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CASE NO.:

Appeal (civil) 9419 of 2003

PETITIONER:

Church of North of India

RESPONDENT:

Lavajibhai Ratanjibhai & Ors.

DATE OF JUDGMENT: 03/05/2005

BENCH:

B.P. Singh & S.B. Sinha

JUDGMENT:

J U D G M E N T

With

I.A. Nos. 5 to 10 of 2005

(Application for impleading party)

S.B. SINHA, J :

INTRODUCTION

The extent of bar of jurisdiction of Civil Court under Section 80 of the

Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the BPT Act') is

the question involved in this appeal which arises out of a judgment and order

dated 21.03.2003 passed by the High Court of Gujarat at Ahmedabad in S.A.

No.303 of 1986.

BACKGROUND FACT:

The basic fact of the matter is not much in dispute.

In or about 1895, some American Missionaries established a religious

institution (Church) at Valsad for propagation of protestant faith of Christian

religion and to establish and manage the churches for the people professing

that faith. The object of the 'Brethren Church' was to propagate the work of

the church of the brethren in western India in order to reveal Christ by

means of evangelistic, educational, medical, literary, industrial school, social

and charitable activities leading to the establishment of the kingdom of God.

A Continuation Committee is said to have been appointed in the year 1930

by the representatives of the Brethren Church and other churches in a

Round Table Conference held in New Delhi with a view to consider the

modalities and other details for amalgamation of churches. The Committee

is said to have worked out a broad basis for the unification of churches

which was accepted by the participant churches whereupon a new committee

came into being in the year 1951. The First District Church of the Brethren

in India (Brethren Church) was registered as a religious society under the

Societies Registration Act, 1860 bearing Registration No.1202/44; the object

whereof was to promote the work of the church of the brethren in Western

India with the same object wherefor the church was established. Another

Round Table Conference is said to have been held in the year 1951 at New

Delhi resulting in appointment of a new committee known as 'Negotiating

Committee' in order to continue deliberations for the union of churches; five

other associations were included in the Committee, namely, The Council of

the Baptist Churches in North India, The Church of India, Pakistan, Burma

and Ceylon, The Methodist Church (British and Australian Conference),

The Methodist Church in Southern Asia and The United Church o Northern

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India. The Brethren Church (First District Church of the Brethren) was

registered as a public trust in Gujarat bearing No.E-643, Bharuch in terms of

the BPT Act. The Negotiating Committee made its final recommendations

which came to be known as the '4th Plan of the Union' which was published

in a book entitled 'Plan of Church Union in North India and Pakistan'; the

principal recommendation of the Committee being that all the six uniting

churches should be dissolved and united to become one church to be known

as "The Church of Northern India" (hereinafter referred to as "the CNI)

which should be the legal continuation and successor of the united churches

and all the properties, assets, obligations etc. thereof would vest in or

devolve on CNI. The booklet of the 4th Plan is said to have been circulated

to the governing bodies of the uniting churches with a view to enable them

to deliberate thereover and to take appropriate decision in that behalf.

On or about 17.02.1970, a Resolution bearing No.70/08 is said to

have been passed by the majority of members for effecting the dissolution as

a society under the Societies Registration Act, 1860. The Negotiating

Committee thereafter on or about 29.11.1970 took a decision to formally

inaugurate the CNI at Nagpur. The Brethren Church allegedly placed the

said Resolution No.70/08 at the altar wherein it was explicitly affirmed that

the CNI shall be deemed to be the legal continuation and successor of the

brethren church and the rights, titles, claims, estates and the interests of the

church together with its privileges and obligations shall vest in the CNI as its

legal heir on or from the date of inauguration. The Church of North India

Trust Association was registered as a company under the Companies Act,

1956, in the year 1976. The original defendant Nos. 1 to 4 who were said to

be initially part of the CNI and were parties to the resolution dated

17.02.1970 raised a contention that the Brethren Church continued to exist.

They started obstructing the functioning of the CNI, and in particular the

worship in churches, and asserted that the First Brethren Church had not

been dissolved and continued and they represented the same.

The original plaintiffs, namely, Ambelal Okarial Patel, Shantilal

Lakshmichand Purani, Bishop T.L. Christachari and Samuel Nagarji Bhagat

(since deceased) said to be the former office bearers of the Brethren Church

filed a suit in the Court of the Civil Judge, Senior Division, Bharuch, marked

as Civil Suit No.72 of 1979.

The CNI was impleaded as defendant No. 5 therein, although no relief

thereagainst was claimed contending that it was a necessary and/or a proper

party. The Brethren Church were not made parties in the said suit. It is

stated at the Bar that the said churches were impleaded at a later stage of the

proceedings but the said applications were later on dismissed. The original

defendant No. 4 in his written statement filed in the said suit took a

categorical stand that there had been no dissolution of the Brethren Church

and their separate entity was not lost. According to the said defendant they

were temporarily suspended till it was revived again and, thus, they were

entitled to work for and on behalf of the Brethren Church. In the said

proceedings, certain interim orders were passed wherewith we are not

concerned. However, with a view to complete the narration of facts, we may

notice that the CNI filed an application for its registration before the Charity

Commissioner in terms of the provisions of the BPT Act, which was granted

by an order dated 12.5.1980 with effect from 19.11.1971. The CNI

thereafter filed a change report before the Charity Commissioner on or about

15.1.1981. Admittedly, the said application has not yet been disposed of.

While things stood thus, the Charity Commissioner was impleaded as

a party in the suit and in its written statement a plea was raised that the

jurisdiction of the Civil Court was barred in terms of Section 80 of the BPT

Act contending :

"4. In view of provisions of Bombay Public Trusts Act,

1950. The question whether or not a trust of particular

property is the property of such trust, is to be decided

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exclusively by the Deputy or Assistant Charity

Commissioner appointed under the Act, the Assistant

Charity of the Brethren "as a public trust at No. E-643

(Bharuch) under the Bombay Public Trusts ct, 1950. The

decision of the Assistant Charity Commissioner, Bharuch

unless set aside as provided under the Act, is final and

conclusive. It is further submitted that the jurisdiction of

the Hon'ble Court is also barred under Section 80 of the

Act. The plaintiffs are, therefore, not entitled to the

reliefs as prayed for by them. The suit, deserves to be

dismissed."

PROCEEDINGS:

The learned Civil Judge by judgment and decree dated 31.3.1984

decreed the suit; findings in support whereof would be noticed a little later.

An appeal was preferred thereagainst on or about 4.5.1984 by the

original defendants in the Court of the District Judge, Bharuch, which was

marked as RCA No.72 of 1984. By judgment and decree dated 11.8.1986,

the said appeal was allowed whereagainst the CNI (Appellant herein)

preferred a Second Appeal before the Gujarat High Court, which was

marked as Second Appeal No.303 of 1986. On or about 29.3.2002, the

Charity Commissioner is said to have filed a detailed affidavit in support of

the Change Report No.665/81. By reason of the impugned judgment and

order dated 21.3.2003, the said Second Appeal was dismissed.

Hence the Appellant is before us.

CONTENTIONS:

Mr. C.A. Sundaram, the learned Senior Counsel appearing on behalf

of the Appellant would submit that the Court of First Appeal as also the

High Court committed a manifest error in passing the impugned judgments

insofar they failed to take into consideration the scope and purport of the

suit. According to the learned counsel, the learned Trial Judge had rightly

decreed the suit having taken into consideration the fact that the matter

relating to formation of churches and their merger in the name of the CNI

was not a matter which could be determined by the Charity Commissioner in

exercise of his powers under the BPT Act. The learned counsel would

contend that the society and the trust are two separate entities. The Society

being not a juristic person although cannot own any property but manage the

affairs of the trust which would be the owner of the property. According to

the learned counsel the Court of First Appeal and the High Court

misdirected themselves in passing the impugned judgments insofar as they

proceeded on the premise that having regard to the fact that properties

belonging to the Brethren Church were registered in the books maintained

by the Charity Commissioner under Section 17 of the Act, any church

affected thereby would fall within his jurisdiction and consequently the

dissolution of the society and managing of the churches and consequently

their merger would also come within the purview of the provisions of the

BPT Act.

Mr. Sundaram would submit that a society registered under the

Societies Registration Act, 1860 and a trust registered under the BPT Act

are two different entities. Whereas the activities and the dealings of the

latter may fall within the exclusive jurisdiction of the authorities specified

under the BPT Act, the activities of the society would be governed by the

Societies Registration Act, 1860. The Civil Court, therefore, according to

Mr. Sundaram, had the requisite jurisdiction to deal with the question as to

whether the resolution adopted in the year 1970 resulting in dissolution and

the merger of the churches was valid. Such a dispute, Mr. Sundaram would

argue, is beyond the jurisdiction of the Charity Commissioner. The learned

counsel would urge that once the dissolution of the Brethren Church and

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consequent merger in the Appellant is held to be valid, in terms of the

Section 26 of the BPT Act, the Charity Commissioner is enjoined with a

duty to make necessary changes in the books maintained under Section 17 of

the BPT Act. Sections 31, 50, 51, 79 and 80 of the BPT Act, according to

Mr. Sundaram, do not clothe the Charity Commissioner or any other

authority thereunder to determine a question as regard the validity of a

resolution of a society and/or its merger.

Mr. K. Ramamoorthy, the learned Senior Counsel appearing on behalf

the Brethren Church supporting the Appellant would contend that

administration of a religious property must be understood in its proper

context. According to the learned counsel, administration of a property

belonging to trust may not have anything to do with the actual possession or

dealing with the administration thereof.

The learned counsel would draw our attention to the judgments in

State of Madras vs. Kunnakudi Melamatam and Another [AIR 1965 SC

1570]; Chiranjilal Shrilal Goenka (deceased) Through L.Rs. vs. Jasjit Singh

and Others [(1993) 2 SCC 507] and Rajasthan State Road Transport

Corporation and Another vs. Krishna Kant and Others [(1995) 5 SCC 75]

and contended that in various situations, the Civil Court and the Probate

Court alone have been held to have exclusive jurisdiction and not the

Charity Commissioner. According to the learned counsel, the Charity

Commissioner being a creature of statute must exercise its jurisdiction

within the four-corners thereof and the matters which do not come within the

purview of the BPT Act must necessarily be left to the jurisdiction of the

Civil Court. According to the learned counsel the provisions of Section 50

of the BPT Act do not show that requirements contained therein must be

carried out even in a case where the Charity Commissioner may not have

any jurisdiction.

As regard interpretation of Section 31 of the BPT Act, the learned

counsel would contend that the provision thereof bars hearing and decision

in the suit and not the institution thereof. Although in the year 1979, the

Appellant herein was not registered but as before hearing of the suit was

taken up, it became registered in the year 1980, the Civil Judge had the

jurisdiction to hear and decide the said suit even it involved dealing with the

trust property.

Mr. Huzefa Ahmadi, the learned counsel appearing on behalf of the

contesting Respondents, on the other hand, would submit that for the

purpose of determining the question as to whether the suit before the Civil

Court was maintainable or not, the averments made in the plaint must be

read as a whole and substratum thereof must be noticed. As adjudication

was sought for in relation to administration and possession of the properties

of a trust; the suit was not maintainable. It was pointed out that the true

identity of the Appellant had not been disclosed, i.e., as to whether it is a

trust registered under the BPT Act, or a company registered under the Indian

Companies Act, 1956.

The learned counsel submitted that although a distinction is sought to

be made between the activities of a society which runs the administration of

a trust and a trust which owns the property, no such distinction was made in

the proceedings before the courts below. Drawing our attention to certain

grounds taken in the Special Leave Petition, Mr. Ahmadi would urge, that in

fact the finding of the High Court to the effect that the society and the trust

are two separate entities had been questioned. Taking us through the plaint,

the learned counsel would contend that plaintiffs as also the learned Trial

Judge proceeded on the basis that the trust had ceased to exist and wherever

the expression "Brethren Church" has been used in the judgment, the learned

Trial Court referred to it as a trust and not as a society.

Mr. Ahmadi would contend that the learned Trial Court proceeded on

the basis that there existed inconsistencies between the provisions of the

Societies Registration Act which is a Parliamentary Act and the BPT Act,

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which is a State Act and relying on or on the basis of clause (2) of Article

254 of the Constitution of India, it came to the decision that the former shall

prevail over the latter. It is in that context, issues were decided and not on

the basis that the society and the trust are two separate entities. We were

taken through the relevant paragraphs of the BPT Act and in particular

Sections 2(10), 2(13), 13(b), 17, 18, 19, 20, 21, 22, 31, 36, 50, 51, 74, 79

and 80 by Mr. Ahmadi to show that the said provisions clearly indicate that

the BPT Act is a self-contained code and deals with all questions governing

a trust and the properties held by it. It was urged that the provisions of

Section 26 thereof must be read in that context. The learned counsel would

submit that the provisions of Section 26 of the BPT Act, in the facts and

circumstances of the case, would have no application where a suit was

expressly barred which regulates management of a trust, as the BPT Act

created a specialized machinery to determine the issues governing the same.

Drawing our attention to the prayer (b) of the plaint, Mr. Ahmadi

would argue that the same would squarely fall within the purview of

Sections 50 and 51 of the BPT Act and, thus, would be barred as no

permission of the Chief Commissioner was sought for and obtained.

The learned counsel would contend that the plea that the suit related to

the affairs of the society is merely a ruse or a camouflage. It was argued that

the society itself is a religious trust and, thus, both stand on the same footing

and in that view of the matter, the suit will not be maintainable.

The learned counsel would further submit that a finding of fact had

been arrived at by the Court of Appeal that the Brethren Church had not

ceased to exist, this Court should not interfere therewith.

Mr. M.N. Shroff, the learned counsel appearing on behalf of the

Charity Commissioner, adopted the submission of Mr. Ahmadi and would

further contend that the substantial issue before the learned Civil Judge was

as to whether the Brethren Church which was registered as trust had ceased

to exist and/or stood dissolved or not.

SOCIETIES REGISTRATION ACT, 1860

The Societies Registration Act was enacted, as it was found expedient

that provisions should be made for improving the legal condition of societies

established for the promotion of literature, science, or the fine arts, or for the

diffusion of useful knowledge, the diffusion of political education and for

charitable purposes.

Section 2 of the Societies Registration Act provides for memorandum

of association which, inter alia, must contain the name of the society and the

objects of the society. A society which is formed for charitable purpose may

also carry on its activities. The words 'charitable purposes' includes

religious purposes. Section 4 provides for annual list of managing body to

be filed stating names, addresses and occupations of the governors, council,

directors, committee, or other governing body then entrusted with the

management of the affairs of the society.

In terms of Section 5, the property of a society both movable and

immovable, if not vested in the trustees, would be deemed to have vested,

for the time being, in the governing body of such society. A suit by or

against the society is to be filed in the name of the President, Chairman or

Principal Secretary or trustees of such society as may be determined by the

rules and regulations thereof.

Section 13 of Societies Registration Act provides for dissolution of

societies and adjustment of their affairs. It reads as under:

"13. Provision for dissolution of societies and

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adjustment of their affairs \026 Any number not less

than three-fifths of the members of any society

may determine that it shall be dissolved, and

thereupon it shall be dissolved forthwith, or at the

time then agreed upon, and all necessary steps

shall be taken for the disposal and settlement of the

property of the society, its claims and liabilities

according to the rules of the said society applicable

thereto, if any, and if not, then as the governing

body shall find expedient, provided that, in the

event of any dispute arising among the said

governing body or the members of the society, the

adjustment of its affairs shall be referred to the

principal Court of original civil jurisdiction of the

district in which the chief building of the society is

situate; and the Court shall make such order in the

matter as it shall deem requisite:

Assent required \026 Provided that no society shall be

dissolved unless three-fifths of the members shall

have expressed a wish for such dissolution by their

votes delivered in person or by proxy, at a general

meeting convened for the purpose:

Government consent \026 Provided that whenever any

Government is a member of, or a contributor to, or

otherwise interested in any society registered under

this Act, such society shall not be dissolved

without the consent of the Government of the State

of registration."

BOMBAY PUBLIC TRUSTS ACT

The BPT Act, on the other hand, was enacted to regulate and to make

better provision for the administration of public religious and charitable

trusts in the State of Bombay.

Section 2 is the interpretation clause. Section 2 (10) defines "person

having interest" to include in the case of a society registered under the

Societies Registration Act, 1860 any member of such society. Section 2(13)

defines "public trust" to mean "an express or constructive trust for either a

public religious or charitable purpose or both and includes a temple, a math,

a wakf, a dharmada or any other religious or charitable endowment and a

society formed either for a religious or charitable purpose or for both and

registered under the Societies Registration Act, 1860. A "trustee" has been

defined to mean a person in whom either alone or in association with other

persons, the trust property is vested and includes a manager.

Section 3 provides for establishment of the office of the Charity

Commissioner for the purpose of superintending the administration as also

carrying out the provisions of the Act subject to such general or special

orders as the State Government may impose. Section 3A provides for the

appointment of Joint Charity Commissioners. Section 5 provides for the

appointment of Deputy and Assistant Charity Commissioners.

Section 9 occurring in Chapter III of the Act defines charitable

purposes inter alia to include relief of poverty or distress, education, medical

relief and the advancement of any other object of general public utility but

would not include a purpose which relates exclusively to sports, or

exclusively to religious teaching or worship. Section 10 contains a non-

obstante clause in terms whereof a public trust shall not be void only on the

ground that the persons or objects for the benefit of whom or which it is

created are unascertained or unascertainable. Section 11 provides that the

public trust created for purposes some of which are charitable or religious

and some of which are not shall be void in respect to the charitable or

religious purpose only on the ground that it is void with respect to the non-

charitable or non-religious purpose.

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Section 13 reads as under:

"13. If any public trust is created for a specific

object of a charitable or religious nature or for the

benefit of a society or institution constituted for a

charitable or religious purpose, such trust shall not

be deemed to be void only on the ground \026

(a) that the performance of the specific object

for which the trust was created has become

impossible or impracticable, or

(b) that the society or institution does not exist

or has ceased to exist, notwithstanding the fact that

there was no intent for the appropriation of the

trust property for a general charitable or religious

purpose."

Chapter IV of the Act provides for registration of public trusts. The

said Chapter makes the registration of public trust compulsory. Section 17

ordains keeping and maintenance of such books, indices and other registers

as may be prescribed in every Public Trusts Registration Office or Joint

Public Trusts Registration Office. Such books, indices and registers would

contain such particulars as may be prescribed. Section 18 imposes a duty

upon the trustee of a public trust to make an application for the registration

of the public trust in writing and would contain such particulars as

mentioned in Sub-section (5) of Section 18. Clause (iii) of Sub-section (5)

of Section 18 provides that the list of the movable and immovable trust

property and such descriptions and particulars as may be sufficient for the

identification thereof shall be stated as and when such application for

registration of the trust is filed. Section 19 provides for an Inquiry for

registration for the purpose of ascertaining:

"(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,

(iv) the names and addresses of the trustees and

manager of such trust,

(v) the mode of succession to the office of the

trustee of such trust,

(vi) the origin, nature and object of such trust,

(vii) the amount of gross average annual

income and expenditure of such trust, and

(viii) any other particulars as may be prescribed

under sub-section (5) of section 18."

Section 20 provides for recording of the findings by the Deputy or

Assistant Charity Commissioner on completion of an inquiry provided for

under Section 19. On completion of such an inquiry in accordance with the

findings, the Deputy or Assistant Charity Commissioner is enjoined with the

duty to make entry in such register in terms of Section 21 of the Act; Sub-

section (2) whereof provides that such entries shall be final and conclusive.

Section 22 provides for the change which may occur in any of the entries

recorded in the register kept under Section 17 to make an appropriate

application within 90 days from the date of the occurrence of such change.

Sub-section (1A) of Section 22 reads thus:

"(1A) Where the change to be reported under sub-

section (1) relates to any immovable property, the

trustee shall, alongwith the report, furnish a

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memorandum in the prescribed form containing

the particulars (including the name and description

of the public trust) relating to any change in the

immovable property of such public trust, for

forwarding it to the sub-registrar referred to in sub-

section (7) of section 18."

Sub-section (2) of Section 22 empowers a Deputy or Assistant Charity

Commissioner to hold an inquiry for the purpose of verifying the correctness

of the entries in the register kept under Section 17 or ascertaining whether

any change has occurred in any of the particulars recorded therein. In the

event, a change is found to have occurred in any of the entries recorded in

the register kept under Section 17, the Deputy or Assistant Charity

Commissioner is required to record a finding with the reasons therefor to

that effect. Such an order is appealable to the Charity Commissioner. By

reason of changes which have been found to have occurred, the entries in the

register are required to be amended. Such amendment on the occurrence of

change is final and conclusive. Section 22A empowers the Deputy or

Assistant Charity Commissioner to hold further inquiry. Section 30 creates

a legal fiction as regard notice on the part of a person acquiring immovable

property of the relevant particulars relating to such trust entered in the

register in relation to any property belonging to a public trust. Section 31

creates a bar to hear or decide suits in the following terms:

"31(1) No suit to enforce a right on behalf of a

public trust which has not been registered under

this Act shall be heard or decided in any Court.

(2) The provisions of sub-section (1) shall apply to

a claim of set off or other proceeding to enforce a

right on behalf of such public trust."

Chapter V provides for the Accounts and Audit. Section 36 bars

alienation of immovable property of public trust without the previous

sanction of the Charity Commissioner. In the event, such previous sanction

is not granted, an appeal thereagainst is maintainable before the Gujarat

Revenue Tribunal.

Chapter VI provides for the control of the charitable or religious trusts

and for the said purpose in terms of Section 37 the Charity Commissioner is

empowered to:

"(a) to enter on and inspect or cause to be entered

on and inspected any property belonging to a

public trust;

(b) to call for or inspect any extract from any

proceedings of the trustees of any public trust and

any books of accounts or documents in the

possession, or under the control, of the trustees or

any person on behalf of the trustees;

(c) to call for any return, statement, account or

report which he may think fit from the trustees or

any person connected with a public trust;"

Sub-section (2) of Section 37 enjoins a duty upon every trustee to

afford all reasonable facilities to any officer exercising any of the powers

under sub-section (1). Section 41A empowers the Charity Commissioner to

issue directions to the trustee and other persons to ensure that trust is

properly administered and the income thereof is properly accounted for or

duly appropriated and applied to the objects and for the purposes of the trust.

Chapter VII provides for the functions and powers of Charity

Commissioner other than those referred to in the other Chapters. Section 47

provides for the appointment of a new trustee when one or the other

conditions specified therein is satisfied. Section 50 provides for suits

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relating to public trusts which reads as under:

"50. In any case \026

(i) where it is alleged that there is a breach of a

public trust,

(ii) where a direction is required to recover

possession of a property belonging to a public trust

or the proceeds thereof or for an account of such

property or proceeds from any person including a

person holding adversely to the public trust, or

(iii) where the direction of the court is deemed

necessary for the administration of any public

trust,

the Charity Commissioner after making such

enquiry as he thinks necessary or two or more

persons having an interest in the trust and having

obtained the consent in writing of the Charity

Commissioner as provided in section 51 may

institute a suit whether contentions 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 \026

(a) an order for the recovery of the possession

of such property or proceeds thereof,

(b) the removal of any trustee or manager,

(c) the appointment of a new trustee or

manager,

(cc) vesting any property in a trustee,

(d) a direction for taking accounts and making

certain inquiries,

(e) 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,

(f) a direction authorizing the whole or any part

of the trust property to be let, sold, mortgaged or

exchanged,

(g) the settlement of a scheme or variations or

alterations in a scheme already settled, or

(h) granting such further or other relief as the

nature of the case may require;

Provided that no suit claiming any of the reliefs

specified in this section shall be instituted in

respect of any public trust except in 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."

Sections 51, 79 and 80 read as under:

"51(1) If the persons having an interest in any

public trust intend to file a suit of the nature

specified in section 50, they shall apply to the

Charity Commissioner in writing for his consent.

The Charity Commissioner, after hearing the

parties and after making such inquiry as he thinks

fit, may within a period of six months from the

date on which the application is made, grant or

refuse his consent to the institution of such suit.

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The order of the Charity Commissioner refusing

his consent shall be in writing and shall state the

reasons for the refusal.

(2) If the Charity Commissioner refuses his

consent to the institution of the suit under sub-

section (1) the persons applying for such consent

may file an appeal to the Bombay Revenue

Tribunal constituted under the Bombay Revenue

Tribunal act, 1939, in the manner provided by this

Act.

(3) In every suit filed by persons having interest

in any trust under section 50, the Charity

Commissioner shall be a necessary party.

(4) Subject to the decision of the Bombay

Revenue Tribunal in appeal under section 71, the

decision of the Charity Commissioner under sub-

section (1) shall be final and conclusive."

"79. (1) Any question whether or not a trust exists

and such trust is a public trust or particular

property is the property of such trust, shall be

decided by the Deputy or Assistant Charity

Commissioner or the Charity Commissioner in

appeal as provided by this Act.

(2) The decision of the Deputy or Assistant Charity

Commissioner or the Charity Commissioner in

appeal, as the case may be, shall, unless set aside

by the decision of the court on application or of the

High Court in appeal, be final and conclusive."

"80. Save as expressly provided in this Act, no

civil court shall have jurisdiction to decide or deal

with any question which is by or under this Act to

be decided or dealt with by any officer or authority

under this Act, or in respect of which the decision

or order of such officer or authority has been made

final and conclusive."

Having noticed the statutory scheme of the said Act, we may consider

the provisions of Section 26 thereof which is relevant for the purpose of this

case, which is as under:

"26. Any Court of competent jurisdiction deciding

any question relating to any public trust which by

or under the provisions of this Act is not expressly

or impliedly barred from deciding shall cause copy

of such decision to be sent to the Charity

Commissioner and the Charity Commissioner shall

cause the entries in the register kept under section

17 to be made or amended in regard to such public

trust in accordance with such decision. The

amendments so made shall not be altered except in

cases where such decision has been varied in

appeal or revision by a court of competent

jurisdiction. Subject to such alterations, the

amendments made shall be final and conclusive."

JURISDICTION OF CIVIL COURT \026 Principles for determination:

The question as regard ouster of a jurisdiction of a Civil Court must

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be construed having regard to the Scheme of the Act as also the object and

purport it seeks to achieve. The law in this regard is no longer res integra.

A plea of bar to jurisdiction of a civil court must be considered having

regard to the contentions raised in the plaint. For the said purpose,

averments disclosing cause of action and the reliefs sought for therein must

be considered in their entirety. The Court may not be justified in

determining the question, one way or the other, only having regard to the

reliefs claimed de'hors the factual averments made in the plaint. The rules

of pleadings postulate that a plaint must contain material facts. When the

plaint read as a whole does not disclose material facts giving rise to a cause

of action which can be entertained by a civil court, it may be rejected in

terms of Order 7, Rule 11 of the Code of Civil Procedure.

In Dhulabhai and Others vs. The State of Madhya Pradesh and

Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the following

principles relating to the exclusion of jurisdiction of civil courts :

(a) Where the statute gives a finality to the orders of the special tribunals,

the civil court's jurisdiction must be held to be excluded if there is

adequate remedy to do what the civil courts would normally do in a

suit. Such provision, however, does not exclude those cases where the

provisions of the particular Act have not been complied with or the

statutory tribunals has not acted in conformity with the fundamental

principles of judicial procedure.

(b) Where there is an express bar of the jurisdiction of the court, an

examination of the scheme of the particular Act to find the adequacy

or the sufficiency of the remedies provided may be relevant but is not

decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion, the examination of the

remedies and the scheme of the particular Act to find out the

intendment becomes necessary and the result of the inquiry may be

decisive. In the latter case, it is necessary to see if the statute creates a

special right or a liability and provides for the determination of the

right or liability and further lays down that all questions about the said

right and liability shall be determined by the tribunals so constituted,

and whether remedies normally associated with actions in Civil

Courts are prescribed by the said statute or not.

(c) Challenge to the provisions of the particular Act as ultra vires cannot

be brought before tribunals constituted under that Act. Even the High

Court cannot go into that question on a revision or reference from the

decision of the tribunals.

(d) When the provision is already declared unconstitutional or the

constitutionality of any provision is to be challenged, a suit is open. A

writ of certiorari may include a direction for refund if the claim is

clearly within the time prescribed by the Limitation Act but it is not a

compulsory remedy to replace a suit.

(e) Where the particular Act contains no machinery for refund of tax

collected in excess of constitutional limits or illegally collected, a suit

lies.

(f) Questions of the correctness of the assessment, apart from its

constitutionality, are for the decision of the authorities and a civil suit

does not lie if the orders of the authorities are declared to be final or

there is an express prohibition in the particular Act. In either case, the

scheme of the particular Act must be examined because it is a relevant

enquiry.

(g) An exclusion of the jurisdiction of the civil court is not readily to be

inferred unless the conditions above set down apply.

[See also Rajasthan State Road Transport Corporation and Another vs.

Krishna Kant and Others \026 (1995) 5 SCC 75, Dwarka Prasad Agarwal vs.

Ramesh Chand Agarwal - (2003) 6 SCC 220, Sahebgouda vs. Ogeppa

(2003) 6 SCC 151, Dhruv Green Field Ltd. vs. Hukam Singh (2002) 6 SCC

416 and Swamy Atmananda & Ors. Vs. Sri Ramakrishna Tapovanam & Ors,

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[2005 (4) SCALE 116].

The same, however, would not mean that in a given case if the court

has the jurisdiction to determine a part of the relief claimed, it will not

confine itself thereto and reject the plaint in its entirety. For the purpose of

determination of question as to whether the suit is barred, the averments

made in the plaint are germane. [See Sopan Sukhdeo Sable and Others Vs.

Assistant Charity Commissioner and Others, (2004) 3 SCC 137]

ANALYSIS OF BPT ACT:

The BPT Act is a special law. It confers jurisdiction upon the Charity

Commissioner and other authorities named therein. The statute has been

enacted by the Parliament in public interest to safeguard the properties

vested in the trusts as also control and management thereof so that the trust

property may not be squandered or the object or purport for which a public

trust is created may not be defeated by the persons having control thereover.

A society may be created either for charitable or religious purposes as also

for other purposes. A society registered under the Societies Registration Act

is not a juristic person. It cannot own any property. The properties

belonging to a society admittedly vest in the trustees. In terms of Section

2(13) of the BPT Act, a society is also a charitable trust. Both the Acts are

regulatory in nature. The object and purport of both the Acts are clear and

the provisions thereof do not contain any obscurity. It has not been argued

before us, as was done before the learned Trial Judge, that there exists any

inconsistency between the provisions of the Societies Registration Act which

is a Parliamentary Act, on the one hand, and the BPT Act, which is a State

Act, on the other. The core question which had been raised before us is as to

whether the Society managing or governing the trust having a separate

entity; in relation to its affairs the jurisdiction of the civil court is barred.

ANALYSIS OF THE AVERMENTS MADE IN THE PLAINT

With a view to determine the said question it is necessary to consider

the averments made in the plaint.

The Brethren Church has its history which has been traced in

paragraph 1 of the plaint. Paragraph 2 speaks of registration of the church

under the Societies Registration Act in the year 1944 and registered under

BPT Act after the same came into force.

It has been averred that the resolution of the Brethren Church affirmed

that C.N.I. would be deemed to be legal continuation and successor of the

Brethren Church and rights, title, claims, estates and interest of this Church

together with its privileges and obligations shall, as from the date of

inauguration, vest in C.N.I. as its legal heir. The Church, thus, ceased to

exist as separate entity both as a society and as a trust. Although it is

contended that, as provided in the constitution of C.N.I., the Church of North

India Trust Association came to be registered as a company under the

provisions of the Companies Act in the year 1976 but if the vesting had

already taken place in C.N.I. as far back as in the year 1970, the question of

trust property vesting in a company would not arise.

The records do not show that the said company had ever taken any

decision as regard control and management of the Trust and/ or had dealt

with the properties belonging to the Brethren Church.

It is also not in dispute that local churches or congregations which

desired to function on the basis of the old constitution were at liberty to do

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so till the 3rd Ordinary Synod of C.N.I. which was to be held in 1977.

According to the plaintiffs, most of the churches or congregations

under the Gujarat Diocesan Council implemented the said chapter. The

church or congregation at Valsad although decided to adopt the said

constitution, but it is contended that in the intervening period the property

Committee (Property Trust Board) of the former Brethren Church continued

to manage the properties, estate, etc. of Valsad Church as an agent of and on

behalf of the Gujarat Diocesan Council.

The defendant Nos. 1 to 4 who were residents of Valsad and Navsari;

took exceptions to the decision of the Synod to terminate the interim period

with effect from 7th October, 1977 and held a meeting on 12th November,

1978.

A resolution had been adopted by the said defendants along with

others asserting that their independent unit would hold all the movable and

immovable properties, deposit in a bank and cash in hand of the church in its

properties wherefor a special committee was constituted.

The defendant Nos. 2 to 4 are said to the members of the said

committee and defendant No. 1 claims to be the Pastor of the Brethren

Church. Admittedly, a decision of the executive committee of the Gujarat

Diocesan Council taken by it at its meeting held on 11th November, 1978

was stated to be illegal by the defendant Nos. 1 to 4. It is averred:

"The defendants Nos. 1 and 2 also claim to be the

Treasurer and Secretary respectively of the said

"Valsad Brethren Church". These dissidents are

acting in the name of the former Brethren Church

and have been writing letters as office bearers of

former Brethren Church to the Valsad District

Co-operative Bank, the Ankleshwar Branch of

the Broach District Central Co-operative Bank

etc., asking them not to deal with the members of

the legally constituted Pastorate committee of

Ankleshwar and Valsad and asserting that they

are the only persons legally entitled to deal with

the financial affairs of the Ankleshwar and

Valsad Pastorates. Besides, defendant No. 2,

styling as a secretary of Brethren Church has

complained to the authorities that the 20 local

Pastorates under the Gujarat Diocesan Council

do not function in the name of Brethren Church

and do not collect funds in the name of the

Brethren Church. A similar complaint was made

by him to the Assistant Charity Commissioner

Broach who had the matter inquired into. The

defendant No. 2, again, purporting to act as a

Secretary of the Valsad Brethren Church, wrote a

letter on 20th June, 1979 to the legally elected

Treasurer of the Ankleshwar church challenging

the latter's authority to act as such Treasurer.

The defendant No. 3 and some of his associates

residing at Jalapore, Taluka Navsari, District

Valsad, have issued a statement dated 8th July,

1979 declaring their intention to sever all their

connections with C.N.I. and to function as an

independent unit with effect from 15th July, 1979

in the name of Brethren Church, Jalalpore. By

the said statement, the members of the C.N.I. at

Jalalpore have been directed not to use or occupy

the church."

The aforementioned action on the part of the defendant Nos. 1 to 4

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and their associates was the subject matter of the suit.

In the aforementioned context, the plaintiffs had questioned the

actions and/ or activities of the defendant Nos. 1 to 4 and other dissidents

insofar as they tend to prevent or hinder the plaintiffs and other members of

the Pastorate from acting under and in accordance with the said decisions

and resolutions of the Gujarat Diocesan Council and the constitution of

Synod violate and infringe the legal rights of these persons to do so and are

illegal.

The Appellant herein was joined as defendant No. 5 in the said suit,

although no relief had been claimed against the original defendant No. 5

who is the Appellant before us. The status of the defendant No. 5 has not

been disclosed in the plaint. The legal status of Church of North India has

not been disclosed in the plaint.

It is accepted that the defendant No. 5 \026 Appellant has got itself

registered as a trust only in the year 1980. It also stands admitted that a

change report has been filed by the Appellant before the Commissioner of

Charity in the year 1981.

We have noticed hereinbefore that as regard the correctness or

otherwise of functioning of the congregation of Ankleshwar and Valsad had

been the subject matter of complaints before the authorities under the BPT

Act.

One of the causes of action for instituting the suit is said to be

constitution of a special committee by the defendant Nos. 1 to 4; resolution

dated 12th November, 1978 was passed and the obstructions created by them

to the plaintiffs and other members of the Pastorates through the actions of

the Plaintiffs and other members of the Pastorates in the name of the former

Brethren Church.

The plaintiffs made their position clear when they categorically stated

in paragraph 21 that the suit inter alia involved questions as to the rights of

property of the former Brethren Church.

In the aforementioned premise, plaintiffs had prayed for the following

reliefs:

"(a) It may please be declared that the former First

District Church of Brethren has ceased to exist.

(b) It may please be declared that the Church of

North India is the legal continuation and successor

of the said First District Church of Brethren

together with the right, title, claim, interest in or

over its properties and the constitution, decisions

and resolutions of the Church of North India, its

Synod and Gujarat Diocesan Council are binding

on all the Pastorates on Gujarat which were

functioning as local Churches or congregations

under the First District Church of Brethren.

(c) The defendants No. 1 to 4 and their associates

may be restrained by a perpetual injunction from

acting in any manner contrary to the constitution,

decisions and resolutions of the church of North

India its Synod and Gujarat Diocesan Council and

from obstructing in any manner the plaintiffs and

other members/ office bearers of these pastorates

under the Church of North India in acting in

accordance with the said constitution, decisions

and resolutions and in their use, enjoyment and

possession of the Churches and their properties.

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(d) The defendants No. 1 to 4 and their associates

may be restrained from acting in the name of the

First District Church of Brethren and from

collecting funds, donations, etc. in that name.

(e) The defendants Nos. 1 to 4 may be directed to

pay to the plaintiffs the costs of this suit."

DETERMINATION:

The plaint nowhere suggests that the society and the trust had ever

been treated as two different entities. No case has been made in the plaint to

the effect that the society as registered under the Societies Registration Act

plays any role or discharges any function which is not done by the trustees

of the trust. It also does not appear from a perusal of the plaint that the

society and the trust comprises of different persons or for different functions

to perform. In fact in paragraph 2 of the plaint it is accepted that the Church

which was registered as a society under the Societies Registration Act was a

public trust as defined under Section 2(13) of the BPT Act. The ownership

of movable and immovable properties at the places mentioned in the plaint is

referable to the congregations under the Brethren Church. It is not alleged

that whereas the properties belong to the trust it was managed by the society.

The plaint furthermore does not disclose that the decision as regard

dissolution of the churches and congregation of Brethren Church had been

taken by anybody other than the trustees. The committees constituted for the

aforementioned purpose, viz., Continuation Committee and Negotiating

Committee, evidently were represented by the authorities of the

congregations and not of any society. A decision, as would appear from the

averments made in paragraph 6 of the plaint, to dissolve six uniting

Churches and merge the same into one, viz., the Church of Northern India

(C.N.I.) so as to make the latter a legal continuation and successor of the

United Churches and all the properties, assets, obligations, etc. of these

uniting churches would vest in or dissolve on C.N.I. The very fact that a

decision having been taken as regard the properties, assets, obligations of the

United Churches, the same would mean that they would vest in the trust to

be created for the said purpose and not for the benefit of any society.

We are not oblivious of the fact that the Resolution adopted in the

meeting held on 17th February, 1968 allegedly fulfilled all the requirements

for such resolution as provided in the Societies Registration Act but it is now

beyond any controversy that the society having not owned any property,

their transfer in favour of a new society was impermissible in law. In terms

of Section 5 of the Societies Registration act, all properties would vest in the

trustees and only in case in absence of vesting of such properties in trustees

the same would be deemed to have been vested for the time being in the

governing body of such property. In this case, it is clear that the properties

have vested in the trustees and not in the governing body of the society.

There is nothing on record to show that the concerned churches were

being managed by the societies registered under the Societies Registration

Act. In any event, it stands accepted that the dispute as regard dissolution of

societies and adjustment of their affairs should have been referred to the

principal court of original civil jurisdiction.

The suit in question also does not conform to the provisions of Section

13 of the Societies Registration Act.

Section 20 of the Act provides that the societies enumerated therein

can only be registered under the said Act.

Unless a suit is filed in terms of Section 13 of the Act, the Society is

not dissolved. Even assuming that the society stands dissolved in terms of

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its Memorandum of Association and Articles of Association, the same would

not ipso facto mean that the properties could be adjusted amongst the

members of the society in terms of the provisions of the said Act.

Concededly, the properties of the trust being properties of the religious trust

had vested in such trust. Such a provision, we have noticed hereinbefore,

also exist in the BPT Act. Thus, only because the society has been

dissolved, ipso facto the properties belonging to the trust cannot be said to

have been adjusted. The Appellants, thus, we have noticed hereinbefore,

have averred in the plaint that the suit relates to the property of the trust and

their administration. If the properties of the churches did not belong to the

society, the Appellant herein cannot claim the same as their successor. The

plaint has to be read meaningfully. So done, it leads to the only conclusion

that the dispute was in relation to the management of the churches as

religious trust and not as a society. Even if it is contended that the

administration of the property would mean the properties of the Brethren

Church both as a trust and as a society, still then having regard to the legal

position, as discussed supra, the property belonging exclusively to the trust,

the suit will not be maintainable.

It is interesting to note that the Appellants themselves in grounds 1, 2,

4, 5 and 6 have categorically stated that both the society registered under the

Societies Registration Act and the trust registered under the BPT Act is only

one entity and that upon dissolution of a society the trust automatically

ceases and all that remains is to carry out the registration under the BPT Act

wherefor applications have been made before the Charity Commissioner.

The stand taken by the Appellants herein is unequivocal in nature. The Trial

Court also appears to have proceeded on that basis, as would appear from

Issue No. 4 framed by it which is as under:

"(4) Whether it is proved that the Brethren Church

was also dissolved and ceased to exist as a separate

entity as alleged?

The learned Trial Judge observed:

"Now, whether the First district Church of

Brethren has been legally dissolved in accordance

with the provisions of the Societies Registration

Act (Section 13) or whether it exists till today, can

only be decided by the Civil Court and such a

dispute cannot be decided by the Charity

Commissioner and as such, on this court also the

present Civil Court is the only competent Court to

decide the suit of the present nature. Apart from

this, the strange consequence would follow if it

were to be held that the question of dissolution of

the First District Church of Brethren as a society

can be decided by the Civil Court but the question

of dissolution of it as a trust cannot be decided by

the Civil Court because the First District Church of

Brethren is only the on institution and in its dual

capacity viz. the society as well as the trust. Apart

from this, even if it is assumed for the sake of an

argument that the jurisdiction of the dispute is to

be divided in two parts, then in that case, there is

every possibility of conflicting decisions by the

Civil Court and the Charity Commissioner and this

would lead to anomaly."

The Trial Court, however, proceeded to determine the issue on the

premise that there exists an apparent conflict between the Societies

Registration Act and the BPT Act holding that as regard question of

jurisdiction of the civil court, the provisions of the BPT Act to the extent of

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repugnancy would be inoperative.

The finding of the learned Trial Judge on that count is apparently

wrong. The learned counsel for the Appellants also did not raise any

contention before us that having regard to the provisions contained in Article

254 of the Constitution of India, the provisions of the Societies Registration

Act shall prevail over the BPT Act.

In fact the Appellants have categorically admitted that the

Memorandum of Association of the Society itself became the deed of trust.

It also stands admitted that only with a view to have one body to administer

and manage the properties, the trust so created by the society was also

registered. It is not a case where the trust was created for the benefit of the

society. Furthermore, there is nothing on record to show the mode and

manner of the management and control of the trust property. [See Board of

Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. State of Delhi

(Now Delhi Administration) and another, AIR 1962 SC 458, Dharam Dutt

and Others Vs. Union of India and Others, (2004) 1 SCC 712, para 52 and

Illachi Devi (Dead) By LRs. and Others Vs. Jain Society, Protection of

Orphans India and Others, (2003) 8 SCC 413, paras 21 and 22]

In Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar

[AIR 1965 SC 338], this Court did not permit a new question to be raised.

In this case also, a new contention has been raised contrary to the pleadings

that the society and the trust are different entities.

We have noticed hereinbefore that the BPT Act provides for finality

and conclusiveness of the order passed by the Charity Commissioner in

Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2).

In view of the decision of this Court in Dhulabhai (supra) such finality

clause would lead to a conclusion that civil court's jurisdiction is excluded if

there is adequate remedy to do what the civil courts would normally do in a

civil suit. In this case, we are not concerned with a dispute as regard

absolute title of the trust property. We are also not concerned with the

question as regard creation of any right by the trust in a third party which

would be otherwise beyond the jurisdiction of the Charity Commissioner. It

is also not a case where the plaintiffs made a complaint that the provisions of

the BPT Act were not complied with or the statutory tribunal had not acted

in conformity with the fundamental principles of judicial procedure. In fact

no order has been passed on the Appellant's application for changes in the

entries made in the registers maintained under Section 17 of the Act. The

BPT Act provides for express exclusion of the jurisdiction of the Civil

Court. It in various provisions contained in Chapter IV a power of inquiry

and consequently a power of adjudication as regard the list of movable and

immovable trust property, the description and particulars thereof for the

purpose of its identification have been conferred. In fact, the trustee of a

public trust is enjoined with a statutory duty to make an application for

registration wherein all necessary descriptions of movable and immovable

property belonging to the trust including their description and particulars for

the purpose of identification are required to be furnished. Section 19

provides for an inquiry for registration with a view to ascertaining inter alia

the mode of succession to the office of the trustee as also whether any

property is the property of such trust. It is only when the statutory authority

satisfies itself as regard the genuineness of the trust and the properties held

by it, an entry is made in the registers and books, etc. maintained in terms of

Section 17 of the Act in consonance with the provisions of Section 21

thereof. Such an entry, it will bear repetition to state, is final and conclusive.

Changes can be brought about only in terms of Section 22 thereof.

A change notice having been given, it would now be for the

appropriate authority to consider the matter and if a change has occurred, a

finding is required to be arrived which must contain the reasons therefor.

The defendants are disputing that any such change in accordance with law

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was effected. An order passed by Deputy or Assistant Charity

Commissioner is appealable. Yet again, when an amendment is made in the

entry in the register, the same would be final and conclusive. Even a power

exists for holding a further inquiry.

Section 31 bars a suit to enforce a right on behalf of a public trust.

C.N.I. got itself registered as a public trust in the year 1981. A suit evidently

was filed by the plaintiffs in the year 1980 because C.N.I. was not then

entitled to file a suit. It may be true that the suit was filed under Order 1,

Rule 8 of the Code of Civil Procedure but therein the question as to whether

the Appellant herein, being a registered trust became entitled to the

properties of Brethren Church could not have been gone into. What is

prohibited is to enforce a right on behalf of a public trust. When the

plaintiffs intended to enforce a right on behalf of the Appellant, the suit was

evidently not maintainable.

Furthermore, the purported resolutions of the churches affiliated to the

Brethren Church and merger thereof with the Appellant, having regard to the

provisions of the Act was required to be done in consonance with the

provisions thereof. It is not necessary for us to consider as to whether such

dissolution of the churches and merger thereof in the Appellant would

amount to alienation of immovable property but we only intend to point out

that even such alienation is prohibited in law. The control and management

of the religious trusts vests in the Charity Commissioner. The trustees of the

Trust are statutorily enjoined with a duty to render all cooperation to the

Charity Commissioner. The directions issued by the Charity Commissioner

to the trustees are binding. Dissolution of a trust, it is not disputed, is a

matter which falls within the exclusive jurisdiction of the Charity

Commissioner.

Prayer (a) in the plaint is for a declaration. Such declaration cannot be

granted by a civil court as regard succession of the District Church of

Brethren as the same was a religious trust registered under the BPT Act.

Prayer (b) of the plaint also could not have been granted, as the

question as to whether the applicant is the legal continuation and successor

of the First District Church of Brethren is a matter which would fall for

exclusive determination of Charity Commissioner keeping in view the

provisions of the deed of trust as regard its succession. It would necessarily

follow that whether the First Appellant became a legal successor of the

properties held by the First District Church of Brethren could not also have

been granted. The decision and resolution purported to have been adopted

by the Synod and Gujarat Diocesan Council are binding on all churches or

not would again be a question which could have been gone into by the

Charity Commissioner as the same had direct bearing not only with the

administration and management of the Church registered with it but also

related to the properties held by it. Such a decision of the Charity

Commissioner is again final and conclusive subject to the decision of the

appellate authority, viz., Bombay Revenue Tribunal.

Grant of prayer (c) for perpetual injunction would also give rise to

adjudication on the question as to whether the Appellant herein had the legal

right to own the properties of the First District Church of Brethren and

administer or manage the same although at the relevant time it was not

registered trust and although no amendment had been effected in the

registers and books maintained by the Charity Commissioner in terms of

Section 17 read with Sections 21 and 22 of the Act. The plaintiffs with a

view to obtain an order of injunction furthermore were required to establish

that they could file a suit for enforcement of right of the Appellant as a

religious trust and such a legal right vests either in the plaintiff or in the

Appellant herein indirectly. Such a prayer, related to the possession of the

property, comes squarely within the purview of the BPT Act. If the question

as regard 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 been filed before the Charity Commissioner he was required to

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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, a suit could have been filed in

terms of Section 51 of the Act. In the event of refusal to give consent, the

persons interested could have preferred an appeal.

Yet again the question as regard existence of a trust is a matter which

squarely falls within the purview of Section 79 of the Act.

We have no doubt in our mind that the Charity Commissioner was

impleaded as a party at a later stage of the suit only with a view to fulfill the

requirements of Sub-section (3) of Section 50 of the Act.

In Virupakshayya Shankarayya Vs. Neelakanta Shivacharya

Pattadadevaru [1995 Supp (2) SCC 531], this Court categorically held that

the suit for recovery of possession of property as validly appointed

Mathadhipati is hit by Sections 50 and 51 of the Act. The matter might have

been different if the suit was not for declaration or injunction in favour or

against the public trust or where the plaintiffs are not beneficiaries either.

Narmadabai and Another Vs. Trust Shri Panchvati Balaji Mandir and

Others [1995 Supp (3) SCC 676] was a case where a suit for injunction was

filed for restraining the defendants from interfering with the implementation

of the scheme for better management and administration of the public trust

settled by the Charity Commissioner. In that view of the matter, it was held

that a suit was not required to be filed in conformity with the provisions of

Sections 50 and 51 of the Act.

In Shree Gollaleshwar Dev and Others vs. Gangawwa Kom Shantayya

Math and Others [(1985) 4 SCC 393], it was held:

"14. 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 persons 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 persons 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."

The provisions of the Act and the Scheme thereof leave no manner of

doubt that the Act is a complete code in itself. It provides for a complete

machinery for a person interested in the trust to put forward his claim before

the Charity Commissioner who is competent to go into the question and to

prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction

created under Section 80 of the Act clearly points out that a third party

cannot maintain a suit so as to avoid the rigours of the provisions of the Act.

The matter, however, would be different if the property is not a trust

property in the eye of law. The civil court's jurisdiction may not be barred

as it gives rise to a jurisdictional question. If a property did not validly vest

in a trust or if a trust itself is not valid in law, the authorities under the Act

will have no jurisdiction to determine the said question.

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With a view to determine the question as regard exclusion of

jurisdiction of civil court in terms of the provisions of the Act, the court has

to consider what, in substance, and not merely in form, is the nature of the

claim made in the suit and the underlying object in seeking the real relief

therein. If for the purpose of grant of an appeal, the court comes to the

conclusion that the question is required to be determined or dealt with by an

authority under the Act, the jurisdiction of the civil court must be held to

have been ousted. The questions which are required to be determined are

within the sole and exclusive jurisdiction of the authorities whether simple

or complicated. Section 26 of the Act must be read in that context as it

specifically refers to those questions wherewith a court of competent

jurisdiction can deal with and if the same is not expressly or impliedly

barred. Once a decision is arrived at, having regard to the nature of the

claim as also the reliefs sought for, that civil court has no jurisdiction,

Section 26 per force will have no application whatsoever.

We may at this stage notice the decisions relied upon by the learned

counsel for the parties.

In State of Madras Vs. Kunnakudi Melamatam and another [AIR 1965

SC 1570] a composite suit for injunction was filed claiming two different

reliefs, viz. (1) an injunction restraining the levy of contributions and audit

fees under Act II of 1927; and (2) an injunction restraining the levy of

contributions and audit fees under Act XIX of 1951. It was, in that context,

held that although the decision under Section 84(2) of Madras Hindu

Religious Endowments Act that an institution is outside the purview of the

Act, the demand of contribution as being not enforceable under the 1951 Act

was maintainable.

In Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru

Pattabhirami Reddi [AIR 1967 SC 781], this Court was concerned with a

question as to what constitutes an administration of religious property. In

that case, the provisions of the Act did not impose a total bar on the

maintainability of a suit in a civil court and having regard to that aspect of

the matter vis-`-vis Section 92 of the Code of Civil Procedure it was held

that Section 93 of Madras Hindu Religious and Charitable Endowments Act

would apply in the matter for which provision has been made in the Act and

would not bar the suit under the general law which do not fall within the

scope of any section of the Act. This decision instead of helping the

Appellant runs counter to their claim.

In Chiranjilal Shrilal Goenka (Deceased) Through LRs. Vs. Jasjit

Singh and Others [(1993) 2 SCC 507] it was held that in matters relating to

will the Probate Court has exclusive jurisdiction. The said decision was

rendered having regard to the fact that the decision of a probate court is a

judgment in rem and conclusive and binds not only the parties but also the

entire world.

In Rajasthan State Road Transport Corporation and Another Vs.

Krishna Kant and Others [(1995) 5 SCC 75], this Court following Dhulabhai

(supra) held that having regard to the provisions contained in the Industrial

Disputes Act and Industrial Employment (Standing Orders) Act, 1946, the

civil court will have no jurisdiction as enumerated in paragraph 35.

In Sahebgouda (Dead) By LRs. and Others Vs. Ogeppa and Others

[(2003) 6 SCC 151] the allegations made in the plaint showed that the only

right claimed by the Appellants was that of being ancestral pujaris of the

temple. They did not claim to be the trustees of any trust. No declaration

regarding the existence or otherwise of the trust or any particular property is

the property of such trust had been claimed and in that view of the matter, it

was held that the reliefs so claimed do not come within the purview of

Section 19 or Section 79 of the Act wherefor the Deputy or Assistant Charity

Commissioner will have the exclusive jurisdiction to hold an inquiry and

give a decision.

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Ramesh Chand Ardawatiwa Vs. Anil Panjwani [(2003) 7 SCC 350]

has no application in the present case as therein the Charity Commissioner

took a specific objection that the civil court's jurisdiction is barred

whereupon several additional issues were framed and determined.

In NDMC Vs. Satish Chand (Deceased) By LR. Ram Chand [(2003)

10 SCC 38], this Court clearly held that Sections 84 and 86 of the Punjab

Municipal Act, 1911 bar the jurisdiction of the civil court as the Act

provided a complete remedy to the party at plea as also a remedy by way of

an appeal.

In K. Shamrao and Others Vs. Assistant Charity Commissioner

[(2003) 3 SCC 563], this Court held:

"17\005Functions of the Assistant Charity

Commissioner are predominantly adjudicatory.

The Assistant Charity Commissioner has almost all

the powers which an ordinary civil court has

including power of summoning witnesses,

compelling production of documents, examining

witnesses on oath and coming to a definite

conclusion on the evidence induced and arguments

submitted."

In Yeshwantrao Laxmanrao Ghatge and Another Vs. Baburao Bala

Yadav (Dead) By LRs. [(1978) 1 SCC 669], this Court observed:

"8. Mr Datar placed reliance upon the decision of

the Bombay High Court in Dev Chavata v. Ganesh

Mahadeo Deshpande in order to take advantage of

Section 52-A of the Act. The ratio of the case has

to be appreciated in the background of the facts

found therein. The principles of law as enunciated

cannot be fully and squarely applied. But yet the

decision, if we may say so with respect, is correct.

This would be on the footing that the decision

given by the Assistant Charity Commissioner

under Section 79 read with Section 80 of the Act

was conclusive and final. He had exclusive

jurisdiction to decide the question as to whether

the suit land belonged to the trust. He had so

decided it on November 5, 1954. The suit was filed

on July 21, 1955. In that view, the High Court was

right in holding that a suit filed under Section 50 of

the Act was not barred under Section 52-A because

the decision of the Assistant Charity

Commissioner given in 1954 had declared the

property to be a trust property and which decision

was final."

In Suresh Ramniwas Mantri and another Vs. Mohd. Iftequaroddin s/o

Mohd. Badroddin [1999(2) Mh.L.J. 131] it was observed that a society

although formed either for religious or charitable purposes or for both cannot

be held to a public trust ipso facto although registered under the Societies

Registration Act unless it is registered also under the BPT Act as the

question whether such a trust was validly formed or not would come within

the purview of Sections 18, 19 and 20 of the BPT Act. In that case the

plaintiff was not registered as a public trust and in that situation it was held

that Section 80 would operate.

In Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and

others [2001(2) Mh.L.J. 512], a learned Single Judge of the Bombay High

Court held that a civil suit cannot be entertained only because a complicated

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questions of title has been raised.

In Keki Pestronji Jamadar and Another vs. Khodadad Merwan Irani

and Others [AIR 1973 (Bom) 130] the question was as to whether the

author of a trust was the lawful owner of the property of which he has

created the trust. The Full Bench of Bombay High Court held that the author

of the trust has no title over the property and Section 80 would not operate as

a bar.

In Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and

Sons and Others [(1994) 1 MhLJ 280] a question arose as regard power of a

co-trustee to delegate a matter relating to grant or determination of lease to

another co-trustee keeping in view of Section 47 of the Act which deprives

the trustee from delegating his office or any of his duties to a co-trustee or a

stranger unless conditions mentioned therein are complied with.

The principle enunciated in each of the decision laid down relate to

the fact situation obtaining therein. In each case indisputably the lis arose

for determination of a question relating to interpretation of one or the other

clause enumerated in different provisions of the BPT Act which come either

within the exclusive jurisdiction of the statutory authorities or otherwise.

The Civil Court will have no jurisdiction in relation to a matter whereover

the statutory authorities have the requisite jurisdiction. On the other hand, if

a question arises, which is outside the purview of the Act or in relation to a

matter, unconnected with the administration or possession of the trust

property, the Civil Court may have jurisdiction. In this case, having regard

to the nature of the lis, the jurisdiction of the Civil Court was clearly barred.

CONCLUSION:

Having given our anxious thought in the matter, we are of the opinion

that the suit has rightly been held to be not maintainable by the High Court

and, thus, the impugned judgments must be affirmed.

The applications for impleadment filed by various persons, in view of

the aforementioned findings, need not to be dealt with separately.

For the reasons aforementioned, we do not find any merit in this

appeal which is dismissed accordingly. No costs.