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Clause 15 Whenever any Trustee shall resign, die or become insolvent or be convicted of a criminal offence involving moral turpitude or desire to be discharged from or refuse or become unfit or incapable to act, then and in every such case, the surviving or the continuing Trustees or trustee for the time being, shall be entitled to appoint a Trustee or Trustees in place of the Trustee or Trustees so resigning or dying, or becoming involvement or being convicted or refusing or becoming unfit or incapable to act as aforesaid. The surviving or continuing Trustees shall also be entitled to appoint additional Trustee or Trustees form time to time as they may consider proper but so that the number of Trustees shall not be more than eleventh.

4. It is submitted that a joint reading of the above conditions mandates the prescribed procedure for appointment of trustees, i.e.

(i) The total number of trustees can be 11. 

CS (OS) 193/2010, I.A. Nos. 1407/2010 & 1408/2010                                                 Page 2
      (ii)    The surviving and continuing trustees have to ensure that at all times at least 5
             trustees are there.

(iii) The power of appointing new trustees vests with surviving and continuing trustees.

6. The plaintiffs next say that on 11.10.2008, Board of Trustees, including them and defendant nos. 2 & 3 again met; however, the appointment of trustees was kept in abeyance. The plaintiffs contend that despite lack of considerable time, the second defendant could not communicate the fate of recommendations made by the surviving trustees and in these CS (OS) 193/2010, I.A. Nos. 1407/2010 & 1408/2010 Page 3 circumstances, the first two of them (the plaintiffs) met him, i.e. the second defendant on 26.02.2009 when request for filling vacancies was made. The plaintiffs next advert to a letter dated 03.04.2009 by the second defendant where he nominated four persons to act as Trustees, i.e. Dr. Bhishma Narain Singh, Shri Gopal Krishan Gandhi, Shri Anil K. Shastri and Shri R.N. Anil. These nominations, according to the suit, are illegal as the appointments were not in conformity with the procedure prescribed with the Trust Deed dated 05.06.1973, as there was no unanimity or majority backing of the existing and continuing trustees. The relevant extract of the said letter (produced with the suit, and which is not in dispute) reads as follows: -

29. The next issue which this Court is concerned is with regard to the legality of the procedure, as well as the appointment of the new trustees, i.e. Defendant Nos. 4 to 6.

30. The two relevant stipulations in the Trust Deed, which deal with appointment of trustees, and the manner of the trustees' taking decisions, i.e. Clause 15 and Clause 18 read as follows:

"Clause 15 Whenever any Trustee shall resign, die or become insolvent or be convicted of a criminal offence involving moral turpitude or desire to be discharged from or refuse or become unfit or incapable to act, then and in every such case, the surviving or the continuing Trustees or trustee for the time being, shall be entitled to appoint a Trustee or Trustees in place of the Trustee or Trustees so resigning or dying, or becoming involvement or being convicted or refusing or becoming unfit or incapable to act as aforesaid. The surviving or continuing Trustees shall also be entitled to appoint additional Trustee or Trustees form time to time as they may consider proper but so that the number of Trustees shall not be more than eleventh.