Gujarat High Court
Shree Sanand Vijay Ansur Juda And Anr. vs Heirs Of Fakir Mahomed Sardarbhai And ... on 15 July, 1998
Equivalent citations: (2000)4GLR2962, 1998 A I H C 4291, (2000) 4 GUJ LR 2962, (1998) 2 GUJ LH 583, (1999) 1 RENCJ 392, (1999) 1 RENCR 79
Author: D.C. Srivastava
Bench: D.C. Srivastava
JUDGMENT D.C. Srivastava, J.
1. This is landlord's revision under Section 29(2) of the Bombay Rent Act.
2. Brief facts giving rise to this revision are that the plaintiff is registered trust having managing trustees. One Shivben was the owner of the suit premises. She executed registered Gift Deed on 11-8-1972 creating a trust in favour of the plaintiff. The gift was accepted. Deceased Fakirmohmed was the tenant in the disputed premises on a monthly rent of Rs. 8/-. Rent was paid till 4-4-1973 to the previous owner. Since 5-4-1973 the rent was not paid to the plaintiff in spite of repeated demand. Consequently, notice dated 18-3-1977 demanding rent amounting to Rs. 376/- was served and tenancy was determined. More than six months the rent remained due which was not paid after service of notice of demand nor any reply was given. Accordingly, the suit for eviction was filed and for arrears of rent and mesne profit.
3. The suit was resisted on the ground that there was no privity of contract between the plaintiff trust and the defendant and the plaintiff was not landlord of the defendant. Validity of Gift Deed was also challenged. It was also pleaded that the rent was paid to the previous owner and after her death to his heirs and no rent is due from him. It was also pleaded that Rs. 3000/- were given to the previous owner which was agreed to be adjusted towards rent. Notice was also said to be illegal.
4. The trial Court dismissed the suit. An appeal was preferred. The appellate Court found that no doubt the trust was a registered trust and owner of the suit property, but since it was not established by the plaintiff that the plaint was signed by all the trustees and notice of demand and eviction was also given on behalf of all the trustees, the plaintiff trust was not entitled to decree for eviction. Accordingly, the Appeal was also dismissed. Hence this revision.
5. Learned Counsel for the revisionist contended that the findings of the lower appellate Court that the plaint was not signed by all the trustees is incorrect so also the finding that the notice was not given on behalf of all the trustees. His contention has been that the trustees had been changing from time to time and since there was no defence raised in the written statement that the plaint was not signed by all the trustees and the notice was also not given on behalf of all the trustees the plaintiff was prevented from adducing proper evidence on the point. It was further contended that no cross-examination was directed to the plaintiff's witness on this points.
6. As against this learned Counsel for the respondent, placing reliance upon a Full Bench decision of this Court in Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyuddin, reported in 1972 GLR 328 (FB) contended that in a suit like this where the trust filed a suit for recovery of possession of the disputed premises from the tenant all the managing trustees should have signed the plaint and the notice should have been given on their behalf and in case the notice was given by them it should have been signed by all of them. On the strength of this Full Bench pronouncement he contended that the decree against the respondent for eviction could not be passed and as such the revision deserve to be dismissed.
7. After giving my thoughtful consideration to the submission raised by the two sides and also to the law laid down by the Full Bench in the aforesaid Atmaram's case (supra) it seems that the lower appellate Court has given findings on mere presumptions and surmises and also to some extent due to failure of the trust to clarify as to who were the trustees on the date the notice of demand and eviction was given and also on the date when the suit was filed.
8. The Full Bench pronouncement of this Court in Atmaram's case (supra) essentially laid down that in case of a public charitable trust or private trust a trustee cannot delegate any of his duties, functions and powers to the cotrustee or to any other person unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in regular course of business. These are the only four exceptional cases in which delegation is permissible. The Full Bench further proceeded to hold that even by unanimous resolution authorizing one of themselves to act as managing trustee for executing the duties, functions and powers relating to the trust every one of them must join in the execution of such duties, functions and powers. According to the Full Bench granting of lease is a matter which cannot be delegated by a trustee to any other trustee in the regular course of business. These are the only four exceptional cases according to the Full Bench decision in which delegation is permissible. The Full Bench further proceeded to hold that even by unanimous resolution authorising one trustee to act as managing trustee for executing the duties, functions and powers relating to the trust every one must join to the execution of such duty, functions and powers. According to the Full Bench granting of lease is a mater which cannot be delegated by a trustee to another trustee. Likewise, termination of lease is also such matter which cannot he delegated by trustees to one of such trustee. It is thus clear that one co-trustee cannot give notice to quit, determining the tenancy. A decision to terminate the tenancy must be taken by all the trustees. The formal act of giving notice to quit pursuant to the decision taken by all the co-trustees may be performed by one co-trustee on behalf of the rest. In such a case the notice would be a notice given with the sanction and approval of all the co-trustees and would be clearly a notice given by all the co-trustees.
9. Regarding signature of the trustees of the trust the Full Bench laid down 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 co-trustees must be joined in the suit and if any one or more of them are unwilling to be joined in the suit as plaintiffs of 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.
10. In view of the aforesaid guidelines it was the duty of the lower appellate Court to ascertain who were the trustee on the date of notice and also on the date when the suit was filed. This was not done. Blame was fastened on the plaintiff. No doubt, it was the duty of the plaintiff to establish as to who were the trustees on the date of the suit as well as on the date of the notice. But this duty could not be effectively discharged because there was no contest in the written statement that the notice was not given on behalf of all the trustees and the plaint was not signed by all the trustees. The original record shows that plaint was signed by seven trustees. It is so mentioned by the lower appellate Court in its judgment also. The notice was read over before me. It was not given by trustees, but by Advocate under instructions from at least nine trustees. Learned Counsel for the revisionist rightly contended that from time, to time the trustees have been changing and as such this discrepancy arose. This contention is further supported from the judgment of the lower appellate Court where out of seven trustees atleast five were deleted during the pendency of Appeal. Since no cross-examination was directed by the defendant to the plaintiff's witness as to who were trustees on the date of the suit and the notice, the plaintiff proceeded on the presumption that it was not disputed by the defendant that the plaint was not signed by all the trustees and the notice was not given on behalf of all the trustees. Thus, in view of this confusion it is just and expedient that an opportunity should be given to the revisionist to file additional evidence in Appeal in the nature of documentary evidence to establish who were the actual trustees on the date of notice and who were actual trustees on the date when the suit was filed. For this exercise, the case has to the remanded to the lower appellate Court for affording opportunity to the revisionist to adduce additional evidence as mentioned above. As a consequence thereof, no option is left but to set aside the judgment and decree of the lower appellate Court and to remand the Appeal to the lower appellate Court for fresh disposal after affording opportunity to the revisionist to adduce additional evidence on the only point indicated above. The respondent shall be permitted to adduce evidence in rebuttal on the aforesaid point and on no other point additional evidence will be permitted to the parties.
11. It may also be mentioned that the learned Counsel for the respondent pointed out that rent was deposited by the respondent in the trial Court. He wanted to show xerox copy of receipts showing deposit of rent in the trial Court. However, this exercise is not legally permissible. The revisional Court cannot base its judgment on the xerox copy of the receipts which are on the file of the learned Counsel for the respondent. The lower appellate Court in its judgment has observed that the rent was not paid or deposited by the tenant in the trial Court on the first date of hearing and regularly thereafter. It further observed that the defendant had not deposited any rent pending the trial and pending the Appeal. If further observed that the tenant deposited some amount of rent only after the matter was remanded to the trial Court. If, however, the receipts are on the record of the trial Court the Appellate Court shall examine the same and come to the conclusion whether those deposits were made on the first day of hearing or not.
12. The lower appellate Court has observed that if the tenant is in arrears of rent for more than six months on the date of notice even on the date of first hearing and even during pendency of the Appeal the tenant would not be entitled to claim the protection as provided under Section 12(3)(b) of the Act.
13. For considering whether such protection is available or not, the lower appellate Court has to strictly construe the provisions of Section 12(3)(b) of the Act which obliges the tenant to pay to deposit the rent in Court on the first date of hearing of the suit or on or before such other date as the Court may fix and continues to pay or tender in Court such rent till the suit is finally decided and pay the cost of the suit as directed by the Court. The lower Appellate Court shall therefore see from the record whether the respondent has deposited arrears of rent on the first date of hearing of the suit and continued to deposit the same regularly in Court till the suit was decided and also paid the cost of the suit awarded by the trial Court and then finding will be recorded by the lower appellate Court whether statutory protection under Section 12(3)(b) of the Act is available to the tenant-respondent or not.
The lower appellate Court after considering these points shall decide the Appeal in accordance with law keeping in view the observations made in the body of the judgment.
14. In the result, the revision succeeds and is allowed. The judgment and decree of the lower appellate Court is set aside and the Appeal is remanded to the lower appellate Court for fresh disposal of Appeal in accordance with law keeping in view the observations made in the body of the Judgment. The parties shall bear their own cost of this revision.