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innasimuthu Pillai and anr. Vs. Rev. A.J. Lutz and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1926Mad1029; 97Ind.Cas.630
Appellantinnasimuthu Pillai and anr.
RespondentRev. A.J. Lutz and ors.
Cases ReferredVenkataramana Ayyangar v. Katuriranga Ayyangar
Excerpt:
- .....injunctions. the suit failed in the first court on the district munsif's findings : (1) that the suit property was not trust property ,(2) that the sale to 1st defendant was valid and binding on the plaintiffs; and (3) that a body of roman catholics distinguishable as belonging to the vellala and mudaliar castes cannot be legally recognized as there are no caste distinctions among christians, the appeal to the sub-court failed for the same reason.2. it is conceded now that the plaintiffs are not entitled to the 1st relief--that of possession of the suit property in the present suit. mr. vaz argues for the appellants that it should have been found that there was a public trust created and that his clients should have been given a bare declaration that the suit property belongs to the.....
Judgment:

Spencer, J.

1.This is a representative suit under Order 1, Rule 8, of the Code of Civil Procedure. The plaintiffs claim to represent the Roman Catholic Vellalas and Mudaliars of Vedakkankulam, They sued for possession of a School building and site which hard been sold by Defendants 2 to 6 to the 1st defendant who is an American Lutheran Missionary of Nagercoil. The 6th defendant halving died during the suit, the 7th defendant was brought on record as his legal representative. Further reliefs were also claimed in the shape of declarations and injunctions. The suit failed in the first Court on the District Munsif's findings : (1) that the suit property was not trust property ,(2) that the sale to 1st defendant was valid and binding on the plaintiffs; and (3) that a body of Roman Catholics distinguishable as belonging to the Vellala and Mudaliar castes cannot be legally recognized as there are no caste distinctions among Christians, The appeal to the Sub-Court failed for the same reason.

2. It is conceded now that the plaintiffs are not entitled to the 1st relief--that of possession of the suit property in the present suit. Mr. Vaz argues for the appellants that it should have been found that there was a public trust created and that his clients should have been given a bare declaration that the suit property belongs to the entire body of Roman Catholic Christian Vellalas and Mudaliari of Vedakkankulam and that the sale for the purpose of its being used for teaching by a person like the 1st defendant antagonistic to the Roman Catholic religion, was invalid.

3. There is no deed of trust in the present case. Counsel relied on user as evidenced by Exs. E and C and he quoted the case of Clifford's Inn in Smith v. Ken [1900] 2. Ch. 511 and the same case in appeal in Smith v. Kerr [1902] 1 Ch. 774 and the Attorney General v. Webster [1875] 20 Eq. 483 as instances where there was no trust expressed but on long user for charitable purposes a trust was held to have been established. In the former case there was clear divestant of the title under the Indenture of 1618 by the original owners, the Earl of Cumberland and Lord Clifford, the purpose being the maintenance of a school of learning. The carrying out of that purpose for three centuries stamped the institution with the character of a trust. In the latter case, the property originally given for superstitious uses became vested in the Grown by statute. The Grown in turn granted the property to Lord Went-worth, who conveyed it to two individuals for the use of the parish at St. Stephen in the City of London. There was evidence that the lands were applied for charitable purposes. In the end it was held that the property was not a private property of the parish but was subject to the powers of the Charity Commissioners

4. In the present case there appears to have been never any vesting of the property in trustees. In fact, in paragraph 5 of the plaint it is still claimed that the property forms the common property of the entire body of Roman Catholic Christian Vellalas and Mudaliars. Reference was made to Ex. E, in which one Susai Maria Pillai declared that the property was given for the purpose of constructing a school for the education of Pillai and Mudaliar boys alone of Vadakkankulam, and that the donees should have no power to encumber the property. Susai Maria Pillai was examined as P.W. 5 and he admitted that he executed Ex. E, because the patta of the suit land stood in his name and he was asked to execute this document by the representative of the Prior or Priest but that he never paid the kist for the land and never enjoyed it. The District Munsif found that the title to this land passed under Ex. III and that Ex. E was only taken as a formal document for getting the patta transferred. It is clear that the recital of the purpose for which the land was transferred upon which the school had already been built will not create a trust where no trust existed previously. Ex. C is a document, termed an agreement, executed by 60 of the inhabitants of Vadakkankulam who had seceded from the authority of the Roman Catholic Father Caussanel and purporting to delegate to four persons named therein the power of management of a common fund for carrying on litigation against the opposing party. It does not purport to create a trust, nor is it evidence of the existence of a trust.

5. The plaintiffs are truly on the horns of a dilemma. If the school and the site upon which it was built form the common property of the community 6f Roman Catholic Christians drawn from the Vellala and Mudaliar castes, then the sale in favour, of the 1st defendant was effected with full authority from the majority of the same body of persons who signed Ex. C ; and Ex. V is a record of the proceedings of that body at a meeting held in January, 1917, whereat it was resolved by a unanimous vote of those present to sell the suit property in order to discharge half of their debts.

6. On the other hand, if the plaintiffs succeed in showing that the property is trust property, then the present suit, not having been brought after obtaining the sanction required by Section 92 of the Code of Civil Procedure, cannot be maintained Section 92 is intended to cover cases in which there has been a breach of trust in relation to a public charitable or religious-trust. Persons interested in such a trust must obtain the sanction of the Advocate-General for instituting a suit to obtain an order of Court vesting the property in trustees. The requirement of the section cannot be evaded by asking for a bare declaration under the Specific Relief Act: vide Mufti Ali Jafar v. Fazul Husain Khan A.I.R. 1922 All. 349. The case Venkataramana Ayyangar v. Katuriranga Ayyangar [1917] 40 Mad. 212 upon which the appellant's counsel relied, was a case in which some class of the worshippers of a temple asked for a declaration as to the future disposal of the offerings made to the god. It was hold that Section 92 was not applicable to a, suit of that nature. The present suit is of a different character and is based upon an alleged breach of trust. If the plaintiffs have succeeded in establishing the existence of a trust, Section 92 would be a bar to their suit. But in the opinion of the Courts below, with which I agree, there is no proof that the properties in suit had ever been dedicated or vested in trustees and the suit failed because the plaintiffs failed to show that the disposal of the. property under Ex. IV was not a valid and authorized disposal to which the majority of the proprietors had given their assent in a public meeting summoned for that purpose. The suit was, therefore, rightly dismissed.

7. The second appeal, therefore, fails and is dismissed with costs.


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