Sainath Mandir Trust
Vs Vijaya & Ors.
Judgment
GYAN SUDHA MISRA, J.
1.
This
appeal by special leave has been filed against the Judgment and Order dated
27.03.2003 passed by the High Court of Judicature at Bombay, Bench at Nagpur,
in Second Appeal No. 246 of 1990 whereby the appeal was dismissed on merit.
Consequently, the judgment of reversal passed by the Additional District Judge,
Amaravati allowing the appeal and setting aside the judgment and order of the
Trial Court which had dismissed the suit of the plaintiff/respondent, was
upheld.
2.
The
origin of this appeal at the instance of the defendant/appellant herein
emanates from a Regular Civil Suit No. 166 of 1983 which had been filed by the
deceased plaintiff- Shri Vitthal Motiramji Mandale who is now represented by
his legal heirs Respondent Nos. 1-7, for possession and damages valued at Rs.
17,500/- in the Court of Civil Judge Senior Division, Amaravati, against the appellant
- Sainath Mandir Trust which is a registered public trust within the provisions
of Bombay Public Trusts Act 1950. The suit land comprises of a plot bearing No.
57,arising out of original fields bearing Survey No. 33, situated at Saturana
in the outskirts of Amravati Township. As per the case of the defendant/appellant
herein, which admittedly is a public trust, the suit property was dedicated to
the idol of Saibaba by the respondent No. 8 /original defendant No.2 by way of
a gift deed executed way back on31.1.1974 which according to the appellant's
version, was immediately acted upon as possession was also handed over to the
appellant-trust which is in occupation of the suit property till date. It is the
specific case of the defendant/appellant that the suit plot was donated by way of
a gift deed executed by the original defendant No.2 /respondent No. 8 herein
Shri Vasant Mahadeo Fartode on31.1.1974 essentially for building a residential accommodation
for devotees of the Saibaba Mandir run by the appellant-trust. Thus, by virtue
of the gift deed, the admitted owner respondent No. 8 / original defendant No.
2Shri Vasant Mahadeo Fartode was divested of the title over the suit property
after he executed the gift deed and also delivered possession of the plot to
the appellant-trust. Hence, as per the case of the appellant Sainath Mandir Trust,
the gift deed dated 31.1.1974 was duly acted upon since the appellant
immediately came in possession of the suit property and continues to remain in
possession of the same till date ever since 1974.
3.
As
against the aforesaid case of the appellant, the predecessor of the contesting
respondent Nos. 1-7, late Shri Vitthal Motiramji Mandale who is now legally
represented by the respondent Nos. 1-7, intended to purchase the suit property
and therefore issued a notice in daily "Matrbhumi" dated 2.10.1982
thereby inviting objections in respect of the said plot. Further, case of the
respondent Nos. 1 to 7 is that no objections were received in response to the
notice as a result of which the predecessor of respondent Nos. 1 to 7 i.e. late
Shri Vitthal Motiramji Mandale purchased the plot from the respondent No.
8-Shri Vasant Mahadeo Fartode by a registered sale deed dated 14.10.1982 for a
consideration of Rs. 17,000/-. As per the plaintiff/respondent's case, they also
claimed to have immediately taken possession of the said property after
execution of the sale deed and it is further averred that when the contesting
respondents wanted to put fence around the said plot, then on 4.12.1982they
noticed a board on the disputed plot which was put up by the appellant-trust on
which it was mentioned that the respondent No. 8/defendant No.2 had given the
said plot to the appellant-trust for construction of a residential accommodation
for the devotees of Saibaba Mandir. In view of this notice, the respondents
sent a notice on 7.12.1982 to the appellant-trust to remove the board and
further do not obstruct to the fencing of the suit plot which was responded by
the appellant-trust stating that they are in possession of the suit plots since
31.1.1974 and are owners of the plot in question and cannot be directed to
vacate.
4.
The
respondent felt seriously aggrieved with this response and hence a Regular
Civil Suit No. 166 of 1983 was filed by the predecessor of the contesting
respondent Nos. 1to 7 - Shri Vitthal Motiramji Mandale for possession and damages
valued at Rs. 17,500/- in the Court of Civil Judge, Senior Division, Amaravati.
The appellant-trust contested the suit by filing a written statement on
19.12.1983asserting their ownership and possession over the suit property since
31.1.1974. It was stated therein that the suit land had already been gifted to
the appellant-trust by gift deed dated 31.1.1974 which was properly executed
and validly attested and had also been acted upon by the parties concerned. It
was, therefore, submitted therein that by virtue of the gift deed respondent
No. 8/defendant No. 2had no subsisting title or ownership as regards the suit property
and as such he was not entitled to subsequently execute any sale deed in
respect of the suit property.
5.
The
learned IInd Joint Civil Judge, Junior Division, Amravati who tried the suit
was finally pleased to dismiss the suit and denied the relief regarding the
recovery of possession of the said plot. However, the suit was decreed to the
extent of damages of Rs. 17,500/- to be paid to the respondent/original plaintiff
by the respondent No.8/original defendant No.2 within 30 days along with the costs
of the suit. It was further directed that the respondent No. 8/original
defendant No.2 shall pay future interest on the principal amount of Rs.
17,000/- from the date of filing of the suit till its full realization at the
rate of Rs. 10/- percent per annum to the predecessor of respondent Nos. 1 to
7herein as it was held that respondent No. 8 could not execute the sale deed in
favour of a third party i.e. the predecessor of respondent Nos. 1 to 7 herein
as he had already executed a gift deed in favour of the appellant way back on
31.1.1974 which was acted upon as a result of which the appellant-trust was
already in possession of the suit land. Thus, the Trial Court was pleased to
dismiss the respondent/ original plaintiff's claim in so far as the recovery of
possession of the suit plot is concerned.
6.
The
predecessor of the plaintiff/respondent Nos. 1 to 7assailed the judgment and
order of the Trial Court before the Court of learned District Judge, Amaravati and
the appellant-trust also filed cross-objections challenging the findings of the
trial court in so far as the validity of the gift deed executed in favour of
the appellant was concerned. It had been submitted therein that the gift dated
31.1.1974was for a price below Rs. 100 and it was in favour of the deity and as
such was admissible; hence the Trial Court committed an error in holding that
the gift deed was not valid. The appellant therein had also contended that the
gift deed conferred a legal and valid title coupled with possession in favour
of the appellant-trust and hence the subsequent documents of sale deed claimed
to have been executed in favour of the plaintiff/contesting respondents ought
not to have been ignored as the vendor Shri Vitthal Motiramji Mandale was not
left with any title concerning the suit property. It was further pointed out from
various circumstances and evidence brought on record, that a fraudulent
collusion exited between the original plaintiff and the defendant Nos.1 and 2
i.e. vendor and the vendee and the alleged sale deed did not confer any title
to the vendee since the vendor had already executed a gift deed in favour of
the appellant-trust almost 8 years prior to execution of the gift deed which
was acted upon and possession was delivered to the appellant-trust. However,
the First Appellate Court being the Court of Additional District Judge, Amaravati
was pleased to allow the appeal of the plaintiff/respondents and rejected the
cross-objections filed by the appellant-trust.
7.
Being
aggrieved by the Judgment and Order dated4.5.1990 passed by the Additional District
Judge, Amaravati, the appellant-trust was constrained to prefer a Second Appeal
No. 246 of 1990 before the High Court of Judicature at Bombay, Nagpur Bench,
Nagpur wherein the substantial questions of law, inter alia, was raised that
the civil suit filed by the plaintiff/respondent was expressly barred in terms
of the provisions of Sections 19, 20, 79 and80 of the Bombay Public Trusts Act
1950. The substantial question of law was further raised whether the gift deed dated
31.1.1974 being an Act of "Dedication" of the suit property by the
respondent No. 8 to the deity which is not a "living person" would
not be "Dedication" of property in terms of Section 123 of the
Transfer of Property Act and hence whether the provisions of the same are not
applicable to the deed of gift which had been executed in favour of the deity.
Substantial question was also raised whether the suit could be entertained
without permission of the Charity Commissioner under Sections 50 and 51 of the
Bombay Public Trusts Act 1950 which had not been obtained by the original
plaintiff prior to filing of the suit. The gift deed dated31.1.1974 having been
acted upon in pursuance of which the appellant-trust came in possession of the
said property since 31.1.1974 and continues to be in possession till date, could
not have been ordered to be restored in favour of the plaintiff/respondent
predecessor as the sale deed dated14.10.1982 which was subsequently executed by
the vendor, could not confer any right and title to the respondent /purchaser
as the plot in question had already been dedicated to the idol of which the
appellant is the trust.
8.
The
learned single Judge of the High Court of Bombay at Nagpur Bench, Nagpur,
however, was pleased to dismiss the appeal as it was held that Section 123 of
the Transfer of Property Act lays down the procedure in which the property can
be transferred by way of a gift and it is necessary that the said document
should have been registered and it should have been signed by the donor
attested by two witnesses. It was held that none of the requirements have been
complied and, therefore, the appeal against the judgment and order of the
Additional District Judge, Amaravati was not fit to be entertained.
Consequently the appeal stood dismissed against which this appeal by special leave
has been filed by the appellant -Sainath Mandir Trust and the special leave
having been granted in favour of the appellant, this appeal has come up before
us for hearing and its adjudication.
9.
In
so far as the contention of the plaintiff/respondent in support of the Judgment
and Order of the High Court as also First Appellate Court is concerned, the
arguments advanced before the Courts below have been reiterated which was
accepted by the High Court which held that the gift deed executed in favour of
the deity of which the appellant is a trustee, conferred no right and title in
favour of the deity and therefore the donor had every right to execute subsequently
a sale deed in favour of the predecessor of the contesting respondents in view
of which the suit filed by the predecessor of contesting respondent Nos. 1 to 7
was rightly decreed in their favour by the First Appellate Court being the
Court of Additional District Judge which was upheld by the High Court.
10.
Learned
counsel for the contesting defendant/the appellant-trust on its part submitted
at the threshold that the gift deed which was executed in favour of the deity clearly
reveals that the same is a "Dedication" to an idol and not a
"living person" by the respondent No. 8/original defendant No. 2 and
thus the same can be said to be a valid transfer in terms of Section 123 of the
Transfer of Property Act. Elaborating on this aspect, it was submitted that the
idea, intention and the feelings of the donor behind the gift deed has not been
taken into consideration and going by the nomenclature of the document, if the
intention of the donoris appropriately construed from the words of the gift
deed, the same will clearly and unambiguously suggest that the defendant
No.2-Vasant Fartode who was a devotee of Saibaba had dedicated the said
property to the idol for the construction of `Bhakta Niwas'. This issue was
specifically raised in the cross-appeal filed before the District Judge and was
reiterated in the Second Appeal. The gift in question was a `dedication to the
idol' and hence the same was a valid transfer in favour of the appellant-trust
and, therefore, there was no question of any registration of the same, since
the gift deed was executed on 31.1.1974 and was clearly acted upon as
possession was also handed over to the appellant-trust. The finding of the Trial
Court would clearly demonstrate that the appellant was in possession of the
said property in question and the same is an undisputed position. The very fact
that the suit for possession was required to be filed by the
respondent/original plaintiff further substantiates the fact that the gift deed
was acted upon and possession was delivered to the appellant-trust.
11.
Supplementing
the aforesaid arguments, it was still further contended that in view of the
"dedication" of the property to the idol of which the appellant is a
trustee, any suit for possession against such property could not have been
filed without the requisite permission of the Charity Commissioner under
Sections 50 and 51 of the Bombay Public Trusts Act 1950. A mere perusal of Section
50 Sub-Section (2) of the Bombay Public Trusts Act specifically indicates that
"where a direction or decree is required to recover the possession or to
follow property belonging `or alleged' to be belonging to a public trust"
and a dispute arises in regard to the same, permission of the Charity Commissioner
was clearly a necessary legal requirement. Hence, it was submitted that as the
appellant-trust is in possession of the plot in question and the relief of possession
was sought by plaintiff/respondent, the requisite permission under Sections 50
and 51 became mandatory before filing such a suit, failing which the suit ought
to have been rendered as not maintainable. The requirement or necessity of such
permission is the basic requirement at the very threshold and it is
impermissible for the Court to enter into the merits of the matter vis-`vis the
validity of the transfer etc. in such a suit which does not comply with the basic
requirement of obtaining such a permission. Hence, it was contended that First
Appellate Court as also the High Court have clearly erred in going into the
issues of title and validity of the transfer which are only subsequent issues which
would arise only if the suit qualified the test of Sections 50 and 51 of the
Act. The Courts below also failed to take into consideration that the suit was
bad for non-joinder of necessary parties in terms of Order XXXI Rule 2 of C.P.C.
as all the trustees of the Trust were not joined as parties and hence the Trial
Court was clearly justified in dismissing the suit as not maintainable for want
of necessary permission of the Charity Commissioner under Sections 50 and 51 of
the Act as well as non-joinder of all the trustees in terms of Order XXXI Rule
2 of the C.P.C. It was also submitted that the appellant-trust has been in uninterrupted
possession of the suit land since 31.1.1974and the suit property in question
had already been included and recorded by the Charity Commissioner as a
property of the trust and the Change Report to that effect was required in
terms of Section 22 of the Bombay Public Trusts Act. It was finally submitted
that the property in question was gifted for a pious purpose of construction of
`Bhakta Niwas' and, therefore, considering the aforesaid factors and the comparative
hardships to the parties, the suit for possession is not only fit to be
dismissed on the ground of its maintainability but even on the merits of the
matter.
12.
Having
heard the counsel for the parties and considering the merits of the arguments
advanced by learned counsel for the contesting parties, it is evident from the
record that the plaintiff/respondent first of all intended to purchase the suit
property in the year 1982 and, therefore, published a notice in the daily
"Matrbhumi" dated2.10.1982 whereby objections were invited in respect
of the said plot. It is the case of the contesting respondent Nos. 1to 7 that
since no objections were received, the original plaintiff - Shri Vitthal
Motiramji Mandale purchased it from the respondent No. 8/original defendant
No.2 by registered sale deed dated 14.10.1982 for a consideration of
Rs.17,000/- but even as per the case of the contesting respondent No. 7, the
appellant-trust resisted their action in taking physical possession of the suit
land as they were restrained from putting up fence on the land in question which
prompted them to immediately take action and they were compelled to file a suit
for possession. Thus, even as per their own case, the plaintiff/respondent was
not in possession of the plot in question. In addition to this, the finding
recorded by the Trial Court which has not been interfered either by the First
Appellate Court or the High Court, the plaintiff/respondent was not in
possession of the suit property in spite of the sale deed dated 14.10.1982 and the
possession of the suit property was never delivered to the plaintiff
predecessor or their legal heirs i.e. respondent Nos.1 to 7. It can logically
be inferred that it is for this very reason that the plaintiff/respondent had
published a notice in a daily newspaper "Matrbhumi" inviting
objections before purchasing the property as in the normal circumstance, if a sale
deed is executed by a private party holding title to the suit property in
favour of another private party, the question of publishing a notice in the
newspaper does not arise since the transaction of sale between two private
parties do not normally require issuance of a notice in the newspaper inviting
objections.
13.
Under
the aforesaid background, the contention of learned counsel for the appellant
that permission should have been obtained from the Charity Commissioner under Sections
50 and 51 of the Bombay Public Trusts Act assumes significance and its legal
implication cannot be over looked. When the disputed plot had already been dedicated
in favour of the idol by virtue of a deed of gift, of which the appellant is a
trustee and the same was acted upon as possession also was delivered to the
appellant trust, it was surely necessary for the plaintiff/respondent Nos. 1
to7/purchaser of the suit land and also incumbent upon respondent No. 8 /vendor
of the sale deed to seek permission from the Charity Commissioner before a sale
deed could be executed in regard to the disputed plot and more so before a
civil suit could be instituted. We, therefore, find substance in the contention
of learned counsel for the appellant, that the dedication dated 31.1.1974 of
the plot for charitable purpose in the nature of gift having been acted upon as
a result of which the possession also was delivered to the appellant-trust, the
civil suit filed by the predecessor of contesting respondent Nos. 1-7 for
possession was expressly barred in terms of Sections 19, 20, 79 and 80 of the
Bombay Public Trusts Act 1950.
14.
It
is no doubt true that the gift deed was an unregistered instrument and no title
could pass on the basis of the same under Section 123 of the Transfer of
Property Act. However, when the document is in the nature of a dedication of
immovable property to God, the same does not require registration as it
constitutes a religious trust and is exempt from registration. We have taken
note of a Full Bench decision of the Madras High Court reported in AIR1927 Mad.
636 in the case of Narasimhaswami vs. Venkatalingam and others, wherein it was
held that Section 123 of the Transfer of Property Act does not apply to such a
case for "God" is not a "living person" and so the transaction
is not a "transfer" as defined by Sec.5 of the Transfer of Property
Act. Thus, a gift to an idol may be oral and it may be effected also by an
unregistered instrument. But a different view has been taken in the case of
Bhupati Nath vs. Basantakumari, AIR 1936 Cal. 556; Chief Controlling Revenue
Authority vs. Sarjubai, AIR 1944Nag. 33.
In the Full Bench
decision of the Madras High Court in the matter of Narasimhaswami (supra), it
had been argued that a gift to idol of lands worth over Rs.100 requires registration
and that a mere recital in the deed of gift which had been made, would not pass
property. But it had been held by the Full Bench that dedication of property to
God by a Hindu does not require any document and that property can be validly
dedicated without any registered instrument. In the aforesaid case, the deed of
gift was not to a specified idol but to the Almighty Sri Kodanda Ramachandra
Moorti. Dealing with this matter, the Full Bench took note of the observation
in the matter of Pallayya vs. Ramavadhanulu, reported in 13 M.L.J. 364 wherein
it was held by Benson and Bhashyam Aiyangar, JJ. that a declaration of trust in
relation to immovable property for a public religious purpose is not governed
by the Indian Trusts Act which by S. 1declares it inapplicable to religious
trusts. It was also held that S. 123 of the Transfer of Property Act has no
application to dedication of land to the public as the section only applied to
cases when the donee is an ascertained or ascertainable person by whom or on
whose behalf a gift can be accepted or refused.
Taking notice of
several authorities, it was held that no document was necessary for the
dedication of property to charity. The Full Bench recorded as follows: "We
have not been referred to any case where it has been held that an oral gift for
a religious purpose requires registration. In this connection, I may point out
that S. 123 of the Transfer of Property Act only applies to transfer by one
living person to another". S. 5 of the Act runs as follows: "In the following
sections, `transfer of property' means an act by which a living person conveys
property, in present or in future, to one or more other living persons, or to
himself and one or more other living persons and `to transfer property' is to
perform such act. The learned Judges noted that a gift to God which in the said
case was Sri Kodanda Ramachandra Moorti cannot be held to be a gift to a living
person. It had been argued in the said matter that an idol in law isrecognised
to be a juristic person capable of holding property and it must be held that a
gift to an idol is a gift to a living person. But it was held therein that the
Almighty by no stretch of imagination, legal or otherwise, can be said that the
Almighty is a living person within the meaning of the Transfer of Property Act.
The learned Judges of
the Full Bench saw no reason to differ from the Madras case cited in that
matter where the law had been settled for several years as it was observed that
the principle of `stare decisis' should be applied unless there are strong
reasons to the contrary as otherwise it would unsettle many titles. Concurring
with this view, Chief Justice Reilly held that if the gift is not intended to a
living person within the meaning of S. 5 of the Transfer of Property Act, the
document would not require registration. This judgment surely has a persuasive
value to the issue with which we are confronted in the instant matter and tilts
the scale of justice in favour of the appellant-trust as the plot was
essentially dedicated to Sai Baba for a charitable purpose, although the same
was in the form of an unregistered deed of gift.
15.
But
even if we were to accept the contentious issue or leave it open and express no
final opinion that the deed of gift executed in favour of the appellant-trust
having not been registered, did not confer any title on the appellant-trust, it
is not possible to brush aside the contention that the respondent Nos.1 to
7-purchaser of the plot in question were legally bound by Section 51 of the
Bombay Public Trusts Act1950 to obtain consent of Charity Commissioner before institution
of the suit against the appellant which was admittedly in possession of the
property after the gift deed was executed in its favour by the respondent No.8.
It would be relevant to quote Section 51 at this stage which lays down as
follows: 51 (1) : "If the persons having an interest in any public trust
intend to file a suit of the nature specified in section 50, they shall apply to
the Charity Commissioner in writing for his consent. If the Charity
Commissioner after hearing the parties and making such enquiries (if any) as he
thinks fit is specified that there is a prima facie case, he may within a period
of six months from the date on which the application is made, grant or refuse
his consent to the institution of such suit. The order of the Charity Commissioner
refusing his consent shall 2 be in writing and shall state the reasons for the
refusal."
16.
Section
51 further envisages right of appeal by the affected party if the Charity
Commissioner refuses his consent to the institution of the suit. Prior to this
Section 50(ii) already envisages that where a direction or decree is required
to recover the possession of or to follow a property belonging or alleged to be
belonging to a public trust, a suit by or against or relating to public trust
or trustees or other although may be filed, consent under Section 51 of the Charity
Commissioner is clearly required under Section 51of the Act of 1950 which is
quoted hereinbefore.
17.
It
is difficult to overlook that the decree holder/respondent herein although had
gone to the extent of publishing a notice in a local daily
"Matrbhumi" inviting objections indicating that he intended to
purchase a suit land, he conveniently ignored the provisions of Section 51 of the
Bombay Public Trusts Act, 1950 and refused to apply to the Charity Commissioner
before instituting a suit against the appellant-trust especially when the
possession of the plot was delivered to the appellant-trust way back in the year
1974 but after more than eight years, the vendor/respondent No.8 executed a
sale deed in favour of the predecessor of respondent Nos.1 to 7. The relevance
of Section 51 of the Bombay Trusts Act, 1950 although is clearly apparent and
the appellant had also raised it before the High Court, the learned Single
Judge of the High Court has not even addressed this important issue having a
legal bearing on the right of the appellant to retain the plot, which although
had been in the form of a deed of gift, in fact it was practically in the
nature of dedication to the appellant-trust for charitable purpose which was to
construct a `Bhakt Niwas' for the devotees of Saibaba.
18.
Hence,
even if it were to be held that the deed of gift in favour of the
appellant-trust did not confer any title to the appellant-trust as the same was
not registered and were also to be held that the same cannot be treated to be a
dedication to any idol, as this point was neither pressed hard nor was argued
threadbare and the Courts below have also not gone into this question, we do
not wish to enter into this question further. However, the fact remains that in
view of the possession of the property in question of the appellant-trust, it
was obligatory on the part of the purchasers of the plot in question/respondent
Nos.1 to 7 to seek permission from the Charity Commissioner under Section 51 of
the Bombay Trusts Act, 1950 to recover the property by filing a suit or initiating
a proceeding. In fact, in the matter of K. Shamrao and others vs. Assistant
Charity Commissioner reported in (2003) 3 SCC 563, a two Judge Bench of this
Court had been pleased to hold that the Assistant Charity Commissioner under
the scheme of the Act of 1950 i.e. Bombay Public Trusts Act, 1950 possesses all
the attributes of a Court and has almost all the powers which an ordinary civil
court has including the power of summoning witnesses, compelling production of
documents, examining witnesses on oath and coming to a definite conclusion on
the evidence induced and arguments submitted. Section 79 (1) of the same Act
also lays down that any question, whether or not a trust exists and such trust
is a public trust or particular property is the property of such trust, is
required to be decided under its statutory force by the Deputy or Assistant
Charity Commissioner as provided under the Act and Section 80 bars jurisdiction
of the civil court to decide or deal with any question which is by or under
this Act to be decided or dealt with by any officer or authority under this
Act.
19.
Thus,
when the appellant-trust was in occupation and possession of the property in
question then the respondent-plaintiff clearly could not have approached the
civil court ignoring the specific provision under the Bombay Public Trusts Act,
1950 which has laid down provisions to deal with disputes relating to the
property of the trusts. It also cannot be overlooked that in the instant case,
it is the original owner of the property i.e. respondent No.8 who had executed a
deed of gift in favour of the appellant-trust and subsequently after ten years,
executed a sale deed in favour of the predecessor of respondent Nos.1 to 7, who
approached the Court for recovery of his property in which case it could perhaps
have been available for the owner of the property to approach the civil court.
But in the case at hand, it is the purchaser of the property predecessor of Respondent
Nos. 1-7 who filed the suit for possession which clearly can be construed as
the suit for recovery of possession from the appellant-trust which was in
possession of the property. In that view of the matter, it was the statutory
requirement of the Bombay Public Trusts Act, 1950 to approach the Charity Commissioner
before a suit could be instituted.
20.
In
view of the aforesaid discussion and in the light of the reasons assigned hereinbefore,
we set aside the judgment and order of the High Court as also the First Appellate
Court and restore the judgment and order of the Trial Court which had been
pleased to dismiss the suit filed by the plaintiff-respondents No.1 to 7. The
Trial Court, however, had decreed the suit for return of the money ofRs.17,500/-
to the predecessor of respondents No.1 to 7 and also interest was ordered to be
paid on this amount by the vendor-respondent No.8. Since the respondent No.8
had already been divested of his title to execute a sale deed in favour of
respondent Nos.1 to 7 as he had already executed a deed of gift in favour of
the appellant-trust for charitable purpose, we are of the view that in the
interest of equity, he should not be saddled with the financial liability to
return the amount of Rs.17,500/- with interest to the respondentNos.1-7. This
amount, in our view, in the interest of equity and fair play should be paid by
the appellant-trust to the respondent Nos.1-7 on behalf of Respondent No.8, as
this part of the decree which had been passed by the Trial Courtin favour of
respondent Nos. 1-7 had not been challenged by way of an appeal by the
respondent No.8. But as we have held that the appellant-trust is the rightful
owner of the disputed plot and the Respondent No.8 as a consequence has been
held to have been divested of the property, the amount paid by the predecessor
of Respondent Nos.1-7,should be refunded to Respondent Nos.1-7 without interest
and thus the decree of the Trial Court shall be treated as modified to this
extent. This appeal accordingly is allowed, without any order as to costs.
.......................................J
(Markandey Katju)
.......................................J
(Gyan Sudha Misra)
New
Delhi,
December
13, 2010
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