NATHABHAI DEVIDAS Vs. VAGHJIBHAI JHAVERBHAI

JUDGEMENT

(1.) In this matter the learned District Judge on a petition under the Indian Trusts Act, 1882, has purported to remove from their office the trustees appointed by the will of the father of the-minor. This he has done on a petition presented not by the next friend of the minor but by his uncle Vaghjibhai. As the learned Judge in his judgment puts it, although the application refers to other sections of the Indian Trusts Act, viz., 72 and 74, yet it is really founded on Section 73 on the ground that the trustees have become unlit to act in the trust.

(2.) The view generally adopted in the English Courts is that those words imply something in the nature of personal incapacity like, for instance, paralysis or personal unfitness which in many cases has been held to apply to insolvency. In this particular section insolvency has been provided for. But whatever the true construction of the words "unfit or personally incapable" in Section 73 may be, one has also to see who are the new trustees to be appointed by. This section provides that the appointment may be made (a) by the person nominated for that purpose by the trust instrument. There is no such person in the present case, Then (b) if there be no such person, the author of the trust, if alive, may appoint. But the author of this trust is dead. Then we come; to the "surviving or continuing trustees for the time being." But the present appointment has not been made by them. So stopping there Section 73 could not apply. The old trustees obviously have not removed themselves.

(3.) Next if one turns to Section 74: "Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under Section 73, the beneficiary may, without instituting a suit, apply by petition," But the present petition is not by any beneficiary, but by the uncle Vaghjibhai on his own account, He is not, however, even mentioned in the will of the minor's father. Under these circumstances the Court had no jurisdiction to grant the relief asked for on the petition of the 2 present petitioner. And so on that ground alone this order of the learned Judge must be set aside.