Bangalore District Court
A.S. Gupta vs ) Shree Kashi Vishwanath Vidya on 1 August, 2022
KABC0A0042592019
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.26637/2019
Dated this 1st day of August 2022
Plaintiff:- A.S. Gupta, Aged about 82 years,
S/o Late Thalavaria,
Address at No.33,
Jayamahal Road,
J.C. Nagar, Bengaluru-46.
(Party in Person)
V/S
Defendants:- 1) Shree Kashi Vishwanath Vidya
Mandir Seva Trust,
Represented by its Chief Trustee,
The plaintiff's knowledge there is only one
Trustee the 2nd Defendant.
2) Smt. Shashi Rekha,
W/o Late Vishwanath Dewedi,
Aged about 55 years,
3) Sri Deepak V S/o Late Vishwanath Dewedi,
Aged about 29 years,
2 OS.No.26637/2019
Judgment
KABC0A0042592019
4) Sri Srinath V,
S/o Late Vishwanath Dewedi,
Aged about 25 years,
Defendants No.1 to 4 are
R/at in a portion of Sri Kashi Vishwanth
Vidhya Mandir, No.33, Old No.2,
Jayamahal Road, J.C. Nagar,
Munireddy Palya,
Bengaluru-06.
(-Exparte-)
Date of Institution of the suit 03/12/2019
Nature of the (Suit or pro-note, suit Declaration
for declaration and possession, suit
for injunction, etc.)
Date of the commencement of 01/02/2020
recording of the Evidence.
Date on which the Judgment was 01/08/2022
pronounced.
Year/s Month/s Day/s
Total duration 02 07 28
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
3 OS.No.26637/2019
Judgment
KABC0A0042592019
:JUDGMENT:
This is a suit filed by the sole plaintiff against defendant No. 1 to 4, of which defendant No. 1 is a trust, for the relief of declaration that, alleged Trust Deed setting up the defendant No. 1 trust dated 06/03/1991 is revoked and extinguished and also for declaration that the said trust was used for illegal purposes and said Trust Deed was never acted upon.
2) On issue of suit summons, defendant No. 1 to 4 were duly served and placed ex parte. In the exparte evidence, the plaintiff has examined himself as PW 1 and got marked the documents at Ex. P1 to P4 and thereafter, closed his side of evidence. Since, the defendants are ex parte, there is no cross-examination of PW 1. Thereafter, the learned counsel for the plaintiff has filed written arguments on 02/07/2022 and I have perused the same. 4 OS.No.26637/2019
Judgment KABC0A0042592019
3) Since the defendant are ex parte and hence no issues are framed in this case, at this stage, the following points are framed for consideration;
1. Whether the plaintiff proves that he is entitled to the declaration as sought for in the suit?
2. What order?
4) My answer to the above points are;
Point No. 1: In The Negative Point No. 2: As Per Final Order For The Following;
:: REASONS ::
Point No. 1 :-
5) The facts in brief as pleaded in the plaint are that, the plaintiff had initially taken the suit schedule property on 5 OS.No.26637/2019 Judgment KABC0A0042592019 permanent lease under registered lease deed dated 21/12/2008 which was executed by the husband of defendant No. 2 and father of defendant No. 3 and 4 - late Vishwanath Dwivedi and the said permanent lease was rectified as the registered sale deed dated 08/01/2010 and since then, the plaintiff is absolute owner in possession of suit schedule property and he has constructed building on the same. It is the plaint averments that, the said permanent lease deed and the sale deed were executed by aforestated Vishwanath Dwivedi without disclosing to the plaintiff about the existence of defendant No. 1 trust. When things stood thus, it is pleaded that, the said Vishwanath Dwivedi has instituted OS 4993/2018 contending that the said suit schedule property is actually the trust property of defendant No. 1 trust and the plaintiff by misusing his status as an advocate has got executed the said lease deed and sale deed in his favour.
Contending that, at no point of time, the suit schedule property 6 OS.No.26637/2019 Judgment KABC0A0042592019 was treated as a trust property and the khata of the suit schedule property was changed into the name of Vishwanath Dwivedi after the death of his father and therefore, it was his absolute property which he has sold to the plaintiff and the trust never came into being and it is an illegal trust and under the guise of the trust, on 30/07/2018 the defendants have trespassed into the suit schedule property and committed theft of various movables from the law chamber of the plaintiff, the present suit is filed for declaration that the alleged Trust deed dated 06/03/1991 which is registered in the office of the sub- registrar, Gandhinagar is revoked and extinguished and to declare that the trust was used for illegal purposes and the trust deed was never acted upon.
6) In his affidavit evidence, PW 1 has reiterated the plaint averments and got marked Ex. P1 to P4. Ex. P1 to P3 are the 3 bank account statements of the plaintiff to show the various 7 OS.No.26637/2019 Judgment KABC0A0042592019 payments made by him to aforestated Vishwanath Dwivedi and also to the defendant No. 2 to 4. Ex. P4 is the certified copy of the trust deed dated 06/03/1991.
7) Having appreciated the oral and documentary evidence on record, although the defendants have not contested the suit and therefore, the pleadings of the plaintiff as well as the oral and documentary evidence led by the plaintiff have remained undisputed, the present suit is liable to be dismissed for the following reasons.
8) Firstly, it is to be noted that, the plaintiff is a stranger to the trust. Therefore, the plaintiff has no locus standi to seek declaration regarding the revocation of the trust deed or extinguishment of the trust. The grievance of the plaintiff is simply that, by playing fraud on the plaintiff and by claiming to be the absolute owner of the suit schedule property, the late 8 OS.No.26637/2019 Judgment KABC0A0042592019 Vishwanath Dwivedi who is the husband of defendant No. 2 and father of defendant No. 3 and 4 executed permanent lease deed dated 21/12/2008 registered on 29/01/2009 which was later rectified as the sale deed on 08/01/2010, by receiving huge amounts as evidenced in the bank statements at Ex. P1 to 3 and having sold the suit schedule property to the plaintiff and after the plaintiff has put up construction thereon and is in possession, it is the plaintiff's grievance that the said Vishwanath Dwivedi has filed OS 4993/2018 contending that the suit schedule Property is actually trust property and therefore, Vishwanath Dwivedi in his individual capacity could not have alienated the same to the plaintiff and thereby challenging the alienation in favour of the plaintiff. It is the specific case of the plaintiff as per the pleadings at page 6 paragraph 7 of the plaint that, after the demise of Ramakishore Shastry who was the father of Vishwanath Dwivedi, the khata of suit schedule property was changed into the name of 9 OS.No.26637/2019 Judgment KABC0A0042592019 Vishwanath Dwivedi in his individual capacity and therefore, it was never treated as trust property. On this basis, it is the plaintiff's case that, the suit schedule property was in fact absolute property of Vishwanath Dwivedi which he has sold the same to the plaintiff under the aforestated sale deed dated 08/01/2010. Such being the case of the plaintiff, it is clear that, the plaintiff is only interested in the suit schedule property and the plaintiff seeks to protect his title & possession to the same. If so, it is for the plaintiff to file necessary suit seeking declaration in respect of the suit schedule property with consequential relief if so advised and in-fact as per the plaint averments, Plaintiff has already filed OS 9387/2018 and OS 9388/2018, which are suit for possession and mandatory injunction. However, on the ground that the plaintiff is the absolute owner of the suit schedule property and aforestated Vishwanath Dwivedi has filed the suit contending that the suit schedule Property is trust property, the 10 OS.No.26637/2019 Judgment KABC0A0042592019 plaintiff cannot seek any declaration against the trust deed or against the trust, but, at the most, the plaintiff can only seek declaration in respect of his title to the suit schedule property.
9) Apart from this, it is to be noted that, admittedly the question whether the suit schedule property is trust property or absolute property of Vishwanath Dwivedi which has been sold to the plaintiff, is pending consideration in OS 4993/2018 which is referred to at paragraph 4 of the plaint. Such being the case, it is for the plaintiff to defend his title & possession to the suit schedule property in the said suit or if so advised to file fresh suit seeking declaration and any other relief in respect of the suit schedule property and by no stretch of imagination, the plaintiff being a stranger to the trust can seek any relief in respect of the trust deed or against the trust to declare that the trust has been extinguished. In fact, even according to the plaint at page 6 11 OS.No.26637/2019 Judgment KABC0A0042592019 paragraph 7 the plaintiff has filed OS 9387/2018 and OS 9388/2018 which are suit for possession and mandatory injunction. Therefore, it is clear that, it is for the plaintiff to seek his remedies in the said suits and the present suit challenging the trust deed is not maintainable since the plaintiff has no interest in the trust but the plaintiff is only concerned with the suit schedule property.
10) Even otherwise, it is to be noted that once a public trust is created there is no question of extinguishment of the trust and the court will endeavour to ensure that the public trust should not fail but should be executed cypress. The doctrine of cypress is explained in the case of Pir Tirath Nath v. Chief Settlement Commissioner, 1962 SCC OnLine Punj 234 : ILR (1963) 1 P&H 385 at page 387 :
12 OS.No.26637/2019
Judgment KABC0A0042592019 In so far as the doctrine of cypres is concerned, here again, the counsel does not seem to be on sound basis. The cypres doctrine, broadly stated, would connote that when a general charitable intention is expressed by the donor, it would not be permitted to fail on the ground that the mode, if specified, cannot be executed, and, that the law would substitute another mode as near as possible to the mode specified. The real core of this doctrine would appear to me to be that when the donor has prescribed a particular mode of application, which mode is incapable of being performed, but the donor's overriding or dominant charitable intention transcends the particular mode of the prescribed application, the Court is entitled to carry out the dominent charitable intention as if the particular direction did not exist at all. But when the particular mode of application is the essence of the donor's intention and that mode becomes incapable of being performed then the Court cannot possibly have any power to direct any other charitable application in place of the one which has failed. In other words, where the funds left by the donor cannot be applied in the exact manner dictated by him, it should be applied beneficially to similar purposes by different means, but this can be done only if a general, intention of a charitable gift is imputable to the donor. Thus, if a charitable performance is limited to a particular object or to a particular institution and there is no general charitable intention, then even if it becomes impossible to carry out the object, the doctrine of cypres cannot possibly be applied. Now, if this be the true scope and effect of this doctrine, then I am unable on the existing record, to find any material which would show the original intent of the donor. But then, this apart, there is no endowed property here which is to be applied 13 OS.No.26637/2019 Judgment KABC0A0042592019 according to the cypres doctrine. What the petitioner desires is that the Government should give him property under the compensation law to enable him to establish an institution of which he should be allowed to act as a trustee on lines similar to those on which Samadhi Pir Nidhi Nath used to be run in village Mukhad in West Pakistan. The counsel has cited three decisions in support of his contention. Ratilal Panachand Gandhi, etc. v. State of Bombay, etc., [ A.I.R. 1954 S.C. 388.] on which reliance has principally been placed merely lays down the essential ingredients of the doctrine of cypres, but the facts of that case have no resemblance to those before me. According to this decision when the particular purpose for which, a charitable trust is created fails or by reasons of certain circumstances, the trust cannot be carried into effect either in whole or in part, or where there is a surplus left after exhausting the purposes specified by the settler, the Court will not, when there is a general charitable intention expressed by the settler, allow the trust to fail but will execute it cypres, that is to say, in the same way as nearly as possible to that which the author of the trust intended. It is obvious that this observation does not vest the petitioner with a right to ask the Government to allot to him property under the Compensation Act. Board of Commissioners for the Hindu Religious Endowments v. Parasram Veeraraghavacharlu, etc. [ A.I.R. 1937 Mad. 750.] ; is equally unavailing to the petitioner and so is Mohatap Bahadur v. Kali Pada Chatterjee, etc. [ A.I.R. 1914 Cal. 200] . (Emphasis Supplied) 14 OS.No.26637/2019 Judgment KABC0A0042592019
11) Therefore, in the case on hand, since the defendant No. 1 trust which is created under the trust deed at Ex. P4 is a public charitable trust, there is no question of extinguishing the same.
For this reason also, the prayer of the plaintiff to declare that the trust is revoked and extinguished and that the trust is being used for illegal purposes cannot be accepted and trust deed was never acted upon cannot be granted. It is to be noted that whereas it is the case of the plaintiff that the trust never came into existence and has never acted as such, the plaintiff has not produced any document in this regard or adduced any other evidence apart from his own self-serving evidence. This is another reason for refusing to grant the relief of declaration sought for in the plaint.
12) The result of the above discussion is that, for all the reasons noted supra, the plaintiff is not entitled to the relief of declaration sought for in the plaint & the present suit is liable to be dismissed 15 OS.No.26637/2019 Judgment KABC0A0042592019 and accordingly, I answer the point No. 1 for consideration in the negative.
Point No. 2 :
13) Having answered Point No. 1 as above, I proceed to pass the following;
:: ORDER ::
The suit of the plaintiff is hereby dismissed, with cost.
Office to draw decree accordingly.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 1st day of August, 2022] (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.16 OS.No.26637/2019
Judgment KABC0A0042592019
-:ANNEXURE:-
WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : A.S. Gupta S/o Late Thalavaria
DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1to3 : Three Bank Accounts Statements Extracts
Ex.P4 : Certified copy of Trust Deed
WITNESSES EXAMINED FOR DEFENDANTS:
-Nil-
DOCUMENTS MARKED FOR DEFENDANTS:
-Nil-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE.