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Ramaswami Goundan Vs. Alagia Singaperumal Kadavul and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1926)50MLJ42
AppellantRamaswami Goundan
RespondentAlagia Singaperumal Kadavul and anr.
Cases Referred and Rangaswami Naidu v. Krishnaswami Aiyar
Excerpt:
- .....after his death. his widow, who is 2nd defendant, is his nearest heir, and, as she alienated the trust property, she cannot be transposed as plaintiff. the reversioner cannot claim at present to be trustee. the proper course is for the plaintiff together with one or more interested persons after obtaining the required sanction under section 92 to sue for 2nd defendant's removal from the trusteeship, and for appointment of himself or some other fit person to be trustee in her place. in such a suit the validity of the alienation could be decided.4. the person who becomes trustee or a receiver appointed in the suit may then sue on behalf of the idol for the recovery of the property improperly diverted from trust purposes. it is suggested that we might allow some time for the plaintiff to.....
Judgment:

1. This suit was brought by a male reversioner to the estate of the founder of a trust for the temple of Alagia Singaperumal Kadavul to recover property alienated in favour of 1st defendant by the act of the founder's wife, who is 2nd defendant. The District Munsif held that the plaintiff was not entitled to maintain the suit and dismissed it. The Additional Subordinate Judge was of a contrary opinion and ordered the suit to go on.

2. He relied on two cases, Cunniah Chetty v. T. Ramanuja-chari : (1913)24MLJ48 and Srinivasacharlu v. Subuddhi (1888) 23 M.L.J. 348. Both of these decisions were given in suits instituted when the Civil Procedure Code of 1882 was in force. When the amended Act of 1908 came into force it contained a new provision in Clause 2 of Section 92 barring suits in respect of charitable and religious trusts without first obtaining the permission of the Advocate-General.

3. We have been referred, in the course of the arguments, to two other cases, Subramania Aiyar v. Nagarathna Naicker (1909) 20 M.L.J. 151 and Rangaswami Naidu v. Krishnaswami Aiyar (1922) 44 M.L.J. 116. These were cases in which a number of persons had a common interest in a temple or charitable institution and a representative suit was allowed by the Court to be brought on behalf of all under Section 30 of the Code of 1882 (now Order 1, Rule 8). When a village temple is owned in common by all the villagers of a certain village, this is the proper form of suing. In the present case the founder of the trust appointed himself as manager during his lifetime and his heirs after his death. His widow, who is 2nd defendant, is his nearest heir, and, as she alienated the trust property, she cannot be transposed as plaintiff. The reversioner cannot claim at present to be trustee. The proper course is for the plaintiff together with one or more interested persons after obtaining the required sanction under Section 92 to sue for 2nd defendant's removal from the trusteeship, and for appointment of himself or some other fit person to be trustee in her place. In such a suit the validity of the alienation could be decided.

4. The person who becomes Trustee or a Receiver appointed in the suit may then sue on behalf of the idol for the recovery of the property improperly diverted from trust purposes. It is suggested that we might allow some time for the plaintiff to apply and get permission to proceed either under Order I, Rule 8 or under Section 92, Civil Procedure Code, but we think that this cannot be done as it would alter the nature of the suit. The appeal is accordingly allowed with costs to be paid by 1st respondent in this Court and the Lower Appellate Court, and the decree of the District Munsif dismissing the suit with costs is restored. Second respondent to bear her own costs.


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