Vaidyanatha Ayyar and another vs Swaminatha Ayyar and another

Sir John Edge, J.

These are consolidated appeals by defendants in a suit, No. 1 of 1916, from two decrees, dated the 13th November 1919, of the High Court at Madras, which affirmed with a trifling variation as to some property claimed, a preliminary decree, dated the 15th April 1918, and a final decree, dated the 30th September 1918, of the Subordinate Judge of Kumbakonam.

The suit relates to a chatram, also called a choultry, at Kumbakonam, and property alleged to be endowed property of the chatram. The chatram is now known as Kalyanarama Aiyar''s chatram. Formerly it was known as Rajappa Aiyar''s chatram. Two Brahmins were the plaintiffs. Since the suit was in appeal in the High Court one of the plaintiffs died; his legal representative is now on the record and is one of the respondents.

The plaintiffs on the 13th November 1916, brought this suit and claimed a declaration that the chatram was a public charitable institution having the properties mentioned in Schedule B of the plaint and seven-ninths of the properties mentioned in Schedule C to F as endowments; a declaration that the defendants are not lawfully appointed trustees and are not entitled to any right to the management and administration of the institution or in the properties belonging to it; that the defendants be removed from the office; that fit and proper persons be appointed trustees for the administration of the trust and that the chatram and the properties belonging to it be vested in them; that a scheme for the administration of the trust be settled; and other reliefs. The case of the plaintiffs was that the chatram was a public chatram, which had been founded and dedicated to the public more than 60 years before suit as a charitable institution for the convenience of travellers as a haltin place and for the feeding of poor Brahmins resorting to it. The plaintiffs had obtained under S. 92 of the Code of Civil Procedure, 1908, the consent in writing of the Advocate-General to their institution of the suit.

The defendants denied that the plaintiffs were persons who had an interest in the trust within the meaning of S. 92 of the Code of Civil Procedure, 1908. They alleged that the chatram was a private chatram, and they denied that it had ever been dedicated to the public, and that it had ever been endowed with any of the properties claimed as endowments; they pleaded that they had been duly appointed trustees, and other matters which are immaterial if they had not been duly appointed as trustees.

The learned Subordinate Judge who tried the suit recorded oral and documentary evidence, and he found that the plaintiffs having obtained the consent in writing of the Advocate-General were persons who were entitled to institute the suit; that the chatram had been dedicatad to the public and had been endowed as alleged in the plaint; that the defendants were not duly appointed trustees, and decided that a scheme for the management of the trust should be framed; and he framed a scheme for the management of the trust. The learned Judges of the High Court on appeal concurred with the findings of the Subordinate Judge except that they found that a small portion of the property claimed as endowment was not endowed property and with that variation as to the endowed property affirmed by their decrees the decrees of the Subordinate Judge, and dismissed the appeals to their Court. From those decrees of the High Court these consolidated appeals have been brought.

Mr. Upjohn, who appeared for the appellants, in his very able and exhaustive argument in support of these consolidated appeals, took and relied upon four points only. They were (1) that the plaintiffs were not persons who had an interest in the charitable trust within the meaning of S. 92 of the Code of Civil Procedure, 1908, and consequently had no locus standi to institute this suit; (2) that the chatram was not proved to be a public trust; (3) that the Courts below bad misconstrued the will of Swaminatha Aiyar of the 7th November, 1881; and (4) that the first defendant had been properly appointed a trustee and there was no ground for removing him from his office as trustee of the charity. Their Lordships will deal with these points in the order in which they were argued by Mr. Upjohn.

Mr. Upjohn''s first point was that assuming for the purpose only of his argument that the chatram had been dedicated to the public with a trust created for public purposes of a charitable nature, the suit would not lie if the plaintiffs had not within the meaning of S. 92 of the Code of Civil Procedure, 1908, an interest in the trust. That is a perfectly sound argument. The consent in writing of the Advocate-General to the institution of the suit by the plaintiffs would not bring the suit within the meaning of S. 92 of the Code of Civil Procedure, 1908, unless the plaintiffs had an interest in the trust. Mr. Upjohn contended that the plaintiffs had no interest in the trust within the meaning of S. 92. The question is had the plaintiffs an interest in the trust within the meaning of the section?

They were descendants in female lines of Rajappa Aiyar and his son Kalyanarama Aiyar, one of whom, probably the former, founded and dedicated to the public the chatram as a charitable institution, and are of the founder''s kin. The chatram was at first known as Rajappa Aiyar''s chatram and was subsequently known as Kalyanarama Aiyar''s chatram.

On the 22nd August 1864 the five sons of Kalyanarama Aiyar executed a partition deed in which the chatram and the lands then belonging to it, from which the income of the chatram was deilved, were mentioned. The lands belonging to the chatram were excepted from the partition, but it was agreed that the five brothers should manage the chatram lands according to the order of seniority. It is obvious that the chatram must have been endowed with these lands before the date of that deed of partition. Mr Upjohn contended that "an interest in the trust" to be within S. 92 of the Code of Civil Procedure, 1908, must be of some special interest and not merely a sentimental interest, and he referred to the dictum of Lord Eldon, L. C., In In Re the Master Governors and Trustees of the Bedford Charity 1819 2 Swanston''a Chan. Reports, 518 in which in a reference to Sir Samuel Romilly''s Act (52 Geo. 3, c. 101), which authorised persons other than the Law Officers to present petitions to the Court in certain matters of public charities, Lord Eldon said :

"The Act, indeed, authorises any two or mere persons to present a petition; but I conceive that those words must be understood to mean persons having an interest." which earlier at page 518 Lord Eldon interpreted as meaning "a direct interest in the charity."

Mr. Upjohn also referred to the observations of Lord Eldon, L. C , in The Corporation of Ludlow, etc. v. Greenhouse 1827 1 Bligh''s Reports, ns. 17. It may be that the dictum of Lord Eldon in the Bedford Charity Case 1819 2 Swanston''a Chan. Reports, 518 caused those who were responsible for the drafting of S. 539 of the Code of Civil Procedure of 1877 (Act X of 1877) to draft that section as giving a right in cases of a breach of trust created for public charitable purposes to "two or more persons having a direct interest in the trust," and who had obtained the consent of the Advocate-General, to institute a suit under that section. It must, however, have subsequently appeared to the Governor-General of India in Council that the limitation of a "direct" interest was not expedient in India, and it was enacted by S. 44 of the Civil Procedure (Amendment) Act, 1888, which amended the procedure then in force, "That in S. 539, for the words having a direct interest" the words ''having an interest'' shall be substituted."

It may be that Coutts Trotter, J., was correct in stating, in Ramachandsra Aiyar v. Parameswaran Unni 1918 42 Mad. 360 - 36 M.L. J. 396 - 35 M. L. T. 304 - 50 I. C. 693 - 9 L. W. 492 - (1919) M.W.N. 370 that it was in consequence of the decision in Jan Ali v. Ram Nath Mundal 1882 8 Cal. 32 - 9 C.L.R. 433 that the change in the law was made by omitting the word " direct." In that case the High Court at Calcutta had held that the plaintiffs two Muhammadans who lived in a village and workshipped regularly at the village mosque, had no direct interest in the mosque. Their Lordships would have considered that Muhammadans who worshipped regularly in the mosque of the village had a direct interest in the trust relating to the mosque. But so that they may not be misunderstood as to the meaning of ''interest'' in S. 92 of the Code of Civil Procedure, 1908, they think it advisable to say that public "Hindu Temples are prima facie to be taken." as Sir John Wallis, C. ., said in Ramchandra Aiyar v. Parameswaran Unni 1918 42 Mad. 360 - 36 M.L. J. 396 - 35 M. L. T. 304 - 50 I. C. 693 - 9 L. W. 492 - (1919) M.W.N. 370 '''' to be dedicated for the use of all Hindus resorting to them." They agree with Sir John Wallis that the bare possibility, however remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust appears to defeat the object with which the legislature inserted these words in the section. '''' That object was to prevent people interfering by virtue of the section (S. 92) in the administration of charitable trusts, merely in the interests of others and without any real interest of their own." In the present case their Lordships are of opinion that the fact that the plaintiffs are descendants although only in female lines of the founder of the chatram gave them an interest in the proper administration of the trust sufficient to enable them to maintain this suit although they themselves may never find it necessary to use the chatram as a rest house or to obtain food there.

As to the second point argued by Mr. Upjohn it is sufficient to say that there are concurrent findings that the chatram was a public trust, and their Lordships may add they also find that the chatram is a public trust.

As to third point argued by Mr. Upjohn, that the Courts below misconstrued the will of Swaminatha Aiyar of the 7th November, 1881, that contention if well founded would show that the gift of some of the property to the chatram, which each Court has found to belong to the chatram, was a void gift within the decision of the Board in Runchordas Vandrawandas v. Parbatibai 1899 23 Bom. 725 - 26 I. A. 71 - 1 Bom. L. K. 607 - 3 C.W.N. 621 - 7 Sar. 543 (P. C.). The testator was one of the five sons of Kalyanarama Aiyar. It is not necessary to set out the translation of the whole of his will; the contention turns on the meaning of part of the will.

After referring to the partition of 22nd August, 1894, between him and his brothers and some other matters, the testator''s will is translated continues, so far as is material, as follows :-

"The arrangement which I make regarding the aforesaid properties is this :- After my decease my properties and my estate shall be managed with all rights by my divided brothers, K. Venkatranga Aiyar and K. Suryanarayana Aiyar as executers. The incomes from the villages and gardens shall be divided into three portions and two portions thereof shall be given to my wife, and the said house and the Ethiradi manai (mamai in front of it) be given to her for her occupation; and with the remaining one portion, the debts due by me and the debts contracted by me and K. Veakataranga Aiyar on the security of our family properties shall be discharged. After the said two kinds of debts are discharged, the said executors shall with the said one third portion of the said income nuke annadhanam (feed poor people) in our family choultry in Perumbandi new under the management of K. Venkataranga Aiyar. My wife shall take all the aforesaid moveable properties and enjoy them according to her pleasure, and if she dies leaving any moveable properties, they shall he used by the said executors themselves for the said feeding charity. After my wife''s decease, two out of three periods of the income enjoyed by her shall be utilised for the charity and the remaining one out of the three shares, and the dwelling-house and marni in frout, shall be taken by K. Venkataranga Aiyar and K. Suryanarayana Aiyar and their posserity. The other dayadis have no right whatever.

Their Lordships assume the words "the charity" in the translation are the correct rendering of the vernacular which they are informed is in Tamil. If those words are the the correct rendering of the vernacular they plainly refer to the chatram charity which had immediately before been indicated and the gift was not void for uncertainty. The original will was before the learned Subordinate Judge who tried the suit and who understood Tamil. This is what he said as to that part of the will :-

"14. It is next contended that this gift of a 2/3rd share in the 2/3rd share to a Dharman was invalid, and the decision in Parthasara hi Pillai v. Thiruve gada Pillai 1907 80 Mad. 340 - 17 M. L. J. 379 - 2 M. L. T. 198 was relied upon. A perusal of Swaminatha Aiyar''s will indicates to my mind that the Dharmam he intended to create in respect of the 2/3rd share in the 2/3rd share was the Dharmam to which he gave a 1/3rd share in the income : and that the gift of 2/3rd share of a 2/3rd share is not void for uncertainty.

"15. It was lastly contended that it was not open to this Court to construe the terms of Swaminatha Aiyar''s will, in so far as they relate to the charity : but it appears to me that it is open to this Court to see what interest the charity has in Swaminatha Aiyar''s properties. I therefore find that the chatram has a 7/9th share in the income from the C to F Schedule properties under Swaminatha Aiyar''s will"

This is what the learned Judges of the High Court said on that subject :

"As regards 2/3rd of the income of the properties given to the wife which the will directs to be utilised for Dharmam on her death, it is argued that the references is not to this choultry but to charity generally. The learned Subordinate Judge has held that the word ''Dharmam'' refers to this choultry and we think he is right in that construction. In that view of the will the choultry becomes entitled under Exhibit C to 7/9ths of the income of the properties."

Their Lordships hold that the will was not misunderstood by either of the Courts.

As to the fourth and last point argued by Mr. Upjohn that the first defendant, Vaidyanatha Aiyar, had been properly appointed a trustee of the chatram and ought not to have been removed, it is necessary to see what the appointment in fact was. His appointment was made by the 10th and 11th paragraphs of the will of Suri Aiyar, probate of which was granted on the 17th July 1915. Suri Aiyar was the last survivor of the five brothers who were the sons of Kalyanarama Aiyar. The 10th and the 11th paragraphs of the will, as translated, were as follows :-

"10. The choultry mentioned in paragraph 3 aforesaidoand the entire properties attached thereto shall be in the management of the aforementioned R. Vaityanatha Aiyar. The Brahmin feeding and the Dwalas Kaitalai of the said choultry shall be conducted on a scale not inferior to what is being conducted now.

"11. After the abovementioned Vaidyanatha Aiyar, his younger brother the said R. Narayanaswami Aiyar and after him, my friend Jayakrishnachariar residing in Melakkaveri Achari Agraharam shall look after the management of said choultry and of the entire properties attached thereso."

Turning to the 3rd paragraph of the will it will he seen what were the properties for the management of which Vaidyanatha Aiyar was appointed. That 3rd paragraph is, as translated, as follows :-

"3. Besides the abovesaid properties there are i? Kumbakonam Town to the northern side of the Cauver, my family choultry, the buildings attached thereto, lands, grounds bandy pettai, etc., properties. These belong to me and are in my possession and enjoyment."

Suri Aiyar was appointing Vaidyanatha Aiyar manager of properties which he falsely alleged belonged to himself as proprietor, and was not appointing him as a trustee of properties which were already trust properties. Suri Aiyar as the last survivor of the descendants in the male line of the founder of the chatram possibly had a right to appoint a trustee of the charity. See Boidya Gauranga Sahu v. Sudevi Mata 1916 40 Mad 613 - 32 M. L. J. 597 - I. C. 589 - (1917) M. W. N. 429.

But that was not what he was professing to do. He was professing to appoint a manager of property which be falsely alleged to be his own private property, and in the opinion of the Subordinate Judge his object was to afford a monthly income for the daughter of his late concubine and her children.

After Mr. Upjohn had concluded his arguments in support of the appeals his junior counsel addressed the Board on a subject which Mr. Upjohn had not referred to and contended that some small portions of the properties did not belong to the trust, but they had been concurrently dealt with in the decrees of the trial Judge and the High Court as the properties of the charitable trust, and the attention of their Lordships was not directed to any evidence sufficient to justify the contention.

Their Lordships will humbly advise His Majesty that these consolidated appeals should be dismissed with costs.