ASIF AHMEDALLY PORBUNDERWALLA Vs. SAULAT AKBARALI PORBUNDERWALLA

JUDGEMENT

(1.) By this Notice of Motion, defendant no.7 seeks rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 and also seeks that the suit be summarily dismissed as not maintainable. Defendant no.7 also seeks in the alternative that the issue of limitation be framed and decided as a preliminary issue by this Court. Some of the relevant facts for the purpose of deciding this Notice of Motion are as under :-

(2.) Plaintiff claims to be one of the beneficiary under the Trust Deed dated 12th June, 1972 whereby a trust known as 'Ali Mohamed K. Porbanderwala Family Trust' was set up in respect of the land and building situated at Bandra. Defendant nos. 1 to 4 are the trustees of the said trust. Defendant no.5 is husband of defendant no.1. Defendant nos. 6 and 7 are children of defendant no. 1 and defendant no.5. Defendant no.7 claims to be one of the beneficiary under the said trust. It is the case of the plaintiff that in 1976 defendant nos. 1 and 2 in exercise of their power under the said trust deed and in collusion with defendant no.5 constructed a industrial estate on the portion of the trust property by the name of Amar Industrial Estate. Plaintiff was not given any part of the sale consideration of the industrial units. On 20th June, 1979, defendant nos. 1 to 4 in their capacity of the said trust executed a lease deed in respect of the trust property in favour of defendant nos. 5 to 7 for a period of ninety nine years. According to the plaintiff, the said lease deed provided for payment of Rs.3,000/- per month as lease rental which was totally inadequate. Value of the lease property according to the plaintiff at the material time was about Rs.35,11,000/-. It is the case of the plaintiff that defendant nos. 5 to 7 were placed in possession of the trust property however, did not take any steps to obtain vacant possession of any construction or to construct any building as contemplated in the said trust deed. On 20th July, 1979, plaintiff's grandfather died. On 5th February, 1982, the family arrangement was executed by various members of the family including defendants herein.

(3.) In the year 1991, plaintiff filed a suit (8783 of 1991) in the City Civil Court, Bombay interalia praying for various reliefs including direction to defendant nos. 1 to 5 to render accounts in respect of the said trust and for access to the records and documents of the said trust. Defendant nos. 6 and 7 herein were not parties to the said suit. In the written statement filed by defendant nos. 1, 2 and 5 in the said suit, those defendants denied that any accounts had been maintained by them in respect of the trust. Those defendants relied upon the lease deed alleged to have been executed by plaintiff's grandfather in favour of defendant nos. 5 to 7 herein in respect of the trust property. Those defendants however did not annex copy of the lease deed in the said written statement. In that suit, defendant nos. 1, 2 and 5 to the said suit raised an issue of jurisdiction. The City Civil Court, Bombay therefore framed an issue as under :-