TMI Blog1983 (9) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... intiff against the defendant and also a decree for ₹ 99.00 as rent/damages. Shri Duli Chand has then appealed to this court. (3) It may now be mentioned that in the written statement filed in the suit, it was claimed by the defendant that the plaintiff was neither the owner of the property nor a legal entity and there was no locus standi to file the suit. It was further claimed that Shri Babu Ram's tenancy had not been terminated, and hence, all the legal representatives of Shri Babu Ram including the defendant were tenants by operation of law ; also, there were other legal heirs in possession who were necessary parties in the suit. Some other objections were also raised. A issues were number of framed in the suit, but according to the judgment were not praised .. (4) Mr. Chitkara on behalf of the appellant passed number of issues at the hearing of the appeal before us. He submitted that the finding on issue No. 2 was erroneous. This issue was as to whether the plaintiff had locus standi to file the suit. Mr. Chitkara urged that a Trust is not a legal entity and, Therefore, cannot sue. It was also submitted that the suit was filed through the Secretary of the Trust, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly the implications of Mr. Chitkara's contentions, it is necessary to note what is stated in the plaint. It is stated that the plaintiffs are owners of the property and Shri Babu Ram was a statutory tenant therein and his contractual tenancy had been terminated by a notice dated 19th May, 1971 served by Shrimati Vidya Wati, widow of Shri Tirlok Chand who was the owner of the property. The said Shri Babu Ram became a statutory tenant from 1st July, 1972, and he had also sent a reply to the notice through Shri R.K. Sharma, Advocate, which was dated 27th May, 1972. On the death of Shri Babu Ram, the tenancy rights stood terminated as there was no inheritance of the same. Consequently, the defendant's occupation was illegal, unlawful and unauthorised. However, the defendant refused to hand over the possession of the premises, hence the suit. (8) There is no reference in the entire plaint to the way in which the plaintiff became the owner of the property and nor is there any reference as to how the suit has been filed through the Secretary of the Trust. In fact, there is no mention of the Trust in the body of the plaint. (9) A preliminary objection was taken in the writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut had refused. In these circumstances, the Trust decided to file a suit and Shri Tara Chand Jain was authorised to file the suit, sign the plaint, engage Advocates and so on, and take other proceedings. (15) The question that requires decision is whether this resolution authorises the said Trustee Shri Tara Chand Jain to institute the suit in the name of the Trust or, whether it is necessary that all the trustees should join in the suit. (16) It is well-known that a Trust is not a legal entity as such. In fact, a Trust may be defined as an obligation imposed on the ostensible owner of property to use the same for a particular object for the benefit of a named beneficiary or a charity. Thus all Trustees in law are owners of the property but they are obliged to use the same in a particular manner. If a number of trustees exist, they are joint owners of the property. It is not like a Corporation which has a legal existence of its own and Therefore can appoint an agent. A Trust is not in this sense a legal entity. It is the trustees who are the legal entities. Section 48 of the Indian Trusts Act, 1882, states:- WHEN there are more trustees than one, all must join in the exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the substantial point in that particular case. (17) On the other hand, there is a Full Bench judgment of the Gujarat High Court which seems in our view to take the right view. This is Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin and another, AIR1973Guj113 . The judgment of Bhagwati C.J sets out the facts in that case which was a reference on this very question, i.e., as to whether some out of several co-trustees could file a suit for eviction. And also, on the question whether some out of several co-trustees could determine the tenancy. It was held on both points that all the trustees must join together. On the second question, namely, as to whether a single trustee could maintain the suit) it was found that there was a unanimity amongst all the High Courts on this question and the conclusion of the Full Bench was as follows:- WE are, Therefore, of the view that unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease. No one single co-trustee, even he be a managing trustee unanimously chosen by the co-trustees, can maintain such a suit again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit can be filed in the name of a trust. This is because there are several reported, decisions of this type showing that suits have been filed in the name of a Trust. There are two ways in which this happens-(a) the trustee deed permits some specific trustee to file a suit or (b) the trust is registered under the provisions of the Societies Registration Act and the provisions of that Act allow the suit to be filed according to the provisions contained therein. There is also the case where all the trustees are joined, but the trust is also named as a party for convenience. The reports are usually silent as to whether all the trustees have been joined or not. Then, as in the case of other corporations or bodies, where the Managing Director, or Chairman or President of the Society, etc., can sue, it is taken for granted that also in the case of a trust, suits can be filed in a similar manner. This is an erroneous impression, but a mistake like it can pass unnoticed in view of the absence of much case-law on this point. (22) Then, we have to consider the point of view of the trust which is interested in the property now involved in the suit. It is a small charitable trust seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lunder, he had caused injury to his opponent which may not be company sated for by an order of costs. There are also other cases of a similar type. Generally the practice of the Courts is to be guided by the interest of justice. We are of firm view that there has been an inadvertent error on behalf of the plaintiff who firmly believed that they were entitled to sue in the name of the Trust through one of its trustees after authorisation from the other co-trustees. That may be described as a blunder, or negligence or inadvertence. We do not think that this is a case in which the plaintiff should be forced to withdraw the suit and file a fresh suit. (26) We would accordingly accept the application for amendment of the plaint on payment of ₹ 200.00 as costs. (27) We would accordingly accept this appeal and set aside the judgment and decree of the trial Court. The appellant will get costs in this Court. In view of the amendment permitted by us, the suit will be remanded back to the trial Court for trial. The costs of this appeal as well as the other costs for amendment will be paid to the defendant before the amended plaint is taken on record. The trial Court will perm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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