TMI Blog1972 (3) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... e following passage from Lewin on Trusts, (Sixteenth Edition,), page 181:-- In the case of co-trustees of a private trust, the officer is a joint one. Where the administration of the trust is vested in co-trustees, they all form as to the were but one collective trustee and therefor must execute the duties of the officer in their joint capacity. Sometime, one of several trustees is spoken of as the action trustees, all but the Court knows of no such distinction: all who accept the officer are in the eyes of the law acting trustees. If any one refuses or in incapable to joint, is it not competent of the other to proceed without him, and, if for nay reason they are unable to appoint a new thrustee in the place under Section 36(1) of the Act, the administration of the trust must devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act to the both, though such action or approval must be strictly proved . The Judicial Committee of the Privy Council pointed out in Man Mohan Das v. Janki Prasad, AIR 1945 PC 23, that this was a correct statement of law applicable in England and that the same doctrine appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the principles which have been applied to all trusts in all counties. The principles of the rule against delegation with which we are concerned in the present case, is clear: a fiduciary relationship having been created, it is against by the interests of society in general that such relationship should be allowed to the terminated unilaterally. That is why the way does not permit delegation by trustee of the his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart form the delegation in the regular course of business', that is, all such function which a prudent man of business would ordinarily delegate in connection with his own affairs . These observation clearly show that whether trust is a private trust governed by the Indian Trust Act or is a public charitable or religion trust, a trustee cannot delegate any of his duties, function and powers to a co-trustee or to any other person unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation in the regular course business. There are the only fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of business. There are at least two decision, one of the Privy Council. and the other of the Calcutta High Court, which clearly show inferentially that such delegation cannot be sustained as a delegation in the right course of the business. 5. The first decision is the decision of the Privy Council in K. S. Bannmerji v. Sitanath Das, AIR 1922 PC 209. This was a case where a lease granted by a power-of-attorney holder of a trustee was challenged. The Judicial Committee of the Privy Council held that the lease was execution by a person without authority and was, therefore, void. Lord Buckmaster, delivering the opinion of the Judicial Committee, gave the following reason for taking this view:-- It was said that he was not in the strictest language a trustee; but be it so, his position was nonetheless a representative one, and it being plain that he never negotiate nor considered, nor knew of the lease until after it had been executed, if the what was done, was done by virtue of a power of attorney, it would only have been because of the power had delegated the representative authority that he possessed to a third party. The duties of Protap, however they mar be defined, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which is a good deal more than the mere employment of a machinery for carrying out the duties which attached to defendant 2 in the fiduciary character she occupies....... This decision also, therefore, shows that granting of a lease is not a matter which granting of a lease is not a matter which can be delegated by a trustee to nay other person in the regular course of business . 7. Now if the granting of lease is a matter which cannot be delegated by the trustee, it must follow as a necessary corollary that the determination of a lease of the cannot be regarded as a matter which can be delegated by the co-trustee to another co-trustee to determine a lease is of the same nature and as the power and function to grant a least and if one cannot be . Both function are affected with a fiduciary duty with respect to which all co-trustee are bound to exercise there judgment and no one co-trustee can abdicate the exercise of this judgment by delegating these function to his co-trustee or to any other person. 8. It is, therefore, clear that one co-trustee cannot given notice to quire determining the tenancy. The decision to determine the tenancy by giving notice to quire must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer and they all form as it were but one collective trustee. This position in law is now well settled and there is complete unanimity of opinion amongst the High Court about it. We may mention only a few of the decision which have taken this view: Vedkannu v. Annadan Chatram, AIR 1938 Mad 982 and Ramesh Chandra v. Hemendra Kumar, AIR 1949 Cal 519. 10. There was, however, one decision cited on the behalf of the landlord to which we must refer before we part with this question. That was the decision of the Supreme Court in Ishwardas v. Maharashtra Revenue Tribunal, AIR 1968 SC 1364. This case arose out of an application made by the managing trustee of a public charitable trust for possession of a certain portion of the land leased out to a tenant, under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The ground on which possession was sought was that the managing trustee bona fide required the land for cultivation it personally. Section 2(12) defined the expression to cultivate personally to mean to cultivate on one's own account. The tenant resisted the application on a two fold ground. One ground was that the managing trustee was n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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