Abdul Buhari Aged 69 Years vs Ramlath Memorial Charitable Trust on 16 October, 2012

[Cites 5, Cited by 0]

Kerala High Court

Abdul Buhari Aged 69 Years vs Ramlath Memorial Charitable Trust on 16 October, 2012

This appeal is filed by petitioners 1 to 4 and 6 in O.P.(Trust) No.235/2011 of the Additional District Judge-II, Thiruvananthapuram. By the said application the appellants sought leave under Section 92 of the Code of Civil Procedure to institute a suit against the first respondent Trust called as "Ramlath Memorial Charitable Trust." The learned Additional District Judge, mainly for the reason that the appellants have not established existing interest in the trust, rejected the application.

2. We heard learned Senior Counsel for the appellants Shri P.B. Sureshkumar and learned counsel for the respondents Shri L. Mohanan.

3. We will now refer to the necessary facts required for the disposal of the appeal. The parties are referred to as arrayed in this appeal. The first respondent Trust is a registered public charitable Trust constituted by one late Dr. Abdul Jabbar, who was a medical practitioner. The appellants claimed that they are representing the public who are beneficiaries and FAO No.10/2013 -2- interested in the welfare and proper functioning of the Trust. The second respondent is one of the original Trustees of the Trust and sister of Dr. Abdul Jabbar. The third respondent is the 2nd wife of Dr. Abdul Jabbar, the 4th respondent is the brother of the 2nd respondent, and the 5th and 6th respondents are the children of Dr.Abdul Jabbar born out of the wedlock of the 3rd respondent. The 7th respondent in the appeal is the 5th petitioner in the original petition.

4. The Trust was constituted in the year 1992 by way of Deed No.2988 dated 20.8.1992 to perpetuate the memory of late Dr. Abdul Jabbar's mother Ramlath. Its office is situated at Simi Mahal, Puthukurichy, in a land having 23 cents in extent which is the ancestral property of Dr. Abdul Jabbar. The main object of the Trust is to establish educational institutions, orphanages, housing colony for the poor and other institutions for charitable purpose. According to the Trust deed, initially Dr. Jabbar will be the managing Trustee and his sister Safia Beevi will be one of the Trustees and his uncle Shri O.A. Rahim will be another Trustee. The appellants further pointed out that the Trust had acquired 34 cents of property in Sy. No.259/4 and R.S.No.7/10 of Puthukurichy Village and has FAO No.10/2013 -3- constructed 20 low cost concrete houses which were given to most underprivileged poor and needy Muslim families in the locality. The Trust also constructed a Namaskarapally exclusively for women as well as a Yatheemkhana (orphanage) in another item of property having an extent of 60 cents in the same village and it was meant for imparting education, food, accommodation and clothing to boys who are orphans. It further constructed a tailoring institute to provide classes in tailoring to poor and needy women in the locality. Computers were also installed in the tailoring institute to provide basic training in computer operation. A full-fledged school was established to provide education upto 7th standard The Trust established a hospital named A.J. Hospital, in 39 cents of land purchased by it. Puthukurichy is a coastal area which is one of the backward areas in Thiruvananthapuram district and the majority of the people belong to Muslim and Christian communities who depend upon fishing and coir weaving as their main livelihood. Dr. Abdul Jabbar was born and brought up in Puthukurichy. In the Central School at Puthukurichy having CBSE syllabus, the Trust was providing free uniform, books, etc. to the poor and needy students. A.J. Hospital is a multi speciality hospital wherein FAO No.10/2013 -4- treatment is given on reasonable cost and also free to poor and needy. It was alleged that after the death of Dr. Jabbar, the affairs of the Trust became affected. The activities became crippled and except the hospital, all other institutions have been closed also.

5. With regard to the locus standi of the appellants, it was contended that the first counter petitioner Shri Buhari was in Gulf countries along with Dr. Abdul Jabbar and was closely associated with him and he has donated money for the various institutions of the Trust and for the Yatheemkhana. The second counter petitioner is one of the beneficiaries of free homes provided by the Trust. The third counter petitioner was also provided employment as Computer Teacher who belongs to a very poor community. The fourth counter petitioner is residing in one of the free homes constructed by the Trust and she had also studied in the tailoring institute. She is interested in the proper functioning of the Trust. The fifth counter petitioner is a social activist and is a Panchayat member of Puthukurichy area. He is interested in the Trust as a resident and as a ward member he is interested in the welfare of the public in the locality who were benefited from the activities of the Trust. The sixth counter petitioner is a boy who FAO No.10/2013 -5- was benefited immensely by the establishment of Yatheemkhana by the Trust by providing free food, clothing and education through various institutions of the Trust and the closure of the various institutions has affected the people of the locality. Various allegations have been made to contend that there is a real breach of the object clauses of the Trust and the affairs are not being held properly. Charitable activities are in a standstill. Finally, in paragraph 41 of the petition, it is stated that the appellants/petitioners are the representatives of the people having real, substantive and existing interest in the betterment of the Trust and the suit has been filed with the object of protecting the interest of the Trust as well as the beneficiaries of the Trust. A decree is sought for preparing a scheme for the Trust and various other reliefs have also been sought.

6. A counter affidavit has been filed by respondents 1 and 3 to 6 against the application. Therein it was contended that this is the 4th round of legal battle faced by the Trust under Section 92 of the C.P.C.itself, which is filed at the instance of the second respondent. The details of the earlier cases have been stated in the counter. It is submitted that the attempt is to vindicate the individual right of the second respondent who was removed FAO No.10/2013 -6- from the Trust. Mention is also made about the suit filed earlier, as O.S. No.422/2008 before the Munsiff's Court, Thiruvananthapuram by her against her removal. It is alleged that actually the appellants are seeking reliefs because of the removal of the second respondent.

7. Shri P.B. Sureshkumar, learned Senior Counsel mainly contended that the locus-standi of the appellants/counter petitioners cannot be doubted. All of them are the beneficiaries of the Trust and therefore they have satisfied the necessary conditions for the grant of leave in the light of the principles stated by the Apex Court in Swami Shankaranand (dead) by Lrs. v. Mahant Sri Sadguru Sarnanand and others {(2008) 14 SCC 642} and T. Varghese George v. Kora K. George and others {(2012) 1 SCC 369} and the Madras High Court in Kumudavalli and another v. P.N. Purushotham (AIR 1978 Madras 205). It is submitted that , true that on an earlier occasion the matter came up before this Court at the instance of other petitioners in a similar application for grant of leave which was interfered with and the judgment is reported in Ramlath Memorial Charitable Trust v. Peerukannu (2009 (4) KLT 848). It is submitted that therein the finding by this Court was that a mere statement by the parties FAO No.10/2013 -7- that they are beneficiaries and well-wishers of the Trust are not sufficient, but herein sufficient grounds have been pleaded in the petition. But the learned Judge was carried away by the earlier proceedings and the orders passed therein. The appellants are not parties to them. It is submitted that the allegation raised against the Trust mainly regarding the closure of various institutions and other illegalities in the affairs of the Trust and stoppage of charitable activities have not been denied in the counter statement. It is therefore submitted that the view taken by the court after making a comparison with the pleadings in the earlier case, that the petitioners have no locus-standi and real interest, is not correct. It is submitted that the real test is whether the petitioners are agitating a public right. It is submitted that apart from being persons in the locality, the appellants have pleaded their intimate association with the Trust, the benefits they were getting from the Trust and the benefits which may accrue to them as well as the public if the Trust properties are properly maintained and the institutions are restarted. Therefore, it is submitted that the view taken is not correct.

8. Learned counsel for the respondents submitted that the present FAO No.10/2013 -8- application is only a reproduction of the earlier application which was dismissed and really it is filed at the instance of the second counter petitioner who was removed from the Trust. One of the prayers sought for is to declare that deed Nos.81/2003 and 4113/2004 as illegal, null and void which is actually sought at the instance of the second respondent, who is affected by the execution of those deeds. It is therefore submitted that none of the points raised by the appellants can be considered as sufficient to maintain the application for leave. The application is ill-motivated. The same learned counsel who was appearing for the earlier round of litigation, was appearing for the parties herein also. For all these reasons, the view taken by the court below is perfectly justified, submitted by the learned counsel for the respondents.

9. A reading of the order passed by the learned Additional District Judge will show that after referring to the various decisions of this Court and the Apex Court discussing the requirements for grant of leave under Section 92 C.P.C., the learned Judge took the view that mere assertions that the petitioners are well-wishers and beneficiaries of the Trust would not create any interest in the Trust so as to lay a claim under Section 92 C.P.C. FAO No.10/2013 -9- Such interest must be an existing interest and not a mere contingency. The interest of the petitioners should be one to vindicate a public right in the Trust. Regarding the first petitioner, it was stated that the mere self-serving assertions of the first petitioner are not sufficient to hold that he has got an interest in the Trust, more so, in the absence of any evidence indicating the same, at least primafacie. Then, the learned Judge went on to consider another aspect. viz. to find out the real purpose or object behind the institution of the suit. After referring to the earlier round of litigations, it was held that the respondents are right in contending that the nature of the allegations set up, as also the reliefs sought for in the earlier case, are one and the same as canvassed in this original petition. Accordingly, it was held that bona fides cannot be found on the part of the petitioners in the light of the previous litigations.

10. We will now refer to the decisions relied on by the appellants. The principles stated by the Apex Court in Swami Shankaranand (dead)'s case {(2008) 14 SCC 642} with regard to locus-standi, in paragraphs 11 and 13 are the following:

"In a case of this nature, the judiciary exercises the jurisdiction of FAO No.10/2013 -10- parens patriae and, thus, when an objection is filed for grant of sanction in terms of Section 92(1)(f) CPC, the same should receive serious consideration. A third party can be a "person aggrieved" in a case of sale of Trust property under Section 92(1)(f) CPC if the third party establishes that he is otherwise interested in the welfare of the Trust."

Learned Senior Counsel highlighted his point by referring to the above principles, to contend that the appellants have locus standi in the matter.

11. In T. Varghese George's case {(2012) 1 SCC 369}, with regard to the framing of a scheme for a Trust, three petitioners approached the court. It was held that a suit will lie under Section 92 where two or more persons having interest in Trust make out a case of alleged breach of any Trust created for public purposes or for directions of court for administration of Trust. Among the three persons who filed the suit, one was a member of Board of Trustees, second raised funds for buying lands for Trust institutions and for construction buildings of Trust school and third, a parent of a student of Trust Institution. It was held that all the three persons had interest in the Trust and hence the suit was maintainable.

12. In Kumudavalli's case (AIR 1978 Madras 205), relied upon by FAO No.10/2013 -11- Shri P.B. Sureshkumar, learned Senior Counsel, it was held in paragraph 4 as follows:

"A resident of the locality who has some nexus or connection with the Trust in the sense that he has interest in its well-being and prosperity can under certain circumstances, be taken to be a person having an interest in the Trust. In the case of a public school such presumption could also be raised if he is an old student of the School, which necessarily involves a connection with it and if he is also a resident of the locality in which the School is situate he is doubly qualified to lay an action along with another under S.92."

13. Since the previous application and its rejection have been relied upon by the learned counsel for the respondents and in the impugned order in rendering a finding against the appellants, we will discuss the points that have been considered by this Court in Ramlath Memorial Charitable Trust's case (2009 (4) KLT 848). Therein, the learned Single Judge considered the matter in a revision petition filed by the respondent Trust herein against an order whereby leave was granted by the court. A reference to the pleadings therein which are extracted in paragraph 2 of the judgment shows that the petitioners therein approached the court by stating FAO No.10/2013 -12- that they are beneficiaries and well-wishers" of the Trust. It was contended by the respondent Trust that there is nothing more to show the interest of the petitioners in the Trust as they are total strangers to the Trust. The only allegation was that they are "well-wishers and beneficiaries of the first counter petitioner Trust. In paragraph 4 of the judgment, the learned Single Judge found as follows:

"But the larger question remains whether the petitioners have any interest in the trust. True, they need not show 'a direct interest', but, their interest in the trust should be real, substantial and existing. Petitioners are members of the minority community residing at the places in which the trust carries its objectives or envisages of putting up institutions for the upliftment of the weaker sections of that community, is not sufficient to show that they have an interest in the trust in the petition. A mere statement that the petitioners are well wishers and beneficiaries of the trust without any thing more, is not sufficient to show that they have any interest in the trust to obtain leave for instituting a suit for the relief under S.92 of the C.P.C. The question whether a person has a real, substantive and existing interest in a particular trust so as to maintain an action under S.92 of the C.P.C. has to be determined factually on acceptable evidence and also with reference to the trust in relation FAO No.10/2013 -13- to which the suit is instituted. In case, the assertion of the petitioners that they are beneficiaries and well wishers of the trust as averred in their petition is taken as sufficient to show their interest in the trust to seek permission to sue, then, needless to point out, any one in the locality where the trust operates, who are members of the minority community, can come forward and seek permission to institute suits against the trust. Such a situation is wholly undesirable. Object of S.92 of the C.P.C. is to prevent people from interfering with the administration of the public trust of a charitable or religious nature by instituting frivolous suits."

Reliance was placed on the decisions of the Apex Court in Narayana Pillai Gopala Pillai v. Smt. Jyothi Prakasini Devi (1991 (2) KLT 458) and Vidyodaya Trust v. Mohan Prasad (2008 (2) KLT 68). Therefore, the view taken is that a mere statement that petitioners are the beneficiaries and well-wishers of the Trust is not sufficient. It should be further shown that permission is sought to vindicate the right of the public and the interest should be one for vindicating the public right.

14. We will refer to the averments made by the petitioners in the crucial paragraphs, to explain their locus standi which are contained in paragraphs 15 to 21 of the petition. We extract these paragraphs for easy FAO No.10/2013 -14- reference:

"15. The 1st petitioner Buhari was born and brought up at Puthukurichy and he left for gulf in his early twenties in search of a livelihood. In 1970 it was he who helped late Abdul Jabbar to come to Abudhabi and they stayed together and shared the same apartment till 1976. Dr. Jabbar by that time had developed a good practice at Abudhabi. That I myself had established business enterprises in Alien. That I as well as Dr. Jabbar shared one common goal in life i.e. to work for the welfare of the poor and needy especially those belonging to Muslim community and other minority community in Puthukurichy area. That the 1st petitioner even though worked in gulf was actively involved in social activities in his home land in Puthukurichy especially through the Jamaat of Puthukurichy, of which he was the president from 1980-82. It was long cherished dream of Dr. Jabbar to empower his downtrodden brethren in Puthukurichy, his home land and thereby devote a good portion of his wealth for charitable purpose as envisaged in holy Quran. Dr. Jabbar had constantly discussed with the fist petitioner about the forming of a Trust in name of his father and mother. The 1st counter petitioner Trust was constituted to perpetuate the memory of his mother by engaging in welfare activities through the Trust constituted in her name in Puthukurichy area. That I had helped Dr. Jabbar for the purpose of starting of Trust by helping in setting up of various FAO No.10/2013 -15- institutions and had ensured to him all the support of Jamaat and had donated money for building infrastructure for the Trust. That I had voluntarily contributed money for the functioning of the various institutions of Trust, especially the yatheemkhana. That whenever I came to Puthukurichy from gulf I had given aid in terms of money and also had sponsored providing of free book, uniform, etc. to needy students of Puthukurichy school.

16. That the 2nd petitioner is a person belonging to the most economically backward section of society, her husband is a fisherman by profession and was residing in thatched hut in the seashore. That she is one of the beneficiaries of free homes provided by the Trust. It is no exaggeration to say that the roof over her head and daily bread is provided by the Trust. That the 2nd petitioner had worked in all the institutions of Trust. In the hospital she had worked as last grade employee. She had worked as aya in the school and yatheem khana. Her daughter had studied in the tailoring institute run by the Trust that her entire family is residing in the free homes provided by the Trust. There are many people like the 2nd petitioner who had been benefited from the activities of the Trust whom she represents.

17. The 3rd petitioner is also a resident of Puthukurichy and was born and brought up there. That she was provided employment as computer teacher in the school run by the Trust at Puthukurichy. That the petitioner being a person coming from a poor economic FAO No.10/2013 -16- background and with limited academic qualification could obtain a job only because of the consideration given to her by the Trust taking into consideration its objectives. That there are ever so many young women like her in Puthukurichy who could be provided a livelihood by the functioning of the Trust.

18. The 4th petitioner is a resident of Puthukurichy and was born and brought up there. She is residing in one of the free homes constructed by the Trust for the needy and the poor. That she had studied in the tailoring institute during the periods 1995-97. That her father and husband are both fishermen by profession and her mother a coir weaver. That she has three children all being minors, the proper working of the institutions of Trust would provide them better education, health care and also a means of livelihood. There are ever so many families like her in Puthukurichy, which is looking forward for the proper functioning of the Trust.

19. The 5th petitioner is a social activist and is a panchayat member of Puthukurichy area. Being a person who was born and brought up in Puthukurichy, he has seen the growth and fall of various institutions of the Trust. He has seen the immense benefit the people of the region were gaining from these institutions. His interest in the Trust is as a resident of Puthukurichy and is a ward member interested in the welfare of the public in the locality benefiting from the philanthropic activities of Trust. FAO No.10/2013 -17-

20. That the 6th petitioner is a yatheem boy who has benefited immensely from the functioning of the Trust. He had been provided food, shelter, clothing and education and health care through the various institutions of the Trust like yatheemkhana, school and hospital. The closure of the various institutions of the Trust had been a bludgeon for he people of the locality.

21. That the petitioners are beneficiaries of the Trust and has been associated with the activities of the Trust and is earnestly interested in the proper administration and functioning of the institutions of the Trust, for it would be great benefit socially as well as economically for the people belonging to poor strata of the society and also Muslim and other minority community and especially to the people of the locality."

15. That the Trust was formed as a Public Trust is beyond dispute. It had acquired properties for establishing various institutions and to construct low cost concrete houses which were given to underprivileged, poor and needy Muslim families. An orphanage was also functioning apart from a tailoring institute. In the orphanage boys were being given education, food, accommodation, clothing, etc. and in the tailoring institute classes were being taken to poor and needy women in the locality. Computer classes were also being conducted. Another important institution is A.J. Hospital at FAO No.10/2013 -18- Kazhakoottam apart from a Central School. According to the averments in the petition, except the Hospital, all other institutions are not functioning. As regards the first petitioner, even though his monetary contribution to the Trust is not mentioned in the petition, learned Senior Counsel submitted that there is no specific denial of the same in the counter statement. As far as the second petitioner is concerned, there is clear averment that she is one of the beneficiaries of free homes provided by the Trust which is not disputed in the counter statement. It is also averred that she had worked in all the institutions of the Trust and in the hospital she had worked as last grade employee. She had also worked as Aya in the school and yatheem khana and her daughter had studied in the tailoring institute run by the Trust. These averments were also not denied in the counter statement. As regards the third petitioner, she was provided employment as computer teacher in the school run by the Trust at Puthukurichy. She could obtain a job only because of the consideration given by the Trust. The same is not denied in the counter statement. As regards the fourth petitioner, the averment is that she is residing in one of the free houses constructed by the Trust for the poor and needy and that she had studied in the tailoring institute during the FAO No.10/2013 -19- period 1995-97. Her children being minors, the proper working of the institutions of the Trust would provide them better education and also means of livelihood. It is also stated that her father and husband are both fishermen by profession and her mother is a coir weaver. The sixth petitioner is a yatheem boy who had benefited immensely from the functioning of the Trust. He had been provided food, shelter, clothing, education and health care through the various institutions of the Trust like yatheemkhana, school and hospital. The closure of the various institutions of the Trust has adversely affected the people of the locality.

16. All of them have stated that similarly placed persons in the locality have been benefited and are entitled for the benefit out of the charitable activities of the various institutions of the Trust and the affairs of the Trust, therefore, will have to be conducted properly.

17. Of course, the learned Judge has discussed only the averments with regard to the locus standi of the first petitioner alone and then went on to consider the details of the previous litigations. The averments made as regards the other appellants have not been discussed. In effect it was held in para 17 that the contentions cannot hold good in the light of the decision FAO No.10/2013 -20- in Ramlath Memorial Charitable Trust's case (2009 (4) KLT 848).

18. We are of the view that going by the averments made by the appellants, it cannot be said that they are total strangers to the activities of the Trust and apart from stating that they are people from the locality, they have shown the details of their real interest in the Trust and its properties and institutions. Many of them are beneficiaries of the Trust and the institutions run under it. Since they want the restoration of activities of the Trust for the benefit of the needy and the poor, they are definitely interested in espousing public interest. Relief No.5, seeking a declaration of deed Nos.81/2003 and 4113/2004 as null and void, cannot stand in the way of grant of leave.

19. One of the points raised by the learned Senior Counsel for the appellants is that the allegations with regard to the improper management of the Trust and its properties have not been specifically denied in the counter filed. For the purpose of considering the locus-standi of the appellants, the averments we have extracted will sufficiently establish it, FAO No.10/2013 -21- especially in the light of the principles stated by the Apex Court in the decisions relied upon by the learned Senior Counsel for the petitioners. In fact, a discussion of the various aspects pointed out by the learned Judge in Ramlath Memorial Charitable Trust (2009 (4) KLT 848) will also show that the crucial averments made by the petitioners herein are not the same as was made in the said case which were found to be lacking in showing the direct interest. But herein, it cannot be said that the appellants are only raising their private interest in the matter. The persons who have been beneficiaries of the Trust, have come up before the Court espousing the cause of theirs as well as similarly placed persons in the locality. Therefore, interest of the public in the matter is evident. It is a real and substantial interest. They have highlighted the stoppage of various charitable activities of the Trust which was the main object.

20. The averments in the previous original petition filed for leave cannot have a bearing on the pleas of the present appellants, since they were not parties to the same and it was not filed by them also. Therefore, those averments cannot be put against them. The filing of the suit by the second respondent herein also cannot go against the appellants' claim and FAO No.10/2013 -22- the said argument was rightly rejected by the court below also.

21. For all these reasons, we find that the appellants are entitled to succeed. Accordingly, the appeal is allowed and the impugned order is set aside. We grant leave as sought for by the appellants and there will be a direction to the court below to proceed in accordance with law. No costs.

(T.R.RAMACHANDRAN NAIR, JUDGE) (K. ABRAHAM MATHEW, JUDGE) kav/

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