Madras High Court
N.Brindha Chelian vs E.Senthil Ananth on 8 February, 2022
CRP.No.163 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.02.2022
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
CRP.No.163 of 2022
and CMP.No.892 & 895 of 2022
1.N.Brindha Chelian
2.Sureya Nedunchelian
...Petitioners
Vs
1.E.Senthil Ananth
2.R.Malarvizhi
3.J.Jayarathna
4.R.Keerthika
5.A.Rameshkumar
6.R.Shanthi
7.G.Rajkumar
8.K.R.Selvam
9.VSA Educational Trust
Represented by its Authorised Signatory,
having registered Office at D.No.2/54, Veerapandiayar
Thottam, Agrahara Poolavari, Salem 636 010.
10.The Sub Registrar
Veerapandi having office at
Sub Registrar Office,
Attayampatti Main Road,
Veerapandi, Salem Taluk,
Salem District.
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1/11
CRP.No.163 of 2022
11.The State of Tamilnadu,
Represented by the District Collector,
Salem having office at Salem
Collectorate, Salem 636 001.
12.A.Maheshwari
13.A.Prabhu
14.M.Kayalvizhi
15.M.Nirmala ...Respondents
PRAYER Civil Revision Petition is filed under Article 227 of the
Constitution of India, to set aside the order passed in I.A.No.2 of 2021 in
unnumbered O.S.No. /2021 dated 11.11.2021 on the file of the Principal
Subordinate Judge, Salem to number and take up the O.S.No. /021.
For Petitioners : Mr.V.Vijayashankar
For R-10 & 11 : Mr.D.Gopal
Government Advocate
ORDER
The plaintiff has filed this revision petition, challenging the
order passed by the learned Principal Subordinate Judge, Salem in
ordering notice in an application filed seeking leave under Section 92 of
the Code of Civil Procedure to institute the suit. The relevant facts
necessary for considering this limited issue are as follows:-
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CRP.No.163 of 2022
2.The plaintiff had filed the unnumbered suit on the file of the
learned Principal Subordinate Judge, Salem against the respondents
herein seeking the following reliefs:-
“a. Declaring the so called resignation of the plaintiffs
from VSA Educational and Charitable Trust is non-est
in the eyes of law as the same is forged;
b. Declaring the Additional Trust Deed dated
22.09.2020 under Doc.No.17/2020 registered in the
office of Sub Registrar, Veerapandi in VSA
Educational and Charitable Trust as invited in law as
the same is done without complying Sec.92 of C.P.C.
c. Declaring the sale deed dated 05.03.2021 executed
by the then Managing Trustee on behalf of the 10 th
defendant in favour of defendants 7 and 8 under
Doc.No.1192/2021 registered in the office of the Sub
Registered, Veerapandi as invalid in law as the
provisions of Section 92 of CPC has not complied with;
d. Declaring the sale deed dated 05.03.2021 executed
by the then Managing Trustee on behalf of the 10 th
defendant in favour of .
e. Declaring the Board Resolution dated 20.08.2020
inducting new trustees to the Board of Trustees of VSA
Educational and Charitable Trust without the consent
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CRP.No.163 of 2022
of the lifetime trustees of the Trust is invalid in law;
f. Declaring the removal of the plaintiffs from the
Board of Trustees of VSA Educational and Charitable
Trust is invalid in law as the provisions of Sec.92 of
CPC is not complied with;
g. Declaring the resolution dated 20.08.2020 passed
in the Board of Lifetime Trustees of VSA Educational
and Charitable Trust for incorporating the resignation
of the plaintiffs from the Trust is invalid in law;
h. Declaring the induction of defendants 1,3 and 5 as
new trustees to the Board of Trustees is invalid as the
same is against the terms of the original trust deed
dated 09.06.2008 under Doc.No.489/2008;
i. Restraining the defendants 1 to 5 by way of a
permanent injunction from in any way passing
resolutions in the Board of Trustees for sale of
property of the Trust and election of Managing
Trustee;
j. Restraining the defendants 7 and 8 their men and
agents by way of permanent injunction from in any way
alienating or encumbering the suit properties to third
parties;”
3.The cause of action for filing the suit is that the 9 th defendant
registered Trust had purchased property and the Trust had been formed
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CRP.No.163 of 2022
on 09.06.2008, registering the Deed in the office of the Sub-Registrar at
Veerapandi. The first trustees of the Trust was the family of Veerapandi
S.Arumugam. The plaintiffs are the wife and daughter of the first son of
said Veerapandiya S.Aarumugam. They would contend that a document
had been fraudulently created, stating that the plaintiffs had resigned
from the Board of Directors on account of their personal commitment.
The plaintiff would submit that such a letter had not been given by them
to the Board as they had no intention to resign from the Trust. On the
basis of this resignation letter, it appears that the Board had been
reconstituted and one of the trustees, namely the second defendant herein,
had been given unilateral powers. New trustees had been inducted
without obtaining the sanction from the Competent Civil Court as
prescribed under Section 92 of the Code of Civil Procedure.
4.Thereafter several anomalies and manipulations have taken place
in respect of the Trust. Aggrieved firstly by their removal on the basis of
the forged document and secondly by reason of the activities of the
second defendant, the petitioners have come forward with the suit.
5.The urgency for filing the suit was also on account of the
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CRP.No.163 of 2022
alienation that they have been done and continuing to be done by the so
called present trustees. Along with the suit, the plaintiff has filed a
petition for seeking leave to institute the suit. In the plaint, the petitioner
has in very great detail narrated the urgency for filing the suit which is
primarily to obtain Interim orders of injunction from the Court.
6.In these circumstances, the learned Principal District Subordinate
Judge, Salem has mechanically ordered notice to the respondents. There
are about 15 respondents and the learned Counsel for the petitioner
would submit that by the time the notice is served, most of the properties
would have been alienated and therefore there is an urgency for filing the
suit numbered.
7.Considering the above submissions and also taking note of the
fact that the grant of leave to file the suit is primarily an issue between the
Court and the plaintiffs, this Court is passing an order in the CRP at the
admission stage itself.
8.The 10th and 11th respondents were represented by the
Government Advocate, Mr.D.Gopal. Taking into account the contents of
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CRP.No.163 of 2022
the plaint, the order of the learned Principal Subordinate Judge, Salem in
directing the notice is set aside and leave is granted in I.A.No.2 of 2021
and the learned Judge is directed to number this suit.
9.This Court also places reliance on he Judgment of the Hon'ble
Supreme Court in one of its early Judgment reported in [1991 AIR (SC)
221] in the case of “R.M.Narayana Chettiar Vs.V.N.Lakshmanan
Chettiar” wherein the Hon'ble Judges had traced the legislative history of
Section 92:-
“The legislative history of Section 92 of the Code
indicates that one of the objects which led to the
enactment of the said section was to enable two or
more persons interested in any trust created for a
public purpose of a charitable or religious nature
should be enabled to file a suit for the reliefs set out
in the said section without having to join all the
beneficiaries since it would be highly inconvenient
and impracticable for all the beneficiaries to join in
the suit; hence any two or more of them were given
the right to institute a suit for the reliefs mentioned
in the said Section 92 of the Code. However, it was
considered desirable to prevent a public trust from
being harassed or put to legal expenses by reckless
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CRP.No.163 of 2022
or frivolous suits being brought against the trustees
and hence, a provision was made for leave of the
Court having to be obtained before the suits
instituted.”
The Hon'ble Supreme Court had also gone onto observe as follows.
“...The desirability of such notice being given to the
defendants, however, cannot be regarded as a
statutory requirement to be complied with before
leave under Section 92 can be granted as that would
lead to unnecessary delay and, in a given case,
cause considerable, loss to the public trust. Such a
construction of the provisions of Section 92 of the
Code would render it difficult for the beneficiaries
of a public trust to obtain urgent interim orders
from the court even though the circumstances might
warrant such relief being granted. Keeping in mind
these considerations, in our opinion, although, as a
rule of caution, the Court should normally give
notice to the defendants before granting leave under
the said section to institute a suit, the court is not
bound to do so. If a suit is instituted on the basis of
such leave, granted without notice to the
defendants, the suit would not thereby be rendered
bad in law or non-maintainable. The grant of leave
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CRP.No.163 of 2022
cannot be regarded as defeating or even seriously
prejudicing any right of the proposed defendants
because it is always open to them to file an
application for revocation of the leave which can be
considered on merits and according to law.”
10.Applying the above principles to the present case especially
when the plaintiff has set out the manner in which they have been
fraudulently ousted from the Board of Trustees and detailing the attempts
being made by one person to alienate the properties of the Trust, this is a
fit case where notice need not be issued to the defendants. Further it is
always open to the defendants to question the grant of leave after they
enter appearance in the suit.
The Civil Revision Petition is allowed, accordingly. Consequently,
the connected miscellaneous petitions are closed. No costs.
08.02.2022
Index : Yes/No
Internet : Yes/No
Speaking Order/Non Speaking Order
gd
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CRP.No.163 of 2022
To
The Principal Subordinate Judge,
Salem.
2. The Sub Registrar
Veerapandi having office at
Sub Registrar Office,
Attayampatti Main Road,
Veerapandi, Salem Taluk,
Salem District.
3. The District Collector,
Salem having office at Salem
Collectorate, Salem 636 001.
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CRP.No.163 of 2022
P.T.ASHA, J,
gd
CRP.No.163 of 2022
08.02.2022
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