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(iii) Khadijabibi Azam Hatiya. The objects of the Trust are public charitable for the benefit of public at large and mode of succession for appointment of Trustees as mentioned in the deed is that the surviving Trustee shall nominate a person during his life time by filling the name of the person in the nomination form attached in the document creating the Trust and the nominee should accept such nomination as per the consent form mentioned in the document creating the Trust.
[5] Out of the three Trustees, Khadijabibi Azam Hatiya expired on 27th January, 1984, without nominating any person. The remaining Trustees convened a meeting on 3rd May, 1985 and appointed two persons as Trustees in place of the deceased Trustee. After the appointment, a change report was submitted in the office of the learned Assistant Charity Commissioner, Surat being Change Report No.287 of 1985. The said change report came to be decided on 30th June, 1986 and as per the order in the change report, the change report was rejected as the appointment was not made as per the provisions of the Trust Deed.
[6] Thereafter, out of two surviving Trustees another Trustee Mr.Moulvi Mohemmed Azam Hatiya also expired on 17th January, 1993 and prior to that he resigned from the Trust. No one was nominated by him as per the provisions of the Trust Deed. After demise of the said Trustee, only Trustee left was the petitioner and the petitioner under the provisions of Section 47 of the Act made an application to the District Court at Surat being Misc. Civil (Trust) Application No.48 of 1997. In the said matter, the contention was raised on behalf of the respondent that the document created by the settlor dated 3rd April, 1974 is a document creating a wakf and, therefore, the provisions of Wakf Act, 1995 are applicable to the petitioner and the District Court will have no jurisdiction under the provisions of Section 47 of the Bombay Public Trusts Act. On the basis of the said contentions, the District Court, Surat rejected the said application filed by the petitioner on the ground of lack of jurisdiction by its order dated 28th April, 1998.