Madras High Court
Balasubramani vs D.Navajeejan on 12 June, 2018
Equivalent citations: AIRONLINE 2018 MAD 1403
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 12.06.2018
Reserved on: 21.02.2018
Delivered on: 12.06.2018
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
A.S.(MD)No.208 of 2009
and
M.P.(MD)No.1 of 2009
1.Balasubramani
2.Prabhakar
3.Chitra
4.S.Ramiah .. Appellants/Defendants 2 to 5
Vs.
1.D.Navajeejan
2.C.Harvey Durai .. Respondents / Plaintiffs
PRAYER: Appeal filed under Section 96 of the Civil Procedure Code, to set
aside the judgment and decree dated 23.09.2008 made in O.S.No.447 of 2004 on
the file of the Additional District Court (Fast Track Court-II), Madurai.
!For Appellants :Mr.S.Manohar
^For Respondents :Mr.J.Barathan
:JUDGMENT
Defendants 2 to 5 in the suit in O.S.No.447 of 2004 on the file of the Additional District Court (Fast Track Court-II), Madurai, are the appellants in this appeal.
2.The respondents in this appeal, as plaintiffs, filed suit in O.S.No.447 of 2004 before the Additional District Court (Fast Track Court- II), Madurai, for the following reliefs:
(a)for appointing new trustees in the vacancies in the Trust Board of ?Chinthanaiyalargal Uruvakka Uthavum P.V.D. Trust?;
(b)for framing a scheme for the best management of the trust;
(c)for directing the defendants 3 and 4 to surrender the items 6 and 7 of the schedule properties purchased in their name out of the trust amount;
(d)for directing the third defendant to render true and proper accounts of the trust; and
(e)for granting a permanent injunction restraining the defendants 3 and 4 and their men from interfering with the administration of the trust.
3.The brief averments set out in the plaint are as follows:
3.1.?Chinthanaiyalargal Uruvakka Uthavum P.V.D. Trust? (hereinafter referred to as ?trust? for brevity) was founded by the first plaintiff's father P.V.Durairaj, son of Venkatarama Reddiar with the object to promote intellectual thoughts and to educate the working class and youth of this country. He wanted to propagate the Marxist ideologies among the younger generation. Since the Founder of the trust had a dream of forming egalitarian society with all round development in the fields of Science, Education, Health, Politics, Economics and National Integrity with international out look, he formed the said trust with that objects vide trust deed, dated 14.09.1990. Mr.P.V.Durairaj, is the Author and Founder of the trust.
3.2.The Founder of the trust appointed the first plaintiff as one of the Trustees, while executing trust deed. The second plaintiff is closely associated with the family of the Founder and he has also very much interested in the better management of the trust. After the formation of the trust, the Founder of the trust purchased some properties in the name of the trust, which are described as Items 1 to 5 and he has also purchased Items 6 and 7 of the suit properties in the name of third and fourth defendants.
While forming the trust, the Founder appointed himself as the Managing Life Trustee and nominated the first plaintiff, Mr.S.Raghavan Mr.P.M.K.Ramasamy, Mr.Sithamman (first defendant), Mr.V.Balasubramani (second defendant) and Mr.N.M.Sundaram as trustees and members of the Trust Board 3.3.As per the trust deed, the trust board should be convened once in four months after issuing two weeks notice, mentioning the avenue, time and agenda in advance. The quorum for the meeting is four. In case of any vacancy by reason of death or resignation or dismissal, the trust board is required to convene a special meeting to fill up the vacancy by 2/3 majority of the trust board. The Founder of the trust died on 21.11.2000 and Mr.M.N.Sundaram, one of the trustees resigned his trusteeship on 12.08.1999. Mr.S.Raghavan and Mr.P.M.K.Ramasamy, died on 10.05.1996 and 30.09.1995 respectively. Hence, the present trust board consisting of only three members, namely, first plaintiff and defendants 1 and 2 do not make the quorum for a valid trust board meeting. Because of non cooperation of the other two trustees and due to lack of unanimity among the trustees, the management of the trust suffered a lot and it is very difficult to administer the trust and its properties.
3.4.The third defendant, who is the Manager of the trust and in-charge of the accounts of the trust, is secreting and misappropriating the income from the trust properties. Thus the third defendant has committed breach of trust and used the income from the trust's properties for his own purpose. Though Items 6 and 7 of suit schedule were purchased by the Founder of the trust in the name of defendants 3 and 4, the defendants 3 and 4 are trying to convert the trust properties as their personal properties. After the death of the Founder, the trust properties and the library belonged to the trust were not properly managed and run. Since the trust is not doing the regular activities to achieve the object to transcribe the vision and mission of the Author into realities and the trustees are not interested in developing the libraries and to utilise the income of the trust properly, the plaintiffs are constrained to file the suit.
4.The suit was contested by the defendants. In the written statement filed by the first defendant, the averments in the plaint are denied. The specific allegation in the plaint that the Author had purchased Items 6 and 7 of the suit properties in the name of defendants 3 and 4 are specifically denied. The first defendant in the written statement has tabulated several events organized by the trust to promote the objects of the trust. However, it is the specific case of the first defendant that after the death of the Founder of the trust and two trustees, by name, Mr.P.M.K.Ramasamy and Mr.S.Raghavan, new trustees were elected. Though it is admitted that one of the trustees, by name, Mr.S.Ragavan, resigned from trusteeship in the year 1995, it is contended that one Mr.Ramiah, was elected as a trustee in August 1995. Similarly, it is stated that the resignation of one Mr.N.M.Sundaram was accepted and in his place, one Mr.M.J.Prabhakar was elected as a trustee. It is also the case of the first defendant that one Dr.C.Ramakrishnan was elected in October 1995 in the place of Mr.P.M.K.Ramasamy, who died in September 1995. It is also stated that Mr.C.Ramakrishnan, also resigned from trusteeship, due to his health condition and his resignation was also accepted in the board meeting dated 20.08.2000. It is also the case of the first defendant that one Mr.Irulandi and Mr.M.Seeniraj are elected as trustees in the place of Mr.P.V.Durairaj and Mr.C.Ramakrishnan. Hence, it is contended by the first defendant that all the seven trustees are available and there is no vacancy.
5.The third defendant filed a detailed written statement, denying the contentions raised in the plaint. It is the case of the third defendant that after the death of Mr.P.V.Durairaj, the Founder, in the condolence meeting held on 17.12.2000, the first plaintiff has accepted Mr.K.Sithaman, Mr.V.Balasubramanian, Mr.S.Ramiah and Mr.M.J.Prabhakar as new trustees, and that therefore, the plaintiffs were estopped from contending that there were no new trustees. It is the further contention of the third defendant that Items 6 and 7 of the suit schedule properties were purchased by defendants 3 and 4 from and out of their own fund on 08.01.1998, even before the third defendant became a trustee on 22.08.1999. Since two of the trustees, who were elected subsequently were not impleaded as defendants, the third defendant raised a plea that the suit is bad for non-joinder of necessary parties. The third defendant has also raised a legal plea that the ingredients of Section 92 of CPC., are not satisfied and that the suit is therefore not maintainable. The third defendant has also raised a plea that the present Managing Trustee of the Trust, by name, Mr.Ramiah, was appointed as a Trustee on 20.08.1995 and that he is the present Managing Trustee of the Trust. The plaintiffs have also filed a reply statement denying the statements made in the written statement filed by the defendants in defence.
6.The trial Court after framing necessary issues, partly decreed the suit. The prayer for appointing new Trustees and framing a Scheme for better management of the trust are granted by the trial Court. The relief of injunction against the defendants 3 and 4 was also granted. However, the prayer in respect of Items 6 and 7 of the suit schedule properties was negatived by holding that the prayer is not sustainable in view of the Benami Transactions (Prohibition) Act, 2011. The prayer for a direction to direct the third defendant to render true and proper accounts of the Trust was also negatived by the trial Court. Aggrieved by the judgment and decree of the trial Court, partly decreeing the suit as prayed for, the defendants 2 to 5 have preferred the above appeal. It is pertinent to mention that the first defendant died during the pendency of the suit. Since the first defendant was impleaded only in the capacity as a Trustee of the Trust, no steps were taken to implead his legal heirs.
7.Before the trial Court, one of the issues raised was that the Court has no jurisdiction to try the suit. It is also contended that the suit under Section 92 of CPC is not maintainable. The trial Court after finding that the plaintiffs have obtained permission to file the suit under Section 92 of CPC, held that the suit is maintainable. Similarly, after elaborate discussion, the trial Court answered that the Additional District Court is competent to try the suit. Since the first defendant died during the pendency of the suit and the trial Court held that the election of some of the Trustees as alleged by the first defendant is illegal and contrary to the bylaws, the prayers for framing a Scheme and for appointment of new Trustees were granted by the trial Court. The trial Court further held that the third defendant was appointed only as a Manager of the Trust and that he is not a Trustee. Hence the prayer for injunction against the third defendant was also granted.
8.The learned Counsel for the appellants has not advanced any valid submission challenging the findings of the trial Court. However, it is submitted by the learned Counsel for appellants that the trial Court ought not to have granted the relief for framing a Scheme, as there already exists a deed of trust regarding the management and administration of the Trust and its properties, which is marked as Ex-A1. Though the learned Counsel for the appellants advanced his arguments that the third defendant is also a Trustee and that the fourth defendant alone is the Manager of the Trust, he could not point out any infirmity in the findings of the trial Court in holding that the third defendant is only a Manager. Merely because, the participation of the third defendant in the meeting was admitted by the plaintiffs, the trial Court found that the admission of plaintiffs regarding the participation of the third defendant is as Manager of the Trust and not as a Trustee. The third defendant who was examined as DW1, admitted in his cross examination that there is no record to show that he was elected as a Trustee. He has further admitted that there was no resolution by the trust board and there is no document to show that the third defendant was elected as a Trustee. He further admitted that he was drawing salary as Manager of the Trust, even though no salary is paid to the Trustees. He further admitted that his wife was also appointed as a Manager and that she is drawing salary. He also admitted that he is not maintaining the accounts of the Trust. Having regard to the admission of DW-1 and on perusal of entire evidence, the trial Court has given a categorical finding accepting the case of the plaintiffs that the third defendant is not at all a Trustee.
9.The learned Counsel for the appellants further submitted that the plaintiffs have failed to establish a case for framing a Scheme for better management of the trust and its properties. He further submitted that the Trustees are administrating and managing the properties as per the intention of the Founder of the Trust and that it is only the first plaintiff, who has been acting against the interest of the trust and the intention of his father, the Founder of the trust. The learned Counsel for the appellants further submitted that the findings of the trial Court that the Trustees were appointed in violation of the terms of Trust deed are perverse. It is to be seen that the first defendant died during the pendency of the suit. The trial Court has given a categorical finding that the two Trustees, by name, Mr.Irulandi and Mr.Seeniraj, were illegally elected. It is the case of the third defendant that the two trustees were elected in the meeting held on 27.05.2001. It is a fact that no document is filed before the Trial Court to show that the meeting on 27.05.2001 was held after issuing notice to all the Trustees. It is the case of the third defendant that records maintained by the Trustees, are available with the first plaintiff. However, this was not accepted by the trial Court for valid reasons.
10.The defendants have produced Ex-B6 to Ex-B18, which are all the records and documents regarding the activities of the Trust. Ex-B6, is the resolution of the trust board. In such circumstances, the case of the defendants that the records pertaining to Mr.Irulandi and Mr.Seeniraj, have been taken away by DW-1 cannot be believed so easily. In the absence of proper documents, which are proved to be the records maintained in the ordinary course of business of trust, the findings of the trial Court cannot be interfered with. Admittedly, the third defendant, who claims to be the Trustee, is held to be the Manager, appointed for the management of the trust and not a Trustee. Even in the document Ex-B6, there was no resolution to show that the third defendant was elected as a Trustee. The election of Mr.Irulandi and Mr.Seeniraj were found to be illegal. In such circumstances, the case of the plaintiffs that there were vacancies and the available Trustees do not make the quorum has to be accepted. In such circumstances, the prayer for framing a Scheme has to be granted. Similarly, prayer for appointment of new Trustees in the vacant of trust board has to be granted in view of the admitted position that there are only three Trustees. Having regard to the specific findings that the third defendant is not a Trustee and that the fourth defendant, the wife of third defendant, was appointed as a Manager, not by the Trust Board with requisite quorum, the prayer for injunction also cannot be denied. Hence, this Court has no hesitation to confirm the findings of the trial Court. There is no ground in this case to interfere with the findings of the trial Court.
11.As a result, the appeal suit is dismissed and the judgment and decree in O.S.No.447 of 2004 on the file of the Additional District Court (Fast Track Court-II), Madurai is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
To
1.The Additional District Court ( Fast Track Court-II), Madurai.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.