G. K. Perumal v. Senniappa Chettair — 1990 DIGILAW 753 (MAD)

Judgment :- Defendants 4 and 5 in O.S. No. 76242 of 1981 on the file of the Sub Judge, Gobichettipalayam are the appellants. The appeals are against the common order of Abdual Hadi, J. in C.M.P. Nos. 9999 of 1989 in A.S No, 606 of 1989, C.M.P. No. 10967 of 1989 in A.S. No. 859242 of 1989 and C.M.P.No 7960 of 1989 in A.S. No. 606242 of 1989 respectively. The respondents filed the suit O.S. No. 76242 of 1981 for entrusting the managment of the suit trust to defendants 1 to 3 or for appointing new trustees and for setting a scheme For the effective and proper managment of the trust. One, N. Palaniap-pa Chettiar owned considerable properties in and around Gobichttipalayam. His wire was Chinnammal alias Rengammal. They had no children. Palaniappa Chettiar executed a will on 15-7-1931 which clearly shows his philanthropic attitude and charitable disposition. Talanippa had carried on money lending business in the name of his wife, benami for his Own benefit. Therefore, properties came to be purchased in her name as well. On 27-9-1968 both Palaniappa and his wife executed a will in respect of all their properties. The main aim was to create a trust and provide for the administration of the charities named in the trust. The plaint also says that the appellants (defendants 4 and 5) were putting forward a will said to have been executed by the wife Rengammal on 27-11-1980 after the death of her husband. Palaniappa died on 5-10-1969 and his wife died on 24-12-1980. According to the plaint allegations, the appelants who are strangers to the family had influenced Rengammal to execute the will dated 27-11-1980 which is totally in derogation of the trust contempalated by Palaniappa. The appellants are the beneficiaries under the will dated 27-11-1980 Defendants 6 to 13 had purchased certain properties from Rengammal. The appellants had also sold certain properties after the death of Rengammal. Pending disposal of the suit, the respondents filed I.A. No. 196 of 1981 for the appointment of a Receiver to take charge of the suit properties. In the application, it is alleged that the appellants were making frantic attempts to sell all the properties and appopriate as much as possible. With a view to preserve the suit properties and prevent waste and deterioration of the properties, it was alleged that a Receiver was necessary. 2. In the application, it is alleged that the appellants were making frantic attempts to sell all the properties and appopriate as much as possible. With a view to preserve the suit properties and prevent waste and deterioration of the properties, it was alleged that a Receiver was necessary. 2. The appellants filed a written statement disputing the maintainability of the suit and denying the allegation that Rengammal held properties benami and the real owner was Palaniappa. It was contended that the will dated 27-9-1968 did not create a trust. It did not satisfy Section 6 of the Indian Trust Act. After the death of Palaiappa, his wife Rengammal succeeeded to all the properties. She had sold certain properties in the interest of the estate. She was residing in Door No. 15, Kuppaiyar Street, Gobichettipalayam till her death. After her death, the appellants, executors of her will dated 27-11-1980 are residing in the said Door No. 15. They are said to administering the entire estate. It is also admitted that the appellants had sold certain properties. It is also claimed that the first appellant had purchased certain properties from Renagammal and had improved the same. So far as the application for appointment of Receiver is concerned, it was contended that the appellants being possession under the will dated 27-11-1980 the respondents cannot seek to dispossess them by appointing a Receiver. 3. The trial court dismissed the application I.A. No. 196 of 1981. On appeal, the said order was confirmed in C.M.A. No. 27242 of 1982. The respondents filed CR.P.No 1232 of 1983 and by an order dated 19-12-1986, Sathiadev, J. apponited the first appellant (4th defendant) as party Receiver in respect of the suit properties in the possession of the appellants. The first” appellant was directed to file accounts and furnish copies to the respondents. Defendants 6 to 13 were injuncted from alienating the prop erties in their possession. The first” appellant was directed to file accounts and furnish copies to the respondents. Defendants 6 to 13 were injuncted from alienating the prop erties in their possession. The following observations of Sathiadev, J. are relevant: “Therefore, when one of the main points involved in the suit is, how for the later will would be valid and binding in spite of during the life time of husband and wife they having expressed their intention that the properties should be given away to charitable purposes; this Court considers that, unless and until the truth and validity of the will dated 27-11-1980 is decided in the suit it would not be proper to appoint an Advocate Receiver, and thereby dispossess some of the defendants, who have purchased the properties from Chinnammal herself. A few items have been sold by defendants 4 and 5 based on Exhibit B-109. In the event of Exhibit B-109 being upheld the dispossession during the pendency of the suit would cause considerable hardship to alienees defendants.” 4. The suit was dismissed on 2-2-1989. But the findings on the various issues have a bearing on the present Letters Patent Appeals. The trial Court held that the will said to have been executed by Rengammal on 27-11-1980 and marked as Exhibit B-109 was not true, that the same was not executed by Rengammal in sound disposing state of mind and that the alienations by Rengammal to and in favour of the first appellant and certain other are not valid and therefore, not binding on the respondents (plaintiffs). The Court also held that the will dated 27-9-1968 executed by Palaniappa and Rengammal was not irrevocable and that it was a joint will. It was also held that there was no creation of a Trust in respect of the balance of properties remaining on the death of both Palaniappa and Rengammal. One other significant finding is that the properties in the name of Rengammal are her own properties and not benami for the benefit of Palaniappa. On these findings A.S. No. 606 of 1989 has been filed by the appellants challenging the finding that Exhibit B. 109, the will dated 27-11-1980 by Rengammal is not true and valid. A.S.No 851 of 1989 has been filed by the respondents against the dismissal of the suit. On these findings A.S. No. 606 of 1989 has been filed by the appellants challenging the finding that Exhibit B. 109, the will dated 27-11-1980 by Rengammal is not true and valid. A.S.No 851 of 1989 has been filed by the respondents against the dismissal of the suit. C.M.P. No. 7960 of 1989 was filed by the appellants in A.S. No. 606242 of 1989 for “the continuance of the appointment of the 4th defendant/petitioner as receiver appointed pursuant to the order this Honble Court dated 19-12-1986”. C.M.P.No 7959 of 1989 filed by the appellants was for staying the findings of th e Trial Court on the will dated27-ll-1980. C.M.P. No. 10242%7 of 1989 in A.S.No 851 of 1989 was filed by the respondents to appoint an Advocate receiver in respect of the properties described in the schedule to the petition. One other fact which has to be noted before considering the rival submissions is the order passed in the Receiver accounts on 2-2-1989, on the date of dismissal of the suit stating that there were no irregularities in the expenses and that the accounts are accepted and the party Receiver discharged. 5. The learned Judge who heard the C.M.Ps. together, by an order dated 17-1-1990 held that it is just and convenient to appoint a third party Advocate Receiver to all the properties execpt those sold to first appellant (4th defenant) by Rengammal under Exhibits A-28 and A-29 it is against the said judgment of Abdul Hadi, J. that the Letters Patent Appeals have been filed, as already incicated. 6. In short, the whole question is whether the first appellant (4th defendant) should be continued as party Receiver as contended by the appellants or should be replaced by an Advocate Receiver as contended by the respondents. Learned Senior Counsel Mr. G. Subramaniam appearing for the appellants submits that there are two categories or properties, one in the name of Palaniappa and the other which stood in the name of Rangammal. He also says all the properties are in the possession and adminaistration of the appellants Except Door No. 15 Kuppaiyar Street, Gobichettipalayam all the other properties are in the possession of tenants or defendants 6 to 13. He also says all the properties are in the possession and adminaistration of the appellants Except Door No. 15 Kuppaiyar Street, Gobichettipalayam all the other properties are in the possession of tenants or defendants 6 to 13. The learned counsel relies very much on the judgment of Sathiadev, J. in C.R.P. No. 1232242 of 1983 and says that the same circumstances prevail because the findings in O.S No. 76 of 1981 are challenged in both the appeals 606 and 851 of 1989. Secondly, the accounts filed by the Party Receiver were accepted by the Trial Court and the Receiver discharged on 2-2-1989. Thirdly, the conduct of the Party Receiver can be assessed only for the period of his Office as Receiver i.e., after 19-12-1986. Fourthly, the first appellant had not sold any properties as alleged, but he had only entered into certain agreements of sale and that the said agreements of sale also have been sub-seqently cancelled. Fifthly, it is argued, that the period of receiver ship the respondents had not filed any petition for removal or the 1st appellant signifying the good administration on the part of the 1st appelant. Lastly the conduct prior to 19-12-1986 when the 1st appellant was appointed as receiver should not be taken note of inasmuch as the order of Sathiadev, J. was made notwithstanding his earlier dealings with the suit properties. 7. As against this learned Senior Counsel Mr. M.R. Narayanasami places reliance on the following points in support of his claim for the appointment of an advocate receiver. (1) The circumstances that prevailed when Sathiadev, J. appointed the first appeallant as party receiver have changed to a large extent after the disposal of the suit; (2) In much as Ex. B.109 has been found to be not true and invalid, the previous will dated 27-1-1968 (Ex. (1) The circumstances that prevailed when Sathiadev, J. appointed the first appeallant as party receiver have changed to a large extent after the disposal of the suit; (2) In much as Ex. B.109 has been found to be not true and invalid, the previous will dated 27-1-1968 (Ex. A-5) become operative: (3) Prima facie, therefore, the properties are Trust properties and they should be safeguarded; (4) The suit was filed after getting sanction under Section 92 of the Civil Procedure Code and in a representative capacity and the main relief is for framing a scheme under the will dated 27-1-1968 (Ex..A-5) (5) The conduct of the 1st appellant from the beginning should be assessed before continuing him as receiver; (6) The trial Court did not consider the objections of the respondents on the several accounts filed by the 1st appellant and its order is perfunctory. A perusal of the accounts shows that prima facie, the 1st appellant has not shown any income from the large extent of properties. 8. After considering the rival submissions, we are inclined to affirm the order of the learned Judge with a small modification. We are clearly of the opinion that the circumstances which prevailed on the date of the order of Sathiadev, J. are no longer present now. We have the advantage of the findings of the trial Court. Even though the findings are subject to the appeals preferred by both parties, for a prima facie consideration, we have advanced one step further than the stage of the order of Sathiadev,!. The finding that Ex. B.109 will dated 27-11-1980 is not true and genuine removes the appellants far away from properties. The finding on the interpretation of the will dated 27-1-1968 (Ex. A-5) regarding the creation of a Trust, is purely a question of law and the same will not improve the claims of the appellants over the properties. We do appreciate that the appellants may be able to convince this Court ultimately that Ex. B-109 is true and valid. But the question is till then should he be allowed to continue as Receiver. We do not accept the argument that the conduct prior to the order of Sathiadev, J. should not be taken note of. We are concerned with the question whether properties will be protected and improved in the hands of the appellants especially after the findings of the trial Court. We do not accept the argument that the conduct prior to the order of Sathiadev, J. should not be taken note of. We are concerned with the question whether properties will be protected and improved in the hands of the appellants especially after the findings of the trial Court. Therefore, we cannot but take note of the earlier conduct of the 1st appellant in trying to alienate the properties. Turning now to the accounts filed by the 1st appellant, we see that the respondents have raised objection to all the accounts. We have been taken through the accounts and it is pointed out that no income is shown from the lands and a loan has been incurred and interestpaid thereon periodically without any necessity. The order of the trial court dated 2-2-1989 is really perfunctory because the objections had not been considered. The learned Judge only says that there is no irregularity in the expenses. The Court has not considered as to why no income from the landed properties had brought into account. Learned Counsel for the respondents rightly says that even if the Trust as created by the Will dated 27-1-1968 (ExA-5) does not come into force, the doctrine of cypres as contemplated in Section 92 (3), C.P.C will come into operation. The explanation of the learned Counsel for the Appellants that most of the properties are subject matter of litigation and proceedings under the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act cannot be a reason for not showing any income from the landed properties, which are nearly 100 acres. The respondents also draw our attention to their allegation in pare 14 (v) of the counter affidavit in C.M.P. Nos. 7959 and 7660 of 1989 which runs as follows:— “But, however, now it is a matter of fact that the petitioners 1 and 2 have submitted statement of accounts for a period of 11/2 years. This petitioner has filed his objections also. Those accounts would clearly show as to how the 1st respondent has been dealing with the properties and unjustly enriched himself and filed false accounts before the Court” 9. Learned counsel for the appellants referred t6 Rules 101 to 105 of the Civil Rules of Practice and contended that the 1st appellant has scrupulously followed the Rules ana does not deserve to be replaced by an advocate receiver. Learned counsel for the appellants referred t6 Rules 101 to 105 of the Civil Rules of Practice and contended that the 1st appellant has scrupulously followed the Rules ana does not deserve to be replaced by an advocate receiver. On the other hand, Rule 103 which quoted below, shows that the Trial Courts Order dated 2-2-1989 is prima facie contrary to the rules. “Rule 1 03. Passing of accounts by Court On the adjourned hearing the Court shall consider the objections and surcharges made, and determine the amount due” 10. The argument based on Sub-rule (2) of Order 40 Rule 1 C.P.C. and the judgement in Hiralan Patni v. Loonkaram Sethiya and Others 1 does not in any way advance the case of the 1st appellant. We therefore inclined to agree with Abdul Hadi, J. that it is just and convenient to appoint a third-party advocate receiver to be in charge of the properties, pending disposal of the Appeal. Learned Counsel for the respondents fairly concedes that the appellants need not be dispossessed of the property in their occupation in Door No. 15, Kuppaiyar Street, Therefore in addition to the properties sold to appellants under Exhibits A-28 and A-29 the property bearing Door No. 15, Kuppaiyar Street, Gobichettipalayam shall be omitted and the Advocate Receiver to be appointed as per learned Judges order, shall take possession of only the other properties. In all other respects, we confirm the order of the learned Judge. The appeals are dismissed with the above modification. There will be no order as to costs.