Judgment

SUJATA V. MANOHAR

( 1 ) APPLICATION for substitution is allowed.

( 2 ) THE Charity Commissioner, Maharashtra State, Bombay filed a suit under Section 50 of the Bombay Public Trusts Act, 1950 in respect of a Public Trust known as Dargah of Sayad Ishak alias Shri Pair Mirawalisaheb situated at Mirawali Pahad, Kapurwadi, Taluka : Ahmednagar, District : Ahmednagar. The suit was for framing a proper scheme for the management of said Dargah and for the removal of the Mutawalli and the Mujawars of the said Dargah. The first defendant who is the appellant before us was the Mutawalli of the said Dargah holding a hereditary post for several generations. Defendants 2 to 7 and one Shaikh Hasan Shaikh (since deceased) were registered as the Mujawars of the said Dargah. The object of the Trust was to protect the said Dargah and the Musjid and to maintain worship at it. The properties of the Trust were described in Schedules a and b to the plaint. Properties in Schedule a were in the possession of defendant No. 1 while those in Schedule b were, at that time, in the possession of the Receiver who was joined as defendant No. 9.

( 3 ) THERE had been considerable litigation between the Mutawalli and the Mujawars of the Dargah in respect of their rights and obligations. Ultimately, in Civil Suit No. 712 of 1945, the rights and obligations of the Mutawalli and the Mujawars were crytallised and the Court held in that suit that defendant No. 1 was a hereditary Mutawalli while the predecessors of defendants 2 to 6 and defendant No. 7 as also the deceased Shaikh Hasan were Kadimi Mujawars having the right to act as attendants and servants of the said Dargah and to carry on their traditional duties under the supervision and control of the Mutawalli. Under the decree of the Court, the general management and possession of the Dargah and its properties were to remain with the Mutawalli who had to control the Mujawars in the discharge of their duties. The Court also laid down the remuneration to be paid to the Mutawalli and the Mujawars. The Court said that the Mutawalli was entitled to one-fourth of the gross income of the Dargah while the Mujawars were entitled to the remaining three-fourth income after deducting the necessary and traditional expenses of the management and upkeep of the Dargah.

( 4 ) THE Charity Commissioner, however, contended that the Mutawalli and the Mujawars were not discharging their duties properly and were not prepared to co-operate and carry out their respective duties. He, therefore, filed the above suit and prayed that both the Mutawalli and the Mujawars should be removed and a suitable scheme for the management of the Dargah should be framed by the Court. The trial Court held that it would not be proper to remove the Mutawalli or the Mujawars who held hereditary offices. But a suitable scheme was required to be framed for the proper management of the Dargah. The Court accordingly framed a scheme which was annexed as Schedule a to the judgment and decree. Under the scheme, the Court, inter alia, provided that the Dargah should be looked after by a Board of Trustees. The scheme provided that the number of trustees shall be three and one of the trustees shall be the Mutawalli, that is to say, defendant No. 1 Two other nominated trustees were Professor Abdul Karim Kamaruddin and Shri G. G. Khan Advocate. The scheme provided that one of three trustees shall be as far as possible, from the lineal descendants of the present defendant No. 1. Clause 21 of the scheme provided for payment of management expenses and other expenses. After providing for various expenses in connection with the maintenance of the Dargah and providing for a reserve fund for the purposes of repairs, renovation or re-building of the immovable properties belonging to the trust, the scheme provided that out of the balance left, the Mujawars be paid in a body 60 Per Cent of the income and the remaining 40 Per Cent should be paid as remuneration to the trust