HINDU COMMUNITY IN GENERAL AND CITIZENS Vs. COMMISSIONER

JUDGEMENT

(1.) A. S. NO. 851 of 1989: an interesting question of law arises in the appeal in A. S. No. 851 of 1989 regarding the character of the Will left by one Palaniappa Chettiar (testator) and his wife Chinnammal @ Rangammal (testatrix) and the question is whether the Will left by them dated 26. 9. 1968 is a joint Will or a joint and mutual Will. The question that arises in A. S. No. 606 of 1989 is whether the Will executed by Chinnammal @ Rangammal dated 27. 11. 1980 is a true, valid and genuine Will. Apart from the two questions in both the appeals, other points that arise are, whether the suit has been properly instituted after getting proper leave of the Court under section 92 CPC, whether the properties left by the testator and the testatrix are trust properties and whether the trust has been validly created and also other incidental questions regarding the maintainability of the appeal.

(2.) THE brief facts of the case are as under:- (a) The plaintiffs are the appellants in A. S. No. 851 of 1989 and they have filed the appeal against the dismissal of suit in O. S. No. 76 of 1981 on the file of Subordinate Judge, Gobichettipalayam. The other appeal, A. S. No. 606 of 1989 is filed by the defendants 4 and 5 in the suit against the adverse finding regarding the validity of the will Ex. B-109. (b) O. S. No. 76 of 1981 was instituted before the Subordinate Judge, Gobichettipalayam by the plaintiffs, Senniappa Chettiar and G. K. Jayajothimurughan in their representative capacity on behalf of Hindu Community in General and Citizens of Gobichettipalayam. The suit was filed for a decree arranging for the management of the suit trust by the defendants 1 to 3 by entering on their duties as trustees or by appointing new trustees and settling a scheme to ensure an effective and proper administration of the trust and its properties. There is no prayer for costs. The suit was instituted on the basis of a Will dated 27. 9. 1968 (Ex. A-5) executed by N. Palaniappa Chettiar and his wife Chinnammal @ Rangammal. The eo-nominee first plaintiff is the brother of Rangammal and the eo-nominee second plaintiff is the first plaintiff's daughter's son and as persons interested in the trust, they filed the suit for proper administration of the trust as envisaged in Ex. A-5. (c) Though the plaint runs to nearly 12 pages, the essential facts necessary for the disposal of the appeals are that Palaniappa Chettiar was a self-made man and he migrated from a village called, Siruvalur in or about 1930 to Gobichettipalayam. He had a lucrative shroff and money-lending business. Palaniappa Chettiar earlier executed a Will dated 15. 7. 1931 (Ex. A-6) and the Will shows his philanthropic bent of mind and he bequeathed his properties for charities subject to variance depending upon begetting issues between him and his wife Chinnammal @ Rangammal. He also mentioned the list of properties as well as the list of charities to be done in the Will executed as early as on 15. 7. 1931 (Ex. A-6 ). Palaniappa Chettiar later executed a Will dated 15. 7. 1956 (Ex. B-14) and the Will has been taken into consideration only for identifying the signature of Palaniappa Chettiar and not for proving the contents of the document as seen from the deposition of D. W. 1 at page 140 of typed-set of papers. The Will of Palaniappa Chettiar dated 15. 7. 1931 was cancelled by him by executing the document, Ex. B-110. The suit Will Ex. A-5 was executed by Palaniappa Chettiar and his wife Chinnammal @ Rangammal and the Will was also registered in the Office of Sub-Registrar, Gobichettipalayam. (d) According to the plaintiffs, Palaniappa Chettiar acquired extensive properties of his own and he also acquired properties in the name of his wife Chinnammal @ Rangammal for his benefit and she had no wherewithal. Though a plea of benami was set up, the trial Court rejected the said plea on the ground that the properties held by Chinnammal @ Rangammal were not purchased benami by Palaniappa Chettiar. Mr. T. R. Mani, learned senior counsel for the second appellant has not challenged the said finding and proceeded with the appeal on the basis that the properties standing in the name of Palaniappa Chettiar are his properties and the properties standing in the name of Chinnammal @ Rangammal are her own properties. (e) According to the plaintiffs, Palaniappa Chettiar and his wife Chinnammal @ Rangammal by the suit Will dated 27. 9. 1968 (Ex. A-5) created a trust for charitable objects and during their life time, Palaniappa Chettiar and his wife were to manage the properties and perform the charities and if they were unable to perform the charities and after the lifetime of both, the Committee consisting the defendants 1 to 3 was to fulfil the charitable objects. The charitable objects as set out in the Will are as under:-a) A Chatram to be constructed at Palani in the names of both of them for use by all Hindus, to be administered by the Endowment Commissioner. b) To arrange for Naivedyam during early morning pooja of Palani Andavar at Palani. c) During the Thai Poosam festival at Palani Annadanam to be performed in their name. d) At Gobi where they prospered, an Educational Institution is to be established in their names to be administered by the Government or Municipal Administration. e) A Maternity Home to be built in the names of both of them to be managed by the Government. (f) According to the plaintiffs, the trust is to be controlled and the objects of the trust are to be accomplished by utilising the income from the properties held by Palaniappa Chettiar and his wife Chinnammal @ Rangammal and the charities are to be performed by the Committee consisting the defendants 1 to 3. The case of the plaintiffs is that the suit Will dated 27. 9. 1968 (Ex. A-5) is a joint and mutual Will and it became irrevocable on the death of Palaniappa Chettiar on 5. 10. 1969, and on the demise of her husband, Chinnammal @ Rangammal, the surviving testatrix received the benefit under the Will. An alternative contention is also raised that if the Will is not a joint and mutual Will, it will take effect at least as regards Palaniappa Chettiar's properties and his wife Chinnammal @ Rangammal has no right to meddle with the same. (g) The suit came to be instituted, because a subsequent Will of Rangammal (Ex. B-109) dated 27. 11. 1980 was set up by the defendants 4 and 5 in derogation of the trust which would amount to breach of trust. According to the plaintiffs, the defendants 4 and 5 belong to different community and the fourth defendant was a Bill Collector in Gobi Municipality and the fifth defendant is his wife and she was a domestic servant doing cooking work and washing clothes of Chinnammal @ Rangammal and with a view to interfere with the trust properties, they set up the Will dated 27. 11. 1980 as if it was executed by Rangammal in favour of the defendants 4 and 5. The case of the plaintiffs is that the Will dated 27. 11. 1980 is not a true and valid Will and it was not executed by Rangammal in sound disposing state of mind, but it was brought about by the defendants 4 and 5 by way of fraud, undue influence and coercion. (h) The defendants 6 to 13 are purchasers of some of the properties from Rangammal and from the defendants 4 and 5 and according to the plaintiffs, the defendants 4 to 13 are trespassers of the trust properties. The defendants 14 and 15 are tenants and the 16th defendants is Palani Devasthanam, a beneficiary under Ex. A-5 Will and the 17th defendant is also a subsequent purchaser. (i) Along with the suit, the plaintiffs have filed three applications in I. A. Nos. 193 to 195 of 1981. I. A. No. 193 of 1981 was filed for leave of the Court to institute the suit in the representative capacity. The trial Court in paragraph-60 of the judgment referred to the order made in I. A. No. 193 of 1981 and recorded a finding that the procedure prescribed under Order I, Rule 8 C. P. C. was complied with and paper publication was effected and objections were received from the defendants. As far as I. A. No. 194 of 1981 is concerned, it was filed to dispense with the notice under section 80 C. P. C. It is relevant to mention that notice under section 80 C. P. C. was not issued, as the plaintiffs filed the suit against the defendants 1 to 3 not in their official capacity, however, out of abundant caution they filed the application under section 80 (2) C. P. C. to dispense with the issue of prior notice under section 80 C. P. C. The trial Court in paragraph-59 of the judgment held that since the proceedings were not instituted against the defendants 1 to 3 in their official capacity, there was no need to issue notice under section 80 C. P. C. and that finding is also not seriously disputed before us. I. A. No. 195 of 1981 was filed to grant leave under section 92 CPC to sue on behalf of Hindu Community and Citizens of Gobichettipalayam. The certified copy of the order passed in I. A. No. 195 of 1981 is placed before us and it is seen that the trial Court ordered notice in the said application and some of the defendants filed counter and ultimately, the trial Court allowed the application by order dated 8. 2. 1982. (j) Written statements have been filed by the defendants 1,4,5,6,7,9,10,11,12,13,15 and 16. The 8th defendant filed a memo adopting the written statement filed by the defendants 4 and 5. In the written statement filed by the first defendant, no plea has been raised regarding the notice under section 80 C. P. C. but the written statement proceeds on the basis that a direction should be issued to the plaintiffs to avail the remedies under the Tamil Nadu Hindu Religious and Charitable Endowments Act to decide the nature of the institution. The first defendant has also not taken a plea that the suit is barred under the provisions of the H. R. and C. E. Act. The defendants 4 and 5 in their written statement has stated that they are claiming title to the suit properties under the Will executed by Rangammal dated 27. 11. 1980. It is stated that Rangammal was the sole heir of her husband Palaniappa Chettiar and she became absolute owner of the entire properties of her husband and it is only in respect of the properties that remained undisposed of by Rangammal, the Will could be said to operate regarding the purpose of the charities and hence, the properties dealt with by Rangammal by way of sale or conveyance cannot be questioned by the plaintiffs. It is not necessary to burden the judgment with the contentions raised by other defendants as the case involves the question of construction to be placed on the Will executed by Rangammal and Palaniappa Chettiar (Ex. A-5 ).

(3.) THE trial Court framed as many as 17 issues and on the basis of evidence let in by both the parties, the trial Court held that the Ex. A-5 Will is a true and valid Will and it is a joint Will and not a joint and mutual Will and Rangammal is entitled to revoke Ex. A-5 Will. The trial Court also held that no valid trust was created over the suit properties under the Indian Trusts Act. The trial Court also held that the plaintiffs are not entitled to a scheme decree. The trial Court held that it is not clear as to whether the Will Ex. A-5 would take effect regarding the properties belonging to Palaniappa Chettiar. The trial Court held that the suit is not barred under section 108 of the H. R. and C. E. Act and the plaintiffs are entitled to sue in their representative capacity and the suit is not bad for want of notice under section 80 C. P. C. The trial Court held that the properties standing in the name of Rangammal were not held by her benami for the benefit of her husband and she is entitled to deal with her husband's properties and her properties and the sales in favour of defendants are valid. The trial Court also held that since the trust is not established, the suit is not maintainable. The trial Court held that Ex. B-109 Will in favour of defendants 4 and 5 is not a true and valid Will and was not executed by her in a sound and disposing state of mind, and ultimately, the trial Court dismissed the suit. It is against the judgment and decree of the trial Court dismissing the suit, the plaintiffs have filed the appeal, A. S. No. 851 of 1989, and against the finding regarding the validity of Ex. B-109, the defendants 4 and 5 have filed the appeal, A. S. No. 606 of 1989. Other defendants have not filed any appeal or cross-objections.