1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1931 OF 2009 WITH CIVIL APPLICATION NO.4960 OF 2009 Hajrat Peer Malik Rahan Dargah & Anr. )..Appellants Vs. Ibrahim Usman Mujawar & Ors. )..Respondents A N D FIRST APPEAL NO.1932 OF 2009 WITH CIVIL APPLICATION NO.4962 OF 2009 Hajrat Peer Malik Rahan Dargah & Anr. )..Appellants Vs. Ramjan Usman Mujawar & Ors. )..Respondents ---- Mr.A.A.Kumbhakoni i/by A.P.Kulkarni for the appellants. Mr.N.Y.Bandiwadekar i/by Sanjay C. Prabhu for the respondent no.1. Mr. S. S. Patwardhan for the respondent no.2. Mr. J.P .Yagnik AGP for the respondent nos.4 & 5. ---- Coram : R.S.MOHITE,J Date : 8th February, 2010 PC 1 Since both these appeals impugn a common judgment and order, both are being disposed off by this common order. 2 2 Though these appeals are styled as First Appeals, since appeals are filed under Section 72(4) of the Bombay Public Trusts Act, in accordance with settled law, the same can only be admitted if there is substantial question of law involved. 3 On perusing record, it appears that the Joint Charity Commissioner who was the first appellate authority allowed the appeal by holding that the application which was filed at the stage of registration of the public trust indicated that the mode of succession was “hereditary” . The Joint Charity Commissioner has concluded that the term “hereditary” means all the heirs who are entitled to inherit would have a right to act as trustees. The record indicates that the present appellant no.2 Ismail was only one of the 4 sons of the founder trustee Usman who expired on 2.5.1965. It may be stated that the appellant no.2 Ismail who was the eldest son filed a change report in 1966 which was allowed on 26.4.1966. It has been correctly found that there is no mistake in this order in so far as inclusion of the name of appellant no.2 is concerned but that the error pertains to the exclusion of the other heirs who were also entitled to be added as trustees. The contention was that the word `hereditary’ does not exclude succession by law of primogeniture. This contention cannot be accepted because the two terms are not synonymous and entail a totally different mode of succession. The first mode i.e `hereditary’ will give a right to all the heirs to succeed whereas by 2nd mode, succession by the law of primogeniture, only allows the eldest son to succeed. It was contended that the name of appellant no.2 subsisted on record for about 36 years when the 2nd application for a change was made by respondent no.1 on 11.11.2003. It was contended that the application ought to have been made within 90 days. In my view, under Section 22 of the Bombay Public Trusts Act, where 3 a change is required to be made in the interest of administration of public trust, the period of limitation 90 days cannot be said to be applcable. This is apparent from the reading of section 22(1) of the Bombay Public Trusts Act. When the mode of succession is hereditary the exclusion of some of the members who are entitled under the prescribed mode of succession cannot be said to be in the interest of administration of the public trust as allowing only one person to administer the trust would result in centering of the entire administrative powers in exclusion of the rights of others who would be entitled to act as trustees. It was lastly sought to be contended that two of the brothers had not joined in the application filed by the respondent no.1 on 11.11.2003. It was contended that the application as filed, did not include the consent letters by the other brothers. There is no substance in this contention as the change report was for inclusion of all the 3 brothers and the remaining 2 brothers appeared before the Assistant Charity Commissioner and supported the case of the applicant. In this view of the matter, there is no substantial question of law involved and no substance in the First Appeals and therefore, both the First Appeals are summarily dismissed. CIVIL APPLICATION NO.4960 OF 2009 A N D CIVIL APPLICATION NO.4962 OF 2009 As the main appeals are dismissed, Civil Applications also stand dismissed. (R.S.MOHITE,J) 4 5