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SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI, P.S. KAILASAM AND A.P. SEN, JJ.
In the matter of H. E. H. The Nizams Jewellery Trust.
Civil Appeals Nos. 1105, 1245 and 1269 of 1978 and Special Leave Petns. (Civil Nos. 3648-3649 of 1978
Decided on 31-8-1979.
Advocates appeared
M/s. Rajni Patel, Malini Kapadia, P. G. Gokhale and B. R. Agarwala Advocates for M/s. Gagrat & Co., for Appellant in C. A. No. 1105 of 1978 and for Respondent No. 3 in C. A. No. 1269 of 1978; Mr. O. P. Verma, Advocate and B. V. Sang, Mr. Anil B. Diwan, Sr. Advocate (M/s. B. Parthasarathi and J. V. Suryanarayan Rao, Advocates with him), for Respondent in C. A. No. 1105 of 1978 and for Respondent No. 2 in C. A. No. 1105 of 1978; M/s. S. V. Gupte and S. T. Desai, Sr. Advocates (Mr. A. Subba Rao, Advocate with them), for 19 Respondents Nos. 4, 6 and 7 in C. A. No. 1105 of 1978 and for Appellant in C.A. No.1269 of 1978; Mr. A. K. Sen, and Mr. Anil B. Diwan, Sr. Advocates (M/s. S. S. Husain, J. B. Dadachanji, K. J. John and A. G. Meneses, Advocates with them), for Respondent No.8 in C. A. Nos. 1105, 1245 and 1269 of 1978; M/s. F. S. Nariman and P. R. Mridul, Sr. Advocates (M/s. B. Jaivalu, Dhimant Thakkar, P. H. Parekh, C. B. Singh, Miss Vinneta Caprihan and Mr. B. L. Verma, Advocates with them), for Appellant in C. A. No. 1245 of 1978; Mr. B. A. Zaibala, Dhimant Thakkar, Thakkar, P. H. Parekh and Miss Kamlesh Bansal, Advocates for Petitioner in S. L. P. No. 3648 of 1978; M/s. B. A. Zaibala, Dhimant Thakkar, P. H. Parekh and Mukul Mudgal, Advocates, for Petitioner in S. L. P. No. 3649 of 1978.
– The law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction, and a majority cannot bind the trust estate, as held in In re: HEH The Nizam’s Jewellery Trust, AIR 1980 SC 17 = 1979(4) SCC 602 = 1980 (1) SCR 459.
JUDGMENT
SEN, J.:- In these appeals, one of which is by special leave and the other two on certificate, brought from a judgment of the Andhra Pradesh High Court dated June 12, 1978, the short question is whether that Court was justified in setting aside the alleged sale of 37 items of jewellery belonging to H. E. H. The Nizams Jewellery Trust, effected by the Board of Trustees in exercise of their discretionary power of sale under Cl. 13 of the Trust deed in favour of the appellants and other successful tenderers for Rs. 14.43 crores, and accepting instead the offer of the eighth respondent, Peter Jansin Fernandez for Rs. 20.25 crores made during the pendency of the appeal before it.
2. The facts of the case, so far as they are material, are not now in dispute, and are as follows :
3. The late H. E. H. Nawab Mir Sir Osman Ali Khan Bahadur, the Nizam of Hyderabad, by an indenture dated March 29, 1951, created a trust called H. E. H. The Nizams Jewellery Trust, in respect of 107 items of extremely valuable, rare and priceless jewellery of exquisite design and beauty studded with emeralds, diamonds, saphires, rubies, etc. of the highest quality and purity belonging to him, specified in the First Schedule, and Government securities of the aggregate face value of Rs.10 lakhs, specified in the Second Schedule, for the benefit of his two sons, Prince Azam Jah and Prince Muazzam Jah; two grandsons, Prince Mukarram Jah and Prince Muffakham Jah, two granddaughters, Princess Fatima Fouzia and princess Amina Mirzia; daughter Shahzadi Begum, and his step-brother Sahebzada Nawab Basalat Jah Bahadur.
4. Clause 13 of the trust deed, Ex. A, confers upon the trustees the power of sale of the jewellery, the material portion of which is in these terms:
"13. Subject to the Trusts aforesaid in respect of the articles referred to in clause 3(c), (d), (e) and (f) thereof, during the lifetime of his eldest son Prince Azam Jah (if and so long as the Dynasty of the Settlor continues and Prince Azam Jah succeeds him as the Nizam of Hyderabad) it shall be at the option of the trustees either to keep the said jewels and other articles mentioned in the First Schedule here under written unsold or to sell the same or any part thereof at such time or times and in such manner as they may in their discretion think fit, but subject as aforesaid, after death of the Settlor as well as of the said Prince Azam Jah the Trustees shall sell the said jewels and other articles specified in the First Schedule hereunder written within a period of three years after the date of the death of the survivor of the Settlor and the said Prince Azam Jah and any such sale as aforesaid shall be effected by the Trustees at such price or prices or for such consideration and on such terms as the trustees may in their absolute discretion think fit and either in India or in any foreign country without the trustees being liable or accountable to any person whomsoever for the propriety of or justification for any such sale or for the reasonableness or otherwise of the price or consideration or other terms in respect of the sale of any of the said articles".
5. The said jewellery is kept in the safe deposit vault of the Mercantile Bank Ltd. at Bombay.
6. R. N. Malhotra, Addl. Secretary to the Government of India, Ministry of Finance, Department of Economic Affairs, is the Chairman of the present Board of Trustees of H. E. H. The Nizams Jewellery Trust, as a nominee of the Government of India. The other four trustees are : Prince Muffakham Jah, Zaheer Ahmed, Ataur 20 Rehman and M. A. Abbasi, M. A. Ashruff is the Secretary of the Trust.
7. It appears that Prince Azam Jah died in October, 1970 and thereafter, on July 1, 1972 the trustees submitted a memorial to the then Prime Minister of India to acquire the jewellery as they were of great historical and cultural value and keep it intact as a national heritage, and not allow it to pass into the hands of people who were interested only in their money va
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