Soumen Sen, J.

The originating summon has been taken out by the Sm. Pramila Saharia for determination of following questions and matters: -

a) Whether in terms of the Deed of Settlement a female heir and/or member of the family of the Settlor is eligible and competent to become a trustee of the trust.

b) Whether the plaintiff is an heir of the Settlor and/or a member of his family.

c) Whether in terms of the provisions of the Deed of Settlement the plaintiff is qualified to be appointed as trustee of the trust.

d) Whether the Board of Trustees of the trust should consist of minimum three trustees for lawful functioning and administration of the said trust.

e) Whether the defendants would be directed by the Hon’ble Court to appoint the plaintiff as a trustee for proper constitution of the Board of Trustees with a minimum number of three trustees and if so, the defendants be directed to do so.

By and under a Deed of Settlement dated 28th May, 1960, one Ram Gopal Saharia as the Settlor had created a trust whereby he and his son Rameshwar Lal Saharia and his wife Sm. Sarda Debi Saharia along with Chouthmal Saraf were appointed as the initial trustees. The trustees were changed from time to time either on the death of one of the trustees or of circumstances giving right to the existing trustees to fill up the vacancy and/or to appoint a new trustee.

The applicant is the daughter-in-law of Ram Gopal Saharia. She has filed this application by way of originating summons for determination of the aforesaid questions.

Mr. Jayanta Kr. Mitra, learned senior Counsel appearing on behalf of the defendants in the suit raised a preliminary objection with regard to the maintainability of the petition at the instance of the applicant on the ground that the said applicant does not come within the purview of persons who are eligible to take out the originating summons. According to the learned senior Counsel, Chapter XIII Rule 1 specifies the categories of persons who are entitled to take out originating summons.

The said Rule mentions the persons who can apply under the Chapter and includes (i) executors or administrators of a deceased person, or any one of them, and (ii) trustees under any instrument or any of them, and (iii) any person claiming to be interested in the relief sought as creditor, legatee, heir, or legal representative, or as beneficiary under the trusts of any instrument. These categories of persons may take out such originating summons for determination of questions specified in the said Rule. It is submitted that the petitioner is neither a trustee nor a legatee nor she is an heir or an executor or an administrator. Accordingly, she could not have taken out such an application.

On merits, the learned senior Counsel submitted that questions of difficulties and disputed questions of fact are not required to be addressed in an originating summon. Although, in determining the issues raised in the summons no disputed questions of fact are involved but it is submitted that allowing the application would mean interfering with the intention of the Settlor and the Court cannot re-write the deed of trust and/or give any direction contrary to what was intended by the Settlor.

Per contra, Mr. Amitesh Banerjee, learned senior Counsel appearing on behalf of the plaintiff submits that the applicant being a legal heir of one of the sons of Ram Gopal Saharia is very much interested in the proper administration of the trust property and as such legally entitled to maintain the present action.

There is no disputed question of fact as rightly pointed out by Mr. Mitra involved in this proceeding. The questions that arise for determination are two fold: firstly is the locus of the applicant and secondly allowing the application if would result in interfering with the intention of the Settlor. The other impediment is the suit filed by the petitioner before the District Court at Jaipur in which at paragraph 9 of the plaint, the petitioner has a