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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. 1