Holding

The Supreme Court set aside the High Court judgment and remitted the case for fresh consideration of the sole‑trustee appointment, emphasizing the relevance of clause 5 of the scheme and the pending Karnataka litigation.

Summary

The dispute concerned the appointment of a sole trustee for the Karveer Peeth, a public trust registered under the Bombay Public Trust Act, after the Charity Commissioner appointed the second respondent under s.47. The appellant argued that the presiding Swami must be a sannyasi and that clause 5 of the 1963 scheme, together with a pending Karnataka High Court litigation, dictated who should be trustee. The respondent contended that the Karveer and Sankeshwar Peeths are separate legal entities, each with its own registration, and that the Karnataka case was not part of the record. The Supreme Court held that the High Court had erred by not examining clause 5 and the relevance of the Karnataka judgment, and therefore set aside its order. The matter was remitted to the Bombay High Court for a fresh determination of the appropriate sole trustee, with a direction to dispose of the issue expeditiously.

Issues considered

Whether clause 5 of the 1963 scheme requires the presiding Swami to be the sole trustee of the Karveer Trust.
Whether the Karveer and Sankeshwar Peeths constitute branches of a single entity for purposes of trustee appointment.
Whether the pending litigation before the Karnataka High Court must be considered in appointing the sole trustee.
Whether the appointment of the second respondent under s.47 of the Bombay Public Trust Act is valid given the requirement of sannyasa and other qualifications.
Whether the High Court erred in not giving effect to the scheme and the Karnataka judgment.

Subjects

public trustsole trusteeBombay Public Trust Actsannyasareligious institutiontrust schemecharity commissionerregistration of trustspending litigation

Judgment

.. :
PANDITVASUDEV VYAS·(DEAD) THROUGH LRS, ·
. ' . '. . v. ., ~

BOARD OF MGMT, S,S.J.S. PEETH AND ORS.•

APRIL 25, 2006
.•.·
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] B

Trust:

r 'Public Trust-Karveer Peeth . established .by Jagadguru
Shankaracharya-Appointment to the post of sole trustee of Karveer Peeth- C
Commissio'ner"<1ppointed second respondent as sole trustee-Appeal against,
"dismissed by High Court--:Challenge to-Held: A scheme wasframedin1963
'for 'administration of Karveer Peeth stating· that the .presidii1g swamy of
'Kltf'Veer Peeth would be the sole trustee of Karveer Peeth-High ·Court did
not consider the scheme~Matter renlitted 'Iv' High. Court for fresh' D
. consideration.

Jagadguru Shankaracharya had established various peeths, two of which
' were at Kolhapurknown as Kaveer Peeth artd Belgauin .·known·as Sankeshwar
·Peeth. Both were separately registered. Karveer Peeth was registered under
lhe'Bilinbay Public Trust Act The question:aroseabout the appointmentto · E
the p'ost Of sole trustee of'the Karveer Peeth. The requirement was that
·proposed appointee niust be great scholar of Veda· and· a'Sanvasi;The latter
qualification could'be got even after'the selection.
: ,'

• 1 ' In 1963, Charity Commissioner had framed· a scheme for administration -F
.of Kar.veer Peeth. Para 6 of the Scheme stated.that the the1,1. occupant of Karveer
· Peeth ·shall be sole- trustee of Karveer Peeth only subject to deeis,on in,pemJing
litigation in Karnataka High Court. This litigation concluded deelaririg En_1ade
Swami as true Shankaracharya of the Sankeshwar-Karveer Peeth.

Charity Commissioner appointed the second respondent as sole trustee ·G
of Karveer Peeth. Appellant challenged the appointment of second res'pondent
on various grounds including that he was not a Sanyasi and that the tWo Peeths
which were separately registered were in fact one. The First appeal and LPA
both were dism'issed. . - . < • - -· ' - •

"
273
274 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A In appeal to this Court, appellant contended that High Court committed
an error in not considering clause 5 of the Scheme and in not considering
the proceedings before the Karnataka High Court as the judgment of the
Karnataka High court formed part of the records.

Allowing the appeal and remitting the matter to High Court, the Court
B
HELD: l. The question as to whether both the Peeths are branches of a
common entity may be determined having regard to Clause 5 of the Scheme
ofl rust framed in the year 1963. This Court refrains from going into the
said question and in particular the history thereof, as the High Court did not
C addre~s itself as regards the import of Clause 5 of the Trust Deed. 1280-CI

2.1. The question as regards appointment of a sole trustee is a matter
of great importance having regard to the provisions of the Bombay Public
Trust Act. The Charity Commissioner and consequently the appellate courts
should have made all endeavours to give effect to the desire of the founding
D trustees, if the said provision is applicable. It is in that view of the matter, the
heirs and legal representative of original applicant may be permitted to step
into his shoes. This question may be raised before the High Court. 1280-D-EI

2.2. Assuming that the two Peeths were separately registered but, in
terms of the trust deed, there cannot be any doubt whatsoever that Clause 5
E of the Scheme was relevant for the purpose of determination of~hc question
as regards the appointment of the sole trustee. The said question was of great
relevance, even if it be held that the two Peeths were registered separately
and thus, were two separate entities in the eyes of law. It has not been disputed
that the said judgment of the Karnataka High Court formed part of the record
F before the courts below. Its relevance for the purpose of interpreting Clause
5 of the Scheme cannot be disputed. Whether the said Clause tits in with the
Scheme is also required to be determined on the basis uf the materials on
record. 1280-F-HI

CIVIL APPbLLATL JURISDICTION: Civil Appeal No. 735I o\2001.
G
From the Final Order dated 24.4.2000 of the High Court of Bombay in
LP.A. Stamp No. 11607/2000.

R. Srivastava, E.R. Kumar and P.H. Parekh for the Appellants.

H Chinmoy Khaladkar. S.K. Nandy, S.S. Shinde, Mukti Choudhary for V.N.
PANDIT VASUl)EV VYAS (DEAD) THROUGH LRS. "·BOARD OF MGMT. SSJ.S. PEEtH [SINHA. lj 275

Raghupathy, Ms. Bina Madhavan (NP) and M/s. Lawyer's Knit & Co. (NP) A
for the Respondents.

The Judgment of the Court was delivered by

S.B. SINHA, J. The Appellant herein is a Senior Professor and Dean
of the Poddar Government Ayurvedic Medical College and Hospital in Mumbai. B
He was also the Dean of Faculty of Ayurved in the University of Bombay.

The dispute involved in this appeal, which arises out ofia judgment and
order dated 24th April, 2000 passed by a Division Bench of the High Court
of Judicature at Bombay in L.P.A. Stamp No. I I607 of 2000, centers round the
appointment to the post and seat of Jagadguru Shankaracharya/Sole Trustee C
of the Respondent-Trust.

The Appellant contends that he as a disciple of Jagadguru
Shankaracharya believes that the spiritual head of well-known Math should
be appointed according to traditions, customs and usages recognized by law D
and he should be a great scholar of Veda, Vedangas and Indian Philosophy.
He should have also been initiated into sannyas by a Guru.

One Sankeshwar Peeth was established by Jagadguru Shankaracharya.
The said Peeth is situated in the District of Belgaum in the State of Karnataka.
Another trust known as Karveer Peeth was estabiished in the District of E
Kolhapur in the State of Maharashtra.

Whereas the Karveer Peeth is registered in terms of the Bombay Public
Trust Act, the Sankeshwar Peeth is registered separately. One Erande Swami
is said to have been nominated by his Guru to succeed him as a sole trustee
in respect of the said Sankeshwar Peeth. It is, however, contended that he F
expressed his inability to act as Shankaracharya. The Appellant contends that
both the Sankeshwar Peeth and Karveer Peeth are branches of a single entity
known as Sankeshwar-Karveer Peeth. The said contention is denied and
disputed by the Respondent.

It is, however, not in dispute that the matter relating to appointment of G
a trustee in relation to Karveer Peeth came to be considered by the Charity
Commissioner in terms of the provisions of the Bombay Public Trust Act. A
proposal was made for appointing Shri Ramchandra Narhar Kulkarni the
Second Respondent herein as a Sankaracharya of the said Peeth; objections
whereto were filed. The Appellant herein was also one of the objectors. By H
276 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A an order dated 11.11.1982, the Charity Commissioner appointed the Second
Respondent as sole-trustee of the Karveer Peeth in purported exercise of its
power under Section 47 of the Bombay Public Trust Act with the condition
that he should take sannyas before he enters upon the charge of the sole-
trustee of the Karveer Peeth stating:
·.
B "So far as the point that the sole-trustee must be a sannyasi, there
is no dispute about it at all. It is a pre-requisition that whoever
presides over thi.s Peeth he must be sannyasi."

C
The Charity Commissioner although opined that there could not be any
dispute about the fitness and qualification of Shri Erande Swami for being
appointed as the sole-trustee, but proceed to observe that mere learning was
not enough under the Scheme to be appointed as a sole trustee of the Peeth
-
and his name could not be considered. In fact the name of Shri Kulkarni was
reconsidered although he had withdrawn his claim.

D A First Appeal being First Appeal No. 166 of 1983 was preferred
thereagainst by the Appellant. Respondent Nos. 4 and 5 herein. The said
appeal was dismissed by an order dated 20th January, 2000. A Letters Patent
appeal was preferred thereagainst by the Appellant which has been dismissed
by reason of the impugned judgment dated 24.4.2000.

E In this appeal, we are concerned with a short question, viz., as to
whether in terms of the Scheme for the Management and Administration of
the Public Trust Shri Swami Jagadguru Shankarcharya Peeth, Kolhapur, the
Respondent No. 2 could have been appointed as a sole trustee.

It is the contention of the Appellant herein that at all material point of
F time, a litigation was pending in the State ofKarnataka culminating in Regular
First Appeal No. 143 of 1982 before the High Court of Karnataka at Bangalore.
The said First Appeal arose out of a judgment and order dated 27.2.1982
passed in OS No. 8 of 1972. In the said judgment, inter alia, the following
issues were framed:

G "I. Whether the Plaintiff proves that the succession to the office of
the Head of Sankareshwar Karvir Math is governed by customs and
practice as alleged in para (3) of the Plaint?

2. Whether the Plaintiff proves that the Second defendant was validly
dismissed by Shri Guruswami?
H
PA!'1JIT VASUDEV VYAS (DEAD) THROUGH LRS. '· BOARD OF MGMT. S.S.J.S. PEETII [SINHA, J.J 277

3. If so whether the second defendant lost all his rights and privileges A
as Adhikari Shishya?

4. Whether the Plaintiff proves that the Ist defendant was validly
dismissed by Shri Guruswami Shirolkar on or about 8.9.1958?

5. If so, whether the Ist defendant lost all his rights and provisions B
as Adhikari Shishya?

6. Whether the Plaintiff proves that he was initiated as Adhikari
Shishya on or about 15.10.1958 as alleged in para (o) of Plaint?

7. Whether the Plaintiff proves that he is entitled to the office of the
. trustees of the Math and the suit properties and to the Management C
thereby?

8. Whether the plaintiff proves the alleged last will and testament of
15.10 ofShri Guruswami Shirolkar?

9. If so, whether the Is! defendant proves that the will is void and D
does not affect his interests?

I0. Whether the Plaintiff proves that the Ist defendant is in illegal and
unauthorized possession of the suit properties?

11. Whether the 1st defendant establishes that from 1.7.1957 he became E
the Shankaracharya Jagadguru and the rightful owner and trustee of
the Math and the suit properties as contended by him?

12. Whether 1st defendant shows that Shri Guruswami Shirolkar had
ceai;ed to be the Jagadguru on or about 15. 10.1958?

13. Whether the Plaintiff is entitled for the declaration sought? F

14. Whether Plaintiff is entitled to get possession of the suit properties?

15. To what reliefs are parties entitled?"

The said appeal was allowed inter alia stating: G
"In these circumstances we have no hesitation in reversing the finding
of the trial court that the dismissal of the first defendant in the year
1958 was illegal and void. We, therefore, hold that first defendant was
dismissed iri September, 1958 by a valid order and he ceased to be
Adhikari Shishya thereafter. H
278 SlJPREME COURT REPORTS (20061 SUPP. I S.C.R.

A If th.: dismissal ot first defendant was valid there can be no doubt
tnat Guru;,wami was competent to initiate first plaintiff as Adhikari
Sh1snya which he did on 15th October, 1958. Plaintiff, therefore, became
a valid Adhikari Shishya of Shirolkar Swami and consequently on the
dt:ath of Shirolkar Swami Plaintiff was entitled to succeed to him as
Shank«rncharya of Sankeshwar J(arbir Mun and is also entitled to take
B po"t:ss1on of the prupenies of the Mutt."

A nmict: was issued by this Coun on 18.9.2000 having regard to che
said comemion of the Appellant wherein it was noticed:

"It is poime<l out by learned senior counsel appearing on behalf of
c th.: petitioner chat a specific clause in the Scheme of 1963 mentions
that th1:re is a pending litigation and that the person who would be
declared by the c1v1l court in the pending litigation would be the sole
trusc~e of the Trust and that there couid not be a second trus1ee like
the 1espondent. Once !CF.A. 143/82 was decided on 23.9 91 in fovour
1) oi lht: plaimiti in the suit by a Division !:lench of the Karnacaka High
Coun allowing tnt: appeal ot the plaintiff, the responoent had to be
n;moved as a second crusiee.

It is, thtrefore, contended that m view of the said judgment there
cannot be anmht:r Sankaracharya for the Trust which is the subject
E ma111.r of tnis SLP and that the Petitioner is espousing the cause of
the Sanr1.ara1.. 11arya ot the plaintiff in that suit, inasmuch as being a
Sam;.aracharaya ht: would not pursue the maner in court.

II is also conkmh.:d mat the petitioner could not draw the attention
of hie Division Bench of the High Court to the relevant clause in the
F Scnt:rm: ihuugh a copy of the said judgment of the Karnatdka High
Coun was pan of me record before the Bombay High Court. Issue
nouce."

We may 1101.ce that me contention that both the Peeths are in effect and
su.is.a11u: tm: br:mcni.;s ot me same entity was negatived by the High Court
(j sta.mg:

·· ... I ne cont.,nuun has to be statt:d merely for the purpose of being
r~,'-''"''"a sm<.e tt1e1c 1s a categoric finding that the Karveer 1 rust is a
sepo.rnce1y regis•<:n:d 'I rust under the l:lornbay Purlic Trust Act, bearing
kxg1strat1un no. A-1391 (Kulhapur). It i5 brought to our notice that
H ll1c: aifairs or me ~anKt:shwar Trust art: the subject matter of some
PANDIT VASUOEV VY AS (DEAD) THROUGH LRS. '·BOARD OF MGMT. S.SJ.S. PEETH {SINHA.!.] 279

pending litigation in the Kamataka High Court, at Bangalore. In the A
first place, those proceedings are not produced for our perusal.
Secondly, assuming that there is any controversy about the
appointment of the trustee, at Sankeshwar, the Sankeshwar Trust
bears a separate Registration Number viz., A-3059 (Be!gaum). Thirdly,
there is no challenge to the factum of the registration of the Karveer B
Trust as a separate legal entity in Maharashtra under Registration No.
A-1391_ (Kolhapur). Fourthly, clause 5 of the Scheme of the Karveer
Math specifically contemplates that the presiding Swami at the Karveer
Trust shall be the sole trustee of the Trust."

Mr. Srivastava, learned counsel appearing on behalf of the Appellant, C
would submit that the High Court committed an error of record in holding that
the proceedings before the Karnataka High Court had not been produced as
the judgment of the Karnataka High Court formed part of the records. A
further error of record, according to Mr. Srivastava, has been committed by
the Division Bench of the High Court insofar as clause 5 of the Scheme of
the Karveer Peeth which specifically contemplates that the presiding Swami D
at the Karveer Peeth shall be the sole trustee of the Trust, has not been
considered.

Mr. Chinmoy Khaladkar, learned counsel appearing on behalf of the
Respondents, on the other hand, submitted that having regard to the fact that
both the Peeths are separately registered, they cannot be considered to be E
branches of the same legal entity.

A contention has specifically been raised before us that apart from the
aforementioned litigation culminating in the Regular First Appeal No. 143 of
1982 before the High Court of Karnataka at Bangalore, no other litigation was F
pending. The Appellant contended that the litigation involving the question
as to who would be appointed as a trustee was pending before the Karnataka
High Court. According to the Respondent, however, no litigation was pending
at any point of time before the courts at Karnataka as regards entitlement of
a person to be appointed as a sole-trustee in respect of Sankeshwar Peeth.
G
Having heard the learned counsel for the parties, we are of the opinion
that it is not necessary for us to go into the aforementioned question in detail,
as the principal question before us is as to who should be appointed as a
sole trustee of the Karveer Peeth.

It may or may not be that both the Peeths were branches of the single H
280 SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A entity but the question arising herein would have to be considered as to who
could be appointed as to the sole trustee of the Karveer Peeth. For the said
purpose, we may notice Clause 5 of the Trust Deed which is as under:

"5. The presiding swami Shri Narasimha Krishna Bharati Guru Vidya
Shankar Barati Swami Jagadguru Shri Shankaracharya Peeth, Karveer
B is and shall be the sole trustee of the said trust subject to the decision
of the court in pending matters in which case the person decided by
the court as a trust shall be the trustee."

The question as to whether both the Peeths are branches of a common
entity may also have to be determined having regard to Clause 5 of the
C Scheme of Trust framed in the year 1963. We, however, refrain ourselves from
going into the said question and in particular the history thereof, as we are
of the opinion that the High Court did not address itself as regards the import ..
of Clause 5 of the Trust Deed.

D The question as regards appointment of a sole trustee is a matter of
great importance having regard to the provisions of the Bombay Public Trust
Act. The Charity Commissioner and consequently the appellate courts should
have made all endeavours to give effect to the desire of the founding trustees,
if the said provision is applicable. It is in that view of the matter, we are of
the opinion that the heirs and legal representative of original applicant may
E be permitted to step into his shoes. We, however, do not intend to put our
final seal in this regard and the said question may be raised before the High
Court.

We would, however, assume that the two Peeths were separately
registered but, in terms of the trust deed, there cannot be any doubt whatsoever
F that Clause 5 of the Scheme was relevant for the purpose of determination
of the question as regards the appointment of the sole trustee. The said
question was of great relevance, even if it be held that the two Peeths were
registered separately and, thus, were two separate entities in the eyes of law.
It has not been disputed that the said judgment of the Kamataka High Court
G formed part of the record before the courts below. Its relevance for the
purpose of interpreting Clause 5 of the Scheme cannot be disputed. Whether
the said Clause fits in with the Scheme, as has been contended by the learned
counsel for the Respondent, is also required to be determined on the basis
of the materials on record.

H We, therefore. are of the opinion that the matter should be directed to
PANDIT VASUDEV VYAS (DEAD) TIIROUGH LRS. '· BOARD OF MGMT. S.S.J.S. PEETil [SINHA, J.] 28 J

be considered afresh by -the Division Bench of the High Court. We direct A
accordingly.

The learned counsel for the parties, however, state that Erande Swami
is now aged about 92 years. The Second Respondent is also aged person
about 80 years and, thus, the controversy shou Id be put to an end as early
as possible. We agree With .the learned counsel. We would, therefore, request B
the High Court to consider the desirability of disposing of the matter, as
expeditiously as possible and preferably within a period of three months from
the date of communication of this order.

The judgment of the High Court is set aside. The appeal is allowed. The
matter is remitted to the High Court with the aforementioned directions. C
However, -in the facts and circumstances of this case, there shall be no order
as to costs,

D.G. Appeal allowed.