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Koyittal Parambil Parkum Chirathodi Vazha Valappil Cheeru and ors. Vs. Attimana Illeth Narayanan Nambudiri and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in50Ind.Cas.371
AppellantKoyittal Parambil Parkum Chirathodi Vazha Valappil Cheeru and ors.
RespondentAttimana Illeth Narayanan Nambudiri and ors.
Cases ReferredWilkinson v. Malin
Excerpt:
trust - kanom, grant of, by one of two trustees, validity of--kanom amount, application of, to discharge liability on trust property--charger. - - we do not think that we should be warranted in extending the principle to a case like the present where only one out of two trustees has exercised an act which ought to be done by both the trustees jointly......those decisions are based on the principle that unless the act of the majority was upheld in many cases the trust estate would suffer. in the case of two trustees, however, this principle will not apply because there is no majority. that is what is practically indicated in savitri antarjanam v. raman nambudri 24 m. 296. the decision in wilkinson v. malin (1832) 2 c. & j. 636, which is the leading case on the subject, bases it on the principle that the majority should have approved of the act. we do not think that we should be warranted in extending the principle to a case like the present where only one out of two trustees has exercised an act which ought to be done by both the trustees jointly.2. but it is pointed out that the suit ought not to have been dismissed altogether and that.....
Judgment:

1. The learned District Judge has found that one of the co-uralans did not give his consent to the grant of the kanom in question. But it is argued that nevertheless the act of one trustee, if he has consulted the other trustee as to the grant of a mortgage or any similar transaction and that trustee wrongly refused to join in the act, was valid. There is no express authority dealing with the case of two trustees, though there are a number of cases in which it has been held that where there are a number of trustees the act of the majority will be binding and valid if they had given a proper opportunity to the other trustees to consider the advisability of the act in question. But those decisions are based on the principle that unless the act of the majority was upheld in many cases the trust estate would suffer. In the case of two trustees, however, this principle will not apply because there is no majority. That is what is practically indicated in Savitri Antarjanam v. Raman Nambudri 24 M. 296. The decision in Wilkinson v. Malin (1832) 2 C. & J. 636, which is the leading case on the subject, bases it on the principle that the majority should have approved of the act. We do not think that we should be warranted in extending the principle to a case like the present where only one out of two trustees has exercised an act which ought to be done by both the trustees jointly.

2. But it is pointed out that the suit ought not to have been dismissed altogether and that the plaintiff should have a charge for the amount actually advanced by him as it went to discharge a liability on some of the trust properties including the property in the suit. We think there is force in this contention, and we, therefore, modify the decree of the lower Court by declaring a charge on the property in suit for the amount of Rs. 418-14-0. The appellants will bear the costs of this appeal.


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