Pandit
Vasudev Vyas Vs. Board of Mgmt, S.S.J.S. Peeth & Ors [2006] Insc 236 (25 April 2006)
S.B.
Sinha & P.P. Naolekar S.B. Sinha, J :
The
Appellant herein is a Senior Professor and Dean of the Poddar Government Ayurvedic Medical College and Hospital in Mumbai. He was also
the Dean of Faculty of Ayurved in the University of Bombay.
The
dispute involved in this appeal, which arises out of a judgment and order dated
24th April, 2000 passed by a Division Bench of the High Court of Judicature at
Bombay in L.P.A. Stamp No. 11607 of 2000, centers round the appointment to the
post and seat of Jagadguru Shankaracharya/ Sole Trustee of the Respondent Trust.
The
Appellant contends that he as a disciple of Jagadguru Shankaracharya believes
that the spiritual head of well-known Math should be appointed according to
traditions, customs and usages recognized by law and he should be a great
scholar of Veda, Vedangas and Indian Philosophy.
He
should have also been initiated into sannyas by a Guru. One Sankeshwar Peeth was
established by Jagadguru Shankaracharya. The said Peeth is situated in the
District of Belgaum in the State of Karnataka. Another trust known as Karveer Peeth was established in the District
of Kolhapur in the State of Maharashtra.
Whereas
the Karveer Peeth is registered in terms of the Bombay Public Trust Act, the Sankeshwar
Peeth is registered separately. One Erande Swami is said to have been nominated
by his Guru to succeed him as a sole trustee in respect of the said Sankeshwar Peeth.
It is, however, contended that he expressed his inability to act as Shankaracharya
The Appellant contends that both the Sankeshwar Peeth and Karveer Peeth are
branches of a single entity known as Sankeshwar Karveer Peeth. The said
contention is denied and disputed by the Respondent.
It is,
however, not in dispute that the matter relating to appointment of a trustee in
relation to Karveer Peeth came to be considered by the Charity Commissioner in
terms of the provisions of the Bombay Public Trust Act. A proposal was made for
appointing Shri Ramchandra Narhar Kulkarni the Second Respondent herein as a Sankarcharya
of the said Peeth; objections whereto were filed. The Appellant herein was also
one of the objectors. By an order dated 11.11.1982, the Charity Commissioner appointed
the Second Respondent as sole-trustee of the Karveer Peeth in purported
exercise of its power under Section 47 of the Bombay Public Trust Act with the
condition that he should take sannyas before he enters upon the charge of the
sole- trustee of the Karveer Peeth stating:
"So
far as the point that the sole-trustee must be a sannyasi, there is no dispute
about it at all. It is a pre-requisition that whoever presides over this Peeth
he must be sannyasi." The Charity Commissioner although opined that there
could not be any dispute about the fitness and qualification of Shri Erande
Swami for being appointed as the sole-trustee, but proceed to observe that mere
learning was not enough under the Scheme to be appointed as a sole trustee of
the Peeth and his name could not be considered. In fact the name of Shri Kulkarni
was reconsidered although he had withdrawn his claim.
A
First Appeal being First Appeal No. 166 of 1983 was preferred thereagainst by
the Appellant, Respondent Nos. 4 and 5 herein. The said appeal was dismissed by
an order dated 20th
January, 2000. A
Letters Patent appeal was preferred thereagainst by the Appellant which has
been dismissed by reason of the impugned judgment dated 24.4.2000.
In
this appeal, we are concerned with a short question, viz., as to whether in
terms of the Scheme for the Management and Administration of the Public Trust Shri
Swami Jagadguru Shankarcharya Peeth, Kolhapur, the Respondent No. 2 could have been appointed as a sole trustee.
It is
the contention of the Appellant herein that at all material point of time, a
litigation was pending in the State of Karnataka culminating in Regular First Appeal No. 143 of 1982 before the High
Court of Karnataka at Bangalore. The said First Appeal arose out of
a judgment and order dated 27.2.1982 passed in OS No. 8 of 1972. In the said
judgment, inter alia, the following issues were framed:
-
"Whether
the Plaintiff proves that the succession to the office of the Head of Sankareshwar
Karvir Math is governed by customs and practice as alleged in para (3) of the
Plaint?
-
Whether the
Plaintiff proves that the Second defendant was validly dismissed by Shri Guruswami?
-
If so whether
the second defendant lost all his rights and privileges as Adhikari Shishya?
-
Whether the
Plaintiff proves that the 1st defendant was validly dismissed by Shri Guruswami
Shirolkar on or about 8.9.1958?
-
If so, whether
the 1st defendant lost all his rights and provisions as Adhikari Shishya?
-
Whether the
Plaintiff proves that he was initiated as Adhikari Shishya on or about
15.10.1958 as alleged in para (o) of Plaint?
-
Whether the
Plaintiff proves that he is entitled to the office of the trustees of the Math
and the suit properties and to the Management thereby?
-
Whether the
plaintiff proves the alleged last will and testament of 15.10 of Shri Guruswami
Shirolkar?
-
If so, whether
the 1st defendant proves that the will is void and does not affect his
interests?
-
Whether the Plaintiff proves that
the 1st defendant is in illegal and unauthorized possession of the suit
properties?
-
Whether the 1st defendant
establishes that from 1.7.1957 he became the Shankaracharya Jagadguru and the
rightful owner and trustee of the Math and the suit properties as contended by
him?
-
Whether 1st defendant shows that Shri
Guruswami Shirolkar had ceased to be the Jagadguru on or about 15.10.1958?
-
Whether the Plaintiff is entitled
for the declaration sought?
-
Whether Plaintiff is entitled to get
possession of the suit properties?
-
To what reliefs are parties
entitled?" The said appeal was allowed inter alia stating:
"In
these circumstances we have no hesitation in reversing the finding of the trial
court that the dismissal of the first defendant in the year 1958 was illegal
and void. We, therefore, hold that first defendant was dismissed in September,
1958 by a valid order and he ceased to be Adhikari Shishya thereafter.
If the
dismissal of first defendant was valid there can be no doubt that Guruswami was
competent to initiate first plaintiff as Adhikari Shishya which he did on 15th October, 1958.
Plaintiff,
therefore, became a valid Adhikari Shishya of Shirolkar Swami and consequently
on the death of Shirolkar Swami Plaintiff was entitled to succeed to him as Shankaracharya
of Sankeshwar Karbir Mutt and is also entitled to take possession of the
properties of the Mutt." A notice was issued by this Court on 18.9.2000
having regard to the said contention of the Appellant wherein it was noticed:
"It
is pointed out by learned senior counsel appearing on behalf of the petitioner
that a specific clause in the Scheme of 1963 mentions that there is a pending
litigation and that the person who would be declared by the civil court in the
pending litigation would be the sole trustee of the Trust and that there could
not be a second trustee like the respondent. Once R.F.A. 143/82 was decided on
23.9.92 in favour of the plaintiff in the suit by a Division Bench of the
Karnataka High Court allowing the appeal of the plaintiff, the respondent had
to be removed as a second trustee.
It is,
therefore, contended that in view of the said judgment there cannot be another Sankaracharya
for the Trust which is the subject matter of this SLP and that the Petitioner
is espousing the cause of the Sankaracharya of the plaintiff in that suit,
inasmuch as being a Sankaracharaya he would not pursue the matter in court.
It is
also contended that the petitioner could not draw the attention of the Division
Bench of the High Court to the relevant clause in the Scheme though a copy of
the said judgment of the Karnataka High Court was part of the record before the
Bombay High Court. Issue notice." We may notice that the contention that
both the Peeths are in effect and substance the branches of the same entity was
negatived by the High Court stating:
"The
contention has to be stated merely for the purpose of being rejected since
there is a categoric finding that the Karveer Trust is a separately registered
Trust under the Bombay Public Trust Act, bearing Registration no. A-1391 (Kolhapur).
It is
brought to our notice that the affairs of the Sankeshwar Trust are the subject
matter of some pending litigation in the Karnataka High Court, at Bangalore. In the first place, those
proceedings are not produced for our perusal. Secondly, assuming that there is
any controversy about the appointment of the trustee, at Sankeshwar, the Sankeshwar
Trust bears a separate Registration Number viz., A-3059 (Belgaum). Thirdly, there is no challenge to
the factum of the registration of the Karveer Trust as a separate legal entity
in Maharashtra under Registration No. A-1391 (Kolhapur).
Fourthly,
clause 5 of the Scheme of the Karveer Math specifically contemplates that the
presiding Swami at the Karveer Trust shall be the sole trustee of the
Trust." Mr. Srivastava, learned counsel appearing on behalf of the
Appellant, would submit that the High Court committed an error of record in
holding that the proceedings before the Karnataka High Court had not been
produced as the judgment of the Karnataka High Court formed part of the
records. A further error of record, according to Mr. Srivastava, has been
committed by the Division Bench of the High Court insofar as clause 5 of the
Scheme of the Karveer Peeth which specifically contemplates that the presiding
Swami at the Karveer Peeth shall be the sole trustee of the Trust, has not been
considered.
Mr. Chinmoy
Khaladkar, learned counsel appearing on behalf of the Respondents, on the other
hand, submitted that having regard to the fact that both the Peeths are
separately registered, they cannot be considered to be branches of the same
legal entity.
A
contention has specifically been raised before us that apart from the
aforementioned litigation culminating in the Regular First Appeal No. 143 of
1982 before the High Court of Karnataka at Bangalore, no other litigation was pending. The Appellant contended that the
litigation involving the question as to who would be appointed as a trustee was
pending before the Karnataka High Court. According to the Respondent, however,
no litigation was pending at any point of time before the courts at Karnataka
as regards entitlement of a person to be appointed as a sole-trustee in respect
of Sankeshwar Peeth.
Having
heard the learned counsel for the parties, we are of the opinion that it is not
necessary for us to go into the aforementioned question in detail, as the
principal question before us is as to who should be appointed as a sole trustee
of the Karveer Peeth.
It may
or may not be that both the Peeths were branches of the single entity but the
question arising herein would have to be considered as to who could be
appointed as to the sole trustee of the Karveer Peeth. For the said purpose, we
may notice Clause 5 of the Trust Deed which is as under:
"5.
The presiding swami Shri Narasimha Krishna Bharati Guru Vidya Shankar Barati
Swami Jagadguru Shri Shankaracharya Peeth, Karveer is and shall be the sole
trustee of the said trust subject to the decision of the court in pending
matters in which case the person decided by the court as a trust shall be the
trustee." The question as to whether both the Peeths are branches of a
common entity may also have to be determined having regard to Clause 5 of the
Scheme of Trust framed in the year 1963. We, however, refrain ourselves from
going into the said question and in particular the history thereof, as we are
of the opinion that the High Court did not address itself as regards the import
of Clause 5 of the Trust Deed.
The
question as regards appointment of a sole trustee is a matter of great
importance having regard to the provisions of the Bombay Public Trust Act. The
Charity Commissioner and consequently the appellate courts should have made all
endeavours to give effect to the desire of the founding trustees, if the said
provision is applicable. It is in that view of the matter, we are of the
opinion that the heirs and legal representative of original applicant may be
permitted to step into his shoes. We, however, do not intend to put our final
seal in this regard and the said question may be raised before the High Court.
We would,
however, assume that the two Peeths were separately registered but, in terms of
the trust deed, there cannot be any doubt whatsoever that Clause 5 of the
Scheme was relevant for the purpose of determination of the question as regards
the appointment of the sole trustee.
The
said question was of great relevance, even if it be held that the two Peeths
were registered separately and, thus, were two separate entities in the eyes of
law. It has not been disputed that the said judgment of the Karnataka High
Court formed part of the record before the courts below. Its relevance for the
purpose of interpreting Clause 5 of the Scheme cannot be disputed.
Whether
the said Clause fits in with the Scheme, as has been contended by the learned
counsel for the Respondent, is also required to be determined on the basis of
the materials on record.
We,
therefore, are of the opinion that the matter should be directed to be
considered afresh by the Division Bench of the High Court. We direct
accordingly.
The
learned counsel for the parties, however, state that Erande Swami is now aged
about 92 years. The Second Respondent is also aged person about 80 years and,
thus, the controversy should be put to an end as early as possible. We agree
with the learned counsel. We would, therefore, request the High Court to
consider the desirability of disposing of the matter, as expeditiously as
possible and preferably within a period of three months from the date of
communication of this order.
The
judgment of the High Court is set aside. The appeal is allowed.
The
matter is remitted to the High Court with the aforementioned directions.
However,
in the facts and circumstances of this case, there shall be no order as to
costs.
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