ATMARAM RANCHHODBHAI Vs. GULAMHUSEIN GULAM MOHIYADDIN

JUDGEMENT

(1.) This Special Civil Application under Article 227 of the Constitution has been placed before us on a reference made by J. B. Mehta J. Two questions have been referred to us. One is whether some only out of several cotrustees can effectively determine a tenancy by giving notice to quit and the other is whether a suit to evict a tenant can be filed by one or more cotrustees without joining other cotrustees in the suit Both questions are of frequent occurrence in cases arising under the Rent Act and even under the general law of landlord and tenant and it is therefore necessary that they be properly considered and the law on the subject should be finally settled by a Full Bench decision of this Court.

(2.) The determination of these two questions must depend on the true nature and character of the office of cotrustees. The classic statement of the law describing what is the true nature and character of the office of is to be found in the following passage from Lewin on Trusts (Sixteenth Edition) page 181 :

(3.) It follows as a necessary corollary from the above proposition that save in certain exceptional cases to which we shall presently refer a trustee cannot delegate any of the duties functions and powers of his office to his cotrustee or to any one else. as that would be contrary to his obligation under the trust. This position of law is now well settled and there is high authority in support of it namely the decision of the Supreme Court in Abdul Kayum v. Alibhai A.I.R. 1963 S.C. 309. The following observations from the judgment of the Supreme Court in this case are very important and material in determining the controversy between the parties and they may be reproduced as follows :