VAITHINATHA AIYAR Vs. STYAGARAJA AIYAR

JUDGEMENT

(1.) This appeal arises in a suit filed under Section 92 of the Civil Procedure Code with reference to a choultry and the properties alleged to be endowed for the use of that choultry. The two plaintiffs are relations of the founder and the two defendants allege to be the lawfully appointed trustees under the will of one Suriyanarayjna Aiyar who according to the plaintiffs was the last surviving trustee of this charity. Suriya-Narayana Aiyar was one of five brothers, the sons of one Kalyanarama Iyer. The other four brothers were Sivasubra-maniya Aiyar, Venkataranga Aiyar, Swaminatha Aiyar and Sivarama Aiyar. Kaliyanarama Aiyar had also several daughters one of them being the mother of Thiyagaraja Aiyar, the 1st plaintiff. 2nd plaintiff is the son of the adopted son of another daughter of Kaliyanarama Aiyar. One daughter of Kaliyanarama Aiyar named Subbuthayi Animal is still alive all the sons and the other daughters having died previous to the institution of the suit. The first question which has been argued before us by Mr. T. Kangachariar, the learned vakil for the defendants, is whether the plaintiffs have an interest within the meaning of Section 92 of the Civil Procedure Code sufficient to enable them to maintain the suit. He relies strongly on the decision of a Full Bench of this Court in T. K. Ramqfhaudra Iyer. v. Paratneswaram Unni (1918) I.L.R. 42 Mad. 360 which lays down that a person suing under the provisions of this section must have a substantial interest and not merely a remote contingent or hypothetical interest in the charity in question. Since that decision a bench of this Court have considered its effect in Appeal No. 196 of 1918, the facts of which have much resemblance to the facts of this case. Whether the plaintiffs instituting a suit of this character have an interest within the meaning of Section 92 or not has to be determined upon the facts of each case bearing on the relation of the plaintiffs to the charity with reference to which the suit is brought. In this case the plaintiffs are, as stated, the descendants of the founder of the charity. The 1st plaintiff on the death of Subbuthayi Animal in the absence of Kaliyanarama Aiyar s dayadees, would be entitled to succeed to the family properties.

(2.) Mr. Rangachariar has argued that there is evidence to show that there are dayadees of Kaliyanarama Aiyar in ex-istance. That evidence is of an extremely vague character, and in any case it is not shown that they are taking any interest in the preservation of the charity or in any of the affairs of the family generally. With respect to Subbuthayi Ammal also, it does not appear that she interests herself in the proper maintenance of the charity. The 1st plaintiff resides in Madras, but he occasionally visits Perumandi village, the ancestral home where the choultry is situate. The 2nd plaintiff is a pleader practising in the Native State of Pudukotta. He has several houses in Kumbakonam and he often visits the ancestral family house. No doubt it has been laid down that the mere fact that the plaintiff suing under Section 92 C. P. C. is a Hindu and is entitled to worship in a temple would not give him interest enough to maintain a suit under Section 92, C. P. C. In applying the analogy of that case to this choultry we have to bear in mind the further facts that the plaintiffs belong to the family of the founder and that fact would naturally give them an interest in the family charity. It has been ruled by a Full Bench of this Court in Gauranga Sahu v Siuicvi Mata (1916) I.L.R. 40 Mad 612 that the heirs of the founder have considerable interest in the maintenance of the charity, and the Hindu law gives them the right to nominate trustees in the case of a vacancy and in the absence of any provision in the deed of endowment for the appointment of trustees. In our opinion therefore the Full Bench decision of this Court above referred to does not preclude us from holding that the plaintiffs having regard to the facts proved in the case have an interest within the meaning of Section 92 C. P. C. sufficient to enable them to maintain the suit.

(3.) The next question argued by Mr. Rangachariar is of a still more general character, namely, that this choultry is not a public trust, but is nothing more than a private guest house built by Kaliyanarama Aiyar and to a suit in respect of it therefore the provisions of Section 92 C.P.C. have no application. The appellant s contention is that a public trust of this character was created later on by the provisions of the will of Sun Aiyar already referred to, and that until then it was private-property of the family or at the most a private trust which the members of the family were entitled to put an end to in certain contigencies. At all events it is said there was no dedication to public uses except under the will of Suri Aiyar.