{"id":137586,"date":"1966-08-22T00:00:00","date_gmt":"1966-08-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hasan-nurani-malak-vs-assistant-charity-commissioner-on-22-august-1966"},"modified":"2015-02-07T11:04:02","modified_gmt":"2015-02-07T05:34:02","slug":"hasan-nurani-malak-vs-assistant-charity-commissioner-on-22-august-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hasan-nurani-malak-vs-assistant-charity-commissioner-on-22-august-1966","title":{"rendered":"Hasan Nurani Malak vs Assistant Charity Commissioner, … on 22 August, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hasan Nurani Malak vs Assistant Charity Commissioner, … on 22 August, 1966<\/div>\n
Equivalent citations: 1967 AIR 1742, \t\t 1967 SCR (1) 110<\/div>\n
Author: Shelat<\/div>\n
Bench: Shelat, J.M.<\/div>\n
           PETITIONER:\nHASAN NURANI MALAK\n\n\tVs.\n\nRESPONDENT:\nASSISTANT CHARITY COMMISSIONER, NAGPUR & ORS.\n\nDATE OF JUDGMENT:\n22\/08\/1966\n\nBENCH:\nSHELAT, J.M.\nBENCH:\nSHELAT, J.M.\nRAO, K. SUBBA (CJ)\n\nCITATION:\n 1967 AIR 1742\t\t  1967 SCR  (1) 110\n\n\nACT:\nMadhya\tPradesh Public Trusts Act (30 of 1951), ss. 5, 6,  7\nand  8 Scope of-Registrar after enquiry recording finding  a\ntrust  not a public trust-Whether required to make entry  of\nnegative  finding  in register of  public  trusts-Effect  on\nright to file suit under s. 8 to set aside finding-Repeal of\nAct  30 of 1951 in application to Vidharbha area by  amended\nBombay Public Trusts, Act, 1950, s. 86-Saving clauses in  s.\n86(3)-Effect of-Whether fresh enquiry to determine if  trust\na public  trust competent.\n\n\n\nHEADNOTE:\nIn  October 1953 upon an application made under s. 5 of\t the\nMadhya Pradesh Public Trusts Act, 30 of 1951, the  Registrar\nheld  an enquiry ,on the question whether  particular  trust\nfounded in 1891 in, Nagpur in the Vidharbha area of the ate,\nof  which  the\tproperties were in  the\t possession  of\t and\nmanaged\t by  the  appellant, was a  public  trust.   On\t the\nconclusion  of the inquiry, in accordance with s. 6  of\t the\nAct.  he recorded a finding in November 1955 that the  trust\nin question was not a public trust.  However, the  Registrar\ndid  not, as required by s. 7 of the Act, cause an entry  of\nthis  finding to be made in the register maintained  by\t him\nunder the Act.\nOn  November 1, 1956, as a result of the  reorganisation  of\nStates,\t the  Vidharbha area was merged in the\tthen  Bombay\nState.\tThe Bombay Legislature thereafter passed the  Bombay\nPublic\tTrusts\tUnification and Amendment Act,\t1959  (6  of\n1960)  and by a notification dated February 1, 1964,  passed\nthereunder, the Bombay Public Trust Act, 1950, was, extended\nto the Vidharbha area.\tBy s. 86 sub-ss. (1) and (2) of\t the\nBombay Act of 1950 inducted into that Act by Bombay Act 6 of\n1960,  the M.P. Act was repealed and the  saving  provisions\ncontained  in  cls. (a), (b)and (c) in s.  86(3)  projected,\ninter  alla anything ,done, any rights etc. accrued and\t any\nlegal  proceedings pending under the repealed Act .On  march\n2, 1962, Respondents 2 to 5 filed an application under s. 19\nof the Bombay Act before the Assistant Charity\tCommissioner\nfor  an\t enquiry as to whether the said trust was  a  public\ntrust.\t The  appellant contended that since the  trust\t was\nalready\t declared not to be, a public trust under  the\tM.P.\nAct,  the Assistant Charity Commissioner was precluded\tfrom\nholding\t the  enquiry under the Bombay Act.   The  Assistant\nCharity\t Commissioner  however rejected this  contention  on\nSeptember  6, 1962 and thereupon the appellant filed a\twrit\npetition in the High Court challenging this decision.\nTwo  contentions were raised by the appellant in support  of\nhis  petition.\tFirstly, that the Registrar under  the\tM.P.\nAct  having found That the trust was not a public trust\t and\nsix months having expired from the date of his finding, that\nfinding\t became\t final under s. 8; That a right\t within\t the\nmeaning of cl. (b) of s. 86(3) of the Bombay Act ,vested  in\nthe   appellant\t  and  therefore   the\t Assistant   Charity\nCommissioner  :was not competent to reopen that finding\t and\nstart  an inquiry abrogating his said right;  and  secondly,\nthat it was obligatory on the Registrar to make an entry  in\nthe register of public trusts maintained by him\n111\nunder  the Act and that since he had not made such an  entry\nthe enquiry held by him was not completed; that being so the\nenquiry\t was  a\t pending proceeding saved by  s.  86(3)\t and\ntherefore  the only remedy which respondents 2 to 5 bid\t was\nto. proceed in that proceeding by calling upon the Registrar\nto  make  and notify such entry and if necessary to  file  a\nsuit under s. 8 of the M.P. Act challenging that finding.\nThe High Court rejected both these contentions and held that\nthe M.P. Act did not confer any finality on the\t Registrar's\nfinding\t and  that under that Act finality  attached  to  an\nentry  made  by\t the Registrar in  the\tregister  of  public\ntrusts; as the only register that the Registrar was enjoined\nupon to maintain under the Act and the rules made thereunder\nwas  the register of public trusts it was not  incumbent  on\nhim to make an entry in such register when his finding was a\nnegative  one.\t No such entry having been  made,  no  right\nunder  s.  86(3) vested in the appellant which would  bar  a\nfresh inquiry under the Bombay Act.  The High Court  further\nheld that there being no obligation on the Registrar to make\nsuch  a\t negative  entry,  it could not\t be  said  that\t the\nproceedings  before  him amounted to it\t pending  proceeding\nsaved  under  s.  86(3).  It was also  held  that  the\tsuit\ncontemplated  under s. 8 of the M.P. Act was a suit for\t the\npurpose of correcting an entry made by the Registrar and  as\nno  such entry was made, respondents 2 to 5 could  not\thave\nfiled a suit under that section.\nOn appeal to this Court,\nHELD  :\t A  fresh  inquiry under  the  Bombay  Act  was\t not\ncompetent  and\tthe  Assistant\tCharitty  Commissioner\t was\nprecluded from entertaining it. [119 B]\nReading ss. 5, 6, 7 and 8 of the M.P. Act it was clear\tthat\nthe  Registrar\tis enjoined upon to- make an  entry  in\t the\nregister  of  public  trusts  irrespective  of\twhether\t his\nfinding\t is in the affirmative or in the negative.  For\t the\nentry  he has to, make is the entry \"in accordance with\t his\nfinding\" whatever that finding is. [117 E]\nThe  inquiry  held by the Registrar under the M.P.  Act\t was\nindisputably  \"a  thing\t duly done\" under  that:  Act.\t The\ninquiry\t and its result having been saved by s.\t 86(3),\t cl.\n(a), they continued to be governed by the M.P. Act in  spite\nof its ceasing to apply in Vidharbha.  It could not be\tsaid\nthat the inquiry was completed because the Registrar bad yet\nto make the entry of his finding which he was bound to\tmake\nunder  s.  7  of the M.P. Act; it was  therefore  a  pending\nproceeding under that Act. [118 G; 119 A-B]\nUniversal  Import  Agency  V.  Chief  Controller,  [1961]  1\nS.C.R.305\nreferred to.\nRamalal\t  v.  Charity  Commissioner,  63  Bom.\t L.R,\t418,\ndistinguished.\nThe cause of action for a suit under s. 8 of the M.P. Act is\nfinding and not the entry which is merely consequential.  It\nis  therefore not right to say that a suit cannot. be  filed\nunless\tthe Registrar has made the entry.   The\t legislature\ncould not have left the right to file a suit to the mercy of\nthe Registrar who may or may not make the entry. [114 B; 117\nA-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 498 of 1964.\n<\/p>\n
112<\/span><\/p>\n
Appeal by special leave from the judgment and order dated  9
\n12,,1963,  of  the  Bombay High.  Court\t (Nagpur  Bench)  at
\nNagpur in Special Civil Application No. 380 of 1962.
\nS.  T. Desai, G. L. Sanghi, S. C. Ghate, A. S. Babde and  O.
\nC. Mathur, for the appellant.\n<\/p>\n
B. R, L. Iyengar and B. R. G. K Achar, for respondent No. 1.
\nN. C. Chatterjee, Shankar Anand, Asghar Ali and Ganpat Rai,
\nfor respondents Nos. 2 to 5.\n<\/p>\n
The Judgment of the Court was delivered by
\nShelat,\t J. This is an appeal by special leave\tagainst\t the
\nJudgment  and  order  of  the  High  Court  of\t Maharashtra
\ndismissing the appellant’s petition under Article 226 of the
\nConstitution.  The question arising in the appeal is whether
\nthe  Assistant\tCharity\t Commissioner  appointed  under\t the
\nBombay\tPublic Trusts Act, 1950 as extended to the  area  of
\nVidharbha has jurisdiction to hold an inquiry under  section
\n19  of\tthat  Act  in spite of a  previous  finding  by\t the
\nRegistrar under the Madhya Pradesh Public Trusts Act, 30  of
\n1951  that  the\t trust in question was not  a  public  trust
\nwithin the -meaning of the latter Act.\tThe facts leading to
\nthe writ petition may briefly be set out.\n<\/p>\n
In October 1953, one Jaferbhai claiming to be a\t beneficiary
\napplied under s. 5 of the M.P. Act to the Registrar that the
\ntrust  known as Mehdibaug founded in Nagpur in 1891 and\t its
\nproperties  which were and are admittedly in  possession  of
\nand  managed  by  the  appellant was  a\t public\t trust.\t  As
\nrequired by section 5(2) of that Act -the Registrar directed
\nthat  a\t proclamation  in respect of  the  said\t application
\nshould\tbe  published in the next issue of  Madhya  Pradesh’
\nGazette.   The\tinquiry held by the Registrar  ended  in  an
\norder dated November 11, 1955 whereby be held that the trust
\nwas  not  public  trust.   Though  the\tRegistrar  gave\t his
\naforesaid  finding he did not cause an entry thereof  to  be
\nmade  in the register maintained by him under the  Act.\t  On
\nNovember 1, 1956 as a result of the reorganisation of States
\nVidharbha  was merged in the then Bombay State.\t The  Bombay
\nlegislature  thereafter\t passed\t the  Bombay  Public  Trusts
\n(Unification  Amendment)  Act, 1959 and\t by  a\tnotification
\ndated  February 1, 1961 passed thereunder the Bombay  Public
\nTrusts\tAct  1950 was extended to the  Vidharbha  area.\t  On
\nMarch 2, 1962, respondents 2 to 5 filed an application under
\nsection\t 19  of the Bombay Act, 1950  before  the  Assistant
\nCharity\t Commissioner for an inquiry as to whether the\tsaid
\ntrust  was  a public trust.  The  appellant  contended\tthat
\nsince  the  trust was already declared not to  be  a  public
\ntrust under the M.P. Act the Assistant Charity\tCommissioner
\nwas precluded from holding the inquiry under the Bombay Act.\n<\/p>\n
113<\/span><\/p>\n
On  September  6, 1962, the Assistant  Charity\tCommissioner
\nrejected that contention.  Thereupon the appellant filed the
\naforesaid  petition  in the High Court.\t The High  Court  as
\nstated\tabove  dismissed  the  petition\t holding  that\t the
\nAssistant Charity Commissioner had jurisdiction to hold\t the
\ninquiry.  It is this order which is impugned in this appeal.
\nIn  view  of the controversy between the parties as  to\t the
\neffect of certain provisions of the Bombay Act 1950 and\t the
\nM.P. Act of 1951 it becomes necessary to briefly notice some
\nof the relevant provisions of the two Acts.  Section 2(4) of
\nthe M.P. Act defines public trust” as meaning an express  or
\nconstructive  trust  for a public, religious  or  charitable
\npurpose and includes a temple etc. or any other religious or
\ncharitable endowment and a society formed for a religious or
\ncharitable purpsose.  Sub-section 5 of that section  defines
\n“register”  as\tmeaning\t a register  maintained\t under\tsub-
\nsection\t 2 of section 3 of the Act.  Section  3(2)  provides
\nthat  the  Registrar should maintain a\tregister  of  public
\ntrusts\tand such other books and registers and in such\tform
\nas   may  be  prescribed.   Section  4\tprovides   for\t the
\nregistration of public trusts and lays down that the working
\ntrustee of every public trust should apply to the  Registrar
\nfor  its  registration by an application  in  which  certain
\nparticulars therein mentioned have to be set out.  Section 5
\nprovides  that on receipt of such an application or upon  an
\napplication  made by any person having interest in a  public
\ntrust  or  on his own motion, the Registrar  shall  make  an
\ninquiry\t in the prescribed manner for  ascertaining  amongst
\nother  things  whether\tthe trust in question  is  a  public
\ntrust.\tSub-section 2 of section 5 as aforesaid provides for
\ngiving\ta public notice of the inquiry proposed to  be\tmade
\ninviting  all persons interested in the public\ttrust  under
\ninquiry\t to  prefer objections, if any, in respect  of\tsuch
\ntrust.\t Under section 6 the Registrar on completion of\t the
\ninquiry has to record his findings with reasons therefor  as
\nto  the\t matters set out in section 5(i) and  under  section
\n7(1)  he has to cause entries to be made in the register  in
\naccordance  with  his  findings and has to  publish  on\t the
\nnotice board of his office the entries so made.\t Sub-section
\n2 of section 7 reads as under:\n<\/p>\n
\t      “The  entries  so made shall, subject  to\t the
\n\t      provisions  of  this Act and  subject  to\t any
\n\t      change  recorded under any provision  of\tthis
\n\t      Act  or a rule made thereunder, be  final\t and
\n\t      conclusive.”\n<\/p><\/blockquote>\n
Section 8 provides that any working trustee or person having
\ninterest in a public trust or any property found to be trust
\nproperty,  aggrieved by any finding of the  Registrar  under
\nsection\t 6  may,  within six months from  the  date  of\t the
\npublication  of the notice under sub-section (1) of  section
\n7,  institute a suit in a civil court to have  such  finding
\nset aside or modified.\tSub-section 3 provides
\n114<\/span>
\nthat on the final decision of the suit, the Registrar shall,
\nif  necessary, correct the entries made in the\tregister  in
\naccordance with such decision.\n<\/p>\n
It is clear from the provisions of section 8 that though the
\nentries made by the Registrar are final and conclusive\tthat
\nfinality  is subject to the decision of the court in a\tsuit
\nchallenging  the  findings of the Registrar.  The  cause  of
\naction for such a suit is thus the finding of the  Registrar
\nand  not the entry.  It is manifest that section 7  requires
\nthe  making of the entry and its notification in order\tthat
\nthe  findings  given by the Registrar are recorded  and\t are
\ngiven  publicity so that an aggrieved party whether he is  a
\nworking trustee or a person interested in the trust may file
\na suit within the prescribed time.  Under section 35 of\t the
\nAct the State Government framed rules prescribing inter alia
\nfor the maintenance of certain registers.  Under the Act and
\nthe said Rules the Registrar had to maintain four registers,
\nviz. (1) a register ,of public trusts, (2) a register of the
\nproperties  of\tpublic trusts, (3) a  register\trelating  to
\nimmovable  properties  belonging  to the trusts\t and  (4)  a
\nregister  of decisions of courts relating to public  trusts.
\nThese  being the only registers prescribed either under\t the
\nAct  or\t the  said  rules there was  no\t obligation  on\t the
\nRegistrar to maintain any other register or book.
\nThe  Bombay  Act,  1950 defines a public trust\tto  mean  an
\nexpress or constructive trust for either a public, religious
\nor charitable purpose or both and includes a.temple, a math,
\na  waqf,  a dharmada or any other  religious  or  charitable
\nendowment  and\ta society formed either for a  religious  or
\ncharitable  purpose  or for both and  registered  under\t the
\nSocieties  Registration Act, 1860.  Section 18 provides\t for
\nregistration  of public trusts and is substantially  in\t the
\nsame  terms  as\t section  4 of the  M.P.  Act.\t Section  19
\nsimilarly  provides  for  an inquiry  for  ascertaining\t the
\nmatters set out therein which are again in the same terms as
\nin section 5 of the M. P. Act.\tThough the definition of the
\npublic\ttrust in the Bombay Act is not exactly in  the\tsame
\nterms  as  that\t in the M.P. Act the contents  of  both\t are
\nsubstantially the same.\t In any event it is not the case  of
\nthe  respondents that that which is not a public trust or  a
\nproperty belonging to a public trust under the M. P. Act has
\nbeen  made  a public trust or a property belonging  to\tsuch
\ntrust under the Bombay Act.  The inquiry under both the Acts
\nand  its  scope are therefore the same.\t Section 86  of\t the
\nBombay\tAct  inducted  in the Act by Bombay Act\t 6  of\t1960
\ncontains both repeal and saving clauses.  Under sub-sections
\n1 and 2 read with Bombay Act 6 of 1960 the M.P. Act of\t1951
\nstands repealed.  Sub-section 3 which is a saving  provision
\nprovides that the repeal or cessation of the Acts under sub-
\nsections 1 and 2 shall not in any way affect:\n<\/p>\n
115<\/span><\/p>\n
\t      “(a) anything duly done or suffered  under the
\n\t      laws  hereby  repealed  or  ceasing  to  apply
\n\t      before the said date ;\n<\/p><\/blockquote>\n
\t      (b)   any\t right, title, interest,  obligation
\n\t      or  liability  already  acquired,\t accrued  or
\n\t      incurred\tbefore the said date under the\tlaws
\n\t      hereby repealed or ceasing to apply ;\n<\/p><\/blockquote>\n
\t      (c) any legal proceedings or remedy in respect
\n\t      of such right, title, interest, obligation  or
\n\t      liability.”\n<\/p><\/blockquote>\n
Two  contentions  were raised by the appellant in  the\tHigh
\nCourt in support of his petition.  First, that the Registrar
\nunder  the  M.P. Act having found that the trust was  not  a
\npublic trust and six months having expired from the date  of
\nhis  finding that finding became final, that a right  within
\nthe  meaning of cl. (b) of section 86(3) of the\t Bombay\t Act
\nvested\tin  the appellant and that therefore  the  Assistant
\nCharity\t Commissioner  was  not\t competent  to\treopen\tthat
\nfinding\t and start an inquiry abrogating his said right\t and
\n(2) that it was obligatory on the Registrar to make an entry
\nin the register of public trusts maintained by him and\tthat
\nsince he had not made such an entry the inquiry held by\t him
\nwas  not  completed; that that being so the  inquiry  was  a
\npending proceeding saved by section 86(3) and therefore\t the
\nonly  remedy which respondents 2 to 5 had was to proceed  in
\nthat  proceeding by calling upon the Registrar to  make\t and
\nnotify\tsuch  entry and if necessary to file  a\t suit  under
\nsection\t 8  of the M.P. Act challenging that  finding.\t The
\nHigh Court rejected both these contentions.  The High  Court
\nheld  that the M.P. Act did not confer any finality  to\t the
\nRegistrar’s  finding  and  that\t under\tthat  Act   finality
\nattached  to an entry made by the Registrar in the  register
\nof  public  trust.  It also held that when  the\t Registrar’s
\nfinding\t was a negative one it was not incumbent on  him  to
\nmake any entry as the only register he was enjoined upon  to
\nmaintain was the one prescribed by the Act.  The rules\tmade
\nunder  the Act not having prescribed any other\tregister  or
\nbook  and the only register prescribed by the Act being\t the
\nregister of public trusts it was not obligatory upon him  to
\nenter a finding that the trust in question was not a  public
\ntrust.\t No  such  entry having been  made  no\tright  under
\nsection\t 86(3)\tof the Bombay Act vested  in  the  appellant
\nwhich  would bar a fresh inquiry under the Bombay Act.\t The
\nHigh  Court further held that there being no ,obligation  on
\nthe Registrar to make such a negative entry it could not  be
\nsaid   that  the  proceedings  before  him  was\t a   pending
\nproceeding   -saved  under  section  86(3).    No   finality
\ntherefore was given to the finding of the Registrar that the
\ntrust  was  not a public trust.\t As regards the\t suit  under
\nsection\t 8  of the M.P. Act, the High Court held that  on  a
\ntrue  interpretation of sections 5, 6, 7 and 8 of  that\t Act
\nthe  suit  contemplated\t was  a\t suit  for  the\t purpose  of
\ncorrecting  an entry made by the Registrar and that no\tsuch
\nentry having been made
\n116<\/span>
\nno  such suit lay and consequently respondents 2 to 5  could
\nnot have filed a suit under that section.\n<\/p>\n
As aforesaid the preamble of the M.P. Act shows that the Act
\nwas enacted to regulate and to make better provision for the
\nadministration of public, religious and charitable trusts in
\nthe  then  State of Madhya Pradesh.  With that end  in\tview
\nsection 5 of that Act provides for an inquiry to be held  by
\nthe Registrar for ascertaining among other things whether  a
\ntrust  under  inquiry is a public trust or  not.   A  public
\nnotice\tof  such an inquiry was provided for  under  section
\n5(2) in order to enable persons interested in such trust  to
\nparticipate  therein.\tSections  6 and 7  enjoin  upon\t the
\nRegistrar to, record his finding.  Such a finding may either
\nbe  that the trust is a public trust or it is not.   Section
\n7(1)  enjoins  upon him to cause entries to be made  in\t the
\nregister  “in accordance with the findings recorded  by\t him
\nunder section 6”, and he is to publish the entries when made
\nin  the\t register.  The register prescribed no\tdoubt  is  a
\nregister of public trusts.  If the finding of the  Registrar
\nis  that a particular trust is not a public trust,  does  he
\nnot have to make an entry of his finding in the register  or
\nhas  he\t to  make an entry in that register  only  when\t his
\nfinding is a positive one that the trust is a public  trust?
\nIt will be noticed that there is nothing in section 7(1)  to
\nshow  that  he\tis required to make an\tentry  only  if\t the
\nfinding\t is  in\t the affirmative.  On the  other  hand\tsub-
\nsection\t 1  of section 7 expressly provides  that  he  shall
\ncause  entries\tto be made in accordance with  the  findings
\nrecorded by him under section 6. Section 6 shows that he has
\nto record his findings and the reasons therefor whatever the
\nfindings are, whether in the affirmative or in the negative.
\nSince  entries\tunder  section\t7(1)  are  to  be  made\t  in
\naccordance with such findings, either positive or  negative,
\nit  follows  that entries have to be  made  irrespective  of
\nwhether the trust is found to be a public trust or not.\t  To
\nsay that he is required to make an entry of finding only  if
\nthe  finding  is that the trust is a public trust  would  be
\ncontrary  to  the express language of sections 6 and  7\t and
\nwould  unnecessarily curtail the language and the  scope  of
\nthe  two sections.  This construction is also  supported  by
\nsection\t 8. Under that section, though it is the entry\tmade
\nunder s. 7 which has been given finality a right of suit  is
\nconferred on both the working trustee and all persons having
\ninterest  in the trust or any property belonging to  it\t and
\nwho  is\t aggrieved ‘by any finding’.  The section  no  doubt
\nprovides that such a suit has to be filed within six  months
\nfrom  the  date of the publication of the entry.   But\tthat
\nprovision  is clearly one fixing limitation.  That does\t not
\nmean  that the suit is to set aside the entry.\tThe  section
\nin  so\tmany terms states that such a suit would be  to\t set
\naside  the finding given by the Registrar and where  such  a
\nfinding is set aside the Registrar has to correct the  entry
\nmade  in the register in accordance with his findings.\t The
\ncause of section for such a suit thus is the finding and not
\n117<\/span>
\nthe  entry which is merely consequential.  It  is  therefore
\nnot  riot  to  say that a suit cannot be  filed\t unless\t the
\nRegistrar  has\tmade the entry.\t The  legislature,  besides,
\ncould not have left the right to file a suit to the mercy of
\nthe  Registrar\twho may or may not make the  entry.   It  is
\nequally\t not  correct to say that the Registrar has  not  to
\nmake  an entry if his finding is in the\t negative.   Suppose
\nthe  Registrar\tin a given case gives his finding  that\t the
\ntrust in question is not a public trust and does not make an
\nentry  on the ground that the register maintained by him  is
\nthe  register of public trusts and not ,of trusts which\t are
\nnot public trusts.  What is a person interested in the trust
\nor its properties to do if he is aggrieved by that  finding?
\nDoes  it mean that he has no remedy by way of a suit?\tThat
\nsurely\tcannot be the meaning to be given to sections 7\t and\n<\/p>\n
8. If the making of the entry is the condition precedent for
\nsuch  a\t suit such a person would have no remedy of  a\tsuit
\nunder section 8. It is precisely to avoid such a result that
\nthe  section provides in explicit language that any  person,
\naggrieved  by the finding and not the entry, has a right  to
\nfile  a suit and to have such a finding set  aside,  whether
\nthe finding is positive or negative.  There is nothing in s.
\n8  which  restricts the right of a suit in cases  where\t the
\nfinding\t is  in the affirmative.  If that  was\tso,giving  a
\nright  to sue to a person interested in the trust  would  be
\nsuperfluous as he would never be aggrieved by a finding that
\nthe trust is a public trust.  The High Court was, therefore,
\nin error when it held that the Registrar was not obliged  to
\nmake  the entry as his finding was in the negative.  In\t our
\nview,  reading sections 5, 6, 7 and 8 of the M.P. Act it  is
\nclear  that the Registrar is enjoined upon to make an  entry
\nin the register of public trusts irrespective of whether his
\nfinding\t is in the affirmative or in the negative.  For\t the
\nentry  he has to make is the entry “in accordance  with\t his
\nfinding” whatever that finding is.\n<\/p>\n
As  regards the second contention urged before it, the\tHigh
\nCourt observed that if it was obligatory on the Registrar to
\ncause  an  entry  to be made in the  register  even  if\t the
\nfinding was negative, the fact that he had not made such  an
\nentry  would not deprive the appellant of his right  and  in
\nthat event it would have held that the proceeding before the
\nRegistrar was still pending and respondents 2 to 5 would  in
\nthat  case have to have recourse to the M.P. Act.   But\t the
\nHigh Court on the ground that there was no obligation on the
\nRegistrar  to make the entry rejected this contention.\t Let
\nus  see\t whether there was justification in  the  contention
\nthat the inquiry is still pending and that respondents 2  to
\n5 have to proceed under that Act and not under s. 19 of\t the
\nBombay Act.\n<\/p>\n
Mr.  Desai  for\t the appellant relied  on  subsection  3  of
\nsection\t 86 and urged that all the three  sub-clauses,\t(a),\n<\/p>\n
(b)  and (c) apply to the present case.\t He urged  that\t the
\ninquiry before the Registrar was a thing duly done under the
\nM.P.  Act  and\twas therefore saved,  that  the\t Registrar’s
\nfinding had become final on the expiry of six
\n118<\/span>
\nmonths from the date of that finding and its finality vested
\na  right in the appellant which is saved by the\t sub-section
\nand  lastly that the legal proceeding, that is the  enquiry,
\nwas still pending and in spite of the cessation of the\tM.P.
\nAct, was saved.\t He contended that a fresh inquiry therefore
\ncould not be held as the proceeding before the Registrar was
\nstill pending and the competent authority to proceed with it
\nwas   the   Registrar\tand  not   the\t Assistant   Charity
\nCommissioner.  The Assistant Charity Commissioner was there-
\nfore  precluded\t from  holding the  impugned  inquiry.\t Mr.
\nChatterjee,  on the other hand, argued that no right can  be
\nsaid  to  have\taccrued\t to the\t appellant  as\tno  finality
\nattached  to  the  Registrar’s finding,\t an  entry  of\tthat
\nfinding\t not having been made by the Registrar.\t  There\t was
\nalso no question of any legal proceeding being saved as\t the
\nproceeding saved is the one in respect of a right, title  or
\ninterest vested in a party.  Therefore, sub-cls. (b) and (c)
\naccording  to him would not in any case apply.\t As  regards
\nsub-cl. (a) he argued that the inquiry before the  Registrar
\nwas  over so soon as he gave his finding and therefore\tthat
\ninquiry also cannot be said to have been saved.
\nThe words “anything duly done” in sub-cl. (a) are very often
\nused by the legislature in saving clauses such as we have in
\nsection 86 (3).\t Section 6 of the General Clauses Act,\t1897
\nalso provides that unless a different intention appears\t the
\nrepeat\tof  an Act would not affect anything  duly  done  or
\nsuffered there-under.  The object of such a saving clause is
\nto  save  what has been previously done\t under\tthe  statute
\nrepealed.   The result of such a saving clause is  that\t the
\npre-existing law continues to govern the thing done before a
\nparticular date from which the repeal of such a pre-existing
\nlaw  takes  effect.  In Universal Imports  Agency  v.  Chief
\nController<\/a>(l)  construing  the words “things done”  used  in
\npara  6 of the French Establishments (Application  of  Laws)
\nOrder, 1954, this Court held that on a proper interpretation
\nthe  expression\t “things done” was comprehensive  enough  to
\ntake in not only the things done but also the effect of\t the
\nlegal  consequences flowing therefrom.\tThe inquiry held  by
\nthe  Registrar under the M.P. Act was indisputably “a  thing
\nduly  done”  under  that Act.  The inquiry  and\t its  result
\nhaving been saved by section 86 (3) (a) they continue to  be
\ngoverned by the M.P. Act in spite of its ceasing to apply in
\nVidarbha.  As we have already held it was obligatory on\t the
\nRegistrar  to  have  made an entry of  his  finding  in\t the
\nregister  of public trusts maintained by him under that\t Act
\nthough\tthe  finding  was that the trust was  not  a  public
\ntrust.\t If any one was aggrieved by that finding  he  could
\nhave  made  the Registrar to cause an entry to be  made\t and
\nthereafter file a suit to set aside the finding and have the
\nentry  corrected.  Respondents 2 to 5 would be such  persons
\nas  they  claim\t to  be interested  in\tthe  trust  and\t are
\ntherefore persons aggrieved by that finding and
\n(1) [1961] 1. S.C.R. 305.\n<\/p>\n
119<\/span><\/p>\n
interested  in\tchallenging it.\t The  contention  that\tthat
\ninquiry\t was completed is not correct because the  Registrar
\nhad yet to make the entry of his finding which he was  bound
\nto make under section 7 of that Act.That being the position,
\nthe inquiry is saved by sub-cl.(a) of  section 86(3) and  it
\nis  still pending and is governed by  the  M.P.Act.  In\t the
\nresult a fresh inquiry under   the  Bombay Act\t  while\t the
\nproceeding  under  the\tM.P. Act is still  pending  was\t not
\ncompetent   and\t the  Assistant\t Charity  Commissioner\t was
\nprecluded  from\t entertaining it.  In this view\t it  is\t not
\nnecessary  to consider Mr. Desai’s contention  that  clauses\n<\/p>\n
(b) and (c) also apply to the present case.  Mr.  Chatterjee
\nhowever\t drew our attention to a decision of the High  Court
\nof  Bombay  in Ramalal v.  Charity,  Commissioner(1).\tThat
\ndecision  cannot assist the respondents as the effect  of  a
\nsaving\tclause\tsuch as we have in section 86(3) or  in\t the
\nBombay General Clauses Act was not considered there and\t the
\nquestion  of the proceeding being a pending one was  neither
\nraised nor considered.\tFor the reasons aforesaid it is\t not
\npossible  to  sustain  the order passed by  the\t High  Court
\ndismissing the petition.\n<\/p>\n
We therefore set aside the order, allow the appeal and\tmake
\nthe  petition absolute.\t The respondents will pay the  costs
\nof the appellant both here and in the High Court.\n<\/p>\n
R. K. P. S.\t\t\t  Appeal allowed.\n(1) 63 Bom. L.R. 418.\n120<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hasan Nurani Malak vs Assistant Charity Commissioner, … on 22 August, 1966 Equivalent citations: 1967 AIR 1742, 1967 SCR (1) 110 Author: Shelat Bench: Shelat, J.M. PETITIONER: HASAN NURANI MALAK Vs. RESPONDENT: ASSISTANT CHARITY COMMISSIONER, NAGPUR & ORS. DATE OF JUDGMENT: 22\/08\/1966 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-137586","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHasan Nurani Malak vs Assistant Charity Commissioner, ... on 22 August, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hasan-nurani-malak-vs-assistant-charity-commissioner-on-22-august-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hasan Nurani Malak vs Assistant Charity Commissioner, ... on 22 August, 1966 - 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