Madras High Court
S.M.Govindarajulu vs P.V.Seshadri
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
RESERVED ON : 22.11.2016
DELIVERED ON : 15.12.2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
C.S.No.746 of 2005
1.S.M.Govindarajulu
2.S.Harinath .. Plaintiffs
vs.
1.P.V.Seshadri
2.P.Niranjan
(Trustees of Poornavalli
Thayarammal Charities) .. Defendants
Civil Suit filed under Section 92 of CPC read with Order IV Rule 1 of Original Side Rules 1956 praying for the following judgment and decree against the defendants.
(i) that the defendants 1 and 2 be removed from the office of the trusteeship of P.Poornavalli Thayarammal Charities.
(ii)That fit and proper persons may be appointed in their place and the board of management of the trust be vested with them.
(iii) The defendants may be directed to deliver possession of all the trust properties, including properties described in the schedule to the plaint in their possession or control to the trustees to be appointed by this Court.
(iv)That the defendants be directed to render accounts of all the realization and disbursements made from the time of taking over of management of the trust on or about 26.10.1979.
(v)Settling a scheme of management for the proper administration of the trust;
(vi)that the cost of this suit may be directed to be paid out of the estate; and that such further or other reliefs
For Plaintiff : Mr.O.Padma Prakash
For defendant : Mr. P.Subha Reddy
J U D G M E N T
The suit is filed for removal of defendants from the trusteeship; to appoint proper persons and deliver possession of the trust properties and to render accounts.
2.The brief facts of the case of the plaintiffs are as follows:
Originally, the suit properties belonged to one Mr.Cavali Narasimhulu Chetty. The said Narasimhulu Chetty had two daughters by name (i) Poornavalli Thayarammal, alias Chengavalli Thayarammal, born through his first wife and (ii) P.Venkatakrishna Chenchu Bai Ammal, born through his second wife. Cavali Narasimhulu Chetty executed a deed of settlement dated 30.8.1914 in respect of the suit properties and as per the settlement deed, the suit properties were to be possessed and enjoyed by Poornavalli Thayarammal alias Chengavalli Thayarammal during her life time and after her death, the suit properties should be enjoyed by her children as well as the issues of any of her pre-deceased children. In the event of the said Poornavalli Thayarammal alias Chengavalli Thayarammal dying issueless, the suit properties should revert to Cavali Narasimhulu Chetty and his heirs for performing certain charitable activities. Since Cavali Narasimhulu Chetty died in the year 1926, his first daughter, Poornavalli Thayarammal alias Chengavalli Thayarammal, was in possession of the suit properties and she also died issueless in 1941. After her demise, Cavali Narasimhulu's second daughter P.Venkatakrishna Chenchu Bai Ammal, took possession of the suit properties and was performing the charities stipulated under the settlement deed dated 30.8.1914.
2. The said P.Venkatakrishna Chenchu Bai Ammal also died on 24.3.1975 leaving behind her husband P.A.A.Aiyannah Chetty, two sons, viz, the defendants herein, and four daughters, viz., Sayee Sundari, P.Andal, Swarnamukhi and J.Chithra as her surviving legal heirs and after her demise, her husband P.A.A.Aiyannah Chettiar continued to perform the charities. After the demise of the said P.A.A.Aiyannah, the suit properties were taken over by the defendants herein. But the daughters of the said P.A.A.Aiyannah Chettiar were completely excluded from participation in the management of the Trust. The defendants also stopped performing the charities mentioned under the deed of settlement and there are number of acts of waste, resulting in loss and damage to the Trust properties.
2.2. The first plaintiff is the husband and the second plaintiff is the second son of one Swarnamukhi, who is one of the daughters of P.A.A.Aiyannah Chetty. The first plaintiff along with his wife, Swarnamukhi, one of the daughter of P.A.A.Aiyannah Chetty, and another member of the Vysya Community filed C.S.No.680 of 1991 before this Court for removal of the defendants from the office of Trusteeship and appointment of fit and proper persons in their place and the Board of Management of the Trust and the same was subsequently, withdrawn as settled out of Court.
2.3. In terms of Clause 2(a) of the schedule of Management annexed to the agreement, the defendants should hold the office of trustees for life and in terms of 2 (b) of the Scheme, two persons among the female heirs of Smt.P.Venkatakrishna Chenchu Bai Ammal or their husbands or any one claiming through them should hold office as additional Trustees for a term of three years. Though first set of two additional trustees were appointed, after the expiry of their term, the defendants have not nominated new additional trustees as required under Clause 2 (b) of the scheme. None of the daughters of P.A.A Aiyannah Chettiar are now alive. The defendants have brushed aside this stipulation and running the charities excluding the husbands and children of the female descendants of P.A.A.Aiyannah Chettiar from the Management of the Trust. Therefore, the plaintiffs prayed for judgment and decree.
3. The case of the defendants in nut shell, are as follows:
The suit property consists of two immovable properties, viz.,house and ground and as per the settlement, the settlor during his life time and his heirs after his life time shall be the trustees entitled to perform the said charities. Since the settlor Cauveli Narasimhulu Chetty died, his daughter, Poornavalli Thayarammal alias Chengavalli Thayarammal was in possession of the properties. Since she also died issueless, as per the settlement, P.Venkatarakrishna Chenchu Bai Ammal, who was born through his second wife was in possession and enjoyment of the suit properties and after her death, her husband, viz., P.A.A.Aiyannah Chettiar was in possession. After his death, the Management of the Trust was taken over by his two sons, namely, the defendants herein, and rest of the legal heirs were excluded from participation of the Management of the trust.
3.1. It is the case of the defendants that the plaintiffs also filed a suit in C.S.No.680 of 1991 for the very same relief and the same was thereafter withdrawn by them as the parties have agreed that further conduct and Management of the Trust shall be as per the scheme annexed to the Memo of Compromise entered into between them in the said suit, i.e. C.S.No.680 of 1991. Further, as per the scheme, the defendants have no objection for four more additional trustees from the branch of the four sisters to be appointed to hold office. In spite of the same, the plaintiffs have filed the present suit for the very same relief, after a period of five years. According to the defendants, the suit is not maintainable as there is no cause of action. Hence, the defendants prayed for dismissal of the suit.
4. On the above pleadings, this Court, on 30.11.2007 has framed the following issues:-
1.Whether the plaintiff is entitled to get a decree for removal of D1 & D2 from the office of the trusteeship of P.Poornavalli Thayarammal Charities?
2.Whether the fit and proper persons are to be appointed in the place of D1 and D2 in the above said trust as prayed for?
3.Whether the defendants are liable to deliver the possession of the trust properties including the properties described in the plaint schedule in their possession or control to the trustees to be appointed by this Court?
4.Whether the plaintiffs are entitled to a preliminary decree for rendition of accounts as prayed for?
5.Whether the scheme decree is to be passed as prayed for?
6.To what relief the plaintiff is entitled?
5. On the side of the plaintiffs, P.W.1 was examined and Exs.P1 to P3 were marked. On the side of the defendants, D.W.1 was examined and Exs.D1 to D9 were marked. The details of the documents are hereunder:
S.No. Exhibits Date Description of documents
1.
P-1 30/08/1997 The Original memorandum of agreement
2. P-2 29.10.2004 The Office copy of the notice
3. P-3 30.08.1914 The Certified copy of the settlement deed Exhibits produced on the side of the defendants:
S.No. Exhibits Date Description of documents
1. D-1 01.04.2005 The bank statement
2. D-2 01.04.2007 to 31.07.2008 The bank Statement
3. D-3 23.04.2007 Receipt of Arulmigu Kothadaramasamy Temple, West Mambalam
4. D-4 12.05.2008 Receipt of Arulmigu Kothadaramasamy Temple, West Mambalam
5.
D-5 (series) Debit Vouchers (42 Nos)
6. D-6 03.06.2006 The receipt of Sri Kanyaka Prameswari Devasthanam and Charities Witnesses examined on the side of the plaintiffs:
P.W.1. - S.M.Govindarajulu Witnesses examined on the side of the defendants D.W.1 P.V.Seshadri
6. Heard, Mr.O.Padmaprakash, learned counsel appearing for the plaintiffs and Mr.P.Subha Reddy, learned counsel appearing for the defendants and perused the records.
7. The learned counsel for the plaintiffs submitted that the suit properties, which consists of two items, were originally meant for charitable activities, i.e. for feeding Brahmins in the temple of Ranganathaswamy situated in Mulla Sahib Street, George Town, Chennai or any such other Vaishnavite temple in the city of Chennai from the net income arising from the first item of the suit properties and for performance of daily worship and food offerings in the temple of Sri Rama at Mambalam, Saidapet Taluk, from the net income arising from the second item of the suit properties.
8. The learned counsel for the plaintiffs further submitted that one Cavali Narasimhulu executed a settlement deed in favour of Poornavalli Thayarammal, alias Chengavalli Thayarammal, who was born through his first wife, for her life time and after her death, the suit properties should be enjoyed by her children as well as the issues of any of her pre-deceased children. As the said Poornavalli Thayarammal alias Chengavalli Thayarammal died issueless, as per the settlement deed, the suit properties were reverted to Cavali Narasimhulu Chetty's legal heirs. Accordingly, one P.Venkatakrishna Chenchu Bai Ammal, who was born through the second wife of Cavali Narasimhulu Chetty, took possession of the suit properties and was performing the charities as specified in the settlement deed. The said Venkatakrishna Chenchu Bai Ammal also died leaving behind her husband,viz., P.A.A. Aiyannah Chettiar, two sons, the defendants herein, and four daughters. Therefore, her husband, viz., P.A.A.Aiyannah Chettiar, the father of the defendants herein, was in possession. Since the said P.A.A.Aiyannah Chettiar also died, the Management of the Trust was taken over by his two sons,the defendants herein, and rest of the legal heirs were excluded from participation of the Management of the Trust.
9. It is the submission of the learned counsel for the plaintiffs that the defendants are committing irregularity in the Management of the Trust from the very beginning by treating the Trust properties as their own properties. Therefore, the first plaintiff along with his wife, Swarnamukhi and another member of the Vysya community filed a civil suit being C.S.No.680 of 1991 for removal of the defendants from the office of the trusteeship and for various other reliefs. Since the compromise was entered into between the parties, the said suit was withdrawn as settled out of Court. As per the terms of compromise, the female heirs of the Venkatakrishna Chenchu Bail Ammal, namely, the first plaintiff, the husband of Mrs.Swarnamukhi, and Mr.Janardanam, husband of Mrs. Chitra, were appointed as the first set of additional trustees and the defendants were appointed as a trustees for life. However, after the expiry of the term, the defendants have not chosen to appoint another set of trustees, as per the compromise entered, and totally excluded the other legal heirs from the participation of affairs of the Trust properties.
10. It is also the submission of the learned counsel for the plaintiffs that the defendants are not managing the suit properties as set forth in the agreement and they have collected huge amounts from the various tenants and committed the acts of waste and irregularity in the management of the affairs of the Trust. It is the submission of the learned counsel for the plaintiffs that though Exs. D1 to D6 have been filed by the defendants as if they are performing the charities well, the said documents are obtained only for the purpose of the case. The alleged statement of accounts relied on by the defendants is also not proved. Therefore, it is the submission of the learned counsel for the plaintiffs that in order to prevent further loss and damage in the suit property, the defendants have to be removed from the Trust. Thus, the learned counsel for the plaintiff's prayed for judgment and decree.
11. Countering the arguments of the plaintiffs, the learned counsel for the defendants submitted that the suit has been filed only to vindicate the rights of the defendants. In fact, the plaintiffs have filed another suit being C.S.No.482 of 2000 in respect of other properties for various reliefs including the partition as well as for framing the scheme. The suit property is the public Trust as the beneficiaries are the public and indeterminate persons. It is the contention of the learned counsel for the defendants that the plaintiffs have filed the suit, without obtaining Leave under Section 92 of the CPC, which is mandatory in nature.
12. It is the main contention of the defendants that except bald allegations in the plaint about mismanagement of the Trust properties, the plaintiffs have not stated anything specifically by producing concrete evidence. Exs.D1 to D6 clearly proved the nature of charities continuously done by the defendants. The entire suit properties were under the control of the defendants from the year 1979. Prior to that, their father was managing the Trust. Therefore, the plaintiffs in collusion with the tenants in other properties have filed the present suit with ulterior motive. Hence, the learned counsel for the defendants prayed for dismissal of the suit.
13. In the light of the above submissions, now this Court has to answer the above issues.
Issue Nos: 1 to 6
14. It is not in dispute that the suit properties were originally meant for charitable purpose. Under Ex.P3, deed of settlement dated 30.8.1914 was executed by one Cavali Narasimhulu Chetty, in favour of one Poornavalli Thayarammal alias Chengavalli Thayarammal. In the said settlement deed, it is stated that in the event of the settlee referred to above, dies issueless, the property shall revert to the settlor and his legal heirs. The charities set out in the above deed clearly show that income from the first item of the suit property should be utilised for feeding brahmins in the temple of Ranganathaswamy situated in Mulla Sahib Street, George Town, Chennai or in such other Vaishnavite temple in the city of Chennai and that the income from second item of the suit properties should be utilised for the performance of the daily worship and food offerings in the temple of Sri Rama at Mambalam, Saidapet Taluk. Furthermore, the aforementioned deed clearly shows that the settlor and settlee shall be the trustees entitled to perform the said charities.
15. It is to be noted that item 1 and 2 of the suit properties were specifically meant for charities for feeding the Brahmins in the Ranganathaswamy temple and any other temple and offering daily worship and food offerings at Sri Rama temple and settlor and his legal heirs shall be the trustees entitled to perform the said charities. The purpose set forth in the above document is not with regard to any specific person but the beneficiary contemplated in the above document is public in general. The feeding of Brahmins is in general and not with regard to any specific person. These facts can be easily culled out form Ex.P3 document. When the charities were meant for the indeterminate persons, such service is only connected with the religious charities like observance of religious character. Such charities can be only public in nature. Ex.P3 would prove the same.
16. It is not disputed by both sides that Cavali Narasimhulu Chetty had two wives and Poornavalli Thayarammal alias Chengavalli Thayarammal, the settlee in Ex.P3 is the daughter of the said Cauvali Narasimhulu Chetty through his first wife. The said Poornavalli Thayarammal died issueless. This fact is also not disputed by both sides. As per the intention of the settlor, the property was reverted back to the legal heir of Cauvali Narasimhulu Chetty, namely, P.Venkatakrishnaa Chenchu Bai Ammal, who is the daughter of the Cauvali Narasimhulu Chetty through his second wife Cauvali Danalakshiamma. This fact is also not disputed by both sides. The said P.Venkatakrishna Chechu Bai Ammal had four daughters and two sons. The two sons are the defendant herein. It is also not in dispute that the plaintiffs are the husband and son of one of the daughter of the Chenchu Bai Ammal, namely, Swarnamukhi.
17. Now entire dispute seems to be between the legal heirs of one of the daughter of Chenchu Bai Ammal and the defendants i.e. the sons of the Chenchu Bai Ammal. The legal heirs of other daughters of the Chenchubai Ammal were not made as parties to the suit, for the reasons best known to the plaintiffs.
18. In the above background, when this Court perused the other documents filed by the plaintiffs and the defendants, it is seen that one Swarnamukhi, who is none other than the husband of the first plaintiff and the mother of the second plaintiff, the first plaintiff herein and others have filed CS.No.680 of 1991 against the defendants herein for the same relief and during the pendency of the same, on 30.8.1997, the Memorandum of Agreement was made between the parties, which is evident from Ex.P1. As per the said agreement, the parties have agreed to treat the property as a private property and to include the other trustees in the properties. In view of this agreement, the aforementioned suit was dismissed as settled out of Court.
19. It is further to be noted that though the parties have agreed to treat the properties as a private property and agreed to enter into a Scheme for inclusion of other legal heirs of the daughters of the Chenchu Bai Ammal, from the pleadings of both sides, it could be seen that except for first period of three years, from the date of agreement, other legal heirs have not been included as trustees and the properties were managed only by the defendants.
20. As discussed above, it is the intention of the settlor that the suit properties should be utilised for the purpose of public charities. Therefore, the parties themselves cannot alter the intention of the settlor by entering into an agreement. Therefore, Ex.P1 cannot be given much importance as it deviate the intention of the settlor. In fact the property has been settled for the purpose of doing the charities by feeding the Brahmins in the temple and also for daily worship and food offerings. The above charities are not meant for any specific person. In fact, it was meant for public in general, i.e,not for specific individuals. Therefore, at no stretch of imagination, it can be concluded that the above charities are meant only for specific person.
21. On a careful reading of the pleadings of the plaintiffs, more particularly, paragraph 12 of the plaint, it is seen that the Trust and charities created under Ex.P3, settlement deed dated 30.8.1914, are of public in nature. It is also pleaded by the plaintiffs in the plaint that there are complaints from the temple for non- payment of expenses incurred for the performance of charities performed earlier. The entire pleadings contained in paragraph 12 of the plaint vouchsafe the fact that the Trust and charities are public in nature and it is not for any specific person. However, the fact remains that the suit properties are under the control of the defendants only.
22. Though the plaintiffs have also claimed for removal of the defendants from the suit properties for mismanagement, when the entire pleadings of the plaint are carefully read, except general allegations with regard to mismanagement, or acts of waste, there is no specific pleadings about the instances of the mismanagement or acts of waste reflected in the plaint. Similarly, insofar as the allegations that the defendants have received large sums of money from the tenants and received rental income of more than Rs.1,50,000/- are concerned, the pleadings are silent and there is no particulars about the tenants, net income, advance, whatsoever, received by the defendant in respect of the suit properties. Therefore, in the absence of any particulars as to the income, merely on the general allegation, the plaintiffs cannot claim for rendition of accounts. Even P.W.1, in his evidence, particularly, in the cross examination has admitted that he has no documents to prove the mismanagement. In the absence of any evidence to prove the mismanagement, the contention of the learned counsel for the plaintiffs that the defendants have committed mismanagement or the acts of waste cannot be accepted.
23. But the fact remains that Settlement Deed, Ex.P3 clearly indicate that all the legal heirs should be trustees of the properties. It is well settled that once the property revert back to the settlor and his legal heirs, all of them should be trustees. The specific recitals found in Ex.P3 reads as follows:
"The settlor and his legal heirs shall be the trustees entitled to perform the said charity"
24. From the above recital, the intention of the settlor was very clear that all his legal heirs should participate in the Trust activities and all of them shall be the trustees. But the defendants alone are enjoying the properties and doing some charities. Exs.D1 and D2 would prove that the defendants are maintaining the accounts. Exs.D3, D4, D5, D7 and D9 are receipts to prove the charities. Likely, D9 is the accounts submitted up to 01.01.2002 to 05.11.2013, which shows that withdrawals have been towards the expenses of the temple.
25. From the above documents, particularly, Exs. D1 and D9, it could be seen that some charities have been continuously done by the defendants. Merely, because of the fact that the plaintiffs are one of the legal heirs of Chenchu Bai Ammal's daughter and that they have not been participated in the Trust properties all these years, it cannot be presumed that there is a mismanagement.
26. In this context, in the decision reported in 1968 AIR (SC) 915, [Kt.N.Rm.THENAPPA CHETTIAR & OTHERS v. N.S.Kr.KARUPPAN CHETTIAR & OTHERS], the Hon`ble Apex Court has held as follows:
.. .. .. 6. We proceed to consider the next question arising in this appeal, viz., whether the plaintiffs are entitled to ask for the settlement of a scheme even on the assumption that they were not co-founders of the trust. The parties in this case have proceeded on the footing that the trust is a private trust, but the authorities establish that even in the case of a private trust a suit can be filed for the removal of the trustee or for settlement of a scheme for the purpose of effectively carrying out the objects of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a civil court by any person interested for the removal of the trustee and for the proper administration of the endowment.-(See, for example, Pramatha Nath Mullick's case(1) and Manohar Mookerjee v. Peary Mohan(2). There are also authorities to the effect that a Civil Court may frame a scheme in the ,case of a private endowment at the instance of the parties interested. The question has been discussed by the Calcutta High Court in Bimal Krishna's case(3) and it was held in that case that a scheme for the administration of a private endowment can be framed by a Civil Court. Mookerjee, J. observed in that case that in India the Crown is the constitutional protector of all infants and as the deity occupies in law the position of an infant, the shebaits who represent the deity are entitled to seek the assistance of the Court in case of mismanagement, fraud or maladministration on the part of the shebait and to have a proper scheme for management framed for the administration of the private trust. In Pramatha Nath Mullick's(1) case to which we have already made reference, the Judicial Committee itself directed the framing of a scheme in the case of a private endowment and the case was expressly remanded to the trial court for that purpose. In the present case the appellants being contributors to the trust are interested in the proper administration of the trust and, in our opinion, they have a sufficient right to bring a suit in a Civil Court in case there is mismanagement or breach of trust on the part of the managing trustee and for framing of a scheme. .. .. ..
27. From the above judgment, it is clear that even with regard to private Trust, suit is maintainable for framing Scheme when there is a mismanagement or breach of Trust. Whereas in this case, except general allegations rather than specific instances of mismanagement and breach of Trust, no convincing evidence available on record. Further, earlier litigation between the parties clearly show that parties are more interested in vindicating their personal rights. Further, only the legal heirs, who are entitled to become Trustees as per the intention of founder not made parties to the suit. Without their presence, framing of Scheme would not be for the interest of Trust itself. Therefore, this Court is of the view that all the legal heirs of the Chenchu Bai Ammal are entitled to be the Trustees and that, Trust shall be put in use to complete the intention of the settlor.
28. Accordingly, scheme has to be framed by the Court with respect to the suit properties in the presence of all the legal heirs and all the properties of Trust shall vest with the Trustees i.e. legal heirs, as per the intention of settlor of the property, who shall constitute Board of Trustees who shall from amongst themselves elect one as Managing Trustees. To put in use, any scheme to be framed by the Court, all the legal heirs are necessary parties without whom scheme cannot be framed effectively.
29. In view of the above discussions and the facts of the present case, the removal of the defendants from the trusteeship and rendition of accounts cannot be ordered. As already discussed, the legal heirs of the Chenchubai Ammal, who are the necessary parties in the suit, were not included as parties in the suit.
30. As discussed above, plaintiffs are advised to file a proper suit by impleading all the legal heirs of the original settlor, i.e. the grand children of Cauvali Narasimhulu Chetty, for framing the necessary scheme for running the Public Trust. Accordingly, issues are answered.
In the result, the suit is dismissed with liberty to file a fresh suit including all the legal heirs for framing of Scheme after obtaining Leave under Section 92 of the CPC from the competent Court. No costs.
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Internet : Yes/No
N.SATHISH KUMAR, J
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C.S.No.746 of 2005
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