Bombay High Court
Adi Burjor Banajee And 2 Others vs Bakhtawar Maneskha Jijina on 22 March, 2022
Bench: S.J. Kathawalla
Digitally signed by
SWAROOP SWAROOP
SHARAD SHARAD PHADKE
PHADKE Date: 2022.03.23
21:42:49 +0530 S 236 OF 2014-final.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.236 OF 2014
1. Adi Burjor Banaji
2. Jamshed Dady Banaji
3. Burjor Edulji Banaji
the present Trustees of the
Banaji Limji Agiary Trust,
having their office at Banaji
Mansion, 17, Banaji Street,
Fort, Mumbai 400 001.
...Plaintiffs
Versus
Bakhtawar Maneksha Jijina, of
Mumbai Indian inhabitant, residing at
3rd Floor, Banaji Mansion, 17, Banaji
Street, Fort, Mumbai 400 001. ...Defendant
AND
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S. C. SUIT NO. 2546 OF 2014
Bakhtawar Maneksha Jijina ...Plaintiff
Versus
Burjor Rustomji Banaji & Ors. ...Defendants
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Mr. Karl F. Tamboly, along with Mr. J. N. Mistry, Ms. Vijaya Bhat and Ms. Avan
Ardeshir, instructed by M/s. Mulla & Mulla & Craigie Blunt & Caroe for the Plaintiffs
in Suit No. 236 of 2014 and for the Defendants in S. C. Suit No. 2546 of 2014
Ms. Sapna Khobragade with Ms. Gayatri Nayak, Mr. Raj Gupta i/by Mr. Rajesh
Khobragade for the Defendant in Suit No. 236 of 2014, and for the Plaintiff in S. C.
Suit No. 2546 of 2014
CORAM: S.J. KATHAWALLA, J.
RESERVED ON : 15th MARCH, 2022
PRONOUNCED ON : 22nd MARCH, 2022
JUDGMENT :
1. The present Judgment shall dispose of Suit No. 236 of 2014 filed before
this Court ('the High Court Suit'), as well as S.C. Suit No.2546 of 2011 which was
originally filed before the Bombay City Civil Court at Bombay ('the City Civil Court
Suit'). The Plaintiffs in the High Court Suit had filed Notice of Motion No. 428 of
2014 seeking interim reliefs during the pendency of the High Court Suit. During the
hearing of that Notice of Motion, both sides had consented to both the High Court
Suit and the City Civil Court Suit being tried and heard together. Accordingly, by my
order dated 15th April 2014 passed in Notice of Motion No. 428 of 2014 in the High
Court Suit, the Office of this Court was directed to call for the record and proceedings
in the City Civil Court Suit to this Court. Pursuant thereto, the record and
proceedings in the City Civil Court Suit was transferred to this Court, and both Suits
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have thereafter been tried and heard together.
2. The Plaintiffs in the High Court Suit are the Trustees of the Banaji Limji
Agiary Trust ('the Trust'), which is a public charitable trust registered under the
provisions of the Maharashtra Public Trusts Act, 1950. The Defendant in the High
Court Suit is Ms. Bakhtawar Maneksha Jijina. Ms. Jijina is the Plaintiff in the City
Civil Court Suit. Plaintiff Nos. 1 and 2 in the High Court Suit have been arrayed as
Defendant Nos. 1A and 2A in the City Civil Court Suit. For the sake of convenience,
the parties shall hereinafter be referred to as they have been arrayed in the High Court
Suit, i.e. the Trustees of the Trust shall be referred to as the Plaintiffs, and Ms.
Bakhtawar Maneksha Jijina shall be referred to as the Defendant, irrespective of
whether they are being referred to in the context of the High Court Suit or the City
Civil Court Suit.
3. The case of the Plaintiffs in the High Court Suit is briefly set out as
follows :
3.1 The Plaintiffs are the present Trustees of the Banaji Limji Agiary Trust
('the Trust'). The Trust is a public charitable trust registered under registration no.
C-418/B with the office of the Charity Commissioner, under the provisions of the
Maharashtra Public Trusts Act, 1950.
3.2 In the year 1709, the Banaji family of Mumbai established a Parsi Fire
Temple called the Banaji Limji Agiary ('the Agiary') at Banaji Street, Fort, Mumbai
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400 001. A chawl was built adjacent to the Agiary.
3.3 In the year 1843, the Agiary and chawl were found to be in a dilapidated
condition and were pulled down and restored by members of the Banaji Family. A
sum of Rs.23,000/- was raised by the members of the Banaji Family for restoration
and endowment of the Agiary. After the work of restoration of the Agiary was
completed, a sum of Rs.11,034/- remained out of the aforesaid funds raised for
restoration of the Agiary. The members of the Banaji Family decided to form a trust
and to place the immovable properties and funds in its care.
3.4 On 13th February 1855, a meeting was convened amongst the members of
the Banaji Family and the following persons were appointed as Trustees in respect of
the movable and immovable properties and the funds, viz., Dadabhoy Rustomjee
Banaji, Sorabjee Pestonjee Banaji, Limji Maneckjee Banajee, Dhunjibhoy Framjee and
Hormusji Ruttonjee Banaji. Thereafter these persons took charge of the Agiary, chawl
and surplus monies mentioned above. Dhunjibhoy Framjee resigned as a Trustee in
the year 1864. Hormusji Ruttonjee Banaji died on 26 th December 1865. Pestonjee
Burjorjee Davur and Nanabhoy Dhunjeebhoy Banajee were appointed as Trustees in
their place and stead respectively.
3.5 By a Consent Decree dated 18 th January 1877 passed by the Bombay
High Court in Suit No. 525 of 1876, the Trustees were to meet within three months
and execute a Trust Deed by which the Agiary and other immovable and movable
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properties could be formally transferred to the Trust. In pursuance of the same, a
Trust Deed dated 9th June 1879 establishing the Trust was executed by and between
Sorabjee Pestonjee Banaji, Limji Maneckjee Banajee, Pestonjee Burjorjee Davur,
Nanabhoy Dhunjeebhoy Banajee and Furdonjee Merwanjee Banajee ('the Trust
Deed'). The Trust Deed was registered with the Sub Registrar of Assurances at
Bombay on 9th June 1879 under Registration No.228-A at pages 62 to 71, Volume 46 of
Book No.1. The land admeasuring 796 square yards and forming part of what is now
Cadastral Survey No. 449 of Fort Division with the buildings of the Banaji Limji
Agiary being the same land and building and the outhouses situated in Nanabhoy Lane
in Fort were vested in the Trust as per the Trust Deed.
3.6 By a registered Indenture of Conveyance dated 13th July 1905, the Trust
acquired the land admeasuring 112 sq.yards equivalent to 93.65 sq. meters together
with the building standing thereon adjoining the Agiary. This land forms part of what
is now Cadastral Survey No. 449 of Fort Division.
3.7 By a registered Indenture dated 29th November 1916, the Trust acquired
the property being land admeasuring 32 sq. yards, now forming part of Cadastral
Survey No. 450 situated at 14, Banaji Street, Fort, Mumbai, Ward 'A. and the
premises standing thereon.
3.8 By a registered Indenture of Conveyance dated 2nd December 1926, the
Trust acquired land admeasuring 65 square yards in Fort, Bombay now bearing
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Cadastral Survey No. 403, with a dwelling house standing thereon.
3.9 By three registered Indentures of Conveyance dated 15 th April 1885, 30th
April 1885 and 16th January 1886, the Trust acquired portions of land, forming part of
land now bearing Cadastral Survey No. 405 situated at 17, Banaji Street, Fort,
Mumbai, Ward 'A'. Out of these lands, land admeasuring 74.58 square yards was
conveyed by the Trust to the Municipal Corporation for the City of Bombay under a
registered Indenture of Conveyance dated 7th December 1887.
3.10 The Trust is the owner of the aforesaid properties situated at CS Nos.
449, 450, 403 and 405. The same have been more particularly described in the
Schedule contained in Exhibit A to the Plaint ('the Suit Properties').
3.11 Over the years various Trustees of the Trust have retired or died, and
new Trustees have been appointed to replace them from time to time. Various Deeds
of Appointment of new Trustees have been registered with the office of the Sub
Registrar of Assurances, thereby vesting the Suit Properties in the continuing Trustees
and new Trustees.
3.12 The Trust has been paying the property and municipal taxes in respect
of the Suit Properties.
3.13 One Banoo Nariman Shroff was the occupant of premises situated on the
2nd floor of Banaji Mansion. She passed away on 4 th September 1998. The Defendant
filed Testamentary Petition No. 950 of 1998 before this Court for probate of the last
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Will and Testament dated 1st December 1983 of Banoo Nariman Shroff. Probate was
granted by this Court in favour of the Defendant on 16th March 1999.
3.14 It has recently come to the knowledge of the Plaintiffs that the
Defendant made another application dated 22nd December 2011 to the Prothonotary
and Senior Master of this Court for amendment of the Schedule of Assets in the
Probate granted to the Defendant in respect of the Will of Banoo Nariman Shroff. The
Defendant claimed that in the schedule of assets annexed to Testamentary Petition
No. 950 of 1998, certain assets of Banoo Nariman Shroff came to be omitted due to
oversight. The schedule of amended assets annexed to the amendment application
sought to introduce the Suit Properties belonging to the Trust. The amendment as
sought by the Defendant was allowed as the same was uncontested, and the schedule
of assets annexed to the Probate granted by this Court in respect of the Will of Banoo
Nariman Shroff was amended on 28th August 2012 to include inter alia the Suit
Properties.
3.15 The Defendant has trespassed into Banoo Nariman Shroff's premises on
the 2nd floor of Banaji Mansion, and is claiming possessory and other rights therein on
the strength of Banoo Nariman Shroff's will. The Trust filed Suit No. 7732 of 1988
before the Bombay City Civil Court for removal of the Defendant from the premises
on the 2nd floor of Banaji Mansion. By a judgment dated 18 th September, 2012, the
Bombay City Civil Court dismissed S.C. Suit No.7732 of 1988. The Trust has
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preferred First Appeal No.10 of 2013 before this Court.
3.16 The Defendant filed the City Civil Court Suit claiming ownership to the
Suit Properties on 20th August 2011 as a counterblast to the trespass action initiated
against her by the Trust in respect of the premises situated on the 2 nd floor of Banaji
Mansion.
3.17 The Defendant's husband was serving as a salaried priest in the Agiary
which is owned by the Trust and was a tenant in respect of premises on the 3 rd floor of
Banaji Mansion standing on C. S. No. 405 of Fort Division owned by the Trust. The
Defendant's husband was paying rent to the Trust in respect of his tenanted premises
on the 3rd floor of Banaji Mansion. The Defendant's husband passed away on 29 th June
2012. The Defendant continued to pay rent in respect of these 3 rd floor premises in
Banaji Mansion up to November 2011, i.e. well after filing the City Civil Court Suit on
20th August 2011.
3.18 However, the Defendant has been holding herself out to be the owner of
the Suit Properties. She claims title to the same through Banoo Nariman Shroff. The
Plaintiffs have also come to know that the Defendant has been attempting to get many
of the Suit Properties transferred in her name in the revenue records on the strength
of the aforesaid Probate of the will of Banoo Nariman Shroff granted to her by this
Court, and the amended schedule of assets therein.
3.19 The Plaintiffs have prayed for the following reliefs :
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"(a) that it be declared that the Plaintiffs, as Trustees of the Banaji
Limji Agiary Trust are the owners of and are entitled to the properties
described in the Schedule annexed as Exhibit "A" hereto;
(b) that it be declared that the deceased Banoo Nariman Shroff, never
had any right, title or interest in any of the immovable properties described
in the schedule annexed as Exhibit A hereto;
(c) that it be declared that the Defendant has no right, title or interest
in any of the immovable properties described in the schedule annexed as
Exhibit A hereto;
(d) that this Hon'ble Court be pleased to grant a permanent order and
injunction :
(i) Restraining the Defendant by herself or by her servants
and agents by permanent order and injunction of this Hon'ble Court from
in any manner entering upon the properties described in Exhibit "A"
hereto or any part thereof or from in any manner interfering with or
disturbing the Plaintiffs' possession of the properties described in Exhibit
"A" hereto or any part hereof;
(ii) Restraining the Defendant by herself or by her servants
and agents from in any manner dealing with, disposing off, transferring,
alienating, encumbering, or creating any third party right in respect of the
properties more particularly described in Exhibit "A" hereto or any part
thereof;
(iii) Restraining the Defendant from holding herself out as the
owner of or has having any right title or interest of any nature whatsoever
in any of the immovable properties described in Exhibit "A" hereto or any
part thereof;
(e) that this Hon'ble Court be pleased to direct the Defendant to
faithfully disclose on oath before this Hon'ble Court, any and all attempts
made by her to deal with any of the immovable properties mentioned in the
schedule annexed and Exhibit A hereto;
(f ) that pending hearing and final disposal of the suit -
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(i) the Defendant by herself or by her servants and agents be
restrained by temporary order and injunction of this Hon'ble Court from in
any manner entering upon the properties described in Exhibit "A" hereto
or any part thereof or from in any manner interfering with or disturbing the
Plaintiffs' possession of the properties described in Exhibit "A" hereto or
any part hereof.
(ii) the Defendant by herself or by her servants and agents be
restrained from in any manner dealing with, disposing off, transferring,
alienating, encumbering, or creating any third party right in respect of the
properties more particularly described in Exhibit "A" hereto or any part
thereof;
(iii) the Defendant be restrained from holding herself out as
the owner or as having any right or title or interest of any nature
whatsoever in, any of the immovable properties described in Exhibit "A"
hereto or any part thereof;
(g) that pending the hearing and final disposal of this Suit this
Hon'ble Court be pleased to direct the Defendant to faithfully disclose on
oath before this Hon'ble Court, any and all attempts made by her to deal
with, in any man manner whatsoever, any of the immovable properties
mentioned in the schedule annexed and Exhibit A hereto.
(h) for ad interim reliefs in terms of prayer clauses (f ) and (g) above;
(i) That the Defendant be ordered and decreed to pay to the Plaintiffs
costs of this Suit.
(j) For such further and other reliefs as this Hon'ble Court deems fit
in the facts and circumstances of the present case to grant."
4. The Defendant filed the City Civil Court Suit on 20 th August 2011
against the Trustees of the Trust in which she has contended as follows :
4.1 The Defendant has stated in the City Civil Court Suit that she caused a
search to be taken in the office of the Collector at Bombay on 14 th June 2011. The
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search revealed that the Collector of Bombay has issued property cards in respect of
the Suit Properties. The property card does not reveal that the Trust is the owner of
the Suit Properties and that she is in fact the owner. She further stated that the
property cards in respect of the Suit Properties reflect the name of one Sorabji
Nanabhoy Banaji as the owner of the Suit Properties. Even the municipal records
reflect the name of Sorabji Nanabhoy Banaji as the owner of the Suit Properties.
4.2 The Suit Properties have never been conveyed by Sorabji Nanabhoy
Banaji or his successors in title to the Trust. The estate of Sorabji Nanabhoy Banaji
vested in his son Nanabhoy Sorabji Banaji. Upon Nanabhoy Sorabji Banaji's death, his
estate vested in his sister Banoo Nariman Shroff. Since the Defendant is the
beneficiary to the estate of Banoo Nariman Shroff, she is the owner of all of the Suit
Properties which according to her belonged to Sorabji Nanabhoy Banaji.
4.3 The Trust is not entitled to the Suit Properties. At the time of
registration of the Trust, the documents on the basis of which the properties were
transferred to the Trust have not been set out. There is no formal transfer of the Suit
Properties to the Trust. Without first obtaining conveyance of the properties in
question, the Trust cannot claim to be entitled to the same in deeds of appointment of
new Trustees.
4.4 The Suit Properties have devolved upon the Defendant from Sorabji
Nanbhoy Banaji, and the Defendant has disputed that the Trust is entitled to the same.
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Accordingly, the Defendant has prayed for the following reliefs in the City Civil Court
Suit :
"(a) That this Hon'ble Court be pleased to restrain the Defendants,
their agents, servants and / or person/s claiming by under or through them
by an order of permanent injunction restraining the Defendants from in any
manner inducting any third party and / or dealing with disposing off or
parting with possession of the any gala/ shop/ office/ residential premises as
also creating any tenancy or transferring tenancy or inducting third party in
any capacity whatsoever or altering terms and conditions of evicting tenant
in suit premises viz -
a) Building Cadastral Structure Description
No. Survey size
No.
01 13 400 G+1 G= Occupied
1= Occupied
02 14 450 G+4 G= Occupied
1= Occupied
2= Occupied
3=vacant
4=vacant
03 15 405 Ground Godown
04 16 450 G+4 G= Occupied
1= Occupied
2= Occupied
3=vacant
4=vacant
05 17 400 G+3 G= Occupied
1= Occupied
2= Occupied
3=Occupied by Plaintiff
06 18 450 Ground G Occupied
07 21 405 G+1 G= Occupied
1= Occupied
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b) that this Hon'ble Court may be pleased to restrain the Defendants,
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.
5.2 The Trust Deed dated 9th June 1879 does not create a Trust nor does it
amount to a Deed of Trust.
5.3 The Trustees of the Trust are only managers, and not owners, of the
Suit Properties.
5.4 The property cards in respect of the Suit properties describe the Trust
as the party in beneficial ownership thereof, but the same are merely revenue
documents and cannot be stated to create title.
5.5 The Plaintiffs have not established that the Trust is the owner of the
Suit properties.
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5.6 The High Court Suit has been filed as a counter blast to the City Civil
Court Suit filed by the Defendant.
5.7 Only the members of the Banaji Family are entitled to be Trustees of the
Trust. The Plaintiffs have not shown their lineage to the Banaji Family and are not
entitled to be Trustees of the Trust.
5.8 The suit properties belonged to Sorabji Nanabhoy Banaji. Sorabji
Nanabhoy Banaji by his Will dated 19 th October 1936 left his entire estate to his son
Nanabhoy Sorabji Banaji. Nanabhoy Sorabji Banaji by his Will dated 27 th September
1983 left his entire estate to his sister Banoo Nariman Shroff. Nanabhoy Sorabji Banaji
predeceased Banoo Nariman Shroff and therefore his entire estate vested in Banoo
Nariman Shroff. Banoo Nariman Shroff by her Will dated 1 st December 1983 left her
entire estate to the Defendant. After the death of Banoo Nariman Shroff, the
Defendant has obtained Probate in respect of the Will of Banoo Nariman Shroff from
this Court. The Suit properties are included in the amended schedule of assets. The
Defendant has inherited all the suit properties from Banoo Nariman Shroff and the
inclusion of the same in the Schedule of Assets annexed to the Probate confer title in
respect of the Suit properties in her favour.
6. The Plaintiffs have filed their Written Statement dated 25 th September
2013 to the City Civil Court Suit, in which they have contended as follows :
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6.1 The Plaintiffs have set out how they claim to be the owners of the Suit
Properties. Since these contentions have already been set out above while setting out
the Plaintiffs contentions in the High Court Suit, they are not being repeated here.
6.2 The will of Banoo Nariman Shroff does not reflect the Suit Properties.
The amendment to the Schedule to the Probate of her will is bogus and fraudulent and
false to the knowledge of the Defendant. The Defendant has only amended the
Schedule to perpetuate her false claim on the Suit Properties belonging to the Trust.
6.3 The name of Sorabjee Nanabhoy Banaji appears on the property cards of
the Suit Properties in his capacity as a Trustee of the Trust.
7. On 8th July 2014, Issues were framed in the High Court Suit and the City
Civil Court Suit, which are set out as follows :
Issues in Suit No.236 of 2014 (the High Court Suit):
1. Whether the Plaintiffs prove that they, as Trustees of Banaji Limji Agiary
Trust, are the owners of, and are well and sufficiently entitled, to the
immovable properties which are the subject matter of these Suits?
2. Whether the Plaintiffs prove that Banaji Limji Agiary Trust is in possession
of the properties which are the subject matter of these Suits?
3. Whether the Plaintiffs prove that the Defendant is attempting to interfere
with or disturb their possession in respect of the properties which are the
subject matter of these Suits?
4. Whether the Defendant proves that the executants of the Deed of Poll dated
9th June 1876 were not Trustees but mere managers?
5. What order?
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Issues in transferred Bombay City Civil Court Suit No.2546 of 2011 (the City
Civil Court Suit):
6. Whether the Plaintiff proves that as the proving sole executor of, and the
universal legatee under the last Will and Testament of late Banoo Nariman
Shroff, the Plaintiff is entitled to claim interest in respect of the properties
which are the subject matters of these Suits?
7. Whether the Plaintiff proves that she is entitled to restrain the Defendants
from dealing with or disposing of or creating third party rights in, or parting
with possession of any of properties which are the subject matter of these
Suits?
8. To what reliefs, Plaintiff is entitled?
9. What order?
8. On 1st February 2016, the following additional issue was framed :
(i) Whether the Defendant proves that the Suit as filed, is not
maintainable for the reasons set out by the Defendant in her Written Statement?
9. The Plaintiffs examined Plaintiff No.1 (PW-1) who filed an Affidavit in
lieu of examination in chief dated 4 th September 2014. He tendered documents on
behalf of the Plaintiffs which have been taken on record and marked as Exhibits P1 to
P80 under an order dated 5th September 2014 of this Court. He was cross examined in
Court on 13th February 2015. Two further documents which were produced by the
office of the Sub Registrar of Assurances, were tendered by the Plaintiffs and the same
were taken on record and marked as Exhibits P81 and P82 under an order dated 14 th
October 2015 of this Court. Thereafter the Plaintiffs closed their evidence.
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10. The Defendant examined herself by filing an Affidavit in lieu of
examination in chief dated 30th March 2015. The Defendant also tendered documents
which were taken on record and marked as Exhibits D-1 to D-9 under an order dated
31st July 2015 of this Court. The Defendant was cross examined on 31 st July 2015 in
Court. Thereafter she closed her evidence.
11. Thereafter the final hearing in the Suit initially commenced.
12. During the midst of the final hearing, the Plaintiffs took out Notice of
Motion No. 1950 of 2015 seeking to reopen their evidence and to lead additional
evidence of PW-1 and of one Shri Adi Mehta in view of events which had transpired
after they had closed their evidence. By an order dated 1 st February 2016, Notice of
Motion No. 1950 of 2015 was allowed, and the Plaintiffs were permitted to lead
additional evidence through Plaintiff No.1 and Shri Adi Mehta (PW-2).
13. The Plaintiffs thereafter filed an additional Affidavit in lieu of
examination in Chief dated 4th February 2016 of Plaintiff No. 1 (PW-1) and an
Affidavit in lieu of examination in chief of Shri Adi Mehta (PW-2) dated 4 th February
2016. By an order dated 4th July 2016, four further documents of the Plaintiffs were
taken on record and marked as Exhibits P83 to P86. PW-2 was cross examined on 4 th
July 2016 in Court. PW-1 was further cross examined on 4th and 5th July 2016 in Court.
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14. Thereafter the Plaintiffs once again closed their evidence. The
Defendant did not make any application seeking to lead any further evidence following
the further evidence led by the Plaintiffs.
15. The following is a list of documents, along with their Exhibit numbers,
which have been tendered by the Plaintiffs in these Suits :
DOCUMENT Page Exhibit
Nos. in No.
Plaintiff's
compilation
of
documents
Certified Copies of Property Cards in respect of 1-6 P1
properties bearing C.S.No. 403, C.S.No.405, (colly)
C.S.No.400 and C.S.No.401 more particularly
described in the Schedule annexed as Exhibit "A" to
the plaint.
Certified Copies of Property Cards in respect of 7-8 P-87
properties bearing C.S.No. 449 and C.S.No. 450
more particularly described in the Schedule annexed
as Exhibit "A" to the plaint.
Certified Copy of the Change Report dated 31st 9 -10 P-2
March 1980 filed in the office of the Charity
Commissioner regarding the appointment of Plaintiff
No. 1 as Trustee.
Certified Copy of the Change Report dated 19th May 11-19 P-3
2005 alongwith annexures filed in the office of the
Charity Commissioner regarding the appointment of
Plaintiff No. 2 and 3 as Trustees.
Original Resolution dated 18th August 2014 20 P-50
confirming the appointment of Mr.Burjor Edulji
Banaji as a Trustee.
Certified Copy of Schedule 1 maintained by the office 21 - 24 P-4
of the Charity Commissioner.
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Certified Copy of the Trust Deed dated 9th June 1879 25 - 34 P-5 & P5-
alongwith a typed copy thereof. 35 - 47 1
Certified copy of the Indenture of Conveyance dated 48 - 55 P-6
13th July 1905 made between Maneckji Hormusji
Kanga as the Vendor and Furdoonjee Merwanjee
Banajee and others, the Trustees of the Trust as the
Purchasers.
Certified copy of Indenture of Conveyance dated 29th 56 - 65 P-7
November 1916 made between Bai Hirabai and
Dorabji Cowasji Dawar, Cooverjee Nanabhoy Banaji,
Sorabjee Nanabhoy Banajee, Nowrojee Jehangerjee
Framjee and Framjee Dadabhoy Banajee, the then
Trustees of the Trust.
Certified copy of Indemnity Bond dated 29th 66 - 69 P-8
November 1916 executed by Bai Hirabai.
Certified copy of Indenture of Conveyance dated 2nd 70 - 79 P-9
December 1926 made between Cassum Motee and
Dorabji Cowasji Dawar, Sorabjee Nanabhoy Banajee,
Framjee Dadabhoy Banajee, Hormusjee Nanabhoy
Banaji and Kaikhushroo Pestonjee Davar, the then
Trustees of the Trust.
Certified copy of Indenture of Conveyance dated 15th 80 - 83 P-10
April 1885 made between Dorabjee Nasserwanji
Masani and Limji Maneckjee Banaji, Nanabhoy
Dhunjibhoy Banajee and Furdoonjee Merwanjee
Banaji, the then Trustees of the Trust.
Certified copy of Indenture of Conveyance dated 30th 84 - 89 P-11
April 1885 made between Dorabjee Nasserwanji
Masani and Limji Maneckjee Banaji, Nanabhoy
Dhunjibhoy Banajee and Furdoonjee Merwanjee
Banaji, the then Trustees of the Trust.
Certified copy of Indenture of Conveyance dated 7th 90 - 95 P-12
December 1887 made between the then Trustees of
the Banajee Limjee Agiary conveyed 74.58 sq.yds. out
of the lands now comprised in C.S. No.405 to the
Municipal Corporation for the City of Bombay.
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Certified copy of Registered Deed of Appointment of 96 - 103 P-13
Trustees dated 16th June 1905.
Certified copy of Registered Deed of Appointment of 104 - 116 P-14
Trustees dated 9th October 1916.
Certified copy of Registered Deed of Appointment of 117 - 128 P-15
Trustees dated 18th August 1924.
Certified copy of Registered Deed of Appointment of 129 - 142 P-16
Trustees dated 22nd July 1939.
Certified copy of Registered Deed of Appointment of 143 - 157 P-17
Trustees dated 29th June 1942.
Certified copy of Registered Deed of Appointment of 158 - 176 P-18
Trustees dated 9th July 1951.
Certified copy of Registered Deed of Appointment of 177 - 188 P-19
Trustees dated 23rd June 1976.
Copy of Registered Deed of Appointment of Trustees 189 - 200 P-20
dated 30th October 1972 obtained from the office of
the Charity Commissioner.
Original Registered Deed of Appointment of Trustees 201 - 222 P-21
dated 8th June 2004.
Certified Copy of Schedule A issued by the office of 223 - 224 P-22
the Charity Commissioner under the Parsi Public
Trust Registration Act, 1936.
Original counter foil of the rent receipt for the period 225 - 226 P-23
June - July 2011 issued to Maneck Jijina the late
husband of the Defendant in respect of premises on
the 3rd floor of House No.17
Original counter foil of the rent receipt for the period 227 - 228 P-24
August - September 2011 issued to Maneck Jijina the
late husband of the Defendant in respect of premises
on the 3rd floor of House No.17
Original counter foil of the rent receipt for the period 229 - 230 P-25
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October - November 2011 issued to Maneck Jijina the
late husband of the Defendant in respect of premises
on the 3rd floor of House No.17
Original Receipt No. 2872496 dated 31st December 231 - 232 P-26
2013 in the amount of Rs. 18,966/- for payment of
property tax in respect of building No.13 standing on
property bearing C.S.No.403;
Original Receipt No. 5523807 dated 20th June 2012 in 233 - 234 P-27
the amount of Rs.4,855/- for payment of property tax
in respect of building No.17 standing on property
bearing C.S.No.405;
Original Receipt No. 2872291 dated 31st December 235 - 236 P-28
2013 in the amount of Rs. 4,920/- for payment of
property tax in respect of the Agiary premises
standing on property bearing C.S.No.449;
Original Receipt No. 5523804 dated 20th June 2012 in 237 - 238 P-29
the amount of Rs. 1,959/- for payment of property tax
in respect of building No.16 standing on property
bearing C.S.No.449;
Original Receipt No. 2872290 dated 31st December 239 - 240 P-30
2013 in the amount of Rs. 3,476/- for payment of
property tax in respect of building No.14 standing on
property bearing C.S.No.450;
Original Receipt No. 2872693 dated 31st December 241 P-31
2013 in the amount of Rs. 1,904/- for payment of
repair cess
Original Receipt No. 287270 dated 31st December 242 P-32
2013 in the amount of Rs. 884/- for payment of repair
cess
Original Receipt No. 287270 dated 31st December 243 P-33
2013 in the amount of Rs. 198/- for payment of repair
cess
Original Receipt dated 2nd January 2013 issued by 244 - 245 P-34
National Insurance Company Ltd. to Trust of Banaji
Limji Agiary Trust for a sum of Rs.4,200/- for the
year 2012;
Original Receipt dated 9th January 2012 issued by 246 - 247 P-35
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National Insurance Company Ltd. to Trust of Banaji
Limji Agiary Trust for a sum of Rs.4,123/- for the
year 2011;
Original Receipt dated 20th January 2011 issued by 248 - 249 P-36
National Insurance Company Ltd. to Trust of Banaji
Limji Agiary Trust for a sum of Rs.4,123/- for the
year 2010;
Original Receipt dated 31st December 2009 issued by 250 -251 P-37
National Insurance Company Ltd. to Trust of Banaji
Limji Agiary Trust for a sum of Rs.3,943/- for the
year 2009;
Original Tax Invoice No. 118 dated 11th September 252 P-38
2012 issued by Venus Fire Services to Banaji Limji
Agiary for a sum of Rs.4050/-;
Original Tax Invoice No. 8858 dated 20th October 253 P-39
2011 issued by Venus Fire Services to Banaji Limji
Agiary for a sum of Rs.1400/-;
Original Tax Invoice No. 8651 dated 12th August 2011 254 P-40
issued by Venus Fire Services to Banaji Limji Agiary
for a sum of Rs.2200/-;
Original Tax Invoice No. 8592 dated 29th October 255 P-41
2010 issued by Venus Fire Services to Banaji Limji
Agiary for a sum of Rs.1100/-;
Original Tax Invoice No. 8529 dated 13th August 2010 256 P-42
issued by Venus Fire Services to Banaji Limji Agiary
for a sum of Rs.7000/-;
Original Receipt No.160 dated 15th October 2010 257 P-43
issued by Burjor Framji & Co. to Banaji Limji Agiary
for a sum of Rs.14,937/-
Original Receipt dated 1st July 2009 issued by Meta 258 P-44
Roof Engg. Co. to M/s. Banaji Limji Agiary for a sum
of Rs.1,47,680/-
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Original Receipt No. 695 dated 2nd June 2009 issued 259 P-45
by Dinshaw Electric Works to Banaji Limji Agiary
Trust for the sum of Rs.50,000/-.
Original Receipt No. 696 dated 2nd June 2009 issued 260 P-46
by Dinshaw Electric Works to Banaji Limji Agiary
Trust for the sum of Rs.25,000/-
Original Tax Invoice No. R-006 dated 18th April 2009 261 P-47
issued by AMG INC to M/s. Banaji Limji Agiary for
a sum of Rs.45,041-;
Original Cash Memo No. 17554 dated 16th March 262 P-48
2009 issued by Glitteria The Light Gallery to Banaji
Limji Agiary Trust for a sum of Rs. 4,680/-;
Original Tax Invoice No. 5516 dated 21st January 2009 263 P-49
issued by Sorabji & Co. to M/s. Banaji Limji Agiary
for a sum of Rs.1,330/-;
Original Cash Voucher dated 22nd July 2014 issued by 264 P-51
Banaji Limji Agiary to Homiyar Sherdiwala for a sum
of Rs.8,000/- being his salary for the month of July
2014;
Original Cash Voucher dated 22nd June 2014 issued by 265 P-52
Banaji Limji Agiary to Homiyar Sherdiwala for a sum
of Rs.8,000/- being his salary for the month of June
2014;
Original Cash Voucher dated 27th May 2014 issued by 266 P-53
Banaji Limji Agiary to Homiyar Sherdiwala for a sum
of Rs.8,000/- being his salary for the month of May
2014;
Original Cash Voucher dated 23rd April 2014 issued 267 P-54
by Banaji Limji Agiary to Homiyar Sherdiwala for a
sum of Rs.8,000/- being his salary for the month of
April 2014;
Original Cash Voucher dated 28th March 2014 issued 268 P-55
by Banaji Limji Agiary to Homiyar Sherdiwala for a
sum of Rs.8,000/- being his salary for the month of
March 2014;
Original Cash Voucher dated 24th February 2014 269 P-56
issued by Banaji Limji Agiary to Homiyar Sherdiwala
for a sum of Rs.8,000/- being his salary for the month
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of February 2014;
Original Cash Voucher dated 25th January 2014 270 P-57
issued by Banaji Limji Agiary to Homiyar Sherdiwala
for a sum of Rs.8,000/- being his salary for the month
of January 2014;
Original Cash Voucher dated 26th December 2014 (sic 271 P-58
2013) issued by Banaji Limji Agiary to Homiyar
Sherdiwala for a sum of Rs.8,000/- being his salary
for the month of December 2013;
Original Cash Voucher dated 26nd November 2014 272 P-59
(sic 2013) issued by Banaji Limji Agiary to Homiyar
Sherdiwala for a sum of Rs.8,000/- being his salary
for the month of November 2013;
Original Cash Voucher dated 14th October 2014 (sic 273 P-60
2013) issued by Banaji Limji Agiary to Homiyar
Sherdiwala for a sum of Rs.8,000/- being his salary
for the month of October 2013;
Original Cash Voucher dated 26th July 2014 issued by 274 P-61
Banaji Limji Agiary to Mr. Cyrus Tangri for a sum of
Rs 5000/- in respect of cleaning charges of the Agiary
for the month of July 2014;
Original Cash Voucher dated 25th June 2014 issued by 275 P-62
Banaji Limji Agiary to Mr. Cyrus Tangri for a sum of
Rs 5000/- in respect of cleaning charges of the Agiary
for the month of June 2014;
Original Cash Voucher for the month of March 2013 276 P-63
issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of March 2013;
Original Cash Voucher for the month of February 277 P-64
2013 issued by Banaji Limji Agiary to Mr. Cyrus
Tangri for a sum of Rs 5000/- in respect of cleaning
charges of the Agiary for the month of February
2013;
Original Cash Voucher for the month of January 278 P-65
2013 issued by Banaji Limji Agiary to Mr. Cyrus
Tangri for a sum of Rs 5000/- in respect of cleaning
charges of the Agiary for the month of January 2013;
Original Cash Voucher for the month of December 279 P-66
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2012 issued by Banaji Limji Agiary to Mr. Cyrus
Tangri for a sum of Rs 5000/- in respect of cleaning
charges of the Agiary for the month of December
2012;
Original Cash Voucher for the month of November 280 P-67
2012 issued by Banaji Limji Agiary to Mr. Cyrus
Tangri for a sum of Rs 5000/- in respect of cleaning
charges of the Agiary for the month of November
2012;
Original Cash Voucher for the month of October 281 P-68
2012 issued by Banaji Limji Agiary to Mr. Cyrus
Tangri for a sum of Rs 5000/- in respect of cleaning
charges of the Agiary for the month of October 2012;
Original Cash Voucher for the month of September 282 P-69
2012 issued by Banaji Limji Agiary to Mr. Cyrus
Tangri for a sum of Rs 5000/- in respect of cleaning
charges of the Agiary for the month of September
2012;
Original Cash Voucher for the month of August 2012 283 P-70
issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of December 2012;
Original Cash Voucher for the month of July 2012 284 P-71
issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of July 2012;
Original Cash Voucher for the month of June 2012 285 P-72
issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of June 2012;
Original Cash Voucher for the month of May 2012 286 P-73
issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of May 2012;
Original Cash Voucher for the month of April 2012 287 P-74
issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of April 2012;
Original Cash Voucher for the month of March 2012 288 P-75
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issued by Banaji Limji Agiary to Mr. Cyrus Tangri for
a sum of Rs 5000/- in respect of cleaning charges of
the Agiary for the month of March 2012;
Original Cash Voucher for the month of July 2010 289 P-76
issued by Banaji Limji Agiary to Mr. Eric Guzder for a
sum of Rs 4500/- in respect of cleaning charges of the
Agiary for the month of July 2010;
Original Cash Voucher for the month of March 2010 290 P-77
issued by Banaji Limji Agiary to Mr. Eric Guzder for a
sum of Rs 4500/- in respect of cleaning charges of the
Agiary for the month of March 2010;
Original Cash Voucher for the month of January 291 P-78
2010 issued by Banaji Limji Agiary to Mr. Eric
Guzder for a sum of Rs 4500/- in respect of cleaning
charges of the Agiary for the month of January 2010;
Original Cash Voucher for the month of December 292 P-79
2009 of issued by Banaji Limji Agiary to Mr. Eric
Guzder for a sum of Rs 4500/- in respect of cleaning
charges of the Agiary for the month of December
2009;
Original Cash Voucher for the month of November 293 P-80
2009 of issued by Banaji Limji Agiary to Mr. Eric
Guzder for a sum of Rs 4500/- in respect of cleaning
charges of the Agiary for the month of November
2009;
Certified copy of Indenture of Conveyance dated 16th 294 - 298 P-81
January 1886 made between Mancherji Framjee
Cama and Limji Maneckjee Banaji, Nanabhoy
Dhunjibhoy Banajee, Furdoonjee Merwanjee Banaji,
Sorabjee Jehangirjee Banaji and Darabji Cavasji
Davur, the then Trustees of the Trust.
Certified copy of Index I bearing Reference No. YPP- 299 - 300 P-82
S 1206-3000-12-57-ALC 2
Original letter dated 31st July 2015 301 P-83
Office copy of letter dated 28th October 2015 bearing 302 - 309 P-84
the original acknowledgment of the Defendants'
representative and Mr.Adi Mehta.
Xerox copy of cheque number 080285 dated 8th 310 P-85
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December 2015 drawn in the name of Banaji Limji
Agiary Trust for the amount of Rs.50,000/-.
Xerox copy of cheque number 080284 dated 1st 311 P-86
January 2016 drawn in the name of Banaji Limji
Agiary for the amount of Rs.50,000/-.
16. The following is a list of documents, along with their Exhibit numbers, which
have been tendered by the Defendant in these Suits :
DOCUMENT Page Nos. of Exhibit
Defendants No.
compilation of
documents
Original Probate dated 16-3-1999 granted by the 1-38 D-1
Bombay High Court of the last Will and Testament
of Banoo Nariman Shroff.
Notarized Xerox copy of the Last Will & Testament 39-43 D-2
dated 19-10-1936 of late Sohrabji Nanabhoy Banaji.
Xerox copy Last Will & Testament dated 27-09-1983 44-46 D-3
of Nanabhoy Sohrabji Banaji.
Original Copy of the rent receipt issued in the name 47-54 D-4
of Nanabhoy Sohrabji Banaji.
Certified copy of the Property card which reflects 55-61 D-5
the name of late Sohrabji Nanabhoy Banaji.
Copy of Form 18 showing that the Trust was created 62-67 D-6
by a Deed of Declaration on 9-08-1979
A copy of various bills reflecting the name of 68-71 D-7
Sohrabji Nanabhoy Banaji.
Copy of the application dated 27-12-2012. 72-81 D-8
Original endorsement copy of Letter written to the 82-83 D-9
Collectors office for transfer of the name.
17. I have heard Mr. Tamboly, learned Counsel on behalf of the Plaintiffs,
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and Ms. Khobragade on behalf of the Defendant. The evidence and contentions of
both sides are dealt with, Issue - wise, as follows.
Whether the Plaintiffs prove that they, as Trustees of Banaji Limji
Agiary Trust, are the owners of, and are well and sufficiently entitled, to the
immovable properties which are the subject matter of these Suits?
Issue No. 6 (City Civil Court Suit)
Whether the Plaintiff proves that as the proving sole executor of, and the
universal legatee under the last Will and Testament of late Banoo Nariman Shroff, the
Plaintiff is entitled to claim interest in respect of the properties which are the subject
matters of these Suits?
18.1 The central issue in both these Suits is the title to the Suit Properties.
According to the Plaintiffs, the title to the Suit Properties vests in the Trust and its
Trustees, whereas according to the Defendant, the title thereto vests in her. I have
already set out the rival pleadings in this regard above. The evidence led and
arguments made by both sides in respect of the issue of title, are set out as follows.
18.2 I am first setting out the evidence and arguments advanced by and on
behalf of the Plaintiffs.
18.3 The Plaintiffs have examined Plaintiff No. 1, Shri Adi Burjor Banaji (PW-
1). In his first Affidavit in lieu of examination in chief dated 4 th September 2014, PW-1
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has stated that he is a Trustee of the Trust. He has stated that the Plaintiffs are the
owners of the Suit Properties which have been described in the Schedule annexed as
Exhibit A to the Plaint. He has stated that these properties are shown in the schedule
1 register maintained by the office of the Charity Commissioner as belonging to the
Trust. He has set out the facts pertaining to the establishment of the Banaji Limjee
Agiary Trust in the year 1709 and the facts which have been set out in the recitals
contained in the Trust Deed with respect to the establishment of the Trust, the
Consent Decree dated 18th January 1877 passed by the Bombay High Court in Suit
No.525 of 1876 and the execution of the Declaration of Trust Deed dated 9 th June
1879. He has thereafter adverted to and tendered the various Indentures of
Conveyance dated 13th July 1905, 29th November 1916, 2nd December 1926, 15th April
1885, 30th April, 1885, 16th January 1886, 7th December 1887 registered with the office
of the Sub Registrar of Assurance, conveying the title in respect of the various Suit
Properties in favour of the Trustees of the Trust. He has adverted to and tendered the
various Deeds of Appointments of Trustees relied upon by the Plaintiffs as set out
above and has stated that these are all registered with the Sub Registrar of Assurances.
He has stated that the Trust was initially registered under the Parsi Public Trust
Registration Act, 1936 (Exhibit P-22) and that it has thereafter been registered under
the provisions of the Maharashtra Public Trust Act, 1950. He has tendered the
Municipal receipts issued for payment of Municipal Taxes. He has tendered the
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invoices and receipts in respect of expenses incurred by the Trust over the years in
maintaining the Suit Properties. He has tendered vouchers showing payments made by
the Trust to various persons / employees in the course of managing the day to day
activities in respect of the Suit Properties.
18.4 PW-1 was cross examined on 13th February 2015. In the course of his
cross examination he has stated that the Trust has all the necessary documents
including a conveyance and Deeds of Appointment of Trustees. He has stated that he
has read the Trust Deed. He has stated that any member of the Banaji family can be a
Trustee. He has stated that the family tree of the Banaji family is displayed in the
Agiary itself in a frame mounted on a wall in the Agiary. He has stated that he became
a trustee of the Trust on 3 rd November 1987 and that his father was appointed as a
Trustee in 1952. He has stated that there are no documents showing him to be a
member or descendant of the Banaji family, but his father was the senior most trustee
having served the Trust for 50 years. He has stated that the Agiary was founded by
Banaji Limji in 1709 and that there is no separate Deed of settlement by Banaji Limji
himself. He has denied the allegation that the suit properties never vested with the
Trust. He has further denied that the Trust was only the caretaker of the Agiary or
that it had no ownership right in respect of the other properties. He denied that the
Plaintiffs do not have any document prior to the year 2000 to show that the Trust was
managing the suit properties as the owner thereof. He denied that the property cards
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and MCGM assessment register records still stand in the name of S. N. Banaji.
18.5 PW-1 filed a further Affidavit dated 4 th February 2016 in lieu of
examination in chief in which he stated that after the evidence in this suit was initially
led and closed by both sides, the Defendant along with Shri Adi Mehta (PW-2)
addressed a letter dated 31st July 2015 to the Trustees of the Trust as landlords of
Banajee Mansion Building (Exhibit P-83), pointing out the need for urgent repairs in a
portion of that building which had sunk in. He stated that he replied by his letter dated
28th October 2015 (Exhibit P-84) with respect to the repairs which were required to be
carried out. He stated that thereafter, the Defendant as her contribution towards the
repairs of Banajee Mansion issued two cheques bearing Nos.080284 and 080285 in
favour of the Trust for sums of Rs.50,000/- each . He tendered copies of these
cheques (Exhibits P-86 and P-85). He further stated that the repairs were in fact
carried out to Banajee Mansion.
18.6 PW-1 was cross examined on 5th July 2016 in respect of the additional
evidence led by him. Whilst questions were put to him by the learned Advocate for the
Defendant in respect of his appointment as a Trustee of the Trust, his knowledge qua
the handling of affairs of the Agiary and resolutions passed relating to the institution
of the Suit, no questions were asked or suggestions were put to him regarding the
contents of this Affidavit dated 4th February 2016.
18.7 The Plaintiffs examined Shri Adi Noshir Mehta (PW-2) who filed his
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Affidavit in Lieu of Examination-in-Chief dated 4th February 2016. He stated that in
the last week of July 2015, a portion of the flooring of the 3 rd floor of Banajee Mansion
caved in causing damage to the premises where he is a Licensee. This area was directly
below the washing area of the room occupied by the Defendant on the 3 rd floor of
Banajee Mansion. He stated that the Defendant, her daughter Jeroo Colah, his son
Noshir Mehta and he had an informal meeting to decide how to deal with the situation
and they together decided to approach the Trustees of the Trust being the landlords of
the building to carry out the necessary repairs. He stated that he thereupon had the
letter dated 31st July 2015 typed in his office and he signed the same. He stated that he
personally spoke to the Defendant on the telephone and informed her that he had
prepared the letter as decided, read out and explained the letter to her and told her
that he was sending it to her for her signature. He stated that thereafter his peon took
the letter to the Defendant for her signature and after sometime brought it back to his
office with the Defendant's signature affixed thereon. He stated that the Defendant
was at all times a willing party to the decision to request the landlords of Banajee
Mansion to carry out the repairs and was clearly aware of and understood the contents
of the letter which she signed. He stated that he has seen paragraph 7 of the Affidavit
dated 4th December 2015 of the Defendant in reply to Notice of Motion 1950 of 2015
(which was taken out by the Plaintiffs for leading additional evidence) in which the
Defendant has taken a stand that PW-2 acted in collusion with the Trustees and
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deliberately took her signature on the aforesaid letter and that she was unaware of its
contents. He stated that this stand of the Defendant is false and incorrect. He stated
that he met the Defendant in the month of December and reminded her to make
payment of her share towards the repairs to be carried out in Banajee Mansion. He
stated that at no point of time did the Defendant ever accuse him of taking advantage
of her or forcing her to sign the letter dated 31st July 2015 or any other letter.
18.8 PW-2 was cross-examined on 4th July 2016. He stated that he is a tenant
occupying a room on the south side of the first floor of Banaji Mansion, since 1982. He
stated that there is no room number. He stated that there were no minutes recorded of
the meeting held amongst the Defendant, himself and their children. He stated that it
was an informal meeting and therefore the question of documenting the same in the
form of minutes did not arise. He stated that there are three to four tenants residing in
Banajee Mansion and that they were not part of this meeting since the portion of the
building which had caved in affected only the Defendant and him. Therefore, the
question of having a meeting with all the tenants or occupants did not arise. He further
stated that he was not aware of any repairs being carried out by MHADA, and that he
was only aware of a complaint made to the landlord. He stated that since he is a tenant
for several years, he knows Plaintiff No. 1 well enough. He stated that he has vague
knowledge about the dispute between the Defendant and the Trust but not in much
detail. In response to a case put to him on behalf of the Defendant that the premises in
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Banajee Mansion are reserved only for priests of the Agiary or their legal heirs, he
stated that he has no knowledge of any such reservation and that he is residing in the
said building for the last several years though he is not a priest. He further stated that
there are others also residing in the said building though they are not priests. He stated
that he is not aware that the Defendant is not acquainted with the English language.
With respect to the contents of the letter dated 31 st July 2015, he stated that he talked
to the Defendant and since he converses with the Defendant in Gujarati, he explained
the contents of the same to her in Gujarati. He stated that in fact they had decided
together that such a letter would be written to the landlord. When a case was put to
him that he had not explained the contents of the letter in Gujarati language either
word to word or line by line to the Defendant, he stated that he explained to her in
Gujarati that what they had discussed was put by him in the letter, i.e. to request the
landlord to repair the washing room i.e. mori which had caved in. He stated that as far
as he knew, only he and the Defendant had contributed to the repairs and that he is not
aware about the others. He denied that he came before the Court only to help /
support the Trustees.
18.9 In respect of the above Issues qua the title to the Suit Properties, Mr.
Tamboly on behalf of the Plaintiffs submitted as follows :
(a) In so far as the Suit Property forming part of CS No. 449 is
concerned, Mr. Tamboly contended that :
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(i) The Trust is the owner of the land bearing City Survey No.449
situated at Banaji Street, Fort, Mumbai 400 001 alongwith the Banaji Limji Agiary and
outhouses situated thereon. The description of this immovable property has been set
out in detail in at page 31 of the Plaint.
(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.
(iii) Mr. Tamboly laid emphasis on the contents of the Trust Deed to
contend that the immovable property of the Agiary and the land standing thereunder
were vested unto the Trust by the members of the Banaji Family.
(iv) He next relied upon the registered Deed of Conveyance dated 13th
July 1905 (Exhibit P-6). According to the Plaintiffs, by this conveyance Manekji
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Hormasji Kanga conveyed the land adjoining the Banaji Limji Agiary to Ferdunjee
Banaji, Sorabjee Banaji, Dorabjee Davar, Cooverji Banaji and Sorabjee Banaji, the then
Trustees of the Trust.
(v) He contended that the aforesaid registered deed of conveyance
clearly demonstrates that the immovable property mentioned therein has been
conveyed to the Trust.
(vi) Mr. Tamboly contended that the aforesaid two properties now
form part of Cadastral Survey No. 449. The property card in respect of C.S. No.449
(Exhibit P-87) reflects that this property stands in the names of the Trustees of the
Trust as the beneficial owners thereof.
(vii) He further contended that over the years there have been various
Deeds of Appointment of the Trustees of the Trust. All of these have been registered
with the Sub Registrar of Assurances. These Deeds of Appointment are dated 16 th
June 1905 (Exhibit P-13), 9th October 1916 (Exhibit P-14), 18th August 1924 (Exhibit P-
15), 22nd July 1939 (Exhibit P-16), 29th June 1942 (Exhibit P-17), 9th July 1951 (Exhibit
P-18), 30th October 1972 (Exhibit P-20), 23rd June 1976 (Exhibit P-19) and 8th June
2004 (Exhibit P-21). The aforesaid Suit Properties forming part of C.S. No. 449 are
reflected as the property of the Trust in each of these registered Deeds of
Appointment, and the same have vested in each new incoming Trustee by virtue of the
respective registered deeds of appointment of trustees.
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(viii) Mr. Tamboly next contended that the Trust has been registered
under the provisions of the Maharashtra Public Trust Act, 1950 as the Banaji Limji
Fire Temple. The property at C.S. No.449 is reflected in the Schedule 1 register of
trusts (Exhibit P-4) maintained by the office of the Charity Commissioner under the
provisions of sections 18 to 21 of the Maharashtra Public Trusts Act, 1950.
(ix) Mr. Tamboly relied upon two judgments viz. Shrinivasdas Bavri
v/s Meherbai & Ors.1 and Shamsudin Tajbhai v/s Dahyabhai Maganlal2 to contend
that the recitals contained in old deeds are binding on the parties thereto and to
persons claiming under them. Relying upon the same, he contended that the recitals
in the Trust Deed which is a registered document must be accepted, especially in view
of the fact that the Defendant has not produced any evidence to show to the contrary.
(b) In so far as the Suit Property forming part of CS No. 450 is
concerned, Mr. Tamboly contended as follows :
(i) The property situated at City Survey No.450 has been described
more particularly at page 32 of the Plaint.
(ii) The property card in respect of this property (Exhibit P-87)
shows that the same stands in the names of the Trustees of the Trust.
(iii) By and under a registered Deed of Conveyance dated 29 th
November 1916 (Exhibit P-7), one Bai Hirabai conveyed the property now standing on
1 AIR 1916 PC 5
2 1923 BLR 105
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C.S. No.450 to Cooverji Banaji, Dorabjee Davar, Sorabjee Banaji, Navroji Framjee and
Framjee Banaji as Trustees of the Trust.
(iv) Mr. Tamboly contended that this immovable property at C.S.
No.450 is reflected in the Deeds of Appointment of Trustees of the Trust dated 18 th
August 1924 (Exhibit P-15), 22nd July 1939 (Exhibit P-16), 29th June 1942 (Exhibit P-
17), 9th July 1951 (Exhibit P-18), 30th October 1972 (Exhibit P-20), 23rd June 1976
(Exhibit P-19) and 8th June 2004 (Exhibit P-21) as being owned by the Trust.
(v) He contended that the property at C.S. No.450 has also been
described as the property belonging to the Trust in Schedule 1 register maintained by
the office of the Charity Commissioner (Exhibit P-4).
(vi) He contended on this basis that it is thus established that the
property at C.S. No.450 has been conveyed to the Trustees of the Trust in the year
1916 and that the Plaintiffs are today the owners thereof.
(c) In so far as the Suit Property forming part of CS No. 403 is
concerned, the Mr. Tamboly contended as follows :
(i) The property at C.S. No.403 has been more particularly
described at page 33 of the Plaint. The property card (Exhibit P-1) shows that this
property stands in the names of the Trustees of the Trust.
(ii) By and under a registered Deed of Conveyance dated 2 nd
December 1926, one Cassum Motee and other conveyed the property at C.S. No.403
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to the then Trustees of the Trust (Exhibit P-9).
(iii) Mr. Tamboly contended that the property at C.S. No.403 is
reflected in the Deeds of Appointment of Trustees of the Trust dated 22 nd July 1939
(Exhibit P-16), 29th June 1942 (Exhibit P-17), 9th July 1951 (Exhibit P-18), 30th October
1972 (Exhibit P-20), 23rd June 1976 (Exhibit P-19) and 8th June 2004 (Exhibit P-21) as
being owned by the Trust.
(iv) He contended that the property at C.S. No.403 has also been
described as the property of the Trust in the Schedule 1 register maintained by the
office of the Charity Commissioner (Exhibit P-4).
(v) Based on the above, Mr. Tamboly contended that the property at
C.S. No.403 has been conveyed to the Trustees of the Trust in the year 1926 and that
the Plaintiffs are today the owners thereof as Trustees of the Trust.
(d) In so far as the Suit Property forming part of CS No. 405 is
concerned, Mr. Tamboly contended as follows :
(i) This property has been more particularly described at page 33 of
the Plaint. The property card for C.S. No.405 (Exhibit P-1) shows that the Trustees of
the Trust as the owners of that property.
(ii) The property at C.S. No.405 is reflected in the Deeds of
Appointment of Trustees of the Trust dated 18 th August 1924 (Exhibit P-15), 22nd July
1939 (Exhibit P-16), 29th June 1942 (Exhibit P-17), 9th July 1951 (Exhibit P-18), 30th
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October 1972 (Exhibit P-20), 23rd June 1976 (Exhibit P-19) and 8th June 2004 (Exhibit
P-21) as being owned by the Trust.
(iii) By and under a registered Deed of Conveyance dated 30th April
1885 (Exhibit P-11) Dorabjee Masani, Avabai Masani, Edulji Masani, Cawasji Masani
and Nasserwanji Masani conveyed a portion of what is now C.S. No.405 to the then
Trustees of the Trust.
(iv) Mr. Tamboly contended that by and under a registered Deed of
Conveyance dated 15th April 1885 (Exhibit P-10) one Dorabjee Masani conveyed
another portion of what is now C.S. No.405 to the then Trustees of the Trust.
(v) Mr. Tamboly contended that by and under a registered Deed of
Conveyance dated 16th January 1886 (Exhibit P-81) a further portion of what is now
C.S. No.405 was conveyed to the then Trustees of the Trust by Mancherji Cama.
(vi) He contended that the total area of land purchased by the then
Trustees through the aforementioned three Deeds of Conveyance dated 15 th April
1885, 30th April 1885 and 16th January 1886 was 194 sq.yards. By and under a registered
Deed of Conveyance dated 7th December 1887, a portion of land admeasuring 74.58
sq.yards was sold to the Municipal Corporation for the City of Bombay, out of the total
area of 194 sq. yards. The remaining land admeasuring 119.42 sq. yards still belongs to
the Trustees of the Trust. The property now numbered as C.S. No.405 has been
described as being owned by the Trust in all the Deeds of Appointment registered with
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the Sub Registrar of Assurances. This property has also been shown to be the property
of the Trust in the Schedule 1 register of the Trust maintained by the office of the
Charity Commissioner (Exhibit P-4).
(vii) Based on the above, Mr. Tamboly contended that the Trust is the
owner of the property at C.S. No.405.
(e) Mr. Tamboly relied upon sections 18 to 21 of the Maharashtra
Public Trust Act, 1950, to contend that when applying for registration of a Trust, the
immoveable properties of the Trust must be disclosed in the prescribed format and the
Deputy or Assistant Charity Commissioner is required to make an inquiry as to
whether the property described is the property of the Trust and must record his
findings thereon. Necessary entries in that regard are required to be made in the Public
Trust Register. In the present case the public trust has been registered and its
registration Schedule 1 has been opened under the aforesaid Maharashtra Public Trust
Act, 1950. The suit properties have been mentioned therein as the properties of the
Trust. He therefore contended that this further establishes that the title of the Suit
Properties vests solely in the Trust.
(f ) Mr. Tamboly next contended that the Trust has been maintaining
the Suit Properties and paying municipal taxes and repair cess in respect thereof as has
been evidenced by the receipts in respect of the same (Exhibits P 26 to P 33).
Similarly, payment vouchers to the staff of the Agiary and its outhouses are evidence
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of expenses incurred by the Trust in maintaining the properties (Exhibits P 51 to P
90).
(g) Mr. Tamboly referred to the oral evidence led by PW-1, which has
been set out above. He contended that PW1 was not cross examined at all on his
testimony and documents tendered, as evidence of the Trust's ownership of the Suit
Properties. According to him, the Defendant did not cross examine PW-1 on the
contents of the Declaration of Trust, the various registered Deeds of Conveyances,
the various registered Deeds of Appointment of Trustees reflecting the names of the
Trustees as the owners of the Suit Properties, the Property Cards showing the names
of the Trustees of the Trust as the beneficial owners of the Suit Properties. PW-1 was
not cross examined on his case that the municipal taxes are paid by the Trust and the
receipts are issued in the name of the Trust, or in respect of his testimony of payment
of salaries to the staff of the Trust for maintaining the Suit Properties. Mr. Tamboly
thus contended that the testimony of PW-1, and the documents tendered by him in
evidence on the core issue of title to the Suit Properties has gone uncontroverted and
unchallenged in cross examination.
(h) Mr. Tamboly next relied upon the evidence led by PW-1 and PW-
2 with respect to the events which transpired after the final hearing of the Suits first
commenced, and more particularly on Exhibits P-83 to P-86. Relying upon the same,
Mr. Tamboly contended that even during the pendency of this Suit, the Defendant by
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her conduct has accepted the Plaintiffs to be the owners of Banaji Mansion by calling
them the landlords thereof, though it is her express case that she is the owner of the
Suit Properties which include Banaji Mansion. Moreover, the Defendant has not
further examined herself to rebut what has been stated by PW-1 and PW-2 in this
regard.
(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
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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
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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
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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.
19.2 The Defendant was cross examined on 31st July 2015. She has stated that
she has prepared her Affidavit in lieu of examination in chief dated 30 th March 2015.
She stated that she does not remember the contents of her Affidavit. When asked if
she can read or write in English she answered in the negative and stated that she can
only sign in English. When asked as to the basis on which the seven properties (which
include the Suit Properties) were included by her in the Probate petition qua the will
of deceased Banoo Nariman Shroff, she stated that she was asked to do so by her
Advocate and Solicitor Mr.Bharat Merchant. She volunteered in response to this
question that the seven properties are in the name of Shri S. N. Banajee. She stated
that she was not in possession of the original Will of Banoo Nariman Shroff and that
the notarised copy of the Will was on the basis of a photocopy. She stated that she got
the same notatized but does not remember when or before whom it was notarized.
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When the statement of Nanabhoy Sorabji Banaji in his Will to the effect that the
landlords of the Banaji Mansion are the Trustees of the Trust, was put to her, she
stated that she does not remember if anyone has explained this to her at any point of
time. When she was asked if it was correct that Nanabhoy Sorabji Banaji had himself
stated in his Will that the property of Banaji Mansion belongs to the Trustees of the
Trust and that they are the landlords thereof, she stated that what is stated therein is
incorrect. She stated that the contents of Banoo Nariman Shroff's Will were
explained to her in Gujarati in the past. She stated that Banoo Nariman Shroff's
statement in her own Will that the property of Banaji Mansion belongs to the Trust is
incorrect. She stated that seven properties were included in the Probate Petition since
certain papers were produced before the Solicitors which showed that all the
properties were in the name of Sorabji Nanabhoy Banaji. Her statement in her
Affidavit to the effect that she had made search in the office of the Collector was put to
her and she was questioned as to what occasioned her visit to the office of the
Collector on 14th June 2011 and take inspection of the Property Card in respect of the
suit property. To this she answered that she had not gone to the Collector's office and
in any event, did not remember that she had gone to the Collector's office and taken
search of documents. The Court put a question to her that if she did not remember
anything then on what basis has she made a statement in paragraph 6 of her Affidavit
to that effect. To this she answered, that she had never been to the office of the
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Collector of Mumbai. The papers were received from the Collector's office by her
Advocate Mr.Bharat Merchant and after receipt of these documents, she realized that
the properties are in the name of S.N.Banajee. Mr. Merchant advised her to pay the
taxes and bring the receipts to him. She stated that she has in her possession receipts
showing that she has paid taxes in respect of the seven properties but that she did not
produce the same before the Court as she was not advised to do so. When the
Property Card of the suit properties was put to her and she was shown that the names
of Sorabjee N. Banajee and Ors. are shown to be in beneficial ownership as Trustees of
the Trust, she stated that the record is incorrect and that they cannot be shown as
Trustees since according to her there is no Trust. She stated that she did not
remember if all of the properties were purchased by Sorabjee N. Banajee. She stated
that she has not come across any such documents whereunder properties have been
conveyed in favour of the Trustees of the Trust. She stated that her letter to the
Collector (Exhibit D-9) was prepared by Mr. Vinod Dalal. She stated that her husband
was not paying rent for occupation of the tenement on the 3 rd floor of Banajee Mansion
but that they were paying compensation for being used towards the upkeep of the fire
at the fire temple. She stated that her husband's name was Maneksha Adarji Jijina. She
confirmed that the rent receipts at Exhibits P24 and P25 issued by the Trustees of the
Trust in the name of her husband were in fact so issued to her husband. She denied
that the name of Sorabjee Nanabhoy Banajee appearing on the documents tendered by
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her was in his capacity as a Trustee of the Trust and not in his individual capacity. She
denied that she has no right, title or interest in the Suit Properties.
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.
20.2 She next contended that the Trust does not exist at all. She again 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 submitted that Banaji Limji
has not founded the Trust. She submitted that it is for the Plaintiffs to prove that the
Trust was established or that the same was vested with immovable properties, which
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according to her, the Trust has not done.
20.3 Ms. Khobragade argued that the Plaintiffs have failed to prove that the
"Banaji Limji Agiary" and the "Banaji Limji Fire Temple" are one and the same,
though these expressions have been used to describe the Trust in different documents.
20.4 Ms. Khobragade next contended that the Trust Deed sets out that the
Trustees are to be the members of the family of Banaji Limji. That apart there is a
specific mode of appointment of Trustees in the Trust Deed. The Plaintiffs have failed
to prove their lineage from the Banaji family. The Plaintiffs have failed to prove that
they are validly appointed Trustees of the Trust. Therefore, the Plaintiffs cannot claim
ownership of the Suit Properties for and on behalf of the Trust.
20.6 Ms. Khobragade contended that since according to the Defendants there
is no Trust nor have the Plaintiffs proved that they are validly appointed Trustees,
there cannot be any conveyance of properties in favour of a non existent Trust. Thus,
the Deeds of Conveyance in respect of the Suit Properties in favour of the Trust
cannot come to the Plaintiffs rescue, as there exists no Trust to begin with.
20.7 She next contended that the deeds of appointment of Trustees cannot
operate as conveyances or be considered as title documents.
20.8 Ms. Khobragade next contended that her client is the ultimate
beneficiary of the Suit Properties by virtue of being the sole beneficiary under the Will
of Banoo Nariman Shroff. The Suit Properties were owned by S. N. Banaji, the father
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of Banoo Nariman Shroff. His name is reflected in the Property Card and Municipal
records in respect of the Suit Properties. The Suit Properties have never been
conveyed by Sorabji Nanabhoy Banaji or his successors in title to the Trust. The
Defendant is the ultimate beneficiary of all the properties of Sorabji Nanabhoy Banaji
as his estate vested in his son Nanabhoy Sorabji Banaji and subsequently Nanabhoy
Sorabji Banaji's estate vested in his sister Banoo Nariman Shroff. Since the Defendant
is the beneficiary to the estate of Banoo Nariman Shroff, she is the owner of all of the
Suit Properties.
20.9 Ms. Khobragade on behalf of the Defendant contended that once she has
obtained Probate of the will of Banoo Shroff, and once the schedule of assets thereto
has been amended to include the Suit Properties, the Defendant is entitled to claim
the Suit Properties as her own.
21. In rejoinder, Mr. Tamboly made the following submissions to deal with
the aforesaid contentions of the learned Advocate of the Defendant :
21.1 Mr. Tamboly pointed out that there are serious contradictions between
the case pleaded by the Defendant in her Written Statement, examination in chief and
her cross examination. Moreover, the cross examination shows that the Defendant has
come with a bogus case, and when confronted with the same, the Defendant has
disowned documents which have been tendered and relied upon by she herself in this
case.
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21.2 In response to the Defendant's contentions that the Trust doesn't exist,
Mr. Tamboly submitted that the same is wholly erroneous. Under section 18 of the
Maharashtra Public Trusts Act, 1950, the Trustees of a public trust are required to
make an application in the prescribed form and with the required particulars to the
concerned Deputy / Assistant Charity Commissioner for registration of the public
trust. Under section 19 of the Act, once such an application under section 18 has been
received, the concerned Deputy / Assistant Charity Commissioner shall make an
inquiry in the prescribed manner inter alia for determining whether the trust exists
and whether such trust is a public trust. Under section 20 of the Act, upon completion
of the inquiry under section 19, the Deputy / Assistant Charity Commissioner shall
record his findings and the reasons therefore. Under section 21 of the Act, the
Deputy / Assistant Charity Commissioner shall make entries in the public trust
register maintained under section 17, as per the findings recorded under section 20.
These entries are final and conclusive, subject to further change and subject to the
provisions of the Act. The Banaji Limji Agiary Trust has been registered with the
office of the Charity Commissioner under PTR No.C-418(BOM) under the
provisions of sections 18 to 21 of the Maharashtra Public Trust Act, 1950. The same is
evident from the certified copy of the Schedule 1 Register maintained by the office of
the Charity Commissioner in respect of the Banaji Limji Agiary Trust (Exhibit P-4).
21.3 Mr. Tamboly thus submitted that the fact that the Trust exists is final
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and conclusive as per the provisions of the Act, and the same cannot be disputed
before this Court in these proceedings. In this regard he relied upon Section 80 of the
Maharashtra Public Trusts Act, 1950 Act, which reads thus :
"80. Save as expressly provided in this Act, no Civil Court shall have
jurisdiction to decide or deal with any question which is by or under this Act
to be decided or dealt with by any officer or authority under this Act, in
respect of which the decision or order of such officer or authority has been
made final and conclusive."
21.4 Based on this provision he argued that this Court does not have
jurisdiction to determine the question of existence of the Trust which has been raised
by the Defendant, as the same has already been determined by the Authorities under
the aforesaid Act, and such determination is final and binding.
21.5 Mr. Tamboly next contended that the Trust is inter changeably also
known as Banaji Limji Agiary and Banaji Limji Fire Temple (Agiary), and this is
evident from the Change Report, which has been taken on record as Exhibit P-2 in this
Suit, which shows the name of the Trust as Banaji Limji Fire Temple (Agiary),
showing the same public trust registration number viz. PTR No.C-418(BOM).
Moreover, the Trust Deed dated 9th June 1879 (Exhibit P-5) itself sets out that the
then Trustees were Trustees of Banaji Limji Agiary Trust or Banaji Limji Fire
Temple. All of the Deeds of Appointment of new trustees which are at Exhibits P-13
to P-21 record the name of the Trust as Banaji Limji Agiary or Banaji Limji Fire
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Temple. This conclusively establishes that the Plaintiffs are the trustees of the Trust
known inter changeably as Banaji Limji Agiary or Banaji Limji Fire Temple. "Agiary"
is the colloquial term for Fire Temple and both words mean one and the same thing.
According to him the Defendant is making a desperate attempt to demonstrate that
the Banaji Limji Agiary Trust and the Banaji Limji Fire Temple are not one and the
same but Nothing could be further from the truth.
21.6 Mr. Tamboly argued that the submission that the Trust does not exist as
there is no Trust Deed is factually incorrect. The Trust Deed is very much in
existence and a certified copy thereof is on record as Exhibit P-5. The same clearly
evidences the existence of the Trust. The Defendant's argument that the Trust did
not exist as there was no Settlor of the Trust is also factually incorrect according to
him. The recitals of the Trust Deed dated 9th June 1879 (Exhibit P-5) clearly
demonstrate that the members of the Banaji family were the settlors of the Trust and
that the Agiary premises and certain monies were settled unto Trust for the benefit of
the members of the Zoroastrian community professing the Zoroastrian faith. The
Defendant has also argued that the Trust does not exist as there only exists a Deed
Poll and not a Trust Deed. It is submitted by Mr. Tamboly that it is not necessary in
law, for the creation of a trust to have a Trust Deed comprising of a Settlor and
Trustees. A Declaration by persons holding the property in trust is sufficient and
meets all the requirements of a trust set out in the Indian Trust Act 1882. The Deed of
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8th June 1879, which was executed pursuant to directions passed by this Court, is also
registered with the Sub Registrar of Assurances and subsequently registered with the
office of the Charity Commissioner under the provisions of the Maharashtra Public
Trusts Act, 1950.
21.7 Dealing with the Defendant's contentions qua the validity of the
Plaintiff's appointment as Trustees of the Trust, Mr. Tamboly submitted that The
Assistant/Deputy Charity Commissioner has jurisdiction to determine questions
pertaining to existence and registration of the Trust under Sections 19 to 21 of the
Maharashtra Public Trust Act, 1950. Under Section 22 of the Act, the power to
decide change reports and to record whether or not a trustee has or has not been
validly appointed also vests with the Assistant/Deputy Charity Commissioner. The
relevant change reports recording the relevant registered Deeds of Appointment of
Trustees and change reports recording the appointment of the Plaintiffs as Trustees of
the Banaji Limji Agiary Trust are already on record at Exhibit P-2 and P-3 in this Suit.
Therefore, the Defendant cannot contend that the Plaintiffs are not validly appointed
Trustees according to the Plaintiffs.
21.8 Mr. Tamboly contended that under Section 80 of the Maharashtra
Public Trust Act, 1950, no Civil Court has jurisdiction to decide or deal with any
question which is to be decided or dealt with by the officer appointed under that Act.
Therefore, once a change report pertaining to the appointment of a Trustee has been
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accepted by the Assistant / Deputy Charity Commissioner, and the necessary entry to
that effect has been effected in the public trust register, no Civil Court can go behind
the validity of the same. Therefore, it is submitted by him that this Court cannot go
behind the same nor can the Defendant agitate the validity of the same before this
Court as the same is not the appropriate forum to decide such questions. In support of
this submission, he relied upon a Full Bench decision of this Court in Keki Pestonji v.
Khodadad Merwan Irani3, and upon a Division Bench judgment of this Court in the
case of Charu K. Mehta v/s Lilavati Kirtilal Mehta Medical Trust & Ors. 4 Relying
upon these judgments, Mr. Tamboly contended that it is clear that once the
concerned Deputy / Assistant Charity Commissioner renders a finding and records a
change under section 22 of the Maharashtra Public Trusts Act, 1950, the same is final
and conclusive, subject only to being overturned in Appeal. Therefore, the Defendant
cannot call upon this Court to go behind the Change Reports accepted by the
competent authorities under that Act.
21.9 Mr. Tamboly contended that the Defendant's claim to title to the
properties of the Trust is unbelievable to say the least. The Defendant claims to be
the sole executrix and legatee under the Will dated 1 st December 1983 of one Banoo
Nariman Shroff. The Defendant obtained probate of her Will on 16 th March 1999
from the Bombay High Court. At the time of filing the Testamentary Petition for
3 AIR 1973 of Bombay 130
4 2012 SCC Online Bom 1679 : (2013) 1 Bom CR 23
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Probate, none of the properties of the Trust were mentioned in the Schedule of
properties as belonging to Banoo Shroff. However, by an application dated 22 nd
December 2011, almost 10 years after the death of Banoo Shroff, the Defendant
applied to the Prothonotary and Senior Master of the Bombay High Court for
amending the list of immoveable properties annexed to the probate of the Will of
Banoo N. Shroff. This amended list of immoveable properties included the properties
in question in the present Suit as well as two other erstwhile properties of the Trust
which had been acquired by the BEST in 1972. On the strength of this amended
probate, the Defendant applied to the Collector for transferring the properties of the
Trust in her name.
21.10 Mr. Tamboly argued that the reliance of the Defendant on the municipal
records and property cards to state that the Suit Properties belong to S. N. Banaji is
misplaced, as that the name of S.N.Banaji appears on all official documents in his
capacity as a Trustee of the Trust and not in his individual capacity.
21.11 Mr. Tamboly argued that S. N. Banaji, Nanabhoy Banaji and Banoo
Nariman Shroff themselves always treated the Trust as the owners of the properties in
question. For example, S. N. Banaji is a signatory to the Deed of Appointment of
Trustees dated 29th June 1942 (Exhibit P 17) which shows all the properties in
question as the properties belonging to the Trust.
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21.12 Mr. Tamboly pointed out that Nanabhoy Banaji in his own Will has
stated the Trust to be the owner and landlord of Banaji Mansion, situated on land
bearing C.S. No.405. Banoo has similarly described the Trust as the owner of Banaji
Mansion situated on C.S. No.405. Moreover all of these three persons have listed in
their respective Wills what they believed to be their immoveable properties which
they were bequeathing by way of their respective wills. Not even one of them has
listed a single property belonging to the Trust as their solely owned property which
they were bequeathing under their own wills.
21.13 Mr. Tamboly submitted that it is a well settled position in law that
Probate of a Will does not confer title and that the Probate Court is not concerned
with questions of title of any property forming part of the estate of a deceased. Thus,
the Defendant cannot rely upon the probate of Banoo Shroff's will as a source of her
title. The Defendant has to independently prove that Banoo Nariman Shroff as well as
her predecessors in title were owners of the suit properties. The Defendant has
miserably failed to do so, since Banoo Shroff, Sorabjee Banaji and Nanabhoy Banaji
were never owners thereof, nor did they ever claim to be so.
21.14 Mr. Tamboly submitted that all of the above clearly goes to show that
the Defendant has done nothing but attempted to take undue advantage of the
appearance of the name of Sorabjee Nanabhoy Banaji in the property card and the
other records, misconstrue the same to contend that these properties were his
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individually owned properties and therefore by this convoluted logic have been
inherited by her.
21.15 Mr. Tamboly submitted that the Defendant's conduct runs contrary to
her pleaded case of title to the Suit Properties. He pointed out that the Defendant has
herself accepted the Trust as the landlord of Banaji Mansion standing on C. S. No.
405 on different occasions in the following manner :
(a) The Defendant has paid rent in respect of her husband's
premises situated on the 3rd floor of Banaji Mansion. The rent receipts are at Exhibits
P-23 to P-25.
(b) The Defendant has also admitted that she is a tenant in her
Affidavit in Reply dated 14th August 2009 filed in Suit No.7732 of 1988 in the City
Civil Court at Bombay.
(c) The Defendant has after evidence in the suit had been led,
addressed a letter dated 31st July 2015 to the Plaintiffs referring to them as landlords of
Banaji Mansion (Exhibit P-83). Thereafter in furtherance of the directions of the
Plaintiffs in their letter dated 28th October 2015 (Exhibit P-84), the Defendant has
issued 2 cheques of Rs. 50,000/-(Exhibits P-85 and 86) each as her contribution to the
repair work in respect of the portion of Banaji Mansion between the 2 nd and 3rd floor
which had collapsed.
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(d) The Defendant has not led any evidence to rebut this evidence or
explain her admissions and actions set out above.
25.15 Thus, according to Mr. Tamboly the Defendant's own conduct
demonstrates that she has treated the Plaintiffs to be the landlords and owners of at
least Banaji Mansion, which is one of the suit properties, though she contends to the
contrary in these two Suits. The Defendant is by her own conduct estopped from
contending that the Plaintiffs are not the owners of the suit properties.
26. I have considered the pleadings filed, evidence taken on record and
arguments advanced by both sides. My findings with respect to Issue No. 1 qua the
title of the Trust to the Suit Properties is as follows.
26.1 As noted above, the central issue in these Suits is the issue of title to the
Suit Properties. The Plaintiffs state that the title to the same vests in the Trust,
whereas the Defendant claims that the same vests in her. I shall first deal with the
Plaintiffs case in this regard.
26.2 I shall begin with the first property set out in the schedule of Suit
Properties annexed as Exhibit A to the Plaint in the High Court Suit i.e. the land
bearing C. S. No. 449 situated at Banaji Street, Fort, Mumbai 400 001 and the Agiary
and outhouses situated thereon. The Plaintiffs have tendered the Trust Deed 9 th June
1879 (Exhibit P-5) executed by and between Sorabjee Pestonjee Banaji, Limji
Maneckjee Banajee, Pestonjee Burjorjee Davur, Nanabhoy Dhunjeebhoy Banajee and
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Furdonjee Merwanjee Banajee. The Trust Deed was registered with the Sub
Registrar of Assurances at Bombay on 9th June 1879 under Registration No.228-A at
pages 62 to 71, Volume 46 of Book No.1. The following recitals of the Trust Deed
shed light on the establishment of the Agiary property, the transfer of the same to the
Trust by the members of the Banaji family, and the facts leading up to the execution of
the Trust Deed :
"We, SORABJEE PESTONJEE FRAMJEE, LIMJEE MANOCKJEE,
PESTONJEE BURJORJEE DAVUR, NANABHOY DHUNJEEBHOY
BANAJEE, AND FURDOONJEE MERWANJEE BANAJEE, all members
of the Banajee family, and of Bombay, Parsee Inhabitants Trustees of the
Banajee Limjee Agiary or Fire Temple, send greeting :
WHEREAS the Banajee Limjee Agiary or Fire Temple, situate in
Nanabhoy's Lane in the Fort of Bombay, was established in or about the
Christian year 1709, corresponding with the Yezdazerd year 1078, by
Banajee Limjee, late of Bombay, Parsee inhabitant, and was consecrated on
the Zoroastrian ninth day Adur and ninth month Adur Shenshai in the
year of Yezdazerd 1078, corresponding with the Christian date 25 th June
1709, and the ceremonies were performed according to the Shenshai rites,
and a chawl was built by the said Banajee Limijee adjacent to the said
Agiary, out of the rents and profits whereof funds were provided for the
discharge of the current expenses of the said Agiary. And whereas in or
about the Christian year 1843, corresponding with the Yezdazerd year 1213,
the said Agiary and chawl having become dilapidated were pulled down, and
in the same year the sum of Rs.23,000 was raised by subscription by the
late Framjee Cawasjee, Cursetjee Cowasjee, Rustomjee Cawasjee deceased,
the then senior members of the said Banajee family, and by other members
of the same family as set forth in the Schedule hereunder written and
marked A, and paid to the said Framjee Cowasjee for the restoration and
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endowment of the said Agiary, and after rebuilding and restoring the said
Agiary and defraying the expenses thereof, a balance of Rs.11,034-0-85
remained in the hands of the said Framjee Cowasjee at the date of his death
on the 11th day of February 1851. AND WHEREAS after the restoration of
the said Agiary the consecration thereof, and the replacement of the Sacred
Fire therein, was effected in the presence of the Parsee community on the
15th day of April 1845, corresponding with the 20 th day Byram of 7th month
Adur of the year 1241 Yezdazerd. And whereas the said Framjee Cowasjee
duly made and published his last will and testament writing dated the 5 th
day of July 1828, and a codicil thereto dated the 15 th day of December,
1831, and thereby appointed his widow Bachoobae and his two sons
Pestonjee Framjee and Nanabhoy Framjee Executrix and Executors thereof,
and the said will and codicil were subsequently proved by the said
Bachoobae and the said Pestonjee Framjee and Nanabhoy Franjee in the
then Supreme Court of judicature at Bombay. And whereas the said
Bachoobae, by a circular letter in Goojrathee dated the 23 rd day of August,
1854, addressed to the surviving subscribers and to the representatives of
deceased subscribers to the said Fund, suggested to them the propriety of
making a Trust Deed, and nominating three or more Trustees from among
them, to whom the balance in her hands of the said Fund might be paid.
And Whereas it was agreed by a majority of the surviving subscribers, and
the representatives of deceased subscribers to the said Fund, by
memoranda on the said circular letter, that Dadabhoy Rustomjee Banajee,
Sorabjee Pestonjee Framjee, Limjee Manockjee, Dhunjeebhoy Framjee,
and Hormusjee Ruttonjee Banajee should be appointed Trustees. And
Whereas in consequence of certain objections made by two dissentient
subscribers to the appointment of the Trustees, a meeting of all the
subscribers and representatives of deceased subscribers was duly convened
on the 13th day of February 1855, and resulted in the confirmation of the
appointment of the Trustees. And Whereas the said Dadabhoy Rustonjee
Banajee, Sorabjee Pestonjee Framjee, Limjee Manockjee, Dhunjeebhoy
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Framjee, and Hormusjee Ruttonjee Banajee took charge of the said Agiary
and other property belonging to the Agiary, and, at the request of the said
subscribers and representatives of deceased subscribers to the said Fund,
further undertook to receive all further subscriptions for the benefit of the
Agiary by members of the said banajee family. And Whereas the said
Hormusjee Ruttonjee Banajee took no part in the management of the
Agiary. An Whereas the said balance received by the said Bachoobae as
Executrix, with certain further subscriptions and accumulations of interest,
after payment of charges for maintenance of the said Agiary, were from time
to time invested by her in Four and Five per cent Promissory Notes of the
Government of india. And Whereas on the 26 the December 1859,
Promissory Notes of the Government of India for Rs.13,000 (Thirteen
thousand), namely, Five Promissory Notes numbered respectively 18434,
18436, 29782, 35035, and 45172, each of Rupees one thousand, bearing
interest at 4 per cent per annum, one Promissory Note numbered 12259, for
Rupees two thousand, bearing interest at 4 per cent per annum, and six
Promissory Notes numbered respectively 8199, 9894 to 9898 each of
Rupees one thousand, bearing interest at 5 per cent. Per annum, and a sum
of Rs.15.2.42, being the balance in the hands of the executors of the late
Framjee Cowasjee of the Trust Fund, were respectively duly transferred
and paid to the said Dadabhoy Rustomjee, Sorabjee Pestonjee Framjee,
Limjee Manockjee, and Dhunjeebhoy Framjee and Trustees. And Whereas
the said Dhunjeebhoy Framjee resigned his trusteeship in the year 1864, and
the said Hormusjee Rutonjee Banajee died on the 26th day of December,
1865. And Whereas owing to disputes between the said Dadabhoy
Rustomjee and his Co-Trustees the said Sorabjee Pestonjee Framjee and
Limjee Manockjee, the said Sorabjee Pestonjee Franjee and Limijee
Manockjee found it necessary to submit such differences to the members
of the Banajee family, and a meeting of such members was duly convened
and held on the 10th day of February, 1876, whereat Messrs. Pestonjee
Burjorjee Davur and Nanabhoy Dhunjeebhoy Banajee were appointed
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Trustees in the places of the said Dhunjeebhoy Framjee and Hormusjee
Ruttonjee Banajee respectively, and it was also resolved that the said
Sorabjee Pestonjee Framjee and Limjee Manockjee should, conjointly with
the said Pestonjee Burjorjee Davur and Nanabhoy Dhunjeebhoy Banajee,
endeavour to bring about an amicable understanding with the said
Dadabhoy Rustomjee. And Whereas endeavours were made to bring about
an amicable settlement with the Said Dadabhoy Rustomjee, but without
result, and at another meeting of the members of the Banajee family held on
the 11th June 1876, it was, among other matters, resolved that legal steps
should be taken to have the said Dadabhoy Rustomjee removed from his
trusteeship. And Whereas suit No.525 of 1876 was accordingly filed in the
High Court of Bombay by the said Sorabjee Pestonjee FRamjee, Limjee
Manockjee, Pestonjee Burjorjee Davur, and Nanabhoy Dhunjeebhoy
Banajee against the said Dadabhoy Rustomjee, praying that he might be
removed from acting as a Trustee of the said Agiary, and restrained from
interfering further in the management thereof, that another person might
be appointed by the majority of the members of the Banajee family present
at a meeting to be convened under the orders of the Court to be a Trustee
in the said defendant's place and stead, and for the purposes aforesaid all
proper or necessary accounts, directions, or enquiries might be taken, given,
or made, and by a consent decree in the said suit dated the 18 th day of
January 1877, it was ordered that the parties to the suit should meet within
three months from the date thereof in the Banajee Limjee Agiary, or at
such other place as the majority of the Trustees should fix, on such
occasions as should be arranged, and transact and complete within that
time the following business: namely, First, all account books and papers
relating to the said Fire Temple should be produced for their examination
and settlement, and all Funds belonging to the Trust should forthwith be
transferred to the names of all the Trustees. Second, a Trust Deed of the
said Fire Temple should be prepared and executed, and if any difference of
opinion should arise with regard to the Trust Deed, or the terms thereof,
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the decision of the majority of the Trustees should be conclusive and
binding. Third, a set of rules should be framed for the proper
management of the Fire Temple, the same to be signed and confirmed by a
resolution at a meeting of the Trustees to be convened for the purpose,
such rules to be subsequently observed by all the Trustees, and that in case
a difference of opinion should arise in framing any particular rule or rules,
the same should be referred to two arbitrators, one to be chosen by each of
the parties, the Plaintiffs and defendants to the suit, with power to those
Arbitrators to select their own umpire in writing before entering upon the
arbitration, and that their or his decision on the subject should be binding
on all the parties. And Whereas the said Dadabhoy Rustomjee Banajee
neglected and refused to carry out the said decree although repeatedly
called upon by his Co-Trustees so to do, and on the 13 th day of August
1877 resigned his trusteeship. And Whereas at a meeting of the members
of the Banajee family, duly convened and held at the Cowasjee Byramjee
Atush Byram on the 9th September, 1877, the said Furdoonjee Merwanjee
Banajee was duly appointed a Trustee in the place of the said Dadabhoy
Rustomjee Banajee. And Whereas all funds belonging to the Trust have
been transferred to the names of the present Trustees as directed by the said
decree, and are correctly set forth in the schedule marked B hereunder
written.
Now, know ye, and these presents witness, that in pursuance of the
directions contained in the said decree, it is hereby declared and agreed
that we, the said Sorabjee Pestonjee Framjee, Limjee Manockjee,
Pestonjee Burjorjee Davur, Nanabhoy Dhunjeebhoy Banajee, and
Furdoonjee Merwanjee Banajee, and the survivors and survivor of us,
and the executors and administrators of such survivor; will at all times
hereafter stand seized, possessed of, or interested in the said Agiary and
hereditaments described in the Schedule marked C hereunder written,
and will stand possessed and interested in the Securities and monies
described in the schedule marked B hereunder written, and other the
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Trust monies and Securities for the time being respectively upon the
Trust, and to and for the ends, intents and purposes, and subject to the
powers, provisos and declarations hereinafter respectively declared and
contained concerning the same, that is to say, In Trust to permit all
members of the Zoroastrian community professing the Zoroastrian
faith to use the said Agiary subject to the rules aforesaid, and In Trust to
retain the said Securities in their present investment, or to sell the same or
any part thereof, and invest the proceeds thereof and any monies for the
time being in our hands in Securities of the Government of India, or in
shares of the Bank of Bombay, Bengal or Madras, with power to vary such
Securities, and to pay or apply the interest and income of such Securities, or
so much thereon as may in our judgment and discretion appear necessary, in
performance annually on the anniversary of the death of the said Banajee
Limjee of the usual anniversary ceremony at a cost not exceeding Rs.15 per
annum, and in maintaining and repairing the said Agiary and any other
buildings belonging to the Trust, and in maintaining the establishment
necessary for the said Agiary, and in the celebration of the religious,
charitable and other like services and ceremonies from time to time to be
performed in the said Agiary, or in anywise connected therewith, with
power, in the event of any accident by fire or otherwise happening to the
said agiary or any other buildings belonging to the Trust, to apply so much
of the principal funds as may be necessary in rebuilding and restoring such
Agiary and buildings. And it is hereby further declared, that it shall be lawful
for the Trustees or Trustee for the time being, if unanimously of opinion
that it will be expedient so to do, to apply the whole or any part of the Trust
Funds in the purchase of hereditaments of the nature of freehold and in the
erection or alteration of buildings thereon, with power to insure such
buildings against fire, and it is hereby further declared, that the Trustees or
Trustee for the time being shall have power to appoint such person or
persons as they or he shall think fit to act as the Agent of the Trustees or
Trustee in receiving and applying the interest, rents and annual income of
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the Trust Property at such reasonable remuneration as they or he may think
proper, without being answerable for any loss occasioned by the neglect or
default of any such person or persons. And it is further declared, that an
account of the Trust property and of the receipts and expenditure in respect
thereof, and the disposition thereof, shall be made out every year; and shall
be open to inspection by all subscribing members of the said Banajee family
and further; that an account shall be kept with one of the local Banks in the
names of the Trustees or Trustee for the time being, and that upon the
receipt of any further subscriptions to the Trust Funds, the same shall be
paid to such accounts with such Bank, and that whenever the same shall
amount to the sum of Rupees five Hundred or upwards, after payment of all
expenses and charges, the amount thereof shall be invested in the names or
name of the Trustees or Trustee for the time being in such of the before
mentioned investments as the Trustees or Trustee for the time being shall
think fit. And further, that the receipt in writing of the Trustees or Trustee
for the time being of these Presents for any monies, rents or securities paid
or transferred to them or him in pursuance of these Presents, or the Trust
thereof, shall effectually discharge the person or persons paying or
transferring the same therefrom, and from being concerned to see to the
application thereof. And it is hereby further declared, that if we, or any of
us, or other the Trustees or Trustee for the time being, shall leave Bombay
for a longer period than twelve months, or shall die or desire to be
discharged from, or refuse or become incapable to act, then and so often the
surviving or continuing Trustees or Trustee (ad for this purpose every
retiring or refusing Trustee shall, if willing to act in the execution of this
power, be considered a continuing Trustee), or in the event of there being
no Trustee, the executors or administrators of the last surviving Trustee
shall immediately, by deed or writing under their or his hands and seals, or
hand an seal attested by one or more witnesses, appoint a new Trustee or
new Trustees to be selected from the members of the Banajee family in the
stead of the Trustee or Trustees so leaving Bombay, dying or desiring to be
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discharged, or refusing or becoming incapable to act, and upon every such
appointment the said Agiary and other Trust premises shall be so conveyed
and transferred that the same may become vested in the new Trustee or
Trustees jointly with the surviving or continuing Trustees or Trustee, or
solely as the case may require, and every such new Trustee shall (as well
before as after the Trust Property shall have become so vested) have the
same powers, authorities and discretions as if he had been originally
appointed a Trustee, and it is hereby declared, that the Trustees or Trustee
for the time being shall be respectively chargeable only with such monies or
Securities for money as they respectively shall actually receive
notwithstanding his joining in any receipt for the sake of conformity, and
shall not be answerable for each other, nor for any banker, broker or other
person in whose hands any of the Trust monies or Securities shall be placed,
nor for the insufficiency or deficiency of any Shares or Securities, nor
otherwise for involuntary losses, and that the Trustees for the time being
may respectively reimburse themselves out of the Trust premises all
expenses incurred in or about the execution of the aforeTrusts and powers.
And it is hereby lastly provided, that in the event of any Trustee publicity
abjuring the Zoroastrian religion, or embracing any other religion, he shall
thereupon be disqualified from acting, and shall cease to act, as a Trustee,
and shall forthwith join in conveying and transferring all the Trust property,
so that the same may become vested in a new Trustee or Trustees jointly
with the surviving or continuing Trustees or Trustee, or solely as the case
may require." [Emphasis supplied]
26.3 The aforesaid contents of the Trust Deed make it abundantly clear that
the Agiary was established by Banaji Limji, and was subsequently vested unto the
Trust to be used by the members of the Zoroastrian community professing the
Zoroastrian religion. The Trust Deed is a registered document.
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26.4 The next document pertaining to C. S. No. 449 is a registered deed of
conveyance dated 13th July 1905 executed by Manekji Hormasji Kanga in favour of
Ferdunjee Banaji, Sorabjee Banaji, Dorabjee Davar, Cooverji Banaji and Sorabjee
Banaji, the then Trustees of the Trust, the relevant portions of which are as follows :
"This Indenture made the thirteenth day of July one thousand nine
hundred and five Between Maneckjee Hormasji Kanga of Bombay
Parsee Inhabitant (hereinafter called the Vendor) of the one part and
Inrdoorjee Inerwanjee Bamanjee Sorabjee Jehangirjee Banajee, Dorabjee
Cawasjee Dawer Cooverjee Nanabhoy Banajee & Sorabjee Nanabhoy
Banajee. The Trustees of the Banajee Limjee Fire Temple also of the
same place Parsi Inhabitants (hereinafter called the Trustees which term
shall include every succeeding trustee & trustees of the said Fire
Temple) of the other part Whereas the said Vendor being said &
possessed of or otherwise well & sufficiently entitled to the
hereditaments & premises including the well hereinafter described hath
agreed to sell the same to the Trustees at or for the price or sum of
Rupees One Thousand Nine Hundred & Forty Two only law this
Indenture witnesseth that in pursuance of the aforesaid agreement & in
consideration of the sum of Rupees one thousand nine hundred & forty
two only to the said Vendor paid by the Trustees at or immediately before
the execution of these presents (the payment & receipt of which said
sum of Rupees one thousand nine hundred and forty two he the said
Vendor doth hereby admit and acknowledge and of from the same &
every part thereof doth acquit release & discharge the Trustees for ever
by these presents) He the said Vendor doth hereby grant & convey unto
the Trustees. All that price or parcel of land containing by
admeasurement one hundred & twelve square yards or thereabouts &
registered by the collector of Land Revenue under Old No.8485 new
no.4924 old survey no.415 & new survey no.9377 together with the
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messuage tenement or building & the well standing thereon assessed by
the municipality of Bombay under ward A no. 1487 street no.5,6,7, all
which premises are situate at and on the south side of Cawasjee Patel
cross Lane at Bombay with Registration sub-district of Bombay and are
bounded on the east by the property of Seerinbai Maneckjee Patel
daughter of Maneckjee Heerjeebhoy Patel on or towards the west by the
Banajee Fire Temple on or towards the north by the property of
Bhowsar Naran Daya and on or towards the south partly by the property
of Sorabjee Cawasji Pathan and Furdoonjee Shapurjee Masani and
partly by the property of the said Vendor & were formerly & are now in
the occupation of the tenants of the said Vendor & are delineated on the
place hereunto annexed & thereon surrounded with a red color boundary
line. Together with all & singular the out houses buildings courts
compounds ways paths passages sewers drains wells waters watercourses
lights privileges easements advantages & appurtenances whatsoever to
the said hereditaments & premises belonging or in anywise appertaining
or with the same now or hereafter held occupied or enjoyed or reputed to
below or be appurtenant thereto And all the deeds writings & evidences
relating to or in anywise concerning the title to the said hereditaments &
premises in the possession or power of the said Vendor or which he can
without suit procure And all the estate right title & interest whatsoever
both at law & in equity of him the said Vendor in to or out of the said
message land hereditaments and premises and every part thereof I have
and to hold all and singular the said message old no. 8485 new no.4924
old survey no.415 & new survey no.9377 together with the measurage
tenement or building & the well standing thereon assessed by the
Municipality of Bombay under ward A no.1487 street no.5,6,7, all which
premises are situate at and on the south side of Cawasjee Patel Cross
Lane at Bombay in the Registration Sub-district of Bombay and are
bounded on the East by the property of Seerinbai Maneckjee Patel
daughter of Maneckjee Heerjeebhoy Patel on or towards the west by the
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Banajee Fire Temple on or towards the North by the property of Bhowsar
Naran Daya and on or towards the South partly by the property of
Sorabjee Cawasjee Pathan and Furdoonjee Shapurjee Masani and partly
by the property of the said Vendor & were formerly & are now in the
occupation of the tenants of the said Vendor & are delineated on the
place hereunto annexed & thereon surrounded with a red color bound
any line. Together with all & singular the outhouses buildings courts
compounds ways paths passages sewers drains wells waters watercourses
lights privileges easements advantages & appurtenances whatsoever to
the said hereditaments & premises belonging or in anywise appertaining
or with the same now or hereafter held occupied or enjoyed or reputed to
below or be appurtenant thereto"
26.5 The aforesaid instrument is a registered deed of conveyance in favour of
the then Trustees of the Trust.
26.6 The Plaintiffs have tendered the Property Card in respect of the Suit
Property situated at C. S. No. 449. The same shows that the property stands in the
name of the Trustees of the Trust.
26.7 The Plaintiffs have produced registered deeds of appointment of new
trustees of the Trust dated 16th June 1905 (Exhibit P-13), 9th October 1916 (Exhibit P-
14), 18th August 1924 (Exhibit P-15), 22nd July 1939 (Exhibit P-16), 29th June 1942
(Exhibit P-17), 9th July 1951 (Exhibit P-18), 30th October 1972 (Exhibit P-20), 23rd June
1976 (Exhibit P-19) and 8th June 2004 (Exhibit P-21). These registered instruments
which have been executed by the then Trustees of the Trust mention the creation of
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the Trust and the vesting of the Agiary in the Trustees. The schedules of the same
describes the Agiary and the property at C. S. No. 449 as belonging to the Trust.
26.8 The Trust has been registered under the provisions of the Maharashtra
Public Trust Act, 1950 as the Banaji Limji Fire Temple under registration number
PTR No.C-418(BOM). The Plaintiffs have tendered the Schedule 1 register of trusts
(Exhibit P-4) maintained by the office of the Charity Commissioner under the
provisions of sections 18 to 21 of the Maharashtra Public Trusts Act, 1950, which
reflects the property at C.S. No. 449 as the property of the Trust.
26.9 The Privy Council in the case of Shrinivasdas Bavri v/s Meherbai &
Ors. (supra) relied upon by Mr. Tamboly, has held as follows :
"Although, however, recitals in a Deed are only evidence as against the
parties to the Deed or those who claim through or under them, it has long
been the custom of Conveyances, at any rate in this country, to
provide in contract of sale and purchase that recitals in Deeds of a
certain shall be sufficient to satisfy a Purchaser of the truth of the fact
recited. The existence of such a custom is material whenever a Purchaser
is bound to accept a marketable title, for the insertion of a usual condition
in a contract of resale could not be depreciatory. In this country the usual
condition (now recognized by statute) is confined to Deeds dated not less
than twenty years before the contract and there is no evidence of any
custom among Bombay Conveyances relating to more recent Deeds. In
their Lordships opinion, a condition making the recitals in the release of
1902 evidence of the fact recited would have been depreciatory, especially
having regard to the fact that the Vendors cannot produce one of the title
deeds deposited for the purpose of the equitable charge or the equitable
charge itself." [Emphasis supplied].
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26.10 In the case of Shamsudin Tajbhai v/s Dahyabhai Maganlal (supra) it
was held as follows :
"There is a conveyancing practice in Bombay that, in the absence of
anything to the contrary in the agreement for sale, (a) in investing a
title, recitals in deeds of over twenty years old should be accepted in the
absence of anything throwing suspicion on their character, and (b) the
costs of obtaining certified copies of the orders and decrees mentioned in a
document of title should be borne by the purchaser.
Nos. 1 to 5 relate to recitals in the Conveyance of 1863 (Exhibit L). That
was a document about forty seven years old and the recitals contained
therein should have been accepted, in the absence of anything throwing
suspicion on their character. Mr.Rustamji, Plaintiffs Solicitor has given
uncontradicted evidence of the practice of Bombay solicitors to accept
recitals in Deeds of over twenty years old, in the same way as is done in
England under the Vendor and Purchaser Act, 1874, (Williams, Vol.I, p.
186) [Emphasis supplied].
26.11 The aforesaid two judgments are authorities for the proposition that in
the absence of anything to the contrary, the recitals in deeds of some age, must be
accepted. The Trust Deed is dated 9 th June 1879 and is a registered document. There
is no evidence whatsoever placed on record by the Defendant to cause any doubts or
suspicion qua its recitals and contents. In the absence of the same, and considering the
vintage of the document and the fact that it is a registered instrument, I have no
hesitation in accepting the contents thereof to be true and correct. Once that be the
case, the contents of the Trust Deed pertaining to the establishment of the Agiary in
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the year 1709, the facts leading up to the creation of the Trust, and the vesting of the
Agiary in the Trust for the benefit and use of members of the Zoroastrian community
stands established. That apart, the Agiary and its outhouses forming part of the
property now renumbered as C. S. No. 449 have been contemporaneously shown to be
the property of the Trust in each of the registered deeds of appointment of Trustees
of the Trust. The Property Card in respect of C.S. No. 449 stands in the name of the
Trustees of the Trust.
26.12 Apart from the above, the Plaintiffs have tendered property tax Original
Receipt No. 5523807 dated 20th June 2012 in the amount of Rs.4,855/- for payment of
property tax in respect of building No.17 standing on property bearing C.S.No.405
(Exhibit P-27), Original Receipt No. 2872291 dated 31st December 2013 in the amount
of Rs. 4,920/- for payment of property tax in respect of the Agiary premises standing
on property bearing C.S.No.449 (Exhibit P-28) and Original Receipt No. 5523804
dated 20th June 2012 in the amount of Rs. 1,959/- for payment of property tax in
respect of building No.16 standing on property bearing C.S.No.449 (Exhibit P-29).
PW-1 has referred to these documents in paragraphs 11c, d and e of his Affidavit in
lieu of examination in chief dated 4th September 2014. He has not been cross examined
on this aspect at all. The Defendant has not produced any documents to show that she
is paying the property tax. In answer to question nos. 16 and 17 of her cross
examination, the Defendant stated that she has receipts to show that she has paid
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taxes in respect of the Suit Properties but that she has not produced the same as she
was not advised to do so. The stand taken by her is not a credible one. Considering the
nature of the issue at hand viz title to the suit properties, payment of property tax
would be an extremely relevant factor. The Trust has produced evidence to show that
it has been paying the same. The Defendant has not. Therefore by the Defendant not
producing the same, the only inference which can be drawn is that the Defendant has
not paid any such municipal taxes in respect of any of the Suit Properties and she does
not have any documents to show the same in her custody. Therefore the evidence led
by the Plaintiffs that the Trust has been paying the municipal property tax in respect
of the Suit Properties and the contents of the property tax invoices and receipts have
gone unchallenged and unrebutted by the Defendant, and must be accepted.
26.13 Coming to next of the Suit Properties set out in the schedule annexed as
Exhibit A to the Plaint in the High Court Suit i.e. the land bearing C. S. No. 450, the
property card in respect of the same (Exhibit P-87) stands in the name of the trustees
of the Trust as the beneficial owners thereof.
2614. The Plaintiffs have tendered the registered deed of conveyance dated
29th November 1916 (Exhibit P-7) executed by Bai Hirabai in favour of Cooverji
Banaji, Dorabjee Davar, Sorabjee Banaji, Navroji Framjee and Framjee Banaji as
Trustees of the Trust, the relevant portions of which are as follows :
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"THIS INDENTURE made the 29th day of November in the Christian
year nineteen hundred and sixteen Between Bai Hirabai daughter of
Dinshaji Merwanji Irani and wife of Jamshedji Merwanji Tarachand of
Bombay Parsi inhabitant the administratrix of the property and credits of
Sorabji Kawasji Pathan deceased hereinafter unless otherwise designated
called "the Vendor" (which expression shall where the context so requires
or admits be deemed to include the heirs executors and administrators of
the First part, Cooverjee Nanabhoy Banajee of Bombay Parsi inhabitant
hereinafter unless otherwise referred to called "the Purchaser" of the
Second part and Dorabji Cowasji Dawar Cooverjee Nanabhoy Banajee,
Sorabjee Nanabhoy Banajee, Nowrojee Jehangeerjee Framjee and Framjee
Dadabhoy Banajee all of Bombay Parsi inhabitants the Trustees of the
Banajee Limjee Agiary or Fire Temple hereinafter called "the Trustees"
(which expression shall be deemed to include (the survivors or survivor of
them and other the trustees or trustee for the time being of the said Banajee
Limjee Agiary or Fire Temple) of the Third part Whereas Sorabji Kawasji
Pathan late of Bombay Parsi inhabitant was during his lifetime and at the
date of his death hereinafter mentioned seized and possessed as absolute
owner of the land and hereditaments situate at Nanabhoy Lane also called
Nanabhoy Cross Lane within the Fort of Bombay particularly described in
the Schedule hereto and hereinafter expressed to be hereby granted And
Whereas the said Sorabji Kawasji Pathan died intestate at Bombay on or
about the 2nd day of February 1897 And whereas Letters of Administration
of the Property and credits or the said Sorabjee Kawasjee Pathan were on
the 21st day of December 1901 granted by the High Court of Judicature at
Bombay to the Vendor limited until one of the next-of-kin of the said
deceased should obtain Letters of Administration of the said property and
credits granted to him or her from the said Court And Whereas no next-of-
kin of the said deceased Sorabjee Cawasjee Pathan has yet come forward to
obtain Letters of Administration to his Estate And Whereas the Vendor has
agreed with the Purchaser for the absolute sale of the hereditaments and
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premises for the price or sum of Rupees Three hundred as earnest and in
part payment of the purchase money on the 22 nd day of September 1916
And Whereas the Purchaser is desirous that the said land hereditaments and
premises should be conveyed to and be held by the Trustees on behalf of
and for the benefit of the Banajee Limjee Agiary or Fire Temple as part of
the endowment for the said Fire Temple and has requested the Vendor that
the said land hereditaments and premises shall be so conveyed to the
Trustees Now This Indenture Witnesseth that in pursuance of the said
Agreement and in consideration of the sum of Rupees three hundred paid by
the Purchasers to the Vendor as earnest money as aforesaid and of the
further sum of Rupees Twenty-seven hundred upon the execution hereof
paid by the Purchaser to the Vendor (the receipt of which sums of Rupees
Three hundred and Rupees Twenty-sever hundred making together the
total sums of Rupees Three thousand the Vendor doth hereby acknowledge)
the Vendor at the request and by the direction of the Purchaser testified by
his being a party to and executing these presents doth hereby grant unto the
Trustee all that piece or parcel or land with the messuage or dwelling house
standing thereon situate at Nanabhai Lane also called Nanabhoy Cross Lane
within the Fort of Bombay more particularly described in the Schedule
hereto and delineated on the Plan thereof hereto annexed Together with all
buildings yards courts areas sewers, drains, water courses, lights, liberties,
privileges, easements and appurtenances whatsoever to the said
hereditaments and premises belonging or in anywise appertaining as usually
held or enjoyed therewith or reported to belong, or be appurtenant thereto
and all estate right title, interest, claim and demand of the Vendor as such
administratrix as aforesaid unto or upon the said premises and every part
thereof To Have And To Hold the said hereditaments and premises
hereinbefore expressed to be hereby granted (unto and for the use of the
Trustees in Trust to hold the same as an endowment for the Banajee Limjee
Agiary or Fire Temple and to apply the nett rents and income thereof for or
towards the general expenses of the said Agiary and the Vendor doth hereby
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for herself her heirs executors and administrators covenant with the
Trustees that she the Vendor has not at any time heretofore done or
knowingly omitted or suffered or been party or privy to anything whereby or
by means whereof the said hereditaments and premises hereinbefore
expressed to be hereby granted or any part thereof are is or may be
encumbered or affected in any manner whatsoever or whereby she the
Vendor is in anywise prevented from granting the said premises in manner
aforesaid"
26.15 The Plaintiffs have produced registered deeds of appointment of new
trustees of the Trust dated 18th August 1924 (Exhibit P-15), 22nd July 1939 (Exhibit P-
16), 29th June 1942 (Exhibit P-17), 9 th July 1951 (Exhibit P-18), 30th October 1972
(Exhibit P-20), 23rd June 1976 (Exhibit P-19) and 8th June 2004 (Exhibit P-21). The
schedule of each of these registered deeds reflect the property at C. S. No. 450 as
belonging to the Trust. The Schedule 1 register of the Trust (Exhibit P-4) maintained
by the office of the Charity Commissioner under the provisions of sections 18 to 21 of
the Maharashtra Public Trusts Act, 1950, also reflects the property at C.S. No. 450 as
the property of the Trust. Thus, there is contemporaneous evidence that the Trustees
of the Trust across various years have always treated this as the property of the Trust,
and assigned and vested the same unto all incoming Trustees.
26.16 The Plaintiffs have tendered Original Receipt No. 2872290 dated 31st
December 2013 in the amount of Rs. 3,476/- for payment of property tax in respect of
building No.14 standing on property bearing C.S.No.450 (Exhibit P-30). PW-1 has
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referred to this document in paragraph 11 e of his Affidavit in lieu of examination in
chief dated 4th September 2014. Even in this case, there is no cross examination on
this aspect by the Defendant. I have already drawn an inference that the Defendant
does not have any documents to show that she has paid the property tax in respect of
any of the Suit Properties. The Plaintiffs evidence of payment of property tax in
respect of the property at C. S. No. 450 has gone unchallenged and unrebutted.
26.17 The Plaintiffs have thus produced title documents and statutory records
in respect of the property at C. S. No. 450 forming part of the Schedule of Properties
at Exhibit A to the High Court Suit.
26.18 Coming to the next of the Suit Properties set out in the schedule
annexed as Exhibit A to the Plaint in the High Court Suit i.e. the land bearing C. S.
No. 403, the property register card in respect of the same stands in the name of the
Trustees of the Trust as the beneficial owners thereof (Exhibit P-1 Colly).
26.19 The Plaintiffs have tendered the registered Deed of Conveyance dated
2nd December 1926 by one Cassum Motee in favour of the then Trustees of the Trust
(Exhibit P-9), the relevant portions of which are quoted as follows :
"THIS INDENDURE MADE AT Bombay this Second day of
December in the Christian year Ninteen hundred and twenty-six Between
Cassum Motee of Bombay Halai Memon Mahomedan Inhabitant
hereinafter called "the Vendor" (which expression shall unless repugnant
to the context or meaning thereof include his heirs executors and
administrators) of the First part, Kaikhasro Pestonji Davar also of Bombay
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Parsi Inhabitant of the Second part and Dorabji Cawasji Dawar, Sorabjee
Nanabhoy Banajee, Framjee Dadabhoy Banajee, Hormusjee Nanabhoy
Banajee and Kaikhasro Pestonji Davar all of Bombay, Parsi Inhabitants the
present Trustes of the Banajee Limjee Agiary or Fire Temple in Bombay
hereinafter called "the Purchasers" (which expression shall unless
repugnant to the context or meaning thereof be deemed to include the
survivors or survivor of them and the heirs executors and administrators
of such survivor their or his assigns) of the Third Part WHEREAS the
Vendor is absolutely possessed of or otherwise well and sufficiently
entitled for an estate equivalent to an estate in fee simple in possession
free from all incumbrances to the land hereditaments and premises
described in the schedule hereto and hereinafter expressed to be hereby
granted AND WHEREAS the Vendor agreed with the said Kaikhasro
Pestonji Davar for the absolute sale of the said hereditaments and
premises and the inheritance thereof in possession free from all
incumbrances at the price of Rupees Fourteen thousand (Rs.14,000/-)
and received Rupees Five hundred (Rs.500/-) as earnest money on the 1st
day of October 1926 AND WHEREAS the said Agreement was entered
into by the said Kaikhasro Pestonji Davar as agent for and on behalf of the
Purchasers and the sum of Rupees Five hundred paid as earnest money as
aforesaid was money belonging to the Purchasers as the said Kaikhasro
Pestonji Davar doth hereby admit AND WHEREAS the said Kaikhasro
Pestonji Davar has requested the Vendor to execute a Conveyance of the
said hereditaments and premises direct to the Purchasers which the
Vendor has agreed to do upon the said Kaikhasro Pestonji Davar joining in
these presents in the manner hereinafter appearing
NOW THIS INDENTURE WITNESSETH that in pursuance of the
said Agreement and in consideration of the sum of Rupees Five hundred
paid as earnest money to the Vendor by the said Kaikhasro Pestonji Davar
on behalf of the Purchasers on the 1st day of October 1926 and of the
further sum of Rupees Thirteen thousand and five hundred on or before
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the execution of these presents to the Vendor paid by the Purchasers out
of funds held by them as Trustees of the said Banajee Limjee Agiary or
Fire Temple (the receipt of which sums of Rupees Five hundred and
Rupees thirteen thousand five hundred making together the sum of
Rupees Fourteen thousand (Rs.14,000/-) the Vendor doth hereby
acknowledge and from the same does hereby release the Purchasers) He
the Vendor doth hereby grant, convey and assure and the said Kaikhasro
Pestonji Davar doth hereby confirm unto the Purchasers All That piece or
parcel of land hereditaments and premises more particularly described in
the Schedule hereto and delineated on the Plan thereof hereto annexed
TOGETHER WITH all houses, out houses, edifices, buildings, yards,
compounds, sewers, trees, drains, ways, paths, passages, gullies, wells,
water, water-courses rights, lights, liberties, privileges, easements
advantages and appurtenances whatsoever to the said hereditatments and
premises belonging or in anywise appertaining or usually held or occupied
therewith or reputed to belong or be appurtenant thereto TOGETHER
ALSO with the full benefit of the covenant for production of a certain
Indenture of Gift bearing date the 3rd day of October 1906 and expressed
to be made between Nusserwanjee Hormasjee Mehta of the one part and
Bhikhaiji widow of Maneckji Dadabhoy Bhagat of the other part contained
in an Indenture of Conveyance dated 8th January 1921 and expressed to be
made between Bai Bhikhaiji Maneckji Bhagat of the first part and Pirojsha
Pallanji Paul of the second part and Simon Reuben by the third part AND
ALL the estate, right title and interest property claim and demand
whatsoever of them the Vendor and the said Kaikhasro Pestonji Davar
respectively in to and upon the said premises and every part thereof TO
HAVE AND TO HOLD the said land hereditaments and premises
hereinbefore expressed to be hereby granted unto and to the use of the
Purchasers as such Trustees as aforesaid for ever upon the trusts and with
and subject to the powers and provisions contained in the Deed of
Constitution of the said Banajee Limjee Agiary or Fire Temple or other
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Deed or Deeds Supplemental thereto AND the Vendor doth hereby
covenant with the Purchasers that notwithstanding any act deed or thing
by the Vendor done or executed or Knowingly suffered to the contrary he
the Vendor now has good right in himself to grant the hereditaments and
premises hereby granted or expressed so to be unto and to the use of the
Purchasers in manner aforesaid AND THAT THEY the Purchasers
shall and may at all times hereafter peaceably and quietly possess and
enjoy the said hereditaments and premises and receive the rents and
profits thereof without any lawful eviction interruption claim or demand
whatsoever from or by the Vendor or by any person or persons lawfully or
equitably claiming from under or in trust for him AND that free from all
incombrances whatsoever created made or suffered by the Vendor or any
person or persons lawfully or equitably claiming as aforesaid. AND
FURTHER that the Vendor and all persons having or lawfully or
equitably claiming any estate, right, title or interest in the said
hreditaments and premises or any part thereof from under or in trust for
the Vendor shall and will from time to time and at all times hereafter at
the request and costs of the Purchasers do and execute or cause to be done
and executed all such acts deeds and things whatsoever for further and
more perfectly assuring the said hereditaments and premises and every
part thereof unto and to the use of the Purchasers in manner aforesaid as
shall or may be reasonably required."
26.20 The Plaintiffs have produced registered deeds of appointment of new
trustees of the Trust dated 22nd July 1939 (Exhibit P-16), 29 th June 1942 (Exhibit P-17),
9th July 1951 (Exhibit P-18), 30th October 1972 (Exhibit P-20), 23 rd June 1976 (Exhibit
P-19) and 8th June 2004 (Exhibit P-21). The schedule of each of these registered deeds
reflect the property at C. S. No. 403 as belonging to the Trust. The Schedule 1 register
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of the Trust (Exhibit P-4) maintained by the office of the Charity Commissioner under
the provisions of sections 18 to 21 of the Maharashtra Public Trusts Act, 1950, also
reflects the property at C.S. No. 403 as the property of the Trust. Thus, there is
contemporaneous evidence that the Trustees of the Trust across various years have
always treated this as the property of the Trust, and assigned and vested the same
unto all incoming Trustees.
26.21 The Plaintiffs have tendered Original Receipt No. 2872496 dated 31st
December 2013 in the amount of Rs. 18,966/- for payment of property tax in respect
of building No.13 standing on property bearing C.S.No. 403. PW-1 has referred to this
document in paragraph 11a of his Affidavit in lieu of examination in chief dated 4 th
September 2014. Even in this case, there is no cross examination on this aspect by the
Defendant. I have already drawn an inference that the Defendant does not have any
documents to show that she has even paid the property tax in respect of any of the
Suit Properties. The Plaintiffs evidence of payment of property tax in respect of the
property at C. S. No. 403 has gone unchallenged and unrebutted.
26.22 The Plaintiffs have thus produced title documents and statutory records
in respect of the property at C. S. No. 403 forming part of the Schedule of Properties
at Exhibit A to the High Court Suit.
26.23 Coming to the next of the Suit Properties set out in the schedule
annexed as Exhibit A to the Plaint in the High Court Suit i.e. the land bearing C. S.
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No. 405, the property register card in respect of the same (Exhibit P-1 Colly). The
Plaintiffs have tendered three registered Indentures of Conveyance dated 15 th April
1885 (Exhibit P-11), 15th April 1885 (Exhibit P-10) and 16 th January 1886 (Exhibit P-81),
by which the Trust acquired the property forming part of C. S. No. 405.
26.24 The Plaintiffs have produced registered deeds of appointment of new
trustees of the Trust dated 16th June 1905 (Exhibit P-13), 9th October 1916 (Exhibit P-
14), 18th August 1924 (Exhibit P-15), 22nd July 1939 (Exhibit P-16), 29th June 1942
(Exhibit P-17), 9th July 1951 (Exhibit P-18), 30th October 1972 (Exhibit P-20), 23rd June
1976 (Exhibit P-19) and 8th June 2004 (Exhibit P-21). The schedule of these registered
deeds reflect the property at C. S. No. 405 as belonging to the Trust. The Schedule 1
register of the Trust (Exhibit P-4) maintained by the office of the Charity
Commissioner under the provisions of sections 18 to 21 of the Maharashtra Public
Trusts Act, 1950, also reflects the property at C.S. No. 405 as the property of the
Trust. Thus, there is contemporaneous evidence that the Trustees of the Trust across
various years have always treated this as the property of the Trust, and assigned and
vested the same unto all incoming Trustees.
26.25 The Plaintiffs have tendered Original Receipt No. 5523807 dated 20th June
2012 in the amount of Rs.4,855/- for payment of property tax in respect of building
No.17 standing on property bearing C.S.No.405. PW-1 has referred to this document
in paragraph 11b of his Affidavit in lieu of examination in chief dated 4 th September
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2014. Even in this case, there is no cross examination on this aspect by the Defendant.
I have already drawn an inference that the Defendant does not have any documents to
show that she has even paid the property tax in respect of any of the Suit Properties.
The Plaintiffs evidence of payment of property tax in respect of the property at C. S.
No. 403 has gone unchallenged and unrebutted.
26.26 The Plaintiffs have thus produced title documents and statutory records
in respect of the property at C. S. No. 405 forming part of the Schedule of Properties
at Exhibit A to the High Court Suit.
26.27 As noted above, each of the Suit Properties finds place in the Schedule 1
register of the Trust (Exhibit P-4) maintained by the office of the Charity
Commissioner under the provisions of sections 18 to 21 of the Maharashtra Public
Trusts Act, 1950. Under Section 18 of the Maharashtra Public Trust Act, 1950, a
public trust is required to be registered with the office of the Deputy or Assistant
Charity Commissioner. The Trustee or Trustees must apply for registration under
the prescribed format with the prescribed information being disclosed one of which is
the list of the moveable and immoveable properties of the Trust. Under Section 19 of
the Act, once an application for registration of a Trust is made, the Deputy or
Assistant Charity Commissioner is required to make an inquiry inter alia as to whether
the Trust exists and whether the property described is the property of the Trust.
After completion of the inquiry, the Deputy or Assistant Charity Commissioner is
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required to give his findings thereon under Section 20 of the Act. Under Section 21 of
the Act, the Deputy or Assistant Charity Commissioner is to make entries in the
Register in respect of such Trusts maintained under Section 17 of the Act. In the
present case the Trust has been registered and the suit properties have been
mentioned therein as the properties of the Trust. This would necessarily have to be
after the requisite inquiries under the provisions of the Maharashtra Public Trusts
Act, 1950. The same has not been challenged by the Defendant though she claims
ownership to the Suit Properties.
26.28 Apart from the above, PW-1 has deposed to expenses incurred by the
Trust towards maintenance and repairs of the Suit Properties in paragraph 12 of his
Affidavit dated 4th September 2014 in lieu of examination in chief. He has tendered
various receipts and tax invoices referred to therein as evidence of the same (Exhibits
P 34 to P 49). Further, in paragraph 13 of the same Affidavit, he has deposed to the
persons employed by the Trust for managing the day to day activities of the Suit
Properties and has tendered cash vouchers issued in the names of such employees
(Exhibits P-51 to P-80). He has not been cross examined by the Defendant on this
evidence at all. The Defendant has not produced any evidence to show that she is
maintaining the Suit Properties in any manner. Thus, this evidence too stands
unchallenged and unrebutted by the Defendant. Therefore, it must be accepted that
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the Trust is maintaining the Suit Properties and employing staff for carrying out the
day to day activities for the same.
26.29 There is therefore overwhelming evidence that the title of the Suit
Properties vests in the Trust through its Trustees.
27. Ms. Khobragade for the Defendant has contended that there is no
evidence of the existence of the Trust. In view of the evidence on record and the
discussion and findings mentioned above, this submission must be rejected. There is
once again overwhelming material on record to demonstrate the existence of the
Trust. The Trustees have tendered the Trust Deed, registered titled documents in
favour of the Trust through its Trustees, registered deeds of appointment of new
Trustees of the Trust, registration of the Trust under the Parsi Public Trust
Registration Act, 1936 (Exhibit P-22) and the Maharashtra Public Trusts Act, 1950,
property cards in favour of the Trust through its Trustees and property tax receipts in
favour of the Trust through its Trustees. Hence, I am unable to accept the submission
that the Trust doesn't exist.
27.1 Ms. Khobragade's attempt to state that the Trust has been described as
'Banaji Limji Agiary' in some documents and 'Banaji Limji Fire Temple' in others to
try and oust the existence of the Trust cannot be accepted. It is well known, and
judicial notice can be taken of the fact, that an 'Agiary' is the term by which a Fire
Temple is known. A Fire Temple / Agiary is a place of worship where members of the
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Parsi / Irani Zoroastrian community go to offer prayer. It is a temple which houses the
Holy Fire which is worshipped by members of the Parsi / Irani Zoroastrian
community. The Agiary in this case is known as the Banaji Limji Agiary / Banaji Limji
Fire Temple. Therefore, there is no controversy if the Trust is called by either of
these name in any of the documents on record.
27.2 Coming to Ms. Khobragade's argument that the Plaintiffs are not validly
appointed trustees of the Trust, I am afraid that is not a question that I can decide in
these proceedings. Mr. Tamboly has correctly submitted that under Section 22 of the
Act, the power to decide change reports and to record whether or not a trustee has or
has not been validly appointed vests with the Assistant/Deputy Charity
Commissioner. The change reports recording the appointment of the Plaintiffs as
Trustees of the Trust have been tendered by PW-1 in evidence (Exhibits P-2 and P-3).
Under Section 80 of the Maharashtra Public Trust Act, 1950, no Civil Court has
jurisdiction to decide or deal with any question which is to be decided or dealt with by
the officer appointed under that Act. Therefore, once the relevant change reports are
on record, this Court cannot go behind the same in these proceedings.
28. The Full Bench of this Court in Keki Pestonji v. Khodadad Merwan
Irani (supra) held as follows :
"15....in order that the jurisdiction of the Civil Court to decide or deal with
a question may be barred under S.80, it is necessary both that by or under
the Act the particular question has to be decided or dealt with by an officer
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or authority under the Act and the decision of such officer or authority has
been made final and conclusive by the Act. The word 'or' which originally
appeared in section 80 before the last clause "in respect of which the
decision or order ......... has been made final and conclusive" had
evidently crept in through oversight. It has been deleted by Maharashtra
Act XX of 1971, probably, to make clear what was not sufficiently clear."
"16.......If in order to afford that relief it is necessary for the Court to
decide or deal with a question which by or under the act is to be decided or
dealt with by an officer or authority appointed under the Act, the Civil
Court's jurisdiction in that behalf is ousted. Such questions must be left to
the sole and exclusive decision of the authorities specified in the Act,
whether they are questions of fact or of law and whether they are simple or
complicated. It is true that ouster of jurisdiction of Civil Courts is not to be
readily inferred and the normal rule is the one contained in section 9 of the
Code of Civil Procedure that Civil Courts have jurisdiction to try all suits of
a civil nature. But this rule is subject to the exception contained in that
section itself and the exception is that the cognizance of certain suits by
Civil Courts may be expressly or impliedly barred. Section 80 contains an
express provision of ouster and though its dual conditions must be satisfied
strictly before the decision of a question can be barred from the cognizance
of a normal jurisdiction, it would be wrong to import into that provision any
extraneous or collateral considerations, as for example whether the
question involved is simple or complicated. If law provides that a question
must be decided by a particular authority to the exclusion of the Civil
Courts, that authority cannot throw up its hands in despair and refuse to
decide the question on the ground that it involves consideration of intricate
problems. Nor, indeed, can the Civil Court displace the jurisdiction of that
authority by arrogating to itself the sole power to decide complicated
questions. Once the normal presumption arising under section 9 of the
Civil Procedure Code is overborne, there is no scope for limiting the
jurisdiction of an exclusive forum to simple and straightforward questions.
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What must therefore be considered here is whether the two conditions of
section 80 are satisfied."
29. The Division Bench of this Court in the case of Charu K. Mehta v/s
Lilavati Kirtilal Mehta Medical Trust & Ors. (supra) held as follows :
"38. Section 80 of the Maharashtra Public Trusts Act, 1950 contains an
express bar to the jurisdiction of a Civil Court, but that is subject to the
satisfaction of dual conditions. The existence of those conditions must be
strictly established before an ouster of jurisdiction can result. The correct
test in law to apply is whether the controversy which is sought to be raised
before the civil Court requires an adjudication of a matter or question which
has to be decided or dealt with by an officer or authority under the Act while
exercising his power under the Act and whether such a decision is made final
or conclusive. In determining this issue, the Court has to consider the
substance and not merely the form in which the claim before the civil Court
is made and the underlying object of seeking the real relief. If the question
which is raised in the present case in the Originating Summons, is required
to be determined or dealt with by an authority under the Act whose decision
on such a matter is final and conclusive, the jurisdiction of the Civil Court
would have to be held to have been ousted.
40. Under section 22(3) if the Deputy or Assistant Charity Commissioner is
satisfied after enquiry that a change has occurred in any of the entries
recorded in the register, he is required to record a finding together with the
reasons therefor. An appeal against such a finding is provided to the Charity
Commissioner. The entries in the register have to be amended by the
Deputy or Assistant Charity Commissioner in accordance with the finding
and where an appeal or application has been filed against the finding in
accordance with the final decision therein. The amendments in the entries so
made are final and conclusive, subject to a further amendment on the
occurrence of a change or any cancellation of an entry. The entries which the
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Deputy or Assistant Charity Commissioner makes have, therefore, to be in
accordance with the finding which he arrives at in the course of the enquiry.
Finality attaches to the entries made in the register. The finality is subject to
an appeal against the findings and upon a final decision of the competent
authority on an appeal or application, the entries in the register would have
to be brought in conformity with those findings. The basic underlying
principle is that though the finality which is prescribed is in respect of the
entries made in the register, the entries are only consequential to the findings
of the competent authority. If the submission of the plaintiff were to be
accepted, that would lead to an incongruous situation in which the bar under
section 80 to the entertainment of a question by the Civil Court would be
attracted in respect of the entries, but not as regards the findings on the basis
of which the entries were made. Such a construction cannot be adopted. As
the Supreme Court has noted in the Church of North India, the Maharashtra
Public Trusts Act, 1950 is a special law which confers jurisdiction upon the
Charity Commissioner and other authorities named therein and the
provisions of the Act and the scheme thereof "leave no manner of doubt that
the Act is a complete code in itself". [(2005) 10 SCC 760 at para 82 page
788]
41. The learned Single Judge held that the Deputy or Assistant Charity
Commissioner cannot under the act entertain an application for interpreting
a deed of trust simpliciter and hence an Originating Summons would not be
barred under section 80 of the Maharashtra Public Trusts Act, 1950. With
the greatest respect, this approach misses the essence of the bar under
section 80. Under the provision, the bar is on a civil Court deciding or
dealing with any question which under the Act has to be decided or dealt
with by an officer or authority and whose decision is made final and
conclusive. When the Assistant Charity Commissioner entertains a change
report under section 22, the question which he has to deal with or decide in
the course of the enquiry and in respect of which finality attaches is excluded
from the jurisdiction of the Civil Court under section 80. To hold that the
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Assistant Charity Commissioner cannot entertain an application in the
nature of an Originating Summons for construction of a deed of trust is to
beg the question. The bar under section 80 attaches to a civil Court dealing
with or deciding a question which the Assistant Charity Commissioner is
required to decide or deal with, and with finality. Once the two requirements
of section 80 are fulfilled, the bar is attracted. We are hence of the view that
on the construction of section 80, the learned Single Judge applied an
erroneous test.
50. In every one of the change reports which have been filed before the
Assistant Charity Commissioner, the interpretation of the relevant
provisions of the deed of trust is directly in issue and is a question which is
required to be decided or dealt with by him in pursuance of the enquiry
under section 22(3). The mode of succession to the office of trustees under
the deed of trust and the validity of the appointments made is in issue. These
are questions which have to be dealt with and decided by the Assistant
Charity Commissioner in the course of his enquiry in the change reports.
The entries which the Assistant Charity Commissioner would make in
consequence of his findings on whether or not a change has taken place in
the office of trustees are made final and conclusive. An overall reading of the
plaint would also make it abundantly clear, that what the plaintiff seeks is not
- as suggested by Counsel - a pure or abstract question of interpretation of
the clauses of the Deed of Trust. There are live disputes between the parties
- disputes over the appointment of trustees, the mode of succession and the
validity of meetings - which are the subject matter of change reports, which
are pending. For the purpose of determining jurisdiction, it is evident from a
bare reading of the averments contained in the plaint that the change reports
are pending. The Originating Summons does not raise only questions of
interpretation. Matters which are pending before the Assistant Charity
Commissioner are sought to be brought before this Court in the guise of an
Originating Summons. In this view of the matter, the jurisdiction on an
Originating Summons under Rule 238 would attract the bar under section 80
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of the Maharashtra Public Trust Act, 1950 in respect of the questions which
are required to be decided or dealt with by the Assistant Charity
Commissioner and to which finality attaches."
30. I am bound by the aforesaid decisions of this Court. Once the Assistant
Charity Commissioner has entertained a change report under section 22 of the
Maharashtra Public Trusts Act, 1950, finality attaches to his decision and is excluded
from the jurisdiction of the Civil Court under section 80 of that Act. Hence, I decline
to enter into the disputes raised by the Defendant qua the validity of the appointments
of the Plaintiffs as Trustees of the Trust.
31. I now come to the case set up by the Defendant claiming title to the Suit
Properties. It is the Defendant's case that she is the ultimate beneficiary of the Suit
Properties by virtue of being the sole beneficiary under the Will of Banoo Nariman
Shroff. According to her, the Suit Properties were owned by S. N. Banaji, the father of
Banoo Nariman Shroff. The Defendant is the ultimate beneficiary of all the properties
of Sorabji Nanabhoy Banaji as his estate vested in his son Nanabhoy Sorabji Banaji and
subsequently Nanabhoy Sorabji Banaji's estate vested in his sister Banoo Nariman
Shroff. Since the Defendant is the beneficiary to the estate of Banoo Nariman Shroff,
she is the owner of all of the Suit Properties. This, in a nutshell, is the Defendant's
case on her alleged title to the Suit Properties.
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32. There are number of reasons why the Defendant's case on title cannot
be accepted. The same are set out as follows :
32.1 The Defendant has miserably failed to prove that any of the Suit
Properties belonged to any of Sorabji Nanabhoy Banaji, Nanabhoy Sorabji Banaji or
Banoo Nariman Shroff. There is not a shred of evidence on record to demonstrate that
any of Sorabji Nanabhoy Banaji, Nanabhoy Sorabji Banaji or Banoo Nariman Shroff
owned any of the Suit Properties in their individual capacities.
32.2 On the contrary, each of Sorabji Nanabhoy Banaji, Nanabhoy Sorabji
Banaji and Banoo Nariman Shroff have in one way or another acknowledged that the
Suit Properties or part of them, belong to the Trust. Sorabji Nanabhoy Banaji was a
party to the registered Deeds of Appointment of Trustees dated 18th August 1924
(Exhibit P-15), 22nd July 1939 (Exhibit P-16), 29 th June 1942 (Exhibit P-17). Nanabhoy
Sorabji Banaji was a party to the Deeds of Appointment of Trustees dated 9 th July 1951
(Exhibit P-18), 30th October 1972 (Exhibit P-20), 23rd June 1976 (Exhibit P-19). Each of
these deeds to which Sorabji and Nanabhoy were parties have reflected the Suit
Properties (which had vested / been acquired by the Trust on the dates on which the
respective deeds had been entered into) as the properties of the Trust. That apart, in
paragraph 5 of the copy of the will dated 27th September 1983 of Nanabhoy Sorabji
Banaji tendered by the Defendant (Exhibit D-3) it is stated that the landlords of Banaji
Mansion (standing on C.S. No. 405 i.e. one of the Suit Properties) are the Trust and
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that Nanabhoy is a tenant of one room situated in that building. Further, in paragraph
8 of the will dated 1st December 1983 of Banoo Nariman Shroff tendered by the
Defendant (part of the Probate at Exhibit D-1) it is stated even by Banoo Shroff that
the landlords of Banaji Mansion are the Trust and that she is a tenant of one room
situated in that building. Thus, it is absolutely clear that the persons from whom the
Defendant is claiming title to the Suit Properties have themselves unequivocally
maintained that the same belong to the Trust and they have never set up title in
themselves. This itself is sufficient for the Defendant's case on her alleged title to the
Suit Properties to fail.
32.3 When confronted with the wills of Nanabhoy and Banoo and the
admissions therein that the Trust is the landlord of Banaji Mansion, the Defendant in
answer to questions 10 and 12 of her cross examination contended that what is stated
therein is incorrect. The Defendant has disowned the very documents on the basis of
which she claims title to the Suit Properties. The Defendant cannot have it both ways.
She cannot approbate and reprobate. She cannot seek to rely upon documents but
disown portions thereof which are contrary to the case set up by her.
32.4 Ms. Khobragade's contention that once the Defendant has obtained
Probate from this Court in respect of the will of Banoo Nariman Shroff, and once the
schedule of assets to the same have been amended to include the Suit Properties, the
same vest in the Defendant, cannot be accepted. It is well settled that the Probate
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Court is not concerned with questions of title to the properties mentioned in the will
in question (paragraph 8 of decision of the Supreme Court in the case of Delhi
Development Authority vs Mrs. Vijaya C. Gurshaney 5). Only a competent Civil Court
can properly determine questions of title.
32.5 The documents on which the Defendant relies to contend that the Suit
Properties stand in the name of Sorabji Nanabhoy Banaji viz the property cards and
municipal bills do not help her cause at all. Wherever his name appears on such
documents, it is always in his capacity as a trustee and not in his individual capacity.
That would undoubtedly be the case considering that Sorabji Nanabhoy Banaji was
himself in his lifetime a serving Trustee of the Trust and had always treated the Suit
Properties as the assets of the Trust as found above.
32.6 Apart from the above, I find that the Defendant's actions are contrary to
her own pleaded case that she is the owner of the Suit Properties. The Defendant has
herself accepted the Trust as the landlord of Banaji Mansion standing on C. S. No.
405 on different occasions as pointed out by Mr. Tamboly. The Defendant has paid
rent in respect of her husband's premises situated on the 3 rd floor thereof. PW-1 in
paragraph 10 of his first Affidavit in lieu of examination in chief dated 4 th September
2014 has deposed to the fact of the Defendant tendering rent to the Trust. He was not
cross examined on this aspect, nor has the Defendant led any evidence to rebut this
5 (2003) 7 SCC 301
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position. Hence the same stands established. That apart, it has come out from the
further evidence led by PW-1 as well as the evidence of PW-2, both of which have
been set out in detail above, that the Defendant addressed a letter dated 31 st July 2015
to the Plaintiffs referring to them as landlords of Banaji Mansion (Exhibit P-83).
Thereafter in furtherance of the directions of the Plaintiffs in their letter dated 28 th
October 2015 (Exhibit P-84), the Defendant issued 2 cheques of Rs. 50,000/-(Exhibits
P-85 and 86) each as her contribution to the repair work in respect of the portion of
Banaji Mansion between the 2nd and 3rd floor which had collapsed. The Defendant has
not applied to lead any further evidence to rebut this oral and documentary evidence
led by the Plaintiffs. Therefore, it can be concluded that the Defendant does not
dispute that even during the pendency of these Suits, the Defendant has referred to
the Plaintiffs as the landlords of Banaji Mansion, though it is her pleaded case that she
is the owner of that property.
32.7 The Defendant's conduct speaks volumes and goes a long way in
showing that she does not really consider herself to be the owner of at least one of the
Suit Properties viz. Banaji Mansion situated on C.S. No. 405.
32.8 For all of the aforesaid reasons, I find that the Plaintiffs have established
the Trust's title to the Suit Properties described in the Schedule annexed as Exhibit A
to the Plaint in the High Court Suit, and the Defendant has failed to prove her alleged
title to the same. I accordingly answer Issue No. 1 (in the High Court Suit) in favour of
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the Plaintiffs and Issue No. 6 (in the City Civil Court Suit) against the Defendant
(Bakhtawar Jijina).
33. Issue Nos. 2 and 3 in the High Court Suit and Issue No. 7 of the City
Civil Court Suit :
2. Whether the Plaintiffs prove that Banaji Limji Agiary Trust is in
possession of the properties which are the subject matter of these Suits?
3. Whether the Plaintiffs prove that the Defendant is attempting to
interfere with or disturb their possession in respect of the properties which are the
subject matter of these Suits?
7. Whether the Plaintiff proves that she is entitled to restrain the
Defendants from dealing with or disposing of or creating third party rights in, or
parting with possession of any of properties which are the subject matter of these
Suits?
33.1 Since all of these issues deal with the aspect of possession of the Suit
Properties, they are discussed and decided together as follows.
33.2 It is submitted by Mr. Tamboly on behalf of the Plaintiffs that the Trust
is in long and settled possession of the suit properties. The Trust has been
maintaining the Suit Properties and paying municipal taxes and repair cess in respect
thereof as is evidenced by the receipts in respect of the same (Exhibit P 26 to P 33).
Similarly, payment vouchers to the staff of the Agiary and its outhouses are evidence
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of expenses incurred by the Trust in maintaining the properties (Exhibits P 51 to P
80). The Plaintiffs' witness PW-1 Shri Adi Burjor Banaji has deposed to the Municipal
receipts issued for payment of Municipal Taxes at paragraph 11 of his Affidavit in lieu
of examination-in-chief, and to the management and payment to employees at
paragraph 13 of his Affidavit in lieu of examination-in-chief. He was not cross-
examined on either of these two aspects and these aspects must accordingly be treated
as established and uncontested by the Defendant.
33.3 According to Mr. Tamboly, the Defendant has nowhere claimed to be in
possession of the Suit Properties in any of the pleadings filed by her or in her Affidavit
in lieu of examination in chief. In fact, according to him, the Defendant's own prayers
in the City Civil Court Suit are an admission on her part that the Plaintiffs / the Trust
is in possession of the suit properties.
33.4 Mr. Tamboly contended that once it is admitted by the Defendant that
the Plaintiffs are in possession of the Suit Properties, and if this Court finds in favour
of the Plaintiffs on their claim to title to the Suit Properties, the Defendant should be
restrained from in any manner trying to interfere with the Plaintiffs possession
thereof.
33.5 On the other hand, Ms. Khobragade on behalf of the Defendant
contended that the Plaintiffs case in respect of possession of the Suit Properties
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cannot be accepted. It was argued that payment of municipal taxes cannot prove title
or possession.
33.6 I am in agreement with the submissions made by Mr. Tamboly. I have
already noted my findings above regarding the oral and documentary evidence led by
PW-1 qua payment of municipal taxes, expenses incurred in maintaining the Suit
Properties and payments made to the staff of the Trust, and the fact that this evidence
has gone unchallenged and unrebutted by the Defendant. Moreover it has been
correctly pointed out that it is not even the Defendant's case that she is in possession
of the Suit Properties. It has correctly been pointed out that her prayers in the City
Civil Court Suit amount to an admission that the Trust is in possession of the Suit
Properties. The prayers in the City Civil Court Suit read as follows :
"(a) That this Hon'ble Court be pleased to restrain the Defendants,
their agents, servants and / or person/s claiming by under or through them
by an order of permanent injunction restraining the Defendants from in any
manner inducting any third party and / or dealing with disposing off or
parting with possession of the any gala/ shop/ office/ residential premises
as also creating any tenancy or transferring tenancy or inducting third party
in any capacity whatsoever or altering terms and conditions of evicting
tenant in suit premises viz
b)Building Cadastral Structure Description
No. Survey size
No.
01 13 400 G+1 G= Occupied
1= Occupied
02 14 450 G+4 G= Occupied
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1= Occupied
2= Occupied
3=vacant
4=vacant
03 15 405 Ground Godown
04 16 450 G+4 G= Occupied
1= Occupied
2= Occupied
3=vacant
4=vacant
05 17 400 G+3 G= Occupied
1= Occupied
2= Occupied
3=Occupied by Plaintiff
06 18 450 Ground G Occupied
07 21 405 G+1 G= Occupied
1= Occupied
b) that this Hon'ble Court may be pleased to restrain the Defendants, 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.
[emphasis supplied]
33.7 The Defendant is clearly seeking to restrain the Plaintiffs from inter alia
parting with possession of the Suit Properties. This is a clear admission on her part
that the Plaintiffs are in possession of the Suit Properties. In any event, the Defendant
does not even claim to be in possession of the Suit Properties, nor has she led any
evidence in this regard. Even without the Defendant's admission, the Plaintiffs have
produced sufficient evidence to demonstrate that they are in possession of the Suit
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Properties and are maintaining the same. The Plaintiffs have asserted in paragraph 51
of the Plaint in the High Court Suit that they are in possession of the Suit Properties.
In response to the same, in paragraph 70 of the Defendant's Written Statement in the
High Court Suit, the Defendant has admitted that the Plaintiffs are in possession of
the Suit Properties.
33.8 Therefore, there can be no manner of doubt about the Plaintiffs
possession of the Suit Properties as Trustees of the Trust.
33.9 Once I have returned a finding in favour of the Plaintiffs qua the Trust's
title to the Suit Properties, and once it is an admitted and established position before
me that the Trust is in possession of the Suit Properties, I must answer Issue No. 2 in
the High Court Suit in favour of the Plaintiff.
33.10 In so far as Issue No. 3 is concerned, the Plaintiffs have asserted in
paragraph 43 of the High Court Suit that the Defendant on the strength of the
amended Probate of the will of Banoo Nariman Shroff is attempting to get many of the
immovable properties of the Trust transferred to her name. The Defendant has
responded to paragraph 43 of the High Court Suit in paragraph 63 of her Written
Statement, where she admits that on account of the amendment to the said Probate,
she has made representations to certain authorities. Thus, it is an admitted position
that the Defendant has made attempts in the past to try to get the Suit Properties
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transferred in her name. This would in turn amount to an attempt to interfere with the
Plaintiffs possession of the Suit Properties by trying to first get the same transferred in
her name. Accordingly, Issue No. 3 is answered in favour of the Plaintiffs.
33.11 In so far as Issue No. 7 framed in the City Civil Court Suit is concerned,
once I have found that the Trust is the owner of the Suit Properties, and once the
same are found to be in the Trust's possession, the Issue must be answered in favour
of the Plaintiffs and against the Defendant (Bakhtawar Jijina).
Whether the Defendant proves that the executants of the Deed of Poll
dated 9th June 1876 were not Trustees but mere managers?
34.1 Ms. Khobragade on behalf of the Defendant has contended that a
perusal of the recitals of the Trust Deed show that the Trustees of the Trust do not
own the Suit Properties but are mere managers of the same.
34.2 On the other hand, Mr. Tamboly on behalf of the Plaintiffs contended
that this submission is factually incorrect. The operative portion of the Trust Deed at
Exhibit P-5 itself states that the properties and monies of the Trust vest in the then
trustees. Every conveyance deed under which the remaining immovable properties of
the Trust were purchased, state that they vest in the Trustees of the trust. Every
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subsequent registered Deed of Appointment of Trustees records that the properties of
the Trust vests in the Trust and the Trustees. The records of the Charity
Commissioner including Schedule I which has been produced in this Court confirm
that the Plaintiffs are Trustees of the properties of the Trust and not mere managers
thereof. The Defendant has not led any evidence or produced any material to prove
that the Trustees appointed under the Trust Deed were managers and not Trustees of
the Agiary Property.
34.3 The Trust Deed is a registered instrument and I have already rendered
my findings above qua the correctness of the contents thereof. A perusal of the same
clearly establishes that the executants of the Trust Deed were the custodians of the
properties and assets of the Trust and not mere managers of the same. Accordingly,
Issue No. 4 is answered against the Defendant.
35. Additional issue :
(i) Whether the Defendant proves that the Suit as filed, is not
maintainable for the reasons set out by the Defendant in her Written Statement?
36. This Issue relates to the High Court Suit. In respect of this Issue, Ms.
Khobragade for the Defendant submitted as follows :
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36.1 The resolution of the Trust authorizing the filing of this Suit has not
been produced in evidence. Hence, the Suit as filed is bad in law. That apart there is
no sufficient authority in the Plaintiffs to file the present Suit. In support of this, Ms.
Khobragade relied upon the judgment of the Privy Council in the case of Man Mohan
Das v Janaki Prasad6 to contend that a trustee cannot delegate his power and that all
the Trustees must act jointly. Ms. Khobragade also relied upon the judgment in the
case of Atmaram Ranchodbhai v Ghulamhusein Gulam Mohiyaddin 7 to contend
that in such circumstances the suit would stand defeated. She further contended that
all the Trustees of the Trust have not been made parties to the Suit.
36.2 Ms. Khobragade submitted that Plaintiff No. 3 has belatedly been made
a party to the High Court Suit. Such amendment cannot relate back to the date of
filing of the Suit. The cause of action according to her as per the Plaint, to file the
High Court Suit arose in 1991 and hence the Suit is barred by limitation. In support of
her contention that even the amendment is barred by the law of limitation, she placed
reliance on the judgment of this Court in the case of Dattaram V. Dharwadkar v/s
Ghanshyam G. Bhende8.
6 AIR 1945 PC 234
7 AIR 1973 Guj 113
8 2001 (1) Mah. L.J. 43
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36.3 Ms. Khobragade relied upon the judgment of the Supreme Court in the
case of Vidhyadhar v/s Manikrao9 to contend that a Defendant can raise any
legitimate plea to defeat the suit of a Plaintiff.
36.4 Ms. Khobragade next contended that the Suit would require permission
of the Charity Commissioner under section 51 of the Maharashtra Public Trusts Act,
1951 before being filed, and failure to obtain the same renders the Suit defeated. In
support of this submission, she relied upon the judgment of this Court in the case of
Rajgopal Ragunathdas Somani v Ramachandra Hajarimal Jhavar10.
37. In response, Mr. Tamboly for the Plaintiffs submitted as follows :
37.1 The present suit is one for declaration of title and injunction in favour of
the Plaintiffs as Trustees of the Banaji Limjee Agiary Trust against the Defendant,
who is claiming title to the trust properties as vesting in her and adversely to the
Trust. The requirement for taking the Charity Commissioner's permission as
contemplated under section 50 of the Act does not apply to the present Suit filed by
Trustees. The bar of filing a suit by a third party, who is alien to the Trust, without
taking the permission of the Charity Commissioner, does not apply to Trustees of a
Trust.
9 (1999) 3 SCC 573
10 (1966) 69 Bom. L.R. 472
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37.2 Mr. Tamboly relied upon a decision of this Court in Gurusiddappa
Tipanna Mugeri v. Miraj Education Society, Miraj11 to contend that a Suit of the
present nature does not require permission of the Charity Commissioner under
section 50 of the Maharashtra Public Trusts Act, 1950 prior to institution.
37.3 Mr. Tamboly further relied upon the same decision of this Court in the
case of Rajgopal Ragunathdas Somani vs Ramchandra Hajarimal Jhavar (supra) cited by
Ms. Khobragade to contend that suits by trustees against persons who are strangers to
the trust and who set up title adverse to the trust, are not covered by section 50 of the
Maharashtra Public Trusts Act, 1950.
37.4 Mr. Tamboly further contended that in 1971, section 50 of the
Maharashtra Public Trusts Act, 1950 was amended to read as it does today. A
Division Bench of this Court in the case of Amirchand Tulsiram Gupta vs Vasant
Dhanaji Patil12 held that the amendment to section 50 had no impact to the legal
position that suits by Trustees of a trust are not covered by that section. He submitted
that the Division Bench reiterated the legal position propagated in the aforesaid two
decisions that a suit by Trustees of a trust is maintainable even without permission of
the Charity Commissioner.
11 1961 (63) Bom. LR 312
12 1992 (2) Bom C.R. 22
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37.5 Mr. Tamboly accordingly submitted that the present Suit having been
filed by the Trustees of the Trust to protect the Suit Properties from the adverse
claims of the Defendant, a private third party, the permission of the Charity
Commissioner was not required before instituting the same.
37.6 Mr. Tamboly argued that without prejudice to the above submissions,
assuming that the permission of the Charity Commissioner is required before
instituting a suit in relation to a public trust in cases falling under section 50(iv), the
declaration / injunction sought for must fall under one or more of the categories
mentioned in (a) to (q) of that sub section. In the absence of the same, the permission
of the Charity Commissioner is not required before instituting a Suit. Reliance was
placed by him on the decision of a learned Single Judge of this Court in the case of
Gerald Shirley vs Dipesh Mehta13 in support of this submission. He submitted that the
reliefs claimed in the present suit do not fall under (a) to (q) of section 50(iv) of the
Act. Hence the question of obtaining the Charity Commissioner's permission before
filing the present Suit, did not arise and there was requirement of obtaining such
permission under that provision before filing the High Court Suit.
37.7 In response to the Defendant's submission that the present Suit has
been filed without sufficient authority, it was contended by Mr. Tamboly that all the
original Plaintiffs in their capacity as Trustees have affirmed the Plaint as well as
13 (2014) 4 Bom CR 778
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signed the Vakalatnama in favour of their Advocates on Record. This is enough to
demonstrate that all the Trustees of the Trust have unanimously decided to file the
present Suit. The Defendant has failed to show that a separate resolution is required
to be annexed to the Plaint, either from the documents on record, or as a matter of
law, before the Suit can be stated to be properly filed. The Defendant has not led any
evidence to show how the present suit has been filed allegedly without authority. Once
all the Trustees of the Trust have signed the Plaint at the time of instituting the same,
then the question of them requiring any further authority from themselves does not
arise.
38. The objections raised by the Defendant to the maintainability of the Suit
are two - fold. The first is on the ground that the Plaintiffs lack the necessary
authority to institute the Suit, and the second is on the ground of want of Charity
Commissioner's permission under section 50 of the Maharashtra Public Trusts Act,
1950.
39. Dealing with the first objection, I find that the same is not credible,
simply because the High Court Suit has been affirmed by all the Plaintiffs at the time
of institution of the Suit. The Vakalatnama in favour of the Plaintiffs Advocates on
record has also been signed by all the Plaintiffs at the time of institution of the Suit.
Therefore, this is not a case of one of the Trustees of the Trust acting on behalf of
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some or all of the rest. Hence, once all the original Plaintiffs have signed for
themselves at the time of instituting the Suit, I fail to see what further authority they
require. In this context I must note that I have already declined to entertain the
Defendant's objections to the validity of the Plaintiffs appointments as Trustees of the
Trusts, as the same is not within this Court's jurisdiction as found above.
40. It cannot be said that the Trustees have not acted jointly or that they
have delegated their authority or power as trustees to others.
41. Ms. Khobragade's submission that as per the averments in the Plaint,
the cause of action arose in the year 1991, or that the High Court Suit is barred by
limitation, cannot be accepted. In paragraph 42 of the High Court Suit, the Plaintiffs
have stated that they came to know of the fact that the Defendant had amended the
schedule to the Probate of the will of Banoo Nariman Shroff on 28 th August 2012 when
the Defendant disclosed the same during the course of the City Civil Court Suit.
Moreover, the Defendant filed the City Civil Court Suit in August 2011 where she has
set up title in the Suit Properties unto herself. The High Court Suit is filed by the
original Plaintiffs on 20th February 2014 claiming title to the Suit Property. Therefore,
the Suit has been filed well within a period of three years of the cause of action arising
as per the averments in the High Court Suit. I do not find any averment therein to
support Ms. Khobragade's submission that the same discloses that the cause of action
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arose in 1991. The Suit has been filed well within time. Therefore, I do not see how
the judgment in the case of Dattaram V. Dharwadkar v/s Ghanshyam G. Bhende
(supra) would be applicable in the facts of this case for the proposition canvassed by
Ms. Khobragade.
42. Coming to Ms. Khobragade's contention that the High Court Suit is not
maintainable as the Charity Commissioner's permission has not been taken under
section 50 of the Maharashtra Public Trusts Act, 1950 before instituting the same, I
am not in agreement with the same.
43. Section 50 of the Maharashtra Public Trusts Act, 1950, reads as follows :
"50. Suit by or against or relating to public trusts or trustees or others. -- In
any case,--
(i) where it is alleged that there is a breach of a public trust, negligence,
misapplication or misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to recover the possession of or to follow
a property belonging or alleged to be belonging to a public trust or the proceeds
thereof or for an account of such property or proceeds from a trustee, ex-trustee,
alienee, trespasser or any other person including a person holding adversely to the
public trust but not a tenant or licensee,
(iii) where the direction of the Court is deemed necessary for the administration of
any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or trustee
or trustees or beneficiary thereof,
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the Charity Commissioner after making such enquiry as he thinks necessary, or
two or more persons having an interest in case the suit is under sub-clauses (i) to
(iii), or one or more such persons in case the suit is under sub-clause (iv) having
obtained the consent in writing of the Charity Commissioner as provided in
section 51 may institute a suit whether contentious or not in the Court within the
local limits of whose jurisdiction the whole or part of the subject-matter of the
trust is situate, to obtain a decree for any of the following reliefs:--
(a) an order for the recovery of the possession of such property or proceeds
thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f ) an order directing the trustees or others to pay to the trust the loss caused to
the same by their breach of trust, negligence, misapplication, misconduct or wilful
default;
(g) a declaration as to what proportion of the trust property or of the interest
therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property or its income cypres on the lines, of
section 56 if this relief is claimed along with any other relief mentioned in this
section;
(i) a direction authorising the whole or any part of the trust property to be let, sold,
mortgaged or exchanged or in any manner alienated on such terms and conditions
as the court may deem necessary;
(j) the settlement of a scheme, or variations or alterations in a scheme already
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settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme
for the same;
(l) an order for winding up of any trust and applying the funds for other charitable
purposes;
(m) an order for handing over of one trust to the trustees of some other trust and
deregistering such trust;
(n) an order exonerating the trustees from technical breaches, etc.
(o) an order varying, altering, amending or superseding any instrument of trust;
(p) declaring or denying any right in favour of or against a public trust or trustee or
trustees or beneficiary thereof and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may require which would be a
condition precedent to or consequential to any of the aforesaid reliefs or is
necessary in the interest of the trust:
Provided that no suit claiming any of the reliefs specified in this section shall be
instituted in respect of any public trust, except in conformity with the provisions
thereof:
Provided further that, the Charity Commissioner may instead of instituting a suit
make an application to the Court for a variation or alteration in a scheme already
settled:
Provided also that the provisions of this section and other consequential provisions
shall apply to all public trusts, whether registered or not or exempted from the
provisions of this Act under sub-section (4) of section 1."
44. The Division Bench judgment of this Court in the case of Rajgopal
Ragunathdas Somani vs Ramchandra Hajarimal Jhavar (supra) cited by Ms.
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Khobragade actually goes against the Defendant. The Division Bench of this Court
has held that the provision of section 50 of the Bombay Public Trusts Act is analogous
to section 92 of the Code of Civil Procedure, 1908. Its provisions were never meant to
act as a curb upon the normal powers of trustees in the matter of instituting suits. The
Division Bench held that the Trustee being the legal owner of the trust property can
file a suit to recover trust property without any restriction. Section 50 was intended to
permit persons interested in the trust to sue, in case the trustees failed in their duties,
however with the permission of the Charity Commissioner so as to avoid frivolous
litigation. It was held that suits by trustees against persons who are strangers to the
trust and who set up title adverse to the trust, are not covered by section 50. This
judgment would be applicable to the facts of the present case where the Plaintiffs have
instituted the High Court Suit in their capacity as Trustees of the Trust to protect the
Suit Properties from the Defendant who is a third party claiming an adverse interest
therein.
45. In Gurusiddappa Tipanna Mugeri v. Miraj Education Society, Miraj (supra)
a learned Single Judge of this Court in the context of the un-amended provision of
section 50 of the Bombay Public Trusts Act, 1950 held as follows :
"The underlying object of Section 50 of the Act is to put an embargo on
frivolous litigations and the consent of the Charity Commissioner is
regarded as a sort of safety valve for avoiding acrimonious and frivolous
litigations. Ordinarily, the trustees of a trust can institute a suit against
a third person for the recovery of the trust property............. It is
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significant to note that Section 50 of the Act does not contemplate a suit by
the trustees as such. It contemplates a suit either by the Charity
Commissioner or two or more persons having an interest in the trust
provided that they had obtained consent in writing of the Charity
Commissioner. If Mr. Sukthankar's argument is accepted, it will lead to
startling results viz., that in respect of all charities spread over the vast
territories of the Bombay State, it is open to the Charity Commissioner to
file a suit on behalf of the trusts against trespassers or third persons.
Ordinarily, suits against third persons who claim title in themselves must be
filed by the trustees who are legal owners and as such represent, the
beneficiaries. The Charity Commissioner is a public functionary and cannot
ordinarily represent the trust in disputes between the trust on the one hand
and a private person on the other. It is only in respect of disputes arising out
of administration of and management of the public trusts that the Charity
Commissioner comes into the picture and Section 50 of the Act, provides
that the Charity Commissioner or two or more persons interested in the
trust can file a suit for the various reliefs that have been set out in Sub-
clauses (a) to (h) of Clause (iii) thereof. In my opinion, the relief claimed
in the present suit raises a dispute between the trust, which happens to
be a public trust vis., the plaintiff, on the one side and a private person,
who claims title in himself, on the other. It is not necessary for the
institution of such a suit to obtain the consent of the Charity
Commissioner. The consent of the Charity Commissioner under
Section 50 of the Act is necessary for persons who are not trustees but
who are merely interested in the trust property."
[Emphasis supplied]
46. It is therefore clear, the suits of the present nature are not covered by
Section 50 of the Maharashtra Public Trusts Act, 1950.
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47. For all of the aforesaid reasons, I find that the Defendant has not
demonstrated her case that the High Court Suit is not maintainable, and the additional
Issue is answered against her.
CONCLUSION
48. I am summarizing my findings on the Issues in both these Suits as follows :
Issue No. Issue Answer
Issues in Suit No.236 of 2014 (the
High Court Suit):
1. Whether the Plaintiffs prove that they, as Yes
Trustees of Banaji Limji Agiary Trust,
are the owners of, and are well and
sufficiently entitled, to the immovable
properties which are the subject matter
of these Suits?
2. Whether the Plaintiffs prove that Yes
Banaji Limji Agiary Trust is in
possession of the properties which
are the subject matter of these Suits?
3. Whether the Plaintiffs prove that the Yes
Defendant is attempting to interfere
with or disturb their possession in
respect of the properties which are
the subject matter of these Suits?
4. Whether the Defendant proves that No
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the executants of the Deed of Poll
dated 9th June 1876 were not Trustees
but mere managers?
5. What order? Suit decreed in
terms of prayers
(a) to (d) of High
Court Suit
Additional Whether the Defendant proves that the No
Suit as filed, is not maintainable for the
issue (i) reasons set out by the Defendant in her
Written Statement?
Issues in transferred Bombay City
Civil Court Suit No.2546 of 2011 (the
City Civil Court Suit):
6. Whether the Plaintiff proves that as the No
proving sole executor of, and the
universal legatee under the last Will and
Testament of late Banoo Nariman
Shroff, the Plaintiff is entitled to claim
interest in respect of the properties
which are the subject matters of these
Suits?
7. Whether the Plaintiff proves that she is No
entitled to restrain the Defendants from
dealing with or disposing of or creating
third party rights in, or parting with
possession of any of properties which
are the subject matter of these Suits?
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8. To what reliefs, Plaintiff is entitled? None
9. What order? City Civil Court
Suit dismissed
49. In view of the findings on all the Issues rendered above, the City Civil
Court Suit filed by the Defendant i.e. Bakhtawar Jijina is dismissed with costs, and the
High Court Suit filed by the Plaintiffs is decreed with costs in terms of prayer clauses
(a) to (d) which read thus :
a) that it be declared that the Plaintiffs, as Trustees of the Banaji Limji
Agiary Trust are the owners of and are entitled to the properties described in
the Schedule annexed as Exhibit "A" hereto;
b) that it be declared that the deceased Banoo Nariman Shroff, never had any
right, title or interest in any of the immovable properties described in the
schedule annexed as Exhibit A hereto;
c) that it be declared that the Defendant has no right, title or interest in any of
the immovable properties described in the schedule annexed as Exhibit A
hereto;
d) that this Hon'ble Court be pleased to grant a permanent order and
injunction:
(i) Restraining the Defendant by herself or by her servants and agents
by permanent order and injunction of this Hon'ble Court from in
any manner entering upon the properties described in Exhibit "A"
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hereto or any part thereof or from in any manner interfering with or
disturbing the Plaintiffs' possession of the properties described in
Exhibit "A" hereto or any part hereof;
(ii) Restraining the Defendant by herself or by her servants and agents
from in any manner dealing with, disposing off, transferring,
alienating, encumbering, or creating any third party right in respect
of the properties more particularly described in Exhibit "A" hereto
or any part thereof;
(iii) Restraining the Defendant from holding herself out as the owner of
or has having any right title or interest of any nature whatsoever in
any of the immovable properties described in Exhibit "A" hereto or
any part thereof
50. It is clarified that the injunction granted as per prayer clause (d) (i)
above will not come in the way of the Defendant accessing the individual tenements in
her possession in Banaji Mansion, subject of course to the outcome of the tresspass
action filed by the Plaintiffs against her in respect of the same.
( S.J.KATHAWALLA, J. )
51. The learned Advocates appearing for the parties have made a request
that the Prothonotary be directed to handover to them original documents tendered
by them in Court in these Suits upon them replacing the same by copies authenticated
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by the respective Advocates and also furnishing undertakings to the effect that they
shall produce the originals as and when called upon by the Court to do so. Ordered
accordingly.
( S.J.KATHAWALLA, J. )
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