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2010 Supreme(Bom) 709
2011 (3) ALL MR 397
In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE R.M. BORDE
Shersingh s/o Hirasingh Fauji
Versus
Sardar Jeewansingh s/o Ayasingh Sahoo, through his L.R. Gurucharansingh s/o Uttamsingh Ghadizaj & Others
SECOND APPEAL NO.751 OF 2009 WITH SECOND APPEAL NO.752 OF 2009
Decided on : 07-05-2010
For the Appellant:A.G. Godhamgaonkar, Advocate.
For the Respondents:R1, Rajendra Deshmukh, Advocate, R2 to R2, Served.
Headnote:Bombay Public Trusts Act, 1950 - Section 72-Decision of District Judge under Section 72 of Act-Decision is judgment of appellate Court-Nature of inquiry in proceedings under Section 72 of Act-Akin to an inquiry in first appeal-Appeal against decision of District Judge in nature of second appeal.-It is to be noted that the District Judge, who was dealing with an application under Section 72 of the Act, is supposed to appreciate the evidence placed on record and note his findings on each of the issued involved in the matter. It is also required to be taken note of that the decision rendered under Section 72 of the Bombay Public Trust Act by the District Judge, is the judgment of the appellate Court. The nature of inquiry in the proceedings under Section 72 of the Act is akin to an inquiry in first appeal. The appeal in respect of proceeding under Bombay Public Trust Act, 1950, against decision rendered by District Court under Section 72 of the Act, is in the nature of a second appeal and as such, the High Court is required to formulate substantial questions of law while dealing with an appeal. A reference can be made to a judgment in the matter of Omprakash Gulabchand Partani and another v. Charity Commissioner, reported in 2007 (5) Bom CR 195.
Bombay Public Trusts Act, 1950 - Section 72-Hyderabad Registration of Societies Act, 1350 Fasli-Trust-Registration of-A property must be belonging to Trust-A Trust, cannot be, without property-Trust, cannot be, without obligation-Society carries on propaganda, issues pamphlets and spends money of the subscriptions or grants received by it, cannot convert a private society into a public Trust.-There must be a property belonging to the trust and if the society receives grants or donations, it has to be established that there is obligation upon the society to spend these donations or grant for public charitable purpose. The trustee must be under an obligation to apply either the corpus or the income of the trust fund to a charitable object, in which case the trust is a public charitable trust. There can be not trust without property, there can be not trust without obligation attaching to the property and the mere fact that the society carries on propaganda, issued pamphlets and spends money out of the subscriptions or grants received by it cannot convert a private society into a public trust. The issue, that was required to be dealt with, was as to whether the public trust possess any property or the funds and whether there is an obligation imposed for application of either corpus or income of the trust for any charitable purpose. This question is required to be addressed while dealing with an inquiry and ascertaining as to whether the trustee are the persons who are discharging functions of the trust and whether the persons, who claim themselves to be trustee, satisfy requirements laid down under the Act.
1. Appellants herein are raising exception to the order passed by District Judge-2, Nanded on 03.10.2009 in appeals RJE No.38/2007 and 68/2007, respectively.
2. The facts, giving rise to the dispute, can be narrated in nutshell, as below:
A Society, having membership amongst persons from Sikh community with religious and charitable object, came to be registered in the name and style “Sachkhanda Huzuri Khalsa Diwan, Nanded (herein after referred to as “Diwan”) as per the provisions of Hyderabad Registration of Societies Act, 1350 Fasli. The Act for administration of Nanded Sikh Gurudwara, namely “Shri Huzur Apchal Nagar Sahib” came to be passed in the year 1956. A board for administration of Sikh Gurudwara came to be incorporated under the provisions of Nanded Sikh Gurudwara Act. Four members belonging to Diwan are required to be taken on board constituted under the provisions of Nanded Gurudwara Act. So far as Diwan is concerned, although it was registered under the provisions of Hyderabad Registration of Societies Act, it was not registered as Public Trust under the provisions of Bombay Public Trusts Act, 1950 and as such, an application came to be tendered by one Jeevansingh Ayasingh for purposes of registration of Diwan as a Trust. The application was numbered as Inquiry No. 950 of 1981. On consideration of application, the Trust has been directed to be registered since January 11, 1982. A list of 28 members’ Working Committee was submitted along with application by Jeevansingh claiming them to be the trustees of the Diwan. A Notification, in that regard, was published on 7th May 1984 in Government Gazette as regards constitution of the board. Four members of Diwan were adopted as members of the board constituted under the provisions of Nanded Gurudwara Act. One objection petition came to be lodged by Shersingh Hirasingh which was registered as Revision Application No.18/1984 raising exception to the order of registration. It was contended that one Bhujangsingh was Pradhan of Diwan and was the governing head of Diwan. According to Shersing, applicant Jeevansingh and others do not constitute a legally elected working body of Diwan and as such they had no authority to nominate anybody on the board. It was claimed that Revision Petitioner i.e. Shersingh and others are entitled for seeking registration of the Trust.
3. On 14th January 1985, the Joint Charity Commissioner allowed Revision Applications and remanded back the inquiry to the Assistant Charity Commissioner with a direction to issue public notice as contemplated by Rule 7A of Bombay Public Trusts Act and after extending fresh opportunity of hearing to the parties concerned, proceed to decide the matter. So far as finding on the issue, as to whether the Trust exists and whether such Trust is a public Trust, came to be kept intact meaning thereby the finding in respect of existence of the Trust and Trust being a public trust has attained finality. Applicant Jeevansingh and others preferred appeal against said order to the District Court, which was numbered as RJE 14 of 1985. The appeal came to be dismissed on 16.11.2000. Against said order, a writ petition was preferred to this Court, however, this Court has also not caused interference and disposed of the petition on 27th February 2001.
4. After remittance of the matter back to the Assistant Charity Commissioner, notices were published, as directed and objections were received. There were objections by Shersingh at Exhibit-65. Objections were also received from Rachpalsingh Sahu, Mohansingh Bhujan Singh, Indrajitsingh Galliwale and those were marked as Exhibits68, 70 and 72, respectively. One Mohansingh Madadgar and others also filed objection, which was marked as Exhibit-127. It transpires that during pendency of proceedings, applicant Jeevansingh died and Gurucharainsingh was permitted to prosecute the matter as an applicant. He claimed himself to be the Pradhan of Diwan. As stated earlier, objection pet
