SHRI SHVAYYA @ SHIVANAND v. THE STATE OF MAHARASHTRA

where the Assistant Charity Commissioner held that Shri. Hiremath of Katkol Trust was a Public Charitable Trust and was registered at Sl.No.A-3109. He claimed that prior to him, a person named, Sri. Basavaraj Gurubasayya @ Padadayya Hiremath (also called as 'Sri. Basavaraj Swamy') was the trustee of the Trust. He claimed that Sri. Basavaraj Gurubasayya had indulged in immoral activities and had brought the Trust to disrepute. Therefore, the elders of the village enquired with him who spilled the beans that he had executed a relinquishment deed in favour of the elders of Veerashaiva Samaja of Katkol on

28.01.1995. Consequently, he stepped down from the Peetadhipathi of Hiremath Katkol Trust and the Mutt. Thereafter, the disciples of the Mutt appointed the plaintiff as the Pattadhikari as per a declaration dated 12.04.1995, which was approved by the Assistant Charity Commissioner, Belgaum in Enquiry No.701/1995 and change was ordered in the PTR as per the order dated

29.09.1995. Thus, he claimed that he was the Chief Trustee of Sri. Hiremath Trust of Katkol. He claimed that 5 the erstwhile trustee had executed a sale deed dated

21.02.1992 in favour of the defendant in respect of the suit property and had conveyed it for a sum of Rs.10,000/-. He alleged that the defendant had conspired with the earlier Peetadhipathi to cause loss to the Trust and to benefit from it. He alleged that the defendant did not pay any consideration and no amount was deposited in the Account of the Trust. Hence, he claimed that the sale did not bind the plaintiff or the Trust. He alleged that no permission was taken from the office of the Charity Commissioner, Belgaum, before alienating the suit property and hence, it was in violation of the law and therefore, was unenforceable. He claimed that based on the sale deed, the defendant got his name entered in the revenue records as per M.E.No.9629 dated 18.04.1992. The plaintiff claimed that he requested the defendant to re-convey the property to the Trust and as the defendant refused to do so, he was constrained to institute the suit for a decree of declaration that the sale deed dated

21.02.1992 executed in favour of the defendant was null 6 and void and not binding upon the Trust as well as the plaintiff and for recovery of possession of the suit property.

#4. The suit was contested by the defendant who denied the averments of the plaint generally. He claimed that he had purchased the suit property after conducting due diligence. He claimed that the public records such as the record of rights and mutation entries pertaining to the land bearing Sy.No.476/2 indicated that Sri. Basavaraj Swamy was the owner in possession and enjoyment of the suit property. He claimed that he thereafter offered to purchase the suit property at a sum of Rs.10,000/-, which was the then market value. Accordingly, Sri. Basavaraj Swamy agreed and executed a sale deed and conveyed the suit property after receipt of a sum of Rs.10,000/- and therefore, the sale was protected under Section 41 of the Transfer of Property Act, 1882. The defendant claimed that he was a bonafide purchaser. Thus, he claimed that the sale of the suit property was binding on his vendor as well as on the plaintiff, who claimed to be the successor 7 trustee. He alleged that the plaintiff was appointed with effect from 01.04.1995 and therefore, he could not challenge the alienation made by Sri. Basavaraj Swamy on

21.02.1992. He contended that the suit was instituted without obtaining sanction from the Charity Commissioner, Belgaum and therefore, the suit was not maintainable. Besides this, he claimed that the plaintiff had no locus standi to file the present suit in view of Section 33 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (henceforth referred to as 'Act of 1997'). He claimed that the Civil Court had no jurisdiction to decide the case in view of Section 68 read with Section 32 of the Act of 1997.

#5. Based on these rival contentions, the Trial Court framed the following issues:-

#1. Whether the plaintiff proves registered sale deed dated 21/02/1992 with regard to suit property by Basavaraj Swamy in favour of defendant is null and void and 8 created and not binding on the plaintiff for the reason stated in para 4 of the plaint ?

#2. Whether the defendant proves that plaintiff cannot challenge the sale transaction as alleged in para 6 of the written statement ?

#3. Whether the suit suffers from want of necessary sanction to initiate the suit from the Charity Commissioner, Belgaum?

#4. Whether the suit is bad for non-joinder of necessary parties i.e. Basavaraj Swamy ?

#5. Whether the plaintiff proves alleged cause of action ?

#6. Whether the Court fee paid is correct ?

#7. Whether this Court has no pecuniary Jurisdiction to try the suit?

#8. Whether the suit is barred by limitation ?

#9. Whether the plaintiff is entitled declaratory relief with regard to sale deed dated 21/2/1992? 9

#10. Whether the plaintiff is entitled for relief of possession ?

#11. To what reliefs, plaintiff is entitled for ?

#12. What order or decree ? Additional Issue:

#1. Whether the defendant proves that this suit is not maintainable under Section 68 R/W. 32 and Section 33 of the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1977 ?

#6. The power of attorney of the plaintiff was examined as PW.1 and he marked Exs.P1 to P5.The defendant did not lead any oral evidence and did not mark any documentary evidence.

#7. Based on the oral and documentary evidence adduced by the plaintiff, the Trial Court held that Section 68 of the Act of 1997 was not applicable to the present case as what was questioned before the Civil Court was not an issue that had to be decided by the authorities 10 under the Act of 1997. It held that in view of the recitals contained in the sale deed dated 21.02.1992, the vendor of the defendant had sold the suit property to meet his domestic needs and not to meet the interest of the Trust. It perused Ex.P4, which is the registration of Sri. Hiremath Trust as a Public Trust, which showed that Sri. Basavaraj Gurubasayya @ Padadayya Hiremath was the previous trustee and his name was deleted and the name of the plaintiff was entered in the year 1995. It was also found that the property bearing Sy.No.476 was one of the properties that belonged to the Trust. The Trial Court therefore, held that when the suit property belonged to the Trust, the plaintiff was entitled to file a suit on behalf of the Trust. It held that the defendant did not enter the witness box to disprove the version put up by the plaintiff and did not produce any documents to justify the same. It therefore, held that the sale deed dated 21.02.1992 in favour of the defendant was null and void and not binding upon the plaintiff. 11

#8. Being aggrieved by the said judgment and decree, the defendant filed R.A.No.6/2009 before the First Appellate Court. The First Appellate Court secured the records of the Trial Court, heard the counsel for both the parties and framed the following points for consideration:-

#1. Whether trial court justified decreeing the suit of the plaintiff ?

#2. Whether the Civil Court has no jurisdiction to try the suit ?

#3. Whether permission of Charity Commissioner was necessary prior to filing of the suit ?

#4. Whether the judgment and decree passed by trial court calls for interference ?

#5. What order ?

#9. The First Appellate Court held that Sri. Basavaraj Swamy was the earlier trustee and Peetadhipathi of Hiremath Trust of Katkol. It held that the said Sri. Basavaraj Swamy had stepped down as the Peetadhipathi of the Mutt and the plaintiff was the present 12 Peetadhipathi and trustee of the Mutt. It held that the land in Sy.No.476/2 measuring 2 acres 5 guntas situate at Katkol belonged to the Mutt. It held that the defendant had not paid any consideration much less Rs.10,000/- and the said amount was not deposited in the Account of the Mutt. It also held that no prior permission was obtained from the competent authority before encumbering the property. It further held that in the sale deed in Ex.P3, it was stated that the suit property belonged to Sri. Basavaraj Swamy and that he was selling it to meet his legal necessities. Therefore, it held that the property was sold not for the benefit of the Trust. It held that the defendant did not prove that the sale deed was legal and valid by entering the witness box. It further held that as per Section 23(e) of the Act of 1997, a notified institution means a Hindu Religious Institution registered under the Bombay Public Trusts Act, 1950 which was receiving any monthly or annual grant from public revenues or any amount under the Karnataka Certain Inams (Abolition) Act, 1977. It held that though the Trust was registered under the Bombay 13 Public Trusts Act, 1950 but it was not receiving any monthly or annual grant and therefore, plaintiff failed to prove that it was notified institution. It held that if the property of a notified institution is alienated then, the Deputy Commissioner has the power to initiate proceeding under Section 32 of the Act of 1997 to recover the property sold. Therefore, it held that the jurisdiction of the Civil Court was not barred. It negatived the contention of the defendant that sufficient opportunity was not given to him to putforth his case. In this regard, it relied upon the order sheet, which showed that the evidence of the plaintiff was closed on 06.03.2003 and thereafter, the case was posted for defendant's evidence on 12.03.2003,

15.03.2003 and thereafter, adjourned from time to time for five years. Hence, it dismissed the appeal and confirmed the judgment and decree of the Trial Court.

#10. Being aggrieved by the concurrent finding of fact as well as the finding on the question of law, the defendant has filed this Regular Second Appeal. 14

#11. During the pendency of this appeal, the appellant/defendant died and his legal representatives were brought on record.

#12. This appeal was admitted to consider the following substantial question of law:- 1) Whether the court of first instance is right in holding that it had jurisdiction to entertain a suit, subject matter of which was one which is a property of a public trust within the meaning of the provisions of the Bombay Public Trusts Act, 1950 and when the court of first instance was neither a city civil court within the limits of greater Bombay nor a district court, as is required for institution a suit in terms of the definition of 'court' under Section 4(2) of the Act? 2) Whether the courts below were justified in concluding that there was no need to obtain prior permission of the charity commissioner, which is because trustee himself was instituting a suit for declaration and recovery of the trust property? 15

#13. The learned counsel representatives of the defendant submitted that the defendant had specifically raised an objection in the written statement that the Court had no jurisdiction to try the suit in view of Section 68 read with Section 32 of the Act of 1997. He contended that the defendant had also contended in the written statement that in view of section 33 of the Act of 1997, the plaintiff had no locus standi to institute the suit. He further contended that under Section 50 of the Bombay Public Trusts Act, 1950, the permission of the Charity Commissioner to institute proceedings is mandatory and since in the present case, no such permission was obtained, the suit was not maintainable. He also contended that the suit was filed in the individual capacity and all the trustees of the Trust were not arrayed as parties. In support of his contention, he relied upon a judgment of the Coordinate bench of this court in RSA 5339/2012, where the other portion of land in Sy.No.476/2 was sold by Sri. Basavaraj Gurubasayya on 21.02.1992. This Court held that the suit filed in O.S.No.26/1998 16 without obtaining the permission of the Charity Commissioner under Section 50 of the Bombay Public Trusts Act, 1950 was not maintainable. It was also held that the plaintiff ought to have included all the managers of the Trust found in Ex.P4 and therefore, the suit was hit by Order XXXI Rule 2 of CPC. It further held that though the sale deed was executed on 21.02.1992, the suit was filed in the year 1998 and hence, it was hit by the law of limitation as it was not filed within three years. It was held that the suit was filed in the individual capacity of the plaintiff and the suit was not maintainable. Learned counsel therefore, contends that the present suit also is liable to meet the same fate. He next referred to the judgment of the Hon'ble Supreme Court in the case of Gollaleshwar Dev and others vs. Gangawwa, W/o Shantayya Math and Others [AIR 1986 SC 231], where the Hon'ble Supreme Court was considering the meaning of the words "persons having interest in trust" in Section 2(10) and Section 50 of the Bombay Public Trusts Act, 1950. The Hon'ble Supreme Court held that, 17 "13. It is clear from these provisions that Section 50 of the Act created and regulated a right to institute a suit by the Charity Commissioner or by two or more person interested in the trust, in the form of supplementary statutory provisions without defeasance of the right of the manager or a trustee or a shebait of an idol to bring a suit in the name of idol to recover the property of the trust in the usual way. There is therefore no reason why the two or more person interested in the trust should be deprived of the right to bring a suit as contemplated by Section 50(ii)(a) of the Act. Although Sub-section (1) of Section 52 makes Sections 92 and 93 of the Code inapplicable to public trusts registered under the Act, it has made provision by Section 50 for institution of such suits by the Charity Commissioner or by two or more persons interested in the trust and having obtained the consent in writing of the Charity Commissioner under Section 51 of the Act .

#14. We are unable to subscribe to the view expressed by the High Court. Although the Full bench rightly adverted to Sub-Section (1) of Section 52 of the Act which excludes applicability of Sections 92 and 93 of the Code to the public trusts governed by the Act, it was not 18 right in its conclusion that a suit instituted by the idol represented by two or more trustees, with the written consent of the Charity Commissioner as provided in Section 51 of the Act, was not within the purview of Section 50(ii)(a) of the Act and therefore could not be brought in the Court of the District Judge. Although Section 50 of the Act is structured upon the pattern of Section 92 of the Code, the Full Bench failed to appreciate that there is no provision in Section 92 of the Code analogous to Clause (ii) or relief (a) of Section 50 of the Act. It will be seen from Section 50 that the Section authorizes the institution of a suit by the Charity Commissioner or two or more persons interested in the trust only in the District Court having jurisdiction to try it. The scope of Section 50 of the Act is wider than that of Section 92 of the Code. It applies to a case so long as the relief claimed falls within the scope of the section. One of the reliefs that can be claimed in a suit brought under Section 50 of the Act is that covered by relief (a) set out in Clause (ii) viz. for a declaration that a certain property belongs to a public trust and possession thereof from a person holding adversely to the trust viz. a suit brought by the Charity Commissioner or two or more persons 19 interested in the trust with his consent in writing as provided in Section 51 of the Act."

#14. Per contra, learned counsel for the plaintiff contended that the Bombay Public Trusts Act, 1950 was repealed by the Act of 1997 and therefore, the provisions of Section 50 of the Bombay Public Trusts Act, 1950 was inapplicable to the institution in question. He submitted that the High Court of Bombay in the case of Leelavati and others vs. Dattatraya Dhondiraji Kavishar and others [1988 (2) BOM CR 429], which was a case of trustees of a Public Trust suing a trespasser to recover a property of the Trust, held that in the first instance, the trustee could move the Charity Commissioner, who can himself file a suit before the Court or can give consent in writing to the persons having interest i.e., two or more trustees having an interest in the Trust to file a suit in the Court having jurisdiction to decide the subject matter. It held that the other course is that the trustees as owners of the property like any ordinary owner, could file a suit against a trespasser in the ordinary Court having original 20 civil jurisdiction over the subject matter of the suit. He relied upon the following finding : "14. This position which therefore emerges is that a suit by trustees for possession of the trust property against a trespasser can be filed in the usual way in the Court of ordinary civil jurisdiction or can be also be filed with permission of the Charity Commissioner under section 50 of the Act in the Court of the District Judge. Which course, out of the aforesaid courses, is to be taken depends on the facts and circumstances of each case. In no case, can section 50 be considered as a bar to the tenability of such a suit."

#15. I have considered the submissions made by the learned counsel for the legal representatives of the defendant as well as the learned counsel for the plaintiff. I have also perused the records of the Trial Court and its judgment and decree as well as the judgment and decree of the First Appellate Court. 21

#16. Ex.P5 is the proceeding initiated by the Assistant Charity Commissioner in Enquiry No.701/1995. The outgoing Swamiji named, Sri. Basavaraj Gurubasayya had nominated the plaintiff as the successor Swamiji of the Trust. Based on the enquiry, the Assistant Charity Commissioner, Belagavi, accepted the change report and deleted the name of Sri. Basavaraj Gurubasayya and entered the name of the plaintiff in P.T.R sheet and deleted the names of five Managers from the PTR sheet who had expired. Accordingly, as per Ex.P5, the name of the plaintiff was entered in the P.T.R. sheet and the names of five deceased Managers were deleted. Ex.P4 indicated that the land bearing Sy.No.476 of Katkol measuring 13 acres 11 guntas belonged to the Trust. Ex.P3 is the sale deed executed by Sri. Basavaraj Gurubasayya in favour of defendant conveying 2 acres 5 guntas to the defendant by treating the said property as his own.

#17. Under Section 36 of the Bombay Public Trusts Act, 1950, no sale of any immovable property belonging to 22 a Public Trust shall be valid without the previous sanction of the Charity Commissioner. However, the Charity Commissioner can grant sanction, if it is in the interest of the Trust. If the sanction is obtained fraudulently then, he may direct the trustee to take such steps within a period of 180 days from the date of revocation or a period not exceeding one year in the aggregate to recover the property. If the trustee fails to recover it within the time specified above, the Charity Commissioner may assess any advantage received by the trustee and direct him to pay compensation to the Trust equivalent to the advantage so assessed.

#18. In so far as the present case is concerned, it is not the case of the defendant and there is no material on record that the sale deed executed by Sri. Basavaraj in favour of the defendant was after obtaining the consent of the Charity Commissioner under Section 36 of the Bombay Public Trusts Act, 1950. Therefore, the sale deed dated

21.02.1992 in favour of the defendant was not valid and 23 therefore, not enforceable in the eye of law. Thus, the suit filed for the relief of declaration that the sale deed dated

21.02.1992 was null and void, was not required in view of the statutory declaration in Section 36 of the Bombay Public Trusts Act, 1950 that such alienation shall not be valid.

#19. In so far as the question whether the suit could be filed by the trustee of a Public Trust to recover the property of a Public Trust from a person who claimed adversely, Section 50 of the Bombay Public Trusts Act, 1950 created a clear embargo which reads as follows:- “50. Suit by or against or relating to public trusts or trustees or others: In any case,— (i) where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees; (ii) where a direction or decree required to recover the possession of or to follow a property belonging or alleged to be belonging to a public 24 trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee; (iii) where the direction of the Court is deemed necessary administration of any public trust, or (iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject- matter of the trust is situate, to obtain a decree for any of the following reliefs:- 25 (a) an order for the recovery of the possession of such property or (b) (c) (d) (e) (f) proceeds thereof; removal of any trustee or manager; the appointment of a new trustee or manager; vesting any property in a trustee; a direction for taking accounts and making certain enquiries; an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or wilful default; (g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (h) a direction to apply the trust property or its income cy pres on the line of Section 56 if this relief is claimed along with any other relief mentioned in this section; (i) a direction authorising the whole or any part of the trust property to be 26 let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary; (j) the settlement of a scheme, or variations or alterations in a scheme already settled; (k) an order for amalgamation of two or more trusts by framing a common scheme for the same; (l) an order for winding-up of any trust and applying the funds for other charitable purposes; (m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust; (n) an order exonerating the trustees from technical breaches, etc.; (o) an order varying, altering, amending or superseding any instrument of trust; (p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or 27 (q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid reliefs or is necessary in the interest of the trust: Provided that, no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except conformity with the provisions thereof; Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled: Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1."

#20. The Hon'ble Supreme Court in the case of Virupakshayya Shankarayya vs. Neelakanta Shivacharya Pattadadevaru [AIR 1995 SC 2187] held that Section 50 not only included a case of recovering 28 property from a person holding adversely to the Public Trust but also included a person who did not claim adversely to the Public Trust.

#21. Similarly, in the case of Church of North India vs. Lavajibhai Ratanjibhai and others [(2005) 10 SCC 760], the Hon'ble Supreme Court considered when the jurisdiction of the Civil Court is not excluded under the provisions of the Bombay Public Trusts Act, 1950 and relied upon its earlier judgment in the case of Gollaleshwar Dev and others, referred supra, and held as follows:- "If the question as regards recovery of possession of the property belonging to a public trust squarely falls within the purview of Section 50 of the Act, had such application being filed before the Charity Commissioner, he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, could a suit have been filed in terms of Section 51 of the Act." 29

#22. Therefore, in the instant case, the suit is filed for recovery of a property belonging to the Trust and when the suit was filed, the Trust was governed by the Bombay Public Trusts ACT, 1950. The defendant was claiming adverse to the Trust and therefore, it was incumbent upon the plaintiff to approach the Charity Commissioner for a consent to initiate proceedings. Since that was not done, the suit was not maintainable for the recovery of possession. However, the Bombay Public Trusts Act, 1950 is now repealed with effect from 01.05.2003 by virtue of Section 78 of the Act of 1997. By virtue of Section 23(e) of the Act of 1997, all Hindu Religious Institutions registered under the Bombay Public Trusts Act, 1950 are governed under the Act of 1997. A person having interest under the Act of 1997 includes any beneficiary of Hindu Religious Institutions or Charitable Endowments.

#23. Under Section 62 of the Act of 1997, any sale of any immovable property belonging to or given or endowed for the purpose of any Notified Institution or a 30 Declared Institution shall be null and void unless it is sanctioned by the State Government as being necessary or beneficial to the Institution. Under sub-section (4) of Section 62 of the Act of 1997, when the Assistant Commissioner comes to know of such alienation, he may after an inquiry, issue notice to the alienee or any person in possession to restore such land to the institution to which it belongs within three months from the date of service of notice, failing which, he should take steps to resume or restore such land to the institution accordance with the provisions of the Karnataka Public Premises (Eviction of Unauthorized Occupants) Act, 1974. However, under Section 68 of the Act of 1997, the jurisdiction of the Civil Court to decide or deal with any question which is to be decided under the Act of 1997 or to be dealt with by an officer or authority under the Act, is ousted. Therefore, as rightly contended by the learned counsel for the legal representatives of the defendant, there was an express bar regarding the jurisdiction of the Civil Court and the Court could not have entertained the 31 suit of the plaintiff for recovery of possession of the suit property.

#24. In that view of the matter, the substantial questions of law are answered in favour of the defendant and against the plaintiff.

#25. Consequently, this appeal is allowed in part. In view of the statutory declaration under Section 36 of the Bombay Public Trusts Act, 1950, there was no need to seek for the relief of declaration that the sale deed dated

21.02.1992 was null and void as the document was invalid and could not be enforced. However, the judgment and decree dated 19.06.2009 passed by the Civil Judge (Sr. Dvn.), Ramdurg in R.A.No.6/2009 and the judgment and decree dated 08.12.2008 passed by the Civil Judge (Jr. Dvn.), Ramdurg in O.S.No.27/1998 directing recovery of possession of the suit property are set aside.

#26. The suit filed by the plaintiff in O.S.No.27/1998 on the file of the Civil Judge (Jr. Dvn.), Ramdurg in so far 32 as the relief relating to recovery of possession of the suit property, is dismissed. Since the suit property was alienated by the erstwhile trustee of the Trust without obtaining the required permission under Section 36 of the Bombay Public Trusts Act, 1950, the alienation is not valid and therefore, liberty is reserved to the plaintiff to approach the Assistant Commissioner of the concerned division under sub-section (4) of Section 62 of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, who shall take immediate steps to resume and restore the land to the institution accordance with law.

#27. This is however, subject to the outcome of Civil Appeal No.5924/2008 and connected cases pending before the Hon'ble Supreme Court regarding the constitutional validity of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997. It is open for the respondent/plaintiff to seek review of this judgment in 33 case, the Hon'ble Supreme Court dismisses the aforesaid Civil Appeal No.5924/2008 and connected cases.

#28. In view of disposal of the appeal, pending I.As., if any, do not survive for consideration and the same