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Kamudavalli and anr. Vs. P.N. Purushotham - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberO.S.A. No. 61 of 1974
Judge
Reported inAIR1978Mad205
ActsCode of Civil Procedure (CPC), 1908 - Sections 92 and 92(1)
AppellantKamudavalli and anr.
RespondentP.N. Purushotham
DispositionAppeal allowed
Excerpt:
.....locality in the sense that it has been created for the purpose of bringing into its fold the children who are the children of the residents in the surrounding and train them as citizens of our country. 9. for the foregoing reasons we are of the view that the second plaintiff, in the circumstances of the case and having regard to the fact that the subject matter of the trust is a public school it should be held that he is a person having a substantial interest in the well-being of the institution and that the second plaintiff along with the first plaintiff do comply literally with the mandates regarding the number of persons to institute the action under section 92 c. 10. we have already held that the learned judge in all other respects condemned the action of the defendant and in fact..........to remove the defendant from trusteeship, for appointing a fit and proper person as trustee for a public trust endowed for the purpose of running and maintaining what is known as nagammal hindu higher elementary school, which was dedicated by late nathamuni chetti under a deed of trust dated 2-6-1941. for the said purpose certain immoveable properties were also earmarked by the author of the trust. the plaintiffs complained of mismanagement by the respondent, who is now functioning as trustee. they would claim to be interested in the trust, the first plaintiff beingthe widow of late nathamuni chetti and the second plaintiff being a close relation and old boy of the elementary school besides being a resident of the locality. they catalogued several events in the plaint according to which.....
Judgment:

Ramaprasada Rao, J.

1. Theplaintiffs in a suit filed u/s 92, C. P. C., in C. S. No. 73 of 1972, on the file of the Original Side of this court, are the appellants. After obtaining the sanction from the Advocate General, Madras, the plaintiffs have filed the present suit to remove the defendant from trusteeship, for appointing a fit and proper person as trustee for a public trust endowed for the purpose of running and maintaining what is known as Nagammal Hindu Higher Elementary school, which was dedicated by late Nathamuni Chetti under a deed of trust dated 2-6-1941. For the said purpose certain immoveable properties were also earmarked by the author of the trust. The plaintiffs complained of mismanagement by the respondent, who is now functioning as trustee. They would claim to be interested in the trust, the first plaintiff beingthe widow of late Nathamuni Chetti and the second plaintiff being a close relation and old boy of the elementary school besides being a resident of the locality. They catalogued several events in the plaint according to which their main complaint is that the defendant failed to maintain the school as per the directions of the trust and the author of the trust and has also caused wanton and continuous breach of the express terms thereof. They would also demand an account from the defendant from 1969 till date and sought for ancillary reliefs. The defendant in the written statement questions the status of the second plaintiff as a plaintiff in a suit under Section 92 C. P. C; as he is not a descendant of the founder and as he cannot be said to have any real or substantial interest in the trust. He would, therefore, allege that the suit is not properly framed and therefore, not maintainable, as the primary requirements under Section 92 C. P. C. is that there should be two or more persons interested in the trust, who could seek for any reliefs set out in the section. Besides challenging the sanction given by the Advocate General the defendant would complain that the plaintiffs' objective is to enrich themselves and not to further the objects of the trust. He would deny that he has committed any acts of waste and would plead that if any other trustee is appointed to manage the trust in the place of the defendant it would amount to a violation of the founder's express desire and considered intention. Paul J. who tried the suit, framed the following Issues-

1. Whether the suit is not maintainable for any reason?

2. Whether valid sanction has been obtained from the Advocate General under Section 92 C. P. C. ?

3. Whether the trust is being mismanaged by the defendant?

4. Whether the grant is suspended on account of mismanagement on the part of the defendant?

5. Whether any breach of the wish of the founder of the trust was caused by the defendant?

6. Whether the first plaintiff is entitled to file the suit?

7. To what relief is the plaintiff is entitled?

2. On the first issue, the learned Judge found that the suit was not maintainable since in the related circumstances the second plaintiff cannot be said to havethe requisite interest to file and prosecute the action. He held that the plaintiffs obtained due sanction and the plaintiffs are entitled to file the suit. On issues 3, 4 and 5, which covered the main points of controversy between the plaintiffs and the defendant, the learned Judge after an elaborate discussion into the oral and documentary evidence held that the main item of trust, namely, the Nagammal Hindu Higher Elementary school is being mismanaged by the defendant and that the grant by the Government was suspended on account of such mismanagement and that the defendant did act against the wishes of the founder. In the end, however, the learned Judge observed as follows-

'In view of my findings on issues Nos. 2 to 5, the plaintiffs would have been entitled to all the reliefs which they have claimed in the plaint, but in view of my finding on issue No. 1, that the suit is not maintainable since the second plaintiff does not have the requisite interest, this suit has to be dismissed and the plaintiffs will not be entitled to the reliefs claimed in this suit. Hence this suit is dismissed, but, in the circumstances of the case, I direct each party to bear their own costs.'

The plaintiffs have come up in appeal.

3. The respondent is not represented before us. It, therefore, became necessary for us to consider the question in some detail. We may at once state that as the respondent is not before us and has not cared to challenge in any manner the findings of the learned Judge on issues 3, 4 and 5, which is to the effect that the defendant did commit acts of waste and mismanaged the trust and acted against the wishes of the founder, it is not necessary for us to retread the ground. We however perused the judgment and we have no reason at all to differ from the findings on these issues of the learned Judge. We therefore, confirm the same.

4. The only substantial question which arises for consideration in this appeal is whether the suit as framed is maintainable. Section 92 C. P. C., which operates as a shield against the mismanagement of public trust whether charitable, religious or otherwise, is as far as possible exhaustive so as to afford protection for the due and proper maintenance, upkeep and processing of public trusts and to guard as against mismanagement, misappropriation and wild indulgence onthe part of those who are for the time being enjoined to administer such trusts. The infringement of private rights is undoubtedly outside the scope of enquiry under the Section. As long as it is apparent from the pleadings and from the evidence led in a particular action that the suit was not for vindication, of personal: or individual rights, but the suit was brought in a representative capacity for the advancement of the objects of the trust, then there can, be no possible bar to the maintainability of such a suit. It should be established that the persona, who are complaining against the administrators of the trust have a real interest in praesenti and not a mere sentimental interest. The purposeful use of the expression two? or more persona, hawing a direct interest in the trust was intended to widen the class of persons entitled to institute the suit under the section. Here again the interest should be real, substantive and an existing- interest and not a mere remote, fictitious or contingent one. It would, therefore, appear from the meaningful expansion of the word 'interest' in Section 92 C. P. C., that a person in order to lay a suit under it should plead and establish that he has some tangible interest towards the maintenance and progress of the public trust. Such an interest could be established in a number of ways. A resident of the locality who has some nexus or connection with the trust in the sense that he has interest in its well-being and prosperity, can under certain circumstances, be taken to be a person having an interest in the trust. In the case of a temple a fair presumption of the existence of such a right in a person can be raised in the case of a resident in the locality, who visits the temple and who takes part in normal rituals and religious functions. In the case of a public school such presumption could also be raised if he is an old student of the school, which necessarily involves a connection with it and if he is also a resident of the locality in which the school is situate he is doubly qualified to lay an action along with another under Section 92 C. P. C. What ia to be primarily established is that the suit relates to a trust created for a public purpose (2) it should contain allegations against the person-in-breach, such as breach of trust, misappropriation or mismanagement and (3) the necessity in the particular circumstance of a given case for administration of the trust by a body other than the body is management, Iftwo or more persons having an interest in the trust file such a suit, then it is maintainable. The question in the instant case before us is whether the second plaintiff has such an interest,

5. It is, therefore, necessary for us to deal with the evidence led in this case before we consider further legal requirement and its aspects. One argument which was addressed before us was that the second plaintiff is the son of the founder's wife's sister. Such a relationship cannot be said to be a substantial compliance of the primordial requirement under Section 92 C. P. C. for the maintainability of a suit under it. A remote relationship through the female line by itself cannot, as rightly pointed out by the learned Judge, be such an interest which is sufficient for him to lay an action along with the first plaintiff against the defendant, particularly under the special procedure prescribed under Section 92 C. P. C.

6. Nextly, can the second plaintiff be said to be interested in the trust because he is a member of the public and a resident of the locality. We have already hinted at the weightage to be given to this aspect. No doubt, mere residence and the badge of being a member of the public of the locality may not by itself be sufficient to hold that the second plaintiff has sufficient interest within the meaning of Section 92 C. P. C. The school in question as founded by late P. V. Nathamuni Chetti is admittedly a public school in the sense all members to whichever community they belong are admitted. In the peculiar case under consideration which relates to the creation of trust for the running of a school several peculiar features enter into the discussion. A resident of the locality in which the school is situate and in which the trust is functioning may not have a direct nexus with the management of the institution, but is undoubtedly interested in keeping the school truthful, upright and well-managed. After all a school is established by a donor so as to propagate education amongst the children in the locality and any parent therefore, living nearby would obviously be interested in raising an expectation within himself that the school is a fit and proper institution in which his children could study. If it is a case of a temple or choultry evidence may be necessary to show that a resident visits the choultry or the temple or that the choultry was put uptherein for the benefit of the communityto which the donor belongs. But in thecase of a school such an objective testis not possible. If a fair inference couldbe drawn that a resident in the localityis subjectively interested in the wellbeing of the school and, therefore, thetrust, since his object is that his descendants as also the children of the parentsin the locality should conveniently gettheir education in the nearby school,then such an interest would in our viewcome within the meaning of the expression 'having an interest' and cannot beheld to be illusory or hypothetical. Indeed the line of cases cited before thelearned Judge (were) all related to eithera temple or a choultry and the ratio insuch decisions was that in order to uphold an interest in such trusts, it shouldbe a present and substantial one and nota remote and a fictitious one. The learned Judges, in the cases cited before PaulJ. were concerned with either a templeor a mosque or a choultry. In all suchcases it was held that the visitations toa temple and resort to a choultry or frequent visits to a Mosque could only createsuch a present and a substantial interest,but can that theory automatically be extended to a school which is the fountainof education to which children are sentby the people in the locality to get theirchildren educated. Excepting for theirsubjective satisfaction that the school isrun well and on sound ground by persons who are fit and proper to administer the same, they cannot be said to haveany more interest in the well-being ofthe school. Nevertheless, such an interestcannot be said to be a fictitious or anillusory one. In our view it has a presentand a meaningful interest also in thetrust because the residents are interestedin the well-being of the school and itsproper regulation. It is not necessary thata particular person to have an interestunder Section 92 C. P. C. should be personallyinterested or personally affected, by anyact done by the administrator of thetrust. If it could be established that theyare interested in the proper conduct andrunning of the trust and are involuntarily involved in evincing interest in itsbeing regulated and conducted in accordance with the terms of the trust, itcould reasonably be said, that such a person has enough of an interest in thetrust concerned.

7, In the instant case, it is not in dispute that the second plaintiff is a resident of the locality, and is thus a memberof the public. The claim of the second plaintiff is that he has studied during 1947-48 in this school. This is corroborated by P. W. 7, the first plaintiff. The defendant did not produce any records of the school of the year 1947-48 to disprove that the plaintiff was not an old student of the Nagammal Hindu Higher Elemenary School of which he is the trustee. P. W. 1's evidence is that the second plaintiff's parents were living outside Madras and that even during the lifetime of her husband the second plaintiff was brought up by her and was educated in the early days in Nagammal's school. Paul J. was of the view that since the second plaintiff did not summon the production of the transfer certificate issued to him by the Nagammal Hindu Higher Elementary School, his case should not be believed. But on the other hand by malting a specific and a serious allegation which touches the core of the suit in so far as its maintainability is concerned, the onus shifted to the defendant to disprove such an allegation. We have no special ground to disbelieve the plaintiffs that the second plaintiff was an old student of the school. The point made out was that no such allegation was made in the plaint. In the plaint no doubt, the second plaintiff pleaded that he was entitled to file the action and he was a member of the public and interested in the growth, welfare and good management of the trust. The fact whether he was an old boy of the school is only a matter of evidence and need not be a matter of pleading. He swore to this aspect in the witness box and was supported by the first plaintiff as PW 7. We have already made it clear that in the case of a temple, visitations to it on important occasions like marriage festivals or other religious functions in the temple itself might be a substitute of evidence to show that a resident within two or three miles of the temple site might be said to have an interest in the temple. But, in our view, when it is established that the second plaintiff was a resident of the locality and was also a member of the family of the first plaintiff and her husband though in the female line and claims to have studied in the school during the particular period for which there is no contrary evidence, it cannot be said that the second plaintiff has no interest at all in the well being and upright management of an educational institution which, as wasreiterated already, is intended to benefit every one in the locality in the sense that it has been created for the purpose of bringing into its fold the children who are the children of the residents in the surrounding and train them as citizens of our country.

8. We agree with the learned Judge that plaintiffs are not actuated by any personal interest or personal motives in filing this action. But we are unable with respect to share his view that the second plaintiff cannot be said to be a person having an interest in the trust.

9. For the foregoing reasons we are of the view that the second plaintiff, in the circumstances of the case and having regard to the fact that the subject matter of the trust is a public school it should be held that he is a person having a substantial interest in the well-being of the institution and that the second plaintiff along with the first plaintiff do comply literally with the mandates regarding the number of persons to institute the action under Section 92 C. P. C. We set aside the finding under issue No. 1 and hold that the suit has been properly filed.

10. We have already held that the learned Judge in all other respects condemned the action of the defendant and in fact expressed the view that but for his finding on issue No. 1, that the suit is not maintainable, the plaintiffs should be entitled to all the reliefs which they have claimed in the plaint. As according to us the suit is maintainable, and as there is no challenge on the findings rendered by the learned Judge on issues 2 to 5 the suit has to be decreed as prayed for and the defendant is directed to render a true and proper account of the income derived in the management of the school from 1968 till date. The subject matter, however, is remitted back to the learned Judge sitting on the Original Side for him to frame a suitable scheme for the administration of the trust and after the scheme is so framed, direct the defendant to deliver the suit properties to the new trustees to be appointed under the scheme and pass such further orders as are necessary for the vesting of the properties in the trustees to be constituted under the scheme.

11. The appeal is allowed; but there will be no order as to costs.


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