BAI ANNAPURNA SHANTILAL Vs. KANTILAL LALJIBHAI

JUDGEMENT

(1.) THESE two appeals arise out of the order passed by the learned Extra Assistant Judge, Baroda in Misc. Civil Applications Nos. 138 and 139 of 1967 against the orders passed in Revision Applications Nos. 13/67 and 94 of 1967 passed by the learned Joint Charity Commissioner.

(2.) THE facts leading to these appeals briefly stated are as under : - Narayandev Maharaj Mandir at Varnama, Ta. Baroda is a public trust registered under No. A 19 (Baroda). The application for its registeration was made in 1952 by Bai Nathi widow of Fulji Nathuram and Laljibhai Nagjidhai who has been shown in the application as two trustees of that trust. The mode of succession to the trusteeship shown by these two trustees in the application was "as appointed by the village people." The Assistant Charity Commissioner registered the trust on 7th April, 1953 and held inter alia that these two persons were the trustees and that the mode of succession was shown in the application. Laljibhai Nagjibhai died on 23 -12 -1960 and in his place the name of his son Kantilal Laljibhai was entered by the Change Report No.254 of 1961. It was shown in this change report that he was appointed by the village people. Thereafter on 28th May 1963 Bai Nathi died A dispute arose on her death regarding the vacancy caused by her death. Change Report No.585 of 1963 was filed on 17 -8 -1963 for entering the name of Bai Annapurna who is daughter of Nathi's brother as having been appointed by the village people as mode of succession Kantilal son of Laljibhai opposed this change report contending that the village people had appointed him as trustee in place of Bai Nathi and so he was the sole trustee of the trust. On 11 -4 -1966, the Assistant Charity Commissioner granted this change report. Against the order of the Assistant Charity Commissioner passed on this change report, Kantilal filed an appeal to the Charity Commissioner being Appeal No.27/66. This appeal was rejected by the learned Charity Commissioner on 9 -5 -1967. He held that Bai Annapurna is the only appointed trustee as per the mode of succession recorded in the registration inquiry. On 21 -7 -1966, an application under Section 22 -A being Change Inquiry No.296 of 1966 was made by original applications Nos. 2 and 3 who are the brother and mother respectively of Kantilal Laljibhai for a further inquiry regarding the mode of succession to trusteeship. Their case was that the mode of succession as stated by Bai Nathi and Laljibhai was not correctly shown. They went to the extent of alleging fraud on the part of these trustees in getting mode of succession wrongly recorded. Their contention was that the mode of succession was in fact hereditary in the family of Narbheram - Appicant No.1 who was also in this family applied for joining him in the above mentioned application. He was ordered to be joined as an applicant. He also alleged fraud on the part of the two trustees, who got this trust registered. They produced certain documents showing that in the past the mode of succession was held to be hereditary and not as appointed by the village people. During the pendency of this application under Section 22 -A the original applicants filed application under Section 70 -A on 23rd February. 1967 to the Charity Commissioner praying that the Charity Commissioner should revise the order passed under Section 19 regarding the mode of succession as important evidence regarding the mode of succession was not placed before the Assistant Charity Commissioner when this trust was got registered. On 30 -6 - 1967 the Assistant Charity Commissioner rejected the application under Section 22 -A on the preliminary issue of jurisdiction holding that as the mode of succession had already been decided by his predecessor in 1958 this matter could not be reopened on mere application of the interested parties. Against the said order passed by the Assistant Charity Commissioner an appeal No.94/67 was preferred before the Charity Commissioner, Both the appeals and the revision application were heard together by the learned Joint Charity Commissioner. From the perusal of the documents prima face, the learned Joint Charity Commissioner was of the view that the mode of succession to trusteeship was hereditary and not as appointed by village people. In his opinion, both under Sections 22 -A and 70 -A of the Public Trusts Act, he was competent to hold a fresh inquiry with regard to the mode of succession in the light of the documents produced before him. He, therefore, allowed the appeal and the revision application and sent back the papers to the Assistant Charity Commissioner for holding a fresh inquiry with regard to the mode of successions after cancelling his order in that connection. Against the order of the Charity Commissioner passed in the revision application, as well as the appeal, the applications were preferred in the District Court. Boroda under Section 72 of the Act, which were heard by the learned Extra Assistant Judge who dismissed the said application and confirmed the order of the Joint Charity Commissioner. Against that order the present two appeals have been preferred.

(3.) IN respect of his first submission that as the particular relating to the public trust was already the subject -matter of the inquiry under Section 19 no further inquiry could be made, Mr. Patel relied on the case of Shukla Ramanujacharya Govindacharya v. N.N. Shah, (1972) 13 Guj LR 493 wherein it was observed that