IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.08.2011 CORAM: The Hon'ble Mr.Justice A.ARUMUGHASWAMY Appeal Suit No.713 of 1991 and C.M.P.No.773 of 2011 Sri Parthasarathy Swamy Devasthanam, Triplicane, Madras-5, rep. by its Executive Officer. ... Appellant/1st Defendant Versus 1. A.Parthasarathy (Died) 2. A.Srinivasachari (Died) 3. A.Thayaramma 4. V.Alamelu (Died) W/o.A.Srinivasachari(Died)(exonerated) 5. A.Thiruvengadamma (Died) 6. A.Seshamma (Died) W/o.A.Narasimhanchari 7. A.Andalamma 8. A.Ramanujachary (Died) 9. A.Seshamma (Died) W/o.A.Ramanujacharry 10. A.S.Raghavan 11. A.S.Radhakrishnan 12. A.S.Parthasarathy 13. A.S.Jayaraman 14. A.S.Venkatraman 15. A.S.Jayalakshmi 16. Lakshminarasimhachariyalu 17. Rangachari @ Venkatarangan 18. Banu @ Amirthavalli ... Respondents/Plaintiffs 1&2 Defendants 2 to 9. RR 10 to 15 brought on record as LRs of the deceased Second Respondent vide order of Court dated 13.6.2001 made in CMP.No.5159/01, 5160/01, 5162/01 R-3 recorded as LR of the deceased Ist Respondent vide Order of Court dated 5.9.2003 made in CMP.No.7061/98 . R16 to R18 brought on record as LRs of the deceased Ist Respondent vide order of Court dated 5.9.03 made in CMP.No.7061/98 https://hcservices.ecourts.gov.in/hcservices/ cause title amended as per order of Court dated 23.2.2010 made in Memo USSR No.681/10. Appeal Suit filed under Section 96 of Civil Procedure Code against the Judgment and decree dated 31.10.1990 made in O.S.No.645 of 1984 on the file of the XII Assistant City Civil Court, Madras. For Appellant .. Mr.Satish Parasarasan For Respondents .. Mr.T.V.Ramanujan, Sr. Counsel for Mr.S.Vediappan JUDGMENT Plaintiffs filed the suit for declaration declaring that they are the Trustees of the Dhavanotsavam festival and in respect of the suit properties as per the Will of late A.K.Venkatacharyulu dated 1.2.1872; for rendition of accounts by the first defendant in respect of rental collections and management in respect of the suit property viz., New Door No.86 to 92 and 96 to 103, T.P.Koil Street, Triplicane, Madras and in respect of expenditure made for the performance of "Dhavanotsavam" festival by the first defendant for all the past years; for a direction to the first defendant to pay a sum of Rs.30,000/- in respect of balance of rental collections payable by the first defendant to the plaintiffs subject to rending of accounts; for a declaration declaring that the deed of sale dated 25.3.1910 in favour of the first defendant is null and void and invalid; for injunction restraining the first defendant from disturbing possession of the suit property; for a direction to the first defendant to hand over possession and management of the suit properties to the plaintiffs and to hand over the key of the room in the Tirumanai Mandabam and for costs. The suit has been decreed with costs. Against which, the defendants preferred this appeal. 2. (i) The first defendants is the appellant. The case of the plaintiffs/Respondents is that they are the descendants of A.Venkatacharyulu, who created a trust in respect of premises bearing Door No.78 to 91, New No.86 to 103, T.P.Koil Street, Triplicane, Madras-5 providing thereunder that these descendants are entitled to collect rents from the property and to perform certain specified festival out of the rental collections, utilise a portion of the same for their maintenance and to retain balance for repairing the Tirumanai Mandapam for Dhavanotsvam and also for their own family expenses. The said A.K.Venkatacharyulu thus created religious-cum- private Trust and appointed the plaintiffs as Trustees by Will dated 11.2.1872, the property vested in the hereditary Trustees. According to the said Will, the plaintiffs have no right to sell or mortgage the property and the property is in-alienable and any such mortgage or sale in respect of the property will be null and void and ineffective. https://hcservices.ecourts.gov.in/hcservices/ (ii) While so, some of the ancestors of plaintiffs who were the then Trustees seem to have authorised the first defendant to make collections on their behalf and in trust for them and utilise a portion of the same which is necessary for the purpose of performance of the festival according to the Will and to render accounts for the balance and for the payment of the same to them as per directions under the said Will. The first defendant purported to exercise the authority given by the previous trustees to collect the rents from portions of the suit property for the purpose of spending the same for festivals etc. as aforesaid. The first defendant had taken ejectment proceedings against various tenants in the property with a view to demolish and reconstruct, without any concurrence from the plaintiffs or the Trustees in spite of their protests. The first defendant had no right to demolish or reconstruct as proposed and according to the terms of the Will no person has got any right to demolish so as to destroy the property or to reconstruct. (iii) The plaintiffs by their letter dated 26.3.1978 revoked authority given to the first defendant by the previous trustees and called upon the first defendant to render accounts for which no replay has been sent by the first defendant. The plaintiffs are also in possession of a portion of the property as Trustees and they are not bound to be or liable to be disturbed in any manner for any reason. The defendants 4 to 8 are also lineal descendants who are entitled to the property as Trustees and as such they are also made properties. The defendants 2,3,5,6,7 and 9 the daughters-in-law of the family are also entitled for the rental collections after expending for the festival. (iv) While so, the first defendant purported to claim one of the properties by virtue of a sale deed dated 25.3.1910 alleged to have been executed by A.Venkatacharyulu and others in pursuance of a mortgage of the suit property. When the said alienation are expressly prohibited in the Will, no valid mortgage can be created and no sale can be executed and they are null and void and that the first defendant cannot claim any manner of right, title or interest by virtue of the said sale deed. (v) The plaintiffs having in their custody the room in Tirumanai Mandapam and were performing poojas and Bajans in the said room to the properties of Sri Rama and other deities kept by them in the said room. They have also kept jewels of the deities and pooja materials for the purpose of worship every day. The deities of Sri Parthasarathy Swami temple used to visit Thirumanai Mandapam on festival days. On those days the temple authorities used to take the key of the room which was kept locked by the plaintiffs in the morning and return the key to them in the evening every festival day. However, on 8.3.1980 they took the key in the morning and did not return the key in the evening and took it to the temple. The plaintiffs required the temple authorities to return the key as they https://hcservices.ecourts.gov.in/hcservices/ required the same for the purpose of performing the poojas and bajans as usual. However, the temple authorities refused to give the key. The first defendant has no right to retain the key in the course of management of the Devanothsavam festival trust. 3. The first defendant in the written statement contended that the claim made by the plaintiffs is not maintainable in law and it is purely illusory and imaginary one. The Court Fee paid by the plaintiffs is not correct. Further contended that the relief sought for by the plaintiffs to set aside the sale deed which had taken place in the year 1910 is not maintainable in law. In respect of Door No.86, T.P.Koil Street, Triplicane, Madras-5 in which A.C.Srinivachari was a tenant in occupation and the rental dues of him used to be adjusted in respect of the income from the trust properties. The real motive for the cause of the suit is that A.C.Srinivasachari who was a tenant in respect of Door No.86 failed to pay the rent and the temple has enhanced the rent for which they opposed it and it has been ended in ejectment suit before the IV Judge, Small Causes Court, Madras and eviction has been ordered in which obstruction petition has been filed and it is only to save his position the plaintiffs who are actually not in possession of the property have filed the present suit. The finding of the Court in the said suit that the temple is the absolute owner has become final and conclusive as no appeal has been filed. Hence, the plaintiffs are not entitled for the relief of declaration and possession. The suit is hit by provisions of Section 108 of Act 22 of 1959. The plaintiffs have no concern over the property absolutely possessed, owned and enjoyed by the defendant and they are entitled to deal with the property in any manner they like. The second plaintiff is in possession of a portion of the property that was rented out to one A.C.Srinivasachari who died. The defendant denies that the room in Thirumanai Mandapam were under the exclusive possession and enjoyment of the plaintiffs. The keys of the Mandapam are with the temple and the plaintiffs were permitted to do bhajans on certain occasions. Since the Thirumanai Mandapam is in the exclusive possession of the temple authorities there was no necessity for them to retain the key on 8.3.1980 as alleged by the plaintiffs. The defendant denies the allegation that they have retained the key in the course of the management of the Devanotsavam festival trust. The defendant prayed that the suit has to be dismissed with costs. 4. On a careful perusal of the averments in the plaint and the written statement, the trial Court framed the following issues:- i. Whether the plaintiffs are entitled for the relief of declaration? ii. Whether the defendants are liable for rendition of accounts regarding collection of rent and performance of poojas? https://hcservices.ecourts.gov.in/hcservices/ iii. Whether the defendants are liable to pay Rs.3,000/- to the plaintiffs from and out of collection of rent? iv. Whether the plaintiffs are entitled for the relief of declaration that the sale deed dated 25.3.1910 is null and void? v. Whether the plaintiffs are entitled for the relief of permanent injunction? vi. Whether the first defendant is liable to hand over the suit properties and the administration of the said properties to the plaintiffs? vii. What reliefs the plaintiffs are entitled to? Additional issue:- i. Whether the plaintiffs are entitled for the relief of mandatory injunction? 5. Before the trial Court, on the side of the plaintiffs, the first plaintiff examined himself as P.W.1 and one Raghunathan was examined as P.W.2 and Exs. A1 to 52 were marked. On the side of the defendants one Jothi Mahalingam was examined as D.W.1 and Ex. B1 was marked. 6. On considering the oral and documentary evidence the trial Court has decreed the suit with costs by the judgment and decree dated 31.10.1990. Aggrieved over the said judgment and decree, the present appeal has been filed by the first Defendant. 7. I have heard the learned counsel appearing on either side and also perused the materials available on record. 8. The point for consideration in this appeal is: It is of course a trust property of the appellant temple whether the Trustees themselves can purchase the property? If so, whether it amounts to any breach of trust? 9. The vehement contention of the learned counsel appearing for the appellant is that an endowment has been formed in the year 1886 and the Trust has been created by A.K.Venkatacharyulu as Religious cum Private Trust by Will dated 1.2.1872. Thereafter, on 29.06.1903, the suit properties have been mortgaged by Venkatarangachariar and other legal heirs of the testator in favour of Dharmakarthas of Sri Parthasarathi Swami Thirukoil Devasthanam. Thereafter, on 17.03.1907, a suit in C.S.No.70 of 1907 has been filed by the Dharmakarthas of Sri Parthasarathi Swami Thirukoil Devasthanam against the Defendants 1 to 4 therein for recovery of a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.18,500/- towards principal and Rs.22,289.54 towards interest and for subsequent interest at the rate of 7% per annum and the said suit was decreed by this Court on 17.09.1907. Thereafter, on 11.12.1908 sale proclamation has been ordered to bring the properties in to auction in lieu of the mortgage created by the descendants of the testator in favour of the appellant devasthanam. Thereafter, A.Venkatarangachariar and 13 others had executed a Deed of Indenture in favour of the appellant devasthanam on 25.03.1910. 10. The contention of the learned counsel appearing for the appellant is that the Will dated 1.2.1872 said to have been executed by A.K.Venkatacharyulu, was not probated and as such it cannot be relied on for the purpose of title or execution as per Section 119 of the Hindu Wills Act, 1870 which is pari materia with Section 213 of the Indian Succession Act, 1925. To substantiate his contention the learned counsel for the appellants relied on a decision in Madhukar Ranjanna Darbhe vs. Union of India reported in (2008) 2 Bom. CR 418. 11. The next contention of the learned counsel for the appellant is that even assuming without admitting that the Will is admissible without probate, the Will created two distinct interests – predominant charitable disposition and private revenue interest of the descendants of the testator. Whereas under Section 10 of the Transfer of Property Act, rule against perpetuity would be inapplicable in so far as religious endowment is concerned and the said rule would squarely apply in case of private rights created under the Will. Thus, the family was free to sell its interest in the property to the temple and hence, the mortgage of the year 1903 and the subsequent sale of the property in the year 1910 by the Hindu Undivided Family in favour of the temple resulted in enlarging and merging the smaller right of the temple into one of absolute ownership in the properties and hence, there is no breach of trust in view of Section 10 of the TP Act coupled with the fact that such transfer was also as per the desire of the testator in the 1866 endowment. The next contention of the learned counsel for the appellant is that right to title of the temple was perfected in 1922 itself as under the sale deed of 1910, the temple acquired title and has been in possession since then, the suit is clearly bared by limitation as Article 96 of the Limitation Act provides that it should have been filed within 12 years from the respondents become a trustee which in this case would be at the age of 30 (age of majority 18 +12). After the very long period, the plaintiffs cannot file a suit for setting aside the sale which had taken place in the year 1910. Hence, he prayed that the appeal has to be allowed. 12. Per contra the learned senior counsel appearing for the Respondents would contend that the sale deed said to have been taken place on 25.3.1910 is void and it is against the terms and conditions of the Trust Deed as well as the Will dated 1.2.1872. Therefore, no title has been derived by the temple. The next contention of the https://hcservices.ecourts.gov.in/hcservices/ learned senior counsel for the Respondents is that as per Section 10 of the Trust Act, there is no limitation for the Trust properties. It is further contended by the learned senior counsel for the Respondents that since breach of trust has been committed by the Trustees, the appeal has to be dismissed. 13. It is not in dispute that an agreement has been entered into between Dharmakarthas of Sri Partharasarathy Temple and Venkatacharyulu on 11.04.1866. Thereafter, a Will under Ex.A1 dated 1.2.1872 said to have been executed by A.K.Venkatacharyulu and Ex.A2 is the Tamil version of the said Will Ex.A1. In that Will the testator had stated that since he was unwell and he was suffering from hydrocele and other diseases he decided to execute the Will. As per the Will it has been mentioned that by spending Rs.10,000/- he has constructed Akilandakoti Brahammanda Nayakan Sri Parthasarathi Swamy Thirumamani Mantapam for doing festivals in that mantapam. He has purchased Government Bond of a value of Rs.10,000/- carrying interest at 5% and handed over the same to the Devasthanam Dharmakarthas for performing davanikathsanams for ever in the said Thirumamani Matapam and also for due preservation and repairs etc. 14. As per the Will, the trustees are entitled to collect rent from the surrounding area and on that basis they have to perform Dharma Kangaryams. Further he would say that even his descendants failed to perform poojas and festivals, the trustees are entitled to perform the poojas and festivals and collect the amounts from his descendants. Further in the said Will the testator has stated that he has donated the property purchased by him way of his own earnings by hard work. Therefore, except those conditions in the Will the legatees are entitled to the property bequeathed by the testator. The nature of the Will is not in dispute. 15. The only contention of the learned counsel for the appellants is that after the execution of the Will the properties have been mortgaged by Venkatarangachariar and other legal heirs of Venkatacharyulu in favour oif Dharmakarthas of Sri Parthasarathy Swami Thirukoil Devasthanam on 29.06.1903 for the amounts received by them from the Devasthanam. Thereafter, a suit in C.S.No.70 of 1907 has been filed by Sri Parthasarathy Swami Thirukoil Devasthanam against the defendants 1 to 4 for recovery of a sum of Rs.18,500/- towards principal and Rs.2,289.54 towards interest and for future interest and the said suit has been decreed on 17.09.1907 and for execution of the decree amount proclamation of sale was ordered and auction sale notice was issued on 11.12.1908. At that juncture, A.Venkatarangachariar and 13 others executed a Deed of Indenture in favour of Dharmakarthas of Sri Parthasarathy Thirukoil on 25.03.1910. Therefore, they are the owners of the property and this aspect has not been considered by the trial Court and hence, he prayed that the appeal has to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 16. The learned senior counsel appearing for the Respondents/Plaintiffs would contend that as per the Trust Deed the properties cannot be sold and the question of mortgage does not arise and further it has been auctioned only in the private auction and hence the Trustees themselves cannot purchase the trust properties it amounts to breach of trust and hence he prayed that the appeal has to be dismissed. 17. While considering the rival submissions I am of the view that there is no direct evidence on this aspect because the matter relates to 1907. But from the perusal of the documents it is seen that a suit in C.S.No.70 of 1907 has been filed by the appellant/first defendant against the Respondents/plaintiffs for recovery of a sum of Rs.18,500/- towards principal with interest of Rs.2,289.54 and subsequent interest and the same was decreed on 17.9.1907. Thereafter, proclamation of sale has been drafted on 11.12.1908. At that juncture, sale deed dated 25.3.1910 has been executed by Venkatarangachariar and 13 others in the name of the Dharmakarthas of the appellant/first defendant temple. 18. The point:- As already mentioned, at the out set the descendants of the testator received money from the temple and on that basis a suit has been filed for the recovery of the amount. Even though the property has been endowed in the year 1872, as per the Will the beneficiaries namely the Trustees have received the amount from the Dharmakarthas of the appellant temple and that aspect has not been disputed. For recovery of the said amount suit has been filed even in the year 1907 for the debt amount of Rs.22,000/- which is very heavy amount on those days. For realisation of the decree amount only the property has been brought for sale by the temple authorities. Therefore, I am of the view that even though in Ex.A2 Will there is a specific condition that there should not be alienated by any of the parties and even if they want to make any alienation it must be in favour of Lord Parthasarathy Swamy on the market value. But here, the trustees in order to avoid the auction sale in favour of any third parties, they themselves have purchased the properties in favour of the appellant, I am of the view that the act of the trustees cannot be treated as a breach of trust, as the same was done in order to avoid the purchase of properties by the third parties and even as per the Will under Ex.A2 it is also the wish of the testator. Hence, I am of the view that there is no breach of trust as pointed out by the learned senior counsel for the Respondents. Therefore, I am of the view that the appreciation made by the trial Court in this aspect is not correct. 19. The next contention of the learned counsel for the appellant that the appellant has perpetuated title in 1922 by virtue of the sale deed in 1910 and that the suit is hopelessly bared by limitation and hence he prayed that the appeal has to be allowed. On https://hcservices.ecourts.gov.in/hcservices/ the other hand the learned senior counsel for the Respondents contended that there is no limitation for the trust properties and that the suit has been filed as per Section 9 of the Trust Act. Therefore, the question of limitation does not arise and hence, he prayed that the appeal has to be dismissed and the judgment and decree of the trial Court has to be confirmed. 20. From the documents it is seen that an eviction petition was filed by the appellant temple against A.C.Srinivasachari before the City Civil Court, Chennai in H.R.C.No.1396 of 1955 for wilful default and in that petition the amount of rent has been claimed as Rs.200/- per month and demanded Rs.600/- apart from the old balance. The said petition for eviction was ordered. However, E.P.No.No.19 of 1961 was dismissed on 18.12.1961 on the ground of limitation. Thereafter, suit for ejectment in E.S.No.52 of 1975 was filed by the appellant temple against the 2nd Respondent before the Small Causes Court, Madras and the said suit has been decreed. At the time of filing execution petition the second Respondent as an obstructor has filed C.R.P. before this Court against the order passed in the ejectment suit filed by the appellant temple and the same was dismissed as infructuous as the execution petition itself was closed. 21. From this it is clear that the 2nd Respondent/2nd appellant was a tenant under the appellant temple. Section 10 of the Trust Act will applicable only alienation without consideration. Here in this case, the amount involved is Rs.22,000/- in the year 1907. The Limitation Act 1908 subsequently amended in 1929 and thereafter in 1963. Therefore, the suit is well within the time. Therefore, I am of the view that Section 10 of the Trust Act is not applicable to the present case and the general Limitation Act alone is applicable. 22. Therefore, from the perusal of the above documents coupled with the evidence available on record I am of the view that the testator's family members right has been auctioned and it has been purchased by the Dhrmakarthas of the appellant temple for valuable consideration. The only contention of the learned counsel for the appellant is that even though the testator's descendants are not taking any interest in honouring the directions given by the testator, he draw the attention of this Court to Exs.A7 and A11 letters written by the second Respondent addressed to the appellant. The relevant portion of Ex.A7 runs as follows:- "I will not celebrate the festival. I have already spent Rs.300/-. I will claim from you whatever loss I may incur in this connection." The relevant portion of Ex.A11 runs as follows:- "By sending part payment and saying spent for other https://hcservices.ecourts.gov.in/hcservices/ items will not be an excuse. I am spending more than Rs.600/- for the utsavams. If money mentioned is not sent, I may be forced to stop the utsavam to