A D VEHVALWALA Vs. M C H RUSTOMJI

JUDGEMENT

(1.) The facts leading to this suit are as follows : One Rustomji Cawasji prior to 1842 built an Agyaree, fire temple, for the place of worship of the Parsees in Calcutta. The said temple stood on a large area of land where Rustomji Cawasji had built houses or rooms.

(2.) On December 19, 1842, Rustomji Cawsasji conveyed the property known as Rustomji's bazaar lying at Beliaghata in the suburbs of Calcutta to his two sons Dadabhoy Rustomji and Maneckji Rustomji for a consideration of the sum of Company's Rs.14,000. On the same day, i.e. on December 19, 1842, the said Dadabhoy Rustomjiand Maneckji sons of Rustomji Cawasji, conveyed the very same property, Rustomji's bazaar, toothier father Rustomji Cawasji for a consideration of Company's Rs. 10 in trust with the object: - from and out of the rents and profits of the bazaar hereditaments and premises to pay and disburse of and from the charges and expenses of Agyaree or the place of worship for Parsees built by the said Rustomji Cawasji and situate in Doomtallah in the town of Calcutta and (2) for or upon no other use, trust, intents and purposes whatsoever. It was provided also in that deed that Rustomji Cawasji should be the trustee during his life-time with power to nominate a new trustee or trustees, and upon his death it was further provided that his two sons would be the trustees with like power to appoint a new trustee or trustees and further upon the death of one of his sons, the heirs, executors and administrators of such survivor would be the trustees with like power to appoint one or more trustee or trustees. In 1852, Rustomji Cawasji died and upon his death Dadabhoy Rustomji and Maneckji Rustomji, his two sons, became the trustees. There were disputes between the two trustees. The disputes were referred to arbitration and in 1883 the Arbitrator made an Award. In 1890, Dadabhoy Rustomji died and Maneckji Rustomji commenced to act and became the sole trustee. In 1891, Maneckji Rustomji died without appointing any trustee. In these circumstances, in 1902, the then children of Maneckji and Dadabhoy, five in number, made a declaration of trust and/or made a trust in accordance with the terms of the said Award. Hirjibhoy Maneckji and Kaikhasroo Dadabhoy Rustomji, two of the then trustees, died. In 1919, the surviving three trustees appointed the three sons of Hirjibhoy Maneckji Rustomji as additional trustees. Therefore, in the result there were six trustees. On June 6, 1919, the said trustees made a declaration of trust and/or made a trust more or less in terms of the Award evidently because the said deed of declaration made on March 2, 1902, was lost.

(3.) In 1920, one of the trustees Jamshedji Hirjibhoy Maneckji Rustomji died. In 1921, Cawasji Maneckji Rustomji, another trustee, died. He had nominated in writing his son-in-law Dinshaw Romer as trustee in his place. In 1923, there was a decree in the Bombay High Court directing the existing truss to execute a deed of appointment in favour of Dinshaw Romer. In 1924, Rustomji Hirjibhoy Maneckji Rustomji, one of the then trustees, resigned. In 1924, the then trustees Cursetji Hirjibhoy Maneckji Rustomji, Cawasji Dadabhoy Rustomji and Framji Dadabhoy Rustomji appointed dinshaw Romer as a trustee. In 1932, Rustomji Hirjibhoy Maneckji Rustomji died. In 1932, Framji Dadabhoy Rustomji died. In 1933, Cawasji Dadabhoy Rustomji died leaving only two surviving trustees, Cursetji Hirjibhoy Maneckji Rustomji and Dinshaw Romer. In 1934, the then three trustees mentioned above appointed in writing three other trustees Framji Cursetji Hirjibhoy Rustomji, originally the plaintiff No. 4, Maneckji Cursetji Hirjibhoy Rustomji, the defendant, and Khurshedji Cowasji Banaji as additional trustees. It is at this stage that the plaintiff No. 4 Framji C. H. Rustomji, who is the only plaintiff in the suit now, and the defendant Maneckji C. H. Rustomji, who is the only defendant in this suit, appeared in the scene. In 1939, Cursetji Hirjibhoy Maneckji died. In 1949, Maneckji Cursetji Hirjibhoy Rustomji took out an Originating Summons. In 1950, a suit was filed by Dinshaw Dorabji Romer and Khurshedji Cowasji Banaji and Framji Curstji Hirjibhoy Rustomji against Maneckji Cursetji Hirjibhoy Rustomji for breach of trust and removal of the defendant trustee. On August 23, 1949, Mr. Justice S. N. Banerjee directed that a notice of application of the Originating Summons should be served on the Advocate-General who represents charity. This was done. On February 1, 1951, both the Originating Summons and the suit were settled and a decree in terms of settlement was passed. On April 30, 1952, Dinshaw Romer and Khurshedji Cowasji Banaji, who were residents of Bombay, retired from their position as trustees. On May 19, 1952, one Ardeshir Dinshaw Vehvalwala, Pallarji Kaikaus Madan and Framji Cursetji Hirjibhoy Rustomji filed the present suit against Maneckji Cursetji Hirjibhoy Rustomji with the consent in writing of the Advocate-General of West Bengal for, inter alia, removal of the defendant from the office of trust created by or by virtue of indentures dated December 19, 1842, and June 6, 1919, appointment of new trustees, directions for accounts of and enquiries into the defendant's dealing with the trust properties, payment of the amount found due from him upon taking of such accounts and other reliefs.