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K. Venkataraya Prabhu Petitioner v. Vasudeva Prabhu And Others Respdts.
Structured Summary of the Provided Opinion
Factual and Procedural Background
This appeal challenges an order of the Subordinate Judge that dismissed the appellant's application to execute a decree originally passed in O.S. No. 78 of 1914. The decree arose from a partition suit filed by Ramakrishna Prabhu against his brother Upendra Prabhu; a compromise decree (rajinama) set apart certain properties for the performance of religious trusts and included four schedules (A–D) describing the allocated moveable and immovable properties and the duties to be performed by the trustee.
Upendra Prabhu was constituted trustee under the decree but, being old and blind, his son Srinivasa Prabhu managed the trust. The decree provided that on default in performing the duties in Schedule C, Ramakrishna Prabhu could take possession of all the properties and collect values and sums (including 12% interest on certain liabilities) to ensure performance of the trusts.
Upendra Prabhu committed repeated defaults, leading to execution proceedings. The High Court on two occasions held the decree was executable and that Upendra's defaults were gross and persistent; the execution recovered properties in Schedule A. Ramakrishna Prabhu died before complete execution. Before his death he executed a registered deed of trust (Bx. M, 24 Sept 1920) empowering the appellant to continue execution and appointing the appellant as his sole representative to perform trusteeship for himself and his male descendants; he also executed a will (Ex. L, 5 May 1923) making similar dispositions in favour of the appellant (referred to in the opinion).
The appellant applied to execute the decree after Ramakrishna's death, but the application was dismissed by the Subordinate Judge on the ground that Ramakrishna Prabhu lacked power to leave either the deed of settlement or the will in the manner asserted. This appeal followed.
Legal Issues Presented
- Whether, under the terms of the compromise decree (rajinama), the beneficiary (Ramakrishna Prabhu) or his heirs had the power to appoint a successor trustee or to vest the trusteeship and its incidents (by use of words such as "perpetually get performed") in himself and his heirs.
- Whether the registered deed of trust (Bx. M) and the subsequent will (Ex. L) executed by Ramakrishna Prabhu validly transferred or conferred the rights arising from the decree on the appellant (i.e., whether such nomination was effective).
- Whether, despite the invalidity of the appellant's nomination, the execution proceedings should nonetheless be permitted to continue under the appellant's conduct (with safeguards) to protect the interests of the trust and the idol, or whether the execution application should be dismissed.
Arguments of the Parties
Appellant's Arguments
- The appellant contended that, because Upendra Prabhu (the trustee under the decree) had committed default and thereby lost his rights under the decree, Ramakrishna Prabhu (as the other party entitled to enforce the decree) became solely entitled to the rights pertaining to the trust and therefore had the power to appoint his successor.
- The appellant relied on the decree clause that states the plaintiff "should take possession of the property accordingly, collect the produce thereof, pay the teerva... and perpetually get performed all the viniyogas" as conferring on Ramakrishna the right to appoint a successor (i.e., the power to nominate his representative or heir as trustee).
- It was argued (by analogy to the English law of powers) that where there are several trustees, a power of appointment may pass by survivorship to the surviving trustee, and that this analogy should apply so that survivorship would carry the power to appoint or effect the trusteeship.
The opinion does not set out in detail any distinct, opposing arguments by other parties in the record; it records the Subordinate Judge's conclusion and the High Court's prior findings on executability and default.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raja Ram v. Narasinga | Used to show that similar wording (e.g., orders or grants using expressions comparable to "perpetually get performed") does not of itself create a heritable estate or vest trusteeship as a descending estate. | The Court relied on this authority to support the conclusion that the phrase "perpetually get performed" in the compromise decree does not, by itself, vest a trusteeship or give a descendible estate to Ramakrishna Prabhu and his heirs. |
| Tulsi Pershad Singh v. Ramnarain | Decision of the Privy Council referenced for the principle that wording similar to "perpetually" in grants does not vest a heritable estate. | The Court followed the principle stated in this case (as referred to in Raja Ram v. Narasinga) to reinforce its interpretation that the decree's language did not confer a heritable estate or exclusive appointing power on Ramakrishna Prabhu and his descendants. |
Court's Reasoning and Analysis
The Court proceeded by close textual and legal analysis of the compromise decree and the surrounding facts:
- Nature of the property: The Court emphasized that the properties set apart for the trust were not joint-family assets giving rights of survivorship; instead they were properties held by Ramakrishna and Upendra as reversioners (tenants-in-common). Consequently, survivorship principles applicable to joint property could not be imported to create an automatic succession of trusteeship to Ramakrishna's heirs.
- Meaning of the decree language: The Court held that the phrase "perpetually get performed" in the decree did not, standing alone, create a heritable estate or confer an exclusive power of appointment on Ramakrishna Prabhu and his heirs. The Court cited Raja Ram v. Narasinga and Tulsi Pershad Singh v. Ramnarain to support this interpretation that similar words in grants do not convey a heritable estate.
- Rights of co-founders and their heirs: The Court reasoned that Upendra Prabhu's son (Srinivasa) had as much right as Ramakrishna or his sons to participate in the appointment of trustees upon Upendra's death. The general legal rule noted by the Court is that the founder(s) of a trust or their heirs typically have the right to appoint successor trustees in case of failure of trustees unless the trust instrument expressly provides otherwise.
- Absence of express power in the decree: The Court found no provision in the rajinama decree that expressly gave Ramakrishna Prabhu the power to appoint a successor upon his death. Therefore, the nomination effected by the deed (Bx. M) and the will (Ex. L) could not be upheld as valid delegations of a power that the decree itself did not confer.
- English law analogy unnecessary: Although the appellant urged analogies from English law of powers to support a survivorship-based transfer of appointive power, the Court deemed it unnecessary to decide that question because the compromise decree contained no provision for the appointment of subsequent trustees or for how the trust should devolve on the deaths of the founders.
- Equitable rule adopted: The Court articulated an equitable principle that, in such cases, the power of appointment should be vested in all founders or their representatives (i.e., the heirs of all founders), rather than giving the power solely to the surviving founder or his representatives merely because of survival.
- On the Subordinate Judge's decision: The Court agreed with the Subordinate Judge's conclusion that the appellant's nomination as trustee was invalid because the decree did not vest the necessary appointing power in Ramakrishna Prabhu to enable him to make that nomination effective.
- Public-policy / trust-protection considerations: Despite rejecting the nomination, the Court refused to dismiss the execution application outright because dismissal would prejudice the trust and could cause complications (limitations issues, complex proceedings). The Court invoked the general rule that a trust should not fail for want of a properly constituted trustee and that properties dedicated to religious worship should have their interests protected.
- Practical remedy fashioned: To protect the trust, the Court exercised its powers to permit execution to continue under supervision: it empowered the appellant to execute the decree for the recovery of trust properties subject to conditions (bringing recovered monies into Court, providing security for the value of moveable property and two years' mesne profits on immovable property), and provided that recovered properties would ultimately be handed over to any trustee or trustees legally appointed by the interested persons or by appropriate proceedings.
Holding and Implications
Holding:
ORDER SET ASIDE — The Court reversed the decision of the Subordinate Judge that had dismissed the appellant's execution application. The Court held that the nomination of the appellant as trustee (by the deeds executed by Ramakrishna Prabhu) was not valid because the rajinama decree did not confer on Ramakrishna the power to appoint a successor or to create a descendible trusteeship by words such as "perpetually get performed." The Subordinate Judge's conclusion that the nomination was invalid was upheld.
Immediate practical effect / Remedies and consequences:
- Despite the invalidity of the nomination, the Court directed that execution proceedings should continue in order to safeguard the trust and the idol, and to avoid prejudicial consequences that an outright dismissal would produce.
- The Court empowered the appellant (subject to conditions) to carry on execution: he was to bring into Court all monies recovered, give security for the value of moveable properties recovered, and give security for two years' mesne profits for immovable properties recovered.
- Members of both branches of the family may appoint a trustee; failing agreement, interested persons must obtain appointment of trustees by appropriate legal proceedings. Properties recovered by the petitioner are to be handed over to any trustee or trustees legally appointed in the future.
- Costs: Because the appellant substantially failed on his principal contention, the Court directed that each party bear their own costs throughout.
The opinion confines itself to the direct effects on execution and the protection of the trust; it does not announce any expansive new legal doctrine beyond the application of existing authorities and equitable principles to the facts. No broader precedent was declared beyond the reasoning applied to the facts of this case.
(Summary prepared from the text of the provided opinion. No information not present in the opinion has been added.)
1. This appeal arises out of an order passed by the Subordinate Judge-dismissing the petitioner's application to execute the decree passed in O.S No. 78 of 1914. The facts leading up to the execution application, are shortly these. Upendra Prabhu and Ramakrishna Prabhu were brothers and succeeded to certain properties as reversioners. O.S No. 78 of 1914 was filed by Ramakrishna. Prabhu against Upendra Prabhu for partition and a compromise decree was passed. By the compromise decree certain properties were set apart for the performance of religious trusts and Schs. A to D relate to the trust and its performance. Sch. A refers to the ammove-able properties set apart for the crusty Sch. B refers to the moveables, Sch. C, refers to the performance of the trust and the various acts to be done by the trustee and Sch. D refers to the properties which are made the security for the due performance of the trusts by the trustee. Upendra Prauhu the elder brother was constituted by the rajinama decree the trustee, but as he was old and blind his son, Srinivasa Prabhu was allowed to be in actual management of the trust properties and to perform the trust. The rajinama decree provided that if there was default in performing the duties mentioned in Sch. C, then Ramakrishna Prabhu the plaintiff in the suit was given the right to get possession of all the immovable and moveable properties in execution. As regards the rights of Ramakrishna Prabhu after taking possession the decree runs as follows:
When the plaintiff would accordingly take possession of the said properties he will be fully entitled to collect the value of the move-able properties which are found wanting and the amount fixed for the expenses of the viniyogas which are left unperformed and also the amount of Court costs together with interest-thereon at 12 per cent, per annum on the liability of the immovable property mentioned in D list attached hereto and belonging to the defendant. The plaintiff should take possession of the property accordingly collect the; produce thereof, pay the tirva of the same and perpetually get performed all the viniyogas shown in C list without obstruction and any omission whatever and the property called; “Padi” consisting of S.P No. 23/10, 3, 8, 7, 1, 11, 4 & 27/1; 2, 7, 4, 9 out of the property allotted to his share must be liable in that respect. Besides he should spend the amount collected for the acts left unperformed.
2. The decree goes on to state that both. Ramakrishna Prabhu and Upendra Prabhu should act jointly as regards the repairs to the trust house, the distribution of rice to the poor and the catting of trees standing on the trust property. Upendra Prabhu the trustee committed default and this led to the proceedings in execution. The matter came upon two occasions to the High Court and it was decided that the decree was executable, that Upendra Prabhu committed default which was gross and persistent and that he is not entitled to any relief against forfeiture. Ramakrishna Prabhu went on with the execution and recovered the properties in Sch. A. Further proceedings were taken by him as regards making good by the defendant of certain properties which he said were missing and for other relief. Ramakrishna Prabhu died before the decree could be fully executed.
3. He, however, executed two documents. The first is Bx. M. dated 24th September, 1920. It is a registered deed of trust which after referring to the execution proceedings empowered the appellant to conduct the further execution proceedings and take possession of the properties. The deed states that Ramkrishaa Prabhu appointed the appellant as his sole representative and relinquished all his rights in his favour and conferred them on the appellant so that the appellant and his male children may from generation to generation perform the duties of trustee. In spite of this document however, proceedings were continued by Ramakrishna Prabhu. The next document that Ramakrishna Prabhu executed is a will Ex. L, dated 5th May, 1923. It recites the previous document. The material portion of the will runs as follows:
As per the trust deed executed by me in favour of Venkataraya, he alone without any sort of objection from Annappa (elder brother) should become entitled to and should realise nil reliefs which have accrued or may hereafter accrue against the respondent Srinivasa Prabhu. My intention that Venkataraya should collect all amouats in respect of all claims of whatever nature against Srinivasa Prabhu as expressed both in the settlement deed and trust deed executed by me in his favour, I have made it more explicit by this document.
4. On the death of Ramakrishna Prabhu the appellant applied to execute the decree but his application was dismissed on the ground that Ramakrishna Prabhu had no power to leave either the deed of settlement or the will.
5. The main contention of Mr. Srinivasagopalachari for the appellant is that as default has been committed by Upendra Prabhu who was constituted trustee by the compromise decree, by virtue of the terms of that decree has lost all his rights, that thereupon Ramakrishna Prabhu his brother became entitled solely to the rights of the temple and that the clause in the decree.
6. That the plaintiff should take possession of the property accordingly, collect the produce thereof, pay the teerva of the same and perpetually get performed all the viniyogas confers on him the right to appoint his successor. We are unable to uphold this contention having regard to the terms of the compromise decree. It should be remembered that the property which was set apart for the performance of these trusts was not joint family property so as to give any rights of survivorship but property which Ramakrishna Prabhu and Upendra Prabhu got as reversioners. They were tenants-in-common and we think that Upendra Prabhu's son has as much right to take part in the appointment of trustees on the death of Upendra Prabhu and Ramakrishna Prabhu as either Ramakrishna Prabhu or his sons. The use of the words “perpetually get performed” does not by itself give an estate descendible to Ramakrishna Prabhu and his heirs. We need only refer to Raja Ram v. Narasinga(1), which refers to and follows the decision of the Privy Council in Tulsi Pershad Singh v. Ramnarain(2), where similar words in cases of grants were held not to convey a heritable estate. It should also be remembered that even when Upendra Prabhu commits default and Ramakrishna Prabhu takes possession, Upendra Prabhu or his heirs have to be consulted as regards the various acts relating to the trust and the repairs to property. The general rule of law is that the founder of a trust or his heirs have got the right to appoint trustees in case of failure of trustees, or where the deed of trust does not make provision for the appointment of trustees to succeed the incumbents mentioned in the deed. In the present case we do no think the rajinama decree contemplate) what is to happen on Ramakrishta Prabhu's death. No power is give under the decree to Ramakrishna Prahiu to appoint a successor. If Upendra Prabhu had not committed default; and continued, it cannot be said that under the deed his son would succeed to the exclusion of Ramakrishna Prabhu's branch. If the words “perpetually get performed” do not by themselves vest the trusteeship in Ramakrishna Prabhu's heir?, it is difficult to see how Ramakrishna Prabhu could, because he survived Upendra Prabhu, cat out Upendri Prabhu's branch. No authority has been cited for the proposition that in cases where two or more persons create a trust with properties belonging to each absolutely, the surviving trustees has the right to appoint trustees in the absence of any express power conferred on him. The general rule is that the heirs of the founder or founders have such a right.
7. It is argued by Mr. Srinivasagopalachari that we should apply the analogies of the law of powers in England and hold that the power of appointment goes by survivorship where there are several trustees. Assuming this is the law in England, we think it unnecessary to go into this question, as there is nothing in the compromise decree which provides for subsequent trustees, or how the trust should devolve on the death of Ramakrishna Prabhu and Upendra Prabhu. We are of opinion that the equitable rule is such cases will be to vest the power of appointment of the trustee or trustees in all the founders or their representatives and not to give it to one of such founders or his representatives, merely because he happens to survive the other trustee. We think the Subordinate Judge was right in holding that the nomination of the appellant as trustee was not valid.
8. We, however, think that in the circumstances of this case it is not necessary for us to dismiss the execution application as such a course would prejudice the trust.
9. The general rule of law is that no trust should fail or be prejudiced for want of a properly constituted trustee. The properties here are dedicated to the do and the execution is for the benefit of the idol and the trust constituted by the deed. So far as the conduct of the parties is concerned, it has been found that Srinivasa Prabhu who was allowed to be in ??? of the trust has been guilty persistent breaches of trust. It appears that Ramakrishna Prabhu and the present appellant have been doing their best to recover the properties for the trust and sea that the trusts are properly performed. The appellant's elder brother is said to be a lunatic. An order of the District Court has been produced which supports the allegation. As regards Upendra Prabhu's other sons, they have taken no steps to protect the interests of the trust. The dismissal of this application may lead to questions of limitation and to complicated proceedings. We think we have ample power to direct that execution be continued by any person who may be appointed as the next friend or the representative of the idol for carrying on the proceedings which relate to the recovery of the trust properties dedicated to the idol and to safeguard the properties recovered in execution pending the proper appointment of trustees. We think that the interest of the trust would be safeguarded by of in empowering the appellant to execute the decree and bring into Court all the moneys recovered in execution and to give security for the value of the move-able properties recovered. He will also give security for two years' mesne profits in respect of any immovable property he may recover. It will be open to the members of both the branches to appoint a trustee, failing which the only course would be for the persons interested to get a trustee appointed by appropriate legal proceedings. The properties recovered in execution by the petitioner would then be handed over to the trustee or trustees who may be legally appointed. We reverse the order of the lower Court.
10. As regards costs a the appellant has substantially failed in the contention raised by him, we think the proper order would be to direct each party to bear their own costs throughout.
P.R.S/D.D
11. Order set aside.
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