Sri Kanyaka Parameswari Devasthanam and Charities and Others vs Mohta Electricals and Others

S.S. Subramani, J.—A.S. Nos. 976 and 1011 of 1994 have been filed by two sets of defendants in O.S. No. 10358 of 1989, on the file of

City Civil Court, Madras. Tr. Appeal No. 10 of 1997 has been filed by the plaintiff in O.S. No. 10256 of 1989, on the file of the same court.

The first suit was filed by the plaintiff in O.S. No. 10256 of 1989 for the relief of permanent prohibitory injunction, restraining the defendant, his

men and agents from in any way committing trespass or interfering with the peaceful possession and enjoyment of the property bearing Door No.

139, Govindappa Naicken Street, Madras-1 and also for other consequential reliefs. Defendant is the plaintiff in the connected suit.

Plaint allegations in O.S. No. 10256 of 1989 may be summarised as follows:

It is said that the schedule property belonged to the plaintiff, which is one of several other properties in the possession and management of the

plaintiff. It is said that it was originally let out to M/s. A.T. Meherwada, plaintiff, as owners of the property, filed a suit for delivery of vacant

possession in O.S.No.2503 of 1976 and the same was decreed on 18- 8-1980. Defendant therein filed appeal and second appeal, both without

success, and finally the property was taken possession by plaintiff. Thereafter, with the sanction of Board of Directors consisting of the

Dharmakartha and Trustees, the superstructure in Door No. 139. Govindappa Naicken Street, Madras-1 was demolished after getting sanction

from the Local Authority. It is said that thereafter a shopping complex has been put up by investing more than Rs. 4 Lakhs, and the construction is

still in progress. It is said that the plaintiff has put up shops in the ground floor and has negotiated to let out the same to tenants and has also

received advance from the prospective tenants. In the meanwhile, defendant, being the occupant of the adjacent property made an offer by his

letter dated 7-8-1987 requesting for lease of the entire property for a period of 20 to 30 years offering to pay a monthly rent of Rs. 2,500. The

said offer was not considered by the Board of Trustees as the premises was constructed as a shopping complex for being let out to several tenants.

The defendant again sent a letter on 19-1-1988, requesting for a reply. It is further said that the plaintiff finalised the offers from the prospective

tenants to let out the ground floor shopping complex, and in the meanwhile, the defendant, being aggrieved of the entire property not having been

let out to him, approached the Dharmakartha of the plaintiff-Institution and appears to have made arrangements to obtain a lease of the property,

even though Dharmakartha was not in possession and also not having any right to let out the property or execute any lease deed. It is further said

that while the work was in progress, the Dharmakartha of the plaintiff- Institution sent a letter on 18-10-1989, requesting for handing over the

property bearing Door No. 139, Govindappa Naicken Street, Madras-1, for his management and followed the same by a letter dated 30-10-

1989 stating that huge amounts had been spent for the construction of the property and requested for handing over the property to him. Plaintiffs

have sent a reply on 3-11-1989 stating that Dharmakartha is not entitled to claim possession of the property or grant any lease. It is further stated

by the plaintiff that on 4-11-1989 the defendant with the assistance of local police officials, threatened the workers carrying out the construction

work to hand over possession. The apprehension of the plaintiff is that the Dharmakartha, along with defendant, is likely to interfere with the

possession of the Institution by committing trespass and taking forcible possessional. According to plaintiff, the defendant is an utter stranger, and

he has no right to disturb the plaintiff''s possession of the property or commit trespass. Therefore, the suit was filed for the reliefs stated above.

In the written statement filed by the defendant, he contended that the suit as framed is not maintainable. It is further said that the plaint property

has not vested with the plaintiff, but it is vested in the Dharmakartha, who is the sole Kattalai Trustee. According to him, the suit property is not

part of the estate of plaintiff, and, by virtue of settlement deed dated 23.10.1930 executed by N.T. Ramanujam Chetty, the Hereditary Trustee of

the plaintiff in his capacity as sole trustee, should perform the charity as set out therein. It is further alleged that there is only a partial dedication for

charity, and the dedication is not absolute. Only a charge on the income of the property for performance of the charity is created. It is further said

that the present Dharmakartha of the plaintiff-Institution, on 26-10-1989, executed a registered lease in favour of the defendant for a period of 10

years at a rate of rent of Rs. 3,000 per month with a deposit of Rs. 30,000. He has further contended that he filed O.S. No. 10358 of 1989, for

getting possession of the property. He therefore, said that the plaintiff is not entitled to any relief, and the suit for injunction cannot be sustained.

In O.S. No. 10358 of 1989, plaintiff, who is the defendant in the earlier suit, has claimed his right on the basis of a lease deed executed by the

Dharmakartha who was impleaded in his suit as second defendant. In that plaint, it is averred by him that the schedule property is owned by the

second defendant and the same is known as the estate of N.T. Ramanujam Chetty represented by its Sole Trustee T.V. Cunniah Chetty.

According to him, the lease deed executed by Dharmakartha is valid, and, as title-holder from the Dharmakartha, he is entitled to get possession of

the plaint property from the plaintiff in the earlier suit and the Board of Trustees.

In the written statement filed in that case by the first defendant, they reiterated that the property belonged to the charities and the second

defendant Dharmakartha alone is not entitled to execute a lease and, therefore, it is invalid. It is further averred that as per the original settlement

deed, the property absolutely vested with the charities, and it is not a partial dedication as alleged. It is also contended by them that the second

defendant is also a party to various resolutions, and he was well aware as to who constructed the building. It is also averred that in the earlier

proceedings for evicting the tenant, the dharmakartha has also jointly executed a power of attorney along with the Board of Trustees. For these

reasons, they prayed for dismissal of that suit.

It is seen that the plaint was subsequently amended by impleading additional defendants 3 to 5, who were tenants occupying different portions of

the building. After impleading, defendant No. 5 filed a written statement. He also contended that the plaintiff in that case has no right over the

building, and the charities are the owners of the same.

On the above pleading, Trial Court recorded both oral and documentary evidence, in the later suit, namely, O.S. No. 10358 of 1989. Plaintiff in

that suit was examined as P. W. 1. Second defendant was examined as P.W.2 and one S. Venkataswami was examined as P.W.3. On the side of

the defendant one of the Trustees was examined as D.W. l. As documentary evidence, Exx. A1 to A20 were marked, and on the side of the

defendant Exx D-1 to D-34 were marked. Report of Commissioner appointed in that case was marked as Ex. C-1.

The trial Court, after discussing the entire evidence, came to the conclusion that O.S. No. 10256 of 1989 is liable to be dismissed, and in the

other suit, namely, O.S.No.10358 of 1989 a decree was granted in favour of the plaintiff to recover the property from the first defendant in that

case. The trial Court found that as per settlement deed Ex. A-1 executed by the original owner of the property, the Dharmakartha is entitled to

lease out the property and the lease in favour of the plaintiff in the later suit is valid. It further found that the Trustees of the Charities have no right

over the properties, and even if there is any conduct on the part of the dharmakartha, that will not affect the dharmakartha''s right to lease the

property. The principle of estoppel was also found against the appellant. The lower court was also of the view that the plaint property has not

vested over the Trust or the Temple, as seen from Ex. A-1. It was further of the view that if the ownership is to be transferred, it can only be by a

registered instrument. Since there is no registered instrument in favour of the Trust, the Temple or the Charities cannot claim any right over the

property. It was further found that there was no dedication of the property. It was further found that the earlier litigation to which the plaintiff was

also a party has no legal effect so far as the right of the dharmakartha to lease out the property is concerned, and the decision in that case is not

relevant for deciding the issue in this case. So holding, it was found that the lease executed by the second defendant is valid, and on the basis of

that title, the Charities along with Board of Trustees were directed to handover possession of the property. It is against the judgment in O.S. No.

10358 of 1989, two Appeals, namely Appeal No. 976 and 1011 of 1994 were filed before this Court.

As I said earlier against the judgment and decree in O.S. No. 10256 of 1989, an appeal was filed before the IV Additional Judge, City Civil

Court, Madras, as A.S.No.212 of 1994. The same was withdrawn to this Court to be heard along with the other two appeals.

The main point to be considered in this, case is, what is the legal effect of Ex. A-1. The settlement deed was executed by the original owner

late N.T. Ramanujam Chettygaru. It is better to extract the relevant portion of the deed. It reads thus:

(1) NOW THIS INDENTURE WITNESSETH that in pursuance of the said desire and in consideration of his affection for his grand- daughter

the donee herein and in consideration of the donee having protected the settler so far and of her agreeing and undertaking to protect the settler for

the rest of his lifetime the Settler hereby grants unto the donee a right to enjoy after the Settler''s lifetime the House and Ground No. 9, Govindappa

Naicken Street, George Town, Madras, of the value of Rs. 15,000 (Fifteen thousand rupees) more particularly described in the Schedule A

hereunder with power to enjoy herself the entire property during her lifetime by herself living therein but she shall have no rights to mortgage or sell

same.

(2) The Settler is to enjoy the said properties in the Schedule ''A'' and ''B'' during his life time without any right to sell or mortgage the same and

after his life time the said property described in Schedule ''A'' hereunder shall be enjoyed by the Donee in manner aforesaid for her life time and

after her lifetime the said property shall be taken possession of by M.R. Ry. Collah Venkata Raghava Chetty Garu the Dharmakartha of Sri

Kannika Parameswari Devasthanam Charties, Kothaval Market, Madras or his successor in Office as such dharmakartha for the time being.

(3) The said dharmakartha shall lease the said property and collect the rents from the said property and after paying all taxes and charges for

repairs utilize the balance for the expenses of the Navarathiri Vijayadasami parvettai Oothsavan of Sri Mannika Parameswari and the title deeds of

the said property in Schedule ''A'' have been handed over to the said M.R. Ry. Collah Venkata Raghava Chetty Garu, the dharmakartha of Sri

Kannika Parameswari Devasthanam Charities.

The settlor hereby appoints the following persons as Trustees:

(i) Sathrasala Venkataraghavulu Chetty Garu son of S. Venkatakrishna Chetty Garu Hindu Vysia of the Momuti Caste land- holder residing at No.

10, Govindappa Naicken Street, Madras:

(ii) Vattam Seshiah Chetty Garu Hindu Vysia of the Komuti Caste, shroff Merchant residing at No. 26, Kasi Chetty Street, Madras, and

(iii) Erusala Thiruvengadanathan Chetty Garu son of E. Nammalwar Chetty Garu Hindu Vysia of Komuti Caste residing at No. 31, narayana

Mudali Street, George Town, Madras hereinafter called ""The Trustees.

xxx xxx xxx

Schedule ''A'' above referred to

House and Ground No. 9, situate on the western row Govindappa Naicken Street, in the Sub Registration District of sowcarpet within the

Registration District of Madras-Chingleput bounded on the North by Satrasala Venkakrishnama Chety''s house, on the South by Murugapuram

Gurvaja Ammal''s House, on the East by Govindappa Naicken Street, and on the West partly by the house belonging to Sathrasala

Venkatakrishnappa Chetty and partly by house belonging to Murugapuram Gurvaja Ammal bearing Collector''s certificate No. 6320 old Survey

No. 2892 and Re- survey No. 10562 measuring in all 865 Height hundred and sixty five square feet or thereabouts.

Immediately after the execution of Ex.A-1 settlement deed, the legal adviser of the executant, namely, Mr. Venkata Raghavachari, wrote to the

dharmakartha of Sri Kannika Parameswari devasthanam Charities on 7-11-1930, informing him about the settlement. In that letter, learned

Advocate informed the then Dharmakartha that Ramanujam Chetty has executed a settlement deed in and by which among other things, the

income from the said house in Door No. 9, Govindappa Naicken Street, Madras has been dedicated for some festivals of Sri kannika

Parameswari at Kothaval market, Madras. Along with that letter, the certified copy of the settlement led and also the title deed of the property

were sent to it. Ex.B-28 is that letter, and Ex.B-29 is the list of documents appended to that letter. Immediately after receipt of Ex.A-28, the then

dharmakartha Sri Raghava Chetty wrote to the Secretary of the Charities about the settlement deed and he wanted the Secretary to secure the

same in an iron safe. That letter is marked as Ex.B-30, and the list of documents appended to the same is marked as Ex.B-31. Immediately, the

Secretary wrote back to the Dharmakartha, acknowledging receipt of the settlement deeds and various title deeds. The same is marked as Ex.B-

Thereafter, the Managing Committee of Sri Kannika Parameswari Devasthanam held a meeting on 8.12.1930 acknowledging the receipt of

settlement deed and other documents and the Secretary noted therein that the documents received by its to be secured and events referred to

therein have to be carefuly watched. As per Ex.B-34, the Secretary of the Charties prepared a memo stating the contents of the deed and also the

result of the meeting, wherein it is said that the house in Ground No. 9. Govindappa Naicken Street, Madras should go to the Charties after the

death of the Donee, i.e., his granddaughter Meenavalli Choodamani Ammal. The other relevant portion of the settlement deed is also made known

in the memo. Learned counsel relied on those letters only for the purpose of showing the intention of the settlor. The original title deeds were

handed over to the Charties immediately after the Settlement Deed. That shows that the Charities have become the owner and the settlor and his

granddaughter thereafter had only a right of enjoyment and even the possessory right vested with the Charities after their death. According to

learned counsel, Ex.A-1 read along with the subsequent documents clearly shows that there was an absolute vesting of the ownership in the

Charities, learned counsel further relied on the various Committee Meetings of the Board of Trustees in which the second defendant was the

President. So far as the plaint schedule property is concerned, the same was dealt with in the various meetings as outside property, 139,

Govindappa Naicken Street, Madras. Second defendant, who was the President of the Managing Committee actively participated in all the

proceedings and the various discussions in the Board Meeting were also brought to my notice. Along with the same, learned counsel also relied on

a suit filed by the Charities for evicting the earlier tenant from the buildings. In that suit, namely, O.S.No.2303 of 1976, tenant contended that the

Charities have no right to institute the suit and the property is not vested in the Charities. It was further contended that only the Dharmakartha has

got the right, learned counsel brought to my notice various judgments that were passed wherein the title of the Charities was found in their favour

and held that the suit was properly instituted. Ex.B-36 is the copy of the judgment of the trial court. Ex.B-18 is a judgment in Second Appeal No.

1744 of 1982 in that case where the eviction decree was confirmed. In paragraph 10 of the judgment of this Court, a learned Judge of this Court

considered the question as to how far the suit instituted by the Charitable Institution is maintainable. While considering the same, the learned Judge

took into consideration not only the earlier settlement deed but also the earlier Scheme Decree relating to the administration of the Sri Kannika

Parameswari Devasthanam charities. Why these two were taken into consideration was, by virtue of the settlement deed, the direction given

therein by the settler was taken as a specific endowment for Sri Kannika Parameswari Temple. Since there was specific endowment, the

Directions in the scheme decree also had to be followed. In C.S.No.222 of 1895 the scheme decree was passed. Ex. B-5 is a copy of the decree,

wherein it was provided thus:

and this Court doth by and with the like consent order and decree that the entire management of the affairs of the said temple and endowments and

the charities connected therewith be and the same are hereby vested in the defendant as the dharmakartha for the time being and all future

Dharmakarthas of the said temple and jointly with the said Committee of Management for the time being and their successors.

The defendant in that case was the then Dharmakartha of the Temple, i.e., Collah Venkata Cunniah Chetty. From these wordings in the scheme

decree, it is clear that the affairs of the Temple and all its endowments shall be in the management of the dharmakartha jointly with the Committee

of Management. If the endowment also forms part of the scheme decree, we have to consider as to what is the scope of the settlement. I have

already extracted the relevant portion of the settlement, marked as Ex.A-1 in the suit. A reading of that document makes it clear that from the date

of the settlement, the settler shall enjoy the property without any right of alienation and the grand daughter who is described as donee also will have

only that right. So, even on that date, the ownership has ceased to be with the settler. Immediately thereafter the original title deed is also handed

over to the parties, as could be seen from the various correspondence which I have mentioned of earlier. In paragraph 2 of Ex.A-1 it could be

further seen that A and B schedule properties therein shall be taken possession of by K.V.R. Chettigaru, Dharmakartha of Sri Kannika

parameswari Devasthanam Charities, Kothaval Market, Madras and successor-in-office as such Dharmakartha for the time being. Paragraph 3

further says that the said Dharmakartha shall lease the suit property and collect the rent from the said property, and the entire income shall be used

for the purpose of the festivals in the temple. Along with Ex.A-1 the settler also appointed various trustees. The property became vested with the

Dharmakartha immediately after Ex.A-1. It was thereafter the Scheme Decree was prepared. Under the Scheme Decree, the dharmakartha and

the Board of Management had to jointly manage the Temple and all the endowments. A reading of the settlement along with the scheme decree

shows that the property is vested in the Charities and the same has to be managed as per the provisions of the Scheme Decree. If so, the only

conclusion that could be arrived at is, the second defendant by himself cannot deal with the property as he likes. The subsequent conduct of the

second defendant also supports the earlier suit, the second defendant himself along with other Committee Members, jointly executed Power of

Attorney and the said Power of Attorney was also held to be valid. If the second defendant alone was the sole Trustee, the Charities would not

have filed a suit and obtained a decree for eviction. Second defendant cannot contend that the Charities have no right especially when he himself

participated in the various deliberations in which the plaint property was also the subject matter and he executed a power of attorney for

conducting the litigation. From the wording, in Ex.A-1, the Scheme decree and also the subsequent conduct, it can be seen that the second

defendant can be considered as Managing Trustee or dharmakartha and that he has to act jointly along with other Trustees. The question that

arises for consideration is whether the lease deed executed by the second defendant in favour of plaintiff in O.S. No. 10358 of 1989 is in any way

valid.

If the management is vested in more than one Trustee, all the Trustees should execute the sale deed, otherwise, it is invalid. If any legal support

is required for this position, reference can be made an early decision of the Supreme court reported in L. Janakirama Iyer and Others Vs. P.M.

Nilakanta Iyer and Others, . In that case, a conveyance deed was executed by two out of three trustees. Their lordships followed an earlier

decision of Privy Council reported in AIR 1945 23 (Privy Council) , and held that where only two out of three trustees had joined in the execution

of the sale deeds of the trust properties in the administration of the trust, the sale deeds must be held to be invalid and could pass no title to the

alliance.

In Abdul Rahaman Vs. Sm. Angur Bala Manna and Another, , a similar question came for consideration as in this case, a lease deed was

executed by the Managing Trustee without the concurrence of other Trustees relying on Section 48 of the Trusts Act, a learned Judge of the

Calcutta High Court held thus:

Where plaintiff sued for declaration of her tenancy and the alleged tenancy was found to be created in respect of trust property by managing

trustee acting singly without concurrence of other trustees, it was held that the plaintiff had no valid tenancy as the managing trustee had no power

or authority to create such lease"".

The managing trustee had a right only to administer the trust property under the supervision of the trustees. Creation of tenancy in the contact of

tenancy enactments applicable, practically amounted to alienation of property. Such power cannot be an element of administration of trust

property, which even, in the instant case, was subject to supervision of the trustees.

In Maruthi Enterprises Vs. Muniyanjamma and Others, , a learned Judge of that High Court has also held in paragraph 13 of that judgment

thus:

It is laid down in AIR Manual. Vol.21 - 3rd Edn. on page 385 as:

Two or more trustees appointed. They all form but one collective trustee and they must exercise jointly all these powers that call for their discretion

and judgment, unless the instrument of trust authorises a sole trustee to execute the trust and the power thereof. The body of co-trustees can

authorise one of them to perform acts which cannot conveniently be performed by them all, but the trustee who is so authorised is considered to be

an agent of all co-trustees and not as an individual trustee, (vide Lakha Singh Hamir Singh Vs. Harbhajan Singh Sunder Singh and Another,

It is also laid down on page 386 as:

Co-trustees cannot act singly Managing Trustees have no power to create lease without concurrence of other trustees, (vide Abdul Rahaman Vs.

Sm. Angur Bala Manna and Another, )

Admittedly in this case the lease is created by Shamji along. Therefore in view of the said decisions and especially in the light of the principles laid

down by the Supreme Court in the said case and in view of the clear provisions contained in Section 48 of the Trusts Act, it follows clearly that the

lease created by Shamji alone to the exclusion of the co-trustee plaintiff -2 is bad at law and does not convey any right, title or interest to the

defendant.

Once I hold that the second defendant himself cannot act alone and execute a lease deed, naturally, the plaintiff will not be entitled to any right. He

has no title to recover the property from the charities.

In N. Suryanarayan Iyer''s Indian Trust Act -4th Edn. (1992) at page 261, the learned author has said thus:

Managing Trustees. - Where there arc more than one trustee, Section 48 of the Act lays down that all of them must join since one of them cannot

act singly. Accordingly managing trustees have no power to create lease without concurrence of other trustees. See Abdul Rahaman Vs. Sm.

Angur Bala Manna and Another, .

If all the trustees do not join in execution of the conveyance of the trust property, the conveyance is invalid and such a conveyance passed no title

to the alienees. All trustees form one collective trustee and must exercise powers in joint capacity and not separately, -vide Supreme Court in L.

Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, .

Consequently, a lease which is transfer within the meaning of Section 15 of the Transfer of Property Act, created by one of the co-trustees is bad

at law and does not convey any right, title or interest to the lessee defendant and he becomes a trespasser. See Maruthi Enterprises Vs.

Muniyanjamma and Others, .

If that be so, I have to hold that the decree granted by the lower court in O.S. No. 10358 of 1989 has to be set aside and the suit will have to

be dismissed. Consequently, A.S. Nos. 976 and 1077 of 1994 have to be allowed.

The Transfer Appeal is by the charities against dismissal of the suit. That suit is only for an injunction. Admittedly the property is now in the

possession of the Charities. The relief claimed in the suit is only an injunction restraining the so called lessee from the second defendant in the other

suit, from trespassing into the property. In view of my earlier finding, the property has vested in the Trust through the Charities and the same is in

possession. It is entitled to have its interest protected from third person unless he has got better title. I have already held that the lease deed

executed by the second defendant is not valid, and the so called lease will not confer any title to him, and if he enters into the property, he can be

considered only as a trespasser. In that view of the matter, the dismissal of the suit has to be set aside. There will be decree as prayed for. Transfer

Appeal No. 10 of 1997 is allowed, by granting an injunction it should not be understood that the parties are entitled to deal with the property in

any manner. That is not a matter to be decided in the Appeal. I am only protecting the possession of the Charities as Trustees of the property.

There will be no order as to costs in these Appeals.

In the result, all the Appeals are allowed, however, without any order as to costs.