Maliwada Mandal Devasthan and Dharma Fund vs Pandharinath Honaji Raskar

Sharad Manohar, J.—It is impossible to find anything wrong about the concurrent view taken by both the Courts below, viz. that the proper person to look after the management of the Trust should be an elected body instead of a person getting that right by the principle of succession.

The Trust in question is Maliwada Mandal Devasthan and Dharma Fund, at Ahmednagar. It is a public trust registered under the Bombay Public Trusts, Act. The trustees of the Trust made an application to the Deputy Charity Commissioner u/s 50-A of the Public Trusts Act for the framing of a scheme for the purpose of the management of the Trust. After hearing the trustees and all other persons interested in the Trust and particularly original opponent Nos. 1 to 3, the Deputy Charity Commissioner did frame a scheme. By the Scheme, the original method of appointment of trustees by succession was abandoned and provision was made for recruitment of the trustees by election by the members of the Mali Community. In the Public Notices that were issued by the Deputy Charity Commissioner, some persons of the Matang Community also made a representation before the Deputy Charity Commissioner that on the Board of Trustees two members of the Matang Community should also be allowed to be elected. The Deputy Charity Commissioner found favour even with this demand of the members of the Matang Community and hence it was provided by the Scheme framed by the Deputy Charity Commissioner that two trustees would be elected by the Matang Community and that 2% of the profit of the Trust would be utilised or the upliftment of the Matang Community.

Against this order, an application was made by the original trustees to the District Court u/s 72 of the Bombay Public Trusts Act (hereafter, the Act).

It was urged before the learned District Judge by the appellants that the method of recruitment of trustees by election was an undesirable method and that the recruitment by succession was an ideal method. Grievance was also made about the inducting of the two trustees from the Matang Community and earmarking of 2% of the profit of the Trust for the upliftment of the Matang Community.

The learned District Judge has negatived the appellants'' contention as regards recruitment by succession. He has, however, accepted the appellants'' plea as regards the place being given to the members of the Matang Community on the Board of Trustees and as regards reservation of the Trust Fund for that community.

It is against this order that the present appeal is filed by the original trustees.

Before the admission of the appeal, the name of Original Opponent No. 2 (Respondent No. 2) viz. the representative of the Matang Community, was deleted from the array of parties. A submission was made before this Court at the time of the admission of the appeal that in the absence of the representatives of the Matang Community in this Court and in the context of the fact that they would not be heard at the time of hearing of the appeal, the appeal had become infructuous.

The learned Judge who admitted the appeal has kept this preliminary question open for the argument at the time of the final hearing of the appeal.

But I am not sure that the preliminary objection can be upheld. In this case, the representatives of the Matang Community have been denied any kind of right in the management of the Trust. The decision of the District Court in this behalf is categorically against the relevant contention and claim of the Matang Community. But, all the same, no appeal has been filed by any of the representatives of the Matang Community against the order of the District Court. The present appeal, therefore, seeks no relief whatsoever against the members of the Matang Community because whatever relief they wanted has already been given to them by the District Court. If the representatives of the Matang Community were aggrieved by that part of the order passed by the District Court, they should have filed an appeal to this Court against the same. Evidently, as the lower Court''s judgment stands, no right is left to any of the members of the Matang Community vis-a-vis this Trust. It is, therefore, possible to contend that there was no necessity for the appellant, whatsoever, to implead the representatives of the Matang Community as parties in this appeal. However, the question is of academic importance, because I am inclined to negative the appellants'' claim on merits.

The quintessence of the appellants'' contention is that there is something sacrosanct about succession as a method of recruitment of the trustees of the Trust. The learned District Judge has given very good reasons for negativing this contention. After all, we are now living in a democratic age and succession as to method of recruitment for public offices is looked down upon with disdain by the accepted norms of democracy. We have accepted the democratic system for the governance of the country as a whole and it should follow that if the democracy is to be successful, it has got to percolate to its substratum formed by not only the individuals, but also by the various public institutions.

There may be cases when a particular public trust may still be governed by the Rules of Succession as a method of recruitment of the trustees. This will be particularly so when a particular person donates large funds to a Trust, makes it a public trust and lays down succession as a mode of recruitment of the Board of Trustees. Probably, in such circumstances, the Charity Commissioner will respect this desire of the original settlor and will continue this mode of recruitment even while framing of the scheme. But no such circumstance has been brought to my notice. All that the Deputy Charity Commissioner was required to do was to devise a method of recruitment of trustees and he had to hit upon the best one that was known to him. Naturally, the. democratic method was the one which commended itself to him and even the District Court has approved of that democratic method. I see scant reason to find any fault with the concurrent view taken by both the Courts below.

Mr. Hon, appearing for the appellant, argues that no reasons were given by the Deputy Charity Commissioner for preferring the method of election to the method of succession.

To my mind, this objection is meaningless. I fail to see what particular reasons are necessary to be given for any such preference. The mode that is preferred is so manifestly correct that it calls for no separate justification as such. Moreover, the District Court has discussed this entire question and has given very good reasons for accepting the mode suggested by the Deputy Commissioner and, as stated above, I am in full agreement with the learned District Judge in this behalf.

It was nextly contended by Mr. Hon that the view taken by the Deputy Charity Commissioner and confirmed by the District Court militated against the provisions of Section 50-A of the Act, in that the Deputy Charity Commissioner has transgressed his power in suggesting a mode of representation in complete deviation from the modes suggested by the applicant/trustees in their application for framing of the scheme. Mr. Hon argued that when a scheme is suggested by the applicant u/s 50-A of the Act, it may be open for the- Charity Commissioner to make changes here and there in the suggested scheme. But, according to the learned advocate, it was not open for the Deputy Charity Commissioner to make a completely different scheme by making sharp departure from the scheme suggested by the original applicant.

Here again, I find next to no justification for such contention. I can see no scope for the argument in the letter and spirit of said Section 50-A that whatever is the scheme suggested by the applicants has got to be adhered to by the Charity Commissioner. In fact the section empowers the Charity Commissioner to frame a scheme even suo motu. That apart, when a scheme is suggested by the applicants, the power of the Charity Commissioner is not restricted to the framing of the self-same scheme. All that the Charity Commissioner is required to see is the interest of the Public Trust and of the beneficiaries of the Trust. These are not matters of pleadings so that the Court is precluded from giving to the parties a relief which has not been asked for in the plaint. An application for making of a scheme is not a plaint and the affidavits filed by the Opponents suggesting different methods are not the Written Statements or set-offs or counter-claims. There is nothing in Section 50-A of the Public Trusts Act which precludes the Court from devising its own scheme as per the dictates of good conscience.

Mr. Hon relied upon the judgment of the Madras High Court in S. Veeraraghava Achariar v. V. Parthasarathy lyenger [1925] AIR Mad. 1070 to contend that the method of election to such office meant for dedicated service is incompatible with its purpose.

I do not see any such ratio being laid down by the said authority. On the: other hand, as pointed out by Mrs. Agarwal appearing for respondent No. 3, the judgment in question goes a long way to support the view that election is a preferable method of recruitment of trustees. No doubt the Court has decried the habit of the people concerned to look upon trusteeship of the temples and similar institutions as places of prestige and profit. But while saying so, the Court has not decried or denounced election as method of recruitment of the trustees. This is what the Madras High Court has observed in this connection at page 1077 of its judgment:�

The true spirit in which such offices should be accepted or retained is the spirit of service and sacrifice in the interests of the public and of the institutions. So long as such offices are regarded not as posts of duty and responsibility but as opportunities of personal aggrandizement ,the affairs of such institutions are bound to be unsatisfactory. In this view no doubt, schemes under which there should be candidates for trusteeship and elections to such offices are largely incompatible with the true spirit that should prevail'' but it is the dream of democracy that there may be candidates who are pressed by public opinion to accept office if elected and that there may also be elections which truly reflect the highest principles of election.

It will be, thus, seen that far from supporting the argument advanced by Mr. Hon, the observations made and the view taken by the Madras High Court strongly favours election as method of recruitment of the trustees.

To my mind, if at all there was any fault in the judgment of the lower Court, it relates to its view that there was no justification for giving representations to the Matang Community. However, the view has to be taken by the learned Judge and no appeal has been filed against the same by any of the parties. In this view of the matter, it is unnecessary for me to do anything further m-the matter.

To my mind, there is no merit in the appeal and hence, the same is hereby dismissed with costs.