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10. But oven if for the sake of argument it is conceded that this contention of the plaintiffs is correct, they are still left with this difficulty that, assuming three surviving trustees could act without the appointment of new trustees, yet a three-quarter majority of such three trustees would be two and a quarter. Or if Sir Dorab is to be taken as representing two votes, then the requisite three-quarter majority would be three. In fact, however, there were only two trustees present at the meeting of December 4, 1923, and consequently their two votes fell short of the requisite two and one quarter or three.

20. I will, accordingly, now proceed to deal with theses documents. As regards the resolution of June 13, 1924, Exhibit 2, it is common ground that only two trustees were then present, viz. Mr. R.D. Tata and Mr. H.E. Bamji. Sir Dorab was absent. The resolution runs as follows :-

The trustees were informed that on the death of Mr. Jumsetji Nusserwanji Tata and Mr. Kaikhusru Edulji Bamji no new trustees were appointed as there ; were already five trustees. Since then Sir Ratan Tata died and Mr. Fardunji Maneckji Kanga resigned the office of trustee. As there remained only three trustees it was necessary to appoint two more trustees to make up the number of five trustees. Resolved that Mr. Sorabji Dorabji Saklatvalla and Kaikobad Bapuji Saklatvalla be appointed trustees in place of Sir Ratan Tata deceased and Mr, Fardunji Maneckji Kanga resigned respectively. The trustees directed that necessary Deed of Appointment be prepared.

21. I think it clear that this resolution cannot be regarded as a valid appointment of now trustees. Even if the settlement did not require an appointment to bo by deed,, still it is clear that this resolution contemplated that a deed of appointment should be prepared. But apart from this I think it was a vital defect that the appointment was only by two trustees and not by all three. The, power of appointing new trustees was vested in the surviving or continuing trustees or trustee including every refusing or retiring trustee who was willing to act in the execution, of that power. And even if the special clauses in the settlement as to the mode of ascertaining a majority and as to the majority binding the minority could apply here, yet I think it was essential that there should bo a majority in favour of the proposed appointment, after reckoning Sir Dorab as having two hostile votes and a casting vote. On that basis the proposal failed as the two trustees present would be outvoted by the absent Sir Dorab.

68. Then, on June 13, 1924, there was another resolution passed at which Mr. R.D. Tata and Mr. Bamji as trustees were present and again Mr. Ghandy represented Sir Dorabji. Tata, the third trustee. At the meeting it was resolved that Mr. S.D. Saklatvalla and Mr. K.B. Saklatvalla be appointed trustees in place of two deceased trustees and that the necessary deed of appointment be prepared. Hero again the objection might be taken that Mr. Ghandy did not properly represent Sir Dorabji Tata, but on September 15, 19(sic)4, a deed of appointment was executed pursuant to the resolution passed on June 13, 1924, and by that deed which was executed by all the trustees the, two Saklatvallas were appointed trustees. On this date, therefore, there were five trustees in accordance with the trust deed but no resolution was passed by them authorising the sale of the property in question. Matters became complicated again because, on September 23, 1924, a trustee, Mr. Bamji, became insolvent and thereby under the terms of the settlement o?as?d to be a trustee. That was the position on October 30, 1924, when the defendants-appellants put an end to the contract.