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IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
R. Pongiappan, J.
A. Pitchumani Chettiar – Appellant
Versus
Vasanthakumari and Others – Respondents
S.A. (MD) Nos. 217, 218 of 2009
Decided On : 05-07-2019
Indian Evidence Act - Section 115 - Allegation that this defendants – Partnership - Court appellant respondent filed a suit as against other respondents and seeking relief of declaration declaring that plaintiffs are managing trustees of properties and for consequential relief of mandatory injunction directing defendants receive for suit lands only from plaintiff for and for latter and issue receipts - In suit they further prayed for relief of direction directing the defendants except defendant to pay towards damages for mental suffering and agony caused to them by not collecting in respect of the suit lands - By Judgment and Decree District cum-Judicial Magistrate partly decreed suit declaring that plaintiff is managing trustee of the properties in respect to mandatory injunction plaintiff alone liable to pay suit properties –Held, Court Trustee had no Authority or jurisdiction to execute fresh trustee deed - However in same Judgment was as any deviation by the founder Trust or trustee from declared purposes would amount only to breach trust and would not detract from declaration of trust - So obvious that fresh Trust cannot be created by altering declared purposes - But this case factual aspect is entirely different recitals in respect to object of trust found was further improved through Trust Management Agreement is not having any difference in respect case in the light of the material terms used in document- In such cases it is always a matter of ascertaining the true intention of the parties it obvious that such intention must be gathered on a fair and reasonable construction of the document considered as a whole use of the word trust or trustee is no doubt of some help determining such intention but mere use of each words cannot be treated as decisive of the matter case in this aspect, it is necessary to see Judgment rendered by trial Court said Judgment it was clearly held that the resolution nominating as Joint Managing Trustee is unilateral resolution - It would also not in accordance with other resolution to remove the plaintiff from trust is also not valid law trustees cannot go beyond the two registered instruments - Ultimately trial Court decided that second plaintiff cannot seek any declaration as prayed for and further held that is alone competent to pay to the suit properties - In appellate Court– Appeal allowed
JUDGMENT :
R. Pongiappan, J.
1. Both the appeals are directed against the common Judgment and Decree passed in A.S. Nos. 103 and 104 of 2006, on the file of the learned I Additional Subordinate Judge, Tiruchirappalli. The appellant Pitchumani Chettiar is the 1st respondent in both the appeals.
S.A. (MD) No. 217 of 2009:
2. This appeal is directed against the Judgment and Decree, dated 14.04.2008 passed in A.S. No. 104 of 2006, on the file of the learned Subordinate Judge, Tiruchirappalli, which was filed against the Judgment and Decree passed in O.S. No. 470 of 1996, on the file of the learned District Munsif, Lalgudi, dated 20.03.2006.
3. Before the trial Court/the appellant Pitchaimani Chettiar and the 2nd respondent Natarajan Chettiar filed a suit as against the other respondents and seeking the relief of declaration, declaring that the plaintiffs are the managing trustees of the properties and for the consequential relief of mandatory injunction, directing the defendants 1 to 3 and 5 to receive Kists for the suit lands only from the plaintiff for the Fasli 1403 and for the latter Fasli and to issue receipts. In the suit they further prayed for the relief of direction, directing the defendants except the 1st defendant to pay Rs. 5000/- towards damages for the mental suffering and agony caused to them by not collecting the kists in respect of the suit lands.
4. By Judgment and Decree, dated 20.03.2006 the learned District Munsif-cum-Judicial Magistrate, Lalgudi, partly decreed the suit, declaring that the 1st plaintiff is the managing trustee of the properties, in respect to mandatory injunction, the 1st plaintiff alone liable to pay the kist to the suit properties. Aggrieved over the said findings, the 6th defendant in the suit Vasanthakumari preferred an appeal in A.S. No. 104 of 2006, on the file of the Subordinate Judge, Tiruchirappalli. The learned Subordinate Judge, Tiruchirappalli, by Judgment and Decree, dated 15.04.2008, after elaborate enquiry allowed the appeal and set aside the Judgment and Decree passed by the trial Court. Ultimately, she dismissed the suit; Feeling aggrieved over the same, the 1st plaintiff in the suit Pitchaimani Chettiar is before this Court with this Second Appeal.
S.A. (MD) No. 218 of 2009:
5. This appeal is directed against the Judgment and Decree, dated 15.04.2008, passed in A.S. No. 103 of 2006, on the file of the learned Subordinate Judge, Tiruchirappalli, which have been filed against the Judgment and Decree, dated 20.03.2006, passed in O.S. No. 1350 of 1995, on the file of the learned District Munsif, Lalgudi.
6. Earlier, this respondent Balamurali Krishna filed the above suit and seeking the relief of permanent injunction restraining the 1st defendant, his men and servants from in any manner interfering with his peaceful possession and enjoyment of suit 1st Item and in collecting the rents in respect to suit Item No. 2 from the 2nd defendant and for costs.
7. The learned District Munsif, Lalgudi in its Judgment and Decree, dated 20.03.2006 dismissed the suit. Aggrieved over the same, the plaintiff filed an appeal in A.S. No. 103 of 2006, on the file of the learned I Additional Subordinate Judge, Tiruchirappalli. The learned I Additional Subordinate Judge, after elaborate enquiry allowed the appeal and granted the decree of permanent injunction, as prayed for by the plaintiff. Feeling aggrieved over the same, the defendant in the suit is before this Court with the present Second Appeal.
8. For the sake of convenience, the parties are referred to as, as described before the trial Court.
9. The averments set out in the plaint in O.S. No. 470 of 1996 is as follows:-
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