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2021 DIGILAW 341 (MAD)

S. Nanthakumar v. A. Viswanathan

2021-02-02

K.MURALI SHANKAR

body2021
JUDGMENT : (Prayer: Civil Miscellaneous Appeal is filed under Section 104 Order 43 Rule 1 of Civil Procedure Code, against the fair and ex-order dated 04.06.2016 made in I.A.No.26 of 2015 in O.S.No.12 of 2015 on the file of the Additional District Judge, Virudhunagar.) 1. The Civil Miscellaneous Appeal has been filed under Section 104, Order 43 Rule 1 of C.P.C, challenging the order passed in I.A.No.26 of 2015 in O.S.No.12 of 2015, dated 04.06.2016, dismissing the application filed under Section 92 C.P.C by the Additional District Court, Virudhunagar. 2. At the outset, on perusal of the records, this Court is constrained to say that when the first round of litigations are pending, the Appellants/petitioners have started the second round of litigation, sensing that they would not succeed in the first round of litigation that was initiated by their father. 3. For sake of convenience and brevity, the parties will herein-after be referred as per their status/ranking before the trial Court. 4. The facts not in dispute and that are necessary for the disposal of the present appeal are as follows: a) One Annamlai Chettiyar had two sons, namely, Muthukaruppan Chettiyar and Alagappan Chettiyar. The elder son Muthukaruppan Chettiyar had two sons, namely, Mariappan and Arumugam and the younger son had a son, namely, Shanmugasundaram Chettiyar. The petitioners and the respondents 3 to 5 are the lineal descendants of Muthukaruppan Chettiyar, the elder son of Annamalai Chettiyar. The respondents 1 and 2 are the lineal descendants of the younger son Alagappan Chettiyar. The said Annamalai Chettiyar executed a settlement deed, dated 03.02.1916 in respect of the ancestral properties and his self-acquired properties, in which, we are not concerned with the ancestral properties shown in 'A' schedule, and the self-acquired properties shown in 'B' and 'C' schedule, which were allotted to his sons Muthukaruppan Chettiyar and Alagappan Chettiyar respectively. b) In the settlement deed, Annamalai Chettiyar had stated that in his 'D' schedule property, he constructed a 'Samadhi' for his wife Sivakamiammal and constructed a temple around it, that he also constructed a Vinayagar temple in the said land and that he formed a Nandhavanam (garden) and also dug two wells therein. He settled the properties shown in 'E' schedule for the upkeep and maintenance of temples, Nandhavanam and well in 'D' schedule property. He imposed a condition that 'E' schedule property shall remain in-alienable. He settled the properties shown in 'E' schedule for the upkeep and maintenance of temples, Nandhavanam and well in 'D' schedule property. He imposed a condition that 'E' schedule property shall remain in-alienable. He directed that daily Poojas are to be performed and 'Naivedhyam' are to be offered in the said temples and 'Thirukkan' is to be set up for the local deities at the time of annual festivals. He further directed that his two sons and their descendants are to maintain and manage the 'D' and 'E' schedule properties in the alternative years, that after his demise, he is to be buried near his wife's Samadhi in 'D' schedule and a temple is to be constructed thereon and that two yearly Guru poojas are to be celebrated on the respective star dates and on those dates, food is to be offered to Brahmins, Sannyasis, relatives and the poor people. c) The lineal descendants of Alagappan Chettiyar and some of the lineal descendants of Muthukaruppan Chettiyar have filed a suit against the petitioners' father Sankaranarayanan and two others, in O.S.No.19 of 2001 on the file of the District Munsif Court, Virudhunagar to declare that the said Sankaranarayanan had ceased to be a trustee and has become disqualified to become a trustee in future and consequently, for injunction restraining him from occupying the post of trusteeship in future. d) The very same plaintiffs in O.S.No.19 of 2001 have filed another suit in O.S.No.123 of 2001 on the file of the District Munsif Court, Virudhunagar against the petitioners' father Sankaranarayanan and one M/s.Saranya Steels, alleged to be the trespasser, have claimed the relief of recovery of possession from the second defendant therein. The petitioners' father Sankaranarayanan contested the suit and after full trial, both suits were decreed in favour of the plaintiffs therein. Aggrieved by the said judgments, the petitioners' father preferred two appeals in A.S.No.20 of 2004 and A.S.No.52 of 2004 on the file of the Sub Court, Virudhunagar and that the said appeals were also dismissed. Not satisfying with the judgments of the Appellate Court, the said Sankaranarayanan has preferred the second appeals before this Court in S.A. (MD)No.752 and 753 of 2005 and the appeals are still pending. During the pendency of the above second appeals, the petitioners' father Sankaranarayanan had died. Not satisfying with the judgments of the Appellate Court, the said Sankaranarayanan has preferred the second appeals before this Court in S.A. (MD)No.752 and 753 of 2005 and the appeals are still pending. During the pendency of the above second appeals, the petitioners' father Sankaranarayanan had died. While the petitioners' father Sankaranarayanan was alive, the petitioners have issued a legal notice dated 22.01.2008, under Ex.R.1, against the some of the lineal descendants of Muthukaruppan Chettiyar and Alagappan Chettiyar, including their father Sankaranarayanan, for which, the recipients of the notice excluding the petitioners' father have sent a reply on 19.02.2008 under Ex.R.2. Thereafter, the petitioners have sent another legal notice on 30.07.2014 under Ex.R.3 to the very same persons, but excluding their father, for which, they have sent a reply dated 22.08.2014 under Ex.R.4. Thereafter, in August 2015, the petitioners have filed the above suit and also the above applications under Section 92 of C.P.C, seeking leave to institute the suit. The learned trial Judge, after conducting the enquiry, has passed the impugned order dated 04.06.2016, dismissing the said application. Aggrieved by the said order, the petitioners have come forward with the present appeal. 5. According to the petitioners, the trust created under the settlement deed by their forefather Annamalai Chettiyar is a public trust, but according to the respondents, it is a private trust. In case, if its shown that it is a private trust, then the petitioners have to fail, but if it is shown that it is a public trust, then the petitioners have to shown that there was a breach of trust or that the direction of the Court is necessary for the administration of the trust. 6. The main point that arises for consideration is as to whether the trust allegedly created under the settlement deed 03.02.1916, is a private trust as alleged by the petitioners or a private trust as alleged by the respondents? If it is a public trust, the next point to be considered is as to whether the petitioners have shown the alleged breach of trust or that the circumstances warranting the orders of the Court for administration of the trust.? 7. At the outset, it is pertinent to remind that a suit under Section 92 of C.P.C is of special nature which presupposes, the existence of a public trust of a religious or charitable character. 7. At the outset, it is pertinent to remind that a suit under Section 92 of C.P.C is of special nature which presupposes, the existence of a public trust of a religious or charitable character. Section 92 contemplates the conditions and the procedures to institute a suit relating to the public charities and as such Section 92 has no application to the private trusts. But the private trusts are governed by the provision of the Trusts Act. In order to apply Section 92 of C.P.C, the following conditions must be satisfied: (1) There is a trust created for public purposes of a charitable or generous nature; (2) There is a breach alleged of such trust, or the direction of the Court is necessary for the administration of such trust; (3) the suit must be a representative one on behalf of the public and is not by individuals for their own interests and; (4) the relief claimed in the suit is the one or other reliefs mentioned in that Section. 8. The real test for the applicability of Section 92 CPC is to see whether the suit is fundamentally on behalf of the public for vindication of a public right and not for vindication of an individual or personal right. 9. The learned counsel for the Petitioners has relied on the decisions reported in: (1) 2015 (3) CTC 654 [Imayam Trust by its Chairman and others Vs. Balakumar and others.] (2) 2020 (5) MLJ 1 Ms.Regeena and others Vs. Ms.Jeppiaar Sheela and others and; (3) 2020 -5- L.W. 594 [Asok kumar Gupta and another Vs. M/s.Sitalaxmi Sahuwala Medical Trust and others. 10. In the above three decisions, there is no dispute about the nature of the trust and it is admitted by all the parties therein that the trust involved are public trusts. In Imayam Trust's case, the 1st cited, it is admitted by the parties therein that the trust was created for the object of upliftment of the public, especially downtrodden people to give education by starting Educational Institutions and the High Court has specifically held that the trust, is prima facie, proved to be a 'Public Trust' intended to benefit the public. In the second decision, it is admitted by the parties therein that Jeppiaar Educational Trust is a public charitable educational trust. In the second decision, it is admitted by the parties therein that Jeppiaar Educational Trust is a public charitable educational trust. In the third decision in M/s.Sitalaxmi Sahuwala Medical Trust's case, the Hon'ble Apex Court has specifically observed that it is admitted by all the parties that the concerned trust is created for public purposes of charitable nature. In the case on hand, the dispute itself is with respect to the nature of the trust and as such the above decisions does not help the petitioners in any way. 11. The learned counsel for the petitioners has relied on the decision in Regeena's case, for one more aspect that for granting the leave under Section 92 of C.P.C., the plaint and its documents alone have to be taken into account and not the defence set up by the other side. No doubt, this Court has observed that the genuineness or veracity of the defence raised, cannot be gone into at this stage and that the entire plaint and the documents annexed are only to be considered and according to this Court, that is only to see as to whether prima facie case for breach of trust is made out. 12. The learned trial Judge has rightly relied on the decision reported in CDJ 2016 SC 2005 [Sri Aurobindo Ashram Trust and others Vs. R.Ramanathan and others], whereunder, another decision in Swami Paramatmanand Saraswati and another Vs. Ramji Tripathi and another, reported in (1974) 2 SCC 695 , was referred and in that decision, the Hon'ble Supreme Court has held that in order to gauge whether the suit was for vindicating public rights, the Court has to go beyond the relief and to focus on the purpose, for which, the suit is filed and that it is the object or purpose for filing the suit and not essentially the relief, which is of paramount importance. 13. In a case of clever drafting of the plaint, the Court apart from perusing the plaint, can very well go beyond the plaint contentions and the reliefs claimed and to find out the real object or the purpose for the filing of the suit. At this juncture, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2003 AIR (SC) 1685 [Kuldip Chand Vs. At this juncture, it is necessary to refer the decision of Hon'ble Supreme Court reported in 2003 AIR (SC) 1685 [Kuldip Chand Vs. Advocate General to Government of Himachal Pradesh:] “48.This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature: (1) Where the Origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof of show that the endowment was of a private nature; (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment” 14. Now coming to the factual aspects of the case on hand, in order to ascertain the intention of the executant of the settlement deed, i.e., founder of the trust, it would be appropriate to refer his own words from the settlement deed; “TAMIL” 15. It is evident from the above recitals of the settlement deed that after the demise of the founder Annamalai Chettiyar, the trust activities are to be administrated and managed only by his two sons and their legal heirs/descendants and therefore, the entry of a third party or outsider into the trust is impliedly barred or prohibited by the founder himself. It is evident from the above recitals of the settlement deed that after the demise of the founder Annamalai Chettiyar, the trust activities are to be administrated and managed only by his two sons and their legal heirs/descendants and therefore, the entry of a third party or outsider into the trust is impliedly barred or prohibited by the founder himself. More over, the trust was allegedly created to perform 'Daily Poojas' and 'Naivaithiam' to the temples constructed in the 'D' schedule properties and to celebrate two Gurupoojas in a year in remembrance of the founder Annamalai Chettiar and Sivakamiammal on their respective star dates. No doubt, in two Gurupooja days, food is to be provided to the Brahmins, Sannyasis, Relatives and poor people without any discrimination and to their satisfaction. 16. The learned counsel for the petitioners has given much importance to the above condition in the settlement deed and argued that the trial Court has failed to see that feeding of Brahmins, Sannyasis and the poor would go to show that it is the wish of the founder trustee to feed the public at large and not the limited members, which is one of the characteristic features of the public trust. The learned counsel for the petitioners has relied on the decision of this Court reported in (1987) 1 MLJ 79 , Annamalai Ayye Chatram Represented by its Trustee Vs. Authorised Officer (Land Reforms), Thanjavur and another. No doubt, this Court by quoting an earlier decision in N.Ramaswami Mudaliar Vs. S.A.Aiyasamy Chettiar and others reported in AIR 1960 Mad 467 , has observed that even the dharmam of feeding Brahmins as a class- not necessarily destitute or only of the poor but an indefinite class not restricted to privileged individuals would constitute a public religious or charitable trust. It is necessary to refer the last two paragraphs in the said judgments : “A Hindu religious festival or observance may have a local significance, in that it is celebrated or observed in a particular locality in connection with a shrine, temple or math, or it may be a festival or observance celebrated generally without any connection with any temple or math. In the case of such general festivals or observances there is no one who can be said to control the celebrations, and the definition of 'religious charity' includes such general festivals and observances. In the case of such general festivals or observances there is no one who can be said to control the celebrations, and the definition of 'religious charity' includes such general festivals and observances. It cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance such a relation that the administration of the charity must be controlled by those who celebrate the festival or observance in a temple or math, besides they being inapt in the case of general festivals and observances can only be evolved if words which are not found in the definition of 'religious charity' are added thereto. That Dwadasi day is a day of religious significance to Hindus cannot be put in issue and in fact has not been put in issue. As per the clause in the deed of Trust, the feeding of Brahmins should be done on Dwadasi days. Ekadasi, the eleventh day of every fortnight in a lunar month is sacred to Lord Vishnu and complete fasting is prescribed. Dwadasi is the day following Ekadasi and. it is the twelfth day of every fortnight in a lunar month. Breaking of the fast on that day within a stipulated period is considered essential. A special diet is also prescribed. There are puranic stories about this significance and observance, for example, Ambarisha. Hence, Dwadasi day is a day of religious observance for Hindus is beyond doubt. Feeding of Brahmins as an indefinite class, an uncertain and fluctuating body would certainly amount to a public Trust. Such feeding should take place on Dwadasi days, makes it associated or linked with an observance of religious character. Hence, the conclusion that it is a public charity associated with an observance of a religious character should necessarily follow. The expression in 'observance' must have a wider meaning is the view of a Bench of this Court to which I have been a party in Thangavelu Udayar and Ors. v. Avudayarkoil Annachathiram S.T.A. No. 315 of 1977, dt. 11.8.1982. In the said pronouncement, it was also opined that performing Dharmam especially Annadhanam is to seek salvation, in other words Moksham and it would amount to observance of a religious character. v. Avudayarkoil Annachathiram S.T.A. No. 315 of 1977, dt. 11.8.1982. In the said pronouncement, it was also opined that performing Dharmam especially Annadhanam is to seek salvation, in other words Moksham and it would amount to observance of a religious character. Our Hindu tradition does not draw a line of distinction between religion and charity and charity is always regarded as part of religion and religious observance. In this view, I have to hold that the trust in the present case has both the elements, being public as well as religious and certainly it would fall within Section2(1)(ii) of the Act so as to take the lands in question out of the mischief of the Act. In this view, this writ petition is allowed. No costs.” 17. In the present case, the settlement deed does not contemplate any celebration of Hindu religious festivals or observances. As already pointed out, the founder has directed that on the star dates of himself and his wife, Gurupoojas are to be celebrated. As rightly observed by the trial Court, except getting food on two Gurupooja days, in every year, no other right or benefit is given to any third party or general public. 18. In the case on hand, the origin of endowment is very much available in the form of settlement deed and there is no dispute about the same. The control and the management of the trust is vested with the descendants of the founder Annamalai Chettiyar and no third party can enter into and only in the case of dispute between the trustees, their own community people at Virudhuppatti would have power to resolve the disputes. “TAMIL” As already pointed out, the founder has endowed 'E' schedule property for the upkeep and the maintenance of the temples and Samadhis in 'D' schedule property. More importantly, the founder Annamalai Chettiyar did not make any stipulation for offering or contributions to be made by outsiders or by the members of the public to the temples in 'D' schedule property. 19. The other contention of the petitioners is that the condition imposed in the settlement deed that the 'E' schedule properties are inalienable in nature would go to show that the trust is a public trust. I am at loss to understand as to how the said condition can be connected with the nature of the trust. 19. The other contention of the petitioners is that the condition imposed in the settlement deed that the 'E' schedule properties are inalienable in nature would go to show that the trust is a public trust. I am at loss to understand as to how the said condition can be connected with the nature of the trust. As already pointed out, the control and management of the trust and its properties are vested with the descendants of the founder Annamalai Chettiyar and with an intention to make the trust activities to be continued for ever, he imposed a condition that the 'E' schedule properties meant for maintaining and upkeeping of the 'D' schedule properties should not be alienated or encumbered. Except the above, as rightly observed by the trial Court, the petitioners have not whispered as to how they are claiming the trust to be the public trust. 20. As already pointed out, two second appeals, which were filed by the petitioners' father are still pending before this Court and according to the respondents, the petitioners have not taken any steps to get themselves impleaded. It is the specific case of the respondents that the competent civil Court, has already declared that the petitioners' father Sankaranarayanan was ceased to a trustee and has become disqualified to become a trustee in future. 21. It is pertinent to mention that the petitioners' father has filed the written statement in both the suits before the District Munsif Court, Virudhunagar and it is necessary to extract the Paragraph No.6 of the written statement filed in O.S.No.19 of 2001 and the Paragraph No.5 of the written statement filed in O.S.No.123 of 2017, which are similar, here under for better appreciation : “TAMIL” The first defendant is none other than the petitioners' father Sankaranarayanan and in the above written statement, he had categorically admitted that the trust created under the settlement deed dated 03.02.1916 is a private trust. No doubt, as already pointed out, the petitioners have sent a legal notice to other descendants of Annamalai Chettiyar including their father Sankaranarayanan under Ex.R.1 and even after suitable reply given by the other descendants, they have not taken any steps to get themselves impleaded in the then pending proceedings to canvass their stand that the trust was only the public trust. 22. 22. It is pertinent to mention that after issuance of first notice under Ex.R.1 in 2008, admittedly, they have not taken any steps and after six years, they have again issued another notice in 2014 and one year thereafter, they have laid the above suit. As rightly contended by the learned counsel for the respondents, sensing that they would not succeed in the first round of litigation, in an attempt to vindicate their personal rights, have wantonly and purposely set up a plea that the trust is a public trust and filed the above suit. 23. Considering the above, the finding of the trial Court that the trust in question is not a public trust but a private trust and Section 92 of C.P.C has no application to the case on hand, cannot be found fault with and this court is in entire agreement with the finding recorded by the learned trial judge. Consequently, this Court concludes that the above appeal, which is devoid of merits, is liable to be dismissed. Considering the fact that the petitioners have initiated the second round of litigation and on considering the other facts and circumstances, this Court further decides that the petitioners must be mulcted with costs and the above points are answered accordingly. 24. In the result, the Civil Miscellaneous Appeal is dismissed with costs and the impugned order dated 04.06.2016 made in I.A.No.26 of 2015 in O.S.No.12 of 2015 on the file of the Additional District Court, Virudhunagar, is confirmed. Consequently, connected Miscellaneous Petition is closed.