RAMLAL KALURAM MISHRA Vs. CHARITY COMMISSIONER

JUDGEMENT

(1.) IN 1924 the appellant built a temple called Shri Badrinarayan Mandir at the village Sirsode (Bahadurpur), Taluka Parola, District East Khandesh, and installed an idol of Shri Badrinarayan in it. The temple was built on one of his lands with his own money. On May 27, 1927, he made an endowment of some immovable and movable properties for the expenses and management of the temple and also appointed some trustees. A deed of trust was executed by him in that behalf.

(2.) ON February 20, 1942, the appellant applied to the First Class Sub -Judge, Registrar, East Khandesh, requesting that a form prescribed under Section 5 of the Bombay Public Trusts Registration Act, 1935, be sent to him so that he might fill it up and forward the same to the Registrar. Upon this application the learned Sub -Judge passed the following order on February 21, 1942: - C.O.C. to report whether trust is registered. If it is not registered, inform the applicant of it and to apply to get it registered. Also call upon the trustees to get the trust registered by sending notice. On March 7, 1942, the learned Sub -Judge directed that notice be issued regarding this application. Then on some subsequent date (it is not clear on which date) the learned Sub -Judge passed the following order: - From the affidavit of Pralhad Vaidya I am satisfied that Badrinarayan Temple is not a public trust. This notice and the affidavit and inquiry papers are therefore filed. After the Bombay Public Trusts Act, 1950, came into force, the appellant again made an application on May 20, 1952, to the Assistant Charity Commissioner appointed under the said Act. He filled up the necessary form, but made it clear that he was sending the form duly filled in by him under Section 18 without prejudice to his right to contend that Shri Badrinarayan Temple was a private trust and, therefore, the provisions of the Bombay Public Trusts Act, 1950, did not apply to such private trust. The enquiry was conducted by the Assistant Charity Commissioner upon this application, under Section 19 of the Act, and on May 3, 1954, the Assistant Charity Commissioner held that the temple of Shri Badrinarayan was a public trust and, therefore, it had to be registered under the provisions of the Bombay Public Trusts Act. Thereafter the appellant prefered an appeal to the Charity Commissioner under Section 70(1) of the Act. Before the Charity Commissioner two points were raised. First, it was contended that, in view of the earlier decision recorded by the Sub -Judge, Registrar under the Act of 1935, the authorities under the Bombay Public Trusts Act of 1950 were precluded from again going into the question as to whether the temple of Shri Badrinarayan was or was not a public trust. Secondly, it was contended that, in view of the deed of trust, it was clear that the temple of Shri Badrinarayan was not a public but a private trust. The Charity Commissioner considered these contentions and held that, despite the finding made by the Sub -Judge, Registrar under the old Act of 1935, he could go into the question as to whether the temple was a public trust or not, and make his finding thereon. On merits the learned Charity Commissioner affirmed the finding of the Assistant Charity Commissioner, holding that the deed of trust made it clear that the temple in question was a public trust. Accordingly, the appeal was dismissed on October 21, 1954.

(3.) MR . Gupte, who appears for the appellant, has first contended that, inasmuch as the present proceedings had been started as far back as in the year 1952, it is the unamended Section 72 that would apply, and if that were so, the learned District Judge before whom the application under Section 72 came up for hearing had to take evidence before making his own finding on the question raised before him. Section 72(2), as it stood before the amendment, so far as material, reads as follows: - The court after taking such evidence as it thinks necessary, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. It was by Act No. LIX of 1954 that this sub -section was amended, and after the amendment the sub -section read as follows: - The court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. Without considering as to whether the unamended Section 72(2) applied or not, I will assume that the contention made by Mr. Gupte in this behalf is correct. But then, is it a case where the learned District Judge had been asked to consider the evidence which was tried to he adduced on behalf of the appellant before him and he rejected it without giving proper reasons for its rejection? It seems to me that, when the application was filed before the learned District Judge under Section 72, by exh. 11 the appellant produced as many as 20 documents on March 25, 1955. On the next adjourned date, that is to say on April 16, 1955, these documents were shown to the Government Pleader who appeared on behalf of the Charity Commissioner, and he stated below exh. 11 that certified copies of the documents produced by the appellant be exhibited. Then on June 20, 1955, issues were framed by the learned District Judge and the case was adjourned to July 21, 1955, for list of witnesses. The roznama of the ease shows that on July 21, 1955, the parties did not put in any list of witnesses. Thereafter, when the hearing commenced, such of the documents as were certified copies to which the learned Government Pleader did not raise any objection were allowed to go in evidence and were duly exhibited. Therefore, from the roznama and from the manner in which the hearing was conducted before the learned District Judge, it seems to me that at no stage of the trial was there any application made before the learned District Judge that the appellant was producing some more documents or other evidence and that the learned District Judge should consider that application and allow the documents or the other evidence to be tendered by the appellant. Therefore, this is not a case where it could be said that the learned District Judge rejected any evidence that was sought to be tendered by the appellant on his behalf. Further, even under the unamended section, it was only when the learned District Judge found it necessary to take any evidence that the parties could be called upon to produce that evidence, if available, at the trial. Thus it seems to me that under the unamended section, it was the requirement of the Court, and if the Court found that any evidence was necessary, then the Court had to record that evidence at the trial. Therefore, it seems to me there is no substance in the contention raised by Mr. Gupte in this behalf.