R. Vaikunthanathan vs Rajeevalochanachari (died), Sudamachariar and Srirama Pannachariar

M. Duraiswamy, J.—Since the dispute involved in the second appeal and in the civil revision petition pertains to the same trust, both the

matters are taken up together and disposed of by this common judgment.

The above Second Appeal arises against the judgment and decree in A.S. No. 79 of 1994 on the file of the Principal District Court, Chengleput

reversing the Judgment and Decree in O.S. No. 59 of 1981 on the file of the Subordinate Court, Tiruvallur.

The second plaintiff in the suit is appellant in the above second appeal. The respondents 1 and 2 are the defendants 9 and 10 and the 3rd

respondent is the legal representative of the deceased first respondent.

The above Civil Revision Petition has been filed against the order passed in O.P. No. 100 of 2008 on the file of Principal District Court,

Chengalpattu. The petitioner in the Civil Revision Petition is a third party to the proceeding. The respondent was the petitioner in the trust O.P.

The plaintiff filed the suit in O.S. No. 59 of 1981 on the file of the Subordinate Court, Tiruvallur to pass a decree framing a scheme for the

proper management of Deep Narayandoss Trust, safeguarding its properties and appointing trustees, committees, office bearers etc., with such

powers and duties for carrying out the regular kainkaryams and for the performance of activities relating to the trust fully specified under the will

dated 11.1.1910 and with a provision to put the trustees appointed in possession of the schedule mentioned properties and the moneys belonging

to the trust.

The brief case of the plaintiffs in the suit are as follows:

(i) According to the plaintiffs, one Deep Narayandoss endowed the house and lands in Sriperumbudur village, which is suit ''A'' schedule property

and also a sum of Rs. 15,000/ - in cash for performing certain charities and kainkaryams mentioned in his will dated 11.1.1910. Under the said

will, the said Deep Narayandoss appointed (1) Kulasekara Ramanujadoss (2) Madusudana Ramanujadoss (3) Deva Ramanujadoss (4) Dayalu

Ramanujadoss and (5) Kanyalal Sait as trustees to administer the trust and carry out the charities and other assets specified in the said will. As per

the said will, if any trustee died or had to quit the office, other trustees should co-opt another person from the family of the retiring or deceased

trustee as a trustee and only in the absence of any one in the family to be trustee, can take a stranger as a trustee. On the death of Kulasekara

Ramanujadoss, since he had no son, his brother''s son i.e., first plaintiff''s elder brother Ramakrishnamachar automatically became the trustee in his

place. The trustees were administering the trust guided Ramakrishnamachar as the Managing Trustee. In 1919, Ramakrishnamachar died and the

first plaintiff as his brother and heir, took charge as managing trustee. But after some time, since the first plaintiff could not always be in the village

but had to be at Chennai and had to go often to northern part of India found it impossible to be incharge of administration, on his behalf, appointed

one Jagannathadoss Trustee to specifically carry out the objects of the trust. The said Jagannathadoss was entrusted with the immovable

properties, cash and brass vessels to perform all the charities and kainkaryams as per the will on behalf of the trustees. The said Jagannathadoss

took possession of the properties and was administering the trust. During the period of his administration, with a cash entrusted to him and with the

income from the trust properties, purchased lands and house properties described in suit ''B'' schedule. As such, the said properties purchased by

Jagannathadoss also form part of the trust properties.

(ii) According to the plaintiffs, after the death of Jagannathadoss on 10.11.1957, the trust was being administered by the first defendant. The

plaintiffs came to know that Jagannathadoss has left behind a will dated 5.10.1957 to create a fresh trust of the properties described in suit A, B,

and C schedule, treating the said properties as his self acquired properties and appointing defendants 1 to 3 and Devagrandana Chari and

Garudothvaja Chariar as trustees. The said Jagannathadoss had no right, title or interest in the properties and to alienate them, as he was acting

only as an agent of the trustees appointed under the will of Deep Narayandoss. The will dated 5.10.1957 of Jagannathadoss is illegal, invalid and

inoperative.

(iii) According to the plaintiffs, the defendants 1 to 3, who are in possession of the trust properties, namely, suit A and B schedule, have no right to

be trustees or to be in possession of the trust properties. The defendants 1 to 3 are not administering the trust even as per the will of

Jagannathadoss. The first defendant had settled the trust lands in favour of the 4th defendant. He has also gifted away the lands described in item

No. 2 in schedule ''C'' to the 5th defendant. That apart, he has also alienated item Nos. 3 and 4 of ''C'' schedule, to defendants 6 and 7. The

defendants 2 and 3 are acting in collusion with the first defendant against the interest of the trust. The defendants 1 to 3 are not entitled to be

trustees or to be in possession of the trust properties. They are liable to be dispossessed and fresh trustees as per will dated 11.1.1910 of Deep

Narayandoss along with plaintiffs have to be appointed and the first plaintiff in view of the said relationship, is entitled to continue as a trustee.

(iv) According to the plaintiffs, the first plaintiff is the brother''s son of Kulasekara Ramanujadoss, one of the trustees appointed under the will of

Deep Narayandoss and he is entitled to continue as a trustee and if for any reason it is found that he is ceased to be one, he is entitled to be

appointed as one of the trustees. The settlement deed dated 12.1.1971 in favour of 4th defendant and settlement deed dated 12.5.1971 in favour

of 4th defendant are invalid and illegal. In these circumstances, the plaintiffs filed the suit for framing of scheme in respect of trust created by Deep

Narayandoss.

The brief case of the first defendant is as follows:

(i) According to the first defendant, the plaintiffs are not at all interested persons as defined in Section 6(15) of the Hindu Religious and Charitable

Endowment Act nor they are interested persons within the definition of Section 92 C.P.C. They are permanent residents of Chennai and never

came and resided at any time in the suit premises nor did they evince any interest at any time sofar in carrying on the charities or services in the

temple. The only authority that can settle a scheme or to deal with any dispute regarding this endowment is only Hindu Religious and Charitable

Endowment Board. The suit is barred u/s 9 C.P.C., by virtue of express bar under the Endowment Act 22 of 1959. In spite of the sanction of

Advocate General, the suit is not maintainable inasmuch as Section 92 C.P.C., will not apply to this trust which is religious and charitable

endowment as defined in Act 10 of 1951.

(ii) According to the first defendant, the suit trust is is a public trust and the said trust was created by Deep Narayandoss for public purpose and

religious purpose. Therefore the suit is barred u/s 108 of Endowment Act. Soon after the execution of will appointing trustees, the trustees entered

into possession and took charge of the trust and carried on the duties and Kainkaryams as propounder in the will.

(iii) According to the first defendant, C. Kulasekara Ramanujadoss was a bachelor and he had no brothers. Kulasekara Ramanujadoss belonged

to Tiwari section of Uttarathis and the plaintiffs belonged to Oja sub section. Kulasekara Ramanujadoss died before 1917. Kulasekara

Ramanujadoss was one of the five trustees and he alone could not have appointed Jagannathadoss ignoring the other four trustees in the trust

without other trustees in the trust. Jagannathadoss was only an assistant of all the trustees and he continued to assist the other trustees in the

management, as all the three trustees out of five died before 1922 leaving behind only the two trustees namely, Madhusundanadoss and Kanyalal

Sait.

(iv) According to the first defendant, at the time of appointment of trustees in 1922 only properties belonging to the trust as provided by Deep

Narayandoss were only 6.53 acres and they did not yield appreciable income. Jagannathadoss by his ability and tact purchased lands gradually not

at all with the aid of Deep Narayandoss trust or income there from, but from his own moneys, he got from various sources. There were other

trustees till 1933 and 1934 and all died one by one in 1934 or 1935 and there was only Jagannathadoss left alone as sole trustee and he was

managing as such and conducting the kainkaryams later till 1967 when he executed a trust deed and died. During all these period from 1916 till

1957 and later till 1972, the plaintiffs were never heard of and none of them ever came near the trust and its properties.

(v) According to the first defendant, all the properties acquired by Jagannathadoss were his self acquired properties. Therefore, he had every right

to deal with them. Jagannathadoss has every right to execute a will and create a trust of his own. He was not the agent of the trustees appointed

under the will of Deep Narayandoss. Jagannathadoss dedicated all his properties for the charitable and religious trust by his will dated 5.10.1957

and appointed five trustees namely, defendants 1, 2 and 3 and Garudodochar and Lakshmanachar to carry out the trust dated 5.10.1957 to carry

out trust dated 5.10.1957. Jagannathadoss died soon after on 10.11.1957. After his death, defendants 1 to 3 and other two trustees, administered

the trustees. Even otherwise, Jegannathadoss as one of the trustees, appointed in 1922 as sole surviving trust under a deed, had every right to

appoint trustees in pursuance of the provisions of the Deep Narayandoss Trust.

(vi) According to the first defendant, the property which was settled in favour of 4th defendant measuring an extent of 1.17 acres was purchased

by the first defendant himself on 29.11.1962. The first plaintiff was never the trustee and was never connected with the trust. In these

circumstances, the first defendant prayed for dismissal of the suit.

The brief case of the fourth defendant is as follows:

According to the fourth defendant, the said Jagannathadoss during his life time while he was in management of the trust, purchased large extent of

properties. During the fag end of his life, with the object of ensuring proper management of the mutt and the performance of certain religious

purpose after his life time, executed a will under which he appointed the first defendant and 5 others as trustees for the said purpose. The first

defendant during his life time of Jagannathadoss was doing domestic work and keeping the Mutt premises clean and was assisting him in the

performance of charities and kainkaryams done by him. Jagannathadoss in consideration of the continued services rendered by the first defendant

to the Mutt with the knowledge, consent and concurrence of the other trustees, settled item No. 1 of the ''C'' schedule property, which was

acquired by two settlement deeds executed by him, in her favour on 12.1.1971 and 12.5.1971. In these circumstances, the fourth defendant

prayed for dismissal of the suit.

The brief case of the 7th defendant is as follows:

According to the 7th defendant, the first defendant purchased an extent of 27 cents comprised in item No. 1 of the ''C'' schedule property and sold

the same to the 7th defendant on 10.11.1967 and he also took possession of the same. The property not being the trust property but belonging to

the first defendant. There was no breach of trust or any wrongful act. The first defendant after purchasing the property finding that there was no

income accruing from it, sold it to the 7th defendant. The 7th defendant is not in possession of the property. Therefore he is not a necessary party

to the suit. In these circumstances, the 7th defendant prayed for dismissal of the suit.

Before the trial court, on the side the plaintiffs, 4 witnesses were examined and 15 documents Exs. A-1 to A-15 were marked and on the side

of the defendants, 11th witness was examined as D.W.1 and 23 documents Exs. B-1 to B-23 were marked.

The trial court after taking into consideration, the oral and documentary evidences of both sides, decreed the suit.

Aggrieved over the judgment and decree of the trial court, the defendants 9 and 10 (who were arrayed as defendants 11 and 12 in the suit)

preferred appeal in A.S. No. 79 of 1994 on the file of the Principal District Court, Chengleput and the lower appellate court after taking into

consideration the materials available on record, reversed the judgment and decree of the trial court and allowed the appeal.

Aggrieved over the judgment and decree of the lower appellate court, the second plaintiff has filed the above second appeal.

The appellant in the second appeal has filed the C.M.P. No. 1092 of 2010 to mark 12 additional documents. According to the petitioner, the

respondents have encumbered the trust properties subsequent to granting of injunction by this Court in C.M.P. No. 6860 of 1996 and to prove the

subsequent conduct and activities of the respondents contrary to the terms of the will, the petitioner has filed the above petition to receive the said

documents as additional evidence.

C.M.P. No. 984 of 2010 has been filed by the respondents in the second appeal. According to the petitioners, the respondent/appellant along

with others, with common intention to cheat and defraud the petitioners and the trust, created false, fictitious and fraudulent documents and

registered the same on the file of Sub Registrar, Sriperumbudur. Since the said documents were not in the custody of the petitioners, they obtained

certified copies of the sale deeds from the concerned Sub Registrar''s office and sought to mark four documents as additional evidence.

C.M.P. No. 3314 of 2007 has been filed by the appellant to implead the Deep Narayandoss Trust as the fourth respondent in the second

appeal. According to the petitioner, since the lower appellate court set aside the judgment and decree of the trial court on the ground that the trust

has not been impleaded, he has filed the above petition to implead the trust as a party in the second appeal in order to over come the technical plea

raised by the respondents.

The third respondent in his counter has stated that the non impleading of the trust is fatal and the trust is a necessary and proper party. The suit

was filed in the year 1972 and now in the year 2007, the petitioner seeks to implead the trust as a respondent in the second appeal. According to

the third respondent,the trust is a necessary and proper party. Therefore the non impleading of the trust in the suit is not merely a technical plea.

Therefore, the third respondent prayed for dismissal of C.M.P. No. 3314 of 2007.

The proposed party/Trust in their counter has stated that the present petition was filed only to fill up the vacuum and to cure the flaw in the suit.

At the time of institution of the suit, consent was obtained from the Advocate General only for original defendants 1 to 8 and no sanction/leave was

obtained against the trust. Hence, in the absence of consent from the Advocate General, the trust cannot be impleaded as a party in the suit u/s 92

C.P.C. The present application filed in the year 2007 is barred by limitation. The present application cannot be taken up u/s 151 C.P.C. when

there is a specific provision under Order I Rule 10(2) C.P.C. is very much available. The reason for filing the application u/s 151 C.P.C. is just to

surpass the limitation and the same cannot be permitted u/s 151 C.P.C. In these circumstances, the proposed party/trust prayed for dismissal of

C.M.P. No. 3314 of 2007.

The brief case of the respondent in the civil revision petition is as follows:

According to the respondent (who was the petitioner in Trust O.P.), he filed the trust O.P. seeking permission to sell the petition mentioned

properties at the rate not less than Rs. 6000/ - per cent and for other reliefs. According to the respondent, the petition mentioned lands were

scattered and not in one block. If the lands are kept vacant, there is every possibility of encroachment and the respondent trust will be forced to

resort to prolonged litigation in civil and criminal courts. Therefore, the respondent trust has resolved to dispose of the properties on the prevailing

market value and invest the amount derived from the same and to meet out the expenses and carrying out the object of the trust. Hence the

respondent sought the permission of the District court to dispose of the properties.

Before the trial court, the managing trustee of the trust was examined as P.W.1 and 15 documents Exs. P-1 to P-15 were marked and the

guideline value was marked as Ex.C-1.

The District Court, after taking into consideration the case of the respondent, permitted them to sell the petition mentioned properties for not

less than a sum of Rs. 4,36,38,200/ -. Aggrieved over the order passed by the District Court, Chenglepet, the third party/petitioner has filed the

above civil revision petition.

According to the petitioner, since the trust O.P. is a summary procedure, the District Court, Chenglepet ordered the petition as prayed for.

The respondents in the above second appeal had set up the respondent in the civil revision petition with ulterior motive to file the trust O.P.

Therefore, the fair and final order in Trust O.P. Is liable to be set aside.

Heard Mr. V. Raghupathy, learned Counsel appearing for the appellant in the second appeal and learned Counsel for the petitioner in the civil

revision petition, Mr. S. Parthasarathy, learned senior counsel for the respondents 2 and 3 in the second appeal and Mr. A.N. Padmanabhan,

learned Counsel for the respondent in the civil revision petition.

At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:

Whether the lower appellate court is right in dismissing the suit filed for framing the scheme on the ground that Deep Narayandoss trust has not

been impleaded as a party to the suit there?

So far as C.M.P. No. 1092 of 2010 is concerned, the appellant in the second appeal has filed the petition to mark 12 additional documents.

The respondents did not file any counter and have no objection for marking those documents. Since the respondents themselves admitted the

execution of the said documents, this petition is ordered and the documents are marked as Exs. B-24 to B-35.

With regard to C.M.P. No. 984 of 2010 is concerned, the respondents in the second appeal have filed the petition to file four additional

documents. The appellant have no objection for allowing the said petition. The appellant also admitted the execution of the said document. In these

circumstances, the petition is ordered and the documents are marked as Exs.A-16 to A-19.

On a careful consideration of the materials available on record and the submissions made by both the counsels, it could be seen that under

Ex.A-1 will dated 11.1.1910 one Deep Narayandoss formed a trust with 5 founder trustees. In the said will Deep Narayandoss appointed (1)

Kulasekara Ramanujadoss (2) Madusudana Ramanujadoss (3) Deva Ramanujadoss (4) Dayalu Ramanujadoss and (5) Kanyalal Sait as trustees.

It is also not in dispute that Deep Narayandoss executed Ex.A-1 will for performing certain charities and kainkeryams. As per Ex.A-1 will, if any

trustee died or had to quit the office, other trustees should co-opt another person from the family of the retiring or deceased trustee as a trustee

and if there is no one in the family to be trustee, can take a stranger as a trustee. According to the plaintiffs, on the death of Kulasekara

Ramanujadoss, as he had no son, his brother''s son i.e., first plaintiff''s elder brother Ramakrishnamachar automatically became the trustee in his

place. The trustees were administering the trust guided Ramakrishnamachar as the Managing Trustee. According to the respondents, the appellant

alienated the trust properties against the terms of Ex.A-1 will.

Learned Counsel appearing for the appellant, in support of his contention, relied on the following judgments:

(i) P.N. Malkajigunda and Others Vs. Ramaswami Chettiar and Others, wherein the Division Bench of this Court held that in a suit u/s 92 C.P.C.

relief can be granted against the trustee but not against the alienees of the trust property.

(ii) S. Govindasamy Naidu and Others Vs. Poorna Valli and Others, wherein this Court held that in the case of the suit temples belong to a

particular community, the plaintiffs are worshipers in the temple, the suit having been filed by them plaintiff representing the entire members of the

community, the worshipers can maintain the suit for the purpose of preserving the properties endowed to the temple.

(iii) Gopalakrishnaswamy Picture Trust, by G. Pakkirisamy Vs. Nathaswaram Govindasamy Pillai (deceased), Navaneetham and G. Kumar,

wherein this Court held that a worshiper is entitled to file a suit for recovery of possession when there is wrongful alienation of the trust property.

Countering the submissions made by the learned Counsel for the appellant, learned senior counsel appearing on behalf of the respondents

submitted that the suit is not maintainable, since the trust was not made as a party to the proceeding. In support of his contention, he relied upon

the following judgments:

(i) 100 LW 182 S. Guhan and Ors. v. Rukmini Devi Arundale and Ors., wherein the Division Bench of this Court held as follows:

Merely because a sanction is granted, it does not mean that such a suit can be decreed. For the purposes of granting sanction, certain relevant

factors are taken into account, and a conclusion arrived at therein, does not preclude the court either to dismiss a suit or render a different finding

on going into the merits of the matter on the points which were taken into account in the application.

(ii) 2004 (1) CTC 321 L.M. Menezes and Ors. v. Rt. Rev. Dr. Lawrence Pius and Ors. wherein the Division Bench of this Court held that the

main purpose of Section 92 is to give protection to a public trust of a charitable or religious nature from being subjected to harassment by suits

being filed against them. Therefore, it provides that suits of this description can be filed by an Advocate General or two or more persons having

interest in Trust with leave of the court. Maintainability of of suit u/s 92 CPC depends upon the allegations in the plaint.

(iii) Sudhir G. Angur and Others Vs. M. Sanjeev and Others, wherein the Apex court held that ''Trust concerned is not only a proper party but

also necessary party. By deleting the trust from array of parties in the appeal, appellants have deleted a proper and necessary party''. Hence, the

appeal need to be dismissed for this reason.

(iv) Vidyodaya Trust Vs. Mohan Prasad R. and Others, . wherein, the Apex court held that when the suit was filed against public trust and it was

projected as for vindicating public trust, but emphasis was on certain purely private and personal disputes, leave cannot be granted u/s 92 C.P.C.

On going through the evidence of P.Ws, it could be seen that the appellant/second plaintiff is not a worshiper of the temple mentioned in the

will. That apart, the second plaintiff belonged to Oja community whereas Kulasekara Ramanujadoss belonged to Tiwari community. Therefore, the

plaintiffs could not be said to be from the family of Kulasekara Ramanujadoss. Since the first plaintiff in the suit prayed to appoint himself as a

trustee, it shows that he has got personal interest over the trust and he has no public interest as envisaged in Section 92 of C.P.C. The lower

appellate court has rightly found that the first plaintiff has got personal interest over the trust properties. However, to substantiate the contention of

the plaintiffs that the first plaintiff was a trustee, he has not produced any evidence for the same. The lower appellate court has rightly rejected the

said contention. The lower appellate court also rightly came to the conclusion that the first plaintiff got personal interest for filing the suit. The

plaintiffs failed to prove that they have initiated the suit only for the interest of the trust.

With regard to impleading petition C.M.P. No. 3314 of 2007, filed the appellant, the said petition has been filed u/s 151 CPC. When Order I

Rule 10 CPC is available for impleading a third party, the appellant has chosen to file the petition u/s 151 C.P.C The second appeal is pending

from the year 1996. The suit was filed on 13.12.1972. In spite of the fact the suit was filed in the year 1972, the lower appellate court allowed the

appeal in the year 1996. Even after the disposal of the first appeal, the appellant did not take any steps to implead the trust as a party in the

proceeding. The present application has been filed only in the year 2007. The lower appellate court has specifically found that the suit is not

maintainable without making the trust as a party.

The learned Counsel appearing for the appellant relied upon a judgment reported in M. Palaniswamy Gounder Vs. Nachimuthu Gounder and

Others, wherein the Division Bench of this Court held that u/s 151 C.P.C., the court can take notice of subsequent events to grant relief in view of

changed circumstances.

The learned Counsel appearing for the respondent relied upon a judgment reported in 2006 (5) CTC 325 Govindammal and Anr. v. K.

Velmurugan and Ors. wherein this Court held that the parties cannot be ordered to be impleaded at appellate state in an attempt to fill up lacuna.

Therefore, in spite of the fact that the second appeal is pending from the year 1996, having kept quiet for all these years and filed the

impleading petition only in the year 2007 and that too, u/s 151 C.P.C., when Order I Rule 10 C.P.C. is available, it clearly shows that the

appellant has filed the application only to fill up the vacuum that too after 28 years from the date of filing of the suit. Hence, the said application

deserves no merit and it is liable to be dismissed. Accordingly, C.M.P. No. 3314 of 2007 is dismissed.

Applying the principles laid down in 100 LW 182 (referred supra), a suit filed u/s 92 CPC for framing a scheme for proper administration of

the trust, the trust being absolutely necessary party and not been impleaded as party in the proceeding, the suit deserves to be dismissed. The

lower appellate court has rightly dismissed the suit.

So far as with regard to Civil Revision Petition is concerned, the trust O.P. was filed by the respondent in the civil revision petition to permit

him to sell the petition mentioned properties to invest the sale proceeds in a bank. Admittedly, the trust is a public trust. The present petition has

been filed u/s 34 of the Indian Trust Act. The District court ordered the petition as prayed for and granted permission to the respondent to dispose

of the property.

However, it is pertinent to note that Indian Trust Act 1882 do not apply to public, religious or charitable trusts. It is not in dispute that the

respondent trust is a public trust. That being the case, the learned District Judge committed an error in allowing the trust O.P. filed u/s 34 of Indian

Trust Act. When the Act itself does not apply to the respondent trust, the District court ought not have allowed the petition filed u/s 34 of the Act.

Since the trust O.P. itself is not maintainable, the fair and final order made in Trust O.P. No. 100 of 2008 on the file of Principal District Judge,

Chenglepet is liable to be set aside. Accordingly, the same is set aside and the civil revision petition is allowed. No costs. Consequently, connected

miscellaneous petition is closed.

With regard to second appeal, I find no ground much less substantial question of law to interfere with the judgment and decree of the lower

appellate court. The second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. M.P. Nos. 1092 of 2010 and 984 of

2010 are allowed and C.M.P. No. 3314 of 1997 stands dismissed. However, there shall be no order as to costs.