V.N. Bharathi v. V.N. Parameswaran and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944 RFA NO.813 OF 2008** **AGAINST THE DECREE AND JUDGMENT DATED 12.02.2008 IN O.S.NO.244/2000 ON THE FILE OF THE SUB COURT, PALAKKAD. APPELLANT(PLAINTIFF):** **V.N.BHARATHI, W/O.P.A. ANANDHARAMAN, RESIDING AT.V.V.P.BUILDINGS, H.P.O. ROAD, PALAKKAD.** **BY ADVS.R.HARISHANKAR PARVATHY NAIR** ## **RESPONDENTS/DEFENDANTS:** **1 V.N.PARAMESWARAN, S/O. LATE V.P.NATARAJAN, RESIDING AT OPPOSITE HEAD POST OFFICE, KOPPAM AMSOM AND DESOM, PALAKKAD-678 001. 2 V.N. AMBIKA, D/O. LATE V.P. NATARAJAN, C1-308, 3RD FLOOR, HARASIDAN PARK, POKRAN ROAD, NO.2, PAWAR NAGAR, THANE WEST, MUMBAI-400 601. 3 V.N.JAGATHAMBAL, D/O. LATE V.P. NATARAJAN, FLAT NO.605, 6TH FLOOR, RADIANT WING, REHEJA VIHAR, CHANDIVALLI-1, MUMBAI-400 072. 4 GEETHAMOORTHY, D/O.V.N. RAJESWARI, FLAT NO.5, SAMEANOR, SAHYADRI PARK, SALUKVIHAR ROAD, NEAR ABC FARM, POONA-411 022.** -2- ## **R.F.A.No.813 of 2008** - **5 S.GANESH, S/O. V.N. RAJESWARI,** - **RAJAPRIYA HILL TOP GARDENS, THURAVOORKONAM, KARAKULAM PO., THIRUVANANTHAPURAM-695 564.** - **6 NEERA, D/O. LATE V.N. VANI, PLOT NO.2021, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.** - **7 RAJAN, S/O. LATE V.N. VANI, PLOT NO.20/21, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.** - **8 VIJAYA, D/O. LATE V.N.VANI, PLOT NO.20/21, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.** - **9 PRAKASH, S/O.V.N. VANI, SUNDARESH FIRST FLOOR, SHREENAGAR, ESTATE GOREGOAN, WEST MUMBAI.** - **10 V.H. SIVASUBRAMANIAN, S/O. LATE KALYANI AMMAL, PLOT NO.B2, JULIASWADI, OPPOSITE NEW MUNICIPAL HIGH SCHOOL, JAYAPRAKASH NAGAR,GOREGAN EAST, MUMBAI.** - **11 V.H.LALITHA, D/O. KALYANI AMMAL,932-H, K.N.EXTENSION, YASWANTHAPUR, BANGALORE.** - **12 V.V.PARAMESWARAN,(DIED-LRS IMPLEADED) S/O. LATE V.P. VISWANATHAN, 4, A.V.S., A.V.R. COLONY, CHINNA ANDAVAR KOVIL STREET, KAROOR-639 001.** - **13 MUHAMMED MUSTHAFA, S/O. KIZHAKKAPALLIKAL MUHAMMEDALI HAJI, PANNAKKAD VILLAGE, ERANAD TALUK, MALAPPURAM DISTRICT.** -3- ## **R.F.A.No.813 of 2008** |*** ADDL.**|**LAKSHMI ALIAS AMMINI PARAMESWARAN,**| |---|---| |**R14**|**W/O. V.V. PARAMESWARAN,**| ||**RESIDING AT NO.8, AURA IIND SEANARD ROAD,**| ||**VALMEEKI NAGAR, THIRUVANMAYOOR,**| ||**CHENNAI-41.**| |*** ADDL.**|**VIJAYAM,**| |**R15**|**D/O. V.V. PARAMESAWARAN**| ||**AND W/O. ANANDAKRISHNAN,**| ||**RESIDING AT NO.8, AURA IIND SEANARD ROAD,**| ||**VALMEEKI NAGAR, THIRUVANMAYOOR,**| ||**CHENNAI-41.**| |*****|**LRs OF THE DECEASED R12 ARE IMPLEADED AS**| ||**ADDITIONAL R14 & 15 VIDE ORDER DATED 23.02.2016**| ||**IN I.A.NO.312/2014.**| ||**SRI.S.V.BALAKRISHNA IYER SR.**| ||**SRI.K.JAYAKUMAR**| |**R1**|**SRI.P.B.KRISHNAN**| ||**SRI.P.M.NEELAKANDAN**| ||**SRI.SABU GEORGE**| ||**SMT.B.ANUSREE**| |**R2,R3,R6,**|| |**R8,R10,R11 **|**SMT.MINI V.MENON**| |**R4, R7 &**|| |**R9**|**SRI. THIYYANNOOR RAMAKRISHNAN**| |**R15**|**SRI.O.RAMACHANDRAN NAMBIAR**| ||**SRI.GEEN T.MATHEW**| |**R13**|**SRI. S.SREEKUMAR (SR.)**| ||**SRI.P.MARTIN JOSE**| |**R14**|**SRI. P. ARUN KUMAR**| |**R12**|**SRI.K.A.SHAMSUDEEN**| ||**SRI.K.I.ABDUL RASHEED**| **THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **R.F.A.No.813 of 2008** -4- ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **---------------------------------------------R.F.A.No.813 of 2008 ---------------------------------------------Dated this the 29[th] day of March, 2022** ## **C.S.Sudha, J.** This appeal is filed against the judgment and decree dated 12.02.2008 in O.S.No.244/2000 on the file of the Subordinate Judge's Court, Palakkad. The suit for partition has been dismissed. The plaintiff is the appellant herein and the defendants are the respondents herein. The parties in the appeal will be referred to as described in the suit. 2. The case of the plaintiff is :- The plaint schedule property is the self acquired property of late V.V. Parameswara Iyer (V.V.P. Iyer), who had four children, namely, V.P. Viswanathan, V.P. Natarajan, V.P. Kallyani Ammal and V.P. Saraswathy Ammal. All these four persons are now no more. Plaintiffs and defendants 1 to 9 are the heirs of late V.P. Natarajan. Defendants 10 and 11 are the heirs of late Kallyani Ammal. Saraswathy Ammal died issueless and hence, her share has devolved on the other heirs. The 12[th] defendant is the legal heir of late V.P. Viswanathan. After the demise of V.V.P. Iyer, the ## **R.F.A.No.813 of 2008** -5- property was managed by his wife, late Samboorna Ammal and his son late V.P. Natarajan. The property has been in the joint possession and enjoyment of the plaintiff and the defendants as per the provisions of the Will executed by late V.V.P. Iyer. After the demise of late V.P. Natarajan in the year 1960, the properties were possessed and managed by his widow Janaki Ammal. Another property that was included in the Will executed by V.V.P. Iyer is the Higher Elementary School at Vadakkanthara. The same was sold by all the legatees jointly and the profits divided and apportioned in proportion to their respective shares. This was done since the running of the school was found to be not profitable. From 1964 onwards, the property is being managed by the 1[st] defendant. There was a school functioning in the property under the name and style V.V.P. High School, Palakkad. Another educational institution namely, Kulapathy Elementary School has been wound up by the 1[st] defendant and the buildings in which the school was being run are now kept under the lock and key of the 1[st] defendant. The rent from the buildings situated in the property other than the school and the profits derived from the management of the school are being collected by the 1[st] defendant. Adjacent to the Kulapathy Elementary School, the 1[st] defendant has constructed a building out of the profits ## **R.F.A.No.813 of 2008** -6- derived from the management of the properties. The 1[st] defendant has no income of his own and the entire investment for the construction has come out of the funds he received in his capacity as Manager of the entire properties. This building consisting of four rooms in the ground floor has been rented out. There is a residential apartment in the first floor. The 1[st] defendant is running a medical store by name, 'Gita Medicals' in another building constructed out of the profits he has derived from the management of the common properties. All the shop rooms situated in the schedule property are situated abutting the main road and it is understood that the 1[st] defendant has taken hefty sums as advance from the tenants. From the year 1988, it has come to the notice of the other sharers that the 1[st] defendant has been mis-managing the property. Therefore, the 2[nd] defendant herein along with her mother filed O.S.No.255/1988 for partition of the properties. The plaint schedule property in this case was the 'A' schedule property in O.S. No.255/1988. In the said case, 'A' schedule was found to be not partible. The Will under which the parties are claiming right in the property provides for a clause that the trustee is the person to decide when the school has to be wound up. As the school in the property was functioning, the court in the said suit found 'A' schedule ## **R.F.A.No.813 of 2008** -7- property to be not partible. Thereafter, by judgment dated 21.02.2000 in W.A. No.325/1994, permission granted for closure of the school has been upheld. Consequent to the said order, the school has been wound up and all educational activities in the property have ceased. After the closure of the school, the 1[st] defendant is trying to deal with the property as if it belongs to him exclusively. He started demolishing the structures in the premises and attempted to dispose of the property at throw away price. The entire property is partible. Hence, the suit for partition claiming plaintiff's 66/864 share in the property. 3. The 1[st] defendant contested the suit and filed written statement in which he contended that the property is not partible. In the light of the judgment and decree in O.S. No.255/1988, the present suit is hit by Order II Rule 2 C.P.C. and is also barred by resjudicata. As per the Will executed by V.V.P. Iyer, no property has been allotted to the plaintiff and therefore, she is not entitled to get any share in the property. The terms of the Will do not permit the institution of a suit for partition of the properties or the assets of the Trust. The right to deal with the property vests only with the Trustee, who is the 1[st] defendant and his actions cannot be questioned by the plaintiff or the other defendants in this case. All the ## **R.F.A.No.813 of 2008** -8- properties of late V.V.P. Iyer was bequeathed to the Trust. His wife late Samboorna Ammal and his second son, late V.P. Natarajan were appointed, the executors of the Will to the exclusion of all the other members of the family, to carry out the directions in the Will. Therefore, neither the plaintiff nor any other member of the family is competent to claim any right or title to the properties of the Trust. The Trust properties are placed exclusively in the care and management of the executors and in accordance with the terms of the Will, the 1[st] defendant, the present trustee alone is competent to decide and do whatever is required in the best interest of the Trust. The sale of the Higher Elementary School at Vadakkanthara was effected by the Executor appointed under the Will and not by all the members of the family jointly, as alleged in the plaint. It was only because the purchaser of the property insisted that all the parties join in the assignment deed relating to the Higher Elementary School at Vadakkanthara, the members of the family had joined in the deed. This would not confer them any right in the property. The Will does not confer any right or title relating to the movable and immovable property referred to in the Will. The 1[st] defendant has been given exclusive rights over the same. Kulapathy Elementary School has been closed since it was ## **R.F.A.No.813 of 2008** -9- uneconomical. The allegation that the 1[st] defendant has started to demolish the structures in the property and has attempted to dispose of the property at throw away prices is also false and incorrect. The allegation in the plaint that as the school has been wound up, the educational activities have ceased to exist and therefore, the intention of the Trustee is to close down the educational activities and the trust, is incorrect. The educational activities have not ceased to exist. The Trust has not ceased to function after the disposal of the assets or the properties of the school. The Trust continues under the exclusive management of the Trustee. In the interest of the Trust, the Trustee is competent to even start fresh educational institutions or connected activities. The plaintiff is not entitled to the reliefs prayed for, as the properties are not partible and hence, the suit is liable to be dismissed with costs. 4. The 12[th] defendant filed a written statement, supporting the claim for partition. 5. The additional 13[th] defendant was impleaded as per order dated 08.06.2005 in I.A.No.2398/2000. He contended that, as per an agreement for sale with the 1[st] defendant, he has agreed to purchase the property for a total consideration of ` 95,00,000/-, out of which he has ## **R.F.A.No.813 of 2008** -10- already paid an amount of ` 1,00,000/- as advance. However, the attempt of the 1[st] defendant is to wriggle out of the agreement and demolish the buildings in the property and sell the property to third parties. 6. On completion of pleadings, necessary issues were framed by the court below. PW1 was examined and Exts.A1 to A5 were marked on the side of the plaintiff. No oral evidence was adduced by the defendants. Exts.B1 to B8 were marked on the side of the defendants. After considering the oral and documentary evidence and hearing the parties, the court below dismissed the suit on the ground that it is barred by resjudicata. The plaint schedule property was found to be not partible. However, the shares of each sharer was declared. Hence the appeal. 7. The only point that arises for consideration in this appeal is whether there is any infirmity in the findings of the court below calling for an interference by this Court. 8. Heard Sri.R.Harisankar, the learned counsel for the appellant and Sri.S.V. Balakrishna Iyer, the learned Senior Counsel for the 1st respondent, Sri.Arun Kumar P., the learned counsel for respondents 4, 7 and 9 and Sri. K.A. Shamsudeen, the learned counsel for the 12 th respondent. ## **R.F.A.No.813 of 2008** -11- 9. Admittedly, the plaint schedule property is the self acquired property of late V.V.P. Iyer, the predecessor in interest of the plaintiff and defendants 1 to 12. Ext.B1 Will is admitted by both sides. Ext.B1 Will is dated 10.06.1939. As the Will is more than 30 years old, the presumption contained in Section 90 of the Evidence Act is available ## **(Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon** ## **[2018 (2) KLT 553])** . ## 10. Clause 9 in Ext.B1 Will reads thus:- " _(9) Should it be found that the schools are not self supporting for three consecutive years it shall be permissible for the trust to reduce the status of the schools to make them self supporting or to handover the management of one or more of the schools to any public or private body in return for a reasonable rent or even ultimately to wind up the Trust selling the properties and good wills of the schools to the best advantage and the sale proceeds be divided equally among:_ " 11. Therefore, only in the event of the Trustee, who is admittedly the 1[st] defendant herein deciding to wind up the Trust and sells the property and goodwill of the schools, the sharers become entitled to get their share of the sale proceeds divided equally among them. Admittedly, the school in the plaint schedule property is not functioning now. The case of the plaintiff is that the 1[st] defendant is not taking any step ## **R.F.A.No.813 of 2008** -12- as per the stipulation contained in the Will. Admittedly, a suit for partition, namely, O.S.No.255/1988 had been filed by one of the defendants in this case in which the plaintiff herein and the other defendants excluding the additional 13[th] defendant were parties. The 'A' schedule in O.S.No.255/1988 is the plaint schedule property herein. Ext.B5 is the copy of the judgment in the said suit. In Ext.B5 judgment, the Court relying on Clause 9 of Ext.B1 Will, held that 'A' schedule property is not partible and that the cause of action for partition would arise only when the Trustee, i.e., the 1[st] defendant herein, decides to wind up the activities of the Trust and decides to sell the property. When the said case was filed and pending, admittedly, V.V.P. School was functioning in the property. As the school was functioning, the court held that the property was not partible. Ext.B5 judgment has become final as no appeal has been preferred against the same. Admittedly, the 'A' schedule property in the said case is the plaint schedule property in this case and the parties in both suits are also the same. The issue involved is also the same and therefore, the present suit, as held by the court below is barred by resjudicata. 12. Though the property was found to be not partible in the light of Clause 9 to Ext.B1, the share of the sharers has been declared by ## **R.F.A.No.813 of 2008** -13- the court below. The sharers are entitled to get their share in the event of the trustee, viz., the 1st defendant selling the plaint schedule property. The allotment of shares is not disputed. Therefore, no interference is called for on that account also. 13. It is submitted by the learned counsel for the plaintiff that the 1[st] defendant is not acting as per the stipulations contained in Ext.B1 Will. He is handling the property as if he is the sole and exclusive owner of the property. It was when he started demolishing the structures in the property and attempts were being made to dispose of the property at throw away price, the present suit has been filed. The 1[st] defendant is making no attempts whatsoever, to revive the schools or educational activities of the Trust. Therefore, practically for all purposes, the Trust has been wound up. In spite of the fact that the schools have been wound up, the 1[st] defendant is not taking any steps for disposing of the property and sharing the sale proceeds in accordance with the other sharers. 14. It is true that in the earlier suit, the cause of action had not arisen because the school was still functioning. However, the position is not the same now as the 1[st] defendant also does not have a case that the school in the property is functioning. From the arguments advanced on -14- ## **R.F.A.No.813 of 2008** behalf of the plaintiff, it appears that the stand of the plaintiff is that the 1[st] defendant is adopting a "dog in the manger attitude" by neither acting in terms of the stipulations contained in Ext.B1 nor is he taking any step(s) to dispose of the property and share the sale proceeds with the remaining sharers. However, the parties are not without any remedy. Admittedly, the 12[th] defendant herein has filed O.S.No.120/2009 claiming reliefs on the strength of Section 61 of the Trust Act, which reads:- ## **"** _**61. Right to compel to any act of duty.**_ _The beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such, and restrained from committing any contemplated or probable breach of trust._ " 15. The relief sought for is a decree of mandatory injunction to direct the trustee to sell the property in the best interest of the beneficiaries. 16. It was submitted that O.S.No.120/2009 stands stayed under Section 10 C.P.C. because of the pendency of this appeal. As O.S.No.120/2009 has been filed on the strength of Section 61 of the Trust Act, the grievance of the plaintiff and the other sharers would be redressed if necessary reliefs are obtained in the said suit. In the present appeal, we do not find any infirmity in the findings of the court below calling for an -15- ## **R.F.A.No.813 of 2008** interference. In the result, the appeal is dismissed. We direct the Munsiff's Court, Palakkad wherein O.S.No.120/2009 is pending to dispose of the matter, at the earliest. In the circumstances of the case, the parties shall suffer their respective costs. All interlocutory applications, pending if any, shall stand disposed of. Sd/- **P.B.SURESH KUMAR JUDGE** Sd/- **C.S.SUDHA JUDGE** bpr/