: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.521 OF 2005 CIVIL APPLICATION NO.521 OF 2005 CIVIL APPLICATION NO.521 OF 2005 IN FIRST APPEAL NO.314 OF 2003 IN S.C.SUIT NO.5131 OF 1995 Memuna Akhtarhussain Abdullabhai and Ors. ..Applicants Versus Abdullabhai Fiddaalli Trust & Ors. ..Respondents ---- Mr.Santosh Shetty for the applicants. Mr.Rajiv Wagh i/by M/s.Nanu Hatmasjee & Co. for Respondents. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 9.8.2005. PC 1. This is an application filed by the heirs of the appellant-Akhterhussain Abdullabhai who expired in Bombay on 27.4.2004. The prayer in the application is that they being the legal heirs and representatives of the deceased appellant, they should be impleaded in place of the appellant instead of original applicant. The original appellant was the sole plaintiff in the suit. Perusal of the plaint indicates that though in the title of the plaint Mr.Akhterhussain Abdullabhai was not described as a trustee, the 4 main prayers in the plaint were all in respect of trust business. : 2 : Prayer clause-(a) was for declaration that he was still continuing and subsisting as a trustee of the trust and entitled to all the rights and privileges of the trustee. Prayer clause-(b) was for declaration that the resolution dated 19.8.1992 is null, void ab-initio and bad in law and not binding upon him, prayer clause-(c) was for further declaration that the appointment of defendant nos.4 & 5 as trustees was bad in law and prayer clause-(d) was in respect of enquiry of the account of the trust. 2. It is thus seen that all the main prayers pertain to the affairs of the trust and the status of the trustees. 3. On perusal of the Trust Deed it is clear that clause-1(b) defines ‘The Trustees’ means the continuing or surviving Trustee or Trustee for the time being acting under or by virtue of this Trust Deed, and persons appointed from time to time to act as Trustees under this Trust Deed and persons appointed by the Court to perform and execute any of the Trusts of this Trust Deed. Clause 29 of the Trust Deed provided that on a death of a trustee, his post as a trustee would become vacant. Clause 33 then provided for filling of vacancies. Clause 34 provided for adding of trustees. : 3 : 4. Admittedly, the present applicants have not been added or appointed as a trustees. 5. In the case of Sitabai Ramchandra Jeltare & Ors. Sitabai Ramchandra Jeltare & Ors. Sitabai Ramchandra Jeltare & Ors. V/s. Masjid Nurun Mohalla Jingerwadi V/s. Masjid Nurun Mohalla Jingerwadi V/s. Masjid Nurun Mohalla Jingerwadi reported in AIR 1979 BOMBAY 109 the Division Bench of this Court had taken a view that a suit filed by a Mutawalli of a Mosque in his capacity as a trustee can be continued only by another trustee and not by his own legal representatives. The division bench has observed that in such cases order 22 rule 3 does not apply and the case would be one covered by order 22 rule 10. In that case also the suit has been filed by one Awaliyabi in her own name. Not-with-standing the fact that the title indicated that the suit was filed in her own name, the Court found that it was abundantly clear that she was filing a suit as a Manager. In the present case also the prayers are sought on the footing that the plaintiff continued to be trustee of the trust. 6. Learned Advocate for the applicants could not point out to me any clause of the Trust Deed by which legal heirs of the trustee would automatically succeed the trustee. 7. In the circumstances, in my view, the present Civil Application cannot be allowed. The appeal has already abated on the death of the sole appellant. : 4 : Hence, Civil application stands rejected and disposed of accordingly. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)