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7. There was a further proviso that if any trustee should become bankrupt or insolvent, he should thenceforth ipso facto cease to be a trustee. Then there way a power in certain events for the surviving or continuing trustees to appoint new trustees. This was followed by an important proviso which ran :

Provided always that the number of trustees of these presents shall always be kept up to five but shall never exceed seven.

8. At all material dates for the purposes of this suit, Sir Dorab Tata (plaintiff No. 1), in addition to being a trustee, was also the tenant for life under the settlement, and was, accordingly, entitled to two votes, and also to a casting vote in ascertaining the majority of votes of the trustees in the event of a difference of opinion. The number of trustees under this settlement was originally seven. Prior to February 12, 1925, the only resolution of the trustees, communicated to the defendants with reference to the suit sale was one of December 4, 1923, Ex. 1. It is common ground that at this date there were only throe trustees of the settlement, viz., Sir Dorab Tata and Messrs. R.D. Tata and H.E. Bamji. It is also common ground, as shown by the resolution itself, that at that meeting of December 4, 1923. only two trustees were present, viz., Mr. R.D. Tata and Mr. H.E. Bamji: It is conceded that Mr. J.D. Ghandy was present as purporting to represent Sir Dorab Tata. But the settlement contains we power to appoint proxies and on the evidence before us Mr. Ghandy's presence was immaterial., except that it may be noted that he was the, solicitor for the trustees. At that meeting a resolution was passed purporting to approve the sale to the defendants.

9. That resolution is challenged by the defendants as being invalid inasmuch as the number of trustees was two below the minimum number, and the resolution was not passed by a three-quarter majority of the minimum number. It was urged in reply by the plaintiffs that the main provisions of the settlement clearly contemplated that the trusts might be carried out by the surviving trustees or trustee. It was pointed out that the very expression "trustees or trustee" as used. in the settlement was thereby defined to include the original trustees and "the survivors and survivor of them and the executors and administrators of such survivor who together with the trustees or trustee appointed as hereinafter provided are unless otherwise designated referred to as the trustees or trustee." It was further contended that the proviso that the number of trustees should always be kept up to five was only a corollary to the power of appointing new trustees; and that such latter power was permissive only and not compulsory inasmuch as the settlement only provided that "it shall be lawful" for the surviving or continuing trustees or trustee to make a new appointment. Further, even if such power of appointment had been in imperative terms by the use of some such words as "the surviving or continuing trustees or trustee shall appoint," yet the English authorities show that those words may be treated as directory merely and do not paralyse the execution of the trusts by the surviving trustees, provided the main body of the trusts clearly contemplates that the trusts may in certain events be carried out by the surviving trustees or trustee. In support of these propositions Sections 76 and 44 of the Indian Trusts Act, 1882, and Lane v. Debenham (1853) 11 Hare 188 and Warburton v. Sandys (1845) 14 Sim. 622 were cited to us. (See also In re Bacon: Toovey v. Turner [1907] 1 Ch. 475.)

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.

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.