Case: Sheikh Abdul Kayum Vs. Mulla Alibhai

within the properties mentioned in these clauses of the trust deed. As regards Cl. 5 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 had any title to these 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 settlor have created a trust in respect of other properties. There is no question therefore of any property -- other than the properties mentioned in paragraphs 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 belonging 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, 1909.23. 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 best be described in the words used in Para 4 of the written statement thus :"It is admitted that on or about 19th March, 17, seven persons signed a Memorandum of 4ssociation and registered themselves as members of the Society under Act XXI of 1860. Defendant says that se; these persons were the trustees and in the management of the 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."24. This paragraph unambiguously accepts the plaintiff’s 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 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 settlers, 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. Sens 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.25. 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 son tort. They are liable therefore to account for their ensue period of management.26. 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 dear that the plaintiffs are entitled to a decree that these defendants 1 to 11 be removed from the management of the properties.27. The learned Solicitor-General challenged the correctness of the findings of the courts below that these defendants (defendants 1 to11) did not by their misapplication or trust funds to the extent of Rs. 15,596-5-8 and Rs.900 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 in as much 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. 15,000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Court. It is unnecessary to mention the fact that an assurance was given to us by the learned Solicitor-General that in any case the interests of the non-Bohra students will be safeguarded in this school.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16.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 Ss. 46 and 47 of that Act.It is true that S. 1 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 unilaterally. 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 connect ion with his own affairs.18. 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 or persons.19. In the deed itself there is nothing 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 Cl. 5 of the trust deed.The provision for the appointment of new trustees cannot by any stretch of imagination be held 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 properties entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that Cl. 5 of the trust deed not in any manner authorise the trustees appointed by the deed to abdicate in favour of another body of persons or to constitute that body as trustees in their own place.21. 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 of the Hakimia Society and the properties of the school to the members of the governing body of the Hakimia Society was illegal and void in law. The members of the Society or the members of the governing body did not therefore become trustees in respect of the properties which are covered by the Burhanpurhowever, 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.This paragraph unambiguously accepts thecase 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 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 settlers, 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. Sens 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.25. 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 son tort. They are liable therefore to account for their ensue period of management.26. 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 dear that the plaintiffs are entitled to a decree that these defendants 1 to 11 be removed from the management of thethink it unnecessary however to consider these matters in as much 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. 15,000 and odd has been already paid by defendants 2 to 11 under the decree of the Trial Court. It is unnecessary to mention the fact that an assurance was given to us by the learned Solicitor-General that in any case the interests of the non-Bohra students will be safeguarded in this school.