R. Sathyamoorthy and another vs R. Rukwnani and others

K. M. Natarajan, J.—This revision is directed against the order of dismissal passed by the Principal District Judge, Periyar District at Erode.

The facts/which are necessary for the disposal of this revision can be briefly stated as follows:- The revision petitioners herein filed a petition under

S.34 of the Indian Trust Act wherein it is averred as follows:- The two petitioners are the descendants of one Elaiaperumal Goundar of

Erayamangalam Village of Salem District. Elaiaperumal founded an accident temple by name Sri Elaiaperumal alias Venkataramanaswamy Temple

is the 18th Century. He died leaving his son Dondigaivel Gounder, One Elaiaperumal, Nagamalai Gounder, Peria Rangiah Goundar and Subbaraya

Gounder are the sons of Dandigaivela Gounder. The said Peria Rangiah Gounder died in the year 1901 leaving his minor son Ganapathi Gounder,

whose paternal uncle Nagamalai Gounder was managing the estate of Ganapathi v Gounder during his minority. Afterwards Ganapathi Gounder

himself took management of the temple and created a private trust by executing a registered trust a deed dated 19.4.1920. As per the said deed,

the trustees were to manage the trust in turns and perform certain Ubayams and charities as provided in the deed. Out of the religious charities item

Nos. 1, 2,3,5 and 6 alone are being performed while the remaining items have been discontinued. The annual income from the lands which are of

an extent of 5.32 hectares is Rs. 14,300/- and after deducting the expenses including the payment of most, the net income will be Rs. 13,000/-

only. The rental income from the shops was Rs. 1,500/- per month till May 1985 and it has been increased to Rs. 2,000/- per month thereafter.

After deducting the municipal tax, the balance available will be Rs. 22,156/- per annum. Further a sum of Rs. 750/- is realised from the tamarind

those. A sum of Rs. 47,866/- has to be incurred as expenditure for doing the performance. The petitioners have been spending their personal

income for performing such religious charities as the income is not sufficient. There is a clause in the trust deed that the trust properties should not

be alienated. If the lands are sold and invested, it will easily fetch a sum of Rs. 36,000/- per annum by way of interest. Hence, it was prayed for

granting permission under S.20of the Indian Trust Act for sale of the landed properties after publication or through private negotiation and for

investment of the sale proceeds.

Many persons claiming interest in the trust filed objections. One Rukmani got herself impleaded as a party-respondent. All of them contended

that the petitioners have purposely reduced the income and exaggerated the expenditure. According to them, there is no necessity to sell the landed

properties. The alleged will said to have been executed by Ganapathi Gounder is nothing but a forced one. They prayed for dismissal of the

petition.

The District Judge for the reasons assigned is his order came to the conclusion that there is no necessity to sell the landed properties. The Court

has no power to grant permission to sell the properties when there is an express provision in the trust deed that the properties should not be sold

and consequently dismissed the petition. Hence this revision.

5 Learned counsel for the revision-petitioners, Mr. T. L. Rammohan, mainly contended that though the document dated 19.4.1920 is styled as

trust-deed and yet it is not a trust deed, but it is only a deed of charge created over the properties for performing certain charities. According to

him, the management is entrusted with the members of the family and no outsider is entitled to claim the surplus. As such, even though there is a

clause in the deed, wean alienation is prohibited, the said clause what privet them from selling the properties, further, the tenants who are in

occupation of the premises are willing to purchase the parties of Rs. 9,25,000/- each and that the (sic) rest pay ale will be more than the income

rated from he properties and as such the order passed y the Court below dismissing the petition is erroneous and illegal.

As regard the first contention it is seen that Ex, A-1, with is a reparation copy of the trust deed, was executed 19.4.1920 by one Ram swami

Gender, Ganapathi Gounder, grand-father of petitioners, and four others, by which the properties described in the schedule were dated for the

performance of certain charities ferreting the deed. It is specifically provide in the document that the above Ram Swami under at five others, and

after then, their heirs lacto manage the properties and out the inane, they have to perform the chaise and maintain proper accounts in turns that they

should not entrust the management to other and that the surplus, if any, is the spent according to the decision of the majority. this specifically

provided in the dormant that the properties should not be aliened. The parties consist of 13.6 acres of ninja and is Sampur village, 8 shops at

Erode To and another house. One other property referred to is 2 res of ninja land at Attavanai Eramangalanillage and 6 acres of lands with

account d trees at Erayamangalam village with 9'' X'' house and other structures. Be sits that, go jewels and other articles are also mentioned,

cording to the case of the petitioners, the a (sic) l income from the lands is only Rs. 14,300/- d the net income will be Rs. 13,00/-. after payment of

Kist. The rental income from the shops Rs. 2,000/- per manse. After debiting the municipal tax, the balance available will be Rs. 256/- per annum.

Besides that, a sum of Rs. 750/- is realised from the tamarind those. A sum of Rs. 47,866 has been incurred as expenditure for doing

performances. According to them, if the lands are sold and the proceeds are invested, it would easily fetch a sum of Rs. 28,000/- per annum by

way of interest. Hence, they prayed for permission under S.20of the Indian Trust Act for sale of the landed property. The District Judge relied on

the decision of the Supreme Court in Official Trustee, West Bengal v. Sachindra (A.I.R, 1969 S.C 623) and held that the Court has no power to

grant permission to the trustees to sell the properties when there is an express provision in the trust deed Ex. A.1 that the properties must not be

sold. The said proposition of law is not disputed. But, what is contended by the learned counsel for the petitioners is that it is not a trust deed; built

is only a deed creating a charge over the properties for doing certain performances and that there is no bar in selling the properties. Learned

counsel for the revision-petitioners relied on the decision of this court reported in V.K. Srinivasachariar v. K. Ramanujam and 4 others (1988

T.L.NJ. 129) in support of their contention. The ratio laid down in that case is not at all applicable, to the facts of this case. That was a case where

a will was executed in respect of certain properties, and in respect of one of the items, a provision was made for performing certain charities,

namely, half a measure of cooked rice should be prepared every day in the Tamil month of Margali and distributed to the devotees. The learned

Judge, on the facts of the said case, came to the conclusion that on a consideration of the language employed in the dispositive clause relating to

item 5 of the B schedule, there is no dedication of the property either to the temple or to any Trust for the performance of the charity; but only the

creation of a change over the income of the property for the purpose of the charity. The learned Judge found in that case that even though there is a

clause in the will that no encumbrance should be created, that property was capable of being divided or alienated subject to the performance of the

obligation imposed on the properties, the said decision is sot at ail helpful to the facts of this case. In the case on hand, by virtue of the trust deed,

the properties were dedicated for the performance of religious charities in the temple, the mere fact that the management vested with the members

of the family would not mean that they can go against the wishes of the person who created the trust and alienate the properties.

Even otherwise, on facts, I find that the petitioners have not made out any case of necessity for sale of the properties. It is seen that admittedly

the two buildings have been leased out on a monthly rent of Rs. 2,000/- each and that the net income derived from the. buildings is about Rs.

22,000/- per annum. Even according to the petitioners the income from the tamarind those per annum comes to Rs. 750/- As per the admission of

P.W.1, the annual income from 2 acres and 8 cents in Nanjaikalamanagalam village would be Rs. 5,000/- The income from the 13'' acres of ninja

land is stated to be Rs. 14,300/- per annum. The objectors have disputed the quantum of expenditure mentioned by the petitioners as Rs. 47,866.

It is contended that the petitioners have exaggerated the expenses. As per the trust deed, the petitioners have to maintain accounts. Significantly,

the petitioners have not produced their account books into court to show as to how much has been spent every year for religious charities and also

the income derived from the properties, learned counsel for the petitioner relied on the decision reported in In re Gundappa (A.I.R. 1961 Mys 6)

for the proposition that the Court has, in exercise of its extraordinary jurisdiction, power to go beyond the express provisions of the trust

instrument, in cases of emergency, cases not foreseen or provided for by the author of the trust. In the instant case, there is absolutely nothing to

show any such circumstances which warrant the sale of the properties contrary to the recitals of the deed wherein inaction is prohibited. The

prop6ition laid own in that case has been rightly held to be inapplicable to the instant case by thrower Coo Even though the petitioners have sited

that t value of the properties would be out Rs. 3khs and that the income will be Rs, 36,0 (-by way of interest, it has been (sic) on his own evidence

that 1 accrue land c be sold from Rs.50,000/- to Rs. 7000/- It is (sic) stated at the time of the against that ach tenant is prepared to purchasing for

Rs. 9 lakhs and that they have entered not an agreement to that effect with the petitioners. He, no reliance can be placed on e version the

petitioners even regarding e market value of the properties. Since his court greed with the conclusion of the lever court at the petitioners have no

right whatsoever alienate the properties and (sic) there into necessity for doing so, the queen of cohering the value of the properties dose not air

This Court also agrees with the serration the lower court that the value of e cultivations is increasing all these years a at the see time the value of

Rupees is deceasing. A. such, there is no necessity to givermissiono the petitioners to sell the proper and invent the proceeds in any nationalised

be. On a capful analysis of the entire materialized beer me,. I am of the view that thunder paid by the learned District Judge perfectly gal and

correct and that It does r suffer fro any infirmity, either legal or fact- On the her hand, the Court below has excised jurisdiction neither illegally north

mater irregularity so as to warrant this court to infers with the same in this revision. In result, the vision fails and stands dismissed waver, in is

circumstances of the case, there''ll be no or as to costs.