CHUNILAL JASHRAJ LODHA Vs. MUNSHI MAHMADHUSAIN SHAIKH

JUDGEMENT

(1.) The second contention which he has raised is that the suit was not maintainable in absence of a prayer for removal of defendant No. 1 from the trusteeship or managership of the trust in question. According to Mr. Peerzada if defendant No. 1 was not removed from her position she could not be said to be in unlawful or unauthorised possession of the suit properties. According to him therefore in that view of the matter the suit for possession filed by the plaintiffs against defendant No. 1 would not be maintainable. So far as defendant No. 1 was concerned it was held in Civil Appeal No. 281 of 1955 which was decided by the learned Extra Assistant Judge Ahmedabad on 29th November 1956 that she was the manager of the trust in question. That finding has now be- come final and conclusive and binds the parties. That appeal arose out of Regular Civil Suit No. 1041 of 1950. It was a suit between the present plaintiff No. 1 and another on one hand and defendant No. 1 on the other hand in which relief was sought against defendant No. 1 in respect of the trust in question and the properties belonging to it. It therefore cannot be contended that defendant No. 1 was the trustee; All that can be said is that defendant No. 1 was the manager of the trust in question. The question which therefore arises for our consideration is whether it is necessary in order to maintain the suit to pray for the removal of defendant No. 1 from her managership. Mr. Peerzada has tried to rely upon sub-sec. (8) of sec. 2 of the Bombay Public Trusts Act 1950 in sup- port of his contention that a manager is in substance a trustee and that there is no distinction between the two. We are unable to uphold that argument raised by Mr. Peerzada. Sub-sec. (8) of sec. 2 of the Bombay Public Trusts Act 1950 defines manager in the following terms.

(2.) On behalf of defendants Nos. 1 3 4 and 5 Nurbibi was examined as a witness and her deposition appears at Ex. 117. She has in terms stated in her evidence that defendant No 1 her mother was merely the manager or the Vahivatdar of the trust in question and that she was not even a mujawar. In light of the earlier decision on the question (Ex. 101) and in light of the evidence of Nurbibi and further in light of the provi- sions contained in sub-secs (8) and (18) of sec. 9 of the Bombay Public Trusts Act the maximum that can be said in favour of defendant No. 1 is that she was the manager of the trust in question. If she was the manager of the trust in question was it necessary for the plaintiffs to pray for her removal from the managership in order to maintain that suit ? Defendant No. 1 in her written statement filed in the present suit claimed her ownership of the public trust properties. She had been claiming rights since 1946 when Miscellaneous Application No. 113 of 1946 was filed against her under the Wakf Act. The order Ex. 118 recorded in that Miscellaneous Application amply bears out the fact that since 1946 she had been claiming her ownership of the trust properties. She never thought therefore that she was the manager who was required to discharge certain obligations in respect of the trust and the properties belonging to it but she thought that she was the owner who could dispose of the properties in any manner she liked. The alienation made by her of a part of the suit properties on 9th October 1951 Ex. 103 and her act of joining as confirming party defendants Nos. 3 4 and 5 in granting lease (Ex. 105) for a period of 65 years of that property to defendants Nos. 6 7 8 and 9 eloquently show that she had been claiming adverse title to the suit properties which have been public trust properties. In our opinion a suit for recovery of possession of trust properties from the manager of a public trust who claims adverse title to them and sets up that title in him is maintainable without any prayer for his removal from managership. Once a manager claims an adverse title forfeits his right to be the manager and becomes a trespasser it is not necessary to make against such a person prayer for his removal from his managership in order to maintain against him a claim for possession of the trust properties.

(3.) A manager or Mutawalli is not a trustee in its technical sense. It has been held by the Supreme Court in AHMED G. H. ARIFF ETC. V. THE COMMISSIONER OF WEALTH TAX CALCUTTA A.I.R. 1971 SUPREME COURT 1691 that a Mutawalli has no right in the property belonging to the wakf and that he is not a trustee in the technical sense. His position is merely that of a superintendent or a manager. A Mutawalli has no power without the permission of the Court to mortgage sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so.