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Showing contexts for: surviving trustee in Smt. Sulochana Nathany vs Hindustan Malleables & Forgings Ltd. on 26 September, 2000Matching Fragments
10. The respondents have raised many objections in the shares being registered in the names of the trustees. They have questioned the authenticity of the existence of the trusts, the locus standi of the pelitioners to challenge the forfeiture, their claim to be the trustees, etc. The learned counsel for the company also relied on certain case law to state that even if the company were not to take noiice of the trust, the CLB can take note of the same and consider the objections of the respondents in relation to the trusts. We are of the view that it is too late in the day to question the authenticity of the existence of the trusts after having dealt with them over a period of two decades. Further, we also note that the petitioners have furnished enough materials, like copies of the trusts deeds, income-tax assessment orders, bank pass book, etc., which all indicate the existence of the trusts. As a matter of fact we find that even though the matter regarding the trusts names in the register of members was taken up in the year 1970, the company had issued bonus shares to all the three trusts in 1973 and had been paying the dividend to these trusts all along. Therefore, it is not open to the company to question the existence of the trusts. In regard to the locus standi of the petitioners, the contentions of the respondents are many fold. The petitioners claim to be the trustees of the trusts whose shares had been forfeited and as such they are 'persons aggrieved' in terms of section 111(4). However, the respondents contest the same on various grounds as elaborated as a part of the arguments of their counsel. We find that Smt. Sulochana Nathany, the first petitioner has been named as a trustee in the trust deeds of Motiram Hardeodas Charitable Trust and Ratan Devi Trust. In respect of Hardeodas Agarwalla Trust, she was appointed as a trustee on 17-10-1989 by way of a supplemental deed executed by late Arjun Agarwalla. Thus she is common trustee in all the three trusts. Third and fourth petitioners are reportedly the trustee of Ralan Dcvi Trust (the 2nd petitioner reportedly a trustee in all these trust expired during the pendency of the proceedings). The company refuses lo acknowledge their being the trustees as the petitioners have not disclosed as to how and when they were appointed as trustees. Coupled with this objection, the company has also raised the objection that the number of trustees in these trusts are below the minimum prescribed in the trust deeds and the number of existing trustees is below the quorum fixed. The learned counsel for the company relied on section 48 of the Indian Trust Act to state that co-trustees cannot act singly. It is so when there are more than one trustees are in position. In cases where there are vacancies in the office of the trustees, such a situation is covered by section 76 of the same Act which reads "Survival of trust : On the death or discharge of one or several co-trustees, the trust survives and the trust property passes to the others unless the instrument of trust expressly declares otherwise". [Emphasis supplied]. This section has been interpreted by the Calcutta High Court in Smt. Jurat KumariDasi v. Shaligram Subhkaran Khemani AIR 1960 Cal. 489 by staling that a provision for appointment of new trustees in place of dying or retiring would not be construed as displacing the rule of survivorship and though new trustees may be appointed under the provision, it does not preclude the continuing trustees to function til! such appointment and the new trustees join in the execution of the office. Thus, the legal position is that a trust survives the vacancy of trustees and that the continuing trustees can execute the trust. Therefore, once it is established that the first petitioner is a common trustee in all these trusts, she has full authority along with other existing trustees to execute the trust notwithstanding vacancies of trustees. In view of this, the objection of the company that the stipulated number of trustees are not in position in these trusts does not survive.