http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 22  

CASE NO.: Appeal (civil)  9419 of 2003

PETITIONER: Church of North of India

RESPONDENT: Lavajibhai Ratanjibhai & Ors.

DATE OF JUDGMENT: 03/05/2005

BENCH: B.P. Singh & S.B. Sinha

JUDGMENT: J U D G M E N T

With  I.A. Nos. 5 to 10 of 2005 (Application for impleading party)

S.B. SINHA,  J :

INTRODUCTION

       The extent of bar of jurisdiction of Civil Court under Section 80 of the  Bombay Public Trusts Act, 1950 (hereinafter referred to as ’the BPT Act’) is  the question involved in this appeal which arises out of a judgment and order  dated 21.03.2003 passed by the High Court of Gujarat at Ahmedabad in S.A.  No.303 of 1986.

        BACKGROUND FACT:

       The basic fact of the matter is not much in dispute.   

       In or about 1895, some American Missionaries established a religious  institution (Church) at Valsad for propagation of protestant faith of Christian  religion and to establish and manage the churches  for the people professing  that faith.  The object of the ’Brethren Church’ was to propagate the work of  the church of the brethren in western India in order to reveal Christ by  means of evangelistic, educational, medical, literary, industrial school, social  and charitable activities leading to the establishment of the kingdom of God.    A Continuation Committee is said to have been appointed in the year 1930  by the representatives of the Brethren Church  and other churches in a  Round Table Conference held in New Delhi with a view to consider the  modalities and other details for amalgamation of churches.  The Committee  is said to have worked out a broad basis for the unification of churches  which was accepted by the participant churches whereupon a new committee  came into being in the year 1951.  The First District Church of the Brethren  in India  (Brethren Church) was registered as a religious society under the  Societies Registration Act, 1860 bearing Registration No.1202/44; the object  whereof was to promote the work of the church of the brethren in Western  India with the same object wherefor the church was established.  Another  Round Table Conference is said to have been held in the year 1951 at New  Delhi resulting in appointment of a new committee known as ’Negotiating  Committee’ in order to continue deliberations for the union of churches; five  other associations were included in the Committee, namely, The Council of  the Baptist Churches in North India, The Church of India, Pakistan, Burma  and Ceylon, The Methodist Church (British and Australian Conference),   The Methodist Church in Southern Asia and The United Church o Northern

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 22  

India.  The Brethren Church (First District Church of the Brethren) was  registered as a public trust in Gujarat bearing No.E-643, Bharuch in terms of  the BPT Act.  The Negotiating Committee made its final recommendations  which came to be known as the ’4th  Plan of the Union’ which was published  in a book entitled ’Plan of Church  Union in North India and Pakistan’; the  principal recommendation of the Committee being that all the six uniting  churches should be dissolved and united to become one church to be known  as "The Church of Northern India" (hereinafter referred to as "the CNI)  which should be the legal continuation and successor of the united churches  and all the properties, assets, obligations etc. thereof  would vest in or  devolve on CNI.  The booklet of  the 4th Plan is said to have been circulated  to the governing bodies of the uniting churches with a view to enable them  to deliberate thereover and to take appropriate decision in that behalf.   

       On or about 17.02.1970, a Resolution bearing No.70/08 is said  to  have been passed by the majority of members for effecting the dissolution as  a society under the Societies Registration Act, 1860.  The Negotiating  Committee thereafter on or about 29.11.1970 took a decision to formally  inaugurate the CNI at Nagpur.  The Brethren Church allegedly placed the  said Resolution No.70/08 at the altar wherein it was explicitly affirmed that  the CNI shall be deemed to be the legal continuation and successor of the  brethren church and the rights, titles, claims, estates and the interests of the  church together with its privileges and obligations shall vest in the CNI as its  legal heir on or from the date of inauguration.  The Church of North India  Trust Association was registered as a company under the Companies Act,  1956, in the year 1976.  The original defendant Nos. 1 to 4 who were said to  be initially part of the CNI and were parties to the resolution dated  17.02.1970 raised a contention that the Brethren Church continued to exist.   They started obstructing the functioning of the CNI, and in particular the  worship in churches, and asserted that the First Brethren Church had not  been dissolved and continued and they represented the same.    

       The original plaintiffs, namely, Ambelal Okarial Patel, Shantilal  Lakshmichand Purani, Bishop T.L. Christachari and Samuel Nagarji Bhagat  (since deceased) said to be the former office bearers of the Brethren Church  filed a suit in the Court of the Civil Judge, Senior Division, Bharuch, marked  as Civil Suit No.72 of 1979.  

       The CNI was impleaded as defendant No. 5 therein, although no relief  thereagainst was claimed contending that it was a necessary and/or a proper  party.  The Brethren Church were not made parties in the said suit.  It is  stated at the Bar that the said churches were impleaded at a later stage of the  proceedings but the said applications were later on dismissed.  The original  defendant No. 4 in his written statement filed in the said suit took a  categorical stand that there had been no dissolution of the Brethren Church  and their separate entity was not lost.  According to the said defendant they  were temporarily suspended till it was revived again and, thus, they were  entitled to work for and on behalf of the Brethren Church.  In the said  proceedings, certain interim orders were passed wherewith we are not  concerned.  However, with a view to complete the narration of facts, we may  notice that the CNI filed an application for its registration before the Charity  Commissioner in terms of the provisions of the BPT Act, which was granted  by an order dated 12.5.1980 with effect from 19.11.1971.  The CNI  thereafter filed a change report before the Charity Commissioner on or about  15.1.1981.  Admittedly, the said application has not yet been disposed of.                  While things stood thus, the Charity Commissioner was impleaded as  a party in the suit and in its written statement a plea was raised that the  jurisdiction of the Civil Court was barred in terms of Section 80 of the BPT  Act contending :

"4.  In  view of  provisions of Bombay Public Trusts Act,  1950.  The question whether or not a trust of particular  property is the property of such trust,  is to be decided

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 22  

exclusively by the Deputy or Assistant Charity  Commissioner appointed under the Act, the Assistant  Charity of the Brethren "as a public trust at No. E-643  (Bharuch) under the Bombay Public Trusts ct, 1950.  The  decision of the Assistant Charity Commissioner, Bharuch  unless set aside as provided under the Act, is final and  conclusive.  It is further submitted that the jurisdiction of  the Hon’ble Court is also barred under Section 80 of the  Act.  The plaintiffs are, therefore, not entitled to the  reliefs as prayed for by them.  The suit, deserves to be  dismissed."

PROCEEDINGS:

       The learned Civil Judge by judgment and decree dated 31.3.1984  decreed the suit; findings in support whereof would be noticed a little later.  

       An appeal was preferred thereagainst on or about 4.5.1984 by the  original defendants in the Court of the District Judge, Bharuch, which was  marked as RCA No.72 of 1984.  By judgment and decree dated 11.8.1986,  the said appeal was allowed whereagainst the CNI (Appellant herein)  preferred  a Second Appeal before the Gujarat High Court, which was  marked as Second Appeal No.303 of 1986.  On or about 29.3.2002, the  Charity Commissioner is said to have filed a detailed affidavit in support of  the Change Report No.665/81.  By reason of the impugned judgment and  order dated  21.3.2003, the said Second Appeal was dismissed.

       Hence the Appellant is before us.

CONTENTIONS:

       Mr. C.A. Sundaram, the learned Senior Counsel appearing on behalf  of the Appellant would submit that the Court of First Appeal as also the  High Court committed a manifest error in passing the impugned judgments  insofar they failed to take into consideration the scope and purport of the  suit.  According to the learned counsel, the learned Trial Judge had rightly  decreed the suit having taken into consideration the fact that the matter  relating to formation of churches and their merger in the name of  the CNI  was not a matter which could be determined by the Charity Commissioner in  exercise of his powers under the BPT Act.  The learned counsel would  contend that the society and the trust are two separate entities.  The Society  being not a juristic person although cannot own any property but manage the  affairs of the trust which would be the owner of the property.  According to  the learned counsel the Court of First Appeal and the High Court  misdirected themselves in passing the impugned judgments insofar as they  proceeded on the premise that having regard to the fact that properties  belonging to the Brethren Church were registered in the books maintained  by the Charity Commissioner under Section 17 of the Act, any church  affected thereby would fall within his jurisdiction and consequently the  dissolution of the society and managing of the churches and consequently  their merger would also come within the purview of the provisions of the  BPT Act.   

       Mr. Sundaram would submit that a society registered under the  Societies Registration Act, 1860 and a trust  registered under the BPT Act  are two different entities.  Whereas the activities and the dealings of the  latter may fall within the exclusive jurisdiction of the authorities specified  under the BPT Act, the activities of the society would be governed by the  Societies Registration Act, 1860.  The Civil Court, therefore,  according to  Mr. Sundaram, had the requisite jurisdiction to deal with the question as to  whether the resolution adopted in the year 1970 resulting in dissolution and  the merger of the churches was valid.  Such a dispute, Mr. Sundaram would  argue, is  beyond the jurisdiction of the Charity Commissioner.  The learned  counsel would urge that once the dissolution of the Brethren Church and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 22  

consequent merger in the Appellant is held to be valid, in terms of the  Section 26 of the BPT Act, the Charity Commissioner is enjoined with a   duty to make necessary changes in the books maintained under Section 17 of  the BPT Act. Sections 31,  50, 51, 79 and 80 of the BPT Act, according to  Mr. Sundaram, do not clothe the Charity Commissioner or any other  authority thereunder to determine a question as regard the validity of a  resolution of a society and/or its merger.   

       Mr. K. Ramamoorthy, the learned Senior Counsel appearing on behalf  the Brethren Church supporting the Appellant would contend that  administration of a religious property must be understood in its proper  context.  According to the learned counsel, administration of a property  belonging to trust may not have anything to do with the actual possession or  dealing with the administration thereof.                    The learned counsel would draw our attention to the judgments in  State of Madras vs. Kunnakudi Melamatam and Another [AIR 1965 SC  1570]; Chiranjilal Shrilal Goenka (deceased) Through L.Rs. vs. Jasjit Singh  and Others [(1993) 2 SCC 507] and Rajasthan State Road Transport  Corporation and Another vs. Krishna Kant and Others  [(1995) 5 SCC 75]  and contended that in various situations, the Civil Court and the Probate  Court alone have been held to have exclusive jurisdiction and not the  Charity Commissioner.  According to the learned counsel, the Charity  Commissioner being a creature of statute must exercise its jurisdiction  within the four-corners thereof and the matters which do not come within the  purview of  the BPT Act must necessarily be left to the jurisdiction of the  Civil Court.  According to the learned counsel the provisions of Section 50  of the BPT Act do not show that requirements contained therein must be  carried out even in a case where the Charity Commissioner may not have  any jurisdiction.   

       As regard interpretation of Section 31 of the BPT Act, the learned  counsel would contend that the provision thereof  bars hearing and decision  in the suit and not the institution thereof.  Although in the year 1979, the   Appellant herein was not registered but as before hearing of the suit was  taken up, it became registered in the year 1980, the Civil Judge had the  jurisdiction to hear and decide the said suit even it involved dealing with the  trust property.   

       Mr. Huzefa Ahmadi, the learned counsel appearing on behalf of the  contesting Respondents, on the other hand, would submit that for the  purpose of determining the question as to whether the suit before the Civil  Court was maintainable or not, the averments made in the plaint must be  read as a whole and substratum  thereof must be noticed.  As adjudication  was sought for in relation to administration and possession of the properties  of a trust; the suit was not maintainable.  It was pointed out that the true  identity of the Appellant had not been disclosed, i.e., as to whether it is a  trust registered under the BPT Act, or a company registered under the Indian  Companies Act, 1956.   

       The learned counsel submitted that although a distinction is sought to  be made between the activities of a society which runs the administration of  a trust and a trust which owns the property, no such distinction was made in  the proceedings before the courts below.  Drawing our attention to certain  grounds taken in the Special Leave Petition, Mr. Ahmadi would urge, that in  fact the finding of the High Court to the effect that the society and the trust  are two separate entities had been questioned.  Taking us through the plaint,  the learned counsel would contend that plaintiffs as also the learned Trial  Judge proceeded on the basis that the trust had ceased to exist and wherever  the expression "Brethren Church" has been used in the judgment, the learned  Trial Court referred to it as a trust and not as a society.   

Mr. Ahmadi would contend that the learned Trial Court proceeded on  the basis that there existed inconsistencies between the provisions of the  Societies Registration Act which is a Parliamentary Act and the BPT Act,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 22  

which is a State Act and relying on or on the basis of clause (2) of Article  254 of the Constitution of India, it came to the decision that the former shall  prevail over the latter.  It is in that context, issues were decided and not on  the basis that the society and the trust are two separate entities.  We were  taken through the relevant paragraphs of the BPT Act and in particular  Sections 2(10), 2(13), 13(b), 17, 18, 19, 20, 21, 22,  31, 36, 50, 51, 74, 79  and 80 by Mr. Ahmadi to show that the said provisions clearly indicate that  the BPT Act is a self-contained code and deals with all questions governing  a trust and the properties held by it.  It was urged that the provisions of  Section 26 thereof must be read in that context.  The learned counsel would  submit that the provisions of Section 26 of the BPT Act, in the facts and  circumstances of the case, would have  no application where a suit was  expressly barred which regulates management of a trust, as the BPT Act   created a specialized machinery to determine the issues governing the same.

Drawing our attention to the prayer (b) of the plaint, Mr. Ahmadi  would argue that the same would squarely fall within the purview of  Sections 50 and 51 of the BPT Act and, thus, would be barred as no  permission of the Chief Commissioner was sought for and obtained.   

The learned counsel would contend that the plea that the suit related to  the affairs of the society is merely a ruse or a camouflage.  It was argued that  the society itself is a religious trust and, thus, both stand on the same footing  and in that view of the matter, the suit will not be maintainable.   

The learned counsel would further submit that a finding of fact had  been arrived at by the Court of Appeal that the Brethren Church had not  ceased to exist, this Court should not interfere therewith.   

Mr. M.N. Shroff, the learned  counsel appearing on behalf of the  Charity Commissioner, adopted the submission of Mr. Ahmadi and would  further contend that the substantial issue before the learned Civil Judge was  as to whether the Brethren Church which was registered as trust had ceased  to exist and/or stood dissolved or not.

SOCIETIES REGISTRATION ACT, 1860

The Societies Registration Act was enacted, as it was found expedient  that provisions should be made for improving the legal condition of societies  established for the promotion of literature, science, or the fine arts, or for the  diffusion of useful knowledge, the diffusion of political education and for  charitable purposes.  

Section 2 of the Societies Registration Act provides for memorandum  of association which, inter alia, must contain the name of the society and the  objects of the society.  A society which is formed for charitable purpose may  also carry on its activities. The words ’charitable purposes’ includes  religious purposes.  Section 4 provides for annual list of managing body to  be filed stating names, addresses and occupations of the governors, council,  directors, committee, or other governing body then entrusted with the  management of the affairs of the society.                           In terms of Section 5, the property of a society both movable and  immovable, if not vested in the trustees, would be deemed to have vested,  for the time being, in the governing body of such society.  A suit by or  against the society is to be filed in the name of the President, Chairman or  Principal Secretary or trustees of such society as may be determined by the  rules and regulations thereof.   

       Section 13 of Societies Registration Act provides for dissolution of  societies and adjustment of their affairs.  It reads as under:

"13. Provision for dissolution of societies and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 22  

adjustment of their affairs \026 Any number not less  than three-fifths of the members of any society  may determine that it shall be dissolved, and  thereupon it shall be dissolved forthwith, or at the  time then agreed upon, and all necessary steps  shall be taken for the disposal and settlement of the  property of the society, its claims and liabilities  according to the rules of the said society applicable  thereto, if any, and if not, then as the governing  body shall find expedient, provided that, in the  event of any dispute arising among the said  governing body or the members of the society, the  adjustment of its affairs shall be referred to the  principal Court of original civil jurisdiction of the  district in which the chief building of the society is  situate; and the Court shall make such order in the  matter as it shall deem requisite: Assent required \026 Provided that no society shall be  dissolved unless three-fifths of the members shall  have expressed a wish for such dissolution by their  votes delivered in person or by proxy, at a general  meeting convened for the purpose: Government consent \026 Provided that whenever any  Government is a member of, or a contributor to, or  otherwise interested in any society registered under  this Act, such society shall not be dissolved  without the consent of the Government of the State  of registration."

BOMBAY PUBLIC TRUSTS ACT

       The BPT Act, on the other hand, was enacted to regulate and to make  better provision for the administration of public religious and charitable  trusts in the State of Bombay.   

       Section 2 is the interpretation clause.  Section 2 (10) defines "person  having interest" to include in the case of a society registered under the  Societies Registration Act, 1860 any member of such society.  Section 2(13)  defines "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 endowment and a  society formed either for a religious or charitable purpose or for both and  registered under the Societies Registration Act, 1860.  A "trustee" has been  defined to mean a person in whom either alone or in association with other  persons, the trust property is vested and includes a manager.   

       Section 3 provides for establishment of the office of the Charity  Commissioner for the purpose of superintending the administration as also  carrying out the provisions of the Act subject to such general or special  orders as the State Government may impose.  Section 3A provides for the  appointment of Joint Charity Commissioners.  Section 5 provides for the  appointment of Deputy and Assistant Charity Commissioners.   

       Section 9 occurring in Chapter III of the Act defines charitable  purposes inter alia to include relief of poverty or distress, education, medical  relief and the advancement of any other object of general public utility but  would not include a purpose which relates exclusively to sports, or  exclusively to religious teaching or worship.  Section 10 contains a non- obstante clause in terms whereof a public trust shall not be void only on the  ground that the persons or objects for the benefit of whom or which it is  created are unascertained or unascertainable.  Section 11 provides that the  public trust created for purposes some of which are charitable or religious  and some of which are not shall be void in respect to the charitable or  religious purpose only on the ground that it is void with respect to the non- charitable or non-religious purpose.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 22  

       Section 13 reads as under:

"13. If any public trust is created for a specific  object of a charitable or religious nature or for the  benefit of a society or institution constituted for a  charitable or religious purpose, such trust shall not  be deemed to be void only on the ground \026  (a)     that the performance of the specific object  for which the trust was created has become  impossible or impracticable, or (b)     that the society or institution does not exist  or has ceased to exist, notwithstanding the fact that  there was no intent for the appropriation of the  trust property for a general charitable or religious  purpose."

       Chapter IV of the Act provides for registration of public trusts.  The  said Chapter makes the registration of public trust compulsory.  Section 17  ordains keeping and maintenance of such books, indices and other registers  as may be prescribed in every Public Trusts Registration Office or Joint  Public Trusts Registration Office.  Such books, indices and registers would  contain such particulars as may be prescribed.  Section 18 imposes a duty  upon the trustee of a public trust to make an application for the registration  of the public trust in writing and would contain such particulars as  mentioned in Sub-section (5) of Section 18.  Clause (iii) of Sub-section (5)  of Section 18 provides that the list of the movable and immovable trust  property and such descriptions and particulars as may be sufficient for the  identification thereof shall be stated as and when such application for  registration of the trust is filed.  Section 19 provides for an Inquiry for  registration for the purpose of ascertaining:

"(i)    whether a trust exists and whether such  trust is a public trust, (ii)    whether any property is the property of  such trust, (iii)   whether the whole or any substantial  portion of the subject-matter of the trust is situate  within his jurisdiction, (iv)    the names and addresses of the trustees and  manager of such trust, (v)     the mode of succession to the office of the  trustee of such trust, (vi)    the origin, nature and object of such trust, (vii)   the amount of gross average annual  income and expenditure of such trust, and (viii)  any other particulars as may be prescribed  under sub-section (5) of section 18."

       Section 20 provides for recording of the findings by the Deputy or  Assistant Charity Commissioner on completion of an inquiry provided for  under Section 19.  On completion of such an inquiry in accordance with the  findings, the Deputy or Assistant Charity Commissioner is enjoined with the  duty to make entry in such register in terms of Section 21 of the Act; Sub- section (2) whereof provides that such entries shall be final and conclusive.   Section 22 provides for the change which may occur in any of the entries  recorded in the register kept under Section 17 to make an appropriate  application within 90 days from the date of the occurrence of such change.   Sub-section (1A) of Section 22 reads thus:

"(1A) Where the change to be reported under sub- section (1) relates to any immovable property, the  trustee shall, alongwith the report, furnish a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 22  

memorandum in the prescribed form containing  the particulars (including the name and description  of the public trust) relating to any change in the  immovable property of such public trust, for  forwarding it to the sub-registrar referred to in sub- section (7) of section 18."

       Sub-section (2) of Section 22 empowers a Deputy or Assistant Charity  Commissioner to hold an inquiry for the purpose of verifying the correctness  of the entries in the register kept under Section 17 or ascertaining whether  any change has occurred in any of the particulars recorded therein.  In the  event, a change is found to have occurred in any of the entries recorded in  the register kept under Section 17, the Deputy or Assistant Charity  Commissioner is required to record a finding with the reasons therefor to  that effect.  Such an order is appealable to the Charity Commissioner.  By  reason of changes which have been found to have occurred, the entries in the  register are required to be amended.  Such amendment on the occurrence of  change is final and conclusive.  Section 22A empowers the Deputy or  Assistant Charity Commissioner to hold further inquiry.  Section 30 creates  a legal fiction as regard notice on the part of a person acquiring immovable  property of the relevant particulars relating to such trust entered in the  register in relation to any property belonging to a public trust.  Section 31  creates a bar to hear or decide suits in the following terms:

"31(1) No suit to enforce a right on behalf of a  public trust which has not been registered under  this Act shall be heard or decided in any Court.

(2) The provisions of sub-section (1) shall apply to  a claim of set off or other proceeding to enforce a  right on behalf of such public trust."

       Chapter V provides for the Accounts and Audit.  Section 36 bars  alienation of immovable property of public trust without the previous  sanction of the Charity Commissioner.  In the event, such previous sanction  is not granted, an appeal thereagainst is maintainable before the Gujarat  Revenue Tribunal.

       Chapter VI provides for the control of the charitable or religious trusts  and for the said purpose in terms of Section 37 the Charity Commissioner is  empowered to:

"(a) to enter on and inspect or cause to be entered  on and inspected any property  belonging to a  public trust; (b) to call for or inspect any extract from any  proceedings of the trustees of any public trust and  any books of accounts or documents in the  possession, or under the control, of the trustees or  any person on behalf of the trustees; (c) to call for any return, statement, account or  report which he may think fit from the trustees or  any person connected with a public trust;"

       Sub-section (2) of Section 37 enjoins a duty upon every trustee to  afford all reasonable facilities to any officer exercising any of the powers  under sub-section (1).  Section 41A empowers the Charity Commissioner to  issue directions to the trustee and other persons to ensure that trust is  properly administered and the income thereof is properly accounted for or  duly appropriated and applied to the objects and for the purposes of the trust.

       Chapter VII provides for the functions and powers of Charity  Commissioner other than those referred to in the other Chapters.  Section 47  provides for the appointment of a new trustee when one or the other  conditions specified therein is satisfied.  Section 50 provides for suits

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 22  

relating to public trusts which reads as under:

"50. In any case \026  (i) where it is alleged that there is a breach of a  public trust, (ii) where a direction is required to recover  possession of a property belonging to a public trust  or the proceeds thereof or for an account of such  property or proceeds from any person including a  person holding adversely to the public trust, or (iii) where the direction of the court is deemed  necessary for the administration of any public  trust,

the Charity Commissioner after making such  enquiry as he thinks necessary or two or more  persons having an interest in the trust and having  obtained the consent in writing of the Charity  Commissioner as provided in section 51 may  institute a suit whether contentions or not in the  Court within the local limits of whose jurisdiction  the whole or part of the subject-matter of the trust  is situate, to obtain a decree for any of the  following reliefs \026  

(a)     an order for the recovery of the possession  of such property or proceeds thereof, (b)     the removal of any trustee or manager, (c)     the appointment of a new trustee or  manager, (cc)    vesting any property in a trustee, (d)     a direction for taking accounts and making  certain inquiries, (e)     a declaration as to what proportion of the  trust property or of the interest therein shall be  allocated to any particular object of the trust, (f)     a direction authorizing the whole or any part  of the trust property to be let, sold, mortgaged or  exchanged, (g)     the settlement of a scheme or variations or  alterations in a scheme already settled, or (h)     granting such further or other relief as the  nature of the case may require;

Provided that no suit claiming any of the reliefs  specified in this section shall be instituted in  respect of any public trust except in conformity  with the provisions thereof:

Provided further that the Charity Commissioner  may, instead of instituting a suit, make an  application to the Court for a variation or alteration  in a scheme already settled."

       Sections 51, 79 and 80 read as under:

"51(1) If the persons having an interest in any  public trust intend to file a suit of the nature  specified in section 50, they shall apply to the  Charity Commissioner in writing for his consent.   The Charity Commissioner, after hearing the  parties and after making such inquiry as he thinks  fit, may within a period of six months from the  date on which the application is made, grant or  refuse his consent to the institution of such suit.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 22  

The order of the Charity Commissioner refusing  his consent shall be in writing and shall state the  reasons for the refusal.

(2)     If the Charity Commissioner refuses his  consent to the institution of the suit under sub- section (1) the persons applying for such consent  may file an appeal to the Bombay Revenue  Tribunal constituted under the Bombay Revenue  Tribunal act, 1939, in the manner provided by this  Act.

(3)     In every suit filed by persons having interest  in any trust under section 50, the Charity  Commissioner shall be a necessary party.

(4)     Subject to the decision of the Bombay  Revenue Tribunal in appeal under section 71, the  decision of the Charity Commissioner under sub- section (1) shall be final and conclusive."

"79. (1) Any question whether or not a trust exists  and such trust is a public trust or particular  property is the property of such trust, shall be  decided by the Deputy or Assistant Charity  Commissioner or the Charity Commissioner in  appeal as provided by this Act.

(2) The decision of the Deputy or Assistant Charity  Commissioner or the Charity Commissioner in  appeal, as the case may be, shall, unless set aside  by the decision of the court on application or of the  High Court in appeal, be final and conclusive."

"80. Save as expressly provided in this Act, no  civil court shall have jurisdiction to decide or deal  with any question which is by or under this Act to  be decided or dealt with by any officer or authority  under this Act, or in respect of which the decision  or order of such officer or authority has been made  final and conclusive."

       Having noticed the statutory scheme of the said Act, we may consider  the provisions of Section 26 thereof which is relevant for the purpose of this  case, which is as under:

"26. Any Court of competent jurisdiction deciding  any question relating to any public trust which by  or under the provisions of this Act is not expressly  or impliedly barred from deciding shall cause copy  of such decision to be sent to the Charity  Commissioner and the Charity Commissioner shall  cause the entries in the register kept under section  17 to be made or amended in regard to such public  trust in accordance with such decision.  The  amendments so made shall not be altered except in  cases where such decision has been varied in  appeal or revision by a court of competent  jurisdiction.  Subject to such alterations, the  amendments made shall be final and conclusive."

JURISDICTION OF CIVIL COURT \026 Principles for determination:

       The question as regard ouster of a jurisdiction of a Civil Court must

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 22  

be construed having regard to the Scheme of the Act as also the object and  purport it seeks to achieve.  The law in this regard is no longer res integra.

       A plea of bar to jurisdiction of a civil court must be considered having  regard to the contentions raised in the plaint.  For the said purpose,  averments disclosing cause of action and the reliefs sought for therein must  be considered in their entirety.  The Court may not be justified in  determining the question, one way or the other, only having regard to the  reliefs claimed de’hors the factual averments made in the plaint.  The rules  of pleadings postulate that a plaint must contain material facts.  When the  plaint read as a whole does not disclose material facts giving rise to a cause  of action which can be entertained by a civil court, it may be rejected in  terms of Order 7, Rule 11 of the Code of Civil Procedure.

       In Dhulabhai and Others vs. The State of Madhya Pradesh and  Another [(1968) 3 SCR662], Hidayatullah, CJ summarized the following  principles relating to the exclusion of jurisdiction of civil courts :          (a)     Where the statute gives a finality to the orders of the special tribunals,  the civil court’s jurisdiction must be held to be excluded if there is  adequate remedy to do what the civil courts would normally do in a  suit.  Such provision, however, does not exclude those cases where the  provisions of the particular Act have not been complied with or the  statutory tribunals has not acted in conformity with the fundamental  principles of judicial procedure. (b)     Where there is an express bar of the jurisdiction of the court, an  examination of the scheme of the particular Act to find the adequacy  or the sufficiency of the remedies provided may be relevant but is not  decisive to sustain the jurisdiction of the Civil Court.  Where there is no express exclusion, the examination of the  remedies and the scheme of the particular Act to find out the  intendment becomes necessary and the result of the inquiry may be  decisive.  In the latter case, it is necessary to see if the statute creates a  special right or a liability and provides for the determination of the  right or liability and further lays down that all questions about the said  right and liability shall be determined by the tribunals so constituted,  and whether remedies normally associated with actions in Civil  Courts are prescribed by the said statute or not. (c)     Challenge to the provisions of the particular Act as ultra vires cannot  be brought before tribunals constituted under that Act.  Even the High  Court cannot go into that question on a revision or reference from the  decision of the tribunals. (d)     When the provision is already declared unconstitutional or the  constitutionality of any provision is to be challenged, a suit is open.  A  writ of certiorari may include a direction for refund if the claim is  clearly within the time prescribed by the Limitation Act but it is not a  compulsory remedy to replace a suit. (e)     Where the particular Act contains no machinery for refund of tax  collected in excess of constitutional limits or illegally collected, a suit  lies.  (f)     Questions of the correctness of the assessment, apart from its  constitutionality, are for the decision of the authorities and a civil suit  does not lie if the orders of the authorities are declared to be final or  there is an express prohibition in the particular Act.  In either case, the  scheme of the particular Act must be examined because it is a relevant  enquiry. (g)     An exclusion  of the jurisdiction of the civil court is not readily to be  inferred unless the conditions above set down apply. [See also Rajasthan State Road Transport Corporation and Another vs.  Krishna Kant and Others \026 (1995) 5 SCC 75,  Dwarka Prasad Agarwal vs.  Ramesh Chand Agarwal  - (2003) 6 SCC 220, Sahebgouda vs. Ogeppa  (2003) 6 SCC 151, Dhruv Green Field Ltd. vs. Hukam Singh (2002) 6 SCC  416 and Swamy Atmananda & Ors. Vs. Sri Ramakrishna Tapovanam & Ors,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 22  

[2005 (4) SCALE 116].

       The same, however, would not mean that in a given case if the court  has the jurisdiction to determine a part of the relief claimed, it will not  confine itself thereto and reject the plaint in its entirety. For the purpose of  determination of question as to whether the suit is barred, the averments  made in the plaint are germane. [See Sopan Sukhdeo Sable and Others Vs.  Assistant Charity Commissioner and Others, (2004) 3 SCC 137]

ANALYSIS OF BPT ACT:

       The BPT Act is a special law.  It confers jurisdiction upon the Charity  Commissioner and other authorities named therein.  The statute has been  enacted by the Parliament in public interest to safeguard the properties  vested in the trusts as also control and management thereof so that the trust  property may not be squandered or the object or purport for which a public  trust is created may not be defeated by the persons having control thereover.   A society may be created either for charitable or religious purposes as also  for other purposes.  A society registered under the Societies Registration Act  is not a juristic person.  It cannot own any property.  The properties  belonging to a society admittedly vest in the trustees.  In terms of Section  2(13) of the BPT Act, a society is also a charitable trust.  Both the Acts are  regulatory in nature.  The object and purport of both the Acts are clear and  the provisions thereof do not contain any obscurity.  It has not been argued  before us, as was done before the learned Trial Judge, that there exists any  inconsistency between the provisions of the Societies Registration Act which  is a Parliamentary Act, on the one hand, and the BPT Act, which is a State  Act, on the other.  The core question which had been raised before us is as to  whether the Society managing or governing the trust having a separate  entity; in relation to its affairs the jurisdiction of the civil court is barred.   

ANALYSIS OF THE AVERMENTS MADE IN THE PLAINT

       With a view to determine the said question it is necessary to consider  the averments made in the plaint.

       The Brethren Church has its history which has been traced in  paragraph 1 of the plaint.  Paragraph 2 speaks of registration of the church  under the Societies Registration Act in the year 1944 and registered under  BPT Act after the same came into force.   

       It has been averred that the resolution of the Brethren Church affirmed  that C.N.I. would be deemed to be legal continuation and successor of the  Brethren Church and rights, title, claims, estates and interest of this Church  together with its privileges and obligations shall, as from the date of  inauguration, vest in C.N.I. as its legal heir.  The Church, thus, ceased to  exist as separate entity both as a society and as a trust.  Although it is  contended that, as provided in the constitution of C.N.I., the Church of North  India Trust Association came to be registered as a company under the  provisions of the Companies Act in the year 1976 but if the vesting had  already taken place in C.N.I. as far back as in the year 1970, the question of  trust property vesting in a company would not arise.

       The records do not show that the said company had ever taken any  decision as regard control and management of the Trust and/ or had dealt  with the properties belonging to the Brethren Church.

       It is also not in dispute that local churches or congregations which  desired to function on the basis of the old constitution were at liberty to do

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 22  

so till the 3rd Ordinary Synod of C.N.I. which was to be held in 1977.

       According to the plaintiffs, most of the churches or congregations  under the Gujarat Diocesan Council implemented the said chapter.  The  church or congregation at Valsad although decided to adopt the said  constitution, but it is contended that in the intervening period the property  Committee (Property Trust Board) of the former Brethren Church continued  to manage the properties, estate, etc. of Valsad Church as an agent of and on  behalf of the Gujarat Diocesan Council.   

       The defendant Nos. 1 to 4 who were residents of Valsad and Navsari;  took exceptions to the decision of the Synod to terminate the interim period  with effect from 7th October, 1977 and held a meeting on 12th November,  1978.

       A resolution had been adopted by the said defendants along with  others asserting that their independent unit would hold all the movable and  immovable properties, deposit in a bank and cash in hand of the church in its  properties wherefor a special committee was constituted.           The defendant Nos. 2 to 4 are said to the members of the said  committee and defendant No. 1 claims to be the Pastor of the Brethren  Church.  Admittedly, a decision of the executive committee of the Gujarat  Diocesan Council taken by it at its meeting held on 11th November, 1978  was stated to be illegal by the defendant Nos. 1 to 4.  It is averred:

"The defendants Nos. 1 and 2 also claim to be the  Treasurer and Secretary respectively of the said  "Valsad Brethren Church".  These dissidents are  acting in the name of the former Brethren Church  and have been writing letters as office bearers of  former Brethren Church to the Valsad District  Co-operative Bank, the Ankleshwar Branch of  the Broach District Central Co-operative Bank  etc., asking them not to deal with the members of  the legally constituted Pastorate committee of  Ankleshwar and Valsad and asserting that they  are the only persons legally entitled to deal with  the financial affairs of the Ankleshwar and  Valsad Pastorates.  Besides, defendant No. 2,  styling as a secretary of Brethren Church has  complained to the authorities that the 20 local  Pastorates under the Gujarat Diocesan Council  do not function in the name of Brethren Church  and do not collect funds in the name of the  Brethren Church.  A similar complaint was made  by him to the Assistant Charity Commissioner  Broach who had the matter inquired into.  The  defendant No. 2, again, purporting to act as a  Secretary of the Valsad Brethren Church, wrote a  letter on 20th June, 1979 to the legally elected  Treasurer of the Ankleshwar church challenging  the latter’s authority to act as such Treasurer.   The defendant No. 3 and some of his associates  residing at Jalapore, Taluka Navsari, District  Valsad, have issued a statement dated 8th July,  1979 declaring their intention to sever all their  connections with C.N.I. and to function as an  independent unit with effect from 15th July, 1979  in the name of Brethren Church, Jalalpore.  By  the said statement, the members of the C.N.I. at  Jalalpore have been directed not to use or occupy  the church."

       The aforementioned action on the part of the defendant Nos. 1 to 4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 22  

and their associates was the subject matter of the suit.

       In the aforementioned context, the plaintiffs had questioned the  actions and/ or activities of the defendant Nos. 1 to 4 and other dissidents  insofar as they tend to prevent or hinder the plaintiffs and other members of  the Pastorate from acting under and in accordance with the said decisions  and resolutions of the Gujarat Diocesan Council and the constitution of  Synod violate and infringe the legal rights of these persons to do so and are  illegal.   

       The Appellant herein was joined as defendant No. 5 in the said suit,  although no relief had been claimed against the original defendant No. 5  who is the Appellant before us.  The status of the defendant No. 5 has not  been disclosed in the plaint.  The legal status of Church of North India has  not been disclosed in the plaint.

       It is accepted that the defendant No. 5 \026 Appellant has got itself  registered as a trust only in the year 1980.  It also stands admitted that a  change report has been filed by the Appellant before the Commissioner of  Charity in the year 1981.

       We have noticed hereinbefore that as regard the correctness or  otherwise of functioning of the congregation of Ankleshwar and Valsad had  been the subject matter of complaints before the authorities under the BPT  Act.

       One of the causes of action for instituting the suit is said to be  constitution of a special committee by the defendant Nos. 1 to 4; resolution  dated 12th November, 1978 was passed and the obstructions created by them  to the plaintiffs and other members of the Pastorates through the actions of  the Plaintiffs and other members of the Pastorates in the name of the former  Brethren Church.

       The plaintiffs made their position clear when they categorically stated  in paragraph 21 that the suit inter alia involved questions as to the rights of  property of the former Brethren Church.

       In the aforementioned premise, plaintiffs had prayed for the following  reliefs:

"(a) It may please be declared that the former First  District Church of Brethren has ceased to exist.

(b) It may please be declared that the Church of  North India is the legal continuation and successor  of the said First District Church of Brethren  together with the right, title, claim, interest in or  over its properties and the constitution, decisions  and resolutions of the Church of North India, its  Synod and Gujarat Diocesan Council are binding  on all the Pastorates on Gujarat which were  functioning as local Churches or congregations  under the First District Church of Brethren.

(c) The defendants No. 1 to 4 and their associates  may be restrained by a perpetual injunction from  acting in any manner contrary to the constitution,  decisions and resolutions of the church of North  India its Synod and Gujarat Diocesan Council and  from obstructing in any manner the plaintiffs and  other members/ office bearers of these pastorates  under the Church of North India in acting in  accordance with the said constitution, decisions  and resolutions and in their use, enjoyment and  possession of the Churches and their properties.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 22  

(d) The defendants No. 1 to 4 and their associates  may be restrained from acting in the name of the  First District Church of Brethren and from  collecting funds, donations, etc. in that name.

(e) The defendants Nos. 1 to 4 may be directed to  pay to the plaintiffs the costs of this suit."

DETERMINATION:

       The plaint nowhere suggests that the society and the trust had ever  been treated as two different entities.  No case has been made in the plaint to  the effect that the society as registered under the Societies Registration Act  plays any role or discharges any function which is not done by the trustees  of the trust.  It also does not appear from a perusal of the plaint that the  society and the trust comprises of different persons or for different functions  to perform.  In fact in paragraph 2 of the plaint it is accepted that the Church  which was registered as a society under the Societies Registration Act was a  public trust as defined under Section 2(13) of the BPT Act.  The ownership  of movable and immovable properties at the places mentioned in the plaint is  referable to the congregations under the Brethren Church.  It is not alleged  that whereas the properties belong to the trust it was managed by the society.   The plaint furthermore does not disclose that the decision as regard  dissolution of the churches and congregation of Brethren Church had been  taken by anybody other than the trustees.  The committees constituted for the  aforementioned purpose, viz., Continuation Committee and Negotiating  Committee, evidently were represented by the authorities of the  congregations and not of any society.  A decision, as would appear from the  averments made in paragraph 6 of the plaint, to dissolve six uniting  Churches and merge the same into one, viz., the Church of Northern India  (C.N.I.) so as to make the latter a legal continuation and successor of the  United Churches and all the properties, assets, obligations, etc. of these  uniting churches would vest in or dissolve on C.N.I.  The very fact that a  decision having been taken as regard the properties, assets, obligations of the  United Churches, the same would mean that they would vest in the trust to  be created for the said purpose and not for the benefit of any society.

       We are not oblivious of the fact that the Resolution adopted in the  meeting held on 17th February, 1968 allegedly fulfilled all the requirements  for such resolution as provided in the Societies Registration Act but it is now  beyond any controversy that the society having not owned any property,  their transfer in favour of a new society was impermissible in law.  In terms  of Section 5 of the Societies Registration act, all properties would vest in the  trustees and only in case in absence of vesting of such properties in trustees  the same would be deemed to have been vested for the time being in the  governing body of such property.  In this case, it is clear that the properties  have vested in the trustees and not in the governing body of the society.

       There is nothing on record to show that the concerned churches were  being managed by the societies registered under the Societies Registration  Act.  In any event, it stands accepted that the dispute as regard dissolution of  societies and adjustment of their affairs should have been referred to the  principal court of original civil jurisdiction.

       The suit in question also does not conform to the provisions of Section  13 of the Societies Registration Act.

       Section 20 of the Act provides that the societies enumerated therein  can only be registered under the said Act.

       Unless a suit is filed in terms of Section 13 of the Act, the Society is  not dissolved.  Even assuming that the society stands dissolved in terms of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 22  

its Memorandum of Association and Articles of Association, the same would  not ipso facto mean that the properties could be adjusted amongst the  members of the society in terms of the provisions of the said Act.   Concededly, the properties of the trust being properties of the religious trust  had vested in such trust.  Such a provision, we have noticed hereinbefore,  also exist in the BPT Act.  Thus, only because the society has been  dissolved, ipso facto the properties belonging to the trust cannot be said to  have been adjusted.  The Appellants, thus, we have noticed hereinbefore,  have averred in the plaint that the suit relates to the property of the trust and  their administration.  If the properties of the churches did not belong to the  society, the Appellant herein cannot claim the same as their successor.  The  plaint has to be read meaningfully.  So done, it leads to the only conclusion  that the dispute was in relation to the management of the churches as  religious trust and not as a society.  Even if it is contended that the  administration of the property would mean the properties of the Brethren  Church both as a trust and as a society, still then having regard to the legal  position, as discussed supra, the property belonging exclusively to the trust,  the suit will not be maintainable.

       It is interesting to note that the Appellants themselves in grounds 1, 2,  4, 5 and 6 have categorically stated that both the society registered under the  Societies Registration Act and the trust registered under the BPT Act is only  one entity and that upon dissolution of a society the trust automatically  ceases and all that remains is to carry out the registration under the BPT Act  wherefor applications have been made before the Charity Commissioner.   The stand taken by the Appellants herein is unequivocal in nature.  The Trial  Court also appears to have proceeded on that basis, as would appear from  Issue No. 4 framed by it which is as under:

"(4) Whether it is proved that the Brethren Church  was also dissolved and ceased to exist as a separate  entity as alleged?

       The learned Trial Judge observed:

"Now, whether the First district Church of  Brethren has been legally dissolved in accordance  with the provisions of the Societies Registration  Act (Section 13) or whether it exists till today, can  only be decided by the Civil Court and such a  dispute cannot be decided by the Charity  Commissioner and as such, on this court also the  present Civil Court is the only competent Court to  decide the suit of the present nature.  Apart from  this, the strange consequence would follow if it  were to be held that the question of dissolution of  the First District Church of Brethren as a society  can be decided by the Civil Court but the question  of dissolution of it as a trust cannot be decided by  the Civil Court because the First District Church of  Brethren is only the on institution and in its dual  capacity viz. the society as well as the trust.  Apart  from this, even if it is assumed for the sake of an  argument that the jurisdiction of the dispute is to  be divided in two parts, then in that case, there is  every possibility of conflicting decisions by the  Civil Court and the Charity Commissioner and this  would lead to anomaly."

       The Trial Court, however, proceeded to determine the issue on the  premise that there exists an apparent conflict between the Societies  Registration Act and the BPT Act holding that as regard question of  jurisdiction of the civil court, the provisions of the BPT Act to the extent of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 22  

repugnancy would be inoperative.

       The finding of the learned Trial Judge on that count is apparently  wrong.  The learned counsel for the Appellants also did not raise any  contention before us that having regard to the provisions contained in Article  254 of the Constitution of India, the provisions of the Societies Registration  Act shall prevail over the BPT Act.

       In fact the Appellants have categorically admitted that the  Memorandum of Association of the Society itself became the deed of trust.   It also stands admitted that only with a view to have one body to administer  and manage the properties, the trust so created by the society was also  registered.  It is not a case where the trust was created for the benefit of the  society.  Furthermore, there is nothing on record to show the mode and  manner of the management and control of the trust property.  [See Board of  Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. State of Delhi  (Now Delhi Administration) and another, AIR 1962 SC 458, Dharam Dutt  and Others Vs. Union of India and Others, (2004) 1 SCC 712, para 52 and  Illachi Devi (Dead) By LRs. and Others Vs. Jain Society, Protection of  Orphans India and Others, (2003) 8 SCC 413, paras 21 and 22]

       In Athmanathaswami Devasthanam Vs. K. Gopalaswami Ayyangar  [AIR 1965 SC 338], this Court did not permit a new question to be raised.   In this case also, a new contention has been raised contrary to the pleadings  that the society and the trust are different entities.

       We have noticed hereinbefore that the BPT Act provides for finality  and conclusiveness of the order passed by the Charity Commissioner in  Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2).

       In view of the decision of this Court in Dhulabhai (supra) such finality  clause would lead to a conclusion that civil court’s jurisdiction is excluded if  there is adequate remedy to do what the civil courts would normally do in a  civil suit.  In this case, we are not concerned with a dispute as regard  absolute title of the trust property.  We are also not concerned with the  question as regard creation of any right by the trust in a third party which  would be otherwise beyond the jurisdiction of the Charity Commissioner.  It  is also not a case where the plaintiffs made a complaint that the provisions of  the BPT Act were not complied with or the statutory tribunal had not acted  in conformity with the fundamental principles of judicial procedure.  In fact  no order has been passed on the Appellant’s application for changes in the  entries made in the registers maintained under Section 17 of the Act.  The  BPT Act provides for express exclusion of the jurisdiction of the Civil  Court.  It in various provisions contained in Chapter IV a power of inquiry  and consequently a power of adjudication as regard the list of movable and  immovable trust property, the description and particulars thereof for the  purpose of its identification have been conferred.  In fact, the trustee of a  public trust is enjoined with a statutory duty to make an application for  registration wherein all necessary descriptions of movable and immovable  property belonging to the trust including their description and particulars for  the purpose of identification are required to be furnished.  Section 19  provides for an inquiry for registration with a view to ascertaining inter alia  the mode of succession to the office of the trustee as also whether any  property is the property of such trust.  It is only when the statutory authority  satisfies itself as regard the genuineness of the trust and the properties held  by it, an entry is made in the registers and books, etc. maintained in terms of  Section 17 of the Act in consonance with the provisions of Section 21  thereof.  Such an entry, it will bear repetition to state, is final and conclusive.   Changes can be brought about only in terms of Section 22 thereof.

       A change notice having been given, it would now be for the  appropriate authority to consider the matter and if a change has occurred, a  finding is required to be arrived which must contain the reasons therefor.   The defendants are disputing that any such change in accordance with law

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 22  

was effected.  An order passed by Deputy or Assistant Charity  Commissioner is appealable.  Yet again, when an amendment is made in the  entry in the register, the same would be final and conclusive.  Even a power  exists for holding a further inquiry.

       Section 31 bars a suit to enforce a right on behalf of a public trust.   C.N.I. got itself registered as a public trust in the year 1981.  A suit evidently  was filed by the plaintiffs in the year 1980 because C.N.I. was not then  entitled to file a suit.  It may be true that the suit was filed under Order 1,  Rule 8 of the Code of Civil Procedure but therein the question as to whether  the Appellant herein, being a registered trust became entitled to the  properties of Brethren Church could not have been gone into.  What is  prohibited is to enforce a right on behalf of a public trust.  When the  plaintiffs intended to enforce a right on behalf of the Appellant, the suit was  evidently not maintainable.

       Furthermore, the purported resolutions of the churches affiliated to the  Brethren Church and merger thereof with the Appellant, having regard to the  provisions of the Act was required to be done in consonance with the  provisions thereof.  It is not necessary for us to consider as to whether such  dissolution of the churches and merger thereof in the Appellant would  amount to alienation of immovable property but we only intend to point out  that even such alienation is prohibited in law.  The control and management  of the religious trusts vests in the Charity Commissioner.  The trustees of the  Trust are statutorily enjoined with a duty to render all cooperation to the  Charity Commissioner.  The directions issued by the Charity Commissioner  to the trustees are binding.  Dissolution of a trust, it is not disputed, is a  matter which falls within the exclusive jurisdiction of the Charity  Commissioner.   

       Prayer (a) in the plaint is for a declaration.  Such declaration cannot be  granted by a civil court as regard succession of the District Church of  Brethren as the same was a religious trust registered under the BPT Act.

       Prayer (b) of the plaint also could not have been granted, as the  question as to whether the applicant is the legal continuation and successor  of the First District Church of Brethren is a matter which would fall for  exclusive determination of Charity Commissioner keeping in view the  provisions of the deed of trust as regard its succession.  It would necessarily  follow that whether the First Appellant became a legal successor of the  properties held by the First District Church of Brethren could not also have  been granted.  The decision and resolution purported to have been adopted  by the Synod and Gujarat Diocesan Council are binding on all churches or  not would again be a question which could have been gone into by the  Charity Commissioner as the same had direct bearing not only with the  administration and management of the Church registered with it but also  related to the properties held by it.  Such a decision of the Charity  Commissioner is again final and conclusive subject to the decision of the  appellate authority, viz., Bombay Revenue Tribunal.

       Grant of prayer (c) for perpetual injunction would also give rise to  adjudication on the question as to whether the Appellant herein had the legal  right to own the properties of the First District Church of Brethren and  administer or manage the same although at the relevant time it was not  registered trust and although no amendment had been effected in the  registers and books maintained by the Charity Commissioner in terms of  Section 17 read with Sections 21 and 22 of the Act.  The plaintiffs with a  view to obtain an order of injunction furthermore were required to establish  that they could file a suit for enforcement of right of the Appellant as a  religious trust and such a legal right vests either in the plaintiff or in the  Appellant herein indirectly.  Such a prayer, related to the possession of the  property, comes squarely within the purview of the BPT Act.  If the question  as regard recovery of possession of the property belonging to a public trust  squarely falls within the purview of Section 50 of the Act, had such  application been filed before the Charity Commissioner he was required to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 22  

go into the question as to whether the plaintiffs are persons having interest in  the trust and whether a consent should be given to them to maintain a suit.   Only when, inter alia, such consent is granted, a suit could have been filed in  terms of Section 51 of the Act.  In the event of refusal to give consent, the  persons interested could have preferred an appeal.   

       Yet again the question as regard existence of a trust is a matter which  squarely falls within the purview of Section 79 of the Act.

       We have no doubt in our mind that the Charity Commissioner was  impleaded as a party at a later stage of the suit only with a view to fulfill the  requirements of Sub-section (3) of Section 50 of the Act.

       In Virupakshayya Shankarayya Vs. Neelakanta Shivacharya  Pattadadevaru [1995 Supp (2) SCC 531], this Court categorically held that  the suit for recovery of possession of property as validly appointed  Mathadhipati is hit by Sections 50 and 51 of the Act.  The matter might have  been different if the suit was not for declaration or injunction in favour or  against the public trust or where the plaintiffs are not beneficiaries either.   

       Narmadabai and Another Vs. Trust Shri Panchvati Balaji Mandir and  Others [1995 Supp (3) SCC 676] was a case where a suit for injunction was  filed for restraining the defendants from interfering with the implementation  of the scheme for better management and administration of the public trust  settled by the Charity Commissioner.  In that view of the matter, it was held  that a suit was not required to be filed in conformity with the provisions of  Sections 50 and 51 of the Act.

       In Shree Gollaleshwar Dev and Others vs. Gangawwa Kom Shantayya  Math and Others [(1985) 4 SCC 393], it was held:

"14. It is clear from these provisions that Section  50 of the Act created and regulated a right to  institute a suit by the Charity Commissioner or by  two or more persons interested in the trust, in the  form of supplementary statutory provisions  without defeasance of the right of the manager or a  trustee or a shebait of an idol to bring a suit in the  name of idol to recover the property of the trust in  the usual way. There is therefore no reason why  the two or more persons interested in the trust  should be deprived of the right to bring a suit as  contemplated by Section 50(ii)(a) of the Act.  Although sub-section (1) of Section 52 makes  Sections 92 and 93 of the Code inapplicable to  public trusts registered under the Act, it has made  provision by Section 50 for institution of such suits  by the Charity Commissioner or by two or more  persons interested in the trust and having obtained  the consent in writing of the Charity  Commissioner under Section 51 of the Act."

       The provisions of the Act and the Scheme thereof leave no manner of  doubt that the Act is a complete code in itself.  It provides for a complete  machinery for a person interested in the trust to put forward his claim before  the Charity Commissioner who is competent to go into the question and to  prefer appeal if he feels aggrieved by any decision.  The bar of jurisdiction  created under Section 80 of the Act clearly points out that a third party  cannot maintain a suit so as to avoid the rigours of the provisions of the Act.   The matter, however, would be different if the property is not a trust  property in the eye of law.  The civil court’s jurisdiction may not be barred  as it gives rise to a jurisdictional question.  If a property did not validly vest  in a trust or if a trust itself is not valid in law, the authorities under the Act  will have no jurisdiction to determine the said question.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 22  

       With a view to determine the question as regard exclusion of  jurisdiction of civil court in terms of the provisions of the Act, the court has  to consider what, in substance, and not merely in form, is the nature of the  claim made in the suit and the underlying object in seeking the real relief  therein.  If for the purpose of grant of an appeal, the court comes to the  conclusion that the question is required to be determined or dealt with by an  authority under the Act, the jurisdiction of the civil court must be held to  have been ousted.  The questions which are required to be determined are  within the sole and exclusive jurisdiction of the authorities whether simple  or complicated.  Section 26 of the Act must be read in that context as it  specifically refers to those questions wherewith a court of competent  jurisdiction can deal with and if the same is not expressly or impliedly  barred.  Once a decision is arrived at, having regard to the nature of the  claim as also the reliefs sought for, that civil court has no jurisdiction,  Section 26 per force will have no application whatsoever.  

       We may at this stage notice the decisions relied upon by the learned  counsel for the parties.

       In State of Madras Vs. Kunnakudi Melamatam and another [AIR 1965  SC 1570] a composite suit for injunction was filed claiming two different  reliefs, viz. (1) an injunction restraining the levy of contributions and audit  fees under Act II of 1927; and (2) an injunction restraining the levy of  contributions and audit fees under Act XIX of 1951.  It was, in that context,  held that although the decision under Section 84(2) of Madras Hindu  Religious Endowments Act that an institution is outside the purview of the  Act, the demand of contribution as being not enforceable under the 1951 Act  was maintainable.

       In Sri Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru  Pattabhirami Reddi [AIR 1967 SC 781], this Court was concerned with a  question as to what constitutes an administration of religious property.  In  that case, the provisions of the Act did not impose a total bar on the  maintainability of a suit in a civil court and having regard to that aspect of  the matter vis-‘-vis Section 92 of the Code of Civil Procedure it was held  that Section 93 of Madras Hindu Religious and Charitable Endowments Act  would apply in the matter for which provision has been made in the Act and  would not bar the suit under the general law which do not fall within the  scope of any section of the Act.  This decision instead of helping the  Appellant runs counter to their claim.

       In Chiranjilal Shrilal Goenka (Deceased) Through LRs. Vs. Jasjit  Singh and Others [(1993) 2 SCC 507] it was held that in matters relating to  will the Probate Court has exclusive jurisdiction.  The said decision was  rendered having regard to the fact that the decision of a probate court is a  judgment in rem and conclusive and binds not only the parties but also the  entire world.

       In Rajasthan State Road Transport Corporation and Another Vs.  Krishna Kant and Others [(1995) 5 SCC 75], this Court following Dhulabhai  (supra) held that having regard to the provisions contained in the Industrial  Disputes Act and Industrial Employment (Standing Orders) Act, 1946, the  civil court will have no jurisdiction as enumerated in paragraph 35.

       In Sahebgouda (Dead) By LRs. and Others Vs. Ogeppa and Others  [(2003) 6 SCC 151] the allegations made in the plaint showed that the only  right claimed by the Appellants was that of being ancestral pujaris of the  temple.  They did not claim to be the trustees of any trust.  No declaration  regarding the existence or otherwise of the trust or any particular property is  the property of such trust had been claimed and in that view of the matter, it  was held that the reliefs so claimed do not come within the purview of  Section 19 or Section 79 of the Act wherefor the Deputy or Assistant Charity  Commissioner will have the exclusive jurisdiction to hold an inquiry and  give a decision.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 22  

       Ramesh Chand Ardawatiwa Vs. Anil Panjwani [(2003) 7 SCC 350]  has no application in the present case as therein the Charity Commissioner  took a specific objection that the civil court’s jurisdiction is barred  whereupon several additional issues were framed and determined.

       In NDMC Vs. Satish Chand (Deceased) By LR. Ram Chand [(2003)  10 SCC 38], this Court clearly held that Sections 84 and 86 of the Punjab  Municipal Act, 1911 bar the jurisdiction of the civil court as the Act  provided a complete remedy to the party at plea as also a remedy by way of  an appeal.

       In K. Shamrao and Others Vs. Assistant Charity Commissioner  [(2003) 3 SCC 563], this Court held:

"17\005Functions of the Assistant Charity  Commissioner are predominantly adjudicatory.   The Assistant Charity Commissioner has almost all  the powers which an ordinary civil court has  including power of summoning witnesses,  compelling production of documents, examining  witnesses on oath and coming to a definite  conclusion on the evidence induced and arguments  submitted."

       In Yeshwantrao Laxmanrao Ghatge and Another Vs. Baburao Bala  Yadav (Dead) By LRs. [(1978) 1 SCC 669], this Court observed:

"8. Mr Datar placed reliance upon the decision of  the Bombay High Court in Dev Chavata v. Ganesh  Mahadeo Deshpande in order to take advantage of  Section 52-A of the Act. The ratio of the case has  to be appreciated in the background of the facts  found therein. The principles of law as enunciated  cannot be fully and squarely applied. But yet the  decision, if we may say so with respect, is correct.  This would be on the footing that the decision  given by the Assistant Charity Commissioner  under Section 79 read with Section 80 of the Act  was conclusive and final. He had exclusive  jurisdiction to decide the question as to whether  the suit land belonged to the trust. He had so  decided it on November 5, 1954. The suit was filed  on July 21, 1955. In that view, the High Court was  right in holding that a suit filed under Section 50 of  the Act was not barred under Section 52-A because  the decision of the Assistant Charity  Commissioner given in 1954 had declared the  property to be a trust property and which decision  was final."

       In Suresh Ramniwas Mantri and another Vs. Mohd. Iftequaroddin s/o  Mohd. Badroddin [1999(2) Mh.L.J. 131] it was observed that a society  although formed either for religious or charitable purposes or for both cannot  be held to a public trust ipso facto although registered under the Societies  Registration Act unless it is registered also under the BPT Act as the  question whether such a trust was validly formed or not would come within  the purview of Sections 18, 19 and 20 of the BPT Act.  In that case the  plaintiff was not registered as a public trust and in that situation it was held  that Section 80 would operate.

       In Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and  others [2001(2) Mh.L.J. 512], a learned Single Judge of the Bombay High  Court held that a civil suit cannot be entertained only because a complicated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 22  

questions of title has been raised.

       In Keki Pestronji Jamadar and Another vs. Khodadad Merwan Irani  and Others  [AIR 1973 (Bom) 130] the question was as to whether the  author of a trust was the lawful owner of the property of which he has  created the trust.  The Full Bench of Bombay High Court held that the author  of the trust has no title over the property and Section 80 would not operate as  a bar.

       In Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and  Sons and Others [(1994) 1 MhLJ 280] a question arose as regard power of a  co-trustee to delegate a matter relating to grant or determination of lease to  another co-trustee keeping in view of Section 47 of the Act which deprives  the trustee from delegating his office or any of his duties to a co-trustee or a  stranger unless conditions mentioned therein are complied with.

       The principle enunciated in each of the decision laid down relate to  the fact situation obtaining therein.  In each case indisputably the lis arose  for determination of a question relating to interpretation of one or the other  clause enumerated in different provisions of the BPT Act which come either  within the exclusive jurisdiction of the statutory authorities or otherwise.   The Civil Court will have no jurisdiction in relation to a matter whereover  the statutory authorities have the requisite jurisdiction.  On the other hand, if  a question arises, which is outside the purview of the Act or in relation to a  matter, unconnected with the administration or possession of the trust  property, the Civil Court may have jurisdiction.  In this case, having regard  to the nature of the lis, the jurisdiction of the Civil Court was clearly barred.  

CONCLUSION:

       Having given our anxious thought in the matter, we are of the opinion  that the suit has rightly been held to be not maintainable by the High Court  and, thus, the impugned judgments must be affirmed.

The applications for impleadment filed by various persons, in view of  the aforementioned findings, need not to be dealt with separately.

       For the reasons aforementioned, we do not find any merit in this  appeal which is dismissed accordingly.  No costs.