Sheikh Abdul Kayum vs Mulla Alibhai

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 466 and 407 of 1960

Decision Date: 17 August 1962

Coram: K.C. Das Gupta, P.B. Gajendragadkar

In the case Sheikh Abdul Kayum versus Mulla Alibhai, the Supreme Court of India delivered its judgment on 17 August 1962. The opinion was authored by Justice K.C. Das Gupta, who sat with Justice P.B. Gajendragadkar. The matter is reported in the 1963 volume of the All India Reporter at page 309 and also in the 1963 Supreme Court Reports, third series, page 623, with a later citator reference to 1976 SC 1476 (1). The dispute concerned the administration of trust‑property that had been vested in the trustees of the Burhanpur Trust and whether those trustees could lawfully delegate or abdicate their duties by creating a new managing body. The headnote explains that in 1909 six individuals established the Burhanpur Trust to govern, manage, and administer a school in Burhanpur. The trust deed appointed eighteen persons as trustees, vesting all movable and immovable school property in them, and it contained a clause—clause 5—authorising the trustees to “appoint new trustees from time to time” and to make rules for the school’s efficient operation. In 1917 the trustees formed the Hakimia Society to run the school, naming twelve persons to a governing council that held the school’s property. Over time ten members of this council actually administered the property. A suit was brought under section 92 of the Code of Civil Procedure seeking the removal of those ten council members on the ground that neither the Hakimia Society nor its council members had been validly appointed as trustees of the trust property. The Court held that the ten council members were not validly appointed trustees and therefore could be removed from the management of the trust assets. The Court further observed that the original trustees of the Burhanpur Trust possessed no authority to create a completely new body of trustees in their place. Once persons become trustees they may not renounce their duties and liabilities except with the Court’s permission, with the consent of the beneficiaries, or if the trust deed itself expressly allows it. Moreover, trustees cannot delegate their offices or functions except in narrowly defined circumstances. In the present case the trustees had delegated all of their powers and functions to a new body, an act amounting to abdication, which the Court found impermissible. The trust deed contained no provision permitting such abdication or substitution of trustees. Clause 5 only allowed the existing trustees to add new trustees to their numbers, and the power to frame rules and regulations did not empower the trustees to relinquish management of the school.

The Court observed that the trustees could not alienate or divest themselves of the properties that the trust deed had placed in their custody, nor could they vest those properties in any other persons. The appeal fell under the civil appellate jurisdiction, involving Civil Appeals Nos. 466 and 407 of 1960, and was brought by special leave from the judgment and decree dated 30 October 1956 of the former Nagpur High Court, now the Madhya Pradesh High Court, in the original filings numbered 79 and 95 of 1949. Counsel for the appellants comprised the Solicitor General of India together with other counsel, while counsel for the respondents also included the Solicitor General of India along with additional counsel. The matter was heard on 17 August 1962, and the judgment was delivered by Justice Das Gupta.

This litigation concerned a school that had been established sixty years earlier in Burhanpur by members of the Daudi Bohra community. The school began operations in 1902 under the name Madrasai Faize Hakimia and was intended to provide both religious and secular education to boys belonging to that community. Funds for the school’s maintenance were collected from community members. In 1908 English classes were introduced, and in 1911 the institution was upgraded to a high school, adopting the name Madrasai Hakimia and Coronation High School. On 24 May 1909 a Daudi Bohra merchant from Surat, named Abdul Hussain‑Abdullali Faizullabhai Muchhala, dedicated certain properties located in Bombay for the benefit and advantage of the Burhanpur school. To manage those endowed properties, he appointed twelve gentlemen as trustees, specifically naming them as individuals who had already been serving as trustees of the school.

A few months after that dedication, another trust was created for the same school by a deed executed by six Daudi Bohra individuals, all residents of Burhanpur and describing themselves as the school’s managers. By that deed they constituted a “Waqf and trust of their properties,” enumerating the specific properties in detail within the body of the instrument. The deed named eighty persons, including the six executants, as trustees of the waqf. The executants declared that all movable and immovable property connected with the school would vest in these trustees. Furthermore, the deed provided that the trustees were entitled to govern, manage and administer the affairs of the school and were empowered to frame rules and regulations from time to time for the benefit and efficient running of the school.

The trustees were authorised to make rules from time to time for the benefit and efficient running of the school, and they also had the power to appoint new trustees in accordance with those rules. These trustees administered the school and also the properties belonging to the school, including the properties that had been vested in the school by a waqf created by the trust deed dated 15 September 1909. Their administration continued without difficulty until March 1917. During their management, some of the original trust properties were converted into new properties with the assistance of additional donations received from members of the Daudi Bohra community. Difficulties began in 1917 when certain members of the community began to assert that Mullaji Taher Saifuddin Saheb, who the main body of the community recognised as the Dai‑ul‑Mutalaq, was in fact not the Dai‑ul‑Mutalaq. Around the same period, four of the eighteen persons appointed by the trust deed of 15 September 1909 joined three other members of the Daudi Bohra community of Burhanpur to establish a society called the “Madrasai Hakimia & Coronation Society”. The principal purpose of that society was to operate the Hakimia & Coronation High and Primary Schools at Burhanpur. Its memorandum of association also listed other objects, such as developing branches of the school at various locations, opening libraries at suitable centres, publishing newspapers, and editing, compiling and publishing books. The memorandum provided that twelve persons named therein would constitute the governing body to which the management of the society’s affairs would be entrusted, and it further provided that any property of any description acquired for or given to Madrasai Hakimia & Coronation High School would vest in that governing body. The ten persons now impleaded as defendants numbered two to eleven are members of that governing body. From the moment they assumed management of the Madrasai Hakimia & Coronation High School as members of the society, they have been administering the properties that had been placed in waqf for the school by the six gentlemen who executed the trust deed of 15 September 1909. The suit from which these appeals arise was instituted under section 92 of the Code of Civil Procedure by four Daudi Bohra Muslims who claimed to be interested in the trust properties listed in the schedule to the plaint as members of the Daudi Bohra community. Their principal allegation in the plaint is that the first defendant, the Hakimia Society, and the ten defendants numbered two to eleven were not validly appointed as trustees of those trust properties. They prayed for a declaration that those defendants were not validly appointed trustees, for their removal from the management of the properties, and for an order directing them to render accounts of their administration of the properties. The plaint also sought the appointment of proper and fit persons to manage the properties.

In the suit the plaintiffs asked that the Court order the management of the trust properties to be placed under persons appointed in accordance with the trust deed of 15 September 1909, and that a scheme for administering the trust—referred to later as the Burhanpur Trust—be prepared if it was required. The plaintiffs argued that the defendants were not validly appointed trustees because their appointment did not follow the terms and conditions set out in the 1909 deed. According to the plaintiffs, the entrustment that occurred when the Hakimia Society was formed was illegal, since the individuals who had registered the society possessed no legal right to transfer the properties to the society or to the members of its governing body. As an additional ground for removing the defendants from control, the plaint listed several acts that it said constituted a breach of trust; one such act was the defendants’ decision to open the Madrasai Hakimia & Coronation High School to students who were not members of the Daudi Bohra community. The trustees created by Mr Muchhala were also named as defendants 12 to 17, but the plaint did not seek any relief against those persons. The principal defendants, numbered 1 to 11, defended themselves by asserting that they had been validly appointed as trustees of the properties described in the plaint, that the appointment had been made in accordance with the trust deed of September 1909 and the rules framed under that deed, and that the properties of the institution remained vested in them even after the society was registered. They denied that any breach of trust had occurred and contended that admitting non‑Bohra students did not amount to a breach. While the trial court had framed a large number of issues, most of them were unnecessary for deciding the appeals. The two main questions that remained in controversy were: first, whether defendants 1 to 11 were validly appointed trustees of the properties claimed as trust property; and second, whether a breach of trust had taken place. The first question was formulated as Issue No. 9, which asked, “Are defendants 2 to 11 duly appointed trustees under the trust deed dated 15‑9‑1909?” The trial court answered this issue in the affirmative. In reaching that conclusion, the court relied on paragraph 6 of the trust deed, which authorized the existing trustees to frame rules and regulations for managing the school and its associated properties. The court held that the trustees who were already in office under the deed possessed the power, by a resolution passed by a majority of the trustees at a meeting, to (i) appoint new trustees, (ii) appoint a charge over the trust properties, (iii) have the body registered, and (iv) frame the necessary rules and regulations.

In addressing the matters concerning the Hakimia Society, the Court observed that the Memorandum of Association of that society had been incorporated into the trust arrangements. It noted that a majority of the trustees who were present at a duly convened meeting had passed a resolution to register the society and to adopt the rules and regulations set out in its Memorandum of Association. In the Court’s view, the act of registration, together with the creation of a management committee for the newly registered society, constituted one of the actions undertaken by the trustees in the ordinary course of managing the trust, and such action was intended to secure more efficient administration of the trust property, a power that the trustees possessed. The Court further held that, although the property existing at the time the registration resolution was passed was then held by the trustees who were then in office, nothing prevented those trustees, who under Exhibit P‑3 were empowered to frame rules and regulations for the management of the school and its associated properties, from enacting a rule that would vest the property in the members of the governing body, provided that such a rule was adopted at a trustees’ meeting convened in accordance with the provisions of Exhibit P‑3. Accordingly, the Court stated that the trustees had the authority to transfer the existing property to a governing body consisting of only some of the trustees by means of a resolution passed at a proper trustees’ meeting. On that basis, the Court concluded that defendants numbered two through eleven, who were members of the governing body of the Hakimia Society, must be deemed validly appointed trustees under the terms of the trust deed dated 15 September 1909, Exhibit P‑3, with respect to all properties endowed for the benefit of the school, except for the property belonging to the Muchhala Trust. The Court then turned to the alleged breach of trust by defendants two to eleven, which had been framed in Issue No. 6 and read as follows: (a) whether the governing body of the school used the trust properties listed in the plaintiffs’ schedule or any income therefrom to fund litigation dated 1925 (Civil Suit No. 32 of 1925); (b) whether they misappropriated the trust property or its income; and (c) whether that litigation was undertaken for the benefit of the school. A further allegation of breach of trust appeared in Issue No. 11 (c), which asked whether admitting students who did not belong to the Daudi Bohra community ran contrary to the object of the trust. The Trial Court answered questions 6(a) and 6(e) in the negative, meaning that it found the governing body did use trust properties or income for pursuing the 1925 litigation and that such litigation was not for the benefit of the school. However, the Court answered Issue No. 6(c) in the negative as well, holding that the expenditure on the litigation did not amount to misappropriation. The Court’s reasoning for this latter finding was that, although some portion of the trust fund had been misapplied in connection with the litigation expenses, the defendants believed, albeit incorrectly, that the litigation was intended to protect the rights of the boys receiving education in the school and therefore was in the interests of the institution.

In this case the Court observed that a portion of the trust fund had been misapplied during meetings as part of the costs of litigation that did not serve the school’s benefit; nevertheless defendants numbered two through eleven held—although mistakenly—the belief that by pursuing that litigation they were protecting the rights of the boys who were receiving education at the school and therefore the litigation was in the institution’s interest. The Trial Court declined to issue a declaration that defendants one through eleven were invalidly appointed nor did it order their removal. Instead the Trial Court issued a decree removing defendants twelve through seventeen, who were trustees of the Muchhala Trust. The Court further ordered defendants twelve through seventeen to deliver to the Court the sums they had collected from the Muchhala trust property and prohibited them from receiving any future income from that property after the date of the decree. Defendants two through eleven were ordered to pay the amount of Rs 15,596‑5‑8, which the Court had found to have been misapplied by them. The Court stipulated that if this amount was not paid, the said defendants would be removed, a scheme would be drawn up, and a new trustee would be appointed to assume charge of and manage the Madrasai Hakimia & Coronation High School together with the properties endowed for its benefit. A Commissioner was directed to be appointed for the purpose of ascertaining the amount that had been paid by the managers of the Muchhala trust property to the trustees defendants twelve through seventeen and to determine the balance that remained in the hands of those defendants. The same Commissioner was also instructed to determine the sum spent by defendants two through eleven on religious education in accordance with the directions contained in the trust deed. The Commissioner found that the amount due from defendants two through eleven should be deposited by them in a recognized bank for the benefit of the school. After the Trial Court’s decree, the plaintiffs filed an appeal before the High Court of Judicature at Nagpur. Defendants twelve through seventeen also filed an appeal challenging the Trial Court’s order of their removal and the other reliefs granted against them. Defendants one, two, four, five, nine and ten subsequently filed cross‑objections, contesting the Trial Court’s finding of misapplication of the trust fund to the extent of Rs 15,596‑5‑8 and Rs 900/‑. The High Court dismissed both the appeals and the cross‑objections, thereby affirming the Trial Court’s decision in its entirety. Following the High Court’s judgment, two appeals were lodged before this Court—one by the plaintiffs and another by defendants twelve and fourteen through seventeen, the latter having been granted special leave. The appeal raised by defendants twelve and fourteen through seventeen was deemed readily disposable; their argument was that both the Trial Court and the High Court erred in issuing a decree against them because the plaintiffs had never sought such relief in the original suit. In the view of the Court this argument was correct, although it was noted that…

These five appellants – Sheikh Abdul Kayum, Seth Abdulabhai, Mulla Abdulla Bhai, Mulla Mohammed Bhai, Seth Hasanali and Sheikh Fida Ali – were joined in the suit as defendants. No relief was sought against any of these six persons, and the plaint did not contain any specific averments directed at them. In paragraph 26 of the plaint, the prayer sought a declaration that “defendants” were not validly appointed trustees, that the “defendants” should be removed from the management of the trust properties, and that the “defendants” should be ordered to render an account of their administration of those properties. Likewise, paragraph 20 used the term “defendants” without qualification, stating that it was absolutely necessary in the interest of the trust that the “defendants” were not properly appointed trustees and that the “defendants” were trustees de sontort. However, when the plaint is examined in its entirety, especially the wording in paragraph 19, it becomes evident that the plaintiffs were seeking relief only against defendant 1, the Hakimia Society, and defendants numbered 2 through 11, who are the members of that society. The allegations that the “defendants” were not validly appointed trustees and were trustees de sontort were made solely in relation to these eleven defendants. The breach‑of‑trust accusations were also limited to those eleven persons. Paragraph 10 clarifies the scope by stating: “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 sentence is followed by an enumeration of six specific grounds, each of which unmistakably refers only to the eleven named defendants. Applying ordinary rules of grammar and common sense, the word “defendants” in paragraphs 20 and 26 must therefore be read as referring exclusively to defendants numbered 1 through 11.

The lower courts erred in assuming that the plaintiffs had also sought relief against defendants 12 to 17. It was pointed out before this Court that the Muchhala trust lay outside the jurisdiction of the trial court and, even if any relief had been claimed against defendants 12 to 17, the trial court would not have possessed the legal competence to grant such relief. Because the plaint did not request any remedy against defendants 12 to 17, the decrees passed by the trial court and upheld by the high court against those defendants were illegal. In the two appeals now before this Court – one filed by the plaintiffs and the other by defendants 12 and 14 to 17 – the parties were represented by the Solicitor‑General. The Solicitor‑General conceded on behalf of the plaintiffs that the plaint contained no claim against defendants 12 to 17. Consequently, appeal number 406 of 1960, which is brought by the original defendants 12 and 14 to 17, must be allowed.

The appeal numbered 407 of 1960 was filed by the four plaintiffs. The first issue raised on their behalf by counsel for the plaintiffs was that the original trustees of the Burhanpur trust lacked legal authority to divest themselves of the property that the trust deed vested in them, or to vest that property in any society or its governing body, even if that society or governing body included some or all of the former trustees. In the present case, it was alleged in the plaint and reiterated before the Court on behalf of the appellants that the evidence would demonstrate that not all of the former trustees participated in the formation of the Hakimia Society and in the transfer of the property held by them to the society or its members. Assuming, for the sake of argument, that the act could be treated as having been carried out by the entire former body of trustees, counsel for the plaintiffs nevertheless argued that such an act had no legal effect and did not, in law, result in the Hakimia Society or its members becoming trustees in place of the former trustees. The Court agreed with that argument. In the Court’s view there can be no doubt that trustees are not empowered to transfer their duties, functions and powers to another group of persons and to create those persons as trustees in their stead unless the trust deed expressly authorises such a transfer or the beneficiaries as a whole consent. A person who is appointed a trustee may decline to accept the trust, but once he has accepted it he may not renounce his duties and liabilities except with the permission of a court, with the consent of the competent beneficiaries, or under a special power granted by the trust instrument. Nor may a trustee delegate his office or any of his functions except in limited circumstances. The rules that prohibit a trustee from renouncing the trust and from delegating his functions are set out in sections 46 and 47 of the Indian Trusts Act. Section 46 provides that a trustee who has accepted the trust cannot thereafter renounce it except (a) with the permission of a principal civil court of original jurisdiction, or (b) with the consent of a competent beneficiary, or (c) by virtue of a special power in the trust instrument. Section 47 states that a trustee cannot delegate his office or any of his duties to a co‑trustee or to a stranger unless (a) the instrument of trust provides for it, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) a competent beneficiary consents to the delegation. It is true that section 1 of the Indian Trusts Act declares that the provisions of the Act do not apply to public or private religious or charitable endowments; consequently those sections may not directly apply to the trust in question. However, those provisions embody the same principles that have been applied to all trusts everywhere. The principle underlying the rule against delegation, which is central to the present dispute, is that once a fiduciary relationship is created it should not be unilaterally terminated, because such termination would be contrary to the public interest. For that reason the law permits delegation of a trustee’s functions only in cases of necessity, with the beneficiary’s consent, or where the trust instrument itself authorises it, or where the delegation is part of the regular course of business, meaning the ordinary activities that a prudent businessperson would delegate in his own affairs. In the present matter the alleged act was not a limited delegation of certain functions but a complete delegation of all functions and powers, which amounts to an abdication of the trusteeship.

The Court observed that the provisions of the Indian Trusts Act concerning public or private religious or charitable endowments may not strictly apply to the trust that is the subject of the present dispute. Nevertheless, the Court explained that those statutory sections embody principles that have been applied to every trust in every jurisdiction. The rule against delegation, which is the focus of the present case, is straightforward: once a fiduciary relationship is created, society’s interest is served by preventing that relationship from being terminated unilaterally. Accordingly, the law forbids a trustee from delegating his functions except where there is a genuine necessity, where the beneficiary consents, or where the trust instrument itself authorises such delegation. Apart from delegation that occurs “in the regular course of business” – that is, the kinds of tasks that a prudent businessman would ordinarily delegate in his own affairs – delegation is not permitted. The Court found that the present situation did not involve delegation of isolated duties but rather the delegation of every function and every power of the trustees, which amounted to a complete abdication in favour of a new body of persons. The old trustees also attempted to divest themselves of all property that the settlor had vested in them and to transfer that property to another group. The Court stated that it is aware of no legal principle or authority that allows a trust to be abandoned in favour of another group of persons. Moreover, the trust deed itself contains no provision that contemplates or permits such an abdication or the replacement of the existing trustees by a new body. The Court therefore turned to clause 5 of the trust deed, which reads as follows: “5. All the aforesaid trustees shall 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 Court emphasized that the clause granting the power to appoint new trustees cannot, by any stretch of imagination, be read as authorising the substitution of the entire existing trustee body with a new body. That provision merely allows the existing trustees to add additional members to their number, not to relinquish their own responsibilities entirely.

In this case the Court observed that the provision allowing the old trustees to increase their numbers merely permitted the addition of new trustees to the existing body and did not empower the old trustees to be replaced entirely. The Court further held that the authority granted to the trustees to formulate rules and regulations for the efficient operation of the school could not be interpreted as a power to relinquish the trustees’ own management responsibilities or to transfer the property held under the trust deed to other individuals. Accordingly, the Court concluded that clause five of the trust deed did not give the trustees appointed by the deed any right to abdicate in favour of another group of persons, nor did it permit them to designate that other group as trustees in their stead. The Court also noted that there was no evidence that the beneficiary, namely the school, had consented to such an abdication. As a result, the Court found that the act of the original trustees in handing over the school’s management to the Hakimia Society and in transferring the school’s property to the members of the governing body of the Hakimia Society was illegal and void under the law. Consequently, the members of the Society or its governing body could not be regarded as trustees with respect to the properties covered by the Burhanpur trust. The Court remarked that this legal position was not seriously contested by counsel appearing on behalf of the respondents. However, counsel attempted to introduce a novel argument to support the lower courts’ decision. He argued that the trust deed dated September 1909 created a trust only over the properties owned by the six individuals who executed the deed, and that those properties were listed in clauses seven to twelve of the deed. According to this argument, the deed did not create a trust over any of the properties described in the plaintiff’s complaint that fell outside the categories enumerated in those clauses. Regarding clause five, which states that “All the movable and immovable properties connected with the said school shall come to vest in the trustees,” counsel contended that the six settlors who executed the September 1909 deed had not been shown to possess any title to the movable and immovable properties associated with the school. He further maintained that the school was merely a beneficiary of the trust and that the school’s properties did not become trust property administered by the trustees simply because the settlors had created a trust concerning other assets. Counsel asserted that, therefore, no property other than those specifically mentioned in clauses seven to twelve of the deed had been vested in the trustees appointed by the deed, nor had the trustees divested themselves of such property. He concluded that only insofar as the defendants numbered one to eleven claimed to be trustees of the properties listed in clauses seven to twelve could they be deemed trustees of those particular assets.

It was submitted that the respondents could not be regarded as validly appointed trustees. Counsel for the petitioners, Mr. Sen, argued that his clients did not claim to be trustees of the properties listed in clauses 7 to 12 of the trust deed. He further contended that, to the extent that the respondents managed those particular properties, the Court might issue an order removing them from such management and could require them to render accounts solely with respect to those properties. Regarding other assets, which Mr. Sen described as belonging to the beneficiary school, he maintained that no order could properly be made because those assets lay outside the Burhanpur Trust that was created by the trust deed of September 1909.

The argument, while initially appearing attractive and plausible, was not the position that the respondents had taken in the lower courts. The respondents never sought to argue that some of the assets identified in the plaint as trust property of the Burhanpur Trust were not covered by the deed. Instead, they consistently maintained that they had been validly appointed trustees of those assets in accordance with the September 1909 trust deed. Their case was encapsulated in paragraph 4 of their written statement, which read in substance: “It is admitted that on or about 19 March 1917, seven persons signed a memorandum of association and registered themselves as members of the Society under Act XXI of 1860. The defendants state that all these persons were the trustees and were in management of the trust properties under the trust deed dated 15‑9‑1909, having been appointed either under that trust or under the rules framed thereunder, and that the properties of the institution vested in them and continued to vest after the registration of the Society.”

This passage unequivocally accepts the plaintiff’s claim that every item listed in Schedule M annexed to the plaint falls within the trust created by the deed and asserts that defendants 2 to 11 are duly appointed trustees of that trust. The judgments of both the trial court and the High Court further demonstrate that, before those courts, the defendants consistently claimed to be trustees appointed validly under the September 1909 deed for all the properties described as trust property in the plaint. No pleading, whether in the written statement, at trial, or during oral arguments, suggested that the settlors of the September 1909 deed were incapable of creating a trust over “all the movable and immovable properties connected with the said school” because those properties allegedly did not belong to them. On the contrary, the respondents have continuously claimed throughout the litigation that they became trustees not only of the assets enumerated in clauses 7 to 12 of the deed but also of every other property of the school, deriving their authority from the very same trust deed.

Mr. Sen’s argument that certain items described in the plaint as trust property under the September 15, 1909 deed were not actually covered by that deed was rejected. The Court found that the defendants numbered one through eleven had not been validly appointed as trustees of the trust property identified in the plaint. Consequently, their possession and management of those assets could be characterised only as the conduct of a trustee de son tort, and they were therefore required to render an account for the entire period during which they exercised such management. Because they possessed no legal right to continue holding the trust property, having been improperly appointed, the plaintiffs were entitled to a decree ordering the removal of defendants one to eleven from the management of the properties. The learned Solicitor‑General contested the correctness of the lower courts’ findings that the same defendants had misapplied trust funds to the extent of Rs 15,596‑5‑8 and Rs 9,001, and that the admission of students outside the Daudi Bohra community was inconsistent with the trust’s object. The Court considered it unnecessary to revisit those matters, observing that even if the lower courts’ findings were correct, the plaintiffs would still be entitled to the reliefs sought in the suit. It was noted that an amount of approximately Rs 15,000 and a small surplus had already been paid by defendants two to eleven pursuant to the trial‑court decree, and that the Solicitor‑General had assured that the interests of non‑Bohra students would be protected in the school. Accordingly, the appeal was allowed and it was declared that defendants one to eleven were not validly appointed trustees of the trust properties listed in Schedule M annexed to the plaint. The defendants were ordered to be removed from management of those properties and to furnish a full account of their administration. The trial court was directed to issue the necessary procedures for rendering such accounts, taking into account a credit for the amount already paid by defendants two to eleven. The plaintiffs‑appellants conceded that framing a scheme for the trust’s administration was not presently required, and the Court agreed that no scheme was necessary at this stage. However, the Court emphasized that new trustees must be appointed for the trust’s administration because, of the original eighteen trustees, all but one were deceased, and the sole surviving trustee was acknowledged to be too advanced in age to manage the trust effectively and had, for many years, performed no trustee functions. In view of these facts, the Court directed that suitable persons be appointed as new trustees.

The Court directed that the Trial Court appoint new trustees after it had provided a full opportunity to the plaintiffs and to other responsible members of the Daudi Bohra Community to present any recommendations or objections they might have concerning the appointment. This opportunity was intended to allow all interested parties to voice their views before the selection of the new trustees was finalized. In the same order, the Court held that both appeals filed by the plaintiffs were to be allowed. As a result of allowing the appeals, the Court ordered that the plaintiffs should be awarded their costs not only in the present appeal but also in the earlier proceedings before the Trial Court and the High Court. The responsibility for paying those costs was placed on defendants numbered one through eleven. Further, the Court directed that only one set of hearing fees should be payable for the two appeals together, thereby avoiding the imposition of separate fees for each appeal. In sum, the Court affirmed that the appeals were allowed, that the plaintiffs were entitled to costs against defendants 1 to 11 in all relevant proceedings, and that a single hearing fee would apply to both appeals.