Appeals Nos 466 and 407 of 1960
Appeals by special leave from the judgment and decree dated October 30 1956 of the former Nagpur High Court Now Madhya Pradesh  in F A Nos 79 and 95 of 1949
C K Daphtary Solicitor general of India J B Dadachanji O C Mathur and Ravinder Narain for the appellants in C A No 40660 and Respondent Nos 12 and 14 to 17 in CA No 40760
C K Daphtary Solicitor General of India JB Dadachanji Rameshwar Nath section N Andley and PL Vohra for the appellants in C A No 40760 and respondent Nos 1 to 3 in C A No 40660
B Sen and I N Shroff for respondent Nos 5 and 6 in C A No 40660 and Respondent Nos 1 and 2 in C A No 407 of 60
August 17
The Judgment of the Court was delivered by DAS GUPTA J
This unfortunate litigation over a school which was started sixty years ago is one of the unhappy consequences of a feud that raised its ugly head in the Daudi Bohra Community many years ago
The school was started at Burhanpur by certain members of the Daudi Bohra Community of Burhanpur in the year 1902
It was named Madrasai Faize Hakimia and its object was to 625 impart religious and secular education to boys of the Daudi Bohra Community
Funds were collected for the purpose of the school from the members of that community for the maintenance of the school
In the year 1908 English classes were added to the school and in 1911 it was raised to the status of a High School under the name Madrasai 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 and efficient running of the school  and also have the power to appoint new trustees from time to time in accordance with such rules and regulations
These trustees managed the school and also the properties belonging to the school including the properties of which waqf was made in its favour by the trust deed of September 15 1909 without any trouble till March 1917
In the course of such management 626 some of the original trust properties were converted into new properties by the trustees with the help of additional donations received from members of the Daudi Bohra Community
Trouble started in 1917 when some members of the Community started declaring that Mullaji Taher Saifuddin Saheb who according to the main body of the Community was the Dai ul Mutalaq was not a Dai ul Mutalaq
About the same time four out of the 18 who were appointed by the trust deed of September 15 1909 joined three other members of the Daudi Bohra Community of Burhanpur to form a society by the name of Madrasai Hakimia  Coronation Society the main purpose of which was to run the Hakimia  Coronation High and Primary Schools at Burhanpur
Among other objects were mentioned the development of branches of the school at different places  opening library or libraries at suitable centres  conducting newspaper or newspapers  editing and compiling and publishing books
In the Memorandum of Association it was provided that 12 persons named therein would form the governing body to whom the management of the affairs of the society shall be entrusted
It was further provided that properties of each and every description acquired for or given to Madrasai Hakimia  Coronation High School shall be vested in this governing body
The 10 persons who have been impleaded as defendants 2 to 11 ire members of the governing body of the Society
From the time they assumed the management of the Madrasai Hakimia  Coronation High School as members of the Society they have been administering the properties of which waqf was made in favour of the school by the six gentlemen who executed the trust deed of September 15 1909
The suit out of which these appeals have arisen was started under s92 of the Code of Civil Procedure 627 by 4 Daudi Bohra muslims who claimed to be interested in the trust properties set out in the Schedule to the plaint as members of the Daudi Bohra Community
Their main contention 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 these properties in the Society or the members of the governing body of that Society
As further ground for removal of these defendants from the management of these properties the plaint set out a number of acts said to have been committed by them which it was alleged amounted to a breach of trust
One such act was the defendants  action in throwing open the Madrasai Hakimia  Coronation High School to students other than the Daudi Bohra Community
628 The trustees of the trust created by Mr Muchhala were impleaded as defendants 12 to r7
No relief was however asked for against defendants 12 to 17
The main defences of defendants 1 to 11 were that they had been validly appointed trustees of the properties mentioned in the plaint under the trust deed
of September 1909 in accordance with the rules framed under the trust deed
They claimed that the properties of the institution vested in them and continued to remain vested after the registration of the Society
The allegation of breach of trust was denied
In that connection it was pleaded that the admission of non Bohra students did not amount to a breach of trust
A large number of issues were framed but it would be unnecessary to consider most of these for the decision of  these appeals
The principal question in controversy was whether defendants 1 to 11 were validly appointed trustees of the properties claimed as trust properties in the plaint
The second question was as regards the allegation of breach of trust
The first question was embodied in Issue No 9 thus  Are defendants 2 to 11 duly appointed trustees under the trust deed dated 15 9 1909  The Trial Court answered this question in the affirmative
Relying on the provisions of Para
6 of the trust deed of September 1909 for the framing of rules and regulations for management of the school and properties connected with the school the Court held that the persons who were already trustees under the trust deed had the power by a resolution passed by the majority of the trustees at their meeting to i appoint new trustees
ii to appoint a charge of the trust properties iii to get the body registered and iv to frame rules and regulations such as were embodied in the Memorandum of Association of the Hakimia Society
It pointed out 629 that a majority of the trustees present at a meeting had passed a resolution regarding 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 exhibit 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 exhibit 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
 Accordingly the Court held that defendants 2 to II who were members of the governing body of the Hakimia Society must be held to be validly appointed trustees according to the terms of the trust deed of September 15 in respect of all the properties endowed for the benefit of the school with the exception of Muchhala trust property
The question of breach of trust by defendants 2 to 11
was embodied in Issue No 6 in these words a Did the governing body of the School use the trust properties mentioned in the plaintiffs  list M or any income therefrom for fighting out litigation in 1925 C section No 32 of 1925 630 b Did they misappropriate the trust property or income therefrom c Was the litigation for the benefit of the school  Another part of the allegation of breach of trust finds place in Issue No 11 c thus  Is the admission of the students who do not belong to the Daudi Bohra Community inconsistent with the object of the trust The Trial Court answered questions 6 a and e in the negative ie it found that the governing body did use trust properties or income therefrom for fighting out litigation in C section No 32 of 1925 and that the litigation was not for the benefit of the school
Yet the Court answered Issue No 6 c in the negative finding that such expenditure did not amount to misappropriation
The basis of this last finding is that though some part of the trust fund was misapplied in meetings part of the expenses of litigation which was not for the benefit of the school the defendants 2 to 11 believed though wrongly that by this litigation they would be safeguarding the rights of boys who were receiving education in the school and so the litigation was in the interests of the institution
The Trial Court refused to make a declaration that defendants 1 to 11 were not validly appointed or for their removal
It however gave a decree for the removal of defendants 12 to 72 to 17 the trustees of the Muchhala Trust
Defendants 12 to 17 were further ordered to deposit into the Court the amount collected by them from the Muchhala trust property and were forbidden to recover any income from that property after the date of the decree
The defendants 2 to 11 were ordered to deposit the sum of Rs 15596 5 8 which they were found to have misapplied
It was ordered that if this amount was not paid by them they shall be removed and a 631 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 1245 9 and 10 filed cross objections in which they challenged the correctness of the Trial Court s finding that there had been misapplication of the trust fund to the extent of Rs 15596 5 8 and Rs900 
The High Court dismissed both the appeals as also the cross objections and affirmed the decision of the Trial Court in full
Against the High Court s decision two appeals have been filed before this Court one by the plaintiffs and the other by defendants 12 and 14 to 17 by special leave granted by this Court
The appeal by defendants 12 and 14 to 17 can be easily disposed of
Their contention is that the Trial Court as also the High Court erred in granting a decree against them when the plaintiffs in the suit had not asked for any such relief
In our 632 opinion this contention must be accepted as correct
While it is true that these five appellants Sheikh Abdul Kayum Seth Abdulabhai Mulla Abdulla Bhai Mulla Mohammed Bhai and Seth Hasanali along with Sheikh Fida Ali were impleaded as defendants no relief was sought against them nor was any averments made for that purpose
The prayers in para
26 asked for a declaration that defendants  are not validly appointed trustees that  defendants maybe removed from the management of the properties and that the defendants may be ordered to render an account of their administration of the trust properties
In para
20 also the word defendants was used without any qualification when it was said that it was absolutely necessary in the interest of the said trust that the defendants are not properly appointed trustees of the said trust and that the defendants are trustees de sontort
But when the plaint is read as a whole especially the statements in para
19 it becomes quite clear that the plaintiffs in the present suit are seeking relief only against defendant 1 Hakimia Society and the defendants Nos 2 and 11 the members of the Society
The averments on which the case that defendants are not validly appointed trustees and are trustees de sontort are made
in respect only of these 11 defendants
The allegations of breach of trust are also made only against these defendants
Paragraph 10 puts the matter in clear perspective in these words  The plaintiffs say that defendant No 1 and defendants 2 to 11 who are the present members of defendant No1 Society are liable  to be removed on the following grounds
 This statement is followed byan enumeration of six grounds all of which clearly and unmistakably refer only to these 11 defendants
Common sense and ordinary rules of grammar therefore compel us to read the words defendants 633 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 the original defendants 12  14 to 17 must therefore be allowed
The appeal which has been numbered as 407 of 1960 is by the four plaintiffs
The first contention raised on their behalf by the learned Solicitor Genera is that the original trustees of the Burhanpur trust had no power in law to divest themselves of the property vested in them by the trust deed or to vest these properties in any society or its governing body even though the society or the governing body might include some or all of the old trustees
In the present case it was contended in the plaint and urged before us on behalf of the appellants that the evidence would show that all the old trustees had not joined in the act of 634 formation of the Hakimia Society and transfering the property vested in them to the society or its members
Assuming however for the purpose of the present question that what was done should be deemed in law to be the act
of the entire old body of the trustees even so the learned Counsel argues the act had no legal validity and did not produce in law the consequence of constituting the Hakimia Society or its members trustees in place of the old trustees
In our judgment this contention must succeed
There cannot in our opinion be any doubt about the correctness of the legal position that trustees cannot transfer their duties functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed or agreed to by the entire body of beneficiaries
A person who is appointed a trustee is not bound to accept the trust but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself
Nor can a trustee delegate his office or any of his functions except in some specified cases The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied in respect of trusts to which the Indian Trusts Act applies in sa
46 and 47 of that Act
These sections run thus 46 A trustee who has accepted the trust can not afterwards renonce it except a with the permission of a principal Civil Court of Original Jurisdiction orb if the beneficiary is competent to contract with his consent or c by virtue of a special power in the instrument of trust
635 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 orb 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 section 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 from delegation in the regular course of business that is all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs
What we have got in the present case is not delegation of some functions only but delegation of all functions and of all powers and is nothing short of abdication in favour of a new body of men
Necessarily there is also the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons
We know of no principle of law and of no authority which permits such abdication of trust in favour of another body of persons
636 In the deed itself there is no thing which contemplates or allows such an abdication and the substitution of the old trustees by a new body of trustees
It is necessary in this connection to consider the terms of cl5 of the trust deed That clause is in these words 5
All the aforesaid trustees 3hall be entitled to govern manage and administer the affairs of the school above
These trustees shall have the power of framing rules and regulations from time to time for the benefit and the efficient running of the school and they shall have the power to appoint new trustees from time to time in accordance with the rules and regulations on behalf hereof
All the movable and immovable properties connected with the said school shall come to vest in the trustees and they shall be managed and administered in accordance with the rules and regulations framed on that behalf
The trustees for the time being shall have the power to alter and cancel the rules and regulations and to frame new ones instead thereof at the time when necessary
The treasurer shall have the power to open the cash account in some reliable bank and he shall always arrange for cash dealings to the benefit of the said school in accordance with the holy law of Islam
Shariat
 The provisions for the appointment of new trustees cannot by any stretch of imagination be hold to mean the substitution of the old body of trustees by a new body
That provision only permits the old trustees to add to their number
Nor does the power to frame rules and regulations for the benefit and efficient running of the school authorise the trustees to give up the management of the school themselves or to divest themselves of the 637 properties entrusted to them by the trust deed and vest them in other persons
We are satisfied therefore that cl5 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 ie 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 belonged to the six persons who executed the trust deed
These properties have been set out in cls
7 to 12 of the deed
This deed therefore has not created any trust in respect of such of the properties mentioned in the plaint which do not fall within the properties mentioned in these clauses of the trust deed
As regards cl5 of the trust deed which has been set out above and which states that  All the movable and immovable properties connected with the said school shall come to vest in the trustees the learned Counsel states that the six settlors who executed this trust deed of September 1909 have not been shown to have bad any title to these 638 movable and immovable properties connected with the school
The school argues the learned Counsel is merely a beneficiary of the trust and the properties of the school do not become trust properties entrusted to these trustees merely because the settlors have createated a trust in respect of other properties
There is no question therefore of any property other than the properties mentioned in Paras
7 to 12 of the deed having been vested in the trustees appointed by the deed or their divesting themselves of the same
It is only in so far as the defendants 1 to 11 claim to be the trustees of the properties mentioned in cls
7 to 12 of this deed that they can be considered to be not validly appointed trustees
Mr Sen submits that his clients do not claim to be trustees in respect of these properties viz those which are mentioned in cls
7 to 12 of the deed
In so far as they manage these properties an order may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties only
In respect of other properties which according to Mr Sen are the properties belongining to the beneficiary school however no order could properly be made as they are outside the Burhanpur trust that came into existence by the trust deed of September 1909
The argument appears attractive at first sight and even plausible
Unfortunately however for the respondents this case which their Counsel now seeks to make was never their case in the courts below
Far from saying that some of the properties mentioned in the plaint as trust properties of the Burhanpur trust are not in fact covered by the trust deed these respondents have all along made the definite 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 639 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 the trust deed of September 1909 of all the properties that were mentioned as trust properties of that deed in the plaint
Nothing appears to have been pleaded either in the written statement or at the trial or during the arguments that the settlors of this deed of September 1909 could not create a trust in respect of all the movable and immovable properties connected with the said school as those properties  did not belong to them
On the contrary
the respondents claimed all along to have become trustees in respect of
not only of the properties mentioned in cls
7 to 12 of the deed but also of all other properties of the school on the strength of this very trust deed Mr Sen s 640 contention that some items of the properties mentioned in the plaint as trust properties covered by the trust deed of September 15 1909 were not so covered cannot therefore be accepted We find it established therefore that defendants 1 to 11 were not validly appointed trustees in respect of the trust properties mentioned in the plaint
Their possession and management of these properties must therefore be held to be only in the character of trustee de sontort
They are liable there fore to account for their entire period of management
From the very fact that they have no legal right to remain in possession of the trust properties not having been validly appointed as trustees it is equally clear that the plaintiffs are entitled to a decree that those defendants 1 to 11 be removed from the management of the properties
The learned Solicitor General challenged the correctness of the findings of the courts below that these defendants defendants 1 to 11  did not by their misapplication of trust funds to the extent of Rs 15596 5 8 and Rs 9001 commit misappropriation and also that the admission of students who did not belong to the Daudi Bohra Community was not inconsistent with the object of the trust We think it unnecessary however to consider these matters inasmuch as even if these findings of the courts below are correct the plaintiffs are entitled to the reliefs they have asked for in this suit
Besides the amount of Rs 15000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Courts
It is necessary to mention the fact that an assurance was given to by the learned Solicitor General that in any case the interest of 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 641 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 Rs 15000and 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 that suitable persons be appointed by the Trial Court as new trustees after giving an opportunity to the plaintiffs and other responsible members of the Daudi Bohra Community to place their recomendations and objections in this matter
Both the appeals are accordingly allowed The Plaintiffs will get their costs here and also in the Trial Court and the High Court from defendants 1 to 11
There will be one set of hearing fee for the two appeals
Appeals allowed


Summary:
In 1909 six persons created the Burhanpur Trust for governing managing and administering the affairs of a school in Burhanpur
Under the Trust deed 18 persons were appointed as the trustees and all movable and immovable properties connected with the school were vested in them
Clause 5 of the Trust deed empowered the trustees to appoint new trustees from time to time and to frame rules and regulations for the benefit and efficient running of the school
In 1917 the Hakimia Society was formed by the trustees for the purpose of running the school and 12 persons were named members of the governing council in which all the properties of the school were vested
Since then ten members of the governing council have been administering the properties in respect of which a trust was created in 1909
A suit under s92 Code of Civil Procedure was filed for removal of the ten members of the governing council inter alia on the ground the Hakimia Society and the ten members of the governing council had not been validly appointed trustees of the trust properties
Held that the ten members of the governing council of the Hakimia Society were not validity appointed trustees of the Trust properties and were liable to be removed from the management thereof The trustees of the Burhanpur Trust had no power to create another body of men as trustees in their own place
Trustees who have once entered upon the trust cannot renounce their duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself
Nor can trustees delegate their offices or any of their functions except in some specified cases
In the present case there was delegation of all the powers and functions of the trustees amounting to abdication in favour of a new body of men
The trustees sought to divest themselves of the properties vested in them by the trust deed and to vest them in the 624 new body
Such abdication could not be permitted
There was nothing in
the trust deed which allowed such an abdication and substitution of trustees
 The provision in cl 5 for appointment of new trustees only permitted the old trustees to add to their number
Nor did the power to frame rules and regulations authorise the trustees to give up the management of the school themselves or to divest them
selves of the properties entrusted to them by the trust deed and vest them in other persons