LT. COL. J.K. DHAIRYAM, BY POWER OF ATTORNEY AGENT, R.S. AMRITHARAJ AND TWO OTHERS Vs. DR. GEORGE DESRAJ DHAIRYAM

JUDGEMENT

(1.) Plaintiffs 1 and 2 are the son and daughter and the third plaintiff is the widow of late Dr. J. Dhairyam, a retired Superintendent of Government Mental Hospital. The defendant Dr. C.D. Dhairyam is another son of late Dr. Dhairyam. Deceased Dhairyam, according to the plaintiffs, had opened a Mental clinic and Nursing Home after his retirement at No. 16/3 Sterling Road, Nungambakkam, which, the plaintiffs claim, attained in due course great popularity and attracted patients even from foreign countries. The third plaintiff assisted her husband in running the Nursing Home and clinic and attended to the needs of the patients. The late Dr. Dhairyam got the defendant trained in Psychiatry and two other children, Antony Shamraj and Shanti Mrinalini, qualified in medicine with the desire that they should assist him in running the clinic. But the late Dr. Dhairyam died on 30th September, 1956 leaving behind, his widow the third plaintiff, four sons and two daughters of whom one of the sons, Christy Amritharaj died in 1963 and another, Antony Shamraj is in England. The plaintiffs say that subsequent to the death of their father Christy Amritharaj and Joseph Kanmaraj (first plaintiff) and one of the daughters Naggi Amritraj relinquished and renounced their rights in the properties of their father, and agreed to create a trust in respect of his estate including the clinic and nursing home and agreeably a trust dead was executed on 19th October 1957 with plaintiffs, the defendant and deceased Amritharaj Dhairyam as trustees. Under this deed, all the properties of late Dr. Dhairyam were transferred to the trustees to be held in trust for the beneficiaries, the plaintiffs, Christy Amritharaj Dhairyam and defendant, subject to the limitations specified therein. Pursuant to this arrangement the trustees entered into possession and management of the estate, the Clinic and Nursing Home and the defendant was paid an allowance of Rs. 500 a month which was subsequently raised to Rs. 650. Shamraj Dhairyam did not return to India. The defendant was placed in charge of day -to -day work in the Clinic and Nursing home and the amounts received were being paid over to the trustees. After the death of Christy Amritharaj in 1963, plaintiffs 1 and 2 became the sole trustees ; but the defendant assumed a hostile attitude and wanted to be in sole control and management of the Clinic and Nursing home. He refused to pay the collections to the trustees or the third plaintiff, set up adverse claims to the Clinic and declined to account to the trustees. In 1965, the defendant filed a suit in the City Civil Court, for a declaration that the business of Dhairyam Mental Clinic and nursing home and its adjunct, Rehabilitation Centre is exclusively his own and for restraining the plaintiffs from interfering in regard to them and filed I.A. 663 of 1965, for an interim injunction restraining the plaintiffs from interfering with the running of the Mental Clinic and Nursing Home. The defendant has alleged in the suit that he is solely entitled to the Clinic and nursing home and is not liable to render any account to any of the plaintiffs. This position is opposed to truth and disregarding the solemn obligation undertaken by him under the trust deed. The City Civil Court passed an interim order in the exercise of its inherent jurisdiction and while restraining the third plaintiff from discharging the customary and usual duties and plaintiffs 1 and 2 from performing their functions as trustees expressed that it was so directing, in order to keep the object of the trust and to continue it.

(2.) The plaintiffs aver that since the power of the City Civil Court are limited they have to approach this Hon'ble Court for the usual remedies available to them and that has necessitated institution of this suit under the Original Side Rules, for a decision of the questions relating to the administration of the Trust. The questions in respect of which determination is thus sought to relate to the rights of plaintiffs 1 and 2 (1) to carry on and manage the Clinic and Nursing Home and employ the necessary staff on such remuneration as they may decide, (2) to control, advise and guide the defendant in regard to the day -today administration of the Clinic and Nursing Home ; (3) to collect moneys payable to the Clinic and Nursing home and their right to make payments towards obligations ; (4) the right of the third plaintiff to a share in the net profits of the Clinic and her right to receive 4/7 parts of the net income; (5) the right of the defendant to an allowance and one part of the net income (6) the right of the plaintiffs to restrain the defendant to prevent them from exercising con trot over the running of the Clinic and Nursing home ; and (7) such other questions incidental to the above questions.

(3.) The defendant does not admit that father Dhairyam started any Clinic and Nursing home. According to him, the small Clinic started by the father became defunct and the present Clinic and Nursing Home was started by him. He filed the suit, O.S. 229 of 1965, in the City Civil Court, as the plaintiffs attempted to interfere with his professional work and in C.M.A. 24 of 1965 filed by the plaintiffs against the order of interim Injunction, the appellate court while dismissing the appeal, has directed the parties to act according to the terms of the compromise. The defendant contends that the issues raised in this Originating Summons are directly and substantially in issue in the aforesaid suit. The family property consisted of only the building and compound and not even for estate duty purposes was either the Nursing Home or the Clinic or the equipment valued as part of father Dhairyam's estate. The late Dhairyam never expressed any desire to constitute any family concern. Christy Amrithraj, Joseph Kantharaj and Maggie Amritharaj never renounced any right in any property ; but got all that they needed from the mother who was in charge of the household in the same compound. And, the plaintiffs have now joined after this defendant refuted to part with fail income with the vindictive object of ruining his professional career.