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FA/1082/1980 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 1082 of 1980
With
FIRST
APPEAL No. 1083 of 1980
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
SAIYADNA
MOHMED BURHANUDDIN – Appellant(s)
Versus
ANJUM
S/O AKHTARHUSSAIN MOHMADSAFI – Defendant(s)
=========================================================
Appearance
:
MR
MB GANDHI for
Appellant(s) : 1,
MR AJ MEMON for Defendant(s) : 1, 1.2.1, 1.2.2,
1.2.3, 1.2.4, 1.2.5, 1.3.1,1.3.2
– for Defendant(s) : 1.2.6 –
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 18/07/2008
ORAL
COMMON JUDGMENT
1. These
two appeals are directed against the judgment and decree dated
28.07.1980 passed in Civil Suit Nos. 1495 of 1974 and 1531 of 1975,
whereby both the suits were dismissed.
2.0. The
short facts of the case are :-
2.1. The
appellants original plaintiffs had filed a Civil Suit No. 1595 of
1974 and Civil Suit No. 1531 of 1975, respectively against the
defendants for possession of land bearing Survey No. 488-B-21 and
Municipal Census No. 1264-1-21, admeasuring 15 feet x 19 feet, and
land bearing Survey No. 488-B-21 and Municipal Census No. 1264-1-21,
admeasuring about 20 feet x 12 feet, in the City Civil Court,
Ahmedabad. The learned Judge, after hearing the respective parties
and considering the evidence on record, dismissed both the suits.
Hence, the present First Appeals.
3.0. Mr.
M.B. Gandhi, learned counsel for the appellants, has contended that
the appellant-plaintiff has right to file the present suit through
the Power of Attorney Holder of the trustees of the
appellant-plaintiff trust. In support of this submission Mr. Gandhi
has strongly placed reliance on the decision of this Court rendered
in the case of Saiyadna M. Burhanuddin Saheb v. Taraben Mohammed
Shafi Ibrahimhakim heirs of S.I. Hakim, reported in 2006 (2) GCD pg.
1055, wherein the learned Single had relied on the decision of
the Full bench and in para 11 and 12 has held as under :-
?S11. Mr.Gandhi,
the learned advocate submitted that the decision of the Full Bench of
this Court in the matter of Atmaram Ranchhodbhai (Supra) has no
application to the facts of the present case. He submitted that the
facts of the case before the Full Bench were peculiar and altogether
different and have no similarity, even remotely, to the facts of the
case on hand. He submitted that the Full Bench was considering the
matter on a reference being made by learned Single Judge of this
Court on two questions ? (1) whether some only out of several
co-trustees can effectively determine a tenancy by giving notice to
quit and (2) whether a suit to evict a tenant can be filed by one or
more co-trustees without joining other co-trustees in the suit.
The Full Bench has
taken into consideration that both questions are of frequent
occurrence in cases arising under the Rent Act and even under the
general law of landlord and tenant, it was felt necessary that they
be considered properly and law on the subject should be finally
settled. The Full Bench necessarily considered the duties, functions
and powers of trustee and held that the same cannot be delegated to
co-trustee. The Full Bench decided in categorical terms that,
?STrustees cannot give even by unanimous resolution authority to
anyone of them to be managing trustee.?? Mr.Gandhi, the learned
advocate submitted that in absence of any specific provision to this
effect, if such occurrence is allowed, it will amount to rewriting of
the document from which power flows to the trustees. He submitted
that it is a matter of which judicial notice can be taken that the
trustees derive their power from ‘the trust deed’ and in the cases
where there are more than 1 trustees, it is for the settler of the
trust to decide as to what power he wants to confer on the trustees
whether he wants any one of them to act as a managing trustee or not.
If the trust deed does not provide for a post of a managing trustee,
all the trustees acting unanimously also, cannot confer the status of
a managing trustee on any one of themselves. He submitted that the
fact ? situation of the case on hand is different then the one
which was under consideration of the Full Bench and therefore, the
said decision has no application to the facts of the present case.
12. This Court having
found substance in the submissions of Mr.Gandhi and being convinced
of the fact that the decision in the case of Atmaram Ranchhodbhai
(Supra) has no application to the facts of the case on hand, holds
that the Courts below have erred in holding that in light of the
aforesaid decision (in the case of Atmaram Ranchhodbhai (Supra)), the
sole trustee could not have appointed an estate manager and that the
suit filed by the estate manager is not maintainable. ?S
3.1. Mr.
Gandhi, learned counsel for the appellant has also relied upon the
decision of this Court rendered in First Appeal No. 967 of 1979
dated 18th March, 2004, [Raziabenu v. Shaikh Rajabali
Mohmadali] wherein, same principle has been laid down.
3.2. As
against that Mr. A.J. Memon, learned counsel for the respondents has
supported the impugned award and submitted that suits filed by the
appellant-original plaintiff through its Power of Attorney Holder and
who had ceased to be the appellant-original plaintiff’s Power of
Attorney, it would not be open to such Power of Attorney Holder to
present the suits on behalf of the appellant-original plaintiff. In
support of his submission he has placed reliance on the decision of
the Apex Court rendered in the case of I. Sheikh Abdul Kayum &
Ors. v. Madrasai Hakimia & Coronation High School, Society &
Ors. Reported in AIR 1963 SC pg. 309
wherein the Court has held that the Trustees cannot transfer their
duties, functions and powers to some other body of men and create
them trustees in their place unless this is clearly permitted by the
trust deed, or agreed to by the entire body of beneficiaries.
4.0. Heard learned counsel
for the respective parties. The main contention raised in the appeals
is that whether the appellant-original plaintiff has right to file
suit through its Power of Attorney Holder? Having perused the record
of the case, it transpires that
the suit in question was
filed for eviction of the original defendants on the ground of
trespassers and unauthorized possession, on revocation of their
license. The explanation to Section 47 of the said Act makes it clear
that 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. To preserve the
property from trespass or unauthorized occupation is merely
ministerial act and therefore, it was open to the original plaintiff
to have delegated power to file the suits against the original
defendants. The plaintiff is the sole trustee of the Trust property.
In view of the principle laid down in First Appeal No. 967 of
1979 dated 18th March, 2004 and also in the case of
Saiyadna M. Burhanuddin Saheb v. Taraben Mohammed Shafi
Ibrahimhakim heirs of S.I. Hakim (supra), wherein, this
Court has also taken into consideration the Full Bench Decision which
is rendered in the case of Atmaram Ranchhodbhai v. Gulambusein
Gulam Mohivaddin & Anr. Reported in 13 GLR pg 828, I am of
the opinion that the suits filed by the Power of Attorney Holder on
behalf of the sole trustee is maintainable in the eye of law.
5.0. In the premises
aforesaid, the appeals are allowed. The cabins which have been raised
by the respondent-original defendants on the land bearing Survey No.
488-B-21 and Municipal Census No. 1264-1-21 shall be removed. No
order as to costs.
[K.S. JHAVERI,
J.]
/phalguni/
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