IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on:14.02.2017 Pronounced on:03.03.2017 Coram
The Hon'ble Dr.Justice G.Jayachandran
Second Appeal Nos.589 of 2011 and 855 to 858 of 2011 and
M.P.Nos.1 of 2011, 1 of 2011, 1 of 2012
and 2 of 2012, 1 and 1 of 2011 and 2 and 2 of 2012 S.A.No.589 of 2011
1.V.G.Bhoopathi(deceased) 2.V.G.Ramasamy(deceased) 3.V.B.Sathyanarayanan (Appellant 3 and RR6 to 8 brought on record as LRs of the deceased 1st appellant's vide order of Court dated 25.08.14 made in M.P.No.1 of 13 and 1 of 13 in S.A.No.857 of 2011 and S.A.No.589 of 2011) 4.R.Sarasakumari 5.V.R.Hari Balaji (Appellants 4 and 5 brought on record as LRS of the deceased 2nd appellant vide Order of Court dated 11.07.2016 made in C.M.P.No.10892 of 2016 in S.A.No.
589 of 2011) .. Appellants /versus/
1. M/s Adhi Lakshmi Ammal Dharma Chathiram, Thirukkalikundram Rep.by its Present Trustees (i)P.Srinivasan, S/o Parthasarathy (ii)P.Saraswathi, W/o Chandrasekar (iii)P.Syamaladharan, S/o R.Parthasarathy (iv)P.Vijayalakshmi, W/o V.Jagannathan
2. P.Sekar
3. S.Devi
4. M.Mangalam
5. Uma Maheswari
6. S.Vatchala
7. J.Uma Maheswari
8. A.Maheswari
9. S.Sarath Babu 10.S.Praveen (RR9 and 10 brought on record as LRS of the deceased R5 vide Order of Court dated 29.01.2015 made in M.P.No.1/15 in S.A.No.589/2011) .. Respondents S.A.No.855 of 2011 Mrs.Devi .. Appellant /versus/ Arivudai Nambi .. Respondent S.A.No.856 of 2011 Mrs.Mangalam .. Appellant /versus/ Arivudai Nambi .. Respondent S.A.No.857 of 2011
1. K.Sekar
2. Mrs.S.Devi
3. Mrs.M.Mangalam
4. Mrs.Uma Maheswari(deceased)
5. S.Sarath Babu
6. S.Praveen (Appellants 5 and 6 brought on record as LRS of the deceased appellant No.4 vide Order of Court dated 3.11.2016 in M.P.No.1 of 2015 in S.A.No.857 of 2011) .. Appellants /versus/
1. M/s Adhilakshmi Ammal Dharma Chathiram Thirukalukundram Rep.by its present trustees 1.P.Srinivasan, S/o Parthasarathy 2.P.Saraswathi, W/o Chandrasekar 3.P.Syamaladharan, S/o R.Parethasarathy 4.P.Viajyalakshmi, W/o V.Jagannathan 2.V.G.Boopathy(deceased) 3.V.G.Ramasamy(deceased) 4.V.B.Sathyanarayanan 5.S.Vatchala 6.J.Uma Maheswari
7. A.Maheswari (RR4 to 7 brought on record as LRS of the deceased R2 vide Order of Court dated 25.8.2014 made in M.P.No.1/13 in S.A.No. 589/11 and M.P.No.1/13 in S.A.No.857 of 2011)
8. Saraswathi Ramasamy
9. V.RHari Balaji (RR8 and 9 brought on record as LRS of the deceased R3 vide order of Court dated 03.11.2016 made in C.M.P.No.12017/16 in S.A.No.857 of 2011) .. Respondents S.A.No.858 of 2011
1. Mrs.Uma Maheswari(deceased)
2. K.Sekar
3. S.Sarath Babu
4. Praveen (Appellants 2 to 4 brought on record as LRS of the deceased appellant No.1 vide order of Court dated 03.11.2016 made in M.P.No.1 of 2015 in S.A.No.858 of 2011) .. Appellants /versus/ Arivudai Nambi .. Respondent Prayer in S.A.No.589 of 2011: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 29.10.2010 passed in A.S.No.19 of 2009 on the file of the Principal District Court, Chengalpattu confirming the judgment and decree dated 28.11.2008 passed in O.S.No.81 of 2004 on the file of the Principal Sub Court, Chengalpattu.
Prayer in S.A.No.855 of 2011: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment granted in O.S.No.84 of 2004 on the file of the Principal Sub Judge, Chengalpattu, dated 28.11.2008 being confirmed in the appeal Suit No.28 of 2010 on the file of the Principal District Judge of Chengalpattu dated 29.10.2010.
Prayer in S.A.No.856 of 2011: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree granted in O.S.No.83 of 2004 on the file of the Principal Sub Judge, Chengelpattu dated 28.11.2008 being confirmed in the appeal suit No.29 of 2010 on the file of the Principal District Judge of Chengalpattu, dated 29.10.2010.
Prayer in S.A.No.857 of 2011: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree granted in O.S.No.81 of 2004 on the file of the Principal Sub Judge, Chengelpattu dated 28.11.2008 being confirmed in the appeal suit No.35 of 2010 on the file of the Principal District Judge of Chengalpattu, dated 29.10.2010.
Prayer in S.A.No.858 of 2011: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree granted in O.S.No.85 of 2004 on the file of the Principal Sub Judge, Chengalpattu dated 28.11.2008 being confirmed in the appeal suit No.53 of 2010 on the file of the Principal District Judge of Chengalpattu dated 29.10.2010.
For Appellants :Mr.N.C.Ashok Kumar for Mr.T.V.Krishnamachari in (S.A.No.589 of 2011 and R9 in S.A.No.857 of 2011) Mr.V.Manohar in (S.A.Nos.855 to 858 of 2011) For Respondents :Mr.R.Subramanian for Mr.T.R.Rajaraman for R1 in S.A.Nos.589 of 2011, 855, 856 to 858 of 2011 Mr.V.Manohar for R2 to R4 in S.A.No.589 of 2011 R5-died. R7-No appearance Not Ready in Notice for R6,8,10 in S.A.No.589 of 2011 R2 and R3 died Not ready in Notice R4 to R8 in S.A.No.857 of 2011 C O M M O N J U D G M E N T One Adhilakshmi ammal, W/o Rathina Mudaliar, during her life time, established a free Choultry at Thirukazhukundram Village by name “Adilakshmi Ammal Dharma Chathiram” and provided free accomodation for the needy since 1890. During her life time, she has spent about Rs.10,000/- to renovate it and also deposited Rs.1,500/- in M/s Arbouthnot and Co, Madras. She executed a Trust deed and got it registered on 02.10.1900. As per the Trust Deed, out of the interest accrued from the fixed deposit, the Trustees were supposed to maintain the Choultry, keep it illuminated with lamps (Deepam), provide shelter and serve water to the pilgrims. Adilakshmi Ammal appointed her foster son Devaraja Mudaliar as first Trustee. After the demise of Devaraja Mudaliar, his descendants (santhathis) should be the trustees, without right of alienation. The said Choultry is the subject matter of the appeals.
2. After the execution of the trust deed in the year 1900, Adilakshmi ammal died in the year 1905. The first Trustee Devaraja Mudaliar executed a Will on 26.09.1936 wherein he after referring the Trust Deed of his mother Adilakshmi ammal dated 01.10. 1900 and her demise during the month of September 1905, records that the fixed deposit of Rs.1,500/- in the M/s Arbouthnot and Co. earmarked for the Trust was utilised by Adilakshmi ammal during her life time and no corpus was left on the date of her death. However, he with his earning carrying on the maintenance of the Choultry. After his demise, to maintain the Choultry he appointed his son-in-law Gajaraja Mudaliar, as Executor of the Will and permitted him to let out a portion of the Choultry to derive income and carry on the charity and maintain the Choultry.
3. Further, the rectial of Devaraja Mudaliar Will says that under the Trust deed of Adilakshmi ammal, the trust has to be managed by him and after his demise, it should be managed by his decendents. Since his wife Padmavathiammal is mentally ill and her son Srinivasan is minor, the Executor Gajaraja Mudaliar shall be the Trustee and on attaining majority, his son Srinivasan will take over the admistration of the trust and after his life time, his descendants shall be the trustees.
4. Accordingly, Gajaraja Mudaliar was administering the suit property till his life time. Padmavathi ammal pre-deceased her husband leaving behind her son Srinivasan and daughter Kamalabai ammal. His son Srinivasan gone missing and not heard. His daughter Kamalabai ammal died on 05.01.2004 leaving behind her two sons and two daughters.
5. Gajaraja Mudliar had a junior wife by name Dhanalakshmi ammal and through her, he had two sons and three daughters. The dispute is between the children of his first wife daughter's and his sons born through the second wife.
6. The brief facts of O.S.No.81 of 2004 are as follows:
The plaintiffs in O.S.No.81/2004, who are the children of Kamalabai ammal, claiming themselves as descendants (santhathis) of Devaraja Mudaliar through their mother, have laid the suit claiming themselves as the Trustees of Adilakshmi ammal Dharma Chathiram alleging that the defendants 1 and 2, who are the sons of Gajaraja Mudaliar born through his second wife are not the santhathis of Devaraja Mudaliar. Taking advantage of the absence of the plaintiffs in the suit Village, they have alientated the properties to the other defendants. According to them, the Will of Devaraja Mudaliar executed in the year 1936 obliterating the Trust deed of his mother Adilakshmi ammal is not valid and under the deed of Adilakshmi ammal, who has created the trust, the plaintiffs alone are the santhathis of Devaraja Mudaliar being his daughter Padmavathi's daughter Kamalabai ammal's children. The defendants are Devaraja Mudaliar son-in-law Gajaraja Mudaliar's second wife sons.
7. Hence, the suit under Section 92 of the Civil Procedure Code is filed for the following relief:
(1) To deliver vacant possession of B and C schedule properties;
(2) for grant of permanent injunction restraining the defendants 4 to 6 from in any way putting up construction in respect of EBCHGFE portion in C schedule property,
(3) for future damages for use and occupation at Rs.1000/- per month in respect of B schedule property from this date, till the date of delivery of possession;
(4) for costs of this suit.
8. The defendants 1 and 2 contented that, the suit filed by G.Rajan Mudaliar as power agent of the plaintiffs is not maintainable. The plaintiffs are not entitled for the relief sought. Devaraja Mudaliar is the adopted son of Rathina Mudaliar and Adilakshmi ammal. In the trust deed of Adilakshmi ammal appointed her son Devaraja Mudaliar as Trustee. Devaraja Mudaliar in his Will dated 26.09.1936 explained about the earlier Will of his mother and the purpose and reason for appointing Gajaraja Mudaliar as the Executor of the Will. The Trust mentioned in Ex.A-2 never come into existence. No provision was made to conduct the trust. Supressing the Will of Devaraja Mudaliar, the suit is filed as if Adilakshmi Ammal Dharma Chathiram is in existence. In fact, after the demise of Devaraja Mudaliar in the year 1946, the property was administered by Gajaraja Mudaliar till his death in the year 1978. Thereafter, his second wife Dhanalakshmi ammal and the defendants 1 and 2, who are the sons born to Dhanalakshmi ammal and Gajaraja Mudaliar are administering the property. Srinivasan son of Gajaraja Mudaliar, born through his first wife Patmavathi ammal renounced the world and went missing. He was presumed to be dead, since not heard for more than 30 years. His daughter Kamalabai ammal, till her death in the year 2004, never claimed right over the property. Therefore, the plaintiffs cannot claim right over the property tracing through their mother Kamalabai ammal.
9. After the demise of Gajaraja Mudaliar, the defendants 1 and 2, who are his sons born through his second wife, are managing the porperty. In the year 1981, they sold a portion of the property to the third defendant to carry out renovation of the Choultry. The plaintiffs and their mother were silient for 24 years. Till the defendants 1 and 2 clearing the debts incurred for maintaining the Choultry and carrying out the repair works. The suit filed as against the recovery of 'B' schedule property purchased by them, is barred by limitation. The defendants 3 to 6 have filed their written statement claiming that they are bonafide purchasers for value.
10. Based on the pleadings, the trial Court has framed the following issues:
“(1)Whether the plaintiffs are trustees of 'Adilakshmi ammal Dharma Chathiram' and whether they are entitled to get recovery of possession of suit 'B' and 'C' schedule properties?
(2) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for?
(3) Whether the suit is barred by limitation?
(4) To what reliefs is the plaintiff entitled to?”
follows:-
11. The brief facts of the suits in O.S.Nos.83 to 85 of 2004 are The defendants 4 to 6 in the above suit O.S.No.81 of 2004, individually filed suits in O.S.Nos.83 to 85 of 2004 against one Arivudai Nambi seeking injunction against him on the ground that, they are bona fide purchasers for value from V.G.Bhupathy and V.G.Ramasamy (Defendants 1 and 2 in O.S.No.81/2004) whereas the defendant herein, who is an alien to the suit property, is trying to disturb their peaceful enjoyment.
12. The defendant in his written statement, tracing the title of the property from Adilakshmi ammal and her trust deed dated 02.10.1900 contented that the property belongs to public trust. Under Ex.A-2, Adilakshmi ammal appointed Devaraja Mudaliar as Trustee and after his life, his santhathis to be the trustees. The vendors of the plaintiffs are not the santhathis of Devaraja Mudaliar. His daughter Padmavathiammal and the children born to her alone are the santhathis. The plaintiffs and the vendors of the plaintiffs had created sham and nominal documents and claiming title through that document. This defendant, based on the general power of attorney, is acting to protect the interest of Adilakshmi Ammal Trust. There is no cause of action for the plaintiff to file the suit against the defendant in his individual capacity.
13. The trial Court framed the following similar issues in all the above three suits in O.S.Nos. 83 to 85 of 2004:-
“1.Whether the plaintiff is entitled for permanent injunction as prayed for?
2.To what relief is the plaintiff entitled to?”
14. Before the trial Court all the four cases were taken up for joint trial. One Mr.G.Rajan Mudaliar, Power Agent of the plaintiffs in O.S.No.81/2004 was examined as PW-1. The plaint plan, The trust deed of Adilakshmi Ammal, sale deeds in favour of the defendants 4 to 6 were marked as Exs.A-1 to A-5 respectively. The 1st and 3rd defendants were examined as DW-1 and DW-2. 38 documents were marked on the side of the defendants and Exhibited as Exs.B-1 to B38. The Advocate Commissioner Report and Plan were marked as Exs.C-1 and C-2.
15. The trial Court, after appreciating the evidences relied by the respective parties, held that the defendants 1 and 2 are not the trustees. They sold the suit property as if they have inherited the property from their father Gajaraja Mudaliar. So, the sale deeds Exs.B- 27,35 to 37 are not valid in law. The defendants 3 to 6 are not the bonafide purchasers. They are not entitled for injunction. They have purchased the property from unauthorised persons. They have no valid title to the suit properties. The person claiming possessory title as against the true owner or against the person having better title is not entitled for injunction. Hence, allowed the suit in O.S.No.81 of 2004 granting decree for recovery of possession and other incidental reliefs and dismissed the suits in O.S.Nos.83 to 85 of 2004 filed for injunction.
16. Aggrieved by the decree of the trial court in O.S.No.81 of 2004, the defendants preferred an appeal in A.S.No.19 of 2009 and and A.S.No.35 of 2010. As against the dismissal of the injunction suits filed against the defendant Arivudainambi, Tmt.Devi, the plaintiff in O.S.No.84/2004 filed A.S.No. 28/2010; Tmt.Mangalam the plaintiff in O.S.No.83/2004 filed A.S. No.29/2010; Tmt.UmaMaeheswari the plaintiff in O.S.No.85/2004 filed A.S.No.53/2010.
17. The lower appellate Court in its common judgment confirmed the trial Court judgment and dismissed all the five appeals. Aggrieved by the dismissal of their appeals, confirming the decree passed in O.S.No.81/2004, the defendants 1 to 2 had preferred S.A.No.589/2011 and the defendants 3 to 6 had preferred S.A.No.857/2011. The unsuccessful plaintiffs in O.S.Nos.83 to 85 of 2004 had preferred S.A.Nos.855, 856 and 858 /2011.
18. At the time of admission, this Court in S.A.No.589 of 2011 has formulated the following Substantial Questions of Law for consideration:
(1) Whether the suit is maintainable under Section 92 of Code of Civil Procedure against the defendants namely, V.G.Bhoopathi and V.G.Ramaswamy, D1 and D2, children of Dhanalakshmi Ammal and Gajaraja Mudaliar, claiming to be the Trustees, under a registered Will, dated 26.09.1936, marked as Ex.B2, without the proof of existence of alleged Trust?
(2) When the defendants 1 and 2, who are the appellants herein, in their written statement pleaded that Devaraja Mudaliar had executed his last Will and Testament, dated 26.09.1936, appointing his son-in-law Gajarajaa Mudaliar, to be a Trustee to manage and carry out the family Trust, without challenging the correctness and validity of the Will, whether the plaintiff can maintain the suit on the basis of earlier Trust Deed, dated 02.10.1900?”
19. S.A.Nos.855 to 858 of 2011 filed subsequent to S.A.No.589/2011 were tagged along with S.A.589/2011. Since all the appeals arise out of common judgment passed by the Courts below, no separate Substantial Question of Law was formulated in the subsequent three appeals.
20. The Learned counsel for the appellants submitted that, admittedly, the property originally belonged to one Adhilakshmi Ammal who has executed a trust deed dated 02.10.1900 which has been marked as exhibit A-2 and created a trust to administer the named after her Choultry. She died on 19.09.1905. After her demise, as per her Trust deed, her adopted son V.Devaraja Mudaliar was in management of the Choultry. The said Devaraja Mudaliar had a daughter by name Padmavathy Ammal, who was married to Gajaraja Mudaliar. Padmavathy Ammal predeceased her father Devaraja Mudaliar. During the life time, Devaraja Mudaliar executed a Will dated 26.09.1936 marked as Ex.B2 in which he has dealt with his properties including the Choultry left by Adhilakshmi Ammal. The plaintiffs in O.S.No.81 of 2004 has filed the suit completely suppressing the document dated 26.09.1936 Ex.B2.
21. The learned counsel appearing for the appellants further submitted that none of the alleged trustees entered into the witness box and one G.Rajan was examined as PW1 said to be the power of attorney agent of the trustees. The said G.Rajan is none other than the father of one Arivudainambi, who earlier filed O.S.No.97 of 2003 before the Principal Subordinate Court, Chengalpattu in respect of very same property and the said suit has been dismissed as not pressed. The plaintiffs being the children of Kamalabai Ammal claim themselves as Trustees of Adhilakshmi ammal Dharma Chathiram, though during her life time their mother Kamalabai Ammal never claimed the right of trusteeship. The Will executed by Devaraja Mudaliar in favour of Gajaraja Mudaliar on 26.09.1936 was accepted and acted upon. In pursuance of the Will, Gajaraja Mudaliar has managed the Choultry and after his demise, the appellants herein are dealing with the suit property as their absolute property. It is also submitted that in the Will executed by Devaraja Mudaliar, it is recorded that Adhilakshmi ammal during her life time has spent the corpus deposited for the maintenance of the Choultry before she died in the year 1905. Adhilakshmi ammal has not left any fund for maintaining the Choultry. Hence, he rented out a portion of the Choultry for the purpose of paying tax and to meet out the expenses for maintenance of the Choultry. The children of Kamalabai ammal, who have filed the suit in O.S.No.81 of 2004 under Section 92 CPC, claiming that they are the trustees and they are entitled to manage the Choultry. A specific issue has been framed in O.S.No.81 of 2004 whether the plaintiffs are trustees of Adhilakshmi Ammal Dharma Chathiram and whether they are entitled to get recovery of possession of the suit property. The rival disputes between the trustees cannot be the subject matter of the suit filed under Section 92 CPC. Section 92 CPC is not meant for vindicating personal rights. The suit regarding asserting the personal right in respect of the office namely trusteeship does not fall within the scope of Section 92 CPC.
22. The prime attack on the judgment of the Courts below was on the maintainablity of suit under Section 92 of the Civil Procedure Code and failure of the plaintiffs to enter into the witness box to depose about the facts of their case as averred in the plaint. That apart the locus of PW-1 to carry the brief of the trust also questioned.
23. The suit in O.S.No.81 of 2004 is filed under Section 92 of the Civil Procedure Code. The court fees is paid under Section 47 of the Tamil Nadu Court Fees and Suit Valuation Act. The relief sought in this suit is extracted verbatim to understand, Whether the relief sought in the suit is maintainable under Section 92 of the Civil Procedure Code, which is filed under representative capacity and exclusive for the reliefs listed in that Section.
“(1)to deliver vacant possession of B and C scheudle properties;
(2) for grant of permanent injunction restraining the defendants 4 to 6 from in any way putting up construction in respect of EBCHGFE portion in C schedule property;
(3) for future damages for use and occupation at Rs.1000/-
per month in respect of the B schedule property from this date, till the date of delivery of possession;
(4) for costs of the suit.”
24. Section 92 of the Civil Procedure Code is also extracted hereunder:
“92. Public charities: (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree?
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has bee removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquires;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863) or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-section.
(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy press in one or more the following circumstances, namely:
(a) where the original purposes of the trust, in whole or in part?
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust;
(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or
(d). ....
(e). ....
(f). .....
(g). .....
(h). ......
25. The precedent of the Courts both the Hon'ble Supreme Court and the High Courts in respect of suits under Section 92 of the Civil Procedure Code is worth to refer at this juncture to ascertain whether the present suit filed under Section 92 of the Civil Procedure Code is maintainable.
26. In judgment of the Full Bench of this Court reported in Tirumalai Tirupati Devasthanams Committee v. Udiavar Krishnayya Shanbhaga and others[AIR (30)1943 Madras 466, the relevant portion reads as under:
“... We find ourselves in full agreement with the opinion of Varadachariar J.that in deciding whether a suit falls within S.92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought. The judgment of the Privy Council in 55 Cal. 519 lends no support for the opinion expressed by the full Bench in 53 Mad.988.”
27. In the judgment of the Hon'ble Surpeme Court reported in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai and others [AIR 1952 Supreme Court 143], wherein the relevant portion reads as under:
“... In a suit framed under Section 92 Civil P.C., the only reliefs which the plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the Section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of S.92, Civil P.C. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.”
28. One of the contentions of the appellants is that, the suit was filed with malafide intention to settle private dispute and nothing public interest or trust interest is involved. For which the earlier suit filed by Ariuvdainambi, who is the son of the power agent to the plaintiffs herein for the very same cause and the interference of him forcing the subsequent purchasers to file suit for injunction were pointed out by the learned counsel for the appellants. To butress this submission, the conspicuous and conscious abstainism of the plaintiffs from subjecting themselves for examination is pointed. Further, when the plaintiffs claim themselves as the only santhathis of Adhilakshmi ammal, they have not come forward to depose, how they alone are santhathis and how the defendants 1 and 2 are not her santhathis. Instead, the Power Agent who admittedly had no personal knowledge about the family history of Adhilakshmi ammal had been examined as sole plaintiff's side witness. Having proved through Ex.B-1 and Ex.B-38 that PW-1 and his son, who are the interlopers, are trying to meddle with the suit property to settle their private feud, the Courts below ought not to have entertained the suit in O.S.No.81 of 2004 filed through his proxies suppressing the Will executed by Devaraja Mudaliar in the year 1936.
29. In support of the above submission, the learned counsel rely upon the judgment of the Hon'ble Supreme Court reported in Swami Paramatmanand Saraswati and another v. Ramji Tripathi and another [1974 (2) SCC 695], wherein para 11 reads thus:
“11. We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a Trust bring a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the Trust, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the Section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decided whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.”
30. Vidyodaya Trust v. Mohan Prasad R and others [(2008) 4 SCC 115], wherein para 10 reads as under:
“10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the Section would fail; and even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the rights of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92...”
31. Per contra, the learned counsel for the respondents submitted that, admittedly the suit property was earmarked for charity purpose by Athilakshmi ammal under the Trust Deed. The line of trusteeship is well defined in the trust deed Ex.A-2. The right to alienate the property is also explicitly prohibited under Ex A-2. It is also proved through Ex.A-3 to A-5 and Ex.B-27 that the trust property was sold away by the defendants 1 and 2 under false pretext, as if it is their absolute property devolved through testamentary succession. The defendants 3 to 6 have purchased the property with knowledge about the trust deed executed by Adilakshmi ammal in the year 1900. Therefore, they are all not bonafide purchasers. Even if the suit filed under Section 92 CPC is not maintainable, the Court cannot turn a nelson eye when the fact that the suit property dedicated to a trust being sold away by unscrupulous persons to third parties in collusion.
32. Before adverting to the rival contentions put forth by the counsels, the content of the trust deed Ex.A-2 and the Will Ex.B-2 is essentially to be read together, compared and analysised, in view of the events happened during the period between these documents.
33. Under the trust deed Ex.A-2, Adhilakshmi ammal has stated that she is carrying on charity in the Adhilakshmi Ammal Dharma Chathiram for nearly 10 years and has spent Rs.10,000/- for renovating the Dharma Chathiram and continue to do the charitable work that she has invested Rs.1,500/- on 28.09.1900 in M/s Arbuthnot and Co., Madras. The purpose of trust is also mentioned in the trust deed. They are (i) to keep the Choultry repair and maintain it. (ii) to appoint employees to maintain the Choultry. (iii)to iliminate the Choultry with oil lamps and (iv) to appoint a Bhramin to over see the work and to serve the inmates of the Choultry. She has restricted the trustees from foreclosing the deposit in M/s Arbuthnot and Co., as well as alienation of the Chathiram and land.
34. Thus, it is clear from Ex.A2 that Choultry was already in existence. To maintain the Choultry as well as to carry out the charitable work, the author of the trust namely, Adhilakshmi ammal has deposited Rs.1,500/- in M/s Arbuthnot and Co. The Will Ex.B2 dated 26.09.1936 executed by Devaraja Mudaliar refers about the trust deed. He has stated in his Will that the corpus of Rs.1,500/- deposited by Adhilakshmi ammal was withdrawn by Adhilakshmi ammal herself and utilised for expansion of Choultry activity. Thus, according to this Will Ex.B2, it appears that there was no corpus or source of income to carry out the charitable work mentioned in the trust deed (Ex.A2), when the Will was written (26.09.1936).
35. This Court wish to take judicial notice of one event happened regarding M/s Arbuthnot and Co., in whcih the corpus was deposited by Adhilakshmi ammal. M/s Arbuthnot and Co., was a leading finance company in India during the 18' Century for about 100 years, but, later became bankrupt in the year 1906. The raise and fall of M/s Arbuthnot and Co., is vividly recorded by Thiru.S.Muthiah, in his Book “Madras Rediscovered (East West publisher)” at page Nos.391 and 392, the relevant passage is extracted hereunder:
“Arbuthnot's correspondent and associate in England, and an old Madras Arbuthnot hand, committed suicide on October 20, 1906, the crisis broke. Both firms petitioned the courts on the 22nd to be declared insolvent. The auditors appointed by the Official Assignee estimated Arbuthnot and Co's liabilities at Rs.27 million and its assets at only Rs.7 ½ million! The firm had 2,300 operating accounts in India with balances of Rs. 2.75 million and about 4,000 fixed deposits with claims amounting to over Rs 25 million. With the assets being described as being only on paper and “beyond all belief, worthless, which crumble to dust when touched”.
“Describing the scene at Arbuthnot's when it put up a notice announcing suspension of all payments, The Hindu of the day wrote:
“To the vast majority of the investors who with their helpless dependants can be counted by the thousands, in Southern India, the insolvency of the firm is a calamity which might well nigh mean their ruin.”
36. So, it is not a difficult inference that whatever money deposited in M/s Arbuthnot and Co., by Adhilakshmi ammal should have been vanished by 2006, due to bankruptcy. Even otherwise it would have been withdrawn and used by Adhilakshmi ammal as found in Ex.B2. Therefore, as stated in Ex.B2, the trust corpus would not have existed for long. However, the wish of Adhilakshmi ammal has been carried out from out of the income of Devaraja Mudaliar and he in his Will has permitted the Executor to letout a portion of the Choultry or to alienate, for maintaining the Choultry and to carry the charitable work.
37. The plaintiffs herein, who claim to be the descendants of Adhilakshmi ammal, have not cared to carry out the charitable work. Neither their mother Kamalabai ammal, through whom the plaintiffs now claim trusteeship has done any charity pursuant to the trust deed.
38. It was Devaraja Mudaliar and after him, his son-in-law Gajaraja Mudaliar,who had been in possession and enjoyment of the property. There is no piece of evidence to show any charity carried on after the death of Devaraja Mudaliar. The plaintiffs have conveniently slept over the Trust deed Ex.A2 and the Will Ex.B2 or the obligations mentioned in those deeds,but now questioned the transactions which took place in the year 1981 as well as in the year 2002 very belatedly. The prayer in the suit, which has been extracted above not even claim the right of trusteeship of the Adhilakshmi ammal Dharma Chathiram, but only seek possession of the property. From the prayer, the intention of the plaintiffs is made very clear. By harping upon the trust deed, the defendants want to get the property over which they lost right whatsoever by acquiescence and efflux of time.
39. After Devaraja Mudaliar, the suit property has passed on to Gajaraja Mudaliar. Under Ex.B2 Will, Gajaraja Mudaliar has been appointed as Executor of the Will. Srinivasan, son of Gajaraja Mudaliar is the legatee under the said Will. As far as the Choultry, which is the suit property, is concerned, without any ambiguity the Will Ex.B2 says trusteeship should go to Srinivasan, after Gajaraja Mudaliar's demise.
40. The event, which happen between the demise of Devaraja Mudaliar in the year 1946 and the demise of Gajaraja Mudaliar in the year 1978, is relevant which the Court below failed to take note of it. Srinivasan the named legatee under the Will is not to be found for more than 30 years. Kamalabai Ammal, who is the other descendant of Devaraja Mudaliar through his daughter Padmavathi ammal admits that she did not know about the suit property or know Whether the charitable trust mentioned in the trust deed of the year 1900 is still alive or become defunct or redundant. There is no evidence from the plaintiffs to show, Kamalabai ammal was any way interested or evinced interest about the trust activities during her life time.
41. When we search answer for the queries, (i)whether the trust mentioned in Ex.A2 ever existed; or if existed, how long it existed;
(ii) whether it could have existed, after its corpus got extinguished. The answers could be seen from the Will Ex.B2 and the conduct of the parties.
42. The recital of Ex.B2 clearly indicates that the trust created by Adhilakshmi ammal has become non functional by the time Ex.B2 executed. The management of the property has gone away from the descendants of Devaraja Mudaliar. Nobody who fall under the class 'santhathis' of Devaraja Mudaliar was interested in the property or trusteeship till the present suit filed in the year 2004. By the time, the suit filed, the persons who were in possession and administration of the property had changed the character of the property.
43. Though the suit is filed under Section 92 of the Civil Procedure Code, the relief sought by the plaintiffs is not one which could fall under Section 92 of the Civil Procedure Code. The plaintiffs, who claim themselves as 'Santhathis' of Devaraja Mudaliar have not whispered that they are the defacto trustees or they wish to get them declared as dejure trustees. Though the suit is filed in the name of Trustees of “Adhilakshmi ammal Dharma Chathiram”, the evidence reveals that they never been the trustees of Adhilakshmi ammal Dharma Chathiram.
44. The trial Court has erroneously presumed that in Ex.A2 it is clearly stated that Devaraja Mudaliar and his descendent alone shall become trustees of the trust, so there is no need to ask for a declaratory relief. The Court ought to seen through the game plan of the plaintiffs not seeking the relief of declaration regarding trusteeship, the plaintiffs have explicitly revealed their intention to get the possession of the property but not the trusteeship or the responsibility of trusteeship.
45. That apart, the suit itself is not sustainable under Section 92 of the Civil Procedure Code as pointed out by the counsel for the appellants. The relief sought does not fall under any category mentioned in Section 92 (1)(a) to (h)of the Civil Procedure Code. It is obvious from the records that the suit has been contested through the power agent G.Rajan Mudaliar and not by the plaintiffs. Since the suit under Section 92 of the Civil Procedure Code itself is a class suit, such suit cannot be represented by an Agent, who does not fall under the class for which the suit is filed.
46. In the Judgment of Man Kaur (dead) by LRS v. Hartar Singh Sangha reported in[(2010)10 SCC 512], the Hon'ble Supreme Court, while summarizing who should give evidence in regard to matters involving personal knowledge, has held that “...(g)Where the law requires or contemplate the plaintiff or other party to a proceeding, to establish or prove something with reference to his “state of mind” or “conduct”, normally the person concerned alone has to given evidence and an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his “bona fide” need and a purchaser seeking specific performance who has to show his “readiness and willingness” fall under this category...”
47. Therefore, the following illegality and perversity are found in the judgment of the Court below:
(a) the plaint under Section 92 of the Civil Procedure Code is filed for personal interest of some third party, who is no way connected to Adhilakshmi Ammal.
(b) the plaintiffs have failed to depose before the Court and establish their state of mind that they as trustees designated and ready to take the responsibility of carrying out the purpose of the Trust.
(c) The Will of Devaraja Mudaliar Ex.B2 proves that the Trust founded by Adhilakshmi ammal has become non functional due to extinguishment of its corpus and it was Devaraja Mudaliar used his earnings to maintain the Choultry.
48. In Second Appeal Nos.855, 856 and 858 of 2011, the appellants are the title holders of the respective portion of the suit property described as 'C' schedule. They have purchased the property from the first and second defendants. The trial Court has dismissed the suit on the ground that they have created sale deeds in collusion. Therefore, they are not entitled for injunction against the defendants (Arivudai Nambi).
49. While holding so, the lower appellate Court has observed that it is very painful that the trust founded by philanthropist caught in the hands of unscrupulous persons. The observation is true and there is no second opinion about it, but, the respondent who claims right in the property is not a better person. He has deposed that though he has no right in the property, but he is entitled to interfere with the possession of the appellants as power agent of the descendants of Devaraja Mudaliar.
50. It has already been pointed out that the pleadings and the conduct of the descendants of Devaraja Mudaliar reveals that they have no interest in administering the Trust, but only to enjoy the property. Therefore, the Court need not take away the trust property from one unscrupulous person and give it to another unscrupulous person. As the Latim Maxium goes “In pari delicto potior est conditio defendentis” (the Court need not assist any illegal transaction). The relief sought in the suit in O.S.Nos.83 to 85 of 2004 which are the subject matter of these three appeals is only against Arivudai Nambi in his individual capacity. As per the records only, G.Rajan Mudaliar is the power agent of P.Srinivasan, P.Saraswathi, P.Syamaladharan and P.Viajayalakshmi for the plaintiffs, who claim themselves as trustees of Adhilakshmi ammal Dharma Chathiram. Just because his father is the power agent of persons claiming trusteeship, Arivudai Nambi cannot interfere in the possession of the appellants in S.A.Nos.855, 856 and 858 of 2004 unlawfully.
51. Adhilakshmi Ammal Dharma Chathiram is a public trust. It is very obvious from the facts above narrated, the trust was in existence even before the execution of the formal Trust deed in the year 1900 by Adhilakshmi ammal. It also clear that by 1936 the Trust activity has substantially reduced but not totally extinguished as claimed by the plaintiffs. The intervention of Ex.B2 do have retained the characteristic of the trust but had only deviated the line of trustee. However, there was no quarrel between the parties or dispute regarding the persons who were in management of the suit property. It was for years only Gajaraja Mudaliar, till his death in the year 1978 and thereafter the appellants have taken over the trust property. By 1981 the defendants 1 and 2 have started alienating portions of Trust land. By the said conduct the defendants 1 and 2 have lost the credence to be the trustees of the suit property. The plaintiff or their predecessors had never been in management of the Trust nor possession of the suit property for carrying out the charity. Even in the present suit, they have neither expressly claimed declaration as trustee nor impliedly sought for trusteeship to manage the trust property. In addition, the failure of the plaintiffs to appear before the Court and record their interest in the property and intention to protect the trust land makes them disqualified to sustain the suit.
52. To sum up, the suit property is a trust property under Ex.A-2 dated 02.10.1900. The recital of the Trust Deed reveals, the charity mentioned in the trust deed had already been carried by the author of the Trust Adilakshmiammal and the charity is public in nature. The corpus to carry on the charity got extinguished soon after the execution of the trust deed, but the charity continued by the first trustee Devaraja Mudaliar. Ex.B2 the Will executed by Devaraja Mudaliar deviated the line of trusteeship mentioned in Ex.A-2. The reason and necessity for the said deviation explained in the Will itself. The first and second defendants have sold away a portion of the trust property to third defendant in the year 1981 mentioning the property as their personal property devolved upon them through the deeds Ex.A-2 and B-2. Since then, the third defendant is in possession and enjoyment of the portion sold to him. Like wise, the remaining portion shown under schedule 'C' of the plaint were sold away by the 1st and 2nd defendants to defendants 4 to 7 in the year 2002. Under the said facts and circumstances :
i) The suit O.S.No.81/2004 filed under Section 92 of CPC without any relief mentioned in clauses (a) to (h) of Sub-section (1) is not sustainable. Further, under Section 63 of the Indian Trust Act, 1882, where the trust property comes into the hands of a third party inconsistent to the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust. In this case, the plaintiffs in the suit has not sought for declaration relief, but only possession. Thus, the suit lacks bonafide.
ii) The plea of limitation advanced by the third defendant who is the first appellant in S.A.No.857/2011 is not legally sustainable, since under Section 10 of the Limitation Act, 1963 for the purpose of following the trust property into the hands of the third persons, no suit shall be barred at any length of time.
iii) Further, the defendants 3 to 7 who are the appellants in S.A.857 of 2011 are not bona fide purchasers for value. They have purchased the trust property knowingly it is a trust property and against the principle of caveat emptor.
iv) The suits for bare injunction against Arivudai Nambi the respondent is S.A.No.855 of 2011, S.A.No.856 of 2011 and S.A.No.858 of 2011 are sustainable, since it is filed by the appellants, who are admittedly in possession of the property. However, they are not entitled for the relief sought, since their possession is not a lawful possession. The sale of trust property without leave of the court is not valid. Further, these appellants are not bonafide purchasers for value.
53. In the given circumstances, it is evident that the purpose of the trust cannot be carried out, according to the directions given in the intrument Ex.A-2 which created the trust. So, the court as “parens patriae” has the duty to protect the trust property, which has been caught between persons, who have illegally transferred the trust property and persons, who are not really interested in the trust and never discharged the responsibility of the trust and relinquished the right of trusteeship by implication. It is therefore, imperative to apply the doctrine of cypress laid down under sub -section (3) of Section 92 of CPC.
54. The purpose of the trust executed by Adilakshmiammal is to provide free shelter and serve water to quench the thirst of the general public visiting Thirukazukundram. Thirukaukundram is a town, where the Vedagiriswarar Temple dedicated to the god 'Shiva' is located. The said temple is managed by the Tamil Nadu Hindu Religious and Endownment Department, which has copious funds at its disposal.
If the suit schedule property is entrusted to the Hindu Religious and Charitable Endowments Department, they can put up structures and make use of the income to carry out the purposes of the trust and allied purposes mentioned in Ex.A-2.
55. Therefore, to prevent further abuse of process of Court by the land grabbers and to met the ends of justice the following directions by way of decree is hereby passed:
1) The appellants,their Agents, Nominees, Representatives or Alienees, whoever in possession of the suit property shall deliver the possession to the Assistant Commissioner, Hindu Religious and Charitable Endowments Department, in-charge of Thirukazukundarm Vedagiriswarar Temple, within a period of three months from the date of this judgment.
2) The Hindu Religious and Charitable Endowments Department through its Commissioner or any Officer Authorised by him shall take over the possession of the suit property and submit Action Taken Report to the AG & OT, Chennai along with proposed plan to make use of the suit property in order to serve the purpose of the Trust created by Late Adilakshmiammal in the Trust Deed dated 02.10.1900.
3) It is open to the purchasers of the suit property, if so advised, to proceed against their vendors for conveying property to which they never had title or right, if it is within the period of limitation or saved in the light of the explanation to Section 5 of the Limitation Act, 1963.
56. In the result, the Second Appeal Nos.589 of 2011 and 855 to 858 of 2011 are dismissed with the above directions. No order as to costs. Consequently, connected Miscellaneous Petitions are closed.
03.03.2017 Index:Yes/No Internet:Yes/No ari To
1. The Principal District Court, Chengalpattu.
2. The Principal Sub Court, Chengalpattu. Copy to:
1. The Commissioner, Hindu Religious and Charitable Endowments, Uthamar Gandhi Road, Nungambakkam, Chennai-34.
2. The Administor General and Official Trustee of Tamil Nadu(AG & OT), High Court Campus, Chennai-104.
Dr.G.Jayachandran, J.
ari Pre-delivery Judgment made in Second Appeal Nos.589 of 2011 and 855 to 858 of 2011 03.03.2017 http://judis.nic.in