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27. We shall now proceed to consider the rival submissions. The document which falls for consideration viz. the Indenture of Trust was executed by the settlor viz. the said Parvatibai for vesting the trust property in the hands of the original trustees, the said Motisingh and the said Gangasingh. The beneficiaries being her grandsons and great grandsons. On the date of the Indenture of Trust, i.e. 31st March, 1949, the said Harnamsingh had no son and it was only in 1964 that he had adopted the Appellant. The recital clause (at internal page 3) of the Indenture of Trust also APP-551-2004.DOC makes it clear that the trust property was being held upon trust for the benefit of the settlor's grandsons and great grandsons. This is provided in the recital clause (internal page 3) which reads as under:-

(emphasis supplied)

28. The other clauses of the said Indenture of Trust which have been extracted aforesaid also make it clear that the trust property was vested in the trustees by the settlor for the intended beneficiaries and which included the grandsons and great grandsons of the settlor. The trustees were to hold the remainder of the gross income (called the net income) in trust and were to apply the same as provided in clause 5(a), 5(b) and 5(c) of the APP-551-2004.DOC Indenture of Trust. Clause 5(f) of the Indenture of Trust has been relied upon by the Respondents to claim that there was an independent power vested in the said Gangasingh to distribute the shares in the trust property in whomsoever he deemed fit by Deed of new appointment, Will or codicil provided it was distributed amongst the sons and / or grandsons of the said Harnamsingh and the said Gangasingh as beneficiaries. We cannot accept the Respondent's interpretation of Clause 5(f) of the Indenture of Trust. This clause refers to the date of distribution and from a reading of this clause it is clear that the settlor of the Indenture of Trust had not intended to exclude any of her great grandsons i.e. sons of the said Harnamsingh and the said Gangasingh. In the last part of this clause, which the Respondents have interpreted as applying in the eventuality of a default on the part of the said Gangasingh to appoint the beneficiaries on the date of distribution, provides that "subject to any and every such appointment in Trust for all the sons of the said Kunwar Harnamsingh and Kunwar Gangasingh in equal shares..." Presuming, that the Respondents are correct in their interpretation that sons of the said Kunwar Harnamsingh and Kunwar Gangasingh would be appointed as beneficiaries in equal shares only in the eventuality of the default on the part of the said Kunwar Gangasingh to appoint the APP-551-2004.DOC beneficiaries and determine their respective shares in the trust property, it is clear that the settlor had no intention to exclude any of her great grandsons, either existing on the date of Indenture of Trust or born or adopted thereafter. This is apparent from the Indenture of Trust which mentions the beneficiary of the trust property to include the sons of the said Harnamsingh, although at the date of execution of the Indenture of Trust, the said Harnamsingh had no son, the Appellant having been adopted in 1964.

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.

39. In the judgment of Basanti Seal (Supra), the Calcutta High Court has considered a case where the original trustee as settlor executed a deed of trust providing that he and his wife would act as joint trustees in respect of the trust properties. The joint trustees thereafter exercised their power conferred by the said Deed of Trust by executing a Deed of appointment appointing as beneficiaries of two of the trust properties, his two sons and excluding his third son, the Plaintiff in that case. This power was further exercised by the wife upon the demise of her husband, as the surviving original trustee in the same manner as the original trustees had exercised the power and in respect of the other trust property. The Suit instituted by the joint trustees for eviction of the licensee i.e. the son who was excluded as beneficiary, from a portion of the Calcutta property had originally been dismissed by the Court but was upheld in Appeal and the SLP preferred against the order in Appeal was dismissed. The Calcutta High Court had APP-551-2004.DOC also considered the default clause in this context and held that only if there was no appointment by the joint trustees or surviving trustee then in that case all the sons would get the trust property in equal shares. It was held that since the two deeds of appointment were legal and valid, the excluded son i.e. the Plaintiff was neither a beneficiary nor had acquired any right, title and interest in any of the trust properties. This case can also be distinguished as in the present case the settlor of the trust has not exercised the power of appointment and this has been exercised by the original trustee, the said Gangasingh later in favour of his sons as beneficiaries by excluding the Appellant. It is clear from the Indenture of Trust that the settlor, the said Parvatibai never intended any such exclusion and hence such power could never have been exercised in the manner exercised by the original trustee, the said Gangasingh. The above cases relied upon by the learned Senior Counsel for the Respondents are accordingly not applicable in the facts and circumstances of the present case.