Sainath Mandir Trust vs Vijaya & Ors on 13 December, 2010

Sainath Mandir Trust vs Vijaya & Ors on 13 December, 2010

Equivalent citations: AIR 2011 SUPREME COURT 389, 2011 (1) SCC 623, 2011
AIR SCW 3866, 2011 (2) AIR BOM R 457, (2011) 1 LANDLR 171, (2011) 2 ALL
WC 2148, (2011) 1 CAL HN 187, AIR 2011 SC (CIV) 365, (2012) 2 CGLJ 422,
(2011) 1 KER LJ 37, (2013) 1 ORISSA LR 866, (2011) 113 REVDEC 337, (2010)
13 SCALE 339, (2011) 1 JCR 204 (SC), (2011) 1 CLR 270 (SC), (2011) 84 ALL
LR 690, (2011) 1 ALL RENTCAS 108, (2011) 2 CIVLJ 193, 2011 (101) AIC (SOC)
3 (SC), (2011) 4 BOM CR 671

Author: Gyan Sudha Misra

Bench: Gyan Sudha Misra, Markandey Katju

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPEAL NO. 3030 OF 2004

SAINATH MANDIR TRUST ...Appellant

Versus

VIJAYA & ORS. ...Respondents

JUDGMENT

GYAN SUDHA MISRA, J.

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, 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/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 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
Bombay Public Trusts Act 1950. The suit land comprises of a plot bearing No. 57, arising out of
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 Sainath Mandir Trust vs Vijaya & Ors on 13 December, 2010

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 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 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 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 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 appellant is a 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 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 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.

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
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 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 Bhupati Nath vs. Basantakumari, AIR 1936 Cal. 556; Chief Controlling Revenue
Authority vs. Sarjubai, AIR 1944 Nag. 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 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 Full Bench took note of the
observation in the matter of Pallayya vs. Ramavadhanulu, reported in 13 M.L.J. 364 wherein it was

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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 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 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 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 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 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 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 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 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 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 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:

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 fit is specified that there is a prima facie
case, he may within a period of six months from the date on which the application is
made, grant or refuse his consent to the institution of such suit. The order of the
Charity Commissioner refusing his consent shall be in writing and shall state the

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