http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4

PETITIONER:

VIRUPAKSHAYYA SHANKARAYYA

Vs.

RESPONDENT:

NEELAKANTA SHIVACHARYA PATTADADEVARU

DATE OF JUDGMENT21/03/1995

BENCH:

HANSARIA B.L. (J)

BENCH:

HANSARIA B.L. (J)

RAMASWAMY, K.

CITATION:

1995 AIR 2187 1995 SCC Supl. (2) 531

JT 1995 (3) 513 1995 SCALE (2)315

ACT:

HEADNOTE:

JUDGMENT:

HANSARIA, J.:

1.The respondent-plaintiff has placed himself within two

horns of a bull and it is not possible for him to avoid

strike by one or the other. And the bull is no ordinary

one, as it has the backing and the blessings of no less

powerful a body than Privy Council of Jamkhandi State,

within whose territorial jurisdiction the suit property was

situate, for the recovery of which the respondent made his

claim by filing the present suit on 4.2.1954. It is a pity

that despite the case of the appellant-defendant having

received support from the Privy Council, he came to lose on

the same point, to start with, at the hand of Civil Judge.

The High Court, which ultimately upheld the view of the

Civil Judge, should not have allowed this piquant situation

to prevail.

2. The broad facts of the case at hand consist in filing

of the present suit by respondent No. 1 in 1954, seeking

possession of the suit property, as validly appointed

Padadayya (Mathadhipati) of the math at Jamkhandi. The

plaintiff claimed this property on the assertion that he had

been duly installed as Padadayya on 30.1.1994, as a

successor to Virupakshayya 1, who had died as early as 1903.

According to him, defendant Nos. 1 and 2 had not been duly

installed as Padadayyas; so also, one Shivalingayya, who

according to defendant No. 1 had been installed as Padadayya

in 1935 and had in turn nominated him as Padadayya in 1943.

There is no dispute at all between the parties that if

Shivalingayya had been validly nominated and installed a.,;

Padadayya, the plaintiff cannot succeed. And it is

precisely this aspect of the case which had come to be

decided in favour of Shivalingayya by the Privy Council in

an earlier litigation began by one Andanayya in 1934, to

which, of course, the present plaintiff was not a party,

but, according to him, it was the aforesaid Andanayya who

had installed him as Padadayya on 30.1.1944.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4

3.Now, If the present suit has to be regarded as one for

possession of suit property simpliciter, as is the prayer in

the plaint, it would be hit by Section 50 read with 51 of

the Bombay Public 'Trusts Act, 1950 (the Act). To save this

blow by the bull, Shri Wad, appearing for the respondent No.

1, first urged that the suit was, really not for possession

simpliciter but was for declaration of the status of the

plaintiff as Padadayya and prayer for possession may be

treated as consequential relief But, if the present be taken

as a suit for declaration, then it was hopelessly barred,

because the declaration sought is that the plaintiff had

become Padadayya after Virupakshayya had died in 1903. As

the suit was filed in 1954 it was apparently much beyond the

time. Faced with this situation, Shri Wad's effort was to

convince us that the suit is not hit by Sections 50 and 51

of the Act,

4. Let it be seen whether this contention can be accepted.

Section 50 of the Act deals with suits relating with public

trusts.

516

The relevant part of this section reads as under :

"In any case-

(i) xxx xxx xxx

(ii) where a declaration is necessary that

that a particular property is a property

belonging to a public trust or where a

direction is required to recover the pos-

session of such property or the property or

proceeds thereof from any person including a

person holding adversely to the public trust.

(iii) xxx xxx xxx

The Charity Commissioner or two or more

persons having obtained the consent in writing

of the Charity Commissioner as provided in

Section 51 may institute a suit..... to obtain

a decree for any of the following reliefs :

(a) an order for the recovery of the pos-

session of such property or proceeds thereof,

xxx xxx xxx

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 a provision thereof.

xxx xxx xxx"

(Emphasis ours)

5. Section 51 deals with giving of consent by the Charity

Commissioner for the institution of suit.

6. Shri Wad contends that clause (ii) applies only when

recovery of possession is sought from person holding it

adversely to the public trust, which is not the case at

hand. This contention is sought to be advanced on the basis

of what was held by this Court in Gollaleshwar Dev v.

Gangawwa KomShantayya Math, (1985) Suppl.3 SCR 646, in which

case the view taken by a Full Bench of the Mysore High Court

in case of the aforesaid parties as reported in AIR 1972

Mysore 1 was not approved.

7.The contention is misconceived, because in the aforesaid

case this Court was called upon to decide whether two or

more trustees of a public trust (the math at hand is also a

public trust), could file suit for possession of property

belonging to public trust from a person holding it adversely

to the trust. The Mysore High Court took the view that the

expression "a person having interest", of which mention has

been made in Section 51 (1), did not include the trustees,

because of the definition of this expression in Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4

2(10) of the Act. This Court, however, did not endorse the

view of the Full Bench by observing that the definition in

Section 2(10) was an inclusive one and there was no lawful

justification to exclude trustees from the same. As in that

case the suit was filed to recover possession from a person

holding adversely to the trust, about which also mention has

been made in clause (ii) of Section 50, it does not follow

that clause (ii) vasualises suit for recovery of possession

only from a person holding adversely to the public trust, as

it has clearly stated about recovery of possession "from any

person". According to us, this would include a person who

may not claim adversely to the public trust, as is the case

of defendant No. 1 in this case.

8. It is because of this factual and legal

517

position that we have stated that the plaintiff is within

two horns of the bull. If to take care of the restriction

imposed by Section 50 read with 51 of the Act, the nature of

the suit is sought to be changed to be one of declaration

with consequential relief of possession, it would be hit by

limitation.

9. The above apart, what is more material is that the

Privy Council of Jamkhandi State having held in an earlier

proceeding that Shivalingayya was duly nominated and

installed as Padadayya inasmuch as he had been so nominated

by Shankarayya before his marriage, which is the only ground

on which Shivalingayya's nomination has been held to be

vitiated in the present proceedings by the High Court, we

are of the frim view that the contrary conclusion arrived at

in the present proceedings in favour of plaintiff does not

deserve to be confirmed. It may be that principle of res

judicata has no application, despite what has been stated in

Explanation VI of Section II C.P.C., inasmuch as in the

earlier proceeding the present plaintiff was not a party and

Andarayya (the plaintiff therein) had not claimed possession

of the property as Padadayya but as Charanti contending that

as the office of Padadayya was lying vacant because of

invalidity in the nomination and the installation of

Shivalingayya, he had stepped into shoes of Padadayya.

There is, however, no denial that the foundation of the case

of Andanayya was the infrimity in the nomination and the

installation of Shivalingayya as Padadayya; and it is

precisely this which the Privy Council had not accepted.

10. In the aforesaid premises, the judgment of the Privy

Council, even though the same did not bind the plaintiff on

the principle of res judicata, was definitely a relevant

circumstance to be taken note of, because of what has been

stated in Section 42 of the Evidence Act. What we, however,

find is that the High Court had only referred to the earlier

decision without examining the question as to whether law

permitted a contrary view to be taken on the self same

issue. According to us, the issue having been finally

determined at the highest level, the same could not have

been re-examined, which exercise, to start with, was

undertaken even by a Civil Judge,

11. Shri Wad contends that even the defendents did not take

such a stand throughout the litigation, which is apparent

from the fact that they tried to establish their case de

novo by leading fresh evidence. Though this is so, we are

of the view that the defendents were wrongly advised and we

have to set right the dent caused to the decision of the

Privy Council. The only way available to is in this

proceeding to do so is to restore the view that taken by

that high powered Committee.

12. We hold that plaintiff could not have taken stand in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4

the present proceeding that Shivalingayya's nomination and

installation as Padadayya was invalid, which would render

his entire exercise futile and one akin to shadow boxing.

It may also be stated that his suit was either barred by

limitation or was hit by the provisions contained in Section

50 read with 51 of the Act.

13. We, therefore, allow the appeal, set aside the impugned

judgment of the High Court, with the result that the suit

filed by respondent No. 1 stands dismissed. In the

518

facts and circumstances of the case, we make no order as to

costs.

519