Case Note & Summary
The dispute concerned a public trust known as Dargah of Sayad Ishak alias Shri Pir Mirawalisaheb situated at Mirawali Pahad, Kapurwadi, Taluka Ahmednagar, District Ahmednagar. The Charity Commissioner, Maharashtra State, Bombay filed a suit under Section 50 of the Bombay Public Trusts Act, 1950 seeking framing of a scheme for management of the Dargah and removal of the Mutawalli and Mujawars. The first defendant, who was the appellant before the Supreme Court, was the hereditary Mutawalli holding the post for generations. Defendants 2 to 7 and one Shaikh Hasan Shaikh Sultan (since deceased) were registered Mujawars. The trust properties were described in Schedules A and B to the plaint, with Schedule A in possession of defendant No.1 and Schedule B in possession of the Receiver (defendant No.9). Prior litigation in Civil Suit No.712 of 1945 had crystallized the rights and obligations of the Mutawalli and Mujawars, holding that defendant No.1 was a hereditary Mutawalli and the predecessors of defendants 2 to 6 and defendant No.7 as also the deceased Shaikh Hasan were Kadimi Mujawars with duties under the supervision of the Mutawalli. The court had fixed remuneration: Mutawalli entitled to one-fourth of gross income, Mujawars to remaining three-fourths after deducting expenses. The Charity Commissioner alleged that the Mutawalli and Mujawars were not discharging duties properly and were not cooperating, and therefore prayed for their removal and framing of a scheme. The trial court held that it would not be proper to remove hereditary office holders but that a suitable scheme was required. The court framed a scheme providing for a Board of Trustees of three trustees, one of whom shall be the Mutawalli (defendant No.1), and two nominated trustees Professor Abdul Karim Kamaruddin and Shri G.G. Khan, Advocate. The scheme also 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, reserve fund for repairs, and then balance: Mujawars to be paid 60% of income and remaining 40% as remuneration to trustees, divided equally amongst the Mujawars and trustees. The Charity Commissioner did not file any appeal from this judgment and decree. The Mutawalli and Mujawars filed separate appeals to the High Court. The High Court concluded that the Mutawalli had not rendered proper accounts and hence should not be a trustee under the scheme. The High Court modified the scheme by deleting the name of first defendant as trustee and taking away the right of lineal descendants to be on the Board of Trustees. The High Court also made minor alterations, including permitting the Mujawars to take away sherni or prasad of perishable nature with value accounted in amounts payable to them, and directed that remuneration to Mujawars not exceeding 60% of the balance after taking into account value of sherni would be fixed by the Board of Trustees in consultation with the District Judge. The present appeals were filed by the original defendant No.1, the Mutawalli. He contended that his hereditary right to act as Mutawalli ought not to have been taken away by the High Court. The Supreme Court found considerable force in this submission. The Charity Commissioner did not object to the Mutawalli being nominated as one of the trustees under the trial court scheme. The High Court suo motu concluded that the Mutawalli should not be associated with management. The Supreme Court found no sufficient grounds for depriving the Mutawalli of his hereditary right or his entitlement to remuneration under the scheme. The Mutawalli had rendered accounts as directed, and the accounts were audited by a Chartered Accountant. The amounts involved were small. The High Court doubted some entries, particularly those showing Himmatkhan as a tenant of some lands and rent received from him. If the High Court found accounts unsatisfactory, it could have given appropriate directions for finalisation, giving the Mutawalli an opportunity to explain or rectify. But the drastic step of totally depriving the Mutawalli of hereditary entitlement and all remuneration was not warranted. The High Court also did not consider that the Mutawalli was only one of three trustees and his right to receive payment was only after providing for expenses and contingencies set out in Clause 21. The Supreme Court held that the scheme framed by the trial judge provided adequate safeguards for proper management and preserved hereditary rights consistent with proper management. The Mutawalli never made any claim adverse to the Trust and had shown readiness to submit to directions regarding maintenance of accounts. Therefore, the directions of the High Court removing the Mutawalli as trustee and taking away the provision that at least one trustee shall be a lineal descendant of defendant No.1 were set aside, and the provisions of the original scheme were restored. The appeals were allowed with no order as to costs.
Headnote
A) Trusts and Charities - Public Trusts - Section 50 Bombay Public Trusts Act, 1950 - Scheme for management - Court can frame a scheme without removing hereditary office holders when proper management can be achieved - The trial court framed a scheme with three trustees including the hereditary Mutawalli, preserving hereditary rights while ensuring management - Held that hereditary rights should not be disturbed absent sufficient grounds (Paras not mentioned). B) Trusts and Charities - Removal of Hereditary Trustee - Bombay Public Trusts Act, 1950 - High Court modification - High Court suo motu removed Mutawalli for alleged improper accounts, but accounts were audited and could be corrected with directions; drastic step of total deprivation was unwarranted - Held that appellate court should not modify scheme to deprive hereditary office without adequate reasons, especially when lower court safeguards are adequate (Paras not mentioned). C) Trusts and Charities - Remuneration of Trustees - Scheme Clause 21 - Hereditary Mutawalli's right to remuneration under scheme - High Court deprived the Mutawalli of all remuneration, but he was only one of three trustees and payment was conditioned after expenses and reserve fund - Held that original scheme's remuneration provision restored (Paras not mentioned).
Issue of Consideration
Whether the High Court was justified in modifying the scheme framed by the trial court to remove the hereditary Mutawalli from the Board of Trustees and deprive him of remuneration without sufficient grounds.
Final Decision
Appeals allowed; directions of High Court modifying the scheme set aside; original scheme framed by trial court restored; no order as to costs.
Law Points
- Hereditary office holders should not be removed absent sufficient grounds
- appellate court should not modify scheme suo motu without opportunity to correct accounts
- scheme must balance hereditary rights with proper management
- Section 50 Bombay Public Trusts Act 1950 empowers framing of scheme
