Ram Narsu Gore And Ors vs Sudarshan Gir Ganesh Gir Died Th ...
2017 Latest Caselaw 6393 Bom

                                      1               FA NO.3032 OF 2016


         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                   FIRST APPEAL NO.3032 OF 2016

  1)       Ram s/o Narsu Gore,
           Age 66 years, Occu. Agril.,
           R/o Wasangaon,
           Tq. and District Latur.

  2)       Tulshiram s/o Sambaji Thormote (Patil),
           Age : 76 years, occu. Agril.,
           R/o : as above.

  3)       Sukhadev s/o Keshavrao Patil,
           Age 46 years, occu. Agril.,
           R/o : as above.

  4)       Shirkrishna s/o Mahadev Patil,
           Age : 46 years, occu. Agril.,
           R/o : as above.

  5)       Bhanaudas s/o Dadarao Patil,
           Age : 71 years, Occ. Agril.,
           R/o : as above.
                                              ...APPELLANTS
                               ( Orig. applicants before Asstt.
                                 Charity Commissioner )

                   VERSUS

  1)       Sudarshan Gir s/o Ganesh Gir,
           (died) Through his L.Rs.

  2)       Bhagyashri w/o Devendra Puri,
           Age : Major, Occ. Household,
           R/o : Kasarkheda,
           Tq. and District Latur,

  3)       Kusum w/o Sudarshan Gir,
           Age 74 years, Occu. Household,
           R/o : as above.



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  4)       Ashok s/o Sudarshan Gir,
           Age 57 years, Occu. Service,
           R/o : as above.

  5)       Anil s/o Sudarshan Gir,
           ( died ) Through his L.Rs.

  6)       Shobha w/o Anil Gir,
           Age 36 years, Occu. Household,
           R/o : as above.

  7)       Ashwini d/o Anil Gir,
           Age 17 years, Occu. Nil (Minor),
           R/o : as above.

  8)       Gauri d/o Anil Gir,
           Age : 15 years, occu. Nil (Minor),
           R/o : as above.

  9)       Megha d/o Anil Gir,
           Age 13 years, Occu. Nil (Minor),
           R/o : as above.

  10)      Dhiraj s/o Anil Gir,
           Age 09 years, Occu. Nil (Minor),
           R/o : as above.

           (Nos. 7 to 10 are minors, U/G. of their natural
            mother Shoba w/o Anil Gir, Respondent no. 6, Age
            36 years, Occu. Household, R/o : Kasarkheda, Tq.
            and Dist. Latur).

  11)      Sunil s/o Sudarshan Gir ,
           Age 29 years, Occu. Agril.,
           R/o : Kasarkheda,
           Tq. and District Latur.

  12)      Dattu Gir s/o Ganesh Gir,
           (died ) Through his L.Rs.




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                                    3                FA NO.3032 OF 2016


  13)      Prabhavati w/o Dattu Gir,
           Age : 71 years, Occu. Household,
           R/o : as above.

  14)      Dilip s/o Dattu Gir,
           Age : 43 years, occu. Agril.,
           R/o : as above.

  15)      Damodhar s/o Dadarao Patil,
           Age 74 years, Occu. Agril.,
           R/o : Wasangaon,
           Tq. and District Latur.

  16)      Bhujang s/o Narayanrao Patil,
           Age Major, Occu. Agril.,
           R/o : as above.

  17)      Assistant Charity Commissioner
           at Latur,

  18)      Joint Charity Commissioner
           at Latur.
                                     ....RESPONDENTS
                                ( Orig. opponents before
                           Asstt. Charity Commissioner)

                              ...
  Shri P.D.Bachate, Advocate, for appellant.
  Shri P.R.Patil, Advocate, for respondent nos. 2, 13 and 14.
  Shri N.P.Patil Jamalpurkar, Advocate, for respondent nos.
  3, 4 and 6.
  Shri N.D.Kendre, Advocate, h/f Shri V.V.Tamke, Advocate,
  for respondent nos. 11 and 15.

                                 ...
                               CORAM: P.R. BORA, J.

                                 ***
           Date of reserving the judgment:21/06/2017
           Date of pronouncing the judgment:21/08/2017
                                 ***




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                                     4               FA NO.3032 OF 2016

  JUDGMENT:

1. The common judgment and order dated 13th of

September, 2010, passed by the District Judge, Latur, in

Civil Miscellaneous Application (Trust) No.100/2009 and

118/2009, is challenged in the present appeal. The order

passed by the Joint Charity Commissioner, Latur Region,

Latur, in Appeal No.4/2005, decided on 6th of April, 2009,

was challenged before the District Court vide the aforesaid

two applications filed under Section 72 of the Bombay

Public Trusts Act, 1950; now, the Maharashtra Public

Trusts Act ( hereinafter referred to as `the Act').

2. The facts which have given rise for filing the

present appeal in brief are thus:

On 3rd December, 1981, Ram Narsu Gore, appellant

no.1 in the present appeal, filed an application seeking

registration of the trust, by name, Shri Ramgir Maharaj

Math Sansthan, Wasangaon, taluka and district Latur.

He claimed himself to be the president of the said trust

and also mentioned in the said application names of other

ten persons, stating them to be the trustees of the said

5 FA NO.3032 OF 2016

trust. It was contended in the said application that the

agricultural land survey No.10/1 admeasuring 11 acres 30

gunthas and the house bearing Gram Panchayat House

No.232; both situate at village Wasangaon, were

belonging to the trust and hence prayer was made to

declare the said properties to be the trust properties and

to take entry of the said properties on Schedule I.

3. The said application was resisted by the present

respondents. The learned Assistant Charity Commissioner

vide order passed on 30th of March, 1984, allowed the

application and ordered that Shri Ramgir Maharaj

Sansthan, Wasangaon, be registered as public trust.

The said order was challenged by one Damodar Dadarao

Patil before the Joint Charity Commissioner at Aurangabad

vide Appeal No.83/1984. The learned Joint Charity

Commissioner dismissed the said appeal vide judgment

and order passed on 31st of August, 1989. The order

passed by the learned Joint Charity Commissioner was

questioned before the District Court at Latur under Section

72(1) of the Bombay Public Trusts Act. The learned

District Judge, vide judgment and order passed on 20th of

6 FA NO.3032 OF 2016

June, 2000, set aside the order passed by the Assistant

Charity Commissioner in Enquiry Application No.361/1982

as well as the order passed by the Joint Charity

Commissioner in Appeal No.83/1984 and remitted the

matter back to the Assistant Charity Commissioner to

decide it afresh by giving due opportunity to the parties.

Accordingly, the learned Assistant Charity Commissioner at

Latur conducted a fresh enquiry under Section 19 of the

Trust Act and vide judgment and order passed on 28th of

December, 2004, allowed the said application and directed

registration of the public trust, namely, Shri Ramgir

Maharaj Math Sansthan, Wasangaon, Tq. and Dist.Latur

and to take necessary entries in the public register kept

under Section 17 of the Trust Act. The respondents

therein filed an appeal bearing appeal No.4/2005 against

the said order before the Joint Charity Commissioner at

Latur. Vide the judgment and order passed on 6th of

April, 2009, the learned Joint Charity Commissioner

allowed the appeal and thereby set aside the order dated

28.12.2004 passed by the Assistant Charity Commissioner,

Latur. The order passed by the Joint Charity

Commissioner, Latur, was excepted before the District

7 FA NO.3032 OF 2016

Court at Latur vide Miscellaneous Civil Application

Nos.100/2009 and 118/2009. As noted hereinabove,

the learned District Judge dismissed both the applications

and confirmed the order passed by the Joint Charity

Commissioner at Latur in Appeal No.4/2005. Aggrieved

thereby, the appellants have preferred the present appeal.

Initially it was treated as Second Appeal and was

numbered as Second Appeal No.781/2010. Subsequently,

in view of the Full Bench judgment of this Court, the said

Second Appeal was converted into First Appeal and was

numbered as F.A.No.3032/2016.

4. The material on record reveals that there is a

Math in the name of Shri Ramgir Maharaj Math Sansthan

at Wasangaon, taluka and district Latur. It was not

registered under the provisions of Hyderabad Endowments

Regulations or under the provisions of the Bombay Public

Trusts Act. The said Math was possessing some

agricultural land as well as a residential house at

Wasangaon. It was the contention of the original

applicant Ram Narsu Gore that the said Math was liable to

be registered as the public trust and the properties

8 FA NO.3032 OF 2016

belonging to the said Math were liable to be declared as

the trust properties. He, therefore, filed an application

seeking registration of the said Math as a public trust

under the provisions of the Bombay Public Trusts Act and

also prayed for declaring the properties belonging to the

said Math as the properties of the public trust. The said

application was opposed by the present respondents on

various grounds. It was their contention that the Nizam

Government had granted Munthkhab to perform the Pooja

of Khandgir Maharaj Samadhi in respect of the agricultural

land survey No.10. It was also the contention of the

respondents that it was a private property of the Gosavi

community and it was used as residential place as well as

burial ground by Gosavi persons. The aforesaid

contentions though were not accepted by the Assistant

Charity Commissioner, the learned Joint Charity

Commissioner upheld the said contentions and set aside

the order passed by the Assistant Charity Commissioner to

register the said Math as a public trust under the

provisions of the Bombay Public Trusts Act and to take the

entries of the properties belonging to the said Math to be

the trust properties in Schedule I of the Public Trusts

9 FA NO.3032 OF 2016

Register. As noted hereinabove, the learned District

Judge has confirmed the order passed by the learned Joint

Charity Commissioner.

5. Shri Bachate, the learned Counsel for the

appellant, assailed the common judgment and order

passed by the learned District Judge as well as the order

passed by the Joint Charity Commissioner in Appeal No.

4/2005 on various grounds. Learned Counsel submitted

that the courts below have manifestly erred in holding that

the property in question was personal property of the

opponents. Learned Counsel further submitted that the

Courts below have wrongly interpreted the relevant

provisions under the Bombay Public Trusts Act. Learned

Counsel submitted that the learned District Judge as well

as the Joint Charity Commissioner both have failed in

appreciating that the registration of the trust and to

declare any property as trust property are two different

issues and are required to be dealt with independently.

Learned Counsel submitted that sufficient evidence has

been brought on record by the present appellants to

establish that the subject Math requires to be registered as

10 FA NO.3032 OF 2016

the Public trust. Learned Counsel further submitted that

the Math was developed by the villagers of Wasangaon

and not only by people of Gosavi community. Learned

Counsel further submitted that the appellant had also

established that religious activities are being carried out by

the villagers of Wasangaon in the subject Math and the

religious instructions are also imparted through the

programmes conducted in the said Math. Learned

Counsel, placing reliance on the judgment of the

Honourable Apex Court in the case of Bala Shankar Maha

Shankar Bhattjee and others vs. Charity Commissioner,

Gujarat State ( AIR 1995 SC 167) submitted that the long

use of the Math by the villagers as of right for

worshipping, is a relevant factor leading to a presumption

that the Math is a public temple. Learned Counsel, then

referred to and relied upon the judgment of the

Honourable Apex Court in the case of Mahant Shri Srinivas

Ramanuj Das vs. Surjanarayan Das and another ( AIR

1967 SC 256) to urge that an institution which comes

within the definition of Math, ipso facto, comes within the

description Hindu Public Trusts and endowments and,

therefore, becomes subject to the provisions of the Trust

11 FA NO.3032 OF 2016

Act. Learned Counsel, therefore, prayed for setting

aside the judgment and order passed by the learned

District Judge as well as by the learned Joint Charity

Commissioner.

6. The respondents opposed the submissions

made on behalf of the appellant. Shri P.R.Patil, learned

Counsel appearing for the respondent nos. 2, 13 and 14,

and Shri N.P.Patil Jamalpurkar, learned Counsel appearing

for respondent nos. 3, 4, and 6 supported the impugned

judgment. Shri P.R.Patil, learned Counsel, submitted

that every tomb cannot be recognized as religious in

nature. In order to support his contention, learned

Counsel relied upon the judgment of the Madras High

Court in the case of the Commissioner, Hindu Religious

and Charitable Endowments Department, Madras and

others Vs. Ramling Reddiar in A.S.No.512/2002 decided on

24th of June, 2009. Learned Counsel also cited the

judgment of the Madras High Court in the case of

Ramanasramam, by its secretary G. Sambasiva Rao and

others vs. The Commissioner of Hindu Religious and

Charitable Endowments, Madras ( AIR 1961 Madras 265)

12 FA NO.3032 OF 2016

to submit that the dedication of a property for worship at

Tomb is not sanctioned by Shastriac practices and is not

valid amongst the Hindus. Learned Counsel further

submitted that nothing is brought on record by the original

applicant that the Service Inam of the subject land was

made for benefit of any sect of the society or that some

obligation was annexed to the ownership of the Inam land

held by the disciples of Govindgir Maharaj. According to

the learned Counsel, in such circumstances, the question

whether the Math is a public trust or private trust does not

arise. In order to support his argument, learned Counsel

relied upon the judgment of the Honourable Apex Court in

the case of Ram Bharose Sharma vs. Mahant Ram

Swaroop and Others ( (2001) 9 SCC 477).

7. Shri N.P.Patil Jamalpurkar, learned Counsel

appearing for respondent nos. 3, 4 and 6 submitted that

merely because on certain occasions the general public

visits the subject Math, the same cannot be held to be a

public trust. To buttress his contention, learned Counsel

relied upon the judgment of the Honourable Apex Court in

the case of Haribhanu Maharaj of Baroda, vs. Charity

13 FA NO.3032 OF 2016

Commissioner, Ahmedabad ( AIR 1986 SC 2139).

8. I have carefully considered the submissions

made on behalf of the learned Counsel appearing for the

respective parties. I have perused the impugned

judgment and the other material placed on record.

9. The material on record reveals that the Nizam

Government had granted Munthkhab in respect of survey

No.10 situate at village Wasangaon to perform the Pooja

of Khandgir Maharaj Samadhi. The grant was not in the

name of any deity but was in the name of individual

person. The appellant or the persons interested in getting

the subject Math registered as the public trust have not

brought on record any material to show that the grant was

in the name of a deity. As has been observed by the

learned Joint Charity Commissioner in his judgment, the

appellant Ram Narsu Gore has admitted in his cross

examination that the subject Math was established prior to

100 years and it was belonging to Khandgir Maharaj and

then the same was succeeded by his disciples. It has also

come on record through the cross examination of said Ram

14 FA NO.3032 OF 2016

Gore that the persons belonging to Gosavi community

used to reside in the Math. It has also come on record

that dead persons from Gosavi community were used to

be buried near the residential place and there are 7/8

Samadhis as such of the persons from the Gosavi

community. Ram Narsu Gore has further admitted in his

cross examination that idols of God are not installed in

the Math and the idols of Hindu gods are not worshipped in

the Math. Ram Narsu Gore further pleaded ignorance as

to who constructed the Math, whether the persons from

Gosavi community or someone else.

10. From the facts which have come on record

through the cross examination of Ram Narsu Gore, the

learned Joint Charity Commissioner has rightly drawn an

inference that the subject Math is the private property of

the Gosavi community and it was not open for the public

at large. The learned Joint Charity Commissioner has

further observed that in the cross examination of Shri

Ashok Gir, examined on behalf of the original objectors,

nothing was brought on record to show that the subject

Math was constructed by the villagers by collecting funds.

15 FA NO.3032 OF 2016

Even in the cross examination of Damodar Bokade ( DW

2), no such facts were brought on record that the Math

was constructed by the villagers of Wasangaon and that it

was used by the villagers for worship as of right. On the

contrary, as has come on record through cross

examination of Damodar Bokade (DW 2) at occasions,

villagers were allowed to perform Bhajan, Pujan and

Bhandara in the Math. However, as has been held by the

Apex Court in the case of Haribhanu Maharaj of Baroda,

cited supra, even if on specified occasions, the owners of

the Math had permitted the members of the public to visit

the Math and worship, it would not mean that the Math is

a public trust. The learned Joint Charity Commissioner

has, therefore, recorded a logical finding that the original

applicant has failed in bringing on record sufficient

evidence to show that the villagers of Wasangaon or the

public at large used the subject Math for worship as of

right.

11. More importantly, as has been held by the

learned Joint Charity Commissioner, the original applicants

have not brought on record any evidence to show that the

16 FA NO.3032 OF 2016

subject Math was established for promotion of Hindu

religion or that the religious instructions were imparted

from the said Math or the persons In Charge of the said

Math were rendering spiritual services to the public at

large.

12. Section 2(13) of the Act defines Public Trust.

The definition reads thus:

"2(13) '' public trust'' means 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 (XXI of 1860)."

13. Section 2(9) of the Act defines Math as

under:

"2(9) ''math'' means an institution for the promotion of the Hindu religion presided over by a person whose duty it is to engage himself in imparting religious instructions or rendering spiritual service to a body of disciples or who exercises or claims to exercise headship over

17 FA NO.3032 OF 2016

such a body and includes places or religious worship or instruction which are appurtenant to the institution."

14. As stated hereinabove, nothing has been

brought on record to show that the person who was

presiding over the subject Math was involved in promotion

of Hindu religion and had engaged himself in imparting

religious instructions by rendering spiritual services to a

body of disciples or he exercised or claimed to exercise

headship over such body. In absence of any such

evidence, merely because the nomenclature is Ramgir

Maharaj Math Sansthan, Wasangaon, it cannot be, in fact,

held to be a Math as defined under Section 2(9) of the Act.

  15.                          From   the   material    on      record        it    is

  discernible          that the Math was and is being used as the

property by the people of Gosavi community. It is used as

residential place as well as burial ground by the people of

Gosavi community. I, therefore, do not see any infirmity

in the finding recorded by the learned Joint Charity

Commissioner which has been confirmed by the learned

District Judge that the original applicant has utterly failed

18 FA NO.3032 OF 2016

in proving that the subject Math is a public trust.

16. In so far as the properties are concerned, I

deem it appropriate to reproduce hereinbelow the

discussion made by the learned Joint Charity

Commissioner in paragraph no.17 of his judgment which

reads thus:

"17) My attention was drawn by learned advocate for both the parties towards 'muntkhab' of survey no.10. Both parties are claiming right over the landed property on the basis of this 'muntkhab'. The Marathi translation of 'muntkhab' (Exh.32/8) in appeal is made available to me. This 'muntkhab' shows that in the year 1303 hijari, 15 'bighe' land was given to Govindgir Chela Ganeshgir as 'service inam'. The condition of this 'service inam' was to serve the 'samadhi'. In other words, this 'service inam' was given to Govindgir Chela Ganeshgir for rendering service to 'samadhi'. This 'muntkhab' clearly shows that 'inam' was given to Govindgir Chela Ganeshgir and not to the deity. The 'service inam' given to Govindgir Chela Ganeshgir will be personal property of Govindgir Chela Ganeshgir and said property can not become trust property. Under Sec. 2(c) of Hyderabad Atiyat Inquiries Act, 1952,''Muntkhabs means documents issued by competent authorities as a result of inam''. Therefore, the above said 'muntkhab' will be the basic document under which right in the landed property was given to Govindgir Chela Ganeshgir. By no stretch of imagination, it can be held that 15 'bighe' land given to Govindgir Chela Ganeshgir as 'service inam' is trust

19 FA NO.3032 OF 2016

property. My attention was drawn towards the series of revenue litigation decided in between the parties. However, the litigation regarding entries in revenue record or entries in mutation register is not sufficient to create or extinguish title in the immovable property. Because for some period name of 'Shri Ramgir Math' is recorded in revenue record, on the basis of such stray entry inference can not be drawn that the above said landed property is the trust property. On the other hand, on the basis of 'muntkhab', which is the basic document, I have no hesitation to hold that the property shown by applicant as trust property does not belong to the trust."

No such material has been brought on record in the appeal

also so as to take contrary view than recorded as above by

the learned Joint Charity Commissioner.

17. After having considered the entire material on

record, it does not appear to me that the learned Joint

Charity Commissioner has committed any error in setting

aside the order passed by the Assistant Charity

Commissioner and, consequently, in rejecting the

application for registration of Shri Ramgir Maharaj

Sansthan, Wasangaon, taluka and district Latur as a public

trust. The learned District Judge has concurred with the

finding recorded by the learned Joint Charity

20 FA NO.3032 OF 2016

Commissioner. The facts which have come on record, if

scrutinized in the background of the provisions under the

Trusts Act, and more particularly, in the context of the

definitions of the "public trust" , "Temple" and the "Math",

it is difficult to agree with the submissions made on behalf

of the appellant that the subject Math is liable to be

registered as a public trust and further that the properties

belonging to the said trust are liable to be declared as

trust properties.

18. I reiterate that since nothing has come on

record to show that Ramgir Maharaj Math Sansthan,

Wasangaon, is an institution for promotion of the Hindu

religion presided over by a person whose duty is to engage

himself in imparting religious education or rendering

spiritual services to a body of disciples or who exercises or

claims headship over such a body and includes places or

religious worship or instructions which are appurtenant to

the institution. Merely because the nomenclature is

`Math Sansthan', the Ramgir Maharaj Math Sansthan

cannot be held to be a Math as defined under Section 2(9)

of the Maharashtra Public Trusts Act. Further, since

21 FA NO.3032 OF 2016

admittedly, there is no idol installed in the subject Math,

the same cannot be held to be a temple as defined under

Section 2(17) of the Trusts Act. Further, nothing has

come on record to show that the subject Math is being

used by the public at large for religious worship as of right.

In the above circumstances, in no case, the Ramgir

Maharaj Math Sansthan can be held to be a public trust.

There appears no substance in the appeal filed by the

appellant. Hence, the following order:

ORDER

1. The First Appeal is dismissed. No order as to

the costs. Civil Applications, if any, stand disposed of.

(P.R.BORA) JUDGE ...

AGP/3032-16fa