Honourable Mr. Justice G. Rajasuria
1. This second appeal is focussed by the defendants in the suit as against the judgement and decree dated 19.10.2000 passed by the II Additional
District Judge, Coimbatore, in A.S. No. 100/2000 confirming the judgement and decree dated 31.1.2000 passed by the IV Additional District
Munsif Court, Coimbatore in O.S. No. 413 of 1998, which was one for mandatory and permanent injunctions. The parties, for the sake of
convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this second appeal, in a
few broad strokes can be encapsulated thus:
(i) The respondent herein-Gnanaprakasam claiming to be the son of Arumugam, filed the suit O.S. No. 413 of 1998 seeking the following reliefs:
to pass a judgement and decree in favour of the plaintiff against the defendants;
i) directing the defendants to remove all unauthorised construction made by the defendants in the suit property.
ii) For consequential relief of permanent injunction restraining the defendants, their men, agents, servants should not give any disturbance to the
plaintiff''s maintaining the suit property.
iii) Award the cost of the suit.
(extracted as such)
on the main ground that the property described in the schedule of the plaint measuring an extent of 40 cents of land was dedicated by his
grandfather, namely, Kuppu Pillai, son of Viyapuri Pillai, vide gift settlement deed-Ex. A1-dated 18.2.1936 for the purpose of benefiting five Hindu
temples, namely,
(i) Vaiyampalayam Sri Venugopala Koil
(ii) Kottaipalayam Sri Vigneshwara Temple
(iii) Thirumalaichettipudur Sri Thiruvengadaperumal Temple
(iv) Thirumalaichettipudue Mariamman Koil
(v) Thirumalai Chettipudur Sri Vigneswarar Temple to the effect that the trustees appointed by the said Kuppu Pillai should see that the property
dedicated is maintained as ''nandavanam'' and flowers grown there, be supplied to those five temples.
(ii) It is also found exemplified in the deed that the following five Board of trustees were appointed by the founder of the Trust:
(i) Ramakrishna Naidu Trustee of Vaiyampalayam Sri Venugopala Koil.
(ii) Chinnappa Gounder Trustee of Kottaipalayam Sri Vigneshwara Temple.
(iii) Vengita Chettiar Trustee of Thirumalaichettipudur Sri Thiruvengadaperumal Temple.
(iv) S.M. Nanje Chettiar Trustee of Thirumalaichettipudue Mariamman Koil.
(v) Sakkarai Gounder Trustee of Thirumalai Chettipudur Sri Vigneswarar Temple.
should maintain the said property as ''nandavanam''.
(iii) The original donor also contemplated that after the life time of the original trustees appointed by him, their respective legal heirs have to be
appointed as the trustees.
(iv) Accordingly, the plaintiff and the other legal heirs of Kuppu Pillai formed a new Board of trustees and they have been maintaining the suit
property.
(v) While so, the officials of the department of Block Development Office and the office of the Collectorate attempted to encroach into the suit
property, which is situated adjacent to the Panchayat School.
(vi) Whereupon the plaintiff issued lawyer''s notice to stop the construction in the suit property by the officials of the first defendant-the Block
Development Department.
(vii) However, the defendants would contend untenably and baselessly as though the property under encroachment was donated by some alleged
trustees of the said trust, namely, Ayyasamy Gounder and Kaliappa Gounder. However, they had no power at all to either donate or alienate or in
any manner enter into an agreement concerning the trust property, unilaterally with any one.
(viii) In fact, the alleged trustees, namely, Kaliappa Gounder and Ayyasamy Gounder, referred to in the said agreement-Ex. B3 dated 10.12.1997,
which the defendants relied on, had no authority at all to deal with the trust property and they were strangers to it. Hence, the present suit.
(ix) Denying and refuting, challenging and impugning the allegations/averments in the plaint, D1 filed the written statement, which was adopted by
D2. The pith and marrow, the sum and substance of the written statement would run thus:
(a) Kaliappa Gounder and Ayyasamy Gounder had competency to part with a portion of the trust property in favour of the defendants for
beneficial purpose, so to say, for the use of the school effectively and purposefully.
(b) Over and above that the said property was no more used as a ''nandavanam'' because the well got dried up; there was no possibility of
watering the land concerned and maintaining it as a ''nandavanam''.
Accordingly, the defendants prayed for the dismissal of the suit.
(x) The trial Court framed the issues.
(xi) During enquiry, the plaintiff examined himself as P.W. 1 along with P.W. 2 and P.W. 3 and marked Exs. A1 to A14. On the defendants'' side
as many as four witnesses were examined as D.Ws 1 to 4 and Exs. B1 to B17 were marked. Exs. C1 and C2 were marked as Court documents.
(xii) Ultimately, the trial Court decreed the suit as prayed for, as against which, the defendants preferred the appeal for nothing but to be dismissed
by the first appellate Court, confirming the judgement and decree of the trial Court.
3. Being aggrieved by and dissatisfied with the judgements and decrees of both the Courts below, this second appeal has been filed by the
defendants on various grounds.
4. The learned Government Advocate, by placing reliance on the grounds of second appeal would put forth and set forth his arguments, the gist
and kernel of them would run thus:
(i) Both the Courts below failed to take into consideration the fact that the suit itself was bad for want of a prayer for recovery of possession. Once
it is found detailed and delineated that a particular area is under the possession of the defendants, then the plaintiff cannot simply try to take
possession of the suit property by seeking mere mandatory injunction for the removal of the compound wall.
(ii) No Court fee has been paid for recovery of possession.
(iii) Both the Courts below failed to appreciate Ex. B3-the agreement dated 10.12.1997 in proper perspective, but simply discarded it as though it
was having no legal significance.
(iv) The trustees responsible for maintaining the said property concerned, validly executed Ex. B3-the agreement dated 10.12.1997 parting with
the said area in favour of the first defendant for public purpose.
Accordingly, the learned Government Advocate would pray for setting aside the judgements and decrees of both the Courts below and for
dismissing the original suit.
5. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the
respondent/plaintiff would pyramid his arguments, which could succinctly and precisely be set out thus:
(i) Ex. A1-the gift deed dated 18.2.1936 is explicitly and axiomatically clear to the effect that the property measuring an extent of 40 cents was
dedicated as ''nandavanam'', so that the flowers grown there, are supplied to five temples specified therein, purely for religious purpose and it is a
private trust.
(ii) The Indian Trust Act, 1882 is applicable and in such a case, the said two strangers cannot donate or part with a part of the trust property in
favour of the Panchayat or Government for whatever purpose, including public purpose.
(iii) A trust property should be a trust property forever and if at all there should be any alienation, there should be permission obtained from the
authority concerned in accordance with law, but that was not done so.
(iv) The question of recovery of possession does not arise, because even before the defendants completely encroach upon the property and
enclose the encroached property with the adjacent school premises, the plaintiff objected to it and filed the suit, after issuing notice.
(v) There is no question of law much less substantial question of law is involved in this case, because the Courts below correctly discarded Ex. B3-
the agreement dated 10.12.1997, which is having no legal significance.
Accordingly, the learned counsel for the respondent/plaintiff would submit that the judgements of the Courts below warrant no interference.
6. My learned predecessor framed the following substantial questions of law:
1. Whether the courts below are right in decreeing the suit when there are clinching documents such as B3 and B5 to substantiate that appellant has
been in possession of the property?
2. Have not the courts below erred in law in not considering the fact that Ex. B2 Chitta stands in the name of Gopalakrishnan son of Ramakrishnan
Naidu and not in the name of the plaintiff?
3. Have not the courts below substantially erred in law in misinterpreting Ex. A1?
4. Whether the courts below are correct in placing much reliance upon the evidence of P.W. 1 who is not at all connected with the property?
(extracted as such)
7. All the substantial questions of law are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with
one another.
8. Indubitably and indisputably, unarguably and unassailably, an extent of 40 cents of land found described in the schedule of the plaint was
dedicated as ''Nandavanam'' by the original owner, namely, Arumugham, son of Kuppu Pillai, for religious purpose and he founded a private trust
in that regard. As highlighted supra, initially, the five trustees were appointed by the original founder of the trust, namely, Kuppu Pillai. He also
contemplated that on the death of the original trustees, his legal heirs should be appointed as trustees in their place.
9. At this juncture, it is just and necessary to refer to Ex. B3-the agreement dated 10.12.1997, certain excerpts from it would run thus:
10. A mere running of the eye over the above excerpts in Ex. B3-the agreement would clearly exemplify and demonstrate that the said description
itself is far from satisfactory. Even by phantasmagorical thoughts or by any stretch of imagination it cannot be labelled as a valid document.
11. At this juncture, I call up and recollect the following decision of the Hon''ble Apex Court as well as the provisions of the Indian Trusts Act,
1882.
State of U.P. Vs. Bansi Dhar and Others, Certain excerpts from it would run thus:
18. The principles relevant for our case may now be considered was the contribution of Rs. 30,000 for a charitable purpose? Lord Sterndale,
M.R. said in the Court of Appeal in In re Tutley:
I ... am unable to find any principle which will guide one easily and safely, through the tangle of the cases as to what is and what is not a charitable
gift. If it is possible I hope sincerely that at some time or other a principle will be laid down. The whole subject is in an artificial atmosphere
altogether.
While in India we shall not be hidebound by English decisions on this point, luckily both sides agree here and that accords with the sense of the law
that a hospital for women is a charitable object, being for medical relief. Moreover, the beneficiaries are a section of the public, women that still
silent, suffering half of Indian humanity. Therefore, this element connotes a public trust. The next question is whether the Indian Trust Act, 1882,
applies to the present case. The Courts below have argued themselves into an application of Section 83 of the Trust Act. Sri Dixit rightly objects to
this course because that Act relates only to private trusts, public charitable trusts having been expressly excluded from its ambit. But while these
provisions proprio vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public and merely
because they find a place in the Trusts Act, they cannot become ''untouchable'' where public trusts are involved. Care must certainly be exercised
not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the
universal rules of equity and good conscience upheld by the English judges, though also sanctified by the statute relating to private trusts.
The court below have drawn inspiration from Section 83 of the Trusts Act and we are not inclined to find fault with them on that score because the
provision merely reflects a rule of good conscience and of general application.
Section 3 of the Indian Trust Act is extracted here under for ready reference:
Sec. 3. Interpretation-clause ""Trust"" - A ""trust"" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in
and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.
author of the trust"", ""trustee""; ""trustee""; ""beneficiary""; ""trust property""; ""beneficial interest""; ""instrument of trust"". - The person who reposes or
declares the confidence is called the ""author of the trust""; The person who accepts the confidence is called the ""trustee""; the person for whose
benefit the confidence is accepted is called the ""beneficiary""; the subject-matter of the trust is called ""trust property"" or ""trust money""; the
beneficial interest"" or ""interest"" of the beneficiary is his right against the trustee as owner of the trust property; and the instrument, if any, by which
the trust is declared is called the ""instrument of trust"";
breach of trust"" A breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a ""breach of trust"";
registered"", expressions defined in Act 9 of 1872 And in this Act, unless there be something repugnant in the subject of context, ""registered
means registered under the law for the registration of documents for the time being in force; a person is said to have ""notice"" of a fact either when
he actually knows that fact or when, but for wilful abstention from inquiry or gross negligence, he would have known it, or when information of the
fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872, Section 229; and all expressions
used herein and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act.
12. The learned Government Advocate himself would correctly agree to the legal position that even for leasing out the property of a private trust,
permission from the District Court concerned as per Sec. 36 of the Trusts, 1882, is required and in the case of sale it is all the more necessary that
permission should be obtained by the true trustees of a private trust for the purpose of alienating the trust property and using the sale proceeds for
the same or similar purpose, for which the trust was created.
13. In this case there is no shard or shred, jot or scintilla of evidence to display and demonstrate that the executants, namely, Kaliappa Gounder
and Ayyasamy Gounder were trustees.
14. The learned counsel for the plaintiff would vehemently challenge the said persons'' locus standi to execute such an unregistered agreement in
favour of D1. D1 being a public official was not at all justified in simply entering into such dubious agreement throwing to winds all norms of Rules
and Regulations in this regard.
15. No doubt, the disputed land was annexed to the adjacent premises of the school run by the Panchayat. The Tamil Nadu Panchayats Act and
Rules, would contemplate the procedure in that regard; wherefore a Panchayat cannot simply accept any land, which is given by any one, without
adhering to the Rules and Regulations. Over and above that this Court is very much concerned with the Trust property as the guardian of all trust
properties whether public or private.
16. Scarcely could it be stated that those two persons, who are soi-disant (self-styled) trustees had simply the authority to meddle with the trust
property and part with it also. Not to put too fine on it, they donated the said property in favour of the Panchayat concerned illegally.
17. Both the Courts below au fait with law and au courant with facts, understanding the procedures and the law governing the Trust properties;
held correctly that Ex. A8-the resolution passed touching upon Ex. B3, is having no legal significance; and the Courts below also belittled and
discarded Ex. B3-the agreement dated 10.12.1997, warranting no interference. If a documents like Ex. B3 are to be countenanced as legal, then
the very object of the Trust Act would be frustrated and set at naught. On the Government side, no authority or no plausible arguments could be
put forth to highlight that Ex. B3 is a valid document.
18. The learned Government Advocate would vociferously canvass the case of the defendants by pointing out that the plaintiff had no locus standi
to maintain the suit.
19. No doubt, a plaintiff should have locus standi to file a suit. Section 63 of the Indian Trusts Act would run thus:
Sec. 63. Following trust-property-into the hands of third persons Where trust-property comes into the hands of a third person inconsistently with
the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.
Into that into which it has been converted Where the trustee has disposed of trust-property and the money or other property which he has received
therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has, in respect thereof, rights as nearly as may
be the same as his rights in respect of the original trust-property.
20. It is quite obvious that persons like the plaintiff can very well institute a suit to retrieve the trust property.
21. This Court cannot lose sight of the fact that as per Ex. A1-the gift deed dated 18.2.1936 the original founder of the private trust was one
Kuppu Pillai son of Viyapuri Pillai. Ex. A13-the copy of sale deed dated 27.8.1941 relating to some other property would refer to the fact that
one Arumugham Pillai happened to be the son of the said Kuppu Pillai. The plaintiff is the son of Arumugham Pillai, as revealed by Ex. A14-the
copy of S.S.L.C. Book of the plaintiff. Wherefore, the learned counsel for the plaintiff placing reliance on the cited exhibits would pyramid his
argument by pointing out that Gananprakasam the plaintiff had the locus standi to file the suit, so as to retrieve the trust property and maintain it as
''nandavanam''. He would also place reliance on Ex. A8 the copy of the resolution passed by the following present Board of trustees:
1. A. Gnanaprakasam
2. A. Srinivasan
3. A. Palanisamy
4. A. Thangasamy
5. V. Kuppusamy
6. V. Kanagasabhapathi
7. S. Kaliannan
8. S. Palanisamy
22. However, the learned Government Advocate would challenge and impugn the constitution of the alleged present board of trustees.
23. I could see considerable force in the submission of the learned Government Advocate. No doubt, in order to save a trust property, a devotee
also can very well file a suit. But it is for the Court to see that the trust property is not going into the hands of private individuals but it should be
handed over to the appropriate persons, i.e. the duly constituted trustees. A posteriori approach in matters of this nature and not a priori one to
resolve the dispute.
24. Gnanaprakasam the plaintiff himself cannot taken as a person, who constituted the board of trustees. His unilateral version that he along with
seven other persons constitute the present Board of Trustees cannot be taken for gospel truth and to that effect that evidence is also lacking.
25. In this factual matrix the core question arises as to what is the duty of the Court in matters of this nature. Between the conflicting pleas of the
parties, the Court has to strike a balance and see that the trust property is not dissipated or alienated, quite antithetical to the object and purpose of
the private trust.
26. Gnanaprakasam the plaintiff or some other persons, who have interest in the trust, should have approached the District Court for the purpose
of getting constituted a new board of trustees and thereafter alone they could very well take possession of the encroached property found
described in the schedule of the plaint. Simply because the Court has come to the conclusion that the defendants are having no right over the
property, holus-bolus it cannot be ordered to be delivered to the plaintiff without any precaution.
27. There is no certainty or guarantee, safety or security that the plaintiff, on such property having been taken delivery through Court by him, would
put it into proper use of the trust, unless the property is given to the duly constituted Board of trustees. As such, before taking delivery of
possession as per decree passed by the trial Court and as confirmed by the appellate Court, the plaintiff should approach the District Court and
get the approval of it in respect of the alleged duly constituted board of trustees and if the District Court finds that the existing board of trustees are
not the properly constituted trustees as per Ex. A1-the gift deed, it is for the District Court to constitute, as per its order, a Board of Trustees as
per Ex. A1, who shall be competent to take the delivery of the suit property as per the decree of the trial Court in this matter.
28. Regarding the prayer for mandatory injunction is concerned, no doubt, along with the mandatory injunction there should have been a prayer for
possession of the encroached property. However, the learned counsel for the plaintiff would submit that the plaintiff, at the relevant time thought
that on the removal of the compound wall, automatically possession would come into the hands of the trustees. But in my considered opinion, that
was a wrong notion.
29. To protect the property from the encroachers, a mere prayer for mandatory injunction would be enough. But here, the evidence would convey
and portray that an extent of 600 sq. feet or so, as narrated by the learned counsel for the plaintiff, was carved out from the trust property and
annexed with the school premises. In such a case, there should have been a prayer for delivery of possession and appropriate Court fee also
should be paid. Hardly it could be asserted that punctilious of Court procedures should blindly be applied to ad nauseam and ad infinitum
regardless of the necessity and the singularly situation involved in a case like this. Wherefore there is no point in directing the trustees to once again
file afresh a suit. The duly constituted trustees as per the District Court order could very well pay the necessary Court fee relating to the possession
of the encroached area and take delivery of possession of it through Court.
30. Accordingly, the substantial questions of law are answered as under: Substantial Question of law No. (1) is decided to the effect that the
Courts below are ultimately right in decree the suit ignoring Ex. B3 and Ex. B5.
Substantial Question of law No. (2) is decided to the effect that the courts below have not committed any error in ignoring Ex. B2-the Chitta.
Substantial Question of law No. (3) is decided to the effect that the courts below have not misinterpreted Ex. A1.
Substantial Question of law No. (4) is decided to the effect that the Courts below are ultimately right in decreeing the suit; however, before
execution the conditions contemplated in this judgement should be complied with by the plaintiff.
In the result, the appeal is partly allowed. However, there is no order as to costs.
