1. The tenant is the revision petitioner. It is a partnership concern. The respondent trust represented by its trustees filed R.C.O.P. No. 149 of 1988
before the Rent Controller, Coimbatore, for the eviction of the revision petitioner u/s 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent
Control) Act (Act 18 of 1960 as amended by Act 23 of 1973) (hereinafter referred to as the Act) for demolition and reconstruction.
2. The case as set out in the petition was as follows:
The petition mentioned property belonged to the respondent trust. The revision petitioner was a tenant on a monthly rent of Rs.850. The building
was more than 100 years old and in a dilapidated condition. The roofing had become bad and it would collapse at any time. The neighbours had
also complained about it. The Municipal Corporation had also raised serious objections to the condition of the building as it had posed a danger to
the neighbours and it might fall at any time. Since the purchase of the property in 1981 the respondent trust had been pressing the revision
petitioner to vacate the property. On the bona fide impression that the Act would not apply, the respondent trust filed a civil suit in O.S. No.954 of
1983 before the District Munsif''s Court, Coimbatore. It was subsequently transferred to the Sub Court, Coimbatore, and as it was found that only
an eviction petition would lie, the present petition came to be filed. The building was bona fide required for the purpose of demolition and
reconstruction. The building was an eye-sore. Many modem buildings had come up in the locality. The respondent had means and the works of
demolition would be substantially commenced not later than one month and completed within three months from the date of recovery of
possession. The petitioner firm had admitted in the notice dated 13.4.1988 that the building was in a dilapidated condition and it was dangerous for
human occupation. The revision petitioner was anxious to cany out some make-believe temporary repairs solely with a view to create evidence.
The respondent had also submitted a plan for approval to the Municipal Corporation and the approved plan would be submitted before enquiry.
3. The revision petitioner firm resisted the eviction petition contending inter alia as follows:
The rent was only Rs.700 per month and not Rs.850 as claimed. The revision petitioner was a tenant even under the previous owners and it was
paying Rs.700 to the previous owner and even after the purchase by the respondent, it was paying Rs.700 as monthly rent. It was disputed that the
building was 100 years old and in a dilapidated condition and that the roofing would collapse at any time. In the suit filed by the respondent, there
was a Commissioner appointed to inspect the property. The report filed by the Commissioner would falsify the case of the respondent that it was
in a dilapidated condition. The building was in a sound and good condition. It was false to say that the Municipal Authorities have taken a serious
view to the existence of the building and that the same was in a dilapidated condition. The respondent allowed the suit before the Civil Court to be
dismissed for default and subsequently filed an application for restoration which was pending. It was not open to the respondent to agitate the
matter before two forums at the same time. The revision petitioner had been carrying on its business effectively for several years. The respondent
was deliberately interfering with the peaceful possession of the revision petitioner. The correspondence between the parties would falsify the case
of the respondent and it would clearly show that the petition was only a ruse to evict the revision petitioner. The respondent was bound to prove
the ingredients necessary to show its bona fides and to sustain its claim.
4. There was an additional counter filed by the revision petitioner questioning the means of the respondent to carry out the work of demolition and
reconstruction.
5. On the side of the respondent P.Ws. 1 and 2 were examined and on the side of the revision petitioner R.Ws. 1 and 2 were examined. Exs.P-1
to P-23 were marked on the side of the respondent while Exs.R-1 to R-5 were marked on the side of the revision petitioner. Exs.C-1 to C-4
were marked as Court documents. The learned Rent Controller found that the case of the respondent was established, that the building was old
and in a dilapidated condition, that this was a matter of admission by R.Ws. 1 and 2, that the respondent had means to carry out the work of
demolition and reconstruction and that its claim was bona fide. On the above findings, by order dated 5.4.1990 the learned Rent Controller
ordered eviction granting two months time to the revision petitioner to vacate. This was confirmed in the appeal R.C.A. No.148 of 1990 filed by
the revision petitioner on 1.4.1993 by the learned Appellate Authority, viz., the Subordinate Judge, Coimbatore. It is as against this, the present
revision has been filed.
6. Mr. Shanmugavel, learned senior counsel for the revision petitioner made the following submissions:
The Trust which came into existence on 22.3.1979 had ceased to exist on the expiry of 15 years provided in the trust deed and the order of
eviction passed in favour of a non-existent trust could not be sustained. The moment the trust came to an end the relationship of landlord and tenant
also ended. The beneficiaries, who had not come on record, should defend the revision to sustain the order of eviction passed in favour of the trust.
Again, the trust was not having finance. Only the trustees had money. There was no provision in the Trust Deed for demolition. The undertaking
given u/s 14(1)(b) of the Act was not genuine, as the trustees could not give an undertaking. The trust having come to an end, there must be a
registered deed of transfer of the assets complying with the requirements of the Stamp Act and the Registration Act and in its absence even the
beneficiaries could not get any relief.
7. In support of his various contentions, the learned senior counsel referred to the provisions of the Trusts Act, the Stamp Act and the Registration
Act. He relied on the following decisions: (1) Syed Shafee and Another Vs. S. Asmath Basha Another, Ranjit Kumar Ghosh and another Vs.
Sirish Chandra Bose and others, ; (3) S. Darshan Lal Vs. Dr. R.E.S. Dalliwall and Another, ; (4) Kolicherla Seshacharlu and Others Vs. Vidwan
Ramanujacharulu and Another, Uma Ray v. SM.Meghamala Dev and Anr., A.I.R 1989 Noc. 166 ; (6) S.V. Chidambara Pillai Vs. S.N.V.R.N.
Subramaniam Chettiar and Others, S.V. Periasamy and Sons and Others Vs. R. Senthil Kumar and Others, Arumuga Naicker (Died) and Ors. v.
T.G. Bakidhandayuthapani and Anr., 1998 (1) L W. 616; (9) Official Trustee of Tamil Nadu Vs. Udavumkarankal and Others, ; (10)
T.Thiruppathi v. Maimoon Bibi and Ors., 1981(1) M.LJ. 154: 1981 T.L.N.J. 510; (11) Dr. P.S. Salahuddin Vs. C. Shameemunnissa, ; (12) AIR
1931 196 (Privy Council) Official Assignee v. M.E. Moolla Sons Ltd, and Ors., AIR 1935 Rang. 84 ; (14) AL. PR. Ranganathan Chettiar Vs.
AL. PR. AL. Periakaruppan Chettiar, ; (15) W.O. Holdsworth and Others Vs. The State of Uttar Pradesh, (16) Commissioner of Income Tax
Vs. Ganga Properties Ltd., Baisnab Das Sen Vs. Bholanath Sen and Another, ; (18) Sardar Govindrao Mahadik and Another Vs. Devi Sahai and
Others, ; (19) Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, ; (20) Ammal Pillai and Others Vs. Varadarajulu Complex, S. Thangaswamy Vs. R.
Vinayakamurthy, and (22) Imperial Bank of India v. S.Krishnamurthi and Anr. , (1933) 85 M.LJ. 471: AIR 1933 Mad. 628.
The learned senior counsel submitted that the proceedings have to be terminated and eviction order set aside or in any event, there must be a
remand.
8. Mr.T.R. Rajagopalan, learned senior counsel, appearing on behalf of M/s. Sanjeevi and K. Muthukumaraswamy for the respondent submitted
that till the assets of the trust were handed over to the beneficiaries, the trustees had to continue, that there should be a harmonious construction of
the various clauses in the trust deed and that if it was done, the various object raised by the revision petitioner concerned could not be sustained.
The learned senior counsel also drew my attention to the provisions of Section 75 of the Trust Act in this connection. As regards the contention
that the trust did not have funds, his submission was that the materials produced would clearly show that funds were indeed available with the
trustees and the revision petitioner could not put forward lack of funds as a ground for dismissing the eviction petition. The learned senior counsel
also submitted that the trust deed indeed contained a provision for demouuon and in particular Clause 12 provided for alteration, improving or
structural repair of any building or for the execution of any other work and for that purpose, the trustees had power to apply for any money. As
regards the non-impleading of the beneficiaries, after the expiry of the trust, the learned senior counsel submitted, that it was always open to the
revision petitioner to implead the beneficiaries if it chose and it could not expect the respondent trust to bring the beneficiaries on record. On
merits, the learned senior counsel submitted that all the legal formalities required u/s 14(1)(b) had been complied with and the finding in this regard
by the authorities below could not be taken exception to. As regards the various decisions relied on by the learned senior counsel for the revision
petitioner, Mr. Rajagopalan submitted that none of the decisions would apply to the face of the present case, as they were cases relating to dispute
between trustees and beneficiaries and so far as the revision petitioner was concerned, it had no locus standi to require the provisions of the Trusts
Act be satisfied.
9. In reply, Mr. A. Shanmugavel, learned senior counsel, relied on Section 56 of the Trusts Act and the illustrations to the Section in particular and
submitted that the beneficiaries should ask for transfer of the assets of the trust u/s 56 and there must be a deed. In this regard, he relied on two
Andhra Pradesh judgments Geneshlal and Anr. v. Najamunnisa Begum and Ors., 1984 (2) A.L.T. 62 and Smt. G. Renuka Vs. M. Papa Rao, .
The trustees should get a loan of Rs.25 lakhs to put up a construction and they had no power to do that. The learned senior counsel relied on the
judgment of the Privy Council in Subramanian Chettiar v. Raja Rajeswara Dorai alias Muthwamalinga Dorai, ILR 39 Mad. 115. The learned
senior counsel also relied on following other judgments; (1) Mathalone Vs. Bombay Life Assurance Co. Ltd., ; (2) Narayan Bhagwantrao Gosavi
Balajiwale Vs. Gopal Vinayak Gosavi and Others, ; (3) Kripa Shankar D. Worah Vs. Commissioner of Wealth Tax, and (4) Zila Singh and
Others Vs. Hazari and Others, . According to him, there was no devolution of interest.
10. Before actually dealing with the points raised by Mr. Shanmugavel, learned senior counsel, let us have a look at the relevant clauses in the trust
deed. It has been marked as Ex.A-23 before the Rent Controller.
(i) One Ganesan, son of Venkataramanan has executed the trust deed in consideration of natural love and affection and has transferred a sum of
Rs. 1,000 upon trust to the beneficiaries. The above is to be held along with interest and the income including any further gifts and donations
received for the benefit of the beneficiaries by the trustees. The trustees have been given power to collect dividends, interest, rent, etc., and from
and out of the same after paying all costs, charges and expenses incidental to the collection and all outgoings, the trustees shall distribute the
balance in a certain proportion to the beneficiaries. Of the 8 beneficiaries, and the first and the second are the sons of one Subbaiyan and 3 to 8
are the sons of Maniyan. Both Subbaiyan and Maniyan have been made trustees. The trust is stated to be irrevocable. It is to be called ""Sri
Lakshmi Family Trust"". The trust deed empowers the trustees to engage in or carry on any business for and on behalf of the trust. The trustees, are
also authorised to accept gift, money or properties for the benefit of the trust from the founder settlor or any other person as an accretion to and
augmentation of the trust fund and the said accretions have to be held in trust. The trustees among other additional powers, have power to apply
any money in the erection, alteration, improvement or structural repair of any building or the execution of any other work of execution of any right
for the benefit of any land held for the same trust and the money applied thereon and therefore under the power, to let any portion of any
immovable property forming part of the trust fund at such rent and for such period on such terms and conditions as they may think fit and to accept
or surrender of any lease and to maintain banking accounts in the name of such one or more of the trustees as they may think fit and to make the
account operatable by such one or more of them as they may think fit.
(ii) The trust shall be in force for a period of 15 years, though it could be terminated earlier by the unanimous decision of the trustees and the
beneficiaries or their guardians if the beneficiaries are minors. On the termination of the trust, the trustees shall pay and deliver to the beneficiaries
or to their guardians in case the beneficiaries are minors at that time, all trust funds, investments and accumulations whatsoever including the income
of the trust not till then distributed to the beneficiaries in the same proportion as the income of the trust has been distributed to the beneficiaries and
the trustees shall also render to the beneficiaries a true account of all the dealings during the period of trust and thereupon, the trust shall stand
terminated, (iii) The period fixed is under Clause 20 and under Clause 21, the trustees are required to render to the beneficiaries a true account of
all the dealings during the period of trust and only after they complete this, the trust shall stand terminated.
11. u/s 77 of the Trusts Act, a trust is extinguished (a) when its purpose is completely fulfilled or (b) when its purpose becomes unlawful or (c)
when the fulfillment of its purpose becomes impossible by destruction of the trust property or otherwise or (d) when the trust being revocable, is
expressly revoked.
12. We are concerned here only with Sub-clause (a), i.e., whether the purpose is completely fulfilled. A conjoint reading of Section 77 of the Trust
Act and Clause 21 in the trust deed would clearly show that the trust in the instant case would get extinguished only on the completion of what is
set out in Clause 21 of the Trust Deed. The trust, in the instant case, had acquired an immovable property in respect of which the present eviction
petition came to be initiated. The trustees have indeed been given power to apply any money of the trust in the erection, alteration, improvement or
structural repair of any building on or the execution of any other work on or the acquisition of any right for the benefit of any land held on the same
trust as the money applied thereon or therefore under the power given under the trust deed. It was only in this connection the learned senior
counsel Mr. Shanmugavel relied on the decision in Thiruppathi v. Maimoom Bibi and Ors. 1981 (1) M.L.J. 154 :1981 T.L.N.J. 510 and
contended that the trustees did not have authorisation to demolish an existing building. In that case, as to what is demolition and what is erecting a
new building have been explained. The demolition is to obliterate substantially the old building and the construction must bring into being a new
building. ""A new building"" would indicate something different from what was in existence on the property or on the site to be more accurate, must
be brought into being after demolition. One cannot expect the draftsman to incorporate the very words in Section 14(b) of the Act, in the trust
deed. The clause in the trust deed already referred to would clearly show that the trustees are clothed with the power to demolish and reconstruct
the trust property. The words erection, alteration, improvement or structural repair of any building would take in demolition and reconstruction as
well. The contention in this regard by the learned senior counsel is therefore rejected. At the time the eviction proceedings were initiated, the
trustees had necessary power to apply for eviction on the ground of demolition and reconstruction. That power had been validly exercised by the
trustees. It is in serious doubt as to whether the petitioner has any locus standi to question the powers of the trustees. The trustees are if at all,
answerable to the beneficiaries. It is not open to the tenant to contend that the trustees did not have this power or that power. If the trustees
exceeded the power given under the trust deed, it is the beneficiaries who can put the trustees in the dock.
13. The learned senior counsel relied on two decisions of this Court in support of his contention that after 1993 it would not be open for the
trustees to continue the eviction petition. They should leave the stage and make room for the beneficiaries. The first of the decisions is M.A. Abdul
Rahiman, Adbul Rahim etc. v. A.P. Abdulla, 1967 (80) L.W. 54 Alagiriswami, J. (as the learned Judge then was) in a case where pending a
revision petition by a landlord against the order of the lower Court refusing to grant eviction, the property was sold to a third party and thereupon
the tenant filed an application in the revision stating that the revision petition should be dismissed, it was held that the application for eviction on the
ground that the landlord wanted to demolish the building and reconstruct was on a consideration personal to the landlord and if he wanted to do
so, it was for him to put in an application. On the same analogy, the learned senior counsel submitted that the beneficiaries had come on the picture
after 1993 and they might or might not want the eviction order on the ground of demolition and reconstruction to be pursued and the present
eviction petition by the trustees alone, in the array had to be dismissed. In my considered view, the decision will not apply to the facts of the
present case. The case relied on by the learned senior counsel is a case where eviction was refused. The landlord was the revision petitioner before
this Court. There was no order of eviction in his favour. It was at that stage he sold away the property. The tenant was justified in bringing it to the
notice of the Court and seeking dismissal. So far as the present case is concerned, there is an order of eviction in favour of the trust. The
beneficiaries have not been impleaded. The very eviction petition was for the benefit of the beneficiaries. Unless the revision petitioner brought the
beneficiaries on record and produced any material to show that they did not want to revision petitioner to be evicted on the ground of demolition
and reconstruction, the revision petitioner cannot take advantage of the ratio of the decision of Alagirisami, J.
14. Equally, the decision in Syed Shafee and Another Vs. S. Asmath Basha Another, would not help the petitioner. In that case, two landlords
filed a petition for the eviction of a tenant on the grounds of sub-letting and personal use. Eviction was ordered for personal use only. On appeal by
the landlords, the Appellate Authority found that the tenant had sub-let and ordered eviction on that ground also. The tenant filed a civil revision
petition in the High Court. During the pendency of the petition, the respondents sold the property to two other persons. Those two were not
brought on record. The respondents admitted the mistake, but desired to continue the proceedings. Sivasubramaniam, J. held that,
As on date, the respondents had lost their title to the property and as such the substratum of the eviction petition had gone. It was no longer open
to them to continue those proceedings in the absence of the real owners who were alone entitled to prosecute those proceedings and evict the
tenants. The Court had to take note of subsequent events.
It was held that the respondents had no locus standi to continue the proceedings and evict the petitioners therein. The eviction proceedings were
terminated. This analogy is also not applicable to the present case.
15. The learned senior counsel relied on a judgment of the Calcutta High Court in Commissioner of Income Tax Vs. Ganga Properties Ltd., . In
that case, under an oral agreement dated March 27,1956, the assessee agreed to sell a property to another person and according to this
agreement, delivery of possession was given to the purchaser on March 29,1956. The purchaser paid the whole of the consideration money on the
16th April, 1956 and this amount was credited in the assessee''s books in the suspense account. An agreement of sale was drawn up on April 28,
1956. The deed of conveyance transferring the property was executed only on the 17th March, 1958 and it was registered on the 8th July, 1958.
The Income Tax Officer held that ownership was not transferred until registration of the deed of conveyance and during the accounting year in
question the ownership remained vested in the assessee. He, accordingly, included the property''s bonafide annual value in the assessee''s total
income. The Appellate Assistant Commissioner was also of the same view. The Tribunal, however, was of opinion that though the assessee
remained the legal owner the beneficial ownership passed to the purchaser on the 29th March, 1956 and that u/s 9 of the Income Tax Act, the
income from the property was assessable in the hands of the beneficial owner, i.e. the purchaser and not the assessee. On a reference to the High
Court, it was held that
(i) In the case of a sale of immovable property a registered document is necessary to give effect to the sale and the sale takes effect only from the
date of execution of the document;
(ii) In Indian law beneficial ownership is unknown, there is but one owner, namely, the legal owner, both in respect of vendor and purchaser and
trustee and cestui que trust, and
(iii) the expression income from property used in Section 6 and Section 9 of the Indian Income Tax Act, 1922, refers to the income of the legal
owner of the property and he is the only person assessable to lax on the basis of the bonafide annual value thereof.
The learned senior counsel wanted to rely on this case for the purpose of showing that the trustees ceased, to be otoners on the expiry of the trust
in the year 1994 and therefore, they could not continue to maintain the eviction petition. In the case decided by the Calcutta High Court, in as much
as the actual sale deed had not been executed, though an agreement had been entered into between the parties, it was held that the seller continued
to be the owner. In ray view, on the same analogy, as long as Clause 21 of the trust deed in the instant case had not been given effect to, the
trustees will continue to be the legal owners for the purpose of evicting the revision petition. Instead of supporting his case, this case is against the
contention of the learned senior counsel for the revision petitioner. According to Section 3 of the Indian Trust Act, 1882, the beneficial interest or
the ""interest of the beneficiary is the right against the trustees as owner of the trust property. A cestui que trust when in possession was protected in
his enjoyment of the rents and profits and treated as if he were the owner. Only for the purposes of analogy, the relationship created by contract
between a vendor and a purchaser was described as that of trustee and cestui que trust and the contract was held to give the purchaser an
equitable estate in land.
16. As pointed out in Webb v. Macpherson, 13 M.L.J. 369 : I.LR. 31 Cal. 57:
The law of India, speaking broadly, knows nothing of the distinction between legal and equitable property in the sense in which that was
understood when equity was administered by the Court of Chancery in England"".
17. In the case of AIR 1931 196 (Privy Council) relied on by the learned senior counsel, it has been held that,
The Indian law does not recognise legal and equitable estates. Therefore there can be but one owner and where the property is vested in a
trustee, the owner must be the trustee and the trustee is the owner of the trust property, the right of the beneficiary being in a proper case to call
upon the trustee to convey to him.
To the same effect is the decision of the Rangoon High Court in Official Assignee v. M.E. Moolla Sons Ltd and Ors., AIR 1935 Rang. 84. In the
case, it was held that,
The vendor under an unregistered contract for the sale of immovable property by reason of what he had said or done cannot be treated as holding
the property as a trustee for the purchaser.
18. In Nawab Kazim Nawaz Jung and Ors. v. H.E.H. Nawab Mir Barkat Ali Khan Bahadur and Ors., 1984 A.L.T. 61, it has been held with
reference to Section 56 of the Indian Trusts Act that:
the said Act enacts that the beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the
beneficiary''s interest, that where there is only one beneficiary and he is competent to contract or where there are several beneficiaries and they are
competent to contract and all are of one mind, he or they may require the trustee to transfer the trust property to him or them or to such person as
he or they may direct. Where there are more than one beneficiary and if all of them being competent to contract demand transfer of the trust
property to them, the trustees are left with no option except to transfer the trust property to them.
19. In Smt. G. Renuka Vs. M. Papa Rao, , dealing with Section 56 of the Indian Trusts Act, the Andhra Pradesh High Court held that the said
Section enables the beneficiary to file a suit for recovery of trust property. In that case, the question arose as to whether a suit by the wife was
maintainable u/s 6 of the Dowry Prohibition Act, 1961 for recovery of dowry amount held in trust by father-in-law or the person who received it
for her benefit if he fails to transfer the said amount within the prescribed period of three months inspite of prohibition of taking or giving dowry u/s
3 of the Act. It was held that such a suit was maintainable and the person with whom the dowry was available would be a trustee.
20. In Uma Ray v. Meghamala Dev and Anr. , AIR 1989 Noc. 166, it was held that a landlord, unless he was the owner/ landlord, could not
maintain a suit for eviction. In that case, the suit premises were being managed by a trust and it was held that the trustee in law was the legal owner
of the property and the beneficiary could not maintain a suit for eviction.
21. So far as the present eviction proceedings are concerned, the revision petitioner is answerable only to the trustees, who had initiated the
proceedings on behalf of the trust If any problem arises between the trustees and the beneficiaries it is upto them to resolve the same. It is not for
the revision petitioner to poke its nose into their affairs.
22. The learned senior counsel relied on the judgment of the Supreme Court in Ranjit Kumar Ghosh and another Vs. Sirish Chandra Bose and
others, . The litigation in that case related to appointment of a trustee with regard to the properties settled in trust by one lady. The Trust Deed was
dated February 7, 1945. When the matter was taken up to the Supreme Court and was called for hearing, a preliminary objection was raised by
the counsel for the respondents that the appeal had become infructuous in view of Clause 4 of the trust deed reading as follows:
After the determination of the aforesaid trust and upon the death of all the aforesaid beneficiaries, the trustees or their heirs shall forthwith convey
and transfer the trust property -to the then surviving heirs of the husband of the settlor.
In that case, all the beneficiaries had expired. Clause 4 became operative. The property had to be conveyed and transferred as envisaged by that
Clause and therefore, the question of appointment of a trustee did not survive and this preliminary objection raised was sustained by the Supreme
Court.
23. The learned senior counsel relied on the above decision of the Supreme Court and submitted that there must be a deed executed, stamped as
per the provisions of the Stamp Act under Article 62(e) and registered as required u/s 17(1) of the Registration Act. I do not agree, unless the trust
deed contemplates any such thing to be done, the contention of the learned senior counsel cannot be accepted. Subject to the trustees satisfying
Clause 21, the assets would stand transferred to the beneficiaries. Thereafter, the trust would stand terminated. The decision of the Supreme Court
will not apply.
24. The learned senior counsel then relied on the judgment of the Calcutta High Court in Baisnab Das Sen Vs. Bholanath Sen and Another, . In
that case, the facts were as follows:
A, as the trustee of the suit premises appointed under a Deed of Trust instituted ejectment suil against B for eviction from a part of the premises
and obtained a decree. The decree was affirmed in the first appeal and when a second appeal was pending, the beneficiary C on his application
was added as party respondent as it was considered desirable that the second appeal should be heard in his presence. After the ejectment decree
was affirmed in second appeal. C sought to put the decree into execution by filing an application for execution along with an application describing
it as one under Order 1, Rule 10 and Order 21, Rule 16. It was alleged in the application that it was provided in the trust deed that the trustee A
should after paying the necessary and reasonable expenses hold the balance out of the rents and profits of the property and make over the same to
C along with the transfer of the premises to C on his attaining majority. On allegations that A failed to render any accounts or make over sums due
to C, C filed a suit in the original side against A for a decree directing him to convey the premises and render accounts. C prayed for being added
as party plaintiff in ejectment suit with leave to execute the decree against B for recovery of possession of the suit premises. B filed an application
u/s 47 challenging the right of C to execute the decree.
It was held that,
C had no right to execute the decree in place of, or jointly with A in his case. The application u/s 47 of the Code filed by B should, therefore,
succeed. The intention of the settlor as expressed in the trust deed was that the trustee would convey and transfer the property in question on his
attaining majority. In the absence of such conveyance or transfer by the trustee of the suit property C cannot execute the decree u/s 146 read with
Order 21, Rule 10. There was no assignment, creation or devolution of interest in the property during the pendency of the suit as required by
Order 22, Rule 10 of the Code nor had the decree been assigned as mentioned in Order 21, Rule 16 of the Code.
It was further observed that,
In India there was no such thing as equitable ownership and when property was vested in the trustee, the owner was the trustee. The beneficiary
could only have rights against the trustee which were laid down by the Trusts Act. Section 3 of that Act expressly says: ""the beneficial interest or
interest of the beneficiary was his right against the trustee as the owner of the trust property"", the right of the beneficiary was the right to call upon
the trust to administer the property so as to pay the beneficiary his dues according to the provisions of the trust u/s 55 of the Act or in a proper
case to convey the property to the beneficiary u/s 56 of the Act.
25. As already noticed, the terms of the trust deed in the present case do not contemplate the execution of any conveyance. The trust would get
terminated on the trustee rendering to the beneficiaries a true account of all the dealings during the period of trust and thereupon, the trust would
stand terminated. If the beneficiaries seek transfer then it is always open to them to invoke Section 56 of the Trusts Act. But, it is not mandatory,
subject to the provisions of the instrument of the trust, the beneficiary has a right to the rents and profits of the trust property. In Indian Law, the
beneficiaries having no separate estate as in English Law, they have only right to proceed against the trustee. Where the beneficiary is solely and
absolutely entitled to the property, the right to the rents and profits is'' only part of the larger right to which he is entitled as the absolute beneficial
owner of the trust property. In fact, as per Section 55 of the Trusts Act, the right of the beneficiaries is against the trustees and not against the
tenant in possession of the properties. The statutory right is against the trustee. The contractual agreement is between the trustee, the owner and the
lessee. It is the obligation of the trustee to enforce the terms of the agreement between him and the lessee and correspondingly it is the right of the
beneficiary to enforce this obligation and recover them from the trustee. In the present case, the beneficiaries could not have filed the eviction
petition. The eviction petition filed by the trustees was perfectly in order and Clause 21 of the Trust Deed has to be fulfilled for the trust to come to
an end. It has not yet been done and the action initiated by the trustees for the eviction of the revision petitioner is yet to get terminated.
26. The learned senior counsel referred to a number of decisions under the Trusts Act and I will refer to those decisions for the sake of
completeness. The first of the decisions is the one reported in Subramanian Chettiar v. Raja Rajesara Dorai alias Muthuramatinga Dorai,I.L.R. 39
Mad. 115. In that case, the Judicial Committee upheld the decision of the High Court on the evidence and the construction of the settlement and
under the circumstances of the case, the power of the trustee was not exercised properly and reasonably and in the interest of the trust estate, that
the deed of compromise was entered into by the trustee was not valid and even if the deed of compromise could be supported on other grounds it
was invalid as not complying with the condition imposed by Section 462 of the Code of Civil Procedure, 1882, in that, one of the parties to the suit
being a minor, the sanction of the Court to the making of the compromise had not been obtained.
27. In my considered view, the principle will be applicable only when an dispute arises between the trustee and the beneficiary and it has no
application to the facts of the present case.
28. The next decision is Mathalone Vs. Bombay Life Assurance Co. Ltd., . This decision is for the proposition that a trustee cannot be asked to
invest his own money for the benefit of cestui que trust. The Supreme Court on the facts of that case held that the trustee was under no obligation
to find a heavy sum of money and to invest it on the purchase of new shares for the benefit of the cestui que trust and to recover the amount after
having invested it in them. The law as laid down by the Supreme Court is to the effect that the trustee is not under any obligation to invest his own
moneys for the benefit of the ''cestui que trust'', that is to say that it cannot compel a trustee to so invest. That is not the same thing as saying that if
a trustee is willing to so invest, any third party can object to the same. As pointed out by the Supreme Court, it was left to the option of the trustee
to pay from his own pocket the necessary application money for purchase of shares and then recover it from the bank. Such a demand could not
be made on a trustee and for the benefit of the ''cestui que trust'', and for the trust was under no obligation to find a heavy money of new shares for
the benefit of the ''cestui que trust'' and to recover the amount after having invested it in them. The decision instead of supporting the case of the
revision petitioner, only supports the case of the respondent. It is in evidence that the trustees and their wives are willing to spend their moneys for
the purpose of demolishing the existing building and put up a new construction notwithstanding the fact that the trust by itself may not! have nay
funds. It has been held in Ammal Pillai and Others Vs. Varadarajulu Complex, , that it is not necessary that the landlord alone should invest the
amount. Financial assistance from other persons can be availed of. As already pointed out, it is a matter entirely between the trust and the ''cestui
que trust'' and the revision petitioner being a third party, can well keep off.
29. The next decision is Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, . It arose under Sees. 14 and 19 of the
Indian Trusts Act and it is for the position that a trustee must not mix the trust property with the private property because he undertakes a heavy
burden of proving that any particular property is his distinct from the trust. This case has also no application to the case on hand, the revision
petitioner need not play the role of a Good Samaritan to involve itself in any possible future dispute between the trustees and the cestui que trust.
30. The next decision is Kripa Shankar D. Worah Vs. Commissioner of Wealth Tax, . In that case, the difference between the two expressions
on behalf of and for the benefit of is reiterated. The principle no doubt, is that the trustee is the legal owner of the estate as long as he continues to
be the trustee. He holds the trust property on his own behalf and not on behalf of the beneficiaries. No doubt, the trust estate is for the benefit of
the beneficiaries and the trust holds that for that benefit, it cannot be said that he holds that estate on behalf of the beneficiaries. The Patna High
Court referred to the decision of the Supreme Court in W.O. Holdsworth and Others Vs. The State of Uttar Pradesh, , where the Supreme Court
has pointed out the distinction between the expressions ""on behalf of and ""for the benefit of. The Supreme Court emphasized that the position of a
trustee is similar to that of a owner. He is usually the legal owner of the trust property or the trust estate and holds it for the benefit of the cestui que
trust. The Supreme Court referred to the definitions of the words ""trust, trustee, beneficiary, beneficial interest, trust property and trust money"".
The learned senior counsel laid particular emphasis on paragraphs 23 to 26 of the judgment of the Supreme Court, which held that the trust is the
legal owner of the trust property and property vest in him as such and that he holds the property for the benefit of the beneficiaries, but not on their
behalf. These two expressions are not synonymous with each other, but convey different meanings. The former connotes a benefit, which is
enjoyed by another, thus bringing in a relationship as between a trustee and a beneficiary or ''cestui que trust'' the latter, connotes an agency which
brings about a relationship as between principal and agent between the parties, one of whom is acting on behalf of another. The trustee would not
be included in the description of common manager, receiver, administrator or the like so as to attract the operation of Section 11(1) of the Trusts
Act,
31. The next decision is the one reported in AL. PR. Ranganathan Chettiar Vs. AL. PR. AL. Periakaruppan Chettiar, . That was a case where the
question arose as to whether one of the parties to compromise involving a minor''s interest constituted himself as a trustee, and whether he could be
trustee against breach of trust. Having regard to the facts and circumstances of that case, the Supreme Court held that, ""trusteeship is a position
which is to be imputed to a person on clear and conclusive evidence of transfer of ownership and of the liability attached to such ownership on
account of confidence reposed and on such liability having been accepted by the alleged trustee. The emphasis is that there must be transfer of
ownership. As long as there is no such transfer of ownership in respect of any asset in favour of an individual, there can be no question of that
individual becoming a trustee. . There is the further requirement of such individual accepting such trusteeship. Indeed, under law the investment of
funds by a trustee with himself would constitute breach of trust. Whatever it is, so far as the revision petitioner is concerned, it is beyond its ken. It
has no say in the relationship between the trustees and the ''cestui que trust''.
32. The learned counsel then relied on the judgment of a Bench of this Court in Imperial Bank of India v. S. Krishnamurthi, (1933) 85 M.L.J. 471:
AIR 1933 Mad. 628, where the trustee was found fault with for making an investment not authorised by Section 20 of the Trusts Act. It is one of
interpretation as to whether there is valid authorisation by the trust deed in the instant case in favour of the trustees to ask for demolition and
reconstruction as per the terms of the deed. 1 do not agree with the contention of Mr. Shanmugavel that there is no authorisation in the instant case
to the trustees to apply for demolition and reconstruction.
33. In Official Trustee of Tamil Nadu Vs. Udavumkarankal and Others, , the Supreme Court held that there was breach of trust on the part of the
official trustee in not taking permission of the High Court before demolishing an existing structure and constructing a new one and undertaking
expenditure over and above the sanctioned limit by the Court. As per the terms of the trust deed in the instant case, there is no question of applying
to the Court for permission to demolish and reconstruct. The trust deed in terms provides for such a move on the part of the trustees. There is no
breach of the terms of the trust or the provisions of the Indian Trusts Act. It is not the case of the revision petitioner that any permission from Court
is to be obtained before embarking on an applications u/s 14(1)(b) of the Act for demolition and reconstruction.
34. In my considered view, none of the decisions relied on by the learned senior counsel for the revision petitioner will have application to the facts
to the present case. No doubt, the amount of study put in by the learned senior counsel evokes great admiration and should be a model for any
aspiring lawyer.
35. The learned senior counsel relied on the decision of a Division Bench of the Allahabad High Court in S. Darshan Lal Vs. Dr. R.E.S. Dalliwall
and Another, , and submitted that by virtue of Clause 20, the trust has come to an end on 22.2.1994 and from that day the trustees have to
disappear from the scene and they cannot continue to pursue the action initiated by them during the currency of the trust. In the decision of the
Allahabad High Court, it has been held that ""once the terms of the trust are fulfilled, the trustee is automatically discharged though its liability to
render account remains"". This contention on the part of the learned senior counsel overlooks what is contained in Clause 21 of the Trust Deed. To
render an account does not mean that it involves only rupees, annas and pies. Accounting comprehends a more onerous duty relating to the
activities of the trust, the proper functioning of the trust during the stewardship of the trustees. The accounting in the instant case contemplates that
the trustees have to account to the ''cestui que trust'' as to the steps taken by them to advance and complete the jobs entrusted to them under the
Trust Deed, how they went about the same and how well they discharged their duty. They had applied to the Municipal Corporation for
permission to demolish and reconstruct, obtained a plan and permit for the said purpose and initiated proceedings before the Court of law, which
ended in favour of the trust. Merely because the period for which the trust was made effective expired during the pendency of the revision before
this Court, would not ipso facto require the trustees to bid farewell and get out. They have to complete the job undertaken, they have to resist the
civil revision petition and if further proceedings are taken by the revision petitioner, to contest the same and for the said purposes, the terms of the
trust must be deemed to continue. Unless and, until these things are completed and possession handed over to the cestui que trust, it cannot be said
that the trust had got terminated on the expiry of the period fixed by the trust deed.
36. The learned senior Counsel relied on the judgment of the Supreme Court in Zila Singh and Others Vs. Hazari and Others, . It was a case
where there was a decree in favour of pre-emptor. There was a sale by pre-emptor to a third party. The question arose whether the purchaser
could apply for execution of a decree. It was held that the decree in a suit for pre-emption is not a personal decree, though it indeed created
interest in land, the subject matter of pre-emption. The Supreme Court held that the statutory right of pre-emption, though not amounting to an
interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt. In that
case it was held that, ""the lands having been sold by the decree-holder after perfecting this title and purchased by the appellants before the
Supreme Court, they would be persons claiming under the original pre-emptor decree-holder and if the original pre-emptor decree-holder could
have made an application for execution of the decree as decree-holder, the appellants before the Supreme Court as purchasers of land from the
decree-holder would certainly be claiming under him and therefore their application for execution would certainly be maintainable u/s 146 of the
Code of Procedure Code.
37. Mr. T.R. Rajagopalan learned senior counsel for the respondent, relied on under Order 22, Rule 10 of the CPC and submitted that the
proceedings could continue. In the connection he referred to a number of judgments. In (Kunnath Veetil) Ittunan Panikkar Vs. (Natuvila
Madhathil) Narayana Bharatikal and Others, , a Division Bench of this Court has held that,
a trustee who files an action which is properly framed and constituted at the time of its institution does not cease to be entitled to maintain and
continue the suit merely be reason of his removal from office during the pendency of the suit. In such a case the policy of the law is that the decree
that may be obtained by him will enure for the benefit of the trust itself and may be enforced by his successor if there be one.
In Gordhandas Madanlal and Anr. v. Bhagwandas Rampersad and Ors., AIR 1933 Sind. 232, the estate of the deceased had originally vested in
trustees who filed a suit. Subsequently, Official Receiver was appointed Receiver of the estate which then vested in him. He refused to be joined as
a party to the suit filed by the trustees. It was held by the Additional Judicial Commissioner, Sind, that ""there was no objection to the suit being
continued by the trustees. Even though the Official Receiver declined to be added as a plaintiff, he would be bound,
In Joti Lal Sah and Others Vs. Sheodhayan Prashad Sah and Others, , it has been held that,
a person who institutes a litigation may prosecute it to its conclusion notwithstanding a devolution of his interest in the property. The litigation will
continue in his name for the benefit of his successors.
The Court has further observed that,
in the alternative the Civil Procedure Code, Order 32, Rule 10 provides that by leave of the Court the successor in interest may get himself
substituted as plaintiff. This is a provision against the danger that the original plaintiff being no longer interested in the proceedings not vigorously
prosecute them or may even collude with the adversary. In such a case the successor in interest who has not got himself substituted is bound by the
decision and has no remedy. No doubt, Order 22, Rule 10 gives the Court a discretion in allowing or refusing such an application by the successor
in interest, but leave should not be unreasonably refused.
In Shri Rikhu Dev, Chela Bawa Harjug Dass Vs. Som Dass (Deceased) through his Chela Shiam Dass, , dealing with the scope of Order 22, Rule
10, the Supreme Court in para 8 observed as follows:
This rule is based on the principle that trial of a suit cannot be brought to an end merely because the interest of a party in the subject matter of the
suit has devolved upon another during the pendency of the suit but that suit may be continued against the person acquiring the interest with the
leave of the Court. When a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the
representative, the rule that has to be applied is Order 22, Rule 10 and not Rule 3 or 4, whether the devolution takes place as a consequence of
death or for any other reason. Order 22, Rule 10, is not confined to devolution of interest of a party by death, it also applies if the head of mult or
manager of the temple resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager of the
temple may be substituted as a party under this rule. The word interest which is mentioned in this rule means interest in the property, i.e., the
subject matter of the suit and the interest is the interest of the person who was the party to the suit,
38. In a recent decision reported in Dhurandhar Prasad Singh v. Jai Prakash University and Ors., 2001 (5) Supreme 278, it has been held that,
In a case of devolution of interest during the pendency of a suit was postulated under Order 22, Rule 10, C.P.C., application seeking leave to
implead successor in interest can be filed by any person. But the decree passed against the predecessor in interest, without bringing the successor
in interest on record would not make the decree a nullity and the same could be executed against such a person who was not impleaded as a
party.
It has been further held by the Supreme Court that, it is not as if the
application under Order 22, Rule 10, C.P.C. seeking leave of the Court is required under law to be filed by the person alone upon whom interest
has devolved during the pendency of suit and by nobody else.
39. Per contra, Mr. A. Shanmughavel, learned senior counsel, contended that the provisions of Order 27, Rule 10 of the CPC would not apply to
the facts of the present case. The said rule provides for continuance by or against a person of any action, who acquires any interest either by
assignment, creation or devolution during the pendency of suit with the leave of the Court and in ascertaining whether a person can maintain the
application his averments in the application would have to be taken as the basis under Order 22, Rule 10, C.P.C. According to the learned senior
counsel this is not a case of devolution of interest but one where the trust has come to an end. For ihe reasons set out elsewhere, I do not agree
with this contention of the learned senior counsel.
40. The learned senior counsel then relied on a decision of Srinivasan, J. (as the learned Judge then was) in S.V. Chidambara Pillai Vs.
S.N.V.R.N. Subramaniam Chettiar and Others, . That was a case in which the landlord applied for demolition and reconstruction u/s 14(1)(b).
Pending the petition for eviction the landlord sold the building to a third party. The petition for impleading the purchaser as party in the eviction
petition was allowed, affirmed in appeal and the revision therefrom was dismissed by the learned Judge. The learned Judge while dismissing the
revision observed that ""evidence had not been let in and the questions whether there was an undertaking as contemplated u/s 14(1)(b) of the Act
by the purchasers when they were brought on record and whether the purchasers proved their bonafide requirement of the building for the
purposes of demolition and reconstruction had to be gone into in the main R.C.O.P. after evidence was let in."" The learned Judge distinguished the
decision of Alagiriswamyy J. in M.A. Abdul Rahim v. A.P. Abdulla, 1967 (80) L W. 54 which has already been referred to. This decision also has
no application to the facts of the present case. The beneficiaries are not before Court and even if they are there they need not prove their bona
fides. Beneficiaries are not transferees.
41. The last of the decisions relied on by the learned senior counsel is the one reported in S.V. Periasamy and Sons and Others Vs. R. Senthil
Kumar and Others, . It was a case of a purchase pending the eviction proceedings. The learned Judge elaborately dealt with the effect of such a
transfer u/s 8 of the Transfer of Property Act and on a reading of the document in the proceedings, held that from the date of sale the vendor
ceased to be the owner and all his rights over the property had been conveyed to the purchasers. It was held that once the transfer took place, the
arrears of rent due to the transferor became a debt and lost its character of arrears of rent and the same could be transferred as an actionable claim
coming u/s 130 of the Transfer of Property Act. The relationship of landlord and tenant ceased as between the original owner and the tenant and
the original landlord became only a creditor and the tenant became a debtor and the eviction petition on the ground of default in payment of rent
thereafter could not be continue neither by the previous landlord or by the purchaser on the basis of the same cause of action. The other ground
raised in that case related to demolition and reconstruction and it was held by the learned Judge that the bonafide proved by the vendor would not
be sufficient so far as the purchasers were concerned, that the qualification of a vendor could not be the qualification of the purchaser. Even if the
building required demolition and reconstruction, whether the purchaser had the means or whether his claim continued to be bonafide had to be
investigated by the Rent Control Court. The learned Judge further held that the benefit of the undertaking in the eviction petition by the previous
landlord would not avail to the new owner. Even if the purchaser had got the means, whether he wanted to demolish the building, only as an
oblique motive without any intention to put up construction, was a matter which required consideration. In that view, the learned Judge held in
favour of the tenant in that case.
42. I have no hesitation in observing that the ratio has no application to the facts of the present case. This is a case where having regard to the
nature of the building, the trustees though is fit to apply for demolition and reconstruction. That they did for the benefit of the trust. The resultant
benefit would pass on to the cestui que trust.
43. In a later decision in Arumuga Naicker and Ors. v. T.G. Baladhandayuthapani and Ors., 1998 (1) L.W. 616, in a case where there was sale
of the property after the revision was disposed of by this Court and the case went upto the Supreme Court and the Supreme Court remanded the
matter to this Court, the same learned Judge set aside the orders of die authorities below and remanded the matter to the Appellale Authority for
the limited purpose of recording a finding as to the bona fides of the purchaser in seeking eviction. The new owner was directed to adduce
evidence and the tenants were given opportunity to rebut the case of the purchaser. This case has no application to the facts of the present case.
44. The only question remaining for consideration is as regards the merits of the claim whether a case has been made out for demolition and
reconstruction. On this both the authorities below have concurrently held that the building is in a dilapidated condition and it requires immediate
demolition and reconstruction. In coming to mat conclusion, the authorities below relied on the report and the plan of the Advocate Commissioner
and the report of the Engineer as also the oral evidence let in on behalf of the petitioner concern itself. This aspect has been very elaborately dealt
with by both the authorities. In the report of the Advocate Commissioner, it is stated that there were a few cracks on the wall, that there was a
wooden roofing on the northwestern side portion and it was supported by a bamboo post and that on the ceiling there were a four holds found on
the western side. In the wooden steps there were cracks in few places. The relevant portion of the report of the Advocate Commissioner runs as
follows:
The wooden rafters had fallen down. It was a terraced building with Madras tiles roofing. The staircase had been decayed. It may fall at any time.
The electric connection was even without covering in some placed. It was very dangerous for the occupants. The age of the building was about 60
years. The terrace was constructed with mud mortar and it gave way at four places and sun light goes inside through those holes. The building may
collapse at any lime"".
It is also seen that the corporation has served notice on the respondent that the building is in dilapidated condition and it has to be demolished as
otherwise it would endanger the life of the inhabitants and the neighbours. No exception can be taken to the finding reached by the authorities
below regarding the condition of the building that it requires immediate demolition and reconstruction. Equally no exception can be taken to the
finding reached by the authorities below that the requirement of the trust for demolition and reconstruction is bona fide. The criteria laid down by
the Supreme Court in Vijay Singh etc. etc. Vs. Vijayalakshmi Ammal, are fully satisfied in the present case. The ratio in Vijay Singh''s case, has
been followed by this Court in several subsequent decisions.
45. In Ammal Pillai and Others Vs. Varadarajulu Complex, dealing with Section 14(1)(b), the learned Judge has said that the standard required
with regard to the condition of the building is not that it is in a dangerous condition and that it may collapse at any time. Locality, how far the
particular area could be put to better use if a modem building is put up, whether any development has taken place; what are the economic
advantages that the parties can obtain, are all matters of relevance along with physical condition of the building. The views of the landlord as owner
of the building are also of some importance. See also S.M. Ispahani and another Vs. Harrington House School, .
46. As regards the means, it has already been noticed that the trustees and their wives have adequate means to take up the work of demolition and
reconstruction. Two of the beneficiaries are the children of one of the trustees and the others are the children of the other trustee and nobody can
take exception to the trustees spending their money. If any problem arises later on between the trustees and the beneficiaries, it, is upto them to
have the same resolved and so far as the revision petitioner is concerned, it has no locus standi.
47. For all the reasons stated above the revision fails and the same is dismissed. There will however be no order as to cost.
