NAGPUR BENCH : NAGPUR v. Shri Balaji Sansthan

[Shri P.S. Khubalkar, Adv. for appellants] CORAM : A.B. CHAUDHARI, J. DATED : 06.04.2011. Learned Counsel for the appellants argued that Venubai had executed Will (Exh.41) in favour of the appellant and he was taking care of the property which was in the name of Guru Mathuradas. He further argued that the suit was not maintainable in the absence of permission under Section 51 of the Bombay Public Trusts Act, 1950 for eviction and possession of the appellant. Having heard learned Counsel for the appellants, I find that the issue about Will (Exh.41) was never raised before the lower Court and no issue was framed to that effect. Consequently, there was no adjudication regarding the said Will by the trial Court. It, however, appears that the appellate Court for the first 2 time discussed about the Will in paragraph No.10 of its judgment. However, the said issue not being raised in the lower Court or adjudicated, one cannot understand as to how the same was taken up and discussed and adjudicated by the appellate Court and that apart even then the appellate Court has rejected the Will on the ground that Venubai herself did not own the property though she executed the Will and therefore, in terms of the maxim nemo dat quod non habet she was not entitled to bequeath the said property. All these are findings of facts and no substantial question of law is involved. In so far as submission regarding prior permission from the Charity Commissioner for filing the suit is concerned, it is specifically stated in paragraph No.19 of the trial Court judgment that there was no plea in the written statement nor any objection was taken in the lower Court. Learned Counsel for the appellants could not point out from the pleadings that any such objection was raised in the written statement. In that view of the matter, I do not find any question of law much less substantial question of law in the present appeal. Second Appeal is, therefore, dismissed. No order as to costs. JUDGE