M S UNIVERSITY OF BARODA Vs. SITARAM BHANU MAHARAJ SHIRGARKAR

JUDGEMENT

(1.) All the three appeals are directed against one judgement delivered by the learned Assistant Judge Baroda on 16th September 1974 in Miscellaneous Application No. 187 of 1971. The facts which gave rise to this litigation may be briefly stated as under:

(2.) One Purshottam Sadashiv Deuskar of Baroda died on 16-3-1961. He had executed a registered Will dated 14-7-1958. The litigation started when the three applicants of Miscellaneous Application No. 187 of 1971 filed Miscellaneous Civil Application No. 150 of 1961 in the Court of the Civil Judge (S.D.) Baroda for obtaining probate with Will annexed or succession certificate in respect of the estate of the deceased basing their claim on the Will dated 25-4-1954 made by the deceased. That application was opposed by one Laxmi who had appeared in response to the public notice issued by the Court. She was sister of deceased Purshottam Deuskar. She has also now expired. Opponent no. 1 had also appeared in these proceedings and present opponents nos. 3 and 4 also appeared in those proceedings and ultimately the learned Civil Judge (S.D.) came to the conclusion that the application was liable to be rejected inasmuch as will dated 25-4-1954 was not the last will of the deceased but the last Will of the deceased was dated 14-7-1958 which was a registered document.

(3.) The present applicants were not satisfied with the judgement and filed appeal in High Court which was numbered as First Appeal No. 467 of 1963 and that appeal came to be dismissed by judgement dated 15 During the pendency of the above proceedings opponent No. 2 made a complaint to the Assistant Charity Commissioner Baroda. His complaint was that by a registered Will dated 14-7-1958 the deceased had given certain legacies for public religious and charitable purposes and therefore a public trust was created under the said Will dated 14 In view of this complaint Inspector Shri S. M. Desai of the office of the Assistant Charity Commissioner started inquiry and ultimately the Assistant Charity Commissioner on report being submitted to him started a suo motu inquiry under sec. 19 to determine whether public trust was created under the said Will dated 14-7-1958 made by deceased Purshottam Deuskar. Notices were issued to opponents nos. 3 and 4. Notices were also issued to the first three applicants and to Bai Laxmi and also to opponents nos. 1 and 2. The Assistant Charity Commissioner after an elaborate inquiry carne to the conclusion that the last Will made by the deceased dated 14-7-1958 was duly proved and a public trust was created by the deceased under the said will. Now according to this will a public trust was created in respect of (1) securities of Rs. 33 200 directed by the testator to be given to Baroda University for giving scholarships (2) securities of Rs. 8 0 directed by the testator to be given to Brahmin Sabha Baroda and (3) Rs. 500/directed by the testator to be given to Sanskrit Mahavidyalaya Baroda. The Assistant Charity Commissioner in view of the above findings ordered that a public trust should be registered. Against the said orders the present applicants preferred Appeal to the Charity Commissioner being Appeal No. 32 of 1967 That appeal was dismissed on 25-9-1971. After dismissal of the appeal by the Charity Commissioner the present applicants preferred Application under sec. 72 of the Bombay Public Trust Act in Court of the District Judge Baroda who transferred the matter to the Assistant Judge Baroda and the matter was decided by the learned Assistant Judge Baroda. The learned Assistant Judge came to the conclusion that the Will dated 14-7-1958 was proved to be the last Will of deceased Purshottam. He also came to the conclusion that Sitaram was proved to the an executor of the said Will. However the learned Assistant Judge came to the conclusion that no public trust was created in regard to securities which were directed by the testator to be given to Baroda University for giving scholarships and also in respect of securities directed by the testator to be given to Brahmin Sabha. However according to the learned Assistant Judge a public trust was created in regard to a sum of Rs. 500/directed by the testator to be given to Sanskrit Mahavidyalaya Baroda. That judgement is challenged by the appellants.