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Khoja Mushabhai Gulamhuseinbhai and anr. Vs. the Charity Commissioner, Gujarat State, Ahmedabad and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal Nos. 44 and 45 of 1966
Judge
Reported inAIR1971Guj230; (1971)GLR765
ActsBombay Public Trusts Act, 1950 - Sections 47(3), 47(6) and 47 AA; Bombay Public Trusts (Amendment) Act, 1960; Bombay Public Trusts (Amendment) Act, 1953 - Sections 47(3) and 47(6)
AppellantKhoja Mushabhai Gulamhuseinbhai and anr.
RespondentThe Charity Commissioner, Gujarat State, Ahmedabad and anr.
Appellant Advocate C.C. Patel and; S.R. Divetia, Advs. for; A.H. Mehta,
Respondent Advocate Y.B. Bhatt, Asstt. Govt. Pleader
Excerpt:
.....contravening provisions of section 35 and prosecuted under section 66 - city magistrate convicted trustees - trustees removed from trusteeship but no new appointments made - in light of provisions contained in sections 47 and 47aa first appeal not maintainable. - - therefore, it is the order of appointment made under sub-section (3) which has been made appealable to the high court by sub-section (6) of section 47. the said position holds good with regard to section 47 aa in light of the language used in that section. in our opinion, therefore, unless there is an order of appointment under section 47 aa read with sub-section (3) of section 47, no appeal will lie to the high court under sub-section (6) both in case of applications presented under section 47 as well as in case of..........first appeal no. 502 of 1966 and first appeal no. 503 of 1966.2. the facts of the case in letters patent appeal no. 44 of 1966, shortly stated, are as under.3. there is a trust registered under bombay public trusts act known as 'rahemtullabhai sidibhai trust' at viramgam. the objects of the trust are to enable the devotees to offer namaz and perform other religious rites. the mode of succession of trusteeship is nomination by majority of khoja shiva isna sharif jamat of viramgam. the opponents were the trustees of the said trust. in or about 1959 they advanced a sum of rs. 1000/- out of the trust funds to one alarakha alibhai. they were, therefore, charged with having contravened the provisions of section 35 of the bombay public trusts act and were, in that behalf, prosecuted under.....
Judgment:

S.H. Sheth, J.

1. These two appeals are directed against the orders of summary dismissal recorded by Mr. Justice J.B. Mehta in First Appeal No. 502 of 1966 and First Appeal No. 503 of 1966.

2. The facts of the case in Letters Patent Appeal No. 44 of 1966, shortly stated, are as under.

3. There is a trust registered under Bombay Public Trusts Act known as 'Rahemtullabhai Sidibhai Trust' at Viramgam. The objects of the trust are to enable the devotees to offer Namaz and perform other religious rites. The mode of succession of trusteeship is nomination by majority of Khoja Shiva Isna Sharif Jamat of Viramgam. The opponents were the trustees of the said trust. In or about 1959 they advanced a sum of Rs. 1000/- out of the trust funds to one Alarakha Alibhai. They were, therefore, charged with having contravened the provisions of Section 35 of the Bombay Public Trusts Act and were, in that behalf, prosecuted under Section 66 of the said Act. Criminal Case No. 1746 of 1964 was instituted in that behalf and the learned City Magistrate, 5th Court, Ahmedabad convicted the opponents on their pleading guilty to the charge. The opponents Nos. 1 and 3 each were fined Rs. 25/- and in default they were ordered to undergo simple imprisonment for 15 days. The opponent No. 2 was fined Rs. 70/- and in default he was ordered to undergo simple imprisonment for one month. Thereafter the Charity Commissioner made an application under Section 47A of the said Act to the District Court at Narol for appointment of new trustees. The allegation which he made was that there was a deliberate, intentional and flagrant breach on the part of the opponents of the provisions of the Bombay Public Trusts Act. The opponents Nos.1 and 3 resisted the application firstly on the ground that it was not maintainable for non-joinder of parties because, according to them, there were two more trustees Kasamali Panji and Yusuf Mohamedbhai who ought to have been made parties to the application. The second plea of defence which they raised was that the said offence was really committed by the opponent No. 2 alone because the opponent 2 was the managing trustee in sole possession of the trust property and he dealt with the trust property without consulting them. They, therefore, averred that they had nothing to do with the offence. If they had committed any offence, it was merely technical and nominal. According to them, they were mere onlookers and had no knowledge of the said transaction of Rs. 1000/-.

4. The opponent No. 2 did not raise any defence. He did not raise any objection to his removal from the trusteeship.

5. At the trial of the said application none of the opponents remained present even though they had filed their written statements. The learned advocate for the opponents Nos. 1 and 3 also was not present. The learned District Judge, therefore, heard the application ex parte and decided it. He relied upon the conviction and made the following order.

'Opponents are removed from trusteeship of 'Rahemtullabhai Sidibhai Trust', Viramgam. Inquiry to be held for appointment of new trustees. Opponents shall bear their own costs of this application and pay the Charity Commissioner his costs.'

6. The opponents Nos. 1 and 3 appealed to the High Court against the said order. It was First Appeal No. 502 of 1966 which came up for preliminary hearing before Mr. Justice J.B. Mehta who, having found no substance in that appeal, summarily dismissed it by his order dated 1st September 1966.

7. It is against that order of summary dismissal that Letters Patent Appeal No. 44 of 1966 has been filed.

8. The facts leading to Letters Patent Appeal No. 45 of 1966, briefly stated are as under.

9. There is a trust called 'Khoja Shiya Isna Sharif Masjid Trust' at Viramgam registered under the Bombay Public Trusts Act. The opponents are the trustees of that trust also. The mode of succession to trusteeship is that the surviving trustee or trustees can appoint a new trustee. Amongst the objects of the trust are (a) setting apart two buildings for Ibadat Masjids and for use as Madressa, (b) applying the income of other properties for Divabati etc. and for paying salary of the Molvi serving in the Madressa and (c) spending the remainder of the income for the welfare of the Jamat at Viramgam. The opponents who are the trustees of this trust are said to have committed the same offence as one alleged against them in Letters Patent Appeal No. 44 of 1966. The said conviction was relied upon by the Charity Commissioner. He, therefore, made an application under Section 47AA of the Bombay Public Trusts Act for appointment of new trustees. The defences which the opponents raised in this case were the same as in the other case. This application was also heard ex parte as all the opponents and the learned advocate for the opponents Nos. 2 and 3 had been absent at the hearing of the application.

10. The learned District Judge made the following order in the said application.

'Opponents are removed from trusteeship of the Khoja Isna Shariff Masjid Trust, Viramgam. Inquiry to be held for appointment of new trustees. Opponents shall bear their own costs of this application and pay the Charity Commissioner his costs.'

11. Against that order the opponents Nos. 2 and 3 filed in this High Court First Appeal No. 503 of 1966. It came up for preliminary hearing before Mr. Justice J.B. Mehta who having found no substance therein summarily dismissed it by his order dated 1st September 1966.

12. It is against that order of summary dismissal that Letters Patent Appeal No. 45 of 1966 has been filed.

13. At the hearing of these two Letters Patent Appeals the first contention which has been raised by the learned Assistant Government Pleader is that these appeals are not maintainable. In order to examine the contention raised before us it is necessary to turn to the provisions of Section 47 AA which provides as under.

'Where a trustee of any public trust is convicted of an offence punishable under this Act, or any amount surcharged on him under sub-section (1) of Section 41, the Charity Commissioner may apply to the Court for the appointment of a new trustee, and thereupon the provisions of sub-sections (3), (4), (5) and (6) of Section 47 shall apply as they apply to an application made under sub-section (1) of that section.'

Section 47 to which reference has been made in Section 47 AA deals with the power of Court to appoint new trustee or trustees, as the case may be, under the circumstances mentioned in sub-section (1) thereof. On reading Section 47 AA in light of the provisions of Section 47 to which reference has been made in Section 47 AA one thing which becomes clear to us is that an application which the Charity Commissioner may make under Section 47 AA is placed on par with the applications contemplated by sub-section (1) of Section 47. Having done so, the Legislature, in the matter of applications under Section 47 AA has by incorporation brought into play sub-sections (3), (4) (5) and (6) of Section 47 and, therefore, the provisions of sub-sections (3), (4), (5) and (6) of Section 47 apply to the applications made under Section 47 AA. It is sub-section (6) of Section 47 (applicatory to applications under Section 47 AA) which provides for appeal to the High Court. It is in the following terms.

'The order of the Court under sub-section (3) shall be deemed to be the decree of the Court and an appeal shall lie therefrom to the High Court.'

On reading sub-section (6), therefore, it is clear to us that an appeal to the High Court lies only against those orders which are made under sub-section (3) and which are within its compass. Sub-section (3) of Section 47 provides as under.

'The Court after making an inquiry may by order appoint the Charity Commissioner or any other person as the trustee to fill up the vacancy.'

Sub-section (3) contemplates only orders making appointments of the Charity Commissioner or any other person as the trustee to fill up the vacancy. It does not contemplate any other orders. Therefore, it is the order of appointment made under sub-section (3) which has been made appealable to the High Court by sub-section (6) of Section 47. The said position holds good with regard to Section 47 AA in light of the language used in that section. In our opinion, therefore, unless there is an order of appointment under Section 47 AA read with sub-section (3) of Section 47, no appeal will lie to the High Court under sub-section (6) both in case of applications presented under Section 47 as well as in case of applications presented under Section 47 AA.

14. The orders of the learned District Judge passed in these two cases and reproduced by us hereinabove show that the opponents have been removed from the trusteeship of the respective trusts but no new appointments have been made. In fact, both the orders clearly show that the appointment of new trustees has been deferred pending an inquiry to be made in regard to the mode of succession and other incidental matters. In our opinion, therefore, in light of the provisions contained in Section 47 AA read with sub-sections (3) and (6) of Section 47 the First Appeals which were filed in this High Court were, in absence of any order of appointment, incompetent and were, therefore, not maintainable. If the First Appeals were not competent under sub-section (6) of Section 47, then Letters Patent Appeals filed against the orders recorded in them would be much less maintainable. In our opinion, therefore, both the Letters Patent Appeals are incompetent and not maintainable.

15. In the view which we take it is not necessary for us to examine the merits of the contentions raised by the learned advocates before us.

16. In the result, both the Letters Patent Appeals are dismissed with costs.

17. Appeals dismissed.


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