Judgment :- Ashim Kumar Banerjee, J. NOTE: Five appeals as above, would relate to the common judgment and order impugned passed by the learned Single Judge on August 24, 2012. We heard the appeals analogously and would dispose of the said appeals by the forgoing judgment and order. For the purpose of reference to the page numbers we would refer to Appeal No. 438 of 2012. FACTS: Mutti Lall Seal, a rich Bengali gentleman in the early part of 19th century created a Public Charitable Trust for a period of 99 years. He executed the Deed of Trust in 1948 for the purpose of carrying Deb Seba and other charitable activities for a period of 99 years that came to an end on February 20, 1948. The heirs of Mutti Lall Seal created a further Trust executed on January 28, 1947 just prior to the expiry of the period mentioned in the earlier Deed of Trust. The settlors decided to carry on the religious and charitable activities as was done before, in deference to the desire of late Mutti Lall Seal. The Deed of Trust dated January 28, 1947 would appear at page 30-67 of the Paper Book. As per the Deed of Trust, the Board of Trustees would be formed in every five years interval when new trustees would be appointed. The Board of Trustees would be constituted by ten members, three from Panna Lall group, three from Kanai Lall group and rest four from Gobinda Lall group. The manner of selection and/or election of the Trustees as provided in the Deed of Trust were as follows: “The Trustees shall be appointed by ‘voting’ in the manner of election, from out of the family branches of Late Panna Lall Seal and Late Kanai Lall Seal, but be it known that the three Trustees appointed from the family branch of Late Kanai Lall Seal shall be competent to act as Trustees as long as they are alive, should they so desire. Trustees shall be appointed every five years by rotation from the family branches of Gobinda Lall Seal and this rotation shall commence with the eldest son”. These appeals would relate to a dispute with regard to selection of the fourth Trustee from the branch of Gobinda Lall for the year 2012 to 2017. From the genealogical table we find, Gobinda Lall Seal had nine sons. These appeals would relate to a dispute with regard to selection of the fourth Trustee from the branch of Gobinda Lall for the year 2012 to 2017. From the genealogical table we find, Gobinda Lall Seal had nine sons. Disputes and deferences arose in the said group in the year 1953 when Bishwa Lall Seal and others filed a partition suit against Horo Lall Seal and others, all belonged to the group of Brojo Lall Seal a son of Gobinda Lall. Brojo Lall Seal group did not have any representation in the Trust in view of the dispute, as we are told. This Court decreed the suit vide decree dated September 13, 1956. The learned Single Judge declared, the five plaintiffs in the said suit and the defendants Duni Lall, Priya Lall and Gopi Lall as reversionary heirs of Brojo Lall would have equal 1/8th share each. In view of the said decree Brojo Lall group started representing themselves in the Trust through rotation. In 1997 some of the parties filed Originating summons suit to have the answer to the following questions: a) “Are the legal heirs of the Late Brojo Lall Seal entitled to be selected as Trustees in the Board of Trust under the Trust Deed made on 27.1.1947? b) Are the trustees of the Trust Deed dated 27.1.1947 under a duty and/or obligation to consider the legal heirs of Late Brojo Lall Seal declared under the decree dated 13.9.1956 passed in a suit No. 514 of 1953 of this Court for the purpose of election of the Board of Trust under the Trust Deed dated 27.1.1947? c) Is the election of the Board of Trust held in December, 1996 without appointment of any legal heir of Late Brojo Lall Seal null and void and liable to be set aside? d) Was the election of Board of Trustees held in the year 1992 without appointment of any legal heir of Late Brojo Lall Seal null and void and liable to be set aside? e) Are the persons purportedly elected in December, 1996 entitled to assume their office from February 1997? f) Such other question or questions as to this Court may deem fit and proper to decide?” Being aggrieved by the answers, some of the parties went up to the Division Bench. e) Are the persons purportedly elected in December, 1996 entitled to assume their office from February 1997? f) Such other question or questions as to this Court may deem fit and proper to decide?” Being aggrieved by the answers, some of the parties went up to the Division Bench. Division Bench held, the legal heirs of Brojo Lall Seal could only be considered for being selected as Trustees on the basis of the devolution of right, title and interest of Gobinda Lall. The Division Bench also observed, it was the branch of Gobinda Lall that would elect their own Trustees and heirs of Late Brojo Lall may be considered by the said branch as and when the turn of Brojo Lall would come by rotation and not otherwise. The dispute again arose in 2002 with regard to appointment of Kanak Lall Seal. By judgment and order dated May 20, 2005 the Division Bench observed, if due to inevitable ground or reason, any branches of the three families fail to appoint Trustees, the said family branch would be able to appoint trustees from any of the three branches named above, being the heirs of Late Mutti Lall Seal. The Division Bench considered the Bengali word ‘Niyog’ and termed it as “appointment”. The Division Bench held, question of voting would arise only in case of other two branches and not Gobinda Lall branch. The Division Bench considered a situation when Kanak Lall was unanimously selected by the members of Brojo Lall branch that the Division Bench accepted. This litigation would relate to the appointment for the year 2012-2017. The parties could not be ad idem. This time, the trustees appointed one Dibyendu Seal from Brojo Lall Seal group taking advantage of the Clause of exception with regard to appointment of a trustee in case of dispute. Such decision was challenged by another member of the branch, Ashish Seal inter-alia praying for setting aside of the decision of the Board of Trustees taking Dibyendu as representative of Brojo Lall branch. The learned Single Judge initially appointed a special officer to hold a meeting of the parties. The Division Bench held, there was no scope for appointment of special officer as the parties would have to elect their own nominee. Accordingly, matter was remanded back. The learned Single Judge initially appointed a special officer to hold a meeting of the parties. The Division Bench held, there was no scope for appointment of special officer as the parties would have to elect their own nominee. Accordingly, matter was remanded back. This time, the learned Single Judge, by judgment and order dated August 24, 2012 appearing at page 360-374 of the paper book, disposed of the application by directing, holding of the meeting of the heirs to select the trustees, His Lordship held as follows: i) Division Bench held, branch of Gobinda Lall would elect their own trustee. The heirs of Brojo Lall would be considered as and when their turn would come. ii) Question of election or selection came up for consideration before the Division Bench on February 23, 1999 and subsequently on May 20, 2005 when it was held, the Trust Deed was unambiguous regarding appointment of Trustees from the three branches. If the heirs of the above named three branches have selected and nominated Kanak Lall as a trustee of the branch of Gobinda Lall, appointment was valid. iii) “In my opinion there appears to be an apparent conflict between the two judgments”. Former Division Bench held, branch of Gobinda Lall would elect their own trustee, Brojo Lall’s turn would come by rotation. Judgment dated May 20, 2005 would say, Trustees from Gobinda Lall branch would be appointed by rotation starting from the eldest son. Their Lordships (two Division Benches) were however, ad idem, question of voting would not arise at all. iv) Appointment of a Trustee from Gobinda Lall branch cannot be automatic. Someone would have to determine, who was the eldest in the family. The Deed of Trust did not provide any mechanism. v) His Lordship rejected the contention, initial seniority of a family member would determine the seniority of his descendants. vi) His Lordship did not accept the minutes of the meeting of the legal heirs of Brojo Lall held on December 22, 2001 as well. vii) His Lordship made declaration, the eldest male member, by age, in the family of Gobinda Lall IRrespective of any line or branch will be the 10 th Trustee and their age would be determined from admitted documents like PAN Card or Voter Identity Card. Being aggrieved, all the parties filed the respective appeals. Mr. vii) His Lordship made declaration, the eldest male member, by age, in the family of Gobinda Lall IRrespective of any line or branch will be the 10 th Trustee and their age would be determined from admitted documents like PAN Card or Voter Identity Card. Being aggrieved, all the parties filed the respective appeals. Mr. Jiban Ratan Chatterjee learned senior counsel being assisted by Sree Kaushik Dey learned advocate advanced his argument on behalf of the Board of Trustees. According to them, the Board of Trustees was entitled to nominate someone from the Brojo Lall branch as trustee following the Clause of exception. They would rely upon a decision of this Court in the case of Mahesh Tulshain Vs. Rajendra Kumar Banka & Ors. reported in 2002 Volume-I Calcutta Law Times Page-546. They principally argued the applicability of Section 73 and 74 of the Indian Trust Act. According to them, the proceeding initiated by Ashish was not maintainable. The learned Counsel Mr. Amar Nath Das appearing for Dibyendu Lall, would adopt the contentions raised by Mr. Chatterjee and Mr. Dey on behalf of the Board of Trustees. In addition, he would rely upon Section 7 of the Charitable and Religious Trust Act 1920. According to him, Ashish could have invoked Section 7 of the said Act of 1920 and the proceeding under Section 73 and 74 of the Indian Trust Act was not maintainable at all. Mr. Samit Talukdar learned senior Counsel appearing for Ashish would contend, prior to 1992 Brojo Lall group did not have any right to represent them in the Board. They got their right vindicated and it was decided that the trustees in Gobinda Lall group would be appointed through rotation on the basis of seniority hence, the Board of Trustees could not have any authority to appoint Dibyendu who did not enjoy the confidence of Brojo Lall group. OUR VIEW: The present litigation is not an Originating Summons suit, we have also doubt in our mind with regard to the applicability of Section 73 and 74 of the Trust Act. However, we do not wish to go into such technicality, particularly when a Public Charitable Trust is in difficulty as the dispute would cause hindrance to smooth running of the Trust. However, we do not wish to go into such technicality, particularly when a Public Charitable Trust is in difficulty as the dispute would cause hindrance to smooth running of the Trust. If we closely look to the relevant Clause and appreciate the conduct of the parties so long as to how they would react to the said Clause, we would find, the branch of Gobinda Lall would have four Trustees by rotation according to seniority. The parties decided, they would follow the system and accordingly would go on selecting their representative in the Board. The present dispute would relate to the fourth Trustee that the parties were unanimous, he would come from Brojo Lall branch. Brojo Lall branch had eight sub branches recognized by the decree in the partition suit. Mr. Chatterjee and Mr. Das would jointly say, since Brojo Lall branch got the opportunity to send representative their turn would come according to seniority and Duni Lall being the senior most member would represent the Trust. Duni Lall is not alive. Dibyendu claims to be belonging to that group. We do not appreciate the logic. The parties accepted the branch tree up to the level of Brojo Lall. The branch tree must stop at some level for the relevant purpose, otherwise in the near future there would be impossibility in view of further sub branches being created. Gobinda Lall group would have four trustees through rotation determined by seniority, that seniority would come by rotation in nine branches being the nine sons of Gobinda Lall. This time, fourth vacancy would come within the fold of Brojo Lall branch hence, Brojo Lall branch would send one representative. No mechanism was spelt out in the Deed of Trust as to how Brojo Lall representative would be selected. The parties acted so long on the basis of turn by rotation. We do not wish to disturb on that score. The logic of seniority, if at all to be expected, must be the senior most member of the family belonging to Brojo Lall branch. The matter may be looked into another angle. If we accept, it would be Duni Lall branch being the senior most one there might be difficulty as the younger son of Duni Lall would hardly get 0any representation in the future. This was not contemplated. The matter may be looked into another angle. If we accept, it would be Duni Lall branch being the senior most one there might be difficulty as the younger son of Duni Lall would hardly get 0any representation in the future. This was not contemplated. If we follow the logic of rotation, then also one branch might not get any representation at all in 100 years that would be an impossible situation. We are of the view, the settlors did not contemplate such a situation. Their direction for rotational appointment would relate to the sons of Gobinda Lall and not thereafter. Brojo Lall Seal did not have any son. His property vested in the branch of Balai Lall seal, Amrita Lall Seal and Gosta Lall Seal. The partition decree acknowledged the members of the said three groups and held, they were entitled to 1/8 th share that would constitute eight branches. Hence, the senior most member from amongst all the eight branches should be appointed as trustee representing Brojo Lall branch in Gobinda Lall group. We do not appreciate the conduct of the Board of Trustees to appoint Trustee from Gobinda Lall group. Both the Division Benches observed, it was for the Brojo Lall group to select their own trustee. Hence, the appointment of Dibyendu by the Board of Trustees was liable to be set aside and His Lordship was right in doing so. We do not find any logic of Ashish making a claim. In fact, he did not specifically ask for his appointment. All the members belonging to Brojo Lall group would hold a meeting to find out the senior most member in the family. The seniority would be decided through Voter ID Card and PAN Card as directed by His Lordship. Similarly, next time when Brojo Lall group would get opportunity if the existing trustee from the said branch was alive, he would be debarred from competing for the post. The second senior most member in age would be eligible to be appointed. By this process, Brojo Lall would have representation. With regard to the other group, we do not wish to make any comment since there was no dispute with regard to the selection of the other members. We abundantly make it clear, our decision would relate to Brojo Lall group only and the same would not be binding upon the other branches. With regard to the other group, we do not wish to make any comment since there was no dispute with regard to the selection of the other members. We abundantly make it clear, our decision would relate to Brojo Lall group only and the same would not be binding upon the other branches. They would be free to appoint their own nominee in accordance with the Trust as per their own interpretation and custom so long followed. Appeals are disposed of accordingly without any order as to costs. Ashoke Kumar Dasadhikari, J: I agree.