Vikramajit Sen, J.

FAO(OS) No. 299/10 & CM Nos. 8006/10, 10840/10, 19782/10, FAO(OS) No. 300/10 & CM No. 10839/10.

1. This litigation commenced in this Court pursuant to the filing of CS(OS) No. 2615/2008 by Shri RAnjan Kumar Singhi and his wife, Smt. Taruna Singhi, who we shall hereinafter refer to as the Plaintiffs. The Prayers in the Plaint, inter alia, are for the execution of a Trust allegedly created by the Will of Shri Narendra Singh Singhi, father/father-in-law of the Plaintiffs, Late husband of Smt. Angoori Singhi, Defendant No. 1, who is the mother/mother-in-law of the other parties. Shri Anjan Singhi, Defendant No. 2 and his wife Smt. Usha Singhi, Defendant No. 3 had filed IA No. 3213/2009 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC for short) praying for the dismissal of the Suit. Since this application has been dismissed, FAO(OS) No. 299/2010 has been preferred by Defendant Nos. 2 and 3. The Plaintiffs filed IA No. 3240/2009 under Section 151 of the CPC seeking an ad interim order against the mother/Defendant No. 1, inter alia, for performance of her obligations as the sole Trustee. By the impugned Order, the learned Single Judge directed that the prayer for appointment of an alternate sole Trustee in place of Defendant No. 1 will be determined at the time of disposing of the other pending application under Order XXXIX Rules 1 and 2 (IA No. 15449/2008) and the Defendants' application under Order XXXIX Rule 4 (IA No. 3214/2009). These directions have been assailed by both the sides; by the Defendants in FAO(OS) No. 300/2010 which we see as a nebulous prayer assailing the Order of the learned Single Judge in deferring the consideration of the prayer in IA No. 3240/2010 for directions to the mother/Defendant No. 1 for administering the alleged Trust and/or appointing any Trustee in her stead. It would have been appropriate for Defendant No. 2 to have specifically prayed that the said IA No. 3240/2009 should have been dismissed. The Plaintiffs have filed FAO(OS) No. 412/2010 assailing the dismissal of their application, IA No. 3240/2009 with the direction that an order should be passed whilst deciding the two pending applications mentioned above, that is, for grant of an ad interim injunction (Plaintiffs' application) and for vacation of ex parte ad interim injunction (Defendants' application).

PLEADINGS OF THE PARTIES

2. The Plaint is for the passing of a mandatory injunction or, in the alternative, for the appointment of a trustee under Sections 49, 59 and 60 of the Indian Trusts Act, 1882. The Suit Schedule Property are mentioned separately - (a) items of jewellery listed in Schedule A to the Plaint to be distributed equally between Plaintiff No. 2 and Defendant No. 3 and (b) Curios and Antiques listed in Schedule B to the Plaint to be distributed equally between Plaintiff No. 1 and Defendant No. 2 in accordance with the Will of the Late patriarch of the family, namely, Late Narendra Singh Singhi. The Plaint further states that on 13.2.1970, Defendant No. 1 applied to the High Court of Calcutta for Probation of the subject Will; Probate was granted on 12.3.1970. Thereafter, it is averred in the Plaint that an oral partition of the jewellery was effected between Plaintiff No. 2 and Defendant No. 3. Despite pleading so, it has then been averred that Defendant No. 2 had not handed over physical possession of the jewellery in Schedule A to either of the daughters-in-law, viz. Plaintiff No. 2 and Defendant No. 3. Some of the jewellery in Schedule A is pleaded to be with Defendant No. 1 at her residence in New Delhi. The remaining items are alleged to be located in the family house in Calcutta. We may clarify that the Will bequeaths 48/2, Gariahat Road, Ballygunge, Calcutta in equal share to the four daughters of Defendant No. 1 (sisters of Plaintiff No. 1 and Defendant No. 2). The family home has been mentioned in the Plaint as 48/3, Gariahat Road, Ballygunge, Calcutta which is in the possession of Def