FA/1082/1980 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1082 of 1980 With FIRST APPEAL No. 1083 of 1980 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SAIYADNA MOHMED BURHANUDDIN - Appellant(s) Versus ANJUM S/O AKHTARHUSSAIN MOHMADSAFI - Defendant(s) ========================================================= Appearance : MR MB GANDHI for Appellant(s) : 1, MR AJ MEMON for Defendant(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.3.1,1.3.2 - for Defendant(s) : 1.2.6 - 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 18/07/2008 ORAL COMMON JUDGMENT 1. These two appeals are directed against the judgment and decree dated 28.07.1980 passed in Civil FA/1082/1980 2/6 JUDGMENT Suit Nos. 1495 of 1974 and 1531 of 1975, whereby both the suits were dismissed. 2.0. The short facts of the case are :- 2.1. The appellants original plaintiffs had filed a Civil Suit No. 1595 of 1974 and Civil Suit No. 1531 of 1975, respectively against the defendants for possession of land bearing Survey No. 488-B-21 and Municipal Census No. 1264-1-21, admeasuring 15 feet x 19 feet, and land bearing Survey No. 488-B-21 and Municipal Census No. 1264-1-21, admeasuring about 20 feet x 12 feet, in the City Civil Court, Ahmedabad. The learned Judge, after hearing the respective parties and considering the evidence on record, dismissed both the suits. Hence, the present First Appeals. 3.0. Mr. M.B. Gandhi, learned counsel for the appellants, has contended that the appellant-plaintiff has right to file the present suit through the Power of Attorney Holder of the trustees of the appellant- plaintiff trust. In support of this submission Mr. Gandhi has strongly placed reliance on the decision of this Court rendered in the case of Saiyadna M. Burhanuddin Saheb v. Taraben Mohammed Shafi Ibrahimhakim FA/1082/1980 3/6 JUDGMENT heirs of S.I. Hakim, reported in 2006 (2) GCD pg. 1055, wherein the learned Single had relied on the decision of the Full bench and in para 11 and 12 has held as under :- “11. Mr.Gandhi, the learned advocate submitted that the decision of the Full Bench of this Court in the matter of Atmaram Ranchhodbhai (Supra) has no application to the facts of the present case. He submitted that the facts of the case before the Full Bench were peculiar and altogether different and have no similarity, even remotely, to the facts of the case on hand. He submitted that the Full Bench was considering the matter on a reference being made by learned Single Judge of this Court on two questions – (1) whether some only out of several co-trustees can effectively determine a tenancy by giving notice to quit and (2) whether a suit to evict a tenant can be filed by one or more co-trustees without joining other co-trustees in the suit. The Full Bench has taken into consideration that both questions are of frequent occurrence in cases arising under the Rent Act and even under the general law of landlord and tenant, it was felt necessary that they be considered properly and law on the subject should be finally settled. The Full Bench necessarily considered the duties, functions and powers of trustee and held that the same cannot be delegated to co-trustee. The Full Bench decided in categorical terms that, “Trustees cannot give even by unanimous resolution authority to anyone of them to be managing trustee.” Mr.Gandhi, the learned advocate submitted that in absence of any specific provision to this effect, if such occurrence is allowed, it will amount to rewriting of the document from which power flows to the trustees. He submitted that it is a matter of which judicial notice can be taken that the trustees derive their power from 'the trust deed' and in the cases where there are more than 1 trustees, it is for the settler of the trust to decide as to what power he wants to confer on the trustees whether he wants any one of them to act as FA/1082/1980 4/6 JUDGMENT a managing trustee or not. If the trust deed does not provide for a post of a managing trustee, all the trustees acting unanimously also, cannot confer the status of a managing trustee on any one of themselves. He submitted that the fact – situation of the case on hand is different then the one which was under consideration of the Full Bench and therefore, the said decision has no application to the facts of the present case. 12. This Court having found substance in the submissions of Mr.Gandhi and being convinced of the fact that the decision in the case of Atmaram Ranchhodbhai (Supra) has no application to the facts of the case on hand, holds that the Courts below have erred in holding that in light of the aforesaid decision (in the case of Atmaram Ranchhodbhai (Supra)), the sole trustee could not have appointed an estate manager and that the suit filed by the estate manager is not maintainable. “ 3.1. Mr. Gandhi, learned counsel for the appellant has also relied upon the decision of this Court rendered in First Appeal No. 967 of 1979 dated 18th March, 2004, [Raziabenu v. Shaikh Rajabali Mohmadali] wherein, same principle has been laid down. 3.2. As against that Mr. A.J. Memon, learned counsel for the respondents has supported the impugned award and submitted that suits filed by the appellant-original plaintiff through its Power of Attorney Holder and who had ceased to be the appellant-original plaintiff's Power of Attorney, it would not be open to such Power of Attorney Holder to present the suits on behalf of the FA/1082/1980 5/6 JUDGMENT appellant-original plaintiff. In support of his submission he has placed reliance on the decision of the Apex Court rendered in the case of I. Sheikh Abdul Kayum & Ors. v. Madrasai Hakimia & Coronation High School, Society & Ors. Reported in AIR 1963 SC pg. 309 wherein the Court has held that the Trustees cannot transfer their duties, functions and powers to some other body of men and create them trustees in their place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. 4.0. Heard learned counsel for the respective parties. The main contention raised in the appeals is that whether the appellant-original plaintiff has right to file suit through its Power of Attorney Holder? Having perused the record of the case, it transpires that the suit in question was filed for eviction of the original defendants on the ground of trespassers and unauthorized possession, on revocation of their license. The explanation to Section 47 of the said Act makes it clear that the appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this Section. To preserve the property from trespass or unauthorized occupation is merely ministerial act and FA/1082/1980 6/6 JUDGMENT therefore, it was open to the original plaintiff to have delegated power to file the suits against the original defendants. The plaintiff is the sole trustee of the Trust property. In view of the principle laid down in First Appeal No. 967 of 1979 dated 18th March, 2004 and also in the case of Saiyadna M. Burhanuddin Saheb v. Taraben Mohammed Shafi Ibrahimhakim heirs of S.I. Hakim (supra), wherein, this Court has also taken into consideration the Full Bench Decision which is rendered in the case of Atmaram Ranchhodbhai v. Gulambusein Gulam Mohivaddin & Anr. Reported in 13 GLR pg 828, I am of the opinion that the suits filed by the Power of Attorney Holder on behalf of the sole trustee is maintainable in the eye of law. 5.0. In the premises aforesaid, the appeals are allowed. The cabins which have been raised by the respondent-original defendants on the land bearing Survey No. 488-B-21 and Municipal Census No. 1264-1-21 shall be removed. No order as to costs. [K.S. JHAVERI, J.] /phalguni/