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Mohamad Haidar Mujawar Vs. Jamal Haidar Mujawar and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberFirst Appeal Nos. 804 of 1957 and 56 of 1967
Judge
Reported inAIR1969Bom328; (1969)71BOMLR38
ActsBombay Public Trusts Act, 1950 - Sections 70-A; Bombay Public Trusts (Amendment) Act, 1954
AppellantMohamad Haidar Mujawar
RespondentJamal Haidar Mujawar and ors.
Appellant AdvocateS.B. Bhasme, Adv.
Respondent AdvocateN.S. Shrikhande, Adv. and ;V.H. Gumaste, Govt. Pleader
Excerpt:
.....further inquiry whether restricted.;under section 70a of the bombay public trusts act, 1950, the charity commissioner has jurisdiction to call for the record and proceedings of any case falling within section 70 of the act decided by the deputy or assistant charity commissioner either before or after the coming into force of section 70a of the act and make any appropriate order that is called for.;phirdosh v. state of bombay (1939) 61 bom. l.r. 1559 and rustomji dossabhai v. bai moti (1939) 41 bom. l.r. 1310, referred to.;the powers of the charity commissioner under section 70a of the act of calling for evidence or directing further inquiry are unrestricted. but this discretion has to be exercised judicially. - - , the appellant failed in that suit. the learned joint charity..........an order made by the learned district judge at kolhapur setting aside the order made by the joint charity commissioner in a revisional application. the genesis of this dispute may be very shortly stated. in kolhapur city there is a darga of one hajrat pir babu jamal. there are two families interested in this darga, one is the family of mutawallis and the other of mujawars. the appellant and respondent no. 1 are the sons of one haidar babaji, who died in 1926. he was the mujawar and had eight annas share in the emoluments. he made a will by which he directed his sons i.e the appellant and respondent no. 1 to do the management of their shares by turns in certain manner. respondent no. 1 is the elder son and the appellant is the younger son of the said haidar. after the death of haidar,.....
Judgment:

Patel, J.

1. First Appeal No. 56 of 1967 arises out of an order made by the learned District Judge at Kolhapur setting aside the order made by the Joint Charity Commissioner in a revisional application. The genesis of this dispute may be very shortly stated. In Kolhapur city there is a Darga of one Hajrat Pir Babu Jamal. There are two families interested in this Darga, one is the family of Mutawallis and the other of Mujawars. The appellant and respondent No. 1 are the sons of one Haidar Babaji, who died in 1926. He was the Mujawar and had eight annas share in the emoluments. He made a will by which he directed his sons i.e the appellant and respondent No. 1 to do the management of their shares by turns in certain manner. Respondent No. 1 is the elder son and the appellant is the younger son of the said Haidar. After the death of Haidar, the management was done in accordance with the terms of the Will. In fact, the appellant managed the entire property of the Darga and sent respondent No. 1, who was staying outside, moneys from time to time pertaining to his share. It is alleged that according tot the custom of the management of this Darga the managers appropriate what remains after the legitimate expenses of the Darga are met, as their share for the service. In 1950 respondent No. 1 came back to Kolhapur and started record of rights proceedings for change in the entries. Until then the property stood in the names of the appellant and respondent No. 1. By these proceedings he sought to have property transferred to his name alone. Fortune favoured him and he succeeded in getting a final order from the Government in his favour. This order was made by the Government on February 18, 1954. Applications were also made to the Charity Commissioner in 1952 under Section 19 of the Act both by the appellant and respondent No. 1 in respect of eight annas share. The Assistant Charity Commissioner by his order February 18, 1954 entered the name of respondent No. 1 as the manager. The appellant instituted a suit in the Court of the Civil Judge, Senior Division, Kolhapur, on August 19, 1955 for a declaration that he was a sharer in the management of the Darga and that he was entitled to four annas share out of the income., The appellant failed in that suit. Against the judgment of the learned trial Judge, he filed an appeal (First Appeal No. 804 of 1957) in this Court. This appeal came up for hearing before Shah J. and myself on April 11, 1963. We heard the arguments for a considerable time both on the point of law involved and on merits. Mr. Bhasme, for the appellant, then applied that he should be allowed to amend the plaint contending that according to the custom prevailing in respect of this Darga the Mujawarship was divisible and the Mujawars were entitled to appropriate the balance remaining out of the income after the expenses of the Darga were met. After hearing Mr. Shrikhande, for respondent No. 1, we allowed the amendment and remitted the matter to the trial Court for determining afresh issues arising out of the amendment. After remand, the learned Judge submitted his findings. The matter then again came before myself and Abhyankar J. At that stage, it was found that there would be difficulty in the way of Mr. Bhasme by reason of the decision of the Assistant Charity Commissioner. The matter was, therefore, adjourned to enable Mr. Bhasme to make an application to the Charity Commissioner under Section 70-A of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act).

2. Accordingly, an application was made on behalf of the appellant to the Charity Commissioner in revision under Section 70-A of the Act. In that application the appellant stated all that had happened so far and further said that large volume of evidence was led after the remand before the learned trial Judge and that that evidence if received in this matter would make a lot of difference to the ultimate decision about the rights of the appellant in the Mujawarship. The learned Joint Charity Commissioner, who heard the matter, after being satisfied that it was a case for his interference, set aside the order made by the Assistant Charity Commissioner and remitted the matter for a fresh inquiry only in respect of the issue about the appellant's right to a share in the Mujawarship.

3. Respondent No. 1 filed an application to the District Court under Section 72 of the Act, which was heard by the learned District Judge. The learned Judge took the view that the powers under Section 70-A of the Act are very limited. They are akin to those under Section 115, Civil P. C. exercised by the High Court in respect of decisions of the Courts subordinate to it and that the Joint Charity Commissioner could not have remitted the matter for further inquiry and also because there was delay in making of the application under Section 70-A of the Act. He, therefore, set aside the order of the Joint Charity Commissioner and dismissed the application. The appellant comes to this Court by First Appeal No. 56 of 1967.

4. It is difficult to agree with the conclusion of the learned District Judge on the interpretation of Section 70-A of the Act. This Act was originally passed in 1950 and the intention behind this Act was to see that public trusts were properly managed and that funds belonging to such trusts were not misused by the managers, trustees, Shebaits, Mathadhikaris, Mujawars and Mutawallis of such trusts. With a view to have record of all the public trusts provisions have been made for decisions regarding several questions that may arise while giving effect to the provisions of the Act. Section 19 of the Act prescribes the statutory issues. They are:-

'(i) Whether a trust exists and whether such trust is a public trust,

(ii) Whether any property is the property of such trust,

(iii) Whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction,

(iv) the names and addresses of the trustees and manager of such trust,

(v) the mode of succession to the office of the trustee of such trust,

(vi) the origin, nature and object of such trust,

(vii) the amount of gross average annual income and expenditure of such trust, and

(viii) any other particulars as may be prescribed under sub-section (5) of Section 18.'

The Act prescribes the duties of the trustees and lays down the method of submitting of accounts and managing the property of public trust. It also lays down the duties of the Charity Commissioner, Deputy and Assistant Charity Commissioners. They are required under the Act to take several decisions in respect of such public trusts. Having made these provisions, necessarily the question of appeal arises. Originally, Section 70 of the Act provided an appeal to the Charity Commissioner against the decision of the Deputy or Assistant Charity Commissioner in respect of five orders i.e. the finding and order under S. 20; the finding under Section 22; the finding under Section 22-A; the finding under Section 28 and the order under sub-section (3) of S. 54 of the Act. By sub-s. (2) it further provided that after the expiry of sixty days from the recording of the finding or the passing of the order, as the case may be no appeal shall be maintainable. Sub-section (3) contains the powers of the Charity Commissioner in respect of an appeal filed before him.

5. In 1954 by Section 3 of the Bombay Act No. 59 of 1954, Section 70-A came to be added. This section gives powers to the Charity Commissioner in cases falling within Section 70 to call for and examine record and proceedings of any case decided by the Deputy or Assistant Charity Commissioner. The question is whether this section is applicable to the facts of the present case and whether the Charity Commissioner was right in exercising his powers under Section 70-A of the Act.

6. Mr. Shrikhande, on behalf of respondent No. 1 has contended firstly that Section 70-A was added by Act No. 59 of 1954, and as it have a right of revision for the first time to the Charity Commissioner in 1954, it could not affect orders which were already made by the Deputy Charity Commissioner. In short, it has not retrospective effect. He relies for this purpose upon the decision of this Court in Phirdosh v. State of Bombay : (1959)61BOMLR1559 decided by Chainani C. J. and V. S. Desai J. The matter arose under the Bombay Tenancy and Agricultural Lands Act, 1948. There also a section giving powers of revision to the Revenue Tribunal was added by the Amending Act of 1957 and the question was whether the powers of revision could be exercised in respect of a matter which was decided by the subordinate authorities prior to that date. The learned Judges, having regard to the provisions of the Amending Act which made certain sections of the amendment retrospective in operation, held that that section had no retrospective effect. They also relied for this purpose upon the general principle that every statute is presumed to be prospective and not retrospective unless it is specifically made so or necessarily intended.

7. As to the principle enunciated by the learned Judges there can be no two opinions except that it requires a slight qualification which apparently was not pointed out to the learned Judges. The qualification is that the presumption does not apply to procedural laws. That, there is a distinction between a revisional application and an appeal cannot be denied. Right of appeal is given to a litigant, and, if given, appeal lies as a matter of law and there is no option to the Tribunal to which the appeal lies, of refusing to interfere whether it likes it or not. The powers of revision, however, are a class by themselves and are exercisable even suo motu without even an application being made by a party. There is no right in the party as such. It is merely a discretionary power to be exercised by the Court or tribunal in order to see that ends of justice are not defeated. It is not to be exercised for technical reasons merely to satisfy the whims of the litigant.

8. Apart from this, the question as to whether these powers were intended to be applicable in respect of matters which were decided prior to that date must also depend to a great extent upon the terms of the Amending Act itself and the circumstances under which the provision came to be added. Unlike the Amending Tenancy Act, in the present case in the Amending Act No. 59 of 1954, there is no provision which enacts two kinds of sections in the act some retrospective and some prospective. The indication, therefore, if at all any afforded by such section in the Tenancy Act is not available here. We must then go to the purposes for which the Act was passed and the nature of the provisions.

9. These inquiries are administrative inquiries and do not have the status of suit as decided by a Civil Court. Though some provisions of the Code of Civil Procedure have been made applicable for the purposes of having some evidence before the inquiry officer, who is generally the Assistant Charity Commissioner, there is not that formality which one expects in a Civil Court. In a large number of cases, lawyers do not even appear at such inquiries, though in some cases they may appear. Most of the parties appear by themselves and they have no legal advice. These are inquiries which are intended to be done within a limited period of time. Many litigants may be hazy about the issues that arise in the case and may not realise the nature of evidence required. There can be no doubt that the legislature must have felt that the legislature could have occurred to a large number of persons who could not appeal in time and it was necessary to relieve the hardship caused, and it could be only for that reason that the legislature added Section 70-A in the Act. In short, this is a remedial provision for preventing perpetuation of injustice. That this could be the object of the legislature can be seen from the fact that though it has called this a revisional power, the powers that are given to the Charity Commissioner are as wide as in appeal. It is true that being a revisional jurisdiction, it is to be exercised in the interests of justice and not for technical reasons.

10. In this connection we may also refer to the decision of a Division Bench of this Court in Rustomji Dossabhai v. Bai Moti : AIR1940Bom90 in relation to Section 53-A of the Transfer of Property Act which came to be incorporated in the Act V of 1882 in 1929. The Amending Act became statute on April 1, 1930. By that Act a large number of sections were added to the act of 1882 and Section 63 of the Amending Act clearly provided that certain provisions of the Amending Act would have retrospective effect. Section 53A was not included in that section, and yet this Court held that that section had retrospective effect. Sir John Beaumont C. J., having regard to the language used i.e, 'where any person shall have contracted or shall hereafter contract' held that Section 53-A had retrospective operation. Other cases where similar view has been taken are not wanting. In Section 70-A of the Act the words are 'in any of the cases mentioned in Section 70 call for.' There is no reference to any order as such. There can be no contention that the present case is not one mentioned in S. 70. Having regard, therefore, to all the circumstances of the case and having regard to the words used in Section 70-A of the Act which are wide enough to include any decision made in cases referred to in Section 70 whether in the past or in future, we hold that Section 70-A of the Act applies to every case and the Charity Commissioner has got jurisdiction to call for the record and proceedings of any case decided by the Deputy or Assistant Charity Commissioner either before or after the coming into force of the said section and make any appropriate order that is called for.

11. The second question is whether the learned District Judge was right in his view that the scope of Section 70-A is very limited and is of the same extent as that of Section 115, Civil P. C. In this connection, we may point out that the provision of S. 72 (1-A) provides that in any application filed against the decision of the Charity Commissioner to the District Court, the parties additional evidence before the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. This later portion of the provision is cast in the same form as O. 41, R. 27, Civil P. C. The legislative intent, therefore, is very clear that in an application under Section 72 the Court can receive additional evidence only under limited circumstances. Such provision is absent in Section 70-A. Where there is a provision of law in the Act itself and when such provision is absent in Section 70-A, it seems to us that the learned District Judge was not right in restricting the scope of Section 70-A of the Act. The cases cited in the judgment of the learned District Judge relate essentially to the powers exercisable under the Civil Procedure Code in an appeal and revision and can have possibly no bearing on the scope of Section 70-A of the Act. The words 'or he may direct...to make further inquiry or to take additional evidence' occur both in Sections 70 and 70A. This clearly suggests that his powers of calling for evidence or directing further inquiry are unrestricted. The restriction is prescribed only when the matter comes to the District Court. Of course, the discretion has to be exercised judicially. The learned District Judge was, therefore, not right when he held that no such evidence can be produced before the Charity Commissioner. The two decisions in State of U. P. v. M. L. Srivastava, : (1958)IILLJ273SC and Sonabai v. Gotiram, : AIR1956Bom160 relied upon by Mr. Shrikhande have no application.

12. It is argued that in any case, the principles analogous to Order 41, Rule 27, Civil P. C. must be held to be applicable even to a revisional application before the Charity Commissioner. However, having regard to the manner of making inquiries under the Act we do not think that such a rigid view is possible. It is necessary in order that the ends of justice may not be defeated, that the Charity Commissioner should have somewhat wider latitude in the exercise of his discretion as to in what cases he would permit additional evidence to be led and in what cases he would not.

13. It was then argued that in the application it was not stated that the additional evidence which the appellant sought to produce was not available to him earlier and secondly, that evidence was not even produced before the Joint Charity Commissioner. It is no doubt true that such a statement does not find a place in the application. But then the history of this litigation has to be borne in mind. The real points which arose in the case were not crystallised in the minds of the parties until the First Appeal came to be argued before us on the first occasion. At that time, we had occasion to go through several Wat Hukums of Kolhapur State and it was only after examination of these provisions that the questions which arose in the case were crystallised. It was then that Mr. Bhasme made an application for amendment which we granted. After remand, the parties examined some witnesses and produced some ancient documents and it is in these circumstances that when the matter came before us again, we adjourned the matter in order to enable Mr. Bhasme to make an application under Section 70-A of the Act. No doubt, these documents were not taken from the record of this Court and produced before the learned Joint Charity Commissioner. But then, the Advocate for the appellant did make a statement that all these documents were produced after remand in the trial Court, and the Advocate for respondent No. 1 was not able to contradict this statement. If that is so, we do not see why the Joint Charity Commissioner should not rely on the statement made by the Advocate at the Bar that such evidence was produced. In fact, even a mere perusal of the judgment of the trial Court if called for by the Joint Charity Commissioner would have shown that such evidence was produced. In our view, there is no merit even in this contention.

14. Lastly, it is contended by Mr. Shrikhande that there has been an inordinate delay and, therefore, the Joint Charity Commissioner ought not to have exercised his discretion to reopen the enquiry. Now, it is true that the Assistant Charity Commissioner had decided the statutory issues on February 18, 1954. But the appellant filed a suit on August 19, 1955 contending that he had a share in the Mujawarship rights. Not only that he pursued the suit right until the revisional application was made. Some of the statements of fundamental principles appearing in U. N. Mitra's Law of Limitation, Vol. I, 8th Edition, on pages 5 to 9 regarding delay and latches can therefore, have no application to the present appeal. It is not as if the appellant has slept over the matter for a period of ten years and suddenly woke up from his slumbers and made an application to the Joint Charity Commissioner. As he was fighting for his rights for all these years, it is impossible to say that because of delay, the Joint Charity Commissioner ought not to have exercised his discretion.

15. We accordingly set aside the order made by the learned District Judge and restore the order made by the Joint Charity Commissioner.

16. Normally we would have confirmed the order made by the Joint Charity Commissioner directing the Assistant Charity Commissioner to determine that particular issue de novo. But then the result of any such course would be to give rise to a spate of appeals one after the other and it might take a very long time. All the Advocates are agreed that in order to shorten this litigation, we should retain First Appeal No. 56 of 1967 on our file and call for the findings to be certified by each of the authorities below to this Court. They further agree that the evidence led in suit No. 38 of 1955 both before and after remand should be treated as evidence before the Assistant Charity Commissioner. If the parties still want to lead some more additional evidence, the Assistant Charity Commissioner will permit them to do so. After having considered the entire evidence and the law he should make his findings and certify them to the Charity Commissioner within three months from the date of the record reaching the Assistant Charity Commissioner. The Charity Commissioner within one month to the District Court from the date of receipt by him and the District Court should certify the said findings to this Court within one month from the date of receipt by it.

17. The record of the suit be sent to the Assistant Charity Commissioner along with the copy of the judgment immediately.

18. Both these appeals to be placed for hearing the findings are received.

19. Order accordingly.


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