Dismissed

P.Balasubramanian v. Victoria @ Balasundari Ammal(Died)

Madras HC6 Jul 2021AS/1065/2003

Case brief

AI extract

What is this about?

The High Court of Madras dismissed an appeal suit challenging the alienation of property alleged to be a private trust. The court found the trust to be private, the plaintiffs lacked standing, and the suit was barred by limitation.

What did the court decide?

The Appeal Suit is dismissed. No costs.

What the court decided

P.Balasubramanian Vs Victoria @ Balasundari… — Succession and Inheritance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 06.07.2021

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CORAM

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THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

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A.S.No.1065 of 2003

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1.P.Balasubramanian S/o.Palaniandi Mudaliar C.N.Palayam Village, Cuddalore Taluk. (as representing Thaila Manicka Chettiar Chatram, C.N.Palayam) .... Appellant Vs

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Victoria alias Balasundari Ammal (Died)

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Kalyani Ammal

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Visalakshi (Died)

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Dhanalakshmi (Died)

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Velayudham

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Rajaguru

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Mangalagowri

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Anandan

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Manikandan

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Santhakumar

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Muthu Chettiar

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(RR1, 3 & 4 died. Memo recorded memo SR No.19318/20 (07.12.2021) vide order of Court dated 08.12.2020 made in A.S.No.1065 of 2003) .... Respondents

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PRAYER: Appeal Suit filed under Section 96 of CPC to set aside the Judgment and Decree dated 31.07.2003 made in O.S.No.1 of 2003 on the file of the Additional District Judge, Fast Track Court No.II, Cuddalore.

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For Appellant : Mr.R.Gururaj For R1, R3 & R4 : Died For R2, R5 to R11 : No appearance

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JUDGMENT

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This Appeal suit is filed against the Judgment and Decree dated 31.07.2003 made in O.S.No.1 of 2003 on the file of the Additional District Judge, Fast Track Court No.II, Cuddalore.

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https://hcservices.ecourts.gov.in/hcservices/

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For the sake of convenience, the parties are referred to as per their ranking in the trial Court.

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The case of the plaintiff is that the suit property originally belonged to one Thaila Manicka Chettiar, son of Ramasamy Chettiyar. He bequeathed all of his properties by registered Will dated 25.12.1910 and thereby created various charities, accordingly Thaila Manicka Chettiar Chatram was formed and it is a public trust. He directed to perform the lawful charities. The charities were directed to be performed in the choultry building in Bazaar Street of C.N.Palayam Village belonging to his family. The expenses such as paying employees of choultry, lighting the lamps, carrying out repairs to the building etc., have to be met from the funds of the trust. He also named his daughter i.e., Thaiyyanayaki, to look after the trust on her behalf by guardian since, she was minor and thereafter, to be handed over to his daughter after she attains majority.

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On 24.01.1914 he also executed a Codicil as a supplement to the earlier Will dated 25.12.1910. Thereafter, he died and the Will of Codicil were given effect to. The defendants 1 to 3 are daughters of the said Thaiyyanayaki and they were living jointly. By a registered partition deed dated 26.03.1960, all the properties belonging to the family were divided into four shares. In the said partition 'A' schedule property was allotted to the suit Trust in fulfillment of the directions as per the Codicil dated 24.01.1914. The rest of the properties were divided among the family members. Even after the partition, the said Thaiyyanayaki continued to perform the charities to the best of her ability, till her death. After her demise, defendants 1 to 3 did not choose to take care of the charity properties and failed to perform any of the charity as per the Codicil executed by Thaila Manicka Chettiar.

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It was further averred that the defendants 1 to 3 alienated certain item of the property in their individual capacity to defendants 4 and 5. The alienation was made without any sanction from the Court of law and more over the defendants 1 to 3 cannot convey any property in their individual capacity . The trust building was situated in the 'A' schedule of the suit property. According to the 4^th defendant, he purchased the building and demolished a portion of the said building. In the remaining portion, a school belonging to the Panchayat Union is being run and the 4^th defendant attempted to demolish the said portion of the building. Hence, the suit for declaration and permanent injunction is filed by the plaintiffs.

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Resisting the same, the 2^nd defendant filed a written statement stating that the Chatram is not a 'public trust'. The sole and supreme object of Thaila Manicka https://hcservices.ecourts.gov.in/hcservices/ Chettiar created a trust so that his heirs may perform the

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various charities mentioned in the trust deed. In fact, it has been specifically mentioned in the Trust Deed dated 15.11.1963 that no other person is entitled to question the activities to the trust. Therefore, the suit itself is not maintainable and liable to be dismissed.

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The 1^st and 3^rd defendants filed a separate written statement stating that the suit trust is not a 'public trust'. It is a private trust endowed with public and charitable purpose. The purpose or the nature of the charities will not make it a public trust at all. The defendants 1 to 3 are performing the charities as far as possible. The allegations made in the plaint are too vague and absolutely imaginary. The income from the trust properties is just as much as in the previous years or even less. The plaintiffs are not the persons in any way interested in the trust. As per the terms of the Will, the plaintiffs are incompetent and disqualified to be the trustees. It is a trust, which has to be managed by Thaiyyanayaki. The defendants 1 to 3 are daughters of the said Thaiyyanayaki. They are the only persons eligible to perform the trust. Therefore, they prayed for dismissal of the suit..

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The 4^th defendant filed a separate written statement stating that 'A' schedule property is not a trust property much less a public trust property, and as such, no Court sanction is necessary. He had purchased the suit property for valid consideration and in any event, the plaintiffs have no locus standi to question the same. Hence, he prayed for dismissal of the suit.

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The 8^th defendant filed a separate written statement and reiterated the same, which were resisted by the other defendants.

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The 11^th and 12^th defendants filed a separate written statement stating that the suit properties are not trust properties and the plaintiffs are not entitled to the suit properties. Therefore, the suit itself is not maintainable. He further submitted that the 4^th defendant, who died on 21.12.1987 had executed a registered Will dated 31.01.1986 bequeathing the suit property to the defendants 11, 12 and 13. The plaintiffs were fully aware of the same and even then, they failed to implead the legal representatives within the prescribed time and therefore the suit is liable to be dismissed.

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On hearing the rival pleadings, the learned trial Judge framed the following issues for determination in the suit :-

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“1/ tHf;if jhf;fy ; bra;a thjpfSf;F mUfij (locus https://hcservices.ecourts.gov.in/hcservices/ standi) fpilahjh ?

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2/ jhth gp ml;ltizr; brhj;ijg ; bghWj;J tHf;F mtrpa jug;gpdiu nrh;f ;fhj Fiwf;f cl;gl ;L mjdhy; epiyf;fj ;jf ;fJ ,y;iyah ?

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3/ jhth v ml;ltizr; brhj;J ijy khzpf;f brl;oahh; mwf;fl ;lisf;F ghj;jpag;gl ;ljh ?

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4/ 1tJ vjph;thjp b$ayl;Rkp mk;khs; 4tJ vjph;thjp enlr KjypahUf;F vGjpf; bfhLj;J 17/10/1977 njjpa v/rh/M/1 fpuak; rl;lg ;go bry;yj ;jf ;fjh ?

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5/ jhth V ml;ltiz kw;Wk ; gp ml;ltizr; brhj;ij bghWj;J thjp nfl;Ls ;s tpsk;g [if ghpfhuk; tH';fg ;glf; Toajh ?

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6/ thjpfs; nfl;Ls ;s epue;ju cWj;Jf; fl;lis ghpfhuk; kw;Wk ; RthjPd ghpfhuk; fpilf;fj ;jf ;fjh ?

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7/ thjpfSf;F fpilf;Fk ; ,ju ghpfhuk; vd;d ?”

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On the side of the plaintiffs, they examined P.Ws.1 and 2 and marked Exs.P1 to P3. On the side of the defendants, they examined D.Ws.1 and 2 and marked Exs.D1 to D12. On considering the oral and documentary evidences adduced by the respective parties and on hearing the submissions made by the learned counsel, the Court below dismissed the suit. Aggrieved by the same, the 6^th plaintiff alone filed the the present Appeal Suit.

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The learned counsel for the appellant would submit that there is no law which states that the person belonging to the place where a trust is situate, should file a suit. Admittedly, it is a public trust and therefore, the suit was laid on behalf of the trust and not as representing any village. The suit property originally belonged to Thaila Manicka Chettiar. He executed a Will dated 25.12.1910, thereby created various charities. When the trust was created for public charities it is a public trust and as such, the plaintiffs have locus standi to file the suit. He further submitted that admittedly, the defendants 1 to 3 executed a sale deed in favour of the 4^th defendant which is meant for performing the charities in respect of the trust. He further submitted that the plaintiffs are entitled to permit the suit either under Order 1 Rule 10 of CPC or under Section 92 of CPC. Therefore, the plaintiffs have locus standi to file the present suit.

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In fact, P.W.1 did not admit it to be a private trust. When it being so, the Trial Court ought not to have dismissed the suit. The suit properties are public trust properties and they cannot be alienated. The alienation, which were met by the defendants are not valid. In respect of his contention, he relied upon the Judgment reported in 2020 (2) LW 30 in the case of The Idol of Sri Renganathaswamy Represented by its Executive Officer, Joint Commissioner Vs. P.K. Thoppulan Chettiar, Ramanuja Koodam Anandhana Trust, Rep. by its Managing Trustee and Ors., the relevant paragraphs are https://hcservices.ecourts.gov.in/hcservices/ extracted hereunder :

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“16. The distinction between a public and private charity was set out by a Constitution Bench decision of this Court in Mahant Ram Saroop Dasji v. S P Sahi MANU/SC/0175/1959 : 1959 Supp (2) SCR 583. In that case, the Court had to determine whether the Bihar Hindu Religious Trusts Act (1 of 1951) applied to both public as well as private trusts. It described the difference between public and private charities as follows:

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6.... it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private. To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. The fact that the uncertain and fluctuating body of persons is a Section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust...

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Where the beneficiaries of a trust or charity are limited to a finite group of identifiable individuals, the trust or charity is of a private character. However, where the beneficiaries are either the public at large or an amorphous and fluctuating body of persons incapable of being specifically identifiable, the trust or charity is of a public character. This test has been consistently followed by subsequent benches of this Court, most recently in a three judge Bench decision of this Court in M J Thulasiraman v. Hindu Religious & Charitable Endowment Admn. MANU/SC/1199/2019 : (2019) 8 SCC 689. In the present case, the Deed of Settlement states that the charity is to be carried for the benefit of the 'devotees' who visit during certain Hindu religious festivals. The charity is one which benefits the public and the beneficial interest is created in an uncertain and fluctuating body of persons. The "devotees" as a class of beneficiaries are not definitive and therefore, the Respondent trust is a public trust”.

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Heard, Mr.R.Gururaj, learned counsel appearing on behalf of the appellant and none appeared on behalf of the respondents and perused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/

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The suit properties originally belonged to Thaila Manicka Chettiar. He bequeathed all of his properties by a registered Will dated 25.12.1910. In the said Will, he has created charities, accordingly, the Chatram was formed and for doing charities, such as “Desanthira Pattai Kattalai”. The sole intention of the said Thaila Manicka Chettiar is to create trust, so that various charities are performed as stated in the Trust Deed. Therefore, no other person is entitled to question the activities of the trust. P.W.1 categorically admitted that the suit property is a private trust, even then it was sold out in favour of the 4^th defendant. Only as against the sale, the present suit has been made and further he admitted that the said Thaila Manicka Chettiar created charities only for their family members. Therefore, the Court below rightly concluded that the suit trust is a private trust and the plaintiffs have no locus standi to challenge the transaction between the private trust. Therefore, the suit filed by the plaintiffs is not at all maintainable as contemplated under Section 92 of CPC.

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That apart, P.W.1 stated that in the year 1984, there was two groups fought for the post of Chairman of Arulmighu Chokkanathar Temple Trust and it led to appeal before this Court. Therefore, due to enmity, the present suit has been laid by him, since, he is only person to look after the suit. Further, the 4^th defendant purchased the suit property by a registered sale deed dated 17.10.1977, which was marked as Ex.D1. Whereas, the present suit is filed after a period of 7 years from the date of sale deed that too due to previous enmity, therefore, the suit is also barred by limitation. Therefore, the Judgment relied upon by the learned counsel for the appellant is not helpful to the case on hand.

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In view of the above, no merits in this appeal. Hence, the Appeal Suit is dismissed. No costs.

Sd/-

Assistant Registrar

//True Copy//

Sub Assistant Registrar

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Lpp

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The Additional District Judge, Fast Track Court No.II, Cuddalore.

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A.S.No.1065 of 2003

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AD(CO) https://hcservices.ecourts.gov.in/hcservices/ SB(26/11/2021)

P.Balasubramanian v. Victoria @ Balasundari Ammal(Died)

Case brief

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P.Balasubramanian v. Victoria @ Balasundari Ammal(Died)

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