Ashok Bhushan, J. - (1.) These appeals have been filed against the common judgment dated 7th July, 2005 of Madras High Court in Appeal Suit(AS) No.851 of 1989 and Appeal Suit (AS)No.606 of 1989. These appeals arise out of Original Suit No.76 of 1981 instituted by respondent No.1 to these appeals. The parties hereinafter shall be referred to as described in the Original Suit No.76 of 1981.
(2.) Civil Appeal No.5924 of 2005 has been filed by Dr. K.S. Palanisami who was defendant No.13 in the Original Suit. Civil Appeal No.5925 of 2005 has been filed by G.K. Perumal and Ramayummal who were defendant Nos.4 and 5 in the Original Suit. Civil Appeal No.5926 of 2005 has been filed by Thirugnanasambandam and Dr. M.R. Sibbian who were defendant Nos.7 and 10 in the Original Suit. Civil Appeal No. 6469 of 2005 has been filed by G.K. Perumal and Ramayummal who were defendant Nos. 4 and 5 in the Original Suit.
(3.) Brief facts of the case necessary to be noted for deciding these appeals are: (A) One Palaniappa Chettiar and his wife, Chinammal @ Rangammal possessed considerable properties in Gobichettipalayam Taluk including 29 houses and 96.950 acres of Agriculture land. Rangammal possessed certain agricultural land in Sathy Taluk also. Both Palaniappa Chettiar and his wife, Rangammal jointly executed a Will dated 27.9.1968. It is stated in the Will that couple do not have any issue and there is no hope that they will live long and their relatives are not fit to enjoy the properties. The Will further stated that on the death of any one of them, survivor shall enjoy the entire property. The Will enumerated various charities to be carried from the income derived from the properties. Three Members Committee was constituted for carrying out the charitable objects. The Will in List No.1 enumerated the details of house properties, agricultural properties in the name of Palaniappa Chettiar and List No.2 contained the house and agricultural properties in the name of Chinammal @ Rangammal. After execution of the Will, on 5.10.1969 Palaniappa Chettiar died. After the death of Palaniappa Chettiar, Rangammal alienated about 10 properties by separate sale deeds which were in her name as well few properties which were in the name of her deceased husband. (B) Defendant Nos.4 and 5 claimed that Rangammal by a registered Will dated 27.11.1980 bequeathed her entire properties in favour of defendant Nos.4 and 5. Smt. Rangammal died on 24.12.1980. After the death of Rangammal, defendant Nos.4 and 5 made several alienations of the properties belonging to Rangammal and her deceased husband on the strength of Will dated 27.11.1980. (C) Respondent No.1 claiming to be representative of Hindu Community in General and Citizens of Gobichettipalayam filed Original Suit No.76 of 1981 impleading Commissioner of Hindu Religious and Charitable Endowment, Madras as defendant No.1, Revenue Divisional Officer, Gobichettipalayam as defendant No.2 and District Munsif, Gobichettipalayam as defendant No.3 along with other defendants who claimed to be transferees from Rangammal. Defendant Nos.4 and 5 were impleaded who claimed a Will dated 27.11.1980 from Rangammal of the entire properties apart from sale deed from Rangammal. Plaintiffs' case in the suit was that Palaniappa Chettiar and his wife, Rangammal by registered Will dated 27.9.1968 created a Trust and made arrangements for due performance of charitable objects. The power of management and administration of the Trust was given in the Will to defendant Nos.1 to 3 who were authorised to deal with the Trust property without any power of alienation. It was pleaded that Will dated 27.9.1968 was a mutual and irrevocable Will. It was pleaded that Palaniappa Chettiar and his wife during their life time could not have acted in derogation of the Will. The plaintiff further stated that purported Will dated 27.11.1980 was not executed by Chinnammal @ Rangammal in a sound and disposing state of mind and the same was brought by defendant Nos.4 and 5 by fraud, undue influence and coercion. Defendant Nos.6 to 13 are said to be purchasers of some of the items of the suit properties from Rangammal and some from defendant Nos.4 and 5. Plaintiffs pleaded that defendants are trespassers of the trust properties covered under the Will dated 27.9.1968. The plaintiffs were interested in the Trust to be administered by defendant Nos.1 to 3 or other new Trustees to be appointed by the Court. The plaintiffs prayed for necessary arrangements for the management of the Trust requiring defendant Nos.1 to 3 to enter upon their duties as Trustees and take up the management of the Trust or make arrangement for the appointment of other Trustees for proper management of the Trust. Defendants filed written statements in the suit. (D) The trial court framed 17 issues in the suit. The trial court held that Will Ex. P-5 dated 27.9.1968 is not a mutual Will but a joint Will and after the death of Palaniappa Chettiar the Will became irrevocable. (E) The trial court further held that Will dated 27.9.1968 is a true and valid document. It was further held that plaintiffs were entitled to represent the Hindu Community in General and Citizens of Gobichettipalayam under Order 1 Rule 8 CPC. Trial court further held that Will dated 27.11.1980 claimed by defendant Nos.4 and 5 is not proved and it has not been executed in good, sound and disposing state of mind. Ex.D-109, Will dated 27.11.1980 was held not a true and valid Will. The trial court, came to the conclusion that Trust is not formed under the Will dated 27.9.1968, hence, plaintiffs were not entitled for framing a scheme under Section 92 CPC. The suit was dismissed. (F) Against the judgment of the trial court dated 2nd February, 1989 two Appeal Suits (AS) were filed in the Madras High Court. A.S.No.851 of 1989 was filed by the plaintiffs against the trial court judgment dismissing the Original Suit No.76 of 1981. A.S.No.606 of 1989 was filed by G.K. Perumal and Ramayummal, defendant Nos.4 and 5 against the judgment of the trial court in so far as it rejected the Will dated 27.11.1980. Both the appeal suits were decided by the Madras High Court by the impugned judgment dated 7th April, 2005. The High Court dismissed the A.S.No.606 of 1989 concurring with the judgment of the trial court in so far as it has rejected Will dated 27.11.1980. A.S.No.851 of 1989 was allowed by the High Court and the judgment of the trial court in so far as it was against the plaintiffs was set aside. The High Court held the Will dated 27.9.1968 as mutual and joint Will. It was held that after the death of Palaniappa Chettiar, Rangammal had no right to alienate any property and all alienations of the properties made by her after the death of Palaniappa Chettiar were null and void. (G) The High Court disposed of both the Appeal Suits in the following manner: "116.In the result, (i) A.S.No.851 of 1989 stands allowed. The Judgment of the Trial Court in so far as it is against the Plaintiffs and the decree is set aside. (ii) A.S. No.606 of 1989 stands dismissed. The finding of the Trial Court on the issue No.13 framed by it stands confirmed. (iii) The result is, learned Subordinate Judge, Gobichettipalayam or the Judicial Officer having jurisdiction over the matter is permitted to discharge the Receiver after the Receiver submits his accounts and on being satisfied that the Receiver can be discharged. (iv) Learned Judicial Officer having jurisdiction over the case is directed to frame a proper Scheme for the trust and while framing the Scheme, he need not include the District Munsif, Gobichettipalayam as one of the trustees, though the makers of the Will (Ex.A-5) have expressed their desire that the District Munsif, Gobichettipalayam should be one of trustees. We are of the view, it will not be proper to induct the District Munsif as one of the trustees as it may happen that litigation in respect of the trust as well as its properties may come up before him in his official capacity and it may not be advisable to induct him as one of the trustees. Learned Judicial Officer is also directed to take into account the wishes of the testators of Ex.A-5 while framing the Scheme, as they wished that the relatives of either of them should be excluded from the enjoyment and management of their properties. While appointing the trustees, learned Judicial Officer is directed to keep in mind that the persons of unimpeachable character and high integrity and at least, some of them, if possible from the community to which Palaniappa Chettiar belongs should be appointed as trustees.; It will be open to the learned Judge to consider the entrustment of the administration and management of the trust to the Administrative General and Office Trustee (AG & OT) of this Court as he will be functioning under the guidance of this Court. (v) Since the plaintiffs have not prayed for costs, there will be no order as to costs in both appeals.";