Partly allowed

Shivaji Dhondiba Hajgude and Anr. v. Shukracharya Murlidhar Vardole and Anr.

Bombay HC18 Aug 2004FA/860/2003

Case brief

AI extract

What is this about?

The High Court partly allowed the appeal, setting aside an order appointing new trustees for a public trust without serving notice on hereditary heirs. The appointment order was remanded to the Joint Charity Commissioner to allow proper enquiry and notice to legal heirs before deciding afresh.

What did the court decide?

Impugned order set aside; application remanded to Joint Charity Commissioner for fresh hearing after proper enquiry and notice to legal heirs; appointed trustees allowed to act as ad-hoc trustees.

Shivaji Dhondiba Hajgude and Anr. Vs… — Pension and Retirement Benefits | Bombay HC (2004)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

APPELLATE SIDE

¶3

FIRST APPEAL NO. 860 OF 2003

¶4

Office notes, office memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders.

¶5

Court’s or Judge’s orders.

¶6

Shri I.M.Khairdi for the Appellants.

¶7

Shri S.S.Salunke for the Respondents Nos.1, 3 to 9.

¶8

CORAM : ABHAY S.OKA, J.

¶9

DATED : 18th August, 2004.

¶10

P.C.:

¶11

By order dated 9th August 2004, the parties were informed that the First Appeal will be decided finally at admission stage. Accordingly the First Appeal is taken up for final hearing.

¶12

2.	The		Challenge in the	First	App	eal is to	the
Judgment	an	d	Order dated 17t	h J	uly	2002 passed	by
the	learned		Joint Cha	rity	C	ommissioner,	Latur
Region,	La	tur,	in an Appli	cation	un	der section	47
of	the	Bo	mbay Public T	rusts	Act,	1950 (her	einafter
referred	to	a	s "the said	Act	of	1950").	The
dispute	is	a	bout the appoint	ment	of	Trustees of	a
Public	Trust		Kurmadas Deosthan		having	its office	at
Laul,	Taluka		Madha, Dist.		Solapu	r. By	the
impugned	or	der	a finding	was	reco	rded that	the
founder	trus	tees	were not	alive	and	as the	legal

¶13

representatives		of	t	he	found	er	trust	ees ha	ve not
approached	to	take	cha	rge	of	the	De	osthan,	a case
was made		out	for		appo	intme	nt	of	Trustees.
Accordingly		the	lea	rned	Jo	int	C	harity	Commissioner
appointed	Res	pondent	No	s.3	to	9	as	Trustee	s of the
said Trust.		T	he	Appl	ication	u	nder	section	47 of

¶14

the said Act of 1950 was made by the Respondent No.1 herein.

¶15

3.	Shri	Khairdi,	the	lea	rned	Advoc	ate a	ppearing
for	the A	ppellants, poi	nted	o	ut th	at	Schedule	I
maintained	as per	Rule 5	of		the	Bomba	y Public	Trust
Rules,	1951	shows that	the		mode	of	succession	to
trusteeship	in	respect	of		Respo	ndent	No.2-Trust	is
hereditary.	He	pointed	out		that	nam	es of	the
hereditary	tru	stees were	m	enti	oned	in	the	Schedule
I.	The App	ellant No.1	is	the	son	of	one D	hondiba
and	the Appell	ant No.2 i	s th	e	son	of	Badshah,	who
were	the	Trustees as	recor	ded	in	the	Schedule	I.
He	submitted	that when	the		mode	of	succession	to
trusteeship	was	heredit	ary,		no	tice	of	the
application	under	section	47	of	the	said	Act	of
1950 o	ught to	have been	giv	en	to	the	Appellants	and
all	other	legal repre	sentati	ves	of		the	original
Trustees.	He	submitted	tha	t	the	daily	Pooja	is
being	performed	in the T	emple		by	the	Appellants	and

¶16

the Respondents Nos.3 to 9 have not taken charge as

¶17

Trustees.

¶18

The learned Advocate appearing for the Respondents Nos.3 to 9 submitted that it was for the legal representatives of the deceased Trustees to come forward and to apply for being appointed as Trustees. As they failed to do so, the order under section 47 of the said Act of 1950 is passed by the Authority. He submitted that the Trustees appointed under the said order have taken charge. He disputed that daily pooja is being performed in the temple by the Appellants.

¶19

I have considered the rival submissions. From the copy of the Schedule I annexed to the Memo of Appeal, I find that names of three persons have been mentioned as Trustees of the Respondent No.2-Trust and the mode of succession to trusteeship is shown as hereditary. The Appellants Nos.1 and 2 are the sons of the two Trustees mentioned in the Schedule I. Shri Khairdi learned Counsel appearing for the Appellants fairly states that there are other legal representatives of the deceased Trustees. Admittedly no effort has been made to serve the notice of the application under section 47 of the said Act of 1950 to the legal representatives of the erstwhile Trustees who are dead. All that is recorded in the order is that the Inspector from the office of the Assistant Charity Commissioner, Solapur, had invited

¶20

objections from the villagers by beating of drums

¶21

and that he also made enquiries.

¶22

6.	Schedule	I	discloses the mode of successi	on to
the p	ost of T	rustees	as hereditary and if the	names
of	the legal		representatives or heirs of	the
deceased	Trustees	we	re not available on record,	the
learned	Joint	Cha	rity Commissioner could	have
directed	the	As	sistant Charity Commissioner or	the
Inspector	from	his	office to make enquiry	and
ascertain	the nam	es	and addresses of the said	legal
represent	atives	who	were entitled to be c	onsidered
for	appointment	to	the post of Trustees.	However,
such	a cou	rse	was not followed. Considering	the
entry	in Sch	edule	I, the Appellants were	entitled
to	a notice	of	the proceedings under section	47 of
the	said Act	of	1950. As the said notice is	not
given,	the imp	ugned	order will have to be	quashed
and	set aside	and	the the application under	section

¶23

47 will have to be remanded to the learned Joint

¶24

Charity Commissioner.

¶25

7.	The	que	stion	which ari	ses as	to w	hat shoul	d be
the	arran	gement		till dis	posal	of the	app	lication
under	sectio	n	47.	The	order	impugned	has	been
passed	on	17th	July	2002.	In	Civil	Application	for
stay	filed	by	the	Appellants,	this	Court	has	issued
rule	and	no	ad-int	erim relie	f was	granted	in	view
of	the	pos	ition	that	none	of	the	legal

¶26

representatives of the deceased Trustees have been appointed as Trustees of the Trust. Till the proceedings before the learned Joint Charity Commissioner are decided, the Trust property has to be maintained and administered. All the legal representatives of the deceased Trustees are not before me. Considering the interests of the Trust, it is desirable that the Respondents Nos.3 to 9, who were appointed as Trustees under the impugned order should be allowed to act as Adhoc Trustees of the Trust by way of interim arrangement pending the disposal of the proceedings before the learned Joint Charity Commissioner. Till the proceedings under section 47 of the said Act of 1950 are finally decided, the said Respondents Nos.3 to 9 will not take any major policy decision and will look after the day to day management of the said Trust. During the pendency of the proceedings, the Appellants and the other legal representatives of

¶27

the original Trustees will be entitled to perform

¶28

daily Pooja in the Temple.

¶29

Hence the following order:

¶30

(i) The Appeal is partly allowed. The impugned Judgment and Order is set aside.

¶31

(ii) The Application No.5 of 2001 filed by the Respondent No.1 is remanded to the Joint

¶32

Charity Commissioner, Latur Division, Latur

¶33

for deciding the same afresh.

¶34

The parties to	this Appeal	remain
present before	the Joint	Charity
Commissioner on 20th Septemb	er 2004 at 11.00
a.m. for fixing the schedule of h	earing.

¶35

The	learned Joint Ch	arity Commissione	r will
call	for the report	from the	Assistant
Charity	Commissioner,	Solapur,	for
ascertain	ing the names	of all the	legal
heirs	of the deceased	Trustees and	will
issue	notice to the sai	d legal heirs	and
represent	atives of the	deceased	Trustees.
The	Appellants are also	directed to	submit
names	and addresses of	the legal heirs	and
represent	atives of the	deceased	Trustees
which ar	e within their knowledge on or
before 20	th September 2004.

¶36

(v)

¶37

The	learned	Joint	Charity	C	ommissio	ner will
decide	the	applicat	ion		after	giving
opportunity	of	being	heard	to	all	concerned
parties.	The	Applic	ation sh	all	be	decided
expeditiously	as possible and	preferabl	y on

¶38

or before 30th April 2005.

¶39

(vi) Till disposal of the Application, the

¶40

Respondents		Nos.3 to 9 will continue t	o act
as adhoc		Trustees of the Re	spondent
No.2-Trust.		The Respondents Nos.3 to 9	will
not take		any major policy decisions	till
disposal of		the proceedings before the	Joint
Charity	C	ommissioner without	prior
permission	of	the learned Joint	Charity
Commissioner.		Till disposal of	the
Application,	the	Respondents Nos.3 to 9	will
not prev	ent	the Appellants and other	legal

¶41

representatives of the deceased Trustees

¶42

from performing daily Pooja at the Temple.

¶43

(vii) All contentions on merit are kept open.

¶44

(viii)

¶45

The direction given by this order in favour of Respondents Nos.3 to 9 to act as adhoc Trustees is naturally subject to the final order which may be passed in the said

¶46

proceedings by the learned Joint Charity

¶47

Commissioner.

¶48

(ix) Parties to act on authenticated copy of this

¶49

order.

¶50

Judge.

Shivaji Dhondiba Hajgude and Anr. v. Shukracharya Murlidhar Vardole and Anr.

Case brief

What is this about?

What did the court decide?

Shivaji Dhondiba Hajgude and Anr. v. Shukracharya Murlidhar Vardole and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The Chief Officer, Phaltan Municipal Council Vs the State of Maharashtra and Ors.

Shri Shamsing Bahadursing Pardeshi and Another Vs Shri Magansing Bhadursing Pardeshi and Others

Vasudeo Vitthal Relekar Vs Arunsidhayya Jangam and Ors.

Pandu Dadu Jadhav Vs Maruti Mahadu Khambale

Shivaji Dhondiba Hajgude and Anr. Vs Shukracharya Murlidhar Vardole and Anr.

Dr.Mrs.Jyotsna Subhash Modak Vs Dr.Smt.Gangubai Alias Shalinibai Tilak and Ors.