TMI Blog1981 (10) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff that he was appointed on June 11, 1969 for a period of one year i.e., from June 11, 1966 to June 10, 1970. 3. It appears that the schooled was closed within that time after appointment and the defendants did not pay the plaintiff the agreed amount of salary, and therefore, the plaintiff was required to file a suit for recovery of his pay. The plaintiff had, therefore, filed an earlier suit, being Regular Civil Suit No. 529 of 1969 to recover his salary and it appears that suit related to the first six months of academic year 1969 70. That suit came to be decreed and the decree in that suit is on record which shows that the plaintiffs claim to the extent of six months period was decreed on the basis that the defendant-Trust committed breach of contract. 4. In this suit, which is filed by the plaintiff the plaintiff says that he was ready and willing to work as Head Master for the whole year but Vidyalaya was closed and the defendant-Trust is liable to pay for the remaining six months of the academic year 1969-70. 5. Defendant-Trust raised a plea that the suit is barred by the provisions of O. 2 R. 2 of the Civil P. C., in view of the judgment and decree passed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the resuit the learned District Judge allowed the appeal and set aside the decree of the trial Court, and dismissed the suit of the plaintiff by his judgment and decree, dated Feb., 9, 1976. The plaintiff being dissatisfied with this appellate decree has filed this second appeal in the High Court. 8. It may be noted here that the first defendant is a Trust and there were as many as defendants Nos. 2 to 11 as trustees originally on record. Mr. V. Z. Kankaria, the learned Advocate for the respondents had told that defendants Nos. 3, 5 and 6 were represented by lawyers and original defendant No. 11 died and all other respondents were ex parte. Original defendant No. 2 Pandharinath Thapade is not the appellant before me. 9. Mr. J. R. Lalit for the appellant has raised preliminary point that the appeal filed by defendant Nos. 3, 5 and 6 before the Appellate Court is incompetent and defective, because the other defendants who were co trustees are not jointed in the said appeal either as appellants or respondents. Secondly, he says that as the decree is only passed against the Trust, the appeal filed by defendants Nos. 3,5 and 6 is untenable, because they cannot be said to be the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appeal filed by defendants Nos. 3,5 and 6 is untenable. Because they cannot be said to be the persons aggrieved or adversely affected by the decree. I have already quoted the extract of the operative portion of the decree and from that it appears that that decree does not show that original defendants Nos.2 to 11 are made liable under the said decree. 10. Mr.Kankaria, the learned Advocate for the respondents has urged before me that the framing of the appeal before the Appellate court is not defective, because defendants Nos.3,5 and 6 are co-trustees along with other trustees and the Trust is duly represented by them and their interest being joint, they are entitled to challenge the decree, which adversely would affect the Trust. He invited my attention to the provisions of S.2 (18) of the Bombay public Trusts Act, 1950 (hereinafter referred to as the Trust Act ) ,which reads thus:- 2 (18) trustee means a person in whom either alone or in association with other persons, the trust property is vested and includes a manager. Mr.Kankaria also invited my attention to the definition of 'public Trust' and contended that any one of the trustees being interested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r co-defendants against whom the decree was not passed by the trial court, in my opinion, the decree of the trial court has become final and if it is allowed to be reopened at the instance of defendants Nos.3,5 and 6 as the remaining co-defendants are not parties to this appeal as stated above, I think that it will give rise to conflicting decrees. If the decree is joint and one, then it is difficult to see how in this particular case at least defendants Nos.3,5 and 6 could represent the other trustees of the Trust when defendant No.2 was actually described as managing trustee as stated above In the judgment. 12. The learned Advocated Mr.Kankaria further contended that In view of the provisions of O.41 R.4 of the civil P.C. as the trust properly vests in the trustees as stated in the definition of trustee contained in S.2 (18) of the public Trusts Act and in view of the cases, which are cited by him to support his contention that the appeal before the Appellate court was competent one, he also relied on the provisions of O.41 , R.33 to support his contention that the decree can be passed against non-appealing defendants and the Appellate court is entitled to exercise power und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention to a case reported in vendakannu Nadar v.Naguneri Taluk Singikulam Annadana chatram, AIR 1938 Mad 982 and reliance was placed on Head Note (e), which reads as follows : The general principle of law is that the office of a trustee, irrespective of the number of trustees,is a joint one and co-trustees from , as it were one trustee and must therefore execute the duties of their office jointly. Hence 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. Following ratio of this decision, I see no difficulty in accepting the contention raised by Mr.Lalit. It is further found in the said authority that the other co-tustees were not made parties and even formal amendment application for bringing them on record was not made. In this case also, Mr. Kankaria has also not made any attempt to make any application to bring the other trustees on record. Therefore, in my opinion, the appeal filed before the District court is defective. Mr.Lalit also derived support fro the Gujarat High court (FB) , case reported in Atmaram Ranchhodbhai v.Gulamhus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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