BHUPENDRA RASIKLAL KAPADIA Vs. JAYANTILAL VRAJLAL SHAH

JUDGEMENT

(1.) The learned Judges also held that the suit property namely S. No. 228 was not the property of the plaintiffs predecessor and therefore cannot be the property of the plaintiff also. Here also the learned Judges have clearly gone wrong. They have relied upon two judgments of M. U. Shah. One is the case of Bapalal Godadbhai Kothari v. Charity Commissioner 7 G. L. R. 825 and the other is the case of Lallubhai v. Vijbhushanlal 8 G. L. R. 42. These judgments can be said to be no good law. Prior to these judgments there was holding the field a single Judges judgment. It is the case of Ishwarlal Nanalal v. Ghanchi Chimanlal R. Indian Law Reports 1963 (Vol. 4) Gujarat 767 which was delivered by late. Mr. Justice Mody There was one earlier judgment of J. M. Shelat J. in the case of Kuberbhai Shivdas v. Mahant Purshottamdas Kalyandas G. L. R. page 564 which held that the enquiry held by the Deputy or the Charity Commissioner under sec. 19 was by no means an administrative or an executive enquiry. This judgment of Justice J. M. Shelat also dealt with the scope of sec. 21 and 22 of the Act. The learned Judge stated in the course of his judgment as follows :

(2.) The sum and substance of what has been stated above is this that it is the settled view of the Division Bench of this court that once a finding about a particular property being the property of the public trust is reached and an entry is made pursuant thereto in the register kept under sec. 19 of the Act the said entry becomes conclusive unless it is varied by the subsequent order under sec. 22-A of the Act. The present defendant challenged the inclusion of this property S. No. 228 as the property belonging to the plaintiffs predecessors-Sajana Trust He wanted to get that point adjudicated upon in this suit which it was not open to the civil court to do. Then the defendant in the course of the protracted hearing of this suit before the learned trial Judge had given an application Ex. 11 to the learned Judge with a request to stay the suit to that he may make an application to the competent authority under the Bombay Public Trust Act in order to get the property registered in the name of his trust. Nothing of the sort was done by him thereafter and he went to the trial. So the finding stands that the property was the property of the trustees of the Sajana Trust the predecessor-in-title of the plaintiff and that those trustees had validly sold that property to the plaintiff as per the sale deed Ex. 67 dated 12-12-67 and as the said sale deed had been effected by the trustees after seeking the Charity Commissioners permission Ex. 94 under sec. 36 of the Act the said sale-deed was absolutely valid and it is not open to the defendant to challenge that entry existing in the public register at the relevant time.

(3.) Mr. Vyas had tried to raise one point of law by invoking sec. 55 of the Bombay Public Trusts Act. In his submission the suit could not proceed without a notice being issued to the Charity Commissioner under that provision. Such a notice under that section is necessary only when it appears to the court that any question affecting the public religious or charitable purpose was involved in the suit. Here there is no question of affecting a public religious trust on the contrary what was acknowledged to be a public trust property is being the subject matter of the judicial pronouncement already recorded by a competent authority and it was sought to be upheld for want of any competent challenge to the finding. So I say that no question affecting a public religious or charitable purpose was involved in the suit In my view therefore sec. 56-B has no application. If the defendant so thinks fit he may still have recourse to sec. 22-A of the Bombay Public Trusts Act.