Madras High Court
Shree Madurakavi Swamy vs The Idol Of Shri Renganathaswamy on 14 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
AS.(MD)No.145 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 12.02.2025
Pronounced On : 14.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HON'BLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)No.145 of 2015
1.Shree Madurakavi Swamy
Thiru Nanthavanam Trust
Rep.by its President Venkatasamy
Naidu, having its office at Mambazha
Salai, Srirangam, Trichy-6.
Venkatasamy Naidu (died)
2.Venkata Ramanujam
3.R.Jayaratchagan
Rengamanner (died)
R.Veda Vedanga Konar (died)
4.B.Ramanuja Dass
5.R.Ethiraja Sampath
6.P.Narayanasamy ... Appellants
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AS.(MD)No.145 of 2015
Vs.
1.The Idol of Shri Renganathaswamy
Temple, Rep by its Joint
Commissioner/Executive Officer,
having his office at Shri
Renganathaswamy Devasthanam,
Srirangam, Trichy-6.
2.Joint Commissioner/Executive
Officer, Shri Renganathaswamy
Temple, Shri Renganathaswamy
Devasthanam, Srirangam, Trichy-6.
... Respondents
PRAYER : First Appeal filed under Section 96 of the Code of Civil
Procedure against the Judgment and Decree dated 23.12.2014 passed in
O.S.No.98 of 2009 on the file of I Additional District Judge, Trichy.
For Appellants : Mr.Raguvaran Gopalan
For R1 & R2 : Mr.M.Saravanan
JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN J.) The unsuccessful plaintiffs have preferred the present appeal. For the sake of convenience, the parties are referred to as their rank 2/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 before the trial Court. The suit has been filed for recovery of the suit property from the defendants after removing superstructure thereon and directing the defendants to pay future mense profits and for cost.
2.Brief case of the plaintiffs is as follows:-
2.1.The first plaintiff is a Public Trust and the plaintiffs 2 to 9 and the 2nd defendant are the Trustees of the 1st plaintiff Trust. The 2nd defendant by virtue of its office had been co-opted as the Trustees in pursuance of the order passed in O.P.No.134 of 1921. The suit property and other properties originally belonged to one Madurakavi who have created an Endowment by virtue of a Will dated 25.08.1903. Under the said Will, he had endowed properties for the maintenance of Nanthavanam for the supply of flowers and garlands to Lord Renganathaswamy and other temples as well. He died shortly and thereafter, the Trust was administered in pursuance of the terms and conditions of the Will. One Krishnasamy Naidu and others have executed a settlement deed on 17.04. 1914 bringing in more properties into the Trust. There was a proceeding by the Deputy commissioner HR & CE and vide its order dated 21.11.1978, he had directed Thiruvenkata 3/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 Ramanuja Dasar to hand over charge of the Trust and its properties. He took the matter Commissioner HR & CE in R.P.No. 2 of 1979 and the same was allowed on 09.01.1980.
2.2.The first defendant approached the plaintiff Trust for purchase of the suit property with a view to construct a Guest House, vide letter dated 21.08.2006. In pursuance of the same, the plaintiffs had submitted necessary documents of title and possession of the suit properties. The plaintiff delivered possession of the property only for putting up construction. The first defendant had hurriedly put up construction in the suit property and the defendants would not take steps for purchasing the suit property. The plaintiff was forced to issue a notice on 15.04.2009 to the second defendant stating that the permission was granted only for putting up construction and not to utilize the property by opening the building. The plaintiff had also issued a notice to Tamilnadu Electricity Board on 07.05.2009 desisting them from granting any service connection. Thereafter, the plaintiff issued a legal notice on 19.05.2009 on the ground that the permission granted was withdrawn and calling upon to stop construction work. The first defendant, who is also a party 4/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 to the resolution passed by the trust of the plaintiff, is estopped from questioning the title of the first plaintiff over the suit property. The first defendant gave a reply on 19.06.2009 containing false allegations. The plaintiff had given a rejoinder notice on 26.06.2009. The first defendant by virtue of his office is one of the co-trustees and therefore, it is not open for the first defendant to question the title of the plaintiff. Under these circumstances, construction put up by the first defendant over the suit property is illegal and unlawful and the same have to be removed.
Hence, the suit.
3.Brief case of the first defendant is as follows:-
3.1.The plaintiffs herein have willfully and wantonly suppressed to aver clause 5 of the Will dated 25.08.1903 in the earlier proceedings in Trust O.P.No.134 of 1921. The charities mentioned in the Will are associated and connected with the defendant Idol and the 1st Plaintiff Trust is a Public Religious Trust. The first defendant Idol and the 2nd defendant were not made parties to the proceedings in O.P.No.134 of 1921 and in R.P.No.2 of 1979 and hence any order passed in the said proceedings will not bind the defendant Idol and will not operate as res- 5/30
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 judicata. Under the Will dated 25.8.1903, the Founder himself has directed the defendant to take the properties on the demise of the 8th Executor the last but one and thus prescribed the mode of succession of office of the Trust. Hence the order passed in Trust O.P.No.134 of 1921 altering the mode of line of succession itself is void. Since the charities under the Will are attached with the first defendant Idol, the provisions of Indian Trust Act will not apply. Under Will, the said Madurakavi has appointed seven Executors to manage the property and further stated that after his life time, the properties mentioned in the Will have to be fully used and utilized for the Kaingaryams of this first defendant Idol, the Executors are restrained from encumbering the property in any manner, the suit property has to be maintained as a Nandhavanam and the Executors have to collect the flowers and prepare garlands and adorn the same to the Idol of Sri Renga Nachiyar, Azhwars and Achariyals, if excess flower available and also to provide daily Amudhu from the Pala Vritcham to this first defendant Idol daily. Thus, the properties have been amalgamated and directed to perform charities mentioned under the Will.
6/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 3.2.The subsequent alleged settlement deed dated 17.04.1914 and the constitution of the fresh Trust Board are void as they are against the terms, conditions and wishes of Shreemaan Madurakavi. The first defendant Idol alone is the sole and absolute owner of the property by virtue of the Will dated 25.08.1903. The civil Court alone can decide the title to the property. Without knowing the facts that the first defendant Idol alone is the absolute and exclusive owner of the suit property, offer was mistakenly made on 21.08.2006. The plaintiff has no right to revoke the license as they themselves have no right over the property. Admissions made by mistake the defendants are not estopped from questioning the right of the plaintiff over the suit property. A proposal was sent to the Commissioner, HR & CE under Section 34 of the Tamil Nadu Act 22 of 1959 seeking his permission for the purchase of the suit property. After perusing title deed and various records, the Commissioner found that the property belonged to the Idol by his order dated 31.07.2009 and directed the second defendant not to pay the consideration to the plaintiff. The present Trustees were not duly appointed by any proper forum. The first defendant Idol alone is the sole 7/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 and absolute owner of the suit property. The suit without prayer of declaration is not maintainable in law.
4.Based on the above pleadings, the trial Court has framed the following issues:-
(i)Whether the scheme framed in Trust O.P.No.134/1921 and order passed in Trust O.P.No.l34/1921 is valid, binding on the defendants?
(ii)Whether the plaintiff is the owner of the suit property as per the terms of the Will?
(iii)Whether the defendants are estopped from claiming title to the suit property?
(iv)Whether the defendants are entitled to take over the management or administration of the first plaintiff trust, when the Executive Officer/Joint Commissioner is the ex-officio trustee of the 1st plaintiff?
(v)Whether the plaintiff is entitled to the recovery of possession of the suit property after removing the superstructure? 8/30
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(vi)Whether the suit for mere possession without prayer for declaration is maintainable?
(vii)Whether the plaintiff is entitled to mesne profit?
(viii)To what other relief?
5.Before the trial Court, on the side of the plaintiff, one Venkatasamy was examined as P.W.l and one Jeyaratchagan was examined as P.W.2 and one Ramanujam was examined as P.W.3 and one Ramachandran was examined as P.W.4 and one Appan Ramanujam was examined as P.W.5 and Ex.A1 to Ex.A30 were marked. On the side of the defendants, one Anantharaman was examined as D.W.l and Ex.B1 to Ex.B6 were marked.
6.Findings of the trial Court:-
(i)the executors appointed by the Madhurakavi under 'Will' was functioned till 1921. Trust O.P.No.l34 of 1921 has been filed by the same Executors appointed by the Founder Trustee and therefore, constitution of fresh Trust in 1921 could not be established.
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(ii)the beneficiary first defendant Idol has not been provided with opportunity in O.P.No.l34 of 1921 and R.P.No.2 of 1979 and all the orders were passed without being made the beneficiary as a party, is cannot be valid.
(iii)the plaintiff cannot claim ownership, when the properties handed over only for the purpose of service.
(iv)the defendants cannot claim title under this suit as they have not made any counter claim or paying Court fee for claim, if any.
(v)the trustees are not the owner of the properties and they do not have power to alienate the same against the wishes of the testator and without obtaining proper permission from the Court of law.
(vi)the plaintiff neither proved the title nor sought for the relief of declaration for title and hence, the suit for mere possession without declaration is not maintainable.
7.The learned counsel appearing for the plaintiffs would submit as follows:-
(i)The first defendant has accepted the title of the plaintiff trust and through Ex.A5 letter dated 21.08.2006 issued by the first defendant 10/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 to the plaintiff and Ex.A7 letter dated 05.10.2006 requested to sell the un-utilized lands for construction of Yadri Nivas.
(ii)Request has already been made for obtaining permission under Section 34 of the HR & CE Act.
(iii)The second defendant after co-option in 1958 has participated in plaintiff trust board and cannot speak against the trust.
(iv)The first defendant commenced construction on the suit property without permission under Section 34 of HR & CE Act. Only the first defendant has filed written statement and the second defendant has not filed any written statement. Therefore, even as per Ex.A1, the title of the trust to properties is clear.
(v)By an order dated 27.10.1921 in O.P.No.l34 of 1921, wherein it has been held that the intention of the testator under Ex.A1 was to create a trust that would carry on the charities and has advised a method of co-
option of trustees on death or resignation of trustees. Vide Ex.A17, dated 23.09.1958, the Commissioner HR & CE has accepted the proposal of trustees to co-opt the Executive Officer of the Temple as a trustee and has approved the same.
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(vi)From 1980 till 2009, the second defendant has been functioning as co-trustee.
(vii)The first defendant has not taken any steps to either challenge order in O.P.No.l34 of 1921 dated 27.10.1921 or the order in R.P.No.2 of 1979 dated 09.01.1980 passed by the Commissioner or initiate any other steps to recover property after 1980 till pre-suit reply notice.
(viii)A trust once created cannot be extinguished, more so a public charitable trust, and the claim of the first defendant that the properties would vest exclusively with it from death of last named trustee in Ex.A1 Will is legally fallacious.
(ix)Further a reading of Ex.A1 using the cy-pres doctrine would show that had Madhurakavi intended to donate property to the Idol, and elaborate arrangement of appointing 9 office bearers with instructions as to manner in which properties are to be maintained and labourers to be recompensed would be otiose. To support his contention, he has relied upon the following judgements:-
(i)The judgement of the Hon'ble Calcutta High Court, reported in AIR 1975 Cal 67 in the matter of Dhanala Karnawat & Anr, to show that principles of Indian Trusts Act can be applied to public (or) private 12/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 religious endowments as the provisions of Section 7 of Charitable and Religious Trusts Act and Indian Trusts Act are identical.
(ii)The judgement of this Court reported in 62 LW(22) 508 (FB) in a case of Sankaranarayanan Iyer V. Poovananthaswami Temple, Koilpatti, Judgment reported in 87 LW (33) 675 in a case of Commissioner of HR & CE Vs. PR.Jagannatha Rao and Judgment reported in 87 LW (34) 704 in a case of D.Ganesamuthuriar & Anr Vs. Idol of Sri Sappanikaruppaswami, to show that who is a defacto trustee-
power of defacto trustee-suit for recovery possession by defacto trustee are explained.
(iii)Judgment reported in 1929 LW (30) 574 in a case of Sivaswami Iyer Vs. Thirumudi Chettiar and judgement reported in (1896-97) 1 CWN 493 in a case of Srimati Mallika Dasi Vs. RatanamaniChakervarti, to show that trustee wrongfully alienated property-can sue for recovery of possession.
8.The learned counsel appearing for the defendant would submit as follows:-
(i)The plaintiffs have willfully and wantonly suppressed the 13/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 Clause '5' of the Will in earlier proceedings, that is, Trust O.P.No.l34 of 1921 as well as before the trial Court. The religious charities mentioned in the Will are associated and connected with the first defendant Idol.
The first defendant Idol and the second defendant were not made parties to the proceedings and hence, any orders passed in O.P.No.l34 of 1921 will not bind the first defendant Idol and will not operate res judicata against the first defendant Idol.
(ii)Under the Will, the testator himself has directed the first defendant Idol to take the properties of trust, on the demise of the last executors and the charities under the Will are connected and attached with this defendant Idol, the provisions of Indian Trust Act will not apply.
(iii)Subsequent alleged settlement deed dated 17.04.1914 and the constitution of fresh Trust Board are void as there are against the terms and conditions and wishes of Sreeman Madhurakavi.
(iv)Neither in O.P.No.l34 of 1921 and the order passed by the Commissioner in R.P.No.2 of 1979 in deciding the title, except civil Court no authority can decide the title to the properties, even if decided, the same is per-se, not title to the suit properties. 14/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015
(v)The plaintiffs did not furnish relevant title deeds to the defendant and without going through the Will, offer was mistakenly made on21.08.2006 by the first defendant Idol.
(vi)After perusing the Will, the first defendant as the owner of the properties, has put up the construction in its property and the plaintiff is also fully aware of the same.
9.Points for determination arises in this appeal is that
(i)Whether the executors appointed under Will dated 25.08.1903 in Ex.A1 have been restrained from encumbering the properties?
(ii)Whether the first defendant Idol has been directed to take the properties and the Management on the death of the 8th executor under Will?
(iii)Whether the scheme mentioned in O.P.No.134 of 1921 and order passed in R.P.No.2 of 1979 are valid and binding on the defendants?
Points 1 to 3:-
10.It is the specific case of the plaintiff that the first plaintiff is to 15/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 be trust and the plaintiffs 2 to 9 and the second defendant are the trustees. Under the Will, the suit properties and other property endowed for the maintenance of Nandhavanam for the supply of the flowers and gralands to Lord Renganathaswamy and if it is surplus, to other Temples as well. After the death of Madhurakavi, the first plaintiff Trust was administered in pursuance of the terms and conditions of the Will. It is also the case of the first plaintiff that one Krishnasamy Naidu and others have executed settlement deed on 17.04.194 bringing more properties into the trust and a fresh Trust Board was also constituted as per scheme framed in O.P.No.l34 of 134 of 1921 dated 27.10.1921.
11.It is the specific case of the defendant that the plaintiffs have willfully and wantonly suppressed the recitals found in the Clause 5 of the Will, in the earlier proceedings in O.P.No.l34 of 1921. Under the Will, the testator himself has directed the first defendant Idol to take over the properties, after the demise of the 8th executor.
12.It is not in dispute that the suit property is originally belonged to one Madhurakavi, who had executed Will on 25.08.1903 in Ex.A1. 16/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 The relevant portion of the Will is extracted hereunder:-
...nkw;go njhl;lq;fspy; cw;gj;jpahFk;
gytpU\q;fspd; kfR{y;fis me;je;j [hjpgyd; ehl;fspy;
=uq;fehjh; epj;jpago mKJ bra;a[k;go rkh;gpj;J
tuntz;oaJ.
...i\ xd;gJ baf;]pf;a{l;lh;fspy;
fhypahfptUtjpy; ,Uth;tiuapy; i\ ifq;fhpaj;ij
ghpghydk; bra;antz;oaJ xUth; ,Ue;jhy;; ,jpy; fz;l brhj;Jf;Ff;fis njt];jhdj;jhh;fs; _buq;fk;
njt];jhdj;jpy; nrh;j;Jf; bfhz;L nky; fz;l jh;kq;fis jtwhky; elj;jp bfhz;L tuntz;oaJld;
13.The executor as defined in Section 2(c) of the Indian Succession Act, 1925, executor is a person who is appointed or named in the last will of a deceased person, to carry out the terms and wishes set out in the last will. Will, as per Section 2(h) of the Indian Succession Act, means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. The word “Testator”employed in Section 2(h) of the Indian Succession Act, 1925 is defined in Order XXXI Rule 2 of the Code of Civil Procedure as the one who makes the Will.” Legatee (or) beneficiary is a person, who is designated to receive property/estate through the request made by the Testator in his last will.
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14.It was made clear in the decision of the Hon'ble Supreme Court in S.Rathinam alial Kuppamuthu & Others Vs L.S.Mariappan & Other in 2007 (6) SCC 724, that a beneficiary under Will receives the property only by devolution and not by transfer. The rest is therefore to ascertain from the contents of the document, on a full reading of the same and if necessary. A will is a legal declaration of the intention of the testator with respect to his property, which he desires to be carred into after his death. It is the ultimate intention of the person executing the Will, which is of paramount importance.
15.Section 74 of the Indian Succession Act, 1925, reads that it is not necessary that any technical words or terms of art to be used in a Will, but only that the wording be such that the intentions of the Testator can be known therefrom. This Section is the first and foremost cardinal principles for constitution of a Will. It is the duty of the Court to gather the truth as the real intention of the testator on a reading of the entire Will as a whole and also test the same in the light of surrounding circumstances under which the testator chose to execute his Will. 18/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015
16.It is well settled that the Will should be read as a whole and surrounding circumstances may be given effect to for ascertaining the intention of the testator form the words used, in a case of Hon'ble Supreme Court reported in 2009 (11) SCC 33 (Bhagwan Krishan Gupta vs Prabha Gupta & Ors). The judgment of the Hon'ble Supreme Court of India, in 2018 (12) SCC 1, in a case of Ranvir Dewan vs Rashmi Khanna and another, it has been held “that intention of testator has to be gathered primarily by reading the recitals of the Will only”.
17.Section 75 of the Indian Succession Act, 1925, empowers the Court to even take the aid of external circumstances in order to ensure that the real intention of the maker are given full effect to. The Hon'ble Supreme Court, in a case of Gorantla Thataiah Vs. Thotakura Venkata Subbaiah & Others, reported in AIR 1968 SC 1332, held the following principles for construction of Wills to be well established, namely:-
a)In constructing a document, whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used. Surrounding circumstances are to be considered only for the purpose of finding out the intended meaning of the words employed.
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b)The Court is entitled to put itself in the Testator's armchair to construe the language of the Will, to arrive at the right construction of the Will.
c)The Will has to be read as a whole in order to gather the true intention of the Testator without attaching importance to isolate expressions
d)The Court must accept a construction that would give to every expression some effect rather than that which would render any of the expressions inoperative. Where one of two reasonable constructions would lead to intestacy that should be discarded in favour of construction which does not create any such hiatus.
e)To the extent legally possible effect should be given to every disposition contained in the Will (Navneet Lal alias Rangy Vs. Gokul & Others, AIR 1976 SC 794 =(1976) 1 SCC 630) The judgment of Hon'ble Supreme Court in 2007 (7) SCC 183, Bajrang Factory Ltd & Anr. Vs. University of Calcutta, wherein it has been held that, with a view to ascertain the intention of the testator, not only the terms of the thereof required to be taken into consideration, but also all the circumstances attending thereto.
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18.Section 82 of the Indian Succession Act enumerates that the meaning of any clause in a Will is to be collected from the entire instrument, and all its parts are to be construed with reference to each other.
19.It is pertinent to state that where a general charitable intention of the Testator is clear from the words used in a Will, and it is found impossible to carry out that intention in the particular mode prescribed by the testator, that circumstances would not destroy the gift to charity, the property would have to be devoted to other religious (or) charitable purpose according to the “cy-pres doctrine”.
20.By keeping in mind, in the above legal position of law applying to the case on hand, on careful perusal of the recitals contained in Ax.A1 Will shows that the testator is the owner of the properties and he is devotee of Lord Sree Renganathaswamy and during his life time, he was doing service to Lord Shree Renganathaswamy by supplying flowers for adorning garlands. His only intention is that all the properties, which he possessed till his life time, should be utilized for the kaingariyam of 21/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 the Lord Renganathaswamy and after his life time, it has to be continued for the same purpose. He had appointed nine executors, who are his close disciples for continuing the same, after his life time. Further, the recitals shows that the executors should pluck different variety of flowers from the Nandavanam for making garlands and offer the same for adorning to Lord Renganathaswamy. If any excess flowers available, it should be given to other temples. The recitals also shows that the fruits grown from the orchard garden should be utilized for daily amuthu for Lord Renganathaswamy, Nachiar and for preparing pickles and also to be utilized for the devotees, who are visiting the temple. He had appointed the following nine executors, (i)Sreenivasaramanuja Dasar, (ii)Ramanuja Dasar, (iii)Rengasamy Nayakkar, (iv)Perumal Dasar, (v)Appai Naidu @ Sadagoba Naidu,(vi)Periyanna Pillai @ Nambiya Pillai(vii)Vengidasalam Pillai, (viii)Rengamannar, (ix)Vengidajaladasar.
21.It is pertinent to mention that during the course of management and administration of the executors, one Krishnasamy Naidu and others have executed settlement deed dated 17.04.1914 in Ex.A16 bringing in more properties into the first plaintiff trust. It is also pertinent to mention 22/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 that in respect of first plaintiff trust, one Venkatachala Dasar alias Venkatachala Ekanki and others have filed Trust O.P.No.l34 of 1921. The said application was filed under Section 34 of the Indian Trust Act seeking direction empowering them to elect the persons among Trustees. Vide order dated 27.10.1921 in Ex.A2, it is observed that he himself was a religious recluse without any family of his won, maintained and conducted the charity in question with pure love of God and devotion from his own private property dedicated under the document dated 25.08.1903 and from funds collected by him from time to time from pilgrims and devotees in all parts of South India. In the order it is further held that the trustees of the Srirangam Devasthanam have not been able to maintain any one of the numerous Nandavanams dedicated to their temple by devotees from time to time. Several such Nandavanams have now been converted into ordinary gardens or have passed out of the hands of the trustees by adverse possession and enjoyment of trespassers. Further, it has been held as follows:-
I therefore, direct the petitioner Trustees to proceed to fill up the vacancy caused by the death of one of their Trustees and all future vacancies that might occur in their Board of Management keeping up always the 23/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 number of nine Trustees on their Board of Management available to do the duties enjoined upon the Trustees in the deed of Trust from out of Ekanikies like themselves or persons leading an ascetic life without families to look after or without any other pecuniary concern of their own in this world.
22.Admittedly, the above said Trust O.P. has been filed by 7 out of 8 surviving executors of the said Trust and one of the trustee was shown as respondent. The Idol Renganathaswamy or their Devasthanam have not shown as party. It is pertinent to mention that one of the terms of the Will dated 25.08.1903 executed by Madhurakavi was altered by Krishnasamy Naidu through settlement deed dated 17.04.1914, which will not binding on Idol. In the order passed in Trust O.P.No.l34 of 1921, they have admitted that the religious nature of the trust to be performed to the Idol. Therefore, the persons, who filed the said application, has file an application to implead the Idol, who was necessary party to that proceedings.
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23.It is an admitted fact that under Ex.A3 dated 21.11.1978, the Deputy Commissioner of HR & CE, Trichy has passed an order stating that as per the Will dated 25.08.1903 created by Thiru.Madhurakavi, nine persons were nominated as executors of the Will. As all the executors nominated in the Will are no more, the Executive Officer should take over complete management of the trust properties. Hence, the Executive Officer is requested to take over management at once from Thiru.Thruvengadaramanujadasar, the person now in management of the trust. As against the direction of the Deputy Commissioner, a revision petition was filed, which was allowed under Section 21 of the Act by setting aside the order dated 21.11.1978 under Ex.A4 dated 09.01.1980 in Revision Petition No.2 of 1979. The executors are bound to fill up the purpose of the Will and to obey the directions of the testator. It is restricted that the executors should not deviated the directions given by the testator. The trustees, who filed the trust O.P., have not proved that the wishes of the testator could be carried out and therefore, they wantonly implement the intentions of the testator by way of creating new trustees. The Court's order went against the testator's wishes. Therefore, the principles of “cy-pres doctrine” cannot be applied in this case. 25/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015
24.It is not the case of the plaintiffs that the Late.Madhurakavi, by his Will Ex.A1, directed that his estate, should be used for charitable purpose and for such purpose, the property shall vest with a trust and certain trustees were appointed in “the Will” also. When the Will of the testator specifically laid down acts to be done and performed by the executors and when there is no evidence to show that the same were carried out as per wishes set out in the Will. The testator himself has placed complete trust in the persons named as executors in the last Will, to perform the task of representing the estate of deceased in the manner specified.
25.It is pertinent to mention that if really, the plaintiffs treated the second defendant as one of the co-trustees of the trust property, they ought to have called for the meetings for the management and administration of the trust properties all these years.
26.P.W.1 in his cross examination categorically admitted that the nine executors appointed in the Will have not given any right to them. He admits that if two executors are alone alive, then the suit property has 26/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 to be merged with the first defendant Idol. He admits that the terms mentioned in Ex.A16 settlement deed is differ from the terms mentioned in Ex.A1 Will.
27.From the above evidence of P.W.1 and as per recitals of Will, it is clear that the suit schedule property has to be merged with the first defendant Idol, after demise of 8th executor. More over, there is no recitals in Ex.A1, the second defendant has to be co-opt, as one of the executors or as a Trustee. The testator has intended that on demise of 8th executor and during the life time of 9th executor, he ought to have merge the suit property with the first defendant Devasthanam and to continue the charities. No line of succession has been prescribed after the life time of executors by the testator of the “Will”, but would intend that Devasthanam has to take the possession of the suit properties.
28.Further, the Testator stipulates that the nine executors alone to perform service till their life time and when the 8th executor died, the properties devolve upon the temple. He never intended to form a Trust. His intention is to dedicate the property only to the first defendant Idol, Lord Renganathaswamy, which is a juristic person, and he created a 27/30 https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/03/2025 06:24:22 pm ) AS.(MD)No.145 of 2015 Nandhavanam only for exclusive purpose of adorning garlands to Lord Renganathaswamy. The testator also intended that executors should not alienate or encumber the property. He restricted their power only to maintain the Nandhavanam and do service to Lord Renganathaswamy. He has not made any authorization for line of succession. A careful reading of recitals shows that the executors have no power to appoint new trustees and to alienate the properties to anyone. In the light of the above discussions, we are of the view that there is no reasons to interfere with the judgment and decree of the trial Court. The points are answered accordingly.
29.In the result, the first appeal is dismissed and the judgment and decree dated 23.12.2014 passed in O.S.No.98 of 2009 on the file of I Additional District Judge, Trichy is hereby confirmed. No costs.
(G.R.S., J.) & (M.J.R., J.)
14.03.2025
NCC : Yes / No
Index : Yes / No
gns
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AS.(MD)No.145 of 2015
To
I Additional District Judge, Trichy.
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AS.(MD)No.145 of 2015
G.R.SWAMINATHAN,J.
and
M.JOTHIRAMAN, J.
gns
Pre-Delivery Judgement made in
A.S.(MD)No.145 of 2015
14.03.2025
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