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Nakkheeran Publications, Rep. by its Editor & Another v/s Dhyanapeeta Charitable Trust, Rep. by its Trustee T.T. Dhanasekar

    C.R.P. (PD) No.1915 of 2011 & M.P.No.1 of 2011

    Decided On, 16 August 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE K. VENKATARAMAN

    For the Petitioner: P.T. Perumal, Advocate. For the Respondent: G. Suriyanarayanan for M/s. Bala & Daisy, Advocate.



Judgment Text

(Prayer: Civil Revision Petition has been filed under Article 227 of the Constitution of India against the order dated 24.2.2011 passed in I.A.No.38 of 2011 in O.S.No.11115 of 2010 on the file of the learned Additional District and Sessions Judge, Chennai, Fast Track Court No.V.) 1. The present civil revision petition is directed against the order of the learned Additional District and Sessions Judge, Fast Track Court No.V, Chennai dated 24.2.2011 made in I.A.No.38 of 2011 in O.S.No.11115 of 2010.

2. The defendants in the said suit are the petitioners herein and the plaintiff thereon is the respondent.

3. The respondent herein has laid the said suit against the petitioners for permanent injunction restraining them from publishing any materials, articles or photographs in their magazines, website whatsoever either by direct or indirect reference against the respondent or any of their trustees or devotees.

4. In the said suit filed by the respondent against the petitioners, the petitioners have preferred an application in I.A.No.38 of 2011 to reject the proof affidavit filed by one Adhmanandha and the non-plaint document Ex.A.1 and to direct Nithya Sadhanandha to appear, file proof affidavit and subject himself to be cross examined.

5. In the affidavit in support of the application, it is stated that the plaintiff did not turn up to the Court for giving evidence, but, however, one Adhmanandha came to the box and filed proof affidavit. He has filed Ex.A.1, a document which was not filed along with the plaint. The said Adhmanandha is not a competent person to give evidence in the suit. The copy of the new document was not served on the petitioners. The suit has been filed by a trust, but, however, the trust deed is not a document in the plaint. The plaintiff trust is represented by one of the trustees viz., Nithya Sadhanandha as per the cause title. Sections 47 and 48 of the Indian Trusts Act, 1882 prevents further delegation by a trustee. So, the said Nithya Sadhanandha alone should depose before the Court to prove his averments made in the plaint. Therefore, the proof affidavit filed by Adhmanandha has to be rejected. Ex.A.1 which was not filed along with the plaint should not have been allowed to mark. Thus, pleading the above aspects, the said application was preferred.

6. Counter affidavit was filed on behalf of the respondent wherein the following facts have been set out:-

Section 47 of the Indian Trusts Act, 1882 provides delegation of power even to a stranger, if the trustee comes to a decision that such delegation is necessary. Section 48 of the India Trusts Act, 1882 contemplates that where an act has to be done by all the trustees, no single trustee can do such act. The application has been filed without proper application of mind. It is the discretion of the plaintiff or defendant to let in evidence in their case at their discretion and the only course open to the other side is to cross examine the witnesses on their defence. Section 47 of the Indian Trusts Act, 1882 contemplates 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 said provision. Hence, there is no delegation involved in asking the manager to adduce evidence on behalf of the trust. Therefore, the proof affidavit filed by P.W.1 is perfectly valid in law and the present application is a farce and delaying technique.

With the above averments, the counter affidavit sought for the dismissal of the application preferred by the petitioners.

7. The said application came to be dismissed by the Court below and the present civil revision petition is directed against the said order.

8. The Court below dismissed the application preferred by the petitioners on the following grounds viz.,

(i) The petitioners have not raised any objection while P.W.1 was examined in chief and documents were marked. Only at the time of cross examination of P.W.1, the said application has been preferred by the petitioners. It shows that the petitioners are intending to drag on the proceedings.

(ii) Whether P.W.1 is competent to depose or not can be decided after trial.

(iii) The plaintiff is entitled to examine any person as his witness and there is proper authorization given to P.W.1 to depose.

(iv) Ex.A.1, the authorization letter is marked only to prove that P.W.1 is entitled to depose and it cannot be called as an additional document in the sense. Hence, the objection is not sustainable.

(v) Since it is not the suit pertaining to the administration of the trust and the acts of the trust, the trust can delegate P.W.1 to speak for the plaintiff under Section 47 of the Indian Trusts Act, 1882.

9. Learned counsel appearing for the petitioners as well as learned counsel appearing for the respondent have made their submissions based on the pleadings referred to above.

10. I have carefully considered the submissions made by them and perused the entire records.

11. In a suit filed by the respondent against the petitioners for the relief set out earlier, one Adhmanandha was examined as P.W.1 and he has filed Ex.A.1 the authorization letter given to him to depose on behalf of the plaintiff. At that point of time, there was no objection on the side of the petitioners herein. Having allowed the proof affidavit filed by the said Adhmanandha and having allowed Ex.A.1, the authorization letter given to him, the petitioners cannot make a huge cry when the matter was posted for cross examination of P.W.1. Even otherwise, if the said Adhmanandha is not a competent person to speak on behalf of the plaintiff and Ex.A.1 is not the authorization under the said sense or the said authorization is not valid in law, the petitioners can very well cross examine P.W.1 on those lines. Even otherwise, the petitioners are entitled to raise the same as their defence in the suit and can make the said claim at the time of arguments.

12. That apart, the suit filed by the respondent is not pertaining to the administration of the trust or pertaining to the acts of the trust. The suit is for permanent injunction restraining the petitioners herein from publishing any materials, articles or photographs in their magazines, website whatsoever either by direct or indirect reference against the respondent or any of their trustees or devotees. Hence, there is nothing wrong in delegating P.W.1 to speak on behalf of the plaintiff. Section 47 of the Indian Trusts Act, 1882 (herein after referred to as the Act) does not prohibit such act by a trustee. It is useful to extract Section 47 of the said Act and the same is extracted here under:-

"47. Trustee cannot delegate:- 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.

Explanation:- 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 this section."

The explanation to the said provision makes it very clear that appointment of an attorney or a proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of the said provision. Hence, authorizing a person to speak for the plaintiff is not prohibited under Section 47 of the Act. That apart, as stated already, since the suit is not pertaining to the administration of the trust and the acts of the trust, for delegating P.W.1 to speak for the plaintiff in a suit filed by him for the relief set out earlier, there cannot be any prohibition and that Section 47 of the Act does not prohibit such delegation.

13. As far as Section 48 of the Act is concerned, it contemplates that if there are more trustees than one, all must join in the execution of the trust. Section 48 of the said Act is usefully extracted here under:-

"48. Co-trustees cannot act singly:- When there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust otherwise provides".

14. In view of the above stated position, I am of the considered view that the plea that has been taken by the petitioners that the said Adhmanandha, who has filed proof affidavit cannot do so and that there cannot be any authorisation to him, cannot be accepted at all.

15. That apart, Section 36 of the Act contemplates that the trustees are empowered to do all acts which are reasonable and proper for the benefit of the trust. Section 36 of the Act is usefully extracted here under:-

"36. General authority of trustee:- In addition to the powers expressly conferred by this Act and by the instrument of trust, and subject to the restrictions, if any, contained in such instrument, and to the provisions of section 17, a trustee may do all acts which are reasonable and proper for the realization, protection or benefit of the trust-property, and for the protection or support of a beneficiary who is not competent to contract."

16. In the present case on hand, it is pleaded by the respondent herein, being the plaintiff in the said suit, that the petitioners who are the defendants in the said suit, are trying to defame the reputation of the trust by publishing defaming articles. In such situation, I am of the considered view that there is nothing wrong in authorizing a person to depose on behalf of the plaintiff.

17.1. Learned counsel appearing for the petitioners relied on the decision reported in A.I.R. 2008 GUJARAT 44 – Ajay Kiritakant Ghelani & ors. Mathureshnagar Co-operative Housing Society Ltd. & Anr. In the said decision, it has been held that the power of attorney holder can appear on behalf of the petitioner, but he cannot be a witness on behalf of the principal and depose on behalf of the principal. In the present case on hand, the said Adhmanandha who has filed the proof affidavit, has not filed the same as the power of attorney, but, he has been authorized to depose on behalf of the plaintiff. Hence, the said judgment may not be of any use to the petitioners.

17.2. The next decision that has been relied on by the learned counsel appearing for the petitioners is reported in AIR 1922 Privy Council 209 – K.S.Bonnerji, Official Receiver v. Sitanath Das and another. Relying on the said decision, learned counsel appearing for the petitioners submitted that a person in representative capacity cannot delegate his representative authority. However, as pointed out earlier, Adhmanandha was given a power to depose on behalf of the plaintiff in a suit for permanent injunction which is nothing to do with the administration of the trust. Hence, the said decision also may not be of any use to the petitioners.

17.3. Yet another decision that has been relied on by the learned counsel appearing for the petitioners is reported in AIR 2005 SUPREME COURT 439 – Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd., and another. In the said decision, the Hon'ble Apex Court has considered order 3 Rules 1 and 2 C.P.C. and has held that the power of attorney holder cannot depose in the place and instead of principal. The said judgment, on the facts of the present case, is not applicable.

17.4. The other decision relied on by the learned counsel appearing for the petitioners, which is reported in AIR 2004 ANDHRA PRADESH 309 – Smt.S.Padmavathamma v. Smt.S.Sudha Rani and others, was also the case where it deals with whether the power of attorney holder can appear as a witness. Hence, the said judgment is not applicable to the present case. Equally, in AIR 1998 RAJASTHAN 185 – Ram Prasad v. Hari Narain and others, which has been cited by the learned counsel appearing for the petitioners deals with the issue "whether power of attorney can appear as witness".

17.5. The judgment that has been relied on by the learned counsel appearing for the petitioners reported in MysoreLaw Journal Vol.XXVIII – E.K.Palia and another v. Chief Secretary, Government of Mysore, Bangalore, was on the point whether the suit that has been filed by few trustees only, is maintainable. The said issue does not arise for consideration in the present matter in issue. The same issue was considered in AIR 1984 DELHI 145 – Duli Chand v. M/s.Mahabir Pershad Trilok Chand Charitable Trust, Delhi and AIR 1953 Calcutta 763 – Shri Mahadeo Jew and another vs. Balkrishna Vyas and another which are also not relevant for the present case.

17.6. Yet another decision that has been relied on by the learned counsel appearing for the petitioners is reported in AIR 1963 SUPREME COURT 309 – 1.Sheikh Abdul Kayum and others vs. 1.Mulla Alibhai and others. The question that arose for consideration in the said decision was whether the trustees can delegate their power to others. As stated already, in the present case on hand, the suit is filed by the respondent not touching the administration of the trust and hence, the said judgment also may not be of any use to the petitioners.

17.7. The decision reported in AIR 1973 GUJARAT 113 (V 60 C 17) – Atmaram Ranchhodbhai v. Gulamhusein Gulam Mohiyaddin and another, which was cited by the learned counsel appearing for the petitioners, is pertaining to the issue, " whether the decision making by co-trustee must be joint in absence of severally in the trust deed, though mere formal act by one is permissible?" It has been held therein that all the co-trustees must join in the suit to recover possession of the property from the tenant. In the given case on hand, as already held, in a suit filed f

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or permanent injunction, an authorisation has been given to one Adhmanandha to depose on behalf of the plaintiff and hence, the said judgment also may not be of any use to the petitioners. 18. The other contention that Ex.A.1 was not filed along with the plaint and hence, the same should not have been entertained, on the face of it, has to be rejected. Ex.A.1 is an authorization letter given to Adhmanandha to depose on behalf of the plaintiff. Through him, proof affidavit was filed. It will be too much for the petitioners, who are the defendants in the suit to say that the said authorization letter was not filed along with the plaint and the same should not have been marked. Ex.A.1 is only an authorization letter, which has been marked only to prove that P.W.1 was authorized to speak for the plaintiff and is entitled to depose. At no stretch of imagination, it could be called as additional document. Hence, the said objection is also not sustainable in law. 19. Considering the over all circumstances referred to above, I am of the considered view that there exists no necessity to interfere with the order of the Court below, which is under challenge in the present civil revision petition. 20. In fine, the order of the learned Additional District and Sessions Judge, Fast Track Court No.V, Chennai dated 24.2.2011 made in I.A.No.38 of 2011 in O.S.No.11115 of 2010 is confirmed and the civil revision petition stands dismissed. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
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