Back
Bombay High Court
VAIDYA,SHIMPI
Fakir Mohamed Abdul Razak - Appellant
Versus
Charity Commissioner, Bombay - Respondent
Decided On : 07/16/1975
PUBLIC TRUST - SCHEME OF MANAGEMENT - APPOINTMENT OF TRUSTEES - COURT'S DISCRETION - INTEREST OF PUBLIC - PROCEDURE TO BE FOLLOWED - CONSENT DECREE - PRELIMINARY OBJECTIONS - MAINTAINABILITY OF APPEAL - INTERVENOR'S RIGHT TO APPEAL - COURT'S DUTY TO CONSIDER OBJECTIONS AND EVIDENCE - SETTING ASIDE OF DECREE - REMAND FOR PROPER TRIAL.
Fact of the Case:
The suit was filed by the Charity Commissioner under Section 50 of the Bombay Public Trusts Act, 1950, as it stood before its later amendments at the time when the Charity Commissioner filed the suit, for framing a scheme for the management of the Trust and for other reliefs which were incidental or consequential to the framing of the Scheme and the management of the public-trust under Section 50 of the Bombay Public Trusts Act, 1950 as it stood then.
Finding of the Court:
The Court found that the learned District Judge had not followed the normal procedure of giving time to the parties to lead evidence, except placing his reliance on the so-called statements of their Advocates one of which is wholly challenged before us by Mr. Maniyar. There is nothing in the record to show that the learned District Judge applied his mind to the credentials of the persons who have been actually appointed as the first trustees under paragraph 7-A of the Scheme. The Court also found that the learned District Judge had not considered the interest of the worshippers and had not given any opportunity to the members of the public to object to the amendments in the Scheme.
Issues: 1. Whether the preliminary objections raised by the respondent are tenable? 2. Whether the decree passed by the learned District Judge can be called a consent decree? 3. Whether the learned District Judge followed the proper procedure in settling the Scheme? 4. Whether the learned District Judge considered the interest of the public and the objections raised by the intervenors? 5. Whether the decree passed by the learned District Judge should be set aside and the suit remanded for a proper trial?
Ratio Decidendi: 1. The preliminary objections raised by the respondent are not tenable as the intervenor-appellant had submitted before the lower Court and it is submitted even before us that he opposes the appointment of the defendant Ketkar as one of the Trustees as Ketkar has been acting in a manner prejudicial to the best interests of the Trust from 1946 till now. The trustees appointed under the Scheme as framed by the lower Court had ceased to be in the management or possession of the Dargah on account of certain other litigations which are pending. The Trustees had thus not applied in the lower Court to be made parties or intervenors in the litigation. 2. The decree cannot be called a consent decree because there is nothing on record to show that any of the parties had agreed to any consent decree. The parties and their Advocates have not signed any consent terms. The statements which the learned Judge is shown to have recorded on March 31, 1970, are only the statements of Advocates for the parties, the advocate for intervenors Nos. 2 and 3, Mr. Maniyar, and the Advocate for the defendant. There is nothing in the said statements, which are quoted above, to show that every one of the Advocates had agreed to what the other Advocates had stated especially with regard to the acceptance of the disputed provisions of the Scheme relating to the appointment of the defendant as the Managing Trustee. 3. The learned District Judge did not follow the normal procedure of giving time to the parties to lead evidence, except placing his reliance on the so-called statements of their Advocates one of which is wholly challenged before us by Mr. Maniyar. There is nothing in the record to show that the learned District Judge applied his mind to the credentials of the persons who have been actually appointed as the first trustees under paragraph 7-A of the Scheme. The Court also found that the learned District Judge had not considered the interest of the worshippers and had not given any opportunity to the members of the public to object to the amendments in the Scheme. 4. The learned District Judge had not considered the interest of the public and had not given any opportunity to the members of the public to object to the amendments in the Scheme. 5. The decree passed by the learned District Judge should be set aside and the suit remanded for a proper trial.
Final Decision: The above First Appeal and the Cross-objections are partly allowed by setting aside the decree dated March 31, 1970, passed by the learned District Judge in so far as paragraphs 6, 7-A, 9 and 33 of the Scheme mentioned in the decree are concerned, while confirming all other paragraphs of the said Scheme and the decree in so far as it is based on the said remaining paragraphs, subject to what is stated hereinabove. The suit is remitted to the Court of the District Judge for proper trial in accordance with law and in the light of the observations hereinabove regarding the framing and settling of the Scheme only in so far as paragraphs 6, 7-A, 9 and 33 are concerned. The decree in respect of the remaining paragraphs of the Scheme is confirmed. Costs in the appeal and the costs in the suit shall be costs in the suit.
VAIDYA J.:- It is rather unfortunate that the above First Appeal arising from Civil Suit No. 39 of 1953, cannot be disposed of, in the facts and circumstances of the case, so as to put an end to the litigation which was actually started in 1946 relating to the management of the Public Trust known as "Haji Malang Bawa Darga" situated on a hill Taluka Kalyan of Thane District.
2. This litigation started between the respondent Gopal Krishnaji Ketkar on the one side and Mahomed Jaffar Mohomed Hussein and another on the other side in the course of which Ketkar claimed the sole right to manage the Dargah. It is the Dargah of a 13th Century legendary and renowned Arab Pir or saint. It is worshipped along with another tomb of a Hindu princess whom the said Pir is said to have treated as his daughter.
3. The litigation ended its first course with the judgment of the Supreme Court in Gopal Krishnaji Ketkar v. Mahomed Jaffer AIR 1954 SC 5.
4. The Supreme Court laid down in paragraph (31) of its judgment at page 8 as follows:-
"It is evident from the case of both sides that the Darga is not private property. It was in existence some 700 years before the plaintiffs' ancestors came on the scene and a Muslim was in management in 1817. After this length of time and after what happened, and especially, as a Hindu princess was buried beside the Muslim saint, it might be legitimate to infer that there was some lawful origin, of which the traces are now lost, for management by a Hindu; and it may be fair and proper that whoever manages should be permitted to retain a portion of the offerings for himself. But it is quite evident that the property was not handed over to the plaintiffs' ancestors as a personal gift, nor of course would the Collector have had power to do that"
All he did was to settle a dispute and with or without authority, to decide that Kashinath Pant had the right to manage; and that was all that Kashinath Pant claimed. Ever since, until the notice of 4-4-46, no adverse right even to the offerings, has ever been set up. Then comes the admitted fact that the public have taken an interest in the place and that a dharamshala and so forth were built by 'members of the public including a Parsee; also that the place is very largely visited, particularly during the Urus time. This being so, we think it undesirable that things should be allowed to drift in this uncertain way, no one knowing where the legal rights of management lie or of what they consist: no one knowing how the rights are to devolve or how the large charitable offerings which are collected are to be distributed and used."
The Supreme Court has also referred to a statement made by the Solicitor General before them that a suit under Section 92 of the Code of Civil Procedure was under contemplation, and in view of that statement certain directions were given in the judgment regarding the collection and disposal of the offerings and it was also further stated-
"If no such suit is instituted within the said six months, then the second plaintiff, as the person in 'de facto' management of the Darga from 13-11-1938, the date of his adoption, till the date of suit, 7-10-1946 will be entitled to receive the offerings now lying in deposit in the Treasury for and on behalf of the Darga and for its benefit and in future to collect all the offerings all the year round for and on behalf of the Darga and for its
benefit until be is displaced by a person with better title or authority derived from the Courts."
The six months' period referred to therein was to commence from the date of the judgment of the Supreme Court which was May 22,1953.
5. During the pendency of the said suit and the consequent litigation which went up to the Supreme Court, the Bombay Public Trusts Act, 1950 was passed. It came into force on January 21, 1952. Ketkar made an application under that Act, under protest, for registering the Darga as a Public Trust of which he was the sole trustee. The application was filed
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
