Madras High Court
N.S.Nanjundasamy(Died) vs V.Nanjundasamy on 25 April, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-4-2014 CORAM : THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN A.S.No.35 of 1995 and C.M.P.Nos.484 to 488 of 2011 and 708 and 832 of 2013 1. N.S.Nanjundasamy(died) 2. Kulandaivadivel .. Appellant/Defendant (2nd appellant brought on record as L.R. of the first appellant as per order made in C.M.P.Nos.486 to 488 of 2011 dated ..... ) Vs. 1. V.Nanjundasamy 2. K.Navaneethan 3. K.Veeramuthu 4. K.Selvaraj ... Respondents/Plaintiffs 1 to 4 Prayer:- Appeal Suit filed under Section 70(2) of Hindu Religious and Charitable Endowment Act against the judgment and decree in O.S.No.264 of 89, on the file of the Sub-Court, Udumalpet, dated 21.04.94. For Appellant : Mr.C.Chinnasamy Senior Counsel for Mrs.Hajamohideen Gisthi For Respondents : Mr.S.Kadarkarai for R.2 to R.4 * * * * * JUDGMENT
The defendant in O.S.No.264 of 1989, on the file of the Subordinate Court, Udumalpet is the appellant. The respondents filed a suit for framing a scheme pursuant to the partition deed dated 08.05.1886 and for directing the appellant/defendant to render accounts in respect of the income from the trust properties for three years preceding the file of the suit and directing the appellant/defendant to hand over the possession of the trust properties.
2. The case of the respondents/plaintiffs is as follows:
As per the partition deed dated 08.05.1886, the parties to the partition deed agreed to manage the temple situate in "A" schedule and the properties given to the temple and described in "B" Schedule and the properties and the temple were managed by the senior most member in the family of the parties to the partition deed aforementioned and the temple as well as the properties endowed for the temple were treated as the properties of the family of those persons, who were parties in the partition deed dated 08.05.1886. The first plaintiff/first respondent is the son of Velusamy Gounder and the plaintiffs 2 to 4 are the grandsons of Velusamy Gounder and the defendant/appellant was the brother of Velusamy Gounder and he is the paternal uncle of the first plaintiff and Velusamy Gounder and Sivasubramania Gounder were brothers and they were the sons of Krishnasamy Gounder and therefore, the plaintiffs and the defendant are the members of the parties mentioned in partition deed dated 08.05.1886. There are 50 families belonging to the parties mentioned in the partition deed aforesaid and therefore, the plaintiffs filed the suit in the representative capacity not only for themselves, but also on behalf of the other family members. The appellant/defendant was acting as the trustee of the temple and was enjoying the properties belonging to "B" Schedule and was not rendering proper accounts and treated the properties as his own properties and prevented the hereditary poojari from performing poojas and also failed to appoint any other poojari and also prevented the other members of the family, who are entitled to manage and participate in the function and in December 1998, at the instance of Sub Collector, the temple festival was conducted and all the family members participated. As there was no proper scheme for the trust and the defendant/appellant was not rendering accounts and not properly managing the affairs of the trust and was enjoying the properties, he is disqualified to act as trustee and therefore, a scheme has to be framed and accounts are to be rendered.
3. The appellant/defendant also filed their counter statement denying the rights of the plaintiffs that they are also entitled to hold the post of trustees. But he admitted that the temple is a family temple and the plaintiffs are the members of the family, but the defendant is managing the temple as the hereditary trustee and therefore, the suit filed under Order 1 Rule 8 of the Code of Civil Procedure is not maintainable. He also stated that in O.P.No.50 of 1930 filed on the file of the District Court, Coimbatore, the temple was declared as private temple of the defendant's family and the predecessors in title of the plaintiffs filed O.A.No.121/79 before the Hindu Religious and Charitable Endowment department to declare the temple as public temple and that was contested and the Hindu Religious and Charitable Endowment department accepted the case of the defendant that the temple was a private temple of the defendant's family and as per the documents executed within the family on 14.11.1985 and 8.5.86, it was agreed that the income from the "B" Schedule properties should be used for performing poojas and for maintaining the temple and to conduct festivals. But it was not agreed that the members of the three families must perform pooja and the plaintiffs are only entitled to worship and they have no right to the management of the temple and only the eldest male member was entitled to manage the affairs of the temple and in that manner, the defendant's father Sivasubramania Gounder was managing the temple as trustee and as per the decree passed in O.S.No.226/54, the defendant/appellant was appointed as Managing Trustee of the temple and the plaintiffs were bound by the same as they were also the parties in the said suit and the accounts are properly maintained and audited and O.S.No.507/86 was filed by the brother of Aruchamy Poojari, on the file of the District Munsif Court, Pollachi and that suit was dismissed and the plaintiffs attempted to take management of the temple and that was prevented by the defendant and therefore, the present suit was filed and therefore, false allegations are made as if the accounts were not maintained and poojas were not performed and festivals were not conducted and therefore, the suit is liable to be dismissed.
4. On the basis of the above pleadings, the following issues were framed by the trial Court.
"(i) Whether the scheme has to be framed in respect of the suit temple as prayed by the plaintiffs?
(ii) Whether the defendant is liable to maintain the accounts for the proceeding three years from filing of the suit regarding the suit temple?
(iii) Whether the defendant is liable to hand over the possession of the management to the plaintiffs?
(iv) What relief the plaintiffs are entitled to?"
5. On the side of the plaintiffs, the third plaintiff examined himself as P.W.1 and on the side of the defendant, the defendant himself examined as D.W.1 and four exhibits were marked on the side of the plaintiffs and nine exhibits were marked on the side of the defendant.
6. The trial Court tried the issues 1 to 3 together and held that even according to the defendant, the plaintiffs belonged to the same family and they have got right of worship and they have no right of management of the temple and the properties and the contention of the defendant is contrary to the recitals in Ex.A.1 partition deed dated 08.05.1886. Further, D.W.1 admitted Ex.B.8, the invitation sent by him to the members of the family for participating in the function and in Ex.B.8, he did not state that nobody would be permitted to attend the function without invitation and the invitation was given not only on behalf of the defendant but also on behalf of the family members and he invited the other family members to come and conduct the festival and that would also go against the contention of the defendant that the plaintiffs have no right to participate in the management and they have got only right to worship the deity. The defendant also admitted in the cross-examination that he was getting a sum of Rs.34,000/-(Rupees Thirty Four Thousand Only) per year from the properties and he has not submitted any accounts and he also admitted that for the past two years he did not spend any amount and he was having the income from the trust properties and as per Ex.A.4, the father of the defendant was not maintaining the accounts for more than forty years. It is also proved that the temple and the properties belonged to the family of the plaintiffs and the defendant is enjoying the property without maintaining proper accounts and therefore, as per the partition deed dated 08.05.1886, a scheme has to be framed by appointing trustees for managing the temple and its properties and decreed the suit as prayed for.
7. Aggrieved by the same, the present Appeal Suit is filed.
8. During the pendency of the appeal suit, the sole appellant died on 01.11.2006 leaving behind his wife Devakiammal, sons viz., Kulandaivadivel, Kandasami, Sivaramakrishnan, Mani, Rajasekaran, Ilangovan and daughters viz., Amudha and Jayalakshmi and one of the sons Kulandaivadivel was managing the trust properties and the temple and therefore, he has to be impleaded as legal representatives of the sole appellant and for that purpose, the applications were filed in C.M.P.Nos.486, 487 and 488 of 2011. In the meanwhile, the Appeal Suit was dismissed on 09.11.2006 for non-prosecution and therefore, C.M.P.No.484 of 2011 was filed to condone the delay of 1534 days in filing the petition to set aside the order of dismissal and C.M.P.No.485 of 2011 was filed to set aside the order of dismissal passed in A.S.No.35 of 1995, dated 09.1.2006.
9. Though the learned Counsel for the respondents raised serious objection for allowing C.M.P.Nos.484 and 485 of 2011, considering the allegation made in the affidavit petition and the fact that the appeal is pending from the year 1995 and the parties may not be knowing about the pendency of the appeal, I am inclined to allow C.M.P.Nos.484 and 485 of 2011 and the appeal suit is restored to file and the learned Senior Counsel appearing for the appellant as well as the respondents argued the Appeal Suit on merits. Similarly, C.M.P.No.486 to 488 of 2011 were allowed and the elder son of the deceased appellant was brought on record as legal representative of the deceased appellant.
10. Mr.C.Chinnasamy, learned Senior Counsel appearing for the appellant submitted that the suit filed without getting sanction under Section 92 of the Code of Civil Procedure for framing a scheme is not maintainable and on that ground, the trial Court ought to have dismissed the suit.
11. The learned Senior Counsel submitted that the prayer sought for in the suit is similar to prayer contemplated under Section 92 of the Code of Civil Procedure and therefore, leave of the Court ought to have been obtained and hence, the suit filed under Order 1 Rule 8 C.P.C. without getting leave under Section 92 C.P.C. is not maintainable.
12. The learned Senior Counsel further submitted that the suit has also become infructuous and the allegation made against the deceased defendant was that he failed to maintain the accounts and he died after the suit was decreed and during the pendency of the appeal suit, after his death, his son who was impleaded as the legal representative had taken charge of the trust and no complaint was made against the son of the deceased defendant/first appellant and therefore, when the trust was managed properly and the accounts were rendered, there was no need to frame a scheme and the relief against the deceased defendant for rendering of accounts has also become infructuous. He also filed C.M.P.No.708 of 2013 and C.M.P.No.832 of 2013 under Order 41 Rule 27 C.P.C. to receive the accounts maintained by the deceased defendant from the year 1986-1987 to 1993-1994, 1994-1995 to 2000-2001 and from the year 2001-2002 to 2012-2013 and also to receive the judgments in O.S.No.79 of 1943, on the file of the Sub Court, Coimbatore and A.S.No.355 of 1945, on the file of this Court.
13. The learned Senior Counsel submitted that O.S.No.79 of 1943 was filed by Pappa Gounder and three others against Sivasubramania Gounder-the father of the deceased defendant, Velusami Gounder-the father of the first plaintiff and two others for removing Sivasubramania Gounder-the father of the deceased defendant from the post of trustee and for rendering of accounts. In that suit, the trial Court upheld the contention of the first defendant in the suit and confirmed his appointment as Managing Trustee and directed him to pay a sum of Rs.40,970/- and the same was challenged in A.S.No.355 of 1945 and the Honourable Division Bench of this Court confirmed the order of retaining the first defendant in that suit viz., the father of the deceased defendant in this case and modified the order and directed the first defendant/appellant in that suit to pay a sum of Rs.6282/- instead of Rs.40,970/- and thereafter, O.S.No.226/54 was filed by the deceased defendant against his father and others to remove his father from the management of the temple and the properties and the suit was decreed and the deceased defendant was appointed as Managing Trustee of the temple, after removing his father and the predecessors in title of the plaintiffs were also parties to O.S.No.226/54 and therefore, the deceased defendant was functioning as Managing Trustee by virtue of a decree passed in O.S.No.226 of 54 and he cannot be removed and after his death, his eldest son, who was impleaded as second appellant is managing the trust and no complaint has been made against him and therefore, the present Appeal Suit is liable to be allowed and the suit filed by the plaintiffs has to be dismissed.
14. On the other hand, Mr.S.Kadarkarai, learned Counsel for the respondent submitted that the suit is filed not to vindicate any public rights, but to vindicate private rights of the parties and therefore, it is beyond the scope of Section 92 C.P.C. and therefore, the suit was filed in the representative capacity under Order 1 Rule 8 C.P.C., after getting necessary permission from the Court. He therefore submitted that there is no need to get leave from the Court as the suit was not filed under Section 92 C.P.C. and admittedly, the trust is a private trust and therefore, the suit can be maintained in respect of the suit temple. He also submitted that though in O.S.No.79/43, the deceased defendant's father Sivasubramania Gounder was allowed to continue as Trustee, he was directed to maintain the accounts and to lease out the properties, after notice to the other members and he was also held liable to render accounts for the management of the temple and the properties and he was permitted to spend the amount only with the co-operation of the other members of the family and he was liable to render the accounts from 1939 onwards.
15. A.S.No.355 of 1945 filed by the first defendant in O.S.No.79 of 1943 was against the decree in O.S.No.79 of 1943 and the Honourable Division Bench of this Court held that the plaintiffs in O.S.No.79/43 were Co-trustees along with the first defendant in the suit viz., Sivasubramania Gounder and they were entitled to take part in the management and they were also entitled to be consulted regarding expenses. The Honourable Division Bench also observed in Appeal No.355 of 1945 that the plaintiffs in the suit would be free to ask for removal of the first defendant viz., the father of the deceased defendant from the post of Managing Trustee, if he refused to render the accounts or excluded the plaintiffs and other co-trustees from consultation regarding the expenditure. He therefore, submitted that the son of Sivasubramania Gounder viz., the deceased defendant in the suit filed O.S.No.226/54 against his father and others praying that his father failed to render the accounts and therefore, he has to be removed and his contention was accepted and his father Sivasubramani Gounder was removed from the post of Managing Trustee and in his place, the deceased defendant was appointed and was also permitted to maintain the accounts and after assuming as Managing Trustee, he committed the same mistake and did not render accounts to other family members, who are Co-trustees and are entitled to participate in the function and therefore, the present suit was filed for framing a scheme. He further submitted that the eldest son of the deceased defendant/appellant had taken charge from the year 2006 and therefore on the death of the deceased/defendant, a scheme has necessarily to be framed and the eldest son cannot assume the post of Trustee and having regard to the conduct of the family members of the appellant, they should not be allowed to have the management of the temple, as they failed to render the accounts, despite the decree passed against them earlier. He also opposed the applications in C.M.P.No.708 and 832 of 2013 and he also relied upon the judgments reported in T.G.Viswanathan Chettiar V. Shanmugha Chettiar and Others reported in AIR 1992 MADRAS 148 and Appanna Poricha Vs. Narasinga Poricha and Others reported in AIR 1922 Mad 17 in support of his contentions.
16. On the basis of the above submissions, the following points for consideration arise in this Appeal Suit:
(i) Whether the suit filed by the plaintiffs is not maintainable for want of obtaining leave under Section 92 C.P.C.?
(ii) Whether the case of the appellant that their family members alone are entitled to manage the temple and the properties and the plaintiffs and other family members are only entitled to worship and they have no right of management?
(iii) Whether the appellants were rendering proper accounts and therefore, they are not liable to be removed?
17. Point No.I It is admitted that the trust is a private trust and the same has been confirmed by the order passed in O.P.No.50/1930 as evidenced by Ex.B.2 and B.4. Admittedly Section 92 C.P.C. can be applied only in respect of public Trust and the trust being a private one, Section 92 C.P.C. cannot be applied. Further, the essential ingredients for seeking relief under Section 92 C.P.C. is that parties must fight to vindicate public rights and they should not fight for personal rights and this case, the parties are fighting to establish their right to the management and therefore, the suits filed by the respondents/plaintiffs cannot be brought under Section 92 C.P.C. The judgments reported in T.G.Viswanathan Chettiar V. Shanmugha Chettiar and Others reported in AIR 1992 MADRAS 148 and Appanna Poricha Vs. Narasinga Poricha and Others reported in AIR 1922 Mad 17 confirmed the same and hence, I hold that the suit filed under Order 1 Rule 8 is maintainable and no leave need be obtained under Section 92 C.P.C. and answer the point No.1 against the appellant.
18. Point No.II:
Admittedly, the parties are relatives and they are the descendants of the parties mentioned in Ex.A.1-partition deed dated 08.05.1886. Sivasubramania Gounder, the father of the deceased defendant and Velusamy Gounder, the father of the first plaintiff were brothers and they were the sons of the Krishnasamy Gounder. O.S.No.79/43 was filed by Pappa Gounder, Krishnaswami Gounder, Sinna Pappa Gounder and Mase Gounder, who were the sons of Nanjappa Gounder and they were the descendants of Nanjappa Gounder and his brothers were Subba Gounder and Mase Gounder. The grandfather of the defendant and the first plaintiff was the descendant of Subba Gounder. O.S.No.79/43 was filed by the aforesaid four persons against Sivasubramania Gounder, Velusamy Gounder and two others. That suit was filed for the purpose of removing the father of the deceased defendant viz., Sivasubramania Gounder from the post of the trustee and for redemption of accounts. In that suit, it was held that the first defendant viz., Sivasubramania Gounder shall continue as the trustee and carry out the directions as per Ex.B.2, the partition deed dated 08.05.1886 and he was directed to maintain the accounts and with the co-operation of other members of the family, he was directed to spend the amount and maintain vouchers and he was directed to render accounts from 1939 onwards. That was challenged by Sivasubramania Gounder in A.S.No.355/45 before this Court and the Honourable Division Bench of this Court confirmed the finding by allowing the appellant viz., Sivasubramania Gounder to continue as trustee of the temple and properties, but also observed that the parties may bring any another suit for his removal from the post of trustee, if he failed to render proper accounts or acted against the interest of the trust. Therefore, taking cue from the observation of this Court in A.S.No.355/1945, the deceased defendant, son of Sivasubramania Gounder filed O.S.No.226/54 against his own father and others for removal of his father from the post of Managing Trustee and that suit was decreed and the first defendant viz., Sivasubramania Gounder, the father of the deceased defendant in that suit was removed and the deceased defendant was appointed as trustee and he was directed to carry out the administration of trust in accordance with the directions contained in the partition deed and also as per the judgment and decree passed in A.S.No.355/45. As stated supra, in A.S.NO.355/45, this Court observed that the Managing Trustee can be removed, if he failed to render proper accounts and as the then Managing Trustee viz., Sivasubramania Gounder failed to render proper accounts and failed to consult other persons, he was removed by his own son by filing O.S.No.226/54 and therefore, any person who has been appointed as Managing Trustee can be removed, if he failed to act as per the direction of this Court and he cannot claim to be the hereditary Managing Trustee and his descendant cannot claim such right. In this case, it is specifically averred by the plaintiffs that the deceased defendant failed to maintain proper accounts and also failed to consult the plaintiffs, who are Co-trustees as found in A.S.No.355 of 1945 and therefore, he has to be removed. The trial Court also held, after appreciating the evidence of P.W.1 that he has not rendered the accounts and he did not spend the income from the temple and he has not produced any accounts and therefore,he failed to act according to the term of his office and therefore, he was liable to be removed and according to me, the finding given by the trial Court is based on the evidence and the admission of the deceased defendant and it is also not disputed and as a matter of fact affirmed by the appellant by production of accounts from 1986 onwards as additional evidence. Therefore, point No.II is answered against the appellant holding that the deceased defendant/first appellant was liable to be removed, as he failed to render proper accounts and prevented the other Co-trustees, the plaintiffs and other family members from participating in the function and did not consult them as held in A.S.No.355/1945. I further hold that the plaintiffs, who are also Co-trustees are also entitled to manage the affairs of the temple and the properties and they can also be appointed as trustees and the right to hold the office of trusteeship and the right to manage the properties are not the exclusive right belonging to the family of the appellant.
19. Point No.III:
Admittedly, the deceased defendant did not render any account and only in the appeal, his son filed the application in C.M.P.No.708 of 2013 and produced the accounts from 1986-1987 to 2012-2013. He also admitted that in the evidence as D.W.1 that the accounts were not rendered to the other members and he also did not spend the income for two years and he did not permit the other trustees from participating the affairs of the temple and properties and they were not consulted. Hence, point No.III is also answered against the appellant.
20. C.M.P.No.708 of 2013 is dismissed as the accounts filed by the appellant cannot be received at this stage. C.M.P.No.832 of 2013 is allowed, as in that petition, the appellant wanted to produce the copies of judgment in O.S.No.79/43 and the judgment in A.S.No.355/45 and the parties admitted those documents and there is no dispute with regard to those documents. Hence, C.M.P.No.832 of 2013 is allowed and the two judgments are marked as Exs.P.10 and P.11.
21. In the result, the judgment and decree of the trial Court are confirmed and the Appeal Suit is dismissed. No costs.
25- 04-2014
Index :Yes
Internet :Yes
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To
1. The Subordinate Judge, Udumalpet.
2. The Record Keeper, V.R. Section,
High Court, Madras.
R.S.RAMANATHAN,J.
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Judgment made in
A.S.No.35 of 1995
and
C.M.P.Nos.484 to 488 of 2011
and
708 and 832 of 2013
25.04.2014