( 1 ) THIS is an appeal filed under sec. 72 (4) of the Bombay Public Trusts Act 1950 (which is hereinafter referred to as the Act) and it raises rather an important question of law as regards the procedure to be adopted by the Assistant Charity Commissioner during the course of an inquiry contemplated by sec. 19 of the Act. It also raises the question as regards the revisional jurisdiction of the Charity Commissioner under sec. 70a of the Act.

( 2 ) FOLLOWING in brief are the facts out of which this appeal arises On 15th April 1952 one Huseinkhan Ahmedkhan Pathan filed an application under sec. 18 of the Act for registration of a public trust under the name of Chhani Masjid. Consequent upon this application inquiry No. 499/52 was undertaken by the concerned Assistant Charity Commissioner Baroda. Eventually the trust was registered under the provisions of the Act on 9th June 1953 and was given No. B/553. The trust claimed some properties said to have been gifted to it by one Nabiji Nathaji Vohra of Baroda as per two gift deeds dt. 22nd May 1953.

( 3 ) AGAINST the above order registering the trust and its above name properties Nabiji who has since died filed an appeal before the Charity Commissioner contending that the gifts under which his properties were claimed by the trust were procured from him when he was mentally incapable of making them. This appeal was registered before the Charity commissioner as appeal No. 72 of 1956. On 10th May 1957 the Charity Commissioner remanded the matter back to the Assistant Charity Commissioner with directions to allow Nabiji to lead evidence with regard to the contentions raised by him. Thereafter Nabiji filed his written statement before the Assistant Charity Commissioner and then further inquiry into the matter was undertaken by the Assistant Charity Commissioner Baroda.

( 4 ) IT is found that on 19th December 1959 evidence in the matter was to be recorded. But on that date the gentleman who was engaged as the advocate of the trustees submitted one application to the Assistant Charity Commissioner declaring that he had no instructions. This application is found at Ex. 40 in the record of the case of the Assistant Charity Commissioner. It appears that the Assistant Charity commissioner before whom this declaration was made allowed the said advocate to be discharged from his engagementhowever instead of; giving notice of this discharge to the trustees on whose behalf that advocate was engaged be Assistant Charity Commissioner endorsed the following order on that application. "the trustees are absent even though duly informed. Inquiry to proceed ex-parte against them. : Thereafter the Assistant Charity Commissioner in fact procedure parte and recorded evidence offered by Nabiji. This evidence went unchallenged as nobody was present on behalf of the trustees on the same day the Assistant Charity Commissioner decided the matter and the to the conclusion that the gift deeds said to have been executed by Nabiji were executed by him when he was not mentally capable of doing so. He therefore excluded the properties of Nabiji from the list of the trust properties. As said above this order was passed by the Assistant Charity Commissioner on 19-12-1959.

( 5 ) IN the mean while there were several changes in the board of trustees and several change reports were filed as contemplated by sec. 22 of the Act. It is an admitted position that the present trustees were appointed on 11-4-60 in place of old trustees and they were registered as such in change inquiry No. 476/60. The point to be noted is that on 19 when the Assistant Charity Commissioner excluded the properties claimed by Nabiji from the list of trust properties all the present trustees were not on the Board of trustees. When they came to know about the existence of the order passed by the Assistant Charity Commissioner 19 they filed an application before the Assistant Charity Commissoner on 10-5-1960 for setting aside the ex-parte