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Judgment
Anand Vasant Nirgude, J.—At the request of learned counsel for the parties, I took up this appeal for final hearing. I have perused record and proceedings as also substantial questions of law previously framed by my learned Brother. However, after hearing submissions at the bar and on perusal of record, I came to a conclusion that following substantial questions of law would decide the second appeal. According to me, following are the substantial questions of law :--
"(1) Whether the Courts below erred in rejecting the evidence on registration of two Trust Deeds?
(2) If the answer to question No. (1) is in affirmation, whether the Trust is a Public Trust?
(3) What properties belong to the Public Trust?
(4) What more is required to be done in respect of proper management of the Public Trust?"
Heard learned counsel for the parties at length on the above substantial questions of law.
The facts of this case are as under :
"One Rukhminidevi/bai Goenka was owner of several properties situated at Akola Her son was a renowned politician and a Member of Legislative Assembly. Appellant Madhusudan is nephew of Rukhminidevi. On 27th February 1979 apparently, Rukhminibai executed a Trust Deed in presence of witnesses and the same was even registered with Sub-Registrar, Akola. This document apparently created an impression that Rukhminidevi intended to create a Trust for the purpose of establishing a meditation centre with Bhajan Aashram (religious prayer centre). She dedicated her property at Akola which was Nazul Plot No. 6, Sheet No. 53 and residential house constructed thereon to the Trust. She transferred this property to the Trust. She became the sole Trustee. Despite of this document, no further action was taken for converting the residential bungalow into a Bhajan Aashram and/or Meditation Centre for quite some time. In 1986 Rukhminibai apparently gifted four plots viz. 14, 35, 39 and 43 out of sheet No. 53 of Akola to her family members. On 23.10.1986, Rukhminidevi executed one more Trust Deed. She transferred Plot Nos. 14, 18, 35, 39 and 43 to the previously created Trust."
In 1989 appellant Madhusudan moved an application for registration of Public Trust. He contended that the trust Deed referred to above created not only a Trust, but it is a Public Trust having number of properties. Since the properties were not situated within the local limits of the Assistant Charity Commissioner, Mumbai, the matter was relegated to the Assistant Charity Commissioner, Akola.
It is at this stage, the respondents opposed the registration. They took up a stand that Rukhminibai never intended to create a Trust or execute the Trust Deeds, referred to above. They also suggested that Madhusudan manipulated and fraudulently obtained signatures of Rukhminidevi for ''creating'' these documents.
Soon thereafter in 1994 even Rukhminibai filed a suit in Akola Court seeking declaration that Trust Deeds are fraudulent etc. Unfortunately, the suit of 1994 filed in Akola Court came to an end, for the Court held that the plaint deserved to be rejected under the provisions of Order VII, rule 11 of the Code of Civil Procedure. Rukhminidevi filed appeal against such order, but during the pendency of this appeal, she died.
While this was going on in Civil Court, the litigation before Assistant Charity Commissioner, Akola was also contested quite vigorously. Madhusudan tried to prove that Trust Deeds were executed by Rukhminidevi. He even cited Rukhminidevi as his witness, but could not examine her for obvious reasons. He examined witnesses to the documents and proved the documents. On the other hand, respondents also brought on record the fact that Plot Nos. 14, 35, 39 and 43 of Sheet No. 53 of Akola were not available to Rukhminidevi in 1986 when the second Trust Deed was executed. As said above, application seeking registration of the trust was dismissed mainly because the court below held that Rukhminidevi did not intend to create the trust. Even the subsequent Authorities confirmed that finding.
Following paragraphs from the judgment of Assistant Charity Commissioner would throw clear light on the thought process and the reasons assigned by the Assistant Charity Commissioner for holding that the two transactions in which two Trust Deeds were executed, were suspicious and not intended by the settler :
"16. The non-applicants further contended that when the documents are relied by the applicant and admitted this Rukhminidevi Goenka was illiterate and Pardansingh lady, she was of advanced age, she was widow and hence there is protection available to her and in respect of the transaction of such lady the suspicious circumstances regarding the transactions are required to be removed by the person claiming execution of the documents. On this point the objectors rely on a judgment reported in Sri Kishore Ray Thakur Bije Vs. Smt. Basanti Kumar Das and Others, AIR 1994 Ori 113 , wherein it is held the Rule evolved for the protection of Pardansingh Lady in relation of execution document should not be confused with other doctrine such as fraud, duress and actual undue influence which applied to all persons whether they be Pardansingh lady or not. This being the position of the law if the plaintiff alleges fraud then plaintiff must establish the same but if plaintiff is an illiterate or Pardansingh Lady and alleges fraud and failed to establish fraud yet the defendant must establish the fact that the plaintiff executed the document after the document was readover and explained to her and after she understood the contents thereof. This protection which law efforts to a Pardansingh and illiterate lady must be borne in mind by the court. So also regarding suspicious circumstances there is also judgment of our High court reported in Gopalkrishna Govind and Another Vs. Tukaram Narayan and Others, AIR 1956 Bom 566 wherein it is held that putting of thumb impression by the executant who knows signing and using different pen while signing the attesting witness is the suspicious circumstances and it is further held that the burden does not shift on the plaintiffs until it is explained by the defence why her thumb impression was taken on the document". The N.A.''s specifically stated the suspicious circumstances as under :
(a) The possession of the property was never handedover to the trust even after the date of trust deed or supplementary trust deed.
(b) The name of the trust was not recorded in the record of right as owner even after the execution of both the documents.
(c) No efforts were made by anybody to make payment of taxes on the property which was subject matter of both the documents.
(d) Rukhminidevi during her lifetime handed over possession which is the subject matter of document by different documents to her son and present objector''s.
(e) No efforts were made by Rukhminidevi to make application for registration of the trust.
(f) Shri Madhusudan Zunzunwala had tried to get the trust registered at Bombay by filing application for registration knowing fully that application does not lie before the Assistant Charity Commissioner, Bombay.
(g) The application u/s. 18 came to be filed after a period of more than ten years as against the prescribed period of three months provided u/s. 18 of the Bombay Public Trust Act, 1950.
(h) No proceedings of the trust were written at any time and in fact proceeding book is not maintained and even accounts are not maintained which is admitted by Madhusudan in his cross-examination.
(I) Application is filed without consent and knowledge of any of the person including Rukhminidevi and other alleged trustees.
(J) Rukhminidevi filed a suit against applicant Madhusudan Zunzunwala bearing R.C.S. No. 163/94 on 11.3.94 and she alleged in the said suit that a fraud is played on her by the applicant Madhusudan Zunzunwala. She also stated that she never executed document of trust deed or supplementary trust deed.
(k) One of the property which was subject matter of supplementary trust deed was sold by objector Ashutosh Goenka to Sandeep Motels Pvt. Ltd. on which purchaser constructed a Hotel. There was no objection from anybody including the applicant. The bungalow which was in dilapidated condition collapsed and no efforts were made to look after the said property.
(L) Applicant Madhusudan Zunzunwala never tried to bring Rukhminidevi before this authority in support of his application for registration of the trust.
(M) On another plot the subject matter of supplementary trust-deed very big construction of school building is completed.
(N) Madhusudan Zunzunwala also did not take any steps for registration of the trust by filing application u/s. 18 at Akola. On the contrary, he tried to create a document showing that the head office of the trust is shifted to Bombay at his personal office.
(O) Rukhminidevi Goenka was not noticed or summoned in this proceeding. It is not proved that she had knowledge of application Exh.1.
(P) Other trustees are also not coming in this proceeding to support a claim and contentions of the applicant.
(Q) Shri Madhusudan Zunzunwala did not remain present before this court during the lifetime of Rukhminidevi since the year 1993 till the death of Rukhminidevi Goenka and has prolonged the matter. He filed number of applications for adjournments and also filed number of applications for examination of the witnesses on commission even before his evidence was started.
(R) The alleged consent letters at Exh. 2 is also not proved. It is in English language. It cannot be treated as consent letters of any of the trustees including Rukhminidevi Goenka. The applicant says in his evidence that he is unable to state as to whether Exh. 2 is original or xerox copy.
(S) One of the trustees Smt. Taramati Jain opposed the application.
(T) Rukhminidevi Goenka was permanent r/o akola and she was holding extensive property at Akola and she was having only son viz. Jamanlalji Goenka.
(U) She was residing with her son and his family till her death.
(V) The property which is the subject matter of Exh. 90 and not explained by applicant as to how the same came in his possession. No efforts are made by the applicant to protect the possession of the property which is subject matter of his proceeding or for taking back the possession from the non-applicants.
(W) Her son Jamanlalji Goenka was Advocate and he was member of Legislative Assembly of State of Maharashtra, for two terms and was also a Minister of State of Maharashtra. He was also a great social worker and he formed and established several social and charitable organizations and Cooperative Banks and hospitals.
(X) Rukhminidevi had her advocates at Akola for looking after her civil and taxation matters.
(Y) The relations of Rukhminidevi with his son Jamanlalji Goenka and his family including the objectors i.e. Subodh and Ashutosh were cordial. She used to take help of her son and grand sons when needed.
(Z) There was no reason for Rukhminidevi to go to Amravati for the purpose of drafting a document like trust-deed or supplementary trust-deed.
(aa) Nursinghdasji Agrawal Advocate and Dole Advocate were strangers to Rukhminidevi.
(bb) Nursinghdasji Agrawal was the Advocate of the applicant Shri Madhusudan Zunzunwala from the time of his ancestors.
(cc) Rukhminidevi was brought in a separate care by Madhusudan Zunzunwala from Amravati to Akola for the purposes of creating document and no chance was given to her meet any person from her family at Akola. There was no reason to scribe the document in English language.
(dd) There was no reason that Nursinghdasji Agrawal, Dole Advocate and Madhusudan Zunzunwala should come to Akola only for the purpose of attesting the trust-deed.
(ee) There was no reason for Narsinghdasji Agrawal-Adv and Shri Madhusudan Zunzunwala to bring the Rukhminidevi in a car and without taking her to her residential house brought her directly to the office of Sub-Registrar, Akola and thereafter did not show the courtesy to reach her at her house at Akola.
(ff) Rukhminidevi never expressed her desire of creating any trust and execution of trust deed for such purpose.
(gg) The applicant has not complied with the conditions of the provisions in the trust-deed and supplementary trust-deed.
(hh) As per condition 13-B it is provided that the first meeting of Board of Trustees is to be convened by Rukhminidevi within three months failing which she shall ceased to be managing trustee. Admittedly no such meeting was called at any time. Such condition cannot be laid down by any common person.
(ii) The documents were never read over to Rukhminidevi or translated the same in the language known to her so that she should understand the contents of document.
(jj) Witness Krushnarao Gole stated at Akola and Amravati the documents are scribed in Marathi then the question arises as to why the documents Exh. 90 and Exh. C-1 was scribed in English language.
(kk) The provisions in trust-deed Exh. 90 and Exh. C-1 are unnatural and contrary to each other.
(LL) The applicant has not complied with the conditions of the provisions in trust-deed and supplementary trust-deed.
(MM) As per the terms of Exh. 90 Clause-20, it is necessary to maintain a minute book, however, admittedly no such minute book is maintained.
(NN) As per Cl. 11 of Exh. 90 no person is entitled to act as a trustee under this scheme until he/she signs the minute book of the trust. So also declaration of the trustee of acceptance and willingness to act as a trustee under the scheme of the trust is required to be executed. Admittedly Madhusudan Zunzunwala or any other trustee had not signed the minute book of the trust. Nor any declaration is executed in terms of Cl. 11. Hence, Madhusudan Zunzunwala is not entitled to act as a trustee, much less a managing trustee of the trust.
(oo) The applicant by fabricating and preparing Ex. C-1 supplementary trust deed dated 23.10.86 had tried to change the terms of original trust deed, particularly regarding the managing trustee.
(pp) It is important to note that Rukhminidevi never resigned or removed from the post of managing trustee then how by execution of Exh. C-1 Madhusudan could be appointed as a managing trustee.
(qq) As per Cl. 7 (i) of Exh. 90 at least one of the person from the family of Rukhminidevi shall be trustee of the trust. However, when alleged new trustees were taken by supplementary trust deed Ex. C1 this clause was deleted. All these facts also shows that Madhusudan Zunzunwala has created false document."
The reasons mentioned above are certainly cogent. They certainly create doubt about the documents in question. But, in my view, these circumstances narrated above are not sufficient to dislodge presumption of the documents which were registered Deeds. When the respondents came up with a case that the documents were registered and yet the settler never intended to create the trust, the entire burden shifted on them to prove that the documents were fraudulent. Such fraud is required to be proved convincingly by adducing best possible and available evidence. Obviously, Rukhminidevi was the only witness who could have stated about the fraudulent nature of the transaction. In 1993 Rukhminidevi received notice from the Assistant Charity Commissioner, Akola in respect of proceedings and yet she did not come before the said Authority to state whatever she wanted to say. Instead, in 1994 she filed the suit which she could not pursue fully. Rukhminidebi died in 1996, but before her death, she could have certainly opposed the application in clear terms stating that she had no occasion to create the trust and did not execute the trust Deeds. In absence of her deposition, the circumstances quoted above would not dislodge the presumption otherwise created by the registered documents. In my view, registered documents are not to be brushed aside lightly and on the basis of suspicion.
Learned Assistant Charity Commissioner erred in holding in paragraph 16 that burden to prove the transaction was on the applicant and not on the objectors. In the facts and circumstances of this case, the burden to prove fraud was squarely on the respondents who objected to registration of Trust. One of the respondents could have been Rukhminidevi herself. She herself had filed civil suit for declaration that she did not create trust. In such litigation she was under obligation to prove that she had no intention to create Trust and the Trust Deeds were fraud on her. In view of this, even before the Assistant Charity Commissioner, it was for her to prove her case of fraud. The circumstances that no action was taken after 1979 for starting activities of the trust would only indicate that the Trustees were not diligent. Had these Trust Deeds been brought to the notice of the Charity Commissioner in 1979 and had he come to a conclusion that the documents created a Public Trust, he would have certainly suo-moto taken corrective steps and would have directed trustees on this Trust to start religious or charitable activities. So, the circumstances narrated in the judgment would not go to the root of the case. The circumstances mentioned in the above quoted paragraph of the judgment of the Assistant Charity Commissioner that Rukhminibai had sufficient assistance from her illustrious son and yet she depended on appellant Madhusudan is also not sufficient to hold that documents were not executed by her. Much is said about appellant Madhusudan''s intention. No doubt, some of the acts on his part were rather dubious. He could not have filed application for registration of the Trust at Mumbai. He was trying to avoid opposition. Ultimately, he was compelled to come to the Assistant Charity Commissioner at Akola where he pursued the case. At that stage, as stated above, it was for Rukhminidevi to approach the Assistant Charity Commissioner and expose the fraudulent nature of the transactions. If this was not done, I am afraid, the Trust Deeds are proved documents and the respondents cannot avoid the same.
In order to find out whether the Trust is a Public Trust, one must look into the definition of "public trust" in Section 2 (13) and Section 9 of the Bombay Public Trusts Act, 1950. These provisions read as under:
"(13) "public trust" means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860."
"9. Charitable Purposes
(1) For the purposes of this Act, a charitable purpose includes-
(1) relief of poverty or distress;
(2) education;
(3) medical relief;
(3A) provision for facilities for recreation or other leisure time occupation (including assistance for such provision), if the facilities are provided in the interest of social welfare and public benefit, and
(4) the advancement of any other object of general public utility, but does not include a purpose which relates--
(a)....
(b) exclusively to religious teaching or worship.
(2) The requirement of this section that the facilities are provided in the interest of social welfare shall not be treated as satisfied, unless--
(a) the facilities are provided with the object of improving the conditions of life for the persons for whom the facilities are primarily intended; and
(b) either--
(i) those persons have need of such facilities as aforesaid by reason of their youth, age, infirmity or disablement, poverty or social and economic circumstances, or
(ii) the facilities are to be available to the members of the public at large.
(3) Subject to the said requirement, sub-section (1) of this section applies in particular to the provision of facilities at village halls, community centres and womens'' institutes, and to the provision and maintenance of grounds and buildings to be used for purposes of recreation and leisure time occupation, and extends to the provision of facilities for those purposes by the organising of any such activity."
On perusal of the Trust Deeds, it becomes clear that Rukhminibai intended to utilize her main property which was a residential house into a place where public at large would be allowed to meditate and offer prayers. She made it clear in these Deeds that all the activities of the trustees of such Trust would be monitored through the provisions of the Bombay Public Trusts Act. The aims and objects clearly prove that this was intended to be a "public trust" as defined in Section 2 (13) and Section 9 of the Act.
The respondents clearly stated in their deposition that Plots No. 14,35, 39 and 43 were already gifted by Rukhminibai to her family members. It is also stated that they are in possession of such properties. In my view, the evidence on record would sufficiently indicate that these plots were not available to Rukhminibai in 1986 when she executed a second Trust Deed. Learned counsel for the appellant asserted that respondents have not proved the gift deed and, therefore Courts could not come to a conclusion that these properties were not available in 1986. I am afraid, this submission is rather myopic. When a Trust is said to be registered as Public Trust and if certain properties are mentioned as trust properties, burden is on the applicant to prove that the properties belong to the Public Trust and the trustees have clear title to such properties. On the face of it, Plots No. 14, 35, 39 and 43 were already gifted through registered documents in 1980. Had the Assistant Charity Commissioner perused register of Sub-Registrar, he to would have avoided to include these plots as properties of the public trust. He could not have come to a conclusion that whatever is stated in the Trust Deed is truthful and should be accepted. On the face of it, Plots No. 19, 35, 39 and 43 were not available and were not liable to be included as trust properties.
I am told at the bar that though the Trust Deeds were executed in 1979 and 1986, no steps are taken for propagating the objects of the Trust. Creation and registration of such Public Trust is in public interest. Valuable properties situated at Akola town are sought to be used for the benefit of public at large. Activities like meditation and prayers would take place. Such activities are not only religious, but are spiritual too. The Assistant Charity Commissioner should now register the Public Trust as indicated above, within three months from today as record the properties indicated above as Trust properties. He should take steps for restoration of possession of Trust properties, namely, Plot No. 6 and Plot No. 18, Sheet No. 53 situated at Akola to the Trustees. While drafting the Scheme, if any, the Assistant Charity Commissioner may include one of the family members of Rukhminidevi as trustee. I hope, the parties would forget the bitterness which is created due to this litigation and dedicate their time for activities of the Public Trust.
Learned counsel for the respondents suggested that the Trust Deeds could not have been registered in the light of the provisions of Section 230A of the Income Tax Act, 1961 as it prevailed then. I am afraid, such an objection cannot be entertained at this belated stage. Such objection was not taken earlier. The intention behind the provisions of Sections 230 and 230A of the I.T. Act seems to be to avoid transfer of property without payment of income-tax by the transferer. Such is not the case here, for it has come in evidence, that Rukhminibai was a regular tax payer and that then it was no one''s case that she created Trust to avoid payment of income-tax dues.
The second objection of learned counsel for respondents is that application under Section 18 of the Bombay Public Trusts Act, 1950 was belatedly made and, therefore, the same ought to have been rejected. I am afraid, this submission is incorrect and would go against the spirit and object of the Bombay Public Trusts Act. When a public trust is created, it is the duty of the Authority to see that such trusts is registered. The properties of such trusts are enumerated in the register maintained by the Charity Commissioner. So, by no stretch of imagination, delay in making application would defeat such application. Section 66 of the BPT Act provides penal consequences for delay in making application. I am not inclined to utilize these provisions for penalizing the appellant/ applicant.
In the result, impugned judgments and orders are quashed and set aside. Second Appeal is partly allowed in terms of observations made herein above. Parties to bear their own costs.