JUDGMENT S.H. KAPADIA, J.:---The above suit is filed by the beneficiary, inter alia, for cancellation of the Agreement dated 18th December 1992 being Exhibit C to the plaint entered into by defendants 1, 2 and 3 (Trustees) on the one hand and defendant No. 5 - US Vitamins (India) Limited being the subsidiary of the holding Company by the name American Products Company Limited (defendant No. 4 herein). The suit is also for an order and direction against defendant No. 5-Company to hand over vacant and peaceful possession of the premises admeasuring 10755 sq. ft. situate at Poonam Chambers, North Wing, 4th floor, Dr. Annie Beasant Road, Worli, Bombay. The suit is also for a declaration that 4600 shares in defendant No. 4 Company subscribed by defendant No. 1 (Trustee) is held by her for the benefit of the Trust and to transfer the said shares in defendant No. 4 Company to the plaintiff alongwith dividends and all other benefits accrued thereon. 2.The claim in the suit is made by the plaintiff as a beneficiary alleging that defendant No. 1 is making use of the Trust properties consisting of the above premises and 4,600 shares for her own personal profit/ gain and thereby defendant No. 1 is guilty of breach of trust. The claim made by the plaintiff beneficiary with regard to the premises is based on allegations of breach of trust against defendant No. 1 on the ground that the said Agreement dated 18th December 1992 has been entered into between the Trustees on the one hand an defendant No. 5 on the other hand in breach of the Indian Trust Act and, therefore, it is prayed that the said Agreement be declared as null and void. The facts giving rise to the above dispute briefly are as follows : 3.Ashok Ganpat Keni (defendant No. 3 herein) as a Settlor created a Trust by way of indenture dated 5th January 1979 (Exhibit A to the plaint). Under the said settlement, plaintiff is a beneficiary of the Trust known as Susheeleena Trust alongwith her sister Mrs. Sheela Rao (not a party to the suit), defendant No. 1 herein (sister of the plaintiff), Dr. Pramila Gandhi i.e. defendant No. 2 herein (mother of the plaintiff, defendant No. 1 and defendant No. 2). In all, there are four beneficiaries under the said trust. Sheela Rao (not a party to the suit), defendant No. 1 herein (sister of the plaintiff), Dr. Pramila Gandhi i.e. defendant No. 2 herein (mother of the plaintiff, defendant No. 1 and defendant No. 2). In all, there are four beneficiaries under the said trust. The settlor, as stated hereinabove, is Ashok Ganpat Keni defendant No. 3 (Trustee). Defendant No. 3 is the nephew of defendant No. 2. The object of the said Trust is to distribute the income earned by the Trust among the above mentioned four beneficiaries for 15 years from 5th January 1979 upto 5th January 1994 and to distribute the corpus thereafter. Initially, in 1979 the corpus consisted only of Rs. 5,000/-. In 1979, the trustees were Arvind Gandhi (husband of defendant No. 2), defendant No. 2 and defendant No. 3. Arvind died on 15th January 1986. At that time, plaintiff was a minor. On the demise of Arvind, defendant No. 1 was inducted as a Trustee. She was the eldest of all. This induction took place on 11th February 1986. Since 1986, defendant No. 1 is a trustee alongwith defendant No. 2 and defendant No. 3. Defendant No. 1 is also a majority share holder in defendant No. 4 Company which is a holding Company of defendant No. 5. Defendant No. 4 holds 98% shares in defendant No. 5 Company. Defendant No. 1, in turn, holds 55.40% of the equity shares of the holding company and consequently, she controls defendant No. 5. According to the plaintiffs, her nominees are on the Board of Directors of defendant No. 5- Company. Defendant No. 1 is also a Director in both the above Companies. 4.On 18th December 1992, an Agreement was entered into between the trustees on the one hand and defendant No. 5 on the other hand whereby premises were let out on monthly rent to defendant No. 5. The monthly rent is payable to the trustees/owners @ Rs. 20/- per sq. ft. The area, as stated hereinabove, is 10755 sq. ft. The Office premises are located at Annie Beasant Road, Worli. The total monthly rent is Rs. 2,15,100/-. It is this Agreement which is the subject matter of challenge because according to the plaintiff, the said Agreement is entered into by the trustees in breach of their duties. 20/- per sq. ft. The area, as stated hereinabove, is 10755 sq. ft. The Office premises are located at Annie Beasant Road, Worli. The total monthly rent is Rs. 2,15,100/-. It is this Agreement which is the subject matter of challenge because according to the plaintiff, the said Agreement is entered into by the trustees in breach of their duties. It is a case of the plaintiffs that the property is alienated for a price which is ridiculously low, particularly in view of the fact that it is located at Worli near Nehru Centre. The said Agreement clearly recites that the Company is in possession of the property since 1st October, 1992. The Agreement is dated 18th December 1992. It further recites that the owners agreed to give to the fifth defendant company, the said premises on monthly tenancy basis with effect from 1st October, 1992. It further recites that the rent shall be revised at the option of the owners, every three years on the basis of the prevailing market rates. It further recites that the defendant No. 5 Company shall, on demand, made by the owners / trustees, deposit with them, as deposit, such sum and for such period and at such rate of interest and on such terms and conditions as may be mutually agreed upon from time to time between the parties and the company shall, on determination of the Lease Agreement, refund the said amount together with interest to the company. 5.At the very outset, I wish to point out that the dispute concerns two assets. One is the immovable property and the other is 4,600 shares, as stated above. 6.The first part of this order will deal with disputes with regard to immovable property at Worli. As stated hereinabove, on the death of Arvind Gandhi on 15th January 1986, defendant No. 1 was inducted as one of the trustees on 11th February 1986. By 1991, her share holding in the holding company had increased from 12.5% to 55.40%. During the period 1986 upto December 1993, plaintiff was in U.S.A. She was studying abroad. Defendant No. 1 is a M.B.A. from a Foreign University. When the plaintiff returned to Bombay in December 1993, she was shocked to learn that premises were alienated vide Agreement dated 18th December 1992 @ Rs. 20/- per sq. ft. During the period 1986 upto December 1993, plaintiff was in U.S.A. She was studying abroad. Defendant No. 1 is a M.B.A. from a Foreign University. When the plaintiff returned to Bombay in December 1993, she was shocked to learn that premises were alienated vide Agreement dated 18th December 1992 @ Rs. 20/- per sq. ft. and she was further shocked to learn that after August 1993, defendant No. 5 Company had refused to pay even the monthly rent on the ground that the company was paying in excess of the standard rent and also on the ground that the company was entitled to receive arrears of interest on the amounts deposited by them with the owners in 1979 as and by way of deposit in the sum of Rs. 6,88,320/-. According to the plaintiff, the said Agreement Exhibit-C to the plaint and the above fact of non payment of rent after August 1993 led her to investigate into the matter and ultimately the above suit came to be filed. 7.By way of defence, defendant No. 1 who is the only contesting trustee out of the three trustees has contended that defendant No. 5 are the protected tenants. It is contended on behalf of defendant No. 5 that the relief sought by the plaintiff are not maintainable in view of the fact that they are protected under the provisions of the Bombay Rent Act. It is contended on behalf of defendant Nos. 1 and 5 that the present suit is not maintainable in view of section 28 of the Bombay Rent Act. In this connection, certain facts are required to be mentioned. 8.An Agreement was arrived at between the then Trustees viz. defendant No. 3, defendant No. 2 and Arvind Gandhi (since deceased) on the one hand and defendant No. 5 on the other hand. This Agreement was arrived at on 21st February 1979. Defendant No. 1 and defendant No. 5 claim that the said Agreement is a Lease Agreement and the said lease was for five years from 13th February 1979. It is a case of defendant No. 1 and 5 that defendant No. 5 is in possession of 10755 sq. ft. in Poonam Chambers under the said Agreement dated 21st February 1979. The said Agreement is annexed as Exhibit- 1 to the Affidavit in reply filed by defendant No. 1. It is for five years. It is a case of defendant No. 1 and 5 that defendant No. 5 is in possession of 10755 sq. ft. in Poonam Chambers under the said Agreement dated 21st February 1979. The said Agreement is annexed as Exhibit- 1 to the Affidavit in reply filed by defendant No. 1. It is for five years. It contains an option which is given to defendant No. 5 Company to claim renewal. It is at a monthly rent of Rs. 43,020/- calculated @ Rs. 4/- per sq. ft. Clause 7 of the said Agreement reads as follows : "7. The company shall pay to the owners, a sum of Rs. 6,88,320/- (Rupees Six lakhs eighty eight thousand three hundred and twenty) equivalent to 16 months' rent, as a permanent deposit to be maintained by the company with the owners during the subsistence of the said lease or any renewal thereof. The owners shall hold the said amount as deposit and shall be bound to pay to the Company interest thereon at the rate of 10% per annum such interest being payable at the end of each completed year. The owners shall refund the said amount to the company on the expiry or sooner determination of the said lease or any renewal thereof together with upto date interest." Clause 9 of the said Agreement dated 21st February 1979 recites that the parties shall execute a proper lease as and when required. The said agreement was renewed on 1st October 1984 (hereinafter referred to as Second Agreement). The Second Agreement was arrived at between the then trustees and defendant No. 5. The Second Agreement recites that the First Agreement was an agreement to give on lease to defendant No. 5, the above premises admeasuring 10755 sq. ft. The Second Agreement is also for five years commencing from 1st October 1984 upto 30th September 1989. It is described as a Supplemental agreement to the main agreement dated 21st February 1979. The Second Agreement fixes the monthly rent at Rs. 86,040/- calculated @ Rs. 8/- per sq. ft. It further recites that Rs. 6,88,320/- deposited by defendant No. 5. Company with the owners shall continue to remain deposited with the owners until expiry of the extended term of the lease on September 30, 1989 and on terms and conditions mentioned under the main agreement dated 21st February 1979. 86,040/- calculated @ Rs. 8/- per sq. ft. It further recites that Rs. 6,88,320/- deposited by defendant No. 5. Company with the owners shall continue to remain deposited with the owners until expiry of the extended term of the lease on September 30, 1989 and on terms and conditions mentioned under the main agreement dated 21st February 1979. This Second Agreement was followed by a Third Agreement dated 19th October 1984 between the then trustees on the one hand and defendant No. 5. Now, this Agreement was arrived at in 1984 i.e. prior to the expiry of the Second Agreement which was to expire on September 30, 1989. The Third Agreement is also of 1984. It is executed on 19th December, after the execution of the Second Agreement. This Third Agreement is not in respect of the premises, but it is in respect of the owners providing amenities and facilities to the fifth defendant company for which defendant No. 5 agreed to pay compensation of an amount of Rs. 43,020/- per month calculated @ Rs. 4/- per sq. ft. The Amenities Agreement was also for five years. It was to commence also from 1st October 1984 and it was upto 30th September 1989. In other words, the Third Agreement was co-terminus with the Second Agreement. Reading the Second and Third Agreements together, it is clear that at 19th October 1984 being the Amenities Agreement under which the trust was receiving an amount of Rs. 43,020/- came to be revoked. The said agreement is not annexed to the affidavit-in-reply. The Minutes of the Board meeting is also not produced before the Court. The result of the Fourth Agreement dated 18th August 1988 revoking the Third Agreement prior to its expiry in 1989 is not explained, but the result is that the loss of Rs. 43,000/- per month came to be suffered by the trust and the total income of the trust under the Second and the Third Agreement which stood at Rs. 1,29,060/- came to be reduced to Rs. 86,040/-. This is one of the circumstance which clearly indicates breach of trust. It is clear loss suffered by the trust. No explanation has been given. 1,29,060/- came to be reduced to Rs. 86,040/-. This is one of the circumstance which clearly indicates breach of trust. It is clear loss suffered by the trust. No explanation has been given. No documents have been produced and in the above circumstances, plaintiff is right, prima facie, on the above facts in alleging that after defendant No. 1 came into picture, the trustees have been acting contrary to their duties and there is a conflict of duty and personal interest for which the present Suit is filed. Now, the consequence of the fourth agreement, as stated above, was that the trust lost an amount of Rs. 43,020/- and the rent came to be reduced from Rs. 1,29,060/- to Rs. 86,040/-. As stated above, the monthly rent of Rs. 86,040/- was fixed @ Rs. 8/- per sq. ft. whereas the Supplemental Agreement for Amenities was fixed at Rs. 4/- per sq. ft. In other words, reading the Third and the Fourth Agreement, prima facie, the trust was entitled to receive rent /compensation @ Rs. 12/- per sq. ft. This aspect is important because when the Fifth Agreement is entered into on 20th March 1990, the monthly rent was fixed at Rs. 13/- per sq. ft. Before me, it has been vehemently argued by Mr. Tulzapurkar and Mr. Subramaniam, learned Counsel appearing on behalf of defendant Nos. 1 and 5 that under each agreement rent/compensation has been increased from time to time. Apart from the fact that the rent/compensation is being reduced from time to time, as indicated by the above facts and particularly in the light of the fact that the property prices of this area are astronomical and that they have been increasing every year, in the present case, the facts indicate that under the Fifth Agreement the increased rate, is illusory. This is because if the Third and Fourth Agreement are read together, the rate receivable by the trust was Rs. 12/- per sq. ft. whereas under the Fifth Agreement, the rate is increased by only Re. 1/- and it is fixed at Rs. 13/- per sq. ft. This fact is important. It shows that the entire paper arrangement has been arrived at in order to give maximum benefit to defendant No. 4 which is the Holding Company in which defendant No. 1 has got 55% share holding. 1/- and it is fixed at Rs. 13/- per sq. ft. This fact is important. It shows that the entire paper arrangement has been arrived at in order to give maximum benefit to defendant No. 4 which is the Holding Company in which defendant No. 1 has got 55% share holding. The above paper arrangement is of the income receivable by the beneficiaries. Now, under the Fifth Agreement, it is important to note that unlike the earlier agreements which provided for a specified period of five years, the tenancy is converted into monthly tenancy. Under the earlier agreements, the lease was renewable every five years. This Clause is given a go-by under the monthly Tenancy Agreement dated 20th March, 1990 (hereinafter referred to as the Fifth Agreement). The consequence is that the agreement containing the clause of renewal is converted into an agreement containing a clause of extension. Under the Tenancy Law, there is a difference between renewal and extension. This is exactly the prejudice which the trust has suffered by reason of the Fifth Agreement inasmuch as the renewal clause is given a go-by. It is interesting to know that under Clause 4, it is expressly mentioned in the Fifth Agreement that the company shall, on demand by the owners, deposit with the owners such deposit and at such rate of interest and on such terms and conditions as may be agreed upon. This Clause 4 clearly indicates that the company agreed to mutually enter into an agreement with regard to deposit as and when the owners would demand. Clause 4 further states on determination of tenancy, now known as monthly tenancy, as the owner shall refund the amount with interest. This aspect is also important because subsequently the company has sought refund of the deposit amount of Rs. 6,88,320/-, with interest under the agreement of 1979 and the company has stopped payment of rent after August 1993 claiming appropriation of interest towards the rent. This amount of Rs. 6,88,320/- was always treated as a deposit required to be refunded as and when the Lease Agreements came to an end. In other words, under the Fifth Agreement, a complete go-by is given to the earlier Lease Agreements which periodically were required to be renewed every five years. Now it is important to bear in mind that the life of the trust is only upto 15th January 1994. In other words, under the Fifth Agreement, a complete go-by is given to the earlier Lease Agreements which periodically were required to be renewed every five years. Now it is important to bear in mind that the life of the trust is only upto 15th January 1994. In anticipation of that date the Lease Agreements which were renewable for five years are now converted into monthly Tenancy Agreement. To my mind, therefore, the Fifth Agreement is also detrimental to the interest of the beneficiaries and it is not in consonance with the objects of the trust which clearly lays down that on the expiry of five years, the trust would come to an end and the corpus would become divisible. Although the Fifth Agreement was a monthly Tenancy Agreement, it hardly provides for revision of rent. There is one more aspect required to be mentioned. The Fifth Agreement was arrived at on 20th March 1990. As stated above, unlike the earlier Agreements, the Fifth Agreement is a monthly Tenancy Agreement and not a Lease Agreement for five years. Surprisingly, if one goes through the Minutes of the Board Meeting of defendant No. 5 Company, held on 19th March 1990, which is at Page 16 and 17 of the compilation, it shows that in the said Board Meeting, a draft Agreement being the renewal of the Lease Agreement for further five years effective from 1st October 1989 to 30th September 1994 was agreed upon and a Resolution was also passed to that effect. The Resolution clearly indicates that the Company i.e. defendant No. 5 would apply for renewal of the existing Lease Agreement and they would pay rent @ Rs. 13/- per sq. ft. for the area admeasuring 10755 sq. ft. amounting to Rs. 1,39,815/- and that the period of the lease would be five years from 1st October 1989 to 30th September 1994. Despite the said Resolution dated 19th March 1990, the Agreement which was entered into on 20th March 1990 clearly gives a go-by to the Agreement of five years and it is converted into an Agreement on monthly tenancy basis. In other words, the said Agreement dated 30th March 1990 is not in consonance of the Resolution of Board of Directors of defendant No. 5- Company. In other words, the said Agreement dated 30th March 1990 is not in consonance of the Resolution of Board of Directors of defendant No. 5- Company. It is interesting to note that no action has been taken by the trustees even when the rent has been reduced from Rs. 1,29,060/- to Rs. 86,040/-. It is interesting to note that the trustees did not take any action for securing the best possible rent while entering into the agreement dated 20th March 1990, particularly when they were already receiving rent/compensation @ Rs. 12/- per sq. ft. under the Fourth Agreement and, therefore, under the Fifth Agreement, they have received rent @ Rs. 13/- per sq. ft., the rent was not the best rent looking to the interest of the beneficiaries and lastly they have entered into agreement with the Company contrary to the Resolution passed in the Board of Directors' Meeting of defendant No. 5 Company on 19th March, 1990. 9.In the above circumstances, the Suit Agreement dated 19th December 1992 (hereinafter referred to as "The Sixth Agreement") has now become the subject matter of challenge. As stated above, the Sixth Agreement commences not from 1979, but it commences from 1st October 1992. It does not refer to any of the earlier Agreements. The Sixth Agreement is also a monthly Tenancy Agreement. It does not contemplate lease for a period of five years. It is entered into just on the eve of the expiry of the Trust in January 1994. The rent charged is fixed @ Rs. 20/- per sq. ft. and it provides only a limited caveat that the rent shall be revised at the option of the owners every three years on the basis of the prevailing market rate. Now, this clause is also important because after October 1992, there is no fresh revision although the owners trustees were entitled to receive rent on the basis of the prevailing market rate. This Clause is also very important because the term and condition of the monthly Tenancy Agreement clearly indicates that the company has agreed to pay rent on the basis of the prevailing market rates. This Clause is also very important because the term and condition of the monthly Tenancy Agreement clearly indicates that the company has agreed to pay rent on the basis of the prevailing market rates. No explanation has been given why the present agreement commences from 1st October 1992, no explanation has been given why the alleged Tenancy Agreement is a monthly Tenancy Agreement from 1st October 1982, no explanation has been given as to why previous agreements have not been referred to, no explanation has been given why the earlier agreements were respectively for five years so that the corpus could be made divisible on the expiry of the Trust Deed whereas in the present case by creation of the monthly tenancy, the right of distribution in favour of the beneficiary under the Trust Deed is adversely affected. The object of entering into monthly Tenancy Agreement is, therefore, crystal clear that it was not possible for the beneficiaries to claim their right of distribution on the expiry of the Trust Deed on 15th January 1994 in view of the fact that the alleged tenant would claim protection under the provision of the Bombay Rent Act. The circumstances are very strong. The documents on record clearly indicate that the entire object of the paper work in the form of various agreements is to deprive the beneficiaries of the income and also ultimately encumber their right to claim distribution on the date of the expiry of the trust on 15th January 1994. This aspect can be also prima facie, further supported by the conduct of defendant No. 5. After August 1993, defendant No. 5 stopped paying rent in respect of the premises. The plaintiff came to India in December 1993. She was shocked to learn that defendant No. 5 has refused to pay rent to the Trust and that the owners/trustees have not taken any steps whatsoever even to recover their legitimate dues under the existing Agreement. Accordingly, the Attorneys for the plaintiff called upon defendant No. 5 to pay rent from August 1993. The Board Meetings of defendant No. 5- Company clearly indicates that in 1993, defendant No. 5- Company decided that they will not pay rent as the rent which is chargeable under the Suit Agreement was far in excess of the standard rent. Accordingly, the Attorneys for the plaintiff called upon defendant No. 5 to pay rent from August 1993. The Board Meetings of defendant No. 5- Company clearly indicates that in 1993, defendant No. 5- Company decided that they will not pay rent as the rent which is chargeable under the Suit Agreement was far in excess of the standard rent. The Board Meeting further indicates that defendant No. 5 decided not to pay rent, as according to defendant No. 5, under Clause 7 of the Agreement of 1979, they had deposited an amount of Rs. 6,88,320/- which was repayable with interest. The Board of Directors meeting clearly indicates that interest was payable under Clause 7 every year and since the owners did not pay interest under Clause 7 on Rs. 6,88,320/-, a claim of appropriation of the so called arrears of interest was made and on that footing, defendant No. 5, company decided to stop payment of rent to the trust. This is clearly also borne out by the letter in reply given by the defendant No. 5 company pursuant to the demand raised by the plaintiff to pay rent to the Trust after August 1993. It is in these circumstances that the above suit came to be filed. At the ad-interim stage, defendant No. 5 made a statement that they would pay and continue to pay the rent under the Suit Agreement @ Rs. 20/- per sq. ft. and it is pursuant to the ad-interim orders and the statement contained therein that the rent was being paid to the Trust. 10.Taking into account the above facts and circumstances of the case, in respect of the above immovable property, the arguments may be noted. Mr. Bharucha, learned Counsel appearing on behalf of the plaintiff submitted that the facts enumerated herein above clearly shows that the defendant No. 5 who claims to be a tenant is controlled by defendant No. 4 which holds 98% shares of defendant No. 5. He further states that defendant No. 1 holds 55% in defendant No. 4. Mr. Bharucha, learned Counsel appearing on behalf of the plaintiff submitted that the facts enumerated herein above clearly shows that the defendant No. 5 who claims to be a tenant is controlled by defendant No. 4 which holds 98% shares of defendant No. 5. He further states that defendant No. 1 holds 55% in defendant No. 4. He further submits that under the above circumstances, the Corporate Veil is required to be lifted because under the above paper arrangement, the entire benefit goes to first defendant who has acted, after becoming a Trustee and Director of the above companies in breach of her obligations and duties as a trustee and as a result, the beneficiaries have suffered loss of income by way of rent/compensation and they have also lost a right to claim proper distribution of the Estate on the expiry of the Trust on 15th January 1994. Mr. Bharucha contended that in the present case, it is not necessary to refer to the Agreements prior to the Suit Agreement dated 18th December 1992 because the Suit Agreement expressly refers to a recital which indicates that the Agreement commenced from 1st October 1992 and that the Company was in possession from 1st October 1992. He relied upon large number of authorities to state that in view of the terms and conditions mentioned in the Suit Agreement and the recital, it is not open to the defendants to rely upon the earlier Agreements prior to the Suit Agreement dated 18th December 1992. In particular, Mr. Bharucha relied upon the recital which states that the company has continued to be in possession of the property since 1st October 1992 pending negotiations regarding the rent. Mr. Bharucha further contended that after defendant No. 1 came into picture the Trust suffered cancellation of the Amenities Agreement and thereby they suffer a loss in the payment of rent which came to be reduced instead of getting increased from Rs. 1,29,060/- to Rs. 86,040/- . Mr. Mr. Bharucha further contended that after defendant No. 1 came into picture the Trust suffered cancellation of the Amenities Agreement and thereby they suffer a loss in the payment of rent which came to be reduced instead of getting increased from Rs. 1,29,060/- to Rs. 86,040/- . Mr. Bharucha further contended that it was always open to the Trustees to take appropriate action, but since defendant No. 1 had a controlling interest in defendant No. 4, which was the holding Company and since her nominees were on the Board of Directors of defendant No. 5 company, no steps were taken as trustees either to challenge cancellation of agreement dated 19th October 1984 being the Amenities Agreement nor was any action taken to attain the best rent. Mr. Bharucha contended that under the Indian Trusts Act, it is a duty of the trustee to obtain the best possible rent taking into account interest of the beneficiaries. He further contended that the Suit Agreement gives a complete go-by to the earlier Agreements. He contended that with regard to surrender of lease, it is not a pre-condition to the said surrender that the possession should be handed back to the owner. He contended that in view of the specific recital and terms and conditions of the Suit Agreement, the Suit Agreement should be read as a fresh and independant agreement. He contended that the Suit Agreement provides for rent to be calculated @ Rs. 20/- per sq. ft. He contended that in the Worli area where the office is situated in Poonam Chambers, near Nehru Centre, the rate of Rs. 20/- per sq. ft. is illusory. He further contended that the trustees never invited Property Valuation Report while entering into the agreement. He further contended that there is no merit in the defence of defendant No. 5- Company that, but for the Suit Agreement, they were to go to the Small Causes Court and claim fixation of the standard rent and in order not to allow the company to approach the Small Causes Court, the trustees decided to enter into the Suit Agreement. Mr. Mr. Bharucha contended that it was a duty of the trustees to obtain best rent, particularly when fresh independent Agreement was entered into in 1992 and merely on the threat given by defendant No. 5 that they would approach the Small Causes Court, the trustees could not have succumbed to the coercive tactics adopted by defendant No. 5- Company. Mr. Bharucha contends that this defence has no merit. He contended that in the present matter, the entire Suit Agreement was arrived at only to benefit defendant No. 1 at the cost of the beneficiaries. Mr. Bharucha heavily relied upon the various Clauses in the Trust Deed and contended that the trustees were fully aware that the period of Trust was only upto 15th January 1994. He contended that the divisibility and distribution got affected, particularly in view of the fact that a monthly Tenancy Agreement was entered into by which monthly tenancy is created in favour of the fifth defendant. Mr. Bharucha contended that all these questions will be decided at the final hearing . However, he contends that in the meantime, Court Receiver should be appointed, particularly when it is crystal clear on the basis of the averments and documents on record that the entire arrangement has been arrived at only to give pecuniary benefit to defendant No. 1 who is having 55% share holding in the Holding Company which is not in dispute and who controls defendant No. 5. Mr. Bharucha contends that it is well settled that the trustee cannot put himself in possession and claim benefit of the protection of the Bombay Rent Act. He, therefore, contends that in the present matter, the Court is required to lift the Corporate Veil and in the present case, he has contended that it is not open to defendant No. 5 to claim benefit of the Rent Act. He further contended that defendant No. 5, before entering into the Agreement of 1992 could have gone to the Small Causes Court as now claimed. But, they entered into the agreement of 1992 in which further it is clearly mentioned that rents would be revised every three years on the basis of the prevailing market rate. In the present circumstances, the prevailing market rate has not been taken into account and in the circumstances, the rent remains undervalued and the best rent has not been fixed. Mr. In the present circumstances, the prevailing market rate has not been taken into account and in the circumstances, the rent remains undervalued and the best rent has not been fixed. Mr. Bharucha further contends that under the Indian Trust Act, trustees are duty bound to obtain best rent looking to the interest of the beneficiaries. Mr. Bharucha contended that looking to the location of the Office premises and area of the Office premises and other factors, it is clear that in 1992 in the Worli area, rent fixed at Rs. 20/- is illusory. It is no rent at all. In the circumstances, he contends that the Suit Agreement ought to be cancelled and in the circumstances, he contends that the trust should be permitted to take back possession. He further submits that this order can only be passed at the final hearing of the matter. However, he contends that today, in view of the above facts, the Court Receiver should be appointed and he should be directed to obtain a Valuation Report and on that basis, defendant No. 5 should be directed to pay royalty and security so that the trust is not prejudiced. Mr. Bharucha further contends that it is true that the plaintiff was studying in U.S.A. and she used to come to Bombay occasionally. Mr. Bharucha says that on the above facts, he cannot deny that the plaintiff was not aware that defendant No. 5 is in possession. Mr. Bharucha, however, contends that in the present case, if the Court is satisfied that defendant No. 1 managed her affairs in such a way that there is a conflict of personal interest on the one hand with her duty as a trustee, then the question as to whether plaintiff was aware of the fact of defendant No. 5 being in possession will not disentitle the plaintiff from claiming the relief. Mr. Bharucha further contends that when Arvind Gandhi died, plaintiff was a minor. He further contends that it is true that when the rent was distributed, certain portion of the rent came to the share of the plaintiff. He further contends that plaintiff had given Power of Attorney to defendant No. 1 (her elder sister). He contended that in the present case, the basic test is whether there was transparency with regard to the above transactions. Mr. He further contends that plaintiff had given Power of Attorney to defendant No. 1 (her elder sister). He contended that in the present case, the basic test is whether there was transparency with regard to the above transactions. Mr. Bharucha contended that the plaintiff always trusted her elder sister, but when she came to know that after defendant No. 1 came into picture as a trustee and as Director of the Companies, the Trust has not even received rent/ compensation from August 1993, she made enquiries when she was shocked to learn that the monthly Tenancy Agreement has been created with effect from 1st October 1992 and it is on that basis that she made enquiries. Mr. Bharucha further contended that even the Suit Agreement does not refer to the previous agreements and in the circumstances, this is not a case where all the facts were fully known to the plaintiff so as to constitute acquiescence or concurrence with regard to the actions of defendant No. 1. He contended that in the present case, defendant No. 2 who is also a trustee, has not filed any reply. He contended that all the trustees have not taken any action and in the above circumstances, as a beneficiary, the plaintiff is required to take action. Mr. Bharucha contends that, prima facie, if he is able to satisfy that the trustees are guilty of breach of the trust, then only on the ground of acquiescence alleged by defendant No. 1 and 5, the plaintiff cannot be non suited. He further contended that concurrence of acquiescence in such matters pre supposes that the beneficiary was fully aware of all the facts and had induced the defendants (Trustees) to enter into the above arrangement. That is not the case here and in the circumstances, he contented that pending the hearing and final disposal of the suit, the court Receiver ought to be appointed in respect of the said immovable property. Mr. Bharucha further contends that in the present matter, there is no merit in the allegation made by the defendants that it is her other sister Mrs. Sheela Rao who is instigating the plaintiff because she has been a party to the above arrangements and since the plaintiff was the only person who was not a party to the above decisions/arrangement, the plaintiff has been investigated to file the above suit. Mr. Sheela Rao who is instigating the plaintiff because she has been a party to the above arrangements and since the plaintiff was the only person who was not a party to the above decisions/arrangement, the plaintiff has been investigated to file the above suit. Mr. Bharucha further contends that in the present case, the Court is required to see primarily whether the trustees have committed breach of duty/obligations and whether the arrangements is in consonance with the objects of the Trust and if the Court is satisfied that the entire arrangement is to defeat the beneficiary's rights to receive income and distribution, then certainly they should be the paramount consideration and the motives attributed to the plaintiff should not be given overemphasis. 11.Mr. Bharucha next contended that in the present case it is important to note that Rights Issue were offered in 1991 and the trustees announced their rights and as a result, the benefit went to defendant No. 1 and the result was that her share holding in the defendant No. 4 stood increased from 12.5% to above 55%. Mr. Bharucha, therefore, contended that the Court is required to declare that the said 4,600 shares also constitute the Trust property and in the circumstances, he seeks appointment of Court Receiver with regard to the said shares. 12.Mr. Tulzapurkar, learned Counsel appearing on behalf of the first defendant, at the very outset, submitted that in the present case, the suit is not maintainable. He invited my attention to the prayer clause in the suit and pointed out that in the suit plaintiff has sought cancellation of Suit Agreement dated 18th December 1992 and plaintiff has claimed possession of the immovable property from defendant No. 5. He contended that this prayer could not be granted even at the final hearing of the matter. He contended that defendant No. 5 was a sitting tenant and duly protected by the provisions of the Bombay Rent Act and in the above circumstances, he contended that the prayer sought by the plaintiff could not be granted even at the final hearing and if such a prayer could not be granted at the final hearing, interim orders cannot be granted by this Court at this stage. He contended that even in the present matter, tenancy was created in February 1979 when defendant No. 1 was a minor. He contended that even in the present matter, tenancy was created in February 1979 when defendant No. 1 was a minor. He contended that tenancy was created by the settlor/defendant No. 3 and other Trustees in favour of defendant No. 5. He contended that till today in the present suit, there is no charge to the earlier agreements between 1979 and the Suit Agreement of 1992. He contended that the rights of defendant No. 5 are fully protected by the provisions of the Bombay Rent Act. He contended that defendant No. 2 who is one of the present trustee is a party to all these agreements between 1979 and 1992. He contended that defendant No. 2 today is supporting the plaintiff. He contended that the plaintiff is, therefore, not entitled to seek cancellation of the Suit Agreement of 1992 without challenging the Agreements between 1979 upto 1992 and in the circumstances this Court cannot grant Decree of possession and seek eviction of the statutory tenant, without instituting a suit under section 28 of the Rent Act. He further contended that if one goes through the above Agreements, the First Agreement was arrived at on 21st February 1979 between the then trustees and defendant No. 5 where the rent was calculated as payable @ Rs. 4/- per sq. ft. He contended that if one goes through the Trust Deed the initial amount which was settled on trust by defendant No. 3 was only Rs. 5,000/-. He contended that an amount of Rs. 10 lakhs was borrowed from Saraswat Co-operative Bank and at that time, an amount of Rs. 6,88,320/- came to be deposited by defendant No. 5. In the above circumstances, the rent of Rs. 4/- per sq. ft. was reasonable. He further contended that under the Trust Deed, the trustees were entitled to alienate the property and pursuant to that power, the agreement dated 21st February 1979 came to be entered into. He contended that this agreement is not the subject matter of challenge and, therefore, possession cannot be recovered merely on the ground that agreement of 1992 ought to be cancelled. He further contended that under the subsequent agreement which I have already referred to, the rate for calculating the rent was increased from Rs. 4/- per sq. ft. to Rs. 8/- per sq. ft. and thereafter from Rs. 8./- per sq. ft. it has been increased to Rs. He further contended that under the subsequent agreement which I have already referred to, the rate for calculating the rent was increased from Rs. 4/- per sq. ft. to Rs. 8/- per sq. ft. and thereafter from Rs. 8./- per sq. ft. it has been increased to Rs. 20/- per sq. ft. In the circumstances, he contended that the best rent was made available to the trust and, therefore, no grievance could be made by the beneficiary. He further contended that under the above facts and circumstances of the case, the doctrine of tracing the property at the instance of the beneficiary cannot be applied. He contended that once defendant No. 5 is protected under the Rent Act, then the said alienation is protected by the statute and in the circumstances, it is not open to trace the property into the hands of a statutory tenant viz. defendant No. 5. He further contended that in the present case, the only remedy available to the plaintiff was to sue the trustees, both former and the present, for damages (personal remedy). He further contended that the tenancy created by the trustees took place when defendant No. 1 was not a trustee. He further contended that but for the various agreements, defendant No. 5 would have approached the Small Causes Court and would have applied for fixation of the standard rent in which event the Trust would not have received the increased rent as stated hereinabove. He further contended that in the above circumstances, section 51 of the Indian Trusts Act has no application. Mr. Tulzapurkar further contended that the tenant company is defendant No. 5 and in the above circumstances, the trust property could not be traced into the hands of defendant No. 5 who are protected by the Rent Act. He further contended that this is not a matter where the property is alienated without the power being vested with the trustees. He further contended that on the facts of the case, the trust could not have purchased the above immovable property, but for the deposit amount of Rs. 6,88,320/- by defendant No. 5 and but for defendant No. 5 agreeing to pay rent, Saraswat Co-operative Bank would not have given a loan amount of Rs. 10 lakhs pursuant to which the property came to be purchased. 6,88,320/- by defendant No. 5 and but for defendant No. 5 agreeing to pay rent, Saraswat Co-operative Bank would not have given a loan amount of Rs. 10 lakhs pursuant to which the property came to be purchased. He further contended that suit is for recovery of possession and in the circumstances, only the Small Causes Court had the jurisdiction to entertain, try and dispose of the matter, particularly as defendant No. 5 is a tenant in respect of the said property since 1979. He further contended that in he present case, if the trustees have failed to carry out their obligations, then the beneficiary is entitled to sue them for damages, but in the facts and circumstances of the case, they are not entitled to seek possession from defendant No. 5. He further contended that defendant No. 5, who were running their business elsewhere, gave up their possession and they came to Poonam Chambers in 1979 pursuant to the Agreement of 1979 and in the circumstances, the trust cannot trace the property into the hands of a protected tenant. He further contended that the Trust Deed was for a fixed period of 15 years and it expired on 15th January 1994 when the Estate became distributable and in the circumstances, it was open to the plaintiff to institute a separate suit under section 28 of the Bombay Rent Act as the owner /landlord of the premises and it is not open to the plaintiff to come to this Court and sue to cancel the agreements and recover possession as a beneficiary under the said trust Deed. He further contended that in the present matter, the plaintiff who sought to recover the mesne profits @ Rs. 2,15,100/- which is the rent currently paid by defendant No. 5 to the trust, calculated @ Rs. 20/- per sq. ft. and in the circumstances, it is not open to the plaintiff to claim any higher amount in the form of royalty. He further contended that in the present case, during the period 1979 upto December 1992, the plaintiff regularly received distribution of rent income which is shown in her Tax Returns. 20/- per sq. ft. and in the circumstances, it is not open to the plaintiff to claim any higher amount in the form of royalty. He further contended that in the present case, during the period 1979 upto December 1992, the plaintiff regularly received distribution of rent income which is shown in her Tax Returns. It is further contended that although the returns have been signed by defendant No. 1 as a Constituted Attorney on behalf of the plaintiff, the plaintiff was fully aware of the fact that rent was being paid by defendant No. 5 and that defendant No. 5 was in possession of the suit premises. He invited my attention to the acknowledgments filed with the Income Tax Authorities and the wealth Tax Authorities which clearly indicate that the plaintiff was fully aware of the fact that the premises were let out to defendant No. 5 in 1979 and she was the recipient of the rent income. In the above circumstances, it is contended by defendant No. 1 that the plaintiff had acquiesced and she is not entitled to claim any relief. It is further contended that in the present matter, there is a series of litigation between the parties, particularly between the members of Gandhi family on the one hand and defendant No. 1 and her husband on the other hand and since defendant Nos. 2, 3 and Mrs. Sheela Rao (sister) are parties to all the decisions taken with regard to fixation of rent of defendant No. 5, the plaintiff has been instigated and she has been put up by the members of Gandhi family because they know very well that plaintiff is the only member of the Gandhi family who is not a privy to the decisions taken either as trustees or as directors in defendant No. 4 and 5 Companies. He further submitted that it is highly improbable that the plaintiff came to know for the first time about the Agreement of December 1992 only in 1993. It is further contended that in the plaint, the plaintiff has not disclosed the source of her knowledge regarding the Agreement of 1992 and non payment of rent by defendant No. 5 after August 1993 and in the circumstances, she has come to Court with unclean hands and, therefore, in equity jurisdiction this Court should not grant any relief to her. It is also contended that plaintiff has taken the benefit of the rent income during the above period and it is not open on her part to now allege breach on the part of the trustees in carrying out their obligations under the Trust Deed, particularly when the rent income has been distributed and she has received the said amount, as indicated by her Income Tax and Wealth Tax Returns. Mr. Tulzapurkar has placed heavy reliance on the doctrine of acquiescence which, according to him, squarely applies to the facts of the present case. He has heavily relied upon the judgment reported in the case of (Fletcher v. Collins)1, 1905 Vol. II, Chancery Division, page 24. Mr. Tulzapurkar further submitted that under section 63 of the Indian Trusts Act, if it is not possible to trace the property, then relief cannot be granted and in the circumstances, section 63 has no application to the facts of the case. He further submitted that the trustees have never acted contrary to the object of the trust. He further submitted that in the present case, at the highest, the trustees are only liable for damages for alleged breach of trust, but it is not open to the plaintiff or the Trust to trace the property into the hands of defendant No. 5 who is a statutory tenant. In the circumstances, he submits that section 63 of the Indian Trusts Act has no application. Mr. Tulzapurkar further contended that in the present matter section 88 of the Trusts Act is also not applicable because section 88 only refers to money claim. It is a case of the plaintiff that in the present matter, defendant No. 1 has entered into the Suit Agreement of 1992 to gain pecuniary advantage. If that be the case, then even if defendant No. 1 ultimately looses in the matter, at the highest, she will have to pay the difference between the market value and the rent actually received by the trust, but she cannot claim any relief against the property because the alienation is protected by the Rent Act. He accordingly, submitted that the judgment of the Madras High Court reported in (Mariam Bivi v. N.R. Trust)2, A.I.R. 1978, Madras, page 244 has no application because in that case, the suit was filed by a successor - trustee challenging the alienation effected, being his predecessor. He accordingly, submitted that the judgment of the Madras High Court reported in (Mariam Bivi v. N.R. Trust)2, A.I.R. 1978, Madras, page 244 has no application because in that case, the suit was filed by a successor - trustee challenging the alienation effected, being his predecessor. It was not a case filed by the beneficiary. It was not a case of a plaintiff getting a benefit during the period 1979 upto 1992. On the contrary, in that matter, the Madras High Court observed that the successor - trustees had challenged the alienation effected by the former trustee on the ground that the alienation was beneficial to the trust and since such alienation was not contemplated by the trustee, the trustee had no power to alienate the property. He contended that in the present matter, the trustees are expressly given the power to alienate and in the circumstances, the judgement of the Madras High Court cited by Shri Bharucha, has no application. Mr. Tulzapurkar further contended that in the present case, it is true that the trustees have never invited Valuation Report with regard to the market rate prevailing, but defendant No. 5 has called for the Valuation Report which clearly indicates that the rent fixed @ Rs. 20/- per sq. ft. was according to the market rate and in any event, it was in excess of the standard rent and in the circumstances, the trustees realised that it would be better to enter into the agreement otherwise defendant No. 5 were likely to approach the Small Causes Court in which event, the rent fetched would be only the standard rent because the first letting has taken place in 1979 and on account of that apprehension, the trustees were entitled to enter into the above Agreement. 13.With regard to the plaintiff's claim for declaration that 4600 shares belong to the Trust, Mr. Tulzapurkar contended that in the present matter, the Affidavit filed by defendant No. 1 clearly indicates that defendant No. 1 was holding shares gifted to her by her grandmother even prior to 1988 and even at that time, the break up clearly indicates that defendant No. 1 was holding shares in a lager majority than the other members. Tulzapurkar contended that in the present matter, the Affidavit filed by defendant No. 1 clearly indicates that defendant No. 1 was holding shares gifted to her by her grandmother even prior to 1988 and even at that time, the break up clearly indicates that defendant No. 1 was holding shares in a lager majority than the other members. He invited my attention to page 23 of the Affidavit-in-Reply filed by defendant No. 1 which clearly indicates that prior to 25th October 1975, defendant No. 1 was not a share holder of defendant No. 4 Company, but on 20th October 1975, the grandmother of defendant No. 1 transferred 225 shares held by her in defendant No. 4 and in favour of defendant No. 1. On 26th June 1978, grandparents of defendant No. 1 transferred 959 shares of defendant No. 4 in favour of defendant No. 1. Therefore, defendant No. 1 came to hold 1184 shares in the Holding Company even prior to 1981. In 1981, the Holding Company even issued bonus shares in the ratio of 1:1 and accordingly defendant No. 1 was allotted 1184 shares in the Holding Company which totalled her share holding in the Holding Company to 2368 shares. Mr. Tulzapurkar further pointed out that on 24th September 1988, a meeting of the Board of Directors of the Holding Company was held. The Chair-Person was defendant No. 2. At the said meeting, defendant No. 2 suggested that the Holding Company should come out with a Rights Issue of 20000 shares of Rs. 10/- each and accordingly, a Resolution was unanimously passed. On 23rd March 1988, an extra-ordinary General Meeting of the Holding Company was held at which, once again, defendant No. 2 acted as a Chairperson. At the said extra-ordinary General Meeting, defendant No. 2 explained the proposal for the Rights Issue of 20000 shares and the same was unanimously approved and confirmed by the Members of defendant No. 4 being the Holding Company. Pursuant to the said Rights Issue, the plaintiff, Sheela Rao (sister), defendant No. 1 and defendant No. 2 applied for respective quota of the Rights Share offer. Applications for the Rights Share were also made by the plaintiff, Sheela Rao, defendant No. 2 in their individual capacity with full knowledge and information that number of shares would be allotted to each of them. Applications for the Rights Share were also made by the plaintiff, Sheela Rao, defendant No. 2 in their individual capacity with full knowledge and information that number of shares would be allotted to each of them. Accordingly, pursuant to the Rights Issue in 1988, disproportionate share holding amongst the Gandhi family members took place, but this was a historical fact. It was not a creation of defendant No. 1 and/or her husband. Mr. Tulzapurkar further contended that there was another rights issue made sometime in 1990, 1991 by the Holding Company. However, the trustees did not apply for the shares and in the circumstances, the holding of defendant No. 1 increased to 55% but it was not a case of renunciation of shares by the trustees in favour of defendant No. 1 and in the circumstances, if the trustees did not apply, defendant No. 1 who was already a share holder had a right to apply and accordingly, she was allotted shares which increased her holding to 55% in the Holding Company. In the above circumstances, Mr. Tulzapurkar contended that the matter in hand concerns the trustees not applying for shares and it does not concern renunciation of shares, the renunciation took place in favour of a person. The right of renunciation is given to a share holder, but she renounces it for some other person whereas in a case of non application for shares, it was open to the trustees to apply, but they did not apply for shares and in the circumstances, defendant No. 1 who was already a share holder bought the shares and the share holding increased to 55% from 12.5%. In the circumstances, if the trustees have not applied for shares, the Trust has lost its chance of acquiring the shares and in which event, there is no property in existence in favour of the Trust as the shares were never issued in favour of the Trust. The shares went into the general category and, therefore, the question of tracing does not arise and in such a case, at the highest the matter would amount to mismanagement of the Trust funds. He further contended that defendant No. 1 bought her shares in her own writing as a share holder. She has not brought the shares under the Trust funds. He further contended that defendant No. 1 bought her shares in her own writing as a share holder. She has not brought the shares under the Trust funds. Even her share holding right from the inception was more than the other members of the family and she received the shares as rights shares and accordingly, her holding increased to 55% in the Holding Company and in the circumstances, it is not open to the plaintiff to proceed against 4600 shares or claim a declaration that 4600 shares belong to the Trust. Mr. Tulzapurkar contended that the doctrine of tracing will apply in cases of renunciation, but it will not apply in a case where trustees do not apply pursuant to the offer made by the Company and buy the shares and if they do not buy the shares, the shares do not belong to the Trust. In the circumstances, he contended that the Court Receiver cannot be appointed for 4600 shares as defendant No. 1 has not got any shares as a result of renunciation by the trustees and the shares were bought from her own individual funds and in her own individual name and pursuant to the right which she had as share holder. Mr. Tulzapurkar, therefore, contended that the plaintiff cannot proceed against the property which is not traceable. He relies upon the judgment reported in (Alfred William Domingo v. L.C. D'souza)3, A.I.R. 1928, Allahabad, page 481 at page 487. 14.Mr. Tulzapurkar next contended that plaintiff is engaged in Forum shopping. He contends that this very plaintiff had filed a company petition before the Company Law Board seeking to challenge Rights issue of 1988 and 1991 and the allotments made thereunder. He contended that in that petition, plaintiff prayed that defendant No. 1 had acquired shares wrongfully and that the said allotment ought to be cancelled. That petition was filed under sections 397 and 398 of the Companies Act. It is contended that the plaintiff herein was petitioner No. 3 in the said Company petition. He further contended that no reliefs were granted by the company Law Board and in the circumstances, the present suit has been filed by the plaintiff. However, Mr. Tulzapurkar conceded that the company petition was filed in the capacity as a share holder whereas in the present case, the suit is executed in the capacity as a beneficiary. He further contended that no reliefs were granted by the company Law Board and in the circumstances, the present suit has been filed by the plaintiff. However, Mr. Tulzapurkar conceded that the company petition was filed in the capacity as a share holder whereas in the present case, the suit is executed in the capacity as a beneficiary. He, however, contended that the proceedings of the Company Law Board are relied upon by the first defendant to show that the plaintiff has come to this Court with unclean hands and by a backdoor method she is trying to obtain the same reliefs which she did not obtain from the Company Law Board with regard to 4600 shares. 15. Mr. Subramaniam, learned Counsel for defendant Nos. 4 and 5 contended that in the present matter, this Court is asked to exercise equity jurisdiction and in the present matter, the plaintiff has come to Court with unclean hands. Mr. Subramaniam contended that if one looks to para 3 and 4 of the plaint, plaintiff has suppressed material particulars as to who told the plaintiff and how she came to learn only in 1993 about the existence of Agreement of 1992. He further contended that although the plaintiff is fully aware of all Agreements of 1979 upto 1992 as she was in receipt of rent throughout the period, she has not chosen to disclose the same to the Court and she has instituted the suit as if for the first time she came to know in 1993 that an agreement was arrived at in December 1992. Mr. Subramaniam contended that though the Attorneys for defendants had called upon the plaintiff to give particulars regarding her knowledge as indicated and alleged in para 4 of the plaint, the particulars have not been supplied as to who informed her about the Agreement of 1992 and about non payment of rent from August 1993. Mr. Subramaniam further contended that the plaintiff has resorted to falsehood and she alleges ignorance regarding events and documents executed in favour of defendant No. 5 during the period 1979 upto 1992. In this connection, it may be mentioned at the very outset that in the subsequent Affidavit-in-Rejoinder, the plaintiff has clearly indicated that she came to know about the Agreement of 1992 and the stoppage in the payment of rent from August 1993 by defendant No. 5 from her sister Mrs. In this connection, it may be mentioned at the very outset that in the subsequent Affidavit-in-Rejoinder, the plaintiff has clearly indicated that she came to know about the Agreement of 1992 and the stoppage in the payment of rent from August 1993 by defendant No. 5 from her sister Mrs. Sheela Rao who is not a party - defendant in the present suit. Mr. Subramaniam further contended that in the present matter, the plaintiff has not challenged the various agreements commencing from 1979 upto December 1992 and unless it is shown by the plaintiff that the first letting of the property in favour of defendant No. 5 in 1979 was in breach of the trust, it is not open to the plaintiff only to challenge the last document of 1992 and seek its cancellation and possession on that footing, particularly when defendant No. 5 is a statutory tenant from 1979 and in the circumstances, he contended that the Court Receiver cannot be appointed on the ground that the agreement is entered into in breach of the trust. Mr. Subramaniam further invited my attention to various meetings of the Board of Directors of defendant No. 4 Company and submitted that all along the owners who are also on the Board of directors were fully aware about the agreements and the plaintiff is put up only because she is a member of the Gandhi family who is not a privy to the above agreement or the decisions, as indicted by the various Resolutions passed by defendant No. 4 and 5 Companies. He further contended that in the present matter, the Court cannot loose sight of the fact that the asset of the trust on 5th January 1979 consisted only of Rs. 5,000/-. He further contended that premises were acquired in January 1979 only because defendant No. 5 advanced deposit amount of Rs. 6,88,320/- and on that footing and on the footing that defendant No. 5 will pay rent, the Saraswat Co-operative Bank advanced a loan of Rs. 10 lakhs. 5,000/-. He further contended that premises were acquired in January 1979 only because defendant No. 5 advanced deposit amount of Rs. 6,88,320/- and on that footing and on the footing that defendant No. 5 will pay rent, the Saraswat Co-operative Bank advanced a loan of Rs. 10 lakhs. In the above circumstances, he contended that the transaction in 1979 which was entered into by the then trustees was a bona fide decision and if that decision was bona fide and if defendant No. 5 were the statutory tenants, then in the present case, the tracing cannot be done with regard to the property into the hands of defendant No. 5 who are holding as statutory tenants duly protected by the Bombay Rent Act. He further contended that the agreements were renewed from time to time and on each renewal, the rent was increased and in the circumstances, he contended that the trustees and the beneficiaries both have benefitted from the said agreements. He further contended that but for the said agreements, defendant No. 5 was entitled to invoke section 28 of the Rent Act and also apply for fixation of the standard rent which would have fetched lesser rent and in the circumstances, the trustees were fully aware of the fact that eviction of defendant No. 5 was impossible and it is for this reason that they entered into agreements from time to time and it is for this reason that they accepted the rent fixed @ Rs. 20/- per sq. ft. even in 1992 because the trustees were aware that if the matter was to go for fixation of standard rent, the trust would not have received the rent @ 20/- per sq. ft. He further contended that on expiry of 15 years, the trust stood expired and in the circumstances, the Estate became divisible and on 15th January 1994, plaintiff herself became a landlord and if that be the case, one fails to understand why the suit in the Small Causes Court has not been instituted by the plaintiff. ft. He further contended that on expiry of 15 years, the trust stood expired and in the circumstances, the Estate became divisible and on 15th January 1994, plaintiff herself became a landlord and if that be the case, one fails to understand why the suit in the Small Causes Court has not been instituted by the plaintiff. On the other hand, he contends that in order to avoid provisions of the Rent Act, the plaintiff herein has instituted a suit on the Original Side of the High Court knowing fully well that if she was to file a suit in the Small Causes Court, she would not succeed in getting possession from defendant No. 5 who claims to be a protected tenant. Mr. Subramaniam further contended that in the present matter, since rights have vested in favour of defendant No. 5, the Court Receiver cannot be appointed. He further contended that on attaining majority, it was open to the plaintiff to have sought a recession of the Contract. However, she has filed a suit as a beneficiary for cancellation of the contract and she has sought possession knowing fully well that defendant No. 5 is a protected tenant. He further contended that in the present case, the property is acquired and total amount of Rs. 17.50 lakhs out of which Rs. 6,88,320/- were given as deposit and on the basis of the said deposit plus the loan amount of Rs. 10 lakhs, the trustees were able to purchase the immovable property in Poonam Chambers and in the above circumstances, the said transaction of 1979 is a bona fide transaction. Mr. Subramaniam also placed heavy reliance on the judgment of the Supreme Court in the case of (Anthony Leo v. Nandlal Krishnan)4, reported in A.I.R. 1997, S.C. pg. 173 and has contended that where Rent Act is applicable, the inter se rights and obligations of the landlord and tenant are regulated and controlled by the Rent Act. In areas where special Law govern the incidences of tenancy, the law relating to lessor and lessee if envisaged by the Transfer of Property Act will regulate and decide the inter se rights of the landlord and tenant. In areas where special Law govern the incidences of tenancy, the law relating to lessor and lessee if envisaged by the Transfer of Property Act will regulate and decide the inter se rights of the landlord and tenant. He further contended that the Receiver will be bound by the incidence of tenancy flowing from the Rent Act which regulates and decides the rights of the landlord and tenant and, therefore, no order for eviction of the tenant can be passed by the Court at the instance of the Court Receiver, without taking recourse to appropriate proceedings for eviction under the Rent Act. He further contended that a tenant of a property in custodia legis cannot be deprived of statutory rights of tenants vis-a-vis the landlord. In the circumstances, he contended that the Receiver appointed to the tenanted premises if he complains about any unlawful activity by the tenant, then the tenant cannot be evicted by a summary procedure but the Receiver should be directed to institute suits in the Small Causes Court to expose the tenant. Mr. Subramaniam accordingly contended that in the present matter, by an indirect method, the plaintiff has adopted an ingenious method of claiming eviction of defendant No. 5, without resorting to the provisions of the Bombay Rent Act. 16. Before considering the rival contentions, the following position in law as regards Private Trusts are concerned, it may be mentioned. The Indian Trusts Act, 1888 embodies in a concise form, the entire structure of Trusts. It deals with certain obligations in the matter of Trusts. A Trust is created when the settlor/author of the Trust indicates by the words or acts, his intention to create a Trust, the property of the Trust, the beneficiary and the specific subject matter of the Trust being the trust. Where a person intends to buy the property to be held by a trust for the beneficiaries, he must hold it for their benefit. A Trust is an outcome of an obligation annexed to the property. It can be invoked against those who are aware of the fact that they have obtained ownership or tenancy rights of the trustees. Under section 63 of the Trust Act, the beneficiary can sue the trustee for breach. A Trust is an outcome of an obligation annexed to the property. It can be invoked against those who are aware of the fact that they have obtained ownership or tenancy rights of the trustees. Under section 63 of the Trust Act, the beneficiary can sue the trustee for breach. However, under section 8 of the Indian Trusts Act, if the subject matter of the Trust is an immovable property which is ultimately transferable to the beneficiary then a proprietory relation comes into picture which can arise independent of any agreement. The liability of a trustee for breach does not depend upon the benefit received by him. It depends upon his act or omission because the main principle in a suit based on breach of duty is not to punish the trustee, but to recover the loss suffered by the trustee. Tracing the Trust property into the hands of the trustee, is a proprietory remedy given to the beneficiaries unlike the personal remedy given to the beneficiaries to sue the trustees for breach. If the Trust Estate is wrongfully alienated by the trustee, the beneficiaries are entitled to follow the Estate that has been substituted in place of the Trust Estate. An abuse of the Trust can confer no rights on the party abusing it, nor does it confer any right on those who claim privity with the trustee in default. [See Levin on Trust, page 650 (16th Edition)]. If a Trust property is wrongfully alienated and the alienee takes the property with full notice of the Trust, then the alienee is bound to the same extent as his transferor. Alienation by a trustee to a Limited Company of which he is a controlling share holder amounts to alienation in favour of the trustee. [See Levin on Trust (page 695, 16th Edition)]. If the alienation is by way of a lease, then the Court must construe a lease of an Estate belonging to the Trust as a sale of a partial interest in it. Therefore, the trustees cannot demise that partial interest in their own favour. [See Levin on Trust, page 697, (16th Edition)]. Breaches of trust are of different types. A breach of trust may be deliberate or inadvertent. It may consist of an actual misappropriation or misapplication of a Trust property. It may consist of a failure to carry out the positive obligation of trustees. [See Levin on Trust, page 697, (16th Edition)]. Breaches of trust are of different types. A breach of trust may be deliberate or inadvertent. It may consist of an actual misappropriation or misapplication of a Trust property. It may consist of a failure to carry out the positive obligation of trustees. It may lie in the injury to the interest of the beneficiaries. A trustee who acts with the intention of benefiting persons who are not the objects of the Trust is not less dishonest because he does not benefit himself. This is because he is guilty of wilful default in conferring benefit on persons who are not the objects of the Trust. See (Armitage v. Nurse)5, 1997(2) All England Reports, page 705, Court of Appeals. See (1995(4) All England Reports, Pg. 769)6. 17. Now, applying the tests referred to hereinabove, to the facts of the present case, it is clear that if one looks at the totality of various agreements between 1979 upto 1992, then the following situation emerges. After defendant No. 1 secured 55% share holding in the Holding Company which controls 98% of defendant No. 5 Company, the income from the property has reduced and steps have been taken in such a manner that ultimate distribution of the corpus is prejudicially affected. As stated hereinabove, on 1st October 1984, an agreement was arrived at between the former trustees on the one hand and defendant No. 5 Company which is referred to as the Second Agreement. This Second Agreement contemplated the rate of rent @ Rs. 8/ per sq. ft. without any deduction. It is true that even in the First Agreement as well as in the Second Agreement, the rate is rediculously low, but it is contended on behalf of the first defendant and defendant No. 5 that they had advanced a loan of Rs. 6,88,320/- and since they agreed to pay rent and on that standing the Saraswat Bank had advanced a loan of Rs. 10 lakhs. However, it may be mentioned, as stated hereinabove, that this Second Agreement contemplated that lease was to be renewed after 30th September 1989. As held by the Supreme Court in the case of (P.C. Dalui another v. Banerjee and another)7, reported in 1989 (Supplementary), Vol. I, S.C.C. pg. 10 lakhs. However, it may be mentioned, as stated hereinabove, that this Second Agreement contemplated that lease was to be renewed after 30th September 1989. As held by the Supreme Court in the case of (P.C. Dalui another v. Banerjee and another)7, reported in 1989 (Supplementary), Vol. I, S.C.C. pg. 487, there is a difference between extension and renewal of lease and the distinction between extension and renewal is that in the case of renewal, a new lease is required while in the case of extension, the same lease continues in force (para 14). As stated hereinabove, under the Second Agreement, the rent payable by defendant No. 5 was calculated @ Rs. 8/- and the total amount payable per month by defendant No. 5 for a area admeasuring more than 10000 sq. ft. came to Rs. 1,29,060/-. This Second Agreement was followed by the Amenities Agreement being the Third Agreement which provided for compensation to be paid to the trust amounting to Rs. 43,020/- and the total amount, therefore, payable under the two Agreements was Rs. 1,29,060/- per month. It is interesting to note that the Third Agreement was arrived at on 19th October 1984, but after 1986 and after defendant No. 1 came on the scene, the Amenities Agreement stood revoked. No reasons have been given. No Minutes of the Board Meeting are shown to the Court and as stated above, this revocation has taken place by reason of the agreement dated 18th August 1988, the consequence of which is that the rent stood reduced to Rs. 86,040/- with effect from 1988 i.e. even prior to the expiry of the Second Agreement in 1989. In other words, the Trust started receiving rent @ only Rs. 8/- per sq. ft. whereas under the Second and Third Agreement they were receiving from 1984 upto 18th August 1988, the total income calculated @ Rs. 12/- per sq. ft. This aspect is also important because when the Fifth Agreement was arrived at in 1990, the rate fixed in respect of the rent was only Rs. 13/- per sq. ft. Learned Counsels for defendant Nos. 1 and 5 have strongly urged that periodically, the rates have been increased from time to time to show their bona fides. On the other hand, there is no increase if the above three agreements are looked into. This Fifth Agreement is of 20th March 1990. 13/- per sq. ft. Learned Counsels for defendant Nos. 1 and 5 have strongly urged that periodically, the rates have been increased from time to time to show their bona fides. On the other hand, there is no increase if the above three agreements are looked into. This Fifth Agreement is of 20th March 1990. It completely obliterates clause for renewal whereas the Board of Directors meeting indicate that what was proposed was a renewal of the lease for further five years from 1989. By this agreement, a monthly tenancy is created instead of renewal for five years as contemplated by the Board Meeting of defendant No. 5 Company. No explanation has been given by defendant No. 1 and 5 with regard to the said inconsistency. Moreover, the Fifth Agreement of 20th March 1990 is not for five years as in the past, but it is converted into a monthly tenancy. This fact is important, particularly in view of the fact that the trustees were fully aware of the fact that in 1994, the Trust would come to an end and the corpus was required to be distributed. With the revocation of the Amenities Agreement, the rate fixed at Rs. 13/- per sq. ft. indicates freezing of the rate of rent, if one keeps in mind that under the Agreement of 1984 read with the Amenities Agreement of 1984, the rent payable was Rs. 1,29,060/- which was to be calculated @ Rs. 12/- per sq. ft. (Rs. 8/- towards rent and Rs. 4/ towards compensation per sq. ft.). No action has been taken by the trustees including defendant No. 1 as to why the periodical Lease Agreements have been converted into monthly tenancy. The Trust never took action against the Company i.e. defendant No. 5 although the subsequent agreements are to the detriment of the interest of the beneficiaries. The object was only to benefit defendant No. 4 and 5 - Companies. As stated above, where the trustees act to favour objects of the Trust other than those specified in the Trust, then they are guilty of breach and if the trustees fail to take appropriate action against the Companies, they have failed in their duty as trustees. Under the Agreement of 20th March, 1990, there is no reference similar to Clause 7 of the Main Agreement of 1979. Under the Agreement of 20th March, 1990, there is no reference similar to Clause 7 of the Main Agreement of 1979. On the contrary, there is no clause stipulating that the company would be entitled to charge interest on the deposit amount of Rs. 6,88,320/-. On the other hand, under Clause 4 of the said Agreement of 1990, the Company and the trustee/owners agreed that in future the Company may be asked to deposit such sum of money and at such rate as mutually agreed upon. Now, in view of Clause 4 of the alleged Tenancy Agreement of 1990, one fails to understand as to on what basis the companies have refused to pay rent after August 1993 on the ground that the owners have not given them credit in respect of the interest which was payable under Clause 7 of the Main Agreement while depositing Rs. 6,88,320/-. Further, despite the said agreement being the alleged Tenancy Agreement executed on 20th March 1990, the Suit Agreement came into existence on 18th December 1992, which is signed by defendant No. 1 and 2 on the one hand and the husband of defendant No. 1 on behalf of defendant No. 5 Company. Despite all the agreements, one fails to understand why there is no reference to any of the earlier agreements in the Suit Agreement. It is very clear that the Suit Agreement was treated by the Company and the owners as an Independent Agreement. In fact, it recites that the Company is in possession from 1st October 1992 whereas now it is contended on behalf of the Company that they are protected tenants as they are in possession under the lease from 1979. Under the Suit Agreement of 1992, rent was payable @ Rs. 20/- per sq. ft. which, as stated above, is a rate which is illusory looking to the locality in which the building is located. The trustees have never even invited Valuation Report before fixing the rate of rent. This is also once again a monthly Tenancy Agreement. It is not a lease for a specified period. However, it stipulates that in future after three years 1992, the rent will be fixed at the market rate. It is interesting to note that from August 1993 even rent fixed @ Rs. 20/- per sq. ft. This is also once again a monthly Tenancy Agreement. It is not a lease for a specified period. However, it stipulates that in future after three years 1992, the rent will be fixed at the market rate. It is interesting to note that from August 1993 even rent fixed @ Rs. 20/- per sq. ft. under the Suit Agreement has not been paid till the plaintiff had to move the Court and obtain an ad-interim Order. The reason given by defendant No. 5 for not paying the rent was that they were paying in excess of the standard rent and secondly that defendant No. 5 Company has not received interest, as agreed upon under the First Agreement of 1979 which, as stated hereinabove subsequently has not been reflected as a Clause in the alleged Tenancy Agreement of 1990. This aspect is important from another angle also. On one hand, defendant No. 5 claims for the first time that they were the protected tenants under the Bombay Rent Act as they were in possession from 1979 and on the other hand, they have refused to pay rent after August 1993 on the ground that the interest amount on Rs. 6,88,320/- has accumulated and, therefore, they were not entitled to pay rent, but they were entitled to adjust the interest amount accrued on the deposit amount towards payment of rent. Clause 7 of the Main Agreement clearly indicates that the entire amount was refundable on the determination of the lease. The various aspects which I have discussed hereinabove, show that Agreements entered into after 1986 clearly indicated that the entire attempt was to alienate the property in favour of the first defendant who, as stated hereinabove, has the controlling interest in the Holding Company which holds 98% in defendant No. 5 Company. The property has been let out by the trust to the company and the entire crux of the above discussion is to show, prima facie, that all the above paper arrangements have been effected in order to obtain the benefit, not for the objects of the Trust or for the beneficiaries under the trust, but to give the benefit to a third party viz. the Company and in the circumstances, the trustees have not only failed in their duties by not insisting on a higher rate of rent (sic) proper by not taking proper steps to protect the property by alienating the property in such a manner that on the expiry of the Trust Deed, the distribution would be totally set at naught and in the above circumstances, a very strong case has been made out by the plaintiff indicating breach of trust. In such an event, a trustee and particularly, defendant No. 1 who has acted with the intention of benefiting defendant No. 5 and 4, who are not the objects of the Trust cannot contend that she has not benefitted for herself as laid down by the Court of Appeals in 1997(2) All England Reports, Page 705 at page 711 and 1995(4) All England Reports, page 769, that the trustee who acts with the intention of benefitting persons who are not the objects of the Trust is not less dishonest because he does not intend to benefit himself. 18. Before coming to the question of the claim made by the defendant No. 5 that they are the tenants, duly protected under the provisions of the Bombay Rent Act, as regards the immovable property is concerned, prima facie, the doctrine of tracing will apply to the facts of the present case as laid down under section 63 of the Indian Trusts Act. Under section 63, a beneficiary can follow the Trust property into the hands of a third person where it has come into his hands inconsistently with the Trust. This is not a case where a transferee was not aware of the fact that he was dealing with the Trust property. Moreover, as stated hereinabove and as observed by Levin on Trust, an alienation by a trustee to a Limited Company of which he is a principal or controlling share holder tantamounts to an alienation to the trustee himself because the Company is, in effect, his alter ego (See page 695, Levin on Trust, 16th Edition). In the present case, as stated hereinabove, defendant No. 4 holds 98% shares of defendant No. 5 Company. Defendant No 4 is the Holding Company. Defendant No. 5 is the subsidiary Company. In the present case, as stated hereinabove, defendant No. 4 holds 98% shares of defendant No. 5 Company. Defendant No 4 is the Holding Company. Defendant No. 5 is the subsidiary Company. Defendant No. 1 holds 55% shares in defendant No. 4 company and if all the above agreements are seen, particularly the Third, Fourth and Fifth and the Suit Agreements, it is clear that the Trust property has been utilised by defendant No. 1 for her own purpose and benefit and not for the objects of the Trust, but it is utilised for the benefit of the trustee herself. Under the above circumstances, a beneficiary is entitled to follow the Trust property into the hands not only of the trustee, but into the hands also of a third person who has come into possession inconsistently with the Trust [See Equity Trusts Specific Reliefs by B.M. Gandhi, IInd Edition, page 331 ]. This is a proprietory remedy available to the beneficiary and it is more powerful than a personal remedy. Section 62 and 65 of the Trusts Act explains the beneficiary's right to recover the trust property from a trustee whereas section 63 gives a right to recover the Trust property from an alienee. In the present case, one more aspect needs to be mentioned that the Suit Agreement which is claimed to be a monthly tenancy by defendant No. 5, is preceded by agreements which they claim to be Tenancy Agreement. As observed by Levin on Trust, 16th Edition and as stated above, when a trustee alienates the property by way of lease, it amounts to alienation of a limited right, but it is for a price and if it is for the price, it is the duty of the trustees to see to it that the best rent is obtained and the best rent is that which takes into account the interest of the beneficiaries. 19. In the present matter, as stated hereinabove, defendant Nos. 19. In the present matter, as stated hereinabove, defendant Nos. 1 and 5 have contended before me that defendant No. 5 is a statutory tenant and in the circumstances, they are protected under the Bombay Rent Act and in the circumstances, it is contended that in the present suit, the plaintiff as beneficiary, is not entitled to seek a declaration for possession because they are trying to bypass the provisions of the Bombay Rent Act by filing the present suit for possession against defendant No. 5. Prima facie, I do not find any merit in the above contention. For deciding jurisdiction, the Court is required to look into the cause of action as spelt out by the pleadings in the plaint. The pleadings in the plaint merely indicate that the present suit is instituted on the basis of breach of trust. Such a suit can never come within the ambit of the provisions of section 28 of the Bombay Rent Act, particularly in view of the fact that the recitals in the Suit Agreement dated 18th December 1992, clearly indicate that it is an independent agreement because it recites that defendant No. 5 is in possession from 1st October 1992 and as stated above, after August 1993, even according to the defendant No. 5, rent is not payable by them on the ground that the Trust has not paid the accrued interest under Clause 7 of the Agreement of 1979 (i.e. the First Agreement). One fails to understand how defendant No. 5 could claim set off with regard to interest on deposit against the statutory rent payable allegedly under the provisions of the Bombay Rent Act. They can claim interest on the deposit only on the footing that the amount was deposited with the Trust and the Trust had agreed to pay interest thereon on that deposit of Rs. 6,88,320/-. There is one more reason why, prima facie, I am not inclined to accept the contention that the present suit comes within the ambit of section 28 of the Rent Act. Prior to entering into the Suit Agreement of 1992, the Company could have claimed that they were the statutory tenants under section 5(11)(b) of the Rent Act. They could have moved the Small Causes Court at that time for a declaration that they are the tenants. Prior to entering into the Suit Agreement of 1992, the Company could have claimed that they were the statutory tenants under section 5(11)(b) of the Rent Act. They could have moved the Small Causes Court at that time for a declaration that they are the tenants. At the same time, they also had an option to a new contractual agreement which is the Suit Agreement of 1992. That Agreement of 1992 nowhere refers to the earlier agreements. No explanation has been given why the said Agreement of 1992 does not refer to the earlier agreements. Moreover, the recitals in the said agreement, prima facie, indicate that the company was put in possession only on 1st October 1992 and that too, as a monthly tenant. In this connection, the doctrine of estoppel by recital, prima facie, would stand attracted [See Hallsbury, Vol. 16, para 1501 and 1504]. The present suit, as stated hereinabove, therefore proceeds on the Suit Agreement of 1992 as an independent agreement. The Company having waived its rights in 1992 to claim the statutory tenancy voluntarily entered into a fresh Agreement of December 1992 in which the above recitals are clearly indicated. The doctrine of waiver is also pressed into service by Mr. Bharucha, learned Counsel for the plaintiff by relying upon the judgment of Supreme Court [reported in 1989, Supplement, Vol. I, S.C.C., page 487, para 24.] He has also pressed into service the fact that in the present case, the recitals in the Suit Agreement clearly indicate that the earlier agreements, even if they are Tenancy Agreements, are deemed to be surrendered. These are the questions which will be decided at the final hearing of the Suit. At this prima facie stage, I am of the view that each of these agreements constitute a circumstance by itself which supports the case of the plaintiff, prima facie, that there is a serious breach of trust committed by the trustees including defendant No. 1 which defeats the rights of the beneficiaries, both to the income and distribution of there corpus and, prima facie, I am satisfied that since the property is being used by the trustee for her own purpose as her company is merely her alter ego, the present suit is certainly maintainable in this Court. It may also be mentioned that in the Affidavit of defendant No. 5 it is not clearly spelt out as to whether they are claiming statutory tenancy form 1979. On the contrary, I find merit in the contention of Mr. Bharucha that if estoppel by recital applies, then I have to look only at the recital in the independent Agreement of 1992. This fact is important because I am inclined to appoint Court Receiver and if the Court Receiver is required to value the property then the date of valuation is important. Therefore, prima facie, I am of view that looking to the pleadings before me, the Suit Agreement is an independent Agreement of 1992. It is entered into in breach of the objects of the Trust. It defeats the rights of the beneficiaries, both to the income and the corpus and taking into account all the above facts and circumstances, including the earlier agreements, as circumstances in support of the plaintiff's case indicating breach, particularly after defendant No. 1 became the trustee, I am inclined to direct the Court Receiver to value the property as on the date of the Suit Agreement dated 18th December 1992. At this stage, it may be mentioned that even the conduct of the Fifth Defendant does not indicate that they have ever claimed statutory tenancy in respect of the agreements. The conduct of defendant No. 5 further indicates that they never opted for statutory tenancy, but willingly entered into the Suit Agreement of 1992. The reason is obvious. Right from 1979, till 1992, the rate of rent has varied from Rs. 4/- per sq. ft. to Rs. 20/- per sq. ft. which is ridiculously low and in the circumstances, defendant No. 5 was always ready and willing to enter into the above agreements. This question arises because, as rightly contended by Mr. Bharucha, learned Counsel for the plaintiff that in the present matter, the trustees have contended that they have entered into agreements because they were threatened that defendant No. 5 would move the Small Causes Court and they accordingly entered into the agreement. This is hardly any defence for the trustees. This question arises because, as rightly contended by Mr. Bharucha, learned Counsel for the plaintiff that in the present matter, the trustees have contended that they have entered into agreements because they were threatened that defendant No. 5 would move the Small Causes Court and they accordingly entered into the agreement. This is hardly any defence for the trustees. The totality of facts and each of these Agreements entered into from time to time followed by subsequent conversion into monthly tenancy indicate that the property was used solely for the benefit of the company which was the alter ego of the trustee and if facts from 1986 are kept in mind, they clearly indicate that not only the income has reduced in comparison with the rising price of property in Bombay, but also no steps were taken by the trustees to see that the best rent is made available to the beneficiaries. The suit is based on breach of trust. In the present matter, the suit claim cannot be defeated on the ground that defendant No. 5 is likely to move the Small Causes Court, particularly when the benefit has been taken by the company which is the alter ego of the trustee herself. This is particularly with regard to the threat of moving the Small Cause Court for fixation of standard rent. In such matters, the clear distinction between the cause of action in a suit on a breach of trust and a suit arising under the Rent Act is required to be kept in mind. The Rent Act does not cover exhaustively all types of relationship. The trustee who puts himself or herself into occupation, prima facie, cannot defeat the allegation of breach of trust on the ground that he or she is in possession as a tenant, particularly when the Suit Agreement clearly indicates that defendant No. 5 opted to enter into agreement from 1st October 1992, without referring to the previous agreements or without making any claims under those agreements. Moreover, in the present case, this Court looks at the problem from a different angle viz. that each of these agreements constitute a circumstance supporting the breach of trust. It indicates the prejudice suffered by the beneficiaries as their income has reduced substantially. In cases where the Court relieves a trustee from the liability arising on account of breach, must apply an objective test viz. that each of these agreements constitute a circumstance supporting the breach of trust. It indicates the prejudice suffered by the beneficiaries as their income has reduced substantially. In cases where the Court relieves a trustee from the liability arising on account of breach, must apply an objective test viz. whether the trustee has acted reasonably as well as honestly and the burden of showing lies on the trustee. In considering a reasonableness of his action, the Court will consider whether a prudent man would have disposed of the Trust property in the manner complained of had it been his own personal property. In the present case, on facts, prima facie, I am of the view that transactions entered into with defendant No. 5 are not at arm's length. For example, a trustee who relies on advice of his Solicitor as to the value proposed as a security is not a per se ground for relief to the trustee to the charge of breach of trust because no prudent man would lend his own money relying on Solicitor's advice on a question of value [See Levin on Trust, page 690, 16th Edition]. 20. The observations made in the preceding paragraph are important because in the present case, it has been argued on behalf of the trustees and defendant No. 5 that plaintiff is not entitled to sue for breach of trust as she is acquiesced to the distribution of income and to the alienation. It is contended on behalf of defendant No. 1 that it is true that in 1986, when Arvind Gandhi died, plaintiff was a minor. However, it is contended that plaintiff studied in USA and during this period, she received her share of rent which was distributed equally amongst all the four beneficiaries. It is contended that the plaintiff was fully aware of defendant No. 5 being in possession as intermittently, plaintiff used to visit Bombay and she used to visit the Office of defendant No. 5 - Poonam Chambers. It is contended that plaintiff was fully aware of all prior agreements between 1979 and December 1992. It is further contended that on 12th May 1992, plaintiff filed a declaration in which she declared that her share in the Trust was Rs. 44,56,603/- and her income from the Trust was Rs. 3,90,000/-. It is contended that plaintiff was fully aware of all prior agreements between 1979 and December 1992. It is further contended that on 12th May 1992, plaintiff filed a declaration in which she declared that her share in the Trust was Rs. 44,56,603/- and her income from the Trust was Rs. 3,90,000/-. It is contended that the plaintiff has been filing income tax and wealth tax returns during the above period right upto 1992 and having acquiesced, it is not open to the plaintiff to now claim breach of trust. In this connection, reliance has been placed by Mr. Tulzapurkar, learned Counsel for defendant No. 5 on the judgment reported in (Fletcher v. Collins)6, 1905, Vol. 2, Chancery Division, page 24. On the other hand, Mr. Bharucha has relied upon the judgment of the Madras High Court, reported in A.I.R. 1978, Madras, page 244. Mr. Tulzapurkar and Mr. Subramaniam have also contended that in present case, the alienation was done by the then trustees and in the circumstances, defendant No. 1 cannot be blamed solely for the said alienation. They further contended that all the family members of Gandhi family had acquiesced to the above alienation and distribution of income throughout the period 1979 upto 1992 and plaintiff was fully aware and it is only in view of subsequent disputes in the family that the plaintiff has been instigated by her sister, who is not a party to the suit viz. Mrs. Sheela Rao to institute the above suit. In the circumstances, they claim that no relief ought to be given to the plaintiff. 21. In the present case, as stated hereinabove, prima facie, the facts indicate that maximum damage has been done to the interest of the beneficiary after 1986 when defendant No. 1 became the trustee. As stated hereinabove, unilaterally the Amenities Agreement was cancelled. Unilaterally, the rent automatically came to be reduced even before the expiry of the agreement between 1984 to 1989 from Rs. 12/- to Rs. 8/- and the agreement is entered into in 1990 @ Rs. 13/- per sq. ft. is only Re. 1/- more than the agreement of 1984. Looking to the area, this is a ridiculous amount of rent. Looking to the price index, this is ridiculous amount of rent. Further the agreements which were executed by the then trustees earlier were for a fixed period of five years. 13/- per sq. ft. is only Re. 1/- more than the agreement of 1984. Looking to the area, this is a ridiculous amount of rent. Looking to the price index, this is ridiculous amount of rent. Further the agreements which were executed by the then trustees earlier were for a fixed period of five years. They had included the renewal clause whereas in the present Agreement of 1992, the entire nature of the agreement is sought to be changed into a monthly Tenancy Agreement and yet the trustees never objected. Even the rent has been stopped after August 1993. Defendant No. 5, who claims to be a tenant claims adjustment of interest towards the rent which is not possible under the Rent Act. The Tenancy Agreement of 1990 is contrary to the Resolution. These facts are enumerated once again because I find merit in the contention of Mr. Bharucha, learned Counsel appearing on behalf of the plaintiff that unless the beneficiary actually knows about the consequences of alienations, the theory of acquiescence cannot defeat her right. In this connection, it may be mentioned that a beneficiary who does not actually know the consequence of alienations is not affected with the knowledge of breach of trust because he might, by enquiry, have ascertained the fact. The reason being that it is the duty of the Trustees and not the beneficiary to see that the Trust fund is not a proper state. Even in the case of Fletcher v. Collins, the observations clearly indicate that acquiescence on the part of the beneficiary would arise if the beneficiary had induced the trustees to enter into the Agreement. In the present case, there is no such inducement even alleged. In the present case, the trustees have never discharged their obligations by calling upon defendant No. 5 - Company to pay the best possible rent taking into account the interest of beneficiaries. In the circumstances, prima facie, I am not inclined to accept the contention of Mr. Tulzapurkar that in view of the alleged acquiescence on the part of the plaintiff, plaintiff is not entitled to any reliefs. 23. Now, coming to the question of the plaintiff's declaration to the effect that 4600 shares should be declared to be a Trust property, I find merit in the contentions advanced on behalf of defendant No. 1. Tulzapurkar that in view of the alleged acquiescence on the part of the plaintiff, plaintiff is not entitled to any reliefs. 23. Now, coming to the question of the plaintiff's declaration to the effect that 4600 shares should be declared to be a Trust property, I find merit in the contentions advanced on behalf of defendant No. 1. The Affidavit filed on behalf of defendant No. 1 indicates that right from the inception, the pattern of share holding of defendant No. 1 in the Holding Company was in favour of defendant No. 1. This was because her grandmother had gifted large number of shares to the first defendant . Secondly I find merit in the contention of Mr. Tulzapurkar that in the present matter, there is no relinquishment of shares as alleged by the plaintiff. When the Rights issue came to be offered, the trustees did not apply and under the circumstances, defendant No. 1 who already had 12.5% shares in the Holding Company had every right to apply for the shares from the common pool which had increased the account of the trustees in applying for the shares and thereby defendant No. 1 became a share holder of 55% in defendant No. 4- Company. There is a difference between non application and renunciation of shares and if the trustees did not take the opportunity of the offer made by the defendant No. 4-Company to buy the shares and in the process, if the Trust lost its opportunity of acquiring the shares, there is no property in existence because the shares had gone into a general pool and the other share holder was entitled as a share holder to buy those shares. In the above circumstances, the question of tracing the shares into the hands of defendant No. 1 did not arise. In such a case, at the highest, it is an example of mismanagement of the Trust funds. There is no evidence whatsoever, prima facie, on record to show that defendant No. 1 pursuaded the said trustees not to apply for the said shares. On the contrary, the plaintiff alleges renunciation of shares which is a different concept from non application for the Rights issue. Taking into account the above facts, I am not inclined to appoint Receiver in respect of the said 4600 shares. 24. On the contrary, the plaintiff alleges renunciation of shares which is a different concept from non application for the Rights issue. Taking into account the above facts, I am not inclined to appoint Receiver in respect of the said 4600 shares. 24. Before concluding, it may be mentioned that according to the learned Counsel appearing for defendant No. 1 and 5, the entire transactions were for the benefit of the Trust and not for the benefit of defendant No. 4/5, as alleged. I do not find any merit in the said contention. However, the general rule under the Indian Trusts Act is that a trustee could not place himself in a position where trafficking in the trust property may prove to be an irresistible temptation. The general rule is that the trustees are not to become owners or lessees of the trust property and this rule is independent of any question of inadequacy of price or unfairness or undue advantage. In the present matter, it is true that the Trust Deed empowered the Trust to alienate the property. The question is whether there is proper exercise of discretion by the trustees in periodical revision of rent and whether they have failed to carry out their duties. In such a case, even if alienation is permitted by the Trust deed, the trustee is required to see that the best possible rent is obtained. The trustee is required to see that at the time of distribution of the corpus, the best possible rent is obtained. The trustee is required to see that at the time of distribution of the corpus, the best possible bargain is struck .The trustees are required to see that if the rent is reduced proper steps are taken against the alienation. In the present case, therefore, on the above facts, prima facie, I am of the view that the above agreements are clear circumstances of the fact that the trustees have failed to carry out their duties and in the process, the beneficiaries have lost substantial amount of income and but for the action taken by the plaintiff, the beneficiaries would not have received rent after August 1993. 25. The above observations are required to be treated as prima facie observations. It is true that large number of questions are required to be gone into at the final hearing of the suit. 25. The above observations are required to be treated as prima facie observations. It is true that large number of questions are required to be gone into at the final hearing of the suit. It is true that in the above case, the fifth defendant cannot be dispossessed. For this purpose, Mr. Subramaniam has relied upon recent judgment of the Supreme Court in Anthony Leo's case. However, the facts of that case does not apply because I am not directing the Receiver to take possession. The question is of protecting the property. The question is of getting the best possible income for the trust and the beneficiaries. It is well settled that in certain cases, the allegations are so relevant that the Court can grant interim relief even after the Court is satisfied that these relevant allegations/averments are ultimately required to be remitted to prove. It is for this reason that I am not going into the validity of the Suit Agreement of 1992, but I am treating all these agreements including the Suit Agreement as a circumstances to show breach of Trust (prima facie). 26. Accordingly, the following interim order is passed: ORDER : (a) Pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay, is appointed Receiver in respect of the premises situate at 4th floor, North Wing, Poonam Chambers, Dr. Annie Beasant Road, Worli, Bombay 400 018. The Court Receiver is directed not to take physical possession of the property. The Court Receiver is directed to appoint a Valuer from his Panel of Valuers and he is further directed to call for a Valuation Report in respect of the said premises as on 18th December 1992. On receiving the report from the valuer the Court Receiver is directed to fix royalty and the security in respect of the above premises. He will, thereafter, call upon defendant No. 5 to enter into Agency Agreement with the Court Receiver on such terms and conditions as the Court Receiver deems fit. The Agency Agreement will be entered into within a period of 12 (twelve) weeks from the date of lodgment of this order with the Court Receiver. Initially, the expenses of the Court Receiver calling for the Valuation Report would be borne by the plaintiff. Court Receiver will not affix his Board on the premises. The Agency Agreement will be entered into within a period of 12 (twelve) weeks from the date of lodgment of this order with the Court Receiver. Initially, the expenses of the Court Receiver calling for the Valuation Report would be borne by the plaintiff. Court Receiver will not affix his Board on the premises. (b) As regards 4600 shares standing in the name of defendant No. 1 in defendant No. 4 Company, at this stage, I am not inclined to appoint Receiver. However, defendant No. 1 is restrained from transferring, alienating, encumbering or creating any third party rights in respect of the said shares in defendant No. 4- Company. She is given liberty to move this Court in case she wants to transfer the said shares. (c) It needs to be clarified that I am not inclined to grant interim prayer Clause (c)(ii) at this stage. However, defendant No. 4 is directed to give particulars of any rights issue, dividends or bonus which defendant No. 4 may issue from time to time in future to the plaintiff. Similarly, I am not inclined to pass any interim orders in terms of prayer Clause (c)(iii). 27. Notice of Motion accordingly disposed of with costs in the cause. 28. Issuance of certified copy expedited. Receiver to act on the certified copy, after the order is lodged with the Court Receiver by the plaintiff. FURTHER ORDERS.: Mr. Subramaniam applies for stay of the orders for a period of six (6) weeks. The above order is stayed for a period of six (6) weeks from today. Notice of Motion allowed. *****