G.K. Perumal and another vs Senniappa Chettair and another

Defendants 4 and 5 in O.S. No. 76 of 1981 on the file of the Sub-Judge, Gobichettipalayam are the appellants. The appeals are against the

common order of Abdual Hadi, J. in C.M.P. Nos. 9999 of 1989 in A.S. No, 606 of 1989, C.M.P. No. 10967 of 1989 in A.S. No. 859 of 1989

and C.M.P. No 7960 of 1989 in A.S. No. 606 of 1989 respectively. The respondents filed the suit O.S. No. 76 of 1981 for entrusting the

management of the suit trust to defendants 1 to 3 or for appointing new trustees and for setting, a scheme for the effective and proper management

of the trust. One, N. Palaniappa Chettiar owned considerable properties in and around Gobichettipalayam. His wife was Chinnammal alias

Rengammal. They had no children. Palaniappa Chettiar executed a will on 15-7-1931 which clearly shows his philanthropic attitude and charitable

disposition. Palaniappa had carried on money lending business in the name of his wife, benami for his own benefit. Therefore, properties came to

be purchased in her name as well. On 27-9-1968 both Palaniappa and his wife executed a will in respect of all their properties. The main aim was

to create a trust and provide for the administration of the charities named in the trust. The plaint also says that the appellants (defendants 4 and 5)

were putting forward a will said to have been executed by the wife Rengammal on 27-11-1980 after the death of her husband. Palaniappa died on

5-10-1969 and his wife died on 24-12-1980. According to the plaint allegations, the appellants who are strangers to the family had influenced

Rengammal to execute the will dated 27-11-1980 which is totally in derogation of the trust contemplated by Palaniappa. The appellants are the

beneficiaries under the will dated 27-11-1980 Defendants 6 to 13 had purchased certain properties from Rengammal. The appellants had also

sold certain properties after the death of Rengammal. Pending disposal of the suit, the respondents filed I.A. No. 196 of 1981 for the appointment

of a Receiver to take charge of the suit properties. In the application, it is alleged that the appellants were making frantic attempts to sell all the

properties and appropriate as much as possible. With a view to preserve the suit properties and prevent waste and deterioration of the properties,

it was alleged that a Receiver was necessary. The appellants filed a written statement disputing the maintainability of the suit and denying the

allegation that Rengammal held properties benami and the real owner was Palaniappa. It was contended that the will dated 27-9-1968 did not

create a trust. It did not satisfy Section 6 of the Indian Trust Act. After the death of Palaniappa, his wife Rengammal succeeded to all the

properties. She had sold certain properties in the interest of the estate. She was residing in Door No. 15, Kuppaiyar Street, Gobichettipalayam till

her death. After her death, the appellants, executors of her will dated 27-11-1980 are residing in the said Door No. 15. They are said to

administering the entire estate. It is also admitted that the appellants had sold certain properties. It is also claimed that the first appellant had

purchased certain properties from Renagammal and had improved the same. So far as the application for appointment of Receiver is concerned, it

was contended that the appellants being possession under the will dated 27-11-1980 the respondents cannot seek to dispossess them by

appointing a Receiver.

The trial court dismissed the application I.A. No 196 of 1981. On appeal, the said order was confirmed in C.M.A. No. 27 of 1982. The

respondents filed C.R.P. No. 1232 of 1983 and by an order dated 19-12-1986, Sathiadev, J. appointed the first appellant (4th defendant) as

party Receiver in respect of the suit properties in the possession of the appellants. The first appellant was directed to file accounts and furnish

copies to the respondents. Defendants 6 to 13 were injuncted from alienating the properties in their possession. The following observations of

Sathiadev, J. are relevant:

Therefore, when one of the main points involved in the suit is, how for the later will would be valid and binding in spite of during the life time of

husband and wife they having expressed their intention that the properties should be given away to charitable purposes; this Court considers that,

unless and until the truth and validity of the will dated 27-11-1980 is decided in the suit it would not be proper to appoint an Advocate-Receiver,

and thereby dispossess some of the defendants, who have purchased the properties from Chinnammal herself. A few items have been sold by

defendants 4 and 5 based on Exhibit B-109. In the event of Exhibit B-109 being upheld, the dispossession during the pendency of the suit would

cause considerable hardship to alienees- defendants.

The suit was dismissed on 2-2-1989. But the findings on the various issues have a bearing on the present Letters Patent Appeals. The trial

Court held that the will said to have been executed by Rengammal on 27-11-1980 and marked as Exhibit B-109 was not true, that the same was

not executed by Rengammal in sound disposing state of mind and that the alienations by Rengammal to and in favour of the first appellant and

certain other are not valid and therefore, not binding on the respondents (plaintiffs). The Court also held that the will dated 27-9-1968 executed by

Palaniappa and Rengammal was not irrevocable and that it was a joint will. It was also held that there was no creation of a Trust in respect of the

balance of properties remaining on the death of both Palaniappa and Rengammal. One other significant finding is that the properties in the name of

Rengammal are her own properties and not benami for the benefit of Palaniappa. On these findings A.S. No. 606 of 1989 has been filed by the

appellants challenging the finding that Exhibit B. 109, the will dated 27-11-1980 by Rengammal is not true and valid. A.S. No 851 of 1989 has

been filed by the respondents against the dismissal of the suit. C.M.P. No 7960 of 1989 was filed by the appellants in A.S. No. 606 of 1989 for

the continuance of the appointment of the 4th defendant/petitioner as receiver appointed pursuant to the order this Hon''ble Court dated 19-12-

1986"". C.M.P. No 7959 of 1989 filed by the appellants was for staying the findings of the Trial Court on the will dated 27-11-1980. C.M.P. No.

10967 of 1989 in A.S. No 851 of 1989 was filed by the respondents to appoint an Advocate receiver in respect of the properties described in the

schedule to the petition. One other fact which has to be noted before considering the rival submissions is the order passed in the Receiver accounts

on 2-2-1989, on the date of dismissal of the suit stating that there were no irregularities in the expenses and that the accounts are accepted and the

party Receiver discharged.

The learned Judge who heard the C.M.Ps. together, by an order dated 17-1-1990 held that it is just and convenient to appoint a third party

Advocate Receiver to all the properties except those sold to first appellant (4th defendant) by Rengammal under Exhibits A-28 and A-29 it is

against the said judgment of Abdul Hadi, J. that the Letters Patent Appeals have been filed, as already indicated.

In short, the whole question is whether the first appellant (4th defendant) should be continued as party Receiver as contended by the appellants

or should be replaced by an Advocate Receiver as contended by the respondents. Learned Senior Counsel Mr. G. Subramaniam appearing for

the appellants submits that there are two categories of properties, one in the name of Palaniappa and the other which stood in the name of

Rangammal. He also says all the properties are in the possession and administration of the appellants. Except Door No. 15 Kuppaiyar Street,

Gobichettipalayam, all the other properties are in the possession of tenants or defendants 6 to 13. The learned counsel relies very much on the

judgment of Sathiadev, J. in C.R.P. No. 1232 of 1983 and says that the same circumstances prevail because the findings in O.S. No. 76 of 1981

are challenged in both the appeals 606 and 851 of 1989. Secondly, the accounts filed by the Party Receiver were accepted by the Trial Court and

the Receiver discharged on 2-2-1989. Thirdly, the conduct of the Party Receiver can be assessed only for the period of his Office as Receiver i.e.,

after 19-12-1986. Fourthly, the first appellant had not sold any properties as alleged, but he had only entered into certain agreements of sale and

that the said agreements of sale also have been subsequently cancelled. Fifthly, it is argued, that the period of receiver ship the respondents had not

tied any petition for removal of the 1st appellant signifying the good administration on the part of the 1st appellant. Lastly the conduct prior to 19-

12-1986 when the 1st appellant was appointed as receiver should not be taken note of inasmuch as the order of Sathiadev J. was made

notwithstanding his earlier dealings with the suit properties.

As against this learned Senior Counsel Mr. M.R. Narayanasami places reliance on the following points in support of his claim for the

appointment of an advocate receiver. (1) The circumstances that prevailed when Sathiadev, J. appointed the first appellant as party receiver have

changed to a large extent after the disposal of the suit; (2) In much as Ex.B. 109 has been found to be not true and invalid, the previous will dated

27-1-1968 (Ex.A-5) become operative: (3) Prima facie, therefore, the properties are Trust properties and they should be safeguarded; (4) The

suit was filed after getting sanction u/s 92 of the CPC and in a representative capacity and the main relief is for framing a scheme under the will

dated 27-1-1968 (Ex.A-5) (5) The conduct of the 1st appellant from the beginning should be assessed before continuing him as receiver; (6) The

trial Court did not consider the objections of the respondents on the several accounts filed by the 1st appellant and its order is perfunctory. A

perusal of the accounts shows that prima facie, the 1st appellant has not shown any income from the large extent of properties.

After considering the rival submissions, we are inclined to affirm the order of the learned Judge with a small modification. We are clearly of the

opinion that the circumstances which prevailed on the date of the order of Sathiadev, J. are no longer present now. We have the advantage of the

findings of the trial Court. Even though the findings are subject to the appeals preferred by both parties, for a prima facie consideration, we have

advanced one step further than the stage of the order of Sathiadev, J. The finding that Ex.B.109 will dated 27-11-1980 is not true and genuine

removes the appellants far away from properties. The finding on the interpretation of the will dated 27-1-1968 (Ex.A-5) regarding the creation of a

Trust, is purely a question of law and the same will not improve the claims of the appellants over the properties. We do appreciate that the

appellants may be able to convince this Court ultimately that Ex.B-109 is true and valid. But the question is till then should he be allowed to

continue as Receiver. We do not accept the argument that the conduct prior to the order of Sathiadev, J. should not be taken note of. We are

concerned with the question whether properties will be protected and improved in the hands of the appellants especially after the findings of the

trial Court. Therefore, we cannot but take note of the earlier conduct of the 1st appellant in trying to alienate the properties. Turning now to the

accounts filed by the 1st appellant, we see that the respondents have raised objection to all the accounts. We have been taken through the

accounts and it is pointed out that no income is shown from the lands and a loan has been incurred and interest paid thereon periodically without

any necessity. The order of the trial court dated 2-2-1989 is really perfunctory because the objections had not been considered. The learned

Judge only says that there is no irregularity in the expenses. The Court has not considered as to why no income from the landed properties had

brought into account. Learned Counsel for the respondents rightly says that even if the Trust as created by the Will dated 27-1-1968 (Ex.A-5)

does not come into force, the doctrine of cypres as contemplated in Section 92 (3), C.P.C. will come into operation. The explanation of the

learned Counsel for the Appellants that most of the properties are subject matter of litigation and proceedings under the Tamil Nadu Land Reforms

(Fixation of Ceiling on Land) Act cannot be a reason for not showing any income from the landed properties, which are nearly 100 acres. The

respondents also draw our attention to their allegation in pare 14 (v) of the counter-affidavit in C.M.P. Nos. 7959 and 7660 of 1989 which runs as

follows:-

But, however, now it is a matter of fact that the petitioners 1 and 2 have submitted statement of accounts for a period of 11/2 years. This petitioner

has filed his objections also. Those accounts would clearly show as to how the 1st respondent has been dealing with the properties and unjustly

enriched himself and filed false accounts before the Court.

Learned counsel for the appellants referred to Rules 101 to 105 of the Civil Rules of Practice and contended that the 1st appellant has

scrupulously followed the Rules and does not deserve to be replaced by an advocate receiver. On the other hand, Rule 103 which quoted below,

shows that the Trial Court''s Order dated 2-2-1989 is prima facie contrary to the rules.

Rule 103. Passing of accounts by Court On the adjourned hearing the Court shall consider the objections and surcharges made, and determine the

amount due

The argument based on Sub-rule (2) of Order 40 Rule 1 C.P.C. and the judgement in Hiralal Patni Vs. Loonkaram Sethiya and Others, does not

in any way advance the case of the 1st appellant. We therefore inclined to agree with Abdul Hadi, J. that it is just and convenient to appoint a

third-party advocate receiver to be in charge of the properties pending disposal of the Appeal. Learned Counsel for the respondents fairly

concedes that the appellants need not be dispossessed of the property in their occupation in Door No. 15, Kuppaiyar Street, Therefore in addition

to the properties sold to appellants under Exhibits A-28 and A-29 the property bearing Door No. 15, Kuppaiyar Street, Gobichettipalayam shall

be omitted and the Advocate Receiver to be appointed as per learned Judge''s order, shall take possession of only the other properties. In all other

respects, we confirm the order of the learned Judge. The appeals are dismissed with the above modification. There will be no order as to costs.