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CASE NO.: Appeal (civil)  7351 of 2001

PETITIONER: Pandit Vasudev Vyas (Dead) Thr. LRS.                     

RESPONDENT: Board of MGMT, S.S.J.S. Peeth & Ors.                     

DATE OF JUDGMENT: 25/04/2006

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

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

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

       The dispute involved in this appeal, which arises out of a 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. 11607 of 2000, centers  round the appointment to the post and seat of Jagadguru Shankaracharya/  Sole Trustee of the Respondent \026 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  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 established in the  District of 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 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 \026 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  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 Sankarcharya of the said Peeth; objections  whereto were filed.  The Appellant herein was also one of the objectors.  By  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:

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"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 this  Peeth he must be sannyasi."

       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.

       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.

       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  time, a litigation was pending in the State of Karnataka 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:

"1.     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? 3.      If so whether the second defendant lost all  his rights and privileges as Adhikari Shishya? 4.      Whether the Plaintiff proves that the 1st  defendant was validly dismissed by Shri  Guruswami Shirolkar on or about 8.9.1958? 5.      If so, whether the 1st defendant lost all his  rights and provisions 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 thereby? 8.      Whether the plaintiff proves the alleged last  will and testament of 15.10 of Shri Guruswami  Shirolkar? 9.      If so, whether the 1st defendant proves that  the will is void and does not affect his interests? 10.     Whether the Plaintiff proves that the 1st  defendant is in illegal and unauthorized possession  of the suit properties? 11.     Whether the 1st defendant establishes that  from 1.7.1957 he became 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 ceased to be the

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Jagadguru on or about 15.10.1958? 13.     Whether the Plaintiff is entitled for the  declaration sought? 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:

"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 in September, 1958 by a  valid order and he ceased to be Adhikari Shishya  thereafter.

       If the dismissal of first defendant was valid  there can be no doubt that Guruswami was  competent to initiate first plaintiff as Adhikari  Shishya which he did on 15th October, 1958.   Plaintiff, therefore, became a valid Adhikari  Shishya of Shirolkar Swami and consequently on  the death of Shirolkar Swami Plaintiff was entitled  to succeed to him as Shankaracharya of  Sankeshwar Karbir Mutt and is also entitled to take  possession of the properties of the Mutt."

       A notice was issued by this Court on 18.9.2000 having regard to the  said contention of the Appellant wherein it was noticed: "It is pointed out by learned senior counsel  appearing on behalf of the petitioner that a specific  clause in the Scheme of 1963 mentions that there  is a pending litigation and that the person who  would be declared by the civil court in the pending  litigation would be the sole trustee of the Trust and  that there could not be a second trustee like the  respondent.  Once R.F.A. 143/82 was decided on  23.9.92 in favour of the plaintiff in the suit by a  Division Bench of the Karnataka High Court  allowing the appeal of the plaintiff, the respondent  had to be removed as a second trustee.

       It is, therefore, contended that in view of the  said judgment there cannot be another  Sankaracharya for the Trust which is the subject  matter of this SLP and that the Petitioner is  espousing the cause of the Sankaracharya of the  plaintiff in that suit, inasmuch as being a  Sankaracharaya he would not pursue the matter in  court.

       It is also contended that the petitioner could  not draw the attention of the Division Bench of the  High Court to the relevant clause in the Scheme  though a copy of the said judgment of the  Karnataka High Court was part of the record  before the Bombay High Court.  Issue notice."

       We may notice that the contention that both the Peeths are in effect  and substance the branches of the same entity was negatived by the High  Court stating:

"\005The contention has to be stated merely for the

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purpose of being rejected since there is a categoric  finding that the Karveer Trust is a separately  registered Trust under the Bombay Public Trust  Act, bearing Registration no. A-1391 (Kolhapur).   It is brought to our notice that the affairs of the  Sankeshwar Trust are the subject matter of some  pending litigation in the Karnataka High Court, at  Bangalore.  In the 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 (Belgaum).  Thirdly, there is no challenge  to the factum of the registration of the Karveer  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,  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  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  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 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.   

       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  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 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."

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       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  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.   

       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 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 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 Karnataka  High Court 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.

       We, therefore, are of the opinion that the matter should be directed to  be considered afresh by the Division Bench of the High Court.  We direct  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 should be put to an end as early as  possible.  We agree with the learned counsel.  We would, therefore, request  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.   However, in the facts and circumstances of this case, there shall be no order  as to costs.