AJAM MOHAMMAD HATIN Vs. YUSUF MOHAMMAD BHARUCHA

JUDGEMENT

(1.) This writ application arises out of an application under sec. 47 and 47AA of the Bombay Public Trusts Act 1950 (hereina- fter referred to as the Act) made by the petitioners to the District Court for the removal of the first respondent and one Kasam Mohmad Ajam Ismail (since deceased) as trustees and appointment of new trustees of a public trust which is registered under the Act as Sheth Azam Aref Bham 1 Wakf Rander. Since the other trustee whose removal was sought by the applicants died pending the application the only question which survived for consideration of the District Court was whether any ground for the removal of the first opponent as a trustee was made out and the learned Assistant Judge found that no such ground was made out under sec. 47 and that an application for removal of the first opponent as a trustee under sec. 47AA was not maintainable at the instance of the petitioners. It is this decision which is under challenge in the present petition.

(2.) Now the application for removal of the first opponent as a trustee was made on two grounds: first that the said opponent was physically incapable to manage the affairs of the trust on account of his old age and affliction by paralysis and secondly that the said opponent was convicted for an offence punishable under the Act. Paragraphs 4 and 5 of the appli- cation make it clear that for the purposes of the first ground of removal sec. 47 was invoked and for the second ground sec. 47AA was invoked. As regards the first ground the learned Extra Assistant Judge recorded the following finding:

(3.) So far as the question of removal on the ground of physical inability is concerned there is a clear finding of fact recorded by the learned Extra Assistant Judge and I am unable to see my way to interfere with the same. In fact Mr. Sanjanwala learned Advocate appearing on behalf of the petitioners fairly stated that in view of the said finding it was not possible for him to assail the impugned decision so far as it related to the first ground.