Karnataka High Court
Guru Sarvabhuwma Trust And Ors vs Vasudevrao And Prs on 6 June, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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RFA No. 200121 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR FIRST APPEAL NO. 200121 OF 2017 (DEC/INJ)
BETWEEN:
1. GURU SARVABHUWMA TRUST
THROUGH ITS MANAGING TRUSTEE,
M.B.NAGAR, KALABURAGI.
2. DONDERAO S/O SANJEEV RAO KULKARNI
AGE:72 YEARS, OCC: R/O SRI VENKATESHWAR
NILAYA MG ROAD, 1ST CROSS MB NAGAR,
KALABURAGI- 585105.
Deceased on 09.04.2019 and suceeded by other
Trustees 3 to 9
Digitally signed
by RAMESH 3. SADANAND AGNIHOTRI S/O GOVIND RAO
MATHAPATI
Location: HIGH AGNIHOTRI, AGE:72, OCC:PENSIONER,
COURT OF
KARNATAKA R/O DATTA KRUPA H.NO.4-601/8, 2ND CROSS
ROAD, MB NAGAR, KALABURAGI 585105.
4. RAMAKRISHNA KAMLAPURKAR S/O PRAHALADRAO
KAMALAPURKAR,
AGE:67 YEARS, OCC:PENSIONER,
R/O SHREE DHAM, H.NO.4-601/11A MG ROAD,
MB NAGAR KALABURAGI - 585105.
5. RANGANATH DESAI S/O VENKAT RAO
AGE:53 YEARS, OCC:CONTRACTOR,
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RFA No. 200121 of 2017
R/O VENKATA DESAI, H.NO.4-601/32 MG ROAD,
MB NAGAR, KALABURAGI - 585105.
6. SHAMRAO KULKARNI S/O BABURAO
AGE:65 YEARS, OCC:GOVT.SERVANT,
R/O H.NO.4-601/48D 4TH CROSS, MB NAGAR,
KALABURAGI - 585105.
7. RAGHAVENDRA S/O DATTATREYA BORANGAONKAR
AGE:70 YEARS, OCC:PENSIONER,
R/O H.NO.4-601/21B 1ST CROSS, MB NAGAR,
KALABURAGI- 585105.
8. MALHAR RAO S/O MELIGIRIRAO KULKARNI
AGE:72 YEARS, OCC:PENSIONER, R/O H.NO.4-
601/44/A2, 4TH CROSS, MB NAGAR,
KALABURAGI - 585105.
9. MOHAN RAO PATIL S/O BALWANTRAO PATIL
(HADANOOR)
AGE:62 YEARS, OCC:AGRICULTURE,
R/O H.NO.4-601/35B MB NAGAR,
KALABURAGI - 585105.
...APPELLANTS
(BY SRI HARSHAVARDHAN R. MALIPATIL,ADVOCATE)
AND:
1. VASUDEVRAO S/O VENKATRAO DESAI,
AGE:52 YEARS, OCC:EMPLOYEE ING VYSYA BANK,
R/O MB NAGAR, KALABURAGI-585102
2. ASHOK S/O SHAMRAO KULKARNI
AGE:55 YEARS, OCC:PRIVATE SERVICE,
R/O MB NAGAR, KALABURAGI-585102
3. KALYAN ACHAR S/O PRALHADA ACHARYA JOSHI,
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RFA No. 200121 of 2017
AGE:55 YEARS, R/O VEDIC PREACHER,
R/O MB NAGAR, KALABURAGI-585102
4. VIDYADHAR S/O BHEEMRAO JOSHI
AGE:60 YEARS, OCC:BUSINESS,
R/O GANESH NAGAR, KALABURAGI-585102
5. RAGHAVENDRA RAO HOSURKAR S/O GOVINDRAO,
AGE:67 YEARS, OCC:RTD. GOVT.SERVANT,
R/O SAPTAGIRI, H.NO.601/28B,
MB NAGAR, KALABURAGI-585102
6. SUBHASH S/O NEELKANTHRAO KULKARNI
AGE:51 YEARS, OCC:PRIVATE SERVICE,
R/O NEW EXTENSION,
MB NAGAR,
KALABURAGI-585102
...RESPONDENTS
(BY SRI R S. SIDHAPURKAR AND SRI VIKRAM VIJAYKUMAR
ADVOCATES)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI
RULE 1 OF CPC, THIS APPEAL WITH COST AND SET ASIDE THE
THE JUDGMENT AND DECREE DATED 23.09.2017 PASSED IN
O.S.NO.03/2010 PENDING ON THE FILE OF THE PRL. DIST.
JUDGE AT KALABURAGI WHEREIN, THE SUIT WAS DECREED IN
PART
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 200121 of 2017
JUDGMENT
1. The defendants (except defendant nos.4 & 11) are in appeal.
2. Defendant nos.4 & 11 have not been joined in appeal since they had passed away during trial.
3. Vasudevrao and five others instituted a suit seeking for a declaration that the Trust Deed dated 02.02.2009 was null and void and the same was prepared without framing any scheme. They sought for directions to be issued for framing a scheme for the administration of the Trust called 'Guru Sarva Bhumma Trust'.
4. They also sought for a direction to be issued to defendant nos.2 to 4 to produce all accounts, papers and vouchers relating to the Trust and to render accounts of the Trust. A declaration was also sought for that the Trust Deed dated 09.09.1982 and the Supplementary Trust Deed dated 07.10.2008 was subsisting in respect of the Trust and lastly they sought for a declaration that removal -5- RFA No. 200121 of 2017 of Vasudevrao from the Trusteeship was illegal and without authority of law.
5. The plaint was presented before the Trial Court on 16.08.2010 and was accompanied by an application under Section 92 of the CPC for grant of leave/permission to institute a suit, which was numbered as IA No 1.
6. Another application under Order XL Rule 1 of CPC for appointing an Administrator or Receiver until a Scheme for administration of the Trust was framed in terms of the order passed in W.P.No.80614/2009 was also filed and the same was numbered as IA No 2.
7. The Registry of the Trial Court registered the suit and placed the papers before the Court on 27.08.2010, on which date, the Trial Court directed issuance of suit summons and also notices of I.A.Nos.1 & 2 to all the defendants.
8. It was the case of Vasudevrao and others that the Brahmin devotees of Sri Raghavendra Swamy of -6- RFA No. 200121 of 2017 Mantralaya, who were residing in and around M.B.Nagar Colony, Sedam Road, Gulbarga, had installed a holy brindavana of Sri Raghavendra Swamy and had secured the allotment of two plots bearing Nos.99 & 100 and another open space measuring 60' x 120' in land bearing No.21 from the City Corporation of Gulbarga and a temple was also constructed on the said allotted land by raising donations in the year 1982. It was stated that in order to manage and run the temple, a Trust had been created by the devotees authorizing one Shamrao Kulkarni to form a Trust, and accordingly, a Trust under the name of 'Guru Sarvabhuwma Trust' consisting of seven Managing Trustees was created and a Trust Deed was also executed on 09.09.1982 and the same was also registered.
9. It was contended that right from the creation of the Trust, no accounts had been maintained and all the offerings made to the Temple in the form of money or food grains had not been accounted at all and the Trust was being run more in the nature of a Family Trust by -7- RFA No. 200121 of 2017 defendant nos.2 to 4. It was contended that there was no provision made in the Trust for retirement and re-election of Trustees and in the absence of such provisions, there was no accountability to the public by the Trustees and they had failed in their duties to effectively manage the Trust which had resulted in heavy losses.
10. It was stated that in the year 2008, the surviving trustees were of the view that there was a necessity to include some more trustees to run the Trust and with the consent of the devotees, a Supplementary Deed was executed, whereby plaintiff no.1 - Sri Vasudevrao was inducted as a Trustee and this Supplementary Deed was executed on 07.10.2008.
11. However, it was stated that at the time of execution of this Supplementary Deed, defendant no.2 - Donderao was omitted from the Trust on the ground that there were certain irregularities and as a consequence, he had instituted a suit in O.S.No.475/2008 to restrain the other Trustees from interfering with the temple affairs. It was -8- RFA No. 200121 of 2017 stated that in the said suit, an application for injunction was made which was, however, dismissed on 18.12.2008 and the said dismissal was challenged by way of an appeal in M.A.No.47/2008. It was stated that this appeal was allowed on 30.01.2009, against which, Prahaladrao Kamlapukar and Ramakrishna Kamlapukar - defendant nos.4 & 5 had preferred W.P.No.80614/2009 before this Court and in the said writ petition, a joint memo was filed, whereby defendant nos.2 to 4 i.e., Donderao, Sadanand Agnihotri and Prahaladrao Kamlapukar had agreed to retain plaintiff no.1 - Vasudevrao as one of the Trustees and it was also agreed that the original Trust Deed would be amended in the terms agreed upon and on the basis of this joint memo, the writ petition was disposed off.
12. The plaintiffs contended that defendant nos.2 to 4 instead of effecting the amendments as agreed to in the joint memo filed in W.P.No.80614/2009, had got another Trust Deed registered and had omitted to induct Vasudevrao as a Trustee and this was a clear violation of -9- RFA No. 200121 of 2017 the joint memo that had been filed before this Court. It was stated that this Trust created under the supplementary Trust Deed dated 02.02.2009 was illegal and without authority of law. It was contended that though there was no provision in the Trust Deed of the year 1982 or 2008 to remove a Trustee or omit a Trustee, the office bearers had removed plaintiff no.1 - Vasudevrao without even passing a resolution and therefore, there was clear mismanagement.
13. It was alleged that defendant nos.2 to 4 had colluded with each other and had got the Trust Deed of the year 2008 cancelled and had created another Trust Deed in the year 2009 which indicated that the Trust was being mismanaged and as a consequence, there was likelihood of embezzlement and therefore, it was essential for the plaintiffs to approach the court for framing of a scheme. It was also stated that a legal notice had been issued prior to the filing of the suit.
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RFA No. 200121 of 2017
14. As stated above, the Registry of the Trial Court registered the plaint as a suit and the court issued notices on the application filed for grant of leave and also for appointing an Administrator apart from issuance of suit summons.
15. Defendant nos.2 & 3, on service of notice entered appearance and contested the suit by filing a written statement.
16. The defendants denied the plaint averments and also took up the plea that the suit was not maintainable in its present form. They also contended that the court had no jurisdiction to declare the Trust Deed dated 02.02.2009 as null and void, and the court also had no jurisdiction to issue directions to frame a scheme.
17. Defendant nos.2 & 3, however, did not dispute the fact that a joint memo had been filed in W.P.No.80614/2009 and they also admitted that as per the joint memo, the Trust Deed had not been amended
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RFA No. 200121 of 2017and plaintiff no.1 - Vasudevrao had also not been inducted as a Trustee. They, however, contended that this was not a violation of the joint memo as this court had suggested that two names were to be given from each side, but, the writ petitioner had given three names instead of two and the third name proposed by the writ petitioner was Vasudevrao - plaintiff no.1. It was state that since this was contrary to the understanding of parties as per the joint memo filed before the High Court that only two persons were to be co-opted, the name of Vasudevrao was not included.
18. After the written statement was filed, the Trial Court took up the application for grant of leave under Section 92 of CPC and passed an order on 04.09.2014 granting leave to the plaintiffs to institute the suit. Before this order was passed, the defendants were heard and their objections were also considered.
19. It is also not in dispute that this order granting leave to institute the suit as contemplated under Section 92 of
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RFA No. 200121 of 2017CPC was accepted by the defendants, in as much as, no challenge was made to the order passed by the Trial Court by preferring an appeal.
20. The Trial Court, thereafter, proceeded to frame eight issues.
21. On behalf of the plaintiffs, Vasudevrao was examined as PW-1 and two other witnesses were examined as PWs-2 & 3. In all, 16 documents were admitted in evidence and marked as exhibits.
22. On behalf of the defendants, defendant no.2 - Donderao was examined as DW-1 and 7 documents were admitted in evidence and marked as exhibits.
23. The Trial Court, on consideration of the pleadings and the evidence, came to the conclusion that the assertion of the plaintiffs that the Trust Deed dated 02.02.2009 was registered without any scheme was partly true. The Trial Court also took the view that the plaintiffs had established
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RFA No. 200121 of 2017the assertion that the court had to formulate a scheme for the administration of the trust was partly sustainable.
24. The Trial Court, however, took the view that defendant nos.2 to 4 were not liable to furnish the accounts of the Trust since the allegation of misappropriation had not been established.
25. The Trial Court also took the view that the Trust Deed dated 09.09.1982 and the supplementary Deed dated 07.10.2008 were subsisting and the plaintiffs had established, in part, that the removal of plaintiff no.1 from the trusteeship was illegal and without any authority of law.
26. The Trial Court accordingly proceeded to decree the suit in part and held that the supplementary Trust Deed dated 07.10.2008 and the supplementary Trust Deed dated 02.02.2009 were required to be cancelled. The Trial Court directed that a fresh supplementary Trust Deed was required to be registered, in which the four persons named
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RFA No. 200121 of 2017in the joint memo which had been filed in W.P.No.80614/2009 was required to be included within one month and the newly inducted Trustees along with the other Trustees were required to effectively administer and manage the Trust as well as the temple and brindavana.
27. Being aggrieved by this decree, the defendants are in appeal.
28. Learned Counsel Sri Harshavardhan R.Malipatil appearing for the appellants contended that the entire proceedings culminating in the decree of the suit would have to be held to be void since the suit had been instituted without obtaining leave prior to its institution. He also submitted that unless the leave of the court was obtained prior to the institution of the suit, the registration of the suit was itself non-est.
29. Learned Counsel also submitted that grant of a leave after the suit had been registered would not cure the defect and the suit would have to be dismissed as being
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RFA No. 200121 of 2017violative of the mandatory condition contemplated under Section 92 of the CPC. He placed reliance upon the judgment of the Apex Court rendered in the case of R.M.NARAYANA CHETTIAR & ANOTHER Vs. N.LAKSHMANAN CHETTIAR & OTHERS - AIR 1991 SC 221 and also a Division Bench ruling of the Kerala High Court in A.S.No.136/2001, apart from the decision of a Co- ordinate Bench of this Court rendered in W.P.No.9267/2022 on 30.09.2022.
30. On the merits of the claim, learned Counsel submitted that though a joint memo had been filed in W.P.No.80614/2009, the non-compliance of the joint memo could not be questioned by the plaintiffs who were not parties to the writ petition. He contended that if any person was aggrieved by the alleged contravention of the joint memo filed in the writ petition, it was only those persons who were parties to the writ petition who could make a grievance about the same and initiate legal proceedings. It was submitted that the persons who were
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RFA No. 200121 of 2017not parties to the writ petition cannot secure a right under the joint memo to be included as trustees, and therefore, the directions of the Trial Court was illegal.
31. Learned Counsel also sought to contend that the understanding of the parties in W.P.No.80614/2009 was that two persons should be nominated by each side, but Donderao - defendant no.2 had suggested three names, and therefore, the third name suggested by him would have to be discarded. It is submitted that since plaintiff no.1-Vasudevrao was the third person suggested by Donderao, he had rightly been omitted from the Trust and was not inducted as a Trustee.
32. Learned Counsel appearing for the respondents, on the other hand, supported the impugned order and contended that the Trial Court was perfectly justified in decreeing the suit having regard to the fact that the plaintiffs were trying to hoodwink this Hon'ble Court and were trying to fundamentally get over the joint memo that had been filed before this Court. It was contended that
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RFA No. 200121 of 2017once a joint memo had been filed in which the warring parties had declared that the persons named in the joint memo should be the Trustees, it was impermissible for the defendants to discard one name from among the four and register a supplementary Trust Deed. He, therefore, submitted that the Trial Court has merely corrected the error committed by the Trust and has rightly directed plaintiff no.1 to be also inducted by the execution of an appropriate supplementary Trust Deed.
33. Having regard to the contentions advanced by the learned Counsel for both parties, the point that would arise for consideration in this appeal is :
Whether the Trial Court was justified in directing the registration of a fresh supplementary Trust Deed by including the four persons named in the joint memo that had been filed in W.P.No.80614/2009, and thereby inducting plaintiff no.1-Vasudevrao as a Trustee?
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34. At the outset, it would be necessary to consider the legal contention advanced by the learned Counsel for the appellants that the entertainment of the suit and the adjudication of the suit on its merits was illegal since the institution of the suit was not preceded by obtaining leave, would have to considered before considering the merits of the claim.
35. Section 92 of CPC1 states that a suit complaining pf a breach of any express or constructive Trust, can be instituted by two or more persons having an interest in the Trust, only after leave of the court had been obtained. In this regard, it would be necessary to extract Rule 16-A of the Karnataka Civil Rules of Practice, 1967, which deals with an application seeking leave of the court under Section 92 of the CPC. Rule 16-A reads as follows: 1
Public charities: (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit,...
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"16-A(1) An application, seeking leave of the court to file a suit under section 92 of the code, shall be made by two or more persons having an interest in the trust.
(2) such an application shall be accompanied by a copy of the plaint proposed to be filed (3) such an application shall be treated as an independent and substantive application and be designed as miscellaneous petition.
(4) An application seeking leave to file a suit under section 92 of the code shall, be disposed of by the principal judge or in his absence the senior most judge of the court after giving an opportunity of leaving to the applicants:
Provided that if the court considers necessary to hear the opposite party also, the court may order issue of notice to the opposite party and pass orders on the application after giving an opportunity of hearing to both the parties.
(5) when the leave is granted by the court as sought for, the suit shall be deemed to have been instituted on the date of filing of miscellaneous petition, provided persons who have obtained leave, pay the requisite court fee on the plaint within the time granted by the court."
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RFA No. 200121 of 2017
36. As could be seen from the said Rule, the application is required to be accompanied by a copy of the plaint which is proposed to be filed and an application so filed is required to be treated as an independent and substantive application and would be designated as a miscellaneous petition. It also contemplates that the application seeking leave would have to be disposed off by the Principal Judge after giving an opportunity of hearing to the applicants.
37. The proviso to Rule 16-A(4) states that if the Court considers it necessary to hear the opposite party, it may order issue of notice to opposite party and pass orders on the application seeking leave after hearing both the parties. It is thus clear that the persons in charge of the Trust or the Trust cannot claim as a matter of right that they a right to be heard before the Court grants leave. In fact, the language of the proviso, indicates that a discretion is vested in the Court to hear the persons in charge of the Trust before considering the application for grant of leave to institute the suit.
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RFA No. 200121 of 2017
38. Learned counsel for the petitioner, however, sought to place reliance on the decision of the Apex Court in the case of R.M.Narayana Chettiar cited supra to contend that grant of leave is a condition precedent for the institution of the suit and if a suit is instituted without leave, it would not be maintainable at all.
39. It must be stated here that the Apex Court in the said decision has clearly stated that the objective underlying Section 92 of CPC and by the use of the language thereof, it would be a rule of caution that the Court should normally, unless it is impracticable or inconvenient to give notice to the proposed defendant before granting leave. The Apex Court has also held that this procedure was essential to ensure that frivolous plaints are not entertained in a mechanical manner.
40. It is to be stated here that the proviso to Rule 16- A(4) of the Rules basically reflect the same intent as declared by the Supreme Court and the proviso confers a discretion on the Court to hear the opposite party before it
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RFA No. 200121 of 2017considers the application for grant of leave. It cannot therefore be said that in the light of Rule 16-A (4) of the Rules and its proviso, the Court is bound to hear the opposite party complusorily before it considers the application for grant of leave.
41. It may also be pertinent to state here that the mandate of sub-rule (5) of Rule 16-A of the Rules is that the plaint that accompanies the application is deemed to have been instituted on the day of filing of the miscellaneous petition if the Court decides to grant leave. This essentially means, in law, the suit is deemed to have been instituted on the day the application for grant of leave is granted, though only a copy of the proposed plaint was required to be filed along with the application.
42. As noticed above, the application seeking for grant of leave is to be accompanied by a plaint and it is obviously only on a reading of the plaint, the Court can form an opinion, as to whether leave should or should not be granted. The effect of Rule 16-A (5) of the Rules is that
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RFA No. 200121 of 2017the moment the Court decides to grant leave, the suit is deemed to have been instituted and the date of institution is the date on which the application for grant of leave had been filed along with a copy of the proposed plaint. This indicates that though the proposed plaint is filed into Court along with the application for grant of leave, in law, it is deemed to have been instituted on the day leave was granted by the Court. It, therefore, also follows that until leave is granted, the plaint is on record only for the purpose of enabling the Court to form an opinion.
43. In this case, no doubt, the registry of the Trial Court has mechanically registered the suit and placed it before the Court and the Court has in turn issued suit summons and also notice on the application for grant of leave. In my view, this is a mere irregularity which in no way prejudiced the defendants. This is because, in law, the suit is deemed to have been instituted only on the leave being granted and the mere registration of the suit or issuance of notice cannot be considered as the suit being instituted under
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RFA No. 200121 of 2017Section 92 of CPC. In the light of this legal position, the argument of the learned counsel does not hold water.
44. Reliance placed upon the Division Bench ruling of the Kerala High Court would also be of no avail since it is not forthcoming from the said decision as to whether the suit had been instituted without an application and the order merely indicates that the suit had been proceeded without grant of leave.
45. Reliance placed upon the decision of a Co-ordinate Bench would also be of no avail since this Court has held that unless leave is granted, the Court has no jurisdiction to entertain the suit and in this case, admittedly leave had been granted before the merits of the claim in the suit was entertained.
46. As noticed above, in this particular case, the Trial Court did grant leave before it considered the claim of the plaintiffs and the defence of the defendants. The Trial Court embarked upon the determination of the merits of
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RFA No. 200121 of 2017the suit only after it granted leave. Having regard to the mandate of Rule 16-A(5) of the Rules, it cannot be said that the suit had been instituted without grant of leave.
47. As far as the merits of the suit claim are concerned, the following facts are not in dispute:
48. A Trust was created under the Trust Deed dated 09.09.1982 which was followed by creation of a supplementary Trust Deed on 07.10.2008 under which Donderao - defendant no.2 was omitted from the Trusteeship.
49. Donderao, in turn, instituted a suit in O.S.No.475/2008 challenging the execution and registration of the supplementary Trust Deed dated 07.10.2008. In the said suit, his request for grant of a temporary injunction to restrain the other Trustees from interfering with the affairs of the temple was rejected.
50. As against the said rejection, an appeal was preferred in M.A.No.47/2008 and the said appeal was
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RFA No. 200121 of 2017allowed by an order dated 30.01.2009, thereby injuncting the other Trustees from interfering with the affairs of the temple.
51. As against the allowing of the appeal and grant of injunction, W.P.No.80614/2009 was filed before this Court. In the said writ petition, a joint memo was filed, which read as under:
"The petitioner and respondent are filing this joint memo whereby they have mutually agreed that, along with them, the following four persons shall be trustees of Sri Guru Sarvabhauma Trust (Regd) M.B. Nagar Gulbarga.
1. Ranganath Desai S/o Venkat Rao Desai, Class I contractor, R/o M B Nagar, Gulbarga
2. Shamrao Kulkarni Ankalagi S/o Baburao Kulkarni Store suptd. in PWD, R/o M.B.Nagar, Gulbarga
3. Vasudev rao Desai S/o Venkat Rao Desai, R/o M.B.Nagar, Gulbarga
4. Raghavendra Rao Boregaonkar S/o Dattopanth R/o First Cross, M B Nagar, Gulbarga
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It is also agreed that the petitioner and respondent (all three trustees) shall be the managing Trustees of the Trust.
The parties shall get the original trust deed amended, in the above terms This joint memo is being filed by the parties on their own will and without any influence by any one."
52. This Court accepted the joint memo and passed an order in the following terms:
"The petitioners and the respondent filed a joint memo, which is signed by all the parties and also their counsel. The said joint memo is taken on record.
2. In terms of the joint memo, this writ petition is disposed of."
53. As could be seen from the joint memo as well as the order passed by this Court, both the parties to the dispute including defendant no.2 - Donderao categorically agreed that along with the existing Trustees, the four persons named in the joint memo would also be Trustees of the Trust. It cannot be in dispute that plaintiff no.1 was one
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RFA No. 200121 of 2017among the four persons named as Trustees and it cannot also be in dispute that it had been agreed upon that the three petitioners in W.P.No.80614/2009 and the sole respondent therein, (i.e., in all three) would be the Managing Trustees of the Trust and the original Trust Deed would be amended in the above terms.
54. As could be seen from the order of this Court, the joint memo was taken on record and the writ petition was disposed off in terms of the joint memo. The effect of this particular order is that the four persons named in the joint memo would have to be considered as the Trustees of the Trust along with the three petitioners and the sole respondent and the Trust Deed existing as on that date would have to be necessarily amended to bring it in conformity with the terms of the joint memo.
55. Despite the judicial order of this Court accepting the fact that four persons named in the joint memo were required to be considered as Trustees, the defendants
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RFA No. 200121 of 2017have proceeded to take up the following contentions in the written statement.
"It is false to say that the trust deed was not amended. It is true that name vasudevarao was not included in the trustees. It is submitted that this is not in violation of joint memo. In the above stated writ petition the high court suggested to give two names from each sides. But the writ petitioner gave three names instead of two names and third name proposed by the writ petitioner was that of plaintiff no.1. as per the understanding of the high court only two copersons were to be coopted as trustees and therefore only two persons were taken and the name of vasudevarao was not included."
56. As could be seen from the above, in essence, the defendants were trying to get over the joint memo that had been filed and which had been accepted by this Court. Once the defendants agreed for including four persons who were named in the joint memo as Trustees and undertook to amend the Trust Deed in terms of the joint memo, it was not open for them to disregard the contents
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RFA No. 200121 of 2017of the joint memo by omitting to include Vasudevrao - plaintiff no.1 as a Trustee.
57. The Trial Court, taking into consideration the joint memo that had been filed by this Court, has merely directed the Trust to act in terms of the joint memo and include plaintiff no.1 and the other persons who had been already included in the Trust Deed and execute a fresh supplementary Trust Deed. The Trial Court has also noticed that the defendants could not have disregarded the joint memo and the commitment that they gave before this Court. This reasoning of the Trial Court cannot be found fault with.
58. As far as the contention that the 1st plaintiff was not a party to the joint memo as well as the writ petition and therefore, it cannot be contended that he was required to be admitted as a Trustee is concerned, it is to be stated here that a solemn statement was made before this Court that the 1st plaintiff shall be the Trustee of the Trust along with three other apart from two petitioners and the
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RFA No. 200121 of 2017respondents and this solemn statement which was accepted by the Court cannot be disregarded. It would not be necessary for the 1st plaintiff to be a party because this Court was assured that the persons named in the joint memo would be the Trustees and this statement was made in order to comprehensively settle the dispute.
59. It is also to be stated here that a suit under Section 92 of CPC is essentially a suit to ensure that a Public Trust is managed to ensure that the objectives of the Trust are fulfilled and thereby public interest is safeguarded. In such a proceeding, the individual rights of Trustees would be secondary and the important aspect to be considered would be the fulfillment of the objectives of the Trust. Since a statement was made before this Court that the objectives of the Trust would be safeguarded by bringing an end to the litigation and including the four persons mentioned in the joint memo, the interest of the Trust was basically being safeguarded. The argument, therefore, that only the parties to the writ petition could have grievance
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RFA No. 200121 of 2017of non adherence to the terms of the joint memo is unsustainable.
60. I am, therefore, of the view that there is no merit in this appeal and the appeal is, therefore, dismissed.
Sd/-
JUDGE PKS List No.: 1 Sl No.: 36