Virupakshayya
Shankarayya Vs. Neelakanta Shivacharya Pattadadevaru [1995] INSC 185 (21 March 1995)
Hansaria
B.L. (J) Hansaria B.L. (J) Ramaswamy, K. Hansaria, J.:
CITATION:
1995 AIR 2187 1995 SCC Supl. (2) 531 JT 1995 (3) 513 1995 SCALE (2)315
ACT:
HEAD NOTE:
1.The
respondent-plaintiff has placed himself within two horns of a bull and it is
not possible for him to avoid strike by one or the other. And the bull is no
ordinary one, as it has the backing and the blessings of no less powerful a
body than Privy Council of Jamkhandi State, within whose territorial
jurisdiction the suit property was situate, for the recovery of which the
respondent made his claim by filing the present suit on 4.2.1954. It is a pity
that despite the case of the appellant-defendant having received support from
the Privy Council, he came to lose on the same point, to start with, at the
hand of Civil Judge.
The
High Court, which ultimately upheld the view of the Civil Judge, should not
have allowed this piquant situation to prevail.
2. The
broad facts of the case at hand consist in filing of the present suit by
respondent No. 1 in 1954, seeking possession of the suit property, as validly
appointed Padadayya (Mathadhipati) of the math at Jamkhandi. The plaintiff
claimed this property on the assertion that he had been duly installed as Padadayya
on 30.1.1994, as a successor to Virupakshayya 1, who had died as early as 1903.
According
to him, defendant Nos. 1 and 2 had not been duly installed as Padadayyas; so
also, one Shivalingayya, who according to defendant No. 1 had been installed as
Padadayya in 1935 and had in turn nominated him as Padadayya in 1943.
There
is no dispute at all between the parties that if Shivalingayya had been validly
nominated and installed a.,;
Padadayya,
the plaintiff cannot succeed. And it is precisely this aspect of the case which
had come to be decided in favour of Shivalingayya by the Privy Council in an
earlier litigation began by one Andanayya in 1934, to which, of course, the
present plaintiff was not a party, but, according to him, it was the aforesaid Andanayya
who had installed him as Padadayya on 30.1.1944.
3.Now,
If the present suit has to be regarded as one for possession of suit property simpliciter,
as is the prayer in the plaint, it would be hit by Section 50 read with 51 of
the Bombay Public 'Trusts Act, 1950 (the Act). To save this blow by the bull, Shri
Wad, appearing for the respondent No.1, first urged that the suit was, really
not for possession simpliciter but was for declaration of the status of the
plaintiff as Padadayya and prayer for possession may be treated as
consequential relief But, if the present be taken as a suit for declaration,
then it was hopelessly barred, because the declaration sought is that the
plaintiff had become Padadayya after Virupakshayya had died in 1903. As the
suit was filed in 1954 it was apparently much beyond the time. Faced with this
situation, Shri Wad's effort was to convince us that the suit is not hit by
Sections 50 and 51 of the Act, 4. Let it be seen whether this contention can be
accepted. Section 50 of the Act deals with suits relating with public trusts.
516
The relevant part of this section reads as under :
"In
any case- (i) xxx xxx xxx (ii) where a declaration is necessary that that a
particular property is a property belonging to a public trust or where a
direction is required to recover the pos- session of such property or the
property or proceeds thereof from any person including a person holding
adversely to the public trust.
(iii) xxx
xxx xxx The Charity Commissioner or two or more persons having obtained the
consent in writing of the Charity Commissioner as provided in Section 51 may
institute a suit..... to obtain a decree for any of the following reliefs :
(a) an
order for the recovery of the pos- session of such property or proceeds
thereof, xxx xxx xxx Provided that no suit claiming any of the reliefs
specified in this section shall be instituted in respect of any public trust
except in conformity with a provision thereof.
xxx xxx
xxx" (Emphasis ours)
5.
Section 51 deals with giving of consent by the Charity Commissioner for the
institution of suit.
6. Shri
Wad contends that clause (ii) applies only when recovery of possession is
sought from person holding it adversely to the public trust, which is not the
case at hand. This contention is sought to be advanced on the basis of what was
held by this Court in Gollaleshwar Dev v.
Gangawwa
KomShantayya Math, (1985) Suppl.3 SCR 646, in which case the view taken by a
Full Bench of the Mysore High Court in case of the aforesaid parties as
reported in AIR 1972 Mysore 1 was not approved.
7.The
contention is misconceived, because in the aforesaid case this Court was called
upon to decide whether two or more trustees of a public trust (the math at hand
is also a public trust), could file suit for possession of property belonging
to public trust from a person holding it adversely to the trust. The Mysore
High Court took the view that the expression "a person having
interest", of which mention has been made in Section 51 (1), did not
include the trustees, because of the definition of this expression in Section
2(10) of the Act. This Court, however, did not endorse the view of the Full
Bench by observing that the definition in Section 2(10) was an inclusive one
and there was no lawful justification to exclude trustees from the same. As in
that case the suit was filed to recover possession from a person holding
adversely to the trust, about which also mention has been made in clause (ii)
of Section 50, it does not follow that clause (ii) vasualises suit for recovery
of possession only from a person holding adversely to the public trust, as it
has clearly stated about recovery of possession "from any person".
According to us, this would include a person who may not claim adversely to the
public trust, as is the case of defendant No. 1 in this case.
8. It
is because of this factual and legal 517 position that we have stated that the
plaintiff is within two horns of the bull. If to take care of the restriction
imposed by Section 50 read with 51 of the Act, the nature of the suit is sought
to be changed to be one of declaration with consequential relief of possession,
it would be hit by limitation.
9. The
above apart, what is more material is that the Privy Council of Jamkhandi State
having held in an earlier proceeding that Shivalingayya was duly nominated and
installed as Padadayya inasmuch as he had been so nominated by Shankarayya
before his marriage, which is the only ground on which Shivalingayya's nomination
has been held to be vitiated in the present proceedings by the High Court, we
are of the frim view that the contrary conclusion arrived at in the present
proceedings in favour of plaintiff does not deserve to be confirmed. It may be
that principle of res judicata has no application, despite what has been stated
in Explanation VI of Section II C.P.C., inasmuch as in the earlier proceeding
the present plaintiff was not a party and Andarayya (the plaintiff therein) had
not claimed possession of the property as Padadayya but as Charanti contending
that as the office of Padadayya was lying vacant because of invalidity in the
nomination and the installation of Shivalingayya, he had stepped into shoes of Padadayya.
There
is, however, no denial that the foundation of the case of Andanayya was the infrimity
in the nomination and the installation of Shivalingayya as Padadayya; and it is
precisely this which the Privy Council had not accepted.
10. In
the aforesaid premises, the judgment of the Privy Council, even though the same
did not bind the plaintiff on the principle of res judicata, was definitely a
relevant circumstance to be taken note of, because of what has been stated in
Section 42 of the Evidence Act. What we, however, find is that the High Court had
only referred to the earlier decision without examining the question as to
whether law permitted a contrary view to be taken on the self same issue.
According to us, the issue having been finally determined at the highest level,
the same could not have been re-examined, which exercise, to start with, was
undertaken even by a Civil Judge,
11. Shri
Wad contends that even the defendents did not take such a stand throughout the
litigation, which is apparent from the fact that they tried to establish their
case de novo by leading fresh evidence. Though this is so, we are of the view
that the defendents were wrongly advised and we have to set right the dent
caused to the decision of the Privy Council. The only way available to is in
this proceeding to do so is to restore the view that taken by that high powered
Committee.
12. We
hold that plaintiff could not have taken stand in the present proceeding that Shivalingayya's
nomination and installation as Padadayya was invalid, which would render his
entire exercise futile and one akin to shadow boxing.
It may
also be stated that his suit was either barred by limitation or was hit by the
provisions contained in Section 50 read with 51 of the Act.
13.
We, therefore, allow the appeal, set aside the impugned judgment of the High
Court, with the result that the suit filed by respondent No. 1 stands
dismissed. In the 518 facts and circumstances of the case, we make no order as
to costs.
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