Bombay High Court
Kamal S/O Madanlal Maheshwari vs Dr. Govind S/O Poonamchand Padiya ... on 17 January, 2018
Bench: Manish Pitale
1 FA992-17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
First Appeal No.992 of 2017
...
Kamal s/o Madanlal Maheshwari,
Aed about 47 years,
Occ: Business and Agriculturist,
R/o Near Rajput Dharmashala,
Telhare, Tq. Telhara, Dist. Akola. .. APPELLANT
(Ori. Applicant on RA)
.. Versus ..
1. Dr. Govind s/o Poonamchand Padiya,
Aged- Adult, Occ: Medical
Practitioner, R/o S.A. College Road,
Civil Lines, Akola, Tq. And Distt.
Akola.
2. Vikram s/o Poonamchand Padiya,
Aged Adult, Occ: Nil, R/o Ram
Mandir, Telhara, Tq. Telhara,
Distt. Akola. .. RESPONDENTS
(Ori. Non-applicants on
RA)
Mr. C.A. Joshi, Advocate for Appellant.
Mr. S.C. Mehadia, Advocate for Respondents
....
CORAM : Manish Pitale, J.
DATED : January 17, 2018.
ORAL JUDGMENT
1. Heard.
2 FA992-17.odt
2. Admit. Heard finally with the consent of the learned
counsel appearing for the parties.
3. By this appeal, the appellant has challenged the
judgment and order dated 11.08.2016 passed by the Court of
the District Judge, Akola in an application filed under Section 72
of the Bombay Public Trusts Act, 1950 by the appellant. By the
said judgment and order, the District Court has rejected the
application and confirmed the orders passed by the authorities
under the aforesaid Act.
4. The appellant as reporting trustee of a trust called
Shri Matoshri Krida Yuvak Kalyan Vyayam Wa Shikshan
Prasarak Mandal, Telhara, submitted a change report under
Section 22 of the said Act, claiming that Savitribai Padiya had
executed a gift deed dated 27.06.2002 in favour of the trust in
respect of the immovable property situated at village
Gadegaon , Survey No.59. This change report was resisted by
the objectors i.e. the respondents herein, who pointed out that
Savitribai Padiya i.e. their mother had no authority to execute
the aforesaid gift deed dated 27.06.2002 as property in
question was an ancestral property. It was further pointed out
that will deed dated 25.06.2001 executed by their father did
not specifically mention the aforesaid suit property to have
been bequeathed to their mother Savitribai Padiya.
3 FA992-17.odt
5. On this basis, Assistant Charity Commissioner
considered contentions of all the parties in the said change
report and held that the limited question that arose for
determination was whether the particular property which was
alleged by the Trust as gifted to it was the property of the Trust
and whether such acquisition of property in terms of the
change was legal and valid. The said Authority recorded that
the will was admitted by all the parties. It further recorded that
there there was nothing in the will to show that the property in
question was bequeathed by the father of the
respondents/objectors in favour of Savitribai Padiya. On this
basis, the Assistant Charity Commissioner rejected the change
report.
6. This order was challenged by the appellant before the
Joint Charity Commissioner, Amravati Region, who passed
judgment and order dated 29.09.2012 dismissing the appeal of
the appellant and confirming the order of the Assistant Charity
Commissioner. As the appellant had pointed out that Savitribai
Padiya had filed a suit in the Civil Court for cancellation of the
gift deed, the Joint Charity Commissioner in his judgment and
order, while dismissing the appeal, observed as follows:-
"Even, otherwise, appellant who was reporting
trustee before the trial Court has admitted in
cross-examination that Smt. Savitribai has
4 FA992-17.odt
filed suit in the Civil Court for cancellation of
gift deed. Thus, the matter of cancellation of
gift deed is pending in Civil Court. Its result
will have binding effect to decide the
controversy finally. Appropriate entry will be
taken in P.T. Register as and when the
judgment of Civil Court is so reported, under
Section 26 of the Bombay Public Trusts Act.
At present, on the basis of documents
submitted by appellant, it cannot be said that
property is validly transferred in the name of
the trust. Therefore, finding given by
Assistant Charity Commissioner is correct."
7. Aggrieved by the said judgment and order, the
appellant filed an application under Section 72 of the aforesaid
Act before the Court of District Judge, Akola. By the impugned
judgment and order, the District Court had dismissed the said
application, confirming the orders passed by the authorities
below. I have perused the impugned judgment and order.
8. Mr. C.A. Joshi, learned counsel appearing for the
appellant submits that the impugned judgment and order
confirming the orders of the authorities below is erroneous
because the validity of the gift deed is yet to be decided by the
Civil Court and further that at least to the extent of share of
said Savitribai Padiya, the trust could be entitled to the
5 FA992-17.odt
property. On the other hand Mr. S.C. Mehadia, learned counsel
appearing on behalf of the respondents submits that there is
no error committed by the Court of appeal in confirming the
orders of the authorities under the aforesaid Act.
9. Having considered the submissions of the parties, I
find that there is no error committed by the District Court in
passing the impugned judgment and order, particularly when
the Joint Charity Commissioner while dismissing the appeal has
specifically observed that the matter of cancellation of gift
deed is pending before the Civil Court and that the result of
such proceedings will have a binding effect to decide the
controversy finally. Therefore, the interest of the appellant is
adequately taken care of, including the submissions made in
respect of the entitlement of the trust towards the alleged
share of Savitribai Padiya in the property in question.
Therefore, since I do not find any error committed by the
Courts below, the appeal is dismissed with no order as to costs.
(Manish Pitale, J. )
...
halwai/p.s.
