BASIL LANG Vs. MOOLJI KARSONJI AND BHAGWAN REVASHANKAR

JUDGEMENT

(1.) This is a motion for the appointment of a new trustee in the place of a trustee who is alleged to be of unsound mind. The applicant is his co-trustee.

(2.) The trust is an old charitable trust of a public or religious nature created by the will of a Hindu lady who died in 1873. This suit was begun in the year 1897, and by orders or decrees of the 29th July 1898 and 11th April 1899 the validity of the trust was established: new trustees were appointed: the charity funds were lodged with the Accountant General to the account of this suit, and the income was directed to be paid to the new trustees.

(3.) In course of time, there have been certain changes of trustees, and for that purpose the parties have adopted a course which seems to me unnecessarily expensive, viz., of applying by motion in Court for the appointment of new trustees. It was said that this course was adopted, because liberty to apply was reserved. I do not find in the orders that any such liberty was in fact reserved to the applicant. Even if there was such liberty, it does not mean that you are obliged to apply in open Court. It means liberty to apply in accordance with the ordinary practice of the Court. Section 40 of the Indian Trustees Act 1866, expressly authorizes a petition; and Rule 75(z) of the Bombay High Court Rules provides for such a petition being heard in Chambers. I think, therefore, that applications for the appointment of new trustees should normally be made by petition or summons to be heard in Chambers. There is all the more reason for doing that in the present case, as the matter concerns the personal incapacity of one of the trustees, and such matters are, 1 think, more properly dealt with in Chambers.