Vaidyaratnam P.S. Varier'S Arya ... vs K.C. Vijaikumar
1989 Latest Caselaw 423 Del

JUDGMENT

P.N. Nag, J.

(1) This is a suit for recovery of possession of the premises described in schedule attached to the plaint and also for payment of damages amounting to Rs. 1,96,000.00 together with future damages for use and occupation of the premises @ Rs. 100.00 per day from the date of suit till the plaintiff gets actual possession of the premises.

(2) The suit is grounded on the allegations that the plaintiff is the Managing Trustee of Arya Vaidyasala, Kittakkal (hereinafter referred to as the 'Vaidyasala'), a charitable trust, and is competent to file the suit. The defendant is residing on the second floor of building, E-76, South Extension Part I, New Delhi belonging to Vaidyasala in which the plaintiff is also running its Medical Centre at New Delhi. In fact this Medical Centre of the plaintiff at New Delhi was started in February, 1982 and with a view to establishing necessary contracts with the Govt. Departments, Foreign Embassies, visiting dignitaries of foreign countries etc. and. having necessary liaison work at New Delhi for the Medical Centre, the defendant was appointed as the Coordination Officer at New Delhi with effect from 1st May, 1982. Since the defendant was residing in are mote area of Delhi, at his request, he was allowed to use one room and kitchen on the 2nd floor of the premises, as. a special case and on a temporary basis, on the. specific understanding that the room and kitchen which are really a portion of the Guest House of the Vaidyasala buildings at South Extension, New Delhi would be given vacant possession to the plaintiff as and when required by the plaintiff. It was also made clear that this permission to use the room and kitchen on a temporary basis would not give any claims to the defendant for residence or H.R.A. in lieu of residence at a future date etc. The defendant after accepting these terms and conditions was allowed lo occupy the aforementioned premises.

(3) The defendant worked as Coordination Officer for more than 3-1/2 years &ad by this time the Medical Centre at New Delhi became well established and there was not much of coordination work to be attended to and it was found that the work of the Vaidyasala could be. conveniently got done through the Manager and Physician in charge of. the Medical, Centre and that the continuance of tns post of Co-ordination Officer at New Delhi was not only counter productive but was superfluous and unnecessary. Therefore, the Board of Trustees vide resolution No. 14(d) dated 19th Jnuary, 1986 decided to abolish the post of Coordination Officer at New Delhi with the result that the services of the defendant were terminated w.e.f. 31-1-1986 (A.N.) by proceeding No. 36740 dated 24-1-1986 after tendering to the defendant a. cheque for Rs. 9,427.50 being 3 months' salary in lieu of notice and 2 months' salary as ex-gratia. compensation for the services rendered by him. The defendant was further directed to vacate the portion of the building in his occupation Vaidyaratnam P.S. Varier's Arya Vaidyasala Kottakkal, Malappuram District Kerala state Represented by its Managing Trustee, P.K.Varier Vs. Shri K.C.Vijai Kumar within four weeks w.e.f. 1-2-1986, i.e., on or before 28-2-1986. The defendant did not accept the cheque nor did he vacate the premises occupied by him as residence though he was given sufficient time to vacate in spite of lawyer's notice dated 6th May, 1986 but of no use.

(4) In substance the defendant was given only leave and license to use the portion of the Guest House for residence temporarily and. he had no right to continue to occupy the premises after his services were terminated on the abolition of the post as the permission granted to use the premises by the defendant was withdrawn and the license was revoked. Further- more the premises occupied by the defendant can easily fetch Rs.100 per day and the plaintiff is entitled to recover damages in occupation of the defendant @Rs. 100 per day. Hence this suit for payment of damages as well.

(5) In the written statement the defendant has taken various preliminary objection as well as filed reply on merits. In substance the objections are that the suit is not maintainable as the trust is not a legal entity and is not entitled to sue in its own name. Further the introductory para of the plaint has not been admitted in which the averment has been made by the plaintiff that the plaintiff being managing trustee is competent to file this suit.

(6) The defendant was earlier employed with Metallurgical & Engg. Consultants (India) Ltd., a Government of India undertaking, at in monthly salary of Rs. 1,600 p.m. and the present salary attached to that post is Rs. 3,300 p.m. plus perquisites. In February, 1982 a branch of the trus,t was inaugurated at E-76. New Delhi. South Extension Part 1. The plaintiff had. sent a physician to Delhi from Kerala for conducting its business and to look after its affairs but he had no contacts in Delhi nor did he know the local language, the Managing trust (M.T. for short) persuaded the respondent to work for the trust for the Delhi branch on a monthly salary of Rs. 1,500 with the understanding that he would be made a trustee of the trust. The defendant was given a designation of Coordination Officer on his appointment with the Trust and his duties included day-to-day office work, writing account books, attending correspondence, telephone calls, receiving people at airport, railway station, but stands, meeting different Govt. officials, calling at Embassies, providing travel arrangements and hotel accommodation to all the officials etc. In short he was supposed to do anything for the plaintiff. The defendant was earlier living at Mayur Vihar in a rented accommodation. Since the plaintiff wanted 24 hour services of the defendant, he was requested to temporarily shift to the premises of the plaintiff which the defendant did unwillingly to help the plaintiff- All the trustees of the plaintiff, including the defendant, are inter-related. In the capacity of Coordination Officer the defendant rendered exceptional good services to the Trust inasmuch as there was no provision for giving exemption from payment of income tax for religious and charitable trust if the trust did some business but because of the exemplary services rendered by the defendant to the trust such an exemption was given to the trust. In fact such an exemption was got by the defendant because of high connection with high dignitaries, including the then Finance Minister Shri Pranab Mukherjee as otherwise such an exemption could net have been possible and this step was very much appreciated and acknowledged not only by the Mt but by all the members of the trust, On persuation by the Mt, the defendant left the Mayur Vihar accommodation and shifted to the premises of the plaintiff on the condition that he would not be asked to vacate the same on any pretext whether he was in the services of the plaintiff or not The accommodation was given as a consideration for defendant's out of turn services to the plaintiff, while working with the plaintiff the defendant had to perform another impossible task. The plaintiff wanted to net up a hospital and a research centre in Delhi and for which the defendant got a plot of land of more than 2 acres in Delhi allotted to the plaintiff, although the earlier application of the applicant for allotment of such a plot of land had been rejected by the DDA. and this task was made possible because of his high connections and after having met Shri Jag Mohan the then Lt. Governor of Delhi. It has been reiterated time and again by the defendant that because of the distinguished and exemplary services rendered by him to the Trust the premises in dispute were given to him on a permanent basis and as a matter of right and not on the mercy of anybody and the plaintiff has no right to eject him from the premises. The defendant has further stated that these premises do not form part of any guest house and the usage of the word "Guest House" is motivated. The building is not used as a guest house nor can it be used as a guest house because there is no facility of a guest house available in the premises. There is no regular water supply on the second floor. The defendant was not keen to move to the Vaidyaratnam P.S. Varier's Arya Vaidyasala Kottakkal, Malappuram District Kerala State Represented by its Managing Trustee, R.K. Varier Vs. Shri K.C. Vijai Kumar present premises and for some time he maintained two establishments- one at Mayur Vihar and the other at present premises- only with a view to render 24 hours service to the plaintiff he left the Mayur Vihar and on the understanding given. by the plaintiff to him that he would have life interest in the said premises and would not be asked to vacates at any time " even after termination of his services. These premises have been given to the defendant permanently by the trait because of exceptional services rendered by him to the trust, as would be explained hereinafter. The suit has not been valued for the purpose of court fees and jurisdiction correctly.

(7) Out of the pleadings of the parties the following issues were framed on 7th September, 1988 : 1. Whether the suit is properly valued for the purpose of court fee and jurisdiction ? 2. Whether the plaint has been signed, verified and the suit instituted by a duly authorised person ? 3. Whether the suit is not maintainable by the plaintiff ? 4. Whether the premises in suit wars given to the defendant on permanent basis in consideration of his extraordinary services to the plaintiff, as alleged ? 5. Whether the plaintiff is entitled to recover damages? If so, at what rate and for what period ?

(8) At the very outset I propose to deal with Issue No. 4, whether or not the premises were given to defendant permanently on consideration of his extraordinary services rendered to the trust, as the case mainly depends upon the decision of such an issue.

(9) The plaintiff seriously urged that the defendant has no right to retain the premises in dispute. The plaintiff strenuously urged that the defendant has no right to retain the premises in dispute after the termination of his services and these premises were never allotted to him on permanent basis in consideration of services rendered by the defendant to the plaintiff. In this connection he referred to a letter dated 15-12-82, Exhibit P-l, written by U.K. Warier, General Manager of the plaintiff to Shri T. V. Ramankutty, Manager, Kattakkal Arya Vaidya Sala Branch, E-76, South Extension Part-1, New Delhi in which it was stipulated : "Sri Vijay Kumar can use one roo mand the Kitchen on the second floor of the branch premises as a, special case and on a temporary basis. The room and the kitchen will be given vacant possession to us as and when we find it necessary. The permission to use the room and kitchen temporarily does not give any claim to Sri Vijay Kumar for residence of H.R.A. in lieu of residence at a future date. If the above terms are agreeable, please get his signature in the copy of this letter and return the same turn our records."

(10) These conditions mentioned in Ex. P-l were accepted by the defendant and. his acceptance dated 20-2-1982 were noted on the letter itself. Ex.P-2 is a noticed noted on the letter itself. ce dated 6th May, on behalf of the plaintiff to the defendant which has explained the whole position that the defendant had requested that he be permitted to use a portion of the guest house on the second floor and leave and license to , use a portion, of. the guest house for defendant's residence was granted and he had been using the portion with permission subject always to the requirements of the plaintiff to use the guest house. According to the said notice consequent on title termination of his service? w.e.f. 1-2-1986 as per proceedings dated 24th January, 1986 the defendant had ceased to bs an officer of plaintiff and the permission granted to him to use the premises had been withdrawn and the license stood revoked. Despite the termination of service, withdrawal of permission and expiry of notice period to out the defendant continued to remain in the premises and, therefore, though the legal notice he was asked to quit the premises as also to pay damages for illegal use and occupation from 1-3-1986 (a). Rs. 100 per day. Ex-.P-3 is a letter dated, 1.3th day, 1986 written by the defendant which shows that the defendant had received notice dated 6-5-1986 sent on behalf of the plaintiff. Ex. P-4 to P-7 are the proceedings of the Board relating to the appointment of the defendant in the trust, putting him on probation and approving his probation etc. Ex. P-8 is a resolution No. 14(d) dated 19-l-1986 where the trustees have resolved to abolish the post and to terminate the services of the defendant Vaidyaratnarn P.S. Varier's Arya Vaidyasala KottakkaJ, Malappuram District Kerala State Represented by its Managing Trustee, R.K. Varier Vs. Shri K.C. Vijai' Kumar w.e.f. 31-1-1986 (A.N.). In the said resolution the defendant has also been asked to vacate the portion of the building in his occupation within four weeks from 1-2-1986, i.e., on or before 28-2-1986.

(11) The Mt, P. K. Warrier, appeared as Public Witness 2 and deposed that he was the Mt of plaintiff trust since 1954 and defendant was appointed as Coordination Officer in the Trust firstly on probation and later on he was confirmed. However, defendant himself contacted him and offered to work with the plaintiff. On perusal of these documents and the deposition of Public Witness 2 it becomes clear that the premises in dispute were given to him for use and occupation as & special case and on a temporary basis. Further it was stipulated that the defendant will hand over the vacant possession of the premises whenever it was found necessary. permission to use the room and kitchen temporary would not give any claim to ti'i^ defendant for reside ice of H.R.A. in lieu of residence at a future date and these conditions contained in Ex. P-1 were accepted by him. On the other hand I do not find any single document on record produced by the defendant on the basis of which it can be said that these premises have been given to the defendant permanently and as a matter of right and life interest in view of his distinguished and exemplary services rendered by him to the trust. Counsel for the defendant also could not show any such document during the course of hearing. The defendant no doubt has tried to substantiate that he has rendered good services to the Trust but he has not been able to show a single document which could show that the premises were given to the defendant on permanent basis in consideration of his extraordinary services. In the absence of any documents to the contrary proved by the defendant I cannot but hold that the premises in dispute were allowed to "be used by the defendant on the specific condition that he would be given vacant possession whenever is found necessary and the same have been given to him purely on temporary basis and as a special case. This issue is, therefore, decided in favor of the plaintiff and against the defendant.

(12) In support of Issue No. 1 whether the suit has been property valued for the purposes of court fee and Jurisdiction, Public Witness I has stated that he has prepared the plan of the premises in dispute. He had prepared a valuation report of the property some time in February, 1987 and no question in cross-examination has been put to him. Therefore, the valuation report as prepared by Public Witness I has go to be accepted. In paragraph 12 of the plaint the valuation for the purposes of court fee and jurisdiction has been assessed at Rs. 1,96,000 collectively. Nothing has been shown that such a valuation for the purposes of court fee and jurisdiction cannot be as assessed collectively, and this has to be assessed separately. In view/of this I decide issue No. 1 in favor of the plaintiff and against the defendant.

(13) Issues Nos. 2 and 3 can be. conveniently decided together which I propose to deal next. Counsel for the defendant vehemently contended that the suit is not maintainable by the plaintiff, nor has the plaint been signed, verified and instituted by a duly authorised person and, therefore, the suit must be dismissed on this ground only. In support of his submission he stressed that law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction affecting the trust property and a majority cannot bind the trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one body in the eye of law and all must act together. In the evidence this has already come that there are seven trustees. The present suit as such without impleading all the seven trustees in the suit is not maintainable, nor the managing trustee can alone sign and verify the pleadings and institute the suit. In this connection various authorities have been cited : Lala Man Mohan Das v. Janki Prasad and others (AIR 1945 Pc 23)(l), L. Janakirama Iyer and others v. P. M. Nilakanta lyer & others ; Sheikh Abdul Kayum and others v. Mulla Alibhai and others ; Birdhi Chand Jain Charitable Trust v. Kanhaiyalal Shamlal (1972 Rlr 142) (4), Amritlal Nathubhai Shah and others v. Union Government of India and another , M/s. Shanti Vijay &Co. etc, v. Princess Fatima Fouzia and others; and Duli Chand v. M/s. Mahabir Pershad Trilok Chand. Charitable Trust. Delhi (AIR 1984 Del. 145) (7). It is not necessary to discuss all the authorities in the present case as all these authorities lay down and reiterate the same principle that all the members of trust must be joined as parties in order to maintain the suit subject Vaidyaratnam P.S. Varier's Arya Vaidyasala Kottakkal, 133 Malappuram District Kerala State Represented by its Managing Trustee, R.K. Varier Vs. Stiri K.C. Vijai Kumar of course to certain stipulations laid down in the law. However, suffice it to refer to these authorities.

(14) In a case-M/s. Shanti Vijay & Co. etc, v. Princess Fatima Fouzia & others, the Supreme Court in this context leas held : "The law governing the execution of trusts is well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction affecting the trust property and a majority cannot bind the trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one body in the eye of law and all must act together. This is, of course subject to any express direction given by the settler. The Judicial Committee in Man Mohan Das v. Janki Prasad (1945) 72 Ind App 39(PC) quoted a passage from Lewin's Law of Trusts, 15th Edn., p. 190 to the effect. In the case of co-trustees the office is a joint one. Where the administration of the trust is vested in co-trustees they all form as it were but, one collective trustee, and, therefore, must execute the duties of the office in their joint capacity. It is not uncommon to hear one of several trustees spoken of as the acting trustee but the Court knows no such distinction : all who accept the office are in the eye of the law acting trustees. If any one refuses or be inescapable to join, it is not competent for the others to proceed without him. but the administration of the trust must be in that case devolve upon the Court. However, the act of one trustee done with the sanction and approval of a co-trustee may be regarded as the act of both. But such sanction or approval must be strictly proved."

(15) Reference may also be made to a case in Duli Chand v. M/s. Mahabir Pershad Trilok Chand Charitable Trust (AIR 1984 Del. 145). Tn this case. the question arose for consideration was whether the suit by co-trustees on the basis of resolution passed by all other co-trustees unanimously authorising that trustee to file the suit for recovery of possession of the premises from a person who claims to have acquired rights of tenancy. This question was, however, considered in the context of allowing or disallowing the amendment to the effect whether all trustees should be added as parties to the suit as plaintiffs. The question whether the suit filed by one of the trustees against a trespasser is maintainable was not the issue before the Court. In this connection the relevant observations are produced below : "16.. . There is, therefore, a very grave doubt in our mind as to whether a single trustee can must and whether he can sue in the name of the Trust. It is also very doubtful whether a resolution can be passed authorising only some of the trustees to file a suit. But, that resolution had not been proved. It was also observed : 'But the trust is not a legal person and the description of the petitioner is, therefore, wrong. It could have been amended, if necessary. But that question does not now arise.' While referring to decision in Atmaram Ranchhodbhai v. Gulamhusain Gulam Mohiyuddin , the Supreme Court held : 17. . . . 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 (at p. 117) :- "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 co-trustees, can maintain such a suit against the tenant without joining the other co-trustees. All co-trustees must be joined in The suit and if any one or more of them are unwilling to be joined in the suit as plaintiffs or for some reason or the other it is sot possible to join Vaidyaratnam P.S. Varier's Arya Vaidyasala Kottakkal, Malappuram District Kerala State Represented by its Managing Trustee, P.K. Varier Vs. Shri K.C. Vijai Kumar them as plaintiffs, they must be imp leaded as defendants so that all co-trust's are before the court."

We completely agree with this view and are, therefore, of the opinion that the suit could not have been maintained by one of the co-trustees and further, no resolution passed unanimously by all the other co-trustees could authorise one of the trustees to file the suit. The position of trustees is exactly the same as of any other set of co-owners who must necessarily join together to file a suit."

(16) The above argument of counsel for the defendant has lost complete significance after allowing I.A. 6498/89 on 19th September, 1989 whereby all the trustees have been imp leaded as plaintiffs. It may, therefore, not be necessary to go into this question as all the trustees are now the plaintiffs in the suit. However, since the issues have been framed by the court on this aspect and counsel for the defendant has taken pains to address the court on this question I propose to examine his issue as well.

(17) It is no doubt true that all the trustees must join in a suit in order to maintain it and delegation is non permissible unless the trust deed so provides or the delegation is in the regular course of business or the delegation is necessary or the beneficiary being competent to contract, consents to the delegation. Such a sanction or approval or delegation by other trustees to one trustee must be specifically provided. But perhaps, to my mind, this principle cannot be extended to a case where the suit is filed by one trustee against a mere trespasser who ha? no right to retain the premies. As laid down by this court in Duli Chand's case (supra) the position of trustee is exactly the same as to any other set of co owner who must necessarily join together to file asuit. But there is an exception to this rule that one of several co-owners can maintain as action in Ejectment against a trespasser without impleading the other co-owners as parties thereto. The reason obviously is that a co-sharer or co-owner having an interest in the property jointly with others is apparently a person with a better title then a trespasser. Following this principle there is no reason why the suit by One co-trustee should not be maintainable against a trespasser. Similar view has been taken by a Division Bench of this Court in Shri Mahavir Prashad v. Shri Sukhdev Mangia and another 1983(3) Delhi Lawyer 260-DB(9) and held that the suit ny a co-owner of the property against the trespasser without impleading other co-owners is maintainable. In the present case since the suit has been filed by one of the trusteos, i.e.. Managing Trustee who is placed exactly in similar situation as that a co-owner, the suit filed by him must be held to be maintainable against the defendant. The authorities cited by the counsel for the defendant are distinguishable in as much as those authorities do not discuss the maintainability of the suit filed by one of the trustees for recovery of possession against a mere trespasser. However, at cost of repetition it may be stated since all the trustees have now become the plaintiffs in the suit, this objection of the defendant even otherwise is not maintainable and, therefore , both the issues are decided in favor of the plaintiffs and against the defendant. Furthermore I have already observed and. held in l.A. 6498/89 in this case decided today that no doubt the suit has been filed by the trust but that has been filed through the Managing Trustee, Shri P. K. Variar and, therefore, it would not be unreasonable to hold that one of the trustees, i.e., the Managing Trustee is the plaintiff in the suit in case it is held that the trust is not a legal entity. If has been stated in the plaint as well as in I.A. 6498189 supported by an affidavit that the suit has been filed by the Managing Trustee on the basis of authorisation by the other trustees of the trust and; thenefore, there cannot be any dispute that the other trustees, who have since been arrayed as plaintiffs 2 to 7, have full Knowledge of the institutions of the suit. It is settled principle of law that where several persons institute a suit, it is not necessary that all should sign the plaint, It is sufficient that one of them signs the plaint with the other plaintiffs' knowledge and authority. There is no rule providing that a person named as co-plaintiff not to be treated as plaintiff unless he signs and verifies the plaint. In the face of the settled proposition of law I have no hesitation to hold that the plaint has been signed, verified and instituted by a duly authorized person.

(18) This takes me to the last issue. i.e., Issue No.5 Public Witness 1 as deposed that the area in dispute is 750 sq. ft. in posses- Vaidyaratnam P.S. Varier's Arya Vaidyasala Kottakkal, Malappuram District Kerala State Represented by its Managing Trustee, R.K.Varier Vs. Shri K.C Vijai Kumar sion of the-defendant and the prevalent rate Rs. 4.00 per sq. ft per month, la other words, the prevalent rate is Rs. 3,000.00 p.m. for the premises in dispute, i.e., Rs. 100.00 per day. Again, 'no' question has been put to the witness by the defendant and in the absence of which this prevalent rate has to be assured to be true and, therefore. Issue No. 5 is decided in favor of the plaintiffs and against the defendant, and as such the plaintiffs, would be entitled to recover damages from the defendant @ Rs. 100.00 per day as prayed for by the plaintiffs.

(19) In the resalt, I hereby pass a decree in favor of the plaintiff and against the defendant for possession of the premises in dispute and for Rs. 1,96,000.00 as damages for use and occupation of the premises up to the date of the suit together wiht future damages for use and occupation @ Rs 100.00 per day from the date of filing of the suit till the plaintiffs get actual possession of the premiss. The plaintiffs shall also be entitled to costs.