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Muthuswami Naidu and anr. Vs. Rayulu Naidy - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in88Ind.Cas.375
AppellantMuthuswami Naidu and anr.
RespondentRayulu Naidy
Cases ReferredSarat Chandra Ghose. v. Pratap Chandra Ghose
Excerpt:
civil procedure code (act v of 1908), section 92 - partition--property set aside for feeding the poor--trust, whether created--property alienated by trustee--suit to recover possession of property from transferee, whether maintainable--procedure. - .....the trustee for the charity and that before the plaintiffs can interfere and sue for possession of charity property, they must properly, and legally remove muthukrishna from the trusteeship. the charity being vanabhojanam, which was admitted to mean according to the subordinate judge, the feeding of the poor, is a, public charity and being a public charity, to which s trustee had been appointed under ex. a i do not sec how the plaintiffs can set aside that management, at their will and pleasure and take upon the management themselves, whether it be on the ground that muthukrishna has mismanaged the charities, or on the ground that he had become insolvent, either of which may be a good ground, for removing him, i think he cannot be ignored by the plaintiffs; but he must be formally remove.....
Judgment:

Krishnan, J.

1. In this case the suit was for possession of a land set apart for charities at the time when partition was effected between the plaintiffs and the other members of their joint family. The partition deed is evidenced by Ex. A, which says that 46 cents of land are set apart for vanabhojanam charities paying an assessment of Res. 1-3. It says in another portion of the document, that D. schedule properties, which are the properties set apart for vanabhojanam charities shall remain with Muthukrishna Naidu for vanabhojanam Dharmam to be celebrated in the month of Karthagai. The properties were being managed for the purposes of charity by Muthukrishna Naidu, who is the paternal uncle of the plaintiffs. He mortgaged this and other properties to the defendant for a certain sum of money. The defendant brought a suit on that mortgage and got the property sold in Court-auction and purchased it himself with the leave of the Court. The plaintiffs now sue to recover the property for the performance of the charity claiming that the mortgage and the subsequent sale are not binding on the property, the property having been dedicated to charity. The District Munsif gave a decree as sued for but the Subordinate Judge on appeal has dismissed the suit holding that so long as Muthukirshna Naidu and his sons are alive the plaintiffs have no cause of action for the recovery of the possession of the property and that plaintiffs must bring a suit under Section 92 of the C.P.C., to recover possession after removing Muthukrishna Naidu, from the trusteeship and to have a new trustee appointed and to recover the property, for the new trustee to manage it. It is argued before me that the reasons given by the Subordinate Judge are not right. The first contention of the appellants learned Vakil is that under Ex. A under which the properties are set apart for charity, Muthukrishna Naidu has not been made the sole trustee but all that has been done is that he is to manage the charity' on behalf of all members of the family entitled to the property including the plaintiffs; in other words Muthukrishna was merely acting as a manager and not as a trustee; he was to manage on behalf of the members of the family who had divided under Ex. A, for the purpose of carrying on the charity and that when Muthukrishna Naidu's management became injurious to the trust it would be open to the plaintiffs, as members of the charity, to set aside the Muthukrishna Naidu's management and. take the management themselves. I am not satisfied that the view of the provision in Ex. A is correct I think Ex. A makes Muthukrishna Naidi the trustee for the charity and that before the plaintiffs can interfere and sue for possession of charity property, they must properly, and legally remove Muthukrishna from the trusteeship. The charity being vanabhojanam, which was admitted to mean according to the Subordinate Judge, the feeding of the poor, is a, public charity and being a public charity, to which s trustee had been appointed under Ex. A I do not sec how the plaintiffs can set aside that management, at their will and pleasure and take upon the management themselves, Whether it be on the ground that Muthukrishna has mismanaged the charities, or on the ground that he had become insolvent, either of which may be a good ground, for removing him, I think he cannot be ignored by the plaintiffs; but he must be formally remove by Court and for that purpose a suit under Section 92, C.P.C., is necessary and this suit as brought is, therefore, not sustainable.

2. It was argued before me by the learned Vakil for the respondent that the object of the trust which is stated to be vanabhojanam dharmamin the month of Karthigai is, too vague and, therefore, the must itself should be held not to have, been properly constituted. He relied upon Sarat Chandra Ghose v. Pratap Chandra Ghost 21 Ind. Cas. 194 : 40 C. 252 and Runchordas Vandravandes v. Parvatibai 1 Bom. L.R. 607 : 7 Sar. P.C.J. 543 : 12 Ind. Dec. 485 (P.C.) do not think these cases really apply because here we have got a definite object, namely, feeding the poor. I think that it is. a proper and good charity. If it were. a mere endowment for 'dharmam'. in general, the words used in the Privy Council case above cited, it would, mean any kind of charity without any definiteness whatever or if property is dedicated to numerous kinds of charities as was the case in Sarat Chandra Ghose. v. Pratap Chandra Ghose 21 Ind. Cas. 194 it being left to the trusttee, to do. what he thought fit in the matter the dedication should be set aside as being too vague and the charity is not properly constituted; but here the charity is vanabhojanam. I think it is definite enough to constitute a proper charity. Though I am not inclined to agree with the respondent's contention in this matter, I think the objection that the suit as framed is not sustainable must be upheld, and the second appeal must be dismissed with defendants costs.


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