TMI Blog1938 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... shortly stated. These properties appear to have belonged to one family at one time and were endowed for the purpose of a chatram (which may be regarded as a Dharmasala or an inn) long ago. The origin of the endowment is lost in obscurity. The parties however agree that the properties belonging to this family were divided in three shares. The plaintiff and one Alagappa Mudaliar claimed 5/12 and 6/12 out of these properties respectively while defendant 1 stated that she was entitled to 2/12. Some arrangement appears to have been arrived at between them in regard to these shares but we are not concerned here with what was allotted to each of them. It appears that following the arrangement regarding their private properties, these three branches managed this charity and considered themselves to be entitled as 'huqdars' in the endowed properties to the same extent until 10th February, 1914, when Alagappa Mudaliar assigned his rights in those properties to the original plaintiff in consideration of a sum of ₹ 1,300. In view of the present contention raised on behalf of the parties, I shall have to examine this document in its appropriate place. To resume the narrative, it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or nothing and wasted; but the duty of conducting the charities should nonetheless be held to have devolved on him as he contends that the share in the properties was sold subject to a charge in regard to charities, and since this share in the properties was found not to belong to the vendor; the charge or burden on the properties and the right to manage the charities should still be found to have been transferred to the original plaintiff as the right to manage the charities was merely ancillary to the ownership which had been transferred to the plaintiff. On the other hand, it is contended by Mr. Doraiswami Aiyar for the appellants that on a true construction, the document must be taken to have been executed with the object of transferring the property as well as the right of conducting the charities and the price should be taken to have been paid not only for the properties but for the right attached to these properties as well. In view of the fact that no attempt was made by the original plaintiff to get rid of the transaction covered by this deed on account of a mutual mistake of parties as to the transferor's title, if the parties were really under a mistake, or on accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid must be taken to cover both the properties and the right of management. Moreover it is not correct to say that the right to manage the charities was merely ancillary to the properties conveyed under the deed of sale. There is a great deal of force in the contention that if the words 'absolute rights' are not taken to cover the right of management, there are no other words in the sale deed under which this right could be held to have been transferred. 8. It would not perhaps be incorrect to infer from the litigation (O.S. No. 32 of 1916) which followed soon after the execution of Ex. F, when these properties were claimed to belong to the original plaintiff, but to substantiate which no evidence had been produced by him, that the parties to the document were under no misapprehension as regards the nature of the properties transferred under this deed. In view of the words of the deed, however it is unnecessary to rely on this circumstance as, in my opinion, this document was intended to convey the right of management to the original plaintiff, and that the consideration was paid either wholly or at all events partially for this right as well. There was only one contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the public opinion of that district and having that sort of family interest in the maintenance of this religious worship which would insure its due performance. It seems very unreasonable to suppose that the founder of such a corporation ever intended to empower the four trustees of his creation at their mere will to transfer their office and its duties, with all the property of the trust, to a single individual who might act according to his sole discretion, and might have no connection with the families from which the trustees were to be taken. 12. The next ease cited was that of Kuppa Gurukkal v. Dora-swami Gurukkal (1882) I.L.R. 6 Mad. 76. This also related to a religious trust. It was held in this case that an alienation of hereditary religious trusts or offices to a person not in the line of heirs was not legal, but the learned Judges considered it unnecessary to determine whether an alienation to a person standing in the line of heirs should be upheld. In the course of their judgment it was observed: To hold so would tend to public mischief in inducing needy incumbents of hereditary religious offices who desired to sell them to give a dishonest recognition to qualif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice of management should be held in common by the family of the original holders. It is hardly necessary to discuss the other cases which were cited by Mr. Duraiswami Aiyar but the decision in Sundaramhal Ammal v. Yogavana Gurukkaf (1914) 26 M.L.J. 315 : I.L.R. 38 Mad. 850 might be referred to with advantage. 16. Mr. Patanjali Sastri has relied on SriMahant v. Govindacharlu (1934) 68 M.L.J. 295 . This was a case of an alienation of office of an archaka (pujari) which was held to be valid as it was made without any consideration to one in the line of heirs and was not considered to be opposed to the interests of the institution. It was also observed in this case that the duties entrusted to an archaka were frequently carried out in temples by proxy and an alienation of the office was for these reasons upheld. It may be interesting to note the gradual development of this branch of the law and of the various views expressed by eminent judges at various times; but the case has no application to the facts of the present case, where the office in dispute is first of all that of a trustee of a charitable endowment and not of an archaka and, what is more important, this has been found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the alienation of the office of a trustee to an endowment either charitable or religious and to the principle enunciated in Alagappa Mudaliar v. Sivaramasundara Mudaliar (1895) I.L.R. 19 Mad. 211. with which we are in respectful agreement, and which follows the Privy Council decision in Rajah Varma Valia v. Ravi Varma Kunhi Kutty (1876) L.R. 4 I.A. 76 : I.L.R. 1 Mad. 235 (P.C.), we must hold that Alagappa Mudaliar could not alienate his office in favour of the original plaintiff, and the alienation conferred no right on him. It is hardly necessary to consider how Alagappa's position would be affected if he were alive, since he had executed a sale deed himself; but it is clear that his sons could not be prejudiced by their father's conduct in transferring the office which he could not legally alienate, and which could not, in any case be, of any validity after his death. Consequently Alagappa's heirs should still be considered to be joint trustees with the original plaintiff and defendant 1. 17.The next point raised by the learned Counsel for the respondents was that since the original plaintiff had been functioning as a trustee de facto, he was entitled to institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decided on an entirely different principle, but with great deference I am not prepared to accede to the correctness of the decisions in Mahomed Ibrahim v. Sundaram Chetti A.I.R. 1926 Mad. 1066 and Moidin Bibi Ammal v. Rathnavelu Mudali (1926) 51 M.L.J. 598 which followed two Allahabad cases in Benarsi v. Altaf Hussain (1921) 63 I.C. 171 and Muiz-ud-din v. Md. Ikhlaq A.I.R. 1924 All. 59. 21. I should like to examine the Allahabad cases first on which both the Madras decisions are based. Taking up Benarsi v. Altaf Hussain (1921) 63 I.C. 171, I find that one Altaf Hussain had filed a suit for an injunction against Benarsi restraining him from building on a piece of land which was situated between an imambara and his premises on the ground that certain Muharram ceremonies were being performed by him as a muttavalli every year. The suit was dismissed by the trial Court, on what grounds one cannot say, but was partially decreed in appeal. The matter was then taken up to the High Court where Altaf Hussain's locus standi to institute the suit was challenged on the ground that muttavalli's rights were inalienable, and a transfer of such rights to Altaf Hussain would not confer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his removal, it was held by the High Court in appeal that he had acted as a de facto muttavalli of the trust sufficiently long to be entitled to remain in possession of the trust property as such. The facts of this case are not known, but if the learned Judges were deciding the case on a consideration of the question of limitation, it would be an entirely different matter. On the other hand, if they were prepared to raise a presumption in favour of his being a de jure muttavalli, the case does not take us any further than what was decided in Niamat Ali v. Ali Raza (1914) I.L.R. 37 All. 86. 24. The other de. facto trustee mentioned in this case is Muiz-ud-din himself. When he tried to realise the balance of certain money by execution, to which Bashiruddin was found to be entitled by virtue of the decree which was passed by the High Court in his favour, Muiz-ud-din's allegation that he was appointed to be a muttavalli by his father was not accepted but in his capacity as a muttawalli de facto, he was held entitled to execute the decree on two conditions which are to a certain extent conflicting. The first condition was that he must agree 'to credit' the money realised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad case cited above. The only work on Muhammadan law to which any reference was made was that of Tyabji's, but the remark made by the learned author: That a person not validly entitled to act as muttavalli, by taking charge of it and purporting to manage the property thereby becomes a trustee de son tort and answerable as such, 27. does not seem to have been followed and does not certainly support the conclusion at which the learned Judges arrived. 28. The next case relied upon by the learned Counsel for the respondents was that of Appasami Pillai v. Ramu Thevar (1931) 61 M.L.J. 887. A study of the facts of that case would however show that the case was finally decided by Ramesam, J., on the ground that Neelambal Achi's right of possession passed on Kandaswami's death, which occurred before he could accept the trustee's office, to the plaintiff and not on Kandaswami's heirs as he, that is, the plaintiff was found to be the reversioner to Neelambal's estate. The other remarks in the judgment are in the nature of obiter and have no application to the facts of the present case. It has been admitted in the present plaint that the lease to the present d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acto guardians but with what have been called trustees de facto. I have not come across any case, nor has one been cited at the bar which may lead me to the conclusion that the position of such trustees under the Hindu law is any different from what they occupy under other systems of law. 32. I have therefore no hesitation in holding that a trustee de facto is really no other than what is known to law as a trustee de son tort and his position does not improve, as remarked by their Lordships of the Judicial Committee, by describing him to be a trustee de facto. As a trustee de son tort he cannot be held to confer a right on himself to maintain these suits, even if they are taken to have been instituted for the benefit of the charities. 33. Moreover, having found that Alagappa's heirs still continue to be trustees of the Chattram, and that it was not legally permissible for the original plaintiff and his heirs to file or continue, these actions without his (Alagappa's) heirs being parties to the suit either as plaintiffs or as defendants, the question of de facto trusteeship assumes, in my opinion, secondary importance merely. 34. The general principle of law is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case in which we should exercise our discretion - even if it exists - in the plaintiff's favour and take away an advantage which his clients have gained, on account of the plaintiff's persistence, by lapse of time. Having considered the matter very carefully, it appears to us that the plaintiffs' abstinence from making Alagappa or his heirs parties to the suits was deliberate and they were trying to fight shy of Alagappa or his heirs in this litigation. The request by their counsel at the fag end of the cases is too belated to be seriously noticed. It seems to be unnecessary for me to determine the question of limitation which might have had to be care fully considered if I had been inclined to exercise my discretion in the plaintiffs' favour. But in view of their conduct and the prejudice which may be caused to the appellants it appears to me that the exercise of discretion in their favour would neither be judicious nor judicial. 38. In these circumstances we are constrained to accept the appeals and dismiss these suits. The appellants will have their costs in both the courts. Appeal No. 111 of 1935. Venkatasubba Rao, J. 39. I agree with the judgment j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties belonged to the plaintiff's family or to the charity. No attempt was made by the plaintiff to prove the private ownership set up by him, but at the close of the case and just before the delivery of the judgment, applied, that the choultry should be impleaded as a party. His application was granted, but his suit, on some ground with which we are not concerned, was dismissed. An appeal was taken and the District Judge, Mr. Jackson holding that by the time the charity was brought on the record the claim became statute barred, confirmed the lower Court's decision. It was while this appeal was pending that the present suit was brought in 1921. From Mr. Jackson's judgment a second appeal was filed in the High Court, which in 1930, was withdrawn by consent of parties, it being agreed that the matters in controversy were to be left at large. Such in brief are the antecedent facts of this litigation. 41. Defendants 2 and 3 pleaded that they and their ancestors were in possession from time immemorial enjoying permanent occupancy rights; they raise a further contention, a plea in limine, that the transfer by Alagappa on which the plaintiff relied, was inoperative and inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s an important qualification - Is the arrangement intended for the convenient management of the charity, the assignor reserving to himself his right of control and resumption, or, is it intended to divest him once for all of his right of management? In the former case, the arrangement is good but in the latter, is not. This view of the law has been accepted in several later decisions, of which it is sufficient to mention Rajaram v. Ram Boy (1912) 24 M.L.J. 75. That a transfer of trusteeship, if for consideration, that is to say, for the personal or pecuniary benefit of the transferor is utterly bad, is not disputed by Mr. Patanjali Sastri, the respondents' (the plaintiffs') learned Counsel. But he contends that a transfer for no consideration and in favour of the next heir or a member of the same family is valid and ought to be recognised. On this point there has been a conflict of opinion in the various Courts, and even in the same Court divergent views have been expressed. It is unnecessary to pursue this matter, as I am clearly satisfied that the transfer, if any, in the present case (I use the words 'if any' as will be seen, advisedly) is for the pecuniary benef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued that the operative part of the document is that which deals with the property and not the passage quoted above, which deals with duty and the right of conducting the charities . Here I must observe that Mr. Patanjali Sastri is put into a dilemma. If his contention is right, there has been no transfer at all of the office in question, in which case the plaintiff is out of Court. Lastly, it remains to observe that on. the learned Counsel's own showing the document is vitiated by a mutual mistake, both the parties being under the mistaken. impression, that the property belonged to the family and not to the charity. If this be so, the document must be deemed to be of no effect and the right of trusteeship has not passed to the plaintiff. 47. In the result, as Mr. Duraiswami Aiyar rightly contends (1) either there has been a sale of the office, in which case the transaction is illegal and cannot be given effect to, (2) or there has been no transfer of the trusteeship at all, on which hypothesis the plaintiff's claim to Alagappa's share falls to the ground. Whichever is the correct view, Alagappa the cotrustee has not been represented in the suit; Misconduct on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a party to the suit. It is not the province of either the High Court or the District Judge to force that course upon them. The objection was clearly taken; and they, for motives of their own, deliberately abstained from making him a party to the suit. 50. history of the previous suit filed by the plaintiff in 916 seems to be repeating itself. On that occasion he put forward the false claim that the properties belonged to the family and not to the trust. Mr. Jackson, the District Judge, referring to the late addition of the choultry as plaintiff, remarked thus: Of course the Court had no right to allow an entirely fresh plaintiff to be brought into the suit in this precipitate manner, but apart from the question of procedure the chatram which adopted the first plaintiff's plaint in toto had no locus standi. It was in terms suing in 1920 a trespasser who had come in in 1906. 51. Holding that by the time the chatram was brought on the record the action had become time-barred, the learned District Judge dismissed the suit. In the present plaint also defendants 2 and 3 are, as already stated, treated as trespassers. Granting that the suit was in time when it was filed, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Dharmachar (1902) 13 M.L.J. 146 : I.L.R. 26 Mad. 514. But that case deals with what is known as possessory title. As against a wrongdoer, prior possession of the plaintiff in an action of ejectment is sufficient title; that is all that has been decided. The two Madras cases to which I have referred are thus, in my opinion, clearly wrong. The contention therefore that a de facto manager is entitled to a decree, assuming that it can now be raised, must be overruled. 54. In the result, the lower Court's decree is reversed and the suit is dismissed with costs throughout. 55. These appeals Nos. 111 and 112 of 1935 having been posted for being spoken to this day, the Court made the following ORDER 1. The costs will be paid by Medai Dalavai Ranganatha Mudaliar (respondent No. 1), Medai Dalavai Kumaraswami Mudaliar (respondent No. 2), and Chellammal, the widow of Medai Dalavai Shanmuga Kumaraswami Mudaliar, from the assets in their hands of Thirumalayappa Mudaliar. Appeal 2. It follows from my judgment in the connected appeal that the lower Court's decree here is also reversed and the suit is dismissed with costs throughout. - - TaxTMI - TMITax - Indian Laws ..... X X X X Extracts X X X X X X X X Extracts X X X X
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