GOLLALESHWAR DEV AND ORS. versus GANGAWWA KDM SHANTAYYA MATH & ORS.

Citation: [1985] SUPP. 3 S.C.R. 646 · Decided: 15-10-1985 · Supreme Court of India · Bench: A.P. SEN · Disposal: Appeal(s) allowed

Judgment (excerpt)

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GOLLALESHWAR DEV AND ORS. 
v. 
GANGAWWA KDM SHANTAYYA llATI! & ORS. 
OCTOBER 15, 1985 
[A.P. SEN AND D.P. MADON, JJ.] 
Bombay Public Trust Act, 1950, sections 2(10), 50, 51 and 
52(i) read with section 92 of Code of Civil Procedure, 1908, 
scope of - Whether two or more trustees of a registered public 
trust can with the permission in writing of the Charity 
Commissioner, bring a suit for declaration that certain property 
belongs to the public trust and for possession of the same from a 
person holding it adversely to the trust - Words and phrases -
Meaning of the phrase 
"person having interest in the trust" 
occurring in section 2(10) of the Act - Persons having interest 
includes trustees and other beneficiaries -
The first appellant Gollaleshwar Dev is an ancient temple 
situate in village Golgeri in the district of Bijapur which 
formed part of the erstwhile State of Bombay prior to the re-
organisation of the States. Consequent upon the enactment of the 
Bombay Public Trust Act, 1950, the temple was registered as a 
public trust. The district of Bijapur became part of the new 
State of Karnstaka on the appointed day i.e. November lat, 1956 
under the States Reorganisation Act, 1956. The Bombay Public 
Trust Act continued to remain in force in the areas which formed 
part of the erstwhile State of Bombay. Appellant No.2 is the 
present trustee of the temple and appellant No.3 the grandson of 
ex-trustee Mariyappa the elder brother of appellant No.2 ia a 
beneficiary. 
It had been cuatomary for the trusteea to permit persona 
rendering services to the temple to reside in auit premises on 
leave and licence basis. The respondents Shantayya and Smt. 
Shankarawa, who were taken in the service of the temple and 
allowed to reside in the suit premises free of rent on condition 
that they were to occupy the said premises so long as their 
services to the temple were required, started creating trouble in 
the yur 1957 with the result the father of appellant No.2 
terminated their aervices and asked them to vacate the suit 
premises. On their failure to do ao, he bro1J8ht two auita being 
Civil Suits Noa. 244 and 255 of 1957 in the name of the idol 
Shrea Gollaleahwar Dev ae plaintiff No.l with himself being 
GOLLALESHWAR DEV v. GANGAWWA KDM SHANTAYYA 
647 
truatee aa plaintiff No. 2. The respondents contested the claim 
on variou3 grounds and pleaded inter alia, (i) that the temple 
had no right to title to the suit premi'SeS" which belonged to· them 
by virtue of a.registered gift deed dated February 19,· 1917 exe-
cuted by Mariyappa Lingappa the grandfather of appellant No. 3 in 
· favour of their Predeceasor-in-title Balalochansyya Hiremath, the 
firat licencee of the suit premises; (ii) that the suits brought 
under section 50 (ii) of the Act were not maintainable for want 
·of consent in writing given by Charity Commissioner under section 
Sl; and (iii) that the Court of the Civil Judge, Senior Diviaion, 
Bijapur had no jurisdiction to entertain the suits. The suits 
were diamiaaed aa not maintainable in view of the deciaion of the 
Myaore High Court in Haritnl>a Tesple mid llsnomnt Teq>le, Sirsi, 
by ita IW!qer, S.S. Illakappa v. Sahraya. Venkatara::amppa J!&rkar 
reported in l.L.R. 19S8 My~cre 736. Thereafter a Fresh Civil Suit 
No. 2 of 1962 was instituted before .the District Judge, Bijapur 
after obtaining the consent in writing of the Charity Co:mia-
aioner by the appellant No. 2 's father aa plaintiff No. 2 and the • 
idol aa plaintiff No. 1. Later.Appellant No. 3 in the capacity of 
a beneficiary And Appellant No. 2 in the capacity of the present 
truatee were icplu.ied · aa plaintiffs Noa. 2 and 3 aa •percons 
interested in the truat•. The High Court in the Jlle&nW!Ule had. 
reversed the decision in Marikamba' s case in Ganapathi 11.ua llaik l 
.&nr. v. J:a:t& Slir1. Venltatarzun De .. reported in 1964 
l Mysore 
L1 172. Follovicg thta. said D.ll. decision in the Diatrict Judge 
held.that, •although a suit for reeovery of property belonging to 
the idol could be brought either by the idol represented by the 
\ turatee or the ..anager; auch a suit is not contemplated by 
section SO(ii) of the Act and waa therefore not maintainable and 
that auch a auit would be a governed · by the ordinary law and 
would not lie in the District Court, but either in the Court of 
·. _the Civil Judge, Junior Division or the eourt of 'the Civil Judge, 
Senior Division according to the valuation of th

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