Madras High Court
Subramanian vs Annapoornam Ammal on 15 September, 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 15.09.2017
RESERVED ON : 24.01.2017
PRONOUNCED ON : 15.09.2017
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
S.A.No.1215 of 2001
and
C.M.P.No.12768 of 2001
1. Subramanian
2. Parasuraman ... Appellants / Appellants / Plaintiffs 2
& 3
-vs-
1.Annapoornam Ammal
2.Chellappan
3.Kandasamy
4.Thangaraju
5.Ramanathan
6.Ganesan
7.Mohamad Saleem
8.Dhanabagyam Ammal
@ Dhanalakshmi
9.Minor.Priya
(rep.by mother and guardian
R8 Dhanabagyam Ammal @
Dhanalakshmi) ... Respondents 1 to 9/ Respondents 1 to 9 /
Defendants 1 to 5, 7 to 9 & 11
10.K.Jeyakumar
11.Minor.Deepika
12.Minor.Vasanthi
13.Minor.Vimaladevi
(R11 to R13 rep.by their
father and guardian R10 ... Respondents 10 to 13/Respondents 10 to 13/
K.Jeyakumar) Defendants 12 to 15
14.Perumal ... 14th Respondent / 14th Respondent / 1st
Plaintiff
PRAYER: Appeal is filed under Section 100 of the Civil Procedure Code against
the Judgment and Decree dated 26.04.2001, made in A.S.No.156 of 1998, on the
file of Principal District Court, Trichirapalli, confirming the Judgment and
Decree, dated 19.08.1997, made in O.S.No.1200 of 1984, on the file of the I
Additional Subordinate Judge of Trichirapalli.
!For Appellants : Mr.R.Devaraj for Mr.M.Sriram
^For Respondents : Ms.J.Maria Roseline
for Mr.K.Prabhakar for R1 to R4
No appearance for R7, R10 to R13
:JUDGMENT
The unsuccessful plaintiffs 2 and 3 are the appellants herein.
2. For the sake of convenience, the parties are referred to as per the ranking before the Trial Court.
3. The plaintiffs filed the suit, in O.S.No.1200 of 1984, before the learned I Additional Subordinate Judge, Trichirapalli, for the relief of permanent injunction restraining the defendants 1 to 4 from interfering with the peaceful and lawful possession and enjoyment of the suit properties and Apperswamy Thanner Pandal Charity of the plaintiffs.
4. After contest, the learned I Additional Subordinate Judge, Trichirapalli, by Judgment and Decree, dated 19.08.1997, dismissed the suit.
5. Aggrieved by the Judgment and Decree passed by the learned I Additional Subordinate Judge, Trichirapalli, the plaintiffs 2 and 3 preferred an appeal, in A.S.No.156 of 1998, before the learned Principal District Judge, Trichirapalli.
6. After contest, the learned Principal District Judge, Trichirapalli, by Judgment and Decree, dated 26.04.2001, dismissed the appeal and confirmed the the Judgment and Decree passed by the learned I Additional Subordinate Judge, Trichirapalli.
7. Aggrieved by the dismissal of the appeal by the learned Principal District Judge, Trichirapalli, the plaintiffs 2 and 3 have preferred the present second appeal.
8. The brief averments of the plaint that are necessary to decide this appeal are as follows:
The plaintiffs are the Trustees of Apperswamy Thanneerpandal Charity situated in Pulivalam Village, Thuraiyur Taluk. The suit properties were endowed to the said Thanneerpandal Charity. The endowment was originally created by Sambandam Chettiar and Arunachalam Chettiar about 40 years ago. The said Sambandam Chettiar executed a Settlement Deed, dated 04.09.1952, in respect of the endowment property in favour of one Chellappa Chettiar, son of the deceased Trustee Arunachalam Chettiar. As per the said Settlement Deed, the settlee, who enjoyed the property, realized the income and run the Apperswamy Thanneerpandal Charity without any interruption. Chellappa Chettiar was running the Thanneerpandal till his death on 13.10.1981. The said Chellappa Chettiar, while he was in a sound state of mind executed a Will in respect of the said endowment property in favour of the plaintiffs and defendants 5 and 6 and thereby appointed them as Trustees of Apperswamy Thanneerpandal Charity and also the properties of the endowment. The defendants 1 to 4 were not given any right of enjoyment over the said endowment properties and the Thanneerpandal. After the demise of Chellappa Chettiar, the plaintiffs took possession of the suit properties and were enjoying the same by running Apperswamy Thanneerpandal Charity at Pulivalam from 13.10.1981. The defendants 1 to 4 tried to interfere with the peaceful possession and enjoyment of the suit properties. As per the Will, the defendants 5 and 6 were also given right to act as joint trustees of the endowment and the Thanneerpandal Charity. Since the 6th defendant died during the pendency of the suit, defendants 9 to 11 were impleaded as defendants and on the demise of the 10th defendant, defendants 12 to 15 were impleaded as legal representatives to have a binding adjudication. The defendants tried to dispossess the plaintiffs from the suit properties. Hence, the suit for permanent injunction.
9. The brief averments of the written statement filed by the defendants 1 to 4 that are necessary to decide this appeal are as follows:
The plaintiffs are not the Trustees of the Apperswamy Thanneerpandal Charity Trust at Pulivalam. It is true that the building described as Item No.7 and lands described as Item Nos.1 to 6 belong to the Trust. Sambandam Chettiar made a gift of the lands to the Charity in the name of Chellappa Chettiar, son of Arunachalam Chettiar. Under the Trust Deed, dated 04.09.1952, Sambandam Chettiar was authorized to manage the Trust during his lifetime and after him his heirs as per the above Trust Deed. After Sambandam Chettiar's death, Chellappa Chettiar was the Trustee. The defendants denied the genuineness, execution and due attestation and validity of the alleged Will, dated 09.09.1981. The Trust Deed, dated 04.09.1952, laid down that Chellappa Chettiar and after him, his heirs will manage the Trust. Chellappa Chettiar had no further right to change that and prescribed new and different line of devolution of trusteeship. The plaintiffs and the defendants 5 and 6 could not validly claim the trusteeship. The alleged Will, dated 09.09.1981, was validly revoked by Chellappa Chettiar by his last Will, dated 10.10.1981. Under the said subsequent Will, the plaintiffs and the defendants 5 and 6 are not appointed as Trustees and only the first defendant is the Trustee to manage the suit properties. The first defendant is validly appointed as Trustee of the Trust and is entitled to be in possession and enjoyment of the trust properties during her lifetime and thereafter, the second defendant and his heir as per the Will, dated 10.10.1981. After the death of Chellappa Chettiar the plaintiffs forcibly trespassed upon the land described in Item Nos.1 to 6. The building described in 7th Item also was forcibly trespassed upon by the plaintiffs. The plaintiffs are in possession of the suit properties only after the forcible trespass. The suit is bad for misjoinder of defendants 5 and 6. The plaintiffs themselves sued as trustees on behalf of the charity and the charity itself was not made as a party to the suit. The suit is bad for non-joinder of charity. Therefore, the suit is liable to be dismissed.
10. The short averments of the written statement filed by the defendants 9 to 11 that are necessary to decide this appeal are as follows:
The defendants 9 to 11 are not interested in the fight between the plaintiffs and the other defendants. They have also contended that they are neither necessary nor proper party to the suit.
11. The short averments of the reply statement filed by the plaintiffs that are also necessary to decide this appeal are as follows:
The plaintiffs attacked the alleged Will, dated 10.10.1981, executed by Chellappa Chettiar revoking the earlier Will, dated 07.09.1981. The said Will was the creation of the defendants 1 to 4 and 5 and 6. The Late.Chellappa Chettiar has no right to create new line of trusteeship. Chellappa Chettiar was not in a fit state of mind to execute the alleged Will, dated 10.10.1981.
12. Based upon the above pleadings, the Trial Court had framed five issues for consideration.
13. On the side of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A11 were marked and on the defendants side D.Ws.1 to 3 were examined and Exs.B1 to B6 were marked.
14. Based upon the pleadings of the parties and the evidence in both oral and documentary, the Trial Court came to the conclusion that the suit is bad for non-joinder of the suit Trust and the first defendant being the legal heir of Chellappa Chettiar is entitled to manage the Trust as well as the suit properties and dismissed the suit accordingly.
15. As stated supra, the unsuccessful plaintiffs 2 and 3 preferred first appeal in A.S.No.156 of 1998, before the learned Principal District Judge, Trichirapalli and the learned First Appellate Judge, after contest, dismissed the appeal and confirmed the Judgment and Decree passed by the learned Trial Judge. Hence, the second appeal.
16. At the time of admission, the following substantial question of law was framed for consideration:
Whether the words in the Trust Deed 'Parambaraiyaaga' in the earlier clause would only indicate legal representatives of Chellappa Chettiar thereby he will be entitled to appoint new trustees or create or execute Wills in respect of the Trust property as enunciated by the Bench of this Hon'ble Court reported in 1984 TNLJ P.298?
17. The admitted factual matrix are the suit property consisting of VII items of which, Item 1 to 6 are lands and Item No.VII is the building situated in the Pulivalam village, Thuraiyur Taluk, Trichy District.
18. The above said suit property was endowed to create a trust "Apperswamy Thaneerpandal Charity" established by the founders Sambandam Chettiar and Arunachalam Chettiar.
19. The said Sambandam Chettiar had executed Exhibit A1, settlement deed, dated 04.09.1952 in favour of Chellappa Chettiar, S/o.Arunachalam Chettiar, one of the founder of the trust.
20. Admittedly, the said Sambandam Chettiar had no issues which is reflected in the recital in the Exhibit A1, settlement deed where he himself has declared so and he has not been blessed with progeny and the Chellappa chettiar, the beneficiary under the settlement deed is none other than his brother-in-law.
21.The plaintiffs who are the son of the brother of the said Sambandam Chettiar, claims to be the legal heirs of the Sambandam Chettiar filed the suit and also claimed Ex.A2,dated 07.09.1981 will was executed in their favour. While, the first defendant who is the wife of the said Chellappa Chettiar and the legal heirs have claimed the title to the suit property, alleged that they are the descendants of the said Chellappa Chettiar and they also claimed Ex.B2, dated 10.10.1981 is in favour. Both will Ex.A2,dated 07.09.1981 and Ex.B2, dated 10.10.1981 are alleged to have executed by Chellappa Chettiar.
22. Both the Courts below have concurrently held that, it is unnecessary to deal with Exhibit A2, will alleged to be in favour of the plaintiff and the later will, Exhibit B2 alleged to be in favour of the defendant. In view of the unequivocable recitals in the Exhibit A1, settlement deed executed by the Sambandam Chettiar.
23.The unsuccessful plaintiffs are the appellants herein, seeking the relief of Permanent Injunction, restraining the first defendant and their sons from interfering with peaceful possession and enjoyment of the suit property which was negatived by the trial Court and further, plaintiffs are directed to pay the Court fee for deciding the title in favour of the first defendant following the decision in AIR 1981 Supreme Court page 189 (Shah Babulal Khimji vs Jayaben D. Kania And Anr )
24.The trial Court after analyzing the Exhibit A1, settlement deed has came to the conclusion that only the legal heirs of the Chellappa Chettiar are permitted to carry on the object of trust and the "hereditary"
mentioned therein is only in respect of performance of the pooja down the descended line, so also by the lower appellate Court.
25. The above said Second Appeal has been admitted on the above said substantial question of law.
26. The Exhibit A1, settlement deed, dated 04.09.1952, the relevant recital are as follows:-
?1952?k; tUlk; brg;lk;gh; khjk; 4k; njjp jpUr;rp $py;yh Krphp jhYfh g[yptyk; fpuhkj;jpypUf;Fk; bu';fd; brl;oah; Fkhuh; bts;sh"; brl;oah; $hjp tptrhak; rk;ke;j"; brl;oahuhfpa ehd; nkw;go ChpypUf;Fk; tPu/br/mUzryk; brl;oahh; Fkhuh; nkw;go bry;yg;g brl;oahUf;F vGjp itj;j brl;oy;bkz;l; gj;jpuk; vd;dbtd;why; nkw;go g[yptyk; fpuhkj;jpy; vd;dhYk; j';fs; jfg;gdhh; tPu/br/mUzryk; brl;oahuhYk; mg;gh; Rthkp jz;zPh; ge;jy; xd;W Vw;gLj;jp ele;njwp tUfpwJ/ mjw;F brhe;jkhd brhj;Jf;fs; K/jh/fhl;Lf;Fsk; fpuhkj;jpy; ,Ue;jij ehDk; j';fs; jfg;gdhh; tPu/br/mUzhryk; brl;oahUkhf nrh;e;J 09/09/1948?y; U:/1700-?f;F fhl;LFsk; g/fhptd;ld; Kj;jpuuhpaDf;F fpuak; bra;J tpl;nlhk;/ me;jg; gzj;ijf; bfhz;L nkw;go g[yptyk; fpuhkj;jpYs;s mg;gh;Rthkp jz;zPh; ge;jy; fl;olk; Tiuf; fl;olkhf ,Ue;jij gphpj;J bfl;o fl;olkhf fl;otpl;nlhk;/ vdf;F Mz; bgz; thhpRfs; ,y;yhjjhYk; jh';fs; vdJ ikj;JduhdgoahYk; nkw;go mg;gh; Rthkp jz;zPh; ge;jy; jh;kk; guk;giuahf ele;njwp tuntz;Lk; vd;w vz;zk; vdf;F ,Ug;gjhYk; ,jdoapy; fz;l vdf;Fr; brhe;jkhd U:/1000-? U:gha; Mapuk; bgwkhdKs;s epy';fis j';fSf;F tpl;oUf;fpnwd;/ vd; Ma[s; cs;stiuapy; nkw;go jz;zPh; ge;jy; jh;kj;ij ehnd ,Ue;J nknd$;bkz;l; bra;J elj;Jntdhft[k; vd; Ma[Sf;Fg; gpwF jh';fSk; j';fs; gpd; thhpRfSk; ,Ue;J nknd$;bkz;l; bra;J nkw;go jh;kj;ij jtwhky; elj;jp tuntz;oaJ/? (exphasis supplied)
27. The general principle governing the interpretation of the document is that, a "harmonious construction" of the various recital has to be give effect to.
28. After going through the Exhibit A1, settlement deed as extracted above, by applying the interpretation "rule of harmonious construction", it could be seen that the settlement deed was executed by Sambandam Chettiar in favour of the Chellappa Chettiar wherein, he has stated that he was not blessed with either male or female female descendant and the Chellappa Chettiar is described as his brother-in-law. Since, the charitable work of maintenance of ?Apparsamy Thanneer Panthal? has to be carried on for generation after generation. Expressing such a view, he had settled the property worth about Rs.1000/-. Even, at that point of time and also stated that till his lifetime, he will manage and administrate the functioning of ?Apperswamy Thanneer Panthal Charity? and after his lifetime, the said Chellappa Chettiar and thereafter, his descendant (Chellappa Chettiar's descendant) has to manage and perform the charity without fail for generations By applying the principles of harmonious construction, this Court has come to irresistible conclusion that the charitable work has to carry on for generation after generation by the Chellappa Chettiar and his descendant has admittedly, he himself has specifically mentioned as a recital that he has not blessed with any progeny.
29. Thus, in view of the clear recitals in the Exhibit A1, settlement deed, dated 04.09.1952 and the specific word ?Apperswamy Thanneer Panthal "jUkk;" guk;giuahf ele;njwp Mfntz;Lk; which he has presided by specific words in tamil vdf;F Mz;. bgz; thhpRfs; ,y;yhjjhYk; since he has specifically subscribed that the executor Sambandam Chettiar has not been blessed with the any progeny, he had the wish and desire that the charity should be performed generation after generation explicitly stating so and hence, this Court is of the considered views that, it is ?dharmam? the charity has to be performed for generation and generation and the settlor has not meant his descendant, for the reason that he has not been blessed with the any progeny which has been specifically stated as prefixed and hence, the substantial question of law ?parambaraiyaga? is only refers to the fact that charity should be performed generation by generation and he does not mean his descendant and this substantial question of law is answered accordingly and thus, on a combined reading of the above finding with the Ex.A1 and evidence of D.W.1, the sambandam Chettiar was given only for the right of the beneficiary and settlement deed was given only the right of management and as well as the enjoyment of the suit properties till his lifetime and thereafter, the same has to devolve and pass to Chellappa Chettiar and his heirs has been the true tenure of the terms of the trust deed and therefore, the Chellappa chettiar has got no right to create a new line of a trustee and as per the settlement deed, the first defendant being the wife of the deceased Chellappa chettiar being the only legal heir and she is entitled to succeed for the management of the suit property and in view of the finding in the preceding paragraphs as to the meaning as applicable to the terms of the trust deed with the object with which, the trust was created.
30. In this connection, the decision of this Court in 1984 TNLJ Page No.298 (Chellammal Vs.Muthupillai Ammal alias Muthammal (died) and 14 others) wherein, the Division Bench of this Court had dealt with the term "Sannathi Parambari" it has been interpreted to say that "Santhathi Parambarai" would mean nothing, but to mean "Santhathi Parambarai"of Ponnammal and Muthupillal Ammal. As stated earlier, the words found in Ex.A3 that Dharmam or charity mentioned in paragraph 3 shall be performed at all times from generation to generation without power of alienation, do not mean that there should be an exclusion of the first defendant. Considering the fact that under Ex.A3 wherein it is mentioned that the charity should be performed from generation to generation?.
31. As stated supra, the words used in the Ex.A1 is ?Dharmam Parambaraiyaga? on a harmonious construction of the terms of the Ex.A1, settlement deed, the earlier clause mentioned in the settlement deed has to be read in consonance with the later clause as found in deed and therefore, while the earlier clause is to the effect that the said Sambandam chettiar is issue-less and he wanted the charity shall be performed at all times from generation to generation means only the performance of the charity and it is to be stated that ?santhathi parambarai? as referred to, in the above cited decision is different and distinct from ?Dharmam parambaraiai? as mentioned in the Ex.A1 suit document and hence, this Court is of the considered view, the intention of the settlor is to the effect that after his lifetime, the charity has to be maintained and administered by the legal heirs of the Chellappa chettiar. Since he has not blessed with the progeny.
32. The above said decision is distinguishable on facts and circumstances besides specific words mentioned therein which reflects the will and intention of the founders under the settlement deed and hence, later clause in the settlement deed cannot be read in isolation and it has to be construed in harmoniously with the earlier clause recited in the said document by adopting the harmonious construction. The ?parambaraiyaga? refers only to the performance of the charity not of the descendant of the said sambanda chettiar and this substantial question of law is answered against the plaintiff/appellant and in favour of the first defendant and all other findings of the trial Court which in consonance with the well establishment of the principles of law cannot be interfered with.
33. The upshot of the above discussions, this Court comes to the irresistible conclusion that the first defendant being the legal heir of the Chellappa chettiar is entitled to the suit property and following the principle initiated by the Hon'ble Apex Court in AIR 1989 SC 1809 (Corporation Of The City vs M. Papaiah And Anr ) that there cannot be any relief of Permanent Injunction against the true owner and hence, applying the said principle and the finding arrived at in the presiding paragraphs that the first defendant being the legal heir of the Chellappa chettiar is entitled to the charitable trust being the trustee. There cannot be an injunction against the true owner and hence, the plaintiffs are not entitled to the relief of Permanent Injunction and judgment and decree by the both Courts below are well considered and well merited does not warrant any interference by this Court.
34. In the result,
i) this Second Appeal is dismissed without costs.
ii) the Judgment and Decree of the lower Appellate Court in A.S.No.156 of 1998, dated 26.04.2001 on the file of Principal District Court, Trichirapalli, confirming the Judgment and Decree of the trial Court in O.S.No.1200 of 1984,dated 19.08.1997, on the file of I Additional Subordinate Judge,Trichirapalli are hereby confirmed. No costs. Consequently, connected Miscellaneous petition is also closed.
To
1. The Principal District Judge, Trichirapalli.
2.The I Additional Subordinate Judge of Trichirapalli.
.