JUDGMENT Bhaskar Bhattacharya, J.: This first appeal is at the instance of the plaintiff in a suit for declaration and injunction and is directed against the judgment and decree dated 28th February, 2001 passed by the learned Judge, Eighth Bench, City Civil Court at Calcutta in Title Suit No.1987 of 1993 thereby dismissing the suit. 2. Being dissatisfied, the plaintiff has come up with the present first appeal. 3. The appellant before us filed in the City Civil Court at Calcutta a suit being Title Suit No.1987 of 1993 thereby praying for declaration that the deed of conveyance dated 24th July, 1992, purported to have been executed by and between Hiran Bala Paul, his mother and the defendant No.1, his brother, was illegal, invalid, void, ab initio and not enforceable in law and for permanent injunction restraining the defendant No.1 from dealing with the suit property as sole and exclusive owner of the property by virtue of the said deed dated 24th July, 1992. The plaintiff also prayed for permanent injunction restraining the defendant No.2, the father of the plaintiff and the defendant No.1, from exercising any power of managing the said property by virtue of any power granted by the defendant No.1 to the defendant No.2. 4. The case made out by the plaintiff may be summed up thus: (a) The plaintiff is one of the co-sharers of premises No.6A, Iswar Mitra Lane, Calcutta – 6 and the defendants are also the co-sharers and the co-owners of the said premises. One Smt. Hiran Bala Paul, the mother of the plaintiff as well as the defendant No.1 and the wife of the defendant No.2, was the trustee of the said premises. One Smt. Anga Devi Paul, since deceased, the maternal grandmother of the plaintiff and the defendant No.1, was the original owner of the property who executed a deed of trust, by which the plaintiff is one of the ultimate beneficiaries and the defendants are the other beneficiaries. (b) The defendants had no right to deal with the suit property defying the beneficial interest or right of ownership of the plaintiff in the suit premises. After the death of Hiran Bala Paul, as per the provision of the deed of trust executed by the settler of the trust, the plaintiff has become the joint owner of the suit property being 6A, Iswar Mitra Lane. After the death of Hiran Bala Paul, as per the provision of the deed of trust executed by the settler of the trust, the plaintiff has become the joint owner of the suit property being 6A, Iswar Mitra Lane. (c) The plaintiff filed a suit in the City Civil Court at Calcutta being Title Suit No.623 of 1993 thereby praying for declaration that the plaintiff was the joint owner having a share in the suit premises and for temporary injunction restraining the defendants from selling or transferring the suit property till the disposal of the suit. In the said suit, the plaintiff also filed an application for injunction wherein the defendant No.2 appeared and filed objection stating that the deed of trust created by Anga Devi Paul made a provision to give a consent in writing to the trustee, namely, Hiran Bala Paul, to transfer and assign the premises with the consent of the defendant No.2 and in pursuance of the clause 5 of the said deed of trust, the trustee, namely, Hiran Bala Paul with the consent in writing of her husband sold and transferred the said premises to the defendant No.1 by a registered deed of conveyance dated 24th July, 1992 and subsequently, the defendant No.1 executed a deed of general Power of Attorney in favour of his father for the purpose of realising rent from the tenants. (d) According to the deed of trust dated 4th November, 1951, Hiran Bala Paul had life interest and after her death, the property would devolve equally on her husband and her male descendants and the trust would come to an end. Thus, on the death of Hiran Bala Paul and her husband, the plaintiff and the defendant No.1 would become the absolute owners of the property. (e) By a letter dated 6th March, 1984, which appeared to have signed on 23rd March, 1984, Hiran Bala Paul informed that it was impossible for her to work as trustee and as such, in terms of clause 7 of the deed of trust she refused to act as a trustee any further and relinquished the office. (e) By a letter dated 6th March, 1984, which appeared to have signed on 23rd March, 1984, Hiran Bala Paul informed that it was impossible for her to work as trustee and as such, in terms of clause 7 of the deed of trust she refused to act as a trustee any further and relinquished the office. (f) After the issue of the said letter, by a further letter dated 2nd April, 1984 addressed by the defendant No.2 to the plaintiff and the defendant No.1, the defendant No.2 confirmed the same and continued to act as the sole trustee under the provision of the deed of trust. (g) After the relinquishment of the power as a trustee, Hiran Bala Paul had no right to sell or transfer the property to any person. (h) The alleged deed of conveyance dated 24th July, 1992 was the result of a collusion and connivance by and between the two defendants and the said Hiran Bala Paul and the deed was never executed for valuable consideration. (i) No consideration for the said property had, in fact, passed between the parties and the defendant No.1 was not solvent to pay the alleged amount of consideration made in the deed of conveyance. Thus, the said sale-deed was illegal, invalid and was not binding upon the plaintiff. 5. The suit was contested by the defendant No.1 by filing written statement thereby denying the material allegations made in the plaint and the defence of the defendant may be summed up thus: (1) In pursuance of clause 5 of the deed of trust created by Anga Devi Paul, the defendant No.2, gave consent in writing to the trustee, Hiran Bala Paul to sell the suit property and as such, Hiran Bala Paul on 24th July, 1992 sold the property to the defendant No.1 for a consideration of Rs.1,00,000/- and in the said deed the defendant No.2 joined as a confirming party in acknowledgement of his consent for the transfer. By virtue of the sale-deed, the defendant No.1 had become the absolute owner of the suit premises and had been realising rent from the tenants through his constituted attorney. (2) It was denied that the defendant No.1 was not solvent to pay the amount. The deed dated 24th July, 1992 was valid and Hiran Bala Paul put her thumb impression. By virtue of the sale-deed, the defendant No.1 had become the absolute owner of the suit premises and had been realising rent from the tenants through his constituted attorney. (2) It was denied that the defendant No.1 was not solvent to pay the amount. The deed dated 24th July, 1992 was valid and Hiran Bala Paul put her thumb impression. She understood the contents of the deed and the deed was explained to her and at the same time the deed was registered under Registration Act. (3) Hiran Bala Paul had the power to sell or mortgage the suit property with the consent of her husband and as such, the sale-deed was legal, valid and conferred title on the defendant No.1. The suit was, thus, liable to be dismissed. 6. At the time of hearing of the suit, both the plaintiff and the defendant gave evidence in support of their respective claims and the learned Trial Judge, as indicated earlier, by the judgment and decree impugned herein, dismissed the suit with the finding that the sale-deed dated 24th July, 1992 conveyed full title in favour of the defendant No.1 and Hiran Bala Paul was competent to sell the property with the consent of her husband in terms of the deed of trust. 7. Being dissatisfied, the plaintiff has come up with the present appeal. 8. After going through the materials on records, we find that the existence of the trust deed executed by the original owner of the property, i.e. the maternal grandmother of the plaintiff and the defendant No.1 is not in dispute. By the said deed, the settler appointed her daughter, the mother of the plaintiff and the defendant No.1, as the trustee of the property during her lifetime with the stipulation that on her death, the trust would come to an end and her husband, if then alive, along with her male descendants would become absolute owners of the property. The trustee was given life interest with a clause in the deed that she would be entitled to sell, create charge or mortgages the property with the written consent of her husband. The trustee was given life interest with a clause in the deed that she would be entitled to sell, create charge or mortgages the property with the written consent of her husband. In clause 7 of the trust deed, the said trustee was given right to retire and in such a situation, it was provided that her husband, if alive, would be the next trustee and in his absence, the senior most male descendent would be the next trustee. 9. According to the plaintiff, his mother, prior to the date of the execution of the alleged sale-deed, in writing informed that she was not inclined to act as trustee any further and thereafter the defendant No.2 started acting as trustee and as such, the purported deed alleged to have been executed after the relinquishment of the office did not convey any right in favour of the defendant. The sale-deed was also challenged as outcome of collusion between the mother of the plaintiff and the defendants and it was contended that the defendant No.1 had no financial capability to pay even the consideration amount mentioned in the sale-deed. 10. The learned Trial Judge, as it appears from the judgment and decree impugned herein, first held that the plaintiff could not satisfactorily prove the signature of her mother appearing on the alleged letter relinquishing the office of the trustee marked Exbt-1 by accepting the defence of the defendant No.1 that their mother was an illiterate lady although the fact that she was not illiterate would appear from the signature appearing on the deed of trust itself; then the learned Trial Judge by relying upon the provision contained in Section 45 of the Indian Trust Act held there was no power of the trustee conferred in the deed of trust to relinquish the office of the trustee after accepting the same by totally overlooking the clause 7 of the deed. The learned Trial Judge further held that the plaintiff in his cross-examination admitted that his mother during her life time never accepted her husband as a trustee and thus, according to him, the plaintiff was estopped from contending that the mother relinquished the office of the trustee at any point of time during her lifetime. The learned Trial Judge further held that the plaintiff in his cross-examination admitted that his mother during her life time never accepted her husband as a trustee and thus, according to him, the plaintiff was estopped from contending that the mother relinquished the office of the trustee at any point of time during her lifetime. Ultimately, the learned Trial Judge proceeded as if the plaintiff otherwise did not challenge the legally or genuineness of the sale-deed allegedly executed by the trustee in favour of the defendant No.1 and thus, dismissed the suit. 11. Mr. Banerjee, the learned senior advocate appearing on behalf of the plaintiff/appellant, at the outset, drew our attention to the admission of the defendant in evidence that he could not say whether his father was a trustee at the time of execution of the sale-deed in his favour and that he heard from his mother that she relinquished the office of the trustee, although he has subsequently rectified such statement by saying that his mother never relinquished the office of the trustee. Mr. Banerjee further contends that the learned Trial Judge totally overlooked the clause 7 of the deed authorising the trustee to retire and in that case, there is provision for appointing her husband as a trustee in her place. Mr. Banerjee further contended that the learned Trial Judge did not consider the other question whether the trustee was at all authorised to deprive one of the ultimate beneficiaries by selling the property to one of them and that too, by way of a fictitious deed where no consideration really passed between the parties. The appellant has also filed an application for acceptance of the certified copy of the deed of trust and another document executed by his mother for the purpose of showing that the mother was not at all illiterate and as such, the impugnd deed showing execution of the same by putting thumb impression of the mother was not a genuine one. It appears from the deposition of the plaintiff that a certified copy of the trust-deed was marked as Exbt-3 but in the records we did not find such exhibit. It appears from the deposition of the plaintiff that a certified copy of the trust-deed was marked as Exbt-3 but in the records we did not find such exhibit. Both the parties have, however, admitted that the xerox copy of the certified copy of the trust deed annexed to the application for additional evidence before this Court is a genuine one and accordingly, we have decided to act on such document as a genuine one. 12. Mr. Chatterjee, the learned senior advocate appearing on behalf of the respondent, on the other hand, supports the judgement and decree passed by the learned Trial Judge and contends that no evidence was adduced by the plaintiff making any allegation that the defendant had no financial capability to pay the amount. Mr. Chatterjee further contends that a trustee after accepting the office can relinquish the same only with the consent of a Court and thus, in the absence of any such order of the court granting such permission to the trustee, such plea is not tenable and prays for dismissal of the appeal. 13. First, we propose to consider whether a trustee even if there is provision of retirement in the deed of trust can without the consent of Court relinquish the office. 14. In order to consider such question, it would be necessary to refer to the following provisions contained in Sections 70 to 75 of the Indian Trust Act which are quoted below: “70. Office how vacated.—The office of a trustee is vacated by his death or by his discharge from his office. 71. Discharge of trustee.—The trustee may be discharged from his office only as follows: (a) by the extinction of the trust; (b) by the completion of his duties under the trust; (c) by such means as may be prescribed by the instrument of trust; (d) by appointment under this Act of a new trustee in his place; (e) by consent of himself and the beneficiary, or, where there are more beneficiaries than one, all the beneficiaries being competent to contract; or (f) by the Court to which a petition for his discharge is presented under this Act. 72. 72. Petition to be discharged from trust.—Notwithstanding the provisions of Section 11, every trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and if the Court finds that there is sufficient reason for such discharge, it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, unless a proper person can be found to take his place. 73. Appointment of new trustees on death, etc.—Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from 1[India], or leaves 36[India] for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an inconsistent trust, a new trustee may be appointed in his place by: (a) the person nominated for that purpose by the instrument or trust (if any), or (b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee. Every such appointment shall be by writing under the hand of the person making it. On an appointment of a new trustee the number of trustees may be increased. The Official Trustee may, with his consent and by the order of the Court, be appointed under this section, in any case in which only one trustee is to be appointed and such trustee is to be the sole trustee. The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power. 74. The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power. 74. Appointment by Court.—Whenever any such vacancy or disqualification occurs and it is found impracticable to appoint a new trustee under Section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly. Rule for selecting new trustees.—In appointing new trustees, the Court shall have regard (a) to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust; (b) to the wishes of the person, if any, empowered to appoint new trustees; (c) to the question whether the appointment will promote or impede the execution of the trust; and (d) where there are more beneficiaries than one, to the interests of all such beneficiaries. 75. Vesting of trust-property in new trustees.—Whenever any new trustee is appointed under Section 73 or Section 74, all the trust-property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee as the case may require. Powers of new trustees.—Every new trustee so appointed, and every trustee appointed by a Court either before or after the passing of this Act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the author of the trust. (Emphasis supplied by us) 15. After going through the aforesaid provisions of the Act, we find that, as provided in Section 70, the office of the trustee can be vacated either on the death of the trustee or on his discharge. Section 71 enumerates the circumstances when a trustee may be discharged and one of such clauses indicates that he may be discharged by such means as may be prescribed in the instrument of trust. Section 71 enumerates the circumstances when a trustee may be discharged and one of such clauses indicates that he may be discharged by such means as may be prescribed in the instrument of trust. In the instrument of trust, it is provided that the trustee can relinquish her office and in that case, her husband, if he is then alive or in his absence, the senior most male descendent would be the next trustee. But the means of such appointment as mentioned in clause (a) of Section 71 of the Act is not prescribed in the deed. Section 72 gives right to the trustee to apply for being discharged before the Principal Court of Civil Jurisdiction which necessarily implies, that even if any right is given to a trustee to relinquish the office in the deed, he cannot simply run away on the allegation that he has relinquished the office and the court mentioned in Section 72 would verify whether he would be permitted to relinquish. According to Section 73 of the Act, whenever the office of the trustee falls vacant by the death of the trustee or the trustee wants to get rid of the duty of the trustee, or other circumstances mentioned therein exist, a new trustee should by appointed by the person nominated for that purpose as mentioned in the deed of trust if any and if there is no such person, clause (b) of that Section would be attracted. According to clause (b), in a case like the present one, when nobody is nominated by the trust-deed to give fresh appointment of a trustee on the relinquishment of the existing trustee and at the same time, the author of the trust is also not alive, the retiring trustee himself with the consent of the Court should give appointment to the next trustee which must be in writing with the hand of the person making it as provided in Section 73 of the Act. Section 74 gives right to the beneficiary to apply for appointment for new trustee if it is not possible to appoint a new trustee in terms of Section 73 of the Act. Section 74 gives right to the beneficiary to apply for appointment for new trustee if it is not possible to appoint a new trustee in terms of Section 73 of the Act. Therefore, in this case, admittedly, the beneficiaries not having applied for appointment of a new trustee on the alleged relinquishment of the original trustee, the only other mode by which the father of the plaintiff could be appointed was the one prescribed in Section 73 of the Act on the application of the retiring trustee by giving appointment in writing under her own hand with the permission of the Court. Therefore, by virtue of Exbt-1 and Exbt- 2, the mother of the plaintiff could not relinquish the office. We, therefore, hold that in this case it has not been proved that the mother of the plaintiff during her lifetime lawfully relinquished the office nor is it proved that his father was appointed in her place by the mother in her own hand writing with the leave of the Court. 16. The next question is whether the mother of the plaintiff really sold the property to the defendant No. 2 and that too, for the legal necessity, in order to convey title in his favour. 17. On a plain reading of the trust-deed, it is apparent that the trustee was given mere life estate but was permitted to sell, create charge or mortgage indicating that she was permitted to do so only in case of legal necessity. She was not given any right to make gift of the property and her interest was described as a life interest. 18. We are impressed by the submission of Mr. Banerjee that the learned Trial Judge should have noticed that in the deed of trust itself, as would appear from the certified copy thereof, the trustee put her signature in Bengali and thus, it is not possible to accept the contention of the defendant that she was illiterate. The learned Trial Court did not go into this aspect of the matter. Even if the trust property is sold for legal necessity, it must be proved that the money received from the sale of the property was spent in its entirety for such legal necessity, otherwise, the leftover will form part of the trust property and the beneficiaries would get right over the same. Even if the trust property is sold for legal necessity, it must be proved that the money received from the sale of the property was spent in its entirety for such legal necessity, otherwise, the leftover will form part of the trust property and the beneficiaries would get right over the same. Further, we find that the property, a two-storied building in the heart of the city was allegedly sold to one of the beneficiaries at a paltry amount of Rs.1,00,000/-. The purchaser of such property who himself is a beneficiary has a duty to explain the circumstances under which he purchased the property and that he had the requisite fund with him at the relevant point of time. The property being a trust property, the learned Trial Judge, as a principal Court of the civil jurisdiction, had the duty to consider all these questions when a beneficiary has alleged collusion between the trustee and one of the beneficiaries and in such circumstance, the onus of the plaintiff becomes insignificant. In this connection we may appropriately refer to the following observations of the Apex Court in the case of H. E. H. The Nizam's Jewellery Trust. M/s. Shanti Vijay and Co., etc. etc. vs. Princess Fatima Fouzia and others reported in AIR 1980 SC 17 where the said Court reminded that even when absolute power has been given to the trustee to sell, such power may be controlled by the Court: “The power conferred on the Board of Trustees is no doubt discretionary, but on the principle embodied in S. 49 viz., that when such discretionary power is not exercised reasonably and in good faith, such power may be controlled by a court. There was no warrant for the suggestion made by the Board of Trustees before the High Court that the power is absolute. The law on the subject is succinctly stated in Underhill's Law of Trusts and Trustees, 12th Edn., p. 472: "....it would seem that, even where trustees claim to exercise their discretion as to investments, the court will, in a proper case, direct an inquiry whether it is for the interest of the beneficiaries that a particular investment should be continued or called in. So, too, where absolute discretion has been given to trustees to do a particular act (e.g., to sell the trust property), the court cannot compel them to exercise the power, but if they do exercise it, the court will see that they do not exercise it improperly or unreasonably". 19. We, therefore, set aside the judgment and decree passed by the learned Trial Judge, and remand the matter back to the learned Trial Judge to consider the following questions: a) Whether the sale-deed was really executed by the mother of the plaintiff knowing the contents of the same? b) Whether there was any legal necessity for such sale? c) Whether the deed was executed on payment of the consideration money mentioned in the sale-deed or was a collusive one? d) Whether the amount of consideration, even if passed was adequate at the material point of time? e) If the deed was really executed for legal necessity on payment of the consideration amount by the defendant no. 1, whether the entire amount was spent for such legal necessity? 20. The parties would be entitled to lead further evidence on the aforesaid points and the Trial Court on consideration of such additional evidence as well as the evidence on record would arrive at its own finding. The observations made in this judgment on the aforesaid points are all tentative and will not be binding upon the learned Trial Judge. Since the matter is pending for a long time, the learned Trial Judge is directed to dispose of the matter within six months from the date of receipt of the lower court records. 21. The appeal is allowed; the judgment and decree of the Trial Court are set aside and the matter is remanded back to the learned Trial Judge on the aforesaid point by holding that the mother of the parties never relinquished her office during her lifetime. 22. Let the interim order of status quo already granted in this appeal continue till the disposal of the suit. Parties will be at liberty to file application for permission to repair before the Trial Court and if such application is filed the learned Trial Court will dispose of such application in accordance with law. 23. In the facts and circumstances, there will be, however, no order as to costs.