Full Judgment Text
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PETITIONER:
HASAN NURANI MALAK
Vs.
RESPONDENT:
ASSISTANT CHARITY COMMISSIONER, NAGPUR & ORS.
DATE OF JUDGMENT:
22/08/1966
BENCH:
SHELAT, J.M.
BENCH:
SHELAT, J.M.
RAO, K. SUBBA (CJ)
CITATION:
1967 AIR 1742 1967 SCR (1) 110
ACT:
Madhya Pradesh Public Trusts Act (30 of 1951), ss. 5, 6, 7
and 8 Scope of-Registrar after enquiry recording finding a
trust not a public trust-Whether required to make entry of
negative finding in register of public trusts-Effect on
right to file suit under s. 8 to set aside finding-Repeal of
Act 30 of 1951 in application to Vidharbha area by amended
Bombay Public Trusts, Act, 1950, s. 86-Saving clauses in s.
86(3)-Effect of-Whether fresh enquiry to determine if trust
a public trust competent.
HEADNOTE:
In October 1953 upon an application made under s. 5 of the
Madhya Pradesh Public Trusts Act, 30 of 1951, the Registrar
held an enquiry ,on the question whether particular trust
founded in 1891 in, Nagpur in the Vidharbha area of the ate,
of which the properties were in the possession of and
managed by the appellant, was a public trust. On the
conclusion of the inquiry, in accordance with s. 6 of the
Act. he recorded a finding in November 1955 that the trust
in question was not a public trust. However, the Registrar
did not, as required by s. 7 of the Act, cause an entry of
this finding to be made in the register maintained by him
under the Act.
On November 1, 1956, as a result of the reorganisation of
States, the Vidharbha area was merged in the then Bombay
State. The Bombay Legislature thereafter passed the Bombay
Public Trusts Unification and Amendment Act, 1959 (6 of
1960) and by a notification dated February 1, 1964, passed
thereunder, the Bombay Public Trust Act, 1950, was, extended
to the Vidharbha area. By s. 86 sub-ss. (1) and (2) of the
Bombay Act of 1950 inducted into that Act by Bombay Act 6 of
1960, the M.P. Act was repealed and the saving provisions
contained in cls. (a), (b)and (c) in s. 86(3) projected,
inter alla anything ,done, any rights etc. accrued and any
legal proceedings pending under the repealed Act .On march
2, 1962, Respondents 2 to 5 filed an application under s. 19
of the Bombay Act before the Assistant Charity Commissioner
for an enquiry as to whether the said trust was a public
trust. The appellant contended that since the trust was
already declared not to be, a public trust under the M.P.
Act, the Assistant Charity Commissioner was precluded from
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holding the enquiry under the Bombay Act. The Assistant
Charity Commissioner however rejected this contention on
September 6, 1962 and thereupon the appellant filed a writ
petition in the High Court challenging this decision.
Two contentions were raised by the appellant in support of
his petition. Firstly, that the Registrar under the M.P.
Act having found That the trust was not a public trust and
six months having expired from the date of his finding, that
finding became final under s. 8; That a right within the
meaning of cl. (b) of s. 86(3) of the Bombay Act ,vested in
the appellant and therefore the Assistant Charity
Commissioner :was not competent to reopen that finding and
start an inquiry abrogating his said right; and secondly,
that it was obligatory on the Registrar to make an entry in
the register of public trusts maintained by him
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under the Act and that since he had not made such an entry
the enquiry held by him was not completed; that being so the
enquiry was a pending proceeding saved by s. 86(3) and
therefore the only remedy which respondents 2 to 5 bid was
to. proceed in that proceeding by calling upon the Registrar
to make and notify such entry and if necessary to file a
suit under s. 8 of the M.P. Act challenging that finding.
The High Court rejected both these contentions and held that
the M.P. Act did not confer any finality on the Registrar’s
finding and that under that Act finality attached to an
entry made by the Registrar in the register of public
trusts; as the only register that the Registrar was enjoined
upon to maintain under the Act and the rules made thereunder
was the register of public trusts it was not incumbent on
him to make an entry in such register when his finding was a
negative one. No such entry having been made, no right
under s. 86(3) vested in the appellant which would bar a
fresh inquiry under the Bombay Act. The High Court further
held that there being no obligation on the Registrar to make
such a negative entry, it could not be said that the
proceedings before him amounted to it pending proceeding
saved under s. 86(3). It was also held that the suit
contemplated under s. 8 of the M.P. Act was a suit for the
purpose of correcting an entry made by the Registrar and as
no such entry was made, respondents 2 to 5 could not have
filed a suit under that section.
On appeal to this Court,
HELD : A fresh inquiry under the Bombay Act was not
competent and the Assistant Charitty Commissioner was
precluded from entertaining it. [119 B]
Reading ss. 5, 6, 7 and 8 of the M.P. Act it was clear that
the Registrar is enjoined upon to- make an entry in the
register of public trusts irrespective of whether his
finding is in the affirmative or in the negative. For the
entry he has to, make is the entry "in accordance with his
finding" whatever that finding is. [117 E]
The inquiry held by the Registrar under the M.P. Act was
indisputably "a thing duly done" under that: Act. The
inquiry and its result having been saved by s. 86(3), cl.
(a), they continued to be governed by the M.P. Act in spite
of its ceasing to apply in Vidharbha. It could not be said
that the inquiry was completed because the Registrar bad yet
to make the entry of his finding which he was bound to make
under s. 7 of the M.P. Act; it was therefore a pending
proceeding under that Act. [118 G; 119 A-B]
Universal Import Agency V. Chief Controller, [1961] 1
S.C.R.305
referred to.
Ramalal v. Charity Commissioner, 63 Bom. L.R, 418,
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distinguished.
The cause of action for a suit under s. 8 of the M.P. Act is
finding and not the entry which is merely consequential. It
is therefore not right to say that a suit cannot. be filed
unless the Registrar has made the entry. The legislature
could not have left the right to file a suit to the mercy of
the Registrar who may or may not make the entry. [114 B; 117
A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 498 of 1964.
112
Appeal by special leave from the judgment and order dated 9
12,,1963, of the Bombay High. Court (Nagpur Bench) at
Nagpur in Special Civil Application No. 380 of 1962.
S. T. Desai, G. L. Sanghi, S. C. Ghate, A. S. Babde and O.
C. Mathur, for the appellant.
B. R, L. Iyengar and B. R. G. K Achar, for respondent No. 1.
N. C. Chatterjee, Shankar Anand, Asghar Ali and Ganpat Rai,
for respondents Nos. 2 to 5.
The Judgment of the Court was delivered by
Shelat, J. This is an appeal by special leave against the
Judgment and order of the High Court of Maharashtra
dismissing the appellant’s petition under Article 226 of the
Constitution. The question arising in the appeal is whether
the Assistant Charity Commissioner appointed under the
Bombay Public Trusts Act, 1950 as extended to the area of
Vidharbha has jurisdiction to hold an inquiry under section
19 of that Act in spite of a previous finding by the
Registrar under the Madhya Pradesh Public Trusts Act, 30 of
1951 that the trust in question was not a public trust
within the -meaning of the latter Act. The facts leading to
the writ petition may briefly be set out.
In October 1953, one Jaferbhai claiming to be a beneficiary
applied under s. 5 of the M.P. Act to the Registrar that the
trust known as Mehdibaug founded in Nagpur in 1891 and its
properties which were and are admittedly in possession of
and managed by the appellant was a public trust. As
required by section 5(2) of that Act -the Registrar directed
that a proclamation in respect of the said application
should be published in the next issue of Madhya Pradesh’
Gazette. The inquiry held by the Registrar ended in an
order dated November 11, 1955 whereby be held that the trust
was not public trust. Though the Registrar gave his
aforesaid finding he did not cause an entry thereof to be
made in the register maintained by him under the Act. On
November 1, 1956 as a result of the reorganisation of States
Vidharbha was merged in the then Bombay State. The Bombay
legislature thereafter passed the Bombay Public Trusts
(Unification Amendment) Act, 1959 and by a notification
dated February 1, 1961 passed thereunder the Bombay Public
Trusts Act 1950 was extended to the Vidharbha area. On
March 2, 1962, respondents 2 to 5 filed an application under
section 19 of the Bombay Act, 1950 before the Assistant
Charity Commissioner for an inquiry as to whether the said
trust was a public trust. The appellant contended that
since the trust was already declared not to be a public
trust under the M.P. Act the Assistant Charity Commissioner
was precluded from holding the inquiry under the Bombay Act.
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On September 6, 1962, the Assistant Charity Commissioner
rejected that contention. Thereupon the appellant filed the
aforesaid petition in the High Court. The High Court as
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stated above dismissed the petition holding that the
Assistant Charity Commissioner had jurisdiction to hold the
inquiry. It is this order which is impugned in this appeal.
In view of the controversy between the parties as to the
effect of certain provisions of the Bombay Act 1950 and the
M.P. Act of 1951 it becomes necessary to briefly notice some
of the relevant provisions of the two Acts. Section 2(4) of
the M.P. Act defines public trust" as meaning an express or
constructive trust for a public, religious or charitable
purpose and includes a temple etc. or any other religious or
charitable endowment and a society formed for a religious or
charitable purpsose. Sub-section 5 of that section defines
"register" as meaning a register maintained under sub-
section 2 of section 3 of the Act. Section 3(2) provides
that the Registrar should maintain a register of public
trusts and such other books and registers and in such form
as may be prescribed. Section 4 provides for the
registration of public trusts and lays down that the working
trustee of every public trust should apply to the Registrar
for its registration by an application in which certain
particulars therein mentioned have to be set out. Section 5
provides that on receipt of such an application or upon an
application made by any person having interest in a public
trust or on his own motion, the Registrar shall make an
inquiry in the prescribed manner for ascertaining amongst
other things whether the trust in question is a public
trust. Sub-section 2 of section 5 as aforesaid provides for
giving a public notice of the inquiry proposed to be made
inviting all persons interested in the public trust under
inquiry to prefer objections, if any, in respect of such
trust. Under section 6 the Registrar on completion of the
inquiry has to record his findings with reasons therefor as
to the matters set out in section 5(i) and under section
7(1) he has to cause entries to be made in the register in
accordance with his findings and has to publish on the
notice board of his office the entries so made. Sub-section
2 of section 7 reads as under:
"The entries so made shall, subject to the
provisions of this Act and subject to any
change recorded under any provision of this
Act or a rule made thereunder, be final and
conclusive."
Section 8 provides that any working trustee or person having
interest in a public trust or any property found to be trust
property, aggrieved by any finding of the Registrar under
section 6 may, within six months from the date of the
publication of the notice under sub-section (1) of section
7, institute a suit in a civil court to have such finding
set aside or modified. Sub-section 3 provides
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that on the final decision of the suit, the Registrar shall,
if necessary, correct the entries made in the register in
accordance with such decision.
It is clear from the provisions of section 8 that though the
entries made by the Registrar are final and conclusive that
finality is subject to the decision of the court in a suit
challenging the findings of the Registrar. The cause of
action for such a suit is thus the finding of the Registrar
and not the entry. It is manifest that section 7 requires
the making of the entry and its notification in order that
the findings given by the Registrar are recorded and are
given publicity so that an aggrieved party whether he is a
working trustee or a person interested in the trust may file
a suit within the prescribed time. Under section 35 of the
Act the State Government framed rules prescribing inter alia
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for the maintenance of certain registers. Under the Act and
the said Rules the Registrar had to maintain four registers,
viz. (1) a register ,of public trusts, (2) a register of the
properties of public trusts, (3) a register relating to
immovable properties belonging to the trusts and (4) a
register of decisions of courts relating to public trusts.
These being the only registers prescribed either under the
Act or the said rules there was no obligation on the
Registrar to maintain any other register or book.
The Bombay Act, 1950 defines a public trust to mean an
express or constructive trust for either a public, religious
or charitable purpose or both and includes a.temple, a math,
a waqf, 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. Section 18 provides for
registration of public trusts and is substantially in the
same terms as section 4 of the M.P. Act. Section 19
similarly provides for an inquiry for ascertaining the
matters set out therein which are again in the same terms as
in section 5 of the M. P. Act. Though the definition of the
public trust in the Bombay Act is not exactly in the same
terms as that in the M.P. Act the contents of both are
substantially the same. In any event it is not the case of
the respondents that that which is not a public trust or a
property belonging to a public trust under the M. P. Act has
been made a public trust or a property belonging to such
trust under the Bombay Act. The inquiry under both the Acts
and its scope are therefore the same. Section 86 of the
Bombay Act inducted in the Act by Bombay Act 6 of 1960
contains both repeal and saving clauses. Under sub-sections
1 and 2 read with Bombay Act 6 of 1960 the M.P. Act of 1951
stands repealed. Sub-section 3 which is a saving provision
provides that the repeal or cessation of the Acts under sub-
sections 1 and 2 shall not in any way affect:
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"(a) anything duly done or suffered under the
laws hereby repealed or ceasing to apply
before the said date ;
(b) any right, title, interest, obligation
or liability already acquired, accrued or
incurred before the said date under the laws
hereby repealed or ceasing to apply ;
(c) any legal proceedings or remedy in respect
of such right, title, interest, obligation or
liability."
Two contentions were raised by the appellant in the High
Court in support of his petition. First, that the Registrar
under the M.P. Act having found that the trust was not a
public trust and six months having expired from the date of
his finding that finding became final, that a right within
the meaning of cl. (b) of section 86(3) of the Bombay Act
vested in the appellant and that therefore the Assistant
Charity Commissioner was not competent to reopen that
finding and start an inquiry abrogating his said right and
(2) that it was obligatory on the Registrar to make an entry
in the register of public trusts maintained by him and that
since he had not made such an entry the inquiry held by him
was not completed; that that being so the inquiry was a
pending proceeding saved by section 86(3) and therefore the
only remedy which respondents 2 to 5 had was to proceed in
that proceeding by calling upon the Registrar to make and
notify such entry and if necessary to file a suit under
section 8 of the M.P. Act challenging that finding. The
High Court rejected both these contentions. The High Court
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held that the M.P. Act did not confer any finality to the
Registrar’s finding and that under that Act finality
attached to an entry made by the Registrar in the register
of public trust. It also held that when the Registrar’s
finding was a negative one it was not incumbent on him to
make any entry as the only register he was enjoined upon to
maintain was the one prescribed by the Act. The rules made
under the Act not having prescribed any other register or
book and the only register prescribed by the Act being the
register of public trusts it was not obligatory upon him to
enter a finding that the trust in question was not a public
trust. No such entry having been made no right under
section 86(3) of the Bombay Act vested in the appellant
which would bar a fresh inquiry under the Bombay Act. The
High Court further held that there being no ,obligation on
the Registrar to make such a negative entry it could not be
said that the proceedings before him was a pending
proceeding -saved under section 86(3). No finality
therefore was given to the finding of the Registrar that the
trust was not a public trust. As regards the suit under
section 8 of the M.P. Act, the High Court held that on a
true interpretation of sections 5, 6, 7 and 8 of that Act
the suit contemplated was a suit for the purpose of
correcting an entry made by the Registrar and that no such
entry having been made
116
no such suit lay and consequently respondents 2 to 5 could
not have filed a suit under that section.
As aforesaid the preamble of the M.P. Act shows that the Act
was enacted to regulate and to make better provision for the
administration of public, religious and charitable trusts in
the then State of Madhya Pradesh. With that end in view
section 5 of that Act provides for an inquiry to be held by
the Registrar for ascertaining among other things whether a
trust under inquiry is a public trust or not. A public
notice of such an inquiry was provided for under section
5(2) in order to enable persons interested in such trust to
participate therein. Sections 6 and 7 enjoin upon the
Registrar to, record his finding. Such a finding may either
be that the trust is a public trust or it is not. Section
7(1) enjoins upon him to cause entries to be made in the
register "in accordance with the findings recorded by him
under section 6", and he is to publish the entries when made
in the register. The register prescribed no doubt is a
register of public trusts. If the finding of the Registrar
is that a particular trust is not a public trust, does he
not have to make an entry of his finding in the register or
has he to make an entry in that register only when his
finding is a positive one that the trust is a public trust?
It will be noticed that there is nothing in section 7(1) to
show that he is required to make an entry only if the
finding is in the affirmative. On the other hand sub-
section 1 of section 7 expressly provides that he shall
cause entries to be made in accordance with the findings
recorded by him under section 6. Section 6 shows that he has
to record his findings and the reasons therefor whatever the
findings are, whether in the affirmative or in the negative.
Since entries under section 7(1) are to be made in
accordance with such findings, either positive or negative,
it follows that entries have to be made irrespective of
whether the trust is found to be a public trust or not. To
say that he is required to make an entry of finding only if
the finding is that the trust is a public trust would be
contrary to the express language of sections 6 and 7 and
would unnecessarily curtail the language and the scope of
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the two sections. This construction is also supported by
section 8. Under that section, though it is the entry made
under s. 7 which has been given finality a right of suit is
conferred on both the working trustee and all persons having
interest in the trust or any property belonging to it and
who is aggrieved ’by any finding’. The section no doubt
provides that such a suit has to be filed within six months
from the date of the publication of the entry. But that
provision is clearly one fixing limitation. That does not
mean that the suit is to set aside the entry. The section
in so many terms states that such a suit would be to set
aside the finding given by the Registrar and where such a
finding is set aside the Registrar has to correct the entry
made in the register in accordance with his findings. The
cause of section for such a suit thus is the finding and not
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the entry which is merely consequential. It is therefore
not riot to say that a suit cannot be filed unless the
Registrar has made the entry. The legislature, besides,
could not have left the right to file a suit to the mercy of
the Registrar who may or may not make the entry. It is
equally not correct to say that the Registrar has not to
make an entry if his finding is in the negative. Suppose
the Registrar in a given case gives his finding that the
trust in question is not a public trust and does not make an
entry on the ground that the register maintained by him is
the register of public trusts and not ,of trusts which are
not public trusts. What is a person interested in the trust
or its properties to do if he is aggrieved by that finding?
Does it mean that he has no remedy by way of a suit? That
surely cannot be the meaning to be given to sections 7 and
8. If the making of the entry is the condition precedent for
such a suit such a person would have no remedy of a suit
under section 8. It is precisely to avoid such a result that
the section provides in explicit language that any person,
aggrieved by the finding and not the entry, has a right to
file a suit and to have such a finding set aside, whether
the finding is positive or negative. There is nothing in s.
8 which restricts the right of a suit in cases where the
finding is in the affirmative. If that was so,giving a
right to sue to a person interested in the trust would be
superfluous as he would never be aggrieved by a finding that
the trust is a public trust. The High Court was, therefore,
in error when it held that the Registrar was not obliged to
make the entry as his finding was in the negative. In our
view, reading sections 5, 6, 7 and 8 of the M.P. Act it is
clear that the Registrar is enjoined upon to make an entry
in the register of public trusts irrespective of whether his
finding is in the affirmative or in the negative. For the
entry he has to make is the entry "in accordance with his
finding" whatever that finding is.
As regards the second contention urged before it, the High
Court observed that if it was obligatory on the Registrar to
cause an entry to be made in the register even if the
finding was negative, the fact that he had not made such an
entry would not deprive the appellant of his right and in
that event it would have held that the proceeding before the
Registrar was still pending and respondents 2 to 5 would in
that case have to have recourse to the M.P. Act. But the
High Court on the ground that there was no obligation on the
Registrar to make the entry rejected this contention. Let
us see whether there was justification in the contention
that the inquiry is still pending and that respondents 2 to
5 have to proceed under that Act and not under s. 19 of the
Bombay Act.
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Mr. Desai for the appellant relied on subsection 3 of
section 86 and urged that all the three sub-clauses, (a),
(b) and (c) apply to the present case. He urged that the
inquiry before the Registrar was a thing duly done under the
M.P. Act and was therefore saved, that the Registrar’s
finding had become final on the expiry of six
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months from the date of that finding and its finality vested
a right in the appellant which is saved by the sub-section
and lastly that the legal proceeding, that is the enquiry,
was still pending and in spite of the cessation of the M.P.
Act, was saved. He contended that a fresh inquiry therefore
could not be held as the proceeding before the Registrar was
still pending and the competent authority to proceed with it
was the Registrar and not the Assistant Charity
Commissioner. The Assistant Charity Commissioner was there-
fore precluded from holding the impugned inquiry. Mr.
Chatterjee, on the other hand, argued that no right can be
said to have accrued to the appellant as no finality
attached to the Registrar’s finding, an entry of that
finding not having been made by the Registrar. There was
also no question of any legal proceeding being saved as the
proceeding saved is the one in respect of a right, title or
interest vested in a party. Therefore, sub-cls. (b) and (c)
according to him would not in any case apply. As regards
sub-cl. (a) he argued that the inquiry before the Registrar
was over so soon as he gave his finding and therefore that
inquiry also cannot be said to have been saved.
The words "anything duly done" in sub-cl. (a) are very often
used by the legislature in saving clauses such as we have in
section 86 (3). Section 6 of the General Clauses Act, 1897
also provides that unless a different intention appears the
repeat of an Act would not affect anything duly done or
suffered there-under. The object of such a saving clause is
to save what has been previously done under the statute
repealed. The result of such a saving clause is that the
pre-existing law continues to govern the thing done before a
particular date from which the repeal of such a pre-existing
law takes effect. In Universal Imports Agency v. Chief
Controller(l) construing the words "things done" used in
para 6 of the French Establishments (Application of Laws)
Order, 1954, this Court held that on a proper interpretation
the expression "things done" was comprehensive enough to
take in not only the things done but also the effect of the
legal consequences flowing therefrom. The inquiry held by
the Registrar under the M.P. Act was indisputably "a thing
duly done" under that Act. The inquiry and its result
having been saved by section 86 (3) (a) they continue to be
governed by the M.P. Act in spite of its ceasing to apply in
Vidarbha. As we have already held it was obligatory on the
Registrar to have made an entry of his finding in the
register of public trusts maintained by him under that Act
though the finding was that the trust was not a public
trust. If any one was aggrieved by that finding he could
have made the Registrar to cause an entry to be made and
thereafter file a suit to set aside the finding and have the
entry corrected. Respondents 2 to 5 would be such persons
as they claim to be interested in the trust and are
therefore persons aggrieved by that finding and
(1) [1961] 1. S.C.R. 305.
119
interested in challenging it. The contention that that
inquiry was completed is not correct because the Registrar
had yet to make the entry of his finding which he was bound
to make under section 7 of that Act.That being the position,
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the inquiry is saved by sub-cl.(a) of section 86(3) and it
is still pending and is governed by the M.P.Act. In the
result a fresh inquiry under the Bombay Act while the
proceeding under the M.P. Act is still pending was not
competent and the Assistant Charity Commissioner was
precluded from entertaining it. In this view it is not
necessary to consider Mr. Desai’s contention that clauses
(b) and (c) also apply to the present case. Mr. Chatterjee
however drew our attention to a decision of the High Court
of Bombay in Ramalal v. Charity, Commissioner(1). That
decision cannot assist the respondents as the effect of a
saving clause such as we have in section 86(3) or in the
Bombay General Clauses Act was not considered there and the
question of the proceeding being a pending one was neither
raised nor considered. For the reasons aforesaid it is not
possible to sustain the order passed by the High Court
dismissing the petition.
We therefore set aside the order, allow the appeal and make
the petition absolute. The respondents will pay the costs
of the appellant both here and in the High Court.
R. K. P. S. Appeal allowed.
(1) 63 Bom. L.R. 418.
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