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PETITIONER: SARDARKHAN RAJADARKHAN

       Vs.

RESPONDENT: THE CHARITY COMMISSIONER & ORS.

DATE OF JUDGMENT21/11/1995

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 AIR  575            1996 SCC  (7)   5  JT 1995 (9)   201        1995 SCALE  (6)551

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs. Sujata V. Manohar,J.      Application for substitution is allowed.      The Charity  Commissioner,  Maharashtra  State,  Bombay filed a  suit under  Section 50  of the Bombay Public Trusts Act, 1950  in respect  of a  Public Trust known as Dargah of Sayad  Ishak   alias  Shri  Pir  Mirawalisaheb  situated  at Mirawali Pahad,  Kapurwadi,  Taluka:  Ahmednagar,  District: Ahmednagar. The suit was for framing a proper scheme for the management of  said  Dargah  and  for  the  removal  of  the Mutawalli and  the Mujawars  of the  said Dargah.  The first defendant who  is the  appellant before us was the Mutawalli of the  said Dargah  holding a  hereditary post  for several generations. Defendants  2 to  7 and  and one  Shaikh  Hasan Shaikh  Sultan  (since  deceased)  were  registered  as  the Mujawars of  the sald Dargah. The object of the Trust was to protect the  said Dargah  and the  Musjid  and  to  maintain worship at it. The properties of the Trust were described in Schedules ‘A’  and ‘B’ to the plaint. Properties in Schedule ‘A’ were  in the possession of defendant No.1 while those in Schedule ‘B’  were at  that time,  in the  possession of the Receiver who was joined as defendant No.9.      There had  been  considerable  litigation  between  the Mutawalli and the Mujawars of the Dargah in respect of their rights and  obligations. Ultimately, in Civil Suit No.712 of 1945, the  rights and  obligations of  the Mutawalli and the Mujawars were  crytalised and  the Court  held in  that suit that defendant  No.1 was  a hereditary  Mutawalli while  the predecessors of defendants 2 to 6 and defendant No.7 as also the deceased  Shaikh Hasan  were Kadimi  Mujawars having the right to  act as  attendants and servants of the said Dargah and  to   carry  on   their  traditional  duties  under  the supervision and  control of  the Mutawalli. Under the decree of the  Court, the  general management and possession of the Dargah and  its properties were to remain with the Mutawalli

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who had  to control  the Mujawars  in the discharge of their duties. The court also laid down the remuneration to be paid to the  Mutawalli and  the Mujawars. The court said that the mutawalli was  entitled to one-fourth of the gross income of the Dargah while the Mujawars were entitled to the remaining three-fourth  income   after  deducting  the  necessary  and traditional expenses  of the  management and  upkeep of  the Dargah.      The Charity  Commissioner, however,  contended that the Mutawalli and the Mujawars were not discharging their duties properly and  were not  prepared to  cooperate and carry out their respective duties. He, therefore, filed the above suit and prayed  that both  the Mutawalli and the Mujawars should be removed  and a  suitable scheme for the management of the Dargah should  be framed  by the court. The trial court held that it  would not  be proper to remove the Mutawalli or the Mujawars who held hereditary offices. But a  suitable scheme was required  to be  framed for the proper management of the Dargah. The  court accordingly  framed a  scheme  which  was annexed as  Schedule ‘A’  to the  judgment and decree. Under the scheme,  the court, inter alia, provided that the Dargah should be  looked after  by a  Board of Trustees. The scheme provided that  the number of trustees shall be three and one of the  trustees shall  be the  Mutawalli, that  is to  say, defendant No.1.  Two other nominated trustees were Professor Abdul Karim  Kamaruddin and  Shri  G.G.Khan,  Advocate.  The scheme 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 and  other expenses. After providing for various  expenses in  connection with the maintenance of the Dargah  and providing for a reserve fund for the purpose of repairs,  renovation  or  re-building  of  the  immovable properties belonging  to the trust, the scheme provided that out of  the balance left, the Mujawars be paid in a body 60% of the  income and  the remaining  40%  should  be  paid  as remuneration to  the trustees.  The amount  so paid shall be divided equally amongst the Mujawars and the trustees.      The Charity  Commissioner did  not file any appeal from this judgment  and decree.  The Mutawalli  and the Mujawars, however, filed  separate  appeals  from  this  judgment  and decree before  the High  Court. The  High Court  came to the conclusion  that  the  Mutawalli  had  not  rendered  proper accounts and  hence he  should not  be one  of the  trustees under the  said scheme. The High Court, therefore, passed an order modifying  the scheme  whereby the  name of  the first defendant was  deleted as  one of  the trustees  of the said Trust and  the right  of the lineal descendants of the first defendant to  be on  the Board  of Trustees under the scheme was also  taken away.  The court  also made some other minor alterations such  as permitting  the Mujawars  to take  away sherni or  prasad of a perishable nature. However, the value of the  sherni was  to be accounted for in the amounts to be paid to  the Mujawars.  The court directed that remuneration to be  paid to the Mujawars not exceeding 60% of the balance after taking into account the value of sherni would be fixed by the  Board of  Trustees in consultation with the District Judge. It also gave some incidental directions.      The present appeals are filed by the original defendant No.1, the  Mutawalli of  the said  Dargah. He  has contended before us  that he is the hereditary Mutawalli of the Dargah and has  looked after  the  management  of  the  Dargah  for several generations.  This hereditary  right to  act as  the Mutawalli ought  not to  have been  taken away  by the  High Court. We  find considerable  force in  this submission. The

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Charity Commissioner  did not  object to the Mutawalli being nominated as  one of  the trustees  of the  Trust under  the scheme framed by the District Judge. The High Court suo motu has come  to the conclusion that the Mutawalli should not be associated with the management of the Dargah. We do not find sufficient  grounds  for  depriving  the  Mutawalli  of  his hereditary right  as well  as  of  his  entitlement  to  the remuneration fixed  under  the  scheme.  The  Mutawalli  did render accounts  as directed  by the  High Court.  The  High Court  has   found  some  fault  with  these  accounts.  The accounts,  however,   have  been   audited  by  a  Chartered Accountant. The  amounts involved  are small. The High Court has doubted  some of the entries, particularly those showing Himmatkhan as  a tenant  of some  of the  lands and the rent received from  him. If the High Court had found the accounts to  be   unsatisfactory  it  could  have  given  appropriate directions for  their finalisation,  giving the Mutawalli an opportunity to  explain or  rectify the accounts. The court, however, has taken the drastic step of totally depriving the Mutawalli of his hereditary entitlement to the management of the Trust  by excluding  him from the Board of Trustees. The High Court  also deprived  him of all remuneration. The High Court also  did not  take into  account the  fact  that  the Mutawalli was  going to  be only  one of  the three trustees appointed under  the scheme framed by the court and that his right to receive payment under the scheme so framed would be only  after  the  trustees  had  provided  for  the  various expenses and contingencies which are set out in Clause 21 of the scheme.  In our  view, the scheme as framed by the trial judge provided adequate safeguards for the proper management of the  scheme. The  scheme also  preserved  to  a  suitable extent, consistent  with proper  management, the  hereditary rights  claimed  by  both  the  Mutawalli  as  well  as  the Mujawars, taking  into account  with suitable modifications, the decree  in the  civil suit  which had  determined  their respective  duties   and  obligations   as  well   as  their respective rights  to receive  remuneration. The  High Court also did  not take  into account the fact that the Mutawalli had never  made any claim which was adverse to the Trust and had shown his readiness and willingness to submit himself to such directions regarding the maintenance of accounts as the court would direct.      Looking to  all these  circumstances, the directions of the High  Court removing  the Mutawalli  as a trustee of the said Trust  as well  as taking  away the  provision  in  the scheme which  prescribes that  at least  one of the trustees shall be  a lineal  descendant of  defendant No.1,  are  not warranted. The  High  Court  also,  in  our  view,  was  not justified in  taking away  the right  of  the  Mutawalli  to receive remuneration as provided in the scheme framed by the trial judge.  These directions  of the  High Court modifying the scheme  are, therefore,  set aside and the provisions of the original scheme in this regard are restored.      The   appeals   are   accordingly   allowed.   In   the circumstances, however, there will be no order as to costs.