High Court
Legal Reasoning
1 sa 442.23 with sa 443.23IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 442 OF 2023Ashok Nagorao Jadhav.. AppellantVersusJanta Shikshan Prasarak MandalThrough its General SecretaryNeelabai Babanrao Jadhav.. RespondentWITHSECOND APPEAL NO. 443 OF 2023Ashok Nagorao Jadhav.. AppellantVersusJanta Shikshan Prasarak MandalThrough its General SecretaryNeelabai Babanrao Jadhav.. RespondentShri Deelip J. Choudhary, Advocate for the Appellant in both matters.Shri V. D. Salunke, Advocate for the Respondent – Sole in both matters.CORAM :SHAILESH P. BRAHME, J. DATE :23RD JULY, 2025.FINAL ORDER :.Heard both sides finally.2.Defendant in both suits, who suffered judgment and decreeof declaration and injunction passed by the lower Appellate 2 sa 442.23 with sa 443.23Court reversing the judgment and decree passed by the TrialCourt, is the appellant before this Court. Both the suits andappeals arising out of them were conducted simultaneously,albeit, decided by distinct judgments and decrees. Parties,material facts and the material are identical. Hence bothappeals are heard together and by common order, I am disposingof them.3.The issues involved in both appeals and the substantialquestions of law pressed into service are identical. What isdifferent in both suits is subject matter and date of purchase. Forthe sake of convenience I propose to refer Appellant asdefendant – Ashok and respondent as plaintiff - trust. Thesource of appeals is given hereinbelow.Sr.No.Second Appeal No. 442of 2023Second Appeal No. 443 of20231.R.C.A. No. 19 of 2017Judgment dated 03.04.2023R.C.A. No. 20 of 2017Judgment dated 03.04.20232.R.C.S. No. 66 of 2008Judgment dated 03.05.2017R.C.S. No. 67 of 2008Judgment dated 03.05.20173.Land Sy. No. 10/1 adm.84R purchased vide saledeed dated 10.08.1987Land Sy. No. 7/C/1 adm. 60Rpurchased vide sale deeddated 27.06.19894.Exhibit No. 91.Exhibit No. 96.4.Plaintiff – trust is registered under the provisions of theMaharashtra Public Trust Act (hereinafter referred as to the“Act” for the sake of brevity and convenience). It runs a school in 3 sa 442.23 with sa 443.23the name of Nrusinha Vidya Mandir. Late Mr. Nagorao Jadhavwas founder President of the trust. He was alive upto02.08.2000. Defendant – Ashok is his elder son and younger sonShivaji are at loggerheads. During life time of Nagorao Jadhav,suit lands are purchased from one Tejrao Govindrao Jadhav bydistinct sale deeds, which are referred above. Ashok and Shivajihave rival claims to the office of the trust. They have resorted tovarious proceedings. However, for deciding the presentcontroversy, it is not necessary to refer their disputes in detail.5.In both suits plaintiff trust has claimed declaration andinjunction on the premise that suit lands were purchased byregistered sale deeds in the name of the trust. It was notexclusive property of founder member Mr. Nagorao Jadhav. Thesuit lands are being utilized for the school. Taking disadvantageof entries of Nagorao Jadhav in the 7/12 extracts, defendant –Ashok started claiming the suit lands as exclusive properties. InR.C.S. No. 66 of 2008 suit land i. e. 84R of Sy. No. 10/1, isclaimed to have been purchased by further sale deed dated10.09.1999 Exhibit 109, by defendant – Ashok from Nagorao.6.The suits are contested by defendant – Ashok on the pleathat suit lands were purchased by Nagorao Jadhav and it wasnot trust property. After demise of Nagorao, suit land bearingSy. No. 7/c/1 admeasuring 60R devolved upon him and hisyounger brother Shivaji, whereas suit land bearing Sy. No. 10/1admeasuring 84R was sold by Nagorao during his life time by 4 sa 442.23 with sa 443.23registered sale deed to him on 10.09.1999.7.The Trial Court held that plaintiff – trust was unable toprove that suit lands were trust properties on the premise thatthose were not recorded in Schedule – I, maintained by theCharity Commissioner, Nanded. The Trial Court in R.C.S. No.66 of 2008 is further impressed by execution of sale deed byNagorao Jadhav to defendant – Ashok on 10.09.1999 to hold thatsuit land is exclusive property of Nagorao. The revenue recordwas found to be corroborative to the claim of defendant Ashok.As against that while reversing the decree of the Trial Court,lower Appellate Court held that sale deeds at Exhibit 91 and 96show name of the trust. The non inclusion of the suit lands inSchedule – I with the Charity Commissioner would not vitiatesale deeds and the title.8.Lower Appellate Court also held that Civil Court hadjurisdiction. The defendant – Ashok vehemently contended thatCivil Court had no jurisdiction to examine whether the suit landsare trust properties or not. It was further argued that for wantof prior sanction U/Sec. 51 of the Act, suit was not tenable.9.Learned counsel Mr. D. J. Choudhari appearing for theappellant – defendant submits that Civil Court had nojurisdiction in view of Sec. 19(2) read with Sec. 79 and 80 of theAct. He would further submit that remedy for plaintiff – trustwas to approach authorities under the Act. It is submitted that
Legal Reasoning
5 sa 442.23 with sa 443.23interpretation of the sale deeds at Exhibit 91 and 96 issubstantial question of law involved in the matters. It is furthersubmitted that in the absence of prior sanction U/Sec. 51 of theAct, suit was not tenable.10.It is further contended that lower Appellate Courtcommitted perversity in holding that suit lands are the trustproperties, when plaintiff – trust failed to produce on recordaudit report, any tangible document to show payment ofconsideration or copy of Schedule I. It is further contended thatthe sale deeds are not proved. The lower Appellate Courtcommitted error of jurisdiction in view of the law laid down bythe Supreme Court in the matter of Santosh Hajari Vs. PurushottamTiwari (Dead) by L.Rs. reported in (2001) 3 SCC 179.11.Per contra, learned counsel Mr. V. D. Salunke for therespondent – original plaintiff – trust submits that civil Court’sjurisdiction U/Sec. 9 of the Code of Civil Procedure (hereinafterreferred as to the “C.P.C.” for the sake of brevity andconvenience) to decide the title can never be excluded. Thejurisdiction of the Charity Commissioner U/Sec. 19 read withSec. 79 of the Act is restricted to the matters pertaining to theadministration of the trust, its registration, its composition andthe business of the trust. Bar U/Sec. 80 of the Act is notattracted. It is vehemently submitted that Schedule Imaintained by the Charity Commissioner is not decisive factorand trust can always go for inclusion of the property in Schedule 6 sa 442.23 with sa 443.23I. Non inclusion of the suit lands in Schedule I would not vitiatesale deeds at Exhibit 91 and 96. It is further submitted that saledeed at Exhibit 109 reflects on the conduct of the appellant –Ashok, which exhibits thumb impression of highly educatedand reputed founder member late Mr. Nagorao Jadhav.Lastly, it is submitted that no interference is called for in theimpugned judgments and decrees passed by the lower AppellateCourt.12.I have heard rival submissions of the parties. There is nodispute that late Mr. Nagorao Jadhav was founder member ofthe trust and he was office bearer also. He had purchased 84Rland of Sy. No. 10/1 vide sale deed dated 10.08.1987 (Exhibit 91)and 60R of land Sy. No. 7/C/1 vide registered sale deed dated27.06.1989 (Exhibit 96). Both the sale deeds are placed onrecord. Plaintiff - trust examined witnesses to prove the saledeeds and, thereafter, those were exhibited. It is difficult toaccept the submissions of Mr. D. J. Choudhari, learned counselfor the appellant that sale deeds are not proved. The contents ofthe execution of the sale deeds are proved. They have probativevalue. Though suits were dismissed by the Trial Court, nofinding is recorded that the sale deeds were not proved and theyhave no probative value. 13.Both the sale deeds Exhibit 91 and 96 show that purchaseris President Janta Shikshan Prasarak Mandal through Mr.Nagorao Madhavrao Jadhav. First page of sale deeds at Exhibit 7 sa 442.23 with sa 443.2396 also shows name of President, Nrusinha Vidya Mandir. Thesesale deeds do not show that suit lands were purchased inpersonal capacity by Nagorao Jadhav. If the title documentdiscloses purchaser as a plaintiff – trust, then entries in therevenue record would not override the title document. Entries inthe revenue record are for the fiscal purposes. Defendant –Ashok failed to prove any title document in the name of NagoraoJadhav.14.It is relevant to notice that a sale deed executed on10.09.1999 is pressed into service to show that Nagorao wasexclusive owner and he alienated one of the suit lands to thedefendant – Ashok. The sale deed shows that it was executed byNagorao not by signing it, but by thumb impression. It isnobody’s case that at the relevant time late Nagorao Jadhav wasnot in a position to sign. Admittedly, he passed away on02.08.2000. Therefore, execution of the sale deed is extremelysuspicious. Late Mr. Nagorao Jadhav was educated person andfounder member of the trust. The cross examination of thedefendant shows that his father was teacher of English subject.It is incomprehensible as to how sale deed was executed bythumb impression. Learned counsel for the appellant is unableto explain this situation. Therefore, the theory based on saledeed Exhibit 109 holds no water. Lower Appellate Court rightlyappreciated this aspect of the matter considering. 15.When suit lands were not exclusively owned by late Mr. 8 sa 442.23 with sa 443.23Nagorao Jadhav and he was not having sellable title, thenfurther execution of sale deed at Exhibit 109 in favour ofdefendant – Ashok is inconsequential and does not create anyinterest in him. One who lacks title cannot transfer any bettertitle.16.The title of the suit lands is disputed in both suits. TheTrial Court did not frame issue regarding jurisdiction of the CivilCourt and there is no discussion on the said vital aspect of thematter by the Trial Court. However, lower Appellate Courtframed point for consideration and assigned reasons to point No.5 holding that Civil Court has jurisdiction to entertain presentsuit.17.My attention is adverted to Sec. 79 and 80 of the Act. It isstipulated in Sec. 79 and 80 of the Act that any questionincluding a particular property is the property of the trust shouldbe decided by the Deputy or the Assistant Charity Commissioner.The powers of Charity Commissioner are given in Chapter No. VIand VII of the Act. The adjudication of the title is not a powerassigned to Deputy Charity Commissioner. The Deputy or theAssistant Charity Commissioner are empowered to conductinquiries and have certain powers under Chapter IV, but there isno power of deciding title. As per Rule 7 of the MaharashtraPublic Trust Rules (for the sake of brevity and conveniencehereinafter referred as to the ‘Rules’) a manner is stipulated forconducting inquiries. It should be as per the Small Causes 9 sa 442.23 with sa 443.23Courts Act. As per Sec. 17(1) of the Small Causes Courts Actread with Order XXXVII of the C. P. C., the procedure to befollowed, is summary in nature. The authorities under ChapterIV to VII of the Act have summery powers. It is very difficult tocountenance a submission that title of a party would be decidedby the authority by invoking summary powers.18.Learned counsel for the appellant relied on Sec. 19 of theAct, which pertains to inquiry for registration. For the purposeof ascertaining the facts stipulated in Clauses I to VII enquiry iscontemplated. This inquiry is specifically for the registration ofthe Trust. Following clause is highlighted by the appellant :The Maharashtra Public Trust Act, 19501.…2.….19. Inquiry for registration.— On the receipt of an applicationunder section 18, or upon an application made by any person havinginterest in a public trust or on his own motion, the Deputy orAssistant Charity Commissioner shall make an inquiry in theprescribed manner for the purpose of ascertaining— 5[(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,19.This is not the investigation into title of the property. In asummery manner Deputy or Assistant Charity Commissioner is 10 sa 442.23 with sa 443.23empowered to see the property of the trust. In case of anydispute over the title of the property between trust and thirdperson, Sec. 19 of the Act cannot be resorted to. As against thata Civil Court has always jurisdiction U/Sec. 9 of the C.P.C. todeal with subjective rights of the parties pertaining to the title.Therefore, bar engrafted in Sec. 80 of the Act is not attracted.20.Respondent relied on the judgment of the Division Bench ofthis Court in the case of Ramnarayan Manilal Sahu through L.Rs.Smt.Kamal Ramnarayan Sahu and others Vs. State of Maharashtra and othersreported in 2005(2) Mh. L. J. 95. In that case subject matterwas purchased by the then petitioner from the respondent – trustby registered sale deed of 1984. The land was subjected toacquisition proceedings. The property which was purchased wasclaimed by erstwhile owner. Through the proceedings of changereport U/Sec. 22 of the Bombay Public Trust Act, matter reachedHigh Court. In that context the question of jurisdiction of theauthorities under the Act to decide title fell for consideration.Reliance on the judgment of the Full Bench in the matter of KekiPestonji Jamadar and another Vs. Khondadad Merwan Irani and othersreported AIR 1973 Bombay 130, following observations are made :“11. The procedure prescribed by the Act for the conduct of theinquiry Under Section 19 is wholly unsuited to proper and effectiveadjudication of disputed titles to the trust property. Rule 11 providesthat officer holding the inquiry may only make a memorandum ofsubstance of what each witness deposes. It is unthinkable thatquestion of title could be permitted to be decided by Tribunal finallyand conclusively without any obligation to record the evidence fully.It is not part of the functioning of the authorities Under Section 19 11 sa 442.23 with sa 443.23decide the claims which are adverse to the trust and which are madein assertion of titles which are hostile to the trust. Such titles cannotbe held to be concluded in violation of principles of natural justice. Ifthe Civil Court upheld the title of third party to the property whichUnder Section 19 has been found to be belonging to the Trust, therecord of the Charity Commissioner has to be amended so as toaccord with that decision. This itself shows the decision of the JointCharity Commissioner even as appellate authority concerning the titleof the property of the trust is not conclusive. The reason being that itwas not within the purview or scope of the inquiry contemplatedunder the Bombay Public Trust Act to be made by the authorities todecide the question of title of the property of the trust. Therefore, it iswithin the competence of the Civil Court to decide the question oftitle in respect of the property acquired by the trust and it is in thatsense jurisdiction of the Civil Court is not barred Under Section 80 ofthe Bombay Public Trust Act to decide the question of title.”21.The Division Bench inter alia relied on the observations ofthe Full Bench in paragraph No. 10 and relying on thoseobservations it is concluded that to decide the title is the domainof the Civil Court. The judgment of the Full Bench in the matterof Keki Pestonji Jamadar and another Vs. Khondadad Merwan Irani and others(supra) is further followed by the learned Single Judge in thematter of Shri Hanuman Mandir, Alibag, Public Trust and others Vs.Satischandra Bhalchandra Gurjar and others reported in 2013(3) Mh. L. J. 83as well as judgment dated 06.03.2009 of the Division Benchof this Court in the matter of Shree Shreshta SevashramRatnagiri Through Trustee Vs. Abhay Mahendra Jain andothers in First Appeal No. 2205 of 2008.22.The reliance placed by the learned counsel for theappellant on the judgment of the learned Single Judge of this 12 sa 442.23 with sa 443.23Court in Lakhanlal and othersVs. Marwadi Samshan Hanuman Mandirreported in 2006(2) Mh. L. J. 479 cannot help him because in thecited judgment Full Bench judgment in the matter of Keki PestonjiJamadar and another Vs. Khondadad Merwan Irani and others (supra) is notreferred. There is no reference of Sec. 19 of the Act and Rule 7 ofthe Rules. Similarly in the matter of Mahibubi Abdul Aziz and othersVs. Sayed Abdul Majid and others reported in 2001(2) Mh.L.J. 512, learnedSingle Judge of this Court did not refer to judgment abovereferred Full Bench. I propose to follow full Bench and theDivision Bench.23.Further reliance is placed on the judgment of the learnedSingle Judge in the matter of Bashir Abbas Kudale and others Vs.Mahadeo and others reported in 2003(2) Mh.L.J. 246. Though there isreference of Full Bench, the question posed before the Court is asto whether the subject matter is a temple and, a public trust. Theissue was as to whether a trust exists. Such is not a situation inthe present matter. I cannot concur with the reasons assigned inpara No. 8 of the judgment for distinguishing ratio laid down bythe Full Bench in the matter of Keki Pestonji Jamadar and another Vs.Khondadad Merwan Irani and others case. I find that lower AppellateCourt has rightly dealt with the subject upholding jurisdiction ofthe Civil Court. 24.The maintainability of the suit is also challenged byquoting Sec. 50 and 51 of the Act. It is a suit filed by the trustagainst private person. If a private person aspires to file suit 13 sa 442.23 with sa 443.23against trust for any relief specified in Sec. 50, then prior writtenconsent of the Charity Commissioner is contemplated. In thepresent case, trust is filing a suit to safeguard the trust’sproperty. Lower Appellate Court rightly observed that there isno impediment of Sec. 50 or 51 of the Act.25.Inclusion of the property in Schedule I maintained with theoffice of the Charity Commissioner is not a decisive factor. Themaintenance of the Schedule is for the better administration ofthe trust and for the control of the authorities under the Act. Ifthe property acquired by the trust is not included in theschedule, recourse can be taken to remove the defect. Such acourse is adopted by the plaintiff – trust by filing applicationdated 03.05.2009 at Exhibit 100. It is rightly submitted by Mr.V. D. Salunke, learned counsel for the plaintiff – trust that noninclusion of the suit land in Schedule I would not vitiate the saletransactions conferring title on the plaintiff trust.26.For the reasons stated above, I find that substantialquestions pressed for consideration sans merit. Both secondappeals are dismissed. There shall be no order as to costs. [ SHAILESH P. BRAHME J. ] bsb/July 25