Sardarkhan
Rajadarkhan Vs. The Charity Commissioner & Ors [1995] INSC 718 (21 November 1995)
Manohar
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Mrs. Sujata V. Manohar,J.
CITATION:
1996 AIR 575 1996 SCC (7) 5 JT 1995 (9) 201 1995 SCALE (6)551
ACT:
HEAD NOTE:
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 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 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.
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