An ex-post-facto sanction granted by the Charity Commissioner to validate a sale of trust property without prior sanction is not a valid sanction and does not save the transaction.

Headnote:
PUBLIC TRUST - BOMBAY PUBLIC TRUST ACT, 1950 - SECTION 36 - SALE OF TRUST PROPERTY - PREVIOUS SANCTION OF CHARITY COMMISSIONER - EX-POST-FACTO SANCTION - VALIDITY - JURISDICTION OF CIVIL COURT TO DETERMINE VALIDITY OF EX-POST-FACTO SANCTION.
Fact of the Case:

Plaintiff purchased a suit house from Defendant No. 2, a public trust registered under the Bombay Public Trusts Act, 1950. Defendant No. 1, a relative of the original owner of the suit house, claimed ownership and denied the validity of the sale. The plaintiff amended his plaint to state that the sale was made with the permission and approval of the Charity Commissioner, obtained on 25-4-1974, after the sale-deed was registered on 26-9-1972. The trial court held that the ex-post-facto sanction was valid and saved the transaction.
Finding of the Court:

The High Court held that the ex-post-facto sanction granted by the Charity Commissioner was not a sanction at all in the eye of law and the transaction of sale was not valid. The court found that section 36 of the Act required the sanction to be prior to the transaction and did not empower the Charity Commissioner to accord an ex-post-facto sanction. The court also held that the Civil Court had jurisdiction to determine the validity of the ex-post-facto sanction as the Charity Commissioner had acted in violation of the provisions of the Act.
Issues: 1. Whether the sale of the suit property by Defendant No. 2 in favor of the plaintiff is illegal and void ab initio? 2. Whether the plaintiff proved that the pleas raised by Defendant No. 1 regarding the sanction of the Charity Commissioner to the suit transaction were finally and conclusively decided by the Charity Commissioner under the Bombay Public Trusts Act and hence this Court has no jurisdiction to decide the matter as averred in para 17 of the plaint?
Ratio Decidendi: 1. Section 36(1) of the Bombay Public Trusts Act, 1950 requires the sanction of the Charity Commissioner for the sale of immovable property belonging to a public trust, and such sanction must be obtained prior to the transaction. 2. The Charity Commissioner does not have the power to grant an ex-post-facto sanction to validate a transaction that was otherwise invalid for want of prior sanction. 3. The Civil Court has jurisdiction to determine the validity of an ex-post-facto sanction granted by the Charity Commissioner, as such sanction is ultra vires the powers of the Charity Commissioner and in violation of the provisions of the Act.
Final Decision: The High Court allowed the revision application, reversed the finding of the trial court on issue No. 9, and held that the issue should be answered in the affirmative. The trial court was directed to proceed with the suit in light of the finding on issue No. 9.

JUDGMENT - GINWALA A.A., J. : - This Revision Application has been filed against the finding recorded by the trial Court on the issue regarding the validity of the transaction of sale between the plaintiff and defendant No. 2. The facts leading to the present Revision Application shortly stated are as follows.

2. Non-applicant No. 1 has instituted the suit in the Court below against the applicant and non-applicant No. 2 as defendants Nos. 1 and 2 respectively, for a decree for possession of the suit house from defendant No. 1 along with Rs. 210 as damages for use and occupation from 26-9-1972 to 26-6-1973. The suit house originally belonged to defendant No. 2 which is admittedly a public trust registered under the Bombay Public Trusts Act, 1950(hereinafter referred to as the Act). The plaintiff purports to have purchased it from defendant No. 2 under a registered sale-deed on 26-9-1972. Defendant No 1 who is alleged to be in actual possession of the suit house is said to be a near relative of one Chuniyabai who is alleged to have bequeathed it to defendant No. 2. Thus according to the plaintiff, defendant No. 2 became owner of the suit house on the death of Chuniyabai on 29-7-1968. The plaintiff alleges that defendant No. 1 came to live in the suit house to perform the obsequial ceremonies on the death of Chuniyabai and unlawfully continues to occupy it. According to plaintiff the occupation of the defendant No. 1 is that of a licensee and he continued to occupy it, though his licence was revoked. Thus the plaintiff claims possession of the suit house on the basis of his title.

3. Defendant resisted the suit by raising several contentions with which we are not concerned in this Revision Application. The defendant No. 1 however denies that Chuniyabai had bequeathed the suit house to defendant No. 2 and that the latter had become full owner on her death. He claims that he came to reside in the suit house in 1960 at the instance of Chhabile Bhagat, the husband of Chuniyabai, to look after both of them in their old age. He says that he has been residing in the suit house openly and continuously “as a heir apparent” of Chhabile Bhagat since 1960 under the direction and wishes of the latter in his own right. In short, defendant No. 1 has set up his own title to the suit house. Defendant No. 1further contends that the sale of the suit house by defendant No. 2 in Favour of plaintiff is not valid in law. In this connection, inter alia, he contended that defendant No. 2 could not have sold the suit house to plaintiff without permission of the competent authority under the Act and hence, the alleged title of defendant No. 2 in respect of the suit house was never legal and perfect. It appears that in view of the contention taken by the defendant No. 2, the plaintiff amended his plaint and submitted that the sale has been effected by the defen dant No. 2 in his favour with the permission and approval of the Charity Commissioner, which was obtained on 25-4-1974. In his turn, defendant No. 1 further contended that the alleged ex-post-facto sanction granted by the Charity Commissioner was without jurisdiction and did not confer any right, title or interest in the plaintiff. In short, therefore, from these pleadings it would appear that when defendant No. 2 sold the suit house to plaintiff on 26-9-1972 it had not obtained any sanction as required under section 36 of the Act, but obtained it on 25-4-1974 after the sale-deed had been registered.

4. On these pleadings several issues are framed by the trial Court and issues Nos. 9 and 10 are as follows:

“9. Whether the defendant No. 1 prove that the sale of suit pro-perty by defendant No. 2 in favour of plaintiff is illegal and void ab initiol

10. Whether the plaintiff prove that the pleas raised by defendant No. 1 regarding sanction of Charity Commissioner to suit transaction were finally and conclusively decided by Charity Commissioner under Bombay Public Trusts Act and hence this Court has no jurisd

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