SUKHBIR SINGH Vs. NIHAL SINGH

JUDGEMENT

(1.) The facts connected with this appeal are as follows. On the 7th of October 1879, one Musammat Jawahir Kunwar made a deed of endowment of certain property. This deed provided that she herself was to be the manager during her life-time. After her death, her husband s brothers were to be the managers. And after them, a member of her husband s family. On the 20th of December 1867, the same lady made a second deed of endowment of other property. In this deed, she stipulated that she should be the manager during her life-time but no further provision was made for the management of the property after her death. On the 21st of May 1898, an elaborate deed was prepared. It set forth that there were no trustees of the property and it appointed some seven persons to be managers and a scheme for the proper administration of the charity was laid down. Amongst the person named as trustees were Lala Nihal Singh, the present plaintiff, Babu Sukhbir Singh, (defendant No. 1), Lala Murli Dhar (defendant No. 2), Lala Har Prasad (defendant No. 3) and Lala Dilwali Singh (defendant No. 4). There were also two other persons who have since died. There can be no doubt that the lady had power to make the first two deeds of endowment. Either the property was her own or she was acting in accordance with the provisions of a prior document executed in the year 1875 between herself and her husband s relatives. There can be no doubt that the deed of the 21st of May 1898 was acted upon, Mutation of names was effected and the property was entered in the names of all the trustees nominated by the Musammat. In the year 1901, the lady executed a further document. In this, she refers to the two endowments and also to the appointment of trustees. Provision is made how the trustees are to act, and it is provided that four trustees should constitute a quorum. In this last mentioned document, there is the following provision: "I, the executant, have power to alter or cancel the conditions entered in the document, or to make an addition to them for the purpose of good management and completely give effect to the particulars mentioned in the said documents. I, the executant, amend, cancel and add the following conditions in the said document." This power evidently refers to possible alterations and amendments of the document of the 21st of May 1898, which appointed the seven trustees and laid down the scheme for the management of the two properties, the subject-matter of the two endowments. On the 10th of February 1902, the same Musammat executed a further document. By this document, she revoked the document of the 12th of August 1901, leaving the document of the 21st of May 1893 still in force. IN September 1902, the Musammat executed a further document. In it she revoked the deed of the 21st of May 1898, stating that she was dissatisfied with the management of the property. She does not state with whom she was dissatisfied, nor does the document make any provision for the appointment of new trustees after her death or during her life-time. The lady then died in the year 1903 at an advanced age. In 1906 a suit was brought by the present appellant and the defendant Murli Dhar seeking to remove the plaintiff Nihal Singh and Dilwali Singh from the office of trustees on the ground of misconduct and misappropriation of the property.

(2.) The Court of first instance dismissed the suit holding that there had been no misappropriation proved against either Nihal Singh or Dilwali Singh. It may here be mentioned that these two persons were members of the family of the husband of the deceaseds The Court held that the deed of the 21st of May 1898 was invalid.

(3.) On appeal to the High Court, it was held, in agreement with the Court of first instance, that no misconduct or breach of trust was established, and that, therefore, the suit failed. But the Court was careful to point out that it was quite unnecessary to decide the validity or invalidity of the deed of the 21st of May 1898.