Karnataka High Court
Sri K V Ramesh Kumar vs Sri. Ranganathaswamy on 21 February, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
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RFA No. 1097 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1097 OF 2009 (DEC/INJ)
BETWEEN:
1. SRI. K.V. RAMESH KUMAR
S/O. LATE K. VISHVESWARAIAH
AGED ABOUT: 54 YEARS
R/AT NO.83, 2ND CROSS
K.V.LAYOUT, 4TH BLOCK EAST
JAYANAGAR, BENGALURU-560 011
2. SRI. K.V. SATHYANARAYANA
S/O. LATE K. VISHVESWARAIAH
SINCE DECEASED BY HIS LRs
2(A). SMT. B.K. SHAKUNTALA
Digitally signed by W/O. LATE SRI. K.V. SATHYANARAYANA
SHAKAMBARI
SINCE DECEASED BY HER LRs
Location: HIGH
COURT OF
KARNATAKA
2(B). SRI. K.S. MANJUNATH
S/O. LATE SRI. K.V. SATHYANARAYANA
AGED ABOUT: 50 YEARS
R/AT NO.5/9, "RANGASIRI"
1ST CROSS, K.V. LAYOUT
4TH BLOCK EAST, JAYANAGAR
BENGALURU-560 011
2(C). SMT. K.S. ROOPA
D/O. LATE SRI. K.V. SATHYANARAYANA
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RFA No. 1097 of 2009
W/O. SRI. G.V. VIJAYA KUAMR
AGED ABOUT 48 YEARS
R/AT NO.43/45, T-2
"SRI RANGAPRIYA RESIDENCY"
2ND CROSS, K.V. LAYOUT
4TH BLOCK EAST, JAYANAGAR
BENGALURU-560 011
...APPELLANTS
(BY SRI. R.B. SADASIVAPPA, ADVOCATE)
AND:
1. SRI. RANGANATHASWAMY
PRASANNA KAVETY TRUST
NO.45/3, 2ND CROSS
K.V. LAYOUT, 4TH BLOCK EAST
JAYANAGAR, BENGALURU-11
REPRESENTED BY ITS TRUSTEES
2. SMT. K. UMADEVI
W/O. LATE SRI. K. VISHVESWARAIAH
SINCE DECEASED BY HER LRs
2(A). SMT. K.M. BHAGYALAKSHMI @ G.S. MAMATHA
(MANAGING TRUSTEE OF RESPONDENT NO.1)
D/O. LATE SRI. G.C. SHIVANANDA AND
LATE SMT D.K. SUMITHRA
AGED ABOUT 51 YEARS
2(B). SMT. G.S. SRIDEVI
(TRUSTEE OF RESPONDENT NO.1)
D/O. LATE SRI. G.C. SHIVANANDA AND
LATE SMT. D.K. SUMITHRA
AGED ABOUT 47 YEARS
2(C). SRI. RAKSHITH ARVIND
(TRUSTEE OF RESPONDENT NO.1)
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RFA No. 1097 of 2009
S/O. LATE SRI. G.C. SHIVANANDA AND
LATE SMT. D.K. SUMITHRA
AGED ABOUT 42 YEARS
RESPONDENTS NO.2(A) TO 2(C) ARE
R/AT 45/3, 2ND CROSS
K.V. LAYOUT, JAYANAGAR
BENGALURU-560 011
3. SMT. NIRMALA C W/O. SRI. RAJABHASKAR
AGED ABOUT: 45 YEARS
R/AT NO.9/1, 1ST CROSS
3RD PHASE, 3RD BLOCK
BSK 3RD STAGE
BENGALURU-560 085
4. SMT. DHANALAKSHMI W/O SRI. VENUGOPAL
AGED ABOUT: 46 YEARS
R/AT NO.56/1-1, 2ND CROSS
2ND BLOCK, BSK 1ST STAGE
BENGALURU-560 050
5. SRI. N. JAYARAM S/O. SRI. CHENNAPPA NAIDU
AGED ABOUT: 53 YEARS
R/AT NO.615, 100 FT RING ROAD
KATRIGUPPE, BSK 3RD STAGE
BENGALURU-560 050.
...RESPONDENTS
(BY SRI. J.M. ANILKUMAR, ADVOCATE FOR R1;
SRI. GANAPATHI BHAT, ADVOCATE FOR R2;
VIDE ORDER DATED 21.06.2023
R3-SMT. NIRMALA C
R4 SMT. DHANALAKSHMI
R5-N. JAYARAM)
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RFA No. 1097 of 2009
THIS RFA IS FILED U/S 41 RULE 1 R/W SEC. 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.8.2009
PASSED IN OS.NO.7102/1997 ON THE FILE OF THE I ADDL.
CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH-2),
DISMISSING THE SUIT FOR DIRECTION AND PERMANENT
INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
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RFA No. 1097 of 2009
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) The unsuccessful plaintiffs being aggrieved by the judgment and decree dated 27.8.2009 passed in OS No.7102/97 by the I Addl. City Civil and Sessions Judge (CCH-2) Bengaluru City have preferred this appeal.
2. The records reveal that, during the pendency of the appeal, appellant no.2 died and his LRs are brought on record in the shape of appellant no.2(a) to (c) and respondent no.2 died and her LRs are brought on record in the shape of respondent nos. 2(a) to (c). Subsequently, respondent nos.3 to 5 are impleaded. Accordingly, the cause-title came to be amended.
The brief facts of the case upto this appeal are as under:
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3. Plaintiff nos. 1 and 2 initially filed a Misc.Petition NO.1094/94 before the Prl.City Civil and Sessions Judge, Bengaluru under Section 92 of CPC seeking leave of the Court to file a scheme suit against defendants. On enquiry, the Prl.City Civil and Sessions Judge, vide orders dated 19.09.1997 allowed the petition and permitted the plaintiffs/petitioners to institute and prosecute the proposed suit. Accordingly, the plaintiffs filed the suit in OS No.7102/1994 seeking to pass a judgment and decree with a prayer to grant the following reliefs:
i. "Remove the defendant nos. 2 and 3 from the Trusteeship or the Management of the Trust properties;
ii. Direct the defendant no.2 and 3 to render
the proper accounts regarding the
management of the Trust and its
properties so far;
iii. Direct the defendant nos. 2 and 3 to pay
the cost of the suit and grant such other -7- NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 relief/s or further reliefs as this Hon'ble Court deems fit in the circumstances of the case including the cost of this plaint in the interest of justice and equity; AND iv. Pass a permanent injunction restraining the defendant no. 2 and 3 or anybody acting on their behalf alienating or creating charge or encumbrance over the schedule properties."
4. The plaintiffs have described the schedule properties as Schedule 'A and B' in the plaint, which will be described as Schedule A and B properties for convenience. It is the case of the plaintiffs that, plaintiff no.1, his father late K.Vishweshwaraiah, his father's second wife K.Umadevi, K.N.Sathyanarayana and K.Vasudevaiah formed a Trust and to that effect, the initial trust deed was prepared on 13.5.1975. Subsequently, another trust deed dated 15.5.1986 was authored in respect of the immovable properties so situated at Jayanagara, K.V.Layout 4th block East, Bengaluru, bearing site Nos.44/4, 45/3, 46/2, 47/1, 48/5 and 16/6. According to -8- NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 plaintiffs, the first defendant is a Registered Public Charitable Trust and each of the trusties stated supra including late K.Vishweshwaraiah contributed Rs.101/- each. The initial trust deed dated 13.5.1975 was in between the first plaintiff, late K.Vishweshwaraiah and defendant nos. 2 and 4 in respect of four properties bearing site no.44/4, 45/3, 46/2 and 47/1 stated above. Deceased K.Vishweshwaraiah authored another registered trust deed in the year 1986 and included defendant nos. 2 and 3 as trustees and also included sites bearing No.48/5 and 16/6 so described in the plaint.
5. It is alleged that, in the second registered trust deed dated 15.5.1986, there is no reference with regard to earlier trust deed of 1975 but, it was understood that, the trust deed of 1986 is a continuation of 1975 trust deed. As per the object of the said trust, "the first defendant trust is a `Public Trust' to provide facilities and amenities to the poor students with regard to the education irrespective of caste, religion, and community. Even the scholarship to -9- NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 such students was also provided, so also it was decided to provide medical assistance to the persons who are in need. The other object of the trust is to, construct maternity wards in and around Bengaluru City, to provide accommodation and lodging facilities to the poor students irrespective of the community, caste, religion etc."
6. Even the first defendant-trust constructed the Kalyana Mantap with all necessary facilities and it is a public charity work undertaken by the first defendant with the help of aforesaid trustees. There were constructions made in the aforesaid properties in the year 1988-89 covering the entire 'A' schedule property. In the `A' schedule property, on the western side, a construction was put up with asbestos sheets in the year 1983 and it was leased to a tenant by name M/s.Ganapathiraja Enterprises. The Kalyana Mantap was also constructed to be leased on rental basis and all efforts were made to improve 'A and B' schedule properties. The temple so constructed is open for the general public.
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7. It is further stated that, apart from 'A and B' schedule property, the first defendant trust owns jewellery, cooking utensils, furniture and gas installations valued about Rs.2.5 lakhs. It is alleged that, deceased K.Vishweshwaraiah during his lifetime was a Managing Trustee and he used to take care of the entire management of the first defendant-Trust and all other trustees reposed confidence in him. He died on 16.6.1994.
8. It is specifically alleged that, as a Managing Trustee, deceased K.Vishweswaraiah mismanaged the Trust Management and used to behave as if he is the absolute owner of the trust properties mentioned in the trust deed. The second plaintiff has not been shown as a trustee but, he became a trustee by virtue of judgment and decree so passed in FDP No.75/1990 arising out of a civil suit in OS No.52/1974, wherein preliminary decree was passed by the Civil Court. The deceased K.Vishweshwaraiah never accounted for the assets and
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 liabilities of the trust. Because of the behaviour of the deceased K.Vishweshwaraiah, plaintiff no.1 wanted to set right the affairs of the trust and for proper management of the trust, plaintiff no.1 sent letter to the trustees to appoint a new Managing Trustee in place of late K.Vishweshwaraiah after his demise and requested other trustees to attend the meeting. But, defendant nos. 2 and 3 sent reply denying the status and locus of plaintiff no.1 to call the meeting. Defendant nos. 2 and 3 started acting themselves as sole and absolute owners of schedule properties and did not implement the aims and objects of the trust as stated in the trust deed. As their activities are detrimental to the interest of the trust, plaintiffs are constrained to file a civil suit against defendants after obtaining leave from Prl. City, Civil and Sessions Judge, Bengaluru. Thus, it is prayed by the plaintiffs to decree the suit.
9. Pursuant to the suit summons, defendant nos. 2 to 4 appeared, being the representatives of the defendant
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 no.1 - Trust. Defendant no.2 has filed the written statement, whereas, defendant nos. 3 and 4 did not file their written statement. They died during the pendency of the suit itself. Name of defendant no.4 came to be deleted. As per the contents of written statement of defendant no.2, she admits about existence of two trust deeds as pleaded by the plaintiffs, but, denied the so called mis-management by deceased K.Vishweshwaraiah as alleged by the plaintiffs. It is the specific defence of defendant no.2 that, defendant no.1 is the private trust based upon the trust dated 15.5.1986. The earlier trust deed was revoked with the consent of the beneficiaries under Section 78 of the Indian Trusts Act, 1882. So far as aims and objects of said trust are concerned, it is admitted. It is contended that, the amount derived from the assets of the trust is utilized for the welfare and improvement of the trust. It is denied that, the said assets are utilized by deceased K.Vishweshwaraiah or by these defendants for their own purpose. As per the intention expressed by the trustees, new rights are created as per
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 trust deed of 1986. With regard to possessing of movable properties as described in the plaint and its value at 2.5 lakhs rupees, is specifically denied.
10. It is contended that, defendant nos.2 to 4 continued to be the trustees of the first defendant throughout. It is contended that, by passage of time, the said trust deed underwent some rectifications by the author. There were various litigations between parties to the suit and most of the litigations are instituted by the plaintiffs to cause harassment to deceased K.Vishweshwaraiah who is their own father. With regard to filing of a suit in OS NO.52/74 by the second plaintiff seeking partition and obtaining of a preliminary decree, is admitted. It is contended that, leave ought not have been granted by the Prl.City Cvil Judge to file the present suit as the claim of the plaintiffs is outside the purview of Sec.92 of CPC.
11. It is contented that, deceased K.Vishweshwaraiah during his life time executed a `Will'
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 on 22.5.1992 with codicil. He died leaving the properties mentioned in the `Will' bequeathing his share in property bearing No.40/48, II Crsss, K.V.Layout, 4th Block East, Jayangar. Her foster daughter Sumithra is one of the beneficiary. Even as per codicil also, he was the Managing Trustee and by virtue of the Will, she succeeded his rights to manage the trust. Hence, amongst other grounds, it is prayed by defendant no.2 to dismiss the suit.
12. Based upon the rival pleadings of both the parties, the learned trial Court settled six issues as under:-
1) "Whether the plaintiffs prove defendant no.1 is a Public trust?
2) Whether the plaintiffs prove that the defendant Nos.2 and 3 are liable to be removed from the Trustee ship due to mis-management?
3) Whether the plaintiffs prove that the defendants 2 and 3 are liable to render accounts relating to the management of the 1st defendant Trust?
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4) Whether the defendant no.2 proves that the 1st defend ant Trust is a Private family Trust of late Sri K.Vishweshwaraiah?
5) Whether the 2nd defendant proves that the Trust deed dated 13.5.1975 ceases to exist due to execution of Trust Deed dated 15.5.1986?
6) What order?"
13. To substantiate the case of the plaintiffs, plaintiff nos. 1 and 2 respectively were examined as PW.1 and 2 and got marked Exs.P1 to P21 and closed plaintiffs' evidence. To rebut the evidence of the plaintiffs, defendant no. 2 was examined as DW.1 and got marked Ex.D1 to D5 and closed defendants' evidence.
14. The learned trial Court, on hearing the arguments and on evaluation of the evidence, answered issue nos. 1, 3 and 5 in the negative and issue no.4 in the negative and categorically held that plaintiffs have failed to prove the status of first defendant trust as a `Public Trust' but, in fact, it is a private trust and ultimately, dismissed
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 the suit of the plaintiffs. This is how, now the plaintiffs are before this Court challenging the dismissal of their suit.
15. Learned counsel for the plaintiffs would submit that, looking to the aims and objects of the Trust, it can be gathered that, it is the public trust, but, the learned trial Court has committed a palpable error in holding that, it is a private trust. Plaintiff nos. 1 and 2 are inter se brothers being the sons of deceased K.Vishweshwaraiah the earlier author of the trust and as, he mismanaged the assets and liabilities of the trust and started behaving as he was the absolute owner of schedule properties so described in the trust deed and has not accounted for the assets and liabilities, utilized the trust assets for his own purpose, thus, the plaintiffs filed the present suit. So far as filing of partition suit by plaintiff no.2 and obtaining a preliminary decree ultimately which culminated into a final decree with consent, it is not in dispute. That means, during the final decree proceedings, dispute was compromised and final decree was drawn. He would further submit that, because
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 of the conduct of deceased, K.Vishweshwaraiah and after his demise, the conduct of defendant No.2 clearly establish that, though the schedule properties belong to the entire family of plaintiffs and defendants, but, the trial Court has wrongly held that they are the trust properties and plaintiffs have no locus. In support of his submission, the learned counsel for the plaintiffs took us through various pleadings, evidence brought on record as well as position of law. It is prayed by the counsel for the appellant-
plaintiffs to allow the appeal and set aside the impugned judgment.
16. Per Contra, the learned counsel for defendant-
respondents on record would submit that, the reasons assigned by the trial Court for dismissal of the suit of the plaintiffs is justified. He would submit that, the said first defendant-Trust is a Private Trust, therefore, now the plaintiffs cannot claim any relief in the hands of this Court as they are not entitled for the same. He too relies on the
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 evidence led by the parties and findings of the trial Court and prays to dismiss this appeal.
17. We have given our anxious consideration to the arguments of both the side. With the assistance of learned counsel for the parties, we have gone through the entire evidence on record, oral as well as documentary.
18. In view of rival submissions of both the side, the points that would arise for consideration are:
i. Whether the first defendant-Trust is a Public Trust and during the lifetime of deceased K.Vishweshwaraiah and after his demise defendants are mismanaging the assets and liabilities of the first defendant Trust and hence, the plaintiffs' suit is required to be decreed as prayed for?
ii. Whether defendants prove that first- defendant Trust is a Private Trust and there is no mismanagement of assets and liabilities of the Trust at any point of time by deceased
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 K.Vishweshwaraih or the defendants as contended?
iii. Whether the finding of learned trial Court suffers from illegality, infirmity and without appreciation of evidence?
iv. If so, whether judgment and decree of the trial Court requires interference by this Court?
Our answers to the above points are in the negative for the following reasons:
Point nos. 1 to 4 are discussed together:
19. PW.1 being plaintiff no.1 has stated in line with the plaint averments in his evidence on oath. According to PW.1, the aims and objects of the first defendant-Trust have been enumerated in Trust Deed dated 13.3.1975.
Authors of the Trust in all contributed Rs.404/- as initial payment and also four vacant sites valued at Rs.40,000/- situated at 4th Block East, K.V.Layout, Jayanagar, Bengaluru described as A Schedule property. According to
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 him, the salient features of Trust are, to provide medical facilities to the needy persons in and around Bengaluru, hostel facilities both boarding and lodging to the poor students irrespective of caste and religion and to receive donations for the benefit of the Trust. Thus, he is specific throughout his evidence that the said trust is a public trust. He would submit that, creation of 2nd trust by Vishweshwaraiah on 15.5.1986 superseding the earlier trust deed. Created doubt about the characters of deceased Vishweshwaraiah. He maintains that, each of the trustees contributed to the initial contribution so also two vacant sites valued at Rs.1,01,000/- He submits that, there is no mention about existing first defendant-Trust. It is a fact admitted by both the parties that, the Trust Deeds dated 13.5.1975 and 15.5.1986 constitute a single Trust.
20. It is the allegation of PW.1 that, whatever the income derived from 'A and B' schedule properties are expected to be utilized to meet out the aims and objects of the trust. PW.1 admits that, none of the trustees have any
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 power to utilize the assets and liabilities of first defendant- Trust for their individual benefits. So far as filing of suit in OS No.52/74 by plaintiff no.2 before the then Civil Judge Court, Bengaluru for partition and separate possession against his own father and others and decreeing of the suit is admitted by him. Defendants also admits the said fact. According to PW.1 during the pendency of the suit in OS No.52/1974, the trust was formed and joint family properties were transferred to the benefit of defendant no.1-Trust. He states that, the preliminary decree so passed in the aforesaid suit was challenged by deceased K. Vishweshwaraiah by preferring RFA No.40/1980 which was subsequently dismissed. He states with regard to compromise between the parties in FDP No.75/1990. According to him, he was enjoying the status of `Trusteeship' and now the defendants are acting detrimental to the interest of plaintiffs on the ill advise of somebody and refused to part with the property so allotted to PW.1 under the final decree. There was postponement of proceedings of FDP by deceased
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 K.Vishweshwaraiah. According to him, even there were proceedings under the provisions of the then Karnataka Rent Control Act against the tenants wherein deceased K.Vishweshwaraiah had pleaded that, it is he, who is the landlord of the properties. He also speaks about withdrawal of said petitions after they got impleaded in the said HRC proceedings.
21. The main allegation of the plaintiffs is that, the income from the tenanted properties, and Kalyan Mantap, have not been accounted by the deceased during his lifetime, so also the defendants. They used to fetch more rent per day and it is stated that because of the mismanagement by the deceased K.Vishweshwaraiah with regard to the assets and liabilities of the trust, so also the present respondents/Defendants, the plaintiffs, were constrained to file suit.
22. In support of his evidence, plaintiffs rely upon Ex.P1 to P20. The cross-examination directed to this PW.1 shows that, both the trust deeds are admitted by the
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 defendants. It is the specific contention of the defendants that, it is a private trust and the properties of the trust are being utilized for the welfare of the trust. PW.1 is specific that the properties so standing in the name of defendant no.1 trust was a joint family property. He admits that during lifetime of his father, he had seen the accounts relating to first defendant trust but, to prove the said fact, except his say, there is no evidence placed on record by this plaintiff no.1. The evidence so stated by PW.1 shows that, for the second trust, his own relatives were the trustees and the members of public were not taken as trustees. He further states that, in the management of second trust, there was no interference by the public.
23. It is the defence of defendants that, for the purpose of payment of income tax, said K.Vishwesharaiah had taken exemption but, PW.1 denies the same. Throughout the examination-in-chief and even in cross- examination PW.1 states that, the schedule properties are the joint family properties. He admits that, the suit in OS
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 No.3983/94 ended in a compromise and after reading the same only he has signed the compromise petition. He has denied all suggestions directed to him. Even, he denies about execution of the 'Will' by his father, but, states that, at the time of filing the compromise petition, he had read the 'Will', but, further says that, he had not read any codicil of that 'Will'. That means, this PW.1 is having knowledge about the 'Will' executed by his father K.Vishweshwaraiah. Throughout the cross-examination, though he is consistent with regard to alleged mismanagement but no documentary evidence is produced to show that, first defendant trust is a public trust and its assets are mismanaged by the author of the trust K.Vishweshwariah.
24. PW.2 K.V.Sathyanarayana speaks in line with the evidence of PW.1 and relies upon Ex.P1 to P20. He admits that, except the rent received from Kalyan Mantap, and the open place, the trust has no other income. He admits that, during the life time of his father, he was
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 looking after affairs of the trust. His evidence is very much silent about the first defendant trust is public trust. The nature of evidence spoken to by PW.1 and 2, do demonstrate that, the said first defendant trust never constitute as a public trust but, it is a private trust authored by K.Vishweshwaraiah and his family members only. Though the aims and objects of the trust are, to do the charitable service to the general public at large, especially weaker sections of the society, but, there is no evidence placed on record by the plaintiffs that, the donations are taken from the public to improve the trust activities. Even the nature, aims, objects and the clauses so stated in the initial trust deed 1975 marked at Ex.P1 and the second trust deed dated 15.5.1986 produced by the plaintiffs never show that, it is a public trust. It is named as `Sri Ranganath Swamy Kaveti Trust'.
25. DW.1 defendant no.2 has denied all the allegations made in the plaint in her evidence and specifically contends that, it is a private trust and never
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 constituted public trust. It is not in dispute that, this K.V.Sathyanarayapanna plaintiff no.2 filed suit 15.2.1984 seeking partition and separate possession of the properties and the said suit came to be decreed as per the judgment dated 9th October 1979. The copy of the same is produced at Ex.P3. Ex.P4 is the compromise petition filed in FDP No.75/1990 and the family properties of the plaintiffs and K.Vishweshwaraiah were the subject matter of the suit including the properties so stated in the trust deed as per the case of the defendants. This fact is not denied by the plaintiffs.
26. The other documents are, the proceedings under the Karnataka Rent Control Act, notices so issued by the plaintiff no.1 calling upon other trustees to appoint a managing trustees for which the other trustees replied and questioned the very status of plaintiff no.1 to call the meeting. Though DW.1 has been cross-examined at length but, she has withstood the test of cross-examination. PW.1. has admitted the 'Will' of his father at the time of
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 signing the compromise petition as per his own admission As per the said 'Will' restriction was put to defendant no.2, not to alienate the properties so stated in the Will Ex.D3. All the trustees have got rights in the properties. But, now plaintiffs challenge the very act of K.Vishwershwaraiah as well as defendant No.2. Defendants also relied upon various evidence.
27. Pertinently, it may be observed that, with regard to the creation of the Trust, proceedings started on 13.5.1975 when Ex.P1 was authored by deceased K.Vishweshwaraiah, K.V.Ramesh Kumar i.e. plaintiff no.1, Smt.Umadevi Defendant no.2 and Sathyanarayana. All of them became the trustees of first defendant by contributing Rs.101/- each along with the immovable properties so mentioned at Schedule 'A' in the trust deed marked at Ex.P1. As per the contents of this trust deed, it was recited that the trustees have to contribute money from time to time either by themselves or by the members of the respective families or by the members of the
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 general public for the purpose of the trust as stated in the trust deed.
28. The learned counsel for the plaintiff much relies upon the aims and objectives of the trust, so also the aforesaid recital and submits that, as there is a provision for contribution from general public, it is a public trust. Merely because there is a recital as stated above, it does not mean that, the first defendant is a public trust. Clause no.4 of trust deed Ex.P1 specifically speaks about "any vacancy in the trusteeship by reasons of death, insolvency or resignation may be filled up by the surviving trustees and preferably from the legal representatives of the deceased trustee in case the vacancy is caused by death." This clause no.4 mandates to fill vacancy from family only. Certain powers have been given to trustees, so also with regard to management, control of the property etc.
29. Ex.P2 is authored by the same trustees by adding one more family member by name K.Vasudevaiah.
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 This Ex.P1 is superseded by authoring this Ex.P2. The same recitals and clauses are incorporated in this Ex.P2 which are not in dispute.
30. It is not in dispute that K.V.Sathyanarayana one of the trustee filed a suit for partition and separate possession in OS No.52/1974 and the said suit was decreed on 9.10.1979 granting a preliminary decree awarding 1/3rd share in A schedule properties. The subject matter of the suit as well as the trust properties are similar in nature and they are one and the same. To that effect, plaintiffs themselves have produced Ex.P3. On perusal of the contents of judgment, it shows that, deceased Vishweshwaraiah had constructed Kalyana Mantapa, so also other tenements which are leased out. He also has made other constructions in the property belonging to the trust. The income from the said properties is utilized for the purpose of welfare of the trust. Even Ex.P4, the compromise petition filed before the FDP Court also recites with regard to the creation of the
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 trust with a religious and charitable object and the parties have settled their disputes mutually and divided the available properties of the joint family only among themselves and kept the properties of the trust which are directed to be jointly managed by all the members of the family only. Even it is recited that, the defendant Nos.1 and 2 in the said suit had undertaken to incorporate the name of the trust so also the name of the plaintiffs as a trustee by incorporating necessary amendment to the deed by passing the resolution.
31. No doubt, deceased K.Vishweshwaraiah filed the petitions under the provisions of then Karnataka Rent Control Act for eviction of the tenants. The trustees got impleaded in the said petitions stating that, they have also got right in the properties in question. The certified copies of HRC petitions are produced by the plaintiffs at Ex.P8 and P9. On demise of K.Vishweshwaraiah, it was K.V.Rameshkumar i.e., plaintiff no.1 issued notice as per Ex.P11 with a request to all the trustees to attend a
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 meeting in his house to appoint a managing trustee as the managing trustee died. To that, reply was given by the defendants stating that, the plaintiff no.1 had no such right to call such a meeting etc., These events which are stated above are not disputed by the plaintiffs.
32. The plaintiffs specifically contend that, first defendant trust is a public trust. Evidently, Managing Trustee K.Vishweshwaraiah died in the year 1994 after authoring Ex.P2 the fresh Trust Deed.
33. Whether the first defendant is a public trust or otherwise, we have to look into the definition of the trust as defined under the provisions of the Bombay Public Trust Act, 1950 (in short `the BPT Act). Section 2(13) defines `the Public Trust' as under:
"Section 2(13) "Public trust" means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, [church, synagogue, agiary or other place of public religious worship,] [a dharmada] or any other religious or charitable endowment and a society formed either for a religious or charitable
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 purpose or for both and registered under the Societies Registration Act, 1860;"
34. The aforesaid definition of public trust came up for consideration before the Hon'ble Apex Court in Bala Shankar Maha Shanker Bhattjee and orthers v. Charity Commissioner, Gujarat State, reported in AIR 1995 SC 167. The Hon'ble Apex Court after referring the definition of public trust in para.7 of the judgment held as under:
"7. A bare conjoint reading of the two definitions would show that the definition of public trust is an inclusive one bringing within its ambit, an express or constructive trust for which a public religious or charitable purpose or for both which includes a temple, a math, a wakf, a dharmada or any other religious or charitable endowment and a society formed either for religious or charitable purpose or for both and a registered society under the Societies Registration Act. A public place by whatever designation is temple when it is used as a place of public religious worship. It must be dedicated to or for the benefit of or used as of right by the Hindu
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 community or any section thereof, as a place of public religious worship."
35. Like that, the question whether temple or a public trust or a private trust had come up for consideration before the Hon'ble Apex Court in Deoki Nandan v. Murlidhar and others, reported in AIR 1957 SC 133. The Apex Court highlighted the distinguishing features between the private and public trust. The distinction between private trust and public trust, it is observed by the Hon'ble Apex Court that, "The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment."
36. If this analogy is applied to the present facts of the case, the beneficiaries are the trustees who intended
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 to implement the clauses with regard to social service to the public at large. No doubt they cannot be called as beneficiaries but, there is no evidence placed on record that, any of the public is being benefitted by the activities of the Trust. Even the rent being accrued from the tenements was utilized by Managing Trustee as per the allegations made by the plaintiff and that receipt of the rent from the said tenants have not been questioned even right from 1975 onwards till 1986, when the second trust deed came into existence and even thereafter till filing of the suit. So far as the temple constructed in the said property, the Hon'ble Apex Court in Hari Bhanu Maharaj of Baroda v. Charity Commissioner, reported in AIR 1986 SC 2139 observed that "one of the crucial tests for determining whether a temple is intended for private worship or public worship is to find out whether the temple has been constructed within the precincts of residential quarters or in a separate building. In this case the Mandir is within the precincts of the residential quarters of the
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 appellant but the High Court has failed to give due consideration to this aspect of the matter."
37. Here in this case, the property owned by the family of the plaintiffs and trust properties are devoted or dedicated to the first trust. Income from the properties so mentioned in the trust deed was utilized towards construction of temple as well as other tenements. Now the dispute has arisen between plaintiffs and defendants that, plaintiffs claim that, it is a public trust but, defendants contend that it is a private trust. Therefore, one of the features that is to be taken into consideration by the Courts, while deciding this fact, the nature of the trust being formed. There is no evidence placed on record by the plaintiffs to show that, it is a public trust and the public have got access over the same. In Kapoor Chand and others v. Ganesh Dutt and others, reported in 1993 Supp (4) SCC 432, the Hon'ble Apex Court has held with regard to the temple or a trust. It is held that "a place in order to be a temple, must be a place for public
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 religious worship used by such place and must be either dedicated to the community at large or any section thereof as a place of public religious worship. It is further held that, distinction between a private and public temple is now well settled".
38. Here in this case, the family members of the plaintiffs and defendants are worshipping in the said temples so stated in the plaint. As it is settled that, an idol is a juristic person, capable of holding property, there is no evidence placed on record that, the said temple is dedicated to the beneficial interest of the public at large. No doubt, the beneficiaries are the worshippers, dedication may be oral and can be inferred from the conduct or from the given set of facts and circumstances. But, in this case, none of the ingredients with regard to dedication of said properties for public use is not brought on record by the plaintiffs by leading cogent and acceptable evidence. So to say, this dedication to the public may be proved by readiness or circumstances obtainable in given facts and
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 circumstance. In given set of facts, from the evidence placed on record by the plaintiffs, it is not possible to prove actual dedication of the properties which may be inferred on the proved facts that the said properties are the public properties and public religious worship has been used as of right by the public or a section thereof at such place without let or hindrance. No such evidence is placed on record. No inference can be drawn from the facts brought on record by the plaintiffs to show that, it is a public trust.
39. Further, Hyderabad High Court in Duvvuri Rama Krishna Rao Trust v. Deputy Commissioner, reported in 2015 SCC OnLine Hyd 307 has observed with regard to distinction between public and private trust. In para.26 of the said judgment, the said Court relied upon the judgment of the Apex Court in Shri Vithal Rukhamai Sansthan v. The Charity Commissioner, State of Bombay with regard to the features of a public trust in a given case. It is observed as under:
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 "26. In Dhaneshwarbuwa Guru Purshottambuwa owner of Shri Vithal Rukhamai Sansthan v. The Charity Commissioner, State of Bombay, the Apex Court while considering the Bombay Public Trust Act, which defined the public trust and laid down certain tests to determine whether a trust is a public or private trust, held as follows:
It is not always possible to have all the features of a public trust in a given case. Even some of the tests laid down by Supreme Court may, in a given case, be sufficient to enable the court to come to a conclusion about the character of the trust.
When the origin of an endowment is obscure and no direct oral evidence is available, the Court will have to resolve the controversy about the character of the trust on documentary evidence, if any, the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purpose, as a matter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship, the accretion to the trust property by way of grants from the State or gifts from outsiders inconsistent with the private
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 nature of the trust, the nature of devolution of the property, are all important elements in determination of the question whether a property is a private or a public religious endowment."
40. If the observations of the Hon'ble Apex Court and the law with regard to the private and public trust as defined under the provisions of Bombay Public Trust, so also Indian Trust Act, are applied to the given facts, from the evidence placed on record, it is not proved by the plaintiffs that, it is the public trust in the manner alleged by them and it can never be stated that, this is a public trust. That means, in a public trust, dedication is for the use of benefit of public. When property is set apart for worship of family god in which public are not interested, dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at page 529 of his Principles of Hindu Law (11th Edn.)-- it is observed that, such a Trust is a private one and not public trust. For better appreciation, it is incorporated as under:
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009 "Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."
41. In the said book, the learned author dealt with distinction between public and private trust. Therefore, the plaintiffs have utterly failed to prove about the status of defendant no.1 as public trust and rightly the trial Court has given a finding that, the plaintiffs have failed to prove their case with legal evidence.
42. We do not find any factual or legal error committed by the trial Court in coming to such a conclusion. As per the Trust Deed at Ex.P2, plaintiffs and defendants shall act upon and take care of the activities of the Trust. Hence, the aforesaid points for consideration are answered against the plaintiffs and in favour of the defendants.
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NC: 2025:KHC:7915-DB RFA No. 1097 of 2009
43. In view of our discussion as aforesaid, the appeal filed by the appellant fails and is liable to be dismissed. Resultantly, we pass the following:
ORDER i. Appeal is dismissed.
ii. Judgment and decree dated 27.8.2009 passed in OS NO.7102/94 by the I Addl.City Civil and Sessions Judge, Bengaluru City (CCH-2) is confirmed.
iii. No order as to costs.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE SK/CT:VG List No.: 19 Sl No.: 1