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Judgment
Balasubrahmanyan, J.—This revision has been filed against the dismissal of a suit in ejectment filed by the Petitioner in the Court of Small
Causes at Madras, u/s 41 of the Presidency Small Causes Court Act, 1882.
The Plaintiff in the suit was R. Abdul Khader, Trustee of 1907 Endowment of A. Pailwan Sahib. The suit was filed in ejectment of a tenant to
whom certain property belonging to the Endowment had been demised. The tenant in question was one Fakeer Mohideen. He was impleaded as
the first Defendant in the suit. Besides, Abdul Khader, who had filed the suit on behalf of the Endowment as a trustee, there were two other
trustees for this trust by name Nitamuddeen and Abdul Ghani. These trustees could not bo prevailed upon by Abdul Khader to join him as co-
Plaintiffs to file the ejectment suit. Hence they were impleaded as the second and third Defendants in the suit.
The tenant, Fakeer Mohideen, was the only contesting Defendant in the suit. He filed written pleas before the Court. In his pleas, he inter alia
disputed the legal authority of Abdul Khader to act in isolation as a trustee of the Trust and issue a notice of termination of his tenancy or to file a
suit in ejectment in the Court as the sole Plaintiff, when there were other trustees. According to the first Defendant, the Plaintiff cannot act alone in
these matters, because he was not the sole trustee of the Endowment.
The issue before the Court was whether the first Defendant was liable to be evicted from the demised premises. The Court held that for a suit in
ejectment to be u/s 41 of the Presidency Small Causes Court Act, 1812, there must be a proper determination of the tenancy by the landlord prior
to the suit. The Court pointed out that Abdul Khader, who had filed the suit as Plaintiff was only one of the three trustees appointed to this
Endowment by an order of the High Court. It was held that when there was a plurality of trustees, all of them must act in unison, in seeking to evict
a tenant from the trust property. The Court accordingly held that the notice of termination of tenancy issued under the imprimatur of Abdul Khader
alone as a trustee of the Endowment was not valid in law. In this view, the Court held that the suit was not maintainable. The suit was dismissed on
this basis.
This revision has been brought by the trustee, Abdul Khader against the dismissal of his suit. The tenant, Fakeer Mohideen has preferred to
remain ex parte in this revision although he was served with notice. Learned Counsel for the Petitioner however has taken me through the relevant
records and also the law bearing on the subject in a manner which fairly placed the respective cases both of the Petitioner and of the Respondent.
Learned Counsel urged that the whole basis of the decision of the Court below on the question of the authority of one of several trustees to act
on behalf of trust was based on a misconception of the law. He submitted that when a body of trustees is appointed to manage an Endowment or
public trust, the usual rule may be that they should act as a body. The law, however, would not operate to drive the trust to an impossible situation
by a rigorous application of the rule. When trustees are not either willing, or able to act as a body, by reason of differences between them or some
other cause, it would be demanding the impossible to ask them to act in unison. There are illustrations as to how the law seeks to get over an
impasse in the trust board or any other circumstance in which it becomes impossible for all the trustees to act in unison. Two decisions were cited
by learned Counsel for the Petitioner, and they are K. Poranna v. P. Vishweshwarayya AIR 1962 Mys.71 and Ramesh Chandra Roy v.
Hemandra Kumar AIR 1949 Cal. 519.
In the Mysore case, it was held that if there is more than one trustee in management of a trust property, and the trust property is let out to a
tenant, then one amongst them can bring about the termination of the tenancy by issuing a notice to quit. In that case, it was not quite clear whether
the trustee who issued the notice of termination of tenancy was the managing trustee. Nevertheless, it was laid down as proposition of law that
even on the footing that all the trustees together can be regarded as landlords of the demised property, the tenant will yet not be entitled to continue
in possession of the property belonging to the trust, if any one of the trustees is unwilling to continue his tenancy and brings about its termination.
This decision is a complete repudiation of the ground on which the Court below had held that the notice issued by Abdul Khader to the first
Defendant was invalid and was not sufficient in law to terminate the tenancy.
The decision of the Calcutta High Court had to address itself, among other things, to the question as to how a suit has to be instituted on behalf
of a trust where a body of trustees are unable to pull together and figure as co-Plaintiffs. In that case, it was held that while ordinarily the trustees of
a trust must act in a body and on that principle a suit on behalf of the trust has to be brought by all of them joining together as co-Plaintiffs, an
exception to this rule would operate in a case where one or some of the trustees instituted the suit while the rest of the trustees are joined as the
Defendants, in the event of the latter not being in a position to figure as co-Plaintiffs in the suit.
The decision of the Calcutta High Court further illustrates the position that a single trustee in a body of trustees can maintain an action on behalf
of the trust. Although this point does not arise directly in this case from the decision of the Court below, the ruling of the Calcutta High Court is
helpful in one respect, namely, that where a Court finds that all the trustees figure before it in a suit or other proceeding either on the one side or on
the other there need be no technical objection to the Court proceeding to decide the case on its merits. I am, therefore, satisfied that the dismissal
of the suit by the Court below cannot be justified on any technicality.
In the course of the hearing of this revision I entertained a doubt for some time on the question whether the setting aside of the decision of the
Court below can serve any purpose at the present juncture. My hesitation arose because I found from the records in the case that Abdul Khader,
at whose instance this revision petition was brought, had been appoint of as a trustee by this Court only for a period of three years with effect from
22nd August, 1975. This means that his period of office as trustee would have come to a close, in the ordinary course, by 22nd August, 1978.
Learned Counsel for the Petitioner however, produced a subsequent order of Padmanbhan J. the Original Side of this Court in Application No.
2697 of 1971 in Original Suit No. 117 of 1954 in and by which the trusteeship of Abdul Khader had been renewed for a further term of three
years from ?2nd August, 1978. This last observation I have made only to re-assure myself that the whole thing has not become infructuous, by
efflux of time.
On my finding that the notice of termination was validly issued by AbdulKhader on behalf of the trust and on the follow-up finding that the suit
in ejectment was maintainable, further issues touching the merits of the suit will have to be gone into. The Court below had not gone into them since
it bad held that the suit is not maintainable and had dismissed it on the preliminary issue. Accordingly, while I set aside the decree of the Court
below, I direct that the Court below should take the suit again for trial, and dispose it of on the merits, in accordance with law and the evidence in
the ease.