CHANDRABHAN CHUNNILAL GOUR Vs. SHRAWAN KUMAR KHUNNOLAL GOUR

JUDGEMENT

(1.) This Revision Application has been filed against the finding recorded by the trial Court on the issue regarding the validity of the transaction of sale between the plaintiff and defendant No. 2. The facts leading to the present Revision Application shortly stated are as follows:

(2.) Defendant resisted the suit by raising several contentions with which we are not concerned in this Revision Application, The defendant No. 1 however denies that Chuniyabai had bequeathed the suit house to defendant No. 2 and that the latter had become full owner on her death. He claims that he came to reside in the house in 1960, at the instance of Chhabile Bhagat, the husband of Chuniyabai, to look after both of them in their old age. He says that he has been residing in the suit house openly and continuously "as a heir apparent" of Chhabile Bhagat since 1960 under the direction and wishes of the latter in his own right, In short, defendant No. 1 has set up his own title to the suit house. Defendant No. 1 further contends that the sale of the suit house by defendant No. 2 in favour of plaintiff is not valid in law. In this connection, inter alia, he contended that defendant No. 2 could not have sold the suit house to plaintiff without permission of the competent authority under the Act and hence, the alleged title of defendant No. 2 in respect of the suit house was never legal and perfect. It appears that in view of the contention taken by the defendant No. 1, the plaintiff amended his plaint and submitted that the sale has been effected by the defendant No. 2 in his favour with the permission and approval of the Charity Commissioner, which was obtained on 25-4-1974. In his turn, defendant No. 1 further contended that the alleged ex post facto sanction granted by the Charity Com missioner was without jurisdiction and did not confer any right, title or interest in the plaintiff. In short, therefore, from these pleadings it would appear that when defendant No. 2 sold the suit house to plaintiff on 26-9-1972, it had not obtained any sanction as required under Section 36 of the Act, but obtained it on 25-4-1974 after the sale-deed had been registered,

(3.) On these pleadings several issues are framed by the trial Court and issues Nos. 9 and 10 are as follows:- 9. Whether the defendant No. 1 proves that the sale of suit property by defendant No. 2 in favour of plaintiff is illegal and void ab initio? 10. Whether the plaintiff proves that the pleas raised by defendant No. 1 regarding sanction of Charity Commissioner to suit transaction were finally and conclusively decided by Charity Commissioner under Bombay Public Trusts Act and hence this Court has no jurisdiction to decide the matter as averred in para 17 of the plaint? It appears that these two issues were tried as preliminary issues. The learned trial Judge held that issue No. 10 would be required to be answered in the light of other issues and hence it would be premature to answer it, on the basis of the order passed by the Charity Commissioner, He, therefore, did not record any finding on this issue. However, with regard to issue No. 9 he held that the transaction was not void as the plaintiff had obtained ex post facto sanction from the Charity Commissioner. The learned trial Judge appears to be of the view that the said sanction given by the Charity Commissioner could not be challenged in the suit as defendant No. 1 had not made a grievance about it, in appeal against it and since the Charity Commissioner, who was competent to grant sanction had done so after taking into account all the factors. In short, therefore, the learned trial Judge held the ex post facto sanction as valid sanction within the meaning of Section 36 of the Act. It is against this finding of the learned trial Judge that the present Revision Application has been filed.