V. PRAKASH @ G.N.V. PRAKASH versus M/S. P.S. GOVINDASWAMY NAIDU & SONS’ CHARITIES REPRESENTED BY ITS MANAGING TRUSTEE & ORS. on 9 May 2022

948

SUPREME COURT REPORTS

[2022] 18 S.C.R.

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V. PRAKASH @ G.N.V. PRAKASH

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M/s. P.S. GOVINDASWAMY NAIDU & SONS’ CHARITIESREPRESENTED BY ITS MANAGING TRUSTEE & ORS.

B(Civil Appeal No. 3791 of 2022)

MAY 09, 2022

[VINEET SARAN AND DINESH MAHESHWARI, JJ.]

Trusts Act, 1882– Validity of Appellant’s claim to the office offounder trustee in the respondent-Trust– Held: The overwhelmingCevidence produced by the appellant in the form of Aadhaar Cardissued by the Government of India as also his Income Taxassessments in India based on the certification of CharteredAccountant of his fulfilling the requirement of ‘resident’ in terms ofs.6 of the Income Tax Act, 1961 has been taken to be of little valueDby the High Court after counting the number of days of theappellant’s stay in India and then questioning that the certificateswere not showing as to for how many days he was in MadrasPresidency–Also, appellant’s ownership and possession of propertyin India, including residential property; having bank accounts inIndia; being assessed as resident for the purpose of Income TaxEAct, 1961 have all been brushed aside by the High Court by merecount of number of days of stay in India– Mere holding of GreenCard of the United States of America cannot be treated as decisiveof the matter in the present case–When examining the matter fromthe point of view of spirit of Scheme of AdministrationgoverningFthe Trust, the concept of representation of the branch of foundertrustee needs to be respected and, in that regard, claim of thedescendant like the appellant cannot be lightly brushed aside by amere count of number of days of stay in India while ignoring allother features and factors showing his choice of staying in India–Trial Court rightly analysed the evidence on record and arrived atGa just conclusion in upholding the claim of the appellant to theoffice of founder trustee in the respondent-Trust as the representativeof the branch of ‘PSGNN’– Impugned judgment set aside – Judgmentand decree of the Trial Court restored – Thus, the appointment ofrespondent no.10 in the Trust stands annulled – Appellant entitledH

V. PRAKASH @ G.N.V. PRAKASH v. M/s. P.S. GOVINDASWAMYNAIDU & SONS’ CHARITIES

to hold the office of founder trustee representing ‘PSGNN’ branch–Income Tax Act, 1961– s.6 – Estoppel – Principle of res judicata.

Deeds and Documents– Rules of construction – Constructionof terms of Scheme of Administration (SOA) governing therespondent-Trust and their application to the facts of present case(more particularly regarding abode/residence of plaintiff-appellant)–Discussed – Interpretation of Statutes.

Words and Phrases – ‘resides’ – Discussed.

Allowing the appeal, the Court

1.1 The High Court seems to have approached the casefrom an altogether wrong angle and has proceeded on irrelevantconsiderations while ignoring the relevant factors and materialconsiderations. The High Court seems to have picked up theresidential requirement in the qualification for trusteeship in theScheme of Administration as being of strict physical presence,de hors the context and de hors the purpose.The overwhelmingevidence produced by the plaintiff-appellant in the form of AadhaarCard issued by the Government of India as also his Income Taxassessments in India based on the certification of CharteredAccountant of his fulfilling the requirement of ‘resident’ in termsof Section 6 of the Income Tax Act, 1961 has been taken to be oflittle value by the High Court after counting the number of daysof the appellant’s stay in India and then questioning that thecertificates were not showing as to for how many days he was inMadras Presidency. Even in that regard, the High Court, thoughreferred to the decision in Mst Jagir Kaur but failed to take noteof the ratio therein. The appellant’s ownership and possession ofproperty in India, including residential property; having bankaccounts in India; being assessed as resident forthe purpose ofIncome Tax Act, 1961 have all been brushed aside by the HighCourt by mere count of number of days of stay in India. ThisCourt is unable to endorse this approach.[Paras 23 and 24][980-A-E]

Mst Jagir Kaur &Anr. v. Jaswant Singh [1964] 2 SCR73– referred to.

1.2 In paragraph 21 of the impugned judgment, the HighCourt has observed that the spirit of the provisions prescribing AB

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Aqualification ought to be respected. With respect, it appears thatthe High Court in the first place seems to have missed out thefundamentals on the spirit of formation of trust and its Scheme ofAdministration. As noticed, the trust was established in the year1926 by the sons of Shri P.S. Govindaswamy Naidu and the trustwas actually named as “M/s. P.S. Govindaswamy and Sons’BCharity”. The Scheme of Administration, while envisaging ninetrustees, specifically provided for the four sons of Shri P.S.Govindaswamy as the founder trustees. Office of founder trusteehas been made a heritable one with the concept of having thehereditary trustee in the line of each of the founder trustee. UntilC01.01.1994, the appellant’s father Shri G.N. Venkatapathyremained a founder trustee after the demise of his father ShriP.S.G. Narayanaswami Naidu, one of the original founder trustees,who died in the year 1938. The hereditary trusteeship, in thespirit of Scheme of Administration, has continued in relation to

the lines of other original founder trustees too as the respondentDNos. 2, 3 and 4 are respectively representing the branches ofShri 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 wassubstituted by his son Shri G.N. Venkatapathy, it is noticed thatEafter the death of Shri G.N. Venkatapathy, his brother Shri V. Rajanwas taken as the founder trustee to represent this branch. Asnoticed above, there had been internal disputes, which croppedup after resignation of Shri V. Rajan and which led to litigationsand appointment of Shri Naren Rajan and later appointment ofShri V. Rajan again as founder trustee. As already noticed, withFthe demise of Shri Naren Rajan on 21.05.2015 and of Shri V. Rajanon 21.06.2017, it is the appellant alone who remains to be themale descendant to represent the branch of Shri P.S.G.Narayanaswami Naidu.When looking at the spirit of the Schemeof Administration of Trust, it would be a travesty of the SchemeGitself if in the presence of the appellant, the representation ofthis branch of the founder trustee is annulled or the position isshifted to someone else. Of course, this could happen if it isestablished beyond doubt that the appellant has incurred one ormore of the disqualifications. In this suit, no other disqualificationhas been alleged by the respondents against the appellant exceptH

his want of residence in Madras Presidency. This suggestion hasbeen effectively repelled by the appellant by production of cogentevidence and with specific assertion that he was residing in Indiasince 2010. When examining the matter from the point of view ofspirit of Scheme of Administration, the concept of representationof the branch of founder trustee needs to be respected and, inthat regard, claim of the descendant like the appellant cannot belightly brushed aside by a mere count ofnumber of days of stay inIndia while ignoring all other features and factors showing hischoice of staying in India.[Paras 25 and 25.1][980-E-H; 981-A-F]

1.3 As observed by this Court in Mst Jagir Kaur, ultimately,the question of residence in every case depends on the facts, butthe word ‘reside’ usually means something more than a flyingvisit or a casual stay. The appellant who has continuously been inIndia, apart from holding property and bank accounts in Indiaand also holding an Aadhaar Card, could least be said to be aperson visiting India casually or as a transit tourist.The HighCourt has posed a question that certificates do not disclose thatout of 979 days in seven years, how many days the appellant wasin Madras Presidency? Again, the approach of the High Courtdoes not commend to us. It has not been shown if the appellanthad not been available in the area in question so as to effectivelyparticipate in the administration and management of the Trust.Mere holding of Green Card of the United States of Americacannot be treated as decisive of the matter in the present case.TheHigh Court has made adverse comments on the justifiedobservations of the Trial Court that in view of the scientificadvancements, the word ‘reside’ should not be given that meaningas was understood a century back. With respect, suchobservations of the High Court are again, not in conformity withthe principles of construction of a document.[Paras 25.2-27][981-F-H; 982-A-C]

1.4 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 thatgeographically or demographically, there does not exist anylocation as of today which could be termed as “MadrasPresidency”. Obviously, such an approach would be incorrect and AB

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Athe area that was known as “Madras Presidency” at the time ofdrafting of the document in the year 1926 and framing of theScheme of Administration in the year 1936 would be taken noteof and whatever area is now referable to the said erstwhile“Madras Presidency” area would be relevant; and the residencehas to be with reference to the said area. The point relevant forBthe present purpose is that the expression “Madras Presidency”is not being construed in its literal sense and is construed withreference to its present meaning.Taking cue from the aforesaid,when the verb “reside” is taken up to understand its meaningand purport with reference to the object of the document, itsCpresent day meaning and connotation cannot be lost sight of. Ofcourse, if a person has given up his residence and haspermanently settled at some other place, the question may ariseabout his fulfilment of the condition but, at the same time, theexpression “resides” cannot be given a literal meaning as if aperson like the plaintiff-appellant having multiple places ofDresidence would incur disqualification for the purpose of the deedin question if not permanently located at a particular place.Whilenot approving the approach of the High Court in this matter,particularly in relation to the construction of the terms of SOA, alittle furthermay be observed. The words and expressions in theEdeeds or statutes are preferably provided their contextual andcontemporary meaning. In this process of construction, the wordsand expressions are not viewed as fossil remains; rather theyretain the organic character and do take their meaning from allthe surroundings. For that matter, a particular word like “resides”could carry multiple different connotations with reference to theFtime or period of its interpretation; and connotations may bedifferent than those understood about 100 years back. When aparticular word or expression in any document is to be operatedand applied, all the relevant characteristics available in praesentihave to be kept in view for a meaningful and purposefulGconstruction. Of course, that meaning should not do violence tothe real intent and purpose.The question at hand is of assigninga logical, contextual and contemporary meaning to a particularexpression. It is one thing to alter the term of a document andcannot be equated with the process of assigning a purposefulmeaning to a particular expression. In the true rules ofH

construction, the words are always assigned the meaning whichstand in tandem with their context, while assuring that theassigned meaning serves the purpose.The requirements ofphysical residence, with the rapid advancement of the means ofcommunication and transport cannot be ignored particularly whenthe purpose of the term ‘residence’ in document in question is toensure participation in the affairs of the trust effectively, as andwhen required. The intent of the Trial Court in its observationshad been only this much that in view of the present-dayadvancement, literal meaning of residence, by requiring actualphysical presence every day and every moment is not correct.There is no hesitation in endorsing the views and findings of theTrial Court. [Paras 27.1-29.1][982-C-H; 983-A-F; 984-A-B]

Directorate of Enforcement v. Deepak Mahajan (1994)3 SCC 440 : [1994] 1 SCR 445 – referred to.

1.5 Prima facie, the principle of estoppel may not operateagainst the contesting respondents. The plaintiff-appellant seeksto invoke the principle of estoppel essentially with reference tothe fact that after the judgment dated 16.04.2013 in O.S. No. 631of 2012, he was unanimously chosen as the founder trustee on18.04.2013. The said decision of the continuing founder trusteesto induct the appellant to represent his branch was essentiallypursuant to the order of the Trial Court but, ultimately the decisionof the Trial Court did not sustain itself and was reversed by theHigh Court in its judgment dated 30.06.2014 in A.S. No. 178 of2013. In that position, the said decision of thefounder trustees toinduct the appellant on 18.04.2013 could not have operated asestoppel against them.However, prima facie, what is applicableto the question of estoppel would not directly apply to the questionof res judicata. The entitlement of the rival claimants to the officeof founder trustee representing Shri P.S.G. Narayanaswami Naidubranch was a matter innate and interwoven with the question asraised before the High Court in A.S. No. 178 of 2013. The HighCourt distinctly recorded in its judgment dated 30.06.2014 thatthere was no dispute about qualification of the rival claimantswhich included the present appellant in his capacity as 10thdefendant in the said matter. The present contesting respondents AB

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Awere indeed parties to the said proceedings and particularly theTrust was a party thereto and was duly represented by theManaging Trustee. When the question of qualification ordisqualification could have been raised and was not raised by thepresent contesting respondents, it is difficult to say that theprinciples of res judicata and at any rate, those of constructive resBjudicata in terms of Explanation IV to Section 11 of the Code ofCivil Procedure, 1908 would not apply.However, these aspectsarenot being elaboratedfor the reason that in the present suit, theplaintiff-appellant has categorically established the fact that hewas indeed eligible and was not suffering from the allegedCdisqualification.Viewed from any angle, the judgment of the HighCourt remains unsustainable. The Trial Court had rightly analysedthe evidence on record and arrived at a just conclusion inupholding the claim of the appellant to the office of founder trusteein the respondent-Trust as the representative of the branch ofShri P.S.G. Narayanaswami Naidu. Impugned judgment and orderDdated 04.03.2021 is set aside; and the judgment and decree ofthe Trial Court dated 12.10.2020 are restored. Consequently,the appointment of respondent No. 10 in the Trust shall standannulled and the appellant shall be entitled to hold the office offounder trustee representing P.S.G. Narayanaswami Naidu branch.EAs a necessary consequence of findings and conclusions, the claimof the applicant of I.A. No. 80383 of 2021 is rendered redundant.That application also stands rejected.[Paras 32.1-34][984-E-H;985-A-F]Yogesh Bhardwaj v. State of U.P. & Ors. (1990) 3 SCCF355 : [1990] 2 SCR 666, Inder Singh Ahluwalia v. PremChand Jain & Ors. 1993 SCC OnLine Del 12; MakhijaConstruction & Engg. (P) Ltd. v. Indore DevelopmentAuthority & Ors.: (2005) 6 SCC 304–referred to.

Case Law Reference

G[1990] 2 SCR 666referred toPara 18.3[1964] 2 SCR 73referred toPara 24[1994] 1 SCR 445referred toPara 28CIVIL APPELLATE JURISDICTION : Civil Appeal No.3791 of2022.H

V. PRAKASH @ G.N.V. PRAKASH v. M/s. P.S. GOVINDASWAMY

From the Judgment and Order dated 04.03.2021 of the High Courtof Judicature at Madras in A.S. No.978 of 2020.

Mrs. V. Mohana, Sr. Adv., Vidyashankar, B. Raghunath, Mrs. N.C. Kavitha, Mrs. Ayushma Awasthi, Sriram P., Advs. for the Appellant.

V. Giri, M. N. Rao, Gopal Sankaranarayanan, Sr. Advs., Ms.Suveni, S. Thananjayan, Ms. Promila, Ms. Jaswanthi Anbuselvan, Ms.Aaina Verma, Anoop Prakash Awasthi, P. R. Ramakrishnan, M. S. VishnuSankar, Biju Raman, I. Abrar Md. Abdulla, B. Karunakaran, Advs. forthe Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

Table of Contents*Preliminary .........................................................................2Relevant factual matrix and background ........................3The respondent-Trust and its constituents ..........3First round of litigation and relevant events ........7Second round of litigation and relevant events ..11Third round of litigation & subject-matter before thisCourt ................................................................................. 14Findings of the Trial Court ................................... 19Findings of the High Court ................................... 22Other claimants .............................................................. 27Rival Submissions ............................................................ 28The appellant’s claim rightly accepted by the TrialCourt ................................................................................. 32The questions of res judicata and estoppel ................... 38Conclusion ........................................................................ 41Preliminary Leave granted.

2. This appeal, by the plaintiff of a suit for declaration andinjunction, is directed against the judgment and order dated 04.03.2021,as passed by the High Court of Judicature at Madras[1] in Appeal SuitNo. 978 of 2020 whereby, the High Court has allowed the appeal filedby the contesting defendants (respondent Nos. 1 to 8 herein) and has set 1 For short, ‘the High Court’.

* Ed. Note : Pagination in the Table of Contents is as per the original judgment.

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Aaside the judgment and decree dated 12.10.2020, as passed by thePrincipal District Judge, Coimbatore[2], in Original Suit No. 160 of 2018.

2.1 In the suit aforesaid, the plaintiff-appellant sought the relief ofdeclaration that he was entitled to be appointed as the founder trustee ofthe public trust M/s. P.S. Govindaswamy Naidu & Sons’ CharitiesB(respondent No. 1 herein)[3] as per its Scheme of Administration[4], forbeing the surviving male descendant of the branch represented by hislate father. The claim of plaintiff-appellant was resisted by the contestingrespondents with reference to the fact that he was a Green Card Holderof the United States of America and was not fulfilling the requirementsof ‘residing within the area of Madras Presidency’, as envisaged by theCScheme of Administration. The Trial Court held that the plaintiff-appellantwas indeed a resident of the area in question and was duly qualified tohold the position of founder trustee of the respondent-Trust. The HighCourt, however, took the view opposite with reference to the fact thatthe plaintiff-appellant was continuously holding a Green Card and hadDstayed in India less than half of the time in the past; and the assertion ofhis intent of permanently residing in India was contradicted by theevidence on record. Therefore, the High Court set aside the judgmentand decree of the Trial Court.

3. Though a seemingly straightforward question as regardsEconstruction of the relevant terms of SOA governing the respondent-Trust and their application to the facts of present case (more particularlyregarding abode/residence of plaintiff-appellant) is involved in the matterbut, the position of founder trusteeship in the respondent-Trust hasundergone various rounds of litigation and disputes, some of which havetheir own bearing in the present matter. Thus, a somewhat lengthyFreference 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 intoGcomprehension the salient features related with the respondent-Trustand its constituents.

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2 For short, ‘the Trial Court’.

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

4 For short, ‘SOA’.

4.1. The respondent No. 1 - M/s P.S. Govindaswamy Naidu &Sons’ Charities - is the Trust wherein the appellant has staked the claimto be recognised as one of the founder trustees.

4.2. The respondent-Trust was initially administered as per thetrust deed registered on 25.01.1926, which was executed by four personsnamely, (1) Shri P.S.G. Venkataswami Naidu, (2) Shri P.S.G. RangaswamiNaidu, (3) Shri P.S.G. Ganga Naidu, and (4) Shri P.S.G. NarayanaswamiNaidu. For the better and efficient administration, the general body ofthe Trust passed a resolution on 26.11.1934 to take legal opinion andfollowed it up with a request to the Principal Subordinate Judge,Coimbatore in Original Suit No. 145 of 1935 to frame a Scheme ofAdministration. The Principal Subordinate Judge, Coimbatore, by his orderdated 29.02.1936, in supersession of the earlier Scheme, provided for acomprehensive Scheme of Administration of the respondent-Trust. ThisScheme, in its Chapter IV under the title “THE BOARD OFTRUSTEES”, provided that there shall be a Board of Trustees consistingof 9 members out of which, the above-mentioned four persons wererecognised as ‘Founder Trustees’ while the rest were referred to as‘Elected Trustees’. It was also provided that one of the founder trusteesshall be the ‘Managing Trustee’. It was further provided that a foundertrustee shall be entitled to hold office for life. The other provisions asregards term of office of elected trustees are not relevant for the presentpurpose.

4.3. The relevant provision in SOA, which forms the subject-matterof debate in the present case, is contained in the opening part of Clause(B) of Chapter IV, as regards qualification for trusteeship, and reads asunder: - “QUALIFICATION AND DISQUALIFICATION FORTRUSTEESHIP (A) QUALIFICATIONS FOR THETRUSTEESHIP

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)

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Aand Clause (D) (1) of SOA, which may also be reproduced for readyreference as under: - “(C)VACANCIES:

1) Whenever a vacancy arises, the managing Trustee or any otherTrustee on becoming aware of the fact of such vacancy shallbring it to the notice of the Board at the next monthly meeting ofthe board. The vacancy shall be filled up within two monthsthereafter.

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2. Whenever a Trustee shall during the continuance of his officecease to possess the qualifications necessary for holding the officeof Trustee or becomes disqualified to hold the office of Trustee,the managing trustee or any other Trustee on becoming aware ofthe fact shall bring it to the notice of the Board and the Boardafter notice to the Trustee concerned and after such enquiry asmay be necessary declare that a vacancy has occurred statingthe grounds of such declaration and thereupon elect a Trustee inhis place under the provisions herein contained.

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3. Whenever a Trustee is guilty of breach of trust of gross neglectand breach of duty, the Board shall have power after due andproper notice of the charge to the Trustee concerned and afterEgiving him an opportunity to answer the charges against himinvestigate in to the matter and after enquiry record its findings onthe said charges giving reasons for its conclusions. If it finds thatby a resolution passed by a majority of not less than six of whomtwo will be Founder trustees, he has been guilty of breach of trustFor gross neglect and breach of duty involving loss or damage tothe charges, then on such a finding being recorded, the Trusteeconcerned shall vacate and shall be deemed to have vacated hisoffice as trustee. The Trustee to be removed will leave at once.Neither the Trust nor the Board nor any of the Trustees shall beliable to any trustee or trustees so in respect of acts done bonafideGin pursuance of these provisions and any person elected to theoffice of the Trustee shall be deemed to contract with the trustand with each of his Co-trustees to waive all rights of action inrespect of acts done bonafide by the Board or any trustee in thisbehalf.

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4. The office of a Trustee shall become vacant by resignation onthe part of Trustee and notification of the same to the Board or tothe Managing Trustee.

5. Any member of the board who fails to attend five consecutivemeetings shall cease to be a member of it but maybe reappointedto 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 FounderTrustee, an adult male descendant in the male line of the originalfounder Trustee if existing and competent according to the rulesherein 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 shallbe appointed as Trustee by the Board of Trustees. If such person,however, could not be appointed thereto by reason of his not havingthe necessary qualifications for Trustee or by reason of his beingdisqualified for Trusteeship then the remaining Founder. Trusteesshall proceed to fill up the vacancy in the same manner as if suchperson did not exist; but the person so appointed to the office shallhold office only till the disability ceases and on such disabilityceasing the person entitled to succeed as herein before mentionedshall be appointed to the place of trustee.

(c) If there are more than one in such line competent to holdoffice, according to the provisions herein contained, then they shallchoose from among themselves and the person so selected shallbe appointed to the place. If there is disagreement among themthen the opinion of the majority shall prevail. If there is no suchmajority concurring in such selection of one among them or ifthey do not select one from among themselves within six weeksof such vacancy then the remaining Founder trustees shall eitherunanimously or by a majority select one from such competitorsand the person so selected shall be appointed to fill the vacancy.A person who is competent to hold office of a Founder Trusteewho has however expressed his unwillingness to accept the officeshall be precluded from putting forward his rights again but hisright to exercise his vote in the selection of a founder Trustee inhis line shall remain unaffected.

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A(d) If there be no competent person in such line or if the onlyperson eligible for appointment expresses his unwillingness toaccept the office the office shall be filled up by the remainingfounder Trustees by selecting one competent and willing from theother lines. The person so selected shall be appointed as Trusteeand he shall be subject to the provisions herein contained holdBoffice for life.

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(e) If at any time there shall be a person in the line of any of theFounder Trustees competent to hold office under these rules hisrights of succession shall belong to him and he shall be eligible forappointment to the office of a Founder Trustee notwithstandingCthat by reason of the absence of a person competent and willingin that line the remaining Founder Trustee selected a person fromthe other lines.”

5. Pursuant to the aforesaid Scheme of Administration, the Trustwas conducting its affairs but, in the year 1938, one of the founder trusteesDShri 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, hisson Shri G. N. Venkatapathy (father of the appellant) held the position offounder trustee in the respondent-Trust until his demise on 01.01.1994.Thereafter, his brother Shri V. Rajan became the founder trustee,Erepresenting the branch of Shri P.S.G. Narayanaswami Naidu and heldthe position as such until 25.04.2012 when he submitted a letter ofresignation and nominated his son Shri Naren Rajan to be appointed as afounder trustee. This act of Shri V. Rajan triggered the dispute and itwas alleged that as a consequence of resignation, he had lost his right toFnominate or vote in the selection process of the hereditary trustee of thebranch represented by him. This had been the genesis of three rounds oflitigation revolving around the office of founder trustee representing thebranch of Shri P.S.G. Narayanaswami Naidu.

First round of litigation and relevant eventsG6. The dispute as to the rights of Shri V. Rajan to nominate orvote after his resignation from the office of founder trustee became thesubject matter in O.S. No. 631 of 2012 filed by him and his son ShriNaren Rajan against the Trust, the trustees and the present appellantShri V. Prakash @ G.N.V. Prakash, who was also a probable candidateto represent the family of Shri P.S.G. Narayanaswami Naidu as founderH

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 thatsuit) was not qualified to hold the office of founder trustee but this assertionwas not taken forward by the plaintiffs. Hence, the Trial Court went onto decide the other issues involved in the matter, particularly as regardsthe 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 foundertrustees should make the selection between Shri Naren Rajan and theappellant Shri V. Prakash @ G.N.V. Prakash. Thereafter, on 18.04.2013,the founder trustees unanimously chose the appellant for the said officeof founder trustee representing the branch of Shri P.S.G. NarayanaswamiNaidu. Accordingly, the appellant continued to hold the office of foundertrustee and attended the meetings of the Trust.

6.2. However, in appeal, being A.S. No. 178 of 2013, the HighCourt, by its judgment and order dated 30.06.2014, held that though ShriV. Rajan had lost his right to contest for the office of founder trustee, buthis right to vote remained intact and once he had such right to vote,appointment of Shri Naren Rajan with his vote cannot be denied. Duringthe course of consideration of the appeal, the High Court also took noteof the fact that there was no dispute on point that both Shri Naren Rajanand Shri V. Prakash (present appellant) were qualified to be consideredfor the post of founder trustee and it was also admitted that they did notincur any disqualification in that regard. In view of its findings, the HighCourt issued mandatory injunction to the defendants 1 to 9 of that suit toappoint 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 thepresent appellant (10[th] defendant in the suit in question) could be noticedin necessary details. The High Court formulated the points fordetermination in the following terms: - “23. On the basis of the above submissions, the following pointsfor consideration arise in this appeal suit:-

1. Whether the first plaintiff lost his competency and becameineligible to elect his successor by reason of his resignation asheld by the trial court?

2. Whether the declaratory relief sought for by the plaintiffsthat the Board Meeting of the Trust held on 25.04.2012 and30.07.2012 are illegal and not binding on the plaintiffs?

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3. Whether the plaintiffs are entitled to the relief of mandatoryinjunction directing the defendants 1 to 9 to appoint the 2nd plaintiffas one of the trustees representing the branch of PSGNarayanasamy Naidu?

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4. Whether the defendants 1 to 9 are to be restrained fromBappointing the 10th defendant as representing the branch of PSGNarayanasamy Naidu?

5. Whether the defendants 1 to 9 are injected from taking policydecision in the ensuing board meeting?”

6.2.2. The aforesaid point No. 4, as regards restraining the otherCdefendants from appointing the present appellant to represent the branchof Shri P.S.G. Narayanaswami Naidu, had its co-relation with the basicquestions involved in point Nos. 1 and 3 i.e., right of the 1[st] plaintiff ShriV. Rajan to vote for selection of founder trustee after resigning and themandate for the other defendants to appoint the 2[nd] plaintiff Shri NarenDRajan as the founder trustee. In that context, the fundamental requirementwas of the competence and qualification of the two rival claimants tothe said office of founder trustee i.e., the 2[nd] plaintiff Shri Naren Rajanand the present appellant Shri V. Prakash; and in that regard, it had beenthe specific case of all the parties that both of them were qualified to beconsidered for the said office. This aspect of the matter was repeatedlyEtaken note of by the High Court, as could be noticed from paragraphs 30and 32 of the said judgment, which read as under: -

“30. As regard the qualification of the plaintiffs and the 10thdefendant are concerned, it is admitted that both the plaintiffs andthe 10th defendant are qualified to be considered for the post ofFfounder Trustees. It is also admitted that they did not incur anydisqualification from holding that post. According to the learnedSenior counsel appearing for the respondents 1 to 3 and 10 and asper the findings of the learned trial Judge, though the first plaintiffwas qualified, after having submitted his resignation, he sufferedGdisqualification and therefore, he was not competent to contest tothe office of the founder Trustee or in other-words, he lost hiscompetency by reason of his resignation to elect the founderTrustee and only those persons, who are competent to hold thepost are entitled to choose one from among themselves to elect orselect a founder Trustee as per Clause [c] of Chapter IV(D) (1)

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and therefore, excluding the first plaintiff, who lost competency,the persons who are eligible to be considered to the office of thefounder Trustee representing PSG Narayanasamy Naidu are the2nd plaintiff and the 10th defendant and therefore, the trial courtwas right in directing the other Trustees, namely the plaintiffs 2 to4 to select one among them and as there was consensus amongthem.

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32. According to me, the learned trial Judge as well as the learnedSenior counsels appearing for the respondents 1 to 3 and 10 havenot properly understood the difference between the qualificationsprescribed as per Chapter IV(B) and the process of filling up thevacancy as stated in Chapter IV(D). As stated supra, there is nodispute that the plaintiffs and the 10th defendant are qualified tobe considered for the post of founder Trustees and the question tobe considered is whether the first plaintiff incurred disqualificationby reason of the resignation and thereby, lost his competency tohold the office in future.”

6.2.3. In regard to the core question as to the competence of ShriV. Rajan to be a member of electoral college, the High Court, of course,returned the finding that he was competent and his only disqualificationwas of contesting for the office of founder trustee after havingrelinquished the same. Thus, the High Court put its seal of approval onthe selection of 2[nd] plaintiff Shri Naren Rajan by the majority comprisingof the vote of 1[st] plaintiff and consequently, injuncted the other defendantsfrom appointing the present appellant (10[th] defendant in said suit) torepresent the branch of Shri P.S.G. Narayanaswami Naidu.

6.3. The appellant attempted to question the judgment of the HighCourt before this Court but, the petition seeking special leave to appeal,being SLP(C) No. 26503 of 2014, was dismissed by this Court on26.09.2014.

6.4. Thus, the said Shri Naren Rajan came to be appointed asfounder trustee, representing P.S.G. Narayanaswami Naidu branch ofthe family.

6.5. Unfortunately, on 21.05.2015, the said Shri Naren Rajan metwith his untimely death due to a road accident.

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ASecond round of litigation and relevant events

7. After the death of Naren Rajan on 21.05.2015, vacancy againarose and the appellant V. Prakash filed a suit, being O.S. No. 1225 of2015 before the District Munsif Court, Coimbatore, for recognizing himas a founder trustee for the reason that the other surviving male memberBShri V. Rajan was prohibited to hold the office of founder trustee, asheld in the earlier round of litigation.

8. While the said suit filed by the appellant was pending, a separatesuit in O.S. No. 1952 of 2015, filed by Shri G. Rangaswamy (respondentNo. 9 herein) seeking injunction against the Trust in the matter of fillingCup of vacancies. An order granting injunction therein and verymaintainability of this suit were questioned by the contesting trusteesbefore the High Court in Civil Revision Petition No. 665 of 2010 andthey 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.D

8.1. The said revision petition and the interlocutory applicationsfiled therein were considered together by the High Court in its orderdated 26.06.2015. This order carries several interesting features, asnoticed infra.

E8.2. The said revision petition was filed by the present respondent-Trust through its managing trustee Shri L. Gopalakrishnan, who himselfjoined as petitioner No. 2 and was also joined by another founder trusteeShri G.R. Karthikeyan and by one elected trustee Shri D.Lakshminarayanasamy[5].F8.3. At the outset, it was submitted on behalf of the plaintiff-ShriG. Rangaswamy (respondent No. 9 herein) before the High Court thathe wanted to withdraw the suit as filed and, therefore, the civil revisionpetition was unnecessary. However, these submissions were opposedby the learned counsel appearing for the revisionists (contestingrespondents herein) as also by learned counsel appearing for the saidGShri V. Rajan. The High Court, looking to the circumstances of the case,even while recording the statement made on behalf of the plaintiff thathe would withdraw the suit, proceeded to examine the other contentionsof the parties wherein the respective claims were asserted on behalf ofthe present appellant and the said Shri V. Rajan, for being appointed as H5 The said revisionists are respondent Nos. 1 to 4 herein.

founder trustee to represent P.S.G. Narayanaswami Naidu branch. Itwas asserted on behalf of the appellant that he alone was competent forthe vacancy in question for Shri V. Rajan having sustained disqualificationby resignation. While refuting these submissions, it was asserted by thelearned counsel appearing for Shri V. Rajan that the appellant was aGreen Card Holder of U.S.A. and was visiting India rarely and he wasdisqualified for having converted into Christianity. The stand taken onbehalf of the revisionists was that they would select a person based onthe qualification of two rival claimants i.e., the appellant and Shri V.Rajan.

8.4. The High Court proceeded to observe that the issue regardingthe appointment of the trustee representing the line of Shri P.S.G.Narayanaswami Naidu was the basic issue which the Court would bedeciding so that final decision could be taken by the existing foundertrustees. Thereafter, the High Court referred to various aspects of thematter, including the reason of Shri V. Rajan’s earlier resignation that itwas 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 Courtheld that Shri V. Rajan was not suffering from any disqualification andat the same time, directed the Board of Trustees to consider the claimsof Shri V. Rajan and the appellant V. Prakash and then to take appropriatedecision 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 inSLP(C) Nos. 23316-23318 of 2015, which was dismissed by this Courtby the order dated 04.01.2016 as the main suit itself was withdrawn.

8.7. Subsequently, the said Shri V. Rajan was appointed againstthe vacancy of founder trustee and continued to function as such.However, as the providence would have it, the said Shri V. Rajan alsoexpired 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 appellantremained the sole surviving male member from the branch of P.S.GNarayanaswami Naidu’s family and by the letter dated 30.06.2017, heintimated his willingness to serve as founder trustee. Thereafter, on01.08.2017, clarifications were sought from the appellant by the Board A

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Aof Trustees in reference to his qualifications to hold the office as foundertrustee. In the detailed letter dated 10.08.2017, appellant brought thejudgment and decree in O.S. No. 631 of 2012 and A.S. No. 178 of 2013to the notice of the Trust.

9.1. Thereafter, on 07.11.2017, the Board replied by stating that inBA.S. No. 178 of 2013, the High Court had not given any categoricalfinding regarding the qualification of the founder trustee. The appellantwas further called upon to furnish proof of his permanent residence inIndia because the Board was of the view that SOA mandated that for aperson to be qualified for the post of founder trustee, he must be“permanently” residing in Madras.C

9.2. Subsequently, the appellant sent another detailed letter dated22.11.2017, stating that the finding of the High Court regarding hisqualification was categorical and he was duly qualified even in terms ofthe requirement of residence in the light of his Indian Passport, AadhaarCard, property documents, bank accounts and previous appointment byDthe Board itself.

9.3. Again, the appellant received a communication dated16.02.2018 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 applicationEfor withdrawing the suit on 02.02.2018, being I.A. No. 264 of 2018, withliberty to institute fresh proceedings.

10. Even when all the aforementioned correspondence did notyield the desired result, the appellant filed the present suit in O.S. No.160 of 2018 before the Principal District Judge, Coimbatore for the reliefFof declaration that he was entitled to be recognized as the founder trusteeas per the SOA and also for perpetual injunction.

10.1. While deciding I.A. No. 272 of 2018, filed by the contestingrespondents for rejection of the plaint in O.S. No. 160 of 2018, the TrialCourt, by its order dated 27.04.2018, directed the respondent-Trust toGdecide the eligibility of the appellant with already furnished documents.This decision however was made subject to the result of the suit. Therelevant part of the said order dated 27.04.2018 reads as under: - “....Already the issue between the parties was with regard to thecitizenship of the plaintiff in USA. The document that was soughtHby the petitioner was explained by the plaintiff herein. so this Court

directs the petitioner in I.A.272/2018 to decide the eligibility ofthe plaintiff with the already furnished document and with theexplanation given by the plaintiff dated 22.11.2017 in respect ofthe citizenship of USA within two weeks from the date of thisorder and report to this Court on 04.06.2018. Until such time, anydecision taken by the petitioner is subject to the result of this suit.Further the plaintiff is agreed to produce the 1st documenttomorrow (28.04.2018).”

10.2. Accordingly, the Board of Trustees, in its meeting held on27.07.2018, considered the claim of the appellant and, after scrutinisingthe documents, rejected his claim to the office of founder trustee on itsview that the founder trustee must be permanently residing in MadrasPresidency as per SOA; and the appellant, being a Green Card Holderof U.S.A., was not qualified for the office of hereditary trustee as perChapter IV Clause (B)(a)(ii) of the SOA. On 21.08.2018, the decisionof Board of Trustees was placed before the Trial Court by filing a memoalong with minutes of the meeting.

10.3. Thus, after going full circle of communications andproceedings, the matter was before the Trial Court for adjudication.

11. The plaintiff-appellant submitted before the Court that theconduct of the trustees has been mala fide and unconscionable in notconsidering him qualified to be a founder trustee and adding therequirement of “permanent” residence. It was further submitted thatthe Board of Trustees had violated the mandate of SOA which providedthe outer limit of 60 days to fill the vacancy in the office of foundertrustee. The appellant further submitted that in the light of previouslitigation whereby respective Courts had declared him duly qualified andalso his previous appointment as a founder trustee, the Board of Trusteeswas not justified in denying his candidature. The appellant also statedthat ‘Green Card’ was a mere privilege granted to him by virtue of hismarriage to a US citizen and was not an evidence of citizenship. Hefurther contended to be a resident and citizen of India and submitted hisIndian Passport, Aadhaar card, Bank accounts and other documents tosupport his claim.

11.1. On the other hand, respondent Nos. 1-8 submitted that thesuit was not maintainable and denied the claim of appellant by contendingthat the judgment dated 16.04.2013 in O.S. No. 631 of 2012 was onrecast issues, without any decision on the issue of qualifications of the AB

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Aappellant. Reference was made to page 10 of the said judgment that hadbeen as under: - “Both sides chose to leave those issues (issues on disqualificationof Mr. Naren Rajan and Mr. Prakash) open as could be gatheredduring the course of the arguments.Accordingly, the issues areBrecast as below”.

11.1.1. It was further submitted that in A.S. No. 178 of 2013, theHigh Court did not give any specific finding on the issue of qualificationand merely observed by way of obiter dicta that Shri Naren Rajan andthe appellant were qualified to be considered for the post of founderCtrustee. As regards the previous appointment of the appellant on18.04.2013, it was submitted that the appointment was conditional uponthe proof of permanent residence of the appellant in Coimbatore, TamilNadu; and the appellant being a Green Card holder of U.S.A. was notqualified to be appointed as a founder trustee as per Chapter IV Clause(B) of SOA.D

11.2. After considering the respective pleadings of the parties,Trial Court framed twelve issues. The relevant issues for the presentpurpose could be noticed as under: - “1. Whether the plaintiff is having necessary qualification for theEpost of founder trustee of the 1st defendant, in terms of the schemeof administer of the 1[st] defendants?

2. Whether the averments of the defendants is that the plaintiff isdisqualified from being appointed as a Founder Trustee of the 1stdefendant as he is a Green Card Holder of the United States ofAmerica I a permanent Resident of USA?

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3. Whether the contentions of the defendants that the suit is laidon non existent provision in the scheme of administration dated29-02-1936 in O.S.No.145/1935 framed by the Court of PrincipalSubordinate Judge, Coimbatore, is correct or not?

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8. Whether the plaintiff is entitled to be recognized as the foundertrustee of the 1st defendant trust in the vacancy caused by thedemise of Mr.V.Rajan?

9. Whether the plaintiff is entitled to permanent injunction as prayedfor?

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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 arenull and void?”

11.3. After taking the evidence and having heard the parties, theTrial Court proceeded to decide the relevant issues in its judgment dated12.10.2020.

Findings of the Trial Court

12. After a detailed analysis of the material placed on record asalso the previous litigations, the Trial Court decided the question ofqualification to be appointed as founder trustee in favour of the appellant.A few of the relevant observations and findings of the Trial Court asoccurring in paragraphs 40 and 44 of its judgment could be profitablyreproduced 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 arethe plaintiffs. The said suit was filed seeking for the relief ofdeclaration challenging the validity of the meeting of Board ofTrustees of the 1[st] defendant trust and other reliefs. In the saidsuit the plaintiff herein has been arrayed as 10[th] defendant andthe defendants herein were also arrayed as defendants. The saidsuit was ultimately dismissed with the direction to the Board ofTrustees that it shall choose one from among the 2[nd] plaintiff (NarenRajan) and the 10[th] defendant (V.Prakash @ G.N.V.Prakash, theplaintiff herein) to represent the branch of late.PSG NarayanasamyNaidu in the Board consistent with the spirit of SOA. In the saidsuit though the Rajan and Naren Rajan pleaded about the allegeddisqualifications of the plaintiff herein, later on, they did not pressthe said plea. In fact, both sides choose to leave those issuesopen. The 1[st] defendant trust or any other defendants did not raiseany plea about the alleged disqualifications of the plaintiff. Eventhough the issues were recasted, the learned Additional DistrictJudge, after satisfying the qualification of the plaintiff herein, arrivedthe said decision.

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A44. Hence, this Court is of the considered view that the plaintiff’squalification, to be appointed as a founder trustee has been affirmedby the Judicial proceedings. The said judicial proceedings reachedits finality. In the earlier proceedings, the defendants did neverraise any objections with regard to the qualification of the plaintiff.Moreover, in view of the judgment passed in Ex.A.2, the plaintiffBwas selected as Board of Trustee and the plaintiff had effectivelyserved as a Board of Trustees from 8-04-2013 to 26-06-2015. Hehad participated in the Board meetings and has contributed hisknowledge to the benefit and development of the 1[st] defendanttrust. The said factum has been proved vide the documentsCEx.A.37 to Ex.A.47. Further, this Court has perused the Ex.A.9and Ex.A.10, wherein the 1[st] defendant trust did not say anythingabout the alleged disqualification of the plaintiff. Further, thePlaintiff was examined as PW.1 and deposed before the Courtthat he is an Indian citizen and resident of Coimbatore.”

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D12.1. On the issue of ‘Green Card’, the Trial Court perused theconcerned legislation and literature of the U.S.A., wherein the permanentresident card has been described as a document issued to immigrantsunder the Immigration and Nationality Act (INA) as evidence that theholder has been granted the privilege of residing permanently in the UnitedStates. The holders of the Green Card are known as Lawful PermanentEResidents (LPR). They are the citizen of another country but are entitledto apply for U.S. citizenship. The Court came to the conclusion that‘Green Card’ was a mere privilege and did not terminate the Indiancitizenship automatically. Relevant extracts of the findings of the TrialCourt would read as under: -F“

“46. It is apposite to mention here that PW.1, in his evidence hasdeposed that, in the year 2010 itself, he shifted from USA to Indiapermanently. Further he retired in the year 2009 in USA. He deniedthe suggestion that he cannot stay more than six months at a timein India. He has deposed that he is holding Indian Passport and heGhas not applied or obtained USA Passport. Further, he deposedthat the even though plaintiff could apply for USA citizenship, hedid not apply for the same. Hence, as rightly pointed out by thelearned counsel, ‘green card’ is a privilege. It is one of the way toattain 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, theplaintiff is a green card holder, his Indian citizenship will not bedeclined automatically.

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48. Hence, this Court holds that holding green card is a privilege.Green card holder does not automatically lose his citizenship ofhis mother country. Hence, this Court decides that plaintiff’s havinggreen card, would not be a bar to be a founder trustee.”

12.2. The Trial Court accepted the appellant’s right to berecognised 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 injunctionrestraining the defendants from interfering with the right of the appellantas a founder trustee. The Trial Court held and directed as under: -

“53. In view of the above, this Court hold that the plaintiff is entitledto be recognized as the founder trustee of the 1[st] defendant trustin the vacancy caused by the demise of Mr.V.Rajan. Since, the1[st ]defendant trust has not acted as per the SOA, the plaintiff isentitled the relief of declaration that is to be recognized the foundertrustee of the 1[st] defendant trust in the vacancy caused by thedemise of Mr.V.Rajan, consequently, the plaintiff is entitled thepermanent injunction restraining the defendants from any mannerinterfering with the right of the plaintiff as a founder trustee of the1[st] defendant trust and in his role, responsibilities and duties as afounder trustee of the 1[st] defendant trust.

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56. Admittedly, the scheme framed in the year 1936, at that timethere were very limited transport facilities. Nowadays due toadvancement of scientific technology and development of humanresources, the world has shrunk into a Global Village. Admittedly,the plaintiff’s wife is a citizen of USA. The plaintiff served inUSA. Now he has retired from service, he has winded up hisbusinesses at USA. Due to the developments in the Air transporthe can travel from USA to India within a day or two. Due toCovid-19 pandemic, international conferences, seminar, BoardMeetings etc., all are being conducted through video conference.In fact, in this case also, both side counsels had argued through A

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Avideo conference. From the above imply that even if the plaintiffresides in USA, he could effectively discharge his function asFounder Trustee and even he can very well participate in theBoard 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 otioseBfor the present days and the said provision requires suitableamendment. Hence, this Court is of the considered view thatEx.A.1. Scheme of Administration is to be amended suitably. Theplaintiff counsel has submitted that the 1[st] defendant trust alone isentitled to take steps to amend the SOA. Till the plaintiff isCappointed as a Board of Trustee, he has no power to take steps toamend the Scheme of Administration. The power or authority toamend the scheme of administration lies only with the 1[st] defendanttrust.”

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Findings of the High CourtD

13. Being aggrieved by the judgment and decree so passed by theTrial Court, the contesting respondents approached the High Court byway of First Appeal in A.S. No. 978 of 2020.

13.1. Learned counsel for the contesting respondents extensivelyassailed the judgment of the Trial Court in declaring the appellant qualifiedEfor trusteeship on the basis of non-existing provision of the SOA. It wassubmitted that as per Chapter IV Clause (B)(a)(ii) of SOA, one of thequalifications for the post of founder trustee was that the personconcerned ought to be a resident within the area of Madras Presidency;and the expressions “he resides in the Madras Presidency” had specificFconnotations and reasoning in reference to the extensive supervisionwork required to be carried out by the Trustee.

13.2. Per contra, learned counsel for the present appellantsubmitted that doctrine of res judicata was applicable even against theco-defendants. It was further emphasised that the earlier appointmentGof the appellant, when the Board of Trustee was called upon to electamongst the descendants of Shri P.S.G. Narayanaswami Naidu duringthe earlier rounds of litigation, was a sufficient instance for the operationof estoppel by conduct and to forbid the respondents to change theirstand.

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13.3. After considering the respective submissions of the parties,High Court observed that qualification of the founder trustee withreference to residence in Madras Presidency was the bone of contention;and held that the Trial Court erred in applying the principles of res judicataand estoppel in the present suit. The High Court observed thus: - “12. The point for consideration in the appeal is whether the plaintiffproved before the Trial Court he resides within the MadrasPresidency, to be qualified for the post of Trusteeship in theAppellant Trust?

13. ”Madras Presidency” when the scheme framed in the year1936, during the British India period included most of the presentSouth India states and part of Orissa. After Independence andthe limitation of states on linguistic lines City of Coimbatore wherethe 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 agreen card holder of USA will fall under the meaning of a personresides in Madras Presidency. Though this issue was framed inthe earlier round of litigation (i.e) O.S.No.631 of 2012, the saidissue 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 of2012 expressly made clear it will not advert to this issue. So,whether the plaintiff resides in Madras Presidency in the presentsuit will not be hit by Section 11 of C.P.C This Court is of the viewthat the earlier appointment of the plaintiff as Founder Trusteewas also done in the midst of litigation and there was no opportunityfor the parties to prove either way whether holding the greencard will disqualify a person therefore, the principle of estoppelalso cannot be applied in this case. This Court wants to makeclear that the suit ought not to have been decided on the point resjudicata or estoppel. Settling the legal objections regarding themaintainability of the suit as above, the point of qualification asper scheme now tested in the right of evidence placed.”

13.4. Thereafter, the High Court observed that the appellant wasa permanent resident of the U.S.A., as reflected from his Green Card.He was holding Aadhaar Card to raise the presumption of his residenceat the address mentioned therein and he was an income tax assessee in A

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AIndia as well as in the U.S.A. However, as per Ex.A24 and Ex.A25, theletters given by Chartered Accountant on 12.02.2018 and 07.01.2019respectively, for the period 2014 to 2019, the appellant had been out ofIndia for more than half of the period even though he alleged to haveshifted permanently to India in the year 2010. After taking note of thesefacts, High Court observed that as per the spirit of SOA, the plaintiff-Bappellant has failed to prove his animus to reside in Madras Presidencyand could not be termed as a resident. The High Court observed andheld as under: -

“21. Going by his own admission in the cross examination, he hasdeposed that in the year 2010 itself he shifted to India permanently.CWhereas, Ex.A.24 and Ex.A.25 for the period 2014 to 2019, hehad not been in India for more than half the period. It is notthat heshould not go abroad and he should always stay within thePresidency of Madras, when the qualification had been prescribedthough a century old unless until it is amended, the spirit the ofDprovision should be respected. The plaintiff who claims Trusteeshiphave miserable failed to place evidence that he live in MadrasPresidencyand he continue to have the animus to reside in MadrasPresidency.

22. The plaintiff still holds his green card, most of the time he wasEnot staying in India even according to his own evidence. Basedon his conduct of attending the board meeting earlier, when hewas holding the Trusteeship will though give an impression thathe will be physically available when the meeting is conducted, butas said in the Supreme Court judgment and relied by the plaintiffcounsel, the animus of the person to reside in India is importantFand only the animus has to be looked into. Here is the case wherethe plaintiff say he has shifted to India from U.S.A permanentlyand reside in India since 2010, but his own evidence indicates thatonly less than 50% of the period he was in India and he holdsgreen card, which show he is a permanent resident of USA. HeGhas not given up his green card. His animus to be a resident ofU.S.A is made explicit. In the cross examination, he has assertedthat he has no intention to give up his green card. His admissionon oath as well as his conduct does not show that he neither onfact resides within Madras Presidency nor have any animus tolive within Madras Presidency. Animus of a person can be inferredH

only by the conduct. Nobody can say the plaintiff should not havethe green card or have a business in foreign country and accountin a foreign country, but when he wish to hold the Trusteeship ofa Trust, which mandates that the trustee must reside within MadrasPresidency and if he is not able to satisfactorily prove that heresides within Madras Presidency, it is not obligatory on the partof the other Trustees to induct him to the Trust, contrary to theprovision of the scheme of administration.

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26. The learned counsel appearing for the respondent/plaintiffwould seriously contend that the respondent/plaintiff is a residentof India as defined under income tax Act and he has all animus tostay in India permanently. Though such statement is made in thecourse of arguments, evidence placed by respondent/plaintiff doesnot support the said statement. As pointed out earlier, therespondent/plaintiff had stayed in India less than 50 % and hisintention to live in Madras Presidency permanently is not fortifiedby his conduct. His statement on oath that from 2010 he ispermanently residing in India is also falsified by its own documentEx.A.24 and Ex.A.25.”

13.5. The High Court further observed that Trial Court had givena wide interpretation to the word “resides” in the light of scientificadvancements but, such a change or amendment was not permissible incollateral proceedings and that could only be done via appropriateamendment to the clause in the SOA. The High Court said, - “24. Any terms found in the written document not in contrary tolaw to be understood the way it is stated and not to be supplementedunless there is ambiguity. Here is a clause which says the FounderTrustee must reside within Madras Presidency. The word -resides-as per Oxford dictionary, means -live in a particular place-. Theword to be understood as it is defined and cannot be substitutedwith the word -stay- or -animus to reside- or domicile or citizenship.

25. The Trial Court Judge has thought that in view of scientificadvancement the word reside should not be given the meaninghow it was understood 100 years ago. I fear, few years later,some other Judges may think the restricting the post of Trusteeshipto male member is against gender Justice so it should be read as A

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Afemale also since in general clauses Act he includes she, menincludes women so male includes female. This may be the opinionof the Judges, but the persons who manage the Trust should comeforward to amend the clause, if they feel it is out dated or notconvenient. Without appropriate amendment to the clause in thescheme of administration which is the out come of the schemeBframed under a Court decree, the terms to the scheme cannot bemanipulated.”

13.6. In view of above, the High Court set aside the judgmentand decree of the Trial Court and held that the appellant was not residingwithin the area of Madras Presidency as per the qualifications prescribedCunder the SOA and hence, was not eligible for the office of the foundertrustee. 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 isinadequate to qualify him as a person who resides in MadrasDPresidency. However, not a disqualification it is always open tothe respondent/plaintiff to place before the Board of Trustees,records to show he resides within Madras Presidency and qualifiedto hold the trusteeship.

29. For the said reasons, this Court finds that the trial CourtEjudgment holding that the plaintiff/respondent resides within MadrasPresidency and qualified to hold the post of Trustee is contrary tohisown admission and other evidence, hence liable to be set aside.Accordingly, this Appeal Suit is Allowed. The trial Court judgmentis set aside. Consequently, connected Civil Miscellaneous Petitionis also closed. No costs.”F

14. The plaintiff-appellant has approached this Court beingaggrieved by the judgment and order dated 04.03.2021 so passed by theHigh Court and that is how the matter is before us for determination ofthe basic question relating to the validity of the appellant’s claim to theoffice of founder trustee.G

Other claimants

15. Before adverting to the rival submission of the main contestingparties, appropriate it would be to take note of a few facts related withtwo other claimants to the said office of founder trustee in the respondent-HTrust.

15.1. The petition seeking leave to appeal was taken up forconsideration on 01.07.2021 when it was informed on behalf of thecontesting respondents that Shri Narayan Karthikeyan had beenappointed as founder trustee on 14.05.2021 on the vacancy in question.In the given set of circumstances, the plaintiff-appellant was permittedto join the said newly appointed trustee as respondent No. 10 and whileissuing notice, status quo with regard to composition of the trustees wasdirected to be maintained.

15.2. The said respondent No. 10 is none other but son of ShriG.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 areon record as respondent Nos. 7 and 8 respectively. It has been submittedby the respondent No. 10 that he came to be nominated after the appellantwas found ineligible because the three founder trustees decided tonominate one of the eligible members from the remaining three familybranches of founder trustees; and accordingly, a decision was arrived atto appoint him as one of the trustees.

16. During the pendency of SLP, on 14.07.2021, an applicationfor intervention (I.A. No. 80383 of 2021) also came to be filed on behalfof one Dr. D. Padmanabhan, who would assert his own right to beappointed as a trustee. The applicant has pointed out the relationship ofrespondent No. 10 with the other existing trustees and has submittedthat 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 contributedtowards development of the activities of the Trust, particularly relatedwith empowerment of education; and his late father held the status ofManaging Trustee from 1972-1978. The applicant submits that he wishesto be a part of the Trust for the purpose of contributing towards itsgrowth so that the institutions pioneered by his father scale greater heights.

17. As regards the above-mentioned two claimants, suffice it toobserve that their respective claims to the office in question could betaken up for consideration only if the claim of the appellant is negativedand he is held ineligible to hold this office. Having said so, we may revertto the core of the matter with reference to the rival submissions.

Rival Submissions

18. Learned senior counsel for the appellant has submitted thatthe High Court has wrongly reversed the judgement of the Trial Court A

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Awhereby the appellant was considered fulfilling the requirement of‘residence’ as per the SOA. The Trial Court was justified in taking noteof previous conduct of the respondent Trust as well as previous judicialproceedings. The Trial Court was also justified in considering the GreenCard as a mere privilege and not a bar operating against the appellant,so as to prevent him from being appointed as a founder trustee.B

18.1. It has been contended by the learned senior counsel for theappellant that the principles of res judicata and estoppel are of greatimportance in the matter at hand, and the contentions on these principlesshould not have been cursorily rejected by the High Court. In support,reliance is placed on several decisions of this Court.C

18.2. The learned counsel would further submit that it wasindependently proved by the appellant before the Trial Court that he wasa resident of the area in question and also had the required animus toreside thereat. His Aadhaar Card, Indian Passport, bank certificates,certificates issued by Chartered Accountants are sufficient to prove hisDresidence and animus, and also to qualify him to hold the office of thefounder trustee.

18.3. The learned counsel has argued that any period of physicalpresence, however short, may constitute residence provided that it is nottransitory, fleeting or casual, as was observed by this Court in YogeshEBhardwaj v. State of U.P. & Ors.: (1990) 3 SCC 355. The very factthat appellant retired in 2009, shifted to India in 2010, and has not appliedfor citizenship of the U.S.A. till date, duly proves his animus. In supportof these contentions, reliance is placed on several decisions, includingthose in Inder Singh Ahluwalia v. Prem Chand Jain & Ors.: 1993FSCC OnLine Del 12, and Mst Jagir Kaur & Anr. v. Jaswant Singh:(1964) 2 SCR 73.

19. Learned counsel for the proforma respondent No. 9 hassupported the claim of the appellant and has submitted that the TrialCourt, after considering all the aspects, had rightly held the appellantGqualified for the office of founder trustee, being the only male descendantavailable in the family branch of Shri P.S.G. Narayanaswami Naidu.Thus, he ought to be appointed the founder trustee as per the SOA. Thelearned counsel has further submitted that the qualification of theappellant was never disputed by the Board in earlier proceedings. Therewas a sudden change of stand by the Board, which is mala fide andHunjustified.

20. Per contra, learned senior counsel for respondent Nos. 1-4and 10 has submitted that the High Court has rightly set aside the judgmentof the Trial Court. The bar of res judicata has no application in thepresent matter because the appellant’s qualification had never been amatter directly in issue and was never decided on merits in previousrounds of litigation. Furthermore, the bar of estoppel cannot operateagainst the respondent-Trust because the previous appointment of theappellant was on the condition of submission of proof of permanent shiftingto Coimbatore. The learned senior counsel would further submit that theissue of Green Card qua the residence in India is a pure question of lawand hence, principle of estoppel cannot be invoked in the present matter.

20.1. Learned senior counsel has contended that the appellant isnot qualified to be a founder trustee as per Chapter IV Clause (B) of theSOA. A Green Card is officially known as a Permanent Resident Cardand the holder of this card cannot stay outside U.S.A. beyond one yearwithout re-entry permit. The appellant has himself deposed in his cross-examination about his intention of not giving up his Green Card. He is apensioner in U.S.A.; has a driving licence; and is an income tax assesseein U.S.A. Thereby, appellant has completely failed to establish his animusto be a resident of India.

21. Learned senior counsel for respondent Nos. 6-8 has also madethe submissions in parallel lines and has contended that the principle ofres judicata cannot be applied as the issue of qualification was notdecided on merits and in earlier litigation, there was no conflict of interestbetween the respondent-Trust (defendant No. 1 in O.S. No. 631 of 2012)and the appellant (defendant No. 10). Thereby, essential conditions forthe application of res judicata between the co-defendants as laid downby this Court in Makhija Construction & Engg. (P) Ltd. v. IndoreDevelopment Authority & Ors.: (2005) 6 SCC 304 are not fulfilledand present suit is liable to be dismissed.

22. Having given thoughtful consideration to the rival submissionsand having examined the material placed on record, we are clearly ofthe view that this appeal deserves to succeed and the decree of the TrialCourt 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 HighCourt in the impugned judgment impels us to observe that the High Court A

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Aseems to have approached the case from an altogether wrong angle andhas proceeded on irrelevant considerations while ignoring the relevantfactors and material considerations. The High Court seems to have pickedup the residential requirement in the qualification for trusteeship in theScheme of Administration as being of strict physical presence, de horsthecontext and de hors thepurpose.B

24. The overwhelming evidence produced by the plaintiff-appellantin the form of Aadhaar Card issued by the Government of India as alsohis Income Tax assessments in India based on the certification ofChartered Accountant of his fulfilling the requirement of ‘resident’ interms of Section 6 of the Income Tax Act, 1961 has been taken to be ofClittle value by the High Court after counting the number of days of theappellant’s stay in India and then questioning that the certificates werenot showing as to for how many days he was in Madras Presidency.Even in that regard, the High Court, though referred to the decision inMst Jagir Kaur (supra) but failed to take note of the ratio therein. TheDappellant’s ownership and possession of property in India, includingresidential property; having bank accounts in India; being assessed asresident for the purpose of Income Tax Act, 1961 have all been brushedaside by the High Court by mere count of number of days of stay inIndia. With respect, we are unable to endorse this approach.

E25. In paragraph 21 of the impugned judgment, the High Courthas observed that the spirit of the provisions prescribing qualificationought to be respected. With respect, it appears that the High Court in thefirst place seems to have missed out the fundamentals on the spirit offormation of trust and its Scheme of Administration. As noticed, thetrust was established in the year 1926 by the sons of Shri P.S.FGovindaswamy Naidu and the trust was actually named as “M/s. P.S.Govindaswamy and Sons’ Charity”. The Scheme of Administration, whileenvisaging nine trustees, specifically provided for the four sons of ShriP.S. Govindaswamy as the founder trustees. Office of founder trusteehas been made a heritable one with the concept of having the hereditaryGtrustee in the line of each of the founder trustee. Until 01.01.1994, theappellant’s father Shri G.N. Venkatapathy remained a founder trusteeafter the demise of his father Shri P.S.G. Narayanaswami Naidu, one ofthe original founder trustees, who died in the year 1938. The hereditarytrusteeship, in the spirit of Scheme of Administration, has continued inrelation to the lines of other original founder trustees too as the respondentH

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 diedin the year 1938 and was substituted by his son Shri G.N. Venkatapathy,it is noticed that after the death of Shri G.N. Venkatapathy, his brotherShri V. Rajan was taken as the founder trustee to represent this branch.As noticed above, there had been internal disputes, which cropped upafter resignation of Shri V. Rajan and which led to litigations andappointment of Shri Naren Rajan and later appointment of Shri V. Rajanagain as founder trustee. As already noticed, with the demise of ShriNaren Rajan on 21.05.2015 and of Shri V. Rajan on 21.06.2017, it is theappellant alone who remains to be the male descendant to represent thebranch of Shri P.S.G. Narayanaswami Naidu.

25.1. When looking at the spirit of the Scheme of Administrationof Trust, in our view, it would be a travesty of the Scheme itself if in thepresence of the appellant, the representation of this branch of the foundertrustee is annulled or the position is shifted to someone else. Of course,this could happen if it is established beyond doubt that the appellant hasincurred one or more of the disqualifications. In this suit, no otherdisqualification has been alleged by the respondents against the appellantexcept his want of residence in Madras Presidency. This suggestion hasbeen effectively repelled by the appellant by production of cogentevidence and with specific assertion that he was residing in India since2010. In our view, when examining the matter from the point of view ofspirit of Scheme of Administration, the concept of representation of thebranch of founder trustee needs to be respected and, in that regard,claim of the descendant like the appellant cannot be lightly brushed asideby a mere count of number of days of stay in India while ignoring allother 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 ora casual stay. The appellant who has continuously been in India, apartfrom holding property and bank accounts in India and also holding anAadhaar Card, could least be said to be a person visiting India casuallyor as a transit tourist.

26. The High Court has posed a question that certificates do notdisclose that out of 979 days in seven years, how many days the appellant AB

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Awas in Madras Presidency? Again, the approach of the High Court doesnot commend to us. It has not been shown if the appellant had not beenavailable in the area in question so as to effectively participate in theadministration and management of the Trust. Mere holding of GreenCard of the United States of America cannot be treated as decisive ofthe matter in the present case.B

27. The High Court has made adverse comments on the justifiedobservations of the Trial Court that in view of the scientific advancements,the word ‘reside’ should not be given that meaning as was understood acentury back. With respect, such observations of the High Court areagain, not in conformity with the principles of construction of a document.C

27.1. If at all the rule of literal construction is applied literally, theterm in question about residing within “Madras Presidency” would itselfbe treated as redundant for the simple reason that geographically ordemographically, there does not exist any location as of today whichcould be termed as “Madras Presidency”. Obviously, such an approachDwould 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 ofthe Scheme of Administration in the year 1936 would be taken note ofand whatever area is now referable to the said erstwhile “MadrasPresidency” area would be relevant; and the residence has to be withEreference to the said area. The point relevant for the present purpose isthat the expression “Madras Presidency” is not being construed in itsliteral 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 theFobject of the document, its present day meaning and connotation cannotbe lost sight of. Of course, if a person has given up his residence and haspermanently settled at some other place, the question may arise abouthis 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 disqualificationGfor the purpose of the deed in question if not permanently located at aparticular place.

28. While not approving the approach of the High Court in thismatter, particularly in relation to the construction of the terms of SOA,we may observe a little further. The words and expressions in the deedsHor statutes are preferably provided their contextual and contemporary meaning. In this process of construction, the words and expressions arenot viewed as fossil remains; rather they retain the organic characterand do take their meaning from all the surroundings. For that matter, aparticular word like “resides” could carry multiple different connotationswith reference to the time or period of its interpretation; and connotationsmay be different than those understood about 100 years back. When aparticular word or expression in any document is to be operated andapplied, all the relevant characteristics available in praesenti have to bekept 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 evengone to the extent of suggesting a proposition in paragraph 25 of theimpugned judgment which, to say the least, does not stand to logic. TheHigh Court has observed that if the construction of sentence or wordswas to be made with reference to the present-day scenario, sometimelater some Judge might think that restricting the trusteeship to malemember was against gender justice and it should be read to includefemale too. With respect, we are unable to endorse this approach. Thehypothesis as suggested by the High Court is of the process of alteringthe term of a document. The question at hand is of assigning a logical,contextual and contemporary meaning to a particular expression. It isone thing to alter the term of a document and cannot be equated with the process of assigning a purposeful meaning to a particular expression. Inthe true rules of construction, the words are always assigned the meaningwhich stand in tandem with their context, while assuring that the assignedmeaning serves the purpose.

29.1. The requirements of physical residence, with the rapidadvancement of the means of communication and transport cannot be 6 In the case of Directorate of Enforcement v. Deepak Mahajan: (1994) 3 SCC 440this Court has pointed out that the words are not passive agents or mathematicalsymbols so as to carry the same value and meaning the same thing at all times. ThisCourt has said, “93. It is apposite, in this context, to refer to the following passage found inChapter 4 in the book titled The Loom of Language:

“Words are not passive agents meaning the same thing and carrying the samevalue at all times and in all contexts. They do not come in standard shapes andsizes like coins from the mint, nor do they go forth with a decree to all the worldthat they shall mean only so much, no more and no less. Through its ownparticular personality, each word has a penumbra of meaning which no draftsmancan entirely cut away. It refuses to be used as a mathematical symbol.””

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Aignored particularly when the purpose of the term ‘residence’ in documentin question is to ensure participation in the affairs of the trust effectively,as and when required. The intent of the Trial Court in its observationshad been only this much that in view of the present-day advancement,literal meaning of residence, by requiring actual physical presence everyday and every moment is not correct. We have no hesitation in endorsingBthe views and findings of the Trial Court.

The questions of res judicata and estoppel

32. After the discussion and analysis foregoing, we have arrivedat a clear conclusion that the contesting respondents had been unjustifiedCin questioning of the eligibility of plaintiff-appellant to hold the office offounder trustee with reference to his Green Card and want of permanentresidence in the area in question. This had been the finding of the TrialCourt which we have no hesitation in restoring, while setting aside thecontra conclusion of the High Court on the merits of the principal issueinvolved in the matter. That being the position, the other arguments ofDthe parties in regard to res judicata and estoppel need not even be goneinto because, in our view, the result which the appellant seeks to derivefrom the operation of these principles has nevertheless been reached inthe present case with reference to the evidence led herein. Thus, we donot propose to elaborate on the issues of estoppel and res judicata asEraised 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 contestingrespondents. The plaintiff-appellant seeks to invoke the principle ofestoppel essentially with reference to the fact that after the judgmentFdated 16.04.2013 in O.S. No. 631 of 2012, he was unanimously chosenas the founder trustee on 18.04.2013. The said decision of the continuingfounder trustees to induct the appellant to represent his branch wasessentially pursuant to the order of the Trial Court but, ultimately thedecision of the Trial Court did not sustain itself and was reversed by theHigh Court in its judgment dated 30.06.2014 in A.S. No. 178 of 2013. InGthat position, the said decision of the founder trustees to induct theappellant on 18.04.2013 could not have operated as estoppel againstthem.

32.2. However, in our prima facie opinion, what is applicable tothe question of estoppel would not directly apply to the question of resH

judicata. The entitlement of the rival claimants to the office of foundertrustee representing Shri P.S.G. Narayanaswami Naidu branch was amatter innate and interwoven with the question as raised before theHigh Court in A.S. No. 178 of 2013. The High Court distinctly recordedin its judgment dated 30.06.2014 that there was no dispute aboutqualification of the rival claimants which included the present appellantin his capacity as 10[th] defendant in the said matter. The present contestingrespondents were indeed parties to the said proceedings and particularlythe Trust was a party thereto and was duly represented by the ManagingTrustee. When the question of qualification or disqualification could havebeen raised and was not raised by the present contesting respondents, itis difficult to say that the principles of res judicata and at any rate,those of constructive res judicata in terms of Explanation IV to Section11 of the Code of Civil Procedure, 1908 would not apply.[7] However, weare not elaborating on these aspects for the reason that in the presentsuit, the plaintiff-appellant has, in our view, categorically established thefact that he was indeed eligible and was not suffering from the allegeddisqualification.

Conclusion

33. Viewed from any angle, we are satisfied that the judgment ofthe High Court remains unsustainable. In our view, the Trial Court hadrightly analysed the evidence on record and arrived at a just conclusionin upholding the claim of the appellant to the office of founder trustee inthe 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 isallowed; 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 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 matterdirectly and substantially in issue has been directly and substantially in issue ina former suit between the same parties, or between parties under whom they orany of them claim, litigating under the same title, in a Court competent to trysuch subsequent suit or the suit in which such issue has been subsequentlyraised, and has been heard and finally decided by such Court.*********Explanation IV.- Any matter which might an and ought to have been madeground of defence or attack in such former suit shall be deemed to have been amatter directly and substantially in issue in such suit.”

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Arestored. Consequently, the appointment of respondent No. 10 in theTrust shall stand annulled and the appellant shall be entitled to hold theoffice of founder trustee representing P.S.G. Narayanaswami Naidubranch. 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.B

The parties shall bear their own costs throughout.

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Divya Pandey and Amarendra Kumar(Assisted by : Pragya Samal, LCRA)

Appeal allowed.

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