(Appeal against the Judgment and Decree passed by this Court dated 09.02.2011 in C.S.No.438 of 2000 and O.A.No.751 of 2006 and Application Nos.4058 & 5038 of 2005, 2458, 2459, 3956, 4010 & 4011 of 2006 and 2511 of 2007.)

P. Devadass, J.

The plaintiffs in C.S.No.438 of 2000 have directed this Original Side Appeal as against the judgment and decree of the learned Single Judge passed in the said suit, whereunder a scheme has been framed to administer the affairs of the first defendant, namely, 'Rao Bahadur Allathore Nathamoony Chetty Charitable Trust', shortly, 'R.B.A.N.C. Trust.'

2. Rao Bahadur Allathore Nathamoony Chetty, an Ariya Vysia was a businessman, philanthropist, in and by his last Will dated 23.07.1949, among various bequeathes, created the said Trust, which envisages running of Ramanuja Koodams, situate at a place in Triplicane and also in Nanguneri in Tirunelveli District. Further, the testator had also provided for running of an Elementary School and closure of it after his demise. However, to cater to the educational needs of many, the said school is being continued, now as an higher secondary school.

3. In his Will, the testator had named, 4 executors and also directed them to act as Trustees. There is a codicil dated 12.03.1950. But, there was no major departure from the provisions of the Will dated 23.7.1949.

4. The testator died issueless on 31.7.1953. On 17.2.1954, in O.P.No.17 of 1954, the above said Will of testator was probated by this Court. After the death of the testator, many years have passed, there were many improvement in the trust and its educational institutions. In course of time, there were changes in the trustees.

5. The first plaintiff, an ex-student of the Trust school and second plaintiff, the Treasurer of the school welfare committee have filed the suit in C.S.No.438 of 2000 alleging many acts of misdeeds as against the 3rd defendant/3rd respondent, who is the secretary of the Trust, prayed for framing a scheme for the management of the Trust.

6. Though, in the plaint, certain allegations have been made as against the 3rd defendant, the plaintiffs have not pursued them. They mainly concerned with who should be appointed as trustees. The plaintiffs have contended that the trusteeship need not be restricted to a particular community, namely, Ariya Vysia. However, the contesting defendant would oppose it relying on the provisions concerning filling up of vacancy of trusteeship mentioned in the Will.

7. On 9.2.2011, the learned Single Judge framed the scheme to conduct the affairs of the Trust and ruled that persons belonging to Ariya Vysia community of Chennai alone could be appointed as trustees.

8. Aggrieved, the plaintiffs have directed this appeal.

9. According to the learned Senior Counsel appearing for the appellants, a reading of the provision in the Will relating to the filling up of the vacancy of the trustees would clearly show that of course the first preference shall be given to A.V.Namberumal Chetty and if he declines, the vacancy must be filled up by any other person. He may be a non-Ariya Vysia. This is also evident from the fact that the first four trustees nominated by the testator himself included non-Ariyavysias also. If the testator's intention was only to appoint Ariya Vysias as trustees, in his will he would not have nominated certain non-Ariya Vysias as executors and trustees. The learned Senior counsel further contended that inasmuch as the Trust is a public Trust and it has an Educational Agency, the trusteeship should not be restricted to members of any particular community. In this respect, the learned Senior Counsel cited S.SUBRAMANIAM VS. DR.S.RAMADOSS AND 12 OTHERS [2002(2) L.W.733].

10. On the other hand, the learned counsel for the contesting respondents would submit that in the matter of executing the Will, translating the intention of the testator must be the guiding factor. A reading of the words employed in the Will dated 23.7.1949 would clearly show that any v