IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.10.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.1005 of 1996 & C.R.P.(NPD) No.3901 of 2009 & C.M.P.Nos. 3314 of 2007 and 984 & 1092 of 2010 & M.P.No.1 of 2009 R.Vaikunthanathan .. Appellant/2nd Plaintiff in S.A.No.1005/96 & petitioner/3rd party in C.R.P. No. 3901 of 2009 Vs 1.Rajeevalochanachari (died) ...Respondent/11th Defendant 2.Sudamachariar ...Respondent/12th defendant 3.Srirama Pannachariar (3rd respondent is brought on record as LR of the decd.1st respondent vide order of court dated 22.1.2007 made in C.M.P.Nos. 18985 to 18986/03) .. Respondent in S.A.No.1005/96 Sri Jagannatha Ramanuja Das Trust Sriperumpudur rep. By its Managing Trustee Sri Ramaprappanachar Guru Sukrachari Swamy No.31, Manavala Sannathi Street Sriperumbudur Kancheepuram District. .. Respondent/Petitioner in C.R.P.No.3901/09 SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 7.3.1996 made in A.S.No.79 of 1994 on the file of the learned Principal District Judge, Chengleput reversing the Judgment and Decree dated 30.4.1993 made in O.S.No.59 of 1981 on the file of the Subordinate judge, Tiruvallur. https://hcservices.ecourts.gov.in/hcservices/ Civil Revision Petition filed under Article 227 of Constitution of India against the decree and order dated 14.07.2009 of the learned Principal District judge of Chengalpattu in Trust O.P.No.100 of 2008 for various reasons. For Appellant : Mr.V.Raghupathy(in both SA & CRP) For Respondents : Mr.S.Parthasarathy, S.C. for Mr.N.R.Anantharamakrishnan - for R-2& R-3 in S.A. Mr.A.N.Padmanabhan - for respondent in C.R.P. J U D G M E N T Since the dispute involved in the second appeal and in the civil revision petition pertains to the same trust, both the matters are taken up together and disposed of by this common judgment. 2. The above Second Appeal arises against the judgment and decree in A.S.No.79 of 1994 on the file of the Principal District Court, Chengleput reversing the Judgment and Decree in O.S.No.59 of 1981 on the file of the Subordinate Court, Tiruvallur. 3. The second plaintiff in the suit is appellant in the above second appeal. The respondents 1 and 2 are the defendants 9 and 10 and the 3rd respondent is the legal representative of the deceased first respondent. 4. The above Civil Revision Petition has been filed against the order passed in O.P.No.100 of 2008 on the file of Principal District Court, Chengalpattu. The petitioner in the Civil Revision Petition is a third party to the proceeding. The respondent was the petitioner in the trust O.P. 5. The plaintiff filed the suit in O.S.No.59 of 1981 on the file of the Subordinate Court, Tiruvallur to pass a decree framing a scheme for the proper management of Deep Narayandoss Trust, safeguarding its properties and appointing trustees, committees, office bearers etc., with such powers and duties for carrying out the regular kainkaryams and for the performance of activities relating to the trust fully specified under the will dated 11.1.1910 and with a provision to put the trustees appointed in possession of the schedule mentioned properties and the moneys belonging to the trust. 6. The brief case of the plaintiffs in the suit are as follows:- (i) According to the plaintiffs, one Deep Narayandoss https://hcservices.ecourts.gov.in/hcservices/ endowed the house and lands in Sriperumbudur village, which is suit 'A' schedule property and also a sum of Rs.15,000/- in cash for performing certain charities and kainkaryams mentioned in his will dated 11.1.1910. Under the said will, the said Deep Narayandoss appointed (1) Kulasekara Ramanujadoss (2)Madusudana Ramanujadoss (3) Deva Ramanujadoss (4) Dayalu Ramanujadoss and (5) Kanyalal Sait as trustees to administer the trust and carry out the charities and other assets specified in the said will. As per the said will, if any trustee died or had to quit the office, other trustees should co- opt another person from the family of the retiring or deceased trustee as a trustee and only in the absence of any one in the family to be trustee, can take a stranger as a trustee. On the death of Kulasekara Ramanujadoss, since he had no son, his brother's son i.e., first plaintiff's elder brother Ramakrishnamachar automatically became the trustee in his place. The trustees were administering the trust guided Ramakrishnamachar as the Managing Trustee. In 1919, Ramakrishnamachar died and the first plaintiff as his brother and heir, took charge as managing trustee. But after some time, since the first plaintiff could not always be in the village but had to be at Chennai and had to go often to northern part of India found it impossible to be incharge of administration, on his behalf, appointed one Jagannathadoss Trustee to specifically carry out the objects of the trust. The said Jagannathadoss was entrusted with the immovable properties, cash and brass vessels to perform all the charities and kainkaryams as per the will on behalf of the trustees. The said Jagannathadoss took possession of the properties and was administering the trust. During the period of his administration, with a cash entrusted to him and with the income from the trust properties, purchased lands and house properties described in suit 'B' schedule. As such, the said properties purchased by Jagannathadoss also form part of the trust properties. (ii) According to the plaintiffs, after the death of Jagannathadoss on 10.11.1957, the trust was being administered by the first defendant. The plaintiffs came to know that Jagannathadoss has left behind a will dated 5.10.1957 to create a fresh trust of the properties described in suit A, B, and C schedule, treating the said properties as his self acquired properties and appointing defendants 1 to 3 and Devagrandana Chari and Garudothvaja Chariar as trustees. The said Jagannathadoss had no right, title or interest in the properties and to alienate them, as he was acting only as an agent of the trustees appointed under the will of Deep Narayandoss. The will dated 5.10.1957 of Jagannathadoss is illegal, invalid and inoperative. (iii) According to the plaintiffs, the defendants 1 to 3, who are in possession of the trust properties, namely, suit A and B schedule, have no right to be trustees or to be in possession of the trust properties. The defendants 1 to 3 are not administering the trust even as per the will of Jagannathadoss. The first defendant https://hcservices.ecourts.gov.in/hcservices/ had settled the trust lands in favour of the 4th defendant. He has also gifted away the lands described in item No.2 in schedule 'C' to the 5th defendant. That apart, he has also alienated item Nos. 3 and 4 of 'C' schedule, to defendants 6 and 7. The defendants 2 and 3 are acting in collusion with the first defendant against the interest of the trust. The defendants 1 to 3 are not entitled to be trustees or to be in possession of the trust properties. They are liable to be dispossessed and fresh trustees as per will dated 11.1.1910 of Deep Narayandoss along with plaintiffs have to be appointed and the first plaintiff in view of the said relationship, is entitled to continue as a trustee. (iv) According to the plaintiffs, the first plaintiff is the brother's son of Kulasekara Ramanujadoss, one of the trustees appointed under the will of Deep Narayandoss and he is entitled to continue as a trustee and if for any reason it is found that he is ceased to be one, he is entitled to be appointed as one of the trustees. The settlement deed dated 12.1.1971 in favour of 4th defendant and settlement deed dated 12.5.1971 in favour of 4th defendant are invalid and illegal. In these circumstances, the plaintiffs filed the suit for framing of scheme in respect of trust created by Deep Narayandoss. 7. The brief case of the first defendant is as follows: (i) According to the first defendant, the plaintiffs are not at all interested persons as defined in section 6(15) of the Hindu Religious and Charitable Endowment Act nor they are interested persons within the definition of section 92 C.P.C. They are permanent residents of Chennai and never came and resided at any time in the suit premises nor did they evince any interest at any time sofar in carrying on the charities or services in the temple. The only authority that can settle a scheme or to deal with any dispute regarding this endowment is only Hindu Religious and Charitable Endowment Board. The suit is barred under section 9 C.P.C., by virtue of express bar under the Endowment Act 22 of 1959. In spite of the sanction of Advocate General, the suit is not maintainable inasmuch as section 92 C.P.C., will not apply to this trust which is religious and charitable endowment as defined in Act 10 of 1951. (ii) According to the first defendant, the suit trust is is a public trust and the said trust was created by Deep Narayandoss for public purpose and religious purpose. Therefore the suit is barred under section 108 of Endowment Act. Soon after the execution of will appointing trustees, the trustees entered into possession and took charge of the trust and carried on the duties and Kainkaryams as propounder in the will. (iii) According to the first defendant, C.Kulasekara Ramanujadoss was a bachelor and he had no brothers. Kulasekara Ramanujadoss belonged to Tiwari section of Uttarathis and the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs belonged to Oja sub section. Kulasekara Ramanujadoss died before 1917. Kulasekara Ramanujadoss was one of the five trustees and he alone could not have appointed Jagannathadoss ignoring the other four trustees in the trust without other trustees in the trust. Jagannathadoss was only an assistant of all the trustees and he continued to assist the other trustees in the management, as all the three trustees out of five died before 1922 leaving behind only the two trustees namely, Madhusundanadoss and Kanyalal Sait. (iv) According to the first defendant, at the time of appointment of trustees in 1922 only properties belonging to the trust as provided by Deep Narayandoss were only 6.53 acres and they did not yield appreciable income. Jagannathadoss by his ability and tact purchased lands gradually not at all with the aid of Deep Narayandoss trust or income there from, but from his own moneys, he got from various sources. There were other trustees till 1933 and 1934 and all died one by one in 1934 or 1935 and there was only Jagannathadoss left alone as sole trustee and he was managing as such and conducting the kainkaryams later till 1967 when he executed a trust deed and died. During all these period from 1916 till 1957 and later till 1972, the plaintiffs were never heard of and none of them ever came near the trust and its properties. (v) According to the first defendant, all the properties acquired by Jagannathadoss were his self acquired properties. Therefore, he had every right to deal with them. Jagannathadoss has every right to execute a will and create a trust of his own. He was not the agent of the trustees appointed under the will of Deep Narayandoss. Jagannathadoss dedicated all his properties for the charitable and religious trust by his will dated 5.10.1957 and appointed five trustees namely, defendants 1, 2 and 3 and Garudodochar and Lakshmanachar to carry out the trust dated 5.10.1957 to carry out trust dated 5.10.1957. Jagannathadoss died soon after on 10.11.1957. After his death, defendants 1 to 3 and other two trustees, administered the trustees. Even otherwise, Jegannathadoss as one of the trustees, appointed in 1922 as sole surviving trust under a deed, had every right to appoint trustees in pursuance of the provisions of the Deep Narayandoss Trust. (vi) According to the first defendant, the property which was settled in favour of 4th defendant measuring an extent of 1.17 acres was purchased by the first defendant himself on 29.11.1962. The first plaintiff was never the trustee and was never connected with the trust. In these circumstances, the first defendant prayed for dismissal of the suit. 8. The brief case of the fourth defendant is as follows: According to the fourth defendant, the said Jagannathadoss during his life time while he was in management of the trust, purchased large extent of properties. During the fag end of his https://hcservices.ecourts.gov.in/hcservices/ life, with the object of ensuring proper management of the mutt and the performance of certain religious purpose after his life time, executed a will under which he appointed the first defendant and 5 others as trustees for the said purpose. The first defendant during his life time of Jagannathadoss was doing domestic work and keeping the Mutt premises clean and was assisting him in the performance of charities and kainkaryams done by him. Jagannathadoss in consideration of the continued services rendered by the first defendant to the Mutt with the knowledge, consent and concurrence of the other trustees, settled item No.1 of the 'C' schedule property, which was acquired by two settlement deeds executed by him, in her favour on 12.1.1971 and 12.5.1971. In these circumstances, the fourth defendant prayed for dismissal of the suit. 9. The brief case of the 7th defendant is as follows: According to the 7th defendant, the first defendant purchased an extent of 27 cents comprised in item No.1 of the 'C' schedule property and sold the same to the 7th defendant on 10.11.1967 and he also took possession of the same. The property not being the trust property but belonging to the first defendant. There was no breach of trust or any wrongful act. The first defendant after purchasing the property finding that there was no income accruing from it, sold it to the 7th defendant. The 7th defendant is not in possession of the property. Therefore he is not a necessary party to the suit. In these circumstances, the 7th defendant prayed for dismissal of the suit. 10. Before the trial court, on the side the plaintiffs, 4 witnesses were examined and 15 documents Exs. A-1 to A-15 were marked and on the side of the defendants, 11th witness was examined as D.W.1 and 23 documents Exs. B-1 to B-23 were marked. 11. The trial court after taking into consideration, the oral and documentary evidences of both sides, decreed the suit. 12. Aggrieved over the judgment and decree of the trial court, the defendants 9 and 10 ( who were arrayed as defendants 11 and 12 in the suit) preferred appeal in A.S.No.79 of 1994 on the file of the Principal District Court, Chengleput and the lower appellate court after taking into consideration the materials available on record, reversed the judgment and decree of the trial court and allowed the appeal. 13. Aggrieved over the judgment and decree of the lower appellate court, the second plaintiff has filed the above second appeal. https://hcservices.ecourts.gov.in/hcservices/ 14. The appellant in the second appeal has filed the C.M.P.No.1092 of 2010 to mark 12 additional documents. According to the petitioner, the respondents have encumbered the trust properties subsequent to granting of injunction by this court in C.M.P.No.6860 of 1996 and to prove the subsequent conduct and activities of the respondents contrary to the terms of the will, the petitioner has filed the above petition to receive the said documents as additional evidence. 15. C.M.P.No.984 of 2010 has been filed by the respondents in the second appeal. According to the petitioners, the respondent/appellant along with others, with common intention to cheat and defraud the petitioners and the trust, created false, fictitious and fraudulent documents and registered the same on the file of Sub Registrar, Sriperumbudur. Since the said documents were not in the custody of the petitioners, they obtained certified copies of the sale deeds from the concerned Sub Registrar's office and sought to mark four documents as additional evidence. 16. C.M.P.No.3314 of 2007 has been filed by the appellant to implead the Deep Narayandoss Trust as the fourth respondent in the second appeal. According to the petitioner, since the lower appellate court set aside the judgment and decree of the trial court on the ground that the trust has not been impleaded, he has filed the above petition to implead the trust as a party in the second appeal in order to over come the technical plea raised by the respondents. 17. The third respondent in his counter has stated that the non impleading of the trust is fatal and the trust is a necessary and proper party. The suit was filed in the year 1972 and now in the year 2007, the petitioner seeks to implead the trust as a respondent in the second appeal. According to the third respondent,the trust is a necessary and proper party. Therefore the non impleading of the trust in the suit is not merely a technical plea. Therefore, the third respondent prayed for dismissal of C.M.P.No.3314 of 2007. 18. The proposed party/Trust in their counter has stated that the present petition was filed only to fill up the vacuum and to cure the flaw in the suit. At the time of institution of the suit, consent was obtained from the Advocate General only for original defendants 1to 8 and no sanction/leave was obtained against the trust. Hence, in the absence of consent from the Advocate General, the trust cannot be impleaded as a party in the suit under section 92 C.P.C. The present application filed in the year 2007 is barred by limitation. The present application cannot be taken up under section 151 C.P.C. when there is a specific provision under Order I Rule 10(2) C.P.C. is very much available. The reason for filing the application under section 151 C.P.C. is just to surpass the limitation and the same cannot be permitted under section 151 C.P.C. In these circumstances, the proposed party/trust prayed for https://hcservices.ecourts.gov.in/hcservices/ dismissal of C.M.P.No.3314 of 2007. 19. The brief case of the respondent in the civil revision petition is as follows: According to the respondent (who was the petitioner in Trust O.P.), he filed the trust O.P. seeking permission to sell the petition mentioned properties at the rate not less than Rs.6000/- per cent and for other reliefs. According to the respondent, the petition mentioned lands were scattered and not in one block. If the lands are kept vacant, there is every possibility of encroachment and the respondent trust will be forced to resort to prolonged litigation in civil and criminal courts. Therefore, the respondent trust has resolved to dispose of the properties on the prevailing market value and invest the amount derived from the same and to meet out the expenses and carrying out the object of the trust. Hence the respondent sought the permission of the District court to dispose of the properties. 20. Before the trial court, the managing trustee of the trust was examined as P.W.1 and 15 documents Exs. P-1 to P-15 were marked and the guideline value was marked as Ex.C-1. 21. The District Court, after taking into consideration the case of the respondent, permitted them to sell the petition mentioned properties for not less than a sum of Rs.4,36,38,200/-. Aggrieved over the order passed by the District Court, Chenglepet, the third party/petitioner has filed the above civil revision petition. 22. According to the petitioner, since the trust O.P. is a summary procedure, the District Court, Chenglepet ordered the petition as prayed for. The respondents in the above second appeal had set up the respondent in the civil revision petition with ulterior motive to file the trust O.P. Therefore, the fair and final order in Trust O.P. Is liable to be set aside. 23. Heard Mr.V.Raghupathy, learned counsel appearing for the appellant in the second appeal and learned counsel for the petitioner in the civil revision petition, Mr.S.Parthasarathy, learned senior counsel for the respondents 2 and 3 in the second appeal and Mr.A.N.Padmanabhan, learned counsel for the respondent in the civil revision petition. 24. At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration:- " Whether the lower appellate court is right in dismissing the suit filed for framing the scheme on the ground that Deep Narayandoss trust has not been impleaded as a party to the suit there? " https://hcservices.ecourts.gov.in/hcservices/ 25. So far as C.M.P.No.1092 of 2010 is concerned, the appellant in the second appeal has filed the petition to mark 12 additional documents. The respondents did not file any counter and have no objection for marking those documents. Since the respondents themselves admitted the execution of the said documents, this petition is ordered and the documents are marked as Exs. B-24 to B- 35. 26. With regard to C.M.P.No.984 of 2010 is concerned, the respondents in the second appeal have filed the petition to file four additional documents. The appellant have no objection for allowing the said petition. The appellant also admitted the execution of the said document. In these circumstances, the petition is ordered and the documents are marked as Exs.A-16 to A-19. 27. On a careful consideration of the materials available on record and the submissions made by both the counsels, it could be seen that under Ex.A-1 will dated 11.1.1910 one Deep Narayandoss formed a trust with 5 founder trustees. In the said will Deep Narayandoss appointed (1) Kulasekara Ramanujadoss (2)Madusudana Ramanujadoss (3) Deva Ramanujadoss (4) Dayalu Ramanujadoss and (5) Kanyalal Sait as trustees. It is also not in dispute that Deep Narayandoss executed Ex.A-1 will for performing certain charities and kainkeryams. As per Ex.A-1 will, if any trustee died or had to quit the office, other trustees should co-opt another person from the family of the retiring or deceased trustee as a trustee and if there is no one in the family to be trustee, can take a stranger as a trustee. According to the plaintiffs, on the death of Kulasekara Ramanujadoss, as he had no son, his brother's son i.e., first plaintiff's elder brother Ramakrishnamachar automatically became the trustee in his place. The trustees were administering the trust guided Ramakrishnamachar as the Managing Trustee. According to the respondents, the appellant alienated the trust properties against the terms of Ex.A-1 will. 28. Learned counsel appearing for the appellant, in support of his contention, relied on the following judgments: (i) AIR 1925 MAD 212 (P.N.Malkajigunda and others v. Ramaswami Chettiar and others) wherein the Division Bench of this court held that in a suit under section 92 C.P.C. relief can be granted against the trustee but not against the alienees of the trust property. (ii) 1993(2) MLJ 390 ( S.Govindasamy Naidu and others v. Poorna Valli and others) wherein this court held that in the case of the suit temples belong to a particular community, the plaintiffs are worshipers in the temple, the suit having been filed by them plaitniff representing the entire members of the community, the https://hcservices.ecourts.gov.in/hcservices/ worshipers can maintain the suit for the purpose of preserving the properties endowed to the temple. (iii) 2002(3) MLJ 611 (Gopala Krishnaswamy Pircture Trust v.Nathaswaram Govindasamy Pillai and others) wherein this court held that a worshiper is entitled to file a suit for recovery of possession when there is wrongful alienation of the trust property. 29. Countering the submissions made by the learned counsel for the appellant, learned senior counsel appearing on behalf of the respondents submitted that the suit is not maintainable, since the trust was not made as a party to the proceeding. In support of his contention, he relied upon the following judgments : (i) 100 LW 182 (S.Guhan and others v. Rukmini Devi Arundale and others.,) wherein the Division Bench of this court held as follows: "Merely because a sanction is granted, it does not mean that such a suit can be decreed. For the purposes of granting sanction, certain relevant factors are taken into account, and a conclusion arrived at therein, does not preclude the court either to dismiss a suit or render a different finding on going into the merits of the matter on the points which were taken into account in the application." (ii) 2004(1) CTC 321 (L.M.Menezes and others v.Rt.Rev.Dr.Lawrence Pius and others) wherein the Division Bench of this court held that the main purpose of section 92 is to give protection to