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Judgment
Ghulam Mohammed, J.—This civil revision petition is filed against the order dated 24-10-2008 passed in IA No. 787 of 2007 in OS No. 199 of 2007 by the VII Addl. District Judge, (FTC), Visakhapatnam.
The facts stated are:- Faza Foundation Trust-revision petitioner herein filed the above application under Rule 32 of Civil Rules of Practice seeking to permit Mr. Munnavar H. Mehdi, S/o. late Hussain S. Mehdi, who is one of the attorneys of 2nd defendant under Power of Attorney dated 29-8-2007, to attend to all the legal matters relating to 2 defendant.
Learned Counsel for the revision petitioner strenuously contended that the petitioner being a trust called Faza Foundation Trust, since there is no prohibition, as such, to appoint a power of attorney u/s 47 of the Indian Trusts Act, the Court below ought to have allowed the application. Learned Counsel also contended that mere conferring of powers on the power of attorney does not amount to abdication of powers and duties by the trustee and a trustee of a Trust has power to appoint an attorney to represent the trust. On the other hand, learned Counsel for the respondents submitted that inasmuch as no reasons are stated by the Trustee in seeking to delegate his functions to an absolutely stranger and there was no resolution of the trust delegating such functions to an atterney, the Court below rightly dismissed the application.
Faza Foundation Trust is stated to be a charitable trust situated its office at Visakhapatnam. It has come on record that the trustee and the power of attorney sought to be appointed reside at Visakhaptnam in the same town. A person representing the Trust, it is necessary, that he must know about the affairs of the Trust and as far as possible he must have personal knowledge of day to day activities of the Trust.
The rules against renunciation of the trust by a trustee and against delegation of his functions by a trustee are embodied in Sections 46 and 47 of the Indian Trusts Act. These sections read: thus:
A trustee who has accepted the trust cannot afterwards renounce it except (a) with the permission of a principal Civil Court of Original Jurisdiction, or (b) if the beneficiary is competent to contract, with his consent, or (c) by virtue of a special power in the instrument of trust.
A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
The Apex Court in Abdul Kayam v. Alighai, dealing with an identical issue, held thus:
....trustees cannot transfer their duties, function and power to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. A person who is appointed a trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities expect with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself. Nor can a trustee delegate his duties or any of the function except in some specific cases....
This Court in Sree Mukhya Pranaswami v. TK Raghavendra Rao 1997 (4) ALD 244 dealing with a similar issue at paras 11 and 12 held thus:
The explanation to Section 47 specifically provides 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 the section. Illustration (b) to Section 47 shows that when a trustee of certain property has got power to sell the same, he may employ an auctioneer to effect such sale without having the necessity of himself conducting the sale. Illustration (c) to Section 47 conveys the impression that when number of houses which are let out on monthly rents or bequeathed to a particular person in trust to collect the rents and pay them to another person who is the beneficiary, such trustee may employ a proper person to collect such rents for the purpose of paying them to the beneficiary. It is clear from such illustrations and the explanation provided in Section 47, that a trustee can appoint an agent to perform certain functions which do not involve any independent discretion to deal with the trust properties.
In the present case, the power of attorney holder is appointed by the trustee of the plaintiff only for the purpose of filing the suit for recovery of possession from the trespassers. Filing of such a suit on behalf of the trustee in his capacity as a power of attorney holder does not involve any independent discretion, nor does it involve any acts of administration of the trust property or acts of dealing with the trust property, such as, granting of lease-hold rights in favour of the third parties or determining the lease by issuing quit notice or creating mortgage over the trust property or selling away such property, etc. The power of attorney holder in the present case is not conferred with any such powers to deal with or administer the trust property. He is merely empowered to file the suit after the plaintiff represented by the trustee has come to the conclusion on his own independent thinking that the defendants who are considered as trespassers should be evicted from the suit property which belongs to the plaintiff.
In In Re: H.E.H. The Nizam''s Jewellery Trust, , the Apex Court at the relevant paras held thus:
In the case of a private trust, where there are more trustees than one, 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 settlor.
It follows as a necessary corollary, that where there are several trustees they must act unanimously in making a sale or a contract of sale, unless it is provided otherwise by the terms of the deed. In exercising the power of sale, as in the exercise of other powers, a trustee cannot, therefore, properly delegate the performance of the acts which he ought personally to perform. Where, however, there is any delegation or authorization, it must be express, specific and in the clearest of terms.
As a rule, the law does not permit delegation by a trustee of his functions, except in cases of necessity or with the consent of the beneficiary or the authority of the trust deed itself; apart from delegation "in the regular course of business", that is, all such functions which a prudent man of business would ordinarily delegate in connection with his own affairs.
It is true that there is no prohibition u/s 47 of the Indian Trusts Act to appoint a power attorney to represent the Trust and appointing an attorney does not amounts to abdication of powers and duties of the trustee and it is only for the convenience of the trustee. But in the instant case, the trustee is stated to residing at Visakhapatnam and the trust property is also situated at Visakhapatnam. Admittedly, the trust has not passed any resolution to represent on behalf of the trust and no reasons are stated justifying the appointment of an attorney.
In the circumstances, I do not find any merits in the revision petition and it is accordingly dismissed. No costs.