K.S. Palanisami (Dead) Through Lrs vs Hindu Community,Citizens Of ...

3. Brief facts of the case necessary to be noted for deciding these appeals are:

After execution of the Will, on 5.10.1969 Palaniappa Chettiar died. After the death of Palaniappa Chettiar, Rangammal alienated about 10 properties by separate sale deeds which were in her name as well few properties which were in the name of her deceased husband.

(B) Defendant Nos.4 and 5 claimed that Rangammal by a registered Will dated 27.11.1980 bequeathed her entire properties in favour of defendant Nos.4 and 5. Smt. Rangammal died on 24.12.1980. After the death of Rangammal, defendant Nos.4 and 5 made several alienations of the properties belonging to Rangammal and her deceased husband on the strength of Will dated 27.11.1980.

(C) Respondent No.1 claiming to be representative of Hindu Community in General and Citizens of Gobichettipalayam filed Original Suit No.76 of 1981 impleading Commissioner of Hindu Religious and Charitable Endowment, Madras as defendant No.1, Revenue Divisional Officer, Gobichettipalayam as defendant No.2 and District Munsif, Gobichettipalayam as defendant No.3 along with other defendants who claimed to be transferees from Rangammal. Defendant Nos.4 and 5 were impleaded who claimed a Will dated 27.11.1980 from Rangammal of the entire properties apart from sale deed from Rangammal. Plaintiffs’ case in the suit was that Palaniappa Chettiar and his wife, Rangammal by registered Will dated 27.9.1968 created a Trust and made arrangements for due performance of charitable objects. The power of management and administration of the Trust was given in the Will to defendant Nos.1 to 3 who were authorised to deal with the Trust property without any power of alienation. It was pleaded that Will dated 27.9.1968 was a mutual and irrevocable Will. It was pleaded that Palaniappa Chettiar and his wife during their life time could not have acted in derogation of the Will. The plaintiff further stated that purported Will dated 27.11.1980 was not executed by Chinnammal @ Rangammal in a sound and disposing state of mind and the same was brought by defendant Nos.4 and 5 by fraud, undue influence and coercion. Defendant Nos.6 to 13 are said to be purchasers of some of the items of the suit properties from Rangammal and some from defendant Nos.4 and 5. Plaintiffs pleaded that defendants are trespassers of the trust properties covered under the Will dated 27.9.1968. The plaintiffs were interested in the Trust to be administered by defendant Nos.1 to 3 or other new Trustees to be appointed by the Court. The plaintiffs prayed for necessary arrangements for the management of the Trust requiring defendant Nos.1 to 3 to enter upon their duties as Trustees and take up the management of the Trust or make arrangement for the appointment of other Trustees for proper management of the Trust. Defendants filed written statements in the suit. (D) The trial court framed 17 issues in the suit. The trial court held that Will -Ex.P.5 dated 27.9.1968 is not a mutual Will but a joint Will and after the death of Palaniappa Chettiar the Will became irrevocable. (E) The trial court further held that Will dated 27.9.1968 is a true and valid document. It was further held that plaintiffs were entitled to represent the Hindu Community in General and Citizens of Gobichettipalayam under Order 1 Rule 8 CPC. Trial court further held that Will dated 27.11.1980 claimed by defendant Nos.4 and 5 is not proved and it has not been executed in good, sound and disposing state of mind. Ex.D-109, Will dated 27.11.1980 was held not a true and valid Will. The trial court, came to the conclusion that Trust is not formed under the Will dated 27.9.1968, hence, plaintiffs were not entitled for framing a scheme under Section 92 CPC. The suit was dismissed.

(G) The High Court disposed of both the Appeal Suits in the following manner:

20. The bone of contention between the parties is, as to whether, the Will is a joint Will or a joint and mutual Will. According to appellant, the Will is a joint will, which is revocable by testatrix after the death of her husband. On the other hand, learned counsel for the plaintiff contends that the will being joint & mutual will, there is no right of revocation in the testatrix after the death of her husband. It is contended that the will contains agreement of both husband and wife to settle their property in a particular manner i.e. for charities and the testatrix having obtained the benefit under the will after the death of her husband, cannot be allowed to revoke the will, which revocation is directly in breach of the agreement between the husband and wife and contrary to the trust created by the will.

46. The above provision in the Will clearly intends that any property purchased shall treated to be added in the document and further any property sold shall be deleted from the document and the remaining properties form part of this document.

52. We, thus, are of the clear opinion that the Will intended to give survivor absolute right with regard to properties with further intendment that after the death of survivor, the remaining property should be used for carrying out the charities. The clear intention of testator/testatrix while executing the Will that the charity shall be carried out from the income of the properties is not given up even during life time of survivor. The obligation to use the income of properties for charity is attached with the property described in the Will subject to giving survivor absolute right with regard to properties.

60. We are thus of the view that the alienation made by Rangammal in favour of appellants could not have been declared null and void as has been done by the High Court. Alienation made by Rangammal during her lifetime after the death of Palaniappa Chettiar was fully covered by paragraph 3 of the Will as noted above.

Creation of Trust by Will dated 27.9.1968

63. While noticing the nature and contents of the Will, we have noted above that in the life time of survivor charities have to be carried out from the income derived from properties without alienating the same. With regard to the charities, the Will states that during life time of testator and testatrix the properties shall be managed by themselves and desired charities be carried out either jointly or individually and in case testator and testatrix are not in a position to carry out the charity during their life time a committee consisting of three members shall perform charity. Following statement in the Will is relevant:

Will dated 27.11.1980

Reliefs I. We have come to the conclusion that Smt. Rangammal- testatrix has the absolute right to deal with the properties mentioned in the Will and alienations made by her during her life time are saved by the Will and the judgment of the High Court holding sales in favour of the appellant as null and void is unsustainable and is hereby set aside. Civil Appeal Nos.5924 of 2005, 5925 of 2005 and 5926 of 2005 are partly allowed and following sale deeds are deleted from the description of the property in the plaint. The Trust shall not include following sale deeds:

We, however, make it clear that the judgment of the High Court declaring sale deeds executed by defendant Nos.4 and 5 as null and void is maintained. All alienations made by defendant Nos.4 and 5 are null and void and those properties shall be treated as part of the Trust property.

II. Civil Appeal No. 6469 of 2005 stands dismissed.

III. The directions issued by the High Court in paragraph 116 are maintained subject to directions-I as made above. Judicial Officer having jurisdiction over the case who has been directed by the High Court to frame the scheme for the Trust shall frame the scheme expeditiously preferably within a period of three months from the date a copy of this judgment is produced before him. It goes without saying that all steps for identification, protection and management of Trust property shall be undertaken by all concerned.

69. All the appeals are decided accordingly.