Holding

The High Court held that the earlier decision in Trust Application No. 3 of 2004 was final and barred the present application by res judicata, and therefore dismissed the appeal.

Summary

The appellants, trustees of Agarwal Samaj Trust, filed a petition under Section 56 of the Bombay Public Trust Act, 1950 seeking to have several immovable properties treated as trust assets and to restrain the former president and secretary (respondents) from disposing of them. The trial court converted the petition into a suit under Section 50, dismissed it for lack of prior permission from the Charity Commissioner, and the appellants appealed under Section 72(4). The key issues were whether the earlier Trust Application No. 3 of 2004, decided by the same court, operated as res judicata to bar the present application, and whether that earlier decision had attained finality despite the abatement of the related appeal. The High Court held that the earlier decision was final and directly applicable, and that the same parties litigated under the same title, so res judicata barred the present suit. Consequently, the appeal was dismissed.

Issues considered

Whether the District Court was correct in applying the principle of res judicata to Trust Application No. 1 of 2004.
Whether the judgment in Trust Application No. 3 of 2004 operates as res judicata despite different petitioners.
Whether the abatement of First Appeal No. 2120 of 2009 prevented the earlier decision from attaining finality.
Whether the conversion of the Section 56 petition into a suit under Section 50 was proper.

Legislation cited

Bombay Public Trust Act, 1950s. 22, s. 36, s. 51, s. 56, s. 72(4)
Code of Civil Procedure, 1908s. Order 22 Rule 10

Subjects

public trustres judicataBombay Public Trust Actimmovable propertytrust propertysection 56section 22section 36section 51appeal abatement

Judgment

C/FA/2292/2018 CAV JUDGMENT DATED: 04/08/2026

Reserved On : 28/07/2026
Pronounced On : 04/08/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 2292 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================

Approved for Reporting Yes No

==========================================================
MADANLAL RADHELAL BANSAL & ORS.
Versus
AGRAWAL SAMAJ TRUST DAHOD & ORS.
==========================================================
Appearance:
ABATED for the Appellant(s) No. 3
CHINTAN K GANDHI(8600) for the Appellant(s) No. 1,2,4,5
MR N P PANDYA(11241) for the Appellant(s) No. 1,2,4,5
DELETED for the Defendant(s) No. 5,6
FRESH RULE NOT RCVD BACK for the Defendant(s) No. 1
MR SHAILESH DESAI, AGP for the Defendant(s) No. 4
MANAN K PANERI(7959) for the Defendant(s) No. 2,3
==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1. By way of this First Appeal led u/s 72(4) of the Bombay
Public Trust Act, 1950 (in short “the Act”), the appellants call
in question legality and validity of impugned judgment and
order dated 9.5.2018 passed by the learned 3rd Addl. District
Judge, Dahod in Trust Application No.1 of 2004 whereby the
learned appellate Court dismissed said application.

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2. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.

3. Brief facts of the case are as under:-

3.1 The Appellants had led a petition under Section 56 of
the Act, claiming that plot numbers 13, 14, 15, 28, 32 and 33
(in short “suit properties”) had been purchased by
Respondent No. 2 out of the trust fund.

3.2 The Appellants sought a direction from the Court to treat
the suit properties as immovable properties of the trust, and
to initiate proceedings under Section 22 of the Act. The
Appellants further sought a direction restraining the
Respondents from selling the said immovable properties
without obtaining permission under Section 36 of the Act.

3.3 Respondent No. 1, Shri Agarwal Samaj Trust, is stated to
be a registered public trust bearing trust registration No.A-
452. The respondent trust is registered under the Act on
7.10.1980.

3.4 The Appellants are stated to be the trustees of
Respondent trust, elected pursuant to a general body meeting
dated 4th June 1989. Proceedings to register their names in
the trust record are stated to be pending vide Change Report

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No. 471 of 1989.

3.5 Respondent No. 2 and 3 were the erstwhile President
and Secretary of Respondent No. 1 Trust. It is alleged that
they were in breach of public trust by mismanaging and
misusing the trust funds, purchased immovable property in
their personal names/capacity.

3.6 In general body meeting dated 4 th June 1989, it was
decided to restrain Respondent No. 2 and 3 from carrying on
any activity injurious to the trust. It is further alleged that
although it was the duty of Respondent No. 2 and 3 to place
the trust's account of transactions before the general body
meeting, they refused to do so.

3.7 It is alleged that under Clause 13(5) of the Constitution
of the Trust, any movable or immovable property purchased
out of trust funds becomes trust property, but that
Respondent No. 2 and 3, in disregard of this clause,
purchased the aforesaid immovable property in their personal
name and attempted to dispose of the same. On the basis of
the pleadings, the Appellants had preferred a petition under
Section 56(A) of the Act claiming following relief:-

“1 It is prayed to issue suggestions, instructions as
well as directions to the present opponents to
carryout procedure under Section 22 to register all
the immovable properties mentioned in Annexure-
A, the copies of the registered sale deeds of the

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same are enclosed herewith, as the property of the
public trust of Opponent No. 1 in the o#ice of the
Assistant Charity Commissioner, Nadiad.

2 It is prayed to issue suggestions, instructions as
well as directions to the present Opponents No. 2
and 3 that they shall not transfer or get transferred
the properties mentioned in Annexure-A in any
manner to any person or persons, except with the
permission under Section 36 of the Joint Charity
Commissioner, Vadodara Division, Vadodara, and
they shall not accept any amount or consideration
of any kind for the same.

3. It is prayed to issue suggestions, instructions and
directions to the present Opponents No. 2 and 3
that they shall hand over the complete details of
any +nancial transactions of the public trust of
Opponent No. 1 carried out by them during the
period of their tenure as a member/trustee of the
managing committee, along with all the records, to
Applicant No. 1 and obtain a written receipt for the
same.

4. It is prayed to issue permanent directions to the
present Opponents No. 2 and 3 that they shall not
carryout or make someone to carryout any
procedure regarding the properties mentioned in
Annexure-A, except the resolution of the trustees
recorded at the relevant time in the Public Trust
Register Schedule-1 which is kept at the Public
Trust Registration O#ice. Moreover, it is also
prayed to caution them that they shall not carry out
or get carried out any transaction in any manner
without obtaining the necessary prior permission
as per the provisions of law.

5. It is prayed to issue suggestions, instructions and
directions that whatever original documents are in
the possession of Opponents No. 2 and 3 pertaining
to the properties mentioned in Annexure-A, they
shall hand them over to Applicant No. 1 and obtain
a receipt for the same.

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6. In the above-mentioned circumstances stated in the
application by us the applicants, it is prayed to
issue any suggestions, instructions and directions
deemed +t for the protection of the interest of the
trust and the bene+ciaries.

7. It is prayed to get cost of this application from the
opponents.”

3.8 The trust application was registered and treated as a
suit under Section 50 of the Act, and by the impugned
judgment and order, it was dismissed.

3.9 Being aggrieved, the Appellants preferred this appeal
having nomenclature of Second Appeal.

4. Heard learned advocate Mr. Chintan Gandhi for the
appellants, learned AGP Ms. Dhwani Tripathi for the
respondent Charity Commissioner and learned advocate Mr.
Manan K. Paneri for the private respondents.

5. Assailing the impugned judgment and order, learned
advocate Mr. Chintan Gandhi would submit that the learned
District Court committed serious error in converting the
application led under Section 56(A) of the Act into a suit
under Section 50 of the Act, and thereafter dismissing the
said suit on the ground that it had been instituted without
permission of the Charity Commissioner. He would further

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submit that the Charity Commissioner was in fact a party to
the suit proceeding, and that this was su@icient to satisfy the
requirement of notice and prior permission. He would further
submit that the learned District Court therefore, erred in
dismissing the suit on the ground that no previous permission
under Section 51 of the Act had been obtained prior to
institution of the suit.

5.1 Secondly, learned advocate Mr. Chintan Gandhi would
submit that allegation had been levelled against Respondent
No. 2 and 3 that they had purchased immovable property out
of trust funds, and that the burden lies on the Respondents to
prove that the properties were purchased from their own
funds. He would further submit that the Respondents failed to
discharge this burden, and yet, the learned District Court
erred in dismissing the matter.

5.2 Lastly, learned advocate Mr. Chintan Gandhi would
submit that the primary ground on which the suit dismissed
was the application of the principle of res judicata. The
learned District Court held that in Trust Application No. 3 of
2004 (Exhibit 162), the competent District Court had decided
that the property in dispute was the personal property of the
Respondents, and that the same issue could not be re-litigated
in Trust Application No. 1 of 2004. He would further submit
that Trust Application No. 3 of 2004 had been moved by Mr.
Shah Govindram Pyarechand, one of the trustees of the trust.
Being aggrieved by the judgment and order passed in Trust

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Application No. 3 of 2004, he had preferred First Appeal No.
2120 of 2009. It was submitted that during the pendency of
the said appeal, he expired, and the Coordinate Bench of this
Court disposed of First Appeal No. 2120 of 2009 as abated,
makes it clear that the issue had not attained nality. He
would further submit that the learned District Court therefore,
wrongly applied the principle of res judicata, and that in any
event, the parties in Trust Application No. 3 of 2004 and Trust
Application No. 1 of 2004 were di@erent and distinct, such
that the principle of res judicata would not apply.

5.3 Upon above submissions, learned advocate Mr. Chintan
Gandhi prays to allow this rst appeal by quashing and setting
aside the impugned order.

6. On the other hand, learned AGP, in the facts and
circumstances of the case, prays to pass necessary orders.

7. Learned advocate Mr. Manan Paneri appearing for the
private respondents relied on the order in First Appeal No.
2120 of 2009 and submitted that the nding of the District
Court in Trust Application No. 3 of 2004 that the immovable
property belonged to the Respondents as their private
property remained undisturbed, as the rst appeal had been
disposed of as abated. He would further submit that in view
thereof, the issue raised in the present appeal (arising from
Trust Application No. 1 of 2004) was barred by the principle

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of res judicata, and that the appeal be dismissed.

7.1 Upon above submissions, learned advocate Mr. Manan
Paneri prays to dismiss the rst appeal.

8. Having heard learned counsel for both sides and
considering the rival submissions along with the impugned
judgment and order as well as record and proceedings, at the
outset, following questions arise for determination:-

(1) Whether the learned District Court was right in applying
principle of res judicata to discuss trust application No.1 of
2004?

(2) Whether the judgment and order in trust application No.3
of 2004 would operate as res judicata in the decision of trust
application No.1 of 2004 despite petitioner in both the
applications are di@erent persons?

(3) Whether on abating First Appeal No.2120 of 2009,
decision / judgment in trust application No.3 of 2004 has
attained nality?

(4) What order?

9. The judgment in Trust Application No. 3 of 2004 is on
record as Exhibit 162. In a detailed judgment, the District
Court had held that the immovable property in question was
purchased by the Respondents from their own funds. In doing
so, the learned District Court reversed the nding of the Joint

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Charity Commissioner in Appeal No. 2 of 1996 (delivered
under Section 70 of the Act), by which the Joint Charity
Commissioner had reversed the order of the Assistant Charity
Commissioner in Change Report No. 239 of 1987 and had
directed that the immovable property be recorded as trust
property. This nding was, however, reversed by the District
Court.

9.1 Apt to note that, immovable property being subject
matter in trust application No.1 of 2004 & trust application
No.3 of 2004, is one and the same.

10. What further could be noticed that the proceeding in
Trust Application No. 3 of 2004 was initiated by one of the
trustees, Mr. Shah Govindram Pyarechand. He led First
Appeal No. 2120 of 2009 before this Court, but died during
the pendency of the appeal. None of the other trustees of the
trust chose to exercise the option of joining the appeal
proceedings, and consequently the appeal stood disposed of
as abated.

11. At this juncture, let refer Order 22 Rule 10 of the Code
of Civil Procedure, 1908 as under:-

“10. Procedure in case of assignment before
nal order in suit.
(1) In other cases of an assignment, creation or
devolution of any interest during the pendency of a
suit, may, by leave of the Court, be continued by or
against the person to or upon whom such interest has
come or devolved.

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(2) The attachment of a decree pending an appeal
therefrom shall be deemed to be an interest entitling
the person who procured such attachment to the
bene+t of sub-rule (1).”

12. In terms of Order 22 Rule 10 of the Code of Civil
Procedure, where a trustee of a trust has died, another
trustee to whom the interest of the trust has been devolved
may continue the proceedings. In the present case, however,
the surviving trustees did not choose to continue the
proceedings in First Appeal No. 2120 of 2009 led by one of
the trustess Mr. Govindram Shah and such First Appeal was
abated. Thus, the nding in Trust Application No. 3 of 2004
attained nality.

13. This Court notes that learned counsel Mr. Gandhi for the
Appellants could not distinguish the fact that the relief
claimed in Trust Application No. 3 of 2004 and Trust
Application No. 1 of 2004 were not the same, namely, that the
immovable property in question be treated as trust property,
purchased from trust funds.

14. Apt to note that the principle of res judicata prevents a
court from trying any suit or issue in which the matter directly
and substantially in issue has already been directly and
substantially in issue in a former suit between the same
parties, under the same title. The phrase in section 11 of the
Code attracts is “between parties under whom they or any of
them litigating under the same title”. The Court found that in
the present case, Mr. Shah Govindram Pyarechand had

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litigated as a trustee of the trust. Likewise, the Appellants are
also litigating as trustees of the trust, i.e., under the same
title. The Court found that the relief claimed and the
respondents are the same in both proceedings, and that the
issue in Trust Application No. 3 of 2004 (as decided by the
competent court) was directly and substantially the same as
the issue in Trust Application No. 1 of 2004. On this basis, the
District Court held that Trust Application No. 1 of 2004 was
barred by the principle of res judicata. According to this
Court, the nding to that e@ect did not su@er from any
in rmity. The issue in dispute since has been judged by the
competent Court in previous decision, it prevents/stops Court
from trying new suit or issue that has already been directly &
substantially decided in former suit between same party or
between the party under whom they or any one of them
litigating under same title.

15. At this juncture, let refer the judgment of the Hon’ble
Apex Court in case of Sri Gangai Vinayagar Temple Versus
Meenakshi Ammal, 2015 (3) SCC 624. Para 31 and 32 are
relevant, which read as under:-

“31. Viewed in this manner, we think it is an
inescapable conclusion that an appeal ought to have
been +led by the Tenant even in respect of O.S. 5/78,
for fear of inviting the rigours of res judicata as also
for correcting the "dismissal" order. In our opinion,
the Tenant had been completely non-suited once it
was held that no cause of action had arisen in its
favour and the suit was 'dismissed'. Ignoring that
+nding and allowing it to become +nal makes that
conclusion impervious to change. In Sheoparsen

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Singh V/s. Ramnandan Prasad Singh, (1915-16) 43
I.A.91, the Privy Council opined - "Res judicata is an
ancient doctrine of universal application and
permeates every civilized system of jurisprudence.
This doctrine encapsulates the basic principle in all
judicial systems which provide that an earlier
adjudication is conclusive on the same subject matter
between the same parties." The raison d'etre and
public policy on which Res judicata is predicated is
that the party who has raised any aspect in a
litigation and has had an Issue cast thereon, has lead
evidence in that regard, and has argued on the point,
remains bound by the curial conclusions once they
attain +nality. No party must be vexed twice for the
same cause; it is in the interest of the State that there
should be an end to litigation; a judicial decision must
be accepted as correct in the absence of a challenge.
The aspect of law which now remains to be
considered is whether +ling of an Appeal against a
common Judgment in one case, tantamount to +ling
an appeal in all the matters.

32. The application of res judicata, so very often,
conjures up controversies, as is evident from the fact
that even in this Court divergent opinions were
expressed by the two Judge Bench, leading to the
necessity of referring the appeal to a Larger Bench. It
was for this reason that we thought it appropriate to
deal with the dispute in detail. It seems to us that had
the decisions of the three Judge Bench in Lonankutty
and Prabhu been brought to the attention of our
Learned and Esteemed Brothers on the earlier
occasion when this appeal was heard by two Judge
Bench, the dichotomy in opinion would not have
arisen. The outcome of the appeal before the High
Court would have also shared a similar fate.”

15. Applying the aforesaid legal dictum to the facts of the
case, the Court found that the learned District Court had not
committed any error, much less an error of law. Hence,

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present First Appeal requires fate of dismissal.

16. Resultantly, present First Appeal fails and stands
dismissed.

17. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.

(J. C. DOSHI,J)

FURTHER ORDER

After pronouncement of the judgment, learned advocate
Mr. Chintan Gandhi requests to suspend the execution,
implementation and operation of this judgment for a period of
four weeks so as to enable the appellants to approach the
higher forum. For the reasons stated herein above, the
request is refused.

(J. C. DOSHI,J)
SHEKHAR P. BARVE

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 04/08/2026 15:08:19

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