AMBELAL MAKANJI Vs. MANILAL NARHARISHANKER

JUDGEMENT

(1.) This is an appeal against the decision of the learned Extra Assistant Judge Surat who dismissed an application filed by the appellant under sec. 72 of the Bombay Public Trusts Act 1950 against the decision of the learned Charity Commissioner who reversed the order of the learned Deputy Charity Commissioner who had held that the estate in question was not a public trust on an application made by the first respondent Manilal Narharishanker.

(2.) The facts leading to this controversy are this way :The subject-matter of this controversy is Survey No. 547 comprising of 17 acres 32 Gunthas assessed at the annual revenue of Rs. 30 situated in the village of Achharan Taluka Olpad in the District of Surat. One Makanji Gopalji the deceased purchased this survey number on 13/04/1918 for Rs. 999/from one Khatu widow of Vajirkhan Kalekhan and other joint vendors. Thereafter by a document dated 27th May 1919 deceased Makanji made a disposition of this land to a public charitable trust. It is alleged by the appellant that by the said document no valid charitable trust was created. Makanji died on 12/11/1939. The present appellant Ambelal who is the daughters son of Makanji claims to be an adopted son of Makanji. The appellant intended to sell this property and for that purpose he got inserted an advertisement in connection with this proposed sale in favour of one Bavjibhai Bhavanbhai on 9/03/1953. As a result of this advertisement an application was made by the first respondent Manilal on 13/07/1953 being Application No. 102 of 1953 to the Deputy Charity Commissioner for registration of this land as a public trust under sec. 19 of the said Act. On 15/11/1954 the learned Deputy Charity Commissioner after an inquiry came to the conclusion that it was not a public trust. Over the decision of the learned Deputy Charity Commissioner Manilal filed an appeal to the learned Charity Commissioner. The learned Charily Commissioner reversed the decision of the Deputy Charily Commissioner and held that a valid public charitable trust was created under the said document of 27th May 1919. Being dissatisfied with this decision of the learned Charity Commissioner an application was filed by Ambelal the present appellant before the learned Extra Assistant Judge Surat who dismissed his application. It is over this decision that the present appeal has been filed.

(3.) It is contented before us by Mr. Thakore the learned counsel for the appellant in the first place that in this case the appeal which was filed by Manilal Narharishanker against the decision of the learned Deputy Charity Commissioner was on the date of its filing time-barred; that the learned Charity Commissioner before whom the appeal as filed had condoned the delay in filing the appeal; that this condonation of delay was wrong and the decision of the learned Charity Commissioner should not stand with the result that the decision of the learned Deputy Charity Commissioner should stand as a final decision in this matter. In this connection it was contended that Manilal had sent a memo of appeal on 6/01/1955 while the decision of the Deputy Charity Commissioner was given on 15/11/1954. The limitation period is 60 days for such an appeal It was contended that the appeal which was preferred by Manilal on the 6/01/1955 was not according to rule 37 of the Rules prescribed under the Bombay Public Trusts Act. Rule 37 prescribes the mode in which an appeal to the Charity Commissioner is to be filed from the decision of the Assistant or the Deputy Charity Commissioner. The requirements of the filing of such an appeal amongst others are that the appeal shall be sent either by registered post or by person or by pleader and shall be accompanied by a certified copy of the finding or order appealed from and by as many copies of the memo of appeal as are required for service upon the parties whose rights or interest would be affected by any order that may be passed in such an appeal and further the appellant has to pay into the office of the Charity Commissioner the costs of serving notice on all the respondents at the rates specified therein. In this case it was said that the memo of appeal was not as required under this rule 37 but was only by a letter and the formalities which are prescribed in rule 37 were not carried out. As such was the case after some correspondence between Manilal and the office of the Charity Commissioner the learned Charity Commissioner allowed Manilal to present a formal memo of appeal on 27/07/1955 and condoned the delay for the presentation of the appeal. By sec. 72(1) of the Act it is provided that any person aggrieved by the decision of the Charity Commissioner under secs. 40 41 70 or 70A on the questions as to whether a trust exists and whether such trust is a public trust can file an appeal within sixty days from the date of the decision. The present appeal falls under the decision given under sec. 70 of the said Act against the finding of the learned Deputy Charity Commissioner. By sec. 75 of the Act it is provided that in computing the period of appeal the provisions of secs. 4 5 12 and 14 of the Indian Limitation Act shall apply to the filing of such appeals and it is under sec. 5 of the Indian Limitation Act that the learned Charity Commissioner has condoned the delay holding that there was sufficient cause in this case for delay in presentation of the appeal. It is contended by Mr. Thakore that it was the erroneous exercise of judicial discretion on the part of the learned Charily Commissioner in condoning this delay. It was said that rule 37 quoted above had made specific provision for the mode in which the appeal was to be presented and that ignorance of law was the excuse of the party and in these circumstances . if the party in ignorance of the provisions of rule 37 did not present a proper appeal then the discretion should not have been exercised in its favour to condone the delay. We do not think that the contention which has been advanced by Mr. Thakore can be accepted by us. In this case the first respondent had presented an appeal but in the form of a letter in Gujarati. It is found that this document was lost and was not traceable in the office of the Charity Commissioner and there was correspondence on this account between the first respondent and the Charity Commissioners office. If the document was not lost in the Charity Commissioners office it is probable that the Charity Commissioners office would have brought to the notice of the first respondent in time that the memo of appeal which he had presented was not in proper form and if this was done the first respondent would have taken steps to file his appeal according to the rules in time. We do not think that in these circumstances if the learned Charity Commissioner condoned the delay for good and sufficient cause he exercised the judicial discretion vested in him improperly such that we should interfere with his discretion. This is one answer to Mr. Thakore's argument. But there is a second answer to Mr. Thakore's argument for in this case the learned Charity Commissioner has said that even if the case did not warrant condonation of delay this was a fit case where interests of justice demanded that he should exercise his revisional jurisdiction and his interference can also be deemed to be an interference in revision which he was perfectly entitled to do under the provisions of sec. 70A of the Bombay Public Trusts Act 1950 There is therefore no substance in this objection of Mr. Thakore.