Karnataka High Court
Yelandau Arasikere Deshikendra ... vs Gangadharaiah S/O Channabasavaiah, ... on 18 July, 2007
Equivalent citations: AIR 2007 (NOC) 2439 (KAR.) = 2007 (5) AIR KAR R 565, 2007 (5) AIR KAR R 565
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
Page 1844
1. The appellant herein had filed a suit in O.S.No. 68/1987 on the file of the learned Civil Judge, Tarikere, praying for declaration and possession of the suit properties and the said suit came to be dismissed by the trial court and the appeal preferred in. R.A.No. 12/1993 on the file of the learned Addl. District Judge, Chickamagalur, also was dismissed and thus this second appeal has arisen.
2. Brief facts necessary for the disposal of this second appeal are to the effect that the appellant herein being Yelanadu Arasikere Deshikendra Samsthana filed a suit before the trial court by contending that the suit properties belonged to the appellant Samsthana as the said properties were under the control and management of late Sri Basavaraj Deshikendra Swamiji of the appellant Samsthana following a Trust Deed executed by one Gowramma on 1.7.1935. By which deed, the said Gowramma had entrusted the suit properties with the then head of the Samsthana, Basavaraj Deshikendra Swamiji, with the object of utilising the said properties for the welfare of the Veerashaiva community by spending the properties and its income for providing hostel facilities to poor students and providing food or even stipend/freeship to the poor students of Veerashaiva community and the object of creating the Trust was the upliftment and education of the people belonging to Veerashaiva community.
3. Thus, by the said Trust Deed, above said Gowramma divested herself of all the properties mentioned therein which included the suit properties. Basavaraj Deshikendra Swamiji passed away on 16.8.1970 without appointing any successor to him and thereafter, said Gowramma bequeathed suit item No. 1 in favour of her sister's daughter i.e., the second defendant, and subsequently, defendants-1 and 2 sold suit item Nos. 2 to 4 in favour of the third defendant. On coming to know of the sale deed executed by defendants-1 and 2 in favour of the third defendant on 19.7.1985, the appellant Samathana filed the suit by contending that in respect of the suit properties, the appellant Samsthana has got right, title and interest and, being the absolute owner of the suit properties, the relief for declaration and possession was thus sought.
Page 1845
4. The defendants, who are the respondents herein, contested the said suit by taking up the stand that Gawramma had entrusted the properties mentioned in the Trust Deed not in favour of the appellant Samsthana, but in favour of Basavaraj Deshikendra Swamiji and it was in his capacity as an individual that the above said Basavaraj Deshikendra Swamiji took the properties under the Trust Deed and it was never the intention on the part of Gowramma that the properties which were the subject matter of the Trust Deed were to be the properties of the appellant Samsthana. Therefore, the appellant had no right, title or interest in the suit properties and, as such, the suit of the plaintiff was liable to be dismissed for the aforesaid reasons. It was also contended in the written statement filed, at paragraph-20, that the document dated 1.7.1935 executed by Smt. Gowramma was in the nature of a general power of attorney given to Basavaraj Deshikendra, Swamiji and following the death of said Basavaraj Deshikendra Swamiji, the properties reverted back to the settler i.e., Gowramma, and as such, the subsequent transactions are perfectly legal and no right or interest was vested with the appellant Samsthana to make claim over the suit schedule properties.
5. Based on the pleadings of the parties, the learned trial judge framed as many as 7 issues out of which issue Nos. 1 to 3 were answered in favour of the appellant herein, but the subsequent issues were held against the appellant. The learned trial judge, though come to the conclusion while answering issue No. 1 that the deed under which Gowramma had entrusted the properties to Basavaraj Deshikendra Swamiji had to be held as Trust Deed, yet, as the said Basavaraj Deshikendra Swamiji was the sole trustee, following his death and in the absence of the Trust Deed mentioning as to who will succeed to the shoes of the sole trustee, the trial court came to the conclusion that the suit properties will revert back to the original settler i.e., Gowramma, or in the alternative, to the L.Rs. of Sri Basavaraj Deshikendra Swamiji, but not to the appellant Samsthana.
6. As the appellant herein was not the legal successor to Sri Basavaraj Deshikendra Swamiji, the trial court recorded a finding that the appellant herein has no right to claim the suit schedule properties nor can the appellant be declared as the owner of the suit schedule properties. Ultimately, the suit of the appellant came to be dismissed. An appeal was preferred against the said judgment and decree passed by the trial court and the lower appellate court also dismissed the appeal but, in the course of its judgment, the lower appellate court did not agree with the finding recorded by the trial court on issue No. 1 that the deed under which Gowramma had entrusted the property to Sri Basavaraj Deshikendra Swamiji was a Trust Deed but, on the other hand, the lower appellate court was of the opinion that the said deed was a general power of attorney and, as such, following the death of Sri Basavaraj Deshikendra Swamiji, the properties reverted back to Gowramma and, therefore, the subsequent transactions leading to the properties being sold to several persons cannot be found fault with as the appellant herein did not establish that it was the owner of the suit schedule properties.
Page 1846
7. In coming to the conclusion that the deed in question was a general power of attorney but not a Trust Deed, the lower appellate court virtually dissected the entire contents of the document Ex.P-2 and by interpreting the contents of the said document, the lower appellate court held that the entire case of the parties rested on the interpretation of Ex.P-2 and as the lower appellate court had come to the definite conclusion that the said document Ex.P-2 was only a general power of attorney and not a Trust Deed, the appeal preferred by the appellant herein came to be dismissed. At the same time, the finding recorded by the trial court on issue No. 1 was also set aside.
8. Aggrieved by the dismissal of the suit by the trial court as well as the appeal preferred before the lower appellate court, the plaintiff has preferred this second appeal.
9. At the stage of admission of this appeal, this Court had framed the following substantial questions of law:
i) Whether the courts below are justified in dismissing the suit without properly considering the effect of Ex.P-2 the registered document dated 1.7.1935 under which the property in question has been dedicated to the Mutt and in the name of the late Swamiji and whether the same could be endowed to the benefit of the Mutt?
ii) Whether the lower appellate court was justified in holding that under Ex.P-2 the properties were given in the personal name of the late Swamiji and not to the Mutt in question?
iii) Whether the suit could be dismissed in view of Section 31 of the Specific Relief Act?
10. I have heard the learned Counsel Sri Ashok Haranahalli for the appellant Samsthana, and Sri Yoganarasimha, learned senior counsel, for the respondents and I have carefully perused the entire material on record, which is placed in the form of paper book.
11. The learned Counsel for the appellant Samsthana submitted that as the entire case of the parties rests on the interpretation of the deed, which is marked as Ex.P-2 before the trial court, and this Court will have to decide as to whether the said deed EX.P-2 executed on 1.7.1935 by Gowramma in favour of late Basavaraj Deshikendra Swamiji was in the nature of a Trust Deed with the sole object of achieving the objects mentioned therein and thus in a sense, it is an endowment. Referring to the contents of Ex.P-2, it was submitted that a plain reading of the said document would leave no doubt in anyone's mind as to the nature of the trust created by late Gowramma. Although the Trust Deed only mentions the name of late Sri Basavaraj Deshikendra Swamiji as the person who will have to ensure the objects mentioned therein being achieved, yet, the spirit of the said document is such that late Gowramma really intended that the properties mentioned therein will have to be used for the welfare of the Veerashaiva community by providing hostel facilities to poor students or providing food and scholarship to the students and all these will have to be Page 1847 done in order to ensure educational upliftment of the students of the said community.
12. Further, referring to the status of Basavaraj Deshikendra Swamiji, who happened to be the Guru of the appellant Samsthana at that time, it was submitted that although the Trust Deed only mentioned the name of Sri Basavaraj Deshikendra Swamiji in his individual capacity, yet, if one reads the entire document, the inference that the said Trust Deed was brought into existence only in order to provide the poor students of the Veerashaiva community various benefits, has to be drawn leading to the conclusion that the settler i.e., Gowramma had realty intended that her properties should be taken care of by the appellant Math, but through the head of the Math i.e., Basavaraj Deshikendra Swamiji.
13. Thus interpreting the document Ex.P-2, it is submitted by the learned Counsel for the appellant that both the courts below were clearly in error in misconstruing the very purpose of the Trust Deed and the courts below committed serious error in observing that Gowramma had entrusted the properties only to an individual i.e., Sri Basavaraj Deshikendra Swamiji, and not to the appellant Samsthana and, as such, the view taken by the courts below that the appellant Samsthana cannot be construed as the absolute owner of the suit properties is totally against the very spirit of the document Ex.P-2.
14. It was also submitted by the learned Counsel for the appellant Samsthana that as Gowramma had divested herself of all her rights over the properties mentioned in Ex.P-2, following the death of Sri Basavaraj Deshikendra Swamiji, the properties will not revert back to Gowramma or anyone else, but they continue to remain as the Trust properties and, therefore, the findings of troth the courts below on this aspect are totally against the well settled position in law. In support of his submissions, the learned Counsel for the appellant placed reliance on the decisions reported in A.I.R. 1957 S.C. 133, A.I.R. 1980 S.C. 707, A.I.R. 2005 S.C. 1588, (2006)7 S.C.C. 490 and A.I.R. 1966 S.C. 1603.
15. The point which the learned Counsel tried to drive home by referring to the above decisions is that when the properties are dedicated for a particular purpose, the property itself, upon which the purpose is impressed, is raised to the category of a jurisdic person so that the property, which is dedicated would vest in the person so created and that a Math is under Hindu Law a jurisdic person in the same manner as temple where an idol is installed.
16. Therefore, in view of the settled position in law as has been laid down in the aforementioned decisions, it is submitted that the lower appellate court as well as the trial court clearly erred in not properly interpreting the contents of Ex.P-2, the. Trust Deed. Once the said document Ex.P-2 is construed as a Trust Deed executed by Gowramma, the properties in question vest with the appellant Samsthana though at the relevant point of time they were entrusted to the then head of the Math Sri Basavaraj Page 1848 Deshikendra Swamiji and consequently, the subsequent transactions will have no validity because, as Gowramma had divested of all her rights in the properties under Ex.P-2, neither she nor anyone else could derive any better title or interest over the said properties. As such, the findings recorded by both the courts below are perverse in nature and hence interference is necessitated by this Court in this second appeal.
17. The learned senior counsel for the respondents, on the other hand, submitted that, no doubt the entire case of the parties rests on interpretation of Ex.P-2 but, at the same time, it is his submission that Gowramma, at no point of time, did ever conceive of the appellant herein becoming the owner of the properties mentioned in the deed in question. A careful reading of the contents of Ex.P-2 will go to convince anyone that it was more in the nature of a general power of attorney inasmuch as though Gowramma had assigned the properties in favour of Sri Basavaraj Deshikendra Swamiji, she had not divested herself of all her rights in toto. In other words, Gowramma had retained absolute ownership over the properties, which were the subject matter of the deed Ex.P-2 and, therefore, following the death of the above said Basavaraj Deshikendra Swamiji, Gowramma had every right over the properties in question and the subsequent conduct of the parties will also go to indicate that Gowramma never intended that the properties should go to the appellant. Samsthana and had that been her intention, she would not have failed to mention the Math itself in the deed Ex.P-2.
18. The very mention of the name of Basavaraj Deshikendra Swamiji as the person in whom the properties have been vested for the purpose of achieving the objects mentioned in the deed, it is submitted, makes it clear that the appellant Math was never treated as the owner of the suit properties. The appellant Math also cannot be treated as a trustee for the very same reasons. Referring to the subsequent transactions leading to Gowramma transferring certain items of the properties in favour of the third defendant, it is submitted that the very said act on the part of Gowramma also is a proof to the contention raised by the defendants before the courts below, that Gowramma had never entertained any thought at any point of time that the properties in question should be construed as the properties absolutely owned by the appellant Samsthana.
19. Another submission made by the learned senior counsel is that when the appellant never became the owner of the suit properties at any point of time, the question of the appellant deriving any title under Ex.P-2 will not arise. Short of ownership right being given, Gowramma had given all other rights to Basavaraj Deshikendra Swamiji and following the death of said Basavaraj Deshikendra Swamiji, the above said Gowramma resumed the properties and as, at the relevant point of time, defendant-4 was also in possession of the suit properties, the transaction that led to the property being subsequently transferred to defendant-3 also had the said defendant-4 joining Gowramma in transferring of the said properties. Therefore, it cannot be said that the suit properties in question became the properties of the appellant Page 1849 Samsthana. It was also contended that the nature of the document Ex.P-2 was not an absolute irrevocable power of attorney because, Gowramma had not divested of all her rights in the suit properties in favour of Basavaraj Deshikendra Swamiji.
20. Therefore, referring to the reasoning given by the trial court as well as the lower appellate courts, it was submitted that though both the courts have the document Ex.P-2 from different angles, yet, shorn of unnecessary details, the courts below, in effect, have come to the conclusion that the appellant herein was never the owner of the suit properties nor Gowramma had entrusted the properties mentioned in the deed Ex.P-2 to the Math as such. Hence interference is not called for against the judgment and decree passed by the lower appellate court as well as that of the trial court.
21. In the light of the submissions made as above and also taking note of the decisions cited and after going through the material placed, I now proceed to answer the substantial questions of law raised for consideration.
22. It is the specific stand of the appellant that Ex.P2 is in the nature of a Trust Deed and therefore, Gouramma having divested herself of all the rights in respect of the properties mentioned in the said deed, the appellant must therefore is entitled to the said properties and as such, the subsequent transaction by which the 33rd respondent and the respondents 1 and 2 became the owners of the respective properties will not arise and once, document Ex.P2 is held to be Trust Deed, the subsequent transaction will have no sanctity in the eye of law nor those transactions be valid in law. As the entire case rests on Ex.P2, it is necessary to find out as to the nature of said document, but before the said exercise is done, it is necessary to bear in view the position in law as regards documents of such nature.
23. In the case of State of West Bengal and Ors. v. Sri Sri Lakshmi Janardan Thakur and Ors. (2006)7 Supreme Court Cases 490, the Apex Court has observed at paragraph 13 as follows:
In B.K. Mukherjea: The Hindu Law of Religious and Charitable Trust, Tagore Law Lectures the distinction between a public and private charitable trust has been set out in the following terms:
Distinction between public and private purpose-Gifts for individual. The line of distinction between a public purpose and a purpose which, is not public is very thin and technical and is difficult of an easy definition. Tudor in the 5th Edn. of his book Tudor on Charities thus summed up the principles deducible from the cases on the subject:
If the intention of donor is merely to benefit specific individuals, the gift is not charitable, even though the motive of the gift may be to relieve their poverty or accomplish some other purpose with reference to those particular individuals which would be charitable if not so confined; on the other hand, if the donor's object is to accomplish the abstract purpose of relieving poverty, advancing education or religion or other purpose charitable within the meaning of the Statute of Elizabeth, without giving to any particular Page 1850 individual the right to claim the funds, the gift is charitable.
Further in order to ascertain whether trust is a private one or not the factors that are relevant have also been stated in paragraph 15 of the said judgment and the said footers are the following:
In order to ascertain whether a trust is private, the following factors are relevant:
1) If the beneficiaries are ascertained individuals.
2) If the grant has been made in favour of an individual and not in favour of a deity.
3) The temple is situated within the campus of the residence of the donor.
4) If the revenue records or entries suggest the land being in possession of art individual and not in the deity. On the other hand an inference can be drawn that the temple along with the properties attached to it is a public trust:
1) If the public visit, the temple as of right.
2) If the endowment is in the name of the diety
3) The beneficiaries are the public.
4) If the management is made through the agency of the public or the accounts of the temple are being scrutinised by the public.
In the case of Thayarammal(dead) by LR v. Kanakammal and Ors. AIR 2006 SUPREME COURT 1588, dealing with the question of vesting of property in a juristic person, the Apex Court has made the following observations at paragraph-16 thus:
A religious endowment does not create title in respect of the property dedicated in anybody's favour. A property dedicated for religious or charitable purpose for which the owner of the property or the donor has indicated no Administrator or Manager becomes res nullius which the learned Author in the Book(supra) explains as property belonging to nobody. Such a property dedicated for general public use is itself raised to the category of a juristic person. Learned author at page 35 of his commentary explains how such a property vest in the property itself as a juristic person. In Manohar Ganesh v. Lakhmiram ILR 12 Bombay 247, it is held that 'the Hindu law like the Roman Law and those derived from it recognizes not only corporate bodies with rights or property vested in the corporation apart from its individual members, but also juridical persons and subjects called foundations. The religious institutions like mutts and other establishments obviously answer to the description of foundations in Roman law. The idea is the same, namely when property is dedicated for a particular purpose, the property itself upon which the purpose is impressed, is raised to the category of a juristic person so that the property which is dedicated would vest in the person so created." And so it has been held in Krishna Singh v. Mathura Ahir that a mutt is under the Hindu law a juristic person in the same Page 1851 manner as a temple where an idol is installed.
In the case of Deoki Nandan v. Murlidhar and Ors. , speaking for the Apex Court His Lordship Justice Venkatarama Ayyar observed in paragraph 7 of the said judgment as follows:
When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only he the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only regarded as public, intended to benefit the general body of worshippers.
Whether the property belongs to the mutt or to the head of the mutt was the question considered by the Apex Court in the case of Krishna Singh v. Mathura Ahir and Ors. AIR 1980 SC 707 and the said question was answered in paragraphs 20 and 21 thus.
The property belonging to a math is in fact attached to the office of the mahant, and passed by inheritance to no one who does not fill the office. The head of a math, as such, is not a trustee in the sense in which that term is generally understood, hut in legal contemplation he has an estate for life in its permanent endowments and an absolute property in the income derived from the offerings of his followers, subject only to the burden of maintaining the institution. He is hound to spend a large part of the income derived from the offerings of his followers an charitable or religious objects. The word 'the burden of maintaining the institution' must be understood to include the maintenance of the math, the support of its head and his disciples and the performance of the religious and other charities in connection with it, in accordance with usage: See Sammantha Padara v. Sellappachety (1879) ILR 2 Mad 173: Giyana Sambanda Pandara Sannadhi v. Kandasami Tambiran (1887) ILR 10 Mad 375; Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Sway (1904) ILR 27 Mad 435; Kailasam Pillai v. Nataraja Thambiran (1910) ILR 33 Mad 265; Ram Prakash Das v. Anand Das (1916) 43 Ind App 73 [PETITIONER CORPORATION] and Vidya Varuthi Tirtha v. Baluswami Iyer LR (1921) 48 Ind App 302(PC).
From, these principles, it will be sufficiently clear that a math is an institutional sanctum presided over by a superior who combines in Page 1852 himself the dual office of being the religions or spiritual head of the particular cult or religious fraternity, and of the manager of the secular properties of the institution of the math. In the instant case, evidence on record sufficiently establishes that a math came to be established at Garwaghat and the building known as 'Bangla Kuti' and certain other buildings, including the house in suit constituted the endowment of the math itself.
In the case of Saragadeva Periya matam and Anr. v. Ramaswami Goundar(dead) by legal representatives , it was held by the Apex Court that a Matadipathi is the manager and custodian of the institution and the office carries with it, right to manage and possess endowed property on behalf of math and the right to sue on his behalf for protection of those properties.
24. Keeping the above principles in the background, if we examine the contents of the document Ex.P2, we notice that in the said document, which is the registered trust deed dated 1.7.1935, the settler i.e., Gouramma has stated that the trust deed is executed by her in favour of the Math Pattadyaksha namely Shri Basavaraj Deshikendra Swamiji and being the absolute owner of the properties mentioned in the said deed, the said Gouramma, with the desire to fulfil the wishes of her late husband namely to do a permanent dharmakarya and therefore in order to fulfil the said 'sankalpa' of her late husband and also to ensure that the fame of her late husband remains permanently forever, title Trust Deed in question has been executed by the said Gouramma by handing over the custody of the property to the above said Shri Basavaraj Deshikendra Swamiji. Having said this in the preamble to the Trust Deed, the settler then goes on to indicate the purpose and object behind the said deed by stating that the income from the said properties will have to be used for the benefit of Veerashaiva community by providing hostel facilities to the poor students or by providing the said students food or scholarship and thereby doing all these or any one of them, the educational betterment of the community therefore will have to be ensured. It is further mentioned in the said deed by Gowramma that as Shri Basavaraj Deshikendra Swamiji happens to be the Guru of her Samaja, it was felt by Gowramma that there can be no better person other than Guru to carry out the objectives behind dedication made, and therefore, the properties mentioned therein are given to the said Shri Basavaraj Deshikendra Swamiji.
25. Once again, in the said deed, it has been reiterated that in order to provide educational assistance to the poor students of the Samaja, Basavaraj Swamiji can make use of the properties in any manner and in this regard she has given full authority to the said Shri Basavaraj Deshikendra Swamiji Thereafterwards, the deed also mentions about a case having been filed by one Basappa, a distant relative of late husband in Page 1853 order to obstruct the noble work undertaken by the said Gowramma and despite mentioning the said fact, deed goes on to mention that so far as ensuring fulfillment of desire of Gowramma as mentioned in the deed, nothing will come in the way of the said object being achieved and for this purpose Gouramma will do everything to ensure that the objectives mentioned in the Trust Deed are carried out in full.
26. Therefore, a plain reading of the said deed Ex.P2 leaves no doubt as to the nature of the deed. The very mentioning of words 'Trust Deed' on several places in Ex.P2 itself is proof of the nature of deed in question. Even the respondents in their written statement before the trial Court have not disputed this fact of Ex.P2 being a trust deed in nature. Witnesses examined on behalf of the appellant i.e., P.Ws. 1, 2, and 3 have spoken to the said fact and their evidence has not been seriously challenged in the cross-examination as rightly observed by the trial Court.
27. The learned Counsel for the respondents submitted that Ex.P2 is only a general power of attorney but not a Trust Deed. I am unable to agree with the said submission made for the reasons mentioned above. There is no mention of the ward power of attorney anywhere in Ex-P2. The trial Court has discussed the nature of the documents by referring to the contents mentioned therein and has come to the right conclusion that Ex.P2 is nothing but a Trust Deed.
28. The lower Appellate Court has taken great pain to find out the nature of document Ex.P2 and has virtually analysed the entire contents of the said document sentence by sentence but unfortunately, all the efforts put in by the lower Appellate Court is in vain. The very document itself says that it is a Trust Deed in more than one place and never mentions that it is in the nature of power of attorney and there is no room to take any other view of the matter. The learned Judge of the lower Appellate Court totally missed the main purpose behind Gowramma executing Trust Deed as per Ex.P2. The dominant purpose of Trust Deed has also been clearly indicated by the settler at more than one place in Ex.P2. Therefore, I am of the view that the learned Judge of the lower Appellate Court missed the wood while counting the trees. The said finding of the lower Appellate Court therefore cannot be attained having regard to the said pleadings of the parties, the evidence of P.Ws. 1 to 3, admission made by the defendants in the written statement and the very contents of the document itself. I therefore, hold that the finding of the trial Court on issue No. 1 framed by it is consistent with the pleadings and the evidence on record and the finding given by the trial Court that Ex.P2 is a Trust Deed is in accordance with the spirit and tenor of the document Ex.P2 and as such, the contrary finding given by the lower Appellate Court is totally perverse.
29. The next aspect is as to whether following the death of Shri Basavaraj Deshikendra Swamiji, the properties mentioned in the Trust Deed will remain with the mutt-plaintiff or will revert back to the settler. In this regard, the trial Court as well as the Appellate Court committed error by holding that following the death there was no one to take care of the trust properties Page 1854 and as the properties were entrusted to individual by name, it is the legal heirs of Shri Basavaraj Deshikendra Swamiji, who will step into his shoes. The said finding of the trial Court as well as the affirmation of the said finding by the Appellate Court cannot be upheld in law.
30. The reason for the said conclusion is that it is a very well known proposition of law and more particularly, well established principle of equity jurisprudence that a trust never fails even if there is no trustee. In this regard, it is also relevant to refer to the Commentary of Shri B.K. Mukherjee on Indian Trust Act(second edition), at page 11, which reads as follows:
The trust itself does not fail. Only the property ceases to vest in the trustee who refuses to accept the office. The person in possession of the property undertakes the obligation in the nature of a trust. The property does not revest to the representatives or the heirs of the settlor testator who has already divested him self of the title and interest in the property by creating a valid and complete trust. Refer to Narasingha Charan v. Radha Kant ILR 1950 Cut 374.
But compare Robson v. flight (1865) 4 De GJ & Subject matter 608 with Mallot v. Wilson (1980) Ch 494. In the latter case it was held that where all the trustees disclaim, the property reverts in the disposer, or if he is dead, in his legal representative, who becomes, by operation of law, the trustee thereof for the purpose of the trust. In the former case, it was held that so far as the trust itself is concerned, the disclaimer by a trustee or by all the trustees does not have the effect of avoiding the trust. That is, the beneficiaries can enforce it, or the object of the trust can be enforced where beneficiaries are not capable of suing.
31. Therefore, it becomes clear that trust never fails and it continues to exist. Since Gowramma has divested herself of all rights in the trust property, the question of properties reverting back to her also will not arise. Following the death of Basavaraj Swamiji on 16.8.1970, until the plaintiff Math Swamiji i.e., Sri. Gnanaprabhu Siddaram Deshikendra Swamiji took over the Pattadhikari of Math, the properties in question were managed by the fourth defendant. As regards this fact is concerned, there is no dispute between the parties as could be seen from the evidence on record. It is admitted by both sides that it was defendant No. 4 who was managing the properties of the Math. Subsequently Gnanaprabhu succeeded as the head of the Math and after among to know of the sale deed executed by defendant Nos. 1 and 2 in favour of third defendant, that the above suit was filed. Thus, it becomes clear that the properties which were entrusted to Shri Basavaraj Swamiji under a Trust Deed, continues to be under the control of Math though, through defendant No. 4, later on present Swamiji took over the affairs of the Math. As such, there was no period during which the Trust properties were out of control of the Math.
32. The very fact that Gowramma while transferring some of the properties in favour of second defendant who happens to be her sister's daughter, and Gouramma took support of 4th defendant for executing the Page 1855 documents in favour of second defendant, also goes to show that the Gouramma herself had lost all the rights over the properties which were given to the Trust as per Ex.P2. The argument of the learned Counsel for the respondent that Gouramma had only given general power of attorney to Basavaraj Swamiji, is to be accepted, there was no need or occasion for the said Gouramma to have taken the help of 4th defendant while some of the properties which were also the subject matter of the present suit were transferred to second respondent.
33. Therefore, from a close examination of the evidence on record, most of which is not in dispute and admitted by both the parties, inference that properties which were entrusted to Basavaraj Swamiji under Trust Deed Ex.P2 continued with plaintiff Math until Gowramma executed deed as per Ex.P4 in favour of the second defendant becomes inevitable. When the original settler Gowramma had divested all her rights in the properties for the purpose of ensuring fulfillment of objects mentioned therein, namely providing for education of poor students of Veerashaiva Samaja and also to provide poof students of the said Samaja with hospital facilities and scholarship, the question of Gowramma being left with any rights over the properties did not arise and therefore, all the transactions that took place after the execution of the registered Trust deed as per Ex.P2 cannot be given any credence in the eye of law.
34. The learned trial Judge though answered issues 1 to 3 in favour of the appellants herein, strangely, took a 'U' turn by answering subsequent questions in the negative by observing that the properties which were subject matter of Trust Deed were given to an individual and not to Math. This reasoning of the trial Court cannot be accepted as it was never the intention of the settler that the properties should go to Shri Basavaraj Swamiji but as already mentioned by me, the very preamble to the Trust Deed and other averments make it clear that the intention of the dominant object behind Trust Deed was to ensure that the trust properties are made use of for providing educational facilities to the poor students of Veerashaiva Samaja and other welfare measures like hostel facilities and scholarship. It is in this regard, the trial Court committed serious error and findings recorded by it on issues 4 to 6 which have been confirmed by the lower Appellate Court therefore, cannot be sustained both on facts and in law particularly having regard to the proposition of law referred to by me above.
35. It is unnecessary to go into the details of the rest of the evidence as both the learned Counsel for the parties rightly submitted that the entire case rests on interpretation of document Ex.P2. As I have come to the conclusion that Ex.P2 is in the nature of Trust Deed, and the suit properties have been endowed for the purpose of achieving objects mentioned in the Trust Deed, the Courts below therefore were not justified in dismissing the suit of the plaintiff. As the finding recorded by the lower Appellate Court is contrary to the evidence on record and as such, the said finding having become a perverse finding, interference by this Court in second appeal is therefore warranted and likewise as the finding given by the trial Court on Page 1856 issues 4 to 6 are contrary to the findings recorded by the said Court on issues 1 to 3, both the Courts below have therefore, recorded a perverse finding as regards the validity of the subsequent transaction leading to the property changing hands. Therefore, all the transactions subsequent to the Trust Deed Ex.P2 cannot be validated in law and they have no sanctity as such in the eye of law because Gowramma herself has taken her hands off, in the properties by executing a registered Trust Deed Ex.P2. Accordingly, the substantial questions of law are answered by holding that both the Courts below were not justified in dismissing the suit and the lower Appellate Court was not justified in holding that under Ex.P2, the properties were given in the personal name of Basavaraj Deshikendra Swamiji, and the suit therefore could not have been dismissed.
In the result, I proceed to pass the following order:
1. The appeal is allowed.
2. The judgment and decree of the lower Appellate Court in R.A.No. 12/1993 and also that of the trial Court in O.S.No. 68/87 stands set-aside.
3. The suit of the appellant is decreed and the appellant is declared as owner of the suit schedule property and, he is also entitled to the possession of the suit items 1 to 4. 4. An inquiry, it is ordered mesne profits in accordance with Order 20 Rule 12 of CPC and the preliminary decree shall be drawn giving three months time to the respondent to hand over possession. In the circumstances, no order as to costs.