The petitioner in this petition under Articles 226 and 227 of the Constitution of India, has challenged the order dated 6th August, 2008, passed below application at Exh.149 by respondent No.1 Assistant Charity Commissioner in Inquiry Case No.221 of 2000, holding that the question of validity or otherwise of deed of declaration of trust dated 26-12-1964 can be examined by Civil Court only.

2. The petitioner is an intervener in the said inquiry proceeding and he moved that application at Exh.149 stating that he was grandson of Rai Saheb Seth Gopikisanji Agrawal and great grandson of Raibahadur Seth Govarhandasji Agrawal, who died intestate on 26-1-1988 at Nagpur. He contended that his grand-father Seth Gopikisanji Agrawal did not earn any thing, nor purchased any property from his own income and he was actually in possession of all properties owned by his father and grand-father. It was his contention that grand-father of Seth Gopikisanji Agrawal was big businessman, who earned a lot and said cash and ancestral properties earned by Shri. Toluramji then devolved upon his son Seth Gowardhandasji Agrawal. Said Seth Gowardhandasji purchased various immovable and movable properties and as he was issueless, he adopted Seth Gopikisanji. Said Seth Gopikisanji ultimately took over the possession of all ancestral and business property of his father and grand-father. Though Seth Gopikisanji developed these properties, all these properties were of joint Hindu Family and therefore, the properties could not have been used for trust purpose by him. It was his case that the alleged deed of declaration alleged to have been executed by Seth Gopikisanji Agrawal sometime in 1964 was, therefore, not correct. He also urged that the change report filed by the reporting trustee Shri. Maheshkumar Agrawal, wherein all ancestral property and undivided properties are shown as properties of the trust, is also, therefore, not correct. According to him, as all properties shown in alleged deed of declaration of trust dated 26-12-1964 are Hindu undivided properties, the deed of declaration itself was illegal and no title to those properties reached the trust. He contended, the trust was created in i964 and there was no intention of late Seth Gopikisanji Agrawal to give undivided properties of Hindu Joint Family in the name of the trust. Said Seth Gopikisanji Agrawal breathed his last on 26-1-1988 and he was not interested in giving the joint family properties to the trust till his death. Thus, properties were not mentioned in Schedule-I. In short, he contended that said Seth Gopikisanji without the consent of other coparcener could not have given any property to public trust and alleged deed of declaration of trust, therefore, was bad in law and joint family properties could not have been included in Schedule-I.

3. Reporting trustee Shri. Maheshkumar Agrawal stated that Shri. Gopikisanji Agrawal was having his own manganese mines, petrol pump and other business and he earned and purchased various properties from his income and in addition, he also possessed the properties owned by his father and grand-father.

4. It is, therefore, apparent that in view of Exh.149, the Assistant Charity Commissioner was required to consider prayer for declaration that the deed of declaration of trust is null and void. The said declaration was sought on the ground that Seth Gopikisanji Agrawal who executed that document himself lacked capacity or locus to deal with the properties as mentioned therein.

5. In this background, I have heard Advocate Shri. S. V. Bhutada, for petitioner/ intervener before Assistant Charity Commissioner, Shri. D. B. Patel learned Assistant Government Pleader for respondent No.1 and Advocate Shri. R. M. Bhangade, for respondent No.2 i.e. reporting trustee.

6. The matter was heard and closed on 27-11-2008. Advocate Shri. Bhutada mentioned the matter in the evening in absence of Advocate Bhangade and made a request that he wanted to cite some