# V. PRAKASH @ G.N.V. PRAKASH v. M/s. P.S. GOVINDASWAMY NAIDU & SONS' CHARITIES REPRESENTED BY ITS MANAGING TRUSTEE & ORS

- **Citation:** [2022] 18 S.C.R. 948
- **Court:** Supreme Court of India
- **Decided:** 2022-05-09
- **Case number:** Civil Appeal No. 3791 of 2022
- **Bench:** Vineet Saran, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-prakash-g-n-v-prakash-v-m-s-p-s-govindaswamy-naidu-sons-charities-represented-36183
- **Pages:** 39

## Headnote

Trusts Act, 1882- Validity of Appellant's claim to the office of
founder trustee in the respondent-Trust- Held: The overwhelming
evidence produced by the appellant in the form of Aadhaar Card
issued by the Government of India as also his Income Tax
assessments in India based on the certification of Chartered
Accountant of his fulfilling the requirement of 'resident' in terms of
s.6 of the Income Tax Act, 1961 has been taken to be of little value
by the High Court after counting the number of days of the
appellant's stay in India and then questioning that the certificates
were not showing as to for how many days he was in Madras
Presidency-Also, appellant's ownership and possession of property
in India, including residential property; having bank accounts in
India; being assessed as resident for the purpose of Income Tax
Act, 1961 have all been brushed aside by the High Court by mere
count of number of days of stay in India- Mere holding of Green
Card of the United States of America cannot be treated as decisive
of the matter in the present case-When examining the matter from
the point of view of spirit of Scheme of Administrationgoverning
the Trust, the concept of representation of the branch of founder
trustee needs to be respected and, in that regard, claim of the
descendant like the appellant cannot be lightly brushed aside by a
mere count of number of days of stay in India while ignoring all
other features and factors showing his choice of staying in IndiaTrial Court rightly analysed the evidence on record and arrived at
a just conclusion in upholding the claim of the appellant to the
office of founder trustee in the respondent-Trust as the representative
of the branch of 'PSGNN'- Impugned judgment set aside - Judgment
and decree of the Trial Court restored - Thus, the appointment of
respondent no.10 in the Trust stands annulled - Appellant entitled
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to hold the office of founder trustee representing 'PSGNN' branchIncome Tax Act, 1961- s.6 - Estoppel - Principle of res judicata.
Deeds and Documents- Rules of construction - Construction
of terms of Scheme of Administration (SOA) governing the
respondent-Trust and their application to the facts of present case
(more particularly regarding abode/residence of plaintiff-appellant)-
Discussed - Interpretation of Statutes.
Words and Phrases - 'resides' - Discussed.
Allowing the appeal, the Court
1.1 The High Court seems to have approached the case
from an altogether wrong angle and has proceeded on irrelevant
considerations while ignoring the relevant factors and material
considerations. The High Court seems to have picked up the
residential requirement in the qualification for trusteeship in the
Scheme of Administration as being of strict physical presence,
de hors the context and de hors the purpose.The overwhelming
evidence produced by the plaintiff-appellant in the form of Aadhaar
Card issued by the Government of India as also his Income Tax
assessments in India based on the certification of Chartered
Accountant of his fulfilling the requirement of 'resident' in terms
of Section 6 of the Income Tax Act, 1961 has been taken to be of
little value by the High Court after counting the number of days
of the appellant's stay in India and then questioning that the
certificates were not showing as to for how many days he was in
Madras Presidency. Even in that regard, the High Court, though
referred to the decision in Mst Jagir Kaur but failed to take note
of the ratio therein. The appellant's ownership and possession of
property in India, including residential property; having bank
accounts in India; being assessed as resident forthe purpose of
Income Tax Act, 1961 have all been brushed aside by the High
Court by mere count of number of days of stay in India. This
Court is unable to endorse this approach.[Paras 23 and 24][980A-E]
Mst Jagir Kaur &Anr. v. Jaswant Singh [1964] 2 SCR
73- referred to.
1.2 In paragraph 21 of the impugned judgment, the High
Court has obs

## Text

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SUPREME COURT REPORTS
[2022] 18 S.C.R.
 [2022] 18 S.C.R. 948
948
V. PRAKASH @ G.N.V. PRAKASH
v.
M/s. P.S. GOVINDASWAMY NAIDU & SONS' CHARITIES
REPRESENTED BY ITS MANAGING TRUSTEE & ORS.
(Civil Appeal No. 3791 of 2022)
MAY 09, 2022
[VINEET SARAN AND DINESH MAHESHWARI, JJ.]
Trusts Act, 1882- Validity of Appellant's claim to the office of
founder trustee in the respondent-Trust- Held: The overwhelming
evidence produced by the appellant in the form of Aadhaar Card
issued by the Government of India as also his Income Tax
assessments in India based on the certification of Chartered
Accountant of his fulfilling the requirement of 'resident' in terms of
s.6 of the Income Tax Act, 1961 has been taken to be of little value
by the High Court after counting the number of days of the
appellant's stay in India and then questioning that the certificates
were not showing as to for how many days he was in Madras
Presidency-Also, appellant's ownership and possession of property
in India, including residential property; having bank accounts in
India; being assessed as resident for the purpose of Income Tax
Act, 1961 have all been brushed aside by the High Court by mere
count of number of days of stay in India- Mere holding of Green
Card of the United States of America cannot be treated as decisive
of the matter in the present case-When examining the matter from
the point of view of spirit of Scheme of Administrationgoverning
the Trust, the concept of representation of the branch of founder
trustee needs to be respected and, in that regard, claim of the
descendant like the appellant cannot be lightly brushed aside by a
mere count of number of days of stay in India while ignoring all
other features and factors showing his choice of staying in IndiaTrial Court rightly analysed the evidence on record and arrived at
a just conclusion in upholding the claim of the appellant to the
office of founder trustee in the respondent-Trust as the representative
of the branch of 'PSGNN'- Impugned judgment set aside - Judgment
and decree of the Trial Court restored - Thus, the appointment of
respondent no.10 in the Trust stands annulled - Appellant entitled
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to hold the office of founder trustee representing 'PSGNN' branchIncome Tax Act, 1961- s.6 - Estoppel - Principle of res judicata.
Deeds and Documents- Rules of construction - Construction
of terms of Scheme of Administration (SOA) governing the
respondent-Trust and their application to the facts of present case
(more particularly regarding abode/residence of plaintiff-appellant)-
Discussed - Interpretation of Statutes.
Words and Phrases - 'resides' - Discussed.
Allowing the appeal, the Court
1.1 The High Court seems to have approached the case
from an altogether wrong angle and has proceeded on irrelevant
considerations while ignoring the relevant factors and material
considerations. The High Court seems to have picked up the
residential requirement in the qualification for trusteeship in the
Scheme of Administration as being of strict physical presence,
de hors the context and de hors the purpose.The overwhelming
evidence produced by the plaintiff-appellant in the form of Aadhaar
Card issued by the Government of India as also his Income Tax
assessments in India based on the certification of Chartered
Accountant of his fulfilling the requirement of 'resident' in terms
of Section 6 of the Income Tax Act, 1961 has been taken to be of
little value by the High Court after counting the number of days
of the appellant's stay in India and then questioning that the
certificates were not showing as to for how many days he was in
Madras Presidency. Even in that regard, the High Court, though
referred to the decision in Mst Jagir Kaur but failed to take note
of the ratio therein. The appellant's ownership and possession of
property in India, including residential property; having bank
accounts in India; being assessed as resident forthe purpose of
Income Tax Act, 1961 have all been brushed aside by the High
Court by mere count of number of days of stay in India. This
Court is unable to endorse this approach.[Paras 23 and 24][980A-E]
Mst Jagir Kaur &Anr. v. Jaswant Singh [1964] 2 SCR
73- referred to.
1.2 In paragraph 21 of the impugned judgment, the High
Court has observed that the spirit of the provisions prescribing
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qualification ought to be respected. With respect, it appears that
the High Court in the first place seems to have missed out the
fundamentals on the spirit of formation of trust and its Scheme of
Administration. As noticed, the trust was established in the year
1926 by the sons of Shri P.S. Govindaswamy Naidu and the trust
was actually named as "M/s. P.S. Govindaswamy and Sons'
Charity". The Scheme of Administration, while envisaging nine
trustees, specifically provided for the four sons of Shri P.S.
Govindaswamy as the founder trustees. Office of founder trustee
has been made a heritable one with the concept of having the
hereditary trustee in the line of each of the founder trustee. Until
01.01.1994, the appellant's father Shri G.N. Venkatapathy
remained a founder trustee after the demise of his father Shri
P.S.G. Narayanaswami Naidu, one of the original founder trustees,
who died in the year 1938. The hereditary trusteeship, in the
spirit of Scheme of Administration, has continued in relation to
the lines of other original founder trustees too as the respondent
Nos. 2, 3 and 4 are respectively representing the branches of
Shri P.S. Venkatapathy, Shri P. Rangaswami Naidu and Shri P.S.
Ganga Naidu. Reverting to the branch of Shri P.S.G.
Narayanaswami Naidu who died in the year 1938 and was
substituted by his son Shri G.N. Venkatapathy, it is noticed that
after the death of Shri G.N. Venkatapathy, his brother Shri V. Rajan
was taken as the founder trustee to represent this branch. As
noticed above, there had been internal disputes, which cropped
up after resignation of Shri V. Rajan and which led to litigations
and appointment of Shri Naren Rajan and later appointment of
Shri V. Rajan again as founder trustee. As already noticed, with
the demise of Shri Naren Rajan on 21.05.2015 and of Shri V. Rajan
on 21.06.2017, it is the appellant alone who remains to be the
male descendant to represent the branch of Shri P.S.G.
Narayanaswami Naidu.When looking at the spirit of the Scheme
of Administration of Trust, it would be a travesty of the Scheme
itself if in the presence of the appellant, the representation of
this branch of the founder trustee is annulled or the position is
shifted to someone else. Of course, this could happen if it is
established beyond doubt that the appellant has incurred one or
more of the disqualifications. In this suit, no other disqualification
has been alleged by the respondents against the appellant except
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his want of residence in Madras Presidency. This suggestion has
been effectively repelled by the appellant by production of cogent
evidence and with specific assertion that he was residing in India
since 2010. When examining the matter from the point of view of
spirit of Scheme of Administration, the concept of representation
of the branch of founder trustee needs to be respected and, in
that regard, claim of the descendant like the appellant cannot be
lightly brushed aside by a mere count ofnumber of days of stay in
India while ignoring all other features and factors showing his
choice of staying in India.[Paras 25 and 25.1][980-E-H; 981-A-F]
1.3 As observed by this Court in Mst Jagir Kaur, ultimately,
the question of residence in every case depends on the facts, but
the word 'reside' usually means something more than a flying
visit or a casual stay. The appellant who has continuously been in
India, apart from holding property and bank accounts in India
and also holding an Aadhaar Card, could least be said to be a
person visiting India casually or as a transit tourist.The High
Court has posed a question that certificates do not disclose that
out of 979 days in seven years, how many days the appellant was
in Madras Presidency? Again, the approach of the High Court
does not commend to us. It has not been shown if the appellant
had not been available in the area in question so as to effectively
participate in the administration and management of the Trust.
Mere holding of Green Card of the United States of America
cannot be treated as decisive of the matter in the present case.The
High Court has made adverse comments on the justified
observations of the Trial Court that in view of the scientific
advancements, the word 'reside' should not be given that meaning
as was understood a century back. With respect, such
observations of the High Court are again, not in conformity with
the principles of construction of a document.[Paras 25.2-27][981F-H; 982-A-C]
1.4 If at all the rule of literal construction is applied literally,
the term in question about residing within "Madras Presidency"
would itself be treated as redundant for the simple reason that
geographically or demographically, there does not exist any
location as of today which could be termed as "Madras
Presidency". Obviously, such an approach would be incorrect and
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the area that was known as "Madras Presidency" at the time of
drafting of the document in the year 1926 and framing of the
Scheme of Administration in the year 1936 would be taken note
of and whatever area is now referable to the said erstwhile
"Madras Presidency" area would be relevant; and the residence
has to be with reference to the said area. The point relevant for
the present purpose is that the expression "Madras Presidency"
is not being construed in its literal sense and is construed with
reference to its present meaning.Taking cue from the aforesaid,
when the verb "reside" is taken up to understand its meaning
and purport with reference to the object of the document, its
present day meaning and connotation cannot be lost sight of. Of
course, if a person has given up his residence and has
permanently settled at some other place, the question may arise
about his fulfilment of the condition but, at the same time, the
expression "resides" cannot be given a literal meaning as if a
person like the plaintiff-appellant having multiple places of
residence would incur disqualification for the purpose of the deed
in question if not permanently located at a particular place.While
not approving the approach of the High Court in this matter,
particularly in relation to the construction of the terms of SOA, a
little furthermay be observed. The words and expressions in the
deeds or statutes are preferably provided their contextual and
contemporary meaning. In this process of construction, the words
and expressions are not viewed as fossil remains; rather they
retain the organic character and do take their meaning from all
the surroundings. For that matter, a particular word like "resides"
could carry multiple different connotations with reference to the
time or period of its interpretation; and connotations may be
different than those understood about 100 years back. When a
particular word or expression in any document is to be operated
and applied, all the relevant characteristics available in praesenti
have to be kept in view for a meaningful and purposeful
construction. Of course, that meaning should not do violence to
the real intent and purpose.The question at hand is of assigning
a logical, contextual and contemporary meaning to a particular
expression. It is one thing to alter the term of a document and
cannot be equated with the process of assigning a purposeful
meaning to a particular expression. In the true rules of
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construction, the words are always assigned the meaning which
stand in tandem with their context, while assuring that the
assigned meaning serves the purpose.The requirements of
physical residence, with the rapid advancement of the means of
communication and transport cannot be ignored particularly when
the purpose of the term 'residence' in document in question is to
ensure participation in the affairs of the trust effectively, as and
when required. The intent of the Trial Court in its observations
had been only this much that in view of the present-day
advancement, literal meaning of residence, by requiring actual
physical presence every day and every moment is not correct.
There is no hesitation in endorsing the views and findings of the
Trial Court. [Paras 27.1-29.1][982-C-H; 983-A-F; 984-A-B]
Directorate of Enforcement v. Deepak Mahajan (1994)
3 SCC 440 : [1994] 1 SCR 445 - referred to.
1.5 Prima facie, the principle of estoppel may not operate
against the contesting respondents. The plaintiff-appellant seeks
to invoke the principle of estoppel essentially with reference to
the fact that after the judgment dated 16.04.2013 in O.S. No. 631
of 2012, he was unanimously chosen as the founder trustee on
18.04.2013. The said decision of the continuing founder trustees
to induct the appellant to represent his branch was essentially
pursuant to the order of the Trial Court but, ultimately the decision
of the Trial Court did not sustain itself and was reversed by the
High Court in its judgment dated 30.06.2014 in A.S. No. 178 of
2013. In that position, the said decision of thefounder trustees to
induct the appellant on 18.04.2013 could not have operated as
estoppel against them.However, prima facie, what is applicable
to the question of estoppel would not directly apply to the question
of res judicata. The entitlement of the rival claimants to the office
of founder trustee representing Shri P.S.G. Narayanaswami Naidu
branch was a matter innate and interwoven with the question as
raised before the High Court in A.S. No. 178 of 2013. The High
Court distinctly recorded in its judgment dated 30.06.2014 that
there was no dispute about qualification of the rival claimants
which included the present appellant in his capacity as 10th
defendant in the said matter. The present contesting respondents
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were indeed parties to the said proceedings and particularly the
Trust was a party thereto and was duly represented by the
Managing Trustee. When the question of qualification or
disqualification could have been raised and was not raised by the
present contesting respondents, it is difficult to say that the
principles of res judicata and at any rate, those of constructive res
judicata in terms of Explanation IV to Section 11 of the Code of
Civil Procedure, 1908 would not apply.However, these aspectsare
not being elaboratedfor the reason that in the present suit, the
plaintiff-appellant has categorically established the fact that he
was indeed eligible and was not suffering from the alleged
disqualification.Viewed from any angle, the judgment of the High
Court remains unsustainable. The Trial Court had rightly analysed
the evidence on record and arrived at a just conclusion in
upholding the claim of the appellant to the office of founder trustee
in the respondent-Trust as the representative of the branch of
Shri P.S.G. Narayanaswami Naidu. Impugned judgment and order
dated 04.03.2021 is set aside; and the judgment and decree of
the Trial Court dated 12.10.2020 are restored. Consequently,
the appointment of respondent No. 10 in the Trust shall stand
annulled and the appellant shall be entitled to hold the office of
founder trustee representing P.S.G. Narayanaswami Naidu branch.
As a necessary consequence of findings and conclusions, the claim
of the applicant of I.A. No. 80383 of 2021 is rendered redundant.
That application also stands rejected.[Paras 32.1-34][984-E-H;
985-A-F]
Yogesh Bhardwaj v. State of U.P. & Ors. (1990) 3 SCC
355 : [1990] 2 SCR 666, Inder Singh Ahluwalia v. Prem
Chand Jain & Ors. 1993 SCC OnLine Del 12; Makhija
Construction & Engg. (P) Ltd. v. Indore Development
Authority & Ors.: (2005) 6 SCC 304-referred to.
Case Law Reference
[1990] 2 SCR 666
referred to
Para 18.3
[1964] 2 SCR 73
referred to
Para 24
[1994] 1 SCR 445
referred to
Para 28
CIVIL APPELLATE JURISDICTION : Civil Appeal No.3791 of
2022.
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From the Judgment and Order dated 04.03.2021 of the High Court
of Judicature at Madras in A.S. No.978 of 2020.
Mrs. V. Mohana, Sr. Adv., Vidyashankar, B. Raghunath, Mrs. N.
C. Kavitha, Mrs. Ayushma Awasthi, Sriram P., Advs. for the Appellant.
V. Giri, M. N. Rao, Gopal Sankaranarayanan, Sr. Advs., Ms.
Suveni, S. Thananjayan, Ms. Promila, Ms. Jaswanthi Anbuselvan, Ms.
Aaina Verma, Anoop Prakash Awasthi, P. R. Ramakrishnan, M. S. Vishnu
Sankar, Biju Raman, I. Abrar Md. Abdulla, B. Karunakaran, Advs. for
the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
Table of Contents*
Preliminary .........................................................................2
Relevant factual matrix and background ........................3
The respondent-Trust and its constituents ..........3
First round of litigation and relevant events ........7
Second round of litigation and relevant events ..11
Third round of litigation & subject-matter before this
Court ................................................................................. 14
Findings of the Trial Court ................................... 19
Findings of the High Court ................................... 22
Other claimants .............................................................. 27
Rival Submissions ............................................................ 28
The appellant's claim rightly accepted by the Trial
Court ................................................................................. 32
The questions of res judicata and estoppel ................... 38
Conclusion ........................................................................ 41
Preliminary
Leave granted.
2. This appeal, by the plaintiff of a suit for declaration and
injunction, is directed against the judgment and order dated 04.03.2021,
as passed by the High Court of Judicature at Madras1 in Appeal Suit
No. 978 of 2020 whereby, the High Court has allowed the appeal filed
by the contesting defendants (respondent Nos. 1 to 8 herein) and has set
1 For short, 'the High Court'.
* Ed. Note : Pagination in the Table of Contents is as per the original judgment.
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aside the judgment and decree dated 12.10.2020, as passed by the
Principal District Judge, Coimbatore2, in Original Suit No. 160 of 2018.
2.1 In the suit aforesaid, the plaintiff-appellant sought the relief of
declaration that he was entitled to be appointed as the founder trustee of
the public trust M/s. P.S. Govindaswamy Naidu & Sons' Charities
(respondent No. 1 herein)3 as per its Scheme of Administration4, for
being the surviving male descendant of the branch represented by his
late father. The claim of plaintiff-appellant was resisted by the contesting
respondents with reference to the fact that he was a Green Card Holder
of the United States of America and was not fulfilling the requirements
of 'residing within the area of Madras Presidency', as envisaged by the
Scheme of Administration. The Trial Court held that the plaintiff-appellant
was indeed a resident of the area in question and was duly qualified to
hold the position of founder trustee of the respondent-Trust. The High
Court, however, took the view opposite with reference to the fact that
the plaintiff-appellant was continuously holding a Green Card and had
stayed in India less than half of the time in the past; and the assertion of
his intent of permanently residing in India was contradicted by the
evidence on record. Therefore, the High Court set aside the judgment
and decree of the Trial Court.
3. Though a seemingly straightforward question as regards
construction of the relevant terms of SOA governing the respondentTrust and their application to the facts of present case (more particularly
regarding abode/residence of plaintiff-appellant) is involved in the matter
but, the position of founder trusteeship in the respondent-Trust has
undergone various rounds of litigation and disputes, some of which have
their own bearing in the present matter. Thus, a somewhat lengthy
reference to the background aspects would be necessary.
Relevant factual matrix and background
The respondent-Trust and its constituents
4. In the first place, worthwhile it would be to take into
comprehension the salient features related with the respondent-Trust
and its constituents.
2 For short, 'the Trial Court'.
3 Hereinafter also referred to as 'the Trust' / 'the respondent-Trust'.
4 For short, 'SOA'.
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4.1. The respondent No. 1 - M/s P.S. Govindaswamy Naidu &
Sons' Charities - is the Trust wherein the appellant has staked the claim
to be recognised as one of the founder trustees.
4.2. The respondent-Trust was initially administered as per the
trust deed registered on 25.01.1926, which was executed by four persons
namely, (1) Shri P.S.G. Venkataswami Naidu, (2) Shri P.S.G. Rangaswami
Naidu, (3) Shri P.S.G. Ganga Naidu, and (4) Shri P.S.G. Narayanaswami
Naidu. For the better and efficient administration, the general body of
the Trust passed a resolution on 26.11.1934 to take legal opinion and
followed it up with a request to the Principal Subordinate Judge,
Coimbatore in Original Suit No. 145 of 1935 to frame a Scheme of
Administration. The Principal Subordinate Judge, Coimbatore, by his order
dated 29.02.1936, in supersession of the earlier Scheme, provided for a
comprehensive Scheme of Administration of the respondent-Trust. This
Scheme, in its Chapter IV under the title "THE BOARD OF
TRUSTEES", provided that there shall be a Board of Trustees consisting
of 9 members out of which, the above-mentioned four persons were
recognised as 'Founder Trustees' while the rest were referred to as
'Elected Trustees'. It was also provided that one of the founder trustees
shall be the 'Managing Trustee'. It was further provided that a founder
trustee shall be entitled to hold office for life. The other provisions as
regards term of office of elected trustees are not relevant for the present
purpose.
4.3. The relevant provision in SOA, which forms the subject-matter
of debate in the present case, is contained in the opening part of Clause
(B) of Chapter IV, as regards qualification for trusteeship, and reads as
under: -
"QUALIFICATION AND DISQUALIFICATION FOR
TRUSTEESHIP (A) QUALIFICATIONS FOR THE
TRUSTEESHIP
No person shall be elected or hold office as trustee unless,
(i) he is a Hindu
(ii) he resides in the Madras Presidency and
(iii) he is not less than 21 years age"
4.4. The provisions relating to vacancies and filling up of vacancies,
particularly as regards founder trustees, could be noticed in Clause (C)
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and Clause (D) (1) of SOA, which may also be reproduced for ready
reference as under: -
"(C)VACANCIES:
1) Whenever a vacancy arises, the managing Trustee or any other
Trustee on becoming aware of the fact of such vacancy shall
bring it to the notice of the Board at the next monthly meeting of
the board. The vacancy shall be filled up within two months
thereafter.
2. Whenever a Trustee shall during the continuance of his office
cease to possess the qualifications necessary for holding the office
of Trustee or becomes disqualified to hold the office of Trustee,
the managing trustee or any other Trustee on becoming aware of
the fact shall bring it to the notice of the Board and the Board
after notice to the Trustee concerned and after such enquiry as
may be necessary declare that a vacancy has occurred stating
the grounds of such declaration and thereupon elect a Trustee in
his place under the provisions herein contained.
3. Whenever a Trustee is guilty of breach of trust of gross neglect
and breach of duty, the Board shall have power after due and
proper notice of the charge to the Trustee concerned and after
giving him an opportunity to answer the charges against him
investigate in to the matter and after enquiry record its findings on
the said charges giving reasons for its conclusions. If it finds that
by a resolution passed by a majority of not less than six of whom
two will be Founder trustees, he has been guilty of breach of trust
or gross neglect and breach of duty involving loss or damage to
the charges, then on such a finding being recorded, the Trustee
concerned shall vacate and shall be deemed to have vacated his
office as trustee. The Trustee to be removed will leave at once.
Neither the Trust nor the Board nor any of the Trustees shall be
liable to any trustee or trustees so in respect of acts done bonafide
in pursuance of these provisions and any person elected to the
office of the Trustee shall be deemed to contract with the trust
and with each of his Co-trustees to waive all rights of action in
respect of acts done bonafide by the Board or any trustee in this
behalf.
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4. The office of a Trustee shall become vacant by resignation on
the part of Trustee and notification of the same to the Board or to
the Managing Trustee.
5. Any member of the board who fails to attend five consecutive
meetings shall cease to be a member of it but maybe reappointed
to the office in accordance with provisions herein contained.
(D) FILLING UP OF VACANCIES:
(1) FOUNDER TRUSTEES
(a) Whenever any vacancy arises in the office of a Founder
Trustee, an adult male descendant in the male line of the original
founder Trustee if existing and competent according to the rules
herein contained, shall be eligible for appointment to that office.
(b) If there be only one in such line and he is willing to act he shall
be appointed as Trustee by the Board of Trustees. If such person,
however, could not be appointed thereto by reason of his not having
the necessary qualifications for Trustee or by reason of his being
disqualified for Trusteeship then the remaining Founder. Trustees
shall proceed to fill up the vacancy in the same manner as if such
person did not exist; but the person so appointed to the office shall
hold office only till the disability ceases and on such disability
ceasing the person entitled to succeed as herein before mentioned
shall be appointed to the place of trustee.
(c) If there are more than one in such line competent to hold
office, according to the provisions herein contained, then they shall
choose from among themselves and the person so selected shall
be appointed to the place. If there is disagreement among them
then the opinion of the majority shall prevail. If there is no such
majority concurring in such selection of one among them or if
they do not select one from among themselves within six weeks
of such vacancy then the remaining Founder trustees shall either
unanimously or by a majority select one from such competitors
and the person so selected shall be appointed to fill the vacancy.
A person who is competent to hold office of a Founder Trustee
who has however expressed his unwillingness to accept the office
shall be precluded from putting forward his rights again but his
right to exercise his vote in the selection of a founder Trustee in
his line shall remain unaffected.
V. PRAKASH @ G.N.V. PRAKASH v. M/s. P.S. GOVINDASWAMY
NAIDU & SONS' CHARITIES [DINESH MAHESHWARI, J.]
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(d) If there be no competent person in such line or if the only
person eligible for appointment expresses his unwillingness to
accept the office the office shall be filled up by the remaining
founder Trustees by selecting one competent and willing from the
other lines. The person so selected shall be appointed as Trustee
and he shall be subject to the provisions herein contained hold
office for life.
(e) If at any time there shall be a person in the line of any of the
Founder Trustees competent to hold office under these rules his
rights of succession shall belong to him and he shall be eligible for
appointment to the office of a Founder Trustee notwithstanding
that by reason of the absence of a person competent and willing
in that line the remaining Founder Trustee selected a person from
the other lines."
5. Pursuant to the aforesaid Scheme of Administration, the Trust
was conducting its affairs but, in the year 1938, one of the founder trustees
Shri P.S.G. Narayanaswami Naidu expired, leaving behind two sons,
namely, Shri G. N. Venkatapathy and Shri V. Rajan.
5.1. After the demise of Shri P.S.G. Narayanaswami Naidu, his
son Shri G. N. Venkatapathy (father of the appellant) held the position of
founder trustee in the respondent-Trust until his demise on 01.01.1994.
Thereafter, his brother Shri V. Rajan became the founder trustee,
representing the branch of Shri P.S.G. Narayanaswami Naidu and held
the position as such until 25.04.2012 when he submitted a letter of
resignation and nominated his son Shri Naren Rajan to be appointed as a
founder trustee. This act of Shri V. Rajan triggered the dispute and it
was alleged that as a consequence of resignation, he had lost his right to
nominate or vote in the selection process of the hereditary trustee of the
branch represented by him. This had been the genesis of three rounds of
litigation revolving around the office of founder trustee representing the
branch of Shri P.S.G. Narayanaswami Naidu.
First round of litigation and relevant events
6. The dispute as to the rights of Shri V. Rajan to nominate or
vote after his resignation from the office of founder trustee became the
subject matter in O.S. No. 631 of 2012 filed by him and his son Shri
Naren Rajan against the Trust, the trustees and the present appellant
Shri V. Prakash @ G.N.V. Prakash, who was also a probable candidate
to represent the family of Shri P.S.G. Narayanaswami Naidu as founder
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trustee, being the son of the said Shri G.N. Venkatapathy. In the plaint,
an assertion was made that the present appellant (10th defendant in that
suit) was not qualified to hold the office of founder trustee but this assertion
was not taken forward by the plaintiffs. Hence, the Trial Court went on
to decide the other issues involved in the matter, particularly as regards
the voting right of Shri V. Rajan after his resignation.
6.1. The Trial Court, by its judgment and decree dated 16.04.2013,
held that Shri V. Rajan had lost his right to vote and remaining founder
trustees should make the selection between Shri Naren Rajan and the
appellant Shri V. Prakash @ G.N.V. Prakash. Thereafter, on 18.04.2013,
the founder trustees unanimously chose the appellant for the said office
of founder trustee representing the branch of Shri P.S.G. Narayanaswami
Naidu. Accordingly, the appellant continued to hold the office of founder
trustee and attended the meetings of the Trust.
6.2. However, in appeal, being A.S. No. 178 of 2013, the High
Court, by its judgment and order dated 30.06.2014, held that though Shri
V. Rajan had lost his right to contest for the office of founder trustee, but
his right to vote remained intact and once he had such right to vote,
appointment of Shri Naren Rajan with his vote cannot be denied. During
the course of consideration of the appeal, the High Court also took note
of the fact that there was no dispute on point that both Shri Naren Rajan
and Shri V. Prakash (present appellant) were qualified to be considered
for the post of founder trustee and it was also admitted that they did not
incur any disqualification in that regard. In view of its findings, the High
Court issued mandatory injunction to the defendants 1 to 9 of that suit to
appoint 2nd plaintiff, Shri Naren Rajan, as one of the founder trustees.
6.2.1. A few aspects related with the stand of parties qua the
present appellant (10th defendant in the suit in question) could be noticed
in necessary details. The High Court formulated the points for
determination in the following terms: -
"23. On the basis of the above submissions, the following points
for consideration arise in this appeal suit:-
1. Whether the first plaintiff lost his competency and became
ineligible to elect his successor by reason of his resignation as
held by the trial court?
2. Whether the declaratory relief sought for by the plaintiffs
that the Board Meeting of the Trust held on 25.04.2012 and
30.07.2012 are illegal and not binding on the plaintiffs?
V. PRAKASH @ G.N.V. PRAKASH v. M/s. P.S. GOVINDASWAMY
NAIDU & SONS' CHARITIES [DINESH MAHESHWARI, J.]
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3. Whether the plaintiffs are entitled to the relief of mandatory
injunction directing the defendants 1 to 9 to appoint the 2nd plaintiff
as one of the trustees representing the branch of PSG
Narayanasamy Naidu?
4. Whether the defendants 1 to 9 are to be restrained from
appointing the 10th defendant as representing the branch of PSG
Narayanasamy Naidu?
5. Whether the defendants 1 to 9 are injected from taking policy
decision in the ensuing board meeting?"
6.2.2. The aforesaid point No. 4, as regards restraining the other
defendants from appointing the present appellant to represent the branch
of Shri P.S.G. Narayanaswami Naidu, had its co-relation with the basic
questions involved in point Nos. 1 and 3 i.e., right of the 1st plaintiff Shri
V. Rajan to vote for selection of founder trustee after resigning and the
mandate for the other defendants to appoint the 2nd plaintiff Shri Naren
Rajan as the founder trustee. In that context, the fundamental requirement
was of the competence and qualification of the two rival claimants to
the said office of founder trustee i.e., the 2nd plaintiff Shri Naren Rajan
and the present appellant Shri V. Prakash; and in that regard, it had been
the specific case of all the parties that both of them were qualified to be
considered for the said office. This aspect of the matter was repeatedly
taken note of by the High Court, as could be noticed from paragraphs 30
and 32 of the said judgment, which read as under: -
"30. As regard the qualification of the plaintiffs and the 10th
defendant are concerned, it is admitted that both the plaintiffs and
the 10th defendant are qualified to be considered for the post of
founder Trustees. It is also admitted that they did not incur any
disqualification from holding that post. According to the learned
Senior counsel appearing for the respondents 1 to 3 and 10 and as
per the findings of the learned trial Judge, though the first plaintiff
was qualified, after having submitted his resignation, he suffered
disqualification and therefore, he was not competent to contest to
the office of the founder Trustee or in other-words, he lost his
competency by reason of his resignation to elect the founder
Trustee and only those persons, who are competent to hold the
post are entitled to choose one from among themselves to elect or
select a founder Trustee as per Clause [c] of Chapter IV(D) (1)
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and therefore, excluding the first plaintiff, who lost competency,
the persons who are eligible to be considered to the office of the
founder Trustee representing PSG Narayanasamy Naidu are the
2nd plaintiff and the 10th defendant and therefore, the trial court
was right in directing the other Trustees, namely the plaintiffs 2 to
4 to select one among them and as there was consensus among
them.
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32. According to me, the learned trial Judge as well as the learned
Senior counsels appearing for the respondents 1 to 3 and 10 have
not properly understood the difference between the qualifications
prescribed as per Chapter IV(B) and the process of filling up the
vacancy as stated in Chapter IV(D). As stated supra, there is no
dispute that the plaintiffs and the 10th defendant are qualified to
be considered for the post of founder Trustees and the question to
be considered is whether the first plaintiff incurred disqualification
by reason of the resignation and thereby, lost his competency to
hold the office in future."
6.2.3. In regard to the core question as to the competence of Shri
V. Rajan to be a member of electoral college, the High Court, of course,
returned the finding that he was competent and his only disqualification
was of contesting for the office of founder trustee after having
relinquished the same. Thus, the High Court put its seal of approval on
the selection of 2nd plaintiff Shri Naren Rajan by the majority comprising
of the vote of 1st plaintiff and consequently, injuncted the other defendants
from appointing the present appellant (10th defendant in said suit) to
represent the branch of Shri P.S.G. Narayanaswami Naidu.
6.3. The appellant attempted to question the judgment of the High
Court before this Court but, the petition seeking special leave to appeal,
being SLP(C) No. 26503 of 2014, was dismissed by this Court on
26.09.2014.
6.4. Thus, the said Shri Naren Rajan came to be appointed as
founder trustee, representing P.S.G. Narayanaswami Naidu branch of
the family.
6.5. Unfortunately, on 21.05.2015, the said Shri Naren Rajan met
with his untimely death due to a road accident.
V. PRAKASH @ G.N.V. PRAKASH v. M/s. P.S. GOVINDASWAMY
NAIDU & SONS' CHARITIES [DINESH MAHESHWARI, J.]
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Second round of litigation and relevant events
7. After the death of Naren Rajan on 21.05.2015, vacancy again
arose and the appellant V. Prakash filed a suit, being O.S. No. 1225 of
2015 before the District Munsif Court, Coimbatore, for recognizing him
as a founder trustee for the reason that the other surviving male member
Shri V. Rajan was prohibited to hold the office of founder trustee, as
held in the earlier round of litigation.
8. While the said suit filed by the appellant was pending, a separate
suit in O.S. No. 1952 of 2015, filed by Shri G. Rangaswamy (respondent
No. 9 herein) seeking injunction against the Trust in the matter of filling
up of vacancies. An order granting injunction therein and very
maintainability of this suit were questioned by the contesting trustees
before the High Court in Civil Revision Petition No. 665 of 2010 and
they sought rejection of the plaint of O.S. No. 1952 of 2015. Therein,
appellant filed M.P. No. 3 of 2015 and the said Shri V. Rajan filed M.P.
No. 4 of 2015 to get themselves impleaded.
8.1. The said revision petition and the interlocutory applications
filed therein were considered together by the High Court in its order
dated 26.06.2015. This order carries several interesting features, as
noticed infra.
8.2. The said revision petition was filed by the present respondentTrust through its managing trustee Shri L. Gopalakrishnan, who himself
joined as petitioner No. 2 and was also joined by another founder trustee
Shri G.R. Karthikeyan and by one elected trustee Shri D.
Lakshminarayanasamy5.
8.3. At the outset, it was submitted on behalf of the plaintiff-Shri
G. Rangaswamy (respondent No. 9 herein) before the High Court that
he wanted to withdraw the suit as filed and, therefore, the civil revision
petition was unnecessary. However, these submissions were opposed
by the learned counsel appearing for the revisionists (contesting
respondents herein) as also by learned counsel appearing for the said
Shri V. Rajan.