SHIRISH CHRISTIAN Vs. MAGANLAL MANGALDAS GAMEET

JUDGEMENT

(1.) As issue involved in both aforesaid First Appeals are arising out of the same impugned judgment and order and as the Appeals are also arising from the common judgment and order of the learned City Civil Judge, they are being heard together and are being decided by this common order.

(2.) The present First Appeals have been filed being aggrieved and dissatisfied with the common judgment and order passed by the Learned Judge, City Civil Court No.6, Ahmedabad in Civil Misc. Application Nos.470 of 2008 with 630 of 2008 dated 03.02.2009 on the grounds stated in the memo of Appeal contending inter alia that the Court below has failed to appreciate that the basic issue before him was to determine as to whether the Church of North India (for short "CNI") is the successor and legal continuation of First District Church of Brethren (for short "FDCB") or not. It is contended that inspite of framing the issue, the findings have not been given. It is also contended that the Court below failed to appreciate the fact that objections raised to the change report were not legal and valid as the Trust was not dissolved on account of any change. It is also contended that the Court below has failed to appreciate the provisions of Section 22 and other provisions of the Bombay Public Trust Act, 1950. It is contended that the Court below has failed to appreciate that the change report arise on account of the process of unification, which has been spread over all over the world and there have been unification of the church as stated in detailed in the ground. It is also contended that such unification and the decision to form CNI is taken by the Church of Brethren after due deliberations and discussion at various levels and minutes of such meeting of the Governing body have been recorded, the Resolutions passed by the local body of Church of Brethren have been recorded and it has also been signed by the office bearers, Ministers, Licentiate Preachers and Deacons of the Church of Brethren. It is, therefore, contended that the Court below has failed to approve merger of the Church of FDCB and the formation of CNI with Church of Brethren, USA. It is, therefore, contended that the Court below has failed to appreciate the ratio laid down in case of In re Faraker (1912) 2 Ch. 488 (495), which were sited before the Court below and the provisions of the Bombay Public Trust Act, particularly, Section 2(8), 2(13), 2(18), 10, 11, 12 and 13 of the said Act. It is contended that the Court below has failed to appreciate the Resolution nominating CNI as the successor entity of the Society and the dissolution/merger of the Society are in accordance with the Rules and Regulations and the provisions of Sections 12 and 13 of the Societies Registration Act, 1860. Therefore, it is legal and valid. It is contended that the Court below has failed to appreciate that the 'trust' has an obligation annexed with the ownership of the property would continue but would not be known by the name of Church of North India Gujarat Diocese if the change is granted. It will also not be resulting in misappropriation of the funds or a breach of trust. It is further contended that the Court below has erred in holding that that the amalgamation can only be made in the manner provided under Section 50 of the Bombay Public Trust Act. It is contended that Section 50 of the said Act is empowering provision enabling the Charity Commissioner to amalgamate trust in the interest of proper management and administration. However, whether the instrument of the trust itself provides for amalgamation, recourse to Section 50 of the said Act would not be necessary and change report under Section 22 of the said Act can be considered. It is, therefore, contended that even after the change report, the FDCB would continue in PTR though for all practical purpose and only name has to be changed of merger. It is also contended that the Court below has failed to appreciate that the delisting of the properties is essentially a procedural matter of merging the PRT for due and proper administration of the trusts and it does not amount of alienation. It is, therefore, submitted that the Court below has failed to appreciate that the objections if accepted, impinge upon the fundamental rights guaranteed under Article 26 of the Constitution of India granting every religious denomination a right to manage its own affairs in matters of religion. It is, therefore, contended that the decision of unification by merging of six churches so as to form one church is ecclesiastical matter and it is a matter of religion and faith for the followers of a particular religion and the Court should not have accepted any such objections. It is, therefore, contended that the jurisdiction of the Charity Commissioner does not extend to such matters of religion as fundamentally decision blending or unification of the church and even after the unification or merger, the operation of the Brethren Church would be carried out in the same manner. It is contended that the Court below has failed to appreciate that the respondent/objectors were the members of the Society and also the member of the office bearers of the Managing Committee or others religion denomination and they have resolved and accepted merger with NIC and the Resolutions have been passed. It is, therefore, contended that they would be bound by the decisions, which has been taken at various meetings and now they have no locus or reason to challenge and/or to go back on their decision once Resolutions have been passed and accepted. It is, therefore, contended that such objections are taken belatedly only for the purpose of corporeal gain and are malafide. It is further contended that even after the formation of CNI, they have participated in the meeting of Gujarat Diocese of CNI and have acted as as office bearers and the property managed and administered by CNI Gujarat Diocese and taxes are also paid. Therefore, there is no priest functioning or administering the religious ceremony's and rituals but the Priest of CNI are administering the religious ceremonies and rituals since 1970. Therefore, the objections cannot be accepted at such belated stage. It is also contended that the Court below has failed to appreciate that not allowing the change report would frustrate the collective wish of the followers of Church of Brethren and members of FDCB and transfer of property is a consequential and it would not amount to divert of corpus without following due process of law. It is, therefore, contended that the present Appeal may be allowed.

(3.) Affidavit-in-reply has been filed by the respondent in Civil Application No.4701/2009 in First Appeal No.1536/2009, wherein it has been contended that FDCB is a Minority regional denomination of protestant Christian faith, which is duly registered as a religious Society bearing No.1202/1944 and is duly registered as public trust under th Bombay Public Trusts Act, 1950 bearing PTR NO.E/643/1690/BHARUCH. It is, therefore, contended that the Society is having its own Memorandum of Association, which is also the trust deed. It is contended that the properties of this religious denomination consists mainly on the Churches, cemeteries and Pastor houses. It is contended that accordingly DCB, Bharuch as per the fundamental rights guaranteed under Articles 25 & 26 of the Constitution of India has managed and it has every right to continue to manage its affairs. It is contended that in view of landmark judgment of the Hon'ble Apex Court regarding the fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India, it give right to religious denomination with respect to their management and administration, are noteworthy in order to obtain right and rights guaranteed as fundamental rights cannot be waived or forfeited and it cannot be snatched away from management and administration of its properties and vest if any other body. It is, therefore, contended that it would otherwise amount to violation of Constitution of India and provisions and it would infringe such fundamental rights guaranteed under the Constitution of India. Reference is made to the judgment in case of Ratilal Panachand Gandhi V. The State of Bombay & Ors., 1954 AIR(SC) 388.