REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3791 OF 2022

(ARISING OUT OF SLP(CIVIL) NO. 6706 OF 2021)

V. PRAKASH @ G.N.V. PRAKASH …APPELLANT(S)

VERSUS

M/s. P.S. GOVINDASWAMY NAIDU & SONS’

CHARITIES REPRESENTED BY ITS MANAGING

TRUSTEE & ORS. …RESPONDENT(S)

JUDGMENT

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

1

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 Madras

1

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 aside the

judgment and decree dated 12.10.2020, as passed by the Principal

District Judge, Coimbatore

2

, in Original Suit No. 160 of 2018.

2.1In 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 Administration

4

, 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

1 For short, ‘the High Court’.

2 For short, ‘the Trial Court’.

3 Hereinafter also referred to as ‘the Trust’ / ‘the respondent-Trust’.

4 For short, ‘SOA’.

2

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 respondent-Trust

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.

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.

3

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: -

4

“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)

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.

5

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.

(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

6

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

7

@ G.N.V. Prakash, who was also a probable candidate to represent the

family of Shri P.S.G. Narayanaswami Naidu as founder trustee, being the

son of the said Shri G.N. Venkatapathy. In the plaint, an assertion was

made that the present appellant (10

th

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

8

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 2

nd

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 (10

th

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?

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 1

st

plaintiff Shri V.

Rajan to vote for selection of founder trustee after resigning and the

mandate for the other defendants to appoint the 2

nd

plaintiff Shri Naren

9

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 2

nd

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) 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.

*** *** ***

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

10

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 2

nd

plaintiff Shri Naren Rajan by the majority comprising of

the vote of 1

st

plaintiff and consequently, injuncted the other defendants

from appointing the present appellant (10

th

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.

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

11

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 respondent-

Trust 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.

Lakshminarayanasamy

5

.

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

5 The said revisionists are respondent Nos. 1 to 4 herein.

12

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. The High Court, looking to the circumstances of the case,

even while recording the statement made on behalf of the plaintiff that he

would withdraw the suit, proceeded to examine the other contentions of

the parties wherein the respective claims were asserted on behalf of the

present appellant and the said Shri V. Rajan, for being appointed as

founder trustee to represent P.S.G. Narayanaswami Naidu branch. It was

asserted on behalf of the appellant that he alone was competent for the

vacancy in question for Shri V. Rajan having sustained disqualification by

resignation. While refuting these submissions, it was asserted by the

learned counsel appearing for Shri V. Rajan that the appellant was a

Green Card Holder of U.S.A. and was visiting India rarely and he was

disqualified for having converted into Christianity. The stand taken on

behalf of the revisionists was that they would select a person based on

the qualification of two rival claimants i.e., the appellant and Shri V. Rajan.

8.4.The High Court proceeded to observe that the issue regarding the

appointment of the trustee representing the line of Shri P.S.G.

Narayanaswami Naidu was the basic issue which the Court would be

deciding so that final decision could be taken by the existing founder

trustees. Thereafter, the High Court referred to various aspects of the

13

matter, including the reason of Shri V. Rajan’s earlier resignation that it

was to facilitate the transition of trusteeship to his son (Shri Naren Rajan)

but his son having expired, he was entitled to the vacancy so caused.

8.5.Having examined the matter in its totality, the High Court held that

Shri V. Rajan was not suffering from any disqualification and at the same

time, directed the Board of Trustees to consider the claims of Shri V.

Rajan and the appellant V. Prakash and then to take appropriate decision

regarding the appointment of founder trustee from Shri P.S.G.

Narayanaswami Naidu family.

8.6. The appellant challenged this decision of the High Court in

SLP(C) Nos. 23316-23318 of 2015, which was dismissed by this Court by

the order dated 04.01.2016 as the main suit itself was withdrawn.

8.7.Subsequently, the said Shri V. Rajan was appointed against the

vacancy of founder trustee and continued to function as such. However,

as the providence would have it, the said Shri V. Rajan also expired on

21.06.2017.

Third round of litigation & subject-matter before this Court

9. With the death of Shri V. Rajan on 21.06.2017, the appellant

remained the sole surviving male member from the branch of P.S.G

Narayanaswami Naidu’s family and by the letter dated 30.06.2017, he

intimated his willingness to serve as founder trustee. Thereafter, on

01.08.2017, clarifications were sought from the appellant by the Board of

Trustees in reference to his qualifications to hold the office as founder

14

trustee. In the detailed letter dated 10.08.2017, appellant brought the

judgment and decree in O.S. No. 631 of 2012 and A.S. No. 178 of 2013 to

the notice of the Trust.

9.1. Thereafter, on 07.11.2017, the Board replied by stating that in A.S.

No. 178 of 2013, the High Court had not given any categorical finding

regarding the qualification of the founder trustee. The appellant was

further called upon to furnish proof of his permanent residence in India

because the Board was of the view that SOA mandated that for a person

to be qualified for the post of founder trustee, he must be “permanently”

residing in Madras.

9.2. Subsequently, the appellant sent another detailed letter dated

22.11.2017, stating that the finding of the High Court regarding his

qualification was categorical and he was duly qualified even in terms of

the requirement of residence in the light of his Indian Passport, Aadhaar

Card, property documents, bank accounts and previous appointment by

the Board itself.

9.3. Again, the appellant received a communication dated 16.02.2018

that the Board had taken note of the pending suit in O.S. No. 1221 of

2015, where the matter was sub judice. However, on 22.02.2018, the

appellant informed the Board that he had already filed an application for

withdrawing the suit on 02.02.2018, being I.A. No. 264 of 2018, with

liberty to institute fresh proceedings.

15

10. Even when all the aforementioned correspondence did not yield

the desired result, the appellant filed the present suit in O.S. No. 160 of

2018 before the Principal District Judge, Coimbatore for the relief of

declaration that he was entitled to be recognized as the founder trustee

as per the SOA and also for perpetual injunction.

10.1.While deciding I.A. No. 272 of 2018, filed by the contesting

respondents for rejection of the plaint in O.S. No. 160 of 2018, the Trial

Court, by its order dated 27.04.2018, directed the respondent-Trust to

decide the eligibility of the appellant with already furnished documents.

This decision however was made subject to the result of the suit. The

relevant part of the said order dated 27.04.2018 reads as under: -

“....Already the issue between the parties was with regard to the

citizenship of the plaintiff in USA. The document that was sought

by the petitioner was explained by the plaintiff herein. so this Court

directs the petitioner in I.A.272/2018 to decide the eligibility of the

plaintiff with the already furnished document and with the

explanation given by the plaintiff dated 22.11.2017 in respect of

the citizenship of USA within two weeks from the date of this order

and report to this Court on 04.06.2018. Until such time, any

decision taken by the petitioner is subject to the result of this suit.

Further the plaintiff is agreed to produce the 1st document

tomorrow (28.04.2018).”

10.2. Accordingly, the Board of Trustees, in its meeting held on

27.07.2018, considered the claim of the appellant and, after scrutinising

the documents, rejected his claim to the office of founder trustee on its

view that the founder trustee must be permanently residing in Madras

Presidency as per SOA; and the appellant, being a Green Card Holder of

U.S.A., was not qualified for the office of hereditary trustee as per

Chapter IV Clause (B)(a)(ii) of the SOA. On 21.08.2018, the decision of

16

Board of Trustees was placed before the Trial Court by filing a memo

along with minutes of the meeting.

10.3.Thus, after going full circle of communications and proceedings,

the matter was before the Trial Court for adjudication.

11. The plaintiff-appellant submitted before the Court that the conduct

of the trustees has been mala fide and unconscionable in not considering

him qualified to be a founder trustee and adding the requirement of

“permanent” residence. It was further submitted that the Board of

Trustees had violated the mandate of SOA which provided the outer limit

of 60 days to fill the vacancy in the office of founder trustee. The appellant

further submitted that in the light of previous litigation whereby respective

Courts had declared him duly qualified and also his previous appointment

as a founder trustee, the Board of Trustees was not justified in denying

his candidature. The appellant also stated that ‘Green Card’ was a mere

privilege granted to him by virtue of his marriage to a US citizen and was

not an evidence of citizenship. He further contended to be a resident and

citizen of India and submitted his Indian Passport, Aadhaar card, Bank

accounts and other documents to support his claim.

11.1. On the other hand, respondent Nos. 1-8 submitted that the suit

was not maintainable and denied the claim of appellant by contending

that the judgment dated 16.04.2013 in O.S. No. 631 of 2012 was on

recast issues, without any decision on the issue of qualifications of the

17

appellant. Reference was made to page 10 of the said judgment that had

been as under: -

"Both sides chose to leave those issues (issues on

disqualification of Mr. Naren Rajan and Mr. Prakash) open as

could be gathered during the course of the arguments.

Accordingly, the issues are recast as below".

11.1.1. It was further submitted that in A.S. No. 178 of 2013, the High

Court did not give any specific finding on the issue of qualification and

merely observed by way of obiter dicta that Shri Naren Rajan and the

appellant were qualified to be considered for the post of founder trustee.

As regards the previous appointment of the appellant on 18.04.2013, it

was submitted that the appointment was conditional upon the proof of

permanent residence of the appellant in Coimbatore, Tamil Nadu; and the

appellant being a Green Card holder of U.S.A. was not qualified to be

appointed as a founder trustee as per Chapter IV Clause (B) of SOA.

11.2. After considering the respective pleadings of the parties, Trial

Court framed twelve issues. The relevant issues for the present purpose

could be noticed as under: -

“1. Whether the plaintiff is having necessary qualification for the

post of founder trustee of the 1st defendant, in terms of the

scheme of administer of the 1

st

defendants?

2. Whether the averments of the defendants is that the plaintiff is

disqualified from being appointed as a Founder Trustee of the 1st

defendant as he is a Green Card Holder of the United States of

America I a permanent Resident of USA?

3. Whether the contentions of the defendants that the suit is laid

on non existent provision in the scheme of administration dated

29-02-1936 in O.S.No.145/1935 framed by the Court of Principal

Subordinate Judge, Coimbatore, is correct or not?

*** *** ***

18

8. Whether the plaintiff is entitled to be recognized as the founder

trustee of the 1st defendant trust in the vacancy caused by the

demise of Mr.V.Rajan?

9. Whether the plaintiff is entitled to permanent injunction as

prayed for?

10. Whether the plaintiff is entitled the relief of declaration,

declaring that the meetings of the Board of Trustees of the 1

st

defendant, held after 60 days from the date of demise of Mr.

V.Rajan, without notice, without participation of the plaintiff are null

and void?”

11.3.After taking the evidence and having heard the parties, the Trial

Court proceeded to decide the relevant issues in its judgment dated

12.10.2020.

Findings of the Trial Court

12.After a detailed analysis of the material placed on record as also

the previous litigations, the Trial Court decided the question of

qualification to be appointed as founder trustee in favour of the appellant.

A few of the relevant observations and findings of the Trial Court as

occurring in paragraphs 40 and 44 of its judgment could be profitably

reproduced as under: -

“40. Ex.A.2 is the judgment and decree passed in

O.S.No.631/2012. In the said suit, the plaintiff’s uncle V.Rajan and

his son are the plaintiffs. The said suit was filed seeking for the

relief of declaration challenging the validity of the meeting of Board

of Trustees of the 1

st

defendant trust and other reliefs. In the said

suit the plaintiff herein has been arrayed as 10

th

defendant and the

defendants herein were also arrayed as defendants. The said suit

was ultimately dismissed with the direction to the Board of

Trustees that it shall choose one from among the 2

nd

plaintiff

(Naren Rajan) and the 10

th

defendant (V.Prakash @

G.N.V.Prakash, the plaintiff herein) to represent the branch of

late.PSG Narayanasamy Naidu in the Board consistent with the

spirit of SOA. In the said suit though the Rajan and Naren Rajan

pleaded about the alleged disqualifications of the plaintiff herein,

later on, they did not press the said plea. In fact, both sides

19

choose to leave those issues open. The 1

st

defendant trust or any

other defendants did not raise any plea about the alleged

disqualifications of the plaintiff. Even though the issues were

recasted, the learned Additional District Judge, after satisfying the

qualification of the plaintiff herein, arrived the said decision.

*** *** ***

44. Hence, this Court is of the considered view that the plaintiff’s

qualification, to be appointed as a founder trustee has been

affirmed by the Judicial proceedings. The said judicial proceedings

reached its finality. In the earlier proceedings, the defendants did

never raise any objections with regard to the qualification of the

plaintiff. Moreover, in view of the judgment passed in Ex.A.2, the

plaintiff was selected as Board of Trustee and the plaintiff had

effectively served as a Board of Trustees from 8-04-2013 to 26-06-

2015. He had participated in the Board meetings and has

contributed his knowledge to the benefit and development of the

1

st

defendant trust. The said factum has been proved vide the

documents Ex.A.37 to Ex.A.47. Further, this Court has perused

the Ex.A.9 and Ex.A.10, wherein the 1

st

defendant trust did not say

anything about the alleged disqualification of the plaintiff. Further,

the Plaintiff was examined as PW.1 and deposed before the Court

that he is an Indian citizen and resident of Coimbatore.”

12.1. On the issue of ‘Green Card’, the Trial Court perused the

concerned legislation and literature of the U.S.A., wherein the permanent

resident card has been described as a document issued to immigrants

under the Immigration and Nationality Act (INA) as evidence that the

holder has been granted the privilege of residing permanently in the

United States. The holders of the Green Card are known as Lawful

Permanent Residents (LPR). They are the citizen of another country but

are entitled to apply for U.S. citizenship. The Court came to the

conclusion that ‘Green Card’ was a mere privilege and did not terminate

the Indian citizenship automatically. Relevant extracts of the findings of

the Trial Court would read as under: -

"46. It is apposite to mention here that PW.1, in his evidence has

deposed that, in the year 2010 itself, he shifted from USA to India

20

permanently. Further he retired in the year 2009 in USA. He

denied the suggestion that he cannot stay more than six months at

a time in India. He has deposed that he is holding Indian Passport

and he has not applied or obtained USA Passport. Further, he

deposed that the even though plaintiff could apply for USA

citizenship, he did not apply for the same. Hence, as rightly

pointed out by the learned counsel, ‘green card’ is a privilege. It is

one of the way to attain US citizenship. It alone does not confer

citizen of US states. If the card holder violates, he will lose the

green card holder status. One can voluntarily give up the card.

Hence, merely because, the plaintiff is a green card holder, his

Indian citizenship will not be declined automatically.

*** *** ***

48. Hence, this Court holds that holding green card is a privilege.

Green card holder does not automatically lose his citizenship of

his mother country. Hence, this Court decides that plaintiff’s having

green card, would not be a bar to be a founder trustee.”

12.2. The Trial Court accepted the appellant’s right to be recognised as

the founder trustee pursuant to Chapter VI Clause (4)(c)(1) of the SOA,

as being the sole surviving adult male member of the P.S.G.

Narayanaswami Naidu branch of the family and granted injunction

restraining the defendants from interfering with the right of the appellant

as a founder trustee. The Trial Court held and directed as under: -

“53. In view of the above, this Court hold that the plaintiff is entitled

to be recognized as the founder trustee of the 1

st

defendant trust in

the vacancy caused by the demise of Mr.V.Rajan. Since, the 1

st

defendant trust has not acted as per the SOA, the plaintiff is

entitled the relief of declaration that is to be recognized the

founder trustee of the 1

st

defendant trust in the vacancy caused by

the demise of Mr.V.Rajan, consequently, the plaintiff is entitled the

permanent injunction restraining the defendants from any manner

interfering with the right of the plaintiff as a founder trustee of the

1

st

defendant trust and in his role, responsibilities and duties as a

founder trustee of the 1

st

defendant trust.

*** *** ***

56. Admittedly, the scheme framed in the year 1936, at that time

there were very limited transport facilities. Nowadays due to

advancement of scientific technology and development of human

resources, the world has shrunk into a Global Village. Admittedly,

21

the plaintiff's wife is a citizen of USA. The plaintiff served in USA.

Now he has retired from service, he has winded up his businesses

at USA. Due to the developments in the Air transport he can travel

from USA to India within a day or two. Due to Covid-19 pandemic,

international conferences, seminar, Board Meetings etc., all are

being conducted through video conference. In fact, in this case

also, both side counsels had argued through video conference.

From the above imply that even if the plaintiff resides in USA, he

could effectively discharge his function as Founder Trustee and

even he can very well participate in the Board Meetings and other

meetings through means of technology. Hence, this Court is of the

considered view that Chapter IV clause (B) (ii) that one has to

reside in the Madras presidency is otiose for the present days and

the said provision requires suitable amendment. Hence, this Court

is of the considered view that Ex.A.1. Scheme of Administration is

to be amended suitably. The plaintiff counsel has submitted that

the 1

st

defendant trust alone is entitled to take steps to amend the

SOA. Till the plaintiff is appointed as a Board of Trustee, he has no

power to take steps to amend the Scheme of Administration. The

power or authority to amend the scheme of administration lies only

with the 1

st

defendant trust.”

Findings of the High Court

13. Being aggrieved by the judgment and decree so passed by the

Trial Court, the contesting respondents approached the High Court by

way of First Appeal in A.S. No. 978 of 2020.

13.1. Learned counsel for the contesting respondents extensively

assailed the judgment of the Trial Court in declaring the appellant

qualified for trusteeship on the basis of non-existing provision of the SOA.

It was submitted that as per Chapter IV Clause (B)(a)(ii) of SOA, one of

the qualifications for the post of founder trustee was that the person

concerned ought to be a resident within the area of Madras Presidency;

and the expressions “he resides in the Madras Presidency” had specific

connotations and reasoning in reference to the extensive supervision

work required to be carried out by the Trustee.

22

13.2. Per contra, learned counsel for the present appellant submitted

that doctrine of res judicata was applicable even against the co-

defendants. It was further emphasised that the earlier appointment of the

appellant, when the Board of Trustee was called upon to elect amongst

the descendants of Shri P.S.G. Narayanaswami Naidu during the earlier

rounds of litigation, was a sufficient instance for the operation of estoppel

by conduct and to forbid the respondents to change their stand.

13.3. After considering the respective submissions of the parties, High

Court observed that qualification of the founder trustee with reference to

residence in Madras Presidency was the bone of contention; and held

that the Trial Court erred in applying the principles of res judicata and

estoppel in the present suit. The High Court observed thus: -

“12. The point for consideration in the appeal is whether the

plaintiff proved before the Trial Court he resides within the Madras

Presidency, to be qualified for the post of Trusteeship in the

Appellant Trust?

13."Madras Presidency" when the scheme framed in the year

1936, during the British India period included most of the present

South India states and part of Orissa. After Independence and the

limitation of states on linguistic lines City of Coimbatore where the

appellant trust Iocated fall under the "State of Tamil Nadu" formerly

known as "Madras State".

14. Be that as it may, the issue is narrowed down whether a green

card holder of USA will fall under the meaning of a person resides

in Madras Presidency. Though this issue was framed in the earlier

round of litigation (i.e) O.S.No.631 of 2012, the said issue was

deleted and not adverted leaving the issue open, therefore any

observation and finding in the earlier litigation made, it was not on

a issue framed. The Trial Court in O.S.No.631 of 2012 expressly

made clear it will not advert to this issue. So, whether the plaintiff

resides in Madras Presidency in the present suit will not be hit by

Section 11 of C.P.C This Court is of the view that the earlier

appointment of the plaintiff as Founder Trustee was also done in

the midst of litigation and there was no opportunity for the parties

23

to prove either way whether holding the green card will disqualify a

person therefore, the principle of estoppel also cannot be applied

in this case. This Court wants to make clear that the suit ought not

to have been decided on the point res judicata or estoppel.

Settling the legal objections regarding the maintainability of the

suit as above, the point of qualification as per scheme now tested

in the right of evidence placed.”

13.4. Thereafter, the High Court observed that the appellant was a

permanent resident of the U.S.A., as reflected from his Green Card. He

was holding Aadhaar Card to raise the presumption of his residence at

the address mentioned therein and he was an income tax assessee in

India as well as in the U.S.A. However, as per Ex.A24 and Ex.A25, the

letters given by Chartered Accountant on 12.02.2018 and 07.01.2019

respectively, for the period 2014 to 2019, the appellant had been out of

India for more than half of the period even though he alleged to have

shifted permanently to India in the year 2010. After taking note of these

facts, High Court observed that as per the spirit of SOA, the plaintiff-

appellant has failed to prove his animus to reside in Madras Presidency

and could not be termed as a resident. The High Court observed and held

as under: -

“21. Going by his own admission in the cross examination, he has

deposed that in the year 2010 itself he shifted to India

permanently. Whereas, Ex.A.24 and Ex.A.25 for the period 2014

to 2019, he had not been in India for more than half the period. It

is not that he should not go abroad and he should always stay

within the Presidency of Madras, when the qualification had been

prescribed though a century old unless until it is amended, the

spirit the of provision should be respected. The plaintiff who claims

Trusteeship have miserable failed to place evidence that he live in

Madras Presidency and he continue to have the animus to reside

in Madras Presidency.

22. The plaintiff still holds his green card, most of the time he was

not staying in India even according to his own evidence. Based on

24

his conduct of attending the board meeting earlier, when he was

holding the Trusteeship will though give an impression that he will

be physically available when the meeting is conducted, but as said

in the Supreme Court judgment and relied by the plaintiff counsel,

the animus of the person to reside in India is important and only

the animus has to be looked into. Here is the case where the

plaintiff say he has shifted to India from U.S.A permanently and

reside in India since 2010, but his own evidence indicates that only

less than 50% of the period he was in India and he holds green

card, which show he is a permanent resident of USA. He has not

given up his green card. His animus to be a resident of U.S.A is

made explicit. In the cross examination, he has asserted that he

has no intention to give up his green card. His admission on oath

as well as his conduct does not show that he neither on fact

resides within Madras Presidency nor have any animus to live

within Madras Presidency. Animus of a person can be inferred only

by the conduct. Nobody can say the plaintiff should not have the

green card or have a business in foreign country and account in a

foreign country, but when he wish to hold the Trusteeship of a

Trust, which mandates that the trustee must reside within Madras

Presidency and if he is not able to satisfactorily prove that he

resides within Madras Presidency, it is not obligatory on the part of

the other Trustees to induct him to the Trust, contrary to the

provision of the scheme of administration.

*** *** ***

26. The learned counsel appearing for the respondent/plaintiff

would seriously contend that the respondent/plaintiff is a resident

of India as defined under income tax Act and he has all animus to

stay in India permanently. Though such statement is made in the

course of arguments, evidence placed by respondent/plaintiff does

not support the said statement. As pointed out earlier, the

respondent/plaintiff had stayed in India less than 50 % and his

intention to live in Madras Presidency permanently is not fortified

by his conduct. His statement on oath that from 2010 he is

permanently residing in India is also falsified by its own document

Ex.A.24 and Ex.A.25.”

13.5. The High Court further observed that Trial Court had given a wide

interpretation to the word “resides” in the light of scientific advancements

but, such a change or amendment was not permissible in collateral

proceedings and that could only be done via appropriate amendment to

the clause in the SOA. The High Court said, -

25

“24. Any terms found in the written document not in contrary to law

to be understood the way it is stated and not to be supplemented

unless there is ambiguity. Here is a clause which says the Founder

Trustee must reside within Madras Presidency. The word -resides-

as per Oxford dictionary, means -live in a particular place-. The

word to be understood as it is defined and cannot be substituted

with the word -stay- or -animus to reside- or domicile or

citizenship.

25. The Trial Court Judge has thought that in view of scientific

advancement the word reside should not be given the meaning

how it was understood 100 years ago. I fear, few years later, some

other Judges may think the restricting the post of Trusteeship to

male member is against gender Justice so it should be read as

female also since in general clauses Act he includes she, men

includes women so male includes female. This may be the opinion

of the Judges, but the persons who manage the Trust should

come forward to amend the clause, if they feel it is out dated or not

convenient. Without appropriate amendment to the clause in the

scheme of administration which is the out come of the scheme

framed under a Court decree, the terms to the scheme cannot be

manipulated.”

13.6. In view of above, the High Court set aside the judgment and

decree of the Trial Court and held that the appellant was not residing

within the area of Madras Presidency as per the qualifications prescribed

under the SOA and hence, was not eligible for the office of the founder

trustee. The High Court held and concluded as under: -

“28. Going by the literal meaning of the word -resides- as of now,

the records produced and relied by the respondent/plaintiff is

inadequate to qualify him as a person who resides in Madras

Presidency. However, not a disqualification it is always open to the

respondent/plaintiff to place before the Board of Trustees, records

to show he resides within Madras Presidency and qualified to hold

the trusteeship.

29. For the said reasons, this Court finds that the trial Court

judgment holding that the plaintiff/respondent resides within

Madras Presidency and qualified to hold the post of Trustee is

contrary to his own admission and other evidence, hence liable to

be set aside. Accordingly, this Appeal Suit is Allowed. The trial

Court judgment is set aside. Consequently, connected Civil

Miscellaneous Petition is also closed. No costs.”

26

14.The plaintiff-appellant has approached this Court being aggrieved

by the judgment and order dated 04.03.2021 so passed by the High Court

and that is how the matter is before us for determination of the basic

question relating to the validity of the appellant’s claim to the office of

founder trustee.

Other claimants

15.Before adverting to the rival submission of the main contesting

parties, appropriate it would be to take note of a few facts related with two

other claimants to the said office of founder trustee in the respondent-Trust.

15.1. The petition seeking leave to appeal was taken up for consideration

on 01.07.2021 when it was informed on behalf of the contesting

respondents that Shri Narayan Karthikeyan had been appointed as founder

trustee on 14.05.2021 on the vacancy in question. In the given set of

circumstances, the plaintiff-appellant was permitted to join the said newly

appointed trustee as respondent No. 10 and while issuing notice, status quo

with regard to composition of the trustees was directed to be maintained.

15.2.The said respondent No. 10 is none other but son of Shri G.R.

Karthikeyan, respondent No. 3. His father-in-law and brother-in-law are also

holding the office of trustee in the respondent-Trust and are on record as

respondent Nos. 7 and 8 respectively. It has been submitted by the

respondent No. 10 that he came to be nominated after the appellant was

found ineligible because the three founder trustees decided to nominate

one of the eligible members from the remaining three family branches of

27

founder trustees; and accordingly, a decision was arrived at to appoint him

as one of the trustees.

16.During the pendency of SLP, on 14.07.2021, an application for

intervention (I.A. No. 80383 of 2021) also came to be filed on behalf of one

Dr. D. Padmanabhan, who would assert his own right to be appointed as a

trustee. The applicant has pointed out the relationship of respondent No. 10

with the other existing trustees and has submitted that the appointment of

respondent No. 10 was against the spirit of SOA. The applicant has further

submitted that his late father Prof. G.R. Damodaran was the founder

principal of the two colleges and contributed towards development of the

activities of the Trust, particularly related with empowerment of education;

and his late father held the status of Managing Trustee from 1972-1978.

The applicant submits that he wishes to be a part of the Trust for the

purpose of contributing towards its growth so that the institutions pioneered

by his father scale greater heights.

17.As regards the above-mentioned two claimants, suffice it to observe

that their respective claims to the office in question could be taken up for

consideration only if the claim of the appellant is negatived and he is held

ineligible to hold this office. Having said so, we may revert to the core of the

matter with reference to the rival submissions.

Rival Submissions

18. Learned senior counsel for the appellant has submitted that the

High Court has wrongly reversed the judgement of the Trial Court

28

whereby the appellant was considered fulfilling the requirement of

‘residence' as per the SOA. The Trial Court was justified in taking note of

previous conduct of the respondent Trust as well as previous judicial

proceedings. The Trial Court was also justified in considering the Green

Card as a mere privilege and not a bar operating against the appellant, so

as to prevent him from being appointed as a founder trustee.

18.1. It has been contended by the learned senior counsel for the

appellant that the principles of res judicata and estoppel are of great

importance in the matter at hand, and the contentions on these principles

should not have been cursorily rejected by the High Court. In support,

reliance is placed on several decisions of this Court.

18.2. The learned counsel would further submit that it was

independently proved by the appellant before the Trial Court that he was

a resident of the area in question and also had the required animus to

reside thereat. His Aadhaar Card, Indian Passport, bank certificates,

certificates issued by Chartered Accountants are sufficient to prove his

residence and animus, and also to qualify him to hold the office of the

founder trustee.

18.3. The learned counsel has argued that any period of physical

presence, however short, may constitute residence provided that it is not

transitory, fleeting or casual, as was observed by this Court in Yogesh

Bhardwaj v. State of U.P. & Ors.: (1990) 3 SCC 355. The very fact that

appellant retired in 2009, shifted to India in 2010, and has not applied for

29

citizenship of the U.S.A. till date, duly proves his animus. In support of

these contentions, reliance is placed on several decisions, including those

in Inder Singh Ahluwalia v. Prem Chand Jain & Ors. : 1993 SCC

OnLine Del 12, and Mst Jagir Kaur & Anr. v. Jaswant Singh: (1964) 2

SCR 73.

19. Learned counsel for the proforma respondent No. 9 has supported

the claim of the appellant and has submitted that the Trial Court, after

considering all the aspects, had rightly held the appellant qualified for the

office of founder trustee, being the only male descendant available in the

family branch of Shri P.S.G. Narayanaswami Naidu. Thus, he ought to be

appointed the founder trustee as per the SOA. The learned counsel has

further submitted that the qualification of the appellant was never disputed

by the Board in earlier proceedings. There was a sudden change of stand

by the Board, which is mala fide and unjustified.

20. Per contra, learned senior counsel for respondent Nos. 1-4 and 10

has submitted that the High Court has rightly set aside the judgment of

the Trial Court. The bar of res judicata has no application in the present

matter because the appellant’s qualification had never been a matter

directly in issue and was never decided on merits in previous rounds of

litigation. Furthermore, the bar of estoppel cannot operate against the

respondent-Trust because the previous appointment of the appellant was

on the condition of submission of proof of permanent shifting to

Coimbatore. The learned senior counsel would further submit that the

30

issue of Green Card qua the residence in India is a pure question of law

and hence, principle of estoppel cannot be invoked in the present matter.

20.1.Learned senior counsel has contended that the appellant is not

qualified to be a founder trustee as per Chapter IV Clause (B) of the SOA.

A Green Card is officially known as a Permanent Resident Card and the

holder of this card cannot stay outside U.S.A. beyond one year without re-

entry permit. The appellant has himself deposed in his cross-examination

about his intention of not giving up his Green Card. He is a pensioner in

U.S.A.; has a driving licence; and is an income tax assessee in U.S.A.

Thereby, appellant has completely failed to establish his animus to be a

resident of India.

21.Learned senior counsel for respondent Nos. 6-8 has also made

the submissions in parallel lines and has contended that the principle of

res judicata cannot be applied as the issue of qualification was not

decided on merits and in earlier litigation, there was no conflict of interest

between the respondent-Trust (defendant No. 1 in O.S. No. 631 of 2012)

and the appellant (defendant No. 10). Thereby, essential conditions for

the application of res judicata between the co-defendants as laid down by

this Court in Makhija Construction & Engg. (P) Ltd. v. Indore

Development Authority & Ors.: (2005) 6 SCC 304 are not fulfilled and

present suit is liable to be dismissed.

22.Having given thoughtful consideration to the rival submissions and

having examined the material placed on record, we are clearly of the view

31

that this appeal deserves to succeed and the decree of the Trial Court

deserves to be restored.

The appellant’s claim rightly accepted by the Trial Court

23.A comprehensive look at the logic and reasoning of the High Court

in the impugned judgment impels us to observe that 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.

24.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

(supra) 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 for

32

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. With

respect, we are unable to endorse this approach.

25.In paragraph 21 of the impugned judgment, the High Court has

observed that the spirit of the provisions prescribing 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

33

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.

25.1.When looking at the spirit of the Scheme of Administration of Trust,

in our view, 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 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. In our view, 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 of

34

number of days of stay in India while ignoring all other features and factors

showing his choice of staying in India.

25.2.As observed by this Court in Mst Jagir Kaur (supra), 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.

26.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.

27.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.

35

27.1.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 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.

27.2.Taking cue from the aforesaid, when we take up the verb “reside”

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.

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28.While not approving the approach of the High Court in this matter,

particularly in relation to the construction of the terms of SOA, we may

observe a little further. 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.

6

29.In order to buttress its reasoning, the High Court has even gone to

the extent of suggesting a proposition in paragraph 25 of the impugned

judgment which, to say the least, does not stand to logic. The High Court

has observed that if the construction of sentence or words was to be

made with reference to the present-day scenario, sometime later some

6 In the case of Directorate of Enforcement v. Deepak Mahajan: (1994) 3 SCC 440 this

Court has pointed out that the words are not passive agents or mathematical symbols so as to

carry the same value and meaning the same thing at all times. This Court has said,

“93. It is apposite, in this context, to refer to the following passage found in Chapter

4 in the book titled The Loom of Language:

“Words are not passive agents meaning the same thing and carrying the same

value at all times and in all contexts. They do not come in standard shapes and

sizes like coins from the mint, nor do they go forth with a decree to all the world

that they shall mean only so much, no more and no less. Through its own

particular personality, each word has a penumbra of meaning which no draftsman

can entirely cut away. It refuses to be used as a mathematical symbol.””

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Judge might think that restricting the trusteeship to male member was

against gender justice and it should be read to include female too. With

respect, we are unable to endorse this approach. The hypothesis as

suggested by the High Court is of the process of altering the term of a

document. 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 construction, the words are always assigned the meaning which

stand in tandem with their context, while assuring that the assigned

meaning serves the purpose.

29.1.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. We have no hesitation in endorsing

the views and findings of the Trial Court.

The questions of res judicata and estoppel

32.After the discussion and analysis foregoing, we have arrived at a

clear conclusion that the contesting respondents had been unjustified in

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questioning of the eligibility of plaintiff-appellant to hold the office of founder

trustee with reference to his Green Card and want of permanent residence

in the area in question. This had been the finding of the Trial Court which

we have no hesitation in restoring, while setting aside the contra conclusion

of the High Court on the merits of the principal issue involved in the matter.

That being the position, the other arguments of the parties in regard to res

judicata and estoppel need not even be gone into because, in our view, the

result which the appellant seeks to derive from the operation of these

principles has nevertheless been reached in the present case with

reference to the evidence led herein. Thus, we do not propose to elaborate

on the issues of estoppel and res judicata as raised by the plaintiff-

appellant.

32.1.We may, however, indicate that in our prima facie opinion, 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 the

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founder trustees to induct the appellant on 18.04.2013 could not have

operated as estoppel against them.

32.2.However, in our prima facie opinion, 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 10

th

defendant in the said matter. The present contesting respondents 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.

7

However, we are not elaborating on these aspects

7 The said Section 11 and its Explanation IV read as under:

“11. Res judicata. – No Court shall try any suit or issue in which the matter

directly and substantially in issue has been directly and substantially in issue in

a former suit between the same parties, or between parties under whom they or

any of them claim, litigating under the same title, in a Court competent to try

such subsequent suit or the suit in which such issue has been subsequently

raised, and has been heard and finally decided by such Court.

*** *** ***

Explanation IV.- Any matter which might an and ought to have been made

ground of defence or attack in such former suit shall be deemed to have been a

matter directly and substantially in issue in such suit.”

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for the reason that in the present suit, the plaintiff-appellant has, in our view,

categorically established the fact that he was indeed eligible and was not

suffering from the alleged disqualification.

Conclusion

33.Viewed from any angle, we are satisfied that the judgment of the

High Court remains unsustainable. In our view, 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.

34.Accordingly, and in view of above, this appeal succeeds and is

allowed; 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 our findings and conclusions,

the claim of the applicant of I.A. No. 80383 of 2021 is rendered

redundant. That application also stands rejected.

The parties shall bear their own costs throughout.

……....……………………. J.

(VINEET SARAN)

……....……………………. J.

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(DINESH MAHESHWARI)

NEW DELHI;

MAY 09, 2022.

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