Judgment :- S.K. KRISHNAN, J. Aggrieved by the judgment and decree passed by the learned Additional subordinate Judge, Cudallore in A.S.No. 8 of 1992, dated 29.4.1992 reversing the judgement and decree passed by the learned District Munsif, Cuddalore in O.S.No. 276 of 1990, dated 26.8.2991, the plaintiffs have field the second appeal. 2. The facts leading to the filing of the second appeal are as follows : a. The original ancetor Gajjalu Chinnasamy Naidu had two sisters, namely Kothanayaki Ammal and Krishnammal. Gajjalu Chinnasmay Naidu and his wife Thayarammal had no issues. The plaintiffs 2 to 4 are the sons of C.M. Venkatrangan Naidu, who is the son of Kothanayaki Ammal and Narayanaswamy Naidu. The other sister Krishanammal had three sons, namely, C.M. Rangayanakaly Naidu, Sriramulu Naidu and Lakshmanaswamy Naidu. While C.M. Ranganayakaly had two sons namely, C.M. Sethuraman and C.M. Narasimbaly. Srimulu Naidu had no issues. The first plaintiff is the son of Lakshmanaswamy Naidu. No sisters sons of the original owner Gajjalu Chinnaswamy Naidu are anymore. On 18.4.1906, Gajjalu Chinnaswamy Naidu executed a will in favour of has wife and his sisters sons. The suit property is an ancestral property in which the body of the father of Chinnaswmay Naidu was buried and samadhi was erected. To maintain the said Samadhi, the said Chinnaswamy Naidu formed a Trust dedicating the suit property to the said Trust. As per the will, after the death of Thayarammal, CV.M. Sriramulu, who is the son of Krishnammal, managed the suit property. After the death of the said Sriramulu Naidu, C.M. Narasimhalu Naidu, who is the son of C.M. Ranganayakalu Naidu has sold the property to the defendant on 3.5.1985, which is illegal and invalid. As per the will of Chinnaswamy Naidu, no one has any right either to alienate or to sell the suit property to anyone as the whole property was dedicated to the Trust. Hence, the plaintiffs after giving a notice dated 23.5.1989 to the defendant who has given a reply dated 31.5.1989, filed the above said above said suit for the following reliefs. a To declare that the suit properties are trust properties. b To direct the defendant to surrender possession of the suit property to the plaintiffs. and c To direct an enquiry under Order 20Rules 12 regarding mesne profits from the date of plaint till delivery of possession. 3. a To declare that the suit properties are trust properties. b To direct the defendant to surrender possession of the suit property to the plaintiffs. and c To direct an enquiry under Order 20Rules 12 regarding mesne profits from the date of plaint till delivery of possession. 3. Denying the averments made in the plaint, the defendant field her written statement. 4. At the conclusion of the trial, on the basis of oral and documentary evidence, the Trial Court decreed the suit, however, the first appellate Court allowed the appeal reversing the judgment and decree of the Trial Court. Hence, the present second appeal by the plaintiffs. 5. The second appeal was admitted on the following substantial question of law a Whether the lower appellate Court has correctly construed Ex.A.1 and considered the entire evidence on record as regards performance of trust. 6. Heard both sides. 7. Theappellants in this appeal are the plaintiffs in O.S.No.267 of 1990 on the file of the District Munsif Court Cuddalore, wherein, the appellants/plaintiffs filed a suit against the defendant for declaration and recovery of possession. The first plaintiff is the son of Lakshamanasamy. The plaintiffs 2 to 4 are the sons of venkatrangan Naidu and grandsons of kothainayagiammal. One Sriramulu, who was the brother of Ranganayakalu, maintained the suit property till his death. The said Sriramulu performed the rights referred to in Ex.A.1. He died on 23.2.1977. After the death of Sriramulu Naidu one Narasimhalu managed the said Trust created by Gajjalu Chinnasamy Naidu under Ex.A.1 dated 18.4.1906. The said Narasimhalu sold the property to the defendant under Ex. B5, 3.5.1985. 8. The learned counsel for the appellants/plaintiffs would submit that Gajjalu Chinnasamy Naidu the create of Trust under Ex.A.1 dated 18.4.1906 bequeathed various properties including movables in favour of his wife Thayarammal. In para 11 of the will, the executor has given some right to his brother-in-law K. Venugoapl Naidu to make use of manuscripts written by Gajjalu Chinnasamy Naidu to the benefit of Sathyavarthani Freen Library. A right was given to his brother-in-law in para 11 of the said document permitting the said Venugopal Naidu to print, publish and sell the manuscripts for the benefit of Sathyavarthani Free Library. A right was given to his brother-in-law in para 11 of the said document permitting the said Venugopal Naidu to print, publish and sell the manuscripts for the benefit of Sathyavarthani Free Library. In para 12 of the said document after the life time of the executor as well as his wife and mother, the executor has given right to the living sons and daughters of his sisters to get equal share in the moveable and immovable properties after paying Rs.2000-/ to the funds of Sathyavarthani Free Library. 9. As far as para 13 of the said will, it is clearly stated as follows : “I direct that the income from the land at Kummiampet where my fathers monument is erected, be dedicated in perpetuity for the maintenance and upkeep of the land and the monument situated therein. The management of the land and the spending of the income shall vest, after the life time my wife, in the executors I have herein before mentioned. After the management passes out of the hands of the executors i. e. after the death of my mother surviving my wife, any one of my sisters sons who get my property shall look after it. If all of them fail to discharge the trust satisfactorily reducing the trust the trust shall devolve upon the trustees of Sathyavarthani Free Library inconsideration of the bequests I have made in its favour in clause 10 and 12. Any surplus from the income of the land mentioned in this clause shall, after meeting the repairing of charges of the monument, the upkeep of the land, and the payment of the pubic charges therefor be used for nay charitable purpose.” 10. The learned counsel appearing for the appellants/plaintiffs emphasising the recital referred to in para 18 of the said document under Ex.A.1 would submit that the executor of the will has clearly stated that the income derived out of the suit property should be utilized to conduct poojas and other activities in the place of Samadhi erected in the suit property. 11. In this regard, it is pointed out by the learned counsel that after the death of the sisters of Gajjalur Chinnasamy Naidu, namely, Kothainayagiammal and Krishnammal, the suit property referred to in para 13 of the said document was vested with Sriramulu Naidu. 12. 11. In this regard, it is pointed out by the learned counsel that after the death of the sisters of Gajjalur Chinnasamy Naidu, namely, Kothainayagiammal and Krishnammal, the suit property referred to in para 13 of the said document was vested with Sriramulu Naidu. 12. The learned counsel would point out that the said Sriramulu in the capacity of the trustee of the said property maintained the said Samadhi by performing regular poojas and other activities till his life time. Thereafter, Narasimhalu Naidu became the trustee of the said property and sold the property in favor of the defendant on 3.5.1985 under Ex.B.5. 13. In this regard, the learned counsel would point out that the said Narasimhalau Naidu was given power under the said document only to maintain Samadhi out of the income derived from the suit property. There is no recital to alienate or to sell the property to anyone. In such circumstances, the sale of the suit property by the Narasimhalau Naidu in favour of the defendant is not a valid one and the same is liable to be set aside. 14. In this regard, the learned counsel, would emphasise that if the sisters sons are not able to perform the rituals as referred to in para 13 of the said document, then the trust shall devovle on the Srivarthani Free Library and in such circumstances, the said Narasimhalau Naidu ought not to have sold the property in favour of the respondent / defendant. 15. In support of his contention the learned counsel appearing for the appellants / plaintiffs relied on the decision in Shanti Vijay and Co. v. Princes Fatima Fouzia and Others Shanti Vijay and Co. v. Princes Fatima Fouzia and Others Shanti Vijay and Co. v. Princes Fatima Fouzia and Others AIR 1980 SC 17 : (1979) 4 SCC 602 , wherein, the Supreme Court had held as follows : “ 27. The law governing the execution of trusts is well settled. In the case of 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. In the case of 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 settlor. The Judicial Committee in Man Mohan Das v. Jank Prasad Man Mohan Das v. Jank Prasad Man Mohan Das v. Jank Prasad (1945) 72 Ind. App. lewins 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 in capable to join, it is not competent for the others to proceed without him, but the administration of the trust must in that case devolve upon the Court. However, the act of 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‘. Which in their opinion contains a correct statement of law applicable in England and that the same doctrine applied to India also. The decision in Man Mohan Dass case has been followed with approval by this Court in Jankiraman Iyer v. Neelakanta Iyer Jankiraman Iyer v. Neelakanta Iyer Jankiraman Iyer v. Neelakanta Iyer (1962) Supp 1 SCR 206. 28. 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 perform. 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 perform. Although a trustee may listen to the opinions and wishes of others, he must exercise his own judgement. Thus a trustee for sale of property cannot leave the whole conduct of the sale to his co-trustees. the reason for this is the settlor has entrusted the trust property and its management to all the trustees, a and the beneficiaries are entitled to the benefit of their collective wisdom and experience: Under HILL‘ LAW OF TRUSTS AND TRUSTEES, 12th Ed., pp. 43, 442-43; Scot on Trusts Vil. 1033. 29. In Janakiram Iyers case this Court observed that all acts which the trustees intend to take for executing the trust, must be taken by all of them acting together, as provided by 5.46 of the Trusts Act, 1882. Section 48 of the trusts Act provides as follows: “ 48. When there are more trustees than one, all must join in the execution of the trust, except where the instrument of the trust otherwise provides.” 16. One another point emphasised by the learned counsel is that even the lease deed which was executed by the Narasimhalu Naidu under Exs. B.2 and B3 in favour of the defendants husband only with regard to the usufructuary right of Tamarind Trees alone. Even for the execution of the said lease all the trustees have to come forward and execute the same. Here the Narasimhalu Naidu alone executed the said lease deed in favour of the defendants husband without obtaining any concurrence of acceptance from other trustees. Therefore, the lease deeds executed by Narasimhalu Naidu under Exs. B.2 and B.3 prior to the sale deed were also not valid and that the respondents/defendant cannot exercise any right. 17. The suit filed by the plaintiffs before the District Munsif Court was decreed in their favour. The appeal field by the defendants was allowed and hence, the present second appeal was field by the plaintiffs. 18. Though notice was served on the legal representatives of the first respondent the respondents 2 to 7 neither appeared themselves nor through their counsel before this Court. The appeal field by the defendants was allowed and hence, the present second appeal was field by the plaintiffs. 18. Though notice was served on the legal representatives of the first respondent the respondents 2 to 7 neither appeared themselves nor through their counsel before this Court. Hence, the matter is decided on merits after hearing the learned counsel for the appellant as well as Mr.K. Govi Ganeasan who has been appointed as amicus curiae on 6.7.2006, for the respondents. 19. The learned counsel appearing for the respondents/defendants would submit that when there is no reference or any prohibition is referred to in the said document to alienate or to sell the property to anyone, the sale in favour of the defendants by Narasimhalu Naidu under Ex.B. 5 is a valid one and therefore, the judgment and decree passed by the learned Subordinate Judge cannot be interfered with. 20. In support of his contention, the learned counsel appearing for the respondents relied on a decision in Joseph Carlos Xavier Louis Anthony Benedict Aldo Costa v. Stanislaus Costa and Others Joseph Carlos Xavier Louis Anthony Benedict Aldo Costa v. Stanislaus Costa and Others Joseph Carlos Xavier Louis Anthony Benedict Aldo Costa v. Stanislaus Costa and Others AIR 1968 Mad. 161 (1968) 1 MLJ 161 (V 55 C 37). 21. The learned counsel would emphasise that the respondents/defendants purchased the said property under Ex.B.5, dated 3.5.1985 with bona fide intention and therefore, the said sale cannot be termed as invalid. 22. It is pointed out by the learned counsel that the executor of the sale deed Narasimhalu Naidu is an absolute owner of the said property who got the property from one Narasimhalu Naidu under a registered will dated 23.2.1977 and therefore, Narasimhalu Naidu became the absolute owner of the property. Since the said Narasimhalu Naidu has the absolute right under the said will executed by Narasimhalu Naidu dated 23.2.1977, the Narasimhalu Naidu sold the property in favour of the respondents/defendants. Therefore the appellants/plaintiffs cannot question the validity of the sale deed executed by the Narasimhalu Naidu in favour of the defendant. 23. Since the said Narasimhalu Naidu has the absolute right under the said will executed by Narasimhalu Naidu dated 23.2.1977, the Narasimhalu Naidu sold the property in favour of the respondents/defendants. Therefore the appellants/plaintiffs cannot question the validity of the sale deed executed by the Narasimhalu Naidu in favour of the defendant. 23. A perusal of para 6 of the written statement would reveal the fact that though the defendant has claimed that she had exercised the right and title over the suit property on the basis of the execution of the deed in her favour by Narasimhalu Naidu she has categorically accepted the existence of a registered will which was executed by Gajjalu Chinnaswamy Naidu under Ex.A1 in favour of his wife. 24. The contention raised by the defendants is that though the said will was executed by Gajjalu Chinnaswamy Naidu in favour of his wife, the said will never came into force and poojas and other activities have been conducted by the trustees who were nominated the trust to perform the same. 25. Such contention raised by thelearned counsel appearing for the respondents/defendants cannot be accepted from the reason that in the absence of any specific recital referred to in the said document under Ex.A.1 either to alienate or to sell the property, the sale in favour of the respondents/defendant by Narasimhalu Naidu under Ex. B. 5 is not a valid one. Therefore, the said sale has no effect and it is not at all sustainable under law. 26. In the light of the above discussion, this Court finds that there are valid reasons to interfere with the decision arrived at by the learned Subordinate Judge. 27. In result, the appeal is allowed setting aside the judgment and decree passed by the learned Subordinate Judge and the judgment and decree of the Trial Court is restored. No costs.