Das Gupta, J.
1. This unfortunate litigation over a school which was started sixty yearsago is one of the unhappy consequences of a feud that raised it ugly head inDaudi Bohra Community many years ago. The School was started at Burhanpur bycertain members of the Daudi Bohra Community of Burhanpur in the year 1902. Itwas named Madrasai Faize Hakimia and its object was to impart religious andsecular education to boys of the Daudi Bohra Community. Funds were collectedfor the purpose of the school from the members of that community for themaintenance of the school. In the year 1908 English classes were added to theschool and in 1911 it was raised to the status of a High School under the name'Madrasai Hakimia and Coronation High School'. Some time before thison May 24, 1909 one Daudi Bohra of Surat of the name of Abdul Hussain AbdullaliFaizullabhai Muchhala made a waqf of certain properties in Bombay for thebenefit and advantage of this school at Burhanpur. For the management of thistrust he appointed as trustees 12 gentlemen whom he mentioned as persons whohad already been appointed trustees of the school. Only a few months after thisanother trust came into existence for the benefit of the same school, by a deedexecuted by six persons, all Daudi Bohras and all the belonging to Burhanpurdescribing themselves as managers of the school. They created by the deed'Waqf and trust of their properties' which were mentioned in detailin the body of the deed. Eighty persons, including themselves were named as thetrustees. It is further stated by the executants of the deeds that all movableand immovable properties connected with the school shall vest in thesetrustees. It is provided in the deed that the trustees shall be entitled togovern, manage and administer the affairs of the school and shall have thepower of framing rules and regulations from time to time for the benefit andefficient running of the school; and also have the power to appoint newtrustees from time to time in accordance with such rules and regulations. Thesetrustees managed the school and also the properties belonging to the schoolincluding the properties of which waqf was made in its favour by the trust deedof September 15, 1909 without any trouble till March 1917. In the course ofsuch management some of the original trust properties were converted into newproperties by the trustees with the help of additional donations received frommembers of the Daudi Bohra Community Trouble started in 1917 when some membersof the Community started declaring that Mullaji Taher Saifuddin Saheb who,according to the main body of the Community was the Dai-ul-Mutalaq was not aDai-ul-Mutalaq. About the same time four out of the 18 who were appointed bythe trust deed of September 15, 1909 joined three other members of the DaudiBohra Community of Burhanpur to form a society by the name of 'MadrasaiHakimia & Coronation Society', the main purpose of which was to runthe Hakimia & Coronation High and Primary Schools at Burhanpur. Among otherobjects were mentioned the development of branches of the school at differentplaces; opening library or libraries at suitable centers; conducting newspaperor newspapers; editing and compiling and publishing books. In the Memorandum ofAssociation it was provided that 12 persons named therein would form thegoverning body to whom the management of the affairs of the society shall beentrusted. It was further provided that properties of each and everydescription acquired for a given to Madrasai Hakimia & Coronation HighSchool shall be vested in this governing body. The 10 persons who have beenimpleaded and defendants 2 to 11 are members of the governing body of theSociety. From the time they assumed the management of the Madrasai Hakimia& Coronation High School as members of the Society they have beenadministering the properties of which waqf was made in favour of the school bythe six gentlemen who executed the trust deed of September 15, 1909.
2. The suit out of which these appeals have arisen was started under s. 92of the Code of Civil Procedure by 4 Daudi Bohra muslims who claimed to beinterested in the trust properties set out in the Schedule to the point asmembers of the Daudi Bohra Community. Their main contention in the plaint isthat the first defendant, the Hakimia Society and the 10 defendants, defendantsNos. 2 to 11 were not validly appointed trustees in respect of these trustproperties. They prayed in this suit for a declaration that these defendantsare not validly appointed trustees; for their removal from the management ofthese properties and for an order on them to render accounts on theiradministration of these properties. There was also a prayer for the appointmentof proper and fit persons for the management of these properties in accordancewith the provisions of the trust deed of September 15, 1909, and for theframing of a scheme for the administration of the trust - to which we shalllatter refer as the Burhanpur Trust - if it was necessary. The ground on whichthe plaint claimed that these defendants were not validly appointed trusteeswas that they had not been appointed as such in accordance with the terms andconditions of the trust deed of September 15, 1909. According to the plaint,whatever entrustment took place by the constitution of the Hakimia Society wasinvalid in law as the persons who got this registered as the Hakimia society had no right in law to best these properties in the Society or themembers of the governing body of that Society.
3. As further ground for removal of these defendants from the management ofthese properties the plaint set out a number of acts said to have beencommitted by them which it was alleged amounted to a breach of trust. One suchact was the defendants' action in throwing open the Madrasai Hakimia &Coronation; High School to students other than the Daudi Bohra Community.
4. The trustees of the trust created by Mr. Muchhala were impleaded asdefendants 12 to 17. No relief was however asked for against defendants 12 to17.
5. The main defences of defendants 1 to 11 were that they had been validlyappointed trustees of the properties mentioned in the plaint under the trustdeed of September 1909 in accordance with the rules framed under the trustdeed. They claimed that the properties of the institution vested in them andcontinued to remain vested after the registration of the Society. Theallegation of breach of trust was denied. In that connection it was pleadedthat the admission of non-Bohra students did not amount to a breach of trust. Alarge number of issues were framed; but it would be unnecessary to considermost of these for the decision of these appeals. The principal question incontroversy was whether defendants 1 to 11 were validly appointed trustees ofthe properties claimed as trust properties in the plaint. The second questionwas as regards the allegation of breach of trust. The first question wasembodied in Issue No. 9 thus : 'Are defendants 2 to 11 duly appointedtrustees under the trust deed dated 15-9-1909 ?' The Trial Court answeredthis question in the affirmative. Relying on the provisions of Para. 6 of thetrust deed (of September 1909) for the framing of rules and regulations formanagement of the school and properties connected with the school, the Courtheld that the persons who were already trustees under the trust-deed 'hadthe power by a resolution' passed by the majority of the trustees at theirmeeting to (i) appoint new trustees, (ii) to appoint a governing body ormanaging committee to take charge of the trust properties, (iii) to get thebody registered and (iv) to frame rules and regulations such as were embodiedin the Memorandum of Association of the Hakimia Society. It pointed out that amajority of the trustees present at a meeting had passed a resolution regardingregistration of the society and regarding the rules and regulations embodied inthe Memorandum of Association. This registration in the opinion of the Courtand the formation of the Committee of its management for the registered societywas 'one of the acts done by the trustees in the course of themanagement' and was in fact an act to secure more efficient management ofthe trust property and the trustees had the power to do it. The Court furtherheld that while it was true that the property which existed at the time theresolution to register the society was passed was then vested in the trusteesthen existing, there was nothing to prevent those trustees 'who under theEx. P-3 had the power to frame rules and regulations for the management of theschool and the properties connected with it, from providing for the vesting ofthe property in the members of the governing body by a rule framed by them at ameeting of the trustees held according to the terms of Ex. P-3.' Accordingto the Court 'the trustees had the power to vest the existing property ina governing body consisting of only some of them by a resolution passed at a meetingof trustees.' Accordingly the Court held that defendants 2 to 11 who weremembers of the governing body of the Hakimia Society must be held to be validlyappointed trustees according to the terms of the trust deed of September 15,1909, Ex. P-3 in respect of all the properties endowed for the benefit of theschool with the exception of Muchhala trust property.
6. The question of breach of trust by defendants 2 to 11 was embodied inIssue No. 6 in these words' (a) Did the governing body of the School usethe trust properties (mentioned in the plaintiffs' list M) or any incometherefrom for fighting out litigation in 1925 (C.S. No. 32 of 1925)
(b) Did they misappropriate thetrust property or income therefrom
(c) Was the litigation for thebenefit of the school' Another part of the allegation of breach of trustfinds place in Issue No. 11(c) thus : 'Is the admission of the studentswho do not belong to the Daudi Bohra Community inconsistent with the object ofthe trust' The Trial Court answered questions 6(a) and (c) in thenegative i.e., it found that the governing body did use trust properties orincome therefrom for fighting out litigation in C.S. No. 32 of 1925 and thatthe litigation was not for the benefit of the school. Yet the Court answeredIssue No. 6(c) in the negative, finding that such expenditure did not amount tomisappropriation. The basis of this last finding is that though some part ofthe trust fund was misapplied in meetings part of the expenses of litigationwhich was not for the benefit of the school the defendants 2 to 11 believed,though wrongly, that by this litigation they would be safeguarding the rightsof boys who were receiving education in the school and so the litigation was inthe interests of the institution.
7. The Trial Court refused to make a declaration that defendants 1 to 11were not validly appointed or for their removal. It however gave a decree forthe removal of defendants 12 to 17, the trustees of the Muchhala Trust.Defendants 12 to 17 were further ordered to deposit into the Court the amountcollected by them from the Muchhala trust property and were forbidden torecover any income from that property after the date of the decree.
8. The defendants 2 to 11 were ordered to deposit the sum of Rs. 15,596-5-8which they were found to have misapplied. It was ordered that if this amountwas not paid by them they shall be removed and a scheme would be framed and anew trustee would be appointed to take charge of and manage the MadrasaiHakimia & Coronation High School and the properties endowed for itsbenefit. A Commissioner was directed to be appointed to ascertain the amountpaid by the managers of the Muchhala trust property to the trustees defendants12 to 17 and to determine the amount in the hands of these defendants. The sameCommissioner was also directed to determine the amount spent by defendants 2 to11 on religious education in accordance with the directions of the trust deed.The amount was found due to be paid to defendants 2 to 11 to be then deposited,by them in a recognised bank for the benefit to the school.
9. Against this decree of the Trial Court the plaintiffs preferred an appealto the High Court of Judicature at Nagpur. Another appeal was preferred bydefendants 12 to 17 against the Trial Court's judgment in so far as it directedtheir removal and gave other reliefs against them. Defendants 1, 2, 4, 5, 9 and10 filed cross-objections in which they challenged the correctness of the TrialCourt's finding that there had been misapplication of the trust fund to theextent of Rs. 15,596-5-8 and Rs. 900/-. The High Court dismissed both theappeals as also the cross-objections and affirmed the decision of the TrialCourt in full.
10. Against the High Court's decision two appeals have been filed before thisCourt - one by the plaintiffs and the other by defendants 12, and 14 to 17 byspecial leave granted by this Court.
11. The appeal by defendants 12, and 14 to 17 can be easily disposed of.Their contention is that the Trial Court as also the High Court erred ingranting a decree against them when the plaintiffs in the suit had not askedfor any such relief. In our opinion, this contention must be accepted ascorrect. While it is true that these five appellants, Sheikh Abdul Kayum, SethAbdulabhai, Mulla Abdulla Bhai, Mulla Mohammed Bhai and Seth Hasanali alongwith Sheikh Fida Ali were impleaded as defendants no relief was sought againstthem nor was any averments made for that purpose. The prayers in para. 26 askedfor a declaration that 'defendants' are not validly appointedtrustees, that 'defendants' may be removed from the management of theproperties and that the 'defendants' may be ordered to render anaccount of their administration of the trust properties. In para. 20 also theword 'defendants' was used without any qualification when it was saidthat it was absolutely necessary in the interest of the said trust that the'defendants' are not properly appointed trustees of the said trustand that the 'defendants' are trustees de sontort.
12. But when the plaint is read as a whole, especially the statements inpara. 19 it becomes quite clear that the plaintiffs in the present suit areseeking relief only against defendant 1, Hakimia Society and the defendantsNos. 2 and 11, the members of the Society. The averments on which the case thatdefendants are not validly appointed trustees and are trustees de sontort aremade in respect only of these 11 defendants. The allegations of breach of trustare also made only against these defendants. Paragraph 10 puts the matter inclear perspective in these words : 'The plaintiffs say that defendant No.1 and defendants 2 to 11 who are the present members of defendant No. 1 Societyare liable to be removed on the following grounds'. This statement is followedby an enumeration of six grounds all of which clearly and unmistakably referonly to these 11 defendants. Common sense and ordinary rules of grammartherefore compel us to read the words 'defendants' in Paras 20 and 26to mean only defendants Nos. 1 to 11. We have no doubt therefore that thecourts below misdirected themselves in thinking that the plaintiffs had askedfor any relief as against defendants 12 to 17.
13. It was stated before us that the Muchhala trust was outside thejurisdiction of the Trial Court and that even if any relief had been asked foragainst defendants 12 to 17 the Trial Court would not have been competent inlaw to give such relief. It is unnecessary for us to consider that aspect ofthe matter as it is abundantly clear that the plaintiffs did not ask for anyrelief against defendants 12 to 17 and for that reason alone the courts belowacted illegally in passing any decree as against those defendants. In the twoappeals filed respectively by the plaintiffs and defendants 12, and 14 to 17 theappellants are represented by the learned Solicitor-General and it is concededby him for the plaintiffs that the plaint did not claim any relief againstdefts. 12 to 17.
14. The appeal No. 406 of 1960 which is by the original defendants 12 &14 to 17 must therefore be allowed.
15. The appeal which has been numbered as 407 of 1960 is by the fourplaintiffs. The first contention raised on their behalf by the learnedSolicitor-General is that the original trustees of the Burhanpur trust had nopower in law to divest themselves of the property vested in them by the trustdeed or to vest these properties in any society or its governing body, eventhough the society or the governing body might include some or all of the oldtrustees. In the present case it was contended in the plaint and urged beforeus on behalf of the appellants that the evidence would show that all the oldtrustees had not joined in the act of formation of the Hakimia Society andtransferring the property vested in them to the society or its members.Assuming, however, for the purpose of the present question that what was doneshould be deemed in law to be the act of the entire old body of the trustees,even so, the learned Counsel argues, the act has no legal validity and did notproduce in law the consequence of constituting the Hakimia Society or itsmembers trustees in place of the old trustees. In our judgment, this contentionmust succeed.
16. There cannot, in our opinion, be any doubt about the correctness of thelegal position that trustees cannot transfer their duties, functions and powersto some other body of men and create them trustees in their own place unlessthis is clearly permitted by the trust deed, or agreed to by the entire body ofbeneficiaries. A person who is appointed a trustee is not bound to accept thetrust, but having once entered upon the trust he cannot renounce the duties andliabilities except with the permission of the Court or with the consent of thebeneficiaries or by the authority of the trust deed itself. Nor can a trusteedelegate his office or any of his functions except in some specified cases. Therules against renunciation of the trust by a trustee and against delegation ofhis functions by a trustee are embodied, in respect of trusts to which theIndian Trusts Act applies, in ss. 46 and 47 of that Act. These sections runthus :-
'46, A trustee who hasaccepted the trust cannot afterwards renounce it except (a) with the permissionof a principal Civil Court of Original Jurisdiction, or (b) if the beneficiaryis competent to contract, with his consent, or (c) by virtue of a special powerin the instrument of trust.
47. A trustee cannot delegate hisoffice or any of his duties either to a co-trustee or to a stranger, unless (a)the instrument of trust so provides, or (b) the delegation is in the regularcourse of business, or (c) the delegation is necessary, or (d) the beneficiary,being competent to contract, consents to the delegation.'
17. It is true that s. 1 of the Indian Trusts Act makes provisions of theAct inapplicable to public or private religious or charitable endowments; andso, these sections may not in terms apply to the trust now in question. Thesesections however embody nothing more or less than the principles which havebeen applied to all trusts in all countries. The principle of the rule againstdelegation with which we are concerned in the present case, is clear; afiduciary relationship having been created, it is against the interests ofsociety in general that such relationship should be allowed to be terminatedunlilaterally. That is why the law does not permit delegation by a trustee ofhis functions, except in cases of necessity or with the consent of thebeneficiary or the authority of the trust deed itself; apart from delegation'in the regular course of business', that is, all such functionswhich a prudent man of business would ordinarily delegate in connection withhis own affairs.
18. What we have got in the present case is not delegation of some functionsonly, but delegation of all functions and of all powers and is nothing short ofabdication in favour of a new body of men. Necessarily there is also theattempt by the old trustees to divest themselves of all properties vested inthem by the settlor and vesting them in another body of persons. We know of noprinciple of law and of no authority which permits such abdication of trust infavour of another body of persons.
19. In the deed itself there is nothing which contemplates or allows such anabdication and the substitution of the old trustees by a new body of trustees.It is necessary in this connection to consider the terms of clause 5 of thetrust deed. That clause is in these words :-
'5. All the aforesaid trustees shall be entitled togovern, manage and administer the affair of the school above. These trusteesshall have the power of framing rules and regulations from time to time for thebenefit and the efficient running of the school, and they shall have the powerto appoint new trustees from time to time in accordance with the rules andregulations of behalf hereof. All the movable and immovable propertiesconnected with the said school shall come to vest in the trustees and theyshall be managed and administered in accordance with the rules and regulationsframed on that behalf. The trustees for the time being shall have the power toalter and cancel the rules and regulations and to frame new ones insteadthereof at the time when necessary. The treasurer shall have the power to openthe cash account in some reliable bank and he shall always arrange for cashdealings to the benefit of the said school in accordance with the holy law ofIslam. (Shariat).'
20. The provisions for the appointment of new trustees cannot by any stretchof imagination be held to mean the substitution of the old body of trustees bya new body. That provision only permits the old trustees to add to theirnumber. Nor does the power to frame rules and regulations for the benefit andefficient running of the school authorise the trustees to give up themanagement of the school themselves or to divest themselves of the propertiesentrusted to them by the trust deed and vest them in other persons. We aresatisfied therefore that clause 5 of the trust deed does not in any mannerauthorise that trustees appointed by deed to abdicat in favour of another bodyof persons or to constitute that body as trustees in their own place.
21. There is no question here also of the beneficiary, i.e., the schoolconsenting to such abdication. There is therefore no escape from the conclusionthat the act of the trustees, who were appointed by the trust deed, in handingover the management of the school to the Hakimia Society and the properties ofthe school to the members of the governing body of the Hakima Society wasillegal and void in law. The members of the Society or the members of thegoverning body did not therefore become trustees in respect of the propertieswhich are covered by the Burhanpur trust.
22. This position in law is not seriously disputed by Mr. Sen, who appearedbefore us on behalf of the respondents. He has however taken before us a novalline for supporting the decision of the courts below. He has tried to persuadeus that the trust deed of September 1909 creates a trust only in respect of theproperties that belonged to the six persons who executed the trust deed. Theseproperties have been set out in cls. 7 to 12 of the deed. This deed thereforehas not created any trust in respect of such of the properties mentioned in theplaint which do not fall within the properties mentioned in these clauses ofthe trust deed. As regards clause 5 of the trust deed which has been set outabove and which states that 'All the movable and immovable propertiesconnected with the said school shall come to vest in the trustees,' thelearned Counsel states that the six settlors who executed this trust deed ofSeptember 1909 have not been shown to have had any title to these movable andimmovable properties connected with the school. The school, argues the learnedCounsel, is merely a beneficiary of the trust and the properties of the schooldo not become trust properties entrusted to these trustees merely because thesettlors have created a trust in respect of other properties. There is noquestion therefore of any property - other than the properties mentioned inParas. 7 to 12 of the deed - having deed vested in the trustees appointed bythe deed, or their divesting themselves of the same. It is only in so far asthe defendants 1 to 11 claim to be the trustees of the properties mentioned incls. 7 to 12 of this deed that they can be considered to be not validlyappointed trustees. Mr. Sen submits that his clients do not claim to betrustees is respect of these properties, viz., those which are mentioned incls. 7 to 12 of the deed. In so far as they manage these properties an ordermay be made against them removing them from the management of these and theymay be asked to render accounts in respect of these properties, only. Inrespect of other properties which according to Mr. Sen are the propertiesbelonging to the beneficiary school, however, no order could properly be made,as they are outside the Burhanpur trust that came in to existence by the trustdeed of September 1909.
23. The argument appears attractive at first sight and even plausible.Unfortunately, however, for the respondents, this case which their Counsel nowseeks to make was never their case in the courts below. Far from saying thatsome of the properties mentioned in the plaint as trust properties of theBurhanpur trust are not in fact covered by the trust deed, these respondentshave all along made the definite case that they were validly appointed trusteesof those properties in accordance with the trust deed of September, 1909. Theircase in this matter may best be described in the words used in Para. 4 of thewritten statement thus :-
'It is admitted that on or about 19th March, 1917,seven persons signed a memorandum of Association and registered themselves asmembers of the Society under Act XXI of 1860. Defendant says that all thesepersons were the trustees and in the management of be trust properties undertrust deed dated 15-9-1909 and were either appointed under that trust or underthe rules framed thereunder, and in whom the properties of the institutionvested and the same continued to be vested after the registration of theSociety.'
24. This paragraph unambiguously accepts the plaintiffs' case that all theproperties specified in the Schedule M attached to the plaint are propertiescovered by the trust in question and it pleads that defendants 2 to 11 arevalidly appointed trustees of the said trust. The Judgment of the Trial Courtand the High Court also clearly show that before them, these defendants claimedto be trustees - validly appointed in accordance with the trust deed ofSeptember 1909 - of all the properties that were mentioned as trust propertiesof that deed in the plaint. Nothing appears to have been pleaded either in thewritten statement or at the trial or during the arguments that the settlors ofthis deed of September 1909 could not create a trust in respect of 'allthe movable and immovable properties connected with the said school', asthose properties did not belong to them. On the contrary, the respondentsclaimed all along to have become trustees in respect of not only of theproperties mentioned in cls. 7 to 12 of the deed but also of all otherproperties of the school, on the strength of this very trust deed. Mr. Sen'scontention that some items of the properties mentioned in the plaint as trustproperties covered by the trust deed of September 15, 1909 were not so covered,cannot therefore be accepted.
25. We find it established therefore that defendants 1 to 11 were notvalidly appointed trustees in respect of the trust properties mentioned in theplaint. Their possession and management of these properties must therefore beheld to be only in the character of trustee de sontort. They are liabletherefore to account for their entire period of management.
26. From the very fact that they have no legal right to remain in possessionof the trust properties, not having been validly appointed as trustees, it isequally clear that the plaintiffs are entitled to a decree that thosedefendants 1 to 11 be removed from the management of the properties.
27. The learned Solicitor-General challenged the correctness of the findingsof the courts below that these defendants (defendants 1 to 11) did not by theirmisapplication of trust funds to the extent of Rs. 15,596-5-8 and Rs. 900/-commit misappropriation and also that the admission of students who did notbelong to the Daudi Bohra Community was not inconsistent with the object of thetrust. We think it unnecessary however to consider these matters inasmuch aseven if these findings of the courts below are correct the plaintiffs areentitled to the reliefs they have asked for in the this suit. Besides theamount of Rs. 15,000/- and odd has been already paid by defendants 2 to 11under the decree of the Trial Courts. It is necessary to mention the fact thatan assurance was given to by the learned Solicitor-General that in any case theinterest of the non-Bohra students will be safeguarded in this school.
28. Accordingly, we allow the appeal and order that it be decided that thedefendants 1 to 11 are not validly appointed trustees in respect of the trustproperties mentioned in the list M annexed to the plaint; that the defendantsbe removed from the management of these properties and they be ordered torender an account of their administration of these properties. Necessarydirections for the rendering of accounts will be made by the Trial Court and indoing so, credit will be given to defendants 2 to 11 of Rs. 15,000/- and oddalready paid by them. The plaintiffs-appellants admit that it is not necessaryto fram any scheme for the administration of the trust and we agree that thisis not necessary - at least for the present. It is necessary however that newtrustees be appointed for the administration of the trust. Of the original 18trustees all except one are dead and sole survivor is admittedly too old tocarry on the administration successfully. The very fact that for many years hehas not discharged any functions as a trustee also makes it necessary that newtrustees should be appointed. We therefore direct that suitable persons beappointed by the Trial Court as new trustees after giving an opportunity to theplaintiffs and other responsible members of the Daudi Bohra Community to placetheir recommendations and objections in this matter.
29. Both the appeals are accordingly allowed. The plaintiffs will get theircosts here and also in the Trial Court and the High Court from defendants 1 to11. There will be one set of hearing fee for the two appeals.
30. Appeals allowed.