Madras High Court
Singaravelu(Died) vs M.P.S.Swaminathan(Died) on 24 June, 2021
1 S.A.NO.89 OF 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 24.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.89 of 2001 and
C.M.P.No.964 of 2001
1. Singaravelu(Died) ... Appellant/Respondent/
Plaintiff
2. Rajathi
3. Vijaya Kumar
4. Udhaya Kumar
5. Ashok Kumar
6. Maheswari
(Appellants 2 to 6 are brought on record as LRs
of the deceased sole appellant vide Order
dated 14.06.2004 made in C.M.P.No.14194 of 2004)
... Appellants 2 to 6
Vs.
1. M.P.S.Swaminathan(Died) ... Respondent/Appellant/
Defendant
2. Ambikavathi
3. Geetha ... Respondents 2 and 3
(Respondents 2 & 3 are brought on record as LRs
of the deceased sole respondent vide Order dated
26.09.2019 made in C.M.P.(MD)Nos.4323 to 4325 of 2017)
Prayer: Second appeal filed under Section 100 of
C.P.C., to set aside the decree and judgment passed in A.S.
No.107 of 1998 dated 24.10.2000 on the file of the learned
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1/13
2 S.A.NO.89 OF 2001
Additional Subordinate Judge, Kumbakonam and confirm the
decree and judgment passed in O.S.No.407 of 1995 dated
07.10.1998 on the file of the learned District Munsif,
Valangiman.
For Appellants : Mr.D.Srinivasaraghavan
For Respondents : Ms.Maria Vinola
***
JUDGMENT
This second appeal arises out of O.S.No.407 of 1995
on the file of the District Munsif Court, at Valangiman.
2. The said suit was filed by one M.P.Singaravelu
against his nephew M.P.S.Swaminathan for the relief of
permanent injunction in respect of the suit property and for
restraining him from interfering with the plaintiff's
management and enjoyment of the trust property. The subject
matter pertained to the management of a temple and the
property endowed for its administration. A trust was created
by one Muthukumara Mudaliyar way back in the year 1935.
Muthukumara Mudaliyar had a son by name Panchanatha
Mudaliyar. Panchanatha Mudaliyar had four sons, namely,
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3 S.A.NO.89 OF 2001
Subramaniya Mudaliyar, Shanmugha Mudaliyar, Singaravelu
Mudaliyar and Rajasekar.
3. The case of the plaintiff was that as per the trust
deed dated 01.07.1935(Ex.A.1), Muthukumara Mudaliyar had
set apart the suit property for performing certain religious
charities. It was not to be alienated or encumbered for any
reason whatsoever. The trust deed states that Muthukumara
Mudaliyar was to be the lifetime trustee. The mode of
succession to the office of the trustee was prescribed in the
following terms:-
“... vdf;F gpwF vd; tk;r guk;giuapYs;s vd;
thhpRfspy; N[\;lh;fSk; thhpRfpukg;gb
bu];bfshfTk; ,Ue;J nfhz;L...”
According to the plaintiff, even during the lifetime of
Panchanatha Mudaliyar, his oldest son Subramaniya
Mudaliyar as well as the second son Shanmugha Mudaliyar
had given a public notification totally disassociating
themselves with the family affairs. It was the third son/plaintiff
who was taking care of the temple affairs all these years.
While so, the defendant who was the son of Subramaniya
Mudaliyar allegedly attempted to commit encroachment over
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4 S.A.NO.89 OF 2001
the suit property and enter the temple premises forcibly. That
necessitated the filing of O.S.No.407 of 1995.
4. The suit was resisted by filing a written statement.
The defendant conceded the execution of the trust deed dated
01.07.1935 and the inalienable character of the suit
properties. However, he claimed that it was only he who was
managing the temple.
5. According to the plaintiff, the eldest of the heirs
alone would be entitled to manage the trust. On the other
hand, the defendant contended that the senior among the
descendants of the eldest male member in the line of
succession should be the trustee. According to the plaintiff,
Panchanatha Mudaliyar's eldest son was Subramaniya
Mudaliyar and the defendant being the eldest son of
Subramaniya Mudaliyar, he alone was entitled to function as a
trustee. Based on the rival pleadings, the learned trial Munsif
framed the necessary issues. The plaintiff examined himself as
P.W.1 and two others as P.W.2 and P.W.3. The defendant
examined himself as D.W.1 and two other witnesses as D.W.2
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5 S.A.NO.89 OF 2001
and D.W.3. On the side of the plaintiff, Ex.A.1 to Ex.A.10 were
marked. Ex.B.1 to Ex.B.4 were also marked on the side of the
defendant. After consideration of the evidence on record, the
learned trial Munsif came to the conclusion that the eldest son
as well as the second son of Panchanatha Mudaliyar having
cut off their links with the family must be deemed to have
relinquished their interest in the trust also. Hence, the suit
was decreed as prayed for by judgment and decree dated
07.10.1998.
6. Questioning the same, the defendant filed A.S.
No.107 of 1998 before the Additional Sub Court,
Kumbakonam. By judgment and decree dated 24.10.2000, the
first appellate Court reversed the judgment and decree passed
by the trial Court and allowed the appeal and dismissed the
suit. Challenging the same, this second appeal came to be
filed.
7. This second appeal was admitted on the following
substantial question of law:-
“ii) Has not the first appellate Court
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6 S.A.NO.89 OF 2001
erred in rejecting Ex.A.2 paper publication dated
08.08.1941 when the same is admissible under
Section 81 of the Indian Evidence Act?”
8. Heard the learned counsel on either side.
9. The learned counsel appearing for the appellants
reiterated all the contentions set out in the memorandum of
grounds and called upon this Court to answer the substantial
question of law in favour of the appellants and allow this
appeal and restore the decision of the trial Court.
10. Per contra the learned counsel appearing for the
respondents submitted that the first appellate Court had
correctly interpreted the terms of Ex.A.1 trust deed. Ex.A.2
being a mere paper publication could not have been marked
through any of the plaintiff's witnesses. It was rightly rejected
as inadmissible. She submitted that the impugned judgment
and decree of the first appellate Court does not call for
interference.
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7 S.A.NO.89 OF 2001
11. During the pendency of this second appeal, both
the plaintiff as well as the defendant passed away and their
legal heirs have come on record.
12. Ex.A.2 is the paper publication said to have been
given by the father of the defendant and his immediate
younger brother Shanmugha Mudaliyar way back in the year
1941. The trial Court accepted the same as an admissible
piece of evidence and came to the conclusion that the
defendant's family had relinquished their interest in the said
trust also. To the first appellate Court Ex.A.2 is inadmissible.
To answer this question, one must turn to Section 81 of the
Indian Evidence Act,1872 which is as follows:-
81. Presumption as to Gazettes,
newspapers, private Acts of Parliament and
other documents -
“The Court shall presume the
genuineness of every document purporting to be
the London Gazette or any Official Gazette, or
the Government Gazette of any colony,
dependency or possession of the British Crown,
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8 S.A.NO.89 OF 2001
or to be a newspaper or journal, or to be a copy
of a private Act of Parliament of the United
Kingdom printed by the Queen’s Printer and of
every document purporting to be a document
directed by any law to be kept by any person, if
such document is kept substantially in the form
required by law and is produced from proper
custody.”
The said provision calls upon the Court to presume the
genuineness of every document purporting to be a newspaper
or journal. The suit was filed in the year 1995 and when
Ex.A.2 was marked as an exhibit, it was already an ancient
document. The original newspaper itself was marked before
the Court and on going through its contents, I am satisfied
that “ajhh;j;jtrdP” must have been a newspaper containing
legal news alone. I answer the substantial question of law in
favour of the appellant and I hold that Ex.A.2 is an admissible
piece of evidence. Of course, no presumption attaches its
contents. The publication caused by the two sons of
Panchanatha Mudaliyar talks about the financial stress which
the family was then undergoing. I am satisfied that Ex.A.2 has
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9 S.A.NO.89 OF 2001
not been invented for the purpose of the case. Vide the
publication made in Ex.A.2, the defendant's father had washed
his hands off totally. He wanted to distance himself from his
father and his brothers. He did not want to be touched by their
liabilities.
13. Even though I hold that the father of the
defendant had relinquished his interest in the entire subject
matter, that would not operate as an estoppel against the
defendant. The terms of the trust deed have not been altered.
So long as the terms of the trust deed remain as they are, the
Court is bound to give effect to the same. In matters such as
this, the primary duty of the Court is to give effect to the
intention of the author of the trust deed. Merely because,
Subramaniya Mudaliyar had decided to say goodbye to the
larger family, that cannot mean that his son
M.P.S.Swaminathan cannot return to his roots. Therefore,
even though I hold that Ex.A.2 is an admissible document, the
same cannot be put against the defendant.
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10 S.A.NO.89 OF 2001
14. Now the focus has to be on the meaning to be
attached to the terms of the document. The relevant terms
governing the succession to the office of the trustee have
already been extracted. The learned counsel appearing for the
respondents would urge that the founder of the trust
contemplated that the eldest son or the eldest among his heirs
should function as the trustee. The founder had only employed
the expression “vd; thhpRfspy; N[\;lh;fSk;”. He did not use the
expression “eldest son”.
15. Shri.Rangarajan Narasimhan who was also
watching the proceedings suggested that the expression “thhpR
fpukg;gb” should be read as prefix to the expression,
“N[\;lh;fSk;;”. His interpretation appeals to me. So
understood, the eldest sons in the respective branches would
be entitled to function as trustees. Panchanatha Mudaliar had
four sons. It is stated that the second son Shanmugha
Mudaliyar did not have any issue. The fourth son Rajasekar
also is not figuring anywhere in the picture. That leaves us
only with two branches: Subramaniya Mudaliyar branch and
Singaravelu Mudaliyar branch. Since M.P.S.Swaminathan,
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11 S.A.NO.89 OF 2001
S/o.Subramaniya Mudaliyar is also no more, his eldest son
Saravanan has to represent the first branch. Likewise in
Singaravelu Mudaliyar branch is represented by
Thiru.Vijayakumar. Thiru.Vijayakumar is now aged about 61
years. Saravanan, grand son of Subramaniya Mudaliyar is
aged about 44 years.
16. In the light of the interpretation now adopted,
Thiru.Vijayakumar and Saravanan will have to function as
trustees in rotation. “ fpukg;gb” means “by turns”. It is agreed
that the trustees will occupy the office for a period of two
years by turns. Saravanan representing Subramaniya
Mudaliyar Branch will be the trustee for a period up to
31.07.2023. Thiru.Vijayakumar will be the trustee for a period
of two years thereafter and the terms of the trusteeship will
alternate in the manner mentioned above. If any
Kumbabishegam is to be performed, it will be organised jointly
and no one will be entitled to first honour. The judgment and
decree passed by the first appellate Court is set aside.
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12 S.A.NO.89 OF 2001
17. This second appeal is disposed of in the above
terms. If any difficulty or doubt arises in the matter of
administration of the suit temple, the same can be resolved by
filing a miscellaneous petition before the first appellate Court
and there is no need to file any separate suit. No costs.
24.06.2021
Index : Yes / No
Internet : Yes/ No
PMU
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
To:
1. The Additional Subordinate Judge,
Kumbakonam.
2. The District Munsif,
Valangiman.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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13 S.A.NO.89 OF 2001
G.R.SWAMINATHAN,J.
PMU
S.A.No.89 of 2001
24.06.2021
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