YUSUFALLY GULAMHUSSEIN Vs. YUSUFALLY CASSAMALLY

JUDGEMENT

(1.) This is a suit filed by two brothers, Yusufally and Yacoobally, sons of Gulamhussein Chhatriwalla, against their cousin Yusufally Cassamally and against the Advocate General of Bombay seeking to obtain reliefs for removal of defendant No. 1 Yusufally Cassamally from his office as a trustee, for accounts, for appointment of a new trustee, for transfering the property in the possession of defendant No. 1 to the new trustee so appointed, and for an order for payment to the plaintiffs a sum of Rs. 5,000, being the amount mentioned in paragraph 8 of the plaint, and other amounts which may be found due to them under the trust deed dated August 19, 1929. The suit was filed with the sanction of the Advocate General under Section 92, Civil P. C.

(2.) The averments made in the plaint are these. On August 19, 1929, one Valbai widow of Ladha Lakhamsey created a trust of a property known as Chhatriwalla Building situate at Wadia Street, Tardeo, subject to the powers and provisions contained in the deed of trust. Under the deed of trust benefit was reserved for various parsons during their lifetime, and directions were given for payment of diverse amounts of money to other persons on the fulfilment of certain conditions. It was also provided that Rs. 25 per month be given as alms to poor "Ishnasari Khoja" widows as the trustees thought proper, and on the anniversary of the death of the settlor and of her husband in each year a sum not exceeding Rs. 75 be spent on each Yusufally Gulamhussein and Anr. vs. Yusufally Cassamally and Anr. (12.04.1951 - B... Page 3 of 8 y Gulamhussein and Anr. vs. Yusufally Cassamally and Anr. (12.04.1951 - B... Page 3 of 8 occasion on Majlis ceremonies, and a bequest of Rs. 500 a year was provided for giving 'dinner' on the 19th day of Ramzan of each year to the poor of the Khoja community in Bombay at the Khoja Ishnasari Masjid or some other place as the trustees may select. It was further provided under the deed of trust that after the death or remarriage of Kulsumbai (one of the beneficiaries under the deed of trust) the trustees shall, out of the corpus of the trust property, set apart a sum which when invested in authorized securities would yield a net income of about Rs. 1,560 per annum and that the same be spent every year in performing a "majlis" in the name of Imam Hossein and giving 'a dinner' to the Khoja Jamat, and the trustees were directed that after the trusts mentioned in Clause (2), Sub-clauses (b), (c), (e), (f), (g) and (h), were fully performed or ceased, they should out of the corpus of the trust property set apart a sum which when invested in authorized securities shall yield a net income sufficient to continue the trusts mentioned in Clause (2), Sub-clauses, (c), (d) and (h), and shall continue to perform such trusts in perpetuity; and if there remained any balance the trustees should divide and pay the same in equal shares among and to the grandsons or the settlor who attained the age of 21 years. The plaintiffs were beneficiaries under the deed of trust, both under Clause (2) (f) of the deed of trust and under the residuary Clause (4). Inasmuch as benefit was reserved under the deed of trust to charity, and it was claimed that defendant 1 had not acted in accordance with the deed of trust, though he was a trustee, and that he had committed breaches of trust, sanction of the Advocate General to the institution of the suit was asked for and obtained.

(3.) On the averments made in the plaint it was obvious that the plaintiffs sought to mix up reliefs which were entirely personal to themselves with reliefs which they claimed as representatives on behalf of charity. Those reliefs could not be joined together in a single suit, and therefore the plaintiffs were called upon to elect to proceed with the reliefs in respect of either their personal rights or those made in a representative capacity.