Karnataka High Court
Chandraiah Rachaiah Hiremath vs S Shashidhara S/O S Parameswaraiah on 24 December, 2010
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 24°" DAY OF DECEMBER , 2010 so THE HON'BLE MR. JUSTICE JAWAD RAHI m C/W CRP Nood OF 2004 IN CRP No. 3330/2003 BETWEEN Oy HIS: G. 7 mA HOLDER AGED ABC PETITE ONER S SEN EDE CEASED ON 21> L120 03, ute FOLL POW NING L/Rs BROUGHT ON RECORD; we Oy ; 'L.. SMT:NEELAMMA HIREMAT | AGED ABOUT 62 YEARS, WIFE OF LATE SRIC.R. HIREMATH Ly MAHESH HIREMAT AGED ABOUT 45 YEARS, OAD OF LATE SRI CLR REMATH " ) Soe Wn © 3, SMT MANJULA HIREMATH | AGED ABOUT 43 YEARS, DAUGHTER OF LATE SRI C.R.HIREMATH 4, MISS SADHANA HIREMATH, AGED ABOUT 37 YEARS, DAUGHTER OF LATE SRI C.R.HIREMAT ALL ARE RESIDING AT 257° WARD, RAGHAVANKA SWAMY MUTT, FO ORT BELLARY (BY SRE SAINATH AND SRI SUDHINDRANATH, ADYs) ' S.SHASHIDHARA D ABOUT 40 YEARS, ; )S: PARAMES WARATAH ... IMERCIAL A ARTISF, F oe oy AD mie ae CO Cy =
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2. SRI S.MsCHANDRa AGED ABOUT 45 ADVOCATE, | 2 1 Mi RIN "BLOCK RAIA? INAGAR." BANGALORE E.- "560 a1b.-
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3 SRI N.PAMRUTESH,"
AGED ABOUT 40 YEARS, S/O NP PUTTASWAMY, _O.NG.847, RAGHU WARD, . OFF ICE-ROAD, IL STAGE, BT BECK, RAJAJINAGAR, BANGALORE -- 560 010 4, SRIV.M.VISWANATH S/O MAHALINGAPPA, AGED ABOUT 35 YEARS R ANA MADABALU "HOBLL, N BANGALORE DIST RICT Bh,
5. JAGADGURU SRI CHANNABASAVA RAJENDRA MAHA SWAMIGALU, AGED ABOUT 71 YEARS, PEETADHIPATHI OF GAVIMUTT SAMSTHAN, URAVAKONDA, ANANTHAPUR DISTRICT 7 ANDHARA PRADESH AND AT ITS BANGALORE"
BRANCH AT NO.E/5, GIRLS SCHOOL STREET:
KUMARAPARK WEST, ae BANGALORE - 560 0270 a p RE B.S.MURALT. ADV., FOR.R MAHANTESH PATIL,.SRI SRI RAJSHEKKHAR BUR Ul, M/S INDIA LAW LINi OR R3,SRI C.LAKS HI INARA DAYANANADA, ADV. F POR Re SRI RUDRAPPA, ADV; FOR-R FILED BY THE 'PEVITIONER HEREIN U/S 1 REVOCATION ° oF FRE LEAVE GRANTED TO THE ro. INSTITUTE THE SUIT AND TO DISMIS "RESPONDENTS T IN.CRP Mo.4/2004 . BETWEEN:
on ANUBHAVA MANTAPA TRUST (R) 19, RES ERVOIR STRE Kf WEST, BANGALORE ~ 20 BY ITS SECRETARY,M.SHIVAPPA, AGED ABOUT 65 YEARS, ADVOCATE, ... PETITIONER (BY SRI YOGANARASIMHA, SR.ADV.,) a SRI SHASHIDHAR, MAJOR AGED ABOUT 55 YEARS, S/O PARAMESWARA AIAH, 38, 7 a "CROSS, a NEHRU NAGAR, BANGALORE - 270 rm ad el gy al ify.
7 xm a Ss MURALI, OY I SRE FN RODREE ASAD, ADVs., FOR R41, SRI LAKSHME NAR saa NA RAO, SRI R.SHOBHA, AND SRI H.S.DAYANANDA, ADVs., FOR R32, SRI MAUANTE HESH | PATIL, SRI R.C.NAGARAI AND SRI RAJASHEKHAR BURIT, ADVs FOR R2) "THIS CRP FILED U/S 115 OF CPC AGAINST THE ORDER be, THE SUTT AND TO DISMISS THE SUIT AS NOT MAINTAINABLE.
THESE PETITION's ARE HEARD, RESERVED. FOR ORDERS, COMING GN FOR DELIVERY OF ORDERS. THIS DAY, THE COURT MADE THE FOLLOWING:- smn order dated 20-10-2003 in OS.No. 962/1991 aro the file of bod ra os
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2. CRP. No 3330/2603 is. directed against [ne order reiecting TA-4i and is filed py the defendant No.2 in the suit, CRP 4/2004 js filed-against the order passed on [A-44 facts arises against the impugned order, both these petitions are.clubbed and taken up for final disposal.
&, ~ Heard the learned counsel Mr. Sainath and 'Phikaranes- movement that His Holness was in close comtact 6 4a. Refore | advert to the contentions CPt an my 3 CT whe Lon wat cor oO my = sides, a brief reference to factual matrix is necessary, which iS.
S.Shashidar, along with S.M.Chandrashekar,. filed suit > seeking various rellefs contending that they are the.
devotees of Veerashaiva and disciples of. defendant No.1 of His Holiness Jagadaurm: of Uravakunda. They alleged defendant No.l was crantecd two sites by tre City Improvement Yrust Boaru, Bangarore on 23-06-1952 to construct the .muth building for the propagation of veerasniva ~poflosop:
wd io . and. accordingly mult popularly known -as' 'Uruvakunoa Mult' care into existence under © : oo 5 dah.
control of Swanger.
alleged in the front ine by the Karnataka Ley posed er wo with many political stalwarts, one of them was Late "T Siddalingaian, former Minister in the Mysore Government, "They managed the trust with integrity. However, for social service the 1 defendant with an intent to conduct social wed activities in the mutt created the trust called 'Anubhava Mantapa Trust, Bangalore' in the year i955 under Presidentship of Late Swamiji, which unfortunately-did nat Function aS desired.
6 The trust was managed by the defendant No.1 in tne year 1991. But, registration of trust was also' cancelled by the District Registrar of the Sécieties by an defendants nad not taken. requisite. } religious functions-of the matt and jit-hed become abode far few unholy, people, who-are indulging in severa! activities se building is too meager in a.sum of Rs.3,500/- from different 2, 7 They further alleged that defendant No.1 is 73 years aid. increasingly bed ridden on account of diabetes and 'other 'ailments, In these circumstances, some vested . interest had obtained from him shan documents, like agreement of sale, Will, irrevocable power of attorney, etc., "Such documents were executed by the defendant No.i without Knowing its contents and involuntarily there was a threat that the property To seek prote "Settle a scheme to Sut schedule m property to of all the devotees of veerashaiv grant such other reliefs."
run and Vath the of the trust will be lo Therefore, St. tection of the trust they sought following' relief:
| administer the g r phey Appication for grant of leave as is requived. Dy S 92 CPC. The yeu 'granted: leave and Os: 962) 1994, in issuance ordered suit OF SLITITIONS inion ae "Anub nave Ne ust (Read.)', by its Secretary "4 Shige "fled application uncer Section 151 CPC seeking to recall tne said order granting leave poming oun fo (nem schiet and sinister design in filing of such suit in support of. the application defendant No.2 - trust alleged i. the suit as f filed was mischievous, collusive between the intiffs ard the dete ndant Nel.
property stands in the name of defendant No.2? and is being managed and controlled well. That defendant No.i has also fied eviction petition against some of the Ten nants, shi ch he schedule property was all ot tted by the. CIT in favour of the defendant No.1 subiect te condition, i as oe since defencant No.1 couldsnot put. uD construction 2th apprehending CITB may resume, site. com muni nity: members a approached leading | nenibers of the. con rimunity, who took preperty alotted-to Gefendant Noo was transferred to the vee trust. From the time of formation of the trust money was collected: in the forat-of "dor nations and buildings are put up i Bab oye rhe " sey 5 .
in tne. scnedihe property. ook Oe, The _defendant No.1 is settled elsewhere at Univakunds, Whenever he return from that place he was
- giver right to Stay in the prernises for life time. After trust ~ was created the property vests in the general public and is thus religious and charitable trust. The defendant No.1 has "fost his rwnership or exclusive right. However, defendant No.i has been making attempt to revoke the trust deed and deed. Tre said suit came toe be dismissed. coed noticing his adverse acts the defendant No.1 was dismissed to live in the portion of the property. of the setendant No.2. and as he had no income he was permitted to collect rents for his maintenance out-of symnachy. Taking advantage of the kind gesture of defendant No.2-- trust he has set up Draintiffs.
defendant. No.l. was. neiteer in management now was rustee. He We: womore the ownre ? the jiand PuUSCee. Me wes NO more the owner of the land because "after allotment by the CITB the property vests in the. trusts, for Ris dublous method in filing the suit and other proceedings he was not entitled te put forward any claim. The defendant No.2 further mentioned that during _ the proceedings in the suit the defendant No.i dled anc hence the suit abated against him. Since, in the suit main allegations were made against the trustees of the defendant No.2, the sull was able to be dismissed in limine.
12. Defendant No.2 further averred that n0-ground was made in the plaint to grant of leave as grant of leave'.
subiect to existence of facts and sireumstances ehumerated in Section 92 CPC. They alleged that the circun mstance St be considered for grant of lea fe embod ied in Section 92 oe oo oy fh a < fp oe a fh there is no ground worth acteptence for gran suit instituted was badthin law, it-further. urged as defendant
13. The defendant No.1i by his application in IA-44 sought dismissal of the. suit ton the same grounds as urge plaintiffs inthe st suit, which lead to serious contest.
bee i In suppert of mis contentions that the suif as ~ prayed was not maintainable Sri Sainath fearned counsel i ni Howing decisions:
has relied on the following decisions "4. Praqdasii Guru Bhaqwandasiji Vv.
Ishwarlalbhai Narsibhai and others Reparted in ATR 1952 SC 143 2, Parmatmanand Saraswati v. R. Tripabhi.
a Chettiar Reported in AIR 1991 SC 224, VM. Mohamed Jamaludeen & i. Sunil Vasudeva and others v. Delhi . Development Authority Reported in AIR 1988 c
2. Champa Lal and others v. Rameshwar 1 if AIR 1967 RATASTHAN 233.
at mm ) ae) oy poe (Or rela . Express Newspapers Pvt. Ltd and others v.
2a of India and others Reported in AIR
4. R.M.Narayana Chettler v.-N Lakshmanan -
"defendant No.2 is
4. Krishna Singh v. Mathura Ahir and others Reported in AIR 1980 SC 707.
9. The Government Grants Act, 1895 (Act°i5.. Charitable trust, governed by 'trust deed... The-.defendant | fo the trust. Therefore, Cause. of acti ion accrued to seek his sought. In-this "reaard they Su bmit that vested interest a conspired will, defendant No' t-conseat uent to which there waS a. threat tothe trist 'property itself and hence 20 be formulated. To formulate scheme courts mcerventian under Section 9? CPC was * ndceséary. Th 'ey submitted that main reauirement under
- and "charitable institution or public trust. Since the ou public trust for religious and charitable _ purpose Section 92 CPC was the oni ly course open to them. "They denied the suit is collusive between plaintiffs and 4 & a defendant No.1. They further urged without proper scheme for management, the property will decay and lost, Defendant No.2 - trust is not managed by any Proy np a4 oh na of trustees and hence the proper scheme "hag. be formulated.
perusal of th (hr is a = me main grievance ony against the eB de efend ant No.l. Plaint is cryptic, devoid of material particulaés. Tre plaintiffs claim to be devotee's of -veetashiva and claiey to have interest in defendant No.2 = trust. Frere sought framing of the scheme. The averments in pialnl are NolEO; Street, K.P. West, Bangalore - 560 O28 more fully described in the Schedule, to "construct a Math for the Propogation of | Veeashaiva Philosopdy and accordingly a Math popularly known as Uravakonda Math is in existence since 1950s under the control of the said Swami.
53. The defendant was in the frontline. in "arnataka Ekixarana Movernent which" had. mS Drougnt his holiness in close contact. with many a political stah a Ou tg gots ita oF mer pe vee Sha faa a (D oo soo fat Sook i whom was Late Sri respected for integrity. a
4. The Defendant "With an intention of conducting ... and soci ial activities-in the Math For the wo At large had créated a Trust called uofortunately cid nek take ch see US discernible at. this. s stage. And probably fo Gefendant in the year 1981. Moreover, the registration of the Trust was also cancelled by inspite of the Trust being cancelled by its very
-¢reator and also the Government, the 'Trustees are attempting to meddle with the Math property with the ulterior designs. OP 16 . The plaintiffs submit with a sense of deep rustration that the defendant nad not taken requisite interest in the socio-religio Functions of the Math which had become ee Veaven for a few unholy people; -~ eae therefore, any socio-religicus Activ ny wortti- mentioning has been conducted in the J Me ath which is getting a meagre rent 'of -about ,200/- (Rs.7hree = Tho usand five hundred only) to Rs.4,000/- (Rs. Four THous: and caly) ch otherwise has from the different tenants wl a fine economic" potent laifey Aor account oF its focetion if a uP enabie the Math to augmer m4 mo re "Furne eu fae ons g ie3] La mo en ra] ec Fidden On ACCOUN his moverr rents: sometimes casting doubt of property, incucaing the sersons of the dissolved Anubhava Mantapa Trust who are al awaiting Swamiji's death fike vultures, ral ae notwithstanding the fact that a successor Mathedhipathi is already appointed.
Math property is to be.
the protected with the intervention of this Flon ble purposes by keeping et bay*alfsthe 9 otential :
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19. From the averments in ehe. plaint extracted above it is clear that the plaintiffs nave made no allegations against the trust-or Managing 7 rustees, According to them, the defendant Net 6 Matadhipathi and he is the sole several ds oct ments' against the interest of the trust.
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oats wy x or ee M om mo aa) aa a ay au al 3 = ou i perege: "At the time o aliv ey, but subsequent ly, he expired and was not alive on the date the defendant No.2 had filed the application. In the circumstance, we have to see whether the averments in the vee ree i a plaint which are in the nature of allegations agains defendant No.1 were available for consideration by the trial Court for framing of schemes. Undoubtedly, upon death of defendant No.1 sult against him had abated. As relief sought against the other defendants not based oF any specific allegations the sull had to abate.
20. First of al re er = oe =] ntainabtity af af CPC has also arisen. The
-under Section 34 of the Indian Trust Act, 1882 "Trust Act In respect of ya Trust and administration of the said trust and the school run by the trust. But the said Court by order dated 31.1.2000 held that the petition. Thereafter, the suit No.20 of 2000 was filed by the respondents as plaintiffs claiming several reliefs. The respondents fied an application (IA 349 of 2000) seeking leave ©. of the Court to institute the suit under Section 92 of CPC. According to the appellant without notice to him the concerned Court 'granted:
leave to the responcents to institu ite 'che suit. cm The suit was numbered as OS 20 of 2000. Plaintiffs filed wri ten" statement _ tnter-alia personal motives. Thersult.uncer Section 92 \ the: ] Aine at nd rhe reliefs sougnt the public, and if has Act é 3 tf aa poe Ce .
cee eye a or vel pepe ie the sults against otner trustees
- for personal reliefs and as individuals and "ge eking vindication of alleged individual rights and not as representatives of the public "Therefore, the suit as framed is not riaintainable under Section 92, CPC. The defendants filed an application before the District Judge, Ernakuiam for hearing as preliminary ISSUE, che question of maintainability of the suit. On the basis of contentions raised by the plaintiffs as well as defendants, the court framed preliminary issue as to whether the | S aintainable under section 92, CPC. By Order) covet i.
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fy pote oP a ch Pa dated 11-04-2003 0 was maintainable. ae Court niade referen veto' come | factual aspects it srnately< on to, tele "that the revision | 04-13-2063 ee "aie "interlocutory one. hereatter the appellant fued writ petition 'before t the: Hi gf Court praying, inter alia, writ, direct tion or order, questioning the order dated 2002. By order dated 20-08-2004 the "High Court dismissed the writ petition holding . "that. the view taken in the Civil Revision "apparently was not correct, as by mo stretch of imagin ination it can be held that the High Court had no jurisdiction. If accepted the stand of the respondents herein that since there was discussion on merits, though the petition was Re « 4 'position. Tf itis held that the s proceedings initiated under Article 227 of the Constitution of India, 1950 Gn short the 'Constitution') cannot be maintained."
5. "Both the orders, ie., one invine.
Revision Petition and the other in the wrt disposed of with the fol lowing cOROu SIONS:
in the revision petition and theother in the "Judged in 'the aforesaid background the view of the learned Single Judge that the Civil Revision wes not maintainable is clearly Section a> CPC is mot maintainable, tnat would have the result of final disposal of the suit. However, the learned counsel mace an attempt to justify the order by stating that the matter was also dealt with on merits Peete ae That would not improve the situation. The Civil Revision was clearly maintainable. Therefore, we allow the appeal so far as i. relates to Civili -- Revision Petition =. The High Court shall now. hear the. Cit Revision on merits and dispose ofthe. saine. as expeditiously as practi cable "preferably within four month Fre n ny th & a ate of receipt oF our order. The tr 1S period is being fixed con ISidenh ig. Ae pend lancy Of the matter for a Cons) iderabte length of f time.
necessary tO be passed in respect of the judgment in the writ petition. It may be noted that the learned Single Judge observed 'chat the Civil Revision was maintainable and, therefore, declined to entertain the writ petition. This order was passed on the face a same, therefore, is not justifiable. Sut it Is t essary to deai with that matter as a ° i "a Civil Revision shail be heard on merit."
24. Therefore, in view of clarity in the dictum of the Apex Court (supra) that against order granting leave under Section 92 of CPC, Revision Petition under Section "475 EPC is maintainable, objections are over ruled,
22. I shall now consider: 'the grou nds agaist th far:
23, it is therefore, necessary to extract.the prayer with which the respondents neve approacned the court wee?
wel Se below, which reads as. Toll H nterest ¢ oF just ce al Ad s equity."
24. 'Relief -arantabie under the provisions of Section OF -of EPC reads thus:
fi) In the case of any alleged breach of any "express or constructive trust created for publi purposes of a Charita ble . or religious nature, or whether the direction of the Court necessary for the administration of amy such r trust, the Advocate-General, or two or more persons havi a an interest in the trust ana ire, may institute a suit, whether contentious or not i the principal Civil Court of orginal furisdic or in any other Court empowered in that behalf by the State Government within the loc al limits | of whose jurisdiction the whole or nay part of -
the subject-matter of the trust is situate. to, ootain a cecree- ~
(a) rernoving any trustee,
(b) appointing a new trustee, fc) vesting any property te truster;.
(a) directing e@ tras stee whe has been Ov fa persen wha has ceased to be a trustee;to deliver. possession r trust property | n. HES. ied tot the me '(e) declaring what. propor rtion of the trust ser 'of the incerest therein shan ary any particular object of nee) authorizing. the whole or any part of ". the trust property to be iet, sola, 'mortgaged 0 or exchanged:
(h). granting such further or other rele s the nature of the case may require.
ents i or by am corresponding jaw in force in the territories which, immediately before the 1° November 1956, were compr rised in Part 8B States}, no suit Claiming any of the reliefs specified in sub-
section (1) shall be instituted in respect of a any such trust as is therein referred to except in Peal Nf conformity with the provisions of that suD- section.
(3) The Court may alter the ongi inal purposes | of an express or constructive [rust created for public purposes of a charitable or rel igious ~ nature and allow the property or .
such trust or any portion thereof t cy-pres in one or more of ne Fol iGv wing circumstances, namely: a fj ti % } have been. as far as may pe, full fll led; pat . L minot be c all, or cannot 'be-carfied: out according. tothe «direction "given cin thes: ingtrument cheating the trust.or, whe there iS.n&..such instrument, "caccording te.the spirit of the grust. or os . ; : ; Ly " applicable for (lar purposes can be ~ more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard pe "0! had to the spirit of the trust and Hts oplicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference 0 be applied = 34 to an area which then was, but has since ceased to be, a unit for such purposes:
or (@) where the original purposes, in whole. or in part, have, since they were fsid -- down, - --
(i) been adequately provided».
for by other means,-or Gi) ceased, as being useless or harmfulio the community,
(iv) ceased in any" othe way to proviae. a. suitable "and effective method of using the "property vavallable by virtue . Of the trust, regard being had "to. the spiritof the trust."
as 25, reamed Counsel Se Sainath, while adverting to the averments made in the paint would contend that in the laint there are no allegations relating to the following. . Mismiay nagement o or breach of Trust i Any personal benefit con rarred on the Trustees Any Hlegallty or cnproorie ty in the administration of the Trist.
That, the Trust property is being endangered, allenated or disposed The Petit ioners are not "persens interested" within the meaning of Sec.92 to maintain the suit, 26, Besides, locus of the plaintiff must also be ascertained. When the trust provides for benefit to several categories of persons apart from particular -- cate =GOry, persons belonging to one particular category / OF Bene Aclaries cannot be considerec canes ot.
community interest or the publi =] a ee oe a ome cae) :
fhe me) © on co Oy a th cs en [OCS & a = i bebe ek ore reliefs that tne " Seba oe eee De ge od eee a LERPmua me, Gita . i ~~ at cH ErUusE in not LOS nas mot made out ce roper £ 1 oF a foal ar uP seeking a cde : other person whom. they are imferested, then the suit would be outside the scope of een Ge (see N.Shanmukham Cnretty v.
VMAG é aSthanams v.
, sugra Bibi v. Hari sume ve and Mulla : civil Procedure Code Vol. i A sull whose primary oblect or purpose is to remedy the infringement of an imdividuals right Or to vindicate 4 ce Che Section. it is fer specified in the s that ca che section but only the su hn, besi "tet? cs Ze Bas sed Pe on 'the facts-discussed above, I am to be accepted it makes out satisfied: « even if averrnents ar defenaants "is neither clear nor specific. Therefore cause' of action did mot survive upon his death. Besides . there iS Ro denial from the plaintiffs that the defendant No.2? co Trust is a registerec trust to be managed in the manner provided in the scheme of the trust. The trustees, who re au are now on record, but the plaintiffs have not altered or amended their plaint or raised any grounc against them regarding management. There are no allegations of mismanagement etc. F omy ae a en "my eT) mm.
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293. Therefore, trial Court wa whether cause of action survives as on date after fling of Pt com de TA_A ~ i Ad 'be a ana Me get od L applications [A-41 and 44- has* not examined the maintainability of the sult after demise of defendant No.1 ou wo cu 3 Vi ie & x om the allegations weremade. In the absence of fo existence of against. The Trust cr Trustees, grant of Jeave cannot be sustained.
been crantec-under Section 92 CPC to flie sult witnou notice tu the defendants, defendants have right to seek "reyvlew-of the said order. In fact, the law is now support the ~ defendants, against whom the suit under Section 92 CPC __ has been filed, are entitled to be heard regarding grant of Lad leave. If the ieave has been granted exparte then after entering appearance tney could questian the said order.
Lad peed [remot aed on ob i Ft al an we ot case, the defendant: Now has cy, oO ae af) uy oO a ~ cag) my ad thd aa _ o SL ot a ae) UP ree i:
ony an a mo ee tT leave granted and tenabie vp iT rhe suit as cause o Faction.< dich. nat survive ipon death of t defendant No.i has been arroneously rejected, 32, "In-the circumstance, l-am satisfied that grant of hence the impugned order is liable to be set aside. Eesides, application fled under Section 44 CPC to dismiss the suit as . 33. In the result, CRP 3330/03 is allowed. The wpugned order dated 20-10-2003 in OS No. 962/1991 on TA-44 fs set aside and IA-41 is allowed. The leave granted to oO file the suit under Section 92 CPC is revoked. Similarly, CRP 4/04 is allowed. The impugned order dated 20-10-2003 in OS No. 962/1991 on IA-44 is set aside and 14-44 is allowed, i s 4 F ;
The suit is heid to be not maintainable for want uf cause of action and ik is dismissed.