1. This is an appeal under section 72 (4) of the Bombay Public Trust Act (for short “Act of 1950”) taking an exception to the judgment and order dated 12/8/1996 passed by the learned Additional District Judge, Nagpur in M.C.A. No.519/1990 thereby confirming the order dated 1/9/1990 passed by the learned Joint Charity Commissioner in Appeal No.72/1993.

2. The facts are thus:

One Adkuji Palandurkar owned the house bearing No.866, Ward No.29, Circle No.17/23 at Nagpur. He died leaving behind him widow Manabai, son Shivram and two daughters namely Kasabai and Sarswatibai. Shivram died issue less in the year 1941. Manabai died in the year 1952. Kasabai died in the year 1959 and left behind her son Motiram who died in March 1972 and daughter Sakhubai. Tulsabai is the widow of Motiram. Saraswatibai died in the year 1972 leaving behind her son Rajaram who also died in the year 1972. For better appreciation, the concerned genealogical tree is reproduced below:

TABLE

3. Controversy is in respect of the will allegedly executed by Manabai on 1/4/1943 in favour of Motiram thereby bequeathing the entire house property in his favour and the gift deed dated 3/1/1969 whereby Saraswatibai gifted the entire house property in favour of Maroti Deosthan Trust of which Rajaram, the son of Saraswatibai was the then President/Trustee. Thus, on the basis of the will, Tulsabai widow of Motiram, claims ownership over the house property whereas Maroti Deosthan Trust respondent no.1 herein claims ownership over the half portion of the house property on the basis of the gift deed by giving up claim for remaining half portion.

4. On the basis of the Change Report submitted by respondent no.1 the Change Report Enquiry No.635/1971 was initiated before the Deputy Charity Commissioner, Nagpur. Issue involved before the said Authority was whether the house property be recorded as property of the Trust. After considering the evidence adduced by both the sides, the Deputy Charity Commissioner accepted the Change Report holding that the half share in the house property has been validly gifted by Saraswatibai and then it was ordered to be recorded in the name of said Trust. This was challenged before the Joint Charity Commissioner in Appeal No.72/1973. The Joint Charity Commissioner dismissed the appeal by confirming the findings. The District Judge concurred with the findings of facts recorded by Deputy Charity Commissioner and then confirmed by the Joint Charity Commissioner and thus rejected M.C.A. No.519/1990.

5. This appeal was admitted on 17/2/1997 without formulating the substantial questions of law presumably, till then an appeal filed under section 72(4) of the Act of 1950 was treated as first appeal. However, in view of decision in ShivprasadShankarlal Pardeshi and others V/s. Leelabai Badrinayaran Kalwar and others reported in 1998 (1) Mh.L.J. 444 this appeal shall be subject to the restrictions and limitations imposed on second appeal as prescribed under section 100 of the Civil Procedure Code.

6. Mr. Vyawahare, the learned counsel for the appellants, contended that the substantial questions of law involved in this appeal are about the validity of the gift deed firstly, for the reason that it was in respect of undivided share of Saraswatibai and secondly, for want of acceptance of the same during the life time of Saraswatibai. According to him, the second substantial question of law is regarding returning finding in negative by Courts below, despite a very cogent and clinching evidence demonstrating ‘adverse possession’ of Motiram and thereafter that of Tulsabai over the house property.

7. Before the learned Joint Charity Commissioner decision in case of Hem Chand V/s. Dal Chand and others reported in AIR 1981 S.C. N.O.C.75 (ALL) was relied upon. Dealing with this contention, the learned Charity Commissioner observed thus:

“In this regard, it is to be noted that Joint Hindu Family consists of all persons lineally descending from common ancestor