Code of Civil Procedure, 1908 (CPC)
Order XXXI CPC: Suits by or Against Trustees, Executors and Administrators
A trust may have fifty beneficiaries, and an estate a dozen legatees. If every one of them had to be joined in every suit about the trust property, litigation would be impossible. Order XXXI of the Code of Civil Procedure, 1908 avoids that by a simple rule of representation: trustees, executors and administrators represent the persons beneficially interested, who need not be joined, though the court may order them to be made parties where it thinks fit. These notes cover the three rules of the Order, the requirement that all representatives be joined, and the safeguards that make the representation acceptable.
The beneficiaries sit inside the suit without being on the record
1. Representation of Beneficiaries: Rule 1
§ Order XXXI Rule 1, CPC 1908 In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties. |
§ The four elements of the rule Each must be present for the representation to operate: • Property vested in a trustee, executor or administrator. The rule turns on the vesting of the legal estate in the representative. A person who merely manages property without the title vesting in him is not within it. • A suit concerning that property. The subject matter must be the trust property or the estate, not some separate matter in which the representative is personally involved. • The contention must be between the beneficiaries and a third person. This is the limiting condition. Where the dispute is among the beneficiaries themselves, or between a beneficiary and the trustee, the rule does not apply, and those persons must be before the court. • The court's discretion is preserved. Even where the rule applies, the court may order the beneficiaries or any of them to be made parties where it thinks fit, as where their interests conflict or the representative's conduct is in question. |
§ Why representation is acceptable here The beneficiaries are bound by a decree obtained against a trustee who represented them, and the justification is the same as in every representative proceeding: the representative holds the legal title and owes fiduciary duties to those he represents. The trustee's duty to protect the trust estate is what stands in place of the beneficiaries' own participation. A trustee who litigates negligently or collusively is in breach of trust, and the beneficiaries have their remedies against him. The representation therefore fails where the trustee's own interest conflicts with theirs, which is why the rule is confined to contentions with a third person and why the court retains the power to add the beneficiaries. |
2. Joinder of Beneficiaries: Rule 2
§ Order XXXI Rule 2, CPC 1908 (1) Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them: provided that the executors who have not proved their testator's will, and trustees, executors and administrators outside India, need not be made parties. (2) Where a sole surviving executor or administrator dies, the suit may be continued against the legal representative, as provided by the Code. |
i. All must be joined. Where there are several representatives, all are to be made parties, because the estate is vested in them jointly and a decree cannot properly bind it if some are absent. The rule reflects the ordinary principle about necessary parties in Order I.
ii. Two exceptions. Executors who have not proved the will, since until probate they have not assumed the office, and representatives outside India, since compelling their joinder would obstruct the suit.
iii. Death of a sole representative. Where a sole surviving executor or administrator dies, the suit continues against the legal representative under Order XXII, so the estate remains represented.
iv. Rule 3: joinder of the beneficiaries. The court may, at any stage, direct the beneficiaries or any of them to be joined, and the general power in Order I Rule 10(2) is available to the same end.
3. Who Is Covered, and Who Is Not
Person | Within Order XXXI? | Reason |
|---|---|---|
A trustee of an express trust in whom the property is vested | Yes | The legal estate is vested in him, and he owes fiduciary duties to the beneficiaries |
An executor who has proved the will | Yes | The estate vests in him on probate, and he represents the legatees |
An administrator with letters of administration | Yes | The estate vests in him on the grant, and he represents those entitled on intestacy |
An executor who has not proved the will | Excluded from compulsory joinder | By the proviso to Rule 2(1), since he has not assumed the office |
A trustee, executor or administrator outside India | Excluded from compulsory joinder | By the proviso to Rule 2(1), so that the suit is not obstructed |
A beneficiary suing the trustee | No | The contention is not with a third person; Rule 1 does not apply and the parties must be before the court |
A manager of a Hindu undivided family | No, but see Order XXIII Rule 3B | He is not a trustee in whom property vests in that sense, though a suit in which he represents the family is treated as a representative suit for the purposes of compromise |
4. Order XXXI in the Scheme of Representative Proceedings
Provision | Who represents whom | Key safeguard |
|---|---|---|
Order XXXI Rules 1 to 3 | Trustees, executors and administrators represent the beneficiaries in a contention with a third person | The court may order the beneficiaries to be made parties; all representatives must ordinarily be joined |
Order I Rule 8 | One or more persons represent numerous persons having the same interest | Permission of the court, mandatory notice, and restrictions on withdrawal and compromise |
Order XXXII | A next friend or guardian for the suit represents a minor or person of unsound mind | Order XXXII Rule 7: no compromise without the leave of the court expressly recorded |
Order XXIII Rule 3B | Any representative suit, defined to include a suit under Order XXXI Rule 1 or Rule 2 | No compromise without the express leave of the court, after notice to interested persons; a compromise without leave is void |
Explanation VI to Section 11 | Persons litigating bona fide in respect of a private right claimed in common represent all interested | The representation must be bona fide, failing which the decree does not bind |
§ The point that connects them Order XXIII Rule 3B expressly includes a suit under Order XXXI Rules 1 and 2 within its definition of a representative suit. The consequence is important and often missed: a trustee or executor cannot compromise such a suit without the express leave of the court recorded in the proceedings, and only after notice to the persons interested. The reason is the same as for every representative proceeding. A person who may bind absent beneficiaries by a decree could otherwise bind them by a bargain, and the Code will not allow that without the court's supervision. Similarly, a decree obtained in such a suit binds the beneficiaries under the ordinary principle of representation and Explanation VI to Section 11, but only where the representation was bona fide; a collusive or negligently conducted suit does not bind them. |
5. Landmark Points
- Order XXXI Rule 1. In suits concerning property vested in a trustee, executor or administrator, where the contention is between the beneficiaries and a third person, the representative represents them and they need not ordinarily be joined.
- The proviso to Rule 1. The court may nevertheless order the beneficiaries or any of them to be made parties where it thinks fit.
- Order XXXI Rule 2(1). Where there are several trustees, executors or administrators, all must be made parties, except executors who have not proved the will and representatives outside India.
- Order XXXI Rule 2(2). On the death of a sole surviving executor or administrator, the suit continues against the legal representative under Order XXII.
- Order XXIII Rule 3B. A suit under Order XXXI Rule 1 or Rule 2 is a representative suit, so no compromise may be entered into without the express leave of the court after notice to interested persons.
- Explanation VI to Section 11. Persons represented bona fide are bound by the decree; collusive or negligent representation does not bind them.
6. Frequently Asked Questions
Must beneficiaries be joined in a suit about trust property?
Not ordinarily. Under Order XXXI Rule 1, where the property is vested in a trustee, executor or administrator and the contention is between the beneficiaries and a third person, the representative represents them and it is not necessary to make them parties. The court may nevertheless order them to be joined if it thinks fit.
When does Order XXXI Rule 1 not apply?
Where the contention is not with a third person: a dispute among the beneficiaries themselves, or between a beneficiary and the trustee, falls outside the rule, and those persons must be before the court. It also requires that the property be vested in the representative.
Must all trustees be joined?
Yes, as a rule. Order XXXI Rule 2(1) requires all trustees, executors or administrators to be made parties to a suit against one or more of them, since the estate vests in them jointly. Executors who have not proved the will, and representatives outside India, are excepted.
What happens if the sole executor dies during the suit?
Under Order XXXI Rule 2(2), the suit may be continued against his legal representative as provided by the Code, so the machinery of Order XXII applies and the estate remains represented.
Can a trustee compromise a suit on behalf of the beneficiaries?
Only with the express leave of the court recorded in the proceedings, and after notice to the persons interested. Order XXIII Rule 3B defines a representative suit to include a suit under Order XXXI Rule 1 or Rule 2, and a compromise entered into without such leave is void.
Are the beneficiaries bound by the decree?
Yes, where the representation was bona fide, on the ordinary principle of representation and Explanation VI to Section 11. A decree obtained in a suit that was collusive or conducted with gross negligence does not bind those represented.
7. Related Topics in This CPC Series
- Representative Suit under Order I Rule 8
- Compromise of a Suit under Order XXIII Rule 3
- Decree in an Administration Suit under Order XX Rule 13
- Necessary Party and Proper Party under the CPC