# SHEIKH ABDUL. KA YUM v. MULLA ALIBHAI - **Citation:** [1963] 3 S.C.R. 623 - **Court:** Supreme Court of India - **Decided:** 1963 - **Bench:** ·. B. Gajendragadkar, K. C. DAS GuPTA - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheikh-abdul-ka-yum-v-mulla-alibhai-2651 - **Pages:** 19 ## Headnote Trust-Properties vested in trustees-Trustees creating new body-,-Entrustment qf magement and properties to new body -Legality of-Abrayed in ~his suit for a declara· tion that these defendants are not vaildly appointed trustees ; for their removal frum the managemer1t of,these properties and for an order on them to render accounts on their administration of tuese properties'. 'l'here was also a prayer for the appointment of proper and fit persons for the management of these properties ii~ accordance with the provisions of the trust deed ot September 15, 1909, and for the framicig of a scheme for the administration of the trust-to which we shall latter refer as the Burha.npur Trust-if it was necessary. The ground on whioh the μlaint daimed that these defendants were not validly appointed trustees was that they had not been appointed as such in accordance with the terms and conditions of the trust deed of September 15, 1909 .. According to the plaint, whatever entrustment took place by the constitution of the Hakimia Society was invalid in law as the persons who got this registered as the Hakimia Society had no right in law to vest these properties in the Sooiety or the members of the governing body of that Society. As further ground for removal of these defendants from the management. of these properties the plaint set out a number of acts said to have been committed by them which it was alleged amounted to a breach of trust. One suoh act was the defendants' action in throwing open the Madrasai Hakimia & Coronation High School to 13t~dents other than the Daudi Bohra Comm,ynity, 1962 '. ...._,...... Sheikh Abdul Kayum · . V• Mulla -Alibha/ ---, Das Gupta J. 1861 Shiikh Abdul lr'!!"W, . v. M ulla . AliQh9i 628 .SUPREME COURT REPORTS [1963] The trustees of the trust created by Mr. Mucbhala were impleaded as defendants 12 to 17. · No relief was however asked for . against defendants 12 to 17. The main defences of defendants 1 to 11 were that they had J;>een validly appointed trustees of the properties mentioned in the plaint under the · trust deed of September 1909 in accordance with the rules framed under 'the trust deed. They claimed that the properties of the institution. vested in them and continued to remain vested after the registration of the Society. The allegation of breach of trust was denied. In that connection it was . pleaded that the admission of non-Bohra students did not amount t,o a breach of trust. A large number of issues were framed ; but it would be unnecessary to consider most of these for the decision of these appeals. The principal question in controversy was whether defendants 1 to 11 were validly appointed trustees of the properties claimed as trust properties in the plaint. The second question was as regards the allegation of breach of trust. The first question was embodied in Issue No. 9 thus : "Are defendants 2 to 11 duly appointed truitees under the trust, deed dated 15-9.1909 ?" The Trial Court answered this question in the affirmative. Relying on the 'provisions of Para. 6 of the trust deed (of September 1909) for the framing of rules . and regulations for management of the school and properties connected with the school, the Court held that the persons who were already trustee& under the trust-deed "had the power by a resolution" passed by the majority ofthe trustees at their meeting to (i} appoint new trustees, (ii) to appoiat a governing body or managing committee to t~ke charge of the trust i;iroperties, (iii) to get the hotly registered and (iv) to frame rules and regulatii>ns 1uoh as were embodied in the Memorandum of A.ssociation of the lJakim~a Society. It pointed ou~ · 3S.o.:R. SUPREME COURT REPORTS 62~ ~~at a majority of the trustees present at a meeting ~ad passed a resolution. regarding registration of th• society and regarding the rules and regulations ••bodied in the Memorandum of Association. This registration in the opinion of the Court and the formation of the Committee of its management· for the registered society was "one of the acts done by the trustees in the course of the management" and was in fa.ct an act to secure more effieient ·management of the trust property and the trustees had the power to do it. The Court further held that while it was true that the property which existed at the time the resolution to register the society wAs passed was then vested in the trustees then existing, there was nothing to prevent. those trustees "who under the Ex. P-3 had the power to frame rules and regula.tions for the management of · tke school and the properties connected with it, · from providing for the vesting of the. property in the members of the governing body by a rule framed by them at a meeting of the trustees held acco,rding to the terms of Ex. P-3." According to the Co1,1rt "the trustees had the power to vest the existing proper.ty in a governing . body eonsisting of only some of them by a resolution passed at a meeting of ~rustees." Accordingly the Court held that defendants 2 to 11 who were mem· bers of the governing body of the Hakimia. Society must be held to be validly appointed trustees a.ccor~ ding 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 the school with the exception of Muchha.la. trust property. '!'he question of breach of trust by defendants 2 to 11 was embodied in Issue No. 6 in these words "(a) Did the governing· body of the School use the tl'W!t properties (mentioned in the plaintiffs' list M) or any income therefrom for fighting out litigation in 1925 (C. S. No. ·32 of 1925)? i»•~ SJiJ!JcA ·AMl lt'c;um "· ilull• ~ . lll:Hiiijla J. . 1961 -·- sfl.ikh. Abd,;Z Ka_,... .. . : v •.. '.,. 'MuUiJ Alibiiai vailJlipla J:· 630 SUPREME CUuRT REPORTS (1963). ( b) Did they misappropriate the trust propeiity or income therefrom? ; ' ( c) Wa.s the litigation for the benefit of th.e school''? Another part of the allegation of breach '<).f trust finds place in Issue No. 11 (c) thus: "Is the admission of the students who do not belong to the Daudi Bohra Community inconsistent with the object of the trust"? The Trial Court answered questions 6 (a) and (c) in the negativei. e,, it found that the governing body did us.e trust properties or income therefrom for fighting out litigation in C. S. No. a2 of 1925 and that the litigation was not for the benefit of the sohool. Yet the Court answered Issue No. 6 ( c) in the negative, finding that such expenditure did not amount to misappropriation. The basis of thi' last finding is that though some part of the trust fund was misapplied in meetings part of the expensrs of litigation which was not for the benefit of the school the defendants 2 to 11 believed, though wrongly, that by this litigation the_y would be safeguarding the rights of boys who were receiving education in the school and so the litigation was in the interests of the institution. The Trial Court-refused to make a declaration that defendants 1 tq 11 were Iiot validly appointed or for their removal. It however gave a decree for the 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 amount collected by them from the Muchhafa trust property and were forbidden to recover any income from that property after the date of the decree. The defendants 2 to 11 were ordered to deposit· the sum of Rs. 15,596-5-8 which they were found to have misapplied. It was ordered that if this amount ~ was not paid by them they shall be removed and a _,. "' 3 s.c.n. SUPREME COURT REPORTS 631 scheme would be framed and a new trustee would be appointed to take charge of and manage the Madrasai Hakimia & Coronation High School and the properties endowed for its benefit. A Commissioner was directed to be appointed to ascei:tain the amount paid by the managers of the Muchhala trust property to the trustees · defendants 12 to 17 and to determine·the amount in the hands of these defendants. The same Commissioner was also directed to detemine the amount spent by defendants 2 to 11 on religious education in accordance with the, directions of the trust deed. The amount was found due to be pa.id to defendants 2 to 11 to be then deposited, by them in a recognised bank for the benefit to the school. Against this decree of the Trial Court the plaintiffs preferred an appeal to .the High Court of Judicature.at Nagpur. Another appeal was preferrred by defendants 12 to l 7 against the Trial Court's judgment in so far as it directed their removal and gave other reliefs against t.hem. Defendants 1,2,4,5, 9 and 10 filed cross-objections in which they challenged the correctness of the Trial Court's finding that there had been mi.sapplioatioo of the trust fund to the extent of Rs. 15,596-5-8 and Rs.900/-. The High Court dismissed both the appeals as also the orossobjeotions and affirmed the decision of the Trial Court in full. Against the High Court's decision two appeals have been filed before this Court-- one by the plain· tiffs and the other by defendants 12, and 14 to 17 by special leave granted by this Court. The appeal by defevdants 121 and 14 to 17 can be easily disposed of. Their contention is that the Trial Court as also the High Court erred in granting a decree against them when the plaintiffs in the auit had not asked for any such relief. In our 1902 Sli1ikh Abd~[ ' Kayum .. . Mulla Ala"&W Dru Gmplu. J. 8 k1ikh Abdul Kayum .. M ul/a!Alibha i Dointed trustees of the said trust and that the "defendanta," are trustees de sontort. But when the plaint is read as a whole, especially the statements in para. 19 it becomes quite clear that the plaintiffs in the present suit are seeking relief only against defendant l, Hakimia Society and the defendants Nos. 2 and 11; the members of the Society. The averments on which the case that defendants are not validly appointed trustees and are trustees de sontort are made in respect only of these 11 defendants. The allegations of breach of trust are also made only against . these defendants. Paragraph 10 puts the matter in clear perspective in these worils : "The plaintiffs say that defendant No. 1 ·and defendants 2 to i 1 who are the present members of d!'lfendant No. 1 Society are liable to be removed on. the following grounds." This statement is followed by an enumeration of six grounds . all of which clearly and unmistakably refer only to these 11 defendants. Common sense and ordinary rules of grammar therefore oompel us to read the words "defendants" / \ I ') 3 S.C.R. SUPREME COURT B.EPoRTS 633 in Paras 20 and 26 to mean only defendants ~os. I to 11. We have no doubt therefore that the courts below misdirected themselves in thinking that the plaintiffs had asked for any relief as against defendants 12 to 17.. - It was stated before us that the Muchhala trust was outside the jurisdiction of the Trial Court and that even if any relief had been asked for against defendants 12 to 17 the Trial Court would not have been competent in law to give such relief. It is unnecessary for us to consider that aspect of the matter as it is abundantly clear that the plaitiffs did not ask for any relief against defendants 12 to 17 and for that reason alone the courts below acted illegally in passing any decree as against those defendants. In the two appeals filed respectively by the plainttffs and defendants 12, and 14 to 17 the appellants a.re represented by the. learned Solicitor-General and it . is conceded by him . for the plaintiffs that the plaint did not claim any relief · against defts. 12 to 17. The appeal No. 406 of 1960 which is by the original defendants 12 & 14 to 17 must therefore be allowed. · The appeal which has been numbered as 407 of 1960 is by the four plaintiffs. The first contention raised on their beha.lf by the learned Solicitor-General is that the original trustees of the Burhanpur trust had no power in law to divest themselves of the property vested in them by the trust deed or to vest these properties in any society or its governing body, even though the society or the governing body might include some or all of the old trustees. In the persent case it was contended in the plaint and urged before us on behalf of the appellants that the evidence would show that all the old trustees. had not joined in the act of 1'6S SA• ikh Abdul Jr a yum ... M ulla A llibha i Das Guftla J. • • 1962. .Jheikh Abdul' Kayum •• Mulla Allibhai Das Gupla J. 634 SUPREME OOURT R:il:PORTS (ill63j fqrmatlon of the Hakimia Society and transfering the property vested in them to the society or its members. Assuming, however, for the purpose of the present question that what was done should be deemed in law to be the act of the entire old body of the trustees, even so, the learned Counsel argues, the act had no legal validity and did not produce in hw the consequence of constituting the Hakimia. Society' or its member3 trustees in place of the old trustees. In our judgment, this contention must succeed. There cannot, in our opinion, be any doubt about the correotness of the legal position that trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted b} the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee· is not bound to accept the trust, but having on.ca entered npon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate· his office or any of his funotions except in s01μe specifier} oases. The rules against renuncia,tion of the trust by a trustee and against delegation of·his functions by a trustee are embo died, in respect of trusts to which the Indian Trusts Act applies, in ss. 46 and 4 7 of that Act. These sections run thus :-- "46, A trustee who has accepted the trust can· not afterwards renonce it except (a) with the perm~ssion of a principal Ci1'.il Court of Original Jurisdiction, or( b) if the beneficiary is com- . petent to contract, with bis consent, or ( o) by virtue of a special power in the instrument of trust. · \.., . ' , '. ,; ~ . ,. 3 S.C.R. stJi>'.RE:Mit COURT REPoR.'i's 4 7. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a. stranger, unless (a) the instrumen,t of trust so provides, or(b) the delegation is in the regular course of business, or ( c) the delegation is necessary, or (d) the beneficiary, being compe- ·tent to contract, consents ~o the delegation." It is true that s. l of the Indian Trusts Act· makes provisions of the Act inapplicable to public or private religious or charitable endowments; and so, these sections may not in terms apply to the trust now in question. These sections however embody nothing more or less th&n the principles which have been applied to all trusts in a.II countries. The principle of the rule against delegatioq with which we are concerned in the present case, is clear; a fiduciary relationship having been created, it is against the interests of society in general that such relationship should be allowed to be terminated unlila.terally. That is why the law does not permit delegation by a trustee of his functions, except in cases of ne.oessity or with the consenil of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business'', that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs. · What we have got in the present case is not delegation of some functions only, but delegation of all functions and o{ all powers and is nothing short of abdication in favour of a new body of men. Necessarily there is ·aiso the attempt by the old trustees to divest themselves of all properties vested in them by the settlor and vesting them in another body of persons. We know of no principle of law and of no authority which permits such abdication of trust in favour of another body of persons. ·' 196t Sheikh Abdui · Kaumi •' ·.V~ I · Mul/a Allibhai Das Gup!a J. • lfH Bhiith Abdul !["""" T. JI ulliJ A.llibA•i -- DIR Gupta J. 1136 SUPREME COURT REPORTS [1963] In the deed itself there is nothing which contemplates or allows suc,h an abdication and the substitution of the old trustees by a new body of trustees. It is necessary in this connection to consider the terms of cl.5 of the trust deed. That clause is in these words: - "5. All the aforesaid trustees shall be entitled · to govern, manage and administer the affairs of the school above. These trustees ahall have the power of framing rules and regula- . tions 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 rule~ 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 provisions for the appointment of new truatees cannot by any . stretch of imagination be held to mean the substitution of the' old body of trustees by a new body. That provision only permits the old trustees to add to their number. Nor does the power to frame rules and regulations for the benefit and efficient running of the school autho· rise the trustees to give up the manitgement of the school themselves or to divest themselves· of the I 3 S.C.R. SUPREME COURT REPORTS 637 properties entrusted to them by the trust deed and vest them in other persons. We are satisfied therefore that cl.5 of the trust deed does not in any manner ai1thorise the trusiees appointed by deed to abdicit in favollr of author body of persons or to constitute that body as trustees in their own place. There is no question here also of the· beneficiary, i.e., the school consenting to such abdication. There is therefore no escape from the conclusion that the act of the trustees, who were appointed by the trust deed, in handing over the management of the school to the Hakimia Society and the properties of the school to the members of the governing body of the Hakima Society was illegal and void in law. 'rho members of the Society or the member~ of the governing boq_y did not therefore become trustees in respect of tlie properties which are covered by the Burbanpur trust. This position in law is not seriously disputed by Mr. Sen, who appeared before us on beh.e.lf of the respondents. He has however taken before us a noval line for suporting the decision of the courts below. He has tried to persuade us that the trust deed of September 1909 creates a trust only in respect of the properties that belonged to the six: presons .who executed the trust deed. These properties have peen set out in els. 7 to 12 of the deed. This deed therefore has not created any trust in respect of such of the propertieR mentioned in the plaint which do not fall within the properties mentioned in these clauses of the trust deed. As regards cl.5 of the trust deed which has been set out above and which states that ' 1 All the movable and 'immovable properties connected with the said school shall come to vest in the trustees," the learned Counsel states that the six: settlors who executed this trust deed of September 1909 have JlOt been shown to have had an;r title to the11e 19~B Shei~h Abdul Kayum •• M ult. A.llibliai Das Gupta J. 1961 'i'"h11k1' A.bciul · K•1um v. .llulla Allibhai I . . ' 638 SUPREME COURT REPORTS [1963] ·movable and immovable properties connected .with the school. The school, argues the learned Counsel, is merely a beneficiary of the trust and the properties of the school do not become trust properties entrusted to the11e trustees merely because t.he settlors have createated a trust in respect of other properties. There is no question therefore of any property-other than the properti.is mentioned in Paras. 7 to 12 of the deed-having been vested in the truste1>s appointed by the deed, or their divesting themselves of the same. It is only in so far as the defendants 1 to 11 olaim to be the trustees of the properties mentioned in els. 7 to 12 of this deed ·that they can be considered to be not validly appointed trustees. Mr. Sen submits that his clients do not claim to be trustees in respect of these properties, viz., those which are. mentioned in els. 7 to 12 of the deed. In so far as they manage these properties an order. may be made against them removing them from the management of these and they may be asked to render accounts in respect of these properties, only. In respect of other ·properties which according to Mr. Sen are the properties belongining to the beneficiary school, however, no order could properly be made, as they are outside the Burhanpur. trust that came into existence by the trust deed of September 1909. The argument appears attractive at first sight ·and even plausible. Unfortunately, however, for the respondents, this case which their Counsel now seeks to make was n€