Madras High Court
S.A.Rasheed vs R.K.Kamalakaran on 2 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.Nos.727 of 1999, 699 of 1999 and 31 of 2000 A.S.No.727 of 1999: S.A.Rasheed ... Appellant/13th Defendant Vs 1.R.K.Kamalakaran 2.R.H.Krishnamoorthy 3.K.S.Ramachari 4.K.A.Lingaram 5.K.A.Sethuram 6.K.A.Athmaram 7.T.S.Ramachari (died) 8.T.S.Raghavan 9.T.S.Surendran 10.Proprietor, Alankar Silk Palace, West Car Street, Chidambaram, South Arcot District. 11.Dharmarajan 12.K.A.Mahanram 13.S.C.Parvathavardini 14.T.C.Sabitha 15.T.R.Kannan 16.T.R.Ramkumar ... Respondents/Defendants (R13 to R16 impleaded as the LRs of the 7th respondent vide order of this Court dated 19.12.2007 made in M.P.No.3 of 2007 in A.S.No.727 of 1999.) Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 08.03.1999 in O.S.No.610 of 1987 on the file of the I Additional Subordinate Court, Madurai. !For Appellant ... Mr.N.C.Ashok Kuamr ^For Respondents ... Mr.C.Godwin for R.1 Mr.M.S.Suresh Kumar for R.13 to R.16 A.S.No.699 of 1999: #Dharmarajan ... Appellant/11th Defendant Vs $1.R.K.Kamalakaran 2.R.H.Krishnamoorthy 3.K.S.Ramachari 4.K.A.Lingaram 5.K.A.Sethuram 6.K.A.Athmaram 7.T.S.Ramachari (died) 8.T.S.Raghavan 9.T.S.Surendran 10.Proprietor, Alankar Silk Palace, West Car Street, Chidambaram, South Arcot District. 11.K.A.Mahanram 12.S.A.Rasheed 13.S.C.Parvathavardini 14.T.C.Sabitha 15.T.R.Kannan 16.T.R.Ramkumar ... Respondents/Defendants (R13 to R16 impleaded as the LRs of the 7th respondent vide order of this Court dated 04.12.2007 made in M.P.No.2 of 2007 in A.S.No.699 of 1999.) Prayer: Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 08.03.1999 in O.S.No.610 of 1987 on the file of the I Additional Subordinate Court, Madurai. !For Appellant ... Mr.T.V.Sivakumar ^For Respondents ... Mr.C.Godwin for R.1 Mr.M.S.Suresh Kumar for R.13 to R.16 A.S.No.31 of 2000: #1.K.A.Lingaram 2.K.A.Sethuram 3.K.A.Athmaram 4.K.A.Mohanram 5.T.S.Ramachari (died) 6.T.S.Raghavan 7.T.S.Surendran 8.S.C.Parvathavardini 9.T.C.Sabitha 10.T.R.Kannan 11.T.R.Ramkumar ... Appellants (Appellants 8 to 11 impleaded as LRs of the deceased 5th Appellant vide memo filed by Appellants 8 to 11 dated 12.12.2007.) Vs $1.R.K.Kamalakaran 2.R.H.Krishnamoorthy 3.K.S.Ramachari 4.Proprietor, Alankar Silk Palace, West Car Street, Chidambaram, South Arcot District. 5.Dharmarajan 6.SA.Rasheed 7.P.Perumal 8.G.Venkatesan 9.G.Duraipandian 10.P.K.Mahendran 11.Dhanalakshmi Bank, represented by its Manager, 216-A,Nethaji Road, Madurai -1. ... Respondents/Defendants (R7 to R11 impleaded as per order of the Court dated 14.12.2005 in C.M.P.(MD)No.5620 of 2005 in A.S.No.31 of 2000) Prayer Appeal filed under Section 96 of the Code of Civil Procedure, against the judgment and decree dated 08.03.1999 in O.S.No.610 of 1987 on the file of the I Additional Subordinate Court, Madurai. !For Appellants ... Mr.M.S.Suresh Kumar ^For Respondents ... Mr.C.Godwin for R.1 :COMMON JUDGMENT
A.S.Nos.727 of 1999, 699 of 1999 and 31 of 2000 have been filed by (i) the defendant No.13, (ii) the defendant No.11 and (iii) the defendant Nos.4 to 9 and 12 respectively, as against the judgment and decree dated 08.03.1999 in O.S.No.610 of 1987 on the file of the I Additional Subordinate Court, Madurai.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. The gist and kernel, the pith and marrow of the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
(i) The plaintiff is the son of the first defendant and grandson of the deceased N.Hari Govinda Iyer. The suit property described in the schedule of the plaint originally belonged to the said Hari Govinda Iyer who executed the trust deed, Ex.A.1 on 09.03.1931, dedicating the first item of the suit property as Choultry so as to enable his own caste people to stay there for three to five days during the festival days relating to Arudhra Dharisanam concerning Lord Nataraja of Chidambaram temple. The income from item Nos.2, 3 and 4 of the suit properties were expected to be used for providing food to such pilgrims staying in the first item of the suit property during Arudhra festival in Chidambaram temple during the month of Margazhi every year and as per the trust deed, the suit properties should not be alienated and the remaining income should be used for purchasing new properties so as to annex those properties also with the suit properties for carrying out such charity.
(ii) Hari Govinda Iyer during his life time, carried out the purpose of trust and after his death, his adopted son the first defendant acted as the Managing Trustee. However, the first defendant sold away the trust properties quite antithetical to the terms and conditions of the trust deed. The plaintiff, became the trustee after attaining majority and he came to know about such alienations made by the first defendant. The defendants 2 to 10 are the purchasers of the suit properties after knowing that those are trust properties which should not have been the subject matter of sale or purchase.
At present, there are no properties to perform charity as contemplated under the trust deed. Hence, the charity got stopped. The plaintiff therefore filed the suit in his capacity as the trustee seeking the following reliefs:
(a) to declare that the suit properties belongs to the trust as per trust deed dated 09.03.1931 executed by Sri.Hari Govinda Iyer as per the order in I.A.No.592 of 1991 dated 07.11.1991 removing the first defendant from the office of the trusteeship and consequence thereof and consequently direct the defendants 2 to 10 to handover the possession of the suit properties without any let or hindrance to the plaintiff;
(b) to direct the defendants to pay the costs of the suit to the plaintiff."
(emphasis supplied.)
4. The third defendant filed the written statement with the averments denying and disputing, challenging and gainsaying the averments/allegations in the plaint thus:
The plaintiff is not a trustee at all and for that matter, he cannot assume himself as trustee when his father, the first defendant who is the Managing Trustee is alive. The other legal heirs of the original trustee as per the trust deed, Ex.A.1, were not added in the suit and as such, the suit is bad for non-joinder of necessary parties. The plaintiff is having no locus standi to file the suit and claim possession. The third defendant purchased the suit item Nos.3 as per Ex.B.2, the sale deed dated 03.02.1944, from the first defendant and the mother of the first defendant, Seethammal, the then Managing Trustees of the Trust. From out of the sale consideration of the item Nos.3 and 4, a pacca terraced property was purchased by them. Accordingly, the third defendant prayed for the dismissal of the suit.
5. The defendants 4 to 6 filed the written statement almost reiterating contentions of the third defendant relating to non-maintainability of the suit; however, they would also contend that the item No.3 was purchased by them under two registered sale deeds dated 15.09.1980 in Ex.B.8 and B.9, for valid consideration from K.R.Dhanalakshmi Ammal and K.R.Ramdoss. Thereafter, it was demolished and a new building erected in its place. In fact, the item No.3 was purchased by the vendors of D.4 to D.6 who earlier purchased it in a Court auction sale held on 25.02.1963 and confirmed on 10.04.1963 in O.S.E.P.No.155 of 1962 in O.S.No.7 of 1962, on the file of the Sub Court, Madurai and had taken physical delivery of the same in O.S.E.A.No.496 of 1963. Accordingly, they prayed for the dismissal of the suit.
6. The defendants 7 to 9 filed the written statement reiterating the stand relating to the non-maintainability of the suit. Item No.4 of the suit property was purchased by T.L.Sundararaja Iyer, the father of the defendants 7 to 9 by a registered sale deed dated 03.02.1944. Accordingly, they prayed for the dismissal of the suit.
7. The tenth defendant filed the written statement reiterating the pleas already raised by the other defendants relating to the non-maintainability of the suit and would further state thus:
The first item of the suit property was purchased by P.A.Sheik Dawood on 04.09.1968 for valid consideration from the first defendant and he has been in possession and enjoyment till his death in the year 1975. Thereafter, his legal heir S.A.Rajeeth inherited the property and he has been in possession and enjoyment of the same. The tenth defendant, V.A.Abdul Rahiman is one of the partners of Alangar Silk Palace and he took possession of it from S.A.Rajeeth who mortgaged it on 04.01.1979 in favour of the tenth defendant as per the registered mortgage deed dated 04.01.1979. Accordingly, he prayed for the dismissal of the suit.
8. The eleventh defendant who is the son of the second defendant filed the written statement reiterating the stand of the other defendants relating to the non-maintainability of the suit and would add further thus:
Item No.2 of the suit property was purchased from T.L.R.Narasimhachari by the second defendant as per the sale deed dated 01.09.1971 which was preceded by the agreement to sell dated 21.06.1971. The vendor T.L.R.Narasimhachari in fact purchased it originally from the first defendant as per sale deed dated 17.10.1955. In fact, as per exchange deed dated 30.09.1955, the said item No.2 of the suit property was exchanged for his own property situated at No.44, Lakshmipuram Cross Street, Madurai, for obtaining better rental income. The defendants 2 and 11 acquired prescriptive title also over the said item of the property. Accordingly, he prayed for the dismissal of the suit.
9. The twelfth defendant filed the written statement reiterating the grounds already relied on by the other defendants and further would state thus:
The suit is barred by limitation. The said item No.3 of the suit property was sold to K.R.Dhanalakshmi as per sale deed dated 30.09.1970 as already referred to supra, and she mortgaged the same to M.N.Ananda Rao by a registered mortgage deed dated 30.09.1970 and redeemed the property on 07.06.1980 and subsequently, she had settled a portion of the suit item No.3 of the suit property to her son K.R.Ramdoss under a registered settlement deed dated 25.08.1980. The said item No.3 of the suit property was purchased by the twelfth defendant and the defendants 4 to 6, under two registered sale deeds dated 15.09.1980 from K.R.Dhanalakshmi and K.R.Ramdoss respectively.
Accordingly, he prayed for the dismissal of the suit.
10. The thirteenth defendant filed the written statement almost reiterating the grounds raised by the other defendants relating to the non- maintainability of the suit and would further add thus:
The said P.A.Sheik Dawood is the purchaser of the first item of the suit property from the first defendant and after the death of P.A.Sheik Dawood, in the year 1973, the defendant No.13, inherited the property and has been in possession and enjoyment of the suit property. He mortgaged it in favour of the defendant No.10 and redeemed the same. The defendant No.13 is in possession of it. The suit is barred by limitation. Accordingly, he prayed for the dismissal of the suit.
11. The defendants 4, 5, 7 and 9 filed additional written statements which was adopted by the defendants 6 and 8 with the averments thus:
Item Nos.2 to 4 of the suit properties were not treated as trust properties even as per the terms and conditions of the trust deed. The suit is bad for want of declaration for setting aside the deed of exchange dated 30.09.1955.
12. The trial Court framed as many as thirty issues including additional issues.
13. During trial, on the side of the plaintiff, the plaintiff examined himself as P.W.1 along with P.W.2 and Exs.A.1 to A.12 were marked and on the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B.1 to B.21 were marked.
14. Ultimately, the trial Court decreed the suit.
15. Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the eleventh defendant filed A.S.No.699 of 1999 on the following main grounds among others:
The trial Court failed to consider Ex.A.1, in the proper perspective. It has wrongly held that all the suit properties are trust properties. The trial Court after holding that the trust created is for the benefit of the members of the founder's family and his caste people namely Sourastra Brahmins, wrongly held that the item Nos.2 to 4 happened to be the trust properties under Ex.A.1. At the most, item No.1 alone could be held to be the trust property and not the other properties. The Indian Trust Act has not been properly applied by the trial Court. The trial Court has not analysed the documents properly. Without adhering to the pleadings of the parties, the trial Court of its own accord, assumed as though there were fraud, misrepresentation and collusion between the first defendant and the subsequent purchasers. The second defendant, the father of the defendant No.11, purchased the item No.2 after his vendors having acquired prescriptive title over the property and this aspect was not considered by the Court below. The trial Court has also failed to note that the suit is barred by limitation. The trial Court failed to consider that the plaintiff was born in the year 1965 and became major in the year 1984 and that the suit was filed only on 08.09.1987, long after the expiry of the period of limitation. The suit was not also properly valued and the trial Court has not at all considered it in proper perspective. Accordingly, the appellant prayed for setting aside the judgment and decree of the trial Court.
16. The defendant No.13, being aggrieved by the judgment and decree of the trial Court filed A.S.No.727 of 1999, on the following main grounds among others:
The trial Court failed to note that the trust deed Ex.A.1 was not acted upon and did not come into force at all. The plaintiff cannot be treated as a beneficiary, but the trial Court decreed the suit as though he is beneficiary. The suit is also barred by limitation. The evidence of P.W.2, the maternal uncle of the plaintiff, should have been disbelieved by the trial Court. The suit framed is not in accordance with law and the suit was not also properly valued as per Section 30 of the Tamil Nadu Court Fees and Suit Valuation Act.
17. The defendants 4 to 9 and 12, being dissatisfied with the judgment and decree of the trial Court, filed A.S.No.31 of 2000 on the following main grounds among others:
The trial Court should have dismissed the suit on the sole ground that Ex.A.1 was not acted upon. The trial Court has not taken into account the exchange of properties involved in the matter and there was no embargo for exchange of properties. Ex.B.3, the deed of exchange, was more than thirty years old and its genuineness should have been presumed by the trial Court. The Court auction sale relating to item No.3 has not been considered by the trial Court at all and such sale was not at all affected by Section 63 of the Indian Trust Act The properties involved in the matter were not trust properties. The suit was not properly valued. Accordingly, they prayed for setting aside the judgment and decree of the trial Court and for dismissal of the suit.
18. The points for consideration are:
(i) Whether under Ex.A.1, a trust was created by the said Hari Govinda Iyer relating to the four items of the suit properties described in the schedule of the plaint? and if so, whether it is a private trust or a public trust?
(ii) Whether the plaintiff had locus standi to file the suit? if so, under what capacity?
(iii) Whether the alienations of the suit properties referred to in the pleadings by the first defendant and his mother Seethammal, should be ignored and whether the subsequent alienations should also be ignored?
(iv) Whether the trial Court was right in disregarding the exchanges of properties referred to in the pleadings?
(v) Whether the suit was barred by limitation and whether the suit was not properly valued?
(vi) Whether there is any infirmity in the judgment and decree of the trial Court?
Point No:(i)
19. A re'sume' of facts absolutely necessary and germane for the disposal of these appeals would run thus:
The unassailable facts are that the plaintiff is the son of the first defendant who is alive. As per Ex.A.1, the trust deed dated 09.03.1931, the said Hari Govinda Iyer created a trust intending that the first item of the suit property which is a house situated in Chidambaram should serve as a place for his own caste people namely Sourastra Brahmin to stay there for three to five days while Arudhra Dharisanam festival was going on in the Nataraja temple every year.
20. It was the intention of the Hari Govinda Iyer that the income from the item Nos.2, 3 and 4 situated in Madurai, should be utilised partly, for providing food to such pilgrims during those days; and for meeting the maintenance charges including paying salary for the watchman and the remaining income should be spent for purchasing new properties so as to make additions to the trust properties. He nominated seven trustees of his caste namely Sourastra Brahmins including his adopted son the first defendant, his wife Seethammal and his brother, who all should succeed him and those trustees descendants were expected to take up the trusteeship after the death of the respective trustees.
21. Incontrovertibly, as revealed from the evidence, the first defendant happened to be the adopted son of Hari Govinda Iyer and the said Seethammal, happened to be his widow. In Ex.A.1, he appointed the following persons as his trustees after his death:
"1.N.Ramachari, 2. A.Seethammal, 3. A.Krishnamoorthy, 4. Devanthira Iyer, 5. Narasimma Iyer, 6. Gopala Iyer and 7. Giayeri Iyer."
22. It is therefore crystal clear that he intended the said named seven persons as his trustees and after the death of anyone of the trustees, their descendants should act as trustee.
23. At this juncture, it is worthwhile to highlight that the plaintiff figured himself as a trustee and filed the suit. An excerpt from the plaint, would run thus:
"2. The plaintiff is the son of the Ist defendant and the grandson of N.Hari Govinda Iyer to conduct a charity at the time of Arudhra Dharisanam of Sri Nadarajar Temple for his community people. Now the plaintiff is looking after the charity."
(emphasis added)
24. It is therefore glaringly clear that even during the life time of the first defendant, the Managing trustee under Ex.A.1, the son of the first defendant, the plaintiff herein claiming himself as a trustee, filed the suit. The above narration of facts would demonstrate that the plaintiff could claim himself as a trustee only after the death of his father namely the first defendant herein and not during his life time. It is startling to note that in the plaint itself, the plaintiff posed himself as a "trustee". In the prayer column, his prayer is to declare him as a trustee after removing the first defendant from the trusteeship. The plaintiff cannot approbate and reprobate, blow hot and cold. As per his own document, Ex.A.1, which he relied on, he should be non-suited and on that ground itself, the suit ought to have been dismissed by the trial Court. However, the trial Court curiously enough without adverting to the actual legal issue involved in this case, simply held that the plaintiff could be treated as a beneficiary under the trust and on that basis, the suit could be decreed.
25. The learned Counsel appearing for the appellants in unison would contend that the trial Court throwing to winds the trite proposition of law that any amount of evidence without pleadings should be eschewed. The trial Court simply presumed and assumed as though, the plaintiff filed the suit in his capacity as a beneficiary and decreed the suit erroneously.
26. The indubitable facts are that the plaintiff was born during the year 1966, but the suit was filed on 08.09.1987, long after expiry of the limitation period which would be discussed infra in detail. Admittedly, there are other trustees alive as per Ex.A.1 and they have not been added as the defendants and among the trustees, only the first defendant alone was added as the Managing Trustee. As such, the suit is bad for non-joinder of necessary parties. All the defendants have raised this point specifically for nothing but to be ignored erroneously by the trial Court without any valid reasons.
27. The trial Court gave a finding that the trust is a private one as per Ex.A.1 without adding further that it is a private religious trust. The reasoning given for decreeing the suit is totally untenable. Ex.A.1 would contemplate as under:
"kJiu, byf&pkpg[uk; 3tJ bjUtpypUf;Fk; uhkr;re;jpuh, ehuhazrhkp ma;ah; Fkhuh; gpuhkz $hjp tptrha $Ptdk; mhpBfhtpe;ja;ah; vGjpitj;j jh;krhrdk; vd;dbtd;why;:
(1) vd; Rahh;$pjkha; rk;ghj;jpak; bra;j gzj;jpypUe;J g{Byhf ifyhrkhfpa rpjk;gu Br&j;jpYk; bey;Yf;filaj; bjUtpy; Blhh; 153 eph; kid tPl;il vd; Bghpy;
ehd; U.3000-00 f;F 1926k; tU&k; ork;gh; khjk; 1 Bjjpapy; fpiuaj;Jf;F thA;fp i& fpiuak; thA;fpd Bjjp Kjy; i& kid tPl;il jh;k rj;jpukhf Vw;gLj;jp jh;kj;Jf;F cgBahfg;gLj;jpapUf;fpBwd;.
i& rpjk;gu Br&j;jpuj;jpy; ek; Ra$hjp gpukhzh;fSf;F rj;jpukpy;yhj epkpj;jpak; i& kid tPlhdJ fpiuaj;Jf;F thA;fp rj;jpukhf Vw;gLj;jp jh;kj;Jf;F tplg;gl;oUf;fpwJ.
(2) i& kidtPL rj;jpuj;ij ek; Ra$hjp gpuhkz cj;jk ahj;jpiu thrpfs; i& rj;jpuj;jpy; 3 KZ ehs; my;yJ 5 Ie;J ehs; tiu jA;fp i& Br&j;jpuj;jpy; eluh$ !;thkpfis jhprpj;Jg; BghfBtz;oaJ.
(3) i& rj;jpuj;jpy; tpsf;F itj;J fhty;fhj;J ge;Bjhg!;J bra;tjw;fhf ek; gpuhkzh;fspy; xUtiu epakpf;f Btz;oaJ.
(4) i& rpjk;gu Br&j;jpuj;jpy; eluh$ !;thkpfis Muj;jpuh jhprdj;jd;W i&* jh;krj;jpuj;jpy; jA;fpapUf;Fk; ek; gpuhkz gf;j $da;fSf;F md;d rkhuhjid elj;jpf;bfhz;L tUfpBwd;.
(5) i& rj;jpuk; thA;fpa BjjpapypUe;Jk; ndp BkYk; ePLsp fhyk; i& jh;kk; elj;jp itg;gjw;fhf ne;j jh;k rhrdk; vGjp itj;jpUf;fpBwd;. (6) i& rj;jpuj;Jf;F vd;dhy; Bekpf;fg;gl;oUf;fpw ou!;ofspypUe;J vd; Ma[Rf;Fg; gpd; i& jh;kk; elj;jp tuBtz;oaJ. (7) vdf;F brhe;jkhd kJiuapYs;s gp broa{ypy; fz;l U.4000-0-0 ehyhapuk; kjpg;g[s;s kidtPLfspd; tUk;goapypUe;J i& kidtPLfspd; Kdprpgy; thpa[k; hpg;Bgh; tifawh rpyt[fSk; bra;tJ Bghf kPj tUk;goapypUe;J i& jh;kA;fis elj;jp tuBtz;oaJ.
(8) i& V broa{ypy; fz;l rj;jpukhdJ i&*jh;kj;Jf;F ghj;jpaBk jtpu vdf;fhtJ, vd; thhpRfSf;fhtJ, vd;dhy; Bekpf;fg;gl;l ou!;ofSf;fhtJ, mth;fs; thhpRfSf;fhtJ mth;fs; ghj;jpaij mile;jth;fSf;fhtJ vt;tifg;gl;l guhjPdKk; bra;a mjpfhukpy;iy. i& brhj;ij Btbu vt;tifg;gl;l jh;kj;Jf;Fk; Vw;gLj;jt[k; TlhJ.
(9) i& V broa{ypy; fz;l rj;jpuj;jpy; ng;BghjpUf;fpw fl;olA;fSk; ndp thA;fg;gLk; fl;olA;fSk; ndp mJfspy; tph;j;jpailaf; Toa fl;olA;fSk; i& jh;kj;Jf;F ghj;jpaBk jtpu vdf;fhtJ, vd; thhpRfSf;fhtJ ou!;ofSf;fhtJ mth;fs; thhpRfSf;fhtJ ahbjhU guhjPdKk; bra;a mjpfhukpy;iy."
28. It is therefore crystal clear that the said Hari Govinda Iyer intended that the first item of the suit properties should be used for his own caste people which constituted a small sub-sect in Tamil Nadu namely Sourastra Brahmin for staying only for three to five days so as to enable them to attend Arudhra Dharisanam festival which is being conducted in Chidambaram Natarajar Temple. On other days, even those Sourastra Brahmins cannot stay for any other purpose. It is therefore obvious and apparent that the pilgrims of the said group, for the purpose of that religious festival alone could stay for three to five days in a year in that house.
29. The learned Counsel for the plaintiff would correctly argue that other than the restricted group of pilgrims, the general public cannot stay in that house and in such a case, the said trust could be at the most a private religious trust and not a public trust and the defendants cannot be heard to contend that it is a public trust.
30. The learned Counsel for the plaintiff would unconvincingly argue as though the Court could countenance that as per Ex.A.1, the trust could be treated as a "Charitable Endowment" created within the meaning of the Tamil Nadu Hindu Religious and Chartiable Endowments Act, 1959 and that the Limitation Act would not be applicable in view of Section 109 of the said Act.
31. Section 6(5) of the H.R & C.E Act, defines the "charitable endowments"
thus:
"Section.6(5): "charitable endowments" means all property given or endowed for the benefit of, or used as of right by, the Hindu or the Jain community or any section thereof, for the support or maintenance of objects of utility to the said community or section, such as rest-houses, choultries, patasalas, schools and colleges, houses for feeding the poor and institutions for the advancement of education, medical relief and public health or other objects of a like nature; and includes the institution concerned;" (emphasis supplied.)
32. It is therefore clear from the mere reading of the aforesaid definition that the endowment if at all for the benefit of Hindus in general or of a section thereof, it could be taken as the one covered by the Tamil Nadu Hindu Religious and Charitable Endowments Act. Here, only the said sub-sect of Sourastra Brahmins alone could stay for a few days during the said festival as observed supra and as such, it cannot be taken a charitable endowment within the meaning of the said Act and consequently, Section 109 of the Limitation Act could not be pressed into service. Once, it is held as a private religious trust, then the provisions of the Indian Trust Act 1888 would not be applicable as Indian Trust Act, 1888 is applicable to mere private trusts of non-religious in nature.
33. The trial Court oblivious of the very Section 1 of the Indian Trust Act, simply held as though the trust created under Ex.A.1 is a private trust having no nexus with religiosity. A mere perusal of Ex.A.1 as highlighted supra would demonstrate that the said executant of Ex.A.1 clearly contemplated that "his own caste" people presumably as revealed by the evidence, Sourastra Brahmins alone should use the first item of the suit properties only for three to five days during the month of Margazhi and that too, during the celebration of the festival of Arudhra Dharisanam of Sri Natarajar Temple in Chidambaram.
34. It is ex facie and prima facie clear that even his own caste people cannot stay as per the intention of the executant in that first item of the suit properties, on days other than, during Margazhi for three to five days for attending the said festival. The pre-dominant intention of the executant is that his own caste people for the purpose of participating in the said religious function should use it as they did not have had adequate accommodation in Chidambaram.
35. It is therefore crystal clear that for a private limited number of sub-sect of Sourastra Brahmin for religious purpose, the first item of the suit properties was dedicated by the executant of Ex.A.1. In such a case, it is not a mere trust contemplated under the Indian Trust Act, which excludes clearly the religious trusts, even private religious trusts. Section 1 of the Indian Trust Act could be reproduced hereunder:
"Sec.1. Short title, commencement.- This Act may be called "The Indian Trusts Act 1882" and it shall come into force on the first day of March, 1882. Local extent.- It extends to the whole of India except the State of Jammu and Kashmir, the Andaman and Nicobar Islands; but the Central Government may, from time to time, by notification in the Official Gazette, extend it to the Andaman and Nicobar Islands or to any part thereof.
Savings.- But nothing herein contained affects the rules of Muhammadan Law as to Waqf, or the mutual relations of the members of an undivided family as determined by customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the second Chapter of this Act applies to trusts created before the said day."
36. There are catena of decisions under Section 1 of the Act that the Indian Trust Act does not cover private religious trusts. The learned Counsel for the appellants cited the decision in Deoki Nandan v. Murlidhar reported n A.I.R 1957 SC 133. An excerpt from it, would run thus:
"5. It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, Fifteenth Edition, pp.1516:
"By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes and indeed public trusts and charitable trusts may also be considered in general as synonymous expression. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained....".
Vide also the observations of Mitter,J. in Haji Mahammad Nabi Shirazi v. Province of Bengal, I.L.R.(1942) 1 Cal.211 at pp.227.228:(A.I.R 1942 Cal.343 at p.349) (B). Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof."
37. Applying the aforesaid dictum, it is clear that the trust as contemplated is a private trust.
38. The learned Counsel for the appellants in A.S.No.31 of 2000 cited the decision in Senthilvel Pillai v. Kulandaivel Pillai reported in 1983 L.W. 472. An excerpt from it, would run thus:
"The natural inference to be made from such conduct is that the trust was to the knowledge of all the members of the family no longer in existence, a result that could and should have been brought about only by the consensus of the members of the family."
39. The trial Court without adverting to Section 1 of the Act, simply assumed and presumed as though the Indian Trust Act is applicable and accordingly, dealt with the matter.
40. It is obvious and apparent that in view of the discussion supra, the trust as contemplated under Ex.A.1 cannot be a public religious trust endowment and as such, the Tamil Nadu Hindu Religious and Charitable Endowments Act, is not applicable.
Point Nos:(ii) to (iv)
41. Even for argument sake, it is taken that the Indian Trust Act is applicable to this case, the trial Court misapplied the provisions. According to the various provisions of the Indian Trust Act, the plaintiff cannot succeed in proving his case.
42. At this juncture, I would like to agree with the submission made by Mr.T.V.Sivakumar, the learned Counsel for the appellant in A.S.No.699 of 1999, who would highlight that even as per Section 77 of Indian Trust Act, in the facts and circumstances of the case, the said Trust has to be presumed to have got extinct. Section 77 of the Indian Trust Act is reproduced hereunder for ready reference:
"Section 77. Trust how extinguished.- A trust is extinguished-
(a) when its purpose is completely fulfilled; or
(b) when its purpose becomes unlawful; or
(c) when the fulfilment of its purpose becomes impossible by destruction of the trust property or otherwise; or
(d) when the trust, being revocable, is expressly revoked."
(emphasis added)
43. Section 77(c) of the act would contemplate that such a private trust would get extinguished if the trust property is no more. At this juncture, in the plaint, paragraph No.7 could be extracted hereunder for ready reference:
"7. The plaintiff has interest to maintain the charity which was done by his grandfather as per trust deed there is no property at present to do charity as per trust deed and so the charity is stopped. The worshippers of his community people are unable to stay at Chidambaram during festival of Arudhradharisanam and other important days. It created a hardship to his community people and also a peaceless mind of the plaintiff and his family members. The will and the intention of the original founder of the trust is spoiled."
(emphasis supplied).
44. It is therefore clear that the plaintiff himself admitted that in view of the alienation of the suit properties, the charity got stopped as a sequalae and it got extinguished. In such a case, the plaintiff had no locus standi at all, to file the suit. As revealed by the above narration of facts in the written statement, which are borne by the documents marked during trial, even as early as in the year 1944 onwards, the suit properties were started to be sold and ultimately, during the year 1968 as revealed by Ex.A.2, sale deed dated 04.09.1968, the first item of the suit property wherein the charity has to be performed, was also sold. As such, ever since 1968, the very first item of the suit property was not in the possession of any of the trustees and that the charity was not performed. The suit was filed in the year 1987. In the meanwhile, as per Ex.A.1, even though there were lot of elderly and major beneficiaries who could have filed the suit, yet none filed any suit. The trustees as contemplated under Ex.A.1 and some of the deceased trustees' descendants also have not chosen to file any suit.
45. The first defendant is very much alive even now and it was he who along with his mother the wife of Hari Govinda Iyer, started selling the properties and sold all the properties and the first defendant also got two properties in exchange of the properties sold and used them for charity. In such a case, the plaintiff as a trustee is not at all justified in filing the suit.
46. Article 92 of the Limitation Act, is relied on by the learned Counsel for the plaintiff to canvass the point that within twelve years from the date of the plaintiff having come to know about the alienations, the suit was filed by him. Such an argument cannot be countenanced. Article 92 of the Limitation Act is extracted hereunder for ready reference:
Description of Suit Period of limitation Time from which period begins to run
92. To recover possession of immovable properpty conveyed or bequeathed in trust and afterwards transferred by the trustee for a valuable consideration.
Twelve years When the transfer becomes known to the plaintiff.
47. The mere reading of it, would show that the plaintiff calling himself as a trustee, cannot institute such a suit. Even as per his version, he cannot be the trustee and also as discussed supra and he never stated precisely on which date or in which year, he came to know about the alienations, for calculating the twelve years' period. The evidence on record would show that in the year 1968, so to say when he was two years old, the first item of the suit properties was sold by the plaintiff's father, the first defendant and the said Seethammal and in such a case, it is not known as to how, the suit has been filed in the year 1987. It is obvious, Article 92 of the Limitation Act, could not be pressed into service in this factual matrix. Here, all alienations are for consideration as set out supra and in such a case, Section 10 of the Limitation Act also cannot be pressed into service and it is quite obvious. If there are gratuitous alienations, then Section 10 of the Act would come in support of the plaintiff's case.
48. The trial Court relied on Sections 59, 60 and 63 of the Indian Trust Act and those provisions are reproduced hereunder for ready reference:
"Sec.59. Right to sue for execution of trust.- Where no trustees are appointed or all the trustees die, disclaim, or are discharged, or where, for any other reason the execution of a trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the trust, and the trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee."
"Sec.60. Right to proper trustees.- The beneficiary has a right subject to the provisions of the instrument of trust that the trust property shall be properly protected and held and administered by proper persons, and by a proper number of such persons.
Explanation.I.- The following are not proper persons within the meaning of this Section:-
A person domiciled abroad; an alien enemy; a person having an interest inconsistent with that of the beneficiary; a person in insolvent circumstances; and, unless the personal law of the beneficiary allows otherwise, a married woman and a minor.
Explanation.II.- When the administration of the trust involves the receipt and custody of money, the number of trustees should be two at least."
"Sec.63.- Following trust property into the hand of third persons.- Where trust property comes into the hands of a third person inconsistently with 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."
49. A mere perusal of those Sections would leave no doubt that the trial Court was wrong in interpreting those Sections and in applying them in the facts and circumstances of the case.
50. Section 59 of the Act, contemplates institution of suit by a beneficiary. Here, the plaintiff posed himself as a trustee and he wants to manage the trust, but the trial Court gave a finding as though he is a beneficiary. As such, without any pleadings, the trial Court's finding is untenable.
51. Section 60 of the Act contemplates once again a beneficiary and here, the plaintiff claims himself to be a trustee.
52. Section 63 of the Indian Trust Act is extracted hereunder for ready reference:
"63. Following trust property into the hands of third persons.- Where trust property comes into the hands of a third person inconsistently with 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. Into that into which it has been converted.- Where the trustee has disposed of trust property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust property."
53. Section 63 of the Act, contemplates the filing of the suit to get back the trust property and it also contemplates that if the trust property was converted into some other form, then it should be treated as trust property, but the trial Court miserably failed to take into consideration the fact that the sale considerations of item No.3 and 4 were used for purchasing a house property as set out supra. As per Ex.B.1, one other house was got exchanged for item No.2 of the suit property as found above. There is no whisper in the plaint as to what happened to those properties acquired by the first defendant from out of those alienations.
54. These are very important facts which were suppressed by the plaintiff. It is not as though the first defendant simply sold the properties and left the matter as such, but he acquired new properties for the charity.
55. If at all, the suit is a bona fide one and not a collusive case between the plaintiff and the first defendant, then the plaintiff should have detailed as to what happened to those properties which were acquired in lieu of item No.2, 3 and 4 of the suit properties.
56. It is therefore crystal clear that the suit is not bona fide one and accordingly, it deserves dismissal on that ground also.
57. The trial Court relied on Section 14 of the Indian Trust Act. Hence, it is just and necessary to extract hereunder Section 14 of the Act thus:
"Section 14. Trustee not to set up title adverse to beneficiary.- The trustee must not, for himself or another, set up or aid any title to the trust property adverse to the interest of the beneficiary."
58. A mere reading of it, would show that the trustee cannot plead prescriptive title and nowhere it is stated that third party purchaser who acquired the property for value would be affected by Section 14 of the Act.
59. At this juncture, Articles 94 and 96 of the Limitation Act could fruitfully be referred to and those are all extracted hereunder for ready reference:
Description of Suit Period of limitation Time from which period begins to run
94. To set aside a transfer of immovable property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment, made by a manager thereof for a valuable consideration.
Twelve years When the transfer becomes known to the plaintiff.
96. By the manager of a Hindu, Muslim or Buddhist religious or charitable endowment to recover possession of movable or immovable property comprised in the endowment which has been transferred by a previous manager for a valuable consideration.
Twelve years The date of death, resignation or removal of the transferor or the date of appointment of the plaintiff as manager of the endowment, whichever is later.
60. A mere perusal of the aforesaid provisions would clearly come in the way of the plaintiff seeking to recover possession, in view of the long lapse of time as found set out supra. As such, the trial Court oblivious of Section 77(c) of the Indian Trust Act and disregarding the actual purport of Articles 92, 94 and 96 of the Limitation Act, simply decreed the suit. The trial Court never considered the aspect of exchanges and it had not raised its accusative finger as against the plaintiff for having suppressed the properties which were obtained by the first defendant from out of the sale proceeds of the suit properties.
61. P.W.1 in his deposition would admit that he was born on 12.11.1965 and as such, he might have attained majority on 11.11.1983, but the suit was filed on 08.09.1987 even long after three years from the date of he having attained majority. This aspect has also been highlighted by the learned Counsel for the appellants in A.S.No.31 of 2000. P.W.1 in his deposition clearly stated that he never took steps to gather particulars about five other trustees as contemplated in Ex.A.1 or their descendants.
62. In fact, P.W.1 himself would come forward with a theory that P.W.1's mother knew about the details and it is not known as to why she had not filed any suit as a beneficiary questioning the alienations in the facts and circumstances of the case. P.W.1's mother was not even examined before the Court also and only P.W.2, N.S.Duvaragan, was examined and in the year 1997, when he was examined before the Court, he was 56 years old and he was a Sourastra Brahmin related to P.W.1 and once again, there is no explanation as to why P.W.2 had not filed any suit all along. As such, it is axiomatic and apparent that the plaintiff was not entitled to get the original suit decreed. Among the said Sourastra Brahmin families, by this time, lot of children might have been born and can it be construed that those children after attaining majority, could file suits of this nature. The answer is a knee-jerk emphatic 'No' and it is quite obvious for the reasons already adverted to above. As such, the suit filed is not at all maintainable.
63. There is no embargo as against the transferee of the private charitable endowment property to plead prescription that he acquired prescriptive title over it by enjoying it as owner with necessary animus for over twelve years openly, uninterruptedly and hostile to the original owner of such property as contemplated in the trust deed.
64. The item war discussion relating to the suit items would demonstrate as to how the transferees acquired prescriptive title.
65. The first item of the suit property was usufructually mortgaged in favour of P.A.Sheik Dawood, the father of the defendant No.13 as per Ex.A.2, dated 28.04.1966 and from that date onwards, Sheik Dawood started occupying that property and as such, it is crystal clear and apparent that ever since 28.04.1966, the said first item of the suit property could not have been used for charitable purposes as contemplated under Ex.A.1. Subsequently, the said P.A.Sheik Dawood purchased it as per Ex.A.2, the sale deed dated 04.09.1968. Therefore, it could rightly be held that charitable endowment itself ceased to be in existence with effect from 28.04.1966. Whereas the suit was filed only on 08.09.1987, after the long lapse of twelve years so to say, the period required for acquiring prescription and also long after three years after the plaintiff having attained majority considering his date of birth as per his own admission in his deposition that it was 12.11.1965. The trial Court erroneously without adverting to the deposition of P.W.1, held as though the plaintiff was born in the year 1966 under issue No.4. It is therefore crystal clear that the defendant No.13 and his father acquired prescriptive title over the first item of the suit property.
66. The second item of the suit property which happened to be the first item of the properties in the B Schedule of Ex.A.1, was intended to be sold in favour of one Narachimmachari by the first defendant as per Ex.B.13, dated 01.09.1955 and subsequently, it was sold as per the sale deed dated 17.10.1955 for valuable consideration of Rs.5,000/-, and in turn, the said Narachimmachari took the possession and enjoyment of the said item of the property and sold it in favour of the second defendant, the deceased Ganapathy Chettiar, the father of the defendant No.11, Dharmarajan, for a sum of Rs.30,000/-, as per Ex.B.9 which was preceded by Ex.B.15, the agreement to sell dated 21.06.1971. The crucial fact which was ignored by the trial Court is that before the first defendant alienating the second item in favour of Narasimhachari, the first defendant himself as per Ex.B.1 got the D.1's own house situated at Door No.44, Lakshimipuram Cross Street, Madurai, in exchange of second item as the second item lost its rental value for the reasons found detailed in the exchange deed itself and that first defendant wanted to augment the income for carrying out the charity effectively. It is therefore evident that the defendants 2 and 11 became legally the owners of the second item of the suit property. Additionally, for the very same reasons set out supra, relating to the first item of the suit property, the second item also became the exclusive property of the second defendant and his son the defendant No.11.
67. Item No.3 of the suit property is referred to as item No.2 in the B Schedule in Ex.A.1. The first defendant sold as per Ex.B.2, dated 03.02.1944 in favour of one Sundararaja Iyer. It is pertinent to note that in Ex.B.2, it is found set out that the suit property was being sold for the purpose of acquiring one other property for the trust, situated at Arapalayam, Madurai and accordingly, from out of the sale proceeds of the third item of the suit property, the said house property in Arapalayam, Madurai, was purchased under Ex.B.3,dated 04.02.1944.
68. It is therefore clear that item No.3 of the suit property was, in fact, adequately replaced by the said house situated at Arapalayam, Madurai as per Ex.B.3. In such a case, it is obvious that the said trust was in no way got affected by the sale of third item of the suit property which aspect was not at all considered by the trial Court.
69. It is also clear that under Ex.A.1, there was embargo for alienating the first item of the suit property, but there was no such embargo for alienating other properties. However, item Nos.2 and 3 of the suit properties were intended for being used for Dharmam at the first item of the suit property. However, for the reasons stated supra, the sale of both the first item as well as the other items of the suit properties, are not beyond the reach of the plaintiff.
70. The plaintiff for the reasons best known to him had not chosen to proceed as against the said house at Arapalayam, Madurai, which was acquired by the first defendant for the trust as per Ex.B.3 and also as against the house covered under Ex.B.1 which ushered in the house at Lakshmipuram. It is also pertinent to note that the item No.3 of the suit property, was enjoyed by Sundararajan's son Ramachari as he inherited the said item No.3 of the suit property, but in turn, he mortgaged it in favour of Ramasamy Chettiar whereupon the said mortgagee, Ramasamy Chettiar enforced the mortgage by instituting proceedings and ultimately, Ramasamy Chettiar purchased it in the Court auction sale. Subsequently, Ramasamy Chettiar sold that item in favour of the wife of the third defendant, K.R.Dhanalakshmi, who in turn settled a portion of item No.3 to his son K.R.Ramdoss. Thereafter, the said Dhanalakshmi sold her share in item No.3 as per Ex.B.8 dated 15.09.1980 in favour of the defendants 4, 5, 6 and 12. The other share i the item No.3 belonging to the said K.R.Ramdoss was sold by him as per Ex.B.9, dated 15.09.1980 in favour of the defendants 4, 5, 6 and 12.
71. Item No.4 of the suit properties which is referred to item No.3 in the B Schedule in Ex.A.1 was sold by the first defendant and the Seethammal in favour of Sundaraja Pillai as per Ex.B.4, dated 03.02.1944. After the death of Sundararaja Pillai, the said item devolved on the defendants 7, 8 and 9. As such, for the reasons already adverted to supra, the said item of the property is beyond the reach of the plaintiff.
72. Here, the existence of private religious trust is writ large from the analysis of the documents set out supra. Accordingly, the point is decided to the effect that in Ex.A.1, a private religious trust was contemplated, but it had become de funct and dormant and got extinct ultimately.
Point No:(v)
73. In view of the discussions supra, I hold that the plaintiff had no locus standi to file the suit; those alienations cannot be ignored; the plaintiff cannot question them as the trust itself got extinguished and that the suit is barred by limitation. Precisely, the suit is a misconceived one and the plaintiff has not properly framed it. The trial Court under issue Nos.5, 29 and 30, directed the plaintiff to pay additional Court fee in accordance with Section 28 of the Tamil Nadu Court Fees and Suit Valuation Act disagreeing with the valuation made by the plaintiff. The appellants could not substantiate as to how Section 30 of the Tamil Nadu Court Fees and Suit Valuation Act, could be invoked and that too when the plaintiff erroneously framed the suit suppressing various details by having his own fanciful averments.
Point No:(vi)
74. In this factual and legal matrix, it is obvious that the plaintiff at the instance of his father, the first defendant had chosen to simply file that vexatious original suit. Accordingly, the original suit is liable to be dismissed.
75. In the result, A.S.Nos.727 of 1999, 699 of 1999 and 31 of 2000 are allowed, setting aside the judgment and decree of the I Additional Subordinate Court, Madurai and the original suit filed by the plaintiff is dismissed. No costs.
rsb To The I Additional Subordinate Court, Madurai.