HIRAGAR DAYAGAR Vs. RATANLAL CHUNILAL

JUDGEMENT

(1.) This Letters P tent Appeal raises a short but very interesting question of law relating to the maintainability of an appeal against an order made by a single Judge of the High Court in appeal against a decision of the District Court under sec. 72 of the Bombay Public Trusts Act 1950. It is not necessary for the purpose of determination of this question to state the facts giving rise to this Letter Patent Appeal in detail but it would be sufficient if we briefly set out a few of the relevant facts as that would help to understand how the question arises for consideration. There is a trust known as Dholeshwar Mahadev Trust which consists inter alia of a temple situate in Cambay and it was registered as a public trust by the Assistant Charity Commissioner on 10th November 1953 on an application made by one Motigar Lalgar Gosai. Motigar Lalgar Gosai having died on 21st October 1958 the appellants who are his heirs filed a change report under sec. 22 sub-sec. (1) claiming that their names be entered in the Register as trustees in place of Motigar Lalgar Gosai as they were his heirs. This change report was accepted by the Assistant Charity Commissioner by an order dated 6th March 1959 and the entry in the register was amended by showing the appellants as trustees of the public trust. Now it appears that when Motigar Lalgar Gosai made an application for registering the trust as a public trust he did not disclose to the Assistant Charity Commissioner that he had executed a deed of trust dated 30th November 1946 appointing respondents Nos. 1 to 3 as trustees and respondents Nos. 1 to 3 were therefore not shown in the register as trustees of the trust. Soon after the death of Motigar Lalgar Gosai however the respondents Nos. 1 to 3 realised that their names were not entered in the register as trustees and they therefore made an application under sec. 22A claiming that their names should be entered as trustees in plate of Motigar Lalgar Gosai. This application was made subsequent to the date of the order passed by the Assistant Charity Commissioner accepting the change report of the appellants. The Assistant Charity Commissioner on receiving this application held an inquiry and found that respondents Nos. 1 to 3 were trustees of the trust under the trust deed dated 30th November 1946 and they were entitled to have their names entered in the register as trustees and he accordingly by an order dated 29th June 1959 directed that the names of the appellants be deleted from the register and the names of respondents Nos. 1 to 3 be entered as trustees. The appellants) being aggrieved by this order made by the Assistant Charity Commissioner preferred an appeal to the Charity Commissioner. The main ground on which the appeal was based was that the Assistant Charity Commissioner had no jurisdiction to delete the names of the appellants and to substitute the names of respondents Nos. 1 to 3 as trustees in the register under sec. 22A that being the section under which the Assistant Charity Commissioner acted in making his order dated 29th June 1959 and the order dated 29th June 1959 made by him was therefore without jurisdiction. The argument of the appellants was that if respondents Nos. 1 to 3 were aggrieved by the order dated 6th March 1959 made by the Assistant Charity Commissioner accepting the change report of the appellants and entering the names of the appellants as trustees in the register under sec. 22 their remedy if at all was to prefer an appeal or revision application but they could not seek to set aside that order by inviting the Assistant Charity Commissioner to act under sec. 22AThe Charity Commissioner who heard the appeal was impressed by this contention of the appellants and he set aside the order dated 29th June 1959 made by the Assistant Charity Commissioner. Respondents Nos. 1 to 3 thereupon made an application being Miscellaneous Application No. 22 of 1962 in the District Court Kaira under sec. 72 seeking to set aside the decision of the Charity Commissioner. The learned Assistant Judge who heard the application disagreed with the view taken by the Charity Commissioner and taking the view that Assistant Charity Commissioner has jurisdiction to make his order dated 29th June 1959 under sec. 22A he set aside the decision of the Charity Commissioner and restored that of Assistant Charity Commissioner. The appellants being aggrieved by this decision of the learned Assistant Judge preferred an appeal before the High Court and since the value of the subject matter of the proceeding was less than Rs. 10 0 the appeal came to be heard by Mr. Justice M. U. Shah as a single Judge of this Court. Mr. Justice M. U. Shah confirmed the decision of the learned Assistant Judge and dismissed the appeal. The appellants thereupon preferred the present Letters Patent Appeal against the decision of Mr. Justice M. U. Shah.

(2.) When the Letters Patent Appeal reached hearing before us Mr. B. S. Kapadia learned advocate appearing on behalf of respondents Nos. 1 to 3 raised a preliminary objection against the maintainability of the appeal. This preliminary objection was also set out in a separate application being Civil Application No. 784 of 1971 filed on behalf of respondents Nos. 1 to 3. The contention urged on behalf of respondents Nos. 1 to 3 was that the order made by the learned Assistant Judge being an order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court no appeal lay to a Division Bench of the High Court against the judgment of Mr. Justice M. U. Shah under Clause 15 of the Letters Patent without a certificate obtained from Mr. Justice M. U. Shah that the case is a fit one for appeal and the Letters Patent Appeal filed by the appellants without obtaining such certificate of fitness from Mr. Justice M. U. Shah was therefore not maintainable. Now it was not disputed on behalf of the appellants that the present Letters Patent Appeal was filed by them without obtaining a certificate from Mr. Justice M. U. Shah that the case was a fit one for appeal under Clause 15 of the Letter Patent. But the argument of the appellants was that it was not necessary to obtain such a certificate of fitness in order to entitle the appellants to file the Letters Patent Appeal since the order made by the learned Assistant Judge which was confirmed by Mr. Justice M. U. Shah in appeal was not an order made in the exercise of appellate jurisdiction and Clause 15 did not therefore require that a certificate of fitness should be obtained from Mr. Justice M. U. Shah in order to maintain a Letters Patent Appeal against his judgment. The determination of these rival contentions depends on the true interpretation of Clause 15 of the Letters Patent and it would therefore be convenient at this stage to re-produce it. It reads as follows:- 15 And we do further ordain that an appeal shall lie to the said High Court of Judicature at Fort William in Bengal from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made in the exercise of the power of superintendence under the provisions of sec. 107 of the Government of India Act or in the exercise of criminal jurisdiction) of one Judge of the said High Court or one Judge of any Division Court pursuant to sec. 108 of the Government of India Act and that notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court pursuant to sec. 108 of the Government of India Act made (on or after the first day of February 1929) in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Divisional Court shall be to Us Our heirs or Successors a in Our or Their Privy Council as hereinafter provided. It will be seen that Clause 15 of the Letters Patent provides for an appeal from the judgment of one Judge of the High Court to a Division Bench of the High Court but it introduces a condition that if the judgment of one Judge of the High Court has been given in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court the Judge who passed the judgment must declare that the case is a lit one for appeal and it is only if such a declaration is given by the Judge who passed the judgment that an appeal can be preferred against the judgment to a Division Bench of the High Court. The question is whether this condition has applicability in the present case. It was common ground between the parties that the judgment of Mr. Justice M. U. Shall was passed in the exercise of appellate jurisdiction and it was equally common ground that it was in respect of an order made by a Court subject to the superintendence of the High Court. The only controversy between the parties was as to whether the order made by the learned Assistant Judge could be said to be an order made in the exercise of appellate jurisdiction. If it was made in the exercise of appellate jurisdiction the Letters Patent Appeal would not be maintainable since certificate of Mr. Justice M. U. Shah as so fitness was not obtained by the appellants but if it was not made in the exercise of appellate jurisdiction the Letters Patent Appeal would be maintainable for the condition which requires that the certificate of fitness should be obtained from the Judge who passes the judgment would not then apply.

(3.) To determine this controversy we must consider what is the nature and character of the jurisdiction exercised by the District Court when it deals with an application under sec. 72. Sec. 72 omitting portions immaterial reads as follows:-