MOHAMAD HAIDAR MUJAWAR Vs. JAMAL HAIDAR MUJAWAR

JUDGEMENT

(1.) FIRST Appeal No. 56 of 1967 arises out of an order made by the learned District Judge at Kolhapur setting aside the order made by the Joint Charity Commissioner in a revisional application. The genesis of this dispute may be very shortly stated. In Kolhapur city there is a Darga of one Hajrat Pir Babu Jamal. There are two families interested in this Darga, one is the family of Mutawallis and the other of Mujawars. The appellant and respondent No. 1 are the sons of one Haidar Babaji, who died in 1926. He was the Mujawar and had eight annas share in the emoluments. He made a will by which he directed his sons i. e the appellant and respondent No. 1 to do the management of their shares by turns in certain manner. Respondent No. 1 is the elder son and the appellant is the younger son of the said Haidar. After the death of Haidar, the management was done in accordance with the terms of the Will. In fact, the appellant managed the entire property of the Darga and sent respondent No. 1, who was staying outside, moneys from time to time pertaining to his share. It is alleged that according tot the custom of the management of this Darga the managers appropriate what remains after the legitimate expenses of the Darga are met, as their share for the service. In 1950 respondent No. 1 came back to Kolhapur and started record of rights proceedings for change in the entries. Until then the property stood in the names of the appellant and respondent No. 1. By these proceedings he sought to have property transferred to his name alone. Fortune favoured him and he succeeded in getting a final order from the Government in his favour. This order was made by the Government on February 18, 1954. Applications were also made to the Charity Commissioner in 1952 under Section 19 of the Act both by the appellant and respondent No. 1 in respect of eight annas share. The Assistant Charity Commissioner by his order February 18, 1954 entered the name of respondent No. 1 as the manager. The appellant instituted a suit in the Court of the Civil Judge, Senior Division, Kolhapur, on August 19, 1955 for a declaration that he was a sharer in the management of the Darga and that he was entitled to four annas share out of the income. , The appellant failed in that suit. Against the judgment of the learned trial Judge, he filed an appeal (First Appeal No. 804 of 1957) in this Court. This appeal came up for hearing before Shah J. and myself on April 11, 1963. We heard the arguments for a considerable time both on the point of law involved and on merits. Mr. Bhasme, for the appellant, then applied that he should be allowed to amend the plaint contending that according to the custom prevailing in respect of this Darga the Mujawarship was divisible and the Mujawars were entitled to appropriate the balance remaining out of the income after the expenses of the Darga were met. After hearing Mr. Shrikhande, for respondent No. 1, we allowed the amendment and remitted the matter to the trial Court for determining afresh issues arising out of the amendment. After remand, the learned Judge submitted his findings. The matter then again came before myself and Abhyankar J. At that stage, it was found that there would be difficulty in the way of Mr. Bhasme by reason of the decision of the Assistant Charity Commissioner. The matter was, therefore, adjourned to enable Mr. Bhasme to make an application to the Charity Commissioner under Section 70-A of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act ).

(2.) ACCORDINGLY, an application was made on behalf of the appellant to the Charity Commissioner in revision under Section 70-A of the Act. In that application the appellant stated all that had happened so far and further said that large volume of evidence was led after the remand before the learned trial Judge and that that evidence if received in this matter would make a lot of difference to the ultimate decision about the rights of the appellant in the Mujawarship. The learned Joint Charity Commissioner, who heard the matter, after being satisfied that it was a case for his interference, set aside the order made by the Assistant Charity Commissioner and remitted the matter for a fresh inquiry only in respect of the issue about the appellant's right to a share in the Mujawarship.

(3.) RESPONDENT No. 1 filed an application to the District Court under Section 72 of the Act, which was heard by the learned District Judge. The learned Judge took the view that the powers under Section 70-A of the Act are very limited. They are akin to those under Section 115, Civil P. C. exercised by the High Court in respect of decisions of the Courts subordinate to it and that the Joint Charity Commissioner could not have remitted the matter for further inquiry and also because there was delay in making of the application under Section 70-A of the Act. He, therefore, set aside the order of the Joint Charity Commissioner and dismissed the application. The appellant comes to this Court by First Appeal No. 56 of 1967.