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2015 DIGILAW 1726 (MAD)

Singaravelu Udayar (Died) v. Balagurusamy

2015-03-31

PUSHPA SATHYANARAYANA

body2015
Order 1. C.R.P.NPD (MD)No.2753 of 2012 is filed against the order passed in I.A.No.34 of 2001 dated 7/12/2012 by the respondents 2, 3 and 4. C.R.P. NPD (MD)No.165 of 2013 is filed by the second petitioner in I.A.No.34 of 2001. 2. The dispute is regarding the Management of a School in Mannargudi known as National Higher Secondary School which was founded by one S.Ramadurai Iyer and T.S.Singara Velu Udaiyar in the year 1899. As there had been some dispute in the family of the Udaiyar which culminated into a partition suit in O.S.No.22 of 1924 on the file of the Principal Sub-Court, Kumbakonam, a preliminary decree on 25/10/1924 and final decree on 26/9/1932 were passed. The decree also included a scheme for managing the said School. 3. As per the scheme framed, the Management of the School was to be done by rotation between Udaiyar and Iyer family. The Udaiyar family was given ten years and the Iyer family was given ten years period for the Management of the School. The said Singaravelu Udayar family consisted of five branches, viz., (i) Ramabadhra Udayar branch (ii) Gopalasamy Udayar branch (iii) Balagurusamy Udayar branch (iv) Swaminatha Udayar branch and (v) Balakrishna Udayar branch 4. As per the original scheme, the eldest male member of Ramadurai Iyer family will be in Management for ten years and similarly, the eldest male member of Thanneer Kunnam Udaiyar family will represent the Board of Management for ten years. T.S.Swaminatha Udaiyar, the eldest male member of Udayar family, continued as Secretary and Correspondent for a period from 1952 to 1958. 5. When the Iyer family's turn had come for the Management, in spite of the request of the Iyer family to hand over the Management in respect of the School, the Udaiyar family refused to do so. As the dispute arose, there was a modification in their earlier scheme in and by which it was agreed that 19/30 shares would come to Iyer family and 11/30 shares would go to Udaiyar family. The period of Management was reduced to three years for each of the family by rotation. 6. After the amendment of the scheme, T.S.Swaminatha Udaiyar, who was the eldest member of Thaneer Kunnam family, took up the Management on 1/8/1987 and continued till 1999 till his death. After his death, the dispute arose as to who is the eldest male member of the Udaiyar family. 6. After the amendment of the scheme, T.S.Swaminatha Udaiyar, who was the eldest member of Thaneer Kunnam family, took up the Management on 1/8/1987 and continued till 1999 till his death. After his death, the dispute arose as to who is the eldest male member of the Udaiyar family. One T.V.Singara Velu Udaiyar, who was the first petitioner {in C.R.P.NPD (MD) No.165 of 2013} filed I.A.No.34 of 2001 on the file of the Sub-Court, Kumbakonam, claiming that he was entitled to represent the Udaiyar family in the Management of the School. Pending application, he also died and his brother T.B.Ramanathan, who is the second petitioner in I.A., continued with the proceedings. 7. In the meanwhile, as the dispute was yet to be resolved among the members of the Udaiyar family, the District Educational Officer, directed the Iyer family to continue as Secretary and Correspondent till the dispute is resolved. Accordingly, from 16/10/2001 to 15/10/2004, V.Srinivasan of the Iyer family was continued as Secretary and Correspondent which was not challenged by any one though the said period was not the turn of the Iyer family. When the original turn of the Iyer family started on 16/10/2004, the said V.Srinivasan himself continued till his death on 22/11/2005. As the dispute that arose among the members of the Udaiyar family had not yet been resolved, the Joint Director of School Education approved the third respondent viz., T.S.Rajagopalan as the educational agency from 1/8/2007 for a period of three years. 8. The petitioner in I.A.No.34 of 2001 had contended that T.S.Swaminatha Udaiyar was his elder brother and he went in adoption to their senior paternal grandfather viz., T.S.Singaravelu Udaiyar, who was the original co-founder of the School. Therefore, T.S.Swaminatha Udaiyar is the direct representative of T.S.Singaravelu branch. 9. The second respondent is the son of T.S.Swaminatha Udaiyar and the third and fourth respondents are the step sons of T.S.Swaminatha Udaiyar. As per the scheme decree, each of the branch was permitted to be in Management for a definite period in rotation for ten years. While so, it is stated that T.S.Swaminatha Udaiyar obtained sale deeds from the other three branches in his favour on 11/7/1952. Now, the branch of T.S.Swaminatha Udayar claiming to be the only family belonging to Thanneer Kunnam Udaiyar family. While so, it is stated that T.S.Swaminatha Udaiyar obtained sale deeds from the other three branches in his favour on 11/7/1952. Now, the branch of T.S.Swaminatha Udayar claiming to be the only family belonging to Thanneer Kunnam Udaiyar family. According to the petitioner, though only a nominal sum of Rs.1,000/- was mentioned as sale consideration, no such consideration was actually passed. As the said T.S.Swaminatha Udaiyar was a senior most in the family, out of reverence and respect, for the sake of smooth running of the School, the sale deeds were executed. Hence according to the petitioners, it was not a real transaction and it was only a sham and nominal. 10. The contention of the respondents 2 to 4 in I.A.No.34 of 2001 is that their father T.S.Swaminathan having purchased the rights of the three branches claimed to be the only heirs of Thanneer Kunnam Udaiyar family. 11. Therefore, the only question that has to be decided in these Civil Revision Petitions is who are the persons belonging to the Thanneer Kunnam Udaiyar family which is entitled to manage the School. 12. Before considering the said question, the earlier proceedings with respect to the same parties and with respect to the Management of the School can be usefully looked into. 13. In C.R.P.NPD (MD) No.152 of 1998 dated 7/7/1988, the Iyer family and the Udaiyar family had entered into a compromise in amending the Scheme Decree passed earlier. As per the said compromise, the eldest male member of the Thanneer Kunnam Udaiyar family shall be the member of the Board. If he is unwilling or incapacitated, the next in line shall become the Management of the Board, representing the Thanneer Kunnam Udaiyar family. 14. Pursuant to the said amendment, the eldest male member of the Ramadurai Iyer family and the eldest male member of the Thanneer Kunnam Udaiyar family are entitled to represent the Management and three co-opted members who would be (I) a member nominated by Ramadurai family (ii) A member nominated by Thanneer Kunnam family or (iii) a member nominated by both the families. If there is no consensus in nominating the three co-opted member as per Clause 3, he shall be appointed by Court. 15. If there is no consensus in nominating the three co-opted member as per Clause 3, he shall be appointed by Court. 15. Mr.G.R.Swaminathan, learned counsel, appearing for the petitioners in C.R.P.NPD (MD) No.2753 of 2012 had contended as follows:- (i) There was a partition on 26/9/1932 in which a final decree was also passed. After the final decree, it is only Swaminatha Udaiyar, who is entitled to the Management of the School. (ii) Secondly, it was contended that post 1952, Swaminatha Udaiyar only contested all the legal proceedings and the compromise was entered into pursuant to which the scheme decree was also amended. (iii) The third contention was that in the year 1952, there was a sale and the first petitioner was a party to the sale deed. Hence he is estopped from challenging the same. (iv) The next contention was that the 1952 sale documents are genuine even as per the finding of the scheme decree. Hence equity has no role to play. 16. The learned counsel, who appeared for the petitioner in C.R.P.NPD (MD) No.165 of 2013 in turn contended that the sale deed dated 11/7/1952 will not enlarge the right of Swaminatha Udaiyar in the Management of the School to the exclusion of the other three branches. Therefore, the revision petitioners in this petition cannot be said to be dis-entitled to seek Management of the School, as per the Scheme decree. 17. Mr.V.K.Vijayaraghavan, learned counsel appearing for the petitioner in C.R.P.NPD (MD) No.165 of 2013 contended that the revision petitioners are also the members of Thanneer Kunnam Udaiyar family and as on date, Ramanathan Udayar is the eldest member of the family. As per the scheme, only the eldest member of the Thanneer Kunnam family can be in Management of the School. 18. The question now is whether the sale deed dated 11/7/1952 under Ex.B.1 executed by Singaravelu Udaiyar, who is the first petitioner in I.A.No.34 of 2001 had given up the right of Management under the same. 18A. The learned counsel Mr.V.K.Vijayaraghagan contended that Saminatha Udayar's family alone cannot claim independent right on the basis of sale deeds giving a go by to the scheme decree. It was contended that the sale deeds were sham and nominal. If the sale deeds were intended to be acted upon subsequently, scheme decree would have been amended. 18A. The learned counsel Mr.V.K.Vijayaraghagan contended that Saminatha Udayar's family alone cannot claim independent right on the basis of sale deeds giving a go by to the scheme decree. It was contended that the sale deeds were sham and nominal. If the sale deeds were intended to be acted upon subsequently, scheme decree would have been amended. When the sale deeds are of the year 1952 no action was taken by T.S.Saminatha Udayar for amending the scheme. The counsel also pointed out that such sale is also prohibited by the scheme decree. The act of Saminatha Udayar not amending the scheme pursuant to the sale deed dated 11/7/1952 only goes to show that the compromise dated 7/7/1988 intended to benefit the Thanneer Kunnam Udayar family and not Saminatha Udayar family alone. If the sale deeds were contended to be acted upon then the compromise dated 7/7/1988 would have found a mention about the same. 19. The learned counsel also placed his reliance in this regard on R. Venugopala Naidu and others vs. Venkatarayulu Naidu Charities and others, 1989 Supp (2) SCC 356 wherein in paragraph 9, it has been stated as follows:- "The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of public rights in the public trusts and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit- title in that event would shown only their names as plaintiffs. Can we say that the persons whose names are on the suit-title are the only parties to the suit? The answer would be in the negative. The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eye of law to be parties to the suit. A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. A suit under Section 92 of the Code is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. It is for that reasons that Explanation VI to Section 11 of the Code constructively bars by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code." 20. Reliance was also placed on Baba Suraj Gir and Others vs. B. Bramh Narain Advocate and Others, AIR (33) 1946 Allahabad 148 wherein it has been observed and held as follows:- "No doubt in a proper case it would be possible to vary a scheme validly framed under S.92 or even to rule it out of existence altogether and to make a new one. But that can be done only under the section under which it originally came into existence and by an application of some kind or other made to the Court that originally sanctioned the scheme and not by a suit filed in another Court. A scheme framed under S.92 is binding on every one (whether a worshipper or not) including even one who might have claimed an hereditary trustee-ship and have brought a suit to enforce such a right before the settlement of the scheme. A decree framing a scheme is bar to a suit by such a person, even though the denial of such a right of suit might act prejudically to his interest and even though his application to be made a party to the suit in which the scheme was framed had previously been rejected. His remedy is to assert his right by taking proper steps in the Court which has seizin of the scheme. He cannot raise in another Court a claim which is inconsistent with and hostile to the scheme. In determining whether the plaintiff is seeking to vary or set aside scheme substance of the claim must be looked at." 21. The trial Court had upheld the sale. However, it is not binding on the second petitioner. It is the contention of the petitioner that in the year 1952, Swaminatha Udaiyar got the sale executed in his favour from the other three branches. The trial Court had upheld the sale. However, it is not binding on the second petitioner. It is the contention of the petitioner that in the year 1952, Swaminatha Udaiyar got the sale executed in his favour from the other three branches. During the relevant time, as a senior member of Balagurusamy Udaiyar branch, the first petitioner had been included in the sale deed. According to the first petitioner, the sale deed was only sham and nominal and the sale price was only Rs.1,000/- and there is no legal sanctity for the same. Besides, the other members of the family had not signed the sale deed. As the other members of the family including the second petitioner viz., T.B.Ramanathan had not joined in execution of the sale deed even presuming that the sale is valid, it will not bind the other members especially the second petitioner. 22. Admittedly, no action had been taken by the first and second petitioners for setting aside the sale within three years from the date of execution or within three years from the date of attaining majority. In fact, the other branch viz., Gopalsamy Udaiyar branch had given up their right of Management under rotation in favour of T.S.Swaminatha Udaiyar. However, this Court feels that it is not necessary to go into the validity of the sale deeds as the same had been upheld in the earlier proceedings between the parties. Therefore, it is unnecessary to discuss the same. 23. Nevertheless, whether the petitioner can claim right despite the fact that they had given up the same by executing the sale deed. While so, to establish the right to prove that they are the eldest male member of Thanneer Kunnam Udaiyar family, it was argued by the learned counsel for the petitioner that the respondent Nos.3 and 4 viz., T.S.Rajagopalan and T.S.Sridhar are not the children born to T.S.Saminatha Udaiyar through the first wife. 24. It is their contention that the mother of the respondents 3 and 4 was living with T.S.Saminatha Udaiyar not as the legally wedded wife. However, it is established by them that they were born even before 1942 and also before 1949 before coming into force of Bigamy Act. Hence the objection that they are not the legal heirs of T.S.Swaminatha Udaiyar was also rejected by the trial Court. 25. However, it is established by them that they were born even before 1942 and also before 1949 before coming into force of Bigamy Act. Hence the objection that they are not the legal heirs of T.S.Swaminatha Udaiyar was also rejected by the trial Court. 25. The next ground of attack by the petitioners' counsel is that once validity of Ex.B.1 is upheld, no right can be conferred upon the second petitioner for the Management of the School. In this regard, it is worthwhile to refer to the memo of compromise in C.R.P.NPD (MD) No.152 of 1998. The said compromise is only between one member of Iyer family and T.S.Swaminatha Udaiyar as Udaiyar's family. In the said compromise, it is categorically admitted that the eldest member of Thanneer Kunnam Udaiyar family shall be the member of the Board. If he is unwilling or incapacitated from acting, the next member in line shall become the member of the Board and it was further agreed that the member belonging to Udaiyar and Iyer family shall hold the office of the Secretary and Correspondent alternatively by rotation for a period of three years each. 26. This was assailed by the petitioners' counsel contending that the said turn system of Management among the five branches of Udaiyar family was given up even as on date of sale on 11/7/1952. Therefore, the rotation system among the Udaiyar family was not acted upon by the Udaiyar family after 1952. In this regard, the order passed in W.P.No.12724 of 2011 dated 11/8/2011 is relevant. “For the foregoing reasons, the impugned order passed by the first respondent stands set aside. The Scheme Court, viz., in I.A.No.34 of 2001 in O.S.No.22 of 1924, along with the scheme decree as modified by consent in C.R.P.No.152 of 1988 and pass appropriate orders in the interlocutory application. The scheme Court is also directed to work out equity taking note of the consent decree between the parties by giving opportunity to both the parties and such order shall be passed by the Scheme Court within a period of six months from the date of receipt of a copy of this order. The scheme Court is also directed to work out equity taking note of the consent decree between the parties by giving opportunity to both the parties and such order shall be passed by the Scheme Court within a period of six months from the date of receipt of a copy of this order. Till such orders are passed by the Scheme Court, the first respondent is directed to pass appropriate orders as per the provisions of the Tamil Nadu Recognised Private Schools (Regulation) Act enforcing the direct payment of salaries to the teachers, since admittedly the school in respect of which the administration is in dispute is an aided private school. It is also made clear that till such orders are passed by the Scheme Court, the first respondent shall be in-charge of administration of the School without taking any policy decision which may affect the very basis of the decree, since basically the institution is run by concerted action of both the parties.” 27. As this Court had directed to pass orders on the basis of equity, the trial Court had taken into consideration the period prior to 1/8/1987 also in deciding the period of rotation. 28. The contention of the revision petitioners is that as per the order passed in C.R.P.No.152 of 1988, only the Iyer family and the family of T.S.Swaminatha Udaiyar alone have got the right of Management by turn system for three years each and the petitioners got no right at all having given up their right of Management by way of sale. According to the petitioner, in C.R.P.No.165/13, the Management of School is not a property and therefore, it is in achievable. But the question remains as to who will be the eldest member of Thanneer Kunnam Udaiyar family. 29. The Thanneer Kunnam Udaiyar family had five branches and Gopalsamy Udaiyar branch had alienated the right of Management in favour of the other party viz., the Iyer family. The remaining three branches alienated their share in favour of Swamiantha Udaiyar on 11/7/1952. Therefore, it is contended by the learned counsel for the revision petitioner in C.R.P.NPD (MD) No.2753 that the compromise that is referred to is only between the Iyer family and Swaminatha Udaiyar family. The remaining three branches alienated their share in favour of Swamiantha Udaiyar on 11/7/1952. Therefore, it is contended by the learned counsel for the revision petitioner in C.R.P.NPD (MD) No.2753 that the compromise that is referred to is only between the Iyer family and Swaminatha Udaiyar family. The mere employment of the term Thanneer Kunnam Udaiyar will not give right to the petitioners in I.A. The compromise decree in O.S.No.152 of 1988 does not specifically mentioned that it is only T.S.Swaminatha Udaiyar family who can be in Management. If the compromise intended that only T.S.Swaminatha Udaiyar's family alone are entitled to manage the School in rotation along with Iyer family, then the compromise would have explained the same. Whereas the compromise only refers to the eldest male member of the Thanneer Kunnam Udaiyar family. So, the eldest male member of the Thanneer Kunnam Udaiyar family would certainly mean the eldest male member of the branches of the Udaiyar family. If the intention of T.S.Swaminatha Udaiyar himself was to eliminate the interference of the other families, then, in the said compromise, he would have specifically added such a clause. In the absence of any such clause wherein T.S.Swaminatha Iyer signatory to the compromise had not categorically given up the right, it has to be taken that the compromise intended only the eldest male member of Thanneer Kunnam Udaiyar family to be in Management for a period of three years. When there is no specific recital to keep away the lineal descendants belonging to the other four branches of the Udaiyar family, then the compromise can be read only as the eldest male member of the Thanneer Kunnam Udaiyar family to be in Management. 30. Considering the question as to who would be the eldest male member of the Udaiyar family as on date, it is admitted by T.S.Rajagopal in his evidence as R.W.1 that of the members available, T.B.Ramanathan the second petitioner is the eldest male member. By virtue of the said admission, the trial Court also decided that the second petitioner viz., T.B.Ramanathan is entitled to be in Management of the School. 31. The learned counsel appearing for the Iyer family contended that the Udaiyar family had been in Management of more than 13 years whereas the Iyer family had been in Management for only ten years and therefore, the rotation Management should start with Iyer family. 31. The learned counsel appearing for the Iyer family contended that the Udaiyar family had been in Management of more than 13 years whereas the Iyer family had been in Management for only ten years and therefore, the rotation Management should start with Iyer family. This was accepted by the trial Court and permitted the Iyer family to be in Management for the first three years. 32. In view of the foregoing discussions, the findings of the Scheme Court is valid under the eye of Law and does not require any interference at the instance of the petitioners. 33. In the above circumstances, these Civil Revision Petitions are dismissed, confirming the order dated 7/12/2012 in I.A.No.34 of 2001 in O.S.No.22 of 1924 on the file of the Principal Sub-Court, Kumbakonam. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.