Karnataka High Court
Sri C R Hiremath vs Sri Akkamahadevi Samaja on 28 March, 2014
Author: B.S.Indrakala
Bench: B.S. Indrakala
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
R
Dated this the 28th day of March 2014
Before
The Hon'ble Mrs. Justice B.S. INDRAKALA
Regular First Appeal No.1713/2005 c/w
RFA Crob.Nos.39/2005 & 2/2006
In R.F.A.No.1713/2005:
BETWEEN:
1. Sri C.R.Hiremath,
S/o Late Sri Rudraiah Hiremath,
Aged about 71 years, R/o 25th Ward,
Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
By his power of attorney holder
Miss Sadhana Hiremath,
Since deceased by his LRs.
a. Smt.Neelamma Hiremath,
Aged about 63 years,
W/o Late C.R.Hiremath.
b. Sri Mahesh Hiremath,
Aged about 46 years,
S/o Late C.R.Hiremath.
c. Smt.Manjula Hiremath,
Aged about 42 years,
D/o Late C.R.Hiremath.
d. Miss Sadhana Hiremath,
Aged about 39 years,
D/o Late C.R.Hiremath.
All are r/o 25th Ward,
Raghavanka Swamy Mutt,
2
Fort, Bellary - 583 102.
2. Smt.Shivagangamma,
Aged about 88 years,
W/o Late Veerabhadraiah,
R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
Since deceased represented by Appellant
Nos.1(a) to (d) & Appellant No.3 to 7.
(as per court order dated 29.11.2012)
3. Sri M.V.Pandit,
Aged about 88 years,
Husband of Late Prema,
Since deceased rep. by Appellant Nos.5 to 7
4. Sri Virendra M.Pandit,
Aged about 53 years,
Since deceased by his LRs.
a) Smt.Veena Pandit,
Aged about 50 years,
W/o Late Virendra M.Pandit.
b) Ms.Reena Pandit,
Aged about 30 years.
c) Ms.Beena Pandit,
Aged about 28 years.
b & c are daughter of Late Virendra M.Pandit.
d) Anoop pandit,
Aged about 26 years,
S/o Late Virendra M.Pandit.
a to d r/at Kadolkar Galli, Belgam.
(as per court order dated 19.12.2013)
3
5. Dr.Ashok,
Aged about 51 years.
6. Sri Ravindra M. Pandit,
Aged about 49 years.
4 to 6 are the S/o M.V.Pandit.
7. Smt.Vidya,
Aged about 46 years,
D/o Sri M.V.Pandit.
All appellants are rep. by their GPA holder
Miss Sadhana Hiremath,
Aged about 39 years,
D/o Late Sri C.R.Hiremath,
R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
... Appellants
(By Sri S.Sudindranath, Advocate.)
AND:
1. Sri Akkamahadevi Samaja,
A society registered under the
Societies Registration Act,
No.20, Kumara Park West,
Bangalore - 560 020, By its Secretary.
2. The President,
Sri Akkamahadevi Samaja,
No.20, Kumara Park West,
Bangalore - 560 020.
3. The Anubhava Mantapa Trust,
No.19, Reservoir Street,
Kumara Park West, Bangalore - 560 020.
4. Sri Sri Sri Jagadguru Channa
Basava Rajendra Swamigalu,
Peethadhipathi of Uravakonda,
4
Ananthpur District, Andhra Pradesh,
and at Bangalore Branch No.E/5,
Girls School Street, Kumara Park West,
Bangalore - 560 020.
5. The Deputy Commissioner,
Andhra Pradesh Endowment Department,
Karnool, A.P. - 518 001.
... Respondents
(By Sri Yoganarasimhan, Senior Counsel for Ms.Deepashree,
Advocate, Sri A.S.Mahadeva Swamy & Sri S.B.Totad,
Advocate for R-1 to 3;
Sri H.R.Anantha Krishna Murthy, Advocate for R-4;
Sri C.Lakshminarayana Rao, Advocate for C/R-5.)
This Regular First Appeal filed under Section 96 read
with O XLI of CPC against the judgment and decree dated
09.09.2005 passed in O.S.No.8150/2002 on the file of the
Prl. City Civil and Session Judge, Bangalore dismissing the
suit for declaration.
IN R.F.A.CROB.No.39/2005:
BETWEEN:
The Deputy Commissioner,
Andhra Pradesh Endowment Department,
Karnool, A.P.
...Cross Objector
(By Sri C.Lakshminarayana Rao, Advocate.)
AND:
1. Sri C.R.Hiremath,
S/o Late Sri Rudraiah Hiremath,
Aged about 71 years, R/o 25th Ward,
Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
By his power of attorney holder
Miss Sadhana Hiremath,
Since deceased by his LRs.
5
a. Smt.Neelamma Hiremath,
Aged about 63 years,
W/o Late C.R.Hiremath.
b. Sri Mahesh Hiremath,
Aged about 46 years,
S/o Late C.R.Hiremath.
c. Smt.Manjula Hiremath,
Aged about 42 years,
D/o Late C.R.Hiremath.
d. Miss Sadhana Hiremath,
Aged about 39 years,
D/o Late C.R.Hiremath.
All are r/o 25th Ward,
Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
2. Smt.Shivagangamma,
Aged about 88 years,
W/o Late Veerabhadraiah,
R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
Since deceased rep. by Respondent Nos.(a) to (d)
of Respondent No.1 & 2 to 7.
(as per court order dated 29.11.2012)
3. Sri M.V.Pandit,
Aged about 88 years,
Husband of Late Smt.Prema,
4. Sri Virendra M.Pandit,
Aged about 53 years,
5. Dr.Ashok,
Aged about 51 years.
6
6. Sri Ravindra M. Pandit,
Aged about 49 years.
Sl.No.4 to 6 are S/o Sri M.V.Pandit.
7. Smt.Vidya,
Aged about 46 years,
D/o Sri M.V.Pandit.
Sl.No.3 to 7 are r/at Kadolkar Galli, Belgam.
All Respondents i.e., Sl.No.1 to 7 are
rep. by their GPA holder
Miss Sadhana Hiremath,
Aged about 39 years,
D/o Late Sri C.R.Hiremath,
R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
(Respondent Nos.3 to 7 are LRs of Respondent No.2
as per court order dated 29.11.2012.)
8. Sri Akkamahadevi Samaja,
A society registered under the
Societies Registration Act,
No.20, Kumara Park West,
Bangalore - 560 020, By its Secretary.
9. The President,
Sri Akkamahadevi Samaja,
No.20, Kumara Park West,
Bangalore - 560 020.
10. The Anubhava Mantapa Trust,
No.19, Reservoir Street,
Kumara Park West, Bangalore - 560 020.
11. Sri Sri Sri Jagadguru Channa
Basava Rajendra Swamigalu,
Peethadhipathi of Uravakonda,
Ananthpur District, Andhra Pradesh,
and at Bangalore Branch No.E/5,
Girls School Street, Kumara Park West,
7
Bangalore - 560 020.
... Respondents
(By Sri H.R.Anantha Krishna Murthy, Advocate for R-1;
Sri Sudindranath, Advocate for R-1(a to d) & R-3 to 11 (VK
not filed); Sri Sudindranath, Advocate for R-2.)
This RFA Cross Objection in RFA No.1713/2005 filed
under Order 41 R 22 of CPC against the judgment and
decree dated 09.09.2005 passed in O.S.No.8150/2002 on
the file of the Prl. City Civil and Session Judge, Bangalore, in
so far as negatively answering Issue No.12.
IN R.F.A.CROB.No.2/2006:
BETWEEN:
1. Akkamahadevi Samaja,
A society registered under the
Societies Registration Act,
No.20, Kumara Park West,
Bangalore - 560 020, By its Secretary.
2. The President,
Akkamahadevi Samaja,
No.20, Kumara Park West,
Bangalore - 560 020.
3. The Anubhava Mantapa Trust,
No.19, Reservoir Street,
Kumara Park West, Bangalore - 560 020,
By its Secretary M.Sivappa, Advcoate,
Bangalore.
...Cross Objectors
(By Sri Yoganarasimhan, Senior Counsel for Ms.Deepashree,
Advocate.)
AND:
1. Sri C.R.Hiremath,
Since dead by his LRs.
8
a. Smt.Neelamma Hiremath,
Aged about 63 years,
W/o Late C.R.Hiremath.
b. Sri Mahesh Hiremath,
Aged about 46 years,
S/o Late C.R.Hiremath.
c. Smt.Manjula Hiremath,
Aged about 42 years,
D/o Late C.R.Hiremath.
d. Miss Sadhana Hiremath,
Aged about 39 years,
D/o Late C.R.Hiremath.
All are r/o 25th Ward,
Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
2. Smt.Shivagangamma,
Aged about 88 years,
W/o Late Veerabhadraiah,
R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
Since dead by her LRs Respondent Nos.1(a) to (d)
and Respondent No.3 to 7.
(as per court order dated 29.11.2012)
3. Sri M.V.Pandit,
Aged about 88 years,
Husband of Late Smt.Prema,
4. Sri Virendra M.Pandit,
Aged about 53 years,
5. Dr.Ashok,
Aged about 51 years.
6. Sri Ravindra M. Pandit,
Aged about 49 years.
9
4 to 6 are S/o Sri M.V.Pandit.
7. Smt.Vidya,
Aged about 46 years,
D/o Sri M.V.Pandit.
3 to 7 are r/at Kadolkar Galli, Belgam.
All respondents are rep. by their GPA holder
Miss Sadhana Hiremath,
Aged about 39 years,
D/o Late Sri C.R.Hiremath,
R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary - 583 102.
8. Sri Sri Sri Jagadguru Channa Basava
Rajendra Swamigalu
Pethadhipathi of Uravakonda
Gavimath Samsthan, Uravakonda
Ananthpur District,
Andhra Pradesh - 515 001.
9. The Deputy Commissioner
Andhra Pradesh Endowment
Department Kurnool,
Andhra Pradesh - 518 001.
... Respondents
(By Sri Sudindranath, Advocate for R-1(a - d) & R-3 to
9 (VK not filed); R-2 is dead by his LRs are R-1(a - d) & R-3
to 7 vide order dated 29.11.2012; Sri H.R.Ananth Krishna
Murthy, Advocate for R-8.)
This RFA Cross Objection in RFA No.1713/2005 filed
under Order 41 R 22 of CPC against the judgment and
decree dated 09.09.2005 passed in O.S.No.8150/2002 on
the file of the Prl. City Civil and Session Judge, Bangalore, in
so far as negatively answering Issue Nos.6, 7, 8, 9 and 12.
This appeal and cross objections being reserved is
coming on for this day, the Court delivered the following:
10
JUDGMENT
The above appeal is preferred against the judgment and decree dated 09.09.2005 passed in O.S.No.8150/2002 on the file of the Principal City Civil and Sessions Judge, Bangalore.
2. For the sake of convenience, the parties herein are referred to by their respective rank as arrayed before the court below - appellants as plaintiffs and respondents as defendants.
3. Originally one C.R.Hiremath the plaintiff represented by his Power of Attorney Holder, filed the said suit seeking declaration that he is the owner of the property mentioned in the schedule to the plaint and to put to use the said property for the purpose for which it was allotted to His Holiness Jagadguru Urvakonda Karibasava Rajendra Swamy and further declaration is also sought to declare that all or any transaction, dealing, entered into or carried on by the defendants and any charge whatsoever created by them on the suit 11 schedule property or any portion thereof as illegal, ineffective and the same does not exist in the eye of law. Further, during the pendency of the suit, the said plaintiff expired and his legal representatives are brought on record.
4. Subsequently, apart from the L.Rs., who are brought on record as plaintiff Nos. 1(a) to (d), plaintiff Nos.2 to 7 were impleaded as per the order dated 03.08.2005 passed on I.A.X filed in the said suit.
5. It is the case of the plaintiffs that the 1st plaintiff was the younger brother of His Holiness Jagadguru Urvakonda Karibasa Rajendra Swamy (for short hereinafter referred to as Rajendra Swamy) who passed away on 27.12.1991. It is further alleged by the plaintiff that his brother Rajendra Swamy right from his boyhood was dedicated to social work with spiritual inspiration, who acitively participated in the Karnataka Ekikarana Movement; in appreciation of such commitment, the then Government of Mysore allotted 12 the site measuring 112.1' + 158'/2 x 168 situate at Kumara Park West, Bangalore lying to the South of Reservoir (Park Area), Kumara Park West Extension Block as indicated in the plan vide allotment letter dated 19.11.1952. Further it is contended that the said allotment was subject to certain conditions as stipulated therein and the possession was also handed over to him vide Possession Certificate dated 21.11.1952 issued by the then City Improvement Trust Board (Now Bangalore Development Authority) produced and got marked as Ex.P.3. It is further alleged that subsequently the Bangalore Development Authority also executed a sale deed in favour of the said Rajendra Swamy vide sale deed dated 29.10.1988. It is specifically alleged by the plaintiff that it came to his knowledge about such allotment and execution of the sale deed in favour of his brother Rajendra Swamy only on 12.8.2002. It is contended further that the originals of the said documents must be in possession of one Mr. 13 Gangadhar Gurumath, an advocate who is hostile to the plaintiff.
6. It is further alleged that the said Rajendra Swamy resided in the schedule property till his last breath and at the fag end of his life, he was not enjoying good health on account of various ailments; he had many disciples including workers, driver, cook and others to take care of him, who were also greatly benefited and therefore, plaintiff used to visit Swamiji periodically, but, remained permanently at Bellary; the said one Mr. Gangadhar Gurumutt, advocate, who was one of the disciple of Swamiji took undue advantage of Swamiji's ill health and acted adversely to put the schedule property in litigation. It is alleged further by the plaintiff that the said Gangadhar Gurumath under the guise of getting scheme constituted, set up his own persons to file O.S.No. 962/1991; as on the date of filing of the present suit, O.S.No.962/1991 was still pending disposal on the file of the Principal Civil Judge, Bangalore. Further it is alleged that on coming to know 14 of the pendency of the said suit, the plaintiff herein got himself impleaded as defendant No.11 in the said suit.; as the plaintiff stayed at Bellary, he was unable to get further details in the said suit and he came to know that a receiver was appointed by the Hon'ble Court in the said O.S.No. 962/1991.
7. The plaintiff further contended that though he is not having any desire or liking to amass any wealth, he determined to cherish the dreams of his brother and put the schedule property for exclusive use for which it was allotted by the then City Improvement Trust Board.
8. It is alleged further that the daughter of the plaintiff by name Miss. Sadhana Hiremath who has remained as Spinster, dedicated her life to social work and also agreed to fully dedicate herself in the pursuit of putting the schedule property for the maximum benefit of the public at large and cherish the ambition of the first plaintiff and her uncle. In pursuance of which she started collecting the documents like encumbrance 15 Certificate for 50 years, Allotment letter dated 19.11.1952, Trust Deed of Anubhav Mantap Trust, dated 12.10.1955, Sale Deed dated 29.10.1988 and the entire order sheets in O.S.NO. 962/1991, Report of the Receiver in the said suit and Assessment Extracts in respect of the schedule property from the Bangalore City Corporation; on collection of such documents, it was revealed in the Encumbrance Certificate that the sale deed was executed on 29.10.1988 by the Bangalore Development Authority in favour of the brother of the deceased plaintiff. The plaintiff specifically alleged in the plaint that the allottee in the sale deed is described as executed in favour of Sri. His Holiness Jagadguru Urvakonda Karibasava Rajendra Swami, aged about 65 years residing at No.B-5, Kumara Park West, (Reservoir Water Town) Bangalore-20 and thus the said property was allotted and sale deed was executed exclusively in favour of the elder brother of the plaintiff with certain conditions and after the death of his brother, the property devolved upon the plaintiff as per Section 8 16 Entry-II (Clause II of the Schedule) to the Hindu Succession Act as the plaintiff was the only surviving successor to the said allottee. Further it is contended that the plaintiff No.2, who is the sister of the allottee and plaintiff Nos. 3 to 7, who are the heirs of another sister are entitled for the said suit schedule property and they have also furnished genealogical tree of the family of the said allottee.
9. It is alleged that the 1st defendant represented by its President, was nominated as one of the trustee in the 3rd defendant trust, and the said trust was formed by the said allottee, under the Trust Deed dated 12.10.1955 and the said Trust Deed was subsequently cancelled by the Registered Deed of Cancellation dated 29.7.1981. It is categorically stated in the said Cancellation Deed that the Trust Deed was void for the reason that since the registration of the document in the year 1955 for about 26 years, the Board of Trustees did not function, it did not construct any building as per the plan approved by the Trust Board and the 17 Government Architect as per the conditions of the grant much less the Religious and Cultural activities were carried out. Further it is contended that Trustees- 2 and 4 viz., A.C. Shanthamalle Gowda, Sri Ramaiah and Sri H. Puttaswamy expired and New Trustees were not co-opted after their death, nor any approval was obtained as required under the condition of the deed of trust either orally or in writing, in the result there is no fully constituted Board. It is further contended that under the said Trust Deed, the Board of Trustees are required to submit each year the audited statement of accounts of "The Anubhava Mantapa Trust' and no such statements were ever been made or brought to Swamiji's notice since the execution of the Trust Deed; On the other hand, the Swamiji himself constructed the building for the religious and social activities and also constructed building for the use of his disciples out of the donations and free gifts given to him by his disciples. It is specifically contended in the said Cancellation Deed that the 3rd defendant never came 18 into existence nor did it function as required by the terms and conditions of the Trust Deed.
10. It is further alleged by the plaintiff that the Khatha of the Property was registered in the name of the said Rajendra Swamiji, taxes were fixed as per the special notice dated 03.02.1988 issued by the Corporation Authorities and the said late Rajendra Swamiji remained in the said property without any hindrance by any person, much less by the defendants till his death. It is further contended that in view of the execution of the sale deed in the year 1988 by the Bangalore Development Authority in favour of Swamiji, the Trust Deed dated 12.10.1955 is of no consequence and the said Trust Deed is nullity in the eye of law. Further it is alleged that even though the 3rd defendant is a non entity and does not exist, the 3rd defendant is made as a party in the suit as group of most influential persons under the guise of the said trust/defendant are falsely representing the 3rd defendant and it is necessary, just and expedient to declare all their acts, 19 deeds and things done by them under the guise of 3rd defendant as null and void. It is further alleged that the 1st defendant is a society registered under the Societies Registration Act; the 2nd defendant is its President and in the Trust Deed dated 12.10.1955, the President of the 1st defendant was nominated as one of the Trustee, while the Trust was cancelled, it was a non entity in the eye of law and the question of 2nd defendant representing the 1st defendant in respect of any of the affairs of the suit schedule property does not arise and as such, any interference caused by the 1st and 2nd defendant concerning the schedule property is illegal, null and void. It is further contended that even during the life time of the said allottee, the 1st defendant, which is supposed to be a Lingayath community institution was permitted to use a small portion of the suit property for any other functions or events beneficial to the public and neither the 1st defendant nor the 2nd defendant can have any right, title or interest over the schedule property or any portion of the schedule property while 20 the Bangalore Development Authority executed the sale deed in favour of the allottee. Further it is alleged that as the matter stood thus, the 1st defendant got the Khatha in respect of a portion of the suit schedule property registered in its name illegally and the Bangalore City Corporation has given two municipal numbers to the schedule property as 19-20 and 20-19 in respect of suit property and the said numbers are registered now in the names of 3rd and 1st defendants respectively. The plaintiff got issued notices to the Corporation for immediate cancellation of khatha and the notices were also sent to the 1st defendant both under the Registered Post and under Certificate of Posting on 24.09.2002.
11. It is specifically alleged by the plaintiff that after obtaining the municipal records with regard to municipal numbers 20-19 in the name of 1st defendant, the plaintiff also obtained encumbrance certificate for 50 years from 01.04.1952 to 17.09.2002 and no transaction is noticed in the name of the 1st defendant 21 and in any event, they are of no consequence as the sale deed was executed by the Bangalore Development Authority in the name of the said Rajendra Swamiji/grantee. It is further contended by the plaintiff that the suit property, has been in occupation of the tenants and as on the death of the Swamiji i.e., as on 27.12.1991; he was in constructive possession of the suit property and appointment of the Court Receiver does not in any way change the basic legal position of the suit property, as what is taken over by the Court Receiver is the constructive possession, as an agent of the True Owner.
12. Further it is contended that on the death of the said Rajendra Swamiji on 27.12.1991, the plaintiffs also got constructive possession of the suit property and none else other than the plaintiffs hold the constructive possession of the schedule property as he is the true owner of the schedule property. Hence, the plaintiffs restrict their prayer to declaration only, in their favour 22 without any consequential relief. Thus they sought decreeing of the suit as prayed for.
13. In the written statement filed by defendant Nos.1 and 2 viz., Akkamahadevi Samaj and its President, it is specifically pleaded that the expression "Swamiji" does not convey any sense or meaning and they have denied the contentions of the plaintiff that the said Swamiji was the front runner in the Social Service and was playing a pivotal role in Karnataka Ekikarana Movement. It is specifically pleaded that the allotment of the property was not for the personal use of the Swamiji, but, the same was in trust, in favour of Urvakonda Mutt Swamiji and the allotment was subject to the condition that the property was to be used for specified and general public purpose and thus the Swamiji was charged with responsibility of using the same for public purposes and in substance, the property was allotted to the public through the instrumentality of the Swamiji and thus the public trust was created by the State itself subject to of course, to 23 prevailing laws; Swamiji had no personal right or interest over the property. The registered agreement and possession certificate referred to in the plaint was the formality to be observed by the CITB and in substance it was sub-ordinate to Government decision to allot, which culminated in the sale deed executed by the BDA in favour of the Swamiji. As such the schedule property was never owned by the Swamiji in the real sense, but, was held by the Swamiji in his name in Trust and as such subsequent execution of a formal Sale Deed in the name of the Swamiji, neither enlarged nor abridged the vested rights of the Trust nor did it revoke or enlarge that of the Swamiji.
14. It is specifically pleaded that in the execution of the Sale Deed is operational subject to the Trust created; otherwise it is illegal and invalid and the Sale Deed of the year 1988, is to be read as being subordinate to the earlier transfers. They have also denied with regard to the role of Sri Gangadhar Gurumuth in the affairs of the original Swamiji. Thus 24 while denying the contentions of the plaintiff's with regard to the allotment of the property in the individual name of the said Swamiji, it is further pleaded that the allegations with regard to the filing and pendency of the Original Suit 962/1991 and under Section 92 of the Code of Civil Procedure are all per se irrelevant in the suit and the same are denied.
15. It is specifically pleaded by defendant Nos.1 and 2, that the claim of the plaintiff to claim the property is a dishonest and is a fraud on the public; the defendants do not admit and deny that the plaintiff had anything to do with the deceased Swamiji at any relevant point of time. The object and purpose of the grant determines the nature of grant and the description of the parties or their nomenclature did not determine the object to be achieved; the then Swamiji's successors, if any, are successors in the office or otherwise regulated by him as an unattached person. The Swamiji's status as a disentangled ascetic and assuming and adopting of the order of sanyasi as long 25 back, dissociated with his original family bonds to the knowledge of all and more particularly the plaintiff. It is further contended that the very status of being the Swamiji as a sanyasi was renouncement of all worldly and material bondage for the Swamiji; Swamiji belonged to the society and society is the successor to Swamiji and beneficiary of Swamiji's deeds; and the entire claim and reasons propounded by the plaintiff is fallacious and misleading. It is specifically denied the contention that the plaintiff is the legal heir of the deceased Swamiji in preference to Mutt and public at large and his dishonest claim to public property is denied. It is also pleaded that the Swamiji in so far as Poorvashrama is concerned has snapped all his bondage and had a civil death socially and a spiritual rebirth; it was also in that latter capacity that the plaint schedule property was entrusted to him as a Trustee charged with responsibility also; the responsibility was sought to be discharged by him by bringing into existence the 3rd defendant under a registered deed retaining him a right 26 to nominate one trustee, the other being outsiders; that transition of power and obligations have been noticed accepted and acted upon for decades and the Swamiji had no right of revocation of the trust nor to recall any of the powers; Infact, it was a legally competent and proper form of discharging his obligations; it was managerial in nature too; thus the Anubhava Mantapa Trust/the 3rd defendant was lawfully constituted and is functioning as well for over several decades. It is further pleaded that unsuccessful attempts of late Swamiji to have the 3rd defendant dissolved in judicial proceedings O.S.No.266/1974 and O.S.No.4012/1985 establishes the fact that the 3rd defendant has come to stay and confirmation of Swamiji's lacking of power to deal with the 3rd defendant; in law, he was incapable of neutralizing the 3rd defendant; the trust deed has been thus alive, vibrant potential document. Further it is pleaded that the suit is regulated by the decisions in those suits and this suit is barred by resjudicata. It is also contended that in view of the dismissal of suit in 27 O.S.Nos.160/1974 on 16.09.1975 and O.S.No.4012/1985 on 12.02.1990, the right of the defendant in the suit is clearly established and suit is barred by principles of resjudicata. Further it is pleaded that the purported cancellation deed dated 27.07.1981 has no legal effect at all on the Trust deed of 12.10.1955, which withstood the test for over 25 years. With regard to the holding of the khatha of the property in one or two names, bifurcation thereof by the Municipal Corporation on its needs, etc., are not germane at all in these proceedings in as much as being public religious charitable properties, the ultimate, will be free from eligibility of tax. This position was in existence even to the knowledge to the late Swamiji, who deliberately allowed it achieve the objectives of the Trust.
16. Further it is pleaded that the standing of the Khata is only for the benefit of the Trust and not for individual and in any event, the plaintiff has no right to question the same not in these proceedings either. It is 28 specifically pleaded that having allowed it to happen for over decades, the plaintiff is not entitled to question them after this length of time and the acquiescence of late Swamiji.
17. It is further pleaded with regard to the allegations that the defendants are misusing and interrupting with the property that these defendants do not claim the property for their own use, but, holds the same in Trust for public purpose, characterizing possession of occupants as adverse to this defendant or in favour of the Swamiji or plaintiff is untenable. Infact certain elements using their status and nearness to the Swamiji are trying to create havoc, which will be dealt with by the 3rd defendant suitably once the ligitgation in O.S.No.962/1991 is terminated.
18. It is further contended that the sale deed dated 29.10.1988 alone will not determine the rights of the Swamiji or these defendants; the same is subject to a superior law which enures to the benefit of the trust 29 and nothing more. It is further pleaded that the Sanyasi has no blood relative heir; his successor is the order or the institution he belongs to; after becoming the Sanyasi, the plaintiff claiming in this behalf is woefully selfish, self created and is fraudulent. Infact Jagadguru, Uravakonda Mutt of Andhra Pradesh and its local unit are in existence ruled by the current Swamiji and without impleading him, this suit having been filed is fatal.
19. Further it is pleaded that the 3rd defendant (Trust) by its resolution dated 24.09.1959 made over to the 1st defendant, a portion of the suit schedule property i.e., measuring 50' x 80' to carry on its acitivities. This was approved by the CITB and has become final. It is also pleaded that Kumara Park West extension was subsequently transferred by the State Government from the jurisdiction of CITB to the Corporation of the City of Bangalore, which issued an endorsement bearing No.B5PR197/69-70 dated 10.08.1970 and the said site measuring 50' x 80' made 30 over to the 1st defendant was exempted from property tax.
20. It is further pleaded that the Bangalore Mahanagara Palike/Corporation of the City issued a certificate bearing No.BA 274 12/98-99 dated 16.10.1998 to the effect that the Khata of the said site measuring 50' x 80' granted to the 1st defendant and also issued an endorsement dated 10.08.1970 exempting 1st defendant from payment of property tax with effect from1.4.1966. It is also contended that if the BDA executed the sale deed in respect of the suit site in favour of the late Swamiji, that sale deed has no legal effect, because, the CITB and the BDA have ceased to have jurisdiction over Kumara Park West Extension by then.
21. It is pleaded that the suit property belonging to the trust was not valued properly as the market value of the property is about Rs.2,50,00,000/- and the Court fee payable is Rs.3,20,000/- but, the valuation valued is 31 woefully inadequate and dishonest and he has to pay the requisite Court Fee on the market value of the property; but, for mere declaration is not maintainable, untenable and is liable to be dismissed in limine and the prayer sought is not grantable and even otherwise the defendants have perfected the title against any individuals. As such, the suit as prayed is barred by limitation and sought dismissal of the suit.
22. Defendant No.3 (The Anubhava Mantapa Trust) in its statement of objections has denied the allegations of the plaintiff's on all material aspects as pleaded by defendant Nos. 1 and 2 and has specifically pleaded with regard to its right over the property that the trust deed dated 12.10.1955 was never revocable nor was any such power ever residuary or specifically retained. That very plea and purported abortive attempt on the part of the Swamiji itself is indicative of the stability of Swamiji's mind at that point of time and the control of his satellites over him and the selfishness of such surrounding persons. Further unsuccessful 32 attempt on the part of the Swamiji to have this defendant dissolved in judicial proceedings in O.S.Nos.266/1974 and 4012/1985 establishes the fact that this defendant has come to stay and confirmation of Swamiji's lacking of power to deal with this defendant. In law, he was incapable of neutralizing this defendant. The trust deed has been thus live, vibrant potential document. The suit is also barred by principles of resjudicata in view of the dismissal of suits
- O.S.Nos.260/1974 on 16.09.1975 and 4012/1985 on 12.02.1990. Thus even the 3rd defendant trust while corroborating the written statement filed by 1st and 2nd defendant has specifically pleaded that the trust is never cancelled, it still exists, functions and carries out the objectives of the trust as contemplated under the terms and conditions of the Trust Deed and the Swamiji had no power to cancel the trust. It is pleaded that after creation of the trust, the trust had constructed its building in the schedule property and the same are let out to the tenants except the portion made over to the 33 1st defendant which was approved by the CITB. It is also pleaded by the 3rd defendant that the suit is not valued property; Court fee paid is insufficient and seeks disposal of the suit.
23. In the written statement filed by defendant No.4 - Sri Sri Jagadguru Channa Basava Rajendra Swamigalu, Peethadipathi of Uravakonda-Gavimath Samstan, Uravakonda, Ananthapur District, it is pleaded that the plaintiff was the brother of one Veeraiah before the latter became the Sanyasi and joined the religious order. After Veeraiah became Sanyasi, it is deemed to be in law, civil death to him or such person severing all earthly connections with his natural family. The said Veeriah after Sanyas is given the name His Holiness Jagadguru Sri Karibasava Rajendraswamy. Later he succeeded as the Seventh Peethadhipathi of Gavimuth Samstan, Uravakonda and it is admitted that he expired on 27.12.1991 at Bangalore, Branch of Gavimuth Samstan. It is also pleaded admitting that the documents referred to in 34 para-3 of the plaint with regard to the documents referred to therein are admitted subject to proof and the rest of the averments are not to the knowledge of this defendant and the plaintiff is put to strict proof thereof.
24. With regard to allegations made against Gangadhar Gurumath, it is pleaded that the same has not come to his knowledge and with regard to pendency of O.S.No.962/1991 it is stated that it is a matter which is subjudice and the same is pending disposal; it is neither denied nor admitted the said pendency of the suit. It is specifically pleaded that the extract of the preamble of the Sale Deed dated 29.10.1988 is wrongly shown as Sri H.H.Jagadguru Uravakonda Karibasava Rajendra Swamy and purposely/intentionally omitted 'of' to be prefixed to Uravakonda only to make it believe, the Swamiji is independent of Uravakonda Muth of which he was the Peetadhipathi recognized by the Endowment Department, Government of Andhra Pradesh. It is specifically pleaded that on the facts of the instant case, the provisions of the Hindu Succession 35 Act is not applicable; the Genealogical details mentioned at para-6 by the plaint omitting the descendants of the first and second sons of Rudraiah - Hiremath, not furnishing the details of the daughters of the said Rudraiah Hiremath, are significantly omitted and it is also pleaded that the first son of the deceased - Rachaiah Hiremath has left behind 6 sons; it is further pleaded by the 4th defendant that admitting about the execution of the Trust Deed and also its cancellation by the Swamiji has denied the constructive possession of the plaintiff in his individual capacity. It is further pleaded that there is no cause of action for the suit and the Court fee paid is not correct and it is specifically contended by the 4th defendant that there was vacancy of the office of Matadhipathi of Gavimuth Samsthan, Uravakonda, on the death of the 7th Matadhipathi H.H. Jagadguru of Urvakonda Sri Karibasava Rajendra Swamy on 27.12.1991 at Bangalore. By an order of the Commissioner, Endowment Department, Andhra Pradesh Government, Hyderabad bearing 36 No.R.C.No.CI/6690/91-92 dated 28.12.1991, the 5th defendant herein was appointed as Administrator to Gavimuth Samsthan Uravakonda and its branches in Karnataka and Andhra Pradesh. Likewise, he took possession of the suit property at Bangalore after making an inventory.
25. The 4th defendant was nominated as Successor to the deceased Swamiji on 21.03.1992 by its order G.O.MS.309 issued by the Government of Andhra Pradesh. Further the Commissioner of Endowments, Hyderabad in pursuance of the order dated 31.07.1992 in W.P.M.P.No.11794/1992 and W.P.No.5720/1992 passed by the High Court of Andhra Pradesh and after conducting enquiry permitted the 4th defendant by its order bearing No.ROCI 66804/1991 dated 10.08.1992 to perform religious and spiritual functions of the Math.
26. It is further pleaded that under Section 53(1) and (2) of the Andhra Pradesh Act, the Endowment Commissioner of Andhra Pradesh passed an order on 37 16.06.1997 appointing this interim Mathadhipathi as permanent Peetadhipathi of Gavi Math Samsthan Uravakonda including its Branches in Karnataka and Andhra Pradesh and he took charge of the office on 23.06.1997 and in that capacity, he is continuing even to this day and as such, has sought dismissal of the suit.
27. The 5th defendant in the suit viz., Deputy Commissioner of Andhra Pradesh Endowment Department in his statement of objections while denying the case of the plaintiff's in toto pleaded that the ancient Gavimutt of Urvakonda in Ananthapur District is governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endorwment Act, 1987 and this Mutt has various 'Branch Mutts' and one of them is the Shakha Mutt situated at Kumara Park Extension, Bangalore. It is further pleaded that the main Uravakonda Mutt is having Presiding Deity Sri Chandra Mouleshwara Swamy and having vast properties both moveable and immoveable and the secular 38 administration of Urvakonda Mutt is being carried out by the Andhra Pradesh Endowment through its Assistant Commissioner (Manager) is stationed at Uravakonda.
28. It is further pleaded that earlier Mathadhipathi Jagadguru Sri Karibasava Rajendra Swamiji of Uravakonda Gavimuth, after a brief spell of physical aliment attained Samadhi on 27.12.2001 On the very next day of the leaving the mortal soil by the said "Sri Jagadguru Karibasava Rejendra Swamiji, i.e., on 28.12.1991, the Andhra Pradesh Government through its Endowment Department appointed Sri Narayanappa, Deputy Commissioner (Endowments) of Kurnool as the Administrator of the Gavimutt Samsthan, Uravakonda.
29. It is further pleaded that on 21.03.1992 by its order G.C.M.S.309, the Government of Andhra Pradesh appointed Sri Channabasava Swamy (Defendant No.4) of Tumkur Branch Mutt as the interim Matadhipathi of 39 Gavimutt to look after the spiritual and religious functions of the Main Mutt excluding the secular administration. Further the Commissioner of Andhra Pradesh Devadaya Shaka stationed at Hyderabad in pursuance of the order dated 31.07.1992 passed in W.P.M.P.11794/1992 and W.P.No.5720/1992 by the Hon'ble Andhra Pradesh High Court conducting equity and hearing the Counsel of both parties permitted Tumkur Branch Mutt Swamiji, Sri Channabasava Swami by his order R.O.No.CI/66804/91 dated 10.08.1992 to perform religious and spiritual functions of the Gavi Mutt.
30. It is further pleaded that acting under Section 53, 54(1) and (2) of Andhra Pradesh Charitable and Hindu Religious Institutions Endowment, the Commissioner for Endowment Government of Andhra Pradesh passed an order and 16.06.1997 appointing the interim Mathadhipathi Sri. Channabasava Swamy of Tumkur Branch Mutt as permanent Peethadhipathi of Gavimutt Samsthan at Uravakonda and thereafterwards 40 the Swamiji named as Jagadguru Sri Channabasava Rajendra Swamiji took charge on 23.06.1997 at 9.45 a.m. and continued even to this day.
31. Further it is pleaded that the 5th defendant entered appearance in O.S.No.962/1991 proceedings while he was appointed as administrator due to vacancy of Gadi of Matadhipathi of Gavimutt. At that point of time Deputy Commissioner (Endowment) was one Sri Narayanappa who later died and in his place later the fourth defendant office is occupied by Sri S.S.Prasad Reddy.
32. It is specifically contended by the 5th defendant that the Branch Mutt of Uravakonda at Bangalore, which is the subject matter of dispute, now under the control and Management of successor to the late Jagadguru Sri Karibasava Rajendra Swamiji and successor, where in Government of Andhra Pradesh recognized Peethadhipathi of main Mutt at Uravakonda, Jagadguru Sri Channabasava Rajendra Swamiji i.e. 41 defendant No.4 and that all the controversies have been laid at rest resulting in permanent legally accepted successor to the deceased first defendant Jagadguru Sri Karibasava Rajendra Swamiji i.e., 7th Peethadhipathi. (First Defendant in O.S.No.962/1991).
33. With regard to allotment of property, it is specifically pleaded that, present Uravakonda and its neighbourhood was a part of the Mysore territory and Rulers of Mysore have granted huge plots of valuable lands for the use of Gavimutt of Uravakonda; the traditions of the princely kingdom of Mysore even after Re-organization of States after independence and consequently having lost the Rulership and when the erstwhile Mysore was under the democratic set up, the Rev.Chief Minister in 1952, Sri K.Hanumathaiah was moved by the tremendous upsurge and pulsating ambition to spread the knowledge of spiritualism and having outlook and rational thinking, said K.Hanumanthaiah was responsible to pass the Government Order granting the big space of land 42 situated in the heart of the Bangalore City at Kumara Park Extension measuring 112+158/2 X 168 Sqft. with certain conditions vide grant order dated 25.06.1952.
34. It is also contended that this defendant is thrusting to restore back the schedule property at Bangalore in consonance with the terms of grant in the sale deed. This defendant is officially aware of the fact that any violation of the terms of the grant would entail for forfeiture of the building and structure put on the leased property without any compensation paid thereof. It is pleaded for that, it shall not be allowed to be done and this defendant certainly and positively take all the steps to restore back the pristine glory of this illustrious Muth at Bangalore and pave way for insemination of knowledge and religion and spiritualism to reach the common man and thus fulfill the objects as envisioned at the time of grant between the H.H.Jagadguru Sri Karivasava Rajendra Swamigalu and Hon'ble Chief Minister of Mysore Late Sri K.Hanumanthaiah. 43
35. It is further submitted by this defendant that the above suit filed is a speculative Suit and colluding with the defendants 1 to 3 to knock off the valuable property covered under the Suit Schedule, with the knowledge that it belongs absolutely to the Gavimath Samsthan, Uravakonda administered and managed by the Endowment Department, Government of Andhra Pradesh, through this defendant, seeks for dismissal of the suit.
36. On the said pleadings, the learned Judge framed the following issues:
1. Whether the plaintiffs prove that the open site bearing old Municipal No.20 (new Nos.20-19 and 19-20) measuring 112.1'+ 158'/2 x 168' situated at Kumara Park West which came to be allotted by the then City Improvement Trust Board (Now Bangalore Development Authority), Bangalore, through the registered agreement Dated 19.11.1952 and which came to be subsequently conveyed under the registered Sale deed dated 29.10.88 by Bangalore Development Authority, Bangalore, in favour of Late Sri. His Holiness Jagadguru Uravakonda Karibasava Rajendra Swamy was allotted and conveyed under the said agreement and sale deed in his individual 44 capacity, but, not in any other capacity or to any other Trust or Mutt through him?
2. Whether the plaintiffs further prove that the said Late Swamiji treated, developed and maintained the said property by constructing structures thereon in his own individual capacity, but, not as the property of any Trust or Mutt?
3. "If issue Nos. 1 and 2 are answered in the 'affirmative', whether the plaintiffs further prove that Sri. C. R. Hiremath, the deceased plaintiff No.1, being the younger brother of Late Swamiji and, after his demise, the plaintiff Nos.1(a) to 1(d) being his legal representatives, and also plaintiff No.2 Smt. Shivagangamma being the sister of late Swamiji and plaintiff Nos. 3 to 7 being the legal Representatives of Smt. Prema Pandit, another Sister of late Swamiji who died after his demise, all Succeeded to the suit property?"
4. Whether the plaintiffs 1(a) to 1(d) prove that they are the only legal representatives of the deceased plaintiff No.1 Sri. C. R. Hiremath?
5. Whether the plaintiffs prove that third Defendant Trust, namely, The Anubhava Mantapa Trust never came into existence in respect of the suit schedule property and it never functioned as such?
6. Whether the defendants prove that the said open site came to be allotted and conveyed to the public Trust or Urvakonda Mutt Samstanam through Late Sri His Holiness Jagadguru Urvakonda Karibasava Rajendra 45 Swamiji but not to the said Swamiji himself as an individual?
7. Whether the defendants prove that the said Late Swamiji held, developed and maintained the said property as the property of Public Trust or Mutt but not in the capacity of absolute owner thereon?
8. Whether defendant Nos.1 and 2 prove that the Third defendant Trust, namely, Anubhava Mantapa Trust was lawfully constituted in respect of the schedule property and it has been functioning as such dealing with the said property?
9. Whether defendant Nos. 1 and 2 further prove that the present suit is barred by res judicata in view of the dismissal O.S.No.260/74 on dated 16.09.1975 and O.S.No.4012/1985 on 12.02.1990?
10. Whether defendant Nos. 4 and 5 prove that Defendant No.4 came to be nominated on 21.03.92 by Government of Andhra Pradesh by its order No.Go.MS.309 as interim Matadhipathi of Gavi Mutt Samsthanam and later as permanent Matadhipathi of the said Mutt by the Endowment Commissioner of the State of Andhra Pradesh by his order dated 16.06.97?
11. Whether defendant No.5 proves that this suit is bad for non-joinder of necessary parties?
12. Whether the suit is not properly valued by the Plaintiffs?46
13. Whether Plaintiffs are entitled to the reliefs Sought for in respect of the suit schedule Property?
14. What Order or Decree?
37. On framing the said issues, the plaintiff No.1(d) Ms.Sadhana Hiremath got examined herself as PW1 and got marked documents at Exhibits P1 to P44. On behalf of defendants, three witnesses were examined i.e.DW.1 Smt.D.C.Umadevi, the then President of first defendant namely Akkamahadevi Samaja, and got marked documents Ex.D1 to D26, Defendant no.4 His Holiness Sri Sri Jagadguru Channabasava Rajendra Swamiji has got himself examined as DW.2 and one Sri Jagadguru Shivananda Swamyavaru as DW.3 and has got marked the documents as Exhibits D27 to D41. 5th defendant an official got examined as DW.4 and got marked exhibits D42 to D47.
38. On conclusion of the evidence and after hearing the arguments of learned counsel for the plaintiff as well as defendants 1 to 5, the learned 47 Prl.City Civil Judge deemed it fit to dismiss the suit and directed the parties to bear their own costs vide Judgment and Decree dated 09.09.2005.
39. Aggrieved by the said Judgment and Decree, the plaintiffs are in this appeal inter alia contending amongst other grounds that, the judgment and decree impugned is erroneous and contrary to the facts prevailing in the case. Further it is contended that while observing at para-45 that it is an undisputed fact that the then CITB allotted a site measuring 112.1 X 158/2 X 168 feet situated at Kumara Park West in Bangalore City under the registered agreement dated 19.11.1952 and possession was delivered to Late Swamiji under possession certificate dated 21.11.1952 and thereafter BDA Bangalore executed registered sale deed 29.10.1988 in the name of late Swamiji. Ex.P1 to P3 are to be admitted in evidence and their contents are to be held undisputed, has wrongly observed that the contentions of the plaintiffs that the suit property was allotted to Swamiji in personal capacity has not been 48 denied by the defendants specifically will have to be taken as admitted, cannot be accepted.
40. Further, it is contended that the learned Judge grossly erred in not appreciating the pleadings, evidence and various rulings relied in the proper prospective, while the trust deed dated 12.10.1955 never came into existence and was never acted upon and has failed to consider that the agreement dated 19,.11.1952 and terms and conditions in the said agreement would no more prevail in view of the sale deed dated 29.10.1988 by the BDA with new terms and conditions, ought to have considered by the learned Judge. Further it is contended that the learned Judge brushed aside the categorical recitals in the sale deed dated 29.10.1988 that the said absolute sale deed came to be executed in favour of the Late Swamiji only on fulfillment of the conditions of the agreement dated 19.11.1952 and fulfillment of the conditions is the consideration for executing the said absolute sale deed executed by the BDA, has not been taken into 49 consideration by the trial court. Further, the trial court ought not have looked into or considered any other documents or circumstances to interpret the said documents/ sale deed.
41. It is specifically contended by the appellant that the trial court at Para-52 observed about the execution of the sale deed by the BDA in favour of the Swamiji on fulfillment of the conditions of the agreement, the trial court ought not to have looked into any other factor other than the terms and conditions of the absolute sale deed dated 29.10.1988. But the learned Judge has mis-interpreted said sale deed and has wrongly held that the right to enjoy the rents and profits must have been given to the late Swamiji for spending the same towards maintenance and development of the suit property but not towards his own maintenance as by reason of His Holiness being Jagadguru of Urvakonda Mutt, he did not require anything towards his maintenance and besides this, he had none to maintain by him because he being 50 unmarried, had no wife or children any dependents of any kind.
42. Further it is contended that though the learned Judge held contents of Ex.P2 - sale deed undisputed without any reason has observed that the site was not granted to the Swamiji in his individual capacity as contended by the plaintiffs but it was granted through late Swamiji to benefit of the public and for public purpose and such an observation is without any legal basis and lacks legal approach. The trial court grossly erred in ignoring the categorical enunciation of law that the condition in the agreement would survive till the sale deed is executed and when once the sale deed is executed conditions containing in the absolute sale deed will govern as observed in the case of R & M Trust VS Koramangala Residents Vigilance Group Reported in AIR 2005 SC 894
43. Further when contents of Ex.P2 puts at rest all the controversy and when the contents are free from 51 any ambiguity in respect of all the matters in controversy the question of production of any other document or documents that is copies of the representation earlier to 1952, that is more than 50 years old documents is suggesting for an impossibility and giving no importance to the best evidence produced, but the trial court ignored well settled principles in that regard. The adverse inference against the appellant is to be drawn for not having produced the certified copies of the said representations and without applying legal mind and without taking into consideration the best evidence on record.
44. Further it is contended that when the pleadings and evidence are not denied by the defendants 1 to 3 and one witness examined by them as DW1 while answering to a suggestion elicited that there are no documents with Anubhava Mantapa Trust in respect of any of the activities carried out by it during the period from 1955 to 1981. The none production of such documents by defendants the trial court has to 52 draw adverse inference but the same has been judiciously ignored.
45. It is specifically contended by the appellant that the trial court erred in not considering the cancellation deed, though the said deed was marked as Ex.P4 and is admitted by the defendants 1 to 3 in their written statement. It is also contended that the observation of the court below that neither the plaintiffs nor the defendants produced any documents pertaining to the construction of the building and what is produced by both sides in support of their respective contentions is oral and documentary evidence. To conclude the trial court at Para-45 of the judgment held that the contents of Ex.P2 is to be held undisputed. It also erred in coming to the conclusion that evidence of DW1 that personal knowledge as to the oral evidence of PW1 and there appears to be no reason to disbelieve the evidence of DW1.
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46. Further with regard to observations made at para-82 that the Swamiji never treated the suit property and never maintained and developed the same as his personal property and even if the said cancellation deed does exist, there is no material to believe that it was executed by His Holiness late Swamiji only and it was acted upon by him during his life time which was almost a decade after its coming into existence, such observation is contrary to the facts and documents. Further it is contended that the observations made by the learned Judge at Para-80 of the judgment that recitals of Ex.P5 - trust deed disclose that Swamiji had given up in favour of the 3rd defendant - trust all his rights and interest in the open site that was allotted in his name under Ex.P1 and buildings proposed to be constructed on it with clear intention of surrendering the same in favour of public at large through the said trust. It is further contended that trial court failed to take into consideration the undisputed fact that Swamiji maintaining the property till his death and is running 54 spiritual centers at the schedule property and transfer of katha in the Municipal records show his name and execution of sale deed is in individual name of the Swamiji and if really defendant No.3 has constructed buildings, the said trust did not raise any objection that BDA has executed the sale deed in favour of Swamiji, which fact is ignored by the trial court.
47. Further, the trial court grossly erred in taking into consideration Ex.D18 as an undisputed document while DW1 categorically stated in her cross examination that she was not knowing whether the respective respondent / tenants in the said HRC petition had taken the contention that Swamiji was the owner of the premises and that Anubhava Mantapa Trust in the said petition was not the owner thereof. Thus, the trial court answered issues No.1, 4 and 5 in the negative improperly without appreciating both oral and documentary evidence placed on record in proper perspective and seek to set aside the judgment and decree so passed and to decree the suit as prayed for. 55
48. While disposing of the said suit in the judgment as certain issues are answered in favour of the plaintiffs and against the defendants; the defendants 1 to 3 chose to file Cross Objections in RFA Crob.No.2/2006, inter alia, contending amongst other grounds that they are aggrieved by the findings recorded on issue Nos.6 to 9 and 12 and the court below erred in not noticing pendency of OS No.962/1991 and observing that the same had nothing to do with the suit before it and recording of finding on issues No.6, 7 and 8 as incorrect. Further contended that finding on issues No.9 to 12 regarding valuation of the suit the by the trial court is not proper and the same requires to be set aside.
49. The defendant No.5 has also chosen to file RFA Crob.No.39/2005 contending that it is common contention of the respondents that plaintiff has not valued the suit property and the court fee paid is insufficient, but, the trial court has grossly erred in holding that it is specific case that Swamiji himself has 56 inducted various tenants in the building comprising the suit property and as such he was in constructive possession thereof and after his demise the suit property devolved on the plaintiffs and as such they continued to be in constructive possession thereof and that they sought the declaration that they are the owners of the suit property along with the restrictions attached to it and on account of their un-acceptable relationship as members of a family with the Swamiji, the finding given on Issue No.12 is not sustainable on facts and which requires to be set aside. They sought reversal of the findings given by the trial court and the said issue regarding valuation of the suit.
50. Thus, the impugned judgment is not only challenged by the plaintiffs, but, the defendants have also challenged the same on different issues which are held against them.
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51. Counsel for the respective party namely appellants and respondents submitted their arguments at length.
52. The learned counsel appearing for the appellants Mr.Sudindranath submitted that in the year 1952 the then Government of Mysore granted a site to His Holiness Jagadguru Urvakonda Karibasava Rajendra Swamy and such grant was subject to certain conditions and thereafter in the year 1955 the alleged trust was created; however, in the year 1981 the said trust was cancelled; subsequently, BDA executed sale deed in favour of the Swamiji in the year 1988 and the Swamiji died in the year 1991. In the circumstances, plaintiffs who are legal representatives of the Swamiji filed the suit, whereas defendants 1 to 3 claim their right over the suit schedule property under trust deed and the Uravakonda Karibasavarajendra Mutt is also claiming the property.
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53. Further he submitted that Ex.P1 - Deed of Agreement executed on 19.11.1952 between His Holiness Sri Jagadguru Karibasava Rajendra Mahaswamigalavaru, Guru Mutt, Uruvakonda, Ananthapur District and the Government of Mysore represented by its Chairman, City Improvement Trust Board, Bangalore City, stipulates certain conditions on the application made by the first party for grant of land and the second party recommended the allotment of an extent of land mentioned in the schedule and whereas the Government in the Order No. L. 5877-90/I.T.B. 5- 52-82 dated 30.07.1952 approved the allotment of the said site with certain conditions, which stipulates that a decent building as per the plan to be approved by the Board and the Government Architect at a cost of about Rs.1 lakh to be put up; building should be constructed within a period of about three years from the date of allotment; the building should be used as cultural and religious center open to all communities and classes; that the site should not be alienated and in the event of 59 violation of any of the conditions aforesaid the Board shall resume the site with the structures thereon.
54. In that regard he further submits that such allotment was for the use of land for cultural and religious center open to all communities and class, whereas, Mutt confined only to particular community and it is not open to all communities. Hence, clause (3) of the agreement has to be construed as the agreement is made to an individual and not to the mutt.
55. He further submitted plaintiffs are successors of Swamiji, in as much as original plaintiff was brother who since deceased are represented by the plaintiff No.1 and plaintiff No.2 is sister and plaintiff No.3 is legal representatives of another sister. He submits the trust deed executed by Swamiji is void ab-initio and not acted upon and not gone into, the plaintiffs have every right to succeed to the property. In that regard he further submitted that biological relationship of plaintiffs with that of the Swamiji is not in dispute. Likewise, grant of 60 property also is not in dispute, but, the only question to be considered is as to whether the property was allotted in favour of individual person or in favour of Mutt.
56. In that regard he further submits that Government Grants Act, 1895, also known as Crowns Act, makes it clear that Transfer of Property Act is not applicable to lands granted by the Government, in as much as, Section 2 of the said Act specifically states that Transfer of Property Act 1882 is not applicable to Government grants. Further, he also contended that Section 3 of the Act takes effect according to the tenor of the document, in as much as, all provisions, restrictions, conditions and limitations contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, notwithstanding any rule of law, statute or enactment of the Legislature to the contrary, though Section 10 of TP Act is saved by Government Grants Act and Government Grants Act is still in force. Likewise he further contends Section 11 of the TP Act is also saved by Government Grants Act. In 61 the circumstances, the terms and conditions in Ex.P1 and 2, agreement and sale deed executed by BDA in favour of Late Swamiji will have to be interpreted as per terms of Government Grants Act. In that regard he also relied on the decisions of the Apex Court in the case of M/S. HAJEE.S.V.M. MOHAMED JAMALUDEEN BROS. AND CO., vs GOVERNMENT OF TAMILNADU reported in AIR 1997 SC 1368 - Head Note (A), wherein it is held rights, privileges and obligations under the grant are regulated by its term, irrespective of whether such terms are inconsistent with any other law.
57. He as also relied upon the decision of the Apex Court in the case of EXPRESS NEWSPAPERS PVT LTD vs UNION OF INDIA reported in AIR 1986 SC 872 - Head Note (C), wherein it is held the overriding effect of Sec. 3 is that, grant of property by the Government partakes of the nature of law since it overrides even legal provisions which are contrary to the tenor of the document.
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58. In that regard he contended that when Swamiji executed the trust deed Swamiji was not having any title over the property and was only an agreement holder and besides trust never came into existence. Thus even a pleading with regard to estoppels under Section 43 of the TP Act is not applicable to the facts and it cannot be said that Swamiji having created trust is estoped from cancelling it.
59. He further specifically contended that trust deed was never acted upon as evidenced by subsequent developments, in as much as, Ex.P6 which is dated 03.02.1988 discloses that the assessment notice is issued assessing the tax to be paid with regard to the suit property by Swamiji and it also makes it clear that property is in the name of the Swamiji and even as on 03.02.1988 nothing is mentioned about the trust. Further he contended that even as per Ex.D27, which document is got marked by DW2, which is dated 30.04.1983 discloses that Swamiji is recognized as the 63 owner of the property and nothing is mentioned about formation of the trust. Similarly, Ex.D28, which is notice dated 23.07.1960 issued under Rule 9, Schedule 3, Section 145 of the Corporation Act 1949, discloses that said notice is given to the Swamiji in his individual capacity and nothing is forthcoming with regard to the creation of trust. Ex.D29 dated 25.07.1960, which is tax paid receipt got marked by the defendants also discloses that same was received from Swamiji and trust is not at all in the picture.
60. Further he submitted that a civil suit by Shashidhara and Chaandrashekhar in Misc. No.653/1990 recognise that Swamiji of Uruvakonda Mutt was the owner of the property. The said petition was not filed against the trust. In that regard he submits Ex.P8 clearly discloses that there is nothing on record about creation of the trust and trust having any right in the property and also does not disclose that whether trust was acted upon.
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61. Further he submits that even as per amended plaint in O.S.No.962/1991 which is registered subsequent to allowing of Misc. No.653/90 the plaintiffs therein have not recognized any trust with regard to the suit schedule property and thus he contended that the trust said to have been created by Swamiji was void - ab-initio and it is against to terms of grant and against the Government Grants Act and was never acted upon.
62. He further submits that Receiver was appointed to manage the properties and Receiver took possession of the property from Swamiji and not from the trust. It is contended further by the counsel for the appellant that at the time when the present suit was filed property was managed by Receiver and suit for mere declaration was filed without seeking possession and Receiver holds property for and on behalf of real owner. Further, he submits that in the impugned judgment at Para-101 it is clearly observed that Receiver was appointed by Court in OS 962/91 during life time of Swamiji and Receiver took custody of entire 65 suit property is not in dispute. Further it is stated in the judgment that Ex.P12 - certified copy of the Receiver's Interim Report submitted by Receiver also establish the fact that he had taken custody of the entire suit property and further it is elicited by the learned counsel that Defendants 1 to 3 in their cross examination that after demise of Swamiji taxes were paid by Receiver himself and Receiver died about 2 to 3 years ago from the date of cross examination.
63. Thus he submits that the creation of trust by Late Swamiji was void-ab-initio and it was never acted upon and there are no documents to prove that trust did really come into existence. The learned counsel for appellant further contended with regard to allotment of the property, that property was allotted in the name of individual and not in the name of Mutt. Swamiji was doing social work and he is doing it apart from he being Matadhipathi. During the cross examination of DW1, namely, D.C.Umadevi, at para-60 has deposed that she does not know any of the activities of the Swamiji prior 66 to year 1952, she does not know as to Swamiji is aged 65 years at the time of demise; she does not know as to Swamiji is doing spiritual and religious excises before he becoming Mathadhipathi of Mutt and thus the said witness does not deny the said suggestion on the contrary she pleads ignorance of the same. Further DW2 during his cross examination also categorically admitted with regard to activities of Swamiji. He stated that the Swamiji was one of the leaders in Karnataka Ekikarana Movement, Swamiji was a political leader and he knew Swamiji since 1957.
64. He further submitted that allotment of property made was to the Swamiji in his individual capacity on recognizing such social activities and on the application submitted by the said Swamiji said allotment was made. He further relying upon on the compromise petition filed before Civil Judge, Ananthapur, A.P. in OP No.134/1964, submits that in the said petition the Mutt itself recognized individual ownership of the Swamiji on the properties acquired by 67 him. Further he submitted as to one of the recitals of the compromise petition it is stated that Matadhipathi is entitled to any Padakanukas or other gifts of property given to him in his personal capacity and such Padakanukas or gifts of property to belong to him alone and they shall not form part of the math. In that regard he relied on the deposition of DW4 and submitted that during cross examination he conceded to the suggestion that Swamiji used to conduct various activities in the name and style of Socio, Spiritual Center only at Bangalore in the premises of the schedule property and many devotees used to offer donations and other gifts. Thus he submitted that Swamiji used the property not as that of the mutt, but, used the same as that of his own individual property. He also submitted that Swamiji was not Sanyasi and requisite ceremonies has to be performed on initiation as Sanyasi, which was not at all performed and it has to be construed as one of the proof and he recognized his rights to Poorvashrama. Swamiji had not given up his Poorvashrama. 68
65. Thus, the sum and substance of the arguments of counsel for the appellant are that Swamiji was never a sanyasi; the allotment was covered by Grant Act and not by Transfer of Property Act; the trust deed is void ab-initio, non-existent in the eye of law; swamiji retained his association with worldly life, as such he was not a sanyasi; the trust never came into existence and did not exist in the eye of law; the property in question was allotted to swamiji individually and retained in his individual name; the sale deed is executed in his individual name; being the brother i..e, the original plaintiff and the other plaintiffs could succeed under Section 8 of the Hindu Succession Act. Accordingly, plaintiffs succeed to the suit property. Further, he submitted that the very conditions imposed while allotting the property to swamiji discloses that the Government itself created a trust in swamiji and swamiji held the property for the use of general public at large.
69
66. Per contra, Sri Yoganarasimha, learned Sr. counsel appearing for respondents 1 to 3 at the outset submitted that the plaint is bald; no such points are argued before the Court or forthcoming in the plaint; further, he emphasized with regard to declaration as to whether the trust deed or the cancellation deed is null and void and the reason for not seeking any relief with regard to the trust is also not forth coming. Further, he submitted O.S.4012/1985 (Ex.D.17) filed by swamiji was dismissed for non-prosecution on 12.02.1990. In that regard he further submitted that the suit was filed seeking declaration that he was the owner of the property and for consequential relief of injunction; on such dismissal of the suit for non-prosecution, no further proceedings were taken up and the same became conclusive.
67. Further, he submitted with regard to the deed of cancellation of trust, that power to cancel the trust deed is hit by Order 9 Rule 9 of CPC; there is no cause of action afresh for the same. Further, he submitted 70 that Urvakonda Gavimath Samsthana filed O.S.No.94/1974 seeking declaration and declaring that the suit property is the property of the said mutt and to grant permanent injunction restraining the defendants/trustees, successors or his agents from interfering with the plaintiffs-mutts possession as per Ex.D.39 and the said suit vide order dated 16.09.1975 was disposed of under Order XVII Rule 1 of CPC inasmuch as, in the copy of the order sheet so marked which is dated 16.09.1975 states that the plaintiffs counsel is absent, prays for adjournment and that swamiji is succeeded and that` Maatadipati has not filed objections, hence, it is disposed under Order XVII Rule 1 of CPC. Further, he submits that on dismissal of the said suit filed by the swamiji as Mathadipathi in O.S.No.94/1974, swamiji did not take any further steps for restoration of the same and on the other hand, he chose to file O.S.No.4012/1985 seeking such relief in his individual name and the said suit was also dismissed for non-prosecution, but, the swamiji never 71 challenged the said order or never took any steps for restoration of the same. In the circumstances, to overcome those laches of passing of the judgment in the two suits, swamiji executed the cancellation deed which is not proper. Ex.P.5 - the trust deed discloses that the land was granted in pursuance of the meeting of the trust board held on 23.6.1952 and in pursuance of such meeting, the property was allotted by the CITB and not by the Government.
68. Further, he submits that the trust deed amply makes it clear regarding the object of creation of trust, inasmuch as it is state that to comply with the conditions of allotment, such a trust deed came into existence as per Ex.P.5 dated 12.10.1955. Further, he submitted that on consideration of the objectives of the mutt, the allotment of site was also by way of free of cost; under the said trust deed, the swamiji himself delivered the property to the trust and he divested his interest in the property and the said trust deed is marked as Ex.P.5. Once the trust is created, the trust 72 can never be removed or annulled. Exception is only in respect of 'principle of cyprus'. In the circumstances, he further submitted that it is not in law that a purported revocation can lead any Court to uphold the revocation and the reasons assigned to such revocation was that the trustees never informed him about the works carried on; there is violation of condition; quorum of trust is not there and such an alleged cancellation of the trust is not based on factual allegation which is proved. Further, he submits that the said cancellation of document was also hit by law of limitation as it was beyond 3 years from the date of knowledge. The trust deed was not void but it was only an unsuccessful attempt of the swamiji to nullify the same. Further, he submits after the creation of the trust, the trust deed carried out the responsibility entrusted to the trust. In that regard swamiji also executed general power of attorney for effective implementation of the objectives of the trust and likewise, a portion of the property which was in custody of the Anubhava Mantapa Trust was 73 allotted to Akkamahadevi Seva Samaja through CITB for carrying out the objectives of the trust.
69. With regard to the role of swamiji in running the mutt, swamiji was no-doubt entitled to receive padakanikas as per Ex.D.32 i.e., the notification issued by the Government of Andhra Pradesh except that he would not receive any other property in his individual name. He could not take grant of land as padakanike. Further, he submits that as per Ex.P.25, the extract of register of original petitions maintained with regard to O.P.134/64 on the file of the Pr.Sr.Civil Judge, Ananthpur, that matadipathi is entitled to appoint an agent to look after the spiritual or religious activities of the mutt and he does not hold the office at the pressure of the matadipathi and in pursuance of the same, it amply makes it clear that the trust created by swamiji was valid and there was no reason for him to revoke and much less the swamiji had any right to revoke the trust once created by him. Further, it is also his contention that as per Ex.D.5 the Anubhava Mantaka 74 Trust was recognized by the then CITB/BDA and the property was allotted to the Akkamahadevi's Trust out of the property that was allotted earlier to the mutt and the same measured 50 feet x 80 feet and thus, it only makes it clear that the then CITB recognized it and the Anubhava Mantapa Trust exercised its right over the property and it did not resume the land which was already granted for want of any activities. On the contrary, it acquiesced the rights exercisable by the Anubhava Mantapa Trust for public purpose notwithstanding the fact that the property has changed hands. BDA has perpetuated with knowledge by omission or by concurrence as the case may be and as such, swamiji is estopped From claiming that the property belonged to him individually. He further submits that as the property was allotted for public purpose, the property tax was exempted by the Corporation and the swamiji was unable to put up the building within 3 yeas from the date of such allotment; he invited participation of public by executing the trust 75 deed on 12.10.1955. Thus the CITB, the mutt recognized the trust so formed by the swamiji. The trust continued to hold the property and this is implicit even as on today.
70. Further he submitted that the biological brother can succeed to the properties of the swamiji only in relation to his personal properties and when the swamiji himself disclaims his individual properties, there is nothing for the plaintiffs to succeed. The cross examination of PW1 clearly discloses with regard to such renunciation of such swamiji. Further, he submitted that to become a petadipati, one should be a spiritual person. Further, he also relied upon the cross examination of PW1 at paragraphs 10 and 11 and submitted that it clearly negatives the contention of the plaintiffs that swamiji was never a sanyasi. Further, he submitted once the trust is created and the same cannot be revoked, it is hit by Section 126 of Transfer of Property Act as well as Section 78 of the Trust Act. 76 Section 78 of the Trust Act is not applicable to Public Trust.
71. With regard to OS 962/91 where the receiver was appointed in a scheme suit, he submitted that when in the said scheme suit a person voluntarily impleads himself, it is clear that the trustees are bound by that besides, the trust deed itself makes it abundantly clear that the said trust cannot be revoked for any reason inasmuch as in the said trust deed, the author of the trust has clearly stated neither himself nor his successors can cancel the trust or change the trust for any reasons and thus, he submitted that the trust once created and when it also carried out the activities for which purpose the trust was created as explained earlier, cannot be cancelled and he had no right to cancel the same. Thus, the trust even now continues to exist and it is in possession of the property carrying on its activities. Thus, revocation or cancellation deed is not valid. He also relied upon the discussion made on 77 ascetic in B.K.Mukherjea Hindu Law at page 334 which describes about the properties of an ascetic.
"7.21. Can an ascetic acquire and hold personal property? As has been said above when a layman becomes an ascetic, his connection with his natural family and existing property rights are extinguished. If he acquires any property subsequent to his becoming an ascetic, such property passes on his death not to his natural but to his spiritual heirs. A pertinent question arises at this stage as to whether it is at all possible for an ascetic to acquire or hold any personal property subsequent to his renunciation of the world."
72. Further, he submits that the mutt speaks through matadipathi. The burden is on the others who contradicts the said role of matadipathi. Thus, the learned Sr. Counsel appearing for respondents 1 to 3 viz., Anubhava Mantapa Trust, its director etc. submits that the property was basically allotted in favour of the mutt; the mutt speaks through the matadipathi and the said swamiji rightly created a trust to carry out the objectives, i.e., the conditions imposed while allotting the said property; the trust deed also contained regarding the non-revocation of the trust once so 78 formulated. Further, he submitted the one and the only condition which the swamiji had retained to himself was with regard to the fact that he should be informed of the nomination of successors to the trustees whenever vacancies arise. Except that reservation of the right to himself, nothing was reserved to the swamiji and thus, from the date when the trust was created, the property was vested with respondent trust. From that time onwards, the trust is actively carrying on its objectives. Further, he submits in pursuance of the said rights vested with it, a portion of the property for better management was handed over to Akkamahadevi Trust through CITB. The creation of the trust was duly recognized by CITB also and acquiesced into it. In the circumstances, the cancellation deed purporting to cancel the said trust which was so formed by the said swamiji is void-ab-initio and it is of no consequence. Thus, he also submitted the said matadipathi is a sanyasi; he had no personal interest in the properties so vested to the mutt and as such, the plaintiffs have no 79 right what-so-ever to file the suit; the suit is not maintainable and is liable to be dismissed. Thus, he also submitted with regard to the earlier proceedings wherein swamiji was a party by himself which also never yielded any result in favour of the swamiji.
73. Learned counsel appearing for 5th respondent submitted that there cannot be any separate existence between individual and mutt and the properties of the swamiji becomes the properties of the mutt used for the spiritual and religious activities of the mutt. Swamiji who was an aesthetic was recognized as such and died as an aesthetic. On the death of pontiff of the mutt like in Wakf Act the property should revert to the Government; the swamiji was not prohibited from taking any offerings; the property should be utilized for spiritual purpose. Thus, he submitted that whatever property was allotted to the matadipathi was the property of the mutt; Neither the trust nor the successors of swamiji can have any right over the property; the property vests with the Government of 80 Andhra Pradesh. Thus, he submitted that the matadipathi was acting under the Deputy Commissioner of Endowment Department stationed at Kurnool District of Andhra Pradesh and thus, the trust deed or the allotment of property in favour of Akkamahadevi Seva Samaja and creation of Anubhava Mantapa Trust, parting a portion of the property in Akkamahadevi Seva Samaja are all void ab-initio and the entire property should vest with the Endowment Department of Andhra Pradesh. There are lapses on the part of the legal department in drafting certain documents and that has created lot of confusion. Under the Wakf Act, the Chief Endowment Officer is a Sr. officer of the rank of IPS. Any property under the said Act must pass through the CEO and even here also the property will have to be routed through the Commissioner for Endowment Department to the Government of Andhra Pradesh which matadipathi has failed to carry out.
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74. Learned counsel appearing for the 4th respondent Sri Sripathi representing - President of Urvakonda Mutt submitted that on the demise of the then Swamiji, the 4th respondent succeeds to all the rights which the swamiji had enjoyed in the mutt and accordingly, the Andhra Pradesh Government has nominated him as the petadipathi of the said mutt which he continues to hold and he was appointed on 27.12.1991 as interim petadipathi of the mutt and later on, as per Ex.D.32 he has been appointed to look after the religious and spiritual activities of the mutt. Further, he submits that as perEx.D.36, the 4th respondent who was initially made an interim matadipathi was made a regular matadipathi from 26.3.1997. Thus, whatever properties was allotted to the mutt, now vests with the 4th respondent matadipathi and nobody else can claim over the same much less the plaintiffs seeks dismissal of the suit.
75. In reply to the arguments of the learned Sr. counsel for respondents 1 to 3 and the counsel for 82 respondents 4 and 5, learned counsel appearing for the plaintiffs/appellants submitted that the three suits which were filed by different persons in various capacities claiming different reliefs viz., OS 94/74 renumbered as OS 266/74, OS 4012/85 and OS 32/86, difference from the nature of reliefs sought; the cause of action were all different and besides none of those proceedings were decided on merit and as such, the judgment in those cases will never operate as resjudicata.
76. Further, he submits that without filing of the copy of the plaint in the said suits, the cause of action cannot be presumed or inferred on the basis of the order sheet. Further, he also submits OS 94/74 and OS 4012/85 were not filed by the swamiji but matadipathi represented by his power of attorney had filed the suit without the knowledge of the Swamiji. Further, he reiterated his arguments with regard to the incompetency of the swamiji to execute any trust deed 83 and he himself had no absolute right over the property as he was only an agreement holder.
77. With regard to the reliefs sought by the plaintiffs in the plaint, he submits that the suit is basically based on the sale deed of the year 1988 and however, seeking relief of cancellation of deed which was much earlier to the year 1988 is not required as the sale deed super cedes all other previous documents, the sale deed has become conclusive, nobody has assailed the said sale deed and as such, there is no declaration is sought in respect of the sale deed.
78. Further, he submitted a valid trust can no- doubt cannot be revoked, but, as this trust is a still born trust which was void ab-initio; it never functioned, and as, swamiji himself had no powers to create such trust, it cannot be said that the trust is in existence and carries out the activities of the trust. Further, that if CITB had recognized the allotment of portion of the property to Akkamahadevi Seva Samaja; there ought to 84 have been a regular sale deed in favour of the samaja also and thus seeks decreeing of the suit as prayed for.
79. With regard to the contentions of the learned counsel for 5th respondent - the Commissioner of Endowment, Andhra Pradesh he replied that there is no material on record to show that the swamiji had become sanyasi. Further, he submitted that the property was not a mutt property and as such the decision relied upon by the counsel for 5th respondent is not applicable besides, the receiver was appointed and on the death of receiver, the property vests with the Court and the Court holds the property for the benefit of the true owner. The provisions of the grant only makes it clear that the said property cannot be alienated at all.
80. Thus, in view of the submissions made by the respective counsel for appellants as well as the respondents, the points that arise for consideration are:
(1) Whether the judgment and decree passed in O.S.8150/2002 on the file of the Prl.City Civil and Sessions Judge, Bangalore is liable to be set-aside?
(2) What order?85
81. Apart from the said point, the other anciliary points which also requires consideration in the facts of the case are that:
(a) Whether the property was allotted in favour of Swamiji as a representative of the mutt or in his individual capacity?
(b) Whether the trust created by swamiji as matadipathi of the mutt was void? If not,
(c) Whether the creator of the trust had any right to revoke and the cancellation deed executed by swamiji was valid?
(d) Whether the execution of the sale deed in the year 1988 supercedes all other activities of the swamiji with regard to the creation of trust and cancellation of the trust?
Points of law to be considered are::
(1) Whether the suit filed by the plaintiff is hit by the principles of resjudicata?
(2) Whether the Court fee paid is sufficient? And whether the suit is valued properly?
The Mutt - Required qualification to become Matadhipathi - Rights and Obligations of Matadhipathi:-
82. In the facts and circumstances of the case before adverting to the respective contention of the party in relation to the suit schedule property, it is also necessary to consider the Rules of the mutt, the requisite qualities or qualifications to become Matadhipathi, the rights and obligations of the 86 Peetadhipathi/Matadhipathi as per the norms of Sri Urakonda Gurumath Samsthan before considering as to, "Whether the property was granted in favour of Swamiji as a representative of the mutt or in his individual capacity.
83. In that regard the 4th defendant - the present peetadipathi of the Urvakonda Gavimath of Samsthan, Urvakonda, Ananthpur District is examined as DW2. He has deposed that he was the head of Karibasava Swamy Mutt, Hosapet, Tumkur - a branch Mutt of Urvakonda Gavi Mutt Samsthan, from 1961; the deceased Sri Karsi Basava Rajendra Swamiji - the Peetadhipathi of Uravakonda Gavi Mutt Samsthan was his preceptor who nominated him as his successor of Uravakonda Gavi Mutt Samstan, Andhra Pradesh on 12.03.1984. He has further deposed that after the death of Sri Kari Basava Rajendra Swamy, he was appointed as an Administrator of the Mutt by the Deputy Commissioner (Endowment), Karnool and there was another contestant for succeeding to the vacant post of Matadhipathi and therefore, he could not occupy 87 the place of 7th Matadhipathi of the main mutt immediately; he was only nominated as the interim mathadipathi on 21.03.1992; the Commissioner (Endowment) stationed at Hyderabad, in pursuance of the orders dated 31.07.1992 passed in W.P.M.P.11794/2002 and W.P.5720/92 passed on the file of the High Court of Andhra Pradesh, by its order dated 10.08.1992 permitted him to perform the religious and spiritual functions of the Uravakonda Mutt excluding secular administrations; on 16.06.1997, the Endorment Commissioner of Andhra Pradesh stationed at Hyderabad appointed him as the permanent Peetadhipathi of Gavi Mutt Samsthan of Uravakonda including its branches; he took charge of the office on 23.06.1997 at 9.45 AM and he continues to be the same as on the date of he deposing before the Court. He also got marked the documents as per Exs.D.27 to D.41 and nowhere in his evidence he deposed anything about the details of the creation of the original mutt, the details of the branches of the mutt, whether the branch of the 88 mutt was in existence at Bangalore much prior to allotment of suit schedule property and what are the requisite qualities and qualifications to become a Matadhipathi and what were the powers conferred on the erstwhile Swamiji while so nominating or appointing him as Matadhipathi. Even during the course of cross examination, he has deposed nothing with regard to these aspects.
84. On perusal of the documents so got marked by him i.e., Exs.D.27 to 41, it is seen that Ex.D.27 is the licence issued by the Bangalore City Corporation for constructing the building in the schedule premises which is dated 30.04.1983, Ex.D.28 is the assessment order dated 23.07.1960. Ex.D.29 is the tax paid receipt dated 25.07.1960. Ex.D.30 is the pamphlet printed in Telugu with regard to the coronation of the 4th defendant, Ex.D.31 is the letter authorizing the Deputy Commissioner (Endowment), Karnool to be incharge of the files of the Court until further orders. Ex.D.32 is the order of the Commissioner for Endowment of 89 Hyderabad appointing the 4th defendant as the interim Matadhipathi of Sri Gavi Math, Uravakonda, Ananthapura District to look after the religious and spiritual activities of the mutt. Ex.D.33 is another order passed by the Commissioner (Endowment) dated 10.08.1992 restraining the 4th defendant from interfering in the secular administration of the mutt. Ex.D.34 is also another letter issued by the Office of the Commissioner (Endowment) dated 23.03.1992 entrusting the 4th defendant with religious duties pertaining to the Mutt subject to the Court directions, if any. Ex.D.35 is the letter handing over the pooja articles to 4th defendant to perform the pooja and the same is dated 25.03.1992, Ex.D.36 is the letter dated 23.06.1997 addressed from the Assistant Commissioner (Endowment) to the Commissioner (Endowment Department) reporting that 4th defendant succeeded to the Office of Matadhipathi under Section 53(1) of the Act. Ex.D.37 is the letter addressed by the Additional Commissioner of Endowment, Hyderabad permitting the 90 joint operation of the accounts of the mutt by the 4th defendant and the manager of Sri Gavi Mutt Samsthanam, Uravakonda, Ananthapuram District. Ex.D.38 is the copy fo the orders passed in W.P.2825/1992 and other connected cases on the file of the High Court of Judicature, Andhra Pradesh at Hyderabad; under the said writ petitions the appointment of the 4th defendant as interim matadhipathi was challenged and the said writ petitions were allowed, vide order dated 17.01.1997. In pursuance of the said orders passed in the writ petitions, the Commissioner (Endowment), Andhra Pradesh deemed it fit to pass appropriate order on 16.06.1997 and the copy of which is got marked as Ex.D.40. ON perusal of Ex.D.40, it is seen that the nomination of 4th defendant herein by the then Sri Karibasava Rajendra Swamiji as Uttaradhikari of Gavi Mutt was recognized and accordingly, he was appointed as the Mathadhipathi of Urvakonda Gavi Mutt. Ex.D.39 is the copy of the order sheet in O.S.94/74 by the 91 vacation District Judge at Bangalore which suit was disposed off under Order XVII Rule 1 of CPC on perusal of which it is seen that in the order dated 16.09.1975 as the plaintiff counsel was absent and no evidence was adduced, the suit was disposed of under Order XVII Rule 1 of CPC. EX.D.41 is the copy of the judgment passed in O.S.32/86 on the file of the Addl. Subordinate Judge, Anantapur wherein the order passed by the Commissioner and the Government removing the 4th defendant from the post of Matadhipathi was set-aside. Ex.D.42 is the copy of the register maintained by the then Trust Board (the then CITB) wherein at Item No.1006, a mention is made about the grant of site to Rajendra Swamiji. Thus, all the document so got marked by the 4th defendant discloses, that how the 4th defendant became the 7th Matadhipathi of Uravakonda Mutt and nothing is forth coming with regard to how the Mutt acquired the site and what are the qualities, rights and duties of matadhipathi and what are the requisites to become a Matadhipathi.
9285. Learned counsel for defendant Nos.1 to 3 referred to the The Hindu Law of Religious and Charitable Trusts by B K Mukherjea, 5th Edition and submitted that the property of 'ascetic' will become the property of the mutt. In that commentary at page no.334 in relation of property of 'ascetic', it is observed as hereunder:
7.21. Can an ascetic acquire and hold personal property? As has been said above when a layman becomes an ascetic, his connection with his natural family and existing property rights are extinguished. If he acquires any property subsequent to his becoming an ascetic, such property passes on his death not to his natural but to his spiritual heirs. A pertinent question arises at this stage as to whether it is at all possible for an ascetic to acquire or hold any personal property subsequent to his renunciation of the world.
86. However, in the subsequent paragraph itself i.e., at 7.21A, a detail discussion is made with regard to personal property and rules of succession as hereunder:
7.21A. Personal property and rules of succession.- Yajnavalkya, as stated already, has laid down special rules for succession to the property of ascetics who have been divided into three classes, namely, 93 Brahmacharis, Vanaprasthas or hermits and Sannyasis or Yatis. These rules imply that ascetics and have property, though commentators like Vijnaneswar, Mitramisra and others have explained the text as referring to the books, clothes, sandals and other articles which are necessary even for an ascetic. It cannot be disputed that the very meaning of the word "Sannyas" implies compete renunciation and, in fact, the ideas of renunciation and acquisition of property are wholly repugnant to each other. There are various texts in Hindu religious treatises which prescribe voluntary property for an ascetic and declare acquisition of wealth by religious men as positively sinful; but the question still arises as to what would happen if, in derogation of these injunctions which are certainly of a religious or moral character, a Sannyasi does acquire wealth or land. Does he forfeit his ownership in the acquired property? In other words, is he legally incapable of acquiring any title to it? The answer to this question has been given by the Judicial Committee in these words:
"No doubt, if a question arises whether a particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or which he was connected, the circumstances that the individual so acquiring property was a professed ascetic, may have importance. But it is out of the question to suppose that a man's religious opinions or professions can make him incapable in law of holding property. He may fail to act up to them, or take heretical and inconsistent views without incurring any penalty or disability in law".94
A point often arises, as it did arise in this case, as to whether, if a Sannyasi who acquires property happens to be the superior of a Math, the property becomes a part of the endowment itself or at least is presumed to have been acquired with that intention. This question I will discuss later on. But, so far as the general question is concerned, it may be taken to be settled law that there is no legal disability imposed on an ascetic from acquiring property in the ordinary way, however much such conduct might appear to be improper or sinful from the moral or the religious point of view.(emphasis supplied)
87. Thus, even as per the said commentary relied upon by the learned Senior counsel, there is no legal bar for Sanyasi or Ascetic to acquire any property in his individual capacity. Besides, as discussed supra, nothing is forthcoming regarding the obligations of Matadhipathi towards mutt and his rights towards his individual acquisition.
88. In this regard, plaintiffs to prove that the said Kari Basava Rajendra Swamiji had not renounced his worldly affairs or attachment with his family, relied upon correspondents made by the Swamiji with his family members/Purvashrama which are marked as 95 Exs.P.26 to P.44 on perusal of which it is seen that they are all the letters addressed by the Swamiji to his family members and others about some personal affairs like looking a groom for a girl in the family, looking for job to another etc. and also there is marriage invitation got printed by the family members of the Swamiji, wherein Sri Jagadguru Karibasava Rajendra Swamiji, Urvakonda Mutt, Bangalore is mentioned in the column of 'With Best Compliments From'. Thus it is manifest that though the said Karibasavarajendra Swamiji was heading the mutt as Matadhipathi, he had not totally disconnected/served himself from his family; he did actively participate in the affairs of the family and friends. Thus, Swamiji had distinct personality independent of he officiating as Matadhipathi.
89. Further it is also to be seen that the 5th defendant - the Deputy Commissioner of Endowment Department, Karnool District who is examined as DW4, during the course of his cross examination, has conceded to the suggestion that late Swamiji was 96 running socio-spiritual centre at Bangalore in the suit schedule property and thus, it is seen that running of such socio-spiritual centre which is very much in conformity with condition no.3 of the grant that the building should be used as cultural and religious centre open to all community and classes is fulfilled. Likewise, it is seen that the Uravakonda Mutt is meant exclusively for Veerashiva Community as deposed to by DW4, and it cannot be said that such a grant was made in favour of the mutt.
90. Thus, the word 'asectic' as per the Websters Dictionary means 'The practice of strict self-denial through personal and spiritual discipline' and as per the Oxford English Dictionary, it means, a person who practices severe self-discipline and abstains from all forms of pleasure, especially for religious or spiritual reasons.
91. Learned Counsel for the appellant relied on decision reported in (AIR 1980 Supreme Court 707) in 97 the case of KRISHNA SINGH VS. MATHURA AHIR AND OTHERS, Head Note 'E' reads as hereunder:
"(E) Hindu Law - Religious Endowment
- Person whether has become 'Sanyasi' -
Ceremonies required for becoming 'Sanyasi' - Ceremonies necessary among Dasnamis -
Usage or custom of particular sect determines what are essential ceremonies. (Hindu Law - Custom).
In order to prove that a person has adopted the life of a sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life. If must also be proved, in case of orthodox sanyasis, that necessary ceremonies have been performed, such as Pindadans or Birajahoma or Prajapathyesthi without which the renunciation will not be complete."
Learned Counsel further relied upon the decision rendered in the case of BABU LAL VS. MOTI LAL reported in AIR 1984 Allahabad 378, wherein paras 11 to 15, it is observed as hereunder:
"11. Learned counsel for the appellant contended that since this fact was admitted by Moti Lal that he became sanyasi thirty years ago and as such it was not necessary for the defendant to further establish that religious ceremonies were performed by Moti 98 Lal while adopting sanyas. I am unable to agree with this contention.
12. In Baldeo Prasad v. Arya Priti Nidhi Sabha AIR 1930 AII 643 it has been held that "The mere fact that a person declares that he has become a sanyasi or that he has described as such or wears clothes ordinarily worn by the sanyasi would not be sufficient to make him a perfect sanyasi. It is essential that he must enter into the fourth stage of his life in accordance with the necessary requirements. He must not only retire from all worldly interests and become dead to the world, but to attain this he must perform the necessary ceremonies without which the renunciation will not be complete". (Emphasis supplied)
13. The Division Bench in the aforesaid case has very clearly held that the person who adopts sanyas must perform the necessary ceremonies without which the renunciation will not be complete. In this view of the matter I am of the opinion that if Moti Lal in his statement said that he became sanyasi thirty years ago will not make him sanyasi until he has proved that he has entered into that religious order after performing the necessary religious ceremonies. If been performed the renunciation of worldly interests will not be complete and it cannot be taken that the person has adopted sanyas.
14. In Krishna Singh v. Mathura Ahir, AIR 1980 SC 707 Hon'ble Supreme Court held that "In order to prove that a person shown that the life of a sanyasi, it must be shown that he has actually relinquished and 99 abandoned all worldly possessions and relinquished all desires for them or that such ceremonies are performed which indicate severance of his natural family and his secular life. It must also be proved, in case of orthodox sanyasi that necessary ceremonies have been performed, such as Pindadans or Birajohoma or Prajapathyesthi without which the renunciation will not be complete."
15. It is thus well settled that in the absence of necessary ceremonies having been performed by a person entering in the life of sanyasi, renunciation will not be perfect, nor his civil death can be assumed so as to divest him from all right in the property belonging to him. There was neither any pleading or any issue on the point, nor any evidence was led to establish that necessary religious ceremonies were performed by Moti Lal at the time and as such merely on his admission and declaration to the effect that he had taken sanyas thirty years ago will not make him a perfect sanyasi so as to disentitle him in claiming any right in the property. Plaintiff Moti Lal claimed one-third share in the properties. It was for the defendant, who had contested the claim of plaintiffs, to establish that Moti Lal had ceased to hold interest in the property having entered into the religious order of a perfect orthodox sanyasi by performing necessary religious ceremonies without which renunciation and retirement from worldly affairs will not be complete and he will not become dead to the world. Such a case was neither plead nor it was established by any evidence on record that necessary religious ceremonies were performed by Moti Lal while adopting religious order of orthodox sanyasi. His admission or declaration of 100 becoming sanyasi will not help the defendant- appellant in the absence of any evidence to establish the said fact, as held in Baldeo Prasad's case (AIR 1930 AII 643) (supra)." Learned Counsel also relied on a decision in the case of AVADHESH KUMAR VS. SHEO SHANKAR reported in AIR 1985 Allahabad 104 wherein Head Note 'A' reads as hereunder:
"(A) Hindu Law - Person becoming Sanyasi - Proof - Modes. (Evidence Act (1 of 1872) S.3).
Two modes have been provided for the proof that a person has adopted the life of a sanyasi. The first mode is that is must be shown that he has actually relinquished and abandoned all worldly possessions and relinquished all desire for them. The second mode is to prove the performance of ceremonies which indicate the severance of his natural family and his secular life. Proof of performance of 'Prajapathiyesthi' and 'Birajahoma' are considered very essential."
92. Thus, both oral evidence as well as documents so got marked is silent with regard to the creation of the original mutt, the details of the mutt and also as to when exactly the branch mutt at Bangalore was started, whether it was prior to allotment of the suit 101 schedule property or subsequently; the evidence of the 4th defendant who became 7th Matadhipathi of the Mutt also does not disclose anything relevant for the purpose of adjudicating the rights of the parties to the suit schedule property.
The Grant of Suit Schedule Property:-
93. Now with regard to the suit schedule property, the undisputed facts are that the property in dispute was granted in the name of His Holiness Jagadguru Urvakonda Karibasava Rajendra Swamy vide order bearing No. L-5877-80-I.J.B.5-52-82 dated 30th July 1952, in pursuance of which the grantee also executed an agreement in favour of the City Improvement Trust Board (CITB) on 19.11.1952 and subsequently the present Bangalore Development Authority also executed the sale deed in favour of the said grantee vide sale deed dated 29.10.1988. 102
94. It is also not in dispute that the grantee created a trust with regard to the said property as per Ex.P.5 dated 12.10.1955 and subsequently, the said trust was cancelled as per the deed of cancellation of trust marked as Ex.P.4 dated 29.7.1981 and thus it is seen by the time the sale deed was executed in favour of the grantee, not only the trust was created, but, the same was also cancelled by the grantee and despite all those activities, the sale deed is executed in favour of the grantee only.
95. In this regard, learned Counsel for the plaintiff as discussed supra submitted that though the trust was created with the avowed object of carrying out the activities for which such grant was made as the same was not acted upon, he also deemed it fit to cancel the said trust so created.
96. In this regard, it is to be seen that if at all if the grantee violated any terms and conditions of the grant, the BDA would not have executed the sale deed 103 in his favour. Further it is also to be noted that though the executor of the trust cancelled the same by executing another registered deed of cancellation, the said cancellation is not questioned by any of the defendants or the surviving trustee.
97. On perusal of records, it is seen that Ex.P.1 is an agreement dated 19.11.1952 executed by His Holiness Jagadguru Urvakonda Karibasava Rajendra Swamiji executed in pursuance of the order of allotment bearing No. L-5877-80-I.J.B.5-52-82 dated 30th July 1952 in favour of Government of Mysore represented by Chairman the then CITB agreeing to abide certain conditions of allotment. Ex.P.2 is the absolute sale deed dated 29.10.1988 executed by the present BDA represented by its Secretary again in favour of His Holiness Jagadguru Urvakonda Sri Karibasava Rajendra Swamiji and a reference is made in the said sale deed with regard to the allotment letter dated 30.07.1952 referred to in Ex.P.1. It is also made clear in the said document that the purchaser is the absolute owner and 104 he was put into actual possession on 21.11.1952. However in the said sale deed, it is made clear that the building constructed shall be used only for habitation and shall not include any apartments to the building whether attached thereto or that used as a shop or Ware House or building in which manfacturing operations are conducted by Machanical Power or otherwise, in as much as it is stated that the building constructed should be used for residential purposes and cannot be used for any other commercial purposes. It is also made clear that the purchaser shall have no right to alienate the suit schedule property even after execution of the sale deed and the same shall be used for the purpose for which it is granted. Thus though it is an out right sale deed, the same is subject to the condition of the grant under which property was conveyed.
98. In this regard, it is to be seen that the land was so allotted under the Government Grants Act, 1898. Under Section 2 of the said Act the provision of 105 Transfer of Property Act, 1882 does not apply to the Government Grants and under Section 3, the grants to take effect accordingly. For the sake of convenience, Section 2 and 3 of the said Act is hereunder excerpted:
"2. Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed."
3. Government grants to take effect according to their tenor.- All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding."
99. In this contest, learned Counsel for the appellant relied upon a decision rendered in the case of M/s. HAJEE S.V.M. MOHAMED JAMALUDEEN BROS. & CO. -vs- GOVERNMENT OF TAMIL NADU (AIR 1997 SC 1368) wherein it is held as hereunder: 106
(A) Government Grants Act (15 of 1895), Ss.2, 3 - Scope - Grant - Terms of - Stands insulated from tentacles of any statutory law -
Rights, privilages and obligations under the grant - Are regulated by its term - Immaterial whether such terms are inconsistent with any other law.
The combined effect of Sections 2 and 3 of the Grants Act is that terms of any grant or terms of any transfer of land made by a government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the government to enforce any condition or limitation or restriction in all types of grants made by the government to any person. In other words, the rights, privilages and obligations of any grantee of the Government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law."
100. He also relied upon a decision rendered in the case of EXPRESS NEWSPAPERS PVT. LTD. -vs- UNION OF INDIA [AIR 1986 SC 872] wherein it is held as hereunder:
"(C) Government Grants Act (15 of 1895), S.3 - Grant of property by Govt. -
Nature of.
Per Sen.J. - The overriding effect of S.3 is that a grant of property by the Government partakes of the nature of law since it 107 overrides even legal provisions which are contrary to the tenor of the document."
101. Thus as per the sale deed as it is devoid of sale consideration and as it is granted under the Government Grants Act, though certain conditions are imposed, as per Ex.P-1 it is seen prima facie, the land is granted in favour of an individual.
102. Further it is also to be noted that the agreement executed by the Swamiji is executed in his individual capacity.
103. The plaintiffs have also got marked the copy of the possession certificate as Ex.P.3 on perusal of which it is seen that the suit schedule property was handed over to His Holiness Jagadguru Urvakonda Karibasava Rajendra Swamy, Bangalore. IN all transactions referred to supra, the grantee is not described as Urvakonda Mutt represented by Matadhipathi which would have been the proper description if at all if the property was allotted to mutt and not to an individual.
108
104. Further, it is not the case of the 4th defendant - Matadhipathi of Uravakonda Mutt that the office of the mutt is such that the Matadhipathi cannot hold any property in his individual name. Further, on perusal of Ex.P. 25 - the extract of the register of original petitions O.P.134/64 was disposed off by order dated 31.08.1967 setting-aside the scheme formulated earlier in O.S.21/39 on the file of the District Judge, Ananthapur certain observations are made and for the sake of convenience, the same is excerpted hereunder:
"O.P.134/64, 31-8-67:
That the scheme framed by the Hindu Religious and Charitable Endowments Board in 1939 and confirmed by the District Judge, Anantapur in O.S.No. 21/1939 be and hereby is set aside and the scheme mentioned hereunder be substituted:
That all the properties, endowments, moveable and immoveable shall be the property of the Matt and vest in the Matt and shall be administered in co-ordination with each other by the Matadhipathi or his Agent and the endowments department. The Matadhipathi be entitled to any Padakanukas or other gifts of property given to him in his personal capacity and such 'padakanukas' or gifts of property to belong to him alone and they shall not form part of the Math: (Emphasis supplied) 109 That there shall be a Manager appointed by the Commissioner Endowments Department in consultation with the Madathipathi, the manager shall be chosen from among the endowment employees or executive officers or otherwise appointed under Section 27 Charitable Endowments Act, 1966 and the rules framed thereunder:
That the manager shall be in charge of the Secular affairs of the matt and shall be under the administrative control of the Matadhipathi, But he is liable to be removed or dismissed by the Commissioner:
That the Matadhipati be entitled to appoint an Agent to look after the spiritual or religious affairs of the Matt and he does hold the office at the pleasure of the Matadhipathi."
and the said order has become conclusive.
105. Thus, it is seen that though Sri Karibasava Rajendra Swamiji was the Matadhipathi of Urvakonda Mutt, he had his individual right to acquire the properties and there was no bar for him to acquire any property in his individual capacity.
106. Coming to the object or the reason for which the site was granted in his individual capacity, it is seen that it is the case of the plaintiffs that the said Swamiji though a spiritual person, was a freedom fighter, he had 110 participated in Karnataka Ekikarana Movement and was a forefront leader in many works of social reforms and recognising the said involvement of the Swamiji, the then CITB granted a site to him in his individual capacity. In that regard, even the 4th defendant who is examined as DW2 during the course of his cross examination, has conceded to a suggestion that the late Swamiji was one of the leaders in Karnataka Ekikarana Movement, Late Swamiji was also a political leader. He was knowing late Swamiji since the year 1957 (at para.21).
107. Further, on perusal of Ex.D.27 got marked by 4th defendant, it is the licence issued for constructing the building in the schedule property and the same is issued in the individual name of the said Swamiji. Thus, if at all, if the property was to be allotted in favour of the Mutt, nothing prevented the then CITB to grant the property in the name of Urvakonda Mutt, Andhrapradesh represented by its Matadhipathi. 111
108. Thus, it is seen that the Swamiji was not prevented from possessing any property in his individual name, the original grant, the sale deed executed are all in the name of the Swamiji and as such, it cannot be said that the property was granted to the mutt at Ananthapur. Further as discussed supra one of the conditons of grant as evidenced by Ex.P.1 at clause 3 is that the building should be used as cultural and religious centre open to all communities and classes whereas the Urvakondamutt is exclusively meant for Virashiva Community not open to all communities and classes. Thus it is seen that the Matadhipathi of the Mutt was empowered to possess the properties individually and the plaintiffs proved that the suit schedule property was granted in favour of Swamiji individually.
Creation of Trust and Cancellation:--
109. With regard to the creation of the trust by the Swamiji and the cancellation of the trust, on perusal of Ex.P.5, it is seen that, it is a deed of Trust executed 112 by the Niranjan Jagadguru Karibasavarajendra Swamigalavaru and no where the Swamiji has stated that the property in dispute was granted in favour of the Mutt, but on the other hand he claims that it is on his own interest he sought allotment/grant of site from CITB and accordingly, the land was granted to him with certain conditions and in pursuance of it, he was of the view that a Trust has to be created for achieving the objectives of such grant. It is also mentioned in the trust deed that the possession of the vacant site was delivered to the trustees; a specific condition is also imposed in the trust deed that neither himself nor his successor has any right to dissolve the said trust. However, as per Ex.P.4, subsequently the executor of the trust deemed it fit to cancel the Anubhava Mantapa Trust, Bangalore setting forth the detailed reasons in the said document which is registered on 24.7.1981. Thus by the time the regular sale deed was executed in the year 1988, the original grantee had deemed it fit not only to create a trust on 12.10.1955 but also cancelled 113 the same subsequently on 29.7.1981. At this point it is to be noted that when cancellation of trust was effected none of the surviving trustees questioned the same.
110. In this regard, learned Senior Counsel Sri Yoganarasimha as discussed supra submitted that when once the trust is created, it cannot be cancelled for any reasons whatsoever except by way of 'Cy-pres' . In that regard it is to be seen that the 'Doctrine of Cy- pres', is a legal-french doctrine which means 'so near/close' and it means that 'as near as possible or as near as may be'. When the original objective of the settler or the testator became impossible, impracticable or illegal to perform, the 'cy-pres doctrine' follows. In this context apart from the objectives of the trust, if the settler himself had no valid right to transfer the property to a trust irrespective of whether the activities of the trust is hit by the 'doctrine of cy-pres' or otherwise, the trust itself becomes invalid. 114
111. In a decision rendered in the case of JAYAMMA VS. MARIABAI reported in AIR 2004 SC 3957 it is observed as hereunder:
"20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that same is invalid and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act."
Thus as the condition of grant included the clause of non-alienation, such a condition laidown in the grant partakes the nature of law, any violation there on, amounts to breach of contractual obligation and breech of statutory condition. Hence, the trust deed said to have been executed by Rajendra Swamigalu is contrary to the non-alienation clause and thus the same is void.
112. For the sake of conveyance Section 23 of Indian Contract Act is excerpeted hereunder:
"23. What consideration and objects are lawful, and what not.- the consideration or object of an agreement is lawful, unless -
it is forbidden by law; or 115 is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
Thus, Swamiji who was only a grant holder did not have any ownership right over the property so as to create any trust. Even the concept of feeding the grant by estoppel under Section 43 of the Transfer of Property Act does not apply to the facts of the present case as the trust deed is not executed for any consideration besides as per the recitals in the cancellation deed Ex.P.4, the trust never functioned.
113. Further, it is seen that though in the trust deed certain persons are nominated as the trustees, there is nothing on record to show that in fact the said trustees took possession of the property to act upon the works entrusted to them under the trust deed. On the other hand, as observed and submitted by the counsel 116 for plaintiff, even on the death of the trustees no new trustees are co-opted; on perusal of Ex.P.6 dated 03.02.1988 the assessment notice issued assessing the tax with regard to the schedule property is issued to the Swamiji and Ex.D.27 which is dated 30.04.1983 discloses that the Swamiji is recognized as the owner of the property and nothing is mentioned about the formation of the trust. Even Ex.D.28, the notice dated 23.7.1960 discloses that the same is given to the Swamiji in his individual capacity. Ex.D.29 is the tax paid receipt which also discloses that the tax was paid by the Swamiji. Thus in none of the transaction neither the trustees nor the trust finds a place and there is nothing on record to show that the trust was created and the trustees really acted upon the terms and conditions of the trust. As rightly submitted by the counsel for the plaintiff in O.S.962/1991 which is registered subsequent to allowing of Misc.653/90, the plaintiffs therein have not recognized any trust with regard to the suit schedule property.
117
114. Thus, as per the decisions relied upon by the learned counsel for the plaintiff/appellant, the terms and conditions of the grant as per Exs.P.1 and 2 are to be followed by the grantee without any variations. In the decision reported in M/s. HAJEE S.V.M. MOHAMED JAMALUDEEN BROS. & CO. -vs- GOVERNMENT OF TAMIL NADU (AIR 1997 SC 1368) and another decision rendered EXPRESS NEWSPAPERS PVT. LTD. -vs- UNION OF INDIA [AIR 1986 SC 872] grant of properties by the Government partakes the nature of land since over rides the legal provisions which are contrary to the tenor of the documents.
115. As rightly submitted by the learned counsel for the plaintiffs, the Swamiji executed the trust deed when he was not having any title over the property and was only an agreement holder. Further, the terms of grant did not stipulate for formation of any trust. Thus, the Swamiji had no power or authority to transfer his responsibility of complying with the terms and 118 conditions of the grant to any person either by way of forming the trust or otherwise and thus, the trust so created was void-abinitio.
116. Further, irrespective of the cancellation of the trust, as subsequently in the year 1988, the regular sale deed was executed in favour of the Swamiji himself in the year 1988 and not in favour of any trust, thus the said sale deed supercedes all other activities of the Swamiji in that regard and also it is seen that the Swamiji has not committed any violation of the terms of grant. Thus, basically as on the date of execution of the trust deed in the year 1955, the Swamiji had not derived any right or ownership or power to transfer the property in any manner to divest himself of the schedule property and hence such execution of the deed of trust is void ab-initio.
117. Thus, it is seen that the plaintiffs have established that the property was allotted in the individual name of the Swamiji and after his death, the 119 plaintiffs being his legal representatives are entitled to succeed to the estate of the Swamiji to carry out the objectives of the grant of the property; the trust deed executed by the Swamiji was void abinitio and they are entitled for the relief claimed by them in this suit. Apportionment of Land in favour of Defendant No.1
- Akkamahadevi Seva Samaj:-
118. With regard to the grant of land in favour of Akamahadevi Seva Samaja by the Chairman of CITB as per the agreement dated 21.04.1961, on perusal of the said agreement marked as Ex.D.5, it is seen that the reference is made to the grant of 1952. However, it is stated that the said grant was made to Anubhava Mantapa Trust, but under the said grant dated 30.07.1952 as discussed supra, it is seen that the same pertains to the order in Ex.P.1 the land was not allotted to any trust, it was only allotted to Sri Karibasava Rajendra Mahaswamigalu. Basically, it is seen that Ex.D.5 has proceeded on a wrong basis and 120 presumption. Further, it is seen that though the property was said to have been allotted in favour of Akkamahadevi Seva Samaja. though such allotment was made in the year 1961, till now no regular sale deed is executed in favour of Akkamahadevi Seva Samaja. Likewise the encumberance certificate got marked as Ex.P.13 also does not mention any such division of the property. In the circumstances, mere allotment and that too disclosing a wrong grant by misusing the name of Anubhava Mantapa Trust will not convey right, title or interest what-so-ever over the said property to Akkamahadevi Seva Samaja. Thus, the said allotment in favour of Akkamahadevi Seva Samaja will not in any way curtail the right of the Swamiji in the suit schedule property in toto and more so in the light of execution of sale deed to the entire extent in favour of Swamiji in the year 1988.
121Right of 5th defendant in the Suit Schedule Property:-
119. Learned counsel appearing for the 5th defendant i.e., Deputy Commissioner of Andhra Pradesh, Endowment Department, Karnool submitted that whatever the 4th respondent - Swamiji acquired the same becomes the property of the mutt; since the Swamiji was treated as an ascetic, died as an aesthetic, recognized as an ascetic, all the properties of the swamiji vested with the mutt. As discussed supra though Matadhipathi was appointed by the Endowment Department of the Government of Andhra Pradesh, as right was given to him/Matadhipathi to possess his own individual properties also, as discussed supra, it cannot be said that the property so acquired by the Matadhipathi in his individual name should vest with the Government.
120. Learned counsel appearing for 5th defendant relied upon the decision relied upon the decision in SAMIT PANI BRAHMACHARY AND OTHERS vs 122 MAYAPUR CHAITANYA MATH AND OTHERS reported in AIR 1999 Calcutta 132 wherein it is observed as hereunder:
"(B) Hindu Law - Sudra by birth becoming Sanyasi - Succession - Rigour of orthodox view relaxed - Such person dedicating his property to diety - Ordinary rule of succession inapplicable - His heirs cannot claim any rights."
121. In the instant case, there is no evidence to show that the said Swamiji had devoted his property to the deity, as such the said decision is not applicable the facts of this case.
122. Learned Counsel relied upon the decision rendered in SITAL DAS, vs. SANT RAM AND OTHERS, reported in AIR 1954 SC 606 wherein it is observed has hereunder:
(e) Hindu Law - Ascetic - Effect.
"The entrance into a religious order generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say, a spiritual son of the latter. The other disciples of his guru are regarded as his 123 brothers, while the co-disciples of his Guru are looked upon as unless and in this way a spiritual family is established on the analogy of a natural family."
123. However in the instant case as discussed supra, defendants failed to prove as to whether the Swamiji except getting the name of Swamiji and Matadhipathi, had he really under gone any rituals to enter into the order of ascetic and as discussed supra the defendant has failed to produce any evidence in that regard. Thus for the reasons discussed earlier, the said decision is not applicable to the facts and circumstances of the present case.
124. He also relied upon another decision reported in Yellappa and others Vs. Sri Gurusidda Desikendra Swamigalu of the Thippasetty Mutt, Bangalore, reported in XVIII THE MYSORE LAW JOURNAL REPORTS page 429 wherein it is observed as hereunder:
"The Swami of mutt is not a trustee as regards the properties of the mutt. His position is akin to that of a manager or 124 custodian except in respect of property which is specifically entrusted to him for a particular purpose."
125. In the instant case it is not the property of Mutt which is involved, it is the individual property of the Swamiji himself as discussed supra and as such the said decision is not squarely applicable to the facts of this case. Thus as discussed supra, the individual property of the Matadhipathi cannot be pooled to the property of the Mutt.
Res-judicata:-
126. With regard to the question of the suit being hit by principles of resjudicata, it is seen that as held by the trial Court, the defendants have not filed copy of the plaint, written statement and mere production of the order sheet in O.S.260/74 marked as Ex.P.39 by itself is not sufficient to hold that the causes of action in the present suit and the said OS 260/94 was one and the same. Further, it is seen that the said O.S.260/94 was not decided on merits. Similarly, 125 O.S.4012/85 was filed by the Swamiji against the defendants seeking declaration that the Swamiji was the owner of the said property and declaration that the trust deed dated 12.10.1955 was illegal and void. In that regard, the defendants have got marked the certified copy of the order sheet as Ex.D.17. On perusal of Ex.D.17, it is seen that the said suit was dismissed for non-prosecution. In the circumstances, as both the suits were not heard and finally decided by Court on merits and also it is not clear as to whether the cause of action in the said two suits and the cause of action in the present suit is one and the same, it is seen that the said disposal of two suits does not operate as resjudicata.
Valuation of the Suit and Court Fee payable thereon:-
127. With regard to the valuation of the suit and the Court fee paid thereon, it is seen that the plaintiffs have valued the suit under Section 24(d) of the 126 Karnataka Court Fee and Suits Valuation Act at Rs.2,02,962/- and paid Court fee of Rs.13,858/- and it is contended by the defendants that the market value of the property is nearly 2 crores 50 lakhs and Rs.3,20,000/- is the court fee payable on the plaint. The plaintiffs in the valuation slip filed along with the plaint has valued the suit as here under:
(i) The plaintiff has filed the present suit against the defendants for declaration simplicitor that the plaintiff is the owner of the suit schedule property to put to use it for which it was allotted to Sri Jagadguru Karibasava Rajendra Swamiji, without any consequential relief or for possession and therefore Sec.24(d) of the K.C.F. & S.C. Act is attracted.
(ii) Since the suit schedule property suffers from restrictions imposed by the B.D.A. not to alienate the same, the subject mater of the suit is not capable of valuation and therefore the said relief sought for is valued at 12½ times the revenue payable as per the Assessment Register. The suit property has two municipal numbers i.e., 20-19 and 19-20 and the total revenue payable in respect thereof comes to Rs.16,237/-, twelve and half times of which comes to Rs.2,02,962/- and therefore a court fee of Rs.13,833/- is paid on the plaint for the said relief of declaration.127
(iii) The relief sought for under prayer
(b) is the declaration that all or any transaction, dealing entered into or carried on by the defendants and any charge whatsoever created by them on the suit property or any portion thereof is illegal, ineffective and does not exist in the eye of law and this relief is valued at Rs.1000/- as provided under S.24(d) of the said act and a court fee of Rs.25/- is paid thereon accordingly. Thus, a total court fee of Rs.13,858/- is paid on the plaint and the same is sufficient".
128. For the sake of convenience, Section 24 of the said Act is excerpted hereunder:
24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25.-
(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one thousand whichever is higher;
(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher;128
(c) xxxxx (omitted)
(d)in other cases, whether the subject matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher."
129. The trial Court considering the nature of relief sought, as the plaintiffs have not sought declaration and possession of the suit schedule property has held that clause (a) of Section 24 is not attracted. Likewise, as no consequential relief of injunction is sought in respect of the suit property or against any defendants therein, clause (b) of section 24 is also not attracted and thus, as the relief granted by the plaintiff is declaration simplicitor neither asked for possession nor sought any order of injunction, the over all relief valued at 12½ times the annual value of the tax payable to the corporation in respect of the suit property as observed by the trial Court is proper and thus, the observation of the trial Court that the plaintiffs have established their case that the valuation made by them 129 under Section 24(d) of the Act, is correct and the Court fee paid thereon is sufficient and proper, and the same does not call for any interference.
130. Thus the plaintiffs proved that the schedule property was granted in favour of Swamiji in his individual capacity, the trust created by Swamiji was void abinitio and thus irrespective of whether the revocation of the same was proper or not, the creation of the trust itself was invalid.
131. Further, the plaintiffs have proved that the execution of the sale deed in the year 1988 superceded all other activities of the Swamiji. Likewise as observed supra the present suit is not hit by the principles of resjudicata and the court fee paid is also sufficient and the suit is valued properly. Hence, the following: 130
ORDER RFA No.1713/2005 is allowed setting aside the judgment and decree dated 09.09.2005 passed in O.S.No.8150/2002 by the Principal, City Civil and Session Judge, Bangalore, except the findings given on issue Nos.9, 11 and 12 and the said suit is decreed as prayed for by the plaintiffs.
Consequently, RFA Crob.No.39/2005 and RFA Crob.No.2/2006 are hereby dismissed.
Parties to bear their own costs.
Sd/-
JUDGE RV/SK/brn/Nsu/-