1. The appellants filed an Original Application under the Indian Trust Act before the Principal District Court, Salem in the matter of Appavoo Chettiar Trust. The petition was filed under Sec.74 of the Act r/w Sec.92 of Civil Procedure Code with a prayer to appoint the appellants as trustees and also for a declaration that a sale deed dated 23.7.2007 is null and void.

2. The respondents filed an application in IA No.156 of 2009 under order 7 Rule 11 of Civil Procedure Code to reject the main petition in O.P.No.239/2008, as the suit itself is not maintainable.

3. The appellant filed a counter and the issue before the learned Additional District Judge, Salem was, whether Appavoo Chettiar Trust is a private trust or public trust and whether the appellants have complied with the requirements under Sec.92 of Civil Procedure Code and whether the Original Petition is to be rejected under Order 7 Rule 11 of Civil Procedure Code.

4. After an elaborate enquiry, the learned Additional District Judge, Salem found that the Appavoo Chettiar trust is a private trust and appointment of trustees are very much settled in the Will of the testator and even assuming that it is a public trust, the appellants have not obtained leave to file an application under Sec.92 of Civil Procedure Code and allowed the application to reject the Original Petition.

5. Against the said order, the appellants have filed appeal in CMA No.979 of 2012 against the fair and decreetal order dated 23.12.2010 made in IA No.156 of 2009 and also filed appeal in CMA 1017 of 2012 on rejection of the original petition. Since the impugned order in CMA 1017 of 2012 is a consequential order passed in I.A No.156 of 2009, which is impugned in CMA No.979 of 2012, both the appeals are taken up together and they are disposed of by a common judgment.

6. The main contention by the appellants in both the appeals is that invoking of the provision under Order 7 Rule 11 of Civil Procedure Code is incorrect. The brief facts which are necessary to dispose of the above appeals are as follows:

7. One Appavoo Chettiar executed a Will dated 22.1.1947 which was registered in the year 1950 and thereby created a trust in respect of the properties mentioned in the Will. He has set out certain philanthropic activities from the income to be derived from the properties. He has appointed one Subramania Chettiar and Rajagopal Chettiar as Executors of the Will and also to carry out the Trust activities.

8. The above said Trustees carried out the wishes of the testator till their life time. After their demise, their sons, viz., Ramalingam, Palanisamy and Shanmugam took charge of the properties. However, a dispute arose between the family members of the said Ramalingam and Shanmugam and suits were filed in OS Nos.36 of 2004 and 10 of 2005.

9. Both the suits were dismissed with a direction to the parties to take appropriate proceedings to implement the Will executed by the Appavoo Chettiar. Alleging that the respondents are alienating the properties, the appellants, who claim to be the legal heirs of the original trustees, have filed an application to appoint them as trustees and for the consequential reliefs.

10. Such petition was filed on 17.9.2008. However, the second respondent filed an application under Order 7 Rule 11 of Civil Procedure Code to reject the petition on the ground that while the Appavoo Chettiar trust belongs to Agaram Vellan Chettiar community, the appellants do not belong to the said Community and they are in no way connected with the family of the beneficiaries and thereby there is no locus-standi for them to file an application for appointment of trustees.

11. The application was resisted by the appellants stating that the appellants are not beneficiaries and the petition itself is not maintainable and the provisions under the Civil Procedure Code cannot be invoked.

12. As the merit of the matter has to be looked into only in the application filed under the provisions of