Research › Search › Judgment

Madras High Court · body

2021 DIGILAW 1255 (MAD)

D. Rajamanickam v. Muthukrishnan

2021-04-01

R.SUBRAMANIAN

body2021
JUDGMENT : R. Subramanian, J. 1. The defendants 4 to 9 and the legal heirs of the 10th defendant in O.S. No. 128 of 1997 are the appellants. Challenge is to the judgment and decree of the trial court made in the said suit granting a declaration that the suit property belongs to the Deity Sri Muthiahswamy and directing the defendants 3 to 10 to vacate and hand over the suit property to the plaintiff without any let or hindrance and for payment of future mesne profits. 2. The plaintiff laid the suit contending that the suit property is a trust property, in which, the Deity Sri Muthiahswamy is established. The suit Deity which is the family Deity of the first plaintiff and the defendants 1 and 2 is kept in the suit property for more than 5 generations. The predecessors in interest of the plaintiff one Nagappa Pillai and his brother Arumugam Pillai had executed a trust deed on 30.04.1951, in and by which, the elder brother Arumugam Pillai was appointed as a Trustee to look after and conduct festivals and functions of the family Deity. Under the said deed, there is an absolute dedication of the property in favour of the Deity and the elder brother Arumugam Pillai was appointed as a trustee to administer the property without making any alienations. It is also borne out from the document that after the life time of Arumugasamy Pillai, his brother Nagappa Pillai and his heirs shall be Trustees for the Deity Sri Muthiahswamy. 3. The plaintiff would further claim that during his life time, Arumugasamy Pillai was conducting festivals, poojas and functions of the family Deity. It is also claimed that apart from performing daily poojas, special poojas were also performed on certain occasions like, Chitra Powrnami, Sivarathiri and Pongal etc. One Muthuvel is a eldest son of Nagappa Pillai, who died in the year 1956. He had executed a release deed in favour of his father in respect of trust property and other properties even during his life time. Nagappa Pillai predeceased his brother Arumugam Pillai on 26.05.1958. Arumugam Pillai had no issues of his own. The defendants 1 and 2 and the plaintiff are the children of Nagappa Pillai. He had executed a release deed in favour of his father in respect of trust property and other properties even during his life time. Nagappa Pillai predeceased his brother Arumugam Pillai on 26.05.1958. Arumugam Pillai had no issues of his own. The defendants 1 and 2 and the plaintiff are the children of Nagappa Pillai. After the death of Nagappa Pillai all his living heirs including the plaintiff and defendants 1 and 2 have become the trustees of the trust and all of them are looking the affairs of the trust. 4. It is also claimed that one Vijayalakshmi, sister of the first plaintiff left the family long time back and she has not been heard of for more than 10 years. It is claimed that the defendants 1 and 2 did not look after the affairs of the family Deity. Claiming that she had been looking after the affairs of the family Deity and conducting festivals and that the second defendant had executed release deed in favour of the first defendant on 29.04.1963, the plaintiff would contend that she has been leasing out the property to the defendants 3 to 6 and she has been collecting rents from them and performing the daily poojas and other festivals. 5. The plaintiff would further contend that the defendants 1 and 2 in collusion with the defendants 3 to 6 brought about alienation on 31.08.1981 in respect of the suit property by means of a purported exchange deed between themselves. Contending that the exchange deed is invalid since alienation of the trust properties is prohibited, the plaintiff would term the document as a fraudulent instrument. It is also contended that the property alleged to have been transferred to the trust under the exchange deed never belonged to the defendants 3 to 6. According to the plaintiff, it is a poramboke property and by creation of the exchange deed, the defendants 1 and 2 have practically sold away the trust property. On the above contentions, the plaintiff sued for a declaration and for recovery of possession. 6. The suit was resisted by the defendants 1 and 2 contending that the plaintiff being a daughter, who has gone out of the family upon marriage is not entitled to claim as a trustee of the trust. On the above contentions, the plaintiff sued for a declaration and for recovery of possession. 6. The suit was resisted by the defendants 1 and 2 contending that the plaintiff being a daughter, who has gone out of the family upon marriage is not entitled to claim as a trustee of the trust. It was also contended that the suit property is not a trust property and the defendants are entitled to alienate the same. The defendants have not sold away the property. They have only exchanged the property for another property at Anaiyur, where the second defendant is living with his family. The defendants would contend that it is not open to the plaintiff to question the transaction. It is claimed that the alienation is to the advantage of the trust. Therefore, the same cannot be questioned by the plaintiff. 7. The defendants 4, 5 and 6 filed a separate written statement claiming that the plaintiff has no right to maintain the suit. The Deity Sri Muthiahswamy is not a family Deity of the plaintiff since the plaintiff has gone out of the family upon marriage. It was also contended that the trust deed dated 30.04.1951 itself is not valid and the same is unenforceable in law. The claim of the plaintiff that after Arumugam Pillai, the children of Nagappa Pillai would become trustees is also disputed relying upon the usage of the term in the trust deed, the defendants 4 to 6 would contend that in 1951 would include only male heirs and not female heirs. On the above contention, the defendants 4 to 6 sought for dismissal of the suit. 8. The defendants 11 to 13 are the children of Vijayalakshmi one of the sisters of the plaintiff who according to the plaintiff was unheard of and presumed to be civilly dead. They sought for impleadment in the suit and they were impleaded as the defendants 11 to 13. They, to a certain extent, supported the case of the plaintiff in her case against alienation of the trust property. They would further claim that being the children of one of the daughters they are also entitled to be in management of the trust and its properties. 9. The suit was originally dismissed by the trial court on 06.04.2006. They, to a certain extent, supported the case of the plaintiff in her case against alienation of the trust property. They would further claim that being the children of one of the daughters they are also entitled to be in management of the trust and its properties. 9. The suit was originally dismissed by the trial court on 06.04.2006. The appeal filed by the plaintiffs against the said judgment and decree in A.S. No. 125 of 2006 was allowed by the II Additional Subordinate Court, Madurai on 30.10.2009. The defendants 4 to 6 preferred an appeal in S.A.(MD) No. 113 of 2010 before this Court. The said Second Appeal came to be allowed and the matter was remitted to the trial court, directing disposal of the suit on the basis of the amended pleadings, on 22.08.2011. After remand, the trial court framed the issues afresh. 10. The original plaintiff's husband Muthukrishann was examined as P.W.1 and Exs.A1 to A.10 were marked before remand. After remand, the plaintiffs did not choose to let in any further evidence. On the side of the defendants, the fourth defendant was examined as D.W.1 and one Ganesan was examined as D.W.2. Ex.B.1 to B.15 were marked. After remand, a Commissioner was appointed and his report and plan were marked as Exs.C.1 and C.2. The defendants did not let in fresh evidence after remand. 11. The trial Judge, upon consideration of the evidence on record, concluded that the execution of the trust deed dated 30.04.1951 marked as Ex.A.2 is true and valid and the plaintiff as a daughter of one of the executant is entitled to claim as trustee. The learned trial Judge also concluded that the plaintiff and the defendants 2, 11 to 13 belong to the family of which the Deity Sri Muthiahswamy is a family Deity and the plaintiff and the defendants 2, 11 to 13 were entitled to be in management of the affairs of the trust. The learned trial Judge on the terms of the settlement deed dated 30.04.1951 concluded that the trust has been created and the properties are inalienable. On the above conclusion, the learned trial Judge decreed the suit as prayed for. 12. Aggrieved, the defendants 4 to 10 preferred an appeal in A.S. No. 23 of 2014. The learned trial Judge on the terms of the settlement deed dated 30.04.1951 concluded that the trust has been created and the properties are inalienable. On the above conclusion, the learned trial Judge decreed the suit as prayed for. 12. Aggrieved, the defendants 4 to 10 preferred an appeal in A.S. No. 23 of 2014. The learned appellate Judge, on a re-appreciation of evidence on record, concurred with the findings of the trial court both on the question of alienability of the trust property as well as the capacity of the plaintiff to maintain the suit. Upon said concurrence, the leaned appellate Judge dismissed the appeal confirming the judgment and decree of the trial court. Aggrieved, the defendants 4 to 10 have filed the instant Second Appeal. Since the 10th defendant, who figured as the 7th appellant died pending appeal, the appellants 4 to 6 who are her children were declared as her legal representatives. 13. Originally, notice of motion was ordered and when the appeal was listed for hearing on 19.02.2020, the following questions of law have been framed by this Court: i) Whether the courts below are right in interpretation of the Trust Deed to the effect that the original plaintiff namely, Tmt. Radha would qualify to be Trustee of the Trust in question? ii) Whether the word used in the Trust Deed of the year 1951 would exclude the female heirs? iii) Whether the courts below are right in concluding that exchange by the defendants 1 and 2 in favour of the defendants 3 to 6 would be invalid in view of the prohibition contained in the Trust Deed of the year 1951 without considering whether the same is for the benefit of the Trust or not? 14. I have heard Mr. M.V. Venkataseshan, learned counsel appearing for the appellants, Mr. M. Vallinayagam, learned Senior counsel for Mr. D. Nallathambi, learned counsel appearing for the respondents 8 to 10, Mr. E.T. Rajendran, learned counsel appearing for the respondents 2 to 6 and Mr. V. Kalyanasundaram, learned counsel appearing for the respondents 11 to 17. 15. Mr. 14. I have heard Mr. M.V. Venkataseshan, learned counsel appearing for the appellants, Mr. M. Vallinayagam, learned Senior counsel for Mr. D. Nallathambi, learned counsel appearing for the respondents 8 to 10, Mr. E.T. Rajendran, learned counsel appearing for the respondents 2 to 6 and Mr. V. Kalyanasundaram, learned counsel appearing for the respondents 11 to 17. 15. Mr. M.V. Venkataseshan, learned counsel appearing for the appellants would vehemently contend that the original plaintiff being the daughter of Nagappa Pillai will not qualify to be a trustee of the trust in question and therefore, the suit filed by her should have been dismissed on her locus standi to institute the suit. He would further submit that the term used in the trust deed dated 30.04.1951 would not include female heirs and it should be confined only to the male heirs since a daughter was made as a heir under Hindu law only after introduction of the Hindu Succession Act in 1956. He would also contend that once it is proved that alienation is to the advantage of the trust, the courts below should not invalidate alienation on the ground that the trust document contained a prohibition on alienation. Mr. M.V. Venkataseshan, would also refer to the evidence to claim that the suit itself is not a bonafide exercise but has been brought about only to get rid of the defendants 3 to 10 from the possession of the property. 16. Contending contra, Mr. M. Vallinayagam, learned Senior counsel appearing for the respondents 8 to 10 would submit that it will be unfair to restrict the meaning of male heirs only. He would also point out that the document does not qualify the term. He would also submit that the term only means heirs and not male heirs. The learned counsel would submit that once it is found that the properties are the trust properties and the trust document imposed prohibition for alienation of the properties, the courts below were right in concluding that the alienation is not valid. Whether the action is beneficial to the trust or not will have to take the back seat when there is a express prohibition in the document regarding alienation. The learned counsel would also draw my attention to the language of the trust deed, which specifically prohibits alienation. Whether the action is beneficial to the trust or not will have to take the back seat when there is a express prohibition in the document regarding alienation. The learned counsel would also draw my attention to the language of the trust deed, which specifically prohibits alienation. The learned counsel would further contend that the question as to whether alienation is for the benefit of the trust or not need not be gone into by the court in the given circumstances. 17. I have considered the rival submissions. 18. The fact that the property was dedicated to the Deity under trust deed dated 30.04.1951 under Ex.A.2 is not in dispute. The interpretation placed by the court on the scope of the document is not very seriously challenged in this appeal. The only contention that is urged by the learned counsel for the appellants is that the plaintiff has no locus standi to maintain the suit as the document confers right of trusteeship only on Nagappa Pillai and his male heirs, as according to him, the term would only mean male heirs and will not include female heirs. The learned counsel would also submit that the courts must have examined the relative advantage obtained by the trust by virtue of exchange entered into between the defendants 1 and 2 on the one hand and the defendants 3 to 6 on the other. The trust deed dated 30.04.1951 makes an absolute dedication of the property in favour of the Deity namely Deity Sri Muthiahswamy. It also imposes a prohibition on the trustees from alienating the property. It also recites that after life time of Arumugam Pilla, Nagappa Pillai and his heirs should be trustees and they shall enjoy the property subject to the performance of the obligations created under the trust. The exchange deed dated 31.08.1981 is executed by the defendants 1 and 2 who are the sons of Nagappa Pillai and the defendants 3 to 6, are the tenants in the property. There was alienation by the trustees of the property belonging to the trust. Once there is a prohibition contained in the trust document, alienation of the trust properties dehors the prohibition would be invalid and it is not incumbent upon the court to go into the relative advantage or disadvantage accompanying the transactions. There was alienation by the trustees of the property belonging to the trust. Once there is a prohibition contained in the trust document, alienation of the trust properties dehors the prohibition would be invalid and it is not incumbent upon the court to go into the relative advantage or disadvantage accompanying the transactions. Such exercise would be carried out only in the event of the trustees are before the court seeking permission to alienate the trust property on the ground of such alienation is advantageous to the trust. 19. I do not think that the court is burdened with a duty to examine relative advantages or disadvantages of alienation when such alienation is expressly prohibited by the trust document. I am therefore, constrained to reject the argument of Mr. Venkataseshan, learned counsel appearing for the appellants that the court must have gone into the relative advantages or disadvantages of the transaction and hence, the third question of law is answered against the appellants. 20. The answer to the first and second questions of law would depend upon the scope of meaning of the term found in the said instrument. The definition or meaning of the term is no longer disintegrate. The term in Tamil is synonym of the term in Sanskrit. This Court has considered the meaning of the word in Balasubramania Pillai Vs. Pitcha Pillai reported in 33 Ind Cas 552 as early as in the year 1914. This Court had pointed out that the word according to Sanskrit discretionary means: "uninterrupted succession, descent, lineage, race, progeny, offspring, a son, a daughter etc.," 21. Again in Muppidathi Ammal Vs. Muthuswami Pillai and others reported in AIR (1928) Mad. 126, this Court, while considering an issue as to whether the word would include an adopted son, held that phrase in ordinary Hindu usage signifies offspring, progeny, issue and would also include 'adopted child'. 22. In Santi Bala Ghosh Vs. Sudhangsubala Basu reported in ILR 1949 2 Cal. 67, the Calcutta High Court had considered the meaning of the word 'santanera' which is a synonym to or in Bengali and had held that the word ordinarily means both sons and daughters but the court had concluded that on the facts of the said case, the intention of the testator was to give benefit only to male heirs to the exclusion of female heirs. 23. Mr. 23. Mr. M.V. Venkataseshan, would further contend that the meaning of the word used in the trust document dated 30.04.1951 should be decided with reference to the law of inheritance that was in force as on that date and therefore, the term would not include the female heirs. The learned counsel has relied upon the Division Bench of this Court in K.M.S.L. Sundararamier Vs. K.N. Sarojini 97 LW 169 while considering usage of a word in an instrument of the year 1919. The judgment of the Division bench is concerned with the meaning assigned for the term as eldest heir with reference to the document that was executed in the year 1919. The Division Bench concluded that the law of inheritance that prevailed at that time should also be borne in mind while deciding the intention of the author of the instrument. In doing so, the Division Bench concluded that the female heirs would stand excluded and the office of trusteeship would devolve on the eldest male member in the male line of succession. 24. The document that is before us is of the year 1951. The language of the instrument would show that trusteeship is not restricted to the eldest heir. The relevant portion of the instrument reads as follows: xxxxxxxxxxxxxx Therefore, I am unable to concur with the submissions of the learned counsel that the word used in the document dated 30.04.1951 should be confined only to a male heir and it would not include female heirs. 25. Even assuming that as per the document, the trusteeship would devolve on the heirs of Nagappa Pillai, the test would be who would be the heirs of Nagappa Pillai on the date of his death. Admittedly, Nagappa Pillai died in the year 1958 after introduction of the Hindu Succession Act. Therefore, as on the date of death of Nagappa Pillai, the first plaintiff being the daughter of Nagappa Pillai was his heir and therefore as a heir of Nagappa Pillai, she would be entitled to be a trustee. Even assuming that the plaintiff is not entitled to be a trustee, she as a person interested or as a beneficiary of the trust is entitled to sue for declaration and recovery of possession of the trust properties, which have been improperly alienated by the trustees. Even assuming that the plaintiff is not entitled to be a trustee, she as a person interested or as a beneficiary of the trust is entitled to sue for declaration and recovery of possession of the trust properties, which have been improperly alienated by the trustees. As already seen, the dedication is in favour of a Deity and the Deity is a perpetual minor. The court is bound to safeguard the interest of the Deity and the court would assume the jurisdiction of the guardian of the Deity and when a suit is brought about by a person interested/beneficiary for recovery of property, which is improperly alienated. I do not think that the court should be bound by shackles of interpretation relating to the words used in the trust document. I am therefore of the considered opinion that the courts below were perfectly justified in concluding that the term used in the settlement deed dated 30.04.1951 would include a female heir also inasmuch as the executant of the document namely, Nagappa Pillai died only in the year 1958 after coming into force the Hindu Succession Act. For the foregoing reasons, the questions of law 1 and 2 are also answered against the appellants. 26. In fine, this Second Appeal fails and the same is accordingly dismissed. However, in the circumstances of the case, there shall be no order as to costs.