Every right in law

Recently, someone I know grew more delighted than Christopher Columbus on discovering a nugget of information on my website. However, like Columbus, what he found was not what he was really looking for.

The person wrote to me, "You, as the executive secretary of the Centre for Advancement of Philanthropy (CAP) since inception, have on your website, stated: ‘In case of a difference of opinion on a policy matter, the majority view must prevail. The dissenting trustees may record their dissent, but accept the majority view with dignity and grace or resign.’ If this is the principle you propagate to others, is it not the height of hypocrisy that you do not follow it yourself? Moreover, in the BPP’s (Bombay Parsi Punchayet) case there is a specific covenant set down by the High Court that the majority decision is binding on all and has to be acted upon. In view of the above, you are obliged to either follow the majority view with dignity and grace or resign.”

In another letter he wrote: "A person who does not practice what he preaches is simply living a lie. It is common knowledge now that you hypocritically preach one thing and do quite the opposite. The classic example is seen on the CAP website and in your Hamazor article (Issue 3, 2008), where it is stated ‘a good trustee would respect the right of other board members and staff to differ/disagree and he/she would dissent, if necessary, but accept with grace the majority decision or step down.’”

When I met this friend recently, I tried to explain my point of view. However, he dismissed it as "a stupid reply” and another friend of his guffawed at this retort. I was advised by him to change what I have written or practice what I preach.

The question is, should I "accept with grace the majority decision or step down?” The answer is not so difficult, if seen in the right context.

As per figures obtained by Girish Shah under the Right To Information Act, there are more than 65,000 public charitable trusts registered in Bombay. Poona has more than 30,000. How many among these thousands have a system of electing trustees? The fact is, barring a small handful of trusts, trusteeship is by appointment/invitation and not by a process of election. Typically, the surviving trustees appoint/invite new trustees to fill vacancies on the board as and when the need is felt.

What I have written on my website many years ago (and I see no need to change it) was keeping in mind trusts where trusteeship is by appointment/invitation. Say, for example, I am appointed/invited by the trustees of a charitable trust to join the board and, after accepting the office I find that I am not happy with the style of functioning, or more importantly the policies adopted by the majority, I have the choice of either recording my dissent and allowing the majority decision to prevail, or to step down.

However, does my friend really think I can even dream of stepping down as a BPP trustee, thereby letting down thousands of Parsi Zoroastrians who have reposed faith in my abilities and elected me to the high office? Would it be prudent for me to foist yet another election on the community?

The writer has also referred to "a specific covenant set down by the High Court that the majority decision is binding on all and has to be acted upon.” The covenant he is referring to here is the scheme for electing the trustees of the BPP framed by the High Court!

This person, who is otherwise fairly well versed in trust and property matters is probably aware of the fact that all the funds, assets and properties of the trust are jointly and severally vested in all the seven trustees and where any alienation of trust property is concerned the decision has to be unanimous and not by majority.

For that matter, in a trust where there is no scheme of election, even appointment of a new trustee to fill a vacancy has to be unanimous. "The power to appoint new trustees is the joint act of all the trustees and if they do not agree, the matter becomes one where the court’s intercession must be called for (Mohommad Jaffar vs Mohammad Jan Mohammad).”

The learned Justice Kania further adds, "The act of the majority does not bind the minority so far as the act is beyond the proper sphere of the duty of the trustees. Nor can a majority, in the absence of express statutory authority, pass the legal estate which is vested in all. And when a special power is given to trustees, it cannot be exercised by majority only but all must join.”

I, therefore, have every right in law not just to record my dissent but to even oppose, by due process of law, all acts and policies of my colleagues which I may deem detrimental to the interest of the trust and its beneficiaries.

NOSHIR H. DADRAWALA

noshir101@hotmail.com