Madras High Court
E. Mathanga Raju vs M. Gnanamba on 30 November, 2023
C.S.No. 235 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 21.11.2023
Judgment Pronounced on : 30.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE A.A. NAKKIRAN
C.S.No. 235 of 2011
1.E. Mathanga Raju
2.Sri Muvvala Punniyamoorthy
3.Sri D.V. Tara Chandran
4.Sri Chennapuri Devanga Sangham .. Plaintiffs
Versus
1.M. Gnanamba
2.Sri K. Ramesh .. Defendants
Civil Suit filed under Order IV, Rule 1 of O.S.Rules Read With
Section 92 and Order VII Rule 1 of CPC, (a) directing appointment of two
or more trustees including the plaintiffs for the trust created by late
Smt.Ennam Subbamma under a registered settlement Trust Deed dated
21.11.1928; (b) directing the defendants to deliver possession of plaint A,
B, C Schedule properties of the trustees to be appointed by this Court; (c)
directing the defendants to render accounts of the income of A, B, C
schedulde properties for a period of 3 years prior to filing of the suit and
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pay such amounts as may be found due on account taking to the trustees to
be appointed; (d) to pay future mesne profits in such a sum as may be
decided by this Court to the trustee to be appointed till they deliver
possession of A, B and C schedule properties; (e) frame a scheme for the
proper management of the trust and its properties and carrying on various
religious charities set out in the trust deed dated 21.11.1928 and (f) for
costs.
For Plaintiffs : Mr.J. Harikrishna
For Respondents : Mr.T.S. Baskar
Amicus Curie
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JUDGMENT
This suit is filed for framing a scheme decree, in particular, (a) directing appointment of two or more trustees including the plaintiffs for the trust created by late Smt.Ennam Subbamma under a registered settlemnet Trust Deed dated 21.11.1928; (b) directing the defendants to deliver the possession of plaint A, B, C Schedule properties of the trustees to be appointed by this Court; (c) directing the defendants to render accounts of the income of A, B, C schedule properties for a period of 3 years prior to filing of the suit and pay such amounts as may be found due on account of taking to the trustees to be appointed; (d) to pay future https://www.mhc.tn.gov.in/judis 2/20 C.S.No. 235 of 2011 mesne profits in such a sum as may be decided by this Court to the trustee to be appointed till they deliver possession of A, B and C schedule properties; (e) frame a scheme for the proper management of the trust and its properties and carrying on various religious charities set out in the trust deed dated 21.11.1928 and (f) for costs.
2.Brief facts set out in the plaint are as follows:-
(a) The plaintffs 1 to 3 hail from Devanga Community, a linguistic Telugu Minority and they are residing at Old Washermanpet, Madras-600
021. The 4th plaintiff/Chennapuri Devanga Sangham is a registered society under the Societies Registration Act, and its main object and purpose is to cater to the needs, welfare and well being of Devanga Community people and for the welfare of a Public Trust created by one Late.Ennam Subbamma, W/o. Ennam Samadaiah, Devanga Caste on 21.11.1928 called as Charitable Settlement and Trust. The interested persons in the welfare and well being of the Trust and its properties, the plaintiffs are filing this suit under Section 92 CPC for the benefit of the public and particularly Devanga Community people at large.
(b) The plaintiffs state that under a registered settlement and trust https://www.mhc.tn.gov.in/judis 3/20 C.S.No. 235 of 2011 deed vide Doc.No. 2366 of 1928 in the office of the Sub Registrar, Madras
- Chengalpattu, dated 21.11.1928 late.Ennam Subbamma, W/o. Ennam Samadaiah Chettiar, residing at Old No. 6, Arumuga Mudali Street, Korukkupet, Madras-600 021, endowed the plaint A, B and C schedule properties, namely, Old No.6, Arumuga Mudali Street, Madras-600 021 and the Charitable Choultry in Andalkuppam Village, Ponneri Taluk and agricultural punja land of the extent of 2880 sqft., and 0.95 acres in No. 74, Andalkuppam Village, Ponneri Taluk, Chengalpattu District in Paimash No. 209A, B & C and New S.No.328/5 respectively for public charitable purposes. Under the said settlement and trust "A" schedule property was set apart as the capital of the charity and monthly income of "A" schedule property had to be utilized to provide lighting and to entertain the pilgrims in the B schedule choultry. The B schedule property was directed to be used for accommodating the pilgrims coming to Andalkuppam Village. The income from C schedule lands will be utilized to feed pilgrims staying in B schedule choultry on every Bharani Night in every Karthigai month and Further, the lantern will be installed in the Deavasthanam in the name of founder and lighted throughout the nights of Bharani Krithigai and Rohini.
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(c) While so, Ennam Subbamma, the founder of the trust is purported to have executed a registered settlement deed dated 06.07.1934 registered as Doc.No. 1432 of 1934 purporting to settle the Plaint "A" schedule property bearing Old No.6, Arumuga Mudali Street, Madras-600 021 to (1) Chella Lakshmamma, W/o.Chella Annaiah Chetty and (2) Gnanambal, D/o. Chella Lakshmamma, the 1st defendant. It is however significant to note that even under this purported settlement the Settlor concedes that the land purchased in the village of Andalkuppam was purchased for the choultry and charity purposes and therefore, the same is not included in the settlement dated 06.07.1934. In fact, Ennam Subbamma did not execute any such settlement and the same was the outcome of imagination by Challa Lakshmamma and Kumaraswamy Chetty, S/o. Mannar Chetty. At the time of alleged settlement dated 06.07.1934, Gnanambal-the first defendant was two years old and minor. The alleged settlement dated 06.07.1934, is illegal and invalid and does not in any manner deprive the trust of its rights to the A schedule property. The 1st defendant could not have accepted the alleged gift.
(d) The 4th plaintiff, the Chennapuri Devanga Sangham, represented https://www.mhc.tn.gov.in/judis 5/20 C.S.No. 235 of 2011 by its then Executive Committee members filed a suit in CS.No. 422 of 1980 before this Court against the defendants in the said suit who are either predecessors in interest of the present defendants or some of the defendants themselves in the present suit for a declaration that the trust created under the trust dated 21.11.1928 is a public and charitable trust, that the suit A, B and C schedule properties are trust properties dedicated in the said suit to hand over possession of the plaint A, B and C schedule properties to the Sangam viz., the 4th plaintiff herein or to the trustees who may be appointed under the scheme that may be framed by this Court directing the defendants to pay past and future mesne profits and for other incidental reliefs. The said suit was is unsustainable, illegal and cannot stand the scrutiny of law. The trust created by late.Ennam Subbamma on 21.11.1928 is a public religious and charitable trust. When the properties mentioned scheduled in A, B & C have been dedicated for public charities and the same also confirmed by subsequent installation of Sila Sasanam on 28.11.1928 after very dedication of the property to the public trust the founder of the Trust Ennam Subbamma has no right to revoke or alter th terms of trust deed or treat the property of public trust as her own property and settle the same under a later settlement dated 06.07.1934. The https://www.mhc.tn.gov.in/judis 6/20 C.S.No. 235 of 2011 subsequent acts of the present defendants are not legally valid and the property does not re-vest in the foundere after a valid endowment is created earlier. The fact that after creation of the trust the trustee or the gratuitous transferees or persons in the position of defacto trustees or Trustee De-son-Tort failed to perform the objects of the Trust and thought it fit to appropriate the income from trust property for themselves does not put an end to the trust after the trust was effectively created. The plaintiffs state that the endowment becomes effective from the moment of its dedication and the same is inalienable and irrevocable and the trustee does not by subsequent conduct could state it has not come into effect. Hence, the plaintiffs state that the founder of the trust did not go beyond the trust and refrain from giving effect to the trust. The defendants and their predecessors Mannar Chetty and Kumarasamy Chetty had manipulated the registered settlement for their personal gain. Therefore, the plaintiffs have come forward with the present suit seeking the relief of possession of the schedule A, B and C properties to the trust, for appointment of new trustees and directing the defendants to render accounts of income from trust properties which they had appropriated for themselves and pay over the same to the trustees to be appointed.
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3. In order to substantiate the case of the plaintiffs, P.W.1 was examined and 4 documents were marked as Ex.P1 to Ex.P4 on the side of the plaintiffs. There is no representation on the side of the defendants and they are set exparte. Hence, this Court has appointed Amicus Curie to assist the Court.
4. On a perusal of the records and considering the facts of the case, it is made clear that Late.Ennam Subbamma, who is the founder of the Trust, had executed a Registered Settlement and Trust Deed dated 21.11.1928 as Document No.2366 of 1928 endowing the suit schedule properties in favour of the 4th plaintiff Trust for the public charitable purpose. While being so, “A” schedule property is said to have been executed in favour of the defendants 1 and 2 by virtue of a Registered Settlement Deed dated 06.07.1934. Once the suit proeprties are settled to the 4th plaintiff Trust by the founder, she has no right to execute A schedule property to the defendants. Further, it is not proved by the defendants that they are in possession and enjoyment of the suit properties by letting in oral and documentary evidence. Hence, the Defendats cannot claim over the suit property by virtue of a Registered Settlement Deed dated 06.07.1934. since https://www.mhc.tn.gov.in/judis 8/20 C.S.No. 235 of 2011 the suit properties are belonged to the Charitable Trust. Under such circumstances, the defendants 1 and 2 are liable to deliver the possession of “A” schedule property to the 4th plaintiff-Trust. Hence, the plaintiffs are entitled to seek delivery the possession of Plaint A,B,C. Schedule properties to the Trustees to be appointed by this Court. In view of the above, the plaintiffs are entitled to seek from the defendants to render accounts of the income of suit schedule properties for a period of 3 years prior to filing of the suit and to pay due if any and future mesne profits from the defendants from the suit schedule properties. In respect of future mesne profits, the 4th plaintiff-Trust is at liberty to file appropriate application to seek mesne profit as per the provisions of Law.
5. When the matter is taken up for hearing today, the learned counsel for the plaintiffs and Amicus Curie have filed a Draft Scheme jointly for the purpose of administrating of the suit schedule properties settled by Late. Ennam Subbbamma, to be considered by this Court.
6.On consideration of the draft scheme, this Court is inclined to frame the scheme as follows:
https://www.mhc.tn.gov.in/judis 9/20 C.S.No. 235 of 2011 I. NAME AND ADDRESS OF THE TRUST:
The name of the Trust shall be “SRIMATHI YENNAM SUBBAMMA PUBLIC CHARITABLE TRUST”. The address of the Registered Office of the Trust, unless otherwise changed by the Board of Trustees, shall for the present, be at No.23/49, Basavian Street, Old Washermenpet, Chennai 600 021. The Trustees shall hold meetings at the Trust Office or any other convenient place at Chennai as Trustees decide.
II. OBJECTS:
The objects of the Trust are:
(a)To administer and maintain and augment the income on the property House, ground and premises situated at Door No.6, New Door No.14, Arumuga Mudali Street, Old Washermenpet, Madras now Chennai 600021 as per Charitable Settlement and Trust Deed dated 21/11/1928 registered as document No. 2366/1928 which is morefully mentioned in the “A” schedule hereunder. Presently vacant land.
(b)To administer and maintain the Charitable Choultry (presently vacant land) and Agricultural Punja lands at Audakuppam Village, Ponneri Taluk, Tiruvallur District which is morefully set out in the schedule “B” & “C” hereunder.
(c)To feed minimum of 10 pilgrims visiting the Charitable Choultry (presently vacant land) on the Bharani Night in every Krithigai who visit the Lord Sri. Bala Subramanya Swami Temple at Audakuppam Village, Ponneri Taluk, Tiruvallur District as per Charitable Settlement and Trust Deed dated 21/11/1928 registered as document No. 2366/1928.
(d)To light a lantern (Deepam) in the name of the founder throughout the nights of Bharani, Krithigai and Rohini at Lord Sri. Subramanya Swami Temple, Audakuppam Village, Ponneri Taluk, Tiruvallur District as per Charitable Settlement and Trust Deed dated 21/11/1928 https://www.mhc.tn.gov.in/judis 10/20 C.S.No. 235 of 2011 registered as document No. 2366/1928.
(e)The Trustees to recover the schedule mentioned properties from the encroachers if came to know about the encroachment.
(f)To give financial assistance in the form of books, scholarships, stipend etc. to poor and/or meritorious students and grant and provide for such other financial assistance to the needy belonging to the Devanga Community as may be considered appropriate.
(g)To give financial assistance or medical relief and conduct the social activities to the poor and the needy people in distress belonging to Devanga Community.
(h)To do all such other acts and things as may be necessary and conducive to the attainment of the above objectives.
(i)The Trust is ensure to fulfil the object of the founder as per Charitable Settlement and Trust Deed dated 21/11/1928 registered as document No. 2366/1928.
III.COMPOSITION OF THE BOARD OF
TRUSTEES:
The Trust shall be managed and administered by a Board of Trustees comprising of 6 (Six) persons, out of whom 3 persons from the Devanga Community and other 3 persons from the General Public. Of 3 person from the Devenga Community, one person shall be appointed as a Chairperson selected by the 4th plaintiff-Trust and out of total trustee, one person shall be a woman either from the Devanga Community or General Public. Among 5 persons one shall be Secretary and one shall be the Treasurer.
No person who is a minor or of unsound mind or one who is adjudged as an insolvent, or has been convicted of any offence by a Criminal Court shall be eligible to be elected or nominated as a Trustee. https://www.mhc.tn.gov.in/judis 11/20 C.S.No. 235 of 2011 V. TENURE OF OFFICE:
(1) Every Trustee appointed to the Trust Board shall hold office for a period of 3 (Three) years from the date of his appointment.
(2) All Trustees shall be eligible to be re-appointed, subject however to the condition that no person who has served for two consecutive terms, shall be eligible for reappointment.
VI. MEETINGS:
(a) A meeting of the Board shall be conducted ordinarily once in 3 (Three) months and more often, if necessary.
The meeting shall be convened by the Secretary, only on the direction or approval of the Chairperson. In the case of absence of the Secretary or on his refusal to convene the meeting, the Chairperson may convene the meeting.
(b) On requisition by at least five (5) or more Trustees, an emergency meeting shall be convened by the Secretary or by the Chairperson in the absence of or refusal by the Secretary.
(c) In the absence of both the Chairperson and the Secretary, a meeting may be convened on the requisition of Five (Five) Trustees.
(d) The meetings shall be held at the office of the Trust Board or at a place convenient for the majority of the Trustees, depending upon their places of residence.
(e) Notice of an ordinary meeting, with the copy of the agenda shall be sent by the Secretary, to the Trustees at least Seven (7) days prior to the date fixed for the meeting. The agenda shall be prepared by the Secretary in consultation with the Chairperson and with his/her approval. The notice shall specify the date, time and venue of the meeting.
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(f) The notice of the meeting may be served personally on the individual Trustees and if it is not possible, be sent by Registered Post or Courier with acknowledgement and such notice shall be deemed to be sufficient notice.
(g) In case of any emergency, the Secretary or in his absence or refusal, the Chairperson may convene a Special Meeting by giving 24 hours-notices to the Trustees. Notice of such Special Meeting shall be served on the Trustees either personally or on any adult member of their family.
(h) The Chairperson or the Secretary shall convene a special or urgent meeting on the requisition in writing by 5 (five) or more Trustees to convene a meeting of the Trust Board, specifying the purpose of the meeting and giving notice to the other Trustees.
(i) Any member can give notice of a resolution to be moved at the meeting, which shall be delivered to the Secretary at least Seven (7) days prior to the date of the meeting and upon such delivery, the same shall be circulated to the other members at least one day prior to the date of the meeting.
(j) All papers relating to the agenda shall be made available to the Trustees for inspection at the place of meeting at the time or before the commencement of the meeting.
(k) All major decisions shall be taken only in the meetings of the Board and shall not be taken by way of resolutions passed by circulation unless agreed to by all the members. Any such decision taken in circulation shall be placed in the next meeting for confirmation. The question whether a particular decision is major or not, shall be decided by the https://www.mhc.tn.gov.in/judis 13/20 C.S.No. 235 of 2011 Chairperson.
VII. POWERS OF THE BOARD OF TRUSTEES:
The Trust Board shall have the following powers:-
(a) To frame Rules and Regulations, Bye-laws as may be necessary for implementing this Scheme.
(c) To frame a Budget of Expenditure relating to the management, accounts and for the efficient running of the Trust and maintenance of the properties belonging to the Trust.
(d) To issue such directions as may be necessary for the proper and efficient administration of the Trust and properties.
(e) To appoint employees for the trust and to fix the wages, remuneration.
(f) To raise funds, if necessary, by borrowing or overdrafts as may be necessary, to receive grants, donations, gifts and such other sources for improving the infrastructure of the institutions.
(g) With the direction of this Court, the Trust shall enter into contracts and execute documents for the development of the Trust and such documents shall be executed by the Chairperson and another Trustee as may be nominated by the Board.
VIII. DISQUALIFICATION AND REMOVAL OF TRUSTEES:
(1) In the event of any of the Trustees becoming disqualified in any manner as provided in this Scheme, he shall cease to be a Trustee.
(2) A Trustee is also liable to be removed if found to be https://www.mhc.tn.gov.in/judis 14/20 C.S.No. 235 of 2011 unfit to continue as a Trustee as a result of any activity prejudicial to the interest of the Trust or if found guilty of any criminal offence by a competent Court.
(3) The removal of a Trustee under sub-clauses (1) and (2) shall be subject to the following conditions:-
(a) Any proposal for such removal shall be forwarded to that Trustee concerned giving liberty to the Trustee to show cause against the proposal, within a reasonable time.
(b) The reply of the Trustee shall be considered by the Board of Trustees in a properly convened meeting and on passing a resolution for such removal at least by 2/3rd majority of the members present in the said meeting. IX. MANAGEMENT OF FINANCE:
(1) Budget:
The Board of Trustees shall, every year on or before the 31st of March every year, present the Budget for the institution under the management of the Trust, for the year commencing from 1st of April and coming to an end on 31st March. The budgetary provisions shall as far as possible be adhered to and no expenditure not provided for any particular purpose shall be allowed or sanctioned by the Board of Trustees except for reasons to be recorded by them in writing.
(2) OPERATION OF BANK ACCOUNTS:
All the accounts in all the banks shall be operated by the Treasurer. All the cheques and other banking transitions signed jointly by the Chairperson/the Secretary and Treasurer. It is open to the Chairperson and the Secretary to delegate this power to any other Trustee or Trustees. The Bank Account/s to be maintained and operated only in the Nationalised Bank/s or Schedule Bank/s.
(3) AUDIT:
The accounts of the Trust shall be audited every year at the close of the year by Auditors appointed by the Board. https://www.mhc.tn.gov.in/judis 15/20 C.S.No. 235 of 2011 The remuneration of the Auditors shall be fixed and paid by the Board of Trustees from the Trust funds. (4) The Trust may appoint the auditor and Advocate for the Trust.
X. AMENDMENT TO THE SCHEME:
Any amendment to or modification of this Scheme can be effected only by the High Court of Madras, upon filing an appropriate application with notice to all the Trustees and no amendment can be carried out without following the said procedure and the High Court approving such amendment or modification.
XI. COMING INTO OPERATION OF THE SCHEME:
The modified scheme shall come into force after appointment of Trustees by this Court.
2. The Trustees shall not be entitled to any remuneration and be paid reimbursement of the actual expenses incurred by them in attending to the affairs of the Trust.
3. The Board of Trustees shall prepare a list of properties both movables and immovable, shares, outstanding stocks etc., belonging to the Trust.
4 It is the duty of the Board of Trustees to administer the Trust and its properties effectively, maintain proper accounts and see that the funds of the Trusts are utilized for the objects and purpose of which the Trust was created by the Founder.
5. The Secretary shall be responsible for the Custody of all the records of the Trust. He shall be in charge of all routine correspondence. He shall issue notice to convene https://www.mhc.tn.gov.in/judis 16/20 C.S.No. 235 of 2011 the meeting of the Board as decided by the Trustees and shall prepare the Agenda off the same.
6. The Chairman and Secretary shall administer and manage the Property of Trust and to have regular inspection of the properties and responsible of Collection of rents from the Tenants and shall maintain the proper accounts of the Trust.
7. The properties viz. movables of all description, immovable properties, outstanding, shares and claims shall all vests with the Board of Trustees and shall be deemed to be in custody of the Board of Trustees.
XII FUTURE APPOINTMENT OF TRUSTEES:
1) The Secretary or any member of the Board of Trustees shall approach the Court, 3 (Three) months before the completion of 3 (three) years Tenure of Trustees for fresh appointment of Trustees as per above terms of the Trust.
2) Any vacancy arises in the Board of Trustees before the completion of 3 (three) years tenure, the existing Trustee shall select a Trustee of their own unanimously, otherwise to approach the court for appointment of Trustees.
XIII.DETAILS OF THE IMMOVABLE
PROPERTIES OF THE TRUST:
SCHEDULE ‘A’
House, ground and premises bearing Door No.6, New Door No.14, Arumuga Mudali Street, Old Washermenpet, Madras 600 021, in Corporation Division No.21, bearing Old S.No.968, Re-Survey No.2230, comprised in Collector Certificate No.2566, bounded on the North by survey No.2248 (Street) on the South by Survey No.2228, 2229, 2232 belonging to Purshothaman and Ranganathan, on the East by survey No.2231, belonging to Damodaran on the West by Survey No.2227 belonging to K.Kuppiah Chetty in all measuring 1 Ground 7 sq.ft. or thereabouts https://www.mhc.tn.gov.in/judis 17/20 C.S.No. 235 of 2011 situated within in the Registration Sub-District of North Madras. Now Sub Registration district of Royapuram and Registration District Chennai-North. Now presently vacant land.
SCHEDULE ‘B’ Choultry in Audakuppam originally known as Ennam Samadiah Chetty Choultry bearing Door No.4/56, Sannadhi Street, now known as Macherla Kumaraswamy Kalyana Mandapam situate in Audakuppam Grama Natham, bounded on the North, East and South by Sannadhi Street and West by Anandampillai and Subbaraya Pillai Choultry now occupied by Karnam Viswanatha Pillai measuring 90’; East to West and 32’ North to South in all aggregating to 2880 sq.ft.
SCHEDULE ‘C’ Punja land comprised in Old Paimash No.209, A, B & C and New S.No.328/5 extent of 0.95 acres in No.74, Audakuppam Village, Ponneri Taluk, Chengalpattu District bounded on the north by Cart Track East by S.No.328/5 belonging to Parvathiammal and S.No.328/4 owned by C.Manithevar, bounded on the south by S.No.328/6, 328/7 and 328/8 belonging to Rengaiah Naidu and west by Cart track.
7. In view of the appointment of the Trustees, this Court directs the 4th plaintiff- Trust to effect the paper publication both in Tamil and English in Chennai edition, calling for applications from qualified persons as per the Scheme framed by this Court within a period of one month. https://www.mhc.tn.gov.in/judis 18/20 C.S.No. 235 of 2011
8. As a sequeal, the Suit is partly decreed as prayed for.
30.11.2023 Index:Yes/No Speaking order: Yes/No Neutral Citation: Yes/No MSM List of Plaintiffs' side Witnesses:-
PW1 : D.V. Tarachandran
Plaintiffs side Exhibits:-
Ex.P1 : 21.11.1928 The Certified copy of Trust Deed
Ex.P2 : 22.11.1928 The Sila Sasanam
Ex.P3 : 06.07.1934 The Certified copy of Invalid
Settlement Deed
Ex.P4 : 28.11.1979 The office copy of the Plaint
in CS.No. 442 of 1980 on the file
of High Court, Madras.
30.11.2023
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A.A. NAKKIRAN, J
MSM
Pre-Delivery Judgment in
C.S.No. 235 of 2011
Delivered on
30.11.2023
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