Karnataka High Court
Mr Ramachandrappa vs Mr Krishnappa on 12 October, 2018
Author: K.N.Phaneendra
Bench: K N Phaneendra
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF OCTOBER 2018
BEFORE
THE HON'BLE MR JUSTICE K N PHANEENDRA
MISCELLANEOUS FIRST APPEAL No.6760/2018(CPC)
C/W
MISCELLANEOUS FIRST APPEAL No.6707/2018(CPC)
BETWEEN:
Mr. Ramachandrappa
S/o. Krishnappa
Aged about 61 years
Residing at No.2, 1st Cross
Dwarakanagar
B.S.K. III Stage
Bangalore - 560 085.
...Appellant
(Common in both appeals)
(By Sri. D.R. Ravishankar, Advocate for Lex Nexus)
AND
1. Mr. Krishnappa
S/o. Late Ramadasappa
Aged about 88 years
2. Mrs. Akkayamma
W/o. Krishnappa
Aged about 75 years
2
Both are residing at No.226
9th Main Road, Nagendra Block
Banashankari 1st Stage
Bangalore - 560 050.
3. Mr. K. Ramdas
S/o. Krishnappa
Aged about 49 years
R/at No.1044, 13th Main
Srinagar, Bangalore - 50.
4. Mr. K. Vijayanarasimha @ Narasimha
S/o. Krishnappa
Aged about 47 years
R/at No. 22, 9th Main Road
Moyenvilla, Moyenvilla Road
Langford Town
Bangalore - 560 025.
5. Smt. Mangala Gowri
D/o. Krishnappa
Aged about 59 years
6. Smt. Shanthamma
D/o. Krishnappa
Aged about 55 years
7. Smt. Padma Somashekar
D/o. Krishnappa
Aged about 45 years
8. Smt. Geetha
D/o. Krishnappa
Aged about 44 years
Respondents No. 5 to 8 are all
Residing at No. 226
3
9th Main Road, Nagendra Block
Banashankari 1st Stage,
Bangalore - 560 050. ... Respondents
(Common in both appeals)
(By Sri. Jayakumar S. Patil, Sr. Counsel for Smt.
Rajashree B., Advocate for R.1 to R.3, R.5 to R.8.
Notice to R.4 dispensed with vide order dt. 12.10.2018)
These appeals are filed under Order 43 Rule 1(r) of
the CPC, against the order dated 30.06.2018 passed on
IA No. 2 and IA No.3 respectively in O.S. No. 3258/2017
on the file of the LXVI Additional City Civil & Sessions
Judge, (CCH-67), Bengaluru, rejecting IA No.1 and IA
No. 3 respectively filed under Order 39 Rule 1 and 2
read with Sec. 151 of CPC.
These appeals coming on for admission this day,
the Court delivered the following:
JUDGMENT
Heard learned counsel for the appellants and respondents 1-3, 5-8. Notice to be issued to other respondents is dispensed with.
2. The plaintiff filed a suit for declaration that defendant no.1 - Mr.Krishnappa nominating defendants 5 to 8 as trustees of the trust by name "Sudarshan Trust" is null and void and also for a direction to remove 4 defendants 5 to 8 as trustees from the said trust. Plaintiff also sought for permanent injunction restraining the defendants or their agents from alienating or encumbering the suit schedule properties and for rendering accounts and other reliefs.
3. There are two suit schedule properties which are referred to as, "schedule property" and schedule 'A' property in the plaint. The plaintiff has filed the suit on various grounds that, the contents of the trust deed with regard to nomination of the trustees or electing of the trustees, conducting of the meeting of the trust and also nominating defendants 5 to 8 as trustees have been utterly violated by the defendants. Further, it is contended that, the defendants are also interested with 'A' schedule property to the same trust and to deal with the same with reference to some other temple. With this background, it is contended that the defendants are contemplating to alienate with suit schedule 5 property. Therefore, it prompted the plaintiff to file applications - I.A.Nos.2 and 3 seeking an order of the Court restraining the defendants from acting or participating as trustees and to conduct any meetings nor participate in the said trust in any manner. I.A.No.3 was filed restraining the defendants from alienating or encumbering or creating any charge on the suit schedule properties pending disposal of the suit.
The defendants also infact after appearance filed an application under Order XXXIX Rule 4 CPC for vacating the status-quo order passed by the trial Court at the initial stages.
The said applications were heard by the learned trial Judge and I.A.Nos.1 and 2 were dismissed by the trial Court and consequently, the IA filed by the defendant i.e., I.A. X was allowed. Against the order passed by the trial Court on I.A.Nos.2 and 3, the above said appeals have been preferred before this Court. 6
4. After hearing both the counsel and after careful perusal of the entire materials on record, it is an undisputed fact that defendant no.1 has nominated defendants 5 to 8 as trustees to the said trust, though the trust deed says that it should comprise only 5 trustees. Defendants 5 to 8 are none other than the daughters of defendant no.1. They are all one family members. Even there is some procedural irregularity as pointed out by the learned counsel for the appellants nevertheless, the constitution of the trust for the purpose of proceeding with the trust activities is not disputed. Therefore, at this stage rightly or wrongly some trustees are already there and carrying out the activities of the trust. It goes without saying that, once they are construed as members of the trust, they are accountable and they have to give accounts with regard to the affairs of the trust. Therefore, at this stage if either the trustees are removed or if they are restrained from participating and functioning as trustees, it would 7 virtually create a standstill of the trust itself. Therefore, the trial Court has observed that all these points can be taken into consideration by the trial Court at the time of disposal of the suit itself on merits. Therefore, I do not find any strong reason so far as that aspect is concerned to interfere with the orders passed by the trial Court.
5. So far as the second aspect is concerned, learned counsel for the respondents straight away and fairly conceded that, the defendants are not contemplating to alienate the suit schedule property i.e., property bearing No.A/1, Sri Venugopala Swamy Temple Street, Dwarakanagar, BSK III Stage, Bengaluru-560085.
6. So far as suit schedule "A" property is concerned, learned counsel for the respondents, submit that there is no sufficient pleading and documents produced before the Court show that this suit schedule 8 "A" property in any manner pertains to the trust or there are any documents to show that, the said trust has been dealing with this matter and dealing with the affairs of the said schedule property.
7. Learned counsel for the appellants submit that, though there is some pleading, that may not be fully sufficient to show that the suit schedule "A" property is also the trust property itself. Under the above said circumstances, I do not find any strong reasons to interfere with the orders in rejecting the prayer so far as schedule 'A' property is concerned. In view of the above and the said submissions made by the defendants counsel, in my opinion a partial modification of the order on I.A.No.3 is required to be made.
8. With these observations, the following is passed:
9
ORDER The order passed on I.A.3 is hereby modified. Consequently, the defendants are hereby restrained from alienating the schedule property i.e., immovable property bearing No.A/1 situated at Venugopala Temple Street, Dwarakanagar, Banashankari III Stage, measuring 100 feet x 46 feet with specific boundaries as shown in the schedule.
So far as the prayer with respect to suit "A" schedule property is concerned, rejection of the same is hereby confirmed.
With these observations, the trial Court is hereby directed to expedite the trial itself and dispose of the suit on merits as expeditiously as possible and preferably within one year from the date of receipt of a copy of this order.
Both counsel are hereby directed to co-operate with the trial Court for disposal of the suit. 10
The appellants are also hereby permitted to make necessary application, if advised, if they have sufficient materials so far as suit "A" schedule property is concerned before the Court.
If any such application is made, the trial Court has to provide opportunity to both the parties and pass appropriate orders in accordance with law.
With the above said observations, appeals are disposed of.
Sd/-
JUDGE Brn