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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 ..... n that Exhibit 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 char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for dharmam and that his son Ayyasami Mudaliar conducted the dharmam and appointed the executant Murugayya 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 adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uineness of the document and two experts were examined. Murugayya Mudaliar did not let in any evidence and remained ex parte when this question was tried and the French Court found Exhibit II to be genuine. He then appeared and raised the 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 befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rugayya Mudaliar's sons. I do not think that having regard to the present suit which is one in ejectment any relief can be given to the plaintiff unless he proves his own title. The infirmity of the 1st defendant is no ground for giving any relief to the plaintiff. It will always be 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment where, on the face of it, it states that it was executed to supply certain omissions in Exhibit I. But even if it is taken to be a fresh appointment, the onus is heavily on the 1st defendant to show that on the date on which Exhibit II was executed, the influences which led to the creation of Exhibit I were entirely absent and that Exhibit 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tee at the time of his death , there should, to make any appointment valid, where it is by deed inter vivos to take effect at once, be proof that there were circumstances showing that the person making the appointment had a reasonable apprehension of death and it is always subject to the condition that if the trustee making the appointment recovers the transfer is not to operate. The obvious intention of the author 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Immovable property every attempt of any foreign tribunal to found a jurisdiction over it must, from the very nature of the case, be utterly nugatory, and its decree must be for ever incapable of execution in rem. In Article 591, the law is thus summarised: If the matter in controversy is land, or other Immovable property, the judgment pronounced in the forum rei sitae is held to be of universal obligation, as to all the matters of right and title which it professes to decide 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicherry or to appoint two trustees, for the courts in Pondicherry would be bound by their own decision and would not recognise another trustee appointed in British India to perform the trusts in so far as they are in Pondicherry. This is not a case where it can be said that the Pondicherry Court had no jurisdiction to decide the question in controversy in so far as it related to the performance of the major portion of the trust or the right to be in possession and management of the properties, as the trust property is situate in Pondicherry. This case is therefore clearly distinguishable 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teeship of what are called the Alapakkam charities may easily be disposed of. As. the plaintiff claims on the basis of an appointment by Murugiah Mudaliar, the question arises whether Murugiah had himself any such power of appointment. Exhibit C is the instrument of trust relating to the Alapakkam charities. The said deed is purported to be executed in favour of Ayyasami Mudaliar, the trustee appointed therein, and the provision in it for succession to the office of trusteeship is.: that the said dharmam shall after the lifetime of yourself be administered by your heirs. It must be observed that the plaintiff does not claim under the original deed of trust or the scheme 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supervision over the management of the charities during the lifetime of Murugiah. The learned vakil for the appellant argued strenuously and at great length that, having regard to the finding that Exhibit I was brought into existence by undue influence, the burden of proving that the appointment under Exhibit II was at a time when the undue influence had ceased was heavily on the defendant. The determination of the question of burden of proof in such, cases depends largely on the circumstances and the facts of each particular case. The occasion for the exercise of undue influence, the nature of the influence and several other matters would have to be taken into consideration in determining whether at a subsequent period or point 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the decision of the Allahabad High Court referred was one for a declaration that a certain issue was res judicata in a foreign Court. For such a declaration no suit was obviously sustainable. I am therefore unable to regard the mere fact of the confirmation by their Lordships of the Judicial Committee of the decision in the Allahabad case as tantamount to an approval by their Lordships of every expression of opinion by the learned Judges. of the Allahabad High Court. 35. After all the case in Louis Castrique v. William Imrie (1869) LR 4 HL 414 was not a case by the plaintiff on a foreign judgment and the defendant was held entitled to non-suit the plaintiff on the basis of the foreign judgment. Having regard to the very clear terms of Section 13, Civil 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 direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, (2) whether it was a judgment on the merits, and (3) whether that was the matter directly adjudicated upon by the French Court. The learned vakil for the appellant argued that the French Court was not a Court of competent jurisdiction at any rate in respect of all the Immovable property relating to the trust situate in British India. There can be no doubt that the jurisdiction referred to in Section 13 is not local or municipal jurisdiction under the Civil Procedure Code but jurisdiction according to the principles of private international law. There can also be no doubt that under the rules of private international law if the action should be regarded as one relating to Immovable property the law applicable is the law of the country in which the land is situate. But I am unable to accede to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are to be performed, the place where the trust property is situate and so on. 41. The expression therefore in Section 13 namely the Court of competent jurisdiction should, for purposes of actions relating to the recovery of the office of trusteeship, be held to refer to Courts of the country which have jurisdiction in what may be called the domicile of the trust. 42. The suit in the French Court by the first defendant cannot properly be regarded as a real action but only as a personal action for a declaration of rights and the recovery of the office. The ' Immovable property such as it may be follows the office wherever situate. The plaintiff in the present action as the ultimate defendant in the French suit was a domiciled French subject and submitted himself to the jurisdiction of the French Court in that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld seem to be an instrument by which the appointment made under Ex. I was merely confirmed, but in substance it is not by any means merely such an instrument. By Ex. I the appointment of the 1st defendant was to take effect after the lifetime of the appointer. Under Ex. I it would seem that the appointment was contemplated to take I effect immediately even though the appointer reserved for himself certain rights of supervision over the management. The operative portion of Ex. II clearly includes and involves a fresh appointment by force or virtue of the instrument itself. Therefore any infirmity attaching to Ex. I cannot be regarded as continuing to attach to Ex. II. If it were necessary I should have been prepared to hold that there is nothing invalid about the appointment under Ex. II even though it may be regarded as amounting to a transfer of trusteeship. The principle on which such a transfer of trusteeship is forbidden by law is based 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded as opposed to public policy. There is nothing in public policy which requires that a man who can appoint his successor after his lifetime may not so appoint during his lifetime. It depends really on the provisions of the instrument of trust. I am satisfied that it was a bona fide exercise of the power. It has been held in many cases that even alienations of offices to persons next in the order of succession may be regarded as not opposed to public policy. 53. Applying a similar principle to this case I do not see what there is opposed to public policy in a trustee, who can appoint his successor after his death, appointing one there and then to look after the office because he the appointer has become old and incapable of looking after the management properly. But it is not really after all necessary for me to express any final decision on this point because there is the further question of the revocation of the appointment by the appointer. It has been contended on 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appointment in this case I must refuse to regard as applicable the technical rules relating to the exercise of power in the case of private rights and parties. If, however, it should be regarded that the provision that the appointment should be made only at the time of the death of the appointer was binding on Murugiah, then it follows that any appointment made before the apprehension of death except at the time of death cannot be regarded as valid or can only be valid as a provisional appointment subject to confirmation or revocation. But I for my part am disposed to base my judgment on the broader ground that in the case of public trust, power of appointment, unless there is something to the contrary in the instrument of a trust itself, should be regarded as a power to be exercised at or about the time when the appointment is to take effect having regard to the state of things then and that therefore any appointment so called previously made is in its very nature revocable. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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