G K PERUMAL Vs. SENNIAPPA CHETTAIR

JUDGEMENT

(1.) DEFENDANTS 4 and 5 in O.S. No. 76242 of 1981 on the file of the Sub Judge, Gobichettipalayam are the appellants. The appeals are against the common order of Abdual Hadi, J. in C.M.P. Nos. 9999 of 1989 in A.S No, 606 of 1989, C.M.P. No. 10967 of 1989 in A.S. No. 859242 of 1989 and C.M.P.No 7960 of 1989 in A.S. No. 606242 of 1989 respectively. The respondents filed the suit O.S. No. 76242 of 1981 for entrusting the managment of the suit trust to defendants 1 to 3 or for appointing new trustees and for setting a scheme For the effective and proper managment of the trust. One, N. Palaniap-pa Chettiar owned considerable properties in and around Gobichttipalayam. His wire was Chinnammal alias Rengammal. They had no children. Palaniappa Chettiar executed a will on 15-7-1931 which clearly shows his philanthropic attitude and charitable disposition. Talanippa had carried on money lending business in the name of his wife, benami for his Own benefit. Therefore, properties came to be purchased in her name as well. On 27-9-1968 both Palaniappa and his wife executed a will in respect of all their properties. The main aim was to create a trust and provide for the administration of the charities named in the trust. The plaint also says that the appellants (defendants 4 and 5) were putting forward a will said to have been executed by the wife Rengammal on 27-11-1980 after the death of her husband. Palaniappa died on 5-10-1969 and his wife died on 24-12-1980. According to the plaint allegations, the appelants who are strangers to the family had influenced Rengammal to execute the will dated 27-11-1980 which is totally in derogation of the trust contempalated by Palaniappa. The appellants are the beneficiaries under the will dated 27-11-1980 DEFENDANTS 6 to 13 had purchased certain properties from Rengammal. The appellants had also sold certain properties after the death of Rengammal. Pending disposal of the suit, the respondents filed I.A. No. 196 of 1981 for the appointment of a Receiver to take charge of the suit properties. In the application, it is alleged that the appellants were making frantic attempts to sell all the properties and appopriate as much as possible. With a view to preserve the suit properties and prevent waste and deterioration of the properties, it was alleged that a Receiver was necessary.

(2.) THE appellants filed a written statement disputing the maintainability of the suit and denying the allegation that Rengammal held properties benami and the real owner was Palaniappa. It was contended that the will dated 27-9-1968 did not create a trust. It did not satisfy Section 6 of the Indian Trust Act. After the death of Palaiappa, his wife Rengammal succeeeded to all the properties. She had sold certain properties in the interest of the estate. She was residing in Door No. 15, Kuppaiyar Street, Gobichettipalayam till her death. After her death, the appellants, executors of her will dated 27-11-1980 are residing in the said Door No. 15. THEy are said to administering the entire estate. It is also admitted that the appellants had sold certain properties. It is also claimed that the first appellant had purchased certain properties from Renagammal and had improved the same. So far as the application for appointment of Receiver is concerned, it was contended that the appellants being possession under the will dated 27-11-1980 the respondents cannot seek to dispossess them by appointing a Receiver.

(3.) AS against this learned Senior Counsel Mr. M.R. Narayanasami places reliance on the following points in support of his claim for the appointment of an advocate receiver. (1) The circumstances that prevailed when Sathiadev, J. appointed the first appeallant as party receiver have changed to a large extent after the disposal of the suit; (2) In much as Ex. B.109 has been found to be not true and invalid, the previous will dated 27-1-1968 (Ex. A-5) become operative: (3) Prima facie, therefore, the properties are Trust properties and they should be safeguarded; (4) The suit was filed after getting sanction under Section 92 of the Civil Procedure Code and in a representative capacity and the main relief is for framing a scheme under the will dated 27-1-1968 (Ex..A-5) (5) The conduct of the 1st appellant from the beginning should be assessed before continuing him as receiver; (6) The trial Court did not consider the objections of the respondents on the several accounts filed by the 1st appellant and its order is perfunctory. A perusal of the accounts shows that prima facie, the 1st appellant has not shown any income from the large extent of properties.