TMI Blog1962 (8) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... i Hakimia and Coronation High School . Some time before this on May 24, 1909 one Daudi Bohra of Surat of the name of Abdul Hussain- Abdullali Faizullabhai Muchhala made a was of certain properties in Bombay for the benefit and advantage of this school at Burhanpur. For the management of this, trust he appointed as trustees 12 gentlemen whom he mentioned as persons who had already been appointed trustees of the school. Only a few months after this another trust came into existence for the benefit of the same school, by a deed executed by six persons, all Daudi Bohras and all belonging to Burhanpur describing themselves as managers of the school. They created by the deed Waqf and trust of their properties which were mentioned in detail in the body of the deed. Eighty persons, including themselves were named as the trustees. It is further stated by the executants of the deed that all movable and immovable properties connected with the school shall vest in these trustees. It is provided in the deed that the trustees hall be entitled to govern, manage and administer the affairs of the school and shall have the power of framing rules and regulations from time to time for the benefit an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the plaint is that the first defendant, the Hakimia Society and the 10 defendants, defendants Nos. 2 to 11 were not validly appointed trustees in respect of these trust properties. They prayed in this suit for a declaration that these defendants are not vaildly appointed trustees ; for their removal from the management of these properties and for an order on them to render accounts on their administration of these properties. There was also a prayer for the appointment of proper and fit persons for the management of these properties in accordance with the provisions of the trust deed of September 15, 1909, and for the framing of a scheme for the administration of the trust- to which we shall latter refer as the Burhanpur Trust-if it was necessary. The ground on which the plaint claimed that these defendants were not validly appointed trustees was that they had not been appointed as such in accordance with the terms and conditions of the trust deed of September 15, 1909. According to the plaint, whatever entrustment took place by the constitution of the Hakimia Society was invalid in law as the persons who got this registered as the Hakimia Society had no right in law to vest t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding registration of the society and regarding the rules and regulations embodied in the Memorandum of Association. This .registration in the opinion of the Court and the' formation of the Committee of its management for the registered society was one' of the acts done by the trustees in the course of the managements 'and was in fact an act to secure more efficient management of the trust property and the trustees had the power to do it. The Court further held that while it was true that the property which existed at the time the resolution to register the society was passed was then vested in the trustees then existing, there was nothing to prevent those trustees 'who under the Ex. P-3 had the power to frame rules and regulations for the management of the school and the properties connected with it, from providing for the vesting of the property in the members of the governing body by a rule framed by them at a meeting of the trustees held according to the terms of Ex. P-3. According to the Court the trustees had the power to vest the existing property in a governing body consisting of only some of them by a resolution passed at a meeting of trustees. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount was not paid by them they shall be removed and a scheme would be framed and a now trustee would be appointed to take charge of and manage the Madrasai Hakimia Coronation High School and the properties endowed for its benefit. A Commissioner was directed to be appointed to ascertain the amount paid by the managers of the Muchhala trust property to the trustees defendents 12 to 17 and to determine the amount in the hands of these defendants. The same Commissioner was also directed to determine the amount spent by defendants 2 to 11 on religious education in accordance with the directions of the trust deed. The amount was found due to be paid to defendants 2 to 11 to be then deposited, by them in a recognised bank for the benefit to the school. Against this decree of the Trial Court the plaintiffs preferred an appeal to the High Court of Judicature at Nagpur. Another appeal was preferred by defendants 12 to 17 against the Trial-Court's judgment in so far as it directed their removal and gave other reliefs against them. Defendants 1,2,4,5, 9 and 10 filed cross-objections in which they challenged the correctness of the Trial Court's finding that there had been misappli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and unmistakably refer only to these 11 defendants. Common sense and ordinary rules of grammar therefore compel us to read the words defendants in Paras 20 and 26 to mean only defendants Nos. 1 to 11. We have no doubt therefore that the courts below misdirected themselves in thinking that the plaintiffs had asked for any relief as against defendants 12 to 17. It was stated before us that the Muchhala trust was outside the jurisdiction of the Trial Court and' that even if any relief had been asked for against defendants 12 to 17 the Trial Court would not have been competent in law to give such relief. It is unnecessary for us to consider that aspect of the matter as it is abundantly clear that the plaintiffs did not ask for any relief against defendants 12 to 17 and for that reason alone the courts below acted illegally in passing any decree as against those defendants. In the two appeals filed respectively by the plaintiffs and defendants 12, and 14 to 17 the appellants are represented by the learned Solicitor-General and it is conceded by him for the plaintiffs that the plaint did not claim any relief against defts. 12 to 17. The appeal No. 406 of 1960 which is by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a special power in the instrument of trust. 47. A trustee cannot delegate his office or- any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or(b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. It is true that s. I of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less than the principles which have been applied to all trusts in all countries. The principle of the rule against delegation with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unlilaterally. That is why the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that cl.5 of the trust deed does not in any manner authorise the trustees appointed by deed to abdicat in favour of anthor body of persons or to constitute that body as trustees in their own place. There is no question here also of the beneficiary, i.e., the school consenting to such abdication. There is therefore no escape from the conclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school to the Hakimia Society and the properties of the school to the members of the governing body of the Hakima Society was illegal and void in law. The members of the Society or the members of the governing body did not therefore be. come trustees in respect of the properties which are covered by the Burbanpur trust. This position in law is not seriously disputed by Mr. Son, who appeared before us on behalf of the respondents. He has however taken before us a noval line for suporting the decision of the courts below. He has tried to persuade us that the trust deed of September 1909 creates a trust only in respect of the properties that be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te case that they were validly appointed trustees of those properties in accordance with the trust deed of September, 1909. Their case in this matter may best be described in the words used in Para. 4 of the written statement thus It is admitted that on or about 19th March, 1917, seven persons signed a memorandum of Association and registered themselves as members of the Society under Act XXI of 1860. Defendant says that all these persons were the trustees and in the management of be trust properties under trust deed dated 15-9-1909 and were either appointed under that trust or under the rules framed thereunder, and in whom the properties of the institution vested and the same continued to be vested after the registration of the Society. This paragraph unambiguously accepts the plaintiffs' case that all the properties specified in the Schedule M attached to the plaint are properties covered by the trust in question and it pleads that defendants 2 to' 11 are validly appointed trustees of the said trust. The Judgment of the Trial Court and the High Court also clearly show that before them, these defendants claimed to be trustees-validly appointed in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the non-Bohra students will be safeguarded in this school. Accordingly, we allow the appeal and order that it be declared that the defendants 1 to 11 are not validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint ; that the defendants be removed from the management of these properties and they be ordered to render an account of their administration of these properties. Necessary directions for the rendering of accounts will be made by the Trial Court and in doing so, credit will be given to defendants 2 to 11 of ₹ 15,000/and odd already paid by them. The plaintiffs-appellants admit that it is not necessary to frame any scheme for the administration of the trust and we agree that this is not necessary-at least for the present. It is necessary however that new trustees be appointed for the administration of the trust. of the original 18 trustees all except one are dead and sole survivor is admittedly too old to carry on the administration successfully. The very fact that for many year's he has not discharged any functions as a trustee also makes it necessary that new trustees should be appointed. We therefore direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
