MANHAR SHIVJI SHETHIA Vs. LILAVATI MADHUSUDAN SHETHIA

JUDGEMENT

(1.) THE petitioners-Beneficiaries of the Trust have approached this Court for reliefs against the original respondents 1 and 2. During the Course of the proceedings, respondent No. 1 expired and his legal heirs have been brought on record. The petitioners amongst other reliefs, sought removal of respondents Nos. 1 and 2 as Trustees and consequential relief that some other fit and proper persons be appointed in their place. Relief was also sought seeking accounts from the respondents 1 and 2; for reimbursement of amounts of Rs. 21,398/- along with interest, with a further relief that accounts be made and income due and payable to the petitioner no. 1 be paid towards his life interest of the Trust.

(2.) THE removal of the Trustees was sought amongst others on the following grounds :-

(3.) AT the hearing of the Petition on behalf of respondent No. 2, the heirs of respondent No. 1 and respondent No. 3, who is son of respondent No. 2, it is contended that the Petition is not maintainable under sections 73 and/or 74 of the Indian Trusts Act, as there are contentious issues which cannot be gone into, in an application under sections 73 and 74 of the Indian Trusts act and consequently should be dismissed. On the other hand, on behalf of the petitioners it is contended that this Court apart from exercising its jurisdiction under the Indian Trusts Act is also exercising jurisdiction in equity. It is contended that under section 74 the Court can remove a trustee and the other reliefs are merely ancillary which can be granted by the Court. The petition was filed in 1995; the objection for the first time was raised in 1997. It is submitted that the Court having entertained the petition should not now drive the petitioners to the remedy of a Suit. Apart from that it is contended that equity would require that this Court consider the matter more so considering the respondent No. 1 has expired in the course of the proceedings. As a vacancy has arisen which has not been filled up in the manner required by the Trust Deed, the Court should exercise jurisdiction and appoint a Trustee under section 74 of the Indian Trusts act. Parties have relied on various authorities in support of their respective contentions.