JUDGMENT - A.A. DESAI, J. :---The trial Court in a suit under section 8 of the Madhya Pradesh Public Trusts Act (the Act), instituted by the respondents, held that by Settlement Deed (Exh. 554) (the deed), a Public Trust has been created for Atba-e-Malak Jamat (the Jamat). However, the respondents not being members of the Jamat, have no locus to institute the proceedings. The trial Court therefore, by order dated 30-9-1986, dismissed the suit. In first appeal, the learned Judge maintained the order as regards creation of the trust. However, by reversing the finding, he held that the respondents/plaintiffs were the members of the Jamat and, therefore, they had locus to file the suit. The appellate Court, therefore, by order dated 1-2-1992, decreed the suit claim to set aside negative entry dated 27-3-1967 and directed registration of Public Trust. Hence, this second appeal by the original defendants. The case has a chequered history. However, some of the undisputed facts relevant for appeal are thus: 2. The parties are Daudi Bohras. Late Maulana Malak Saheb for some dispute over the contemplated religious event, disjuncted from the community. In 1892, he set up a sub-sect of his followers - the Jamat. Four prominent persons of the Jamat including late Badruddin Gulam Hussain Saheb, on 9-6-1894, executed the deed acknowledging thereunder the funds and properties referred to being of the Jamat and meant for religious cause. After death of Maulana Malak Saheb in 1899, there was a crisis over his spiritual successor. Plaintiffs claim that Abdul Kadir Saheb was nominated as Vakil and thus a successor, whereas defendants asserted that Badruddin Gulam Hussain was nominated as second Malak and Waris, by late Maulana Malak Saheb. 3. Plaintiffs maintain (plaint para 6) that for the benefit and use of the Jamat, the deed was executed. However, according to them; they have been members of Atba-e-Malak Vakil Jamat (Vakil Jamat) which came to be known as such after death of Maulana Malak Saheb. It was the same Jamat founded by Maulana Malak. They follow the tenets, precepts and spiritual rituals of Maulana Malak Saheb. The said Jamat was entitled to the benefits of the Trusts funds. The defendant is the head of Atba-e-Malak Badar, (Badar Jamat), which is different than the Jamat. 4. It was the same Jamat founded by Maulana Malak. They follow the tenets, precepts and spiritual rituals of Maulana Malak Saheb. The said Jamat was entitled to the benefits of the Trusts funds. The defendant is the head of Atba-e-Malak Badar, (Badar Jamat), which is different than the Jamat. 4. In terms of section 8 of the Act, persons having interest either in the Trust or Property included as of trust alone can file a suit. Obviously, the question of locus of the plaintiffs to file the suit goes to the root of matter and the parties have, therefore, addressed at length. Appellate Judge discussed this question at length in paras 21 to 36. He mainly adverted to the aspect as to who was the real successor of Maulana Malak Saheb. The learned Judge, in para 34, observed that the plaintiffs and others donated huge property to Maulana Malak Saheb. He held in view of a decision in (Ramchand (dead) by his legal representatives v. Thakur Janki Ballabhji Maharaj and another)1, A.I.R. 1970 S.C. 532, that the plaintiffs are the persons interested in trust. Jafarbhai was aggrieved or interested person. In para 36, he observed that the suit being under section 8 of the Act, to set aside entry dated 11-11-1955 whereunder their application to register a trust was rejected, is tenable. The learned Judge has not examined the question of locus in correct perspective. 5. Undisputedly, the deed records a settlement which has unequivocally and exclusively been for the benefit and use of the Jamat. The question for adjudication is whether "the Jamat" is capable to comprehend within its width and scope the Vakil Jamat to which plaintiffs belong. Obviously, the question has to be answered having regard to the scheme, intendment of the deed and attending circumstances. According to me, the question who was the real successor of late Maulana Malak, has therefore, hardly any relevance. The document refers that "the said Jamat is known by the name of the Jamat of the followers of Maulana Malak. In the year 1890, this Jamat disjuncted from the Jamat of those Bohras......... and the people who are at present extant in the Jamat and those, who in future will separate themselves from the Jamat, shall have no claim or right to the funds herein, which are the subject matter of this registration". (Emphasis supplied). In the year 1890, this Jamat disjuncted from the Jamat of those Bohras......... and the people who are at present extant in the Jamat and those, who in future will separate themselves from the Jamat, shall have no claim or right to the funds herein, which are the subject matter of this registration". (Emphasis supplied). Besides this the document invariably with emphasis refers to "the Jamat". Crystally it is clear that on a particular background, persons of a definite belief and description namely, followers of Maulana Malak Saheb separated from the community of Daudi Bohra. They formed a separate Jamat. The Jamat so formed has a definite and distinct identity. At the time of disjunction, they had no funds or property. Gradually it was raised. The document took abundant precautions to prevent in future any further disjunction or separation by the members from the Jamat. Those who separate or disjunct from the Jamat would render themselves disentitle to claim any right over the funds or property. The Jamat, as referred to, having regard to the background convey certain persons grouped together with definite description. The term since made so sacrosanct, it is not capable to comprehend any other by-sect or sub-division with different description or identity. Even the plaintiffs dont consider Badar Jamat as a part of the Jamat. The plaintiffs therefore cannot successfully claim that Vakil Jamat is the same Jamat which was founded by late Maulana Malak Saheb. In description or identity, plaintiffs Jamat is not the same Jamat envisaged in the deed. The plaintiffs Jamat carry different identity not contemplated by the deed. The plaintiffs, therefore, cannot be treated as the members of the Jamat. 6. The main thrust of contention of Shri Palshikar, the learned Counsel for respondents/plaintiffs, is that plaintiffs are members of Vakil Jamat. They, however, follow late Maulana Malak. They are, therefore, also the members of the Jamat. The submission is not in conformity with the logic of the deed. Merely by following Maulana Malak, the plaintiffs cannot claim membership of the Jamat. Such followers had to scrupulously maintain their identity as envisaged. To follow precepts of the founder of the Jamat is no doubt precious being character of such person. But what was more imperative as envisaged by the deed, to maintain zealously the identity of the Jamat and scrupulously prevent further sub-division. Such followers had to scrupulously maintain their identity as envisaged. To follow precepts of the founder of the Jamat is no doubt precious being character of such person. But what was more imperative as envisaged by the deed, to maintain zealously the identity of the Jamat and scrupulously prevent further sub-division. What is more decisive and predominant was to follow the precept of founder while being in the Jamat which he founded. The deed further mandates to maintain scrupulously unity of the Jamat. The plaintiffs, even otherwise, have not made out any case of dual membership. The deed also does not permit such device. To claim interest in the Trust, the person must essentially be a member of the Jamat. Any identity different than the Jamat is definitely indicative of disjunction of such persons. 7. The plaintiffs (para 19) pleaded that Maulana Abdul Kadir was persecuted by Badruddin Gulam Hussain and his followers. As a result, in 1900, he and others were forced to leave Mehandibag. If it was so, they were not ousted from the Jamat. For all practical purposes, they continued to be a member of the Jamat. In that eventuality, there was no rationale for Abdul Kadar and his followers to distinguish themselves with description of Vakil Jamat. Shri Palshikar tried to explain that Maulana Malak Saheb appointed Abdul Kadir Saheb as "Vakil". As per the precept Vakil alone had to carry on the religious mission of the Jamat (Amar). Hence, the Jamat, after death of Maulana Malak Saheb, came to be known as Vakil Jamat. 8. Apart from correctness of the statement, if Abdul Kadir had to carry on the mission of the Jamat as per precept of Maulana Malak Saheb, he could not rationally change the description of the Jamat. Obviously, it is more probable after departure from Mehandibag, he and his followers separated from the Jamat and with a distinguishing identity set up Vakil Jamat. Appellants asserted that Abdul Kadir for his derogatory activities was ex-communicated from the Jamat. Shri Palshikar in his submissions before the first appellate Court, also endorsed the plea of ex-communication (page 13 para 13). Ex-communication has definite connotation. It means ousting of a person from the caste or community. It definitely brings in result complete cessation of relationship between the two. It is, therefore, more probable that Abdul Kadir and others on ex-communication constituted Vakil Jamat. Ex-communication has definite connotation. It means ousting of a person from the caste or community. It definitely brings in result complete cessation of relationship between the two. It is, therefore, more probable that Abdul Kadir and others on ex-communication constituted Vakil Jamat. This Jamat might have its root or origin in the Jamat. It, however, could not claim to be a part of the Jamat. 9. The document further stipulates "and if people in any manner whatever either in future or later on disjunct from this Jamat and constitute a separate Jamat disjuncted from this Jamat and declare itself to be the same Jamat holding conviction that the basis of disjunction is the same as enumerated in the preceding stage of this document, but if they are unable to establish this in accordance with precept of the same basis, then in that premise, the Jamat that has disjuncted, shall also have no right or claim on these funds. "The plaintiffs have not set up any right on these lines. Even otherwise, Shri Palshikar fairly conceded that it is not the case of the plaintiffs. 10. Shri Palshikar then submitted that the plaintiffs do not claim any interest in the property as envisaged by section 8 of the Act. However, their forefathers sumptuously donated (Hadiya) funds and property to late Maulana Malak Saheb. Out of those donations, as per his directions property referred to in the deed was purchased in the name of Badruddin Gulam Hussain. The plaintiffs, therefore, have interest in the Trust. Shri Palshikar placed reliance on a decision in (Mangilal v. Smt. Durga Devi and others)2, A.I.R. 1968 Raj. 314, wherein it is held that - "Persons who, not only made contribution or offerings but devoted their time and energy for the preservation of trust property, are persons interested in the trust within the meaning of section 92 of the Code of Civil Procedure." Shri Palshikar then invited my attention to a decision in Ramchand (dead) by his legal representatives v. Thakur Janki Ballabhji Maharaj and another, A.I.R. 1970 S.C. 532, wherein it is held that - "A person, who has made large donations for the maintenance of the temple, has clearly a substantial interest to maintain a suit for possession of the temple and its properties against the Pujari or Manager, on behalf of the deity to protect the property from mis-management and mis-appropriation. (Para 8) Section 92 of Civil Procedure Code has no application to the suit and the sanction of the Advocate General is not a condition of its initiation". It follows from the ratio that the persons, who are subscribers or doners, can independently maintain the suit for recovery of trust property. They are not held to be person of description "having interest in trust". Sanction from the Advocate General as envisaged by section 92 was not obligatory for them, to institute such suit. The ratio of the Supreme Court, according to me, goes contrary to the claim of the respondents. 11. Shri Bobde, the learned Counsel appearing for appellants, strenuously resisted the tenability of submission. According to him, a doner cannot claim any interest or right in the property or its disposition as per Mohammadan Law. Referring to deposition of P.W. 5 Vasi and certain other documents on record, he pointed out as the admission of the plaintiffs that the doners completely relinquish all rights over the property so donated. As such, the plaintiffs could not maintain interest in the Trust, on a plea as set up. Apart form the legal debate, the factual position is otherwise. Exh. 164 - Sale Deed dated 18-10-1892 is of Mehdibagh property. Undisputedly, it is in the name of Badruddin Gulam Hussain. The document does not refer to, any funds received by Maulana Malak Saheb, the purchase from and out of such fund or his dictate. Submission of Shri Palshikar is that Maulana Malak Saheb was spiritual head. He, therefore, preferred to purchase the properties in the name of Badruddin. Reliance is placed on the deposition of P.W. 9. According to him, Badruddin Gulam Hussain was very poor and the property was purchased out of donations offered to Maulana Malak Saheb. His evidence is wholly inadmissible. He was not born when the events took place. He has no personal knowledge. His statements are based on hearsay. 12. The respondents then placed reliance on Article 5 - Exh. 550. This is an extract of the printed book on Mehadibagh Institution. The recital is "......... after coming down to Nagpur by the order of late Mr. Malak, the present Mr. Malak had purchased that land which was vacant piece of agricultural land and on which presently stands the Mehadibagh residence. 550. This is an extract of the printed book on Mehadibagh Institution. The recital is "......... after coming down to Nagpur by the order of late Mr. Malak, the present Mr. Malak had purchased that land which was vacant piece of agricultural land and on which presently stands the Mehadibagh residence. They are erecting temporary shades where they took up their abode." The document does not indicate that the purchase was out of donation to late Maulana Malak. On the contrary the recital refers - purchaser - Badruddin Gulam Hussain as "present Malak". It completely takes away the foundation of plaintiffs case. 13. In 1897 by Exh. 251 - Sale Deed, Maulana Malak Saheb purchased village Umred in his name. This makes it explicit that there was no spiritual impediment for the head of Jamat to hold property in his own name. This further makes the explanation of learned Counsel completely lame and infirm relating to alleged ostensible purchase by Badruddin. Article 5 - Exh. 550 is a statement of accounts for the year 1892 to 1897 of Mehadibagh. It does not refer to Exh. 164 dated 18-10-1892 or any amount set apart to purchase of Mehandibagh land. On the contrary, it refers to purchase of Umred Village. Moreover, the statement indicates various items of expenditure, which are mostly personal or domestic and that has nothing to do either with the Jamat or the religious cause. The plaintiffs failed to substantiate that the property was purchased out of donations of their forefathers. 14. Shri Palshikar then pointed out that on 7-10-1953, Jafar Bhai applied under section 5. The Registrar after enquiry, recorded findings under section 6 and by order dated 11-11-1955 rejected the application. Adjudication of their application has established that they were the persons having interest. The plaintiffs since aggrieved owing to rejection can maintain suit under section 8 of the Act. Plea does not hold any merit. Section 8 of the Act, does not merely refer to person aggrieved, who is necessarily an applicant under section 5. Coupled with it also envisages on " a person having interest in the Public Trust". Provisions emphasise on both the character of plaintiffs. Follows therefrom, entertaining application of the plaintiff under section 5 is not conclusive of his character as person interested. It can be subjected to further scrutiny when he approaches the Civil Court. Coupled with it also envisages on " a person having interest in the Public Trust". Provisions emphasise on both the character of plaintiffs. Follows therefrom, entertaining application of the plaintiff under section 5 is not conclusive of his character as person interested. It can be subjected to further scrutiny when he approaches the Civil Court. The trial Court has rightly examined the authority of the plaintiff to file the instant suit. The plaintiffs in view of the discussion are not members of the Jamat or persons having interest in the Trust or otherwise as envisaged by the Act. 15. Unsuccessfully the plaintiffs carried a marathon crusade to get the registration as a Public Trust. Inter alia, in 1947, the respondents 1 and 4 with others, complaining breach of Public Trust, under section 92 of the Code tried to seek permission of the Advocate General, to file a suit for appropriate directions from the Civil Court. One of the questions directly and substantially involved was whether the applicants were members of the Jamat. The Advocate General observed that "it is clear that the applicants belong to that branch of the community, which is disjuncted, and who constitute themselves into a separate Mandali under the leadership of a different spiritual head and thus, had ceased to be members of the original Mandali, which accepted Badruddin Gulam Hussain as the second Malik". He ultimately reached a conclusion in para 7 that "Prima facie I, therefore, find that none of the applicants are members of Atba-e-Malak sub-sect of Bohra and they are no longer beneficiaries in the Trust created by the Trust Deed dated 9-7-1894 for the benefit of the members of Atba-e-Malak sub-sect. The applicants have, therefore, no right to make application under section 92 of the Civil Procedure Code". He, therefore, by order dated 9-7-1948 rejected the application. The plaintiffs accepted the findings without any demur. 16. Undisputedly, the same question relating to membership of the plaintiffs of the Jamat is directly involved in the instant proceedings. I am, therefore, posed with a question as to whether the findings so recorded by the Advocate General, operate as res-judicata? The learned Counsel for both the parties in their unusual gesture, are unanimous in their assertion that the findings as recorded do not operate as res-judicata. I am, therefore, posed with a question as to whether the findings so recorded by the Advocate General, operate as res-judicata? The learned Counsel for both the parties in their unusual gesture, are unanimous in their assertion that the findings as recorded do not operate as res-judicata. According to them - (a) proceedings before the Advocate General were administrative in nature, (b) Advocate General is not a Court, and (c) order does not finally decide the rights of the parties. They placed reliance on a decision in (Mayer Simon, Parur v. Advocate General of Kerala and others)3, A.I.R. 1975 Ker. 57. The question before the Full Bench was whether the order passed under section 92 of the Code was amenable to a Writ of Certiorari under Article 226 of the Constitution of India. The Full Bench considered the decision in (Abu Backer Adam Sait and others v. Advocate General of Travancore Cochin State and others)4, A.I.R. 1954 Travancore - Cochin 331, wherein the Division Bench has held that the function of Advocate General under section 92 of the Code is quasi-judicial and affects rights of the parties. Subsequently, Full Bench in (A.K. Bhaskar v. Advocate General)5, A.I.R. 1962 Ker. 90, has held that the Advocate General is not involved in any judicial proceeding and his conclusions do not in any way decide the rights of the parties. The Full Bench in the case cited supra, considered both the decisions in para (5) and overruled. They observed that - "The Advocate General does not act as a quasi-judicial Authority in granting or refusing consent under section 91(1) of the Civil Procedure Code, but acts as a statutory administrative authority performing the parens partriae jurisdiction of the State in regard to public trusts, and while acting thus can and does cause substantial injury at times, preventing the taking of a step in aid of vindicating a right and this can cause injury for section 92(2) bars any action for the reliefs mentioned in section 92(1)". 17. 17. I propose to examine this question - whether the Advocate General is a Court of limited jurisdiction in reference to Explanation VIII to section 11 of the Code, which reads as thus : "An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised". Undisputedly, Advocate General is a constitutional Authority. Section 92 of the Code confers a jurisdiction on him to examine and decide matters relating to consent to file suit for redressal of grievance in respect of breach of Public Trust. Legislative Scheme necessarily embodies a scrutiny, which is in the nature of censorship of litigation against Public Trust. Exercise of jurisdiction by the Advocate General is not merely a formality or discretion. It depends upon adjudication by the Advocate General on certain question, which are inherent in the nature of enquiry under section 92. Some of them are whether : Are the applicants interested person, does Public Trust exist or was there a breach of trust? etc. To be just and fair by every public functionary is a majesty of democratic life. Besides proceedings under section 92 having regard to character and intricacy, involves judicial function. If the Advocate General grants permission, his findings could be questioned in a suit to be filed and, therefore, according to Shri Palshikar, they do not finally decide the right of parties. Even if it is so, it is partly correct. When the Advocate General refuses permission, then the applicant is finally precluded from availing a legal remedy for redressal of grievance as regards violation of Trust, which is undisputedly a legal right of the applicant. Scheme of section 92 does not provide any remedy for such applicant. His rights are finally decided by the decision of Advocate General. The Full Bench cited supra has enunciated this proposition. 18. This Court considered the term Court in a decision in (Girdhar C.Nichani v. Rev. E.H. Lewellen and another)6, 1991 Mah. L.J. 891, and held the Charity Commissioner as Court in reference to Article 227 of the Constitution. His rights are finally decided by the decision of Advocate General. The Full Bench cited supra has enunciated this proposition. 18. This Court considered the term Court in a decision in (Girdhar C.Nichani v. Rev. E.H. Lewellen and another)6, 1991 Mah. L.J. 891, and held the Charity Commissioner as Court in reference to Article 227 of the Constitution. The learned Counsel for the parties urged that for having the trappings of the Court, the Advocate General must have authority to take affidavit by way of proof, summon or enforce attendance of persons, examine them on oath, order discovery or inspection. For being a Court, it is also essential to provide for appeal or review against the order of the Authority. Certain powers are to be conferred on the Authority or Officer to carry out the functions. Order of the Authority is occasionally subjected to further scrutiny. However, all these are ancillary to the basic function. What is decisive is the nature of function and not the extent of power conferred, or further circumventing of such power. More pertinent aspect is that by Amendment Act of 1976, the term leave of the Court has been substituted in place of leave of Advocate General. As such, the jurisdiction of the Advocate General under section 92 is now being exercised by the Civil Court. The Advocate General, having regard to the nature of jurisdiction under section 92 of the Code and binding effect of his decision, is a Court of limited jurisdiction as envisaged by Explanation VIII to section 11 of the Code. 19. According to learned Counsel for the parties, the Advocate General recorded findings on 9-7-1948, whereas Explanation VIII to section 11 came in 1976 on the statute book. The Amendment cannot have retrospective effect. Mr. Palshikar therefore submitted that the findings of Advocate General cannot bind the plaintiff since recorded prior to 1976. Provisions have no retrospective effect. Findings of Advocate General may therefore not bind the proceedings in a subsequent suit which has been decided earlier to 1976. It may not also reopen the findings recorded in such a suit. However, they are binding in the proceedings, which are pending adjudication after 1976. This appeal being continuation of suit, the finding recorded by Advocate General since res-judicata, is binding on the plaintiff, in the instant proceedings. It may not also reopen the findings recorded in such a suit. However, they are binding in the proceedings, which are pending adjudication after 1976. This appeal being continuation of suit, the finding recorded by Advocate General since res-judicata, is binding on the plaintiff, in the instant proceedings. The plaintiffs are therefore precluded from asserting that they are persons having interest in the Public Trust. In view of the discussion, I hold the plaintiffs are not the persons as envisaged by section 8 of the Act. They were therefore not competent to institute the instant suit. Consequently the instant suit at their behest is liable to be dismissed. Since, the findings as recorded finally decide the appeal, I have not heard the learned Counsel for parties on other questions involved and raised in this appeal. ORDER Appeal is allowed. Impugned judgment dated 1-2-1992 passed by the Additional District Judge is hereby set aside. Judgment and decree dated 30-9-1986 passed by the trial Court dismissing the suit as not maintainable is hereby confirmed. No order as to costs. Appeal allowed. *****