IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:7-4-2005 CORAM: THE HON'BLE MR.JUSTICE N.V.BALASUBRAMANIAN and THE HON'BLE MR.JUSTICE S.SARDAR ZACKRIA HUSSAIN A.S.Nos.851 of 1989 & 606 of 1989 and C.M.P.No.5356 of 2004 .... A.S.No.851 of 1989: Hindu Community in General and Citizens of Gobichettipalayam 1.Senniappa Chettiar 2.G.K.Jayajothimurugan. ... Appellants[Plaintiffs]. vs. 1. The Commissioner, Hindu Religious and Charitable Endowment, Madras. 2.Revenue Divisional Officer, Gobichettipalayam Division, Gobichettipalayam. 3.District Munsif, Gobichettipalayam. 4.G.K.Perumal 5.Ramayammal 6.Thirugnanasambandam 7.T.M.Natarajan 8.Dhinakaran 9.Dr.M.R.Subbaiyan https://hcservices.ecourts.gov.in/hcservices/ 10.Narayana Iyer 11.K.V.Narasimhan 12.Dr.K.S.Palanisami 13.Deivathal (died) 14.P.Sivakumar 15.Arulmighu Dhandayuthapaniswami Tirukoil by its Deputy Commissioner- Executive Officer, Palani, Madurai. 16.G.S.Lakshmanan 17.N.R.Thiruvenkadam 18.N.T.Gobikrishnan 19.Mrs.Jayasudha 20.Ramamorthy Thiruvenkadam (Respondents 17 to 20 are impleaded as LRs. of the deceased 13th respondent vide as per order of Court dated 1.8.2002 made in CMPs.8524 to 8526/02). ... Respondents (Defendants 1 to 5 and 7 to 17). A.S.No.606 of 1989: 1. G.K.Perumal 2. Ramayammal. ... Appellants (Defendants 4 and 5). vs. 1.Chenniappa Chettiar, Hanumantharayan Koil St., Gobichettipalayam. 2. G.K.Jaya Jothi Murugan (representing Hindu Community in General and Citizens of Gobichettipalayam) 73, Bazaar St., Gobichettipalayam. https://hcservices.ecourts.gov.in/hcservices/ 3. The Commissioner, Hindu Religious and Charitable Endowments, Madras. 4.Revenue Divisional Officer, Gobichettipalayam Division, Gobichettipalayam. 5.District Munsif, Gobichettipalayam. 6.Arulmigu Dhandayuthapani Tirukoil, rep. By its Deputy Commissioner/ Executive Officer, Palani. ... Respondents. (Plaintiffs and Defendants 1,2 and 3 and 16). Both the appeals filed against the judgment and decree dated 2.2.1989 made in O.S.No.76 of 1981 on the file of Sub Court, Gobichettipalayam. A.S.No.851 of 1989: Mr.T.R.Mani, Sr.counsel for Mr.M.Duraiswamy ... for 2nd appellant. ... 1st appellant (died) Mr.G.Sukumaran, Spl.G.P.(H.R.& C.E.) ... for 1st respondent. Mr.S.Senthilnathan, AGP ... for 2nd respondent. Mr.S.V.Jayaraman, Sr.counsel for Mr.S.T.S.Murthi ... for 4 & 5th respondents Mr.V.K.Muthuswami, Sr.counsel for Mr.M.M.Sundaresh ... for 6 & 9th respondents. Mr.P.V.Ramachandran ...for8,10 & 11th respondents. Mr.R.Gandhi, Sr.counsel for Mr.M.Kandasamy ...for 12th respondent. Mr.M.Venkatachalapathi, Sr.counsel for Mr.D.Rajendran ... for 15th respondent. Mr.B.T.Seshadri ...for 17 to 20th respondents. https://hcservices.ecourts.gov.in/hcservices/ [LRs of Respondent No.13] No appearance for 7,14 and 16th respondents. A.S.No.606 of 1989: Mr.S.V.Jayaraman, Sr.counsel for Mr.S.T.S.Murthi ... for Appellants. ... 1st respondent (died) Mr.T.R.Mani, Sr.counsel for M.Duraiswamy ... for 2nd respondent. Mr.G.Sukumaran, Spl.GP. (HR & CE) ... for 3rd respondent. Mr.S.Senthilnathan,AGP ... for 4th respondent Mr.M.Venkatachalapathi,Sr.counsel for Mr.D.Rajendran ... for 6th respondent. .... JUDGMENT N.V.BALASUBRAMANIAN,J. A.S.No.851 of 1989: An interesting question of law arises in the appeal in A.S.No.851 of 1989 regarding the character of the Will left by one Palaniappa Chettiar (testator) and his wife Chinnammal @ Rangammal (testatrix) and the question is whether the Will left by them dated 26.9.1968 is a joint Will or a joint and mutual Will. The question that arises in A.S.No.606 of 1989 is whether the Will executed by Chinnammal @ Rangammal dated 27.11.1980 is a true, valid and genuine Will. Apart from the two questions in both the appeals, other points that arise are, whether the suit has been properly instituted after getting proper leave of the Court under section 92 CPC, whether the properties left by the testator and the testatrix are trust properties and whether the trust has been validly created and also other incidental questions regarding the maintainability of the appeal. 2. The brief facts of the case are as under:- (a) The plaintiffs are the appellants in A.S.No.851 of 1989 and they have filed the appeal against the dismissal of suit in O.S.No.76 of 1981 on the file of Subordinate Judge, Gobichettipalayam. The other appeal, A.S.No.606 of 1989 is filed by the defendants 4 and 5 in the suit against the adverse finding regarding the validity of the will Ex.B-109. https://hcservices.ecourts.gov.in/hcservices/ (b) O.S.No.76 of 1981 was instituted before the Subordinate Judge, Gobichettipalayam by the plaintiffs, Senniappa Chettiar and G.K.Jayajothimurughan in their representative capacity on behalf of Hindu Community in General and Citizens of Gobichettipalayam. The suit was filed for a decree arranging for the management of the suit trust by the defendants 1 to 3 by entering on their duties as trustees or by appointing new trustees and settling a scheme to ensure an effective and proper administration of the trust and its properties. There is no prayer for costs. The suit was instituted on the basis of a Will dated 27.9.1968 (Ex.A-5) executed by N.Palaniappa Chettiar and his wife Chinnammal @ Rangammal. The eo-nominee first plaintiff is the brother of Rangammal and the eo-nominee second plaintiff is the first plaintiff's daughter's son and as persons interested in the trust, they filed the suit for proper administration of the trust as envisaged in Ex.A-5. (c) Though the plaint runs to nearly 12 pages, the essential facts necessary for the disposal of the appeals are that Palaniappa Chettiar was a self-made man and he migrated from a village called, Siruvalur in or about 1930 to Gobichettipalayam. He had a lucrative shroff and money- lending business. Palaniappa Chettiar earlier executed a Will dated 15.7.1931(Ex.A-6) and the Will shows his philanthropic bent of mind and he bequeathed his properties for charities subject to variance depending upon begetting issues between him and his wife Chinnammal @ Rangammal. He also mentioned the list of properties as well as the list of charities to be done in the Will executed as early as on 15.7.1931 (Ex.A-6). Palaniappa Chettiar later executed a Will dated 15.7.1956 (Ex.B-14) and the Will has been taken into consideration only for identifying the signature of Palaniappa Chettiar and not for proving the contents of the document as seen from the deposition of D.W.1 at page 140 of typed-set of papers. The Will of Palaniappa Chettiar dated 15.7.1931 was cancelled by him by executing the document, Ex.B-110. The suit Will Ex.A-5 was executed by Palaniappa Chettiar and his wife Chinnammal @ Rangammal and the Will was also registered in the Office of Sub-Registrar, Gobichettipalayam. (d) According to the plaintiffs, Palaniappa Chettiar acquired extensive properties of his own and he also acquired properties in the name of his wife Chinnammal @ Rangammal for his benefit and she had no wherewithal. Though a plea of benami was set up, the trial Court rejected the said plea on the ground that the properties held by Chinnammal @ Rangammal were not purchased benami by Palaniappa Chettiar. Mr.T.R.Mani, learned senior counsel for the second appellant has not challenged the said finding and proceeded with the appeal on the basis that the properties standing in the name of Palaniappa Chettiar are his properties and the properties standing in the name of Chinnammal @ Rangammal are her own properties. (e) According to the plaintiffs, Palaniappa Chettiar and his wife Chinnammal @ Rangammal by the suit Will dated 27.9.1968 (Ex.A-5) created a trust for charitable objects and during their life time, Palaniappa Chettiar and his wife were to manage the properties and perform the https://hcservices.ecourts.gov.in/hcservices/ charities and if they were unable to perform the charities and after the lifetime of both, the Committee consisting the defendants 1 to 3 was to fulfil the charitable objects. The charitable objects as set out in the Will are as under:- a) A Chatram to be constructed at Palani in the names of both of them for use by all Hindus, to be administered by the Endowment Commissioner. b) To arrange for Naivedyam during early morning pooja of Palani Andavar at Palani. c) During the Thai Poosam festival at Palani Annadanam to be performed in their name. d) At Gobi where they prospered, an Educational Institution is to be established in their names to be administered by the Government or Municipal Administration. e) A Maternity Home to be built in the names of both of them to be managed by the Government. (f) According to the plaintiffs, the trust is to be controlled and the objects of the trust are to be accomplished by utilising the income from the properties held by Palaniappa Chettiar and his wife Chinnammal @ Rangammal and the charities are to be performed by the Committee consisting the defendants 1 to 3. The case of the plaintiffs is that the suit Will dated 27.9.1968 (Ex.A-5) is a joint and mutual Will and it became irrevocable on the death of Palaniappa Chettiar on 5.10.1969, and on the demise of her husband, Chinnammal @ Rangammal, the surviving testatrix received the benefit under the Will. An alternative contention is also raised that if the Will is not a joint and mutual Will, it will take effect at least as regards Palaniappa Chettiar's properties and his wife Chinnammal @ Rangammal has no right to meddle with the same. (g) The suit came to be instituted, because a subsequent Will of Rangammal (Ex.B-109) dated 27.11.1980 was set up by the defendants 4 and 5 in derogation of the trust which would amount to breach of trust. According to the plaintiffs, the defendants 4 and 5 belong to different community and the fourth defendant was a Bill Collector in Gobi Municipality and the fifth defendant is his wife and she was a domestic servant doing cooking work and washing clothes of Chinnammal @ Rangammal and with a view to interfere with the trust properties, they set up the Will dated 27.11.1980 as if it was executed by Rangammal in favour of the defendants 4 and 5. The case of the plaintiffs is that the Will dated 27.11.1980 is not a true and valid Will and it was not executed by Rangammal in sound disposing state of mind, but it was brought about by the defendants 4 and 5 by way of fraud, undue influence and coercion. (h) The defendants 6 to 13 are purchasers of some of the properties from Rangammal and from the defendants 4 and 5 and according to the plaintiffs, the defendants 4 to 13 are trespassers of the trust properties. The defendants 14 and 15 are tenants and the 16th defendant is Palani Devasthanam, a beneficiary under Ex.A-5 Will and the 17th defendant https://hcservices.ecourts.gov.in/hcservices/ is also a subsequent purchaser. (i) Along with the suit, the plaintiffs have filed three applications in I.A.Nos.193 to 195 of 1981. I.A.No.193 of 1981 was filed for leave of the Court to institute the suit in the representative capacity. The trial Court in paragraph-60 of the judgment referred to the order made in I.A.No.193 of 1981 and recorded a finding that the procedure prescribed under Order I, Rule 8 C.P.C. was complied with and paper publication was effected and objections were received from the defendants. As far as I.A.No.194 of 1981 is concerned, it was filed to dispense with the notice under section 80 C.P.C. It is relevant to mention that notice under section 80 C.P.C. was not issued, as the plaintiffs filed the suit against the defendants 1 to 3 not in their official capacity, however, out of abundant caution they filed the application under section 80(2) C.P.C. to dispense with the issue of prior notice under section 80 C.P.C. The trial Court in paragraph-59 of the judgment held that since the proceedings were not instituted against the defendants 1 to 3 in their official capacity, there was no need to issue notice under section 80 C.P.C. and that finding is also not seriously disputed before us. I.A.No.195 of 1981 was filed to grant leave under section 92 CPC to sue on behalf of Hindu Community and Citizens of Gobichettipalayam. The certified copy of the order passed in I.A.No.195 of 1981 is placed before us and it is seen that the trial Court ordered notice in the said application and some of the defendants filed counter and ultimately, the trial Court allowed the application by order dated 8.2.1982. (j) Written statements have been filed by the defendants 1,4,5,6,7,9,10,11,12,13,15 and 16. The 8th defendant filed a memo adopting the written statement filed by the defendants 4 and 5. In the written statement filed by the first defendant, no plea has been raised regarding the notice under section 80 C.P.C. but the written statement proceeds on the basis that a direction should be issued to the plaintiffs to avail the remedies under the Tamil Nadu Hindu Religious and Charitable Endowments Act to decide the nature of the institution. The first defendant has also not taken a plea that the suit is barred under the provisions of the H.R. & C.E. Act. The defendants 4 and 5 in their written statement has stated that they are claiming title to the suit properties under the Will executed by Rangammal dated 27.11.1980. It is stated that Rangammal was the sole heir of her husband Palaniappa Chettiar and she became absolute owner of the entire properties of her husband and it is only in respect of the properties that remained undisposed of by Rangammal, the Will could be said to operate regarding the purpose of the charities and hence, the properties dealt with by Rangammal by way of sale or conveyance cannot be questioned by the plaintiffs. It is not necessary to burden the judgment with the contentions raised by other defendants as the case involves the question of construction to be placed on the Will executed by Rangammal and Palaniappa Chettiar (Ex.A-5). 3. The trial Court framed as many as 17 issues and on the basis of https://hcservices.ecourts.gov.in/hcservices/ evidence let in by both the parties, the trial Court held that the Ex.A-5 Will is a true and valid Will and it is a joint Will and not a joint and mutual Will and Rangammal is entitled to revoke Ex.A-5 Will. The trial Court also held that no valid trust was created over the suit properties under the Indian Trusts Act. The trial Court also held that the plaintiffs are not entitled to a scheme decree. The trial Court held that it is not clear as to whether the Will Ex.A-5 would take effect regarding the properties belonging to Palaniappa Chettiar. The trial Court held that the suit is not barred under section 108 of the H.R. & C.E. Act and the plaintiffs are entitled to sue in their representative capacity and the suit is not bad for want of notice under section 80 C.P.C. The trial Court held that the properties standing in the name of Rangammal were not held by her benami for the benefit of her husband and she is entitled to deal with her husband's properties and her properties and the sales in favour of defendants are valid. The trial Court also held that since the trust is not established, the suit is not maintainable. The trial Court held that Ex.B-109 Will in favour of defendants 4 and 5 is not a true and valid Will and was not executed by her in a sound and disposing state of mind, and ultimately, the trial Court dismissed the suit. It is against the judgment and decree of the trial Court dismissing the suit, the plaintiffs have filed the appeal, A.S.No.851 of 1989, and against the finding regarding the validity of Ex.B-109, the defendants 4 and 5 have filed the appeal, A.S.No.606 of 1989. Other defendants have not filed any appeal or cross-objections. 4. We are of the view that it would be profitable to refer to the substance of the arguments of learned counsel for parties for framing points for consideration before going into the arguments of learned counsel for parties in detail with reference to each point for consideration. 5. Mr.T.R.Mani, learned senior counsel for the second appellant submitted that the suit has been properly instituted under section 80 C.P.C. and the leave of the Court has been obtained to sue in the representative capacity and the leave under section 92 C.P.C. has also been properly obtained. His main submission was that the suit Will, Ex.A-5 is a joint and mutual Will and Rangammal having obtained benefit under the Will is not entitled to revoke the Will. He also submitted that there was an agreement not to revoke the Will also. He therefore submitted that the finding of the trial Court that the Will is a joint Will and not a joint and mutual Will is not correct in law. 6. Mr.S.V.Jayaraman, learned senior counsel appearing for the respondents/defendants 4 and 5 submitted that the suit is bad for want of prior notice under section 80 C.P.C. as no prior leave has been obtained by the plaintiffs before instituting the suit. He also submitted that the leave obtained under section 92 C.P.C. during the pendency of the suit would not cure the defect in instituting the suit. He also submitted that the Will in question is a joint Will and not a joint and mutual Will. https://hcservices.ecourts.gov.in/hcservices/ Learned senior counsel submitted that to regard a Will as a joint and mutual Will, the survivor should have received benefit under the Will and there should be an agreement not to revoke the Will. He submitted that both the conditions to regard the Will as a joint and mutual Will are lacking on the facts of the case. Learned senior counsel submitted that no trust has been created as there is uncertainty over the properties over which trust would come into existence and no property was earmarked for charity and no trust has come into existence. 7. Mr.V.K.Muthusamy, learned senior counsel submitted that the leave was not obtained in the manner contemplated under section 92 C.P.C. and the suit is bad for want of proper leave of the Court. He also submitted that the Will is not a mutual Will, but it is a joint Will and the surviving testator was entitled to enjoy the properties absolutely. He also emphasised that only in respect of the remaining properties, the trust was sought to be created which indicates that the surviving testator had the full power of alienation and the alienees are bona fide purchasers for value and the alienations in favour of his clients are valid in law. 8. Mr.P.V.Ramachandran, learned counsel appearing for some other alienees submitted that though the provisions of the Indian Trust Act are not strictly applicable, the principles of the Indian Trust Act would apply. Learned counsel submitted that unless there is certainty with reference to the properties of the trust, the trust is not created by the Will and the trust fails for want of certainty of trust properties and on the facts of the case, the trust failed due to uncertainty with reference to the properties. Mr.V.K.Muthusami, learned senior counsel and Mr.P.V.Ramachandran, learned counsel submitted that the alienees have purchased the properties for valuable consideration and they have also made improvements in the properties and hence, the alienation should be protected by the Court. 9. Accordingly, we frame the following points for consideration: 1.Whether the suit is bad for non-issue of notice under section 80 C.P.C.? 2. Whether the plaintiffs have validly filed the suit in their representative capacity? 3. Whether the suit has been validly instituted under section 92 C.P.C.? 4. Whether the suit Will, Ex.A-5 is a joint Will or a joint and mutual Will? NOTICE U/S.80 CPC: 10. The plaintiffs have obtained permission under section 80(2) C.P.C. in I.A.No.194 of 1981 and the trial Court, by order dated 8.2.1982, dispensed with the notice under section 80 C.P.C. Further, the notice https://hcservices.ecourts.gov.in/hcservices/ under section 80 CPC. was also not required to be given as the defendants 1 to 3 have not been sued in their official capacity and hence, there was no need to issue notice under section 80 CPC as well. We are of the view, notice under section 80 CPC is required to be given when the suit is sought to be instituted against an official in respect of the acts done by him in his official capacity and since the defendants 1 to 3 have not been sued in respect of any act done by them in their official capacity, notice under section 80 C.P.C. is not necessary. Mr.S.V.Jayaraman, learned senior counsel appearing for the respondents 4 and 5 has also not seriously disputed the position. REPRESENTATIVE CAPACITY: 11. The suit has been instituted in representative capacity and it is seen from the records, the plaintiffs have filed an application I.A.No.193 of 1981 and on the date of filing itself, the trial Court granted the necessary permission and there was publication of notice, and on the basis of the evidence of P.W.1 who was not cross-examined on that aspect, the trial Court held that permission granted on 16.2.1981 was in existence till the disposal of the suit. We find that the suit has been validly instituted in the representative capacity and there is no serious objection raised by the respondents on this aspect. SECTION 92 C.P.C. 12. The suit has been instituted under section 92 C.P.C. on the ground that there was no proper administration of the trust and its properties. The suit was filed in the trial Court on 16.2.1981 and on the same date, the plaintiffs filed an application in I.A.No.195 of 1981 under section 92 CPC seeking leave of the Court to institute the suit under section 92 CPC. The trial Court ordered notice to the respondents in the application and after the respondents filed counter and after enquiry, the trial Court ultimately, by order dated 8.2.1982, granted the necessary leave under section 92 C.P.C. 13. Mr.T.R.Mani, learned senior counsel for the second appellant submitted that the leave under section 92 C.P.C. has been validly granted. He relied upon the decision of this Court in B.S.ADITYAN v. R.KANNAN ADITYAN (AIR 1983 Madras 334) and submitted that the suit must be deemed to have commenced with the filing of the application for leave. Mr.S.V.Jayaraman, learned senior counsel, on the other hand, submitted that the leave under section 92 C.P.C. is a condition precedent for maintaining a suit and since the leave is mandatory, the leave should have been obtained by the plaintiffs prior to the institution of the suit. He referred to section 92 CPC and submitted that the expression, 'having obtained the leave of the Court may institute a suit' implies that the plaintiffs should have obtained prior leave of the Court under section 92 CPC and then institute the suit. In support of his submission, learned senior counsel relied upon the decision of this Court in PERIASAMI v. CHINNATHAMBI PADAYACHI (2001)3 MLJ 686) and G. VASANTHA PAI AND ANOTHER v. GANDHINAGAR COOPERATIVE HOUSE CONSTRUCTION SOCIETY LTD. AND ANOTHER https://hcservices.ecourts.gov.in/hcservices/ (2002-3-LW 116). Mr.V.K.Muthusami, learned senior counsel submitted that the suit is bad for want of proper leave under section 92 C.P.C. and he relied upon the judgment of this Court in N.ANANDAN v. AYYANNA GOUNDER (AIR 1994 Madras 43) and submitted that the leave of the Court is a condition precedent to institute the suit under section 92 C.P.C. He also relied upon the decision of the Supreme Court in R.M.NARAYANA CHETTIAR v. N.LAKSHMANAN CHETTIAR (AIR 1991 SC 221) and submitted that the leave is a condition precedent for instituting suit against a public trust. 14. We have carefully considered the submissions of Mr.T.R.Mani, Mr.S.V.Jayaraman and Mr.V.K.Muthusami, learned senior counsel for the parties. The Supreme Court in R.M.NARAYANA CHETTIAR v. N.LAKSHMANAN CHETTIAR (AIR 1991 SC 221) has held that the leave of the Court is a precondition or a condition precedent to institute suit against a public trust for the reliefs set out in the said section and a suit instituted without the leave of the Court is not maintainable at all. The same view is reiterated by the Supreme Court in B.S.ADITYAN & ORS v. B.RAMACHANDRAN ADITYAN & ORS (2005-1-LW 661). Abdul Hadi,J. in N.ANANDAN v. AYYANNA GOUNDER (AIR 1994 Madras 43) has made distinction between the leave of the Court for instituting suit under section 92 CPC and the permission under Order 1 Rule 8 CPC to file suit in the representative capacity. Learned Judge after noticing the difference between the suit under section 92 CPC and the suit filed in the representative capacity, held that the suit under section 92 CPC is not similar in all respects to the suit filed in the representative capacity under Order 1 Rule 8 CPC. Learned Judge held that the leave under 92 CPC is a condition precedent to institute the suit itself. However, in the case before the learned Judge, the application