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Judgment
M. Jeyapaul, J.—Original Application No. 1201 of 2008 is filed seeking an order of injunction restraining the second respondent from
selling the petition schedule properties pending disposal of the suit.
Original Application No. 803 of 2008 is filed seeking to appoint a receiver/administrator to take charge of the properties of the first respondent
Trust to administer the same pending disposal of the suit.
Application No. 5967 of 2008 is filed seeking to vacate the order of injunction dated 18.11.2008 passed by this Court in Original Application
No. 1201 of 2008 in C.S. No. 698 of 2008.
The plaintiffs have filed the suit praying to settle a scheme for the administration of Gnanamuthammal Trust and also to appoint a Trustee to
administrate the Trust properties and vest the Trust properties in the Trustee so appointed. Leave was already granted to the plaintiffs to file the
suit u/s 92 of the Code of Civil Procedure.
Brief contention of the plaintiffs: The first defendant Gnanamuthammal Trust is a public charitable Trust. Late Janaki Ammal the then hereditary
trustee of the Trust filed C.S. No. 724 of 1990 and got permission from this Court to sell one of the properties of the Trust in Linghi Chetty Street,
Chennai. Late Janaki Ammal died on 3.11.1990. The second defendant Mrs.Rajamanickam got letters of administration annexed with the Will
executed by late Janaki Ammal in O.P. No. 627 of 1990 with respect to the individual properties of Janaki Ammal bequeathed in favour of
Mrs.Rajamanickam. As far as the Trust properties are concerned, Janaki Ammal has not nominated any one to succeed her. Bharathi Kudisai
Vazhvor Sangam filed a suit against defendants 2, 3 and 4 on the file of the District Munsif Court, Thiruvottiyur in O.S. No. 186 of 2001 to
restrain them from converting the Trust property as private property of the second defendant. The Trust properties consist of 3.90 acres of land in
S.Nos.171 and 172 Kaladipet, Sathankadu Village, Ambattur Taluk, Thiruvallur Village and a sum of Rs. 5,25,000/= in deposit in Syndicate
Bank, Mount Road Branch. Defendants 3 and 4 would claim that the second defendant sold away 2163 sqft of Trust property to them. The
plaintiffs are the tenants of the first defendant Trust. There is no one to collect rent from the tenants in occupation of the Trust properties. The
second defendant also repudiated the Trust. The second defendant has been selling the Trust properties treating the property as her individual
property. Therefore, necessity has arisen to injunct the second respondent from alienating the petition schedule mentioned properties and also to
appoint an Advocate Receiver to administer the properties of the Trust.
The brief contention of respondents 2 to 4 found in their respective counter: The second defendant is the absolute owner of the property
comprised in S.Nos.171 and 172 Sathankadu Village, Ambattur Taluk, Thiruvallur Village measuring 3.89 acres. Unless it is established that the
properties belong to the Trust, there is no scope for entertaining the present applications. The second defendant has obtained patta. The entire
revenue records pertaining to the subject property stand in her name. The second defendant sold away a portion of the property to
Muthumalairaja, father of defendants 3 and 4. The plaintiffs and other tenants filed O.S. No. 186 of 2001 on the file of the learned Judicial
Magistrate cum District Munsif, Thiruvottiyur against the defendants. The learned District Munsif, Thiruvottiyur dismissed the suit and gave a finding
that the suit property does not belong to the alleged Gnanamuthammal Trust. The learned District Munsif also observed that the second defendant
Mrs.Rajamanickam is the absolute owner of the suit property. As against the orders passed by the Revenue Divisional Officer, an appeal was
preferred by the plaintiffs before the District Revenue Officer, who chose to dismiss the appeal. Neither Gnanamuthammal nor Janaki Ammal were
the owners of the suit property. Mrs.Rajamanickam, the second defendant herein is the direct descendant of Nachappa Chetty. Taking advantage
of the old age of the second defendant the tenants are making attempts to appropriate the property of the second defendant. Therefore, the second
defendant would contend that the applications praying for order of injunction and also for appointment of Advocate Receiver are liable to be
dismissed.
The points that arise for determination are:
i) Whether the plaintiffs are entitled to an order of injunction.
ii) Whether the plaintiffs have made out a case for appointment of Advocate Receiver to administer the suit properties.
Learned Counsel appearing for the plaintiffs would submit that the antique documents filed by the plaintiffs would go to establish prima facie that
Gnanamuthammal created a Trust in her name. Janaki Ammal, who was the descendent of Gnanamuthammal accepted her status as hereditary
Trustee of Gnanamuthammal Trust and got permission to alienate a part of the Trust property from this Court. It is his further submission that
though the District Munsif, Thiruvottiyur dismissed the suit filed by Bharathi Kudisai Vazhvor Sangam in O.S. No. 186 of 2001, the judgment
passed in the said suit will not operate as res judicata as far as the plaintiffs are concerned, who were not parties to the said suit. Further, he would
contend that the decision rendered by the learned District Munsif, Thiruvottiyur is now subject to appeal. Inasmuch as there is no one to receive
the rents from as many as 100 tenants, who have been in occupation of the Trust property and the activities of the Trust are not properly taken
care of, the necessity to appoint an Advocate Receiver has arisen. He would further submit that if the second defendant, who has already alienated
a part of the suit property to the father of defendants 3 and 4, is not injuncted, the Trust properties would be completely alienated.
Learned Counsel appearing for respondents 2 to 4 would submit that inasmuch as the tenants having formed an Association in the name and
style Bharathi Kudisai Vazhvor Sangam and laid a suit in O.S. No. 186 of 2001 praying for an order of injunction and the same was negatived by
the Trial Court, these plaintiffs cannot now challenge the title of the second defendant more especially when the title to the subject property was
already decided by the court. He would further submit that material documents have been produced to show that the subject properties are not
Trust properties. The second defendant has inherited the property from her ancestors. There is no iota of evidence to show that the Trust ever
functioned. The plaintiffs have come with a vexatious suit to stall the original owner from dealing with the properties. As there was no prima facie
material to show that the subject properties are the Trust properties, there is no question of any appointment of Advocate Receiver to administer
the suit properties, it is submitted.
The communication received from the Directorate of Archaeology and Excavation dated 23.2.1990 and the communication dated 27.6.2005
emanated from the Superintendent of Department of Archaeology would show prima facie that Gnanamuthammal, wayback in the year 1749,
created a Trust in her name with respect to the property at Kaladipet, Thiruvottiyur and also the property at Linghi Chetty Street. Having endowed
the subject property as well as the property at Linghi Chetty Street, she has specifically directed to perform certain religious rituals. The creation of
the Trust is found from a stone inscription on the Mandapam in Kaladipet.
P.Janaki Ammal, the sole hereditary Trustee of Gnanamuthammal Trust, very recently in the year 1990, filed O.S. No. 724 of 1990 and
sought for permission to sell away the property of the Trust at Linghi Chetty Street. She has very specifically stated that the first defendant Trust
viz., Gnanamuthammal Trust was created in the year 1979 as per the stone inscription at Mandapam in Kaladipet. She has also admitted the fact
that the Trust was created by Gnanamuthammal for maintaining the choultry at Kaladipet, feeding the poor brahmins and distributing buttermilk to
the worshippers during the Brahmotsavam at Thiruvottiyur. The other object is to give Mandagapadi during the Parvettai festival. The suit
properties in Kaladipet also was referred to by P.Janaki Ammal in the said suit as properties of the Trust in occupation of the tenants who have put
up superstructures paying land rent only.
If there was no Gnanamuthammal Trust and the petition mentioned properties and the properties at Linghi Chetty Street were/are not the
properties of the Trust, P.Janaki Ammal would not have sought permission from the court to sell away the property at Linghi Chetty Street and
would not have described the petition mentioned properties as the properties of Gnanamuthammal Trust.
The second defendant Mrs.G.Rajamanickam has obtained letters of administration with the Will annexed as per the proceedings in O.P. No.
627 of 1990. Mrs.Janaki Ammal had bequeathed her individual properties in favour of the second defendant. She had not chosen to nominate
anybody or deal with the petition mentioned Trust property mentioned in the Will executed by her.
The plaintiffs have produced documents relating to the years 1966, 1982, 1983 and 1984 to establish that the plaintiffs have paid rent as
tenants to P.Janaki Ammal, the hereditary Trustee of Gnanamuthammal Trust for the occupation of the ground belonging to the Trust. If the petition
mentioned properties are not the Trust properties, P.Janaki Ammal would not have received rent in her capacity as hereditary Trustee of
Gnanamuthammal Trust. She would not have filed any petition seeking permission to sell away part of the properties of the Trust. The Town
Survey Register relating to the property in S.Nos.171 and 172, Sathankadu Village, Kaladipet would go to show that the petition mentioned
properties are in occupation of about 131 persons. The plaintiffs have also shown before the court that the second defendant has chosen to
alienate a part of the suit property to the father of the third and fourth defendants.
On a perusal of the documents produced on the side of defendants 2 to 4, it is found that the second defendant was granted patta by the
Tahsildar. It appears that the second defendant has also alienated a part of the suit property in favour of Muthumalairaja, the father of the third and
fourth defendants.
It is true that the learned District Munsif, Thiruvottiyur passed a judgment in O.S. No. 186 of 2001 accepting the plea of the second defendant
Rajamanickam that the suit properties are her individual properties and that the suit properties are not Trust properties. The learned Counsel
appearing for the third and fourth defendants would submit that the plaintiffs cannot be permitted to challenge again before this Court the title of the
second defendant which was recognised and confirmed by the competent civil court in O.S. No. 186 of 2001.
The Supreme Court in Sulochana Amma Vs. Narayanan Nair, and also in Aanaimuthu Thevar (Dead) by LRs. Vs. Alagammal and Others,
has categorically held that any finding as to the title of a property in question in a suit for bare injunction based on title would bind the parties in
subsequent suit. Even if no issue was framed, when the parties have gone to the trial having fully understood the nature of the suit and invited an
order as to the title to the property in a suit for bare injunction based on title, the finding rendered by the competent court will operate as res
judicata in a later suit based on title between the same parties.
It is true that the plaintiffs have referred in the present plaint, the case in O.S. No. 186 of 2001 filed by Bharathi Kudisai Vazhvor Sangam
against defendants 2 to 4 on the file of the District Munsif, Thiruvottiyur. But, there is nothing on record to show that these plaintiffs were members
of the said Sangam. Of course, the decision of the District Munsif as to the title to the subject property would operate as res judicata as against the
plaintiffs therein. But, the plaintiffs herein have filed the suit in their individual capacity praying to frame a scheme invoking the provision u/s 92 of
the Code of Civil Procedure. Further, it is found that the decision rendered in that suit is now subject to appeal. Therefore, the decision rendered
by the District Munsif in O.S. No. 186 of 2001 cannot operate as res judicata as against the plaintiffs herein, who were not parties to the said suit.
In view of the above, the aforesaid authorities do not apply to the facts and circumstances of this case.
The revenue proceedings or the patta standing in the name of an individual will not vest title with the person concerned. It has been established
prima facie before the court by the plaintiffs that the subject properties had been dealt by Janaki Ammal as property of Gnanamuthammal Trust.
The antique inscription found in the stone would clinchingly establish that the Trust in the name of Gnanamuthammal was created for performance
of religious rituals. The second defendant would simply contend that he inherited the subject properties from her ancestors. No document is
produced to show that this property originally vested with her ancestors individually and thereafter, she got this property by way of inheritance.
The learned Senior Counsel appearing for defendants 4 and 5 would submit that the second defendant is entitled to deal with the property even
during the pendency of the suit, of course, subject to the final outcome thereof. To support his view, he cited a decision in Sanjay Verma Vs.
Manik Roy and Others, . That was a case where a transferee of property covered under the pending suit for specific performance of agreement of
sale moved an application invoking the provision under Order 1 Rule 10 of the CPC seeking impleadment. The Supreme Court, referring to
Section 52 of the Transfer of Property Act which mandates that any right to immovable property, which is directly and specifically in issue, cannot
be transferred by any party to the suit so as to affect the rights of any other party thereto under the decree which may be made therein except, of
course, with the leave of the court, held that the mere pendency of the suit does not prevent one of the parties from dealing with the property
constituting the subject matter of the suit and that the section only postulates a condition that such alienation will in no manner affect the rights of the
other party under any decree which may be passed in the suit unless the property was alienated with the permission of the court. Ultimately, the
plea for impleadment made by the transferee of immovable property pendente lite in the said case was rejected by the Supreme Court.
The present case is one for framing a scheme. The plaintiffs have established before the court that the second defendant, without arming with
any documents of title, has started alienating the property. In fact, she has chosen to alienate a portion of the property to the father of second and
third defendants. If at all alienation is permitted during the pendency of the suit, it will lead to multiplicity of proceedings. Of course, the alienation
being done by the second respondent during the pendency of the suit will not affect the rights of the other party who obtained a decree but the
scheme of Section 52 of the Transfer of Property Act does not shackle the courts from granting an order of injunction restraining alienation or
disposal of the property in appropriate cases. In the above facts and circumstances, the court finds that the aforesaid ratio laid down by the
Supreme Court in an application seeking impleadment does not at all apply to the facts and circumstances of this case. If the court finds that the
alienation of the property during the pendency of the suit will create third party rights and will unfold the scope for multiplicity of proceedings, the
court is competent to pass an order restraining the party from alienating the property.
The plaintiffs have made out a prima facie case. The documents filed on the side of the plaintiffs would go to show that the suit properties are
the properties of the first defendant Trust. It has also been established that there is no one else to collect the rents from the Tenants numbering
more than 130 and administer the affairs of the Trust. The documents filed on the side of the second defendant do not establish even prima facie
that the second defendant has in fact inherited the property from her ancestors. If defendants 2 to 4 are not restrained from alienating the suit
properties, the properties of the Trust would be completely wasted. The balance of convenience is found only in favour of the plaintiffs. If the order
of injunction is not granted, much hardship will be caused to the first defendant Trust whose property is now being disposed of by the second
defendant as though it is his individual property. Inasmuch as the second defendant has set up a plea that there is no Trust as such in the name and
style of Gnanamuthammal Trust when actually, the antique documents and the other documents which came into existence at the instance of Janaki
Ammal would go to show that there has been a Trust in the name and style of the first defendant, an Advocate Receiver will have to be appointed
to effectively administer the Trust.
Though the plaintiffs have sought for injunction as against the second defendant alone from alienating the suit property, the court finds that if the
third and fourth defendants who are the transferees of the Trust property start alienating the same, it will lead to multiplicity of proceedings.
Therefore, there shall be an order of injunction not only as against the second defendant but also as against the third and fourth defendants from
alienating the suit properties pending disposal of the suit. Accordingly, O.A. No. 1201 of 2008 stands allowed and as a consequence, Application
No. 5967 of 2008 stands dismissed.
Thiru.Durai Kaliyarethnam, Advocate, ""NITHILAM"", 1/17, Chettiyaragaram Main Road, Thiruverkadu Post, Chennai 600 077 is appointed
as Advocate Receiver to take charge of the entire properties of the first defendant Trust, enumerate the tenants occupying the properties of the first
defendant Trust, collect rents, account for the same and administer the same efficiently pending disposal of the suit.
Considering the vast extent of property owned by the first defendant, the laborious task of collecting rent from more than 130 tenants, the
accounting procedure that will have to be adhered to by the Advocate Receiver for the effective administration of the first defendant Trust, a sum
of Rs. 15,000/= per month is fixed as remuneration for the Advocate Receiver. He shall draw the said amount from and out of the rental income or
other income derived from the property of the Trust. Consequently, Application No. 803 of 2008 stands allowed. There is no order as to costs.