P L D 1957 (W (PLP)

B. Z. KAIKAUS, J.‑

This is a suit by the Advocate‑General for the removal of the trustees of the Dyal Singh College Trust (hereinafter called the Trust) and for appointment of new trustees. The Dyal Singh College Trust was created by the late Sardar Dyal Singh Majeethia by his will dated the 15th of June 1895. By paragraph‑VIII of his will, he directed that the pro perties mentioned in that paragraph shall vest in a committee of trustees "for the purpose of establishing and maintaining a first class Arts College at Lahore." Properties of consider able value, some situated in West Pakistan and some in the East Punjab are mentioned in this paragraph. By paragraph IX of his will, he named nine trustees who were to form a committee and in paragraph XXII, he provided that in case of any of these trustees dying or becoming incapable of acting, the remaining trustees shall forthwith appoint a new trustee or trustees. The Dyal Singh College, Lahore, had been founded in consequence of this will and up to the time of the Partition of India, this College was being run by a committee of the tine trustees appointed in accordance with the will. At the time of the Partition of India, all these trustees left Pakistan and went over to what is now India. One of them, i.e., Dewan Anant Kumar, who was the only one who remained in Lahore till September 1947, and was also the Secretary of the Committee of the Trust, appointed Sheikh Abdul Haque, then Deputy Legal Remembrancer to Government Punjab, and Sayyed Abid Ali Abid, Principal of the Dyal Singh College, as his attorneys for the purpose of managing the affairs of the College. These two persons continued to act as attorneys till the 4th of August 1949, when Sheikh Abdul Haque was appointed a trustee in a meeting of the trustees held in Solan. On the 11th of April 1950, Sheikh Abdul Haque was also appointed the Honorary Secretary of the Trust in a meeting of the trustees held in New Delhi or Solan. On the 26th of November 1952, Sheikh Abdul Haque dismissed all the other trustees on the ground that they had set up a rival College in India called the Dyal Singh College and had refused to make over to him the income of that part of the property of the Trust which was situated in India, to be utilized for the purpose of running the College at Lahore. It has been urged on behalf of the Advocate‑General that one of the reasons why the trustees had been dismissed by Sheikh Abdul Haque was that they had migrated to India and were, therefore, incapable of acting within the meaning of clause XXII of the will of Sardar Dyal Singh Majeethia, and it does appear from a letter written by Sheikh Abdul Haque that this too was one of the reasons, but in the document wherein he recorded the dismissal, I find that he simply referred to the fact of their having migrated to India and did not rely upon it as a ground of dismissal. Sheikh Abdul Haque, nominated eight persons as his co‑trustees on the same date, i.e., 26th of November 1952, and since then the College has been run by this committee of trustees. At least that is the position taken up on behalf of the defendants, though it is urged on behalf of the Advocate General that really it is a one‑man show, Sheikh Abdul Haque being the only person who actually manages the College affairs. Between Sayyed Abid Ali Abid and Sheikh Abdul Haque and also between Sheikh Abdul Haque, and some members of the staff of the College, there has been some litigation to which it is not necessary to refer. The result of it all was that the Advocate‑General was moved and he filed the present suit for removal of the trustees and for appointment of the new trustees. The allegations in the plaint are that neither Sheikh Abdul Haque nor the remaining trustees are validly appointed trustees for those who appointed Sheikh Abdul Haque, had no authority to do so having left this country and having become incapable of acting and the assumption of the control of the entire property of the Trust by these trustees is illegal and void and (2) that there have been various breaches of trust. There are numerous allegations of misappropriation of funds, of misuse of authority, and of mismanagement, but in view of what follows, it is not necessary to refer to them in detail. It has also been urged that the nine trustees, who were members of the committee of the Trust at the time of the Partition of India, have set up a Dyal Singh College at Karnal, and with the funds which are available in India from the income of the property situated in Amritsar and Gurdaspur Districts, they have started a new organisation known as the Dyal Singh College Trust. On account of their migration and on account of these acts, they have become incapable of acting as trustees within the meaning of clause XXII of the will. I just mention this allegation for there is no contest on this point between the parties though it is urged on behalf of the nine trustees that at the time when the previous trustees appointed Sheikh Abdul Hague, they were as yet validly appointed trustees. The defendants to this suit are Sheikh Abdul Hague, the eight trustees appointed by him on 26th of November 1952, and Mr. Abid Ali Abid who had been appointed an attorney by Dewan Anant Kumar, the then Secretary of the Trust. The defendants (with the exception of Sayyed Abid Ali defendant No. 2) denied either that they have not been validly appointed or that there has been any breach of trust. They claimed that the suit should be dismissed with costs. The issues had not been framed as yet in this case and I was hearing the application of the Advocate‑General for appointment of a receiver, when my attention was drawn to an order of the learned Custodian of Evacuee Property dated the 1st of September 1951. It appeared to me on a perusal of that order that by it the Custodian had declared the property of the Trust to be evacuee property to the extent that it would remain vested in the Custodian till trustees were appointed by the Court. If this was a correct interpretation of the order, then the taking of any further proceedings in this case would be unnecessary and the suit would‑have to be decreed and new trustees appointed simply on the basis of that order. In this view of the matter, I called upon both the parties to argue the point., I have heard arguments now and there is no doubt in my mind that the interpretation which I placed on the order is the correct one. As this is going to be the basis of my judgment, I have to explain this matter in some detail. At the time of the Partition of India when non‑Muslims migrated from Pakistan to India, a number of evacuee laws were promulgated one after the other, the general effect of which was to vest the interests of the evacuees in the Custodian of Evacuee Property. The Custodian was, at the same time, given exclusive jurisdiction to decide the question as to whether an evacuee had any interest in any property or not. As already stated the trustees of the Dyal Singh College Trust had migrated to India and as early as February 1948, a question was raised before the Custodian as to whether the Dyal Singh College Trust was or was not an evacuee, and whether its property was to be treated as evacuee property. At that time the law in force relating to evacuee property was Punjab Ordinance VII of 1947 which had come into force oil the 1st of December 1947. Under section 20 of that Ordinance, "evacuee property" and "evacuee" were thus defined :‑ (d) " Evacuee Property " means any property in the Punjab which owing to the recent disturbances, the owner cannot personally occupy or supervise or take delivery of from the place of deposit, or in the case of a corporation property which forms the assets of any business or under taking which has ceased wholly or partially to operate Owing to the said disturbances, and (e) " Evacuee " means an owner of such property. Neither the Dyal Singh Trust nor the Dyal Singh College, Lahore, had ceased to function wholly or partially and regarding the Trust probably as Corporations, the learned Custodian on the 14th. February 1948, passed the following order:‑-- " The Dyal Singh Trust Society, not having wholly or partially ceased to function, is not an evacuee and its property will not be treated as 'evacuee property', within the meaning of Ordinance VII of 1947." Considering that the definition of "evacuee property" quoted above referred only to an owner and had no reference to the interest of any person as a trustee, no objection whatsoever can be taken to this order of the learned Custodian. Ordinance VII of 1947 was repealed only a few days later and was substituted by Act VII of 1948. The definition, of " evacuee " and " evacuee property " changed in this Act and included the interest of a trustee. I quote below, the definition :‑ "(d) " Evacuee " means any person who has been or is absenting himself from West Punjab owing to the late disturbances‑ or who is unable personally to occupy, supervise or take possession of his property in West Punjab, or, in the case of a Corporation, whose business or under taking has ceased to operate wholly or partially owing to the said disturbances or is being operated by an unauthorised person or an agent or a manager appointed after the 15th of August 1947, whose appointment has not been approved by the Custodian. (e) " Evacuee Property " means the property of any evacuee in West Punjab or property which vests in an evacuee under a trust or other instrument." Act VII of 1948 was superseded (at least to the extent of its repugnancy) by Central Ordinance XVIII of 1948. This Ordinance was superseded by Ordinance XV of 1949 and it is that Ordinance which was the law relating to evacuee property in Pakistan till the coming into force of the new Constitution of Pakistan in 1956. After the coming into force of the new Constitution, the Ordinance has, for technical reasons, been promulgated afresh in the same words. The definition of evacuee" and "evacuee property" in Ordinance XV of 1949, is given in section 2 of that Ordinance, the relevant portion of which I reproduce below :‑‑ Section 2. (2)‑"evacuee" means any person who‑ (i) on account of the setting up of the Dominions of Pakistan and India, or on account of civil disturbances or the fear of such disturbances, on or after the first day of March 1947, leaves or has left any place in the territories now com prising Pakistan for any place outside those territories, or (ii) acquires or has acquired, on or after the aforesaid date, in any manner whatsoever, any right to or interest in or benefit from any property which is treated as evacuee property under any law for the time being in force in India, or in any area occupied by India, or (iii) is resident in any place in the territories now comprising India or in any area occupied by India and who for that reason is unable to occupy supervise or manage in person his property in Pakistan or whose property in Pakistan has, whether wholly or partially, ceased to be occupied, supervised, or managed by any person, or is being occupied, supervised or managed by an unauthorised person ; (3) " evacuee property " means any property in which an evacuee has any right or interest, or which is held by or for him in trust, and includes‑ (a) any right or interest in joint Hindu family property which would accrue to the evacuee upon the partition of the same, or (b) property obtained from an evacuee after the twenty eighth day of February 1947 until confirmed by the Custodian". It is also necessary to quote here the relevant part of section 6 which provides for the vesting of evacuee property in the Custodian. It runs :‑ "6. (1) All evacuee property shall vest and shall be deemed always to have vested in the Custodian with effect from the first day of March 1947. (2) Where any evacuee property is property held in trust for religious or charitable purposes, the property shall remain vested in the Custodian only till such time as fresh trustees are appointed in the manner provided by law, and pending the appointment of fresh trustees the trust property and the income thereof shall be applied by the Custodian for fulfilling, as far as possible, the purposes of the trust. The question as to whether the property of Dyal Singh College Trust was evacuee property or not was again raised in some suit filed on behalf of the Trust probably for rent of some building. The question had again to be referred to the Custodian, presumably, in view of the amendment in the law, and on the 1st of September 1951, the Custodian passed an order which I quote below in extenso:‑-- "This is a reference by the Court of the Senior Sub -Judge, Lahore, in which he has raised the question, whether the property of Dyal Singh College Trust is an evacuee property or not ? The reference was heard by the learned Deputy Custodian, Lahore, who had recorded a finding to the effect that the property in question is not evacuee property. He has forwarded the record because an appeal was filed against this finding by Mr. Niazi and the finding, in any case, required confirmation by the Custodian. The position in this case is that the Dyal Singh College Trust is a localized trust created for the benefit of Lahore citizens, by the late Sardar Dyal Singh Majithia. A College is being run with the income of the College Trust property which is of a considerable value. The property is partly situated in Pakistan and partly in Indian territory. The original trustees all migrated at the time of the Partition. Mr. Anand Kumar, who was Secretary of the Trust, sent a power‑of‑attorney in favour of Mr. Abdul Haque, Deputy Legal Remembrancer, and Professor Abid Ali, who is now Principal of the College, authorising them to function on his behalf during his absence. In these circumstances, I, as Custodian, had declared that the property of this trust should not be treated as evacuee property. I did not, in so many words, say that the authority of these two gentlemen to act on behalf of the Secretary of the Trust was recognised but in effect it amounted to a direction in these terms. Under the present law the position is that if the Trustees of a particular trust have all migrated to India the trust would be described as an evacuee but only for a limited purpose. That purpose is that the function of the trust should be carried on under the Custodian's care till such time as a competent Court appoints new Trustees. The same object has been achieved by allowing the two attorneys appointed by Mr. Anand Kumar to function on behalf of the Trust with the tacit approval of the Custodian. If there was any defect in their authority to do so, by the absence of any formal order on my part, I hereby regularise the position by passing an order expressly recognising their authority to act on behalf of the Trust. It is noteworthy that in a resolution of the Trustees, passed on the 4th August 1949, the Trustees unanimously resolved that S. Abdul Haque be appointed a trustee of the Dyal Singh College Trust. By another resolution dated the 11th April 1950, the Trustees further resolved to appoint S. Abdul Haque as Honorary Secretary of the 'Crust Society for Pakistan and he was authorised to operate on the accounts of the Trust Society in the Imperial Bank, Lahore, the Post Office Savings Fund Account, Post Office Five Years Cash Certificates and Post Office 12 Years National Savings a Certificates, He was further authorised to manage the trust property and the Dyal Singh College at Lahore. Now that I have passed the above formal order, the position should be regarded as beyond doubt. The answer to the reference should, therefore, be that although technically the trust property could have been described as evacuee property if no authorisation of the Custodian had been forthcoming, but as the attorneys appointed by the Secretary of the Trust were allowed to function on behalf of the trust and their authority to do so has been now placed beyond dispute by a formal order, the trust cannot be regarded as an evacuee and ipso facto its property cannot be described as evacuee property. Let the record of this case be returned with these remarks". On behalf of defendants Nos. 1 and 3 to 9, it has been urged that by this order the Custodian had in fact declared the trust property not to be evacuee property. In any case, it is urged, the declaration of the Custodian is in these terms and, therefore, whatever may be contained in the body of the order, the effect of the order should be that the property of the Trust was henceforth not evacuee property. It does not need much argument to show that this contention is incorrect and that the order substantially declares to the contrary. From the definition of "evacuee property" and "evacuee" in Ordinance XV of 1949, which I have reproduced above, it will appear that even the interest which a person holds as a trustee becomes evacuee interest if the trustee leaves A the country on account of the disturbances, and such interest then vests in the Custodian though only for a limited purposes. The following sentences in the order of the learned Custodian really puts the matter beyond doubt as to what in fact he has held:‑ "Under the present law in the position is that if the Trustees of a particular trust have all migrated to India the trust would be described as an evacuee but only for a limited purpose. That purpose is that the function of the Trust should be carried on under the Custodian's care till such time as a competent Court appoints new Trustees. The same object has been achieved by allowing the two attorneys appointed by Mr. Anand Kumar to function on behalf of the Trust with the tacit approval of the Custodian". The learned Custodian, when he refers to the present law, refers to it because he considers it to be applicable to the facts before him. The contention of learned counsel for the ‑defendants that he is just stating the law although it has no effect upon the case before him, is altogether unacceptable. The learned Custodian has already in the previous part of his order stated that the trustees had migrated to India. He then considers the effect of this migration and says that the effect would be to make the Trust evacuee although for a limited purpose. He then goes on to state the purpose, namely that the Custodian takes care of the property till such time as new trustees are appointed and explains that the object which the law intends to serve by the vesting of property in the Custodian and by keeping it under the Custodian's care has been served by allowing two persons to function with the tacit approval of the Custodian. Unless the learned Custodian was of the opinion that on account of the migration of the trustees to India the property had vested in him by virtue of section 6 for the limited purpose which he indicated, these observations would be wholly inappropriate. In fact, they are incapable of explanation on any other basis. Learned counsel for the defendants stresses that in the last part of the order, learned Custodian has declared the property to be not evacuee property, but we have to construe the order as a whole. Learned counsel urges that the learned Custodian was regarding the Trust only as a Corporation and that as the Corporation had not ceased to function wholly or partially or as its business was carried on by persons who were approved by the Custodian, he had declared it to be not evacuee property. A simple reply to this is that then the whole reference to the migration of the trustees and the vesting of property in the Custodian for a limited purpose would be out of place. In that case, the learned Custodian would simply have said that, as it was a Corporation which had either not ceased to function or which was managed by the persons which were approved by the Custodian, it was not evacuee property. Although on a reading of the order itself there can be little doubt in one's mind as to what is the true purport of the order, I have also consulted my Lord the Chief Justice who passed this order as Custodian, and he has told me that his intention in passing the order was to hold that it was evacuee property to the limited extent mentioned in the order, that is, it vested in him under section 6 (2) of Ordinance XV of 1949. By virtue of section 6, evacuee property is deemed to have vested in the Custodian since the 1st of March 1947. On account of the order of the Custodian, the trustees of the Dyal Singh Trust had become evacuees and the Dayal Singh College Trust property has become evacuee property since the 1st of March 1947. The trustees, therefore, had no authority to appoint Sh. Abdul Haque as a co‑trustee, and in any case, section 6 (2) envisages that if the trustees become evacuees, fresh trustees will be appointed in their place by a Court. A question then arises as to whether, if I hold that there are no validly appointed trustees in existence, a suit under section 92 of the Code of Civil Procedure can succeed. According to that section, a suit lies either where there has been a breach of trust or where the direction of the Court is needed. In a case where there are no validly appointed trustees in existence, but either breach of trust is not proved or the Court does not go into the question of breach of trust, has the Court jurisdiction to appoint new trustees ? This question has been considered in a number of cases and it has been held that under the second part of the section, that is, the one relating to a case where the direction of the Court is needed, the Court has power to appoint trustees where no validly appointed trustee exists. I may refer, in this connection, to Radha Krishna v. Lachmi Narain (A I R 1948 Oudh 203) ; Abdul Rahim Khan v. Fakir Muhammad Shah (A I R 1946 Nag. 401) ; Neti Rama Jogiah and three others v. Venkatacharuiu and three others (I L R 26 Mad. 450) and M. E. Mitchla and another v. A. M. Mitchla and others (A I R 1938 Rang. 339). It is not necessary to enter into a detailed discussion of this point in view oz the simple argument, that if the fact that there were no validly appointed trustees in existence could not be the basis of a suit under section 92 of the Code of Civil Procedure, the result would be that once a trustee de son tort or a de facto trustee enters into possession or management, he could not be removed at all unless and until breach of trust was brought home to him. By the express words of section .92, no suit for appointment of the new trustee lies apart from that section. It could not be the intention to put the trustees de son tort on the same footing as validly appointed trustees so that they can only be removed for breach of trust and not other wise. The absence of a validly appointed trustee may by itself be harmful for the Trust because, although there is a good deal that a de facto trustee acting on behalf of the Trust may do, he has not all the powers of a validly appointed trustee. If I were to hold that section 92 does not apply I would still say that in view of section 6 of Ordinance XV of 1949, there is power in a Court to appoint new trustees in a case where the trustees have become evacuees. That power may be independently of section 92 of the Code of Civil Procedure, but the power of the Court would be there. I do not feel the need, however, of invoking that power in the present The next point to consider is the decrees that are to be passed. Under section 92, Civil P. C., the Court may appoint any trustees, vest property in the trustees, direct accounts, inquiries and settle a scheme. I will first deal with the question of scheme. A scheme has to be framed though I would naturally conform as far as possible to the scheme of the testator and would only add to it in so far as I may find it to be necessary. The following is the scheme I frame :‑ (1) There shall be a committee of nine trustees in whom the property of the Trust wherever situate shall vest and who shall administer the trust. They will be appointed in the first instance by the Court. On the death or resignation of any of the trustees, or in case any trustee becomes, for any reason, incapable of acting, the remaining trustees shall elect a new trustee to fill his place. (2) There shall be a Chairman of the committee of trustees in whom the executive authority for carrying out the resolutions of the committee of.; trustees shall vest. The election of the Chairman shall be annual. Each Chairman shall hold office till the succeeding Chairman is elected. The first Chairman shall be nominated by the Court. There shall also be a Secretary of the Committee who too shall be entitled to carry out the resolutions of the Committee of Trustees, but subject to the control and supervision of the Chairman. The Secretary too shall be elected by the committee. His election shall be annual and he shall hold office till the next election of the Secretary. (3) The will of the testator by which the Dyal Singh College Trust was created shall be operative except to the extent it is inconsistent with this scheme. Defendants Nos. 1 and 3 to 9 are formally removed from the office of de facto trustee and the following persons are appointed trustees. (1) Mr. Justice Sh. Muhammad Sharif, Judge, Supreme Court, Pakistan. (2) Mir Khurshid Zaman, Commissioner Claims. (3) Mr. A. M. Jan Custodian, Evacuee Property. (4) Mr. Jamil Hussain Rizvi, Minister West Pakistan Government. (5) Mr. Justice A. R. Changez, Judge, West Pakistan High Court. (6) Mr. Yaqub Shah, Retired Auditor General, Pakistan. (7) The Education Secretary to the West Pakistan Government (ex‑officio). (8) The Principal Government College, Lahore (ex -officio). (9) Maulvi Siraj‑ud‑Din Ahmad, Advocate. Mr. Justice Sheikh Muhammad Sharif, Judge, Supreme Court of Pakistan, shall be the first Chairman of the trust. The following decrees are passed :‑

(1) The property of the Trust wherever situate shall henceforth vest in the trustees mentioned above. (2) A scheme is framed in the terms stated above. (3) The trustees and the Chairman of the Trust named above are appointed. (4) Defendants Nos. 1 and 3 to 9 are directed to hand over charge to the trustees appointed by Court. They will. however, be entitled to retain the books of account anti vouchers (subject to orders of Court) till the accounts have been gone into, (5) The accounts of the Trust from 1947 up to date shall he gone into and enquiries made with respect to their correctness in so far as may he necessary. This decree is final with respect to items Nos, 1 to 4 and preliminary with respect to item No.

5. The case shall now come up for further proceedings with respect to accounts and enquiries on 1st March 1957. The newly appointed trustees should be informed by the office as to their appointment. A H. Suit decreed.