Kerala High Court
*1 Raveendran C.S vs Sree Narayana Charitable Trust on 10 November, 2020
Equivalent citations: AIRONLINE 2020 KER 1356
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
CRP.No.841 OF 2019
FROM ORDER DATED 14.10.2019 IN I.A.NO.903/2019 IN OS
131/2019 OF MUNSIFF COURT, MUVATTUPUZHA
PETITIONERS/PLAINTIFFS:
*1 RAVEENDRAN C.S.,
AGED 61 YEARS
S/O.*GOPI (CORRECTED), CHELLISSERIL HOUSE,
PINDIMANA P.O., KOTHAMANGALAM - 686 692.
(THE ADDRESS OF THE 1ST PETITIONER IS CORRECTED
BY DELETING THE WORD S/O.GOPI AND INSERTING THE
WORD S/O.SREEDHARAN THEREIN, AS PER THE ORDER
DATED 15.10.2020 IN IA. NO. 2/2020)
2 K.A.GOPI,
AGED 65 YEARS
S/O.AYYAPPAN, KARUTHEDATH HOUSE, PINDIMANA
P.O., KOTHAMANGALAM - 686 692.
3 VELAYUDHAN K.N.,
AGED 54 YEARS
S/O.NARAYANAN, KANNIMOLAM HOUSE, THRIKKARIYOOR
P.O., AYAKKAD, KOTHAMANGALAM - 686 692.
BY ADVS.
SRI.ALEXANDER JOSEPH
SMT.TERESA C. JOSEPH
RESPONDENTS/DEFENDANTS:
1 SREE NARAYANA CHARITABLE TRUST,
REG.NO.IV/34/14, PINDIMANNA KARA, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692,
REPRESENTED BY ITS SECRETARY M.N.SADASIVAN.
C.R.P.No.841/2019
2
2 P.R.VIJAYAN,
PRESIDENT, SREE NARAYANA CHARITABLE TRUST,
REG.NO.IV/34/14, PINDIMANNA KARA, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692.
3 M.N.SADASIVAN,
SECRETARY, SREE NARAYANA CHARITABLE TRUST,
PINDIMANNA KARA, REG.NO.IV/34/14, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692.
4 C.N.SADASIVAN,
PATRON, SREE NARAYANA CHARITABLE TRUST,
PINDIMANNA KARA, REG.NO.IV/34/14, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692.
5 K.K.SIVAN,
VICE PRESIDENT, SREE NARAYANA CHARITABLE TRUST,
PINDIMANNA KARA, REG.NO.IV/34/14, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692.
6 PREETHA GOPI,
TREASURER, SREE NARAYANA CHARITABLE TRUST,
PINDIMANNA KARA, REG.NO.IV/34/14, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692.
7 SHAILAJA THANKACHAN,
JOINT SECRETARY, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692.
8 MANJU A.V.,
COMMITTEE MEMBER, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692.
9 ASOKAN P.T.,
COMMITTEE MEMBER, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692. (DELETED)
C.R.P.No.841/2019
3
10 NITHIN M.S.,
COMMITTEE MEMBER, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692. (DELETED)
11 KUMARI RAJAN,
COMMITTEE MEMBER, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692. (DELETED)
(RESPONDENTS R9, R10, R11 IS DELETED FROM THE
PARTY ARRAY AT THE RISK OF THE PETITIONER AS
PER THE ORDER DATED 15.10.2020 IN IA NO.3/2020)
12 MURALI A.R.,
MANAGER, SREE NARAYANA CHARITABLE TRUST,
PINDIMANNA KARA, REG.NO.IV/34/14, PINDIMANNA
VILLAGE, KOTHAMANGALAM TALUK - 686 692.
13 A.K.SURESH,
ASSISTANT MANAGER, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692.
14 RANJU BIJU,
ASSISTANT MANAGER, SREE NARAYANA CHARITABLE
TRUST, PINDIMANNA KARA, REG.NO.IV/34/14,
PINDIMANNA VILLAGE, KOTHAMANGALAM TALUK - 686
692.
R1-6, R14 BY ADV. DR.GEORGE ABRAHAM
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 27.10.2020, THE COURT ON 10.11.2020 PASSED THE FOLLOWING:
C.R.P.No.841/2019
4
R.NARAYANA PISHARADI, J
************************
C.R.P.No.841 of 2019
-------------------------------------------------
Dated this the 10th day of November, 2020
ORDER
The petitioners are the plaintiffs and the respondents are the defendants in the suit O.S.No.131/2019 on the file of the Munsiff's Court, Muvattupuzha.
2. The suit is instituted against the first defendant, which is a trust by name Sree Narayana Charitable Trust (hereinafter referred to as 'the Trust') and its office bearers. The crux of the material averments in the plaint are the following: The first defendant is a private charitable trust. The second and the third defendants are the President and the Secretary of the Trust. Defendants 4 to 11 are the committee members of the Trust and defendant 12 to 14 are the officers of the Trust. The plaintiffs are life members of the Trust. The second and the third defendants have constructed a building in the property purchased by the Trust without obtaining any building permit. They are C.R.P.No.841/2019 5 managing the affairs of the Trust in a totally arbitrary and biased manner. They do not maintain accounts. The activities of the Trust are conducted without obtaining the licence or permit of the authorities concerned. The second and the third defendants have not paid the salary to the first plaintiff. The chitty amount due to the first and the second plaintiffs is not paid to them. The second and the third defendants issued letters dated 30.10.2018 to the plaintiffs, terminating their membership in the Trust. The second and the third defendants have no authority to do so and such act was done in violation of the bye-law of the Trust. Even though the Trust was created as a charitable trust for charitable purposes, the second and the third defendants are collecting money for the services of the Trust and appropriating it for their personal gain. They are managing the affairs of the Trust in total violation of the trust deed. The election to the managing committee of the Trust has not been conducted. It is necessary to remove defendants 2 to 11 from the administration and management of the Trust. It is also necessary to prepare a scheme for the administration and management of the Trust. C.R.P.No.841/2019 6
3. The following are the reliefs claimed in the suit.
"a. Pass a decree declaring that the plaintiffs are the trustees and beneficiaries of the 1 st defendant trust and is entitled to continue as trustees and beneficiaries with all the rights and privileges as trustees and beneficiaries.
b. Pass a decree removing the defendants No.1 to 11 from the management and administration to the 1st defendant trust.
c. Pass a decree settling a scheme for the management and administration of the 1 st defendant trust.
d. Pass a decree declaring that clause No.20 of the trust deed is invalid and inconsistent with clause No.21 of the trust deed/bye-law.
e. Pass such other decree, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
f. Allow the cost of the suit to the plaintiffs."
4. The plaintiffs filed an application as I.A.No.903/2019 in the trial court for issuing a direction to defendants 1 to 11 to allow the plaintiffs to act as trustees and beneficiaries of the Trust.
5. Defendants 1 to 6, 8, 13 and 14 filed objection to the above application raising various contentions. One among the C.R.P.No.841/2019 7 contentions raised by them was that the first defendant is a trust created for charitable and religious purposes and therefore, the suit would come within the ambit of Section 92 of the Code of Civil Procedure, 1908 (for short 'the Code') and is not maintainable before the Munsiff's Court.
6. As per the order dated 14.10.2019 in I.A.No.903/2019, the court below found that the first defendant is a public trust and the suit instituted by the plaintiffs would come within the ambit of Section 92 of the Code and therefore, the suit is not maintainable. The court below did not consider the interlocutory application on merits in view of this finding but dismissed the suit itself as not maintainable.
7. The plaintiffs have filed this revision petition challenging the aforesaid order passed by the court below.
8. Heard learned counsel for the petitioners and also the contesting respondents.
9. Learned counsel for the petitioners contended that the first defendant is a private trust and that the plaintiffs have instituted the suit to vindicate their private rights and therefore, the court below has gone wrong in finding that the suit would C.R.P.No.841/2019 8 come within the ambit of Section 92 of the Code and that it is not maintainable. Learned counsel for the petitioners further contended that, the lower court should not have passed an order dismissing the suit itself, in the interlocutory application filed by the plaintiffs.
10. Per contra, learned counsel for the contesting respondents submitted that the objectives of the Trust mentioned in its bye-law would clearly show that it is a trust created for public purposes of charitable nature and therefore, it is a public trust and the suit instituted by the plaintiffs would come within the scope of Section 92 of the Code.
11. Section 92 of the Code deals with public charities. Sub-section (1) of Section 92 provides that, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the Principal Civil Court of original jurisdiction or in any other Court C.R.P.No.841/2019 9 empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject - matter of the trust is situated to obtain a decree for any of the reliefs set out in clauses (a) to (h).
12. Clauses (a) to (h) of sub-section (1) of Section 92 of the Code read thus:
"(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require."C.R.P.No.841/2019 10
13. Public trusts for charitable and religious purposes are run for the benefit of the public. No individual should take benefit from them. If the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. The harassment might dissuade respectable and honest people from becoming trustees of public trusts. This is the reason for providing that leave of the court shall be obtained for institution of a suit under Section 92 of the Code.
14. A suit under Section 92 of the Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is only when these conditions are fulfilled that a suit could be brought in conformity with the provision of Section 92 of the Code. If the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper C.R.P.No.841/2019 11 administration of the trust, the very foundation of a suit under the section would fail (See Pragdasji Guru v. Ishwarlalbhai :
AIR 1952 SC 143).
15. Even if all the other ingredients of a suit under Section 92 of the Code are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 of the Code. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights. In deciding whether a suit falls within Section 92 of the Code, the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. It is quite immaterial whether the trustees pray C.R.P.No.841/2019 12 for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92 of the Code. It is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons (See Swami Parmatmanand Saraswati v. Ramji Tripathi : AIR 1974 SC 2141).
16. In the suit against public trusts, if on analysis of the averments contained in the plaint it transpires that the primary object behind the suit is the vindication of individual or personal rights of some persons an action under the provision does not lie. When the plaintiffs do not sue to vindicate the right of the public but seek a declaration of their individual or personal rights or the individual or personal rights of any other persons or persons in whom they are interested, Section 92 of the Code has no application. To put it differently, it is not every suit claiming reliefs specified in Section 92 that can be brought under the Section; but only the suits which besides claiming any of the C.R.P.No.841/2019 13 reliefs are brought by individuals as representatives of the public for vindication of public rights. The court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit is brought (See Vidyodaya Trust v. Mohan Prasad : AIR 2008 SC 1633).
17. It is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92 of the Code. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 of the Code must be dismissed (See Swami Parmatmanand Saraswati v. Ramji Tripathi : AIR 1974 SC 2141). The maintainability of the suit under Section 92 of the Code depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement (See Charan Singh v. Darshan Singh : AIR 1975 SC 371).
C.R.P.No.841/201914
18. The three essential conditions to be satisfied to invoke Section 92 of the Code are : (i) the trust is created for public purposes of a charitable or religious nature, (ii) there was a breach of trust or a direction of the Court is necessary in the administration of such a trust, and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three conditions is not satisfied, the suit falls outside the scope of Section 92 of the Code (See Bishwanath v. Thakur Radha Ballabhji : AIR 1967 SC 1044, Sugra Bibi v. Hazi Kummu Mia : AIR 1969 SC 884 and Ashok Kumar Gupta v. M/s. Sitalaxmi Sahuwala Medical Trust : (2020) 4 SCC 321).
19. In the instant case, the court below has considered the question whether the first defendant is a trust created for public purposes of a religious or charitable nature. However, the court below has not properly considered the applicability of the second and the third conditions mentioned above to the suit to find out whether it would come within the ambit of Section 92 of the Code.
20. Of course, the court below has extracted in its order the reliefs sought by the plaintiffs in the suit and found that "it is C.R.P.No.841/2019 15 crystal clear that the suit is one coming within the ambit of Section 92(1)(a), (c), (cc), (g) and (h) of the CPC, provided it is in respect of a public trust and suit is filed alleging breach of such trust." Thereafter, the court below proceeded to consider whether the first defendant Trust is one created for public purposes of a charitable or religious nature and answered that question in the affirmative on the basis of the objectives of the trust mentioned in the bye-law of the trust.
21. But, as held by the Apex Court in Swami Parmatmanand Saraswati (supra) and Vidyodaya Trust (supra), it is not every suit claiming the reliefs specified in Section 92 of the Code that can be brought under the section but only the suits which, besides claiming any of such reliefs, are brought by individuals as representatives of the public for vindication of public rights. In deciding whether a suit falls within Section 92 of the Code, the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit is brought. The court below has not considered the question in this perspective. C.R.P.No.841/2019 16
22. Further, the court below also did not consider, on the basis of the averments in the plaint, whether the plaintiffs have alleged breach of trust on the part of the defendants or whether they have pleaded that direction of the Court is necessary for the administration of the first defendant Trust.
23. In the aforesaid circumstances, the question whether the suit would come within the ambit of Section 92 of the Code has to be considered afresh by the court below. The court below has not considered the application I.A.No.903/2019 on merits in view of its finding that the suit would come within the ambit of Section 92 of the Code. It follows that the court below has to consider the interlocutory application afresh and dispose of it in accordance with law.
24. In view of the above order proposed to be passed by this Court in this revision petition, this Court does not intend to express any opinion on the finding made by the court below that the first defendant is a public trust. The parties are at liberty to agitate the entire matter afresh before the court below including the question whether the first defendant is a public trust or not. However, it is to be pointed out that, in paragraph 13 of the C.R.P.No.841/2019 17 plaint, the plaintiffs have admitted that the Trust was created as a charitable trust for charitable purposes.
25. At this juncture, it is to be pointed out that the court below has committed an illegality in dismissing the suit itself by virtue of an order passed in an interlocutory application filed by the plaintiffs. In the application I.A.No.903/2019, before considering the question whether the relief sought by the plaintiffs in that application could be allowed or not, it would be necessary for the court below to make a prima facie finding as to whether the suit is maintainable or not. But, on the basis of such a prima facie finding made for the purpose of deciding an interlocutory application, the court shall not by an order passed in such application, dismiss the suit itself. Of course, the court can try the question of maintainability of the suit as a preliminary issue under Order XIV Rule 2(2) of the Code, provided the conditions mentioned therein are satisfied.
26. Consequently, the revision petition is allowed and the impugned order is set aside. The suit is restored to the file of the court below. The application I.A.No.903/2019 is remitted for fresh consideration by the court below in accordance with law in C.R.P.No.841/2019 18 the light of the observations made in this order.
27. Since the petitioners have deleted some of the respondents/defendants from the array of parties in the revision petition at their own risk, no direction is made for the appearance of the parties in the court below on any specific date. All interlocutory applications pending in this revision petition are closed.
(sd/-) R.NARAYANA PISHARADI, JUDGE jsr APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE TRUST DEED DATED 1/03/2014 OF THE 1ST DEFENDANT.
ANNEXURE A2 TRUE COPY OF THE PLAINT DATED 25/02/2019 IN O.S.NO.131/2019 OF THE MUNSIFFS COURT, MUVATTUPUZHA.
ANNEXURE A3 TRUE COPY OF IA NO.903/2019 IN
O.S.NO.131/2019 OF MUNSIFF'S COURT,
MUVATTUPUZHA.
ANNEXURE A4 TRUE COPY OF THE OBJECTION DATED 04/04/2019
IN I.A.NO.903/2019 IN O.S.NO.131/2019 OF
THE MUNSIFF'S COURT, MUVATTUPUZHA.
RESPONDENTS' EXHIBITS : NIL
TRUE COPY
PS TO JUDGE