FATMABIBI Vs. SHAIK HASSAN

JUDGEMENT

(1.) On the 23 of January 1871 Fatmabibi, the original first plaintiff and her husband Haji Ebrahim Haji Abdul Cadur Jitayker, executed an indenture of trust whereby they conveyed certain immoveable and moveable property to Haji Abdul Cadur bin Rahiroudin Jitayker and Hassamudin Shabudir. Jitayker as trustees upon certain trusts which are set out in the said indenture of trust. The settlors reserved to themselves life interest in the settled property and then declared certain other trusts in favour of their progeny which it is unnecessary to refer to further in view of the events that have happened. In the event of failure of progeny it is provided that the "trustees or trustee shall stand possessed of the said hereditaments and premises in trust for such charitable uses, intents and purposes as to the trustees or trustee for the time being of these presents shall seem meet and expedient." The settlors reserved to themselves and the survivor of them the right to nominate and appoint trustee or trustees in the place of retiring or dying trustee or trustees. Haji Ebrahim Jitayker, one of the settlors and Hassamudin Shabudin, one of the original trustees, died in 1872. The surviving settlor Fatmabibi by an indenture bearing date the 2 July, 1873 appointed Shaik Hassain bin Goolam Mohidin Rogay, the first defendant in this suit, a trustee in the place of the deceased trustee Hissamudin. The surviving trustee joined in the Indenture and conveyed the trust premises jointly to himself and the new trustee. Haji Abdul Cadur, the surviving original trustee, died in February, 1905. In his place Fatmabibi, by an indenture dated the 13 of March 1905, appointed the 2nd defendant Nawabzada Nassarulla Khan another trustee. The deed appointing the first defendant, which is endorsed on the original indenture of trust, is registered. The deed appointing the 2nd defendant, which is also endorsed on the original trust deed, is not registered. By a deed of appointment bearing date the 2 August, 1906, Fatmabibi appointed the 2nd plaintiff Haji Sulleman Abdul Wahed an additional trustee and by another deed bearing date the 26 of November 1906 Fatmabibi appointed Abdul Rahiman Jitayker and Hasson Khan Ahmed-khan, the 3 and 4 plaintiffs herein, as additional trustees.

(2.) The 1 and 2nd defendants refused to recognise the second, third and fourth plaintiffs as their co-trustees. They contended that Fatmabibi, under the indenture of trust of the 23 of January 1871, had no power to appoint additional trustees at the time and in the manner she had purported to do. Fatmabibi and the newly appointed trustees then raised the question whether in view of the fact that the deed appointing Nawabzada Nussarulla Khan was not registered he was a validly appointed trustee. Fatmabibi and the three newly appointed trustees then filed this suit and took out an Originating Summons for the purpose of having these differences of opinion settled by the Court. The two principal questions argued before me were first, whether the deed appointing the 2nd defendant required registration, and, secondly, whether the 2nd, 3 and 4 plaintiffs are validly appointed trustees.

(3.) After filing this suit Fatmabibi, the original first plaintiff, died The settlors have left no progeny and the whole of the trust property must now be utilized for charitable uses and purposes as provided by the deed of settlement.