C.L. Pangarkar, J.
1. This second appeal is preferred by the heirs of original defendant No. 1, being aggrieved by the judgment and order passed by the (Ad hoc) Additional District Judge, Nagpur, whereby he allowed the appeal and decreed the suit.
2. The facts giving rise to this appeal are as follows:
The original plaintiff was one Syed. Gulam Jilani and the original defendant No. 1 was one S.R. Ahmed Advocate and original defendant No. 2 is Charity Commissioner. It is the contention of the plaintiff that the plaintiff is the owner and landlord of house No. 701, 822 and 824, formerly known as house No. 63 in Namak Ganj area of Nagpur. It is the contention of the plaintiff that the said property was orally gifted to him by his maternal uncle Mohd. Raizuddin some time in the year 1925 and accordingly his name was mutated in the Municipal record. Out of the above properties, the plaintiff had gifted municipal house No. 701 (new) and 824 (old) to his wife Alima Begum on 29/5/1970 by a written gift. The plaintiff continued to be the owner of remaining house i.e. house No. 703 (new) and 824 (old). There was certain tenants in house No. 703. The plaintiff had executed a power of attorney in favour of his brother i.e. defendant No. 1 for collecting rent and other legal purposes with regard to house No. 703. The plaintiff had instructed his brother to take legal action against the tenants in the suit premises. Defendant No. 1 had started taking action against those tenants but in his own name as Mutuwalli of Masjid instead of in the name of the plaintiff. The plaintiff discovered this fact in the month of January, 1988. The defendant as a lawyer for plaintiff obtained signatures of the plaintiff on blank papers and stamp papers also. According to the plaintiff, they have been misused by defendant No. 1. It is his contention that the defendant dishonestly and fraudulently got recorded his name as Mutuwalli of the Masjid and plaintiff had never dedicated the property to the Wakf. The plaintiff had been seeking information from defendant No. 1 with regard to the progress of the suit but defendant No. 1 always avoided to give correct information. The plaintiff, therefore, served a notice on defendant No. 1 and demanded back all records from him. The plaintiff submits that he had never dedicated the suit property to the trust and never wanted it to be dedicated. Defendant No. 1 has taken disadvantage of the blank papers with signatures of the plaintiff and has shown the dedication in favour of the trust but in fact the plaintiff never did so. According to him, the Charity Commissioner has been misguided. The record of the trust is incorrect and plaintiff is still the owner of the suit property.
3. Defendant No. 1 filed the written statement and admitted the relationship between the parties. The defendant, however, denied that the suit property was gifted to the plaintiff by Mohd. Raizuddin in the year 1925, as alleged. It is his contention that name of the plaintiff was entered in the record being eldest male member of the family. He also denies gift in favour of plaintiff's wife Alima Begum. According to the plaintiff, the property belonged to the family of the plaintiff and defendant No. 1 and their other brother Shri S.M. Ahmad who have collectively two third share. The defendant denies that he had obtained any signature of the plaintiff on blank papers and stamp papers and that he had fraudulently got the property dedicated to the trust. It is contention of the defendant that the property is a public trust property and trust has not been joined as party to the suit and therefore, the suit is bad. The suit, according to the plaintiff, is also beyond limitation. The defendant contends that the property was in fact dedicated to the trust by the plaintiff and the defendant and their brother together by oral wakf.
4. The learned judge of the trial court, upon consideration of the evidence found that the plaintiff had failed to prove that the suit property was gifted to him by maternal uncle and that he is the exclusive owner of the suit property. The learned judge also found that the plaintiff had failed to prove that defendant No. 1 had taken any disadvantage of his being lawyer for the plaintiff and that he fraudulently got the property dedicated to the trust. It was found by him that the property belongs to the trust and holding so, he dismissed the suit. Being aggrieved by that, the plaintiff preferred an appeal before the District Judge.
5. The Ad hoc Additional District Judge, who heard the appeal, however found that the plaintiff was the exclusive owner of the suit house. Defendant No. 1 had played fraud on the plaintiff. The plaintiff had never dedicated the suit house to the trust and the plaintiff was entitled to an injunction and declaration. Holding so, he set aside the judgment and decree of the trial court and decreed the suit. Being aggrieved by that, defendant No. 1 has preferred this appeal.
6. The appeal is admitted by this Court on the following substantial question of law.
i) Whether the appellate court was justified in accepting the evidence of the Power of Attorney holder for the plaintiff on the question of alleged fraud when the plaintiff himself failed to enter the witness box to prove the facts which were within his personal knowledge ?
ii) Whether the Civil court had jurisdiction to try the suit instituted by the plaintiff or whether the questions involved in the suit were determined by the authorities under Bombay Public Trust Act ?
iii) Whether the suit was bad for nonjoinder of the Public Trust/Wakf as party defendant ?
7. I have heard the learned Counsel for the appellants as well as the respondents.
8. A few admitted facts may be stated thus -
The plaintiff and defendant No. 1 (both deceased) are the real brothers. Their other brother Shri S.M. Ahmad is also dead. There is a trust known as Masjid Hasart Maaulan Majlis. It is a Public trust. On the date suit was filed, the suit property was already entered in the register of public trust.
9. The plaintiff claims the title to the suit property through his maternal uncle, the same having been gifted to him orally. Defendant No. 1, however, has contended that the suit property belonged to three brothers and their three sisters but was mutated in the name of plaintiff, being eldest brother. We are not much concerned with the question whether the suit property exclusively belonged to the plaintiff or to the plaintiff and his brothers jointly. Second appeal is not admitted on any such question. It is admitted on the ground whether fraud as alleged could be proved by the power of attorney by her evidence or whether the person upon whom the fraud was allegedly played ought to have entered the witness box. In the context, we have to see as to what is the pleading of the plaintiff.
10. The plaintiff has alleged that being brother, he had implicit faith in his brother defendant No. 1. It is alleged that the plaintiff had started legal proceedings against tenants for eviction. It is also alleged that for that purpose defendant No. 1, who is a lawyer, had obtained signatures of plaintiff on blank papers and stamp papers and taking advantage of this, defendant No. 1 got his name mutated as Mutuwalli and allegedly, fraudulently got dedicated the property to the trust. The plaintiff also avers that he demanded from defendant No. 1 the information about the legal proceedings but defendant No. 1 did not give the correct information. The plaintiff alleges that though defendant No. 1 has no interest in the property, he fraudulently transferred the same to the Masjid. These could be said to be the particulars of the fraud as alleged. In fact, all these things as were alleged and on which the contract becomes void ought to be proved primarily by the evidence of the person who was party to such a contract. There is, however, no doubt that these things can also be proved by the circumstantial evidence and/or conduct of the parties. But where a person, who is party to a contract, is alive, he must enter the witness box. The plaintiff in this case does not enter into the witness box on the ground that he is too old and is not well. In fact, if the plaintiff was not well there was no difficulty in examining him on commission. There is no application for appointment of Commissioner nor is there any certificate on record showing that the plaintiff was not at all in a position to enter into the witness box and to speak. PW 1 Hakima Begum merely states on oath that the plaintiff is suffering from paralysis but there is no certificate at all. In the absence of such a certificate, it seems to me that the plaintiff has failed to prove that he was unable even to be examined on commission. In fact, therefore, an adverse inference has to be drawn against the plaintiff that had he entered the witness box, he would not have been able to support his own cause. As said earlier, if the fraud was played on the plaintiff it was for the plaintiff to prove it by his own evidence. If somebody else speaks of it, that would all be hearsay since on that day the plaintiff was very much alive.
11. Shri Dharmadhikari, learned Counsel for the appellants, submits that PW 1 Hakima's evidence as a holder of Power of Attorney should not be accepted particularly when the plaintiff was alive and his incapacity to depose is not proved. He relied on a decision of the Supreme Court reported in : AIR 2005 SC 439 (Janki Vashdeo Bhojwani and Anr. v. Indusind Bank Ltd. and Ors.) The Supreme Court observes as under:
12. In the context of the directions given by this Court, shifting the burden of proving on the appellants that they have a share in the property, it was obligatory on the appellants to have entered the box and discharged the burden by themselves. The question whether the appellants have any independent source of income and have contributed towards the purchase of the property from their own independent income can be only answered by the appellants themselves and not by a mere holder of power of attorney from them. The power of attorney holder does not have the personal knowledge of the matter of the appellants and therefore he can neither depose on his personal knowledge nor can he be cross-examined on those facts which are to the personal knowledge of the principal.
13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to 'act' on behalf of the principal. In our view the word 'acts' employed in Order III, Rules 1 and 2, CPC, confines only in respect of 'acts' done by the power of attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some 'acts' in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
12. It is thus evident that a power of attorney cannot depose for principal in respect of the matter of which principal alone has a knowledge. If, therefore, fraud is played on the principal, the principal must state so and none else. When PW 1 was confronted with the documents, she was unable to tell if it bears signature of the plaintiff. This shows that the witness has no personal knowledge and therefore, she could not give evidence for and on behalf of the plaintiff. The evidence of PW 1 Halima begum, therefore could not at all be relied.
13. The learned judge of the appellate court seems to be swayed by the fact that defendant No. 1 was the lawyer and he was dealing with the court cases. Even if that was or is true, everything could not be looked at with that thing in mind. There are many more important circumstances to suggest that the plaintiff was very well aware since inception about the dedication. Those, circumstances need to be looked into bearing in mind that the plaintiff does not enter into witness box. Exh.72 is the certified photo copy of the application made to the Deputy Charity Commissioner by three brothers i.e. plaintiff, defendant No. 1 and their third brother Syed Moiuddin. This is dated 10/7/1972. It is a typed application. It is signed by all three brothers. The first signature is that of plaintiff, second is that of Moiuddin and third is that of defendant No. 1. All three of them have signed against their respective number. A bare look at this would certainly go to show that the signatures were put on typed application and not on a blank paper. The next application is one submitted to the Municipal Corporation. It is in the name of the plaintiff and signed by all three brothers. This is also typed application for mutation of the name of the Masjid. The contents of the application do not seem to be typed after the signatures were put. Had it been so, there would have been difference in the spacing of the sentences. Exh.72 is the application by which the plaintiff, defendant and their brother informed the Charity Commissioner about the dedication of the property to the trust and entry of the property in the register of the trust. These two documents certainly are enough to my mind to hold that there was a dedication and there was no fraud whatsoever played on the plaintiff. Further, I find that Alima Begum's evidence could not be accepted because the plaintiff was alive and Alima Begum had no personal knowledge about the facts pleaded. The first substantial question of law is accordingly answered.
14. This takes me to consider the next two questions of law. In the instant case, the suit property is indisputably entered into the register of public trust. The learned Counsel for the appellant submits that once the property is entered in the public trust register, the civil court will have no jurisdiction to entertain a suit and decide if it was rightly or wrongly entered. Shri Khare, learned Counsel for the respondents, on the other hand submits that such question can always be decided by civil court when it is alleged that it was entered into the register fraudulently. There cannot be any doubt that when property is not entered in the register but is alleged to be trust property, the civil court does get the jurisdiction to decide whether it was a dedicated property or not. This Court had an occasion to consider this question in a decision reported in 2008(6) All M.R.543 (Shri Hanuman Deosthan and Ors. v. Jaiwant Wasudeo Pullarwar and Ors.). The Court observes as follows:
12. Shri Vyawahare the learned Counsel for the respondents submitted that the learned Additional District Judge found that the suit property is not a trust property. It must be borne in mind that plaintiff gave description of the property as House No. 878 Circle No. 3. Defendants in their written statement do not deny the description of the property in their possession. They do not say that they are not in possession of the property as described in the plaint. They on the other hand give in their Written Statement the numbers of the suit house which came to be changed from time to time. Defendants also have set up a plea of adverse possession of suit house, although that plea has been rejected by the trial Court. They admit that it is a trust property (though as private trust). In fact D.W.1 Vijay admits as follows in his cross-examination. It is necessary to reproduce the admissions here verbatim:
It is true to say that the house No are changed after every four years after revaluation. Ex.56 is included suit house. The suit house is in Circle No. 3. Today the suit house is included in Circle No. 3. I do not know about the change of circle. It is true to say that since 1910 the suit house is owned by Hardas Bairagi.Shri Vyawahare learned Counsel submits that though the defendants may have admitted in evidence and pleadings that they are in possession of the suit house, the suit still cannot be decreed against the defendants. He submits that plaintiff is a trust and is seeking possession as a trust and under such circumstances it must establish that it is a trust property. He contends that the first appellate Court rightly found that the suit property is not the trust property and therefore suit was liable to be dismissed. He invited my attention to Exh.43the trust register copy which shows that only three properties are entered in the trust register. Those are:
1) House No. 374 in Circle No. 2;
2) House No. 55 in Circle No. 3;
3) Math House No. 369.
Shri Vyawahare learned Counsel submits that none of these descriptions matches with the description given in the suit and none of the documents show that house No. 55 in Circle 3 is the suit property. Exh.57 the copy of the assessment register from 1947 shows that house No. 55 in Circle No. 3 is owned by one Ramlal Halwai. There is no doubt that suit house is not described by correct number in the register of public trust at all. Trust is certainly not the owner of the house No. 55 in Circle No. 3 which is owned by Ramlal Halwai, but then it is clear that there are three separate houses which are entered in the property register and there seems to be a misdescription of the suit house. The Court can always find out if the suit property is owned by trust or not. Civil Court, to my mind certainly has a right to decide the question of ownership which must bind by authorities including the Charity Commissioner. In this regard one may refer to Section 26 of the Bombay Public Trust Act. The Section reads thus:
Entries in register to be made or amended in certain cases: [1] Any Court of competent jurisdiction deciding any question relating to any public trust which by or under the provisions of this Act is not expressly or impliedly barred from deciding shall cause copy of such decision to be sent to the Charity Commissioner and the Charity Commissioner shall cause the entries in the register kept under Section 17 to be made or amended in regard to such public trust in accordance with such decision [The entries so made or amended] shall not be altered except in cases where such decision has been varied in appeal or revision by a Court of competent jurisdiction. Subject to such alterations, the [entries made or amended] shall be final and conclusive.
[2] Where the Charity Commissioner decides any question in relation to any public trust or passes any order in relation thereto, he shall also cause the entries in such register to be made or amended in regard to such public trust in accordance with the decision so given or order passed by him; and thereupon, the provisions of subsection (1) shall apply in relation to entries so made or amended as they apply in relation to entries made or amended according to the decision or order of a court.
What this section therefore says is that any question relating to public trust can be decided by any Court competent to decide said question unless such Court's jurisdiction is expressly barred by the Act. Civil Court must as said earlier, be said to be competent to decide the question of ownership of the property. Their is no doubt that Section 21 of the Bombay Public Trust Act says that entries made under Section 17 and 20 shall be final and conclusive but that would be with regard to the property entered in the register. That Section or Section 22A to my mind would not come in the way of the civil Court in deciding the question as to whether any property which is not entered in the register is or is not a trust property. The Full Bench of this Court in a decision reported in Keki Perstonji Jamdar v. Rodabai Khodadad Merwan Irani 1972 Mh LJ 427, held that Bombay Public Trust is not a self sufficient and self contained Code and provides for no remedy to third person whose title would be concluded by decision under Section 19. Thus even a third party has a right to challenge the entry taken under Section 90 of the Bombay Public Trust Act. If this is considered then I find that if third party challenges the ownership of the trust in a suit instituted by a trust against such person the question of ownership of the trust visavis that person could be determined by the civil Court irrespective of the fact that such property may not have been included in the register of trust. The civil court may hold if evidence is available that the trust is the owner of the suit property and may direct eviction of such person.
15. Mr. Khare, in support of his contention had relied upon a decision of the Full Bench of this Court in : AIR 1973 Bombay 130 (Keki Pestonji Jamadar and Anr. v. Khodadad Merwan Irani and Ors.). Their Lordships had formulated three questions and had answered them. Observations are as follows -
6. Going back to Rodabai's suit from which this appeal arises, after her heirs were brought on the record of the suit, the trial Court dismissed the suit holding on a preliminary contention that it had no jurisdiction to decide or deal with the questions raised in the suit by reason of the bar arising under Section 80 of the Act. This decree was reversed by appeal by the learned Assistant Judge, Thana, who remanded the suit for hearing on the other issues. Against that order defendants 1 and 2 have filed this appeal. In view of the certain judgments of this Court and in view of the importance of the questions involved in the appeal, Vimadalal, J., before whom the appeal came for hearing, has referred two questions for the decision of the Full Bench. We have modified those questions to read as follows:
(1) Is the question whether the author of the trust was the lawful owner of the property of which he has created the trust or had otherwise authority to create the particular trust, covered by Section 79 read with Section 80 of the Bombay Public Trusts Act, 1950 ?
(2) Can a person who has once appeared in the proceedings under the Bombay Public Trusts Act and has made his contentions therein on the above question, bring a suit in a Civil court in respect of such a question Or,
(3) Has the Civil Court no jurisdiction to deal with or decide such a question by reason of Section 80 of the Act ?
30. A learned Single Judge of the Gujarat High Court - the late Mr. Justice M.R. Mody - has held in Ishwarlal Nanalal v. Ghanchi Chimanlal. R., ILR (1963) Guj.767 that decisions given under the Bombay Public Trusts Act have the effect of a judgment in rem and that Section 22A of the Act casts an obligation on the Deputy or Assistant Charity Commissioner to hold a further inquiry if the claim of any third party is left out of consideration in a previous inquiry under Section 19. With respect, we are unable to agree with this view. The inadequate procedure prescribed for inquiries under Section 19, the absence of any provision for the issuance of a notice to those whose interests are likely to be affected by a decision rendered in that inquiry and the dominant purpose of the Act that public trusts should be compulsorily registrable so that they can be more effectively regulated and administered show that contests regarding titles of third parties have no place in the scheme of the Act. With respect, we also see no support for the proposition that decision given under Section 19 are judgments in rem. Section 41 of the Evidence Act does not accord that pride of place to such summary decisions.
40. For these reasons, our answer to the first question is in the negative.
41. As regards questions 2 and 3, we are of the opinion that for determining whether the bar under Section 80 of the act arises, it is irrelevant whether the person who wants to raise the particular question was or was not a party to the proceedings under Section 19. The fact that such a person was a party to those proceedings may, perhaps, raise a bar analogous to that of res judicata but we are not concerned with that question and would prefer not to express any opinion thereon. The Civil Court would, however, have the jurisdiction to decide the points mentioned in question No. 1, in the sense that Section 80 cannot operate as a bar to that jurisdiction.
16. The import of this decision is that the Act is not self sufficient and therefore, the jurisdiction of the civil court is not totally barred. It is also observed that even if the person may or may not be party to enquiry in certain cases, the bar may not operate. The decision, to my mind, has no application to the facts of the instant case. There are two reasons. The first is that the property was dedicated to trust under the application and signature filed by the plaintiff himself and second, the plaintiff has failed to prove that such dedication was as a result of fraud. Plaintiff, who signed the application cannot now turn around and say that he never intended to dedicate. The Charity Commissioner had issued public notice, by pasting it at the conspicuous part of the property. The plaintiff never raised an objection from 1972 to 1988. On the other hand, plaintiff even applied for mutation of name of Masjid as owner and confirmed the act of dedication. As observed by Their Lordships of the Bombay High Court, there would be a bar of res judicata. Not only this bar, there would also be an estoppal. Once the plaintiff himself applies informing dedication to the Deputy Charity Commissioner and later confirms it by application to Municipal Council, the plaintiff cannot resile from the said position. This decision in Keki Pestonji Jamadar case now does not seem to be the final word. The Supreme Court in a recent decision reported in : (2005) 10 SCC 760 (Church of North India v. Lavajibhai Ratanjibhai and Ors.) has held as follows:
69. We have noticed hereinbefore that the BPT Act provides for finality and conclusiveness of the order passed by the Charity Commissioner in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2).
70. In view of the decision of this Court in Dhulabhai such finality clause would lead to a conclusion that the civil court's jurisdiction is excluded if there is adequate remedy to do what the civil courts would normally do in a civil suit.
In this case, we are not concerned with a dispute as regards absolute title of the trust property. We are also not concerned with the question as regards creation of any right by the trust in a third party which would be otherwise beyond the jurisdiction of the Charity Commissioner. It is also not a case where the plaintiffs made a complaint that the provisions of the BPT Act were not complied with or the statutory tribunal had not acted in conformity with the fundamental principles of juridical procedure. In fact no order has been passed on the appellant's application for changes in the entries made in the registers maintained under Section 17 of the Act. The BPT Act provides for express exclusion of the jurisdiction of the civil court. In various provisions contained in Chapter IV, a power of inquiry and consequently a power of adjudication as regards the list of movable and immovable trust property, the description and particulars thereof for the purpose of its identification have been conferred. In fact, the trustee of a public trust is enjoined with a statutory duty to make an application for registration wherein all necessary descriptions of movable and immovable property belonging to the trust including their description and particulars for the purpose of identification are required to be furnished. Section 19 provides for an inquiry for registration with a view to ascertaining inter alia the mode of succession to the office of the trust as also whether any property is the property of such trust. It is only when the statutory authority satisfies itself as regards the genuineness of the trust and the properties held by it, is an entry made in the registers and books, etc. maintained in terms of Section 17 of the Act in consonance with the provisions of Section 21 thereof. Such an entry, it will bear repetition to state, is final and conclusive. Changes can be brought about only in terms of Section 22 thereof.
82. The provisions of the Act and the scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question, and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of the law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question.
83. With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at , having regard to the nature of the claim as also the relief sought for, that the civil court has no jurisdiction, Section 26 perforce will have no application whatsoever.
In the case at hand, the property was entered in the trust register in 1972 itself and it was sought to be challenged in 1988. Since the property is entered in the trust register, it is deemed to be trust property. Had it not been included in the trust register, the suit would have been tenable. The substantial question of law merely relates to acceptance of evidence of power of attorney on question of fraud. I have found that it is not acceptable. The result is that, taking of entry of this property in register is not proved to be bad. This Court in another decision reported in 2007 (2) Mh.L.J. 469 (Keshav Narayan Bharti v. State of Mah and Ors.) has observed as follows:
16. Another limb of the prayer Clause (1) in the suit, is a declaration that the suit property is not the property of a public or private trust. For this purpose, it is necessary to refer to Section 79 of the Act of 1950. It reads thus ;
79(1) Any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.
(2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusive.
It is manifest from the scheme of Section 79 that any question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.
Sub-section (2) of Section 79 gives finality and conclusiveness to such decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, unless set aside by the decision of the Court on application or the High Court. Thus, finality is attributed under subsection (2) of Section 79, as noted above. Exclusive jurisdiction, for deciding a question, whether or not a trust exists and such trust is a public trust or particular property of such trust, is within the ambit of Deputy or Assistant Charity Commissioner or the authority under the Act of 1950, as provided under Section 79. Finality is given under subsection (2) of Section 79. The provision laid down under Section 79 is further reinforced specifically by Section 80 of the Act of 1950. It reads thus:
80. Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive.Thus, Section 80, as noted above, bars the jurisdiction of the Civil Court to decide or deal with any question, which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive. In my view, therefore, if the provisions laid down under Section 79 and Section 80 are read conjointly, exclusion of the civil Court regarding any question, as to whether or not a trust exists and such trust is a public trust or particular property is the trust property of such trust, is explicitly made clear. Therefore, the second limb of prayer Clause (1) seeking declaration that the suit property is not a property of public or private trust, is clearly beyond the jurisdiction of the Civil court. Thus, the prayer (1) made by the plaintiff in the plaint is beyond the jurisdiction of the Civil Court.
21. In this view of the matter, in my view, the First Appellate Court has justifiably recorded a finding that the Civil Court has no jurisdiction to entertain the suit.
But then this Court in another decision in Hanuman Deosthan case (supra) has held that the Civil court's jurisdiction could not be barred where the property is not entered in the register. This decision appears to be in tune with the decision of the Supreme Court in Church of North India case (refer to para No. 82 of the said judgment).
17. Mr. Khare, learned Counsel for the respondent, relies on the decision of this Court in : 2005(2) Mh.L.J. 95 (Ramnarayan Manilal Sahu through L.Rs. Smt. Kamal Wd/o Ramanarayan Sahu and Ors. v. State of Mah.), this decision is rendered relying on the decision of the Full Bench in Keki Pestonji Jamadar's case. We have seen that the Supreme Court does not say that the jurisdiction of the civil court is not totally barred. It seems that if the property did not validly vest in the trust and trust itself is not valid the Civil Court will have jurisdiction. It is, therefore, clear that there could be no straight jacket formula. It would depend upon facts of each case if suit would be maintainable or not. In the case at hand, since the property is already included in trust register long back and when the plaintiff himself was one of the applicants who applied for entry of such property in trust register, the only remedy that was available to the plaintiff was one by way of revision or appeal against the Deputy Charity Commissioner's decision. He could not file suit. The Supreme Court in Church of North India observes as under:
83. With a view to determine the question as regards exclusion of jurisdiction of the civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the relief sought for, that the civil court has no jurisdiction, Section 26 perforce will have no application whatsoever.
Thus, even complicated questions have also to be decided by the Charity Commissioner and that is no ground to oust the jurisdiction of the Charity Commissioner.
18. This takes me to consider if the suit was bad for nonjonder of trust in the suit. There is a public trust and suit property is entered in the register of trust. It, therefore, prima facie vests in the trust. Therefore, if any question with regard to the property which is entered in the name of the trust is to be decided in any suit, the presence of such trust would be absolutely necessary. Shri Khare, learned Counsel for the respondent, submits that it is the choice of the plaintiff whom he should make party and suit cannot be held to be not maintainable on that count. He relied on the decision reported in 2001(3) Mh.L.J. 288 (Adam A. Sorathia and Anr. v. Municipal Corporation of Greater Bombay and Anr. and : 2000(3) Mh.L.J. 550 (Herbertosons Ltd. v. Kishore Rajaram Chhabria and Ors.). Both decisions do not say that the plaintiff has a choice not to join party which is a necessary party. When a suit cannot be finally and effectually adjudicated in the absence of that party, that party has to be joined as party to the suit. In Herbertsons Ltd. Case, the court says that in the teeth of opposition of the plaintiff, a necessary party has to be added as a party. Therefore, for final adjudication, the presence of such party would be mandatory. Here, the question of title to the party cannot be adjudicated without the trust being party. The trust having not been joined, the suit was not maintainable. All the substantial questions of law are answered accordingly.
19. The appeal, therefore, must succeed.
The appeal is allowed.
The Judgment and decree passed by the appellate court is set aside and that of the trial court restored.
No order as to costs.