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their Agents, servants, employees and / or person/s claiming by under or through them by an order of injunction of this Hon'ble Court from in any manner inducting any third party and / or dealing with or parting with possession of the suit premises as mentioned in prayer clause (a) herein above.

5. The Defendant has filed her Written Statement to the High Court Suit on 27th June 2014, in which she has contended as follows :

5.1 The Trust Deed dated 9 th June 1879 is only a Deed Poll. It is only in the nature of a declaration of trust and does not amount to conveyance of the Banaji Limji Agiary. The Banaji Limji Agiary was never conveyed by the members of the Banaji Family to the Trust and the same continues to belong to the members of the Banaji Family.

(ii) The Agiary was established in the year 1709. The Agiary was restored in 1843 and it was then decided by the members of the Banaji family to form a Trust and to vest the immovable property in such trust. The first Trustees were appointed at a meeting amongst the members of the Banaji family on 13 th February 1855. Thereafter, by a Consent Decree dated 18th January 1877 passed by this Court in Suit No.525 of 1876, the then Trustees were directed to execute a Trust Deed within three months. The Trust Deed dated 9th June 1879 (Exhibit P-5) was executed and duly registered with the Sub-Registrar of Assurances by the then Trustees. The Trust Deed/Declaration of Trust mentions that Banaji Limji Agiary as well as the land underneath which is now numbered as City Survey No.449 was held in trust for all members of the Zoroastrian community professing the Zoroastrian faith.

(i) Based on the aforesaid evidence and submissions, Mr. Tamboly submitted that Issue No. 1 be answered in favour of the Trust and its Trustees.

19. I shall now set out the oral evidence and arguments advanced by and on behalf of the Defendant.

19.1 The Defendant has examined herself by filing her Affidavit in lieu of examination in chief dated 30th March, 2015. In her Affidavit she has stated that Banoo Nariman Shroff executed a Will in her favour and that she had applied for and obtained Probate dated 16th March 1999 in respect of the last Will and Testament of Banoo Nariman Shroff. She tendered the Probate granted by this Court (Exhibit D-1). She stated that in the year 2011 she made a search in the office of the Collector of Bombay and found that the Collector of Bombay has issued property card in respect of the property which do not show the Plaintiffs as the owners thereof. She stated that she is challenging the very title of the Trust as owner of the suit property. She stated that she is occupying one room on the 2nd Floor of the building Banaji Mansion being S 236 OF 2014-final.doc the Executrix and universal legatee under the will of Banoo Nariman Shroff. She stated that the said room was the subject matter of Suit No. 7732 of 1988 filed by the Trust before the Bombay City Civil Court for a declaration that she is a rank trespasser in respect thereof. She stated that the Suit came to be dismissed as the Trust had failed to prove its title. She stated that prepositor of original Banaji was Sorabji Nanabhoy Banaji. She stated that Sorabji Nanabhoy Banaji died on 12 th September 1949 leaving behind his two children Nanabhoy Sorabji Banaji and Banoo Nariman Shroff. She tendered the Will of Sorabji Nanabhoy Banaji (Exhibit D-2). She stated that there is no reference to the said property in the Will but his name appears in the property card in respect of the said property. She stated that Nanabhoy Sorabji Banaji during his life time was the Managing Trustee and was occupying a room in Banaji Mansion. She stated that Nanabhoy Sorabji Banaji died on 27 th October 1983 leaving behind his Will dated 27th September 1983. A copy of the Will has been tendered by her (Exhibit D-3). She stated that even in the Will of Nanabhoy Sorabji Banaji no reference is made to the said property but reference is made that Nanabhoy Sorabji Banaji used to pay rent to the Trust. She stated that Nanabhoy Sorabji Banaji bequeathed his estate to his sister Banoo Nariman Shroff who died at Mumbai on 4 th September 1988 leaving behind her last Will and Testament and that the probate in respect thereof obtained by the Defendant has not yet been challenged by anyone. She stated that rent receipts were issued to Banoo Nariman Shroff by the Trust and in the name of Nanabhoy Sorabji S 236 OF 2014-final.doc Banaji and were tendered by her (Exhibit D-4). She stated that the Will of Banoo Nariman Shroff does not state that the Trust is the owner of the suit properties. She stated that as Banoo Nariman Shroff's successor, after her death, the Defendant used to pay rent to the Trust but the Trust refused to accept rent and instead filed a trespass suit against her in the Bombay City Civil Court. She stated that none of the members of the Banaji family ever conveyed by a Deed of Conveyance the suit properties to the Trust. She stated that her search in the office of the Collector of Bombay reveals that the property card stands in the name of Nanabhoy Sorabji Banaji. She stated that though the Trust has sought to rely upon the Deeds of appointment of new trustees to prove title, they have not pointed out that the Trust itself was the transferee of the suit properties from the original owners/members of the Banaji family. She stated that she has obtained a copy of form No.18 filed by the Trust with the Charity Commissioner, Maharashtra State, and she has tendered the same (Exhibit D-6). She stated that the trustees of the Trust are claiming ownership of the Suit Properties without obtaining conveyances in respect thereof. According to her the documents relied upon by the Trust do not confer title upon the Trust or its Trustees. According to her the Trust could claim to be owner only if it were the original transferee of the suit properties. She stated that she is the ultimate beneficiary of the properties devolved upon her through Sorabji Nanabhoy Banaji, Nanabhoy Sorabji Banaji and Banoo Nariman Shroff. She states that it is for the Plaintiffs to establish their title and that the S 236 OF 2014-final.doc Plaintiffs have failed to do so. She stated that though the Deed Poll (Declaration of Trust) is dated 9th June 1879 the Plaintiffs have not explained as to why it is registered only under the Maharashtra Public Trust Act 1950 and not under previous statutes such as the Religious Endowments Act, 1976 and Maharashtra Public Trust Act, 1935. This according to her, casts doubts on the registration itself. She has further stated that the Declaration of Trust sets out the mode of appointment of trustees to be followed. She further states that the lineage of the Banaji family has not been established by the Plaintiffs.

20. Ms. Khobragade made the following submissions on behalf of the Defendant in respect of the issue of title to the Suit Properties :

20.1 Ms. Khobragade contended that the Plaintiffs have not proved their title to the Suit Properties. The Defendant has contended that the Trust Deed is a mere declaration of Trust, and that the same cannot legally vest title to immovable property upon the Trust. A perusal of the Trust Deed makes it clear that this is no transfer clause or vesting clause and thus, this is not a document on the basis of which the Plaintiffs can claim that the Suit Properties vest in the Trust. She relied upon the answers given by PW-1 to questions, where PW-1 has confirmed that the Agiary was founded by Banaji Limji in the year 1709 and contended that that Banaji Limji has not founded the Trust. She contended that the Trust cannot claim to be entitled to the Agiary or the land standing underneath the same or to any other part of the property bearing C. S. No. 449.