B S ADITYAN Vs. R KANNAN ADITYAN

JUDGEMENT

(1.) This O.S. Appeal has been filed against the order passed by a learned single Judge of this Court on 2nd Sept., 1982 in Appln. No. 3124 of 1982 in Appln. No. 165 of 1981.

(2.) The facts leading to the filing of Application No. 3124 of 1982 may be briefly stated as follows. The late S. B. Adityan created a trust called the 'Thanthi Trust' on 1-3-1954. While creating the trust he appointed besides himself, his elder brother S. T. Aditayan and his elder son B. R. Adityan as trustees. On 195-1959 B. R. Adityan resigned. The respondents herein Kannan Adityan and Kathiresan Aditayan are the sons of the said B. R. Adityan. On 22-5-1959 the founder appointed his another son B. S. Aditayn the first appellant herein and also the Educational Trustee Co. (P) Ltd., as trustees. B. S. Adityan was appointed as Director-Trustee. On 8-11-1961 the founder S. B. Aditayan resigned. On 27-12-1963 S. T. Adityan the elder brother of the founder also resigned from the trusteeship. On 20-6-1978, the founder appointed again his elder son B.R. Adityan who has resigned in 1959, as additional trustee. On 306-1978 the founder appointed himself as additional trustee. On 1-7-1978 the founder appointed his elder brother S. T. Adityan again as additional trustee. ON 16-9-1978 S. B. Adityan the founder, his elder brother S.T. Adityan and the founder's elder son B.R. Adityan resigned from the trusteeship. It may be mentioned that before the resignation of S. B. Adityan, S. T. Adityan, and B.R. Adityan there were certain proceedings initiated by the parties on the Original side of the High Court, only by the Appellant herein challenging the appointment of additional trustees by the founder and the other by S. T. Adityan and B. R. Adityan for removing the appellant from the trusteeship. In view of the resignations of the three persons, the proceedings came to a close.

(3.) The respondents herein who are the sons of B.R. Adityan the elder son of the founder, filed Appln. No. 165 of 1981, under Section 92, C. P. C. to file a suit against the appellants. The relief asked for in the plaint is for a decree appointing the respondents as additional trustees and directing the appellants 1 and 2 to render a true and faithful account of their administration of the trust from the dates of the assumption of charge as trustees. Along with the Appln. No. 165 of 1981, the respondents filed a copy of the plaint to which was annexed a list of documents relied on by them. The first appellant filed a detailed counter-affidavit. One of the main contentions urged by the appellants is that the application to file a suit under Section 92, C. P. C. is unsustainable since the respondents are not persons interested in the trust within the meaning of S. 92, C. P. C. and the proposed suit is essentially for vindication of their personal rights and that the prayer for the other relief is only a camouflage to bring the suit within S. 92, C. P.C. It is also contented that the suit is not filed in a representative character. It is unnecessary to refer in detail to the other contentions raised in the counter-affidavit except to state that in para11 of the counter-affidavit it is averred that the respondents are students and are living with their parents under their care and protection at No. 2, Third Crescent Park, Madras 20. The first respondent is said to be just 20 years' old and second respondent is about 18 years old and that the application under S. 92, C. P. C. has been filed by the father and the respondents have been used as mere name lenders. It is further made clear in para 34 that the respondents are not persons interested in the public trust and thier alleged interest in illusory and if all they claim any interest in the trust, it is only to bolster up their private interests and the personal interest of thier father.