Vaidya, J.
1. It is rather unfortunate that the above First Appeal arising from Civil Suit NO. 39 of 1953, cannot be disposed of, in the facts and circumstances of the case, so as to put an end to the litigation which was actually started in 1946 relating to the management of the Public Trust Known as 'Haji Malang Bawa Dargah' situated on a hill Talua Kalyan of Thane District.
2. This litigation started between the respondent Gopal Krishnaji Ketar on the one side and Mohammed Jaffar Mohomed Hussein and another on the other said in the course of which Ketkar claimed the sole right to manage the Dargah. It is the Dargah of a 13th Century legendary and renowned Arab Pir or saint. It is worshipped along with another tomb of a HIndu princess whom the said Pir is said to have treated as his daughter.
3. The litigation ended its first course with the judgment of the Supreme Court in Gopal Krishnaji Ketar v. Mahomed Jaffer : AIR1954SC5 .
4. The Supreme Court laid down in paragraph (31) of its judgment at page 8 as follows:---
'It is evident from the case of both sides that the Dargah is not private property. It was in existence some 700 years before the plaintiffs' ancestors came on the scene and a Muslim was in management in 1817. After this length of time and after what happened, and especially, as a Hindu princess was buried beside the Muslim saint, it might be legitimate to infer that there was some lawful origin, of which the traces are now lost, for management by a Hindu; and it may be fair and proper that whoever manages should be permitted to retain a portion of the offerings for him self. But it is quite evident that the property was not handed over to the plaintiffs' ancestors as a personal gift, nor of course would the Collector have had power to do that'
All he did was to settle a dispute and. with or without authority, to decide that Kashinath Pant had the right to manage; and that was all that Kashinath Pant claimed. Ever since, until the notice of 4-4-46, no adverse right even to the offerings, has ever been set up. Then comes the admitted fact that the public have taken an interest in the place and that a Dharamshala and so for were built by 'members of the public including a Parseee; also that the place is very largely visited, particularly during the Urdus time. This being so, we thin it undesirable that things should be allowed to drift in this uncertain way, no one knowing where the legal rights of management lie or of what they consist: no one knowing where the legal rights of management lie or of what they consist: no one knowing how the rights are to devolve or how the large charitable offerings which are collected are to be distributed and used.'
The Supreme Court has also referred to a statement made by the Solicitor General before them that a suit under Section 2 of the Code of Civil Procedure was under ' contemplation, and in view of the statement certain directions were given in the judgment regarding the collection and disposal of the offerings and it was also further stated-----
'If no such suit is instituted within the said six months, then the second plaintiff, as the person in 'de facto' management of the Dargah from 13-11-1938, the date of his adoption, till the date of suit, 7-10-1946 will be entitled to receive the offerings now lying in deposit in the Treasury for and on behalf of the Dargah and for its benefit and in future to collected all the offerings all the year round for and on behalf of the Dargah and for its benefit until he is displaced by a person with better title or authority derived from the Courts.'
The six months' period referred to therein was to commence from the date of the judgment of the Supreme Court which was Mav 22,1953.
5. During the tendency of the said suit and the consequent litigation which went up to the Supreme Court, the Bombay Public Trusts Act, 1950 was passed. It came into force on January 21, 1952. Ketkar made an application under that Act, under protest, for registering the Dargah as a Public Trust of which he was the sole trustee. The application was filed by him under protest as, according to him, the Dargah was not a public trust, to which the provisions of the Bombay Public Trusts Act, 1950 applied. IN the course of these proceedings there was a dispute relating to the land bearing Survey No. 134, and it was ultimately held by the High Court and the Supreme Court that the Trust was a Public Trust within the meaning of the Bombay Public Trusts Act. The judgment of the Supreme Court is reported in: Gopal Krishna v. Mohammed Haji Latif : [1968]3SCR862 .
6. The Charity Commissioner filed Civil Suit No. 39 of 1953, on November 16, 1953, as per the directions contained in the earlier judgment of the Supreme Court, in the Court of the District Judge of Thana, not under Section 92 which was repealed in the meanwhile but under Section 50 of the Bombay Public Trusts Act, as it stood before its later amendments at the time when the Charity Commissioner filed the suit. Section 52 of the Act without the later amendments read as follows:---
'52. Notwithstanding anything contained in the Code of Civil Procedure, 1908, the provisions of Sections 92 and 93 of the said Code shall not apply to the public trusts.'
The suit was, therefore, filed for framing a scheme for the management of the Trust and for other relieves which were incidental or consequential to the framing of the Scheme and the management of the public-trust under Section 50 of the Bombay Public Trusts Act, 1950 as it stood then. Under that section the Charity Commissioner or two of more persons having an interest in the trust and having obtained the consent in writing of the Charity commissioner in the manner provided by the Act could file a suit, inter ail, for the settlement of a Scheme or variations or alterations in a scheme already settled as stated in clause (g) of Section 50 as it stood then and which was altered to clause (j) when Section 50 was later on amended.
7. The suit had a protracted career before the Court of the District Judge from 1953 till February 3, 1970 on account of various interlocutory orders and proceedings and also in view of certain stay orders. On that day that is February 3, 1970, however, the Charity Commissioner filed his draft scheme which was recorded at Exhibit 620 with as many as 38 paragraphs. A Prussia was filed by the defendant Ketkar opposing the Scheme should have declared him to be the sole managing trustee of the Trust and he should have been further declared as the hereditary trustee having regard to the history of the management of the Dargah by his family.
8. The learned District Judge by his order, made on March 17, 1970, directed publishing of the Scheme and invited objections from persons interested in the Dargah. The Scheme was directed to be published on the Notice-Board of the Court; further a bailiff of the Court was deputed to go to the spot where Dargah was situated and to publish the scheme by bear of drum. All persons interested were required to appear before the learned District Judge on March 30, 1970 when the framing of the Scheme was to be considered.
9. On March 30, 1970 three interveners, viz., (1) Shri Ishak Baba Kadwaikar (2) Moula Miya Muhtyar Miya and (3) Fakir Mohammed Abdul Razak appeared through their Advocates. Mr. A. N. Maniyar appeared for intervenor No. (2) Moula Miya Muhtyar and intervenor No. (3) Fakir Mohammad Abdul Raza, and Mr. Udaipuri appeared for intervenor No. 1.
10. It must be noted here the paragraphs 6, 7A, 9 and 33 in the draft Scheme (Ex. 620) are the only paragraphs now in dispute and they were as follows:---
'6. Number of Trustees: The number of trustees shall be not less than five and not more than seven provided that one of the trustees shall always be the lineal major male descendant of the family of Shri G. K. Ketkar, and in the absence of such lineal major male descendant, any other major person from his family (male or female) as the Court may appoint.
7A. First Trustees: The following persons shall be the First Trustees of the said trust under the Scheme:
i. Shri Gopal Krishnaji Ketkar,
ii.
iii.
iv.
v.
X X X
9. The trustees except the hereditary trustee shall retire by rotation two at a time every third year beginning with 1st April 1971 (sic). The first two to retire will be trustees at S. Nos. 2, 3 and then 4 and 5 and so on.
Three months before such retirement, the remaining trustees shall move the Charity Commissioner for appointment of new trustees in place of the retiring trustees with due recommendations, if any. Thereupon, the Charity Commissioner shall make such appointments. The retiring trustee shall be eligible to be appointed. IN case of sudden or casual vacancies, the Charity Commissioner shall fill up such vacancy on recommendations, if any, from the trustees.
X X X
33. The hereditary trustee shall be entitled to be paid an amount of Rs. 250/- p. m. as remuneration from the trust amount for having the religious ceremonies of the Dargah performed according to custom and tradition.
The hereditary trustee shall not be entailed to offerings or donations either in cash or kind before the Dargah whether put in a sealed collection box or not.'
Thus in paragraph 6 of the Scheme defendant Ketkar was mentioned as entitled to be one of the trustees; paragraph 7A mentioned him, therefore, as trustee No. 1 leaving the other blank. The notice (Ex. 625) called upon the members of the public to put in their statement before the Court if they were interested in the Dargah, with respect to what was stated in Exhibit 620. All the intervenes filed objections to the continuance of defendant Ketkar as hereditary trustee as provided in paragraphs 6 and 33 of the draft scheme.
11. Immediately after these objections were filed, the learned District Judge adjourned the suit for hearing on the next day, and what happened on that day is rather very surprising. Replies of Ketkar to the objections raised by the intervenes were recorded. Suddenly a list of trustees was proposed by the defendant, which is at Exhibit 638. Thereafter, the learned District Judge recorded what appears to be the statements of Advocates appears to be the statements of Advocates appearing for the plaintiff, defendant and interfering for the plaintiff pendent intervenes Nos. 2 and 3. No such statement was recorded of the advocate for interferon No. 1 The statements are not signed by the Advocates.
12. The learned District Judge has merely stated in Exhibit 640 that the Advocate Mr. G. Dabke, for the Charity Commissioner, states as under:---
'(1) In view of the decisions by the Supreme Court in the litigation's going to it in this connection reported in : AIR1954SC5 , Gopal Krishna v. Mohamed and : [1968]3SCR862 , the controversy between the parties is now extremely limited. The Charity Commissioner does not want to contest the defendant's claim to be included as one of the Trustees in the scheme to be framed by this Court. IN view of the rights which have been declared by the Supreme Court in these litigation's, the Charity Commissioner also would not contest his claim to be appointed as a Managing Trustee, in the panel of Trustees to be appointed by this Court.
(2) So far as the other first Trustees are concerned, I have instructions to say that the Trustees should be as per the list submitted by me at Ex. 632. The list includes respectable persons of all communities and the Charity Commissioner would very much want this Court to have this list wholly accepted. The name of the defendant Gopal Krishna Ketkar should be included as a Managing trustee.'
13. As Exhibit 642 he recorded the statement of Mr. Oke, Advocate for the defendant, Gopal Krihna Ketkar, which sounds rather very objectionable as it purports to impose a condition on the Court. Although there was nothing in the judgment of the Supreme Court in : AIR1954SC5 , or in the later judgment in : [1968]3SCR862 to show that the Supreme Court considered Ketkar as the Managing Trustee or a hereditary trustee or a trustee who ought to be included in the board of trustees to be appointed under the Scheme of Management, the statement was as follows:---
'In view of what has been stated by Shri Dabke and in consequence of the previous litigations which are decided by the Supreme Court, this defendant agrees that most of the issue framed in this suit at Exhibit 131 do not survive for decision. If the defendant Ketkar is made a Managing Trustee in the panel of trustees to be finalised by this Court as per the scheme proposed by the Charity Commissioner, he would not press his contention that he should be made the sole Trustee.
(2) So far as the panel of Trustees proposed is concerned, the defendant would very much like the same to be properly reviewed by this Court so as to include reviewed by this Court so as to include Shri HOmi Rustomji, a Parsee Gentleman of some repute, and Shri Hamid Dalwai, a nationalist Muslim, in the panel of new Trustees. The defendant would not object of Prof. N. S. Gorear and Advocate Shir N. . Patil from the list of the Charity Commissioner as also Shri Mahamadmiya Akbarsaheb from this list to be included in the panel of Trustees. As regards the remuneration of this defendant Ketkar proposed by the Charity Commissioner in his scheme, he would like to pray that the remuneration should be fixed on the basis of percentage rather than a fixed sum of Rs. 250/=- per month. I would like to add that during the past several years the gorse income of the Trust was never more than Rupees 40,000/- per year and if remuneration is fixed at the rate of 7 1/2 per cent. on the gross income, my client would not get anything more than Rs. 250/- per month. I would insist upon the remuneration to be fixed on this percentage basis of 71/2 on the gross income I would also submit that liberty should be reserved to my client as also to the persons interested to apply for variation in the percentage of remuneration so fixed.
(3) As to the accounts referred to in issue No. 15 at Exhibit 131, the matter should be left to be examined by the Charity Commissioner for such period as the Court would deem fit. Liberty should also be reserved to my client Gopal Krishna to have his previous remuneration settled by the Charity Commissioner while settling these accounts. 31st March 1970.'
After this the learned District Judge recorded the statement of Mr. Maniyar on behalf of the interveners as of interveners Nos. (1) Shri Maulamiya Mukhtar Miyan and (2) Fakir Mohamed. It runs as under:---
'In view of what Shri Dabke and Shri Oe, Advocates, have stated above, my clients would not object to the framing of the Scheme and appointing a panel of Trustees which would include the defendant Gopal Ketkar as a managing trustee. They would not press their contentions in their objections at Exs. 629 and 631 respectively that the defendant Ketkar should have no connection whatsoever with the management of the Trust. So far as the panel of first Trustees is concerned, my clients would very much press for the inclusion of Shri Zari Advocate along with themselves. So far as the names aforesaid stated by Messrs. Dabke and Oke are concerned, my clients would not have any objection to the inclusion of Prof. N. S. Gorekar, Shri Nakul Kundalik Patil, Advocate, Shri Mahomedmiya Akbarsaheb, Shri Homi Rustumji Munshi and Shri Hamid Dalwai, I pray that Advocate Shri Zari should also be included along with them if possible. 31st March, 1970.'
14. Having recorded these statements, it is shocking to find that the learned District Judge proceeded straightway to pronounce his judgment on that very day and passed a decree accepting the scheme with modifications, substantially as required by the defendant Ketkar, thus under the decree paragraphs 6, 7-A, 9 and 33 read as follows:---
Number of Trustees:--- '6. The number of Trustees shall be not less than five and not more than seven provided that one of the trustees shall always be the lineal major male descendant of the family of Shri G. K. Ketkar and, in the absence of such lineal major male descendant any other major male descendant any other major person from his family (male or female) as the Court may appoint.
First Trustees:--- 7-A. The following persons shall be the first trustees of the said trust under the scheme:---
1. Shri Gopal Krishnaji Ketkar, landlord, residing at Wadi Bandhan Taluka Kalyan.
2. Shri Mohamed Gause Zari, Advocate Supreme Court, 8/8, Rehanabad, Spence Road, Byculla, Bombay No. 8.
3. Professor N. S. Gorekar, Bunder Road, alyan.
4. Shri Nakul Kundalik Patil, Advocate, of old Dombivali, District Thana.
5. Shri Mamudmiya Akbarsaheb Majid of Kalyan, Bazar Peeth, Kalyan District Thana.
6. Shri Homi Rustunji Munshi, Supervisor, Bank of India, Flora Fountain, Bombay No. 1.
7. Shri Hamid Dalwai, Nityanand Nagar, Vibhag 4, Building No. 4, Room No. 55, Government Housing Colony, Andheri, East.
* * * * * *
9. The Trustees except the Hereditary trustee shall retire by rotation two at a time every third year beginning with 1st April, 1973. The first two to retire will be trustees at S. Nos. 2, 3, and then 4 and 5 and so on.
* * * * * *
33. The hereditary managing trusted shall be entitled to be paid 7 1/2% on the gross income of the trust for his services to the Dargah or having the religious ceremonies of the Dargah performed according to custom and tradition. The hereditary trustee shall not be entitled to any offerings or donations either in cash or kind before the Dargah whether put in a sealed collection box or not. The hereditary trustee and his successor as also persons interested otherwise shall be entitled to apply to this Court for a Variation in the percentage depending on the circumstances then prevailing.'
15. Feeling aggrieved by the said judgment dated March 31, 1970, intervenor No. 3, Fakir Mohamed Abdul Razahas filed the above First Appeal, firstly, on the ground that his Advocate Mr. Maniyar had only stated that there would be no objection if Ketkar was appointed as one of the Trustees and that he did not use the words 'Managing Trustee', but the learned District Judge had, mis-heard or mis-understood the statement of Mr. Maniyar. Mr. Maniyar has appeared before us and made a statement at the Bar that he was agreeable to Ketkar continuing as a trustee, but he had never agreed to Ketkar being appointed as hereditary trustee or managing trustee, and the learned District Judge had wrongly recorded his statement.
16. secondly, it is urged in appeal by Mr. Parpa, the learned counsel appearing for the appellant that, in the absence of any provision in the draft Scheme, which was published or which was ultimately accepted by the court to appoint Mr. Ketkar as Managing Trustee; the appointment of Mr. Ketkar as Managing Trustee was inconsistent with the whole Scheme.
17. Thirdly, Mr.Parpia submitted that apart from his client supporting what Mr. Maniyar stated before us, the main objection of the interveners was to the appointment of Mr. Ketkar as a trustee as he had made claims prejudicial to the interests of the Trust from the year 1946. Ketkar had involved persons interested in the Dargah in a host of litigation which has been going on during the last three decades since then. It is, therefore, according to Mr. Parpia, impossible to believe that Mr. Maniyar Adv. would make a statement on behalf of the interveners Nos. 2 and 3 that he would accept paragraphs 6, 7-A, 9 and 33 of the Scheme as accepted by the learned District Judge.
18. The defendant Kekar has filed cross-objections in the above First Appeal contending that the learned District Judge erred in constituting a panel of trustees and that he should have been made the Sole hereditary trustee and manager of the Trust, particularly as it was in the interest of the Dargah that he should be appointed the Sole Trustee, having regard to the peculiar nature of the Trust, its history, duties of the trustee, the experience of the defendant and the services rendered by him for many years to the Trust.
19. Mr. Tipnis, the learned counsel for the defendant, urged three preliminary objections to the First Appeal, viz., (1) that the appellant being merely an interferon could not file an appeal to this Court under Section 96 of the Code of Civil Procedure, read with Section 76 of the Bombay Public Trusts Act, having regard to the well-settled principles of law that it is only a party to the suit who can file an appeal against the decree to the higher Court; (2) that the above First Appeal was not maintainable because the persons who were appointed Trustees, other than Ketar, were not party-respondents in the First Appeal; and(3) that the appeal was not comment because the decree passed by the learned District Judge of Thana was, in the facts and circumstances of the case a consent decree passed on the statements of counsel as recorded by the learned District Judge, Thana.
20. Turning, therefore, first to the preliminary objections, we find no substance in any of these objections raised on behalf of the defendant. We find nothing in Section 96 of the Code of Civil Procedure which is applicable to the proceedings under the Bombay Public Trusts Act in view of Section 76 of the Act which lays down that it is only a party to the suit who can file an appeal. The well-settled position in law appears to be that normally any party to the suit adversely affected by the decree or a transferee of the interest of such party, or even an auction purchaser may appeal. (See Sir Dint Mulla's Code of Civil Procedure, Thirteenth Edition at page 421.)
21. Reliance was, however, placed by Mr. Tipnis on the judgment of Chandrachud, J., (as he then was) in Civil Revn. Appln. No. 210 of 1969, decided on 3/5-3-1969 (Bom) where the present appellant's revision application against the order dismissing the application made on October 15, 1968, at Exhibit 580 stating that he Trust, and therefore, he should be imploded to the suit either as plaintiff or as defendant, was rejected. That was an order on an interlocutory application. Normally the Court does not permit outsiders to join as a party. That order refusing to join the interferon as a party cannot help the defendant in contending that even if he appeared before the lower Court in response to a public notice Calling upon the members of the public interested in the Dargah to file objections and make statements, before the Court and filed an objection petition to certain portions of the Scheme he could not file an appeal when he was aggrieved by the order of District Court.
22. Reference was also made by Tipnis to the decision of Chagla, C. J. and Bhagwati, J. (as he then was) in Province of Bombay v. Western India Automobile Association. 51 Bom LR 58 : AIR 1949 Bom 141. But that was a matter from the original side, and the appeal was under Clause 15 of the Letters patent. Moreover, that decision does not help the respondent. All that is laid down in that decision is that ordinarily only a party to the suit has a right of appeal; and a person not a party to the suit but who is affected by the order passed in the suit has no right to appeal. but the Court of Appeal may in its discretion allow him to prefer an appeal.
23. The interferon filed the above appeal and the appeal has been admitted. If at all it is further necessary that leave be granted, we would hold that for the ends of justice and having regard to the nature of the suit, we would grant the leave to the appellant to file the appeal as he claims to be a devotee or a person interested in the proper management of the Haji Malan Dargah, and he has submitted before the lower Court and it is submitted even before us that he opposes the appointment of the defendant Ketkar as one of the Trustees as Ketkar has been acting in manner prejudicial to the best interests of the Trust from 1946 till now. The first preliminary objection is, therefore, overruled.
24. So far as the second objection is concerned, it was conceded by both the parties before us that when the above appeal was admitted by this Court on July 8, 1971, the Trustees appointed under the Scheme as framed by the lower Court had ceased to be in the management or possession of the Dargah on account of certain other litigation's which are pending. The Trustees had thus not applied in the lower Court to be made parties or interveners in the litigation. The appellants interveners could not have asked the Court to join them as parties in the suit for framing the scheme and for other reliefs which were asked for in the suit. Though their names were suggested by the parties before the learned District Judge, none of them, had made any application to the lower Court for being added as parties.
25. We must, therefore, hold that the contention made on behalf of the respondent that the appeal was not competent because the interferon-appellant had not joined the trustees appointed under the Scheme, is untenable as they were not parties to the litigation in the lower Court and did not apply to be made parties. Further this Court is bound to take notice of subsequent events and circumstances in which they have undisputedly ceased to be in possession and management of the suit Dargah.
26. So far as the third preliminary objection is concerned Mr. Tipnis forgets that the decree cannot be called a consent decree because there is nothing on record to show that any of the parties had agreed to any consent decree. The parties and their Advocates have not signed any consent terms. The statements which the learned Judge is shown to have recorded on March 31, 1970, are only the statements of Advocates for the prates, the advocate for interveners Nos. 2 and 3, Mr. Maniyar, and the Advocate for the defendant. There is nothing in the said statements, which are quoted above, to show that every one of the Advocates had agreed to what the other Advocates had stated especially with regard to the acceptance of the disputed provisions of the Scheme relating to the appointment of the defendant as the Managing Trustee.
27. Apart from the fact that Mr. Maniyar made a statement before us at the Bar that he did not make a statement agreeing to the appointment of the defendant as the Managing Trustee and the statement as recorded by the learned District Judge does not reflect what he actually stated before the learned District Judge, it is patent that the learned District Judge did not care to record any statements on behalf of the first intervenor Ishak Babamiya Kadwaikar. He had also filed an objection petition. He was represented by another Advocate. His objection petition is at Exhibit 634. There is nothing in the RozName maintained by the lower Court to show that his advocate was absent when these statements were supposed to have been made by the Advocates for the parties and interveners NOs. 2 and 3. The judgment of the learned District Judge does not show why he ignored the interferon lsha Baba adwaikar Paniwala and his Advocate Mr. Udipuri.
28. Besides, we are surprised that it is contended on behalf of the defendant that it was a consent decree, though the consent that was given by the defendant himself was a conditional consent imposing a sort of a condition on the Court that if the defendant Ketkar was made a Managing Trustee, in the panel of Trustees to be finalised by the Court, as per the Scheme proposed by the Charity Commissioner, he would not press his contention that he should be made the sole trustee. As already stated above, the defendant himself has filed cross-objections in the First Appeal contending that the decree passed by the learned District Judge was wrong because he alone should have been appointed as Sole Trustee. In view of these facts and circumstances of the case, we find that there is nothing on the record to show that there was anything which was agreed to by all the parties to the litigation, in the same sense which could be described as consent which alone could be the basis of a consent decree.
29. The preliminary objections raised on behalf of the respondent must, therefore, fail.
30. So far as the merits of the First Appeal and the Cross-objection are concerned, we find it necessary to set aside the judgment and decree passed by the learned District Judge in so far as he modified the Scheme proposed by the Charity Commissioner regarding paragraphs 6, 7-A, 9 and 33 as the learned District Judge has followed what appears to be an unprecedented and extraordinary procedure of hearing a suit, pending for 17 years, one day after the objection petitions had been filed on the basis of what the learned District Judge has recorded as statements of Advocates for the parties and two of the intervenes, ignoring the other interferon and his advocate.
31. We do not thin that such a procedure is either consistent with the principles of natural justice, which should be uppermost in the mind of any judge hearing a matter even assuming that there is no particular procedure prescribed by law, and also the provisions of the Code of Civil Procedure, which, as already stated, are made applicable by Section 76 of the Bombay Public Trusts Act. Section 76 runs as follows:---
'76 Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act.'
On the pleadings, the Charity Commissioner and the intervenes were at issue with the defendant as the defendant wanted to be the Sole Trustee. The Charity Commissioner wanted him to be one of the Trustees and not the Managing Trustee or hereditary trustee; and the interveners did not want him to be a trustee. at all, the normal procedure which ought to have been followed by the learned District Judge in view of these pleadings was first to order examination of the parties under Order X of the Code of Civil Procedure.
32. If he wanted to rely on what he regarded as statements of Advocates he ought to have taken the signatures of the Advocates, if not the signatures of the parties, and intervenes themselves. Issue should have been thereafter determined under Order XIV of the Code of Civil Procedure with regard to the rival contentions of the Charity Commissioner, the defendant and the interveners. Parties were at issue before the learned District Judge with regard to the proposed contents of paragraphs 6, 7-A, and 33 of the Scheme. Having regard to this position, we find it rather shocking that the learned District Judge instead of giving a fair opportunity to the parties and interveners to lead evidence in support of their pleadings and contentions fixed the hearing of the matter on the very next day.
33. Under Order XV, Rule 3 of the Code of Civil Procedure where the parties are at issue on some questions of law or of fact, and issues have been framed by the Court as herein before stated, if the Court is satisfied that no further argument or evidence than what the parties can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine such issues, and, if the finding thereon s sufficient for the decision, may pronounce judgment accordingly, irrespective of whether the summons has been issued for the settlement of issues only or for the venal disposal of the suit. Order 15, Rule 3 (2) further lays down that where the finding is not sufficient for the division, the Court shall postpone the further hearing of the suit, and shall fix a day for the production of such further evidence, or for such further argument as the case requires.
34. We find it shooing that there is no entry in the Roznama to show that any of the parties stated that there was no evidence to be led. There is nothing in the judgment of the learned District Judge to explain as to why he did not follow the normal procedure of giving time to the parties to lead evidence, except placing his reliance on the so-called statements of their Advocates one of which is wholly challenged before us by Mr. Maniyar. There is nothing in the record to show that the learned District Judge applied his mind to the credentials of the persons who have been actually appointed as the first trustees under paragraph 7-A of the Scheme. Having rightly stated in paragraph 23 of his judgment that the paramount considerations for settling a Scheme of this nature and appointing new trustees, which have to weigh with the Court, are the interest and welfare of the Trust in question, the learned District Judge completely ignored the welfare the interest of the Trust by not placing anything on the record to show that the appointment of these persons as trustees was in the welfare and interest of the Trust.
35. It is well settled that in suits like the suits for settling the Scheme, the Court has a duty once it is found that it is a Trust for public purposes, to consider what is best in the interests of public. Settling a scheme is one of the most important relieves relating to the administration of public trust. The primary duty of the Court is to consider the interest of the public for whose benefit the trust has been created. It has large powers to frame suitable schemes in cases where trust has been created. It has large powers to frame suitable schemes in cases where trust property has been diverted from its proper purposes, and the objects of the trusts are not being carried out and the persons in management are not properly accounting for the realisation from the trust property or otherwise misconducting themselves. Further in settling a scheme for the administration of a charitable trust involving the appointment of trustees or managers, the Court is bound to secure persons whom it regards as suitable. A Court cannot abandon its duties lightly relying on mere statements of Advocates without placing any material on record to show who is who an what is what as was done by the learned District Judge in the present case.
36. We find nothing on the record to show as to what are the credentials of the trustees, other than two of the Trustees who are Advocates and one who is a Professor, as to what they are doing in actual life, as to whether they deserve to be appointed as trustees of such a well known, historic and renowned trust like Haji Malang Trust. It is true that none of the parties appear to have placed any material on record to show what those persons were. The Court should have asked those persons who were considered fit as to whether they were willing to act as trustees knowing what their responsibilities would be. Appointing trustees is not like appointing sub-committees in associating dealing sub-commits in association dealing generally with public affairs. The Court is called upon to appoint such trustees men who can apply their mind to the management of the Trust and to find out whether those persons have got necessary physical and intellectual capacity and social standing which would justify their appointment as trustees of the public trust. We find nothing on record to indicate that the learned District Judge applied his mind to this aspect of the case when appointing the first trustees of the trust with respect to which there has been this protracted litigation right from the year 1946.
37. The Court has further to consider in settling the Scheme the past history of the institution and the way in which the management of the trust has been carried on till the settlement of the scheme and the appointment of the trustee. The Court has also to find out whether the persons who are interested, and particularly the devotees of the religious institutions like a Dargah, are satisfied with the new scheme of management which the Court proposes. There is nothing in the judgment of the learned District Judge to indicate that he had applied his mind even to this aspect of the matter. There are serious allegations made by the intervenes against the defendant which are required to be considered by the learned District Judge on the basis of evidence which they should have been called upon to produce.
38. It is admitted that there is another suit filed by the Charity Commissioner with regard to the amendment of the Scheme settled by the learned District Judge during the tendency of this appeal. It was not open to the learned District Judge to close his eyes to all the allegations and to shut out further inquiry into the matter and pass an order accepting the Scheme as suggested by the Defendant's Advocate reeling merely on the consent of the Charity Commissioner's Advocate when there was nothing on record to show that the Charity Commissioner himself had signed statement agreeing to the appointment of the defendant as a Managing Trustee.
39. It is true that the learned Charity Commissioner has not filed any appeal against the decree. It is not said before us that although Mr. C. K. Dabke, the learned counsel appearing for the Charity Commissioner had made a statement which the learned District Judge has recorded, he had no instructions from the Charity Commissioner to concede that the defendant may be appointed as the Managing Trustee. But it was the duty of the Court to ascertain what was the duty of the Court to ascertain what was in the best interests of the Trusts in the facts and circumstances of the case particularly having regard to the fact that Haji Malang Dargah was visited every wee by thousands of people belonging to all communities. It was necessary to make sure that the trustees appointed will make proper arrangements for the management of the trust and for the proper utilisation of the offerings of the missions of devotees visiting the Dargah.
40. In Mahomed Ismail Arief v. Ahmed Moolla Dawood 43 Ind App 127 : AIR 1961 PC 132, the Privy Council laid down the principle that the Court has complete discretion in settling a scheme of management; it may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but its primary duty is to consider the interests of the general body of the public for whose benefit the trust was created, it may vary any rule of management which it finds either not practicable or not in the best interest of the institution. Mr. Ameer Ali J. who delivered the judgment observed at page 136 as follows:---
'The present case, however, in their Lordships' opinion, illustrates the mischief of leaving the power of appointing or electing trustees in the hands of an indeterminate and necessarily fluctuating body of people, whether they call themselves Punchayat or Jamat. In order to avoid so far as possible a recurrence of the trouble that has brought about this long-drawn litigation, their Lordships thin it desirable, in the interests of the institution which form the primary matter for consideration, that the appointee for consideration, that the appointment of future trustees should be entrusted to a committee of the worshippers the composition of which should be in the discretion of the judge, with due regard to local conditions and needs, subject to the provision that, so long as circumstances do not vary, a majority of such commit should be Randherias, and that in settling the scheme the Judge should letdown rules for their guidance in the discharge of any Supervision functions that may appear necessary to confide to them and for filling up vacancies on their body subject to his control.'
This principles were followed by the Privy Council in Ram Duller v. Ram Lal, .
41. We find that so far as the present suit is concerned, the learned District Judge has not at all considered the interest of the worshippers. At least three of them were before him. It was his duty to as Mr. Udaipuri as to what he had to state about the matter. The learned District Judge should not have proceeded to pronounce the judgment without recording his statement or Prussia that he had nothing to say.
42. There is nothing on record to show that the parties were given any opportunity to lead evidence with regard to the disputed paragraphs 6, 7-A, and 33 in the Scheme proposed by the Charity Commissioner at Exhibit 620. There is also nothing on the record to show that the learned District Judge had given any notice to the members of the public with regard to the amendments in the Scheme which had far-reaching effect as they proposed to make the defendant a managing hereditary trustee though he was in the first instance claiming that the trust was not a public trust; in the second instance that he was the sole trustee; and in the third instance that one of the lands belonging to the Trust was his private property.
43. Mr. Paprika, although he is appearing for the interferon, has drawn our attention to the prayer in the plaint in which the Charity Commissioner asked for an order against the defendant Ketkar to render accounts of all the properties and the offerings and other income come to his hands for the period of his de facto management of this public Trust. As the Charity Commissioner has not filed any appeal against the decree, we cannot allow the interferon who only came in to object to the Scheme to challenge the decree on the ground that the learned District Judge has not passed any order with respect to the relief which Ws claimed by the Charity Commissioner.
44. However, the learned District Judge ought to have considered the objections raised by the intervenes in the course of which several allegations with regard to the manner of keeping accounts and the conduct of the defendant Ketkar, were made. Even if we were to ignore the objection petitions of the interveners for when Mr. Maniyar Advocate appeared, there were objections filed on behalf of lsha Baba at Exhibit 634.
45. lsha Baba Kadwaikar is a permanent resident of Survey No. 134, Haji Malang Dargah. He was doing business of supplying well water to businessmen and residents of the Haji Malang Dargah. He has also made arrangements for hot and cold water baths for pilgrims visiting the Dargah. He too had made several allegations against the High handed conduct of the defendant Ketkar.
46. Although his occupation of Supplying water at Haji Malang Dargah, which is situated at a height, sounds humble, he describes himself as a man with a name and fame who had sometimes with his a cash of Rs. 60,000/-. He had four employees with him and he claimed to have installed an electric meter at his own cost and expenses at the heights of Haji Malang Dargah. He has submitted that the defendant Ketkar has created terror, fear and intimidation in the minds of residents at Haji Malag Dargah, and he has given his own narrative of his own experience in the course of his petition with regard to the manner in which the defendant Ketkar asked him to go away and to hand over his well from which he was taking out water to one Smt. Akhtari Begum Jani Miyan. He further stated in the petition that the defendant Ketkar had deprived him of his well, dismantled his home at Survey NO. 134, destroyed his hams, and has brought his ruin and downfall. He had no means of earning his bread and butter and he was compelled to earn his livelihood by begging and staying under a tree at Haji Malang Dargah. All these are allegations made against the defendant with a view to prevent the defendant being appointed as Managing Trustees or a trustee. The learned District Judge has not recorded a single sentence to show why we has ignored them.
47. MOreover, even the objections made by the other interveners had to be taken into consideration by the learned District Judge because they were the only intervenes who had come in response to the public notice. The appellants had submitted objection to the appointment of the defendant contending that the defendant should not be appointed in the interests of the public trust. The learned District Judge appears to have ignored them. He too into consideration only what he described as the statement made by Advocate Mr. Maniyar before him which Mr. Maniyar and his clients disown before us.
48. We would like to observe that the Court of justice must follow the procedure prescribed by law. They should not adopt a procedure like the one which was adopted by the learned District Judge in the president case of deciding the matter on the basis statement of three of the Advocates appearing before the Court in consuetude and protracted litigation like the present one. These statements were not signed by the parties or their advocates. I do not think the public expects Courts to justice to decide the disputes between the parties to the litigation merely on statements of Advocates particularly in a case like the present one where the suit was pending from 1953. It is difficult to understand why the learned District Judge immediately after the objections were filed thought it necessary to adjourn the case only for one day to dispose of the matter in this extraordinary manner.
49. In these circumstances, not withstanding all the persuasive submission made by Mr, Parpia, the learned counsel for the appellant before us that this court should put an end to this litigation by setting the Scheme here and now, having regard to the protracted litigation for over nearly three decades, we find it absolutely necessary for the ends of justice to remit the suit for a proper trial of the issues between the defendant, the Charity Commissioner and the interveners regarding the framing of paragraphs 6, 7-A, 9 and 33 only, as the rest of the Scheme proposed by the Charity Commissioner at Ext. 620 was not opposed by any of the parties or by the interveners before the learned District Judge or before us.
50. We find that the rest of the provisions of the Scheme are in the best interests and proper management of the trust. We do not find it necessary to set aside the decree as a whole. But the decree, in so far as it modifies the proposed Scheme At Exhibit 620 with regard to paragraphs Nos. 6, 7-A, 9 and 33, must be set aside and the suit must be remanded to the Court of the learned District Judge, Thana for a proper trial of the suit after framing necessary issues and giving opportunity to the parties and the interveners to lead such evidence as they can produce before the Curt in accordance with law and in the light of the observation which we have made herein above.
51. But, whatever we have observed herein above shall not prejudice the rights and remedies of the contentions which are open to the parties the intervenes and particularly the statuary powers, rights and remedies which are conferred on the Charity Commissioner or the State Government or other Authorities under the provision of the Bombay public trusts Act as amended from time to time.
52. In the result, the above First Appeal and the Cross - objection are parlay allowed by setting aside the decree dated March 31, 1970, passed by the learned District Judge in so far as paragraphs 6, 7-A, 9 and 33 of the Scheme mentioned in the decree are concerned, while confirming all other paragraphs of the said Scheme and the Decree in so far as it is based on the said remaining paragraphs, subject to what is stated herein above.
53. The suit is remitted to the Court of the District Judge for proper trial in accordance wig law and in the light of the observations herein above regarding the framing and settling of the Scheme only in so far as paragraphs 6, 7 -A, 9 and 33 are concerned.
54. As the suit has been pending from 1953, the suit shall be heard and proceeded with as expeditiously as possible after giving fair opportunities to the parties and the intervenes to lea their evidence, if any, with regard to the settling of the disputed paragraphs of the Scheme in accordance with law, either before the District Judge or any other Judge who is empowered to hear the suit. The parties and the intervenes are at liberty to make such applications to the trial Court for amendment of the Scheme or for such other relieves as are available to them under law.
55. Nothing herein shall affect the powers of the Charity Commissioner, the State Government or of any other authority to act, in accordance with law, under the amendments of the Bombay Public Trusts Act, which were made during the tendency of the suit.
56. The part of the decree directing the Receiver to hand over charge and to submit accounts does not survive as the Receiver had handed over charge and submitted accounts as per the said decree and no order can be now made setting it aside.
57. The decree in so far as it directed costs is set aside and costs shall abide the ultimate result of the suit.
58. The decree is modified as stated above and the suit is remanded for trial regarding the framing or settling of paragraph 6, 7-A, 9 and 33. The decree in respect of the remaining paragraphs of the Scheme is confirmed.
59. Cost in the appeal and the costs in the suit shall be costs in the suit.
60. Order accordingly.