IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.04.2010
CORAM :
THE HONOURABLE Mrs.JUSTICE R.BANUMATHI
and
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Appeal Suit Nos.235 and 236 of 1994
A.S.No.235 of 1994:
1.P.R.Pandurangan Chettiar
2.P.Ramakrishnan .... Appellants
Vs.
1.M.Balakrishnan
2.V.Subramanian Chettiar
3.R.Thathathiri
4.K.B.Kandasamy
5.Loganathan
6.V.Balakrishnan
7.Rasipuram Educational
Trust present President
8.Angamma Chettiar
9.B.K.Ramalingam Chettiar
10.R.Srinivasan
11.K.Jagatheeswaran
12.G.Sugaveena Srinivasan
13.R.V.Venkatachalam Chettiar
14.M.Krishnamurthy
15.Rasipuram Arya Vysia Billa
Muzhunghi Trust ....Respondents
A.S.No.236 of 1994:
Rasipuram Arya Vysya Pilla Muzhurgi Trust
represented by its Secretary
P.R.Panduranga Chettiar
No.39, Katcheri Street
Rasipruam 637 408. ... Appellant
vs.
1.P.K.Kandasamy Chettiar
2.P.K.Ramalingam (died)
3.R.Loganathan
4.R.Srinivasan
5.V.Balakrishnan ... Respondents
Prayer: Appeals in A.S.Nos.235 and 236 of 1994 are filed under Section 96 of the Civil Procedure Code against the orders dated 30.6.1993 made in O.S.Nos.310 of 1986 and 93 of 1986 respectively on the file of the Subordinate Judge, Namakkal.
For Appellants : Mr.Elizabeth Ravi for
in both Appeals Mr.S.Subbiah
For Respondents : Mr.T.T.Ravichandran
1 to 6 in A.S.No.
235 of 1994 and
for Respondents
No.1 and 3 to 5 in
A.S.No.236 of 2004
COMMON JUDGMENT
R.BANUMATHI,J.
A.S.No.235 of 1994 is directed against the judgment in O.S.No.310 of 1996 decreeing the suit filed by the plaintiffs for framing scheme for Pilla Muzhangi Trust and to remove respondents 1 and 2 from trusteeship and direct them to render accounts for trust funds and also to hand over Trust records and to deliver possession of the trust properties. A.S.No.236 of 1994 arises out of dismissal of suit in O.S.No.93 of 1986. Since both the appeals arise out of common judgment, and points for consideration are one and the same, both the appeals were taken up together and disposed of by this Common Judgment. For convenience, the parties are referred to as per their array in O.S.No.310 of 1986.
2. The family of Pilla Muzhangi Trust chettis formed a Trust and dedicated certain properties for purpose of certain poojas and the benefit of Pilla Muzhangi community people. On 21.6.1970, Mahasabha/ General Body Meeting was convened and a Trust was created and Ex.A.1 trust deed was registered on the same day i.e., 21.6.1970. Trust deed imposes certain obligations on the trustees to perform certain poojas Dattatreya Homam, Vana Bojanam, Vinayagar Pooja and Utsavams. From out of 2.44 acres in Survey No.286 belonging to the Trust, an extent of 2.10 acres was acquired for Telephone Department for which an amount of Rs.3,31,634.55ps was awarded as compensation.
3. Defendants 1 and 2 have been in management of the Trust. The first Defendant was the Secretary of the Trust. 2nd Defendant was the Executive Committee member and Defendants No.3 and 4 were the members. The case of Plaintiffs is that Defendants No.1 and 2 have not acted as per the obligations cast upon them in the trust deed. Defendants No.1 and 2 have not performed the poojas nor convened the General Body meeting. The defendants have not acted for the benefit of Pilla Muzhangi community people. Compensation amount of Rs.3,31,634.55 paid for acquiring the lands for Telephone Department was received by the 1st Defendant. The Trust is having the account in Salem Central Cooperative Bank in Rasipuram. Instead of depositing the amount in the said Bank, the 1st Defendant has deposited the amount in Lakshmi Vilas Bank and the 1st Defendant is operating the account. The 1st Defendant has not shown the account to the other community people.
4. Further case of Plaintiff is that after acquiring the land for Telephone Department, from out of the remaining 34 cents, 29 cents was let off to the 6th Defendant for running a School. For giving the property on such long term lease, no permission of the Court was obtained nor it was brought to the notice of the General Body Meeting. In respect of 9 cents in S.No.274/29, Defendants 1 to 4 have executed a Bhokiam usufructuary mortgage in favour the 7th Defendant. For creating such Bhokiam in favour of 7th Defendant, no permission of the Court was obtained. Defendants 1 and 2 are acting against the objects of the Trust and they have not convened Mahasabha meeting alleging mismanagement and maladministration. Plaintiffs have filed O.S.No.310 of 1986 for removal of Defendants 1 and 2 from trusteeship and also from forming a scheme regarding the management of Pilla Muzhangi Trust also to direct Defendants No.1 and 2 to render accounts and deposit the amount and records in the Court.
5. Defendants resisted the suit contending that even after creation of Trust and registration of Trust deed in 1970, the Trust was not functioning properly and elections were not conducted till the year 1975. According to the contesting defendants 1 and 2, elections were conducted in the year 1979 and 1984 and the 1st Defendant was elected as the Secretary and reforms were brought in the administration of the Trust only after the Defendants No.1 and 2 took over the charge. There was no mismanagement or maladministration as alleged by the Plaintiffs and the suit is highly motivated. According to Defendants 1 and 2, compensation amount is properly invested in the name of Trust in Lakshmi Vilas Bank and Defendants No.1 and 2 have denied any misappropriation.
6. O.S.No.93 of 1986 was filed by the 1st Defendant Panduranga Chettiar for permanent injunction restraining the defendants Kandasamy Chettiar and others Plaintiffs in O.S.No.310 of 1986 from in any way interfering with the management of the Trust through the Secretary. According to 1st Defendant - Panduranga Chettiar, the trustees administered by Board of Trustees consisting of himself as Secretary, President, Treasurer and two directors and elected trustees have executed a power of attorney authorising Panduranga Chettiar to administer the affairs of the Trust. According to Panduranga Chettiar, Kandaswami Chettiar, P.K.Ramalingam and Loganathan were elected as trustees in the general body meeting held on 5.8.1984 and they lost the posts as they engaged themselves in activities adverse to the interests of the Trust. Alleging that P.K.Ramalingam and others have lodged a police complaint and are attempting to interfere with the management of the Trust, Panduranga Chettiar filed the suit O.S.No.93 of 1986.
7. Plaintiffs in O.S.No.310 of 1986, who are the Defendants in O.S.No.93 of 1986, resisted the suit contending that Panduranga Chettiar has no right or authority to file the suit. According to Ramalingam, in the general body meeting held on 2.3.1986, it was resolved to elect new office bearers and in the meeting held on 23.3.1986 new office bearers were elected as Board of trustees and out of whom P.K.Ramalingam was elected as President and one G.Sugavana Srinviasan as Secretary and 5 others as new Board of trustees and they are entitled to manage the affairs of the Trust. According to them, on assuming charges of Trust by the new office bearers, Panduranga Chettiar - Ex.Secretary refused to hand over the accounts, cash and other affairs of the Trust falsely claiming himself to be the Secretary and attempting to create false records and resolutions. Ramalingam and others alleged that Panduranga Chettiar is converting the trust properties as his separate property and not entitled to the relief of permanent injunction.
8. P.K.Ramalingam has filed O.S.No.39 of 1988 for declaration and permanent injunction contending that they are the elected office bearers. Panduranga Chettiar has filed O.S.No.40 of 1988 for permanent injunction against some of the respondents from interfering with the management and administration of the Trust.
9. In all the suits, common evidence was adduced. On behalf of Plaintiffs, one M.Balakrishnan was examined as P.W.1, Saminathan was examined as P.W.2 and one S.Nagamanickam was examined as PW.3 and Exs.A.1 to A.5 were marked. On behalf of the Defendants, one Ramakrishnan was examined as D.W.1, Anganna Chettiar (Defendant No.7) was examined as D.W.2, Defendant No.2 (Ramakrishnan) was examined as D.W.3 and Defendant No.8 Ramalingam was examined as D.W.4 and Exs.B.1 to B.79 were marked.
10. Upon consideration of oral and documentary evidence, trail Court held that the objects of the Trust were not carried out and festival/poojas were not conducted by the Defendants 1 and 2. The trial Court also held that accounts were not properly maintained by the defendants 1 and 2 and general body meeting was also not held as per the direction contained in the deed of Trust. Referring to the alleged resolution of the Trustees dated 8.12.1985 to the effect that the amount of Rs.3,31,634.55ps. should be secretly protected by the then trustee Panduranga Chettiar, trial Court doubted the very holding of the said meeting on 8.12.1985. The plea of Defendants 1 and 2 that the amount advanced to several persons on loan was rejected by the trial Court on the ground that there was no such evidence and the trial Court held that the Defendants 1 and 2 utilised the funds for their own benefits by depositing the amount in their own name in fixed deposits. Trial Court further held that without obtaining permission of the Court, Defendants 1 and 2 have also encumbered the properties of the Trust by creating usufructuary mortgage in favour of 7th Defendant and leasing out the property to 6th Defendant for running the School. On those findings, the trial Court decreed the suit in O.S.No.310 of 1986 directing removal of Defendants No.1 and 2 from trusteeship and directed them to deliver account books and other records. O.S.Nos.93 of 1986 and 40 of 1988 filed by the Defendants were dismissed. O.S.No.39 of 1988 filed by the Plaintiffs for declaration that they are the elected office bearers and permanent injunction was decreed.
11. Challenging the findings of the trial Court, the learned counsel for the Appellants contended that as per Section 92 of Civil Procedure Code, prior permission has to be obtained for filing of the suit and without obtaining the leave, the suit itself is not maintainable. Learned counsel would further contend that absolutely there was no mismanagement and maladministration of suit properties and the compensation amount of Rs.3,31,634.55ps is very much available in Lakshmi Vilas Bank. In respect of the immovable properties, the learned counsel submitted that item No.2 in S.No.74/29 usufructuary mortgage was created in favour of 7th Defendant and the amount so received is utilised for the benefit of community people and for performing the objects of the Trust. Regarding leasing of property to the 6th Defendant, the learned counsel submitted that School is run for the benefit of Pilla Muzhangi Trust community students and therefore leasing of the property to the School is also only in furtherance of the objects of the Trust. Taking us through the judgment, the learned counsel submitted that the trial Court misconstrued the entries in the account books and the finding of the trial Court as to the mismanagement and maladministration is not well balanced and the documents produced by the Defendants were not analysed in proper perspective and therefore the judgment of the trial Court is liable to be reversed.
12. Taking us through Judgment of the trial Court, the learned counsel for respondents submitted that the Samaradhana festival and other poojas were not performed and the objects of Trust were not accomplished by Defendants 1 and 2. Reiterating the findings of trial Court, learned counsel would further submit that based upon evidence the trial Court rightly held that the objects of Trust were not performed and there was mismanagement and maladministration and the trial Court rightly ordered removal of Defendants No.1 and 2 from trusteeship. It was further submitted that keeping in view the objects of the Trust the trial Court rightly decreed the suit directing removal of Defendants 1 and 2 from trusteeship and ordering framing of Scheme.
13. Upon analysis of the evidence and material on record, the judgment of the trial Court and the submissions of both sides the following points arise for consideration in these Appeals:
1. Whether Defendants 1 and 2 acted in furtherance of the objects of the Trust as contended by Defendants 1 and 2?
2. Whether the finding of trial Court as to mismanagement and maladministration is correct?
3. Whether the dismissal of an appeal in A.S.No.3 of 2002 arising out of O.S.No.40 of 1988 would operate as res judicata and what is the effect of dismissal of Appeal A.S.No.3 of 2002?
4. Whether the finding and the judgment of the trial Court suffers from perversity warranting interference?
14. Point Nos.1 to 4:
The Pilla Muzhangi Trust came into existence in 1962 for the welfare of Arya Vaisya Pilla Muzhangi chettis in and around Rasipuram. Certain properties were dedicated for the objects of the Trust. On 21.6.1970, Mahasabha was convened and a Trust deed dated 21.6.1970 was registered. The objects of the Trust and the manner of administration of Trust properties and the election of office bearers is well elaborated in Ex.A.1 Trust deed. The objects of the Trust are as under:
@,e;j ou!;l;Lf;Fr; brhe;jkhd Rkhh; 200 tUl';fshf ekJ tk;rj;jhh;fspd; RthjPdj;jpYk; bghWg;gpYk; cs;ss epyk; filfs; fl;ol';fs; tifauhf;fis ey;y Kiwapy; brt;tnd guhkhpj;J te;J mjd; K:ykhf fpilf;Fk; tUkhdj;ijf; bfhz;L fe;jhak; Kdprpgy; thp bghJ kuhkj;Jfs; Kjypa bryt[fs; nghf kPjp ,Uf;Fk; bjhiffis bfhz;L ek;k tk;rj;jhh;fs; ghuk;ghpakhf Mz;LnjhWk; bra;J te;j fhh;j;jpif khj jhj;nua ncwhkk; tdngh$dk; Mj;J}h; nuhl;oy; cs;s tpehafh; jpUf;nfhtpypy; murkuk; mRtj;jk; g{i$ Mfpaitfis bra;Jtu ntz;oaJ vd;Wk; mt;tpjk; bra;jjd; gpd;g[ ,Uf;Fk; bjhiffspypUe;J ek;k Fy rK:fj;jhUf;F fy;tp kUj;Jt cjtp jpUf;nfhapypy; bja;t tHpghL mwf;fl;lisfs; Kjypaitfis elj;jp tu ntz;oaJ/ ///////////// "
15. Insofar as the maintenance and administration of properties, the Executive Committee has power to manage and administer the properties. The relevant recitals in Ex.A.1 are as under:
ekJ ou!;Lf;F ghj;jpag;gl;l brhj;Jf;fis thlif Fj;jif KjypaitfSf;F tpl;L tNypf;ft[k; kuhkj;Jfs; bra;Jtut[k; rhFgo bra;Jtut[k; mtrpakhd g[J fl;ol';fs; fl;lt[k; eph;thff; fkpl;of;F mjpfhuk; cz;L/
16. By reading of Ex.A.1, it is abundantly clear that the income from the Trust is to be primarily used for purpose of Dattatreya Homam (jj;jhj;nua ncwhkk;), Vana Bojanam (tdngh$dk;), Asuvattham pooja (mRtj;jk; g{i$) and also performance of poojas in Vinayagar temple. After performing poojas, if any amount is left, the same is to be spent for education and medical expenses of Pilla Muzhangi community people.
17. Case of Plaintiffs is that Defendants 1 and 2 were not properly functioning and that the amount is not utilised for performance of poojas for the benefit of Pilla Muzhungi community people as per the objects of the Trust. Per contra, according to Defendants, in 1975, elections were not held and till such time poojas were not performed and the elections were held in 1979 and 1984 respectively and the 1st Defendant was elected as Secretary. According to the 1st Defendant, elected trustees had executed a power of attorney authorising the Secretary - 1st defendant Panduranga Chettiar to administer the property. Further case of Defendants 1 and 2 is that only after they were elected, the lapses in the administration was rectified and Poojas were properly performed. Even though Defendants 1 and 2 claimed to be the elected office bearers, it is seen from the evidence that on 23.3.1986 in the Mahasabha meeting, 8th Defendant Ramalingam was elected as President and other office bearers were elected, which we refer to it shortly. Suffice it to note that in view of the election of office bearers in the Mahasabha meeting on 23.3.1986 Defendants 1 and 2 have no further right to represent Pilla Muzhangi Trust.
18. Learned counsel for Appellants contended that without granting leave under Section 92 of Civil Procedure Code, the plaint ought to have been rejected and the trial Court ought to have dismissed the suit for want of sanction under Section 92 of C.P.C. It was further contended that inasmuch as no leave was obtained by the Plaintiffs to file a suit under Section 92 CPC, the suit filed by the Plaintiffs purporting to be one under Section 92 of C.P.C., the same is not maintainable. It was further argued that the Judgment does not refer to any leave which was granted on the application filed by the Plaintiffs and therefore it has to be necessarily presumed that there was no leave obtained by the Plaintiffs.
19. The contention that the suit is bad for want of permission as contemplated under Section 92 C.P.C. is not tenable. The said contention is without any foundation and factually incorrect. As rightly contended by the learned counsel for Respondents, no such plea was raised in the written statement filed by Defendants 1 and 2 and no issue was framed to the above effect. Upon consideration of the submissions of learned counsel for Respondents and the judgment of the trial Court, it is seen that I.A.No.616 of 1986 was filed by the Plaintiffs in which the counsel for Defendants made an endorsement to the effect "without prejudice to the contention of Defendants 1 and 2,.... they have no counter in the application under Section 92 C.P.C at this stage". Taking note of the aforesaid endorsement, the learned trial Judge allowed the petition by order dated 26.6.1987. We have perused the certified copy of the petition, affidavit and the proceedings produced before us. In view of the aforesaid order passed in I.A.No.616 of 1986, the contention of the Appellants that the suit is bad for want of sanction does not merit acceptance.
20. In any event, Pilla Muzhangi Trust cannot be said to be a public trust mandating the obtaining of sanction under Section 92 C.P.C. The suit filed under Section 92 C.P.C represents a special nature for which the existence of a public trust is essential, whether express or constructive. As held by the Supreme Court in Deoki Nandan v. Murlidhar,( 1956 SCR 756 = AIR 1957 SC 133), the distinction between a private and a public Trust is that in the former the beneficiaries are specific individuals and in the latter they are the general public who are incapable of ascertainment. The fact whether the Trust is a private or public trust is a matter to be decided on merits in the suit. The proper test for determining whether the Trust would fall within the purview of Section 92 is to examine whether the Trust has been created substantially for public purpose. By reading of Ex.A.1 and considering recitals in Ex.A.1 and other documents, it is evident that Pilla Muzhangi Trust was crated for the benefit of Pilla Muzhangi Arya Vaisya community and the beneficiaries are specific individuals belonging to Pilla Muzhangi Arya Vaisya community. It cannot be said that Pilla Muzhangi Trust is a public trust meant for general public. Since the suit is in respect of a private trust, non-obtaining leave of the Court is not a relevant question for deciding the very maintainability of the suit.
21. Re-contention - Non-performance of Poojas:
Case of Plaintiffs is that Defendants No.1 and 2 have not performed the objects of Trust and that they have not performed poojas, Dattatreya Homam, Samaradhana, Vana Bojanam and Asuvattham Poojas. Defendants 1 and 2 have performed Dattatreya Homam and Samaradhana. According to Defendants 1 and 2, they have been regularly performing all the poojas as per the objects of the Trust. Defendants have produced Exs.B.11 and B.12 - Invitations to show that they have performed Vinayagar pooja on 1.12.1986. Defendants have also produced Ex.B.15 (26.11.1986) certificate of posting for sending the invitations for performance of Vinayagar poojai. Ex.B.17 is the invitation for performance of Samaradhana on 9.12.1985. Exs.B.19 to B.24 are the documents produced to show that Samaradhana invitation was sent by certificate of post. Likewise, for the year 1984, defendants 1 and 2 have produced Ex.B.28 (29.11.1984) - certificate of posting for sending invitations.
22. According to Defendants 1 and 2, they have performed Samaradhana in 1984, 1985 and 1986. As rightly pointed out by the trial Court, merely because of invitations and certificate of postings -Exs.B.19 to B.24 and B.28, it cannot be concluded that Samaradhana was performed by the defendants 1 and 2.
23. Ex.B.76 and B.77 are the Day Book and Ledger book of the Pilla Muzhangi Trust. As held by the trial Court, absolutely there is no reference about the printing of cards for the invitation of Samaradhana and also the entries regarding the amounts spent for certificate of posting. As pointed out by the trial Court, even though convening of general body meeting entries are made for the postal expenses of Rs.3.90 on 4.12.1985, whereas the expenses of printing of Samaradhana invitations and for sending them by certificate of posting no entries were made in Ex.B.76 Day book. The trial Court rightly raised the doubts about Exs.B.19 to B.24. Based upon Ex.B.19 to B.24 and B.17, it cannot be said that the primary object of the Trust viz., Samaradhana was performed by Defendants No.1 and 2.
24. Learned counsel for the Appellants contended that the conduct of religious and performance of other charities are only part of the duties under the Trust deed and the defendants 1 and 2 had only carried out duties cast upon them under Ex.A.1 -trust deed. It was further contended that the reasonings given by the trial Court for holding that there was no Samaradhana festival in Kanniga Parameswari temple are not sound. It was further argued that Ex.B.13 photograph produced to show the performance of religious duties was not properly appreciated. It was further argued that simply because the trial Court was not satisfied with regard to the performance of charities and performance of poojas, the trial Court was not justified in holding that Defendants No.1 and 2 have not properly discharged the functions of the Trustees. As extracted earlier in paragraph No.16, the main objects of the Trust are to perform Samaradhana festival, Dattatreya Homam, Vana Bojanam, Asuvathama Pooja, and Vinayagar pooja. The documents produced do not convincingly establish that the primary object of performing pooja like Samaradhana was performed. Defendants 1 and 2 have not adduced any independent evidence to show that Samaradhana was performed. On the other hand, the Plaintiffs have examined P.W.3, who, in his evidence, has stated that for about ten years prior to the filing of the suit, Samaradhana was not performed. Faced with such evidence and pointing out the noting of entries in Ex.B.76 Day book regarding the expenses made for performance of Samaradhana, trial Court rightly held that Defendants 1 and 2 have not properly discharged/performed the main object of the Trust viz., performance of poojas.
25. Re-contention Maintenance of Accounts:
Case of Plaintiffs is that the Defendants 1 and 2 have not properly maintained the accounts and the accounts were also not produced in the Mahasabha meeting. To show that they are maintaining the accounts, Defendants 1 and 2 have produced Ex.B.76 day book and B.77 ledger. According to Defendants 1 and 2, the accounts they were properly maintaining accounts and were also approved by the general body meeting. Ex.B.5 is the Minutes book showing that entries were made from 14.12.1980. Even though entries are made in Ex.B.5 from 1980, there is no convincing evidence to show that the accounts were properly written and approved by Mahasabha. Referring to the various discrepancies in the account books - day book - Ex.B.76 and ledger Ex.B.77, the trial Court arrived at the conclusion that the accounts were not properly written for each and every year and accounts must have been written at a stretch. As submitted by the learned counsel for the Respondent, the entries in the account books, vouchers were also not produced.
26. In Ex.B.5 Minutes book it was stated that the general body meeting was held on 5.8.1984 and thereafter the meeting was held on 8.12.1985. Ex.B.5 contains 172 pages. Even when Ex.B.5 - Minutes book was in the currency, Minutes of the meeting held on 8.12.1985 was written in a separate Minutes book. Absolutely, no plausible reasons are forthcoming for writing Minutes of the meeting dated 8.12.1985 in a separate Minutes book.
27. In the meeting held on 29.11.1985, three resolutions are said to have been passed. The first resolution in Ex.B.5 Minutes book reads as under:
@ek; ou!;od; kfhrigf; Tl;lj;ij tUk; ork;gh; khjk; 8k; njjp "hapw;Wf; fpHik Tl;o Mnyhrpj;J rpy Kf;fpa jPh;khd';fs; epiwntw;w Mz;lwpf;ifa[k; tut[ bryt[ fzf;ifa[k; rkh;g;gpf;fyhkhft[k; jPh;khdk; Vfkdjhf epiwntwpaJ/@
28. According to Defendants 1 and 2, in the meeting held on 29.11.1985, Mahasabha has resolved that the Minutes of the meeting on 8.12.1985 has been written in a separate Minutes book. The Minutes read as under:
@29/11/85y; jPh;khdpf;fg;gl;l go 8/12/85k; njjp kfhrigf; Tl;lk; gw;wpa jPh;khd';fs; jdpg;gl;l kpdpl; g[f;fpy; gjt[ bra;ag;gl;lJ/@
Even though three resolutions were said to have been passed on 29.11.1985, no such resolution was reduced in writing to the effect that the minutes of meeting dated 8.12.1985 should be written in a separate Minutes book. In the absence of any contemporaneous evidence to show the necessity to open a separate Minutes book, no reliance could be placed upon Ex.B.46, which contains the Minutes of the meeting held on 8.12.1985.
29. Learned counsel for Appellant contended that Defendants 1 and 2 took charge of the administration of the Trust very lately and they were to learn many things in the administration and maintenance of the Trust and while so, it cannot be expected from Defendants 1 and 2 to maintain the Minutes book in such an orderly fashion. It was further contended that Defendants 1 and 2 are not so trained to maintain the Minutes book and while so the trial Judge was not justified in finding that the Minutes book of the Trust was not properly maintained. Having taken charge of the Trust, Defendants 1 and 2 are expected to maintain the Minutes book in a cogent manner and the Minutes are to be entered in a cogent and orderly manner. When Ex.B.5 Minutes book was maintained from the year 1980 and when it had sufficient pages left, absolutely there are no reasons for having a printed book for entering the resolution of the meeting held on 8.12.1985. This is all the more so, when the meeting dated 8.12.1985 is very crucial as it relates to the resolution passed regarding compensation amount.
30. Pointing out the absence of any resolution in the Minutes of meeting dated 29.11.1985, Ex.B.5 Minutes book, the trial Court rightly held that Ex.B.46 Minute book and the said resolution passed on 8.12.1985 must have been created for the purpose of the case. We endorse the views of the trial Judge that the entries in Ex.B.46 are not contemporaneous and appears to be manipulated to make up the unauthorised withdrawal of the compensation amount.
31. The compensation amount of Rs.3,31,634.55ps:
The Trust owned property to an extent of 2.44 acres in S.No.286 of Rasipuram. From out of 2.44 acres, 2.10 acres was acquired by the Telephone Exchange for which compensation amount of Rs.3,31,634.55ps was paid. As per Section 34 of Indian Trust Act, where Trust property is of money and cannot be applied immediately for the purpose of the Trust, the trustee is bound to invest the money on the securities indicated in Section 34 of the Act. The powers of investigation of a trustee are subject to any direction contained in the instrument of Trust.
32. As seen from Ex.B.46, in the alleged meeting held on 8.12.1985, the following resolution is said to have been passed:-
@nkw;go epy Mh;$pjj;jpw;fhf bfhLf;fg;gl;Ls;s ec;&l <l;L bjhifia rpwe;j Kiwapy; ghpghydk; bra;at[k; nkw;go bjhifia guhjPdk; bra;gth;fs; vt;tifapYk; Klf;fk; bra;ah tz;zk; rl;l hPjpapy; nkw;go bjhifiag; bgw;Ws;s brayhsh; jd;brhe;jg; bghWg;gpy; bjhifia ufrpakhf ghJfhf;ft[k; ek;gj; jFe;jth;fSf;F epaha tl;of;F fld; bfhLj;J tNy; bra;a[k; bghUl;Lk; eph;thf ve;jpuj;ij epue;jukhf gyg;gLj;jt[k;. ou!;od; nehf;f';fs; epiwntw;w nkw;go bjhifapy; tUk; tUkhdj;ijg; gad;gLj;jt[k; brayhsh; gp/Mh;/ghz;Lu';fd; mth;fSf;F mjpfhuk; mspj;J jPh;khdk; Vfkdjhf epiwntwpaJ/@
33. The case of Defendants is that the 1st Defendant was authorised to keep the amount in his custody and secretly protect the amount. The said resolution is also said to have authorised Defendant No.1 to lend the amount and earn interest and the interest income has to be utilised for the objects of the Trust. As pointed out earlier, the entry in Ex.B.46 is not contemporaneous. The resolution to the effect that the amount has to be secretly protected and secretly managed is neither in accordance with the provisions of Trust Act nor as per the recitals of Ex.A.1 Trust deed.
34. In their defence, D.W.1 has stated that the amount was lent to others on promissory notes and the interest was utilised for performing the objects of the Trust. Absolutely there is no evidence to show to whom the amounts were lent and how much was the interest income derived. There was also no entry in Ex.B.77 Ledger as to the persons to whom the amount was lent. As stated by P.W.1, the Trust has the accounts only in Salem Central Cooperative Bank, Rasipuram. The 1st Defendant has opened a new account in Namakkal Lakshmi Vilas Bank and deposited the amount in the Namakkal Lakshmi Vilas Bank and not in the account of the Trust, which is in the Salem Central Cooperative Bank, Rasipuram.
35. The learned counsel for the Appellants contended that normally the loan documents cannot be produced before the Court since those documents are required for the purpose of collecting interest and other principal amount from the loanees and because those documents were not produced before the Court trial Court went wrong in presuming that there was no evidence to hold that Defendants 1 and 2 have invested the Trust amount in the name of Trust. It was further contended that the trial Court did not keep in view that the Plaintiff had not produced any rebuttal evidence and in the absence of any rebuttal evidence regarding disproval of the amounts lent, the trial Court ought to have accepted the account books of the Trust with regard to the investment of the amount.
36. As per Section 20 of Indian Trust Act, where the trust property consists of money and cannot be applied immediately or at an early date to the purposes of the trust, the trustee is bound to invest the money on the securities indicated in Section 20. The powers of investment of trustees arise either in the absence of any express provision, or under the provisions of a trust instrument, or under statutory provisions. Independently of provision, it is the duty of a trustee having trust money in his hands, which cannot be applied under the trust, to make the fund productive to the cestui que trust (for the benefit of beneficiaries having an equitable interest in the Trust) by proper investments. The duty of a trustee is to take care as ordinary prudent man would take if he were to make an investment for the benefit of other people for whom he is bound to provide.
37. The Court will not generally interfere with the discretion given to the trustees if they are exercised by them in good faith. The onus is on the Plaintiffs who impeach the conduct of the Defendants/Trustees to prove such faults. The Court will not interfere with the trustees' discretion as to one of several modes of investment. But the Courts will certainly interfere where the trustee has not acted prudently. As pointed out earlier, in the absence of evidence showing that the money was lent on promissory notes, it cannot be held that Defendants 1 to 4 have acted as an ordinarily prudent man would have acted. It cannot be held that Defendants 1 to 4 have acted in accordance with the provisions of Section 20 of the Indian Trust Act. This is all the more so, when the consent of general body meeting was not obtained as to the mode of investment.
38. Section 34 of the Act contemplates that the trustee upon a statement of facts may apply to the Court for opinion, advice or direction and while so acting in accordance with such opinion, advice or direction, he shall be deemed to have discharged his duty as trustee in the subject matter of the obligation. Admittedly, Defendants 1 and 2 have neither obtained permission nor sought for the opinion or direction of the Court as to the mode of investment or other appropriate direction. Even though the original promissory notes may be required for collection of interest and other purposes, there was no impediment for producing the xerox copies of the documents. In the absence of any oral or documentary evidence, it is not possible to accept the plea that Defendants 1 and 2 have lent the amount on promissory notes to earn income interest.
39. During cross examination of D.W.1/Defendant No.2, he has stated that they have resolved to do money lending from out of the compensation amount and since the other members prevented them they withdrew the amount deposited in Bank and they decided to do money lending business. D.W.1/ 2nd defendant has further admitted that himself and his younger brother borrowed an amount of Rs.81,000/- and deposited the said amount in fixed deposit with Lakshmi Vilas Bank, Namakkal. From the evidence of D.W.1, it is clear that the 2nd Defendant, who is one of the trustees and his younger brother had borrowed the amount and deposited the amount in a fixed deposit in their names in Lakshmi Vilas Bank, Namakkal.
40. As per Section 51 of the Indian Trust Act, a trustee may not use or deal with the trust property for his own business or for any other purpose and connected with the Trust. The principle underlying Section 51 is that a person,who accepted the position of a Trustee and has acquired property in that capacity, will not be permitted to assert right in himself and law precludes a trustee from making a profit or acquiring benefit from his office as a trustee. In our considered view, borrowing the amount of Rs.81,000/- each by the 2nd Defendant and his younger brother from the Trust and depositing the amount in their own names is in clear violation of Section 51 of the Act and it prejudicially affect the interest of the Trust.
41. Admittedly, an order was passed in I.A.No.166 of 1988 in O.S.No.310 of 1986 on 13.7.1988 directing Defendants 1 and 2 to deposit all the amounts belonging to the Trust in the Indian Bank, Rasipuram and that order remains unchallenged. Admittedly, inspite of the order of the Court the amounts belonging to the Trust have not been deposited. We are of the view that the trial court rightly held that in violation of Section 51 of the Act, Defendant No.2 had invested the amount of Trust in his own name, which is for his personal gains. The learned counsel for the appellants contended that though a sum of Rs.81,000/- was taken by the 2nd Defendant and his brother, still the same cannot be construed as irregular act since the amount continues to be in the investment of Lakshmi Vilas Bank, Namakkal. It was submitted that Defendants have filed review application to review the order dated 13.7.1988 in I.A.No.166 of 1988 and therefore, it was not proper for the trial Court to comment upon the non-deposit of the amount pursuant to the order dated 13.7.1988. Though review application was filed, it was not brought to our notice that the order dated 13.7.1988 in I.A.No.166 of 1988 directing deposit of amount in the bank was reviewed by the trial Court. Coupled with other facts and circumstances, withdrawal of Rs.81,000/- by the 2nd Defendant and his brother and depositing in their own names in the Lakshmi Vilas Bank, Namakkal cannot be said to be a mere irregularity. Such an act is clear violation of Section 51 of the Indian Trust Act fortifying the conclusion of the trial Court that Defendants 1 and 2 have not properly administered the Trust.
42. Charitable and Educational Purposes:
As per the recitals in Ex.A.1 Trust deed, the money should be spent for conducting Dattatreya Homam and Vana Bojanam and that if there is any balance amount the same shall be spent for education and medical expenses and welfare of Pilla Muzhangi community. Though it is clearly stated in the Trust deed that the income obtained from the Trust properties should be utilised for education and medical expenses of the Pilla Muzhangi community, no document was produced to show that the balance amount was spent for the benefit of the community.
43. The defendants have produced Ex.B.25 (25.12.1985) receipt for an amount of Rs.4,000/- given by the 1st Defendant to Melmaruvathur Suyambu Arulmigu Aathiparasakthi weekly worship association. No entry had been made in Ex.B.76 - Day Book to show that the amount of Rs.4,000/- was given to Melmaruvathur Suyambu Aathiparasakthi and poor feeding.
44. In Ex.B.76 Day book, two expenditures are shown i.e., Rs.3,500/- for Aathiparasakthi temple Kalasa pooja and Rs.500/- for uniform expenses for poor students. Contrary to Ex.B.25 to the effect that an amount of Rs.4,000/- was given as donation on 25.12.1985, as per the entries an amount of Rs.3,501/- was given for Yagam and Pooja on 1.1.1986 and Rs.500/- for uniform. As pointed out earlier, the amount is to be spent only for the charitable and medical expenses and welfare of Pilla Muzhangi community. Assuming that an amount of Rs.4,000/- was donated as per Ex.B.25, it cannot be said that the said donation was in furtherance of the object of the Trust.
45. In his evidence, D.W.1/Defendant No.2 has stated that the 1st Defendant is a philanthropist and the Trust amount was utilised for feeding the poor in the festival organised by Aathiparasakthi worship association. To substantiate the evidence of D.W.1, Ex.B.26 - invitation for feeding the poor by the 1st Defendant and Ex.B.27 advertisement for the same were filed by Defendants 1 and 2. That apart, the 1st Defendant is also said to have obtained permission in writing (Ex.B.30) to supply bread and milk to the patients in Government Hospital, Rasipuram. Exs.B.31 to B.34 have been filed to show that the 1st Defendant had given the milk and bread to the patients in the Hospital. Exs.B.37 and 38 were also filed to show the entire gopuram and photograph of Vinayagar temple for which the 1st Defendant is said to have spent the amount. Supplying of bread and milk to the patients in the Hospital and poor feeding might be a philanthropic activity of the 1st Defendant, but the same was not in furtherance of the object of the Trust. Pointing out that such activities of the 1st Defendant was not in furtherance of the objects of the Trust, the trial Court held that the medical help and other activities appeared to have been done by the 1st Defendant with an intention of self-advertising himself.
46. In his evidence, D.W.1 has further stated that the defendants have also produced Ex.B.44 receipt for donating Rs.500/- to Aathi Parasakthi Vazhipattu Mantram. Ex.B.45 is the receipt for donating Rs.1,000/- towards building funds for construction of free hospital for Deiveeka Vazhkai Sangam (Divine Life Association).
47. Here again, donating the amount to Aathi Parasakthi Vazhipattu Mantram and other activities were not in furtherance of the object of the Trust. It may be that the 1st Defendant has spent the amount for some good purpose, but the same was not in furtherance of the objects of the Trust. Upon analysis of evidence, trial court rightly held that the acts of Defendants 1 and 2 and donating amount as per their own will were not in furtherance of the object of the Trust and that Defendants 1, 3 and 4 did not properly run the administration of the Trust.
48. So far as the suit property Item No.2 S.No.74/29, Ex.A.2 - usufructuary mortgage Bhokiam in respect of an extent of 9 cents in S.No.74/29 was executed in favour of the 7th Defendant. Admittedly, no permission was obtained from the District Collector for creating usufructuary mortgage/Bhokiam. In respect of administration of the Trust property, the recitals in Ex.A.1 are to the effect that the property is to be properly maintained and the income obtained from the said building shall be utilised for paying the municipal tax, kist and for attaining the objects of the Trust. Ex.A.1 by itself does not speak about the creation of the mortgage or leasing of the property. In the absence of any recitals in Ex.A.1- Trust deed and without obtaining permission from the District Court for creation of usufrucutary mortgage it cannot be said that Ex.A.2 is legally binding upon the Trust. In Ex.A.2 Bhokiam, it is stated that Rs.52,000/- has been received for the benefit of Pilla Muzhangi Trust and for necessary expenses. 7th Defendant was examined as D.W.2. In his evidence, D.W.2 has stated that he has paid Rs.52,000/- by way of bank draft. It is not stated in Ex.A.2 that the amount of Rs.52,000/- was paid by way of bank draft. As rightly pointed out by the trial Court, absolutely there is no evidence as to what was the necessity for creation of Bhokiam in 1985. Receipt of Rs.52,000/- on 10.10.1985 was also not entered in the Day Book Ex.B.76.
49. As per Section 34 of the Indian Trust Act, without instituting a suit any trustee may make an application to the Civil Court of original jurisdiction seeking for its opinion, advice or direction in respect of management or administration of the Trust Board. Evidently, no permission was obtained from the Court to administer the immovable property Item No.2 Survey No.74/29. As no permission was obtained for creation of usufructuary mortgage, the finding of the trial Court that Ex.A2 Bhokiam and the payment of Rs.52,000/- under the said Bhokiam is not binding upon the Trust is based on evidence and materials on record and the same is confirmed.
50. Lease in favour of Defendant No.6 Rasipuram Educational Trust in respect of 29 cents in suit property Item No.1 in S.No.286 of Rasipuram. - Excluding the extent measuring 2.10 acres acquired for the Telephone Department and 5 cents let out to Periyasamy, remaining 29 cents was let out to the 6th Defendant Rasipuram Educational Trust, who has constructed a school building and has been running the school. According to the Plaintiffs, 6th Defendant has not even paid the ground rent for using the Trust land and hence seeks direction for evicting the 6th Defendant and to hand over possession. As discussed earlier, Defendants 1, 3 and 4 have not obtained permission or opinion of the Court for leasing 29 cents in S.No.286 for a long term or to give the property to the 6th Defendant for running the school.
51. According to the 6th Defendant, by a resolution dated 13.5.1979, permission was granted to give the land measuring about 1.34 acres to the Rasipuram Vidya Mandir School Committee and that on 25.5.1979, school was started by receiving donations from the public. Further case of Defendant No.6 is, people of Pilla Muzhangi community convened a meeting and handed over 1.34 acres of land by virtue of an agreement and at that time, the name of Sri Vidya Mandir Educational Trust was changed as Rasipuram Educational Trust. Ex.B.51 is the letter written by six members of Pilla Muzhangi community agreeing for starting Rasipuram Educational Trust. Ex.B.52 is the copy of the petition sent by Ramachandra Chettiar, the then President of Pilla Muzhangi community Trust to Sub-Collector, Namakkal stating that Sri Vidya Mandir School has been functioning in the Trust property S.No.286/2 and that the said land was gifted to Rasipuram Sri Vidya Mandir Educational Trust. Ex.B.58 is the certificate issued by Rasipuram Municipality, which is to the effect that from the year 1982-83 the levy of house tax was changed in the name of Sri Vidya Mandir Higher Secondary School. Ex.B.59 is the proceedings of the Director of School Education dated 5.7.1984 granting permission to open a new Matriculation School at Rasipuram in the name of Sri Vidya Mandir Matriculation School with Standards VI to VIII under the management of Rasipuram Sri Vidya Mandir Association during 1984-85. Exs.B.60 to B.68 are the letters sent by Ramachandra Chettiar, the then President of Pilla Muzhangi community Trust seeking benefit of exemption of fee to the students of Pilla Muzhangi community, who are seeking admission in the school. Learned counsel for the Appellant contended that even though the land of 29 cents was donated to the 6th Defendant, the then Sri Vidya Mandir Trust, the 6th Defendant was admitting the students of Pilla Muzhangi community by exempting them from paying fees and therefore running of the School in an extent of 29 cents in S.No.286 is to be construed for the benefit of Pilla Muzhangi community. It was further contended that by so exempting the students from paying the fees the 6th Defendant was only rendering service to Pilla Muzhangi community, which is in furtherance of the objects of the Trust. The learned counsel would also submit that out of the School Committee members, six members are from Pilla Muzhangi community and only 5 members are from other communities and therefore viewed from any angle, the 6th Defendant School has been functioning only for the benefit of Pilla Muzhangi community people.
52. Even though Ramachandra Chettiar, the then President of Pilla Muzhangi community Trust has written Exs.B.60 to B.68 seeking benefit of exemption of fees, no document was produced to show that fee exemption was granted to the students of Pilla Muzhangi community. It is also not known how many students of Pilla Muzhangi community were admitted to the School and how best the interest of the community was served by the 6th Defendant.
53. Even though Rasipuram Educational Trust was started with 11 trustees, out of which six members are from Pilla Muzhangi community, it is seen from Ex.B.54 that six trustees of Pilla Muzhangi community from the 6th Defendant Educational Trust have resigned from the Rasipuram Educational Trust. When the six trustees of 6th Defendant have resigned, it cannot be said that the School is being run for the benefit of Pilla Muzhangi community and in furtherance of the object of the Trust.
54. In his evidence, D.W.3/6th Defendant President of Rasipuram Educational Trust has stated that the 6th Defendant Trust is running School and sofar about 60 persons of Pilla Muzhangi community have received the benefit of free education. Absolutely no document was produced or list of persons have been produced showing the names of 60 persons benefited. In his evidence, D.W.3 has also admitted that six members of the Community have resigned from the trusteeship of 6th Defendant and the same was not filled up. In the absence of cogent and convincing evidence, it cannot be the contention that the School and the 6th Defendant Trust are acting for the benefit of Pilla Muzhangi community does not merit acceptance. As rightly held by the trial Court, the 6th Defendant Rasipuram Educational Trust is also liable to deliver vacant possession to the plaintiff Trust.
55. Further case of Defendant No.6 is that a Committee was constituted consisting of six persons from Pilla Muzhangi community and 5 persons from other community and later buildings were constructed by spending more than Rs.3 lakhs and that the school is functioning there. No documents were produced by the 6th Defendant to substantiate the fact that possession has been handed over to the 6th Defendant. Ex.B.49 is the letter sent by Arya Vaisya Pilla Muzhangi community Trust to Sri Vidya Mandir to run Sri Vidya Mandir School. The copy of the resolution dated 13.9.1979 has been marked as Ex.B.50. As per Ex.B.50 - resolution, it is seen that in Rasipuram Vidya Mandir Trust there would be 11 trustees out of which six members are from Pilla Muzhangi community and 5 members are from other community.
56. The finding of trial Court that there was mis-management and maladministration of Trust property and that Defendants 1 to 4 were not acting in furtherance of the objects of the Trust is based upon evidence and materials on record. Upon analysis of evidence and material on record, trial Court rightly found that the Trust Management was not properly managed and that there is a necessity for framing a new scheme.
57. As per the recitals in Ex.A.1, the male members, aged about 21 years are eligible to vote and that the General Body Meeting shall be convened once in five years. The recitals in Ex.A.1 for holding election and election of President, Office bearers and other trustees read as under:
"mt;tpjk; njh;e;bjLf;fg;gl;l eph;thf fkpl;oahh; j';fSf;Fs; xUtiu jiytuhft[k; xUtiu cgjiytuhft[k; xUtiu my;yJ jdpj;jdpahf ,Utiu fhhpajhprpahft[k; bghUshsh; Mft[k; njh;e;bjLj;Jf; bfhs;s ntz;oaJ vd;Wk; kw;wth;fs; iluf;lh;fshft[k; ,Ue;J tUlk; xd;Wf;F Fiwe;jJ ,uz;L eph;thf rigf;Tl;l';fSk; xU kfhrigf;Tl;lKk; Tl;o tut[ bryt[ fzf;Ffisa[k; Mz;L mwpf;ifiaa[k; btspapl;L kfhrigapd; m';fPfhuk; bgw ntz;oaJ vd;Wk; njh;e;bjLf;fg;gl;l eph;thfpfspy; ahbuhUtuhJ Fiwe;jJ bjhlh;e;J K:d;W eph;thf rigf; Tl;l';fSf;F tuhkw;nghdhnyh my;yJ ahbuhUtuhJ ,aw;if va;jptpl;lhnyh eph;thff; fkpl;oahnu ek;k tk;rj;jhhpy; xUtiu eph;thff; fkpl;o m';fj;jpduhf epakpj;Jf; bfhs;syhk; vd;Wk; mt;tpjk; epakpf;fg;gl;lth; mLj;J TLk; tUlhe;jpu kfhrigf; Tl;lk; tiu eph;thf fkpl;o bkk;guhf ,Ue;J tUtJ vd;Wk; mt;tpj epakdj;ij nkw;go kfhrigapy; m';fPfhuk; bgw ntz;oaJ vd;Wk; ek;k tk;rjhahjpfspy; Ie;J ngh;fs; ifbaGj;jpl;L xU kfhrigiaf; Tl;l ntz;Lbkd;W nfl;Lf; bfhz;lhy; eph;thf rigahh; xU kfhrigiaf; Tl;lntz;oabjd;Wk"
58. It is seen from the recitals in Ex.A.1 that the General Body meeting has to be convened if a notice is given to more than five members to convene general body meeting. The then President of the Trust Ramachandra Chettiar died on 29.12.1985. Since there were many chaos in managing the Trust and that since the activities were not performed in accordance with the conditions of power of attorney given to the 1st Defendant, number of persons of Pilla Muzhangi community issued Ex.B.70 notice to immediately convene general body meeting. In Ex.B.70 notice, it was also informed that on failure to convene general body meeting, Ex.B.70 shall be construed as notice and General Body meeting will be held at Kanniga Parameswari temple, Rasipuram on 26.1.1986 at 10.30 A.M. The acknowledgment of the said notice has been marked as Ex.B.71. Even after receiving Ex.B.70 notice 1st Defendant has not taken any efforts to convene the general body meeting. As seen from Ex.B.46, it contains only the Minutes of the alleged meeting held on 8.12.1985 and no further meeting was convened. As the 1st Defendant had not taken action to convene the meeting even after receiving the notice under Ex.B.70, it is evident from the Circular Book Ex.B.72 that a notice was issued convening the general body meeting on 23.3.1986. In this regard, notice was also issued to the 1st Defendant on 15.1.1986. It is evident from Ex.B.74 (Minutes of the meeting held on 23.3.1986) that in the meeting held on 23.3.1986 P.K.Ramalingam Chettiar was elected as the President and one Sugavanam Srinivasan as the Secretary and others as members of the Administrative Committee.
59. The contention of the Appellants is that without considering the aspect of the validity of the meeting allegedly held on 23.3.1986, the trial Court hastened to hold that P.K.Ramalingam Chettiar had been elected as the Managing Trustee in the place of Defendants 1 and 2 and such finding is completely vitiated. It was further contended that there was no valid meeting held on 23.3.1986 and P.K.Ramalingam Chettiar was not duly elected as the Managing Trustee of the Trust and without any discussion on that aspect, the trial Court proceeded to hold that there was a meeting held on 23.3.1986 and that 8th Defendant was elected as the Managing Trustee of the Trust.
60. As pointed out earlier, in Ex.B.70, about 9 persons have issued notice to convene the general body meeting and inspite of such notice the 1st Defendant had not convened the meeting. After issuing notice to the 1st Defendant as per Ex.B.73, the general body meeting was conducted on 23.3.1986 and proceedings of the said meeting dated 23.3.1986 (Ex.B.74) would bind the persons belonging to the Trust. After the election of P.K.Ramalingam Chettiar as the President and others as the office bearers, Ex.B.75 (21.11.1987) notice was issued.
61. The trial Court held that the meeting dated 23.3.1986 is valid in law and that Ramalingam Chettiar had been elected as the President as per the resolution Ex.B.74. On 21.11.1987, Sugavana Srinivasan, Secretary of the Trust has issued notice informing Defendants 1 to 4 that they have no right to convene General Body Meeting on 23.11.1987 and also calling upon them to ponder over their activities. Ex.B.75 reads as under:
@nky; Fwpg;gpl;l gj;jpu';fisa[k. ,urPJfisa[k; kPz;Lk; xUKiw kdrhl;rpia itj;Jf; bfhz;L vLj;J ghU';fs;. ,e;j epyk; ahUf;F rk;ke;jg;gl;lJ vd;gija[k;. jh';fs; bra;J tUk; bgha; gpurhuk; rhpahdjh vd;gija[k; rpe;jpa[';fs;/
jh';fs; Tl;Lk; 23/11/87 kfhrig Tl;lk;. rl;lj;jpw;Fk;. jh;kj;jpw;Fk; g[wk;ghdJ/ vdnt ,e;j Tl;lj;jpy; ahUk; fye;J bfhs;skhl;lhh;fs; vd;gij bjhptpj;Jf; bfhs;fpd;nwhk;/@
62. O.S.No.93 of 1986 was filed by the 1st Defendant Panduranga Chettiar to restrain the newly elected office bearers from interfering with the management of the Trust. As rightly held by the trial Court, on the date of filing the suit i.e., on 1.4.1986, Panduranga Chettiar was not the Secretary of the Trust and he was not entitled to file the suit and the suit O.S.No.93 of 1986 was rightly dismissed.
63. P.K.Ramalingam Chetiar filed O.S.No.39 of 1988 for a declaration that the election of the office bearers in the meeting held on 23.3.1986 is valid and that the 1st Defendant Panduranga Chettiar is not the Secretary and for permanent injunction restraining the 1st Defendant from interfering with the administration of the Trust. By the common judgment, the said suit - O.S.No.39 of 1988 was decreed. The judgment and decree in O.S.No.39 of 1988 was challenged before Fast Track Court, Namakkal in A.S.No.2 of 2002 and the said Appeal came to be dismissed. By dismissal of the Appeal A.S.No.2 of 2002, the findings in O.S.No.39 of 1988 upholding the election of office bearers in the meeting held on 23.3.1986 is a finding against the Defendants 1 to 4.
64. In O.S.No.40 of 1988, Panduranga Chettiar sought for a declaration that the meeting held on 23.3.1986 and the election of Panduranga Chettiar as President and others as office bearers is not valid. By the common judgment dated 30.6.1993, the said suit O.S.No.40 of 1988 came to be dismissed, which was challenged by filing Appeal - A.S.No.3 of 2002 on the file of Fast Track Court, Namakkal and the Appeal was dismissed for default on 10.4.2006.
65. Learned counsel for the respondents contended that because of dismissal of A.S.No.3 of 2002, the finding in O.S.No.40 of 1988 has become final and contentions raised in this appeal are hit by res judicata.
66. Contending that the findings in O.S.No.39 of 1988 and 40 of 1988 have become final and that those findings will operate as res judicata, the learned counsel for the respondents placed reliance upon AIR 1977 SC 1268 (NARAYANA PRABHU VENKATESWARA PRABHU VS. NARAYANA PRABHU KRISHNA PRABHU (DEAD) BY L.RS; AIR 1993 SC 1202 (PREMIER TYRES LTD. VS. KERALA STATE ROAD TRANSPORT CORPORATION) and AIR 1963 ALLAHABAD 210 (BHAGWAN SAHAI VS. DARYAO KUNWAR AND ANOTHER).
67. In AIR 1976 SC 1645 (LONANKUTTY V. THOMMAN), the Supreme Court observed thus:
".... Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit. They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S.66 of 1958 which arose out of the decree passed by the trial Court in the appellant's suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondent's suit became final and conclusive. ....
The decision of the District Court was given in an appeal arising out of a suit which, though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was, therefore, one in a 'former suit' within the meaning of Section 11, Explanation I, Civil Procedure Code...."
68. In NARAYANA PRABHU VENKATESWARA PRABHU VS. NARAYANA PRABHU KRISHNA PRABHU (DEAD) BY L.RS ( AIR 1977 SC 1268), and the judgment of the Full Bench of Allahabad High Court in AIR 1963 ALLAHABAD 210 (BHAGWAN SAHAI VS. DARYAO KUNWAR AND ANOTHER), the Supreme Court and Allahabad High Court have referred to the decision of the Supreme Court in Narhari v. Shanker,( 1950) I SCR 754, wherein it was held as under:
"It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand, J. in his learned judgment in Mst Lachmi v. Mst Bhuli (AIR 1927 Lah 289) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one."
(underlining added)
69. We have carefully perused the judgment of Narhari case. The observation of the Supreme Court "where there has been one trial, one finding and one decision", there need not be two appeals even though two decrees may have been drawn up. The Supreme Court further proceeded to observe that even when there are two suits, a decision simultaneously given in one suit cannot be a decision in the former suit. We are of the view that even though as such there is no question of application of principles of res judicata, the judgment in O.S.Nos.39 and 40 of 1988 is conclusive regarding the points decided between the same parties i.e., the conclusion of the trial Court upholding the election of P.K.Ramalingam as President and other office bearers in the general body meeting held on 23.3.1986 has attained finality. In the appeal preferred against judgment in O.S.No.310 of 1986, the findings in O.S.Nos.39 and 40 of 1988 is a serious impediment to the Defendants 1 to 4 from pursuing the matter as representing the Trust.
70. The finding of trial Court that there was mismanagement and maladministration of Pilla Muzhangi trust is based upon evidence and materials on record. For leasing out the immovable properties in item No.2- S.No.74/29 to the 7th Defendant and for giving the property to the 6th Defendant - Rasipuram Educational Trust and no permission was obtained from the Court nor views or the advice of the Court was obtained as contemplated under Section 34 of the Indian Trust Act. Faced with the overwhelming evidence, the trial Court rightly held that the Trust Management was not properly managed and there was maladministration and that there is a need for framing a scheme for administration of the Trust and also removal of Defendants 1 to 4 from the trusteeship/positions. No substantial grounds are made out warranting interference with the findings of the trial Court.
71. In the result the common judgment and decrees in O.S.Nos.310 and 1986 and 93 of 1986 on the file of Subordinate Judge, Namakkal are confirmed and the Appeals are dismissed. In the circumstances of the case, there is no order as to costs.
[R.B.I.,J] [M.V.,J]
19.04.2010
Index:Yes
Internet:Yes
R.BANUMATHI, J.
and
M.VENUGOPAL,J.
usk
usk
Copy to:
Fast Track Court No.3,
Namakkal
Pre-delivery Judgment in
A.S.Nos.235 and 236 of 1994
19.04.2010
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