2010 STPL(Web) 1061 SC 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 VERSUS VIJAYA & ORS Civil Appeal No. 3030 of 2004-Decided on 13-12-2010. Property Dispute JUDGMENT ..Respondents .Appellant

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 Court

Commissioner 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 assesseeRoza 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-EMaash 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 noncharitable 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. Subsection (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 Incometax 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 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 STPL(Web) 1061 SC 3 Sainath Mandir Trust Vs. Vijaya Supreme Court Judgements @ www.stpl-india.in 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 Sainath Mandir Trust Vs. Vijaya Supreme Court Judgements @ www.stpl-india.in 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 4

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 5 even on the merits of the matter. 2010 STPL(Web) 1061 SC

Sainath Mandir Trust Vs. Vijaya Supreme Court Judgements @ www.stpl-india.in 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 Sainath Mandir Trust Vs. Vijaya Supreme Court Judgements @ www.stpl-india.in 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 Sainath Mandir Trust Vs. Vijaya Supreme Court Judgements @ www.stpl-india.in 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 Sainath Mandir Trust Vs. Vijaya Supreme Court Judgements @ www.stpl-india.in 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. ------