MAHOMED JAFFER HAJI NAZARALLI DEVJI Vs. MAHOMED JANMAHOMED

JUDGEMENT

(1.) THIS originating summons is taken out to obtain the Court's opinion on the following two questions : (1) whether under the provisions of the indenture of trust, dated August 1, 1908, and in the circumstances set out in the plaint the appointment of a new trustee can be validly made by some of the trustees of the said trust without the consent and concurrence of all the trustees;and (2) whether defendant No.4 is validly appointed as a trustee of the said trust and whether he can act as such.

(2.) THE plaintiff is one of the trustees of a public charitable trust known as the Jamalbhai Hirji Charitable Trust. Defendants Nos. 1, 2 and 3 are the remaining trustees. In the indenture of trust it was inter alia provided as follows : ...And it is hereby agreed and declared that if and so often as any of the trustees hereby appointed or any future trustees of these presents shall die or renounce the Shia Asna Ashari faith it shall be lawful for the continuing trustees or trustee for the time being of these presents...to appoint some fit person or persons following the Khoja Shia Asna Ashari religion to be a trustee or trustees in the place of the trustee or trustees so dying or renouncing the Shia Asna Ashari faith... with liberty upon any such appointment to increase or diminish the original number of trustees which shall never be less than five or more than seven.... THE plaintiff and defendants Nos. 1, 2 and 3 were appointed trustees in 1927 by one Nazaralli Devji who was then the sole surviving trustee. Nazaralli died on October 18, 1930. A meeting of the trustees was held on February 14, 1940. Notice of that meeting was given to the plaintiff and defendants Nos. 1, 2 and 3, but defendants 1, 2 and 3 only attended. THE third defendant was elected chairman and at that meeting the three defendants purported to appoint the fourth defendant as a trustee of the said trust and further resolved that the necessary document in that behalf be prepared. It is common ground that no deed of appointment has thereafter been made. It is admitted that the plaintiff was not present at the meeting and was not a party to the appointment or the1 said resolution. Although the plaintiff has taken no steps thereafter, there is nothing to show that he consented or agreed to the said appointment. He challenges the appointment on the ground that the power to appoint new trustees was vested in all, and it was not open to a majority of the trustees, even if they alone were present at the meeting, to appoint another trustee. THE question for consideration therefore is whether the appointment so made is valid and binding. In their affidavit the defendants allege that after the meeting of February 14, 1940, defendant No.4 has attended meetings and there is acquiescence on the part of the plaintiff.

(3.) THE matter appears to have been argued at some length before Tyabji J. Relying on Clause 8(a) and (c) of the scheme and the following statements in Lewin on Trusts (13th ed.,) at pages 382 and 385, the learned Judge gave his judgment. THE passages are as follows : So a power given to ' trustees' will, as annexed to the estate and office, be exercisable by a single survivor; but it cannot be exercised by one trustee in the lifetime of the other who has not effectually disclaimed." (p. 382) : " Powers given to trustees must be exercised by them jointly, but an act by one trustee with the sanction and approval of a co-trustee, will be deemed an act of both." (p. 385). THE learned Judge held that the power of appointment was capable of being exercised only by all the trustees concurrently, and answered the questions accordingly.