GURUSIDDAPPA TIPANNA MUGERI Vs. MIRAJ EDUCATION SOCIETY

JUDGEMENT

(1.) THE suit giving rise to this revision application was filed by opponent No. 1, Miraj Education Society, through its President, Dr. Dattatraya Shivram Bhadbhade (hereafter called the plaintiff) against the petitioner and opponent No. 2 (hereinafter referred to as defendants Nos. 1 and 2 respectively) for a declaration that the plaintiff is entitled to recover a sum of Rs. 25,000 kept in fixed deposit by the deceased, Tippanna Satappa Mugeri in the Belgaum Bank. Defendant No. 1 is the son and defendant No. 2 is the widow of the deceased. The material facts may be briefly stated as follows: The deceased, Tippanna Satappa Mugeri had kept a sum of Rs. 15,000 in the Miraj Branch of the Belgaum Bank on July 9, 1956, and another sum of Rs. 10,000 on May 7, 1956, in the Jayasingpur Branch of the said Bank, as fixed deposits. The period of these fixed deposits was for one year. Tippanna was ailing and was taking treatment in a hospital at Miraj under the guidance of one Dr. Gosavi. On August 10, 1.956, Tippanna sent an application through post to the Belgaum Bank stating that he had donated the amounts in the aforesaid fixed deposits in favour of the plaintiff. The same day, he handed over the receipts of the fixed deposits to the plaintiff. On August 11, 1956, the plaintiff wrote two letters, one to the Miraj Branch and the other to the Jayasingpur Branch of the Belgaum Bank, stating that the sums in those Branches were donated to them (the plaintiff) and demanding the return of the said amounts under the said fixed deposits. On August 24, 1956, the plaintiff wrote another letter to the Head Office at Belgaum in that respect. Tippanna died on August 14, 1956, at Belgaum. It appears that prior to his death, a telegram was received by the Belgaum Bank purporting to be in the name of Tippanna in which it was stated that the donation was revoked by Tippanna. The defendants made an application to the District Court, Belgaum, for a succession certificate and obtained the same on September 18, 1957. On November 5, 1957, the plaintiff gave a notice to the Belgaum Bank calling upon the latter to pay the sums under the said deposits. On November 9, 1957, the Bank informed the plaintiff that the latter must obtain a declaration from a competent Court that they are the owners of the fixed deposits. Accordingly, the plaintiff filed a suit on November 25, 1957, for a declaration that they are the owners of the amounts under the two sets of fixed deposits.

(2.) SEVERAL defences were raised on behalf of the defendants and as many as 14 issues were framed covering the contentions arising out of the pleadings. Issues Nos. 1 to 4 were treated as preliminary issues. Those issues were as follows: 1. Whether this Court has no jurisdiction to try the suit as contended by the defendants in paragraph 7 of their written statement? 2. Whether permission in writing of the Charity Commissioner is necessary to the institution of this suit as contended by the defendants in paragraph 9 of their written statement?

(3.) WHETHER the Charity Commissioner is a necessary party to the suit?. The trial Court held that it had jurisdiction to try the suit. It further held that permission of the Charity Commissioner was not necessary for the institution of the suit. It also held that the Charity Commissioner was not a necessary party to the suit. On issue No. 3, it found that the suit for declaration was tenable. Consequently, it directed that the/suit should be proceeded with. It is against these findings that defendant No. 1 has come up in revision. 3. Mr. Sukthankar for the petitioner, contended in the first place that the civil Court had no jurisdiction to decide the question involved in the suit inasmuch as exclusive jurisdiction is vested in the Deputy Charity Commissioner or Assistant Charity Commissioner in the first instance and the Charity Commissioner in appeal under Section 70 and the Court under Section 72 of the Bombay Public Trusts Act (hereinafter referred to as the Act of 1950). In that connection he relied upon the provisions of Sections 79 and 80 of the Act. Secondly, he argued that assuming that the civil Court has jurisdiction to decide the suit, the consent of the Charity Commissioner not having been obtained, as required by Section 50 of the Act, the suit is had and therefore, will have to be thrown out. 4. I will deal with these contentions in the same order in which they were argued before me by Mr. Sukthankar. Firstly, I will deal with the argument based on Sections 79 and 80 of the Act. Section 79 of the Act provides: (1) Any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act. (2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the court on application or of the High Court in appeal, be final and conclusive. Section 80 is complementary to Section 79 of the Act and it runs thus: Save as expressly provided in this Act, no civil court shall have jurisdiction to decide or deal with any question, which is by or under this Act to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive. In order to appreciate the scope and ambit of Sections 79 and 80 of the Act, it is necessary to refer to certain other provisions of the Act viz., Sections 18, 19, 20, 21, 70 and 72. Sections 18 to 21 of the Act adumbrate a scheme tinder which the jurisdiction, to decide certain matters is vested in the charity organization. Section 18(7) relates to the registration of public trusts and in effect it provides that it shall be the duty of the, trustee of a public trust to make an application for the registration of the public trust. It is not necessary to set out the remaining sub -sections of Section 18 of the Act. Section 19 deals with the enquiry, which is required to be made by the Deputy or Assistant Charity Commissioner in the matter of registration. The enquiry is to be made in respect of the following questions: (i) Whether a trust exists and whether such trust is a public trust; (ii) Whether any property is the property of such trust; (iii) Whether the whole or any substantial portion of the subject -matter of the trust is situate within his jurisdiction; (iv) The names and addresses of the trustees and manager of such trust; (v) The mode of succession to the office of the trustee of such trust; (vi) The origin, nature and object of such trust; (vii) The amount of gross average annual income and expenditure of such trust, and (viii) any other particulars as may be prescribed under Sub -section (5) of Section 18. Section 20 provides that on completion of the inquiry, the Deputy or Assistant Charity Commissioner shall record his findings with the reasons therefor as to the matters mentioned in the said section, and may make an order for the payment of the registration fee. Section 21 incorporates consequential provisions and lays down that appropriate entries be made in the register in accordance with the findings recorded under Section 20 of the Act. Section 70 provides for appeals from the orders of the Deputy or Assistant Charity Commissioner to the Charity Commissioner including an order under Section 20 of the Act. Section 72 provides for an application to be made to the District Court from the order passed by the Charity Commissioner.