Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3030 OF 2004

SAINATH MANDIR TRUST                            ...Appellant

Versus  

VIJAYA & ORS.                       ...Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

This appeal by special leave has been filed against the  

Judgment and Order dated 27.03.2003 passed by the High  

Court of Judicature at Bombay, Bench at Nagpur, in Second  

Appeal No. 246 of 1990 whereby the appeal was dismissed  

on merit. Consequently, the judgment of reversal passed by  

the Additional District Judge, Amaravati allowing the appeal  

and setting aside the judgment and order of the Trial Court  

which  had  dismissed  the  suit  of  the  plaintiff/respondent,  

was upheld.

2. The  origin  of  this  appeal  at  the  instance  of  the  

defendant/appellant herein emanates  from a Regular Civil  

Suit No. 166 of 1983 which had been filed by the deceased  

plaintiff-Shri  Vitthal  Motiramji  Mandale  who  is  now  

represented  by  his  legal  heirs  Respondent  Nos.  1-7,  for  

possession and damages valued at Rs. 17,500/- in the Court  

of  Civil  Judge  Senior  Division,  Amaravati,  against  the  

appellant  -  Sainath  Mandir  Trust  which  is  a  registered  

public trust within the provisions of Bombay Public Trusts  

Act 1950. The suit land comprises of a plot bearing No. 57,  

arising out of original fields bearing Survey No. 33, situated  

at Saturana in the outskirts of Amravati Township. As per  

the  case  of  the  defendant/appellant  herein,  which  

admittedly is a public trust, the suit property was dedicated  

to  the  idol  of  Saibaba  by  the  respondent  No.  8  /original  

defendant No.2 by way of a gift deed executed way back on  

31.1.1974 which according to the appellant’s  version, was  

immediately acted upon as possession was also handed over  

to  the  appellant-trust  which  is  in  occupation  of  the  suit  

property  till  date.  It  is  the  specific  case  of  the  

defendant/appellant that the suit plot was donated by way  

of  a  gift  deed  executed  by  the  original  defendant  No.2  

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/respondent No. 8 herein Shri Vasant Mahadeo Fartode on  

31.1.1974  essentially  for  building  a  residential  

accommodation for devotees of the Saibaba Mandir run by  

the  appellant-trust.  Thus,  by  virtue  of  the  gift  deed,  the  

admitted owner respondent No. 8 / original defendant No. 2  

Shri Vasant Mahadeo Fartode was divested of the title over  

the suit  property after  he executed the gift  deed and also  

delivered  possession  of  the  plot  to  the  appellant-trust.  

Hence,  as  per  the  case  of  the  appellant  Sainath  Mandir  

Trust, the gift  deed dated 31.1.1974 was duly acted upon  

since the appellant immediately came in possession of the  

suit property and continues to remain in possession of the  

same till date ever since 1974.  

3. As  against  the  aforesaid  case  of  the  appellant,  the  

predecessor of the contesting respondent Nos. 1-7, late Shri  

Vitthal Motiramji Mandale who is now legally represented by  

the  respondent  Nos.  1-7,  intended  to  purchase  the  suit  

property and therefore issued  a notice in daily “Matrbhumi”  

dated 2.10.1982 thereby inviting objections in respect of the  

said plot. Further, case of the respondent Nos. 1 to 7 is that  

no objections were received in response to the notice as a  

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result of which the predecessor of respondent Nos. 1 to 7 i.e.  

late Shri Vitthal Motiramji Mandale purchased the plot from  

the  respondent  No.  8-Shri  Vasant  Mahadeo  Fartode  by  a  

registered sale deed dated 14.10.1982 for a consideration of  

Rs.  17,000/-.  As  per  the  plaintiff/respondent’s  case,  they  

also claimed to  have immediately  taken possession of  the  

said  property  after  execution  of  the  sale  deed  and  it  is  

further  averred  that  when  the  contesting  respondents  

wanted to put fence around the said plot, then on 4.12.1982  

they noticed a board on the disputed plot which was put up  

by the appellant-trust on which it was mentioned that the  

respondent No. 8/defendant No.2 had given the said plot to  

the  appellant-trust  for  construction  of  a  residential  

accommodation for the devotees of Saibaba Mandir. In view  

of this notice, the respondents sent a notice on 7.12.1982 to  

the appellant-trust to remove the board and further do not  

obstruct to the fencing of the suit plot which was responded  

by the appellant-trust stating that they are in possession of  

the suit plots since 31.1.1974 and are owners of the plot in  

question and cannot be directed to vacate.  

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4. The  respondent  felt  seriously  aggrieved   with  this  

response and hence a Regular Civil Suit No. 166 of 1983 was  

filed by the predecessor of the contesting respondent Nos. 1  

to  7 -  Shri  Vitthal  Motiramji  Mandale  for  possession  and  

damages valued at Rs. 17,500/- in the Court of Civil Judge,  

Senior  Division,  Amaravati.  The  appellant-trust contested  

the  suit  by  filing  a  written  statement  on  19.12.1983  

asserting  their  ownership  and  possession  over  the  suit  

property since 31.1.1974. It was stated therein that the suit  

land had already been gifted to the appellant-trust by gift  

deed  dated  31.1.1974  which  was  properly  executed  and  

validly attested and had also been acted upon by the parties  

concerned.  It  was,  therefore,  submitted  therein  that  by  

virtue  of  the  gift  deed respondent  No.  8/defendant  No.  2  

had no  subsisting  title  or  ownership  as regards the suit  

property and as such he was not entitled to subsequently  

execute any sale deed in respect of the suit property.  

5. The  learned  IInd  Joint  Civil  Judge,  Junior  Division,  

Amravati  who tried the suit was finally pleased to dismiss  

the  suit  and  denied  the  relief  regarding  the  recovery  of  

possession of the said plot. However, the suit was decreed to  

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the  extent  of  damages  of  Rs.  17,500/-  to  be  paid  to  the  

respondent/original  plaintiff  by  the  respondent  No.  

8/original  defendant  No.2  within  30  days  alongwith  the  

costs of the suit. It was further directed that the respondent  

No. 8/original defendant No.2 shall  pay future interest on  

the principal amount of Rs. 17,000/- from the date of filing  

of the suit till its full realization at the rate of Rs. 10/- per  

cent per annum to the predecessor of respondent Nos. 1 to 7  

herein  as  it  was  held  that  respondent  No.  8  could  not  

execute  the  sale  deed  in  favour  of  a  third  party  i.e.  the  

predecessor  of  respondent  Nos.  1  to  7  herein  as  he  had  

already executed a gift deed in favour of the appellant way  

back  on  31.1.1974  which  was  acted  upon  as  a  result  of  

which the appellant-trust was already in possession of the  

suit land. Thus, the Trial Court was pleased to dismiss the  

respondent/ original plaintiff’s claim in so far as the recovery  

of possession of the suit plot is concerned.  

6. The predecessor of the plaintiff/respondent Nos. 1 to 7  

assailed the judgment and order of the Trial Court before the  

Court  of  learned  District  Judge,  Amaravati  and  the  

appellant-trust  also  filed  cross-objections  challenging  the  

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findings of the trial court in so far as the validity of the gift  

deed executed in favour of the appellant was concerned. It  

had been submitted therein  that  the  gift  dated 31.1.1974  

was for a price below Rs. 100 and it was in favour of the  

deity  and as  such was  admissible;  hence  the  Trial  Court  

committed an error  in holding that  the  gift  deed was not  

valid. The appellant therein had also contended that the gift  

deed conferred a legal and valid title coupled with possession  

in favour of the appellant-trust and hence the subsequent  

documents of sale deed claimed to have been executed in  

favour of the plaintiff/contesting respondents ought not to  

have  been  ignored  as  the  vendor  Shri  Vitthal  Motiramji  

Mandale  was  not  left  with  any  title  concerning  the  suit  

property.  It  was  further  pointed  out  from  various  

circumstances  and  evidence  brought  on  record,  that  a  

fraudulent collusion exited between the original plaintiff and  

the defendant Nos.1 and 2 i.e. vendor and the vendee and  

the alleged sale deed did not confer any title to the vendee  

since the vendor had already executed a gift deed in favour  

of the appellant-trust  almost 8 years prior to execution of  

the  gift  deed  which  was  acted  upon  and  possession  was  

delivered to the appellant-trust. However, the First Appellate  

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Court  being  the  Court  of  Additional  District  Judge,  

Amaravati  was  pleased  to  allow  the  appeal  of  the  

plaintiff/respondents and rejected the cross-objections filed  

by the appellant-trust.  

7. Being  aggrieved  by  the  Judgment  and  Order  dated  

4.5.1990  passed  by  the  Additional  District  Judge,  

Amaravati,  the appellant-trust was constrained to prefer a  

Second Appeal  No.  246 of  1990 before  the  High Court  of  

Judicature at Bombay, Nagpur Bench, Nagpur wherein the  

substantial questions of law, inter alia, was raised that the  

civil  suit  filed  by  the  plaintiff/respondent  was  expressly  

barred in terms of the provisions of Sections 19, 20, 79 and  

80 of the Bombay Public Trusts Act 1950. The substantial  

question  of  law  was  further  raised  whether  the  gift  deed  

dated  31.1.1974  being  an  Act  of  “Dedication”  of  the  suit  

property by the respondent No. 8 to the deity which is not a  

“living  person”  would  not  be  “Dedication”  of  property  in  

terms of  Section  123 of  the  Transfer  of  Property  Act  and  

hence whether the provisions of the same are not applicable  

to the deed of gift which had been executed in favour of the  

deity. Substantial question was also raised whether the suit  

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could  be  entertained  without  permission  of  the  Charity  

Commissioner  under  Sections  50  and  51  of  the  Bombay  

Public Trusts Act 1950 which had not been obtained by the  

original plaintiff prior to filing of the suit. The gift deed dated  

31.1.1974 having been acted upon in pursuance of which  

the appellant-trust came in possession of the said property  

since 31.1.1974 and continues to be in possession till date,  

could not have been ordered to be restored in favour of the  

plaintiff/respondent  predecessor  as  the  sale  deed  dated  

14.10.1982 which was subsequently executed by the vendor,  

could  not  confer  any  right  and  title  to  the  respondent  /  

purchaser  as  the  plot  in  question  had  already  been  

dedicated to the idol of which the appellant is the trust.  

8. The learned single Judge of the High Court of Bombay  

at Nagpur Bench, Nagpur, however, was pleased to dismiss  

the appeal as it was held that Section 123 of the Transfer of  

Property Act lays down the procedure in which the property  

can be transferred by way of a gift and it is necessary that  

the  said  document  should  have  been  registered  and  it  

should  have  been  signed  by  the  donor  attested  by  two  

witnesses. It was held that none of the requirements have  

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been  complied  and,  therefore,  the  appeal  against  the  

judgment  and  order  of  the  Additional  District  Judge,  

Amaravati was not fit to be entertained.  Consequently the  

appeal stood dismissed against which this appeal by special  

leave has been filed by the appellant -Sainath Mandir Trust  

and the special leave having been granted in favour of the  

appellant, this appeal has come up before us for hearing and  

its adjudication.  

9. In so far as the contention of the plaintiff/respondent  

in support of the Judgment and Order of the High Court as  

also  First  Appellate  Court  is  concerned,   the  arguments  

advanced  before  the  Courts  below  have  been  reiterated  

which was accepted by the High Court which held that the  

gift  deed  executed  in  favour  of  the  deity  of  which  the  

appellant is a trustee, conferred no right and title in favour  

of  the  deity  and  therefore  the  donor  had  every  right  to  

execute  subsequently  a  sale  deed  in  favour  of  the  

predecessor of the contesting respondents in view of which  

the  suit  filed by the predecessor  of  contesting respondent  

Nos. 1 to 7 was rightly decreed in their favour by the First  

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Appellate Court being the Court of Additional District Judge  

which was upheld by the High Court.  

10. Learned  counsel  for  the  contesting  defendant/the  

appellant-trust on its part submitted at the threshold that  

the  gift  deed  which  was  executed  in  favour  of  the  deity  

clearly reveals that the same is a “Dedication” to an idol and  

not  a  “living  person”  by  the  respondent  No.  8/original  

defendant No. 2 and thus the same can be said to be a valid  

transfer in terms of Section 123 of the Transfer of Property  

Act. Elaborating on this aspect, it was submitted that the  

idea, intention and the feelings of the donor behind the gift  

deed has not been taken into consideration and going by the  

nomenclature of the document, if the intention of the donor  

is appropriately construed from the words of the gift deed,  

the same will  clearly and unambiguously suggest that the  

defendant  No.2-Vasant  Fartode  who  was  a  devotee  of  

Saibaba had dedicated the said property to the idol for the  

construction of  ‘Bhakta Niwas’.  This issue was specifically  

raised in the cross-appeal filed before the District Judge and  

was reiterated in the Second Appeal. The gift in question was  

a ‘dedication to the idol’  and hence the same was a valid  

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transfer in favour of the appellant-trust and, therefore, there  

was no question of any registration of the same, since the  

gift deed was executed on 31.1.1974 and was clearly acted  

upon as possession was also handed over to the appellant-

trust.  The  finding  of  the  Trial  Court  would  clearly  

demonstrate that the appellant was in possession of the said  

property  in  question  and  the  same  is  an  undisputed  

position.  The  very  fact  that  the  suit  for  possession  was  

required  to  be  filed  by  the  respondent/original  plaintiff  

further substantiates the fact that the gift deed was acted  

upon and possession was delivered to the appellant-trust.  

11. Supplementing  the  aforesaid  arguments,  it  was  still  

further  contended  that  in  view  of  the  “dedication”  of  the  

property to the idol of which the appellant is a trustee, any  

suit  for  possession  against  such  property  could  not  have  

been filed without the  requisite  permission of  the  Charity  

Commissioner  under  Sections  50  and  51  of  the  Bombay  

Public Trusts Act 1950. A mere perusal of Section 50 Sub-

Section  (2)  of  the  Bombay  Public  Trusts  Act  specifically  

indicates  that  “where  a  direction  or  decree  is  required  to  

recover  the  possession  or  to  follow property  belonging  ‘or  

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alleged’  to  be  belonging  to  a  public  trust”  and  a  dispute  

arises  in  regard  to  the  same,  permission  of  the  Charity  

Commissioner  was  clearly  a  necessary  legal  requirement.  

Hence,  it  was  submitted  that  as  the  appellant-trust  is  in  

possession  of  the  plot  in  question  and  the  relief  of  

possession was sought by plaintiff/respondent, the requisite  

permission  under  Sections  50  and 51  became mandatory  

before filing such a suit, failing which the suit ought to have  

been  rendered  as  not  maintainable.  The  requirement  or  

necessity of such a permission is the basic requirement at  

the very threshold and it is impermissible for the Court to  

enter into the merits of the matter vis-à-vis the validity of the  

transfer etc. in such a suit which does not comply with the  

basic requirement of obtaining such a permission. Hence, it  

was contended that First Appellate Court as also the High  

Court have clearly erred in going into the issues of title and  

validity  of  the  transfer  which  are  only  subsequent  issues  

which  would  arise  only  if  the  suit  qualified  the  test  of  

Sections 50 and 51 of the Act. The Courts below also failed  

to take into  consideration  that  the  suit  was bad for  non-

joinder of necessary parties in terms of Order XXXI Rule 2 of  

C.P.C. as all the trustees of the Trust were not joined  as  

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parties  and hence  the  Trial  Court  was clearly  justified  in  

dismissing  the  suit  as  not  maintainable  for  want  of  

necessary  permission  of  the  Charity  Commissioner  under  

Sections 50 and 51 of the Act as well as non-joinder of all  

the trustees in terms of Order XXXI Rule 2 of the C.P.C. It  

was  also  submitted  that  the  appellant-trust  has  been  in  

uninterrupted possession of the suit land since 31.1.1974  

and the suit property in question had already been included  

and recorded by the Charity Commissioner as a property of  

the trust and the Change Report to that effect was required  

in terms of  Section 22 of the Bombay Public Trusts Act. It  

was  finally  submitted  that  the  property  in  question  was  

gifted for a pious purpose of construction of ‘Bhakta Niwas’  

and,  therefore,  considering  the  aforesaid  factors  and  the  

comparative hardships to the parties, the suit for possession  

is  not  only  fit  to  be  dismissed  on  the  ground  of  its  

maintainability but even on the merits of the matter.  

12. Having  heard  the  counsel  for  the  parties  and  

considering  the  merits  of  the  arguments  advanced  by  

learned counsel for the contesting parties, it is evident from  

the record that the plaintiff/respondent first of all intended  

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to  purchase  the  suit  property  in  the  year  1982  and,  

therefore, published a notice in the daily “Matrbhumi” dated  

2.10.1982 whereby objections were invited in respect of the  

said plot. It is the case of the contesting respondent Nos. 1  

to  7  that  since  no  objections  were  received,  the  original  

plaintiff - Shri Vitthal Motiramji Mandale purchased it from  

the respondent No. 8/original defendant No.2 by registered  

sale  deed  dated  14.10.1982  for  a  consideration  of  Rs.  

17,000/-  but  even  as  per  the  case  of  the  contesting  

respondent No. 7, the appellant-trust resisted their action in  

taking  physical  possession  of  the  suit  land  as  they  were  

restrained  from putting  up fence  on the  land in  question  

which prompted them to immediately take action and they  

were compelled to file a suit for possession. Thus, even as  

per  their  own  case,  the  plaintiff/respondent  was  not  in  

possession of the plot in question.  In addition to this, the  

finding  recorded  by  the  Trial  Court  which  has  not  been  

interfered  either  by  the  First  Appellate  Court  or  the  High  

Court, the plaintiff/respondent was not in possession of the  

suit property in spite of the sale deed dated 14.10.1982 and  

the possession of the suit property was never delivered to the  

plaintiff predecessor or their legal heirs i.e. respondent Nos.  

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1 to 7.  It can logically be inferred that it is for this very  

reason that the plaintiff/respondent had published a notice  

in a daily newspaper “Matrbhumi” inviting objections before  

purchasing the property as in the normal circumstance, if a  

sale deed is executed by a private party holding title to the  

suit property in favour of another private party, the question  

of publishing a notice in the newspaper does not arise since  

the transaction of sale between two private parties do not  

normally  require  issuance  of   a  notice  in  the  newspaper  

inviting objections.  

13. Under  the  aforesaid  background,  the  contention  of  

learned  counsel  for  the  appellant  that  permission  should  

have been obtained from the Charity Commissioner under  

Sections  50  and  51  of  the  Bombay  Public  Trusts  Act  

assumes  significance  and  its  legal  implication  cannot  be  

overlooked.   When  the  disputed  plot  had  already  been  

dedicated in favour of the idol by virtue of a deed of gift, of  

which the appellant  is  a  trustee and the same was acted  

upon as possession also was delivered to the appellant trust,  

it was surely necessary for the plaintiff/respondent Nos. 1 to  

7/purchaser  of  the  suit  land  and  also  incumbent  upon  

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respondent  No.  8  /vendor  of  the  sale  deed  to  seek  

permission  from  the  Charity  Commissioner  before  a  sale  

deed could be executed in regard to the disputed plot and  

more so before a civil suit could be instituted. We, therefore,  

find substance in the contention of learned counsel for the  

appellant, that the dedication dated 31.1.1974 of the plot for  

charitable purpose in the nature of gift  having been acted  

upon as a result of which the possession also was delivered  

to the appellant-trust, the civil suit filed by the predecessor  

of  contesting  respondent  Nos.  1-7  for  possession  was  

expressly barred in terms of Sections 19, 20, 79 and 80 of  

the Bombay Public Trusts Act 1950.  

14. It  is  no  doubt  true  that  the  gift  deed  was  an  

unregistered instrument and no title could pass on the basis  

of the same under Section 123 of the Transfer of Property  

Act.   However,  when the  document  is  in  the  nature  of  a  

dedication of immovable property to God, the same does not  

require registration as it constitutes a religious trust and is  

exempt  from  registration.   We  have  taken  note  of  a  Full  

Bench decision of the Madras High Court  reported in AIR  

1927  Mad.  636  in  the  case  of  Narasimhaswami vs.  

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Venkatalingam and  others,  wherein  it  was  held  that  

Section 123 of the Transfer of Property Act does not apply to  

such a case for “God” is not a “living person” and so the  

transaction is  not  a  “transfer”  as  defined  by  Sec.5  of  the  

Transfer of Property Act.  Thus, a gift to an idol may be oral  

and it may be effected also by an unregistered instrument.  

But a different view has been taken in the case of  Bhupati  

Nath vs.  Basantakumari,  AIR  1936  Cal.  556;  Chief  

Controlling  Revenue  Authority vs.  Sarjubai,  AIR  1944  

Nag.  33.   In the  Full  Bench decision of  the  Madras High  

Court in the matter of Narasimhaswami (supra), it had been  

argued that a gift to idol of lands worth over Rs.100 requires  

registration and that a mere recital in the deed of gift which  

had been made, would not pass property.  But it had been  

held by the Full Bench that dedication of property to God by  

a Hindu does not require any document and that property  

can be validly dedicated without any registered instrument.  

In the aforesaid case, the deed of gift was not to a specified  

idol but to the Almighty Sri Kodanda Ramachandra Moorti.  

Dealing with this matter,  the Full  Bench took note  of  the  

observation in the matter of  Pallayya vs.  Ramavadhanulu,  

reported in 13 M.L.J. 364 wherein it  was held by Benson  

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and Bhashyam Aiyangar, JJ. that a declaration of trust in  

relation to immovable property for a public religious purpose  

is  not  governed  by  the  Indian  Trusts  Act  which  by  S.  1  

declares it inapplicable to religious trusts.  It was also held  

that S. 123 of the Transfer of Property Act has no application  

to dedication of land to the public as the section only applied  

to cases when the donee is an ascertained or ascertainable  

person by whom or on whose behalf a gift can be accepted or  

refused.   Taking notice  of  several  authorities,  it  was held  

that  no  document  was  necessary  for  the  dedication  of  

property to charity.  The Full Bench recorded as follows: “We  

have not been referred to any case where it has been held  

that an oral gift for a religious purpose requires registration.  

In  this  connection,  I  may  point  out  that  S.  123  of  the  

Transfer of Property Act only applies to transfer by one living  

person to another”.  S. 5 of the Act runs as follows: “In the  

following  sections,  ‘transfer  of  property’  means  an  act  by  

which  a  living  person  conveys  property,  in  present  or  in  

future, to one or more other living persons, or to himself and  

one or more other living persons and ‘to transfer property’ is  

to perform such act.  The learned Judges noted that a gift to  

God which in the said case was Sri Kodanda Ramachandra  

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Moorti cannot be held  to be  a gift to a living person.  It had  

been  argued  in  the  said  matter  that  an  idol  in  law  is  

recognised to be a juristic person capable of holding property  

and it must be held that a gift to an idol is a gift to a living  

person.  But it  was held therein that the Almighty by no  

stretch of imagination, legal or otherwise, can be said that  

the Almighty is a living person within the meaning of the  

Transfer  of  Property  Act.   The  learned Judges of  the  Full  

Bench saw no reason to differ from the Madras case cited in  

that matter where the law had been settled for several years  

as it was observed that the principle of ‘stare decisis’ should  

be applied unless there are strong reasons to the contrary as  

otherwise  it  would unsettle  many titles.   Concurring  with  

this  view,  Chief  Justice  Reilly  held  that  if  the  gift  is  not  

intended to a living person within the meaning of S. 5 of the  

Transfer  of  Property  Act,  the  document  would not require  

registration. This judgment surely has a persuasive value to  

the issue with which we are confronted in the instant matter  

and tilts the scale of justice in favour of the appellant-trust  

as  the  plot  was  essentially  dedicated  to  Sai  Baba  for  a  

charitable purpose, although the same was in the form of an  

unregistered deed of gift.  

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15. But even if we were to accept the contentious issue  or  

leave it open  and express no final opinion that the deed of  

gift executed in favour of the appellant-trust having not been  

registered, did not confer any title on the appellant-trust, it  

is  not  possible  to  brush  aside  the  contention  that  the  

respondent Nos.1 to 7-purchaser of the plot in question were  

legally bound by Section 51 of the Bombay Public Trusts Act  

1950  to  obtain  consent  of  Charity  Commissioner  before  

institution  of  the  suit  against  the  appellant  which  was  

admittedly in possession of the property after the gift deed  

was executed in its favour by the respondent No.8.  It would  

be relevant to quote Section 51 at this stage which lays down  

as follows:

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.  If  the  Charity  Commissioner  after  hearing  the parties and making such enquiries (if  any) as he thinks fit is specified that there  is  a  prima  facie case,  he  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.   The  order  of  the  Charity  Commissioner  refusing  his  consent  shall  

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be in writing and shall  state the reasons  for the refusal.”

16. Section  51  further  envisages  right  of  appeal  by  the  

affected  party  if  the  Charity  Commissioner  refuses  his  

consent to the institution of the suit.  Prior to this Section 50  

(ii)  already  envisages  that  where  a  direction  or  decree  is  

required to recover the possession of or to follow a property  

belonging or alleged to be belonging to a public trust, a suit  

by or against or relating to public trust or trustees or other  

although  may  be  filed,  consent  under  Section  51  of  the  

Charity Commissioner is clearly required under Section 51  

of the Act of 1950 which is quoted hereinbefore.

17. It  is  difficult  to  overlook  that  the  decree  

holder/respondent herein although had gone to the extent of  

publishing  a  notice  in  a  local  daily  “Matrbhumi”  inviting  

objections  indicating  that  he  intended  to  purchase  a  suit  

land, he conveniently ignored the provisions of Section 51 of  

the Bombay Public Trusts Act, 1950 and refused to apply to  

the Charity Commissioner before instituting a suit against  

the  appellant-trust  especially  when  the  possession  of  the  

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plot  was delivered to  the  appellant-trust  way back in  the  

year  1974  but  after  more  than  eight  years,  the  

vendor/respondent No.8 executed a sale deed in favour of  

the predecessor of respondent Nos.1 to 7.  The relevance of  

Section  51  of  the  Bombay  Trusts  Act,  1950  although  is  

clearly apparent and the appellant had also raised it before  

the High Court, the learned Single Judge of the High Court  

has not even addressed this important issue having a legal  

bearing on the right of the appellant to retain the plot, which  

although had been in the form of a deed of gift, in fact it was  

practically in the nature of dedication to the appellant-trust  

for  charitable  purpose  which  was  to  construct  a  ‘Bhakt  

Niwas’ for the devotees of Saibaba.   

18. Hence, even if it were to be held that the deed of gift in  

favour of the appellant-trust did not confer any title to the  

appellant-trust as the same was not registered and were also  

to be held that the same cannot be treated to be a dedication  

to any idol, as this point was neither pressed hard nor was  

argued threadbare and the Courts below have also not gone  

into this question, we do not wish to enter into this question  

further.  However,  the  fact  remains  that  in  view  of  the  

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possession of the property in question of the appellant-trust,  

it was obligatory on the part of the purchasers of the plot in  

question/respondent Nos.1 to 7 to seek permission from the  

Charity  Commissioner  under  Section  51  of  the  Bombay  

Trusts Act, 1950 to recover the property by filing a suit or  

initiating a proceeding.  In fact, in the matter of K. Shamrao  

and others vs.  Assistant Charity Commissioner reported  

in (2003) 3 SCC 563, a two Judge Bench of this Court had  

been  pleased  to  hold  that  the  Assistant  Charity  

Commissioner  under  the  scheme  of  the  Act  of  1950  i.e.  

Bombay Public Trusts Act, 1950 possesses all the attributes  

of a Court and has almost all the powers which an ordinary  

civil court has including the 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.   

Section  79  (1)  of  the  same  Act  also  lays  down  that  any  

question, whether or not a trust exists and such trust is a  

public trust or particular property is the property of such  

trust, is required to be decided under its statutory force by  

the Deputy or Assistant Charity Commissioner as provided  

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under the Act and Section 80 bars jurisdiction of the civil  

court  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.   

19. Thus, when the appellant-trust was in occupation and  

possession of the property in question then the respondent-

plaintiff  clearly  could not  have  approached the civil  court  

ignoring  the  specific  provision  under  the  Bombay  Public  

Trusts Act, 1950 which has laid down provisions to deal with  

disputes relating to the property of the trusts.  It also cannot  

be  overlooked  that  in  the  instant  case,  it  is  the  original  

owner of the property i.e. respondent No.8 who had executed  

a  deed  of  gift  in  favour  of  the  appellant-trust  and  

subsequently after ten years, executed a sale deed in favour  

of the predecessor of respondent Nos.1 to 7, who approached  

the Court for recovery of his property in which case it could  

perhaps have been available for the owner of the property to  

approach the civil court.  But in the case at hand, it is the  

purchaser of the property predecessor of Respondent Nos. 1-

7  who  filed  the  suit  for  possession  which  clearly  can  be  

construed as the  suit  for  recovery of  possession from the  

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appellant-trust which was in possession of the property.  In  

that view of the matter, it was the statutory requirement of  

the Bombay Public Trusts Act, 1950 to approach the Charity  

Commissioner before a suit could be instituted.   

20. In view of the aforesaid discussion and in the light of  

the  reasons  assigned  hereinbefore,  we  set  aside  the  

judgment  and  order  of  the  High  Court  as  also  the  First  

Appellate Court and restore the judgment and order of the  

Trial Court which had been pleased to dismiss the suit filed  

by  the  plaintiff-respondents  No.1  to  7.   The  Trial  Court,  

however,  had decreed the  suit  for  return of  the money of  

Rs.17,500/- to the predecessor of respondents No.1 to 7 and  

also interest was ordered to be paid on this amount by the  

vendor-respondent  No.8.   Since  the  respondent  No.8  had  

already been divested of his title to execute a sale deed in  

favour of respondent Nos.1 to 7 as he had already executed  

a deed of gift in favour of the appellant-trust for charitable  

purpose, we are of the view that in the interest of equity, he  

should not be saddled with the financial liability to return  

the amount of Rs.17,500/- with interest to the respondent  

Nos.1-7.  This amount, in our view, in the interest of equity  

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and fair play should be paid by the appellant-trust to the  

respondent Nos.1-7 on behalf  of  Respondent No.8, as this  

part of the decree which had been passed by the Trial Court  

in favour of respondent Nos. 1-7 had not been challenged by  

way of an appeal by the respondent No.8. But as we have  

held  that  the  appellant-trust  is  the  rightful  owner  of  the  

disputed plot  and the Respondent No.8 as a consequence  

has been held  to  have  been divested of  the  property,  the  

amount  paid  by  the  predecessor  of  Respondent  Nos.1-7,  

should be refunded to Respondent Nos.1-7 without interest  

and thus the decree of the Trial Court  shall be treated as  

modified to this extent. This appeal accordingly is allowed,  

without any order as to costs.  

………………………………….J (Markandey Katju)

………………………………….J           (Gyan Sudha Misra)

New Delhi, December 13, 2010

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