Kerala High Court
Varghese Paul vs Baselius Marthoma Didymus on 6 May, 2010
Author: Pius C. Kuriakose
Bench: Pius C.Kuriakose, C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 235 of 2009()
1. VARGHESE PAUL,S/O.LATE P.GHEE VARGHESE
... Petitioner
Vs
1. BASELIUS MARTHOMA DIDYMUS-1
... Respondent
2. FR.JOHN KONATTU,S/O.LATE FR.ABRAHAM
For Petitioner :SRI.S.VINOD BHAT
For Respondent :SRI.S.SREEKUMAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :06/05/2010
O R D E R
PIUS C. KURIAKOSE & C.K. ABDUL REHIM, JJ.
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FAO. No. 235 of 2009, & WP(C) Nos. 2618 & 2634 of 2010
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Dated this the 6th day of May, 2010
J U D G M E N T
Pius C. Kuriakose, J.
F.A.O.No.235/09 is directed against the order passed by the Principal Sub Court, Kottayam in I.A.2141/2009, an application for temporary injunction in O.S.No.358/2009. The appellant in the F.A.O. was the second defendant in the suit and the respondents in the F.A.O. are the plaintiffs/petitioners therein. W.P.(C) No.2618/ 2010 is directed against the order of the same Sub Court in I.A.No.2431/09 in the same suit. The prayer in the above interlocutory application was for a direction that certain documents seized by the Advocate Commissioner be returned to the petitioner and also for permitting the petitioner to break open the locker, almirah and safe, as the keys thereof are seized by the Commissioner. The writ petitioners are the petitioners in the interlocutory FAO. 235/09 etc.
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application, who are defendants 1 and 2 in the suit and the respondents are the respondents in the interlocutory application, viz., the plaintiffs in the suit. W.P.(C) No.2634/2010 is directed against the order in I.A.No.2430/2009 in the same suit, which was an application for preliminary consideration of the question of maintainability of the suit, raised by the petitioners. The writ petitioners are the petitioners in the said application, viz., the defendants in the suit and the respondents are the plaintiffs in the suit. The learned Subordinate Judge disposed of all the three interlocutory applications by a common order and we feel that it will be convenient to dispose of the two Writ Petitions and the F.A.O. jointly. The parties will be referred to as they were before the trial court.
2. The suit, O.S.358/2009 was filed by the plaintiffs, seeking a decree directing preparation of a scheme for the FAO. 235/09 etc.
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management and administration of the first defendant, a Trust incorporated in the year 1964, under the name Manohar Hills Charitable Trust. The material averments in the suit are that in the year 1975, the first plaintiff became the Trustee and the Chairman of the Trust and President of the governing body of the Hospital, viz., M.G.D.M. Hospital, Kangazha. It is averred that the second plaintiff is the priestly trustee of the Malankara Church, with whom the management and administration of the above hospital of the first defendant is vested. I.A.No.2141/09 was filed by the plaintiffs seeking an injunction, restraining the defendants from alienating the plaint schedule properties or creating any charge thereupon and from inducting strangers into the plaint schedule properties. Along with the plaint, the plaintiffs produced the Trust Deed, which was provisionally marked as Ext.A1. Ext.A1 Trust Deed is dated 6.7.2004. The aims and objects of the Trust, as incorporated in Ext.A1 FAO. 235/09 etc.
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were to establish and run hospitals and other institutions rendering medical aid, grant donations and other kinds of financial and medical assistance to orphanages, poor houses and other institutions engaged in giving relief to poor and disabled persons. The averments in the plaint are to the effect that in furtherance of the objectives of the Trust, the first defendant Trust started a hospital, viz., Mar Gee Varghese Dionysius Memorial Hospital, Kangazha (M.G.D.M. Hospital, for short), in 1964. The plaint alleged that the second defendant in the suit was mismanaging the Trust and was taking steps to take loans by mortgaging the Trust properties and also by leasing out them on long term basis. It was on the above allegation that temporary injunction was sought for, as per I.A.No.2141/09. The second defendant/appellant in F.A.O.No.235/09 filed a counter affidavit on the reason that he was largely handicapped from filing a detailed counter affidavit, as the relevant FAO. 235/09 etc.
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documents were seized by the Advocate Commissioner appointed by the court and are presently kept under lock and key. One of the contentions raised in the counter affidavit was that the suit as framed was not maintainable, in as much as, the first defendant Trust was not a private Trust, but was a public charitable Trust. It was further contended that the suit invoking Order I Rule 8 Civil Procedure Code was not maintainable and hence the question of maintainability of the suit was to be decided as a preliminary issue in the suit. As regards the allegation of alienation and encumbering, it was averred that being the Managing Trustee of the first defendant, it is not possible to alienate or encumber the property on his own volition.
3. The court below, on considering the pleadings and the materials which were placed on record by the parties as well as the submissions addressed at the Bar, came to the conclusion that the first defendant Trust cannot be termed FAO. 235/09 etc.
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as a public Trust. It is essentially on the basis of the above conclusion that the court below went on to allow the application for temporary injunction and therefore, in F.A.O.No.235/09, most of the grounds raised are challenging the finding that the first defendant Trust is not a public trust, but is only a private Trust. Inter alia, it is urged in the F.A.O. that the trial court lost sight of the fact that the Trust was formed in the year 1964 with the main objective of rendering assistance to the poor and the needy. In the light of the admission of the plaintiffs in the plaint that their interference in the Trust was only in the year 1975, the court below should not have held that the beneficiaries of the Trust were only those who have the patronage of the plaintiffs.
4. It is urged that it is admitted in the plaint that the objectives of the Trust were not intended to be given to any particular class, which could be segregated from the public FAO. 235/09 etc.
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at large. Hence, there is no warrant for the finding that the Trust is a private one and not a public one.
5. It is highlighted that Ext.A1 Trust Deed does not speak of any particular class of beneficiaries and therefore, the court below should have inferred that the Trust was a public Trust and that the suit could be maintained only on the basis of leave granted under Section 92 of the Civil Procedure Code.
6. Coming to the merits of the order of injunction, it is urged that the court below should have permitted the defendants to peruse the records in the office of the Trust for the purpose of filing a detailed counter affidavit and enabled the filing of a detailed counter affidavit and that the essential conditions for grant of temporary injunctions, viz., prima facie case, irreparable injury and the balance of convenience were not properly considered or decided.
7. Lastly, it is urged that in view of the obvious FAO. 235/09 etc.
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position that no Trust property could be alienated or encumbered by the Managing Trustee alone, the injunction sought for should not have been granted.
8. In W.P.(C) No.2618/2010, directed against the order in I.A.2431/09, it is urged that the court below failed to look into the contrasting disparity in the affidavit and the petition. It is urged that the Commissioner transgressed the limits of the commission warrant given to him . It is urged that the respondents in the interlocutory application purposely played fraud on the court by seeking relief in the petition, not founded on the averments in the affidavit in support thereof. It is urged that the observation of the court that the facts and circumstances as disclosed from the records and pleadings indicate maladministration prima facie, is mere surmise. Ext.P1 produced in this Writ Petition is a copy of the commission application, I.A.No.2142/2009. Ext.P2 is a copy of the report dated 29.7.2009 submitted by FAO. 235/09 etc.
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the Commissioner and Ext.P3 is a copy of I.A.No.2431/2009, filed by the petitioners. Ext.P4 is the
common order passed by the learned Sub Judge in the three interlocutory applications.
9. The document, Ext.P1 produced in W.P.(C) No.2634/2010 is a copy of I.A.No.2430/2009. Ext.P2 is a copy of the counter affidavit filed by the petitioners, to the injunction petition, raising the question of maintainability of the suit. Ext.P3 is a copy of the common order passed by the court.
10. The grounds urged mainly in the Writ Petition are that the finding of the court below on the question of maintainability of the suit is wrong and that the court below did not properly understand that Ext.P1 application was filed by the petitioners for setting at naught the possible argument to shelve the question of maintainability at a later stage of the suit. It is alleged that the court below thought FAO. 235/09 etc.
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that the question of maintainability of the suit has a vital bearing on the disposal of the injunction application and the application for return of documents. Yet erroneously that the question of maintainability is considered in Ext.P1 application. It is urged that what the court below should have allowed Ext.P1 first and then proceeded to deal with the other two interlocutory applications.
11. Very extensive submissions were addressed before us by the learned counsel for the parties, viz., Sri.R.D.Shenoy, Senior Advocate for the appellant/writ petitioners and Sri.S.Sreekumar, Advocate, for the respondents. The submissions of the learned counsel were founded on the basis of the grounds raised in the memorandum of appeal as well as in the Writ Petitions. Our attention was drawn by the learned counsel to the various materials, which were placed on record by the parties before the court below and particularly to the plaint, Ext.A1 Trust FAO. 235/09 etc.
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Deed and Ext.A4 constitution and functions of the Governing Board of the Hospital. The learned counsel relied on a large number of judicial precedents in support of the propositions advanced by them. Strong reliance was placed by Sri.R.D.Shenoy, on the judgment of the Supreme Court in R.M.Narayana Chettiar v. N.Lakshmanan Chettiar (AIR 1991 SC 221). The learned counsel argued on the strength of the above decision that the court which is considering the question whether the suit is one which falls within the ambit of Section 92 of the Civil Procedure Code is expected to look into the allegations in the plaint. The learned Senior counsel argued that this is a case where it has been expressly stated in the plaint that the recitals in Ext.A1 Trust Deed which is significantly produced along with the plaint itself, ought to be read as part of the plaint itself. Reference was made by the learned senior counsel to paragraph 2 of the plaint. The learned senior counsel also FAO. 235/09 etc.
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referred to all the averments in the plaint and particularly in pagraph 5 of the plaint, wherein, it is stated that the M.G.D.M. Hospital was started as part of the charitable objectives of the Trust and with the object of rendering medical aid to the poor and the needy. Sri.Shenoy submitted that the finding of the court below that the Trust is a private Trust is totally fallacious. According to him, such a finding has been entered mainly on the basis of Ext.A4 constitution and functions of the Governing Board of the Hospital. A4 was brought into existence only in 1975. The Trust, on the contrary was born 11 years earlier and the suit is in respect of that Trust. The question whether that Trust is a public Trust or a private Trust, cannot be decided on the basis of an arrangement introduced 11 years after its birth.
12. Sri.R.D.Shenoy placed reliance also on the judgment of the Supreme Court in Vidyodaya Trust v. FAO. 235/09 etc.
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Mohan Prasad [2008(2) KLT 68 (SC)] (A decision which interestingly was relied on by Adv.Sri.S.Sreekumar also). Sri.Shenoy submitted on the basis of the above decision that the question to be considered is whether the suit was instituted for vindicating public rights or purely private rights. The averments in the plaint will reveal that when the purpose of the suit is vindication of public rights, then it will have to be found that sub section 1 of Section 92 of the Civil Procedure Code will be attracted. The learned senior counsel submitted that what was important to be considered is not just the relief portion of the plaint, but the entire averments in the plaint for finding out whether it is a public right that is sought to be vindicated. Sri.R.D.Shenoy relied also on the judgment of the Supreme Court in Swami Parmatmanand Saraswati v. Ramji Tripathi (AIR 1974 SC 2141). The learned counsel submitted that in the first instance, it is only the allegations in the plaint that are to be FAO. 235/09 etc.
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looked into for deciding whether the suit falls within the ambit of Section 92. Particular reliance was made by the learned senior counsel on paragraph 10 of the above judgment.
13. Sri.R.D.Shenoy relied also on the judgment of the Supreme Court in Deoki Nandan v. Murlidhar (AIR 1957 SC 133), for the purpose of expatiating his arguments on the question of distinction between a public Trust and a private Trust. He argued that the distinction between a private Trust and a public Trust is that in the former, the beneficiaries are specific individuals, whereas, in the latter, they are general public or a class thereof. In the former, the beneficiaries are persons who are ascertained or capable of being ascertained and in the latter, they constitute a body which is not capable of ascertainment. The learned senior counsel referred to Lewin on Trusts (18th Edition page 22, caption-Public and private trusts). Reliance was placed by FAO. 235/09 etc.
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Sri.Shenoy also on the judgment of the Division Bench of this Court in Thomas v. State of Kerala (2008(1) KLT
363). Referring to the above judgment, the learned senior counsel submitted that the distinction between private and public Trust is that where beneficiaries of the Trust are not individuals or ascertained individuals or family members but are unascertained members of Christian faith as well as members belonging to public, it is public trust.
14. Sri.Shenoy relied also on the judgment of the Travancore-Cochin High Court in Mathevan v. Muthia (AIR 1952 Travancore-Cochin 323) and argued that the essential feature of a public trust is that the endowment must be for a public purpose of a charitable or religious nature and that the beneficial interest in the trust must be vested in the public in general or in a considerable section of the public.
15. Adv.Sri.S.Sreekumar, learned counsel for the respondents would put up a very spirited and sustained FAO. 235/09 etc.
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defence of the impugned orders. As regards the orders which were challenged in the Writ Petitions, he submitted that the jurisdiction of this Court under Article 227 was a visitorial jurisdiction, which is not expected to be invoked for correcting each and every mistake. According to him, there is no justification for interfering with the orders challenged in the Writ Petitions. The order challenged in the F.A.O. also, according to him, did not suffer from any infirmity. Mr.Sreekumar would place reliance on a large number of decisions, including certain decisions, which were cited before us by Sri.R.D.Shenoy. Sri.Sreekumar relied on paragraph 10 of the judgment of the Supreme Court in Swami Parmatmanand Saraswati v. Ramji Tripathi (AIR 1974 SC 2141). The learned counsel submitted that a suit, whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under Section 92. It is not every suit FAO. 235/09 etc.
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claiming the reliefs specified in the section that can be brought under the section, but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought.
16. Sri.S.Sreekumar relied on the judgment of the Supreme Court in Vidyodaya Trust v. Mohan Prasad (supra) and submitted that when on a perusal of the pleadings it becomes clear that the persons are highlighting private grievances and not any public grievances, it has to be found that the suit does not fall within the ambit of Section 92 of the Civil Procedure Code. Sri.S.Sreekumar placed reliance on the judgment of the Travancore - Cochin High Court in Ananda Theertha v. Kumaraswami (AIR FAO. 235/09 etc.
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1592 Travancore-Cochin 134). It was the following ratio in the above decision that was relied on by him :
"The fact that anybody was at liberty to go at any time to the Math (which was charitable or religious institution) to worship the Swami and take food there, plainly establishes that the trust was one for public purposes".
The following ratio of the above decision was also relied on by him:
"A suit under S.92 is a representative suit and if properly conducted, the decision would bind all persons who have some interest in the matter in common with the plaintiffs on record even though they are not 'eo nomine' parties to the suit."
Mr.Sreekumar relied on the judgment of the Supreme Court in R.M.Narayana Chettiar v. Lakshmanan Chettiar (AIR 1991 SC 221). It was the following passage for the above decision, which is a quotation from another judgment of the Supreme Court in Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai Narsibhai (AIR 1952 SC 143), that was highlighted by him :
FAO. 235/09 etc.
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" A suit under Section 92, Civil Procedure Code, is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions of the court are necessary. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provisions of Section 92, Civil Procedure Code..."
17. Mr.Sreekumar relied on the judgment of the Supreme Court in Bala Shankar Maha Shanker Bhattjee v. Charity Commissioner, Gujarat State (1995 Suppl. (1) SCC 485). He relied on paragraphs 8, 9 and 10 of this judgment. In paragraph 8, Black's Law Dictionary, 6th Edition, the definition of "public trust" is reproduced as follows : "Public trust" means one constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description; public trusts and charitable trusts may be considered in general as synonymous expressions". "Charitable trust" is defined as follows :
FAO. 235/09 etc.
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"Trusts designed for the benefit of a class or the public generally. They are essentially different from private trusts in that the beneficiaries are uncertain. In general, such must be created for charitable, educational, religious or scientific purposes."
The judgment extracts the definition of public and private trust in P.Ramanatha Aiyar's 'The Law Lexicon' as follows :-
"In the case of a temple an idol publicly constituted and publicly accessible in which the appearance may be what one may describe as ambiguous, one would expect and ought to insist upon clear evidence of permission given or licence given and permission withheld because it is equally true that a private individual may construct, out of his private purse a private temple and idol retaining the control and management in his own hands and that of his family or some other selected individuals and yet so conduct himself as to provide conclusive evidence of dedication by implication and by conduct."
The judgment lays down that a useful test, for a Judge to apply to see whether the evidence satisfies the conditions of the private trust, is to ask himself whether any of the acts testified to by the witnesses could have been prevented or penalised by proceedings for trespass. In private trust the beneficial interest is vested absolutely in one or more FAO. 235/09 etc.
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individuals who are, or within a given time, may be definitely ascertained. On the other hand public trust has for its object the members of an uncertain and fluctuating body and the trust itself is of a permanent and indefinite character and is not confined within the limits prescribed to a settlement of a private trust.
18. In the said decision, relying on the judgment of the Supreme Court in Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas [(AIR 1970 SC 2025), it is stated that for construing whether a temple is a public trust or private trust, the following tests can be taken :
"(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(2) Are the members of the public entitled to worship in that temple as of right?
(3) Are the temple expenses met from the contributions made by the public?
(4) Whether the Sevas and Utsavas conducted in the temple are those usually conducted in public temples?
FAO. 235/09 etc.
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(5) Have the management as well as the devotees been treating that temple as a public temple?"
19. Mr.Sreekumar relied on the judgment of the Supreme Court in Kuldip Chand v. Advocate General to Government of Himachal Pradesh [(2003) 5 SCC 46)]. It was submitted on the basis of the above decision that the following tests are sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature :
(1) Where the origin of the endowment cannot be ascertained, the question whether the use of the temple by members of the public is as of right.
(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large.
(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive FAO. 235/09 etc.
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properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.
(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.
20. Mr.Sreekumar relied on the judgment of the Supreme Court in Swami Parmatmanand Saraswati v. Ramji Tripathi (AIR 1974 SC 2141) (discussed supra) also. Lastly, Mr.Sreekumar relied on the judgment of the Supreme Court in R.Venugopala Naidu v. Venkatarayulu Naidu Charities (AIR 1990 SC 444). The summary of the points decided in the above decision is as follows : A representative suit under Order I Rule 8, Civil Procedure Code binds all persons interested in the trust. Persons interested in trust have locus standi to raise objection. Their names need not be in the title of suit as parties. A FAO. 235/09 etc.
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suit whether under Section 92 Civil Procedure Code or under Order I Rule 8 is by the representatives of large number of persons who have a common interest. The very nature of a representative suit makes all those who have common interest in the suit as parties.
21. Mr.Sreekumar would very forcefully support the conclusion of the court below that the first defendant trust is a private trust. He would highlight (as the court below did) clause 19 of Ext.A1 trust deed and submit that the very fact money belonging to the trust is directed to be deposited in the investments envisaged by Section 20 of the Indian Trust Act would very strongly indicate that the trust is a private trust. He would submit that it is the averments in the plaint which are to be looked into and according to him the very first averment in the plaint is that the first defendant trust is a purely private trust. He referred to Ext.A4 constitution of the governing board of MGDM Hospital which is the most FAO. 235/09 etc.
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valuable property of the first defendant trust. Ext.A4, according to him, will show that the hospital as well as the institutions attached to the same are vested in and run by the Malankara Orthodox Syrian Church of which the first plaintiff is presently the supreme head. Ext.A4, in his opinion, amounts to an amendment of Ext.A1 trust deed. A4 is not under challenge. In fact, A4 has been accepted by the contesting defendant in the suit also, who is the managing trustee of the first defendant trust. He argued that A4 will strongly indicate that the beneficiaries of D1 trust are not public generally, but at best, an ascertainable group of the public owing allegiance to the first plaintiff. The finding that D1 is a private trust has been entered by the court below on the basis of evidence available on record and there is no reason to interfere with the same.
22. Mr.Sreekumar submitted that the grievance voiced in Writ Petition No. 2634 of 2010 is only technical. Even FAO. 235/09 etc.
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through the IA was dismissed, the reliefs sought therein was granted. He submitted further that there is no warrant for interference with the order impugned in Writ Petition No. 2618 of 2010. There is no provision in the Code of Civil Procedure for filing provisional and final written statements. At any rate, according to him, the court has under the order impugned in that writ petition taken care of the writ petitioners' interests. As regards the order of injunction impugned in the first appeal, Mr.Sreekumar submitted that the appellant cannot have any grievance about that order since he had undertaken that he had no intention to alienate or encumber the properties.
23. We have very anxiously considered the rival submissions addressed at the Bar in the light of the ratio emerging from the judicial precedents cited both by senior counsel Mr. R.D.Shenoy and the learned counsel Mr.S. Sreekumar. We have gone through the available records. FAO. 235/09 etc.
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24. The most important question that requires to be decided in these cases is whether the finding of the court below that the first defendant trust is a private trust and that the suit is maintainable before the Sub Court notwithstanding Section 92 of the Code of Civil Procedure is legally and factually sustainable. What we notice is that though the learned Subordinate Judge technically dismissed the application I.A. No. 2430 of 2009, which was for consideration of the question of maintainability of the suit as a preliminary issue, the learned Judge did consider the question of maintainability and answered the question in favour of the plaintiff. The decision to pass the temporary injunction sought for by the plaintiff vide IA. No. 2141 of 2009 in fact turns to a considerable extent on the basis of that finding.
25. The title of Section 92 of the Code of Civil Procedure is public charities. Section 92 provides that suits FAO. 235/09 etc.
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in which breach of trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of the trust are to be instituted after obtaining Court's leave in the principal civil court of original jurisdiction, i.e., the District Court. Section 92 (1) provides for the reliefs for which such suits are to be filed:
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
FAO. 235/09 etc.
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(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
A reading of Section 92(2) will show that except as provided by the Religious Endowments Act, 1863 or by any corresponding law in force immediately prior to 1-11-1956 in Part B States as envisaged under section 92(1) can be instituted only in conformity with Section 92(1). Thus it is clear that if the first defendant trust is a public trust and if the reliefs sought for in the suit are among the reliefs mentioned under Section 92(1), in order to maintain the suit, leave of the court is necessary. The judgments of the Supreme Court in Swami Parmatmanand Saraswati v.Ramji Tripathi, (AIR 1974 SC 2141), R.M.Narayana Chettiar v. Lakshmanan Chettiar (AIR 1991 SC 221), Vidyodaya Trust v. Mohan Prasad (2008(2) KLT 68 (SC) are all to the effect that for considering whether a given suit falls within the ambit of Section 92, in the first instance, it FAO. 235/09 etc.
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is the allegations in the plaint which are to be looked into. Significantly all those decisions were rendered in cases where leave was sought for by the plaintiffs and the Supreme Court was examining either the correctness of the leave granted or propriety of granting leave without notice to the defendant trust or the functionaries of the defendant trust at the relevant time. But according to us, it will not be correct to say that the question as to whether the defendant trust is a public trust or a private trust is to be decided on the basis of the averments in the plaint alone. In fact, the decisions of the Supreme Court such as those in Deoki Nandan v. Murlidhar (AIR 1957 SC 133) followed by a Division Bench of this Court in Thomas v. State of Kerala (2008 (1) KLT 363), the judgment of the T.C. High Court in Mathevan v. Muthia (AIR 1952 TC 323), the judgment of a learned single Judge of this Court in G.Koshy v. Chacko Thomas, (AIR 1963 Ker. 191) are decisions which throw FAO. 235/09 etc.
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more light on the distinction between public and private trust. However, if in a given case it is clear from the averments in the plaint itself that the trust in question is a public trust, then certainly that will be a strong circumstance in favour of the defendant for deciding that the trust is not a private trust, but is a public trust. In the present case, since Ext.A1 trust deed has been produced along with the plaint and the plaintiffs themselves want Ext.A1 to be read as part of the plaint, it is necessary to consider the averments in the plaint as well as the various clauses in the trust deed.
26. The very first sentence in paragraph 1 of the plaint is that the first defendant trust is a private trust. It is also claimed therein that the same is registered in accordance with Indian Trust Act, 1882. It is beyond controversy that Indian Trust Act, 1882 applies to private trust and private charities. According to us, not much significance need be FAO. 235/09 etc.
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given to the claim of the plaintiff that Ext.A1 deed was registered in accordance with the Indian Trust Act. The expression 'registered' is defined as meaning registered in accordance with the law relating to registration for the time being. Nowhere is it stated in Ext.A1 that the registration of the trust deed in accordance with the provisions of the Indian Trust Act. The statutory definition of the expression being what it is, it may not be necessary also to state in Ext.A1 that the registration is in accordance with the provisions of the Indian Trust Act. Therefore, in order to determine whether the subject trust is a private or a public trust, it will be necessary to make an analysis of the averments in the plaint as well as the various clauses in Ext.A1 trust deed.
27. As already indicated the very first claim in paragraph 1 of the plaint is that the first defendant trust is a private trust. But what is stated in the last sentence in that FAO. 235/09 etc.
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paragraph is that the plaintiffs are filing the suit in a representative capacity representing all who are interested in the subject matter of the suit and the defendants are sued in a representative capacity representing all interested in the subject matter of the suit. This sentence in our opinion will show that even according to the plaintiffs the persons interested in the subject matter, i.e., the trust in question are legion. Paragraph 2 of the plaint provides that the object of the trust was to establish and run hospitals and other institutions rendering medical aid, grant donations and other kinds of financial assistance to orphanages, poor homes and so on. Significantly, while referring to the object of establishing and running of hospitals, it is not stated that it is free medical aid that is going to be rendered or that it is only the poorest section of the people who are expected to avail services from the hospital. In the same way, while referring to the object of granting donations and financial FAO. 235/09 etc.
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assistance it would appear as if that the beneficiaries orphanages and poor homes need not be those established by a particular religious sect or community. When we scan the remaining paragraphs in the plaint we do not find any averment containing any admission from the plaintiff to the effect that the trust in question is a public trust. We will now look into Ext.A1 trust deed. From the opening portion of Ext.A1 trust deed what we find is that nine individuals drawn from different walks of like professing different religious faiths are settling a capital amount of Rs.75000/- raised from amongst themselves and from others as a charitable trust. Clause (1) of Ext.A1 provides for the objects of trust. Two aspects are relevant in the context of clause (1). The first aspect is that obtainment of contributions from the public for augmenting the fund of the charity is one of the objects. (2) The trust fund as well as the income from such fund is to be utilised for establishing FAO. 235/09 etc.
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and running hospitals and other institutions running medical aid and for granting donations and other kinds of financial assistance to orphanages, poor homes and other institutions engaged in relief of the poor and disabled persons. As already noticed by us, at the place where reference is made to hospitals and medical aid, it is not stated that the medical aid to be rendered by the hospitals will be free. That MGDM Hospital is collecting fees from a section of the patients availing services there from was not disputed before us by anybody. It is very clear from clause clause 24 of Ext.A1 that the settlers wanted the trust to be perpetual. It is clear from the other clauses of Ext.A1 that the body of trustees of the trust will be perpetual and that the trust properties will remain vested in the trustees, who are in office at the relevant time.
28. The learned Subordinate Judge highlighted Clause 19 of Ext.A1 and relied on that clause to a great extent for FAO. 235/09 etc.
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concluding that the first defendant trust is a private trust. According to us, clause 19 cannot be read in isolation. The same has to be read in conjunction with sub clause (c) of clause 1 of Ext.A1, which provides for the objects of the trust. Under sub clause (c), the object of the trust inter alia is to invest the charities' funds in Government securities, shares and debentures in banks and in such other manner, as the trustees may decide from time to time, in the name or names of one or more office bearers of the charities, as decided from time to time by the trustees. Section 20 of Indian Trusts Act, 1882 provides for the various avenues in which trust money, which cannot be applied immediately for the purpose of the trust is to be invested. It is provided that the investment of such money can only be in the avenues, public securities mentioned under clauses (a) to
(f) of Section 20. Clauses (a), (b), (bb), (c) and (d) deal with investments in promissory notes, debentures, stock or FAO. 235/09 etc.
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other securities and annuities floated by Government guaranteed companies, by local bodies and other institutions, on authorization by the Government. Clause 'e' provides that the investment can be on a first mortgage of immovable property. Clause (ee) provides that investment can be in the Unit Trust of India. Clause (f) provides that the investment can be on any other security, expressly authorised by the instrument of trust or by the Central Government by notification in the official gazette or by any rule which the High Court may, from time to time prescribe in that behalf. It is clear to us that Section 20 of the Indian Trusts Act was enacted on the paramount consideration that the trust money not immediately required should be invested in safe investments. The expression 'any other security authorised by the instrument of trust or by the Central Government by notification in the official gazette or by any rule which the High Court may, from time to time FAO. 235/09 etc.
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prescribe in this behalf' coming under clause 'f' of Section 20 can refer, in our opinion, only to safe investments authorized by the Central Government or by the High Court or investments similar to those provided under Clause (a) to Clause (ee) of Section 20. But, a reading of clause 19 of Ext.A1 will show that the trust money can be invested not only in any of the investments mentioned in Section 20 of the Indian Trusts Act, 1882, but also in debentures and shares floated by any limited company, discretionary power being given to the trustees to vary or realise any investment. We are of the considered view that it will not be safe to jump into a conclusion on the basis of clause 19 of Ext.A1 alone that the first defendant is a private trust and not a public trust. The question whether the trust in question is a public one or private one will have to be decided in the light of the guidelines and parameters indicated by the Supreme Court in the various decisions FAO. 235/09 etc.
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referred to herein-before. The ratio of all the decisions laying down the distinction between private trust and public trust is that in private trust, the beneficiaries are specified and ascertained individuals or ascertained or ascertainable group of individuals. But, in a public trust, the beneficiaries are the public generally. The judgment of the Division Bench of this Court in Thomas v. State of Kerala (2008(1) KLT 363), which was rendered, following the judgment of the Supreme Court in Deoki Nandan v. Murlidhar and others (AIR 1957 SC 133) is to the effect that even when the beneficiaries of a given trust are the believers of a particular religious faith, whose identities cannot be ascertained, then also, the trust will be a public one and not a private one. According to this decision, the numerical strength of the beneficiaries, has some relevance in determining the nature of the trust whether public or private. We are mentioning this only to say that if it is FAO. 235/09 etc.
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possible to find that the beneficiaries of the first defendant trust are Christians, who owe allegiance to the church, of which the first defendant is the supreme head, then also it may be possible to say that the trust is a public one. One distinction between public trust and private trust noticed in many a decisions is that in private trust, the purpose can be limited and can be for a limited period, whereas in public trust, there is no limitation of period and public trust will be perpetual in nature. The finding of the learned Subordinate Judge under the impugned order is that the beneficiaries of the trust are not public generally and that they are only a group owing allegiance to the first plaintiff. According to us, the reasoning adopted by the learned Subordinate Judge for arriving at such a conclusion is not satisfactory. It is true that as per Ext.A4, the hospital and the allied institutions have been vested with the church, of which the first plaintiff is the supreme head. It may also be true that to a great FAO. 235/09 etc.
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extent, the settlers to Ext.A1 recognised the hospital and the allied institutions as the property vested in the church. But, it is difficult to accept the argument of Mr.Sreekumar that Ext.A4 deed amount to amending Ext.A1. Ext.A1 significantly is produced along with the plaint, as the deed governing the first defendant trust. More significantly, the first relief claimed in the suit is that a scheme be settled for the proper administration of the first defendant trust. In our opinion, the evidence presently on record in the case will not be sufficient to conclude safely that the first defendant trust is a private trust and that the beneficiaries of the trust do not include the poorer sections of the people having various religions, faiths and belonging to various communities. We also take into account the circumstance that the principal institution of the trust, viz., M.G.D.M. Hospital as well as the allied institutions presently existing on the trust properties are large scale institutions allowing FAO. 235/09 etc.
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access to the public generally, irrespective of caste, creed and community.
29. When the averments in the plaint are analised carefully, it will be seen that the grievance which is ventilated by the plaintiffs and sought to be redressed by the court is not the private grievance of the plaintiff, but, a public grievance in the sense that the same is shared by the settlers of the trust and by all the beneficiaries of the trust.
30. Sri.S.Sreekumar, learned counsel for the respondent did make a last minute endeavour to sustain the impugned orders by arguing that a suit instituted with leave under Section 92(1) Civil Procedure Code and a suit instituted under Order I Rule 8 Civil Procedure Code achieves the same purpose and are homologous. The judgment of the Supreme Court in R.Venugopala Naidu and others v. Venkatarayulu Naidu Charities and others (AIR 1990 SC 444) gives some support to the FAO. 235/09 etc.
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argument that the suits under Section 92 and under Order I Rule 8 Civil Procedure Code are homologous. To a limited extent, the argument get support from the judgment of the Madras High Court in N.G.N.Rengaswamy Chetty v. P.K.Natesa Chetty and others (AIR 1935 Madras 542) also.
31. We are not inclined to consider the above argument of Mr.Sreekumar because we find that such an argument was never raised before the court below nor considered by the court below. The plea all along was that Section 92 does not apply since the Trust is a private only.
32. The upshot of the above discussions will be that the finding of the court below that the first defendant trust is a private trust and that the suit is maintainable even without leave under Section 92(1) of the Code of Civil Procedure will stand set aside. That issue, according to us should be reconsidered by the court below, as a preliminary FAO. 235/09 etc.
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issue in the suit.
33. We are informed that the appellant/writ petitioner is yet to file his final written statement in the suit. According to Sri.R.D.Shenoy, the appellant/writ petitioner was unable to file final written statement since many documents, which were necessary for preparing the written statement were seized by the Advocate Commissioner and the court below dismissed I.A.No.2431/09, which was an application for release of the documents. But, we find from the order in the said application that to a certain extent, the above grievance of the appellant/writ petitioner was considered and redressed by the learned Subordinate Judge. As for the order impugned in W.P.(C) No.2634/10, there is no warrant for interference since the grievance, as already stated by us is, technical.
34. The result of these cases accordingly, will be as follows:-
FAO. 235/09 etc.
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W.P.(C) No.2634/10 is dismissed. W.P.(C) No.2618/10 is disposed of with a direction that the writ petitioner and his Advocate before the court below will be permitted to go through the documents seized by the Advocate Commissioner from the premises of the trust, in the presence of Court Sheristadar. The perusal of the documents as permitted above will be facilitated by the court below at the earliest and the writ petitioner will file further written statement, if any, within three weeks of such perusal of documents. F.A.O.No.235/2009 will stand allowed to the extent of setting aside the finding of the court below that the first defendant trust is a private trust and that the suit is maintainable even without leave under Section 92 of the Civil Procedure Code. Whether the first defendant trust is a public trust or a private trust will be decided afresh by the court below, after holding enquiries on a preliminary issue to be raised by the court in the suit FAO. 235/09 etc.
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regarding the maintainability of the suit. The order of injunction passed by the court below in I.A.No.2141/09 is not interfered with, since in our opinion, in view of the undertaking given by the appellant that he does not intend to alienate or encumber the trust properties, the appellant cannot have any genuine grievance regarding the above order.
35. Before we part with the cases, we will refer to the submission of Sri.R.D.Shenoy that an application for appointment of a Receiver for the trust hospital and allied institutions is pending before the court below. According to the court below, the allegations of mismanagement and misappropriation of funds stand prima facie established against the appellant/writ petitioner. Without endorsing the above observation of the learned Subordinate Judge, we will only notice that the allegations levelled against the appellant/writ petitioner by the plaintiff are very serious. In FAO. 235/09 etc.
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view of the seriousness of those allegations, we direct the court below to take up the petition for appointment of Receiver also and pass orders on the same at the earliest. We set a time frame of three months to the court below for entering fresh finding regarding the maintainability of the suit and also for passing appropriate orders on the Receiver petition. It is needless to mention that if the finding of the court below regarding the maintainability of the suit is not in favour of the plaintiff, the decision on the petition for appointment of Receiver can be in the negative. The parties are directed to suffer their respective costs in all the cases.
PIUS C.KURIAKOSE, JUDGE C.K. ABDUL REHIM, JUDGE kns/ksv/tgs/-