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2012 Supreme(Mad) 3926

High Court of Judicature at Madras
P.JYOTHIMANI & M.DURAISWAMY
Maan Sarovar Paras Builders Pvt. Ltd.
Versus
Gopaldas Dwarakadas Family Trust Estate & Others
O.S.A.Nos.185 to 187 of 2012
Decided On : 24-09-2012

Advocates Appeared:
For the Petitioner: V.T.Gopalan, Sr.Counsel for M.L.Joseph for M/s.Chennai Law Associates.
For the Respondents:R1 to 4, R.Thiagarajan, R3, P.L.Narayanan, R5 to 8, R.Madangopal Advocates.

Headnote:INDIAN TRUSTS ACT, 1882 - Section 34 - Agreement of sale of trust properties signed by one of trustees (R4 in OSA) - Receipt of advance by R4 - Alleged illegality of sale of trust property - Challenged in OSA - Held, Jurisdiction of the Court is advisory and is in the form of an opinion and there is no determination of right, title and interest - 2007 (5) SCC 189 followed - On facts: In his individual capacity has received the amount either in cash or by way of cheque, it does not mean that the amount has gone to the trust, especially when the trust account itself has not been produced before this Court and the accounts relating to the applicant as well as the fourth respondent show that it has been given to the fourth respondent in his name. Therefore, there is no obligation on the part of the trust to refund the amount - OSA closed. (Paras 18 & 19)

       Result : OSA dismissed.

Judgment :-

P. JYOTHIMANI, J.

These appeals are directed against the common order passed in Application Nos.1263 to 1265 of 2011 in O.P.No.203 of 2010. While Application No.1263 of 2011 is to set aside the order dated 2.11.2010 passed in O.P.No.203 of 2010 and to cancel the confirmation of effected sale in favour of the third respondent, Application No.1264 of 2011 is for a direction against respondents 1 and 3 to execute registered deed cancelling the registered sale deed bearing document No.3385 of 2010, dated 20.12.2010 registered in the office of the Registrar, Srirangam, and Application No.1265 of 2011 is to direct the first respondent to register the sale deed in respect of the property in Survey No.1041 measuring 8.84 Acres in Melur Village, Srirangam Taluk, Tiruchirapalli District by receiving the balance consideration of Rs.360 Lakhs. All the said applications came to be dismissed by the learned Judge under the impugned order, against which the above appeals have been filed by the third party/applicant.

2.1. A thumbnail sketch of the facts of the case are as under: "Gopaldas Dwarakadas Family Trust" was formed by way of a scheme framed by this Court by order dated 17.2.1923 in C.S.No.721 of 1923 by merging the earlier existing two trusts, to wit "Malayalkaveri Bai Ammal's Trust" and "Gopaldas Dwarakadas Trust" and all the assets of both the trusts barring the properties in the city of Madras and Chengalpet District and including the properties mentioned in the schedule to Razinamah in C.S.No.21 of 1892 and in the schedule mentioned in C.S.No.721 of 1923 were directed to be treated as one estate referred to as "Gopaldas Dwarakadas Family Trust Estate" and the entire estate was administered and managed, as per the scheme, by Krishna Doss @ Vittaldass and/or G.K.Rangil Doss.

2.2. The trust, in the course of its administration, found that the income from and out of the properties of the trust was not sufficient to perform charitable and religious acts and also to meet out the statutory dues and, therefore, has filed O.P.No.685 of 2006 seeking permission to sell ten items of properties situated in various places and to invest the sale proceeds in fixed deposit. The said original petition was filed through its Managing Director _ G.D.Ramdas, representing the trust, who is also the petitioner in the present original petition. In O.P.No.685 of 2006, after calling for valuation report of the property, calling for objections for granting permission to sell the property and issuance of paper publication in English and Tamil newspapers of Trichy edition, the matter was not pursued and hence, the original petition was dismissed as withdrawn.

2.3. In 2010, the present O.P.No.203 of 2010 has been filed seeking permission to sell three items out of ten items covered in O.P.No.685 of 2006, since the income received from the said items of properties was very meagre and insufficient to meet out the overheads, huge statutory levies, and expenditure for charities and religious acts. The learned Judge has called for valuation report from the licensed valuer from the institution of valuers and directed the first respondent/Trust to file accounts duly certified by the auditor in respect of income and expenditure anent alienation made from 2005 onwards. The learned Judge, after receiving the said documents, directed publication in one of the English and Tamil newspapers circulated in the area where the property is situated inviting offers and such offers were received by the Registry.

2.4. After hearing the objections of the second respondent _ G.Madhan Mohan Das/trustee and another trustee _ Tharun, and on consideration of the four offers received pursuant to the publication, the learned Judge permitted to sell Item No.1, to wit lands in S.F.No.1041 measuring 3.58 Hectares situated in Melur Village, Srirangam Taluk, Trichy District, to the third respondent _ J.H.Najumudeen, who was declared to be the highest bidder for Rs.1,25,00,000/-, wh













































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