ANDI CHETTIAR Vs. RAMANATHAN CHETTIAR
HIGH COURT OF KERALA
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(1.) THE revision petitioner was one of the candidates for election to the office of trustee and the commissioner who conducted the election as per the provisions of a scheme decree reported that he had secured the highest number of votes i. e. 40. THE 1st counter-petitioner in this revision petition filed a petition CMP 1380 dated 1. 3. 1954 praying that the election of the petitioner should not be confirmed as there was material irregularity in conducting the election. THE irregularity pleaded was that there were two persons bearing the same name. K. Ramanathan Chettiar and that the voters had no means of distinguishing between the two at the election. THE 1st counter-petitioner is one of the two Ramanathan Chettiars. Another petition cmpno. 1452 dated 5. 3. 1954 was filed by one Velu Chettiar who objected to the confirmation of the petitioner's election on the ground that he was indebted to the trust under the decree in O. S. No. 577 of 1952 and also that he had executed a mortgage with possession of certain properties to the trust for a sum of Rs. 4,000. THE Court below refused to confirm the election on the ground that the failure to give some distinguishing mark to one of the two Ramanathan chettiars was a ground which vitiated the election. THE grounds taken by Velu chettiar were not considered. THE petitioner in CMP No. 1380 alone was originally made a counter-petitioner in this revision petition. He was not present at the hearing and the revision petition was allowed on 19th November 1954. Subsequently he applied for restoration of the revision petition to file but his application was dismissed. Velu Chettiar also applied for restoration and for impleading him as an additional counter-petitioner. His prayers were granted restoring the revision petition to file and impleading him as 2nd counter-petitioner. THE Civil Revision petition was heard again.
(2.) THE 2nd counter-petitioner's objection to the election of the petitioner was on the ground that he was indebted to the trust. It was provided in the scheme decree that the trustee should not have financial dealings with the trust. Relying on this provision it was contended that the petitioner who was a debtor to the trust should not be validly elected as a trustee. THEre is no substance in this contention. This provision in the constitution of the trust came up for consideration by the High Court of Travancore at least on two previous occasions. THE first was in Akasaperumal Sankarkumaran Chettiar v. Manikkavachakom Chidambarakumaru Mooppanar (21 T. L. J. 546 ). THE question in that case was whether person who had taken properties belonging to the trust on lease before the date of the election would be disqualified to act as trustee. This objection was over-ruled and it was held that a person who was already in possession of trust properties as lessee was not ineligible for appointment as trustee. This question came up again in A. S. No. 524 of 1111 of the High Court of Travancore. It was held that a lessee was not incompetent to act as trustee and further that a person who was liable to render accounts to the trust under a decree could not be said to be ineligible for appointment. THE real object of the provision appears to be to prevent the trustee from dealing with trust funds and properties to his personal advantage. So far as the present case is concerned the petitioner undertakes to deposit in court the whole amount due under the decree obtained by the trust against him. THE other transaction between himself and the trust is in respect of the usufructuary mortgage executed by him. This has only to be treated as an investment of trust funds and it need not stand in the way of his holding office as trustee. THE objections urged by the 2nd counter-petitioner must therefore be disallowed.
In view of the restoration of the civil revision petition to file, the 1st counter-petitioner also urged his objection. This is a matter dealt with by the court below. His objection in the lower court was that there was another candidate bearing the same name and that the confusion resulting from two candidates having the same name has vitiated the election. The total number of votes secured by the 1st counter-petitioner and the other person bearing the same name is lower than that obtained by the petitioner. The alleged irregularity even if correct does not constitute a valid ground for setting aside the election. The 1st counter-petitioner wanted to raise grounds which were not taken by him in the lower court but permission to do so was refused.
In the result, the order of the court below is reversed and the election of the petitioner Velayudhan Chettiar Aundi Chettiar as one of the trustees is confirmed. The court below will see that the debt due from him under the decree in O. S. No. 577 of 1952 is discharged by him before he begins to officiate as trustee. Subject to the above direction the Civil revision Petition is allowed with costs. Allowed.;
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