Supreme Court of India
CHURCH OF NORTH OF INDIAversusLAVAJIBHAI RATANJIBHAI AND ORS.
- Citation
- 2005 INSC 248
- Decided
- 3 May 2005
- Disposal
- Dismissed
- Bench
- B P SINGH
Holding
The civil court lacks jurisdiction because the dispute concerns the management of a religious public trust, which is exclusively within the jurisdiction of the Charity Commissioner under the Bombay Public Trusts Act, 1950, and Section 80 bars the suit.
Summary
The Church of North India (CNI) sought a declaration that the earlier Brethren Church had ceased to exist, that CNI was its legal successor with rights over its properties, and a perpetual injunction restraining dissenting members from obstructing its functioning. The plaintiffs filed the suit in a civil court before CNI was registered as a public trust. The respondents argued that the dispute concerned the management of a religious public trust, which falls exclusively within the jurisdiction of the Charity Commissioner under the Bombay Public Trusts Act, 1950 (BPT Act), and that Section 80 of the Act bars civil courts from entertaining such matters. The Supreme Court examined whether the society and the trust were distinct entities, the applicability of the Societies Registration Act, and the comprehensive scheme of the BPT Act, concluding that the suit pertained to a public trust and therefore civil court jurisdiction was ousted. Consequently, the suit was held non‑maintainable. The appeal was dismissed.
Issues considered
- The suit seeks declaration of dissolution, succession, and injunction – does it fall within the exclusive jurisdiction of the Charity Commissioner under the BPT Act, invoking Section 80?
- Whether the Brethren Church, registered as both a society and a public trust, constitutes a single entity such that the dispute is about a religious trust, not a society.
- Whether reliefs claimed (declaration, succession, perpetual injunction) can be granted by a civil court or are barred by Sections 31, 50, 51, 79, 80 of the BPT Act.
- Whether the provisions of the Societies Registration Act, 1860 (Section 13) govern the dissolution and property adjustment, or are superseded by the BPT Act.
- Whether any question not expressly barred falls within civil court jurisdiction under Section 26 of the BPT Act.
Legislation cited
- Bombay Public Trusts Act, 1950s. 17, s. 19, s. 21, s. 2(13), s. 22, s. 26, s. 31, s. 36, s. 41, s. 51, s. 79, s. 80
- Code of Civil Procedure, 1908s. 9, s. Order 7 Rule 11
- Societies Registration Act, 1860s. 13
Subjects
public trustBombay Public Trusts ActSection 80jurisdictionCharity Commissionerreligious trustsocietydissolutionsuccessioninjunction
Judgment
CHURCH OF NORTH OF INDIA A
v.
LAV AJIBHAI RATANJIBHAI AND ORS.
MAY 3, 2005
[B.P. SINGH AND S.B. SINHA, JJ.] B
Public Trusts :
Bombay Public Trusts Act, 1950-Sections80, 2(13), 17, 19, 21, 22, 26,
C
--- 36, 41, 51 & 79-Bar ofjurisdiction of Civil Court under S.80--Extent of-
'Brethren Church' registered as society under the Societies Registration Act
as also as public trust under the Bombay Public Trusts Act-Consequent
merger of churches in name of Appellant-Civil suit filed a) for declaration
that the 'Brethren Church' had ceased to exist and Appellant was its legal
successor with rights over its property and b) for injunction against obstruction D
in functioning of Appellant-Maintainability of-Held, not maintainable-
Averments made in the plaint indicate that the dispute was in relation to
management of the churches as a religious trust and not as a society-Control
and management of the religious trusts vests in the Charity Commissioner
·appointed under the BPT Act-BPT Act is a complete code in itself-Civil
Court will have no jurisdiction in relation to a matter where the statutory E
authorities have the requisite jurisdiction-Societies Registration Act, 1860--
Section 13-Code of Civil Procedure, 1908-Section 9.
The 'Brethren Church' was established for the propagation of the
protestant faith of Christian religion. It was registered as a religious society F
under the Societies Registration Act, 1860 in 1944 and also as a public
trust under the Bombay Public Trusts Act, 1950 (BPT Act) after the same
came into force. The 'Brethren Church' was allegedly dissolved and a
unified Church by the name of "The Church of Northern India" (CNI)
i.e. Appellant was formed. However the dissolution of the 'Brethern
Church' was disputed and the functioning of the Appellant obstructed. G
Consequently, a civil suit was filed praying a) that it be declared that the
'Brethren Church' had ceased to exist; b) that it be declared that Appellant
is the legal continuation and successor of the said 'Brethren Church'
together with the right, title, claim, interest in or over its properties and
1037 H
1038 SUPREME COURT REPORTS [2005] 3 S.C.R. ....
A the constitution, decisions and resolutions of the Appellant, its Synod and
Gujarat Diocesan Council are binding on all the Pastorates on Gujarat
which were functioning as local Churches or congregations under the
'Brethren Church' and c) that the defendants and their associates be
restrained by a perpetual injunction from acting in any manner contrary
B to the constitution, decisions and resolutions of the Appellant, its Synod
and Gujarat Diocesan.Council and from obstructing in any manner the
plaintiffs and other members/ office bearers of these pastorates under the
Appellant in acting in accordance with the said constitution, decisions and
res~lutions and in their use, enjoyment and possession of the Churches
and their properties.
c The question which arose for consideration in the present appeal is
whether the suit involved questions within the exclusive domain of the
Charity Commissioner appointed under the BPT Act and the jurisdiction
of the Civil Court was barred in terms of Section 80 of the BPT Act.
Dismissing the appeal, the Court
D
HELD : 1. The question as regard ouster of a jurisdiction of a Civil
Court must be construed having regard to the Scheme of the Act as also
the object and purport it seeks to achieve. Further, a plea of bar to
jurisdiction of a Civil Court must be considered having regard to the
E conte~t,ions raised in the .,1aint. For the said purpose, averments disclosing
cause'·of action and the reliefs sought for therein must be considered in
their entirety. The Court may not be justified in determining the question,
one way or the other, only having regard to the reliefs claimed de'hors
the factual averments made in the plaint. When the plaint read as a whole
· d~ not disclose material facts giving rise to a cause of action which can
F be entertained hv a civil court, it may be rejected in terms of Order 7,
Rule 11 of the CPC. The same, however, would not mean that in a given J
case if the court has the jurisdiction to determine a part of the relief I--
claimed, it will not confine itself thereto and reject the plaint in its entirety.
(1059-C, D, E; 1061-A-BI
G Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr., (1968)
3 SCR 662, Rajasthan Siate Road Transport Corporation and Anr. v. Krishna
Kant and Ors., [1995) 5 SCC 75, Dwarka Prasad Agarwal v. Ramesh Chand .-
Agarwal, .(2003) 6 SCC 220, Sahebgouda v. Ogeppa, (2003) 6 SCC 151,
Dhruv Green Field ltd. v. Hukam Singh, (2002) 6 SCC 416; Swamy
Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors., (2005) 4
H SCALE 116 and Sopan Sukhdeo Sable and Ors. v. Assistant Charity
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RATANJIBHAI 1039
Commissioner and Ors., (20041 3 SCC 137, relied on. A
2.1. In the present case, in the plaint itself it is accepted that the
Church which was registered as a society under the Societies Registration
Act was a public trust as defined under Section 2(13) of the BPT Act. The
plaint nowhere suggests that the society and the trust had ever been treated
as two different entities. No case has been made in the plaint to the effect B
that the society as registered under the Societies Registration Act plays
any role or discharges any function which is not done by the trustees of
the trust. It also does not appear from a perusal of the plaint that the
society and the trust comprises of different persons or for different
functions to perform. (1065-C, D, E) C
2.2. In fact the Appellants have categorically admitted that the
Memorandum of Association of the Snciety itself became the deed of trust.
It also stands admitted that only with a view to have one body to
administer and manage the properties, the trust so created by the society
was also registered. It is not a case where the trust was created for the D
benefit of the society. (1068-B, CJ
2.3. It is not alleged that whereas the properties belong to the trust
it was managed by the society. The plaint furthermore does not disclose
that the decision as regard dissolution of the churches and congregation
of Brethren Church had been taken by anybody other than the trustees. E
The committees constituted for the aforementioned purpose, viz.,
Continuation Committee and Negotiating Committee, evidently were
represented by the authorities of the congregations and not of any society.
There is nothing on record to show that the concerned churches were being
managed by the societies registered under the Societies Registration Act F
It is clear that the properties have vested in the trustees and not in the
governing body of the society. [1065-E, F; 1066-C, BJ
Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State
of Delhi (Now Delhi Administration) and Anr., AIR (1962) SC 458, Dharam
Dutt and Ors. v. Union of India and Ors., [200411 SCC 712 and 11/achi Devi G
(Dead) By LRs. and Ors. v. Jain Society, Protection of Orphans India and
Ors., (2003) 8 SCC 413, relied on. "
Athmanathaswami Devasthanam v. K Gopalaswami Ayyangar, AIR
(1965) SC 338, referred to.
H
1040 SUPREME COURT REPORTS [2005] 3 S.C.R.
........
A 3. The suit in question also does not conform to the provisions of
Section 13 of the Societies Registration Act. Unless a suit is filed in terms
of Section 13 of the said Act, the Society is not dissolved. Even assuming
that the society stands dissolved in terms of its Memorandum of
Association and Articles of Association, the same would not ipso facto mean
that the properties could be adjusted amongst the members of the society
B in terms of the provisions of the said Act. Concededly, the properties of
the trust being properties of the religious trust had vested in such trust.
Such a provision also exist in the BPT Act. Thus, only because the society
has been dissolved, ipso facto the properties belonging to the trust cannot
be said to have been adjusted. The Appellants, ~hus have averred in the
c plaint that the suit relates to the property of the trust and their
administration. If the properties of the churches did not belong to the
society, the Appellant cannot claim the same as their successor. The plaint
has to be read meaningfully. So done, it leads to the only conclusion that
the dispute was in relation to the management of the church~s as religious
trust and.not as a society. Even if it is contended that the administration
D of the property would mean the properties of the Brethren Church both
as a trust and as a society, still then having regard to the legal position,
the property belonging exclusively to the trust, the suit will not be
maintainable. [1066-D, E, F, G, H; 1067-A)
.--fl
4.L The BPT Act provides for finality and conclusiveness of the order
E passed by the Charity Commissioner in Sections 21(2), 22(3), 26, 36, 41(2),
51(4) and 79(2). 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, this
Court is not concerned with a dispute as regard absolute title of the trust
F property. It is alsc. .iOt concerned with the question as regard 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 judicial procedure. In fact no order
G has been passed on the Appellant's application for changes in the entries
made in the registers maintained under Section 17 of the Act.
[1068-E, F, G, HJ
4.2. The BPT Act provides for express exclusion of the jurisdiction
--
of the Civil Court. In fact, the trustee of a public trust is enjoined with a
H statutory duty to make an application for registration wherein all
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RATANJIBHAI 104 J
necessary descriptions of movable and immovable property belonging to A
the trust including their description and particulars for the purpose of
identification are required to be furnished. Section 19 of the BPT Act
provides for an inquiry for registration with a view to ascertaining inter
alia the mode of succession to the office of the trustee as also whether any
property is the property of such trust. It is only when the statutory
authority satisfies itself as regard the genuineness of the trust and the B
properties held by it, an entry is made in the registers and books, etc.
maintained in terms of Section 17 of the BPT Act in consonance with the
provisions of Section 21 thereof. Such an entry is final and conclusive.
Changes can be brought about only in terms of Section 22 thereof.
(1068-H; 1069-A, B, C, DI C
4.3. A change notice having been given, it would now be for the
appropriate authority to consider the matter and if a change has occurred,
a finding is required to be arrived which must contain the reasons therefor.
The defendants are disputing that any such change in accordance with
law·was effected. An order passed by Deputy or Assistant Charity D
Commissioner is appealable. Yet again, when an amendment is made in
the entry in the register, the same would be final and conclusive. Even a
power exists for holding a further inquiry. (1069-D, El
4.4. Section 31 of the BPT Act bars a suit to enforce a right on behalf
of a public trust. Appellant got itself registered as a public trust in the E
year 1981. A suit evidently was filed by the plaintiffs in the year 1980
because Appellant was not then entitled to file a suit. It may be true that
the suit was filed under Order 1, Rule 8 of the CPC but therein the
question as to whether the Appellant herein, being a registered trust
became entitled to the properties of Brethren Church could not have been
gone into. What is prohibited is to enforce a right on behalf of a public F
trust. When the plaintiffs intended to enforce a right on behalf of the
Appellant, the suit was evidently not maintainable. (1069-F, GI
4.5. Furthermore, the purported resolutions of the churches affiliated
to the Brethren Church and merger thereof with the Appellant, having
regard to the provisions of the Act was required to be done in consonance G
with the provisions thereof. It is not necessary to consider as to whether
such dissolution of the churches and merger thereof in the Appellant would
amount to alienation of immovable property but even suth alienation is
prohibited in law. The control and management of the religious trusts vests
in the Charity Commissioner. The trustees of the Trust are statutorily H
1042 SUPREME COURT REPORTS [2005) 3 S.C.R.
A enjoined with a duty to render all cooperation to the Charity
Commissioner. The directions issued by the Charity Commissioner to the
trustees are binding. Dissolution of a trust is a matter which falls within
the exclusive jurisdiction of the Charity Commissioner.
(1069-H; 1070-A, BJ
B Dhu/abhai and Ors. v. The State of Madhya Pradesh and Anr., (19681
3 SCR 662, relied on.
5.1. Prayer (a) in the plaint is for a declaration. Such declaration
cannot be granted by a civil court as regard succession of the District
Church of Brethren as the same was a religious trust registered under the
C BPT Act. (1070-CJ
5.2. Prayer (b) of the plaint also could not have been granted, as the
question as to whether the applicant is the legal continuation and successor
of the First District Church of Brethren is a matter which would fall for
exclusive determination of Charity Commissioner keeping in view the
D provisions of the deed of trust as regard its succession. It would necessarily
follow that whether the First Appellant became a legal successor of the
properties held by the First District Church of Brethren could not also
have been granted. The decision and resolution purported to have been
adopted by the Synod and Gujarat Diocesan Council are binding on all
churches or not would again be a question which could have been gone
E into by the Charity Commissioner as the same had direct bearing not only
with t.he administration and management of the Church registered with
it but also related to the properties held by it. Such a decision of the
Charity Commissioner is again final and conclusive subject to the decision
of the.appellate authority, viz., Bombay Revenue Tribunal.
F (1070:-D, E, Fl
5.3. Grant of prayer (c) for perpetual injunction would also give rise
to adjudication on the question as to whether the Appellant had the legal
right to own the properties of the First District Church of Brethren and.
administer or manage the same although at the relevant time it was not
G registered trust and although no amendment had been effected in the
registers and books maintained by the Charity Commissioner in terms of
Sect~on 17 read with Sections 21 and 22 of the BPT Act. "fhe plaintiffs
with a view to obtain an order of injunction furthermore were required
to establish that they could file a suit ,for enforcement of right of the
Appellant as a religious trust and such a legal right vests either in the
H plaintiff or in the Appellant indirectly. Such a prayer, related to the
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RATANJIBHAI } 043
possession of the property, comes squarely within the purview of the BPT A
Act. If the question as regard recovery of possession of the property
belonging to a public trust squarely falls within the purview of Section 50
of the Act, had such application been filed before the Charity
Commissioner he was required to go into the question as to whether the
plaintiffs are persons having interest in the trust and whether a consent B
should be given to them to maintain a suit. Only when, inter a/ia, such
- consent is granted, a suit could have been filed in terms of Section 51 of
the Act. In the event of refusal to give consent, the persons interested could
have preferred an appeal. Yet again the question as regard existence of a
trust is a matter which squarely falls within the purview of Section 79 of
the Act. There is no doubt that the Charity Commissioner was impleaded C
as a party at a later stage of the suit only with a view to fulfill the
requirements of Sub-section (3) of Section 50 of the BPT Act.
(1070-G-H; 1071-A, B, C, DJ
Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru,
(1995) Supp 2 SCC 531, Narmadabai and Anr. v. Trust Shri Panchvati Balaji D
Mandir and Ors., (1995) Supp 3 SCC 676 and Shree Gol/aleshwar Dev and
Ors. v. Gangawwa Korn Shantayya Math and Ors., (1985) 4 SCC 393,
referred to.
6.1. The provisions of the BPT Act and the Scheme thereof leave no
manner of doubt that the BPT Act is a complete code in itself. It provides E
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 F
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 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. (1072-C, D, E) G
6.2. With a view to determine the question as regard exclusion of
jurisdiction of 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 H
1044 SUPREME COURT REPORTS [2005] 3 S.C.R.
A to t~e 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 ate 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
B c.ontext 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 reliefs sought for, that Civil Court has no
jurisdiction, Section 26 per force will have no application whatsoever.
6.3. Civil Court will have no jurisdiction in relatic;-n to a matter
C whereover the statutory authorities have the requisite jurisdiction. On the
other hand, if a question arises, which is outside the purview of the Act
or in rellltion to a matter, unconnected with the administration or
possession of the trust property, the Civil Court may have jurisdiction.
In this case, having regard to the nature of the lis,.the jurisdiction of the
D Civil Court was clearly barred.
Ramesh Chand Ardawatiwa v. Anil Panjwani, [20031 7 SCC 350,
distinguished.
State of Madras v. Kunnakudi Melamatam and Anr., AIR (1965) SC
E 1570, Sri Vedagiri Lakshmi Narasimha Swami Temple v. Jnduru Pattabhirami
Reddi, AIR (1967) SC 781, Chiranji/al Shrilal Goenka (Deceased) Through
LRs. v. Jasjit Singh and Ors., (19931 2 SCC 507, Rajasthan State Road
Transport Corporation and Anr.. v. Krishna Kant and Ors., [1995) 5 SCC 75,
Sahebgouda (Dead) ByLRs. and Ors. v. Ogeppa and Ors., (2003) 6 SCC 151,
NDMC v. Satish Chand (Deceased) By LR. Ram Chand, (2003) 10 SCC 38,
.F K.Shamrao and Ors. v. Assistant Charity Commissioner, (2003) 3 SCC 563,
Yeshwantrao Laxmanrao Ghatge and Anr. v. Baburao Bala Yadav (Dead) By
LRs. , (1978) I SCC 669, Suresh Ramniwas Mantri and Anr. v. Mohd.
lftequaroddin s!o Mohd Badroddin, (1999) 2 Mh.L.J. 131, Mahibubi Abdul
Aziz and Ors. v. Sayed Abdul Majid and Ors., (2001) 2 Mh.L.J. 512, Keki
Pestronji Jamadar and Anr. v. Khodadad Merwan Irani and Ors., AIR (1973)
G (Born) 130 and Nagar Wachan Mandir, Pandharpur v. Akbaralli Abdulhusen
and Sons and Ors., (1994) 1 MhW 280, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9419 of2003.
From the Judgment and Order dated 21.3.2003 of the Gujarat High
H Court in $;A. No. 303 of 1986.
CHURCH OF NORTH OF INDIA v. LAVAJIBHAI RATANJIBHAI [S.B. SINHA, J.] } 045
WITH A
I.A. Nos. 5-10 of 2005.
C.A. Sundaram, Ms. Rohini, Sashank Kumar, Ms. Manjula Gupta with
him for the Appellant.
B
K. Ramamoorthy, Huzefa Ahmadi, MJ. Marchant, Ejaz Maqbool, Nakul
Dewan, Ms. Saloni Sinha, Abhimit Sinha, Vikash Singh, M.N. Shroff, Naveen •
Chawla, D.M. Nargolkar and Shivaji M. Jadhav with him for the Respondents.
The Judgment of the Court was delivered by
S.B. SINHA, J. INTRODUCTION
c
The extent of bar of jurisdiction of Civil Court under Section 80 of the
Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the BPT Act') ,
is the question involved in this appeal which arises out of a judgment and
order dated 21.03.2003 passed by the High Court of Gujarat at Ahmedabad , D
in S.A. No. 303 of 1986.
BACKGROUND FACT:
The basic fact of the matter is not much in dispute.
E
In or about 1895, some American Missionaries established a religious
institution (Church) at Valsad for propagation of protestant faith ofChri!:itian
religion and to establish and manage the churches for the people professing
that faith. The object of the 'Brethren Church' was to propagate the work of
the church of the brethren in western India in order to reveal Christ by means
of evangelistic, educational, medical, literary, industrial school, social and F
charitable activities leading to the establishment of the kingdom of God. A
Continuation Committee is said to have been appointed in the year 1930 by
the representatives of the Brethren Church and other churches in a Round
Table Conference held in New Delhi with a view to consider the modalities
and other details for amalgamation of churches. The Committee is said to G
have worked out a broad basis for the unification of churches which was '
accepted by the participant churches whereupon a new committee came into
being in the year 1951. The First District Church of the Brethren in India
(Brethren Church) was registered as a religious society under the Societies
Registration Act, 1860 bearing Registration No. 1202/44; the object whereof
was to promote the work of the church of the brethren in Western India with H
1046 SUPREME COURT REPORTS " [2005] 3 S.C.R.
A the same object wherefor the church was established. Another Round Table
Conference is said to have been held in the year 1951 at New Delhi resulting
in appointment of a new committee known as 'Negotiating Committee' in
order to continue deliberations for the union of churches; five other associations
were included in the Committee, namely, The Council of the Baptist Churches
in North India, The Church of India, Pakistan, Burma and Ceylon, The
B Methodist Church (British and Australian Conference), The Methodist Church
in Sou_them Asia and The United Church of Northern India. The. Brethren
Church (First District Church of the Brethren) was registered as a public trust
in Gujarat bearing No. E-643, Bharuch in tenns of the BPT Act. The
Negotiating Committee made its final recommendations which came to be
C known as the '4th Plan of the Union' which was published in a book entitled
'Plan of Church Union in North India and Pakistan'; the principal
recommendation of the Committee being that all the six uniting churches
should be dissolved and united to become one church to be known as "The
Church of Northern India" (hereinafter referred to as "the CNI) which should
be the legal continuation and successor of the united churches and all the
D properties, assets, obligations etc. thereof would vest in or devolve on CNI.
The booklet of the 4th Plan is said to have been circulated to the governing
bodies of the uniting churches with a view to enable them to deliberate
thereover and to take appropriate decision in that behalf.
E On or about 17.02.1970, a Resolution bearing No. 70/08 is said to have
been passed by the majority of members for effecting the dissolution as a
society under the Societies Registration Act, 1860. The Negotiating Committee
thereafter on or about 29.11.1970 took a decision to formally inaugurate the
CNI at Nagpur. The Brethren Church allegedly placed the said Resolution
No. 70/08 at the altar wherein it was explicitly affirmed that the CNI shall
F be deemed to be the_ legal continuation and successor of the bre~hren church
and the rights, titles, claims, estates and the interests of the church together
with its privileges and obligations shall vest in the CNI as its legal heir on
or from the date of inauguration. The Church of North India Trust Association
was registered as a company under the Companies Act, 1956, in the year
G 1976. The original defendant Nos. 1 to 4 who were said to be initially part
of the CNI and were parties to the resolution dated 17 .02.1970 raised a
contention that the Brethren Church continued to exist. They started Qbstructing
the functioni'1g of the CNI, and in particular the worship in churches, and
asserted that the First ~rethren Church had not been dissolved and continued
and they represented the same.
H
CHURCH OF NORTH OF INDIA'" LA VAJIBHAI RATANJIBl IAI [S.B. SINHA, J.] l 047
The original plaintiffs, namely, Ambelal Okarial Patel, Shantilal A
Lakshmichand Purani, Bishop T.L. Christachari and Samuel Nagarji Bhagat
(since deceased) said to be the former office bearers of the Brethren Church
filed a suit in the Court of the Civil Judge, Senior Division, Bharuch, marked
as Civil Suit No. 72 of 1979.
The CNI was imp leaded as defendant No. 5 therein, although no relief B'
thereagainst was claimed contending that it was a necessary and/or a proper
paity. The Brethren Church were not made parties in the said suit. It is stated
at the Bar that the said churches were impleaded at a later stage of the
proceedings but the said applications were later on dismissed. The original
defendant No. 4 in his written statement filed in the said suit took a categorical C.
stand that there had been no dissolution of the Brethren Church and their
separate entity was not lost. According to the said defendant they were
temporarily suspended till it was revived again and, thus, they were entitled
to work for and on behalf of the Brethren Church. In the said proceedings,
certain interim orders were passed wherewith we are not concerned. However,
with a view to complete the narration of facts, we may notice that the CNI D
filed an application for its registration before the Charity Commissioner in
terms of the provisions of the BPT Act, which was granted by an order dated
12.5 .1980 with effect from 19. l l.l 97 l. The CNI thereafter filed a change
report before the Charity Commissioner on or about l 5. l.198 l. Admittedly,
the said application has not yet been disposed of.
While things stood thus, the Charity Commissioner was impleaded as
a party in the suit and in its written statement a plea was raised that the
jurisdiction of the Civil Court was barred in terms of Section 80 of the BPT
Act contending :
"4. In view of provisions of Bombay Public Trusts Act, 1950. The
F
question whether or not a trust of particular property is the property
of such trust, is to be decided exclusively by the Deputy or Assistant
Charity Commissioner appointed under the Act, the Assistant Charity
of the Brethren "as a public trust at No. E-643 (Bharuch) under the
Bombay Public Trusts ct, 1950. The decision of the Assistant Charity G '
Commissioner, Bharuch unless set aside as provided under the Act,
is final and conclusive. It is further submitted that the jurisdiction of
the Hon'ble Court is also barred under Section 80 of the Act. The
plaintiffs are, therefore, not entitled to the reliefs as prayed for by
them. The suit, deserves to be dismissed."
H
1048 SUPREME COURT REPORTS (2005) 3 S.C.R.
A PROCEEDINGS :
The learned Civil Judge by judgment and decree dated 31.3 .1984 decreed
the suit; findings in support whereof would be noticed a little later.
An appeal was preferred thereagainst on or about 4.5.1984 by the original.
B defendants in the Court of the District Judge, Bharuch, which was marked as
RCA No. 72 of 1984. By judgment and decree dated 11.8.1986, the said
appeal was allowed whereagainst the CNI (Appellant herein) preferred a
Second Appeal before the Gujarat High Court, which was marked as Second
Appeal No. 303 of 1986. On or about 29.3.2002, the Charity Commissioner
C is said to have filed a detailed affidavit in support of the Change Report No.
665/81. By reason of the impugned judgment and order dated 21.3.2003, the
said Second Appeal was dismissed.
Hence the Appellant is before us.
D CONTENTIONS :
Mr. C.A. Sundaram, the learned Senior Counsel appearing on behalf of
the Appellant would submit that the Court of First Appeal as also the High
Court committed a manifest error in passing the impugned judgments insofar
they failed to take into consideration the scope and purport of the suit.
E According to the learned counsel, the learned Trial Judge had rightly decreed
the suit having taken into consideration the fact that the matter relating to
formation of churches and their merger in the name of the CNI was not a
matter which could be determined by the Charity Commissioner in exercise
of his powers under the BPT Act. The learned counsel would contend that the
society and the trust are two separate entities. The Society being not a juristic
F person although cannot own any property but manage the affairs of the trust
which would be the owner of the property. According to the learned counsel
the Court of First Appeal and the High Court misdirected themselves in
passing the impugned judgments insofar as they proceeded on the premise
that having regard to the fact that properties belonging to the Brethren Church
G were registered in the books maintained by the Charity Commissioner under
Section 17 of the Act, any church affected thereby would fall within his
jurisdiction and consequently the dissolution of the society and managing of
the churches and consequently their merger would also come within the
purview of the provisions of the BPT Act.
H Mr. Sundaram would submit that a society registered under the Societies
CHURCH Of NORTH Of INDIA v. LAVAJIBHAI RA TANJIBHAI [S.B. SINHA, J.] } 049
Registration Act, 1860 and a trust registered under the BPT Act are two A
different entities. Whereas the activities and the dealings of the latter may fall
within the exclusive jurisdiction of the authorities specified under the BPT
Act, the activities of the society would be governed by the Societies
Registration Act, 1860. The Civil Court, therefore, according to Mr. Sundaram,
had the requisite jurisdiction to deal with the question as to whether the
resolution adopted in the year 1970 resulting in dissolution and the merger
B
of the churches was valid. Such a dispute, Mr. Sundaram would argue, is
beyond the jurisdiction of the Charity Commissioner. The learned counsel
would urge that once the dissolution of the Brethren Church and consequent
merger in the Appellant is held to be valid, in terms of the Section 26 of the
BPT Act, the Charity Commissioner is enjoined with a duty to make necessary C
changes in the books maintained under Section 17 of the BPT Act. Sections
3 l, 50, 51, 79 and 80 of the BPT Act, according to Mr. Sundaram, do not
clothe the Charity Commissioner or any other authority thereunder to determine
a question as r~gard the validity of a resolution of a society and/or its merger.
Mr. K. Ramamoorthy, the learned Senior Counsel appearing on behalf n'
the Brethren Church supporting the Appellant would contend that
administration of a religious property must be understood in its proper context.
According to the learned counsel, administration of a property belonging to
trust may not have anything to do with the actual possession or dealing with
the administration thereof.
E
Th~ learned counsel would draw our attention to the judgments in State
of Madras v. Kunnakudi Melamatam and Anr., AIR (1965) SC 1570;
Chiranjilal Shrilal Goenka (deceased) Through L.Rs. v. Jasjit Singh and
Ors., (1993] 2 SCC 507 and Rajasthan State Road Transport Corporation
and Anr. v. Krishna Kant and Ors., [1995] 5 SCC 75 and contended that in F
various situations, the Civil Court and the Probate Court alone have been
held to have exclusive jurisdiction and not the Charity Commissioner.
According to the learned counsel, the Charity Commissioner being a creature
of statute must exercise its jurisdiction within the four-comers thereof and
the matters which do not come within the purview of the_ BPT Act must
necessarily be left to the jurisdiction of the Civil Court. According to the G
- learned counsel the provisions of Section 50 of the BPT Act do not show that
requirements contained therein must be carried out even in a case where the
Charity Commissioner may not have any jurisdiction.
As regard interpretation of Section 31 of the BPT Act, the learned H
1050 SUPREME COURT REPORTS [2005] 3 S.C.R.
A counsel would contend that the provision thereof bars hearing and decision
in the suit and not the institution thereof. Although in the year 1979, the·
Appellant herein was not registered but as before hearing of the suit was
taken up, it became registered in the year 1980, the Civil Judge had the
jurisdiction to hear and decide the said suit even it involved dealing with the
B trust property.
Mr. Huzefa Ahmadi, the learned counsel appearing on behalf of the
contesting Respondents, on the other hand, would submit that for the purpose
of determining the question as to whether the suit before the Civil Court was
maintainable or not, the averments made in the plaint must be read as a
C whole and substratum thereof must be noticed. As adjudication was sought
for in relation to administration and possession of the properties of a trust;
the suit was not maintainable. It was pointed out that the true identity of the
Appellant had not been disclosed, i.e., as to whether it is a trust registered
under the BPT Act, or a company registered under the Indian Companies .J
Act, 1956.
D
The learned counsel submitted that although a distinction is sought to
be made between the activities of a society which runs the administration of
a trust and a trust which owns the property, no such distinction was made in
the proceedings before the courts below. Drawing our attention to certain
grounds taken in the Special Leave Petition, Mr. Ahmadi would urge, that in
E fact the finding of the High Court to the effect that the society and the trust
are two separate entities had been questioned. Taking us through the plaint,
the learned counsel would contend that plaintiffs as also the learned Trial
F
Judge proceeded on the basis that the trust had ceased to exist and wherever
the expression "Brethren Church" has been used in the judgment, the learned
Trial Court referred to it as a trust and not as a society.
-
Mr. Ahmadi would contend that the learned Trial Court proceeded on
the basis that there existed inconsistencies between the provisions of the
Societies Registration Act which is a Parliamentary Act and the BPT Act.
which is a State Act and relying on or on the basis of clause (2) of Article
G 254 of the Constitution of India, it came to the decision that the former shall
prevail over the latter. It is in that context, issues were decided and not on
the basis that the society and the trust are. two separate entities. We were
taken through the relevant paragraphs of the BPT Act and in particular Sections
2(10), 2(13), 13(b), 17, 18, 19, 20, 21, 22, 31, 36, SO, 51, 74, 79 and 80 by
H Mr. Ahmadi to show that the said provisions clearly indicate that the DPT
....,.._ CHURCH OF NORTH OF !NOIA v. LAVAJIBHAI RATANJIBHAI [S. B. SINHA,J .] lOSL
Act is a self-contained code and deals with all questions governing a trust A
and the properties held by it. It was urged that the provisions of Section 26
thereof must be read in that context. The learned counsel would submit that
the provisions of Section 26 of the BPT Act, in the facts and circumstances
of the case, would have no application where a suit was expressly barred
which regulates management of a trust, as the BPT Act created a specialized
machinery to determine the issues governing the same. B
Drawing our attention to the prayer (b) of the plaint, Mr. Ahmadi
would argue that the same would squarely fall within the purview of Sections ,
50 and 51 of the BPT Act and, thus, would be barred as no permission of the ,
Chief Commissioner was sought for and obtained.
c
The learned counsel would contend that the plea that the suit related to
the affairs of the society is merely a ruse or a camouflage. It was argued that
the society itself is a religious trust and, thus, both stand on the same footing '
and in· that view of the matter, the suit will not be maintainable.
D
The learned counsel would further submit that a finding of fact had·
bet:n arrived at by the Court of Appeal that the Brethren Church had not
ceased to exist, this Court should not interfere therewith.
-- Mr. M.N. Shroff, the learned counsel appearing on behalf of the Charity
Commissioner, adopted the submission of Mr. Ahmadi and would further 'E
contend that the substantial issue before the learned Civil Judge was as to
whether the Brethren Church which was registered as trust had ceased to
exist and/or stood dissolved or not.
SOCIETIES REGISTRATION ACT, 1860
'p
The Societies Registration Act was enacted, as it was found expedient
~
that provisions should be made for improving the legal condition of societies
established for the promotion of literature, science, or the fine arts, or for the
--< diffusion of useful knowledge, the diffusion of political education and for
charitable purposes.
0
-- Section 2 of the Societies Registration Act provides for memorandum
of association which, inter a/ia, must contain the name of the society and the
objects of the society. A society which is formed for charitable purpose may
also carry on its activities. The words 'charitable purposes' includes religious
purposes. Section 4 provides for annual list of managing body to be filed
,, H
I(
___..
i
-\~
A
1052 SUPREME COURT REPORTS [2005] 3 S.C.R.
stating names, addresses and occupations of the governors, council, directors,
-
committee, or other governing body then entrusted with the management of
the affairs of the society.
In terms of Section 5, the property of a society both movable and
immovable, if not vested in the trustees, would be deemed to have vested, for
B the time being, in the governing body of such society. A suit by or against
the society is to be filed in the name of the President, Chairman or Principal
Secretary or trustees of such society as may be determined by the rules and
regulations thereof.
C Section I 3 of Societies Registration Act provides for dissolution of
societies and adjustment of their affairs. It reads as under :
"13. Provision for dissolution of societies and adjustment of their
affairs - Any number not less than three-fifths of the members of any
society may determine that it shall be dissolved, and thereupon it
shall be dissolved forthwith, or at the time then agreed upon, and all
D necessary steps shall be taken for the disposal and settlement of the
property of the society, its claims and liabilities according to the rules
of the said society applicable thereto, if any, and if not, then as the
-
governing body shall find expedient, provided that, in the event of
any dispute arising among the said governing body or the members
E of the society, the adjustment of its affairs shall be referred to the
principal Court of original civil jurisdiction of the district in which
the chief building of the society is situate; and the Court shall make
such order in the matter as it shall deem requisite:
Assent required - Provided that no society shall be dissolved unless
three-fifths of the members shall have expressed a wish for such ,___
dissolution by their votes delivered in person or by proxy, at a general
meeting convened for the purpose:
Government consent - Provided that whenever any Government is a
member of, or a contributor to, or otherwise interested in any society
G registered under this Act, such society shall not be dissolved without
the consent of the Government of the State of registration."
......
BOMBAY Pl1BLIC TRUSTS ACT
The BPT Act, on the other hand, was enacted to regulate and to make
H iJetter provision for the administration of public religious and charitable trusts
r
CHURCH OF NORTH OF INDIA v. LAVAJIBHAI RATANJIBHAI (S.B. SINHA, J.] l 053
in the State of Bombay. A
Section 2 is the interpretation clause. Section 2 ( l 0) defines "person
having interest" to include in the case of a society registered under the Societies
Registration Act, 1860 any member of such society. Section 2(13) defines
"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, B,
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. A "trustee" has been defined to
mean a person in whom either alone or in association with other persons, the
trust property is vested and includes a mana~er. C
Section 3 provides for establishment of the office of the Charity
Commissioner for the purpose of superintending the administration as also
carrying out the provisions of the Act subject to such general or special
orders as the State Government may impose. Section 3A provides for the
appointme_nt of Joint Charity Commissioners. Section 5 provides for the D,
appointment of Deputy and Assistant Charity Commissioners.
Section 9 occurring in Chapter Ill of the Act defines charitable purposes
inter alia to include relief of poverty or distress, education, medical relief and
the advancement of any other object of general public utility but would not
include a purpose which relates exclusively to sports, or exclusively to religious E
teaching or worship. Section I 0 contains a non-obstante clause in terms
whereof a public trust shall not be void only on the ground that the persons
or objects for the benefit of whom or which it is created are unascertained
or unascertainable. Section I I provides that the public trust created for purposes
some of which are charitable or religious and some of which are not shall be F
void in respect to the charitable or religious purpose only on the ground that
it is void with respect to the non-charitable or non-religious purpose.
Section 13 reads as under :
"I 3. If any public trust is created for a specific object of a charitabl~ G
or religious nature or for the benefit of a society or institution
constituted for a charitable or religious purpose, such trust shall not
be deemed to be void only on the ground
(a) that the performance of the specific object for which the trust was
created has become impossible or impracticable, or H
1054 SUPREME COURT REPORTS [2005] 3 S.C.R.
A (b) that the society or institution does not exist or has ceased to exist,
notwithstanding the fact that there was no intent for the appropriation
of the trust property for a general charitable or religious purpose."
Chapter IV of the Act provides for registration of public trusts. The
said Chapter makes the registration of public trust compulsory. Section 17
B ordains keeping and maintenance of such books, indices and other registers
as may be prescribed in every Public Trusts Registration Office or Joint
Public Trusts Registration Office. Such books, indices and registers would
contain such particulars as may be prescribed. Section 18 imposes a duty
upon the trustee of a public trust to make an application for th1.. registration
C of the public trust in writing and would contain such particulars as mentioned
in Sub-section (5) of Section 18. Clause (iii) of Sub-section (5) of Section 18
provides that the list of the movable and immovable trust property and such
descriptions and particulars as may be sufficient for the identification thereof
shall be stated as and when such application for registration of the trust i~
filed. Section 19 provides for an Inquiry for registration for the purpose of
D ascertaining:
"(i) whether a trust exists and whether such trust is a public trust,
(ii) whether any property is the property of such trust,
(iii) whether the whole or any substantial portion of the subject-
E matter of the trust is situate within his jurisdiction,
· (iv)the names and addresses of the trustees and manager of such
trust,
(v) the mode of successio" to the office of the trustee of such trust,
F
(vi) the origin, nature and object of such trust,
(vii) the amount of gross average annual income and expenditure of
such trust, and
(viii) any other particulars as may be prescribed under sub-section (5)
G of section 18."
Section 20 provides for recording of the findings .by the Deputy or
Assistant Charity Commissioner on completion of an inquiry provided for
under Section 19. On completion of such an inquiry in accordance with the
H findings; the Deputy or Assistant Charity Commissioner is enjoined with the
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RATANJIBHAI [S.B. SINHA, J.] } 05 5
duty to make entry in such register in terms of Section 21 of the Act; Sub- A
section (2) whereof provides that such entrie~ shall be final and conclusive.
Section 22 provides for the change which m~y occur in any of the entries
recorded in the register kept under Section 17 to make an appropriate
application within 90 days from the date of the occurrence of such change.
Sub-section (I A) of Section 22 reads thus :
B
- "(IA) Where the change to be reported under sub-section (I) relates
to any immovable property, the trustee shall, alongwith the report,
furnish a memorandum in the prescribed form containing the
particulars (including the name and description of the public trust)
relating to any change in the immovable property of such public ~
trust, for forwarding it to the sub-registrar referred to in sub-section
(7) of section 18."
Sub-section (2) of Section 22 empowers a Deputy or J\ssistant Charity
Commissioner to hold an inquiry for the purpose of verifying the correctness
of the entries in the register kept under Section 17 or ascertaining whether D
any change has occurred in any of the particulars recorded therein. In the
event, a change is found to have occurred in any of the entries recorded in
the register kept under Section 17, the Deputy or Assistant Charity
Commissioner is required to record a finding with the reasons therefor to that
effect. Such an order is appealable to the Charity Commissioner. By reason
of changes which have been found to have occurred, the entries in the register E
are required to be amended. Such amendment on the occurrence of change
is final and conclusive. Section 22A empowers the Deputy or Assistant Charity
Commissioner to hold further inquiry. Section 30 creates a legal fiction as
regard notice on the part of a person acquiring immovable property of the
relevant particulars relating to such trust entered in the register in relation to F
any property belonging to a public trust. Section 31 creates a bar to hear or
decide suits in the following tenns:
"31 (I) No suit to enforce a right on behalfof a public trust which has
not been registered under this Act shall be heard or decided in any
Court. G
--- (2) The provisions of sub-section (I) shall apply to a claim of set off
or other proceeding to enforce a right on behalf of such public trust."
Chapter V provides for the Accounts and Audit. Section 36 bars
alienation of immovable property of public trust without the previous sanction H
1056 SUPREME COURT REPORTS [2005) 3 S.C.R.
A of the Charity Commissioner. In the event, such previous sanction is not
granted, an appeal thereagainst is maintainable before the Gujarat Revenue
Tribunal.
Chapter VI provides for the control of the charitable or religious trusts
and for the said purpose in terms of Section 37 the Charity Commissioner is
B empowered to:
"(a) to enter on and inspect or cause to be entered on and inspected
any property belonging to a public trust;
c
(b) to call for or inspect any extrac~ from any proceedings of the
trustees of any public trust and any books of accounts or documents
in the possession, or under the control, of the trustees or any person
on behalf of the trustees;
-
(c) to call for any return, statement, account or report which he may
think fit from the trustees or any person cqnnected with a public
D trust;"
Sub-section (2) of Section 37 enjoins a duty upon every trustee to
afford all reasonable facilities to any officer exercising any of the powers
under sub-sec.tion (I). Section 41 A empowers the Charity Commissioner to -J_
issue directions to the trustee and other persons to ensure that trust is properly
E administered and the income thereof is properly accounted for or duly
appropriated and applied to the objects and for the purposes of the trust.
Chapter VII provides for the functions and powers of Charity
Commissioner other than those referred to in the other Chapters. Section 47
provides· for the appointment of a new trustee when one or the other conditions
F specified therein is satisfied. Section 50 provides for suits relating to public
trusts which reads as under :
"50. In any case •
(i) where it is alleged that there is a breach of a public trust,
G
(ii) where a direction is required to recover possession of a property
belonging to a public trust or the proceeds thereof or for an account
of such property or proceeds from any person including a person
holding adversely to the public trust, or
H (iii) where the direction of the court is deemed necessary for the
CHURCH OF NORTH OF INDIA"· LAVAJIBHAI RA TANJIBHAI [S.B. SINHA,J.] } 057
administration of any public trust, A
the Charity Commissioner after making such enquiry as he thinks
necessary or two or more persons having an interest in the trust and
having obtained the consent in writing of the Charity Commissioner
as provided in section 51 may institute a suit whether contentions or
not in the Court within the· local limits of whose jurisdiction the B
whole or part of the subject-matter of the trust is situate, to obtain a
decree for any of the following reliefs
(a) an order for the recovery of the possession of such property or
proceeds thereof,
(b) the removal of any trustee or manager,
c
(c) the appointment of a new trustee or manager,
(cc) vesting any property in a trustee,
(d) a direction for taking accounts and making certain inquiries, Ji)
(e) a declaration as to what proportion of the trust property or of the
interest therein shall be allocated to any particular object of the trust,
(f) a direction authorizing the whole or any part of the trust property
to be let, sold, mortgaged or exchanged, E
(g) the settlement of a scheme or variations or alterations in a scheme
already settled, or
(h) granting such further or other relief as the nature of the case may
require;
Provided that no suit claiming any of the reliefs specified in this
section shall be instituted in respect of any public trust except in
conformity with the provisions thereof:
Provided further that the Charity Commissioner may, instead of
instituting a suit, make an application to the Court for a variation or G
alteration in a scheme already settled."
Sections 5 I , 79 and 80 read as under :
"51 (I) If the persons having an interest in any public trust intend to
file a suit of the nature specified in section 50, they shall apply to the H
1058 SUPREME COURT REPORTS [2005] 3 S.C.R.
A Charity Commissioner in writing for his consent. The Charity
Commissioner, after hearing the parties and after making such inquiry
as he thinks fit, may within a period of six months from the date on
which the application is made, grant or refuse his consent to the
institution of such suit. The order of the Charity Commissioner refusing
his consent shall be in writing and shall state the reasons for the
B refusal.
(2) If the Charity Commissioner refuses his consent to the institution
of the suit under sub-section (I) the persons applying for such consent
may file an appeal to the Bombay Revenue Tribunal constituted under
the Bombay Revenue Tribunal act, 1939, in the manner provided by
c this Act.
(3) In every suit filed by persons having interest in any trust under
section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the Bombay Revenue Tribunal in appeal
D under section 71, the decision of the Charity Commissioner under
sub-section (1) shall be final and conclusive."
"79. (I) 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
E 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."
F
"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, or in respect of which the decision or order of such officer
or authority has been made final and conclusive."
G
Having noticed the statutory scheme of the said Act, we may consider
the provisions of Section 26 thereof which is relevant for the purpose of this
case, which is as under :
"26. Any Court of competent jurisdiction deciding any question
H relating to any public trust which by or under the provisions of this
CHURCH OF NORTH OF INDIA'" LA VAJIBHAI RA TANJIBHAI [S.B. SINHA, J.] I059
Act is not expressly or impliedly barred from deciding shall cause A
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 amendments so made 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 B
such alterations, the amendments made shall be final and conclusive."
JURISDICTION OF CIVIL COURT - Principles for determination :
The question as regard ouster of a jurisdiction of a Civil Court must be
construed having regard to the Scheme of the Act as also the object and c
purport it seeks to achieve. The law in this regard is no longer res integra.
A plea of bar to jurisdiction of a civil court must be considered having
regard to the contentions raised in the plaint. For the said purpose, averments
disclosing cause of action and the reliefs sought for therein must be considered D
in their entirety. The Court may not be justified in determining the question,
one way or the other, only having regard to the reliefs claimed de'hors the
factual averments made in the plaint. The rules of pleadings postulate that a
plaint must contain material facts. When the plaint read as a whole does not
disclose material facts giving rise to a cause of action which can be entertained
by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code E
of Civil Procedure.
In Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr.,
[1968] 3 SCR 662, Hidayatullah, CJ summarized the following principles
relating to the exclusion of jurisdiction of civil courts :
F
(a) Where the statute gives a finality to the orders of the special
tribunals, the civil court's jurisdiction must be held to be excluded
if there is adequate remedy to do what the civil courts would
normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not
been complied with or the statutory tribunals has not acted in G
conformity with the fundamental principles of judicial procedure.
(b) Where there is an express bar of the jutisdiction of the court, an
examination of the scheme of the _particular Act to find the
~ adequacy or the sufficiency of the remedies provided may be
relevant but is not decisive to sustain the jurisdiction of the Civil H
1060 SUPREME COURT REPORTS (2005] 3 S.C.R.
A Court. ......
Where there is no express exclusion, the examination of the
remedies and the scheme of the particular Act to find out the
intendment becomes necessary and the result of the inquiry may
be decisive. In the latter case, it is necessary to see if the statute
B creates a special right or a liability and provides for the
determination of the right or liability and further lays down that
all questions about the said right and liability shall be determined
by the tribunals so constituted, and whether remedies normally
associated with actions in Civil Courts are prescribed by the said
statute or not.
c
(c) Challenge to the provisions of the particular Act as ultra vires
cannot be brought before tribunals constituted .under that Act. -
Even the High Court cannot go into that question on a revision
or reference from the decision of the tribunals.
D (d) When the provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is
open. A writ of certiorari may include a direction-for refund ifthe
claim is clearly within the time prescribed by the Limitation Act
but it is not a compulsory remedy to replace a suit.
(e) Where the particular Act contains no machinery for refund of tax
E
collected in excess of constitutional limits or illegally collected,
a suit lies.
(f) Questions of the correctness of the assessment, apart from its
constitutionality, are for the decision of the authorities and a civil
suit does not lie if the orders of the authorities are declared to be
F final or there is an express prohibition in the particular Act. In
either case, the scheme of the particular Act must be examined
because it is a relevant enquiry.
(g) An exclusion of the jurisdiction of the civil court is not readily
to be inferred unless the conditions above set down apply.
G
[See also Rajasthan State Road Transport Corporation and Anr. v.
Krishna Kant and Ors., [1995] 5 SCC 75, Dwarka Prasad Agarwal v. Ramesh
Chand Agarwal, [2003] 6 SCC 220, Sah_ebgouda v. Ogeppa, (2003] 6 .SCC ...-
151, Dhruv Green Field Ltd v. Hukam Singh, (2002] 6 SCC 416 and Swamy
Atmananda artd Ors. v. Sri Ramakrishna Tapovanqm and Ors., (2005) 4
H
CHURCH OF NORTH OF INDIA v. LAVAJIBHAI RA TANJIBHAI [S.B. SINHA, J.] I 061
SCALE 116]. A
The same, however, would not mean that in a given case if the court
has the jurisdiction to determine a part of the relief claimed, it will not
confine itself thereto and reject the plaint in its entirety. For the purpose of
determination of question as to whether the suit is barred, the averments
made in the plaint are germane. [See Sopan Sukhdeo Sable and Ors. v. B
Assistant Charity Commissioner and Ors., [2004) 3 SCC 137).
ANALYSIS OF BPT ACT :
The BPT Act is a special law. It confers jurisdiction upon the Charity
Commissioner and other authorities named therein. The statute has been C
enacted by the Parliament in public interest to safeguard the properties vested
in the trusts as also control and management thereof so that the trust property
may not be squandered or the object or purport for which a public trust is
... created may not be defeated by the persons having control thereover. A
society may be created either for charitable or religious purposes as also forr
other purposes. A society registered under the Societies Registration Act is
D
not a juristic person. It cannot own any property. The properties belonging
to a society admittedly vest in the trustees. In terms of Section 2(13) of the
BPT Act, a society is also a charitable trust. Both the Acts are regulatory in,
nature. The object and purport of both the Acts are clear and the provisions
thereof do not contain any obscurity. It has not been argued before us, as was E
-
done before the learned Trial Judge, that there exists any inconsistency between
the provisions of the Societies Registration Act which is a Parliamentary Act,
on the one hand, and the BPT Act, which is a State Act, on the other. The;
core question which had been raised before us is as to whether the Society
managing or governing the trust having a separate entity; in relation to its F
affairs the jurisdiction of the civil court is barred.
ANALYSIS OF THE AVERMENTS MADE IN THE PLAINT
With a view to determine the said question it is necessary to consider
the avennents made in the plaint.
The Brethren Church has its history which has been traced in paragraph
I of the plaint. Paragraph 2 speaks of registration of the church under the
Societies Registration Act in the year 1944 and registered under BPT Act
after the same came into force.
H
1062 SUPREME COURT REPORTS [2005) 3 S.C.R.
A It has been averred that the resolution of the Brethren Church affinned
that C.N.I. would be deemed to be legal continuation and successor of the
Brethren Church and rights, title, claims, estates and interest of this Church
together with its privileges and obligations shall, as from the date of
inauguration, vest in C.N.I. as its legal heir. The Church, thus, ceased to exist
B as separate entity both as a society and as a trust. Although it is contended
that, as provided in the constitution of C.N.I., the Church of North India
Trust Association came to be registered as a company under the provisions
of the Companies Act in the year 1976 but if the vesting had already taken
place in C.N.I. as far back as in the year 1970, the question of trust property
vesting in a company would not arise.
c The records do not show that the said company had ever taken any
decision as regard control and management of the Trust and/ or had dealt
with the properties belonging to the Brethren Church.
It is also not in dispute that local churches or congregations which
D desired to function on the basis of the old constitution were at liberty to do
so till the 3rd Ordinary Synod of C.N.I. which was to be held in 1977.
Ac~ording to the plaintiffs, most of the churches or congregations under
the Gujarat Diocesan Council implemented the said chapter. The church or
congregation at Valsad although decided to adopt the said constitution, but
E it is contended that in the intervening period the property Committee (Property
Trust Board) of the former Brethren Church continued to manage the
properties, estate, etc. of Valsad Church as an agent of and on behalf of the
Gujarat Diocesan Council. -
'
The defendant Nos. I to 4 who were residents of Valsad and Navsari;
F took exceptions to the decision of the Synod to terminate the interim period
with ~ffect from 7th October, 1977 and held a meeting on 12th November,
1978.
A resolution had been adopted by the sa!d defendants along with others
G asserting that their independent unit would hold all the movable and immovable
properties, deposit in a bank and cash in hand of the church in its properties
wherefor a special committee was constituted.
The defendant Nos. 2 to 4 are said to the members of the said committee
and defendant No. I claims to be the Pastor of the Brethren Church.
H Admittedly, a decision of the executive committee of the Gujarat Diocesan
CHURCH OF NORTH OF INDIA'" LAVAJIBHAI RA TANJIBHAI [S.B. SINHA,J.] }063
Council taken by it at its meeting held on 11th November, 1978 was stated, A
to be illegal by the defendant Nos. I to 4. It is averred:
"The defendants Nos. I and 2 also claim to be the Treasurer and
Secretary respectively of the said "Valsad Brethren Church". These'
dissidents are acting in the name of the former Brethren Church and,
have been writing letters as office bearers of former Brethren Church B
to the Valsad District Co-operative Bank, the Ankleshwar Branch of
the Broach District Central Co-operative Bank etc., asking them not ,
to deal with the members of the legally constituted Pastorate committee
of Ankleshwar and Valsad and asserting that they are the only persons·
legally entitled to deal with the financial affairs of the Ankleshwar , C ·
and Valsad Pastorates. Besides, defendant No. 2, styling as a secretary
of Brethren Church has complained to the authorities that the 20 local '
Pastorates under the Gujarat Diocesan Council do not function in the
name of Brethren Church and do not collect funds in the name of the '
Brethren Church. A similar complaint was made by him to the .
Assistant Charity Commissioner Broach who had the matter inquired D
into. The defendant No. 2, again, purporting to act as a Secretary of '
the Valsad Brethren Church, wrote a letter on 20th June, 1979 to the
legally elected Treasurer of the Ankleshwar church challenging the
latter's authority to act as such Treasurer. The defendant No. 3 and
some of his associates residing at Jalapore, Taluka Navsari, District , E
Valsad, have issued a statement dated 8th July, 1979 declaring their
intention to sever all their connections with C.N.I. and to function as 1
an independent unit with effect from 15th July, 1979 in the name of
Brethren Church, Jalalpore. By the said statement, the members of
the C.N.I. at Jalalpore have been directed not to use or occupy the
church." F
The aforementioned action on the part of the defendant Nos. l to 4 and
their associates was the subject matter of the suit.
In the aforementioned context, the plaintiffs had questioned the actions
and/ or activities of the defendant Nos. l to 4 and other dissidents insofar as G
they tend to prevent or hinder the plaintiffs and other members of the Pastorate
from acting under and in accordance with the said decisions and resolutions
of the Gujarat Diocesan Council and the constitution of Synod violate and
infringe the legal rights of these persons to do so and are illegal.
The Appellant herein was joined as defendant No. 5 in the said suit, H
1064 SUPREME COURT REPORTS (2005) 3 S.C.R.
A although no relief had been claimed against the original defend~nt No. 5 who
is the Appellant before us. The status of the defendant No. 5 has not been
disclosed in the plaint. The legal status of Church of North India has not been
disclosed in the plaint.
It is accepted that the defendant No. 5 - Appellant has got itself
B a
registered as trust only in the year 1980. It also stands admitted that a
change report has been filed by the Appellant before the Commissioner of
Charity in the year 1981.
We have noticed hereinbefore that as regard the correctness or otherwise
of functioning of the congregation of Ankleshwar and Valsad had been the
C subject matkr of complaints before the authorities under the BPT Act.
One of the causes of action for instituting the suit is said to be constitution
of a special committee by the defendant Nos. I to 4; resolution dated 12th
November, 1978 was passed and the obstructions created by them to the
D plaintiffs and other members of the Pastorates through the actions of the
Plaintiffs and other members of the Pastorates in the name of the former
Brethren Church.
The plaintiffs made their position clear when they categorically stated
in paragraph 21 that the suit inter alia involved· questions as to the rights of
E property of the former Brethren Church.
In the aforementioned premise, plaintiffs had prayed for the following
reliefs :
"(a) It may plea5e be declared that the former First District Church
p of Brethren has ceased to exist.
(b) it may please be declared that the Church of North India is the
legal continuation and successor of the said First District Church of
Brethren together with the right, title, claim, interest in or over its
properties and the constitution, decisions and resolutions of the Church
G of North India, its Synod and Gujarat Diocesan Council are binding
on all the Pa5torates on Gujarat which were functioning as local
Churches or congregations under the First District Church of Brethren.
(c) The defendants No. I to 4 and their associates may be restrained
by a perpetual injunction from acting in any manner contrary to the
H constitution, decisions and resolutions of the church of North India
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RA TANJIBHAI [S.B. SINHA, J.] } 065
its Synod and Gujarat Diocesan Council and from obstructing in any A
manner the plaintiffs and other members/ office bearers of these
pastorates under the Church of North India in acting in accordance
with the said constitution, decisions and resolutions and in their use,
enjoyment and possession of the Churches and their properties.
(d) The defendants No. 1 to 4 and their associates may be restrained B
--- from acting in the name of the First District Church of Brethren and '
from collecting funds, donations, etc. in that name.
(e) The defendants Nos. 1 to 4 may be directed to pay to the plaintiffs .
....,..- the costs of this suit."
c
DETERMINATION :
The plaint nowhere suggests that the society and the trust had ever been
treated as two different entities. No case has been made in the plaint to the
effect that the society as registered under the Societies Registration Act plays
any role or discharges any function which is not done by the trustees of the D
trJst. It also does not appear from a perusal of the plaint that the society and
the trust comprises of different persons or for different functions to perform.
In fact in paragraph 2 of the plaint it is accepted that the Church which was
registered as a society under the Societies Registration Act was a public trust
as defined under Section 2(13) of the BPT Act. The ownership of movable
and immovable properties ilt the places mentioned in the plaint is referable
:g
to t'1e congregations under the Brethren Church. It is not alleged that whereas
the properties belong to the trust it was managed by the society. The plaint
furthermore does not disclose that the decision as regard dissolution of the
churches and congregation of Brethren Church had been taken by anybody
other than the trustees. The committees constituted for the aforementioned F
purpose, viz., Continuation Committee and Negotiating Committee, evidently
were represented by the authorities of the congregations and not of any
society. A decision, as would appear from the averments made in paragraph
6 of the plaint, to dissolve six uniting Churches and merge the same into one,
viz., the Church of Northern India (C.N.I.) so as to make the latter a legal
continuation and successor of the United Churches and all the properties, G
~ assets, obligations, etc. of these uniting churches would vest in or dissolve on
C.N.I. The very fact that a decision having been taken as regard the properties,
assets, obligations of the United Churches, the same would mean that they
would vest in the trust to be created for the said purpose and not for the
benefit of any society. H
1066 SUPREME COURT REPORTS (2005] 3 S.C.R.
A We are not oblivious of the fact that the Resolution adopted in the
meeting held on 17th February, 1968 allegedly fulfilled all the requirements
for such resolution as provided in the Societies Registration Act but it is now
beyond any controversy that the society having not owned any property, their
transfer in favour of a new society was impermissible in law. In terms of
B Section 5 of the Societies Registration act, all properties would vest in the
trustees and only in case in absence of vesting of such properties in trustees
the same would be deemed to have been vested for the time being in the
governing body of such property. In this case, it is clear that the properties
have vested in the trustees and not in the governing body of the society.
C There is nothing on record to show that the concerned churches were
being managed by the societies registered under the Societies Registration
Act. In any event, it stands accepted that the dispute as regard dissolution of
societies and adjustment of their affairs should have been referred to the
principal court of original civil jurisdiction.
D The suit in question also does not conform to the provisions of Section
13 of the Societies Registration Act.
Section 20 of the Act provides that the societies enumerated therein can
only be registered under the said Act.
E Urtless a suit is filed in terms of Section I 3 of the Act, the Society is
not dissolved. Even assuming that the society stands dissolved in terms of its
Memorandum of Association and Articles of Association, the same would
not ipso facto mean that the properties could be adjusted amongst the members
of the society in terms of the provisions of the said Act. Concededly, the
properties of the trust being properties of the religious trust had vested in
F such trust. Such a provision, we have noticed hereinbefore, also exist in the
BPT Act. Thus, only because the society has been dissolved, ipso facto the
properties belonging to the trust cannot be said to have been adjusted. The
Appellants, thus, we have noticed hereinbefore, have averred in the plaint
that the suit relates to the property of the trust and their administration. If the
G properties of the churches did not belong to the society, the Appellant herein
cannot claim the same as their successor. The plaint has to be read
meaningfully. So done, it leads to the only conclusion that the dispute was
in relation to the management of the churches as religious trust and not as a
society. Even if it is contended that the administration of the property would
mean the properties of the Brethren Church both as a trust and as a society,
H still then having regard to the legal position, as discussed supra, the property
,..__. CHURCH OF NORTH OF INDIA''· LA VAJIBHAI RA TANJIBHAI [S.B. SINHA, J.] 1067
belonging exclusively to the trust, the suit will not be maintainable. A
It is interesting to note that the Appellants themselves in grounds l, 2,
4, 5 and 6 have categorically stated that both the society registered under the
Societies Registration Act and the trust registered under the BPT Act is only
one entity and that upon dissolution of a society the trust automatically ceases.
and all that remains is to carry out the registration under the BPT Act wherefor B
applications have been made before the Charity Commissioner. The stand
taken by the Appellants herein is unequivocal in nature. The Trial Court also
appears to have proceeded on that basis, as would appear from Issue No. 4
framed by it which is as under:
--- "(4) Whether it is proved that the Brethren Church was also dissolved ,C
and ceased to exist as a separate entity as alleged?
The learned Trial Judge observed :
"Now, whether the First district Church of Brethren has been legally
dissolved in accordance with the provisions of the Societies ))
Registration Act (Section 13) or whether it exists till today, can only
be decided by the Civil Court and such a dispute cannot be decided
by the Charity Commissioner and as such, on this court also the
present Civil Court is the only competent Court to decide the suit of
the present nature. Apart from this, the stradge consequence would
follow if it were to be held that the question of dissolution of the First
E
District Church of Brethren as a society can be decided by the Civil
Court but the question of dissolution of it as a trust cannot be decided
by the Civil Court because the First District Church of Brethren is
only the on institution and in its dual capacity viz. the society as well
as the trust. Apart from this, even if it is assumed for the sake of an F
argument that the jurisdiction of the dispute is to be divided in two
parts, then in that case, there is every possibility of conflicting decisions
by the Civil Court and the Charity Commissioner and this would lead
to anomaly."
The Trial Court, however, proceeded to determine the issue on the G.
premise that there exists an apparent conflict between the Societies Registration
', Act and the BPT Act holding that as regard question of jurisdiction of the
civil court, the provisions of the BPT Act to the extent of repugnancy would
be inoperative.
H
\
1068 SUPREME COURT REPORTS [2005] 3 S.C.R.
A The finding of the learned Trial Judge on that count is apparently
wrong. The learned counsel for the Appellants also did not raise any contention
before us that having regard to the provisions contained in Article 254 of the
Constitution of India, the provisions of the Societies Registration Act shall
· prevail over the BPT Act.
B In fact the Appellants have categorically admitted that the Memorandum
of Association of the Society itself became the deed of trust. It also stands
admitted that only with a view to have one body to administer and manage
the properties, the trust so created by the society was also registered. It is not
a case where the trust. was created for the benefit of the society. Furthermore,
C there is nothing on record to show the mode and manner of the management
and control of the trust property. [See Board of Trustees, Ayurvedic and
Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) and
Anr., AIR (1962) SC 458, Dharam Dutt and Ors., v. Union ofIndia and Ors.,
[2004] l SCC 712, para 52 and Jllachi Devi (Dead) By LRs. and Ors. v. Jain -.
Society, Protection of Orphans India and Ors., [2003] 8 SCC 413, paras 21
D and 22]
In Athmanathaswami Devasthanam v. K. Gopalaswami Ayyangar, AIR
(1965) SC 338, this Court did not permit a new question to be raised. In this
case also, a new contention has been raised contrary to the pleadings that the
society and the trust afe different entities.
E
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).
In view of the decision of this Court in Dhulabhai (supra) such finality
F clause would lead to a conclusion that 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 regard
absolute title of the trust property. We are also not concerned with the question
as regard creation of any right by the trust in a third party which would be
G 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 judicial 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
H -f;
CHURCH OF NORTH OF !NOIA v. LA VAJIBHAI RATANJIBHAI [S.B. SINHA, J.] 1069
BPT Act provides for express exclusion of the jurisdiction of the ~ivil Court. A
It in various provisions contained in Chapter IV a power of inquiry and
consequently a power of adjudication as regard 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 trust~e of a
public trust is enjoined with a statutory duty to make an application for
registration wherein all necessary descriptions of movable and immovable B
--- 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 a/ia the mode
of succession to the office of the trustee as also whether any property is the
...-- property of such trust. It is only when the statutory authority satisfies itself c
as regard the genuineness of the trust and the properties held by it, an entry
is made in the registers and books, etc. maintained in tenns 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 tenns of Section 22 thereof.
D
A change notice having been given, it would now be for the appropriate
authority to consider the matter and if a change has occurred, a finding is
required to be arrived which must contain the reasons therefor. The defendants
are disputing that any such change in accordance with law was effected. An
--\...-
order passed by Deputy or Assistant Charity Commissioner is appealable.
E
Yet again, when an amendment is made in the entry in the register, the same
would be final and conclusive. Even a power exists for holding a further
inquiry.
·- Section 31 bars a suit to enforce a right on behalf of a public trust.
C.N.I. got itself registered as a public trust in the year 1981. A suit evidently F
was filed by the plaintiffs in the year 1980 because C.N.I. was not then
entitled to file a suit. It may be true that the suit was filed under Order l,
Rule 8 of the Code of Civil Procedure but therein the qllestion as to whether
the Appellant herein, being a registered trust became entitled to the properties
of Brethren Church could not have been gone into. What is prohibited is to
enforce a right on behalf of a public trust. When the plaintiffs intended to G
~ enforce a right on behalf of the Appellant, the suit was evidently not
maintainable.
~
Furthermore, the purported resolutions of the churches affiliated to the
Brethren Church and merger thereof with the Appellant, having regard to the
H
1070 SUPREME COURT REPORTS
A provisions of the Act was required to be done in consonance with the
[2005) 3 S.C.R.
-
provisions thereof. It is not necessary for us to consider as to whether such
dissolution of the churches and merger thereof in the Appellant·would amount
to alienation of immovable property but we only intend to point out that even
such alienation is prohibited in law. The control and management of the
B religious trusts vests in the Charity Commissioner. The trustees of the Trust
are statutorily enjoined with a duty to render all cooperation to the Charity r
Commissioner. The directions issued by the Charity Commissioner to the
trustees are binding. Dissolution of a trust, it is not disputed, is a matter
which falls within the exclusive jurisdiction of the Charity Commissioner.
c grantedPrayer (a) in the plaint is for a declaration. Such declaration cannot be
by a civil court as regard succession of the District Church of Brethren -4111
as the same was a religious trust registered under the BPT Act.
~
Prayer (b) of the plaint also could not have been granted, as the question >--
as to whether the applicant is the legal continuation and suci:essor of the First >--
I
D District Church of Brethren is a matter which would fall for exclusive "
determination of Charity Commissioner keeping in view the provisions of the
deed of trust as regard its succession. It would necessarily follow that whether ti
the First Appellant became a legal successor of the properties held by the (
First District Church of Brethren could not also have been granted. The
decis~on and resolution purported to have been adopted by the' Synod and
-1-
~
E Gujarat Diocesan Council are binding on all churches or not would again be
a question which could have been gone into by the Charity Commissioner as
the same had direct bearing not only with the administration and management
of the Church registered with it but also related to the properties held by it.
_,.-
Such a decision of the Charity Commissioner is again final and conclusive
,----
F subject to the decision of the appellate authority, viz., Bombay Revenue
~-
Tribunal.
,.
~
Grant of prayer (c) for perpetual injunction would also give rise to
adjudication on the question as to whether the Appellant herein had the legal
right to own the properties of -the First District Church of Brethren and
G administer or manage the same althl)ugh at the relevant time it was not ~ ""
registered trust and although no amendment had been effected in the registers )
and books maintained by the Charity Commissioner in terms of Section 17
read with Sections 21 and 22 of the Act.. The plaintiffs with a view to obtain ~
an order of injunction furthermore were required to establish that they could r
file a suit for enforcement of right of the Appellant as a religious trust and
H ,_
'-
CHURCH OF NORTH OF INDIA"· LA VAJIBHAI RATANJIBHAI [S.B. SfNHA, J.) 1071
such a legal right vests either in the plaintiff or in the Appellant herein A
indirectly. Such a prayer, related to the possession of the property, comes
squarely within the purview of the BPT Act. If the question as regard recovery
of possession of the property belonging to a public trust squarely falls within
the purview of Section 50 of the Act, had such application been filed before
the Charity Commissioner he was required to go into the question as to
whether the plaintiffs are persons having interest in the trust and whether a B
consent should be given to them to maintain a suit. Only when, inter alia,
such consent is granted, a suit could have been filed in terms of Section 51
of the Act. In the event of refusal to give consent, the persons interested
could have preferred an appeal.
Yet again the question as regard existence of a trust is a matter which
c
squarely falls within the purview of Section 79 of the Act.
We have no doubt in our mind that the Charity Commissioner was
imp leaded as a party at a later stage of the suit only with a view to fulfill the
requirements of Sub-section (3) of Section 50 of the Act. D ·
In Virupakshayya Shankarayya v. Neelakanta Shivacharya
Pattadadevaru, (1995] Supp 2 SCC 531, this Court categorically held that
the suit for recovery of possession of property as validly appointed
Mathadhipati is hit by Sections 50 and 51 of the Act. The matter might have
been different if the suit was not for dedaration or injunction in favour or E
against the public trust or where the plaintiffs are not beneficiaries either.
Narmadabai and Anr. v. Trust Shri Panchvati Balaji Mandir and Ors.,
[ 1995] Supp 3 SCC 676 was a case where a suit for injunction was filed for
restraining the defendants from interfering with the implementation of the
scheme for better management and administration of the public trust settled F
by the Charity Commissioner. In that view of the matter, it was held that a
suit was not required to be filed in conformity with the provisions of Sections
50 and 51 of the Act.
In Shree Gollaleshwar Dev and Ors. v. Gangawwa Korn Shantayya G
Math and Ors., (1985] 4 SCC 393], it was held:
"14. It is clear from these provisions that Section 50 of the Act
created and regulated a right to institute a suit by the Charity
Commissioner or by two or more persons interested in the trust,· in
the form of supplementary statutory provisions without defeasance of H
1072 SUPREME COURT REPORTS [2005] 3 S.C.R.
A the right of the manager or a trustee or a shebait of an idol to bring
a suit in the name of idol to recover the property of the trust in the
usual way. There is therefore no reason why the two or more persons
interested in the trust should be deprived of the right to bring a suit
as contemplated by Section 50(ii)(a) of the Act. Although sub-section
(I) of Section 52 makes Sections 92 and 93 of the Code inapplicable
B to public trusts registered under the Act, it has made provision by
Section 50 for institution of such suits by the Charity Commissioner
or by two or more persons interested in the trust and having obtained
the consent in writing of the Charity Commissioner under Section 51
of the Act."
c 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
D 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 ifthe property is not a trust property
in the eye of 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 i.f a trust itself is not valid in law, the authorities under the Act will have
E no jurisdiction to d_et~rmine the said question.
With a view to determine the question as regard exclusion of jurisdiction
of civil court in terms of the provisions of the Act, the court has to consider
what, i!1 substance, and not merely in fonn, is the nature of the claim made
in the suit and the underlying object in seeking the real relief therein. If for
F the purpose of grant of an appeal, the court comes to the conclusion that the
question' ls required to be -· .;termined or dealt with by an authority under the
Act, the j~ris~iction of the ci~il court must be held to have been ousted. The
questions \\hich are required to be determined are within the sole and exclusive
jurisdiction of the authorities whether simple or complicated.· Section 26 of
G 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 reliefs sought for, that civil court has
no jurisdiction, Section 26 per fore~ will have no application whatsoever.
-
H We may at this stage notice the decisions relied upon by the learned
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RATANJIBHAI (S.B. SINHA, J.] l 073
counsel for the parties. A
Jn State of Madras v. Kunnakudi Melamatam and Anr., AIR (l 965) SC
1570 a composite suit for injunction was filed claiming two different reliefs,
viz. (I) an injunction restraining the levy of contributions and audit fees
under Act JI of 1927; and (2) an injunction restraining the levy of contributions
and audit fees under Act XIX of 1951. It was, in that context, held that B
although the decision under Section 84(2) of Madras Hindu Religious
Endowments Act that an institution is outside the purview of the Act, the
demand of contribution as being not enforceable under the 1951 Act was
maintainable.
--- In Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru
Pattabhirami Reddi, AIR (1967) SC 781, this Court was concerned with a
C
question as to what constitutes an administration of religious property. In that
case, the provisions of the Act did not impose a total bar on the maintainability
of a suit in a civil court and having regard to that aspect of the matter vis-
a-vis Section 92 of the Code of Civil Procedure it was held that Section 93 D
of Madras Hindu Religious and Charitable Endowments Act would apply in
the matter for which provision has been made in the Act and would not bar
the suit under the general law which do not fall within the scope of any
section of the Act. This decision instead of helping the Appellant runs counter
to their claim.
E
In Chiranjila/ Shrilal Goenka (Deceased) Through LRs. v. Jasjit Singh
and Ors., (1993) 2 SCC 507 it was held that in matters relating to will the
Probate Court has exclusive jurisdiction. The said decision was rendered
having regard to the fact that the decision of a probate court is a judgment
in rem and conclusive and binds not only the parties but also the entire world. F
In Rajasthan State Road Transport Corporation and Anr. v. Krishna
Kant and Others., (1995) 5 SCC 75, this Court following Dhulabhai (supra)
held that having regard to the provisions contained in the Industrial Disputes
Act and Industrial Employment (Standing Orders) Act, 1946, the civil court
will have no jurisdiction as enumerated in paragraph 35. G
In Sahebgouda (Dead) By LRs. and Ors. v. Ogeppa and Ors., (2003)
,. 6 sec 151 the allegations made in the plaint showed that the only right
claimed by the Appellants was that of being ancestral pujaris of the temple.
They did not claim to be the trustees of any trust. No declaration regarding
the existence or otherwise of the trust or any particular property is the property H
1074 SUPREME COURT REPORTS (2005) 3 S.C.R.
A of such trust had been claimed and in that view of the matter, it was held that
the reliefs so claimed do not come within the purview of Section 19 or
Section 79 of the Act wherefor the Deputy or Assistant Charity Commissioner
will have the exclusive jurisdiction to hold an inquiry and give a decision.
Ramesh Chand Ardawatiwa v. Anil Panjwani, [2003] 7 SCC 350 has
B no application in the present case as therein the Charity Commissioner took
a specific objection that the civil court's jurisdiction is ban:ed whereupon
several additional issues were framed and determined.
In NDMC v. Satish Chand (Deceased) By LR. Ram Chand, [2003] JO
--
SCC 38, this Court clearly held that Sections 84 and 86 of the Punjab Municipal
C Act, 1911 bar the jurisdiction of the civil court as the Act provided a complete
remedy to the party at plea as also a remedy by way of an appeal.
In K. Shamrao and Ors. v. Assistant Charity Commissioner, [2003] 3
SCC 563, this Court held :
D "17 .... Functions of the Assistant Charity Commissioner are
predominantly adjudicatory. The Assistant Charity Commissioner has
almost all the powers which an ordinary civil court has including
power of summoning witnesses, compelling production of documents,
. examining witnesses on oath and coming to a definite conclusion on
E the evidence induced and arguments submitted."
In ·reshwantrao Laxmanrao Ghatge and Anr. v. Bahurao Bala Yadav
(Dead) By LRs. , (1978] I SCC 669, this Court observed :
"8. Mr Datar placed reliance upon the decision of the Bombay High
Court in Dev Chavata v. Ganesh Mahadeo Deshpande in order to
F
take advantage of Section 52-A of the Act. The ratio of the case has
to be appreciated in the background of the facts found therein. The
principles of law as enunciated cannot be fully and squarely applied.
But yet the decision, if we may say so with respect, is correct. This
would be on the footing that the decision given by the Assistant
'G Charity Commissioner under Section 79 read with Section 80 of the
Act was conclusive and final. He had exclusive jurisdiction to decide
the question as to whether the suit land belonged to the trust. He had
""
I
so decided it on November 5, 1954. The suit was filed on July 21,
1955. In that view, the High Court was right in holding that a suit
filed under Section 50 of the Act was not barred under Section 52-
H
CHURCH OF NORTH OF INDIA v. LA VAJIBHAI RATANJIBHAI [S.B. SINHA,J.] l 07 5
A because the decision of the Assistant Charity Commissioner given A
in 1954 had declared the property to be a trust property and which
decision was final."
In Suresh Ramniwas Mantri and Anr. v. Mohd lftequaroddin s/o Mohd
Badroddin, (I 999) 2 Mh.L.J. 131 it was observed that a society although
formed either for religious or charitable purposes or for both cannot be held B
to a public trust ipso facto although registered under the Societies Registration
Act unless it' is registered also under the BPT Act as the question whether
such a trust was validly formed or not would come within the purview of
Sections 18, 19 and 20 of the BPT Act. In that case the plaintiff was not
registered as a public trust and in that situation it was held that Section 80 C
would operate.
In Mahibubi Abdul Aziz and Ors. v. Sayed Abdul Majid and Ors.,
(2001) 2 Mh.L.J. 512], a learned Single Judge of the Bombay High Court
held that a civil suit cannot be entertained only because a complicated questions
of title has been raised. D
In Keki Pestronji Jamadar and Anr. v. Khodadad Merwan Irani and
Ors.. AIR (1973) (Born) 130 the question was as to whether the author of a
trust was the lawful owner of the property of which he has created the trust.
The Full Bench of Bombay High Court held that the author of the trust has
no title over the property and Section 80 would not operate as a bar. E
In Nagar Wachan Mandir, Pandharpur v. Akbaralli Abdulhusen and
Sons and Ors., (1994) I MhLJ 280 a question arose as regard power of a co-
trustee to delegate a matter relating to grant or determination of lease · to
another co-trustee keeping in view of Section 47 of the Act which deprives
the trustee from delegating his office or any of his duties to a co-trustee or F
a stranger unless conditions mentioned therein are complied with.
The principle enunciated in each of the decision laid down relate to the
fact situation obtaining therein. In each case indisputably the lis arose for
determination of a question relating to interpretation of one or the other
clause enumerated in different provisions of the BPT Act which come either G
within the exclusive jurisdiction of the statutory authorities or otherwise. The
Civil Court will have no jurisdiction in relation to a matter whereover the
statutory authorities have the requisite jurisdiction. On the other hand, if a
question arises, which is outside the purview of the Act or in relatiQn to a
matter, ·unconnected with the administration or possession of the trust property, H
1076 SUPREME COURT REPORTS [2005) 3 S.C.R.
A the Civil Court may have jurisdiction. In this case; having regard to the
nature of the lis, the jurisdiction of the Civil Court was clearly barred.
CONCLUSION :
Having given our anxious thought in the matter, we are of the opinion
B that the suit has rightly been held to be not maintainable by the High Court
and, thus, the impugned judgments must be affirmed.
The applications for impleadment filed by various persons, in view of
the aforementioned findings, need not to be dealt with separately.
C For the reasons aforementioned, we do not find any merit in this appeal
which is dismissed accordingly. No costs.
B.B.B. Appeal dismissed.
I
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