SAINATH MANDIR TRUSTversusVIJAYA & ORS.

               [2010] 15 (ADDL.) S.C.R. 275


                 SAINATH MANDIR TRUST                             A
                               v.
                       VIJAYA & ORS.
              (Civil Appeal No. 3030 of 2004)
                   DECEMBER 13, 2010
                                                                  B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

     Trust and Charities:

      Bombay Public Trusts Act, 1950 - ss. 50, 51, 19, 20, 79     c
and 80 - Disputes relating to property of trusts - Permission
of Charity Commissioner to institute the suit - Original owner
dedicating plot in favour of idol by virtue of gift deed - Trustee
of temple taking possession of the property - After eight
years, original owner executing sale deed for consideration
                                                                   0
of Rs. 17, 5001- in respect of the same property, in favour of
purchaser - Suit for possession of property and claim of Rs.
 17,5001- as damages by purchaser - Suit for possession
dismissed, however, decreed to the extent of damages to be
paid by original owner to purchaser, with future interest- Order
passed by trial court set aside by first appellate court as also E
High Court - On appeal, held: Purchaser of the property was
not in possession of the property - They published notice
inviting objections before purchasing property - Possession
of-the property was delivered to the trust, thus, it is obligatory
for the purchaser to seek permission from the Charity F
Commissioner u/ss. 50 and 51 before instituting a civil suit -
Also it was incumbent upon the original owner to seek
permission from Charity Commissioner before executing a
sale deed - Gift being a dedication of idol, transfer in favour
of trust was valid transfer and did not require registration - G
Thus, suit for possession barred in terms of ss. 19, 20, 79 and
80 - Order of High Court is set aside and that of trial court is
restored with modification to the extent that trust would pay the

                             275                                  H
    276    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A purchaser Rs. 17, 5001- without interest - Transfer of Property
  Act, 1882 - s. 123 - Registration - Deeds and documents.

       In the year 1974, respondent No. 8 dedicated certain
  property to the idol of Saibaba by way of a gift deed. The
  possession was handed over to the appellant-temple
8
  trust, registered under the Bombay Public Trusts Act
  1950, for building a residential accommodation for
  devotees of the temple run by the appellant-temple trust.
  In the year 1982, the predecessor of respondent Nos. 1
  to 7 intended to purchase the said property and
C published notice in the newspaper, inviting objections
  before the purchase of the property. Thereafter, they
  purchased the property from respondent No. 8 by a
  registered sale deed for a consideration of Rs. 17,000/-
  and took possession of the property; and subsequently
D sent a notice to the appellant-trust to vacate the property
  but the appellant-trust refused to vacate stating that they
  were the owners of the property.

      The predecessor of respondent Nos. 1 to 7 then filed
E a suit for possession and claimed Rs. 17 ,500/- as
  damages against the appellant-temple trust. The trial
  court dismissed the suit as regards the recovery of the
  possession of the property. However, the suit was
  decreed to the extent of damages of Rs. 17 ,500/- to be
  paid to the respondent Nos. 1 to 7 by respondent No. 8
F with future interest. The first appellate court set aside the
  order passed by the trial court. The High Court upheld
  the order passed by the first appellate court. Therefore,
  the appellant-temple trust filed the instant appeal.

G         Allowing the appeal, the Court

      HELD: 1.1. It is evident from the record that it was the
  case of the plaintiff/respondent that they were not in
  possession of the plot in question. The finding recorded
H by the trial court which was not interfered either by the
     SAINATH MANDIR TRUST v. VIJAYA & ORS.               277


first appellate court or the High Court was that the plaintiff/ A
respondent was not in possession of the suit property
in spite of the sale deed dated 14.10.1982 and the
possession of the suit property was never delivered to
the plaintiff or their legal heirs, respondent Nos. 1 to 7. It
can logically be inferred that for this very reason the B
plaintiff/respondent published a notice in a daily
newspaper inviting objections before purchasing the
property as in the normal circumstance, if a sale deed is
executed by a private party holding title to the suit
property in favour of another private party, the question c
of publishing a notice in the newspaper does not arise ·
since the transaction of sale between two private parties
do not normally require issuance of a notice in the
newspaper inviting objections. [Para 12) [289-C-G]

     1.2. When the disputed plot had already been               D
dedicated in favour of the idol by virtue of a deed of gift,
of which the appellant is a trustee, and the same was
acted upon, as possession also was delivered to the
appellant trust, it was surely necessary for respondent
Nos. 1 to 7-purchaser of the suit land and also incumbent       E
upon respondent No. 8-vendor of the sale deed to seek
permission from the Charity Commissioner under
Sections 50 and 51 of the Bombay Public Trusts Act, 1950
before a sale deed could be executed in regard to the
disputed plot and more so before a civil suit could be          F
instituted. Therefore, the dedication of the plot for
charitable purpose in the nature of gift having been acted
upon as a result of which the possession was also
delivered to the appellant-trust, the civil suit filed by the
predecessor of contesting respondent Nos. 1-7 for               G
possession was expressly barred in terms of Sections 19,
20, 79 and 80 of the Act. [Para 13) [290-A-D]

    1.3. The gift deed was an unregistered instrument and
no title could pass on the basis of the same under
                                                                H
    278   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A Section 123 of the Transfer of Property Act, 1882.
  However, when the document is in the nature of a
  dedication of immovable property to God, the same does
  not require registration as it constitutes a religious trust
  and is exempted from registration. [Para 14] [290-E-F]
B
      Narasimhaswami vs. Venkatalingam and Ors. AIR 1927
  Mad. 636;Bhupati Nath vs. Basantakumari AIR 1936 Cal.
  556; Chief Controlling Revenue Authority vs. Sarjubai AIR
  1944 Nag. 33; Pallayya vs. Ramavadhanulu 13 M.L.J. 364
C - referred to.

       1.4. Even if no final opinion is expressed that the
  deed of gift executed in favour of the appellant-trust
  having not been registered, did not confer any title on the
  appellant-trust, it is not possible to brush aside the
D contention that the respondent Nos.1 to 7-purchaser of
  the plot were legally bound by Section 51 of the Act to
  obtain consent of Charity Commissioner before
  institution of the suit against the appellant which was
  admittedly in possession of the property after the gift
E deed was executed in its favour by the respondent No.8.
  Section 51 further envisages the right of appeal by the
  affected party if the Charity Commissioner refuses his
  consent to the institution of the suit. Prior to this, Section
  50 (ii) already envisages that where a direction or decree is
F required to recover the possession of or to follow a property
  belonging or alleged to be belonging to a public trust, a suit
  by or against or relating to public trust or trustees or other
  although may be filed, consent under Section 51 of the
  Charity Commissioner is clearly required under Section 51
G of the Act. [Paras 15 and 16] [292-E-F; 293-B-D]

        1.5. The respondent-purchaser of plot went to the
    extent of publishing a notice in a local daily inviting
    objections indicating that he intended to purchase a suit
    land, but he conveniently ignored the provisions of
H
    SAINATH MANDIR TRUST v. v'UAYA & ORS.                279 ·

Section 51 of the Act and refused to apply to the Charity        A
Commissioner before instituting c:~ suit against the
appellant-trust even though the poss1ession of the plot
was delivered to the appellant-trust .wa}r back in the year
1974 and after more than eight years, the respondent
No.8-vendor executed a sale deed in favour of the                B
predecessor of respondent Nos.1 h~ 7. Although the
relevance of Section 51 of the Act is cle1arly apparent and
the appellant also raised it before the High Court, the
Single Judge of the High Court did not e~·en address the
important iss.ue having a legal bearing on \the right of the     c
appellant to retain the plot, which, although in the form
of a deed of gift, was practically in the nature of
dedication to the appellant-~rust for Urn charitable
purpose of constructing a 'Bhakt Niwas' for the devotees
of Saibaba. In view of the possession of th1~ property by
                                                                 0
the appellant-trust, it was obligatory on th1':l part of the
purchasers of the plot to seek permissk~n from the
Charity Commissioner under Section 51 of 1the Act, to
recover the property by filing a suit or initiating a
proceeding. (Paras 17 and 18) (293-D-H; 294-.A\-E]
                                                                 E
   K. · Shamrao and Ors. vs. Assistant               Charity
Commissioner (2003) 3SCC 563 - referred to.

     1.6 Section 79 (1) of the Act lays down that any
question, whether or not a trust exists and such \~rust is       F
a public trust or particular property is the property of such
trust, is required to be decided under its statutory .force
by the Deputy or Assistant Charity Commissione'r as
provided under the Act and Section 80 bars jurisdic.~tion
of the civil court to decide or deal with any question           G
which is by or under the Act to be decided or dealt with
by any officer or authority under the Act. Thus, when the
appellant-trust was in occupation and possession of the
property, then the respondent-plaintiff clearly could not
have approached the civil court ignoring the specific            H
    280 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A provision under th1a Bombay Public Trusts Act, 1950
  which laid down t'i1e ·provisions to deal with disputes
  relating to the property of the trusts. It was the statutory
  requirement of th 1a Act to approach the Charity
  Commissioner bf:fore a suit could b~ instituted. [Paras 18
B and 19] [294-F-H; 2.95-A-C]

       1.7 The judgment and order of the High Court as also
  the first appellat:e court is set aside and the judgment al'!d
  order of the tri:al court dismissing the suit filed by the
  plaintiff-respon1dents No.1 to 7 is restored. The trial court,
C however, had decreed the suit for return of the money of
  Rs.17,500/- to the predecessor of respondents No.1 to 7
  and had also directed the respondent No.8 to pay interest
  on the said amount. The respondent No.8 had already
  been divested of his title to execute a sale deed in favour
D of respondent Nos.1 to 7 as he had already executed a
  deed of gift in favour of the appellant-trust for charitable
  purpose. In the interest of equity, respondent No.8 should
  not be saddled with the financial liability to return the
  amount o1f Rs.17,500/- with interest to the respondent
E Nos.1-7. The amount, in the interest of equity and fair
  play, should be paid by the appellant-trust to the
  respondent Nos.1-7 on behalf of respondent No.8, since
  the said part of the decree which was passed by the trial
  court in favour of respondent Nos. 1-7 was not
F challenged by way of an appeal by respondent No.8. But
  since the appellant-trust is the rightful owner of the
  disputed plot and the respondent No.8 as a consequence
  was divested of the property, the amount paid by the
  predecessor of respondent Nos.1-7, should be refunded
G to respondent Nos.1-7 without interest and, thus, the
  decree of the trial court i!;: modified to the said extent.
   [Para 20) [295-0-H; 296-A-B]
                        Case Law Reference:

H       AIR 1927 Mad. 636        Referred to.         Para 14
     SAINATH MANDIR TRUST v. VIJAYA & ORS.                    281


    AIR 1936 Cal. 556           Referred to.           Para 14        A

    AIR 1944 Nag. 33            Referred to.           Para 14

    13 M.L.J. 364               Referred to.           Para 14
    (2003) 3 sec 563            Referred to.           Para 1'8       B
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3030 of 2004.

    From the Judgment & Order dated 27.3.2003 of the High
Court of Judicature at Bombay, bench at Nagpur in Second              c
Appeal No. 246 of 1990.

    U.U. Lalit, Anil Kadu, Satyajit A. Desai, Anangha S. Desai,
Venkateswara Rao Anumolu for the Appellant.

     Shivaji M. Jadhav for the Respondent.                            D

     The Judgment of the Court was delivered by

     GYAN SUDHA MISRA, J. 1. This appeal by special leave
has been filed against the Judgment and Order dated
27.03.2003 passed by the High Court of Judicature at Bombay,          E
Bench at Nagpur, in Second Appeal No. 246 of 1990 whereby
the appeal was dismissed on merit. Consequently, the judgment
of reversal passed by the Additional District Judge, Amaravati
allowing the appeal and setting aside the judgment and order
of the Trial Court which had dismissed the suit of the plaintiff/     F
respondent, was upheld.

     2. The origin of this appeal at the instance of the defendant/
appellant herein emanates from a Regular Civil Suit No. 166
of 1983 which had been filed by the deceased plaintiff-Shri           G
Vitthal Motiramji Mandale who is now represented by his legal
heirs Respondent Nos. 1-7, for possession and damages
valued at Rs. 17,500/- in the Court of Civil Judge Senior
Division, Amaravati, against the appellant - Sainath Mandir
Trust which is a registered public trust within the provisions of     H
    282    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A Bombay Public Trusts Act 1950. The suit land comprises of a
  plot bearing No. 57, arising out of original fields bearing Survey
  No. 33, situated at Saturana in the outskirts of Amravati
  Township. As per the case of the defendant/appellant herein,
  which admittedly is a public trust, the suit property was
B dedicated to the idol of Saibaba by the respondent No. 8 I
  original defendant No.2 by way of a gift deed executed way back
  on 31.1.197 4 which according to the appellant's version, was
  immediately acted upon as possession was also handed over
  to the appellant-trust which is in occupation of the suit property
c till date. It is the specific case of the defendant/appellant that
  the suit plot was donated by way of a gift deed executed by
  the original defendant No.2 /respondent No. 8 herein Shri
  Vasant Mahadeo Fartode on 31.1.1974 essentially for building
  a residential accommodation for devotees of the Saibaba
0 Mandir run by the appellant-trust. Thus, by virtue of the gift deed,
  the admitted owner respondent No. 8 I original defendant No.
  2 Shri Vasant Mahadeo Fartode was divested of the title over
  the suit property after he executed the gift deed and also
  delivered possession of the plot to the appellant-trust. Hence,
E as per the case of the appellant Sainath Mandir Trust, the gift
  deed dated 31.1.1974 was duly acted upon since the appellant
  immediately came in possession of the suit property and
  continues to remain in possession of the same till date ever
  since 1974.

F      3. As against the aforesaid case of the appellant, the
  predecessor of the contesting respondent Nos. 1-7, late Shri
  Vitthal Motiramji Mandale who is now legally represented by the
  respondent Nos. 1-7, intended to purchase the suit property and
  therefore issued a notice in daily "Matrbhumi" dated 2.10.1982
G thereby inviting objections in respect of the said plot. Further,
  case of the respondent Nos. 1 to 7 is that no objections were
  received in response to the notice as a result of which the
  predecessor of respondent Nos. 1 to 7 i.e. late Shri Vitthal
  Motiramji Mandale purchased the plot from the respondent No.
H
     SAINATH MANDIR TRUST v. VIJAVA & ORS.                       283
            [GYAN SUDHA MISRA, J.]
8-Shri Vasant Mahadeo Fartode by a registered sale deed                  A
dated 14.10.1982 for a consideration of Rs. 17,000/-. As per
the plaintiff/respondent's case, they also claimed to have
immediately taken possession of the said property after
execution of the sale deed and it is further averred that when
the contesting respondents wanted to put fence around the said           B
plot, then on 4.12.1982 they noticed a board on the disputed
plot which was put up by the appellant-trust on which it was
mentioned that the respondent No. 8/defendant No.2 had given
the said plot to the appellant-trust for construction of a residential
accommodation for the devotees of Saibaba Mandir. In view                c
of this notice, the respondents sent a notice on 7.12.1982 to
the appellant-trust to remove the board and further do not
obstruct to the fencing of the suit plot which was responded by
the appellant-trust stating that they are in possession of the suit
plots since 31.1.1974 and are owners of the plot in question
                                                                         0
and cannot be directed to vacate.

      4. The respondent felt seriously aggrieved with this
response and hence a Regular Civil Suit No. 166 of 1983 was
filed by the predecessor of the contesting respondent Nos. 1
to 7 - Shri Vitthal Motiramji Mandale for possession and                 E
damages valued at Rs. 17,500/- in the Court of Civil Judge,
Senior Division, Amaravati. The appellant-trust contested the
suit by filing a written statement on 19.12.1983 asserting their
ownership and possession over the suit property since
31.1.1974. It was stated thE;!rein-that the suit land had already        F
been gifted to the appellant-trust by gift deed dated 31.1.1974
which was properly executed and validly attested and had also
been acted upon by the parties concerned. It was, therefore,
submitted therein that by virtue of the gift deed respondent No.
8/defendant No. 2 had no subsisting title or ownership as                G
regards the suit property and as such he was not entitled to
subsequently execute any sale deed in respect of the suit
property.

     5. The learned llnd Joint Civil Judge, Junior Division,
                                                                         H
    284    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   Amravati who tried the suit was finally pleased to dismiss the
    suit and denied the relief regarding the recovery of possession
    of the said plot. However, the suit was decreed to the extent of
    damages of Rs. 17 ,500/- to be paid to the respondent/original
  · plaintiff by the respondent No. 8/original defendant No.2 within
B 30 days alongwith the costs of the suit. It was further directed
    that the respondent No. 8/original defendant No.2 shall pay
    future interest on the principal amount of Rs. 17,000/- from the
    date of filing of the suit till its full realization at the rate of Rs.
    10/- per cent per annum to the predecessor of respondent Nos.
C 1 to 7 herein as it was held that respondent No. 8 could not
    execute the sale deed in favour of a third party i.e. the
    predecessor of respondent Nos. 1 to 7 herein as he had
    already executed a gift deed in favour of the appellant way back
    on 31.1.1974 which was acted upon as a result of which the
    appellant-trust was already in possession of the suit land. Thus,
0
    the Trial Court was pleased to dismiss the respondent/ original
    plaintiffs claim in so far as the recovery of possession of the
    suit plot is concerned.

        6. The predecessor of the plaintiff/respondent Nos. 1 to 7
E assailed the judgment and order of the Trial Court before the
  Court of learned District Judge, Amaravati and the appellant-
  trust also filed cross-objections challenging the findings of the
  trial court in so far as the validity of the gift deed executed in
  favour of the appellant was concerned. It had been submitted
F therein that the gift dated 31.1.197 4 was for a price below Rs.
  100 and it was in favour of the deity and as such was
  admissible; hence the Trial Court committed an error in holding
  that the gift deed was not valid. The appellant therein had also
  contended that the gift deed conferred a legal and valid title
G coupled with possession in favour of the appellant-trust and
  hence the subsequent documents of sale deed claimed to have
  been executed in favour of the plaintiff/contesting respondents
  ought not to have been ignored as the vendor Shri Vitthal
  Motiramji Mandale was not left with any title concerning the suit
H property. It was further pointed out from various circumstances
      SAINATH MANDIR TRUST v. VIJAYA & ORS.                   285
             [GYAN SUDHA MISRA, J.]

  and evidence brought on record, that a fraudulent collusion       A
  exited between the original plaintiff and the defendant Nos.1
  and 2 i.e. vendor and the vendee and the alleged sale deed
  did not confer any title to the vendee since the vendor had
  already executed a gift deed in favour of the appellant-trust
. almost 8 years prior to execution of the gift deed which was       B
  acted upon and possession was delivered to the appellant-
  trust. However, the First Appellate Court being the Court of
  Additional District Judge, Amaravati was pleased to allow the
  appeal of the plaintiff/respondents and rejected the cross-
  objections filed by the appellant-trust.                          c
      7. Being aggrieved by the Judgment and Order dated
 4.5.1990 passed by the Additional District Judge, Amaravati,
 the appellant-trust was constrained to prefer a Second Appeal
 No. 246 of 1990 before the High Court of Judicature at
 Bombay, Nagpur Bench, Nagpur wherein the substantial D
 questions of law, inter alia, was raised that the civil suit filed
 by the plaintiff/respondent was expressly barred in terms of the
 provisions of Sections 19, 20, 79 and 80 of the Bombay Public
 Trusts Act 1950. The substantial question of law was further
 raised whether the gift deed dated 31.1.1974 being an Act of E
 "Dedication" of the suit property by the respondent No. 8 to the
 deity which is not a "living person" would not be ''Dedication"
 of property in terms of Section 123 of the Transfer of Property
 Act and hence whether the provisions of the same are not
 applicable to the deed of gift which had been executed in F
 favour of the deity. Substantial question was also raised
 whether the suit could be entertained without permission of the
 Charity Commissioner under Sections 50 and 51 of the
 Bombay Public Trusts Act 1950 which had not been obtained
 by the original plaintiff prior to filing of the suit. The gift deed G
 dated 31.1.1974 having been acted upon in pursuance of which
 the appellant-trust came in possession of the said property
 since 31.1.1974 and continues to be in possession till date,
 could not have been ordered to be restored in favour of the
 plaintiff/respondent predecessor as the sale deed dated H
    286   SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A 14.10.1982 which was subsequently executed by the vendor,
  could not confer any right and title to the respondent I purchaser
  as the plot in question had already been dedicated to the idol
  of which the appellant is the trust.

B      8. The learned single Judge of the High Court of Bombay
  at Nagpur Bench, Nagpur, however, was pleased to dismiss
  the appeal as it was held that Section 123 of the Transfer of
  Property Act lays down the procedure in which the property can
  be transferred by way of a gift and it is necessary that the said
  document should have been registered and it should have been
C signed by the d.onor attested by two witnesses. It was held that
  none of the requirements have been complied and, therefore,
  the appeal against the judgment and order of the Additional
  District Judge, Amaravati was not fit to be entertained.
  Consequently the appeal stood dismissed against which this
D appeal by special leave has been filed by the appellant -Sainath
  Mandir Trust and the special leave having been granted in
  favour of the appellant, this appeal has come up before us for
  hearing and its adjudication.

E      9. In so far as the contention of the plaintiff/respondent in
  support of the Judgment and Order of the High Court as also
  First Appellate Court is concerned, the arguments advanced
  before the Courts below have been reiterated which was
  accepted by the High Court which held that the gift deed
F executed in favour of the deity of which the appellant is a trustee,
  conferred no right and title in favour of the deity and therefore
  the donor had every right to execute subsequently a sale deed
  in favour of the predecessor of the contesting respondents in
  view of which the suit filed by the predecessor of contesting
  respondent Nos. 1 to 7 was rightly decreed in their favour by
G the First Appellate Court being the Court of Additional District
  Judge which was upheld by the High Court.

      10. Learned counsel for the contesting defendant/the
  appellant-trust on its part submitted at the threshold that the gift
H deed which was executed in favour of the deity clearly reveals
     SAINATH MANDIR TRUST v. VIJAYA & ORS.                    287
            [GYAN SUDHA MISRA, J.]
that the same is a "Dedication" to an idol and not a "living A
person" by the respondent No. 8/original defendant No. 2 and
thus the same can be said to be a valid transfer in terms of
Section 123 of the Transfer of Property Act. Elaborating on this
aspect, it was submitted that the idea, intention and the feelings
of the donor behind the gift deed has not been taken into B
consideration and going by the nomenclature of the document,
if the intention of the donor is appropriately construed from the
words of the gift deed, the same will clearly and unambiguously
suggest that the defendant No.2-Vasant Fartode who was a
devotee of Saibaba had dedicated the said property to the idol C
for the construction of 'Bhakta Niwas'. This issue was
specifically raised in the cross-appeal filed before the District
Judge and was reiterated in the Second Appeal. The gift in
question was a 'dedication to the idol' and hence the same was
a valid transfer in favour of the appellant-trust and, therefore, D
there was no question of any registration of the same, since
the gift deed was executed on 31.1.1974 and was clearly acted
 upon as possession was also handed over to the appellant-
trust. The finding of the Trial Court would clearly demonstrate
that the appellant was in possession of the said property in
 question and the same is an undisputed position. The very fact E
 that the suit for possession was required to be filed by the
 respondent/original plaintiff further substantiates the fact that the
 gift deed was acted upon and possession was delivered to the
 appellant-trust.
                                                                       F
       11. Supplementing the aforesaid arguments, it was still
 further contended that in view of the "dedication" of the property
 to the idol of which the appellant is a trustee, any suit for
 possession against such property could not have been filed
 without the requisite permission of the Charity Commissioner G
 under Sections 50 and 51 of the Bombay Public Trusts Act
 1950. A mere perusal of Section 50 Sub-Section (2) of the
 Bombay Public Trusts Act specifically indicates that "where a
 direction or decree is required to recover the possession or to
 follow property belonging 'or alleged' to be belonging to a public H
    288   SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A trust" and a dispute arises in regard to the same, permission
  of the Charity Commissioner was clearly a necessary legal
  requirement. Hence, it was submitted that as the appellant-trust
  is in possession of the plot in question and the relief of
  possession was sought by plaintiff/respondent, the requisite
B permission under Sections 50 and 51 became mandatory
  before filing such a suit, failing which the suit ought to have been
  rendered as not maintainable. The requirement or necessity of
  such a permission is the basic requirement at the very threshold
  and it is impermissible for the Court to enter into the merits of
c the matter vis-a-vis the validity of the transfer etc. in such a suit
  which does not comply with the basic requirement of obtaining
  such a permission. Hence, it was contended that First Appellate
  Court as also the High Court have clearly erred in going into
  the issues of title and validity of the transfer which are only
  subsequent issues which would arise only if the suit qualified
0
  the test of Sections 50 and 51 of the Act. The Courts below
  also failed to take into consideration that the suit was bad for
  non-joinder of necessary parties in terms of Order XXXI Rule
  2 of C.P .C. as all the trustees of the Trust were not joined as
  parties and hence the Trial Court was clearly justified in
E dismissing the suit as not maintainable for want of necessary
  permission of the Charity Commissioner under Sections 50 and
  51 of the Act as well as non-joinder of all the trustees in terms
  of Order XXXI Rule 2 of the C.P.C. It was also submitted that
  the appellant-trust has been in uninterrupted possession of the
F suit land since 31.1.1974 and the suit property in question had
  already been included and recorded by the Charity
  Commissioner as a property of the trust and the Change
  Report to that effect was required in terms of Section 22 of the
   Bombay Public Trusts Act. It was finally submitted that the
G property in question was gifted for a pious purpose of
  construction of 'Bhakta Niwas' and, therefore, considering the
  aforesaid factors and the comparative hardships to the parties,
  the suit for possession is not only fit to be dismissed on the
  ground of its maintainability but even on the merits of the matter.
     SAINATH MANDIR TRUST v. VIJAYA & ORS.                     289
            [GYAN S~DHA MISRA, J.]
      12. Having heard the counsel for the parties and                 A
considering the merits of the arguments advanced by learned
counsel for the contesting parties, it is evident from the record
that the plaintiff/respondent first of all intended to purchase the
suit property in the year 1982 and, therefore, published a notice
in the daily "Matrbhumi" dated 2.10.1982 whereby objections            B
were invited in respect of the said plot. It is the case of the
contesting respondent Nos. 1 to 7 that since no objections were
received, the original plaintiff - Shri Vitthal Motiramji Mandale
purchased it from the respondent No. 8/original defendant
No.2 by registered sale deed dated 14.10.1982 for a                    C
consideration of Rs. 17,000/- but even as per the case of the
contesting respondent No. 7, the appellant-trust resisted their
action in taking physical possession of the suit land as they
were restrained from putting up fence on the land in question
which prompted them to immediately take action and they were
                                                                       0
compelled to file a suit for possession. Thus, even as per their
own case, the plaintiff/respondent was not in possession of the
plot in question. In addition to this, the finding recorded by the
Trial Court which has not been interfered either by the First
Appellate Court or the High Court, the plaintiff/respondent was
 not in possession of the suit property in spite of the sale deed      E
dated 14.10.1982 and the possession of the suit property was
never delivered to the plaintiff predecessor or their legal heirs
i.e. respondent Nos. 1 to 7. It can logically be inferred that it is
for this very reason that the plaintiff/respondent had published
a notice in a daily newspaper "Matrbhumi" inviting objections          F
before purchasing the property as in the normal circumstance,
if a sale deed is executed by a private party holding title to the
suit property in favour of another private party, the question of
publishing a notice in the newspaper does not arise since the
transaction of sale between two private parties do not normally        G
require issuance of a notice in the newspaper inviting
objections.

     13. Under the aforesaid background, the contention of
learned counsel for the appellant that permission should have
                                                                       H
    290    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A   been obtained from the Charity Commissioner under Sections
    50 and 51 of the Bombay Public Trusts Act assumes
    significance and its legal implication cannot be overlooked.
    When the disputed plot had already been dedicated in favour
    of the idol by virtue of a deed of gift, of which the app.ellant is a
B   trustee and the same was acted upon as possession also was
    delivered to the appellant trust, it was surely necessary for the
    plaintiff/respondent Nos. 1 to 7/purchaser of the suit land and
    also incumbent upon respondent No. 8 /vendor of the sale deed
    to seek permission from the Charity Commissioner before a
c   sale deed could be executed in regard to the disputed plot and
    more so before a civil suit could be instituted. We, therefore,
    find substance in the contention of learned counsel for the
    appellant, that the dedication dated 31.1.1974 of the plot for
    charitable purpose in the nature of gift having been acted upon
    as a result of which the possession also was delivered to the
0
    appellant-trust, the civil suit filed by the predecessor of
    contesting respondent Nos. 1-7 for possession was expressly
    barred in terms of Sections 19, 20, 79 and 80 of the Bombay
    Public Trusts Act 1950.

E      14. It is no doubt true that the gift deed was an unregistered
  instrument and no title could pass on the basis of the same
  under Section 123 of the Transfer of Property Act. However,
  when the document is in the nature of a dedication of
  immovable property to God, the same does not require
F registration as it constitutes a religious trust and is exempt from
  registration. We have taken note of a Full Bench decision of
  the Madras High Court reported in AIR 1927 Mad. 636 in the
  case of Narasimhaswami vs. Venkatalingam and others,
  wherein it was held that Section 123 of the Transfer of Property
G Act does not apply to such a case for "God" is not a "living
  person" and so the transaction is not a "transfer" as defined by
  Sec.5 of the Transfer of Property Act. Thus, a gift to an idol may
  be oral and it may be effected also by an unregistered
  instrument. But a different view has been taken in the case of
H Bhupati Nath vs. Basantakumari, AIR 1936 Cal. 556; Chief
     SAINATH MANDIR TRUST v. VIJAYA & ORS.                    291
            [GYAN SUDHA MISRA, J.]
Controlling Revenue Authority vs. Sarjubai, AIR 1944 Nag.             A
33. In the Full Bench decision of the Madras High Court in the
matter of Narasimhaswami (supra), it had been argued that a
gift to idol of lands worth over Rs.100 requires registration and
that a mere recital in the deed of gift which had been made,
would not pass property. But it had been held by the Full Bench       B
that dedication of property to God by a Hindu does not require
any document and that property can be validly dedicated
without any registered instrument. In the aforesaid case, the
deed of gift was not to a specified idol but to the Almighty Sri
Kodanda Ramachandra Moorti. Dealing with this matter, the             C
Full Bench took note of the observation in the matter of
Pal/ayya vs. Ramavadhanulu, reported in 13 M.L.J. 364
wherein it was held by Benson and Bhashyam Aiyangar, JJ.
that a declaration of trust in relation to immovable property for
a public religious purpose is not governed by the Indian Trusts
                                                                      0
Act which by S. 1 declares it inapplicable to religious trusts. It
was also held that S. 123 of the Transfer of Property Act has
no application to dedication of land to the public as the section
only applied to cases when the donee is an ascertained or
ascertainable person by whom or on whose behalf a gift can
be accepted or refused. Taking notice of several authorities, it      E
was held that no document was necessary for the dedication
of property to charity. The Full Bench recorded as follows: "We
have not been referred to any case where it has been held that
an oral gift for a religious purpose requires registration. In this
connection, I may point out that S. 123 of the Transfer of            F
Property Act only applies to transfer by one living person to
another". S. 5 of the Act runs as follows: "In the following
sections, 'transfer of property' means an act by which a living
person conveys property, in present or in future, to one or more
other living persons, or to himself and one or more other living      G
persons and 'to transfer property' is to perform such act. The
learned Judges noted that a gift to God which in the said case
was Sri Kodanda Ramachandra Moorti cannot be held to be
a gift to a living person. It had been argued in the said matter
that an idol in law is recognised to be a juristic person capable     H
    292    SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A   of holding property and it must be held that a gift to an idol is a
    gift to a living person. But it was held therein that the Almighty
    by no stretch of imagination, legal or otherwise, can be said
    that the Almighty is a living person within the meaning of the
    Transfer of Property Act. The learned Judges of the Full Bench
B   saw no reason to differ from the Madras case cited in that matter
    where the law had been settled for several years as it was
    observed that the principle of 'stare decisis' should be applied
    unless there are strong reasons to the contrary as otherwise it
    would unsettle many titles. Concurring with this view, Chief
c   Justice Reilly held that if the gift is not intended to a living
    person within the meaning of S. 5 of the Transfer of Property
    Act, the document would not require registration. This judgment
    surely has a persuasive value to the issue with which we are
    confronted in the instant matter and tilts the scale of justice in
    favour of the appellant-trust as the plot was essentially
0
    dedicated to Sai Baba for a charitable purpose, although the
    same was in the form of an unregistered deed of gift.

          15. But even if we were to accept the contentious issue
    or leave it open and express no final opinion that the deed of
E   gift executed in favour of the appellant-trust having not been
    registered, did not confer any title on the appellant-trust, it is
    not possible to brush aside the contention that the respondent
    Nos.1 to 7-purchaser of the plot in question were legally bound
    by Section 51 of the Bombay Public Trusts Act 1950 to obtain
F   consent of Charity Commissioner before institution of the suit
    against the appellant which was admittedly in possession of the
    property after the gift deed was executed in its favour by the
    respondent No.8. It would be relevant to quote Section 51 at
    this stage which lays down as follows:
G                51 (1) : "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 Charity Commissioner in writing
          for his consent. If the Charity Commissioner after hearing
          the parties and making such enquiries (if any) as he thinks
H
     SAINATH MANDIR TRUST v. VIJAYA & ORS.                      293
            [GYAN SUDHA MISRA, J.]
     fit is specified that there is a prima facie case, he may          A
     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 refus~I."                          B

      16. Section 51 further envisages right of appeal by the
affected party if the Charity Commissioner refuses his consent
to the institution of the suit. Prior to this Section 50 (ii) already
envisages that where a' direction or decree is required to
recover the possession of or to follow a property belonging             C
or alleged to be belonging to a public trust, a suit by or against
or relating to public trust or trustees or other although may be
filed, consent under Section 51 of the Charity Commissioner
is clearly required under Section 51 of the Act of 1950 which
is quoted hereinbefore.                                                 D
     17. It is difficult to overlook that the decree holder/
respondent herein although had gone to the extent of publishing
a notice in a local daily "Matrbhumi" inviting objections
indicating that he intended to purchase a suit land, he                 E
conveniently ignored the provisions of Section 51 of the
Bombay Public Trusts Act, 1950 and refused to apply to the
Charity Commissioner before instituting a suit against the
appellant-trust especially when the possession of the plot was
delivered to the appellant-trust way back in the year 1974 but
after more than eight years, the vendor/respondent No.8                 F
executed a sale deed in favour of the predecessor of
respondent Nos.1 to 7. The relevance of Section 51 of the
Bombay Trusts Act, 1950 although is clearly apparent and the
appellant had also raised it before the High Court, the learned
Single Judge of the High Court has not even addressed this              G
important issue having a legal bearing on the right of the
appellant to retain the plot, which although had been in the form
of a deed of gift, in fact it was practically in the nature of
dedication to the appellant-trust for charitable purpose which
was to construct a 'Bhakt Niwas' for the devotees of Saibaba.           H
    294   SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A        18. Hence, even if it were to be held that the deed of gift
  in favour of the appellant-trust did not confer any title to the
  appellant-trust as the same was not registered and were also
  to be held that the same cannot be treated to be a dedication
  to any idol, as this point was neither pressed hard nor was
B argued threadbare and the Courts below have also not gone
  into this question, we do not wish to enter into this question
  further. However, the fact remains that in view of the possession
  of the property in question of the appellant-trust, it was
  obligatory on the part of the purchasers of the plot in question/
c respondent Nos.1 to 7 to seek permission from the Charity
  Commissioner under Section 51 of the Bombay Trusts Act,
   1950 to recover the property by filing a suit or initiating a
  proceeding. In fact, in the matter of K. Shamrao and others vs.
  Assistant Charity Commissioner reported in (2003) 3 SCC
   563, a two Judge Bench of this Court had been pleased to hold
0
  that the Assistant Charity Commissioner under the scheme of
  the Act of 1950 i.e. Bombay Public Trusts Act, 1950 possesses
   all the attributes of a Court and has almost all the powers which
   an ordinary civil court has including the power of summoning
  witnesses, compelling production of documents, examining
E witnesses on oath and coming to a definite conclusion on the
   evidence induced and arguments submitted.

       Section 79 (1) of the same Act also lays down that any
  question, whether or not a trust exists and such trust is a public
F trust or particular property is the property of such trust, is
  required to be decided under its statutory force by the Deputy
  or Assistant Charity Commissioner as provided under the Act
  and Section 80 bars jurisdiction of the civil court to decide or
  deal with any question which is by or under this Act to be
G decided or dealt with by any officer or authority under this Act.

         19. Thus, when the appellant-trust was in occupation and
    possession of the property in question then the respondent-
    plaintJff clearly could not have approached the civil court
    ignoring the specific provision under the Bombay Public Trusts
H
     SAINATH MANDIR TRUST v. VIJAYA & ORS.                   295
            [GYAN SUDHA MISRA, J.]
Act, 1950 which has laid down provisions to deal with disputes A
relating to the property of the trusts. It also cannot be overlooked
that in the instant case, it is the original owner of the property
i.e. respondent No.8 who had executed a deed of gift in favour
of the appellant-trust and subsequently after ten years, executed
a sale deed in favour of the predecessor of respondent Nos.1 B
to 7, who approached the -ourt for recovery of his property in
which case it could perhaps have been available for the owner
of the property to approach the civil court. But in the case at
hand, it is the purchaser of the.. property predecessor of
Respondent Nos. 1-7. who filed the suit for possession which        c
clearly can be constiued as the suit for recovery of possession
from the appellant-trust which was in possession of the property.
In that view of the matter, it was the statutory requirement of the
Bombay Public Trusts Act, 1950 to approach the Charity
Commissioner before a suit could be instituted.                      D
     20. In view of the aforesaid discussion and in the light of
the reasons assigned hereinbefore, we set aside the judgment
and order of the High Court as also the First Appellate Court
and restore the judgment and order of the Trial Court which had
been pleased to dismiss the suit filed by the plaintiff- E .
respondents No.1 to 7. The Trial Court, however, had decreed
the suit for return of the money of Rs.17,500/- to the
predecessor of respondents No.1 to 7 and also interest was
ordered to be paid on this amount by the vendor-respondent
No.8. Since the respondent No.8 had already been divested F
of his title to execute a sale deed in favour of respondent Nos.1
to 7 as he had already executed a deed of gift in favour of the
appellant-trust for charitable purpose, we are of the view that
in the interest of equity, he should not be saddled with the
financial liability to return the amount of Rs.17,500/- with interest G
to the respondent Nos.1-7. This amount, in our view, in the
interest of equity and fair play should be paid by the appellant-
trust to the respondent Nos.1-7 on behalf of Respondent No.8,
as this part of the decree which had been passed by the Trial
Court in favour of respondent Nos. 1-7 had not been challenged H
    296    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A by way of an appeal by the respondent No.8. But as we have
  held that the appellant-trust is the rightful owner of the disputed
  plot and the Respondent No.8 as a consequence has been held
  to have been divested of the property, the amount paid by the
  predecessor of Respondent Nos.1-7, should be refunded to
B Respondent Nos.1-7 without interest and thus the decree of the
  Trial Court shall be treated as modified to this extent. This
  appeal accordingly is allowed, without any order as to costs.

    N.J.                                           Appeal allowed.