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24. Final arguments were advanced on behalf of either party.

Written arguments have also been filed, which are perused. The arguments advanced on each point shall be referred in forthcoming paragraphs, during discussions on reasons for decision.

Appreciation of Evidence

25. This suit was instituted on the premise that there was no provision in the trust deed regarding appointment of a trustee after the death of settlor. The sole surviving trustee i.e. defendant no.2 had no power to appoint another trustee, and he himself was 75 years old hence ineligible to continue as a trustee. Defendant no.2 acted under wrong legal advise and appointed defendant no.3 as co-trustee despite having no powers to do the same. Since there was a vaccum in the management of trust after demise of settlor, directions of the Court were required for proper administration of the trust. Plaintiffs claimed that they were members of the advisory body, elected during the Bhog Ceremony of the settlor for advising about perpetuating the legacy of the settlor.

pertaining to decision by majority and quorum. The condition of quorum shall be required to be fulfilled only in cases where minimum number exists and decision by majority shall be applicable to such cases only. Clause 8 (xii) may be read in singular too, considering Section 13 of the General Clauses Act. This clause is a continuity clause that empowers the surviving and continuing trustee to act in cases of vacancy, and has been subject matter of interpretation in case related to companies. The term vacancy necessarily presupposes a situation where the number has fallen below minimum and shall not come in to play in cases where minimum number exists despite death, resignation or any other eventuality. The trust deed has to be interpreted literally and in a manner that advances the intent of the settlor. This is Odger's Rules of Interpretation cited with approval by Indian Courts. If two interpretations are possible, one that gives effect to all clauses and one which renders one or more of these nugatory, the former should be adopted. Even if it is held that the trust deed does not provide for appointment of trustee, the surviving trustee can act and appoint another trustee by necessary implication, under common law. This principle is embodied in section 73 of the Indian Trust Act. Though Indian Trust Act is applicable to private trust, however section 73 contains general principles of law of trusts that can be applied to the public trusts as well. The case laws relied upon Lt. Gen. C.K. Kapur (Retd.) & Ors. Vs. Guruji Ka Ashram & Ors.

interpreting the articles/memorandum of association of companies (referred AIR 1953 Mad 467). Hence, clause 8(xii) of the trust deed shall be applicable despite non-fulfillment of clause 8(ix). The plural word trustees in such a case can be read as trustee also in case the circumstances so require and context of clause 8 does not bar such a reading of singular into plural and vice versa. If interpretation of the plaintiffs is accepted, it shall mean that everytime there is a sole surviving trustee for any reasons, court shall have to step in to appoint another trustee and in the meanwhile sole surviving trustee shall not be able to transact any business of the trust. Such an interpretation to the trust deed is absurd because it would effect the functioning of the trust.

cannot be said to be completely alien to the law of trusts. The trust deed contains continuity clause thereby empowering even a sole surviving trustee to act as board of trustee notwithstanding any vacancy.

48. The amendment deed Ex.P-3 clearly depicts that defendant no.2 appointed defendant no.3 as trustee on demise of settlor, while acting under clause 8 (xii) of the trust deed, and hence acted within his powers. The settlor did not specify any other qualification for a trustee except that of age i.e. 21 years and maximum 75 years. There is nothing in the trust deed, which suggests that only family member could be appointed a trustee or only non-family could be the trustee. Hence, only because defendant no.3 is a family member of the settlor, does not qualify or disqualify him to be a trustee any more or less than a non-family member. There is no material on record to suggest that settlor wanted the trust to be a family trust. The appointment of defendant no.3 was as per clause 8 of the trust deed by the sole surviving trustee i.e. defendant no.2, and does not become bad only because he was a family member of the settlor and the settlor never wanted the trust to be a family trust.