Full Judgment Text
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PETITIONER:
KT. N. RM. THENAPPA CHETTIAR & ORS.
Vs.
RESPONDENT:
N. S. KR. KARUPPAN CHETTIAR & ORS.
DATE OF JUDGMENT:
31/01/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
CITATION:
1968 AIR 915 1968 SCR (2) 897
ACT:
Trust-founded for certain religious purposes with
contributions from a number of persons-whether all of them
’founders’ of the trust-Right of any one interested in
proper management of trust to file, a suit for removal of
managing trustee or for framing a scheme of management.
HEADNOTE:
The appellants filed a suit praying for the settlement of a
scheme in respect of a trust and for an account of the
management of the trust by C and for certain incidental
reliefs. Their case was that the trust was a joint
foundation made on November 12. 1919 by the ancestors of
various parties to the suit and the first respondent’s late
father C; that it was founded for conducting certain special
and ordinary Pujas in the Mutt and for the feeding of the
pupils. It was alleged that at the time of the foundation C
contributed Rs. 25,000 and four others contributed Rs. 6,250
each and the joint founders had at the time of foundation
appointed C, who was the largest contributor, as the Manager
and executive trustee. On November 27, 1943 C had nominated
the second respondent, his grandson, as the executive
trustee. Various allegations of mismanagement of the trust
were made against the second respondent claiming that he had
stopped the Pujas and various other activities for which the
trust was created. The Trial Court dismissed the suit on
the finding that C was the sole founder of the trust who had
conducted it with the money contributed by himself and other
persons and that at the time of the foundation the other
four contributors did not reserve for themselves any right
in the trusteeship of the Mutt. It also held that the
charges of mismanagement were unfounded and no case was made
out for framing a scheme. An appeal to the High Court was
dismissed.
On appeal to this Court.
HELD : (i) The High Court was right in finding the
appellants had failed to establish that they were joint
founders of the trust and that they were entitled in turns
to management in proportion to their contribution.
It is not a correct proposition of law to state that every
donor contributing at the time of foundation of a trust
becomes a founder of the trust. It may be that in a
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particular case all the contributors of a trust fund become
the founders of the trust itself, but the question when a
contributor would become in law a joint founder of the trust
would depend not merely upon the fact of his contribution
but also upon the surrounding circumstances proved in the
particular case and the subsequent conduct of the par-ties.
[901 H]
In the Matter of the Endowed Schools Act, 1869-and In the
Matter of the St. Leonard, Shoreditch, Parochial Schools, 10
A.C. 304 and Settikara Venkatarama Chettiar v. 0. P.
Damodaram Chettiar, 51 M.L.J. 457. referred to.
Even in the case of a private trust a suit can be filed for
the removal of the trustee or for settlement of a scheme for
the purpose of effectively carrying out the objects of the
trust. If there is a breach of trust or mismanagement on
the part of the trustee, a suit can be brought in a civil
court by any person interested for the removal of the
trustee and for the
898
proper administration of the endowment. In the present case
the appellants being contributors to the trust were
interested in the proper administration of the trust and had
a sufficient right to bring a suit in case there was
mismanagement or breach of trust on the part of the managing
trustee and for framing of a scheme. However, in view of
the concurrent finding of both the lower Courts that the
allegations of breach of trust or mismanagement had not been
established, no ground had been made out on behalf of the
appellants for framing of a scheme or for the removal of the
second respondent. [904 A-C]
Pramatha Nath Mullick’s case, 52 I.A. 245; Manohar Mookerjee
v. Peary Mohan, 24 C.W.N. 478; and Bimal Krishna’s case, 41
C.W.N. 728; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 355 of
1965.
Appeal by special leave from the judgment and order dated
April 4, 1961 of the Madras High Court in Appeal No. 99 of
1957.
N. C. Chatterjee, R. Thiagarajan for R. Ganapathy Iyer,
for the appellants.
K. Gopalachari and R. Gopalakrishnan, for the respondents.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought on behalf of the plain-
tiffs, by special leave, against the judgment of the Madras
High Court dated April 4, 1961 in Appeal No. 99 of 1957.
In the suit which is the subject-matter of this appeal, the
plaintiffs prayed for the settlement of a scheme in respect
of a Trust Known as Sina Ravanna Mana Pana Sona Guru Puja
Mutt at Pillamangalam Alagapuri, Tiruchnapalli District and
for an account of the management of the Trust by the late N.
S. Chockalingam Chettiar and for certain incidental reliefs.
The case of the plaintiffs was that the Trust was a joint
foundation made on November 12, 1919 by Sinnakaruppan
Chettiar, father of plaintiffs I and 2 and grand-father of
plaintiffs 3, Raman Chettiar, father of plaintiff no. 4,
Subramaniam Chettiar Plaintiff no. 5, Perianan Chettiar,
father of defendant no. 3 and Chockalingam Chettiar, father
of defendant no. 1 and grand-father of defendant no. 2. It
was said that the Trust was founded for conducting puja to
God Vinayagar installed in the Mutt, by an Oduvar; to do
special pujas for the Samayarcharyars, viz., Appar,
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Sundarar, Sambhandar and Manickavachakar and ordinary pujas
to the other 63 Nayanmars on their birth days; to conduct a
Thevaram Patasala, and feeding the Pupils. It was alleged
that at the time of the foundation Chockalingam Chettiar
contributed Rs. 25,000/Sinnakaruppan Chettiar, Raman
Chettiar, Subramaniam Chettiar, and Perianan Chettiar
contributing Rs. 6,250/- each. Hundies were passed by the
four contributors for Rs. 6,250 each in favour
899
of the first defendant’s father on November 12, 1919 and
they were cashed in due course. it was alleged that the
joint founders had at the time of foundation appointed
Chokalingam Chettiar who was the largest contributor as the
manager and executive Trustee and the latter had constructed
buildings for the Mutt and bought lands in Manakkarai
village, Mannargudi taluk. On November 27, 1943,
Chockalingam Chettiar nominated defendant no. 2, his grand-
son as the executive Trustee. It was alleged by the
plaintiffs that defendant no. 2 had stopped the pujas to the
Nayanmars and Samayacharyas and had discontinued the
Thevaram school and the feeding of the boys. Several other
acts of mismanagement were alleged in the plaint. The suit
was mainly contested by the second defendant who alleged
that the sole founder of the Mutt was the late N. S.
Chockalingam Chettiar, his grandfather, who at first
installed the Vinayakar image and also the 63 Nayanmars and
established the pujas for the four Samayacharyars and the
Nayanmars. He was also the sole trustee and was in
exclusive management from the foundation of the trust till
November 29, 1943 when by a registered instrument he
appointed the second defendant and his descendants as
hereditary trustees. It was denied that the plaintiffs were
joint-founders, though they had made contributions for the
management of the Mutt. It was said that from the very date
of contribution the plaintiffs never bargained for any
rights as trustees but they accepted N. S. Chockalingam
Chettiar as the sole trustee. The charge of mismanagement
was totally denied by the defendants and it was said that
the trust was being maintained and conducted on a much
grander scale than during the trusteeship of the senior
Chockalingam. It was asserted that the daily puja to the
Vinayakar and the ordinary and special pujas to the
Nayanmars and the Samayacharyars were all performed with
scrupulous regularity. The suit was dismissed by the
Subordinate Judge of Pudukkotai by his judgment dated
January 31, 1957. The finding of the Subordinate Judge was
that the sole founder of the trust was the senior
Chockalingam Chettiar who conducted it with the aid of
moneys contributed by himself and other persons and that at
the time of the foundation the other four contributors did
not reserve for themselves any right in the trusteeship of
the Mutt. It was also found by the Subordinate Judge that
the charges of mismanagement were unfounded and no case was
made out on behalf of the plaintiffs for framing a scheme.
The judgment of the Subordinate Judge was affirmed by the
High Court in Appeal No. 99 of 1957 by its judgment dated
April 4, 1961. The High Court substantially agreed with the
finding of the Subordinate Judge. It was held by the High
Court that the evidence made it quite clear that the
contributors agreed to leave the management of the trust
solely in-charge of the senior Chockalingam. The High Court
also agreed with the Subordinate Judge that the
900
plaintiffs had failed to establish that all the
contributories were joint founders and that they were
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entitled to turns of management in proportion of ’their
contributions. The only matter on which the High Court
expressed its disagreement with the Subordinate Judge was
with regard to the date of the foundation of the trust. The
High Court expressed the view that the trust was founded in
1919 but the Subordinate Judge found that the trust had been
founded much earlier, though it took a definite shape in the
year 1919. As regards the charge of mismanagement, the High
Court agreed with the Subordinate Judge and held that none
of the charges had been established and accordingly there
were no grounds made out for the framing of a scheme or the
removal of the second defendant from the management of the
trust.
The first question to be considered in this appeal is
whether the appellants are right in their contention that
they were joint founders of the trust along with the senior
Chockalingam. It was contended on their behalf that Exs.
A-1 and A-3 described the contributions of the sum of Rs.
6,250/- as having been made towards 1/8th ’Pangu’ or share.
Reference was also made to Ex. A-5, ledger account of the
Mutt in which the contribution is described as the share
capital. It was pointed out by Mr. N. C. Chatterjee that
the vilasam of the trust S.R.M.P.A.S. supports the claim of
the appellants that they were joint founders. The High
Court has, however, rightly pointed out that these two
circumstances are not decisive. There is on the contrary an
admission on ’behalf of the first plaintiff that the
contributories were not treated as founders. In the course
of his evidence the 5th plaintiff as P.W. 1 stated as
follows :
"As Chockalingam Chettiar held the largest
number of shares the other four requested him
to administer the suit trust maintain accounts
and render accounts to the four other shares
on demand............ All the five pangudars
were present when the decisions to found the
charity was arrived at. We decided that
senior Chockalingam should manage the charity
to be founded. None of us demanded that the
pangudars should administer the trust by
rotation. None of us suggested that the terms
of the endowment should be reduced to writing.
We wanted senior Chockalingam to consult us
with reference to important matters pertaining
to the administration. We did not define the
nature of the matters with reference to which
we should be consulted.
................................
901
Since the inception of the trust no meeting of
the five pangudars was ever held. Nor were
minutes of such proceedings kept.
Chockalingam used to have informal
consultations with us. At no time, between
1919 and 1945, the year of senior
Chockalingam’s death did we ever call upon him
to show us his accounts. Nor did he show us
his accounts. We never asked him to what the
total income from the lands and buildings was.
I do not remember the particulars of
information which senior Chockalingam
voluntarily gave us."
The conduct of the parties subsequent to the foundation of
the trust is also not consistent with the claim now put
forward on behalf of the appellants. Senior Chockalingam
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acquired considerable properties between 1919 and 1945 on
behalf of the trust. Exhibit B-2, dated June 23, 1920, Ex.
B-3, dated January 27, 1927, Ex. B-5, dated June 18, 1931,
Ex. B-6 dated June 22, 1931, Ex. B-7 dated January 4, 1934,
Ex. B-8 dated March 2, 1934, Ex. B-9 dated September 30
1934, Ex. B-10 dated September 30, 1934, Ex. B-11 dated
June 6, 1936 and Ex. B-12 dated April 5, 1937 are all sale
deeds solely in the name of the senior Chockalingam. The
mutt building had always stood in the name of the senior
Chockalingam in the register of Alacapuri Panchayat Union.
The oral evidence adduced on behalf of the respondents which
has been accepted both by the Subordinate Judge and by the
High Court also shows that there was a total non-
interference on the part of the plaintiffs in the management
of Chockalingam till he appointed the second defendant as
his succeeding trustee under Ex. B-1 and there was a total
non-interference also with the management of the second
defendant after that date. P.W. I also admitted in his
evidence that the second defendant was appointed as the
successor of senior Chockalingam and at the time of the
appointment all the plaintiffs and defendant no. 3 agreed
that defendant no. 2 should be so appointed as the sole
managing trustee. If the plaintiffs had any right to manage
the trust by turns, as they now claim, it is not likely that
they would have agreed to the second defendant being
appointed as the sole trustee in place of senior
Chockalingam. In our opinion, the High Court was right in
reaching the finding that the plaintiffs have failed to
establish that they were the joint founders of the trust or
that they were entitled in turns to management in proportion
to their contributions.
It is not a correct proposition of law to state that every
donor contributing at the time of foundation of a trust
becomes a founder of the trust. It may be that in a
particular case all the contributors of a trust fund become
the founders of the trust itself, but the question when a
contributor would become in law a joint founder of the trust
would depend not merely upon the fact of his
902
contribution but also upon the surrounding circumstances
proved in the particular case and the subsequent conduct of
the parties. In In the Matter of the Endowed Schools Act,
1869-and In the Matter of the St. Leonard, Shoreditch,
Parochial Schools(1) it was held by the House of Lords that
where a charity is established by. subscriptions the
original subscribers alone are the founders, and the later
benefactions are on the footing of the original foundation.
At page 308 of the Report Earl of Selborne, L.C. stated
"Now let us consider what is the reasonable
manner of applying to such a charity the word
’founder’. It is reasonably clear that not
every subscriber or contributor could be a
founder having control over the school, or
capable within the meaning of the Act of
Parliament of impressing on it, by his own act
or by his own authority a denominational
character. It is also reasonably plain, when
you have once started with a foundation in
1705, though by small beginnings, yet that
everything afterwards added, every accretion
to the original subscriptions, which was not
an endowment for any new and special purpose,
must be taken to be upon the footing of the
original foundation; not a new foundation, but
something contributed for the purpose of the
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original foundation.............. Now it is
quite conceivable that a number of persons
might have met at that time, and might have
come to a common agreement as to the purposes
for which they should subscribe and solicit
subscriptions; and if that had been embodied
in writing, and if they had solicited subs-
criptions on the footing that either they
themselves were to make a law for the charity
and give it statutes, or that this was to be
done by others in a particular manner, or if
in any original documents soliciting sub-
scriptions there had been a written law laid
down for the charity expressing the purposes
for which it was to be founded, those persons
so initiating the subscriptions, and so
declaring the purpose for which they were made
and solicited, might be regarded as founders
within the meaning of this clause. But it
appears to their Lordships to be quite
impossible to attribute that character to
those who come after them-whether they
contributed to the building fund or any other
fund in aid of the existing charity or not.
They did not found the charity; they found it
existing; they merely aided and assisted it."
(1) Io A.C. 304.
90 3
In Sattikara Venkatarama Chettiar v. 0. P. Damodaram Chet-
tiar(1) there was a deed of trust executed by V in favour of
19 persons known as Chettithanakaras which stated that he
alone was unable to make and set up idols of Ramalingam and
Choudeswari Amman in the Choudeswari Amman Temple
Devasthanam built by him and that the nineteen persons
agreed to raise a fund and to put up the idol in the temple
and according to the agreement that they set up the idols of
Ramalingam and Choudeswari Amman and they agreed to purchase
property for endowing the temple. and the document then went
on to state "that the nineteen persons should manage the
temple from generation to generation." Funds were collected
by V and by the nineteen persons mentioned in the document;
they built the temple installed the idols in it, and col-
lected funds for the upkeep of the temple and managed the
temple under the deed of trust. It was held by the Madras
High Court that the deed of trust conferred the hereditary
right to the trusteeship upon V and the nineteen
Chettithankars. At page 461 of the Report the High Court
stated as follows :
"If persons invite subscriptions on a
representation that they would devote the
subscriptions so collected to a particular
purpose and they divert the subscriptions to
some other purpose the subscribers have to
object to the funds being diverted to other
purposes than those for which they were
collected. But so long as the subscribers do
not object to the person or persons collecting
subscriptions for building or endowing any
particular institution, the person or persons
so building or and endowing it have the right
to provide for its management for all time to
come. There is nothing in the evidence to
show that the persons who gave subscriptions
gave them on the understanding that the
founders should not have the hereditary right
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of management. All that appears from Ex. A
is, that subscriptions were collected, funds
were raised, a temple was built and idols were
installed and the management was in the hands
of Venkatarama Chetti and others and all of
them."
As we have already stated, the appellants have failed to
prove that all the contributories were the joint founders of
the trust and that they were all in turns entitled to
management in proportion to the amounts that they had
contributed. On the other hand, the evidence makes it quite
clear that the contributories agreed to leave the management
of the trust solely in the hands of the senior Chockalingam
and subsequently of defendant no. 2. We are accordingly of
the opinion that Mr. N. C. Chatterjee has been unable to
make good his argument on this aspect of the case.
(1) 51 M.L.J. 547.
904
We proceed to consider the next question arising in this
appeal, viz., whether the plaintiffs are entitled to ask for
the settlement of a scheme even on the assumption that they
were not co-founders of the trust. The parties in this case
have proceeded on the footing that the trust is a private
trust, but the authorities establish that even in the case
of a private trust a suit can be filed for the removal of
the trustee or for settlement of a scheme for the purpose of
effectively carrying out the objects of the trust. If there
is a breach of trust or mismanagement on the part of the
trustee, a suit can be brought in a civil court by any
person interested for the removal of the trustee and for the
proper administration of the endowment.-(See, for example,
Pramatha Nath Mullick’s case(1) and Manohar Mookerjee v.
Peary Mohan(2). There are also authorities to the effect
that a Civil Court may frame a scheme in the ,case of a
private endowment at the instance of the parties interested.
The question has been discussed by the Calcutta High Court
in Bimal Krishna’s case(3) and it was held in that case that
a scheme for the administration of a private endowment can
be framed by a Civil Court. Mookerjee, J. observed in that
case that in India the Crown is the constitutional protector
of all infants and as the deity occupies in law the position
of an infant, the shebaits who represent the deity are
entitled to seek the assistance of the Court in case of
mismanagement, fraud or maladministration on the part of the
shebait and to have a proper scheme for management framed
for the administration of the private trust. In Pramatha
Nath Mullick’s(1) case to which we have already made
reference, the Judicial Committee itself directed the
framing of a scheme in the case of a private endowment and
the case was expressly remanded to the trial court for that
purpose. In the present case the appellants being
contributors to the trust are interested in the proper
administration of the trust and, in our opinion, they have a
sufficient right to bring a suit in a Civil Court in case
there is mismanagement or breach of trust on the part of the
managing trustee and for framing of a scheme.
But the question in the present appeal is whether the
appellants have made out any grounds for framing of a scheme
or for the removal of the second defendant from the
management of the trust. It was alleged by the appellants
in the plaints that ’the trust had been mismanaged by the
senior Chockalingam and by his grandson, 2nd defendant and
both have been guilty of breach of trust. The main charge
levelled against defendant no. 2 was the nonperformance of
the pujas and the closing down of the Thevara Patasala and
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the feeding of the pupils. The Subordinate Judge has
:examined the evidence dealing with the charge and found
that it
(1) 52 I.A. 245.
(3) 41 C.W.N. 72 .
(2) 24 C.W.N. 478.
90 5
was not established. The High Court, upon analysis of the
evidence, has reached the same conclusion. It was also
alleged by the appellants that Account Books, Exs. A-9 and
A-10 have been fabricated by defendant no. 2 but the
Subordinate Judge and the High Court both held that the
allegation was not true. Certain other charges were also
levelled by the plaintiffs against defendant no. 2 and
senior Chockalingam but the High Court as well as the
Subordinate Judge found that these charges were not
substantiated. The question whether defendant no. 2 or -the
senior Chockalingam was guilty of breach of trust or of acts
of mismanagement is a question of fact and in view of the
concurrent finding of both the lower courts on this question
we are of opinion that no ground has been made out on behalf
of the appellants for framing of a scheme or for removal of
defendant no. 2 from the office of the managing trustee. It
follows that the suit brought by the appellants has been
rightly dismissed.
For these reasons we hold that the judgment of the High
Court dated April 4, 1961 in Appeal No. 99 of 1957 is
correct and this appeal must be dismissed with costs.
R.K.P.S. Appeal dismissed.
Sup.C.I./68-16-1-69-2,500-GIPF.
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