' MUNIB AKHTAR, By means of the application presently under consideration, C.M.A. 9987 of 2009, the defendants No,1 to 3 seek rejection of the plaint under Order VII, Rule 11, C.P.C. The application arises in the following circumstances.
2. The plaintiffs are tenants in a building known as Sir Jehangir Kothari Mansion ("the Building"). The Building belonged to the defendant No,1, Sir Jehangir Kothari Trust ("the Trust"), of which the defendants No,2 and 3 are the trustees ("the Trustees"), and the case of the plaintiffs is that in a manner contrary both to the constitutive document of the Trust, and the relevant provisions of law, the Trustees have purported to dispose off and sell the Building. In essence, the case of the plaintiffs is that the Trust is a trust created for public purposes of a charitable nature and hence comes within scope of section 92, C.P.C. According to them, the permission of the court was necessary before the property of the Trust could be sold off, and since no such permission was obtained by the trustees in relation to the Building, the purported sale, being contrary to law, is a nullity. They further contend that the relevant provisions of the Trust (which was set up by Sir Jehangir Kothari by means of his last will and testament) in any case also prohibit the sale of the immovable properties, including the Building, belonging the Trustees are prevented from entering into any such transactions. They have accordingly sought appropriate declaratory and injunctive relief from the Court.
3. The defendants Nos.1 to 3, in their application seeking rejection of plaint, took a number of grounds, of which only one was pressed at the hearing of application. It is common ground between the plaintiffs and the defendants Nos.1 to 3 that the Trust is a public trust for charitable purposes and thus, comes within the scope of section 92, C.P.C. However, the defendants themselves rely on this section to contend that the suit is barred in terms thereof and hence the plaint is liable to be rejected. Learned counsel for the defendants submitted in this context that a suit pursuant to section 92, C.P.C., which deals with public charities, could only be brought by the classes of persons specified therein, of which only one class is relevant for present purposes, namely, "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General". Learned counsel submitted that the plaintiffs were merely tenants in the Building and did not come within the scope of foregoing provision, which had a well- established and well understood meaning. Thus, according to learned counsel, the plaintiffs had no locus standi at all to institute the present suit, and the same being barred by law meant that the plaint had to be rejected. Developing his case learned counsel submitted that it was clear from a bare perusal of the plaint itself that the suit had been filed as a gross abuse of the process of law, since the suit patently did not come within the terms of section 92, C.P.C. Learned counsel pointed out that even if the Building was sold, the position of the plaintiffs as tenants could not be disturbed except in accordance with law and they would simply cease to be the tenants of the Trust and become the tenants of the new owneRs, Insofar as the contention that the sale of the property was violative of the provisions of the constitutive document of the Trust, learned counsel submitted that the subject property did-not form part of the immovable properties owned by Sir Jehangir Kothari at the time of his death, when the trust provisions of his will become operative. In fact, according to him, the property was purchased subsequently by the then trustees from the other assets of the Trust, and thus did not in any way come within the scope of any restriction imposed by Sir Jehangir Kothari. Learned counsel also contended that the Trustees had ample powers, while remaining within the framework of the Trust, to sell, dispose off, alienate or otherwise deal with any property of the Trust, other than those expressly provided for in the constitutive document itself (for convenience, herein after referred to as the "Trust Deed"). He submitted that in the present case the Trustees had come to the conclusion that the purposes and objectives of the Trust could be better served if the Building were sold off, and the proceeds of such sale invested elsewhere. The sale was thus a bona fide exercise of their powers as such by the Trustees. Learned counsel placed reliance on Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid and others PLD 1988 SC 283 and Begum Hafizunnisa Qureshi v. Shaikh Muhammad Hussain and others 2003 CLC 1156, a single Bench decision of this Court, placing particular reliance on the latter decision.
4. Learned counsel for the plaintiffs opposed the grant of the application under consideration. He firstly contended that section 92, C.P.C., as properly interpreted, required the trustees of a public charitable trust in all cases to obtain permission of the court if they wished to sell, alienate, mortgage or otherwise dispose off any immovable property of the trust. He further contended that the prohibition contained in the Trust Deed in the present case was fully attracted and applicable to the Building, and hence even in terms thereof the Trustees could not have entered into the impugned sale transaction. Insofar as the application of section 92, C.P.C. Was concerned, learned counsel submitted that the suit did not come within the scope thereof, and therefore the contention raised by learned counsel for the defendants in this regard was without force. In this context, he referred to the prayer clause of the plaint and submitted that the substantive relief sought in terms thereof clearly fell outside the scope of section 92 C.P.C. Learned counsel placed reliance on Muhammad Siddique v. Bhupendra Narayan Roy Chowdhury and others PLD 1992 Dacca 643 and Khadim Hussain and others v. Ata Muhammad and others PLD 1967 Lahore 915..
5. I have heard learned counsel for the parties and have examined the record with their assistance and considered the case-law relied upon by them. Before proceeding further, it would be pertinent to note that the Trust was set up by Sir Jehangir Kothari in his last will and testament, which was drawn up on or about 2-2-1933, and the probate of which was obtained from the Court of the Judicial Commissioner Sindh on or about 24-6-1936. For present purposes, it will be necessary to consider paragraph 11 of the will which provided as follows:--- "11. I Give, Devise and Bequeath all the Rest Residue and Remainder of my estate and effects of whatsoever nature or kind and wheresoever situate including my immovable property situated on the Bunder and Napier Roads, Karachi, known as the "Jehangir Kothari Building" my building known as the "Jehangir Kothari Building" behind the Old Small Causes Court Building in the Runchore Quarters, my building known as "Upna Villa", my Saddar Bazar property known as "Mohan Terrace" and "Sayenna Crescent" subject to what is provided in respect thereof in paras 6 and 7 above and my land at Clifton unto My Trustees to be held by them in trust for the benefit of Orphans and Orphanages throughout the World and the poor and Suffering throughout the World, the said Trust to be named the Sir Jehangir Kothari Trust. I expressly direct that none of my immovable properties forming part of my residuary estate except my land situated at Clifton, Karachi, shall be sold or have their names altered. And I confer upon My Trustees full powers of management of my immovable properties forming part of my residuary estate including power to lease the same for any term or terms of years not exceeding twenty one; so that subject only to the absolute restriction that they shall not sell or otherwise dispose of the said immovable properties (except my land at Clifton) My trustees shall have the same power of management and control as if they were the absolute owneRs, And I direct My Trustees to insure against loss or damage by fire etc., all the immovable property vested in them on my death."
6. It. Will be seen from the respective submissions of learned counsel for the parties that both are in agreement that section 92, C.P.C. Is applicable in the facts and circumstances of the present case.
The points on which learned counsel are at variance with regard to the section are two. Firstly, learned counsel for the. Defendants contends that the suit, as framed, comes within the scope of section 92, C.P.C., and such a suit could only be brought by the classes of persons mentioned therein, and the plaintiffs do not come within any one of those categories. Learned counsel for the plaintiffs on the other hand contends that the suit as framed does not come within the scope of section 92, C.P.C. Secondly, learned counsel for the plaintiff contends that section 92, C.P.C. Is applicable in all cases in respect of the sale, exchange, alienation, etc. Of immovable property which constitutes part of the corpus of the trust, whereas learned counsel for the defendants submits that this is not the proper interpretation of the scope of the section, and that in the present case the Trustees had ample power to sell off the Building without first applying to the court. In my view, the following three questions arise from the respective submissions of learned counsel, and need to be addressed for a proper disposal of the present application:---
(a) Whether the scope of the suit comes within the ambit of section 92, C.P.C. And if so, whether the plaintiffs come within the any of the classes or persons mentioned therein?
(b) Whether the prohibition regarding the sale of immovable properties contained in paragraph 11 of Sir Jehangir Kothari's last will and testimony whereby the Trust was constituted are applicable to the Building?
(c) Whether, on its proper interpretation the trustees of a public charitable trust must in all cases obtain the permission of the court before selling, mortgaging, alienating, transferring, exchanging etc., the trust property?
7. Insofar as the first question is concerned, it is well-settled that a consideration of whether a suit comes within the scope of section 92, C.P.C. Is to be determined on an examination of the plaint as a whole, A and for this purpose one has. To consider the substance of the claim and not necessarily be limited by the form in which the suit may have been brought. Reference may in this regard be made to the Begum Haffizunnissa Qureshi case (supra), where, relying on the Fakir Shah case (supra), it was observed as follows:--- "Similar view was expressed in Fakir Shah and others v. Mehtab Shah Pir Bukhari Masjid Committee and others PLD 1989 SC 283 in the following terms:-- 'It will be seen from the aforesaid provisions that in order of file a suit under section 92, C.P.C. The following conditions must be fulfilled---
(1) There must exist a trust for a public purpose df a charitable or religious nature.
(2) The plaint must either allege that there is a breach of trust or that the directions of the Court are necessary for the administration of the trust.
(3) The suit must be a representative one on behalf of the public and not for the assertion of the personal rights of the plaintiffs.
(4) The relief claimed must be one of the reliefs enumerated in section 92.'
' If all the above said conditions are satisfied in regard to a suit then such a suit can only be filed in accordance with the procedure laid down in section 92 and an action in any other form will be barred. Some of the principles which are well-settled in this connection are that in order to attract the applicability of this section it has to be seen whether the suit is for vindication of a public right; and for this purpose the substance and not the form of the suit must be looked at. Another principle laid down is that the contents of the plaint will determine the maintainability of the suit and the attraction of the bar contained in section 92." (pp. 1166-67)
' When the plaint in the present case is considered in the light of the foregoing principles, it is quite apparent that the suit does come within the scope of section 92, C.P.C. It is, as noted above, an admitted position that the subject property belongs to a public charitable trust. Indeed, since the primary grievance of the plaintiffs is that according to them the Trustees have failed to comply with the requirements of section 92, C.P.C., it is hardly open to them to at the same time, contend that the scope of their suit falls outside the purview of that section. The plaintiffs cannot have it both ways. They cannot, at one and the same time, contend that there has been a violation of the section and on the other, contend that they are themselves not bound by what has been provided therein. The object of section 92, C.P.C. Was explained in the Khadim Hussain case (supra) relied on by the plaintiffs themselves in the following terms (with specific reference to clause (h) of subsection (1), which is a provision of a general nature, and permits the court to grant "such other or further relief' as may be required): --- "We are now left with section 92(1)(h). This, of course, on a first reading seems to encompass any form of suit within its folds. Such an interpretation would not, however, be in consonance with the intention of the framers of the law. Section 92 was framed as a clog to wasteful and frivolous litigation against the trustees and for providing for efficient administration of the trust property by one of the methods provided therein as is clear from clauses (a) to (g). To construe sub-clause
(h) so as to enlarge its scope would not only be against this intention of the Legislature because if it was so intended it would not have been necessary to classify the relief which was to be covered by section 92 in the section itself. By doing so, the Legislature has made it clear that it had no intention of giving a wide scope to section 92. Even otherwise such an interpretation would be against the principle referred to above that if a law restricts the established jurisdiction of a Court it shall be construed strictly." (pp. 920-21; emphasis supplied)
' When the substance of the plaint is considered in light of the foregoing principles, it is abundantly clear that the grievance of the plaintiffs is in relation to matters that come within the scope of subsection (1) of section 92, and in particular, clause (0 thereof, which relates to the sale, mortgage, exchange etc. Of the trust property. Although learned counsel for the plaintiffs referred to para 15 of the plaint whereby the plaintiffs expressed an apprehension that the purchaseRs, of the subject property might obtain "an illegal eviction order and give away the possession of all the above tenants to some other persons or tenants" and to the declaration sought in clause (d) of the prayer clause, in my view, these references are not the substantive grievance raised by the plaintiffs. As correctly noted by learned counsel D for the defendants, a tenant can only be evicted in accordance with law and a mere change of ownership does not result in eviction.
8. Since the suit clearly comes within the scope of section 92, C.P.C., the next point that requires consideration is whether the plaintiffs come within any of the categories of persons by whom alone such a suit can be instituted. Subsection (1) of section 92, as presently relevant, provides as follows:--- "In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Provincial Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the trust is situate, to obtain a decree--
(f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged;...."
' It will be seen from the foregoing that a suit as above can be brought either by the Advocate- General himself or by "two or more persons, having an interest in the trust", subject to the condition that they have obtained the consent in writing of the Advocate-General. The persons who can have an interest in the trust within the meaning of section 92 are well-established, and they certainly include trustees and the beneficiaries. Equally importantly, the suit must be brought in a representative capacity on behalf of the public at large and not to enforce a private or an individual claim or right. Reference in this. Regard can again be made to the Begum Hafizunnissa Qureshi case, where after considering earlier case law on the subject, it was observed as follows:-- - "The ratio decided in above cases can be summarized as follows:---
(i) There must exist a trust for a public purpose of a charitable or religious nature.
(ii). The suit must be a representative one on behalf of the public and not for the assertion of the personal rights of the plaintiffs.
(iii) The relief claimed must be one of the reliefs enumerated in section 92.
(iv) A suit filed without consent/permission of Advocate-General, is not competent, plaint is to be rejected/suit is to be dismissed." (p. 1167; para 19)
' A perusal of the plaint shows that the plaintiffs have not brought the suit in a representative capacity for the benefit of the public at large. Although a halfhearted averment has been made in para 11 of the plaint, namely that the plaintiffs are not only the tenants in the Building but also beneficiaries of the Trust, that is only for cosmetic purposes, and does not, in my view, meet the requirements of law. It is clear that the plaintiffs are asserting individual rights, which are personal to themselves and have not brought this suit for the benefit of the public at large. In my view, therefore they are not "persons having an interesting the trust" within the meaning of section 92, C.P.C., and therefore the first question posed in para 6 above must be answered in the negative.
9. While the foregoing answer to the first question is, in a sense, dispositive of the application under consideration, and indeed of the suit itself, it is nonetheless necessary to consider the other two questions that have arisen. The reason is that section 92 is intended to be a shield protecting the trustees from frivolous and fictitious litigation. It is not however, intended to provide them with a bolt-hole that, in effect, enables them to act in such a manner as they deem fit, safe in the knowledge that unless and until a suit is brought against them by a very limited category of persons, their administration of the trust is safe from scrutiny, even if they may be acting in a manner contrary to law or the trust deed. In my view, if a suit is filed by persons who do not come within the categories enumerated in section 92, but the averments made in the plaint, on the face of it, show prima facie that there may have been a violation of that section or of any of the provisions of the trust deed, then the court ought not to ignore a potential illegality that has been brought to its notice. The reason is that in the case of a public charitable trust, the class of beneficiaries is usually so broad that it would be relatively rare that two or more of the beneficiaries are able to step forward and bring the illegality to the attention of the court. A public charitable trust is, by definition, for the benefit of the public and the court must discharge its responsibility as a guardian of the public interest. Therefore, in my view, the court does have an inherent jurisdiction and power to take notice of any illegality that has been brought to its attention, even though the suit in terms of which such illegality is brought to light is itself fatally flawed. The court ought in such circumstances to exercise its inherent jurisdiction to make such orders and directions as may be deemed appropriate, even if the direction is only to refer the matter to the Advocate-General for his consideration and such action as may be necessary. Alternatively, the court may in appropriate circumstances refer the matter to the "appropriate government" in terms of the Charitable Endowments Act, 1890. But in any case, the Court ought not, as a general rule, ignore any illegality that has been brought to its attention in relation to a public trust simply because the suit in terms of which the issue is raised must ultimately fail. It is for this reason that, in my view, it is necessary also to consider the remaining two questions posed in para 6 supra.
10. The second question relates to whether the Building comes within prohibition contained in the eleventh paragraph of Sir Jehangir Kothari's last will and testament. This paragraph has already been produced hereinabove. It is clear from a reading thereof that Sir Jehangir Kothari drew a distinction between two types of properties, both of which constituted the remainder of his estate, and which were to constitute the corpus of the Trust. Firstly, there were those immovable properties regarding which Sir Jehangir Kothari expressly provided that the same were not to be sold or to have their names altered, except for his land situated at Clifton, Karachi. The other category was of course, those properties that did not fall within the foregoing prohibition. The plaintiffs have, along with the plaint, annexed the sale deed dated 7-3-2006 whereby the present Trustees have transferred the Building to the vendees named therein. Two of the recitals of the said sale-deed provide as follows:--- "AND WHEREAS in pursuance of the directives so enshrined in the Will, the then Trustees (Executors), after the demise of Sir Jehangir Kothari, from the corpus/assets of the said Testator/Settler had purchased an immovable property, viz. Plot admeasuring approximately 2013 square yards, known as (Mama) Mansion, situated at the junction of Abdullah Haroon Road and Inverarity Road, bearing Survey No,4, Old Survey No,F-15-7A, Sheet No,SB-5, from the Central Bank of India Ltd., a company incorporated under the Companies Act, and having its registered office at Bombay.
' AND WHEREAS the said Indenture of Sale was executed at Karachi, on 10th March, 1938, bearing Registration No,436 at pages 374 to 383, Vol.480 of Book-I."
' As is clear from the foregoing recitals, the Building was acquired by the trustees after the Trust had been constituted, i.e., after Sir Jehangir Kothari's death. Nothing has been stated in the plaint that would contradict the statements of fact made in the foregoing recitals. Since in my view, the appropriate interpretation of paragraph 11 of Sir Jehangir Kothari's last will and testament is that the immovable properties mentioned therein, which were subject to the restrictive covenant, were only those properties which were part of his residuary estate at the time of his death, the Building does not come within the scope thereof. In other words, the terms of the. Trust constituted by paragraph 11 does not in and of itself prohibit the sale of all immoveable properties of the Trust. The second question posed in para 6 must therefore also be answered in the negative.
11. I now turn to the third, and in many ways the most important, of the questions that have been raised before me. This relates to the proper scope and interpretation of section 92, C.P.C. Before considering the said section, one point requires to be mentioned. For present purposes, public charitable trusts can be regarded as falling into two distinct categories. Firstly, there are those trusts that are constituted under the general law of the land, and the present Trust falls in this category. The second category is of public charitable trusts that are constituted under some specific or special rule of law, which is not of general application.
' An obvious example of the latter category is a waqf, which is established under the laws and rules applicable to muslims and is a concept peculiar to Islamic Law (or, at it is sometimes known as, muslim personal law). Since public charitable trusts of the latter category are created under some specific or special rule or provision of law that may not be I generally applicable, the application of section 92 itself may therefore be different in the case of a public charitable trust created under the general law on the one hand, and a trust created under some special or specific provision on the other. Again, the case of. a waqf provides a good illustration. It is fundamental to the law of waqfs that the muttawalli is not the owner of the waqf property. The question of whether or not, and if so how, the waqf property can be alienated, sold or disposed of must obviously be resolved on this basis, and consistently with this fundamental principle applicable to waqfs. On the other hand, the trustees of a public charitable trust that has been created under the general law of the land are, in law, the owners of the trust property (although of course, that ownership comes attached with onerous obligations and duties), and such a trust must therefore be dealt with on that basis.
Indeed, in the present case, paragraph 11 of Sir Jehangir Kothari's last will and testament expressly provides that the trustees of the trust thereby created have the "same power of management and control as if they were the absolute owners" of the trust property. With this preliminary point in mind, I now turn to a consideration of section 92.
12. When section 92 is examined, it will be seen that it becomes applicable if either (i) there is an alleged breach of the trust, or (ii) the directions of the court are deemed necessary for the administration of the trust. If either of these conditions is made, and the matter falls within any one of the clauses (a) to (h) then it becomes necessary to obtain a decree in relation thereto from the court. The question that therefore arises is as to when would the directions of the court be "deemed necessary for the administration" of a public charitable trust. As contended by learned counsel for the plaintiffs, this would be so in all cases. On the other hand, according to learned counsel for the defendants, it would depend on whether the trustees considered it appropriate and necessary to obtain an order from the court. In my view, and with respect, neither view can be accepted. The interpretation urged by learned counsel for the plaintiffs is too narrow and if accepted, it would, in effect, obliterate the requirements imposed by section 92 itself. The reason is that if section 92 were to apply in all cases, then it would be unnecessary to consider whether obtaining a decree was deemed necessary for administration of the trust; these words would effectively be rendered otiose. On the other hand, the interpretation urged by learned counsel for the defendants puts the matter too broadly. If that interpretation were accepted that would mean, in effect, that the matter would be determined on the basis of the subjective satisfaction of the trustees. In my view, the correct and proper interpretation is that the requirement that the direction of the court be "deemed necessary for the administration" of the trust does not apply to all cases and situations. The question as to whether and/or when it applies is to be determined on an objective basis. If a reasonable person, having knowledge of all the relevant facts and circumstances of the particular situation, would conclude, in relation to that situation, that it is necessary for the administration of the trust that the directions of the court be obtained, then a decree would be required, but not otherwise. In other words, if, on an objective basis, the requirement is found to apply, and the matter comes within any of the clauses of subsection (1), then it is mandatory to obtain a decree from the court. However, if on an objective basis, the requirement is found not to apply, then it is not mandatory to obtain a court decree, even though the matter may come within the scope of any of the clauses of subsection (1). Insofar as the alienation of trust property by the trustees, in the case of a trust created under the general law of the land, is concerned, the following statement of the law is to be found in Halsbury's Laws of England (Vol. 5, Fourth Edition, para 808): "808. Powers at common law.--- Before the disposition of charity land was regulated by statute it was held that charitable corporations and trustees had power to sell, lease or mortgage charity land, but that the transaction was liable to be set aside unless it was shown to be beneficial to the charity, the onus to establish that being on the purchaser."
(The statute referred to is of course, an English law, which does not apply here.) One of the cases cited in support of the foregoing proposition is Attorney-General v. South Sea Company (1841) 4 Beav 453; 49 ER 414, where it was held as follows (at p. 416):--- "It is the duty of the trustees of a charity so to manage and dispose of the property entrusted to them, as may best promote and maintain the charitable purposes of the founder.
' It is plain that, in ordinary cases, a most important part of this duty is to preserve the property; but it may happen, that the purposes of the charity may be best sustained and promoted by alienating the specific property. This law has not forbidden the alienation, and this Court, upon various occasions, with a view to promote the permanent interest of the charities, has not through it necessary to preserve the property in specie; but has sanctioned its alienation.
' That which the Court might have done, upon its own consideration of what would have been beneficial to the charity, might have been done by trustees, upon their own authority, in the exercise of their legal powers; and however imprudent it may have been in trustees to take so great risk upon themselves, and in other parties to contract with them and take conveyances from them under such circumstances, that the; yet, if upon consideration it should appear upon subsequent investigation, that the transaction was fair and beneficial to the charity at the time, it does not appear to be the duty of the Court to set it aside, merely because circumstances have occurred, in which, at the time of inquiry and after the lapse of many years, it may be supposed that a greater revenue might have been derived from the specific property, than from the property substituted on the alienation complained of."
13. It follows from the foregoing that the trustees of a public charitable trust do have the power, subject always to the terms of the trust itself and to section 92 (as explained above), to alienate, sell or dispose of the trust property. Of course, if on the basis of the objective test noted above, it is concluded that they ought to have obtained the directions of the court under section 92, and they fail to do so, then any sale or other alienation by them would be liable to be set aside. If, however, the matter does not come within the scope of the section as so applied, then the action taken by the trustees would be well within their poweRs, Of course, it would in all cases be open to the trustees to approach the cburt, and they may well be advised to do so by way of abundant caution. That they can do so if they want to is also made clear by the words "whether contentious or not" used in subsection (1). But the question here is whether it is mandatory for them in all cases to first obtain a court decree under section 92 before alienating the trust property, and to this the answer ought, in my view, to be given in terms as above.
14. Before proceeding further, the phrase "whether contentious or not" that appears in subsection
(1) requires some further consideration. It is perhaps possible to take the view on account of these words, which permit the trustees to approach the court even in a non-contentious situation, that the legislative intent was that they must do so in all matters covered by the various clauses of subsection (1). However, that reading is not, in my view, borne out when the section is read as a whole, and its object and purpose is kept in mind. Such a reading would be too restrictive, and drastically curtail the powers of the trustees. Take the example of clause (f), which is under consideration. It will be noted that this clause is not limited to immovable property; it applies to the "trust- property", whether in whole or in part. Suppose that the corpus of a public charitable trust comprises of securities of various kinds, and the trustees are empowered to vary, from time to time, the mix of the portfolio of securities. As is obvious, their position would be untenable if they had to obtain a court decree each time they wanted to exercise this power: even if they were selling off only a small part of the portfolio, and exchanging it for other securities, that would become a lengthy and cumbersome exercise. In my view therefore, the proper interpretation of the scope and applicability of section 92 is as given in the paras hereinabove.
15. When the facts and circumstances of the present case are examined in light of the foregoing, there is nothing, in my view, that would have made it mandatory for the Trustees to have first obtained a decree from the Court under section 92 before selling the Building. It has been submitted by learned counsel for the defendants that the Trustees felt that the objects and purposes of the Trust would be better served by selling the Building and investing its proceeds elsewhere, and nothing has been stated by the plaintiffs or brought on the record that would contradict this submission. In my view, on the record as presently available, a reasonable person, independently applying his mind to the facts and circumstances of the present situation, would not come to the conclusion that the directions (and hence, the decree) of the Court were necessary for the administration of the Trust as presently relevant, i.e., with regard to the sale of the Building.
Accordingly, the third question posed in para 6 above also stands answered against the plaintiffs and in favour of the defendants No,1 to 3.
16. In view of the foregoing analysis and discussion, this application must, in the end, be allowed and accordingly the plaint is hereby rejected. All other pending applications, having become infructuous, are also disposed of as such.