Bai w/o Mohamed Mulla and others vs Charity Commissioner Maharashtra and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 814

IN THE HIGH COURT OF BOMBAY
T.K. Chandrashekhara Das, J.
Smt. Bai w/o Mohamed Mulla others ..... Appellants.
Versus
The Charity Commissioner Mah. others..... Respondents.
First Appeal No. 170 of 1980, decided on 21-12-1998.
Advocates appeared :
M.C. Vyas with Jaiswal, for the appellants.
R.G. Ketkar, for the respondents 3 to 6
Mrs. Jyoti Oingle Thakur, A.P.P., for the State.
Prashant Naik, for respondent No. 7.

Headnote:Section 50-Mismanagement Of Trust property-Charity Commissioner filing suit for removal of trustees and for sanction for new management-Enquiry by Charity -Commissioner before filing suit Such enquiry need not be judicial enquiry as claimed by defendants but only ordinary enquiry-Held, thus suit maintainable.- The defendants before the trial Court had raised a technical objection against the maintainability of the suit, relying on
       Section 50 of the Bombay Public Trusts Act. The Section 50 of the Bombay Public Trusts Act gives the power to the Charity Commissioner to file a suit for recovery of the possession of the property and for necessary direction for administration of the trust or declaration of an injunction. It is also stated in Section 50 that before filing a suit for the aforesaid relief, the Charity Commissioner has to make an enquiry. According to the defendants counsel in the trial Court, it has been argued that no such enquiry has been conducted by the Charity Commissioner as a condition precedent as laid down in Section 50 of the Bombay Public Trusts Act. The lower Court has in elaborate detail examined this contention and found that there has been enquiry. The lower Court has rightly disagreed with the contention of the learned counsel for the defendant in the trial Court that the enquiry that is envisaged under Section 50 must be a judicial enquiry and the enquiry that has been conducted in the present case is only an enquiry through a subordinate officer of the Charity Commissioner and that enquiry, therefore, will not be sufficient in the light of the Section 50 of the Bombay Public Trusts Act. On a reading of the aforesaid section, one cannot come to a conclusion that a judicial enquiry is contemplated under Section 50 before filing a suit. The section is very clear and unambiguous. In order to avoid any misuse of power by the Charity Commissioner, the Legislature has laid down a rider for the enquiry. It has been stated that in the enquiry the Charity Commissioner in order to gather the materials necessary for filing a suit. In this case, the trial Court has found that the Charity Commissioner has conducted the enquiry through the Inspector and the Inspector has recorded the statement of the defendant No.1 and also other persons, who are interested in the affairs of the Trust and gathered other materials necessary for the Charity Commissioner to arrive at a conclusion that a suit has to be filed for removal of the trustees. According to me, there is nothing on record to show that this conclusion of the trial Court is in any way erroneous and the lower Court has rightly rejected the contention of the defendants that the enquiry contemplated under Section 50 of the Bombay Public Trusts Act should be a judicial enquiry and. not an ordinary enquiry.
       Section 50-Suit for removal or trustees-Allegation of mismanagement and misconduct in managing trust property-A trustee holds property in trust for the beneficiary and does not enjoy any proprietary right in the property-He cannot, therefore, claim the share in trust property and absolve himself from liability of rendering account by saying that he is prepared to render account to the extent of his share Failure of rendering accounts by trustees would, therefore amount to committing misconduct and mismanagement of the trust property justifying their removal.
       Section 50-Suit under Section 50 of Act of 1950 for removal of trustees and after settling the Scheme proper and fit members be appointed as trustees and the trust properties be vested in them on recovery of possession of property by Charity Commissioner- The trial Court came to the conclusion that there was mismanagement of the property-In order to avoid any misuse of power of the Charity Commissioner, the Legislature has laid down a rider for the enquiry before filing suit-However, the enquiry contemplated under Section 50 is not a judicial enquiry-Enquiry conducted by Charity Commissioner through the Inspector and the Inspector recorded the statement of the defendant No.1 and also other persons, who were interested in the affairs of the Trust and gathered other materials necessary for the Charity Commissioner to arrive at a conclusion that a suit has to be filed for removal of the trustees - Conclusion of the trial Court not erroneous.
       Section 50-Mismanagement or trust property-Suit by Charity Commissioner under Section 50 of Act for removal of trustees-Requirement of enquiry before filing of such suit-Contention of defendant that enquiry as contemplated under Section 50 of Act of Act should be judicial enquiry and not ordinary enquiry through departmental official Validity-Held, contain not correct No judicial enquiry contemplated. On a reading of the aforesaid section, one cannot come to a conclusion that a judicial enquiry is contemplated under Section 50 before filing a suit. The section is very clear and unambiguous. In order to avoid any misuse of power of the Charity Commissioner, the legislature has laid down a rider for the enquiry. It has been stated that in the enquiry the Charity Commissioner in order to gather the materials necessary for filing a suit. In this case the trial Court has found that the Charity Commissioner has conducted the enquiry through the Inspector and the Inspector has recorded the statement of the Defendant No.1 and also other persons who are interested in the affairs of the Trust and gathered other materials necessary for the Charity Commissioner to arrive at a conclusion that a suit has to be filed for removal of the trust. According to Court, there is nothing on record to show that this conclusion of the trial Court is any way erroneous and the lower Court is any way erroneous and the lower Court has rightly rejected the contention of the defendants that the enquiry contemplated under Section 50 of the Bombay Public Trust Act should be a judicial enquiry and not a ordinary enquiry.

JUDGMENT - T.K. CHANDRASHEKHARA DAS, J.:---This appeal arises out of a judgment and decree passed by the IInd Extra Assistant Judge, Satara in Regular Civil Suit No. 4/69 dated 29-9-1979. The aforesaid suit was filed by the Charity Commissioner for removal of the trustees 1 to 13 from the Public Trust called Jamma Masjid (Manoray) registered under the Bombay Public Trust No. B-115 (Satara). The above trust was registered by one Yakub Bala Mulla, husband of the defendant No. 1 and Mohamed Ali Mulla father of defendants Nos. 4 to 13 and the husband of defendants Nos. 2 and 3. Yakub died in March 1958 and Mohamad died in October 1964 and consequently defendants 1 to 13 were managing the aforesaid trust. The Charity Commissioner, the plaintiff herein, filed the aforesaid suit under section 50 of the Bombay Public Trust Act for removal of defendants 1 to 13 and after settling the scheme proper and fit members be appointed as trustees and the trust properties were to be vested in them. The defendants 1 to 13 contested the suit and filed written statement and adduced evidence. In the suit following main issues were framed.

(1) Does the plaintiff prove that the properties in Schedules A B along with the plaint are trust properties ?

(2) Is the draft scheme given by the plaintiff is proper and covers the interest of the beneficiaries for the proper management of the trust ?

(3) Does the plaintiff prove what that the present trustees in the management of the Trust are liable to be removed for the misconduct and mis-management as alleged in the plaint ?

(4) Are the defendants liable to render accounts of the income collected by them from the trust properties till the date and trust property is made over to the Receiver appointed by the Court ?

and other consequential issues were also framed.

2. The trial Court has decided these issues in favour of the plaintiff, and decreed the suit, ordering removal of the defendants 1 to 13 from the trusteeship and the new trustees were ordered to be appointed in the manner stated in the scheme of management of the suit Trust. The trial Court also finalized the draft scheme submitted before the Court and according to the said scheme, the number of trustees have been restricted to 7 and out of 7, 5 are ordered to be elected in every five years from among the major Muslims residing in Karad town. The other two trustees were ordered to be nominated from the family members of the defendants 1 to 13. It appears that this appeal has been challenged in the above said decree as filed as back as 1980 and no stay of decree has been granted by this Court. Consequently the decree seems to have been operated and the election of the trustees as per the new scheme formulated by the trial Court has been conducted. By an application, as Application No. 4091/90, filed before this Court for seeking impleadment of the three persons as respondents 16 to 19, who were allowed to have possession of the trust property. The aforesaid application for impleading the respondents 16 to 19 have been allowed by order dated 11-3-1991. In view of the subsequent development, though the appeal has become redunded, since it is pending before this Court. I have to examine the challenge set up by the appellants against the decree.

3. As I pointed out earlier, in the light of the defence taken in the suit the aforesaid four issues were framed by the Court, the first issue is with regard to the properties described in Schedule A B annexed to the plaint belongs to the trust property. It has come out in evidence that the plaintiff has produced an application filed by Yakub for registering the trust on 18-4-1952 and on the basis of this documentary evidence, the trial Court held that the property, Schedule A B are the properties of the Public trust and the aforesaid issues therefore decided accordingly. I find no illegality in the finding of the trial Court because the conclusion arrived by the trial Court is based on documentary evidence and

Click Here to Read the rest of this document