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CASE NO.: Appeal (civil)  3399 of 2000

PETITIONER: Rajavel

RESPONDENT: Thirunavukkarasu  & others

DATE OF JUDGMENT: 07/02/2007

BENCH: Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT: J U D G M E N T

TARUN CHATTERJEE, J.             This is an appeal at the instance of the defendant/  appellant from the judgment of the High Court of  Judicature at Madras passed in a second appeal whereby  the concurrent judgments of the courts below were set  aside and the suit for injunction filed by the  plaintiff/respondent in respect of the ‘C’ schedule  property of a partition deed dated 9th December, 1949  (hereinafter referred to as the "suit property") executed by  one Manickam Ammal, widow of Narayanswami  Mudaliar, who was the original owner of the suit  property, and Thailammal, his widowed daughter-in-law,  was decreed.   

The case made out by the plaintiff/respondent in  the courts below may briefly be stated as follows:-

By the partition deed, as noted hereinabove, the  suit property was set apart for performing charities  relating to performance of guru puja every year at Sri  Kumbeswara Swamy Temple at Kurinjipadi Kuppam  village in the State of Tamil Nadu.  The partition deed  also contained a clause that income from the suit  property shall be spent for the aforesaid charity. One  Adhanamozhi Mudliar, son of Verappa Mudliar, was  appointed the trustee of the suit property. The said deed  also contained that after the death of Adhanamozhi  Mudliar, his descendants would continue to be in  possession of the suit property and perform the charities.   As per the pedigree filed by the counsel for the appellant  the plaintiff/respondent is the grandson of the original  owner and the defendant/appellant is the great-grandson  of the brother of the deceased trustee’s grandfather.  The  trustee, Adhamanozhi Mudliar, put Manickasami, father  of the defendant/appellant into possession of the suit  property, as he was unable to perform his duties as  trustee.  The said Manickasami entrusted the  defendant/appellant with the trust and on his death, the  defendant/appellant continued to perform the charities.   Even after the death of Adhamanozhi Mudaliar, the  defendant/appellant continued to be in possession of the  suit property and also continued to perform the charities.

In the plaint, the plaintiff/respondent as a grandson  of the original owner claimed to be entitled to enjoy the  suit property and perform the charities.  It was also  pleaded that the defendant/appellant had no right to be

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in possession of the suit property or to perform charities  out of the income of the suit property.  When the  defendant/appellant failed to deliver possession of the  suit property in spite of repeated requests, the  plaintiff/respondent was constrained to file the suit for  injunction.

The defendant/appellant filed his written statement  denying the material allegations made in the plaint. It  was stated specifically in the written statement that  Adhamanozhi Mudaliar, the original trustee was not  taking care of the suit property and was not performing  the charities, and on the other hand, the  defendant/appellant was performing the charities out of  the income of the suit property and, therefore, the suit  for injunction filed against the defendant/appellant must  be dismissed.  It was also stated in the written statement  that the suit was not maintainable as the  plaintiff/respondent only prayed for possession instead of  asking for declaration of the trusteeship in his favour.  It  was also pleaded that the suit was barred by limitation in  view of the fact that the suit property was in possession  of the defendant/appellant for more than twelve years  and also that the defendant/appellant had been regularly  performing the charities, and therefore, he had acquired  the title to the suit property by way of adverse  possession. Thus, the question of granting a decree in  favour of plaintiff/respondent could not arise at all.   It  was also denied in the written statement that the  plaintiff/respondent was a descendent of the original  trustee, Adhamanozhi Mudaliar and, therefore, was  entitled to perform the charities after the Trust was  created.  According to the appellant, after the death of  Manickaswami in the year 1969, he was performing the  charities and, therefore, it was denied that the charities  were not performed by him nor was it correct to say that  the defendant/appellant had misappropriated the income  arising out of the suit property.  Accordingly, it was  prayed that the suit ought to have been dismissed with  costs.

After framing issues including the issue relating to  the maintainability of the suit, the Trial Court dismissed  the suit, inter alia, on the ground that the suit had been  filed to harass the defendant/appellant due to past  enmity and that the plaintiff/respondent could not ask  him to render accounts of the suit property.  In appeal,  the judgment of the trial court was affirmed, inter alia, on  the finding that the defendant/appellant was entitled to  continue as trustee of the suit property as the  plaintiff/respondent could not prove that he was a near  relative of the deceased trustee. The appellate court also  dismissed the appeal on a finding that  defendant/appellant had acquired title over the suit  property by way of adverse possession.  The appeal was  also dismissed on a finding that the suit was barred by  limitation.  Feeling aggrieved, the plaintiff/respondent  filed a second appeal in the High Court of Judicature at  Madras challenging the judgments of the courts below by  which the suit was dismissed.  At the time of admission,  the High Court framed the following substantial question  of law:

"Whether the lower appellate court was  right in holding that the suit was barred

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by limitation contrary to provisions of  Section 10 of the Limitation Act ?"

The second appeal came up for hearing initially on          9th December 1996 and the same was allowed in the  absence of the defendant/appellant.  However, on an  application made for recall of the said judgment, the High  Court again heard the learned counsel for the parties and  thereafter allowed the appeal of the plaintiff/respondent  again, whereby, the concurrent judgments of the courts  below were set aside and the suit was decreed in favour  of the plaintiff/respondent.

 Feeling aggrieved by the judgment and decree of  the High Court passed in the second appeal, the special  leave petition was filed in respect of which leave has  already been granted.

We have heard the learned counsel for the parties  and examined the judgments of the High Court, appellate  court and the trial court in depth and detail. The High  Court, while deciding the appeal, had framed only the  substantial question of law as noted hereinabove.  Although the High Court had framed the aforesaid  substantial question of law, even then it went on to hold  on merits and set aside the concurrent findings of the  courts below.  The High Court also rendered a finding  that the dedication of the suit property to charity was not  absolute and that the ownership of the same was  retained by the original owner. The High Court also held  that the plaintiff/respondent was entitled to succeed in  the suit as an heir of the original owner of the suit  property on a finding, as stated above, that the  dedication of the suit property was not absolute.

The High Court also held that it was not open to the  deceased-trustee to delegate his rights in respect of the  suit property to the father of the defendant/appellant.  In  our view, the High Court had not framed the proper  substantial questions of law while deciding the appeal.  It  is true that the issue relating to limitation was involved  but the other substantial questions of law, which were  required to be framed by the High Court, were not  framed. We are, therefore, of the opinion that, as noted  hereinabove, the second appeal should be sent back to  the High Court for a fresh decision after framing the  substantial questions of law and thereafter it should  decide the appeal afresh on the questions framed thereof.   Accordingly, the following substantial questions of law  are hereby formulated by us:

1.      Whether the suit filed by the Plaintiff  merely seeking relief of possession of trust  property without claiming the relief of  declaration of trusteeship was  maintainable?

2.      Whether the claim of the Plaintiff to  trusteeship on the ground of propinquity  with the deceased trustee is contrary to  the rules of succession under law,  accordingly priority to an agnate as  against a cognate and the defendant as  agnate is a nearer relative of the deceased  trustee?

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3.      Whether the defendant would be an "heir"  of the deceased trustee, for the purposes of  the partition deed making the dedication  and hence entitled to continue as a trustee  to the exclusion of all others?

4.      Whether at any rate, the right of  hereditary trusteeship devolves upon the  defendant by reason of his recognition as  such by the deceased trustee and/or on  account of de facto/constructive  trusteeship exercised for a long period?   

It was brought to our notice by the learned counsel  for the defendant/appellant that plaintiff/respondent in  the meantime had alienated a part of the suit property  pending disposal of appeal, contrary to the order of  status quo passed by this Court on 15th December 1999  and subsequent order dated 8th May 2000, restraining  sale of the suit property. Since we are remanding the  appeal back to the High Court for a decision afresh, it  would not be necessary for us to go into the question  whether such sale could be held to be invalid in view of  the grant of interim order by this Court which can be  taken up by the High Court.  The High Court would be at  liberty to grant appropriate relief to the parties in respect  of such sale.

For the reasons aforesaid, we set aside the  judgment of the High Court and send the appeal back to  it for disposal afresh. It is made clear that the High Court  shall decide the appeal on the basis of the substantial  questions of law framed by us along with the substantial  question of law already framed by it in accordance with  law and on merits after giving opportunity of hearing to  the parties.  We also make it clear that it would be open  to the parties to bring on record additional evidence, if  any, under Order 41 Rule 27 of CPC and for this purpose  it would be open to either of the parties to file an  application.  If such an application is filed, the High  Court shall decide the same in accordance with law.

Accordingly, the appeal is allowed to the extent  indicated above.  There will be no orders as to costs.