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K.P. Keshava Rao and ors. Vs. Nathravati Alias Yemunama and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in105Ind.Cas.837
AppellantK.P. Keshava Rao and ors.
RespondentNathravati Alias Yemunama and ors.
Cases ReferredKhetter Chunder Ghose v. Hari Das Bundopadhya
Excerpt:
hindu law - family temple trust--dispute as to management--reference to arbitration by adult members of family--award made decree of court and acted upon--minor members alive on date of award, whether bound. - .....one family to another family, as the first family was unable to carry on the management of the trust properties and look after the interest of the idol. that transfer was held to be a valid transfer. as i find that ex. i is binding on the family and the present plaintiffs, the arrangement made under ex. i is binding on the trust properties. the first defendant is, therefore, entitled to keep possession of the trust properties as against the plaintiffs. what is to happen on the death of the first defendant, we are not called upon to decide, and on that matter, i express no opinion whatsoever. these are the only points that have been argued before us and as i find on these points against the plaintiffs their appeal must fail. the sub-ordinate judge has considered the case in a very.....
Judgment:

Krishnan, J.

1. This is an appeal against the decree of the Subordinate Judge of South Kanara in O.S. No. 60 of 1920 on his file. The suit was to recover certain moveable and immoveable properties, for an account of the management of the plaint mentioned trust and for damages. The first defendant is the person against whom the claim was mainly made. The Subordinate Judge dismissed the suit and hence the appeal to us by the plaintiff.

2. The suit from which this appeal arises was brought in connection with a family trust created by the members of the family in the year 1867, under a registered document Ex. A. Under that document, they set apart the plaint properties for the performance of certain viniyogas mentioned in the document and of certain ceremonies in connection with the newly consecrated idol of Krishna Devaru, the family god. It was provided in that document, which was a document executed by four members who had acquired the properties themselves, that they and their descendants should perform the puja and devatarchana, that, for that purpose, they should learn the rules necessary for such performance and that they must themselves get the benefit of the naivedya of the devaru carried on out of the income of the said properties, and it was also provided that any one not knowing the rules of worship should neither be entitled to perform the puja nor to nominate another person in his place nor to obtain the said benefits on such pretext and it was also provided that the person who is the ejman in the family should cause the puja to be conducted according to the rules. This is a purely private trust for the family. The trust was carried out for about 13 years, when the difficulty of carrying on the trust seems to have been felt by all the members of the family under the original terms and, therefore, they made a reference to certain arbitrators to settle what would be the best arrangement for carrying on the trust in future. The award that was made is marked as Ex. G. Under that award, practically the same arrangement as before was continued. Ananthayya who was then the ejman of the family as a whole was directed to keep in his possession all the properties, no doubt for the trust, and enjoy them and it was ruled that no other member of the family should have any right to obstruct or to interfere in his enjoyment. This was in 1880. The award stated that all the members of the family had the right of living in the house, in which the idol was consecrated and which was apparently the family house of the parties. This arrangement seems to have gone on till the year 1897. But it could not be carried on properly the members finding it difficult to abide by the terms of this arrangement. Ananthayya had, in the mean while handed over the management of the trust to his nephew, one Narayana Rao. We, therefore, have their another reference to arbitration this time to one of the leading Vakils in South Kanara, Mr. A. Subba Rao. The muchilika. submitting this question to arbitration is Ex. II and is signed by Ananthayya and a number of other members r of the family, apparently all the then adult members who could speak on behalf of the family at the time. It says that disputes had arisen among them in respect of the enjoyment of the immoveable properties set apart for the viniyoga, etc., of the family god Krishna and asks the arbitrator to decide what would be the best arrangement for the carrying out of the family trust. The arbitrator passed an award which subsequently was made a decree of Court and which is filed as Ex. I. Prom 1897 up to the date of the suit, no disputes have arisen and the trust has been carried on in accordance with that award. Under, that award, one of the properties was actually divided up into three parts and given to the three branches of the family. It was also decided by the arbitrator that the management of the viniyogas and the ceremonies and other things of the trust as well as the properties attached to the trust was thereafter to be left to Narayana Rao who was the sixth defendant in that litigation. He was the man to whom Ananthayya had already handed over the management of the trust. The award provides as follows:

The sixth defendant and the members of his branch should enjoy them (that means the properties set apart for the viniyogas and the management of the trust itself) from generation to generation and continue to conduct the devataviniyoga concerned. While the sixth defendant and the members of his branch enjoy the said properties in the said manner, the remaining two sharers (that is branches of the family) have no manner of right and interest either to interfere in the matter or to ask that they will conduct the devataviniyoga or to claim the properties set apart for that purpose or to state that, they will obtain some benefit from the properties set apart for devataviniyoga in future.

3. In fact the sixth defendant Narayana Rao and his branch were given the exclusive right of managing the trust of looking after the ceremonies that had to be performed and of managing the properties set apart for the trust, except that which had already been divided. Narayana Rao subsequently died leaving no male issue and the first defendant in this suit, who is his widow, took possession of the management of the trust on Narayana Rao's death and it is she that is now managing the trust. The plaintiffs have brought this suit to remove her from the management to make her account for her management and to recover all the properties from her possession, and for damages, as I have already stated.

4. The first point argued before us by Mr. Ananthakriahna Iyer the learned Vakil for the appellants is that, under Ex. I, assuming that it is a valid arrangement, the performance of the viniyogas cannot be entrusted to a woman, that it is only a male member that can become a trustee and, therefore, the first defendant should on that ground alone be removed from management.

5. The Subordinate Judge has held against this contention and I think rightly. The document, Ex. I, does not say anything about the male members of the sixth defendant's branch along being entitled to manage. It speaks generally of the members of the branch. But it is argued by Mr. Ananthakrishna Iyer that Ex. I should be read in this connection with Exs. A and G and that, so read, we will have to hold that it is only the male members that, should be allowed to manage this trust. It is quite true that under Ex. A there is a provision that the puja should be performed and the devatarehana and other things done only by the person who is the trustee, and should not be done by proxy at all and that if he is not able to do such ceremonies himself, he would not be entitled to the trusteeship. It is on account of the difficulty of carrying out these provisions that the members of the family had referred twice to arbitration to make a better arrangement for the purpose of carrying on the trust. We cannot, therefore, refer back to Exs. A and G and construe Ex. I which was intended and stated to be intended for the purpose of making new arrangement so that this trust may be properly carried out. That being so, we cannot accept Mr. Ananthakrishna Iyer's argument that Ex. 1 should be read with Ex. A. Exhibit I has altered Ex. A and so unless Ex. I is not binding upon the plaintiffs, which is his next contention, we must hold that under Ex. I the widow is entitled to manage the trust and the properties.

6. The next contention of Mr. Ananthakrishna Iyer is that Ex. I is not valid and binding upon his clients. He argues that at the time of Ex. I, when the award and decree were made, his clients were alive and were members of the family and as they had under Ex. A already acquired by their birth an interest in the family trust and had somehow or other become entitled to see that the arrangement made for the management of this trust under Ex. A was not interfered with, he contends that the arrangement made under Ex. I cannot be treated as binding upon his client as they were no parties to the arrangement. It is true that his clients were alive at the time of Ex. I and that they were not made to nomine parties to that arrangement. But it must be remembered that the award was the result of all the then adult members of the family submitting to an arbitrator the question of what was the proper arrangement for the management of the trust. I think in the circumstances the submission to the arbitration was really done on behalf of the family by their adult members who were able to speak on its behalf. It is not necessary that the minors should have been made eo nomine parties as their interests were represented by their fathers and grandfathers, and they are the persons who agreed to the muchilika Ex. II. They would, therefore, be bound by the award unless it can be shown by them that there was something in fraud of their interest involved in the award. It is not pretended at all that there was anything in fraud of their interest. Mr. Ananthakrishna Iyer expressly stated that he does not want to impute any fraud against any of the defendants or any of the member of the family. He concedes that the submission to the award was made in what was considered to be the best interest of the family by the persons who joined the muchilika. That being so, it seems to me that it is not now open to the minors to come forward and say that they are not bound by the arrangement. It will be remembered that this award and decree were passed in 1897-1898, that is some 23 years before suit and no attack has been made by any body on this arrangement all this time. On the other hand, the members of the family have proceeded in various matters on the footing that it was a proper and binding arrangement. That would add strength to the inference that the action taken in 1897 was really for the benefit of the family. It was also for the benefit of the idol, if that could be considered in this matter, for without some arrangement being made, it was admitted that as the house in which it was located was going to tumble down, the idol would have lost its residence. In these circumstances it seems to me that it was open to the then senior members to bind the whole family by the arrangement that was made under Ex. I.A. somewhat similar case arose in Khetter Chunder Ghose v. Hari Das Bundopadhya 8 Ind. Dec. 911 and their Lordships held that in similar circumstances the whole family would be bound by the arrangement made by the senior members. There it was a transfer of the idol and the properties with which it was endowed from one family to another family, as the first family was unable to carry on the management of the trust properties and look after the interest of the idol. That transfer was held to be a valid transfer. As I find that Ex. I is binding on the family and the present plaintiffs, the arrangement made under Ex. I is binding on the trust properties. The first defendant is, therefore, entitled to keep possession of the trust properties as against the plaintiffs. What is to happen on the death of the first defendant, we are not called upon to decide, and on that matter, I express no opinion whatsoever. These are the only points that have been argued before us and as I find on these points against the plaintiffs their appeal must fail. The Sub-ordinate Judge has considered the case in a very careful and lengthy judgment. I agree with what he says in his judgment and I would dismiss this appeal with 'costs of the first defendant.

Venkatasubba Rao, J.

7. I agree. The judgment of the learned Subordinate Judge may be supported on a short ground. Are the plaintiffs entitled to impeach Ex. I? There was a submission to arbitration made by all the adult members of the plaintiffs' family. They were then seven in number and the present plaintiffs are either their sons or grandsons and were at the time of the submission minors. The award of Mr. Subba Rao was recognised' by the decree of Court, Ex. I. It is not disputed that the adult members acted wisely and prudently in executing the muchilika and that their acts were in the best interests of the family. Nor is it disputed that the award was beneficial, as the Judge has very fully shown, to the family as well as to the idol. In the circumstances I see nothing to prevent the Court from holding that though the names of the plaintiffs do not appear in the records of the proceedings that culminated in the decree, they were in substance and in truth really parties to them and in this view they are clearly bound by Ex. I and they cannot obtain any relief. The only other point that remains has reference to the contention of Mr. Ananthakrishna Iyer that under Ex. I female members of Narayana Rao's family are excluded. This contention cannot possibly be accepted as the words used are very general, namely, 'members of his family'. The first defendant is Narayana Rao's widow and is clearly a member of his family.


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