P. N. BHAGWATI, D. P. DESAI, M. U. SHAH, J.

( 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 :in the case of cotrustees of a private trust the office is a joint one. Where the administration of the trust is vested in cotrustees they all form as it were but one collective trustee and therefore must execute the duties of the office in their joint capacity. Sometimes one of several trustees is spoken of as the acting trustee but the Court knows of no such distinction; all who accept the office are in the eyes of the law acting trustees. If any one refuses or is incapable to join it is not competent for the others to proceed without him and. if for any reason they are unable to appoint a new trustee in his place under sec. 36 (1) of the Act the administration of the trust must devolve upon the Court. However the act of one trustee done with the sanction and approval of a cotrustee may be regarded as the act of both though such sanction or approval must be strictly proved. THE Judicial Committee of the Privy Council pointed out in Man Mohan Das v. Janki Prasad A. I. R. 1945 Privy Council 23 that this was a correct statement of law applicable in England and that the same doctrine applies in India also. The trustees must act jointly in execution the duties of their office unless the instrument of trust otherwise provides. The instrument of trust may provide that one or more trustees shall be managing trustees entitled to act on behalf of the trust and where such provision is made those who are empowered to act as managing trustees would be entitled to execute the duties of the office without the concurrence of the other cotrustees. But in the absence of such provision all cotrustees must join in the execution of the duties of the office.

( 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 :. . . TRUSTEES cannot transfer their duties functions and powers 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 except 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 office or any of hi

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