SHEIKH ABDUL KAYUM MULLA ALIBHAI Vs. MULLA ALIBHAI:MADRASAI HAKIMIA AND CORONATION HIGH SCHOOL SOCIETYTY

JUDGEMENT

(1.) This unfortunate litigation over a school which was started sixty years ago is one of the unhappy consequences of a feud that raised its ugly head in the Daudi Bohra Community many years ago. The School was started at Burhanpur by certain members of the Daudi Bohra Community of Burhanpur in the Year 1902. It was named Madrasal Faize Hakimia and its object was to impart religious and secular education to boys of the Daudi Bohra Community. Funds were collected for the purpose of the school from members of that community for the maintenance of the school. In the year 1908 English classes were added to the school and in 1911 it was raised to the status of a High School under the name "Madrasai Hakimia and Coronation High School". Some time before this on May 24,1909 one Daudi Bohra of Surat of the name of Abdul Hussain Abdullali Faizullabhai Muchhala made a Waqf of certain properties in Bombay for the benefit and advantage of this school at Burhanpur. For the management of this trust he appointed as trustees 12 gentlemen whom he mentioned as persons who had already been appointed trustees of the school. Only a few months after this another trust came into existence for the benefit of the same school, by a deed executed by six persons, all Daudi Bohras and all belonging to Burhanpur describing themselves as managers of the school. They created by the deed "Waqf and trust of their properties" which were mentioned in detail in the body of the deed. Eighty persons, including themselves were named as the trustees. It is further stated by the executants of the deed that all movable and immovable properties connected with the school shall vest in these trustees. It is provided in the deed that the trustees shall been entitled to govern, manage and administer the affairs of the school and shall have the power of framing rules and regulations from time to time for the benefit and efficient running of the school; and also have the power to appoint new trustees from time to time in accordance with such rules and regulations. These trustees managed the school and also the properties belonging to the school including the properties of which waqf was made in its favour by the trust deed of September 15, 1909 without any trouble till March 1917. In the course of such management some of the original trust properties were converted into new properties by the trustees with the help of additional donations received from members of the Daudi Bohara Community. Trouble started in 1917 when some members of the Community started declaring that Mullaji Taher Saifuddin Saheb who, according to the main body of the community was the Dai-ul-Mutalaq was not a Dai-ul-Mutalaq. About the same time four out of the 18 who were appointed by the trust deed of September 15, 1909 joined three other members of the Daudi Bohara Community of Burhanpur to form a society by the name of "Madrasai Hakimia and Coronation Society", the main purpose of which was to run the Hakimia and Coronation High and Primary Schools at Burhanpur. Among other objects were mentioned the development of branches of the school at different places; opening library or libraries at suitable centres; conducting newspaper or newspapers; editing and compiling and publishing books. In the Memorandum of Association it was provided that 12 persons named there in would form the governing body to whom the management of the affairs of the society shall be entrusted. It was further provided that properties of each and every description acquired for or given to Madrasai Hakimia and Coronation High School shall be vested in this governing body. The 10 persons who have been impleaded as defendants 2 to 11 are members of the governing body of the Society. From the time they assumed the management of the Madrasai Hakimia and Coronation High School as members of the Society they have been administering the properties of which waqf was made in favour of the school by the six gentlemen who executed the trust deed of September 15, 1909.

(2.) The suit out of which these appeals have arisen was started under S. 92 of the Code of Civil Procedure by 4 Daudi Bohra muslims who claimed to be interested in the trust properties set out in the Schedule to the plaint as members of the Daudi Bohra Community. Their main contention in the plaint is that the first defendant, the Hakimia Society and the 10 defendants Nos. 2 to 11 were not validly appointed trustees in respect of these trust properties. They prayed in this suit for a declaration that these defendants are not validly appointed trustees; for their removal from the management of these properties and for an order on them to render accounts on their administration of these properties. There was also a prayer for the appointment of proper and fit persons for the management of these properties in accordance with the provisions of the trust deed of September 15, 1909 and for the framing of a scheme for the administration of the trust - to which we shall later refer as the Burhanpur Trust -- if its was necessary. The ground on which the plaint claimed that these defendants were not validly appointed trustees was that they had not been appointed as such in accordance with the terms and conditions of the trust deed of September 15, 1909. According to the plaint, whatever entrustment took place by the constitution of the Hakimia Society was invalid in law as the persons who got this registered as the Hakimia Society had no right in law to vest these properties in the Society or the members of the governing body of that Society.

(3.) As further ground for removal of these defendants from the management of these properties the plaint set out a number of acts said to have been committed by them which it was alleged amounted to a breach of trust. One such act was the defendants action in throwing open the Madrasai Hakimia and Coronation High School to students other than the Daudi Bohra Community.