ORDER
Arvind V. Savant, J.
1. Heard all the learned Counsel; Shri R. S. Apte for the heirs of Appellant No. 1, Shri A. A. Kumbhakoni for the heirs of original respondent No.1. Shri K.K. Tated, Assistant Government Pleader for Charity Commissioner, and State of Maharashtra, Respondents Nos. 2 and 3.
2. This appeal of 1979 has been placed before us pursuant to the order passed by the learned Chief Justice on a reference made by a learned Single Judge on 17th August 1994 for deciding the following three questions:
(1) Whether an appeal filed under section 72(4) of Bombay Public Trusts Act, 1950 is subject to restrictions and limitations imposed on a 'Second Appeal' as prescribed under section 100 of the Code of Civil Procedure? Whether an appeal under section 72(4) of the Act is maintainable even on questions of fact, mixed questions of fact and law or mere question of law?
(2) Whether the trust known as Gangubai's Shri Datta Trust, situate at Solapur created under the Deed of Trust dated 13th November 1941 is a public trust or is a private trust and whether the properties of the said trust including the income thereof are liable to be considered as income of public religious or charitable trust or as private income?
(3) Whether in any event the said trust is a public charitable trust in so far asit provides for utilization of 20% of its income for education of poorstudents, maintenance of poor widows and for assistance to the poor inconnection with marriage or death, If so, whether the said trust is in anyevent liable to be registered under the Bombay Public Trusts Act, 1950?
In view of the conflicting opinions expressed by some of the Single Judges of this Court, it has become necessary for us to decide, principally, question No. 1. framed above. However, before coming to the questions of law, few facts may be stated.
3. On 13th November 1941 Smt. Muniyabai @ Gangubai Sevakram Pardeshi of Solapur created a trust known as 'Gangubai's Datta Trust'. The Deed of Trust is at Exhibit 66. The original respondent No. 1 Leelabai was the daughter of Kausalyabai, who was the daughter of the settlor Smt. Muniyabai alias Gangubai. Gangubai also executed a Will (Exhibit 100) on August 30, 1946. It appears that Leelabai also claimed that on the 9th April 1948, her grand mother Gangubai, had orally gifted the properties in her favour. The properties which are the subject matter of dispute before us are (i) House No. 95/B, corresponding to C.T.S. No. 8489/2 admeasuring 135.45 sq. mtrs. Murarji Peth, Solapur, on which the 'Datta Mandir' is situated and (ii) House No. 95/C, corresponding to C.T.S. No. 8489/1, admeasuring 1.31 Acres on which the chawl is situated. We will refer to the details of the trust deed in the latter part of this judgment; suffice it to say that nearly 80% of the income viz. the rent derived from the tenements in the chawl situated in house No. 95/C was to be spent for performing pooja and observing religious festivals at the Datta Mandir as per the wishes of thesettlor and only 20% of the income was to be spent for purposes, which could be called public purposes.
4. On 29th May 1952 Leelabai filed an application before the Assistant Charity Commissioner, Pune Region, Pune claiming that the properties in dispute were her private properties and were not the properties of a public trust. By his order dated 9th June 1953, the Assistant Charity Commissioner, on consideration of the deed of trust and other materials before him, held that the trust was not a public trust but was the private property of Gangubai, the settlor. In a suo motu proceeding by the Charity .Commissioner, the order dated 9th June 1953 was set aside on 24th January 1959 and the matter was remanded to the Assistant Charity Commissioner for a fresh enquiry in accordance with law. The original appellant in this Court Shivprasad Pardeshi filed an application on 6-8-1959 under section 19 of the Bombay Public Trusts Act, 1950 for registration of the trust claiming himself to be the trustee on the basis of the deed, of trust dated 13th November 1941. Though in the application Shivprasad Pardeshi claimed himself to be a trustee, it is necessary to mention at this stage itself that he is not one of the five trustees mentioned in the deed of trust. On 30th October 1960 the Charity Commissioner, directed that both the applications, that is to say, one filed by Leelabai and the other filed by Shivprasad viz. Application No. P.T.R. 3/2487/ 52 of Leelabai and 159/1959 of Shivprasad, be heard and decided together.
5. On 23rd July 1961 Leelabai and Shivprasad entered into an agreement, on a stamp paper of Rs. 1.50 (Exhibit 30), whereby Shivprasad agreed that he will not pursue his application before the Charity Commissioner and agreed to withdraw the same. Shivprasad also declared on the stamp paper that neither he nor his heirs had any right, title or interest in the two properties in dispute, viz. House No. 95/B and 95/ C. On 16th July 1963 Leelabai filed her written statement opposing the application of Shivprasad. On 24th October 1963 Shivprasad filed a pursis which is at Exhibit 32, stating that he did not desire to pursue his application which was made on 6th August 1959 for registration of the public trust under section 19 of the Act. Reading Exhibit 30, the agreement dated 23rd July 1961 between Shivprasad and Leelabai and Exhibit 32, the pursis dated 24th October 1963, filed by Shivprasad before the Assistant Charity Commissioner, it is clear that Shivprasad did not desire to pursue the matter and accepted Rs. 500/- in full and final settlement of his claim and had given up all his right title and interest in the properties in dispute.
6. On 14th September 1971, the Assistant Charity Commissioner concluded both the enquiries and came to the conclusion that Gangubai's Datta Trust should be registered as a public trust under the provisions of the Bombay Public Trusts Act, 1950, and a certificate under classification 'A' be issued in favour of the said Trust and be delivered to the trustee Leelabai. Being aggrieved by the above decision of the Assistant Charity Commissioner, Leelabai preferred two appeals before the Deputy Charity Commissioner, Maharashtra State, Bombay, bearing Appeal Nos. 134 and 135 of 1971. The Deputy Charity Commissioner, Maharashtra State, framed the issue for determination as to whether the trust in question was a public trust and by his common judgment and order dated 31st January 1973 allowed both the appeals and set aside the findings and the order passed by the Assistant Charity Commissioner in both the enquiries and declared that the temple in question was not a public trust and hence did not require registration under the Bombay Public Trusts Act.
7. Against the said judgment and order dated 31st January 1973, Shivprasad filed Civil Misc. Application No. 139 of 1973 under section 72(1) of the Act, in the District Court at Solapur. The learned Extra Assistant Judge, Solapur, by his judgment andorder dated 29th November 1978 came to the conclusion that, on a true construction of the relevant clauses of the trust deed, it was clear that there was no intention to create a public trust. Placing reliance upon some of the decisions of this Court, laying down the tests for determining the question as to whether a trust constituted a public trust or not, the Extra Assistant Judge, Solapur held that Gangubai's Datta Trust was a private trust. In the result, the application filed by Shivprasad was dismissed on 29th November 1978. It is against this judgment and order dated 29th November 1978 that the present appeal has been filed, which was admitted on 26th July 1979 and on a reference being made by the learned Single Judge (Dhanuka, J,) on 17th August 1994 the same has been placed before us for deciding the questions stated above.
8. Having regard to the conflicting views expressed by the Single Judges of this Court, it is necessary for us to first address ourselves to the first question as to whether an appeal filed under section 72(4) of Bombay Public Trusts Act, 1950, like the present one, is subject to the restrictions and limitations imposed on a 'Second Appeal' as prescribed under section 100 of the Code of Civil Procedure? In other words whether such an appeal, though registered in this Court as a 'First Appeal' is maintainable even on questions of fact or whether it can be entertained only if the High Court is satisfied that the case involves a substantial question of law, within the meaning of sub - section (1) of section 100 of the Civil Procedure Code. We propose to deal with this question before dealing with the merits of this appeal.
9. Section 2(13) of the Bombay Public Trusts Act, defines a 'public trust' to mean an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860. Section 18 of the said Act deals with registration of public trusts and sub section (1) stipulates that it shall be the duty of trustee of a public trust to make an application for the registration of the Pubic Trust. Section 19 deals with the inquiry for registration which is to be made by the Deputy or Assistant Charity Commissioner in the manner prescribed for ascertaining the relevant factors for determining whether a trust exists and whether such trust is a public trust. On completion of the enquiry, the Deputy or Assistant Charity Commissioner has to record his findings, with reasons, as provided in section 20 and section 21 deals with the entries to be made in the register.
10. Section 70 deals with an appeal against the order of the Deputy or Assistant Charity Commissioner to the Charity Commissioner in respect of a finding under section 20 and some other provisions with which we are not concerned. Section 72(1) provides that any person aggrieved by the decision of the Charity Commissioner under various sections, including section 70, on the question as to whether a trust is a public trust or not, may, within 60 days from the date of the decision, apply to the Court to set aside the said decision. Section 2(4) defines 'Court' to mean, in Greater Bombay, the City Civil Court and elsewhere, the District Court. It is thus clear that Misc. Civil Application No. 139 of 1973 filed by Shivprasad in the District Court at Solapur was an application under section 72(1) against the judgment and order dated 31st January 1973 passed in appeal by the Deputy Charity Commissioner.
11. Sub section (2) of section 72 empowers the Court after taking evidence if any, to either confirm, or revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. In effect, the application to the District Court in this case was an appeal against theappellate order passed by Deputy Charity Commissioner in exercise of his powers under section 70 of the Act. The initial findings were recorded by the Assistant Charity Commissioner in the inquiry under section 19 when he held that the trust was a public trust. Against the said order dated 14th September 1971 an appeal was filed under section 70 to the Deputy Charity Commissioner who was delegated the powers of the Charity Commissioner. The Deputy Charity Commissioner exercised his powers while allowing the appeal on 31st January 1973 and it was against this appellate order that Shivprasad had filed Misc. Appln. No. 139 of 1992 in the District Court, albeit, under section 72(1) of the said Act. Against the decision dated 29th November 1978 given by the District Court, the present appeal has been filed.
12. The short question of law is whether the appeal before us should be treated as a 'First Appeal' as understood under section 96 of the Civil Procedure Code which deals with appeals from original decree or whether this appeal, though styled as 'First appeal' in this Court, is in substance and effect a Second Appeal, subject to the limitations of section 100 of the Civil Procedure Code where an appeal can be entertained only if the High Court is satisfied that the case involves a substantial question of law. Let us consider the law on the subject.
13. In D.R. Pradhan v. The Bombay State Federation of Goshalas and Panjarapoles, 1956 (58) Bom.L.R. 894 though the question arose in a different contest while deciding the issue of limitation for making an application for setting aside the decision of the Charity Commissioner under section 72(1) of the Act, Chief Justice Chagla, observed at page 896 as under -
'Now, although section 72(1) confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the City Civil Court. We must look at and consider the real nature of the right that is conferred by this subsection. In substance, if not in form, the right is in the nature of an appeal. The application is intended to set aside the decision of the Charity Commissioner and the City Civil Court must consider that decision, and if satisfied that the decision is erroneous, must set it aside and give the necessary relief to the party aggrieved by that decision. Therefore, in substance there is very little difference between an application contemplated by section 72(1) and a right of appeal against the order of the Charity Commissioner.'
The above observations make it clear that; in substance, the application made under section 72(1) to the District Court in the case before us was in the nature of an appeal. In fact it was an appeal against the appellate order passed under section 70 of the said Act.
14. The question arose directly before the Apex Court in Ramchandra Govind Pandit & another v. Charity Commissioner, State of Gujarat : [1987]2SCR1083 wherein the Deputy Charity Commissioner had started a suo motu enquiry with regard to the nature of the properties in dispute. He held that the properties were of a public trust. Appeal against the said order was dismissed by the Charity Commissioner. Application to the City Civil Court was also dismissed. First Appeal filed in the High Court of Gujarat was dismissed by the High Court. The appellant then filed Letters Patent Appeal. It was also dismissed, holding that the appeal was not maintainable since the requisite certificate under Clause 15 of the Letters Patent was not obtained by the appellant. It was against the dismissal of the letters patent appeal, that the appellant moved the Apex Court. The Division Bench had dismissed the Letters Patent Appeal relying upon an earlier judgment rendered by another Division Bench inHiragar Dayagar v. Ratanlal : AIR1973Guj15 . Theratio of the decision of Hiragar's case is that the Single Judge who disposed of theappeal under section 72(4) was hearing an appeal in respect of an order made in theexercise of appellate jurisdiction by a Court subject to the superintendence of the HighCourt and that, therefore, it was necessary for the appellant to obtain a certificate fromthe Single Judge that the case was a fit one for appeal to the Division Bench underClause 15 of the Letters Patent Appeal. The Apex Court considered the contrary viewexpressed by the Division Bench of this Court in Khivaraj Chhagniram Zavar andanother v. Shivshanker Basappa Lingashetty and another : AIR1974Bom40 . ThisCourt had held that section 72(1) of the Act provides a remedy by way of anapplication only. Though the functions of the District Judge under this section aresimilar to the functions performed by an Appellate Court, the decision of the DistrictJudge is not one in an appellate jurisdiction. Hence, where a Single Judge hears anappeal from the decision of the District Judge under section 72, he does not hear anappeal from the decision of an Appellate Court within the meaning of Clause 15 of theLetters Patent and an appeal against the decision of the Single Judge in such a casecan be filed without obtaining leave from him. In arriving at this conclusion in Khivraj'scase, the Division Bench had distinguished the ratio of D.R. Pradhan's case which wehave discussed above. The Apex Court case considered the conflicting views of thisCourt in D.R. Pradhan's case and in Khivaraj's case as also the views expressed byGujarat High Court in Hiragar Dayagar's case. The Apex Court considered the schemeof the provisions of the Bombay Public Trusts Act and found it difficult to agree withthe view expressed in Khivaraj's case. The Apex Court specifically agreed with thereasoning expressed by Chief Justice Chagla in D.R. Pradhan's case as also the viewexpressed in Hiragar's case. We find it convenient to reproduce the observations of theApex Court in paragraphs 8 and 9 in Ramchandra Pandit's case at page 1600 and 1661:
'8. We have considered the reasoning in the three judgments referred above.With respect, we find it difficult to agree with the reasoning in : AIR1974Bom40 . We agree with the reasoning in the other two, cases. Theslender thread on which the appellants' arguments rest is the absenceof the word 'appeal' in section 72(1). That alone cannot decide the issue.If the well known word 'appeal' had been used in this section that wouldhave clinched the issue. It is the absence of this word that hasnecessitated a closer scrutiny of the nature, extent and content of thepower under section 72(1).
9. The power of the District Court in exercising jurisdiction under section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under section 72. To decide this case we must be guided not only by the nomenclature used by the section for the proceedings but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under section 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction 'while disposing of a matter under section 72(1). Consequently, the Single Judge of the High Court while deciding the appeal from the orderof the District Court deals with a matter made by the District Judge in theexercise of an appellate jurisdiction by a Court subject to the superintendenceof the High Court and hence Cl. 15 of the Letters Patent isdirectly attracted.'
The ratio of the decision of Ramchandra Pandit's case leaves no doubt in our mindthat all the powers of an Appellate Court are available to the District Court whiledeciding an 'application' under section 72 and we must not decide these issues onlyby the nomenclature used by the section but by the essence and content of the powerconferred upon the District Court or City Civil Court under section 72 of the Act. Thatbeing the position, it would follow that the proceedings before the District Court undersection 72(1) are undoubtedly in the nature of an appeal and what the District Courtdoes is to exercise appellate jurisdiction while disposing of the 'application' undersection 72(1). In Ramchandra Pandit's case the Apex Court dismissed the appeal onthe ground that the High Court was right in coming to the conclusion that no LettersPatent Appeal was maintainable in the absence of a certificate under Clause 15.
15. Since the question has been referred to us in the light of an apparent conflict between the judgments of some of the Single Judges of this Court, we feel it necessary to make a brief reference to them.
16. In Govindrao Devabasappa Manthalkar v. Apparao Devabasappa Manthalkar : (1987)89BOMLR507 A.C. Agarwal, J., was dealing with an identical question as to the nature of the proceedings before the District Court under section 72(1) of the Act. The other question was as to whether the appeal filed against the order of the District Court, though styled in this Court as a 'First Appeal', should be treated as a 'Second Appeal' subject to the limitations imposed by section 100 of the Civil Procedure Code. On construction of the relevant provisions of the Act and relying upon the decision of the Apex Court in Ramchandra Pandit's case, Agarwal, J., held that, if one considered the scope, ambit and content of the proceedings before the District Court it will have to be held that the District Court would be exercising appellate jurisdiction. The District Court while dealing with an application under section 72(1) was given the power to confirm, revoke or modify a decision of the Charity Commissioner. In substance the application is intended to set aside the decision of the Charity Commissioner and one must consider the real nature of the right that is conferred by the subsection. Consequently it was held that the appeal though styled as 'First Appeal' arises out of an order passed by the District Court in appeal and hence the same shall be treated as a second appeal which has to satisfy the requirements of section 100 of the Code of Civil Procedure.
17. Maqbul Ahmed Miya Girav and others v. Hidayatulla Baldi and another, 1992 M.L.J. 1526 decided by one of us, (Savant, J.,), dealt with a similar question and relying upon the decision of the Apex Court in Ramchandra Pandit's case : [1987]2SCR1083 (supra) and of this Court in D.R. Pradhan's case, 1956 (58) Bom.L.R. 894, it was held that the appeal under section 72(4) of the Act to this Court, though styled as 'First Appeal' was in the nature of a 'Second Appeal' and will have to satisfy the requirements of section 100 C.P.C.
18. In Godawaribai wd/o. Manilal Trivedi and others v. Rambhau Madhaorao Fating and others, 1992 M.L.J. 230 M.S. Deshpande, J., while dealing with a similar question expressed a contrary view relying upon the judgment of a learned Single Judge of the Gujarat High Court (A.M. Ahmadi, J., as His Lordship then was) in Miya Mohamed Abdul Karim v. Collector of Surat, XVIII G.L.R. 488. However, since the Counsel agreed that the matter should be disposed of on the basis of the evidence andthey would have no objection to the evidence being considered, as if it was a First Appeal, Deshpande, J., did not think it necessary to make a reference to a larger Bench.
19. Recently, R.G. Vaidyanatha, J., while disposing of a group of First Appeals (F.A. 1587 of 1996 and other Companion Appeals) on 13th March 1997 held that though an appeal under section 72(4) may be a second appeal under the Act, it does not come within the meaning of a second appeal under section 100 C.P.C. Vaidyanatha, J., referred to the views expressed by other Single Judges of this Court and though he agreed that the appeal was a second appeal, he came to the conclusion that, there were no words of limitation in sub section (4) of section 72 so as to restrict the powers of this Court as if it were a second appeal under section 100 C.P.C.
20. At this stage, it is necessary to mention that the view expressed by the Apex Court in Ramchandra Pandit's case (supra) has been recently reiterated by the Apex Court in Nanabhai Dayabhai Patel and another v. Suleman Isubji Dadabhai : [1996]1SCR382 . The Apex Court was dealing with an appeal by Special Leave from the judgment of the Gujarat High Court in L.P.A. No. 10/76 decided on July 27, 1979. In that case the initial enquiry was before the Assistant Charity Commissioner under section 18 of the Act. Against the order of registration the matter was carried in appeal under section 70 of the Act, which appeal was dismissed by the Charity Commissioner. The First appeal to the High Court was allowed and a further Letters Patent Appeal was allowed by the Division Bench. On an appeal by Special Leave to the Apex Court, the question arose as to whether the Letters Patent Appeal against the decision of the Single Judge would lie, without obtaining the requisite leave under Clause 15. In paragraph 4 of the judgment at page 1186, the Apex Court referred to its earlier decision in Ramchandra Pandit's case (supra), summarized the facts and the ratio in that case and concluded thus in para 5 of the judgment at page 1186:
'5. Consequently, this Court had held that the letters Patent Appeal against the decision of the learned Single Judge did not lie. The same ratio applies to the facts in this case. Leave of the learned Single Judge was admittedly not obtained for filing the appeal. Consequently, since the appeal of the learned Single Judge arises under the Act by virtue of the statutory conferment of supervisory jurisdiction, by operation of earlier part of Clause 15 of the Letters Patent Act would vest in him. The Letters Patent Appeal would not lie to the Division Bench unless the certificate of the learned Single Judge has been granted for leave to appeal. In that view, the appeal to the Division Bench was incompetent and is accordingly set aside.'
The above ratio of the Apex Court decision leaves no doubt in our mind that the appeal under section 72(4) is in the nature of a second appeal against which alone, leave under Clause 15 of the Letters Patent is required for a further appeal to the Division Bench. It is obvious that if the appeal under section 72(4) to the High Court was, in substance, a 'First Appeal' and was not a 'Second Appeal', there was no question of insisting upon leave under Clause 15 being obtained before filing a Letters Patent Appeal to the Division Bench.
21. There is yet another aspect of the matter which has not been considered in any of the judgments of this Court and we think it necessary to make a reference to the same. Sub section (1) of section 4 of the C.P.C. provides that, in the absence of any specific provisions to the contrary, nothing in the C.P.C. shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any otherlaw for the time being in force. Sub section (1) of section 100 of C.P.C. provides that save as otherwise expressly provided in the body of the C.P.C. or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. In our view, therefore, if a special law does not otherwise widen the scope of a 'second appeal', such a second appeal must conform to the limits imposed by section 100 of the C.P.C. There may be cases where a special statute provides for the remedy of a second appeal and specifically confers powers wider than those contemplated by section 100 C.P.C. In such a case, it may be possible to contend that having regard to the opening words o( sub-section (1) of section 100 C.P.C., a second appeal on ground wider than those provided in section 100 C.P.C., could be entertained if the special law so provides.
22. In Chunilal Vithaldas v. Mohanlal Motilal Patel, A.I.R. 1967 S.C. 226 the question arose in the context of the provision for a second appeal under section 28 of the Saurashtra Rent Control Act, 1951. The question was whether the Appellate Court dealing with the Second Appeal was bound by the same restrictions as are imposed by section 100 C.P.C. It was argued before the Apex Court that a Second Appeal under section 28(1) of the Saurashtra Rent Control Act, 1951 meant an appeal from an appellate decree but the restrictions imposed by section 100 C.P.C., upon the power of the High Court were not attracted to a 'Second Appeal' under section 28 of the Saurashtra Act. The Apex Court considered the Scheme of the provisions of the Saurashtra Act, 1951 and of the C.P.C., and concluded in para 9 of the judgment that the Saurashtra Act had merely declared that the second appeal will lie to the High Court against the decrees or orders passed by the courts exercising jurisdiction under section 27, but thereby the essential character of a Second Appeal under the C.P.C. was not altered. There was nothing in the Special Act to conclude that the legislature had intended to confer upon litigants a right of second appeal unhampered by the restrictions imposed by section 100 C.P.C. The Apex Court concluded that in a Second Appeal under section 28 of the Saurashtra Act, questions which cannot be raised in an appeal under section 100 C.P.C., could not be raised. It was, therefore, held that a Second Appeal under section 28 of the said Act may be entertained by the High Court within the limits prescribed by section 100 C.P.C. and it is not open to the parties to demand reappraisal of the evidence by the High Court. Observations to this effect are also to be found in paras 10 and 12 of the said decision at page 228.
23. We find the same principle enunciated by the Apex Court in State of Himachal Pradesh v. Maharani Kam Sundri : AIR1993SC1162 . This was a case where the Special law gave wider powers to the High Court and by virtue of section 104 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, the High Court was entitled to reappraise the evidence and come to its own findings even in a Second Appeal. Since the special law viz. the said Himachal Pradesh Act conferred wider powers by virtue of section 104 on the High Court, it was held that the limitations imposed by section 100 C.P.C. on the powers of the High Court to interfere with the findings of fact were not applicable and, hence, the High Court was entitled to reappraise the evidence and come to its own findings in view of the wider scope of section 104 of the Special Act. These observations are to be found in para 3 of the judgment.
24. We may also refer to a Full Bench decision of the Punjab and Haryana High Court in Ganpat v. Smt. Ram Devi and others, A.I.R. 1978 P. & H. 137 S.S. Sandhawalia, J., (as he then was) dealt with the provisions of section 41 of the Punjab Courts Act, 1918 which were no way affected or curtailed by the amended provisionsof section 100 C.P.C. The provisions of section 41 of the Punjab Courts Act were virtually in pari materia with the unamended provisions of section 100 C.P.C. But, though provisions of section 100 C.P.C. were amended by the Amending Act of 1976, there was no corresponding amendment to section 41 of the Punjab Courts Act, under which the Second Appeal was entertained. Relying upon the provisions of sub-section (1) of section 4 as also sub section (1) of section 100 C.P.C. the Full Bench came to the conclusion that if the Special law had conferred wider jurisdiction on the High Court while dealing with the Second Appeal under section 41 of the Special Law, the limits imposed by section 100 C.P.C. could not curtail such powers. These conclusions are to be found in paras 11 to 14 of the judgment at page 140 of the report.
25. In view of the law laid down by the Apex Court in the two cases discussed in paras 22 and 23 above Chunilal Vithaldas's case and Maharani Kam Sundari's case (supra) as also the view expressed by the Full Bench of the Punjab & Haryana High Court in Ganpat's case para 24 above coupled with the fact that the ratio of the Apex Court decision in Ramchandra Pandit's case (supra) has been reiterated in Nanabhai Dayabhai Patel's case (supra) and having regard to the fact that section 72(4) of the Bombay Public Trusts Act, does not confer any powers wider than those conferred by section 100 C.P.C. while dealing with a Second Appeal, we are clearly of the view that the answer to the first part of first question referred by the learned Single Judge must be in the affirmative. We, therefore, hold that an appeal filed under section 72(4) of the Bombay Public Trusts Act, is subject to the restrictions and limitations imposed under section 100 C.P.C. while entertaining Second Appeal. Consequently it would follow that an appeal under section 72(4) would lie to this Court only if the High Court is satisfied that the case involves a substantial question of law. In substance, such an appeal will be subject to the same limitations as are prescribed under section 100 C.P.C. since there is nothing in section 72(4) of the Bombay Public Trusts Act which confers a wider jurisdiction upon this Court while hearing such an appeal, though styled as a First Appeal.
26. In the light of our above conclusion, we will proceed to deal with the merits of the appeal before us. Since question Nos. 2 and 3 referred to us deal with the merits of the case we would first discuss the merits and then answer the said two questions.
27. The evidence led by the parties consists of the oral evidence of the original appellant Shivprasad at Exhibit 65, his witnesses Jayaram Pardeshi Exhibit 73, and Parshuram Gangaram Gore Exhibit 74 and of the original opponent, respondent Mo. 1 Leelabai, grand daughter of the settlor Gangubai at Exhibit 86. Parties have also led documentary evidence consisting of the Trust Deed dated 13th November, 1941 at Exhibit 66, Will dated 30th August 1948 of Gangubai at Exhibit 100 and several other documents including rent receipts, extracts of City Survey, permission granted by Leelabai and similar other documents. The oral evidence of Shivprasad Pardeshi at Exhibit 65 does not make it clear as to how he claims as a trustee under the Deed of Trust, though, admittedly, he is not one of the five trustees appointed by the original settlor. Shivprasad only deposes to certain ceremonies, utsav and poojas to be performed at the Datta Mandir. In his cross examination he admits that Leelabai controlled even the admission to the Mandir and no special 'Bhajan' or programme could be held unless Leelabai's permission was obtained. Shivprasad admits that he had executed an agreement on 23rd July 1961 at Exhibit 30 on a stamp paper and pursuant to it he had submitted a 'purshis' on 24th October 1963 at Exhibit 32. Shivprasad's witness Jayaram Pardeshi at Exhibit 73 was one of the trustees appointed by the District Court. His name was suggested by Gangubai for appoint-ment as a trustee. In his cross-examination Jayaram Pardeshi admits that Gangubai herself was managing the affairs of the trust and he did not know the extent of the grains received in the box kept in the Mandir and the expenses incurred for the 'Bhandara'. He admits that even in private temples such festivals are celebrated and he used to attend the work which was assigned to him by Gangubai. Shivprasad's other witness Parshuram Gore at Exhibit 74 only deposed to the 'Poojas' and 'Bhajans' being performed at the Mandir.
28. Original respondent No. 1 Leelabai in her evidence at Exhibit 86 makes it clear that the Mandir was constructed by Gangubai out of her own earnings and she had constructed the chawl on the adjoining property for meeting the expenses to be incurred for the festivals and other activities at the Mandir. Leelabai categorically stated that if any one had to perform any 'poojas' or hold any 'bhajans' in the temple, he had to obtain the permission of Gangubai. One such permission obtained by 'Gurunath Prasadik Bhajani Mandal has been produced at Exhibit 87, executed by its President where the Bhajani Wanda! categorically agrees that they are performing the 'Bhajan' with the permission of Gangubai and as and when Gangubai revokes the permission, they would stop performing the Bhajan. They even said that they had no right, title or interest in performing the Bhajan. Leelabai has also produced documents to show that she collected the rent in respect of the chawl on the adjoining property bearing house No. 95/C and she executed the rent receipts. The extracts of city survey of the two properties produced at Exhibit 88 and 89 are in the name of Leelabai. Exhibits 90 and 91 are in the name of Gangubai. The taxes of the property were paid by Leelabai. The bills and the receipts in respect thereof have been produced by her. Exhibit 94 collectively, are Municipal bills for taxes and 13 receipts which are in the name of Leelabai. She has deposed in detail as to how the 'Mandir' was treated, initially, as a private property of Gangubai and, later on, as her private property. It is of some significance to note that Gangubai had even executed a Will on 30th August 1946 at Exhibit 100. In it, she recorded that, even during her life time, the trustees did not look after the management of the Mandir's property and she was, therefore, convinced that after her death they would not bother to look after the management of the Mandir and, hence, she thought it proper to bequeath the said property to her daughter's daughter viz. to Leelabai.
29. In this appeal we need not examine the question as to whether a trust created by a non-testamentary document like Exhibit 66, could either be extinguished or revoked by a testamentary document like a Will, Exhibit 100. Gangubai died some time in the year 1972, though the exact date is not on record. Section 77 of the Indian Trusts Act 1882 deals with the manner in which a trust is extinguished and section 78 deals with the revocation of a trust. It is not necessary for us to examine that question since that is not the issue framed in the Court below nor is it a question referred to us. Though, therefore, we do not express any opinion on the effect of the Will executed by Gangubai on 30th August 1946 bequeathing the two properties being House Nos. 95-B and 95-C to Leelabai, the fact that Gangubai treated the property as her private property is evident from this conduct as well and, in our view, making of a Will by Gangubai bequeathing the said properties to her grand-daughter Leelabai is one more circumstance to indicate as to how the settlor treated the properties during her life time. We will deal with the tests laid down by the Apex Court for deciding the nature of a trust and will also refer to the deed of trust which assumes importance where such a deed is available and the origin of the trust is not lost in antiquity or is not obscure.
30. Coming to the Deed of Trust Exhibit 66 dated 13th November 1941, the settlor Gangubai says that the properties mentioned in the schedule were her separate properties owned by her exclusively. The 'Datta Mandir' was known as 'Gangubai's Datta Mandir'. Since she was a worshipper of Lord Datta, she considered it necessary to construct a Mandir in her property out of her own monies and provide for the pooja and other rituals to be performed at the said Mandir. In clause 3-A, the name of the trust is given as 'Gangubai's Datta Mandir'. The object of the trust was to perform poojas regularly at the mandir. The trustees were five in number. Gangubai was the Sarpanch and the four other trustees were (i) original respondent Leelabai Badrinarayan (grand daughter of the settlor Gangubai) (ii) Brijlal Mohanlal Pardeshi, (iii) Rajaram Balgovind Pardeshi, and (iv) Hanumanprasad Sukhlal Pardeshi. It is only after her death, that Gangubai contemplated her nephew Shankerlal Eknath Pardeshi being elected as a trustee and in the event of his death, a family member having good conduct and behaviour should be appointed as such trustee. No evidence has been produced before us by Shivprasad who claims to be the son of Shankerlal, that firstly, on the death of Gangubai, Shankerlal was elected as a trustee and then, on Shankerlal's death, Shivprasad was appointed as a trustee. Shri Apte fairly stated that no document was available and he could not substantiate that Shivprasad was a trustee of the trust. In fact we wonder what locus Shivprasad has to pursue the litigation in this Court. However, we will decide the nature of the trust having regard to the tests laid down by the Apex Court and the entire evidence led by the parties. The trust deed further stipulates that the affairs of the trust should be carried on by the trustees and the decisions should be arrived at by majority. The other clauses in the Trust Deed make it clear that nearly 80% of the income from the tenements in the chawl shall be spent for performing poojas and holding functions during several festivals and only remaining 20% is to be spent for the education of poor students from Gangubai's community or for the maintenance of the poor widows belonging to Gangubai's community or for the marriage and funeral expenses of poor person from her community.
31. The above provisions in the trust deed and the oral and documentary evidence overwhelmingly suggests that the properties were the private properties of Gangubai and were always treated as such by Gangubai and, on her death, by Leelabai. The evidence further shows that only 20% of the income was to be spent for public purposes viz. education, maintenance, marriage or funeral expenses of poor and needy persons belonging to Gangubai's community. The family of the settlor and her relatives retained dominant control over the affairs of the trust. The settlor herself managed the properties of the trust and one of the trustee Jayaram Pardeshi, Exhibit 73, admitted that though he was a trustee, he discharged the duties assigned to him by Gangubai who was in full control of all the assets. In the light of this evidence let us examine the tests laid down by the Apex Court in deciding the nature of a trust in such cases.
32. In Babu Bhagwan Din and others v. Gir Har Saroop and others the original grant was to the respondents' ancestor. The property in question comprised of land on which stood the temple. The respondents, who claimed to be the descendents of the original grantee were 'grahastha fakirs'. There was no proof that there had been any interference with the management of the properties. There was evidence, however of members of the Hindu Public having resorted to the temple for worship and darshan without any obstruction. An annual mela used to be held for many years with public subscription on the grounds of the temple. Yet the PrivyCouncil held that the general effect of the evidence was that the family had treated the temple as family property and the mere fact of the members of the public having come to the temple and having made offerings and me/a having been held which gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away were not enough to hold the temple and the properties as a public trust. At page 11 of the report, the Privy Council observed that worshipers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol. Dedication of a temple as a public temple, must be considered in their historical setting in such a case as the present and the dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public is hazardous, since it would not, in general, be consonant with Hindu sentiments or practice that worshipers should be turned away and as worship generally implies offerings of some kind it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity.
33. The Apex Court approved of the above approach of the Privy Council while deciding the case of The Bihar State Board of Religious Trust, (Patna), v. Mahanth Sri Biseshwar Das : [1971]3SCR680 . In paragraph 15 of the judgment at page 2061-62 a reference is made to the Privy Council decision in Babu Bhagwan's case and then at the end of paragraph 15 at page 2062 the Apex Court observed Thus, the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right.'
34. In Dhaneshwarbuwa Guru Purshottambuwa v. The Charity Commissioner, State of Bombay : [1976]3SCR518 the question arose whether the expression in Sanad was determinative of the nature of temple as public trust. The Apex Court observed that when the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, and on a consideration of several factors such as the object and purpose for which the trust was created, the consistent manner in which the property has been dealt or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purpose as a matter of right without the least interference or restrictions from the temple authorities, to foster maintenance of the worship, the accretion to the trust property by way of grants from the State or gift from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property which are all, important elements in determination of the question whether a property is a private or a public religious endowment. These observations are to be found in para 44 of the judgment at page 878.
35. In Radhakanta Deb and another v. The Commissioner of Hindu Religious Endowments : [1981]2SCR826 , the Apex Court considered several of its earlier decisions and on a conspectus of the authorities, laid down certain tests as providing sufficient guidelines to determine, on the facts of each case, whether an endowment is of a private or of a public nature. The said tests are to be found in para 14 of the judgment at pages 801 and 802 as under:
'1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;
2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the rnanagement. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated (or the purpose of the maintenance of the temple belonging to the founder himself, this wilt be a conclusive proof to show that the endowment was of a private nature;
4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.'
36. In the light of the above tests, let us consider the facts of the case before us where a deed of trust is available and the origin of the trust is neither lost in antiquity nor is it obscure. We have referred to the important clauses of the trust deed. We have already discussed the evidence of the rival parties. All this leads us to hold that (i) the temple was constructed on a land belonging to Gangubai, out of her own funds; (ii) the property stood in Gangubai's name in her life time and, thereafter, in the name of her grand daughter Leelabai; (iii) the management of the trust under the trust deed was vested in certain panchas of which, during her life time, Gangubai was the sarpanch; (iv) the other members were either related to her or were from her community; (v) the evidence of one of the trustees shows that the entire affairs were managed by Gangubai; (vi) Jayaram Pardeshi in his evidence at Exhibit 73 says that though he was a trustee, he only did the work which was assigned to him by Gangubai; (vii) the bills for the taxes on the properties of the Trust were sent to Gangubai and then to Leelabai and they have paid the taxes and the receipts on. record are in their names; (viii) Rent was received by Gangubai end later on by Leelabai (ix) the entire management vested indisputably in Gangubai's hands and, thereafter, in Leelabai's hands, and (x) Gangubai treated the properties all along as her personal property as is evident from the fact that though the trust was created under the deed dated 13th November 1941 (Exhibit 66), Gangubai executed a Will on 30th August 1946 (Exhibit 100) and bequeathed the property to her grand daughter, Leelabai, the reason being that she was not satisfied with the management of the affairs of the trust by the trustees and there is a recital in the Will that 'if in my own life time the trustees did not properly manage the affairs of the trust, it was unlikely that on my death they would do it'. All these circumstances lead us to only one conclusion that Gangubai all along retained the control of the two properties during her life time and on her death, it was Leelabai who controlled them. The oral and documentary evidence unmistakably leads to only one conclusion that the properties, at all times, were treated as the private properties of the said Gangubai and, thereafter, of her grand daughter Leelabai.
37. It must also be borne in mind that only 20% of the income was supposed to be spent for public purposes like education of poor students from Gangubai's communityor for the maintenance of the poor widows belonging to her community or for the marriage and funeral expenses of poor persons from her community. The predominent purpose of the trust was private and not public. 80% of the income was spent for private purposes. The mere fact that Bhajans, Poojas and festivals were held for which, members of the public had come to the temple and had made offerings and melas were held and the fact that they were never turned away, are not enough to hold that the temple and the properties were a public trust. In our view the properties are the private properties of the settlor. In this view of the matter, we find it difficult to interfere with the findings of fact recorded by the Deputy Charity Commissioner and confirmed by the learned Assistant Judge in proceedings under section 72 of the Act. We must hasten to add that though we have decided earlier that this appeal has to be treated as a Second Appeal subject to the limitations under section 100 C.P.C., we have perused the entire evidence as if it were a First Appeal. Not only we find that the original appellant Shivprasad Shankarlal Pardeshi had no locus whatsoever, but we are of the view that even if the appeal is to be heard as a 'First Appeal' there is no evidence to come to the conclusion that the properties constituted a public trust.
38. In our view, no case has been made out for disturbing the concurrent findings of fact recorded by the Deputy Charity Commissioner and confirmed by the learned Assistant Judge. In this view of the matter our answers to the questions referred to us are as under:---
(1) An appeal filed under section 72(4) of Bombay Public Trusts Act, 1950 is a 'Second Appeal' to this Court and is subject to the restrictions and limitations imposed on a 'Second Appeal' as prescribed under section 100 of the Code of Civil Procedure. There is nothing in the scheme of section 72 of the Bombay Public Trust Act or for that matter any other provisions of the said Act which widens the scope of the appeal beyond the limits prescribed by section 100 C.P.C. In our view therefore, such an appeal is maintainable only if the High Court is satisfied that the case involves a substantial question of law within the meaning of section 100 C.P.C.
(2) The trust known as Gangubai's Shri Datta Trust, situate at Solapur created under the Deed of Trust dated 13th November 1941 at Exhibit 66, is a private trust and is not a public trust. The properties of the said trust including the income thereof were, at all times, the private properties of Gangubai and, on the evidence that has come before us, they clearly appear to have been treated as private properties of Leelabai.
(3) Since the dominant purpose of the trust was of a private nature and since only 20% of its income was being utilised for the education of poor students, maintenance of poor widows and for assistance to the poor in connection with marriage or death, no case has been made out for registration of the said trust in accordance with the provisions of the Bombay Public Trusts Act, 1950.
39. In this view of the matter, there is no substance in this appeal which is accordingly dismissed. In the circumstances however, there will be no order as to costs.
40. Before we conclude, we must record our sincere appreciation for the very able assistance rendered by the learned Counsel S/Shri Kumbhakoni, Apte and Tated.
41. Reference answered.