P. S. Subramanian v. K. L. Lakshmanan — 1997 DIGILAW 684 (MAD)

Judgment :- 1. This appeal is against the judgment passed by II Additional Subordinate Judge, Madurai in O.S. No. 593 of 1981. 2. The Plaintiff is the appellant. The case of the plaintiff is as follows: The Plaintiff and third defendant N.K. Kuppian are the Trustees of “Srimathi Sakuntala Ammal Estate Trust”. The Plaintiff is the Managing Trustee and third defendant is another Trustee who is an Ex-Officio Trustee. The second defendant was the second trustee. The affairs of “Srimathi Sakuntala Ammal Estate Trust” is thus managed by three Trustees. 3. Late Sakuntala Ammal, wife of Puliyadi S. Rajaramaier, executed a Deed of Trust and Settlement dated 11.3.1940, under which the appointed three Trustees are: a. Puliyadi N.R. Sundararamaier b. K.N.Sr.K. Lankaramaier c. The President of the Sourashtra High School Council Ex-Officio. The three trustees were vested with all the properties and money in the Trust with a direction to administer and manage them; realise all the rent, profits and income and invest and improve the same as they think best; to pay her Rs. 75-00 for maintenance of herself, and her children; Trustees shall endow and devote all the properties that remain at the time of her death. The plaintiffs father P.N.R. Sundara Ramaier, who was the first trustee shall keep and maintain a true and correct account of the Estate. After her death, the first and second trustees then in possession and management shall have the right severally to nominate each his successor. The items of charities to be performed are set out in the Deed as follows: a. To provide sufficient space for the residence of pregnant ladies after delivery; b. To distribute dhoties, towels etc. to poor Saurashtra Students studying in Saurashtra High School: c. To Provide scholarship to those studying for Doctor, Engineer, Spinning and Weaving, dyeing courses or the Trustees were empowered to spend regarding Education as they think fit. So, as per Trust deed dated 11.3.1940 income from the Trust properties have to be utilised for the purposes of Education mainly. The deed is a Registered one and it was acted upon. 4. Sakuntala Ammal died in or about 19.11.1946. So, as per Trust deed dated 11.3.1940 income from the Trust properties have to be utilised for the purposes of Education mainly. The deed is a Registered one and it was acted upon. 4. Sakuntala Ammal died in or about 19.11.1946. After her death the then Trustees without duly giving effect to the intentions of the Donor and contrary to the express desire expressed by the Donor in the deed dated 11.3.1940, the Ist Trustee & Managing Trustee, namely the plaintiffs father and father of the defendants 1 and 2 and then President of the Sourashtra High School Sri N.M.R. Krishnamoorthy brought into existence a deed of declaration of Trust dated 5.12.1963 creating new items of charities to be performed from out of the income of the Trust properties namely;- i) To convert the building in Manjanakara Street, Madurai as a Marriage Hall; ii) Income from the other property has to be utilised for meeting the Marriage Hall; iii) To perform Samaradhanai at an expense of Rs. 400.00 on the death Anniversary of Sakuntala Ammal; iv) To manage the property every 3 years either by the father of the defendants 1 and 2 or by the plaintiffs father-Turn system. v) Trustee to nominate his successor; vi) To put up construction over Manjanakara Street House. 5. Thus by this deed the Trustee deviated and brought into existence new items of charities which were never intended by the founder Sakuntala Ammal. She never intended that a sum of Rs. 400/-to be spent on Anniversary day of her death. She never intended separate management of the Trust properties for a period of 3 years in Turn Trustees System. The deed dated 5.12.63 is thus a new one. The Trustees have no power to bring into existence a new deed. The deed dated 5.12.1963 is therefore not valid and binding upon the Trust and is not an operative document. Sakuntala Ammal Estate Trust has to be administered only by the terms of the Trust deed dated 11.3.1940. 6. In pursuance of the wishes of the donor in the 1940 deed the plaintiffs father P.N.R. Sundararamaier nominated the plaintiff as his successor by his letter dated 16.12.78. P.N.R. Sundararamaier died on 15.7.79. Hence the plaintiff has become Managing Trustee in pursuance of the deed of Trust of 1940. He has been so acting till to-day. 7. K.M. Sr. 6. In pursuance of the wishes of the donor in the 1940 deed the plaintiffs father P.N.R. Sundararamaier nominated the plaintiff as his successor by his letter dated 16.12.78. P.N.R. Sundararamaier died on 15.7.79. Hence the plaintiff has become Managing Trustee in pursuance of the deed of Trust of 1940. He has been so acting till to-day. 7. K.M. Sr. K. Lankaram, the father of defendants 1 and 2, the other trustee died on 20.10.75. By letter dated 7.10.75 the 2nd defendant was nominated as his successor. In the Board Meeting held on 16.11.75 the 2nd defendant was appointed as a 2nd trustee in the place of his father Lankaramaicr. 2nd defendant was put in management on 1st Karthigai, Kalayukthi year 17.11.1978. During this period 2nd defendant with a view to create complications nominated the 1st defendant as 2nd trustee by his letter dated 4.4.1980. The plaintiff and the 3rd defendant expressed protest and declined to recognise the appointment of 1st defendant as a Trustee. The 2nd defendant during his life time has no power to nominate 1st defendant in his place. This is illegal and the 1st defendant is therefore not entitled to assume management. He is not a validly appointed Trustee and has no locus standi to take part in the management of the Trust. 8. Inspite of protest by the plaintiff and 3rd defendant the 1st defendant began to attend the meetings. He began to behave improperly and was not fair towards other trustees. The defendants 1 and 2 wrote a letter dated 25.8.1980 with the legal opinion of Sri. K. Viswanathan, Advocate, Madurai requesting them to send agenda notices. The plaintiff through his advocate Sri. M.V. Rajaram, sent a reply notice dated 24.11.1980 specifically pointing out that the resignation of the office of the Trusteeship by K.L. Jagadeesh 2nd defendant in favour of the 1st defendant is not sustainable and that 2nd defendant cannot nominate 1st defendant in his place. 9. Taking advantage of the turn system for a period of three years, the 2nd defendant and his father lent moneys in the name of his mother Dhanalakshmi Ammal. The records show that by the conduct of the 2nd defendant and by his father heavy loss is caused to the Trust by not collecting interest and waiving it. The Trustees passed a Resolution on 13.10.77 for giving up interest from 17.11.75 to 31.9.1979. The records show that by the conduct of the 2nd defendant and by his father heavy loss is caused to the Trust by not collecting interest and waiving it. The Trustees passed a Resolution on 13.10.77 for giving up interest from 17.11.75 to 31.9.1979. The resolution directing the debtor, namely the defendants 1 and 2s mother to pay interest from 1.10.79 is a heavy loss to the Trust and unlawful gain for their family. K.L. Dhanalakshmi Ammal and her son K.L. Jagadeesh 2nd defendant executed a Promissory Note dated 17.11.1975 in favour of “Sakuntala Ammal Estate” for Rs. 12,191,63 carrying interest at 6% per annum. The rate of interest is very low when the money market was tight and 24% per annum was the ruling rate in the market; charge of interest at 6% per annum is very low. This small interest was also agreed to be given up. Then disputes and difference of opinion arose regarding investment of moneys in Varalakshmi Mills. 10. The plaintiff at once protested their attitude by his letter dated 20.1.81 and pointed out to them that they have no locus standi. On 24.1.81 the 2nd defendant sent a letter not to address any letter to him. The plaintiff by his letter dated 9.4.1981 sent a proper reply. On 8.8.1981 the plaintiff sent a reply pointing out that the defendants have no right to send agenda. The defendants 1 & 2 sent a notice stating that they held a meeting on 11.8.81 and the resolutions were passed that day. The plaintiff states that the meeting held on 11.8.1981 is not a legal and proper one. The proceedings will not bind the plaintiff and 3rd defendant. Defendants 1 and 2 have assumed hostile attitude towards the plaintiff and 3rd defendant. Inspite of the plaintiffs protest that they have no locus standi, they go on sending agenda notices by post. The stand taken by the defendants 1 and 2 that they have validly nominated successor of their father is highly untenable. 11. The 2nd defendant did not execute any of the charities mentioned in 1940 deed inspite of requests of plaintiff and 3rd defendant. The plaintiff has been expressing his dissent for meeting Samaradhanai expenses on the death anniversary of Sakuntala Ammal. This is not at all a charity to be performed. Sakuntala Ammal never expressed desire to perform this charity. 11. The 2nd defendant did not execute any of the charities mentioned in 1940 deed inspite of requests of plaintiff and 3rd defendant. The plaintiff has been expressing his dissent for meeting Samaradhanai expenses on the death anniversary of Sakuntala Ammal. This is not at all a charity to be performed. Sakuntala Ammal never expressed desire to perform this charity. The plaintiff states that it is a waste of Trust money. The expenditure of this item has to be stopped at once. 12. The plaintiff is in possession of original Settlement deed of 1940, and the other documents are in the possession of defendants 1 and 2. They have to be directed to hand them over to the plaintiff. The deed of 1940 specifically states that plaintiff alone shall keep and maintain a true and faithful account of the estate vested in him in respect of all receipts and disbursements. The defendants 1 and 2 are not handing over the documents to the plaintiff inspite of repeated requests. There are respectable persons like K.M.S.L. Sundararaman, cousin brother of K.M.S.K. Kuppusamy Iyer, a charitable and religious minded man or K.M.S.K. Srinivasaier natural brother of Lankaramaier. The plaintiff has no objection to appoint any one of them or any other number of Kobula Family to be a Trustee in the Board of Trustees. 13. Hence the suit is filed for declaration that the 1st defendant is not a validly nominated or appointed Trustee and that 2nd defendant has abandoned his rights as a trustee and consequently for declaring that the deed of trust dated 5.12.63 is not valid and directing defendants 1 and 2 to render a true and correct account of the moneys in their hands and to put in possession of the plaintiff all the records of the Trust in their possession and thus vindicate his private rights. 14. The case of the defendants 1 and 2 is as follows: Sakuntala Ammal was given certain properties under a partition deed known as Family Arrangement dated 17.9.1936. Under law, the arrangement giving properties to Sakuntala Ammal is invalid as the properties are the ancestral properties of K.M. Sr. K. Lankaram Iyer, father of these defendants. 14. The case of the defendants 1 and 2 is as follows: Sakuntala Ammal was given certain properties under a partition deed known as Family Arrangement dated 17.9.1936. Under law, the arrangement giving properties to Sakuntala Ammal is invalid as the properties are the ancestral properties of K.M. Sr. K. Lankaram Iyer, father of these defendants. In any event Sakuntala Ammal had no right or title to dedicate properties given to her as trust property, especially when they are nil joint family properties of these defendants and their father, and inspite of the Trust deed they continued to be the joint family properties of these defendants and their father, because under law, the document executed by Sakuntala Ammal cannot bind the joint family. Anyway since Mr. Lankaram Iyer was of pious nature and a philanthropist, he did not want to question or challenge the trust deed executed by Sakuntala Ammal and therefore when a time arose, after the death of Sakuntala Ammal to reconsider the whole thing, Mr. Lankaram Iyer was instrumental to bring about an additional charitable objects, which as owner of the properties he was entitled to do. A reading of the trust deed executed by Sakuntala Ammal would clearly show that Sakuntala Ammal did not contemplate anybody to be excluded in management of the trust of that P.N.R. Sundararma Iyer, the plaintiffs father should be the managing trustee or that his successors alone should be the managing trustee. It is not known how P.N.R. Sundararama Iyer alone was directed to manage the estate. Since the property is the family property of the joint family of Lankaram Iyer and his sons, Lankarama Iyer had every right to change and add to the charitable objects, in respect of which the income from the properties should be utilised. Further Sakuntala Ammal, at the time of her death, had expressed a desire to change the trust objects which is known to the respectable trustee who were then in management of the Trust. Consequently, in pursuance of the decision of all the three trustees and in accordance with the desire of Sakuntala Ammal at the time of her death, and also because of the fact that it was the joint family properties of Mr. K.M. Lankarama Iyer, it was decided to change the object of the charities and also provide for turn system of management. K.M. Lankarama Iyer, it was decided to change the object of the charities and also provide for turn system of management. Thus, the challenge against the 5.2.1963 document are all futile and without substance, either under law or on fact. In any event, the allegation that Sakuntala Ammal never intended that there should be a change in the management of the trust properties are all meaningless and false and misleading. Even the 1940 document provided that first and second trustee have the right severally to nominate his successor. A trustee right can terminate by resignation, retirement or death. Therefore a trustee in office is always entitled to nominate his successor when he wants to relinquish his office as a trustee. Therefore, the nomination of 1st defendant by the 2nd defendant cannot at all be ignored or said to be in violation of the 1940 document. In fact 1963 document also elaborates the idea mentioning it more specifically that when a trustee relinguishes his office, he can nominate his successor. Thus the attitude of the plaintiff and 3rd defendant, is most unreasonable, unwarranted and unjustified, in not accepting the valid appointment of the 1st defendant as trustee. Thus taking a very unreasonable and hostile attitude, the plaintiff and 3rd defendant have refused to co-operate with the 1st defendant in the matter of administration of the Trust in spite of several notices. The plaintiff cannot take exception to the samarathani expenses because it is in accordance with Sakuntala Animals wishes and also Lakarama Iyer had every right to add to the charities and according to the exigencies of the time and the expenses have been incurred with the concurrence of the trustees and in pursuance of express resolutions to this effect. There is no diversion. The plaintiff cannot insist upon handing over of the document. The trustees have devised a new method of management by 1963 document which has been accepted even in 1961. There is no mismanagement or omission as alleged. So, the plaintiff is not entitled to any declaration as prayed for since the first defendant has been validly appointed as trustee. Declaration (a) is not sustainable as no third party can be appointed either in the place of the second defendant or in the place of the first defendant. There is no mismanagement or omission as alleged. So, the plaintiff is not entitled to any declaration as prayed for since the first defendant has been validly appointed as trustee. Declaration (a) is not sustainable as no third party can be appointed either in the place of the second defendant or in the place of the first defendant. The plaintiff has no right to call upon the first defendant to render account and second defendant, no longer, being a trustee cannot be directed to render any account. This court has no jurisdiction to nominate any one as trustee. Further, there is no vacancy in the post of trusteeship, since the first defendant is holding office validly. The plaintiff is not entitled to any of the reliefs prayed for. 15. The case of the third defendant is as follows:— This defendant does not know personally how the Trust was performed, how the Trustees act, etc., prior to his taking charge of the above office of the council. There is no co-operation and co-ordination between the plaintiff and first and second defendant. All the efforts taken by this defendant to bring about reconciliation and good sense between the plaintiff and the defendants 1 and 2 have not yielded any good result. A suitable decree to promote the interest of the trust may be passed. 16. The trial Court after considering the oral and documentary evidence dismissed the suit. 17. Aggrieved against that judgment and decree, the plaintiff has preferred this appeal. 18. Learned counsel for the appellant contended that the judgment and decree of the lower Court is not sustainable in holding that the suit is barred under Section 92 of the Code of civil Procedure. He further pointed out that the dismissal of the application I.A. No. 418 of 1983 for permission to file an additional statement invoking the provisions of Section 92 of the Code of Civil Procedure operates as res judicata and exhibit A2, trust deed was not brought about with mala fide intention. 19. Learned counsel for the respondent pointed out that this suit is barred under Section 92 of the Code of Civil Procedure Since the leave of the Court was not obtained under Section 92 of the Code of Civil Procedure for filing this suit. 19. Learned counsel for the respondent pointed out that this suit is barred under Section 92 of the Code of Civil Procedure Since the leave of the Court was not obtained under Section 92 of the Code of Civil Procedure for filing this suit. Section 92 of the Code of Civil Procedure reads as follows:— “In the case of any alleged breach of any express or constructive trust created For public purposes of a charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General or two or more persons having an interest in the Trust and having obtained the leave of the Court, may institute a suit, whether contentious or not in the Principal Civil Court of original jurisdiction or in any other Court empowered in that belief by the State Government within the local limits of whose jurisdiction the whole or any part of the subject matter of the Trust is situate to obtain a decree— (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a, trustee, who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allotted to any particular object of the trust; (f) authorising the whole or any part of the trust to be let, sold, mortgaged, or exchanged; (g) settling a scheme and (h) granting such further or other relief as the nature of the case may be required.” 20. Section 92 specifically states that in the case of breach of any express or constructive trust created for public purpose of a charitable or the religious nature, the Advocate General or two or more persons having an interest in the Trust and having obtained the leave of the Court may institute a suit. 21. Section 92 specifically states that in the case of breach of any express or constructive trust created for public purpose of a charitable or the religious nature, the Advocate General or two or more persons having an interest in the Trust and having obtained the leave of the Court may institute a suit. 21. This suit is filed for declaration that the first defendant is not a validly and legally appointed trustee and the second defendant has abandoned his right as the Trustee and for appointment of one fit and charitable minded person of family in the place of first defendant and also to declare that the second trust deed dated 5.12.1963 is illegal and invalid and directing defendants 1 and 2 to render true and correct account of the money. 22. The Trial Court has found that prior permission of Court ought to have been obtained before filing of this suit since this is a suit filed for the administration of the Trust. The counsel for the appellant pointed out that the defendants are acting against the interest of the trust and they are setting hostile title and so the permission of the Court is not necessary for filing the suit. On this he relies upon the decision reported in Bishwanath v. Radha Pallabhji ( AIR 1967 SC 1044 ) in which it has been held as follows: “A suit filed by an idol for declaration of its title and possession of property from a person who is in possession thereof under a void alienation, being only in the nature of enforcement of a private right by the idol and not being for any one of the reliefs found in Section 92 of the Code of Civil Procedure, falls outside its purview and is not barred. When such an alienation has been effected by the shebait acting adversely to the interests of the idol, even a worshiper can file the suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in the worship of the idol can certainly be clothed with an adhoc power of representation to protect its interest. (1878) ILR 3 Bom 27 and (1883) ILR 5 All 497 and AIR 1918 Mad 484 and (1911) ILR 33 All 660(664) and AIR 1917 Mad 112 (FB) and AIR 1934 Pat 584 and AIR 1949 Cal 199, App AIR 1925 PC 139 and AIR 1933 PC 198 (1), Rel. on, AIR 1938 Pat 394 and AIR 1954 Orissa 11 Disapp. To invoke Section 92 of the Code of Civil Procedure three conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust: and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three conditions is not satisfied, the suit falls outside the scope of the said section. The relief in the suit for declaration that a property belongs to the trust is not one of the reliefs enumerated in Section 92 and as such, the provisions of that Section are not attracted. AIR 1928 PC 16; AIR 1952 SC 143 , Foll. Air 1959 Bom 491 , App. In recovering the possession of its property from a person who is in illegal possession thereof, the idol is only enforcing its private right and, therefore, Section 92 of Code of Civil Procedure is not applicable to such a suit instituted by idol for recovery of a property. AIR 1923 All 120 and AIR 1929 Bom, 153, Rel. on.” 23. Relying on the above decision, the Counsel for the appellant argued that Section 92 the CPC is not a bar since the defendants are acting adverse to the interest of the trust. The above decision relates to declaration of title and possession of property from a person in illegal possession. With regard to its maintainability, it has been decided in the above decision that Section 92 of the CPC is no bar and in recovering the possession of its property from a person, who is in illegal possession thereof, the idol is only enforcing the private right and therefore Section 92 of the CPC is not applicable to such a suit, instituted by idol for recovering of a property. The above decision relates to declaration and for possession of property by the idol from a person who is in illegal possession. The above decision relates to declaration and for possession of property by the idol from a person who is in illegal possession. The instant case relates to the declaratory relief with regard to the validity of the appointed trustee, and for appointment of a fit and charitable minded trustee in his place and for rendition of true and correct accounts. So the decision cited above has no application for the present case. This suit clearly falls within the ambit of Section 92 CPC. So leave of the Court is necessary. To invoke Section 92 of the CPC, one of the conditions is that the relief claimed in the suit is one or other of the reliefs enumerated therein. This case clearly falls under the reliefs enumerated under Section 92 CPC. So, leave of the Court instituting a suit is a must. In the instant case, no such permission of the Court was obtained. So, this suit is clearly barred under Section 92 CPC. Hence, the argument of the appellant counsel regarding leave under Section 92 CPC does not hold good. Hence the suit filed without obtaining the leave of the Court under Section 92 CPC is not maintainable. The lower Court has correctly given finding in this aspect. 24. The counsel for the appellant pointed out that petition to receive an additional written statement was filed, with regard to the plea “Bar of suit under Section 92 CPC” and that petition was dismissed and so, that operates as res judicata and it cannot be decided in this suit now. On the question of res judicata he relies upon the decision reported in Satyadivan v. Smt. Deorajan Devi ( AIR 1960 SC 941 ), in which it has been held as follows: “The principles of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. What it says is that once a res judicata, it shall not be adjudged again. Primarily, it applies as between past litigation and future litigation. When a matter —whether on a question of fact or a question of law— has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the mutter again. This principle of res judicata is embodied in relation to suits in Sec. 11 of the Code of Civil Procedure; but even where Sec. 11 does not apply the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original Court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct.” 25. Learned counsel for the appellant argued that the suit is barred by the principle of res judicata because of the passing of order in I.A. No. 418 of 1983. The order passed by the trial Court in I.A. No. 418 of 1983 is perused by me. The defendants filed this Interlocutory application for reception of additional written statement contending that the subject matter of the suit relates to a public trust and the suit with out complying with the provisions of Sec. 92 of the Code of Civil Procedure is incompetent and at least there must be two plaintiffs as minimum and the suit has to be dismissed in limine. In the order passed by the trial Court, the learned Subordinate Judge has found that since the plea raised by the defendants in the additional written statement is on the point of question of law, the Court itself would consider that point and give finding to that effect and that point would be considered suo moto by the Court. In the order passed by the trial Court, the learned Subordinate Judge has found that since the plea raised by the defendants in the additional written statement is on the point of question of law, the Court itself would consider that point and give finding to that effect and that point would be considered suo moto by the Court. The learned Subordinate Judge has further found that there is no necessity to receive the additional statement and the dismissal of the petition for reception of the additional written statement does not in any way affect the right of the defendants and the Court owes its duty to give finding in the judgment with regard to the plea raised by the defendants in the additional written statement since it relates to the question of law and accordingly, the learned Subordinate Judge has dismissed that petition for reception of additional written statement. Since the learned Subordinate Judge has passed the order dismissing that petition with the observation that the point raised in the additional written statement with regard to the question of law would be considered by him in the judgment, it cannot be stated that the dismissal of the petition to receive additional written statement would operate as res judicata for this suit. No finding was given in that order with regard to the point of Sec. 92 CPC. Since the petition was dismissed only with the observation that finding would be given in the judgment with regard to the plea of Sec. 92 CPC raised in the additional written statement, I find that the dismissal of the application does not operate as res judicata for this suit. The counsel for the appellant further pointed out that the defendants 1 and 2 have set up hostile title in respect of the trust property and they are acting adverse to the interest of the trust property and so they are the trespassers in respect of this suit property and so leave u/s 92 C.P.C. is not warranted. The defendants do not dispute with regard to the original trust deed and as the suit relates to administration of trust, the leave of the Court under Section 92 C.P.C. is warranted and the suit is not maintainable. 26. The plaintiff and the third defendant are the trustees of Smt Sakuntal Ammal Estate trust. The defendants do not dispute with regard to the original trust deed and as the suit relates to administration of trust, the leave of the Court under Section 92 C.P.C. is warranted and the suit is not maintainable. 26. The plaintiff and the third defendant are the trustees of Smt Sakuntal Ammal Estate trust. The plaintiff is the managing trustee and the third defendant is another trustee and ex-official trustee. The second defendant was the second trustee So the affairs of Smt. Sakuntala Ammal Estate trust is managed by three Trustees, Smt. Sakuntala Ammal executed a deed of trust and settlement deed dated 11.3.1940, under which three trustees were appointed namely, Puliyadi N.R. Sundararamaier K.M. Sr. K. Lankaramaier, and the President of the Saurashtra High School Council Ex-Officio and the properties and the monies were vested in them with a direction to administer and manage the same. Ex. A1 is the trust and the settlement deed executed by Sakuntala Ammal W/o Puliyadi N.R. Sundararamaier. Under Ex-A1 the trustees were empowered in respect of the properties and money to take possession thereof and manage them realising all the rents, profits and income and invest and improve the same as they think best and they have to be in possession by paying Rs. 75/- per mensem to Smt. Sakuntala Ammal for the maintenance and other expenses during her life time and provide her with necessary amount that she may reasonably require on special occasions from out of the income of the properties. As per Ex-A1, if Sakuntala Ammal had children, the children must be paid the allowance and handover all the properties with the income and accretion to the grand children and they shall have equal and absolute right in the properties and if she had no children, the trustees shall endow and devote all the properties that remained at her death for the charities specified in Sehedule II or at their discretion convert the properties by sale or otherwise into cash and devote them to such charities. The first trustee was asked to keep and maintain true and faithful account of the estate vested in him under Ex-A1. The first trustee was asked to keep and maintain true and faithful account of the estate vested in him under Ex-A1. It is also provided in Ex-A1 that during her life time, Smt. Sakuntala Ammal preserved her right to fill up any vacancy in the trusteeship but after her death, the first and the second trustee or trustees, then in possession and management, shall have the right severally to nominate each his successor. So Ex-A1 clearly states that the trustees shall devote all the properties to the said charities. The right to nominate the successors of each of the trustees is given to the first and second trustees. No right is given under Ex-A1 for execution of further trust deed. Ex-A1 specifically states that the properties and its income should be utilised only for the charity mentioned. Ex-A2 trust deed came into existence on 5.12.1963 by the trustees of Sakuntala Ammal. Ex-A2 provision was made for running Kalyana Mahal and its expenses and for doing Samaradhana at Rs. 400/- and after defraying the expenses, the managing trustee has to keep a sum of Rs. 200/- and the balance amount to be deposited in the bank. The charities to be performed are entirely of different purpose as mentioned under Ex-A2, which does not find place in Ex-A1. The counsel for the appellant pointed out that the trustees have no power to bring into existence a new deed and so the deed dated 5.12.1963 is not valid and binding upon the trust and is not an operative document. The counsel for the respondent pointed out that only for trust purpose Ex-A2 was created and only as it relates to charitable matters, Ex-A2 is a valid document. On a persual of Ex-A1 it is seen that the trustees have no power at all to execute any further trust deed. The trustees have to carry out the instructions of Smt. Sakuntala Ammal as recited in Ex-A1. The trustees are not vested with any power to execute any further trust deed. So Ex-A2 cannot be construed as a valid document. Accordingly, it is held that Ex-A2 is not true and valid. 27. The trustees have to carry out the instructions of Smt. Sakuntala Ammal as recited in Ex-A1. The trustees are not vested with any power to execute any further trust deed. So Ex-A2 cannot be construed as a valid document. Accordingly, it is held that Ex-A2 is not true and valid. 27. According to the plaintiff the second defendant has nominated the first defendant as a trustee and it is not a valid nomination, and by appointing a trustee the second defendant has abandoned his right as a trustee and the nomination of the first defendant as a trustee by the second defendant is not valid. In Exhibit A1, trust deed, it has been recited by Sakuntala Ammal that after her death, the first and second trustees or trustee/s then in possession and management shall have the right severally to nominate each of his successor. The trustees were given the right to nominate their successor. There is no recital that only after the life time of the trustees, their successors should be appointed. The trustees were given right to nominate each of their successor. So, as per the Trust Deed Ex. A1 only the trustees have got the right to nominate each of their successor. So, it cannot be stated that the second defendant had no right to nominate his successor. 28. PW1 speaks in his evidence that father of defendants 1 and 2 had lent a sum of Rs. 12,000/- to his wife. In support of that, he has filed an Audit Report exhibit A3. PW2 further states that with regard to Exhibit A4, Pronote, that amount was borrowed by the second defendant and his mother from the Trust and DW1 also admits in his evidence that his mother and the second defendant have jointly executed a pronote in favour of the trust. Exhibit A5 and A6 are the minute books. Exhibit B1 also shows that previously also, pronote was executed by the previous trustees from the income of the trust. Even in that pronote, the rate of interest is mentioned at 6%. So, it cannot be stated that the creation of those pronotes is to the detrimental of the charity. There is no acceptable evidence to prove that the defendants are acting detrimental to the interest of the charity. 29. Thus, the finding of the lower Court is perfectly in order. In the result, the appeal is dismissed. So, it cannot be stated that the creation of those pronotes is to the detrimental of the charity. There is no acceptable evidence to prove that the defendants are acting detrimental to the interest of the charity. 29. Thus, the finding of the lower Court is perfectly in order. In the result, the appeal is dismissed. Consequently, C.M.P. No. 685 of 1995 is dismissed. No Costs.