Partly allowed

Janaradan Anandrao Patil and Othrs v. Guruprasad Raghunath Patil and Othrs

Bombay HC2 Apr 2008FA/2755/2007

Case brief

AI extract

What is this about?

In a first appeal regarding a trust scheme under the Bombay Public Trusts Act, the High Court held that the Assistant Charity Commissioner must modify the scheme's succession clause. The court ordered the reconstitution of the first board of trustees after giving representation to the legal representatives of all six deceased original trustees.

What did the court decide?

Impugned orders modified; Scheme modified; First Board of Trustees to be reconstituted after hearing all concerned; Legal representatives of deceased trustees to be given representation.

Janaradan Anandrao Patil and Othrs Vs… — Constitutional and Fundamental Rights | Bombay HC (2008)

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: 1 :

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 2755 OF 2007

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Shri.Janardan Aanadrao Patil ... Appellants and Ors.

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Versus Shri. Guruprasad Raghunath Patil ... Respondents and Ors. Shri.Amit Sale for the Appellants. Shri.Vikas Mali for the Respondents.

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CORAM : A.S. OKA, J.

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DATE ON WHICH JUDGMENT IS RESERVED : 13th March, 2008. DATE ON WHICH JUDGMENT IS PRONOUNCED: 2nd April, 2008.

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JUDGMENT:

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Heard the learned advocates appearing for the parties. Considering the nature of the dispute

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involved, the Appeal is taken up for final disposal at

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admission stage with the consent of the parties.

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It will be necessary to briefly refer to the facts of the case. An application was made by the Respondents No. 1 to 5 herein under Section 50-A(1) of the Bombay Public Trusts Act, 1950 praying for framing a Scheme for management and administration of a Public Trust by the name Shri. Trambakeshwar Dev, Mardwadi, Ashta, Taluka Walwa, District Sangli. The said application was allowed by the learned Assistant Charity Commissioner, Sangli Region, Sangli by an order dated 9th February, 2005. Being aggrieved by the said Judgment and Order, the present Appellants filed an Application under Section 72 of the said Act, 1950

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: 2 :

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before the District Court. The said application was

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rejected by the learned District Judge-1 at Islampur.

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Though, this Appeal is registered as a First Appeal, in view of the setted legal position, the same will be governed by the constraints of Section 100 of the Code of Civil Procedure, 1908. The questions involved in this Appeal are whether an error was committed by the learned Assistant Charity Commissioner by not giving representation to the legal representatives of all the original trustees while nominating the first board of trustees. Another question which arises is whether the learned Assistant Charity Commissioner committed an error by incorporating in the Scheme a clause to the effect that the eldest son of deceased trustee shall be entitled to

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be appointed as a trustee in place of the deceased

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trustee.

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The submission of the learned Advocate appearing for the Appellants is that there was no necessity of framing a scheme by exercising powers under Section 50-A of the said Act of 1950. It is submitted that there was no proper opportunity given by the learned Assistant Charity Commissioner to the legal representatives of the deceased trustees for representing their case. It is submitted that while appointing the first board of trustees, there is no representation given to the legal representatives of atleast four to five deceased trustees. It is

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submitted		that	: 3 : more	rep	resentati	on	oug	ht	to have	been
given	to	the		legal	repr	esentat	ives	of	the	deceased
trustees.		The	preci	se	submiss	ion	is	that	as a	result
of	the	constit	ution	of	the	boar	d	of	trustees made	by
the	learned	Cha	rity	C	ommissi	oner,		the	original	trustees

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and or their legal representatives will be in minority.

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5.	The	learned advocate for the contesting
Respondents in	vited	my attention to the affidavit	of
the 5th Res	ponden	t filed on behalf of Respondent	No.1
to 14. It	is	pointed out in the affidavit that	there
were six origina	l	trustees. It is stated that five	out
of six trustees	died	prior to the year 2005. The	names
of the m	ale	legal representatives of the said	deceased
trustees have	been	set out in the said affidavit.	The
advocate for	the	Respondents pointed out that all	the
Appellants are		not the legal representatives of	the
deceased origin	al	trustees. It is submitted that	the
legal represe	ntatives	of many of the deceased	trustees
did not c	ome	forward before the learned	Assistant
Charity Commis	sioner	and, therefore, representation	has
not been given	to	them. It is submitted that there	are
no existing	Rules	and Regulations governing	the
day-to-day adm	inistrat	ion of the trust. It	is
submitted that	the	Temple has a very large income	and,
therefore, it	was	necessary that a Scheme should	be
framed for da	y-to-day	administration of the trust.	The
learned advoc	ate,	therefore, submitted that	no

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interference was called for as no substantial question

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of law is involved in the Appeal.

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: 4 :

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The learned advocate for the Appellants

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accepts that the persons mentioned at item Nos. 1 to 3 and 5 in paragraph No.2 of the affidavit dated 28th February, 2008 of the 5th Respondent are the deceased trustees. It is stated that one Ganu Patil, whose name

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appears at Sr.No.3 was a trustee. This position is

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accepted by the advocate for Respondents.

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I have carefully considered the submissions.

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The perusal of the impugned Order shows	that	there	were
no Rules and Regulations governing	the	trust	in
question. The temple of the trust has	some i	ncome.	At
the time of registration of the trust,	the	mode	of
succession of the trustees was	me	ntioned	as
"hereditary". While passing the impugn	ed	order	and
framing a Scheme, the learned	Assistant		Charity
Commissioner recorded a clear finding tha	t ther	e are	no
Rules and Regulations for the management	of	the	trust
and the object of the trust recorded at	the	time	of
registration was only pooja, archa and	mainte	nance	of
the Temple. He found that the tr	ustees	had	never
submitted any change report and the	trustees	had	not
submitted any accounts. Therefore,	the		learned
Assistant Charity Commissioner found that	there	was	a
necessity of framing the Scheme. The	perusa	l of	the
Judgment of the learned District Judge	shows	that	the
Assistant Charity Commissioner had issued	notice	to	the
surviving trustees before framing the	Schem	e.	The
learned Judge observed that out of	original	6	Trustees,

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4	had	: 5 : expired	and no	one	had	given	any infor	mation
about	the	deceased	trust	ees	to	the	office of	the
Charity		Commissioner.		The	learn	ed J	udge observed	that
there	was	a large	income	of the		trust	but the trust	was
not	gov	erned by	any	Rules	and	Reg	ulations. Th	erefore,
the	learned	Judge	accepted	the	fi	nding	of the au	thority
that	it	was ne	cessary	and	expe	dient	to frame	the
Scheme.		It is	very	difficult	to	find	fault with	the

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aforesaid finding recorded of the necessity of framing

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the Scheme.

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I have perused the Scheme framed by the

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Authority.	The	Scheme	provides that	ther	e	will	be	15
trustees	forming	part o	f the board	of		trustees	and	the
tenure	of the	Board of	Trustees will	be	5	years.		The
Scheme	provides	that	the original	trus	tees		will	be
hereditary	trustees	and	remaining	truste	es		will	be
elected	by members	after	the tenure	of	5	years	is	over.
The	Scheme	provides	that eldest son	of		a	he	reditary
trustee	will bec	ome a	trustee after	the	de	mise	of	the
original	trustee.	The	Scheme	specific	ally	re	cords	that

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the rights of the hereditary trustees have been kept

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intact.

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As pointed out earlier, there were 6 original

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trustees.	Therefore, out of	15 Trustees,	6 will	e the
hereditary	trustees and	remaining 9 will	be	elected
amongst	the members.	This is in	consonance	with
democratic	principles. If	the submission	made by	the
advocate	for the Appe	llants is accepted,	the	entire

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management	of	: 6 : the Tru	st will	continue	to	vest	in	few
selected	families	and	other	members	and	the		devotees
will	have no	representat	ion in	the	Board	of		trustees.
Therefore,	the	contention	that	the	membe	rs	of	the

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families of the hereditary trustees should be in

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majority cannot be accepted.

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10.	Clause No.10 of the	Scheme	provides that the
eldest	son of the	decea	sed hereditar	y	trustee	will
become	a trustee in his	place.	In my	view,	even	this
Clause	needs modification.		Before	a	ppointing	the
eldest	son as a trustee	in	place of	dec	eased	hereditary
trustee,	the Assistant	Charity	Commission	er	will	have
to	ascertain whether he i	s a	fit and	proper	person	to
act	as a trustee.	If	the	Assi	stant	Charity
Commissio	ner finds that the	eldest	son is	not	a fit	and
proper	person to becom	e a	trustee or	that	the	eldest
son	is not willing to	beco	me a trust	ee or	that	the
deceased	trustee dies without	lea	ving a	son,	it wil	l be
open	for the legal	repr	esentatives of		the	deceased
trustee	to nominate one	of	the lega	l re	presentative	s to
become	a trustee. Such	nomina	tion will	have	to be	made
by	consent of all	the	legal represe	ntatives	of	the
deceased	trustees. In	the	eve	nt,	the	legal
representat	ives are unable	to	reach an	ag	reement	within
stipulated	time from the	date	of	death	of	the
hereditary	trustee, th	e	Assistant	Charity	Com	missioner
will	have to appoint	one	of the	legal	repre	sentatives
of	the deceased trustee	as	a trustee	after	notice	to
all	the legal rep	resentati	ves and	after	as	certaining

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fitness	of	: 7 : such	legal	represent	ative.	After	a legal
representative		is no	minated	by	consent	or	is appointed
under	the	order	of	the	Assistant	Charity	Commissioner,
such	legal	represe	ntative	will	become	a	hereditary

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trustee and same procedure will have to be followed

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after his demise.

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11.	In the a	ffidavit da	ted 28th	February,	2003
filed	by the	Re	spondent	No.5	Shri.Shankar	Shripati
Deshmukh,	the	names	of	legal	representatives of	the
deceased	Trustees	have	been	set ou	t and there is	no
dispute	between	the	parties	the	said persons are	the
legal	representatives	o	f th	e dec	eased trustees.	The
legal re	presentatives of	all	6	Truste	es will have	to be
given	representation	as	per	the	Scheme and,	therefore,
the	first board	of	truste	es app	ointed by the	learned
Assistant	Charity	Commi	ssioner	will	have to	be
reconstituted	after	hearing	of	conc	erned parties.	In

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my view, subject to what is held earlier, no other

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Clause of the Scheme needs any modification.

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Therefore, for limited purpose, Order of

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Remand will have to be passed.

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Hence, I pass following order:-

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(i) The impugned Judgments and Orders are

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modified.

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(ii) The parties are directed to appear

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: 8 : before the learned Assistant Charity Commissioner on 6th May, 2008 in Application No.552 of 2004.

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(iii) The Scheme already framed by the Assistant Charity Commissioner is confirmed, save and except, the Clause No.7 and 10 thereof.

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(iv) The learned Assistant Charity Commissioner will modify Clause No.10 of the Scheme only in sofar as the mode of succession of six hereditary trustee is concerned in the light of the observations made in this Judgment.

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(v) The first Board of Trustees constituted by the Assistant Charity Commissioner shall be reconstituted after hearing all concerned parties. While reconstituting the board of trustees, representation will be given to the legal representatives of the deceased original Trustees in terms of the Scheme.

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(vi) This exercise shall be completed by

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the learned Assistant Charity Commissioner on or before 31st August, 2008.

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(vii) Till the board of trustees is

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: 9 :

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reconstituted, the trustees appointed under

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the impugned Order will continue to discharge

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duty as trustees without taking any major

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policy decisions.

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Appeal is partly allowed in the above terms

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with no order as to costs.

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All parties and concerned authority to act

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upon an authenticated copy of this Order.

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(A.S. Oka, J)

Janaradan Anandrao Patil and Othrs v. Guruprasad Raghunath Patil and Othrs

Case brief

What is this about?

What did the court decide?

Janaradan Anandrao Patil and Othrs v. Guruprasad Raghunath Patil and Othrs

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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