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The Code Of Civil Procedure (Amendment) Act, 2002
The Tamil Nadu Legislative Council (Abolition) Act, 1986.

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Madras High Court
P.Balakrishnan vs Pachaiyappa'S Trust Board on 30 January, 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.01.2013

CORAM

THE HON'BLE MR.JUSTICE S.RAJESWARAN

Civil Suit No.993 of 2001

1.P.Balakrishnan

2.P.Dhanagopal

3.P.Elumalai

4.M.P.Thirugnanam

5.K.Loganathan .. Plaintiffs

Vs.

1.Pachaiyappa's Trust Board,

Rep. by its President

Office at Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

2.R.Ganesan

Trustee  President,

Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

3.Nanjil Kennady,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

4.P.M.Anbumani,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

5.V.Sukumar Babu,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

6.R.Prabhakaran

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

7.Dr.R.Thandavan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

8.P.V.Kalyanasundaram,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

9.M.K.Mohan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

10.S.Seran,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

11.Advocate General,

High Court,

Chennai  600 104.

12.Administrator General and Official Trustee,

High Court, Chennai  600 104.

13.Isari K.Ganesh,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

14.A.Vetriazhagan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

15.C.Saravanan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

16.Dr.M.K.Loganathan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

17.G.Sivasubramaniam,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

18.M.Padmanabhan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030. .. Defendants

(12th defendant impleaded as per order

dated 29.06.2007 in A.No.4307/2007)

(Defendants 12 to 18 impleaded as per order

dated 17.11.2009 in A.No.5585/2009)

Prayer: This suit has been filed a) to frame a Scheme in respect of Govindu Naicker Trust by bifurcating the Trust "Govindu Naicker Trust" from the Management of Pachaiyappa's Trust; b) to appoint five or more Trustees which includes from among the members of Testator Vanniya Community; c) to issue a direction directing that the Management of Govindu Naicker Trust and its properties which includes movables and immovables and handed over or vested with the Trustees so appointed in the Scheme; d) to direct the defendants herein to deliver possession of the properties along with records of Govindu Naicker Trust to the Trustees appointed by this Hon'ble Court; e) to direct the defendants to furnish a true and proper accounts to the Govindu Naicker Trust from the period from 1990 till the handing over of the Management of the suit Trust and possession of the properties of the Trust to the Trustees appointed by this Hon'ble Court; f) to direct the defendants to reimburse the monies of the suit Trust diverted unauthorisedly to Pachaiyappa's Trust and other Trust under its control and; g) to make such other provisions under the Scheme as may be required for the proper administration of the suit Trust and its properties.

For plaintiffs : Mr.T.R.Rajagopalan

Senior Counsel

for Mr.M.K.Sampath

For defendants D1 to D10 : Mr.S.V.Jayaraman

Senior Counsel

Mr.S.Sadasivan

D11 : Special Government Pleader (CS)

D13 to D18 : Mr.M.Devendran

JUDGMENT

This suit has been filed by the plaintiffs under Order VII Rule 1 and Section 92 CPC, for the following reliefs:

a)To frame a Scheme in respect of Govindu Naicker Trust by bifurcating the Trust "Govindu Naicker Trust" from the Management of Pachaiyappa's Trust;

b)To appoint five or more Trustees which includes from among the members of Testator's Vanniya Community;

c)To issue a direction directing that the Management of Govindu Naicker Trust and its properties which includes movables and immovables be handed over or vested with the Trustees so appointed in the Scheme;

d)To direct the defendants herein to deliver possession of the properties along with records of Govindu Naicker Trust to the Trustees appointed by this Hon'ble Court;

e)To direct the defendants to furnish a true and proper accounts to the Govindu Naicker Trust from the period from 1990 till the handing over of the Management of the suit Trust and possession of the properties of the Trust to the Trustees appointed by this Hon'ble Court; f)To direct the defendants to reimburse the monies of the suit Trust diverted unauthorisedly to Pachaiyappa's Trust and other Trust under its control and;

g)To make such other provisions under the Scheme as may be required for the proper administration of the suit Trust and its properties.

2.The necessary facts for the purpose of disposing off the suit as culled out from the plaint are as follows:

The plaintiffs 1 to 3 are the sons of late Ponnuswamy Naicker and Tmt.Pattammal who are the defendants of late Govindu Naicker. Late Govindu Naicker executed a Will dated 25.03.1846, bequeathing major portions of his estate for religious, charitable and Education purposes called "Govindu Naicker Trust". Tmt.Pattammal, the descendant received monthly pension from the said Trust till her death in the year 1984. The plaintiffs 1 to 3 herein are the sons of the above said Tmt.Pattammal. The fourth plaintiff is a journalist and a social worker and the fifth plaintiff is a practicing lawyer and an old student of Pachaiyappa's College and C.Kandasamy Naidu College. The fifth plaintiff along with others filed a writ petition in W.P.No.1192 of 1984 questioning taking over the management of Pachaiyappa's Trust by the State Government Committee and as such, he was also one of the persons considered to be a person interested in the Trust. The fourth and fifth plaintiffs are the close relatives of the plaintiffs 1 to 3 herein.

3.In the Will dated 25.03.1846, Govindu Naicker made the Board of Trustees of the Pachaiyappa's Trust Board as the Trustees of Govindu Naicker Trust. In the Will, he made it very clear that, after his death, all the trustees who are administering the Pachaiyappa's Trust should take charge of all his properties and administer his Trust for the purpose of educational purposes as emphasised in the Pachaiyappa's Trust Decree and for other purposes according to his Will. The late Govindu Naicker bequeathed all his properties for carrying out the objects viz.,

1.to promote education and educational purposes;

2.to grant pension to his descendants and

3.to do religious charities.

After the demise of Govindu Naicker in the year 1846, the Trustees of the Pachaiyappa's Trust took over all the movable and immovable properties and started administering the Trust.

4.According to the plaintiffs, in some of the properties of the late Govindu Naicker, third parties trespassed into and no action has been taken so for by the Trustees to get back the properties. This is due to the fact that there was no proper and effective supervision and administration of the properties. The properties situated in Kancheepuram and Chennai were trespassed long time back and the Trustees have been inactive and they have not taken any action, that means, they are acting against the interest of the Trust. Attempts were made to sell the available properties at Kancheepuram by the Trustees and the Pachaiyappa's Trust Board for their personal gain. This has happened in the year 1979-80 and this was also stalled due to the intervention of the 4th plaintiff. The movable properties of Govindu Naicker Trust were completely misused and as on date nothing was available to ascertain the position of the movable properties of the Trust. The main administration and mismanagement of the said Trust (Pachaiyappa's Trust) and its properties were taken note of by the State of Tamil Nadu and having satisfied itself that there were irregularities in the management, the Sate of Tamily Nadu Government passed the Pachaiyappa's Trust (taking over of management) Act, 1981 (Tamil Nadu Act 11 of 1981). Under the said Act, the management of the Pachaiyappa's Trust was taken over by the State Government and vested in a Committee of Management consisting of five members comprising of Government officers, with effect form 22.12.1980. All the properties belonging to the Trust were taken over by the State Government under the said act. When a suit was filed in C.S.No.242 of 1986, one of the findings of the Hon'ble High Court was that, the said Act was intended to take over the management of Pachaiyappa's Trust and its properties run by it and not meant for taking over of management of other Trusts and its properties and therefore, the said Act was applicable to take over of the management of the Pachaiyappa's Trust and its properties only. Pursuant to the said findings of this Hon'ble Court, in O.S.A.No.123 of 1987 and O.S.A.No.126 of 1987, the State Government amended the said Act by including all the other Trusts and its properties in the above said taking over of the Management Act as Pachaiyappa's Trust and other Public Trusts and Endowments (Taking over of Management Act, 1981). In the said Act, it was declared that Govindu Naicker Trust is a separate and independent Trust from that of the Pachaiyappa's Trust and shown in the schedule of the said Act separately as Govindu Naicker Trust. According to the plaintiffs, the income of the Govindu Naicker Trust was being fully diverted illegally for the benefit of the Pachaiyappa's Trust and other Trusts run by the Pachaiyappa's Trust. Ever since the inception of taking over of the Management of the Govindu Naicker Trust by the Management of the Pachaiyappa's Trust, no charities as per his Will were performed by the management of the Pachaiyappa's Trust in order to perpetuate the memory of late Govindu Naicker. The Pachaiypapas Trust is running only a small basic school without any improvement. The total number of students of the said school in the year 1990 was 198 and it came down to 46 in the year 1999-2000. The said school was conducting classes for the standards 6, 7 and 8 so as to feed the Pachaiyappa's Higher Secondary School of Pachaiyappa's Trust run in the same premises having classes 9, 10, 11 and 12. The plaintiffs pointed out that the school where the Justice Rajamannar and Justice B.Raju had once studied is totally being neglected by the Trustees as well as by the Government Committee members and as a result, this school is on the verge of closure. Most of the classrooms in the school were converted to commercial portions and then let out on the monthly lease by the Pachaiyappa's Trust for commercial purposes.

5.Even the religious charities performed by the testator himself i.e., to perform Harikeerthana Kattalai to Perumal temple at Chennai, monthly salary to Bhagavadas who performed the said Keerthanas for the said temple in the tamil month of Puratasi to perform kattalais for Vishnu temple at Kancheepuram and Sri Devaraj Perumal Temple at kancheepuram and other festivals related to the said temple, to perform Kattalais at Poonamallee temple and festivals, Bajanakoodams at Mint Street, Chennai are not being conducted and the trustees have stopped these activities. The total income derived from the Govindu Naicker Trust though amounting to Rs.35 to 40 lakhs per annum, the trustees never took any interest in developing the Trust by initiating any action to carry out the object of the founder. However, the entire income of the said Trust was being illegally diverted by the management of the Pachaiyappa's Trust for the benefit of the Pachaiyappa's Trust and the other Trusts run by it. As on date, several crores of rupees were thus diverted illegally from the Govindu Naicker Trust. The trustees are committing breach of trust by siphoning of the funds of the suit Trust to the other Trusts and treated the income of the said Trust as that of the Pachaiyappa's Trust.

6.The plaintiffs stated that only after issuing the notice dated 05.03.2001, questioning the above non-preparation and non-publication of the annual income and expenditure statements and balance sheet of Govindu Naicker Trust, the management of Pachaiyappa's Trust took steps to prepare the same and then published the same for the period 1990-1991 to 1999-2000 on the Commemoration Day of Pachaiyappa Mudaliar held on 28.09.2001. All expenses for the Commemoration Day of Pachaiyappa's Trust were met from the funds of the said Trust.

7.There were severe violations with regard to the misusing of funds of the said Trust as could be seen in the statement of accounts prepared by the management of the Pachaiyappa's Trust. The property and the entire income of the Govindu Naicker Trust i.e., No.23, Jehangir Street, Chennai  1 was shown as if it was the property of Pachaiyappa's Trust and funds were diverted for the benefit of the Pachaiyappa's Trust and other Trusts under its control. Two different values of the properties are shown in two different accounts. The major portion of the income of the suit Trust was swindled in the name of the administration expenses of the said Trust by the management of the Pachaiyappa's Trust, especially when there was no institution and charity function under the suit Trust. In the absence of any balance sheet prepared for the administrative charges amount, no one will know about the funds position in the said account and how it is used. Each year the amount shown in the general fund and in the Receipt and Payment accounts of the suit Trust are not reflecting the true position. In the name of contribution to other Trusts, substantial sums of money is diverted without any legal basis and some of the funds of the suit Trust were diverted in the name of Allied Charities Account. However, no audited statement was prepared and published in the name of Allied Charities Account. The loan amount of other Trusts and the suit Trust were not properly shown in the accounts and the amounts which were lent and received were also not correctly reflected in the respective accounts. In the statement of accounts relating to Govindu Naicker Trust, in one place, it is shown as Loan from other Trusts and in another place it was shown as loan to other Trusts. Large amounts were taken away in the name of administrative charges in two different accounts of Govindu Naicker Trust. One in the name of Estate Account and another in the name of Multi-storied building account called the Pachaiyappa's Trust Multi-storied Building Account, which deals with the property of the suit Trust at No.23, Jehangir Street, Second Line Beach, Chennai-1.

8.According to the plaintiffs, the statement of accounts relating to Govindu Naicker Trust with effect from 1990-1991 to 1999-2000 would prove that the Trust's funds were misused and mismanaged for the ulterior purpose by the management of Pachaiyappa's Trust. In spite of this Court's clear finding in the matter of Pachaiyappa's Trust Lee Chengalvaraya Naciker Trust case in O.S.A.Nos.123 and 126 of 1987 filed against the management of the Pachaiyappa's Trust that against the unauthorised diversion of funds from one trust to another trust and claiming of adverse interest against the said trust by the management of Pachaiyappa's Trust are clear violations and breach of trust. The Pachaiyappa's Trust has so far diverted the funds of Govindu Naicker Trust running into several crores of rupees. The said Trust is treated as Finance Company to promote the interest of Pachaiyappa's Trust and other Trusts. Only the objects of the Pachaiyappa's Trust are being advanced by the management by overlooking the objects of Govindu Naicker Trust. When administration charges are being collected from the said Trust by the management of the Pachaiyappa's Trust for managing the affairs of the said Trust, no prejudice would be caused to the management of the Pachaiyappa's Trust, if the suit Trust is independently and separately managed by the independent trustees exclusively appointed for this Trust. As Pachaiyappa's Trust and the suit Trust are separate and distinctive entities, there can be no difficulty by managing the affairs of the suit Trust by a different body of individuals. Therefore, the plaintiffs prayed for framing of a scheme in respect of the suit Trust by appointing fresh Trustees with majority from among the members of Vanniyar Community and bifurcate the Trust and its properties from the management of Pachaiyappa's Trust.

9.According to the plaintiffs, the income from the estate of Govindu Naicker was increasing multi-fold for the past two decades. At present, the annual income from the estate is over Rs.35 lakhs. Even though the income from the estate is over Rs.35 lakhs, the management is spending only Rs.10,000/- per annum or even less towards the institutions and charities established by the Trust. Almost 99.9% of the income from the suit Trust is being diverted to institutions run by the Pachaiyappa's Trust and the other Trusts in the city of Chennai and in the State of Tamil Nadu as a whole. The institutions established by the suit Trust have neither been provided with sufficient funds nor they have utilized the income for meeting their expenses. On the other hand, the institutions run by the Pachaiyappa's Trust and the other Trusts have been using the income from the estate of the suit Trust for advancing the cause of meeting those institutions. If this trend is allowed to continue, the main object with which the late Govindu Naicker dedicated his properties would be defeated.

10.The management of the Pachaiyappa's Trust in order to divert large amounts from the Govindu Naicker Trust in the name of administrative charges created conveniently two separate accounts, one in the name of Pachaiyappa's Trust Multi-storied Building Account and another in the name of Govindu Naicker Estate Account and then diverted the amounts from both the accounts.

11.The plaintiffs point out that a lot of illegalities from the audited statement of accounts and contend that the management of Pachaiyappa Trust has been acting adversely to the interest of the suit Trust. Based on the income of the Pachiyappas Estate, Pachaiyappa's Trust started institutions in the name of Pachiyappa Mudaliar. At present, the Pachaiyappa's Trust has been running three Colleges, four Higher Secondary Schools and one Primary School from the funds of Pachaiyappa's Estate. As per the audited statement of Pachaiyappa's Estate, the income of the said Estate is shown around Rs.1,30,000/- per year. But, a perusal of the statements published by the management of Pachaiyappa's Trust would show that the Pachaiyappa's Trust was contributing more than a Crore of Rupees per year towards management contribution for running the above institution in the name of Pachaiyappa Mudaliar. Unless the Pachaiyappa's Trust siphons off the funds of Govindu Naicker Trust and other Trust under its control, the management cannot afford to meet the requirements of its institutions. The suit Trust having income around Rs.30 to 40 lakhs per annum, is not running even a single institution similar to the institutions run by the Pachaiyappa's Trust.

12.The plaintiffs contend that when comparing the annual income of Govindu Naicker Estate and the Pachaiyappa's Estate, the suit Trust could run more institutions and charities than the institutions and charities run in the name of Pachaiyappa Mudaliar. But, only one School is run by the suit Trust i.e., Govindu Naicker Secondary School, is being run as basic school having classes 6, 7 and 8th Standards with a strength of 42 students as on 1998-99. Thus, according to the plaintiffs, the management of Pachaiyappa Trust have been all along acting adverse to the interest of the suit Trust and therefore, they cannot continue as trustees of the suit Trust and they are liable to be removed from the management and fresh trustees should be appointed for the suit Trust.

13.In so far as the property of the suit Trust at No.23, Jehangir Street, Second Line Beach, Chennai  1 is concerned, it was claimed by the management as Golden Maligai Multi-Storied Building of Pachaiyappa's Trust instead of publishing it as Golden Maligai Multi-Storied Building of Govindu Naicker Trust. The said Multistoried Building was constructed in the year 1988 on the loan obtained from Indian Bank. The loan was fully adjusted in the year 1998 itself. During the subsistence of the loan itself, there was a surplus of income over the expectation. In spite of that, the suit Trust has been shown as a debtor to the extent of over Rs.14,00,000/- every year in the Trust's Audit Report. The same defect is being continued even today and still maintained unaltered by the present management. There are several such accounting lapses on the part of the management. Similarly, the management has not so far taken any steps to recover the amounts lent to the other institutions managed by the Pachaiyappa's Trust. The monies are lent without any security and they are diverted without any legal sanction. Therefore, a direction is to be issued to the present Board of Trustees not to divert the funds of Govindu Naicker Trust till the disposal of the suit.

14.The plaintiffs are alleging that though the institutions run by the Pachaiyappa Trust like C.Kandasamy Naidu Estate are being developed from stage to stage with the funds of the suit Trust, no such steps are taken in respect of the institutions established and run by the suit Trust. This may be due to the fact that none of the members of the Testator's Vanniyar Community are in the Board of Trust. Further, not only they ignored the old institutions established by the testator, but also not taken any steps to establish new institutions, charities, etc., as per the wishes of the testator. Therefore, the suit Trust requires independent trustees who are interested in bestowing their full attention so that the institutions can be revived and the wishes of the late Govindu Naicker can be fulfilled as per the existing requirements. The objects can be achieved only by framing a separate scheme, as in the case of Pachaiyappa's Trust, by appointing a new Board of Trust which should include trustees from among the testator's Community. The plaintiffs further contend that prior to 1980, the management of Pachaiyappa Trust used to engage two separate auditors, of which, one was entrusted to audit the accounts of Pachaiyappa's Trust and its institutions and another one was entrusted to audit the accounts of the other Trusts and its institutions so as to protect the independent interest and identity of the Trust other than that of Pachaiyappa's Trust. But, at present, the management of Pachaiyappa's Trust engage only one auditor who is interested to audit the accounts of the Trusts including Pachaiyappa's Trust and its properties and its institutions for ulterior purposes.

15.With the above set of averments and allegations, the plaintiffs filed the suit for the aforesaid reliefs. A written statement was filed by the defendants 1 to 10, in which, they questioned the maintainability of the suit itself on the ground that: a)the suit is barred by the provisions of the Will and testament of Govindu Naicker dated 25.03.1846;

b)Govindu Naicker's estate is vested in Pachaiyappa's Trust;

c)there are no two trusts as contended by the palintiffs;'

d)the reliefs sought are against the wishes of Govindu Naicker as stated in his Will;

e)the suit falls outside the scope of Section 92 CPC and

f)the plaintiffs have no locus standi to maintain the suit as they are not aggrieved persons under Section 92 CPC.

16.According to the defendants, the estate of Govindu Naicker is not a separate and independent trust distinct from Pachaiyappa's Trust. As per the Will and testament of Govindu Naicker executed on 25.03.1846, the testator conveyed the properties then worth about Rs.40,000/- to the trust of Pachaiyappa's Charities to be used by the Trust, for the cause of primary education among the unfortunate little children and for religious purposes. He had the desire to see that his endowment was efficiently managed and he associated himself and served as a Clerk on a little salary under the Pachaiyappa's Trust Board. At present, the endowment was used by the Trust to award a fees scholarship in the name of Govindu Naicker at the Pachaiyappa's School, Chennai and only in the year 1865 a separate Primary School was started out of the accumulated funds. Gradually the school was raised to the status of Middle School and till this date, the school continues to be the feeder school to the Pachaiyappa's College High Secondary School which is also situated in the same building and premises.

17.The defendants deny that the plaintiffs are the members of the descendants family and they do no admit the allegation that the trust failed to pay the pension to the plaintiffs 1 to 3 herein who are the sons of the late Pattammal. The defendants admit that one Tmt.Pattammal had been given a monthly pension @ R.15/- per month till her death i.e., December 1993. Thereafter, no one came forward to claim the pension in succession. One Thiru T.Manicka Naicker made a representation that he was a recipient of the monthly pension and requested for sanction of monthly pension to him. His representation was made before the Administer General and Official Trustee at that time. The A.G.O.T. sanctioned a sum of Rs.150/- per month to T.Manicka Naicker from 17.09.1990. These defendants who represent the duly constituted Board of Trustees, as per the new scheme framed by this Court with effect from 29.09.2000 who took over the management and considered a fresh representation made by the Manicka Naicker and decided to enhance the monthly pension from Rs.150/- to Rs.750/- per month effective from 12.11.2001. He was also sanctioned with a sum of Rs.3,000/- and the same was paid to him as one time lumpsum exgratia for the year 2001. According to the defendants, the intention of the testator has not taken the upliftment of the members and the Vanniyar Community only. The endowment is intended to benefit the public at large without any particular reference to community or caste. The suit has been filed with a malafide intention to ventilate the private or personal grievances of the plaintiffs. The present Pachaiyappa's Trust Board i.e., the defendants 1 to 10 are the newly elected Board of Trustees who had taken over the administration of the trust from the A.G.O.T. on 29.09.2000 only. Even three years period has not been completed. Further, as per the Will, the intention of the testator is to administer his own endowment/estate directly by the Pachaiyappa's Trust Board and he being associated with the functioning of the Trust. As per the provisions of the Will, Pachiayppas Trust conducts the following activities:

1.To promote education by running Govindu Naicker Secondary School and other Schools and Colleges at Chennai and other places;

2.Award pension to the legal heir Tmt.T.Meenambal @Rs.750/- per month;

3.Perform religious activities at Govindu Naicker Bhajana Kudam at Mint Street, Chennai and in other Hindu temples.

18.The defendants submit that at present Govindu Naicker Bhajana Kudam was under the supervision of Dr.V.K.Jayalakshmi and under her supervision, daily poojas and bhajans are performed every day. Special poojas are performed on Vaikunta Ekadesi and third Saturdays of the month. For this purpose, the Trust supervisor employed two songsters, one archaga, one mirudangam player and one sweeper. During Margahzhi month, daily poojas and bhajans are being conducted in Bhajans Kudam in the early mornings. The monthly expenses incurred by the Trust supervisor for these poojas are being met by the Trust. Thus, Pachaiyappa's Trust performs the religious and educational activities of Govindu Naicker Estate.

19.The defendants state that as per the provisions of the Will, the administration of the Endowment/Estate of Govindu Naicker came into the possession of the Pachaiyappa's Trust even before his death and during his lifetime itself. There is no truth in the allegation that the properties in Kancheepuram and Chennai were trespassed. There is no trust in the allegation that no proper and effective supervision of the estate and its properties. The present Board of Trustees took over the management after a gap of twenty years, during which period, there is no elected Board of Trustees and the Trust was administered by the Government Officials from 22.12.1980 to 10.10.1996. Thereafter, the administration was in the hands of the A.G.O.T. from 11.10.1998 to 29.09.2000. The elected trustees were in charge of the administration before 22.12.1980. During 1985, the then Official Committee took efforts for the construction of the Multistoried Building on the lands of Govindu Naicker Estate at No.23, Jehangir Street, Second Line Beach, Chennai-1 and laid the foundation stone by the then Education Minister on 07.04.1986. Before the construction of the said building, no income was derived as the building was in a very dilapidated condition. The old building was demolished on the notice of the Corporation due to the fact that a major part of the structure of the building collapsed during the rainy season. The management obtained prior permission from the Corporation and planning permission from CMDA for construction of a Multistoried building and for this purpose, obtained a loan of Rs.64,00,000/- from the Indian Bank. The entire loan was fully paid by adjusting the rents from the building and the new Multistoried building was named after the testator as Govindu Maligai. At present, the entire rent proceeds are being credited to the Multistoried building account, a separate account being operated by the Pachaiyappa's Trust. The present Board of Trustees are now taking efforts to increase the rent after the expiry of the lease period.

20.After negotiations with the higher officials of the bank, who is the lessee, it was agreed to pay a revised rent with effect from 01.08.1988 subject to the obtaining Board's approval. This property has now been audited as an asset to Govindu Naicker Estate worth about more than one Crore and thus, the defendants have improved and increased the worth of the property and it income.

21.The defendants deny the allegation that third parties have trespassed with the trust properties and no action has been taken so far. This is a very vague and baseless allegation. They also deny that attempts were made to sell the property at Kancheepuram for their personal gain. It is stated that no property of Govindu Naicker Estate is sold to any body in part or in full or any attempt is being made to sell any property. Further, as per the Will of the testator, the discretion had been given to the Board of Trustees to sell the properties of the testator, excepting the ground at Kancheepuram.

22.The defendants further state that the testator has given full discretion to the Board of Trustees even to appoint the trustees of their own if they are willing to administer the estate as per the provisions of the Will. Therefore, the defendants reiterate that Govindu Naicker Estate is not a separate and independent trust fro that of the Pachaiyappa's Trust.

23.According to the defendants, the courts including the Supreme Court of India have not taken any decision with regard to the election and counter election of the said Trust which is a separate Trust or anything as claimed by the plaintiffs. It is denied that the income of the suit Trust was being diverted illegally for the benefit of the Pachaiyappa's Trust and other Trust. It is also denied that the Govindu Naicker School remains a basic school without any improvement. It is also denied that the classrooms were converted into commercial portions and then let out on monthly lease for commercial purposes, thereby collecting huge amounts from the traders and businessmen.

24.The defendants state that after taking charge of the administration of the Pachaiyappa's Trust on 29.09.2000, i.e., during the financial year 2000-2001, the trust board reviewed the complete position of the audit and accoutns of the Pachaiyappa's Trust and the other Charities under its management. They learnt that only in respect of accounts of the Estate controlled by the auditors appointed by the High Court for the Pachaiyappa's trust were audited upto 1999-2000, but, there was a backlog with regard to the audited accounts pertaining to evening colleges and self-finance courses of the trust institutions from the year 1993-1994 onwards. Therefore, the defendants took steps by calling the auditors of the Trust Colleges and got the audit work completed upto 1999-2000 and accounts were published on 28.09.2001 on the Commemoration Day function. It is further pointed out that the last Commemoration Day was held on 23.01.1991 during the regime of the Official Committee and the accounts for the year 1989-1990 was published. These defendants took steps for compilation and publishing of accounts for 10 years period from 1990-1991 to 1999-2000 within one year of their term. The Commemoration Day was conducted by incurring a total expenditure of Rs.1,70,000/- which includes printing charges and also the capital expenditure in providing new plants and gardens around Pachaiyappa's Statute and all these expenses were met from Pachaiyappa's Estate only.

25.It is further stated in the written statement that, while celebrating the Commemoration Day, both vegetarian and non-vegetarian foods were supplied to satisfy the request of the teaching and non-teaching staff in appreciation of the hard work and services rendered by one and all in bringing the accounts for the ten years period up-to-date. In fact, the Dinner was sponsored by Indian Overseas Bank, Aminjikarai as a token of good-will. As per Clause 4 of the new scheme framed by the management of the Pachaiyappa's Charities, the audited statement of accounts for ten years were duly sent to the Administrator General of Madras and copies were also given to all the Colleges of the Trust with instructions to keep them in the library for the reference of the public. Hence, the allegation that the annual reports were not sent to the Administrator General is not correct.

30.In so far as the allegation with regard to the misusing of funds of the Trust, the same is devoid of any merit. They further denied that the major portion of income of the suit Trust was swindled in the name of the administration of the suit Trust by the management of Pachaiyappa's Trust especially where there was no institution on charity functioning under the suit Trust. The erstwhile official committee of the management in their Resolution No.1643 dated 10.12.1991 inserted items of administrative expenditure to be booked under the Pachaiyappa's Trust administrative charges account which is being followed scrupulously for all these years. Thereafter, separate account was opened for this purpose in the name of Pachaiyappa's Trust administration charges account and the amounts which were taken as administrative charges were pooled in this connection for meeting expenditure.

31.The reason behind the booking of administration charges is that the funds of Pachaiyappa's Trust are used for the affairs of the various educational institutions under its control in addition to administering various estates and endowments including the estate of Govindu Naicker. The staff in the Trust Office were appointed not on the State basis but on the basis of over all workload in the trust office, etc. Similarly, expenditure on stationary, telephones, postages, etc., which are booked under the heads of account maintained for Pachaiyappa's Charities and not booked directly to various estates and educational institutions. The cost of the staff employed in the office of the Pachaiyappa's Trust is also booked under Pachaiyappa's Charities, but, apportioned on rational basis from the income of all the estates as administrative overheads. Thus, the apportionment as a percentage of share towards the administrative charges were worked out by the auditors for each year and this procedure has been consistently followed even for the period prior to 1980 during the administration of the Trust by the erstwhile Board of Trustees to fulfill the objects of the Wills of the testator. Thus the allocation and absorption of not only the administrative charges from the income of the various estates has been correctly done and it would not amount to illegal diversion of funds from one estate to another. These defendants further submit that the incurring of administrative charges is for the services rendered and for the management of the properties of estate and the educational institutions and there is no illegal diversion of funds from one estate to another. They are the legitimate charges for administering the estates and without incurring that expenditure, the estates and the Trusts cannot be administered. This Court has already gone into such procedure and passed orders confirming the procedure on 21.08.1975 in A.No.498 of 1975 in O.P.M.109/1942 in V.T.Chetty Estate. During the administration of the Trust by the Administrator General and Official Trustee, as a measure of abundant caution, he moved A.No.3498/1997 before this Court as per the procedure explained above. The accounts of each year for each estate including the allocation of administrative charges, have been duly audited by the auditors appointed by this Court as provided for in the New Scheme for the management of Pachaiyappa's Charities and the receipts and payments in respect of all the accounts duly operated by the Trust with new identity of each estate's accounts have been duly audited by the independent and chartered Administrators for each year. It is not correct to state that no audited statements was prepared and published in the names of Allied Charities Accounts. Every estate has got individual identity and accounts are maintained separately and got audited.

32.The defendants further state that incurring of administrative charges from Govindu Naicker estate was not made ignoring the fact that the loan obtained for the construction of the multistorey building was outstanding. Only after providing for clearing the entire loan with interest by 1998, the trust allocated the administrative charges. Hence, it is not correct to say that the Trust is treating the suit Trust as a finance company.

33.If the suit Trust is independently and separately managed by independent trustees exclusively appointed for the suit trust, it would be against the original intention of the testator and it would defeat the object of the Will. The testator himself in his will has stated that even if the trustees of the Pachaiyappa's Trust are unwilling to act as trustees, it is only for them to nominate and appoint any other person to be a Trustee for the purpose of managing the trust. Since the trustees of the Pachaiyappa's Trust are willing to continue to act as trustees of the suit trust, the prayer sought for by the plaintiffs in this paint in this regard could not be granted.

34.The Pachaiyappa's Trust is above caste or creed and no where in his Will, the testator claims that he belongs to any particular community or the benefit should go to certain community. With these averments contained in the written statement, the defendants 1 to 10 sought for the dismissal of the suit.

35.The defendants 13 to 18 are impleaded as per the order in A.No.5585/2009 on 17.11.2009, and they filed a separate written statement which was signed by the 13th defendant. In the written statement filed by the 13th defendant, it is stated that he is not admitting the allegations contained in para 8 that the plaintiffs are the descendants of the testator Govindu Naicker and the plaintiffs are to prove the alleged descendency and also to confirm that they are the beneficiaries.

36.Further, the intention of the testator Govindu Naicker is only for the better education to the poor Hindu Children and no where in the Will of the testator, the name of the Vanniyar Community was mentioned. Pachaiyappa's Trust started Primary School in the year 1865 and gradually the said school was raised to the status of Middle School and it continues to be the feeder school with classes 5 to 8 to the Pachaiyappa's Charities Higher Secondary school, in which 9th Standard to Higher Secondary Classes are being conducted. For nearly 140 years, imparting of education to children in the name of Govindu Naicker School which is being run at the building belonging to the defendant's Trust in NSC Bose Road, Chennai. He further states that defendant's Trust is duly performing the religious charities viz., daily poojas and bhajans and bajanikoodam, special poojas on Vaikuntha Ekadesi and other religious charities as mentioned in the Will of the testator. As per the Will of the testator, the entire estate of Govindu Naicker came into the possession of the defendant's Trust even during the testator's lifetime itself and the testator himself was performing certain charities and obligations. Therefore, it cannot be said that the estates of Govindu Naicker is a separate entity of the trust and he has not clubbed it with the Pachaiyappa's Trust. The very recitals of will show that the entire estates of Govindu Naicker shall be administered only by the trustees of Pachaiyappa's Trust with full discretion regarding the management of properties of the estates of Govindu Naicker. Full discretion has been given to the Board of Trustees of Pachaiyappa's Trust even to appoint the trustees and therefore, the Govindu Naicker estate is not a separate and independent trust from that of the Pachaiyappa's Trust. The estates had been merged with the Pachaiyappa's Trust and the same is being managed and administered as per the scheme of the Pachaiyappa's Trust.

37.The thirteenth defendant points out that like the estate of Govindu Naicker, several other estates numbering about 25 also vested with the Pachaiyappa's Trust by several philanthropists. The 13th defendant denied that the board of trustees of the Pachaiyappa's Trust attempted to sell the property at Kancheepuram to a third party but submits that all the properties of the estate of Govindu Naicker are well in possession of the Pachaiyappa's Trust. Diversion of funds as alleged in the plaint was denied by the 13th defendant by contending that the said allegation is nothing sort of casting aspersions on the Pachaiyappa's Trust which has been administering the estates of Govindu Naicker for nearly 140 years.

38.In paragraph No.10 of the written statement filed by the 13th defendant, the following facts were stated by him:

a)On 22.12.2000, the Government of Tamil Nadu promulgated an ordinance No.14/1980 and took over the administration of the Pachaiyappa's Trust which was later on replaced by the Tamil Nadu Act No.11 of 1981. The said taking over of the management of Pachaiyappa's Trust was challenged in W.P.No.1192/1984 to declare that Act No.11 of 1981 is null and void. On 06.11.1987, W.P.No.1192/1984 was allowed, holding that the Act suffers from want of legislative competence. While disposing off the said writ petition, this Court directed the committee of Management i.e., the Government officials to hand over the administration of Pachaiyappa's Trust to the Official Trustee till the election for the Board of Trustees is being conducted. Government filed a writ appeal in W.A.No.1996/1987 and the Division Bench of this Court dismissed the said writ appeal with a direction to the Goivernment to hand over the management of the Pachaiyappa's Trust to the Official Trustee. Government of Tamil Nadu filed S.L.P.No.11607/1987 which was numbered as Civil Appeal No.34287/1988. A Constitution Bench which heard the Civil Appeal, dismissed the same and confirmed the order of the Division Bench dated 11.07.1996. Thereafter the administration of Pachaiyappa's Trust was entrusted to the Administrator General and Official Trustee and under the orders of this Court, an Election Committee has been constituted and elections were conducted as per the schemes of the Pachaiyappa's Trust. Nine Trustees were elected and assumed charge with effect from 29.09.2000. After taking charge by the newly elected trustees viz., the defendants 2 to 10 herein, the entire administration of Pachaiyappa's Trust was being administered as per the scheme of the Pachaiyappa's Trust by the newly elected trustees/defendants 2 to 10. b)Within a period of six months from taking charge of the administration of the Pachaiyappa's Trust, the plaintiffs caused a legal notice dated 05.03.2001 to the defendants 2 to 10 by putting forth all sorts of allegations against the defendants 2 to 10. Thereafter, the present suit has been filed by the plaintiffs under Section 92 CPC stating that the plaintiffs are the descendants of the testator. c)The thirteenth defendant further states that when the tenure of the trusteeship of the defendants 2 to 10 was coming to an end, under the orders of this Court in A.Nos.2375 and 3358 of 2005 dated 17.09.2005, once again the entire administration of Pachaiyappa's Trust was ordered to be handed over to the A.G.&O.T. till the election for the Board of Trustees are conducted. Since the administration of Pachaiyappa's Trust together with several estates including the estate of Govindu Naicker were being managed by the AG&OT. The scheme of Pachaiyappa's Trust was amended by this Court in A.No.4224/2005, 4884 to 4847 of 2006 and 4780/2006 dated 04.01.2007, in respect of certain clauses, regarding the eligibility for becoming a trustee who possess a building, assessed to Corporation on property tax at Rs.1,000/- per year which was raised to Rs.10,000/- per annum. The said amendment relating to directing that the management of Govindu Naicker Trust and its properties to be handed over to the Trustees to be appointed in the Scheme and to direct the defendants to deliver possession of the properties along with the records of Govindu Naicker Trust to the trustees appointed by the Court was passed. The order made by this Court for reason that a person to become a trustee shall have a high status in the society which was subsequently confirmed by the Division Bench in O.S.A.Nos.47 and 58 of 2007 dated 24.09.2008. The AG&OT was further directed to hold elections for the Board of Trustees as per the amended scheme and on 03.03.2009 in A.Nos.900 to 904 of 2009, an order was passed by this Court constituting an Election Committee consisting of three members viz., 1) a retired High Court judge; 2) a retired District Judge and 3) The Principal of Pachaiyappa's College, Madras. Thereafter, enumeration of voters list has been updated and the Election Committee conducted the elections on 29.09.2009. Six persons were elected and thereafter this Court declared them as newly elected trustees who are defendants 13 to 18 in the suit. This Court further directed the AG&OT to hand over the entire administration to the newly elected six trustees and accordingly the six elected trustees took over charge of the administration on 09.10.2009. Therefore, the present Board of Trustee functioning under the Chairmanship of the 13th defendant."

39.Heard Mr.T.R.Rajagopalan, the learned senior counsel appearing for the plaintiffs, Mr.S.V.Jayaraman, the learned senior counsel appearing to the defendants 1 to 10, the learned Special Government Pleader (CS) for 11th defendant and the learned counsel appearing for the defendants 13 to 18. I have also gone through the documents made available on record.

40.After hearing the arguments, orders were reserved and for the purpose of certain clarifications, it was again respondent-opened on 19.12.2012.

41.On 19.12.2012, it was submitted on behalf of the defendants that an Administrator was appointed as per the orders of this Court passed on 16.12.2012 and the Administrator would hold the position till the election is conducted for the Pachaiyappa's Trust. It is further stated that as there was no quorum of trustees, the Administrator was appointed to administer the Trust till the elections are over. A copy of the order dated 16.12.2012 has been produced for my perusal. The learned Administrator General and the Official Trustee has also filed a memo on 19.12.2012 stating that he had already handed over the case papers to the elected members of the Pachaiyappa's Trust on 09.10.2009 itself and he is no longer a necessary party in the proceedings.

42.In the memo, the Administrator General and Official Trustee in his capacity as the 12th defendant stated that, the third plaintiff took out an application in A.No.5585 of 2009 to implead the new Board of Trustees of Pachaiyappa's Trust in the place of the Administrator General and Official Trustee. Application No.5585 of 2009 was allowed by this Court and consequently the new board of Trustees were impleaded as the 13th to 18th defendants, as per the amended plaint. It is pointed out in the Memo that the Pachaiyappa's Trust was being lastly administered by the Administrator General and Official Trustee of Tamil Nadu, Thiru N.Authinathan who is presently the Principal District and Sessions Judge, Coimbatore. On 06.10.2009, this Court while disposing off A.Nos.5060 and 5061 of 2009 passed a common order directing the Administrator General and Official Trustee to hand over the administration of Pachaiyappa's Trust to the six elected trustees. Accordingly, the then Administrator General and Official Trustee Thiru N.Authinathan handed over the administration of Pachaiyappa's Trust to the elected trustees on 09.10.2009 and it was taken over by the above said six elected trustees on the very same day. Necessary compliance report was also submitted to this Court on 12.03.2010 in A.Nos.900 to 904 of 2009. Therefore, the Administrator General and Official Trustee in the Memo submits that since the entire administration of the Pachaiyappa's Trust was already handed over to the six newly elected members on 09.10.2009 the Administrator General and Official Trustee prays that he as the 12th defendant may be exonerated from the above suit.

43.Now, the order passed by this Court on 16.10.2012 in A.Nos.4062, 4129, 4226, 4497 and 4498 of 2012, is as follows:

"That Mr.T.N.Seshan (the Retired I.A.S. and also the Retired Chief Election Commissioner of India) residing at No.169, St.Marys Road, Chennai-18 be and is hereby appointed as an interim Administrator;

2.That the Interim Administrator appointed herein shall take charge of the management of Pachaiyappa's Charities with immediate effect;

3.That the Interim Administrator appointed herein shall administer the Trust until a new board of trustees take charge after conducting elections for the Trust Board;

4.That the Interim Administrator appointed herein shall be paid an honorarium of Rs.75,000/- per month and the aforesaid honorarium shall be drawn from the funds of the Trust Board;

5.That the Interim Administrator appointed shall also be entitled to car allowance of Rs.25,000/- to defray the expenditure towards traveling;

6.That after assuming charge, the Interim Administrator appointed shall make necessary preparations for conducting the elections for the five vacancies in the Trust board as per class 11 of the new scheme framed for the management of the Pachaiyappa's Charities, which includes two to be elected by the Hindu members of the Senate of the University of Madras, one to be elected by the Pachaiyappa's Trust Board College Council and two to be elected from amongst the electoral college consisting of all the teachers from all the colleges of Pachaiyappa's Charities in the Pachaiyappa's Trust Board."

7.That the interim Administrator appointed herein shall take the assistance of any person he thinks proper for conducting election and shall draw funds towards the expenditure for conducting elections from the trust board.

8.That the interim Administrator appointed herein shall seek appropriate orders from the Judge dealing with Applications on the Original Side for any further diction.

9.That apart from this task, in view of the grave situation created by non filling up of posts, the interim Administrator appointed herein shall specially attend to the question of filling up the vacant posts in the Colleges run by the Trust besides his other work.

10.That serious complaints have been made regarding the large number of vacancies in the matter of teachers in various colleges run under the trust numbering more than 120, for which steps were initiated as early as in August 2009 calling for applications to fill up the post of lecturers for the six Arts and Science Colleges run by the Trust in Chennai, Kancheepuram and Cuddalore by direct recruitment and at that time, the vacancies were about 111 and presently, the vacancies have been said to be more than 121, the interim Administrator shall immediately start the process of recruitments in accordance with the guidelines issued by the University Grants Commission and subsequent notifications issued by the State Government. Since the recruitment of teachers is governed by the provisions of the Tamil Nadu Private Colleges (Regulations) Act, 1976 the process of filling up the vacancies need not wait for the completion of the election which shall likely to take some more time.

11.That until the full strength of the trustees is established by due process of law, the interim administrator shall exercise all powers vested with the trustees under the scheme including administration, financial and all personal management and in all activities of the Trust.

12.That the interim Administrator appointed herein be and is hereby empowered to hire a personal Secretary to assist him in his work and also entitled working space, personal staff and communication facilities and also draw assistance from the existing staff of the Trust as he shall deem fit as necessary.

13.That the existing trustees shall not function until full board of trustees are respondent-constituted after the elections conducted by the interim Administrator.

14.That insofar as the appointment of a Committee of Officers not below the rank of an I.A.S. Officer is not feasible for compliance hence there shall be only one interim Administrator to run the affairs of the Trust till the election is held is sufficient.

15.That the Teachers and the employees of the Pachaiyappa's Trust Board Colleges Rep. by its Secretary Dr.P.Shanthi Joint Action Committee of AUT Units of Pachaiyapp's Trust Board Colleges @ CKN College for Women the applicant in A.No.4226/2012 be and is hereby impleaded as proposed second respondent in A.No.4062/2012."

44.In the light of the above, now let me proceed to some prayers raised by the plaintiffs in their suit.

45.The suit has been filed to frame a scheme in respect of Govindu Naicker Trust by appointing five more trustees which include members from testator's vanniyar community and also to bifurcate the management of Govindu Naicker Trust and its properties from the management of the Pachaiyappa's Trust.

46.In so far as prayer Nos.C and D are concerned, it has already become infructuous, as the defendants 1 to 10 are no longer acting as trustees and in fact in their place, six elected trustees were appointed and Administrator General and Official Trustee already handed over the administration of the Pachaiyappa's Trust to the six elected members on 09.10.2009 itself. Therefore, the prayer No.D in the suit plaint needs no consideration at all.

47.Before proceeding to consider the other prayers in the suit, now let me consider the main prayer viz., framing of a scheme in respect of Govindu Naicker Trust by bifurcating the trust from the management of the Pachaiyappa's Trust and appointing five or more trustees including the members of the testator's Vanniyar Community.

48.The learned senior counsel appearing for the plaintiffs vehemently contended that as per the Will of the Govindu Naicker (Ex.P8), Govindu Naicker Trust is a separate and independent Trust from that of Pachaiyappa's Trust and as such claiming adverse interest by the defendants by saying that there is no separate and independent trust, is against the interest of the suit trust. He further submits that diverting the funds from the suit trust and untiling the same for the Pachaiyappa's Trust and other trusts other than the suit trust are being illegally usherped by the management of Pachaiyappa's Trust in the name of the administrative charges in the absence of any legal sanction. He further submits that the properties of the suit trust have been tagged on to the schedule of properties owned by the Pachaiyappa Mudaliar properties and therefore, its independent character has not been maintained. Right from taking over the management of the suit trust by the Pachaiyappa's Trust, the learned senior counsel contends that no improvement nor any development took place in so far as the suit trust is concerned. The objects of the suit trust have not been carried out by the defendants and therefore, no prejudice would be caused if the suit trust is being managed separately considering the fact that the testator himself had opted for such administration by separate trustees in his will and also taking note of the action of the management of the Pachaiyappa's Trust since they have been administering the suit trust by collecting almost about 99% of the total net income of the suit trust towards administration charges. The learned senior counsel takes strong exception to the claim of the defendants that Govindu Naicker Trust is not a separate and independent trust and the trust elected by the Govindu Naicker was merged with the Pachaiyappa's Trust. According to the learned senior counsel, the suit trust is a separate and independent trust which was entrusted to the management of the Pachaiyappa's Trust. In support of his submission, the learned senior counsel relies on the will (Ex.P8) and the evidence of PW1. Relying on Ex.P14 also, the learned senior counsel contends that the Govindu Naicker Trust is a separate trust and therefore, its identity and uniqueness is to be maintained. The learned senior counsel further submits that both the previous Trustees, i.e. the defendants D1 to D10 and the present trustees viz., the defendants 13 to 18 are unanimous is contending that the suit trust is not a separate and independent trust and therefore, they are claiming adverse interest which could not be accepted at all. In this connection, the learned senior counsel relies on Ex.P36, judgment in OSA.No.123 and 126 of 1997.

49.According to the 13th defendant, under his Chairmanship several developments and measures are being contemplated for the improvement of the income from the several estates vested with the Pachaiyappa's Trust. It was also planned to augment income from the several properties belonging to the several estates. Further, the educational institutions run by the Pachaiyappa's Trust are to be updated by starting several courses and the 13th defendant further contemplated to improve the educational institutions in respect of imparting modern and latest education.

50.The 13th defendant contends that the suit is not maintainable under Section 92 of C.P.C. as the plaintiff failed to show any prima facie case to satisfy the ingredients stipulated under Section 92 of C.P.C. Further, the prayers in the suit could not be granted as they are in total contradiction with the terms of the Will of the testator. Before concluding the statement, the 13th defendant adopts the written statement filed by the defendants 1 to 10 and states that the statement made by the defendants 1 to 10 may be treated as part and parcel of his written statement.

51.Per contra, the learned senior counsel appearing for the contesting defendants submit that the plaintiffs are not the aggrieved persons as contemplated under Section 92 and therefore, the suit itself is not maintainable. Relying on the deposition of PW1, the learned senior counsel submits that there is no material on record to substantiate the allegations made by the plaintiffs and therefore, in the absence of any specific allegation, the plaintiffs should not be allowed to make such bald and sweeping allegations. Further, the learned senior counsel relies on the deposition of PW1 again to submit that at no point of times, the properties of Govindu Naicker at Kancheepuram were attempted to be sold. In so far as Govindu Naicker Maligai is concerned, the learned senior counsel submits that there is no substance in the allegation that no improvements have been made and in fact Govindu Naicker Maligai itself is a proof for the improvement made by the defendants. Further, he submits that the religious activities are also being conducted under the supervision of Dr.V.K.Jeyavelu and Daily pujas are conducted including the special pujas on Vaikuntha Ekadesi Days. The learned senior counsel further points out that the defendants 1 to 10 started functioning as trustees of the first defendant trust only on 29.09.2000 and allegations were made relating to the purported diversion siphoning of funds from Govindu Naicker Estate for the period upto 31.03.2000 and therefore, by any stretch of imagination, the defendants 2 to 10 could be found fault with for the allegations relating to the period upto 31.03.2000.

52.The learned senior counsel further relying on the will executed by Govindu Naicker submits that no particular community was mentioned thereon and therefore, the plaintiffs could not ask for such a prayer which is not the intention of the testator. It is not open to the plaintiffs to re-write the will of the testator and this Court would only go by the recitals contained in the Will. The learned senior counsel further submits that the suit has been instituted nearly 155 years of the Will executed by the Govindu Naicker and until the defendants 2 to 10 were appointed as trustees, the plaintiffs did not make any allegations and therefore, it is obvious that the plaintiffs have not come to the Court with clean hands. Hence, the learned senior counsel submits that the suit is devoid of any merits and is liable to be dismissed.

53.The learned counsel appearing for the defendants 13 to 18 adopts the arguments made by the learned senior counsel for the defendants 2 to 10.

54.I have considered the rival submissions carefully.

55.In the light of the above factual aspects and the submissions made by the respective counsel appearing for the parties, let me first proceed to consider the main and important questions viz.

1) whether the suit trust is a separate and independent trust? or whether it is an endowment of Pachaiyappa's Trust? and

2) whether any scheme is to be framed by this Court on the basis of the allegations and the charges levelled by the plaintiffs?

56.Both the learned senior counsel appearing for the parties very much relied on the will of the testator dated 25.03.1846 which was marked as Ex.P8 to contend that the suit trust is a separate trust (by the plaintiffs) and the suit trust is not a separate trust (by the defendants). In such circumstances, Ex.P8 assumes greater significance and there is no controversy with regard to the fact that in answering this question, the recitals contained in Ex.P8 are important as they are the intention and desire of the testator.

57.The will and testament of Govindu Naicker i.e. Ex.P8 was executed on 25th day of March 1846. In this, the testator viz., Arnary Govindu Naicker was shown as one part and when Srini Pillai, L.Venkatapathy Naidu, A.Venkatachala Chettiyar, M.Soma Sundara Mudaliar, C.Arunagiri Mudaliar, D.S.Ramanujulu Naicker, T.Veerasamy Pillai and P.Rajarathina Mudaliar being the trustees for the time being of a Charitable Fund called Pachaiyappa's Charities were shown as the other part. Arnary Govindu Naicker is desirous out of his means to promote interest and well-being of fellow subjects of Hindu community by useful benefactions whereas the said Arnary Govindu Naicker considers that no other disposal of a portion of his means can he so well contribute to that end as by establishing the permanent fund for the better education of children and youths of that community. Whereas the said Arnary Govindu Naicker has confidence in the said trustees of Pachaiyappa's Charities that it will faithfully and in all future time perform the trusts of that Charity and in particular those dedicated to the purpose of education. Whereas the above said trustees are "willing to accept the Trust hereby created and in them re-posed" (emphasis supplied by me).

58.The Will i.e. Ex.P8 further shows that the said Arnary Govindu Naicker has absolutely and freely given and granted unto the said trustees all the piece and parcel of ground and building thereon erected, situated on the South Beach New Road leading to the Custom Use at Muthiyalpettah and other properties mentioned thereon including property at Conjevaram. The trustees mentioned in the Will are given the right to have and hold all those properties and they are requested to allow the said Arnary Govindu Naicker during his life time as Gumasta or the agent of the Trustees for the time being to collect rents and profits of such properties, rendering account of the same to such trustees and then to allow the said Arnary Govindu Naicker during his life to let out a sufficient sum according to the discretion and direction of the said trustees for the time being in keeping the said houses and buildings at Conjevaram which is referred by the sums provided to be set apart for such charities and religious functions at Conjevaram in good repair and then upon further trust to demand and receive from the said Arnary Govindu Naicker from time to time the balance of such rents and profits and to dispose and apply the same in manner following upon trust out of the rents and profits of the said houses and buildings to pay the sum of Rs.100/- upon the marriages and for the marriage expenses for each of the grand sons and daughters of said Arnary Govindu Naicker i.e. to say Arnary Thiruvenkatam, Arnary Perumal, S.Srinivasan, Alamelu Ammal and Ramanuja Ammal. Further, the Trust to pay the said Arnary Govindappa Naicker during his life time the monthly sum of Rs.80/- for the purpose of his family and family worship and ceremonies and after his death upon trust to pay out of such monthly sum of Rs.80/-, the monthly sum of Rs.31/- to the persons following. The Will also provides for certain ceremony usually performed in the family called Sumangali Puja and also for the purpose in and out of performance, the annual ceremonies of the deceased members of the family of the said Arnary Govindu Naicker. The Will also provides for education purposes within the town of Madras. The Will further states that the said Arnary Govindu Naicker covenants that the above trustees of the Pachaiyappa's Trust in consideration of the charitable objects declared and all the trouble and charge of the said trustees in providing for and amending the same to render to the trustees for the time being or to the Secretary half yearly or from time to time as the said trustee may deem, faithful and true account of all the expenditure and all the monthly and early sums provided to be paid to him. Further, the said trustees and their successors shall always receive into any seminary or school under their superintendence any children or youths willing to enter the same subject to all the rules of disciplines whether for expulsion or otherwise provided for such seminaries and schools who shall be descended in the or family land from the father of him, the said Arnary Govindu Naicker and that all such youths or children so descended but not beyond the number of five at any one time shall be entitled to receive from the trustees for the time being the school fee at High School of the Madras University or at any other Government School or seminary. The Will further grants full permission to the above mentioned trustees and the survivors with the consent and approbation of the said Arnary Govindu Naicker during his life time and of their own behalf after his death to sell and dispose of and convey all or in part of the properties mentioned thereon. It is further stated in the Will that the above mentioned trustees of Pachaiyappa's Trust or any of them or any trustees or trust to be appointed as hereinafter mentioned shall by or ceased to be trustees of the said fund called the Pachaiyappa's Charitable Fund or become incapable or be unwilling to act in the trust hereby created (emphasis supplied by me), so that the trustees of these persons shall be reduced to the number of three then and in every such acts and when and so often as the same shall happen, it shall be lawful for the retiring trustee/trustees from the executors or administrators of the deceased trustee/trustees jointly with the continuing or surviving trustees, if any, or for some or one of such persons if the trustee unable or unwilling to exercise this present power by hand-writing to nominate, substitute and appoint any other persons or persons to be a trustee or trustees for the purpose aforesaid in the place and stead of them the said trustees who shall so die or become incapable or be unwilling in the trust as aforesaid or who shall cease to be trustee of the said Fund of the Pachaiyappa's Trust Fund as aforesaid. Provided always that such new trustees so to be nominated shall be chosen and shall if possible comprise the whole number of trustees for the time being of the said fund called Pachaiyappa's Charitable Fund and when and so often as any new trustee/trustees shall be nominated and appointed as aforesaid, the said trust premises and all other trust premises whatever which shall be then vested in the trustees or trustee for the time being in virtue of the trust herein before contained so that all the convenient speed at the cost of the said trust estate to be transferred and assigned and may offer and in such manner as that the same shall be legally and effectually vested in the surviving or continuing in the former trust/trustees and such new trust or trustees jointly or wholly in such new trusts as the case may require upon the trust aforesaid.

59.From the above, it is very clear that the testator Arnary Govindu Naicker created a Trust and entrusted the same with the trustees of the Pachaiyappa's Trust for their management of the trust created by Arnary Govindu Naicker, which means, the suit trust is a separate and independent trust which has been entrusted to the trustees of the Pachaiyappa's Trust for its management, as the testator clearly indicated that he doubts very much about the management of the trust after his demise and that is why when he himself was alive, he created the trust and reposing confidence in the trustees of Pachaiyappa's Trust and entrusted the properties for its effective management to pursue the objects of the trust. As rightly pointed by the learned senior counsel for the defendants 2 to 10 and the learned counsel appearing for the defendants 13 to 18, nowhere in the Will, the testator referred to his community name and he only preferred to give the benefits to the students and youths of Hindu religion and not to any particular community or to the community he belongs to.

60.In such circumstances, I am of the view that the suit trust is a separate and independent trust and it is not a mere endowment or estate mingled and annexed to the Pachaiyappa's Trust as contended by the defendants 2 to 10 and 13 to 18. Therefore, I am inclined to accept the view of Mr.T.R.Rajagopalan, the learned senior counsel appearing for the plaintiffs that the suit trust is a separate and independent trust.

61.However, even though it is an independent trust created by the testator in the Will as aforesaid, the testator reposed confidence in the trustees of the Pachaiyappa's Trust and categorically stated that the management of the trust should always be in the hands of the trustees of the Pachaiyappa's Charities. Therefore, even though I am inclined to accept the proposition of the learned senior counsel appearing for the plaintiffs that Govindu Naicker Trust is a separate and independent trust, still I am not inclined to bifurcate the Pachaiyappa's Trust by aggravating a separate trust to be put under the management of new trustee which includes members of the testator's vanniyar community. I have already referred to the fact that no where in the Will, the testator has referred to his community and he clearly points out that the benefit should go to the persons belonging to the Hindu Religion. If that being so, no caste or community wise members could be considered for appointment of trustees to the Pachaiyappa's Trust and the testator himself made it very clear that full discretion has been given to the trustees of the Pachaiyappa's Charities to appoint new trustees after the life time of the existing trustees. From the above, it is very clear that Govindu Naicker is a very cultured person who considers himself as above caste and creed and it looks at him as a member belonging to the Hindu religion. When such being the intention and desire of the testator, this Court cannot re-write the Will by not reading the word as Hindu and replacing it as Hindu Vanniyar. Hence, I am not inclined to appoint new trustees for the bifurcated trust including the members from the Vanniar Community as prayed for in the prayer b of the suit plaint.

62.The main submission made by the learned senior counsel appearing for the plaintiffs is that once the past trustees viz., defendants 2 to 10 and the present trustees viz., defendants 13 to 18 refused to accept the fact that the suit trust is a separate and independent trust, they are acting against the interest of the trust and therefore, the trust is to be bifurcated from the Pachaiyappa's Trust. I am unable to accept this submission made by the learned senior counsel, as merely because the trust is not considered as a trust as a separate or independent trust, it cannot be said that the trustees are against the interest of the trust. Further, all the past and present trustees viz., the defendants 2 to 10 and defendants 13 to 18 have completed their period and now the trust is under the management of the Administrator appointed by this Court on 16.10.2012. Therefore, on this score, I cannot bifurcate the trust and appoint new trustees including the members from the Vanniyar community. Though the learned senior counsel referred to case of Pachaiyappa's Trust Fund, Cheiyar's case in this regard, I am of the view that the facts of the present case are slightly different and therefore, the decision made in that case cannot be straight away imported to the facts of the present case.

63.Further, the learned senior counsel appearing for the plaintiffs contends that for so many years, the trust has been under the management of the Government and Administrator General and Official Trustee and therefore, there is nothing wrong if it is bifurcated new trustees are appointed for the bifurcated trust. I am unable to accept this submission also as the management went to the hands of the Government due to an enactment passed by the Legislature and until it was confirmed by the Hon'ble Supreme Court, it had to be in the hands of the Government. Further, due to certain facts and circumstances, the Administrator General and Official Trustee also came into picture and it was also under the management of the Administrator General and Official Trustee for quite a number of years. Simply because the management was with the Government and the Administrator General and Official Trustee for so many years, it cannot be now contended that if it is bifurcated and managed by new trustees other than the trustees of the Pachaiyappa's Trust, it will not go against the intention and sentiments of the testator. Once the enactment is set aside and confirmed by the Hon'ble Supreme Court, then, the testator's Will will revive and the position will be restored to its original status. Once it is restored to its original status, then, this Court cannot give a direction which is contrary to the intention, desire and sentiments of the testator by bifurcating the Trust from the Pachaiyappa's Trust.

64.Therefore, I am rejecting the prayer for framing a scheme and appointing trustees including the members from the Vanniyar community as prayed in the prayers a and b. For the very same reason, prayer C is also rejected and as already referred to by me in the previous paragraphs, now, neither the defendants 2 to 10 nor the defendants 13 to 18 who are in the management and the management is in the hands of the Administrator appointed by this Court. As the administrator is in custody of the properties, there is no question of directing the defendants to deliver possession of the properties.

65.With regard to prayers e and f are concerned, I am of the view that a number of allegations are levelled against the mis-management, arbitrary exercise of power, syphoning of funds, not pursuing the objects of the trust, not making any improvements to the said trust, using the funds of the trust for other purposes, developing Pachaiyappa's Trust by using the money of the suit trust, as rightly pointed out by the learned senior counsel for the defendants 2 to 10, the plaintiffs never made any accusations or allegations against the Pachaiyappa's Trust till the defendants 2 to 10 were appointed as trustees in the year 2000 and within a short span of time, a notice was sent followed by filing the suit. This Court cannot ignore the fact that from 1980 onwards, the management was in the hands of the Government Officials and with Administrator General and Official Trustee and only for two terms, the estate went into the hands of the trustees. If that be so, the defendants 2 to 10 and 13 to 18 could not be held responsible for all the omissions and commissions, deeds and misdeeds as stated in the suit plaint and further, the defendants 2 to 10 and 13 to 18 are no longer in the board of management of the trust. Further, the former Chief Election Commissioner, known for his administrative skill, has been appointed by this Court to take over the management and to attend to all the works of the trust till elections are conducted and the management is handed over to the newly elected board. I have already referred to the powers conferred on the Administrator appointed by this Court and if the plaintiffs are still aggrieved and persist that the allegations are based on unimpeached evidence, they can very well take out necessary representations to the Administrator, who in turn, can go into those allegations and take necessary action. It is open to the learned Administrator to look into this aspect and make necessary recommendations to this Court. Since the learned Administrator has been clothed with all the powers by this Court in the order dated 16.10.2012, he can very well act upon and make necessary remedial measures, keeping in mind that the intention of the testator is to create a separate trust which should be in the management of the trustees of Pachaiyappa's Trust while pursuing its objects of granting educational benefits (amended) to the people belonging to the Hindu religion.

66.Though the arguments were let out on both the sides with regard to the locus standi of the plaintiffs and the maintainability of the suit itself, in the light of the order I have passed, I have not gone into that question.

67.With the above observations, the suit is disposed off in the above terms .

cse

To

1. Pachaiyappa's Trust Board,

Rep. by its President

Office at Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

2. R.Ganesan

Trustee  President,

Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

3. Nanjil Kennady,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

4. P.M.Anbumani,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

5. V.Sukumar Babu,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

6. R.Prabhakaran

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

7. Dr.R.Thandavan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

8. P.V.Kalyanasundaram,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

9. M.K.Mohan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

10. S.Seran,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

11. Advocate General,

High Court,

Chennai  600 104.

12. Administrator General and Official Trustee,

High Court, Chennai  600 104.

13. Isari K.Ganesh,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

14. A.Vetriazhagan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

15. C.Saravanan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

16. Dr.M.K.Loganathan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

17. G.Sivasubramaniam,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar, Chennai  600 030.

18. M.Padmanabhan,

Trustee, Pachaiyappa's Trust Board,

Pachaiyappa's College Campus,

Shenoy Nagar,

Chennai 600 030