JUDGMENT : J.C. Doshi, J. 1. On following substantial question of law framed on 21.07.1993, this second appeal under Section 100 of Code of Civil Procedure, 1908 (for short 'CPC') was admitted : "Does Section 31 of the Bombay Public Trust Act, 1950 apply to a trust created under some testamentary document prior to coming into force thereof?" 2. To answer the above question, some facts are required to be noticed and as such they are taken up from the pleadings as under. 2.1 The plaintiffs - appellants herein had filed Regular Civil Suit No. 210 of 1986 in the Court of the learned Civil Judge (S.D.), Amreli for declaration and for taking possession of the suit property, alleging that the suit property is a trust property. It was also contended that Pandya Jivram Mahashanker expired on Vaishakh Vad Amas of S.Y. 1990. He executed a Will on 27.04.1934, which was his last Will, pertaining to this property. According to the said Will, the suit house was given to the plaintiffs - appellants and the said house was to be used as 'Mahajanwadi'. It was also contended that deceased Jivrambhai had given vessels and some cash amount to the trustees. At the time of filing of the suit, all the trustees were expired. Learned Trial Court dismissed the suit of plaintiffs and being aggrieved by the said judgment and decree, the appellants filed Regular Civil Appeal No. 157 of 1983 before appellate Court, Amreli who confirmed the judgment and decree passed by the learned Trial Court vide judgment and order dated 30.09.1991. Hence, this second appeal. 3. For the sake of convenience, the parties are referred to as plaintiffs and defendants as referred in the regular civil suit. 4. In nutshell, it was the case of the Amreli Gadhiya Samvay Gnyati (Tad) that in the Will of the deceased Jivram Mahashanker dated 27.04.1934, they have been given a right of usage in disputed property and since the heirs of the deceased were preventing them from using the disputed property; which was bequeathed by way of Will to Amreli Gadhiya Samvay Gnyati, said Amreli Gadhiya Samvay Gnyati through its Vahivatdar unsuccessfully filed Regular Civil Suit No. 210 of 1980 before the learned Trial Court. The Appellate Court does not find favour of the original plaintiffs in First Appeal No. 157 of 1983. The Appellate Court does not find favour of the original plaintiffs in First Appeal No. 157 of 1983. Hence, this second appeal on above substantial question of law. 5. Heard learned advocate Mr. Harsh Joshi appearing for the appellants - original plaintiffs and learned advocate Mr. Henil Shah appearing for the respondents. 6. Learned Trial Court had framed as many as 13 issues at Exhibit-20 on the pleadings of the party which are as under : "1. Whether the plaintiffs prove that the suit property was originally of deceased Pandya Jivram Mahashankar as alleged? 2. Whether the plaintiffs prove that deceased Jivram Mahashankar executed a Will for his property as alleged? 3. Whether the plaintiff prove by the said Will deceased Jivaram Mahashankar gave the suit property to the Amreli Gadhiya Samvay Gnyati Tad as alleged ? 4. Whether the plaintiff proves that the plaintiff Amreli Gadhiya Samvay Ganati is the owner of a house mentioned in para 15 of the plaint as alleged? 5. Whether the plaintiff proves that defendant Nos. 1 and 2 have no right or interest in the suit property as alleged? 6. Whether the plaintiff proves that defendant No. 1 and 2 are trying to sell suit property to the defendant No. 3 as alleged? 7. Whether the plaintiffs are entitled to get relief as prayed for? 8. Whether the defendant No. 1 and 2 prove that the plaintiffs has no right to file the suit? 9. Whether the defendants prove that the plaintiff is not registered trust and hence the plaintiff has no right to file the suit? 10. Whether the defendants prove that the suit is time barred? 11. Whether the defendant No. 1 and 2 prove that by virtue of adverse possession they have became the owner of the suit property as alleged? 12. Whether the defendant were never in possession of suit property as alleged? 13. What order and decree?" 7. Recording the evidence and appreciating it, learned Trial Court answered Issue Nos. 1 to 3, 6, 8, 9, 10, 11 and 12 in "affirmative" and answered issue Nos. 4, 5 and 7 in "negative" and dismissed the suit. The finding qua ownership of the property of deceased Jivram Mahashanker Pandya was answered in affirmative. It is also believed that Jivram Mahashanker Pandya had executed a Will for his property. 1 to 3, 6, 8, 9, 10, 11 and 12 in "affirmative" and answered issue Nos. 4, 5 and 7 in "negative" and dismissed the suit. The finding qua ownership of the property of deceased Jivram Mahashanker Pandya was answered in affirmative. It is also believed that Jivram Mahashanker Pandya had executed a Will for his property. It is also believed that deceased Jivram Mahashanker Pandya gave the suit property to Amreli Gadhiya Samvay Gnyati. However, the Trial Court did not believe the ownership of Amreli Gadhiya Samvay Gnyati and answered the issue in negative and learned Trial Court also answered issue No. 7 in negative. Issue No. 9 was important whereby the learned Trial Court believed that since the plaintiff trust is unregistered trust, it has no right to file the suit. Rest of the issues are also answered against the plaintiff to dismiss the suit. 8. While answering issue No. 9 in affirmative, learned Trial Court gave following finding in its judgment : "30. I cannot accept the contention of the plaintiffs that it is a private trust because it appears from the Will that suit property was given to Amreli Gadhiya Samvay Gnyati for the purpose lunch and dinner of the community. Moreover, trustees are also appointed in the will. Thus it appears to me from the evidence that it is a public trust and not a private trust. The suit property was given to community at large for the charitable purpose and to use for the lunch and dinner of the community at large. If it is given to the certain persons then only it can be said to be private trust but it appears from the will that it is given to the community at large and so it is given for the public charitable purpose. 31. Now according to the Bombay Public Trust Act, Sec.2(7A) instrument of trust means the instruments by which the trust is created by the author of the trust and includes a scheme framed by a competent authority. Thus it appears from the above section that scheme should be framed by a competent authority but there is no evidence on record that such scheme was framed by a competent authority. Thus it appears from the above section that scheme should be framed by a competent authority but there is no evidence on record that such scheme was framed by a competent authority. Admittedly no trust is registered as public trust according to Section 18 of Bombay Public Trust Act, it shall be the duty of the trustee of a public trust to which this act has been applied to make an application for the registration of the public trust, such application shall be made to the Deputy or Assistant Charity Commissioner of the region. This application is to be made within 3 months from the date of the application of this act but admittedly no such application has been made for registration of public trust. 32. It is also provided in sec.29 of the Act that in the case of the public trust which is created by a will, the executor of such will shall within one month from the date on which the probate of the will is granted or within 6 months from the date of the testator's death whichever is earlier make an application for the registration in the manner provided in sec.18 of the act. The plaintiffs have not made any such application for the registration during the period provided in Act.29 of the Act. 33. Moreover according to Sec.31 of the Act no suit to enforce a right on behalf of Public trust which has not been registered under the act shall be heard or decided in any court. It is also provided that provisions of sub sec.(1) shall apply to claims of Act off or other proceedings to enforce a right on behalf of such public trust. 34. Thus it appears from the Sec.31 of the Act that no suit to enforce a right on behalf of a public trust which has not been registered. The plaintiffs have not registered the public trust and so they cannot enforce a right on behalf of the public trust and this court can not heard and this court cannot heard and decide such suit. 35. The plaintiffs have not registered the public trust and so they cannot enforce a right on behalf of the public trust and this court can not heard and this court cannot heard and decide such suit. 35. It appears from sec.50 of the act that suit relating to public trust in case where a direction is required to recover possession of a property belonging to a public trust or any person holding adversely to the public trust then consent in writing of charity commissioner is necessary before institution a suit." 9. Learned Appellate Court in first appeal has thoroughly reappreciated the evidence on record and believed that since the plaintiff seeking enforcement of the right created through some testamentary document prior to the Bombay Public Trust Act comes into force, the bar contained in Section 31 of the Bombay Public Trust Act also applies to the suit apart from other facts on record against the original plaintiff. The appeal, therefore, came to be dismissed. 10. If we examine the substantial question of law framed at the time of admission of this appeal, I may refer some of the provisions contained in the Gujarat Public Trust Act, 1950. Section 31 reads as under : "31. Bar to hear or decide suits - (1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. (2) The provisions of sub-section (1) shall apply to a claim of set off or other proceeding to enforce a right on behalf of such public trust." 11. The provision starts with non-obstante clause and it provided an absolute bar to enforcement of right on behalf of a public trust if it has not been registered. The Gujarat Public Trust Act, 1950 comes into operation on 14.08.1950. The testamentary document through which the plaintiff claimed that they have obtained right of usage through Will dated 27.04.1934. Admittedly, when the suit was filed, the Bombay Public Trust Act was in force and another admitted fact that when the suit was filed, the plaintiff was unregistered trust. Section 87 of the Gujarat Public Trust Act takes care of non- applicability of the Bombay Public Trust Act to certain other Acts. Section 87 reads thus : "87. Admittedly, when the suit was filed, the Bombay Public Trust Act was in force and another admitted fact that when the suit was filed, the plaintiff was unregistered trust. Section 87 of the Gujarat Public Trust Act takes care of non- applicability of the Bombay Public Trust Act to certain other Acts. Section 87 reads thus : "87. Act not to apply to certain wakfs to which Act XXIX of 1954 applies or to Gurudwara governed by Hyderabad Act XXXVII of 1956 - Nothing contained in this Act shall apply to- (a) those Wakfs in certain areas of the State to which the provisions of the Wakf Act, 1954 (XXIX of 1954), have continued to apply; or (b) the Nanded Gurudwara, the administration of which is governed by the Nanded Sikh Gurudwara Sachkhand Shri Hazur Apchalnagar Sahib Act, 1956 (Hyd.Act (XXXVII of 1956)." 12. Section 88 is provision for removal of the difficulties. It also reads as under along with Schedule-A, AA and Schedule-B : "88. Provision for removal of difficulties - If any difficulty arises in giving effect to the provisions of this Act, the State Government may by an order published in the Official Gazette, do anything not inconsistent with the provisions of this Act which appears to it to be necessary or expedient for the purpose of removing the difficulty.] [SCHEDULE A] (See sections 28, 61189* and 85.) 1. The Charitable and Religious Trusts Act, 1920. 2. The Mussalman Wakf Act, 1923, as amended by Bombay Act XVIII of 1935. 3. The Bombay Public Trusts Registration Act, 1935. 4. The Parsi Public Trusts Registration Act, 1936. 5. The Baroda Public Institutions Act (Baroda Act No. VI of Samvat 1961.) 6. The Religious Endowments Act, 1863, as applied to the Jamkhandi State in 1890. 7. The Deosthan Rules, 1912, of the Jamkhandi State as amended by Jam- khandi Act No. I of 1948. [SCHEDULE AA.] 1. The Charitable and Religious Trusts Act, 1920, in its application to the areas of the State other than the area comprised in the [Bombay area of the State of Gujarat]. 2. The Savantwadi Devasthan Act, 1932. 3. The (Hyderabad) Endowment Regulation Act, 1349, Fasli. 4. The Madhya Pradesh Public Trusts Act, 1951. [SCHEDULE AA.] 1. The Charitable and Religious Trusts Act, 1920, in its application to the areas of the State other than the area comprised in the [Bombay area of the State of Gujarat]. 2. The Savantwadi Devasthan Act, 1932. 3. The (Hyderabad) Endowment Regulation Act, 1349, Fasli. 4. The Madhya Pradesh Public Trusts Act, 1951. [SCHEDULE B.] Section Description of Documents Value 1 3 18(1) Application for the registration of a public trusts Rs.2 22(1) Report of any change or proposed change in any of the entries recorded in the register kept under section 17 Re.1 25(1) Application of any person having interest in a public trust to the Charity Commissioner to determine which of the Deputy or Assistant Charity Commissioners shall proceed with an inquiry under section 19 or 22 in regard to any public trusts. Rs.2 29 Application by the executor of a will for the registration of a public trust created by such will. Rs.2 [36 Application for sanction of the Charity Commissioner for-- (a) Sale, mortgage, exchange or gift or immovable property- (i) where the value of the property involved does not exceed Rs. 2,000. Rs.2 (ii) where the value of the property involved exceeds Rs. 2000 but does not exceed Rs. 10,000. Rs.5 (iii) in any other case. Rs.10 (b) lease of immovable property- (i) where the average annual rent reserved does not exceed Rs. 100. s.2 (ii) where the average annual rent reserved exceeds Rs.100 but does not exceed Rs. 500. Rs.5 (iii) in any other case. Rs.10 44 Application by the author of a public trust to the Charity Commissioner for his consent to act as trustee of the public trust. Rs.10 45 Application by a person intending to create a public trust to the Charity Commissioner for his consent to act as trustee of such trust. Rs.10 46 Communication by the executor of a will of a testator or the administrator of his estate notifying to the Charity Commissioner the contents of the will under which he has been appointed a trustee. Rs.10 46 Communication by the executor of a will of a testator or the administrator of his estate notifying to the Charity Commissioner the contents of the will under which he has been appointed a trustee. Rs.10 47(1) 47AA & 47A Application to the Court by the Charity Commissioner or any person having interest in a public trust or any trustee of public trust for the appointment of a new trustee or for the vesting of property or for both.] Rs.10 47(6) Appeal to the High Court from the decision of the court in application filed under subsection (1) of section 47. Rs.10 50A Application to the Charity Commissioner for framing or modifying scheme.] Rs.10 51(1) Application to the Charity Commissioner for consent to file a suit of the nature specified in section 50. Rs.10 55 Application to the Court for directions Rs.10 56A Application for opinion, advice or direction Rs.12.50 59(3) Appeal to the State Government against the order of the Charity Commissioner for the payment of contribution by a bank or person from the money standing to the credit of the public trust with such bank or person. Rs.10 70(1) Appeal to the Charity Commissioner against the finding of Deputy or Assistant Charity Commissioner under section 20, 22 or 28 or order under sub-section (3) of section 54. Rs.10 71(1) Appeal to the Bombay Revenue Tribunal against the decision of the Charity Commissioner refusing consent to the institution of a suit. Rs.10 72(1) Application to the court against the decision of the Charity Commissioner under section 40, 41 or 70 or on the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust Rs.10 72(4) Appeal to the High Court against the decision of the Court tinder sub-section (2) of section 72. Rs.10 Mukhtarnama or Vakalatnama when presented for the conduct of any inquiry, appeal or other proceeding to the Charity Commissioner, or the Deputy or Assistant Charity Commissioner. Rs.1 Application to the Charity Commissioner or the Deputy or Assistant Charity Commissioner for copies under the Act. Rs.3 Any other application or petition presented to the Charity Commissioner or the Deputy or Assistant Charity Commissioner.]. Rs.1 13. The repeal provision is contained in Section 85 and it also requires to be reads as under : "85. Rs.1 Application to the Charity Commissioner or the Deputy or Assistant Charity Commissioner for copies under the Act. Rs.3 Any other application or petition presented to the Charity Commissioner or the Deputy or Assistant Charity Commissioner.]. Rs.1 13. The repeal provision is contained in Section 85 and it also requires to be reads as under : "85. Repeal - (1) The Religious Endowments Act, 1863, is hereby repealed. (2) [On the date of the application] of the provisions of this Act to any public trust or class of public trusts under sub-section (4) of section 1 [hereafter in this section referred to as the said date)], the provisions of the Act specified in [Schedule A] which apply to such trust or class of trusts shall cease to apply to such trust or class of trusts. (3) [Save as otherwise provided in this section, such repeal] or cessation shall not in any way affect- (a) any right, title, interest, obligation or liability already acquired, accrued or incurred before [the said date], (b) any legal proceedings or remedy in respect of such right, title, interest, obligation or liability, or (c) anything duly done or suffered before [the said date]. [(4) Notwithstanding anything contained in sub-section (3) all proceedings pending before any authority under the Mussalman Wakf Act, 1923 [as amended by the Mussalman Wakf (Bombay Amendment) Act, 1935], the Bombay Public Trusts Registration Act, 1935, or the Parsi Public Trusts Registration Act, 1936, immediately before the said date shall be transferred to the Charity Commissioner and any such proceedings shall be continued and disposed of by the Charity Commissioner or the Deputy or Assistant Charity Commissioner as the Charity Commissioner may direct. In disposing of such proceedings the Charity Commissioner, the Deputy Charity Commissioner or the Assistant Charity Commissioner, as the case may be, shall have and exercise the same powers which were vested in and exercised by the Court under the Mussalman Wakf Act, 1923 [as amended by the Mussalman Wakf (Bombay Amendment) Act, 1935], and by the Registrars under the Bombay Public Trusts Registration Act, 1935, and the Parsi Public Trusts Registration Act, 1936, and shall pass such orders as may be just or proper. (5) All records maintained by the authority or court under any of the Act referred to in sub-section (4) shall be transferred to the Charity Commissioner or to the Deputy or Assistant Charity Commissioner as the Charity Commissioner may direct.]" 14. Another repeal and saving provision is Section 86, which reads as under : "86. Further repeals and savings consequent on commencement of Bom. XXIX of 1900, in other areas of State. (1) On the commencement of this Act in that area of the State to which it is extended by the Bombay Public Trusts (Unification and Amendment) Act, 1959- (i) the Religious Endowments Act, 1863, as in force in the Saurashtra and Kutch areas of the State, (ii) the Madhya Pradesh Dharmadaya Funds Act, 1951, as in force in the Vidarbha Region of the State, and (iii) any law relating to public trusts to which Chapter VII-A applies, to the extent to which it corresponds to the provisions of this Act, shall stand repealed. (2) On the date of application of the provisions of this Act to any public trust or class of public trusts under sub- section (4) of section 1 (hereinafter in this section referred to as the said date), the provisions of the Acts, specified in Schedule AA which apply to such trust or class of trusts shall cease to apply thereto. (3) Save as otherwise provided in this section, such repeal or cessation shall not in any way affect- (a) anything duly done or suffered under the laws hereby repealed or ceasing to apply before the said date; (b) any right, title, interest, obligation or liability already acquired, accrued or incurred before the said date under the laws hereby repealed or ceasing to apply; (c) any legal proceedings or remedy in respect of such right, title, interest, obligation or liability: Provided that if on the said date, any legal proceeding in respect of any public trust is pending before any court under any enactment specified in Schedule AA to which the State Government, Commissioner, Registrar or any officer of the State Government is a party, the Charity Commissioner, shall be deemed to be substituted in those proceedings for the State Government, Commissioner, Registrar or as the case may be, the officer and such proceedings shall be disposed of by such court: Provided further that every proceeding pending before any criminal court under the Madhya Pradesh Dharmadaya Funds Act, 1951 shall abate on the repeal of that Act under sub-section (1). (4) Notwithstanding anything contained in sub-section (3), all proceedings pending immediately before the said date before any authority (other than a court) under any enactment specified in Schedule AA shall be continued and disposed of under that enactment as if the Bombay Public Trusts (Unification and Amendment) Act, 1959, had not been passed. (5) Notwithstanding the cessation of any enactment specified in Schedule AA, all arrears of contributions and other sums payable under any such enactment shall be recoverable under the provisions of this Act, as if they had been recover able under the provisions of this Act. (6) All records maintained by Registrars under the Madhya Pradesh Public Trusts Act, 1951, shall be transferred to the Charity Commissioner or to the Deputy or Assistant Charity Commissioner as the Charity Commissioner may direct." 15. At this juncture, Section 28 of the Bombay Public Trust Act is also relevant to be noted and it reads as under : "28. Public trust previously registered under enactments specified in Schedule. - (1) All public trusts registered under the provisions of any of the enactments specified in [Schedule A], [and Schedule AA] shall be deemed to have been registered under this Act from the date on which this Act may be applied to them. Public trust previously registered under enactments specified in Schedule. - (1) All public trusts registered under the provisions of any of the enactments specified in [Schedule A], [and Schedule AA] shall be deemed to have been registered under this Act from the date on which this Act may be applied to them. The Deputy or Assistant Charity Commissioner of the region or subregion within the limits of which 45[a public trust had been registered under any of the said enactments] shall issue notice to the trustee of such trust for the purpose of recording entries relating to such trust in the register kept under section 17 and shall after hearing the trustee and making such inquiry as he thinks fit record findings with the reasons therefor. Such findings shall be in accordance with the entries in the registers already made under the said enactments subject to such changes as may be necessary or expedient. (2) Any person aggrieved by any of the findings recorded under sub-section (1) may appeal to the Charity Commissioner. (3) The provisions of this Chapter shall, so far as may be, apply to the making of entries in the register kept under section 17 and the entries so made shall be final and conclusive." 16. Conjoint reading of all the provisions stated hereinabove indicates that even prior to coming into force of the Bombay Public Trust Act, the registration of the Public Trust was mandatory. If such trusts are registered under the provisions of any other Act or enactment specified in Schedule-A and/or Schedule-B, they deemed to have been registered under the Bombay Public Trust Act, 1950. So this provision clearly indicates that registration of the public trust was absolute necessary to enforce any right on behalf of the trust. The Bombay Public Trust Registration Act, 1936 was in force prior to Bombay Public Trust Act, 1950 comes into the force. In view of Section 7 of the Bombay Public Trust Registration Act, 1936, registration of the trust was necessary and legal requirement. 17. I may refer to Section 29 of the Bombay Public Trust Act, which reads as under : "29. In view of Section 7 of the Bombay Public Trust Registration Act, 1936, registration of the trust was necessary and legal requirement. 17. I may refer to Section 29 of the Bombay Public Trust Act, which reads as under : "29. Public trusts created by will - In the case of the public trust which is created by a will, the executor of such will shall within one month from the date on which the probate of the will is granted or within six months from the date of the testator's death 48[which- ever is earlier] make an application for the registration in the manner provided in section 18 and the provisions of this Chapter shall mutatis mutandis apply to the registration of such trust: [Provided that the period prescribed herein for making an application for registration may, for sufficient cause, be extended by the Deputy or Assistant Charity Commissioner concerned.]" 18. If a public trust is created by Will, the executor of such Will is required to tender an application for registration of the trust in a manner the provisions of the Bombay Public Trust Act applies within one month from the date on which the probate of Will is granted or within six months from the date of testator's death, whichever is earlier. Here in case on hand it is no one's case that any of the executors of the Will of deceased Jivram Mahashanker ever have applied for probate of the Will through which they are claiming right of usage given in the Will. The bar created under Section 31 of the Bombay Public Trust Act, 1950 shall also apply to a trust created under some testamentary document prior to coming into force thereof. 19. In wake of above reasons, while answering the substantial question of law accordingly, since I find no reason to interfere with the concurrent finding arrived at by the Courts below, this appeal stands dismissed. Interim relief, if any, to discontinue forthwith.