1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.36 OF 1976 Sitabai K. Kedia & Anr. ...Plaintiffss Vs. C.S. Goenka & Ors. ...Defendants Ms.Sonal i/b. Prasad Das for plaintiffss Mr. M.L. Chaturvedi for defendants 1 and 3 CORAM: SHRI. D.G. KARNIK, J. DATED: 13TH JULY, 2009 P.C. 1. Heard learned Counsel for the plaintiffs and defendants. 2. By order dated 6th July, 2009 the plaintiffs were directed to address the Court on the point how the suit survived in view of the abatement of the suit against defendant Nos. 1 and 3. 3. The case of the plaintiffs in short is that an the Indenture of Trust dated 31st December 1954 the original Defendant No.2 settled 1000 shares of United General Trust Ltd., upon certain trusts as provided therein and appointed himself, the defendant No.1, the plaintiffs No.1, Mr.Hanuman 2 Prasad Poddar and Mr.Ghanshyamdas Jalan as Trustees. Subsequently Hanuman P. Poddar and Jalan ceased to be the Trustees of the Trust and thereafter, the defendant No.3 became the co- Trustee of the Trust, along with the defendant Nos.1 and 3. 4.The plaintiffs have prayed in the suit that the defendant Nos.1,2 and 3 be directed to render accounts and to transfer the shares held in Trust to the beneficiaries. The defendant No.2 died during the pendency of the suit and his heirs were brought on record as defendant Nos. 2(a) to 2(f). Defendant Nos.1 and 3 have also died, but their heirs were not brought on record, and consequently the suit against the defendants 1 and 3 has been abated as recorded by the Court by its order dated 6th July, 2009. 5.Though the defendant No.2 was the original settlor as well as a Trustee his heirs viz. Defendant Nos. 2(a) to 2(f) were never the Trustees of the Trust. Even though the defendant Nos. 2(a) to 2(f) were brought on record, they were never the Trustees, and are not liable, personally or as Trustees. 6.Learned Counsel for the plaintiffs also submits 3 that the defendant Nos. 2(a) to 2(f) were never the Trustees of the Trust, and are not liable as such. 7.Since the defendant Nos.2(a) to 2(f) were never the Trustees of the Trust and there is no allegation that they are intermeddling with the property of the Trust, no relief can be granted against the defendant Nos. 2(a) to 2(f). 8.Some reliefs could have been granted to defendant Nos.1 and 3, but both of whom have died. In the circumstances the suit does not survive in view of the abatement of the suit against defendant Nos.1 and 3. The Suit is accordingly dismissed as a whole. All interim orders, if any, stand vacated. Court Receiver is also discharged in this Suit. 9.Learned Counsel for the plaintiffs submits that the order discharging the Court Receiver as the receiver of the Trust property may be stayed for 4 weeks. At the request of the learned Counsel for the plaintiffs, order of discharge of the Court Receiver is stayed for 4 weeks. (D.G.KARNIK, J.)