1. On the 23rd 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 2nd of 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 13th 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 2nd of August 1906, Fatmabibi appointed the 2nd plaintiff Haji Sulleman Abdul Wahed an additional trustee and by another deed bearing date the 26th of November 1906 Fatmabibi appointed Abdul Rahiman Jitayker and Hasson Khan Ahmed-khan, the 3rd and 4th plaintiffs herein, as additional trustees.
2. The 1st 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 23rd 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, 3rd and 4th 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.
4. The first question formulated in the Originating Summons in this suit runs as follows :-
(1). Whether the appointment of Nawabzada Nassarulla Khan as one of the trustees of the said indenture of settlement by the indenture of the 13th day of March 1905, referred to in the plaint, is not void for want of registration.
5. The Advocate General has argued on behalf of the plaintiffs that the deed appointing the 2nd defendant purports or operates to create in him an interest in immoveable property and that therefore it requires registration. There is no doubt that trust property is immoveable and the question for my consideration is-does the deed of appointment create an interest in immoveable property in favour of the 2nd defendant The learned counsel has relied on the very last clause in the deed of settlement and has argued that that clause confers on the 2nd defendant interest in the trust property the moment he is nominated or declared a trustee. The last clause runs as follows:-'And every such new trustee as well before as after the said trust premises shall have become vested in him-shall have all the power and authority of the trustee in whose place he shall be substituted. '
6. At the last heaving the Advocate General drew my attention to passages at pages 791 and 792 of Lewin on the Law of Trusts where the consideration of several cases is summarized in these words:-
It would appear therefore that at the present day an actual conveyance of the legal estate-unless the power be specially worded-is not essential to the valid appointment of new trustees.
7. Mr. Strangman, for defendants 1 and 2, has argued that the 2nd defendant's interest in the trust property is not created by the deed of appointment-that the trust property vested in the 2nd defendant under the provision of Section 75 of the Indian Trusts Act (II of 1882) and that in any event all that the deed of appointment conferred on the 2nd defendant was a mere right to demand a conveyance of the trust property in his favour. The learned Counsel relied on Clause (h) of Section 17 of the Registration Act, which clause governs Clause (b) of the same section.
8. The Advocate General replies that the Indian Trusts Act does not apply to the settlement and that the original indenture of settlement read together with the deed of appointment creates in the 2nd defendant an interest in the trust property.
9. The question is not free from difficulty and at one time I was impressed with the force of the Advocate General's argument but on fuller consideration I have come to the conclusion that the deed of appointment of the 13th of March, 1905, does not require registration.
10. In the first place, as correctly argued by the Advocate General, the Indian Trusts Act does not apply to the settlement in question in this suit. Section 1 of the Act specifically provides that nothing contained in the Act applies to public and private religious or charitable endowments or affects the rule-of Mahomedan Law as to wakf. This settlement has now become wholly charitable and therefore Section 75 of the Indian Trusts Act does not apply and does not operate to vest the trust property in the newly appointed trustee. With reference to the passages cited by the Advocate General from Lewin it is tc be observed that what is stated there is based on the results of English cases which have been decided under the provisions of sections and sub-sections of the English Conveyancing Act 1881 and other statutory enactments. Here we have a settlement made by a Mahomedan lady and her husband. Originally it was intended to secure the property to their children and grand-children subject to their life interest with an ultimate gift to charity in the event of failure of progeny. The gift in favour of charity has ultimately taken effect. The provisions of the Indian Trusts Act do not apply, and, therefore, the trust property does not vest in the 2nd defendant by mere operation of law. The surviving settlor by the deed of the 13th of March 1905 merely declares and nominates the 2nd defendant a trustee in the place of the deceased trustee.
11. The deed does not purport to convey to him anything. Fatmabibi had nothing to convey. The legal title to the trust property was then and now is, in the surviving trustee the first defendant. Clearly therefore something yet remains to be done before the property is vested in the new trustee. He is entitled to go to the surviving trustee and say 'I am now nominated a trustee by the party entitled to do so and I ask you to convey the trust property to me jointly with yourself.' The deed of appointment by itself creates no interest in the property but merely gives him the right to obtain another document. This is covered by the saving Clause (h) of Section 17 of the Registration Act which provides that a document merely conferring a right to obtain another document and not itself creating an interest in immoveable property does not require registration. I have carefully studied the last clause of the indenture of settlement but I am unable so to construe its language as to hold that that clause read with the deed of appointment creates any present interest in the trust property. The trust property has not yet 'become vested ' in him and therefore under the clause no power or authority is conferred upon him. Though there is no direct authority on the question it seems to me that the case cited by Mr. Strangman-Shivlingdpa v. Haribai (1890) P.J. 78 is in point. The question there was whether a varas patra (paper of heirship) required registration. Sir Charles Sargent C.J. and Mr. Justice Telang there say :-
We think that varas patra by Shivappa did not require registration. It is in terms only a declaration that the plaintiff is his adopted son and as such entitled to his property and does not of itself create an interest in immoveable property.
12. The deed of appointment in this case under my consideration is a document of a like nature. I am unable to say that by itself it creates an interest in immoveable property in favour of the 2nd defendant.
13. Mr. Strangman also relied on an opinion expressed by Mr. Justice Parran in the matter of the last will and testament of the late Mr. Ardeshir Hormusji Wadia but it is the expression of merely an opinion without reasons and it does not give any facts or reasons, nor is the case submitted to the learned Judge before me and therefore I am unable to say whether that is an authority in support of Mr. Strangman's contention but it is unnecessary to consider that further as I am in accord, with the view which Mr. Strangman has urged before me.
14. On a careful consideration of all the arguments addressed to me I have come to the conclusion that the deed appointing and declaring the second defendant a trustee of the settlement of the 23rd of January 1871 does not require registration and I accordingly answer the first question by declaring that the appointment of Nawabzada Nassarulla Khan as one of the trustees of the Settlement of the 23rd of January 1871 by the Indenture of the 13th of March 1905 is not void by reason of the said Indenture of appointment not being registered.
15. Had my answer to the first question been different there would have been no question as to what answer I should give as to the second question which relates to the validity of the appointment of the second plaintiff, Mr. Sulleman Abdul Wahed, as one of the additional trustees appointed by Fatmebibi by the Indenture of the 2nd of August 1906. If the second defendant Nawabzada Nassarulla Khan had been held not to have been validly appointed then there would have been no question as to the validity of Mr. Sulleman's appointment in the place of the original deceased trustee Haji Abdul Kadar. As the matter now stands the appointment of the second plaintiff must be considered on the same footing as the appointments of plaintiffs Nos. 3 and 4 by Fatmabibi by the Indenture of the 26th of November 1906, the validity or otherwise of whose appointment forms the subject-matter of the third question. The same considerations apply to both the questions and I will consider them together. Fatmabibi during her lifetime, after she had appointed her brother's sons-in-law the second defendant Nas8arulla Khan as trustee, seems to have thought it necessary or desirable to increase the number of trustees and therefore at short intervals she executed two Indentures by the first of which she appointed the second plaintiff Mr. Sulleman and by the second of which she appointed the third and fourth plaintiffs additional trustees of the Settlement of 1871. I assume that she must have had good and grave reasons for doing so and I assume that she must have thought it necessary or desirable in the interests of the charitable trusts created by her that there should be additional trustees. At the time she made these additional appointments she was advanced in years, had been a widow for many years, her only son had died and there was no progeny-she knew that the whole of the settled property on her death was to go to charity. It is not therefore by any means a strained inference to assume that she appointed the three additional trustees in the interests of the charities that were to come in force immediately on her death.
16. Under the original deed of settlement she undoubtedly had the power to increase the number of trustees. The only argument urged by Mr. Strangman against the validity of her appointment of the three new trustees is that Fatmabibi had not the power to appoint at the tints she made the appointment. Mr. Strangman has relied on the words 'upon any such appointment' preceding the words to increase or diminish the original number of trustees.'
17. The clause in the settlement conferring the power of appointment of trustees in the place of a retiring or dying trustee or a trustee going abroad is as follows :-
It shall be lawful for ... Fatmabibi ... to appoint any other person or persons to be a trustee or trustees in the place of the trustee or trustees so dying or going to reside abroad or desiring to retire or refusing or becoming incapable to act as aforesaid with liberty upon any such appointment to increase or diminish the original number of trustees and upon every such appointment the trust premises hereby settled shall be so transferred as to become vested in the new trustee or trustees &c.; &c.;
18. In construing this clause I must remember that I am dealing with an instrument which now refers to charitable trusts and which at the dates when Fatmabibi purported to exercise her powers of increasing the number of trustees must have been taken by all parties to be referring, at no distant date, to charitable trusts with a certainty. Fatmabibi's husband died in 1872. Her only child died in its infancy in 1874. She never remarried. In 1906 she was an old lady. It was a foregone conclusion that on her death the trust properties would go to the charities established by the Settlement, Under these circumstances I must be guided in construing the powers of appointment conferred by the Indenture on Fatmabibi by the Rules laid down for the construction of instruments relating to charitable Trusts. The rule deduced from, authorities is to be found [ at page 316 of the last Edition of Tudor's Charitable Trusts where it is said:-
In cases of charitable Trusts where the Courts have adopted a greater latitude of construction than in ordinary cases directions to appoint new Trustees on the happening of a certain event have been considered to be merely directory and not to confine the exercise of the power to the happening of that event only.
19. Of the authorities cited by Mr. Jayakar for the third defendant, the Advocate General, in support of his contention that the appointments of plaintiffs 2, 3 and 4 are validly made, the one Doe d. Dupleix v. Roe (1796)1 Anst. 86 seems to me to be much in point and supports his contentions. There in the trust deed of a Weslyan Chapel it was provided that ' when the number of trustees was reduced to fifteen the said remaining trustees shall proceed to elect etc.' Instead of waiting till their number was reduced to fifteen they elected other trustees when their number was seventeen. The Court held the appointment of new trustees to be valid and said that that clause did not preclude them from electing trustees before the time their number was reduced to fifteen when they were to be compellable to make the election. In the case In re Gregson's Trusts (1886) L.R. 34 Ch. D. 209 relied upon by Mr. Strangman the question was as to the construction of sub-section 2 of Section 31 of the Conveyancing Act of 1881. Counsel in the course of discussion suggested a doubt and Mr. Justice North assented. The question was not argued or considered and the real question in the case was the power of the Court under Section 32 of the Trustee Act of 1850. I can hardly regard the mere assent to an argument in the course of a discussion as binding authority in construing a charitable trust created by Mahomedans in India. Now in this case when Fatmabibi made the appointment of Nawabzada Nassarulla Khan in place of a deceased trustee she had a perfect right to increase the number of trustees. If she had then appointed the second, third and fourth plaintiffs no one could have challenged her right to do so. I am not prepared to hold that Fatmabibi's right to increase the number of trustees is lost because what she could have done with perfect propriety and in the exercise of her undoubted right in March 1905, she did in August or November, 1906. The words 'and upon any such appointment' are not words that absolutely govern Fatmabibi's right to increase the number of trustees. They merely indicate the occasion when she may exercise her right but the right to increase the number of trustees existed and I am of opinion that she was entitled to increase the number of trustees whenever she chose to do so. This being my view I answer both questions 2 and 3 in the affirmative and declare that plaintiffs Nos. 2, 3 and 4 are validly appointed trustees of the Settlement of the 23rd of January 1871.
20. Fatmabibi is now dead and therefore the fourth question goes out of consideration.
21. The fifth and last question has not been argued before me but the answer does not involve any difficult considerations after my findings on the previous questions. Although Fatmabibi hai power to nominate new trustees she had no power to convey the trust property to them. The legal title to the trust premises was at the date of the appointment of plaintiffs Nos. 2, 3 and 4 vested in defendant No. 1. I have held that the mere nomination did not vest trust property in them. The trust property is not conveyed to defendant No. 2 by No. 1 in whom it is vested. The second, third and fourth plaintiffs as validly appointed trustees, are entitled to claim a conveyance of the trust property to themselves jointly with the first and second defendants from the first defendant who at present is the only person in whom the property is legally vested. That is my answer to the fifth question.
22. The costs of all parties appearing on the Summons taxed between attorney and client will be paid out of the income of the trust property.
23. Note.-The Advocate General informs me that the Taxing Master makes a difficulty about counsel's fees etc. if counsel are not certified by the Court, In Originating Summons I refrain from certifying counsel because it is unnecessary to do so. Though these summonses are heard in chambers it must be remembered that all Originating Summonses are taken in a suit. Parties are entitled to instruct counsel-and without any certificate the costs of one counsel must be allowed on taxation. I am under the impression that the Taxing Master does not make any such difficulty as is suggested and the Advocate General is under the same impression. I believe the information of hia attorney is incorrect however I make this note so as to avoid any difficulty.