Case Note & Summary
The appellants, original applicants in Scheme Application No. 17 of 1987, sought framing of a scheme for the public trust 'Hazrat Sayyad Dalal @ Shaikh Kamal Haq @ Darvesh and Balgorkhana Bagroja, Ahmednagar' registered under the Bombay Public Trusts Act, 1950. The Assistant Charity Commissioner allowed the application on 31.05.1995 and provided a model scheme. The respondents, legal heirs of deceased trustees, appealed under Section 72(2) of the Act before the District Judge-7, Ahmednagar, who set aside the order on 16.01.2012 and remanded the matter for consideration of the hereditary claims of the legal heirs. The appellants challenged this remand order in the High Court. The High Court found that the District Judge had not considered the merits of the scheme or the hereditary rights, and the remand was without proper adjudication. The Court allowed the second appeal, set aside the District Judge's order, and remanded the matter back to the District Judge for fresh consideration of the appeal on merits, including the issue of hereditary trusteeship. The Court directed that the appeal be decided afresh in accordance with law.
Headnote
A) Trust Law - Hereditary Trusteeship - Succession Rights - Bombay Public Trusts Act, 1950, Sections 72, 50 - The District Judge set aside the Assistant Charity Commissioner's order framing a scheme and remanded the matter for consideration of the legal heirs' right to be appointed as trustees by succession. The High Court held that the remand was improper as the District Judge did not examine the merits of the scheme or the hereditary claims, and directed fresh adjudication. (Paras 1-3)
Issue of Consideration
Whether the District Judge was justified in setting aside the Assistant Charity Commissioner's order and remanding the matter for consideration of hereditary claims without adjudicating the merits of the scheme application.
Final Decision
The High Court allowed the second appeal, set aside the judgment of the District Judge-7, Ahmednagar dated 16.01.2012, and remanded the matter back to the District Judge for fresh consideration of Trust Application No. 03 of 2003 on its own merits, including the issue of hereditary trusteeship, in accordance with law.
Law Points
- Hereditary trusteeship
- Succession rights
- Remand order
- Bombay Public Trusts Act
- 1950
- Section 72
- Scheme application
- Charity Commissioner jurisdiction
Case Details
2019 LawText (BOM) (10) 12
Second Appeal No. 477 of 2012
Mr. A.S. Bajaj for appellants, Mr. N.C. Garud for respondents No. 1a to 1c
Shaikh Abdul Razak Yaseen Patel, Shaikh Mohammed Shahabuddin, Shaikh Fakirmohammed Chand, Sayyed Shakeel Meer Mohammed
Sayyad Murad Syed Irfan Ali (deceased) through L.Rs. Smt.Sharifabi, Fakira Mohammed Murad Sayed, Abdul Raheman s/o Murad Sayed; The Charity Commissioner, Maharashtra State
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Nature of Litigation
Second appeal against the judgment of District Judge-7, Ahmednagar, setting aside the Assistant Charity Commissioner's order framing a scheme for a public trust and remanding the matter for consideration of hereditary claims.
Remedy Sought
Appellants sought to set aside the remand order and restore the Assistant Charity Commissioner's order framing the scheme.
Filing Reason
The District Judge remanded the matter without adjudicating the merits of the scheme application or the hereditary claims.
Previous Decisions
Assistant Charity Commissioner allowed Scheme Application No. 17 of 1987 on 31.05.1995; District Judge set aside that order on 16.01.2012 and remanded the matter.
Issues
Whether the District Judge was justified in setting aside the Assistant Charity Commissioner's order and remanding the matter for consideration of hereditary claims without adjudicating the merits of the scheme application.
Submissions/Arguments
Appellants argued that the District Judge erred in remanding the matter without considering the merits of the scheme and the hereditary claims.
Respondents supported the remand order, contending that the legal heirs' rights needed to be considered.
Ratio Decidendi
The District Judge, while exercising appellate jurisdiction under Section 72(2) of the Bombay Public Trusts Act, 1950, must adjudicate the appeal on merits and cannot simply remand the matter without deciding the issues raised, including the hereditary claims of the legal heirs.
Judgment Excerpts
The District Judge-7, Ahmednagar, vide his judgment dated 16.01.2012, set aside the order dated 31.05.1995 of the Assistant Charity Commissioner and remanded the matter back for consideration of the right of the legal heirs of the deceased trustees for considering his appointment on the post of Chairman and Managing Trustee on the board of Trustees and their hereditary claim for appointment of trustee by succession and to modify the scheme wherever it was necessary.
Procedural History
Scheme Application No. 17 of 1987 was filed before the Assistant Charity Commissioner, Ahmednagar, who allowed it on 31.05.1995. The respondents appealed under Section 72(2) of the Bombay Public Trusts Act, 1950, before the District Judge-7, Ahmednagar, who set aside the order and remanded the matter on 16.01.2012. The appellants filed the present second appeal before the High Court.
Acts & Sections
- Bombay Public Trusts Act, 1950: Section 72, Section 72(2), Section 50
