JUDGMENT -T.K. CHANDRASHEKHARA DAS, J.:---Rule. Returnable forthwith. By consent heard the parties. 2.The petitioners challenge the order of the lower Court in Civil Misc. Application No. 110/98 wherein the Court below found that they are unfit or rather disqualified to be appointed as trustees of the Trust known as Momin Pada Yakub Baig Trust at Panvel. A scheme had been framed by the District Judge of Kolaba on 16th July 1996 whereby the total number of trustees was restricted to 5. Out of this, three trustees are to be appointed from each of the branches of the settlor's family, namely, each from branches of his three sons, Ahmed Baig, Usman Baig and Yusuf Baig. The remaining two trustees shall be chosen from the persons belonging to Sunni Hanafi Muslim Jamat. The petitioner's candidature to be appointed as the members of the branches of the settlor's son has been rejected by the Court below on the ground that their fathers are in possession of C.T.S. No. 895 of the trust, situated at Panvel wherein they asserted the ownership and in the alternative claiming adverse possession and limitation, in Suit No. 7/72. The said ultimately came up before this Court as IInd Appeal No. 436/1986 which is pending. As far as the 2nd petitioner is concerned, the Court has rejected his candidature on another ground also. He applied through the Power of Attorney because he is not residing in Bombay. Therefore his application has been rejected on the above two grounds. 3.I fully endorsed the view of the trial Court on this point as far as the petitioner No. 2 is concerned. Because the trustee cannot be represented by a proxy settlor's intention that his successor in interest has to hold the trustee and that cannot be represented through Power of Attorney. Moreover the Court has found that he is not staying in Bombay. Therefore I hold that the rejection of candidature of petitioner No. 2 is validly made and as far as the petitioner No. 2 is concerned the writ petition is dismissed. 4.As far as the petitioner No. 1 is concerned, the learned Counsel for the petitioner Mr. Moreover the Court has found that he is not staying in Bombay. Therefore I hold that the rejection of candidature of petitioner No. 2 is validly made and as far as the petitioner No. 2 is concerned the writ petition is dismissed. 4.As far as the petitioner No. 1 is concerned, the learned Counsel for the petitioner Mr. Solkar submits that it is true that the dispute between the father of the said petitioner No. 1 and the trust is pending in Civil Suit No. 7/72 with respect to the property comprising Survey No. 895, which is admittedly a trust property. Petitioner No. 1 is residing in that house alongwith father having no interest in the property. According to Mr. Solkar mere residence by the first petitioner along with his father without having any legal interest in the property or in the litigation cannot be set up as a ground of disqualification as envisaged under Clause 4(g) and (i) of the Scheme. 5.The learned Senior Counsel for the respondent Mr. Apte submits that the residence in the disputed suit property along with the father is itself sufficient for the disqualification contemplated under Clause 4(g) and (i) of the Scheme. For that purpose he invited my attention to the commentary in the text book of Bombay Public Trusts Act, 1950 of 1997 ninth edition by Shri K.N. Shah at page 521 which says that the following are the disqualifications for appointment of a trust. i) A person domiciled abroad; ii) an alien enemy; iii) a person having an interest inconsistent with that of the beneficiary; iv) a person in insolvent circumstances and unless the personal law of the beneficiary allows otherwise; and v) married woman and minor. 6.Mr. Apte relying on ground No. 3 above has argued that the petitioner had an interest, and he has been enjoying the benefit in the said deemed to be one adverse to the trust. With great respect I cannot agree to this argument. In order to become interest adverse to the beneficiary, he must have some tangible and intangible interest in the property. Admittedly the first petitioner is only staying with the father whose interest adverse to the trust. He has no domain over the house or he is not residing in the house as a matter of right. So long as his father desires he can stay there. Admittedly the first petitioner is only staying with the father whose interest adverse to the trust. He has no domain over the house or he is not residing in the house as a matter of right. So long as his father desires he can stay there. Therefore I cannot accept the contention of Mr. Apte that merely because the father had a dispute with the trust with respect of the house in which the son is staying along with the father cannot be treated as an interest incurring disqualification to be appointed as a trustee. 7.In view of this I find no reason to reject the candidature of the petitioner No. 1 for considering the appointment of trustee from among the descendents of the settlors. The learned Counsel for the respondent Mr. Apte however contented that the Court has considered only the disqualification of the nature that has been discussed here but Court has to consider whether he has incurred any other disqualification contained under the scheme. In the light of this plea though I set aside the order passed by the Court below as far as the petitioner No. 1 is concerned, the Court below is not precluded to consider as to whether he incurs any other disqualification under the scheme. I direct the Court below to appoint the first petitioner as a trustee after considering whether he incurrs any other disqualification under the scheme. The Court should consider this matter and pass the final order within a month from the date of receipt of this order. Hence the writ petition is partly allowed and partly dismissed. 8.Rule is disposed of in the above terms. Certified copy expedited. Petition allowed partly.