1999(2) ALL MR 282
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

T.K. CHANDRASHEKHARA DAS, J.

Smt. Bai W/O Mohamed Mulla And Ors. Vs. The Charity Commissioner, Maharashtra State, Bombay & Ors.

First Appeal No. 170 of 1980,F.A. No. 993 of 1979

21st December, 1998

Petitioner Counsel: Mr. M.C. VYAS with Mr.JAISWAL
Respondent Counsel: Mr. R.G. KETKAR, Mrs. JYOTI OINGLE THAKUR, Shri. PRASHANT NAIK

Bombay Public Trusts Act (1950), S.50 - Enquiry under - Section does not contemplate a judicial enquiry.

Judicial enquiry is not contemplated under section 50 before filing a suit. The section is very clear and unambigous. In order to avoid any misuse of power of the Charity Commissioner, the legislature has laid down a rider for the enquiry. [Para 5]

JUDGMENT

JUDGMENT :- 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 (Manorary) 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 Trusts. 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 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 redundent, 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 that too, an application filed by Yakub which is conclusively proved that the property Scheduled in A and B belonged to the public trust.

4. The second issue is with regard to the scheme. As I observed earlier the draft scheme produced by the plaintiff has been modified by the trial court and regulated the number of trustees and the manner in which the trustees should be elected and nominated. In the facts and circumstances of the case, I cannot find any fault in such a scheme framed by the court. The trial court has given adequate consideration of the fact that property belong to the family of the Defendants 1 to 13 and two representatives of the family were allowed to be nominated to the trust.

5. As regards the issue nos. 3 and 4 wherein the Defendant has challenged the allegation of mis-management and misconduct in managing the trust property, the trial court considered the admitted fact and has come to the conclusion that there is mis-management of the property. The trial court cannot be found fault with, by arriving its conclusion that the facts admitted even by the Defendants that no accounts have been rendered till the filing of the suit for the inspection of the trust. Ofcourse the first Defendant had contended that her share in the trust property is only two annas and she tried to establish that she has rendered the account of two annas. The trial court has rightly rejected that contention for the simple reason that a trustee cannot claim the share in the trust property and therefore cannot absolve from the liability of rendering account by saying that he is prepared to render account to the extent of share two annas. The contention put forth by the defendants is not at all available to a trustee as a trustee does not enjoy any proprietary right in the property. The trustee is holding the property in trust for the beneficiary. Therefore in the light of this legal position the trial court is quite right in holding that there is a failure of rendering accounts and thereby trustees committed the misconduct and mis-management of the trust property.

5A. Apart from this issue it appears that the learned counsel appearing for the Defendants before the trial court had raised a technical objection against the maintainability of the a suit, relying on section 50 of the Bombay Public Trust Act. The section 50 of the Bombay Public Trust 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 Defendant's 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 Trust Act. The lower court has in elaborate detail, examined this contention and found that there has been an enquiry. The lower court has rightly disagreed with the contention of the learned counsel for the Defendants 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 Trust 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 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 me, there is nothing on record to show that this conclusion of the trial 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.

6. In view of this discussion, I find that no ground has been made out by the appellant to interfere with the judgment and decree of the trial court. The trial court has correctly come to the conclusion and entered the findings with the material and evidence adduced in this case.

7. In the result the appeal fails and it is dismissed with costs.

Appeal dismissed.