Buttrose J:

By his will dated 12 April 1948 the testator, Haji Vali Mohamed bin Jooma, directed his trustees to set aside one-third share of his nett estate and out of this one-third share to pay a sum of Rs. 50,000 to two named persons in equal shares and to hold the balance for certain charitable purposes to be known as the Valibhoy Charitable Trust to be performed in or in the neighbourhood of Jetpur in the State of Kathiawar, India.

He directed his trustees to hold the remaining two-thirds share of his nett estate referred to as "residuary estate" until his children who shall be living at the date of his death shall have attained the age of 21 years or died before attaining that age, referred to as the date of distribution, and upon trust at the date of distribution to divide the capital of the residuary estate among the persons who would have been at the date of the testator's death entitled thereto under the Muslim Law applicable to a person of Hanafi sect if the testator had died intestate.

These two trusts will be referred to hereafter as-

(1) the Valibhoy Charitable Trust; and

(2) the residuary estate trust.

The testator appointed four persons to be the executors and trustees of his will, namely, Abdul Gani bin Jina, Hashim bin Ebrahim (the first defendant), Suleiman bin Ali Mohamed and Amina binte Omar (the second defendant). Probate of the will was granted to Abdul Gani bin Jina and the first defendant on 17 November 1950 as two of the executors named in the will leave being reserved to the other executors to come in and prove the same. Abdul Gani bin Jina died on 28 June 1952. On 8 December 1952, double probate of the testator's will was granted to the second defendant the widow of the testator. Suleiman bin Ali Mohamed has not yet come in to apply for a grant to be issued to him. The third defendant the eldest son of the testator appears to have become a trustee some time in 1957 after he attained the age of 21 years and was added as a defendant to the present proceedings by an order of this Court dated 9 December 1957.

From 1953 to 1957 therefore there were only two active trustees, namely, the first and second defendants. It is not inappropriate, I think, to trace, very briefly, the history of this estate with reference to the legal proceedings instituted in connection with it since the testator's death.

On 10 December 1952, two days after double probate was granted to her the second defendant took out an originating summonsNo. 228 of 1952 against the first defendant seeking an order that the first defendant act jointly with her in and about the sale of the movable and immovable property of the testator and that directions be given as to the sale of the testator's estate. The first defendant was desirous of effecting a sale of certain immovable properties to obtain the necessary estate duty and this was opposed by the second defendant. In the result the Court made an order restraining the first defendant from selling the immovable properties in question until further order. A perusal of the affidavits, however, indicates quite clearly that the first and second defendants did not see eye to eye in the administration of the estate and it was specifically alleged that the second defendant was not being kept informed of the affairs of the estate of the testator nor allowed inspection of the accounts. The first defendant indicated he was anxious to retire from the trusts of the will of the testator and there can be no doubt that there was a certain amount of friction existing between them at that time.

Again on 26 March 1956 the second defendant took out another originating summonsNo. 41 of 1956 against the first defendant for certain directions. The Court on 4 May 1956 made an order that a firm of accountants to be agreed upon between the two trustees or otherwise to be nominated by the Registrar be instructed to audit the accounts of the estate of the testator as from the date of his death and to d