in performance of a duty specially enjoined by the law of the

country in which such book, register, or record is kept, is itself a relevant

fact. Thus, such entries in the register of public trusts showing whether a

trust is registered as a public trust and that the properties are registered in

the name of the trust would be relevant material before an authority or a

court to decide as to whether the public trust existed and as to whether the

properties shown in its name are really the properties of the public trust.

27. The functions of the Assessing Officer are to make inquiry before

assessment under Section 142 and to make an assessment order under

Section 143 of the Income-tax Act, 1961. For the purpose of inquiry before

assessment, the Assessing Officer is required to serve a notice under

Section 142(1) of the Act, inter alia, requiring the person concerned to

furnish in writing and verified in the prescribed manner information of all

assets of the assessee. As regards the assets and liabilities not included in

the account, he is required to get prior approval of the Joint Commissioner

before requiring the assessee to furnish a statement of all such assets and

liabilities. The assessee is required to furnish particulars in the prescribed

form, as provided in the Rules framed under the said Act. In order to ensure

that the assessee has not underestimated the income, the Assessing Officer

shall serve notice under Section 143(2) on the assessee requiring him to

attend his office or to produce or cause to be produced any evidence on

which the assessee may rely in support of the return. The Assessing Officer

is empowered to require the assessee to produce evidence on specified

points under Sub-section (3) of Section 143 and after taking into account all

the relevant material which he may have gathered, the Assessing Officer

makes assessment of the total income or loss of the assessee and

determines the sum payable by him or sum that may be refundable on the

basis of such assessment. When the assessee fails to comply with the notice,

the Assessing Officer, after taking into account all relevant material which

he may have gathered, has to make the assessment of the total income or

the loss to the best of his judgment under Section 144 of the said Act.

28. For the assessment of income, a question may often arise before the tax

authority as to whether the particular property belongs to the assessee or

not. If an assessee has concealed particulars of an asset from which income

is derived, it would be within the powers of the Assessing Officer to trace it

out for the purpose of ascertaining the income of the assessee therefrom.

29. Under Section 11

of the said Act, it is provided that, subject to sections 60 to 63 thereof, the

income mentioned therein shall not be included in the total income of the

previous year of the person in receipt of the income and this includes the

income derived from property held under trust wholly for charitable or

religious purposes to the extent to which such income is applied to such

purposes in India, as laid down in the said provision. When exemption is

claimed under Section 11(1) of the said Act, a question may arise before the

tax authority whether the property from which income is derived is a

property held under trust wholly for charitable or religious purposes.

Therefore, the Assessing Officer may call upon the person claiming such

exemption to produce evidence in support of his claim that the property in

question was held under trust of such nature. Such inquiry is not an inquiry

for adjudicating upon the title of the property, but only an inquiry aimed at

ascertaining whether the exemption claimed under Section 11 is warranted.

During such inquiry, which is undertaken in the process of making of the

assessment order, the nature of evidence adduced or gathered may be in

the form of documents of title or grants, entries from the trust register

showing whether the trust is registered as a public trust, and as to whether

the properties in question are registered as the properties of the trust and

other adjudications, having bearing on the title of the property, made by any

competent forum. Thus, the scope of the inquiry under the Income-tax Act,

1961, is wholly different from the scope of the inquiry under the Bombay

Public Trusts Act, 1950. When the evidence that may be adduced before the

Assessing Officer or gathered by him during the assessment proceedings,

conclusively shows that the trust is a registered public trust, and that the

property from which the income is derived is property held under trust

wholly for charitable or religious purposes, the tax authority would

ordinarily have to accept such evidence and proceed to determine what

income is derived from such property held under trust and to what extent it

is applied to such purposes. If, however, the question whether the property

is held by the trust, or whether there exists such trust, has not been finally

adjudicated by the competent forum, the Assessing Officer can even go into

the question of title for the limited purpose of deciding what income is

derived from the property held under such trust. It, however, cannot be

countenanced that even where there is a final adjudication of the fact by a

competent statutory forum under the Bombay Public Trusts Act, 1950, that

there is a public trust, and that the particular property is held by such

public trust wholly for charitable and religious purposes, the assessment

officer can simply ignore those findings, which may in a given case have

been upheld till the apex court, and play a different tune by pronouncing

that there is no such public trust or that the property in question is not that

of the public trust despite these having been so registered under the

provisions of the said Act. The authorities functioning under the laws made

by Parliament are not required to ignore the provisions of the laws made by

the legislation of the State which operate in full force within the State. To

say that the assessment officer acts under the law made by Parliament and,

therefore, is not bound by anything done under the law made by the

Legislature of the State, as was sought to be vehemently urged on behalf of

the Revenue, is to ignore the constitutional scheme of distribution of

legislative powers. Indeed, in case of a conflict between law made by

Parliament and law made by the Legislature of a State, where any provision

of a law made by the Legislature of State is repugnant to any provision of a

law made by Parliament in exercise of its legislative powers, the law made

by Parliament, whether before or after the law made by the Legislature of

the State, shall prevail, and the law made by the Legislature of the State

shall to the extent of repugnancy, be inoperative but so long only as the law

made by Parliament continues to have effect, as provided by article 251 of

the Constitution. But, surely when the legislative provisions operate in

different fields as in the present case, there can arise no question of

repugnancy and the authorities acting under the laws would be bound by

any action validly taken under the respective laws. We cannot, therefore,

subscribe to the extreme view canvassed for the Revenue that the income-

tax authority acting under the Income-tax Act is not bound by the valid

conclusive findings under the Bombay Public Trusts Act, 1950, that a trust

is a public trust, and that a particular property is that of such trust. The

adjudicatory function of the tax authority in a case where he finds that the

title is finally and conclusively determined under the law would start for the

purpose of assessment where the adjudicatory function of the Charity

Commissioner has ended by such conclusive determination, unless the

Central statute otherwise provides. Thus, while it is true that the tax

authority, during the assessment proceedings, can always inquire into the

question of ownership of the property and decide the issue in the context of

the relevant provisions of the said Act, in order to ascertain the income of

the assessee for bringing it to tax, it will not be open for the tax authorities

to ignore the relevant evidence of the statutory registration of a public trust

and the fact of the properties having been registered as the properties of

such public trust under the provisions of the Bombay Public Trusts Act,

1950. The tax authority is required to give due weightage to the material

which is relevant and which shows the registration of a public trust and its

properties under the provisions of the Bombay Public Trusts Act, 1950, in

light of the provisions of sections 19, 21(2), 79 and 80 thereof, and, to

assess the person concerned, keeping in view such relevant material which

may be produced during the assessment proceedings. Therefore, the

Tribunal could have safely relied upon the findings of the Charity

Commissioner reached under the Bombay Public Trusts Act, 1950, for

holding that the Roza Trust was a public trust and that the lands shown in

the register were the properties of the said trust. The Tribunal has,

however, on its own, after considering all the material which was also the

subject-matter of consideration before the Charity Commissioner, come to

its own finding that the properties in question belong to the Roza Trust

which was a public trust. We do not find any valid reason to disturb the

conclusions reached by the Tribunal and in fact, we are of the opinion that

the conclusions are fully warranted by the material on record. As noted

above, the Deputy/Assistant Charity Commissioner has been vested virtually

with the powers of a civil court on deciding the questions as to whether a

public trust existed and as to what were the properties of such trust and the

jurisdiction of the civil court is expressly barred by the provisions of Section

80 of the Bombay Public Trusts Act, 1950. The orders of the

Deputy/Assistant Charity Commissioner would, therefore, on these aspects

stand on the same footing as the declaration that may earlier have been

made by a civil court and which would have operated as judgment in rem.

As a general proposition, a judgment has no effect upon the persons who

are neither parties nor in privity with a party. Instead of personal judgments

directing a defendant to pay money or deliver possession or do or refrain

from doing something, there may be judgments affecting interests in a

thing. These are judgments in rem where a court has power over a thing

although not over all persons whose interests in it may be affected. Such

judgment in rem will affect all interests of everyone in the thing. Judgments

in rem are rendered in proceedings for registration of titles to land, in

admiralty suits when the court has jurisdiction over a ship, in proceedings

for forfeiture of things under revenue laws or statutes against use of things

in particular unlawful activities (see Jurisprudence by Roscoe Pound,

Volume 8, para. 147 at page 606).

30. The finding of the Deputy/Assistant Charity Commissioner pursuant to

an inquiry under Section 19 of the said Trusts Act that there is a public

trust, and that particular property is the property of such trust, is required

to be entered into the register and the entries so made subject to the

provisions of the Act or any change that may be recorded are treated as

final and conclusive. As per Section 79, the Assistant/Deputy Charity

Commissioner has exclusive jurisdiction to give such findings. These

findings operate as findings in rem and, therefore, cannot be ignored by the

authorities under the Income-tax Act.

31. We may now proceed to consider whether the judgment of the Bombay

High Court in First Appeal No. 188 of 1952 precluded the consideration of

the question, whether the Roza Trust was a public trust and whether the

properties which were treated in the administration suit as private

properties were, in fact, the properties of the public trust. As noted above,

both the Income-tax Tribunal as well as the Charity Commissioner have held

that the decision of the Bombay High Court did not operate as res judicata,

because, the Roza Trust was not a party before it and the question whether

the properties were of the said public trust was not directly and

substantially in issue.

32. In this context, we may note that a Division Bench of this court

in Kuberbhai Shivdas v. Mahant Purshottamdas Kalyandas [1961] 2 GLR

564, while considering the provisions of the Bombay Public Trusts Act,

1950, held that the inquiry made by a Deputy or Assistant Charity

Commissioner is by no means an administrative or an executive inquiry but

a judicial inquiry, and that the inquiry is not only for the purpose of

registration. It was held that the Bombay Public Trusts Act was a complete

Code for dealing with matters set out in sections 18 and 19 and recourse

must be had to the procedure laid down in the Act. It was also held that the

provisions of Section 79 shall, with a finding of any entry made under

sections 19, 20 and 21, constitute not merely an administrative order for the

purpose of registration only or an order as between the Charity

Commissioner and the trustee only, but such a finding and an entry made on

the basis thereof are as regards the trust, the properties belonging to it and

mode of succession to the office of the trustee. In Trustees of Jam-Jodhpur

Sthanak Vasi Vardhman Vanik Jain Sangh v. Thambaklal Jivaram, AIR 1987

Guj 167 ; [1987] 28 (1) GLR 550, it was held by this court that the

jurisdiction of the civil courts was taken away in respect of the matters

which are to be decided by the Assistant or Deputy Charity Commissioner

or the Charity Commissioner in appeal and if the civil court decided such

issues, it would be acting beyond its powers and its judgment will not

operate as res judicata. Similar view was taken in Sherasiya Sdji Alavadi

Momin v. State of Gujarat, AIR 1985 Guj 180 ; [1985] 26 (1) GLR 513 and it

was held that only the Deputy or Assistant Charity Commissioner can decide

whether any property is a property of a public trust. In Alimiya Mahmadiya

v. Sayed Mohamed Baquir El-Edroos Valde Sayed Jaffer Elo-Edros [1968] 9

GLR 1002, it was observed that, in order to attract the doctrine of res

judicata, the law applicable to the subject matter at both the times must be

the same.

33. In Municipality of Taloda v. Charity Commissioner, AIR 1968 SC 418,

where the previous suit was brought by the Municipality against a

trespasser for declaration of its title to the suit property and eviction of

trespasser and recovery of possession and in which it was contended by the

trespasser that the suit property was held in public trust for saints and,

therefore, as a Sadhu, he was entitled to reside therein and the suit came to

be decreed, it was held that a subsequent application under Section 19 of

the Bombay Public Trusts Act, 1950, for determining that the property was

held under a public trust of a religious or charitable character, was not

barred by the rule of res judicata (see paragraph 6 of the judgment). This

decision puts the matter beyond any pale of doubt, the settled legal position

that finding of a civil court on the question whether a public trust exists and

about the properties of such trust cannot operate as res judicata in

proceedings under Section 19 of the Bombay Public Trusts Act, 1950. We,

therefore, are in full agreement with the Tribunal that the judgment of the

Bombay High Court in First Appeal No. 188 of 1952 did not preclude the

authorities from deciding the question whether the Roza Trust was a public

trust and about the properties of that trust under the provisions of the

Bombay Public Trusts Act, 1950.

34. The contention raised on behalf of the Revenue that expenses incurred

on Sajjadanashin by the Roza Trust cannot be exempted under Section 11 of

the Act, is misconceived. The provision for a Sajjadanashin is not a provision

for the man, but for the institution, as noted above. The Sajjadanashin as a

spiritual leader is an integral part of the Roza Trust and the expenses which

may be incurred on the Sajjadanashin by the Roza Trust would not be

expenses incurred for a private purpose. As held by the Patna High Court in

Moham-mad Kazim's case, AIR 1932 Patna 33, the provision for the

maintenance of the Sajjadanashin is the provision for him as the head of the

institution and it is a trust and not a personal grant. We respectfully agree

with that view. Such expenditure on the Sajjadanashin also described as

Madad-E-Maash was included within the definition of "wakf" under Section

3(1) of the Wakf Act, 1954, which can provide guidance in the matter. As

per that definition, "wakf" meant the permanent dedication by a person

professing Islam or any other person, of any movable or immovable

property for any purpose recognised by the Muslim law as pious, religious

or charitable, and included, inter alia, grants including "Madad-E-Maash",

as provided in Sub-clause (ii) of Clause (1) of Section 3 of that Act.

Therefore, there is no reason to disturb the finding of the Tribunal on this

count.

35. The contention that the Roza Trust was once registered as wakf under

the Musalman Wakf Act, 1923, and later, it was deleted on September 3,

1934, by the Collector and, therefore, that decision taken by the competent

authority finally concluded that there was no public trust any more, and this

would preclude any inquiry under the provisions of the Bombay Public

Trusts Act, 1950, is thoroughly misconceived for the simple reason that the

income-tax authorities have not decided the non-existence of a public trust

on this ground, and further, because, there was no decision of the district

court under the Musalman Wakf Act, 1923, for removing the wakf from the

list. It will be noticed from the provision of Section 6(c)(5) that the court

acting under the said section could not try or determine any question of title

of any person claiming adversely to the wakf. Therefore, the court could not

have adjudicated any question as to whether the property belonged to the

wakf or the Sajjadanashin. As held by the Bombay High Court, an inquiry

under Section 6(c)(1)(i) of the Musalman Wakf Act, 1923, was confined to

cases where the existence of the wakf was admitted and where the

existence of the wakf was disputed, even the district judge had no

jurisdiction to make any inquiry. We do not know under what

circumstances, on September 3, 1934, the wakf was deleted from the list of

wakfs by the Collector on the basis of an application which was made before

him. No contention was canvassed on this basis before any of the

authorities below. Even if any such order removing the wakf from a list of

wakfs was made by the Collector, that would not preclude an inquiry under

the Bombay Public Trusts Act, 1950. It is not as if on such removal of the

wakf from the list maintained under the Musalman Wakf Act, 1923, the

question of there being a public trust and the property being of that public

trust, can never arise thereafter. The relevant and reliable material on

record clearly points to existence of such a public trust and to the fact that

these lands were the properties of that public trust, as held by the Charity

Commissioner and as also held independently by the Tribunal, warranting

no interference by this court by taking a different view of the matter.

36. In the above view of the matter, we are of the opinion that the Tribunal

was right in holding that the judgment of the Bombay High Court did not

operate as res judicata, and that Saiyed Musamiya was not prevented from

taking up a stand that the properties belonged to the Roza Trust. It was also

right in holding that the Roza Trust was a wakf and that the complex of

buildings and the lands at Rasulabad were the wakf properties belonging to

it, and that the lands at Vasna, Isanpur and Sansa were also wakf properties

belonging to the Roza Trust. It also correctly held that the exemption under

Section 11 of the said Act was available to the assessee-Roza Trust in

respect of the income spent as "Madad-E-Maash" on the maintenance of the

Sajjadanashin, his family and his descendants to the extent of Rs. 30,000 a

year, and that the exemption under Section 11 of the said Act was available

in respect of that amount to the aforesaid extent. The Tribunal has also

rightly held that the exemption under Section 11 of the Act was available to

the assessee-Roza Trust, provided the conditions mentioned therein were

fulfilled. It, therefore, rightly restored the matter to the Assessing Officer to

assess the income of Rasulabad, Vasna, Ishanpur and Sansa lands as the

income of the Roza Trust and to grant benefit under Section 11 of the said

Act, subject to the fulfilment of the conditions mentioned therein. The

Tribunal also rightly held that the amount of Rs. 30,000 a year received by

the Sajjadanashin would be the income to be taxed in his hands.

37. In the above view of the matter, all the questions referred to this court

by the Tribunal are answered in the affirmative, in favour of the assessee-

trust. The reference stands disposed of accordingly with no order as to

costs.

2010 STPL(Web) 1061 SC 1

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Supreme Court Judgements @ www.stpl-india.in

2010 STPL(Web) 1061 SC

SUPREME COURT OF INDIA

(MARKANDEY KATJU & GYAN SUDHA MISRA, JJ.)

SAINATH MANDIR TRUST

Appellant

VERSUS

VIJAYA & ORS.

Respondents

Civil Appeal No. 3030 of 2004-Decided on 13-12-2010.

Property Dispute

JUDGMENT

Gyan Sudha Misra, J.-This appeal by special leave has been filed against the Judgment and

Order dated 27.03.2003 passed by the High Court of Judicature at Bombay, Bench at Nagpur, in

Second Appeal No. 246 of 1990 whereby the appeal was dismissed on merit. Consequently, the

judgment of reversal passed by the Additional District Judge, Amaravati allowing the appeal and

setting aside the judgment and order of the Trial Court which had dismissed the suit of the

plaintiff/respondent, was upheld.

2. The origin of this appeal at the instance of the defendant/appellant herein emanates from a

Regular Civil Suit No. 166 of 1983 which had been filed by the deceased plaintiff-Shri Vitthal

Motiramji Mandale who is now represented by his legal heirs Respondent Nos. 1-7, for

possession and damages valued at Rs. 17,500/- in the Court of Civil Judge Senior Division,

Amaravati, against the appellant - Sainath Mandir Trust which is a registered public trust within

the provisions of Bombay Public Trusts Act 1950. The suit land comprises of a plot bearing No.

57, arising out of original fields bearing Survey No. 33, situated at Saturana in the outskirts of

Amravati Township. As per the case of the defendant/appellant herein, which admittedly is a

public trust, the suit property was dedicated to the idol of Saibaba by the respondent No. 8

/original defendant No.2 by way of a gift deed executed way back on 31.1.1974 which according

to the appellant's version, was immediately acted upon as possession was also handed over to the

appellant-trust which is in occupation of the suit property till date. It is the specific case of the

defendant/appellant that the suit plot was donated by way of a gift deed executed by the original

defendant No.2 /respondent No. 8 herein Shri Vasant Mahadeo Fartode on 31.1.1974 essentially

for building a residential accommodation for devotees of the Saibaba Mandir run by the

appellant-trust. Thus, by virtue of the gift deed, the admitted owner respondent No. 8 / original

defendant No. 2 Shri Vasant Mahadeo Fartode was divested of the title over the suit property

after he executed the gift deed and also delivered possession of the plot to the appellant-trust.

Hence, as per the case of the appellant Sainath Mandir Trust, the gift deed dated 31.1.1974 was

duly acted upon since the appellant immediately came in possession of the suit property and

continues to remain in possession of the same till date ever since 1974.

3. As against the aforesaid case of the appellant, the predecessor of the contesting respondent

Nos. 1-7, late Shri Vitthal Motiramji Mandale who is now legally represented by the respondent 2010 STPL(Web) 1061 SC 2

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Nos. 1-7, intended to purchase the suit property and therefore issued a notice in daily

"Matrbhumi" dated 2.10.1982 thereby inviting objections in respect of the said plot. Further, case

of the respondent Nos. 1 to 7 is that no objections were received in response to the notice as a

result of which the predecessor of respondent Nos. 1 to 7 i.e. late Shri Vitthal Motiramji Mandale

purchased the plot from the respondent No. 8-Shri Vasant Mahadeo Fartode by a registered sale

deed dated 14.10.1982 for a consideration of Rs. 17,000/-. As per the plaintiff/respondent's case,

they also claimed to have immediately taken possession of the said property after execution of the

sale deed and it is further averred that when the contesting respondents wanted to put fence

around the said plot, then on 4.12.1982 they noticed a board on the disputed plot which was put

up by the appellant-trust on which it was mentioned that the respondent No. 8/defendant No.2 had

given the said plot to the appellant-trust for construction of a residential accommodation for the

devotees of Saibaba Mandir. In view of this notice, the respondents sent a notice on 7.12.1982 to

the appellant-trust to remove the board and further do not obstruct to the fencing of the suit plot

which was responded by the appellant-trust stating that they are in possession of the suit plots

since 31.1.1974 and are owners of the plot in question and cannot be directed to vacate.

4. The respondent felt seriously aggrieved with this response and hence a Regular Civil Suit No.

166 of 1983 was filed by the predecessor of the contesting respondent Nos. 1 to 7 - Shri Vitthal

Motiramji Mandale for possession and damages valued at Rs. 17,500/- in the Court of Civil

Judge, Senior Division, Amaravati. The appellant-trust contested the suit by filing a written

statement on 19.12.1983 asserting their ownership and possession over the suit property since

31.1.1974. It was stated therein that the suit land had already been gifted to the appellant-trust by

gift deed dated 31.1.1974 which was properly executed and validly attested and had also been

acted upon by the parties concerned. It was, therefore, submitted therein that by virtue of the gift

deed respondent No. 8/defendant No. 2 had no subsisting title or ownership as regards the suit

property and as such he was not entitled to subsequently execute any sale deed in respect of the

suit property.

5. The learned IInd Joint Civil Judge, Junior Division, Amravati who tried the suit was finally

pleased to dismiss the suit and denied the relief regarding the recovery of possession of the said

plot. However, the suit was decreed to the extent of damages of Rs. 17,500/- to be paid to the

respondent/original plaintiff by the respondent No. 8/original defendant No.2 within 30 days

alongwith the costs of the suit. It was further directed that the respondent No. 8/original defendant

No.2 shall pay future interest on the principal amount of Rs. 17,000/- from the date of filing of

the suit till its full realization at the rate of Rs. 10/- per cent per annum to the predecessor of

respondent Nos. 1 to 7 herein as it was held that respondent No. 8 could not execute the sale deed

in favour of a third party i.e. the predecessor of respondent Nos. 1 to 7 herein as he had already

executed a gift deed in favour of the appellant way back on 31.1.1974 which was acted upon as a

result of which the appellant-trust was already in possession of the suit land. Thus, the Trial Court

was pleased to dismiss the respondent/ original plaintiff's claim in so far as the recovery of

possession of the suit plot is concerned.

6. The predecessor of the plaintiff/respondent Nos. 1 to 7 assailed the judgment and order of the

Trial Court before the Court of learned District Judge, Amaravati and the appellant-trust also filed

cross-objections challenging the findings of the trial court in so far as the validity of the gift deed

executed in favour of the appellant was concerned. It had been submitted therein that the gift

dated 31.1.1974 was for a price below Rs. 100 and it was in favour of the deity and as such was

admissible; hence the Trial Court committed an error in holding that the gift deed was not valid.

The appellant therein had also contended that the gift deed conferred a legal and valid title

coupled with possession in favour of the appellant-trust and hence the subsequent documents of

sale deed claimed to have been executed in favour of the plaintiff/contesting respondents ought 2010 STPL(Web) 1061 SC 3

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not to have been ignored as the vendor Shri Vitthal Motiramji Mandale was not left with any title

concerning the suit property. It was further pointed out from various circumstances and evidence

brought on record, that a fraudulent collusion exited between the original plaintiff and the

defendant Nos.1 and 2 i.e. vendor and the vendee and the alleged sale deed did not confer any

title to the vendee since the vendor had already executed a gift deed in favour of the appellanttrust almost 8 years prior to execution of the gift deed which was acted upon and possession was

delivered to the appellant-trust. However, the First Appellate Court being the Court of Additional

District Judge, Amaravati was pleased to allow the appeal of the plaintiff/respondents and

rejected the cross-objections filed by the appellant-trust.

7. Being aggrieved by the Judgment and Order dated 4.5.1990 passed by the Additional District

Judge, Amaravati, the appellant-trust was constrained to prefer a Second Appeal No. 246 of 1990

before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur wherein the substantial

questions of law, inter alia, was raised that the civil suit filed by the plaintiff/respondent was

expressly barred in terms of the provisions of Sections 19, 20, 79 and 80 of the Bombay Public

Trusts Act 1950. The substantial question of law was further raised whether the gift deed dated

31.1.1974 being an Act of "Dedication" of the suit property by the respondent No. 8 to the deity

which is not a "living person" would not be "Dedication" of property in terms of Section 123 of

the Transfer of Property Act and hence whether the provisions of the same are not applicable to

the deed of gift which had been executed in favour of the deity. Substantial question was also

raised whether the suit could be entertained without permission of the Charity Commissioner

under Sections 50 and 51 of the Bombay Public Trusts Act 1950 which had not been obtained by

the original plaintiff prior to filing of the suit. The gift deed dated 31.1.1974 having been acted

upon in pursuance of which the appellant-trust came in possession of the said property since

31.1.1974 and continues to be in possession till date, could not have been ordered to be restored

in favour of the plaintiff/respondent predecessor as the sale deed dated 14.10.1982 which was

subsequently executed by the vendor, could not confer any right and title to the respondent /

purchaser as the plot in question had already been dedicated to the idol of which the appellant is

the trust.

8. The learned single Judge of the High Court of Bombay at Nagpur Bench, Nagpur, however,

was pleased to dismiss the appeal as it was held that Section 123 of the Transfer of Property Act

lays down the procedure in which the property can be transferred by way of a gift and it is

necessary that the said document should have been registered and it should have been signed by

the donor attested by two witnesses. It was held that none of the requirements have been

complied and, therefore, the appeal against the judgment and order of the Additional District

Judge, Amaravati was not fit to be entertained. Consequently the appeal stood dismissed against

which this appeal by special leave has been filed by the appellant -Sainath Mandir Trust and the

special leave having been granted in favour of the appellant, this appeal has come up before us for

hearing and its adjudication.

9. In so far as the contention of the plaintiff/respondent in support of the Judgment and Order of

the High Court as also First Appellate Court is concerned, the arguments advanced before the

Courts below have been reiterated which was accepted by the High Court which held that the gift

deed executed in favour of the deity of which the appellant is a trustee, conferred no right and

title in favour of the deity and therefore the donor had every right to execute subsequently a sale

deed in favour of the predecessor of the contesting respondents in view of which the suit filed by

the predecessor of contesting respondent Nos. 1 to 7 was rightly decreed in their favour by the

First Appellate Court being the Court of Additional District Judge which was upheld by the High

Court. 2010 STPL(Web) 1061 SC 4

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10. Learned counsel for the contesting defendant/the appellant-trust on its part submitted at the

threshold that the gift deed which was executed in favour of the deity clearly reveals that the

same is a "Dedication" to an idol and not a "living person" by the respondent No. 8/original

defendant No. 2 and thus the same can be said to be a valid transfer in terms of Section 123 of the

Transfer of Property Act. Elaborating on this aspect, it was submitted that the idea, intention and

the feelings of the donor behind the gift deed has not been taken into consideration and going by

the nomenclature of the document, if the intention of the donor is appropriately construed from

the words of the gift deed, the same will clearly and unambiguously suggest that the defendant

No.2-Vasant Fartode who was a devotee of Saibaba had dedicated the said property to the idol for

the construction of `Bhakta Niwas'. This issue was specifically raised in the cross-appeal filed

before the District Judge and was reiterated in the Second Appeal. The gift in question was a

`dedication to the idol' and hence the same was a valid transfer in favour of the appellant-trust

and, therefore, there was no question of any registration of the same, since the gift deed was

executed on 31.1.1974 and was clearly acted upon as possession was also handed over to the

appellant- trust. The finding of the Trial Court would clearly demonstrate that the appellant was

in possession of the said property in question and the same is an undisputed position. The very

fact that the suit for possession was required to be filed by the respondent/original plaintiff further

substantiates the fact that the gift deed was acted upon and possession was delivered to the

appellant-trust.

11. Supplementing the aforesaid arguments, it was still further contended that in view of the

"dedication" of the property to the idol of which the appellant is a trustee, any suit for possession

against such property could not have been filed without the requisite permission of the Charity

Commissioner under Sections 50 and 51 of the Bombay Public Trusts Act 1950. A mere perusal

of Section 50 Sub- Section (2) of the Bombay Public Trusts Act specifically indicates that "where

a direction or decree is required to recover the possession or to follow property belonging `or

alleged' to be belonging to a public trust" and a dispute arises in regard to the same, permission of

the Charity Commissioner was clearly a necessary legal requirement. Hence, it was submitted

that as the appellant-trust is in possession of the plot in question and the relief of possession was

sought by plaintiff/respondent, the requisite permission under Sections 50 and 51 became

mandatory before filing such a suit, failing which the suit ought to have been rendered as not

maintainable. The requirement or necessity of such a permission is the basic requirement at the

very threshold and it is impermissible for the Court to enter into the merits of the matter vis-`-vis

the validity of the transfer etc. in such a suit which does not comply with the basic requirement of

obtaining such a permission. Hence, it was contended that First Appellate Court as also the High

Court have clearly erred in going into the issues of title and validity of the transfer which are only

subsequent issues which would arise only if the suit qualified the test of Sections 50 and 51 of the

Act. The Courts below also failed to take into consideration that the suit was bad for non- joinder

of necessary parties in terms of Order XXXI Rule 2 of C.P.C. as all the trustees of the Trust were

not joined as parties and hence the Trial Court was clearly justified in dismissing the suit as not

maintainable for want of necessary permission of the Charity Commissioner under Sections 50

and 51 of the Act as well as non-joinder of all the trustees in terms of Order XXXI Rule 2 of the

C.P.C. It was also submitted that the appellant-trust has been in uninterrupted possession of the

suit land since 31.1.1974 and the suit property in question had already been included and

recorded by the Charity Commissioner as a property of the trust and the Change Report to that

effect was required in terms of Section 22 of the Bombay Public Trusts Act. It was finally

submitted that the property in question was gifted for a pious purpose of construction of `Bhakta

Niwas' and, therefore, considering the aforesaid factors and the comparative hardships to the

parties, the suit for possession is not only fit to be dismissed on the ground of its maintainability

but even on the merits of the matter. 2010 STPL(Web) 1061 SC 5

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12. Having heard the counsel for the parties and considering the merits of the arguments

advanced by learned counsel for the contesting parties, it is evident from the record that the

plaintiff/respondent first of all intended to purchase the suit property in the year 1982 and,

therefore, published a notice in the daily "Matrbhumi" dated 2.10.1982 whereby objections were

invited in respect of the said plot. It is the case of the contesting respondent Nos. 1 to 7 that since

no objections were received, the original plaintiff - Shri Vitthal Motiramji Mandale purchased it

from the respondent No. 8/original defendant No.2 by registered sale deed dated 14.10.1982 for a

consideration of Rs. 17,000/- but even as per the case of the contesting respondent No. 7, the

appellant-trust resisted their action in taking physical possession of the suit land as they were

restrained from putting up fence on the land in question which prompted them to immediately

take action and they were compelled to file a suit for possession. Thus, even as per their own

case, the plaintiff/respondent was not in possession of the plot in question. In addition to this, the

finding recorded by the Trial Court which has not been interfered either by the First Appellate

Court or the High Court, the plaintiff/respondent was not in possession of the suit property in

spite of the sale deed dated 14.10.1982 and the possession of the suit property was never

delivered to the plaintiff predecessor or their legal heirs i.e. respondent Nos. 1 to 7. It can

logically be inferred that it is for this very reason that the plaintiff/respondent had published a

notice in a daily newspaper "Matrbhumi" inviting objections before purchasing the property as in

the normal circumstance, if a sale deed is executed by a private party holding title to the suit

property in favour of another private party, the question of publishing a notice in the newspaper

does not arise since the transaction of sale between two private parties do not normally require

issuance of a notice in the newspaper inviting objections.

13. Under the aforesaid background, the contention of learned counsel for the appellant that

permission should have been obtained from the Charity Commissioner under Sections 50 and 51

of the Bombay Public Trusts Act assumes significance and its legal implication cannot be

overlooked. When the disputed plot had already been dedicated in favour of the idol by virtue of a

deed of gift, of which the appellant is a trustee and the same was acted upon as possession also

was delivered to the appellant trust, it was surely necessary for the plaintiff/respondent Nos. 1 to

7/purchaser of the suit land and also incumbent upon respondent No. 8 /vendor of the sale deed to

seek permission from the Charity Commissioner before a sale deed could be executed in regard to

the disputed plot and more so before a civil suit could be instituted. We, therefore, find substance

in the contention of learned counsel for the appellant, that the dedication dated 31.1.1974 of the

plot for charitable purpose in the nature of gift having been acted upon as a result of which the

possession also was delivered to the appellant-trust, the civil suit filed by the predecessor of

contesting respondent Nos. 1-7 for possession was expressly barred in terms of Sections 19, 20,

79 and 80 of the Bombay Public Trusts Act 1950.

14. It is no doubt true that the gift deed was an unregistered instrument and no title could pass on

the basis of the same under Section 123 of the Transfer of Property Act. However, when the

document is in the nature of a dedication of immovable property to God, the same does not

require registration as it constitutes a religious trust and is exempt from registration. We have

taken note of a Full Bench decision of the Madras High Court reported in AIR 1927 Mad. 636 in

the case of Narasimhaswami vs. Venkatalingam and others, wherein it was held that Section

123 of the Transfer of Property Act does not apply to such a case for "God" is not a "living

person" and so the transaction is not a "transfer" as defined by Sec.5 of the Transfer of Property

Act. Thus, a gift to an idol may be oral and it may be effected also by an unregistered instrument.

But a different view has been taken in the case of Bhupati Nath vs. Basantakumari, AIR 1936

Cal. 556; Chief Controlling Revenue Authority vs. Sarjubai, AIR 1944 Nag. 33. In the Full

Bench decision of the Madras High Court in the matter of Narasimhaswami (supra), it had been

argued that a gift to idol of lands worth over Rs.100 requires registration and that a mere recital in2010 STPL(Web) 1061 SC 6

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the deed of gift which had been made, would not pass property. But it had been held by the Full

Bench that dedication of property to God by a Hindu does not require any document and that

property can be validly dedicated without any registered instrument. In the aforesaid case, the

deed of gift was not to a specified idol but to the Almighty Sri Kodanda Ramachandra Moorti.

Dealing with this matter, the Full Bench took note of the observation in the matter of Pallayya vs.

Ramavadhanulu, reported in 13 M.L.J. 364 wherein it was held by Benson and Bhashyam

Aiyangar, JJ. that a declaration of trust in relation to immovable property for a public religious

purpose is not governed by the Indian Trusts Act which by S. 1 declares it inapplicable to

religious trusts. It was also held that S. 123 of the Transfer of Property Act has no application to

dedication of land to the public as the section only applied to cases when the donee is an

ascertained or ascertainable person by whom or on whose behalf a gift can be accepted or

refused. Taking notice of several authorities, it was held that no document was necessary for the

dedication of property to charity. The Full Bench recorded as follows:

"We have not been referred to any case where it has been held that an oral gift for a

religious purpose requires registration. In this connection, I may point out that S. 123 of

the Transfer of Property Act only applies to transfer by one living person to another".

S. 5 of the Act runs as follows:

"In the following sections, `transfer of property' means an act by which a living person

conveys property, in present or in future, to one or more other living persons, or to

himself and one or more other living persons and `to transfer property' is to perform such

act. The learned Judges noted that a gift to God which in the said case was Sri Kodanda

Ramachandra Moorti cannot be held to be a gift to a living person. It had been argued in

the said matter that an idol in law is recognised to be a juristic person capable of holding

property and it must be held that a gift to an idol is a gift to a living person. But it was

held therein that the Almighty by no stretch of imagination, legal or otherwise, can be

said that the Almighty is a living person within the meaning of the Transfer of Property

Act. The learned Judges of the Full Bench saw no reason to differ from the Madras case

cited in that matter where the law had been settled for several years as it was observed

that the principle of `stare decisis' should be applied unless there are strong reasons to the

contrary as otherwise it would unsettle many titles. Concurring with this view, Chief

Justice Reilly held that if the gift is not intended to a living person within the meaning of

S. 5 of the Transfer of Property Act, the document would not require registration. This

judgment surely has a persuasive value to the issue with which we are confronted in the

instant matter and tilts the scale of justice in favour of the appellant-trust as the plot was

essentially dedicated to Sai Baba for a charitable purpose, although the same was in the

form of an unregistered deed of gift.

15. But even if we were to accept the contentious issue or leave it open and express no final

opinion that the deed of gift executed in favour of the appellant-trust having not been registered,

did not confer any title on the appellant-trust, it is not possible to brush aside the contention that

the respondent Nos.1 to 7-purchaser of the plot in question were legally bound by Section 51 of

the Bombay Public Trusts Act 1950 to obtain consent of Charity Commissioner before institution

of the suit against the appellant which was admittedly in possession of the property after the gift

deed was executed in its favour by the respondent No.8. It would be relevant to quote Section 51

at this stage which lays down as follows: 51 (1) :

"If the persons having an interest in any public trust intend to file a suit of the nature

specified in section 50, they shall apply to the Charity Commissioner in writing for his 2010 STPL(Web) 1061 SC 7

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consent. If the Charity Commissioner after hearing the parties and making such enquiries

(if any) as he thinks fit is specified that there is a prima facie case, he may within a period

of six months from the date on which the application is made, grant or refuse his consent

to the institution of such suit. The order of the Charity Commissioner refusing his consent

shall be in writing and shall state the reasons for the refusal."

16. Section 51 further envisages right of appeal by the affected party if the Charity Commissioner

refuses his consent to the institution of the suit. Prior to this Section 50 (ii) already envisages that

where a direction or decree is required to recover the possession of or to follow a property

belonging or alleged to be belonging to a public trust, a suit by or against or relating to public

trust or trustees or other although may be filed, consent under Section 51 of the Charity

Commissioner is clearly required under Section 51 of the Act of 1950 which is quoted

hereinbefore.

17. It is difficult to overlook that the decree holder/respondent herein although had gone to the

extent of publishing a notice in a local daily "Matrbhumi" inviting objections indicating that he

intended to purchase a suit land, he conveniently ignored the provisions of Section 51 of the

Bombay Public Trusts Act, 1950 and refused to apply to the Charity Commissioner before

instituting a suit against the appellant-trust especially when the possession of the plot was

delivered to the appellant-trust way back in the year 1974 but after more than eight years, the

vendor/respondent No.8 executed a sale deed in favour of the predecessor of respondent Nos.1 to

7. The relevance of Section 51 of the Bombay Trusts Act, 1950 although is clearly apparent and

the appellant had also raised it before the High Court, the learned Single Judge of the High Court

has not even addressed this important issue having a legal bearing on the right of the appellant to

retain the plot, which although had been in the form of a deed of gift, in fact it was practically in

the nature of dedication to the appellant-trust for charitable purpose which was to construct a

`Bhakt Niwas' for the devotees of Saibaba.

18. Hence, even if it were to be held that the deed of gift in favour of the appellant-trust did not

confer any title to the appellant-trust as the same was not registered and were also to be held that

the same cannot be treated to be a dedication to any idol, as this point was neither pressed hard

nor was argued threadbare and the Courts below have also not gone into this question, we do not

wish to enter into this question further. However, the fact remains that in view of the possession

of the property in question of the appellant-trust, it was obligatory on the part of the purchasers of

the plot in question/respondent Nos.1 to 7 to seek permission from the Charity Commissioner

under Section 51 of the Bombay Trusts Act, 1950 to recover the property by filing a suit or

initiating a proceeding. In fact, in the matter of K. Shamrao and others vs. Assistant Charity

Commissioner reported in (2003) 3 SCC 563, a two Judge Bench of this Court had been

pleased to hold that the Assistant Charity Commissioner under the scheme of the Act of 1950 i.e.

Bombay Public Trusts Act, 1950 possesses all the attributes of a Court and has almost all the

powers which an ordinary civil court has including the power of summoning witnesses,

compelling production of documents, examining witnesses on oath and coming to a definite

conclusion on the evidence induced and arguments submitted. Section 79 (1) of the same Act also

lays down that any question, whether or not a trust exists and such trust is a public trust or

particular property is the property of such trust, is required to be decided under its statutory force

by the Deputy or Assistant Charity Commissioner as provided under the Act and Section 80 bars

jurisdiction of the civil court to decide or deal with any question which is by or under this Act to

be decided or dealt with by any officer or authority under this Act.

19. Thus, when the appellant-trust was in occupation and possession of the property in question

then the respondent- plaintiff clearly could not have approached the civil court ignoring the 2010 STPL(Web) 1061 SC 8

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specific provision under the Bombay Public Trusts Act, 1950 which has laid down provisions to

deal with disputes relating to the property of the trusts. It also cannot be overlooked that in the

instant case, it is the original owner of the property i.e. respondent No.8 who had executed a deed

of gift in favour of the appellant-trust and subsequently after ten years, executed a sale deed in

favour of the predecessor of respondent Nos.1 to 7, who approached the Court for recovery of his

property in which case it could perhaps have been available for the owner of the property to

approach the civil court. But in the case at hand, it is the purchaser of the property predecessor of

Respondent Nos. 1- 7 who filed the suit for possession which clearly can be construed as the suit

for recovery of possession from the appellant-trust which was in possession of the property. In

that view of the matter, it was the statutory requirement of the Bombay Public Trusts Act, 1950 to

approach the Charity Commissioner before a suit could be instituted.

20. In view of the aforesaid discussion and in the light of the reasons assigned hereinbefore, we

set aside the judgment and order of the High Court as also the First Appellate Court and restore

the judgment and order of the Trial Court which had been pleased to dismiss the suit filed by the

plaintiff-respondents No.1 to 7. The Trial Court, however, had decreed the suit for return of the

money of Rs.17,500/- to the predecessor of respondents No.1 to 7 and also interest was ordered to

be paid on this amount by the vendor-respondent No.8. Since the respondent No.8 had already

been divested of his title to execute a sale deed in favour of respondent Nos.1 to 7 as he had

already executed a deed of gift in favour of the appellant-trust for charitable purpose, we are of

the view that in the interest of equity, he should not be saddled with the financial liability to

return the amount of Rs.17,500/- with interest to the respondent Nos.1-7. This amount, in our

view, in the interest of equity and fair play should be paid by the appellant-trust to the respondent

Nos.1-7 on behalf of Respondent No.8, as this part of the decree which had been passed by the

Trial Court in favour of respondent Nos. 1-7 had not been challenged by way of an appeal by the

respondent No.8. But as we have held that the appellant-trust is the rightful owner of the disputed

plot and the Respondent No.8 as a consequence has been held to have been divested of the

property, the amount paid by the predecessor of Respondent Nos.1-7, should be refunded to

Respondent Nos.1-7 without interest and thus the decree of the Trial Court shall be treated as

modified to this extent. This appeal accordingly is allowed, without any order as to costs.

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