Bombay High Court
Ms. Khursheed Sorabjee Through Her Ca ... vs Mr. Minoo Sorabjee Mehta And Ors on 28 February, 2025
2025:BHC-AS:9609
fa418-2014f
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.418 OF 2014
Ms. Khursheed Sorabjee ]
Through her CA Nausher Sorabjee ]
Aged about 68, Indian Inhabitant, ]
Plot No.650 Karani Building, ]
Firdoshi Road, Parsi Colony, ]
Dadar, Mumbai - 400 014 ] ... Appellant.
Versus
1. Mr. Minoo Sorabjee Mehta ]
Aged about__, Indian Inhabitant, ]
780, Karani Mansion, ]
Jame Jamshedji Road, ]
Dadar, Mumbai - 400 014 ]
2. Joint Charity Commissioner ]
Greater Bombay Region, ]
Mumbai ]
3. Charity Commissioner ]
Maharashtra State, Mumbai ] ... Respondents.
----------
Mr. Nitin S. Dhumal, Advocate for the Appellant.
Mr. Nigel Quraishy a/w. Mr.Snehil Rai i/by Mr.Mangesh D. Chavan and
Ms. Prashansa Jain, Advocates for Respondent No.1.
----------
Coram : Sharmila U. Deshmukh, J.
Reserved on : January 27, 2025
Pronounced on : February 28, 2025
JUDGMENT:
1. The present First Appeal impugns the dismissal of the Charity Application No.2 of 2012 by the City Civil Court vide sa_mandawgad 1 of 28 fa418-2014f judgment dated 6th March, 2014, which had challenged the Joint Charity Commissioner's order dated 10th February, 2012 setting aside the order dated 26th August, 1991 of Deputy Charity Commissioner allowing the Change Report of appointment of Applicant as Trustee.
FACTUAL MATRIX:
2. The issue in present case is the validity of the impugned judgment dated 6th March, 2014, however, a brief background of the chequered history of litigation between the parties is necessitated which is summarised hereinbelow:
(a) The concerned Dhanjishaw Rattanji Karani and Navajbai Dhanjishaw Karani Charitable Trust was settled in respect of private property bearing No.650, Parsi Colony, admeasuring 780 square yards by registered Deed of Declaration dated 29th April, 1926.
(b) After the demise of Mr. and Mrs.Karani-the original settlor, as per Change Report No.8551 of 1974, their married daughter Ms.Amy S. Mehta and Amy's son Noshir Mehta were appointed as trustees. Noshir Mehta resigned from the position of the Trusteeship.
(c) By Deed of Appointment dated 17 th April, 1975,
sa_mandawgad 2 of 28
fa418-2014f
Amy's husband Sorajbee and other son Minoo were appointed as Trustees and resultantly, in 1975, there were three Trustees i.e. Amy Mehta, Sorabjee Mehta and Minoo Mehta.
(d) After demise of Sorabjee, in 1990, by Resolution dated 22nd April, 1991, Amy Mehta appointed the Appellant i.e. Ms. Khursheed Sorabjee as Trustee. By Deed of Removal dated 10th May, 1991, Amy Mehta removed Minoo Mehta from the Trust.
(e) On 19th August, 1991, Amy Mehta filed Change Report with the office of the Charity Commissioner alongwith the death certificate of Sorabjee Mehta and the consent letter of Khursheed Sorabjee reporting the change of incoming trustee Khursheed Sorabjee.
(f) The Change Report was accepted by the Deputy Charity Commissioner by order dated 26th August, 1991.
(g) On 11th November, 1991, Amy Mehta and Khursheed Sorabjee filed Application No.14 of 1991 under Section 47 read with 41D of Trusts Act for removal/discharge of Minoo Mehta and appointment of Khursheed as trustee.
(h) On 10th April, 1992, Minoo Mehta filed Application
sa_mandawgad 3 of 28
fa418-2014f
No.22 of 1992, under Section 41E read with Section 41A of the Trusts Act, against Noshir Mehta, Amy Mehta and Khursheed Sorabjee questioning the appointment of Khursheed Sorabjee as trustee.
(i) On 24th February, 1994, Minoo Mehta filed Application No.11 of 1994 under Section 70A of the Trusts Act challenging the order dated 26th August, 1991 allowing the Change Report in respect of appointment of Khursheed Sorabjee as Trustee.
(j) On 18th June, 1996, Amy Mehta passed away. Upon the demise of Amy Mehta, Minoo Mehta appointed another trustee in place of Amy Mehta and filed Change Report.
(k) Application No.11 of 1994 and Application No.22 of 1992 filed by Minoo Mehta came to be dismissed for default.
(l) On 24th October, 2005, Minoo Mehta resigned from the trusteeship and filed Change Report No.4070 of 2005 for appointment of his son as trustee. Minoo Mehta filed Misc. Application No.79 of 2006 for restoration of Application No.11 of 1994 and Application No.22 of 1992 which came to be restored by order of Joint Charity sa_mandawgad 4 of 28 fa418-2014f Commissioner dated 17th March, 2007 after recording the consent of the Advocate for Khursheed Sorabjee.
(m) On 2nd November, 2011, in Application No. 1 of 2000 filed for removal of Minoo Mehta, the Joint Charity Commissioner framed charges, however the application came to be disposed of by order dated 2 nd March, 2012, for the reason that Minoo Mehta has been removed by Deed of Removal dated 10th May, 1991 and had also resigned on 24th October, 2005.
(n) Application No.14 of 1991 also came to be disposed of as infructuous.
(o) On 10th February, 2012, Application No.11 of 1994 was allowed and the Change Report accepted by order of 26th August, 1991 came to be rejected. Khursheed Sorabjee filed Charity Application No. 2 of 2012 before City Civil Court against the order of 10th February, 2012, which came to be dismissed leading to the present Appeal.
SUBMISSIONS:
3. Mr. Dhumal, Learned counsel appearing for the Appellant would submit that the Revisional Authority has allowed the Revision holding that there was no affidavit of the reporting sa_mandawgad 5 of 28 fa418-2014f trustees, the original documents were never produced, the Resolution does not bear any date and there is no record to show that the notice and the agenda of the meeting was ever served on Minoo Mehta. He submits that in such event the appropriate course was to remand the matter as Section 70A of Trusts Act permits the Revisional Authority to direct further inquiry to be taken or to take additional evidence.
4. He submits that as far as non service of notice upon Minoo Mehta is concerned, the same Revisional Authority had disposed of the Applications filed by Amy Mehta and Khursheed Sorabjee for removal of Minoo by accepting that Minoo is already removed by Deed of Removal of 1991 and his resignation of 2005 and therefore non service of notice on Minoo could not be a ground for rejecting the Change Report.
5. He further submit the Revision itself could not have been decided as the same was earlier dismissed for non-prosecution and came to be restored by recording that Khursheed Sorabjee was served on 13th August, 2006, whereas from the period of 9 th July, 2006 to 3rd August, 2007, Khursheed Sorabjee was out of India. He submits that before the Appellate Court the objection raised to the restoration of the Applications has been rejected by Appellate sa_mandawgad 6 of 28 fa418-2014f Court by considering the consent given by Khursheed's Advocate and that the postal acknowledgment about the receipt of notice is signed by her constituted attorney.
6. On the appointment of Khursheed Sorabjee which is subject matter of Change Report, he submits that Khursheed Sorabjee being the lineal descendant was appointed as per the Instrument of Trust by Amy Mehta who was sole trustee upon removal of Minoo Mehta by Deed of Removal of 10th May, 1991.
7. He further submits that the Appellate Court has further held that the Change Report was filed beyond 90 days and without an Application for condonation of delay, acceptance of Change Report amounts to giving premium to wrong doer. Drawing support from the decision in the case of Madanrao s/o. Nanasaheb Chavan vs. State of Maharashtra [2002(4) Mh.L.J. 872] and the decision of the Apex Court in the case of Shri Mallikarjun Devasthan, Shelgi v. Subhash Mallikarjun Birajdar and Ors. [2024 SCC OnLine SC 646], he submits that the settled position in law is that it is not mandatory that the written Application be filed seeking condonation of delay and that failure to file Change Report beyond limitation is not fatal in itself.
8. Per contra, Mr. Quraishy, Learned counsel appearing for the sa_mandawgad 7 of 28 fa418-2014f Respondent would submit that as per the Deed of Trust, there is no power given to the trustee to remove the co-trustee and it is only when there is sole Trustee, that unilateral appointment of new trustee can be made. He submits that the Deed of Removal dated 10th May, 1991 is in violation of the Trust Deed and has no effect. He would further point out that Change Report No.3150 of 1991 filed to appoint Khursheed Sorabjee was filed beyond the period of 90 days. He would further point out that the Resolution resolving to appoint Khursheed Sorabjee as a trustee has been signed only by Amy Mehta when Minoo Mehta was also a trustee and that the accompanying consent letter of Khursheed Sorabjee is undated.
9. He would further submit that in Application No.14 of 1991 filed by Amy Mehta and Khursheed Sorabjee against Minoo Mehta, it is stated that Minoo Mehta has refused to sign the Deed of Appointment of Khursheed Sorabjee and that ought to have put the Deputy Charity Commissioner to notice that there was no consent of other trustee and therefore notice was required. He submits that in Revision under Section 70A, there is no question of remanding the matter.
10. He submits that before the City Civil Court, chamber summons taken out by Khursheed Sorabjee for permission to carry sa_mandawgad 8 of 28 fa418-2014f out amendment was dismissed and was verified by Khursheed's constituted attorney who had also consented for restoration of the Application. He would further submit that the further Change Reports appointing new Trustees are pending acceptance due to the present proceedings and therefore, the proceedings could have been contested before the City Civil Court only by Minoo, though he had resigned in the year 2005.
11. In sur-rejoinder, Mr. Dhumal, would submit that the order in the Chamber Summons was challenged before the High Court which came to be allowed. He submits that in the case of Chembur Trombay Education Society v. D.K. Marathe & Ors.[2001 SCC OnLine Bom 842] this Court has held that the inquiry under Section 22 is only to ascertain whether the change has occurred or not and in event, there is finding that change has not occurred in accordance with law, the change will have to be undone and status quo ante has to be restored. He submits that the fact that the Change Report is pending for consideration before the Charity Commissioner would be of no avail and therefore Minoo could not have prosecuted the proceedings before the Appellate Court after having resigned in the year 2005.
sa_mandawgad 9 of 28
fa418-2014f
POINTS FOR DETERMINATION:
12. The following points would arise for determination:
(i) Whether the Resolution dated 22 nd April, 1991 passed unilaterally by Amy Mehta appointing Khursheed Sorabjee as Trustee is in consonance with the Trust Deed and in accordance with law?
(ii) Whether the order of Deputy Charity Commissioner dated 26th August, 1991 accepting the Change Report No.3150 of 1991 of appointment of Khursheed Sorabjee as Trustee is sustainable in law?
AS TO POINT NO.(i):
13. The Trust has been settled by Dhanjishaw Rattanji Karani and Navajbai Dhanjishaw Karani by Instrument of Trust dated 29 th April, 1926, and Clause 4 of the Trust Deed provides for the appointment of new trustees which reads thus:
"4. The power of appointing new trustees conferred by the Indian Trust Act 1882 shall for the purpose of these presents be vested in us during our respective lives and in the survivor of us during his or her life time and after the death-of both of us in the trustees for the time being during their joint lives and in the survivors or survivors of them during their or his life time, upon any such appointment the number of trustees may be xxxx altered provided that it be not increased above four and reduce below two and if at any time the number of trustees shall by death or otherwise be reduced to one new trustee or trustees shall be appointed preferably from among our lineal descendants as soon as conveniently can be put in the meantime and until such appointment all acts of the sole trustee shall be held effectual."
sa_mandawgad 10 of 28
fa418-2014f
14. Clause 4 of the Trust Deed during the lifetime of settlors vests the power of appointment of new trustees in them and after their death, the power is vested in the trustees during their joint lives and in the survivors of them. The maximum number of trustees to appointed are four and the minimum are two. If by reason of death or otherwise, the number of trustees is reduced to one, then the trustee shall be appointed from among the lineal descendant and all acts of Sole Trustee till the appointment shall be held effectual.
15. Clause 4 of Trust Deed is clear and specific and provides that only where the number of trustee is reduced to one by reason of death or otherwise of other trustees, that the Sole Trustee can appoint a trustee. In the year 1975, there were three trustees- Amy Mehta, Sorabjee Mehta and Minoo Mehta. In the year 1990, Sorabjee Mehta expired and two trustees left were Amy Mehta and Minoo Mehta. On 22nd April, 1991, when the resolution was passed for appointment of Khursheed Sorabjee, Minoo Mehta was trustee alongwith Amy Mehta and thus no power vested in Amy Mehta to unilaterally appoint Khursheed Sorabjee.
16. Faced with this difficulty, to substantiate the right in Amy Mehta to appoint Khursheed Sorabjee as trustee by passing of sa_mandawgad 11 of 28 fa418-2014f Resolution dated 22nd April, 1991, reliance is sought to be placed on the Deed of Removal dated 10 th May, 1991 executed by Amy Mehta removing Minoo Mehta from the Trust. Firstly the Instrument of Trust does not acknowledge any power in a Trustee to remove a co-
trustee. Secondly, the respective dates of the Resolution and Deed of Removal assumes significance as the Deed of Removal which is dated 10th May, 1991 is subsequent to the passing of the Resolution i.e. 22nd April, 1991. The admitted position thus is that on the date of passing of unilateral resolution by Amy Mehta appointing Khursheed Sorabjee, Minoo Mehta was a trustee and the Trust Deed did not permit Amy Mehta to unilaterally appoint Khursheed Sorabjee as Trustee.
17. Apart from the fact that the Instrument of Trust did not provide for unilateral appointment, if the Resolution dated 22nd April, 1991 is perused, the same records that in the meeting held on 22nd April, 1991, the Trustees condoled the death of Sorabjee Mehta and it was decided by Trustees to take into consideration the application of Khursheed Sorabjee for appointment as Trustee and that her appointment was made on the post. The Resolution refers to Trustees, in plural, which admits of the fact that Minoo Mehta was a trustee on the date of the Resolution but incorrectly records sa_mandawgad 12 of 28 fa418-2014f that the Trustees decided to appoint Khursheed Sorabjee as Trustee when Minoo Mehta was not present for the meeting and had not consented to the appointment. The Resolution is undated and is signed only by Amy Mehta.
18. The meeting in which the Resolution was passed must be shown to have not only held but validly held. For that purpose it was necessary to produce necessary record before the authority.
There is no record such as proceeding book, copy of notice, agenda etc. produced before any of the authorities or even before this Court to show that such meeting was held and validly held after due service of notice upon the Trustees. The inevitable conclusion is that under the Instrument of Trust, Amy Mehta had no power to unilaterally appoint Khursheed Sorabjee as Trustee and secondly the Resolution itself is not passed in a validly held meeting. Thus, the appointment of Khursheed Sorabjee was not in accordance with the Trust Deed and in consonance with law. Point No.(i) is accordingly answered against the Appellant.
AS TO POINT NO (ii):
19. It would be apposite to first take a look at the relevant statutory provisions. Section 22 of the Trusts Act, provides for reporting of change upon the occurrence thereof within a period of sa_mandawgad 13 of 28 fa418-2014f 90 days to the Deputy or the Assistant Charity Commissioner. Sub-
Section (3) of Section 22 of Trusts Act, reads thus:
"(3) If the Deputy or Assistant Charity Commissioner, as the case may be, after receiving a report under sub-section (1) and holding an inquiry, if necessary under sub-section (2), or merely after holding an inquiry under the said sub-section (2), is satisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, or that the trust should be removed from the register by reason of the change, resulting in both the office of the administration of the trust and the whole of the trust property ceasing to be situated in the State, he shall record a finding with the reasons therefor to that effect; and if he is not so satisfied, he shall record a finding with reasons therefor accordingly. Every inquiry held, either upon receipt of a report under sub-section (1) or merely held under sub-section (2), shall be completed within a period of one year from the date of initiating such an enquiry. Where such inquiry is not completed within a stipulated period of one year, the reasons for delay shall be recorded. Any such finding shall be appealable to the Charity Commissioner. The Deputy or Assistant Charity Commissioner shall amend or delete the entries in the said register in accordance with the finding which requires an amendment or deletion of entries and if appeals were made against such finding, in accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made subject to any further amendment on occurrence of a change or any cancellation of entries, shall be final and conclusive."
20. In exercise of powers conferred by Section 84 of the Trusts Act, Maharashtra Public Trusts Rules, 1951 (for short, "Rules of 1951") have been framed. Rule 7 of the Rules of 1951, provides for the manner of inquiry and reads thus:
sa_mandawgad 14 of 28
fa418-2014f
"7. Manner of inquiries.
Except as otherwise provided in the Act and these rules, inquiries under or for purposes of sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2)(a), 47, 50A, 51, 54(3), and 79AA(2) or any other inquiry which the Charity Commissioner may direct to be held for the purposes of the Act, shall be held, as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Courts Act, 1882, and elsewhere under the Provincial Small Cause Courts Act, 1887. In any inquiry a party may appear in person or by his recognized agent or by a pleader duly appointed to act on his behalf:
Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, be made by the party in person."
21. Rule 13(2A) of the Trusts Rules of 1951, provides for the documents to accompany the Change Report which reads thus:
"13. Changes in the Register of Public Trusts.- (2A) Change Report in the form of Schedule-III shall be accompanied by the following documents,--
(a) Copy of notice or agenda of the meeting of the trustees for the proposed change.
(b) Copy of resolution passed by the board of trustees proposing the change.
(c) In case of sole trustee, the letter of addition or deletion signed by the said sole trustee.
(d) Consent letters of incoming trustees with their details (i.e. full address, identity proof, mobile number, phone number, email address etc).
(e) Affidavit as contemplated in sub-rule (4) of rule 6 of the outgoing trustees:
Provided that, the Deputy or Assistant Charity Commissioner may exempt filing of such affidavit in an appropriate case such as when the trustee, despite due sa_mandawgad 15 of 28 fa418-2014f diligence, is not found.
(f) Trust Deed, constitution and Scheme of the Trust.
(g) Any other document deemed necessary by the Charity Commissioner, as declared by order published in the Official Gazette and on the Official Website of the Charity Commissioner."
22. The nature of the documents prescribed in Rule 13(2A) (a) to
(f) makes it evident that in the absence of these documents, the finding of occurrence of valid change cannot be arrived at.
23. Coming to the facts, the Change Report No.3150 of 1991 was filed on 19th August, 1991 by Amy Mehta in prescribed Schedule-III and was accompanied only by three documents (a) death certificate, (b) copy of resolution and (c) copy of the consent letter of Khursheed Sorabjee. There was non-compliance with the requirements of Rule 13(2A), which should have been considered by the Deputy Charity Commissioner.
24. Before the Deputy Charity Commissioner, neither the notice, agenda of the meeting of the trustees was placed on record nor the Trust Deed, Constitution and Scheme of trust was placed. It needs no elaboration that the appointment of incoming trustee is required to be in accordance with the provisions of the Trust Deed, which could be ascertained only if the Trust Deed was on record. The basic document required to be produced was thus the Trust sa_mandawgad 16 of 28 fa418-2014f Deed which was missing in the present case and without verifying whether the change is as per the mode of succession provided in the Trust Deed, the Change Report has been accepted.
25. The importance of the inquiry to be held under Section 22 of the Trusts Act was elaborated in Jagat Narayansing Swarupsingh Chithere vs Swarumsingh Education Society [1979 SCC OnLine Bom 193], in paragraph 8 and 9 as under:-
"8. Therefore, though prima facie it appears to be a mere change, the scheme of the Act contemplates qua the change under consideration an inquiry of a judicial character with an appeal therefrom to the Charity Commissioner and a further application under section 72 to the District Judge and yet another appeal therefrom to the High Court against which appellate judgment of the High Court, a still further appeal may, in a given case, lie under the Letters Patent. Such being the judicial scrutiny and the extensive gamut of the inquiry under section 22 of the Act, it is obvious that this inquiry cannot be a mere factual process or one purely formal in nature. Investigation into the legality and validity of the change is implicit. The inquiry is a judicial process partaking the character of a judicial adjudication. An elemental pre- requisite or the minimal requirement of a judicial inquiry and a judicial process in compliance with the principles of natural justice. These principles, though not embodied rules, constitute none the less an important facet and pivot of the judicial process. Inquiry behind the back of an aggrieved party is best avoided lest it stands vitiated. One affected must be noticed and heard. Basic lacuna in that respect may well render the inquiry and/or the order therein almost non est at least qua the aggrieved absent party left unheard and, therefore, unheeded.
9. In the circumstances, the fact that a suit may lie against finding in an inquiry under section 22 cannot nullify sa_mandawgad 17 of 28 fa418-2014f its judicial character and trappings nor can it obviate the need to determine, either suo motu or at the instance of party aggrieved, the legality and validity of the change in question. And this is not without reason. For, apart from interpretation within the setting of the relevant scheme under the Act equally relevant to note is also the fact that many a public trust is possessed of extensive movable and immovable properties. Many a public trust assumes vital public importance. In a given case, considerable status also happens to be attached to office under a public trust. Moreover, a given public trust may be in charge and control of funds running literally into lacs of rupees. Registers enjoined to be maintained under section 17 of the Act are also important registers. An enquiry under section 22 is also so envisaged by the Act itself as could in a given case already indicated supra ultimately reach even this Court by way of an appeal as of the instant nature both on facts and on law. And even this appeal may not be the last terminal in the series. For all these reasons and circumstances, it is not possible to accept the contention of Mr. Holey that because a suit lies (on which I express no opinion), the grievance of the appellants should not be entertained in the present proceedings. Even assuming a suit is competent, a party affected by an inquiry under section 22 and order passed therein cannot, therefore, be debarred from agitating its legality and validity under the provisions of the Act itself."
26. The proposition was further explained by Co-ordinate Bench of this Court in Marutirao vs Dinkar Kashinath (supra), where one of the issues under consideration of the Court was whether the non issuance of notice would amount to vitiating the inquiry and in paragraph 9 and 10, it was held as under:
"9. Section 22 does not lay down that the inquiry which is contemplated must be made in every case only after issuing notice to the affected parties. The inquiry contemplated sa_mandawgad 18 of 28 fa418-2014f under Section 22 is as regards the change which has occurred in the entries recorded in the Register maintained under Section 17. The format of the register to be maintained is provided in Schedule I to the said Rules 1951. The said format of the register shows that many particulars such as names of the Trustees and Managers of the Trust, mode of succession, object of the trust, immoveable property of the trust are required to be incorporated. It is obvious that it is not in case of every change that the notice is required to be issued by the Assistant Charity Commissioner before passing any order on the Change Report.
10. When the change report is as regards election of new Trustees held in a meeting, it is not necessary in every case that the notice must be served of the change report on the outgoing trustees. In a given case the change report may be accompanied by the consent letters of the outgoing trustees and/or their affidavits recording their no objection for the change. In such a case if the learned Assistant Charity Commissioner after examining the consent letters and other material produced alongwith the Change Report is satisfied that the documents are genuine and change is legal, after recording reasons for his decision he can allow the Change Report without issuing notice to the outgoing Trustees. In such cases the Assistant/Deputy Charity Commissioner is expected to record brief reasons for not issuing notice. However, in a case in which consent letters of outgoing trustees are not produced or there is doubt regarding genuineness of any such consent letters which are produced or after examining the Change Report and its accompaniments, the learned Charity Commissioner comes to the conclusion that an elaborate inquiry is required, notice to the affected parties will have to be issued before final decision is taken......" (Emphasis supplied).
27. The decisions set out that inquiry of judicial character is expected under Section 22 of Trusts Act. The acceptance of change report is not a casual inquiry and change cannot be accepted as sa_mandawgad 19 of 28 fa418-2014f matter of course and the inquiry into the validity of the change pre- supposes notice to all concerned. As held in Marutirao vs Dinkar Kashinath [2004 SCC OnLine Bom 643] if there is dispensation of service of notice, it is expected that brief reasons will be recorded.
28. In the present case, considering that there was no notice or agenda of the meeting shown to be served to the other trustee and the Resolution having been signed only by Amy Mehta, the same raised a doubt about the genuineness of the document and in such event the Deputy Charity Commissioner before accepting the Change Report ought to have issued notice to Minoo Mehta. The fact that the Resolution itself makes a reference to the trustees which at the relevant time were Amy Mehta and Minoo Mehta and the Resolution was signed only by Amy Mehta, ought to have put the Deputy Charity Commissioner on guard and therefore notice in such a case was required to be issued to Minoo Mehta which was not done thereby vitiating the inquiry.
29. The Deputy Charity Commissioner while accepting the Change Report has adopted a unique method of a rubber stamping order directing that reported change be recorded and Schedule I be amended accordingly. The Deputy Charity Commissioner had lost sight of the statutory provisions governing the manner of sa_mandawgad 20 of 28 fa418-2014f conducting inquiry while adjudicating the Change Report. The order dated 26th August, 1991 is literally a rubber stamp order, which seriously undermines the importance of an inquiry under Section 22 of Trusts Act. Being rubber stamp order, there are no reasons and no findings in support of the acceptance of change. The Deputy Charity Commissioner has clearly lost sight of Rule 7 of Rules of 1951 which provides that the inquiry is to be held in accordance with procedure prescribed for trial of suits under the Presidency Small Causes Court Act. The Presidency Small Causes Court Rules applies the Code of Civil Procedure with its First Schedule to the Small Causes Court and the inquiry is thus regulated by Code of Civil Procedure as regards the recording of evidence and exhibiting of documents. The Deputy Charity Commissioner had clearly fallen in error in accepting the change without any finding recorded about the validity and legality of the change, which finding could have been recorded only after examination of the material on record.
30. The error committed by the Deputy Charity Commissioner was corrected by the Revisional Authority by going into the legality of the proceedings. The Revisional Authority has doubted the validity of the Resolution dated 22nd April, 1991 broadly on the following grounds:
sa_mandawgad 21 of 28
fa418-2014f
(a) The Resolution appointing Khursheed Sorabjee is undated.
(b) The Resolution does not mention of any meeting taking place for filling up vacancy caused by death of Sorabjee Mehta.
(c) No record to show service of notice and agenda of meeting upon Minoo Mehta.
(d) No record to show that Minoo Mehta was called for the meeting.
(e) No evidence to show that Minoo Mehta was present for the meeting or that he gave his consent for appointing new trustee.
(f) The consent letter of Khursheed Sorabjee is undated.
31. The Revisional Authority found the inquiry by Deputy Charity Commissioner to be defective for the following reasons:
(a) The order is rubber stamp order.
(b) The Change Report was filed after period of limitation of 90 days without any application for condonation of delay.
(c) There is no affidavit of reporting trustee and the original documents were not produced before the Authority and therefore their correctness could not be verified.
(d) The Instrument of Trust was not on record and it was duty of the Authority to ascertain mode of succession of appointment of trustees.
sa_mandawgad 22 of 28
fa418-2014f
32. On the aspect of Change Report being filed beyond period of limitation, Mr. Dhumal has relied upon the decision in Mallikarjun Devashtan, Shelgi vs Subhash Mallikarjun Birajdar and Madan rao s/o Nanasaheb Chavan vs State of Maharashtra (supra) to contend that failure to file a Change Report within period of limitation would not be fatal in itself and delay should be condoned as matter of course unless there are special reasons not to do so.
There is no quarrel with the said proposition of law. However, the Revisional Authority has not rested its judgment only on the delay or absence of an application on condonation of delay but has gone into the merits of the matter to set aside the order of acceptance of Change Report.
33. Even if the findings on aspect of limitation are not considered, the merits of the matter do not entitle the Appellant to any relief. Under no circumstances can the order of Deputy Charity Commissioner accepting the Change Report be accepted. Admittedly no notice of the filing of the Change Report was issued to Minoo Mehta. The same is sought to be substantiated on the ground of the removal of Minoo Mehta by Deed of Removal dated 10th May, 1991. Firstly it is not shown that any Change Report was filed by Amy Mehta as regards the removal of Minoo Mehta and sa_mandawgad 23 of 28 fa418-2014f secondly in the absence of the Instrument of Trust being placed on record, it was difficult to examine the validity of Deed of Removal. The order dated 26th August, 1991 accepting the Change Report makes no mention as to why the issuance of notice to Minoo Mehta has been dispensed with. Even if the Deputy Charity Commissioner was of the view that the change was uncontested, appropriate reasons ought to have been recorded, which has not been done.
34. Though it is sought to be contended that if the documents were not produced, the matter ought to have been remanded, the submission cannot be accepted as there is fundamental flaw in the appointment of Khursheed Sorabjee as the appointment is not in consonance with the mode of succession provided in Instrument of Deed and no document produced even if remand was allowed can rectify the said flaw. Assuming arguendo that on 10th May, 1991, Minoo Mehta was removed as trustee, it was still necessary for the Deputy Charity Commissioner to consider whether the change has validly occurred by looking into the Instrument of Trust. Non service of notice to Minoo Mehta is one aspect and validity of change is another. The disposal of the Application No.1 of 2000 by the Revisional Authority by accepting the removal of Minoo Mehta on 10th May, 1991 and his resignation on 24th October, 2005 cannot sa_mandawgad 24 of 28 fa418-2014f support the Appellant's case as the appointment of Khursheed Sorabjee itself was not in consonance with the Trust Deed.
35. In the challenge by Minoo Mehta before the Revisional Authority, the Revisional Authority has rightly considered that the requirement of the statutory provisions and the Rules have not been followed. The findings makes it clear that the Change Report has been rejected not merely on the ground that the documents are not produced but also for the reason that the prescribed procedure under the statutory provisions and the Rules has not been followed. The Resolution was produced without any supporting notice and agenda of the meeting and no document to demonstrate that the notice and agenda of the meeting was served upon Minoo Mehta. Right upto this Court, there is no submission canvassed that in fact, there was a notice and agenda of the meeting which was duly served upon Minoo Mehta and that he did not choose to attend the meeting. On the contrary, the submission is that in exercise of powers under Section 70A of the Trust Act, the evidence could have been taken by Revisional Authority. I have already reproduced herein above the relevant clause of the Trust Deed which would indicate that there was no power vested in Amy Mehta to appoint Khursheed Sorabjee unilaterally. As the defect is sa_mandawgad 25 of 28 fa418-2014f not merely procedural but travels further as regards the mode of succession not being in accordance with the trust deed, the submission of Mr. Dhumal that additional evidence could have been taken by the Revisional Authority cannot be countenanced.
36. Before the Appellate Court an objection was taken as regards the restoration of the Revision Application which was dismissed for default on the ground that the notice was showed to have been served upon Amy Mehta when she was out of India. The Appellate Court has rightly noted that the Advocate was engaged by the Respondent and the order of the Revisional Authority records the oral submission that the Advocate for Khursheed Sorabjee has no objection, if the Application is restored and accordingly, the Revision Application No.11 of 1994 was restored to file. At this stage, useful reference can be made to the decision of the Hon'ble Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas [(1982) 2 SCC 463] and in particular paragraph 4 thereof Their Lordships have held and observed thus:
"4. ..............We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation." We are bound to accept the statement of the sa_mandawgad 26 of 28 fa418-2014f Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected......."
37. As the judicial record shows the oral consent of the Advocate for Khursheed Sorabjee for restoration of the Application, which has not been corrected by Khursheed Sorabjee before the Joint Charity Commissioner, the judicial record is to be accepted.
38. As regards the locus of Minoo Mehta, there was no objection raised during the Revision proceedings. The revision is filed by Minoo Mehta challenging the acceptance of Change Report appointing Khursheed Sorabjee as Trustee without his consent though he was a trustee at the relevant time. The locus is challenged on the ground that Minoo Mehta had resigned on 21 st October, 2005, however, no application was filed by Appellant for sa_mandawgad 27 of 28 fa418-2014f deleting Minoo Mehta from the proceedings and impleading new Trustee. The office of the Charity Commissioner was impleaded as party to the Appellate proceedings alongwith Minoo Mehta and therefore the proceedings do not terminate upon resignation of Minoo Mehta. That apart, the provisions of Section 70A permits the Charity Commissioner to exercise suo motu powers to call for and examine the records and proceedings of any case before the Deputy or Assistant Charity Commissioner in order to satisfy itself as to the validity of the order and to reverse, modify or annul the order. The aspect of locus pales in significance when suo motu powers are conferred to inquire into validity of the order of Deputy Charity Commissioner.
39. In light of the above discussion, the order dated 26 th August, 1991 passed by the Deputy Charity Commissioner accepting the Change Report of Khursheed Sorabjee is unsustainable in law. Point No.(ii) is accordingly answered against the Appellant.
40. Resultantly, First Appeal stands dismissed.
41. In view of dismissal of Appeal, pending Civil/Interim Application, if any, does not survive for consideration and the same stands dismissed.
[Sharmila U. Deshmukh, J.]
sa_mandawgad 28 of 28
Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 28/02/2025 18:17:33