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Judgment
Kunhamed Kutty, J.—Plaintiffs 1 and 2 are the son and daughter and the third plaintiff is the widow of late Dr. J. Dhairyam, a retired
Superintendent of Government Mental Hospital. The defendant Dr. C.D. Dhairyam is another son of late Dr. Dhairyam. Deceased Dhairyam,
according to the plaintiffs, had opened a Mental clinic and Nursing Home after his retirement at No. 16/3 Sterling Road, Nungambakkam, which,
the plaintiffs claim, attained in due course great popularity and attracted patients even from foreign countries. The third plaintiff assisted her husband
in running the Nursing Home and clinic and attended to the needs of the patients. The late Dr. Dhairyam got the defendant trained in Psychiatry and
two other children, Antony Shamraj and Shanti Mrinalini, qualified in medicine with the desire that they should assist him in running the clinic. But
the late Dr. Dhairyam died on 30th September, 1956 leaving behind, his widow the third plaintiff, four sons and two daughters of whom one of the
sons, Christy Amritharaj died in 1963 and another, Antony Shamraj is in England. The plaintiffs say that subsequent to the death of their father
Christy Amritharaj and Joseph Kanmaraj (first plaintiff) and one of the daughters Naggi Amritraj relinquished and renounced their rights in the
properties of their father, and agreed to create a trust in respect of his estate including the clinic and nursing home and agreeably a trust dead was
executed on 19th October 1957 with plaintiffs, the defendant and deceased Amritharaj Dhairyam as trustees. Under this deed, all the properties of
late Dr. Dhairyam were transferred to the trustees to be held in trust for the beneficiaries, the plaintiffs, Christy Amritharaj Dhairyam and defendant,
subject to the limitations specified therein. Pursuant to this arrangement the trustees entered into possession and management of the estate, the
Clinic and Nursing Home and the defendant was paid an allowance of Rs. 500 a month which was subsequently raised to Rs. 650. Shamraj
Dhairyam did not return to India. The defendant was placed in charge of day-to-day work in the Clinic and Nursing home and the amounts
received were being paid over to the trustees. After the death of Christy Amritharaj in 1963, plaintiffs 1 and 2 became the sole trustees ; but the
defendant assumed a hostile attitude and wanted to be in sole control and management of the Clinic and Nursing home. He refused to pay the
collections to the trustees or the third plaintiff, set up adverse claims to the Clinic and declined to account to the trustees. In 1965, the defendant
filed a suit in the City Civil Court, for a declaration that the business of Dhairyam Mental Clinic and nursing home and its adjunct, Rehabilitation
Centre is exclusively his own and for restraining the plaintiffs from interfering in regard to them and filed I.A. 663 of 1965, for an interim injunction
restraining the plaintiffs from interfering with the running of the Mental Clinic and Nursing Home. The defendant has alleged in the suit that he is
solely entitled to the Clinic and nursing home and is not liable to render any account to any of the plaintiffs. This position is opposed to truth and
disregarding the solemn obligation undertaken by him under the trust deed. The City Civil Court passed an interim order in the exercise of its
inherent jurisdiction and while restraining the third plaintiff from discharging the customary and usual duties and plaintiffs 1 and 2 from performing
their functions as trustees expressed that it was so directing, in order to keep the object of the trust and to continue it.
The plaintiffs aver that since the power of the City Civil Court are limited they have to approach this Hon''ble Court for the usual remedies
available to them and that has necessitated institution of this suit under the Original Side Rules, for a decision of the questions relating to the
administration of the Trust. The questions in respect of which determination is thus sought to relate to the rights of plaintiffs 1 and 2 (1) to carry on
and manage the Clinic and Nursing Home and employ the necessary staff on such remuneration as they may decide, (2) to control, advise and
guide the defendant in regard to the day-today administration of the Clinic and Nursing Home ; (3) to collect moneys payable to the Clinic and
Nursing home and their right to make payments towards obligations ; (4) the right of the third plaintiff to a share in the net profits of the Clinic and
her right to receive 4/7 parts of the net income; (5) the right of the defendant to an allowance and one part of the net income (6) the right of the
plaintiffs to restrain the defendant to prevent them from exercising con trot over the running of the Clinic and Nursing home ; and (7) such other
questions incidental to the above questions.
The defendant does not admit that father Dhairyam started any Clinic and Nursing home. According to him, the small Clinic started by the father
became defunct and the present Clinic and Nursing Home was started by him. He filed the suit, O.S. 229 of 1965, in the City Civil Court, as the
plaintiffs attempted to interfere with his professional work and in C.M.A. 24 of 1965 filed by the plaintiffs against the order of interim Injunction,
the appellate court while dismissing the appeal, has directed the parties to act according to the terms of the compromise. The defendant contends
that the issues raised in this Originating Summons are directly and substantially in issue in the aforesaid suit. The family property consisted of only
the building and compound and not even for estate duty purposes was either the Nursing Home or the Clinic or the equipment valued as part of
father Dhairyam''s estate. The late Dhairyam never expressed any desire to constitute any family concern. Christy Amrithraj, Joseph Kantharaj and
Maggie Amritharaj never renounced any right in any property ; but got all that they needed from the mother who was in charge of the household in
the same compound. And, the plaintiffs have now joined after this defendant refuted to part with fail income with the vindictive object of ruining his
professional career.
The document dated 19-10-1957 is not a trust deed in any sense of the term. As the authors of the trust are the beneficiaries, the trustees are
co-tenants and the purpose of the trust is not in consonance with the object of any real trust. The document never came into operation and the
parties never acted upon the terms. There was no vesting of any property much less the Clinic and Nursing Home in the alleged trustees. The
second plaintiff has started a Backing Cases Industry in the very compound with a view to cause impediments to the defendants carrying on his
profession peacefully. The so called trustees never entered into possession and management of the Clinic and the defendant had never acted under
their control, guidance and advice. Out of deference to the third plaintiff, the mother, the defendant had given his earning to her to meet the
household expenses and conserve the balance for his benefit, but her leanings were towards her daughter, and, therefore, the defendant had to
refuse to part with his earnings.
In the very nature of things, the reliefs sought in the suit cannot be the subject-matter of originating summons. The defendant as admitted by the
plaintiffs has never been acting under the trust but has been claiming the Clinic and Nursing Home as his at least from 1863 without recognizing the
trust. If really the plaintiffs have a case that there is a valid and enforceable trust and they have rights thereunder, the matter has to be determined in
appropriate proceedings and not in an originating summons. The cause of action and the valuation also according to him are neither valid nor
correct and none of the reliefs is a matter to be decided in an originating Summons.
The point for determination is whether the questions raised can be determined in this suit by originating summons when substantially the same
questions are in issue between the parties in O.S. No. 129 of 1965 on the file of the City Civil Court wherein the present plaintiffs as defendants
there have entered appearance and filed written statements giving rise to as many as 11 issues of which issue 7 reads:
Is the clinic and Nursing Home part and parcel of the trust of a separate entity ?
The declaration prayed for in O.S. No. 229 of 1965 that the profession and business of "" Dhairyam''s Mental Clinic and Nursing Home
carried on by the defendant and the Rehabilitation Centre is an adjunct to the said profession is exclusively his and the defendants have no rights
whatsoever over them. There is also a prayer due for a permanent injunction restraining the present plaintiffs from interfering with or obstructing the
defendant in any manner whatsoever from carrying on his said profession. In answer, the plaintiffs filed written statements there contesting the
exclusive claims, made by the defendant and their contest was substantially rested on the trust deed dated 19th October, 1957 to which the
defendant was also a party. Other issues have also been raised in O.S. No. 229 of 1965 relating to the effect and the binding character of the trust
deed on the defendant herein whether he has committed any violation of the terms thereof ; whether he was carrying on his profession in his own
right or in derogation of the rights under the trust or whether he was an employee of the trust.
The trust deed was executed by the third plaintiff, the defendant, Antony Samraj and Shanti Mrinalini as beneficiaries and Chsristy Amrithraj,
Joseph Kantharaj (first plaintiff) and Maggie Nambikkai Amritharaj (second plaintiff) as trustees. The preamble to this document refers to the
trustees having renounced their interests, the father Dhairyam having purchased No. 16/3, Sterling Road built therein four main buildings and out
houses and started the Mental Nursing Home and Clinic with a desire that it should be continued by his wife and children, and the trustees having
agreed to the arrangement. The operative portion of this document purports to transfer all the properties described in the schedule, by the
beneficiaries to the trustees to hold in trust for the beneficiaries subject to the powers and limitations referred to in the document. The trustees are
to manage the Mental Nursing Home and clinic, employ the necessary staff, make the requisite purchases and carry on all dealings necessary and
incidental to the efficient management of the institution, with G.D. Dhariayam the defendant herein, in charge of the day-to-day administration with
the designation of ""Director"" but he and the other beneficiaries are to be under the control, advice and guidance of the trustees. The third defendant
is to be in immediate charge, control and management of the finance of the estate and is to inform the other trustees of the receipts and expenditure.
The defendant is to be paid an allowance of Rs. 500 a month but the right is vested in the trustees to reduce such allowance in case of deterioration
of the financial position. The Clinic is to be run for the profit of the beneficiaries and from out of the profit, the trustees can set apart such part as
they deem fit and proper for helping the needy relatives of father Dhairyam and for charity. The surplus net income after meeting the expenses
contemplated in paragraph 8 of the document is to be distributed among the beneficiaries as specified therein. Provision is made for the marriage
expenses of Mrinalini, and also for disposal when necessary of any portion of the estate for benefit of the beneficiaries The Trustees are to meet
and discuss the affairs of the Clinic and the estate once in a month when they are expected to scrutinise the accounts relating to Clinic and estate
and decide questions relating to the running of the Nursing Home and Clinic. In the event of any vacancy arising in the office of Trustees, the other
trustees can co-opt any other person as a co-trustee and the trust is to remain irrevocable for a period of forty years.
Though called a trust deed, the document is in effect a family settlement the only charity contemplated under the document being the help to be
rendered to the poor relations of father Dhairyam and spending on charity of such portion of the income as the trustees deem proper. Even this is
discretionary which the trustees might or might not enforce ; and all the reliefs now prayed for relate to the family members called beneficiaries.
Order 13of the Original Side Rules enable the trustees, under any deed or instrument interested in the relief sought as heir or legal
representative or a cestui que trust to take out the Originating Summons for determination of any of the questions set out in the said order and they
include questions affecting the rights claimed as such heir, legal representatives or cestui que trust. In this view of the matter it is perhaps competent
for the plaintiffs to seek the directions prayed for by them. But the question still is whether having regard to the, pendency of a suit in the City Civil
Court raising substantially the same question, it is just, proper as necessary for this Court to determine the questions raised by the plaintiffs.
Mr. Mohan Kumaramangalam had also drawn my attention to the definition of ''trust'' in the Trust Act in the course of his submission that the
matter really is not one for as originating summons. S. 3of the Act is defines ""trust"" as an obligation annexed to the ownership of property, and
arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another, or of another and the
owner ; the person who reposes or declares the confidence is called the author of the Trust ; the person who accepts the confidence is called the
trustee ; the person for whose benefit the confidence is accepted is called beneficiary and the subject matter of the trust is called trust property.
Every person capable of holding property could be a beneficiary and his beneficial interest includes his right against the trustee as the owner of the
trust property. The attempt of Mr. Kumaramangalam was to make out that the real object of a Trust has not been conformed to in the trust deed
before us, and therefore, an Originating Summons is not an appropriate remedy.
Dealing with Originating Summons, Orders on Pleading and Practice states with reference to the English Practice (at page 344, 18th Edn.) that
it is one of the four originating procedures and under the English Practice, except in the case of proceeding which must be commenced by writ
either as a result of the provisions of the rules or any act, proceed may be begun either by the writ or by originating summons as the plaintiff thinks
fit. When such summons first comes before the Master, he will give all necessary directions as to the further conduct of the proceedings as he
thinks best adapted to secure the just, expeditious and economical disposal thereof. The Master may himself deal with the matter if he has, under
the rules and the direction of the Judges from time to time, power so to do. Some matter must be dealt with by the Judge in person, for example,
the determination of questions of law in the construction of documents. But even where the Master has power, he may refuse to exercise it himself
and send the matter to the Judge. Any party has also the right to require him to send it to the Judge in person as in the case of interlocutory
proceedings in an action and under the same conditions. In a typical case, however, the master will adjourn the summons to the Judge without
expressing his opinion upon the matter, and may either adjourn it into open Court or into chambers. The procedure is primarily designed to deal
with questions of law or discretation arising upon facts substantially not in dispute, and indeed where there is any choice in the matter, it is wrong to
bring proceedings by Originating Summons if it is known that the facts are disputed. Osborn in his Concise Law Dictionary, 5th Edn. page 230,
states that proceedings for commencement by Originating summons are where the principal question is the construction of an Act, statutory
instrument deed, will contact or other document of some other question of law and when there is unlikely to be any substantial dispute of fact but,
sometime the procedure is obligatory even in cases where there may be very substantial disputes of facts, examples of which are given in Odger''s
Pleading and Practice at pages 348 and 349.
The Original Side Rules of our Court are largely modelled on English Practice and procedure and Mr. Kumaramangalam emphasised that
when, as in this case, the plea of the defendant is that the trust had never been acted upon and the defendant hits made an assertion to that effect,
matter cannot be decided in an originating summons. This however, is a case where, quite apart from the propriety of deciding the questions raised
by the Originating Summons, I am not prepared to agree with Mr. Kumaramangalam''s contention that the question mooted cannot, at all, be
raised by originating summons. It can partially be directed for reliefs specified in O. 13Original Side Rules (O. 45of the rules of 1927), But, as
pointed out by Ramaswami J. in Nagaratnammal v. Veeraraghava AIR 1954 Mad. 1008 in dealing with a case under the old rules, even in cases
falling under the clauses of that order Involving examination of witnesses, the Court in the exercise of its discretion may not dispose of complicated
questions of law and fact for the procedure was conceived and intended to be of a summary nature. No doubt a Court will in the exercise of its
discretion decide a question raised on the Originating Summons if it is satisfied that the defence raised is in frivolous and designedly intended to
drive the parties to a suit. The Court also will not decide a question on an Originating Summons if the decision on the question whichever way it
goes will not settle the litigation between the parties.
In Nacharamma v. Nadamuni Chetti (1947) 2 M.L.J. 333 a Bench of this Court considered the scope of the rule in O. 45, of the old Rules.
The decision was that the procedure under O. 45, by way of Originating Summons was only intended to enable the Court to decide questions of
construction of a Will when the decision of those questions whichever way it might go would settle the litigation between the parties.
Where, however, there are questions of fact which could be decided only by evidence and the defendant is in possession of property and the
construction of the will would not terminate the litigation between the parties and the rights of the parties would not be finally determined, the Court
should refer the parties to a suit and refuse to construe the will. It does sot follow that in every case in which a defendant raises some factual
contentions in an Originating Summons it must, of necessity be dismissed. Each case must be dealt with in regard to its own peculiar circumstances.
In Gokul Chand De and Others Vs. Gopi Nath Dey and Others, the Calcutta High Court held that where dispute between the parties could
not be disposed of merely by construction of the Deed of Trust and other questions like plea of estoppel, plea of adverse possession were
involved and the pleas, if sustained might render the question of construction unnecessary an Originating Summons was not a proper mode of
procedure. Questions on an Originating Summons should not as a rule, as laid down by the Full Bench in Bai Sarobhai v. Hussain Somji AIR 1936
Bom. 830 involve difficult and complicated points of law, and the same view was taken by Greaves, J. in Mitchell v. Mc Nill and Co. AIR 1927
Cal. 512 when he laid down that the procedure by Originating Summons is not applicable to a contentious matter of the nature of a claim by a
creditor to recover from the estate of the deceased whose estate is under administration and the procedure should be by suit.
Mr. Ramaprasada Rao for the plaintiffs relied on certain income tax returns furnished by the defendant as also the correspondence that passed
between the parties to emphasise that this is not a case where the defendant had not acted upon the trust and to urge that his present denial of the
trust is a dele bra to charge. In this context, he also relied on the observations of the Bench in S. Sriranga Nacharamma Vs. Rao Bahadur
Nadamuni Chetty and Another, that because the defendant raises some factual contention, the Originating Summons must, of necessity, be
dismissed. According to him, where a Court is asked to determine on a summons, the true construction of a written instrument, the fact that the,
parties may after the decision on the construction litigate further on a question of fact with which the summons is not concerned is not a sufficient
reason for the Court to refuse to determine such question of construction. This principle laid down by the Chancery Division in Earl of Harrowby
and another v. Leicester Corporation 114 L.T.R. 129 was also brought to my notice. But the question to be determined in this case as I have
already indicated is whether, when substantially the same questions are implied and are liable to be determined on evidence by a Court of
competent jurisdiction, it is necessary or even desirable to determine the said questions in an Originating Summons. As pointed out by Warrington,
J., in Lewis v. Green (1905) 2 Ch. D. 340, where questions both of fact and of construction were involved and a decision of the question of
construction would not, in whichever way they were decided, necessarily, put an end to the litigation an originating summons was not the proper
mode of procedure. With great respect, this is a case of similar nature since the same questions are pending between the parties for determination
in the City Civil Court. In the circumstances I am not inclined to determine the questions raised by the plaintiffs before a final decision is come to in
the suit in the City Civil Court between the parties. This suit is accordingly dismissed ; but in the circumstances, I make no order as to costs.