MUTHUSAMI NAIDU Vs. RAYALU NAIDU

JUDGEMENT

(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 Exhibit A, which says that 46 cents of land are set apart for Vanabhojanam charities, paying an assessment of Rs. 1-3-0. 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 Vanabbojanam Dharmam, to be celebrated in the month of Karthigai. The properties were being managed for the purposes of charity by Muthukrisbna 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 the appeal has dismissed the suit, holding that so long as Muthukrishna Naidu and his sons are alive, the plaintiffs have no cause of action, for the recovery of the possession of the property and that plaintiff must bring a suit under Section 92 of the Civil Procedure Code, 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 Yakil is that under Exhibit 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 the 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 Exhibit 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 Muthukrishna Naidu's management and take the management themselves. I am not satisfied that this view of the provisions in Exhibit A is correct. I think Exhibit A makes Muthukrishna Naidu 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 oharity 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 a trustee bad been appointed under Exhibit A, I do not see how the plaintiffs can set aside that management at their will and pleasure and take upon themselves the management. Whether it be on the ground that Muthukrishna has mismanaged the charities or on the ground that he had become insolent, 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 removed by Court; and for that purpose, a suit under Section 92, Civil Procedure Code, 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 Dharmam, in the month of Karthigai, is too vague and therefore the trust itself should be held not to have been properly constituted. He relied upon Sarat Chandra Ghose V/s. Pratap Chandra Ghose (1913) 40 Cal. 232 and Runchordas V/s. Parvatibai (1899) 23 Bom. 725. I 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/s. Pratap Chandra Ghose (1913) 40 Cal. 232, it being left to the trustee, 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 the defendant's costs.