N. Sripadmanaba Nadar v. P. Ramalinga Nadar — 1986 DIGILAW 174 (MAD)

JUDGMENT 1. The first defendant in O.S.No.41 of 1977, Sub Court, Nagercoil, is the appellant in this appeal. That suit was instituted by the respondents herein for a declaration that Kaikkan Pathy Narayanaswmay Trust is the private family trust of the respondents and others and for the removal of the appellant from management, settling of a scheme and appointment of new trustees and for an account from the appellant from 28.8.1933. 2. The facts giving rise to the dispute between the parties are as under: One Parameswaran Nadar constructed a temple and installed Narayanaswamy therein and conducted daily poojas, monthly kattalais and yearly festivals. He had also acquired and set apart 11 items of properties for that purpose. Respondents 1 and 2 are the sons of Parameswaran Nadar. Respondents 3 and 4 are his major grand-sons. Parameswaran Nadar constituted himself as the first trustee for the management and administration of the temple and its properties and he executed on 18.9.1952 a registered Odambadi in favour of his eldest son Narayana Perumal Nadar, the father of the appellant and the second defendant in the suit. As per the provisions of Odambadi, Narayana Perumal Nadar was to assist his father during his lifetime and thereafter he was to enjoy the property, realise the income, perform the poojas, etc., without default and the other members of the family were entitled to get prasadams and other emoluments. Narayana Perumal Nadar was also empowered to appoint a successor. After the execution of the registered Odambadi on 18.9.1952, the founder Parameswaran Nadar purchased one more item, item 12 in the suit, and he died subsequently on 12.1.1129 M.E. (1954) Narayana Perumal Nadar succeeded as the trustee and according to the respondents, he died on 23.5.1967 without appointing a successor and without making available the accounts of the income as well as expenditure. Thereafter, the appellant got into the management of the temple and its properties and had been conducting the poojas. However, he did not maintain accounts of the income and expenditure from the properties of the trust and had also suppressed the accounts. Thereafter, the appellant got into the management of the temple and its properties and had been conducting the poojas. However, he did not maintain accounts of the income and expenditure from the properties of the trust and had also suppressed the accounts. Claiming that the respondents have a right to see the proper performance of the objects of the trust and that the appellant was unwilling for electing two trustees from among the beneficiaries for the management of the trust properties and the conduct of poojas, the respondents herein instituted the suit for the reliefs set out earlier. 3. In the written statement filed by the appellant, he stated that no trust was founded by Parameswaran Nadar. While admitting that 11 items of properties were acquired by Parameswaran Nadar, the appellant disputed that such acquisitions were in favour of any trust. On the other hand, he claimed that Parameswaran Nadar was the absolute owner of the Pathy and the properties. The appellant also claimed that Narayana Perumal Nadar appointed him as his successor to be the absolute owner of the Pathy and that from the date of death of Narayana Perumal Nadar, pursuant to such appointment, the appellant remained in possession of the Pathy as absolute owner from 29.5.1967. According to the appellant, he is the sole owner from the date of death of Narayana Perumal Nadar and that nobody has got any control either over Pathy or the properties. According to the appellant, he was not bound to maintain any account and nobody has got any right to ask him for any accounts and he was also under no obligation to furnish accounts to anyone. It was also claimed by the appellant that his father never kept any account and no question of suppression of account at all would arise. The right of the respondents to interfere in the management of the affairs of the temple and its properties was disputed. There was no right in the respondents, according to the appellant, to ask for the framing of a scheme for Narayanaswamy Pathy. The appellant claimed that after the death of Narayana Perumal Nadar, he had purchased a property and had renewed the building at a cost of Rs.3,000 and also constructed retaining walls by spending Rs.2,500 in addition to collection of materials for renovation of the Pathy valued at Rs.1,500. The appellant claimed that after the death of Narayana Perumal Nadar, he had purchased a property and had renewed the building at a cost of Rs.3,000 and also constructed retaining walls by spending Rs.2,500 in addition to collection of materials for renovation of the Pathy valued at Rs.1,500. Ultimately, the appellant prayed for the dismissal of the suit. The second defendant in the suit filed a written statement supporting the case of the appellant. Defendants 3 to 10 in their written statement supported respondents 1 to 4. 4. On the basis of the aforesaid pleadings, after framing the necessary issues, the learned Subordinate Judge, Nagercoil, on a consideration of the oral as well as the documentary evidence, found that Parameswaran Nadar founded a private family trust and he was not the sole owner of the Pathy or the temple, that Narayana Perumal Nadar was only a trustee as per the Odambadi dated 18.9.1952, that the appellant was appointed as successor by his father Narayana Perumal Nadar, that the appellant had denied the trust and had also repudiated his liability to maintain accounts and, therefore, he deserved to be removed, that the appellant should render an account from the date when he assumed management, namely, 23.1.1967 and that for the proper administration of the trust and its properties, it would be necessary to frame a scheme and that was directed to be done in the course of the final decree proceedings. However, the appellant was allowed to remain in possession of the properties as a Receiver from 24.8.1979, the date of judgment of the Court below, till the framing of a suitable scheme and till the trustees appointed thereunder took charge of the properties and the appellant was also directed to file accounts twice a year. Accordingly, a decree was passed declaring that Kaikkan Pathy Narayanaswamy trust is a private family trust and that a scheme will have to be framed after removing the appellant from management, though as a Receiver he could continue in possession until the framing of a scheme and the appellant, subject to his submitting accounts as a Receiver, was directed to render an account from 23.1.1967. It is the correctness of this decree that is challenged in this appeal. 5. It is the correctness of this decree that is challenged in this appeal. 5. Before proceeding to consider the contentions urged in support of this appeal, it would be necessary to refer to the submission made by the learned Counsel for the respondents with reference to the appointment of the appellant. Consistent with the stand taken by the respondents in their plaint, their learned Counsel submitted that what is contemplated under the terms of the Odambadi is an appointment in writing and in its absence, the appellant cannot claim to have been validly appointed and entered upon his duties as a trustee pursuant to such an appointment. On the other hand, the learned Counsel for the appellant submitted that the right to nominate a successor need not be in writing, but should be only pursuant to Arulvakku, and that having been established, the appellant was properly appointed, though not in writing. 6. Exhibit A-1 is the Odambadi executed by Parameswaran Nadar in favour of Narayana Perumal Nadar. That document shows that the properties dealt with thereunder were given for and on behalf of Kaikkan Pathy Narayanaswamy Vagai. The further recitals therein show that Parameswaran Nadar constructed Kaikkan Pathy Narayanaswamy Chatram and properties were purchased by him in the name of the deity with Thandaper standing in the name of the deity. Reference is also made to the founder performing religious ceremonies and festivals and a desire is expressed that his descendants should continue to perform the same. The document also mentions that the founder not only felt but also had divine sanction for appointing his son as his successor. There are also other conditions in the document that after spending the amount from out of the income from the properties, other properties should be purchased and the properties should not be alienated or encumbered. Clause 11 relates to the nomination of successor. Therein, it is provided that Narayana Perumal Nadar has the right to nominate his successor. It further provides that a document may be executed for future conduct not inconsistent with the conditions already mentioned in Exhibit A-1. A careful reading of clause 11 in its entirety does not require an appointment in writing. Nor such writing is obligatory. To put it differently, it is not as if Narayana Perumal Nadar could not appoint his successor without a document for that purpose. A careful reading of clause 11 in its entirety does not require an appointment in writing. Nor such writing is obligatory. To put it differently, it is not as if Narayana Perumal Nadar could not appoint his successor without a document for that purpose. Clause II in Exhibit A-1, in my view, cannot be interpreted or read as enabling Narayana Perumal Nadar to nominate his successor only by means of a written document. The right to nominate the successor has been conferred under that clause upon Narayana Perumal Nadar even during his lifetime and even the field of choice of persons who can be nominated has been indicated. Even so, it is not stated that the nomination of the successor can be only by writing. The execution of the document has been contemplated not for purposes of appointment as such, but only for future administration and the conduct of the affairs of the temple not inconsistent with the conditions already contained in Exhibit A-1. The appellant examined as D.W.1 has stated that his father duly appointed him as his successor. There is no dispute that the appellant had been in management all these years. The first respondent examined as P.W.1 also stated in his evidence that no objection was raised for the appellant assuming the management of the properties immediately after the death of Narayana Perumal Nadar. Under those circumstances, the contention of the learned Counsel for the respondents that the appellant was not validly appointed cannot be countenanced. 7. The learned Counsel for the appellant contended that no case for the removal of the appellant as trustee and for framing of a Scheme is made out. According to the learned Counsel, the mere circumstance that the appellant had set up title in himself to the suit properties and had disowned his duty to maintain accounts, which was characterised as a petty neglect of duty, would not justify the removal of the appellant from the trusteeship. Reliance in this connection was placed by the learned Counsel upon the decisions in V.K. Kelu v. C.S. Sivarama Pattar V.K. Kelu v. C.S.Sivarama Pattar A.I.R. 1928 Madras 879 and Balmakund v. Nanak Chand Balmakund v. Nanak Chand A.l.R. 1929 Allahabad 433. Reliance in this connection was placed by the learned Counsel upon the decisions in V.K. Kelu v. C.S. Sivarama Pattar V.K. Kelu v. C.S.Sivarama Pattar A.I.R. 1928 Madras 879 and Balmakund v. Nanak Chand Balmakund v. Nanak Chand A.l.R. 1929 Allahabad 433. On the other hand, the learned Counsel for the respondents submitted that the appellant had not only denied the trust character of the properties, but had set up title in himself and had thus rendered himself unfit to be a trustee. It was also further pointed out that the appellant had failed and neglected to maintain proper accounts of the income and expenditure from the trust and its properties and had also violated the terms under Exhibit A-1’ in not having acquired properties from the surplus income. Reference in this connection was also made to the report of the Commissioner showing the income from the properties and from this, it was sought to be established that though the appellant had come by substantial income from to trust properties, he had not acquired at property from out of the surplus income from the trust properties, as directed by Exhibit A-1, and had also not otherwise explained as to what happened to the large surplus income and that would justify the removal of the appellant from trusteeship. The learned Counsel pointed out that the decisions relied upon by the learned Counsel for the appellant would have no application on the facts and circumstances of this case as well as on the terms of Exhibit A-1. 8. Even in paragraph 4 of the written statement, the appellant had denied the existence of the trust. Reference has already been made to the terms Of Exhibit A-1 and they clearly and unmistakably establish that Parameswaran Nadar founded the temple, impressed the properties with the character of trust properties and made arrangements for the conduct of poojas and other festivals and also for the administration and management of the temple as well as its properties. The recitals in Exhibit A-l. clearly establish that Parameswaran Nadar considered himself as the owner of the properties, but on the contrary there is the clear expression of an intention to dedicate the entire property as well as the income for the trust which he had created. The recitals in Exhibit A-l. clearly establish that Parameswaran Nadar considered himself as the owner of the properties, but on the contrary there is the clear expression of an intention to dedicate the entire property as well as the income for the trust which he had created. Thus, from the recitals in Exhibit A-l, it is clear that what was founded by Parameswaran Nadar was a trust and the properties were also not the private properties of the founder, but only trust properties. The Court below, on a consideration of the terms of Exhibit A-l, had recorded a finding to the effect that under Exhibit A-l Parameswaran Nadar has constituted a trust and the properties were also trust properties and its finding has not been challenged before this court by the appellant. In view of that, it follows that the properties belonged only to the trust and not to Parameswaran Nadar or even to Narayana Perumal Nadar. It is in this context the denial of the trust by the appellant in his written statement assumes importance. The appellant had not only disputed the trust founded by Parameswaran Nadar, but had also stated that the properties were the absolute properties of Parameswaran Nadar. In the course of his evidence in Chief-Fxamination, the appellant examined as D.W.1 stated that his grand-father was the owner of these properties and that no trust was ever created at any point of time and further that no trustee was appointed. He had also stated that there was no need for his father and grand-father to maintain accounts and nobody has got any right to ask for accounts. He had also deposed that after his father's death, he got into possession and management and was in enjoyment of the properties for 13 years as one who had that right. A careful consideration of the stand taken by the appellant in his written statement and also his evidence clearly makes out that the appellant had not only repudiated the trust character of the temple and its properties, but had also set up and independent hostile adverse title in his grand-father, his father and himself contrary to the terms of Exhibit A-1. In other words, the appellant had wilfully and without any justification denied the trust and the trust character of the properties belonging to the trust. In other words, the appellant had wilfully and without any justification denied the trust and the trust character of the properties belonging to the trust. Clearly, therefore, the appellant had rendered himself liable to be removed on this short ground. 9. However, the respondents had sought the removal of the appellant on the ground that he had not been maintaining accounts of the income as well as expenditure relating to the trust and its properties. Even here, the stand of the appellant is that he is not bound to maintain any account and nobody has got any right to demand accounts. This stand and attitude of the appellant cannot be justified especially in the face of the terms embodied in Exhibit A-l. As seen earlier, Parameswaran Nadar had not only constituted himself as the first trustee, but also provided for the succession to the office of the trustee and had also laid down certain other terms and conditions upon which the trust and its properties should he administered. Though not specifically stated, it is the plain duty of a trustee to maintain an account of the income from the trust properties as well as the expenditure incurred in connection with the objects of the trust. That duty has to be necessarily performed as part of the administration of the temple and its properties. It would be all the more so in this case where the properties and the income therefrom had been dedicated to a trust and the poojas, festivals, etc. were directed to be celebrated from out of the income from the properties and a direction is given that the balance available has to be set apart as asset and other properties have to be acquired in the name of the deity. If, as a result of an omission on the part of the trustee to maintain accounts, it cannot be found out whether there was any surplus at all which could have been invested in the purchase of other properties, it follows that the trustee is guilty of breach of duty not only in the matter of maintaining accounts, but also in carrying out one of the objects of the trust. In this case, Exhibit C-1, the report submitted by the Commissioner, shows that the annual income from the properties in 1978 was Rs.20,428.50. In this case, Exhibit C-1, the report submitted by the Commissioner, shows that the annual income from the properties in 1978 was Rs.20,428.50. No doubt, some objections were filed by the appellant to the income so arrived at by the Commissioner. On a careful perusal of the objections, it is seen that there is absolutely no substance in them. The stand of the appellant that the income from the trust properties will be Rs.5,500 per year is totally unsupportable. Even assuming that some allowance has to be made with reference to the income arrived at by the Commissioner in Exhibit C-1, taking into account the extent of the coconut garden, cashew garden, paddy fields, etc which form the properties of the trust, the income therefrom could be fixed very modestly at not less than Rs.15,000. The evidence of P.W.I is to the effect that the estimated expenditure would be about Rs.7,000. This is also admitted by D.W.1, though he would state that the estimated expenditure would be Rs.7,500. Even taking the expenditure at Rs.7500 as stated by D.W.I, a balance of Rs.7,500 every year must have been available. I here Is no dispute that the appellant got into management on 23.1.1967 and by the time the suit was instituted, he had been in management at least for 10 years. The surplus that ordinarily should have been available during this period is Rs.75,000. No doubt, some property has been purchased under Exhibit AB-1 dated 24.9.1973. But that is only for a sum of Rs.4,000. In the written statement filed by the appellant, he had stated that the building had been renewed at an expenditure of Rs.3,000, retaining walls had been constructed incurring an expenditure of Rs.2,500 and materials for renovation valued at Rs.1,500 had been secured. In other words, the total expenditure incurred by the appellant in the purchase of the property and in the -renewal of the building, construction of retaining walls, etc. was only Rs.11,000. That should have left a balance of Rs.454,000 in the hands of the appellant and there is nothing to show as to what happened to these amounts. It is in this connection that Exhibits A-8 to A-20 and the evidence of P.W.I assume significance. The appellant had acquired properties under Exhibits A-8 to A-20 in the name of his wife and his many children. It is in this connection that Exhibits A-8 to A-20 and the evidence of P.W.I assume significance. The appellant had acquired properties under Exhibits A-8 to A-20 in the name of his wife and his many children. According to P.W.I, these properties were acquired for Rs.85,000, though they would be worth more. P.W.I is also positive that the appellant could not have acquired the properties under Exhibits A-8 to A-20 from out of the income from his other properties. D.W.I would no doubt say that the properties under Exhibits A-8 to A-20 were acquired from out of income from his other properties. But there is no evidence to show what those other properties were, and whether those properties were productive of sufficient income as to enable the appellant to purchase properties for Rs.85, 000 under Exhibits A-8 to A-20. The non-maintenance of accounts, when viewed in the light of the above facts, would clearly establish the magnitude of the dereliction of duty by the appellant as a trustee. When under the terms of Exhibit A-1, a duty is cast on the trustee to acquire from out of the surplus of the income from the properties of the trust other properties for the benefit of the trust, it behoves the appellant to maintain correct and proper accounts of the income and expenditure; as otherwise; he would be free to deal with the surplus income from the trust properties in any manner he liked and apply it also for the purchase of properties in his own name, as has been done under Exhibits A-8 to A-20. Under those circumstances, the admitted omission on the part of the appellant to maintain accounts has to be viewed seriously and cannot be characterised as a petty neglect of duty. The evidence relating to the income and the available surplus as well as the acquisition of properties by the appellant in the names of himself and other members of his family for a substantial amount clearly make out want of honesty as well as reasonable fidelity on the part of the appellant. It would, therefore, be no longer safe in the interest of the trust estate and also the temple and the welfare of the beneficiaries to allow the management to continue in the hands of the appellant. 10. That leaves for consideration the two decisions relied upon by the learned Counsel for the appellant. It would, therefore, be no longer safe in the interest of the trust estate and also the temple and the welfare of the beneficiaries to allow the management to continue in the hands of the appellant. 10. That leaves for consideration the two decisions relied upon by the learned Counsel for the appellant. V.K. Kelu v. C.S. Sivarama Patter V.K.Kelu v. C.S. Sivarama Patter A.I.R.1928 Madras 879 considered the question whether there was a presumption that a temple in Malabar is either public or private. In that case, the plaintiffs claimed the temple to be a public one, while the defendants stated that it was a private institution in which the public had neither interest nor rights. It was in this context the court was called upon to decide whether the attitude adopted by the defendants amounted to a breach of trust and it was held that there was no denial of the existence of the trust. Such is not the situation in this case. The appellant in his written statement has clearly and categorically denied the very existence of the trust and had set up the exclusive right of his father and himself in the trust properties. There is no question of any private ownership over the temple having been attempted to be set up by the appellant as justifying the denial. That decision cannot, therefore, have any application. Similarly, the decision in Ralmakund v. Nanak Chand Ralmakund v. Nanak Chand A.I.R.1929 Allahabad 433 is of no assistance to the appellant. No doubt, in that case, it was found that the trustee was guilty of neglect of duty in not keeping proper accounts. Even so, that was not held to be an adequate cause for removing the trustee from office. This was because an account book was maintained, but the items of income and expenditure of private property and of the trust property were indiscriminately entered therein. In other words, the only objection was that private accounts and trust accounts had been mixed up and not separately kept and maintained. Therefore, this case cannot have any application to the facts here, where admittedly no accounts had been maintained at all and there is no question, therefore, of any innocent mix-up of private and trust accounts. 11. In other words, the only objection was that private accounts and trust accounts had been mixed up and not separately kept and maintained. Therefore, this case cannot have any application to the facts here, where admittedly no accounts had been maintained at all and there is no question, therefore, of any innocent mix-up of private and trust accounts. 11. A faint attempt was made by the learned Counsel for the appellant to contend that even according to the evidence of P.W.1, the trust is properly administered in the sense that the poojas are being performed and the festivals are conducted and, therefore, no case for the removal of the appellant is made out. It may be that the appellant is carrying out in some measure the objects of the trust. For instance, under clause 3 of Exhibit A-1, feeding with not less than 2 kottas of rice is contemplated. Even if that is carried out with a lesser quantity, that would be performance of the charity, but that can never be in accordance with the objects of the trust. If the appellant had been able to produce the relevant vouchers, account books, etc. with reference to the incurring of expenditure for meeting the objects of the trust in accordance with the directions contained in Exhibit A-1, then, it may be said that the appellant had carried out the objects in the manner contemplated by the founder of the trust, however, in the absence of supporting materials, merely from the statements of either P.W.1 or D.W.1 that the charities are being performed, it cannot be assumed that it is in accordance with the directions given in Exhibit A-l. The appellant cannot, therefore, be permitted to take exception to his removal on the ground that he had been performing the charities as contemplated in Exhibit A-l. The attitude adopted by the appellant towards the trust’ and its properties, namely, his denial of the very existence of the trust and his setting up exclusive title in himself to the trust and its properties and the total omission and neglect on his part to maintain accounts resulting in the breach of the objects of the trust do certainly justify the removal of the appellant as trustee. The Court below was quite right in ordering the removal of the appellant. 12. The Court below was quite right in ordering the removal of the appellant. 12. Lastly, the learned Counsel for the appellant submitted that the claim of the appellant for being appointed as one of the trustees functioning under the Scheme to be framed may at least be considered. The appellant is no doubt a descendant in the family of the founder and would ordinarily be entitled to find a place in the Board of Trustees. That, however, would be a matter for the court below to decide at the time when it considers the question of the appointment of trustees under the scheme to be framed. No direction can, therefore, be given in that regard at this stage. No other point was urged. 13. Thus, on a careful consideration of the facts and circumstances and the evidence, it has to be held that no interference with the judgment and decree of the court below is called for. Consequently, the appeal fails and is dismissed with costs. Appeal dismissed.