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.) On the question whether the appointment made by a majority is good or not, my attention has been drawn first to the judgment of Tyabji, J. in Champaklal Labhai Mehta v. Hiralal Mansukhlal Munshi (1934) O.C.J. Suit No. 1122 of 1934, decided by Tyabji J., on August 28, 1937 (Unrep.). In that matter a scheme was framed and the trustees were acting thereunder. Clause 8(a) and (c) of the said scheme ran as under : 8. (a) The number of trustees shall never be less than three and the trustees shall have power to add to their numbers provided that the number shall at no time exceed seven. (c) If any trustee or trustees either original or substituted or appointed under this scheme shall die or be absent from British India for a period of one year or be adjudicated an insolvent or be convicted of a criminal offence and punished with imprisonment of not less than six months or desiring to be discharged from or refuse or become unfit or incapable to act in the duties and powers in him re- posed under this scheme the surviving trustees or trustee for the time being shall by writing appoint any other person or persons to be a trustee or trustees in place of the trustee or trustees so dying or being absent from British India or becoming insolvent or being convicted or punished as aforesaid or desiring to be discharged or refusing, to act or becoming unfit or incapable to act as aforesaid. If any such contingency arise and no appointment of trustee or trustees as the case may be made within a period of three months from the happening of such contingency it shall be lawful for the Advocate General of Bombay at any time after the expiration of the said period by writing to appoint a fourth trustee or trustees as the circumstances may require. By Clause 13(a) of the scheme it was provided that every resolution and other question submitted to the meeting shall be decided by a majority of votes of the members present at such meeting and voting on the question. Every member shall have one vote, but in the event of equality of votes, the chairman of such meeting shall have a second or casting vote, whether he has previously voted on the question or not.