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2014 Supreme(Mad) 1562
HIGH COURT OF JUDICATURE AT MADRAS
M. JAICHANDREN & M. VENUGOPAL, JJ.
Oxford University Press Rep. By its Regional Director
Versus
St. George's Cathedral Trust Rep. By its Secretary
O.S.A. Nos. 156 & 157 of 2014 & M.P. Nos. 1 & 1 of 2014
Decided on: 24-06-2014
For the Appellant:M. Sundar For M/s. Udwadia Udeshi & Argus, Advocates.
For the Respondent:S.D.S. Phillip, Advocate.
The duty of the court to adjudicate on all issues and the discretion of the court to decide issues as preliminary or not.
Headnote:
Trust - Indian Trust Act - Section 47, 48 - The court discussed the applicability of the Indian Trust Act to a Public Trust, the authority of a person to file a civil suit on behalf of a Trust, and the competency of a witness to depose on behalf of the Trust. The court emphasized the importance of trying all issues comprehensively and the discretion of the court to decide issues as preliminary or not.
Fact of the Case:
The Respondent/Plaintiff sought judgment and decree for possession of a property and damages. The Appellant/Defendant denied the claims and asserted its right to protect possession under the Transfer of Property Act.
Finding of the Court:
The court emphasized the duty to adjudicate on all issues and the importance of allowing parties to lead evidence. It held that the issue of authorization to file the suit need not be tried as a preliminary issue and should be decided along with other issues. The court also rejected the plea to eschew the evidence of a witness, emphasizing the need for comprehensive decision on all issues.
Issues: The issues included the authority to file the suit, competency of a witness to depose on behalf of the Trust, and the right to possession and damages.
Ratio Decidendi: The court emphasized the duty to adjudicate on all issues, the discretion of the court to decide issues as preliminary or not, and the importance of allowing parties to lead evidence.
Final Decision: The Original Side Appeals were dismissed, and no costs were awarded. Connected Miscellaneous Petitions were closed.
M. Venugopal, J.
1. The Appellant/Applicant/Defendant has focussed the instant O.S.A.Nos.156 & 157 of 2014 as against the Common Order dated 03.12.2013, in A.Nos.4581 & 4582 of 2013, in C.S.No.360 of 2012, passed by the Learned Single Judge.
2. The Learned Single Judge, while passing the Common Order, in A.Nos.4581 & 4582 of 2013 in C.S.No.360 of 2012, on 03.12.2013, has, in paragraph No.20, observed that 'Whether the provisions of the Indian Trust Act would be applicable to the Public Trust or not, is not necessary to decide the issue involved in these applications' etc. and consequently, dismissed the Applications as devoid of merits.
3. According to the Learned Counsel for the Appellant (in both the Appeals), the Learned Single Judge had erred completely in overlooking the point that when the pleadings were completed and issues framed on 27.06.2013, it was not known as to how many Trustees were in all in the Respondent/Plaintiff Trust as on the date of filing of the suit viz., on 08.08.2012. Resultantly, the Learned Single Judge completely missed the point that on filing of the proof affidavit on 16.08.2013, it became the admitted case of the Respondent/ Plaintiff that there were/are four trustees in all in the Trust as on date of filing of the suit.
4. The Learned Counsel for the Appellant contends that as regards the deposition of P.W.1 and marking of resolutions of Plaintiff Trust dated 07.03.2012 and 01.06.2012 as Exs.P.2 and P.1 respectively, it became an admitted fact of the Respondent/Plaintiff Trust that both the resolutions were not signed by all the four trustees as Ex.P.2 (resolution dated 07.03.2012) was signed only by two trustees while Ex.P.1 (resolution dated 01.06.2012) was signed by three out of four trustees.
5. The Learned Counsel for the Appellant submits that Prof. D.S.Luther was not authorised by all the three remaining trustees to file the Civil Suit and in terms of ingredients of Section 47 and 48 of the Indian Trusts Act, 1882, the Issue No.1 as to whether the suit is properly instituted, by a person duly authorised by the trustees of the Respondent/Plaintiff Trust, in accordance with the constituent documents viz., Trust Deed of the Trust etc. is a pure question of law and this vital aspect of the matter was not taken into account by the Learned Single Judge, while dismissing the A.No.4582 of 2013.
6. The Learned Counsel for the Appellant/Defendant projects an argument that the Learned Single Judge had ignored the equities in the subject matter in issue and also fair play on the part of the Appellant in taking out a simultaneous Application for eschewing the evidence of P.W.1 so that the Respondent/Plaintiff Trust can take out an amendment Application and proceed further.
7. Lastly, it is the contention of the Learned Counsel for the Appellant/Defendant that the Learned Single Judge had completely brushed aside all the ingredients/parameters for trying applications for preliminary issue in the instant case.
8. Per contra, it is submission of the Learned Counsel for the Respondent/Plaintiff that in the main Civil Suit, 1 to 11 issues were framed and before the Learned Master of this Court, P.W.1's Chief Examination was tendered, by means of a Proof Affidavit, dated 16.08.2013 and at that point of time, two applications were filed on behalf of the Appellant/Applicant/Defendant, one for eschewing the evidence in chief (by way of Proof Affidavit dated 16.08.2013) of P.W.1 (Secretary of the Plaintiff Trust) and another for trying the preliminary issue viz., whether the suit property is properly instituted by a person duly authorised by the Trustee of the Plaintiff Trust etc.
9. The Learned Counsel for the Respondent/Plaintiff submits that Section 48 of the Indian Trusts Act, 1882 applies to a Private Trust and in any event, when once the evidence of P.W.1 had commenced in the main Civil Suit, it is desirable for a Court of Law to try all the issues framed by it (including the preliminary issue
