Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS No.1054-2019 in SCSU 7550-2006
IN THE CITY CIVIL COURT AT MUMBAI.
CHAMBER SUMMONS NO.1054 OF 2019
(CNR No.MHCC01-005676-2019)
IN
SHORT CAUSE SUIT NO.7550 OF 2006.
(CNR No.MHCC01-011150-2005)
1.Chandrakant Sanjiv Prabhu, }
R/o. C-12, Devi Dayal Chawl, }
Tulashi Nagar, Knjur Marg(E), }
Mumbai-400 042. }
2.Ganpati Amrit Prabhu, }
R/o. 402, Pali House, Plot No.390, }
Shankara Matham Road, King's Circle, }
Matunga, Mumbait-400 019. }
(being the trustees of the Trust created }
by Krishna Sheshgiri Prabhu (Deceased) }
under an Indenture of Assignment and }
Deed of Trust dtd.25/01/1950). }...PLAINTIFFS.
VERSUS
Arvindkumar Raghuram Prabhu, }
R/o. Block No.1, 2nd Floor, }
Prabhu Buildig, 289, Reay Road, }
Mazgaon, Mumbai-400 010. }...DEFENDANT.
AND
Pushpalata Varadkanth Kamath, }
R/o. 402, Pali House, Plot No.390, }
Shankara Matham Road, King's Circle, }
Matunga, Mumbai-400 019. }...RESPONDENT
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Shri.Kapil Shetty, learned advocate for the plaintiff.
Shri.V.R.Tripathi, learned advocate for the defendant.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 06/03/2021)
1. This Chamber Summons is taken out by plaintiff No.2 for
claiming the reliefs as under;
(a) That delay, if any, in taking out the present Chamber
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Summons may be condoned.
(b) That this Hon'ble Court be pleased to allow and permit the
plaintiff, to brought on record respondent as plaintiff in the
present suit and the amendment be allowed as prayed as
per the scheduled annexed hereto.
(c) ...
2. Read the affidavit filed in support of Chamber Summons
and affidavit-in-reply filed by the defendant. Heard learned Shri.Kapil
Shetty advocate for plaintiff No.2 and learned Shri.V.R.Tripathi advocate
for the defendant. Perused the entire record.
3. Learned advocate for the plaintiff No.2 argued that plaintiff
Nos.1 & 2 were Trustees but plaintiff No.1 expired in year 2016. He
argued that respondent is the relative of the plaintiff No.2 and as is
provided in the Trust Deed, plaintiff No.2 has appointed the respondent
as new trustee by executing Deed of Appointment in year 2017 due to
which, it is necessary to allow the plaintiff No.2 to join the respondent
as plaintiff to the suit by carrying out the amendment as per the
schedule annexed to the Chamber Summons.
4. As against this, learned advocate for defendant vehemently
opposed the Chamber Summons by submitting that appointment of
respondent as a Trustee is illegal because, according to him, the Trust
being a Family Trust, outsider like respondent cannot be appointed as a
Trustee. He submitted that there is nothing in the affidavit filed in
support of the Chamber Summons to show that respondent is in any
way concerned with the Trust Property. He submitted that as per the
own contention of the plaintiff No.2, death of plaintiff No.1 occurred in
May-2016 yet, this Chamber Summons is taken out in March 2019 and
there is no explanation for the delay. He argued that defendant is the
beneficiary of the Trust Property as defendant is one of the co-owner
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hence, the suit itself is not maintainable due to which also, Chamber
Summons is liable to be dismissed.
5. Contention raised in the affidavit filed in support of the
Chamber Summons that plaintiff No.1 Chandrakant Sanjiv Prabhu
expired on 31/05/2016 is supported by the copy of death certificate
produced on record with the Chamber Summons. Copy of Deed of
Appointment dtd.13/07/2017 is produced on record with the Chamber
Summons which shows that plaintiff No.2 has appointed the respondent
as new trustee. Copy of Indenture dtd.25/01/1950 is part & parcel of
said Deed of Appointment dtd.13/07/2017. Those copies show that
there is a provision for appointment of a New Trustee by the surviving
or continuing Trustee or Trustees.
6. Material available on record shows that plaintiff Nos.1 & 2
were appointed as Trustees by executing Indenture of Appointment
dtd.07/12/1974. Apparently, after death of plaintiff No.1 Chandrakant
in year 2016, plaintiff No.2 had remained to be the sole surviving
Trustee. Recitals of the copies of documents produced on record with
the Chamber Summons show that the Deed of Trust provides that the
number of Trustees shall at no time be less than two or more than five.
It does not appear that by appointing the respondent as Trustee, the
number of Trustees exceeds the limit of five.
7. Having gone through the copies of documents produced
with the Chamber Summons, I could not any condition therein that the
Trustee must be a family member. Learned advocate for the defendant
has not brought any such condition to the notice of this court by taking
the court through the copies of the documents produced on record with
the Chamber Summons. In absence of any condition to that effect, this
court is of the opinion that the appointment of New Trustee would be
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governed by the provisions of Indian Trusts Act which prescribes that
any person who is capable of holding property can be appointed as a
Trustee and a person is deemed to have the capacity to hold the
property if such person is capable of administering the property
effectively and efficiently with ordinary prudence. It does not appear to
be the contention of the defendant that respondent is unfit to be a
Trustee as is prescribed by the Indian Trust Act.
8. Even if the argument of learned advocate for the defendant
is accepted for the time being that New Trustee shall not be outsider, it
does not appear that respondent is outsider for the family. Copy of PAN
Card of the respondent is part of the Deed of Appointment wherein,
name of her father is mentioned as Amrit Sheshgiri Prabhu from which,
it is clear that respondent belongs to Prabhu family from her maternal
side. Considering it, the fact that relationship of the respondent with the
family is not mentioned in the affidavit filed in support of the Chamber
Summons in itself is not sufficient for accepting the argument of learned
advocate for the defendant that respondent is outsider for the family
and respondent is not concerned with the Trust Property.
9. As mentioned earlier, plaintiff No.2 has appointed the
respondent as a New Trustee as per the provision made in the Trust
Deed and hence, plaintiff No.2 is entitled to join the respondent as
plaintiff No.3 by carrying out necessary amendment in the plaint.
10. No doubt, there is a delay in taking out Chamber Summons
for deleting the name of plaintiff No.1 however, there is no prayer to
bring on record the legal heirs of the deceased plaintiff. Considering it,
the prayer made in the Chamber Summons to add words as ''Since
Deceased'' against the name of plaintiff No.1 in the title clause is
acceptable. Proposed amendment in the plaint about making a mention
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of death of plaintiff No.1 and adding the respondent as plaintiff No.3
will not alter the nature of the suit. In view of the appointment of the
respondent as a New Trustee, as per the recitals of the Deed of Trust,
this court is satisfied that cause of action to proceed with the suit is
continuing with the plaintiff No.2 and respondent, who is sought to be
impleaded as plaintiff No.3. Contentions of defendant that he is the
beneficiary of the Trust Property and he is one of the co-owner so also,
the case of trespass is not maintainable against him are the questions
for consideration during trial of the suit. Thus, holding that plaintiff
No.2 is entitled for the relief claimed, an order.
O R D E R
Chamber Summons No.1054 of 2019 is made absolute in
terms of prayer clauses (a) and (b).
Amendment as per schedule be carried out within two
weeks from today.
Date : 06/03/2021. (P.P.RAJVAIDYA)
Dictated on : 06/03/2021. Judge, C.R.No.9
Checked on : 06/03/2021. City Civil Court,
Signed on : 06/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
08.03.2021 at 2.57 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 06/03/2021.
Order signed by P.O. on 06/03/2021.
Order uploaded on 08/03/2021.
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