Madras High Court
Maan Sarovar Paras Builders Pvt. Ltd vs Gopaldas Dwarakadas Family Trust ... on 24 September, 2012
Author: P.Jyothimani
Bench: P.Jyothimani, M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.9.2012 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MR.JUSTICE M.DURAISWAMY O.S.A.Nos.185 to 187 of 2012 Maan Sarovar Paras Builders Pvt. Ltd. Rep. by its Director, P.Dinesh No.164, Lingi Chetty Street Chennai 600 001. .. Appellant Vs. 1.Gopaldas Dwarakadas Family Trust Estate No.145, North Chitra Street Srirangam, Trichy 6, rep. by its Managing Trustee, G.D.Ramdas 2.G.Madan Mohan Das 3.J.H.Najumudeen 4.G.D.Ramdas 5.N.Salva 6.N.Sarina 7.N.Nadim Ahamed 8.N.Issam .. Respondents Prayer in O.S.A.Nos.185 to 187 of 2012: Appeals against the order passed by the learned Single Judge dated 28.3.2012 made in Application Nos.1263 to 1265 of 2011 in O.P.No.203 of 2010. For Appellant : Mr.V.T.Gopalan, Sr.Counsel for Mr.M.L.Joseph for M/s.Chennai Law Associates For Respondents : Mr.R.Thiagarajan for respondents 1 and 4 Mr.P.L.Narayanan for 3rd respondent Mr.R.Madangopal for respondents 5 to 8 Not ready in notice for 2nd respondent J U D G M E N T
P.JYOTHIMANI,J.
These appeals are directed against the common order passed in Application Nos.1263 to 1265 of 2011 in O.P.No.203 of 2010. While Application No.1263 of 2011 is to set aside the order dated 2.11.2010 passed in O.P.No.203 of 2010 and to cancel the confirmation of effected sale in favour of the third respondent, Application No.1264 of 2011 is for a direction against respondents 1 and 3 to execute registered deed cancelling the registered sale deed bearing document No.3385 of 2010, dated 20.12.2010 registered in the office of the Registrar, Srirangam, and Application No.1265 of 2011 is to direct the first respondent to register the sale deed in respect of the property in Survey No.1041 measuring 8.84 Acres in Melur Village, Srirangam Taluk, Tiruchirapalli District by receiving the balance consideration of Rs.360 Lakhs. All the said applications came to be dismissed by the learned Judge under the impugned order, against which the above appeals have been filed by the third party/applicant.
2.1. A thumbnail sketch of the facts of the case are as under: "Gopaldas Dwarakadas Family Trust" was formed by way of a scheme framed by this Court by order dated 17.2.1923 in C.S.No.721 of 1923 by merging the earlier existing two trusts, to wit "Malayalkaveri Bai Ammal's Trust" and "Gopaldas Dwarakadas Trust" and all the assets of both the trusts barring the properties in the city of Madras and Chengalpet District and including the properties mentioned in the schedule to Razinamah in C.S.No.21 of 1892 and in the schedule mentioned in C.S.No.721 of 1923 were directed to be treated as one estate referred to as "Gopaldas Dwarakadas Family Trust Estate" and the entire estate was administered and managed, as per the scheme, by Krishna Doss @ Vittaldass and/or G.K.Rangil Doss.
2.2. The trust, in the course of its administration, found that the income from and out of the properties of the trust was not sufficient to perform charitable and religious acts and also to meet out the statutory dues and, therefore, has filed O.P.No.685 of 2006 seeking permission to sell ten items of properties situated in various places and to invest the sale proceeds in fixed deposit. The said original petition was filed through its Managing Director G.D.Ramdas, representing the trust, who is also the petitioner in the present original petition. In O.P.No.685 of 2006, after calling for valuation report of the property, calling for objections for granting permission to sell the property and issuance of paper publication in English and Tamil newspapers of Trichy edition, the matter was not pursued and hence, the original petition was dismissed as withdrawn.
2.3. In 2010, the present O.P.No.203 of 2010 has been filed seeking permission to sell three items out of ten items covered in O.P.No.685 of 2006, since the income received from the said items of properties was very meagre and insufficient to meet out the overheads, huge statutory levies, and expenditure for charities and religious acts. The learned Judge has called for valuation report from the licensed valuer from the institution of valuers and directed the first respondent/Trust to file accounts duly certified by the auditor in respect of income and expenditure anent alienation made from 2005 onwards. The learned Judge, after receiving the said documents, directed publication in one of the English and Tamil newspapers circulated in the area where the property is situated inviting offers and such offers were received by the Registry.
2.4. After hearing the objections of the second respondent G.Madhan Mohan Das/trustee and another trustee Tharun, and on consideration of the four offers received pursuant to the publication, the learned Judge permitted to sell Item No.1, to wit lands in S.F.No.1041 measuring 3.58 Hectares situated in Melur Village, Srirangam Taluk, Trichy District, to the third respondent J.H.Najumudeen, who was declared to be the highest bidder for Rs.1,25,00,000/-, while the upset price fixed was Rs.1,15,00,000/- and Item No.3, to wit lands in S.F.No.96, measuring 1.92 Hectares situated in Valgainallur Vilalge, Kulithalai Taluk, Karur District, to one K.Arunachalam, who happened to be the highest bidder for a sum of Rs.18,00,000/- while the upset price fixed was Rs.17,00,000/-.
2.5. It is stated that after confirmation of sale and payment of the entire amount, sale deed was executed, as directed by the learned Judge, in favour of the third respondent in respect of the first item of property on 20.12.2010 and the third respondent in his turn has settled the property in favour of his wife and daughter by registered sale deeds dated 28.2.2011 and it is stated that the third respondent, after the sale deed was executed, effected mutation of his name in the village records and also obtained patta. It is at that point of time the above applications came to be filed by the third party/applicant in respect of first item of property.
2.6. The applicant in the applications has claimed to set aside the sale effected through the Court on the ground that it is entitled to conveyance based on an agreement for sale dated 14.3.2006, which is prior in point of time and is for a sale consideration of Rs.4 Crores, which is higher than the amount for which the property was sold to the third respondent. Therefore, the applicant has sought cancellation of the sale effected to the third respondent, apart from the consequential direction to execute sale deed in favour of the third party/applicant.
2.7. It is stated by the applicant that the fourth respondent G.D.Ramdas representing the first respondent/Trust approached the applicant/company in the second week of March, 2006 and offered to sell the property by furnishing a copy of the resolution dated 7.9.2005, by which the Managing Trustee was authorized by the other trustees to sell the immovable properties of the trust and therefore the applicant/company has offered to purchase the property and the fourth respondent/Managing Trustee has agreed to sell the property in question measuring 8.84 Acres (3.58 Hectares) in Melur Village, Srirangam Taluk for Rs.4 Crores and an agreement was entered on 14.3.2006 based on which the applicant paid an advance of Rs.20 Lakhs by way of a cheque dated 14.3.2006.
2.8. It is stated that thereafter the fourth respondent has received another amount of Rs.20 Lakhs in cash, to wit (i) Rs.2 Lakhs on 2.4.2006; (ii) Rs.8 Lakhs on 25.4.2006; and (iii) Rs.10 Lakhs on 16.5.2006, making due endorsements in the agreement acknowledging the receipt of the same. The second payment of Rs.20 Lakhs by cash was made in spite of the fact that the amount is liable to be paid only after obtaining permission from the Court for sale and as per the agreement, the sale shall be effected within eight months from the date of court order permitting the sale of the property and the balance consideration of Rs.3.60 Crores was agreed to be paid at the time of registration.
2.9. It is stated that based on the said agreement, the land has been topographed by one Apex Topomapers Private Limited on 30.1.2007 and the fourth respondent has been repeatedly informing the applicant that sale deed will be effected after obtaining permission from the High Court, without disclosing the permission given in the original petition. It is also stated that on 23.5.2009, the Managing Trustee has written a letter to the applicant stating that permission will be obtained from the Court after vacation and since there was no headway, the applicant, after applying for the encumbrance and knowing about the order passed in the original petition confirming the sale and directing execution of the sale deed in favour of the third respondent, has filed the above said applications.
2.10. It was the main contention of the applicant that the first respondent/trust has suppressed the material facts relating to the agreement with the applicant, who has offered a higher price, and therefore fraud has been played on the Court in obtaining permission. It was also contended that public notice has not been properly effected and the fourth respondent has acted in cahoots with the third respondent/purchaser.
2.11. While the fourth respondent has not taken effective steps before the learned Judge, the third respondent/purchaser has defended the sale to the effect that the agreement relied upon by the applicant is not enforceable in law, being an unregistered document, and it is only an afterthought; that the sale consideration has been wantonly exaggerated; that the publication has been effected properly before the Court passed order in the original petition; that the plea of payment of advance of Rs.20 Lakhs through cheque is not believable and there is no record to show that the said amount has come into the trust account; that the further payment of Rs.20 Lakhs stated to have been made by cash is also not reflected in the account of the trust and any payment if it is made to the fourth respondent cannot be deemed to be payment made to the first respondent/trust; and that the endorsements stated to have been made in respect of the receipt of various cash payments on the backside of the agreement are all effected on the same day in the same handwriting with collusive intention.
2.12. The learned Judge, after considering the rival submissions, has concluded under the impugned order that the claim of the applicant is doubtful; that the agreement which is relied upon by the applicant is unregistered; that the amount of Rs.40 Lakhs stated to have been paid by the applicant has not been reflected in any of the accounts of the trust; and that the three endorsements made on the backside of the agreement appear to be made on one and the same day, in the same handwriting, without the seal of the trust. Considering the conduct of the applicant in paying Rs.40 Lakhs out of the agreed amount of Rs.4 Crores and remaining silent from 2006 onwards, the learned Judge has held that the conduct of the applicant is unnatural. The learned Judge has also observed that the reminder stated to have been made by the applicant on 23.5.2009 to the fourth respondent has not been addressed to the addressee at all. The learned Judge, having satisfied with the publication effected before the sale was confirmed in respect of the valuation, dismissed the applications, against which these appeals are filed by the third party/applicant.
3.1. Mr.V.T.Gopalan, learned Senior Counsel appearing for the appellant in all these appeals would rely upon the contents of the agreement dated 14.3.2006 entered into between the fourth respondent, representing the first respondent/trust as its Managing Trustee, and the appellant/company, wherein it has been specifically stated that the fourth respondent would obtain permission to sell the property from the District Court; and that on obtaining the copy of the order, the same will be handed over to the appellant and thereafter within eight months time sale has to be effected either in the name of the appellant or its nominee, by which time the appellant has agreed to pay the balance amount.
3.2. He would also submit that it is based on the said contents of the agreement, the fourth respondent, representing the first respondent/trust, has in fact filed O.P.No.685 of 2006 in the High Court under Section 34 of the Indian Trusts Act, 1882 seeking permission to sell the scheduled mentioned properties, in which the property in question at Melur Thottam is referred to as Item No.9, however suppressing the said original petition filed and the subsequent publication made in the newspapers, the fourth respondent has filed the present O.P.No.203 of 2010 also suppressing the agreement entered into with the applicant and thereby played fraud on the Court. According to him, the very fact that only the third respondent has contested before the learned Judge shows the deliberate suppression. To substantiate his contention that fraud would vitiate the permission granted, he would rely upon the decisions in Gowrishankar v. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310, Hamza Haji v. State of Kerala, (2006) 7 SCC 416, A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221 and Union of India v. Ramesh Gandhi, (2012) 1 SCC 476.
3.3. He would also submit that under Section 34 of the Indian Trusts Act, 1882, the order passed by the Court is summary in nature and it is not litigative and it can at the most be the opinion of the Court. He would also rely upon the decision in Baddula Lakshmaiah v. Sri Anjaneya Swami Temple, (1996) 3 SCC 52.
3.4. While making it clear that he is not pressing for specific performance of sale in favour of the appellant, he would submit that inasmuch as the appellant has made an offer for Rs.4 Crores under the agreement, which stands even today, the sale effected in favour of the third respondent should be set aside in the interest of the trust and bid must be started from that amount. He would add that the purchaser from the trust will not get any vested right if the price for which the property was sold was meagre.
4.1. On the other hand, Mr.P.L.Narayanan, learned counsel appearing for the third respondent/auction purchaser would submit that the applications preferred by the third party/applicant, who is the appellant herein, are not valid in law and they are made in cahoots with the fourth respondent as an afterthought, and that inasmuch as the amount of Rs.40 Lakhs stated to have been paid as advance by the third party/applicant has not come into the trust account at any point of time, it cannot be said that the third party/applicant has got any right. To substantiate his contention that the agreement is unnatural, he would rely upon the decision in Basappa v. Basamma, AIR 2004 Madras 390. He would further submit that there is no fraud when the first respondent/trust has not received any amount under the so-called agreement and, therefore, the judgment in Gowrishankar v. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310 is distinguishable and not applicable to the facts of the present case.
4.2. It is his submission that even the alleged agreement dated 14.3.2006 which contains the last endorsement on 16.5.2006, which is relied upon by the third party/applicant, itself is time barred and, therefore, the appellant cannot have any right to question the validity of the sale effected through the Court.
4.3. He would also submit that a reference to the encumbrance certificate produced on behalf of the appellant itself shows that it was not obtained in the name of the appellant, but in the name of one Nijamudeen.
4.4. It is submitted that the mere filing of earlier O.P.No.685 of 2006 and withdrawal of the same will not amount to any suppression.
5.1. Mr.R.Madanagopal, learned counsel appearing for the purchasers from the third respondent, who are the sons and daughters of the third respondent, while adopting the arguments of Mr.P.L.Narayanan, learned counsel, would submit that the third respondent has already settled the property in favour of the said respondents on 28.2.2011 under registered documents and all the public records are standing in the names of the said respondents.
5.2. He would also submit that the agreement relied upon by the appellant is not tenable inasmuch as not even a resolution of the appellant/company has been produced before the Court, especially when the appellant happens to be a private limited company. He would rely upon the decisions in Sinnamani v. G. Vettivel, (2012) 5 SCC 759 and Sinnamani and another v. G.Vettivel and others, 2008-2-L.W. 60.
6.1. Mr.R.Thiagarajan, learned counsel appearing for the first respondent/trust would submit that the appellant relying upon an agreement dated 14.3.2006 should have gone for specific performance under the Specific Relief Act proving his readiness and willingness and even as on date no amount has been deposited and even otherwise such agreement is barred by limitation.
6.2. He would submit that the order under Section 34 of the Indian Trusts Act, 1882 is summary in nature and it is not contested and it can be advisory, by relying upon a Division Bench decision of the Calcutta High Court in Ashok Kumar Kapur and others v. Ashok Khanna and others, AIR 2007 (NOC) 85 (Calcutta).
6.3. He has submitted that he is willing to return Rs.40 Lakhs to the appellant and the learned counsel has also produced the bank account.
7. We have heard the respective counsel, referred to the detailed order passed by the learned Judge and given our anxious thought to the issue involved.
8. The appellant relies upon an unregistered agreement entered into by it with the fourth respondent G.D.Ramdas, Managing Trustee representing the first respondent/trust. In the said agreement, the property belonging to the trust situated in Melur Village to an extent of 8.84 Acres was agreed to be sold by the fourth respondent, on behalf of the first respondent/trust, to the appellant, which is a private limited company, for a consideration of Rs.4 Crores and it is specifically stated that a part consideration of Rs.20 Lakhs has been paid by cheque dated 14.3.2006. In the agreement, the fourth respondent has signed with the seal of the first respondent/trust as its Managing Trustee.
9. Whether the fourth respondent is competent to enter into an agreement to sell the property of the public trust for a consideration of Rs.4 Crores and state that permission from the Court can be thereafter obtained is not clearly explained. Further, in the agreement, very strangely, the fourth respondent, representing the first respondent/Trust, having received Rs.20 Lakhs as advance under the sale agreement, states that he would get permission from the District Court and place the order of the Court before the appellant and thereafter on the appellant or its nominee paying either whole or part of the sale consideration, the sale deed would be executed on behalf of the trust. The relevant portion of the agreement is as follows:
"1tJ ghh;l;o khz;g[kpF khtl;l ePjpkd;wj;jplkpUe;J ,f;fpiua brhj;ij tpw;gid bra;tJ Fwpj;J mDkjp bgw;W mjw;Fhpa ePjpkd;w Mizapd; efiy bgw;wt[ld; mij 2tJ ghh;l;o trk; xg;gilj;j fhyj;jpypUe;J 8 (vl;L) khj fhy bfLtpw;Fs; 2tJ ghh;l;of;nfh my;yJ 2tJ ghh;l;oapd; cj;jut[ bgw;w egh;fSf;nfh 1tJ ghh;l;oahd eh';fs; kPjKs;s fpiuaj; bjhifia jh';fs; mt;tg;bghGJ gFjpahfnth KGikahfnth brYj;Jk; jUzj;jpy; mij bgw;Wf; bfhz;l gpd;g[ fPH;f;fz;l brhj;ij 2tJ ghh;l;oapd; tpUg;gj;jpd; mog;gilapy; gFjpahfnth KGikahfnth fpiuak; bra;J bfhLf;f Kot[ bra;ag;gl;Ls;sJ/"
10. It is the above said portion of the agreement which would have been meant by the learned Judge as unnatural. In our view, there is no reason to dissent from the said view. This is apart from the fact that it is not explained as to how the fourth respondent, as a Managing Trustee, is entitled to execute such an agreement without even obtaining permission from the Court; calling for objections from the public; and publication in the newspapers calling for offers from intending purchasers, as the first respondent/trust happens to be a public trust.
11. Further, on the backside of the first page of the agreement, there are three endorsements made on 2.4.2006, 25.4.2006 and 16.5.2006 stating as if the fourth respondent has received an amount of Rs.2 Lakhs, 8 Lakhs and 10 Lakhs respectively in cash and it is stated that he has received in all Rs.40 Lakhs from the appellant. On a reference to the said endorsements, there is no difficulty to conclude that the same appear to have been made on the same day in the same handwriting and curiously the fourth respondent has not even affixed the seal of the first respondent/trust.
12. The appellant relies upon an encumbrance certificate, copy of which is produced by the appellant itself in the typed set of papers stated to have been obtained on 1.2.2011, which is not in the name of the appellant/company but in the name of Mohanram on behalf of Nijamudeen stated to have been applied for the purpose of enforcing the so-called agreement dated 14.3.2006. In our considered opinion, the limitation does not start from the date of the knowledge of encumbrance and it is from the date of entering into the agreement. Therefore, the reliance placed on the encumbrance certificate to say that the appellant was aware of the sale effected in favour of the third respondent only after 1.2.2011 and therefore he has come to the Court for the purpose of setting aside the order passed in O.P.No.203 of 2010 within three years has no meaning, especially when the appellant's claim itself is based on the agreement dated 14.3.2006.
13. The contention of the learned Senior Counsel for the appellant that the earlier O.P.No.685 of 2006 was filed subsequent to the agreement entered into between the appellant and the fourth respondent on behalf of the first respondent dated 14.3.2006 is also not supported by any acceptable evidence. A reference to the contents of the petition filed under Section 34 of the Indian Trust Act, 1882 in O.P.No.685 of 2006 shows that the fourth respondent representing the first respondent/trust has nowhere mentioned about the offer made by the appellant. Moreover, that original petition was filed in respect of ten items of properties, which includes the property which is the subject matter of these appeals. It is also true that after effecting publication, as stated above, the original petition was withdrawn. In withdrawing the same and filing subsequent original petition, there is no suppression.
14. In the order dated 2.11.2010 passed in O.P.No.203 of 2010 permitting the sale of the property, the learned Judge has clearly elicited clause (14) of the scheme decree dated 17.2.1923, which clearly states that the Managing Trustee shall have no power to sell, mortgage or alienate any of the immovable properties of the trust excepting with the prior permission of the High Court, Madras obtained for the purpose after notice to all the parties concerned. In the presence of such clause in the scheme, the agreement which is relied upon by the appellant, in our view, does not hold good.
15. The income and expenditure account produced by the appellant in respect of the first respondent/trust for the period from 2.11.2005 to 22.10.2006 nowhere shows either the receipt of Rs.20 Lakhs by the trust by way of cheque or Rs.20 Lakhs in cash. In fact, during the said period, the income from Melur Big Padugai Thottam has been entered as Rs.2,201/-; Srirangam Thottam has been entered as Rs.12,001/-; and Melur Small Thottam was entered as Rs.250/-. Except the said income, there is no other income entered in the document relied upon by the appellant itself. However, in the appellant's account it is stated that an amount of Rs.20 Lakhs has been paid for clearing to G.D.Ramdas on 15.3.2006 by cheque drawn on UTI Bank (now Axis Bank). On the other hand, a copy of the account of the fourth respondent G.D.Ramdas from Axis Bank, produced by the counsel for the third respondent, shows that the said fourth respondent has deposited the amount of Rs.20 Lakhs in his account, which was credited on 15.3.2006, but withdrawn in the name of P.R.Swaminathan on 17.3.2006. If really the fourth respondent has received the cheque on behalf of the trust, the receipt should be reflected in the trust account.
16. As correctly stated by the learned Judge in the impugned order, the letter of the fourth respondent dated 23.5.2009 addressed to the appellant, which is heavily relied upon by the appellant/company, along with the cover produced shows that it has been addressed to somebody else, to wit Vinod Kumarji, Trichy, as it is seen in the courier receipt. Therefore, in the light of a grave doubt about the genuineness of the agreement relied upon by the appellant, which is material, as found by the learned Judge, there is no question of any fraud stated to have been played by either the first respondent or the third respondent in selling or purchasing the property, which was as per the direction of the Court. Consequentially, the heavy reliance placed by Mr.V.T.Gopalan, learned Senior Counsel on the decision in Gowrishankar v. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310 is not applicable to the facts of the case. Equally so, the judgment of the Supreme Court relied upon by the learned Senior Counsel for the appellant in S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1 also does not apply to the facts of the present case. Merely because the appellant is now belatedly willing to offer Rs.4 Crores in respect of the property which has been sold as per the direction of the Court after advertisement and calling for offers, there can be no presumption drawn of fraud so as to enable this Court by applying the ratio laid down by the Supreme Court in the above said judgments for setting aside the sale effected to the third respondent. Therefore, as correctly stated by the learned Judge in the impugned order, the finding of the Supreme Court in Valji Khimji and Company v. The Official Liquidator of Hindustan Nitro Product (Gujarat) Limited, (2008) 9 SCC 299 wherein the Supreme Court has held that if every confirmed sale is set aside, no auction sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount, would certainly be helpful to the third respondent. As found by the learned Judge, we have no hesitation to hold that the agreement relied upon by the learned counsel for the appellant is artificial. Consequently, the appellant has no locus standi to question the sale.
17. Before dealing with the contention regarding the power of the Court under Section 34 of the Indian Trusts Act, 1882, it is relevant to extract Section 34 of the Indian Trusts Act, 1882, which is as follows:
"Section 34. Right to apply to Court for opinion in management of trust property.- Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.
A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application.
The costs of every application under this section shall be in the discretion of the Court to which it is made."
18. While dealing with the power of the High Court under Section 34 of the Indian Trust Act, 1882 and its scope, the Supreme Court observing that the jurisdiction of the Court is advisory and is in the form of an opinion and there is no determination of right, title and interest, held in Ashok Kumar Kapur v. Ashok Khanna, (2007) 5 SCC 189 as follows:
"21. We may proceed on the basis that the jurisdiction of the court is not only confined to opinion or advice but also extends to issuance of direction, but such opinion rendered, or advice given or direction issued only to a trustee. Consequence of issuance of such a direction is also stated in para 3 of Section 34 in terms whereof a legal fiction is created by reason whereof the trustee would be deemed to have discharged his obligation in regard to his own responsibility in the subject-matter of the application. It does not envisage an adjudication. It does not ordinarily envisage determination of the right, title or interest of a member of the trust or a beneficiary in relation to the trust property, although such a question may have to be incidentally dealt with."
The Supreme Court has also held in the said judgment that when the Court refuses to exercise its discretionary jurisdiction, normally an appellate court shall not interfere therewith, by referring to the earlier decision in Manjunath Anandappa v. Tammanasa, (2003) 10 SCC 390.
19. Even if the fourth respondent in his individual capacity has received the amount either in cash or by way of cheque, it does not mean that the amount has gone to the trust, especially when the trust account itself has not been produced before this Court and the accounts relating to the applicant as well as the fourth respondent show that it has been given to the fourth respondent in his name. Therefore, there is no obligation on the part of the trust to refund the amount. If at all the appellant seeks any relief for the purpose of refund of the amount, it is for the appellant/company to proceed against the fourth respondent in his individual capacity.
Looking from any angle, we do not see any reason to interfere with the order of the learned Judge, as the impugned order is neither perverse nor suffers from any infirmity. The case of the appellant about the agreement and its genuineness can never be accepted for various reasons elicited above, which, in our considered view, have been duly considered by the learned Judge. Accordingly, the appeals fail and the same are dismissed. No costs. Consequently, M.P.Nos.1 and 2 of 2012 in O.S.A.No.185 of 2012, M.P.Nos.1 to 3 in O.S.A.No.186 of 2012 and M.P.Nos.1 to 3 in O.S.A.No.187 of 2012 are closed.
(P.J.M.J) (M.D.J.) 24.9.2012 Index : Yes Internet : Yes sasi P.JYOTHIMANI,J. AND M.DURAISWAMY,J. (sasi) O.S.A.Nos.185 to 187 of 2012 24.9.2012