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9. The main contention urged in the appeal is that the Trial Court ought to have held it is a trust and under the Trust Act, all the trustees should join together and file a suit and they cannot delegate such power at all. Hence, the suit is not maintainable. It is also contended that the Trial Court ought to have held from the facts, it is clear that Ex.P1 does not indicate that the suit schedule property belongs to the trust and admittedly, no title deed or land khatha is registered in the name of the trust. Admittedly, no tax is paid by the trust to the suit schedule property and there is nothing to show that the trust has leased the property to the appellant herein.

11. Learned counsel appearing for the appellant in his argument vehemently contend that Sections 46 and 47 of the Indian Trusts Act, 1882 it is clear that a trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless the instrument of trust so provides, or the delegation is in the regular course of business, or the delegation is necessary or the beneficiary, being competent to contract, consents to the delegation. Section 48 is also clear that co- trustees cannot act singly when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust, otherwise provides. Hence, the counsel would vehemently contend that suit itself is not maintainable.

42. The counsel, in support of his argument, relied upon unreported judgment of this Court passed in Regular First Appeal No.1248 of 2003 dated 28.09.2012 and brought to the notice of this Court para-6 of the judgment and so also observations made in page-25 of the judgment wherein, it is held that, a trustee cannot delegate any of the duties, functions and powers of his office to his co-trustees or to anyone else, as that would be contrary to his obligation under the Trust and the Court has to examine whether it is a private trust governed by Indian Trusts Act or is a public charitable or religious trust, a trustee cannot delegate any of his duties, functions and powers to a co-trustee 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 the regular course of business. In this judgment, referring the judgment of the Apex Court in KANAKARATHANAMMAL VS. V.S. LOGANATHA MUDALIAR reported in AIR 1965 SC 271, this Court held that though the Court could direct the necessary parties to be joined, but this should be done at the stage of trial and that too, without prejudice to the plea of the parties as to limitation.

(v) Whether the Trial Court has committed an error in directing the appellant-defendant to pay the arrears of rent and respondent-

plaintiff is entitled for mesne profits?

     (vi)    What order?


Point No.(i)

46. Having heard the learned counsel for the appellant- defendant and also the principles laid down in the judgments referred (supra), Sections 47 and 48 of the Indian Trusts Act, 1882 is clear that trustee cannot delegate and also co-trustee cannot act singly to maintain the suit. The principles laid down in the judgments referred (supra) is also very clear that the trustee cannot delegate the power. But, in the case on hand, it has to be noted that the suit is filed by the Secretary of Sri Gundlu Muneswara Swamy Temple Trust which duly constituted and registered under the provisions of Indian Trusts Act which is founded for religious, charitable and educational purpose against the appellant-defendant, who is a tenant under the plaintiff. But, the defendant has disputed that he is not a tenant under the plaintiff. Hence, this Court has to take note of the contents of the written statement. It is brought to the notice of this Court by learned counsel for the defendant during the course of argument that, in para-3 of the written statement, the defendant has specifically denied that he is not the tenant. It is contended that there is no landlord and tenant relationship between the plaintiff and defendant insofar as the plaintiff is not at all the owner of the suit schedule property. Hence, the suit is not maintainable.