( 1 ) THIS appeal is filed by the appellant who is the original defendant against the Judgment and decree passed by the learned Civil Judge Senior Division Gondal on 13-12-1976 in favour of the plaintiff in Special Suit No. 25 of 1972. The plaintiff-trust is held to be owner of the suit property and the defendant is asked to hand over the suit property to the plaintiff forthwith and also to pay Rs. 2666. 00 for mesne profits for use and occupation and also to pay Rs. 100. 00 per month till the possession is handed over to the plaintiff. During the pendency and final disposal of this appeal the appellant-original defendant died. Therefore his heirs and legal so representatives are brought on record in this appeal in his place.

( 2 ) MR. Nanavati learned Advocate appearing for the appellant has submitted that the Trial Court ought to have dismissed the suit of the plaintiff as one trustee cannot file suit on behalf of other trustees. In support of his submission he relied upon the Judgment of this Court in case of Atmaram Ranchhodbhai v. Gulamhussein Gulam Mohiyaddin and Anr. reported in 13 G. L. R. 828. He submitted that the learned Trial Judge has wrongly relied upon the judgment of the Bombay High Court in case of Rama Motibhai v. Dalwadi Tupoo Rama and Others reported in AIR 1956 Bombay 264 and held that absence of other trustees will not affect maintainability of this suit and the judgment of this Court reported in 13 GLR 828 is not applicable to the case of trespassers and the suit is maintainable by one of the trustees even against the trespasser. He submitted that Full Bench in case of Atmaram Ranchhodbhai (supra) has clearly laid down that whether the trust is a private trust governed by the Indian Trusts Act or is a public charitable or religious trust a trustee cannot delegate any of his duties functions and powers to a co-trustee or to any other person unless the instrument of trust provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in regular course of business. Therefore Mr. Nanavati urged that a trustee cannot delegate any of his duties powers functions to a co-trustee or to any other person and the trustee can do that only in forced circumstances as held by the Full Bench of this Court. They are. (I) Unless the instrument of the trust so provides. (II) The delegation is necessary. (III) Beneficiaries competent to contract consent to the delegation. (IV) The delegation is in the regular course of business. Mr. Nanavati has submitted that in this case the instrument of trust i. e. the trustdeed has not been brought on record by the plaintiff trust. Therefore it is to be presumed that the instrument of trust does not provide the same. He also submitted that there is nothing on record to show that the delegation of duties powers functions was necessary or the beneficiaries competent to contract consented to the delegation or the delegation was in the regular course of business. The Full Bench of this Court has relied upon two judgments-one of Privy Council in K. S. Bannerji v. Sitanath Das AIR 1922 P. C. 209 and (2) the decision of the Calcutta High Court in Gopal Sridhar Mahadev v. Sashi Bhusan Sarkar AIR 1933 Calcutta 109. The Calcutta High Court has relied upon the aforesaid judgment of the Privy Council In case before the Privy Council the question was whether the power to grant a lease of trust properly can be delegated by the trustee to anyone else or not ? The Privy Council held that it was a power coupled with fiduciary duty and fiduciary duty cannot be made the subject of delegation and any attempted delegation would be ineffective and exercise of delegated power would be invalid Before the Calcutta High Court the question was whether a power to grant lease can be delegated by a trustee to any other trustee in the regular course of business or not ? Relying upon the judgment of the Privy Council the Calcutta High