Church of North of India Vs. Lavajibhai Ratanjibhai &
Ors  Insc 302 (3
Singh & S.B. Sinha
I.A. Nos. 5 to 10 of 2005 (Application for impleading party) S.B. SINHA, J:
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
basic fact of the matter is not much in dispute.
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.
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 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.
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.
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
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.
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
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 :
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 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:
learned Civil Judge by judgment and decree dated 31.3.1984 decreed the suit;
findings in support whereof would be noticed a little later.
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
the Appellant is before us.
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.
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 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.
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
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.
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.
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.
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.
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, 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.
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.
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.
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.
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.
REGISTRATION ACT, 1860
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
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
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
13 of Societies Registration Act provides for dissolution of societies and
adjustment of their affairs. It reads as under:
Provision for dissolution of societies and adjustment of their affairs 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:
required 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:
consent 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
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.
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.
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
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.
13 reads as under:
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
the performance of the specific object for which the trust was created has
become impossible or impracticable, or
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."
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:
whether a trust exists and whether such trust is a public trust,
any property is the property of such trust,
the whole or any substantial portion of the subject-matter of the trust is
situate within his jurisdiction,
names and addresses of the trustees and manager of such trust,
mode of succession to the office of the trustee of such trust,
origin, nature and object of such trust,
amount of gross average annual income and expenditure of such trust, and
any other particulars as may be prescribed under sub-section (5) of 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.
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.
(1A) of Section 22 reads thus:
Where the change to be reported under sub- section (1) relates to any immovable
property, the trustee shall, alongwith the report, furnish a 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:
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.
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.
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:
to enter on and inspect or cause to be entered on and inspected any property
belonging to a public trust;
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;
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.
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 relating to public trusts which reads
In any case
it is alleged that there is a breach of a public trust,
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
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
order for the recovery of the possession of such property or proceeds thereof,
removal of any trustee or manager,
appointment of a new trustee or manager,
vesting any property in a trustee,
direction for taking accounts and making certain inquiries,
declaration as to what proportion of the trust property or of the interest therein
shall be allocated to any particular object of the trust,
direction authorizing the whole or any part of the trust property to be let,
sold, mortgaged or exchanged,
settlement of a scheme or variations or alterations in a scheme already
such further or other relief as the nature of the case may require;
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
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:
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.
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
order of the Charity Commissioner refusing his consent shall be in writing and
shall state the reasons for the refusal.
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.
every suit filed by persons having interest in any trust under section 50, the
Charity Commissioner shall be a necessary party.
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.
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:
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 Principles for determination:
question as regard ouster of a jurisdiction of a Civil Court must 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.
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
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 :
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.
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.
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.
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
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.
Where the particular Act contains no machinery for refund of tax collected in
excess of constitutional limits or illegally collected, a suit lies.
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.
exclusion of the jurisdiction of the civil court is not readily to be inferred
unless the conditions above set down apply.
also Rajasthan State Road Transport Corporation and Another vs. Krishna Kant
and Others (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 [2005 (4) SCALE 116].
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
Assistant Charity Commissioner and Others, (2004) 3 SCC 137]
OF BPT ACT:
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.
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.
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.
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.
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
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.
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 so till the
3rd Ordinary Synod of C.N.I. which was to be held in 1977.
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.
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.
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.
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:
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.
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 and their associates was the
subject matter of the suit.
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.
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.
accepted that the defendant No. 5 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
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.
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.
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.
aforementioned premise, plaintiffs had prayed for the following reliefs:
It may please be declared that the former First District Church of Brethren has
ceased to exist.
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
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.
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.
The defendants Nos. 1 to 4 may be directed to pay to the plaintiffs the costs
of this suit."
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.
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
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.
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.
suit in question also does not conform to the provisions of Section 13 of the
Societies Registration Act.
20 of the Act provides that the societies enumerated therein can only be
registered under the said Act.
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 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.
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.
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.
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:
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:
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
repugnancy would be inoperative.
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.
fact the Appellants have categorically admitted that the Memorandum of
Association of the Society itself became the deed of trust.
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 (Now Delhi
Administration) and another, AIR 1962 SC 458, Dharam Dutt Orphans India and
Others, (2003) 8 SCC 413, paras 21 and 22] [AIR 1965 SC 338], this Court did
not permit a new question to be raised.
this case also, a new contention has been raised contrary to the pleadings that
the society and the trust are different entities.
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).
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.
can be brought about only in terms of Section 22 thereof.
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.
defendants are disputing that any such change in accordance with law 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
31 bars a suit to enforce a right on behalf of a public trust.
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.
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.
(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.
(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.
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 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.
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.
again the question as regard existence of a trust is a matter which squarely
falls within the purview of Section 79 of the Act.
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.
[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.
[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.
Gollaleshwar Dev and Others vs. Gangawwa Kom Shantayya Math and Others [(1985)
4 SCC 393], it was held:
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.
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.
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.
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
at this stage notice the decisions relied upon by the learned counsel for the
1570] a composite suit for injunction was filed claiming two different reliefs,
injunction restraining the levy of contributions and audit fees under Act II of
injunction restraining the levy of contributions and audit fees under Act XIX
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.
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.
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.
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.
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.
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.
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.
3 SCC 563], this Court held:
of the Assistant Charity Commissioner are predominantly adjudicatory.
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." Yadav (Dead) By LRs.
[(1978) 1 SCC 669], this Court observed:
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.
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." 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. 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 questions of title has been raised.
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.
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.
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.
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.
applications for impleadment filed by various persons, in view of the
aforementioned findings, need not to be dealt with separately.
the reasons aforementioned, we do not find any merit in this appeal which is
dismissed accordingly. No costs.