Madras High Court
V.S.Raju vs S.Koolu Konar @ Karuppanna Konar on 28 April, 2018
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.4.2018
Reserved on: 24/11/2017
Delivered on: 28/04/2018
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
S.A.No.1916 of 1991 &
C.M.P.(MD)No.9797 of 2017
1.V.S.Raju
2.Soundarammal (died)
3.Seeniammal
4.S.Kandasamy
5.S.Srinivasan
6.N.Nagarathinam
7.S.Thiruppathiammal
8.P.Venkatachalpathy
9.S.Venkateswari
10.P.Balaji
11.P.Ealumalai : Appellants
(A6 to 11 are brought on record as
LRs of deceased second appellant
vide Court order dated 25.07.2017
made in C.M.P.(MD)Nos.6264 to 6266 of 2017
in S.A.No.1916 of 1991)
.vs.
1.S.Koolu Konar @ Karuppanna Konar
2.M.Maruthamuthu Konar
3.K.Mookiah Poosari
4.Ramasami @ Ramu Konar
5.Guruvammal @ Amma Pillai Ammal
6.S.V.Ramiah Pillai
7.K.Radhakrishnan
8.Meenammal
9.K.Natarajan
10.R.S.Mani Konar : Respondents
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree dated 25.06.1991 made in A.S.No.195 of 1984
on the file of First Additional Subordinate Judge, Madurai, partly reversing
the Decree and Judgment dated 25.08.1983 made in O.S.No.249 of 1980 on the
file of the District Munsif, Madurai Taluk,
!For Appellants : Mr.M.V.Venkataseshan
For Appellants 1, 3, 4
and 5
Mr.K.Jagadeesan for Appellants 6, 7 to 11
^For Respondents : Mr.M.Thirunavukarasu for R10
(R1 to R9 given up)
:JUDGMENT
This Second Appeal is directed against the judgment and decree of the 1st Additional Sub Court, Madurai made in A.S.No.195 of 1984, partly reversing the judgment and decree passed in O.S.No.249 of 1980 by the District Munsif Court, Madurai.
2. The defendants 6, 8 to 11 in O.S.No.249 of 1980 are the appellants. The suit was filed for declaration declaring that sale deed dated 22.03.1973 and the mortgage deeds dated 04.12.1974, 13.12.1974, 22.02.1975, as null and void, for removing the first defendant from the Trusteeship and for appointing new Trustees and for permanent injunction restraining the defendants 1 to 6 and their men from altering the suit properties.
3. According to the plaintiffs, one Mathalaimuthu Konar, son of Periyakaruppan Poosari was a Hindu, belongs to Yadhava Community and he executed a Will dated 30.03.1952 dedicating the suit properties in favour of the Trust for performance of certain kaingaryams to the family deities viz., Kambathadian @ Karuppanasami Temple and he passed away on 01.01.1953 without issues leaving behind his two wives Guruvammal @ Amma Pillai Ammal, the first defendant herein and one Sankamuthu Achi, who died in the year 1955. The plaintiffs would further state that they are worshippers of Idols Sonaisamy and Karuppanasami in the Temple and pangalis and Karaigars of the testator. By the Will, the founder constituted himself as a Line Trustee and after him, his wives were directed to carry on the Trust from the income of the properties, after meeting their own maintenance expenses therefrom, but without right of alienation either by wives or by the Trustees.
4. The plaintiffs have alleged that the properties fetched more income than the expenses of the wives, despite the same, the first defendant, who was having life interest, in violation of the terms of the Will had encumbered the properties in favour of the defendants 2 to 11 and hence, the suit.
5. The suit was contested by the defendants refuting the allegations of the plaintiffs. It is the case of the defendants that the plaintiffs have no locus standi to file the suit, as they are neither pangalis nor karaigars and the alienations / encumbrance had taken place only for the necessity to discharge the debt and for maintenance of the properties and the first defendant. The defendants 2 to 11 the purchasers / mortgagees of the suit properties contended that they did not have knowledge about the Will and they are bona fide purchasers for valid consideration.
6. The trial Court, based on the pleadings had framed 15 issues and two additional issues and provided opportunity to the parties to adduce evidence. During the trial, on the side of the plaintiffs, the fifth plaintiff was examined as P.W.1., the fourth defendant as P.W.2 and the attestor of the Will (Ex.47) was examined as P.W.3., and Exs.A1 to A51 were marked. The defendants examined 3 witnesses and produced Exs.B1 to B21.
7. After considering the both oral and documentary evidence, the trial Court eventually dismissed the suit holding that the suit was premature, the plaintiffs have no locus standi to file the suit and the first defendant had alienated and encumbered the properties for legal necessities.
8. Aggrieved over the judgment and decree, an appeal was preferred by the plaintiffs 1 to 3 and 5 in A.S.No.195 of 1984. The learned appellate Judge, partly allowed the appeal, observing that the fourth plaintiff is a pangali of the testator and decreed the prayer of declaration and permanent injunction while rejecting the prayer for removal of the first respondent from the Trusteeship and for appointment of new Trustees. Assailing the judgment of the appellate Court, this appeal has been preferred by the defendants 6, 8 to 11.
9. The Second Appeal has been admitted on the following substantial questions of law:-
"(1) Whether the lower appellate Court is right in accepting Exs.A1 to A18 on the basis of Section 90 of the Indian Evidence Act and accepting the position that the plaintiffs are agnates of Mathalaimuthu Konar?
(2) Whether the lower Appellate Court is right in granting relief to the plaintiffs on the basis of Ex.A-47, registration copy of the Will, when the Will has not been proved in accordance with Section 68 of the India Evidence Act?
(3) Whether the lower appellate Court is right in ignoring - assuming that the plaintiffs have proved the execution of the original Will EX.A-47 to consider whether the properties were burned with Trust or not?"
10. The learned counsel for the appellants contended that neither the plaintiffs nor the defendants have produced before the Courts below the genealogical table, but the first appellate Court based on the self drafted genealogical table, came to a wrong conclusion that the fourth plaintiff was a pangali and that Will Ex.A47 was proved in accordance with law. It is further contended that the trial Court dismissed the suit and the appeal was preferred by the plaintiffs 1 to 3 and 5, however, the first appellate Court, overlooking the fact that the fourth plaintiff did not join with the other plaintiffs to file a suit, partly decreed the suit on the ground that the suit filed by the fourth plaintiff is maintainable.
11. The learned counsel for the appellants further submitted that no endowment was created under the Will Ex.A47 executed nor any dedication in favour of the trust and therefore, at the most it can be taken as creating charge over the properties. Hence, the alienation and encumbrance are valid.
12. Per contra, the learned counsel for the tenth respondent would urge that the appellate Court had declared that the entire alienation and encumbrance made by the first respondent as null and void and against the finding some of the defendants preferred this appeal and during the pendency of the appeal, the appellants 1 to 3 have passed away, but the legal-heirs of the second appellant alone were brought on record and also many of the respondents have died, but no steps have been taken to bring their legal- heirs on record. It is the submission of the learned counsel that the finding in respect of the deceased appellants and the respondents have become final and hence, a contrary finding insofar as other appellants and respondents will lead to an inconsistent decree and prayed for dismissal of the appeal.
13. It is next contended that the fourth plaintiff, viz., R.S.Mani Konar instituted another suit in O.S.No.167 of 2012 before the V Additional District Judge, Madurai against the legal-heirs of the fourth defendant in the suit / Sankaralingam Naidu, seeking declaration declaring that the alienation made by the first defendant Mrs.Guruvammal in favour of the said Sankaralingam Naidu as null and void and for recovery of possession. Though the defendants resisted the suit contending that the plaintiff has no locus standi to maintain the suit and the subsequent suit is hit by Order II Rule 2 of C.P.C., the suit was decreed on 30.07.2012 and the judgment of the trial Court was confirmed by the High Court in A.S.No.15 of 2013. The Special Leave Petition filed by the defendants came to be dismissed. Hence, the maintainability of the present suit cannot be questioned by the appellants.
14. Heard Mr.M.V.Venkataseshan, learned counsel for the appellants 1, 3, 4 and 5; Mr.K.Jagadeesan, learned counsel for the for Appellants 6, 7 to 11; Mr.M.Thirunavukarasu, learned counsel for the tenth respondent and perused the materials available on record.
15. In the case on hand, the plaintiffs claim that they are the pangalis of the testator and worshippers of Kambathadian @ karuppanasami deities and the suit properties were dedicated in favour of the Trust by the owner, one Mathalaimuthu Konar and the Trust was intended to continue the worship of the family idols and connected religious festivals that had been carried on by his ancestors. By the Will Ex.A47, indisputably the testator had given only a life interest to the first defendant and his another wife Sankamuthu Achi and after their life time, the trust activities shall be carried on by the pangalis and karaigars without a right of alienation.
16. The learned counsel for the appellants by producing a genealogy tree submitted that the genealogy table drafted by the lower appellate Court is not correct and the plaintiffs are not pangalis of the testator. On the other hand, the learned counsel for the tenth respondent has produced another genealogy tree and contended that the fourth plaintiff is the pangali of the said Mathalaimuthu Konar. The learned counsel also relies on the evidence of P.W.2 and Exs.A1 to A5 in support of his case. At this juncture, it is pertinent to note that the plaintiffs have claimed to be pangalis and worshippers of the family deities. A perusal of the judgment in A.S.No.15 of 2013, would reveal that this Court in paragraph 15 of the judgment has categorically held that a worshipper can institute a suit for the benefit of the Temple and there was no flaw in instituting the suit by the said R.S.Mani Konar. It is not disputed that the finding of the learned Judge has confirmed by the Hon'ble Supreme Court.
17. The Hon'ble Supreme Court in AIR 1962 SC 633 [Janakirama Iyer v. Nilakanta Iyer], while considering the scope of Section 63 of the Trust Act has held as follows:-
"14. ......We are, therefore, satisfied that the observations on which reliance is placed by the learned Attorney-General cannot be said to amount to a decision that in no case can a beneficiary claim that the trustee appointed under the trust should be removed and a new trustee should be appointed and the trust properties improperly alienated by the previous trustee should be ordered to be delivered into the possession of the new trustee. Section 63 no doubt provides for the two remedies which are available to the beneficiary, but, in our opinion, Section 63 cannot be treated as exhaustive on the subject and so it cannot be urged that a claim for constructive possession like the one made in the present suit is prohibited by Section 63. Prima facie Section 10 of the Limitation Act seems to contemplate an action by a beneficiary under a trust to which Section 10 applies and provides that in such an action the beneficiary may follow the property and ask for a proper order as to the delivery of the said property to the new trustee. If that be so, the provisions of Section 10 would suggest that the remedies prescribed by Section 63 are not exhaustive.
15. Besides, it would be relevant to observe that if Section 63 is held to be exhaustive as to the remedies available to a beneficiary it would lead to very anomalous results. If a trustee improperly alienates the trust property the only remedy which would on that view be available to the beneficiary is to obtain a declaration. How would this declaration be effective to bring back to the trust the property improperly alienated? Strictly and literally construed Section 63 does not refer to the remedy for the appointment of a new trustee either, so that on a literal construction of Section 63 even that remedy may be outside its purview; but assuming that a beneficiary can ask for a declaration that the property alienated is comprised in the trust and also add a prayer for the appointment of a new trustee that only means that after the new trustee is appointed he will have to sue the alienee for possession and very often this suit would be defeated by the alienee's plea of adverse possession. It is hardly necessary to emphasise that when the beneficiary sues for a declaration as required by Section 63 and the alienee resists the said suit the adverse possession of the alienee is emphatically brought out and the pendency of the beneficiary's suit would not affect that position so that on the view that Section 63 is exhaustive more often than not the beneficiary's claim would in substance be defeated by the adverse possession of the alienee. In Subbaiya Pandaram v. Mahamad Mustapha Maracayar [ (1922-23) 50 IA 295] , this is exactly what happened. In the presence of the purchaser it was declared that the trust had been validly created and that the property was in fact a trust property. Their Lordships pointed out that ?at the moment when the said decree was passed the possession of the property was adverse and the declaration that the property had been. properly made subject to the trust disposition, and therefore ought not to have been seized, did not disturb or affect the quality of his possession; it merely emphasised the fact that it was adverse. No further step was taken in consequence of that declaration until the present proceedings were instituted when it was too late?. We would like to add that if for bringing back to the trust the properties improperly alienated by the trustees two suits are required to be filed we apprehend that the second suit by the newly appointed trustee for obtaining possession of the properties would almost always be too late, and so Section 63 cannot be read as exhaustively dealing with all the remedies available to the beneficiary. We must, therefore, reject the argument that the suit for possession in the form in which the prayer has been made by the plaintiffs is incompetent."
In the light of the above judgment and the facts narrated in the previous paragraph, I am of the considered opinion that the suit filed by the plaintiffs is maintainable and further research in this aspect is unnecessary.
18. The case of the plaintiffs is that the original Will dated 30.03.1952 was with the first defendant and their request to produce original was not favourably responded and hence the certified copy of the Will was marked as Ex.A47. It is not disputed that the plaintiffs issued notice to the first defendant for production of the original Will, but she failed to do so and hence, the secondary evidence, certified copy of the Will was permitted to be marked.
19. P.W.3 is the attestor of the Will and deposed that he was working as Beshkarar in a Big Pallivasal at Madurai in 1950. One Syed Sulthan Ibrahim was the close friend of testator, Mathalaimuthu Konar. Thereby, he became a friend of the testator and signed as witness in the Ex.A47 Will. The testator signed in his presence and his signature was also witnessed by the testator and that he was in a sound mind. The trial Court, disbelieved the evidence of P.W.3 on flimsy grounds that the original Will was not produced and P.W.3 has not stated that Ex.A47 was the last Will executed by Mathalaimuthu Konar. But, the appellate Court, in my view, rightly came to the conclusion in paragraph No.27 that the Will was proved.
20. The learned counsel for the appellants by placing reliance on the following decisions submitted that the first defendant has got an authority to encumber and alienate the suit properties:-
(i) 2017 (3) LW 650 [K.S. Palanisami v. Hindu Community in General & Citizens of Gobichettipalayam] "52. We, thus, are of the clear opinion that the will intended to give the survivor absolute right with regard to the properties with further intendment that after the death of the survivor, the remaining property should be used for carrying out the charities. The clear intention of the testator/testatrix while executing the will that the charity shall be carried out from the income of the properties is not given up even during lifetime of the survivor. The obligation to use the income of properties for charity is attached with the property described in the will subject to giving the survivor absolute right with regard to the properties."
(ii) AIR 1951 Supreme Court 103 [Gnambal Ammal vs. Raju Ayyar] "9. In course of the arguments, we have been referred by the learned counsel on both sides to quite a large number of decided authorities, both English and Indian, in support of their respective contentions. It is seldom profitable to compare the words of one will with those of another or to attempt to find out to which of the wills upon which decisions have been given in reported cases, the will before us approximates closely. Cases are helpful only insofar as they purport to lay down certain general principles of construction and at the present day these general principles seem to be fairly well settled.
10. The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy [42 IA 51 at p. 70] ?the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ?The court is entitled to put itself into the testator's armchair??. But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions?. In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life?.
(iii) AIR 1972 SC 2069 [S.S.Pillai v. K.S.Pillai] "32. As observed by this Court in Menakuru Dasaratharami Reddy v.
Duddukuru Subba Rao and Others [AIR 1957 SC 797 : 1957 SCR 1122 : 1957 SCJ 835] that dedication of a property to religions or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of a charity is not created but a charge in favour of the charity is attached to and follows the property which retains its original private and secular character. Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. In such a case it is always a matter of ascertaining the true intention of the parties, it is obvious that such an intention must be gathered on a fair and reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of a charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication. Ex. A-2, after setting out the various charities to be conducted concludes by saying that ?if, after conducting the said charities properly there be any surplus, the same shall be utilised by the said Shanmugam Pillai and his heirs for family expenses. They should also look after the same carefully and properly?. This shows that the entire income of the properties set apart for charities was not thought to be necessary for conducting the charities. It was for the plaintiffs to establish that the dedication was complete and consequently there was a resulting trust. As they have failed to establish the same, for the purpose of this case, we have to proceed on the basis that the dedication was only partial and the properties retained the character of private properties. Therefore the widows of V.Rm. Shanmugam Pillai had a beneficial interest in those properties ? See Kalipada Chakraborti v. Palani Bala Devi [AIR 1953 SC 125 : 1953 SCR 503 : 1953 SCJ 208] As seen earlier they had alienated their interest in those properties. For the reasons already mentioned, the plaintiffs are precluded from questioning the validity of those alienations. It is not open now to them to contend that the alienations in question are invalid. It is not necessary for us to decide in this case whether their successors can challenge those alienations. Suffice it to say that the plaintiffs are precluded from challenging those alienations."
(iv) AIR 1986 MAD 314 [V.K.Srinivasachariar v. K.Ramanujam] "3. The contention of the learned counsel for the appellant is that under the terms of the Will executed by Kothai Ammal on 25th August, 1950, she had dedicated item 5 of the B schedule for purposes of a Trust for the performance of certain services and charities and therefore, that item cannot be subjected to any division at all. In this connection, the learned counsel drew attention to the recitals in the Will of Kothai Ammal. On the other hand, the learned counsel for the first respondent pointed out that on a proper reading and construction of the terms of the Will of Kothai Ammal, it was clear that though she wanted to secure an uninterrupted continuity in the performance of the service and charity in the temple, yet, she had purported to create only a charge over the properties and, therefore, the property could be divided and disposed of, subject to the performance of the obligations imposed thereon.
4. In order to appreciate this contention, it would be necessary to refer to the terms of the Will of Kothai Ammal under Ex. A21 dated 25th August, 1950 already extracted. After referring to her purchase of item 5 of the B schedule property under a document dated 17th April, 1950, the testatrix bequeathed the property as well as the income therefrom in favour of Kuppanna Iyenger. This is made clear by the use of the expression. .... (Matter in vernacular omitted - Ed.) There is no doubt that the testatrix desired that Kuppanna Iyengar should take item 5 of the B schedule. That Kuppanna Iyengar and his heirs were intended to take the property and enjoy the same is further made explicit by the use of the expression. .... (Matter in vernacular omitted - Ed.) The charity directed to be performed is the distribution of half a measure of cooked rice on all the days in the month of Margazhi at the time of Thirupalliezhuchi. On a consideration of the language employed in the dispositive clause relating to item 5 of the B schedule, it is clearly made out that the testatrix desired the property be bequeathed to Kuppanna Iyengar should be taken and enjoyed by him and his successors, subject to the performance of the charity aforesaid. In other words, there is no dedication of the property either to the temple or to any Trust for the performance of the charity; but only the creation of a charge over the income of the property for the purpose of the charity. No doubt, there is also a recital in the Will that Kuppanna Iyengar should not create any encumbrance over the property. That cannot be read either as a partial or a total restraint on the alienation of the property. The expression (Matter in vernacular omitted - Ed.) ordinarily means only an encumbrance. In other words, there is no prohibition against the alienation as such. It is not improbable that the testatrix used the expression (Matter in vernacular omitted - Ed.) with a view to secure a continuity in the performance of the services as well as charity without break. That cannot be construed as indicating a dedication to the Trust or to the temple for charity and services as to impress the property with the character of Trust properties and rendering it unavailable for partition. On a careful consideration of the relevant recitals in Ex. A21, it is clearly established that the testatrix was desirous of providing for the performance of the charity and services in the month of Margazhi without any break and that she sought to achieve by creating a charge over the income from the properties. In other words, there was no creation of Trust with reference to item 5 of the B schedule under the Will of Kothai Ammal but only a charge upon that property was created. That would mean, the property was capable of being divided or alienated, subject to the performance of the obligations imposed on the properties. Consequently, the court below was right in having granted a decree with reference to the item in the manner done. No interference, therefore, with the judgment and decree of the court below is called for. The appeal is, therefore, dismissed with costs of the first respondent."
(v) (2014) 2 MLJ 129 [Mallikarjunan v. Rao Bahadur Allathore Nathamoony Chetty Charitable Trust] "18. In S. Subramaniam v. Dr. S. Ramadoss [2002 (2) L.W.733], P.T. Lee. Chengalvaroya Naicker Trust provided for appointment of a person from the family of the founder Trust and four persons from the Vanniya Community as trustees out of the 9 Trustees. When it was contended that the Trust is for the welfare of the Vanniya Community, majority of the trustees should be from that Community. It was rejected by the Court, because, it is not a provision in the Trust Deed. Thus, this decision is not applicable to the facts of the present case.
19. Thus, the provision in the Will as regards filling up of the vacancies in the office of the trusteeship would clearly show that the intention of the testator, who himself is an Ariyavysia, is to fill up the vacancies from the members of his own community, residing in Chennai.
20. Thus, the learned Single Judge has correctly construed the provision in the Will regarding the filling up of the vacancies in the office of the trusteeship."
(vi) 2014 (4) SCC 693 [Rajasthan SRTC v. Bajrang Lal] "25. The Appellants, who have not even disclosed who they are and in what way they are connected either with the trust or with the Trust property, have alleged that the legal heirs of the Rajagopal Chettiar and Subramania Chettiar, who were appointed as executor Trustees of the Will, are indulging in misappropriating the Trust properties by way of alienation. They would state that they have sent a notice to the Respondents to act in accordance with the Judgment of the Principal Court, Salem to implement the Will of Appavoo Chettiar. Since no action has been taken and the legal heirs of the family members are acting in violation of the objectives of the Will, they are filing the present Petition to appoint them as Trustees to the Appavoo Chettiar Trust. They have not even disclosed any cause of action, leave alone to clarify in what way they are connected with the Trust properties or family of Appavu Chettiar.
28. When there is no cause of action for any proceedings, a Civil Court has ample power to reject such proceedings in limine. Therefore, the learned District Judge has rightly allowed the Application to reject the Original Petition and dismissed the Original Petition in O.P. No. 239 of 2008. I have no reason to interfere."
21. There is no dispute with regard to the principles laid down in the above decisions, but I am of the view that they have no application to the facts of this case and no way advances the case of the appellants, for the reasons that in the first decision [2017 (3) LW 650], the testator had given absolute right of enjoyment of the properties to the survivors, but that is not so in the case on hand. In the second case, [AIR 1951 SC 103] general principles of construction of the Will is stated. The third judgment [AIR 1972 SC 2069] relied on by the appellants, supports the case of the respondents, as the testator intended to use the substantial income for the purpose of charity. The fourth decision [AIR 1986 MAD 314] relates to performance of charity and services in the Temple in the month of Margazhi and this Court found that there was no dedication either in favour of the Trust or the Temple and his successors shall take and enjoy the property in question and the fifth decision [2014 (2) MLJ 129] deals with appointment of trustee.
22. Learned counsel for the appellants by placing reliance of the unreported decision of this Court in S.A.No.1881 of 1997, argued that there was no dedication of the property to the temple and only a charge was created for performance of the certain charities. I am not able to agree with the contention for the reason that in that case, a document under Ex.A1 property in Schedule was allotted for the purpose of giving water to the people. The learned Judge, by holding that it is not a religious charity and hence, no restriction for selling the property.
23. A careful reading of Ex.A47 reveals the clear intention of the testator that the properties dedicated shall be maintained by the trustees without the right of alienation and religious activities shall be carried on forever. The learned counsel for the tenth respondent cited the following decisions in support of his case:-
(i) AIR 1979 SC 671 [M.V. Ramasubbiar v. Manicka Narasimachari]
4. .... It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family. It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by Section 49 of the Act and the prohibition contained in Section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in Section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further conclusion that the Rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee.
Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner. The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it."
(ii) In 2006-1-LW-435 (Rajamanicka Reddiar & 2 others V. Gopal Gounder & 8 others), Justice M.Thanikachalam, had an occasion to consider the similar issue and by following the earlier decisions of the Division Bench has held as follows:-
"25. As defined under Sections 2(17) and 2(19) of the Act, religious endowment means any property or money endowed for the purpose of any specific service or charity in a mutt or temple, cannot be in dispute. The founders of the Trust, under Ex.A1, in order to see that the religious kaingaryams are performed without any disturbance whatsoever as carried out in the past, as well in order to preserve the properties endowed to the entire extent throughout, not to snatch, has made specific recitals in the doc ument itself. While interpreting this kind of document, it must be always the endeavour of the Court to satisfy and carry out the intention of the testator, by reading the document as a whole, not splitting the sentence, in order to suit the defence, thereby causing abrasion to the purpose and aim of the creation and intention. There is possibility and probability to interpret the document favouring the Trust for preserving the property, that alone should be adopted, otherwise, the purpose of creating the Trust will be frustrated. If any deviation is taken, to benefit the person or individual, who had violated the recitals, that is, the express or implied intention of the founders, certainly that would destroy the purpose and intention of the founders and to preserve the Trust or the endowment, the document should always be read as a whole to favour the trust and needed interpretation should be given.
26. Under Ex.A1, two kinds of kaingaryam to be performed and they are, to meet the expenses, for uninterrupted lighting in the sanctum of Arunachaleswara Temple, providing oil and wick, as well as to meet the expenses regarding the charitable activities in Poonthottam. Nowhere in the document, the expenses are limited or restricted or it is said that after meeting the expenses for the above said two kaingaryams, the successors of the founders are entitled to divert the fund or make use of the excess, for their own. This being the position, in my considered opinion, the first appellate Court has unnecessarily laboured in paragraph-16 of the Judgment to go into detail about the actual or needed expenses regarding the charitable activities and the income from the properties. When the founders of the Trust had not intended or aimed to restrict the expenses or taken into account the income of the property, whether it is sufficient for expenses or not, in my opinion, it is not for the Court to interpret the document, on the basis of the expenses to be incurred and the income to be derived. The creation of fund mentioned in the document is for the continuous performance of both charitable purposes. To have the funds for ever, protection of the properties is a must and in this view to preserve the properties for ever, for continuous flow of funds, it was felt, the properties should not go out of the hands of the family, and to achieve this aim, a provision is made in the document, which should be honoured. Line of succession is also contemplated in the document preventing the successors from alienation and encumbrance, which would go to show, the founders created the Trust, dedicating the entire property for the purpose. Therefore, in my view, it cannot be said, creation of fund would mean, making some provision for dharma kaingaryam, swallowing the corpus itself, thereby one day extinguishing the Trust itself, and taking the property out of the reach of the endowments. In this view, if the alienation is recognised, certainly that will offend the purpose of the document, for which dominant purpose it was created, with good intention, having much feelings and sentiments.
27. In Sri Thirupuranthakaswamy's case also, a property was gifted to temple and the purpose was to carry out Shri Deepa Kaingaryam, making provision that the lands should be managed by the Trustee appointed, for carrying out the said purpose. While considering the recitals in the said document, a division bench of this Court has taken the view that the property has been dedicated only to the temple and not to the trustee. ......"
The document says, when the question of management comes, the management of the properties should be detained in the family. If the founders had thought of not divesting the property in favour of the temple, they would not have stated in the description of the properties that the properties should not be alienated or encumbered. As claimed by the learned counsel for the first respondent, if a charge alone had been created over the properties, they should have mentioned the amount also, making provision for the surplus income, such as how the surplus income should be diverted or enjoyed, as the case may be. There is no such recital available in the document. A division bench of this Court in M.G. Narayaswami v. Balasundaram (AIR 1953 Madras 750 = 65 (1952) L.W. 368) has considered a case of similar nature on hand and has taken the view relying upon number of decisions, that when the surplus income, if any, was not ear marked for any purpose, it is to be held, the entire property was dedicated as trust, following the decision reported in AIR 1952 Madras 650, wherein it is held that the entire income from two shops and from the bungalow should be utilised for the purpose of Mandagapadi and that these properties were dedicated in trust for the purpose of Mandagapadi pooja . Here also, to meet the expenses of two dharma kaingarayam, a trust has been created dedicating the properties, not contemplating any diversion of income, thereby making it a complete dedication, not warranting to take any other view. In view of the absence of provision of surplus income and in view of the fact, that the lands were dedicated only for the above said kaingaryams, as rightly held by the trial Court, the alienation will not bind the Trust, which is not properly considered by the first appellate Court. Therefore, the observation of the first appellate Court in para-26 of the Judgment that the restriction imposed for encumbrance in Ex.A1 will not affect A-2 appears to be erroneous one, liable to be set aside. The observation of the first appellate Court in para- 28 that if the executants of Ex.A1 had the intention of giving the properties to the temple, they would have executed the document in favour of the temple, is not acceptable to me, since the parties having created a Trust, thought fit to detain the management of properties in the family, for the limited purpose, that is, as far as the management is concerned with them, generation to come, which will not take away the complete dedication of the properties in favour of the temple already conferred, as recited in the document itself.
"
(iii) In AIR 1962 SC 89 [State of Punjab v. Nathu Ram], a question arose, whether the appeal preferred by the State is maintainable in view of one of the respondents died during the pendency of the appeal ans his legal- heirs were not brought on record under Rule 4 of Order 22 of C.P.C. In that case, land belonging to two brothers was acquired by the Government. The compensation determined by the Collector was not accepted by the owners and the matter was referred to the Arbitrator, who passed a Joint Award enhancing compensation. Against the award, the State preferred an appeal and during the pendency of the appeal, one of the brothers died. Since his legal-heirs were not brought on record, the Hon'ble Supreme Court has held as follows:-
4. .... To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances and have therefore to be dismissed. Such a result depends on the nature of the relief sought in the appeal.
5. .... It follows, therefore, that if the court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the deceased respondent, it has to proceed with the appeal and decide it. It is only when it is not possible for the court to deal with such matters, that it will have to refuse to proceed further with the appeal and therefore dismiss it."
24. It is not in dispute that the appellate Court had declared that the entire alienation and encumbrance made by the first defendant as null and void. As stated supra, the defendants 2 to 11 are the purchasers and mortgagees of the suit properties and during the pendency of the appeal, preferred by the defendants 6, 8 to 11, the defendants 6, 8 and 9 have died, but no steps have been taken to bring the L.R's of the defendants 6 and 9 on record. Further, the plaintiffs 1 to 3 and 5 and the defendants 1 to 3, 5 and 7 were arrayed as respondents 1 to 9 in the present appeal and they have been given up. It is relevant to note that at the instance of the plaintiffs 1 to 3 and 5, the appellate Court held the encumbrance as void. Hence, as rightly contended by the learned counsel for the tenth respondent, the appeal is liable to be dismissed, following the dictum laid down in AIR 1962 SC 89 (supra).
25. The appellants 6 to 11 have filed C.M.P.No.9797 of 2017 under Order 41 Rule 27 and Section 15 of C.P.C. seeking permission to produce mortgage deeds dated 20.06.1928, 16.06.1935 and a copy of the plaint in O.S.No.174 of 2013 as additional evidence to show that the plaintiffs are not pangalis of the testator and the suit was filed with mala fide intention. In view of my finding that the suit filed by the worshipper is maintainable, the documents now sought to be produced have no relevance. Further, marking of additional evidence at the appellant stage is not a routine and the petitioners have to satisfy the conditions enumerated in Rule 27 of Order 41, but no reasons have been assigned to mark the documents at the appellate stage. Hence, the application is dismissed.
26. In view of the above discussions and findings, the questions of law are answered against the appellants. The Second Appeal fails and the same is dismissed. The connected Miscellaneous Petition for reception of additional documents is also dismissed. No costs.
To
1.The Sub Court, Thanjavur.
2.The District Munsiff Court, Thanjavur.
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