1. This petition raises really a very simple point for determination whether one trustee after the death of two co-trustees can sue a tenant, who took a land belonging to the trust on lease, for recovery of arrears of rent. The learned District Munsiff answered this question in the negative and dismissed a suit filed by the petitioner to recover Rs. 69-14-0 arrears of rent from the defendant on the ground that the two co-trustees who had joined in execution of a five years' lease on 30th June, 1939, in favour of the defendant were dead and their legal representatives had not been impleaded.
2. The short facts are these. The trust property in question of an unusual type, namely, a village tank 7 acres and 29 1/2 cents, was leased out for five years to the defendant on 30th June, 1939, on a rental of Rs. 180 a year. It is common ground that the lease deed describes the plaintiff and two other executants as dharmakarthas of this cheruvu. The suit sought to recover only a balance of rent for the year ending 1944 from the defendant who is said to have cultivated with two others who had paid their share of the rent. The defendant pleaded discharge in the suit and filed two receipts which he claimed to have been given him by the brothers of the dead trustees.
3. The learned District Munsiff found these receipts to be not genuine and then went on to consider, the legal issue of the maintainability of the suit. Nowhere in the written statement is there any allegation that the suit was not maintainable on the ground that the legal representatives of the deceased trustees were not impleaded. There is a reference in the written statement to the legal representatives of the deceased trustees being entitled to receive the balance of rent due. That was merely to implement the discharge plea put forward that this rent had been paid to the brothers of the original trustees. The learned District Munsiff held that the legal representatives of the other co-trustees had to be joined under Section 45 of the Contract Act which clearly has no application. He was also guided by some observations in Vedakannu Nadar v. Ranganadha Mudaliar : AIR1938Mad982 . The facts there however were entirely different. That litigation concerned the alienation of the office of the trustee of a charitable endowment for consideration and it was held that the alienation conferred no right on the alienee and could not be of any validity after the death of the alienor and cannot prejudice the rights of his sons who should be considered to be still trustees. The learned District Munsiff relied on some observations that no suit in regard 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.
4. It is contended on behalf of the petitioner in the first place that this objection was not taken by the defendant in his written statement. A point of law however can be taken at any time even by the Court. It seems clear however that this point was raised by the vakil for the defendant in an acute form at the trial in the lower Court. The learned advocate here also placed reliance on Vedakannu Nadar v. Ranganadha Mudaliar : AIR1938Mad982 . He also referred me to some other decisions which are not in point. One of them Shanmugha Moopanar v. Subbayya Moopanar (1921) 42 M.L.J. 133. relates to a case of living trustees who had not been impleaded in a suit for possession. Assistance has also been invoked of some decisions which laid down that joint promisees under a negotiable instrument must all join in a suit, see Annapurnamma v. Akkayya (1912) 24 M.L.J. 333 : I.L.R. 36 Mad. 544 and Siluvai Muthu Mudaliar v. Muhammad Sahul : AIR1927Mad84 . Co-trustees, however, are in a different position from joint promisees. The learned advocate for the petitioner relies on Sections 44 and 76 of the Trusts Act by which on the death of one trustee the authority may be exercised by the continuing trustees to whom the trust property passes. In Krishna Bhatta v. Udayavar Srinivasan (1915) 32 Ind.Cas. 97, a Bench of this Court held that on the death of one of the trustees in the course of the suit it could be validly continued by the other three. In Raghavachariar v. Chakrapani Naidu (1932) M.W.N. 297, it was held that under Section 44 of the Trusts Act when one of two trustees dies the other trustee is competent to file suits against the debtors of the estate. It is urged by the learned advocate that the Trusts Act does not govern religious and charitable trusts. I am not quite clear what kind of trust this tank really is. In any event, Section 44 and Section 76 merely reproduce principles which are ordinarily applicable under ordinary law to all kinds of trustees. The learned District Munsiff erred in applying Section 45 of the Contract Act and in following decisions where the facts were entirely different. I have no hesitation in holding that the plaintiff as the surviving trustee of three trustees of this tank was entitled to file this simple suit for recovery of arrears of rent, and that it was not incumbent on him to implead the legal representatives of the other trustees. Furthermore, as the learned advocate for the petitioner points out, this point was not taken in the written statement and the plaintiff really had no opportunity of meeting this objection by impleading the legal representatives, which is in law not in the circumstances necessary. There is no evidence before us as to how the trusteeship of this tank devolves or of what nature it is. There is therefore no substance in the technical defence put forward in the suit although it succeeded before the learned District Munsiff.
5. The petition is allowed with costs. There will be a decree against the defendant as prayed for with costs.