Madras High Court
C.A.Baalu vs M/S.Addepalli Kandaswamy Chetty & ...
O.P. No.673 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 23.08.2024
Delivered On : 06.12.2024
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
O.P. No.673 of 2022
and O.A.No.702 of 2022
1.C.A.Baalu
2.B.Muralidharan … Petitioners
Vs
1.M/s.Addepalli Kandaswamy Chetty & Chenchu
Venkatasubhu Guruvajamma Charitable Trust,
Represented by its
i.President Mr.A.Subbukrishnan
ii.Secretary Mr.A.S.Nagaraj and
iii.Treasurer Mr.A.S.Ethis Gupta
Having office at No.91 (No.53), Kumarappa Street,
Kasi Garden, Nungambakkam, Chennai 600 034.
2.M/s.Addepalli Kandaswamy Chetty and Chenchu
Venkatasubhu Guruvajamma Charities Association
Represented by its
i.President Mr.A.Subbukrishnan
ii.Secretary Mr.A.S.Nagaraj and
iii.Treasurer Mr.A.S.Ethis Gupta
Having office at No.91 (No.53), Kumarappa Street,
Kasi Garden, Nungambakkam, Chennai 600 034.
3.M/s.Orchid Foundations Private Limited,
Represented by its Directors
i.Mr.V.Balasubramaniam
ii.Mr.S.Srinivasan
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O.P. No.673 of 2022
iii.Ms.V.M.Uma Maheswari
having its office at No.99, V.M.Street,
Mylapore, Chennai-600 004.
4.Dr.Sujay Anand
5.Venkata Swaroop Reddy Siddavarapu
6.K.Subba Rao
7.Dr.P.Swaira
8.K.Sandhya Rao
9.Sashikumar Natarajan ... Respondents
PRAYER: Original Petition filed under Section 7 of the Charitable and
Religious Trusts Act, XIV of 1920, to declare the documents and
encumbrances misinterpreting the Order dated 30.01.2008 in O.P.No.31 of
2008 passed by the learned Principal Judge, City Civil Court at Chennai as
null and void and not binding the petition schedule property.
For Petitioners : Mr.T.V.Vineethkumar
For Respondents : Mr.V.Balakrishnan for R3
Mr.Krishna Ravindran for R6 to R8
Mr.D.Suriya Durai for R9
ORDER
The present petition is filed under Section 7 of the Charitable and Religious Trusts Act, 1920, in the matter of the Addepalli Kandaswamy Chetty and Chenchu Venkatasubhu Guruvajamma Charitable Trust. https://www.mhc.tn.gov.in/judis 2/21 O.P. No.673 of 2022 2(a) The petitioners have filed this application seeking the relief of declaration and declaring the documents and encumbrances created over the schedule mentioned property, misinterpreting the order dated 30.01.2008 in O.P.No.31 of 2008 passed by the learned Principal Judge, City Civil Court at Chennai, as null and void and not binding on the petition schedule property.
2(b) The charitable trust known as M/s.Addepalli Kandaswamy Chetty and Chenchu Venkatasubbu Guruvajamma Charitable Trust was created by a Deed of Declaration dated 02.11.1915 by Thiru. Addepalli Kandaswamy Chetty and Chechu Venkatasubbu Guruvajamma with the objective of performing poojas to the Lord Subramanya and Lord Nagathamman Deity situated at No.15, Kumarappa Mudali Street, Nungambakkam, Chennai-600034 and also for the purpose of prasadam distributions, brahmana sandarppana and feeding of relations and devotees. The above said founders of the trust also dedicated 3 items of property to the trust for the purpose of doing the above said public charities. The above said trust is a Public Charitable Trust with the objects of public charities and governed under the Public Trust Act. According to the petition, the petitioners are worshippers of the temple of Lord Muruga and Lord https://www.mhc.tn.gov.in/judis 3/21 O.P. No.673 of 2022 Nagathamman, which was maintained by the trust.
2(c) After exchange of legal notice, the petitioners alleged that the vesting of property in favour of the Society from trust is illegal and invalid. Since the trustees of the trust and office bearers of the society (President, Secretary and Treasurer of the trust and the society) are one and the same without there being anybody to object for the merger and by suppression of these facts, they had obtained the order in O.P.No.31 of 2008.
2(d) It is further contended that the object of creation of the society seems to be only to alienate the property for the personal gains of the trustees/office bearers. The property belongs to Public Charitable Trust and as such without any permission from the Court, the sale effected in favour of the respondents 3 to 9, is illegal and invalid. The sale effected to the third respondent is for Rs.1,72,48,000/-. Moreover, the mortgage created on the very same day is for Rs.7,38,00,000/-. It clearly establishes that the property has been undervalued for sale and black money seems to have been received by the respondents 1 and 2. Further, the sale was effected to the fifth respondent for Rs.4,12,96,125/- and further, the sale was effected to the respondents 6 to 8 for Rs.13,48,48,000/-. Finally, the sale was effected to the https://www.mhc.tn.gov.in/judis 4/21 O.P. No.673 of 2022 nineth respondent for Rs.3,37,12,000/- has been undervalued and hence, they seek for the above declaration.
3(a) In the Original Application, as per the Judge's summons under Order XIV Rule 8 of O.S. Rules r/w Order 39 Rule 1 and 2 of CPC, it was prayed that an order of Ad-interim Injunction restraining the respondents 6 to 9 from creating any encumbrance over the property, putting up any construction or altering the physical features of the property bearing Door No.91, New No.53 and 15, Kumarappa Mudali Street, Nungambakkam, Chennai 600 034, more fully described in the schedule to the petition.
3(b) The original trustees are arrayed as respondents 1 and 2 and the respondents 4 and 5 are the general powers of attorney. The property was sold to the third respondent. Subsequently, sold to respondents No.6 to 9. The respondents 1 and 2 remained ex-parte. The third respondent filed a counter. A separate counter is filed by the fourth respondent. Common counters by the respondents 6 to 8 were filed.
https://www.mhc.tn.gov.in/judis 5/21 O.P. No.673 of 2022 4(a) As per the counter of the third respondent, a minimum of 4 hereditary trustees should administer the trust. If the minimum numbers of hereditary trustees are not available, the existing trustee should appoint 25 people from the Vysya community and form a society for administration. Accordingly, Subbukrishnan, the sole surviving hereditary trustee, passed a resolution, dated 21.05.2007 to convert the trust into society and to vest the trust property into society. Subbukrishnan, the sole existing trustee, appointed 25 members of the Vysya community and bye laws for the society were framed and the same was registered before the Registrar of Societies. The erstwhile trustee has moved an application after forming a society as per the intention of the founders before the Principal City Civil Court in O.P.No.31 of 2008 seeking a direction under Section 7 of the Charitable and Religious Trusts Act by permitting the said property to vest with the society and the same was ordered. The present original petition has been filed under Section 7 of the Charitable and Religious Trust Act, 1920. This section deals with the power of trustees of a charitable or religious trust to apply for directions by application to the Court. Whereas only the trustee has the power to file and maintain an application under Section 7 of this Act, whereas, in the present case, the petitioner is not a trustee or beneficiary of the erstwhile trust. Therefore, the petitioner does not have any locus standi https://www.mhc.tn.gov.in/judis 6/21 O.P. No.673 of 2022 to maintain a petition under this provision. Therefore, the petition filed by the petitioner is liable to be dismissed.
4(b) The counter of the fourth respondent is taken into account. 4(c) As per Section 9(b) of the Act, the original petition shall not be filed or entertained under the provisions of this Act in relation to any trust if the trust property is vested in any society duly registered under the Societies Registration Act, 1860, whereas in the present, the trust property has been duly vested with the society, namely, Addepalli Kandaswamy Chetty and Chenchu Venkatasubbu Guruvajamma Charities Association, as per the orders of the City Civil Court, Chennai in O.P.No.31 of 2008. Hence, the present petition filed by the petitioners is liable to be dismissed.
5.The learned counsel for the petitioners, based upon the above pleadings, would contend that the trust property was sold without permission of the Court as required under the Charitable and Religious Trusts Act and further, the sale effected by them is also void in law. After perusing the prayer in the main original petition, I find that the present application seems to have been filed as if they are challenging the order passed by the learned https://www.mhc.tn.gov.in/judis 7/21 O.P. No.673 of 2022 Principal Judge, City Civil Court in O.P.No.31 of 2008.
6.Be that as it may, as per the Court direction, the trust deed was filed and also the order passed by the learned Principal Judge, City Civil Court in O.P.No.31 of 2008, dated 30.01.2008.
7(a) The case of the respondents 6 to 8 is that they are the bona fide purchasers of the property at Door No.15, Kumarappa Mudali Street, Nungambakkam, Chennai. The present purchasers have filed their counter. The sum and substance of the counter filed by the contesting respondents are to the effect that the trust property has been duly vested with the society.
7(b) As per the plaint, the vesting of property in favour of the society from trust is illegal and invalid. Since the trustees of the trust and office bearers of the society (President, Secretary and Treasurer of the Trust and the Society) are one and the same without there being anybody to object for the merger and by suppression of these facts, they had obtained the order in O.P.No.31 of 2008. As such, the property as to contrasted as one belongs to Public Charitable Trust and as such without any permission from the Court, the sale effected in favour of the respondents 3 to 9, is illegal and invalid. https://www.mhc.tn.gov.in/judis 8/21 O.P. No.673 of 2022 7(c) The main contention of the petitioners is that the property is a trust property. While the contesting respondents could project that it is a property of the society, not of the trust and consequently, the petition filed under Section 7 of the Charitable and Religious Trusts Act, 1920, is bad in law.
7(d) According to the respondents, the Section deals with the Power of Trustees of a Charitable or Religious Trust to apply for directions by application to the Court, ie., only the trustee has the power to file and maintain an application under Section 7 of the Act, whereas in the present case, the petitioners are merely claiming to be an alleged worshipper and they themselves admit that they are not a trustee in their petition. Therefore, the petitioners do not have any locus standi to maintain this petition.
7(e) As per Section 3 of the said Act, the trustees have power to apply to the Court in respect of trusts of a charitable or religious nature and the present petition is filed treating the schedule property as a charitable trust property. However, the present 'legal status' at the time of the first sale effected by the respondents 1 and 2 is a 'registered society' under the https://www.mhc.tn.gov.in/judis 9/21 O.P. No.673 of 2022 Societies Registration Act, 1860.
7(f) Further, as per Section 9 of the Societies Registration Act, if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any society registered under the Societies Registration Act, 1860 (21 of 1860) or if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
8.Trust deed filed by the parties is perused. The order passed by the learned Principal District Judge is also perused.
9(a) After hearing the rival submissions made by the respective parties and the documents filed by them, I find that the property in question originally forms part of a vast extent of lands measuring one cawine, ten guntas and 804 sq.ft, bearing municipal Door NO.15, situated in the eastern row of Kumarappa Mudali Street and comprised in Collector's Certificate No.1042, S.No.244, granted in the names of i)Addepalli Kandaswamy Chetty and ii) Addepalli Chandhu Venkatasubbu Guruvajamma on https://www.mhc.tn.gov.in/judis 10/21 O.P. No.673 of 2022 04.06.1912 as per the revenue extract and the said property was purchased on 19.12.1894 for Rs.1,800/-. The trust deed was created by the aforesaid two persons on 02.11.1915 in telugu, in which, three items of immovable properties were the subject matter of the property being item (i) of the trust deed and the same was registered as Doc.No.16 of 1916 at the office of Sub Registrar, Mount Road and it was clearly spelled out in the deed that the trust is for the purpose of carrying out certain poojas for the deity by the family members.
9(b) Addepalli Kandaswamy Chetty and Chenchu Venkatasubbu Guruvajamma Charitable Trust was created by the deed of Declaration of trust dated 02.11.1915 with the objective of performing poojas to Lord Subramanya and Lord Nagathamman Deity by the above Trust. On a close perusal of the trust deed in para 5, it was stated that “we both or either of us, so long as we are alive, shall be the trustees after our lifetime, to administer the trust, we hereby appoint i)Thommandlam Raghavalu Chetty, ii) Addepalli Viswanathan Chetty and iii) Mangapuram Chengiah Chetty these four as trustees”. Out of these, one person Thommandlam Raghavalu Chetty's lineage, aforesaid Guruvajamma's Parents lineage and one person Addepalli Viswanathan Chetty's lineage, aforesaid Kandaswamy Chetty's https://www.mhc.tn.gov.in/judis 11/21 O.P. No.673 of 2022 lineage shall have the right to become the heredity trustees always (permanent)”.
9(c) So also, this Court noticed at para 11 of the deed that “At any time for any reason, if the trustees fail to perform the Dharma Kainkaryam is likely to be stopped from performing, then we hereby give power to an association or sabha of not less than 25 members belonging to the Vysia community to be formed and the trustees shall be removed and fit and proper trustees shall be appointed and to see that the dharma kainkaryam is performed forever. The expenses that might be incurred for taking such action and court expenses that might be incurred in this behalf shall be reimbursed from and out of the income of the properties”, it mutates the trustee to form an association or sabha to see that the dharma kainkaryam is performed. Accordingly, they formed a society and registered as Registration No.81 of of 2007.
9(d) As per the powers enumerated in para 11 of the trust deed, the surviving trustee has moved an application under Section 7 of the Charitable and Religious Trust Act, 1920, before the Principal City Civil Court, Chennai in O.P.No.31 of 2008 and by order dated 30.01.2008, the https://www.mhc.tn.gov.in/judis 12/21 O.P. No.673 of 2022 petitioners were directed to cause public notice of the petition calling for objections from any person interested to put forth their objections if any to the grant of the permission as sought by the trustee before the said court and the said matter was duly published in Dinamalar newspaper on 13.02.2008, and after adducing the evidence and marking the documents thereon and upon hearing the arguments, the learned Principal Judge, Chennai, by order dated 30.04.2008 allowed the petition and permission was granted to vest the petition mentioned property with the society in the name and style of Addepalli Kandaswamy Chetty & Chenchu Venkatasubbu Guruvajamma charities Association for carrying on the objects of the erstwhile trust and to submit the report to that effect within a period of one month.
9(e) As per the orders of the Court, the subject mentioned property was vested with the society, namely, Addepalli Kandaswamy Chetty & Chenchu Venkatasubbu Guruvajamma Charities Association. These petitioners never objected to the above at the relevant period of time.
9(f) The subject property was encroached by several illegal occupants, and unless some steps were taken to evict the encroachers and develop the https://www.mhc.tn.gov.in/judis 13/21 O.P. No.673 of 2022 said property in such a way, so as to generate sufficient income for the society to maintain and carry out the object of the society, but nothing could be done. The income derived from the property was only a meager income of Rs.2,500/- which was insufficient to carry out the objects for the trust periodically due to advantage taken by unscrupulous elements of the locality who had encroached the property and had put up huts unathorisedly.
9(g) It is also seen from the typed set that a resolution was made on 25.01.2007 and the minutes of the meetings were recorded on 03.06.2008, whereby, the society has been empowered to sell the property to the extent of 7.54 grounds to the third respondent and the purchaser vide their letter dated 04.08.2008 showed their willingness to purchase the property on an 'as is, where is' condition and to evict all the encroachers at their cost and offered to construct a temple in the land retained by the society. So also pursuant to the resolution, dated 16.05.2007, the said resolution has been passed by the executive committee of the society to sell the portion of the land to the third respondent and a sale deed was executed on 14.08.2008.
9(h) As per the affidavit filed by the parties, it is seen that the sale consideration received by the society has been kept under the fixed deposit https://www.mhc.tn.gov.in/judis 14/21 O.P. No.673 of 2022 in the name of the society and it is being used as a corpus fund to carry out the objects of the trust. The interest had also been credited to the very same society account. As per the counter, the balance land of about 4.74 grounds of land, a temple and mandapam, was constructed and is presently there and being well maintained for performing poojas and other dharma kainkaryam as desired by the founder trustee.
9(i) On perusal of the order dated 30.01.2008 passed in O.P.No.31 of 2008 by the Principal Judge, City Civil Court, Chennai, I find that by virtue of the clause contained in the trust deed and also by virtue of Section 9(b) of the Charitable and Religious Trust Act, the trust was converted into a society.
9(j) Thereafter, necessary applications have been filed, meetings are held, resolutions are passed and property has been sold to the third respondent, subsequently, changing as respondents 5 to 9. It remains to be stated that vesting of the property in favour of the society is as per the order of the competent civil Court in O.P.No.31 of 2008, dated 30.01.2008. Hence, it is legal and valid and the sale transactions are in order. There are no anomalies in the sale.
https://www.mhc.tn.gov.in/judis 15/21 O.P. No.673 of 2022 9(k) In view of the order passed by the competent civil Court under the trust Act and the order passed by the competent civil Court in O.P.No.31 of 2008, the respondents 1 and 2, who are the trusts at the time of formation, are no longer a trust and it has become society and hence, I find that the present application filed under Section 9 of the Charitable and Religious Trusts Act is not maintainable.
9(l) On perusal of the counter filed by the respondents as narrated above, I find that from 30.01.2008, the trust has become society and is being declared so by the competent civil Court and hence, I have no hesitation in mind to hold that the petition is not maintainable under the Charitable and Religious Trust Act.
10(a) In view of para Nos.5 and 11 of the trust deed, after conversion of trust into society, they are carrying out the object of the trust deed and hence, the object for which initially the trust was created is being maintained by the society as extracted supra and the wish of the founder trustee to construct a temple, mandapam and perform pooja, dharma kainkaryam is being done on 4.74 grounds of land.
https://www.mhc.tn.gov.in/judis 16/21 O.P. No.673 of 2022 10(b)Hence, I find that the petitioners have suppressed the material fact of existence of the temple and mandapam and that the poojas are taking place as per the wishes of founder trustee and hence, I find that there is no violation as alleged by the petitioners.
11(a) It is also seen that the present owners of the land in question have purchased it pursuant to the resolution passed in the society for valuable consideration and after following the objects stated in the trust deed, the same has been executed. Thereafter, revenue records are duly mutated in their name and they are in possession and enjoyment of the same. In respect of the balance of land, measuring 4.74 grounds, temple and mandpam are in existence and there is a separate passage to reach the temple exclusively used for the real worshippers of the deity and hence, I find that the petitioners have purposely suppressed the material fact of the existence of the temple, mandapam, performance of poojas and dharma kainkaryam being carried out in 4.74 grounds.
11(b) Besides, the sale profits that are subject matter of this case are duly deposited in the accounts of the trust and this is being utilized for the https://www.mhc.tn.gov.in/judis 17/21 O.P. No.673 of 2022 object mentioned by the founder trustee. Hence, I find that both on facts as well as on law, the present petition is not maintainable and this Court has also found that the action of the respondents 1 and 2 in selling the property to the third respondent, subsequent sale to the fifth respondent and subsequent sales to respondents 6 to 8, are in order and legally valid.
11(c) On conclusion of the argument of the learned counsel for the respondents, has produced the copy of the order passed by this Court in original side appeal in O.S.A.No.63 of 1990, wherein, the first plaintiff herein is declared as insolvent in I.P.No.46 of 1989, the same is confirmed by the Hon'ble Division Bench of this Court and hence, the same was put to the learned counsel for the first plaintiff who was declared as insolvent and also called upon the learned counsel for the first plaintiff, if he was discharged from insolvency, he can produce the order copy thereto and subsequent time was granted and no such document has been filed by the first plaintiff assumes significance.
12.In view of the discussions stated supra, the petition is not maintainable under the Charitable and Religious Trusts Act and eventhough the said trust, which is now converted as a society, has followed the legal https://www.mhc.tn.gov.in/judis 18/21 O.P. No.673 of 2022 procedures and thereafter, effected the sale and object of the founder trustee as enumerated in the trust deed, which has also been affirmed, I find that there is no error in the administration of the original trust, which is now society. Hence, I find no merits both on the facts as well as on law and accordingly, O.P.No.673 of 2022 is dismissed.
13.In view of the above, O.A.No.702 of 2022 is also closed.
06.12.2024 Index :Yes/No sji APPENDIX Petitioner's witness:
P.W.1 – Mr.Etheesh Guptha Petitioner's exhibits:
Exhibits Date Documents
A1 20.03.2007 Certification of registration of societies
A2 05.03.2007 Memorandum of association
A3 02.11.1915 Deed of trust
A4 25.01.2007 Resolution of the Trust
A5 28.02.2008 Consent affidavit of Vijalakshmi
A6 28.02.2008 Consent affidavit of T.V.Somasekar
A7 28.02.2008 Consent affidavit of Sathyapriya
A8 28.02.2008 Consent affidavit of Manikandeswaran
A9 28.02.2008 Consent affidavit of K.S.Meena
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Exhibits Date Documents
A10 28.02.2008 Consent affidavit of K.P.Sridhar
A11 28.02.2008 Consent affidavit of Sudarshini
A12 28.02.2008 Consent affidavit of Pandurangan
A13 28.02.2008 Consent affidavit of Chinni Krishnan A14 28.02.2008 Consent affidavit of Sumathi A15 28.02.2008 Consent affidavit of Srinivasalu A16 28.02.2008 Consent affidavit of Sathyasree A17 28.02.2008 Consent affidavit of Sujatha A18 28.02.2008 Consent affidavit of Gopalakrishnan A19 28.02.2008 Consent affidavit of Sheela Rani A20 28.02.2008 Consent affidavit of Srinivasa Babu A21 28.02.2008 Consent affidavit of Nagalakshmi A22 28.02.2008 Consent affidavit of Ganesh Babu A23 28.02.2008 Consent affidavit of Krishnaveni A24 28.02.2008 Consent affidavit of Parameswari A25 28.02.2008 Consent affidavit of Jeyakumar A26 28.02.2008 Consent affidavit of Sreelakshmi A27 28.02.2008 Consent affidavit of Etheesh Gupta, P.W.1 A28 28.02.2008 Consent affidavit of Nagarajan 06.12.2024 sji https://www.mhc.tn.gov.in/judis 20/21 O.P. No.673 of 2022 RMT.TEEKAA RAMAN, J.
sji Order Made In O.P. No.673 of 2022 and O.A.No.702 of 2022 06.12.2024 https://www.mhc.tn.gov.in/judis 21/21