ERUCH MERWAN IRANI Vs. SARDAR SORABJI RUTTONJI PATEL

JUDGEMENT

(1.) THESE appeals are filed by the original applicants against the common judgment and order delivered by the District Judge, Pune in Misc. Civil Appeal No. 200 of 1989 and Misc. Application Nos. 382, 383 and 384, all of 1989 preferred by these appellants before him whereby the said appeals were dismissed confirming the common judgment and order dated 16-5-1989 delivered by the Joint Charity Commissioner, Pune Region, Pune in Revision Application Nos. 12 of 1987, 21 of 1987 and 18 of 1988 and Application No. 11 of 1987.

(2.) THE brief background leading to the present appeals is as follows: one Sorabjee Ratanjee Patel, a resident of Pune, constructed a firm temple and community hall for the Parsees called as Patel Hall in his property situated at Nana Peth in Pune in the year 1824. He also constructed a tower of silence in his property away from the above property at Gultekadi. One Dastur Jamshedji Edulji of Bombay was appointed as high Priest for the performance of religious rites in the said Fire Temple and Tower of Silence as per the Zoroastrian tenets. In the year 1843 sacred fire called Atesh Adaran was installed in the Fire Temple. The said Fire Temple was continued in the charge of and absolute dominion of Dastur Jamshedji Edulji for superintendence, management and performance of religious rites. On 29th August, 1843 the founder of the Trust executed a Gift Deed in Gujarati called Bakshispatra transferring two properties in the name of Dastur Nausherwanji Jamshedji i. e. the son of aforesaid Jamshedji Edulji Dastur. The income of the said properties was to be applied for the management of the fire temple, Patel hall and tower of silence. It appears that on 19-4-1846 Jamshedji Edulji Dastur died. On 23rd August 1852 the original founder Shri S. R. Patel executed a Will in favour of Nausherwanji Jamshedji Dastur and thereafter he died on 3rd September 1852. The Gift Deed of 1843 and the copy of the Will are not produced on record. It appears that under the said Will Nausherwanji Dastur was entrusted with the responsibility not only of performing religious rites and managing the properties gifted in the year 1843 but also was given power to appoint his successors and heirs to look after the affairs of the Fire Temple, Tower of Silence, Hall and the properties gifted by the Donor.

(3.) ON 2nd July, 1884, Nausherwanji Dastur executed a document called Trust Deed a copy whereof is annexed of the Appeal paper-book. In the said deed reference is made to the construction of the Fire Temple, Hall and the Tower of silence by founder S. R. Patel in the year 1824, Gift Deed of 1843 and Will dated 23rd August 1852. This last document of 2nd July 1884 is the registered document registered in the Adalat (Court) of Poona. It appears that survey numbers to the lands were given for the first time in Poona in the year 1889. Prior to that lands in Pune were given Perde or Bakkal numbers. In the year 1889 survey numbers to the properties in question with which we are concerned were given as 177 and 178. In the year 1930, for the first time, Record of Rights of the properties were introduced in the City of Pune in the form of Registers of village Form Nos. 6 and 7/12. In the year 1936 City Survey (C. T. S.) numbers were introduced and accordingly Survey No. 177 was given C. T. S. No. 613 and Survey No. 178 was given C. T. S. No. 612. In the mean time the Trust property as well as the Fire Temple and the Patel hall were being managed by the successors of Nausherwanji Dastur who is said to have died in the year 1884 itself after the execution of Trust deed dated 2-7-1884. As per the Deed of 1884 two properties were gifted in 1843 by S. R. Patel to the then Trustee Nausherwanji Dastur whose income was to the applied for the affairs of the trust. From the recital in the said Deed of 1884 it appears that Nausherwanji and his brothers had contributed to the expenses of the Trust out of the income of their personal properties and had rebuilt the Community Hall in the year 1865, and the Fire Temple in the year 1877. Both these newly constructed structures were bigger and larger in size than the original structures which were constructed by the said founder S. R. Patel.