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Provided always and it is hereby agreed and declared between and by the parties to these presents that if the said Trustees in and by these presents nominated or either of them or any future Trustee or Trustees to be appointed as hereinafter is mentioned shall die or be desirous of being discharged of and from, or refuse or decline or become incapable to act in the Trusts or Powers hereby in them reposed or to them given as aforesaid, then and in such case and when and so often as the same shall happen it shall be lawful for the surviving or continuing Trustees or for the Executors or Administrators of the last surviving Trustee by any Deed or Deeds, instrument or instruments in writing, signed and sealed and delivered by them, him or her from time to time to nominate, substitute, or appoint one or more person or persons to be a Trustee or Trustees in the stead or place of the Trustee or Trustees so dying or being abroad or desiring to be discharged or refusing, declining or becoming incapable to act as aforesaid.

50. Let me here examine the arguments addressed to the Court by the defendants' Counsel in support of his contention that the defendants are validly appointed Trustees of the Funds and securities. In the first instance, I will take their case as to immovable properties later on. We have seen that in 1823, when Trustees were first appointed, the Funds amounted to about Rs. 18,000. In 1851, by means of additions and accretions to the existing Funds and creation of new Funds, the amount in the hands of the Trustees had increased to a lac and a-half. This sum belonged to 15 different Funds which were in existence at the date of the Deed of 1851. The particulars of these 15 Funds are given in Exhibit No. 54. With further additions and accretions of interest, etc., the amount to the credit of these 15 Funds at present is somewhere about six and a-half lacs of rupees. Mr. Strangman argued that the worst that the Court can do is to declare that the defendants are not validly appointed Trustees as to these six and a-half lacs of rupees, but as to the rest he said, with considerable emphasis, "the Court can't touch us." What is the rest? and why can't the Court touch the defendants as to the rest? It seems that between 1851 and 1871, 23 other Funds came into existence, particulars whereof are given in Exhibit No. 59. On the 16th of September, 1871, another Trust Deed, Exhibit A44, was executed. One of the Funds mentioned in the 3rd schedule of this Trust Deed is the Fund, for carrying dead bodies of all Zoroastrians to the Towers, in which Fund, the plaintiffs contend, all converts to Zoroastrianism are entitled to participate. Between 1871 and the present time, two hundred and odd more funds have come into existence, the particulars whereof are given in Exhibit No. 60. The amount to the credit of all the Charitable and Religious Funds of the Parsi community at present exceeds 53 lacs of rupees. Mr. Strangman argues that it is a matter of no consequence whether the Trustees were validly appointed or not in 1851. Since 1831, they have exercised the rights of appointment conferred by the Deed of 1851. The public, he says, must have known this because till 1846 the Trustees published the accounts of their management in a newspaper-the Bombay Samachar and since then up to the present time in separate books. These accounts were published under the names of different Trustees, which from time to time showed that the Trustees were not the same. It was, he says, also known to the community, because at times there were articles in Gujerati newspapers which showed that the surviving Trustees were filling up vacancies. On these materials, it is argued that the Court must hold that every single member of the community who has given donations to the various charities established for the benefit of the community or given funds to inaugurate new benefactions must have been fully cognisant that the Trustees for the time being to whom these moneys were entrusted had a right to appoint or were appointing successors and filling up vacancies. On the assumption that each one of the donors knew this, the Court is asked to hold that when the donors gave their moneys to the Trustees for the time being, each one of them by implication conferred on the Trustees the power to nominate the successors of those of them who died or retired. At all events the Court must-Mr. Strangman urged-hold that these donors of all Funds that came into existence after 1851 intended to confer on the Trustees the power of appointment for which he was making this vigorous fight. This line of argument did not impress either my learned brother Beaman or myself in the least, and we noticed that Mr. Strangman seemed surprised that we should be so little impressed with what appeared to him and to his learned colleagues such sound reasoning. Now, in the first place, the assumption the Court was asked to make seemed to me to be entirely unwarranted by the facts proved before us. I do not, in the first instance, think that one in a thousand Parsis ever cared to read the voluminous accounts published by the Trustees. The Trustees have always been men of the highest integrity and social position. They have been always men who commanded the respect and confidence of the community. They have all through administered the Charitable Funds with such efficiency that there never was at any time any complaint against their management. They were always good men and absolutely trustworthy. Members of the community may have noticed-probably they did know- that they filled up vacancies amongst themselves, but whoever cared to enquire whether they had the right to do so or not? I venture to think not one Parsi in ten thousand. On the happening of an auspicious or inauspicious event in his family, when a member of the community felt inclined to contribute Funds to existing Charities or to establish a new Charity or to found a separate benefaction, he found that there was a body of good and honest men who were already in possession of the funds of the community. They were possessed of an establishment and an organisation for giving effect to all charitable donations, and had hitherto administered the charities of the community to the community's entire satisfaction. What more did he want? Send the moneys to them and express to them the object of his benefaction and the way in which the funds were to be used, and he was quite content to leave the rest to them. Of the hundreds and hundreds of donors of sums, large or small, not one, I venture to think, when making his donation, ever thought of the Trustees' powers of appointment. They assumed that what they had been hitherto doing in the past, they had legal right and power to do; and when entrusting their moneys to existing Trustees they could not have had the remotest notion of conferring on them any powers in addition to those that they may have had. These funds have grown to their present proportions by innumerable donations, small and large. I doubt if their is any single family of Parsis in Bombay who has not at one time or another contributed sums of money-may be large, may be small-to some one or more of these Funds. These donations are mostly made in memory of the dead and are generally announced at the third day ceremony. It seems to me preposterous to conceive that when a Parsi contributed Rs. 5 or Rs. 5,000 to some Parsi Charity and sent the moneys with a covering letter to people who he had no reason whatsoever to believe were not validly appointed Trustees of the punchayet Funds, that at that moment he sat down and solemnly said to himself" I am entrusting my moneys to people who are Trustees of punchayet Funds. I know the survivors of them are appointing successors to their dead colleagues. I constitute them Trustees of my money, and I intend that so far as my contribution is concerned they should have the same powers they have hitherto exercised, no matter whether they legally had or have the powers or not."

56. The right to appoint members of the Parsi punchayet according to ancient usage has been satisfactorily proved to have been in the Parsi community. The community never expressly delegated to the punchayet the power to appoint Trustees. The members of the punchayet were mere delegates of the community, and if they exercised any powers they must be taken to have derived those powers from those who appointed them their delegates. The defendants' Counsel, however, argues the Trustees have exercised those powers of filling up vacancies rightly or wrongly for nearly 60 years. Why deprive them of power now? The answer is to be found in the case of the Attorney-General v. Dalton 13 Beavan 141. The facts of that case are, in many respects very similar. If anything, the facts in this case are clearer against the defendants and less lost in obscurity than in the English case. In the course of his judgment, Lord Langdale the Master of the Rolls, says: The principal question litigated was by whom new Trustees to be added to the Rector and Church Wardens; ought (when required) to be appointed, it being contended on behalf of the Informant (the Attorney-General) that the new Trustees should be nominated by the rate-payers of the Parish: while the defendants now claiming to be Trustees contend that the right of nominating new Trustees (when required) belongs to the surviving Trustees without the intervention of the Parishioners at large."

77. The property 6thly described in the Schedule to Exhibit U is the Chowpatty Dharamsala. It is marked C on plan Exhibit No. 5. The two documents which relate to this property are Exhibits Nos. 9 and 10. Exhibit No. 9 is a Conveyance and Deed of Trust executed by one Cursetji Cowasji in favour of the members of the Parsi punchayet on the 8th of June, 1838. After reciting that the said Cursetji Cowasji, by a meeting dated the 28th of June, 1835, had made a gift of this property to the Parsi punchayet, this document formally conveys the property to certain parties as Trustees and gives them the power of nominating their successors. It happens, however, that all the Trustees mentioned in this Deed on whom this power of appointment was specifically conferred, died without exercising that power. The second document relating to this property is Exhibit No. 10, which is a Conveyance, dated the 22nd of June, 1874, by the Executors of the last surviving Trustee under the former Deed to the then Trustees of the funds and Properties of the Parsi punchayet. In this Deed, Executors purport to confer on the Trustees the same powers as the former Deed conferred on the Original Trustees. Had the Executors of the last surviving Trustee any right to confer on the then Trustees of the punchayet Property the power of appointing their successors? Reliance was placed on In Re: Morton & Hallett, L.R. 15 Ch. D. 143 and In Re: Cunningham & Frayling (1891) L.R. 2 Ch. 567.