1. The two applications under consideration are I.A. No. 3213/2009 filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC) on behalf of defendant nos. 2 and 3 for rejection of the plaint and I.A. No. 3240/2009 filed by the plaintiffs under Section 151 of the CPC for replacing defendant no. 1 as the Trustee of the properties which are subject matter of the present suit (contained in Schedules “A” and “B”) by appointing an appropriate person as Trustee pending the final disposal of the suit.

2. The brief facts leading up to the filing of the two applications are that plaintiff no. 1 and defendant no. 2 are the sons of Late Sh. Narendra Singh Singhi and plaintiff no. 2 and defendant no. 3 are their respective wives. Defendant no. 1 is the mother of plaintiff no. 1 and defendant no. 2 and the wife of Late Sh. Narendra Singh Singhi.

3. Late Sh. Narendra Singh Singhi passed away on 23.12.1967. By way of a Will dated 8.6.1966 Late Sh. Narendra Singh Singhi bequeathed his immoveable property at 48/2 Gariahat Road, Ballygunge, Kolkata to his four daughters, all of whom have not been made party to the present suit as they have no right, title or interest in the properties disputed herein.

4. By the concerned Will dated 8th June, 1966, late Shri Narender Singh Singhi bequeathed to his wife Smt. Angoori Devi, Defendant No. 2 on trust to divide among his two sons and their respective wives.

5. The properties to be divided between the plaintiff no. 1 and defendant no. 2, hereinafter referred to as the “suit properties”, comprise the following :

(a) Jewellery items as listed in Schedule “A” of the plaint, under the names of plaintiff no. 2 and defendant no. 3; and,

(b) Curios and antiques listed in Schedule “B” of the plaint.

6. The terms of the Will with respect to the suit properties are as follows :

“3. I bequeath my jewellery on trust to my wife to divide the same in two parts of equal share as far as possible; One such part to be given to the wife of my son Anjan Kumar and the other to the wife of my son Ranjan Kumar after their respective marriages.

4. I bequeath my entire collection of curios antiques on trust to my wife to distribute the same amongst my sons in equal share at such time and in such manner as she thinks proper.”

7. The Will of Late Sh. Narendra Singh Singhi was probated on 12.3.1970 by the High Court of Calcutta. During the probate proceedings, defendant no. 1 undertook to administer the suit properties, to make a full inventory thereof and to exhibit the same in the High Court of Calcutta within six months from the date of grant of probate as well as to render a true account of the status of the credit etc. of the deceased within one year. For all practical purposes as well as by virtue of creation of specific trust in her name in the Will, defendant no. 1 became the Trustee of the suit properties contained in the Will.

8. As per the plaint, an oral partition took place between the parties as regards the jewellery contained in the suit properties as per which it was divided between plaintiff no. 2 and defendant no. 3, however, the same was not given effect to in so far as defendant no. 1 did not hand over physical possession of the items of jewellery contained in Schedule “A” to the respective parties.

9. It is contended in the plaint that the jewellery items in Schedule “A” to the plaint that are lying at Delhi at the residence of Defendant No. 1, are shown in Schedule “C” to the plaint. The remaining items if jewellery in Schedule “A” are located at the family house at Calcutta where Defendants No. 2 and 3 reside.

10. The case of the plaintiffs is that after the grant of probate in 1970, the Defendant No. 1 has not discharged her obligation as a trustee with respect to distribution of equal share between plaintiff No. 1 and Defendant No. 2 as regards the curios and antiques listed in Schedule “B” and a portion of the suit property was brought by Defendant No. 1