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On 5th September, 2011, all the trustees of the trust with the consent of Om Prakash Mohta as Managing Trustee appointed two further trustees. The minutes was signed by Om Prakash Mohta as Managing Trustee.

A rival claim has, however, been set up by Shree Prakash Mohta and his group on the basis of an alleged meeting held on 29th March, 2001, which purportedly shows that Shree Prakash Mohta appointed himself as managing trustee and further appointed one Madav Prakash Mohta, one Suman Mohta and one Raj Kumar Daga as trustees. There is another meeting alleged to have been held on 17th April, 2002 whereby a resolution was allegedly passed for opening of new bank account at Allahabad Bank, Chandni Branch to be operated by signature of any of the two of the newly appointed three trustees and Shree Prakash Mohta.

In the context of the aforesaid rival claim being made on the basis of the purported minutes dated 29th March, 2001, several questions have been framed and the opinion of this Hon'ble Court has been sought primarily concerning the appointment, resignation and rights of managing trustee and other trustees.

The mode and method of appointment of a trustee is governed by clause 5 of the original deed of trust read with clause 4 of the amended deed. The appointment of Om Prakash Mohta as Managing Trustee on 2nd June, 1961 by the Settlor conferring to Om Prakash Mohta all powers of Managing Trustee that were vested in Bhagirath Mohta is admitted. The trust was functioning in or about 6th February, 1999 with the minimum number of two trustees. On that date, in terms of clause 5(d) of the original deed of trust, Om Prakash Mohta, being a first trustee and having the power to co-opt two trustees, exercised the power and appointed two trustees. This appointment is challenged by the defendants on the ground of lack of authority and power of Om Prakash to appoint any such trustees without the consent of the other trustees.

It is submitted that there is no distinction, in the context of a trust, between the power to co-opt and the power to appoint. By reason of clause 5(d), a first trustee was entitled to co-opt two trustees and the exercise of such power was validly done by Om Prakash Mohta in conjunction with the power to appoint under clause 4 of the supplement deed. The appointment of the two trustees made by Om Prakash Mohta as Managing Trustees and first trustee on 6th February, 1999 was as such not irregular.

The parties have relied upon the following Clauses of the Original Deed as well as Supplementary Deed:-

Clause 5 of the Original Deed of Trust
(a) None but an adult Hindu may be a Trustee for the Trust declared hereby. 
                  (b)    At least two of the Trustees shall be the
                         descendants of my late father-in-law either
                         through son or daughter.
                  (c)    The number of Trustees at a time shall not be less
                         than two or more than five.
                  (d)    I myself the said Bhagirath Mohta and Om
                         Prakash Mohta son of the said Bhagirath Mohta
                         shall be the first trustees with power to me and
                         the said first Trustees to co-opt two more
                         trustees."
            Clause 7 of Original Trust Deed