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2016 SCC OnLine Mad 33745 : (2017) 173 AIC 417 : (2017) 1 CTC 56
In the High Court of Madras
(BEFORE T. RAVINDRAN, J.)
V. Chandrasekaran and Others
and
Venkatanaicker Trust and Others
S.A. No. 220 of 2011 and M.P. Nos. 1 of 2011 and 1 of 2015
Decided on November 29, 2016
Page: 418
The Judgment of the Court was delivered by
T. RAVINDRAN, J.:— The appellants 2 to 4 before the first Appellate Court have in
this Second Appeal impugned the judgment and decree dated 2.9.2010 made in
[Link]. 71 of 2009 on the file of the Principal Subordinate Judge, Erode, confirming
the judgment and decree dated 14.9.2009 made in O.S. No. 316 of 1997 on the file of
the Second Additional District Munsif Court, Erode.
2. Suit for possession and damages. Shorn of unnecessary details, the case of the
plaintiff is as follows:
The plaintiffs Trust is represented by its Manager E.V.K.S. Elangovan. The suit
property belonged to the plaintiff and that the same was leased out to the
defendant. Inasmuch as the defendant was not regular in the payment of rent and
also as the property is required by the plaintiff for putting up shopping complex to
augment its income, the plaintiff by notice dated 13.6.1997 terminated the tenency
of the defendant and despite the same the defendant did not vacate the suit
property and hand over the possession, instead sent a reply containing false
allegations. Hence, the suit.
3. The case of the defendant in brief is as follows:
The defendant has taken various pleas to non suit the plaintiff. As far as the
pleas required for the purpose of disposing of the Second Appeal is that E.V.K.S.
Elangovan has to prove that he is the Manager of the Trust and competent to file
the present suit on behalf of the Trust and the Trust has not produced any
resolution regarding the decision of the construction of the suit building or to file
the present legal action and hence prayed for the dismissal of the suit.
4. In support of the plaintiffs case, P.W. 1 has been examined. Ex. A1 to A9 were
marked. On the side of the defendants, D.W. 1 has been examined. Ex. B1 was
marked. On a consideration of the oral and documentary evidence adduced by the
respective parties, the Trial Court was pleased to decree the suit as prayed for.
5. The first Appeal was preferred by the defendant and pending Appeal the
defendant having died, his legal representatives have been brought on record as the
appellants. The first Appellate Court also on a consideration of the oral and
documentary evidence adduced by the parties was pleased to confirm the judgment
and decree of the Trial Court. Challenging the same, the present Second appeal has
been laid.
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6. The Second Appeal was admitted and the following substantial questions of law
are formulated for consideration in this Second Appeal:
(a) Whether the termination of tenancy by the issuance of Ex. B1, notice by the
Manager is not in accordance with the provisions of the Indian Trust Act and
whether the said notice took equity as ineffective?
Page: 419
(b) Whether the suit filed by the Manager of the Trust and not by the Trustees
joined together, is not maintainable?
7. Inasmuch as the questions of law canvassed in this Second Appeal do not
require the necessity of explaining the case of the parties in detail, it is suffice to
confine the facts at issue between the parties, as regards the substantial questions of
law formulated for consideration in this Appeal.
8. The suit has been laid by the plaintiff, Venkatanaicker Trust, represented by its
Manager, Thiru. E.V.K.S. Elangovan, B.A., The lease of the defendant has been
terminated by the plaintiff under the notice dated 13.6.1997, which has been marked
as Ex. Al. Repudiating the claim of the plaintiff under Ex. Al. the defendant has sent a
reply.
9. The main point that is urged by the learned Senior Counsel appearing for the
appellant is that the suit as framed by the plaintiff is not maintainable and on that
score alone, the suit is liable to be dismissed. Though that the frame of the suit is not
maintainable had been canvased before the Courts below also, however, the Courts
below did not entertain the same. It is argued by the learned Senior Counsel for the
appellant that the Courts below have erred in not following the principles of law
adumbrated in the decisions placed before them on behalf of the appellants on the
said issue and therefore prays that the findings of the Courts below on the frame of
the suit are liable to be set aside.
10. As seen earlier, the Trust has laid the suit through its Manager. It is therefore
obvious that the suit has not been laid by the Trust, represented by its Trustees. That
the Manager is empowered to lay the suit on behalf of the Trust has not been
established by the plaintiff, principally, by marking the Trust deed. No reason has
been given by the plaintiff for not marking the Trust deed to evidence that the Trust
deed authorized the Manager to institute the suit on behalf of the Trust. Therefore,
now we are left to decide the issue in the absence of the Trust, Deed. It could
therefore be seen that the Trust has not placed any record before the Courts below to
establish that it has the authority to file the suit through its Manager.
11. Now according to the learned Senior Counsel appearing for the appellant, the
Trust if it decides to lay the suit for recovery of possession from the tenant or for the
matter, if it decides to terminate the tenancy of the tenant in respect of its property,
the lease in respect of the same should have been determined only by the Trustees of
the Trust and not by its Manager. It is also emphasized that even a single Trustee on
his own could not lay the suit unless the Trust Deed authorises him to do so on behalf
of the Trust.
12. Further, it is stressed that all the Trustees should be before the Court to decide
the lis between the Trust and the opponents and in the absence of the Trustees before
the Courts, the suit laid by the Trust through its Manager is not maintainable. In this
connection, the learned Senior Counsel appearing for the appellant lays stress on the
decisions in Atmaram v. Gulamhusein;1 and Duli Ckand v. M.P.T.C. Charitable Trust.2
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In the decision in Atmaram v. Gulamhusein,3 two questions were referred to the
Hon'ble Full Bench for reference. One is, whether some only out of several co-trustees
can effectively determine a tenancy by giving notice to quit and the other is, whether
a suit to evict a tenant can be filed by one or more co-trustees without joining other co
-trustees in the suit.
Page: 420
13. As regards the question No. 2, the conclusion/finding of the Hon'ble Full Bench
is as follows:
“11. We are, therefore, of the view that unless the instrument of trust otherwise
provides, all co-trustees must join in filing a suit to recover possession of the
property from the tenant after determination of the lease. No one single co-trustee,
even he be a managing trustee unanimously chosen by the co-trustees, can
maintain such a suit against the tenant without joining the other co-trustees. All
cotrustees must be joined in the suit and if any one or more of them are unwilling
to be joined in the suit as plaintiffs or for some reason or the other it is not possible
to join them as plaintiffs, they must be impleaded as defendants so that all co-
trustees are before the Court.”
14. For arriving at the above conclusion the Hon'ble Full Bench also placed reliance
and derived support from the following passage from Lewin on Trusts, (Sixteenth
Edition), page 181:
“In the case of co-trustees of a private trust, the office is a joint one. Where the
administration of the trust is vested in cotrustees, they all form as it were but one
collective trustee and therefore must execute the duties of the office in their joint
capacity. Sometimes, one of several trustees is spoken of as the acting trustees,
but the Court knows of no such distinction : all who accept the office are in the eyes
of the law acting trustees. If any one refuses or is incapable to join, is it not
competent for the others to proceed without him, and, if for any reason they are
unable to appoint a new trustee in his place under section 36(1) of the Act, the
administration of the trust must devolve upon the Court. However, the act of one
trustee done with the sanction and approval of a co-trustee may be regarded as the
act to the both, though such action or approval must be strictly proved”.
15. In addition to that as to whether a trustee cannot delegate any of the duties,
functions and powers of his office to his co-trustees or to any one else, as that would
be contrary to his obligation under the trust, holding that the position of law on the
above aspect is well settled, the Hon'ble Full Bench relied upon the decision of the
Apex Court in Abdul Kayum v. Alighai,1 which is very important and material in
determining the controversy between the parties before this Second Appeal also and
the same is reproduced as following:
“…………… trustees cannot transfer their duties, functions and powers to some
other body of men and create them trustees in their own place unless this is clearly
permitted by the trust deed, or agreed to by the entire body of beneficiaries. A
person who is appointed a trustee is not bound to accept the trust; but having once
entered upon the trust he cannot renounce the duties and liabilities expect with the
permission of the Court or with the consent of the beneficiaries or by the authority
of the trust deed itself. Nor can a trustee delegate his office or any of his functions
except in some specified cases. The rules against renunciation of the trust by
trustee and against delegation of his function by a trustee are embodied in respect
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of trusts to which the Indian Trust Act applies, in sections 46 and 47 of that
Act…………It is true that section 1 of the Indian Trusts Act makes provisions of the
Act inapplicable to public or private religious or charitable endowments; and so,
these sections may not in terms apply to the trust now in question. These sections
however embody nothing more or less than the principles which have been applied
to all trusts in all counties. The principle of the rule against delegation with which
we
Page: 421
are concerned in the present case, is clear : a fiduciary relationship having been
created, it is against by the interests of society in general that such relationship
should be allowed to be terminated unilaterally. That is why the law does not permit
delegation by a trustee of his functions, except in cases of necessity or with the
consent of the beneficiary or the authority of the trust deed itself : apart from the
delegation in the regular course of business, that is, all such functions which a prudent
man of business would ordinarily delegate in connection with his own affairs”.
16. As regards the validity of the termination of quit notice by one co- trustee is
valid or whether it is necessary that all the co- trustees must join in giving such
notice, the Hon'ble Full Bench has come to the following conclusion:
“It is, therefore, clear that one co-trustee cannot given notice to quit determining
the tenancy. The decision to determine the tenancy by giving notice to quit must be
taken by all co-trustees unless, of course, the instrument of trust otherwise
provides, or the beneficiaries being competent to contract consent, or in any
particular case it is established that on the peculiar facts obtaining in that case, the
delegation of the power to determine the tenancy was necessary. But when he says
that the tenancy must be determined by all co-trustees, we must make it clear that
what we mean is that the decision to terminate the tenancy must be taken by all
the co-trustees. The formal act of the giving notice to quit pursuant to the decision
taken all by the co-trustees may be performed by one co-trustee on behalf of the
rest. The notice to quit given in such a case would be a notice given with the
sanction and approval of all the co-trustees and would be clearly a notice given by
all co-trustees.”
17. For arriving at the above conclusion, the Hon'ble Full Bench has also placed
reliance upon the decision of the our High Court in Vedakannu v. Annadana Chatram.1
That the Hon'ble Full Bench has also considered the effect of section 36 of the Indian
Trust Act can also be seen from the passage, Lewin on Trusts, which has been
extracted supra.
18. As rightly pointed out by the learned Senior Counsel appearing for the
appellants, the Delhi High Court has also categorically held that the suit filed by one of
the co-trustees even on authorisation by resolution passed by other co-trustees is not
maintainable and the above aspect of the matter has been dealt by the Delhi High
Court in Duli Chand v. Mahabir Pershad Trilok Chand Charitable Trust, Delhi,2 in the
following manner:
“A suit by one of the co-trustees on the basis of a resolution passed unanimously
by all other co-trustees authorising that trustee to file the suit would not be
maintainable. The position of trustees is exactly the same as of any other set of co-
owners who must necessarily join together to file a suit.
It is possible for some of the trustees to authorise the others to file a suit. But
this could only be done by the execution of a power of attorney. It cannot be done
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by a resolution.
If “A”, “B” and “C” are the owners of a property, they have to bring a joint suit
for possession. They are all necessary parties to the suit. They cannot by resolution
allow some of the other co-owners to file the suit. In such a suit, all the owners
must be joined as parties as either plaintiffs or as defendants. Usually, the co-
owners who are not joined in the suit are joined as proforma defendants. But, it is
not
Page: 422
possible for some of the owners to file a suit without joining others. As trustees are
owners of the property, the same principle applies. They all have to be joined as
parties to the suit, but they can execute the powers of attorney allowing themselves to
be represented by some other co-trustees.
A trust is not a legal entity as such. In fact, a Trust may be defined as an
obligation imposed on the ostensible owner of property to use the same for a
particular object for the benefit of a named beneficiary or a charity. Thus all
Trustees in law are owners of the property but they are obliged to use the same in a
particular manner. If a number of trustees exist, they are joint owners of the
property. It is not like a Corporation which has a legal existence of its own and
therefore can appoint an agent. A Trust is not in this sense a legal entity. It is the
trustees who are the legal entities.”
19. The Delhi High Court has also taken into consideration the decision of the
Hon'ble Full Bench of the Gujarat High Court in Atmaram v. Gulamhusein,1 adverted to
earlier and the other decisions.
20. In the light of the above two decisions, it could be seen that the Trust being not
a legal entity and all the Trustees in law being the owners of the property and if a
number of Trustees exist, they being the joint owners of the property and a Trust not
in the normal course a legal entity and only the Trustees being the legal entities, it
could be seen that as held by the above said Courts, a suit by one of the Trustees on
behalf of the Trust, in the absence of any stipulation in the Trust Deed providing
otherwise, it could be seen that such a suit would not be legally maintainable and all
the Co-Trustees must join in filing the suit to recover possession of the property from
the tenant, after the termination of the lease.
21. I am of the considered view that the Courts below have failed to follow the
principles of law adumbrated in the above decisions in the right perspective and it
could be seen that the when the frame of the suit itself is not maintainable, the
plaintiff would not be entitle to seek and obtain the reliefs sought for in the lease.
22. The learned Counsel for the plaintiff-contended that the defendants in the other
incidental proceedings has laid the proceedings against the plaintiff Trust, rep. by its
Manager, and the defendant having taken the initiative for seeking various reliefs by
laying the proceedings against the Trust as such, now the defendant cannot turn
around and contend that the suit filed by the Trust, rep. by its Manager, against him is
not maintainable.
23. Countering the above contention, it is argued by the learned Senior Counsel for
the appellants that when the frame of the suit itself is not maintainable as per law, in
the light of the above said decisions, the mere fact that the defendant has laid certain
proceedings in the suit against the Trust, rep. by its Manager, by itself would not
render the suit laid by the plaintiff legally maintainable and further it is contended
that there cannot be any estoppel against the statute.
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24. Such being the position, the argument put forth by the learned Counsel for the
plaintiff cannot be accepted. In so far as this case is concerned, the suit has not been
laid by the Trustees. It has been laid by the Manager representing the Trust. To show
that the Manager is empowered to lay the suit on behalf of the Trust, no material is
forth coming. The Trust deed as seen earlier has not been produced. No reason has
been adduced for the same. Further, it has also not been established that the Manager
is empowered to lay the suit on behalf of the Trustees as per the
Page: 423
provisions of the Indian Trust Act, 1882. It could thus be seen that the plaintiff would
not be entitled to seek any reliefs against the defendant for the reasons that the notice
of termination of the tenancy has not been issued by the Trustees as contemplated
under law and further the suit for possession has also not been laid by the Trustees as
required under law. On the failure of the plaintiff to establish that the instrument of
trust otherwise provides, following the above said decisions relied upon by the learned
Senior Counsel for the appellants, I hold that the suit filed by the Manager of the Trust
and not by all the Trustees joining together is not maintainable. I further hold that the
termination of notice issued by the Manager is not in accordance with the Indian Trust
Act and invalid. Therefore, the substantial questions of law framed in this Second
Appeal are answered against the respondent/plaintiff and in favour of the appellants.
25. The learned Counsel for the respondents relied on the decision in Hamsa Patel
v. S. Balakrishnan.1 The above said decision, as rightly argued by the learned Senior
Counsel for the appellants, would not be applicable to decide the substantial questions
of law formulated for consideration in this Second Appeal.
26. The other decisions relied on by the learned Counsel for the respondents
reported in Vasant Nature Cure Hospital and Pratibha Maternity Hospital Trust v. Ukaji
Kamaji,2 also could be seen not applicable to the facts and circumstances of the case
on hand. In this case, unlike the decision relied on, the trust has laid the suit, rep. by
its Manager. No material placed to show that the Manger has been authorized to lay
the suit. Further in this case covered in the above decision, all the trustees were
subsequently joined as plaintiffs. However, in our case, the suit has not been laid by
the trust, rep. by its trustee/trustees. At the end, the judgment and decree of the
Courts below are set aside and the suit filed by the plaintiff is dismissed. Accordingly,
the Second Appeal is allowed. No costs. Consequently, connected miscellaneous
petitions are closed.
27. Second Appeal Allowed.
———
1. AIR 1973 GuJ 113.
2. AIR 1984 Del 145.
3. AIR 1973 GuJ 113.
1. AIR 1963 SC 309.
1. AIR 1938 Mad 982.
2. AIR 1984 Del 144.
1. AIR 1973 Guj 113.
1.
(1997) 1 CTC 367.
2. AIR 2013 Guj 58.
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