Subbaraya Narayana Bhat vs Govind Ganapathi and Another

Sabhahit J.-M.F.A No. 170/77 is by the unsuccessful applicants for being appointed as trustees, whereas M.F.A. No. 282 of 1977 is by the trustees that existed before the fresh applications for appointment of trustees were made.

The brief facts leading up to the present appeals are these:

There is a public trust called the temple of Sri Venkataraman Dev at Manjaguni in U.K. District. There were five trustees to the temple and one Ganapati Suryanarayan Bhat died and thereupon applications were made to the District Judge under S. 47 of the Bombay public Trusts Act for appointing them as trustees and the learned District Judge appointed one Govind Gapanapatrao Gokhale as the 5th trustee. Aggrieved by the said order, the previous existing trustees came up in appeal before this Court in M.F.A. No. 16 of 1973 and this Court allowed the appeal and remitted the matter back to the learned District Judge with direction thus:

"To ascertain, after taking additional evidence, what should be the minimum number of the trustees for the temple and whether the number of surviving trustees after the death of Ganapati Suryanarayan Bhat fell short of such minimum number and thereafter decide whether any of the petitioners in the these applications should be appointed as trustees of the temple in place of Ganapati Suryanarayan Bhat."

After remand the learned District Judge, no doubt raised as point No. 1 as to what is the minimum number of trustees of the temple? The learned District Judge, after recording additional evidence, came to the conclusion that since Exts. P-6, 7 and 8 the Record of the Rights from 1960 on-wards show that there were five trustees to the temple, the minimum number of trustees were 5 and in that view he proceeded to appoint Govind Ganapatirao Gokhale as the fifth trustee. Aggrieved by the said judgment and order, the present appeals are instituted before this court.

This Court in the direction given in the earlier judgment has specifically enjoined on the District Judge to ascertain and decide as what is the minimum number of trustees, for the temple. The learned District Judge, therefore, should have first decided that point. While deciding that point he should have taken into consideration the statutory provisions in that behalf contained in S. 47 (2) of the Bombay Public Trust Act as it then existed. It reads:

"No such application shall be entertained-

(a) unless the trustee who on account of any of the reasons mentioned in clauses (a) to (b) of sub-section (1) is not fit or available to administer the trust is the sole trustee or unless by the vacation of office by one or more trustees on account of any of the said reasons the minimum number of trustees required by the instrument, scheme, order or decree of the Court or usage or custom of the trust for the administration of the trust is reduced."

Thus, it becomes obvious that the minimum of trustees spoken of is the minimum required by the instrument, scheme or order or decree of the, Court or usage or custom of the trust for the administration of the Trust. Unless the existing number is less than the minimum required, the District Judge will have no jurisdiction to appoint a new trustee.

The learned District Judge, therefore, should have looked into the applications of persons who applied for being appointed as trustees. It is clearly averred in the application given by Govind Ganapatrao Gokhale and others thus:

"In ancient days there used to be a large body of trustees drawn from different parts of the Sirsi Taluk and the present four persons is both a small number and also are unsuitable and unfit for being entrusted with the funds of the Trust."

Thus, so far as the aspect of minimum number of trustees is concerned, it is specifically averred that from ancient days there used to be a large body of trustees drawn from different parts of the Sirsi Taluk. It was this aspect of the matter which the applicants have to prove before the learned District Judge and the learned District Judge was called upon to decide the number of minimum trustees on the basis of usage or custom pleaded in the application, for they have not pleaded the minimum number under any instrument, scheme or order or decree of the Court. In fact, while answering the contents of the applications, the existing trustees have averred in para 11 of the objection statement thus:

"It is not correct to state that there used to be a large body of trustees to the temple in question. At no time the temple had more than five trustees."

Thus, it becomes clear that in the pleadings usage is resorted to. Whereas the applicants seeking for appointment as trustees have averred that there used to be a large number of trustees from various parts of Sirsi Taluk, the existing trustees have specifically denied the same and have averred that at no time more than five trustees existed even according to usage. So the simple point that arose for consideration before the learned District Judge was: what was the minimum number of trustees for the temple according to usage? The learned District Judge, however, instead of deciding that point as arising from the pleadings has looked into the record of rights to find out that at one time there were five trustees to the temple. In fact, that is obvious because, even before the death of Ganapathi Subraya Bhat there were five trustees. That was not the point for decision before him. The point for decision before him was; What was the minimum number of trustees required to administer the temple. The section says the number of trustees should not be less than the minimum number of trustees required by instrument, scheme, order or decree of the Court or usage or custom. The learned Distist Judge has nowhere decided as to the minimum number of trustees though there was such direction given by this Court.

He has further gone to the extent of observing, it may be unmindfully, that he has no reason to differ from the judgment given by his predecessor though this Court specifically set aside the judgment, be that as it may.

In the result, the impugned judgment and order passed by the District Judge do not stand our scrutiny. It is liable to be set aside for the reasons discussed above. Accordingly, the appeals are allowed. The impugned judgment and order passed by the learned District Judge are hereby set aside and the matter is sent back to the learned District Judge with a specific direction that he should now set down first the point regarding the minimum number of trustees as required under S. 47(2) of the Bombay Public Trust Act, by giving additional opportunity to the parties if they so desire to adduce additional evidence and then proceed to appoint a trustee if the existing number is less than the minimum, in the light of the observation made above.

The parties are directed to be present before the learned District Judge on 8.9.1983 to take, further instructions.

Send back the concerned records to the District Judge, Uttar Kannada.

No costs of these appeals.