MARTAND PANDHARINATH HARKARE Vs. CHARITY COMMISSIONER

JUDGEMENT

(1.) THIS is an appeal by the original applicant who had filed an application claiming that the property referred to in the application was his private property and was not governed by the provisions of the Bombay Public Trusts Act, against the order passed by the learned District Judge, Poona, by which his application under Section 72 of that Act against the order of the Charity Commissioner was dismissed with costs.

(2.) IT appears that one Yashodabai and her sister Haribai had inherited certain immoveable properties from their maternal grand father Keshav Mahadeo Deshpande. including a house. In a portion of this house they constructed a small temple in about 1915 and installed an idol of Shri Datta. In order that some arrangement may be made for the purpose of the worship of the deity these two sisters executed a Danpatra on February 22, 1918, in favour of one Pandurang Balwant Kulkarni. This Danpatra does not seem to have been produced in the present case and, therefore, it is difficult to say as to whether the two sisters had made a gift of their properties to Pandurang Balwant Kulkarni in consideration of his performing the worship of the deity. Pandurang Kulkarni, however, did not accept the gift and the gift deed (Danpatra) passed in his favour was treated as cancelled. The properties thereafter continued to be in the possession of the two sisters till 1931. They looked after the properties as also the worship of the deity they had installed in their house. On August 29, 1931, it appears, the two sisters once again executed another Danpatra in favour of 'Datta Mandir Sansthan represented by its permanent Vahiwatdar Krishnanath Gujabuva'. This Danpatra is produced in this case and is exh. 17. The recitals in this Danpatra show that whatever right, title and interest Krishnanath Gujabuva acquired under the Danpatra were acquired by him on behalf of Datta Mandir Sansthan in his capacity of a permanent Vahiwatdar. After reciting that a prior Danpatra had been executed in 1913, which was later cancelled because the donee under that deed declined to accept the gift the two sisters stated in that Danpatra that they were confident that Krishnanath Gujabuva would perform the worship of the deity regularly and in the best manner and that on that account they were making a gift of the properties to the temple. In the latter part of this Danpatra, however, certain recitals appear to have been made which show that the original intention of the two sisters that the properties should be delivered in the possession of Krishnanath Gujabuva as a permanent Vahiwatdar after making a gift of them to Datta Mandir Sansthan. was considerably modified and it was stated that Krishnanath Gujabuva should enjoy the properties from generation to generation. The Danpatra further recites that the properties were of the ownership of the deity and of Krishnanath Gujabuva and finally the document recites that the two sisters had thereafter no interest whatever in the properties.

(3.) SOME time after the execution of this Danpatra, which is exh. 16 in the case, one of the sisters Haribai died. It appears that the other sister Yeshodabai executed one more document described as 'Vahiwat Hakkache Patra' in favour of one Vishnu Shridhar Bhalerao. In this document it was stated that Krishnanath Gujabuva in whose favour Danpatra exh. 17 was executed did not look after the property and relinquished its management and that since then Yeshodabai and her sister Haribai (during her life time) were looking after the property. By this document Yeshodabai appointed Vishnu Shridhar Bhalerao as a Vabiwatdar with power to nominate his successor in the event of his death. This document, however, is not entitled as 'Danpatra' like the other two earlier documents and purports only to be a document transferring the right to manage the property. This document is exh. 18 in the case. Martand, the appellant, it seems, obtained besides the Danpatra exh. 16 another Danpatra from Krishna -nath Gujabuva on December 2, 1938, presumably with a view to perfect his title to the properties. According to this document, whatever right Krishna -nath Gujabuva had acquired under the Danpatra exh. 17 was transferred to Martand Pandharinath Harkare. This document, it may be noted, was executed by Datta Mandir represented by Krishnanath Gujabuva who styled himself as the permanent Vahiwatdar.