Andavar Kulandai and others vs Radha (Died) and others

Aruna Jagadeesan, J.—This Civil Revision Petition is filed against the order dated 1.2.2012 made in unnumbered I.A. No. /2012 in OS.

No. 128/1997 by the learned District Munsif, Thirumangalam, rejecting the application filed under Order 3 (sic) Rule 10 of CPC for impleadment

of the proposed parties. The Respondents 1 to 7 as Plaintiffs filed the suit for declaration and recovery of possession contending that Arumuga

Pillai and Nagappa Pillai executed a trust deed dated 30.4.1951 dedicating the property for the family Deity Sri Muthuswami. The said Arumuga

Pillai and Nagappa Pillai died. After the death of Arumuga Pilai, who had no issues, the heirs of Nagappa Pillai were the Trustees of Sri

Muthuswami Deity. In the plaint, it is specifically stated that Nagappa Pillai had three sons, namely, Muthu Vel, the Defendants 1 and 2 and two

daughters, namely, the 1st Plaintiff and one Vijayalakshmi. It is further averred that the 1st Plaintiff''s sister Vijayalakshmi left the family long ago

and she has not been heard for the past 10 years. In the Written Statement filed by the Defendants 1 and 2, a specific plea has been raised that the

suit is not maintainable, as it is barred for non joinder of 1st Plaintiff''s sister. In the said circumstances, an application has been filed by the

proposed parties, who are the heirs of Vijayalakshmi for impleading themselves claiming trusteeship along with the plaintiffs.

The said application was rejected by the Trial Court at the threshold without even numbering it and without issuing notice to the other side. As

against the same, this Civil Revision Petition has been filed.

The proposed parties claimed to be the heirs of the deceased Vijayalakshmi, who is the 1st Plaintiff''s sister. The original suit was filed by the 1st

Plaintiff and subsequently, pursuant to the order in SA. No. 113/2010, Sri Muthuswami Deity was added as Plaintiff. The 1st Plaintiff Radha died

and therefore, her legal heirs have been brought on record as the Plaintiffs 2 to 7. It is not in dispute that the Deity Sri Muthuswamy is the family

Deity of the Arumuga Pillai and Nagappa Pillai. Arumuga Pillai had no issues. The Plaintiffs 2 to 7 are the legal heirs of one of the daughters of

Nagappa Pillai. The Defendants 1 and 2 are the sons of Nagappa Pillai.

Admittedly, the other plaintiff/trustee, who is the sister of the 1st Plaintiff and the Defendants 1 and 2, is not impleaded. It is stated in the plaint

that she left the family long ago and she has not been heard for the past 10 years. However, the proposed parties, who claimed to be the legal heirs

of Vijayalakshmi, have filed an application to implead themselves as Trustees. In respect of the trust property, all the trustees should necessarily be

made parties to protect the welfare and interest of the Trust.

The Trial Court has rejected the application without even numbering the application on the ground that there is no allegation against the Plaintiffs

that they are acting against the interest of the Trust and that it is sufficient if any one of the Trustees is authorised by the other Trustees to institute a

suit on behalf of the Trust.

At the out set, the Plaintiffs have no objection for impleading the proposed parties. In the counter filed before this court, they have admitted that

the Revision Petitioners/proposed parties are the legal heirs of the deceased Vijayalakshmi. It is relevant to state that all the Trustees should join as

Plaintiffs in a suit filed on behalf of the Deity, as they constitute one body and even if some of them are not willing to join as Plaintiffs, they may be

impleaded as Defendants. Therefore, the Trial Court should not have rejected the petition without even numbering it and without even hearing the

other side, especially when some of the Trustees have filed the suit for declaration that the suit property is a Trust Property belonging to the Deity

Sri Muthuswamy and consequently directed the Defendants 3 to 9 to vacate and hand over possession of the suit property to the Plaintiffs.

The general principle of law is that all the Co-Trustees must join in filing a suit to recover possession of the property unless there is specific

instrument of Trust providing that one Co-Trustee may institute a suit on behalf of the Trust. Considering the submissions of the learned counsel on

either side and on going through the plaint averments, I am of the view that the parties to the suit have to be heard before disposing of the

application filed for impleadment of the proposed parties, namely, the legal heirs of the deceased Vijayalakshmi. In the result, this Civil Revision

Petition is allowed and the impugned order is set aside. The court below is directed to number the application if it is otherwise in order and take it

on file and dispose of the same, after giving opportunity to both parties,'' on merits and in accordance with law, as expeditiously as possible. No

costs. Consequently, the connected MP is closed.