VIRUPAKSHAYYA SHANKARAYYAversusNEELAKANTA SHIVACHARYA PATIADADEVARU

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A                   VIRUPAKSHA YYA SHANKARA YYA
                                         V;

           NEELAKANTA SHIVACHARYA PATIADADEVARU

                                MARCH 21, 19'5

B               [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

          Bombay Public Trust Act, 1950-Sections 50 and SJ-Recovery of trust
    from person not holding adversely-Whether maintainable.

          Evidence Act, 1872-Section 42-Whether an earlier Judgment in
C seperate proceeding relevant for detennining status of a person.
          The respondent·plaintilT ftled a suit for possession of the math (a
    public trust) at Jamkhandi claiming himself to be the validly installed
    Padadayya of the math. He challenged the validity of installation of defen·
D   dant Nos. 1 and 2 as Padadayya. He further challenged the installation of
    one S as Padadayya who had .nominated defendant No. 1 as Padadayya.

           In an earlier proceedi_.g initiated by ~ the installation of S as
   . Padadayya was challenged. The Privy Council (High Court of Bombay
     being so designated by the erstwhile Rules) bad held that S bad been
E '·validly installed as Padadayya as he bad been nominated before bis
     marriage. The plaintitT was not a party to the said proceedings.

          The High Court held that the installation of S as well as the appel·
    lant was vitiated. Hence the prese°'t appeal.

F         Allowing the appeal, this Court

          HELD: 1. The Privy Council having held in an earlier proceeding
    that Shivalingayya was duly nominated and installed as Padadayya inas-
    much as he had been so nominated by Shankarayya before his marriage,
G   which Is the only ground on which Shivalingayya's nomination has been
    held to be vitiated in the present proceedings by the High Court; the
    contrary conclusion arrived at in the present proceedings in favour of
    plaintiff does not deserve to be confirmed. [824·F·G)

          2. The Judgment of Privy Council, even though the same did not bind
H tht plai~tift' on the prlnCiple of res~Juditata, was dtfinitely a relevant
                                       820
          V.SHANKARAYYAv. N.S.PATIADADEVARU[HANSARIA,J.]                       821

     circumstance to be taken notice of because of what has been stated in A
     Section 42 of the Evidence Act. There is no denial that the foundation of
     the case of Anadanayya was the infirmity in the nomination and the
     installation of Shivalingayya as Padadayya; and it is precisely this which
     the Privy Council had not accepted. [825-B-A)

           3. If the present suit has to be regarded as one for possession of suit   B
     property simpliciter, as is the prayer in the plaint, it would be hit by
     Section 50 read with 51 of the Bombay Public Trust Act, 1950. [825-F)

            4. Clause (ii) of Section 50 does not visualise suit for recovery of
     possession only from a person holding adversely to the public trust, as it      c
     has clearly stated about recovery of possession "from any person". This
     would include a person who may not claim adversely to the public trust,
     as is the case of defendant No. 1 in this case. [824-DJ

          Gollaleshwar Dev v. Gangawwa Korn Shantayya Math, [1985) Supp.
     3 SCR 646, distingushed.                                            D
            5. If the present suit be taken as a suit for declaration, then it was
     hopelessly barred, because the declaration sought is that the plaintiff had
     become Padadayya after Virupakshayya-1 had died in 1903. As the suit was
     filed in 1954 it was apparently much beyond time. [822-G)
                                                                                     E
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1769 of
     1975.

          From the Judgment and Order dated 6.10.75 of the Karnataka High
     Court in R.S.A. No. 1302 of 1971.
                                                                                     F
             S.S. Javali, Ms. Anu Mehale and Ranjit Singh for the Appellant.

             S.B. Wad, Ms. J. Wad and Ms. Usha Reddy for the Respondent.

             The Judgment of the Court was delivered by
                                                                                     G
•>         HANSARIA, J. The respondent-plaintiff has placed himself within
     two horns of a bull and it is not possible for him to avoid strike by one or
     the other. And the bull is no ordinary one, as it has the backing and the
     blessdigs of no less powerful a body than J>rivy Council of Jamkhandi State,
     within whose territorial jurisdiction the suit property was situate, for the    H
    822                   SUPREME COURT REPORTS                  [1995) 2 S.C.R.

A recovery of which the respondent made his claim by fiing the present suit
    on 4.2.1954. It is a pity that despite the case of the appellant- defendant
    having received support from the Privy Council, he came to lose on the
    same point, to start with, at the hand of Civil Judge. The High Court, which
    ultimately upheld the view of the Civil Judge, should not have allowed this
B   piquant situation to prevail.

         2. The broad facts of the case at hand consist in filing of the present
  suit by respondent No. 1 in 1954, seeking possession of the suit property,
  as validly appointed Padadayya (Mathadhipati) of the math at J amkhandi.
  The plaintiff claimed this property on the assertion that he had been duly
C installed as Padadayya on 30.1.1944, as a successor to Virupakshayya I, who
  had died as early as 1903. According to him, defendent Nos. 1 and 2 had
                                                                                   ---....._
                                                                                      ,
  not been duly installed as Padadayyas; so also, one Shivalingayya, who
  according to defendant No. 1 had been installed as Padadayya in 1935 and
  had in turn nominated him as Padadayya in 1943. There is no dispute at
D all between the parties that if Shivalingayya had been validly nominated
  and installed as Padadayya, the plaintiff cannot succeed. And it is precisely
  this aspect of the case which had come to be decided in favour of Shivalin-
  gayya by the Privy Council in an earier litigation began by one Andanayya
  in 1934, to which, of .course, the present plaintiff was not a party, but,
  according to him, it was the aforesaid Andanayya who had installed him as
E Pa.dadayya on 30.1.1944.                        ..

         3. Now, If the present suit has to be regarded as one for possession
  of suit property simpliciter, as is the prayer in the plaint, it would be hit
  by Section 50 read with 51 of the Bombay Public Trusts Act, 1950 (the
F Act). To save this blow by the bull, Shri Wad, appearing for the respondent
  No. 1, first urged that the suit was really not for possession simpliciter but
  was for declaration of the status of the plaintiff as Padadayya and pr~yp,r
  for possession may be treated as consequential relief. But, if the present
  be taken as a suit for declaration, then it was hopelessly barred, because
  the declaration sought is that the plaintiff had become Padadayya after
G Virupakshayya I had died in 1903. As the suit was filed in 1954 it was
  apparently much beyond the time. Faced with this situation, Shri Wad's
  effort was to conVince us that the suit is not hit by Sections 50 and 51 of          \.-
  the Act.

H         4. Let it be seen whether this contention can be accepted. Section 50
     V.SHANKARAYYAv. N.S.PATIADADEVARU[HANSARIA,J.)                       823

of the Act deals with suits relating with public trusts. The relevant part of A
this section reads as under:

        "In any case - .

        (i)     xxx    xxx        xxx
                                                                                 B
        (ii) where a declaration is necessary that that a particular property
        is a propety belonging to a public trust or where a direction is
        required to recover the possession of such property or the property
        or proceeds thereof from any person including a person holding
        adversely to the public trust.
                                                                                 c
        (iii)    xxx       xxx         xxx
        The Charity Commissioner or two or more persons having ob~
        tained the consent in writing of the Charity Commissioner as
        provided in Section 51 may institute a suit ........to obtain a decree   D
        for any of the following reliefs:

        (a) an order for the recovery of the possession of such property
        or proceeds thereof,

                                 xxx         xxx   xxx
                                                                                 E
        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 a provision thereof.

                                 xxx         xxx   xxx
                                                                                 F
                                                            (Emphasis ours)

      Section 51 deals with giving of consent by the Charity Commissiooner
for the institution of suit.

      5. Shri Wad contends that clause (ii) applies only when recovery of        G
possession is sought from person holding it adversely to the public trust,
which is not the case at hand. This contention is sought to be advanced on
the basis of what waS held by this Court in Gollaleshwar Dev v. Gangawwa
Kom Shantayya Math, (1985) Suppl. 3 SCR 646, in which case the view
taken by a Full Bench of the. Mysore High Court in case of the aforesaid         H
    824.                   SUPREME COURT REPORTS                    [1995] 2 S.C.R.

A parties as reported in AIR 1972 Mysore 1 was D:Pt approved.
           6. The contention is mis-conceived, because in the aforesaid case this
    Court was called upon to decide whether two or more trustees of a public
    trust (the math at hand is also a public trust), could file suit for possession
    of property belonging to public trust from a person holding it adversely to
B   the trust. The Mysore High Court took the view that the expression "a
    person having interest", of which mention has been made in Section 51(1),
    did not include the trustees, because of the definition of this expression in
    Section 2(10) of the Act. This Court, however, did not endorse the view of
    the Full Bench by observing that__!he definition in Section 2(10) was an
C   inclusive one and there was no lawful justification to exclude trustees from        ~
    the same. As in that case the suit was filed to recover possession from a               r
    person holding adversely to the trust, about which also mention has been
    made in clause (ii) of Section 50, it does not follow that clause (ii) visualises
    suit for recovery of possession only from a person holding adversely to the
D   public trust, as it has clearly stated about recovery of possession "from any
    person". According to us, this would include a person who may not claim
    adversely to the public trust, as is the case of defendant No. 1 in this case.

         7. It is because of this factual and legal position that we-have stated
  that the plaintiff is within two horns of the bull. If to take care of the
                                                                                            -
E restriction imposed by Section 50 read with 51 of the Act, the nature of
 _the suit is sought to be changed to be one of declaration with consequential
  relief of possession, it would be hit by limitation.

         8. The above apart, what is more material is that the Privy Council
F having held in an earlier proceeding that Shivalingayya was duly nominated .              \   -
  and installed as Padadayya inasmuch as he had been so nominated by
  Shankarayya before his marriage, which is the only ground on which
  Shivalingayya's nomination has been held to be vitiated in the present
  proceedings by the High Court, we are of the firm view that the contrary
  conclusion arrived at in the present proceedings in favour of plaintiff does
G not deserve to be confirmed. It may be that principle of res judicata has
  no application, despite what has been stated in Explanation VI of Section
  11 C.P.C., inasmuch as in the earlier proceeding the present plaintiff was
  not a party and Andanayya (the plaintiff therein) had not claimed posses-
  sion of the property as Padadayya but as Charanti contending that as the
H office of Padadayya was lying vacant because of invalidity in the nomination
     I
 r

             V.SHANK.ARAYYAv. N.S. PATIADADEVARU [HANSARIA,J.)                 825

         and the installation of Shivalingayya, he had stepped into shoes of A
         Padadayya. There is, however, no denial that the foundation of the case of
         Andanayya was the infirmity in the nomm~tion and the installation of
         Shivalingayya as Padadayya; and it is precisely this which the Privy Council
         had net accepted.

               9. In the aforesaid premises, the judgment of the Privy Council, even B
         though the same did not bind the plaintiff on the principle of res judicata,
         was definitely a relevant circumstance to be takne note of, because ofwhat
         has been stated in Section 42 of the Evidence Act. What we, however, find
         is that the High Court had only referred to the earlier decision without
         examining the question as to whether law permitted a contrary view to be C

---      taken on the self same issue. According to us, the issue having been finally
         determined at the hipest level, the same could not have been re-examined,
         which exercise, to start with, was undertaken even by a Civil Judge.      ·

                10. Shri Wad contends that even the defendants did not take such a
         stand throughout the litigation, which is apparent from the fact that they D
         tried to establish their case de novo by leading fresh evidence. Though this
         is so, we are of the view that the defendants were wrongly advj.sed and we

--       have to set right the dent caused to the decision of the Privy Council. The
         only way available to us in this proceeding to do so is to restore the view
         that taken by that high powered Committee.                                   E
               11. We hold that the plaintiff could not have taken stand in the
         present proceeding that Shivalingayya's nomination and installation as
         Padadayya was invalid, which would render his entire exercise ~tile and
         one akin to shadow boxing. It may also be stated that his suit was either
         barred by limitation or was hit by the provisions contained in Section 50    F
         read with 51 of the Act.

               12. We, therefore, allow the appeal, set aside the impugned judgment
         of the High Court, with the result that the suit filed by respondent No. 1
         stands dismissed; In the facts and circumstances of the case, we make no     G
         order as to costs.

         B.K.M.                                                   Appeal allowed.