Karnataka High Court
Maistry Thimmaiachar Choultry ... vs C Channa Krishna on 13 June, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13th DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.NO.269/2011
BETWEEN:
1. MAISTRY THIMMAIACHAR CHOULTRY
TRUST (R) REGD. OFFICE IRWIN ROAD
LASHKAR MOHALLA,
MYSORE
BY ITS PRESIDENT
2. M.T. RAMACHANDRA
S/O LATE M.C. THIMMALACHAR
AGED ABOUT 62 YEARS
R/AT GAYATHRI TALKIES
MYSORE-570 001.
3. S.B. ARUNACHALA
S/O LATE D.C. BHASKARACHAR
AGED ABOUR 58 YEARS
PROPRIETOR,
R/AT SHARADA JEWELLERS
MYSORE.
4. H. VITTAL
S/O LATE HANUMANTHAIAH
AGED ABOUT 55 YEARS
R/AT UNITED ENGINEERS
CRYSTAL APARTMENTS
V.V. MOHALLA
MYSORE-570 001.
5. P.N. MANJUNATHA
S/O T.A. NANJUNDA SHETTY
AGED ABOUT 49 YEARS
2
R/AT NO. 229 ASHOKA ROAD
MYSORE-570001.
6. MR.RAJARAM
S/O M.T. RAMACHANDRA
R/AT GAYATHRI KRUPA
CH/32 KANTHARAJE URS ROAD
LAKSHMIPURAM,
MYSORE-570 001. ... APPELLANTS
(BY SRI G.BALAKRISHNA SHASTRY, ADV.)
AND:
1. C.CHANNA KRISHNA
S/O LATE PADMASHREE S.N. SWAMY
AGED ABOUT 80 YEARS
R/AT NO.G-2, PRIYADARSHINI APARTMENT
HYDER ALI ROAD,
NAZARBAD MYSORE-570 001.
2. SMT. C.S. SHANTHAMMA
D/O LATE CHELUVACHAR
R/AT NO. 22, DEEPANAGAR
BOADALI, MYSORE-570 001.
3. M.T. NAGARAJ
S/O LATE M.C. THIMMALACHAR
R/AT GAYATHRI TALKIES
MYSORE-570 001.
4. MYSORE CITY CORPORATION
MYSORE
BY ITS COMMISSIONER. ... RESPONDENTS
(BY SRI Y.K. NARAYANA SHARMA, ADV., FOR R-1 & R-2;
SRI H.C. SHIVARAMA, ADV., FOR R-4;
NOTICE TO R-3 SERVED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
PRAYING AGAINST THE JUDGEMENT AND DECREE
DATED 14.12.2010 PASSED IN O.S.NO.04/2009 ON THE
3
FILE OF THE III-ADDL. DISTRICT JUDGE, MYSORE,
DECREEING THE SUIT FOR TO DRAW A SCHEME FOR THE
PROPER MANAGEMENT OF THE SCHEDULE PROPERTY.
THIS APPEAL COMING ON FOR DICTATING
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This is a defendants appeal challenging judgment and decree passed by III Addl. District Judge, Mysore, dated 14.12.2010 in O.S.No.4/2009, whereunder suit filed under Section 92 of CPC to draw a scheme for management of suit schedule property and to remove defendant Nos.2 to 8 from the management of schedule property and to appoint new trustees for effective management of Trust known and called as "Maistry Thimmaiachar Choultry".
2. Facts in brief leading to filing of this appeal are as under:
Site bearing No.706M-23-722/4 was allotted by the then City Improvement Trust Board, Mysore, on 28.06.1932 in favour of Sri Maistry Thimmaiachar for 4 establishing a choultry, which was required to be maintained by Municipality. Said site was allotted free of cost and choultry was constructed to meet the needs of public and said Sri Maistry Thimmaiachar, who was renowned Philanthropist and as leading civil contractor, had constructed choultry in the said free site allotted by CITB, Mysore. Said Sri Maistry Thimmaiachar had three sons namely, Sriyuths Cheluvachar, Yalakkappachar and Sriyuths Chikkacheluvachar.
Cheluvachar and Yalakkappachar were also contractors at Mysore and had earned great name and fame during the time of his Highness Maharaja of Mysore. Said Sri Yalakkappachar was also involved in construction of world famous Mysore palace. Choultry in question was constructed over suit schedule property mainly out of contribution and efforts of said Sri Yalakkappachar. Choultry was supposed to be given to public to conduct functions, ceremonies etc., at a very reasonable costs and returns thereof was to be used for maintenance of the building. Sri Cheluvachar was also involved in 5 development of schedule property and for the purpose of management of schedule property, a Public Charitable Trust was created and said Sri Cheluvachar executed a deed of declaration on 15.12.1969 and said trust was constituted during lifetime of above said Sri Maistry Thimmaiachar and administered by his sons Sriyuths Yalakkappachar and Cheluvachar. Plaintiffs are grandchildren of Sri Yalakkappachar.
Sri Yalakkappachar had three sons by name Sriyuths M.Y.Swamy, Cheluvachar and Y.Somu and two daughters by name Smt.Doddanarasamma and Smt.Chikkanarasamma. First plaintiff is the son of Smt.Doddanarasamma and second plaintiff is the daughter of Sri Cheluvachar. Sri Cheluvachar namely, son of Sri Maistry Thimmaiachar had two sons by name Sriyuths Mariyappa @ Thimmaiachar and Cheluvachar. Second defendant is the son of Sri Thimmaiachar. It was contended in the suit that after the death of Sri Yalakkappachar, Sri Cheluvachar son of Sri Maistry Thimmaiachar started dominating the management of 6 suit schedule property and subsequent to death of Sri Yalakkappachar, Sri Cheluvachar had constructed shops in a portion of schedule property. After the death of Sri Cheluvachar, his son Sri Thimmachar @ Mariyappa who was also called as 'M.C.Thimmachar' is stated to have started dominating the management of the Trust and excluded other legal heirs of Sri Yalakkappachar from the management of the Trust according to plaintiffs. On the demise of Sri M.C.Thimmaiachar, defendant Nos.2 to 8 started to manage the property of Trust. It was alleged by the plaintiffs that defendant Nos.2 to 8 are indulging in converting the entire suit schedule property as private property and they have unauthorisedly inducted respondents - 3 to 7 to the Trust and representative of Mysore City Corporation have not been included in the Board of Trustees though it was one of the condition for grant of site. It was further contended that defendant Nos. 2 to 8 are intending to demolish the existing choultry situated in the suit schedule property and are 7 attempting to construct a shopping complex with intention to cause wrongful gain to themselves and to cause wrongful loss to the Trust. They further alleged that defendant nos. 2 to 8 had partly demolished the shops existing in the suit schedule property and they have not been maintaining accounts relating to income and expenditure of the Trust. As such, they sought for removal of defendant Nos.2 to 8 from management of the Trust and also for drawing up of a scheme for effective management of the Trust.
3. Defendants, on service of suit summons, appeared and filed written statement denying the averments made in the plaint. They contended that defendant Nos.2 to 8 have been discharging their duties as trustees and second defendant was President of the Trust. It was also contended that choultry was constructed in the year 1935 and it had become very old and was in a dilapidated condition and amenities available at the choultry was not up to the expectation of general public 8 and for better utilization of the property, steps have been taken by the defendants. It was contended that income derived from choultry is hardly sufficient to meet even the municipal tax liability and income derived from the shops is not sufficient for the activities of the Trust. Since Trust could not visualize the construction of new choultry building by demolishing the old existing building for want of funds, Board of Directors resolved to let out entire property on long term lease to the prospective tenant who was agreeable to demolish the entire structure and put up a new structure in its place and he had agreed to pay substantial sums of money as rent besides surrendering building to be constructed to the Trust in due course. Hence, it was contended that Trust has handed over vacant possession of the building to the lessee-Sri.Venkatesh. It was also pleaded that said lessee has been negotiating with the tenants who are in occupation of various portion of the building namely shops to obtain vacant possession and on account of tenants adamant attitude, Trust has taken 9 steps to evict the tenants. It was specifically pleaded that Trust property has not been alienated to the detrimental interest of the Trust. Hence, they sought for dismissal of the suit.
4. Trial Court on the basis of pleadings of parties, formulated the following issues for its consideration:
(1) "Whether the plaintiffs proves that the Court has to draw a scheme for the proper management of the suit schedule property?
(2) Whether the plaintiffs proves that defendants 2 to 8 have to be removed from the management of the suit schedule property?
(3) Whether the plaintiffs proves that new Trustees have to be appointed for effective management of the suit schedule property and to carry out its objects?
(4) Whether the defendants 1 and 2 proves that the defendants 3 to 8 are managing the affairs of the Trust lawfully and properly as per the terms of the Trust deed dated 15.12.1969?
(5) Whether the plaintiffs proves that the defendants 2 to 8 have to be directed to render accounts regarding the 10 management of the suit schedule property?
(6) To what order or decree?"
5. Plaintiffs have got themselves examined as P.Ws.1 and 2 and in all, produced 45 documents and have got them marked as Exs.P-1 to P-45. Second defendant got himself examined as D.W.1 and on behalf of defendants, 40 documents were produced and was got marked as Exs.D-1 to D-40. On appreciation of both oral and documentary and after considering the rival contentions raised by respective learned Advocates appearing for parties, trial Court decreed the suit by holding that defendant Nos.2 to 8 are to be removed from the management of first defendant - Trust and new trustees were ordered to be appointed to manage first defendant
- Trust and suit schedule property belonging to Trust. It was also decreed that one among descendants from the branch of Cheluvachar and one person among descendants from the branch of Yalakkappachar and one person-nominee appointed by the Court should be 11 the trustees of first defendant - Trust and nominee of the Court shall be the Managing Trustee. It was also decreed that entire suit schedule property shall vest in the trustees appointed by the Court and defendant Nos. 2 to 8 were directed to deliver possession of schedule property to the trustees so appointed by the Court. It was further held that lease agreement entered into between defendant nos-2 to 8 with one Sri Venkatesh relating to suit schedule property is void and illegal and it does not affect the Trust property. Amount paid by said Sri Venkatesh was ordered to be refunded to him. Further, defendant Nos.2 to 8 were directed to render the accounts in respect of the management of the Trust for the last 10 years. Both the parties were directed to put in their suggestions within a month for drawing up of a scheme for smooth functioning of the Trust and parties were directed to indicate the names of persons as referred to herein above. New trustees have been directed to manage the Trust under the supervision of the Court and those Trustees have been directed to 12 submit yearly statement of accounts of the Trust to the Court within a month after closure of each financial year. It is this judgment and decree which is questioned in this present appeal by defendant Nos. 2 to 8.
6. I have heard the arguments of Sriyuths Balakrishna Shastry and Y.K.Narayana Sharma appearing for appellants (defendant nos. 1, 2, 4 to 7) and respondent nos. 1 & 2 (plaintiffs) respectively, Sri. H.C. Shivaramu for Respondent no.4 (9th defendant). Respondent no.3 (8th defendant) is served and unrepresented. Perused the judgment and decree in question as also the records secured from trial Court.
7. Sri Balakrishna Shastry, learned Advocate appearing for appellants - defendants contended interalia that finding recorded by the trial Court that there has been mismanagement of the Trust is contrary to records and account books produced would clearly indicate that there was no mismanagement or unlawful gain made by the trustees more particularly, when the 13 choultry had been constructed for the use of general public and the shops having been constructed subsequently which came to be improved by renovating the same and it cannot be construed as having been mismanaged. It is further contended that a sum of Rs.365/- was the yearly tax in the year 1969 and in the year 2007-08 it came to be fixed at Rs.2,25,000/- per year and on account of choultry belonging to the Trust being in a dilapidated condition and not meeting to the expectation of general public and no one was prepared to take the choultry on lease and as such trustees had resolved to demolish the existing old and dilapidated structure of the choultry and construct a new shopping complex which would have enhanced the revenue of the Trust and safeguard the interest of the Trust and as such, it is contended that this act of the Trustees cannot be construed as either mismanagement or improper management or same being detrimental to the interest of the Trust. Hence, he seeks for setting aside the judgment and decree in question.
14
8. However, learned Advocate appearing for appellants-defendants would hasten to add that if decree in question is modified by absolving defendant Nos. 2 to 8 from rendering accounts since all the accounts relating to the Trust had been placed before trial Court and also in view of the undertaking affidavit filed by second defendant agreeing to discharge the liability of the Trust if any found to be due from the Trust to third parties, he would be satisfied with such modification of the decree and consents for the decree passed by civil Court insofar as the scheme ordered to be drawn to manage the Trust and he has no objection for same being confirmed.
9. Sri Y.K.Narayana Sharma, learned Advocate appearing for respondents-plaintiffs would support the judgment and decree in question and contends that on account of admission made by defendants themselves, trial Court has come to a conclusion that they had not placed correct and true picture of the accounts of the 15 Trust and it is for this precise reason trial Court has come to the conclusion that there has been mismanagement in the administration of the Trust and as such, he seeks for confirming the judgment and decree passed by trial Court. He would also submit that if the defendants were to undertake to indemnify the Trust of any liability that may accrue on account of their negligent acts or personal acts, the judgment and decree may be suitably modified so that Trust should not be made to indemnify such wrongful claims and to that extent interest of the Trust should be protected. He would also draw the attention of the Court to the finding recorded by trial Court with reference to the lease entered into by the trustees namely defendant nos.2 to 8 with one Sri Venkatesh whereunder Trust property is sought to be handed over to a third party for perpetuity namely, for 75 years as has been done by these defendants in the instant case without taking permission of the jurisdictional Court particularly when the Trust being a public charitable Trust and as such, 16 contends that this amounts to clear mismanagement of the Trust and it amounts to causing wrongful loss to the Trust and trustees with an intention of having wrongful gain to themselves and the act of entering into lease has been rightly held by the trial Court as mismanagement and submits that judgment and decree passed by trial Court liable to be confirmed. He would also hasten to add that in view of the judgment and decree passed by trial Court appointing trustees namely, one descendant from each of the family, plaintiffs are willing to administer the Trust in the said manner and they are not willing to individually and independently manage the Trust. He would also submit that in view of the affidavit of undertaking given by defendant No.2 as a President of the Trust, judgment and decree may be suitably modified by affirming the finding recorded by trial Court for drawing up of the scheme of management of the Trust and plaintiffs would have no objection for the decree being modified to the extent of absolving defendant nos. 2 to 8 from furnishing accounts. 17
10. Having heard the learned Advocates appearing for parties and on perusal of the judgment and decree in question, it would indicate that trial Court while arriving at a conclusion that there has been mismanagement of the Trust by defendant nos. 2 to 8 got swayed by two factors , namely, (1) Lease was entered into by defendants-2 to 8 agreeing to lease the suit schedule property for long tenure namely, 75 years in favour of one Sri Venkatesh without obtaining necessary permission from the jurisdictional Court;
(2) Day-to-day accounts of the Trust are not properly maintained by defendants and the amounts received by them have not been reflected in the account books.
11. Insofar as the finding recorded by the trial Court to the effect that there is mismanagement of the Trust 18 by defendant nos. 2 to 8 in not seeking permission of the jurisdictional Court before entering into an agreement of lease with Sri Venkatesh requires to be affirmed inasmuch as, trial Court has rightly held that Trust in question being a Public Charitable Trust and the trustees being custodians of the public Trust were required to obtain necessary permission of the jurisdictional Court before entering into lease with the said Sri Venkatesh and parting away with the valuable property of the Trust amounts to mismanagement. D.W.1 who is the President of first defendant - Trust, in the course of his cross-examination has admitted that first defendant - Trust has entered into an agreement with Sri Venkatesh to lease out the entire suit schedule property on long term lease for 75 years for the purpose of constructing shopping complex. It is also on record that said Sri Venkatesh intends to construct a commercial complex and has agreed to pay Rs.60,000/- per month as rent to the Trust and defendants have received a sum of Rs.10 lakh interest free deposit from 19 said Sri Venkatesh. It is also evident from the evidence of D.W.1 that existing choultry building situated in the suit schedule property is proposed to be demolished and it is an undisputed fact that the then CITB Mysore had allotted said site to Sri Maistry Thimmaiachar in the year 1932 free of cost and as per the terms set out by the then CITB, a choultry was required to be constructed for the use of general public. Ex.P-1 is the registered declaration made by Sri Cheluvavachar s/o Sri Maistry Thimmaichar in respect of suit schedule property which would discloses that main purpose of establishing Trust was to maintain choultry constructed in the suit schedule property and to give said choultry to the general public for religious functions. Hon'ble Apex Court in the case of RAMCHAND (DEAD) BY HIS LEGAL REPRESENTATIVES vs THAKUR JANKI BALLABHJI MAHARAJ & ANOTHER reported in AIR 1970 SC 532 has held that Civil Court can frame a scheme for management of the private Trust also. In this background, trial Court has examined as to 20 whether dominant purpose of the Trust created by Sri Maistry Thimmaiachar has been given a go by or as to whether there is breach of trust by defendants 2 to 8 and it has been held by the trial Court to the following effect:
"Now the law is well settled that the Court cannot approve the administration of the Trust, which would defeat the very purpose of the Trust. Section 92 of CPC makes it clear that in case of any alleged breach of any express or constructive Trust created for public purpose of a charitable or religious nature, the Court may entertain a suit for removing any Trustee or appointing a new Trustee etc if there is breach of Trust. Section 92(3)(e) makes it clear that Court may grant permission for altering original purpose of a express or constructive Trust created for public purpose where the original purpose in whole or in part have since they were laid down been adequately provided for by other means or ceased to exist or ceased in any other way to provide a suitable and effective method of using the property available by virtue of the Trust "regarding being had to the spirit of the Trust."21
12. Section 92(3) (e) of CPC empowers the Civil Court to grant permission for altering the original purpose in whole or in part. Said Section reads thus:
"92. Public charities.- (1) In the case of any alleged breach of any express or constructive 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 any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court] may institute a suit, whether contentious or not, in the principle Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-
(a) XXX
(b) XXX
(c) XXX
(d) XXX
(e) Declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) XXX
(g) XXX
(h) XXX 22 (2) XXX (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:
(a) Where the original purposes of the trust, in whole or in part,--
(i) have been, as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or
(b) Where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
(c) Where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or 23
(d) Where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or
(e) Where the original purposes, in whole or in part, have, since they were laid down,--
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust."
13. A perusal of the above provision make explicitly clear that in case of any alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature, Court would be entitled to entertain a suit for reviewing any Trust or appointing any new trustee if there is any breach thereof. Section 92(3)(e) of CPC enables the jurisdictional Court to grant 24 permission for altering original purpose of express or constructive trust created for any public purpose where original purposes in whole or in part have since ceased to exist or ceased in any other way to provide a suitable and effective method of using the property available to the Trust and regard having been had to the spirit of the Trust.
14. It is in this background evidence tendered by the parties came to be analysed, examined, considered, and adjudicated by the trial Court to arrive at the conclusion that defendants Nos.2 to 8 instead of approaching the jurisdictional Court for obtaining permission of the Court to put up construction of commercial complex by demolishing the existing choultry was not adhered to by them and as such, trial Court has rightly come to the conclusion that there was breach of trust insofar as said act of not obtaining the permission to lease the Trust property to Sri Venkatesh on long term lease basis is concerned. Said finding recorded by the trial Court 25 does not suffer from any illegality or irregularity calling for interference at the hands of this Court and same stands affirmed.
15. Insofar as the direction issued by the trial Court to defendant Nos.2 to 8 to render the accounts in respect of the Management of the Trust for the past 10 years on the premise that there has been no proper accounting done by them is concerned, same requires to be examined with utmost circumspection for reasons more than one.
16. It is an undisputed fact that defendant Nos. 2 to 8 have all along been managing the Trust and the only immovable property of the Trust is suit schedule property. It is also available on record that subsequently in the year 1969 shops have been constructed for generation of revenue which undisputedly was done during the time of defendant Nos. 2 to 8. Plaintiffs have 26 also admitted this fact. P.W.1 in his cross examination dated 07.01.2009 admits to the following effect:
"1969 jAzÀ E°èAiÀĪÀgÉUÀÆ ¸ÀºÁ ¤±Á£É ¦.1 læ¸ïÖ rÃqï£À ¥ÀæPÁgÀªÉà 1£Éà JzÀÄgÀÄzÁgÀgÀ ZÀlĪÀnPÉUÀ¼ÀÄ £ÀqÉzÀÄPÉÆAqÀÄ §A¢zÉ JAzÀgÉ ¸Àj. ªÉÆzÀ°UÉ bÀvÀæzÀ ¨sÁUÀªÀ£ÀÄß PÀlÖ¯ÁVvÀÄÛ JAzÀgÉ ¸Àj. F bÀvÀæzÀ ¨sÁUÀªÀ£ÀÄß PÀlÖ®Ä JµÀÄÖ ºÀt RZÁð¬ÄvÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. F bÀvÀæ PÀlÖ®Ä RZÁðzÀ ºÀt ¥ÀÆwð AiÀiÁ®PÀ¥ÁàZÁgï CªÀgÉà PÉÆnÖgÀÄvÁÛgÉ. F §UÉÎ £À£Àß°è AiÀiÁªÀÅzÉà zÁR¯É EgÀ°®è. F bÀvÀæzÀ ¨sÁUÀUÀ¼À£ÀÄß PÀlÖ®Ä n.ZÀ®ÄªÁZÁgï CªÀgÉà ºÉaÑ£À Rað£À ºÀtªÀ£ÀÄß PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è. F bÀvÀæzÀ CPÀÌ- ¥ÀPÀÌzÀ°è CAUÀr ªÀĽUÉUÀ¼À£ÀÄß 1960£Éà E¸À«AiÀÄ°è PÀnÖ¸À¯Á¬ÄvÀÄ JAzÀgÉ ¸Àj. DUÀ F bÀvÀæzÀ DUÀÄ- ºÉÆÃUÀÄUÀ¼À£ÀÄß n.ZÀ®ÄªÁZÁgï CªÀgÉà £ÉÆÃrPÉƼÀÄîwÛzÀÝgÀÄ ªÀÄvÀÄÛ CAUÀr ªÀĽUÉUÀ¼À£ÀÄß PÀlÖ®Ä vÀUÀÄ°zÀ RZÀð£ÀÄß CªÀgÉà ¨sÀj¹zÀÝgÀÄ JAzÀgÉ ¸Àj."
17. In view of this categorical admission of P.W.1 it cannot be held that there has been mismanagement insofar as the day-to-day administration of the Trust. As already noticed herein above, what swayed in the mind of the trial Court to arrive at conclusion that there has 27 been mismanagement namely, accounts have not been properly maintained and receipts have not been reflected in the day-to-day accounts is also contrary to available evidence on record. In other words, trial Court has erroneously appreciated the available evidence and has not considered the available evidence in proper perspective. This view is fortified from the cross- examination of D.W.1 dated 08.09.2010. In the cross examination of this witness, Exs.P-21, P-22, P-23 and P-24 have been confronted to the witness by plaintiffs counsel which are the Receipt books and Day books. To the suggestion made that amount found in Receipt books does not find an entry in Day book has been denied by the said witness. If as alleged by the plaintiffs said amounts are not entered into in the Day book, it was incumbent upon them to demonstrate before trial Court and establish as to which are the relevant entries of receipt book which do not find place in the Day book. This exercise has not been done. It has been specifically 28 denied by D.W.1 in the cross examination to the following effect:
"¤.¦.32 jAzÀ ¦.34 £ÀªÀÄä læ¸ïÖ£À EvÀgÉ qÉà §ÄPïUÀ¼ÁVªÉ. ¤.¦.25 jAzÀ ¦.31 gÀ²Ã¢ ¥ÀĸÀÛPÀUÀ¼À°è ¥ÀqÉzÀÄPÉÆAqÀ ºÀtªÀ£ÀÄß qÉçÄPïUÀ¼À°è vÉUÉzÀÄPÉÆAr®è ªÀÄvÀÄÛ vÀÄA¨Á ªÀåvÁå¸À EzÉ JA§ÄzÀÄ ¸ÀļÀÄî."
Repeated suggestions have been made to the said witness that entries found in the Receipt books do not find a place in the account ledger. However, as to which are those specific receipts which do not find a place in the receipt books or account books is not forthcoming. As such, it cannot be construed or held that on account of same having not been explained by D.W.1, it cannot be inferred that there is mismanagement in the day-to-day administration of the Trust. As such, conclusion arrived at by the trial Court in this regard cannot be sustained.
18. During the course of hearing of this appeal, learned Advocate appearing for appellants has filed an 29 affidavit of undertaking of second appellant-defendant whereunder it is agreed by him that Trust is not liable to pay any dues or money in favour of any third parties and Trust is debt free and he has also undertaken that if any liabilities are found to be due from the Trust other than routine expenses of the Trust, he would undertake to discharge the liability personally. He has also stated that no amounts are due to any statutory authorities such as Water Supply Board, Mysore Municipal Corporation or any other statutory authorities and tax in respect of Trust has been paid up to the year 2014-
15. In view of this categorical undertaking having been furnished by defendant no.2 and allegation of non- furnishing of accounts having been negatived by this Court as discussed hereinabove and to that extent decree being set aside having also been accepted by plaintiffs, this Court is of the considered view that it would suffice in the interest of both the warring groups to hold that decree passed by the trial Court insofar as decreeing the suit for drawing up a scheme of 30 management of Trust is to be sustained and insofar as direction issued to defendant Nos. 2 to 8 to render the accounts for the past 10 years has to be set aside and same cannot be sustained.
19. Hence, for the reasons aforestated, I proceed to pass the following:
JUDGMENT (1) Appeal is hereby allowed in part.
(2) Judgment and decree passed by III Addl. District Judge, Mysore in O.S.No.4/2009 dated 14.12.2010 is modified by setting aside the decree directing defendants to render the accounts in respect of management of the Trust for the past 10 years in view of undertaking given by second defendant and subject to same in all other aspects it stands affirmed.31
(3) It is needless to state that amount received by the Trust from one Sri Venakatesh which is stated to be in fixed deposit shall be refunded by the Trust to said Sri Venatesh as decreed by the trial Court and both parties shall co-operate with the trial Court in expeditiously drawing up of a scheme.
(4) Parties to bear their respective costs.
, Sd/-
JUDGE *sp