Kerala High Court
The Nair Service Society vs Jnana Ashram on 3 August, 1992
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938
AS.No. 559 of 1992
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OS 682/1985 OF PRINCIPAL SUB COURT, THRISSUR DATED 03-08-1992
....
APPELLANT(S)/DEFENDANTS:
------------------------
1. THE NAIR SERVICE SOCIETY,
REPRESENTED BY ITS PRESIDENT,
PERUNNAI, CHANGANACHERRY.
2. THE GENERAL SECRETARY,
NAIR SERVICE SOCIETY, PERUNNAI,
CHANGANACHERRY.
3. THE N.S.S. EDUCATIONAL INSTITUTIONS,
CENTRAL CO-OPERATIVE SOCIETY NO.1993,
PERUNNAI, CHANGANACHERRY,
REPRESENTED BY ITS SECRETARY.
BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.)
SRI.P.GOPAL
RESPONDENT/PLAINTIFF:
---------------------
JNANA ASHRAM,
REPRESENTED BY ITS MANAGING TRUSTEE,
SWAMY DAYANANDA THEERTHA,
VYASAGIRI, WADAKKANCHERI VILLAGE,
THALAPPALLY TALUK.
BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.)
SRI.P.B.KRISHNAN
SRI.P.M.NEELAKANDAN
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD
ON 27-10-2016 THE COURT ON 28-02-2017, DELIVERED THE
FOLLOWING:
msv/
AS.No. 559 of 1992
------------------
APPENDIX
PETITIONER(S)' ANNEXURES
-------------------------
CMP.962/1993 IN AS 559/1992
---------------------------
ANNEXURE A PHOTOSTAT COPY OF REPLY AFFIDAVIT IN CMP.7649/1992 IN
AS.559/1992 FILED BY THE SECOND RESPONDENT.
ANNEXURE B PHOTOSTAT COPY OF AFFIDAVIT IN SUPPORT OF CMP.154/1992
FILED BY THE SECOND RESPONDENT.
CMP.1921/1993 IN AS 559/1992
---------------------------
ANNEXURE I TRUE COPY OF THE ADVERTISEMENT APPEARED IN THE INDIAN
EXPRESS DTD.5.6.1993 .
CMP.394/1994 IN AS 559/1992
---------------------------
ANNEXURE A TRUE COPY OF THE STATEMENT SHOWING DETAILS OF WORK
LOAD (COURSE-WISE) OF THE YEAR 1993-94 OF THE HINDI
DEPARTMENT DTD. NIL.
ANNEXURE B TRUE COPY OF THE STATEMENT REGARDING THE WORK LOAD
AMONG THE TEACHING STAFF OF THE HINDI DEPARTMENT OF
1993-94 DTD. NIL.
ANNEXURE C TRUE COPY OF THE STATEMENT OF ACTUAL WORK LOAD
(COURSE-WISE) OF THE 1993-94 OF CHEMISTRY DEPARTMENT
DTD. NIL.
ANNEXURE D TRUE COPY OF THE STATEMENT SHOWING THE WORK LOAD AMONG
THE TEACHING STAFF OF THE CHEMISTRY DEPARTMENT
DTD. NIL.
CMP.995/1994 IN AS 559/1992
---------------------------
ANNEXURE A COPY OF THE COUNTER AFFIDAVIT IN CMP.962/1993
DTD.23.3.1993 (FILING DTD.25.3.1993)
ANNEXURE B COPY OF THE REPLY AFFIDAVIT IN CMP. 7649/1992 FILING
DATE 18.11.1992.
ANNEXURE C COPY OF AFFIDAVIT OF CMP.154/1993 DTD.7.1.1993.
Msv/
-2-
-2-
AS.No. 559 of 1992
------------------
IA.2102/2010 IN AS 559/1992
---------------------------
ANNEXURE A TRUE COPY OF THE PROCEEDINGS OF THE MANAGING TRUSTEE
OF THE ASHRAM DTD.18.6.2009.
ANNEXURE B TRUE COPY OF THE RESOLUTION OF THE TRUST BOARD OF THE
ASHRAM DTD.15.5.2010.
IA.2158/2013 IN AS 559/1992
---------------------------
ANNEXURE A TRUE COPY OF THE ESTIMATES ALONG WITH LETTER OF THE
PRINCIPAL, SRI.VYASA N.S.S. COLLEGE SENT TO THE
SECRETARY, UGC, BANGALORE DTD.28.12.2011.
ANNEXURE B TRUE COPY OF THE LETTER OF THE UNIVERSITY GRANTS
COMMISSIONER DTD.19.12.2012.
ANNEXURE C TRUE COPY OF THE ACKNOWLEDGMENT LETTER DTD.11.2.2013
ISSUED BY THE PRINCIPAL OF THE SRI.VYASA N.S.S COLLEGE
TO THE SECRETARY, UGC, BANGALORE.
IA.2426/2016 IN AS 559/1992
---------------------------
ANNEXURE A TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY, NSS
COLLEGES' CENTRAL COMMITTEE TO THE ENGINEERING
SECRETARY OF THE N.S.S. DTD.9.9.2016.
DOCUMENTS PRODUCED ALONG WITH CMP.NO.154/93 MARKED AS COURT EXTS.
C1 TO C3 VIDE JUDGMENT
----------------------
C1: PUBLIC NOTICE DTD.5.2.1971.
C2: TERMS OF AGREEMENT DTD.2.12.1973.
C3: PROCEEDINGS OF THE UNIVERSITY OF CALICUT DTD.13.3.1973.
RESPONDENT(S)' EXHIBITS
-----------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
[CASE REPORTABLE]
P.R. RAMACHANDRA MENON
&
ANIL K. NARENDRAN, JJ.
~~~~~~~~~~~~~~~~~~~~~
A.S. No. 559 of 1992
~~~~~~~~~~~~~~~~~~~~
Dated, this the 28th day of February, 2016
JUDGMENT
Ramachandra Menon, J.
This appeal arises from a suit filed by the respondent/plaintiff before the Sub Court, Thrissur, more than 3 decades ago. The suit was decreed on 03.08.1992 [except declining the relief in respect of a fixed deposit of Rs. 43,000/-], by granting the declaration as sought for, injunction and also direction for rendition of accounts in connection with the affairs of Sree Vyasa NSS College, Wadakkancherry.
2. The plaint was instituted, on behalf of a Trust [as claimed to be] known as 'Jnana Ashram Trust', contending that the conveyance effected as per Ext. A4 dated 06.12.1973 was an instance of 'fraud', having added/manipulated the word 'forever' in Ext.A4 registered Deed of Transfer, which was not there in Ext. A2 Draft agreement executed in the month of June, 1971 and hence that the bar of 'limitation' would not be attracted by virtue of Section 10 and Section 17 of the Limitation Act. The suit was decreed, despite the specific contentions in the written statement as to the 'locus standi' of the A.S. No. 559 of 1992 : 2 : person who signed the plaint, to represent the Trust, and in spite of the lack of evidence as to the 'fraud' alleged and further, without properly adverting to the plea of 'limitation' and hence the challenge.
3. Though the 'valuation' in the suit was shown as less than Rs.1 lakh, a learned Single Judge of this Court, presumably considering the importance of the matter, referred the appeal to be considered by a Division Bench, as per order dated 27.11.1992. Years later, when the matter was taken up for final hearing, objection was raised by the respondent as to the hearing of the matter by the Division Bench. After hearing both the sides and considering the mandate of Section 4 (1) of the Kerala High Court Act, 1958, providing powers to the Division Bench to deal with all matters over which the power of the High Court can be exercised by a Single Bench, the objection was turned down as per order dated 01.06.2010 passed by the Bench.
4. We heard Sri. P. G. Parameswara Panicker, the learned Senior counsel appearing for the appellants and S. V. Balakrishna Iyer, the learned Senior counsel appearing for the respondent at length.
5. The sequence of events is as follows : A person by A.S. No. 559 of 1992 : 3 : name Padmanabha Iyer created Ext. A1 Trust on 27.05.1961, settling the properties mentioned therein, in the name of the Trust in which six members including him, his sons and others were shown as the Trustees. The main purpose of the Trust was to propagate 'Advaita- Vedanta'; besides providing higher education to the children/grandchildren; and conduct marriage of the grand daughters. By the passage of time, considering the requests made by the local inhabitants, the 'Ashram' decided to set up a Junior College in the area. It was accordingly, that a College was set up and was functioning with moderate infrastructure. Subsequently, as alleged by the respondent/plaintiff, the administration/management of the College was entrusted with the 'NSS' and a draft agreement as borne by Ext. A2 was executed in the month of June, 1971. Later, Ext. A4 Deed of Transfer/conveyance came to be executed on 06.12.1973, giving effect to the transfer 'forever'; which according to the plaintiff was the result of some manipulation made by adding the word 'forever', as it was not there in Ext. A2, the Draft agreement. This came to the notice of the plaintiff only in the year 1983, when notice of termination of the arrangement was sent to the defendants/NSS, also demanding a sum of Rs.43,000/-, plus interest, which was lying A.S. No. 559 of 1992 : 4 : as fixed deposit in the name of the Trust.
6. The above request was not acceded to, when O.S. No. 682 of 1985 was filed against the defendants [who are the appellants herein], mainly contending that there was no intention to alienate the properties of the Trust nor was it ever intended to be transferred 'forever' and that there was mismanagement at the hands of the defendants (appellants herein); with the following prayers:
"A. To declare that Document No. 2335 of 1978 dated 06.12.78 of Wadakkancherry SRO executed by the then Trustees of the plaintiff Ashram in favour of the NSS represented by defendants 1 & 2 is ab initio void and in-operative.
B. In case the Hon'ble Court is pleased to find that the aforesaid document (No. 2335/78) is valid to any extent the court may be pleased to declare that all powers claimed by the defendants N.S.S. under and in pursuance of the impugned deed stand terminated from 4.9.1985 the date on which notice was given. C. Directing defendants N.S.S. and their men by means of a mandatory injunction to remove themselves out from the College mentioned in the plaint schedule and its properties and surrender to the plaintiff all records and other properties pertaining to the College. D. Directing the defendant NSS and its officers not A.S. No. 559 of 1992 : 5 : to interfere with the management of the College and its properties nor to cause any obstruction to the management being carried on by the plaintiff Ashram. E. Making the first defendant liable to render the accounts of all the income collected by it for and on behalf of the Vyasa College and directing the defendants to pay the entire balance as per account to the plaintiff.
F. Directing defendants 1, 2 and 3 to pay the plaintiff the principal sum of Rs.43,000/- due under the fixed Deposit Receipt together with interest 12% per annum from the date of notice viz. 25.6.1985 till date of suit and with future interest at 12 % till the date of realization.
G. Making defendants 1 and 2 liable for the entire cost of the suit, and H. Allowing such other reliefs as are payed for by the plaintiff and deemed fit by the court."
7. A detailed written statement was filed by the defendants (appellants herein), disputing the allegation of 'fraud' and questioning the 'locus standi' of the signatory to the plaint to file the suit; besides contending that there was no 'Jnana Ashram Trust' as on date and that it was only a unit of the VHP (Viswa Hindu Parishath); that the college was not part of the Trust property; that the terms 'Jnana A.S. No. 559 of 1992 : 6 : Ashram' and the 'Jnana Ashram Trust' denoted two different entities; that the circumstances under which the 'NSS' had taken over the Educational Institution was quite different, having been taken over pursuant to public notice issued by the Trust and also pursuant to the request made by them; that the transfer was to be a permanent affair as discernible from the contents of Ext. A2; the term 'forever' was clearly shown also in the proceedings of the University whereby sanction for transfer of management was given, leading to Ext. A4; that the Executants of Exts. A2 and A4 did not have any such case or grievance; that the transfer was an absolute necessity; that huge investments were made by the transferee, taking over the liability of the Institution under different heads and that all the Trustees of the 'Jnana Ashram Trust' were well educated and well versed in English - who hence were quite aware of the actual transaction; thus seeking to dismiss the suit with cost.
8. On completion of the pleadings, the following issues were raised by the Court below :
"1. Whether the person who signed the plaint is competent to bring the suit and whether the suit is maintainable ?
2. Whether the plaint schedule properties form part of the Trust properties ?
A.S. No. 559 of 1992 : 7 :
3. Is document No. 2335 of 1978 of Wadakkancherry S.R.O. vitiated by fraud and is it a void one ?
4. Is the plaintiff entitled to the declarations sought for ?
5. Is the plaintiff entitled to remove defendants 1 and 2 from the management of the College and the properties ?
6. Is the plaintiff entitled to the injunctions sought for ?
7. Is the plaintiff entitled to claim rendition of account by defendants 1 and 2 ?
8. Does the amount of Rs. 43,000/- in deposit with the 3rd defendant belong to Jnana Ashram and is the plaintiff entitled to claim refund of that amount ?
9. Is the suit barred by estoppel ?
10. Is the suit barred by adverse possession and limitation?
11. Is the cause of action alleged in the plaint true ?
12. Is the suit properly valued and is the court fee paid correct ?
13. Are defendants 1 and 2 entitled to any compensation in case the management of the college and the property is transferred to the plaintiff or the Ashram ? If so, what is the quantum ?
14. Reliefs and costs ?
9. PW1 and 2 were examined from the part of the plaintiff, also marking documents as Exhibits A1 to A13, while DW1 was examined A.S. No. 559 of 1992 : 8 : from the part of the defendants, also marking Exts. B1 to B6. The Commission report was marked as Ext. C1 - a Court Exhibit. After appreciation of the pleadings and evidence, the Court below arrived at a finding in favour of the plaintiff and against the defendants [except on issue No.8] and thus decreed the suit, which in turn is under challenge in this appeal.
10. Mr. P. G. Parameswara Panicker, the learned Senior counsel appearing for the appellants submits that the finding rendered by the Trial Court is in a quite casual manner, without any regard to the actual pleadings, evidence on record and the relevant provisions of law. It is also pointed out that the 'burden of proof' has been given a 'go-bye' and undue benefit has been extended to the plaintiff without proper application of mind. It is also pointed out that the pleading raised by the plaintiff was a distorted version and that the actual position brought on record in the course of evidence was unfortunately omitted to be noted properly by the Court below. According to the learned counsel, the 'Jnana Ashram Trust' started a 'Junior College' under the name and style as "Sri Vyasa College", Wadakkancherry somewhere in the late 1960's and just a few years after starting the Institution, it fell in doldrums, incurring huge A.S. No. 559 of 1992 : 9 : liability. The Ashram found it extremely difficult to run the Institution any more and in the said circumstances, a public notice was issued on 05.02.1971 [produced along with C.M. P. No. 154 of 1993 as document No.1 - marked by this Court, as not objected, as Ext. C1] as to the assets and liabilities of the Institution and inviting the general public to come forward and take over the Institution, if interested. Nobody had come forward, as 'Direct Payment System' was not prevailing at that point of time. The signatory to the plaint by name 'Dayananda Thirtha', who was an inmate of the Ashram and was a Batch mate of the late Kalathil Velayudhan Nair [Advocate and General Secretary of 'NSS'], by virtue of the close friendship in between, contacted the latter, but, the 'NSS' leadership was not much in favour for taking over the Institution, incurring huge liability. Accordingly, the Government was requested to make available some land as well, which was considered and sufficient extent of land was made available near the property where the building complex was situated. However, based on persuasive requests and also considering the social objective, the Institution was decided to be taken over by the 'N.S.S.' and it was accordingly, that Ext. A2 Draft agreement was executed, satisfying the due amount to the Ashram A.S. No. 559 of 1992 : 10 : in respect of the cost incurred by them already and also meeting their liability under different heads. It was also agreed that a sum of Rs.43,000/- would be deposited by the 'NSS' in a fixed deposit account in the name of the 'Jnana Ashram Trust' and that interest generated therefrom would be made use of for granting scholarship to students, as stipulated.
11. Admittedly, the payment due was effected by the 'NSS' and they undertook the liabilities of the Institution, including that of the Teachers and Staff, besides effecting the deposit as aforesaid. Provisional agreement as borne by Ext. A2 was executed so as to enable the Institution to be taken over immediately and run it from the next academic year i.e. 01.07.1971 itself; since for effecting a permanent transfer, prior permission of the University was to be obtained [initially, it was the Kerala University and subsequently, it came under the Calicut University], which was to take much time.
12. At the time of registration of Ext. A4, an objection was raised by the Registering Authority with reference to the 'undervaluation' and the deficit stamp duty, by virtue of which, the document was impounded and referred to the District Collector for further action. It was ordered by the competent authority, that stamp A.S. No. 559 of 1992 : 11 : duty was to be paid based on the 'market value', which was computed and satisfied by the 'NSS', facilitating registration of the conveyance. The 'NSS' (appellants) had effected various other improvements and infrastructure in the Institution, starting more and more courses, which attracted students from different corners. The Institution, which initially was having only a meagre strength got developed into one of the best colleges.
13. The signatory to the plaint had left the Ashram somewhere in 1968 and he later joined the 'VHP' and was serving them under different capacities. After one and half decades, he came back in 1983 and the 'VHP', who was a total stranger to the Trust, nominated three persons, including the signatory to the plaint as Trustees, despite the fact that as per Ext. A1 Trust Deed, only a 'Sanyasin' or 'Sadhaka' of that particular Ashram could become the Managing Trustee. With ulterior designs to grab the Institution, at the instance of the 'VHP', the signatory to the plaint issued Ext. A8 notice to the third defendant Society on 25.06.1985 demanding to return the amount of Rs.43,000/- lying in fixed deposit. He also sent Ext. A11 suit notice dated 04.09.1985 to the 'NSS', where no case was raised with reference to the alleged 'fraud' for having incorporated the word A.S. No. 559 of 1992 : 12 : 'forever' in Ext. A4. The Society sent Ext. A9 reply, pointing out that the deposit was made by the 'NSS'. The learned counsel submits that the prayers raised are self-contradictory and unsustainable, and that no recovery of possession was sought for, but for seeking a declaration and mandatory injunction. It was also pointed out that, if recovery of possession was prayed for, 'court fee' had to be paid with reference to the 'market value', whereas the court fee paid in the instant case was only under Section 27 (c) of the Kerala Court Fees and Suits Valuation Act 1959 i.e. for injunction. Reference is also made to three additional documents produced along with C.M.P. No. 154 of 1993 under Order 41 Rule 27 CPC; the first one being a public notice issued by the Trust inviting the general public for taking over the Institution after satisfying the liabilities, if interested [marked by this Court, as not objected, as Ext. C1]. Document No. 2 refers to the meeting held on 02.12.1973 among the authorities of the Ashram, Teachers, Students and the NSS, just 4 days before execution of Ext.A4 document, giving effect to the permanent arrangement [marked by this Court, as not objected, as Ext. C2]. Document No. 3 produced along with the said CMP is the order issued by the University on 13.07.1973 sanctioning transfer of the Management; where the A.S. No. 559 of 1992 : 13 : word 'forever' is specifically incorporated [marked by this Court, as not objected, as Ext.C3]. The learned Senior counsel for the appellants also pointed out that the signatory to the plaint, who had left the Ashram for more than 15 years from 1968 to 1983, had only ulterior motives in alleging that Ext. A4 was manipulated by late Kalathil Velayudhan Nair, who was the General Secretary of the 'NSS' at that point of time and was a senior, dignified member of the Bar of this Court, who commanded respect from all corners.
14. Mr. Balakrishna Iyer, the learned Senior counsel for the respondent submitted that Ext. A1 is a 'Public Trust' and as such, the properties, could not have been conveyed by the Trustees under any circumstances without getting clearance from a Court of law. Even if the main purpose of Ext. A1 Trust is slightly different, charitable activities are also contemplated, besides the religious activity and they go hand in hand. According to the learned counsel, there is nothing wrong in pursuing charitable activities by the religious entities and it was accordingly, that funds were arranged and the College was started to cater to the needs of the public. Ext. A4 is only a permission to have administration and management of the Institution. It is stated that no plea of 'adverse possession' is raised [which A.S. No. 559 of 1992 : 14 : appears to be not correct, as seen raised in paragraph 14 of the written statement]. The difference between a 'Private Trust' and 'Public Trust' was sought to be highlighted with reference to the verdict passed by the Apex Court in Deoki Nandan Vs. Muralidhar [AIR 1957 SC 133] and other judicial precedents. In cases of deeds and misdeeds of a Trustee, it is open to proceed against them without any time bar, by virtue of Section 10 of Limitation Act. With reference to I.A. No. 2892 of 2016 and contents of the affidavit filed in support thereof, the learned counsel for the respondent sought to project/highlight the 'parens patriae jurisdiction' of this Court [to act as guardian to the public property] in the case of a 'Public Trust' and sought to rely on the verdict passed by the Apex Court in Mohant Moti Das Vs. S.P. Sahi [AIR 1959 SC 942] explaining the scope of Section 10 of the Limitation Act. Reliance is sought to be placed on the verdict passed by the Andhra Pradesh High Court in Gutha Hariharabrahman Vs. Doddappaneni Janikiramaiah, Chatapparu [AIR 1955 AP 18] to explain the scope of Section 10 of the Limitation Act [where, it was a suit filed by the Trust against the 'Ex-Trustees'].
15. After hearing both the sides, according to this Court, the A.S. No. 559 of 1992 : 15 : following issues are of prime importance, to be considered in detail:
i. 'Locus standi' of the signatory to the plaint. ii. Whether the signatory to the plaint is competent to represent the 'Jnana Ashram Trust' constituted as per Ext.A1, on behalf of whom the suit is claimed as instituted and if the suit is maintainable ?
iii. Whether the Educational Institution is a 'Trust property' covered by Ext. A1 ?
iv.Is Ext. A4 deed of transfer vitiated by 'fraud' and is it a void transaction ?.
v. Whether the suit is barred by limitation ? vi.Whether the 'Viswa Hindu Parrishath' [VHP in short] can induct nominees to the 'Jnana Ashram Trust' and whether Ext. A5 minutes dated 10.05.1983 and subsequent events by the Trustees nominated by the VHP are valid and sustainable ?
vii.Whether Ext. A1 Trust is a 'Public Trust' or a 'Private Trust' and if the transfer of management of the Educational Institution/properties as per Ext. A4 is bad in law ?
A.S. No. 559 of 1992 : 16 : viii. If 'Jnana Ashram' and 'Jnana Ashram Trust' are two different entities and whether there is any power to transfer the Educational Institution ? ix. Is the suit barred by adverse possession ? x. Is the plaintiff/respondent entitled to get any relief in the suit for declaration, having not sought for any relief as to the recovery of possession ?
16. 'Locus standi' of the signatory to the plaint and the maintainability of the suit have been considered and answered by the Trial Court in favour of the plaintiff/respondent; in just 'two lines' as given in paragraph 10 of the judgment. The reasoning given is that, the version of the plaintiff that PW1 (signatory who claimed to be the Managing Trustee) was acting as the Managing Trustee of the 'Jnana Ashram' is not denied and hence the defendants are not entitled to contend that PW1 is not entitled to represent the 'Jnana Ashram'. The specific case of the appellants/defendants before the Court below was that the signatory to the plaint was not qualified to be a Trustee as per the Trust Deed and hence the suit was not maintainable. There is absolutely no reference by the Court below to the contents of the Trust Deed, to ascertain whether the signatory to the plaint was A.S. No. 559 of 1992 : 17 : competent to represent the Trust as per Ext. A1; to have instituted the suit representing the 'Jnana Ashram Trust'. Clause III (10) of Ext. A1 Trust Deed clearly stipulates that only a 'Sanyasin or Sadhaka' of that particular Ashram can be the Managing Trustee. Clause III (3) says that it is for the 'named five Trustees' to induct new Trustees. Clause III (4) says, number of maximum Trustees can only be '7' and the minimum shall be '3'. Clause III (6) confers power upon the Managing Trustee to remove any Trustee with the approval of the Board, without assigning any reason. On the death or relinquishment of office by the last surviving of the named 'five' Trustees, after functioning as the Managing Trustee in succession; the Board of Trustees can elect the Managing Trustee, as envisaged under Clause III (7), but such person should be a 'Sanyasin' as insisted under Clause III(10). As per Clause III (5), if a Trustee leaves the Trust for 'two years'; he will be deemed to have vacated the office.
17. Viewed in the above background, the first question to be considered is whether the signatory to the plaint, who is a self proclaimed Swami, was a 'Sanyasin' and belonging to that particular Ashram, to have acted as the Managing Trustee; or whether he was A.S. No. 559 of 1992 : 18 : elected to be a 'Managing Trustee' and how he came to be inducted after leaving the Ashram in the year 1968, on coming back in the year 1983, after the exile of about 15 years, despite the bar under Clause III (5) of Ext. A1 Trust Deed.
18. No specific pleading is raised in the plaint and no evidence is adduced when the signatory to the plaint was examined as PW1 in this regard. It has been conceded by PW1 that he had left the Ashram in the year '1968' and had come back only in the year '1983', as a nominee of the 'VHP'. It has been deposed by him that there is no document to show his status as a 'Sanyasin' or from where he got 'Sanyasam', but for his self proclamation. No document has been produced as of the 'Jnana Ashram Trust', to show the induction and involvement of PW1 for any period prior to Ext. A5 minutes dated 10.05.1983. There is no material to hold that PW1 was a 'Sanyasin' and also belonging to that particular Ashram, to make him eligible to be the 'Managing Trustee' of the 'Jnana Ashram Trust' and for being competent to represent the said entity/Trust. Even if it is presumed that PW1, who was an inmate in the Ashram was ordained as a 'Sanyasin' at some or other point of time, since he admittedly had left the Ashram in the year 1968 and had come back only in the year A.S. No. 559 of 1992 : 19 : 1983, Clause iii (5) of Ext. A1 Trust Deed would operate and his right if any, stood lost forever, after two years from 1968.
19. It is conceded by PW1 in the course of his evidence, that he was having acquaintance with the 'VHP' from 1968 till 1983; adding that during the period from 1977 to 1980 he was the President of the 'VHP' in the Kottayam district and thereafter, he came out to Alleppey district, where was having charge till 1983. He has also conceded that there is no document to show or establish any connection between the 'VHP' and the 'Jnana Ashram Trust', except Exts. A6/A7. Ext. A7 is a copy of the letter dated 20.04.1983 issued by the VHP, nominating 3 Trustees to the 'Jnana Ashram Trust', based on the resolution of the Governing Council met on 17.04.1983 regarding nomination of 'three' Trustees. Ext. A6 dated 15.05.1983 is a letter signed by Mr. Kasi Viswanathan, the Organizing Secretary of the 'VHP' to the Managing Trustee of the 'Jnana Ashram Trust', in continuation of Ext. A7. These documents in no way do speak about the power, authority or connection between the 'VHP' and the 'Jnana Ashram Trust', enabling the former to nominate Trustees or Managing Trustee to the 'Jnana Ashram Trust' created as per Ext. A1. As per the pleadings and evidence available, there cannot but be a finding, that A.S. No. 559 of 1992 : 20 : the 'VHP' is a total stranger, who is having no connection with the Ext.A1 Trust, its properties or affairs. In so far as the plaintiff has miserably failed to plead or prove the authority of PW1 to have signed and presented the plaint on behalf of the 'Jnana Ashram Trust' constituted as per Ext. A1, the suit filed on behalf of the 'Jnana Ashram Trust' is not at all maintainable in law. This Court holds that PW1 was never competent to have represented the 'Jnana Ashram Trust' and the finding rendered by the Court below to the contrary, is absolutely without any basis and hence wrong and unsustainable.
20. In view of the our finding that the suit is not maintainable, on the ground of 'locus standi', we can straight away allow the appeal. However, since various issues have been raised and argued by the learned Senior counsel appearing for the parties on either side and since the litigation is pending from 1985 onwards [at least from 1992 before this Court], we find it proper to deal with some other issues as well.
21. As borne by the prayers in the suit, it is only for declaration and injunction; while no recovery of possession is sought for. Since the suit is for declaration and injunction, it is covered by Article 58 of the Limitation Act, which stipulates the period of limitation as 'three A.S. No. 559 of 1992 : 21 : years' from the date the right to sue accrues. As borne by Ext. A2, right of possession to run the Institution was transferred and vested with the appellants, way back in 1971. Subsequently, the University as per Ext.C3 [produced as additional document along with C.M.P. No. 154 of 1993] granted permission for effecting the transfer forever, to be vested with the first appellant and it was accordingly, that Ext. A4 Deed of Transfer/Conveyance was registered on 06.12.1973. As mentioned already, the said document was impounded by the competent authorities, stating that no proper stamp duty was remitted with reference to the 'market value' of the property. On reference and adjudication by the District Collector, the deficit stamp duty/penalty was satisfied and it was accordingly, that Ext. A4 came to be registered, as borne by the endorsement on the document. With an intent to maintain the suit, crossing the bar of limitation, "fraud/manipulation" was alleged on the part of the appellants in giving shape to Ext. A4, contending that there was no intent to have effected the transfer forever; that such word 'forever' was not there in Ext. A2 agreement and that it was consciously and clandestinely added in Ext.A4; besides contending that there was no power or authority for effecting transfer of the Trust properties either in Ext. A1 A.S. No. 559 of 1992 : 22 : Trust Deed or that no sanction of any Court was obtained, it being a Public Trust. Sections 10 and 17 of the Limitation Act are also pressed into service, to cross the hurdle of limitation; contending that the Court, being the guardian of disabled, has to exercise the 'parens patriae jurisdiction' in so far as a 'Public Trust' is concerned. The first question to be considered in this context is whether any 'fraud' was committed by the appellants/beneficiaries, in favour of whom Ext.A4 Deed of Transfer/Conveyance was executed.
22. As mentioned already, the allegation of fraud/manipulation as to the contents of Ext. A4 Deed of Transfer was raised by the plaintiff, solely with reference to the incorporation of the word 'forever' in Ext. A4; which was not there in Ext. A2 agreement executed in the month of June, 1971. The case of the appellants/defendants is that, Ext. A4 is not a replica of Ext. A2 and by virtue of the passage of time, apart from the contents of Ext. A2 agreement, certain other things also have been incorporated in Ext.A4, as agreed. Further, even if the word 'forever' is not there in Ext. A2, the contents clearly reveal that the 'transfer' was to be a permanent arrangement. It is also added that the actual intent is discernible from other relevant documents as well; besides contending A.S. No. 559 of 1992 : 23 : that there is no specific pleading or evidence as to the allegation of 'fraud'.
23. Admittedly, a public notice was issued, marked as Ext. C1 by this Court [item No.1 in C.M.P. No.154 of 1993], referring to the assets and liabilities of the Educational Institution and inviting the interested parties to come forward to take over the Institution. Nobody other than the 'NSS' had come forward, which according to the appellants, was based on the persuasions made by PW1, a colleague of late Kalathil Velayudhan Nair, the then General Secretary of the 'NSS'. Anyhow, the said notice clearly indicates the intention of the publisher; which was not restricted or confined to running of the Institution for a limited period, but to have a perpetual arrangement, subject to satisfaction of the liabilities of the transferrer.
24. Admittedly, PW1 left the 'Ashram' in the year 1968 and joined the 'VHP', who came back only in the year 1983. Absolutely nothing is mentioned in Ext. A5 minutes (of the year 1983) as to the alleged manipulation in Ext. A4 Deed of Transfer, because of incorporation of the word 'forever' and the necessity to proceed with further steps. There is no reference to any earlier proceedings of the 'Ashram' in Ext. A5 minutes of the meeting held on 10.05.1983. A.S. No. 559 of 1992 : 24 : There is no such reference in the subsequent meetings as well. No such insinuation is made by the plaintiff in Ext.A8 notice dated 25.06.1985 issued to the 3rd defendant Society, seeking to return a sum of Rs.43,000/- lying in deposit. The letter head on which Ext. A8 written itself shows the address as Jnana Ashram, Vyasagiri, "COCHIN", though the PIN code given is '680582'. Admittedly, the Trust was having no activities in Kochi and the connection with Kochi is only that the meeting held on 10.05.1983 with the intervention of the 'VHP' was held in the BTH [Bharat Tourist Home], Kochi. This by itself reveals that the said letter head was not that of the 'Jnana Ashram Trust' constituted as per Ext. A1 Trust Deed, which was functioning at 'Vyasagiri' in Trichur district.
25. Ext. A8 was followed by Ext. A11 suit notice dated 04.09.1985. There is no case for the plaintiff in Ext. A11, that the word 'forever' was clandestinely added in Ext. A4, with intent to manipulate things. On the other hand, it is discernible from the Minutes of the Meeting held on '02.12.1973' among the authorities of the 'Jnana Ahram Trust', Teachers, Staff, Students and the 'NSS' [item of No.2 of the documents produced along with CMP No. 154 of 1993 in the appeal and marked by this Court as Ext. C2] that the A.S. No. 559 of 1992 : 25 : transfer was intended to be permanent; for which the word 'forever' was specifically included in Clause No.1 of Ext. A4. The said meeting was held just 4 days prior to execution of Ext. A4 Deed of Transfer and there is no case for the respondent/plaintiff that the contents of the minutes of the said meeting were bad in any manner. It was accordingly, that Ext. A4 Deed of Transfer was executed on 06.12.1973, after obtaining formal sanction from the University as borne by item No. 3 of the documents produced along with the very same CMP, which stands marked by this Court as Ext. C3. It is relevant to note that, in the order of sanction issued by the University, the word 'forever' has been specifically incorporated, which reveals that everything was transparent in all respects.
26. Another important aspect to be noted is that, Ext. A2 agreement was executed in the month of June 1971, pursuant to Ext.C1 public notice and the decision taken by the NSS to take over the liabilities along with the Institution with immediate effect, ensuring that functioning of the Educational Institution was not disrupted on the commencement of the academic year from 01.06.1971. However, for effecting transfer of management, sanction of the University was necessary; which was to take some time, which necessitated Ext. A2 A.S. No. 559 of 1992 : 26 : agreement. Pursuant to the further steps taken in this regard, the matter was considered and sanction was given by the University as per Ext. C3 dated 13.03.1973, and it was accordingly, that the transfer was given full effect by executing a registered conveyance by way of Ext. A4 dated 06.12.1973; paying the entire stamp duty based on the 'market value' of the properties involved. It is also relevant to note that, by virtue of the terms agreed between the Transferer and the Transferee, the staff of the college were to be treated separately from the rest working under the corporate management of the 'NSS' and a specific provision in this regard was incorporated in Ext. A4 by way of Clause No.5. Such a clause was never there in Ext. A2 agreement. When the plaintiff contended that Ext. A4 was manipulated as the word 'forever' incorporated therein was not there in Ext. A2, there is no such case for them, that 'Clause 5' in Ext. A4 providing for separate treatment to the staff of the Educational Institution covered by Ext. A4 was a manipulation, merely for the reason that such a clause was not there in Ext. A2. This reveals the fallacy in the case projected by the plaintiff/respondent as to the alleged fraud.
27. Yet another aspect to be noted is that, PW1 - signatory to A.S. No. 559 of 1992 : 27 : the plaint has conceded, while deposing before the Court, that all the Trustees of the 'Jnana Ashram Trust' created as per Ext. A1 are well educated, who could read, write and understand English. It is also a fact that Ext. A4 Deed of Transfer was executed by the authorized signatories/Trustees consciously and with open eyes. Absolutely, no case was there for any of the Trustees of the 'Jnana Ashram Trust', from the date of execution of Ext. A4 on 06.12.1973, till such a plea was mooted for the first time by PW1 in the plaint filed in 1985. No such case was raised even in Ext. A11 suit notice. It is also relevant to note that, the Trustees concerned were still living at the time of institution of the suit; but the plaintiff did not choose to implead them in the party array or examine them as a witness. In so far as the executants of Ext. A4 Deed of Transfer were not having any case of 'fraud' for more than 15 years from the date of Ext. A4, it does not fit in the mouth of the plaintiff to say something beyond the intent of the Executants of Ext. A4. That apart, the plaintiff, when examined as PW1, has conceded that no specific pleading on 'fraud' was raised in the plaint with reference to absence of the word 'forever' in Ext. A4 in clear terms. The case projected by the plaintiff with reference to the alleged manipulation in Ext. A4, merely for incorporating the word A.S. No. 559 of 1992 : 28 : 'forever', which was not there in Ext. A2 agreement, has been glibly swallowed by the Trial Court for arriving at the finding on 'fraud' in favour of the plaintiff, which does not stand the test of law and it is liable to be set aside.
28. Although the word 'forever' was subsequently added in Ext. A4, question still remains to be asked to the plaintiff; how 'fraud' can be attributed to the 'NSS'/transferee. Admittedly, Ext. A4 was executed by the Trustees of the 'Jnana Ashram Trust'. But for the vague pleading in the plaint, that the word 'forever' was clandestinely added, there is no specific plea of 'fraud'; nor any evidence was adduced to the effect that it was done by the defendants/'NSS' with ulterior motives. On the other hand, a permanent arrangement was intended to be given effect to, right from the beginning, as evident from the contents of Ext. C1 public notice, Ext. C3 order passed by the University, Ext. A2 agreement [which is not disputed] and the other relevant and undisputed clauses contained in Ext. A4 Deed of Transfer. As it stands so, there is absolutely no merit or bonafides in the contention raised from the part of the respondent/plaintiff in this regard, more so since executants of Ext. A4 Deed of Transfer were alive even at the time of institution of the suit, who were never A.S. No. 559 of 1992 : 29 : included in the party array, nor were cited as witnesses to be examined before the Court below. No specific case was made out under Section 17 of the Limitation Act as well. In view of our finding that Ext. A4 was not the result of any fraud, reliance sought to be placed on Section 17 of the Limitation to mould the case, attempting to cross the bar of limitation, fails. It is held accordingly.
29. The contention of the respondent/plaintiff that there was no intent to transfer and that there is no power for transferring the Trust properties has to be scrutinized in the said background. Ext. A2, which in fact is a provisional agreement executed in the month of June 1971 shows that the 'Jnana Ashram' was identified as the Educational Agency. Clause 1 of Ext. A2 itself stipulates that the name of the Institution [Vyasa College] had to be changed as "Sri Vyasa NSS College"; thus impregnating the name of 'NSS' as part of the name of the college, which indicates a permanent arrangement.
30. It is true that Clause 8 of Ext. A1 Trust Deed stipulates that the Trustee has no power to alienate the 'Trust properties'. Which are the 'Trust properties' is the next question, answer to which is discernible from the Schedule given in Ext. A1 Trust Deed, gist of which translated to English, is reproduced below :
A.S. No. 559 of 1992 : 30 :
"Schedule A:-
(i) 1 acre 26 cents in Survey No. 273, Wadakkancheryy Village (Paddy land)
(ii) 2 acres 27 cents in survey No. 274, Wadakkencherry village (Paddy land)
(iii) 3 acres 14 cents in survey No. 275, Wadakkencherry village (Paramba)
(iv) 5 acres 13 cents in survey No. 1533, Wadakkencherry village (Paramba)
(v) 4 acres 39 cents in survey No. 1478, Wadakkencherry village (Paramba) Schedule B:
Movables such as house hold articles, furniture, cattle and agricultural implements"
31. 'A schedule' in Ext. A1 Trust Deed consists of 5 different items of the immovable properties; whereas 'B schedule' consists of the movables. As admitted by PW1 in his deposition made before the Court below, the Educational Institution or the building/premises where it is situated is not shown as part of the Trust properties. As a matter of fact, the buildings were constructed in the said properties by the sons of the settler in the year 1957/1959 and it was much thereafter, that the Trust itself was created by the father/settler by name Padmanabha Iyer as per Ext. A1, with a clear intent as to what A.S. No. 559 of 1992 : 31 : shall constitute the Trust properties and what shall not. In so far as the College/Educational Institution is not included as part of the Jnana Ashram Trust's assets, Clause III (8) of Ext. A1 Trust Deed cannot place any bar with regard to the right of transfer of the Trustees concerned. This is more so, since the Trust was constituted for a specific purpose, which was essentially to meet the requirements of education of the grandchildren, marriage of the grand daughters, maintenance of the settler and his wife and also to propagate 'Advaita-Vedanta'. Running the Educational Institution for the general public, was never part of the object or purpose of the Trust created as per Ext. A1. At the same time, the Sanyasins/Trustees who were managing the affairs of Ext. A1 Trust were having every right to engage themselves in such other permissible activities which are not covered by Ext. A1, in turn, leading to setting up of the Educational Institution in the late sixties, catering to the request of the general public. Further, as put forth by the learned senior counsel for the appellant, no specific pleadings have been raised with regard to the "parens patriae jurisdiction". The 'Ashram' can have Trust properties as well as other properties. The Educational Institution is admittedly not part of the Trust properties. As such, the said A.S. No. 559 of 1992 : 32 : proposition is not at all attracted to the case in hand. This is more so, since the College was established based on the public need, though the initiative was taken by the authorities of 'Jnana Ashram Trust', and that is all. The College was started always as a 'separate entity' and it was never shown as part of Ext. A1 Trust property. Since the said Educational Institution or properties were not part of the Trust properties, as discernible from Ext. A1 and as admitted by PW1, there is nothing wrong in having executed either Ext. A2 Agreement [which document is not disputed] or the subsequent Ext.A4 Deed of Transfer
- after obtaining approval of the University as per Ext.C1. To put it short, the executants of Ext. A4 were not confronted by any legal bar in having executed the said document by virtue of the powers conferred upon them at that point of time, which was never detrimental to the rights and interests of the 'Jnana Ashram Trust'. This is more so, in view of the categoric assertion made by PW1 before the Court below that the plaintiff did not have any case that the former Trustees of the 'Jnana Ashram Trust' had joined hands with the 'NSS' and had acted against the Trust in any manner, clandestinely or with unlawful designs. As it stands so, there was no legal bar in the execution of Ext. A4 Deed of Transfer by the Trustees A.S. No. 559 of 1992 : 33 : concerned on 06.12.1973 and the reliance sought to be placed on the verdict passed by the Apex Court as reported in AIR 1959 SC 942 (cited supra) on the principle of 'parens patriae jurisdiction' of this Court is quite out of context.
32. Pursuant to Ext. A2 Agreement executed in the month of June 1971 providing for transfer of management, the possession and the administration of the Educational Institution was taken over by the 'NSS' with effect from 01.06.1971, also enshouldering all the liabilities of the Trust in respect of the said Institution towards payment of the balance cost of construction; for effecting maintenance; and to meet the monetary liabilities towards Teachers and Staff, besides providing necessary infrastructure and development. In the course of time, the College which was virtually in the ruins at the time of execution of Ext. A2 Agreement, slowly rose like a Phoenix and the students strength of '300' got increased by several folds. Various constructions/reconstructions were effected in the premises, spending huge amounts as detailed by DW1 and several Courses including at post graduate level, were started in the College, deploying more Teachers and Staff, also providing requisite extent of infrastructure. The Institution has stood the test of time. It was on a fine morning, A.S. No. 559 of 1992 : 34 : that PW1, who had admittedly left the 'Ashram' in the year 1968, popped up in the year 1983, attempting to take the reins by joining hands with the 'VHP'. The course and events clearly reveal, as brought out by the pleadings and evidence on record, that such a move was only with ulterior motives, without any authority of law or factual basis.
33. We find that the Building complex constructed even prior to creation of Ext. A1 Trust was put to use, to run the Educational Institution as 'Jnana Ashram' by the Trustees of the 'Jnana Ashram Trust' created as per Ext.A1, widening their activities on their own will and pleasure, beyond Ext. A1. This had nothing to do with the activities of the 'Jnana Ashram Trust' and as such, the Educational Institution, which came to be popularly known as 'Jnana Ashram' is clearly different and distinct from the 'Jnana Ashram Trust' created as per Ext. A1 Trust Deed. It is also relevant to note [as put forth during the course of hearing, which is not disputed by the learned counsel for the respondent] that some writ petitions were filed by the Staff of the College in connection with their service conditions, seeking to treat all the Educational Institutions including the said College belonging to the 'NSS' under a corporate umbrella, as a single unit. A.S. No. 559 of 1992 : 35 : This was not entertained by this Court and the writ petition was dismissed, placing reliance on 'Clause 5' of Ext. A4 Deed of Transfer, which clearly stipulated that the "Vysa NSS College" had to be treated as a separate unit and hence it stood apart. This is another instance to show that, though the term 'forever' was not there in Ext. A2 Agreement executed in June 1971, by the time the University's sanction was obtained for effecting transfer of management, and the terms and conditions were discussed and settled as incorporated in Ext. A4 providing for permanent transfer 'forever', necessary additional clauses also came to be incorporated therein, authenticity of which had been acted upon by this Court as well.
34. With regard to the question whether Ext. A1 Trust is a 'Private Trust' or a 'Public Trust', the purpose of creation of Ext. A1 Trust is discernible from Clause II which is reproduced below :
"II- Purpose of the Trust .
1. To practise, propagate and revitalize Advaita Vedanta, the Adhyatmic Wisdom, as embodied in the 'Prasthanatraya' and expounded by Sri. Sankara. The pursuit of the other paths like Bhakti Yoga, Karma Yoga and Raja Yoga shall be such as to subserve this main end.
2. For the abovesaid purpose, to admit persons of both A.S. No. 559 of 1992 : 36 : sexes and disciples and give them necessary training and education, as far as funds permit.
3. To hold classes and deliver discourses on Adhyatmic topics and to undertake such other activities, social and cultural, consistent with and conductive to the attainment of the above objects.
4. To arrange for publication of books, periodicals and other literature, for the fulfilment of the above objects.
5. To manage the Trust property, to meet and discharge the liabilities mentioned above, in Section I, to collect grants and donations and administer them for he abovesaid purpose.
6. The main objects Nos.1, 2 and 5, mentioned above, shall be obligatory, while the remaining shall be started, maintained or discontinued, wholly or partly, according to the situation and state of affairs from time to time and at the discretion of the Managing Trustee with absolute powers of management or the Board of Trustees in management as the case may be. Liabilities as mentioned under Section 1 and 2 of Clause I read as follows :
"1. Giving higher education to P.S. Padmanabhan, aged 16, son of Trustees Nos. 3 and 4 and grandson of the settler and for arranging for the education and marriage of A.S. No. 559 of 1992 : 37 : Kumaris Lakshmi and Rukmani, children of Trustees Nos.3 and 4 and grand-daughters of the Settler, aged 11 and 4 years respectively, from out of the income of the properties, and
2. Maintenance of the Settler and his wife, Sreemathi Lakshmi Ammal for their lives."
From the above, it is clear that, but for the requirement to propagate the 'Advaita philosophy', everything else is purely private.
35. The salient features and difference between 'private trust' and 'public trust' have been explained by the Apex Court in AIR 1957 SC 133 (cited supra). Even if it is held that Ext. A1 is a Public Trust, in view of the admitted fact and the finding already rendered by us that the Educational Institution/Building complex and the premises are not the Trust properties covered by Ext. A1 Trust Deed, the exclusion of the power of the Trustees to transfer the title or possession over or in respect of the "Trust properties" as envisaged under Clause III (8) of Ext. A1 Trust Deed is not attracted.
36. There is a contention for the respondent/plaintiff that the transfer envisaged under Ext. A1 agreement and Ext.A4 Deed of Transfer was only in respect of the "administration and management"
of the Educational Institution and never the title. Here, a reference is A.S. No. 559 of 1992 : 38 : necessary to Clause 2 of Ext. A2 Draft Agreement, which is reproduced below :
"2. The 1st party hereby transfers all its rights of management and administration over the Sri Vyasa College, Vyasagiri, and its movable and immovable properties described in Schedule A to Annexure I and in Schedule B, Annexure I respectively to the 2nd party and thenceforward the entire management and administration of the properties of the College will vest in the 2nd party who shall carry on the management of the said college in accordance with the rules and regulations of the University."
It was in conformity with the above agreement that Ext. A4 registered Deed of Transfer came to be executed after obtaining necessary sanction from the University concerned for causing permanent transfer of the administration/management of the institution. Even otherwise, the possession was parted with as admitted by the plaintiff, pursuant to Ext. A2 agreement executed in June, 1971. The properties were being exclusively possessed and enjoyed by the appellant NSS running the Educational Institution, also putting up additional improvements by way of buildings & structures and providing necessary infrastructure, conducting more and more A.S. No. 559 of 1992 : 39 : courses, giving admission to large no. of students. Going by the nature of contentions raised, the possession of the building and premises [sizable extent was made available by the Government for running the college, catering to the needs of the general public], was quite hostile to the 'Ashram' and the finding of the Trial Court to the contrary [paragraph 17 of the judgment] is not correct or sustainable. It is also relevant to note, that all the requirements to establish adverse possession stand satisfied by the appellant and there was no intervention in any manner with the possession ever from 1971. However, a feeble attempt was sought to be made by the learned counsel appearing for the respondent/plaintiff, during the course of hearing, stating that no specific plea of 'adverse possession' was ever raised by the defendants. As already taken note of by this Court, the appellants/defendants raised a specific contention in this regard, as contained in paragraph 1 of the written statement, and the requirements were established; despite which no evidence was adduced by the plaintiff to rebut the position.
37. It is pointed out on behalf of the respondent that, since there is no law that a Trust cannot create another Trust, handing over of the Institution to the 'NSS' has to be considered as a Trust created A.S. No. 559 of 1992 : 40 : under Ext. A1 Trust. The said proposition is stated as puerile, as put forward by the learned Senior counsel for the appellants, pointing out that the 'NSS' is a separate entity of its own, having various commitments and obligations, who is in no way connected with any Trust activity. The only public element, if at all any in Ext. A1 Trust, is with regard to the propagation of 'Advaita philosophy'. It is not the said function that has been handed over or entrusted with the 'NSS' as per Ext. A2 Agreement or Ext.A4 Deed of Transfer. Running of the Educational Institution was taken over with the liabilities in toto [including that of the balance cost to be paid for construction, liability towards Teachers and Staff and such other heads] by the NSS. The contents/various Clauses of Exts. A2 and A4, clearly reveal that the functions discharged in running the College by the 'NSS' are not the functions to be discharged by the 'Jnana Ashram Trust' by virtue of Ext.A1, but it forms part of the supplemental duty of the State in the field of Education. There may be absolute prohibition as per Ext. A1 [by virtue of Clause III (8)] against selling of the Trust Properties (religious properties); but there can be sale of 'Secular properties' as the Trust can acquire such properties, which can be disposed of as well. This being the position, even if it is held that Ext. A1 is a 'Public A.S. No. 559 of 1992 : 41 : Trust', it does not tilt the balance in any manner in so far as the issue involved in this case.
38. Coming to the various rights, liabilities and obligations under Ext. A2 Agreement, apart from the change in name of the Educational Institution as "Sri Vyasa NSS College" suggesting a permanent arrangement of transfer [Clause 1 of Ext. A2], more assertive expression has been used in Clauses 2 and 3, that transfer of management and administration of College and properties in the schedule will stand "vested" with the 'NSS'. Clause 4 specifically stipulates that the transferee 'NSS' shall discharge the existing liabilities of the first party/'Jnana Ashram Trust' for construction of the College buildings and administration, which comes to the tune of Rs. 2 lakhs. The pleadings and evidence adduced reveal that the said obligation stands satisfied by the transferee. Clause 5 of Ext. A2 casts an obligation on the transferee to create an endowment in the name of 'Jnana Ashram' effecting a fixed deposit of Rs.43,000/- for awarding scholarships as mentioned therein. Clause 6 of Ext. A2 specifically stipulates that all the expenses after 31.03.1971 shall be met by the 'NSS'. Clause 7 of Ext.A2 provides that 'Water' shall be provided by the NSS free of cost to the 'Ashram', whereas Clause 8 A.S. No. 559 of 1992 : 42 : says that the 'N.S.S.'/transferee shall promote spiritual activities and that the Campus and Building/Hall [for promoting such exercise/religious education] shall be given to the 'Ashram' for occasional use, free of charge.
39. A question may naturally arise, why should all such requirements/obligations be enshouldered by the 'NSS' and what is the 'consideration' for such agreement. The evidence on record clearly reveals that, it was by virtue of the transfer of the entire rights and interests over the above said properties/Educational Institution, that such commitments were made by the 'NSS' and not because of any pious obligation to the 'Jnana Ashrasm Trust'. There is absolutely no Clause is Ext. A2 to retrieve or take back the Institution and no tenure is specified in Ext. A2, if it were to be a temporary arrangement. No reference has been made by the plaintiff to Ext.A2 anywhere in the plaint and there is no dispute as to Ext. A2 or its contents, which is an undisputed document produced from the part of the plaintiff. It was based on Ext. A2, that immediate arrangement was made, taking note of the need of the hour, to run the Educational Institution from the next academic year i.e. 01.06.1971 onwards. After getting formal sanction from the University for effecting transfer A.S. No. 559 of 1992 : 43 : of management as per Ext.C1, a proper Deed of Conveyance was registered as borne by Ext.A4, also satisfying the requisite stamp duty based on the 'market value' of the property involved therein. The terms contained in Ext.A2 Agreement have been given effect to in Ext. A4 Deed of Transfer as well. Taking note of the subsequent developments, a specific clause was also incorporated to ensure that 'Staff' of the college will be treated as a separate lot, from the staff of other colleges of the corporate management, forever. Since validity of these additional clauses, which were not there in Ext. A2 Agreement, has not been disputed by the plaintiff and further since the intention of the executants of Exts.A2 and A4 to have the arrangement be effected on a permanent basis [also as discernible from Ext. C1 public notice] and above all, since the executants of Ext. A4 did not have any case of 'fraud' with reference to the term 'forever' incorporated in Ext. A4 Deed of Transfer [for 15 years, till the date of filing the suit or even thereafter], the allegation of 'fraud' raised by the plaintiff (that too, in vague terms) is only to mould the case, indirectly trying to cross the bar of limitation. PW1 [signatory to the plaint] who was stated as a 'Swami' before leaving the Ashram in 1968 and who admittedly had joined/associated with the 'VHP' A.S. No. 559 of 1992 : 44 : thereafter cannot be regarded as 'Swami' or 'Sanyasin' in connection with Ext. A1 Trust, for want of specific pleadings/evidence in this regard.
40. Incidentally, it will be worthwhile to make a reference to Section 10 of the Limitation Act [which is sought to be relied on by the plaintiff/respondent], is extracted below :
"10. Suits against trustees and their representatives: Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.
Explanation : -For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be trustee thereof. Section 10 of the Limitation Act provides a remedy against the deeds or misdeeds of the former Trustees and their representatives. The NSS/defendants were never the 'Trustee' or Trustees and their A.S. No. 559 of 1992 : 45 : representatives without any bar of limitation. The NSS/defendants were never the 'Trustee' or 'former Trustees' under any circumstances. As such, the idea and understanding of the plaintiff/respondent in this regard relying on Section 10 of the Limitation Act to cross the bar of Limitation is thoroughly wrong and misconceived.
41. As mentioned already a submission was made across the Bar by the learned senior counsel for the respondent/plaintiff that Exts. A1/A4 agreement with the appellant NSS has to be treated as a "Trust within Ext. A1 Trust", also seeking to place reliance on a verdict passed by the Andhra Pradesh High Court in AIR 1955 AP 18 (cited supra). It may be true that there is no specific bar in creating a Trust within a Trust. But, the 'Trustee within the Trust' should be a body qualified to be a Trustee as per the basic deed; and further, there should be an enabling provision in this regard. Obviously, Ext.A1 Trust Deed does not disclose any enabling provision to create a Trust within Ext.A1 Trust and further no stranger like the 'NSS', who does not apparently qualify to be a 'Trustee' as per Ext. A1 Trust could be considered to be a Trustee for inferring a 'Trust within Ext. A1 Trust'. The said contention can only be repelled by this Court and it A.S. No. 559 of 1992 : 46 : is ordered accordingly. With regard to the case dealt with in AIR 1955 AP 18 [cited supra], it was a case filed by the existing Trustee against Ex-Trustee. As such, the said decision does not come to the rescue of the signatory to the plaint, to hold that the suit is maintainable. This is more so, since no specific pleading/evidence has been adduced to show that the signatory to plaint [PW1] was appointed as a Trustee under Ext. A1 Trust Deed, but for the nomination made by the 'VHP' who is a stranger to Ext. A1 Trust and further since the 'NSS'/appellants/defendants were not functioning as a Trustee under the former Trustees of Ext. A1 'Jnana Ashram Trust' at any point of time.
42. The suit was for declaration and inunction. No relief by way of recovery of possession was sought for. It being a simple suit for declaration and mandatory injunction, by virtue of the mandate of Articles 58 and 113 of the Limitation Act, the prescribed time is only 'three years' from the date of occurrence of the cause of action. Viewed in the said perspective, this Court does not require any second thought to hold that the suit filed by the plaintiff in the year 1985 was highly barred by limitation and the suit was liable to be dismissed on this count as well. The finding and reasoning given by the Court A.S. No. 559 of 1992 : 47 : below is not correct or sustainable.
43. The admitted version of PW1 is that he is having association with the 'VHP' and he is desirous to see that the 'VHP' takes over the Institution. It is further stated that, it was the 'VHP' who had sent nominations in respect of the Trustees to Ext.A1 Trust with reference to Ext.A5 minutes of the meeting held on 10.05.1983. The case projected by PW1 is, as if the 'VHP' were standing in the shoes of 'Jnana Ashram Trust'. If this be so, they are estopped from contending that the transfer was bad or invalid, as the transfer was made to the NSS as per Ext. A2 agreement [not a disputed document] requesting the 'NSS' to take over the Institution, followed by Ext. A4 Deed of Transfer. Going by the contents of Exts. A2 and A4 and also as borne by Ext. C1 public notice, the liabilities were taken over by the NSS, also agreeing/undertaking to do several favours to the 'Jnana Ashram Trust' under different heads. As such, the 'Trust' was a beneficiary of the arrangement. This being the position, the party who was benefited by the arrangement cannot subsequently challenge the transaction on a later date. We also find support from the ruling rendered by the Full Bench of this Court in Ramaswami Pattamali Vs. Lakshmi [1962 KLT 243 (F.B)] - [paragraph 9 - at page 247]. A.S. No. 559 of 1992 : 48 : That apart, Ext. A2/A4 came to be executed in the interest of the Executants/Transferrers. Having stood the test of time from 1971/1973, they are to be presumed as valid in all respects. We find support from ruling rendered by the Supreme Court in Sree Sree Iswar Gopal Jieu Thakur Vs. Pratapmal Bagaria & Others [AIR 1951 SC 214] [paragraph 6 and 7].
44. The finding of the Court below that the transfer vitiates Section 36 of the Indian Trusts Act is wrong and misconceived. Section 36 deals with 'perpetual leases' prescribing a maximum time of 21 years. Further, the provisions of the Indian Trusts Act cannot applied to a Public Trust; especially when Ext.A1, according to the plaintiff, is a 'Public Trust'. That apart, it can only be in respect of 'Trust Property'; it at all the provision is attracted. Admittedly, the Educational Institution was never shown as the Trust property in Ext. A1. Though a feeble submission was made during the course of hearing, that it has to be treated as a 'Trust within Trust', as mentioned already, no such case was ever pleaded or proved and as such, the said contention, having no legs to stand, cannot be the subject matter of consideration in this appeal. This is more so, when the appellant/defendant 'NSS' was in no way connected with Ext. A1 A.S. No. 559 of 1992 : 49 : Trust activities.
45. In the above facts and circumstances, we find that the Judgment and Decree passed by the Court below stand actually contrary to the pleadings and the evidence brought on record. We find that the suit is not maintainable for having no 'locus standi' for the signatory to the plaint. No case on 'fraud' is made out and the suit is also bad for limitation. Accordingly, we set aside the Judgment and Decree and dismiss the suit with cost, as not maintainable, both in law and on facts. Appeal stands allowed with cost.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
ANIL K. NARENDRAN,
JUDGE
kmd /True copy/
P.A. to Judge