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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. DURAISWAMY
R. Vaikunthanathan
Versus
Rajeevalochanachari (died) & Others
Second Appeal No.1005 of 1996 & C.R.P.(NPD) No.3901 of 2009 & C.M.P.Nos. 3314 of 2007 & 984 & 1092 of 2010 & M.P.No.1 of 2009
Decided On : 20-10-2010
(B)Indian Trust Act, 1882(2 of 1882)-Sec.34-Trust-Public trust-Maladministration-Scheme-Property-Interest-Private interest-A person who claims interest in the property of the trust or seek for his appointment as a trustee of the trust is incompetent to seek framing of a scheme for the administration of the trust.
Since the first plaintiff in the suit prayed to appoint himself as a trustee, it shows that he has got personal interest over the trust and he has no public interest as envisaged in section 92 of C.P.C. The lower appellate court has rightly found that the first plaintiff has got personal interest over the trust properties. However, to substantiate the contention of the plaintiffs that the first plaintiff was a trustee, he has not produced any evidence for the same. The lower appellate court has rightly rejected the said contention. The lower appellate court also rightly came to the conclusion that the first plaintiff got personal interest for filing the suit. The plaintiffs failed to prove that they have initiated the suit only for the interest of the trust. Para 30
(C)Code of Civil Procedure, 1908(5 of 1908)-Sec.151, O.1 R.10-Necessary party-Impleading-Provision-A party can be added in any judicial proceeding only as per the provisions of O.1 R.10 CPC and the provisions of Sec.151 CPC could not be invoked for that purpose.
Therefore, in spite of the fact that the second appeal is pending from the year 1996, having kept quiet for all these years and filed the impleading petition only in the year 2007 and that too, under section 151 C.P.C., when Order I Rule 10 C.P.C. is available, it clearly shows that the appellant has filed the application only to fill up the vacuum that too after 28 years from the date of filing of the suit. Hence, the said application deserves no merit and it is liable to be dismissed. Para 34
(D)Code of Civil Procedure, 1908(5 of 1908)-Sec.92, O.1 R.10-Trust-Public trust-Maladministration-Scheme- Necessary party-Impleading- In any suit filed for framing a scheme for the administration of the trust, the trust is a necessary party.
A suit filed under section 92 CPC for framing a scheme for proper administration of the trust, the trust being absolutely necessary party and not been impleaded as party in the proceeding, the suit deserves to be dismissed. The lower appellate court has rightly dismissed the suit. Para 35
(E)Indian Trust Act, 1882(2 of 1882)-Sec.34-Code of Civil Procedure, 1908(5 of 1908)-Sec.92-Trust-Public trust-Private trust-Property-Sale-Court-Competency-Permission-Indian Trust Act 1882 do not apply to public, religious or charitable trusts-Indian Trust Act, 1882 does not grant jurisdiction to the District Court to grant permission for the sale of a property of a public trust.
However, it is pertinent to note that Indian Trust Act 1882 do not apply to public, religious or charitable trusts. It is not in dispute that the respondent trust is a public trust. That being the case, the learned District Judge committed an error in allowing the trust O.P. filed under section 34 of Indian Trust Act. When the Act itself does not apply to the respondent trust, the District court ought not have allowed the petition filed under section 34 of the Act. Since the trust O.P. itself is not maintainable, the fair and final order made in Trust O.P.No.100 of 2008 on the file of Principal District Judge, Chenglepet is liable to be set aside. Para 37
1. 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 isappellant 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 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 brothers son i.e., first plaintiffs 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 sc
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