Veeraswamy vs Thopputhurai Melathiruvasal Sri Vara Perumal Trust by Managing Trustee Singaravel Chettiar (died) in his place Annamalai Chettiar (Substituted)

K.P. Sivasubramaniam, J.—This Second Appeal is directed against the judgment and decree of the learned Principal Subordinate Judge,

Nagapattinam, in A.S. No. 9 of 2004 in confirming that of the learned District Munsif, Nagapattinam, in O.S. No. 646 of 2000.

The defendant is the appellant.

The suit was filed by the plaintiff/Trust seeking ejectment/eviction of the defendant. The plaintiff contended that the suit property belongs to the

Trust and was let on lease to the defendant at the instance of Thopputhurai Youth Narpani Mandram on 1.12.1997, on a monthly rent of Rs. 150.

As the defendant was defaulting in the payment of rent, a notice for eviction and for arrears of rent was issued on 20.10.1998, after cancelling the

lease. A reply was received from the defendant containing false allegations, and hence, the suit.

In the written statement, the defendant contended that the plaintiff was not the actual owner of the property. One Subbiah Konar was in

possession of the property and the defendant became a tenant under him on a monthly rent of Rs. 50 with Rs. 500 paid as advance. Thereafter,

the defendant had spent a sum of Rs. 4,800 for putting up a tea stall, as the existing thatched roofing had fallen down. Thereafter, the Youth

Narpani Mandram obtained a document from the defendant to the effect that the lease amount should be paid to one Annamalai Chettiar. The

defendant had, thereafter also, spent about Rs. 2,899 for repairs of the shed. The defendant further contended that Subbiah Konar was a

necessary party and should have been impleaded as a party.

The trial Court, after consideration of evidence, found that the lease was executed between Annamalai Chettiar/Managing Trustee of the plaintiff

on behalf of the Trust and the defendant, and that the lease deed had been validly terminated by the suit notice and that there was no evidence of

receipt of any payment of rent for the subsequent period. The trial Court held that it was satisfactorily established that the property belonged to the

Trust and tenancy was entered into only between the Trust and the defendant. The suit was decreed as prayed for and the appeal filed by the

defendant was also dismissed by the appellate Court, after confirming the findings rendered by the trial Court. Hence, the above second appeal by

the defendant.

Though the learned counsel for appellant chose to raise several contentions on areas relating to facts, namely, as regards title of the plaintiff and

the rights of the defendant, she was unable to point out any finding of fact which could be termed either as improper or due to omission to consider

any relevant evidence or any perverse finding of fact. Learned counsel, however, raised two legal issues for due consideration:

(i) The suit filed through the Managing Trustee only, was not maintainable in the absence of the other trustees and hence, the suit was bad for non-

joinder of parties.

(ii) As there was no proof of the Trust having leased the property, the suit filed by the Trust is not maintainable.

In support of the contention that the suit is not maintainable at the instance of only one of the trustees, reliance is placed on the judgment of the

Supreme Court in J.P. Srivastava and Sons Pvt. Ltd. and Others Vs. Gwalior Sugar Co. Ltd. and Others, .

With reference to the first ground of the other trustees not joining in the filing of the suit, it is settled proposition that any objection to the non-

impleading of the parties should be raised at the earliest. In this case, such an objection was not raised in the written statement and consequently

not entered as an issue. It is not open to the defendant to raise the said objection either at the appellate stage or at the second appellate stage. A

perusal of the pleadings as well as discussion by the Courts below disclose that the said issue was not taken up by the defendant. On that ground

alone, the appellant cannot be permitted to raise the said objection. Further the very judgment of the Supreme Court relied on by the learned

counsel for the appellant discloses that the absence of all the trustees joining together, by itself, cannot be fatal to the suit. In fact, the Supreme

Court had positively held that one trustee can act for all others at least in these circumstances:

(i) Where the trust deed allows the trusts to be executed by one or more or by a majority of trustees;

(ii) Where there is express sanction or approval of the act by the co-trustees;

(iii) Where the delegation of power was necessary; or

(iv) Where the beneficiaries competent to contract consent to the delegation; or

(v) Where the delegation to a co-trustee is in the regular course of the business; and

(vi) Where the co-trustee merely gives effect to a decision taken by the trustees jointly.

Therefore, there are several exceptions and defences to the rule that all trustees should join together in the filing of the suit. In this case, the

appellant not having raised the issue before the lower Court, the plaintiff/respondent would be certainly prejudiced if the appellant is permitted to

raise such a contention. Therefore, I am unable to sustain the said objection on behalf of the appellant.

On the next ground that there was no proof of the trust having leased the property, both the Courts below, on a detailed examination of the

oral and documentary evidence, have categorically found that the lease was executed only by and on behalf of the trust. There is no material

forthcoming on the side of the appellant to set aside the said concurrent finding of fact.

With the result, there are no merits in the above Second Appeal. The same is dismissed. No costs. Connected C.M.P. No. 18920 of 2004 is also

dismissed.