MARTAND PANDHARINATH HARKARE Vs. CHARITY COMMISSIONER, BOMBAY

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 referred to. Where a person makes an application to the Charity Commissioner seeking exemption from the requirement of Bombay Public Trusts Act, 1950, as to the registration of an institution which he claims as a private property of his own, the Charity Commissioner in course of an independent enquiry into the matter held by him, cannot call upon such person to prove that the institution was not a public trust.Public Trusts Act, against the order passed by the learned District Judge, Poona, by which his application under s. 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 Desh pande 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 he made for the purpose of the worship of the deity these two sisters executed a Danpatra on February 22, 1918, in favour of one Pan durang 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 1918, 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.) It appears that after the Danpatra exh. 17 was executed by the two sisters Krishnanath Gujabuva looked after the properties for some time, but eventually he also left the management of the properties and also the worship of the deity. The two sisters accordingly, particularly in view of their advancing age, were again compelled to execute another Danpatra on August 1, 1936, in favour of the appellant Martand Pandhiranath Harkare. The title of this Danpatra is entirely different from the title which appeared on the earlier Danpatra exh. 17. This Danpatra is executed in favour not of "Datta Mandir Sansthan represented by its permanent Vahiwatdar..." as was the case in the. earlier Danpatra exh. 17, but in favour of Martand Pandharinath Harkare in his own individual capacity. In this Danpatra the two sisters expressed an intention to make a permanent arrangement in respect of the wor- ship of the deity in their house and the properties which they had set apart for the purpose of meeting the expenses of the deity. Thev stated that they were executing a gift deed of the properties in favour of Martand Pandharinath Harkare and appointing the latter as a permanent Vahiwatdar. They also stated