Calcutta High Court (Appellete Side)
Kamani (Deceased) & Anr vs Dipak Himmat Lal Seth & Ors on 14 January, 2020
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
[
S. A. 265 of 2002
+
CAN 7104 of 2013
Giridharilal Hansraj Kamani Trust represented by Bhupatrai
Kamani (deceased) & anr.
-Vs-
Dipak Himmat Lal Seth & Ors.
With
S.A. 439 of 1999
+
CAN 7103 of 2013
Giridharilal Hansraj Kamani Trust represented by Bhupatrai
Kamani (deceased) & anr.
-Vs-
Mrs. Bhamben Amritlal Seth & Ors.
For the Appellant : Mr.Aniruddha Chatterjee, Adv.
Mr. Shib Sankar Das, Adv.
For the Respondents
in S.A. 265 of 2002 : Mr. Shiba Prasad Mukherjee, Adv.
Mr. Supriyo Singh, Adv.
For the Respondents
in S.A. 439 of 1999 : Mr. Anirban Majumder, Adv.
Heard on : 13.01.2020
Judgment on : 14.01.2020
Bibek Chaudhuri, J.
One Girdharlal Hansraj Kamani was the original owner of premises No.3A and 3B Allenby Road within P.S. Bhowanipore. The said Giridharilal created a trust in respect of the said premises and handed over management of the said premises in the hands of the trustees.
In the said trust deed, it was specifically stipulated that the second floor flat would be kept apart by the trustees exclusively for the guests and family members of Kamani's who live outside Kolkata for their stay when they would visit Kolkata.
The second floor flat is under possession of Rasiklal Seth, respondent herein, who was permitted to stay therein as a licensee without any license fee by the said Girdharlal Hansraj Kamani.
Girdharlal Hansraj Kamani Trust (hereafter the said trust) duly represented by Bhupatrai Kamani and Vinod Rai Kamani instituted a suit being Title Suit No.54 of 1987 in the 4th Court of the learned Munsiff at Alipore against the respondent for eviction from the suit flat on revocation of license.
Similarly, the said trust filed Title Suit No.55 of 1987 against the respondent in the trial Court praying for eviction of the defendant/respondent on revocation of license. In the aforesaid suit, besides Bhupatrai and Vinod Rai, one Dalsukh Patel also represented the said Trust.
Title Suit No.54 of 1987 was dismissed on contest mainly on the ground that the suit was not maintainable as the plaintiffs failed to prove that they were trustees in respect of the said trust and has the authority to take action against the respondent.
Title Suit No.55 of 1987 was, however, decreed on contest against the respondent.
The present respondent filed an appeal being Title Appeal No.439 of 1993 against the judgment and decree passed in Title Suit No.55 of 1987. The said appeal was allowed on contest.
The said trust, on the other hand, filed an appeal against the judgment and decree of dismissal of Title Suit No.54 of 1987 which was registered as Title Appeal No.24 of 1997. The said appeal was dismissed on contest.
The said trust through their representatives came to prefer two appeals before this court against the judgment and decree of dismissal passed in Title Appeal Nos.439 of 1993 and 24 of 1997, being registered as SAT 498 of 1995 and SAT No.226 of 2002.
SAT No.498 of 1995 was admitted for hearing by the Division Bench of this Court on 28th June, 1999 and was renumbered as S.A.439 of 1999. While admitting the appeal, the Division Bench was pleased to frame the following substantial question of law:-
"Whether the learned Court of appeal below erred in reversing the judgment and decree passed by the learned trial Judge in holding that the suit filed by the Plaintiff Trust was not maintainable and in any event, whether the suit was maintainable at the instance of the Trustee de son trust?"
Similarly by an order dated 13th January, 2003, SAT 226 of 2002 was admitted for hearing on the ground that on similar substantial question of law, S.A.439 of 1999 was admitted and the appeal being S.A. 265 of 2002 was directed to be heard on the same substantial question of law which was framed in S.A.439 of 1999.
However, it is pertinent to mention here that both Title Suit No.54 of 1987 and Title Appeal No.24 of 1997 were dismissed on contest. Therefore, S.A.265 of 2002 has been filed against judgment of affirmation passed by the learned first appellate Court. Therefore, in my considered view, the substantial question of law involved in S.A.265 of 2002 is required to be recast which I am authorized to do under the provision of sub-section(5) of Section 104 of the Code of Civil Procedure.
Accordingly, substantial question of law in S.A.265 of 2002 is formulated as hereunder :-
"Whether both the Courts below substantially erred in holding that the suit filed by the plaintiff Trust was not maintainable and in any event, whether the suit was maintainable at the instance of Trustee de son trust?"
Title Suit No.54 of 1987 was dismissed primarily on the ground of maintainability. The learned trial Court relying upon the decisions reported in AIR 1973 Guj 113, AIR 1944 Lah 110 held that the trustees cannot resolve and take decision directing one or some of the trustees to institute a suit as the plaintiffs had no independent title over the suit property. It was further observed by the learned trial judge that the suit property being premises No.3A and 3B Allenby Road was not included in the deed of trust. Moreover, in the deed of trust (Exhibit 4), six persons were appointed as trustees. But the names of the plaintiffs did not appear in the said deed of trust.
Title Appeal No.24 of 1997 was dismissed by the first Court of appeal also on the ground of maintainability holding, inter alia, that the plaintiffs/appellants had no locus standi to institute the suit.
Schedule of the suit property in Title Suit No.55 of 1987 is "All that the second floor flat forming portion of premises No.3A & 3B Allenby Road, P.S. Bhowanipore, Kolkata-20 "wherefrom the plaintiffs prayed for eviction of the original defendant, since deceased on revocation of license.
The suit was decreed on contest by the learned trial judge holding, inter alia, the defendant was a licensee under the trust created by G.H.Kamani. The plaintiff No.1 was authorized to institute the suit representing the trust. The defendant failed to prove that he was maintained in the family of G.H.Kamani as a family member and he had no right to occupy the suit premises.
The original defendant assailed the said judgment and decree passed in Title Suit No.55 of 1987 by preferring Title Appeal No.439 of 1993. Said appeal was allowed setting aside the judgment and decree passed in Title Suit No.55 of 1987 mainly on the ground that the plaintiffs were not the original trustees appointed by the settler. The plaintiffs neither pleaded nor proved as to how and under what circumstances successive trustees were appointed. Without such pleading and proof, plaintiffs' locus to institute the suit remains questionable. The lower appellate court also held that suit filed by one of the trustees is not maintainable.
Mr. Aniruddha Chatterjee, learned Advocate for the appellants in both the appeals submits at the outset by referring to the statement made in Paragraph 6 of the written statement that the original defendant, namely Rasiklal Sheth, since deceased took two contradictory pleas in order to establish his right of occupation of the suit property. Firstly, it was specifically pleaded by the defendant that premises No.3A and B, Allenby Road within P.S. Bhowanipore was purchased from the joint funds of G.H.Kamani and the father of the defendant. Since purchase, the defendant was in possession of the suit property and after the death of the original defendant, his legal heirs and representatives are in possession of the same. Alternatively, it was pleaded that the defendant is in exclusive possession of the suit flat as of right for more than 12 years and accordingly, he acquired good indefeasible right over the suit flat by way of adverse possession.
Referring to such pleadings it is submitted by Mr. Chatterjee that as soon as the defendant/respondents asserted their rights over the suit property by adverse possession, they admitted ownership of G.H.Kamani over the suit property.
Mr. Chatterjee next submits referring to the plaint of Title Suit No.54 of 1987 that the plaintiffs clearly pleaded that the original owner G.H.Kamani created the Trust in respect of the said property being premises No.3A and B, Allenby Road making therein various provisions for management of the Trust Estate. It was provided in the said trust that the second floor flat which is under occupation of the defendants would be kept apart by the trustees as Guest House of the Kamani family members. The creation of trust in respect of the suit property was not denied or disputed by the respondents in their pleading. The legality of the said trust deed was also not challenged by them. Therefore, the respondents had the onus to prove their right to occupy and stay in the suit premises. It is pointed out by Mr.Chatterjee that the learned First Court of Appeal in Title Appeal No.24 of 1997 instituted by the appellants challenging the judgment and decree of dismissal of Title Suit No.54 of 1987 as well as in Title Appeal No.439 of 1993 filed by the present respondents against the judgment and decree passed in Title Suit No.55 of 1987 held that the suit was not maintainable on the ground that all the trustees in respect of the trust properties did not file the suit against the defendant. It is rightly pointed out by Mr.Chatterjee that both the Courts below in both the suits and appeals concurrently held that the original defendant was a licensee in respect of the suit property mentioned in the schedule of the plaints of the said suits. In order to substantiate his contention, Mr. Chatterjee refers to the Trust Deed which was marked Exbt.4 during trial of the suit. It is ascertained on perusal of the said Trust Deed that it was executed and registered by Girdharlal Hansraj Kamani, Settler on 21st May, 1960. In the Deed of Trust six persons were named as trustees. The recital of the said Trust clearly declares that the Settler created the said trust for public religious or/charitable purposes. The trust property was declared to be managed by the trustees individually as well as jointly by accepting the office or offices of trustee or trustees in respect thereof and trustees individually as well as collectively agreed to accept the office of the trustee or trustees. It was also stipulated in the said Deed of Trust that the member of the trustees shall not be more than eight and not less than three and the trustees hereby appointed would be entitled to nominate their respective successors to the office of the Trust. The trustees for the purpose of effecting the objects and administration of the trust shall always mean all the trustees or a majority of the trustees or a Committee of the trustees as the trustees either unanimously or by majority may appoint and empower or delegate any or all of the powers, duties and rights of the trustees. It is pertinent to record here that in the trust deed the suit property involved in both the suits was declared to be used as guest house for Kamani family.
Mr. Chatterjee, learned counsel for the appellants submits that the First Courts of Appeal were absolutely wrong in holding that a suit for eviction of a licensee from a trust property is not maintainable by one or some of the trustees. In support of his contention, Mr. Chatterjee refers to a decision of this Court in the case of Indian Craft Village Trust and anr. Vs. Calcutta Municipal Corporation and Ors. reported in (2007) 4 CHN 327. Relying on the aforesaid report, it is submitted by Mr. Chatterjee that in case of private trust, individual trustee cannot maintain any suit on behalf of the trust. The said principle has no application in case of a Public Charitable Trust, inasmuch as the provisions of the Trust Act do not apply to Public Charitable Trust in view of Section 1 of the Trust Act.
This Court in Indian Craft Village (supra) held that one of the trustees alone can continue the proceeding and continuation of such proceeding by one of the trustees or some of the trustees representing the trust cannot make a proceeding not maintainable on the ground of non-joinder of all the trustees.
It is further urged by Mr. Chatterjee that both the Lower Appellate Courts in both the appeals wrongly held further that as Section 48 of the Trust Act was not complied with, the suits were bad for defect of parties. In this connection, he refers to Order XXXI Rule 1 of the Code of Civil Procedure which deals with representation of beneficiaries in suits concerning property vested in trustees. According to Mr. Chatterjee, Order XXXI deals with the suits by or against trustees, executors and administrators. Rule 1 of Order XXXI prescribes that in all suits concerning property vested in a trustee executor or administrator, where the contention is between the persons interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested and it shall not ordinarily be necessary to make the beneficiaries parties to the suit, unless the Court thinks otherwise. In respect of a suit between trustees inter se , Rule 2 provides that where there are several trustees, executors or administrators, all of them shall have to be made parties. Under Rule 3 husband of a married trustee shall not pay party a suit unless the Court directs. Thus, Order XXXI does not apply in respect of a suit between a trustee and a licensee whose licence was revoked by a notice and after revocation of licence, his position was reduced to a rank trespasser. Under such circumstances, the respondents cannot challenge the authority of the plaintiffs in respect of institution of the suit.
Mr. Chatterjee next submits that the status of the respondents in respect of the suit property was settled by the First Appellate Courts. Both the Courts below concurrently held that the original defendant was a licensee in respect of the suit property. The respondents did not challenge the said findings by preferring any appeal or cross-objection before this Court. Moreover, at the stage of second appeal, the respondents are not entitled to avail the benefit of Order XXXI Rule 22 or Order XXXI Rule 33 of the Code of Civil Procedure.
Next branch of argument of Mr. Chatterjee is that under Order VIII Rule 5 of the Code of Civil Procedure every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted........................ It is thus a settled position of law that if an allegation made in the plaint is not specifically denied in written statement, it is treated as admitted. Furthermore, if a fact is clearly asserted in plaint and supported by witnesses in cross-examination, and there is no denial of the said fact nor non-existing of such fact put to the witnesses in cross-examination, such fact must be held to be proved. In support of his contention, Mr. Chatterjee refers to a decision of the Hon'ble Supreme Court in the case of Standard Chartered Bank Vs. Andhra Bank Financial Services Ltd & Ors reported in (2016)1 SCC 207. On this score he refers to another decision of the Hon'ble Supreme Court in Muddasani Venkata Narasaiah (Dead) through Legal Representative Vs. Muddasani Sarojana reported in 2016(12) SCC 288. Coming to the instant case, it is submitted by Mr. Chatterjee that the original defendant in his written statement did not deny that the plaintiffs were the trustees in respect of the suit property. In the absence of such denial, the original defendant and now the present respondent being the heirs of the original defendant cannot challenge the authority of the plaintiffs to file the suits for eviction of a licensee. In this regard, Mr. Chatterjee refers to the relevant portion of cross- examination of P.W.1 where the plaintiff No.2 Bhupatrai Kamani as P.W.1 clearly stated that he became one of the trustees in respect of the said trust property about 12/15 years before his deposition. In view of such cross- examination, on behalf of the defendant, the respondent cannot challenge the authority of the plaintiffs as trustees to institute the suit. Thus, he concludes that both the Lower Appellate Courts in two separate appeals substantially erred in law in holding that the suits instituted by the plaintiffs were not maintainable.
Mr. Siba Prasad Mukherjee, learned Advocate for the respondents on the other hand submits that Title Suit No.54 of 1987 was filed by two persons namely Sri Bhupatrai Kamani and Sri Vinod Rai Kamani claiming themselves to be the representatives of the trust. Title Suit No.55 of 1987, on the other hand was filed by three persons namely Bhupatrai Kamani, Dalsukh Patel and Vinodrai Bhimani being the representatives of the said trust. In the plaint, the plaintiffs did not state their status or under what capacity they filed the said suits. He has also pointed out that notice of revocation of licence (Exbt.1) was given on behalf of the trustees. But it was not stated in the said notice or in the plaints of the aforesaid two suits as to whether the plaintiffs filed the said suits as trustees or not. The defendant/respondent in his written statement stated that the suits were not maintainable in its present form. It is not necessary for the defendant/respondent to deny specifically the status of the plaintiffs and challenge their locus standi to file the suits. It is for the plaintiffs to prove initially their locus to institute the suits against the defendant/respondent. Learned Advocate for the respondents draws my attention to the judgments passed by the Trial Court as well as First Appellate Courts in both the suits and the First Appeals to state that the original defendant raised the question of maintainability of the suit on the point of defect of parties at the very first instance. The plaintiffs failed to produce any document to show that they are the trustees of Girdharlal Hansraj Kamani Trust. No evidence was adduced on behalf of the plaintiffs that they filed the suit in their representation capacity as trustees. Plaintiff No.2 died during the pendency of the suit but he was not substituted by any other trustee under the provisions of Order XXII Rule 10 of the Code of Civil Procedure. In his evidence, P.W.1 clearly admitted that he did not know anything about the trust. If the plaintiffs are not authorized to institute the suits for eviction of the defendant/respondent by all the trustees, the suit in its present form is not maintainable, as there is no evidence on record to the effect that the plaintiffs represent the trust.
Mr. Mukherjee further submits that even assuming that the original defendant was a licensee in respect of the suit property and on revocation of his licence, his position was reduced to that of a trespasser's, he is not entitled to be evicted otherwise then due process of law. He cannot be thrown out of possession without due process because law respects possession.
According to Mr. Mukherjee, the plaintiffs/appellants failed to establish that they were the trustees in respect of the suit property. Moreover, the suits filed by the plaintiffs in representative capacity is not maintainable in view of the principle laid down in Section 47 of the Trust Act which states that a trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger except under the following circumstances, viz. the instrument so provided, or the delegation is in the regular course of business, or the delegation is necessary, or the beneficiary, being competent to contact consent to the delegation. Thus a trustee can appoint a sub-agent, but such appointment must only be as means of carrying out his own duties himself and not for the purpose of delegating those duties by means of such appointment. In support of his contention, Mr. Mukherjee relies upon a decision of the Division Bench of this Court in the case of Sri Sri Gopal Sridhan Mahadeb and Ors. Vs. Sasibhusan Sarkar & Ors. reported in AIR 1933 CAL 109. Coming to the instant case, it is submitted by Mr. Mukherjee that the plaintiffs did not even prove that they were trustees in respect of the suit property and they were entrusted to institute the suit against the defendant/respondent being authorized by the Board of Trustees.
Mr. Mukherjee next refers to a decision of the Full Bench of the Gujarat High Court in Atmaram Rachhodbhai Vs. Gulamhusein Gulam Mohiyaddin and another reported in AIR 1973 Gujarat 113. In the said decision it was held by the Gujarat High Court that one co-trustee cannot give 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 the case the delegation of the power to determine the tenancy was necessary. It was concluded by the Gujarat High Court that unless the instrument of trust otherwise provides, all the trustees must join in filing a suit to recover possession of the property from the tenant after determination of lease. The same principle is applicable in the instant case specially when there is nothing in the trust deed entrusting the plaintiffs to file a suit for eviction against the defendant/respondents. The Board of Trustees also did not take any resolution delegating its power to the plaintiffs to file the suit against the defendant. Therefore, Mr. Mukherjee strongly supports the findings of the First Appellate Courts in both the appeals.
Mr. Mukherjee next refers to a decision of this Court in Numazar Dorab Mehta & Ors. Vs. The Assam Co. Ltd reported in 2004(1) CLJ (Cal.) 283. In the aforesaid report this Court found that there was nothing to show that the instrument of trust provides that some of the co-trustees would be empowered and entitled to maintain an action in law regarding any of the properties of the trust. Rather it is apparent that all the five co-trustees are required to join together for such an action; and presumably for this reason all the five co-trustees instituted the suit together. It is, therefore, clear that regarding the instant trust, some of the co-trustees thereof could not have filed the instant suit. Hence there can be no doubt that on the death of plaintiff No.2, the right to sue thus no longer survive to the surviving plaintiffs who had taken out an application for substitution. The right to sue would have survived to the surviving plaintiffs, if they could have instituted the suit without the deceased plaintiff No.2; they however, could not do so. Under such circumstances, so far as the surviving plaintiffs do not take step for bringing the successor in office of deceased plaintiff No.2 on the records of the suit, they are entitled to proceed with the suit for any purpose except for the purpose of taking steps for substitution or other purposes in terms of provisions contained in Rule XXII of the Code of Civil Procedure. In the instant case, the deed of trust clearly states that in the interest of efficient management of day to day affairs of the trust, the trustees may by such majority appoint any one of them to act as the managing trustee on such remuneration, if any as may by them or the said majority of them be deem fit and proper and to delegate to such managing trustee such of their powers and duties as them or the said majority may deem fit and proper to effectually fulfil and carrying on his duties and responsibilities in the interest of the efficient management of day to day affairs of the trust........................
According to Mr. Mukherjee, the instant suit is not maintainable as the plaintiffs failed to prove that they are the trustees in respect of the suit property or that they were authorised by the Board of Trustees to institute the suit against the respondents.
During the pendency of the appeal, the appellants have filed two applications being CAN 7103 of 2013 in S.A.439 of 1999 and CAN 7104 of 2013 in S.A.265 of 2002.
It was directed that the said two applications would be taken up for consideration and disposal during the pendency of the appeal.
Both the applications were filed by the appellants under Order XXII Rule 10 of the Code of Civil Procedure praying for substituting the present trustee under Order XXII Rule 10 of the Code of Civil Procedure and permitting him to continue with the instant appeal.
It is stated in the application being CAN 7103 of 2013 that the Title Suit No.55 of 1998 was instituted by the then trustee, namely, Bhupat Rai Kamani and Vinodrai Bhimani. By resolution taken by the Board of Trustees on 28th February, 2002, Bhupatrai Kamani retired from the trust and one Vipin Bhimani, Nitin Bhimani and Girish Ch. Desai were appointed as trustees of the said trust.
It is also stated by the appellant that Bhupatrai Kamani died on 14th March, 2009 but on the death of said Bhupatrai Kamani, the appeal does not abate in view of the representation nature of the suit and subsequent resolution of the trustees. Under such circumstances, the petitioner has prayed for substituting his name as the present trustee under Order XXII Rule 10 of the Code of Civil Procedure.
Nitin Bhimani filed a supplementary affidavit in CAN 7103 of 2013 stating inter alia that Mr. Bhupatrai Kamani, Paresh V. Dhimani and Girish Chandra Desai were the trustees of Girdharlal Hansraj Kamani Trust. The said Paresh V. Bhimani tendered his resignation from the Board of Trust by a letter dated 1st June, 2001. Bhupatrai Kamani also tendered his resignation on 1st February, 2002. After their resignations, a board meeting was held on 28th February, 2002 and in the said meeting resignations of Bhupatrai Kamani, Dalsukhlal Patel and Paresh V. Bhimani were accepted. Subsequently, by a deed of declaration made on 11th April, 2003 duly registered before the Registrar of Assurances, Kolkata, Vipin V. Bhimani, Nitin V. Bhimani and Girish Chandra Desai were appointed as trustees in respect of the said trust. Photostat copy of the Letters of Administration of erstwhile trustee, deed of declaration and board resolution dated 8th August, 2001 and 30th November, 2001 were annexed with the supplementary affidavit. It is also stated that Bhupatrai Kamani died on 14th March, 2019. The respondent has filed an affidavit-in-opposition against the aforesaid supplementary affidavit filed in connection with CAN 7103 of 2013. In Paragraph 5 of the said affidavit-in- opposition it is stated by the respondent that Bhupatrai Hirachand Kamani, since deceased and Vinodrai V. Bhimani who died during the pendency of the suit, were originally representing the appeal trust in the suit as the plaintiff. After the said suit was decreed in favour of the appellant, the respondent preferred an appeal where the appellant trust was represented by the said Bhupatrai Hirachand Kamani. After contesting the hearing, the learned First Appellate Court held, inter alia, that the suit is not maintainable since the said Bhupatrai Hirachand Kamani was never a trustee of the appellant trust as per trust deed on record before the learned Court below and accordingly, the appeal was allowed and the suit was dismissed. It is alleged by the respondent that the application for substitution was filed by the present trustee namely Vipin V. Bhimani, Nitin V. Bhimani and Girish Ch. Desai after a long lapse of more than 11 years and the application is liable to be rejected. It was further contended that the deponent failed to disclose any cogent document to dispel the finding the learned First Appellate Court that the Bhupatrai Hirachand Kamani was a trustee.
CAN No.7104 of 2013 is an application under Order XXII Rule 10 of the Code of Civil Procedure filed by the appellants/petitioners praying for permitting them to continue with S.A.265 of 2002 as subsequently appointed trustees in representative capacity. The averment made in CAN No.7104 of 2013 is literally identical with the application being CAN 7103 of 2013. The appellants even did not care to verify while making averment in the application that S.A.265 of 2002 arises from the judgment and decree of dismissal of Title Appeal No.24 of 1997 affirming the judgment and decree of dismissal of Title Suit No.54 of 1987.
This is undoubtedly a serious lapse on the part of the learned Advocate for the appellants and possibly for adopting "copy paste method" while preparing the said applications.
However, in connection with S.A.265 of 2002, the appellants/petitioners have also filed a supplementary affidavit stating devolution of trusteeship upon the petitioners by way of successive resolution taken by the Board of Trustees.
In both the applications, the respondents/opposite parties have challenged the locus standi of the present appellants/petitioners stating, inter alia, that the present appellants are not the trustees in the trust deed and as such they are strangers and had no locus standi to file the instant appeal. The parties to the appeal have no relationship of licensor and licensees and the appeals are not maintainable at the instance of the appellants.
I have already recorded herein above that Title Suit No.54 of 1987 was filed by Girdharlal Hansraj Kamani Trust represented by Bhupatrai Kamani and Vinodrai Bhimani. Bhupatrai Kamani deposed in the suit as P.W.1. In his cross-examination P.W.1 was stated under what capacity he had filed the said suit. In reply, he stated that he is one of the trustees in respect of Girdharlal Hansraj Kamani Trust . He also stated that he was appointed as a trustee about 12/15 years before the institution of the suit. In view of such cross- examination of P.W.1, the defendant/respondents cannot challenge the status of the plaintiff in the suit.
In my considered view, the Trial Court as well as First Appellate Court in Title Suit No.54 of 1987 and Title Appeal No.24 of 1987 failed to consider and appreciate the evidence on record during trial of the suit and hearing of the First Appeal. Similarly, the learned Judge in Title Appeal No.439 of 1993 failed to consider similar evidence on record while allowing the appeal setting aside the judgment and decree passed in Title Suit No.55 of 1987.
By way of supplementary affidavit, the present appellants clearly depicted devolution of interest as trustees in respect of the suit property. Therefore, under the provision of Order XXII Rule 10 of the Code of Civil Procedure, they are entitled to continue with the instant appeal. Paragraphs 57 and 58 of the decision of this Court in the case of Indian Craft Village Trust (supra) is absolutely relevant for the purpose of this appeals and are quoted below:-
"57. Provision contained in Order 22 Rule 10 of the Code of Civil Procedure recognises the right of the plaintiff and/or petitioner to continue the suit and/or litigation even after devolution of the interest in his successor. As such, the right to continue the proceeding by the petitioner No.2 representing the Trust, viz., the petitioner No.1 herein, cannot cease automatically after cessation of his trusteeship. Order 22 Rule 4 of the Code of Civil Procedure, however, gives a right to the successor upon whom the interest of the plaintiff and/or the petitioner devolves, to continue the suit and/or proceeding with the leave of the Court. If the successor having knowledge of this litigation, does not come forward to proceed with the suit and/or litigation with the leave of the Court, then the decision which will be passed in such a proceeding will bind the successor of the plaintiff and/or petitioner. The said principle was settled long back by the Division Bench of this Hon'ble Court in the case of Raicharan Mondal v. Bishwanath Mondal, reported in 20 CLJ 107, wherein it was held that the trial of a suit cannot be arrested merely by reason of devolution of interest of the plaintiff in his successor. It was further held therein that the successor-in-interest may, if he chooses, obtain leave of the Court under Order 22 Rule 10 of the Code of Civil Procedure to continue the suit, but if he does not do so, the original plaintiff may continue the suit and his successors will be bound by the result of the litigation. The consequence will be that the plaintiff, if successful, will obtain a decree which will enure to the benefit of his successor."
"58. The said principle has been reitereated by the Hon'ble Supreme Court in a different language in the decision of Dhurandhar Prasad Singh (supra), wherein it was held that when under Order 22 Rule 10 there has been a devolution of interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against persons upon whom such interest has devolved and this entitles, the persons who has acquired an interest in the subject-matter of the litigation by an assignment or creation or devolution of interest pendente lite or suitor or any other person interested to apply to the Court under Order 22 Rule 10 of the Civil Procedure Code for leave to continue the suit. It was further held therein that it is obligatory upon the successor to seek such leave and to continue the proceeding and if such a successor does not ask for leave, he takes the obvious risk that the suit may not be properly conducted by the plaintiff on record and yet he will be bound by the result of the litigation even though he is not represented at the hearing unless it is shown that the litigation was not properly conducted by the original party or he clouded with the adversary."
Again in Paragraph 63, it is observed by this Court as hereunder:-
"As a matter of fact, the Hon'ble Supreme Court in the case of J.P.Srivastava & Sons (P) Ltd. V. Gwalior Sugar Co. Ltd., reported in 2005(1) SCC 172, did not approve the decision of the Delhi High Court in the case of Duli Chand (supra), as universally true. In the said decision, the Hon'ble Supreme Court held that although, as a rule, trustees must execute the duties of their office jointly, but this general principle is subject to the following exceptions when one trustee may act for all :
(i)where the Trust deed allows the Trust to be executed by one or more or by a majority trustees; (ii) where there is expressed sanction or approval of the act by the co-trustees; (iii) where the delegation of power is necessary; (iv) where the beneficiary competent to contract consent to the delegation; (v) where the delegation to a co-trustee is in regular course of the business; (vi) where the co-trustee merely gives effect to a decision taken by the trustees jointly."
Following the principle laid down in Indian Craft Village Trust (supra), this Court can safely hold that a trust property can be represented by one or some of the trustees where there is express sanction or approval of the act by the co-trustees. The resolution adopted by the Board of Trustees which was subsequently registered in the office of the Registrar of Assurances in Calcutta and the copies of which are annexed with the supplementary affidavit, it is crystal clear that the present appellants are entitled to maintain this appeals against the legal heirs of the original licensees.
Last but in the least, right of a licensee to stay in the suit property is not at all heritable and such personal right ceases on the death of the original licensee. The legal heirs of the original licensee, since deceased may be substituted but they cannot claim the right of licence over the suit property as of right.
In view of the above discussions, the substantial questions of law are answered in favour of the appellants.
As a result both the appeals succeed and are allowed on contest. Consequently, CAN 7103 of 2013 and CAN 7104 of 2013 are also disposed of.
The judgment and decree of dismissal passed in Title Appeal No.24 of 1997 and Title Appeal No.439 of 1993 are set aside.
The respondents are directed to quit, vacate and deliver peaceful possession of the suit property within 60 days from the date of delivery of this judgment, failing which the appellants are at liberty to put the decree in execution.
Decree be drawn up accordingly.
There shall be no order as to costs.
Let a copy of this judgment be sent to the Court below forthwith along with Lower Court Records.
(Bibek Chaudhuri, J.)