Karnataka High Court
Pratap Singh S/O Narasoji Rao Shinde vs Uday Singh S/O Narasoji Rao Shinde on 2 January, 2023
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R.NATARAJ
MISCELLANEOUS FIRST APPEAL NO.4390 OF 2006 (BPT)
C/W
MISCELLANEOUS FIRST APPEAL NO.4393 OF 2006 (BPT)
IN M.F.A. NO.4390/2006:
BETWEEN:
PRATAP SINGH S/O NARASOJI RAO SHINDE
DECEASED BY LEGAL HEIRS
1. NANDINIDEVI PRATAPSINGH SHINDE
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD WORK,
W/O. LATE PRATAPSINGH,
R/O. THORAGAL VILLAGE,
RAMDURGA, BELGAUM
2. SANJAY SIMHA PRATAPSINGH SHINDE,
AGED ABOUT 38 YEARS
S/O. PRATAP SHIGH SHINDE
AGRICULTURIST
R/O. THORAGAL VILLAGE,
RAMDURGA, BELGAUM
3. AMRUTHA PRATAPSINGH SHINDE,
AGED ABOUT 33 YEARS
D/O PRATAP SINGH SHINDE
HOUSEHOLD,
R/O THORAGAL VILLAGE,
RAMDURGA, BELGAUM.
...APPELLANTS
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
AND
1. UDAY SINGH S/O NARASOJI RAO SHINDE
SINCE DECEASED BY LRS.
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1A. SMT. SUNETHRA W/O. UDAYSINGH SHINDE,
AGE: 82 YEARS, OCC: HOUSEWIE,
R/O. SUNNAL VILLAGE - 591123
RAMDURGA, BELGAUM
1B. SMT. SANYOGITA W/O. SUNIL SAVANTh,
SINCE DECEASED BY LRS.
1B(i) SUNIL S/O. SHASHIKANT SAVANT
AGE: 63 YEARS, OCC: NIL,
R/O. FLAT NO. 904, E-2, DREAMS AAKRUTI,
NEAR DHERE CONCRETE COMPANY,
HADPSAR, PUNE- 411028, MAHARASHTRA.
1B(ii) MEENAXI D/O. SUNIL SAVANT
AGE: 35 YEARS, OCC: SERVICE,
R/O. FLAT NO. 904, E-2, DREAMS AAKRUTI,
NEAR DHERE CONCRETE COMPANY,
HADSPAR, PUNE- 411028, MAHARASHTRA.
1C. SMT. VASUNDHARA
D/O. UDAY SINGH SHINDE,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SUNNAL VILLAGE - 591123
RAMDURGA, BELGAUM
1D. SANGRAM S/O. UDAY SINGH SHINDE,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL VILLAGE - 591123
RAMDURGA, BELGAUM.
...RESPONDENTS
(BY SRI. G B NAIK AND SMT. P. G. NAIK, ADV., FOR R1D;
R1A, R1C, R1B(ii) - SERVICE HELD SUFFICIENT;
R1B(i) - SERVED)
THIS MFA IS FILED U/S 72 (4) OF THE BOMBAY PUBLIC TRUST
ACT PRAYING TO SET ASIDE THE ORDER DATED:23.2.2006 PASSED
IN MISC.APPLICATION NO.61/2003 BY THE II-ADDL. DISTRICT
JUDGE, BELGAUM, AND ORDER DATED:10.4.2003 PASSED IN
REV.PET.NO.15/2000 BY THE CHARITY COMMISSIONER, BELGAUM.
IN M.F.A. NO.4393/2006:
BETWEEN:
PRATAP SINGH S/O NARASOJI RAO SHINDE
DECEASED BY LEGAL HEIRS
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1. NANDINIDEVI PRATAPSINGH SHINDE
AGED ABOUT 64 YEARS,
OCC: HOUSEHOLD WORK,
W/O. LATE PRATAPSINGH,
R/O. THORAGAL VILLAGE,
RAMDURGA, BELGAUM
2. SANJAY SIMHA PRATAPSINGH SHINDE,
AGED ABOUT 38 YEARS
S/O. PRATAP SHIGH SHINDE
AGRICULTURIST
R/O. THORAGAL VILLAGE,
RAMDURGA, BELGAUM
3. AMRUTHA PRATAPSINGH SHINDE,
AGED ABOUT 33 YEARS
D/O PRATAP SINGH SHINDE
HOUSEHOLD,
R/O THORAGAL VILLAGE,
RAMDURGA, BELGAUM.
...APPELLANTS
(BY SRI. GIRISH A YADAWAD, ADVOCATE)
AND
1. UDAY SINGH S/O NARASOJI RAO SHINDE
SINCE DECEASED BY LRS.
1A. SMT. SUNETHRA W/O. UDAYSINGH SHINDE,
AGE: 82 YEARS, OCC: HOUSEWIE,
R/O. SUNNAL VILLAGE - 591123
RAMDURGA, BELGAUM
1B. SMT. SANYOGITA W/O. SUNIL SAVANTh,
SINCE DECEASED BY LRS.
1B(i) SUNIL S/O. SHASHIKANT SAVANT
AGE: 63 YEARS, OCC: NIL,
R/O. FLAT NO. 904, E-2, DREAMS AAKRUTI,
NEAR DHERE CONCRETE COMPANY,
HADPSAR, PUNE- 411028, MAHARASHTRA.
1B(ii) MEENAXI D/O. SUNIL SAVANT
AGE: 35 YEARS, OCC: SERVICE,
R/O. FLAT NO. 904, E-2, DREAMS AAKRUTI,
NEAR DHERE CONCRETE COMPANY,
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HADSPAR, PUNE- 411028, MAHARASHTRA.
1C. SMT. VASUNDHARA
D/O. UDAY SINGH SHINDE,
AGE: 52 YEARS,
OCC: HOUSEHOLD WORK,
R/O. SUNNAL VILLAGE - 591123
RAMDURGA, BELGAUM
1D. SANGRAM S/O. UDAY SINGH SHINDE,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUNNAL VILLAGE - 591123
RAMDURGA, BELGAUM.
...RESPONDENTS
(BY SRI. G B NAIK AND SMT. P. G. NAIK, ADV., FOR R1D;
R1A, R1C, R1B(ii) - SERVICE HELD SUFFICIENT;
R1B(i) - SERVED)
THIS MFA IS FILED U/S 72 (4) OF THE BOMBAY PUBLIC TRUST
ACT PRAYING TO SET ASIDE THE ORDER DATED:23.2.2006 PASSED
IN MISC.APPLICATION NO.62/2003 BY THE II-ADDL. DISTRICT
JUDGE, BELGAUM, AND ORDER DATED:10.4.2003 PASSED IN
REV.PET.NO.16/2002 BY THE FILE OF THE CHARITY COMMISSIONER,
BELGAUM.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
30.11.2022, COMING ON FOR PRONOUNCEMENT, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
MFA No.4390/2006 and MFA No.4393/2006 are filed challenging the common order dated 23.02.2006 passed by the II Additional District Judge, Belgaum in Misc. Application Nos.61/2003 and 62/2003, by which it confirmed the order dated 10.04.2003 passed by the Charity Commissioner, Belgaum in Revision Petition Nos.15/2000 and 16/2002.
-5-2. The facts in brief are that, a person named Narsoji Rao Shinde filed an application on 30.05.1952 before the Assistant Charity Commissioner, Belgaum (henceforth referred to as "ACC/B") under the provisions of the Bombay Public Trust Act, 1950 seeking permission to create a trust in the name of Sri. Veerabhadra Dev of Godachi village of Ramadurga Taluk, Belgaum District. The ACC/B passed an order dated 24.11.1953 registering the trust and the name of Narsoji Rao Shinde was entered in the Public Trust Register (henceforth referred to as "PTR") as sole trustee and it was claimed that the trusteeship was to be inherited hereditarily by succession. The said Narsoji Rao Shinde died on 27.05.1974 leaving behind his two sons namely Uday Singh and Pratap Singh, who submitted a report to change the name of the Trustees in the PTR. The ACC/B passed an order dated 16.08.1974 allowing the said application, consequent to which the names of Uday Singh and Pratap Singh were entered in the PTR. However, on 20.01.1975, the eldest son namely, Uday Singh got an application filed in the name of his younger brother, Pratap Singh and sought deletion of the name of Pratap Singh on the ground that Uday Singh was managing the affairs of the trust and that the founder trustee desired that the Trust should be -6- managed by his eldest son. The ACC/B rejected the application in terms of the order dated 19.02.1975. Long thereafter, Uday Singh filed two Revision Petitions Nos.15/2000 and 16/2002 before the Charity Commissioner, Belgaum along with applications for condonation of delay of 26 years challenging the earlier order dated 16.08.1974 and the subsequent order dated 19.02.1975. The two revision petitions were considered by the Charity Commissioner, who allowed them in terms of the order dated 10.04.2003. Later, Pratap Singh filed two Misc.
Applications 61/2003 and 62/2003 before the II Additional District Judge, Belgaum. During the pendency of the proceedings, Pratap Singh died and his legal representatives were brought on record. The learned District Judge considered the two applications and in terms of the common order dated 23.02.2006 dismissed them.
3. Being aggrieved by the said order, the legal heirs of Pratap Singh have filed these two appeals under Section 72(4) of the Bombay Public Trust Act, 1950.
4. During the pendency of this appeal, the respondent died and his legal representatives are brought on record.
-7-5. An application in I.A.No.1/2022 under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') in both the appeals was filed by the appellants to place on record the following documents:
1. Photocopy of certified copy of the application dated 30.05.1952 filed before the Assistant Charity Commissioner, Belgaum along with its English translation.
2. Photocopy of certified copy of the order dated 24.11.1953 passed by the Assistant Charity Commissioner, Belgaum.
3. Photocopy of certified copy of Change report dated 16.06.1974.
4. Photocopy of certified copy of the Roznama/ Order dated 16.08.1974.
5. Photocopy of certified copy of the Roznama/ Order dated 19.02.1975.
6. It is claimed in the affidavits accompanying the applications that the above documents are part of the record but were not produced at the earliest point in time due to oversight and inadvertence. It is also contended that these documents are public documents and are just and necessary for a fair adjudication of the dispute.-8-
7. The respondent No.1(d) has filed the statement of objections to these applications contending that the translation of document at Sl.No.1 is not a correct translation of the original. He also claimed that these documents are not discovered afresh, for them to be produced as additional evidence in this appeal. Further, he contended that the documents sought to be produced are photo copies and not certified copies. Further, it is claimed that the reason cited in the affidavits does not pass the muster under Order XLI Rule 27 of CPC and that the appellants have failed to exercise due diligence.
8. The learned counsel for the appellants submitted that the Charity Commissioner committed an error in condoning the delay of 26 years in filing the revision petitions. He also submitted that the additional documents sought to be placed on record indicated that the founder trustee while mentioning the mode of bringing manager had stated "trustee will remain a life time trustee. There is a custom that after him, his successor elder son will become the trustee. Manager - Trustee will appoint manager at his wish or appoint another." He submitted that based on the above, Uday Singh filed an application to enter the name of Narsoji Rao Shinde. In the said -9- application, he disclosed "I have a younger brother Pratap Singh N Shinde, his name also be entered". Based upon this, he contended that the names of Uday Singh and Pratap Singh were entered in Application No.276/1994. The change report was accepted and Uday Singh Shinde was informed about the order. It is further claimed that an application was filed by Uday Singh Shinde for deleting the name of Pratap Singh, which was rejected in terms of the order dated 19.02.1975. He therefore, contended that Uday Singh is estopped from now contending to the contrary.
9. The respondent No.1(d) has filed a written synopsis wherein it is claimed that Sri. Narsoji Rao Shinde desired that the trust shall be managed by his eldest son after his demise and therefore, an application was filed to delete the name of Pratap Singh. It is claimed that the respondent was under the bonafide impression that the name of Pratap Singh was deleted and so he continued to manage the trust. It is claimed that in the year 2000, Pratap Singh began interference in the affairs of the trust on the ground that his name appeared in the records.
He contended that the entry of the name of Pratap Singh was against the mode of succession prescribed under the deed of Trust and also against the intention of the founder of the trust.
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He claimed that the very reason for specifying the mode of succession as "hereditary" indicated that the succession had to be as specified in the deed and not as per Hindu Succession Act. He claimed that the true intention of the founder trustee was that his eldest son should manage the trust. He claimed that this prescription was intelligible since the founder trustee foresaw a situation of infighting amongst his sons and thus annointed his eldest son to manage the trust after him. He claimed that the legal heirs of Pratap Singh have no locus-
standi to challenge the order passed by the District Court as the appeal before the District Court abated. He contended that in respect of a public trust, the general rules of succession are not applicable since Sri.Veerabhadra Dev is the owner and the trustee is only a manager. In this regard, he relied upon the judgment of the Hon'ble Apex Court in Sri. Marthanda Varma (Dead) through legal representatives and another Vs. State of Kerala and others [2021 (1) SCC 225]. He invited the attention of this Court on paragraphs 139 to 141, which reads as below.
"139. Further, unless and until the line of succession of the shebaitship and in-charge of the administration, is completely extinct, there can be no question of escheat as observed by the High Court. In Kutchi Lal Rameshwar
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Ashram Trust Evam Anna Kshetra Trust v. Collector [Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust v. Collector, (2017) 16 SCC 418 : (2018) 2 SCC (Civ) 759] , this Court had an occasion to consider the issue of escheat in the context of a public trust. In that case, after the death of one Mohanlal in whose name patta of the property was secured, the Collector had concluded that the property vested in the State Government by operation of law. Setting aside the decision [Shree Kutchii Lal Rameshwar Ashram Trust v. Collector, WPMB No. 477 of 2003, decided on 15-5-2007 (Utt)] of the High Court which had affirmed the conclusions of the Collector, this Court observed : (Kutchi Lal Rameshwar case [Kutchi Lal Rameshwar Ashram Trust Evam Anna Kshetra Trust v. Collector, (2017) 16 SCC 418 : (2018) 2 SCC (Civ) 759] , SCC pp. 429-33, paras 20, 22-23 & 25) "20. Section 29 of the Hindu Succession Act, 1956 has been invoked by the Collector. Section 29 provides as follows:
'29. Failure of heirs.--If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.' Section 29 embodies the principle of escheat. The doctrine of escheat postulates that where an individual dies intestate and does not leave behind an heir who
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is qualified to succeed to the property, the property devolves on the Government. Though the property devolves on the Government in such an eventuality, yet the Government takes it subject to all its obligations and liabilities. The State in other words does not take the property (at SCC p. 113, para 12) "as a rival or preferential heir of the deceased but as the lord paramount of the whole soil of the country", as held in State of Punjab v. Balwant Singh [State of Punjab v. Balwant Singh, 1992 Supp (3) SCC 108] . This principle from Halsbury's Laws of England [ 4th Edn., Vol. 17, para 1439.] was adopted by this Court while explaining the ambit of Section 29. Section 29 comes into operation only on there being a failure of heirs. Failure means a total absence of any heir to the person dying intestate. When a question of escheat arises, the onus rests heavily on the person who asserts the absence of an heir qualified to succeed to the estate of the individual who has died intestate to establish the case. The law does not readily accept such a consequence. In State of Bihar v. Radha Krishna Singh [State of Bihar v. Radha Krishna Singh, (1983) 3 SCC 118] , a Bench of three Judges of this Court formulated the principle in the following observations : (SCC p. 216, para 272) '272. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully
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and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the respondent- plaintiffs. Even if they succeed in showing that the plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs' claim would lead to the irresistible inference that there is no other heir who could at any time come forward to claim the properties.' ***
22. In Rambir Das v. Kalyan Das [Rambir Das v. Kalyan Das, (1997) 4 SCC 102] a Bench of two learned Judges of this Court dealt with a case of shebaitship. Citing the authority of Justice B.K. Mukherjea's celebrated Tagore Law Lectures with approval, this Court took note of the position of law elucidated in the lectures : (Rambir Das case [Rambir Das v. Kalyan Das, (1997) 4 SCC 102] , SCC p. 105, para 3) '3. ... "As shebaitship is property, it devolves like any other property according to the ordinary Hindu Law of inheritance. If it remains in the founder, it follows the line of founder's heirs; if it is disposed of absolutely in favour of a grantee, it devolves upon the heirs of the
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latter in the ordinary way and if for any reason the line appointed by the donor fails altogether, shebaitship reverts to the family of the founder."' On the question of escheat, B.K. Mukherjea, J. observes thus : (SCC p. 106, para 3) '3. ... "As there is always an ultimate reversion to the founder or his heirs, in case the line of shebaits is extinct, strictly speaking no question of escheat arises so far as the devolution of shebaitship is concerned. But cases may be imagined where the founder also has left no heirs, and in such cases the founder's properties may escheat to the State together with the endowed property. In circumstances like these, the rights of the State would possibly be the same as those of the founder himself, and it would be for it to appoint a shebait for the debutter property. It cannot be said that the State receiving a dedicated property by escheat can put an end to the trust and treat it as secular property."' In other words, even in a situation where a founder or his line of heirs is extinct, and the properties escheat to the State, the State which receives a dedicated property is subject to the trust and cannot treat it in the manner of a secular property. In fact, we may note, Section 29 expressly stipulates that the State 'shall take the property subject to all the obligations and liabilities to which an heir would have been subject'.
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23. In deciding this case, this Court must also bear in mind the settled principle that unless the founder of a math or religious institution has laid down the principle governing succession to the endowment, succession is regulated by the custom or usage of the institution. This principle was enunciated over six decades ago by this Court in Sital Das v. Sant Ram [Sital Das v. Sant Ram, AIR 1954 SC 606] , rendered by B.K. Mukherjea, J., speaking for a Bench of four Judges : (AIR p. 609, para 9) '9. In the appeal before us the contentions raised by the parties primarily centre round the point as to whether after the death of Kishore Das, the plaintiff or Defendant 3 acquired the rights of mahant in regard to the Thakardwara in dispute. The law is well settled that succession to Mahantship of a Math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. As the Judicial Committee laid down [Vide Genda Puri v. Chhatar Puri [Genda Puri v. Chhatar Puri, 1886 SCC OnLine PC 11 : (1885-
86) 13 IA 100] , IA at p. 105] in one of the many cases on this point : (SCC OnLine PC) "... In determining who is entitled to succeed as Mohunt, the only law to be observed is to be found in the custom and practice, which must be proved by testimony, and the claimant must show that he is entitled according to the custom to recover the office and the land and property belonging to it."
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Mere infirmity of the title of the defendant, who is in possession, will not help the plaintiff.' ***
25. The principle that the law does not readily accept a claim to escheat and that the onus rests heavily on the person who asserts that an individual has died intestate, leaving no legal heir, qualified to succeed to the property, is founded on a sound rationale. Escheat is a doctrine which recognises the State as a paramount sovereign in whom property would vest only upon a clear and established case of a failure of heirs. This principle is based on the norm that in a society governed by the rule of law, the court will not presume that private titles are overridden in favour of the State, in the absence of a clear case being made out on the basis of a governing statutory provision. To allow administrative authorities of the State--including the Collector, as in the present case--to adjudicate upon matters of title involving civil disputes would be destructive of the rule of law. The Collector is an officer of the State. He can exercise only such powers as the law specifically confers upon him to enter upon private disputes. In contrast, a civil court has the jurisdiction to adjudicate upon all matters involving civil disputes except where the jurisdiction of the court is taken away, either expressly or by necessary implication, by statute. In holding that the Collector acted without jurisdiction in the present case, it is not necessary for the Court to go as far as to validate the title which is claimed by the petitioner to the property. The Court is not called upon to decide whether the
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possession claimed by the Trust of over forty-five years is backed by a credible title. The essential point is that such an adjudicatory function could not have been arrogated to himself by the Collector. Adjudication on titles must follow recourse to the ordinary civil jurisdiction of a court of competent jurisdiction under Section 9 of the Code of Civil Procedure, 1908."
140. In the circumstances, we hold that the death of Sree Chithira Thirunal Balarama Varma who had signed the Covenant, would not in any way affect the shebaitship of the Temple held by the royal family of Travancore; that after such death, the shebaitship must devolve in accordance with the applicable law and custom upon his successor; that the expression "ruler of Travancore" as appearing in Chapter III of Part I of the TC Act must include his natural successors according to law and custom; and that the shebaitship did not lapse in favour of the State by principle of escheat.
141. We must now deal with two decisions on which reliance was placed by Mr Suresh, learned counsel for Respondents 3, 4 and 6 in appeal arising from Special Leave Petition (Civil) No. 12361 of 2011:
141.1. In Bala Shankar Maha Shanker Bhattjee v.
Charity Commr., State of Gujarat [Bala Shankar Maha Shanker Bhattjee v. Charity Commr., State of Gujarat, 1995 Supp (1) SCC 485] the basic issue was whether Kalika Mataji Temple was a public trust. The High Court found, inter alia, that by Sanad No. 19, Scindias
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in their capacity as sovereign rulers had passed on their obligations in respect of the temple to the British Government by a treaty concluded between them in 1860. After considering various decisions on the point, the principles were noted by this Court as under :
(SCC pp. 496-97, paras 19-21) "19. A place in order to be a temple, must be a place for public religious worship used as such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. The distinction between a private temple and public temple is now well settled. In the case of former the beneficiaries are specific individuals; in the latter they are indeterminate or fluctuating general public or a class thereof. Burden of proof would mean that a party has to prove an allegation before he is entitled to a judgment in his favour. The one or the other of the contending parties has to introduce evidence on a contested issue. The question of onus is material only where the party on which it is placed would eventually lose if he failed to discharge the same. Where, however, parties joined the issue, led evidence, such evidence can be weighed in order to determine the issue. The question of burden becomes academic.
20. An idol is a juristic person capable of holding property. The property endowed to it vests in it but the idol has no beneficial interest in the endowment.
The beneficiaries are the worshippers. Dedication may be made orally or can be inferred from the conduct or from a given set of facts and circumstances. There
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need not be a document to evidence dedication to the public. The consciousness of the manager of the temple or the devotees as to the public character of the temple; gift of properties by the public or grant by the ruler or the Government; and long use by the public as of right to worship in the temple are relevant facts drawing a presumption strongly in favour of the view that the temple is a public temple. The true character of the temple may be decided by taking into consideration diverse circumstances. Though the management of a temple by the members of the family for a long time, is a factor in favour of the view that the temple is a private temple, it is not conclusive. It requires to be considered in the light of other facts or circumstances. Internal management of the temple is a mode of orderly discipline or the devotees are allowed to enter into the temple to worship at particular time or after some duration or after the headman leaves the temple are not conclusive. The nature of the temple and its location are also relevant facts. The right of the public to worship in the temple is a matter of inference.
21. Dedication to the public may be proved by evidence or circumstances obtainable in given facts and circumstances. In given set of facts, it is not possible to prove actual dedication which may be inferred on the proved facts that place of public religious worship has been used as of right by the general public or a section thereof as such place without let or hindrance. In a public debutter or endowment, the dedication is for the use or benefit of
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the public. But in a private endowment when property is set apart for the worship of the family idol, the public are not interested. The mere fact that the management has been in the hands of the members of the family itself is not a circumstance to conclude that the temple is a private trust. In a given case management by the members of the family may give rise to an inference that the temple is impressed with the character of a private temple and assumes importance in the absence of an express dedication through a document. As stated earlier, consciousness of the manager or the devotees in the user by the public must be as of right. If the general public have always made use of the temple for the public worship and devotion in the same way as they do in other temples, it is a strong circumstance in favour of the conclusiveness of public temple. The origin of the temple, when lost in antiquity, it is difficult to prove dedication to public worship. It must be inferred only from the proved facts and circumstances of a given case. No set of general principles could be laid."
This decision lays down the parameters for testing whether a particular temple is a private temple, or a public temple, and reiterates that though the property endowed to it vests in the idol, it has no beneficial interest in it and that the beneficiaries are worshippers. It also acknowledges that in a given case the management of the temple may be by the members of a family. The conclusions drawn by us in the present case, are not in any way inconsistent with
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this decision and the accepted premise in the present case is that the Temple is a public temple.
141.2. In Deep Chand v. State of U.P. [Deep Chand v. State of U.P., 1959 Supp (2) SCR 8 : AIR 1959 SC 648] , the questions that arose for consideration were concerning the validity of a scheme framed by the State pursuant to the provisions of the Motor Vehicles Act, 1939. Thereafter, Parliament enacted the Motor Vehicles (Amendment) Act, 1956, which inserted Chapter IV-A into the principal Act. The matter was tested on the principles of repugnancy as also on the anvil of Article 13 of the Constitution. The decision in Deep Chand [Deep Chand v. State of U.P., 1959 Supp (2) SCR 8 : AIR 1959 SC 648] thus has no application to the present controversy.
10. He further contended that the delay in challenging the order passed by the ACC/B before the Charity Commissioner was rightly condoned since the Charity Commissioner felt that sufficient cause was made out. In this regard, he relied upon an order passed by the Co-ordinate Bench of this Court in the case of Smt. Gangamma and others Vs. Hanumantarayappa and others [2018 (5) KCCR 928].
11. I have considered the submissions made by the learned counsel for the parties.
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12. It is necessary to note that once an application is filed to register a public trust under provisions of the Bombay Public Trusts Act, 1950 (henceforth referred to as 'Act' for short), the Assistant Charity Commissioner shall conduct an enquiry for the purpose of ascertaining various issues as set out in Section 19 of the Act, including the mode of succession to the office of the trustee of a public trust. Upon conclusion of such inquiry, he shall record his findings with reasons and thereupon register the Trust by making entries in the register prescribed, which would become final, subject to any change as provided under Section 22 of the Act. Whenever a change occurs in any of the entries recorded in the register, the trustee is bound to report such change within 90 days or where any change is desired in such entries in the interest of administration of the Trust, such report shall be made before the Assistant Charity Commissioner in the prescribed form. For the purpose of verifying the correctness of the entries, the Assistant Charity Commissioner may hold an inquiry in the prescribed manner. It is only thereafter that the change as reported would be registered. The documents such as the application for registering the Trust, the inquiry conducted and the orders passed thereon, the application seeking change of
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the Trustee in the interest of administration of trustees are all public documents, which were all available before the Charity Commissioner. Since the inquiry prescribed for accepting a change report is inquisitorial, it is deemed that the Assistant Charity Commissioner has perused the documents available in its office before accepting or rejecting a request for change in the PTR. The documents that the appellants have sought to produce as additional documents are photocopies of public records relating to the public Trust in question and therefore, production of these documents cannot affect or prejudice the respondents. In that view of the matter, the I.A.No.1/2022 filed under Order XLI Rule 27 of CPC in both the appeals is allowed and these documents are considered as additional documents.
13. The documents reveal application for registration of a public trust was filed on 30.05.1952. As far as bringing other trustees or manager or mode of bringing manager, it was specifically declared as "Trustee will remain a lifetime trustee.
There is custom that after him, his successor eldest son will become trustee. Manager-Trustee will appoint manager at his wish or appoint another."
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14. It appears that at the inquiry conducted by the ACC/B, the founder trustee gave up all his contentions and endorsed on the application on 24.11.1953 as follows:
"The right of management is hereditary. Except this, I give up all the other contentions."
15. In view of the above, the ACC/B passed an order on 24.11.1953 as follows:
"Applicant give up his protest. Exh-3 shows the extent of land. I accept the other particulars of trust given in Exh-1 and record the above findings.
ORDER The Trust is registered as a public Trust"
16. The founder trustee died on 27.05.1974 leaving behind his two sons and a daughter. The eldest son submitted an application on 10.07.1974 to enter his name in the PTR. He also mentioned therein "N.B. I have a younger brother Pratap Singh N Shinde his name also be entered."
17. The ACC/B ordered as follows:-
"Two persons viz Shri. Uday Singh Narasoji Rao Shinde and Sri. Pratap Singh N Shinde are said to be the sons of late Trustee. Mode of succession as
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entered in PTR is hereditary. So the sons being nearest heirs become the trustees. Accordingly, the change report is accepted directing that necessary entries be made in PTR."
18. Later on, an application seems to have been filed by Pratap Singh N. Shinde for discharging him as a trustee on the ground that he is not willing to act as trustee and that his eldest brother U.N.Shinde is looking after the Trust as the eldest member in the family. The ACC/B in terms of his order dated 19.02.1975 held, "Names of these two persons are brought on record as heirs of deceased Narasoji Rao Shinde. It may be that the elder brother Shri. U.N.Shinde being the eldest member might be looking to the trust affairs. But when the mode of succession is hereditary, the direct heirs of the deceased trustee shall be the trustees. If the applicant does not want to continue to be the trustee, he may approach the District Court for being discharged from the trusteeship under Section 47 of the BPT Act, 1950. But at any rate, his name cannot be deleted from trusteeship by this office.
In view of this legal position, the request of the applicant cannot be granted and hence the change report is rejected.
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Inform the applicant."
19. Curiously, after nearly 26 years and 28 years, the elder brother U.N.Shinde challenged the order dated 16.08.1974 and the order dated 19.02.1975 before the Charity Commissioner. The Commissioner proceeded on the assumption that as per PTR, "the eldest son is to succeed to the trusteeship." Obvious of the fact that the founder trustee had himself given up this contention and restricted to "Succession shall be hereditary." He further accepted that U.N.Shinde was under the bonafide belief that all the sons were entitled to succeed and later came to know that it was only the eldest male member who was entitled to succeed and hence condoned the delay of more than 25 years in filing the revision.
Consequently, he allowed the Revision petitions and set aside both the orders passed by the ACC/B.
20. The District Judge before whom applications were filed challenging the orders of the Charity Commissioner, also proceeded on the same footing and dismissed the applications.
It is sad that the District Judge without even perusing the records of the case, such as the application for registration of trust, the PTR register, rode piggyback on the order passed by
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the Charity Commissioner. The District Judge casually considered the issue of inordinate delay in filing the revision petitions before the Charity Commissioner.
21. It is evident from the application filed for registration of the Trust that the founder trustee initially desired that his eldest son should succeed to the office of Trustee but later gave it up and restricted it to succession by inheritance only. The judgment in Marthanda Varma, referred supra, relied upon by the respondent No.1(d) is not applicable to the facts of this case. Therefore, both the sons of the founder trustee had succeeded to the office of Trustee. It was in that context that U.N.Shinde had himself sought the name of his younger brother to be inserted in the PTR. Therefore, the orders passed by the Charity Commissioner dated 10.04.2003 and the District Judge dated 23.02.2006 deserve to be set aside.
22. Another important aspect that is not noticed by both of them is that Pratap Singh Shinde had sought discharge from the post of Trustee, which was rejected. If that be so, this order of rejection could not have been challenged by U.N.Shinde, as he was not aggrieved by such rejection.
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23. In view of the above, these appeals are allowed.
The impugned order dated 10.04.2003 passed by the Charity Commissioner, Belgaum in Revision Petition Nos.15/2000 and 16/2000 as well as the order dated 23.02.2006 passed by the II Additional District Judge, Belgaum in Misc. Application Nos.61/2003 and 62/2003 are set aside. Consequently, the order dated 16.08.1974 passed by the Assistant Charity Commissioner, Belgaum is restored.
24. In view of the above, the names of the appellants and the respondents be entered in the concerned records as the trustees of Sri. Veerabhadra Dev, Godachi village, Ramadurga Taluk, Belgaum District.
(Sd/-) JUDGE YAN