High Court of Gujarat
HEIRS OF MAHANT DAYARAMDAS- BAI PADMA WD/O DAYARAMDAS (DELETED)versusCHARITY COMMISSIONER
- Disposal
- 39-RULE DISCHARGED/DISMISSED @ FH
- Bench
- C DOSHI
Holding
The court held that the Narsinhji Temple is a public trust, its properties (except specified survey numbers) belong to the trust, the civil applications for joining parties are valid, and the appeals are dismissed.
Summary
The Gujarat High Court examined a protracted dispute over the Narsinhji Temple Trust, determining whether the temple and its surrounding lands constitute a public trust or private property of the Mahants. The court considered the validity of multiple First Appeals (77/1979, 478/1979, and 4206/2024) and civil applications for joining parties and alleged breach of injunction. Relying on extensive evidence, statutory provisions of the Gujarat Public Trust Act and precedent, the court affirmed that the temple is a public trust and that all properties, except a few specifically identified survey numbers, belong to the trust. It held that the applicants seeking to join the appeals as necessary parties were correctly joined under Order I Rule 10 of the CPC. The court also clarified that appeals under Section 72(4) of the GPT Act are second appeals subject to Section 100 CPC and that the appointment of trustees under Section 47 was proper. Consequently, the three appeals were dismissed, the civil applications for joining parties were allowed, and the earlier interim orders were vacated.
Issues considered
- The nature of the Narsinhji Temple – whether it is a public trust or a private deity.
- Whether the lands and movable assets listed in Schedules A, B and C are public trust property or private property of the Mahants.
- Whether the civil applications for joining parties should be allowed under Order I Rule 10 of the CPC.
- Whether the appeal filed under Section 72(4) of the Gujarat Public Trust Act is a second appeal subject to the limitations of Section 100 CPC.
- Whether the appointment of trustees under Section 47 of the Gujarat Public Trust Act complied with the statutory criteria.
- Whether there exists a substantial question of law warranting a second appeal.
- Whether the breach of order application is maintainable.
Legislation cited
- Code of Civil Procedure, 1908s. 1, s. 100, s. 10(2), s. 42
- Indian Evidence Act, 1872s. 101, s. 102, s. 65
- Transfer of Property Act, 1882
Subjects
public trustreligious endowmenttemple propertytrustee appointmentSection 47 Gujarat Public Trust ActSection 72 Gujarat Public Trust Actsecond appealsubstantial question of lawburden of proofcivil procedure
Judgment
C/FA/77/1979 CAV JUDGMENT DATED: 22/06/2026
Reserved On : 05/05/2026
Pronounced On : 22/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 77 of 1979
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/FIRST APPEAL NO. 77 of 1979
With
CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of
2025
In CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/FIRST APPEAL NO. 77 of 1979
With
R/FIRST APPEAL NO. 478 of 1979
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/FIRST APPEAL NO. 478 of 1979
With
CIVIL APPLICATION (FOR BREACH OF ORDER)
NO. 1 of 2025
In CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2024
In R/FIRST APPEAL NO. 478 of 1979
With
R/FIRST APPEAL NO. 4206 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/FIRST APPEAL NO. 4206 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd/-
=====================================================
Approved for Reporting Yes No
Yes
=====================================================
HEIRS OF MAHANT DAYARAMDAS- BAI PADMA WD/O
DAYARAMDAS (DELETED) & ORS.
Versus
CHARITY COMMISSIONER & ORS.
=====================================================
Page 1 of 155
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Appearance:
R/FIRST APPEAL NO. 77 of 1979
MR. MEHUL S. SHAH, SR. ADV. assisted by MR ARPIT A.
KAPADIA(3974) for the Appellant(s) No. 1.6
DELETED for the Defendant(s) No.
10,11,12,13.1,13.2,13.3,13.4,13.5,14.1,14.2,15,16.1,16.2,16.3,1
7,18,19.1, 20,21,2.1,22,23.1,24,25,26,27,28,29,3,4.1,5,6,7,8,9
MS DHWANI R. TRIPATHI, AGP for the Defendant(s) No. 1
R/FIRST APPEAL NO. 478 of 1979
DECEASED LITIGANT THROUGH LEGAL HEIRS/
REPRESTENTATIVES for the Appellant(s) No. 1
MR. MEHUL S. SHAH, SR. ADV. assisted by MR ARPIT A.
KAPADIA(3974) for the Appellant(s) No. 1.6
DELETED for the Defendant(s)
No.1,10,11,12,13,14,2.1,2.2,2.3,2.4.1,2.4.2,3,3.1,
4.1,4.2,5,6,7,8.1,8.2
MS DHWANI R. TRIPATHI, AGP for the Defendant(s) No. 9
R/FIRST APPEAL NO. 4206 of 2024
MR. MEHUL S. SHAH, SR. ADV. assisted by MR ARPIT A.
KAPADIA(3974) for the Appellant(s) No. 1
MR. PERCY KAVINA, SR. ADV. assisted by MR. BHAGIRATH N.
PATEL(9016) & MR. TEJAS P. SATTA & MS. AISHWARYA for
Defendant(s) No.1,2,3,4,5
MS DHWANI R. TRIPATHI, AGP for the Defendant(s) No. 6,7
=====================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
To ensure a sound final judgment, let me first lay the
cornerstone of the two Civil Applications for joining party.
ORDER IN CA NOs.1 of 2024
1. These Civil Application Nos.1 of 2024 filed in both the
First Appeals, being First Appeal No. 77 of 1979 and First Appeal
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No. 478 of 1979, are for joining party. These two Civil
Applications deserve a ruling before the captioned appeals take
centerstage.
2. These two Civil Applications are filed by the persons,
who have been appointed as Trustees of the Narsinhji Mandir
Trust, Dhaman, having Registration No.A/265/Navsari by the
2nd Additional District Judge, Navsari in Civil Misc. Application
(Trust) No.56 of 2017.
3. Heard learned Senior Counsel Mr. Percy Kavina
assisted by learned advocate Mr. Tejas P. Satta for the applicants
of the applications and learned Senior Counsel Mr. Mehul Shah
assisted by learned advocate Mr. Arpit Kapadia appearing for the
appellants of the captioned First Appeals.
4. Learned Senior Counsel Mr. Percy Kavina mainly
argued that the applicants are appointed as Trustees by the 2 nd
Additional District Judge in Civil Misc. Application (Trust) No.56
of 2017 in exercise of powers under Section 47 of the Gujarat
Public Trust Act, 1950 (hereinafter referred to as the ‘GPT Act’).
4.1 He would further submit that though the appellants
have challenged the judgment and order passed in Civil Misc.
Application (Trust) No.56 of 2017 by way of First Appeal No.
4206 of 2024, whereby the coordinate Bench of this Court in
Civil Application No.1 of 2024 stayed the execution and
implementation of the judgment and order passed in the Civil
Misc. Application, and it would not preclude the present
applicants from joining the present appeals as they are
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necessary and essential parties under Order I Rule 10 of the
Code of Civil Procedure, 1908 (hereinafter referred to as ‘the
Code’).
4.2 Learned Senior Counsel Mr. Percy Kavina further
submitted that the two First Appeals, being First Appeal No. 77
of 1979 and First Appeal No. 478 of 1979, were dismissed for
non-prosecution more than once. The litigation, which was
started by the devotees of Bhagwan Narsinhji, were also expired
and in that circumstances, in the restoration applications filed
by the appellants, the present applicants were joined as a party.
Even before dismissal of the First Appeals on the ground of non-
prosecution, the applicants had preferred Civil Applications for
joining them as a party in the appeal proceedings. However,
since the appeals were dismissed for non-prosecution, the Civil
Applications filed by the present applicants were also dismissed.
4.3 He would further submit that, on 28.02.2023, First
Appeal No. 77 of 1979 and First Appeal No. 478 of 1979 were
restored, and at the relevant time, the applicants were given an
opportunity to contest the restoration applications and further,
while restoring the main appeals, had also been given the cost.
4.4 In this line of submission, learned Senior Counsel
Mr. Percy Kavina submitted that the applicants are the Trustees
of the Narsinhji Mandir Trust and, therefore, they are required to
be joined in the matter and also, they are to be given the right of
audience to agitate the contentions against the appellant’s
appeals.
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4.5 Upon above submissions, it was submitted to allow
both the Civil Applications.
5. Per contra, learned Senior Counsel Mr. Mehul Shah
appearing for the original appellants mainly contended that the
applicants have no locus standi to argue to defeat the appeals of
the appellants and that the applicants are not the Trustees of
the Narsinhji Temple Trust.
5.1 It is further submitted that when the proceedings of
the First Appeals arose, some other devotees had initiated the
proceedings. All of them have died and they were also deleted
from the array of respondents in the appeals by orders passed
below Civil Application No.1 of 2023 in both the First Appeals,
and thereby, the First Appeals are only continued against the
Charity Commissioner. The said applications were allowed by
this Court vide order dated 21.01.2026. Thus, it makes it
abundantly clear that the applicants have no locus standi to be
impleaded in the First Appeals.
5.2 It is further argued that the judgment and order
passed in Civil Misc. Application (Trust) No.56 of 2017
appointing the applicants as Trustees of the Narsinhji Mandir
Trust, Dhaman, has been stayed by this Court vide order dated
20.01.2025, which makes it abundantly clear that the applicants
have no locus standi to be impleaded in the First Appeals.
Therefore, learned Senior Counsel Mr. Mehul Shah submitted
that both the applications are bereft of merits and require to be
dismissed.
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6. Having heard learned Counsel for both the sides and
considering the contentions raised before the Court, what could
be noticeable that in the Civil Misc. Application (Trust) No.56 of
2017, the 2nd Additional District Judge, Navsari, in exercise of
power and jurisdiction vested under Section 47 of the 'GPT Act',
appointed the present applicants as Trustees of the Trust,
although this order has been stayed by this Court in First Appeal
No.4206 of 2024, it cannot be said that their presence in the
appeal proceedings is unnecessary or that they are not relevant
to decide the disputes.
7. What is also noticeable is that the applicants have
been treated as respondents in Misc.Civil Application (For
Restoration) No.1 of 2017 in both the appeals. They have been
given the audience by the coordinate Bench while passing an
interim order on 28.02.2023. The arguments of learned Senior
Counsel Mr. Percy Kavina was heard by the coordinate Bench,
who had objected to restoration of the First Appeals. The
coordinate Bench ultimately allowed the Misc. Civil Applications
for restoration, granting a cost of Rs. 25,000/- to the applicant
of the Misc. Civil Applications.
8. It is equally relevant to note that at the time of filing
the restoration applications, the appellants had chosen the
applicants to be respondents on the ground that they were
persons interested in the outcome of the appeals.
9. Now, in these circumstances, the appellants cannot
blow hot and cold and can say that the applicants are not
necessary parties in the appeal proceedings. The Principle of
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Approbate and Reprobate applies to the arguments of the
appellants.
10. The appellants, who at their own wish and
convenience, joined the applicants as respondents in the Misc.
Civil Applications for restoration and also permitted them to
argue the restoration applications, cannot now deny the
applicants from joining as a necessary party in the appeal
proceedings.
11. Order I Rule 10(2) of ‘the Code’ confers power upon
the Court to add or strike out parties either suo-motu or upon
the application of a party, and on such terms as may appear to
the Court to be just. It further permits the Court to add a party if
it finds that the presence of such party before the Court is
necessary in order to enable the Court effectively and completely
to adjudicate upon and settle all the questions involved in the
suit.
12. In Savitri Devi v. District Judge, Gorakhpur,
reported in 1999 (2) SCC 577, it has been held by the
Honourable Supreme Court that Order I Rule 10 of ‘the Code’
enables the Court to add any person as a party if it is necessary
for effective and complete adjudication and settlement of all
questions involved in the suit and to avoid multiplicity of the
proceedings. For determining whether a party is a necessary
party or not, the two factors are to be satisfied. First, that there
must be a right to some relief against such party in respect of
the controversies involved in the proceedings, and second, no
effective decree can be passed in absence of such party. Apt to
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note, the object of Order I Rule 10 of ‘the Code’ is to discourage
the contests on technical pleas and to save honest and bonafide
applicant from being non-suited. Under this Rule, a person may
be added as a party to the suit in the case where, without their
presence, the questions involved in the suit cannot be completely
decided. It is in these circumstances, according to this Court,
the applicants of the Civil Applications are necessary parties in
the appeal proceedings and are required to be added as
respondents in seriatim.
13. In the premises of the aforesaid reasons, the Civil
Application No.1 of 2024 in both the appeals is allowed. The
applicants of the Civil Applications are ordered to be joined as
respondents, in seriatim, in both the appeals.
Necessary amendments be carried out forthwith.
ORDER IN FIRST APPEALS
1. In all, the three captioned appeals hereinabove
involve identical issues connected with each other. Therefore,
upon the urge of learned Counsel for both the sides, all the three
appeals are heard and decided analogously by this common
judgment.
2. In essence, it is a dispute between Lord Narsinhji and
his Mahant Late Dharamdas Guru Govinddas. The latter, in
dispute, claims that the idol of Lord Narsinhji is a private idol
and the house where the said idol is placed is a personal temple,
and all the properties situated in the various surrounding
Page 8 of 155
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villages attached with the Narsinhji Temple are his personal
properties.
2.1 Per contra, the devotees, however, claimed that the
idol of Lord Narsinhji is a public idol and the place where the
idol is placed is a public temple. Everyone from the general
public has a right to worship and offer “pooja” and “aarti” and
that, all the properties dedicated either by the erstwhile State of
Baroda or by villagers, whether standing in the name of the
Mahant or in the name of Lord Narsinhji or in any other name of
Lord Narsinhji, are public properties and they are the part of the
Trust’s properties.
2.2 This dispute traces its origin to the year 1952. The
devotees of Lord Narsinhji filed an application before the Deputy
Charity Commissioner, Baroda Circle on 07.06.1952 claiming
that the idol of Lord Narsinhji is a public idol and the house
where it is placed is a public temple, and all the properties in the
surrounding villages are public properties. The said application
was registered as Civil Misc. Application No. 27 of 1952 by the
Deputy Charity Commissioner, Baroda, who initiated an inquiry
under Sections 19 and 20 of the 'GPT Act'.
2.3 This inquiry was allowed by the Deputy Charity
Commissioner on 02.06.1954 after issuing notice to Late Mahant
Dayaram Guru Govinddas. In the proceedings before the Deputy
Charity Commissioner, Late Mahant Dayaram Guru Govinddas
raised multiple contentions (Written statement at Exhibit-18)
and claimed that the idol of Lord Narsinhji is a private deity and
all the properties, including the place where the idol is kept are
not the public properties, but are private properties.
Page 9 of 155
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2.4 Further, it is contended that even on the previous
occasions, at multiple times, the different villagers being
antagonistic to Mahant Dayaram had unsuccessfully filed
various applications before different authorities to claim that
Lord Narsinhji is a public deity and the place where he is placed
is a public place.
2.5 In his contention, Mahant Dayaram claimed that his
ancestors had brought the idol of Lord Narsinhji from Village
Bharatpur. At the relevant time, there was no temple in Village
Dhaman. The idol was kept in the private place and the
ancestors of the defendants were offering worship, seva, pooja
and aarti to the idol and, thereby, it is a private deity and all the
properties are private properties.
2.6 As stated hereinabove, the Deputy Charity
Commissioner, Baroda, allowed the application filed by the
devotees having considered the revenue records produced on
record and the depositions/statements of villagers recorded
during the inquiry, and also recorded the admission of Mahant
Dayaram that the old temple was opened for darshan to all
people,and also referred to Exhibit-51, the list of the properties
given by the Mahant himself.
2.7 The Deputy Charity Commissioner, Baroda, upon
Exhibit-51, believed that the Mahant possessed the said
properties and also other properties, which he purchased out of
the sale proceeds of the lands, which were properties of the
public trust, and therefore, held that all the properties including
lands, buildings as well as movable properties inherited by the
Mahant were trust properties.
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2.8 Being aggrieved, the Mahant preferred Appeal No.
117 of 1954 before the Charity Commissioner, Bombay under
Section 70 of the ‘GPT Act’. Charity Commissioner heard the
appeal and after giving opportunity of hearing to all relevant and
concerned parties, Charity Commissioner, Bombay vide order
dated 25.07.1955 dismissed the appeal filed by the Mahant.
2.9 Further being aggrieved, Late Mahant Dayaram filed
an application under Section 72 of the 'GPT Act' before the
District Court, Surat to set aside the decisions rendered by the
Charity Commissioner as well as the Deputy Charity
Commissioner on 21.09.1955. This challenge was registered as
Misc. Civil Application No.70 of 1955. Subsequent thereto, on
bifurcation of Surat District, Valsad District came to be
separated from Surat District and, thereby, on change of
territorial jurisdiction the Misc. Civil Application No.70 of 1955
came to be transferred to the District Court, Valsad at Navsari
and was renumbered as Misc. Civil Application No.1 of 1964.
2.10 In the interregnum, three persons namely Haribhai
Naranji, Govindbhai Kalyanji and Vallabhbhai Nagar, after
obtaining the permission from the Charity Commissioner on
20.10.1954, filed Regular Civil Suit No.30 of 1954 before the
District Court, Surat on 19.11.1954 under Section 50 of the
'GPT Act', claiming relief of removal of the Mahant Dayaram
Guru Govinddas as a Trustee on the ground of malfunction and
mismanagement of the trust as well as trust properties, and to
appoint new Trustees and to set aside alienation of the trust
properties made by Mahant Dayaram and for rendition of the
accounts.
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2.11 Alike transfer of the Misc. Civil Application filed
under Section 72 of the 'GPT Act', on bifurcation of the Surat
District, the Regular Civil Suit No.30 of 1954 filed before the
District Court, Surat was also transferred to the District Court,
Valsad and came to be renumbered as Regular Civil Suit No.3 of
1964.
2.12 To be noted that when the Regular Civil Suit under
Section 50 of the 'GPT Act' was filed by public spirited persons
and the devotees of Lord Narsinhji, the application filed by the
Mahant before the Charity Commissioner vide Appeal No.117 of
1954 was pending. The Mahant having lost before the Charity
Commissioner, as stated hereinabove, has filed the Misc. Civil
Application, firstly before the District Court, Surat, which
thereafter stood transferred to the District Court, Valsad at
Navsari and was renumbered as Misc. Civil Application No. 1 of
1964.
3. At this juncture, the history of the temple, which
seems to be lost in antiquity, requires a glance. Even as per the
say of Late Mahant Dharamdas, one of his ancestors had come
from Bharatpur. At that time, there was no temple in Village
Dhaman. The ancestor (As per the Guru-Chela tradition and
lineage), was doing a private Dev-Seva. The Guru Mahant
Dharamdas had brought the metal idol of Lord Narsinhji, which
was a portable image. The ancestor of Mahant Dayaram was
living in a hut in Village Dhaman and later on, the temple at
Village Dhaman had been set up by this founder.
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3.1 The admitted genealogy of the Mahants of the temple
shows that late Mr. Dharamdas was the first Mahant and he
founded the temple. After Mahant Dharamdas, the Gadi devolved
upon Mahant Santokdas, and thereafter came disciple
Prabhudas, and then Laldas and then, Gopaldas and lastly,
upon Mahant Dayaram.
3.2 The prerequisite of Mahantship, as per the custom
and tradition, was that the Mahant must be ‘celibate’. However,
this tradition was not preserved and followed by the last Mahant
Dayaram. He married after being appointed as Mahant. All the
previous Mahants were celibates and the Mahantship had
devolved from Guru to Chela (Spiritual teacher/master to
Disciple) as per the established tradition. Meanwhile, some wills
were executed by the Mahants (Exhibits-39 to 42). These will
have some bearing on the decision and the dispute between the
parties. However, it is discussed in the later part of the
judgment, but to be observed that the two wills, Exhibits-41 &
42 were made by the then Mahant during the pendency of the
dispute between the parties.
3.3 In a Regular Civil Suit No.3 of 1964, the public
spirited persons and the devotees of Lord Narsinhji claimed
Three categories of the properties to be part of the Public Trust.
One category consists of the property, which were in actual
possession and management of the Mahant. They are shown in
Schedule-A. This schedule-A is sub-divided into Three parts. The
first part consists of agricultural land scattered over in various
villages. The second part consists of buildings and land
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appurtenant to the building. The third part consists of moveable
properties.
3.4 The second category, i.e. Schedule-B, in which
particulars of those immovable properties were shown, which
have been alienated by the Mahant prior to or during the
pendency of the litigation. This alienation is sought to be
declared as void. The parties, who were in possession of the
property of those alienated lands at the time of filing of the suit
were joined as defendant Nos.4 to 27 in the suit proceedings.
3.5 The third category, i.e. Schedule-C, consists of
agricultural land admeasuing 30 Bighas and Vasa land in Moje
Village Chokhund, Taluka: Navsari, gifted by Mahant Dayaram
to the defendant No.3 - Raghuvirdas Guru Govinddas. This gift is
also sought to be declared as void.
3.6 In the Regular Civil Suit No.3 of 1964, following
reliefs were claimed:-
“(1) that the defendant No.2 be removed as Mahant-trustee
and Manager of the suit public trust and its properties;
(2) the defendant No.2 be ordered to render accounts of the
management of the trust and its properties
(3) new trustees and/or manager/managers be appointed
in place of the defendant No.2 and the trust properties be
vested in them
(4) declare as to what properties of the trust or the
interest therein shall be located to any particular object of
the trust;
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(5) declare that the properties mentioned in Schedules B
and C are properties belonging to the suit public trust;
(6) direction be given to the new trustee or manager who
may be appointed to do needful to recover the possession of
the trust property in the hands of defendants Nos. 3 to 27
and also the proceeds of the suit properties
(7) a scheme be framed for the proper management of the
trust properties ;
(8) that the defendant No.2 or any of the defendants
Nos.3 to 27 be ordered to pay the costs of the plaintiffs or
the costs be ordered to be paid from the trust estate; and
(9) any other further relief as the nature of the case may
require.”
3.7 The basis of filing the suit was the outcome of the
inquiry proceedings conducted before the Deputy Charity
Commissioner, confirmed by the Charity Commissioner. In that
realm, the proceeding of Misc. Civil Application No.1 of 1964 and
its fate thereof, conflated with the fate of Regular Civil Suit No.3
of 1964, and therefore, both the proceedings were consolidated
and heard together.
3.8 Issues were also framed in both the proceedings.
Voluminous evidence, both oral and documentary, were recorded
in connection with all the issues. The District Court decided both
the proceedings finally on 16.09.1971. The Misc. Civil
Application No.1 of 1964 was allowed and the decision of the
Charity Commissioner in appeal No.117 of 1954, confirming the
decision of the Deputy Charity Commissioner in Inquiry No.27 of
1952, was upturned. The temple of Lord Narsinhji was held to be
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a private deity and the properties, which were held to be public
trust properties by the Deputy Charity Commissioner and
Charity Commissioner were declared to be private properties of
the Mahant. In consequence of this finding, the Regular Civil
Suit No.3 of 1964 came to be dismissed.
3.9 The dispute then reached to the High Court of
Gujarat. Against common decision, the First Appeal No.803 of
1971 was preferred, challenging the judgment and decree passed
in the Regular Civil Suit No.3 of 1964. The other First Appeal
No.222 of 1972 was filed challenging the decision arrived in the
Misc. Civil Application No.1 of 1964. The appeals were heard
together by the Division Bench of this Court and by judgment
dated 11/12.08.1977, the Division Bench of this Court (Coram:
Hon’ble Mr. Justice J.B. Mehta and Hon’ble Mr. Justice P.D. Desai)
quashed and set aside the common judgment and decree passed
by the learned District Court and the finding that the temple of
Lord Narsinhji was a private deity and that the property in
question were not public trust properties, were reversed and set
aside. The Division Bench of this Court held that the temple of
Lord Narsinhji is a public trust under the 'GPT Act' and also gave
the relevant observation and finding in regards to the nature and
title of the properties belonged to Lord Narsinhji’s temple and
remanded the matter for disposal by the District Judge in light of
the observation made in the judgment.
3.10 In substance, the Division Bench of this Court
passed the aforesaid order in so far as the Misc. Civil Application
No.1 of 1964 filed under Section 72 of the 'GPT Act' is concerned.
As far as the RCS No.3 of 1964 is concerned, which was decided
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on the preliminary issues, the Division Bench of this Court gave
the direction to decide the remaining issue in the suit.
3.11 The relevant finding of the Division Bench of this
Court to remand the matter to decide that which properties are
the private properties of the Mahant and which properties
belongs to the public trust, reads as under:-
“As regards the properties movable and immovable of
this public trust, three Schedules A to C had been given. In
Schedule A the lands and buildings were mentioned. In
Schedules B and C properties which have been alienated to
various respondents and properties which were gifted to
Raghuvirdas were mentioned in Schedule C. All these
properties were held by the charity authorities to be public
trust properties. As we have earlier shown as public trust
properties, there would be no difficulty in holding the
properties which were Barkhali lands or Dharmada
Chakariyat lands or lands which had been gifted by
Dharmada gift or by gifts for religious purposes or the
objects or which were acquired from public offerings, which
had the character of Sarvajanik properties even under the
Baroda law. The same would be true of the other properties
which were accretions to those properties or which had been
acquired by conversion in money or by purchasing other
properties from the sale proceeds, as such accretions or
conversions would have the same character. As, however,
the trial Court had disposed of both these matters only on
the preliminary question as to whether the temple was a
public temple or of private ownership and on that basis the
question about the properties had been disposed of, once
that finding of the temple being a public temple and not a
private temple and, therefore, the public trust is given, the
trial Court will have now to go into the question as to which
properties in these Schedules are public trust properties and
which are private properties as contended by the Mahant.
The trial Court had disposed of the other companion suit
because of these findings in the Application under sec. 72.
Therefore, even in that matter now the suit would have to be
disposed of on merits. So far as the three issues which were
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heard as preliminary issues — issue No. 1 as to the
maintainability of the suit; as to the defendants 3 to 27
being not necessary parties and issue No. 5 as to misjoinder
of causes of action and parties, they had been already
disposed of by giving a finding in favour of the plaintiffs and
no grievance regarding these findings had been made before
us. Therefore, it would be only the other issues which have
not been determined which will have now to be disposed of
by the trial Court in that companion suit in accordance with
our findings on the preliminary question that the Narsinhji
temple is a public trust and bearing in mind our
observations as to which properties even under the Baroda
law had the Sarvajanik character.
In the companion suit, it may be borne in mind that
this is an ancient temple which seems to have a
considerable following in this area and it has large
properties and even there would be fairly good income both
from the lands and properties as well as from the donations
and offerings. Originally the institution was having Sadavrat
and a Dharmashala as well which appear to have been
closed since many years. The present suit is for claiming the
various reliefs including the removal of the Mahant and for
framing up of the proper scheme for management of the
trust, including challenge to the various alienations and gifts
of the properties in Schedules B and C and for accounts. The
whole litigation has been pending since very long and the
Mahant has also now expired. The trial Court would have,
therefore, to bear in mind the need for expediting the hearing
of this suit keeping in mind these broad facts, especially
when we have now held this to be a public trust of this
ancient temple with its considerable properties, where it was
because of the large scale alienations and the other alleged
acts of the deceased, that this suit had to be filed. Once this
trust is found to be a public trust, the Court would have to
approach the crucial problem, if the proper cause of action is
made out before it, to frame proper scheme, bearing in mind
the principles for guidance which are laid down by this
Court in its decision in First Appeal No. 361 of 1962, where
my learned Brother spoke for the Division Bench in that
decision dated November 30, 1972 in the matter of
Bahucharaji Mata temple. It was pointed out there that it
was well settled that once the Court found that there existed
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a trust for public purpose, it was its duty to consider as to
how best the interests of the public as well as of the trust
would be served. In the case of a permanent charitable
trust, it would be the duty of the Court to arrange for the
proper administration of the trust and for the application of
its funds in the best interest of the trust. If there was in
existence any rule, custom or practice, in accordance with
which the trust was being administered and its funds
applied and the Court found that such rule, custom or
practice was required to be altered on account of lapse of
time or change of circumstances, in the interest of charity, it
would be the duty of the Court to settle a scheme providing
for the same as observed by the Privy Council in Srimati
Prasadji v. Laxmidas, A.I.R. 1929 P.C. 271:
‘The institutional trust must be respected; but the sect
and body of worshippers for whose benefit it was set
up have the protection of the Court against their
property being the subject of abuse, speculation and
waste.’
In settling a scheme the Court will be entitled to take into
consideration not merely the wishes of the founder so far as
that can be ascertained but also the past history of the
institution and the way in which the management has been
carried on heretofore, in conjunction with other existing
practices that might have grown up since the foundation of
the trust. The Court has while settling the scheme the power
of giving any directions and laying down any rules which
might facilitate the work of management.—(Vide Mahomed
Ismail Ariff v. Ahmed Moolla Dawood, A.I.R. 1916 P.C. 132).
It is in the light of this legal and factual position that the
question whether a scheme is required to be settled in
respect of the trust in question will require consideration.
The Court would have to keep in mind the most essential
aspect that the income of such religious foundation which is
meant essentially for being used for pious use should not be
allowed to be frittered away or wasted in any manner and
the manifold needs of the institution and its ancillary
activities like Sadavrat, Dharmashala, which were
previously carried out could not be allowed to remain
unsatisfied. The Court has to settle the scheme providing for
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the best method for fully and effectively carrying out the
purposes for which the trust exists and the proper
application of its funds to attain that objective. The scheme
which may ultimately be framed would have to provide for
the application of the funds of the temple in a manner
consistent with the objects of the foundation and in the best
interest of the trust. At the same time, in framing the
scheme, the Court would also bear in mind the past history
of the institution, the way in which the management has
been carried on heretofore and would give due consideration
to the established practice of the institution and consider
whether in the context of the existing conditions the same
requires to be rescinded or modified. After the proper case is
made out, the District Court would have to settle the scheme
in the light of these observations.
In the result, we have to allow both the appeals by
reversing the decree of the learned District Judge by setting
aside his findings that the temple in question was not a
public trust and that these properties in question were not
public trust properties. We substitute the finding that the
temple in question is a public trust under the Act. As regards
which properties are the public trust properties, the matter
would have to go back to the trial Court for disposal in the
light of the aforesaid observations, so far as the Misc. C.A.
under section 72 is concerned.
As regards the companion suit, the trial Court having
disposed of the matter only on the preliminary issue, we set
aside that decree by substituting the aforesaid finding that
the temple in question is a public trust under the Act and,
therefore, the remaining issues shall now be answered in
the light of the aforesaid observations. We surely hope that
now the District Court will dispose of this litigation at an
early date, preferably within six months period from the
receipt of record of this Court. It will be open to the parties to
seek proper interim relief, if necessary, for protecting interest
of the public trust and the trust properties. Both the appeals
are accordingly allowed with costs. The costs of the Charity
Commissioner shall come out of the trust.”
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3.11.1 Thus, the Division Bench in the common order of
First Appeal No.803 of 1971 and First Appeal No.222 of 1972,
conclusively held that the temple of Lord Narsinhji is a public
deity and that the temple is a public temple and has further held
that persons from the general public have every right to offer
pooja, seva and darshan, and also to celebrate all the festivals,
which are celebrated within the premises of the temple.
3.12 As far as the issue in regards to whether the
properties mentioned in Schedule-A, B and C are concerned,
whether they prove to be public or private properties, after
aforesaid observation, the Division Bench remanded the matter
to learned District Court to decide afresh and also directed it to
decide the remaining issues afresh.
3.13 The decision of the Division Bench in the aforesaid
First Appeals is taken up to the Hon’ble Supreme Court by
Mahant Dayaram by filing Special Leave Petition (Civil) Nos.
4249-4250 of 1978. On 02.05.1979, the Hon’ble Supreme Court
permitted Mahant Dayaram to withdraw the SLP proceedings.
The following order was passed by the Hon’ble Supreme Court:-
"Order on the Special Leave Petitions as prayed for in
prayer (a) of the application for withdrawing S.L.Ps.”
3.14 In a petition, which was tendered before the Hon’ble
Supreme Court for seeking a permission to withdraw the SLP, in
para A, the petitioner had prayed for the following relief/s:-
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“a) give liberty to the petitioners to withdraw the present
petition and with liberty to agitate the question raised in the
present petition as and when the petitioners adopt
proceedings against the Judgment of the High Court in the
pending Appeal; and.
b) pass such other and further order or orders as may be
deemed just and proper by the Hon'ble Court on the facts
and in the circumstances of the case.”
3.15 The aforesaid facet of the dispute unmistakeably
implies that the decision of the Division Bench of this Court
holding that the temple of Lord Narsinhji is a public trust
remains unaltered till date. The late Mahant Dayaramdas
reserved his right to question the decision as and when any
proceedings arising from the judgment of the High Court is
questioned.
3.16 It is in this backdrop the proceedings of Regular Civil
Suit No.3 of 1964 were re-conducted. According to the finding
and observation of the learned District Judge in the reconvened
proceedings of Regular Civil Suit No.3 of 1964 (Exhibit-559) that,
after receiving back the Record and Proceedings from the High
Court, the District Court had issued notices to all the concerned
parties. However, it was found that amongst the three original
plaintiffs, only one was surviving, i.e. plaintiff No.2, whereas
deceased plaintiffs Nos.1 and 3 were represented by their
respective heirs and legal representatives, who were brought on
record.
3.17 Mahant Dayaram, who had fought the litigation tooth
and nail, died during the pendency of the appeals before the
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High Court and his heirs and legal representatives have been
brought on record. The defendant No.3 - Raghuvirdas, also
expired and his heirs and legal representatives were brought on
record.
3.18 In the same manner, some other defendants also
expired, and either their names were deleted or their heirs and
legal representatives were brought on record.
3.19 According to the observations of the learned District
Judge in the reconvened proceedings of the Regular Civil Suit,
the matter, which was hotly contested till the decision of the
Division Bench of the High Court and which came to be
challenged before the Hon’ble Supreme Court as well, thereafter
the heirs of Mahant Dayaram lost interest in the proceedings
and, despite being served, they did not choose to appear and
contest the reconvened proceedings of the Regular Civil Suit.
3.20 By the decision dated 11.09.1978, the learned
District Judge passed following final order:-
“The Miscellaneous Application No. 1 of 1964 is
dismissed with a slight modification in respect of the suit
properties. The following are held to be the properties of the
public trust named Shri Narsinhji Temple of village Dhaman,
Taluka Navsari.
Category A, Part- I (Agricultural lands in actual
possession of the deceased
deft.No.2 Mahant)
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i) Survey Nos. 233, 234, 224/2,
235, 118, 504 of village Dhaman, Ta. Navsari.
ii) Survey Nos. 30/1, 30/2 and 31
of village Chokha, Ta. Navsari
iii) Survey Nos. 75 & 76
of village Asunder, Ta. Navsari
iv) Survey No. 77 of village Talsadi, Ta. Navsari.
v) Survey No. 117 of village Kolagna, Ta. Navsari.
vi) Survey No. 175 of village Astagam Taluka Navsari.
vii) Survey Nos. 173, 184, 299, 561 and 570
of village Pangha, Ta. Navsari.
viii) Survey Nos. 73 of village Algadh
Taluka Mahuva.
ix) Survey No. 430 and 437 of village Vaheval,
Ta. Mahuva.
x) Survey No. 255 of village Butwada,
Taluka Mahuva.
xi) Survey Nos.12, 24, 102, 104, 110, 117,118/2, 120/1,
105, 125, 141, 144, 156, 66, 118/1, 152, 76, 87, 109
and 41 of village Anahati, Ta. Mahuva.
xii) Survey No. 22 of village Karohaka Taluka Bardoli..
xiii) Survey No. 106/of village Shanker-Talavani,
Taluka Mahuva.
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It is clarified that survey No.225 of village Dhaman,
survey No.69/1 of village Asunder, survey No.635 and 608
of village Mat, Ta. Mahuva, Survey No.82 of village
Bamaniya Ta. Mahuva an survey Nos. 157 and 158 of
village Anahatri claimed to be the trust properties as shown
in the Schedule A, Part I of the plaint are not held to be trust
properties. To that extent, Misc. Application No.1 of 1964
shall be deemed to have succeeded.
Category A, Part- II (Lands and buildings which
were in actual possession of
the deceased Mahant
defendant No.2).
i) Buildings situate in the compound of the
temple with compound bearing House No.55
at Dhaman.
ii) Buildings situate in the compound of Ram
Rasayan Farmacy with compounds of
house Nos. 67 an 68 at village Dhaman.
iii) Buildings with compounds bearing house
No.70 let to the Co-operative Society at
village Dhaman.
iv) The house in Dubarwada with compound
bearing houses Nos. 7 to 10 at village
Dhaman.
v) 1/6th part of the building of Ram-Rajya Flour
Mill at village Dhaman with the machinery
of the flour mill
vi) Buildings in Bavawala street being part of
survey No.51 at village Dhaman.
vii) The buildings situate in village Chokhad with
compound bearing house No.16.
These are all properties which are shown in
Schedule-A, Part II of the plaint an all of them are held to be
trust properties.
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Category A, Part- III: (Movable properties in the
hands of the deceased Mahant
Defendant No.2).
All the movable properties worth
Rs.15026-05p as listed in the
Inventory prepared by the Charity
Commissioner on 26-6-1954.
Category B properties: (Those which have been
alienated by the deceased
Mahant defendant No.2)
i) Survey Nos. 673 and 567 of village Dhaman.
ii) Survey Nos. 14, 5/1, 79 of village Perthan.
iii) Survey No. 54 of village Mahuvar Ta. Navsari.
iv) Survey Nos. 123, 126 and 166 of village Asundar
v) Survey No. 298 of village Tavai Taluka Navsari.
vi) Survey No.390 of village Chhinam, Ta. Navsari.
vii) Survey No. 257 of village Chokha
viii) Survey No.501 of village Zervavda
ix) Survey No.35 of village Kharvan Ta. Mahuva.
x) Survey No. 423 of village Velanpor, Taluka Mahuva.
xi) Survey Nos. 389 and 390 of village Mahuvaria,
Ta. Mahuva
These are all the properties shown in Schedule B of
the plaint attached to the suit excepting survey Nos. 1/1,
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4/1, 6 and 69 of village Nihali. These four survey numbers
of village Nihali are not held to be the trust property.
Category C properties: :- (Properties which the deceased
defendant No.2 Mahant gave to
the defendant No.3
Raghuvirdas by oral gift)
i) Survey numbers 151, 207, 207/1, 283 and 288. They
are all the properties which are shown in Schedule 'C'
of the plaint in the suit.
There shall be no order as to costs in
Miscellaneous application No.1 of 1964 in view of the costs
to be awarded in the suit.
Regular Civil Suit No. 3 of 1964 is decreed with
following reliefs granted:-
(a) It is hereby directed that Govindji Dahyabhai
Patel, Ranchhobhai Naranjibhai Patel, Ambelal Rambhai
Patel, Ambelal Parshottam Patel and Govindbhai
Kalyanbhai Patel, all of village Dhaman, Taluka Navsari
shall be the trustees of the suit public trust by the name of
Shri Narsinhji Temple, of village Dhaman. All the properties
of this public trust as aforesaid shall vest in these trustees.
The draft scheme for the administration and management of
this public trust and its properties at Mark 546/l is
approved. The names of the trustees shall be incorporated in
this draft scheme. The plaintiffs shall provide the copy of the
scheme with the names of the trustees incorporated therein
with the signatures of the trustees obtained thereunder. The
copy so provided under my signature shall form the part of
the decree. One copy thereof shall be directly givento the
Government Pleader on behalf of the Charity Commissioner
for the record of the Charity Commissioner's Office. This
scheme shall govern the administration and management of
this public trust and its properties, subject to the provisions
of the Bombay Public Trusts Act.
(b) The name of the deceased defendant No.2
Mahant shall be deleted from the public trust register and
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the entry regarding the mode of succession from Guru to
Chela shall also stand deleted in view of this scheme frame.
(c) The possession of Parts I, II and III of Category A
properties which were in possession of the deceased
Mahant at the time the suit was filed shall be recoverable by
the trustees from the heirs and legal representatives of the
deceased defendant No.2 who are on record as defendants
Nos. 2/1 to 2/6 or any other person who may be in
possession of the same. The defendants Nos. 2/1 to 2/6 are
directed to put the trustees in possession of the said
properties.
(d) The trustees are directed to take necessary
proceedings for recovering the possession of the properties of
category B aforesaid and for any other appropriate relief.
(e) The properties of Category C aforesaid shall be
recoverable by the trustees from the heirs and legal
representatives of the deceased defendant No.3 or any
person or persons who are found in possession of those
properties. The defendant Nos. 3/1 to 3/6 being the heirs
and legal representatives of the deceased Raghuvirdas are
directed to deliver the possession of the Category C
properties forth-with to the trustees.
(f) The costs of the plaintiffs and the costs of the
Charity Commissioner shall come out from the estate of the
public trust. So far as the advocate fees to be taxed for
awarding the costs to the Charity Commissioner in the suit,
it shall be taxed as a non-contentious proceeding viz. 1/4th
of the schedule fees taxed for contentious matters. So far as
the plaintiffs are concerned, the full advocate fees shall be
faxed. All the defendants excepting the Charity
Commissioner shall bear their own costs.
The decree in the suit shall be drawn in terms of
the reliefs granted as aforesaid. All the categories of
properties referred to in this order shall be specified in the
decree by their description which shall include the survey
number, the area of the land and the village in which
situated. For this purpose, the reference can be had to the
Schedules attached to the plaint in the suit.”
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3.21 Thus, at the end of the aforesaid decision, the
immovable property of Survey No.225 at village Dhaman, land of
Survey No.69/1 at village Asunder, land of Survey Nos.635 and
608 of village Mudat, land of Survey No.82 at village Bamaniya,
land of Survey Nos.157 and 158 of village Andhantri, and land of
Survey Nos.1/1, 4/1, 6 and 69 of village Nihali were held not to
be properties of the public trust of Lord Narsinhji Temple Trust.
Remaining all the properties mentioned in Schedules-A, B and C,
including the immovable properties, were held to be immovable
properties of the public trust.
3.22 Being aggrieved by the aforesaid decision, Mr. Vijay,
the self-proclaimed Mahant and son of deceased Mahant
Dayaramdas, filed the aforesaid two appeals, thereby carrying on
the everlasting dispute before this Court once again.
3.23 The two appeals filed in the year 1979 weathered
various terrains, which came to be dismissed twice for non-
prosecution and were again restored and in that position, the
appeals were tagged together.
3.24 During the pendency of the captioned two appeals of
1979, since the devotees and the public-spirited persons, who
were fighting for the deity - Lord Narsinhji, have either lost
interest in the litigation or passed away and some were deleted
from the proceedings of the First Appeals. Some were
represented through their legal heirs and representatives.
3.25 In this chequered situation, Mr. Bachubhai
Chhotubhai Patel and four others filed an application under
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Section 47 of the 'GPT Act' to appoint the Trustees of the public
trust. It was registered on 01.12.2017 before the District Judge,
Navsari and came to be numbered as Civil Misc. Application
(Trust) No.56 of 2017.
3.26 The opponents in the said Civil Misc. Application
were the Charity Commissioner and the Assistant Charity
Commissioner and following the order passed by the High Court
of Gujarat in Special Civil Application No.13591 of 2018 dated
17.03.2020, Mr. Vijay Dayaram was joined as opponent No. 3 in
the proceedings.
3.27 It is also to be noted that during the course of the
hearing of Civil Application in First Appeal No.77 of 1979 and
First Appeal No.478 of 1979, vide order dated 22.10.2024, the
coordinate Bench of this Court has directed the District Court at
Navsari to decide the CMA No.56 of 2017 within the time-bound
manner and to deliver the judgment on or before 29.11.2024.
3.28 This order itself implies that the applicants of the
CMA No.56 of 2017, who have preferred the CA for joining party
in the aforesaid FAs, are the interested party and for effective
adjudication of the two appeals, their presence is necessary.
3.29 Consequently, the learned 2nd Additional District
Judge, Navsari, by judgment and order dated 29.11.2024, was
pleased to allow the Civil Misc. Application and appointed the
applicants of the said Civil Misc. Application as the Trustees of
the Lord Narsinhji Temple Trust, registered as Trust
No.A/265/Navsari and directed the Charity Commissioner as
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well as the Assistant Charity Commissioner to follow the order
accordingly.
3.30 Being aggrieved, Mr. Vijay Dayaram preferred the
third appeal being First Appeal No.4206 of 2024, raising multiple
averments therein, but without claiming any relief thereof.
3.31 Vide order dated 20.01.2025, the coordinate Bench
admitted First Appeal No. 4206 of 2024 and stayed the operation
of the order passed in Civil Misc. Application (Trust) No.56 of
2017. Subsequently, by order dated 03.02.2025, the First Appeal
No.4206 of 2024 was directed to be notified along with First
Appeal No.77 of 1979 and First Appeal No.478 of 1979. It is in
this backdrop that all the three appeals were tagged, heard and
decided together.
3.32 It is also to be noted that during the course of the
hearing of Civil Application in First Appeal No.77 of 1979 and
First Appeal No.478 of 1979, vide order dated 22.10.2024, the
coordinate Bench of this Court has directed the District Court at
Navsari to decide the CMA No.56 of 2017 within the time-bound
manner. This order itself implies that the applicants of the CMA
No.56 of 2017, who have preferred the CA for joining party in the
aforesaid FAs, are the interested party and for effective
adjudication of the two appeals, their presence is necessary.
3.33 Essentially, the appeals of 1979 are filed under
Section 72(4) of the 'GPT Act' and the First Appeal No.4206 of
2024 is filed under Section 47(6) of the 'GPT Act'.
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4. Extensive, comprehensive and exhaustive argument
of learned Senior Counsel Mr. Mehul Shah assisted by learned
advocate Mr. Arpit Kapadia, were made assailing the impugned
judgments and orders.
4.1 Firstly, learned Senior Counsel argued in regard to
the scope of the appeal under Section 72(4) of the 'GPT Act'.
Equating the scope of the appeal under Section 72(4) of the 'GPT
Act' with the scope of second appeal under Section 100 of ‘the
Code’, learned Senior Counsel Mr. Shah submitted that though
the scope of interference is limited and normally, interference
with the finding of fact is impermissible, but if the learned trial
Court fails to consider the evidence on record, which, if
considered, would have led to an opposite conclusion, such
interference would be permissible.
4.2 He would further submit that the Court, which tried
the trust suit in the case on hand, was under a duty to examine
the entire relevant evidence on record and has to decide that
whether the title of the property is religious or secular title, and
whether the property was purchased by the Mahant from his
own income or whether it was a deity’s property.
4.3 He would further submit that if the learned trial
Court has refused to consider important evidence having direct
bearing on the disputed issue, and if such an error is of such
magnitude that it gives birth to a substantial question of law,
even under Section 72(4) of the 'GPT Act', which is pari-materia
to Section 100 of ‘the Code’, the High Court has to examine the
facts and further examine that, whether the learned trial Court
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failed to consider vital pieces of evidence or the learned trial
Court relied upon inadmissible evidence while arriving at the
conclusion impugned in the appeal. He would submit that
impugned judgment and order are glaring example of non-
application of mind, application of irrelevant consideration and
non-consideration of evidence on record.
4.4 In support of the aforesaid submission, learned
Senior Counsel Mr. Shah relied upon the judgment of the
Hon’ble Supreme Court in the case of Ishwardas Jain (Dead)
through LRs v. Sohanlal, reported in AIR 2000 SC 426, more
particularly paragraphs 11 to 13, which reads as under:-
“11. There are two situations in which interference with
findings of fact is permissible. The first one is when material
or relevant evidence is not considered which, if considered
would have led to an opposite conclusion. This principle has
been laid down in a series of judgments of this Court in
relation to Section 100, CPC after the 1976 amendment. In
Dilbagrai Punjabi V/s. Sharad Chandra, 1988 Supp SCC
710 while dealing with a Second Appeal of 1978 decided by
the Madhya Pradesh High Court on 20-8-81, L.M. Sharma, J.
(as he then was) observed that :
‘The Court (the first appellate Court) is under a duty to
examine the entire relevant evidence on record an if it
refuses to consider important evidence having direct
bearing on the disputed issue and the err which arises as
of a magnitude that it gives birth to a substantial question
of law, the High Court is fu authorised to set aside the
finding. This is the situation in the present case.’
In that case, an admission by the defendant-tenant in
the reply notice in regard to the plaintiff's title and the
description of the plaintiff as 'owner' of the property signed
by the defendant were not considered by the first appellate
Court while holding that the plaintiff had not proved his title.
The High Court interfered with the finding on the ground of
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non-consideration of vital evidence and this Court affirmed
the said decision. That was upheld. In Jagdish Singh V/s.
Nathu Singh, (1992) 1 SCC 647 : (1992 AIR(SCW) 1747 : AIR
1992 SC 1604), with reference to a Second Appeal of 1978
disposed of on 5.4.1991. Venkatachaliah, J. (as he then
was) held :
‘Where the findings by the Court of facts is vitiated by
non-consideration of relevant evidence or by an essentially
erroneous approach to the matter, the High Court is not
precluded from recording proper findings.’
Again in Sundra Naicka Vadiyar V/s. Ramaswami Ayyar,
1995 Suppl (4) SCC 534 : (1993 AIR(SCW) 3978 : AIR 1994
SC 532), it was held that where certain vital documents for
deciding the question of possession were ignored such as a
compromise, an order of the revenue Court reliance on oral
evidence was unjustified. In yet another case in Mehrunissa
V/s. Visham Kumari, (1998) 2 SCC 295 : (1998 AIR(SCW) 3 :
AIR 1998 SC 427) arising out of Second appeal of 1988
decided on 15.1.1996, it was held by Venkataswami, J. that
a finding arrived at by ignoring the second notice issued by
the landlady and without noticing that the suit was not
based on earlier notices, was vitiated and the High Court
could interfere with such a finding. This was in Second
Appeal of 1988 decided on 15.1.1996.
12. The second situation in which interference with
findings of fact is permissible is where a finding has been
arrived at by the appellate court by placing reliance on
inadmissible evidence which if it was omitted, an opposite
conclusion was possible. In Sri Chand Gupta V/s. Gulzar
Singh, (1992) 1 SCC 143 : (1991 AIR(SCW) 2813 : AIR 1992
SC 123), it was held that the High Court was right in
interfering in Second Appeal where the lower appellate Court
relied upon an admission of a third party treating it as
binding on the defendant. The admission was inadmissible
as against the defendant. This was also a Second Appeal of
1981 disposed of on 24.9.1985.
13. In either of the above situations, a substantial question
of law can arise. The substantial question of law that arises
for consideration in this appeal is : "whether the Courts
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below had failed to consider vital pieces of evidence and
whether the Courts relied upon inadmissible evidence while
arriving at the conclusion that the mortgage was sham and
that there was no relationship between the plaintiff and the
defendant as mortgagor and mortgagee but the real
relationship was as landlord and tenant- Point 1 is decided
accordingly.”
4.5 Belaboring the impugned judgment and order,
learned Senior Counsel took this Court through the entire record
and proceedings of the case. He also took this Court through the
judgments delivered by the Division Bench of this Court at the
first instance and the judgments delivered by the Charity
Commissioner, Assistant Charity Commissioner, Deputy Charity
Commissioner as well as the District Courts and would submit
that the villagers or devotees had filed the suit seeking removal
of the Mahant and had also claimed the relief of framing the
scheme.
4.6 He would further submit that along with the plaint
filed before the District Court, three Schedules of different
properties were attached with the plaint. However, the reliefs
claimed in the suit proceedings indicate that the villagers or
devotees, had sought for relief only in respect of Schedule ‘B’ and
Schedule ‘C’ attached with the plaint, and no relief in regard to
Schedule ‘A’ was ever prayed for.
4.7 He would further submit that the basic tenet of ‘the
Code’ as well as the 'GPT Act' says that no relief can be granted
by a Court if the same has not been prayed for by the plaintiff.
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4.8 He would further submit that, ignoring this settled
principle, the learned District Judge decreed the suit in favour of
the villagers or devotees by holding that the properties
mentioned in Schedule ‘A’ is of the character of a religious
property and belonged to the deity or the trust.
4.9 He further submitted that this is a foundational error
committed by the learned District Court while trying the suit.
4.10 In support of the aforesaid submission, learned
Senior Counsel relied upon the judgments of the Hon’ble
Supreme Court in Bharat Amrutlal Kothari v. Dosukhan
Samadkhan Sindhi, reported in (2010) 1 SCC 234, more
particularly paragraph 14, as well as in the case of Rohit Singh
v. State of Bihar, reported in (2006) 12 SCC 734, more
particularly paragraph 21.
4.11 It was further argued by the learned Senior Counsel
that the devotees or the public spirited persons or the villagers
claimed that various properties standing in the names of Mahant
Dayaramdas or previous Mahants are the properties of the
public trust as those properties are holding the religious
character. He would submit that, in view of Sections 101 and
102 of the Evidence Act, 1872 (hereinafter referred to as the
‘Evidence Act’), the burden lies upon such plaintiff to prove that
the properties mentioned in Schedules-A, B and C are the
properties of the deity/public trust having the religious
character.
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4.12 Taking this Court through the impugned judgments
and orders, learned Senior Counsel takes the exception to the
findings that the learned District Court, having clubbed both the
proceedings in the remand matter, wrongly cast the burden
upon Mahant Dayaram to establish that all the properties were
of secular character and not of religious character and not
belongs to the public trust.
4.13 He would submit that it is a completely erroneous
and impermissible approach on the part of the learned District
Court. The burden always lies upon the person, who claims relief
before a Court of law to prove the facts he has asserted in the
plaint by leading evidence.
4.14 He would further submit that, in absence of any proof
indicating that the properties mentioned in Schedules-A, B and
C belonged to Lord Narsinhji or possessed a religious character,
merely on the assumption and presumption and taking a note
that the property being the subject matter of the proceedings,
passes through or succeeded under the Guru-Chela tradition, it
would become the properties of Lord Narsinhji or the properties
of the public trust, is a completely erroneous finding.
4.15 Learned Senior Counsel Mr. Mehul Shah, in regard to
the Principle of Burden of Proof, relied upon the judgment in the
case of Anil Rishi v. Gurbaksh Singh, reported in (2006) 5
SCC 558, more particularly para 8 to 10 as well as the judgment
in the case of Adiveppa & Ors. v. Bhimappa & Ors., reported
in (2017) 9 SCC 586, more particularly para 16 thereof.
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4.16 Learned Senior Counsel, while reading the aforesaid
judgments, submitted that the concepts of ‘burden of proof’ and
‘onus of proof’ are different and distinct.
4.17 He would further submit that, ‘burden of proof’ is
defined under Section 101 of the ‘Evidence Act’ and it always lies
upon the plaintiff, who claims such relief or asserts certain
claims.
4.18 He would further submit that, in view of Section 101
of the ‘Evidence Act’, the burden of proving the facts lies upon
the party, who substantially asserts the affirmative issue and
seeks judgment upon it and not upon the person, who merely
traverses the same.
4.19 He would further submit that pleading is not
evidence, far less proof.
4.20 He would further submit that the issues, which are
essentially raised upon the basis of the pleadings, if are not
admitted or acknowledged by the defendant, the burden lies
upon the party to prove such issue, if the party leading an
evidence discharges the burden, the onus would be shifted upon
the other side to prove the denial.
4.21 It is in this submission that learned Senior Counsel
submitted that, in the case on hand, the villagers, devotees or
public spirited persons, except pleading in the suit, have done
nothing to prove that the properties, which are alleged to have
been the properties of the public trust, is actually the properties
of the deity, namely Lord Narsinhji, or the properties assumed
the religious character.
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4.22 Finding this to be a vital error on the part of the
learned trial Court, learned Senior Counsel submitted to
intervene in the impugned judgments and orders.
4.23 Learned Senior Counsel Mr. Mehul Shah referred to
the judgment of the Hon’ble Supreme Court in the case of
Kuldeep Chand & Anr. v. Advocate General to the
Government of Himachal Pradesh & Ors., reported in (2003)
5 SCC 46, to submit that no instrument in writing is required
for dedication of a property for religious and charitable purpose.
4.24 He would further submit that the Hon’ble Supreme
Court, in the aforesaid judgment, laid down the prerequisites for
deciding whether a trust is public or private and whether the
property claimed is a property of the trust or private property.
4.25 Learned Senior Counsel heavily relied upon
paragraphs 20, 21, 22, 23, 37, 38 and 46 of the judgment to
submit that if the origin of the endowment is unascertainable,
the question whether the user of the temple, a member of a
public trust as of right, sold the property would be relevant.
4.26 He would further submit that if documents are
available to prove the nature and origin of the endowment, and
the recital of the document is available to show the endowment,
such documents are the primary documents to showcase that in
how and in which way, the endowment was made and whether it
was a public or private endowment.
4.27 In addition thereto, learned Senior Counsel relied
upon the judgment of the Hon’ble Supreme Court in the case of
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Bihar State Board Religious Trust, Patna v. Mahant Sri
Biseshwar Das, reported in (1971) 1 SCC 574, and submitted
that the Hon’ble Supreme Court in the said judgment laid down
the factors to be considered while making a distinction that a
property purchased in name of a Mahant is the temple’s property
or his private property. He would submit that the factors laid
down by the Hon’ble Supreme Court pari-passu applies to the
facts of the present case, as the multiple documentary evidence
on record sufficiently says that the various parcels of the land
were gifted by the villagers to the Mahant in his personal
capacity, it maybe to Mahant Dayaramdas or his Guru, but all
the parcels of land gifted by different villagers with a stipulation
that the Mahant or his successor would be entitled to use these
properties for their personal maintenance, clearly establishes
that all such parcels of land were of a private and secular
character.
4.28 Learned Senior Counsel further submitted that it is
also evidenced that some of the Mahants were doing their own
business. They were doing agricultural activities and even
engaging in money-lending business and last Mahant was
partner in floor-mill, which all are suffice to presume that the
Mahants, in their individual capacity, had source to purchase
the lands, and accordingly they also purchased the lands in their
personal capacity.
4.29 Learned Senior Counsel would further submit that,
admittedly, after obtaining the permission from the erstwhile
Baroda State, the then Mahant had sold certain parcel of lands
and thereafter purchased other lands from the proceeds they
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have received from the selling of the land. These are the
important piece of evidence on record to show that the parcels of
land belonged to and were owned by the Mahants, nor by Lord
Narsinhj or by the public trust.
4.30 Learned Senior Counsel submitted that mere passing
of the property from Guru to Chela would not by itself impart a
religious character to the property.
4.31 Learned Senior Counsel referred to the judgment of
Privy Council in the case of Pandit Parmanand v. Nihal Chand
& Ors., reported in AIR 1938 Privy Council 195, and further
submitted that the descent of property from Guru to Chela
cannot by itself say that the property is of religious character or
religious nature. Property, if acquired by the Mahant in his
personal capacity, would be of a secular nature, and the descent
of such property to a Chela does not warrant a religious nature.
4.32 In this regard, learned Senior Counsel also relied
upon the judgment of Patna High Court in the case of Mahant
Ramsharan Das v. Jairam Das, reported in AIR 1943 Patna
135. It was argued by the learned Senior Counsel that the
learned District Court failed to appreciate the evidence produced
by the Mahant in the suit proceedings and thereby erred in not
making a distinction between the properties of secular nature
and properties of religious nature.
4.33 Learned Senior Counsel submitted that once the
Division Bench of this Court remanded the matter to the learned
District Court to decide that whether the properties were public
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trust properties or private properties, the learned District Judge,
instead of analyzing the evidence on record and appreciating the
same in its true perspective, under the guise of implementing the
judgment of the Division Bench, hurriedly, cursorily and
superficially, in just a casual manner, decided the suit and,
barring one or two properties, held that all the properties
belongs to the public trust, and thereby, has committed serious
and manifest error.
4.34 Learned Senior Counsel would further submit that in
a matter which was remanded to the learned District Court to
decide the nature of the properties, including the revenue
entries, which consistently were standing in the name of the
Mahant, learned District Court erroneously ignored them. He
would submit that, ordinarily, the revenue entries may not
create the title, but in the case on hand, the revenue entries
were mutated pursuant to gift deeds executed by the villagers in
favour of the Mahant or pursuant to the registered sale deeds
executed in favour of the Mahant or by the State Government as
a grant, removing the tenure of Barkhali lands and thereby,
creates a strong presumption in favour of the Mahant that the
properties, which are alleged to be public trust properties, is in
fact the properties of a secular nature belonging to and owned by
the Mahant.
4.35 Learned Senior Counsel further submitted that the
persons, who have gifted the various parcels of the land to the
Mahant or certain parcels of the land purchased by the Mahants
by selling old parcels of the land, the transactions were never
questioned either by the State Government i.e. the erstwhile
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State of Baroda, or by the persons, who were the previous title
holders of the parcels of land. In these circumstances, he would
submit that the revenue entries assumed great significance and
importance, but the learned District Court, who was in a haste
to decide the suit, in desultory and slipshod manner, decided the
issue ignoring all the relevant evidence, including the revenue
entries.
4.36 In support of the aforesaid argument, learned Senior
Counsel relied upon the judgments of the Hon’ble Supreme
Court in Union of India v. Robert Zomawia Street, reported in
AIR 2014 SC 2721, more particularly para 14 and 15, as well
as Digambar Adhar Patil v. Devram Girdhar Patil (Dead) &
Ors., reported in AIR 1995 SC 1728, more particularly para 5
thereof.
4.37 It is also argued by learned Senior Counsel Mr.
Mehul Shah that besides producing the exhaustive documentary
evidence, Mahant has also deposed that how the idol of Lord
Narsinhji came to village Dhaman. How the Guru Chela
Tradition started and in which way the Chelas were appointed
and how the properties were purchased by the different Mahants
at different intervals of time, assumes the secular nature and not
the religious nature. Even the idol of Lord Narsinhji was a
private deity and not public. The place where the idol of Lord
Narsinhji is placed is also a restricted place and not a place
where the public at large, without taking any permission from
the Mahant, could come and offer worship, Pooja, Aarti to Lord
Narsinhji. However, all these exhaustive documentary as well as
oral evidence have been discarded by the learned District Court.
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4.38 He would further submit that the will executed by
Guru to Chela at Exhibits-39-42 indicate, demonstrate and show
that the properties, which have been declared as public trust
properties or the properties in religious nature, were in fact
succeeded from Guru to Chela on a secular nature. The will,
which remained unimpeachable, was wrongly disbelieved by the
learned District Court.
4.39 Mainly upon above submission, learned Senior
Counsel Mr. Mehul Shah submits in regard to the appeals of
1979 that the learned District Court has committed gross,
serious and patent error, and therefore, the impugned judgment
and order is required to be reversed.
4.40 In regards to the inquiry, which was numbered as
Misc. Civil Application No.1 of 1964 having been registered in
the year 1952, learned Senior Counsel Mr. Mehul Shah submits
that the few villagers, who were the devotee of Lord Narsinhji,
filed this application before the Deputy Charity Commissioner
under Sections 19 and 20 of the ‘GPT Act’. Taking this Court
through Sections 19 and 20 of the ‘GPT Act’, learned Senior
Counsel Mr. Mehul Shah submits that neither of the provisions
permits the Deputy Charity Commissioner to decide the title of
the immovable properties.
4.41 He further submitted that, essentially, the title of
immovable properties can only be decided by the Civil Court and
so far as the trust properties is concerned, can only be decided
by the District Court under Section 50(e) of the 'GPT Act'.
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4.42 He would further submit that under Section 19 of the
'GPT Act', the jurisdiction of the Deputy Charity Commissioner
or Assistant Charity Commissioner is limited to making an
inquiry in regards to whether a trust exists and whether such
trust is a public trust and whether any property in the property
of such trust exists, etc., but it could not adjudicate the title of
the property where conflicting claims are made.
4.43 He would further submit that, in the present case,
the learned Assistant Charity Commissioner, who was deciding
the inquiry proceedings, exceeded its jurisdiction and went on to
decide the nature of the properties, and thereby, the decision in
the inquiry proceedings itself is palpably wrong and erroneous.
4.44 Relying upon the Full Bench judgment of the Bombay
High Court in Keki Pestonji Jamadar v. Rodabai Khodadad
Merwan Irani, reported in 1971 SCC OnLine Bom 74, para 22
and 24 thereof, learned Senior Counsel submits that anything in
excess of the jurisdiction vested under Sections 19 and 20 of the
'GPT Act' if has been done by the Deputy Charity Commissioner,
such inquiry itself is non-est and does not create any
precedential effect.
4.45 On the issue of production of the secondary evidence,
learned Senior Counsel submitted that the photocopy of a
document is no evidence unless the same is proved by following
the procedure set out, more particularly under Section 65 of the
‘Evidence Act’. Therefore, referring to the judgment of Tharamal
Pithambaran v. T. Unni Krishnan, reported in AIR 2006 SC
938, he would submit that the learned District Court committed
serious error, in relying on the photocopy of the documents.
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5. As far as First Appeal No.4206 of 2024 filed under
Section 47(6) of the 'GPT Act' questioning the legality and
propriety of the judgment and order passed in Miscellaneous
Civil (Trust) Application No.56 of 2017 is concerned, learned
Senior Counsel referred to Section 47(4) of the 'GPT Act' and
submitted that while appointing a trustee under sub-section (3)
of Section 47 of the 'GPT Act', the Court was required to take
into consideration the wishes of the author of the trust, if
available; to the wishes of the person, if any, empowered to
appoint new trustees or has to examine the question whether
such appointment would promote or impede the execution of the
trust, what are the customs and usages of the trust and what is
the interest of the public or the section of the public, who are
having interest in the trust.
5.1 Learned Senior Counsel Mr. Mehul Shah submits
that the learned District Court, while exercising the powers
under Section 47(3) in the aforesaid application, has missed to
visit the aforesaid criteria and appointed the five persons as
trustees, who were the petitioners, on the ground that some
Gram Sabha was called and in the Gram Sabha, those five
persons were unanimously elected as trustees of the Lord
Narsinhji Mandir Trust.
5.2 He would further submit that it is not a recognized
mode of appointing the trustees. However, the learned 2 nd
Additional District Judge, while allowing the Misc.Civil
Application, has failed to consider the aforesaid aspect.
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5.3 In support of the submission, learned Senior Counsel
Mr. Mehul Shah relied upon the judgment in the case of Pandit
Vasudev Vyas (Dead) through LRs v. Board of Management,
S.S.J.S. Peeth, reported in AIR 2006 Online SC 570.
5.4 He further submitted that as per the findings and
observations of the Hon’ble Supreme Court in Pandit Vasudev
Vyas (Dead) through LRs (Supra), the appointment of a trustee
is a matter of great importance. The Charity Commissioner and
consequently, the appellate Court, as the case may be, should
have made every endeavour to give effect to the wishes of the
founding trustee, if such wishes are available.
5.5 He would further submit that the heirs and legal
representatives of the founding trustee, in the circumstances,
may be permitted to step into his shoes and be appointed as a
Mahant or trustee of the trust.
5.6 He would further submit that, in the present case,
the appellant - Mahant Vijay is the son of deceased Mahant
Dayaramdas. The wishes of the founding trustee, namely
Dharamdas, though are not available in writing; however, the
Guru-Chela tradition, which uninterruptedly continued
throughout to settle the succession, indicates that the Guru
always chose the Chela and in the present case, since disputes
were going on, the last Mahant, i.e. Mahant Dayaramdas was
contesting the proceedings before the High Court of Gujarat in
two appeals, he could not appoint his Chela to administer the
idol of Lord Narsinhji and the properties. However, since son of
Mahant Dayaram, namely Mr. Vijay was permitted by the Courts
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to continue the proceedings, only he should have be appointed
as Trustee by the learned 2nd Additional District Judge.
5.7 Lastly, learned Senior Counsel Mr. Mehul Shah relied
upon the judgment of the Hon’ble Supreme Court in D.D.A. v.
Skipper Construction Company(P) Limited, reported in AIR
1996 SC 2005, would submit that the judgment and order
passed by the learned 2nd Additional District Judge in Civil Misc
Application (Trust) No.56 of 2017 had been kept in abeyance by
this Court and yet, the applicants therein and the respondents
in First Appeal No.4206 of 2024, approached the Charity
Commissioner and they mutated their names in the properties.
5.8 Learned Senior Counsel submitted that such
approach on the part of the respondents and the original
applicants was completely in defiance of the injunction order
passed by this Court, which is a conscious contempt committed
by the respondents and such deliberate contemptuous acts of
the respondents should be punished either by invoking Order
XXXIX Rule 2A of ‘the Code’ or by initiating the proceedings
under the Contempt of Courts Act, 1971.
5.9 He would further submit that the contemptuous
conduct of a party has nothing to do with the ultimate outcome
of the matter, but it is in regards to the dignity and sanctity of
the Court’s orders and if the Court’s orders are flouted or
breached, regardless of the outcome of the matter or issue in
dispute, the Court is required to punish the contemnor.
Therefore, learned Senior Counsel submitted to allow the Civil
Applications filed to take the action against the alleged
contemnors.
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5.10 In all, in his ad-nauseam arguments, learned Senior
Counsel Mr. Mehul Shah submitted to allow all the three appeals
and to quash and set aside the impugned judgments and orders
and to hold that the idol of Lord Narsinhji is a private deity and
that the movable and immovable properties are personal
properties of the Mahant having secular character; and that the
appointment of the five respondents as Trustees of Lord
Narsinhji Temple Trust be set aside, and to take action against
them for breaching the order of this Court.
6. Per contra, learned Senior Counsel Mr. Percy Kavina,
assisted by learned advocate Mr. Tejas P. Satta, a fortiori
argument that the Division Bench of this Court, in a common
judgment in First Appeal No.803 of 1971 with First Appeal
No.222 of 1972, conclusively decided that the temple of Lord
Narsinhji is a public trust, which was registered in the year 1952
at Surat as Trust Registration No.A/1369/Surat and upon
bifurcation of the Valsad District, a new registration number was
assigned to the temple of Lord Narsinhji. Thereby, he submits
that the issue that the temple of Lord Narsinhji is a public trust
and that the idol of Lord Narsinhji is a public idol, where every
devotee can offer worship, pooja and aarti, having been
concluded, cannot be re-agitated in the present set of appeals.
6.1 He would further submit that the judgment and order
passed by the Division Bench of this Court in First Appeal
No.803 of 1971 and First Appeal No.222 of 1972 dated
11/12.08.1977 consciously has been carried to challenge by late
Mahant Dayaramdas before the Hon’ble Supreme Court by filing
Special Leave Petition (Civil) Nos.4249-4250 of 1978 and
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subsequently, withdrawn the same from the Supreme Court by
placing a withdrawal purshis with a liberty to raise the questions
already raised in the petition as and when the
petitioner/appellant adopts the proceedings against the
judgment of the High Court in the pending appeals. Therefore,
he submitted that the issue that the temple of Lord Narsinhji is a
public trust is no longer res-integra.
6.2 In his concise submission, learned Senior Counsel
Mr. Percy Kavina further submitted that be it Mahant
Dharamdas or be it the last Mahant Dayaramdas or any other
Mahant, all of them were merely Pujaris and they were just the
caretakers of the deity’s property. A Pujari cannot convert deity’s
property into the personal property. However, here it is a
completely opposite case, whereby the Pujaris consciously
converted the deity’s property into their personal property.
6.3 Learned Senior Counsel took this Court through
various documents on record and submitted that devotees from
the surrounding villages had idolatry faith, trust, devotion and
religious adoration upon the idol of Lord Narsinhji, and
therefore, they had gifted the various parcels of land to the
Mahant, respecting them as a “Bawa”, granted the various
parcels of the land to maintain their livelihood. Therefore, these
properties cannot be treated or considered as Mahant’s personal
properties. He would further submit that whatever properties
received by Mahant were gifted or properties that they were
keeping and maintaining Lord Narsinhji’s temple as and in
capacity of Mahant or Pujari, none of the gift is made in favor of
the Mahant in their personal character.
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6.4 He further submitted that if we go through the first
two wills prepared by the then Mahants, it rather favors the case
of the devotees and villagers that the properties were attached
with the Temple and were not the properties of secular nature
belonging personally to the Mahant.
6.5 He further submitted that the insatiable desire of the
Mahants converted not only the properties or parcels of land
gifted by the villagers, but also the Barkhali lands or the lands
donated by the erstwhile Baroda State for maintenance and
upkeep of the deity’s temple were also converted into personal
use and under the guise of obtaining permission to sell the
properties, under the reign of corrupt practice, the Mahants have
already sold huge chunks of the lands belonging to and owned
by Lord Narsinhji.
6.6 Pointing towards the conduct of the appellant,
learned Senior Counsel submitted that in Civil Application
No.244 of 1979 in First Appeal No.77 of 1979, the Division
Bench of the Gujarat High Court, while confirming the ad-
interim relief, made the modification in the terms that the
trustees may take the possession of the entire temple for
management, and the appellant will work as a Pujari under the
supervision of the Trustees and will be allowed to remain in
possession of the portion occupied by them as a Pujari.
6.7 Secondly, it was ordered by the Division Bench of this
Court regarding the other immovable properties, stay regarding
possession would continue only on the condition that the
security towards the satisfaction of the trial Court is furnished
for mesne-profits within six weeks.
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6.8 Learned Senior Counsel submitted that despite the
ad-interim relief was confirmed with the specific modification in
the aforesaid terms and conditions, by adopting a corrupt
practice the appellant has sold out almost all the immovable
properties being the subject matter of the appeals. He referred to
a chart placed on record and submitted that several chunks of
the parcels of lands were sold by the appellants at different
interval of time. However, learned Senior Counsel Mr. Mehul
Shah appearing for the appellant, disputed this chart.
6.9 Learned Senior Counsel referred to Exhibit-51 in the
inquiry proceedings conducted under Sections 19 and 20 of the
‘GPT Act’ by the Deputy Charity Commissioner and submitted
that the Mahant himself had furnished a list of the properties to
be the private properties and public properties. The learned
District Judge, while deciding the issue on remand, was pleased
to refer to the solemn admissions made by the Mahant in
Exhibit-51 and in backdrop of the surrounding circumstances,
has decided the issue rightly, correctly and properly.
6.10 Learned Senior Counsel referred to the judgment of
the Division Bench in First Appeal No.803 of 1971 along with
First Appeal No.222 of 1972 and submitted that the coordinate
Bench had comprehensively assigned reasons to decide the
nature of the properties being religious in nature and not holding
them to be of the secular one. However, since the learned
District Judge, at the relevant time, had decided the suit by only
deciding the few issues, the Division Bench was pleased to
remand the matter for a limited purpose, namely to decide the
other issues and to decide the nature of the properties finally.
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6.11 He would further submit that, in a proceedings which
took place on remand, Mahant Vijay, who is the appellant in the
appeal, despite having been joined as party respondent and duly
served, willfully and deliberately abstained from participating in
the proceedings. The evidence, which was led in the suit
proceedings and has been thoroughly discussed by the Division
Bench in a common judgment in First Appeal No.803 of 1971
with First Appeal No. 222 of 1972, no further evidence was led in
the remand proceedings. This evidence, therefore, remained
unimpeachable as the appellant did not participate in the suit
proceedings, clearly set the nature of all the properties as the
properties of secular nature.
6.12 He would further submit that the appellant - Mr.
Vijay, who did not contest the proceedings after it being
remanded by the Division Bench of this Court, now cannot come
out with some different and new contention.
6.13 In fine, he would submit that when the matter was
remanded by the Division Bench of this Court to the learned
District Court, the learned District Court was required to
separate the private properties from the array of the immovable
properties, nature of which had already been decided by the
Division Bench and therefore, when the matter was remanded,
the function of the learned District Court was limited, alike the
executive function rather than the judicial function.
6.14 He would further submit that it is the Mahant, who
was claiming that the properties are of a secular nature.
Therefore, in view of the Principle of Burden of Proof, the Mahant
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was required to prove that whatever parcels of the lands were
gifted to him or the Barkhali land, which were later on converted
into the different tenure lands, were in fact his private
properties. In absentia thereof, the presumption raised that it
was a property of religious nature and was gifted to the idol of
Lord Narsinhji or temple and in the name of the Mahant and
Mahant was given the limited access to take the produce of the
properties to maintain himself or the temple.
6.15 He would further submit that the grant of the various
Barkhali land by the erstwhile State of Baroda and also
monetary grant from the erstwhile State of Baroda, which later
seized to be granted on the request of the Mahant, amplifies that
everything was given to Lord Narsinhji or temple only. Even it
was within the mind of the Mahant. Therefore, when some of the
parcels of the land was sold, it was specifically stated therein in
the sale deed that it is a land of Lord Narsinhji and being the
Administrator of the Lord Narsinhji temple, the Mahant is selling
the same. Therefore, if any land is purchased from such
proceeds, it ipso-facto becomes the land of the temple.
6.16 Learned Senior Counsel Mr. Percy Kavina also
submits that though the tenure of the land given by the
erstwhile State of Baroda was changed to old tenure land, yet the
then Mahant asked the permission the permission from the
Revenue Officer of the erstwhile State of Baroda to sell the said
land, indicates that he was fully knowing that these lands were
belonging to the Lord Narsinhji temple and he being a Mahant,
Pujari of the temple, is only to Administer or manage the
properties. Therefore, all this evidence on record etched that the
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properties were public properties. The villagers have donated to
the temple, and therefore, the learned District Judge has rightly
decided the issue in the impugned judgment and order.
6.17 It is further argued by learned Senior Counsel Mr.
Percy Kavina that the Mahant Dayaram, who hotly contested the
entire proceedings and has also deposed endlessly in the inquiry
proceedings, to claim that the properties are of a secular nature
and belongs to him, failed to produce a single evidence on record
to show that he had some separate and personal income. Even
no evidence is produced on record to show or demonstrate that
the erstwhile Mahant had their own source of income.
6.18 He would submit that though it is pleaded that the
Mahants were doing the money lending business or one Mahant
was a partner in the floor-mill, the pleadings are far less than
the proof.
6.19 The Mahants, who are claimed to have their own
personal or independent income, to prove the same, could have
easily produced the books of account or account maintained by
them, but except bare words, nothing has been produced or
proved to claim any source of income or any independent
income, which sufficiently establish that whatever the money
was lying with the Mahants were only the donation given by the
devotees.
7. As far as the First Appeal No.4206 of 2024 is
concerned, it is argued by learned Senior Counsel Mr. Percy
Kavina that the District Judge has followed the provision under
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Section 47(4) of the ‘GPT Act’ to appoint the Trustees under
Section 47(3).
7.1 He would further submit that in absence of the
wishes of the author of the Trust, the learned District Judge has
taken the wishes of the persons from the Gram Sabha and
further taken up the object of the trust and to promote or
impede the object of the trust, has appointed the petitioners as
trustees. He would further submit that the appointment of the
trustee would be an ad-hoc appointment.
7.2 He would further submit that in a suit proceeding,
the District Judge has also framed a scheme and also decided
the mode of succession. However, in the appeal proceedings
before the High Court, the judgment and order passed by the
learned District Judge is stayed, appointing Mr. Mahant Vijay as
the only Pujari.
7.3 He would further submit that by the order dated
22.08.1979, the Division Bench of this Court, while confirming
the order of ad-interim relief passed on the 01.02.1979, handed
over the possession of the entire temple to the trustees
appointed under the judgment of the District Court. He would
submit that unfortunately, by the passage of time, these persons
have expired and the order of the District Court was stayed by
this Court. Therefore, no new trustees were appointed.
7.4 Mr. Vijay - the appellant was appointed as a Pujari,
continued such temple up to the year 2017, whereby every
person was visiting and worshiping in the temple. It is in this
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situation that the applicant of Civil Misc. Application (Trust)
No.56 of 2017 prayed to appoint the Trustees under Section 47
of the ‘GPT Act’. The learned District Court took up the opinion
from the public and appointed the five persons as Trustees. This
would mean an ad-hoc appointment till the scheme comes into
force.
7.5 He would further submit that the present appellant
has no reason to challenge such an order.
7.6 Learned Senior Counsel Mr. Percy Kavina submits
that by order dated 28.01.2025, the coordinate Bench while
confirming the stay, directed the learned Assistant Charity
Commissioner, Navsari to submit a report as regards the veracity
of the Resolution of Gram Sabha dated 26.01.2016 as well as the
credentials of the proposed trustees.
7.7 He would further submit that pursuant to the order
passed by the coordinate Bench, the Assistant Charity
Commissioner, Navsari has conducted a complete inquiry and
found another Resolution pari-materia to the Resolution of Gram
Sabha dated 26.01.2016, and also reported on the credentials of
the present trustees. This all assumes the significance and
states that the learned District Court has not committed any
error in appointing the five persons as Trustees. Therefore, the
appeal being a First Appeal No.4206 of 2024 is devoid of merit
and requires to be rejected.
7.8 As far as breach of the order is concerned, he would
submit that registering the name of the present respondent in an
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already registered trust, by any means, cannot be termed as a
‘breach’ or ‘violation’ of the injunction order, and therefore, such
application filed with a view to exert the pressure deserves to be
dismissed, and therefore, it is submitted to dismiss the Civil
Application for taking action for breach of injunction.
7.9 In all, the learned Senior Counsel submits to dismiss
the appeal and urges the Court to put an end to the endless
litigation, the advantage of which has been taken only by the
Mahants.
8. Ms. Dhwani R. Tripathi, learned AGP, places the
written submission on record and supports the impugned
orders, and submits that after the matter was remanded, the
learned District Judge has taken the independent and judicial
inquiry to decide the nature of the properties, be it secular or
religious.
8.1 She would further submit that the exercise
undertaken by the learned District Judge is found to be judicial
on the ground that the learned District Judge has excluded
multiple parcels of land from the array of public trust property
and held it unequivocally to be the immovable properties of the
Mahant, and that shows how an inquiry has been conducted
independently, without any bias and only based upon the
evidence on the record.
8.2 Relying upon the judgment of Dhaneshwarbuwa
Guru Purshottambuwa Owner of Shri Vithalrukha v. The
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Charity Commissioner, State of Bombay, reported in AIR
1976 Supreme Court 871, she would submit that in absence of
anything to the contrary of a convincing nature, grant by
Government in favor of temple describing the property to be in
charge of manager would lead to an unerring inference that
property is public religious endowment.
8.3 She referred to para 43, 44, 45, and 46 of the
judgment to buttress the contention that the erstwhile State of
Baroda granted the Barkhali land to the temple of Lord
Narsinhji, which is sufficient to establish the nature of the
property. When it is a Barkhali land, it is bound to be a land
granted for the seva/pooja of the temple.
8.4 She would further submit that the admitted evidence
on record indicates that the erstwhile State of Baroda was also
giving a grant to the temple, and later on, Mahant requested the
State of Baroda not to extend the grant, which was accepted by
the State of Baroda. This was a designed or strategic move to
remove the Barkhali nature of the land and to convert them into
the old tenure land. However, in view of Section 9 of the Baroda
Nibandh, despite the nature of the land was changed to old
tenure land, it remains of the character of Barkhali land given to
the temple, whereby the Mahant was in charge. Thus, the
immovable property given by the erstwhile State of Baroda
remains to be a religious endowment and fasten a religious
character upon the property.
8.5 Learned AGP Ms. Tripathi also referred to the
judgment in Sri Gedela Satchidananda Murthy (D) By LRs v.
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Dy. Commnr., Endowments Deptt., A.P. & Ors., reported in
(2007) 5 SCC 677.
8.6 She also referred to the recent judgment of the
Supreme Court in the case of AP State Wakf Board through
Chairperson v. Janaki Busappa, reported in 2026 INSC 413,
to argue that the grant of land for rendering religious or
charitable services to the temple (to a mosque in the judgment of
the Supreme Court) would render the character of property as a
religious or charitable endowment. Therefore, in view of the
aforesaid submission, the learned AGP supporting the impugned
judgment and orders, submits to dismiss these appeals with
cost.
9. Regard being had to the rival submissions of the
learned Counsel for both the sides and applying the mind to the
voluminous record and proceedings and the litigation, which
started since 1952 and the appeals in this Court firstly filed in
the year 1971 and then it is again in 1979, at the outset let me
examine the scope of the appeal under Section 72(4) of the ‘GPT
Act’ as out of three appeals, appeals of 1979 are filed under
Section 72(4) of the 'GPT Act'.
9.1 A coordinate bench of this Court, in the case of Sri R.
Thanikeswalam v. Sri Keshanmugam, reported in First Appeal
No. 3268 of 2018 (Neutral Citation: 2018 GUJHC 32254),
grappled with the identical issue of whether an appeal under
Section 72(4) of the Act of 1950 is a first appeal or a second
appeal, and the said issue was examined in paragraphs 16 to 20
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of the said judgment, which reads as under:-
“16. The short question of law is whether the appeal before
me should be treated as a 'First Appeal' as understood
under Section 96 of the Civil Procedure Code which deals
with appeals from original decree or whether this appeal,
though styled as 'First Appeal' in this Court, is in substance
and effect a Second Appeal, subject to the limitations of
Section 100 of the Civil Procedure Code where an appeal can
be entertained only if the High Court is satisfied that the
case involves a substantial question of law. Let me consider
the law on the subject.
17. In D.R.Pradhan v. The Bombay State Federation of
Goshalas and Panjarapoles, 1956 (58) BLR 894, though the
question arose in a different context while deciding the issue
of limitation for making an application for setting aside the
decision of the Charity Commissioner under Section 72(1) of
the Act, Chief Justice Chagla observed at page 896 as
under-
"Now, although S.72(1) confers a right upon a person
aggrieved by the decision of the Charity Commissioner
to apply to the City Civil Court, we must look at and
consider the real nature of the right that is conferred
by this sub-section. In substance, if not in form, the
right is in the nature of an appeal. The application is
intended to set aside the decision of the Charity
Commissioner and the City Civil Court must consider
that decision, and if satisfied that the decision is
erroneous, must set it aside and give the necessary
relief to the party aggrieved by that decision.
Therefore, in substance there is very little difference
between an application contemplated by Section 72(1)
and a right of appeal against the order of the Charity
Commissioner."
18. The above observations make it clear that, in substance,
the application made under Section 72(1) to the District
Court in the case before me was in the nature of an appeal.
In fact, it was an appeal against the order passed under
Section 50A of the said Act.
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19. A Division Bench of the Bombay High Court in the case
of Shivprasad Shankarlal Pardeshi v. Leelabai
Badrinarayan Kalwar, reported in AIR 1998 Bom 131, had
the occasion to consider this issue in details. After an
exhaustive review of various provisions of the Act and case-
law on the subject, the Division Bench ruled that an appeal
under Section 72(4) of the Act before the High Court will be
subject to the same limitations as are prescribed under
Section 100 CPC since there is nothing in Section 72(4) of the
Act, 1950, which confers a wider jurisdiction upon the High
Court while hearing such an appeal, though styled as a
'First Appeal'. I may quote the relevant observations thus :
"14. The question arose directly before the Apex Court
in Ramchandra Govind Pandit v. Charity
Commissioner, State of Gujarat, AIR 1987 SC 1598,
wherein the Deputy Charity Commissioner had started
a suo motu enquiry with regard to the nature of the
properties in dispute. He held that the properties were
of a public trust. Appeal against the said order was
dismissed by the Charity Commissioner. Application to
the City Civil Court was also dismissed. First Appeal
filed in the High Court of Gujarat was dismissed by
the High Court. The appellant then filed Letters Patent
Appeal. It was also dismissed, holding that the appeal
was not maintainable since the requisite certificate
under clause 15 of the Letters Patent was not obtained
by the appellant. It was against the dismissal of the
Letters Patent Appeal, that the appellant moved the
Apex Court. The Division Bench had dismissed the
Letters Patent Appeal relying upon an earlier judgment
rendered by another Division Bench in Hiragar
Dayagar v. Ratanlal, (1972) 13 Guj LR 181 : (AIR 1973
Guj 15). The raio of the decision of Hiragar's case is
that the single Judge who disposed of the appeal
under Section 72(4) was hearing an appeal in respect
of an order made in the exercise of appellate
jurisdiction by a Court subject to the superintendence
of the High Court and that, therefore, it was necessary
for the appellant to obtain a certificate from the single
Judge that the case was a fit one for appeal to the
Division Bench under clause 15 of the Letters Patent
Appeal.
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The Apex Court considered the contrary view
expressed by the Division Bench of this Court in
Khivaraj Chhagniram Zavar v. Shivshanker Basappa
Lingashetty, AIR 1974 Bom 40. This Court had held
that Section 72(1) of the Act provides a remedy by way
of an application only. Though the functions of the
District Judge under this section are similar to the
functions performed by an appellate Court, the
decision of the District Judge is not one in an appellate
jurisdiction. Hence, where a single Judge hears an
appeal from the decision of the District Judge under
Section 72, he does not hear an appeal from the
decision of an appellate Court within the meaning of
clause 15 of the Letters Patent and an appeal against
the decision of the single Judge in such a case can be
filed without obtaining leave from him. In arriving at
this conclusion in Khivraj's case, the Division Bench
had distinguished the ratio of D. R. Pradhan's case
which we have discussed above. The Apex Court case
considered the conflicting views of this Court in D. R.
Pradhan's case and in Khivaraj's case as also the
views expressed by Gujarat High Court in Hiragar
Dayagar's case. The Apex Court considered the
scheme of the provisions of the Bombay Public Trusts
Act and found it difficult to agree with the view
expressed in Khivaraj's case. The Apex Court
specifically agreed with the reasoning expressed by
Chief Justice Chagla in D. R. Pradhan's case as also
the view expressed in Hiragar's case. We find it
convenient to reproduce the observations of the Apex
Court in paragraphs 8 and 9 in Ramchandra Pandit's
case at page 1600 and 1601 :
"8. We have considered the reasoning in the three
judgments referred above. With respect, we find it
difficult to agree with the reasoning in AIR 1974
Bom 40. We agree with the reasoning in the other
two cases. The slender thread on which the
appellant's arguments rest is the absence of the
word "appeal" in S. 72(1). That alone cannot decide
the issue. If the well-known word "appeal" had been
used in this section that would have clinched the
issue. It is the absence of this word that has
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necessitated a closer scrutiny of the nature, extent
and content of the power under S.72(1).
9. The power of the District Court in exercising
jurisdiction under S. 72 is a plenary power. It is true
that the Commissioner is not subordinate to the
District Court but the District Court has powers to
correct, modify, review or set aside the order passed
by the Commissioner. All the characteristics of an
appeal and all the powers of an appellate Court are
available to the District Court while deciding an
application under S. 72. To decide this case we must
be guided not only by the nomenclature used by the
section for the proceedings but by the essence and
content of the proceedings. That being so, we have
no hesitation to hold that the proceedings before the
District Court under S. 72(1) are in the nature of an
appeal and that District Court exercises appellate
jurisdiction while disposing of a matter under S.
72(1). Consequently, the single Judge of the High
Court while deciding the appeal from the order of the
District Court deals with a matter made by the
District Judge in the exercise of an appellate
jurisdiction by a Court subject to the
superintendence of the High Court and hence Cl. 15
of the Letters Patent is directly attracted."
The ratio of the decision of Ramchandra Pandit's case
leaves no doubt in our mind that all the powers of an
appellate Court are available to the District Court while
deciding an "application" under S. 72 and we must not
decide these issues only by the nomenclature used by
the section but by the essence and content of the
power conferred upon the District Court or City Civil
Court under Section 72 of the Act. That being the
position, it would follow that the proceedings before
the District Court under Section 72(1) are undoubtedly
in the nature of an appeal and what the District Court
does is to exercise appellate jurisdiction while
disposing of the 'application' under Section 72(1). In
Ramchandra Pandit's case the Apex Court dismissed
the appeal on the ground that the High Court was right
in coming to the conclusion that no Letters Patent
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Appeal was maintainable in the absence of a
certificate under clause 15.
15. Since the question has been referred to us in the
light of an apparent conflict between the judgments of
some of the single Judges of this Court, we feel it
necessary to make a brief reference to them.
16. In Govindrao Devabasappa Manthalkar v. Apparao
Devabasappa Manthalkar, 1987 (3) Bom CR 493, A. C.
Agarwal, J. was dealing with an identical question as
to the nature of the proceedings before the District
Court under Section 72(1) of the Act. The other
question was as to whether the appeal filed against
the order of the District Court, though styled in this
Court as a 'First Appeal', should be treated as a
'Second Appeal' subject to the limitations imposed by
Section 100 of the Civil Procedure Code. On
construction of the relevant provisions of the Act and
relying upon the decision of the Apex Court in
Ramchandra Pandit's case, Agarwal, J. held that, if
one considered the scope, ambit and content of the
proceedings before the District Court it will have to be
held that the District Court would be exercising
appellate jurisdiction. The District Court while dealing
with an application under Section 72(1) was given the
power to confirm, revoke or modify a decision of the
Charity Commissioner. In substance the application is
intended to set aside the decision of the Charity
Commissioner and one must consider the real nature
of the right that is conferred by the sub-section.
Consequently it was held that the appeal though
styled as 'First Appeal' arises out of an order passed
by the District Court in appeal and hence the same
shall be treated as a second appeal which has to
satisfy the requirements of Section 100 of the Code of
Civil Procedure.
17. Maqbul Ahmed Miya Girav v. Hidayatulla Baldi,
1992 Mah LJ 1526, decided by one of us (Savant, J.),
dealt with a similar question and relying upon the
decision of the Apex Court in Ramchandra Pandit's
case, AIR 1987 SC 1598 (supra) and of this Court in D.
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R. Pradhan's case, 1956 (58) BLR 894, it was held
that the appeal under Section 72(4) of the Act to this
Court, though styled as 'First Appeal' was in the
nature of a 'Second Appeal' and will have to satisfy the
requirements of Section 100, C.P.C.
18. In Godawaribai w/o. Manilal Trivedi v. Rambhau
Madhaorao Fating, 1992 Mah LJ 230, M. S.
Deshpande, J. while dealing with a similar question
expressed a contrary view relying upon the judgment
of a learned single Judge of the Gujarat High Court (A.
M. Ahmadi, J., as His Lordship then was) in Miya
Mohamed Abdul Karim v. Collector of Surat, 1977 (18)
GLR 488. However, since the counsel agreed that the
matter should be disposed of on the basis of the
evidence and they would have no objection to the
evidence being considered, as if it was a First Appeal,
Deshpande, J. did not think it necessary to make a
reference to a larger Bench.
19. Recently, R. G. Vaidyanatha, J. while disposing of
a group of First Appeals (F.A. 1587 of 1996 and other
Companion Appeals) on 13th March, 1997 held that
though an appeal under Section 72(4) may be a second
appeal under the Act, it does not come within the
meaning of a Second Appeal under Section 100, C.P.C.
Vaidyanatha, J. referred to the views expressed by
other single Judges of this Court and though he agreed
that the appeal was a second appeal, he came to the
conclusion that, there were no words of limitation in
sub-section (4) of Section 72 so as to restrict the
powers of this Court as if it were a second appeal
under Section 100, C.P.C.
20. At this stage, it is necessry to mention that the
view expressed by the Apex Court in Ramchandra
Pandit's case (supra) has been recently reiterated by
the Apex Court n Nanabhai Dayabhai Patel v. Suleman
Isubji Dadabhai, AIR 1996 SC 1184. The Apex Court
was dealing with an appeal by Special Leave from the
judgment of the Gujarat High Court in L.P.A. No. 10/76
decided on July 27, 1979. In that case the initial
enquiry was before the Assistant Charity
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Commissioner under Section 18 of the Act. Against the
order of registration the matter was carried in Appeal
under Section 70 of the Act, which appeal was
dismissed by the Charity Commissioner. The First
Appeal to the High Court was allowed and a further
Letters Patent Appeal was allowed by the Division
Bench. On an Appeal by Special Leave to the Apex
Court, the question arose as to whether the Letters
Patent Appeal against the decision of the single Judge
would lie, without obtaining the requisite leave under
clause 15. In paragraph 4 of the judgment at page
1186, the Apex Court referred to its earlier decision in
Ramchandra Pandit's case (supra), summarized the
facts and the ratio in that case and concluded thus in
para 5 of the judgment at page 1186 :
"5. Consequently, this Court had held that the
Letters Patent Appeal against the decision of the
learned single Judge did not lie. The same ratio
applies to the facts in this case. Leave of the learned
single Judge was admittedly not obtained for filing
the appeal. Consequently, since the appeal of the
learned single Judge arises under the Act by virtue
of the statutory conferment of supervisory
jurisdiction, by operation of earlier part of clause 15
of the Letters Patent Act would vest in him. The
Letters Patent Appeal would not lie to the Division
Bench unless the certificate of the learned single
Judge has been granted for leave to appeal. In that
view, the appeal to the Division Bench was
incompetent and is accordingly set aside."
The above ratio of the Apex Court decision leaves no
doubt in our mind that the appeal under Section 72(4)
is in the nature of a second appeal against which
alone, leave under clause 15 of the Letters Patent is
required for a further appeal to the Division Bench. It is
obvious that if the appeal under Section 72(4) to the
High Court was, in substance, a 'First Appeal' and
was not a 'Second Appeal', there was no question of
insisting upon leave under clause 15 being obtained
before filing a Letters Patent Appeal to the Division
Bench.
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21. There is yet another aspect of the matter which
has not been considered in any of the judgments of
this Court and we think it necessary to make a
reference to the same. Sub-section (1) of Section 4 of
the C.P.C. provides that, in the absence of any specific
provisions to the contrary, nothing in the C.P.C. shall
be deemed to limit or otherwise affect any special or
local law now in force or any special jurisdiction or
power conferred, or any special form of procedure
prescribed by or under any other law for the time
being in force. Sub-section (1) of Section 100 of C.P.C.
provides that save as otherwise expressly provided in
the body of the C.P.C. or by any other law for the time
being in force, an appeal shall lie to the High Court
from every decree passed in appeal by any Court
subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question
of law. In our view, therefore, if a special law does not
otherwise widen the scope of a 'second appeal', such a
second appeal must conform to the limits imposed by
Section 100 of the C.P.C. There may be cases where a
special statute provides for the remedy of a second
appeal and specifically confers power wider than
those contemplated by Section 100, C.P.C. In such a
case, it may be possible to contend that having regard
to the opening words of sub-section (1) of Section 100,
C.P.C., a second appeal on ground wider than those
provided in Section 100, C.P.C., could be entertained if
the special law so provides.
22. In Chunilal Vithaldas v. Mohanlal Motilal Patel,
AIR 1967 SC 226, the question arose in the context of
the provision for a second appeal under Section 28 of
the Saurashtra Rent Control Act, 1951. The question
was whether the appellate Court dealing with the
second appeal was bound by the same restrictions as
are imposed by Section 100, C.P.C. It was argued
before the Apex Court that a second appeal under
Section 28(1) of the Saurashtra Rent Control Act, 1951
meant an appeal from an appellate decree but the
restrictions imposed by Section 100, C.P.C., upon the
power of the High Court were not attracted to a
"second appeal" under Section 28 of the Saurashtra
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Act. The Apex Court considered the scheme of the
provisions of the Saurashtra Act, 1951 and of the
C.P.C., and concluded in para 9 of the judgment that
the Saurashtra Act had merely declared that the
second appeal will lie to the High Court against the
decrees or orders passed by the Courts exercising
jurisdiction under Section 27, but thereby the essential
character of a second appeal under the C.P.C. was not
altered. There was nothing in the Special Act to
conclude that the Legislature had intended to confer
upon litigants a right of second appeal unhampered by
the restrictions imposed by Section 100, C.P.C. The
Apex Court concluded that in a second appeal under
Section 28 of the Saurashtra Act, questions which
cannot be raised in an appeal under Section 100,
C.P.C., could not be raised. It was, therefore, held that
a second appeal under Section 28 of the said Act may
be entertained by the High Court within the limits
prescribed by S. 100, C.P.C. and it is not open to the
parties to demand reappraisal of the evidence by the
High Court. Observations to this effect are also to be
found in paras 10 and 12 of the said decision at page
228.
23. We find the same principle enunciated by the Apex
Court in State of Himachal Pradesh v. Maharani Kam
Sundri, AIR 1993 SC 1162. This was a case where the
special law gave wider powers to the High Court and
by virtue of Section 104 of the Himachal Pradesh
Abolition of Big Landed Estates and Land Reforms Act,
1953, the High Court was entitled to reappraise the
evidence and come to its own findings even in a
Second Appeal. Since the special law viz. the said
Himachal Pradesh Act conferred wider powers by
virtue of Section 104 on the High Court, it was held
that the limitations imposed by Section 100, C.P.C. on
the powers of the High Court to interfere with the
findings of fact were not applicable and, hence, the
High Court was entitled to reappraise the evidence
and come to its own findings in view of the wider
scope of Section 104 of the Special Act. These
observations are to be found in para 3 of the judgment.
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24. We may also refer to a Full Bench decision of the
Punjab and Haryana High Court in Ganpat v. Smt.
Ram Devi, AIR 1978 P and H 137. S. S. Sandhawalia,
J. (as he then was) dealt with the provisions of Section
41 of the Punjab Courts Act, 1918 which were no way
affected or curtailed by the amended provisions of
Section 100, C.P.C. The provisions of Section 41 of the
Punjab Courts Act were virtually in pari materia with
the unamended provisions of Section 100, C.P.C. But,
though provisions of Section 100, C.P.C. were
amended by the Amending Act of 1976, there was no
corresponding amendment to Section 41 of the Punjab
Courts Act, under which the second appeal was
entertained. Relying upon the provisions of sub-section
(1) of Section 4 as also sub-section (1) of Section 100,
C.P.C. the Full Bench came to the conclusion that if the
special law had conferred wider jurisdiction on the
High Court while dealing with the Second Appeal
under Section 41 of the Special Law, the limits
imposed by Section 100, C.P.C. could not curtail such
powers. These conclusions are to be found in paras 11
to 14 of the judgment at page 140 of the report.
25. In view of the law laid down by the Apex Court in
the two cases discussed in paras 22 and 23 above
(Chunilal Vithaldas's case and Maharani Kam Sundri's
case (supra)) as also the view expressed by the Full
Bench of the Punjab and Haryana High Court in
Ganpat's case (para 24 above) coupled with the fact
that the ratio of the Apex Court decision in
Ramchandra Pandit's case (supra) has been reiterated
in Nanabhai Dayabhai Patel's case (supra) and having
regard to the fact that Section 72(4) of the Bombay
Public Trusts Act, does not confer any powers wider
than those conferred by Section 100, C.P.C. while
dealing with a second appeal, we are clearly of the
view that the answer to the first part of first question
referred by the learned single Judge must be in the
affirmative. We, therefore, hold that an appeal filed
under Section 72(4) of the Bombay Public Trusts Act, is
subject to the restrictions and limitations imposed
under Section 100, C.P.C. while entertaining a Second
Appeal. Consequently it would follow that an appeal
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under Section 72(4) would lie to this Court only if the
High Court is satisfied that the case involves a
substantial question of law. In substance, such an
appeal will be subject to the same limitations as are
prescribed under Section 100, C.P.C. since there is
nothing in Section 72(4) of the Bombay Public Trusts
Act which confers a wider jurisdiction upon this Court
while hearing such an appeal, though styled as a First
Appeal."
20. I have to my advantage a Division Bench decision of
this Court in the case of Parvez Rustamji Bharda v. Navrojji
Sorabji Tamboly and others, AIR 2001 Gujarat 160. A
Division Bench of this Court, in the above referred case, has
taken the view that when a Single Judge of a High Court
renders a judgment in exercise of jurisdiction under Section
72 of the Act, 1950, he exercises appellate jurisdiction
against a decree passed or order made in exercise of an
appellate jurisdiction. To put it differently, he exercises
jurisdiction as a second appellate court and not as a first
appellate court. Let me clarify that although the Division
Bench decision of this Court was in a different context, i.e.
with regard to right to file an intra court appeal to a Division
Bench, yet the observations fortify the view taken by the
Division Bench of the Bombay High Court, referred to above.
I may quote the relevant observations thus :
‘5. The question, therefore, before us is as to whether
LPA against the order passed by the learned single
Judge in FA under Section 72 of the Act would be
competent. In our opinion, such appeal would not lie
and the point is no more res-integra as it is covered by
the Division Bench of this Court in Hiragar Dayagar
(AIR 1973 Guj 15). In Hiragar Dayagar , almost in
identical situation, the Court was called upon to
consider the provisions of Sections 70 to 76 of the Act
read with Clause 15 of the Letters Patent and
maintainability of LPA.
Clause 15 of the Letters Patent of Bombay as
applicable to this Court, reads thus :
"15. And we further ordain that an appeal shall lie to
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the said High Court of Judicature at Fort William in
Bengal from the judgment (not being a judgment
passed in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of
appellate jurisdiction by a Court subject to the
superintendence of the said High Court, and not
being an order made in the exercise of revisional
jurisdiction and not being a sentence or order
passed or made in the exercise of power of
superintendence under the provisions of Sec. 107 of
the Government of India Act or in the exercise of
criminal jurisdiction) of one Judge of the said High
Court or one Judge of any Division Court, pursuant
to Sec. 108 of the Government of India Act, and that
notwithstanding anything hereinbefore provided an
appeal shall lie to the said High Court from a
judgment of one Judge of the said High Court or one
Judge of any Division Court, pursuant to Sec. 108 of
the Government of India Act made (on or after the
first day of February, 1929) in the exercise of
appellate jurisdiction in respect of a decree or order
made in the exercise of appellate jurisdiction by a
Court subject to the superintendence of the said
High Court, where the Judge who passed the
judgment declares that the case is a fit one for
appeal; but that the right of appeal from other
judgments of Judges of the said High Court or of
such Division Court shall be to us. Our heirs or
successors in Our or Their Privy Council, as
thereafter provided."
6. In Hiragar Dayagar (AIR 1973 Guj 15), this Court
observed that Clause 15 provides a right of appeal
from a judgment of one Judge of the High Court to a
Division Bench of the High Court. It, however, states
that an appeal shall lie from "a judgment of one Judge
of the High Court in the exercise of appellate
jurisdiction in respect of a decree or order made in the
exercise of appellate jurisdiction by a Court subject to
the superintendence of the High Court where the
Judge who passed the judgment declares that the
case is a fit one for appeal". In other words, if a single
Judge of the High Court exercises appellate jurisdiction
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against a decree passed in exercise of appellate
jurisdiction and renders a judgment, no appeal as of
right would lie against such judgment.
7. In Hiragar Dayagar (AIR 1973 Guj 15), ambit and
scope of the expression 'appellate jurisdiction' was
considered by the Division Bench. Referring to the
relevant provisions of the Act, Bhagwati, C. J. (as he
then was) observed (Para 3) :
"The argument of the appellants was that Sec. 72
sub-sec. (1) speaks only of an application to the
Court to set aside the decision of the Charity
Commissioner and it does not provide for an appeal
against the decision of the Charity Commissioner. It
is significant, pointed out the appellants, that
though the legislature has used the word "appeal"
in Secs. 70 and 71, it has departed from this
nomenclature in Sec. 72 and while dealing with the
proceedings under Sec. 72, it has deliberately and
advisedly omitted to use the word "appeal" and
characterised that proceeding as an application.
The proceeding under Sec. 72 cannot, therefore, be
regarded as an appeal to the District Court against
the decision of the Charity Commissioner and when
the District Court exercises its jurisdiction in relation
to an application under Sec. 72, it does not exercise
appellate jurisdiction but it exercises a special
jurisdiction conferred upon it by Sec. 72. If,
contended the appellants, the legislature intended
to confer appellate jurisdiction on the District Court,
the legislature would have used the well known
and familiar expression "appeal" which it has used
in Secs.70 and 71 but the legislature not having
used this expression, the inference must be
inevitably raised that the jurisdiction which the
legislature intended to confer on the District Court
under Sec. 72 was not appellate jurisdiction but
jurisdiction of a special nature. The Charity
Commissiner who is the fourth respondent before
us supported this line of argument advanced on
behalf of appellants. Respondents Nos. 1 to 3,
however, urged that the nomenclature used by the
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legislature in Sec. 72 was immaterial. What was
required to be considered was as to what was the
real nature and character of the jurisdiction
conferred on the District Court and this could be
determined only on a proper consideration of the
scope and ambit of the powers exercisable by the
District Court in an application under Sec. 72.
Respondents Nos. 1 to 3 pointed out that the
powers conferred on the District Court while dealing
with an application under Sec. 72 were, clearly
appellate powers and though the words "appeal"
was not used by the legislature, it was really
appellate jurisdiction which was being exercised by
the District Court while dealing with an application
under Section 72. These were the rival contentions
of the parties which we shall now proceed to
consider."
8. Considering earlier decisions, the Court proceeded
to state (Para 5) :
"Now, it may be noticed that the District Court in an
application under Sec. 72 is given the power to
confirm, revoke or modify the decision of the Charity
Commissioner and there are no limits or fetters
upon this power. The entire matter which was
before the Charity Commissioner is at large before
the District Court and the District Court has full and
complete power to review the decision of the Charity
Commissioner, either on law or on fact, in such
manner as it thinks proper. If this be not an
appellate power, it is difficult to see what else it can
be. It is true that the Charity Commissioner is not
subordinate to the District Court in the sense that
the District Court has no power of superintendence
over the Charity Commissioner but there can be no
doubt that inter alia in the matter of his decisions
under Sec. 70, the Charity Commissioner is inferior
to the District Court in that the District Court has
power to revoke or modify his decisions. What is of
the essence of an appeal is that a superior Tribunal
should have the power to review the decisions of
the inferior Tribunal and that power of the District
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Court certainly has under Sec. 72. The District
Court, as we have already pointed out, may
confirm, revoke or modify the decisions of the
Charity Commissioner on an application under Sec.
72. The District Court may also, in the exercise of its
inherent power under Section 76 read with Sec. 151
of the Code of Civil Procedure, make an order of
remand to the Charity Commissioner, if the District
Court thinks it necessary to do so in a proper case.
Vide Chandrakant v. Charity Commissioner, (1965)
6 Guj LR 649. We may point out that sub-section
(1A) of Sec. 72 also reinforces the view that the
power conferred on the District Court under Sec. 72
is an appellate power. The provision enacted in Sec.
(1A) of Sec. 72 is in identical terms as Order 41,
Rule 27 of the Code of Civil Procedure and it0
emphasizes that what the District Court is called
upon to do under Sec. 72 is to review the
correctness of the decision of the Charity
Commissioner on the evidence which was before
him and this is clearly a characteristic of appellate
power. There can, therefore, be no doubt that
though the word "appeal" is not used by the
Legislature and the proceedings under Sec. 72 is
designated as an application, the jurisdiction
conferred on the District Court while dealing with
such proceeding is appellate jurisdiction.
9. The Court thus concluded that when the District
Court dealt with an application under Section 72 of the
Act, it exercised appellate jurisdiction and when the
learned single Judge heard an appeal against that
order, he can be said to have exercised appellate
jurisdiction against a decree passed in exercise of
appellate jurisdiction and consequently, no LPA would
lie without getting a certificate of fitness from the
learned single Judge who decided the matter. Since in
that case, no such certificate of fitness was obtained,
LPA was held not maintainable.
10. It is no doubt true that the Division Bench of the
High Court of Bombay in Khivaraj Chhagniram, (AIR
1974 Bombay 40) had taken a contrary view. But
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apart from the fact that the said judgment is not
binding to this Court and Hiragar Dayagar (AIR 1973
Guj 15) is binding to us, reading Khivaraj Chhagniram,
it is obvious that attention of the Court was not invited
to the decision of this Court in Hiragar Dayagar.
Moreover, the Division Bench of the Bombay High
Court in Khivaraj Chhagniram did not consider
relevant provisions of the Act. It was also of the view
that Clause 15 of the Letters Patent must be construed
in the light of the words and expressions used therein
by giving natural meaning and one should not go
beyond the express language of the said clause.
The Court stated :
"14. It may be remembered that a remedy like an
appeal is a creature of law. Unless an appeal is so
provided, there does not seem any right in a litigant
to approach some higher Court or tribunal by way
of an appeal. The expression "appeal" is also a term
of an art. The legislature which is fully aware of the
difference between the various remedies has
chosen in the circumstances of this case, the
expression may. . . apply' under Section 72 as
against the expression 'an appeal' under Sections
70 and 71. Ordinarily, it is true that when original
jurisdiction is being exercised the litigating parties
have a right to lead evidence. It is a fundamental
right of a party of being heard. The hearing which
denies the right of leading evidence could hardly be
described as hearing. However, we do not think
how the legislature could not divide the right of
being heard into different parts and provide a
particular tribunal for leading evidence and another
tribunal having a higher experience and position to
re-examine the entire evidence recorded, by way of
an independent remedy. Whether this remedy could
be an appeal must depend upon the language used
by the legislature. It may be that the functions
performed by the Court under this remedy may
have similarity with the functions performed
otherwise by the appellate Courts. It may be that
the legislature has resorted to this time saving
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device by directing evidence to be recorded before
the Deputy or Assistant Charity Commissioner and
a further examination of that evidence by way of an
appellate remedy by a higher departmental officer
viz. Charity Commissioner. However, when the first
remedy to approach to a civil Court is made
available the legislature has in terms provided an
application and not an appeal. It would not be
therefore proper to confuse the nature and the
functions of the Court under Section 72 with the
technical remedy of an appeal which has to be so
provided by the legislature ."
11. The Court, therefore, concluded :
"16. In the present case, the narrow question is,
whether the Letters Patent Appeal could be filed, as
the language goes, as of right or must be filed only
with the leave of the learned single Judge?
Undoubtedly both are rights of appeal. In one case
the party can directly approach a Division Bench
and try its luck. In the other case, he has first to
obtain leave of that Judge who had decided the
matter and then file the appeal. Undoubtedly, the
second remedy is more onerous and seeks to curtail
the right of appeal to some extent. If it could be held
in the present case that the Court under Section 72
was itself exercising the appellate jurisdiction, then
undoubtedly, the present appeals filed without the
leave of the learned single Judge are incompetent.
Such appeals lie only with his leave and not
otherwise. If otherwise it could be held, as the
natural meaning of the expression suggests, that
Section 72 provides a remedy by way of an
application only, and though the inquiry held by the
District Court seems to have some semblance of an
appellate jurisdiction, it is not a jurisdiction created
by the legislature as an appellate jurisdiction. It is
only where the jurisdiction is appellate and a
decision in exercise of such jurisdiction is given,
and the High Court has also exercised the appellate
jurisdiction, that the bar contemplated by Clause 15
of the Letters Patent of obtaining leave of the Court
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seems to come in."
12. On the basis of the above reasoning, the Court
negatived the preliminary objection raised on behalf of
the respondent and held that LPA was maintainable.
13. We may, however, state that after Hiragar
Dayagar (AIR 1973 Guj 15) and Khivaraj Chhagniram
(AIR 1974 Bombay 40), the point came up for
consideration before the Supreme Court in
Ramchandra Govardhan Pandit v. Charity
Commissioner, State of Gujarat, AIR 1987 SC1598.
The Apex Court was called upon to consider
correctness or otherwise of two conflicting views - one
of the High Court of Gujarat in Hiragar Dayagar and
other of the High Court of Bombay in Khivaraj
Chhagniram. Approving the view of the High Court of
Gujarat and overruling the view of the High Court of
Bombay, the Supreme Court observed :
"8. We have considered the reasoning in the three
judgments referred above. With respect, we find it
difficult to agree with the reasoning in AIR 1974
Bombay 40. We agree with the reasoning in the
other two cases. The slender thread on which the
appellants' arguments rest is the absence of the
word "appeal" in S. 72(1). That alone cannot decide
the issue. If the well known word "appeal" had
been used in this section that would have clinched
the issue. It is the absence of this word that has
necessitated a closer scrutiny of the nature, extent
and content of the power under S. 72(1).
9. The power of the District Court in exercising
jurisdiction under S. 72 is a plenary power. It is
true that the Commissioner is not subordinate to the
District Court but the District Court has power to
correct, modify, review or set aside the order
passed by the Commissioner. All the characteristics
of an appeal and all the powers of an appellate
Court are available to the District Court while
deciding an application under S. 72. To decide this
case, we must be guided not only by the
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nomenclature used by the section for the
proceedings but by the essence and content of the
proceedings. That being so, we have no hesitation
to hold that the proceedings before the District Court
under S. 72(1) are in the nature of an appeal and
that District Court exercises appellate jurisdiction
while disposing case and hence Cl. 15 of the Letters
Patent is directly attracted ."
14. The above view was reiterated by the Supreme
Court in Naranbhai Dayabhai Patel v. Suleman Isubji
Dadabhai, AIR 1996 SC 1184.
From the above discussion, in our judgment, the legal
position is fairly well settled and it is that when a
single Judge of a High Court renders a judgment in
exercise of jurisdiction under Section 72 of the Bombay
Public Trusts Act, 1950, he exercises appellate
jurisdiction against a decree passed or order made in
exercise of appellate jurisdiction. To put it differently,
he exercises jurisdiction as a second appellate Court
and not as a first appellate Court and hence, a party
aggrieved by a 'judgment' rendered by the single
Judge cannot, as of right, file an intra-Court appeal to
a Division Bench of the same High Court without
obtaining certificate of fitness from the single Judge
who decided the matter.’ ”
Bearing in mind the scope of the present appeal as
discussed, deliberated, and decided by the coordinate bench, the
present appeals are to be decided accordingly.
9.2 First, let deal with the argument of Mr. Mehul Shah,
learned Senior Counsel, on the aspect of substantial question of
laws arise and if the learned trial Court had not considered
evidence properly or considered irrelevant evidence. Let me take
the worthy assistance from the judgment State Bank of India
& Ors. v. S.N. Goyal, reported in (2008) 8 SCC 92, whereby the
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Supreme Court laid down the law what is substantial question of
law and when it arises. It held as follows:-
“What is a substantial question of law?
13. Second appeals would lie in cases which involve
substantial questions of law. The word 'substantial' prefixed
to 'question of law' does not refer to the stakes involved in
the case, nor intended to refer only to questions of law of
general importance, but refers to impact or effect of the
question of law on the decision in the lis between the
parties. 'Substantial questions of law' means not only
substantial questions of law of general importance, but also
substantial question of law arising in a case as between the
parties. In the context of section 100 CPC, any question of
law which affects the final decision in a case is a
substantial question of law as between the parties. A
question of law which arises incidentally or collaterally,
having no bearing in the final outcome, will not be a
substantial question of law. Where there is a clear and
settled enunciation on a question of law, by this Court or by
the High Court concerned, it cannot be said that the case
involves a substantial question of law. It is said that a
substantial question of law arises when a question of law,
which is not finally settled by this court (or by the concerned
High Court so far as the State is concerned), arises for
consideration in the case. But this statement has to be
understood in the correct perspective. Where there is a clear
enunciation of law and the lower court has followed or
rightly applied such clear enunciation of law, obviously the
case will not be considered as giving rise to a substantial
question of law, even if the question of law may be one of
general importance. On the other hand, if there is a clear
enunciation of law by this Court (or by the concerned High
Court), but the lower court had ignored or misinterpreted or
misapplied the same, and correct application of the law as
declared or enunciated by this Court (or the concerned High
Court) would have led to a different decision, the appeal
would involve a substantial question of law as between the
parties. Even where there is an enunciation of law by this
court (or the concerned High Court) and the same has been
followed by the lower court, if the appellant is able to
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persuade the High Court that the enunciated legal position
needs reconsideration, alteration, modification or
clarification or that there is a need to resolve an apparent
conflict between two view points, it can be said that a
substantial question of law arises for consideration. There
cannot, therefore, be a strait-jacket definition as to when a
substantial question of law arises in a case. Be that as it
may.
Procedure relating to second appeals
14. We may next refer to the procedure relating to second
appeals as evident from section 100 read with order 42
Rules 1 and 2, of Code of Civil Procedure :
(a) The appellant should set out in the memorandum of
appeal, the substantial questions of law involved in the
appeal.
(b) The High Court should entertain the second appeal only if
it is satisfied that the case involves a substantial question of
law.
(c) While admitting or entertaining the second appeal, the
High Court should formulate the substantial questions of
law involved in the case.
(d) The second appeal shall be heard on the question/s of
law so formulated and the respondent can submit at the
hearing that the second appeal does not in fact involve any
such questions of law. The Appellant cannot urge any other
ground other than the substantial question of law without
the leave of the court.
(e) The High Court is at liberty to reformulate the substantial
questions of law or frame other substantial question of law,
for reasons to be recorded and hear the parties or such
reformulated or additional substantial questions of law.
15. It is a matter of concern that the scope of second
appeals and as also the procedural aspects of second
appeals are often ignored by the High Courts. Some of the
oft-repeated errors are :
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(a) Admitting a second appeal when it does not give rise
to a substantial question of law.
(b) Admitting second appeals without formulating
substantial question of law.
(c) Admitting second appeals by formulating a standard
or mechanical question such as "whether on the facts
and circumstances the judgment of the first appellate
court calls for interference" as the substantial question
of law.
(d) Failing to consider and formulate relevant and
appropriate substantial question/s of law involved in
the second appeal.
(e) Rejecting second appeals on the ground that the case
does not involve any substantial question of law, when
the case in fact involves substantial questions of law.
(f) Reformulating the substantial question of law after
the conclusion of the hearing, while preparing the
judgment, thereby denying an opportunity to the parties
to make submissions on the reformulated substantial
question of law.
(g) Deciding second appeals by re-appreciating evidence
and interfering with findings of fact, ignoring the
questions of law.
These lapses or technical errors lead to injustice
and also give rise to avoidable further appeals to this
court and remands by this court, thereby prolonging the
period of litigation. Care should be taken to ensure that
the cases not involving substantial questions of law are
not entertained, and at the same time ensure that cases
involving substantial questions of law are not rejected,
as not involving substantial questions of law.”
9.3 In Boodireddy Chandraiah and Ors. v. Arigela
Laxmi and Anr., reported in (2007) 8 SCC 155, the Supreme
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Court laid down the principle relating to Section 100 of ‘the
Code’ as under:-
“4. ‘…24. The principles relating to Section 100 CPC,
relevant for this case, may be summerised thus:-
(i) An inference of fact from the recitals or contents of a
document is a question of fact. But the legal effect of the
terms of a document is a question of law. Construction of a
document involving the application of any principle of law, is
also a question of law. Therefore, when there is
misconstruction of a document or wrong application of a
principle of law in construing a document, it gives rise to a
question of law.
(ii) The High Court should be satisfied that the case
involves a substantial question of law, and not a mere
question of law. A question of law having a material bearing
on the decision of the case (that is, a question, answer to
which affects the rights of parties to the suit) will be a
substantial question of law, if it is not covered by any
specific provisions of law or settled legal principle emerging
from binding precedents, and, involves a debatable legal
issue. A substantial question of law will also arise in a
contrary situation, where the legal position is clear, either on
account of express provisions of law or binding precedents,
but the court below has decided the matter, either ignoring
or acting contrary to such legal principle. In the second type
of cases, the substantial question of law arises not because
the law is still debatable, but because the decision rendered
on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not
interfere with concurrent findings of the Courts below. But it
is not an absolute rule. Some of the well recognized
exceptions are where (i) the courts below have ignored
material evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts by applying
the law erroneously; or (iii) the courts have wrongly cast the
burden of proof. When we refer to 'decision based on no
evidence', it not only refers to cases where there is a total
dearth of evidence, but also refers to any case, where the
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evidence, taken as a whole, is not reasonably capable of
supporting the finding’. ”
9.4 Lastly, in Hero Vinoth v. Seshammal, reported in
(2006) 5 SCC 545, the Supreme Court laid down the following
principles in regards to an appeal under Section 100 of ‘the
Code’, as under:-
“21. The phrase ‘substantial question of law’, as occurring
in the amended Section 100 CPC is not defined in the Code.
The word substantial, as qualifying ‘question of law’, means
of having substance, essential, real, of sound worth,
important or considerable. It is to be understood as
something in contradistinction with-technical, of no
substance or consequence, or academic merely. However, it
is clear that the legislature has chosen not to qualify the
scope of ‘substantial question of law’ by suffixing the words
‘of general importance’ as has been done in many other
provisions such as Section 109 of the Code or Article 133(1)
(a) of the Constitution. The substantial question of law on
which a second appeal shall be heard need not necessarily
be a substantial question of law of general importance. In
Guran Ditta v. Ram Ditta [(1927-28) 5I5 IA 235 : AIR 1928
PC 172] the phrase substantial question of law as it was
employed in the last clause of the then existing Section 100
CPC (since omitted by the Amendment Act, 1973) came up
for consideration and their Lordships held that it did not
mean a substantial question of general importance but a
substantial question of law which was involved in the case.
In Sir Chunilal case [1962 Supp (3) SCR 549 : AIR 1962 SC
1314] the Constitution Bench expressed agreement with the
following view taken by a Full Bench of the Madras High
Court in Rimmalapudi Subba Rao v. Noony Veeraju [AIR
1951 Mad 969 : (1951) 2 MLJ 222 (FB)] : (Sir Chunilal case
[1962 Supp (3) SCR 549 : AIR 1962 SC 1314] , SCR p. 557)
‘When a question of law is fairly arguable, where there is
room for difference of opinion on it or where the Court
thought it necessary to deal with that question at some
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length and discuss alternative views, then the question
would be a substantial question of law. On the other
hand if the question was practically covered by the
decision of the highest court or if the general principles to
be applied in determining the question are well settled
and the only question was of applying those principles to
the particular fact of the case it would not be a
substantial question of law.’ ”
9.5 It is in this background, and applying the aforesaid
law, this Court proceeds to decide the rival submissions of the
learned Counsel for both the sides.
10. Let begin with observation and finding that the
temple of Lord Narsinhji is a public trust and the deity is a
public deity is no more res-integra. The issue was squarely
decided by the Division Bench of this Court in the common
judgment of First Appeal No.803 of 1971 with First Appeal No.
222 of 1972, whereby the challenge by way of SLP to this order
was made before the Apex Court, which has been withdrawn
with the liberty to reagitate the issue about the public trust
when the order of the High Court is carried up to the Supreme
Court. Thus, there is no substantial hue and cry on the factual
position that the Lord Narsinhji’s temple is a public trust. Even
the order dated 22.08.1979 confirming the rule and interim-
relief in First Appeal No.77 of 1979, abundantly makes it clear
that the status of late Mahant Dayaram, who at the relevant time
was the appellant, was no more than a Pujari of the temple and
the respondents therein were held to be the trustees of the
public trust. This order was never carried to challenge and
makes it relevant to hold that the temple of Lord Narsinhji is a
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public trust. The present appellant – Mr. Vijay is neither legally
appointed Poojari of the temple nor he is declared as a Chela of
the late Mahant Dayaram.
11. In Dhaneshwarbuwa Guru (Supra), the question
arose in background of the provision of the ‘GPT Act’ that
whether a temple, a math, a wakf, a dharmada or any other
religious or charitable endowment and society formed either for a
religious or charitable purpose or may be registered under the
Societies Registration Act, can be treated as a ‘public trust’. The
Supreme Court taking aid of Sections 2(13) and 2(17) of the ‘GPT
Act’, examined the issue.
12. The law laid down in Dhaneshwarbuwa Guru
(Supra), which refers the judgment in the case of Devki Nandan
v. Murlidhar, reported in AIR 1957 SC 133, has been
advantageously referred to by the Division Bench while passing
the judgment dated 11/12.08.1977 in First Appeal No.803 of
1971 and First Appeal No.222 of 1972, relevant observation
reads as under:-
The legal position in this connection is very well settled
in Dhaneshwarbuwa Guru Purshottambuwa vs. Charity
Commissioner, Bombay. A.I.R. 1976 S.C. 871. The question
had arisen under the same provisions of the Bombay Public
Trust Act, 1950. Section 2(13) defines a public trust to mean
an express or constructive trust for either a public religious
or charitable purpose or both and includes a temple, a math,
a wakf(a dharmada) or any other religious or charitable
purpose of for both and registered under the societies
registration act, 1860. Section 2(17) defines a temple to
mean a place by whatever designation known and used as
place of public religious worship and dedicated to or for the
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benefit on or used as of right by the Hindu Community or
any section thereof as a place of public religious worship. It
is in the context of these definitions that their Lordships had
to consider the contention that there was absolutely no
evidence about dedication to the public or public user of the
temple as a matter of right. First the sanad in question was
examined under which the land as to continue as
endowment in the temple of vithal Rukhmai on the condition
that the manager shall continue to be the faithful subject of
the British Government. The Government having recognised
the Sanasthan with the temple as a public religious
endowment by the state apart from the fact that the temple
was to have a manager and not an owner as such, it was
held that in the absence of anything to the contrary of a
convincing nature, a grant by the Government in favour of
the temple describing the property to be in charge of a
manager led to an unerring inference that the property was
a public religious endowment. Thereafter the history of the
origin and devolution was examined as the Gadi went from
Guru to chela. This sanad was examined as the Gadi went
from Guru to Chelas. This sanad was, therefore, treated as
a piece of evidence of the Government having treated the
temple as a public religious endowment. Even though
various documents were produced where the word "Malaki"
or "Owner" was used, their Lordships refused to treat that
word as showing absolute character of personal ownership.
Various gift documents were examined which were really
donations to the Devsthan and for the maintenance and
lordship thereof, which were really for the benefit of the
Hindu Public as whole. The settled legal position was
thereafter examined on pages 876 and 878 by pointing out
that the principles for determination of the question whether
an endowment was public or private were fairly well settled
because the distinction between a private and a public trust
was that whereas in the former the beneficiaries were
specific individuals, in the latter they were the general public
or a class thereof. In the former the beneficiaries were the
persons who were ascertained or capable of being
ascertained, in the latter they constituted a body which was
incapable of ascertainment. The ratio in Deoki Nandan V/s.
Murlidhar, A.I.R. 1957 S.C. 133 was further referred to by
pointing out that:-
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‘When once it is understood that the true beneficiaries
of religious endowments are not the idols but the
worshippers, and that the purpose of the endowment
is the maintenance of that worship for the benefit of
worshippers. The question whether an endowment is
private or public presents no difficulty. The cardinal
point to be decided is whether it was the intention of
the founder that specified individuals are to have the
right of worship at the shrine, or the general public or
any specified portion thereof. In accordance with this
theory, it has been held that when property is
dedicated for the worship of a family idol. It is a
private and not a public endowment, as the persons
who are entitled to worship at the shrine of the deity
can only be the members of the family and but that is
the ascertained group of individuals. where the
beneficiaries are not members of a family or specified
individuals then the endowment can only be regarded
as public, intended to benefit the general body of
worshippers.’
Their Lordships further pointed out that where an
endowment was in favour of the idol itself, and the point to
be considered was whether it was private or public
endowment, in such circumstances the proof of user by the
public without interference would be cogent evidence that
the dedication was in favour of the public. It was also
unusual for the ruler to make grants to a family idol.
Thereafter their Lordships referred to the various decision
where evidence in regard to the foundation of the temple
was not clearly available and where various tests were held
to be relevant. At page 878 their Lordships pointed out as
under:-
‘When the origin of an endowment is obscure and no
direct oral evidence is available, the court will have no
resolve the controversy about the character of the trust
on documentary evidence, if any, the object and
purpose for which the trust was created, the consistent
manner in which the property had been dealt with or
manager by those in charge, the manner in which the
property has long been used by the public, the
contribution of the public to all intents and purpose, as
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a matter of right without the least interference or
restriction from the temple authorities, to foster
maintenance of worship the accretion to the trust
property by way of grants from the state or gifts from
outsiders of the property, are all important elements in
determination of the question whether a property is a
private of a public religious endowment.’
These tests were held to be satisfied in that case by pointing
out that the following features were present in that case:-
(1) The deity installed in the temple was intended by
the founder to be continually worshipped by an
indeterminate multitude of the Hindu public.
(2) In order to facilitate worship by the public, the
founder also intended that Bhajan, Kirtan and
worship, shall be maintained and annual ceremonies
and processions for pilgrimage shall be conducted by
the saints in succession nominated by the reigning
saint.
(3) There has been no evidence of any hindrance or
restriction in the matter of continuous worship by the
public extending over a long period.
(4) More than a century ago the temple in its own name
was recipient of land by Royal grant and the same has
been managed by the saints in succession as manager
and not as personal or private property.
(5) Collection of subscriptions were made from house to
house by taking Maharaj and also for "Gulal"
ceremony.
(6) Gifts of land by members of the public from the
Taluka and outside it in favour of the temple or of the
Sansthan for the purpose of maintenance of the
worship.
(7) Holding out of the Sansthan to all intents and
purpose as a public temple.
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(8) Treating of the Sansthan by those who are
connected with the management as intended for user
by the public without restriction.
(9) Absence of any evidence in the long history of the
Sansthan to warrant that it had any appearance of, or
that it was never treated as may private property.
It was, therefore, held that while each case of endowment
as to its character depends on the particular history,
traditions and facts, the presence of the above features let to
an inescapable conclusion that Shri Vithal Rukmai Sansthan
at Amalner was a public trust within the meaning of section
2 (13) of the Act.”
13. It is admitted position from the document placed on
record (Exhibit-244) that the Suit No.2 of 1897-98, the then late
Mahant Laldas in eviction suit stated that in village Dhaman, the
Lord Narsinhji Maharaj Sansthan exists and attached to it were
various Barkhali Lands and other lands, which were in
possession and the administration of the Mahant of the
Sansthan for the time being. It is further stated that after the
death of Guru Devidasji, he was doing the vahivat
(administration) of the Sansthan as a Mahant. It is specifically
averred that the land in village Dhaman is of Lord Narsinhji and
the Mahant were, for the time being, acting as the administrator.
This admission is material and relevant.
14. Barkhali lands referred to agricultural lands granted
by the princely Rulers or Chieftans to individuals or institutions
like temple for service, maintenance or religious purpose and
they were exempted from paying the reduced land revenue.
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15. The person, who holds the land were known as
‘Barkhalidar’ and this included religious institutions like
Dharmada, Sansthan or Devsthans and the lands were granted
for maintenance of the Dharmada, Sansthan or Devsthans.
These lands were generally granted for performing village
administrative service to the Dharmada or Devsthans and they
are called ‘Chakariyat’.
16. It also required to refer to Exhibit-245, a sale deed
dated 31.07.1947 executed by the then late Mahant Dharamdas,
the person who has filed the appeals. In this sale deed, he has
recited that land belongs to Narsinhji Maharaj Sanstha and
being a Vahivatdar (Administrator), he is selling it. Some other
documents at Exhibits-361 to 363 are also relevant and material
to see that the immovable properties belonged to the temple of
Lord Narsinhji and are not the personal/secular property of the
Mahants.
17. By Exhibits-361 to 363, the late Mahant
Dayaramdas, having admitted that he is the eldest Chela, as per
prevailing custom and tradition and as per the Rule in question,
was appointed as a Mahant of the Lord Narsinhji temple and
since he has not practiced celibacy, but got married and to keep
harmony and peaceful relationship with the other Gurubhais,
i.e. other Chelas of Guru Govinddas, he is executing this
document relinquishing and transferring some of the properties,
which belongs to the Lord Narsinhji temple.
18. This recital in Exhibits-361 to 363 transparently
postulates that the Chelas of the Guru Govinddas have
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partitioned the properties, which belonged to the Lord Narsinhji
temple. The alienation in favour of Gurubhai Radha Mohandas
by the late Mahant Dayaram was conditional and usufruct
transfer, which gives the only right to enjoyment and to obtain
the income in lieu of performing Seva Puja at Mahuva Sansthan
temple. Another beneficiary was Gurubhai Raghuvirdas. It also
reflects that the property has been obtained as a Mahant of the
institution and had been managed by late Dayaram as per the
tradition and custom.
19. Besides Exhibit-244, Exhibit-245 also throws a light
that the properties belonged to the temple institution, to which
the Mahant for the time being was only an Administrator.
20. It is in this context, if we refer to some other
documentary evidence, Exhibit-34 is an application made by the
former Mahant Laldas dated 25.03.1950 to the Sarsuba of the
erstwhile Baroda State in Barkhali Shakha, Devsthanam Branch,
it is mentioned in the application that around 100 Bigha land in
33 villages is mentioned there in Navsari, Kamrej and Mahuva
talukas. All lands were standing in the name of Bawa Laldas
Guru Prabhudas being an administrator of Lord Narsinhji temple
at Dhaman. It is also mentioned therein by the Mahant Laldas
that the lands, which were Devsthanam and Dharmada
Chakariyats, had been given by the princely erstwhile State of
Baroda. However, these lands are not yielding any benefit or are
not valuable. While grant was made by the princely State of
Baroda, it was under the condition to maintain an account by
taking the decision that Devsthanam was a Sarvajanik Sansthan
and that the temple of Lord Narsinhji was established by the
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devotees and Government had no direct function therewith. The
Barkhali lands were given with a typical scenario that it was to
maintain the Sarvajanik Sansthan and thus, the Mahant Laldas
prayed under Section 9 of the Baroda Act to grant the
permission for the conversion of the Barkhali land as a
Government land in his name on the payment of the full revenue
assessment and to cancel the entry of this temple as a
Sarvajanik Sansthan. Mahant Laldas in his aforesaid statement
dated 25.03.1950, in unequivocal terms, stated that if the land
was charged as a ‘Khalsa land’. Khalsa land means land owned
directly by the State or the ruling King, rather than being
granted to feudal lords or private individuals. He would abide by
the condition or restriction not to alienate or misuse that land
and shall adhere to all the relevant Rules for the time being in
force.
21. After the land was converted from Barkhali land and
was standing in the name of Mahant, by Exhibit-92 in 1944-45,
he sought permission to sell the land.
22. In the context of this application, the earlier order
dated 30.07.1914 (Exhibit-30) had been produced along with the
written statement by Mahant (Exhibit-18) to demonstrate that
the Lord Narsinhji temple was held to be a public institution
being aided by the State, whereby Mahant was ordered by the
erstwhile state of Baroda to keep the budget as income of nearly
Rs.307/-, which was generated from these Barkhali lands and
Rs.100/- was granted by way of gift to the deity. The Mahant
was also directed to produce the list of Devsthan. However, since
Mahant had invoked the Notification under Section 9 of the
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Baroda Act issued on 29.04.1915, the supervision of Lord
Narsinhji temple was stopped, accepting the request.
23. Further request of Mahant dated June, 1924 not to
keep the visit book was also accepted. The character of all these
proceedings being germane and unquestionable, echo that the
temple of Lord Narsinhji was a public institution and the lands
attached with it since the beginning, either were given by the
erstwhile State for the maintenance of the temple which is a
dedication by the erstwhile State, or some private devotees,
again fall under the definition of ‘dedication’. It was never an
immoveable property of secular nature.
24. In the suit proceedings, Mahant relied upon certain
application made by the devotees to remove Mahant Dayaram
from the administration of the temple of Lord Narsinhji. The
request was turned down by the concerned authority on the
ground that no mal-administration has been found. However,
the Prant Officer (Exhibit-45), in unequivocal terms, held that in
view of Section 4(1) and 4 (2) of the Baroda law, the temple is a
‘Sarvajanik Sanstha’ and in absence of sufficient evidence to
show that the Mahant was malfunctioning the administration of
the Sarvajanik Sanstha, no reason arrived to remove him. These
orders were confirmed up to the Chief Secretary of his Highness,
but those orders do not reflect that it was a private temple or the
property attached there were private properties.
25. At the earlier point of time, the Division Bench in
First Appeal No.803 of 1971 and First Appeal No.222 of 1972,
after examining the provision of the Baroda Act, held as follows:-
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“The scheme of the aforesaid provisions would clearly
show that such temples which are used by the public for
more than thirty years without any obstruction would be
sarvajanik sanstha and such properties like Barkhali lands
and lands donated or obtained or acquired by such sanstha
and even Dharmada donations even to individuals for such
religious public purpose or for such religious purpose would
be sarvajanik properties. Even grant can be given only to
such sarvajanik sanstha by the Government and even when
the grant is discontinued under sec. 9 on the application of
the vahivatkarta that he did not desire continuance of the
Government supervision, the right of the Government
remained unaffected to look into the management of such
institutions. Under the explanation to section 9 (ka).
Restrains also operated under section 12 as regards
alienations. Besides, the power which is given under section
6 and 7 for taking such Sarvajanik Sanstha under
Government supervision by the order of the Suba after the
necessary enquiry in that connection is not a power which is
exercised for the purpose of adjudication property rights.
Before taking over the supervision the suba may have to
decide individually or collectively the question whether the
institution is a Sarvajanik Sanstha or not. But that
incidental finding given in such enquiry by the Prant Officer
can never be treated as the decision of a competent court so
as to invoke bar of res-judicata when such a dispute arises
in a competent civil Court. There is no similarity with the
scheme of the present Act where exclusive jurisdiction is
vested in the authorities under the Act to decide these
statutory question as to whether it is a public trust and the
properties are of the public trust or not. That is why the
aspect of res-judicata was rightly never canvassed. Even the
authorities had rightly relied upon the finding decision in
F.A. no. 1233 of 1949 decided on June 26, 1951 by the
Division Bench consisting of Bhagvati and Vyas JJ.
Interpreting the relevant scheme of the Baroda law. In that
case the suba had by the order dated November 11, 1935
held the property to be private property of the Bava and the
Sursuba had confirmed that decision in appeal on February
8, 1936. Thereafter within six or seven months a suit was
filed by the plaintiffs for a declaration that the temple and
the properties attached thereto were public religious and
charitable trust and the Bavas were not the owners thereof.
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It was in terms held that the decision of the authorities
under the Baroda law in control of the Devstan under the
Baroda law, were not in any manner conclusive on the
question before the court. When the matter was agitated
before the court of law, these decision which were reached
by the authorities in control of Devasthan may have some
evidentiary value. However when there was cogent evidence
adduced before the courts of law to lead to the conclusion
one way or the other, these decisions were of no
consequence and the courts were at liberty to arrive at any
conclusion justified by the evidence on record. The matter
was said to be clinched by the definition section under
which a sarvajanik sanstha was defined to cover any
temple which was for more than 30 years continued or used
without any hindrance for the purpose of worship. So far as
Barkhali lands were concerned. The definition section itself
made these lands Sarvajanik Properties. Therefore, the
temple and the properties were held to be public trust and
public trust properties.”
26. It is admitted position that all the Mahants, except
the last one, Mahant Dayaram were celibate and the descent was
passing from Guru to Chela. The mode of succession was from
Guru to Chela and it continued to operate till Mahant Dayaram.
It is also observed hereinabove that the three Chelas of Guru
Prabhudas have partitioned the properties as the successor of
Guru Prabhudas and it was effected by Mahant Dayaram, as he
was the eldest Chela and he was appointed as the Mahant.
27. Apt to observe that, in a case on hand, the properties,
which have been standing in the name of the Mahants, on their
death, were descended through the Chelas on the succession
mode of Guru to Chela succession. It never passed to the natural
relatives, heirs and legal representatives of the Guru, as per
personal law.
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28. It is noticeable that Mahant Dayaram, who claims
that the immovable properties are not Debutter, but his personal
property or the property in secular nature and claimed that he or
his Gurus were doing business or were involved in the money
lending, this averment remains to be far less than the proof. No
evidence or even a whisper of it has been produced on the record
to show that any of the Mahant ever has done any business and
had a independent source of income to purchase the land.
29. Learned Senior Counsel Mr. Mehul Shah relied upon
the multiple documents annexed with Exhibit-16 (Page No.131 of
the record) to claim that the multiple devotees have gifted the
immovable properties and agricultural lands to the Mahant in
their personal capacity and these gifts settled the title in favor of
the Mahants, be it Bawaji Prabhudas Santokdasji or Bawaji
Santokdasji, etc.
29.1 He referred to the recital there in the documents and
submitted that according to these documents, it was a personal
dedication or gift to the Mahants by the devotees and it forms
the character of the private property or a secular property.
29.2 Learned Senior Counsel stressed upon the words
“Vansh Khaye”, and he submitted that these gifts were made
with a view that these gifts would remain in everlasting use in
favour of the successor of the Mahant. On perusing all these
documents, which are merely pieces of paper, having not
followed any procedure laid down under the Transfer of Property
Act, 1882 (hereinafter referred to as the ‘TP Act’) are rather the
gift to the almighty deity, Lord Narsinhji.
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30. According to the recital of these documents, the
multiple devotees, having no personal relationship with the
Mahants of the temple, dedicated these properties with a
stipulation that it would remain everlasting with the successor of
the Mahant. It is with the recital that the properties were given
to the ‘Bawaji’ and not in the personal name of any particular
Mahant. Now, these two conditions, coupled with the factual
aspect that these properties were never succeeded to by the
natural heirs or relatives of the Mahants, abundantly makes it
clear that these are dedicated properties given by the villagers to
Lord Narsinhji, akin to the Barkhali lands granted by the
erstwhile State of Baroda to the temple of Lord Narsinhji.
Therefore, on the basis of such documents, the Mahant cannot
claim that these properties are his personal and private
properties. The plain reading and perusal of these documents in
the simplest terms, exposes and reiterates that these are the
dedications made to Lord Narsinhji in the name of the Mahant
as an Administrator.
31. It was an incumbent duty upon the Mahant to
establish that these were actual gifts or transfers through valid
conveyance deeds in his favour, declaring the properties to be
his personal properties. When the Mahant claims the title over
these properties based upon these unregistered documents,
except bare words, no other evidence has been produced on
record to establish such aspects.
32. In Narayan Bhagwantrao Gosavi Balajiwale v.
Gopal Vinayak Gosavi And Ors., reported in 1959 SCC
OnLine SC 54, the Apex Court held that the vastness of the
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temple, the mode of construction, the lone use of the public is as
of right, grant of land and cash by the Rulers taken along with
other relevant factors, were indicative of and consistent only with
the public nature of the temple (para 16).
33. I may also refer to the Constitution Bench judgment
of the Supreme Court in the case of Mahant Shri Srinivas
Ramanuj Das v. Surjanarayan Das, reported in AIR 1967 SC
256, more particularly paras 16, 23, 30, 37, 38, 40, 41 and 42,
which reads as under:-
16. The distinction between a public trust and a private trust
is, broadly speaking, that in a public trust the beneficiaries
of the trust are the people in general or some section of the
people, while in the case of a private trust the beneficiaries
are an ascertained body of persons. The beneficiaries of a
math are the members of the fraternity to which the math
belongs and the persons of the faith to which the spiritual
head of the math belongs, and constitute therefore at least a
section of the public. Maths, in general, consequently, are
public maths. We say nothing as to whether there can be a
private math or not. Mukherjea states in his 'Law of
Endowment', 1st Edition:-
‘By private math should be meant those institutions
where the head or superior holds the property not on
behalf of an indeterminate class of persons or a section of
the public but for a determinate body of individuals, viz.,
the family or descendants of the grantor.’
xxx xxx xxx
23. Another document of importance in this connection is the
Will, Exhibit 140, executed by Mahant Mohan Dass in 1857
in favour of his disciple who was the subsequent Mahant by
the name Mahant Raghunandan Das. This Will, besides
speaking of the careful training given to Raghunandan Das
making him fit to succeed to the gaddi, states :-
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‘After me the said Raghunandan as my successor in the
Mahantai Gaddi shall become the Mahant, Malik and
Gadanashin and shall continue to exercise ownership
and possession in respect of all the properties as he is
doing now and shall enjoy as the rightful owner and
Malik of all the movable properties of and connected with
this Math both within this part of the country and outside
(Desh Bideshare) and shall continue to manage the
rendering and supplying of the fixed Sheba Puja offerings
and Bhog etc. of Shri Jagannath Mohaprabhu in
accordance with the traditional customs and shall give
food and shelter, as he is doing now, to Bhaishnab
guests and other persons arriving in the Math
(Abhyagata) etc., and committing no laches in this and
remaining in observance of his own religion, shall
manage all affairs’.
The last expression with respect to giving of food and shelter
to Vaishnay guests and other persons arriving in the Math
etc. indicates that visitors. belonging to the Ramanuj
Sampraday, used to visit the Math when on a pilgrimage to
the Lord Jagannath Temple and the Mathadhish of Emar
Math used to give shelter and food to them and the will
enjoined the nominee to continue that practice. Such a
practice shows that the beneficiaries of the Math properties
were again indeterminate in number. The gift being to the
Math. though ostensibly in the name of the Mahant, the
Mahant held the properties as a trustee for the
indeterminate class of beneficiaries, viz., sishyas,
anusishyas and visitors. This stamps the Math with the
public character. It is significant to note that there is not a
word in this document to the effect that Mahant Mohan Das
possessed any private property and that such private
property was to go to Raghunandan Das who was to
succeed him on the gaddi or to somebody else, The only
conclusion from such an omission can be that Mahant
Mohan Das did not consider any, property, to be his own
personal property. Whatever he possessed and over which
he exercised ownership was considered to be the property of
the Math or properties connected with the Math and that his
successor was to exercise ownership and possession over
all such properties.
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xxx xxx xxx
30. Reference may be made to Sitaram Days Banasi v.
H.R.E. Board Madras(1) and to Raghbir Lala v. Mohammad
Said(1). In the former case, Varadachariar, J. said:-
‘From the few sale deeds filed in the case, it no doubt
appears that some of those properties were purchased in the
name of the prior Mahant; but it being admitted that he was
an ascetic and celibate and the head of the institution, the
probabilities are that they were purchased with the funds of
the institution.’ and in the latter it was said:-
‘No doubt if a question arises whether particular property
acquired by a given individual was acquired on his own
behalf or on behalf of some other person or institution with
whom or with which he was connected the circumstance
that the individual so acquiring property was a professed
ascetic may have importance.’
xxx xxx xxx
37. Some properties have been shown to be purchased by
the chelas of the Mahants previous to their occupying the
gaddi of the Mahant, that is to say, such properties were
purchased when they were mere chelas and not mahants. It
is therefore submitted for the appellants that these
properties could not be held to be math properties now. It is
true that the presumption that the properties that were
obtained during the period when they were not Mahants
cannot be presumed to be properties purchased or acquired
for the Math. But the fact remains that when they
themselves became Mahants such self-acquired properties
did not appear to have been treated in any separate
manner. Proceeds from such properties were mixed up with
the proceeds of the other property. Letters, Exhibits C & D,
by Mahant Gadadhar Das to the Commissioner speak of the
entire mingling of the accounts of the private and Math
properties. Some witnesses of the plaintiff stated that
Gadadhar Das told them later that he had made wrong
statement in those letters for ulterior purposes. Courts below
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did not rightly believe such statements. Further, it may be
noted that it appears from the sale deed, Exhibit 77,
executed in favour of Gadadhar Ramanuj Das, Chela of
Mahant Raghunandan Ramanuj Das in 1909, that the
founder owed a sum of Rs. 400/- to the Mahant Guru of
Gadadhar and that this sum was adjusted towards the
purchase price of the property conveyed under this deed.
Mahant Mohan Das, by his will Exhibit 140, permitted his
Chela Raghunandan, who was nominated to succeed him to
get his own name gradually mutated in respect of the lands
and zamindaris standing in the name of the Mahant. It
follows therefore that the mere fact that certain properties
were ostensibly purchased by the chelas does not
necessarily mean that those properties were either acquired
as their personal properties' or that they continued to be
their personal properties after they succeeded to the gaddi.
38. The plaintiff has failed to produce the expenditure
accounts with respect to the income from the properties in
suit. He has not produced the consolidated budget which is
prepared. That could have indicated whether the income
and expenditure over the property in suit was treated as of
the Math or not. Accounts showing the sources of money
from which the properties were acquired have not been
produced. These omissions, together with statements in
letters Exhibits C & D, are sufficient to support the findings
of the Courts below that even these properties had been
treated as Math properties.
xxx xxx xxx
40. We may now consider the properties in schedule Kha
said to be the Amrut Manohi properties of Lord Jagannath
and held by the plaintiff as marfatdar. The plaintiff alleges
that these properties were acquired either by purchase or
'krayadan' or by way of gift subject to a charge of some
offering to Lord Jagannath which depended upon the
individual judgment and discretion of the plaintiff, and that
the public had no concern with the enjoyment or
management of the usufruct thereof. The Gazetteer makes a
reference to such properties and states:--
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"Both Saiva and Vaishnava Maths exist in Puri. The lands of
the latter are known as Amruta Manohi (literally nectar
food), because they were given with the intention that the
proceeds thereof should be spent in offering bhoga before
Jagannath and that the Mahaprasad thus obtained should
be distributed among pilgrims, beggars and ascetics-, they
are distinct from the Amruta Manohi lands of the Temple
itself which are under the superintendence of the Raja".
This statement makes it clear that lands endowed to the
temple of Lord Jagannath are distinct from the lands or
property endowed to the Vaishnava Maths for the purpose of
utilising the proceeds of those properties for offering bhoga
before Lord Jagannath and the subsequent distribution of
that Mahaprasad among pilgrims, beggars and ascetics,
presumably visiting the Math, or approaching its authorities
for a portion of the Mahaprasad. The mere fact that the
proceeds of the properties were to be so used, would not
justify the conclusion that these properties were not
endowed to the Maths but were endowed to the temple of
Lord Jagannath. Properties endowed to the temple of Lord
Jagannath were, according to this statement, in the
Gazetteer, not under the superintendence of any Math or
Mahant but under the superintendence of the Raja of Puri
himself.
41. As already stated, these Amrit Manohi properties are
properties which are endowed to the Math by the devotees
for a particular service, which is done to Lord Jagannath by
the Mahant on behalf of the Math. The properties are
therefore properties endowed to the Math and not merely
gifted to the plaintiff or, as had been suggested to Lord
Jagannath.
42. The properties in Schedule Ga are said to be endowed to
private deities whose sole marfatdar was the Mahant. The
properties in this schedule are 200 in number and entries
about them refer them to be of many a deity. These
properties too appear to be endowed to the Math in the,
same way as Amrut Manohi properties had been endowed
that is to say, the devotees of the Mahant provided for the
offering of Bhog or any other seva to the various deities by
the Mahant as representing the Math. There is nothing
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unusual about it as a Hindu's devotion is not necessarily
limited to one particular deity, to whichever persuasion of
the Hindu religion he may belong. The Mahant of a Math,
and of such a well-renowned Math as the Emar Math, is not
expected otherwise to be the marfatdar of so many deities
as a result of properties endowed by a number of persons.
The very fact that the Mahant of Emar Math took upon
himself the marfatdari of so many deities indicate that his
devotees could think of endowing properties to the Math for
the purpose of doing seva of other deities as well.
34. I may also refer to the judgment of the High Court of
Himachal Pradesh in Mahant Rajinder Giri v. The
Commissioner, reported in 2007 (1) Shim. LC 134, paras 15
and 16 thereof reads as under:-
“15. Learned Counsel for the respondents placed reliance
upon three judgments to support the findings of the trial
Court and the first appellate Court that the property is to be
presumed to belong to the shrine. The same are Raghunath
Das v. Gajpat Rai and Ors. 1934 Punjab Law Reporter 443,
Susil Chandra Sen and Anr. v. Gobind Chandra Das and
Anr. AIR 1934 Patna 431 and (Manda) Appa Rao Pantulu
Garu and Anr. v. Budankayala Vignesam Subudhi and Ors.
AIR 1937 Madras 118. In Raghunath Das's case (supra),
what has been held is that the property owned by an
institution, like a Thakurdwara, is generally entered in the
name of the Mahant or the trustees. The judgment does not
say authoritatively that in every case the property entered in
the name of a Mahant is to be presumed to belong to the
institution. In any case, in the light of the evidence,
particularly the entries in the record of rights, to which
presumption of truth attaches, there was no need for
resorting to the presumption. As already noticed the shrine
and the Mahant are entered as two separate entities,
owning and possessing separate properties, included in
separate khataunies, even when forming parts of same
khata.
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16. In Susil Chandra's case (supra), it has been held that
when the holder of a property is a person free from worldly
attachments, is a celibate and has no family of his own,
presumption is that what he holds or acquires is held or
acquired on behalf of math, to which his life is entirely
devoted. As already noticed, the suit property, as per entries
in the record of rights is held by Mahant in his name, while
the property belonging to the shrine, of which he is a
Mahant, is entered in the ownership of the shrine and hence
the question of drawl of any presumption does not arise.”
35. Reference can also be made to the judgment in case
of Jankidass & Anr. v. Mahant Dhangir & Ors., reported in
1990(2) Rajasthan LR 672, whereby the Rajasthan High Court
held that the property belonging to a Math must have been held
by the person, who was managing the Math as trustee, and
could have alienated the property only for the benefit of the
trust. It was further held that if a Sadhu acquires property and
does not devote it to religious purposes, he remains absolute
arbiter of the disposal of the property, but if the property has
once passed to the Chela by virtue of his being a Chela, it is only
reasonable to hold that the Chela must treat the property as
religious.
36. In another judgment from the Rajasthan High Court,
in Tara and Ors. v. State of Rajasthan & Anr., reported in
AIR 2015 Rajasthan 179, it was held that lands acquired by a
Mahant vest in the Math property and thereafter, the
Chela/disciple had no authority to alienate the properties of
Math and any transfer thereof would be null and void.
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37. In a recent judgment of the Supreme Court in case of
Kishan Chand (Dead) through LRs v. Gautam Gaur Hitkarak
Sabha, Kota and Ors., reported in 2026 INSC 448, the
Supreme Court held that the distinction between management of
a religious institution and ownership of its properties is well
recognized in law and the two cannot be conflated. The Supreme
Court further held that the case rests largely upon inference
drawn from the management practice and appointment of a
Pujari, which in law are insufficient to establish proprietary
rights over the immovable property. (Paras 16 and 18).
38. A worthy reference may be taken to the judgment of
AP State Wakf Board (Supra). Para 25 thereof reads as under:-
“25. On a careful consideration of the material on record, it
becomes evident that the suit property, being service inam,
could not have been validly partitioned or subsequently
alienated so as to confer title upon the predecessors of the
Respondents. In this regard, it would be apposite to refer to
the judgment of this Court in Sayyed Ali (supra) wherein it
was categorically held that a grant of land for rendering
religious or charitable services does not vest absolute title in
the individual, and such grants, being for purposes
recognised under Muslim law as pious, religious or
charitable, would clothe the property with the character of
Wakf. The said principle squarely applies in the present
case, where the recital in the partition deed itself establishes
the land as service inam attached to a mosque. The High
Court, however, proceeded to treat the partition deed as
conferring independent title, without adverting to its recitals
in their proper perspective, which, in our opinion, constitutes
a manifest error.”
39. Now, it comes to the four wills relied upon by learned
Senior Counsel Mr. Shah. Out of the four wills, the latter two
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wills were executed during the pendency of the dispute.
Exhibits-41 and 42, these two wills were executed at an earlier
point of time when no dispute was in existence.
40. Exhibit-42 is the will of late Mahant Prabhudas
executed in Samvat Year 1925, Shervad Vad 5, which mentions
that he had two disciples. However, as one of them, namely
Laldas, was a minor, the other chela Devidas was permitted to
take possession and carry out the Vahivat, and then to entrust
the property to Laldas upon his attaining majority. It was further
stated that the temple should be managed in the ownership
rights by him and that he should perform seva/pooja of the
Lord.
40.1 He has stated that he has got the properties from his
Guru and had also acquired the properties himself. However,
there is no evidence on record that which properties were
acquired by him or by which mode. (The testator - Mahant
Prabhudas did not mention what business, trade, or occupation
he carried on at the time, which generated sufficient income to
acquire personal properties.)
40.2 In the will, he has stated that he was receiving a
‘Varsasan’, i.e. annual contribution, from many villages, which
must be utilized for the purpose. It also mentions that the
villagers had faith in the institution and had donated lands, and
that the Government had also given the lands, which were
exempted from payment of revenue (Barkhali lands).
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40.3 The next will, at Exhibit 41, of Devidasji in Samvat
Year 1935, Magsar Sud 12, which mentions that the properties
were acquired by his predecessors in the Guru-Chela lineage. It
also refers to Varsasan i.e. annual income received from the
villagers, which was required to be utilized for Sadavrat. It was
further stated that village people had no concern in these
properties and no account was required to be given. It was also
mentioned that the Baroda Government has allowed certain
lands as exempt lands, but that was acquired by him and none
had any right over it. Thereafter, two wills, Exhibits-39 and 40
come, which are executed during the dispute. These wills were
heavily relied upon by learned Senior Counsel Mr. Shah.
40.4 First of all, these wills do not confer any proprietary
rights upon the propounder, who claims it. Secondly, when such
wills are presented before a Court of law to establish proprietary
rights, they must be proved in accordance with the provisions of
the Indian Succession Act, 1925, and thirdly, the probate Court
or the Court, under the testamentary jurisdiction, except only
deciding the genuineness of the will, cannot decide anything in
regards to the title of the bequeathed property.
40.5 Thereby, the wills at Exhibits-39 to 42 are material
only to see that the Mahant had appointed a disciple as his
Chela to be a successor Mahant and to be appointed following
the rituals and customs. Besides this limited aspect, the wills
have no evidentiary relevancy in deciding the title of the
properties.
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40.6 In the judgment of the Supreme Court in the case of
Delhi Development Authority v. Mrs. Vijaya C. Gurshaney
and Anr., reported in (2003) 7 SCC 301, the Supreme Court
stated that the issuance of probate or letter of administration
does not confer title over the property, but it merely enables
administration of the estate of the deceased. It shall remain open
for any person to dispute the title even after the probate or
letters of administration have been granted. (Paras 8 and 10).
41. In the inquiry proceedings, late Mahant Dayaram in
his own writing vide Exhibit-51, placed the list of the properties.
41.1 In the Serial No.1, he has placed the list of the
properties, which were Devsthan Inami land (dedicated by the
erstwhile State of Baroda at relevant time) and later on,
converted into Khalsa land and then, the properties, which were
sold by the Mahant as Administrator of the Lord Narsinhji
Temple.
41.2 At Serial No.2, the list of the properties, which are
purchased by the Mahant after selling the Government
land/Barkhali land/Khalsa land.
41.3 At Serial No.3, he has listed the various immovable
properties, which were Dharmada Chapri land and later on
become Khalsa land and sold by the Mahant as Administrator of
the Lord Narsinhji Temple, and lastly, it was a list of the private
properties.
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41.4 It is an important piece of evidence which specifies
the slew of the lands running in name of Mahant, but granted by
the State Government to maintain the Lord Narsinhji Temple
and the lands, which were sold and purchased out of selling the
granted land. In the list which was stated to be a private land or
personal land, late Mahant Dayaram stated the lands of Survey
Nos.75, 76 and 69/1 of Moje Asodar, land of Survey Nos.30/1,
30/2, 31, 207, 207/1, 151, 283 and 288 of Chokhat Taluka,
land of Survey No.117 of Kolasna village, and land of Survey
No.225 and 224/2 of Dhaman village as his private properties,
but what could be noticeable that he has failed to produce
documentary evidence to establish that these properties were
personal properties purchased by him from his own source of
income or were personally dedicated to him by the villagers and
not for the purpose of maintaining the Mandir (temple) and that
too, by executing an instrument or conveyance deed recognized
by the ‘TP Act’.
42. Now in light of this aforesaid finding, let examine the
order passed by the learned District Court and how the issues
were dealt by the learned District Court after the matter was
remanded back.
42.1 In Misc. Civil Application No.1 of 1964, only one issue
was framed, which reads as under:-
“(1) As to which properties are the properties of the Public
Trust?”
(Finding of the issue was as per the final outcome of the
impugned judgment).
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42.2 In Regular Civil Suit No.3 of 1964, issues were
framed at Exhibit-323. In all 21 issues were framed, which reads
as under:-
“(1) Whether the suit as framed is not maintainable?
(2) Whether the suit is properly valued for purposes of court-
fees, pleaders' fees and jurisdiction? If no, what order
should be passed in that respect?
(3) Whether the suit is barred by law of limitation?
(4) Whether Defendants Nos. 3 to 27 are not necessary
parties to the suit?
(5) Whether the suit is bad for misjoinder of causes of action
and parties? or whether the suit is defective for want of
necessary parties?
(6) Whether the plaintiffs prove that there is a public temple
at Dhaman consecrated to the idol of Narsinhji?
(7) Whether the plaintiffs prove that the suit temple was
managed by the Sadhus of the Nimanandi or Harbiasi
Sampradaya as Mahant thereof?
(8) Whether it is open to the defendants to challenge the right
of the persons to file the suit in view of the permission
obtained from the Charity Commissioner?
(9) If yes, whether the plaintiffs prove that they are the
Sevaks or worshippers of the alleged temple and whether
they prove that they are entitled to sue?
(10) Whether the consent of the Charity Commissioner to the
filing of the suits when the appeal filed by Defendant No.2
against the decision of the Deputy Charity Commissioner
was pending before him valid in law?
(11) Whether the immoveable properties shown in the
schedules to the plaint are properties dedicated to the
alleged temple or idol?
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(12) Whether the plaintiffs prove that any such offerings are
made to the deity in the suit temple?
(13) Whether the plaintiffs prove that the alleged temple
owns agricultural lands and other moveable and
immoveable properties? If yes, what are proved to be such
properties?
(14) What is proved to be the market value of the properties
mentioned in the Schedules A, B and C to the plaint?
(15) Whether this court has jurisdiction to go into the validity
of alienations in this suit?
(16) Whether the alienations are void as alleged?
(17) Whether the plaintiffs prove that defendant No.2 is
doing money-lending business out of any funds of Public
Trust as alleged?
(18) Whether the gifts of properties set out in Schedule C to
the plaint in favour of Defendant No.3 illegal and
unauthorised?
(19) If so, whether the said gift can be set aside in the
present suit?
(20) What scheme, if any, be framed?
(21) What order?”
42.3 And the finding of the issues based upon the reasons
and analysis of the evidence are as under:-
“(1) No more to be decided.
(2) First part in the affirmative
Second part does not survive.
(3) In the negative.
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(4) No more to be decided.
(5) No more to be decided.
(6) Does not survive in view of the decision of the High Court.
(7) Same in the case of issue No.6.
(8) In the affirmative
(9) In the affirmative
(10) In the negative
(11) The finding to this issue is governed by the finding on
the issue in Misc. Application as recorded above.
(12) Does not survive in view of the decision of the High
Court.
(13) Same as in the case of issue No.11.
(14) As stated in the plaint.
(15) In the negative.
(16) Does not survive.
(17) Does not survive in view of the decision of the High
Court.
(18) In the affirmative.
(19) In the affirmative
(20) The draft scheme given by the plaintiff with the
modifications directed
(21) As per final order.”
43. In Misc. Civil Application No.1 of 1964, the Schedule
of the property claimed to be a public trust property or the trust
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property of Lord Narsinhji Temple is attached. In the suit
proceedings, the plaintiff attached Three different Schedules of
the properties claimed to be public trust property. Vis-à-vis
perusal of both the Schedules, barring minor inconsistencies, it
was found that the properties shown in both the Schedules are
similar.
43.1 The Schedule-A, which is attached with the suit
proceedings, consists of three parts. The first part includes the
agricultural land. The second part includes building and land
appurtenant to the buildings and the third part consists of
movable properties.
43.2 It was argued by learned Senior Counsel Mr. Mehul
Shah that the learned District Court granted the relief, which is
not claimed in the suit. Elaboration of the argument was that in
a suit proceedings, the devotee have asked the relief in regards
to property of Schedule-B and Schedule-C and not of Schedule-
A, and yet, the District Court, while decreeing a suit, also
granted a relief in terms of property shown in the Schedule-A
and that was a complete miscarriage of justice.
43.3 This Court is unable to agree with or impress with
such submission. Perusal of the relief claimed in the Regular
Civil Suit, it indicates that the properties shown in Schedule-A is
described to be in the actual possession and management of the
Mahant and further, the first relief in the suit claimed by the
devotees is to remove the Mahant Dayaram as a Mahant, Trustee
and Manager of the temple, public trust and its properties. The
relief to remove the late Dayaram as a Mahant, Trustee and
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Manager of the trust or lord Narsinhji's Temple, ipso-facto vests
the properties described in Schedule-A to the newly appointed
trustees or to the management of the public trust, and therefore,
it is highly incorrect to say that the learned District Court
committed error in granting relief not prayed for by the plaintiff.
43.4 Schedule-B relates to the agricultural land, which
Mahant of the Lord Narsinhji Temple has alienated and were in
possession of defendant Nos.4 to 27 of the suit at the time when
the suit was filed and the Schedule-C deals with the properties,
which have been gifted to Raghuvirdas Guru Govinddas by the
Mahant.
43.5 The Schedule, which is attached with the Misc. Civil
Application No.1 of 1964 was also consisting of alike narration. If
we peruse the entire litigation, the solitary line of defense raised
by the Mahant was that the temple of the Lord Narsinhji is a
private deity and not a public trust or it has no public character
or public Sansthan, and therefore, no question arises that the
movable or immovable properties attached with the temple to be
a property of religious nature.
44. The fallacy of the statement was fixed once the
Division Bench of this Court in First Appeal Nos.803 of 1971 and
222 of 1972 held that the Lord Narsinhji's Temple is a public
Sansthan (public trust) and that finding remains unassailed till
date. The reason has been backed by the plethora of evidence on
record that, at different points of time, the erstwhile State of
Baroda dedicated the Barkhali lands for maintaining the land
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and even cash grant was also granted. The main line of defense
once became obscure, the later line of the defense that the
properties are property of secular nature, turned ipso-facto false.
These are the properties, which were gifted by the villagers to
Mahant in capacity of being a Mahant and not in a personal
capacity, and which reflects from the recital of these different
writings referred hereinabove. Thus, the Mahants were managing
the properties of Lord Narsinhji. The Mahant’s status cannot be
more than a Poojari and cannot become the owner of the deity's
property.
45. The learned District Court, after the remand of the
matter, dealt with the title of the property elaborately and each
list of the properties has been thoroughly examined. Para 13 to
26 of the impugned judgment and order are relevant, which
reads as under:-
“13. Coming to Schedule A, part I, it may be mentioned that
there are 7 survey numbers of Dhaman mentioned therein.
These survey numbers are 233, 234, 235, 118, 504, 224/2
and 225. Now so far as survey No. 225 is concerned, it has
not been held by the Deputy Charity Commissioner to be the
property of the public trust. No appeal was preferred by the
opponents against that part of the decision of the Deputy
Charity Commissioner. The learned Charity Commissioner
had probably thought of taking up that matter under his
revisional jurisdiction under section 70A of the Bombay
Public Trusts Act. However, it appears that no review was
ever undertaken and that part of the decision of the Deputy
Charity Commissioner has become final. Shri G.V. Patel, for
the plaintiffs has fairly conceded that this, survey No. 225 of
Dhaman cannot be included amongst the properties of the
public trust. Out of the remaining survey numbers of
Dhaman except the survey No. 224/2, all other survey
numbers were Devasthani Inami lands. They were the lands
left in the hand of the Mahant. There can be no difficulty in
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holding that these survey numbers 233, 234, 235, 118 and
504 were the trust properties. Then, the survey No. 224/2 is
shown to have been purchased from the sale proceeds of
land sold. The former numbers are shown in part I of the list
attached with the Mahant's statement Exh.51. The survey
No. 224/2 is shown in part II. It is purchased out of the sale
proceeds of the Devasthan Inami land and so naturally it
forms the part of the trust property.
14. Then, in Schedule-A, part I are included 3 survey
numbers of village Chokhad, Taluka Navsari. They are
survey numbers 30/1, 30/2 and 31. The Mahant claimed
these lands to be his private properties on the ground that
they were in his private Khata. They are shown in part IV of
the list attached with Exh.51. It is an admitted position that
the defendant No.2 had succeeded as the Mahant on being
appointed by him as such under the will of his Guru. There
were certain ceremonies also to be performed. It is also in
evidence that the Mahants were as a rule to be celibate. The
Mahant was in charge of the temple and its properties as a
trustee. He was deemed to have renounced the world and
worldly affairs. The properties of the temple came to his
hand on the death of his Guru and on being appointed as
the Mahant in his place. Whatever he acquired was acquired
out of the property which he got on his succession to the
Mahantship. It appears that after his having become the
Mahant, he had started making manipulation about the
properties of the temple. The evidence on record has
disclosed that all the properties which he got on his
becoming the Mahant were either the properties which were
granted by the erst-while Baroda State to the temple as
Devasthan Inami land or obtained from devotees by way of
gift. The Mahant had not brought his own property and had
no property of his own at the time he became the Mahant. It
seems that he got some of the lands transferred in his
private khata. Some lands were transferred from Devasthan
Inami to Sarkhari Khalsa. However, by such manipulation,
the character of the property cannot change. Even the
properties which the Mahant acquired out of the other
income such as money lending income would be also the
trust properties. The Mahant had no money of his own. All
that he had, had come to his hand on his becoming the
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Mahant. So, all the properties which came in his hand were
the properties of the temple. So, all the properties
subsequently acquired as accretion to the trust properties
out of whatever the income that came to his hand from the
properties in his hand are the trust properties. The Mahant
Dayaram has testified before this Court. He has not been
able to show that he had any source of income independent
of what he got as the Mahant. So, all the properties whether
they were entered as Devasthan Inami lands or Sarkari
Khalsa lands or entered in the private khata of the Mahant
are deemed to be the properties of the trust. That is the view
taken by Their Lordships in the two above referred First
Appeals arising out of the decision of this Court in these
proceedings. It is therefore not necessary to enter all again
into the discussion of the evidence on the point. Suffice it to
say that the evidence on record examined in light of the
observations of Their Lordships in the aforesaid decision
puts beyond doubt that all the properties which stood in the
name of the Mahant irrespective of the fact as to what name
was given to their Khatas are all the properties of the public
trust of the Narsinhji Temple. So, survey Nos. 30/1, 30/2
and 31 of village Chokhad are held to be the properties of
the public trust.
15. Then, there are 3 survey numbers of village Asunder
shown in Schedule A, part I. These survey numbers are
69/1, 75 and 76. Out of these 3 survey numbers, survey
No.69/1 is not held to be the part of the public trust property
by the Deputy Charity Commissioner. This part of the
decision of the Deputy Charity Commissioner has become
final as in the case of survey No.225 of village Dhaman, as
discussed earlier. So, this survey No.69/1 is to be deleted.
Shri G.V.Patel, for the plaintiffs, has fairly conceded to this
position. Then, the remaining two survey numbers 75 and
76 of village Asunder are shown to be in the private Khata of
the Mahant and included in part IV of the list attached with
Exh.51. As in the case of three survey numbers of village
Chokhad, they are held to be the trust properties.
16. Then, there is survey No.77 of village Tarsadi which is
shown to be Sarkari Khalsa. Then, Survey No.117 of village
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Kolsana is shown to be as of private khata of the Mahant.
Then, survey No.175 of Astagam is also shown to be Sarkari
Khalsa. For the reasons already stated earlier, these three
survey numbers of different villages have to be held to be
the properties of the public trust.
17. Then, there are 5 survey numbers of village Padgha.
They are shown in part II of the list attached with Exh.51.
They are shown to be the lands purchased out of the sale
proceeds of the lands of the temple sold. So, they are
necessarily the properties of the public trust. Then, the
survey no. 73 of village Algadh is shown in part I of the list
with Exh.51. It is Devasthani Inami land left in the hand of
the Mahant as such. So is the case of survey No.437 of
village Vaheval and survey No. 255 of village Butwada.
They are therefore necessarily the public trust properties.
Then, survey No. 430 of village Vaheval is shown to be
Sarkari Khalsa which was originally Devasthani Inami land
or Barkhali given to the temple by the erstwhile Baroda
State. So, it is also a public trust property.
18. Then, two survey numbers of village Mudat are shown in
Schedule A, part I. They are survey Nos. 635 and 608. They
are not shown in the list attached with Exh.51. It is the case
of the Mahant that these two survey numbers are the
properties of another trust viz. Ramji Mandir of Mahuva
which is separately registered. The other side does not
dispute this position. In any case, the other side has
produced no evidence to show that these survey numbers
were standing in the name of the Mahant or in the name of
the temple. Shri G.V. Patel for the plain-tiffs has fairly
conceded that these two survey numbers of village Mudat
are to be deleted. So, is the case with survey No.82 of village
Bamaniya. That survey number is a part of the property of
Madan Mohan Mandir of Mahuva. It is also to be therefore
dropped. So these three survey numbers would not form the
part of the trust properties.
19. Then, 22 survey numbers of village Andhatri are shown
in Schedule-A, part I. They are survey numbers 12, 24, 41,
66, 76, 87, 102, 104, 105, 109, 110, 117, 118, 118/2,
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120/1, 125, 141, 144, 152, 156, 157 and 158. The last two
numbers are not shown in the list Exh.51. They are not the
lands purchased by the Mahant. They are the lands
purchased by defendant No.3 Raghuvirdas from Soma
Naran. So, these two survey numbers do not form the part of
the trust properties. The remaining 20 survey numbers of
village Andhatri are purchased from the sale proceeds of the
lands of the trust. They are shown in part II of the list
Exh.51. They are therefore necessarily the trust properties.
20. Then, survey No. 161 of Shanker Talavdi is one of the
survey numbers shown in part II of the list Exh.51. It is a
part of the land purchased from the sale proceeds of the
lands of the trust. So, it is necessarily the part of the trust
properties. Then, one survey number of village Karajka is
the last one to be considered out of schedule A, part I. It is a
small survey number a measuring 12 vasas. The Mahant
has not claimed as to how it was not the trust property. I
therefore take it to be the trust property as it stands in his
name.
21. Thus, as discussed above, except a few survey numbers
indicated above, all the lands shown in Schedule A part I
attached to the plaint are the properties of the public trust of
the Narsinhji temple.
22. Then, in regard to the Property shown in the Schedule A,
part II, it may be mentioned that item No.1 consists of
buildings situate in the compound of the temple with
compound of which the house No. is 55. It is situated in
village Dhaman. It is a big property with the area of land a
measuring 10 bighas. These properties are part and parcel
of the temple of Shri Narsinhji which is held to be the public
trust. So, there should be no difficulty in holding this
property to be the trust property. No doubt, the Mahant has
said that he and his family have been using some part of the
building. That makes no difference. As a Mahant, he was
entitled to use the building for his residence as long as he
continued as Mahant. Then, item No.2 consists of buildings
situate in the bound of Ram Rasayan Pharmacy with
compounds bearing house Nos. 67 and 68. This property is
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also in village Dhaman. Then, third item consists of
buildings of two chals with compound bearing house No. 70
situate in village Dhaman. Then, item No. 4 consists of the
houses of Dhalvada with compounds bearing houses Nos. 7
to 10 situate in village Dhaman. Then, the next item is 1/6th
share in the property comprised in building of Ram Raj Flour
Mill with the machinery of the flour mill situate in village
Dhaman. Then, the item following it consists of buildings
situate at Bavavali street being part of survey No. 51 in
village Dhaman. Then, the last item consists of building
situate in village Chokhad with compound bearing house No.
16. The case put up by the Mahant was that all these
properties were his private properties. He has not indicated
the source of independent income other than as the Mahant
of the temple for acquiring these properties. Even in his
evidence before the court at Exh. 130/32 on the record of
Miscl. application No. 1 of 1964, he does not enlighten us or
elaborate as to how he could have money of his own to
acquire these properties. Regarding share in the Ram Raj
Rice and Flour mill, he said that he had entered into
partnership. However, he does not say that he had invested
capital by borrowing from somebody or from source
independent of his being the Mahant of the temple. As
already discussed earlier, the Mahant is simply trustee of
the temple and its property, though he is entitled to manage
the same by the customs and usage of the institution. All the
Mahants in succession upto the last Mahant viz. the
defendant No. 2 since deceased, were the trustees and all
the properties they held were as trustees. All the properties
purchased out of the income which they received as
Mahants form the part of the trust properties. One, becoming
the Mahant amounts to renounciation of the worldly affairs
for his personal gains. He works for the welfare of the
institution of which he is the head and for spritual benefit of
the devotees. So, all the properties which the previous
Mahants acquired and all that the defendant No. 2 acquired
during his life time as the Mahant while he was Mahant of
the temple were all the properties of the trust. Thus, all the
properties mentioned in schedule B were trust properties.
23. Then, as to the moveable properties shown in schedule
A, part III, it may be mentioned that the plaintiffs have
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shown in this part moveable properties worth Rs.
1,00,000/-. However, the Mahant has stated in his
application Exh.1 of Miscl. Application No.1 of 1964 that the
moveables which he had in his possession were worth Rs.
15026-05p. He has stated that on 26-6-1954, the Charity
Inspector in presence of village people had prepared an
inventory and listed the movable properties which were in
his possession. There is no dispute about this fact. So, that
inventory will be the basis as to what the moveable
properties are. As to the fact that they are trust properties,
there can be hardly any dispute. They are the temple
properties and the temple being the public trust, those
properties are necessarily public trust properties.
24. Then comes the Schedule B. As already mentioned
earlier, they are the agricultural lands which have been sold
by the deceased Mahant, the original defendant No.2, to
various parties. Except survey Nos. 1/1, 4/1, 6 and 6/1 of
village Nihali, all the properties were admittedly the
properties which the defendant No.2 Mahant sold to, various
parties. They were out right sales. Regarding those
properties, the only defence taken by the applicants was
that they were his private properties because either they
stood in his private khata or they were shown as Sarkari
Khalsa. However, as already discussed above, the
defendant No. 2 Mahant and his predecessors had made so
many manipulations about the proper-ties of the temple.
Devasthani Inami and Barkhali lands which were received
as grants from the erst-while Baroda State were converted
into Sarkari Khalsa. The lands which they got in donation
from devotees were sought to be shown in private khata or
lands acquired by money lending business were also sought
to be shown in the private khata. However, such
manipulation as the defendant No. 2 Mahant did or his
predecessors did cannot/change the character of the
property which was originally the trust properties. Some of
the lands were acquired from the trust properties and then
again sold. In any case, as soon as they were acquired,
those lands became the properties of the trust irrespective of
the fact as to the change of the nature of the tenure or as to
whether standing in the name of the private khata of
Mahant or acquired by the Mahant from the income of the
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money lending or any other business. For all the acquisition,
the source was one and that was the income which they got
in their hands as Mahants or trustees of the temple. So the
original characters of all these properties would remain to be
the public trust properties. The question as to whether this
Court can go into the question regarding the validity or
otherwise of such alienations will be considered later on
while deciding other issues arising in the suit. For the
present, suffice it to say that those properties were the
properties of the public trust. Now so far as survey numbers
1/1, 4/1, 6 and 6/1 of village Nihali are concerned, they
were not the properties which were acquired as owner. The
defendant No. 2 Mahant has stated in his application that
they were properties which were mortgaged and have been
reconveyed to the mortgagors on their having redeemed the
properties. The plaintiffs have not been able to show in
anything otherwise. Shri G.V. Patel, for the plaintiffs has
fairly - conceded that those properties cannot be included in
trust properties. Thus, all the properties of Schedule B
excepting survey numbers 1/1, 4/1, 6 and 6/1 of village
Nihali are held to be public trust properties.
25. Then, comes the Schedule C. In this schedule are include
5 survey numbers of village Chokhad. They are survey
numbers 151, 207, 207/1, 283 and 288. These are the
properties which are shown to have been gifted by the
defendant No.2 Mahant to the defendant No.3 Raghuvirdas.
Leaving aside the question of the validity or otherwise of the
gift which is to be considered later on, these properties were
the properties of the public trust. They are shown to be the
properties of the private khata of the defendant No.2
Mahant. For the reasons as already stated earlier, all the
properties though shown in the private khata of the Mahant
were the properties of the temple of which he was the
Mahant. Hence, these properties are also held to be the
properties of the public trust.
26. The above discussion ends the issue which has arisen in
the Misc. Application No.1 of 1964. The properties indicated
above are held to be the trust properties. So, the finding to
the issue is recorded accordingly.”
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46. The learned Senior Counsel Mr. Mehul Shah tried
and argued to show that the learned District Court has
committed error, much less patent error, in dealing with
properties as of religious nature; however, I find no substance in
the submission.
47. In plurality, the issues are discussed hereinabove by
the learned District Court as well as by this Court and the main
bastion of evidence claiming the property to be of a Mahant's
own property has been thoroughly discussed hereinabove to
arrive at the conclusion that the learned District Court has not
committed any error, much less error of evaluating the evidence.
48. The recital in the plain papers, which by no means,
treated as an instrument recognized by the ‘TP Act’ or the wills,
cannot be the basis to believe that the properties were purchased
by the Mahant from his own fund. All the recitals in all the plain
papers, including the sale deed made by the Mahant of the
Temple, vociferously exposes that the Mahant acted as an
Administrator or Manager of Lord Narsinhji's property or Lord
Narsinhji's Temple Sansthan, but it is his mortal greed and
insatiable desire, which carries this long lasting litigation.
49. Learned Senior Counsel Mr. Mehul Shah also argued
that late Mahant Dayaram was a partner in the floor-mill, which
shows that he had income from his own source, and that was his
personal income. However, merely producing a partnership deed
without producing any account cannot infer that Mahant
Dayaram had any personal income.
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50. It is further material to observe that after the matter
was remanded to the learned District Court to re-decide the
issue, since late Mahant Dayaram was expired, his son - Mr.
Vijay, who is the appellant herein, did not put forward his
case/line of defense or any further or fresh evidence to buttress
the claim that the properties are of personal title.
51. Again, at the cost of repetition, let me note that the
appellant - Mr. Vijay is not appointed as a Mahant of the Temple
either by any instrument or by the custom and rituals
recognized to be followed for appointing the Mahant. He is
fighting the issue only on the ground that he is the son of late
Mahant Dayaram.
52. It is equally of importance that the properties, for
which the super-duper fight is going on, has been succeeded or
descent from Mahant/Guru to Chela. All Gurus and Mahant,
except late Mahant Dayaram were celibate. Late Mahant
Dayaram was a Hedonist or Sybarite, who got married, and did
not practice celibacy like the former Mahants. Moreover, there
was no personal succession, i.e. a succession in favour of the
natural relative or natural heir. It is only a succession from Guru
to Chela. Then, in that circumstances, how can the appellant
claim that the properties which belonged to and were in the
name of late Dayaram, can be inherited under the personal law
in his favour. This question remain unanswered. Mr. Vijay –
appellant could not settle this dust by leading evidence before
the learned District Court or by showing any evidence during
hearing of these appeals.
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53. At the end of the detailed discussion on the subject
that which property is of secular character and which property is
of religious character, the learned District Court, after remand,
has decided that few of the properties are of secular character
and belonged to the Mahant. It also has left out to decide the
properties of Mahuva Sansthan to be a public property and
allowed to keep the same in name of the Mahant, as those
properties were not included in the Schedule.
For convenience, the breakup of property, which are
held to be a public trust property and private property, are
shown in the following table:-
SR. VILLAGE PUBLIC TRUST PRIVATE
NO. NAME PROPERTY PROPERTY
1. DHAMAN 233, 225
234,
224/2,
235
118
504
2. CHOKHAD 30/1 -
30/2
31
3. ASUNDER 75 69/1
76
4. TAKSADI 77 -
5. KOLSANA 117 -
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6. ASTAGAM 175 -
7. PADGHA 173 -
184
299
561
570
8. ALAGADH 73 -
9. VEHAVAL 430 -
437
10. MUDAT - 635
608
11. BUTWADA 255 -
12. BAMANIYA - 82
13. ANDHANTRI 12 157
23 158
102
104
110
117
118/2
120/1
105
125
141
144
156
66
118/1
152
76
87
109
41
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14. KACHAKA 22 -
15. TALAVADI 106/1 -
16. - CATEGORY- A PART II -
Land and buildings
which in actual
possession of D2.
All of them which is
there in plaint is of
trust's property
17. - CATEGORY- A PART III -
All the immovable
properties are held to
be public.
18. DHAMANCATEGORY B-those NIHALI
properties which have 1/1
PERTHAN been alienated by the 4/1
deceased D2. 6
MAHUVAR DHAMAN 69
673
ASUNDER 567
PERTHAN
TAVDI 14
5/1
CHHINAM 79
MAHUVAR
CHOKHAD 54
ASUNDER
ZERVAVDA 123
126
KHARVAN 166
TAVDI
VELANPUR 298
CHHINAM
MAHUVARIA 390
CHOKHAD
NIHALI 257
ZERVAVDA
501
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KHARVAN
35
VELANPUR
423
MAHUVARIA
389
390
19. CHOKHAD CATEGORY C -
D2 gave to D3 by oral
gift
Chokhad
151
207
207/1
283
288
54. Now let examine the oral evidence. The Mahant has
examined himself and two disciples, whereas the original
plaintiff have examined devotees. In this oral deposition, the
Mahant entered into the witness-box at Exhibit-32 (Exhibit-
130/32 at page No.578 of the paper book).
55. In his chief-examination it is more or less support of
his line of defense, however, in cross-examination, he admitted
that all the Mahants were unmarried and Celibate and they have
renounced the worldly affairs and became Sadhu, except him.
He also accepted the descent of the property from Guru to Chela
and a partition between the Chelas of Guru Govindasji. He also
accepted that till his Guru Govindas expired, none of his four
Chelas had married and that they married subsequently. The
relinquishment deed was executed between him and his
Gurubhais.
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56. Mahant Dayaram was confronted with his previous
statement recorded during the inquiry proceedings and in most
of the reply to his confrontation, he has stated that he might
have deposed something at that relevant time, but it was out of
error and now is deposing some different words. This
inconsistency in two statements of the late Mahant Dayaram
itself stifles the legitimacy and evidentiary value of his
statement.
57. In the cross-examination, as far as the personal
source of income of either Mahant Dharamdas or Santokdas is
concerned, he stated that he has no documentary evidence. He
has further admitted that he has no evidence to establish that
both the Mahants were engaged in money-lending business. He
changed his version from the earlier statement produced at
Exhibit-41/47 in the proceeding after admitting that he has
received some parcels of the land belonging to Bholadas
Ishwardas and Keshavdas Kalidas from will. He stated that he
has registered the same in another Trust.
58. He has further stated that he was never appointed as
a Mahant of the Lord Narsinhji Temple, but was a successor of
the Lord Narsinhji Temple. He was confronted with his previous
statement at Exhibit-41/80, whereby he has stated that he was
appointed as a Mahant of the Narsinhji temple as per the rituals
and customs, but in the same breath, he clarified that it was his
error.
59. After showing Exhibit-41/80, Mahant Dayaram was
asked that in an earlier statement he had stated that several
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parcels of the land were received by the Lord Narsinhji Temple as
a Dharmada Chhakariyat and Dharmada Devsthan. In the
deposition he denied it, but with the further deposition that he
does not recollect that whether he has stated that the several
parcels of the land were received as Dharmada Chhakariyat and
Dharmada Devsthan in Exhibit-41/80.
60. He also deposed that in Exhibit-41/80, his previous
statement, he has stated about the Barkhali land dedicated by
the erstwhile State of Baroda. He has further admitted that
several parcels of the land were received as a Dharmada
Chhakariyat and Dharmada Devsthan land, but he could not
recollect which parcel of the land was registered in whose name.
61. He further stated that whatever exists in the record is
true and correct. He has further stated that he cannot say
whether these lands are running in name of the Lord Narsinhji
or otherwise.
62. He has admitted that despite Barkhali land was
converted into the Khalsa land in the name of the Mahant, he
has sought permission from Sur-Suba to sell the immovable
property, although he was not required to take any permission.
63. He was confronted with the document, i.e. registered
sale deed, and in a cross-examination was asked that in this sale
deed, it was stated that the parcels of the land stand in name of
Lord Narsinhji. He accepted the same, but then in the second
breath he stated that it is the property of personal ownership.
For some parcels of the land, he admitted that there is no
documentary evidence to show that he has received this land as
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a personal or secular property, but then says that it was received
as an oral gift.
64. Thus, what can be noticed that the Mahant, who
expected to renounce the world and worldly affairs and being far
from the monetary or property transaction, rather has exploited
the system and taken the advantage of his name, although as an
Administrator of the immoveable properties of a deity, have
dealt with those properties treating it as personal property. In
fact, by egregious abuse of the process of law, the Mahant has
taken full exploitation of the deity's properties.
64.1 In aforesaid reasons, both the appeal of year 1979
fails.
65. Next is to draw decision in the appeal being First
Appeal No. 4206 of 2024, whereby Mr. Vijay s/o. of late Mahant
Dayaram questioned the legality and propriety of the judgment
and order passed by the 2nd Additional District Judge, Navsari.
66. While deciding the Civil Misc. Application No.56 of
2017 in exercise of the jurisdiction under Section 47 of the 'GPT
Act', District Court was pleased to appoint the respondents as
Trustees of the Lord Narsinhji Temple Trust, Dhaman and
directed the Charity Commissioner and Assistant Charity
Commissioner to give the effect of the order.
67. What has been principally argued by the learned
Senior Counsel Mr. Mehul Shah to belabour the impugned
judgment that the learned District Court, while appointing the
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Trustees under Section 47(3) of the 'GPT Act', did not follow the
mandatory provision under Section 47(4) of the 'GPT Act'.
67.1 He further submitted that the learned District Judge
has taken the assistance from the meeting alleged to have been
called on 26.01.2016, popularly known as a “Gram Sabha”,
whereby around 150 persons were present, and have had
appointed the Five Petitioners (Respondents in the present
matters) to be the Trustees of the Lord Narsinhji Temple Trust
on the ground that the other public spirited persons, who
initiated the proceedings to declare the Trust as a ‘public trust’
have died and new Trustees are required to be appointed, to
manage affairs.
67.2 Learned Senior Counsel submits that this procedure,
which is taken as base by the learned District Court to appoint
the Trustees is foreign to the provision of Section 47(4) of the
'GPT Act'. At the cost of repetition, learned Senior Counsel
submits that, in all, five modes are available under Section 47(4)
of the 'GPT Act' to appoint the Trustees. None of the modes,
since have been followed by the learned District Judge while
passing the impugned judgment, passing of judgment thereof to
appoint respondent, is no less than the miscarriage of justice.
67.3 He also referred to an order dated 20.01.2025 passed
in Civil Application for stay by coordinate Bench of this Court
and submitted that even at the first blush, the coordinate Bench
was pleased to observe that the Charity Commissioner has not
conducted the inquiry in its true prospective and did not
evaluate the proper evaluation of the evidence.
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67.4 Learned Senior Counsel would refer to para 16 of the
order and submit that the inquiry is conducted under Section
47(2) and Section 47(3) of the 'GPT Act' contemplates the policy
measures to be taken for such exercise and therefore, looking to
these facts and circumstances, he would submit that the learned
District Court has committed serious and manifest error in
exercising his jurisdiction under Section 47(3) of the 'GPT Act',
ignoring the provision of the law stated in Section 47(2) of the
'GPT Act' and Section 47(4) of the 'GPT Act'. Therefore, learned
Senior Counsel Mr. Mehul Shah submitted that the order passed
by the learned District Judge is patently perverse and is to
required to be set aside.
67.5 Learned Senior would further submit that the learned
District Court, without examining the veracity of the character of
the five persons, appointed them as Trustees.
67.6 Lastly, he would further submit that two to three of
the persons appointed as Trustee are not living in the village
Daman, but they are now Non-resident India (NRIs) and some of
them have also filed an application before the American
Government to grant the permanent visa/citizenship. Therefore,
they were not fit person/s to be appointed as a Trustee of the
Trust.
67.7 In line of above discussion, learned Senior Counsel
Mr. Mehul Shah submitted to upturn the judgment and order
passed in Civil Misc. Application (Trust) No.56 of 2017 and
consequently, to dismiss the said application.
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68. Per contra, learned Senior Counsel Mr. Percy Kavina
and learned AGP Ms. Dhwani R. Tripathi supported the
impugned judgment and order and submitted that the learned
District Judge was constrained to pass the impugned judgment
and order on the ground that the scheme, which was framed
earlier by the learned District Judge, Navasri, has been stayed
by the Gujarat High Court in the appeal proceedings being First
Appeal No. 77 of 1979 and First Appeal No. 478 of 1979.
68.1 By interim order, Mahant Dayaram appointed only as
a Pujari and the management of temple trust was kept with the
public spirited persons, who had initiated the proceedings.
68.2 Unfortunately, during the pendency of the
proceedings, the public spirited persons and the devotees, who
had initiated the proceedings, have expired and the public trust
of the Lord Narsinhji Temple left in lurch. No one was taking
care of it, and therefore, the Five petitioners (The respondents
herein) had preferred an application to appoint new trustees.
68.3 This Court, in the hearing of the first appeals of
1979, directed the learned District Court to decide the same as
early as possible within a time-bound manner and accordingly,
the Civil Misc. Application for appointing the Trustees was
decided.
68.4 Learned Senior Counsel Mr. Percy Kavina and
learned AGP Ms. Dhwani R. Tripathi further submitted that
when this Court has passed the order on 17.03.2021 to complete
the hearing of the Civil Misc. Application within 06 months, no
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contention was raised by the appellant and in view of that the
contention raised by the appellant that the learned District
Court exceeded the permissible jurisdiction is not entertainable.
68.5 It was further submitted that as soon as the scheme,
which was approved in the judgment of the Regular Civil Suit
No.3 of 1964 would come in existence, the appointment of the
new Trustees would take place as per the scheme till then
respondents are appointed as Trustees, which are in nature of
ad-hoc Trustees, and therefore, he submitted that the appeal is
bereft of merit.
68.6 They would submit that, even otherwise, Mr. Vijay,
who is the appellant herein, who even is not qualified to be the
Pujari of the Temple, has no reason to file this appeal.
68.7 Learned Senior Counsel would further submit that
pursuant to the order passed by this Court dated 20.01.2025,
whereby the Assistant Charity Commissioner, Navsari, was
directed to submit a report as regards to the veracity of the
Resolution of the Gram Sabha dated 26.01.2016, he would
further submit that pursuant to which, an inquiry was
conducted and a report was tendered by the Assistant Charity
Commissioner and again, in the Gram Sabha, it was reiterated
that these five applicants to be appointed as Trustees. Therefore,
learned Senior Counsel submits that the impugned judgment
passed by the learned District Court is far from interference, and
thus, it is submitted to dismiss the appeals.
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69. At the outset, few facts, which are necessary to
reconsider or regurgitate that in a Regular Civil Suit No.3 of
1964, the District Judge beside passing several orders, also
ordered to frame the scheme in exercise of powers under Section
50 of the 'GPT Act'.
70. The Division Bench of this Court on 22.08.1979
passed the following final order:-
“Ad-interim relief confirmed subject to modification in the
following terms:-
1. Trustees may take possession of entire temple for
management. Appellant will work as Pujaris under
supervision of Trustees and will be allowed to remain in
possession of the portion occupied by them as Pujaris.
2. Regarding other immovable properties stay regarding
possession only on condition that security to the
satisfaction of trial Court is furnished for mesne profits
within six weeks.
3. Main Appeal to be posted for hearing in December, 1979.
Appellants shall supply five Books meanwhile.”
71. Thereby, the Division Bench of this Court, while
staying the order of framing scheme of the trust, was pleased to
permit the trustees to take the possession of the entire temple
for management and the appellant - Mahant Dayaram was
permitted to work as a Pujari under the supervision of the trust.
Unfortunately, the respondents of the aforesaid appeals, who
were allowed to be the Trustees and to take the possession of the
entire temple for management, were expired and at different
intervals, upon request of the appellant, they were deleted.
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72. Consequently, the management of the trust and the
temple entirely fell in vacuum. Nobody was there to take care of
the trust or the temple.
73. Being guilty of repetition, let me say that Mahant
Dayaram's status was just of a Pujari and nothing beyond it.
This order dated 22.08.1979 was not challenged by any of the
parties concerned.
74. When matter was remanded back to the learned
District Court in the decision of First Appeal No.244 of 1979 with
First Appeal No.77 of 1979, Mahant Dayaram was already
expired, so also some of the trustees.
75. It is known and established procedure that the next
Mahant is to be appointed by the previous Mahant under the
Guru-Chela tradition. Mahant Dayaram was a married person
and present appellant - Mr. Vijay is his son. He was never
appointed as Mahant either by late Mahant Dayaram or by any
tradition or custom. In fact, Mr. Vijay is not appointed Mahant,
but he is self-proclaimed Mahant.
76. Mahant Dayaramdas has carried the entire
proceedings in capacity of being appointed as a Mahant following
the Guru-Chela tradition, he was appointed as a Mahant by his
Guru Govinddas as he was the eldest Chela.
77. There are some other traditions and customs to be
followed to appointed a Mahant. It is coming from the record.
However, after the death of Mahant Dayaram, no such procedure
was carried out. It is not a case of appellant - Mr. Vijay that his
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father, Mahant Dayaram, has appointed him as a Mahant as he
was his Chela, nor any rituals, reference of which is given in the
earlier part of the judgment, was followed.
78. The succession of Mahantship, which took place in
the tradition of Guru to Chela, has been converted into the
personal mode of succession by Mr. Vijay – appellant, . In the
case on hand, now Mr. Vijay claim right as per the Hindu
Succession Act, when entire succession took place as per Guru-
Chela parampara or tradition. Whether he is entitled to or not,
this is a moot question. Unfortunately, it has been lost sight of in
a voluminous litigation.
79. Mr. Vijay has been permitted to carry the litigation,
but the question remains that when the District Judge is
exercising the power under Section 47(3) of the 'GPT Act' to
appoint the Trustee, can he be an opposer, or can he be the
person questioning the appointment?
80. I may again reiterate fact that Mr. Vijay is neither a
Mahant or Pujari of the Lord Narsinhji Temple or Trust. His
status is just limited to being the son of Mahant Dayaram. On
the principle of Hindu Succession Act, 1956, he cannot step in
the shoes of Mahant Dayaram and claim to be even a Pujari of
the Lord Narsinhji Temple.
81. Significant to note that, at no point of time, in the
aforesaid proceedings he urged this Court to appoint him as a
Pujari of the Lord Narsinhji Temple in place of his father. In all, it
can be said that the present appellant - Mr. Vijay is carrying the
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litigation only to satisfy his mortal greed and insatiable desire to
take away the deity's property.
82. In Civil Misc. Application for appointing a Trustee,
upon rival pleading, the learned District Court framed the
following issues:-
“(1) Whether the applicants are entitled to be appointed as
trustees of Shri Narsinhji Mandir Public Trist, dhaman in
view of the approved draft scheme for adminstration and
management of public trust as per the judgment passed by
the Hon'ble District Judge, Valsad in Regular Civil Suit No.
3/64 and Misc Civil Application No.1/64 dated
11/09/1978?
(2) Whether the opponent no.1 proves that as per clause-8
of the scheme regarding future appointment of trustees, the
Assistant Charity Commissinor, surat is entitled to appoint
the competent persons as trustees?
(3) Whether the opponent no 3 proves that the application
does not fall within the scope of section-47 of the Gujarat
Public Trust act, 1950?
(4) Whether the applicants are entitled to relief prayed for?
(5) What order?”
Issue Nos.1 & 4 were answered in affirmative, whereas
Issue Nos. 2 & 3 were answered in negative and Issue No.5 was
answered as per the final order.
83. While answering the aforesaid issues, the learned
District Judge recorded the following finding:-
“9. Considering the documents and representations
produced in connection with the present application, the
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learned District Judge, Valsad, in Regular Civil Suit
No.3/64, passed an order in favour of the plaintiffs and held
that the disputed property belonged to a public trust and
directed that the plaintiffs be appointed as trustees and
vested all interests pertaining to the properties of the trust in
the plaintiff-trustees. Further, the applicants have produced
a photocopy vide Exhibit-25 of the resolution passed in the
meeting of members of Samasta Dhaman Gaam Parivar
convened for the works of Narsinhji Mandir Trust.
Considering the same, a resolution was passed in the said
meeting appointing the applicants of this case as trustees.
Thus, considering the documents produced, it has come on
record that the appointment of the aforesaid applicants was
made in the Gram Sabha. It is true that a judgment has
been passed in favour of the previous trustees in Regular
Civil Suit No. 3/64. However, the said judgment has been
challenged in appeal by the defendant in the present case.
Merely on that ground, this Court does not hold that the
proposed trustees cannot be appointed as trustees in the
present case. Considering the provisions of Section 47 of the
Bombay Public Trusts Act, whenever a trustee dies, the
Court may, upon an application, appoint any person as a
trustee. While making such appointment, the Court is
required to take into consideration the provisions contained
in sub-section (4) of Section 47. In the present case, the
aforesaid applicants have been selected as trustees by the
Gram Sabha. Further, considering the draft scheme
produced vide Exhibit-26, it is found that Clause 6 thereof
deals with the number of trustees and Clause 8 deals with
the future appointment of trustees. As per Clause 6, the
number of trustees has been prescribed as five. Further,
Clause 8, regarding the future appointment of trustees,
provides as under:- “If any trustee dies or any trustee
resigns or any trustee is sentenced to imprisonment for more
than one month for a criminal offence or any trustee
becomes mentally or physically incapable of functioning as a
trustee, then the vacancy so caused shall be filled by the
remaining trustees by a unanimous resolution within three
months of the occurrence of such event. If the remaining
trustees are unable to fill the vacancy unanimously, then
such vacancy shall be filled by the Assistant Charity
Commissioner, Surat, by appointing a suitable person from
amongst the servants of the temple as trustee.”
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Thus, considering the draft scheme, when a trustee
dies, the remaining trustees are required to fill the vacancy
within three months by passing a unanimous resolution. In
the present case, all the trustees have expired and therefore,
the vacant posts of trustees could not be filled. It is true that
if all the remaining trustees are unable to fill the vacant
position of trustee unanimously, then the Charity
Commissioner, Surat, shall appoint a suitable person from
amongst the saints of the temple as trustee of the temple.
Appointment of any new trustee in place of the deceased
trustees or any application submitted to this Court by the
Charity Commissioner under Section 47 has not been kept
on record.Furthermore, considering the application of the
applicants, the applicants are residents of Dhaman village
by birth and hold agricultural land as well as residential
houses and claim that they are qualified to fulfill the
purpose and intent of the aforementioned public trust, as
well as to protect the interests of the beneficiaries and
interested persons, and they assure and instill confidence in
the Court regarding the same. They have also stated that
they will perform their responsibilities and duties with
utmost sincerity, honesty, and seriousness for the purpose
and intent of administering and managing the property
according to the provisions of the public trust scheme, and
for the protection of the interested persons and beneficiaries
of the said trust. Considering all these submissions,
appointing the applicants as trustees appears just and
proper in accordance with the Approved Draft Scheme as per
Issue No. 1 and the order passed by the Ld. District Judge,
Valsad, in Regular Civil Suit No. 3/64 and Civil
Miscellaneous Application No. 1/64.
10. Respondent No. 1, the Charity Commissioner,
Ahmedabad, has made submission that according to
Clause-8 of the scheme, only the Assistant Charity
Commissioner can appoint a trustee. This Court is humbly of
the opinion that according to the aforementioned clause, if
the remaining trustees cannot fill the vacancy unanimously,
the Assistant Charity Commissioner, Surat, shall appoint a
suitable person as a trustee from among the worshippers /
servants of the temple for the said vacancy. In this case,
since all the trustees have expired, the question of unanimity
among the trustees does not arise, and under such
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circumstances, this Court believes that the Assistant Charity
Commissioner cannot appoint any person as a trustee. Thus,
as discussed, the respondent has failed to prove that the
Assistant Charity Commissioner, Surat, alone can appoint a
trustee as per Clause-8 of the draft scheme concerning the
appointment of future trustees. Furthermore, as discussed
earlier, the present application has been made under Section
47 of the Bombay Public Trusts Act, 1950 (under the
provisions of the Gujarat Public Trusts Act, 1950). According
to the said provisions, when any trustee dies, as per the
provision of Section 47(1)H, in any instance mentioned in
Chapter-3 where a trustee is not found to manage the
administration of the trust, any person having an interest in
that public trust or the Charity Commissioner may file an
application before the Court to appoint a new trustee. Thus,
an application must be made to the Court under Section 47
for appointment as a trustee, and the Court must keep in
mind the provisions of Section 47(4) of this Act. According to
this, it must be considered whether the appointment as a
trustee will advance or impede the execution of the trust,
and due regard must be given to the interest of the people
who have an interest in the trust, or the interest of a section
of the people. In this matter, a village resolution has been
produced vide Exhibit-25, wherein around 150 persons were
present and appointed the current applicants as trustees to
work in the interest of the trust; even then, the respondents
have failed to prove that the present application does not fall
within the purview of Section 47 of the Gujarat Public Trusts
Act.
11. Inevitably, the respondents in this matter have
filed an appeal before the Honorable High Court of Gujarat
against the order passed in Regular Civil Suit No. 3/64,
which is currently pending for adjudication before the
Honorable High Court of Gujarat. A submission has been
made on behalf of the respondents that since the Honorable
High Court of Gujarat has stayed the order passed in the
aforementioned Regular Civil Suit No. 3/64 during the
pendency of that appeal, this Court does not derive the
jurisdiction to proceed with the present application.
This Court has taken into consideration the order
dated 17/03/2021 passed by the Honorable High Court of
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Gujarat, wherein the Honorable High Court of Gujarat
directed to conduct the present application expeditiously and
conclude it within six months.
Furthermore, the Honorable High Court of Gujarat, in
its order dated 22/10/2024, has also directed to hear and
decide the present application. Moreover, the respondents
have relied upon the orders of the Honorable High Court of
Gujarat produced vide document Mark-57/2; upon reading
them, although the Honorable High Court of Gujarat has
ordered to stay the proceedings in Regular Civil Suit No.
3/64 until further orders, this Court humbly believes that as
per the aforementioned orders dated 17/03/2021 and
22/10/2024 of the High Court of Gujarat, this Court has
acquired the authority to hear the present application.”
(Translated from Gujarati to English for better understanding)
84. It is visualized that the learned District Court, while
appointing the petitioners as a Trustee, not only referred the
proceedings taken place in “Gram Sabha” dated 26.01.2016, but
also referred to some clauses of the draft scheme approved by
the District Court in a judgment of Regular Civil Suit No. 3 of
1964. It is in these circumstances, let refer Section 47 of the
‘GPT Act’, which reads as under:-
“47. Power of Court to appoint new trustee or trustees,
as the case may be.-
(1) Any person interested in a public trust or the Charity
Commissioner may apply to the Court for the appointment of
a new trustee, when a trustee of such trust-
(a) disclaims or dies;
(b) is for a continuous period of six months absent from
India without the leave of the Charity Commissioner or
Deputy or Assistant Charity Commissioner or the officer
authorised by the State Government in this behalf;
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(c) leaves India for the purpose Of residing abroad;
(d) is declared an insolvent;
(e) desires to be discharged from the trust;
(f) refuses to act as a trustee;
(g) becomes in the opinion of the Court unfit or physically
incapable to act in the trust or accepts a position which is
inconsistent with the trust; or
(h) in any of the cases mentioned in Chapter III is not
available to administer the trust.
(2) No such application shall be entertained,-
(a) unless the trustee who on account of any of the
reasons mentioned in clauses (a) to (h) of sub-section (1)
is not fit or available to administer the trust is the sole
trustee or unless by the vacation of office by one or more
trustees on account of any of the said reasons the
minimum number of trustees required by the instrument,
scheme, order or decree of the Court or usage or custom
of the trust for the administration of the trust is reduced;
(b) (i) until the expiration of a period of three months from
the date on which the trustee is not so fit or available to
administer the trust; and (ii) if a new trustee has been
appointed in the said office during the said period in
accordance with the instrument, scheme, order or decree
of the Court, or custom or usage of the trust.
(3) The Court after making an inquiry [may by order appoint]
the Charity Commissioner or any other person as the trustee
to fill up the vacancy.
(4) In appointing the trustee under sub-section (3) the Court
shall have regard-
(a) to the wishes of the author of the trust;
(b) to the wishes of the person, if any, empowered to
appoint a new trustee;
(c) to the question whether the appointment will promote
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or impede the execution of the trust;
(d) to the interest of the public or the section of the public
who have interest in the trust; and
(e) to the custom and usage of the trust.
(5) Where the Charity Commissioner is appointed a trustee,
he shall be the sole trustee.
(6) The [order] of the Court under sub-section (3), shall be
deemed to be the decree of the Court and an appeal shall lie
therefrom to the High Court.”
85. In view of sub-section 47(1)(a), if a trustee dies
leaving behind no other trustees, it gives the power to entertain
the application for appointing the new trustees. Exactly the same
scenario happened in the present case.
86. As observed hereinabove, the public spirited persons
and devotees have initiated the proceedings and were allowed to
take the management of the temple and trust, but they died
during the proceedings. No new trustees were appointed. Since
the appeals were filed by the Mahant Dayaram and now Mr.
Vijay, on their own convenience, they have deleted the various
trustees, who have been appointed to take the management of
the temple, on their death.
87. In this conundrum, which created the vacuum or
hollowness in the management of the trust, this Civil Misc.
Application came to be filed and even this Court, taking the
cognizance of such aspect, passed the order on 17.03.2021
directing the District Court to decide the proceedings for
appointment of the Trustees within a time-bound manner after
six months.
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88. It is true that under Section 47(3) of the 'GPT Act',
the Court was required to make the inquiry to fill up the vacancy
of trustees, but the word ‘inquiry’ has not been defined in the
'GPT Act'.
89. Section 2(10) of the 'GPT Act', defines the person
having interest, and it is an inclusive definition, which reads as
under:-
“2. Definitions.- In this Act, unless there is anything
repugnant in the subject or context:-
(10) "person having interest" [includes]-
(a) in the case of a temple, person who is entitled to
attend at or is in the habit of attending the performance of
worship or service in the temple or who is entitled to
partake or is in that habit of partaking in the distribution
of gifts thereof,
(b) in the case of a math, a disciple of the math or a
person of the religious pursuasion to which the math
belongs,
(c) in the case of a wakf, a person who is entitled to
receive any pecuniary or other benefit from the wakf and
includes a person who has right to worship or to perform
any religious rite in a mosque, idgah, imambara, dargah,
maqbara, or other religious institution connected with the
wakf or to participate in any religious or charitable
institution under the wakf,
(d) in the case of a society registered under the Societies
Registration Act, 1860, any member of such society, and
(e) in the case of any other public trusts, any beneficiary;”
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90. The word ‘inquiry’, as per the Black's Law Dictionary,
9th edition, means, ‘A request for information, either procedural or
substantive’. According to the Judicial Officers Law Lexicon, 2nd
Edition, ‘Inquiry’ means:- “inquiry includes the investigation into
facts, causes, effects, and relations generally; to inquire,
according to the New Standard Dictionary, inquiry means to ‘exert
oneself to discover something’. Chambers 20th Century Dictionary
lays down that the meaning of the term ‘to inquire’ is ‘to ask, to
seek’ .”
91. In this background, according to this Court, the
learned District Court was not required to conduct the trial, but
was required to make the inquiry to ascertain the truth or to
seek the opinion that who could be best person whose
appointment would be in interest of the public or the section of
the public, who have interest in the trust, as wishes of the
author of the trust or wishes of the person empowered to appoint
a new trustee is not available in the matter.
92. The learned District Court examined the Resolution
of the Gram Sabha dated 26.01.2016 and also examined the
different clauses of the draft scheme approved in the judgment of
the Regular Civil Suit No.3 of 1964 and found the five applicants
(Respondents herein) to be the fit persons to be appointed as
Trustees.
93. Pursuant to the order passed by the coordinate
Bench dated 20.01.2025, a fresh inquiry was conducted by the
Charity Commissioner and forwarded his report to this Court
with an affidavit in compliance dated 01.02.2025.
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94. In a fresh inquiry, the people of village Daman were
called to the Office of the Gram Panchayat on 30.01.2025.
Copies of the notice were served and one copy was pasted upon
the notice board of the Gram Panchayat. The Charity
Commissioner also took a photograph to show the pasting of
notice on the Gram Panchayat notice board and the persons,
who attended the Gram Sabha. Such photographs shows that it
was a mixed crowd of young and old, female and male, etc.
where minutes were also drawn. This Gram Sabha was
conducted in the hall of the primary school by the Assistant
Charity Commissioner. The minutes of this meeting has been
signed by as many as 71 persons’ statements of the people were
also recorded, and ultimately, the Charity Commissioner opined
as under:-
“At the conclusion of the inquiry, my opinion is as
under:-
Regarding the meeting held on 26/01/2016.
Out of the total 60 members present for the agenda
resolution dated 26/01/2016, in the meeting held at
Dhaman Gram Panchayat on 30/01/2025,
32 members remained present,
22 members remained absent and
6 members had expired.
As all the members who remained present expressed
their consent regarding the meeting held on 26/01/2016 as
well as regarding the appointment of trustees, it is my clear
opinion that the representation that a meeting was held on
26/01/2016 and that trustees were appointed therein is
true.
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Regarding the eligibility of the trustees:
Considering the statements of the villagers of Dhaman
Village, the Talati-cum-Mantri of Dhaman Village, the
Sarpanch of Dhaman Village, the Deputy Sarpanch of
Dhaman Village and the trustees, as well as the documents
produced on 30/01/2025, it is found that
◾ Proposed trustees are permanent residents of
Dhaman Village, Taluka and District Navsari.
◾ Proposed trustees possess movable as well as
immovable properties in Dhaman Village, Taluka and
District Navsari.
◾ Proposed trustees are reputed persons of Dhaman
Village, Taluka and District Navsari.
◾ Proposed trustees are rendering services in other
institutions as well as cooperative societies.
◾ Proposed trustees are not involved in any criminal
activities.
Therefore, it is my opinion that the proposed trustees
possess the requisite qualifications for holding the office of
trustee.
The report as above and the above mentioned statements for
the purpose of inquiry and other relevant material
documents are enclosed herewith and sent for further
proceedings, which may be noted.
Sd/-
Assistant Charity Commissioner,
Navsari Region, Navsari.
Enclosures:
1) Notice and photographs, Pages Nos. 1 to 11.
2) Statements of persons who remained present in
the meeting, Pages Nos. 12 to 19.
3) Statements of the Sarpanch, Deputy Sarpanch
and Talati-cum-Mantri, Pages Nos. 20 to 22.
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4) Statements of the trustees and identity cards,
Pages Nos. 23 to 34.”
(Translated from Gujarati to English for better understanding)
95. As against the aforesaid opinion of the Charity
Commissioner, which confirms the finding of the learned District
Court, learned Senior Counsel Mr. Mehul Shah failed to bring
any adverse material, except bare words. According to this
Court, the inquiry to appoint the Trustee twice has been
conducted, firstly by the learned District Court and then by the
Assistant Charity Commissioner, following the command of this
Court, but the result in both the exercise remains one and the
same. In view of that, the appeal found to be completely
meritless.
96. Before parting with the judgment, let me deal with
the judgments relied upon by learned Senior Counsel Mr. Mehul
Shah.
96.1 The judgment in Ishwardas Jain (Dead) through
LRs (Supra) deals with the scope of Section 100 of ‘the Code’.
The said judgment has been dealt with hereinabove.
96.2 So far as three other judgments in the case of Anil
Rishi (Supra), Adiveppa (Supra) and Kuldeep Chand (Supra)
are concerned, they are on the Principle of Burden of Proof.
96.3 As far as the three other judgments in the case of
Bihar State Board (Supra), Pandit Parmanand (Supra) and
Mahant Ramsharan Das (Supra) are concerned, they are
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dealing with how to consider that the trust is a public or private
trust.
96.4 Learned Senior Counsel Mr. Mehul Shah heavily
relied upon the judgment of Bihar State Board (Supra) to
submit that merely the Mahant did not produce the copy of the
Sanad, it cannot be held that the properties are of a public
nature for a religious and charitable trust. This judgment can be
factually distinguished as this Court has examined the gift given
by the devotees or villagers to Bawa respecting them as a
Manager or Pujari of the Lord Narsinhji temple in the words that
his successor would be entitled to enjoy the properties, where
succession runs in as per Guru-Chela tradition and not under
the personal succession. Therefore, once a Guru-Chela tradition
is established for a mode of succession and the properties are
transferred from Guru to Chela, it is to be presumed that it was
a dedication to the deity and the property has a charitable
purpose and in that event, the Mahant was to establish that the
properties were his personal gain, otherwise it is implied that it
is the properties of the public trust.
97. In the case on hand, in the inquiry proceedings, by
producing Exhibit-51, a list of the properties, the Mahant
Dayaram himself has accepted that several properties are
properties of religious nature, dedicated to Lord Narsinhji.
98. Further, it is also established fact that the temple of
Lord Narsinhji is held to be a public trust. It is true that
descendant of private properties of the Mahant to the Chela may
not warrant its nature as religious, but in the case on hand,
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several parcels of the land were granted by the erstwhile State of
Baroda in the tenure of Barkhali land and these lands
admittedly were the land granted for the purpose of maintaining
the temple of Lord Narsinhji. Later on, these lands were
converted for the private purpose and sold to third parties by the
Mahant as an Administrator of the temple, clearly gives the idea
that all these are the dedication to the temple and not to the
Mahant.
99. Even a private gift, though not executed by a mode
recognized under the ‘TP Act’, are far from establishing that it is
a private gift to the Mahant.
100. Two judgments, i.e. judgment in the case of Union of
India (Supra) and Digambar Adhar Patil (Supra) were pressed
for a proposition that the revenue entries hold an evidentiary
value, there is no doubt on this proposition. However, when the
revenue record is traversed with other unimpeachable
documentary evidence on record, the revenue entries by itself,
cannot be a definite to prove absolute title.
101. Reliance placed on the judgment in case of Bharat
Amrutlal Kothari (Supra) and Rohit Singh (Supra) are
misconceived. Learned District Court has not granted relief
beyond what is prayed for by the original plaintiff.
102. As far as the judgment in the case of Keki Pestonji
Jamadar (Supra) delivered by the Bombay High Court is
concerned, again let me say that, the proceedings of Misc. Civil
Application No.1 of 1964 remained within the bounds of Section
19 of the ‘GPT Act’ and has not gone beyond it. The proceedings
of inquiry under Section 19 of the ‘GPT Act’ since was clubbed
with the suit proceedings under Section 50 of the ‘GPT Act’,
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Schedule of the properties stated in the inquiry proceedings
under Section 19 of the ‘GPT Act’ being analogous to the
Schedule of the properties stated in the suit proceedings. Thus,
the Inquiry report and the suit proceedings had conflated with
each other under one final decision.
103. In view of above, for the foregoing reasons, all the
three appeals are arid of merits, rather it is an end result of
deliberate stretching of appeals over more than four decades,
which egregiously displays abuse of the judicial process.
Probably it was a calculated approach that turns a mechanism
for justice into a weapon of attrition, actively exploiting
systematic backlogs to wear down the very purpose of declaring
Lord Narsinhji’s temple as a public trust.
104. The Civil Application filed to take punitive action
against the respondents for alleged breaching of the order, is
perhaps a part of the designed tactics to prolong the litigation.
105. Filing of the Darkhast and seeking registration of the
Trustee pursuant to the impugned judgment, maybe stayed by
this Court, would not ipso-facto be a violation or breach of the
order and such cannot be questioned by Mr. Vijay, who has no
status of being a Pujari or Trustee of the Trust.
106. The four decade prolonging of proceedings secures an
unfair advantage to appellant, denying the fruits of the decision
rendered way back in 1971, is atrocious to the Rule of Law.
107. The strategic procrastination weaponizes the judicial
proceedings to exhaust the opponent's life, finance and patience.
Continuously engineering the delays, actively denies the finality
to justice and reduces the judicial proceedings to a tool for
Page 154 of 155
C/FA/77/1979 CAV JUDGMENT DATED: 22/06/2026
personal gain. Their carrying out litigation for forty years turned
legal redress into a travesty of justice.
108. In the wake of the above reasons, all the three
appeals deserve no consideration and are required to be
dismissed. Accordingly, they are dismissed. Decree to be drawn
forthwith.
i) Interim-relief, if any, granted earlier is vacated
forthwith.
ii) Connected Civil Applications are accordingly
dismissed.
iii) Registry to maintain the copy of the judgment in all
the appeals and with the further direction that the Record &
Proceedings be sent back to the concerned Court forthwith.
Sd/-
(J.C. DOSHI, J.)
In response to the request of learned Senior Counsel
Mr. Mehul Shah to keep in abeyance the judgment and order
passed in FA Nos.77 and 478 of 1979, learned Senior Counsel
Mr. Percy Kavina appearing for the newly added respondents in
seriatim submits that for Six (06) weeks, the newly added
respondents shall not execute the judgment and order passed by
this Court today. Learned AGP Ms. Dhwani Tripathi also joined
the statement of learned Senior Counsel Mr. Percy Kavina.
In view of above, the request of learned Senior Counsel
Mr. Mehul Shah is disposed of accordingly.
Sd/-
(J.C. DOSHI, J.)
Raj
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: RAJ SUBHASH DHOBI(HC01779), Private Secretary, at High Court of Gujarat on 22/06/2026 18:14:05
Page 155 of 155
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