Document Fragment View

Matching Fragments

Explanation:--The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."

Section 48 is as follows :-

"When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides".

Placing reliance on these two sections, Mr. Apte points out that instrument of the trust is not produced on the record and it is nobody's case that the instrument of the trust provides any delegation as referred in section 47. It is also not the case of the petitioners that the delegation is in regular course of business or the delegation is necessary and hence Shri Apte points out that in view of the provisions of section 47 and 48 the suit filed only by two trustees is not maintainable. In order to further substantiate his contention Shri Apte relies upon Full Bench decision , Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, and he points out that decision making by co-trustees must be joint in absence of severality in the Trust deed, though mere formal act by one is permissible. Thus he contends that unless the instrument of Trust provides, all co-trustees must join in filing the suit to recover the possession of the property from the tenant. He pointed out that almost all the major High Courts have consistently taken a view that suit filed by some of the trustees without exoneration of this, is not maintainable. A.I.R. (36)1949 Calcutta 519 Ramesh Chandra Roy v. Hemendra Kumar Roy, has also taken identical view as expressed by the Full Bench in , Atmaram Ranchhodbhai v. Gulam Mohyeddin, (supra). He also points out that the view expressed by Full Bench is also followed by Justice Shri S.K. Desai in Special Civil Application 3107 of 1975 though in a different context and hence he points out that the reasoning assigned by the two courts below in holding that the suit is not maintainable is correct and no interference is called for of this Court in exercise of its power under Article 227 of the Constitution. He also supports the finding of the two courts below and the interpretation of section 6 of the Societies Registration Act, 1860 and he rightly points out that in view of the definition of section 2(13) the society registered under the Societies Registration Act, 1860 is also included in the definition of the said Public Trust. In view of this he contends that both the judgments should be confirmed.

10. So far as writ petition filed by Shri Apte challenging the findings of the merits bearing No. 2773 of 1982 is concerned, he contends that the courts were in error to record a finding that the tenant was in arrears and that they were defaulters within the meaning of Rent Act. Thus, he challenged the finding even on merits.

11. After hearing both the learned Counsels I am not inclined to accept the submission of Shri Abhyankar whereas I am inclined to accept the contentions of Shri Apte as I find that the Full Bench Decision of Gujrat Atmaram Ranchhodbhai v. Gulam Moyeddin,(supra) is directly on the point and arises under the Rent Act. It has been held by the Full Bench of Gujrat that unless instrument of trust otherwise provides all co-trustees must join for filing a suit to recover the possession of the property from the tenant. It is nobody's case in this matter that the instrument of the Trust provides otherwise. In fact, instrument of the Trust is not even produced on the record, and on the proper construction of section 47 and 48 of the Indian Trust Act which are reproduced above, the contention raised by Shri Apte is correct. Section 47 clearly deprives the trustee from delegating his office in any of his duties to co-trustee or to a stranger unless conditions mentioned in the said section are complied with. It is not in dispute in this matter that the conditions referred to in section 47 are not complied with by the plaintiffs. When one reads both section 47 and section 48, it would not be difficult to record a finding that the present suit filed by the two trustees is not maintainable. The second submission with reference to section 6 of the Societies Registration Act, 1860 cannot be accepted in view of the definition of Public Trust given in section 2(13) of the Bombay Public Trust Act. Section 2(13) of Public Trust Act reads as follows :-

"Public Trust means an express or constructive trust for either public religious or charitable purpose or both and includes a temple, a Math, Wakf, Church, Synagogue, agiary or other place of public religious worship a dharmada or any other religious or charitable endorsement and the Society either for religious or charitable purpose or for both and registered under the Societies Registration Act, 1860."

Conidering the said definition of the Public Trust, it is very clear that the society registered under the provisions of Societies Registration Act, 1860 is also included in the definition of the said Public Trust and hence suit filed only by two trustees will not be maintainable. Granting of a lease is a matter which cannot be delegated by a trustee and, therefore, it must follow as a necessary corollary that determination of a lease also cannot be regarded as a matter which can be delegated by a co-trustee to another co-trustee or to any one else. The power and function to determine the lease is of the same nature and as the power and function to grant a lease cannot be delegated, equally other cannot be. Both the functions are effected with beneficiary's judgment. All the co-trustees are bound to exercise their judgment and no one co-trustee can delegate these functions to his co-trustee or to any other person. These observations made by the Full Bench apply to the facts of the present case and for the same reasoning I refuse to accept the contention raised by Shri Abhyankar.