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1974 DIGILAW 43 (KAR)

SAMBA DIXIT DAMODAR UPADHYA v. VATSALA

1974-02-26

CHANDRASHEKARAIAH, NORONHA

body1974
CHANDRASHEKHAR, J. ( 1 ) THIS appeal under sub-sec. . (6) of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act) is from an order of the District Judge, north Kanara (hereinafter referred to, as the Court) appointing respondent ( 2 ) HEREIN as the sole trustee of Tambaragouri Temple at Gokarn. Most of the material facts are not in dispute. Tambaragouri Temple at Gokarn, has been registered as a public trust under the Act. Shankar subba Bhat Gopi, who was the sole trustee of the temple, died on 4-1-1972. His daughter (respondent 1 herein) made an application to the Court under sub-sec. (1) of S. 47 of the Act praying that Shama Ganapiah Bhat gopi (respondent 3 herein) might be appointed as the sole trustee of the temple. He filed in the Court a Jahiri signifying his willingness to act as trustee if he was appointed. Two persons filed objections to that application. ( 3 ) THE appellant and another person, Sitaram Narayan Bhat Prasad also made two separate applications to the Court, each praying that he might be appointed as the sole trustee of the temple. To those applications also some persons had filed their objections. The learned District Judge considered all those applications together and by his common order dt. 7-9-1972 appointed respondent 3 herein as the sole trustee of the temple. In this appeal, the appellant has challenged that appointment. Mr. T. S. Ramachandra, learned Counsel for the appellant, urged the following two grounds : (i) The learned District. Judge could not appoint as the sole trustee respondent 3 herein who had not, himself made an application under section 47 (1) praying that he might be so appointed; and (ii) The appellant was better qualified than respondent 3 to be appointed as the sole trustee of the temple. ( 4 ) THE relevant part of Section 47 of the Act reads : mr. Rarnachandra contended that under S. 47 (3) the Court can appoint as trustee a person other than the Charity Commissioner if such person has made an application under S. 47 (l) to the Court for being so appointed and that the Court cannot appoint such person as trustee if he has not made such application. As respondent 3 herein had not himself made such application before the Court, Mr. As respondent 3 herein had not himself made such application before the Court, Mr. Rarnachandra maintained that the Court could not have appointed him as the trustee. Sub-sec. (3) of S. 47 gives discretion to the Court to appoint either the charity Commissioner or any other person as the trustee to fill up the vacancy. Sub-sec. (4) sets out the guiding principles for exercising such discretion. We are unable to accept the contention of Mr. Rarnachandra that the expression any other person occurring in S. 47 (3) refers to a person who has made an application under S. 47 (l ). It may sometimes happen that a person interested in a public trust, or the Charity Commissioner, may apply to the Court that some other person who is suitable for being appointed as trustee be so appointed and that such other person may not himself have made an application to the Court for being appointed as the trustee, though he may be ready and willing to act as the trustee if he is so appointed. There is no reason why the choice of the Court in appointing a trustee should be limited to the person who has himself made an application under Section 47 (1 ). ( 5 ) THUS, we are unable to accept the contention of Mr. Ramachandra that respondent 3 herein who had not himself made an application under Section 47 (1) could not be appointed as the sole trustee. Regarding the merits of respondent 3 herein, the Court has observed that he was a land-holder owning lands assessed to Rs. 300 per annum and was also a businessman and that hence was suitable for being appointed as the sole trustee. The appellant who gave evidence as DW. 2, has stated that he was a Vaidic and Adhyapak in the Sanskrit College at Gokarn getting a salary of Rs. 275 p. m. that he was actually drawing only Rs. 40 p. m. and giving the rest of his salary to the College as donation and that he had lands assessed to, Rs. 25 per annum. In his cross-examination he admitted that he was also a trustee of Sri Ganapathi Temple at Gokarn and that his elder brother was a trustee of Mahabaleshwar Temple at Gokarn. 40 p. m. and giving the rest of his salary to the College as donation and that he had lands assessed to, Rs. 25 per annum. In his cross-examination he admitted that he was also a trustee of Sri Ganapathi Temple at Gokarn and that his elder brother was a trustee of Mahabaleshwar Temple at Gokarn. Thus, as between the appellant and respondent 3, it is clear that the latter is financially a more substantial person and has better experience of management ( 6 ) HOWEVER, Mr. Ramachandra argued that as respondent 3 herein had no knowledge of the rites and ceremonies to be performed in the temple he could not be regarded as a suitable person. We are unable to accept the above contention of Mr. Ramachandra. It is not necessary that a trustee of a temple should himself perform the pujas and other rites therein. There will be separate Archaks to perform such functions. What is expected of the sole trustee of a temple are his trustworthiness to safeguard the funds and assets of the temple, to manage the affairs of the temple property and to keep proper accounts. Respondent 3 herein being both a substantial land-holder and businessman he can be expected to safeguard the Funds and assets of the temple and to manage the affairs of the temple properly taking the assistance of Archaks to perform Pujas and other rites and ceremonies, Though the appellant may be a scholar, there is no evidence that he has any experience of management of any institution. Admittedly respondent 3 was in actual management of the temple for some time before the impugned order was made. Thus, we find no good grounds to dissent from the view taken by the learned District Court that respondent 3 herein is better suited than the appellant or any of the two other applicants, for being appointed as the sole trustee of the temple. ( 7 ) IN the result, this Appeal fails and is dismissed. In the circumstances of the case, we make no order as to costs. --- *** --- .