plaintiff No.4 did not come up to the expectation of late Madanlal, as he was entertaining the evil designs right from the beginning, his name was removed totally from the trust and in his place defendant No.1 was appointed as Secretary of the Trust as per the amended trust deed, dated 26.06.1985. After the amended trust deed the board of trustees decided to stop functioning of the Dharmasala and utilized the entire premises for running the hospital. Since the object of creating family trust to render service to the public at large and keeping that in view as a primary concern it was felt in the beginning to open Dharmasala, hospital and students hostel to render service to the people. Further, under the amended trust deed defendant No.1 is competent to function as the President of the Trust and has been functioning as such after the death of Madanlal and plaintiff No.4 cannot claim that he can serve as a President of the suit trust and the accounts of the trust are maintained by the 1st defendant trustees. Once plaintiff No.4 is removed from the trusteeship by resolution dated 02.05.1982 and the trust is reconstituted and having kept quiet all the years, he cannot file the suit. In spite of the same the plaintiff has not chosen to question the trust deed. Therefore, unless plaintiff No.4 removal from the trusteeship is declared as invalid, he cannot be declared as a trustee of plaintiff No.1 trust. The lower court also framed issue No.1 and additional issue No.3 specifically on the objection raised by the defendant. Therefore, we do not see any merit in any of the contentions advanced by the learned counsel for the appellant. All the judgments on which reliance is placed by the learned counsel for the appellant are misplaced to the facts of the present case. In the light of the conclusions reached by us, the finding recorded by the court below on issue No.1 and additional issue No.3 that plaintiff No.4 is not entitled to declaration without seeking a consequential relief has to be upheld. 22. In the result, the C.C.C.A. is dismissed. There shall be no order as to costs.


IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD

 

 

 

PRESENT

 

HON’BLE SRI JUSTICE A.GOPAL REDDY
AND
HON’BLE SRI JUSTICE K.S.APPA RAO

CITY CIVIL COURTS APPEAL No: 49 of 2000

 

Between:

Triveni Bhavan Trust, rep. by its next

Friend and trustee Mhaavir Parshad and others

… Appellants

 

                   And

 

Pradeep Kumar and others

… Respondents

 

This Court made the following:


HON’BLE SRI JUSTICE A.GOPAL REDDY
AND
HON’BLE SRI JUSTICE K.S.APPA RAO

CITY CIVIL COURTS APPEAL No: 49 of 2000

JUDGMENT: -                (Per Hon’ble Sri Justice A.GOPAL REDDY)

This is an appeal by the plaintiffs against the decree and judgment of the IV Additional Judge; City Civil Court, Hyderabad given on 11.11.1997 in O.S.No.1193 of 1986, whereby the learned trial Judge, dismissed the suit filed by the plaintiffs to declare plaintiff No.4 as a life time trustee of plaintiff No.1 of the suit trust; for declaration that the leases in respect of portions of the suit trust properties standing in the name of defendant No.2 are benami for defendant No.1, not binding on the suit trust and for recovery of possession of the suit schedule properties from defendant No.1; for framing the scheme for administration of plaintiff No.1 suit trust; for rendition of the accounts of plaintiff No.1 trust properties by the
de facto trustees defendant Nos.1 and 3 to 7 and for recovery of the amounts etc.
2.       Facts in nutshell, which are relevant for disposal of the appeal, are as under:-
Plaintiffs deities, represented by plaintiff No.4, filed the above suit stating that plaintiff No.1 is a charitable private trust for the maintenance of Dharmasala and the deities of Lord Shiva comprising of Shiva Panchayat viz., idols of Lord Shiva, Goddess Parvathi, Lord Karthikeya, Lord Ganesh, Lord Nandi-plaintiff No.2, the deity of Lord Hanumanji–plaintiff No.3.  Plaintiff No.4 is a trustee of plaintiff No.1 trust.  Defendant Nos.1 and 3 to 7 are the de facto trustees of plaintiff No.1 trust while defendant No.2 is one of the authors of the suit trust in whose names lease portions of the trust properties are taken benami of defendant No.1 de facto trust.  The adoptive mother of plaintiff No.4 late Triveni Bai, W/o.Madanlal purchased a part of plaint schedule property bearing Municipal No.5-5-212 (old) forming part of the premises bearing Municipal No.5-8-110 in all admeasuring 264 sq.yds., under a registered sale deed dated 27.02.1971.  Prior to her purchase, her husband purchased 157 sq.yds., on the southern side and shortly after such acquisition her husband conveyed such extends of yards to Smt.Triveni Bai under the registered sale deed. Thus, Smt.Triveni Bai was in possession of 431 sq.yds., under registered sale deed leaving behind about 71 sq.yds for passage to plaintiff No.4 for access to his house which is adjoining on the eastern side.  Smt.Triveni Bai constituted plaintiff No.1 trust in an area of admeasuring 350 sq.yds., which is the plaint schedule property. Next day after her purchase, she declared her intention to use the aforesaid premises for charitable purpose viz., Dharmasala with a temple therein entitled ‘Triveni Bhavan’, a private trust.  In furtherance of the said object on 03.02.1975, she installed the deities plaintiff Nos.2 and 3, performed Sankalpa and intended to construct a temple in the schedule premises for plaintiff Nos.2 and 3.  During her lifetime the plaint schedule premises was used as Dharmasala with plaintiff Nos.2 and 3 as family idols worshiped as such.  It was her intention that a separate temple should be constructed in a portion of the suit premises.  On the death of Triveni Bai on 28.05.1975, her legal heirs her husband Sri Madanlal, (since died), her adopted son plaintiff No.4 and  her natural daughter Smt.Devi Bau Alias Mumma Devi-defendant No.2, wanted to execute a formal trust deed to implement the directions of late Triveni Bai.  Accordingly on 13.08.1975 husband of Triveni Bai, late Madan Lal, plaintiff No.4 and her natural daughter defendant No.2, being the authors of the trust deed executed a registered trust deed in favour of late Madanlal, Mahavir Prashad, Krishnalal, Sri Jhavirlal and Sri Durgashankar constituting them as Trustees.  The main object of the trust deed has been detailed from para IX of the plaint.  It was further asserted that during the lifetime of Triveni Bai, she could not construct the temple in the suit premises to provide for a permanent abode for plaintiff Nos.2 and 3 due to the passage dispute with neighbours on the southern side.  After the death of Triveni Bai, her legal heirs obtained delivery of southern 163 sq.yds., on 24.12.1977 in E.P.No.149 of 1977 on the file of IV Assistant Judge, City Civil Court, Hyderabad and got constructed a temple in the said 163 sq.yds as per the wishes of Triveni Bai and removed the deities into the said temple and installed them. 
3.       Further, during the lifetime of Madanlal, he was in a domain position to influence all the other trustees with regard to the administration of the suit trust and conceived the evil idea of appropriating the suit trust properties for his own purposes in collusion with defendant No.2 and others.  Under colour of opening a charitable Hospital, which was never contemplated either by the founder trustee late Smt.Triveni Bai or envisaged in the trust deed, dated 13.08.1975, Madan Lal prevailed upon plaintiff No.4 for leasing the adjoining personal private property admeasuring 94 sq.yds., bearing municipal No.5-8-110 for running a hospital adjacent to Dharmasala.  After obtaining the personal private property of plaintiff No.4 on lease, he got started ostensible charitable hospital really into a private hospital of defendant No.1’s father under the name and style of Triveni Madanlal Hospital.  On plaintiff No.4 in his individual capacity instituted a suit O.S.No.754 of 1983 for recovery of his private personal property during the life time of Madanlal, the said Triveni Madanlal Hospital was closed and the premises is vacant since then.  Madanlal leased out a portion of the suit trust properties to his daughter defendant No.2 benami for defendant No.1 for grossly low rental for a period of ten years and himself executed a lease deed without any other trustees being joined in the execution of the said lease deed.  Plaintiff No.4 came to know about leasing out the portion of the trust properties after filing the suit O.S.No.754 of 1983.  After the death of Triveni Bai, Madanlal prevailed upon defendant No.2 to develop enimosity towards plaintiff No.4 and to disclaim even the adoption of plaintiff No.4 by Madanlal, the plaintiff No.4’s right over the family properties as co-parcenary in the joint family property of Sri Madanlal and plaintiff No.4, consequently plaintiff No.4 had to file suit O.S.No.187 of 1983 before the Additional Chief Judge (temp.), City Civil Courts, Hyderabad for partition of the family properties of Sri Madanlal, who embittered against plaintiff No.4 and denied his title to the property which was obtained on lease by him on behalf of the Trust for starting the charitable hospital.  Plaintiff No.4 was never allowed to participate in the administration of the suit trust and his functioning as secretary of the suit trust as per the terms of the trust, dated 13.08.1975. 
4.       Further, Madanlal illegally and high handedly inducted defendant Nos.1, 3 to 7 as trustees of the suit trust to function along with him in the administration of the suit trust.  On the death of Madanlal on 09.12.1985, plaintiff No.4 is the President of the suit trust as per the trust deed, dated 13.08.1975.  But defendant Nos.1 and 3 to 7 de facto trustees have been in possession and management of the trust properties and, therefore, they are bound to account for the income of the trust properties.  The estate of Madanlal is liable for the amounts as he was found due to plaintiff No.1 trust as a result of Madanlal’s appropriation of the suit trust properties as his own private properties in derogation of the terms of the trust deed, dated 13.08.1975.  The other three trustees originally appointed viz., Sri Kishnalal died on 04.12.1982, Jhaverlal died on 13.03.1979 and Sri Durgashankar retired after the expiry of the original term of five years and was never reelected.  Therefore, the self-styled de facto trustees i.e., defendant Nos.1 and 3 to 7 have not been appointed as per the terms of the trust deed, dated 13.08.1975 and are not entitled to function as such.  On the death of Madanlal, the vacancies in the trust board have not been filled up as per the terms of the trust deed, dated 13.08.1975.  Even during his lifetime the vacant seats in the trust board were not duly and properly filled up.  During his lifetime, the entire trust properties were used exclusively for the personal benefits of himself, his daughter defendant No.2 and his grandson defendant No.1.  Even after his death, the trust properties were used for the benefit of defendant Nos.1 and 2. The defendants have been guilty of several acts of breach of trust as a result of which the trust itself has virtually become extinct and that the defendants have been acting not only against the interests of the plaintiffs but even contrary to the wishes of the founder trustee in utter violation of the terms of the trust deed, dated 13.08.1975.  Therefore, for proper administration of the trust and the protection and preservation of the suit trust properties the plaintiffs are entitled to claim the framing of a proper scheme in accordance with the true wishes of the founder trustees and, therefore, they are entitled to declaration as claimed.
5.       Defendant No.2 filed a lengthy written statement denying all the averments made in the plaint, which was adopted by defendant No.1, stating that Triveni Bhavan Trust was established by late Madanlal for the purpose of serving the public and needy people.  To achieve the said object, it was decided to have Dharmashala, Hospital, Students hostels and other religious purposes and to have a small idol of Lord Shiva.  Further, the averments made by the plaintiffs in para 5 that Triveni Bhavan Trust was created for the maintenance of deities of Lord Shiva comprising of Siva Panchayat viz., Idols of Lord Shiva, Goddess Parvathi, Lord Karthikeya, Lord Ganesh and Lord Nandi-plaintiff No.2 and Lord Hanumanji-plaintiff No.3 are not correct.  On the other hand, there are idols of those deities inside the temple.  Plaintiff No.4 was taken as one of the Trustees of the said trust.  On the death of Triveni Bai on 28.05.1975 the legal heirs are her husband Madanlal and her daughter Defendant No.2.  A registered trust deed was executed by Madanlal and defendant No.2, in which plaintiff No.4 was also joined as one of the authors of the trust deed.  It is specifically denied that Triveni Bai was the adopted mother of the plaintiff No.4, but admitted that she purchased the premises under registered sale deed, dated 27.02.1971 admeasuring 358 sq.yds., is a trible storied building in the name of Triveni Bai  under two different sale deeds, one on 27.02.1971 in the name of Triveni Bai and the other in the name of plaintiff No.4 as a Benamidar.  When the sale deed was obtained in the name of plaintiff No.4, he was a child and the entire funds for purchase of the said property was in the name of plaintiff No.4 were contributed by Smt.Triveni Bai and Madanlal.  From the inception of the two registered sale deeds, the entire property including the open land without any distinction of northern and southern portions was actually in physical possession of Triveni Bai and her husband and they improved the property till their death.  The very next day of obtaining the registered sale deeds by Triveni Bai, she declared her intention to use and utilize the entire property for charitable purposes and also to install a small temple for the purpose of performing daily poojas.  After the death of Smt.Triveni Bai, her husband, who was her legal heir, created a trust dated 13.08.1975 to achieve the said object of serving the needy people.  It is further submitted that Triveni Bai was not lone founder of the Trust but it was late Madanlal who was architect and founder of the trust because the funds for purchase of the property and establishment of the Trust etc., were contributed exclusively by Triveni Bai and Madanlal.    It is denied that the authors of the trust who were the heirs of founder trustee have been managing the trust, but stated before the trust was created, it was Madanlal who was managing the affairs of the Trust and it was he who was evincing interest to utilize the property for the purpose of charitable purposes.  After the trust was created, the trust was being run by the trustees in accordance with the Trust deed.  Though plaintiff No.4’s name was entered in the trust as the Secretary of the Trust, he never evinced any interest in the affairs of management of the trust and he did not attend the meetings of the Trust, nor he convened the meetings as a Secretary.  Therefore, as per the resolution, dated 02.05.1982, of the trustees, his name was removed from the trustees and in his place defendant No.1 was appointed as Secretary as per the amended trust deed, dated 26.06.1985.  Madanlal entertained an idea i.e., after his death  plaintiff No.4 should become the President of the Trust and the same was incorporated in the trust deed, dated 13.08.1975, but plaintiff No.4 did not come up to the expectation of late Madanlal as he was entertaining the evil designs right from the beginning.  Hence, his name was removed totally from the trust and in his place defendant No.1 was appointed as Secretary of the Trust as per the amended Trust deed, dated 26.06.1985.  Thus the board of trustees decided to stop functioning of Dharmashala and utilize the entire premises for running hospital.  The object of creating the family trust was to render service to the public at large and keeping that in view as a primary concern it was felt in the beginning to open Dharmashala, hospital and students hostel to render service to the people.  The installing of deities is an incidental one and it is secondary thing.  The trust is a family Trust.  Participation in performance of the puja is open to all.  Similarly the admission to Dharmashala as well as to the hospital is open to all.  The administration and the management of the trust has got discretion to impose restrictions for its smooth and peaceful functioning of its trust.  The management of the trust are entitled to employ employees and a pujari to perform daily poojas.  The object in creating the Trust is to serve the people.  It is denied that the income worked is utilised for the purpose of worshipping of plaintiff Nos.2 and 3 then for maintenance of Dharmashala and the surplus income for Dharmashala or for giving donations to relief works of sufferers of calamities or any good charitable, religious and philonthrophic works.  Such condition is not mentioned any where in the Trust deed.  The main object of creating family trust is to render service to the public at large specially poor and needy.  Hence, the income would be utilised primarily for the comforts and convenience of the public who receive the service from Dharmashala and hospital.  The income would be utilised first to look after their comforts and convenience and surplus income shall be utilised for development of the property for charitable purpose and a portion of the income shall be utilised for performing daily pujas to the deitees.  Further surplus income shall be utilised for giving donations to relief work of suffers of calamities or any good charitable, religious and philonthrophic works.  The temple was constructed in the said open space of 163 sq.yds., and that too  at a very corner place of the building. 
6.       While denying the averments made in para 11 it is asserted that late Madanlal was a great phylontrophist.  Similarly, his wife Triveni Bai, was also having the same ideology.  Their main object is to serve the people at large especially poor and needy.  Keeping the said object in view late Madanlal after the death of his wife, has created the Trust.  The very fact that the Trust was created long after the death of Triveni Bai i.e., on 13.05.1987 itself establishes that late Madanlal was not only entertaining Philonthrophic ideology, but he was in fact had implemented it by creating the Trust with the object of rendering service to the people at large and especially poor and needy.  Plaintiff No.4 had created lot of trouble to late Madanlal by filing false and vexatious suits and he brought untold sufferings during the latter days of Madanlal’s life in the suit O.S.No.107 of 1983 on the file of Additional Chief Judge, filed by the plaintiffs alleging that he is the adopted son of late Madanlal and stated that Madanlal acquired or received ancestral property, in which a written statement was filed by Madanlal denying the adoption as well as the acquisition of ancestral properties and positively asserting that the property acquired by him was not ancestral property, but was a self acquisition.  Late Madan Lal executed a registered will deed dated 25.02.1982 clarifying the position and the status of plaintiff No.4 in that regard.  As per the family customs, a boy in adoption should be more than 15 years of age provided he is unmarried. Late Madanlal had adopted defendant No.2’s son herein as his son on 25.02.1982 performing the religious rights and also obtained registered adoption deed, dated 25.02.1982 adopting Pradeep Kumar as his son. 
7.       While denying the plaintiffs’ assertion that he leased out the southern portion, it was stated that the board of trustee in accordance with the trust deed decided to stop the functioning of Dharmasala and utilized the premises for running the hospital.  Accordingly, the out patient block of the hospital was opened on 03.10.1979 and an inpatient block on 18.11.1979.  The natural father of defendant No.1 has nothing to do with the hospital.  Particularly, he is a Government employee and he cannot work in a private hospital.  The allegation that the hospital was established for the benefit of natural father of defendant No.1 is highly mischievous and the same is made with an object of ulterior motive.  Madanlal purchased an open piece of land measuring 157 sq.yds., adjacent to trible storied building in the year 1971 and immediately transferred the same in the name of his wife Triveni Bai on 05.11.1971.  Thereafter four mulgies were constructed by investing personal funds of late Triveni Bai and Madanlal.  The said Mulgies were let out wherein the furniture business was carried in the name of Triveni Furnitures.  As the income from the said Mulgies is very less, the board of trustees decided to let out the said premises to defendant No.2 in the year 1978.  As Madanlal was not conversant in English, plaintiff No.4 used to obtain his signatures by exercising fraud.  There is no need for Madanlal to act prejudiciously to the interest of the trust.  During his lifetime, the original trust deed was amended and the amended trust deed came into effect on 26.06.1985, which was in spirit and object of the trust deed.  Once the trust deed is amended, defendant No.1 is competent to function as president of the trust and in fact he has been functioning as such after the death of Madanlal.  Since Plaintiff No.4 was removed from the trusteeship and he never functioned as trustee,  he cannot claim that he can serve as a President of the suit trust.  The accounts of the trust are maintained properly by the present trustees and the same is properly accounted by the board of trustees.  Once plaintiff No.4 is removed from the trusteeship and reconstituted the trust, plaintiff No.4 is a disclaimer and having kept quite all these years, he has no right, title and interest to file the suit for declaration particularly after he is removed from the trusteeship by resolution, dated 02.05.1982.  The suit of the plaintiffs for declaration is not maintainable in law.  As the suit property being private properties, plaintiff No.4 has no right, title and interest in the suit and accordingly, he prayed for dismissal of the suit.
8.       On the above pleadings, the following issues were settled for trial:-
i.             Whether plaintiff No.4 is entitled for declaration that plaintiff No.4 Sri Mahavir Pershal was and is a properly constituted life trustee of plaintiff No.1 suit trust and since the death of Sri Madanlal, he is the president of the suit trust?
ii.           Whether plaintiff No.4 is entitled to the possession of the suit trust property covered by the five registered lease deeds from defendant No.1 one of the de facto trustees and the rest of the trust properties from all the defendant trustees?
iii.        Whether the plaintiff is entitled for declaration that the lease in respect of properties of the suit trust properties standing in the name of defendant NO.2 are benami for defendant No.1 not binding on the suit trust and for recovery of the said properties from the defendants by plaintiff No.4?
iv.         Whether defendant Nos.1, 3 to 7 are liable for rendition of accounts of plaintiff No.1 trust properties and whether plaintiff No.4 is entitled for recovery of the amount that may be calculated and may recover from the estate of late Madanlal?
v.            Whether the plaintiffs’ suit is false, fictitious malfsfice and the same is filed by plaintiff No.4 to wreck his personal vengence?
vi.         Whether plaintiff No.4 is not entitled to file the suit?
vii.       To what relief?
9.       To substantiate the claim of the plaintiffs, apart from examining himself as P.W.1, he got examined five more witnesses as P.Ws.2 to 6 and got marked Exs.A1 to A6.  on behalf of defendants, defendant No.1 examined himself as D.W.1 and got marked two more witnesses on his side as D.Ws.2 and 3 and got marked Exs.B1 to B18 and Exs.X1 to X4 were marked with consent of the parties.  
10.     After marking the documents, I.A.No.1312 of 1997 was filed by the defendants to frame additional issues stating that the Court lacks inherent jurisdiction as the Principal Civil Court of original Jurisdiction.  Chief Judge, City Civil Courts, Hyderabad has to try the nature of suit and further pleaded that the provisions of Section 92 CPC are attracted to the nature of the suit.  The said I.A. was allowed and the trial Court framed the following additional issues:-
1.     Whether this Court lacks inherent injurisdiction to try this suit as alleged by the defendant in paragraph 24 of the written statement?
2.     Whether the plaintiff suit is liable to be dismissed for non-compliance of the provisions of the Section 92 of CPC as alleged by the defendants?
3.     Whether the plaintiffs suit for declaration of the plaintiff No.4’s trusteeship as alleged by him is barred by limitation?
11.     The learned trial Judge took up the said I.A. as well as the main suit together and held that the execution of the trust deed, dated 13.08.1975 by late Madanlal is proved and the same is valid and binding and acted upon by the Trustees in the manner in which it has been executed in the document, dated 13.08.1975; that the suit trust is a public trust and not a private trust as contended by the plaintiffs and ultimately it was held that the defendants proved the deed of amendment dated 26.06.1985 as valid and binding on the parties to the suit.   Accordingly, answered issue Nos.1 to 3 holding that plaintiff No.4 is not entitled for declaration of any relief.  It was further held that since it is a public trust, it is only the Principal Civil Court of original jurisdiction court which has got jurisdiction to try the suit as provided under Section 92 CPC and accordingly, dismissed the suit.  Aggrieved by the same, the present appeal has been filed.
12.     Sri O.Manohar Reddy, learned counsel for the appellants contends that the management of the trust is given to the trustees under the trust deed and no right is reserved under the deed to vary or alter the composition of the trust.  Therefore, the amendment of the trust deed on 26.06.1985 under Ex.B16 is not valid. Once the trust is created as a private trust, the provisions of Indian Trust Act, 1882 (for short, “the Act”) will apply.  Section 73 of the Act contemplates appointment of a new trustee.  Once the amendment of trust is invalid, any steps taken under the amended trust deed is invalid.  Therefore, the trial Court erred in holding that the suit trust was a public trust and not a private trust.  When Ex.A1 trust deed declares that the trust was irrevocable private trust and right of admission was restricted to the discretion of the management of the trust, trial court erred in holding that the defendants proved deed of amendment, dated 26.06.1985, which is valid and binding on the parties.  When the de facto trustees closed the Dharmasala and opened the hospital against the objects of the suit trust deed and wishes of the founder trustee, the finding recorded by the lower court that the plaintiffs failed to establish breach of trust and misappropriation of funds of the trust, is not valid.  None connected with the resolution, dated 02.05.1982 were examined to prove the resolution which is the basis for amendment of the trust.  Therefore, the plaintiffs can maintain the suit for declaration of his right under the trust deed, dated 13.08.1975.  Plaintiffs failed to seek the declaration in regard to the deed of amendment of trust and therefore, they are not entitled to the relief as claimed.  The private trust can always  move the civil court for removal but not validly removed.  Hence, the lower court is not justified in dismissing the suit.
13.     Per contra, Sri G.Anjappa, learned counsel for the respondents/defendants contends that once the object in creating the trust as per Ex.A1 is charitable purpose and the intention of Late Triveni Bai, clearly shows to serve the general public. In the absence of any identified beneficiaries in the trust deed, but for maintaining the Dharmashala the entire income should be spent from the income of the general public, the same would be treated as a public trust and it will possess all the characteristics of a public trust.  He further contends that Chapter VII of the Act deals with vacating the office of Trustees. Under section 71(c) of the Act, a trustee may be discharged from his office by means as may be prescribed by the instrument of trust.  Once the trust deed is amended, unless a declaration as contemplated under provision to Section 34 of the Specific Relief Act is sought, to cancel the deed of the amendment, plaintiff is not entitled to the declaration.  Section 5 of the Act does not recognize a trust in relation to immovable property unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.  He also brought to our notice, the plea taken in para 21 of the written statement in that regard.  To buttress the said submission, reliance is placed on the following
1.     State of U.P. v. Bansi Dhar and others [1]
2.     The Sole Trustee Loka Shikshana Trust v. The Commissioner of Income Tax[2]
3.     Deoki Nandan v. Murlidhar and others[3]
14.     Replying the said submissions, Sri O.Manohar Reddy, learned counsel for the appellants contends that the cause of action for filing the suit as mentioned at para 51 and 53 in para XXIII and XXVI in the absence of any plea with regard to the maintainability of the suit, learned trial court is not justified in holding that the suit is not maintainable.  None connected with the resolution, dated 02.05.1982, were examined to prove the resolution.  In such a case declaration is not necessary to claim further relief.  Once it is established that it is a private trust, he can necessarily have to move the civil court for removal, but the plaintiff No.4 was not validly removed.  Hence, the suit as such is maintainable.  To buttress the said submission, reliance is placed on the following:-
1.    Brindaban v. Ram Lakhan Lalji and Mahadeoji [4]
2.    Dolagovinda Sethi v. Kanika Museum and others [5]
3.    Radhakanta Deb v. The Commissioner of Hindu Religious Endowments[6]
4.     The Bihar State Board of Religious Trust v. Mahanth Sri Biseshwar Das [7]
15.     In the light of the submissions as referred to above, the following points arise for consideration in this appeal:-
1.                            Whether the trust is a private trust or a public trust and the suit as such is maintainable or not in view of the provisions of section 92 of CPC?
2.                            Whether the plaintiff is entitled to declaration about his trusteeship without seeking such declaration, which is barred by limitation?
POINT No.1:-
16.     The term “Trust” has been defined under the Act under Section 3 of the Act, which is as follows:-
“3. Trust:- A trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owenr, or declared and accepted by him, for the benefit of another, or of another and the owner.”
          13.     A trust may be created for any lawful purpose as enshrined under Section 4 of the Act. Section 5 of the Act prescribes Trust of immovable property and that no trust in relation to immovable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.   Chapter III of the Act prescribes about the duties and liabilities of Trustees. 
          14.     The Supreme Court in Deoki Nandan’s case (3 supra) drawn the distinction between private trust and public trust in para 5 of its judgment as under:-
The distinction between a private, and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.  While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body, which is incapable of ascertainment.  The position is thus stated in Lewin on Trusts, fifteenth edition, pp.15-16;
          “By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description.  To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions.  In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained………”
          In para 7 it was further held as follows:-
          7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshipers, the question whether an endowment is private or public presents no difficulty.  The cardinal point to be decided is whether it was the intention of the founder that specified individual’s are to have the right of worship at the shrine, or the general public or any specified portion thereof.  In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family and that is an ascertained group of individuals.  But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.”
15.       In The Sole Trustee Loka Shikshana Trust’s case (2 supra) while dealing with the charitable definition of charitable purpose as given in Section 2(5) of the Income Tax Act, it was held that in order to bring a case within the fourth category of charitable purpose, it would be necessary to show that (1) the purpose of the trust is advancement of any other object of general public utility, and (2) the above purpose does not involve the carrying on of any activity for profit.  Both the above conditions must be fulfilled before the purpose of the trust can be held to be charitable purpose.  It is not necessary for the decision of this case, as already mentioned above, to go into the question as to whether the words “not involving the carrying on of any activity for profit” also qualify the first three categories of charitable purpose, namely, relief of the poor, education and medical relief.
          16.     The Supreme Court in State of U.P.’s case (1 supra) at para 20 while dealing with the application of Section 83 of the Trust Act and the application of the cypres principle etc., it was held as follows:-
          “Even so, we are inclined to the view that, both testamentary and non-testamentary gifts for public charitable purposes must be saved by a wider intervention of court, for public interest is served that way.  Neither principle nor precedent bars this broader invocation of the courts’ beneficent jurisdiction.  But there are two other limitations on the cypress doctrine, which come into play here.  Where the donor has determined with specificity a special object or mode for the course of his benefaction the Court cannot innovate and undo, but where a general charitable goal is projected and particular objects and modes are indicated the Court, acting to fulfill the broader benevolence of the donor and to avert the frustration of the good to the community, reconstructs, as nearly as may be, the charitable intent and makes viable what otherwise may die.  The judges have set this restraint on their power to resurrect, or rather to vary and validate.  The twin conditions to be satisfied are:
(1) The settler must, in general, have shown a general charitable intention….
(2) The second condition for the application of the cypres doctrine used to be that it was or had become “impossible” to carry out the settlers’ intention or alternatively that a surplus remained after fulfillment of the purpose…”
17.     The question fell for determination before the Allahabad High Court in Brindaban’s case was whether plaintiff No.2 could be declared to be the sarbarkar of plaintiff No.1 or not.  While constructing the deed it was held that the Dharmakarta during her life time made arrangements for the management of the trust property after the death of the executants of that deed in that document.  Therefore, the relief for declaration sought to the effect that he is the sarbarkar of plaintiff No.1 cannot be granted in the suit.   Since the charitable trust of the public nature has not been defined under the Orissa Land Reforms Act, the Orissa High Court in Dolagonda Sethi’s case laid down the tests to determine the public or private nature of a temple.  The decisions of the Supreme Court in Radhakant Dev’s case and the Bihar State Board of Religious Trust’s case are not directly on the point and does not apply to the case on hand.
18.     In Ex.A1 trust deed, Smt.Triveni Bai made it clear her intention to use the premises viz., three storeyed building bearing municipal No.5-8-110, situated at Nampally, Hyderabad to be used for a charitable purpose and to have a temple therein also.  The said premises has been used as Dharmasala known as Triveni Bhavan as accommodation of Hindu travelers and for using the same for marriages and other charitable religious purposes.  The income from the rent of the said Dharmasala is meant for the upkeep of the temple located therein and for the maintenance of the premises therein as Dharmasala.  Under the trust deed it was declared that Sri Madanlal, Mahaveer Prasad and Krishnaji shall be the life estate holders and other two trustees shall be for a period of five years and shall retire after the expiry of the date.  That retired trustees also can be appointed as new trustees.  If the president of the trust dies at any time his son Mahaveer Prasad shall be president of the trust and similarly the eldest male descendant shall be trustee after Mahavir Prasad.  After the death of SriKishnalal any trustee may be appointed by the remaining trueees. The purpose of the trust as indicated is to manage and maintain the Dharmasala and to see that the worship of the dietees are properly and regularly performed and the income of the trust shall be utilized first for the performance of worship and then for the maintenance of the Dharmasala and the surplus income may be utilized for extended the Dharmasala or for giving donations or contributions for the relief work of sufferers, calamities or any good charitable, religious and philanthropic works. Any matter relating to the management of the trust shall be decided by majority.  As the trust is a private trust the right of administration to the Dharmasala and temple is within the discretion of the management.
19.     From a reading of the same, it abundantly makes it clear that though it is mentioned as a private trust, as it is constituted for the benefit of the dietee, it is also extended to the general public and the beneficial interest do not vest absolutely for the family members.  Therefore, it falls within the nomenclature of public trust. Section 92 of the CPC deals with the procedure for filing of the suits and obtaining the leave of the court as required thereunder for filing the suit in relation to public charities.  Since two or more persons having interest in the suit trust property have not joined in filing the suit and no leave of the court as required under Section 92 CPC was obtained before the filing the suit, the lower court rightly held on additional issue Nos.1 and 2 that the suit lacks inherent jurisdiction to try the suit.  Point No.1 is accordingly answered.
POINT No.2:-
          20.     Sri O.Manohar Reddy, learned counsel for the petitioner, by placing reliance on the judgments of Robert Fischer v. The Secretary of State[8], Chomu v. Umma and others[9], Unni v. Kunchi Amma[10], C.Mohammad Yunus v. Syed Unnissa and others[11], Secy. of State v. Subba Rao[12], Syed Saulat Hussain v. Syed Ilmuddin[13], Ramaraghava Reddy v. Seshu Reddy[14], M/s.Supreme General Films Exchange Ltd., v. Maharaja Sir Brijnath Singhji Deo of Maihar and others[15], S.Tarlok Singh S.Sant Singh v. Sardarni Daljit Kaur[16], Desu Reddiar v. Srinivasa Reddi[17], Rukhmabai v. Laxminarayan[18] contends that in the absence of further relief though available being not asked for no objection to the said effect raised at the earliest time, the same cannot be raised in the appeal or before any other court.  He further contends that in a declaratory suit mere non-claiming of further relief is not fatal.  In all the above cases proviso to Section 42 of the Specific Relief Act fell for consideration and where the Courts have held that it is not necessary for the plaintiff for obtaining his legal rights and that the declaration of which the character falls outside the purview of Section 42 of the Specific Relief Act and will be governed by the general provisions of Civil Procedure Code like Section 9 or Order VII.  Hence the belated objection to the maintainability of the suit for bar under the Section cannot be entertained and the court cannot deny the relief on that ground.
21.     Admittedly, in the present case the respondent by filing written statement specifically pleaded that as plaintiff No.4 did not come up to the expectation of late Madanlal, as he was entertaining the evil designs right from the beginning, his name was removed totally from the trust and in his place defendant No.1 was appointed as Secretary of the Trust as per the amended trust deed, dated 26.06.1985.  After the amended trust deed the board of trustees decided to stop functioning of the Dharmasala and utilized the entire premises for running the hospital.  Since the object of creating family trust to render service to the public at large and keeping that in view as a primary concern it was felt in the beginning to open Dharmasala, hospital and students hostel to render service to the people.  Further, under the amended trust deed defendant No.1 is competent to function as the President of the Trust and has been functioning as such after the death of Madanlal and plaintiff No.4 cannot claim that he can serve as a President of the suit trust and the accounts of the trust are maintained by the 1st defendant trustees.  Once plaintiff No.4 is removed from the trusteeship by resolution dated 02.05.1982 and the trust is reconstituted and having kept quiet all the years, he cannot file the suit.  In spite of the same the plaintiff has not chosen to question the trust deed.  Therefore, unless plaintiff No.4 removal from the trusteeship is declared as invalid, he cannot be declared as a trustee of plaintiff No.1 trust.  The lower court also framed issue No.1 and additional issue No.3 specifically on the objection raised by the defendant.  Therefore, we do not see any merit in any of the contentions advanced by the learned counsel for the appellant.  All the judgments on which reliance is placed by the learned counsel for the appellant are misplaced to the facts of the present case.  In the light of the conclusions reached by us, the finding recorded by the court below on issue No.1 and additional issue No.3 that plaintiff No.4 is not entitled to declaration without seeking a consequential relief has to be upheld. 
22.     In the result, the C.C.C.A. is dismissed.  There shall be no order as to costs.

_____________________
A. GOPAL REDDY, J


___________________

K.S. APPA RAO, J


16 - 12 – 2011
LMV

HON’BLE SRI JUSTICE A.GOPAL REDDY
AND
HON’BLE SRI JUSTICE K.S.APPA RAO



























CITY CIVIL COURTS APPEAL No: 49 of 2000












- 12 - 2011
lmv


[1] AIR 1974 SC 1084
[2] AIR 1976 SC 10
[3] AIR 1957 SC 133
[4] AIR 1975 Allahabad 255
[5] AIR 1989 Orissa 60
[6] AIR 1981 SC 798
[7] AIR 1971 SC 2057
[8] ILR 22 Mad 270
[9] ILR 14 Mad 46
[10] ILR 14 Mad 26
[11] AIR 1961 SC 808
[12] AIR 1933 Mad 618
[13] AIR 1981 Raj 29
[14] AIR 1967 SC 436
[15] AIR 1975 SC 1810
[16] AIR 1961 Punjab 426
[17] AIR 1936 Madras 605
[18] AIR 1960 SC 335

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