SUSHILA D SHETH Vs. ANAND TRUST

JUDGEMENT

(1.) THIS suit is filed by the plaintiffs claiming various reliefs. Primarily the suit challenges the alleged agreement for sale dated 21st August, 1994 by the trust in favour of Defendant No.6 of the office premises known as No.1016, 10th floor, Raheja Chambers, Nariman Point, Bombay-400 021 on the ground that Defendant No.2 was the sole trustee on 2nd April, 1994 and that defendant No.6 as well as defendant Nos.3, 4 and 5 were not appointed as trustees in accordance with law. This Notice of Motion has been taken out for appointment of Receiver and injunction. An affidavit in support of the Notice of Motion has been filed. Separate replies have been filed by defendant Nos.1, 3, 4 and 9 and defendant No.5. Defendant No.2 has filed a reply to the allegations made in the reply filed by defendant No.5 on behalf of defendant Nos.1, 3, 4 and 9. An affidavit in rejoinder has been filed by the plaintiffs. Defendant No.6 has filed a separate reply.

(2.) BY a deed of trust dated 2nd April, 1978 the settler settled a family trust named "Anand Trust". Under the indenture, defendant Nos.2 and 9 and one Gunvant Vasantlal Sheth were named as trustees. As per clause 2(b) of the Indenture, the Plaintiffs and some of the Defendants are beneficiaries of the trust. Gunvant Sheth died on 8-1-1985. Thereafter Defendant No.6 is alleged to have been made a trustee. Defendant No.1 who is the mother/ mother-in-law of the defendants has renounced the world as from December, 1994. According to the plaintiffs, a meeting was held of the trustees on 2nd April, 1994 wherein new trustees were appointed in place of defendant No.2 in view of the fact that he had been wholly inactive since the year 1990. Defendant No.6 also retired from the trusteeship on 2nd April, 1994. In the same meeting the new trustees agreed to grant a lease to defendant No.6 for a period of 10 years. It is this agreement which is under challenge. On 29th April, 1994 a lease has been entered into in favour of defendant No.6. Thereafter on 19th August, 1994 the trustees have decided to sell the premises to defendant No.6 for a total consideration of Rs.5 lakhs. According to Mr.Thakkar, learned Counsel appearing for defendant No.6, this remains only an agreement for sale and no conveyance has been executed as yet in favour of his client. It is vehemently submitted by Mr.Sakhardande, learned Counsel appearing on behalf of the plaintiffs, that the meeting of 2nd April, 1994 is illegal as there was no quorum of the trustees. According to the learned Counsel, on that day, defendant Nos.2 and 9 were the only trustees, Gunvant Sheth having died in 1985 and defendant No.6 not having been validly appointed as a trustee . Since Defendant No.2 was given no notice of the meeting, he could not have been removed as a Trustee. I do not find much substance in the aforesaid submission. Firstly, defendant No.6 has been acting as a trustee since 1986. She has been operating the bank account on behalf of the trust. In fact, it is the case of the defendant trust that the change in the signatories of the Bank were done at the request of defendant No 2. Furthermore, there is a power given to the trustees by virtue of clause 13 to remove a trustee in case of certain contingencies. Prima facie, I am satisfied that the defendant has been wholly inactive in the trust since 1990. This view of mine is supported from the averments made by the plaintiffs themselves in paragraphs 36, 37 and 38 of the plaint. A perusal of the aforesaid averments shows that the plaintiffs themselves have come with a case that defendant No.2 has been neglecting his duties as a trustee and has permitted defendant Nos. 3 to 6 to take undue advantage of the properties of the trust. In paragraph 37 again the averment is reiterated that defendant No.2 has failed and neglected to fulfil his duties and obligations towards defendant No.1 trust. Thus it would now hardly lie in the mouth of the plaintiffs to say that defendant No.2 had not incapacitated himself from being removed from the trust by virtue of clause 13 of the trust deed. This apart, the suit has been filed by the wife and the daughters of defendant No.2. It has been pointed out by Mr.Reis, learned counsel appearing for the trust, that certain properties of the trust were sold in the year 1987 under the signatures of defendant No.2. No objection whatsoever was raised to the sale of the aforesaid property. In paragraph 18 of the plaint it is averred that shop No.8 was purchased on or about 30th December, 1987 for a total consideration of Rs.2,41,000/- and the same was surrendered on or about 10th May, 1990 for Rs.3,75,000/- under signatures of defendant No.2. Thus it becomes evident that defendant No.2 was active until 1990 but there is no evidence whatsoever of defendant No.2's participation from 1990 onwards.