Karnataka High Court
Mallari S/O Ramchandra Nimbalkar vs Laxman Raju Pujari on 22 June, 2026
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MFA No. 2424 of 2006
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R
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 22ND DAY OF JUNE 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
MISCELLANEOUS FIRST APPEAL NO.2424 OF 2006 (BPT)
BETWEEN:
MALLARI S/O. RAMCHANDRA NIMBALKAR
AGED ABOUT 63 YEARS, OCC: AGRICULTURE,
R/O. JALALPUR, TQ: RAIBAG, DIST: BELGAUM.
...APPELLANT
(BY SRI.RAMACHANDRA A.MALI, ADVOCATE)
AND:
1. LAXMAN RAJU POOJARI
AGED MAJOR.
2. MARUTHI PARSHURAM POOJARI
AGED MAJOR.
Digitally signed
by SAROJA 3. RAJU SADASHIV POOJARI
HANGARAKI AGED MAJOR.
Location:
HIGH COURT
OF 4. APPASAHEB B.CHOUGULE
KARNATAKA
DHARWAD AGED MAJOR.
BENCH
5. MARUTHI DHONDIBA GOOSARWADE
AGED MAJOR.
6. RAMAKANTH RAMCHANDRA POOJARI
AGED MAJOR.
7. UDAY RAMACHANDRA POOJARI
AGED MAJOR.
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8. SUMITRABAI PARASHRAM POOJARI
AGED MAJOR.
9. PRAKASH PARASHARAM POOJARI
AGED MAJOR,
ALL ARE R/O. JALALPUR, TQ: RAIBAG,
DIST: BELGAUM.
10. STATE OF KARNATAKA
REP. BY ITS SECRETARY,
DEPT. OF MUZARAI AND
HINDU RELIGIONS INSTITUTION
AND CHARITABLE ENDOWMENTS, A.V.ROAD,
CHAMARAJPET, BANGALORE-18.
...RESPONDENTS
(BY SRI.SHIVAKUMAR S.BADAWADAGI, ADVOCATE FOR R1;
SRI.RAVIKUMAR D.GOKAKAKAR, ADVOCATE FOR R7;
SRI.ABHISHEK MALIPATIL, HCGP FOR R10;
NOTICE TO R2, R4 TO R6, R8, R9 ARE SERVED;
APPEAL AGAINST R3 STAND DISMISSED V.O.DATED 21.02.2011)
THIS MFA IS FILED UNDER SECTION 72(4) OF THE BOMBAY
PUBLIC TRUSTS ACT AGAINST THE ORDER DATED 8.11.2005
PASSED IN MISC. APPLICATON NO.96/2001 ON THE FILE OF THE
II ADDL. DISTRICT JUDGE BELGAUM, DISMISSING THE MISC.
APPLICATION FILED UNDER SECTION 72(1) OF BOMBAY PUBLIC
TRUST ACT TO SET ASIDE THE ORDER PASSED BY THE CHARITY
COMMISSIONER, BELGAUM, IN APPEAL NO.15/97 DATED
19.5.2001.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE GEETHA K.B.
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ORAL JUDGMENT
The appellant/petitioner has filed the present appeal
under Section 72(4) of Bombay Public Trust Act, 1950 (for
short ‘BPT Act‘) challenging the order dated 08.11.2005
passed in Misc.App.96/2001 on the file of II Additional
District Judge, Belgaum, by confirming the order dated
19.05.2001 passed in Appeal No.15/97 on the file of
Charity Commissioner, Belgaum who has reversed the
order dated 21.06.1997 on Inquiry petition No.277/94 on
the file of Assistant Charity Commissioner, Belgaum.
Parties would be referred with their names and ranks
as they were before the Assistant Charity Commissioner in
Inquiry petition No.277/94 for convenience and clarity.
The Inquiry petition under Section 18 of BPT Act was
filed before the Assistant Charity Commissioner, Belgaum
which is registered at Inquiry Petition No.277/94, praying
for registering Sri Yallamma Devi Trust as Public Trust.
Initially, 33 trustees’ names are mentioned in this petition.
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Later four more names are added by amending the
petition.
2. Opponent No.1-Raju Sadashiv Poojari has filed
inquiry petition, which is registered in inquiry petition
No.419/1994, praying for registering his name as ‘trustee’
on the ground that his family was Archak of the temple;
Opponent Nos.4 and 5-Maruthi Dondiba Goosarwade and
Ramachandra Kashappa Poojari have filed the petition
which is registered in inquiry petition No.38/1995, praying
for registering the temple as private trust and to register
their names as ‘trustees’.
3. Respondent No.6 contested the petition.
4. The case of petitioners in Inquiry petition is that
Sri Yallamma Devi Temple at Jalalpur, Raibag taluk,
Belgaum District is an ancient temple. Devotees of said
temple thought of getting it registered as ‘public trust’ and
to have an elected Managing Committee to look after its
religious and other developmental activities. A meeting
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was held on 01.03.1994 of devotees of the temple and by-
laws were adopted on that meeting and a committee of 33
persons named in the application was elected for a period
of 5 years. Afterwards, applicants amended the petition
and included four more names i.e., the hereditary poojaris
of the temple also as trustees at serial Nos.34 to 37. Their
contention is that they are the hereditary ‘Poojaris’ and
thus their name should be entered as trustees on
registration of the temple as ‘Public trust’.
5. Maruthi Poojari and others (Opponent Nos.1 to
4) have filed objections to this petition wherein they have
taken contention that the petition is not maintainable.
There is no committee of 33 persons as alleged in the
application. There is no scope and provision to register any
committee relating to said temple. The alleged committee
never formed and there was no meeting on any alleged
date 01.03.1994 and no notice to him or to others.
Furthermore, formation of committee is not required. The
applicant has not endowed with any property. These 33
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persons have not endowed with any property and have not
created any trust. Thus, the application is not
maintainable.
6. They further took contention that opponent
Nos.1 and 2 are Poojari trustees of the temple. Their
ancestors had been the trustees from generation to
generation. They are hereditary trustees and render daily
pooja, archana and hold annual fair in honour of the deity.
They have filed an application for registration of said
temple showing them as trustees in inquiry No.419/1994.
The village Jalalpur was inam. Its Inamdar Shrimant
Konerao alias Annasaheb Deshpande used to manage the
affairs of the village temples and to appoint Poojaris or
Archakas. He appointed the grandfather of these
opponents-Gundu, whose mother is Lagamavva Jogi. A
Kabulayat executed in favour of Gundu on two-anna
General Stamp of Kolhapur on 05.06.1939. Thus, Gundu
continued regular daily pooja services, festival fair and
maintenance of the temple/devastan. His samadhi is in
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temple premises. After lifetime of Gundu, his sons
Sadashiva and Parashuram, the respective fathers of
opponent Nos.1 and 2 succeeded and managed the temple
affairs, rendered daily pooja services and annual festival
fair. Their houses are at VPC Nos.199/1 and 199/2
situated on the eastern side of the temple within the
vicinity of temple. Princely State of Kolhapur merged in
Indian Union and Inams abolished. The articles of deity i.e.
gold, silver, brass were in their possession, but it was not
safe to keep with them; hence those articles were used to
be keeping before the elders of the village for safe
custody. Sadashiva died about 12 years back and then
opponent No.1 succeeded and rendering poojas and also
performing management of the temple. The village elders
nine in number including serial No.6-Raosaheb Satagouda
Patil and serial No.22-Appasaheb Dattu Hawaldar have
passed receipt under their signatures on 28.08.1988 in
favour of Parashurama Gundu Poojari, the father of
opponent No.2 for having received those articles. Thus,
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every year articles are given for performing annual fair
and afterwards they were kept in safe custody with elders
of the village. During 1990-Ramachandra Kashappa
Poojari (opponent No.5) and Laxman Ramu Poojari
(opponent No.6) started disturbing the pooja services and
in receiving offerings by opponent No.1 and father of
opponent No.2. Hence, O.S. No.201/1990 is filed by father
of opponent No.2-Parashuram Gundu Poojari before the
Court of Munsiff, Raibag. The temporary injunction is
granted on 20.06.1990. Thereafter, the Court passed
order on 20.01.1991 directing parties to maintain status
quo. The said suit is still pending. Parashuram died and his
son i.e., opponent No.2 is brought on record. Even the
tomb of said Parashuram is in the temple premises.
Hence, prayed for dismissal of the petition No.277/1994
with costs and to allow the Petition No.419/1994.
7. Opponent No.5. Ramachandra Kashappa Poojari
filed his objection statement wherein he contended that he
has filed the suit for permanent injunction against Sri
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Laxman Ramu Poojari (Opponent No. 6) and others and
the said matter went up to Hon’ble Apex Court and his suit
was dismissed with some observation. Based on it, Sri
Laxman Ramu Poojari has filed suit for partition against
him in OS No.94/1991 and it is pending. After the death of
Parashurama Poojari, his sons Maruthi Parashurama
Poojari (opponent No.4), Nagu Parashurama Poojari and
Prakash Poojari are interested in creating trust in respect
of Sri Yallamma Devi, deity of Jalalpur. They have no right
over the temple or performing pooja. He opposes the
application given by Maruthi Parashuram Poojari and
others.
8. Opponent No.6-Laxman Ramu Poojari has filed
his objections, wherein he contended that he is the Poojari
of Sri Yallamma Devi deity. Formerly his ancestors were
Poojaris of said temple. After death of his father-Ramu, he
and his brothers are performing pooja by accepting the
offerings without any obstacle by anyone. There is dispute
between themselves and his uncle Ramachandra
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(Opponent No.5) and the matter went up to this Court. In
view of the order passed by this Court in RSA
No.729/1986 dated 20.09.1990, he along with his brothers
has filed O.S. No.94/1991 against his uncle-Ramachandra
for partition in respect of performance of pooja of said Sri
Yallamma Devi temple. The applicants are strangers to
said temple and are in no way concerned to his family.
Thus, they have no right or interest over the temple. They
have filed fake applications just to harass him and his
family members. Hence, prayed for dismissal of the
petition.
9. After filing the objection statements, inquiry
was conducted before the Assistant Charity Commissioner
as required under Section 19 of the BPT Act. After
conducting such inquiry, the Assistant Charity
Commissioner came to the conclusion that Sri Yallamma
Devi temple is an ancient temple and even though
endowment to the temple is not forthcoming, it is a public
trust and allowed the petition No.277/1994 and permitted
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33 trustees to become trustees, but dismissed the
contention of other four trustees on the ground that the
persons rendering their services and receiving benefit
cannot be named as trustees as per definition of Section
2(18) of the BPT Act. Further, there is long standing
dispute amongst deceased opponent No.5, opponent Nos.1
and 2 and others in respect of performing exclusive rights
of Pooja. He has also narrated the suit and appeal filed
between opponents and OS No.201/1990 and OS 94/1991,
which were pending at the time of passing said order.
Considering these disputes and further holding that
beneficiaries cannot be named as ‘trustees’, rejected their
contention to implead them as ‘trustees.’
10. Aggrieved by the same, opponent No.6-Laxman
Ramu Poojari has filed the appeal before The Charity
Commissioner, Belgaum against the order passed in
inquiry No.277/1994 and also against the order passed in
inquiry No.419/1994 and Inquiry No.38/1995. In that
appeal, he has taken contention that the Assistant Charity
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Commissioner ignored to note that Sri Yallamma Devi
Temple is the personal property of appellant/opponent
No.6 and his uncle deceased Ramachandra Poojari. He
further contended that in RSA No.729/1986, it is held that
it is the personal property of these two persons.
11. Appellants in Appeal No.15/1997 i.e., Raju
Sadashiv Poojari and Maruthi Parashuram Poojari have
partially challenged the impugned order on the ground
that their names are also to be included as ‘trustees’. But,
the Assistant Charity Commissioner has rejected the
same. Hence, for that limited purpose they have also filed
the appeal.
12. The Charity Commissioner has made an
observation that Assistant Charity Commissioner has not
considered the fact that no material is produced to show
that on which date the temple became ‘Public trust’; he
made an observation that merely because there is large
numbers of devotees to the temple, it cannot be called as
‘public temple’ and a ‘Public trust’. Said finding is further
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based on the observation made by this Court in RSA
No.729/1986 holding that there is no material to prove
that the property in question is the trust property neither
public nor private; he would further make an observation
that none of the parties referred to any endowment.
Further, the applicant and 33 named trustees in the
application are only devotees of the temple and not
archaks of the temple. There is no evidence to show that
the property was debottar in the sense that there is any
dedication to the deity by any person. Further, by quoting
the observation of this Court in RSA NO.729/1986 that
plaintiff and defendants and their ancestors were
performing pooja in the temple and had acquired such
right to perform pooja and appropriate the offerings.
Under these circumstances, Sri Yallamma Devi temple
could not be called as ‘Public Trust’. With these
observations, the Charity Commissioner has allowed the
appeal and dismissed the Inquiry petition No.277/1994.
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13. Aggrieved by the order of the Charity
Commissioner, the appellant/petitioner has filed
Miscellaneous Application No.96/2001 before the II
Additional District Judge, Belgaum and opponent Nos.1
and 2 have filed Miscellaneous Application No.95/2001.
Both the applications were clubbed together. In the said
case, the District Judge based on the observation made by
this Court in RSA No.729/1986, has also dismissed both
the applications and confirmed the order passed by the
Charity Commissioner.
14. Aggrieved by the same, the petitioner in inquiry
petition No.277/1994 has filed the present appeal.
15. This matter was heard in detail by this Court
and then based on the observations made in RSA
No.729/1986; this appeal was dismissed upholding the
order passed by the Charity Commissioner and District
Judge.
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16. The same was challenged before Hon’ble Apex
Court in Civil Appeal No.11073/2025 at SLP (C.
No.26685/2017). The Hon’ble Apex Court has allowed the
appeal and remanded the matter to this Court by making
an observation that:
“We have perused the orders passed at different
levels by different authorities, and the impugned order
passed by the High Court. We are inclined to hold that
the decision rendered by the High Court in the earlier
proceedings would have no bearing in the present
matter. The issue for consideration therein was of
poojari rights. Even assuming there is a finding qua the
nature of the property, the same being incidental, will
have no bearing on the present matter.
In view of the aforesaid settled position of law, we
are inclined to set aside the impugned order and remit
the matter to the High Court for fresh consideration.
While doing so, the High Court shall take into
consideration the effect of the report submitted by the
Tahsildar and the stand taken by the state that the
property belongs to the Gram Panchayat.
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Accordingly, the impugned order stands set aside and
the matter stands remitted to the High Court for fresh
consideration.”
17. After such remand, the trial Court records was
called from respective Courts. Only the TCR from II
Additional District Court, Belgaum is received. The TCRs of
Charity Commissioner and Assistant Charity Commissioner
were not received. After passing judgment in this case,
they were returned to learned AGA; but it appears that
they were misplaced; even after several reminders,
learned AGA could not produce the same. However, Xerox
copies of the petition, objections of both parties and
evidence of both parties before Assistant Charity
Commissioner are available in the file and both parties
have no objection to consider the same and to pass the
judgment. Hence, the file is reconstructed based on the
available Xerox documents and then heard arguments of
both sides.
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18. Heard learned counsel for appellants Sri
Ramachandra Mali and learned counsel for respondent
No.1 Sri Shivakumar S. Badawadagi.
19. Learned counsel for appellant Sri Ramachandra
Mali would submit that the Inquiry petition No.277/1994 is
the only petition now pending for consideration. The other
two petitions No.38/1995 and No.419/1994 were
dismissed and no appeal is preferred before this Court.
20. Learned counsel for appellant would further
submit that ‘Public Trust’ and ‘Temple’ are defined under
Section 2(13) and 2(17) of the BPT Act.
21. Learned counsel for appellant would further
submit that the plain reading of these two definitions
would make it clear that Sri Yallamma Devi Temple,
Jalalpur, Raibag taluk, Belgaum district is an ancient
temple; all Hindus can perform pooja in said temple as of
right. Hence, Sri Yallamma Devi temple comes within the
definition of Section 2(17) of BPT Act. Thus, it included in
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Section 2(13) of the BPT Act and thus it is a ‘Public trust’.
Sri Yallamma Devi temple is a place of public religious
worship and dedicated for the benefit of or used as of right
by Hindu community as a place of public religious worship.
In this regard, he places reliance on the evidence of PW1.
Further, learned counsel for appellant places reliance on
the judgment of Hon’ble Apex Court in the case of Bala
Shankar Mama Shankar Bhattiji and Ors. Vs. Charity
Commissioner Gujarat State decided on 17.08.1994
and further would submit that the judgment passed in RSA
No.729/1986 is only about the rights of archaks to
perform pooja in the temple; incidentally, it is observed in
that case that it is neither the case of parties that the
temple is public or private trust. Present appellant and
respondent Nos.1 to 4 were not parties in that case. It
was only interse between respondent No.5 & 6. Further,
while remanding the matter, the Hon’ble Supreme Court
clarified this point. Hence, prayed for allowing the appeal.
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22. Learned counsel for respondent No.1 Sri
Shivakumar S. Badawadagi would submit that the place in
which temple is situated is the property of ancestors of
respondent Nos.5 and 6. Respondent No.6 has taken this
plea at the time of filing the appeal before Charity
Commissioner. Materials are produced to show that this
property was standing in the name of grandfather of
respondent No.6. Under these circumstances, merely
because publics are making their offerings to the deity, it
cannot be called as ‘Public trust’. In this regard, learned
counsel for respondent places reliance on the judgments of
Hon’ble Apex Court in Radha, Kantha, Deb and Another
versus the Commissioner of Hindu Religious
Endowments, Orissa and another, Satyanarayanji
Maharaj Virajman, Mandir Sathnarayan Dharma
Shala and others versus Rajendra Prasad Agarwal
and others and also the Judgment of Division bench of
this Court in Shankar Bhat dead by LRs versus Ganesh
Krishna Dikshit dead by LRs and others. Hence,
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submitted that the petition is not maintainable in law and
pray for dismissal of the appeal by confirming the order
passed by the Charity Commissioner upheld by the District
Court.
23. Heard Learned HCGP Shri Abhishek Malipatil for
respondent No.10.
24. Having heard arguments of both sides, verifying
the appeal papers and available constructed records of the
trial Courts, the point that arise for consideration is:
“Whether finding of the Assistant Charity
Commissioner that the Sri Yallamma Devi Temple,
Jalalpur, Raibag taluk, Belagaum District is the ‘Public
trust’ is proper and it is not appreciated in the appeal and
in the miscellaneous petition?”
25. The finding on this point is in AFFIRMATIVE
for the following :
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REASONS
This is the petition filed under Section 18 of theBombay Public Trust Act, 1950 praying for creation of
public trust in respect of Sri Yallamma Devi Temple.
26. Before discussing the facts of the case, the
judgments relied by both sides requires to be looked into.
Learned counsel for opponent No.6 places reliance on the
judgment of Co-ordinate Bench of this Court in Rudrappa
Channamallappa Patil Vs. Kadeppa Dareppa Patil1
decided on 13.02.1967 wherein at paragraph Nos.8 to 11
held as follows:
“8. The question is whether we could say
that the provision for the employment of the
Income from a part of the property belonging
to the family for a religious purpose brings into
being an express or constructive trust for
either a public, religious or charitable purpose
or any other religious or charitable endowment
such as the one of which the definition speaks.
This is the restricted investigation which we
should make, since in the case before us we
find no temple, math, wakf, a dharmada or
1
AIR 1967 KANT 239
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society for a religious or charitable purpose or
for both and registered under the Societies
Registration Ad 1860.
9. The definition speaks of three
categories of public trusts One is an express or
constructive trust for religious or charitable
purposes or both The second consists of
temples, maths, wakf dharmadas or any other
religious or charitable endowments In the third
are included societies formed for a religious or
charitable purpose or both and registered
under the Societies Registration Act 1860.
10. Although there was no discussion by
either the District Judge, or by the Assistant
Charity Commissioner or Charity Commissioner
of any other question than whether there was a
public trust for a religious or charitable
purpose, it becomes necessary for us by
reason of the comprehensive definition
contained in the Act, to ask ourselves whether
there is a trust in the case before us falling
within the first or the second category since it
is obvious that there is none inside the third.
11. It can be within the first category if
there is an express or constructive trust for a
public, religious or charitable purpose or for
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both. It would be in the second if we could say
that there is any other religious or charitable
endowment. There would be a public trust
within his first category only if a religious or
charitable purpose is a public purpose. That is
what the definition expressly says. The second
part of the definition says that a public trust
includes ‘a temple, a math, wakf, a dharmada
or any other religious or charitable
endowment.’ But in has to he remembered that
a math, temple and wakf are defined by
Section 2 of the Act and those definitions make
it clear that the beneficiaries of those
institutions are either the general public or a
section thereof. Although in the context of the
words ‘any other religious or charitable
endowment’ occurring in the definition, we do
not find the word ‘public’, it is obvious that ‘any
other religious or charitable endowment’
becomes a public trust only if it is ejusdem
generis and the religious or charitable
endowment is for a public purpose. It is clear
that a private endowment even if it be for a
religious or charitable purpose is not within the
definition, since it is clear from the earlier part
of the definition that the emphasis is not upon
the religious or charitable nature of the trust,
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but is upon the benefit it confers upon the
general public or a section thereof.”
27. Learned counsel for respondent No.1 would rely
upon the judgment of Division Bench of this Court in the
case of Shankarbhat Vs. Ganesh Krishna Dixit and
another in MFA No.102281/2016 decided on 04.04.2017.
The facts and circumstances of the said case are entirely
different from the facts and circumstances of the present
case.
28. Learned counsel for respondent No.1 would
further places reliance on the judgment of the Hon’ble
Apex Court in Radhakanta, Deb and another Vs. The
Commissioner of Hindu Religious Endowments,
Orissa2 wherein at paragraph No.14 held as follows:
“14. Thus, on a conspectus of the authorities
mentioned above, the following tests may be laid
down as providing sufficient guidelines to
determine on the facts of each case whether an
endowment is of a private or of a public nature:
2
AIR 1981 SC 798
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(1) Where the origin of the endowment cannot be
ascertained, the question whether the user of the
temple by members of the public is as of right;
(2) The fact that the control and management
vests either in a large body of persons or in the
members of the public and the founder does not
retain any control over the management. Allied to
this may be a circumstance when the evidence
shows that there is provision for a scheme to be
framed by associating the members of the public at
large;
(3) Where, however, a document is available to
prove the nature and origin of the endowment and
the recitals of the document show that the control
and management of the temple is retained with the
founder or his descendants, and that extensive
properties are dedicated for the purpose of the
maintenance of the temple belonging to the
founder himself, this will be a conclusive proof to
show that the endowment was of a private nature;
(4) where the evidence shows that the founder of
the endowment did not make any stipulation for
offerings or contributions to be made by members
of the public to the temple, this would be an
important intrinsic circumstance to indicate the
Private nature of the endowment.”
29. In the aforesaid judgment, the Hon’ble Apex
Court clearly held that where the origin of the endowment
cannot be ascertained, the question whether the user of
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the temple by members of the public is as of right is
relevant to decide whether it is a ‘temple’ as defined under
Section 2(17) of BPT Act. This is the judgment based on
Orissa Hindu Religious Endowments Act, 1951. The
definition of ‘public trust’ and ‘temple’ in the BPT Act and
in Orissa Hindu Religious Endowments Act, 1951 is similar
in nature.
30. Thus, the above ruling is aptly applicable to the
present case. In the aforesaid case, the Hon’ble Apex
court based on earlier judgments, narrated the
circumstances under which, the court can hold the place
as ‘temple’. The first and foremost circumstance narrated
in said case is where the origin of the endowment cannot
be ascertained, the question whether the user of the
temple by members of the public is as of right is the point
to be determined to decide said place as ‘temple’.
31. In this regard, learned counsel for appellant
relies upon the judgment of the Hon’ble Apex Court
between Bala Shankar Mama Shankar Bhattjjee and
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others Vs. Charity Commissioner, Gujarat State3,
wherein the question arose is whether Kalika Mataji
Temple is a public trust. In said case, it is held as follows:
“The question emerges whether the Kalika Mataji
temple is a public Trust. The High Court after
exhaustively subjecting the entire material
evidence to close scrutiny concluded thus:
(1) It (Kalika Mataji temple) is very ancient temple
more than thousand years old.
(2) It origin is lost in antiquity. It is not possible to
rely upon the evidence of witness
Chandramukharam and witness witness- Pavinbhi
that about a thousand years ago their ancestor
Devshanker had the vision of Mataji at that place
and that he had constructed that temple for his
own worship. They cannot have knowledge of
events which took place a thousand years ago. We
are, there fore, of the opinion that so far as the
origin of the temple is concerned it is lost in
antiquity. The temple is situated on a hill were
there is no permanent human habitation.
(3) It is situated about a mile away from
Champaner which is the nearest village.
3
AIR 1995 SC 167
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(4) Pilgrims in thousands visit every year this
temple for Darshan, for performing their individual
rituals and for discharging themselves from the
vows (Badhas) which they take for due fulfillment
of their desires, They do so on account of their faith
in Mataji.
(5) The visitors visit the temple without let or
hindrance. Therefore, no evidence of any one
having been obstructed in his visit to temple for
Darshan. There is evidence on record regarding
offerings from the visitors to Mataji not only in
small coins but also in big things, as we shall
shortly show.
(6) The temple has been shown in Govt. records as
belonging to Mataji and the respondents have been
described as it Vahivatdars and poojaris.
(7) There is cash allowance paid from the State
Treasury to maintain it. It has been paid to the
deity. The respondents are only its recipients in
their capacities as the Poojaries or Acharyas of the
temple.
(8) The evidence of witness Chandrakukharam
shows that separate of the income of the temple
have been maintained.
(9) Sanad No. 19 to which we have referred in the
foregoing paragraphs of This judgment, shows that
Seindias in their capacity as sovereign Rules had
interest in that temple and that they had passed on
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their obligation in respect of the temple to the
British Govt. by the Treaty concluded between
Them and the British Govt. in 1860.
(10) The properties attached to the temple of
Kalika Mataji have been shown in all Govt. records
in the name of Mataji and not in the names of the
respondents. Obviously this factor leads to the
inference that the immovable properties standing in
the name of Mataji were gifted or donated to the
deity.
(11) The evidence further discloses that the deity
has three sources of income (a) Cash allowance
from the State Treasury, (b) Offerings by the
devotees and visitors and (c) Income from
immovable properties given over to and in the
name of Mataji.
In view of all these factors we have no doubt in our
mind that temple of Kalika Mataji is ‘temple’ within
the meaning of 5s2(17) of the Bombay Public
Trusts Act, 1950 and is therefore, a public trust as
defined in Section 2(13) of the said Act. We record
this conclusion on the strength of the fact that
taking into account the nature of public user of the
temple and other attendant factors the members of
the Hindu Community have been using it as of
right. In a given case public user as of right may
not amount to implied dedication. It depends upon
the facts of each case. But so far as the facts of the
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present case are concerned, no doubt it is left in
our mind that on an analysis of the evidence
discussed by as above not only the user by the
evidence discussed by us above not only the user
by members of the Hindu Community of the said
temple has been as of right but that it amounts to
implied dedication for the benefit of the Hindu
Community.
…………..
A bare conjoint reading of the two definitions would
show that the definition of public trust is an
inclusive one bringing within its ambit, an express
or constructive trust for which a public religious or
charitable purpose or for both which includes a
temple, a math, a wakf, a charmada or any other
religious or charitable endowment and a society
formed either for religious or charitable purpose or
for both and a registered society under
society Registration Act. A public place by whatever
designation is temple when it is used as a place of
public religious worship. It must be dedicated to or
for the benefit of or used as of right by the Hindu
Community or any section thereof, as a place of
public religious worship.
…………………..
Deoki Nandan v. Murlidhar, [1956] SCR 756, is a
leading judgment of this court by a Bench of four
Judges. In that case the facts found were that one
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sheo Ghulam, a pious childless Hindu, constructed
Thakurdwara of Sri Radhakrishnaji ii Balasia village
of District Sitapur, He was in management of the
temple till his death. He executed a ‘Will’
bequeathing all his properties to the temple and
made provisions for its proper manage-ment. The
question arose whether the temple was dedicated
to the public and whether the temple was a public
or private temple. This court laid down that the
issue whether the religious endowment is a public
or a private is a mixed question of law and facts,
the decision of which must be taken on the
application of the legal concepts of public and
private endowment to the facts found and it is open
to consideration of this court. The distinction
between a private or a public endowment is that
whereas in the former the beneficiaries are specific
individuals, in the letter they are the general public
or a class thereof. An idol is a juristic person
capable of holding properties. The properties
endowed for the temple yest in it, but the idol has
no beneficial interest in the endowment. The true
beneficiaries are its worshipers. On facts it was
found that the temple was a public temple……
…………….
An idol is a juristic person capable of holding
property. The property endowed to it vests in it but
the idol has no beneficial interest in the
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endowment. The beneficiaries ate the worshipers.
Dedication may be made orally or can be inferred
from the conduct or from a given set of facts and
circumstances. There need not be a document to
evidence dedication to the public. The
consciousness of the manager of the temple or the
devotees as to the public character of the temple;
gift of properties by the public or grant by the ruler
or Govt; and long use by the public as of right to
worship in the temple are relevant facts drawing a
presumption strongly in favour of the view that the
temple is a public temple. The true character of the
temple may be decided by taking into consideration
diverse circumstances. Though the management of
a temple by the members of the family for a long
time, is a factor in favour of the view that the
temple is a private temple it’is not .conclusive. It
requires to be considered in the light of other facts
or circumstances. Internal management of the
temple is a mode of orderly discipline or the
devotees are allowed to enter into the temple to
worship at particular time or after some duration or
after the head man leaves, the temple are not
conclusive. The nature of the temple and its
location are also relevant facts. The right of the
public to worship in the temple is a matter of
inference.
………………….
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Thus, we are of the considered view that Kalika
Mataji temple is a public trust within the meaning
of s.2(13); and public temple under s.2(17) of the
Act and the High Court rightly relegated the enquiry
in respect of other temple and-we feel it not
expedient to record any finding in that behalf. The
appeal is accordingly dismissed with costs
quantified at Rs.20,000.”
32. Section 2(13) of the BPT Act defines “public
trust”. It reads as follows:
“2(13) “public trust” means an express or
constructive trust for either a public religious or
charitable purpose or both and includes a
temple, a math, a wakf, [church, synagogue,
agiary or other place of public religious worship,]
[a dharmada] or any other religious or
charitable endowment and a society formed
either for a religious or charitable purpose or for
both and registered under the Societies
Registration Act, 1860;”
33. Thus, it is an inclusive definition and it includes
the temples. According to this definition, all temples are
public trusts. Further, “Temple” is defined under Section
2(17) of the BPT Act. It reads as follows:
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2(17) “temple” means a place by whatever
designation known and used as a place of public
religious worship and dedicated to or for the
benefit of or used as of right by the Hindu
community or any section thereof as a place of
public religious worship;
34. The plain reading of this section and based on
the principles noted in the above said judgments cited
supra, to constitute a “temple” one has to establish that
i) it shall be a place of public religious worship; OR
ii) it shall be a place dedicated to Hindu community or
any section thereof; OR
iii) it shall be for the benefit of Hindu community or
any section thereof; OR
iv) the Hindu community or any section thereof may
use it as of right.
35. With this background, the evidence of both
parties is to be examined to come to the conclusion that
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whether Yallamma Devi Temple is a “Temple” as per this
definition.
36. PW1 in his evidence has deposed that Sri
Yallamma Devi Temple is situated at property No.201/1.
He has stated that there are 4 families performing
archane, poojas in this temple on hereditary basis.
37. It is not in dispute that Sri Yallamma Devi
Temple is a public religious worship place. In the objection
statements of all the opponents, this fact is not disputed.
In the petition filed before the Assistant Charity
Commissioner, it is specifically stated that in property
No.201/1 the temple is in existence. The temple is being
run with the donations given by the public as offerings. In
the objection statement of respondent No.6, it is
specifically stated that he and his brothers have been
performing pooja by accepting the offerings without any
obstruction by anybody. In the objection statement of
opponent No.5, it is stated that his ancestors were
performing pooja of the temple. He being one of the
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archaks of the temple, he shall be made as one of the
trustees of the temple. Opponent Nos.1 to 4 in their
objections have taken contention that opponent Nos.1 an.
2 are the successors of one Gundu who was appointed by
the then Inamdar of the temple, as Archak. According to
him earlier this Jalalpur Village was governed by Raibag
Mahal in the then princely state of Kolhapur. The entire
village is an Inam land. It is Inam that Shrimant Konerao
alias Annasaheb Deshpande was managing the affairs of
the Village Devastanam and appointed archaks. Inamdar
appointed the grandfather of opponent Nos.1 and 2-Gundu
as archak of the temple. Kabulayath is also executed in
that regard in 2 annas stamp paper in the year 1939.
Gundu was performing pooja and after his death his
children were performing pooja and now these opponent
Nos.1 and 2 are performing pooja of the temple.
38. The Assistant Charity Commissioner, the
Charity Commissioner and the District Judge in their order
have clearly come to the conclusion that Sri Yallamma
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Devi temple is an ancient temple. There is no dispute by
any one on this point.
39. It is opponent No.6 has taken contention in his
appeal for the first time that property No.201/1 is the
property of his ancestors. However, there is no such plea
taken at the initial stage.
40. It is to be noted here that in RSA No.729/1986,
incidentally it is held that none of the parties contend that
it is a public or private trust. Based on said findings of this
Court in the said RSA which is filed only in respect of who
has to perform pooja of the temple, the Charity
Commissioner and II Additional District Judge have come
to the conclusion that there is no public trust in the
present case and thus, the finding of Assistant Charity
Commissioner was reversed.
41. The Charity Commissioner in his order made an
observation that under Section 114 of the Evidence Act,
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the ancient temple cannot be presumed as public Trust
and held that Sri Yallamma Devi Temple is not public trust.
42. It is to be noted here that all the courts below
have not made any efforts to examine the definition of
‘temple’ as per the BPT Act and whether ‘temple’ comes
under the ambit of public trust.
43. It is to be noted here that RSA No.729/1986 is
filed challenging the judgment and decree in
R.A.No.14/1986 on the file of Civil Judge, Gokak. R.A. No.
14/1986 was filed challenging the judgment and decree in
O.S.No.43/1982 on the file of Munsiff, Raibag. The said
suit was between the present opponent Nos.5 and 6 only
in respect of the question that who has to perform pooja in
the temple. Both of them contended in that case that they
exclusively have a right to perform pooja. Ultimately it is
held that opponent Nos.5 and 6 were having common
ancestor. Said common ancestor was performing pooja
and thus, both of them are having right to perform pooja.
Even in the present case as per the objections of the
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opponent No.6, he is claiming only pooja rights or right of
archaks in the temple and he has not claimed any right of
ownership over the property in question.
44. Except opponent Nos.5 & 6 of present petition,
other parties to present proceedings are not parties in that
appeal. Even on that ground also said finding of this court
is only incidental and not on core issues of said case.
Hence, said finding is not a binding precedent to decide
the present appeal.
45. Only in the first appeal before Charity
Commissioner, he had taken the plea that this is his
exclusive property and in that regard he has produced one
property extract of 1990-91, wherein name of opponent
No.6 is shown in the owner cum possessor column. But,
initially, no such plea was taken. Further, no suit is filed
to declare him as absolute owner of the property in
question. Further, no evidence is adduced to substantiate
his said contention in the first appeal or before the District
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Judge. Furthermore, in this case already the government
became one of the respondents.
46. In this case and also before Hon’ble Supreme
Court, the Tahsildar of the Government has sworn to an
affidavit stating that this is the property standing in the
name of temple. Except this one property document of
1990-91, in all other documents produced in this case, it is
name of Sri Yallama Devi Temple is shown as owner cum
possessor in the property extract.
47. Hence, merely based on one property extract of
one year, opponent No.6 cannot claim that he is the
absolute owner of this property. That is not the contention
raised by him in Inquiry proceedings and also in earlier
proceedings between him and respondent No.5 i.e. in
O.S.No.43/1982 and subsequently in the suits of 1990 and
1991 between him and opponent No.5 for the relief of
partition. The relief of partition was claimed only in respect
of performing pooja and not on the property in question.
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Hence, the above said contention of opponent No.6 is not
acceptable one.
48. With this background the evidence produced by
both parties is to be looked into. None of the respondents
dispute the nature of temple, but they dispute only about
performing poojas in the temple that who has to perform
it. There is some material produced before the Assistant
Charity Commissioner that opponent Nos.1 and 2 are the
successors of Gundu. Gundu was performing pooja and
was appointed as archak of the temple for some period.
Opponent Nos.5 and 6 have also produced some material
to show that their common ancestor was also performing
pooja of the temple. It is not in dispute that they were
performing pooja as hereditary archaks. Under these
circumstances, all opponent Nos.1, 2 and 5 and 6 are the
performing poojas of the temple.
49. At the time of arguments, learned counsels for
appellant and opponent No.1 fairly conceded that original
opponent Nos.1, 2, 5 and 6 were the archaks of the
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temple and they were performing poojas on rotation basis.
Hence, it is not in dispute that these four persons were
performing poojas by accepting the offerings given by the
public towards deity and thus, the public at large of Hindu
community were worshipping the temple.
50. The Assistant Charity Commissioner in his order
has discussed that opponents while performing poojas
were keeping gold and silver valuable articles with some of
the trustees named in the petition and those valuable
articles will be given to archaks at the time of jatra or
special poojas or some festivals and after performing such
jatra, special pooja or festivals, they would be once again
given back to the same custody with some of the trustees
named in the inquiry petition. These facts clearly
established that even though there is no named public
trust, the activities of the temple are being carried out
with the assistance of elders of the village. Hence, by any
stretch of imagination it cannot be said that this is not the
temple.
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51. Thus, it is the place of public religious worship;
further, it is the place dedicated to Hindu community for
their benefit and all Hindus are using this place as of right
to offer pooja. All Hindus have right to enter the temple
and to offer their pooja to the deity in the temple.
52. In the citation of Hon’ble apex court Rudrappa
Channamallappa Patil‘s Case cited supra, the definition
of public trust speaks three categories;
i) express or constructive trust for religious or
charitable purposes or both;
ii) temples, maths, wakf, dharmadhas or any other
religious or charitable endowments ;
iii) society formed for religious or charitable purpose
or for both.
53. As discussed above, the District judge, the
Charity Commissioner and Assistant Charity
Commissioner, have not discussed this fact. However it is
necessary for this court to verify whether Sri Yallamma
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Devi Temple would fall under any one of these categories.
Unequivocally, Sri Yallamma Devi Temple would not fall in
first and third category.
54. Admittedly, there is no endowment produced by
either party to say that the temple is endowed. However,
it is an admitted fact that it is an ancient temple; under
these circumstances, use of the temple by members of the
public Hindus is as of right or not is to be decided to
determine said place as temple or not.
55. Admittedly, the publics are having every right
to enter the temple and offer their poojas.
56. As discussed above, the property attached to
the temple bearing No.201/1 was shown in the name of
deity in government records. In Bala Shankar Mama
Shankar Bhattiji‘s case cited supra, the properties
attached to the temple were shown in the name of deity in
government records. The same is in the present case. In
that case also BPT Act is applicable and Section 2(13) and
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(17) were discussed in length and finally held that it is the
temple and included under the definition of public trust. In
the above case, the Hon’ble Supreme Court affirmed the
finding of the High Court of Gujarat.
57. In nutshell, it is established that Sri Yallamma
Devi Temple is an ancient temple; place of public religious
worship; dedicated to Hindu community for their benefit
and Hindu community people are having right to use it as
of right for their offerings to the deity and worship the
deity. Thus, the ingredients of Section 2(17) of the BPT
Act are fulfilled. Thus, Sri Yallamma Devi Temple comes
under the definition of ‘Temple’ as per Section 2(17) of
BPT Act.
58. Section 2(13) of the BPT Act is an inclusive
definition. It includes temples. If ‘Temple’ as per Section
2(17) of the BPT Act is in existence, then it will be a public
trust as per Section 2(13) of the BPT Act.
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59. Accordingly, the Assistant Charity
Commissioner has passed a reasoned order accepting that
there exists public trust.
60. As discussed above, the Charity Commissioner
and District Judge have dismissed the appeals only on the
ground that there is finding in RSA No.729/1986 that there
is no existence of public or private trust. However, that
finding is given only as an ancillary in the proceedings
between defendant Nos.5 and 6, which is not the subject
matter of the present case. The present petition is filed to
form public trust in the name of Sri Yallamma Devi Trust
and it is stated that there are 33 trustees to the temple.
All of them have accepted the by-laws and after accepting
by-laws, these petitioners appointed their president who
has filed the present petition under Section 18 of BPT Act.
After receipt of said petition, the Assistant Charity
Commissioner has conducted inquiry as contemplated
under Section 19 of the BPT Act and finally held that even
though there is no document to show that this is an
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endowment, but admittedly it is an ancient temple and
does held that it is public trust. There is no dispute that
temple in question is an ancient temple.
61. The Assistant Charity Commission has not
permitted the archaks of the temple i.e., opponent Nos.1,
2, 5 and 6 to become trustees of the temple by
interpreting Section 2(18) of BPT Act that they are
beneficiaries and thus they cannot be called as trustees.
62. In this regard reading of this definition of
trustee as held under Section 2(18) of BPT Act is very
much relevant. It reads as follows:
“2(18) “trustee” means a person in whom
either alone or in association with other persons,
the trust property is vested and includes a
manager.”
63. This definition does not say that the beneficiary
is to be excluded from becoming trustee. The persons who
manage the affairs of the religious trust are entitled to
become trustees. The trustee is a person who holds legal
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ownership or possession over the subject of the trust and
who will be bound to allow the beneficial enjoyment or use
of the property.
64. It is to be noted here that archaks are always
performing poojas on behalf of devotees. They will be
called as middlemen between the devotee and the deity. If
they perform the pooja with great devotion and then that
would be helpful to the public at large. If they are also
made as trustees, definitely it would help the overall
development of the temple because they are the pillars of
the temple. Admittedly since from the time of ancestors of
opponent Nos.1, 2, 5 and 6 they are performing poojas in
the temple on rotation basis. If there is a small dispute
between them in respect of who has to perform pooja that
itself cannot be a ground to deny them to become
trustees. There is no rule that archak of the temple cannot
be trustee of the temple.
65. But the Assistant Charity Commissioner failed
to accept poojaris and trustees of the temple. Archaks who
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are performing poojas in temple are permitted to become
trustees. As opponent Nos.1 and 2 are from one common
descendant. Opponent Nos.5 and 6 are from another
common descendant.
66. The devotees themselves cannot directly offer
prayers before the idols which are consecrated and placed
in the sanctum. So, they approach the temple for worship.
Only when the poojaris /Archaks performs the pooja with
true inner devotion can the devotees successfully offer
those prayers to the deity of ignite the same spiritual
energy in the devotees. Thus making the poojaris/Archaks
a trustee of the temple.
67. Hence, from one common descendant’s family
there will be one Archak as trustee i.e, in between
opponent Nos.1 and 2, there will be one trustee. Likewise,
in between opponent Nos.5 and 6 there will be another
trustee.
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68. Thus, the order passed by the Assistant Charity
Commissioner is a reasoned order to consider Sri
Yallamma Devi temple as ‘public trust’; but his finding that
archaks cannot be trustees is not proper. However, the
order of the Charity Commissioner and the District Judge
are erroneous and requires to be set aside.
69. Accordingly the point under consideration is
answered in affirmative and this Court proceeds to pass
the following:-
ORDER
i) The appeal is allowed by setting aside the
order dated 8.11.2005 passed in Misc. App.
No.96/2001 on the file of the II Addl. District Judge
Belgaum, and order dated 19.5.2001 passed in
Appeal No. 15/97 on the file of Charity
Commissioner, Belgaum and confirming the order
dated 21.06.1997 in Inquiry Petition No. 277/94 on
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the file of Assistant Charity Commissioner,
Belgaum.
ii) The trustees named in inquiry petition
along with one person from the family of opponent
Nos.1 and 2 and one person from the family of
opponent Nos.5 and 6 are the trustees of the
temple.
iii) The trust by name Sri Yallamma Devi
Temple is ordered to be registered as a Public
trust.
iv) As per by-laws of the trust, the trustees
can be appointed for the period mentioned in the
by- laws.
Sd/-
(GEETHA K.B.)
JUDGE
HMB- Up to para 27
SSP-Para 28 to 48
HMB- Para 49 to end
CT:VH
List No.: 1 Sl No.: 25
