HOMI P RANINA Vs. ERUCH B DESAI

JUDGEMENT

(1.) THIS is an action initiated by an originating summons in which the plaintiffs seek determination of the following questions:

(2.) THE plaintiff Nos. 1 and 2 and the defendant Nos. 2 to 5 are the Trustees of the Funds and immovable properties of the Parsi Panchayat of Bombay. On March 25, 1993, the President of the Trust Dr. Aspi Golwala tendered his resignation. According to the plaintiffs, the President of the Board of Trustees has, by long usage and practice, been the senior most trustee and that the Trustees never had the power to appoint or elect the President of the Bombay Parsi Panchayat. Therefore, according to the plaintiffs, after the resignation of Dr. Golwala, the office of the President automatically devolved upon the senior Trustee i. e. the defendant No. 1. However, at the meeting held on March 30, 1993, the defendant No. 3 proposed and the defendant No. 2 seconded that the defendant No. 4 should chair the meeting. The plaintiff Nos. 1 and 2 and the defendant No. 1 then raised an objection that according to the provisions of the Scheme and by settled convention, the senior most Trustee automatically became the President and by virtue of Rule 69 of the Scheme, he was the only person entitled to chair the meeting. Notwithstanding the objection raised by the plaintiffs Nos. 1 and 2 and defendant No. 1, a resolution came to be passed to appoint defendant No. 4 "as temporary Chairman to conduct the meeting till the President of the Bombay Parsi Panchayat is elected. " Thereafter, the defendant No. 3 proposed the following resolution, which was seconded by the defendant No. 2: mr. E. B. Desai shall not continue as temporary Chairman of this meeting and further more shall not occupy the office of the President of the Bombay Parsi Panchayat, and Mr. M. R. Shroff be and is hereby appointed as temporary Chairman to conduct the meeting. " this resolution was carried by majority. Thereafter, the defendant No. 2 proposed and the defendant No. 5 seconded the resolution "that Mr. J. N. Guzder (defendant No. 3) be and is hereby appointed as the President of the Bombay Parsi Panchayat for the term of his office as Trustee. "the defendant Nos. 2 to 5 voted for the resolution. The plaintiff Nos. 1 and 2 and defendant No. 1 objected to the legality and validity of the resolution and also voted against the same. The resolution was carried by majority of 4 : 3. Thus the defendant No. 3 came to be appointed as the President of the Trust.

(3.) IT is the case of the plaintiffs that by long usage, convention and custom, which is deemed to be incorporated in the scheme, the senior most Trustee for the time being automatically assumes the office of the President, and in that view of the matter, it is beyond the competence of a majority of the Trustees or even all the Trustees to modify the Scheme or to change the aforesaid convention, custom and usage and thereby altered the scheme by passing the aforesaid resolutions. The plaintiffs have relied upon the past practice and convention from 1931 to 1993. In Para 16 (b) of the plaint, the plaintiffs have furnished the particulars of the appointments made in the past from 1931 to 1993 i. e. right from the appointment of Sir Cowasji Jehangir (1st Bart) on December 11, 1931 till the appointment of the last President Dr. Aspi Golwalla. It has been pointed out by the plaintiffs that there was no election for the President at any of the meetings. The plaintiffs have placed heavy reliance on the resolutions passed by the Panchayat from time to time in order to show the long standing usage and custom of appointing the senior most Trustee as the President of the Trust.