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32. Mr. Vashi has drawn comparison between Clauses 4 and 7 of the Trust Deed. He has submitted that Clause 7 provides that the seat of the Trustee that lies vacant can be filled by the Continuing or Surviving Trustee. Thus, the Trust Deed itself contemplates that when a Trustee seat falls vacant, it shall be filled by Continuing or Surviving Trustees. It is provided, however, that the number of Trustees shall not at any time be less than three or more than five. There is a further proviso that after the number of Surviving Trustees has dwindled down to two or less and the Surviving Trustee or Trustees have failed to fill in the vacancy or vacancies within a period of three months from the date of the last vacancy, such vacancy or vacancies as shall being the total number of Trustees to a minimum of three, shall be filled up by the Khar Gymkhana by a resolution passed at a General Meeting of the Gymkhana.

51. Mr. Vashi has submitted that the Defendants have illegally introduced and purportedly passed a Resolution to provide for appointment of Trustees through members which is contrary to the Trust Deed. The Resolution is patently bad in law as it is squarely against Clauses 4 and 7 of the Trust Deed as well as provisions of the Indian Trust Act. The Defendants have by the purported Resolution sought to amend the Trust Deed by setting a bar on the tenure of the Trustees which as per the Trust Deed is for life. This is contrary to Clause 7 of the 1-IAL-28477-2021.DOC Trust Deed which allows the General Body to appoint a Trustee only in the event that the number of Trustees falls below three and the surviving Trustees failed to fill the vacancies within a period of three months from the last vacancy.

(6) The Trustees shall be indemnified against all expenses, disbursements or liabilities made or incurred on behalf of the said Khar Gymkhana in the operation of these presents.

(7) Any vacancy among the Trustees arising by death resignation, insolvency or any other disability or cause shall be filled up by the Continuing or surviving Trustees out of persons, who have subscribed and paid in the said Fund Rs.300/-

(Rupees Three hundred) or more, provided, however that the number of Trustees shall not at any time be less than three or more than five, and provided also that after the number of surviving Trustees has dwindled down to two or less and the surviving Trustee of Trustees have failed to fill in the vacancy of vacancies within a period of three months from the date of the last vacancy, such vacancy or vacancies as shall bring the total number of Trustees to the minimum of three shall be filled up by the Khar Gymkhana by a resolution passed at a General Meeting of the Gymkhana".

79. Clause 7 of the Trust Deed and Rule 43 cannot be conflated with Clause 4 and Rule 41(f) as in my prima facie view neither concern themselves with the removal of the Trustee which is clearly provided for in Clause 4 and Rule 41(f). Clause 7 of the Trust Deed and Rule 43 of the said Rules both provide for any vacancies amongst Trustees arising by death, resignation, insolvency or any other disability or cause shall be 1-IAL-28477-2021.DOC filled up by continuing or surviving Trustees provided the number of surviving Trustees have not dwindled down to two or less. This, in my prima facie view, cannot be read to include the word removal of a Trustee. Such interpretation of Clause 7 by Mr. Vashi is in my prima facie view on a misreading and misinterpretation of the said Clause 7 as well as the said Rule. There is no merit in the argument on behalf of the Plaintiffs that the Clauses 4 and 7 of the Trust Deed are one and the same as they relate to removal of the Trustees. The words "or cause" which has been interpreted by Mr. Vashi to include removal is an incorrect reading of this clause as removal is expressly dealt with in Clause 4 and would result in clause 4 being rendered nugatory. It is evident that the words in Clause 7 are required to be read ejusdem generis and grants the power to appoint Trustees by the Gymkhana as there can never be a scenario where there is a complete void i.e. no Trustees due to their removal. The Trust Deed itself does not provide for its dissolution. In my prima facie view by the removal of all Co- Trustees at the said Meeting held on 19th December, 2021, by the 3/4th of the members present at that meeting, there could not have been a vacuum and hence the new Co-Trustees were appointed on the same date under Rule 62 of the said Rules which 1-IAL-28477-2021.DOC is in terms of the Trust Deed and said Rules. In this context it would be necessary to reproduce Rules 62 and 63 which read thus:-