Telangana High Court
Princess Ameena Marzia And Another vs Prince Shahmat Ali Khan And 6 Others on 5 December, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Revision Petition No.453 OF 2020
ORDER:
Aggrieved by the order dated 29.11.2019 in I.A.No.32 of 2019 in O.S.No.387 of 2006 (hereinafter will be referred as 'impugned order') on the file of learned Chief Judge, City Civil Court, Hyderabad, the plaintiffs have filed the present Civil Revision Petition.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the trial Court.
3. The brief facts of the case as can be seen from the record available before this Court are that initially the plaintiffs represented by their GPA by name Zamin Ali Khan have filed suit vide O.S.No.387 of 2006 seeking partition and separate possession in respect of suit schedule properties against defendant Nos.1 to 3 and subsequently defendant Nos.4 and 5 were impleaded. During the pendency of the suit, the plaintiffs have filed I.A.No.32 of 2019 under order I Rule 10 read with Section 151 of the Code of Civil Procedure to implead E. Ismail and M. Sultan Mohiuddin as defendant Nos.6 and 7. It is the contention of the learned counsel for the plaintiffs that they have received a letter dated 05.12.2018 from the office of H.E.H. 2 MGP,J CRP_453_2020 the Nizam's Trusts furnishing the details of trustees i.e., Mr. Asif Pasha and the proposed defendants i.e., E. Ismail and M. Sultana Mohiuddin, who are managing the Prince Muazzam Jah Trust (defendant No.3). It is further contended that prior to receipt of the above said letter, the plaintiffs were not aware of the functioning of E. Ismail and M. Sultana Mohiuddin as trustees to the defendant No.3 as such the plaintiffs have shown Mr.Asif Pasha as single trustee to the defendant No.3. Hence, the plaintiffs were advised to implead the other two trustees i.e., the proposed defendant Nos.6 and 7.
4. To the said petition, the defendant No.3 being represented by one of the trustees by name Mr.Asif Pasha filed counter by denying the petition averments and mainly contended that though there are other trustees, the trust is being represented properly represented by Mr.Asif Pasha in all the legal matters including the main suit. It is further contended that the trustees have no personal interest whatsoever in the subject matter of the suit and the plaint does not even disclose any cause of action or relief against the trustees in their personal capacity, thereby the proposed parties are not necessary or proper parties to the suit. It is further contended that the petition is filed to complicate the suit and drag the proceedings 3 MGP,J CRP_453_2020 on one ground or other and finally prayed to dismiss the petition.
5. After considering the rival contentions, the learned Chief Judge, City Civil Court, Hyderabad has dismissed the petition on the ground that the plaintiffs failed to establish the specific interest of proposed parties over the subject matter has and that the trustees have no personal interest over the subject matter of the suit. Aggrieved by the same, the plaintiffs have preferred the present Civil Revision Petition.
6. Heard both sides and perused the record.
7. It is the specific contention of the learned counsel for the revision petitioners/plaintiffs that the learned trial Court Judge erred in holding that proposed parties to be impleaded as defendant Nos.6 and 7 are not necessary and parties to the suit as the trust already being party to the suit and the said observation is contrary to the judgment of the Honourable Supreme Court in Sainath Mandir Trust v. Vijaya 1 wherein the Honourable Supreme Court held that all the trustees in and case have to be joined parties. The learned trial Court Judge observed in the impugned order that the said decision is not applicable as the suit in the above said decision was filed under 1 2010 (0) SCJ Online (SC) 1527 (DB) 4 MGP,J CRP_453_2020 Public Trust Act, 1950 but in the case on hand the suit was not filed under any Trustees Act. But it is pertinent to note that Order XXXI of the Code of the Civil Procedure is applicable in respect of all the suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee; executor or Administator shall represent the persons so interested. Thus, it cannot be said that the decision in Sainath Mandir Trust's case (supra) is not applicable to the facts of the case on hand.
8. As per Sections 47 and 48 of the Trustees Act, a trustee cannot delegate his office or any of his duties either to a co- trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the declaration is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. It is not the case of the defendant No.3 that the proposed defendant Nos.6 and 7, who are other trustees of defendant No.3 have delegated their duties to one of the co- trustee i.e., Mr. Asif Pasha. Even under the provisions of Code of Civil Procedure, Order XXXI Rule 2 of the Code of Civil Procedure mandates that a plaintiff needs to join all the trustees 5 MGP,J CRP_453_2020 as parties to the suit. As held above, the trust properties vest on all trustees. Body of the Trust comprises of all the trustees of the Trust. It is, therefore, apparent that first of all, all the trustees have to decide whether or not suit is to be filed on behalf of the Trust. It has to be a joint or at least decision by majority. It cannot be disputed that the decision of the Trust must be reflected in the resolution passed in a meeting of the Managing Committee of the Trust. It is only through such resolution the Trust can speak or disclose its mind that it has decided to file suit and authorised one of its trustees to sign and verify the plaint to appoint or engage leader to represent the interest of the trust. In the instant case, it is nowhere mentioned by the defendant No.3 that the suit is being filed in pursuance of any such resolution passed by the Managing Committee of the defendant -Trust. Nowhere it is mentioned that Mr. Asif Pasha was authorised by all the trustees to represent interest of the Trust and that he is entitled to sign and verify the plaint on behalf of the trust.
9. The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co- trustees form, as it were, one trustee and must therefore execute the duties of their office jointly. Hence no suit in regard 6 MGP,J CRP_453_2020 to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the Court either as plaintiffs or even as defendants. It is settled law that all co-trustees must be joined in filing suit unless the instrument of the Trust otherwise provides. No one single co- trustee even if he be as a managing trustee, unanimously chosen by the co-trustees, can maintain such a suit without other trustees being parties to it. If any one or more trustees are unwilling to be join in the suit as plaintiff or for some reason or the other it is not possible to join them as plaintiff, they must be impleaded as defendants so that all the co-trustees could be before the Court.
10. Admittedly in the case on hand there are three trustees to the defendant No.3 Trust. As per the contention of both the sides, by the date of passing the impugned order, the trial has not commenced in the suit. It is settled law that plaintiff is the dominus litis and he is the master of his suit as to whom to implead as parties to the suit. The defendant No.3 has not explained any reason as to what kind of prejudice that is going to be caused to the Trust if the other trustees i.e., proposed defendants are impleaded in the suit.
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11. In view of the above facts and circumstances, this Court is of the considered view that the learned trial Court Judge has erred in dismissing the application filed by the plaintiffs to implead the remaining trustees as proposed defendant Nos.6 and 7 and thereby the impugned order is liable to be set aside.
12. In the result, the Civil Revision Petition is allowed by setting aside the impugned order dated 29.11.2019 in I.A.No.32 of 2019 in O.S.No.387 of 2006 on the file of learned Chief Judge, City Civil Court, Hyderabad and accordingly, the interlocutory application filed by the plaintiffs vide I.A.No.32 of 2019 in O.S.No.387 of 2006 is allowed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 05.12.2023 AS