YASINMIAN AMIRMIAN FAROQUI Vs. I A SHAIKH

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment and order recorded by the learned single Judge in First Appeal No. 200 of 1972.

(2.) The facts of the case briefly stated are as under: In Civil Suit No. 54 of 1910 filed under sec. 92 of the Code of Civil Procedure a scheme was settled for the administration of the public trust in question Sunni Muslim Wakf Committee was constituted under it and consisted of five members (hereinafter referred to as the trusteeS). The original applicant filed Civil Miscellaneous Application No. 244 of 1970 in the City Civil Court at Ahmedabad in which he prayed that original opponents Nos. I and 2 be removed by the Court as trustees because they did not administer the trust and discharge their duties properly as they suffered from physical and mental incapacity. The original application was filed in the Trial Court without obtaining the consent of the Charity Commissioner in writing as required by sec. 50 of the Bombay Public Trusts Act because according to the original applicant he had a right to do so under Clauses 2 and 3 of the Scheme of the trust in question which provided for appointment and removal of the trustees.

(3.) The original opponents Nos. 1 and 2 inter alia contended in defence that the original application was not maintainable because sec. 50 of the Bombay Public Trusts Act 1950 superseded Clauses 1 and 3 of the Scheme in question and that the only remedy which the original applicant had was to institute a suit after complying with the provisions of sec. 50 of the Bombay Public Trusts Act 1950