SHAH HIRALAL VIRCHAND Vs. PATEL VITHALBHAI VAGHAJIBHAI

JUDGEMENT

(1.) In order to dispose of this appeal it is necessary to mention a few facts. There were two sisters named Dahi and Parvati. Both these sisters were residing together in one house situated at Karjan. Both of them were widows and without any issue. Parvati executed a will on 2-6-1952 and Dahi executed a will on 12-2-1954. Parvati died on 14 and Dahi died on 16-5-1954. It is common ground that both Bai Parvati & Bai Dahi created certain religious trusts in their respective wills. Several trustees were appointed by each of the sisters to administer the religious trust created by her. Two of these trustees were common. After the deaths of the two sisters the two common trustees made applications to the Assistant Charity Commissioner as they were required to do under the law to register the trusts and showed in each application the properties which according to them were trust properties bequeathed by the two sisters. One of the items in each of these two applications was an item of ornaments. According to the two common trustees each of the two sisters possessed at the time of her death ornaments worth Rs. 8 0 and that these ornaments constituted part of the trust properties the Respondents Nos. 1 & 2 contested these allegations of the two trustees. The latter two are appellants in this Court. The contention of the Respondents Nos. 1 and 2 was that all the ornaments worth Rs. 16 0 were part of the estate of Bai Dahi and all those ornaments constituted a part of the trust created by Bai Dahi and that none of the ornaments had belonged to Bai Parwati's estate and therefore the ornaments worth Rs. 8 0 could not be shown as being a part of the trust created by Parvati. This dispute was considered by the Assistant Charity Commissioner Baroda. He decided by his order dated 25-2-1955 that each of the two sisters was possessed of ornaments worth Rs. 8 0 and that the ornaments worth Rs. 8 0 formed a part of the trust created by Parvati and that Dahi was not possessed of ornaments worth Rs. 16 0 and consequently the trust created by Bai Dahi did not possess ornaments worth Rs. 16 0 The result of this order was that the objection raised by the Respondents Nos. 1 and 2 came to be dismissed and the statements made by the two appellants in their respective applications that each trust possessed ornaments worth Rs. 8 3 were upheld. The two respondents felt aggrieved by this decision of the Assistant Charity Commissioner and preferred an appeal to the Charity Commissioner under sec. 70 of the Bombay Public Trust Act 1950 The appeal was preferred only from the proceeding relating to the trust created by Parvati. The respondents did not prefer an appeal from the order; passed in the proceeding relating to the trust of Bai Dahi. The matter was referred by the Charity Commissioner to the Deputy Charity Commissioner. The appeal came up for hearing before the latter on 16-6-1955. On that day the two respondents were absent but the two appellants were present. Because the two respondents were absent the Deputy Charity Commissioner dismissed the appeal for default of appearance of Respondents Nos. 1 and 2 with costs. Aggrieved by this decision the Respondents Nos. 1 and 2 made an application under sec. 72 of the Bombay Public Trusts Act 1950 to the District Court at Baroda and prayed that the order of the Deputy Charily Commissioner be set aside and that it be held that the trust created by Parvati did not possess ornaments worth Rs. 8 0 but that the same belonged to the trust created by Dahi. The learned District Judge upheld that contention and he held that Bai Parvati had not left to the trust ornaments worth Rs. 8 0 and that all the ornaments worth Rs. 16 0 which the trustees had come into possession belonged to the estate of Bai Dahi and consequently formed a part of the trust created by Dahi. It is from this order that the present appeal has been preferred by the two common trustees of the two trusts under sec. 72 sub-sec. (4) of the Bombay Public Trusts Act 1950 (hereafter called the Act).

(2.) Mr. Oza the learned Advocate for the two appellants raised three contentions in this Court. His first contention was that the application under sec. 72 of the Act challenging the order passed by the Deputy Charity Commissioner was not maintainable under sec. 72(3) of the Act in the District Court. His second contention was that the contention now sought be raised by the two respondents was barred by the principle of res judicata inasmuch as those two respondents had not preferred an appeal from the decision given by the Assistant Charity Commissioner in the proceeding relating to the trust of Bai Dahi viz. that that trust possessed ornaments only worth Rs. 8 0 and not Rs. 16 0 is third contention was that the decision of the learned District Judge that the trust of Bai Parvati did not possess ornaments worth Rs. 8 0 was wrong on the merits and that he should have held that that trust possessed those ornaments and that Bai Dahi's trust did not possess ornaments worth Rs. 16 0 At the beginning of his arguments Mr. Oza had also mentioned a fourth point but he did not choose to address us on that subject at all. That fourth point was that the appeal to the Charity Commissioner was bad for non-joinder of the other three trustees who were co-trustees with the present appellants in the trust created by Parvati.

(3.) So far as the first point is concerned the argument is based upon the language of sec. 72(1) of the Act. That sub-section is as follows: