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6. The said Parvatibai died on 24th January, 1963. She was survived by her son Motisingh who had two sons viz. Harmansingh and the original trustee, the said Gangasingh. The said Gangasingh had four sons (Respondent Nos. 2 to 4) who were born prior to the execution of the Indenture of Trust. The Appellant was adopted by the said Harmansingh on 10th July, 1964 i.e. after the Indenture of Trust was executed, by a registered Deed of Adoption. Upon the demise of the said Motisingh, the said Gangasingh was the only surviving trustee. On 22nd September, 1965, the said Gangasingh appointed two of his four sons viz. Digvijaysingh and Kishorsingh (Respondent Nos. 2 and 3) as trustees on 22nd September, 1965. Being aggrieved by the appointment of the said Gangasingh's two sons as trustees, the said Harmansingh filed Suit No.267 of 1968 for removal of the said Gangasingh's sons as trustees and for appointment of Harmansingh as trustee in accordance with the Indenture of Trust. A consent decree came to be passed in the said Suit on 31st July, 1970 removing Respondent Nos. 2 and 3 and thereby appointing Harmansingh as trustee. On 10th November, 1984, the said APP-551-2004.DOC Harmansingh expired leaving his window and adopted son as his only legal heirs and representatives. The Appellant applied for Letter of Administration which was obtained on 21st November, 1986 in respect of the property and credits of the said Harmansingh in Petition No. 641 of 1985.

16. The learned counsel has submitted that the Indenture of Trust had provided for appointment of the Appellant's father the APP-551-2004.DOC said Harnamsingh, in the event of the original trustee, the said Motisingh resigning / expiring. It further provided for at least two trustees to manage the trust. These clauses have been breached by the said Gangasingh. It was upon the said Harnamsingh filing the Suit, that the said Gangasingh by a consent decree agreed to remove his two sons and substituted them with the said Harnamsingh. After the death of said Harnamsingh, original Defendant No.1 acted on his own for several years and thereafter once again appointed Respondent Nos. 2 and 3 as trustees. He has submitted that the learned Single Judge has failed to appreciate that the said Gangasingh has misused his power of appointment of trustees by the Deed of Appointment of Trust dated 28th February, 1992.

APP-551-2004.DOC

26. The appointment of new trustees is provided in clause 9 of Indenture of Trust which reads as under:-

"9 The power of appointing new trustees conferred by statute shall for the purposes of these presents be vested in the Continuing Trustees or Trustee. After the death of either of them the said Rai Bahadur Kunwar Motisingh or Kunwar Gangasingh or retirement of the former / Kunwar Harnamsingh shall be appointed trustee and thereafter if and when any new trustee is to be appointed any of the sons of Kunwar Gangasingh who shall be major, shall be appointed trustee. Upon any appointment of new trustee the number of trustees may be altered provided that it be not reduced below two and if at any time the number of trustees shall by death or otherwise be reduced to one a new trustee or new trustees shall be appointed as soon as conveniently can be but in the meantime and until such appointment all acts of the sole - trustee shall be valid and effectual".

30. From the facts emerging in the present case, the said Gangasingh who was appointed as original trustee has taken various measures to favour his sons and exclude the said Harnamsingh and his adopted son, which measures were never intended to be taken by the settlor of the trust who vested the trust property in the hands of the original trustees. This is evident from steps taken by the said Gangasingh in appointing his own sons i.e. Respondent Nos. 2 to 4 as trustees, after the resignation of the original trustee, the said Motisingh. This was effected on 22nd September, 1965, when the said Gangasingh appointed his two sons as trustees, although under clause 9 of the Indenture of Trust, it was provided that upon the expiry / retirement of the said Motisingh, the said Harnamsingh was to be appointed as trustee. It was only thereafter that when a new trustee is to be appointed, any of the sons of the said Gangasingh who was a major shall be appointed as trustee. As a result thereof, the said Harnamsingh was compelled to file a Suit for removal of Respondent Nos. 2 and 3 as well as the said Gangasingh as trustees and for appointment of himself as trustee. This resulted in the consent decree being passed removing Respondent Nos. 2 and 3 as trustees and appointing the said Harnamsingh as trustee. Upon the death of the said Harnamsingh on 10th November, 1984, the said APP-551-2004.DOC Gangasingh acted as sole trustee for several years till 28th February, 1992, despite clause 9 of the Indenture of Trust providing that the trust property should be vested in the hands of at least two trustees and in the event the number of trustees are reduced to one, a new trustee or new trustees shall be appointed as soon as conveniently can be so appointed and in the meantime until such appointment all acts of the sole trustees shall be valid and effectual. It further appears that on 28th February, 1992 the said Gangasingh once again appointed vide Deed of Appointment, Respondent Nos. 2 and 3 who had been domiciled in US since 1974. This was clearly in violation of Section 60 of the Indian Trusts Act which provides that persons domiciled abroad are not proper persons to administer the trust property and hence such appointment was contrary to law. Further, the appointment was only in name, as the said Gangasingh for all practical purposes continued as sole trustee contrary to the Indenture of Trust.