IMPORTANT POINT
The court established that the appointment of trustees must adhere to the trust deed's provisions, and the trust board has the authority to determine eligibility based on seniority and family branches.

JUDGMENT :

Suvra Ghosh, J.

1. Facts which are not in dispute are enunciated hereunder:-

2. One Mutty Lal Seal created a Trust on 21st February, 1848 for a period of 99 years in respect of his entire property which ceased due to efflux of time in 1947. A new trust was created by the heirs of Mutty Lal Seal on or about 27th January, 1947 which is still in vogue. The trust deed provides that there shall be a total number of ten trustees at a time from the three branches of the descendants of Mutty Lal Seal namely Panna Lal Seal, Kanai Lal Seal and Gobinda Lal Seal out of whom three persons shall be appointed from the branch of Panna Lal Seal, three persons from the branch of Kanai Lal Seal and four persons from the branch of Gobinda Lal Seal. The trustees from the branch of Panna Lal and Kanai Lal Seal shall be appointed by voting and the trustees from the branch of Gobinda Lal Seal shall be appointed by rotation commencing from the eldest son of each family. If it is not possible to appoint the required number of trustees from any particular family branch, the said family branch shall be competent to appoint trustee from any of the three branches. If any trustee from the family branch of Gobinda Lal Seal dies, the post falling vacant shall be filled up within thirty days as per seniority. Only male heirs of the settlors shall be nominated as trustees and the female heirs shall not be eligible for the same. The present trust board is functioning for a period of five years with effect from 21st February, 2022 and one of trustees from the branch of Gobinda Lal Seal and sub-branch of Johur Lal Seal namely Amiya Nath Sain has expired without leaving behind any male heir as a result of which the sub-branch of Johur Lal Seal stands abolished.

3. Learned counsel for the petitioner has submitted that the petitioner is an heir of Gobinda Lal Seal from the sub-branch of Manik Lal Seal. Gobinda Lal’s family branch consists of his eight sons Peary Lal, Brojo Lal, Manik Lal, Bolye Lal, Amrita Lal, Kunjo Lal, Gosto Lal and Johur Lal. Gobinda Lal’s eldest son and his wife expired long ago and were issueless. The previous trust board for the period 2017 to 2022 appointed trustees from the family branch of Gobinda Lal from the sub-branch of Manik Lal, Bolye Lal, Amrita Lal and Kunjo Lal. In the present board for the period 2022 to 2027, trustees from Gobinda Lal’s branch have been selected from the sub-branches of Gosto Lal, Johur Lal, Peary Lal and Brojo Lal out of whom Amiya Nath Sain, who was appointed from the branch of Johur Lal expired on 3rd March, 2023. Since the branches of Peary Lal, Gosto Lal and Brojo Lal are already in the present board, the trustee to be appointed on demise of Amiya Nath Sain ought to be from the family branch of Manik Lal. As such, the petitioner who belongs to the family branch of Manik Lal is the only eligible person to be appointed as trustee in place of Amiya Nath Sain following policy of rotation as per provision of the trust deed. In support of his contention, learned counsel has taken this Court to the genealogical table annexed to the writ petition (annexure B) which demonstrates the branches and sub-branches of Gobinda Lal Seal. The petitioner applied before the trustees on 2nd June, 2023 seeking appointment as a trustee from the branch of Gobinda Lal in place of Amiya Nath Sain. The trustees have neither acted upon the said letter, nor appointed any trustee in place of the deceased.

4. The petitioner has challenged the authority of the manager of the trust to swear the affidavit-in-opposition on behalf of the trust on the ground that according to the trust deed, the manager is appointed by the trustees to carry on the work of the trust pursuant to direction of the trustees and perform other ministerial jobs. Since swearing of an affidavit is not merely a ministerial job, the manager has no authority to swear the same on behalf of the trust.

5. Learned counsel has placed reliance on the authorities in Sri Sushan