Madras High Court
Nagarajan vs Gnanagursami (Died) on 14 June, 2023
A.S.(MD)No.298 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.298 of 2008
and M.P.(MD)No.2 of 2008
and C.M.A.(MD)No.1188 of 2007
and C.R.P.(MD)No.1833 of 2008
A.S.(MD)No.298 of 2008
1.Nagarajan
2.Saravana Kumar
3.M.Vellaiyammal
4.M.Leelavathy
5.R.Ramalakshmi
6.A.Muthulakshmi
7.M.Shanthi
8.V.Latha
9.M.Karthika ... Appellants in
A.S., C.M.A and C.R.P.
Vs.
1.Gnanagursami (Died)
2.Subburaj
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A.S.(MD)No.298 of 2008
3.Palanivel
4.Chandra
5.Kamaraj
6.Subbulakshmi
7.Kanagavel
8.Palaniammal
9.Kumarajothi
10.Nagalakshmi
11.Meena Rani
12.Kaja Mohideen
13.Syed Abuthahir
14.Mohammad Mustafa
15.Ismail Mydeen
16.Jaffar Ali
17.Mohammad Kasim
18.Seethapathy
19.R.Palanivel
20.R.Muthu Krishnan
21.C.Nagendran
22.K.Muthusami
23.R.Mayakrishnan
24.V.Gomathy
25.J.Mohammad Mydeen
26.H.R.Harianandan
27.R.Chandra
28.Yesumani
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A.S.(MD)No.298 of 2008
29.N.T.Parthasarathy
30.Muniyammal
31.Soundarapandi
32.Duraipandi
33.Selvaraj
34.Pandiammal
35.Linga Muthu
36.Murugeswari
37.Ramesh Kumar
38.Manimekalai
39.Selva Kumar
40.G.Vendamani
41.S.Gowri
42.G.Alagarsamy
43.G.Hari
(Respondents 40 to 43 are brought on record as LRs of
the deceased 1st respondent vide Court order dated 20.07.2022
made in M.P.(MD)Nos.1, 1 and 1 of 2011 in A.S.(MD)No.298/2008,
C.M.A.(MD)No.1188/2007 and C.R.P.(MD)No.1833/2008)
(Respondents 18 to 34 are given up in this Appeal as
they have remained exparte before the lower Court)
... Respondents in
in all A.S., C.M.A and C.R.P.
PRAYER IN A.S.(MD)NO.298 OF 2008: This Appeal Suit is filed under Section
96 of C.P.C. against the decree and judgment dated 22.12.2006 passed in O.S.No.
83 of 2004 by the learned Additional District Judge, Fast Track Court No.1,
Madurai.
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A.S.(MD)No.298 of 2008
PRAYER IN C.M.A.(MD)No.1188 OF 2007: This Civil Miscellaneous Appeal is
filed under Section 104 of C.P.C. against the order dated 22.12.2006 passed in the
application in I.A.No.663/2005 in O.S.No.83/2004 by the learned Additional
District Judge, Fast Track Court No.1, Madurai.
PRAYER IN C.R.P.(MD)No.1833/2008: This Civil Revision Petition is filed
under Section 115 of C.P.C. against the order dated 22.12.2006 passed in the
application in I.A.No.667/2006 in O.S.No.83/2004 by the learned Additional
District Judge, Fast Track Court No.1, Madurai.
A.S.(MD)No.298/2008
For Appellants : Mr.J.Barathan
For Respondents : Mr.P.Paranthaman for R6, R8 to R11
Mr.M.R.Murugeshan for R12 to R17
No Appearance for R2 to R5, R7, and
R35 to R43.
R18 to R34 given up (vide EB)
R1 died – steps taken
C.M.A.(MD)No.1188/2007
For Appellants : Mr.J.Barathan
For Respondents : Mr.P.Paranthaman for R2
R8 to R34 – given up
R1 died – steps taken
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A.S.(MD)No.298 of 2008
C.R.P.(MD)No.1833/2008
For Petitioners : Mr.J.Barathan
For Respondents : Mr.P.Paranthaman for R3, R8 to R10
Mr.M.R.Murugeshan for R12, 13, 15
to R17
No Appearance for R2, R4, R5, R7, R14,
R35, R36 and R40 to R43.
R18 to R34 given up (vide EB)
R1 died – steps taken
COMMON JUDGMENT
Appeal suit has been filed as against the judgment of the trial Court
rejecting the plaint in O.S.No.83 of 2004. Rejection of the plaint has been made
pursuant to the rejection of the application filed under Section 92 of the CPC,
seeking permission to institute the suit which is under challenge in Civil
Miscellaneous Appeal. Civil Revision Petition has been filed challenging the
dismissal of the application filed under Order 1 Rule 8 of CPC, seeking
permission to file a suit as representative capacity.
2. For the sake of convenience, the parties are referred to herein, as per their
own ranking before the Trial Court in O.S.No.83 of 2004.
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A.S.(MD)No.298 of 2008
3. The brief facts of the cases are as follows:-
The suit has been laid by the plaintiffs inter alia contending that the suit
properties are Trust properties. The trust was created by one Kamatchi Pandithan.
The plaintiffs 2 and 3 are the sons of the first plaintiff. Some of defendants are the
legal heirs through the second wife of the said Kamatchi Pandithan, who is the
original owner of the suit properties. It is the case of the plaintiffs that the suit
properties are the public charitable Trust. Hence, the suit has been laid on the
ground that there is a breach of trust and certain properties have been sold to the
defendant Nos.14 to 19 / respondents 12 to 17 and further, the defendants also
neglected to construct any shelter for sadhus and the very object of the trust has
not been achieved and neglected. Hence, making various allegations of breach of
trust, the suit has been laid for following relief:
a) removing the defendants 2 to 4, 6 to 13, 32 to 41 from the
trusteeship of the suit trust founded by Kamatchi Pandithan under his Will
dated 29.04.1925;
b) appointing plaintiffs 2 and 3 as trustees of the said trust to
manage the suit trust properties and to perform the dharmams of the trust;
c) framing a proper scheme of administration for management of the
suit trust and the suit properties and for performing the dharmams
mentioned in the founder's Will dated 29.04.1925; and applying the
doctrine of CYPRES, if necessary;
d) directing the defendants 2 to 4, 6 to 13, 32 to 41, to deliver
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A.S.(MD)No.298 of 2008
possession of item 1 of the suit trust properties to the plaintiff or the new
trustees to be appointed under the scheme of management to be framed by
Court;
e) declaring that the sale of suit item 2 under sale deeds dated
21.11.1991 executed by defendants 1 nd 2 in favour of defendants 14 to 19
as null and void and not binding on the suit trust and consequently,
directing the defendants 14 to 19 to deliver possession of suit item 2 to the
plaintiffs or the new trustees to be appointed under the scheme of
management to be framed by Court;
f) directing the defendants 2 to 4, 6 to 13, 32 to 41 to render a true
and proper account for all the sums realised from the suit trust properties
after the death of Muthupillai Ammal and Chellammal, till delivery of
possession of the suit trust properties to the new trustees appointed by the
Court or under the scheme of administration; and
g) directing the contesting defendants to pay the plaintiffs the costs
of the suit.”
It appears that before deciding the application filed under Section 92 of C.P.C., the
suit got numbered. Thereafter, the application filed under Section 92 of C.P.C. has
been taken on file and decided later and based on that the suit has been rejected.
4. The main contention of the contesting defendants is that the Trust has
become defunct by way of cancellation deed dated 03.08.1995. Further, it is the
case of the defendants that one of the plaintiffs has already filed a suit in O.S.No.
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A.S.(MD)No.298 of 2008
126 of 1959, wherein no right whatsoever has been sought by him and hence, the
same was dismissed. The plaintiffs being the relative of the founder of the Trust
has filed a suit only to vindicate their personal rights and there is no public interest
involved. Therefore, opposed the suit.
5. The trial Court after hearing both sides have rejected the application filed
under Section 92 of C.P.C. upholding that earlier suit has been filed, wherein one
of the plaintiffs rights have been decided and therefore, leave cannot be granted.
6. The learned counsel appearing for the plaintiffs / appellants would submit
that in an earlier litigation in O.S.No.126 of 1959, a categorical finding has been
recorded that except Vinayagar Temple, all other properties are public Trust and
charities have to be performed and the said finding has been reached finality. It is
further contention that the suit has been filed in the year 07.02.1995. After filing
of the suit, certain cancellation deed and sale deed have been executed. On this
basis, the defendants / respondents projected the case as if there is no trust in
existence. Hence, it is the contention of the learned counsel appearing for the
plaintiffs / appellants that merely because a relief has been sought for appointing
the plaintiffs as trustees, it cannot be construed to mean that they are vindicating
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A.S.(MD)No.298 of 2008
their personal rights. The primarily relief in the suit is for framing the scheme and
also appoint the trustees by the Court to look after the trust property. Such being a
position, when there is a public charity available, which has also been proved, the
defendants / respondents cannot make the Trust defunct, by executing certain
documents on their own. Therefore, the order of the trial Court has to be set aside
and the matter requires detailed trial.
7. The learned counsel appearing for the defendants / respondents would
submit that the fourth plaintiff in the original suit in O.S.No.126 of 1959, being
the relative of the founder of the Trust, only prosecuting the suit for their personal
rights and there is no public interest involved in this matter. The very relief
claimed by them indicates that they sought a prayer for appointing them as
trustees. Further, to obtain a leave under Section 92 of C.P.C., the Trust must be in
existence. Whereas in this case, Trust has been dissolved by the document dated
03.08.1995. The properties also sold to the various third parties. Therefore, the
application filed under Section 92 of C.P.C. is not maintainable.
8. In the light of the above submissions, now the points arise for
consideration in all these matter are as follows:
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A.S.(MD)No.298 of 2008
1) Whether the trial Court is right in rejecting the application mainly on the
ground that the suit properties have been sold to the third parties?
2) Whether the plaintiffs are vindicating their personal rights?
3) To what relief, the parties are entitled?
9. On a perusal of the entire plaint, it is found that the plaint is proceeded
with various allegations regarding breech of trust. One such allegation is with
regard to the sale of the property in favour of the third parties, who are the
defendants 14 to 19 / respondents 12 to 17. The sale in their favour is not disputed
before this Court. It is relevant to note that suit has been presented on 07.02.1995.
After the suit being filed, the sale has been taken place. Certain documents also
are said to have been executed as if the trust has become defunct. Trust is a
juristic person and there cannot be any dissolution by act of parties. It is relevant
to note that in earlier litigation in O.S.No.126 of 1959, the Court has held that
except a small Vinayagar Temple all other properties are public charities. That
judgment has also reached finality.
10. Such being a position, when the trust properties are very much available,
merely because the parties have sold the property, it cannot be said that trust has
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A.S.(MD)No.298 of 2008
been dissolved. The very sale of property during the pendency of the suit itself
indicates that there is a breach of Trust and no permission whatsoever has been
obtained form the Court for such sale. Such being the position, a detailed trial is
required in this matter. It is also stated by both sides that a suit has been filed
cancelling the document to dissolve the trust, which has been admittedly executed
during the pendency of the suit. Therefore, this Court is of the view that mere
pendency of the separate suit for seeking the relief to set aside the cancellation
deed will not be a bar to entertain the present suit.
11. Further, merely a relief is sought to appoint the plaintiffs as trustees,
considering the facts and circumstances, this Court is not able to construe the same
as personal rights. The larger relief sought in the plaint clearly indicates that the
suit has been filed for framing of scheme and also appointing Trustees by the
Court itself. When the breech of Trust is apparent on the face of the documents, it
cannot be said that there is no public interest involved. Admittedly, the forefather
of the plaintiffs and the defendants created the Trust only for the benefit of the
public. When those properties have been dealt without permission of the Court, it
has to be tested in the trial. Such being a position, on the basis of one of the relief,
in respect of appointing the plaintiffs as trustees, it cannot be concluded that
plaintiffs are vindicating their personal rights rather than the public interest.
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A.S.(MD)No.298 of 2008
12. Such view of the matter, the order of the trial Court dismissing the
application filed under Section 92 of C.P.C. is not sustainable and the same is set
aside and the suit has to restore to file. Similarly, the application filed under Order
1 Rule 8 of C.P.C. is also allowed and the order of the trial Court dismissing that
application is also set aside. The trial Court shall proceed the suit. The trial Court
before deciding the application under Section 92 of C.P.C., has numbered the suit.
Therefore, merely because of such a mistake committed by the trial Court, this
Court is of the view that technicalities cannot be given much importance and the
object and intention of the founder of the Trust has to be seen in the trial Court.
The Court being parens patriae of the trust properties has to decide the suit on its
own merits.
13. In view of the above, the Appeal Suit, Civil Miscellaneous Appeal and
Civil Revision Petition are allowed. It is stated that at the relevant point of time,
when the applications have been filed, only the Principal Subordinate Judge was
the Court of Original jurisdiction now the Principal District Judge is a Court of
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A.S.(MD)No.298 of 2008
original jurisdiction. Therefore, the Suit shall be transferred to the Principal
District Judge, Madurai. The learned Principal District Judge is directed to
proceed with the trial in O.S.No.83 of 2004, after providing opportunities to all the
parties and expedite the trial and conclude the same and thereafter, decide the suit
on its own merits, within a period of six (6) months from the date of receipt of a
copy of this judgment. No costs. Consequently, connected miscellaneous petition
is closed.
14.06.2023
NCC : Yes /No
Index : Yes/No
vsm
To
1.The Additional District Judge,
Fast Track Court No.1, Madurai.
2.The Principal District Judge, Madurai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.298 of 2008
N.SATHISH KUMAR, J.
vsm
Judgment in
A.S.(MD)No.298 of 2008
and M.P.(MD)No.2 of 2008
and C.M.A.(MD)No.1188 of 2007
and C.R.P.(MD)No.1833 of 2008
14.06.2023
https://www.mhc.tn.gov.in/judis
