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PETITIONER: SHEIKH ABDUL KAYUM

       Vs.

RESPONDENT: MULLA ALIBHAI

DATE OF JUDGMENT: 17/08/1962

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.

CITATION:  1963 AIR  309            1963 SCR  (3) 623  CITATOR INFO :  RF         1976 SC1476  (1)

ACT: Trust-Properties  vested in trustees-Trustees  creating  new body-Entrustment  of  magement and properties to  new  body- Legality  of-Abdication  and delegation by  trustees-If  and when permissible.

HEADNOTE: 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 s.92 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

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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.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil 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. 406/60) and Respondent Nos, 12  and 14 to 17 (in C.A. No. 407/60). C.   K.   Daphtary,   Solicitor  General  of   India,   J.B. Dadachanji, Rameshwar Nath, S. N. Andley and P.L. Vohra, for the appellants (in C. A. No. 407/60) and respondent Nos.   1 to 3 (in C. A. No. 406/60). B.   Sen  and I. N. Shroff, for respondent Nos. 5 and 6  (in C. A. No. 406/60) and Respondent Nos. 1 and 2 (in C. A.  No. 407 of 60). 1962.   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

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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 s.92 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,

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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 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

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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." 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, 1909, Ex.  P-3 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.  S. 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  i.e.,  it found  that the governing body did use trust  properties  or income therefrom for fighting out litigation in C. S. 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. 15,596-5-8 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.

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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 misapplication of the trust fund to  the extent  of  Rs.  15,596-5-8 and  Rs.900/-.  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 No.1  Society  are liable’ to be removed  on  the  following grounds."  This statement is followed by.an  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

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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,   or(b)    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, 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

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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 cl.5 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

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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  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 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 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

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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. 15,596-5-8 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

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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 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. 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 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. 642