# 14 S.C.R. 396 VINODKUMAR M. MALAVIA ETC v. MAGANLAL MANGALDAS GAMETI & ORS

- **Citation:** [2013] 14 S.C.R. 396
- **Court:** Supreme Court of India
- **Decided:** 2013-09-30
- **Case number:** Civil Appeal Nos.8800-8801 of 2013
- **Bench:** Surinder Singh Nijjar, Pinaki Chandra Ghose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-s-c-r-396-vinodkumar-m-malavia-etc-v-maganlal-mangaldas-gameti-ors-29172
- **Pages:** 34

## Headnote

Societies Registration Act, 1860 - ss. 5 and 13 - Bombay
C Public Trusts Act, 1950 - ss. 18, 36, 50A and 72 - Purported
unification of six churches including the First District Church
of the Brethren (FDCB) into a single entity, the Church of
North India (CNI) - Claim of appellants that unification of
FDCB with CNI resulted in dissolution of FDCB making CNI
o its legal successor and controller of its properties - Held: Not
tenable - The unification had no legal foundation whatsoever
-
FDCB was a religious society registered under the
Societies Registration Act and its property vested with a Trust
regulated by the BPTA - Procedure for dissolution of FDCB
E did not conform to requirements set out in s. 13 of the
Societies Registration Act and the procedure as laid down in
the BPT Act - In addition, there were evident lapses in the
formation of CNI - Since FDCB trust never stood dissolved,
the properties of the same did not vest with CNI - Merely by
F filing Change Reportls, CNI cannot claim a merger of
churches and thereby claim that the properties vested in the
Trust would vest in them - There was no tlissolution of the
society and further merger was not carried out in accordance
with the provisions of law.
G
First District Church of the Brethren ('FDCB'), an
offshoot of the 'Brethren Church' of USA, was a
registered religious society under the Societies
Registration Act, 1860 and also a registered as a public
H
396
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 397
GAMETI
trust in Gujarat, after enactment of the Bombay Public
A
Trusts Act, 1950 ('BPTA'). Change reports were filed by
'FDCB' to give effect to unification of six churches
including the FDCB into a single entity, the Church of
North India (CNI).
Dispute arose as to 1) whether FDCB was dissolved;
2) whether CNI was successor of FDCB and 3) whether
B
by mere merger of FDCB into various other Churches,
the properties were by rules and regulations of the
Society ipso facto vested in CNI, without having to C
perform any other legal obligation or formality.
The Civil Court Judge held that the FDCB had not
been dissolved as there was no proper proof of the
same; that, as a trust and society are creations of
statutes, they must be dissolved accordingly and the
D
question of merger is a factual one, wherein the merging
trust continues to exist unless specifically dissolved
under the statute; and furthermore, without following
Section 50A of the BPT A which deals with the dissolution
of trust, the FDCB property cannot be vested with CNI.
E
Thus, the Civil 'court Judge quashed and set aside the
order of the Charity Commissioner. The High Court
confirmed the order of the Civil Court.
In the instant appeals, the appellants contended that
under Articles 25 and 26 of the Constitution, they were
entitled to manage their affairs and the question of
unification of churches is a religious decision over which
F
the courts have no jurisdiction. Objections were raised
regarding the jurisdiction of the Charity Commissioner
and the courts impinging on the freedoms guaranteed
G
under Articles 25 and 26 of the Constitution. It was
alleged that a refusal to allow the change in trust nullifies
the choice exercised by the community in a matter which
is purely religio~Js, of faith and ecclesiastical; especially
H
398
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A considering the fact that the newly created entity follows
the same religion. Furthermore, the issue of estoppel was
raised in the light of the same in relation to the objections
to the unification raised by the respondents who had
earlier consented to the same.
B
c
The question for consideration before this Court was
whether the alleged unification of FDCB with CNI was
correct or not.
Dismissing the appeals, the Court
HELD:1. The unification has no legal foundation
whatsoever. The FDCB is a religious society registered
under the Societies Registration Act and its property vests
with a Trust regulated by the BPTA. As per the BPTA, a
0
public t

## Text

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A
B
[2013) 14 S.C.R. 396
VINODKUMAR M. MALAVIA ETC.
v.
MAGANLAL MANGALDAS GAMET! & ORS.
(Civil Appeal Nos.8800-8801 of 2013)
SEPTEMBER 30, 2013
[SURINDER SINGH NIJJAR AND
PINAKI CHANDRA GHOSE, JJ.]
Societies Registration Act, 1860 - ss. 5 and 13 - Bombay
C Public Trusts Act, 1950 - ss. 18, 36, 50A and 72 - Purported
unification of six churches including the First District Church
of the Brethren (FDCB) into a single entity, the Church of
North India (CNI) - Claim of appellants that unification of
FDCB with CNI resulted in dissolution of FDCB making CNI
o its legal successor and controller of its properties - Held: Not
tenable - The unification had no legal foundation whatsoever
-
FDCB was a religious society registered under the
Societies Registration Act and its property vested with a Trust
regulated by the BPTA - Procedure for dissolution of FDCB
E did not conform to requirements set out in s. 13 of the
Societies Registration Act and the procedure as laid down in
the BPT Act - In addition, there were evident lapses in the
formation of CNI - Since FDCB trust never stood dissolved,
the properties of the same did not vest with CNI - Merely by
F filing Change Reportls, CNI cannot claim a merger of
churches and thereby claim that the properties vested in the
Trust would vest in them - There was no tlissolution of the
society and further merger was not carried out in accordance
with the provisions of law.
G
First District Church of the Brethren ('FDCB'), an
offshoot of the 'Brethren Church' of USA, was a
registered religious society under the Societies
Registration Act, 1860 and also a registered as a public
H
396
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 397
GAMETI
trust in Gujarat, after enactment of the Bombay Public
A
Trusts Act, 1950 ('BPTA'). Change reports were filed by
'FDCB' to give effect to unification of six churches
including the FDCB into a single entity, the Church of
North India (CNI).
Dispute arose as to 1) whether FDCB was dissolved;
2) whether CNI was successor of FDCB and 3) whether
B
by mere merger of FDCB into various other Churches,
the properties were by rules and regulations of the
Society ipso facto vested in CNI, without having to C
perform any other legal obligation or formality.
The Civil Court Judge held that the FDCB had not
been dissolved as there was no proper proof of the
same; that, as a trust and society are creations of
statutes, they must be dissolved accordingly and the
D
question of merger is a factual one, wherein the merging
trust continues to exist unless specifically dissolved
under the statute; and furthermore, without following
Section 50A of the BPT A which deals with the dissolution
of trust, the FDCB property cannot be vested with CNI.
E
Thus, the Civil 'court Judge quashed and set aside the
order of the Charity Commissioner. The High Court
confirmed the order of the Civil Court.
In the instant appeals, the appellants contended that
under Articles 25 and 26 of the Constitution, they were
entitled to manage their affairs and the question of
unification of churches is a religious decision over which
F
the courts have no jurisdiction. Objections were raised
regarding the jurisdiction of the Charity Commissioner
and the courts impinging on the freedoms guaranteed
G
under Articles 25 and 26 of the Constitution. It was
alleged that a refusal to allow the change in trust nullifies
the choice exercised by the community in a matter which
is purely religio~Js, of faith and ecclesiastical; especially
H
398
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A considering the fact that the newly created entity follows
the same religion. Furthermore, the issue of estoppel was
raised in the light of the same in relation to the objections
to the unification raised by the respondents who had
earlier consented to the same.
B
c
The question for consideration before this Court was
whether the alleged unification of FDCB with CNI was
correct or not.
Dismissing the appeals, the Court
HELD:1. The unification has no legal foundation
whatsoever. The FDCB is a religious society registered
under the Societies Registration Act and its property vests
with a Trust regulated by the BPTA. As per the BPTA, a
0
public trust being religious in nature, may also be a society
under the Societies Registration Act. It is a well accepted
principle that a body created by a statute must conform
to the provisions of the regulating statute. In the present
case, the procedure for dissolution of FDCB has not
E conformed to the requirements set out in Section 13 of
the Societies Registration Act, 1860 and the procedure as
laid down in the BPT Act. Furthermore, the case of the
appellants is based on the resolutions and deliberations
which it has put on record in support of its claim of
dissolution and subsequent unification. However, as per
F the finding of the lower courts, no such resolution or
minutes of such deliberations comply with the procedure
as laid down in the statutes. All the material on record as
per the lower court only talks about amalgamation and
there is no reference to dissolution of FDCB as required
G under the Societies Registration Act. Resolution 70/08 on
which the case of the appellants is built whether
complying with or not with the requirements under the
SR Act, does not dissolve the FDCB Trust. Therefore, it
would be improper if the religious society being FDCB
H
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS
399
GAMETI
stands dissolved on the basis of the material produced
A.
before the lower court. [Para 12) [415-F-H; 416-A-O)
Vinod Kumar Mathurseva Ma/via & Anr. v. Magan/al
Mangaldas Gameti and Ors. 2006 (9) SCC 282: 2006 (2)
SCR 668; Church of North India v. Lavajibhai Ratanjibhai &
8
Ors. 2005 (10) SCC 760: 2005 (3) SCR 1037 - referred to.
2. The property of a Society under Section 5 of the
SR Act, if not vested in trustees, then only shall vest for
the time being with the governing body of such society.
The properties of FDCB vested with public trust. The
C
resolutions produced and the deliberations made in the
internal meetings of FDCB only talk about amalgamation
of FOCB with the other churches and the intent to
dissolve the society and the registered trust is not
conveyed and cannot be read into the same. On the
D
basis of these resolutions and deliberations, the claim of
the appellants that CNI is the successor of the property
of the FDCB, which vests with the registered trust, does
not hold good. [Para 13) [416-F; 417-C]
3. The alienation of movable property of the trust
E
without previous sanction of the Charity Commissioner
is barred under Section 36 of the BPTA. BPTA is a
complete code. The statute provides for a proper
procedure for the claimants to adopt for the transfer of
the property and the same has not been observed. The
F
case of the appellants is that the dissolution of the·
society automatically dissolves the trust and vests the
property of trust with CNI, designated as the successor
of the same which is based on the resolutions etc. placed
on record. However, the procedure for the amalgamation
G
of a trust scheme stemming out from Section 50A BPT A,
which is a complete code, has been disregarded.
Furthermore, as the statute has only provided for Section
50A, persons governed by the same must act within the
H
400
SUPREME COURT REPORTS
[2013) 14 S.C.R.
A four corners of the legislation and should not question
the legislative wisdom on the grounds that as certain
aspects have not been provided in a statute so they have
no bearing on them. [Para 14] [417-D, G; 418-A, G]
8
5. In addition to the above, there are evident lapses
in the formation of CNI. Firstly, it is alleged that CNI was
formed on November 26, 1970 post Resolution 70/08
dated February 17, 1970, however the same was sought
to be registered in 1980 and given registration with effect
from 1971. The same is contrary to the requirements as
C laid down in Section 18 of the BPTA which requires
registration of a public trust within three months of a
creation as per clause (b) of sub-section (4). The Act is
also silent about the registration with retrospective effect.
The second lapse which exists is that in 1976, the Church
.. D of North India Trust Association (CNITA) was formed
under the Indian Companies Act, 1956 and appointed as
the trustee of CNI; a trust allegedly existing since 1971
which succeeded FDCB in 1970 which was allegedly
dissolved and its annual meetings discontinued since
E 1971. A suit for declaration of CNI as the successor of
FDCB was filed in 1979 (held not to be maintainable in
Church of North India case). During the pendency of the
1979 suit, Change Report Nos. 44of1981 and 665of1981
were filed in 1980. This situation created a scenario where
F FDCB simply vanished after the 1970 resolutions and
who managed it~ properties till CNITA is an unresolv~d
question, identified by this Court in Church of North India.
The facts clearly show non-compliance with the
procedure under BPTA. The argument that as per Article
G 254 of the Constitution, the Societies Registration Act
overrides the BPTA or that the Societies Registration Act
and BPT A are in conflict, does not stand either, since both
the statutes are not in conflict with each other. On the
contrary, they are in consonance with each other
H
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 401
GAMETI
regarding the administration and regulation of public and
A
religious trusts. [Para 15] [419-A-F; 420-E-F]
6. The claim of the appellants that following
unification of FDCB with CNI after the purported
resolution resulted in the dissolution of FDCB making
8
CNI its legal successor and controller of its properties,
does not hold good and cannot be accepted. Since the
FDCB trust never stood dissolved, the properties of the
same will not vest with CNI. [Paras 16, 17] [420-G; 421-B]
7. The choices of the community herein are the
C
purported resolutions and deliberations. These
resolutions are an attempt to effect a change in
management and ownership of the FDCB trust properties
in a manner which is against the law of the land. The
respondents approached the Civil Court under Section
D
72(1) of the BPTA and the Civil Court correctly exercised
jurisdiction over the same. The' question regarding the
admissibility of evidence adduced before the Charity
Commissioner has been adequately addressed by the
High Court and there. is no reason to interfere with the
E
same. [Paras 19, 22 and 23] (421-G; 422-A; 426-B-C]
The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
AIR 1954 SC 282: 1954 SCR 1005; Rati/al Panachand
F
Gandhi & Ors. v. State of Bombay & Ors. AIR 1954 SC 388:
1954 SCR 1035 - held inapplicable.
R. V.E.
Venkatachala
Gounder
v.
Arulmigu
Viswesaraswami & V.P. Temple and Anr. 2003 (8) SCC 752:
2003 (4) Suppl. SCR 450 - referred to.
G
8. It is the duty of the society to take steps in
accordance with Section 13 of the SR Act for its
dissolution. Further unless the properties vested in -the
Trust are divest&d in accordance with the provisions of
H
402
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A the SR Act and in accordance with the BPTA, merely by
filing the Change Report/s, CNI cannot claim a merger of
churches and thereby claim that the properties vested in
the Trust would vest in them. It would only be evident from
the steps taken that the passing of resolutions is nothing
El
but an indication to show the intention to merge and
nothing else. In fact, the City Civil Court has correctly
held, which has been affirmed by the High Court, that
there was no dissolution of the society and further
merger was not carried out in accordance with the
c provisions of law. In these circumstances, the society and
the Trust being creatures of statute, have to resort to the
modes provided by the statute for its amalgamation and
the so-called merger cannot be treated or can give effect
to the dissolution of the Trust. In the matrix of the facts,
0 it is held that without taking any steps in accordance with
the provisions of law, the effect of the resolutions or
deliberations is not acceptable in the domain of law. The
question of estoppel also cannot stand in the way as the
High Court has correctly pointed out that the freedom
E guaranteed under the Constitution with regard to the faith
and religion, cannot take away the right in changing the
faith and religion after giving a fresh look and thinking at
any time and thereby cannot be bound by any rules of
estoppel. Therefore, the resolution only resolved to
accept the recommendation of joint unification but does
F not refer to dissolution. The High Court and the City Civil
Court rightly adjudicated on the matter in. question and
correctly set aside the order passed by the Charity
Commissioner. [Paras 25, 26] [428-C-H; 429-A-B]
G
Dhulabhai and Ors. v. The State of Madhya Pradesh and
Anr. 1968 (3) SCR 662 - referred to.
Case Law Reference:
2006 (2) SCR 668
referred to
Para 2
H
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 403
GAMETI
2005 (3) SCR 1037
referred to
Para 3
1954 SCR 1005
held inapplicable Para 19
1954 SCR 1035
held inapplicable Para 19
1968 (3) SCR 662
referred to
Para 22
2003 (4) Suppl. SCR 450 referred to
Para 23
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
8800-8801 of 2013.
From the Judgment & Order dated 23.04.2012 of the High
Court -of Gujarat at Ahmedabad in First Appeal Nos. 1535 &
1536 of 2009.
Mihir Joshi, K.V. Viswanathan, Megha Jani, Neha S.
Verma, Mehul Gupta, Deeptakirti Verma for the Appellant.
R.P. Bhatt, Shiv Mangal Sharma, M.I. Marchant, Gaurav
Khanna, Sitesh Narayan Singh, Abhinandini Sharma, Sharmila
Upadhyay, Hemantika Wahi, Shubhada Deshpande for the
Respondents.
The Judgment of the Court was delivered by
PINAKI CHANDRA GHOSE, J.1. Leave granted.
A
B
c
D
E
2. These appeals are directed against the common
judgment and order dated April 23, 2012 (in First Appeal Nos.
F
1535 and 1536 of 2009) passed by the High Court of Gujarat,
affirming the order dated February 3, 2009 passed by the City
Civil Court (in Civil Misc. Application Nos. 470 of 2008 and 630
of 2008). The City Civil Court set aside the order dated May
23, 2008, passed by the Charity Commissioner. The said G
adjudication was made by the Charity Commissioner pursuant
to the order passed by this Court in Vinod Kumar Mathurseva
Ma/via & Anr. v. Magan/al Manga/das Gameti and Ors. [2006
(9) SCC 282] (being Civil Appeal No. 1260 of 2006, arising
out of SLP (Civil) No. 24198 of 2005, decided on February 24,
H
404
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
2006) in an earlier ancillary dispute wherein this Court directed
the Charity Commissioner to adjudicate on all questions
pertaining to the merger of trust and other pending disputes as
expeditiously as possible. Thus, the Charity Commissioner
adjudicated on the objections against Change Report Nos. 44
B
of 1981 and 665 of 1981.
3. The facts of the case briefly are as follows :
3.1. The facts of the present case are not much in dispute
and the background of the same lies with the facts in the matter
C
adjudicated by this Court in Church of North India v., Lavajibhai
Ratanjibhai & Ors. (2005 (10) SCC 760] (being Civil Appeal
No. 9419 of 2003 as decided on May 3, 2005), therefore, the
detailed background of the parties and the organizations
involved has not been mentioned and only the facts pertinent
D to the dispute in question are stated.
3.2. The abovementioned Change Reports were· filed by
First District Church of the Brethren (hereinafter referred to as
'the FDCB') a registered religious society under the Societies
Registration Act, 1860 (hereinafter referred to as 'the SR Act')
E
bearing Registration No. 1202/44 and later re9'stered as public
trust in Gujarat bearing No.E-643/Bharuch, after the enactment
of the Bombay Public Trusts Act, 1950 (hereinafter referred to
as 'the BPTA') property of which is vested with its 'Property
F
Committee' and the Church of North India (hereinafter referred
to as 'the CNI'), Gujarat Diocese. The CNI is a public trust
registered by an application accepted on May 12, 1970 with
effect of registration being given from 1971 and the trust being
formed on November 29, 1970 with Registration No. D-17/
Ahmedabad.
G
3.3. These Change Reports were filed to give effect to the
unification of six churches which included the FDCB, an
offshoot of the 'Brethren Church' of USA (other Churches being
The Council of the Baptist Churches in North India, The Church
H of India, Pakistan, Burma and Ceylon, The Methodist Church
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 405
GAMETI [PINAKI CHANDRA GHOSE, J.]
(British and Australian Conference), The Methodist Church in
A
Southern Asia and The United Church of Northern India) into a
single entity, 'The Church of North India' (with the Gujarat
Chapter being managed by the Church of North India, Gujarat,
Diocese).
3.4. This unification is the result of a process which
commenced from 1929. The negotiation meetings commenced
from 1955 onwards which had representatives from the uniting
churches who discussed every aspect of the emerging entity.
B
A result of which was the Plan of Church Union in 1965 called C
the 4th Revised Edition in the form of a printed booklet
published by the Negotiating Committee and widely circulated
and deliberated by the uniting Churches which adopted the
same. The plan traced the historic background leading to the
creation of the CNI and dealt with all aspects of the same. Part11 of the same pertained to procedural details of the unification. D
The plan is a result of the negotiations through various meetings
convened in the years 1955, 1956, 1957, 1961, 1964 and
1970. The Managing Committee of the FDCB being the 'District
Committee' initially participated in these meetings as an
obser:ver, however, from 1956, it joined the negotiation process.
E
It is alleged that Resolution No. 70108 was passed on February,
17, 1970 pursuant to which the CNI was formed by merging the
six churches. FDCB being one of the six churches, discussed
the unification internally within its 21 Societies and put the same
to vote at different junctions and in the final decision, the
F
resolution was apprOVfi!d by 3/5th majority of the representatives
of the Governing Body. Allegedly, on November 29, 1970, the
FDCB merged with the other six churches to form CNI and
accepted the same as its legal continuation and successor and
vested with the CNI its rights, titles, claims and FDCB's G
interests together with its privileges and obligations.
3.5. In 1976, the Church of North India Trust Association
(hereinafter referred to as 'the CNITA') was formed under the
Indian Companies Act, 1956 and appointed as the trustee of H
CNI. It has been alleged that the annual meetings of the FDCB
406
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
were discontinued post 1971. That certain members which had
earlier given consent to Resolution 70/08 began to raise
objections that FDCB continued to exist. Subsequently, the
original plaintiff (Shri A.O. Patel) filed Civil Suit No. 72 of 1979
in the Court of the Civil Judge, Senior Division, Bharuch for a
B
declaration that FDCB has come to an end and that CNI is the
legal successor and continuation of the same. During the
pendency of the suit, CNI got itself registered retrospectively
and Change Report Nos. 44/81 and 665/81 were filed before
the Charity Commissioner to give effect to the changes
c resulting the unification. The aforementioned suit, after an
appeal before the District Judge, Bharuch went before the
Gujarat High Court as Second Appeal No. 303 of 1986, the
same was dismissed and the matter came up before this Court
as Church of North India v. Lavajibhai Ratanjibhai & Ors.
0
(supra) (In Civil Appeal No. 9419 of 2003, decided on May 3,
2005). Therein, the question which arose before this Court was:
whether Section 80 of the BPTA imposes a bar on the
jurisdiction of the Civil Court.
3.6. The present dispute, however, arises from objections
E
ari$ing out of the adjudication by the Charity Commissioner
dated May 23, 2008 regarding Change Report Nos. 44/81 and
665/81. The same proceeding commenced post the direction
of this Court in Vinod Kumar Mathurseva Ma/via & Anr. v.
Magan/al Mangaldas Gameti & Ors. (supra) (Being Civil
F
Appeal No. 1260 of2006, decided on f:ebruary 24, 2006). The
same arose out of 9rders dated October 6, 2005 and October
10, 2005, passed in First Appeal No. 988 of 2005 by the High
Court of Gujarat with regard to a trust application appointing a
new trustee. The matter before this Court was regarding the
G interpretation and application of Clause 9 of the scheme of
Church of Brethren General Board. This Court referred to the
earlier Church of North India v. Lavajibhai Ratanjibhai & Ors.
(supra) decision of this Court applicable to the same set of facts
and thereby directed the concerned. Charity Commissioner to
H
adjudicate on all pending disputes.
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 407
GAMETI [PINAKI CHANDRA GHOSE, J.]
3.7. The Charity Commissioner adjudicated on the
A
disputes arising out of the Change Report Nos. 44/81 and 665/
81. The former was filed by Shri A.O. Patel being the Reporting
Trustee of the Brethren Trust concerned with the dissolution of
the constitution of the Brethren Trust with its "Memorandum of
Association" becoming "obsolete" and ineffective (It should be
B
•
noted that Shri A.O. Patel had died during the pendency of the
proceedings and appellant Nos. 1 and 2 were joined in his
place). The latter report was filed by CNI, Gujarat Diocese Trust
which requests for the change, that as the CNI Trust has
became the legal continuation and successor of the Brethren c
Trust, its concerned movable and immovable property must be
added to CNl's properties. The Change Reports were objected
by Shri Nityanand Thakore and other objectors filed similar
objection applications. These persons along with the
respondents in this dispute being Shri Shantilal Thakore and
0
Shri Maganlal M. Gameti had earlier given consent to the
unification proceeding. The Charity Commissioner thus
adjudicated on the following questions:-
(i)
Whether the change is legal?
(ii)
Whether the said Change Reports or any of the
Change Reports are liable to be allowed?
The Charity Commissioner answered both in affirmative
and dismissed the objections raised against the Change
Reports, allowing the properties vested in FDCB to be vested
in CNI.
E
F
3.8. Against the abovementioned order of the Charity
Commissioner, the objectors to the Change Reports preferred
Civil Miscellaneous Application Nos. 470 of 2008 and 630 of G
2008 before the City Civii Court, Ahmadabad under Section
72 ,of the BPTA. The applications were filed, alleging that there
was no lawful merger of the Trust and the property vested with
the Property Committee continued to exist with it. The questions
which arose before the learned City Civil Judge are as under:-
H
408
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
(i)
Whether the Society is dissolved and secondly,
whether the Trust, i.e., FDCB is also dissolved?
B
(ii)
Whether CNI is successor of the Trust, i.e., FDCB?
(iii)
Whether by mere merger of FDCB into various
other Churches, the properties are by rules and
regulations of the Society ipso facto vested in CNI,
without having to perform any other legal obligation
or formality?
c
3.9. The learned Civil Court Judge, after analyzing the
various aspects of the BPTA and the SR Act, was of the
opinion that the FDCB had not been dissolved as there was
no proper proof of the same. Furthermore, as a trust and
society are creations of statutes, they must be dissolved
0
accordingly and the question of merger is a factual one, wherein
the merging trust continues to exist unless specifically dissolved
under the statute. Furthermore, without following Section 50A
of the BPT A which deals with the dissolution of trust, the FDCB
property cannot be vested with CNI. Thus, the learned Civil Court
E Judge quashed and set aside the order of the Charity.
Commissioner.
3.10. The appellants (wherein appellant No.1 was one of
the respondents in the above suit) preferred First Appeal Nos.
1535 of 2009 and 1536 of 2009 before the High Court of
F Gujarat. The basic issue before the learned Single Judge was
to determine whether the CNI is the successor and legal
continuation of FDCB or not. The learned Single Judge while
adjudicating the same, referred to the earller decisions of this
Court in the same factual matrix and based on the earlier
G findings, dismissed the appeals and confirmed the order of the
Civil Court.
H
3.11. It is from this order of the High Court the matter rests
before us.
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS
409
GAMETI [PINAKI CHANDRA GHOSE, J.]
4. Mr. Mihir Joshi, learned senior counsel appearing on
A
behalf of appellant No.1 (in C.A. No. _/2013 @ SLP (C)
No.16575/2012), argued that the unification of the six churches
is pursuant to the choice exercised by the uniting churches
through various internal resolutions and the same is a religious
matter involving faith, and the courts below cannot adjudicate
B
on the same since such a choice is protected by Articles 25
and 26 of the Constitution. He further contended that the
unification has been a long drawn process which culminated
on November 29, 1970 when CNI was formed and since 1979,
annual meetings of the same are being.conducted in which the c
respondents who had given consent to the unification also
participated. Mr Joshi further contended that the stand taken
by the respondents does not hold good as they are estopped
from raising objections owing to their earlier consent to the
unification in the internal resolutions passed by FDCB.
0
Furthermore, as argued by Mr. Joshi, the objections have no
substance since the respondents are not prevented from
practising their faith and there is no change in the practices
followed by CNI which is a result of amalgamation of the uniting
churches. He further contended that as per the scope of inquiry
under Section 22, the Charity Commissioner's decision must·
E
not be set aside as the Act is a complete Code; that Section
50A of the BPTA is only administrative in nature but in the
present case the matter is of choice exercised by a community
as a whole.
5. Mr. K.V. Vishwanathan, I.earned senior counsel
appearing on behalf of appellant No. 2 (in C.A. No. _/2013
F
@ SLP (C) No. 16576/2012), in addition to Mr. Joshi's
arguments, contented that the right to unify is an inherent right
exercised by the community promised under Articles 25 and
G
26. Furthermore, the respondents have not challenged the
unification. Therefore, the view of the High Court is incorrect
and the Charity Commissioner rightly accepted the Change
Reports effecting the unification.
H
410
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
6. It is the case of the respondents that the unification did
not dissolve FDCB as the procedure laid down in the Societies
Registration Act and the BPTA was not adhered to.
Furthermore, under Articles 25 and 26, they are entitled to
object to the unification as their faith is being impinged upon
B and, therefore, they cannot be bound by estoppal. Mr. Bhatt,
learned senior counsel appearing on behalf of the respondents,
has contended that there is no question of merger and
subsequent transfer of trust property as the resolutions, which
have been relied upon by the appellants, do not have any legal
c sanctity and they cannot be placed above the law of the land.
7. Mr. Joshi further supplemented his submissions and has
submitted that the High Court's determination that the said
resolutions have interfered with Articles 25 and 26 as they
impose religious faith and tenets on FDCB is incorrect, firstly,
D because such consideration is beyond the scope of inquiry
under Section 22 and beyond the scope of the BPTA as it
entails adjudication on religious affairs; secondly, the same is
not an ordinary question fit to be decided by the Charity
Commissioner and one which attracts the jurisdiction of the
E Civil Court which .is not ousted in this aspect by the BPTA, ,in
fact the question is beyond the scope of the BPTA. Further,
pointed out that the inquiry under Section 22 is only regarding
the legality of the charge and does not extend to adjudicating
rights of parties under general law, therefore the Charity
F Commissioner has correctly held that unifications is a religious
process; furthermore unification happened in 1970 and has not
been challenged by the objectors who were a part of the
process and the High Court has, thus, overlooked that the right
to merge is a religious matter and the statute must be
G interpreted accordingly. Further, submitted that the Resolutions
are not contrary to the BPTA as no provision provides for prior
permission of the Charity Commissioner and even if there
existed one same would have been unconstitutional, also
Section 50A is only an enabling Section and the power vested
H under the same is for better administration of trusts, which is
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS
411
GAMETI [PINAKI CHANDRA GHOSE, J.]
not the reason presently; secondly, the only procedure required
A
to be followed was that under Section 22, being recording of
unification due to resolutions; thirdly, as there is no dissolution,
the obligation attached to the property is same and after merger
only the administrative machinery has been changed; lastly,
there is no transfer of property and obligations remain the same,
albeit in a different name. It was further submitted that the
contention that CNI came into existence in 1980 is
misconceived as Registration is only acknowledgment of trust
B
and is not related to incorporation of any company. Further,
submitted that the finding that procedure under the SR Act must c
be followed is untenable as assets had not been vested in the
society and the same need not be examined; moreover the
resolutions were passed by members and the Charity
Commissioner had no jurisdiction to examine the SR Act and
such objections should not have been raised before him; in
0
addition but without prejudice to the same also submitted that
the 3/5th majority requirement under the SR Act was complied
with and no dispute had been raised under Section 13 of the
SR Act. Further, contended that the High Court's finding that
unification amounts to imposition of tenets is not correct as after
E
the merger the same religious practice existed, a fact accepted
by the Civil Court as well; moreover as CNI was an
amalgamated body, there is no question of imposition or taking
over. Also contended that the rejection of the Change Reports
F
by the High Court is untenable as all documents exhibited
before the Charity Commissioner have been proved in the Civil
Court and also strict .rules of evidence do apply to such
proceedings. It is submitted that the finding of the High Court
that objectors are not barred by estoppels is incorrect as the
objections lac~ bonafide. Lastly, he submitted that the
contention that the issue had been decided in Church of North
G
India v. Lavajibhai Ratanjibhai & Ors .. (supra) does not hold
good in the light of the subsequent decision in Vinod Kumar
Mathurseva Ma/via & Anr. v. Magan/al Mangaldas Gameti &
Ors. (supra).
H
412
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A
8. Appellant No. 2 in his written submissions settled by Mr.
Vishwanathan, has further supplemented and submitted that the
issue of merger of churches is not amenable to jurisdiction of
courts and is independent of the BPTA as it is a religious or
ecclesiastical matter not subject to judicial scrutiny; that they
B have placed sufficient evidence before the Charity
Commissioner to prove the factum of merger which has been
upheld by the City Civil Court as well; that sub-section (2) of
Section SOA of the BPT A comes into play when the Charity
Commissioner is of the opinion that trusts must be merged due
c to mismanagement, however in the present matter the merger
is due to religious and ecclesiastical reasons, and, therefore
sub-section (2) of Section SOA is not applicable; that Section
13 of the SR Act is not applicable as it is not a case of
dissolution of churches but a merger, furthermore, the BPTA
0 is a complete code and merger of trust registered under the
BPT A cannot be contingent on the requirements under Section
12 of the SR Act, furthermore, the applicability of both the
statutes creates an anomalous situation; one of the objectors
himself was the trustee when the Change Reports were filed
E and only a miniscule faction have objected to the Change
Reports; that the resolutions for merger of FDCB with CNI
passed by the internal bodies of FDCB have not been assailed
or challenged by anybody (including the respondents) before
the Civil Court, therefore these resolutions continue to bind all
the members of the FDC including the respondents; and lastly,
F that the Charity Commissioner under Section 22 of the BPTA
conducts an enquiry into the factum and legality of change and .
in this light, the Charity Commissioner has, therefore, passed
a reasoned order.
G
9. Per contra, the respondents have submitted that there
are many unexplained lapses in the entire formation of CNI, first
being that the Change Reports have been filed eleven years
after the occurrence of the alleged changes in violation of
Section 22 of the BPTA which requires that a change is to be
H mandatorily reported after 90 days of its occurrence; secondly,
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 413
GAMETI [PINAKI CHANDRA GHOSE, J.]
CNITA being the trustee of CNI, was formed six years after the
A
alleged formation of CNI which was registered in 1980, thereby
creating a situation where the CNI trust did not have a trustee
for six years and did not have any legal status till its registration
in 1980; thirdly, CNI only submitted its audited books of
accounts prior to 1984; lastly, CNI was registered after ten years
of unexplained delay and the same was ex-parte, furthermore,
as per the appellants, CNI was the successor of FDCB;
however, at the time of subsequent registration, the properties
of FDCB were not shown in the registration form as properties
B
of CNI. In this background, the present Change Reports are c
incorrect and in violation of Section 22 as they seek to effect a
change which took place prior to the registration of the trust,
furthermore in the light of the above, the claim of the appellants
that CNI is the legal successor of FDCB since its formation on
November 29, 1970 till date does not hold good. The
0
respondents further submitted that, admittedly, the FDCB was
first registered under the SR Act and then under the BPTA
when it came into force and is, therefore, governed by both
which are regulatory in nature; that in addition to the above, the
present Change Reports seeking alienation of the properties
of a registered trust are not in compliance with Section 36 and/
E
or Sections 50A, 51, 50 of the BPTA and that the trust which
exists in perpetuity does not stand dissolved by the declaration
of a Charity Commissioner who has declared the same without
resorting to Section 13 of the SR Act; that even the other
denominations which merged with CNI continue to exist and
own the property; that the resolutions placed by the appellants
only speak about merger and there is nothing on record which
indicates the intent of dissolution of trust or society; that a
society stands dissolved only after the procedure under Section
F
13 of the SR Act is followed and the dissolution of a society
G
does not ipso facto mean that properties of the trust are also
adjusted; that many persons objected to the unification and
M.M. Gameti is only the principal objector who never held any
post or signed any documents and even such documents are
without any legal consequence; and lastly, that the unification
H
414
SUPREME COURT REPORTS
[2013] 14 S.C.R.
A is the secular part ancillary to religious practice and is,
therefore, subject to judicial scrutiny.
10. Having heard the rival contentions and after considering
the written submissions, we are of the opinion that the primary
8
issue which needs to be answered is : whether the alleged
unification of the First District Church of Brethren with the
Church of North India is correct or not, and the same answers
all the ancillary issues raised before us.
11. Regarding the issue of unification, we are of the opinion
C that the questions regarding the validity of the unification
process have been answered in the observations made by this
Court in Church of North India v. Lavajibhai Ratanjibhai & Ors.
(supra), wherein the matter was regarding the bar of jurisdiction
of the Civil Court under Section 80 of the BPT Act. This Court
D in the aforementioned matter delineated the jurisdiction of the
authorities and the Civil Court under the BPT Act and under
what circumstances which body has jurisdiction. While reaching
to its conclusion, this Court at great length discussed the
provisions of the SR Act and the BPTA and the relationship
E between the two and determined that :
F
G
"61. There is nothing on record to show that the churches
concerned were being managed by the societies
registered under the Societies Registration Act. In any
event, it stands accepted that the dispute as regards
dissolution of societies and adjustment of their affairs
should have been referred to the Principal Court of
original civil jurisdiction.
62. The suit in question also does not conform to the
provisions of Section 13 of the Societies Registration Act.
63. Section 20 of the Act provides that the societies
enumerated therein can only be registered under the
said Act.
H
64. Unless a suit is filed in terms of Section 13 of the Act,
VINODKUMAR M. MALAVIA v. MAGANLAL MANGALDAS 415
GAMETI [PINAKI CHANDRA GHOSE, J.]
the society is not dissolved. Even assuming that the
A
society stands dissolved in terms of its memorandum of
association and articles of association, the same would
not ipso facto mean that the properties could be adjusted
amongst the members of the society in terms of the
provisions of the said Act. Concededly, the properties of B
the trust being properties of the religious trust had vested
in such trust. Such a provision, we have noticed
hereinbefore, also exists in the BPT Act. Thus, only
because the society has been dissolved, ipso facto
the properties belonging to the trust cannot be said c
to have been adjusted. The appellants, thus, we have
noticed hereinbefore, have averred in the plaint that the
suit relates to the property of the trust and their
administration. If the properties of the churches did not
belong to the society, the appellant herein cannot 0
claim the same as their successor. . .. "
(emphasis supplied)
12. It has been alleged by the appellants that under Articles
25 and 26 of the Constitution, they are entitled to manage their
E
affairs and the question of unification of churches is a religious
decision over which the courts have no jurisdiction. We are of
the opinion that the unification has no legal foundation
whatsoever. The FDCB is a religious society registered under
F
the Societies Registration Act and its property vests with a Trust
regulated by the BPTA. As per the BPTA, a public trust being
religious in nature, may also be a society under the Societies
Registration Act. It is a well accepted principle that a body
created by a statute must conform to the provisions of the
regulating statute. In the present case, the procedure for
G
dissolution of FDCB has not conformed to the requirements set
out in Section 13 of the SR Act and the procedure as laid down
in the BPT Act as noted in Church of North India v. Lavajibhai
Ratanjibhai & Ors. (supra). Furthermore, the case of the
appellants is based on the resolutions and deliberations which
H
416
SUPREME COURT REPORTS
(2013) 14 S.C.R.
A it has put on record in support of its claim of dissolution and
subsequent unification.