Nos.977 and 1251 of 2003 CRP.NPD No.977/2003 Shaik Ansar Basha alias S.A.Basha v. C.Y.Javid Ahmed2.Rahman Hussain Sayeed3.Abid

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 6.6.2007Coram:The Hon'ble Mr.JUSTICE S.RAJESWARAN C.R.P.(NPD) Nos.977 and 1251 of 2003CRP.NPD No.977/2003Shaik Ansar Basha alias S.A.Basha.. Petitioner(8th Applicant)vs.1.C.Y.Javid Ahmed2.Rahman Hussain Sayeed3.Abid Hussain Sayed4.C.Y.Mushtaq Ahamed5.Md.Noruddin Siddique6.Khadar Basha7.S.Khalaisha8.Sadullah basha9.Md.Shafiul Hussain10.Ansar Basha11.M.A.Mohamed Haneef Ghouse12.N.Khaleel Ahamed13.Major Shaik Ahamed14.S.Dawood Sheriff(Respondents 1 to 3, 5, 7,8,10,13and 14 are not necessary partiesHence they are given up).. Respondents (1 to 7 and8 to 11 applicants for shares and 1 to 4 non sharers applicants)C.R.P.NPD.No.1251/2003Mohamed Nooruddin Siddique.. Petitioner (5th Applicant for sharer)vs.1.C.Y.Javid Ahmed2.Rahman Hussain Sayeed3.Abid Hussain Sayed4.C.Y.Mushtaq Ahamed5.Khader Basha6.S.Khalaisha7.S.A.Basha https://hcservices.ecourts.gov.in/hcservices/

8.Sadullah Basha9.Md.Shafiul Hussain10.Ansar Basha11.M.A.Mohamed Haneef Ghouse12.N.Khaleel Ahamed13.Major Sahik Ahamed14.S.Dawood Sheriff.. Respondents/RespondentsApplicants 1 to 4 for Respondnets 1 to 3, 6 to 18 10, 13,and 4 are not necessary parties. Hencethey are given upRevision Petitions filed against the order dated 25.2.2003 ofthe Scheme Court (Principal Sub Judge Court, Chingleput) on Memoin Scheme O.S.No.27/1940.For Petitioners: Mr.Zaffarullah Khan, in CRP.NPD.No.977/2003. Mr.Satish Parasaran, in CRP.NPD.No.1251/2003.For Respondents: Ms.Jayashree, in both C.R.Ps. 4, 6 and 9 in CR NO. 977/03 AND rr1, 4 to6, 9 to 12 in CRP NO. 1251/03 COMMON ORDERThese Revision Petitions have been filed against the orderdated 25.2.2003 of the Scheme Court (Principal Sub Judge Court,Chingleput) on Memo in Scheme O.S.No.27/1940.2.Heard the respective counsel and also the parties inperson.3.Civil Revision Petition No.977/2003 was filed by SheikAnsar Basha, alias S.A.Basha, whose application for appointment oftrustee of the Covelong Darga was rejected by the Principal Sub-Judge (Scheme Court) on 25.2.2003 on memo in SchemeO.S.No.27/1940. He is challenging not only the rejection of hisapplication but also the appointment of respondents 4, 6, 9, 11and 12 as trustees.4.C.R.P.NPD.No.1251/2003 was filed by Md.Nooruddin Siddiquechallenging the very same order of the Scheme Court dated25.2.2003 not only the rejection of his application as a trusteefor the same Darga, but also the appointment of the samerespondents as trustees as shown in the otherC.R.P.NPD.No.977/2003. In effect the petitioners while reiteratingthat they should have been appointed as trustees, contended that https://hcservices.ecourts.gov.in/hcservices/ the respondents above, namely, C.Y.Javid Mushtaq Ahmed, KhadarBasha, Md.Shafiul Hussain, M.A.Mohamed Haneef Ghouse and N.KhaleelAhamed ought not to have been appointed at all.5.First let me consider why the revision petitioner's(CRP.NPD.No.977/2003) application was rejected by the SchemeCourt.6.The Scheme Court considering the fact that the revisionpetitioner was born in 1942 and he is an aged man when compared toother persons, rejected his application. The Scheme Court alsoadverted to the fact that even though he mentioned in theapplication that he has studied up to E.S.S.L.C., he did notproduce any document to prove his qualification.7.I do not find any illegality in the above findings ofScheme Court while rejecting the petitioner's applicationwarranting interference under Sec.115 C.P.C. In a trust matterof this nature while appointing the trustees on the basis of aScheme decree, some element of discretion is always conferred onthe scheme court while appointing the trustees keeping in mind thewelfare of the trust and its proper administration. Further inthe Scheme decree passed in O.S.No.27/1940 on 19.12.1941, theScheme Court has clearly observed that the court while makingappointment of trustees, shall have regard to the candidate'sstatus, learning, influence, character and piety which shall begrounds for preference.8.Whether these grounds are adhered to in the appointment ofthe five respondents whose appointments were challenged in boththe revision petitions, ought to be considered now. Insofar asthe appointment of M.A.Md.Haneef Ghouse and N.Kaleel Ahamed areconcerned, the major objections seem to be that they arepractising lawyers who could not devote much time for theinstitution.9.I do not find any merit in the above objection as thepractising lawyers would find time for administration of theinstitution and on that ground their appointment cannot be setaside.10.Insofar as C.Y.Mushtaq Ahamed's appointment is concernedit is assailed on the ground that when he was the President of theBoard of Trustees, he misrepresented to the court that on21.2.2001 in I.A.No.72/2001 and called for applications only fromthe male lineal descendants of the founder. The furtherallegations against him is that when he was functioning as atrustee from 1996, he failed to deposit 5% of the hundial incomeand failed to account for the grant of Rs.3,50,000/- obtained byhim from the Tamil Nadu Wakf Board. https://hcservices.ecourts.gov.in/hcservices/

11.A counter affidavit was filed by C.Y.Mushtaq Ahmed denyingthe allegations. He raised a preliminary objection forconsidering the revision petitioners themselves as the revisionpetitioners did not make any objection within the stipulated timeof 15 days before the Scheme Court and having failed to raise anyobjection at the relevant point of time, they could not bepermitted to raise these objections for the first time before thiscourt.12.I find force in the above contentions of this respondent.It was not explained by the revision petitioners for not raisingthe objections before the Scheme Court itself when 15 days' timewere given for doing so. Further the allegations levelled againsthim still remain as allegations and they are substantiated withadequate materials. In fact the notification calling forapplications for the post of sharer trustee from the lineal maledescendants is concerned, this court in C.R.P.NPD.No.3241/2001 on30.10.2001 clearly observed that this notification is simply thereproduction of the order passed as per the decree and thereforethe challenge made to their notification was rightly rejected bythe Scheme Court. Further on the basis of the allegations alonethe appointment cannot be set aside. In fact, some allegationswere levelled against the revision petitioner himself inCRP.NPD.No.1251/2003 resulting in his removal as a trustee but hisinnocence was proved before the court which directed reinvestmentof a sum of Rs.26,635.59 spent by the petitioner from his pocket.Therefore I do not find any merits in challenging the appointmentof C.Y.Mushtaq Ahamed.13.Insofar as the appointment of Kadar Basha is concerned itwas mainly objected to on the ground that when his father was asharer as on date, he is not a sharer and therefore he could notbe appointed as a trustee.14.No material was placed before me by the revisionpetitioners to show that when his father who is a sharer is verymuch there, the son could not be appointed as trustee. Noprovision in the Scheme decree passed in O.S.No.27/1940 wasbrought to my knowledge barring such appointments. In his counteraffidavit, the above said Kadar Basha referred to an appointmentin the year 1973 when one C.N.Moinuddin Ahamed, S/o.Nazir Ahamedwas appointed as a sharer trustee during the lifetime of hisfather. He also referred to two other such appointments and insuch circumstances I do not find any merit in the contentions ofthe revision petitioners and this appointment cannot also be setaside.15.Regarding the appointment of Shafiul Haq is concernedexcepting making some general and bald allegations, no specific https://hcservices.ecourts.gov.in/hcservices/ case has been made out to set aside his appointment. As alreadymentioned by me, the revision petitioners did not explain beforethis court with conviction as to their failure to raise theseobjections before the Scheme Court when 15 days time were givenfor doing so. Further I do not find any substantial material tointerfere with the order of the Scheme Court, which has got someelement of discretion in the matter of this nature. Unless suchexercise of discretion is illegal, unreasonable and perverse, thiscourt cannot interfere with the same under Sec.115 C.P.C.16.In the result, both these Civil Revision Petitions aredismissed. No costs. C.M.P.Nos.10183 and 13766 of 2003 are alsodismissed. sksSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Principal Subordinate JudgeChengalpet+2ccs to Mr. Hajee. Md. Nooruddin Sidque,Advocate sr no. 31853bv(Co)nm(14.06.07)C.R.P.(NPD)977 & 1251/03.