Dismissed

vitthalbhai lallubhai patel v. Kapilaben Madhusudhan Mahant

Gujarat HC4 Mar 2020FA/617/2020

Case brief

AI extract

What is this about?

Appeal against orders of Charity Commissioner and District Judge challenging the appointment of Kapilaben as trustee. Court dismissed appeal, finding the appellant's claim that the deceased had no heir was false and the appointment complied with inheritance rules.

What did the court decide?

Appeal fails and is dismissed against the appointment of Kapilaben as trustee.

vitthalbhai lallubhai patel Vs Kapilaben… — Public Procurement and Tenders | Gujarat HC (2020)

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C/FA/616/2020 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 616 of 2020 With

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R/FIRST APPEAL NO. 617 of 2020

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=============================================================== VITTHALBHAI LALLUBHAI PATEL l

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Versus

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KAPILABEN MADHUSUDHAN MAHANT

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================================================================

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Appearance:

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ANMOL SUROLLIA(9379) for the Appellant(s) No. 1 MR ADARSHKUMAR D PATEL(10728) for the Appellant(s) No. 1 MR DIPESH D SONI(9996) for the Appellant(s) No. 1,2 for the Defendant(s) No. 1,2,3

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================================================================

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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

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Date : 04/03/2020

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ORAL ORDER

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Order dated 14.11.2019 rendered by the learned 15^th Additional District Judge, Vadodara in C.M.A.D.C. No. 1055 of 2008 confirming the order dated 10.07.2008 rendered by the Joint Charity Commissioner, Vadodara in Scheme Application No. 19 of 1996 is sought to be assailed in this appeal.

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On consideration of the submissions made by the learned counsel for the appellant and perusal of the impugned orders as also photocopy of the record of the case more particularly the order passed by the Joint Charity Commissioner, it appears that one Kundangauri was sole trustee of the public charitable trust namely Shri Ranchhodjimaharj Trust and Shri Rakteshwar Mahadev Trust bearing registration no. A/849 and A/850

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Page 1 of 5

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C/FA/616/2020 ORDER

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respectively. The mode of succession to the trusteeship was by inheritance.

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2.1 As per pedhinama produced in Regular Civil Suit No. 90 of 1996 lodged in the court of Civil Judge, Junior Division, Padra further reference to which would be made in the later part of this judgement, Kundangauri had two brothers (1) Mahant Keshavdas and (2) Mahant Madhusudan Kalyandas; the later was younger to the former. One Kapilaben, the wife of Madhusudan Kalyandas Mahant had two sisters namely Dhanlaxmi and and Ramilaben. Kapilaben has two daughters and two sons and one Jayprakash Shantilal Mahant is the son of Ramilaben.

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It appears that Kapilaben had sued Ramilaben, Jayprakash Dhanlaxmi and Balakrishan. The principal relief in the suit was the declaration of her status as trustee. Eventually it appears that suit was decreed on settlement and Kapilaben, one of the heir of Kundangauri came to be accepted as the trustee of the aforementioned trust.

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Nodoubt having regard to the aforesaid relief prayed in the suit, the Civil Court had no jurisdiction to entertain it, as under the provision of the Act, the competent authority i.e. Charity Commissioner/Joint Charity Commissioner is the sole authority to adjudicate upon and /or appoint the trustee or deal with the change report; but for the following developments:

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[1] The appellant herein on assumption that deceased

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Page 2 of 5

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C/FA/616/2020 ORDER

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Kundangauri had left no heir and while contending that in absence thereof, the object and purpose of the trust would be lost, moved an application under the Act. Kapilaben appeared and after being added as party as also upon consideration of her objections, the change report no. 294 of 1996 which was initially rejected but was upheld in the appeal, came to be accepted, on the basis of the judgement and decree in the suit aforesaid, and thus Kapilaben was accepted as trustee of the trust.

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[2] With the said reasons, the scheme application herein came to be rejected which rejection was confirmed by appellate authority. It would thus appear that the Joint Charity Commissioner in his wisdom after having noticed the fact that Kapilaben was one of the heirs of deceased Kundangauri and after having noticed the fact that she was declared as the trustee of the trust; infact indemnified her appointment as such and thus the claim of the appellants that Kundangauri had no heir having been proved untrue, the Charity Commissioner was justified in rejecting the scheme and the Appellate authority also was justified in affirming the judgement of the Charity Commissioner. Despite this the appellant has pursued these proceedings with a motive to oust Kapilaben, the heir of Kundangauri. Thus his claim being a person with interest in the 'trust' doesn't seem to be bonafide.

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Page 3 of 5

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C/FA/616/2020 ORDER

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Having regard to the overall facts and circumstances of the case, it appears that the very basis of the appellants that Kundangauri had no heir was false and thus when Kapilaben has been appointed as trustee in substantial compliance with the mode of succession contemplated in the scheme, in the opinion of this court, the appeal does not deserve consideration.

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5.1 It is misconceived for the learned counsel for the appellants to rely upon Charity Commissioner vs. Nagarbhai Madhavdas & Ors. - 1994(2) GLR 1089. In that case in defiance of the mode of succession by inheritance, the person other than heir of deceased trustee was sought to be appointed under the garb of the change report which was disapproved by this court on finding that section 56(A)(1) of the Bombay Public Trust Act which was pressed into service was not applicable in alteration in the mode of succession in the trusteeship. In the instant case, the mode of succession has been adhered to.

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In above view of the matter, this court is unable to find any reason to entertain the appeal. The appeal fails and is dismissed.

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(G.R.UDHWANI, J)

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R/FIRST APPEAL NO. 617 of 2020

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This appeal involving substantially the same subject as the aforementioned first appeal, with the only distinction that order

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Page 4 of 5

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C/FA/616/2020 ORDER

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granting change report underwent scrutiny of three judicial authorities; also is liable to be dismissed as the grant of change report in the opinion of this court was just and proper since the same was inconformity with mode of succession discussed (supra). The reasons assigned for not entertaining the appeal (supra) shall also apply to this appeal.

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Accordingly appeal fails and is dismissed.

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(G.R.UDHWANI, J)

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niru*

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Page 5 of 5

vitthalbhai lallubhai patel v. Kapilaben Madhusudhan Mahant

Case brief

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vitthalbhai lallubhai patel v. Kapilaben Madhusudhan Mahant

Case brief

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