Case: Mulla Alibhai &amp; Others Vs. Madrasai Hakimia and Coronation High School &amp; Others, Etc

15000/- and odd has been already paid by defendants 2 to 11 under the decree of the trial Court. 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 SchoolAccordingly 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 Rs. 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."24. The decree which was originally drawn up on the basis of the judgment of this Court ran as under :"That defendants 1 to 11 are not validly appointed trustees in respect of the trust properties mentioned in the list M annexed to the plaint (and all the movable and immovable properties of the said school) and that the said Defendants be removed from the management of the said properties and the said Defendants be and are hereby directed to render an account of their administration of the said properties."25. Subsequently, at the instance of the defendants, the words within brackets were deleted from the decree pursuant to an order of this Court, on the application of the judgment-debtors.26. It is common ground that Hakimia School Building is mentioned in the List trust properties under Item III as sub-item (ii) in the Schedule annexed to the plaint.27. After a careful scrutiny of the pleadings and the judgment of this Court (the material parts of which have been extracted above) we are of opinion that the direction in this Court decree requiring the defendants to render accounts of the administration of the trust properties mentioned in List M, includes a direction to render an account of the income and expenditure relating to the management and running of the Madrasai Hakimia and Coronation High School located in the Hakimia School Building. Incidentally, it may be noticed that in an appeal directed against an order, dated April 10, 1963, passed by the Additional District Judge, which was heard by another learned Judge (Bhargava J.), it was contended that the appointment of receivers for the management of the trust properties till the rendition of accounts by the defendants, was not necessary and the order in that respect should be set aside. In the alternative, it was contended that since the words "and all the moveable and immovable properties of the said School" were deleted from the decree by this Court, there was no. justification for the appointment of receivers of those properties. The learned Judge rejected these contentions and observed :"It is possible to say that the deletion may have been made to omit these properties from the operation of the decree or the deletion may have been because what was already said by the Supreme Court in its judgment to was sufficient to include these properties and it was not necessary to repeat the direction again in the operation part of the decree.""It is a question which would be required to be finally decided in view of the final account whether these words could only mean the brick and mortar building which is standing on the site or the words would also cover the running institution which is housed in the building. On the whole I am prime facie inclined to accept these submissions made by Mr. Joshi (Counsel for the decree-holder). I do not think that the direction included in the operative part of the Supreme Court decree can be used for the purpose of nullifving what was said in the prior portion of the same judgment. However, I expressly refrain from. pronouncing finally on this question at this stage."28. In our opinion, the learned Judge was right in expressing that the direction in the decree in regard to the rendition of the accounts of the trust property viz., Hakimia School building would cover the administration of the School housed therein. If the trust property Hakimia School Building as mentioned at item 5 in the List M were to be construed as only the brick and mortar building, it would rob the direction as to rendition of accounts of its content.29. There is no. indication in the order of this Court as to why the words "and all movable and immovable properties of the said School" were deleted from the decree. The only objection taken to the insertion of these words, in the application of the defendants was that in regard to these words, the decree had not been drafted in accordance with the judgment. In our opinion the deletion of these words does not imply that the defendants were exempted from liability to account in respect of the administration of this School, altogether. The effect of this deletion, however, had to be assessed with reference to the award, dated July 20, 1942, and the decree dated 10-10-1942 of the High Court passed in the appeal arising out of earlier Suit, 5-A of 1936. As extracted above, the movable properties of the School including furniture, books, stationery etc. as they existed on the date of the High Courts decree i. e. October 10, 1942 were not held to be trust properties. The direction as to rendition of accounts contained in the decree will therefore not cover these movable properties as they existed on October 10, 1942.

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

Explanation:
1[ds]27. After a careful scrutiny of the pleadings and the judgment of this Court (the material parts of which have been extracted above) we are of opinion that the direction in this Court decree requiring the defendants to render accounts of the administration of the trust properties mentioned in List M, includes a direction to render an account of the income and expenditure relating to the management and running of the Madrasai Hakimia and Coronation High School located in the Hakimia School Building. Incidentally, it may be noticed that in an appeal directed against an order, dated April 10, 1963, passed by the Additional District Judge, which was heard by another learned Judge (Bhargava J.), it was contended that the appointment of receivers for the management of the trust properties till the rendition of accounts by the defendants, was not necessary and the order in that respect should be set aside. In the alternative, it was contended that since the words "and all the moveable and immovable properties of the said School" were deleted from the decree by this Court, there was no. justification for the appointment of receivers of those properties. The learned Judge rejected these contentions and observedis possible to say that the deletion may have been made to omit these properties from the operation of the decree or the deletion may have been because what was already said by the Supreme Court in its judgment to was sufficient to include these properties and it was not necessary to repeat the direction again in the operation part of the decree.""It is a question which would be required to be finally decided in view of the final account whether these words could only mean the brick and mortar building which is standing on the site or the words would also cover the running institution which is housed in the building. On the whole I am prime facie inclined to accept these submissions made by Mr. Joshi (Counsel for theI do not think that the direction included in the operative part of the Supreme Court decree can be used for the purpose of nullifving what was said in the prior portion of the same judgment. However, I expressly refrain from. pronouncing finally on this question at this stage.In our opinion, the learned Judge was right in expressing that the direction in the decree in regard to the rendition of the accounts of the trust property viz., Hakimia School building would cover the administration of the School housed therein. If the trust property Hakimia School Building  as mentioned at item 5 in the List M were to be construed as only the brick and mortar building, it would rob the direction as to rendition of accounts of its content.29. There is no. indication in the order of this Court as to why the words "and all movable and immovable properties of the said School" were deleted from the decree. The only objection taken to the insertion of these words, in the application of the defendants was that in regard to these words, the decree had not been drafted in accordance with the judgment. In our opinion the deletion of these words does not imply that the defendants were exempted from liability to account in respect of the administration of this School, altogether. The effect of this deletion, however, had to be assessed with reference to the award, dated July 20, 1942, and the decree datedof the High Court passed in the appeal arising out of earlier Suit,5A of 1936.As extracted above, the movable properties of the School including furniture, books, stationery etc. as they existed on the date of the High Courts decree i. e. October 10, 1942 were not held to be trust properties. The direction as to rendition of accounts contained in the decree will therefore not cover these movable properties as they existed on October 10, 1942.