Karnataka High Court
Late Siddalingamma vs Siddalingaiah Setty on 2 November, 2009
Bench: N.Kumar, C.R.Kumaraswamy
IN THE HIGH COURT DE KARNATAKA AT BANGALOREI T '»I.
DATED THIS THE 2"' DAY OF NOVEMBER, 2039 I
PRESENT
THE HON'8LE MR. JUSTICE? N. :KU:M'A7R.:'A" " A V
&
THE HON'BLE MR. JUSTICE CR :<U§V1ARAS\A:--;xIéI${ "
REGULAR FIRST APPEA'VLE»INj_c;E_.1o67T' 20%
REGULAR FIRSTAPPEAL:.NO.~1,_0§E. 2% 092
In RF!-\1067[2_0O2 A A' '
BETWEEN:
1 LATE SIDDiALIA¥'E:A'b'4'M._A.
WIDOW OF 'DO'DD,APPASWA'M'f _
NO.3Sv;3'6/E1--,ID.7Tj;" CR'c:ISS,"--., '
GAYATH RINAG'A.vR,._ 'I « _ ' -
SINCEDEAD E3Y_
SHANKARA;_ «-
2 SR1, ~S.HAN}<ARA -
S/O.gLAT'E DOD DARPASWAMY,
54_Y.EARS'n .. _____ ..
. RESIDING AT«No.3536/1, 7"' CROSS,
_ CAYAT'H4RIr¢A:3A'R,,
" .Es'AN:3A'I.oRE 2:: APPELLANTS
" (E_Y SRI."I«<. N..;HA.RIDASAN NAMBIAR, ADVOCATE)
III._;':S_;;N.D"*: I _
é SIDDALINGAIAH SETTY S/O SHETTIAPPA,
SINCE DIED BY L.Rs
SMT. GDWRAMMA, wzoow OF LATE
SIDDALINGAIAH SETH', MAJOR,
V.
2
( 2) SRI. KESHAVAPRASAD
S/O LATE SIDDALIGAIAH SETTY
MAJOR,
(3) SRI. RAVIKUMAR
S/O LATE SIDDALIGAIAH SETTY
MAJOR
ALL ARE RESIDING AT NO.277, 10?" CROSS, .
MILK COLONY, BANGALORE 55. --
SHANTHANANDASWAMY
S/O NOT KNOWN, _
VEDANATA SREE RAMARPANAvAR'A..ASHRAMA,_
SAMPANGIRAM NAGAR,
(BEHIND S.R.NAGAR POLICE STA1'ION)=.._
BANGALORE 27. ' ' '
THE PRESIDENT
SIOOARAMANA"YO~GA~_V ' _ --
ASHRAMA SE,vAi_T;»ROS"T, . ,_ *
GAYAT,HRI,N_AG,AR,"--I:;,_ ' A '
BANGALORE,*T3_ _ _
C/O SI'DDALING'A3AH'$.E'ITY,"~.. * --
SINCE DIED. '
SRI. M R EH'ARATHVAN IS/O~~«MAOHAvAN
MAVJ-QR, I"
(REA T"aa:I,d he has no L.RS. véde Order dated 25.11.2005)
I $??.;'I.I MA:D":EA'L')BI- RAO
S/O'vAs\IA'NTf:IA',:=SET,
( R'-«.5 .. vdea_ci}'
SMT. "REMPAMMA W/O CHANNAMALLAIAH,
,, 'M'I3.£I,_OR,
FNARASINGA RAO S/O RUKMAJI RAO MAN E,
SINCE DIED BY LR
I " "SURESH BABU C.N. S/O LATE NARASINGA RAO MANE,
MAJOR, SHOP IN 3536/1 'C', 7" CROSS,
GAYATH RINAGAR, BANGALORE 21.
\a/,..
8 BASAMMA W/O BHADRAIAH,
MAJOR,
SINCE VACATED
9 NAGARAJ S/O MUNIYAPPA
MAJOR, 4
10 SHANTHAIAH S/O SIDDAPPAA
MAJOR,
RESPONDENTS 4 TO 7, 9 & 10 ARE
IN PORTIONS FORMING PART OF 3536/'I.'_C' _
7*" CROSS, GAYATHRINAGAR, _.EANGALORET--21..,_
~ ._ ; 'I~..,"AR»ES.PONDENTS
(BY SRI. NAGANAND, SENIOR COUNSE1'.'FOR_-»._
SUNDARSWAMY RAM DAS AN DV.A'?x£A.i\}'D, F'..D*VOCATVE'S7
FOR R1(2) & R3; '
R6, R7, R9 & R10 ARE SERVED ;.
NOTICE TO R1(1)i;'R1_t'_'3)}""R3S &'-R.jI.D"I.S__ Fé_E'LD SUFFICIENT VIDE ORDER .
DATED 5.8.2005; -NGTIIQE TO R5(A}..IS"DIS9ENSED WITH VIDE
ORDER DATEDF'1T7..3A.'2OO6§§.; 'I '
In RFA Mg,1 Q ggl /zgpgg'
BETWEEN; _v %' V A
"1' __ S.I1DDALING'AI:I-I-I-AI'
r ' WIDOW OF DQDDAPASWAMY
.NO;353S/'1,"*c;"8?H CROSS
GATATH RI.NAc3AR
EANGALORE 2:1, SINCE DIED BY L.R
S H---AN +<A~RA. .
SR1. SHAN+<ARA S/O LATE DODDAPPASWAMY
AIsE.D ABOUT 54 YEARS
'-- _ RE_SI,DING AT NO.3S36/1,
WC' 7*" CROSS, GAYATHRINAGAR
"IO
BANGALORE 21. APPELLANTS
T.(_E.}* SRI. D. R. SUNDRESHA & SRI. K. N. HARIDASAN NAMBIAR,
ADVOCATES) D
AND I
MA,3OR:,_---, . A.
, RESIDING AT~.NO.1309, 133"" CROSS
THE PRESIDENT
SR1 SIDDARAMANA YOGASHRAMA SEVA TRUST
GAYATHRINAGAR
BANGALORE BY ITS GENERAL POWER OF
ATTORNEY HOLDER SIDDALINGAPPA
(DIED)
B. P. HIREMATH
DIED AND FORMERLY _, _
RESIDING AT NO. 78, 50 FEET ROAD,
PRAKASH NAGAR
BANGALORE 2 1.
SIDDALINGAPPA
DIED AND FORMERLY
RESIDING AT NO. 24, . .
17*" CROSS, R.T. STRE'E.T"«. 5
BANGALORE 53. "T - '
G. K. RAMRA,.KR}sHNAw'. .
NO. 491, v:II"MAI_N 'R,OAD,'~, _
VIJAYANAGAR, BA.NO,ALOR§'40. '
(Resigned) '
KESE-.:AvA RRAsAD.. .
s/O_%.sIOT>ALINGA..svH ETTFY
2"" '€~TA--GE,., w,_c".1.ROAO,
.B'A-Q13; ,GALO'*R,E.
V."-H. XIRABAGAR
MAJOR
ARESIDING AT NO.9'5~A, 24*" CROSS
RAJAJINAGAR, BANGALORE 10.
SRINIVAS THIWARI
MAJOR
" "No. 128/22, I FLOOR, R.T. STREET
BANGALORE 53.
8 VISWANATH
MAJOR, NO. 12, 28*" CROSS
2"" MAIN, 7*" BLOCK
JAYANAGAR, BANGALROE 82.
9 DINESH I-IEGDE
MAJOR, SECRETARY
RASTROTHANA PARISHATH __ '
KESHAVA SHILPA, I<EMREGOwDA'NAGAR .
BANGALORE. '
10 RAMA PRIYA S/O RAJESIII-YEN_GAR, ,
MAJOR ~ t_
NO 8, I 'A' MAIN ROAD, SHIVANAGAR
BANGALORE ID. V '
RESRONDENTS
(BY SR1. NAGANAaN'D,]S.E'N"IO_R:
FOR SUNDARSWAM.Y"PA;'MDAS A.NDJANAND,g
ADVOCATES FOR Rstzo R-:28; *
R1 to R3 -- D.ECEASED,; -
R4 - SERVED) * ' '
THESE TW.Q R.FA S._fiIRE"FILED UNDER SECTION 95 READ WITH
ORDER 4I;R'uL#E 3. OF-.C?C AGAINST THE COMMON JUDGMENT DATED
;;',2.'@2 P-ASSED. 1N,O.S.N'O';'7O83/80 C/W O.S. NO.2033/95 ON THE
FILE'OE..TR--E_"I,sT?*:"'ADDITIONL CITY CIVIL & SESSIONS JUDGE,
BANGALO_RE,"'v ."D.ECR,EE'ING THE SUIT IN O.S.NO.7083/8D AND
"~v"DISMISsI,NG THE_"S.--uTIT IN O.S. NO.2o33/€95.
.T¥j'ES.E=-RILPPEALS COMING' ON FOR HEARING THIS DAY, N.
'~--..'Ku'MAR_. ;j1., DELIVERED THE FOLLOWING.
I/,
JUDGMENT
These two appeais arise out of the common Decree passed in two suits dismissing O.S. No.'_2'<'Z!._.:33v,/95 decreeing O.S. E\lo.7083/80. Thereforemt'hes.eatw-:oare ' taken up for consideration together ah.d:"dAispostedAtof' common order.
(2) For the purpose'.__of co'nve:riieE*iec.e, the" parties are referred to as they are rererireee)rrerrre.s;lereosa/so, the old Suit number being:.O'S,':-No.2A7Z3[,i9?y9';:'fjg.__' it (3) in o.s. ho.2o33/95 is the entire subject matter of the suit in (3.5. No.7:C83/8l€l4"is._:Va'onlyiiportion of the property which is in the o~t:rthe..defeVnvdahts in the said suit.
the piaihtiff is that the entire property 1"Voriginaiiylhefhntjézdl to one Chickmariappa s/o Doddamariappa.
"*"l.--1'i.iéi'e_VV'gifted theisaid property in the year 1932 to late Sri Sadu "'*rADodd.a'p«pan$wamy who was a disciple of Sri Sivaputraswami of with a condition that it shouid not be alienated to h/..
anybody. It was a religious trust created in favour of Sri Sivaputraswami as guru of Sri Doddappaswami who was a Sariyasi being unmarried. Whiie Doddappaswami was alive, he was running an Ashrama called Sri Siddaramana Yogas__rira'm'a. on behalf of Sri Sivaputraswami. Sri Doddappaswamyvjjdied' 7.8.3950. Thereafter Sri Sivaputraswaimy management of the Ashrama arid for its smoothly;managlemerit~, formed a Sangha tailed Sri Sidd'a.ramana"-Yogashrarna' lsevaii Sangha, of which he was The"sa'lcl Sangha was managing the Ashrama effieilefitiyl sin_e.e'*i.£§.inizeption. As Sri Sivaputraswami tlhevflfound it inconvenient to manage it vxftijfiroulgh So, for its smooth administration alufterahisi iifewftivme, he created a religious trust talliedySriisiiddaramanlalYogashrama Seva Trust by a registered Trust illeed appointing himself as one of the 1"trustees--.andv_,oth'e~rAlfour persons by name M. Muniveerappa, R.P. ""l.--Ti.'i4i"i.re'rnAath, Siéiiddaiingappa, G.i(. Ramakrishna as trustees. The the President of Sri Siddaramaria Yogashrama Seva represented by his Power of Attorney Holder :li«-.,flSiddaiingappa. _ The defendants 1 and 2 were engaged by the l/ President of the Sangha to look after the property on monthly salary of Rs.25/~ and Rs.15/-- respectively and were allowed to stay in a small portion of the Ashrama. Incide.nt_all_:y~.V_15' defendant is the mother and the 2"" defendant is were working strictly under the supervision of t'l'le'»'P.residentV and the then Secretary of the Sangha till started asserting title hostile to trie'p_l.aint§iif.'V:
against the interest of the Ashrama.:'l':l'1e'yfiled.hayigyligceivvfcomplaint on 26.6.1978 against the $ecVr'etAa'ry o'f:Vl't"rieg'vv§a'n.gha and also filed 0.8. No.2158/1978 on their-'fihlef of-_«the'.i..Vl_ Vg:lVliJ'n.siff, Bangalore, claiming they rendered themselves liable to Ashrama premises as their possession, lthatsiof trespassers. Therefore the tfiepsuiitiwiifory possession against the defendants directiiiig"to'i-vacate the suit premises and to put the "plaintiff po.sses'sion of the same.
(5)-...yAl'vt'er service of summons, the defendants entered it'v-4"_~._ap.pea:a'nce. They contended that they are not residing in the ' Siddaramana Yogashrama Seva Trust. They are residing in the K/.
property bearing S.No.39, New No.1, Street i\lo.11S, III Division, Yeshavantapura hobli, now called as Gayathrinagar, in their capacity as owners and there is no Siddaramana Yogashrama Seva Trust in the said premises. They admitted property originally belonged to Chikkamariappagwwfhog same to Sadhu Doddappaswamy as per dated 4.8.1932. It is also true that Sadhuy :Doddapp".aswamywas'irI a disciple of Sri Shivaputraswamy'e».,VVof Hubli..V_""£ioweyeVr, they contended it is false that there. waislaniytlr_e.livgious trustxcreated in favour of Sri Shivaputraswamyfldigit; Sri Sadhu DoddaDDaswVamy.i' coritenlded it is false that Sadhu Doddappaswamy being unmarried. Sadhu DoddaPi3a.swamlr""i5.Vthe" rlu-shaind of the 1" defendant and the fatiheryofsthe...'?."""*defenVda'n"tand therefore it is false to allege that the' marry and was a bachelor. They also vrdehied the a_l.leg_ation that late Doddappaswamy was running an "--«l'.j'iAshi*am undefthe name and style of 'Siddaramana Yogashrama' of Sri Shivaputtaswamy in the schedule property.
"a.'%"iIhIey_;~§dmitted that Doddappaswamy died on 7.8.1950. They Vlliiflderlied the ailegation that after his death, Sri Shivaputraswamy g/..
10 of Hubli took over the management of the aforesaid property and that for the management of the said property, he formed an Ashrama or Sangha calied 'Sri Siddaramana YogashrarnVaj«.iSV'eyua Sangha' and that he was its iife Shivaputraswamy ofiiubii has got no__ri.gh_t,A ' respect of the above property, as such he any Sangha or Trust. They aiso 'denied was being managed by' anyAy_...i:VSaing'ha ihformedf by Sri Shivaputraswamy. Further it is false that the said Shivaputraswagmycreatied_"a,:ireiig-iogiisif trust cailed 'Sri SiddaramanVa"YVogas.fh.,raArfia' a registered deed of Trust datedo himself as a trustee aiongwithj.otherialfotir'perso-nsI:VThey denied the aiiegation that they.w¢'re?'en'gag'ed 'th'e"l3resident of the Sangha to look after the'V'abti3/eh a morithiy salary of 125.25/--- to the 13' Evfl""dvefendarit to the 2"" defendant. They are not un'd.er the supervision of the President and the then the Sangha till June 1978 as alieged. They fizntentl that they never recognised the title of the piaintiff at time, since there was no Ashram beionging to the plaintiff t i/' ii or Sri Shivaputraswamy of Hubli. There is no question of their acting against the interest of any Ashram. They did lodge a complaint to the Police against one Sri Siddalingappa;~»:'f"g:'7fhey have also filed a suit o.s. No.2158/1978 which is--r'jr:e~nuhibeéegdi as O.S.5422/80 against the said Siddaii'n'g-a.ppa_:'4inciivyi'du'a'l if capacity.
(6) The defendants specifi»cal'l'y..ypleaded' --.th"at"'~--the"'above"V property was gifted to Sri Sadhu,r-Dodg_d-appaswami, husband of the first defendant and '%fa'ther§'1"pf::'2t'i7'V"_».:d'e«fendant by fate Chikkamriyappa under the ;:'dié§q:i%i[:orIgif:oatezdf' 4.8.1932. The said donorhhas'in"the-~::SaE'd"--.gi'ft'deed intended that the said property must°*b_e residence and to perform the religious.' activities. "'~«.Blfterg.the death of Sadhu Doddappaswamy, the first _Vdefencia:n"tv __being his wife succeeded to the property valongwith.i'he'r'lcif:.ildg:=.'and continued to perform the said activities with theu44"hel'p.gVo.f'fSri Siddalingappa who is none other than her .1 ijrotheréll This is on account of the fact that the 2""
was then oriiy a child when Sadhu Doddappaswami ."""v..VAAe'xpi'red and she had no other cioser reiatives than V. 13 reiation to the aforesaid property, since they are not aware of the contents of any of the documents that might havexbeen obtained, even if any documents do exist. Even if he said document, it will not bind the defendants has been obtained by the said SiddalVi.n»g»appa V' influence, misrepresentations and fraud'; iis--on..accou'nti:'o:f the fact that she had reposedVful'l~..._confi'dence saidr person being her own brother and,..,gVl:S0.in._vievir"of..the'§ fact that for several years the second""dlefend_a'nt ou't.of Bangalore for his education and ottie:__pur:p'o'sesV; ffliie.,_sa'id;.§i'ddalingappa may have taken documents against the interest of the defeindants out the valuable suit property. 5 . Si,nce'43u_n"e--1i97A.8, the religious activities in the suit pierfoirrned by the defendants and the said Sidadraiiqngapp:a'--«.:,haVdV"r~never performed any of the activities in the "siaid prQpert'y~ no+ he is in possession of the property.
"iii.--1'i5i'herefore submit they are the absolute owners of the described in the schedule to the piaint and the plaintiff no legal right to seek their ejectment from the same. defendants submit that the suit as brought is not V, 14 maintainable either in law or on facts and it should be dismissed. They denied the existence of the trust called 'Siddaramana Yoganashrama Seva Trust' in the suit schedule property§:'f"--«5i'i"..ey aiso denied that Siddalingappa is duly authorised prosecute the suit. Therefore they sought 'for; isal the suit.
(7) In the suit filed by the"d_e'fendan'ts: making-l the plaintiff in the suit as a_ partyAy3Td:'defe.ndan't;'t.h_eY..ihave also added one Siddalingaiah" iiflsetty p15' defendant, Shantanadaswamy of * \{edanl:a" pp'a'n'ava ra Ash ra ma, Sampangiraima'nagara'ffas »i.V42:'*"1s._:V"defendant and tenants in the portions of theVV"p.ro;2erties'as defendants 4 to 10. In the piaint, they hevef vreiterated--i.vy_hai't they have stated in the written statenje*n.t. ..A'sth_é"vdefendants are denying their title to the suit vpropei*ty"-.either."y:-jbyrlfiling suits in various Courts or by their assertionsh it became necessary for them to seek for a ,1.-w..Vd'er;liaration. N0n the date of the suit, they were seeking for a that the piaintiff No.2 is the absolute owner in """v.._p"ossession and enjoyment of the suit schedule property iv/., 15 aiongwith plaintiff No.1 who had a life estate therein exercising their rights personaiiy and through the respective tenants in respect of the suit schedule property and aiso soug:'ht:'"'--for Permanent Injunction.
(8) Defendants 1 and 3 filed a common wrifttpeniffi,state_me'ntéif denying the ciaim of the piaintiffs in the«.said the aiiegations made by them inVth:e~v..piain.t in suit by way of defence. The other.defendants did not"'fiie. any written statement.
(9) trial Court framed the foiiowing issues in IssL{~_{:_§_in ofs.:\ip;7o8:§g1§8o:
1vJ"i!iihEiéthea=.aSri. iiofdidappaswamy was a Sanyasi and f '2..."'Nhetiier the suit property was gifted to Vfbodvdappaswamy on behaif of a reiigious Trust?
3._ W.h'e't'her after the death of Doddappaswamy, V. _»_ri_1anagement of the suit property was taken over i/ by Shivaputraswamy of Hubii?
9. 16
Whether after the death of Shivaputraswamy, suit property was being Siddaramana Yogashrama Seva Trust?
Whether the defendants were_ em'plo'yed.''"'on'--_ '4 monthly salaries to look afterltheisugift j Whether the 15' defendant is 4the".widovv:;agnd 2""'=,"
defendant is the son of ["Jod'dappa.sw__amy?'.:
Whether the suit has beyerf-p_rop_erly."vailiggggvvfiand proper court fee hasfheefti _ Whether Sri. Siddall-nga'ppa'v h.advAA.';v.azi;I_'thority to verify and sign_the:"plair'rt? g 3 ~ To what. I§'1e'lie:f:tf;ieVplalrrttiff is ientitiédll?
10.What ot§iei:_r_"'¢~,A_vr decreléi' 4' ° Issues ' l
1.
DoesV«isuirvivi--ng'~ prove that deceased ;1$"_plainti_ff'7is the legally wedded wife of 5f'DQAd.gdavp.pa Swarny and that he is the son born '~ . yogurt' 'orthat. wedlock?
;"..gVL§o'e:s'_~v_vh__e'V~l.fu'rther prove by virtue of the gift deed "-._datved.Vli~".i3.1932 executed by Chikkamu niyappa in favour of Doddappaswamy, Doddappaswamy had it 'll"4..acquired exclusive ownership over the suit "schedule property and on his death he succeeded to the suit schedule property?
ma nage<;1..._' 4' "
E7
3. Does he further prove that he is in actual possession and enjoyment of the suit schedule property as on the date of suit? he
4. Whether the suit is barred by limitationr'_»VaS4:';~Z"
contended by defendants 1 and 3 ?
Is plaintiff No.2 entitled for th_e,relief sioucg5i:ire£a'i'v?pl
6. What decree of Order?
10) By an order, both the sui.t_s=.were."ciubbtedvfa'nid'V"corrimon" 3 evidence was recorded. The plainti.ff'--in'~-.order'to. substantiate their claim examined one as PW--1, Keshava Prasad as F.'i(V+.2, 'i--§:a:nja'i~V:iK_ri_siin:ai'"as PW-3 and S.C. Prabhakar also produced 58 documents which are marked They also got marked three other docu'm.e'n'ts.r"as"' E$cZ1 to Ex.Z3. On behalf of the l'dVefendan-ts,'5Sid'tiia_lingamrria and Shankara were examined as also produced 38 documents which are 'Vrnarked'--as to D38. The trial Court in the course of the "*'i.--Ti.3'u.d:grment found the issues in both the suits are not properly therefore while defivering the Judgment, it has r:ecast:the issues. The issues so recast are as under:
i/,..
18
1. Whether the property was gifted or donated to Doddappaswarny in his individual capacity or for and on behalf of Sishya Parampare? ' "
2. If it is in his individual capacity, then_..w.ho'f~~'.iyjsn--..ff entitled to succeed to the said property.?__"_fi_v V .
3. Whether the Court-fee paid is.__suffic.ient?_1 f V
4. Whether the suit fiied7b'y.._v.Sm't;-._§iddaiVi'n'gai*nnf;a_."§ and Shankara in OS.NoV.'f'2Q'33/95 ahiafirredi by (11) On appreciation and~~d'o't§_'pV.r.nentary evidence on record, the trialf"f.:o'urt"-.heid";the was donated to Doddappaswamy of 'sishya parampara' and not in his individuai.._chapaVcity'ancftherefore on his death, it did not ;i.eyoivegd1n'vvthe defeindvants as contended by them. It also rec_ord;ed._a ..fVii1.ding"vthat Doddappaswamy was a sadhu sanyasi and wastnot'vniarrifehdifand therefore the defendants have failed to proye th4at..the"1$5t defendant is the legally wedded wife of the .1 -rsaidi..Ejo'dduappaswamy and the 2"" defendant was born out of the V."-if-._afores'aifd"wedlock and therefore they have no manner of right, 'fut'-.._AtitlVemor interest in the schedule property. After the death of 19 Doddappaswamy, a Sangha was constituted by his Geri; Sri Shivaputraswarni and the property was managed Sangha till 1978. Thereafter he formed a 'i'r_Li.Vs__t':'a.s f'_Ex.P«'5..
dated 25.11.1978 and therefore the its"?
Defendants 1 and 2 were appointed andthey were..paid siaia'ry."g In 1978 they asserted titie in thea..gei--,es td'»r.h4ye:iporta§on of the property in their occupatizj}j..._tdand'Afnsté%--{ed.fl'c.!.ain'iing" title to the same by filing a suit. V of the property and therefore is possession from the dismissed the suit for deciarationZtfofmtitieit5fitieAd;'§,4by'Tithe defendants, decreed the suit of the piaintiffvvvfforf portion of the property in the occupation. Of the "de'fenCiants."' .1 .A by the said Judgment and Decree of the triai cot".-t, tVheV".dtefe.n'dants have preferred this appeai. (13) Sr_i'3~Haridasan Nambiar and Sri D.R. Sundaresh, the 4:~--'.V.V'ieatrn'edpcounsei appearing for the appeiiants assaiiing the . 'V:."hin*i.p:t_ig_ried Judgment and Decree contended under Ex.P1 - the deed dated 4.8.1932 the scheduie property was given to 1/..
20 Doddappaswamy to be enjoyed by him exclusively. his death, appellants being the wife and son have inheri~ted_jxth_e:'.j'sa'id property. They were living with him till his deat:h~.,V death, they continued to be in poss;:essio'nfi,o'f,, schedule property. T_herefore_:t_he trial'VCourtf--cornrnitl;ed~ serious error in holding deed Doddappaswamy did not become that the defendants are not the wifeo§~.léi:e'ilioddappaswamy. i\lextly it was corl'ten.;ded held as a trust property, the .'.fio'&V'rnanner of right, title or interest over plaintiff - trust was created by one who had no manner of right, title or interestia"o~.r_:eAr'itheffproperty and the recital in the trust iglieeti. the "p..rope'rtymbelonging to a society is the property in respectaof4V%ti=2_el.~trust is created and the schedule property Vwas never the 'property of any society at all. Therefore seen any anole, the plaintiff is not the owner of the property. if"--V.xT'he"xpl'a.in.l§iff has not sought deciaration inspite of denial of his "f%ti'tie_,,prior to the filing of the suit and therefore is not entitled to relief of possession. On the contrary, it is the defendants it/.
21 who are the owners of the property, who are entitled to declaration sought for and protection of their possession. (14) Per contra, Sri S.S. Naganand, learned senio_r'oo*uansel appearing for the plaintiff contended though the'::"deé_::c:;Cdathéd 4.8.1932 is described as a gift dee--d;'»--the the document make it very clear that e$_{_e'cutantAaA' document created a trust Vconferrinhg l'e.ga'l_ V"'~--!5i'g'i*rts' on"
Doddappawamy and beneficiary in;_.eres_t.o'n_his 'si'sh-yaw:/arga'. It was given for charitable purp'o's_e- the said gift deed did not create an exclusive'titlleiiiinajfafirourd" u'Doddappaswarny. As such the defeVn"dafnts right to inherit the said property. lvloreovverx'thle.'.'e*,r'i::dence on record do not establish that the..1§ff"udefenda'nt..ls___t_he wife and 2"" defendant is the son of they said-. _VDo_dd«appa-swamy, to whom the schedule property was given~.in,ytru'stVu."_u.nd;e'r. Ex.P1. It was also contended as the proapertyuisaaaitarust property and the sole trustee havingdied, the of"-Daaodvdappaswamy came down to Bangalore from Hubli, V"»'V."l_too'i<tpossession of the trust property and for proper naanagement of the property and conduct of the religious 22 ceremonies which were being carried on by his 'shishya varga', formed a society and subsequently he created the plaintiff-trust to manage and perform the religious functions. Thoughfneither the society nor the trust has the legal right to the_.A4*p--ro'p:ei'tjyy course of events suggest the trust... .p4rop_érty"
possession by 'sishya varga' and 'mah'ajai5ias"; as.s'et:"yo:,i't:V'li"njtihe gift deed and they have been'l.u"s-i..ng thr-::_ for-L' charitable purposes as n'i_entioned.fl'i'n_"'an.dVy,.*}vhen the defendants occupied a portion"--c_oi5--.i}th.'eVii.':l_property with their permission and then_tur_ned:"hoisti:l:eVas.sVe_rting~,th'eir title, the trust owes a duHtym"to*' t_rust"V property and eject the defendants and 'recover for them. In that view of the matter, ti_=.e.r suitflifiled for ejectnwent is maintainable and the trial 1Co'Lii'i--'t yw"a--s'ju.stifi'ed in granting a decree for ejectment. thje""aforesaid facts and rival contentions, the points that ai"ri'se:"for our consideration in these two appeais are _. ._qrlq§r.: ~ (4 ;
23
(i) Whether under the registered gift deed dated 4.8.1932 as per Ex.P1 the executant gave the schedule property tokg Doddappaswamy in trust or exclusively':fC:t"gf__. himself?
(ii) Whether the 15' defendantiiiés' said Doddappaswamy "2J"' is their son, who hajve--._succte'eded property and are ezntiitied to "zzointinule in possession in"'a.V_por_tido'n"o-f:4the~property
(iii) Whethertheipiavihnitiff h«'a.vs'Ja right to V thxé"d'efe'ndants'"'from the scheduie prope'r'tg}:-3:" ~ A » (V:i5)V 'ahswer to the point No.1 revoives around the interpr-e'ta.t'¥oVn'étog:..be"piaced on Ex.P1. Ex.F>1 is styled as a gift VV*,_deed. .I.t"'*V_is"":dated 4.8.1932. It is executed by one .1.i,:C'hikE§amariavpiipa S/o Doddamariappa in favour of Sri Sadu idiv."g:_Doidda~ppaswamy, who is a discépie of Sri Shivaputraswamé of It states Sri Sadhu Doddappaswamy is residing at if 24 Bangalore in the Ashrams belonging to others and teaching morals and rendering service to God. The said Chickmariappa is visiting the said Sadhu Doddapaswarriy for quite somietim~eg""a_'nd he is hearing his discourses. As Sadhu Doddappasuiiarny':.ihas.""i1o".4_ Ashram of his own and no place wherehe can g_ivev4dis.cours_es,'-as ' ; ordained by sadguru, he transferred is worth about Rs.400/~ for the:'pugrpose:__ an Ashram by way of gift," It':i-~fu:rthe'r.._.recites... Sadhu Doddappaswamy with the raise funds, establish an Ashram_and_ ca -iigio enjoy_irig said property for ever through _p'inloweveVrVV'Sri Doddappaswamy or his disciples haveuno to alienate the property in any manner. _ Similalriyitheexecufant also do not have any such right of'al-ienatiiiont. "in futurefif Sri Doddappaswamy or his disciples areV'una_bleri the charitable functions in the Ashram and comes to.-.a:l':'stand--still, then public are entitled to make ~-l«l'.j'jVapp'ropriate arrangement for carrying on the objects of the Trust. 1'*--V.VéThe"npossession of the schedule property was handed over to Sri "5VlD--odd_appaswamy on execution of the said document. In fact it is recited that in a portion of the property gifted, he should be V I/A permitted to bury his father on his death where he wili construct a tomb.
(17) The Indian Trust Act, 1882 defines what a According to the said definition, a 'trust' is an obiigation:'an"n,e§{edi--.' to the ownership of property, and ar_i.sing_4ou_tcoi:fi_d'ei'ic§". reposed in and accepted by the owner}-or:deciare~d_"a.nd by him, for the benefit of anothefr,_:or__of a'notne_r ownerf The person who reposes or:__deciare.sVithe"confidence, isiicalied the "author of the trust"; the"pers'o_nf}.yihoteiccepts confidence is cailed the "trustee";4_th__e person :for.'wh0_seVV-benefit the confidence is accepted is calied the subject--matter of the trust is called AV'trust--p'rope,rtyf:..'or "trust-- money"; the "beneficial 'iii'-tereStv'5»brvv"'interest"».of___the beneficiary is his right against the tr'uste§«.,as the trust--property; and the instrument, if any,'whichVu7t:he',:=.trust is deciared is caiied the "instrument of trust". terms of sectioh--6 of the Act, a trust is created Aftheauthor of the trust indicates with reasonable certainty f"-4'j~._igyf.-anyfiyords or acts (a) an intention on his part to create a trust, (b) the purpose of the trust, (c) the beneficiary, R/.
26 and (d) the trust--property, and transfers the trust--property"to the trustee. Though the Indian Trust Act, 1882 ..a private trust and trustees and has no application the Apex Court has held the principles]gove'rnira_g are applicable to a public trust; _alsor'---Af=7i;herefC:reV"
concepts such as what is a trust, a a trust property, who is a beneficiary'-are a publictrust. (18) in the backgrou,nd,:'_o--f of law, when we look at is of the trust is a Chickmariappan __i-ité_"c:'reate'd._:a:~.t_rustwitti the purpose of providing his property, for .cVh'afi-tab,l'e"'-purposes, for giving discourses by Sadhu Doddap'pa_swarny.,V'f_Sa'd..uéDoddappaswamy is the trustee.
The ben.e:ticiVa'r'ies ate'«--h.i,s___disciples. The said trust is created by a re'gViste're.d transferring the trust property to the vtrustee,."--.l"fhei--".jbe'n'evficiaries are sishyas and public at large. Therefore itis a' blic trust. The legal title to the property vests tfheatrustee and the beneficial interest or ownership lies with the slijslhlyas or the general public. Therefore a careful reading . ' oftthle recitals in Ex.P1 makes it clear that the author of the trust E;/.
28 case, on the happening of the event, in the latter, when the happening of the event becomes impossibie. Therefore___it was contended when the property is transferred in favour_.'ef:'-St_advhu Doddappaswamy, on his death when his 'sishya not continue the purpose for which the,_trust'"is""§frvea'ted,.V th_e'V interest in the property on his death \}ests_"iiri the iie-irsi1viof Doddappaswamy and therefore became .absVoiu_t'e-...owners;-L' The said argument wiii hold good ify_.E$§A;P.1=i..s topeconystrued as a gift deed simpiicitor where""the_ exect-tant':i..o'f--..the document is gifting a property in fewour of If the executant absoiute title to Sadhu Doddappaswanjiy'- is oniy to transfer Iegai interest conferring,,:V'bVei1eii'cia'I:V interest on the beneficiaries, Transfer of Property Act have no appiicati,_on.rr "
(i) *~"ftidor in the 5*" Edn. of his book Tudor on "..f'Charities summed up the principles cieducibie from theteaises on the subject:
If the intention of the donor is merely to benefit specific individuals, the gift is not V .
29 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 accomplishthe abstract purpose of relieving pov'er'ty,~.,._ "
advancing education or religion or « purpose charitable within thegirieanirigg of the V Statute of Elizabeth, with0ut1__giving to tarry' particular individual the Vrightt__to:_clajIn_»_, the = funds, the gift is charitable, _V A "
(ii) In B.K.Mukherj_ea: The__igHin_du» law' 'Religious and Charitable Trust,_"':g'--Tago1je L,a'-.v"«.Lectures the distinction between a publiciiand charitable trust has been setgoutiin terrns:
are of two kinds, public and private, » Ina public-.,,endowment, the dedication is for.-the uuse..,vor~benefit of the public at large or a "'«..g,pecitie;;Lgclagss. 'when property is set apart for th.e"ivorship«v,.of--.a family god, in which the public is not interest-ed,,.'the endowment is a private one. It is _ a q1iesti._on~.of fact whether a temple is a private or a V"«.__V"public'oifi:e. The devotees. the supervision exercised founder and his descendants, whether the and profits are exclusively utilised for the T 'temple for a long period, as also public visiting the temple for darshan and worship, appearance of the E'/,.
30 temple, association of members of public with management and earlier statements or admis.si_onf'o:f~tg parties are relevant factors to be takein "
consideration as to Whether a temple is or a private one. 2 9 A 9 .
(iii) In order to ascertain Whether is private, the following factors are"re1evvant:' it (1) If the beneficiaries'Aig_~é1'r6;s,../eascertlained individuals. ' ' V " Vi (2) If the:Vgrant;'haVs' iiirivlfavour of iand _i1.ot"'in---'favour of a (Vi"eViff__.V V. ~ -1' he situated within the xcamptzs the--- residence of the donor.
(293'Therefore.._V_itV'is clear from the recitals in Ex.P1, the deed never intended to give the scheduie propiertfito"'i5oddal';jgj'aswamy for him to enjoy exclusiveiy and pversonaily. he was giving discourses at different Ashrams in and he had no Ashram of his own, the executant gave land to him so that he couid raise funds from his disciples "establish an Ashram and then continue the charitabie 31 purpose of giving discourses to his disciples and to the public at large. It is in that context, it was stated he has no _right to alienate the property nor the executant of the docu_me_'nt""has retained any right over the property insofar 4_ concerned. It is also made clear t.hat-thef_pro:pe.--rtf,r.V"is4.'_jto enjoyed by the disciples of Sadhu Dodldapipiaslwafmyi; event of the discipies not beingllthjlere, re'iig__ioiusV»a'ct:i.v'i'ties"; being stopped, then a direction 'givenl-toVi.'t_h.e"*pyubiictto-taite over the management and make the religious functions to continueiinthegjsaid Ti*:;erefore the intention is very clear. if in the document is very clear. There " was.,w_.'nof«intention to give this property to Doddappaswamy"for'his personal use exclusively for himself so that-.hgisV"i-ega.l'*he"irs woulvdminvherit the property after his death. (A2-1) :?he.liV'i5t defendant contends she married Sadu if"'T?"CioVd"daputtas.wamy in the year 1946 and the 2"" defendant was born-..Vi'n».t.i*ie year 1948. In fact a Transfer Certificate issued in 1967 is produced which is marked as Ex.D1 to show I/t 32 that the father's name of the 2"" defendant is Sadu Doddappaswamy. An entry in the School records in year 1967 showing 2"" defendant as the son Doddappaswamy is no proof of the marriage defendant and Sadhu Doddappaswamy-;Tn-«fact'_,'&eitc'e:Vpt',_asse'rtinguif that she married Sadhu Doddappaswamy Wednesday, absolutely no particuia:,rs~~._are the"? said marriage, their living .--«togethlerVV:.a:s lhusbalndiandii wife and anybody recognizing them The trial Court has carefulty app,re--cia--t_ed It had the advantagegof ..the_i_demeVanour of the witnesses, in particular, first'defe.rtdlant""and has come to the conclusion that thejimarriaégefasetl' up 5;, the 15' defendant with Sadhu 'i)_oddapV'p'asvir'amyA.is notmpéroved. We have also carefully gone thro-tlghtVhe.,'ewntire~.o1raE evidence on record. We do not find any 1"V'i'llegality*.__Cornmitted by the trial Court in recording the said
--..._fi,"fi"nd'i'n,g as there is no oral or documentary evidence to prove the n'1aérriVag.e..ueset up by the 15' defendant. The 2"" defendant claims befthe son through the 15' defendant. In addition to the iie.,.,U"'i*'raVnsfer Certificate issued by the school authorities, he has also 33 produced Certificate from the office where he was workging, where also he has been referred to as son of Doddappasi_i_vaimy'...y When the evidence on record do not establis.h.,'V_"the':rna'yrr:ag*e._f'~.._ between the 1" defendant and late these documents which have cgomae years after the death of Doddappasyvaniyg byV"v»'h'i"chV':timeooth 1" V and 2"" defendants have'occupi.ed:_aVl':'r)Vo'Vrt'i~on ofvvthe schedule property, do not establish is the son of Doddappaswamy, in holding that the 2"" defendant also that he is the son of 15' defendant andlvlthverefore we do not see any justification "said finding of fact recorded by the trial Court.
'(22i)' » trust has filed the suit for ejectment. the plaint, they have referred to Ex.P1 and after Doddappaswamy died on 7.8.1950, his Guru Shiaoutraswamy of Hubli took over the management of Ashram, smooth management formed a Sanga cailed Sri ii/,.. .
Siddarama Yogashrama Seva Sanga, for which he was the Life President. After Shiivaputraswami became oid, herj"fou--.nd--VVAit inconvenient to manage it through Sangha.
administration after his life time, he ..created called 'Siddaramana Yogashrama Sex/la Trust' trust deed dated 25.11.1978 appo«i_nti.ng fiye.'persons5.as"~tru:stees'~if including him. The defendants 1_.-anfd-.2"»v_vere"engaged by the President of the Sangha to on a monthly salary of Rs.25/- and R31 were allowed to stay in a smallof.:_t.h;e~.._Ashiiamg,» They were working strictiy under of President and the then Secretary of th"e_ Sa.n'gh-hafti-i.l:'""'1978. Thereafter they started assertinggzitlge hlostilerto thewlpiaintiff. They started acting 'ag.ali'nstV'the ii-riterest of «Ashram. They filed a police complaint on'VA26..6. the Secretary of the Sang ha and also filed 2158/1.__978n.:'~0An the fiie of the I Munsiff, fiangalore claiming themselyes. Therefore they have rendered themseives lia.b«le_"to..ui"be evicted from the Ashrama premises as their 1 oossession has become that of trespassers. Therefore a suit ejectment was filed. In the plaint itself, it is clearly asserted 37 property did not vest with the piaintiff~trust and they are only carrying on the activities of the Ashrama. But unless the titie in the property vests with them, they are not the ownersgofy the property in question. They cannot maintain possession against a person who is in actual occu"p_ati»on. of the property. When the titie is denied eve;nWhefor_e'*'fiIi-ngiisoi it was obligatory on the partof the1p!.aintift_".i_t.o" see'ic'fo'r'--..y deciaration of titie. The title do notvésts withthes tom; and they V are not the owners of the schedui«e"'pro:p4erty.._andtherefore they cannot maintain a suit for possession?3'Qatiigi'5'§':.pe_iiidefendants. (23) if the tru.ste:es.di'e.s:""wi~thout making any provision for his succession, the pi-aintiff is in possession of the property the trustfit is open to them to get a scheme Civii Court, get thernseives appointed as It:'ustees---._and.-thieyjiicarry on the trust activities and in the course .
""i.--Ti."o'f__V"dischargi_rig the duty as trustee initiate appropriate p'roAceVed.inigs against the defendants who are trespassers on the "property and recover possession. But the present suit filed for :ii«-.:v'"ejectment against the defendants on the ground that they have 38 a right in the trust property on the face of it is not maintainable. In that view of the matter, the trial Court was not justi--fied in granting a decree for possession in favour of theV:V'pi'ai:nt.iff directing ejectment of the defendants from the schedule property which is the SUbjé(ft'''mgaiiteifréfvi._tfie~'.:'SUf'i'E«. ' Therefore the decree passed in OV.S. set aside. Hence we pass the fo|ior.ry:i't:.g order; ' it
1) RFA No.1066/2002 is afjfora/ed;'Ah."'--:_ Vvforflxejectment passed by the trial Court isvhfrerebff's'et_.asitfe; 2 ) RFA No.1067/2£)02fjs'distnissecit if ..
3) Parties tvcgbear their ' Sd/-.
W;
Iudgé' Sd/-5 I11dg'§ " " i,'3s9'.'_f