Karnataka High Court
Mr. Rajanna vs Sri. B M Vijaykumar on 6 January, 2025
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 5895 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 5895 OF 2024 (GM-CPC)
BETWEEN:
1. MR. RAJANNA
S/O NARAYANAPPA,
AGED ABOUT 52 YEARS,
NO.4, 1ST MAIN ROAD, 1ST CROSS,
NEAR GODWIN SCHOOL, AMCO LAYOUT,
KODIGEHALLI, BENGALURU NORTH 560 092.
2. MR. B S UMASHANKAR ARADHYA
S/O SHIVARUDRAIAH
AGED ABOUT 44 YEARS,
NO.1200, KEMPEGOWDA NAGAR,
NEAR TENNIS COURT, VIDHYARANYAPURA,
CHIKKBETTAHALLI, BENGALURU NORTH 560 097.
3. MR. SUDANANDA B H
S/O LATE B C HANUMANTHARAYAPPA,
AGED ABOUT 47 YEARS,
NO.191, 4th CROSS, 2nd MAIN,
TALACAVUERY LAYOUT, AMRUTHHALLI,
BENGALURU NORTH, BENGALURU 560 092.
...PETITIONERS
(BY SRI.PRASHANTH KUMAR D., ADVOCATE)
AND:
1. SRI. B M VIJAYKUMAR
S/O LATE B K MUNIYAPPA,
AGED ABOUT 74 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7TH CROSS ROAD,
JAYANAGAR 1st BLOCK, BENGALURU 560 011.
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WP No. 5895 of 2024
2. SRI. B M PRITHVIRAJ
S/O LATE B K MUNIYAPPA ,
AGED ABOUT 72 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
3. SRI. B M MURALI
S/O LATE B K MUNIYAPPA,
AGED ABOUT 60 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
4. SMT. B M CHANDRAPRABHA
D/O LATE B K MUNIYAPPA
AGED ABOUT 67 YEARS,
RESIDING AT NO. 49
3rd CROSSROAD, 10th MAIN ROAD,
INDIRANGARA 2nd STAGE,
BENGALURU 560 038.
5. SMT. B P AMBIKA
W/O SRI. DHARMAPRAKASH,
D/O SRI. B M PRITHVIRAJ
AGED ABOUT 41 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
6. SMT. B P CHAITRA
W/O SRI. VISHRUTH,
D/O SRI. B M PRITHVIRAJ
AGED ABOUT 35 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
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WP No. 5895 of 2024
7. SMT. AKSHAY,
S/O SRI B.M. MURALI,
AGED ABOUT 20 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7TH CROSS ROAD,
JAYANAGAR 1ST BLOCK,
BENGALURU - 560011.
8. KUM. AANYA
S/O SRI. B MURALI
AGED ABOUT 18 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
9. SMT. BHARGAVI N
W/O SRI. SHIVASHANKAR VINAY,
D/O CHANDRAPRABHA B M,
AGED ABOUT 39 YEARS,
RESIDING AT NO. 49, 3rd CROSS ROAD,
10th MAIN ROAD, INDIRANGARA 2nd STAGE,
BENGALURU 560 038.
10 . SRI. YOGISH H N
S/O SMT. CHANDRAPRABHA B M
AGED ABOUT 30 YEARS,
RESIDING NO. 49, 3rd CROSS ROAD,
10th MAIN ROAD, INDIRANAGAR 2nd STAGE,
BENGALURU 560 038.
11 . BANGALORE KEMPAIAH TECHNICAL
AND EDUCATIONAL TRUST (R),
REGISTERED OFFICE AT NO. 106/7,
BELLARY ROAD, AMRUTHAHALLI VILLAGE,
NATIONAL HIGHWAY -7, BENGALURU NORTH TALUK
BENGALURU 560 092.
12 . SRI. T P RAVISHANKAR
S/O LATE SRI. T PUTTASWAMY,
AGED ABOUT 64 YEARS,
NO. 414-106/7, BELLARY ROAD, NEXT TO IOC
PETROL BUNK, BENGALURU 560 092.
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WP No. 5895 of 2024
13 . SMT. P LAKSHMI
W/O SRI. NARENDRAKUMAR
D/O SRI. B M PRITHVIRAJ,
AGED ABOUT 24 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7TH CROSS ROAD,
JAYANAGAR 1st BLOCK, BENGALURU 560 011.
...RESPONDENTS
(BY SRI.AJIT KALYAN., ADVOCATE FOR SRI. H.S.DWARAKANATH, ADVOCATE FOR R1,2 AND 4, SRI. UDAYA HOLLA, SENIOR COUNSEL FOR SRI. VIVEK HOLLA, ADVOCATE FOR R5 TO R10 AND R13, SRI. MAYANK HEBBAL, ADVOCATE FOR SRI. SANJANA RAJ FOR R3, SRI. A.MADHUSUDHANA RAO,ADV., FOR R11 AND R12) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS IN O.S.NO. 5939/2022 ON THE FILE OF XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH NO.12) AND QUASH THE LOK-ADALAT ORDER DATED 09.12.2023 (ANNXURE-P) PASSED IN O.S.NO. 5939/2022 PASSED BY THE LOK-ADALATH ON THE FILE OF XVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-NO.12) SAME IS VITIATED BY FRAUD.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT CAV ORDER Petitioners are knocking at the doors of Writ Court for assailing the Lok Adalat order dated 9.12.2023 whereby, the partition & declaration suit in O.S.No.5939/2022 having been amicably settled, a compromise decree has been entered in terms thereof.-5- WP No. 5895 of 2024
2. BRIEF FACTS OF THE CASE:
(a) Respondent No.11 is a Trust duly registered on 4.5.2001; it is founded under the provisions of Indian Trusts Act, 1882; there was a partition suit in O.S.No.5939/2022 concerning the Trust properties;
second prayer in the suit was for a declaration that the Trust Deed does not bind the plaintiffs and the third prayer was for a decree of injunction to restrain alienation of the Trust properties, by whatever mode.
(b) Parties to the suit having shown inclination for compromise, learned trial Judge had referred the lis to Lok Adalat for exploring the possibility of amicable settlement. Parties settled the dispute before the Lok Adalat and accordingly, the impugned judgment & decree came to be entered on 9.12.2023 founded on the said compromise. The same are put in challenge by the petitioners before this court.
3. Learned counsel for the petitioners vehemently argued that the impugned order is liable to be voided because lis of the kind cannot be a subject matter of -6- WP No. 5895 of 2024 compromise when the entity concerned is a Public & Charitable Trust; the subject compromise is prejudicial to the interest of beneficiaries of the Trust in question; the compromise is marred by fraud & misrepresentation, inasmuch as earlier related proceedings have been suppressed from the knowledge of Lok Adalat & Court; respondents having received substantial money from National Highway Authority & KIADB, have misappropriated the same, and the Trust in question was not duly represented in the suit in question.
4. Learned counsel representing the respondents resisted the petition contending that: petition in its present form & substance is not maintainable; petitioners lack locus standii, they having no mandate to represent the interest of beneficiaries; the Trust in question having been registered under the provisions of 1882 Act, is a Private Trust as contradistinguished from a Public & Charitable Trust; petition averments as to fraud & misrepresentation lack material particulars; the allegation as to misappropriation of Trust's funds is false; the -7- WP No. 5895 of 2024 impugned judgment & decree perfectly accord with law and interest of the Trust is duly represented & protected.
5. Heard the learned counsel for the parties and perused the Petition Papers. Though very many contentions were urged by both the sides, the following principal questions merit consideration in the case at hand:
(i) Whether petitioners have sufficient locus standii to lay a challenge to the compromise decree...?
(ii) Whether the 11th respondent-Trust is a Public & Charitable Trust founded for the benefit of indeterminate persons...?
(iii) Whether the subject compromise decree having been secured by fraud & misrepresentation, a Writ Court exercising a limited supervisory jurisdiction u/a 227 of the Constitution of India should grant interference ...?
5.1. AS TO LOCUS STANDII OF THE PETITIONERS:
(a) The partition suit included a prayer for declaration that the Trust Deed in question does not bind plaintiff to the suit. The judgment & decree though founded on compromise, are not one in rem inasmuch as they have -8- WP No. 5895 of 2024 not been rendered in the four designated jurisdictions namely matrimonial, insolvency, admiralty & probate. Had they had rem character, obviously petitioners too would have been bound by and therefore, arguably, they would have the locus standii to call them in question. During the online hearing, on being asked twice, learned counsel for the petitioners in appreciable fairness said that his clients are not the beneficiaries of the Trust in question. However, he hastened to add that they were espousing the cause of beneficiaries. It is not the case of petitioners that the so called beneficiaries of the Trust in question are incapable of protecting their interest and therefore, they need espousal. No paragraph in the Trust Deed provides for espousal, even implicitly. Strangely enough, petition does not mention as to who these beneficiaries happen to be.
Ordinarily, espousal needs statutory enablement, as we find in various Labour Welfare legislations. No law or ruling is brought to notice of the court that persons of the kind can knock at the doors of Writ Court posing espousal. -9- WP No. 5895 of 2024
(b) Learned counsel appearing for the respondents are justified in contending that in matters like this, strangers like petitioners should not be permitted to easily gain access to the portals of Writ Court. A contention to the contra may result into flooding of litigations of this kind adding to the docket explosion. Obviously, this is not a social action litigation involving public interest and therefore, the idea of locus standii should pale into insignificance. Unless a litigable interest is demonstrated, court would not readily undertake examination of questions which may otherwise merit due consideration. A court of law would venture to treat questions only when the right person raises them in the right proceedings and in the right earnest, and not otherwise. Much is not necessary to discuss. 'The rest, is silence' to borrow the words of Shakespeare from Hamlet.
5.2. AS TO WHETHER TRUST IN QUESTION BEING A PUBLIC & CHARITABLE TRUST:
(a) The petition is structured on the premise that the Trust in question is a Public & Charitable Trust and therefore, compromise decree of the kind is unsustainable.
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WP No. 5895 of 2024This is hotly contested from the side of respondents stating that the Trust in question never came into existence and never was functional. Petitioners have produced, fairly, a copy of registered Trust Deed bearing registration No.P-143/2001-02 dated 4.5.2001. Admittedly, the Trust Deed in question having been found deficit in stamp duty, was referred to the office of Inspector General for Registration vide order dated 10.7.2003 in proceedings No.DRI-55/01-02. Deficit was made good vide order dated 3.10.2017 issued by Senior Sub-registrar, Yelahanka. Thus, for sixteen long years, the Trust Deed had not seen light of the day and obviously, Trust was not functional. Absolutely, nothing is averred as to the functionality of the Trust even after deficit stamp duty was paid much less any evidentiary material is produced to demonstrate the same. This court cannot assume things in vacuum.
(b) The Trust comprised of subject property and third respondent personally had not put his signature, although the plaintiff Kum.Lakshmi.P, claims to have represented
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WP No. 5895 of 2024his interest by General Power of Attorney. No full particulars of the authorizing instrument are forthcoming either from the petition or from the Trust Deed itself. The said Lakshmi is none other than the plaintiff in O.S.No.5939/2022 which culminated into a compromise decree dated 9.12.2023. Whether the Trust became functional and the property settled therein came to be used for the beneficiaries, cannot be adjudged by this court as already mentioned above. Whether the Trust in question is a Public & Charitable Trust is largely a question of fact which needs to be adjudicated upon by a court of competent jurisdiction wherein, evidence can be led by both the sides to substantiate their contentions. Just by reading a few lines from the script of the Trust Deed, one cannot hastily jump to the conclusion that it is or it is not a Public & Charitable Trust, a host of factors entering the fray of determining the nature of Trust. A Writ Court exercising a limited supervisory jurisdiction constitutionally vested u/a 227, certainly is not the right Forum, for adjudging contentious dispute like this.
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WP No. 5895 of 2024
(c) Mr.Udaya Holla and Mr.Dhyan Chinnappa, learned advocates appearing for the contesting respondents are right in telling that if somebody is aggrieved by the compromise decree, nothing comes in his way in framing a suit as contemplated u/s 92 of the Code of Civil Procedure, 1908, seeking invalidation of impugned judgment & decree founded on compromise. This, the beneficiaries of Trust in question can certainly do, if case of the petitioners that the subject Trust has public character as alleged in the petition, is to be assumed true. It hardly needs to be stated that scope of section 9 of CPC is too wide vide DHULABHAI vs. STATE OF MADHYA PRADESH1, whether suit is u/s 26 or u/s 92, the latter having certain conventional limitations, notwithstanding. A Coordinate Bench of this Court in C.R.SHIVANANDA vs. H.C.GURUSIDDAPPA2, has observed as under:
"30. ...The essential distinction between a public and a private trust is, that in the former the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained, but in the latter the beneficial interest must be vested in an uncertain and fluctuating body or persons-either the public 1 AIR 1969 SC 78 2 ILR 2012 Kar 4624, at para 30
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at large or some considerable portion of it answering a particular description... The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition. If the intention of the donor is merely to benefit specific individuals, the gift is not charitable, even though the motive of the gift may be to relieve their poverty or accomplish some other purpose with reference to those particular individuals which would be charitable if not so confined; on the other hand, if the donor's object is to accomplish the abstract purpose of relieving poverty... It is a question of fact whether a temple is a private or a public one. Whether the trust is public or private would have to be decided in each case with reference to the terms of the document if any; and if there is no document or its language is ambiguous, the decision would depend upon inferences which could be legitimately drawn from the evidence adduced in the case, the material evidence being a actual user and public repute..."
No explanation is offered by the petitioners as to why they cannot invoke section 92, which apparently is an alternate & more efficacious remedy inasmuch as admittedly, they were not parties to the suit in which the subject compromise decree came to be entered.
5.3. AS TO IMPUGNED COMPROMISE DECREE BEING VITIATED BY FRAUD AND THEREFORE, WRIT COURT SHOULD INTERFERE:
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(a) Learned counsel appearing for the petitioners vehemently argued that the subject compromise decree demonstrably having been secured by fraud & misrepresentation, challenge thereto is admissible even in writ jurisdiction. This is stoutly opposed by the advocates appearing for the respondents. To treat this contentious issue, one has to have a clear idea as to what fraud means in the realm of law. Kerr on fraud3 says as under:
"...It is not easy to give a definition of what constitutes fraud in the extensive significance in which that term is understood ... Courts have always avoided hampering themselves by defining or laying down as a general proposition what shall be held to constitute fraud. Fraud is infinite in variety... courts have reserv(ed) to themselves the liberty to deal with it under whatever form it may present itself. Fraud ... may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud. Fraud in all cases implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to..."3
KERR ON FRAUD AND MISTAKE, BY SYDNEY EDWARD WILLIAMS, PART I.--FRAUD, FIFTH EDITION, pg-1.
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WP No. 5895 of 2024'Fraud vitiates everything', said Lord Edward Coke centuries ago in REX vs. DUCHESS OF KINGSTON4. Our Apex Court adopted this as a native norm as reiterated in S.P.CHENGALVARAYA NAIDU vs. JAGANNATH5. However, Coke's statement is of wide sweep and has several implicationary reflections: fraud in public law vis-a-vis fraud in private law; fraud on the parties vis-à-vis fraud on the court; fraud going to the root of matter vis-à-vis fraud operating at the periphery and the like. In STATE OF ANDHRA PRADESH vs. A.SURYACHANDRA RAO6, it is observed: "...fraud" in public law is not the same as "fraud" in private law... The colour of fraud in public law or administration law, as it is developing, is assuming different shades..." Coke's idea of fraud fits broadly in the realm of public law. Apparently, the plea of fraud taken up in this case does not much figure in the precincts of public law.
(b) Section 17 of the Indian Contract Act, 1872 defines 'fraud' to mean an act committed by a party to a contract 4 20 How. St. Tr.544 5 (1994) 1 SCC 1 6 (2005) 6 SCC 149
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WP No. 5895 of 2024with the intent to deceive another. By such deceit, whether deceiver derives any benefit or reward, is not much relevant. A consent obtained by fraud does not render the contract void ab initio; it only gives to the defrauded party a right to avoid the contract; such right not being coupled with duty unlike in the field of public law, may or may not be exercised. Till the right is exercised and thereby avoidance is accomplished, the private arrangement between the parties would continue as being legally enforceable. In other words, it does not cease to be a contract. [Section 2(h) of 1872 Act defines contract as an agreement enforceable by law]. Thus, an agreement brought about by fraud, fabrication & duplicity per se, is not treated as a nullum pactum, its vulnerability being selective qua the party defrauded. It has long been settled that a compromise decree is ordinarily treated as a contract with the seal of court superadded vide NAVRATAN LAL SHARMA vs. RADHA MOHAN SHARMA7. Persons who can lay a challenge to a compromise decree of the kind on the ground of fraud can be either the trustees or the 7 (2024) SCC OnLine SC 3720
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WP No. 5895 of 2024beneficiaries or the persons interested in the Trust, subject to all just exceptions. Petitioners do not answer this proposition. That being the position, 'fraud vitiates everything' cannot be chanted like mantra. A contention to the contrary if countenanced, would have serious implications and repercussions that would outweigh the rewards of setting aside a private instrument or decree of the kind.
(c) The above apart, plea of fraud is often taken up by parties and very rarely substantiated. At times, arguments as to fraud, fabrication & duplicity are advanced with sound & fury, signifying nothing, to put it metaphorically. In this case too, the same has happened. Specific plea with full particulars as to who, when, how, where & on whom these legal sins are perpetrated have to be meticulously stated in the pleadings. A half hearted one would not suffice the requirement of law. In that regard, what applies to the suits would apply to the writ proceedings as well, by virtue of Rule 39 of Writ
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WP No. 5895 of 2024Proceedings Rules, 1977 which have broadly adopted inter alia the provisions of CPC. This Rule has the following text:
"39. Application of the High Court of Karnataka Rules, etc.- The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 and/or Article 227 and writ appeals in respect of matters for which no specific provision is made in these rules."
(d) It is true that at para 9 of the petition, several proceedings have been enlisted; allegedly they had not been brought to the notice of Lok Adalat nor the Court below. But how all that is going to cast shadow on the impugned judgment & decree, is not specifically pleaded nor otherwise demonstrated here. Courts cannot be swayed away by fantastic pleadings/arguments per se in the absence of demonstrable evidence of factors that vitiate the proceedings or their outcome. Added, except enlisting the case numbers, nothing more is stated, either. In any event, private interest of an individual cannot be prejudiced by some decrees/orders to which those individuals are not parties eo nomine.
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WP No. 5895 of 2024In the above circumstances, this petition being devoid of merits, is liable to be dismissed & accordingly, it is.
The observations herein above made being confined to disposal of the petition, shall not influence the appropriate proceedings if brought about for laying a challenge to the impugned judgment & decree.
This Court places on record its deep appreciation for the able assistance rendered by the Research Assistant Mr.Raghunandan K S. Costs made easy.
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(KRISHNA S DIXIT) JUDGE Snb/cbc