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JaIn Swetambara Murthi Pujaka Samastha and ors. Vs. Waman Dattatreya Pukale and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 2247, 2717 and 2725 of 1973
Judge
Reported inAIR1979Kant111; ILR1979KAR655; 1978(2)KarLJ425
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 1, Rule 10(2) - Order 6, Rule 17; Karnataka Rent Control Act, 1961 - Sections 21(1); Indian Trusts Act - Sections 48
AppellantJaIn Swetambara Murthi Pujaka Samastha and ors.
RespondentWaman Dattatreya Pukale and ors.
Excerpt:
.....institution of the proceedings is void ab initio and not merely an irregularity curable by a subsequent impleading of the rest of the trustees. as a corrollary of this principles, the supreme court observed that the trustees cannot transfer their duties, functions and powers to some body of men and create them trustees in their own place unless that is clearly permitted and enabled by the trust-deed or agreed to by the entire body of trustees. no suit shall be defeated by reason of the misjoinder or non-joiner of the parties but there can be no doubt that if the parties who are not joined are not only proper but also necessary partied to it, the infirmity in the suit is bound to be fatal. the position, in principle, should not in our opinion, be very different in the case of..........which governed the rights of the trustees of a public trust as well enjoined upon the co-trustees of a trust to join in the execution of the trust-the recovery of possession of property from the tenant being a duty arising in the execution of the trust-and that in the absence of express provisions in the constitution of the trust enabling one amongst the trustees so to do, it was not permissible for ganapatchand padamchand shah alone to institute the proceeding and that consequently institution of the proceedings is void ab initio and not merely an irregularity curable by a subsequent impleading of the rest of the trustees. sri kulkarni sought to rely upon some observations of the supreme court in abdul kayum v. alibhai, : [1963]3scr623 , which were followed in a full bench.....
Judgment:

Venkatachaliah, J.

1. These three Civil Revision petitions under Section 115 of the Code of Civil Procedure by Jain Swetambara Murthi Pujaka Samstha, said to be a public trust, are directed against the three orders, all dated 30th August, 1973, made by the Principal Munsiff, Bijapur on interlocutory application in H. R. C. No. 33 of 1970, H. R. C. No. 71 of 1964 and H. R. C. No. 1 of 1970 respectively. By the said orders, the Court below dismissed the applications filed by the petitioner-landlord invoking provisions of O. 1, R. 10, sub-rule (2) read with O. VI, R. 17 of the Civil P. C. Range Gowda, J., has referred these petitions to a Division Bench, and that is how they are before us.

2. The factual antecedents in so far as they are necessary for the decision of the question that arises in these petitions are the following:

Petitioner herein is said to be a public trust the powers of management and governance respecting which are said to vest in a body of 10 trustees. Petitioner filed in the court below three petitions under the provisions of the Karnataka Rent Control Act, 1961 seeking eviction of the respondents in these three civil revision petitions on several of the grounds set out in the proviso to sub-section (1) of S. 21 of the said Act. The memorandum of petitions in the three eviction cases which were brought in the name of the 'Jain Swethambara Murthi Pujaka Samstha', were however, signed and verified by one Ganapatchand Padamchand Shah, one of the trustees claiming to be the President of the petitioner-trust. Respondents in their statement of objections contended, inter alia, that the eviction proceedings instituted, as they came to be, by only one among the 10 trustees were not validity instituted and that no relief on foot thereof was permissible to be granted. Thereafter the petitioner filed three interlocutory applications, I. A. No. 3 in each of the cases, seeking to have the other 9 trustees impleaded as co-petitioners along with the original signatory of the petitions. This prayer for impleading and the consequent prayer for amendment are stated to have been sought by petitioners by way of ample precaution and to avoid any controversy as to the validity of the institution of the proceedings.

These interlocutory applications having come to be contested by respondents, the Court below passed orders dated 30th August, 1973, refusing the impleading and dismissing the interlocutory applications. The Court below took the view that the very institution of the proceedings at the instance of one alone amongst the 10 trustees of the petitioner-trust was defective ab initio, and that the illegality could not be cured by a subsequent impleading of the other trustees. It is the correctness of these orders that is challenged in the three revision petitions here.

3. We have heard Sri B. V. Krishnaswamy Rao. Learned counsel for the petitioner in all the three cases and Sri S. K. Kulkarni, learned counsel for the respondents.

Sri Krishnaswamy Rao contended that even assuming that all the 10 trustees of the 'Jain Swetambara Murthi Pujaka Samastha' had had to institute the proceedings jointly by subscribing their signatures to the memoranda of eviction petitions in exercise of their joint powers and functions as trustees and were accordingly, necessary parties to the proceedings, the view taken by the Court below that the amendments were not allowable proceeded on misconception as to the nature of the defect resulting from the institution of the proceedings by one alone of the trustees. Sri Krishnaswamy Rao relying upon the decision in Capt. S. V. Daniels v. Gregory warden Friendly Trust, : AIR1959All579 which in turn relied upon an earlier ruling of the Madras High Court in Thina Shanmuga Moopanar v. Mona Ghuna Nana Subbayya Moopanar, AIR 1922 Mad 317, submitted that the defect in the institution of the proceedings in such a case could not be said to be such as to justify the view that the petitions so instituted were mere nullities. The defect, according to the learned counsel for petitioner, was of a formal nature and the omission to implead the other trustees amounted only to an irregularity curable in the manner sought by interlocutory applications filed in the court below.

4. Sri. S. K. Kulkarni, learned counsel for the respondents-tenants, however, sought to support the orders of the court below, contending in the main that S. 48 of the Indian Trusts Act, the principles underlying which governed the rights of the trustees of a public trust as well enjoined upon the co-trustees of a trust to join in the execution of the trust-the recovery of possession of property from the tenant being a duty arising in the execution of the trust-and that in the absence of express provisions in the constitution of the trust enabling one amongst the trustees so to do, it was not permissible for Ganapatchand Padamchand Shah alone to institute the proceeding and that consequently institution of the proceedings is void ab initio and not merely an irregularity curable by a subsequent impleading of the rest of the trustees. Sri Kulkarni sought to rely upon some observations of the Supreme Court in Abdul Kayum v. Alibhai, : [1963]3SCR623 , which were followed in a Full Bench ruling of the Gujarat High Court in Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, : AIR1973Guj113 (FB).

5. In Abdul Kayum v. Alibhai, : [1963]3SCR623 , the Supreme Court referred to worth approval, the statement of the law contained in Lewin on Trusts (Sixth Edition, page 181) to the effect that in the case of the co-trustees of a private trust the office is a joint one and where the administration of the trust is vested in co-trustees they all form, as it were, but one collective trustee and therefore must execute the duties of the office in their joint capacity. As a corrollary of this principles, the Supreme Court observed that the trustees cannot transfer their duties, functions and powers to some body of men and create them trustees in their own place unless that is clearly permitted and enabled by the trust-deed or agreed to by the entire body of trustees. It was further observed that no trustee can delegate any of the duties, functions and powers to his co-trustees or to any one else except in some specified case. Following this pronouncement of the Supreme Court, the High Court of Gujarat in Atmaram's case : AIR1973Guj113 (FB) held that unless the instrument of trust otherwise provided, all co-trustees must join in filing a suit to recover possession of the property from a tenant and that no one trustee, even if he be a managing trustee unanimously chosen by the co-trustees, can maintain such a suit without joining the other co-trustees. It was further laid down that all co-trustees must join in the suit and that if any one or more of them is or are unwilling to be joined in the suit as plaintiff or plaintiffs or for some reason or the other it is not possible to join him or them as co-plaintiff or co-pliantiffs, he or they must be impleaded as defendant or defendants, as the case may be, so that all co-trustees are before the Court. Sri S. K. Kulkarni sought to draw upon these observations to support his contention that if one only amongst the body of trustees institutes proceedings for recovery of possession of trust property from a tenant the proceedings would, unless that is enabled by a specific provision in the Charter of Trust, be wholly illegal and void and not amenable to rectification by subsequent impleading of the other trustees. It must however be observed that in the two decisions i.e., in Abdul Kayum v. Alibhai and Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin, the consequences that flow from the institution of the proceedings by one only of the trustees in relation to and in the context of a subsequent application for brining the other trustees on record have not been specifically considered. All that the two authorities lay down is that where there are more trustees than one, the powers of administration and control of a trust, all such co-trustees must be joined in a legal proceeding instituted on behalf of the Trust and if any one or more of them is or are unwilling to be joined in the suit as co-plaintiff or co-plaintiffs he or they must be impleaded as defendant or defendants as the case my be, so that all co-trustees are before the Court. This rule operates unless there is a specific provision to the contrary in the very instrument of trust.

6. It appears to us that the proposition of Sri. S. K. Kulkarni that the principles laid down by the Supreme Court in Abdul Kayum v. Alibhai, : [1963]3SCR623 and applied by the Full Bench of the Gujarat High Court that the institution of proceedings by one only amongst the trustees is not merely an irregularity but wholly void, seems to be too broadly stated. Sri Kulkarni has not been able to substantiate this board proposition either with reference to any principle or precedent. On the contrary, dealing with a case of co-ownership and the rule that all co-owners must join in as action for recovery of property in which they are jointly interested, the Supreme Court in Kanakarathanammal v. V. S. Loganatha Mudaliar, : [1964]6SCR1 has had this to say:

.'....... on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolved by succession under S. 12 of the Act. That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under O. 1, R. 9 of the Civil P. C. no suit shall be defeated by reason of the misjoinder or non-joiner of the parties but there can be no doubt that if the parties who are not joined are not only proper but also necessary partied to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under O. 1, R. 10, sub-rule (2) direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties' plea of limitation.'

It is clear from the above enunciation that even where proceedings are instituted by one co-owner alone amongst the body of co-owners and where all the co-owners are necessary to be joined as parties and where also the omission so to do is considered fatal to the proceedings, it is not impermissible for the Court, in appropriate cases, to permit the impleading of the other co-owners in exercise of its powers under O. 1, R. 10 sub-rule (2) of the Civil P. C. The position, in principle, should not in our opinion, be very different in the case of trustees as well.

Sri S. K. Kulkarni is unable to shoe why this principle should not be extended to a case of co-trustees. Indeed the case relied upon by Sri B. V. Krishnaswamy Rao in Thina Shanmuga Moopanar v. Mona Ghuna Nana Subbayya Moopanar, AIR 1922 Mad 317 followed in Capt. S. V. Daniels v. Gregory Warden Friendly Trust, : AIR1959All579 fully supports the view we take of the matter.'

Indeed, it may also be observed in the present case that there is no question of bar of limitation inasmuch as on the date of the application for impleading a fresh application by all the trustees could very well have been filed.

7. For the reasons stated above, we are of the opinion that the Court below was not justified in rejecting the applications for impleading and the consequential amendments in these cases. Accordingly, in reversal of the orders of the Munsiff in interlocutory applications, we allow the said applications and direct that the other trustees be impleaded as co-petitioners in the three eviction petitions. The memorandum of the eviction petitions shall be suitably amended. The proceedings in the said eviction cases will thereafter proceed in accordance with law.

8. As these matters have, for one reason or the other, been pending for a long time, we direct the trial court to dispose of the three cases as expeditiously as possible.

9. In the circumstances of the case, the parties are left to bear their own costs in these civil revision petitions. Ordered accordingly.

10. Revisions allowed.


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