A. D. VEHVALWALA v. M. C. H. RUSTOMJI — 1965 DIGILAW 90 (CAL)

DATTA, J. ( 1 ) THE facts leading to this suit are as follows : One Rustomji Cawasji prior to 1842 built an Agyaree, fire temple, for the place of worship of the Parsees in Calcutta. The said temple stood on a large area of land where Rustomji Cawasji had built houses or rooms. ( 2 ) ON December 19, 1842, Rustomji Cawsasji conveyed the property known as Rustomji's bazaar lying at Beliaghata in the suburbs of Calcutta to his two sons Dadabhoy Rustomji and Maneckji Rustomji for a consideration of the sum of Company's Rs. 14,000. On the same day, i. e. on December 19, 1842, the said Dadabhoy Rustomjiand Maneckji sons of Rustomji Cawasji, conveyed the very same property, Rustomji's bazaar, toothier father Rustomji Cawasji for a consideration of Company's Rs. 10 in trust with the object: -from and out of the rents and profits of the bazaar hereditaments and premises to pay and disburse of and from the charges and expenses of Agyaree or the place of worship for Parsees built by the said Rustomji Cawasji and situate in Doomtallah in the town of Calcutta and (2) for or upon no other use, trust, intents and purposes whatsoever. It was provided also in that deed that Rustomji Cawasji should be the trustee during his life-time with power to nominate a new trustee or trustees, and upon his death it was further provided that his two sons would be the trustees with like power to appoint a new trustee or trustees and further upon the death of one of his sons, the heirs, executors and administrators of such survivor would be the trustees with like power to appoint one or more trustee or trustees. In 1852, Rustomji Cawasji died and upon his death Dadabhoy Rustomji and Maneckji Rustomji, his two sons, became the trustees. There were disputes between the two trustees. The disputes were referred to arbitration and in 1883 the Arbitrator made an Award. In 1890, Dadabhoy Rustomji died and Maneckji Rustomji commenced to act and became the sole trustee. In 1891, Maneckji Rustomji died without appointing any trustee. In these circumstances, in 1902, the then children of Maneckji and Dadabhoy, five in number, made a declaration of trust and/or made a trust in accordance with the terms of the said Award. Hirjibhoy Maneckji and Kaikhasroo Dadabhoy Rustomji, two of the then trustees, died. In 1891, Maneckji Rustomji died without appointing any trustee. In these circumstances, in 1902, the then children of Maneckji and Dadabhoy, five in number, made a declaration of trust and/or made a trust in accordance with the terms of the said Award. Hirjibhoy Maneckji and Kaikhasroo Dadabhoy Rustomji, two of the then trustees, died. In 1919, the surviving three trustees appointed the three sons of Hirjibhoy Maneckji Rustomji as additional trustees. Therefore, in the result there were six trustees. On June 6, 1919, the said trustees made a declaration of trust and/or made a trust more or less in terms of the Award evidently because the said deed of declaration made on March 2, 1902, was lost. ( 3 ) IN 1920, one of the trustees Jamshedji Hirjibhoy Maneckji Rustomji died. In 1921, Cawasji Maneckji Rustomji, another trustee, died. He had nominated in writing his son-in-law Dinshaw Romer as trustee in his place. In 1923, there was a decree in the Bombay High Court directing the existing truss to execute a deed of appointment in favour of Dinshaw Romer. In 1924, Rustomji Hirjibhoy Maneckji Rustomji, one of the then trustees, resigned. In 1924, the then trustees Cursetji Hirjibhoy Maneckji Rustomji, Cawasji Dadabhoy Rustomji and Framji Dadabhoy Rustomji appointed dinshaw Romer as a trustee. In 1932, Rustomji Hirjibhoy Maneckji Rustomji died. In 1932, Framji Dadabhoy Rustomji died. In 1933, Cawasji Dadabhoy Rustomji died leaving only two surviving trustees, Cursetji Hirjibhoy Maneckji Rustomji and Dinshaw Romer. In 1934, the then three trustees mentioned above appointed in writing three other trustees Framji Cursetji Hirjibhoy Rustomji, originally the plaintiff No. 4, Maneckji Cursetji Hirjibhoy Rustomji, the defendant, and Khurshedji Cowasji Banaji as additional trustees. It is at this stage that the plaintiff No. 4 Framji C. H. Rustomji, who is the only plaintiff in the suit now, and the defendant Maneckji C. H. Rustomji, who is the only defendant in this suit, appeared in the scene. In 1939, Cursetji Hirjibhoy Maneckji died. In 1949, Maneckji Cursetji Hirjibhoy Rustomji took out an Originating Summons. In 1950, a suit was filed by Dinshaw Dorabji Romer and Khurshedji Cowasji Banaji and Framji Curstji Hirjibhoy Rustomji against Maneckji Cursetji Hirjibhoy Rustomji for breach of trust and removal of the defendant trustee. On August 23, 1949, Mr. In 1939, Cursetji Hirjibhoy Maneckji died. In 1949, Maneckji Cursetji Hirjibhoy Rustomji took out an Originating Summons. In 1950, a suit was filed by Dinshaw Dorabji Romer and Khurshedji Cowasji Banaji and Framji Curstji Hirjibhoy Rustomji against Maneckji Cursetji Hirjibhoy Rustomji for breach of trust and removal of the defendant trustee. On August 23, 1949, Mr. Justice S. N. Banerjee directed that a notice of application of the Originating Summons should be served on the Advocate-General who represents charity. This was done. On February 1, 1951, both the Originating Summons and the suit were settled and a decree in terms of settlement was passed. On April 30, 1952, Dinshaw Romer and Khurshedji Cowasji Banaji, who were residents of Bombay, retired from their position as trustees. On May 19, 1952, one Ardeshir Dinshaw Vehvalwala, Pallarji Kaikaus Madan and Framji Cursetji Hirjibhoy Rustomji filed the present suit against Maneckji Cursetji Hirjibhoy Rustomji with the consent in writing of the Advocate-General of West Bengal for, inter alia, removal of the defendant from the office of trust created by or by virtue of indentures dated December 19, 1842, and June 6, 1919, appointment of new trustees, directions for accounts of and enquiries into the defendant's dealing with the trust properties, payment of the amount found due from him upon taking of such accounts and other reliefs. ( 4 ) IT is now necessary to turn to the pleadings of the suit. In para 1 of the plaint the plaintiffs referred to the conveyance dated December 19, 1842, and the deed of declaration of trust and appointment of trustees made on June 6, 1919. In para 2 of the plaint the plaintiffs gave particulars of the properties which consisted of immoveable props at Parsee Church Street and Ezra Street, Calcutta, and gave particulars of investments. In para 3 reference was made to the Originating Summons and the said suit being Suit No. 3306 of 1950. In para 4 of the plaint reference was made to the consent decree dated January 30, 1951, in the said Originating Summons and the suit which was consolidated. In para 5 of the plaint the charges against the defendant are set out. In para 4 of the plaint reference was made to the consent decree dated January 30, 1951, in the said Originating Summons and the suit which was consolidated. In para 5 of the plaint the charges against the defendant are set out. They include, inter alia, the following charges: (A)the defendant has wrongfully failed to send true monthly statements of account to his company-trustees and has from time to time sent false statements of account culminating in the account dated February 17, 1952, in which diverse tenants of the trust properties were falsely shown to be arrears to diverse extents. Particulars in respect of which the said account was false appear from the comparative statement hereto annexed and marked "a'. (B)the defendant wrongfully failed and neglected to pay into the trust account with the Imperial Bank of India diverse sums of rent, as and when collected, the total whereof wrongfully so kept in the defendant's hands on January 31,1952, was Rs. 2,108-2-0 as shown in annexed 'a' hereto. (C)the defendant falsely stated in his letters dated February 8, 1952, and March 3, 1952, that all rents collected by him had been paid into the Bank. The other charges mentioned in the said paragraph are omitted for they were given up. It is, thereafter asserted in para 7 of the plaint that unless the defendant is removed from the office of trustee and an account is directed of his dealings with the trust property, the trust estate will suffer irreparable loss and injury. In para 8 of the plaint it is recited that the first and second plaintiffs are Parsee inhabitants of Calcutta professing Zoroastrian religion and each and all the plaintiffs have an interest in the said trust. It is further stated in the plaint that the plaintiffs have obtained consent in writing of the Advocate-General of West Bengal to the institution of this suit. In the premises, the plaintiffs claimed removal of the defendant from the office of the trustee, appointment of new trustees, directions for accounts of and inquiries into the defendant's dealings with the trust properties, payment of the amount found due from him upon the taking of such accounts and other incidental and usual prayers. In the premises, the plaintiffs claimed removal of the defendant from the office of the trustee, appointment of new trustees, directions for accounts of and inquiries into the defendant's dealings with the trust properties, payment of the amount found due from him upon the taking of such accounts and other incidental and usual prayers. ( 5 ) IN para 1 of the written statement filed by the defendant he did not admit that any trust was created by the alleged conveyance dated December 19, 1842, and by the indenture of the same date as alleged. In para 2 of the written statement the competence of the persons named in the said paragraph to execute the said deed of declaration of trust and appointment of trustees in 1919 was questioned and was asserted that the said deed was incompetent, void and of no effect. In para 4 of the written statement, again, it was asserted that the properties mentioned in para 2 of the plaint were not trust properties. In para 5 of the written statement the defendant also refers to the said Originating Summons and the suit. In para 6 of the written statement the defendant refers to the consent decree dated January 30, 1951, for ascertainment of the terms and effect thereof. In para 7 of the written statement, he denied that he had committed breaches of the terms of the consent decree of any breaches of trust as alleged or at all. In para 8 of the written statement he denied the charges made in para 5 (a) of the plaint. In para 9 of the written statement he stated, inter alia, - the defendant states that by the provisions of the said consent decree dated January 30, 1952, the trustees are bound to set apart a portion of the income of the trust funds are bound to set apart a portion of the income of the trust funds and accumulate the same as a reserve fund. This defendant, therefore, deducted certain amounts every month to the knowledge of the plaintiff No. 3 for the purpose of such reserve fund and the monthly statements sent to the plaintiff No. 3 represented to his full knowledge the amount of collected rents deposited in the Bank during the month for which the account was prepared. This defendant, therefore, deducted certain amounts every month to the knowledge of the plaintiff No. 3 for the purpose of such reserve fund and the monthly statements sent to the plaintiff No. 3 represented to his full knowledge the amount of collected rents deposited in the Bank during the month for which the account was prepared. This defendant states that in many instances rents collected during a month were not shown in the accounts for the next month, were shown in the accounts for subsequent months and accounted for and the plaintiff No. 4 followed the same practice in some cases in respect of his own accounts. The defendant, further, states that when dispute arose in February, 1952 with regard to setting apart of money for reserve fund, the defendant deposited in the Bank on or about March 6, 1952, all moneys then remaining in the hands on account of the said reserve fund and/or duly accounted for such moneys. The defendant, thereafter, denied in paras 10 and 11 of the written statement the charges mentioned in clauses (b) and (c) of para 5 of the plaint. In para 18 of the written statement the defendant denies that the first and the second plaintiffs have any interest in the said trust for the said plaintiffs belong to Sahansahi sect of the Parsees and have never set foot on the Agyaree in suit. The defendant states that the said plaintiffs are the creatures of the plaintiff No. 3 and of one Olpadwala, one Dastoor and one D. C. Driver who are prohibited by the said decree dated January 30, 1952, from interfering in the affairs of the trust. ( 6 ) IN this state of pleadings the following issues were settled:1. WAS any trust created by the documents referred to in para 1 of the plaint? 2. If there was a trust, was it a private or a public trust? 3. Was the defendant committed any breaches of the trust and/or breaches of the consent decree on the grounds mentioned in para 5 of the plaint? 4. To what relief, if any, is the plaintiff entitled? ( 7 ) THE parties before me did not adduce any oral evidence. The parties admitted certain documents and letters including the statement of accounts. Was the defendant committed any breaches of the trust and/or breaches of the consent decree on the grounds mentioned in para 5 of the plaint? 4. To what relief, if any, is the plaintiff entitled? ( 7 ) THE parties before me did not adduce any oral evidence. The parties admitted certain documents and letters including the statement of accounts. Therefore, the controversies in this suit have to be decided on the admitted documents and letters including the statements of accounts. ( 8 ) AT the time of hearing of the suit issue No. 1 was not pressed by the defendant. This leads us to one of the principal controversies in this suit, namely, where the trust was a private or public trust. It has already been noticed in para 1 of the plaint, reference is made to three documents, namely, (a) indenture of conveyance dated December 19, 1842, by Rustomji Cawasji in favour of his two sons; (b) an indenture executed on the same date whereby the sons in their turn conveyed the very same properties which were conveyed to them earlier in the day to their father Cawasji in trust for the benefit of the Agyaree and (c) the said deed of declaration of trust is dated June 6, 1919. ( 9 ) IT is somewhat surprising that there are two documents, one a conveyance by Rustomji Cawasji to his sons and an indenture of the same date whereby the two sons cons conveyed the properties to their father Rustomji Cawasji in trust. This circuitous process was necessary in the state of law then prevailing, for in those days no property could be conveyed by the owner to himself whether as trustee or otherwise. Hence, recourse was taken to these two documents to create trust. ( 10 ) IN this case, the conveyance by Rustomji Cawasji and his sons Dadabhoy and Maneckji Rustomji is not very material. The indenture of conveyance executed by the two sons, whereby a trust was created by the sons of Rustomji Cawasji, is however relevant. The material portions of the said document are set out below: the said Dadabhoy Rustomji Cawasji have granted bargained, sold, released and confirmed and by these presents to and each of them both grant bargain sell release and confirm unto the said Rustomji Cawasji in the actual possession of the said Rustomji Cawasji. . . . The material portions of the said document are set out below: the said Dadabhoy Rustomji Cawasji have granted bargained, sold, released and confirmed and by these presents to and each of them both grant bargain sell release and confirm unto the said Rustomji Cawasji in the actual possession of the said Rustomji Cawasji. . . . To have And to Hold the same with their and each of their appurtenances into and to the use of the said Rustomji Cawasji, his heirs and assigns upon the trusts, and for the special purposes hereinafter expressed and declared, that is to say, in trust from and out of the rents and profits of the said bazaar hereditaments and premises to pay and disburse all and every charges and expenses of Agyaree or the place of worship for the Parsees built by the said Rustomji Cawasji and situate in Doomtallahin the town Calcutta, and to, for or upon no other use, trust, intent or purposes whatsoever. . . . . (b) it shall be lawful for the said Rustomji Cowasji during his life-time by any note or writing under hand to nominate and appoint any one or more person or persons to be a trustee or trustees, (c) it shall be lawful for Rustomji Cawasji during his life-time so often as he shall think proper to add or to increase the number of trustees. . . . (d) it shall be lawful for the said Dadabhoy Rustomji and Maneckji Rustomji or either of them during their joint lives and for the survivor of them then and from and after the death of the survivor of them for the heirs executors and administrators of such survivor to appoint one or more trustee or trustees for the purpose of the trust and to use, exercise and enjoy and the very same powers authorities hereinbefore given to or vested in the said Rustomji Cawasji in his life-time. . . . In the copies of these two deeds the particulars of the properties are not given, but it is clear from the body of the documents that they were situate in what is called Doomtallah in the town of Calcutta. ( 11 ) THERE is a declaration of trust or trust deed dated March 5, 1902, a copy whereof is annexed to the declaration of trust or trust deed dated June 6, 1919. ( 11 ) THERE is a declaration of trust or trust deed dated March 5, 1902, a copy whereof is annexed to the declaration of trust or trust deed dated June 6, 1919. The said deed dated March 5, 1902, recites, inter alia, as follows: that Rustomji Cawasji built thereon with his own private funds an Agyaree or fire temple or place of worship for the Parsee inhabitants of Calcutta professing the Zoroastrian religion and known as the Rustomji Cawasji Agyaree (hereinafter called the said Agyaree) and also certain adjacent houses and shops the rents where of were intended for the support and maintenance of the said Agyaree and which houses and shops were dedicated by him to the said Agyaree as an endowment thereof. (b)and, Whereas the said Agyaree with its endowments was dedicated by the said Rustomji Cawasji for the use of the Parsee Zoroastrain community of Calcutta. (c)they and each of them did thereby grant, bargain, sell, release and confirm unto the said Rustomji Cawasji the said bazaar. To hold the same with their and each of their appurtenances unto and to the use of the Rustomji Cawasji his heirs and assigns upon the trust. . . of the said Agyaree or the place of worship built by the said Rustomji Cawasji andsituate in Doomtallah in the town of Calcutta and to, for or upon no other, use trust intent or purpose whatsoever. (d)whereas certain disputes having arisen between the said Dadabhoy Rustomji and Maneckji Rustomji with regard to the management of the said Agyaree and the collection and application of the rent and profits of the said houses and shops and of the said bazaar the matters in dispute so arising were referred to by the said Dadabhoy Rustomji and Maneckji Rustomji to the arbitration and determination of Robert Knight Esquire and James Windram Esquire (hereinafter called the said arbitrators) both since deceased, and whereas the said arbitrators after having gone through the matters in dispute and the accounts, made their Award in writing on the 8th day of September, 1883. The said Award, it seems from the said two deeds, estimated the necessary expenses and division of the surplus funds between the said two brothers in equal moieties and that a new trust deed should be made out for the future management of the fund embodying the principles and as far as possible the direction given in the said Award. (e)whereas the parties hereto of the first and second part have agreed to the direction of the arbitration in the said Award expressed with such modifications as the said parties have mutually agreed to make and execute a formal deed of trust for purposes hereinafter appearing to appoint trustees to carry out such purposes. ( 12 ) THEREAFTER several rules and regulations concerning the management of the trust estate have been set up which seems to be the genesis of the terms in the deed dated June 6, 1919, and ultimately in the consent decree. ( 13 ) IT is now necessary to turn to the document or indenture dated June 6, 1919, for this is the document which has been relied upon in para 1. The said document recites, inter alia, as follows: (A)whereas one Rustomji Cawasji late a Parsee merchant and inhabitant of Calcutta during his life-time was seized and possessed of a piece or parcel of land situate at Doomtallah Street, now called Ezra Street, in the town of Calcutta and built thereon with his own private funds an Agyaree of the template or place of worship for the Parsee inhabitants of Calcutta professing the Zoroastrain religion and known as the Rustomji Cawasji Agyaree (hereinafter called the said Agyaree) and also certain adjacent houses and shops the rents whereof were intended for the support and maintenance of the said Agyaree and which houses and shops were dedicated by him to the said Agyaree as an endowment thereto and which said premises are more fully described in part I of the first scheduled hereto and intended to be hereby assured. (B)whereas the said Agyaree with its endowment was dedicated by the said Rustomji Cawasji for the use of the Parse Zoroastrain community at Calcutta. (B)whereas the said Agyaree with its endowment was dedicated by the said Rustomji Cawasji for the use of the Parse Zoroastrain community at Calcutta. (C)whereas the said Rustomji Cawasji was during his life-time also seized and possessed of a certain land and premises used as a bazaar or market-place known as Rustomji bazaar described in part II of the first schedule hereto and also intended to be hereby assured and hereinafter called the said bazaar. (D ). . . . the said Dadabhoy Rustomji and Maneckji Rustomji and each of them did thereby grant bargain sell release and confirm unto the said Rustomji Cawasji the said bazaar to hold the same with the appurtenances unto and to the use of the said Rustomji Cawasji his heirs and assign upon the trusts and for special purposes therein expressed and declared, that is to say in trust from and out of the rents and profits of the said bazaar hereditaments and premises to pay and disburse all and every charges and expenses of the said Agyaree and to, for or upon no other use trust intent or purpose whatsoever. (E)whereas certain disputes having arisen between the said Dadabhoy Rustomjinand Maneckji Rustomji with regard to the management of the said Agyaree and the collection and the application of the rents and profits of the said houses and shops of the said bazaar, the matters in dispute so arising were referred by the said Dadabhoy Rustomji and Maneckji Rustomji to the arbitration and determination. . . . . (F)whereas the said arbitrators after having gone through the matters in dispute and the accounts in writing on the 18th day of September, 1883. . . . . . (G)whereas no new trust deed in terms of the said Award was ever made by the said Dadabhoy Rustomji and Manekji Rustomji. (H)whereas by an indenture (a copy whereof omitting the schedule is set out in the second schedule hereto) made on the 5th day of March 1902 between the said Hirjibhoy Maneckji Rustomji and Cawasji Maneckji Rustomji. . . . . . . (I)whereas the annexed deed of trust was duly executed by the parties thereto but the same was not registered under provisions of the Indian Registration Act and the original of the said annexed deed of trust has been lost and mislaid and is now missing. . . . . . . (I)whereas the annexed deed of trust was duly executed by the parties thereto but the same was not registered under provisions of the Indian Registration Act and the original of the said annexed deed of trust has been lost and mislaid and is now missing. (J)whereas the parties hereto have agreed to make and execute a formal deed of trust for the purpose hereinafter appearing and to appoint trustees to carry out such purposes. . . . shall and will at all times forever hereafter stand possessed of and interested, in first, the Agyaree and trust premises described in parts I and II of the first schedule hereto together with the appurtenances, secondly, the several articles of furniture, silver, copper and bell-metal utensils belonging to and kept for the use of the said Agyaree and set out in part III of the first schedule hereto and thirdly, the monies and securities set out in part IV of the first schedule hereto. ( 14 ) THEREAFTER the rules and regulations numbering ten are set out. ( 15 ) IT would be interesting to note that the second clause in this deed is equivalent or in the same terms as clause (5) of the consent decree and a part of the first clause herein is equivalent to clause (6) of the contest decree. In fact, the consent decree has followed the same pattern. ( 16 ) IT is crystal clear from these documents that there was an endowment prior to 1842 whereby Rustomji Cawasji dedicated certain adjacent houses and shops the rents whereof were intended for the support and maintenance of the said Agyaree which was built by Rustomji Cawasji in one of his properties with his own private funds. This endowment is not evidenced by a contemporaneous document. There is no evidence before me as to the terms of this endowment except that they were dedicated for the Agyaree or fire temple. ( 17 ) THE conveyance dated December 19, 1842, created a trust in respect of other properties in Domtallah Street which were not covered by the original endowment. This trust of December 19, 1842, lays down the mode of management of this trust estate during his life-time and also after his death. The provision for management, in other words the appointment of trustees does not follow the ordinary law. This trust of December 19, 1842, lays down the mode of management of this trust estate during his life-time and also after his death. The provision for management, in other words the appointment of trustees does not follow the ordinary law. ( 18 ) THEREFORE, at this stage after December 19, 1842, there is not one endowment or trust but there are two, one endowment made prior to 1842 and a trust made on December 19, 1842. The properties covered by these two deeds are separate and different. They were made at different points of time. They were created in different modes. The provisions for management of the endowment flow from the general law and the management of the trust follow the provision made therein. The one common factor is that both are for the benefit of Agyaree or fire temple. The other common factor is that the properties have been completed and irrevocably conveyed by the order thereof subject to the provisions of the respective endowment and the trust deed. ( 19 ) THE deed dated March 5, 1902, came into existence in these circumstances. ( 20 ) THE two sons of Rustomji apparently fell out and there was disputes as between them as to their own rights and obligations to the trust estate which was referred to the arbitration of two gentlemen. The arbitration, however, not only settled, if they could be settled, the disputes between these two trustees but in reality made a trust of properties which were already conveyed and which could not be conveyed by further and set out or made rules and regulations for this composite rolled up trust in which the two sons were interested. The trust deed of 1902 rolled up together the properties of the earlier endowment and the trust of 1842. The rules and regulations created new and common terms for the endowed properties and the trust properties. These schemes of the Arbitrators were adopted by the then trustees in 1902. This was not registered and was lost and was not relied upon either party. ( 21 ) HENCE, in 1919, a declaration of trust which in fact was a creation of a trust was made more or less in terms of the Award of the arbitration and the deed dated March 5, 1902. This was not registered and was lost and was not relied upon either party. ( 21 ) HENCE, in 1919, a declaration of trust which in fact was a creation of a trust was made more or less in terms of the Award of the arbitration and the deed dated March 5, 1902. ( 22 ) IN these circumstances, the question for consideration arises whether the declaration of trust deed dated June 6, 1919, is in accordance with law. ( 23 ) THERE are three essential things in a trust or an endowment. Firstly, there must be an author of the trust or the endowment. Secondly, there must be beneficiaries. Thirdly, there must be a trust property. ( 24 ) THE trust property is the most vital condition, for, in its absence there can be no trust at all whether the trust is private or public or charitable or otherwise. It receives vitality or life only when there are trust properties and when properties are transferred by sellers to the trustees for the trust. It was said by Vice-Chancellor Bacon, in (1) Warrinor v. Robert, (1873) 16 Equity 340 (348), inter alia, as follows: that the one thing necessary to give validity to a declaration of trust - the indispensable thing - I take it to be, that the donor or grantor or whatever he may be called should have absolutely parted with the interest which had been upto the time of the declaration should have effectually changed his right in that respect and put the property out of his power, at least in the way of interest. The observation was quoted with approval by Sir Jessel, M. R. in (2) Richard v. Delbridge, (1874) 18 Equity 11. This concept, in my opinion, incorporated in the provisions of the Indian Trusts Act. Section 3 of the Indian Trusts Act, deals with other aspect, inter alia, in these words: a trust is an obligation to the ownership of property. . . . the subject-matter of the trust is called 'trust property' or 'trust money'. Section 5 which deals with the modes of creating trust of immoveable property and trust of moveable property lend s support to it. Section 6 provides, inter alia. Subject to the provisions of section 5. . . . . . . . the subject-matter of the trust is called 'trust property' or 'trust money'. Section 5 which deals with the modes of creating trust of immoveable property and trust of moveable property lend s support to it. Section 6 provides, inter alia. Subject to the provisions of section 5. . . . . the trust property and (unless the trust is declared by Will or the author of the trust is himself to be the trustee) transfers the property to the trustee. ( 25 ) SECTION 8 provides that -the subject-matter of a trust must be property transferable to the beneficiary. It must not be merely beneficial interest under a subsisting trust. This is also a condition precedent to an endowment, whether it be private or public whether it be charitable or otherwise. ( 26 ) IT follows from this that those who created the trust must be owners of the trust property and must be capable of transferring their interest in the trust properties. ( 27 ) IN this case the properties subject to the endowment were already dedicated to the fire temple and the properties mentioned in the trust deed dated December 19, 1842, have also been conveyed in trust. In these state of affairs there was no right, title and interest which the heirs could transfer to this rolled up or mixed trust sought to be made on June 6, 1919. Therefore, nothing passed under the said declaration of trust which could be called a property except possibly the utensils and few other things. In any event, it could not pass any title in respect of the properties which had already been the subject-matter of the endowment prior to 1842 and the properties covered by the trust deed of 1842. Therefore, in my opinion, the most essential thing necessary for the creation of a trust is non-existent in the case of the trust of declaration of trust as it has been termed made on June 6, 1919. Hence, it is a void trust and consequently a nullity. ( 28 ) THIS point as to the void character of the trust deed was raised in the written statement. There was, however, no issue on the point. The matter was discussed at the time of the argument. Hence, it is a void trust and consequently a nullity. ( 28 ) THIS point as to the void character of the trust deed was raised in the written statement. There was, however, no issue on the point. The matter was discussed at the time of the argument. The point arises out of undisputed documents as in the case of (3) Kamala Devi v. Takhatmal, AIR 1964 SC 859 . Hence, in my opinion, it is open to me to give a finding on this vital question of law. ( 29 ) IT is also a well-known law relating to trust that the sole beneficiary or all the beneficiaries can give a different direction to the trust by their common consent in the absence of incompetence on the part of any one or more of the beneficiaries. This rule has been summarized in Underhill's Law of Trusts and Trustees (10th ed. , p. 421): if there is only one beneficiary, or if there are several (whether entitled concurrently or successively) and they are all of one mind and he or they are not under any disability, the specific performance of the trust may be arrested and the trust modified or extinguished by him or them without reference to the wishes of the settler or trustees. ( 30 ) THE same law has been at one stage, in any event, was followed in the case of endowment by the Hindus though it seems to me that is possibly not good law any more. This also can be done under the Indian Trust Act. Therefore, the trustees could not by themselves under an agreement, whether it be based on the Award or otherwise change the course of the trust and, so as to say, extinguish the previous endowment created before December 19, 1842, and the trust to create on December 19, 1842, and create a new rolled up trust to cover the properties of the endowment and the trust. ( 31 ) IT is now necessary to consider whether the endowment created originally before 1842 was a private or public trust. This has not been dealt with in the trust deed dated December 19, 1842. The trust deed only dealt with the question of the trust created by it of the properties mentioned therein. ( 31 ) IT is now necessary to consider whether the endowment created originally before 1842 was a private or public trust. This has not been dealt with in the trust deed dated December 19, 1842. The trust deed only dealt with the question of the trust created by it of the properties mentioned therein. ( 32 ) THERE is no written document to evidence the endowment made prior to 1842 at any rate, it has been placed before me by either party and it does not appear from the admitted documents that there was a document in writing. ( 33 ) THE parties before me are Parsees. There is no known law of their land or origin, codified or otherwise. Their law is not reduced into writing. Hence, the question for consideration is which law will govern them on the subject. It appears from certain passages of a book which was referred to in course of argument that when the Parsees came to India they did not bring the law with them and there was no unanimity as to the law which would be applicable to them. It appears, however, that at an early stage after their migration to India there was an agreement between the Raja of Sanjoy and the Parsee community, who were living there, that the law applicable to the Hindus would also be applicable to the Parsees. A controversy or disputes, however, arose between the members of the Parsee community for they were not always agreeable to the application of Hindu law in their personal law. These disputes and the further view expressed by the Court that the Parsees were to be governed by the law of England, as opposed to the law of Gentoos, led to the codification of certain branches of law relating to succession, but it had not covered all the aspects of the law relating to the Parsees. ( 34 ) IT is obvious in this case that in the creation of the endowment the laws of the Hindus were followed, for, according to the English law, this dedication to a fire temple may be considered as superstitious and beyond the reach of charity. ( 34 ) IT is obvious in this case that in the creation of the endowment the laws of the Hindus were followed, for, according to the English law, this dedication to a fire temple may be considered as superstitious and beyond the reach of charity. Therefore, if validity is to be given to this document or endowment which is not disputed or challenged before, it seems to me that the Parsees, so far as this branch of law is concerned, were governed by Hindu law. In Hindu law the mere fact that an idol has been established does not itself create debattar. It seems to be likewise correct to say that mere building of the fire temple did not create the endowment. It is only when the temple was accompanied by endowment of properties that it became an endowment of properties that it become an endowment in the sense that a debattar becomes. It has been stated in Mukherjee's Hindu law of Religious and Charitable Trust (2nd ed. , P. 142) that a religious trust by way of debattar can come into existence only when the property is dedicated for worship or service of the idol. ( 35 ) IN Hindu law, again, where there is a document, the same will prove the terms and conditions of the endowment. In the absence of document it is permissible to prove the nature and the terms of dedication or endowment. In Hindu law, various kinds of evidence have been taken into consideration in the determination of the question whether a trust is a public or private trust. This has been discussed at length by Mukherjee in his book on Hindu Law of Religious and Charitable Trust (P. 185 ). In this case, as I have already mentioned, there is no contemporaneous document or entry in any books or records maintained by the estate. The only evidence is the evidence which appears in the trust deed dated December 19, 1842. If this is permissible to be taken into account, then it is a private trust. The only other evidence is a considerably remote evidence which is, however, admissible because it shows a course of conduct. They are the recitals which are to be found in the deeds dated March 5, 1902, and June 6, 1919. If this is permissible to be taken into account, then it is a private trust. The only other evidence is a considerably remote evidence which is, however, admissible because it shows a course of conduct. They are the recitals which are to be found in the deeds dated March 5, 1902, and June 6, 1919. There it is clearly stated that it is a public trust, but it will be noticed that they have improved upon the words of the trust dated December 19, 1842, by incorporating the words 'for the Parsee inhabitants of Calcutta'. It also appears from their own conduct in the matter, that is to say, reference to the arbitration that they have treated at that point of time the trust as a private trust, otherwise there could be no question of reference to the Arbitrators all disputes arising in a public trust. It is also in evidence that, until this suit no outsiders participated in the trust, there is no evidence that the outsiders took part in it and it is not also in evidence that any outsider was ever appointed a trustee. Therefore, on a consideration of all matters before me, it would seem that the endowment was also in the nature of a private trust. ( 36 ) I have used the words 'it seems to me' and not the words 'i hold' for the reason that, in view of the pleadings, this question is not before me, and since it has been argued at length, I thought that I would express my views on the matter. This does not, however, mean that I have come to a firm finding on this point. ( 37 ) IT may be said that the deed of December 19, 1842, was really a deed of accretion or addition to the original endowment. In my opinion, on the facts and the deeds as they are, this view cannot be accepted. This question of accretion or addition at one time caused considerable divergence of judicial opinion in this Court. This controversy, however, now at rest unless the Supreme Court makes contrary announcement in an appropriate case. It is now firmly held that, unless there is an unconditional gift or endowment to the original trust, the two gifts or endowments are distinct and separate in law, each to be governed by its own conditions and terms. This controversy, however, now at rest unless the Supreme Court makes contrary announcement in an appropriate case. It is now firmly held that, unless there is an unconditional gift or endowment to the original trust, the two gifts or endowments are distinct and separate in law, each to be governed by its own conditions and terms. This is dealt with elaborately in Mukherjee's Hindu Law of Religious and Charitable Trust (2nd ed. pp. 195-198 ). In this case, it follows from the absence of any document and any other evidence as to the terms of the endowment, that the sebaits or trustees of the original endowment are the heirs and legal representatives of Rustomji Cawasji, the creator of the endowment. In the case of the trust deed, however, the trustees are not in the position of sebaits but they are in the position of trustees, known to English law, and the trustees do not follow the ordinary law if the Hindu Law is applicable to the Parsees but follow the specific provisions in the trust estate whether after the death of Rustomji Cawasji his two sons were to be the trustees with power to appoint others and after the death of either of them the survivor will be the trustee with power to appoint other or others. Therefore, this does not follow either the points of time the subject-matter of the two dedications or trusts are different. Hence, in my view, this cannot be called an accretion to the original endowment though without doubt it is for the benefit of the same temple or Agyaree. ( 38 ) IT is now necessary to examine the trust created on December 19, 1842, in order to find out whether it was a private or public trust on the basis of my finding that the trust or declaration of trust created on June 6, 1919, is void and a nullity. The more material points of the said trust deed are as follows: -. . . . . . . The more material points of the said trust deed are as follows: -. . . . . . . in trust from and out of the rents and profits of the said bazaar hereditaments and premises to pay and disburse all and every charges and expenses of Agyaree or the place of worship for the Parsees built by the said Rustomji Cawasji and situate in Doomtallah in the town of Calcutta and to, for or upon no other use trust intent or purpose whatsoever. . . . . ( 39 ) THE law as to private and public trust is now beyond dispute. It has been authoritatively stated by the Supreme Court in the case of (4) Deokinandan v. Murlidhar (1956) SCR 756 (759), inter alia, as follows: -the distinction between a private and public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. ( 40 ) THE distinction is broadly this. If it is meant for a large number of undeterminable persons or unidentifiable persons, it is a public trust. It is a private trust when it is for specified persons or a small class of persons. Hence, if the trust was for the benefit of the Parsee community as a whole as opposed to the family members or heirs of Rustomji Cawasji including his female line, then it is a public trust. If, however, the benefit is confined to the family members including those in the female line, then it is obvious that it is a private trust. In my opinion, the trust deed by itself does not indicate that it was for the benefit of the Parsee community as a whole. The words 'place of worship for Parsees' are, in my opinion, only an explanation of the word 'agyaree'. These words by themselves do not, in my opinion, impress this trust with the character of a public trust. If Rustomji Cawasji meant it to be a public trust, there was not difficulty in expressing it as it has been done by his successors in the deed of March 5, 1902, and June 6, 1919. These words by themselves do not, in my opinion, impress this trust with the character of a public trust. If Rustomji Cawasji meant it to be a public trust, there was not difficulty in expressing it as it has been done by his successors in the deed of March 5, 1902, and June 6, 1919. He might have used the same words or similar words to indicate that it was for the Parsee community as a whole. ( 41 ) IF the trust of June 6, 1919, is void, then no further question as to whether it is a private or public trust can and does arise. ( 42 ) THE question whether the trust dated June 6, 1919, was a private or public trust may now be considered on the assumption that the trust deed was valid in spite of the infirmities mentioned by me hereinbefore, the creators or the makers of the trust dated June 6, 1919, have clearly mentioned that the said Rustomji Cawasji built thereon with his own private funds and Agyaree (fire temple or place of worship) for the Parsee inhabitants of Calcutta professing Zoroastrain religion situate at Doomtallah Street, now known as Ezra Street, and known as the Rustomji Cawasji Agyaree. Thereafter, this is also repeated at one or more places of the said document. Therefore, on the footing of this document it is clear that it was a public trust. ( 43 ) IT is now necessary to turn to a question which was not raised. This refers to the consent decree passed by this Court. It, however, appears both in the plaint and the written statement. They have both relied upon it. Therefore, the question for consideration is whether these proceedings debar the Court from finding that the declaration of trust made on June 6, 1919, is void and a nullity. The parties are prima facie bound by a decree whether passed upon consent or on contest. There are, however, exceptions to this rule. A consent decree is void when the agreement upon which it is based is void. It may be void because it is tainted with illegality or is against public policy or is by a person totally incompetent to contract. ( 44 ) IN my opinion, the Court cannot by its approval make what is void and non-existent in law a thing which is a legal binding and enforceable. It may be void because it is tainted with illegality or is against public policy or is by a person totally incompetent to contract. ( 44 ) IN my opinion, the Court cannot by its approval make what is void and non-existent in law a thing which is a legal binding and enforceable. They are void and nullities and can be ignored by the Court in any subsequent proceeding arising collaterally or otherwise even though they have not been set aside by suits. The trust properties, which were already the subject-matter or an endowment and a trust, cannot again be the subject-matter of a new trust. Hence, the heirs of Rustomji Cawasji, parties to the deed of June 6, 1919, could not create a trust of the properties of the endowment and the trust. Hence, it is void and decree based on the same is equally void and nullity. , ( 45 ) THE consent of the Advocate-General has not been placed before me either in the earlier suit and the Originating Summons or in this suit though it has been referred to and not challenged by the opposite party to this suit. The consent, I take it, is in accord with the plaint, that is to say, on the basis of the rolled up and void trust of June 6, 1919. Even if it be said that the consent was as to the trust dated December 19, 1842, it is immaterial for the breach of trust is not founded on the relative trust properties but relates to the properties covered by the endowment made prior to December 19, 1842. There was obviously no consent as to this endowment. Hence, there was no proper consent. It has been held over and over again that in the absence of a proper consent the whole thing is illegal and void. In (5) Chand Bibi v. Esmail, AIR 1949 Cal 21, though it was held that compromise of a suit relating to public trust was prima facie against public policy, yet the court had jurisdiction to sanction it if it was not detrimental to the interest of the trust and was lawful. This is binding on me. It may, however, be de distinguished on facts. In my opinion the compromise was unlawful and against public policy. This is binding on me. It may, however, be de distinguished on facts. In my opinion the compromise was unlawful and against public policy. This question, however, has been left open by the Privy Council and, so far as I am aware, it has not been concluded by a pronouncement of the Supreme Court that a suit as to a public trust can be compromised in the manner it was done or could be compromised at all. Hence, in my opinion, the consent decree is void and a nullity and is not binding on the parties and consequently the Court can come to a finding that the decree is void. ( 46 ) IT is now necessary to turn to the question of breach of trust alleged in the plaint. ( 47 ) IN the plaint reliance has been placed upon the two conveyances dated December 19, 1842, the net effect of which was that a trust was created in respect of a property known as Rustomji bazaar for the maintenance and upkeep of the Agyaree built by the said Rustomji Cawasji. In course of time, the trustees sold the trust properties covered by what has been shortly described as Rustomji bazaar and converted the same into cash. The securities mentioned in para 2 of the plaint amounting to Rs. 1,86,300 representing the cash proceeds or in any event a part thereof. There is no allegation in the plaint as to breach of trust of these securities or the income thereof. The allegations only relate to the collection of rents of immoveable properties which are not the subject-matter of this trust. Hence, the plaintiff cannot succeed on the basis of the trust created in 1842 whether it be a private trust or a public trust. In the trust deed of June 6, 1919, premises Nos. 19, 20, 21, 21a, 21b, 21c and 21d Parsee Church Street, Calcutta, and premises Nos. 20, 20a, 20b, 21, 22, 23/1, 23/2, 24, 25, 26, 27, 30 and 31 Ezra Street, Calcutta, are mentioned. The breach of trust alleged in the plaint is directed against the collection of rents in respect of these properties. These properties, as I have already indicated, had already been the subject of an endowment prior to December 19, 1842. 20, 20a, 20b, 21, 22, 23/1, 23/2, 24, 25, 26, 27, 30 and 31 Ezra Street, Calcutta, are mentioned. The breach of trust alleged in the plaint is directed against the collection of rents in respect of these properties. These properties, as I have already indicated, had already been the subject of an endowment prior to December 19, 1842. I have already held that the trust made on June 6, 1919, which sought to include these immoveable properties, is void and a nullity. Hence, again the case of breach of trust cannot be founded on this deed dated June 6, 1919. Moreover, the endowment in respect of these properties, namely, the dedication by Rustomji Cawasji to the temple of the properties in and around the Agyaree prior to December 19, 1842, have not been pleaded in the plaint. Therefore, no breach of trust on the basis of the terms of the endowment made by Rustomji Cawasji can be made and proved in this case. It is, however, necessary to deal with this question of breach of trust on the assumption that the decree is operative as a matter of abundant caution for it was argued at length on behalf of the parties. ( 48 ) THE consent decree made certain provisions as to the collection of rents, payment of moneys into the Bank and also for reserve funds and for supplying monthly statements by the managing trustee to his company-trustees in this case, the defendant to the plaintiff. They are as follows: - (5)THE defendant shall as and when any rent is recovered without making any deductions therefrom pay it into the trust account with the Imperial Bank of India, Calcutta, and immediately thereafter send the Bank's Pay in Slip Books to the other Calcutta trustees for their inspection and verification of such payments. (6)THE trustees shall set apart such portion of the income of the trust, funds, as may not be immediately required, for meeting such expenses as the trustees shall think fit and accumulate the same as a reserve fund to meet any unforeseen and emergent expenses in connection with trust premises and the Agyaree. (6)THE trustees shall set apart such portion of the income of the trust, funds, as may not be immediately required, for meeting such expenses as the trustees shall think fit and accumulate the same as a reserve fund to meet any unforeseen and emergent expenses in connection with trust premises and the Agyaree. The said reserve account shall be styled as Rustomji Cawasji Church Reserve Fund Account and shall be maintained on the Imperial Bank of India and shall be operated by not less than three trustees which shall always be operated by not less than three trustees which shall always include the defendant and the plaintiff No. 3. (9)the defendant shall each month send to each trustee a detailed signed statement of monthly receipts and disbursements of the trust. The plaintiff No. 3, Framji C. H. Rustomji shall also send similar statement to each trustee. ( 49 ) THE statements for the months of May, July, September, October, November and December, 1951 and January, February and April, 1952 are admitted documents. In each of the statements particulars of rents collected during the accounting months are given and at the bottom the amount of rent collected and paid into the Bank are also mentioned. In each of the statements it was clearly suggested that the rents collected by the defendant every month was being paid into the Bank in terms of the consent decree and no part of it was being kept in his hands. It further appears from the said monthly statements that several tenants were in arrears and some for several months. ( 50 ) ON March 2, 1952, the defendant sent a statement of receipts and disbursements. It also gives the names and amounts collected from several tenants aggregating a sum of Rs. 3,058-4-0 without giving the dates when they were collected and the month or months on which they were collected. Thereafter, there is an item, balance in hands as above-stated Rs. 1,493-8-6 followed by an item, paid into the Bank Rs. 84-2-0. This mode of giving particulars of rents collected by the defendant and splitting up the balance in two items, one in hands and the other paid into Bank, are clear departures from the previous statement of account sent by the to his co-trustees. 1,493-8-6 followed by an item, paid into the Bank Rs. 84-2-0. This mode of giving particulars of rents collected by the defendant and splitting up the balance in two items, one in hands and the other paid into Bank, are clear departures from the previous statement of account sent by the to his co-trustees. The plaintiff greatly relied on this letter to prove their case of breach of trust against the defendant for here for the first time the defendant makes a disclosure that he had not deposited all the rents after disbursement into the Bank but had kept a hidden reserve of Rs. 11,493-8-0 in his hands from the rents collected in the previous months and not shown in the previous months and not shown in the previous statements of accounts. ( 51 ) IN Mukherjee's Hindu Law of Religious and Charitable Trust (3rd ed. , p. 351) it is stated that falsification of accounts is not keeping of accounts at all. In my opinion, the keeping of moneys in his hands contrary to the express provision of the trust dated June 6, 1919, and consent decree and concealing the same from the company-trustee is also a breach of trust. ( 52 ) IT may be observed now that there is a paragraph in the letter dated March 2, 1962, before particulars of the receipts disbursements, proceeds of rents and other things are given, which is in these terms: i sent you herein the detailed statements of receipts and disbursements for February, 1952. There is a balance of Rs. 1,493-8-6 in hand. In order to meet the mobed's requirements of fund to bring the Kadmee Alat from Bombay by car, as per previous correspondence on the subject, there being no reserve fund in terms of the decree in spite of the repeated requests made to Mr. Framji C. Rustomji to do so, it was considered by me most urgent and necessary to keep the required funds in reserve to meet this emergency. But my company-trustees not having come to any decision on the subject of Kadmee Alat so far, a sum of Rs. 1,058 is being deposited by me in the Bank to be utilized for that purpose. But my company-trustees not having come to any decision on the subject of Kadmee Alat so far, a sum of Rs. 1,058 is being deposited by me in the Bank to be utilized for that purpose. ( 53 ) IT is well-known if a party relies on the admission of the opposite party, he must rely on the admission as a whole and cannot support part and rely upon it to support his case and ignore another part which militates against his case. ( 54 ) THEREFORE, the admission appearing or implied from the particulars under the heading process of rents, balance in hands as above-stated and 'paid into Bank' must be read subject to the contents of the first paragraph of the letter which has been quoted above and if so read it suggests to say the least an extenuating circumstance. ( 55 ) THE question of removal, however, is a question which brings into its orbit other consideration besides breach of trust. It is not determined by the attitude of the parties involved. The primary consideration before the Court is the welfare of the trust. In the previous suit there were allegations of breach of trust against the defendant. These were, however, not persisted and a consent decree followed. Therefore, it cannot be said whether he did in fact commit the breach of trust or not on a previous occasion. ( 56 ) IT is clear from the above paragraph that the reserve fund was kept in view of the dilatory and undecisive attitude of the other trustee. This I am constrained to hold in view of the absence of the defendant from the box and the absence of disclosure and reliance upon the correspondence referred to by the defendant. It may be mentioned that I made an attempt to have this document on record. The plaintiff produced certain documents, but those documents were not admitted. The defendant further stated that these being very did not admit these documents produced by the plaintiff which were disclosed at this belated stage of the suit. ( 57 ) THE intent of the settler was to keep the management to his family. The contesting trustees belong to the same family. ( 58 ) THE breaches of trust are not grave more particularly having regard to the concurrence of the co-trustees. ( 57 ) THE intent of the settler was to keep the management to his family. The contesting trustees belong to the same family. ( 58 ) THE breaches of trust are not grave more particularly having regard to the concurrence of the co-trustees. ( 59 ) IT is also clear that the defendant did pay officer this money without delay. ( 60 ) IN these circumstances, in my opinion, even if I were of different opinion on the other questions I would not have directed the removal of the defendant. ( 61 ) IN the result, the issues are answered as follows: issue No. 1 : If was not pressed before me that properties were secular. Issue No. 2 : If there was a trust, was it a private trust or a public trust? ( 62 ) IN my opinion, the trust refers only to the declaration of trust or trust dated June 6, 1919, it is void and no question of it being private or public can and does arise. In case the trust dated June 6, 1919, is not void, then it is a public trust. In case, however, this issue also covers the trust dated December 19, 1842, then the said trust was a private trust. Issue No. 3 : Has the defendant committed any breaches of the trust and/or breaches of the contract decree on the grounds mentioned in para 5 of the plaint? In the view that I have taken of the trust deed of June 6, 1919, and the consent decree made in the matter where the Originating Summons and the suit were consolidated, no question of breach of trust arises. In case the trust dated June 6, 1919, is valid, there was a breach of trust. In case this issue also covers the breach of trust in respect of the trust deed of December 19, 1842, then it follows from my findings that there could not be any breach of trust as alleged in the plaint for the breach of the trust directed against the defendant does not cover the properties mentioned therein or the securities which were substituted in its place thereafter. Issue No. 4 : To what relief, if any, is the plaintiff entitled? ( 63 ) IN the result, the suit is liable to be dismissed and is dismissed. Issue No. 4 : To what relief, if any, is the plaintiff entitled? ( 63 ) IN the result, the suit is liable to be dismissed and is dismissed. ( 64 ) CONSEQUENTLY, the Official Receiver subject to his filing of accounts and payments of all costs, charges and expenses, if any, will stand discharged and the Official Receiver will make over to the plaintiff No. 4 Framji C. H. Rustomji and the plaintiff No. 5, defendant, and the plaintiffs Nos. 4 and 5 and the defendant will receive separately and distinctly the properties of the endowment which include the immoveable properties and moveable properties other than securities and likewise separately and distinctly the securities which are the balance of the sale proceeds of the trust properties covered by the deed dated December 19, 1842. They will keep the properties of the endowment and trust separately and manage the properties of the endowment in the same way and with the same right and obligation as the sebaits of a Hindu debattar do and the trust properties under the deed of trust dated of December 19, 1842, as the trustees thereof. ( 65 ) THERE is no evidence that the endowment provided for remuneration of the trustees or sebaits howsoever they may be called. The trust of December 19, 1842, again does not mention any remuneration of the trustees. It is for the first time in the Award that the provision for payment of surplus funds was introduced and, thereafter, in the subsequent deeds provision was made for payment of the remuneration to the meaning trustee. In the view that I have taken of the arbitration proceeding and the Award following thereupon and the deed dated June 6, 1919, in my opinion, no sebaits and trustees can claim or is entitled to any remuneration. Hence, in future the sebaits and trustees should not receive any remuneration either as sebaits of the endowment or trustees of the trust estate until and unless schemes or a scheme framed hereafter by the Court permit the same. In view of my findings there will be no order as to costs. Each party will bear his own costs. Appeal dismissed.