TMI Blog2022 (5) TMI 1449X X X X Extracts X X X X X X X X Extracts X X X X ..... amy, the Trust has accepted all the movable assets of Dr. MAM Ramaswamy to the Trust. Oral gift was part of birthday gift on 30.09.2015, which was accepted by the Trust as recorded in the minutes dated 06.11.2015. The contention raised by the Respondent/Applicant in CA/69/2016 that the probate of the Will dated 18.02.2015 executed by Dr. MAM Ramaswamy is pending before the Hon'ble High Court of Madras in OP No. 894/2016 and hence it cannot be relied up for any purpose, does not hold much water since the recitals made in the Will is clear and explicit and that the Trust is not claiming any right as an executor or legatee under the Will dated 18.02.2015, however the Trust is only seeking to rely upon the Will dated 18.02.2015 for collateral purpose - a perusal of the Will dated 18.02.2015 would clearly posit the fact that the relationship between Dr. MAM Ramaswamy and Mr. MAMR Muthiah was so strained that he did not even allow his adopted son Mr. MAMR Muthiah to perform obsequies or rituals in relation to his death. Dr. MAM Ramaswamy Chettiar of Chettinad Charitable Trust is entitled to step into the shoes of Dr. MAM Ramaswamy in so far as adjudication of TCP/1/2016 is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name and style of Dr. NAM Ramaswamy Chettiar Trust. (ii) Further, the Petitioner has also executed a Deed of Declaration of Trust dated 09.02.2015 registered as Doc. No. 51/2015 in the office of SRO Mylapore constituting a trust under the name and style of Dr. MAM Ramaswamy Chettiar of Chettinad Charitable Trust. A perusal of the Trust Deed of Dr. MAM Ramaswamy Chettiar Trust reveals the following facts a) Under clause 8 namely the objects of the Trust, to safeguard the moveable properties of the settlor and to ensure that he is enjoying the same as beneficiary without interruption during his lifetime. b) Under clause 7, Any other movable properties that the founder shall transfer to the trust by means of delivery of possession in future. c) Clause 9 shows the beneficiaries of Trust. It shows that Dr. MAM Ramaswamy Chettiar shall be the sole beneficiary of the Trust during his lifetime. Under clause 9(3) it is stated that after the lifetime of the settlor, the properties of this Trust would go to Dr. MAM Ramaswamy Chettiar of Chettinad Trust, the charitable trust registered under Document No. 51 of 2015 dated 09.02.2015 in the office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Dr. MAM Ramaswamy Chettiar Trust was held in which it was recorded as follows; The Trustees placed on record the oral gift of all the moveable assets owned and possessed and mentioned in the Will dated 18.02.2015 registered as Doc. No. 16 of 2015 before the Sub Registrar, Mylapore by the founder Dr. MAM Ramaswamy to Dr. MAM Ramaswamy Chettiar Trust made by him by oral declaration to the Trustees in the present of Mr. V. Jayaraman Mr. K. Muthuvellayan on his birthday on 30th September 2015. The Trust has accepted the oral gift of all the movable properties . 7. It was submitted that the aforesaid circumstances show that Dr. MAM Ramaswamy listed out all the movable assets owned and possessed by him in the Will dated 18.02.2015 registered as Doc. No. 16/2015 and handed over the original Will to Dr. A.C. Muthiah and made an oral gift of all the movable assets owned by him by making a declaration to the trustees in the presence of Mr. Jayaraman and Mr. K. Muthuvellayan on his birthday on 30.09.2015 and that the Trust has accepted the oral gift of all the movable properties. Consequently, it was submitted that there is a gift of the fixed deposits and loans and advances by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here a party to a proceeding pending before a Bench dies or is adjudged insolvent or, in the case of a company, being wound up, the proceeding shall not abate and may be continued by or against the executor, administrator or other legal representative of the parties or by or against the assignee, receiver or liquidator, as the case may be. (2) In the case of death of a party during the pendency of the proceedings before the Tribunal, the legal representative of the deceased party may apply within ninety days of the date of such death for being brought on record. (3) Where no petition or application is received from the legal representatives within the period specified in sub-rule (2), the proceedings shall abate: Provided that for good and sufficient reasons shown, the Tribunal may allow substitution of the legal representatives of the deceased at any time before disposing the petition on merits. 12. Referring the above rule, it was submitted that only after the NCLT Rules came into force and executor or administrator was permitted to file an application for substitution in place of a deceased party and the law that as it stood at the time of filing both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being sought from the Testamentary Court. 17. The Learned Counsel for the Applicant submitted that in respect of certain other movables being motor vehicles which were also claimed to have been bequeathed by way of an oral gift to Dr. MAM Ramaswamy Chettiary Trust and subsequently on the Charitable Trust, the jurisdiction of the Hon'ble High Court of Madras under Article 226 of the Constitution of India was invoked in Writ Petition No. 11045 of 2017 seeking a direction against the Regional Transport Officer, Chennai to transfer ownership to the Charitable Trust. It was submitted by order dated 13.07.2018, it was held that the case of transfer in favour of public trust is a disputed fact and the same cannot be decided in the writ petition. 18. The Learned Counsel for the Applicant submitted that an elaborate charade of a Trust Deed dated 09.02.2015 setting up a public charitable trust, followed by a Trust Deed dated 16.02.2015 setting up a private trust followed by an alleged will dated 18.02.2015 all of which was Dr. MAM Ramswamy's properties in a private trust to devolve on the public charitable trust by operation of the Will/clauses in the Trust Deeds cast more t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these litigation inter-se parties are germane for consideration of the application for substitution. FINDINGS OF THIS TRIBUNAL 21. We have heard the submissions made by the Learned Senior Counsel for both the parties and perused the records. At this juncture, we are only adjudicating on the issue as to whether (1) Dr. MAM Ramaswamy Chettiar of Chettinad Charitable Trust or (2) Mr. MAMR Muthiah, the adopted son of Dr. MAM Ramaswamy Chettiar is required to be impleaded in TCP/1/2016 in the place of the Petitioner viz. Dr. MAM Ramaswamy Chettiar. 22. It is not in doubt that Dr. MAM Ramaswamy during his lifetime, made a Deed of Declaration of Trust dated 09.02.2015 which is registered as Doc. No. 51/2015 in the office of the SRO Mylapore constituting a Trust under the name and style of Dr. MAM Ramaswamy Chettiar of Chettinad Charitable Trust and the recitals made in the said Trust deed are as follows; Clause 7. Properties of the Trust: The properties of the Trust shall be (a) The sum of Rs. 1,000/- which has been settled by the Settlor in favour of the Trust under this Trust Deed today; (b) Any other moveable and immoveable pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ildren shall not perform any of the obsequies or ceremonies relating to my death or be, in any manner, associated with the same or be part of the same. 9. I hereby bequeath the entirety of properties movables and immovables, rights, claims and interest to any property belonging to me as on the date of my death to and in favour of Dr. M.A.M. Ramaswamy Chettiar of Chettinad Charitable Trust which has been created by me on 09.02.2015, vide registered Trust Deed in Document Number 51 of 2015 on the file of Sub Registrar. Mylapore. 24. Schedule 1-B to the Will and Testament dated 18.02.2015 as Doc. No. 16/2015 states as follows; All my fixed deposits and Loans and Advances lying with Banks and in companies as on the date of death. 25. Further, it is also seen that on 06.04.2015, in the 1st meeting of the Board of Trustees of Dr. MAM Ramaswamy Chettiar of Chettinad Charitable Trust which was held in the presence of Dr. MAM Ramaswamy, the Trust has accepted all the movable assets of Dr. MAM Ramaswamy to the Trust. Oral gift was part of birthday gift on 30.09.2015, which was accepted by the Trust as recorded in the minutes dated 06.11.2015. 26. The contention raise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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