Madras High Court
A.Madasamy vs Thuvaragapathy Vinayagar Samuthayam on 4 September, 2015
Author: V.M. Velumani
Bench: V.M. Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 04.09.2015
CORAM
THE HONOURABLE MS.JUSTICE V.M. VELUMANI
A.S.No.153 of 2001
A.S.No.153 of 2001 and M.P(MD).No.1 of 2013 and
M.P(MD).No.1 of 2015 and
Tr.A.S.No.235 of 2003 and A.S.No.940 of 2001
and M.P(MD).No 1 of 2013
A.MADASAMY [ Appellant ]
Vs
1 Thuvaragapathy Vinayagar Samuthayam,
Chayakaran Samuthayam
Idalakudi parasuraman Peruntheru,
Vadiveeswaram Village,
Agastheewaram Taluk,
Kanyakumari District.
2. S.M.Swamy
3. S. Ramaiah
4 A.Meenakshi sindaram
5 L.Kumarasamy
6. S.Sankaralingam (died)
7. S.Vandimalayam
8. S.Vandimalayam (died)
9. K.Ganesan
10 Jageera beevi
11.Sahul hameed
12. S. Ameena ummal
13. A. Kalthum Beevi
14. N.Fakruddin
15. M.Maideen pillai tharakkanar
16. M.Maideen kutty
17. F. Mohammed maideen
18. E.krishnammal
19. M.Syed ali fathimal
20. M. Aliakbar
21. S.Ramzan ali
22. M.Abdul wahab
23. S.Kaja maideen
24. P. periasamy
25. A. Aobdul majid
26. F.Mohamed syed
27. S. Jeenath Begum (died)
28. E.Ahmed ali jinna
29. K. yocob Beevi.
30. S. Kader Modieen
31. I.Asinisa beevi
32. K.D.A.sulaiman
33. E.Jagabar siddick
34. P.Srikrishnan
35. U.Ayshabeevi
35. S.Hasan beevi
37. Meerasa
38. S.Sahul ahmed
39. Pavakasaim
40. S.Thaweed
41. Noordin sahib
42. Peer mohamed
43. A. Rahamathulla
44. N.Ameena beevi
45. M.Samsu beevi
46. P.sulayaka
47. A.Ganesan
48. S.Chidambaram
49. Ahmed Meeran
50. Mohammed abdul kader
51. Abdul majith
52. Sabiya beevi
53. Kathiyummal
54. Sivaraj
55. R.Ravikumar
56. R.varaha subramani
57. R.ganesan
(r55 to r57 are b/r as lrs of the deceased. R3
vide order dt. 09.08.2011 and made in mp(md).2/2008 in as.153/2001 by
mdj)
58. Shahulmhameed
59. Beer mohamed @ ashrafh
60. Banu
61. Sundar
62. Subash
63. Gandhi
64. Tamilarasu
65. Velavendan
* (r-58 to 60 are brought on record as lrs
of the decd r-27 r-61 are brought on record
as lrs of the decd r-6 and r-62 to r-65 are
brought) Respondents
Prayer in A.S.No.153 of 2001: The appeal suit is filed against the Judgment
and decree dated 22.12.2000 made in O.S.No.102 of 1983, on the file of
Additional Sub Court, Nagercoil.
!For Appellant : Mr. T.V. Ramajayam, Senior Counsel
for Mr.K.P. Narayana kumar
^For Respondents: Mr. T. Selvakumaran
(9,13,15,18,24,29,31,32,34,41,42,47 and 55 to 57)
For R5 and 54 : Mr. D.Rajagopal
For R62 to 65 : Mr. F. Deepak
(R3,6,8,27,16 died no steps taken)
For RR1,7,10,11,17,19,
20,22,23,25,26, 28,30,
33,35,36,37,38,39,40,
41,43,44,45,46,51,52, : No appearance
53,58,59,60 and 61
RR2,4,5,12,14,15,21
24,34,48 to 50 : Not necessary parties.
A.S.No.940/2001
1. Idalakudi Parasuraman Peruntheru
Pattadai Kudimakkal Trust ,
2. Madasamy
3. A. Gomathy
4. A. Subbulakshmi [ Appellants ]
Vs
1 A. Ganesan
proprietor, dyeing Factory
Parasuraman Peruntheru
Idalakudi, Vadiveeswaram Village,
Agastheeswaram Taluk,
Kanyakumari District.
2. A. Kalidas
3. A. Thamizhmani
4. A. Manoharan
5. A. Devi
6. A. Bhavani
7. A. Uma
8. K. Madasamy
9. K. Kumarasamy @ Gopalan
10. K.Krishnammal
11. Nagammal
12. Neelavathi
13. Azhagammal
14. Sivaprakasam @ Prabavathi
15. L. Kumarasamy
16. S. Vandimalayan
17. S. Vandimalayan(Died)
18. S. Sankaralingam
19. G. Ganesan
20. J. Selladurai
21. S. Manickam
22. C. Neelakandan
23. K. Neelakandan died
24. S.M.SWamy
25. A.S. Muthiah
26. S. Ramanathan
27. L.Seetharaman (died)
28. C. Lakshmanan (died)
29. Sangamuthu
30. S. Chidambaram
31. M. Subbiah
32. S. Ramaiah
33. S. Veerasamy
34. Muthammal
35. Parvathy
36. Pandarathy (died)
37. K. Subbiah
38. S. Subbiah
39. S. Kanniah
40. Vadivu
41. Sankarammal (died)
42. Aysabeevi
43. Kuppumuthu
44. Sri krishnan
45. A. Abdul Rahman
46. A. Kaja Mohaideen
47. Mariam Beevi
48. N. Murugan
49. E.S. Madasamy
50. Ramaiya
51. S. Subbiah
52. L. Ganesan
53. R. Ravikumar
54. S. Ravishankar(died)
55. M. Vinayaga Murthy
56. S. Subbiah
57. Manthiramurthy
58. Murthy
59. Sivaraj
60. Suvruba Rani
61. S. Rajam
62. S.Vel Azhagan
63. S. Ramachandran
64. S. Varadan
65. S. Annadurai
66. Thirusadai Veni (died)
67. Rajalakshmi
68. Saravanaperumal
69. Sangeswathi(died)
70. Meenakshi
71. Minor Nagarathinam
rep. by 66th respondent
72. Subash
73. Gandhi
74. Tamilrasu
75. Velavendan
(R72 to 75 brought on record as Lrs of the Deceased R17
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
76. Sundar
(R76 brought on record as Lrs of the Deceased R18
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
77. Mookkammal
(R77 brought on record as Lrs of the Deceased R23
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
78. Kumaran
79. Senthil
80. Palani
(R78 to R80 brought on record as Lrs of the Deceased R23
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
81. S. Lakshmanan
82. S.Subramani
((R81 to 82 brought on record as Lrs of the Deceased R27
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
83. S. Rajeswari
(R83 brought on record as Lrs of the Deceased R31
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
84. Vinayagavalli
(R84 brought on record as Lrs of the Deceased R36
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
85. Rasammal
(R85 brought on record as Lrs of the Deceased R41
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
86. Gopal
87. Sivakumar
(R86 and 87 brought on record as Lrs of the Deceased R43
vide order dated 18.03.2013 made in M.P(MD).No. 1 to 26 of 2009)
Prayer in A.S.N0. 940 of 2001: The appeal suits are filed against the
Judgment and decree dated 22.12.2000 made in O.S.No.87 of 1983, on the file
of Additional Sub Court, Nagercoil.
For Appellants 2 to 4:Mr. T.V. Ramajayam, Senior Counsel
for Mr.K.P. Narayana kumar
For 1st Appellant : Mr. T.R. Rajaraman
For Respondents: Mr. D. Rajagopal
(12,13,15,16,22,24 to 26, 34,37,48,50,52,53,55,58 &60)
For R72 to 75 and
78 to 80 : Mr. F. Deepak
For RR2 to 6, 9 &14 : Mr.N. Karthikeyan
(RR8,11,12,16,19,20,30,31,33,35,
37,38,40,42,44,45,51,53,56,58 ? not necessary parties)
For RR10,18,28,29,36,43,49,54,
66,69,17,18,21,23,27,31,36,41 and 43 : died
Respondent No.76 : Given up
RR 39,46,47,57,59,61 to 68,
70,71,77,81 to 87 : No appearance
Transfer A.S.No.235 of 2003
1. A. Madasamy
2. K. Ganesan Appellants
Vs.
1. Edalakudy, Parasuraman Peruntheru
Chayakaran Samudaya Trust
rep. by its Trustees.
2. A. Meenakshi Sundaram
3. L. Kumarasamy
4. S. Vandimalayan
5. S. Vandimalayan
6. S. Monickam
7. M. Sivaraj
8. K. Kumarasamy @ Gopalan Respondents
Prayer in Tr.A.S.Nos.235 of 2003: The Transfer appeal suit is filed against
the Judgment and decree dated 22.12.2000 made in O.S.No.114 of 1986, on the
file of Additional Sub Court, Nagercoil.
For appellant Mr. T.V. Ramajayam,
Senior counsel for Mr.K.P.Narayanakumar
For RR1 to 8 : No appearnce
:C O M M O N J U D G M E N T
All the three appeals are against the common judgment and decree dated 22.12.2000. By this Common Judgment, the learned Subordinate Judge, Nagercoil dismissed the O.S.No.87 of 1983, and decreed O.S.No.102 of 1983 and O.S.No.114 of 1986. A.S.No.153 of 2001 and Tr.A.S.No.235 of 2006 are filed against the Judgment decreeing O.S.No.102 of 1983 and O.S.No.114 of 1986. A.S.No.940 of 2001 is filed against the dismissal of O.S.No.87 of 1983.
2. The facts of the case:- O.S.No.87 of 1983:
1. The plaintiffs filed the above suit for
(i) framing scheme to administer the plaintiff Trust .
(ii) receiver to be appointed to manage the Trust pending Suit.
(iii) declaring sale deeds in favour of defendants 47 to 49 are void.
(iv) permanent injunction restraining defendants 16 to 20 from interfering with the management of Trust .
3. The first plaintiff, Idalakudi Parasuraman Peruntheru Trust is a private Trust . The ancestors of plaintiffs came form Dwaraka in North India five centuries ago and settled in place subsequently, called Parasuraman Peruntheru. Property in schedule 'A' and 'B' were granted by then Maharaja of Travancore Tax free. The same was confirmed on 1st Chitrai 661ME inscribed on a stone pillar and was planted on the site.
4. The original members settled at the site were represented by five founder members viz., ?Thuvar Vidumadan?, ?Thuuvar Raman?, ?Thuvar Pitchai?, ?Thuvar Kumarasamy? and ?Thuvar Sakkimuthu?. By 31st Aadi 1977 ME, the first four members purchased ?C? schedule property and built a Temple for their worship. The five members were recognised in revenue records as absolute owners of Schedule 'A' to 'C' properties. ?Thuvar? or ?Chayakkaran? of Parasuraman Peruntheru represents only those 5 persons and their family members. Apart from members of original grantees, others do not have any right to administer or manage the Trust .
5. Generally the eldest member from the members of five families manage the Trust . At present there are 18 members. Defendants 16 to 43 belong to the same community, but, are not members of five families. They came and settled down, subsequently, either due to marital ties or for business purposes.
6. Plaintiffs 2 to 4 and defendants 1 to 15 are present beneficiaries of first plaintiff Trust . Defendants 16 to 43 only lessees under Trust in respect of 'B' schedule property. Defendant 44 is a mortgagee. 45th defendant paying ground rent. 46th Defendant is under Maduvuker arrangement under Trust .
7. Defendants 16 to 20 alleged to have executed sale deeds in favour of defendants 47 to 49 for a portion of ?B? schedule property. The said sale deeds are null and void and not binding on the Trust .
8. 8th defendant is the eldest member of the families. But, he is of un-sound mind. Hence, second plaintiff, the next eldest member has been managing the Trust affairs, after the death of his father Arumugam. 'A' schedule properties are in the absolute possession or in the absolute enjoyment by plaintiffs 2 to 4 and defendants 1 to 15.
9. Defendants 16 to 43 due to their numerical strength often created trouble in the village. They have been filing objections before HR and CE Department to treat the Trust and Temple as public. The second plaintiff filed O.A.No.28 of 1975, before the Deputy Commissioner, Hindu Religious and Charitable Endowments (Admn) Department, Thirunelveli, for a declaration that Temple and Trust are private character. Defendants 26, 27,30, 34 and 40 opposed the same. The Department held that Trust is a private one. Defendants 16 to 43 are bound by the said decision.
10. Defendants 16 to 43, by show of force and practicing fraud on second plaintiff taken away all the books and movables of Trust from second plaintiff and obtained his signature by force. They have created certain records to show that second plaintiff was relieved of his Trusteeship on 19.06.1983. The malafide intention of defendants 16 to 20 could be seen from the fact that they have sold a portion of ?B? schedule properties to defendants 47 to 49. The sale deeds are void.
11. No scheme was framed or no decree was passed for proper management of the Trust , Temple and its properties. Earlier attempts made by second plaintiff's father to frame scheme ended in failure. He was administering the Trust till his death. No attempt was made by beneficiaries to draw a scheme. There is a necessity to frame scheme. Hence, the suit has been filed.
12. First plaintiff / Trust is private Trust and Section 92 of CPC is not applicable.
13. Defendants 16 to 20 are attempting to commit acts of waste. They are trying to alienate ?A? to ?C? schedule properties in favour of strangers. They have already executed sale deeds on 25.06.1983 in favour of defendants 47 to 49, alleging to sell the portion of ?B? schedule properties. In the circumstances, defendants 16 to 20 are to be restrained by an order of injunction from creating any document over ?B?and ?C? schedule properties.
14. Defendants 1 to 3, 5 to 7, 8 to 10, 20 to 22, 35 and 37 in their written statement admitted the averments made by plaintiffs. According to these defendants only descendants of original five families have right over the Trust and its properties. The other members who are descendants of persons who migrated latter and settled in various places have no right over the Trust , Temple and its properties. Those persons purchased properties of their own and constructed Temple for their worships. The members of family who migrated later did not have any union with descendants of original five families, even though they married descendants of original five families and moved to Parasuraman Peruntheru due to marriage or business purpose. The Deputy Commissioner of Hindu Religious and Charitable Endowment Department declared that Trust as private Trust in the proceedings under Section 63(a) of HR and CE Act, initiated by second plaintiff.
15. Defendants 23, 28,29,33,34,39 and 40 denied all the allegations made by plaintiffs. According to these defendants, Trust is a public Trust and the members of Chayakara community have right over the Trust and its properties. It is not correct to state that Trust is a private Trust and the properties belong only to members of five families. The original vendees are only representatives of entire community. They were important person and leaders of community. In the revenue records it has been clearly stated that properties belong to the Chayakara community.
16. Plaintiffs and defendants 1 to 15 did not have any independent right in the Trust and properties. Only male members have right over the Trust and properties. Female members do not have any right. The pedigree Table is false and it is prepared only for the purpose of the case. The Trust is being managed by Trustees elected form time to time. The allegation that second plaintiff was managing the Trust after the death of his father is denied. There is no hereditary Trusteeship. Second plaintiff was acting against interest of Trust . Several suits were initiated and conducted on the basis that Trust is a communal one.
17. Second plaintiff conducted O.A.No.28 of 1975. It is not correct to state that defendants 27,30,34 and 40 resisted. In O.A. it was decided that Trust belongs to 'Chayakara community' as a whole.
18. In 1973, a committee of five persons were elected including second plaintiff as per Udanpadi 1124 ME. He was elected as President. For some time consulted committee members. Subsequently, acted without consulting committee. He granted nominal lease to his brothers for very low amount for very long period. He sold indiscriminately approximately 3 acres of land. He mis-appropriated funds of Trust amounting to more than 5 Lakhs. He purchased properties in his name and his relatives name at Kottar and Tuticorin.
19. The entire community became violent and rose against the second plaintiff. Suit notice was issued on 13.06.1983 and election was held on 19.06.1983. Second plaintiff was present and pretended to support election. Defendants 16 to 20 were elected. Second plaintiff was removed. He agreed to hand over all the records and movables and settle all accounts. He prevailed on members as though he handed over all the records. He instigated his brother in law Ganesan to file O.S.No.399 of 1983 claiming lease hold right in respect of coconut Thope and got injunction against new Trustees. The allegation that all the books were taken by force and fraud and he was forced to sign are false. He voluntarily surrendered the office and voluntarily signed. He secreted all the records.
20. There is no necessity to frame scheme. Udanpadi 1124ME with slight modification of Udanpadi 113ME is in force and elections are conducted, as per the said Udanpadi.
21. The suit is mischievous and not bonafide. No cause of action has arisen. The suit is not maintainable.
22. On 19.06.1983, election was held as per Udanpadi 1124 ME. Defendants 16 to 20 were elected. There was no cash in the Trust . In the General Body held on 26.03.1983 defendants 16 to 20 were authorised to sell portion of land to defendants 47 to 49 to implement the object mentioned in Udanpadi 1124 ME. Out of necessity only sale was effected in favour of defendants 47 to 49 supported by consideration. Defendants 11 to 14, 31,36,38 and 43 in their written statement have stated that female members of community do not have any right in the Trust as well as the properties. Only male members were elected as Trustees from time to time. In 1974, second plaintiff and four others were elected as Trustees and second plaintiff was elected as President. The second plaintiff did not allow others to act. He created lease in favour of his brother in law. Second plaintiff did not conduct pooja and sold Trust land and mis-appropriated the same.
23. There was great unrest. In the meeting held on 19.06.1983, second plaintiff was removed and new Trustees were elected. Newly, elected Trustees are acting satisfactorily.
24. Defendants 47 to 49 in their written statement had stated that they are bonafide purchasers for valuable consideration. They were in possession for more than 45 years and had made improvements. Even before, purchase they have perfected their title by adverse possession. The General Body of Trust authorised defendants 16 to 20 to sell the properties to them. The sale is for necessity of Trust .
25. Plaintiffs filed reply statement denying various allegations made by contesting defendants. According to plaintiffs, the term Pattadaikudimakkal in the earlier records and 'Chayakara Oor vagai' in the later records represent only the original settlors namely the known five members and their descendants. Earlier revenue records represent only five families and their descendants.
26. The persons, who migrated subsequently settled in different places. They are not blood relations. The founding fathers were separate entity and the Trust is family Trust of five founding fathers. The administration of Trust has all along with been with descendants of founding fathers.
27. The settlers can be divided into two groups. One group which came before 1069 ME and others by 1124 ME.
28. Only male descendants of original five families have right, title and beneficiaries of Trust . No election was held at any point of time. Defendants 16 to 20 were not elected on 19.06.1983 and community have no right to conduct any election for electing the Trustees for a Family Private Trust .
29. In O.A.No.28 of 1975 rights of parties were finally decided. It was decided the Trust is private Trust and descendants of five family alone have right.
30. The Trust was not managed as per Udanpadi. Defendants 16 to 20 do not have any right. The alleged meeting was by force. By force defendants 16 to 20 took all the records and forced second plaintiffs to sign papers. Second plaintiff did not misappropriate any amount and he maintained proper accounts.
31. O.S.102 of 1983 (AS.940 of 2001) The first plaintiff is the Dwahapathy Vinayagar Samuthayam also called the Chayakkara Samuthayam of Parasuraman Peruntheru. Plaintiffs 2 and 3 are its members.
Suit has been filed against second plaintiff in O.S.No.87 of 1983 as first defendant and 46 others. The suit has been filed for a decree against first defendant:-
i) for realization of Rs.5,50,000/- and settlement on behalf of Samuthayam.
ii) granting injunction restraining defendants 8 to 45 from altering the condition of property by putting up any building in plaint 'D' Schedule property.
iii)Recover plaint 'D' schedule property from defendants 8 to 45.
32. According to plaintiffs, the first plaintiff Samuthayam consist of very small members living in Parasuraman Peruntheru for generations together and are related to each other. Plaintiffs 2 and 3 are members of first plaintiff Samuthayam.
33. The Samuthayam owns 4 Temples with 4 deities. They own 22 odd acres of Paddy fields described in 'A' schedule property. It yields income of 300 Kottars of Paddy per year. The paddy fields are leased out to members. It owns coconut thoppu described in 'B' schedule. It yields 3000 coconut per year. The yield of coconut varies from year to year.
34. Expenses for first plaintiff is very small only total of 51 kottars of paddy and Rs.2,240/- per year. There are vessels worth Rs.20,000/-.
35. The first plaintiff has a Constitution and is administered by a managing committee consisting of 5 members. One among them is elected as president. The community has to elect one Pradhani, who will have over all control. The term of committee members is three years. In the year 1974, 5 members were elected to the committee and first defendant was elected as President. First defendant for some time acted in consultation with committee members. Subsequently, he started acting on his own. He did not conduct daily Poojas and other ceremonies between 1976 to June 1983. He misappropriated a sum of Rs.5,50,000/-
36. First defendant alienated Trust properties for nominal amount to associates and dependants and misappropriated funds. First defendant has no power to alienate. Only small extent can be given to members for construction of houses. Defendants 8 to 45 are alieness.
37. Members of first plaintiff are thoroughly dissatisfied with the functioning of first defendant and wanted to remove him and elect new office bearers. A notice dated 13.06.1983 was issued through Advocate. A meeting was held on 19.06.1983. In the said meeting first defendant was removed from office and defendants 2 to 6 were elected as Trustees. 47th defendant was elected as Pradhani. First defendant participated in the meeting. He surrendered his Trusteeship to a newly elected Trustees. He promised to hand over all the records to newly elected Trustees. He also promised to hand over the movables and settle the accounts. He did not hand over the records and settle the accounts. The defendants 2 to 6 were more interested in securing their office. Defendants 2 to 6 did not take any steps to recover the amount misappropriated by first defendant, who handed over keys and some of the movables only.
38. In order to retain the coconut thoppu, first defendant through 7th defendant, who is his sister's husband filed O.S.No.399 of 1983 and obtained an order of injunction on the ground that coconut thop was leased to him for two years for a sum of Rs.7,000/- per year and 7th defendant has paid Rs.12,000/-. The coconut thop would fetch Rs.40,000/- per year. The property can be leased only by public auction and cannot be leased by private negotiation. The 7th defendant has no lease hold right. Only defendants 2 to 6 are in possession. In view of injunction order, 7th defendant is taking the yield from the coconut thop by force.
39. First defendant has purchased property at Tuticorin from and out of amounts misappropriated. He has constructed houses worth Rs.8,00,000/- for his brothers and sisters described in 'E' schedule. He may settle down permanently at Tuticorin.
40. The defendants 2 to 6 are not taking any steps to recover the amounts from first defendant. In the circumstances, present suit has been filed in representative capacity for entire Samuthayam.
41. According to the first defendant suit as framed is not maintainable and is hit by Section 92 of CPC. First defendant filed O.A.No.28 of 1975 before the Deputy Commissioner, HR & CE, Department (Admn), Tirunelveli under Section 63(a) of Tamil Nadu Act 22 of 1959. Plaintiffs 2 and 3 were respondents 3 and 11. In the said proceedings it has been held that first plaintiff Trust is Private Trust . Plaintiffs 2 and 3 are estopped from contending that first plaintiff is Public Trust and the suit is barred by provisions of Section 11 of Civil Procedure Code.
42. First plaintiff Trust is private family Trust . Originally belonged to 5 founder families and subsequently to their descendants. All the Chayakkarars samuthayam are not beneficiaries. Ancestors of defendants 1, 16 and 46 came from Dwaraka in North India, five Centuries ago and settled in the place which subsequently, came to be known as Parasuraman Peruntheru. The said site was granted to them by then Maharaja of Travancore. The term Samuthayam refers to only to descendants of 5 founder families. The first 4 members purchased schedule property and built the Temple for their worship. They are shown as owners in the revenue records.
43. Plaintiffs 2 and 3 are lessees of plaint schedule property along with 26 others. The descendants of founding families are in possession and enjoyment of property to an extent of 6.28 acres. They are not bound to pay any rent. Other lands are in possession and enjoyment of lessees including plaintiffs 2 and 3. Coconut thoppu fetches Rs.7,000/- per year.
44. There is no constitution for first plaintiff Trust . First defendant was managing the Trust properly. There was no complaint against the first defendant. The alleged meeting was fraud played on the real beneficiaries by numerical strength, plaintiffs and others obtained signature of first defendant. They took all the records and destroyed the same. The plaintiffs 2 and 3 have no right to seek accounts from first defendant. The alienations by first defendant are for necessity. The amounts were spent for improving the properties. First defendant has not misappropriated any amount. The statement of account furnished by plaintiffs are imaginary.
45. Plaintiffs and others came and settled down long after creation of Trust . They came and settled down either due to marriage or for business purpose. They have no right or interest in the suit Trust properties. First defendant has furnished true statement.
46. Defendants 2,3,5,6 and 47 in their written statement stated that they along with 4th defendant were elected as managing committee members by the members of the community in the election held on 19.06.1983 and from that date they are only managing the Trust . Fourth defendant was elected as President. They also stated that first defendant misappropriated Rs.5,00,000/- and more. The administration of first defendant from 1976 to June 1983 was illegal as he acted without consulting the committee members. He was removed in the meeting held on 19.06.1983. Steps have to be taken against first defendant for accounts and movables. Notice was issued to first defendant and he sent a reply making statements contrary to truth.
47. Fourth defendant in his written statement stated that he is not related to defendants 1,16 and 46. His ancestors settled down in Colachal village about 18 miles, where the plaintiffs and his ancestors settled. Plaintiffs were making persistent attempts to claim right in Trust properties. Second defendant and his associates took leading part claiming right in Trust properties. Fourth defendant without understanding the truth about rights of parties signed certain proceedings.
48. 7th defendant in his written statement stated that he is the lessee of 'B' schedule property on a annual lease amount of Rs.7,000/-, he paid Rs.12,000/- and balance of Rs.2,000/- to be paid on or before 15.05.1982. His term as lessee expires only on 15.05.1984. The defendants 2 to 6 attempted to interfere with his possession and enjoyment. He filed O.S.No.399 of 1983 on the file of the District Munsif and obtained an order of injunction. The property belongs to first plaintiff Trust and it is a private Trust.
49. The defendants 9,11,15,16,23,25,26,27,28,29,30,33 and 45 in their written statements have stated that they are bonafide purchasers for valuable consideration and made improvements. 26th defendant have already alienated the property. Before first defendant, his father was managing the Trust properties. Trust has proper power to alienate. Plaintiffs and others knew about alienation for past many years. The suit is ill-motivated.
50. The 46th defendant in the written statement stated that he belongs to 5 families migrated from Dwaraka and governed by Mitakshra law. Others apart from descendants of original 5 families migrated at different times and settled at different places. They own different properties and established their own places of worship. They are not blood relations of descendants of 5 families. Plaintiffs 2 and 3, defendants 2 to 15,17 to 48 and 47 do not have any claim over Trust properties. Earlier proceedings initiated by them are not binding on defendants 1,16 and 46. In the proceedings under Section 63(a) of HR & CE Act, first plaintiff was declared private Trust .
51. The 53rd defendant adopted the written statement of second defendant.
52. Defendants 54 to 57 in the written statement stated that suit is not maintainable and hit the provisions of Section 11 of CPC. The plaintiffs 2 and 3 have no right to represent first plaintiff Trust , which was declared as Private Trust. Father of defendants 55 to 57 purchased properties and they are bonafide purchasers. The sale consideration was utilized to settle the debt of Trust . They have improved the property and paying revenue tax. Plaintiffs 2 and 3 cannot claim mesne profit. Suit is barred by limitation. Plaintiffs 2 and 3 cannot claim first plaintiff is a public Trust .
53. O.S.No.114 of 1986:
(i) This suit is filed by ?Idalakudi Parasuraman Peruntheru Chayakkara Samuthaya Trust as first plaintiff and Trustees of the said Trust as plaintiffs 2 to 6. The 7th plaintiff was subsequently impleaded. The suit is for recovery of plaint properties from defendants and for future profit of Rs.30,000/- p.a., till recovery and a decree for Rs.90,000/- being past arrears.
(ii) According to plaintiffs, plaint properties belong to first plaintiff Trust . The plaintiffs 2 to 5 were elected as Trustees on 19.06.1983 and 6th plaintiff was elected later. Before electing plaintiffs 2 to 6, first defendant was functioning as sole Trustee. He misappropriated more than Rs.5,50,000/-. There was great agitation in Samuthayam and there was an action to remove the first defendant and elect new Trustees. First defendant in order to prevent new Trustees to take possession of suit properties created a lease transaction in favour of second defendant ante dating lease date as 15.08.1982 for two years rent at Rs.7,000/- per year.
First defendant filed O.S.No.399 of 1983 in the name of second defendant and got an order of injunction. The alleged lease is bogus and statement that Rs.12,000/- paid is false. The alleged lease period of two years was over on 15.08.1984. The property will yield a pattam of Rs. 30,000/- per year. In view of injunction order, defendants are continuing in possession. Possession of defendants is wrong. Plaintiffs are entitled to collect yield from 19.06.1983 and they are entitled to recover the property from defendants with future profit at the rate of Rs.30,000/- per year.
(iii) The second defendant in his written statement denied that plaintiffs 2 to 6 were elected as Trustees, they do not have not any locus standi to be elected. They have to prove that they were elected as Trustees in a meeting duly constituted by members of Trust . The lease was properly executed, legally valid and binding on first plaintiff. The lease is not bogus lease and payment of Rs.12,000/- is true. It is not correct to state that first defendant is in possession of suit property and he did not file O.S.No.399 of 1983. The second defendant is statutory tenant entitled to Tamil Nadu cultivating Tenants Protection Act 1955 and Tamil Nadu Public Trust Regulations of Agricultural Lands Act, 1961. The property will not get Rs.30,000/- per year. Plaintiffs 2 to 6 are not entitled to collect yield from 19.06.1983 and recover the property from the second defendant. Plaintiffs 2 to 6 tried to interfere with possession of second defendant. He filed O.S.No.399 of 1983 and obtained an order of injunction. Plaintiffs 2 to 6 filed CMA No.24 of 1983 before District Court, Nagercoil. The same was dismissed. They filed CRP No.2511 of 1984 in this Court, which was also dismissed. This Court, on representation by counsel for plaintiffs 2 to 6 ordered that second defendant should pluck coconut from suit property only with the permission of Trial Court. As per said order, second defendant filed Interlocutory Application in O.S.No.399 of 1983. No order was passed. The second defendant is unable to get the yield and is loosing Rs.10,000/- per year. He filed O.S.No.723 of 1985 before District Munsif Court, Nagercoil against the plaintiffs 1 to 6. The first defendant and others for a declaratory decree and to permit him to deposit the lease amount and to be continued in possession. Both suits were ordered to be tried jointly. Suit as framed is not maintainable and bad for mis-joinder and non-joinder of parties. The suit is pre mature and frivolous.
54. Based on these pleadings, Trial Court framed issues in each case. A Joint Trial was conducted and common evidence was let in O.S.No.102 of 1983. On behalf of plaintiffs P.Ws.1 to 4 were examined and Ex.P.1 to P31 were marked. On behalf of the defendants D.Ws.1 and 2 were examined and Ex.B1 to B114 were marked. Ex.C1 and Ex.C2 were marked as Court Exhibits.
55. The learned Sub Judge considering the pleadings and evidence, both oral and documentary, dismissed the O.S.No.87 of 1983 and decreed O.S.No.102 of 1983 and O.S.No.104 of 1986. Against the common judgment and decree dated 22.12.2000, these three first appeals are filed.
56. The learned counsel for the appellant contended that:-
i)the learned Sub Judge misunderstood the entire issue. The respondents have mislead the learned Judge.
ii) Schedule 'A' and 'B' properties in O.S.No.87 of 1983 was granted to five founder members by then Mahararaja of Travancore. Only the descendants of said five founder members have title over the said properties. They are only beneficiaries. Others do not have any right over the said properties and they are not beneficiaries.
iii) Apart from the 5 founder members, who migrated Dwaraka five centuries ago some others also migrated from Dwaraka in different point of time. They settled at various other places. They purchased properties. They constructed Temples for their worship.
iv)Persons, who subsequently migrated are not blood relations of original five founder members.
(v) Some of the persons, who migrated later came to reside along with descendants of original migrated persons due to marriage or due to business purpose. But there was no union and those persons did not acquire any title or interest in Schedule 'A' and 'B' properties.
vi)'C' schedule property was purchased by the family of founder members to establish Temples. In the said land Temples were constructed. It is a private land.
Vii) When action was taken and management of Temples were tried to be interfered with, second plaintiff in O.S.No.87 of 1983 filed O.A.No.28 of 1975 before the Deputy Commissioner (Admn) of HR & CE, Department, Tirunelveli. The defendants 26, 27, 34 and 40 opposed the same. The Deputy Commissioner held that it is a private Temple.
Viii) There is no written constitution for first plaintiff Trust . The Trust and Temples and properties are managed by eldest male members of descendants of five founder families.
(ix) The community people have no right to formulate an Udanpadi for management of properties as the properties are private properties.
(x) The said Udanpadi was not acted upon. In any event it mentions only about the Temple. It does not relate to properties belonging to the Trust .
xi) At no point of time any election was held to the said Trust . No election as alleged by defendants 16 to 20 was held on 19.06.1983. The said defendants by force took the signature of second plaintiff and created documents. They took all the records, accounts and movable properties.
(xii) For the notice issued by defendants suitable reply was sent.
xiii) In all the revenue records, the names of five founder members only were shown as owners.
xiv)The term Chayakara community refers to the family members of five founder members only.
xv) The community people have no right to frame any Udanpadi even for the 'C' schedule property as the said property belongs to private parties namely descendants of five founder members.
57. The learned Senior counsel for the appellant relied on the following Judgments:-
(i) AIR 1999 SC 2216, (Arumugham (dead) by L.Rs.and others Vs.V. Sundarambal and another) relevant para, 16 read as follows:-
16. On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec.100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether. In the present case both sides had adduced oral as well as documentary evidence and therefore, even assuming that it was erroneous for the lower appellate Court to say that the burden of proof lay on the first defendant to prove that the plaintiff was not the son of the Haritheertham, that would not,in our opinion, have any material bearing on the conclusion reached by the lower appellate Court. The appellate Court had considered the oral and documentary evidence adduced on both sides and preferred to accept the evidence adduced on the side of the defendants. In fact,reading the Judgment of the High Court, we are left with the impression that the High Court thought that it was dealing with the case if it was a first appeal. Therefore, for the reasons given above, the judgment of the High Court cannot be sustained and the same is accordingly set aside. The Judgment of the lower appellate Court is restored.?
(ii) 2005(4) CTC 241, (K. Gopan Vs. The State of Tamil Nadu re. By its Chief Secretary, Fort St. George, Chennai and others) relevant para, 27 read as follows:-
27. In our opinion, Katapanchayatdars are nothing but mafia and hooligans and Katapanchayat is simply taking the law in to one's own hands by some goondas, who unlawfully claim to represent the village.
(iii) AIR 1973(1) MLJ SC 43, (T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras) relevant paras, 13 and 15 read as follows:-
13. At this stage the provisions of Section 9(12) of the Madras Act (II of 1927) which defines a temple may be noticed. According to that definition it is a place by whatever designation known used as a palce of public religious worship and dedicated or used as of right by the Hindu Community or any section thereof as a place of public religious worship. In the Madras Hindu Religious and Charitable Endowments Act (XXII of 1959) the definition of 'temple' is given in sub-clause (2) of section 6. It is particularly in the same terms as in the earlier Act.
15. It is significant that the High Court did not attach sufficient importance to three matters which, in the present case, were of material consequence. The first was that the origin of the mandapam had been proved to be private. The second was that its management had remained throughout in the members of the Thoguluva family. The third was the absence of any endowed property. There was no gopuram or dwajasthamba nor a nagara, bell nor hundial in the suit temple. The learned District Judge adverted to the evidence on all these and other relevant matters and we concur with him in his conclusions.
(iv) 1999(3) MLJ 465, (Sellambana Gounder and others Vs. Sinnia Gounder and others) relevant para, 7 read as follows:-
7. The Point: The plaintiff would contend that the properties were divided by metes and bounds and the plaintiff is in possession of definite and specific shares in the items of the property. The plaintiff has produced only patta book, which has been marked as Ex.A1. Besides filing the patta, the plaintiff has not produced any other document to establish his contention. The patta is neither a document of title nor it can be accepted to up held the title. It is a best an evidence for permanent of kist and thus there is nothing but a bill of cost. The other documents produced by the plaintiff are not helpful to the plaintiff to establish his case.
58. Per contra, the learned counsel for the respondents/defendants contended that;-
i) the properties granted by then Maharaja of Travancore was for the entire community people. The names of five persons were mentioned as they were important people and leaders of the community.
ii) In the revenue records, it has been mentioned 'community' 'Oorvagai'.
iii) The 'C' schedule property was purchased by contribution of community people.
iv) there is no necessity for framing scheme for the management of Trust. With slight modification 113 ME Udanpadi, a Udanpadi of 1124 ME is in force. As per the then Udanpadi, the Trustees are elected and Trust is being managed.
v) in the year 1974 a committee was elected and second plaintiff was elected as President. For some time, he acted in consultation with other committee members. From 1976 onwards he started acting without consultation of other committee members.
vi)the second plaintiff misappropriated monies of Trust to the tune of Rs.5,50,000/- and purchased properties at Kottar and Tuticorin in his name and in the name of his associates and relatives.
(vii) He created a bogus lease in favour of his brother-in-law Ganesan second defendant in O.S.No.114 of 1986 fixing a very low lease amount.
(viii) He sold approximately 3 acres of Trust properties and misappropriated the amount.
ix)Due to his mis-management there was uproar in the Community and people wanted to remove him from the post. A notice was issued on 13.06.1983 through Advocate. General Body meeting was held on 19.06.1983. In the said meeting second plaintiff was removed. The defendants 16 to 20 were elected. The 45th defendant was elected as President.
(x) The second plaintiff participated in the meeting and signed the proceedings. He agreed to hand over records, accounts and movables. He agreed to settle the accounts. But failed to do so.
(xi) The allegation that there was no election on 16.09.1983, that defendants 16 to 20 were not elected, that signature of 2nd plaintiff was taken by force and defendants 16 to 20 took all the records and accounts and destroyed, are denied.
(xii) The learned Subordinate Judge has considered the pleadings, evidence and arguments in proper perspective and by giving cogent and valid reasons, has passed the Judgment, which is as per law.
59.The learned counsel for the contesting respondents relied on the following Judgments:-
(i) 1996(2)LW 817, (Zohra Yacub and 5 others Vs. M/s. Hindustan Petroleum Corporation Limited and another) relevant para, 15 read as follows:-
In AIR 1960 SC 941 (Satyadhyan V. Smt. Deorajin Debi), it was held thus:-
?The principle of res judicata is based on the need o giving a finality of judicial decisions, what it says is that once res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter ? whether on a question of fact or a question of law ? has been decided between two parties in one suit or proceeding and the decision is final, wither because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S-11 of the Code of Civil Procedure, but even where S.1 does not apply the principle of res judicta has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.
The principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings?.
Therefore, prayed for dismissal of the appeals.
60. The following points arises for consideration in these appeals:-
i) Whether the Trust is a public Trust or private Trust .
ii)Whether there is any constitution for the management of Trust .
iii)Whether Udanpadi of 1124 ME is valid and whether Trustees or committee members are to be elected as per terms of Udanpadi for the management of Trust .
iv)Whether Udanpadi 1124 ME relates only to management of Temples OR to management of properties described in schedule 'A' 'B' and 'C' of plaint in O.S.No.87 of 1983 and whether the temple is a private Temple or public Temple.
v)Whether the properties belong to entire Chayakara community or it belongs only to descendants of five founder members.
vi)Whether any election was held as per Udanpadi 1124 ME at any point of time especially in 1974 and 19.06.1983.
vii)Whether second plaintiff has misappropriated the funds of Trust and whether second plaintiff is liable to submit accounts to defendants 16 to
20.
(viii) Whether second plaintiff has created bogus lease in favour of his brother-in-law Ganesan, second defendant in O.S.No.114 of 1986.
61. Point Nos.1,2 and 3:-
The contention of the appellants is that their ancestors migrated from Dwaraka in North India Five Centuries ago. The place where they settled down, subsequently, came to be known as ?Parasuraman Peruntheru?. The then Maharaja of Travancore granted 'A' and 'B' schedule properties free of Tax to them evidenced by Ex.B23, copy of Stone inscription installed in the place. Subsequently, one more family was included to be beneficiaries of the said grant. As per Ex.B23, the five families and their descendants are the beneficiaries. The ancestors of contesting respondents migrated, subsequently, and settled down at different places. They purchased various properties, constructed Temples for their worship. They are not blood relations of descendants of original founder persons. Some of the descendants of subsequent migrated persons came to reside at Parasuraman Peruntheru, due to marriage ties or for business purpose. They did not acquire any interest or title to schedules 'A' and 'B' properties and they were not beneficiaries of the said properties. In the circumstances, the contesting respondents who are descendants of subsequent migrants are not beneficiaries of schedules 'A' and 'B' properties. Schedule 'C' property was purchased in Ex.B26, by the original founder families from and out of their own funds and constructed Temple for their worship. They purchased the land and constructed Temple as local people treated them as low caste and did not allow them to worship in their Temples. There is no constitution for management of schedules 'A', 'B' and 'C' properties. The term of 'Pattadaikaran community', 'Chayakara Oor vagai' etc., relates only to the descendants of five original families and descendants of subsequent migrants do not belong to this community. Only male descendants of original five families are members of Trust, which is a private Trust . The eldest member of descendants of original family became Trustee and he only managed the Trust .
62. The contention of the learned counsel for the contesting respondents is that the five persons mentioned in the stone pillar Ex.B23, were the leaders of community, at that time and hence, their names were mentioned. They represented the entire community and the contentions of appellants that descendants of original migrants are only beneficiaries and descendants of subsequent migrants are only lessees and not beneficiaries of schedule 'A', 'B' and 'C' properties are baseless and not correct. All the descendants of migrants from Dwaraka irrespective of time of migration and residing at Parasuraman Peruntheru are members of Chayakkara Community. In all the revenue records it has been mentioned as 'Chayakkara Oor vagai' etc., Just because the elders at the time of grant by Maharaja of Travancore being mentioned in grant will not make it their absolute property and only their descendants are beneficiaries. All the people of community are beneficiaries. Trustees are elected as per Ex.A1 Udanpadi. They managed properties mentioned in 'A', 'B' and 'C' schedules.
63. The contentions of learned counsel for the contesting respondents that all the people residing at Parasuraman Peruntheru are members of Chayakkara Community and they are beneficiaries of 'A', 'B' and 'C' schedule properties are contrary to facts.
64. Admittedly, people from Dwaraka migrated at different times and settled down at various places. They purchased properties and constructed Temples. They are not blood relations of original migrants, who settled down at Parasuraman Peruntheru. The schedule 'A' and 'B' properties were given as Tax free grant by then Maharaja of Travancore. In the grant four names has been mentioned as grantees and that their descendants to enjoy the properties. The forefathers of contesting respondents are not descendants of original founder families. They have not settled down at Parasuraman Peruntheru after migrating from Dwaraka. They settled down at different places. They acquired properties of their own and constructed Temples for their worship. They are not blood relations of descendants of original founder families. They started living in Parasuraman Peruntheru either due to marriage ties or due to business purposes. This will not make them members of Chayakkara Community residing at that place. The contention of the appellants that only the descendants of original founder families are beneficiaries, has considerable force, in view of Ex.B23 copy of the stone pillar evidencing the grant. The grant relates to schedule 'A' and 'B' properties. As far as 'C' schedule property is concerned the said property was purchased by members of original founder families. The contesting respondents have stated that entire community people contributed to purchase 'C' schedule properties. No iota of evidence was produced to substantiate this claim.
65. Pws.1, 2 and 3 have deposed with regard to Temple and Udanpadi. According to them as per Udanpadi, the Trust and properties in schedules 'A', 'B' and 'C' are managed by Trustees, elected as per terms of Udanpadi. A reading of Ex.A1 Udanpadi reveals that it relates to Management of Temple and its properties. It does not relate to schedule 'A' and 'B' properties. The issue whether Temple is private Temple or public Temple was considered by Deputy Commissioner, (HR and CE) Department. Some of the contesting respondents were parties to the said proceedings. They contended before the Deputy Commissioner that Temple and its properties belonged to entire community. The Deputy Commissioner, after considering all the materials held that the Temple and its properties are private in nature belonging to the descendants of original founder families. The said order was not challenged by contesting respondents and thus the order has become final.
66. The contesting respondents failed to prove that even though their ancestors migrated at later point of time they are blood relations of original migrants. They have not denied that their ancestors settled down at different places and acquired properties and constructed Temples and worshipped therein. They are residing in Parasuraman Peruntheru only due to marriage ties or due to business purpose. Just because they have started living in Parasuraman Peruntheru will not make them members of Chayakkara Community living in that places. Further, PW.1 himself has admitted that he is not descendant of original founder families and that he is not a beneficiary of schedule 'A' and 'B' properties. The contesting respondents have failed to prove that the moment descendants of migrants of Dwaraka starts living in Parasuraman Peruntheru, they become member of that community.
67. The appellants have stated that there is no constitution for the Trust and prayed for framing of scheme for a management of Trust . The contesting respondents opposed the same, on the ground that community people have Udanpadi, which formulated the method to elect Trustees and their term to manage 'A', 'B' and 'C' schedule properties.
68. A reading of Ex.A1 ? Udanpadi reveals that it relates to Temple and its properties. It does not relate to Trust or its properties. Further, the Deputy Commissioner HR and CE Department, held that Temple is a private Temple. In view of the said order, which become final, the Udanpadi framed by villages is not valid. The counsel for contesting respondents have contended that there was already a suit for framing scheme in O.S.No.14/1115 ME on the file of District Court, Nagercoil and affairs of Trust are being administered by provisions of the scheme framed therein and any modification or alteration can be done only by District Court which framed the scheme decree an earlier occasion.
69. The contesting respondents have not produced the scheme said to have been framed in O.S.No.14/1115 ME on the file of District Court, Nagercoil. It is the specific case of contesting respondents that the schedule 'A', 'B' and 'C' are managed, as per the provisions of Udanpadi. Having come out such a specific case, it is not open to the contesting respondents to now allege that a scheme has already been framed by District Court, Nagercoil.
70. For the above reasons, I hold that ;
(A) Trust in question is a private Trust .
(B) there is no constitution for management of Trust .
(C) The schedule 'A', 'B' and 'C' properties belong only to descendants of original founder families and they are only descendants from Chayakkara Community.
Points 1, 2 and 3 are answered accordingly.
71. Points 4, 5 and 6:-
The learned Senior Counsel appearing for the appellants contended that Udanpadi Ex.A1 relied on by contesting respondents is not valid. Apart from descendants of original families others residing at Parasuraman Peruntheru have no right to formulate Udanpadi and hence, it is not binding on the descendants. In any event it relates only to management of Temple and its properties. It does not relate to schedule 'A' and 'B' properties. Udanpadi was not acted upon at any point of time and election was not held to elect the Trustees. Only, the eldest male member of descendants of five families acted as Trustee. The second appellant's father was managing the properties and after his death the second appellant is managing the properties as Trustee.
72. The Temple is a private Temple belonging to descendants of five families only. This issue was considered by Deputy Commissioner, HR and CE Department, Thirunelveli in O.A.No.28 of 1975. The defendants 26,27,30, 34 and 40 and other respondents were parties in proceedings and they contended that the Temple is a public Temple belonging to all the people living in Parasuraman Peruntheru. The Deputy Commissioner, HR and CE Department, rejected their contentions and held that Temple is a private Temple and the properties are private properties.
73. Per contra, the learned counsel for the contesting respondents contended that all the descendants of migrants from Dwaraka irrespective of period of migration contributed to purchase 'C' schedule land and to construct the Temple. The Temple and its properties belong to all the descendants of migrants from Dwaraka. In view of this fact only, Ex-A1, Udanpadi was formulated by people of community. From its inception, Trustees are elected as per the terms of Ex.A1 Udanpadi. The elected Trustees managed the Temple affairs and schedule 'A', 'B' and 'C' properties.
74. The contentions of counsel for contesting respondents are not tenable. The contesting respondents have not produced any evidence to show that apart from five family families others also contributed for the purchase of property in schedule 'C'. In the absence of any such proof the contentions of the appellants that only members of founding families purchased 'C' schedule property and constructed Temple is the only conclusion that can be arrived at has considerable force. Further, the issue whether the Temple is a private Temple or public Temple was considered by competent authority viz., Deputy Commissioner, HR and CE Department, Thirunelveli. The Deputy Commissioner considering the materials produced before him held that there is no public worship in the temple and it is not open to public. In the circumstances, the Judgment reported in AIR 1973(1) MLJ SC 43, (T.D. Gopalan Vs. The Commissioner of Hindu Religious and Charitable Endowments, Madras), relied on by the learned Senior Counsel for the appellants squarely applicable to the facts of the present case. The Deputy Commissioner by elaborate order dated 10.06.1978 marked Ex.A4 held that Temple is a private Temple. In view of this finding 'C' schedule property is also a private property belonging to the private Temple.
75. The contesting respondents also failed to prove that elections were held as per Udanpadi, Ex.A1 and that persons apart from descendants of original five families also were elected as Trustees. The appellants specific case is that no election was held at any point of time to elect Trustees and only the eldest male member from among descendants of five families became the Trustee and managed schedule 'A', 'B' and 'C' schedule properties. To substantiate this contention, second appellant has deposed that his father was Trustee till his death and after death of his father, he became Trustee. He also denied that election took place in the year 1974 as alleged by contesting respondents. Having made a statement that election took place in the year 1974, the onus is on the contesting respondents to prove the same. They have not produced any evidence to show that election took place in the year 1974. The contention of contesting respondents that Trustees were elected as per Ex.A1 Udanpadi has to be rejected as even according to them, that term of Trustee is only three years. They admit that second appellant was elected in the election held in the year 1974. As per Ex.A1, his term and terms of other Trustees expired in the year 1977. But, no election was held according to them till 1983. Having alleged that second appellant acted without consultation of other Trustees within one year of being elected and was mismanaging the Trust , the contesting respondents have not explained as to why they did not take any action for more than eight years till 1983 and why they did not take steps immediately after the expiry of terms of second appellant and other Trustees.
76. The learned Subordinate Judge taking into consideration Ex.A6 to Ex.A9 held that Trustees were managing 'A', 'B' and 'C' schedule properties. The learned Subordinate Judge failed to see that there is nothing on record to show that those Trustees were elected as per Ex.A1 and that apart from descendants of five families were also elected as Trustees. The learned Subordinate Judge has not given any finding that the contention of appellants and others that eldest male member of five founder families became Trustee is not correct.
77. As far as the election in the year 1983, PW.1 has deposed that he did not go along with others to meet advocate to issue notice dated 13.06.1983 (Ex.A2, Ex.B2 and Ex.B91). He also admitted that he did not attend meeting held on 19.06.1983 to elect the Trustees. In view of this evidence of PW.1 it cannot be concluded that meeting was held on 19.06.1983 and new Trustees were elected after removing the second appellant from Trusteeship. Another aspect to reject the evidence of PW.1 is that he did not know about the meeting alleged to have been held on 19.06.1983 and what transpired in the said meeting. PW.3 admitted that he and others were prosecuted for entering into the house of second appellant and threatening him. He also deposed that he admitted his guilt. He also stated that 38 families residing at South Street in Parasuraman Peruntheru are not beneficiaries of Trust .
78. The contesting respondents have contended that second appellant attended meeting held on 19.06.1983 and participated in the election process. In the meeting he was removed from the post and new Trustees were elected. He signed the documents and handed over certain records and articles. He promised to hand over all other records and articles belonging to the Trust. Believing the said representation and promise, elected Trustees gave an acknowledgment to the fact that second appellant handed over all the articles and records. This contention of learned counsel for the contesting respondents is unbelievable and untenable. Even according to contesting respondents second appellant acted in an arbitrary manner, mis-appropriated huge funds of Trust and used the mis-appropriated funds to purchase properties in his name and in the names of his relatives and friends.
79. According to the contesting respondents the entire community rose against the second appellant and that was the reason for issuing notice to second appellant and conducting meeting on 19.06.1983 and electing new Trustees. In this background the claim of contesting respondents that without receiving records and articles they gave acknowledgment as though they received the records and articles is not acceptable. The evidence of PWs.1 to 3 do not prove that meeting was held on 19.06.1983. PW.3 had admitted that criminal case had been initiated against him and others, for entering the house of second appellant and he admitted his guilt.
80. On the other hand, the contentions of learned senior counsel for the appellants that no meeting was held on 19.06.1983 and that second appellant's signature was taken by force and that all the records and articles were taken by force by contesting respondents are acceptable.
81. The contesting respondents are relying on Revenue records and contend that the properties belong to entire community. It is well settled that patta is not a title of property. In Para. 7 of the Judgment of this Court reported in 1999(3) MLJ 465, (Sellambana Gounder and others Vs. Sinnia Gounder and others) relied on by learned Senior Counsel for the appellants, applies to the facts of the present case in all four corners. The appellants have relied on stone pillar to prove the grant to their ancestors and document to prove purchase of ?C? schedule property by their ancestors. Contrary to these documents, the contesting respondents are relying on only Revenue records. In view of the Judgment referred to above and other judgments of this Court and Hon'ble Apex Court in this issue, I hold that contesting respondents cannot claim right over ?A?, ?B? and ?C? schedule properties, based on Revenue records only.
82. The learned Senior Counsel for the appellants, referred to Para 16 of Judgment reported in AIR 1999 SC 2216, (Arumugham (dead) by L.Rs.and others Vs.V. Sundarambal and another) and contend that when the parties have let in oral and documentary evidence, the Court must consider, appreciate and give a finding accepting or rejecting the evidence, let in by a party. After evidence, being let in, question of burden of proof does not arise. This contention is well founded. The learned Judge failed to appreciate the evidence and materials on record in the proper perspective and the reasons given by learned Subordinate Judge in this regard are not valid. The learned Judge failed to consider the criminal proceedings and reply notice dated 18.07.1983, Ex.B92 sent by second appellant. For the above reasons finding of the learned Subordinate Judge on these points are set aside.
83. For the above reasons, I am inclined to accept the contentions of appellants that Udanpadi, Ex.A1 is not valid and in any event not acted upon and the descendants of original five founder families are only owners of schedule 'C' property and the Temple and its properties are private properties. The learned counsel for the contesting respondents referred to Para 15 of the Judgment reported in 1996(2)LW 817, (Zohra Yacub and 5 others Vs. M/s. Hindustan Petroleum Corporation Limited and another) which relates to the question of Res judicata. The Judgment does not advance their case. The Deputy Commissioner, HR and CE Department, Thirunelveli, considered the facts on merits and held that temple is a private temple. The said order has become final. The contesting respondents were parties to the said proceedings. Hence, they cannot re-agitate the same in the Civil Proceedings. The claim of the contesting respondents that temple and ?C? schedule properties are public properties are hit by principles of Res judicata.
The points 4,5 and 6 answered accordingly.
84. Points 7 and 8:
The contesting respondents have stated that second appellant had mis- appropriated huge amount of Rs.5,50,000/- and purchased the properties in his name and in the name of his relatives and friends. At the same time, they have stated that second appellant failed to handover the records. Without any record they have stated that second appellant had mis-appropriated the amounts. For these reason the statement of account mentioned in Para.22 of plaint in O.S.No.102 of 1983, cannot be relied on to hold that second appellant had mis-appropriated amounts. The contesting respondents have also stated that second appellant had leased out coconut Thope to his brother in law Ganesan, for meagre amount of Rs.14,000/-, whereas the yield from coconut Thope would be Rs.30,000/- per year. The said Ganesan had filed O.S.No.399 of 1983, restraining the contesting respondents from interfering with his possession and enjoyment of the coconut Thope. The injunction granted by District Munsif was confirmed by the Appellate Court and subsequently, by this Court. The contesting respondents have failed to prove the allegation that coconut thope would yield Rs.30,000/- per year and that second appellant leased out the property for a meagre amount and antedate the lease.
Accordingly, points 7 and 8 are answered against contesting respondents.
85. One of relief prayed for by the appellants in O.S.No.87 of 1993 is 'declaring the sale deeds in favour of defendants 47 to 49 are void. The contesting respondents while alleged to be Trustees of Trust authorised by Resolution in General Body to sell the properties to defendants 47 to 49. Based on the Resolution, the sale deeds were executed and the said defendants were put in possession of the properties. The said defendants are bonafide purchasers for valuable consideration. They should not be penalised due to dispute between the appellants and contesting respondents. For this reason, I hold that appellants are not entitled to said relief.
86. In the result, all the three appeals are allowed. The Common Judgment and Decree of learned Judge dated 22.12.2000 made in O.S.No.87 of 1983, O.S.No.102 of 1983 and O.S.No.114 of 1986 are set aside. O.S.No.102 of 1983 and O.S.No.114 of 1986 are dismissed. O.S.No.87 of 1983 is remanded to learned Subordinate Judge, Nagercoil, with a direction to;
(a) frame a scheme for appointment / election of Trustees to manage the affairs of Trust and Temple and its properties from among the descendants of original five founder family members only as this Court has held that only they are beneficiaries.
(b) to appoint a receiver to take charge of records, properties and articles belonging to the Trust and Temple and manage the same till a scheme has been framed and Trustees are appointed / elected.
(c) the appellants and respondents are directed to handover all the records, properties and articles in their possession belonging to the Trust and Temple to the Advocate Receiver.
(d) allegations of mis-appropriation and leasing out coconut thope had been made against second appellant. The Receiver is directed to enquire into this allegation. If receiver comes to conclusion that second appellant has mis-appropriated funds or leased out coconut Thope for meagre amount, the Receiver is empowered to recover the same from the second appellant and lessee and credit the same to the account of Trust .
(e) the learned Judge is directed to complete entire process within six months from the date of receipt of copy of this Judgment.
(f) the Suit in respect of declaration of sale deeds in favour of defendants 47 to 49 is dismissed.
(g) parties are directed to bear their respective costs.
(h) the Registry is directed to send back all the records received from Sub Court along with copy of this Judgment.
Consequently, connected Miscellaneous Petitions are closed.
To The Additional Sub Court, Nagercoil.