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TMI Blog1927 (5) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibit I is invalid but that Exhibit II is valid and binding and that both by virtue of Exhibit II and by virtue of certain proceedings in the Pondicherry Court the appointment of the 1st defendant is valid and is not defeated by the subsequent wills, Exhibits H and H-l, in favour of the plaintiff. Hence the appeal. 3. There is no dispute about the relationship as set out in the geneological table annexed to the plaint from which it appears that Pichya Mudaliar the propositus had two sons, Thoppai Muthia Mudaliar and Thoppai Sabapathi Mudaliar, that Thoppai Muthia Mudaliar had three sons, Ananda Thandavaroya Mudaliar, Ayyasami Mudaliar and Periyasami Mudaliar; that Ananda Thandavaroya Mudaliar had three sons, Murugayya Mudaliar, Velayutha Mudaliar and Nataraja Mudaliar, and that Velayutha Mudaliar's son is Rathnasabapathi Mudaliar, the 1st defendant. 4. The three charities were founded under the three deeds, Exhibits A, B and C. The first Exhibit A is dated the 15th of January, 1862, and is executed by Thoppai Muthia Mudaliar and Thoppai Sabapathi Mudaliar and his three sons. It refers to what is known as the Chidambaram charities. The charities were all to be performed in Br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayya Mudaliar to administer the dharmam which he has been conducting, it goes on to state: Since in order that the said dharmams may be conducted regularly and for ever, it is absolutely necessary that they should be conducted by the descendants of Muthia Mudaliar who instituted the dharmams originally the following agreement has been entered into by us: For the reasons aforesaid the said Murugayya Mudaliar appoints his younger brother's son, Rathnasabapathi Mudaliar, for conducting the said dharmam after his (Murugayya Mudaliar's) lifetime. Further he appoints the said Rathnasabapathi Mudaliar to administer the dharmam relating to the chatram also which the said Ananda Thandavaroya Mudaliar has constructed in Alapakkam in Cuddalore taluk in British territory. 7. Exhibit II which is dated the 6th of March, 1914 is executed by Murugayya Mudaliar in favour of Rathnasapathy Mudaliar, It begins as follows: As some particulars have not been recited in detail in the agreement in the matter of the administration of charities which has already been executed on the 29th June, 1913, as between these persons, the present agreement in the matter of the administration of charit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question as to the right of the defendant to get possession of the documents relating to the trust. The first court held that Exhibit II did not empower Murugayya Mudaliar to appoint the 1st defendant as trustee so as to give a present right for the recovery of deeds and property but the appellate court reversed the decision. Murugayya Mudaliar died during the pendency of the proceedings in appeal and the present plaiintiff was brought on record. The Subordinate Judge finds Exhibit II to be genuine both on the evidence and because of the decision of the Pondicherry Court. 9. It has been argued by the appellant that it is improbable that Exhibit II would have been executed by Murugayya Mudaliar as it appears there were proceedings in the French Court, for partition which resulted in seals being put on the house of Murugayya Mudaliar, that the feelings between the parties were strained, that the deed of partition executed shortly before contains no indication that Murugayya Mudaliar was going to divest himself of the management, that it is extremely unlikely that Exhibit II would have been executed shortly after the partition, that Exhibit II is not registered in any form that req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to persons who are really entitled to sue the defendants and get possession if they establish their claim. 13. As regards the other two charities, two questions arise, the first as to the validity of Exhibits I and II and the second as to the force of the judgment of the Pondicherry Court. I have already referred to the suit filed in the Pondicherry Court by the 1st defendant against Murugayya Mudaliar. As regards Exhibit I, the Subordinate Judge finds that it is invalid as it was obtained under coercion and undue influence. 14. The facts which led up to Exhibit I and which are not disputed before us are shortly these. Prior to the execution of Exhibit I, Murugayya Mudaliar and the 1st defendant were members of an undivided family. Disputes arose owing to Murugayya Mudaliar wanting to marry his daughter to the plaintiff and the 1st defendant wanted to prevent the marriage and get a partition of the properties. The 1st defendant filed a suit in Pondicherry claiming a partition and during the absence of Murugayya Mudaliar in Chidambaram he got the house of Murugayya Mudaliar sealed. Then there was some mediation and Exhibit I was executed the day before the seals were removed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it II, was uninfluenced by any considerations except the good of the trust. I need only refer to 23 Hals., Section 53, In re Wright : He gan v. Bloor LR (1920) 1 Ch. 108 , Zopharm v. Duke of Portland (1870) LR 5 Ch. A and Humphrey v. Dmies (1859) 28 LJ Ch. 406. Exhibit II purports to be an immediate transfer of the right to the office, and, as I have pointed out, the power to advise gives no effective control to Murugayya as the power is merely advisory. 17. It is clear from the deed constituting the Mailam and Chidambaram trusts that the devolution of trusteeship is not to be hereditary in the line of the founders but by successive appointments and so no question arises as to the transfer by one trustee to the next in the line of succession. 18. It has been held that a trustee is not entitled to transfer such a trust in his lifetime. In Narayana v. Ranga ILR (1891) M 183 : 1891 2 MLJ 19 , Muthuswami Aiyar and Shephard, JJ., held that the transfer of a religious office was invalid except possibly in the case of transferees in succession. The learned Judges observe: According to general principles, a religious office cannot, prima facie, be made the subject of alienation. The su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hor of the trust is to authorise the appointment of a successor and not to authorise an abdication. If owing to illness, old age, absence from India or other cause the trustee is not able to act, the obvious remedy is by application to court to appoint a trustee. Such a power cannot be arrogated by the trustee. Otherwise a trustee can before his death appoint another person, under the plea that he is unable or unwilling to perform his duties. There is nothing except the recital in the deed of appointment that the trustee was in apprehension of death or was physically unable to carry out the trust. Cases have been referred to where in English Law a power of appointment if executed by a deed inter vivos is irrevocable unless the deed itself reserves the power of revocation. In the case of religious trusts, where the deed constituting the trust clearly expresses an intention that the appointment should be made only at the testator's decease, the trustee cannot give the go by to it by executing it without putting a revocable clause. Though the deed inter vivos to take effect after his death may satisfy the requirements, such a deed must always be subject to the controlling clause i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation thereto. This results from the very nature of the case; for no other court can have a competent jurisdiction to enquire into or settle such right or title. By the general consent of nations therefore in cases of immovables, the judgment of the forum rei sitae is held absolutely conclusive .... On the other hand, a judgment in any foreign country, touching such immovables, will be' held of no obligation. 22. In Boyse v. Colclough (1854) 1 K & J 124 : 69 ER 396, it was held that Irish courts had no jurisdiction over Immovable properties in England and that any declaration as to the validity or invalidity of any will by Courts in Ireland cannot so far as it relates to lands in England be treated as a bar to a suit. 23. Dicey in his Conflict of Laws thus states the rule as regards Immovable property as follows: All rights over, or in relation to, an Immovable (land) are (subject to the exceptions thereinafter mentioned) governed by the law of the country where the Immovable is situate ex situs. It is unnecessary to consider the exceptions as they do not touch the present case. 24. The question as to the jurisdiction of foreign courts to deal with the subject matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from the Chidambaram charity. If it were possible to separate the charities in so far as they relate to properties in British India from the charities in Pondicherry and to give effect to the deed of trust by constituting plaintiff as trustee of the portion of the property situate in British India, I would do so, but that is, having regard to the terms of the trust which make no separate appropriation of the incomes of the trust property to the particular charities named, obviously impossible. I am not prepared to hold that the decision of the Pondicherry Court is not a sufficient ground for our upholding the claim of the 1st defendant. 26. In the result I allow the appeal in so far as it relates to what is described in the plaint as Chidambaram charity and declare that the plaintiff is the person entitled to be the trustee and to be in possession and management of the properties appertaining to that trust, and the defendants or such of them as are in possession will deliver the property to the plaintiff. 27. As regards the Alapakkam and Mailam charities the plaintiff's suit will be dismissed. 28. As regards costs as neither party has succeeded in all his contentions, I th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of succession provided thereby but under and by virtue of appointment by Murugiah. It has been argued that Murugiah had acquired by prescription a right to appoint his successor, because in and by the will of Ayyasami he gave such a power of appointment. It is difficult to see how Ayyasami was entitled, contrary to the terms of the deed of trust, to grant such power or prescribe a different line or mode of succession. There is no evidence worth the name or any materials on which such acquisition of power contrary to or different from the original deed of trust can be inferred. The bare fact is that Murugiah purported to appoint a successor and from that alone the inference of a completed acquisition of right by prescription cannot be held to be proper. It must be remembered that Murugiah was in the line of male heirs of Ayyasami and by the mere fact of his having excluded his brothers from the office of trusteeship he could be regarded only as having prescribed for sole trusteeship. If the acquisition, by prescription, of such right to appoint, should be recognised on such slender material, nothing would be easier than to frustrate the provisions in the deeds of endowments and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint of time the undue influence should be regarded as having continued or ceased. But having regard to the fact that the marriage was over and that the partition between the parties had also been completed and carried out, there is no reason whatever to suppose that the undue influence which was brought to bear when Exhibit 1 was executed, lasted or continued until the execution of Exhibit II. On my finding that even if the burden of proof should be held to be on the 1st defendant affirmatively to establish that the undue influence, which was operative when Exhibit I was executed, must have ceased some considerable time before the execution of Exhibit II, it seems to me unnecessary to refer to or discuss the cases cited on the question of burden of proof. 33. At one stage of the case I was impressed by the argument regarding the genuineness of Exhibit II by reason of the absence of any reference to it in Exhibit K and other documents. But it has been pointed out that Exhibit K was subsequent to the 1st defendant's suit in the French Court and there can be no doubt that after the institution of that suit by the 1st defendant Murugiah must have made up his mind to impeach Exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Procedure Code, it seems to me impossible to accept the contention of the learned vakil for the appellant in the matter. 36. Then Mr. Bhashyam argued that the rule of res judicata set out in Section 13 must be construed as referring only to the actual decree passed by the court and not extending to the grounds of decision or to the issues decided. His contention was that when a foreign judgment directs the payment of money by the defendant to the plaintiff it is in the nature of a debt and the judgment itself is only proof of the debt and no more. In this matter the difference may be considered between the terms of Section 11 and Section 13, Civil Procedure Code. Section 11 refers to the decision with regard to the issue also. Section 13 speaks only of the matter directly adjudicated upon by the foreign judgment. Having regard to the language of Section 13, it seems to me that while Mr. Bhashyam's contention that refers only to a decree cannot be accepted, still at the same time it cannot be said that every issue decided by the foreign Court is binding upon the British Indian Court. Every issue, albeit necessary for the decision of the matter in dispute cannot be regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contention on behalf of the appellant that the suit in the French Court was one for the recovery of Immovable property. Taking the suit as a whole it seems to me that it cannot properly be described in legal language as a suit for property or as one for a declaration of title to property but the only description of the suit which can be regarded as satisfactory is to regard it as one for the office of trusteeship. 39. What then is the law applicable to the recovery of the office of trusteeship? Whatever might have been the state of things in the world in former times, there can be no question whatever, that having regard to the increasing international amity and intercourse, many trusts may come to be constituted the properties relating to which may happen to be situated in different sovereignties. It is not impossible to imagine in these days of growing internationalism a person constituting a trust to which are endowed properties sittute in France, England, America and elsewhere. If the strict rule of the lex situs should be applied, it would follow that in regard to the trusteeship of the trust, different Courts might come to hold differently having regard to the law appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t action, and after such submission it is impossible that we could hold that a French Court was not a Court of competent jurisdiction. 43. There can be no doubt that, whether right or wrong, the decision of the French Court was a decision on the merits, and there can also be little doubt that the matter directly adjudicated upon by the French Court was the right of the first defendant to hold the very office of trusteeship. 44. It therefore follows that if the French territory could be regarded as the domicile of the Chidambaram and Mylam trusts, the decision of the French Court should be regarded as a decision by a Court of competent jurisdiction. 45. With regard to Chidambaram, the position is this. The whole of the property dedicated to the trust is situate in British India and all the trusts are also to be performed in British India. No doubt the trust may be regarded in a manner as made in French territory and the trustees are also French subjects. But in the case of such a trust on the reason of the thing the decision should, it seems to me, be that having regard to the entire trust property being in British India and the performance of the trust being also here, the trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed primarily on the provisions of the trust deed and in the second place on the office of the trusteeship being regarded in law as res extra commercium and any transfer therefore of the office as being opposed to public policy. The proper view to take would be, having regard to all the terms of Ex. II. that the appointer did really intend the appointment to take full effect only after his death and that that was the reason why while he contemplated the appointee taking charge of and looking after the charities at once he should do so only under the supervision of the appointer. 50. In Ex. A the deed of trust relating to Chidambaram charities the provision is that "after the said Ayyasami Mudaliar the persons appointed by him shall conduct the aforesaid charities". In Ex. II Murugiah the appointer refers to the fact that he is advanced in age and the implication is necessarily that he is making the appointment because he is advanced in age and unable himself to look after properly the management of the charities. Though the document would in terms seem to constitute an immediate transfer of the office still, it is significant that the appointer reserves to himself rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant that under Exhibit D Murugiah should himself at the time of his death appoint a person to administer the dharmams. There are no such limitations as to the time of appointment in the original deed of trust Exhibit A. It is therefore very doubtful whether it is open to one trustee appointing a successor under the power of appointment to seek to lay further limitations on the exercise of the power. No cases have been cited and no legal principle was relied upon in support of any such contention. But even assuming that the limitation would be valid, it cannot be said that the expression "at the time of his death" means actually at the exact moment of death, but could be regarded merely as indicating that the appointment should be made having regard to all the circumstances at the end of his life, or at the time when there is reasonable apprehension of early termination of life. It has been argued for the respondents that the power of appointment once exercised the appointment cannot be revoked, and for this purpose some decisions in English cases were cited and relied upon. On an examination, all the cases turned out to be cases merely of the exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. There can be no doubt in this case that there has been a revocation of the appointment. It cannot also be said that such a revocation was made mala fide because it cannot be said that a trustee who sees the appointee rushing to grab the rights in the manner that the first defendant did, was wrongly regarded by the appointer as unfit. In any case that Murugiah acted really bona fide in the interests of the trust is amply borne by his seeking thereafter to appoint only some member of the family who would accept the office undertaking to manage the charities and it was only when he failed in his attempts to get a member of his own family to take up the management he appointed finally the plaintiff, his son-in-law. 54. I therefore agree in the conclusion that in respect of the Chidambaram charities there has been a valid appointment of the plaintiff by Murugiah and that the 1st defendant had no such right at the time of the appointment of the plaintiff as would prevent the appointment of the plaintiff from taking effect. 55. As regards what are called the Mylam charities they are called so because the suit is instituted in a British Indian Court. It is clear that all the items of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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