http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: VIRUPAKSHAYYA SHANKARAYYA

       Vs.

RESPONDENT: NEELAKANTA SHIVACHARYA PATTADADEVARU

DATE OF JUDGMENT21/03/1995

BENCH: HANSARIA B.L. (J) BENCH: HANSARIA B.L. (J) RAMASWAMY, K.

CITATION:  1995 AIR 2187            1995 SCC  Supl.  (2) 531  JT 1995 (3)   513        1995 SCALE  (2)315

ACT:

HEADNOTE:

JUDGMENT: HANSARIA, J.: 1.The  respondent-plaintiff  has placed himself  within  two horns  of  a bull and it is not possible for  him  to  avoid strike  by  one or the other.  And the bull is  no  ordinary one,  as  it has the backing and the blessings  of  no  less powerful  a  body  than Privy Council  of  Jamkhandi  State, within whose territorial jurisdiction the suit property  was situate,  for the recovery of which the respondent made  his claim  by filing the present suit on 4.2.1954. It is a  pity that  despite  the case of  the  appellant-defendant  having received support from the Privy Council, he came to lose  on the  same point, to start with, at the hand of Civil  Judge. The  High  Court, which ultimately upheld the  view  of  the Civil Judge, should not have allowed this piquant  situation to prevail. 2.   The  broad facts of the case at hand consist in  filing of  the  present suit by respondent No. 1 in  1954,  seeking possession  of  the  suit  property,  as  validly  appointed Padadayya  (Mathadhipati)  of the math  at  Jamkhandi.   The plaintiff claimed this property on the assertion that he had been  duly  installed  as  Padadayya  on  30.1.1994,  as   a successor to Virupakshayya 1, who had died as early as 1903. According to him, defendant Nos.  1 and 2 had not been  duly installed  as  Padadayyas; so also, one  Shivalingayya,  who according to defendant No. 1 had been installed as Padadayya in 1935 and had in turn nominated him as Padadayya in  1943. There  is  no  dispute at all between the  parties  that  if Shivalingayya had been validly nominated and installed  a.,; Padadayya,   the  plaintiff  cannot  succeed.   And  it   is precisely  this  aspect  of the case which had  come  to  be decided  in favour of Shivalingayya by the Privy Council  in an  earlier  litigation began by one Andanayya in  1934,  to which,  of  course, the present plaintiff was not  a  party, but,  according to him, it was the aforesaid  Andanayya  who had installed him as Padadayya on 30.1.1944.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

3.Now,  If  the present suit has to be regarded as  one  for possession of suit property simpliciter, as is the prayer in the  plaint, it would be hit by Section 50 read with  51  of the Bombay Public ’Trusts Act, 1950 (the Act).  To save this blow by the bull, Shri Wad, appearing for the respondent No. 1, first urged that the suit was, really not for  possession simpliciter  but  was for declaration of the status  of  the plaintiff  as  Padadayya and prayer for  possession  may  be treated as consequential relief But, if the present be taken as  a suit for declaration, then it was  hopelessly  barred, because  the  declaration sought is that the  plaintiff  had become Padadayya after Virupakshayya  had died in 1903.   As the suit was filed in 1954 it was apparently much beyond the time.   Faced with this situation, Shri Wad’s effort was  to convince  us that the suit is not hit by Sections 50 and  51 of the Act, 4.   Let it be seen whether this contention can be accepted. Section 50 of the Act deals with suits relating with  public trusts. 516 The relevant part of this section reads as under :               "In any case-               (i)   xxx xxx xxx               (ii)  where  a declaration is  necessary  that               that  a  particular  property  is  a  property               belonging  to  a  public  trust  or  where   a               direction  is  required to  recover  the  pos-               session  of such property or the  property  or               proceeds  thereof from any person including  a               person holding adversely to the public trust.               (iii) xxx xxx xxx               The  Charity  Commissioner  or  two  or   more               persons having obtained the consent in writing               of  the  Charity Commissioner as  provided  in               Section 51 may institute a suit..... to obtain               a decree for any of the following reliefs :               (a)   an  order for the recovery of  the  pos-               session of such property or proceeds thereof,                  xxx xxx xxx               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 a provision thereof.                  xxx xxx xxx"                         (Emphasis ours) 5.   Section 51 deals with giving of consent by the  Charity Commissioner for the institution of suit. 6.   Shri  Wad contends that clause (ii) applies  only  when recovery  of  possession is sought from  person  holding  it adversely  to  the public trust, which is not  the  case  at hand.  This contention is sought to be advanced on the basis of  what  was  held by this Court  in  Gollaleshwar  Dev  v. Gangawwa KomShantayya Math, (1985) Suppl.3 SCR 646, in which case the view taken by a Full Bench of the Mysore High Court in  case  of the aforesaid parties as reported in  AIR  1972 Mysore 1 was not approved. 7.The  contention is misconceived, because in the  aforesaid case  this  Court was called upon to decide whether  two  or more trustees of a public trust (the math at hand is also  a public  trust), could file suit for possession  of  property belonging to public trust from a person holding it adversely to the trust.  The Mysore High Court took the view that  the expression "a person having interest", of which mention  has been  made in Section 51 (1), did not include the  trustees, because  of  the definition of this  expression  in  Section

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

2(10) of the Act.  This Court, however, did not endorse  the view  of the Full Bench by observing that the definition  in Section  2(10) was an inclusive one and there was no  lawful justification to exclude trustees from the same.  As in that case the suit was filed to recover possession from a  person holding adversely to the trust, about which also mention has been  made in clause (ii) of Section 50, it does not  follow that clause (ii) vasualises suit for recovery of  possession only from a person holding adversely to the public trust, as it has clearly stated about recovery of possession "from any person".   According to us, this would include a person  who may not claim adversely to the public trust, as is the  case of defendant No. 1 in this case. 8.   It is because of this factual and legal 517 position  that we have stated that the plaintiff  is  within two  horns of the bull.  If to take care of the  restriction imposed by Section 50 read with 51 of the Act, the nature of the  suit is sought to be changed to be one  of  declaration with consequential relief of possession, it would be hit  by limitation. 9.   The  above  apart, what is more material  is  that  the Privy  Council of Jamkhandi State having held in an  earlier proceeding   that  Shivalingayya  was  duly  nominated   and installed as Padadayya inasmuch as he had been so  nominated by Shankarayya before his marriage, which is the only ground on  which  Shivalingayya’s nomination has been  held  to  be vitiated  in the present proceedings by the High  Court,  we are of the frim view that the contrary conclusion arrived at in  the present proceedings in favour of plaintiff does  not deserve  to be confirmed.  It may be that principle  of  res judicata has no application, despite what has been stated in Explanation  VI  of Section II C.P.C., inasmuch  as  in  the earlier proceeding the present plaintiff was not a party and Andarayya (the plaintiff therein) had not claimed possession of the property as Padadayya but as Charanti contending that as  the  office  of Padadayya was lying  vacant  because  of invalidity  in  the  nomination  and  the  installation   of Shivalingayya,  he  had  stepped into  shoes  of  Padadayya. There is, however, no denial that the foundation of the case of  Andanayya  was the infrimity in the nomination  and  the installation  of  Shivalingayya  as  Padadayya;  and  it  is precisely this which the Privy Council had not accepted. 10.  In  the aforesaid premises, the judgment of  the  Privy Council, even though the same did not bind the plaintiff  on the  principle  of res judicata, was definitely  a  relevant circumstance  to be taken note of, because of what has  been stated in Section 42 of the Evidence Act.  What we, however, find is that the High Court had only referred to the earlier decision  without examining the question as to  whether  law permitted  a  contrary  view to be taken on  the  self  same issue.   According  to  us, the issue  having  been  finally determined  at  the highest level, the same could  not  have been  re-examined,  which  exercise,  to  start  with,   was undertaken even by a Civil Judge, 11.  Shri Wad contends that even the defendents did not take such  a stand throughout the litigation, which  is  apparent from  the  fact that they tried to establish their  case  de novo  by leading fresh evidence.  Though this is so, we  are of the view that the defendents were wrongly advised and  we have  to  set right the dent caused to the decision  of  the Privy  Council.   The  only  way available  to  is  in  this proceeding  to  do so is to restore the view that  taken  by that high powered Committee. 12.  We  hold that plaintiff could not have taken  stand  in

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

the  present proceeding that Shivalingayya’s nomination  and installation  as Padadayya was invalid, which  would  render his  entire exercise futile and one akin to  shadow  boxing. It  may  also be stated that his suit was either  barred  by limitation or was hit by the provisions contained in Section 50 read with 51 of the Act. 13.  We, therefore, allow the appeal, set aside the impugned judgment  of the High Court, with the result that  the  suit filed by respondent No. 1 stands dismissed.  In the 518 facts and circumstances of the case, we make no order as  to costs. 519