Bangalore District Court
Dr. J. Perumal vs Sri. J. Venkatesan on 6 March, 2023
1 O.S.No.25132/2010
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil)
AT MAYOHALL UNIT, (CCH-29)
Title sheet for BANGALORE.
Judgment in suits
(R.P.91)
Present: Sri. K.M. Rajashekar, B.Sc., LL.M.,
Dated: This the 6th day of March 2023
Original suit No.25132/2010
Plaintiffs:- 1. Dr. J. Perumal,
S/o M. Jayaram Naidu,
Aged about 50 years,
2. Smt. P. Vanaja,
W/o Dr. J. Perumal,
Aged about 41 years,
Both are residing at No.14/2,
Mariamman Temple Street,
Jayabharath Nagar,
Bangalore-560 033.
(By Pleader : Sri. HRA Adv.,)
V/s
Defendants:- 1. Sri. J. Venkatesan,
S/o M. Jayaram Naidu,
Aged about 45 years,
Residing at No.14/2, 2nd Floor,
Mariamman Temple Street,
Jayabharath Nagar,
Bengaluru-560 033.
2 O.S.No.25132/2010
2. Sri. J. Venkataramaiah,
S/o M. Jarayam Naidu,
Aged about 48 years,
Residing at No.61, First Floor,
Jayapuram, St. Anne's School,
Marakkanam Main Road,
Tindivanam Taluk,
Tamil Nadir.
3. Sri. P. Sampathkumar Mohan,
No.14/2, Mariamman Temple Street,
Jayabharath Nagar,
Bengaluru-560 033.
(Pleader by: Sri. NAV Adv., for D.1, D.2,
Sri.VK Adv., for D.3)
Date of Institution of the suit 23.1.2010
Nature of the (Suit or pro-note, suit for
declaration and possession, suit for Declaration &
injunction, etc.) Injunction
Date of the commencement of 6.12.2019
recording of the Evidence
Date on which the Judgment was 6.3.2023
pronounced
Year/s Month/s Days
Total duration 13 1 13
JUDGMENT
This is a suit filed by the Plaintiffs against the Defendants praying to declare the Deed of Trust in 3 O.S.No.25132/2010 the name of Sri. Srinivasa Education and Cultural Trust dtd: 11.6.2003 registered as Document No.182 of Book-IV of 2003-2004 in the office of the Sub- Registrar, Shivajinagar, is illegal and void and for permanent injunction restraining the Defendants from claiming to be the Trustees or seek any relief on the basis of the alleged Deed of Trust and for costs and other reliefs.
2. The brief facts of the case of the Plaintiff are as follows:-
(i) It is stated that A Trust under the name and style of Sri. Srinivasa Educational and Cultural Trust has been formed, registered in the office of the Sub-
Registrar, Shivajinagar, Bengaluru on 11.6.2003. The Trustees are all the parties along with P.Sampathkumar Mohan, the Defendant No.3 herein a minor, at the time of formation of Trust. The Trust is the tenant in respect of a portion of building bearing 4 O.S.No.25132/2010 Sy.No.724-9, (Survey No.9), Bilishivale, Dodda Gubbi Post, Bengaluru and the owner of the property is 1 st Plaintiff Dr. J. Perumal. The Trust is called as Sri. Srinivasa Educational and Cultural Trust and its office is located at No.14/2, Mariamman Temple Street, Jayabharath Nagar, Bangalore-560 033.
(ii) The Plaintiffs are running educational institution under the name and style Sri. Vidhya Nikethan School and a School under the name and style Jayaram Educational and Cultural Trust. The courses conducted are upto 10th Standard. Sri. P. Sampathkumar Mohan is son of Sri. J. Perumal and Smt. Vanaja, their marriage took place on 25.9.1985. The Defendant No.3 was born in the C.S.I Church of South India Hospital, Bangalore on 15.2.1987. A certificate has been issued by C.S.I Church of South India Hospital, Bangalore on 20.7.1999. His birth is shown as 15.2.1987. The intimation is furnished on 18.2.1987. The birth of a male child has been 5 O.S.No.25132/2010 indicates. The Plaintiffs have only child viz., P.Sampathkumar Mohan. The Defendant No.3 has completed S.S.L.C in March 2003. His date of birth is reflected in the S.S.L.C Marks Card as 15.2.1987. P. Sampathkumar Mohan was a minor at the date when Trust came into existence viz., 2003. No permission of the Principal Civil Court of Original Jurisdiction has been obtained by the parties to induct a minor. In the Trust Deed he is shown as a Major, which is a bonafide mistake. All the parties knew that he was a minor. There cannot be an estoppel against truth.
(iii) The Defendant No.1 and 2 have not functioned as Trustees at all. On the other hand, they have disclaimed that they are Trustees. They have not been functioning as said, though Defendant No.1 is named as Trustee, he did not function at all. Both of them disclaimed being Trustees. On the other hand, they have initiated a suit in 6 O.S.No.25132/2010 O.S.No.26013/2008 for partition and separate possession of their share of properties including properties, which is leased in favour of the Trust.
(iv) The Plaintiffs have filed Misc.No.678/2009 seeking opinion by the Learned Principal City Civil & Sessions Judge at Bangalore on two questions as under:
1) Whether Respondent No.1 and 2 have disclaimed that they are Trustees of the Trust?
2) Whether the Trust is valid in the eyes of law?
The Defendants contended in the course of objection that the scope of Section 34 of the Trust Act is limited and therefore, the petition is not maintainable. It is admitted that Sri. Sampathkumar Mohan was a minor and therefore, in view of the admission, the Trust itself is illegal. Hence, prayed to decree the suit.
7 O.S.No.25132/2010
3. In pursuance of the suit summons, the Defendant No.1 to 3 have appeared through their Counsels and filed their written statements.
4. The Defendant No.1 and 2 in their written statement specifically denied the plaint averments and contended that the suit filed by the Plaintiffs is frivolous, vexatious and the same is filed by suppressing the material facts, therefore, the same is liable to be dismissed. The Plaintiffs have no locus to file the above noted case and hence the same is liable to be dismissed at the very threshold itself. The Plaintiffs themselves have inducted their son the 3rd Defendant herein as one of the Trustee of "Shri Srinivasa Educational and Cultural Trust" and also have shown him as a major and now when there is a dispute between the Plaintiffs and the Defendant No.1 and 2 with regard to partition of the joint family properties the Plaintiffs with a malafide intention and just to harass the Defendant No.1 and 2, now that 8 O.S.No.25132/2010 too after a lapse of seven years from the date of constitution of the trust asserts that; the 3rd Defendant was minor at time when the Trust was created. All these years the 1st Plaintiff being a Secretary and the 2nd Plaintiff being a Member of the aforesaid Trust kept quite (and renounced their right to sue for declaration as claimed under this suit) and now when there is a dispute between the brothers i.e., 1st Plaintiffs and Defendant No.1 and 2, the Plaintiffs have filed this suit with a malafide intention alleging the trust was not validly created. It is relevant to state that the Plaintiffs all these years have reaped the benefits of the alleged illegal trust and now the moment when there is a serious dispute between the parties the Plaintiffs prefers this suit with a malafide intention to deprive Defendant No.1 and 2 their legal rights accrued in the trust. The action and inaction of the Plaintiffs amounts to approbate and reprobate the things which are 9 O.S.No.25132/2010 impermissible in the eye of law. Therefore, the suit is liable to be dismissed. The Plaintiffs have not come before this Hon'ble Court with clean hands and for bonafide cause. Therefore, the suit is liable to be dismissed on this ground alone. The suit is hopelessly barred by limitation and therefore the Defendants are filing a separate application to that extent on that ground alone the suit can be dismissed with exemplary cost. The Defendants have specifically denied the averments made in the plaint. Hence, prayed to dismiss the suit.
5. The Defendant No.3 filed the written statement specifically admitted the plaint averments and hence, prayed to decree the suit.
6. Based on the aforesaid pleadings this Court has framed the following issues:-
1) Whether the Plaintiff proves that, the Defendant No.3 being a minor who was admitted to the trust deed 10 O.S.No.25132/2010 dated: 11.6.2003 is illegal, void & non-est?
2) Whether the Plaintiffs are entitle for permanent injunction?
3) Whether the suit is barred for
limitation?
4) What order or decree?
7. To prove the case of the Plaintiffs, the Plaintiff No.1 got examined as P.W.1 and got marked Ex.P.1 to Ex.P.9 documents. The Defendant got examined himself as DW.1 and got marked Ex.D.1 to Ex.D.16 documents and closed his side.
8. Heard both sides and perused the written arguments filed by Plaintiff and Defendant No.1 and
2.
9. My answers to the above issues are as follows:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : In the Affirmative.11 O.S.No.25132/2010
Issue No.4 : As per final orders for the following:
REASONS
10. Issues No.1 to 4:- These issues are inter- related, hence, answered in common, in order to avoid repetition of facts.
11. The nutshell of the Plaintiff's case is that, Sri. Srinivasa Educational and Cultural Trust has been registered on 11.6.2003. The Trustees are all the parties to this suit, including the Defendant No.3 who was minor at the time of formation of Trust. The Plaintiffs are running Vidhya Nikethan School under the Jayaram Educational and Cultural Trust. Sri. P. Sampathkumar Mohan is the only son of Plaintiffs, their marriage took place on 25.9.1985. The Defendant No.3 was born in the C.S.I Church of South India Hospital, Bangalore on 15.2.1987. His date of birth is reflected in the S.S.L.C Marks Card as 15.2.1987. No permission of the Principal Civil Court 12 O.S.No.25132/2010 of Original Jurisdiction has been obtained by the parties to induct a minor. In the Trust Deed he is shown as a Major, which is a bonafide mistake. All the parties knew that he was a minor. Though Defendants named as Trustee, he did not function at all. Both of them disclaimed being Trustees.
12. The Defendant No.1 and 2 contended that the Plaintiffs themselves have inducted their son the 3rd Defendant as one of the Trustee of "Shri Srinivasa Educational and Cultural Trust" and also have shown him as a major and now when there is a dispute with regard to partition of the joint family properties the Plaintiffs after a lapse of seven years with a malafide asserts that; the 3rd Defendant was minor at time when the trust was created. All these years the 1 st Plaintiff being a Secretary and the 2 nd Plaintiff being a Member of the aforesaid trust kept quite and have reaped the benefits of the alleged illegal trust. The action and inaction of the Plaintiffs amounts to 13 O.S.No.25132/2010 approbate and reprobate the things which are impermissible in the eye of law. The suit is hopelessly barred by limitation etc.
13. During the course of cross-examination Plaintiff has admitted the following facts:
£À£Àß ªÀÄUÀ ¸ÀA¥ÀvïPÀĪÀiÁgï M§â læ¹Ö ªÀÄvÀÄÛ ReÁAa JAzÀgÉ ¸Àj. ¤¦-1 gÀ ¢£ÁAPÀzÀAzÀÄ £À£Àß ªÀÄUÀ¤UÉ 17 ªÀµÀð ªÀAiÀĸÁìVvÀÄÛ ¤¦- 1 gÀ°è £À£Àß ªÀÄUÀ£À ªÀAiÀĸÀÄì 19 ªÀµÀð JAzÀÄ PÁtô¹zÉÝÃªÉ JAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ............ 2003 jAzÀ 2008 gÀªÀgÉUÉ ¤¦-1 gÀ DzÁgÀzÀ ªÉÄÃ¯É «zÁå¤PÉÃvÀ£À ±Á¯É £ÀqÉAiÀÄÄwÛvÀÄÛ JAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦- 1 gÀ læ¹Ö£À°è £Á£ÀÄ PÁAiÀÄðzÀ²ðAiÀiÁV PÉ®¸À ªÀiÁqÀÄwÛzÉÝãÉ. 1£Éà ¥ÀæwªÁ¢AiÀÄÄ læ¹Ö DVzÀzÀ JAzÀgÉ ¸Àj. ¤¦-1 gÀ°è 1£Éà ¥ÀæwªÁ¢ læ¸ïÖ£À CzÀåPÀë JAzÀÄ £ÀªÀÄÆzÁVzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. «zÁå¤PÉÃvÀ£À ±Á¯É ªÀw¬ÄAzÀ £ÁªÀÅ DzÁAiÀÄ vÉjUÉ PÀnÖ®è. ¤¦-1 gÀ°è J¯Áè læ¹ÖUÀ¼ÀÄ £ÀªÀÄä PÀÄlÄA§¸ÀÜgÉà JAzÀgÉ ¸Àj. ........... 1 ªÀÄvÀÄÛ 2£Éà ¥ÀæwªÁ¢AiÀÄgÀÄ læ¸ïÖ¤AzÀ ºÉÆgÀUÀqÉ ºÁPÀ®Ä AiÀiÁªÀÅzÉà PÀæªÀÄ PÉÊUÉÆAr®è. ¤¦-7 gÀ°è ¸ÀA¥ÀvïPÀĪÀiÁgï ªÉÄÊ£Àgï JAzÀÄ J°èAiÀÄÆ ºÉý®è JAzÀgÉ ¸ÀjAiÀÄ®è. ..FUÀ £À£ÀUÉ vÉÆÃj¹zÀ zÁR¯É £À£Àß ªÀÄUÀ¤UÉ ¸ÀA§AzÀ¥ÀlÖzÀÄÝ JAzÀgÉ ¸ÀjAiÀÄ®è. ¢B 18-3-2004 gÀAzÀÄ £À£Àß ªÀÄUÀ vÀ£ÀUÉ 18 ªÀµÀð DVzÉ JAzÀÄ ºÉý rJ¯ï PÉJ-0320040022358 C£ÀÄß ¥ÀqÉzÀÄPÉÆArzÁÝ£É JAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀzÀj zÁR¯ÉAiÀÄ£ÀÄß £ÉÆÃrzÁUÀ ¤¦-1 gÀ ¢£ÁAPÀzÀAzÀÄ £À£Àß ªÀÄUÀ ªÀAiÀĸÀÌ£ÁVzÁÝ£É JAzÀÄ RavÀªÁUÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. £À£Àß ªÀÄUÀ£À rJ¯ï UÉ ¸ÀA§AzÀ¥ÀlÖAvÉ ¨Át¸ÀªÁr ¥Éǰøï oÁuÉAiÀÄ°è zÀÆgÀÄ zÁR¯ÁVzÉ JAzÀgÉ ¸Àj.
14. The Defendant in his cross-examination admitted that:
There is no property in the name of Trust. There is no income for the said trust. Witness volunteers that it is formed for service. I have not gone through contents of Ex. P1. I don't know 14 O.S.No.25132/2010 what all documents referred to mention the age in Ex.P1. Witness volunteers that it is all done by Plaintiff No 1. It may be true that as per birth certificate Ex.P3 Defendant No 3 born on
15.02.1987. I don't know if you suggest that his age was wrongly mentioned as 19 years in Ex.P1.
15. At this stage it is useful to to have a look at the relevant provisions of Trust act:
7.Who may create trusts.--A trust may be created--
(a) by every person competent to contracts1, and (b)with the permission of a principal Civil Court of original jurisdiction, by or on behalf of a minor;but subject in each case to the law for the time being in force as to the circumstances and extent in and to which the author of the trust may dispose of the trust-property.
8. Subject of trust.--The subject-
matter of a trust must be property transferable to the beneficiary. It must not be a merely beneficial interest under a subsisting trust.
9. xxxxxxxxx 15 O.S.No.25132/2010
10. Who may be trustee.--Every person capable of holding property may be a trustee; but,where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract.
No one bound to accept trust.--No one is bound to accept a trust.
Acceptance of trust.--A trust is
accepted by any words or acts of the
trustee indicating with reasonable
certainty such acceptance.
Disclaimer of trust.--Instead of
accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such disclaimer shall prevent the trust-property from vesting in him.
A disclaimer by one of two or more co-trustees vests the trust-property in the other or others, and makes him or them sole trustee or trustees from the date of the creation of the trust.
16(d) for any of those purposes, enter into, give, execute and do such agreements, instruments of composition or arrangement, releases and other things as to them seem expedient, without being responsible for any loss occasioned by any act or thing so done by them in 16 O.S.No.25132/2010 good faith. The powers conferred by this section on two or more trustees acting together may be exercised by a sole acting trustee when by the instrument of trust, if any, a sole trustee is authorized to execute the trusts and powers thereof. This section applies only if and as far as a contrary intention is not expressed in the instrument of trust, if any, and shall have effect subject to the terms of that instrument and to the provisions therein contained. This section applies only to trusts created after this Act comes into force.
44. Power to several trustees of whom one disclaims or dies.--When an authority to deal with the trust-property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees, unless from the terms of the instrument of trust it is apparent that the authority is to be exercised by a number in excess of the number of the remaining trustees.
45. Suspension of trustee's powers by decree.--Where a decree has been made in a suit for the execution of a trust, the trustee must not exercise any of his powers except in conformity with 17 O.S.No.25132/2010 such decree, or with the sanction of the Court by which the decree has been made, or, where an appeal against the decree is pending, of the Appellate Court.
68. Liability of beneficiary joining in breach of trust.--Where one of several beneficiaries--(a)joins in committing breach of trust, or (b) knowingly obtains any advantage therefrom, without the consent of the other beneficiaries, or(c)becomes aware of a breach of trust committed or intended to be committed, and either actually conceals it, or does not within a reasonable time take proper steps to protect the interests of the other beneficiaries, or(d)has deceived the trustee and thereby induced him to commit a breach of trust,the other beneficiaries are entitled to have all his beneficial interest impounded as against him and all who claim under him (otherwise than as transferees for consideration without notice of the breach) until the loss caused by the breach has been compensated. When property has been transferred or bequeathed for the benefit of a married woman, so that she shall not have power to deprive herself of her beneficial interest, nothing in this section 18 O.S.No.25132/2010 applies to such property during her marriage.
69. Rights and liabilities of beneficiary's transferee.--Every person to whom a beneficiary transfers his interest has the rights, and is subject to the liabilities, of the beneficiary in respect of such interest at the date of the transfer.
VACATING THE OFFICE OF TRUSTEES
70. Office how vacated.--The office of a trustee is vacated by his death or by his discharge from his office.
71. Discharge of trustee.--A trustee may be discharged from his office only as follows:--(a)bythe extinction of the trust;
(b) by the completion of his duties under the trust;
(c) by such means as may be prescribed by the instrument of trust;
(d) by appointment under this Act of a new trustee in his place;
(e) by consent of himself and the
beneficiary, or, where there are more
beneficiaries than one, all the
beneficiaries being competent to contract;
or
19 O.S.No.25132/2010
(f) by the Court to which a
petition for his discharge is presented
under this Act.
72. Petition to be discharged from
trust.--Notwithstanding the provisions of section 11, every trustee may apply by petition to a principal Civil Court of original jurisdiction to be discharged from his office; and if the Court finds that there is sufficient reason for such discharge,it may discharge him accordingly, and direct his costs to be paid out of the trust-property. But where there is no such reason, the Court shall not discharge him, unless a proper person can be found to take his place.
73. Appointment of new trustees on death, etc.--Whenever any person appointed a trustee disclaims, or any trustee, either original or substituted, dies, or is for a continuous period of six months absent from 1[India], or leaves 1[India] for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal Civil Court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an 20 O.S.No.25132/2010 inconsistent trust, a new trustee may be appointed in his place by--(a) the person nominated for that purpose by the instrument of trust (if any), or (b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and competent to contract, or the surviving or continuing trustees or trustee for the time being, or legal representative of the last surviving and continuing trustee, or (with the consent of the Court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee.
Every such appointment shall be by writing under the hand of the person making it. On an appointment of a new trustee the number of trustees may be increased. The Official Trustee may, with his consent and by the order of the Court, be appointed under this section, in any case in which only one trustee is to be appointed and such trustee is to be the sole trustee. The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a 21 O.S.No.25132/2010 continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power.
74. Appointment by Court.--
Whenever any such vacancy or disqualification occurs and it is found
impracticable to appoint a new trustee under section 73, the beneficiary may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for the appointment of a trustee or a new trustee, and the Court may appoint a trustee or a new trustee accordingly. Rule for selecting new trustees.--In appointing new trustees, the Court shall have regard
(a)to the wishes of the author of the trust as expressed in or to be inferred from the instrument of trust;
(b) to the wishes of the person, if any, empowered to appoint new trustees;
(c) to the question whether the appointment will promote or impede the execution of the trust; and
(d) where there are more beneficiaries than one, to the interests of all such beneficiaries.
75. Vesting of trust-property in new trustees.--Whenever any new trustee 22 O.S.No.25132/2010 is appointed under section 73 or section 74, all the trust-property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require. Powers of new trustees.--Every new trustee so appointed, and every trustee appointed by a Court either before or after the passing of this Act, shall have the same powers, authorities and discretions, and shall in all respects act, as if he had been originally nominated a trustee by the author of the trust.
76. Survival of trust.--On the death or discharge of one of several co- trustees, the trust survives and the trust- property passes to the others, unless the instrument of trust expressly declares otherwise.
16. Upon careful perusal of materials on record, it is seen that, according to the Plaintiff Sri. Srinivasa Educational and Cultural Trust has been formed, 23 O.S.No.25132/2010 registered on 11.6.2003. The Trustees are all the parties to this litigation. The Defendant No.3 who was minor at the time of formation of Trust. No permission of the Principal Civil Court of Original Jurisdiction has been obtained by the parties to induct a minor. Hence the Trust is non est etc. On the other hand the Defendant No.1 and 2 contended that the Plaintiffs themselves have inducted their son the 3rd Defendant as one of the Trustee and also have shown him as a major and now when there is a dispute with regard to partition of the joint family properties the Plaintiffs after a lapse of seven years with a malafide intention asserts that; the 3rd Defendant was minor. The suit is hopelessly barred by limitation etc.
17. Looking at the plaint averments, it indicates that this is a simple suit to declare the Deed of Trust in the name of Sri. Srinivasa Education and Cultural Trust is illegal and void and for permanent injunction 24 O.S.No.25132/2010 restraining the Defendants from claiming to be the Trustees or seek any relief on the basis of the alleged Deed of Trust. It indicates that the Plaintiff wanted the Defendant not to interfere with the affairs of Jayaram Educational Trust which is running a School. But looking at the case papers it indicates that the things are not as simple as that, much water has flown under the bridge and the parties have fought in every available forum including the Hon'ble High Court, Under Secretary, Writ Appeals, Original Suits, Miscellaneous Cases etc. The nutshell of the case of the Plaintiff's claim is that the parties to this litigation have formed one Sri. Srinivasa Educational Trust on 11.6.2003. According to the Plaintiff, as on that day, he was minor, hence the said Trust is void Trust. Consequently on 24.4.2008 the name of Sri. Srinivasa Educational Trust has changed as Jayaram Educational Trust excluding some of the Defendants as Trustees, which was challenged in 25 O.S.No.25132/2010 W.P.No.13974/2009 and a Review Petition R.P.No.27/2008 filed before the Under Secretary, another Writ Petition No.11735/2009 filed before the Hon'ble High Court. Later, against which Writ Appeal No.1998/2010 is filed before the Hon'ble High Court, wherein the Hon'ble High Court while disposing off the said Writ Appeal made following observation:
8. The material on record would show that the questions that are raised in the writ petition are the disputed questions of fact as to whether the name of Sri. Srinivasa Educational and Cultural Trust can be changed to Jayram Educational and Cultural Trust, whether the appellants have continued to be the trustees of Sri. Srinivasa Educational and Cultural Trust and whether Jayaram Educational and Cultural Trust can manage the educational institutions without applying for fresh recognition. All these disputed questions of fact are pending consideration as admittedly, both the appellants and contesting respondents have filed the suit. The contesting respondents have filed the suit alleging that the very formation of Sri. Srinivasa Educational and Cultural Trust was void and that Jayram Educational and Cultural Trust has been duly formed. The appellants have filed a suit for partition and separate possession including the trust property of Sri Srinivasa Educational and Cultural Trust which would necessarily involve a question as to whether Sri Srinivasa Educational and Cultural Trust was validly formed, whether formation of Jayram Educational and Cultural Trust is valid and whether appellants are continued to be the trustees in the new trust. Therefore, having regard to the limited scope of exercise of the writ jurisdiction of this Court, the said disputed questions of fact 26 O.S.No.25132/2010 cannot be gone into and it is necessary to consider the said question as to whether the contesting respondents can run the educational institution without making any application for fresh recognition as the said question would not arise for consideration in the writ petition and would depend upon the result of the suit. Accordingly, we hold that the order of the learned Single Judge relegating the parties to work out their remedies in the suit keeping open all the contentions urged in the suit is justified and does not suffer from any error or illegality so as to call for interference in this intra-Court appeal.
18. Looking at the above observation, it is seen that the Plaintiff has already filed a comprehensive suits in O.S.No.25132/2010 and O.S.No.26013/2008 another injunction suit in OS.No.25917 /11 which are pending before this Court and set down for Judgment simultaneously along with this suit. Looking at the way both the parties contesting the case, it is seen that much time of the Court is wasted in proving and disproving the fact that the Plaintiff is the minor at the time of formation of Sri. Srinivasa Educational Trust. A lengthy and unnecessary cross-examination was done on the same fact. The Learned Counsels for both the parties were not chisel back, they also put 27 O.S.No.25132/2010 all their intelligence and efforts in conducting the case. A lengthy arguments was canvassed by the Learned Counsels for months together in installments. But unfortunately none of the counsel attempted to assist the Court in briefing the facts which are relevant to the case on hand, rather they show their caliber by reading the pleadings and evidence and explaining it. Nothing worth is canvased in the oral argument except wasting the valuable time of the Court. The sum and the substance of the arguments of the counsel for one side is that Sampath kumar was minor at the time of formation of Srinivasa Education Trust. All the properties are not the joint family properties and it is self acquired properties of Perumal and cannot be partitioned. The other side argument was Sampath kumar Mohan was major at the time of formation of Srinivasa Education Trust. All the properties are joint family properties and it should be partitioned 28 O.S.No.25132/2010 between all the family members. Admittedly, the Plaintiff and Defendants were all Trustees. However, two comprehensive suits for partition and other major reliefs is already pending before this Court.
Looking at the way the parties are fighting it clearly indicates that they have least respect to justice dispensation system. They are simply making the mockery of the justice dispensation system. The attitude of the parties clearly indicates that they are making use of the Court as the tool to satisfy their vengeance and settle scores. From past one and half decade they are menace to the Court, used the Court as the battle ground and wasted the considerable time of the Court by filing case after the case. They have not left any forum to fight. It is to be noted that for the similar reliefs the parties to this litigation have filed W.P.No.13974/2009 and a Review Petition R.P.No.27/2008 filed before the Under Secretary, another Writ Petition No.11735/2009 filed before the 29 O.S.No.25132/2010 Hon'ble High Court. Later, against which Writ Appeal No.1998/2010 is filed before the Hon'ble High Court, filed a comprehensive suits in O.S.No.25132/2010 and O.S.No.26013/2008. Under these circumstances, I am of the opinion that this is a frivolous suit filed by the Plaintiffs just to add another litigation to the existing litigation to increase number of litigation.
19. Upon going through the provisions of Trust Act which is referred above, it is very clear that every person who is competent to hold the property can be trustee. Absolutely there is no bar for a minor to be a trustee. But what is requires is, the permission of Principal Civil Court of original jurisdiction is required. Here in the case, the Plaintiffs herein contended that since the Defendant No.3 was minor at the time of inducting him as a trustee the trust is null and void. As mentioned above, there is no bar for a minor to act as trustee. The admitted fact indicates that even though trust is formed on 11.6.2003 till filing of this 30 O.S.No.25132/2010 suit the Defendant No.3 already acted as a trustee by accepting it. The Plaintiffs tried to make out a case that the Defendant No.3 was minor at the time of formation of Trust Deed, umpteen number of documents were produced, the SSLC Marks Card and his Birth Certificate indicates that the Defendant No.3 was minor as on the date of the Trust registered. But, as mentioned above, the Defendant accepted the trusteeship after attaining the majority and continued his trusteeship for about seven years. Apart from that, even though the Defendants attempted to prove that the Defendant No.3 was major at the time of formation of Trust based on the Driving License of the Defendant No.3. But, it is significant here to note that there is a criminal case registered against the Defendant No.3 for giving false documents to obtain Driving License. However, looking at the provision of Section 46 of Trust Act, it is clear that a Trustee who has accepted the Trust 31 O.S.No.25132/2010 cannot afterwards renounce it, except with the permission of the Principal Civil Court of original jurisdiction, that means to say that the Defendant No.3 himself ought to have approach the Court if he really wants to renounce it. But, here in the case the Plaintiffs who were none other than the parents of the Defendant No.3 approached the Court to declare the trust as null and void. The Provision of Section 71 of Trust Act indicates that only under the category mentioned in A to F there could be discharge of Trustee. Apart from that Section 72 of Trust Act makes it very clear that the Trustee himself ought to have approach the Court for his discharge by offering sufficient reason. But, absolutely no reasons offered by the Plaintiffs herein to discharge them from Trusteeship. However, herein the case the Plaintiffs have not approached the Court for discharging them from Trusteeship, rather they want the entire Trust declared as null and void and the provisions of Trust 32 O.S.No.25132/2010 Act does not permit for such an act. It is also forthcoming from the Trust Act that mere discharge of one of the Trustee will not close the whole Trust. Rather, the other Trustees will continue to hold the office of Trust. Here in the case, even if the claim of the Plaintiff is admitted to be true, at the most the Defendant No.3 can be permitted to renounce from his Trusteeship, but that no way help the Plaintiffs to declare the whole Trust as null and void. Apart from that the Plaintiffs have approached the Court after lapse of 7 years. They had every knowledge that their son was minor as on the date of formation of trust hence the claim is barred by limitation also. Hence, I answer Issue No.1 and 2 in the Negative and issue No.3 in the Affirmative.
20. Issue No.4:- In the result, this Court proceeds to pass the following:-
ORDER The suit of the Plaintiffs is dismissed with costs.33 O.S.No.25132/2010
Draw decree accordingly.
[Dictated to the Stenographer directly on computer, corrected, signed and then pronounced by me in the open Court on this the 6th day of March 2023].
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
ANNEXURE
1. List of witnesses examined for the Plaintiff:-
P.W.1 : Dr. J. Perumal.
2. List of documents marked:-
Ex.P1 : Certified copy of Trust Deed dtd: 11.6.2003.
Ex.P.2 : Duplicate Birth Certificate dtd: 21.7.2017. Ex.P.3 : Birth Certificate of Plaintiff. Ex.P.4 : S.S.L.C. Marks Card.
Ex.P.5 : Certified copy of the Order dtd: 2.6.2009 passed in W.P.No.13974/2009.
Ex.P.6 : Certified copy of Petition in Mis.No.678/2009.
Ex.P.7 : Certified copy of objections filed in 34 O.S.No.25132/2010 Misc.No.678/2009.
Ex.P.8 : Certified copy of Order dtd: 31.3.2010 passed in Review Petition No.27/2008. Ex.P.9 : Certified copy of Judgment dtd: 1.2.2001 passed in W.P.No.1998/2010.
3. List of witnesses examined for the Defendant:-
DW.1 : J. Venkateshan.
4. List of documents marked:-
Ex.D.1 : Certified copy of Dl of 3rd Defendant. Ex.D.2 : Letter dtd: 4.12.2019 addressed to the Banaswadi Police Station.
Ex.D.3 : Certified copy of Plaint in O.S.No.25917/2011 dtd: 26.5.2011. Ex.D.4 : Certified copy of Corrigendum dtd:24.4.2008.
Ex.D.5 : Certified copy of Ration Card. Ex.D.6 : Certified copy of particulars of Government Servant.
Ex.D.7 : Certified copy of the Plaint in O.S.No.26013/2008.
Ex.D.8 : Certified copy of Order passed in W.P.No.4791/2012.
35 O.S.No.25132/2010Ex.D.9 : Certified copy of Written Statement filed in Misc.No.678/2009.
Ex.D.10 : Certified copy of amended Plaint in O.S.No.25917/2011.
Ex.D.11 : Certified copy of Written Statement filed in O.S.No.25917/2011.
Ex.D.12 : Certified copy of Trust Deed dtd:17.3.2008.
Ex.D.13 : Certified copy of Extract of Driving Licence of 3rd Defendant.
Ex.D.14 : Certified copy of DL of 3rd Defendant. Ex.D.15 : Certified copy of Proceedings of Licesing Authority Kasturinagar, Bangalore (East) dtd: 29.1.2020.
Ex.D.16 : Certified copy of the Order passed in W.P.No.1998/2010 dtd: 1.2.2011.
(K.M. Rajashekar) XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
36 O.S.No.25132/2010Judgment pronounced in the Open Court (Vide separate order) ORDER The suit of the Plaintiffs is dismissed with costs.
Draw decree accordingly.
[K.M. Rajashekar], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.