Karnataka High Court
Sri M Subbarayappa vs Mysore State Vanhikula Kshathriya ... on 7 August, 2013
Equivalent citations: AIR 2014 (NOC) 254 (KAR.), 2013 (4) AKR 524
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07th DAY OF AUGUST 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.343 OF 2010
BETWEEN:
1. Sri. M. Subbarayappa,
Aged about 87 years,
Son of Muniswamappa,
No.96, Thigalarapet Main Road,
Bangalore - 560 002.
2. Sri. T. Shamanna,
Aged about 77 years,
Son of Chikka Thanappa,
Residing at No.272/1,
8th Main Road,
Sampangiramanagar,
Bangalore - 560 027. ...APPELLANTS
(By Shri. Padubidri Mohan Rao, Advocate)
AND:
1. Mysore State Vanhikula
Kshathriya (Thigalara) Sangha,
A registered Sangha,
No.28/1, 1st Cross,
2
J.C.Road, Bangalore-560 027,
Represented by its Secretary,
Sri. C. Krishnappa, the 2nd defendant.
2. Sri. C. Krishnappa, B.A.,
Aged about 70 years,
Son of Yajman B Chinnappa,
No.16, I Cross,
Lalbagh Fort Road,
Susheela Road Cross,
Doddamavalli,
Bangalore - 560 004.
3. Sri. Karepale Krishnappa,
Aged about 78 years,
Son of Muniswamappa,
Kumbarpet Main Road,
Bangalore - 560 002.
4. Sri. S. Sunder Raju,
Son of Late B.M. Shamanna,
Aged about 60 years,
Residing at No.13,
PVN Lane, Thigalarapet,
Bangalore - 560 002.
5. Sri. T.C. Shivaprasad,
Son of T. Chinnanna,
Aged about 58 years,
Residing at No.49/72,
Govindappa Road,
Basavanagudi,
Bangalore - 560 004.
3
6. Sri. G. Raju,
Son of Gundappa Gowda,
Aged about 62 years,
Residing at No.22,
Gundappa Gowda Road,
9th Cross, Ejipura,
Bangalore - 560 047.
7. Sri. M. Jayaram Gowda,
Son of Muniswamygowda,
Aged about 65 years,
Residing at No.5,
Bazar Street, 7th Cross,
Neelasandra,
Bangalore - 560 047.
8. Sri. C. Narayana,
Son of M. Chinnaiah,
Aged about 66 years,
Residing at No.9,
2nd Cross, Kargappa Garden,
Bangalore - 560 027.
9. Sri. S. Raghukumar,
Son of B.M. Shamanna,
Aged about 53 years,
B.M.S. Farm and Nursery,
13th K.M. Mysore Road,
Bangalore - 560 059.
10. Sri. A. Raja Gopal @ Gopi,
Son of Late Abbaiah,
Aged about 65 years,
No.3/3, 2nd Cross,
P.V.N.Lane, Thigalarapet,
4
Bangalore - 560 002.
11. Sri. M. Partha Sarathi,
Son of Late Munikalappa,
Aged about 59 years,
No.22/1, Heerachand Road,
Cox Town, Bangalore - 560 005.
12. Sri. M.P.Raju,
Son of Late Muniyellappa,
Aged about 45 years,
No.13/10, Austin Town,
Yerappa Garden,
Bangalore - 560 047.
13. Sri. K. Narayan,
Son of Late Krishnappa,
Aged about 80 years,
No.A-49, M.T.B. Road,
Journalist Colony,
Bangalore - 560 002.
14. Sri. K. Nagraju,
Son of Late G. Krishnappa,
Aged about 64 years,
No.37, 5th Main,
5th Block, Jayanagar,
Bangalore - 560 041.
15. Sri. S. Nagaraj,
Son of B.M.Shamanna,
No.13, P.V.Nayak Line,
Tigalarapet,
Bangalore - 560 002.
5
16. Sri. C. Yethrappa,
Son of Chinnathayappa,
Darmadarshi,
Sri. Dharmaraya Swamy Temple,
Potter's Colony,
Kalasipalyam New Extension,
Bangalore - 560 002.
17. Sri. Chalakary Narayanswamy,
Son of N. Munivenkatappa,
No.6/1, P.C.Lane,
S.T.P.Road,
Bangalore - 560 002.
18. Sri. B.A. Krishnamurthy,
Son of Late M. Abayappa,
No.3, Muthamma Nilaya,
Papaiah Street,
Doddamavalli,
Bangalore - 560 004.
19. Sri. K. Mohan Kumar,
Son of Late C. Krishnappa,
No.16, 1st Cross,
Lalbagh Fort Road,
Mavalli,
Bangalore - 560 004.
20. Sri. A.G.P.Nataraja,
Son of Late A. Papanna,
No.119, 6th Main,
3rd Phase, J.P.Nagar,
Bangalore - 560 078.
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21. Sri. M. Ramakrishnappa,
President, Vanhikula Kshatriya
(Thigalara) Veerakumarara Sangha,
Son of Late M. Munichinappa,
No.35, CKC Garden,
2nd Cross,
Bangalore - 560 027.
22. Sri. S. Suresh Raju,
General Secretary,
Vanhikula Kshatriya (Thigalara)
Veerakumarara Sangha,
Son of Late P. Srinivasa,
No.15, A.P.Lane,
T. Anayappa Main Road,
Thigalarapet,
Bangalore - 560 002.
23. Sri. R. Girish Kumar,
Residing at No.14/1,
3rd Cross, K.G.Nagar,
Bangalore.
24. Sri. T.L. Badarinath,
Son of T.Lakshman Swamy,
No.7, A.M.Lane,
Thigalara Pet,
Bangalore - 560 002.
25. Sri. N. Srinivasa,
Son of Late M. Narayanaswamy,
No.2, P.M.Lane,
S.P.Road Cross,
Bangalore - 560 002.
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26. Sri. M. Narendra Babu,
Son of P. Muniyappa,
No.101/2, 14th Cross,
3rd Main, Margosa Road,
Near UCO Bank,
Malleswaram,
Bangalore - 560 003.
27. Sri. A. Narayanswamy,
Son of Late Anjinappa,
No.40, 3rd Cross,
Cubbonpet,
Bangalore - 560 002.
28. Sri. A.L. Lakshmayya,
Son of D. Abbayappa,
Residing at Dharmaraya Swamy Temple Road,
Hosakote.
29. Sri. G. Krishnappa,
Son of Gullappa,
Upparahalli,
Hosakote Taluk.
30. Sri. Rajanna,
Son of Nagappa,
Melina Pete,
Hosakote.
31. Sri. A. Devaraj,
Son of Andiyappa,
Residing at Melina Pete,
I.C.Circle,
Hoskote.
8
32. Sri. A. Jairam,
Son of Anjinappa,
Srinivasa Medicals,
Ramamurthynagara,
Bangalore - 560 016.
33. Sri. K. Girish,
Son of M. Krishnappa,
No.133, PTA Main Road,
Thigalara Pet,
Bangalore - 560 002.
34. Sri. Ramachandra .T,
Sri. Dharmaraya Swamy Temple
Main Road, Thigalara Pet,
Bangalore - 560 002.
35. Sri. B. Vinod Kumar,
No.17, 3rd Cross,
5th Main,
Sampangi Rama Nagar,
Bangalore - 560 027.
36. Sri. Girish Kumar,
No.14/1, 3rd Main Road,
K.G.Nagar,
Bangalore.
37. Sri. R. Balaraju,
No.37/1, 1st Main Road,
Sudamanagar,
Bangalore - 560 027.
[respondent nos. 16 to 37
are proposed respondents] ...RESPONDENTS
9
(By Shri. D.R.P.Babu, Advocate for Respondent Nos.1, 5, 6, 8 to
13
Respondent Nos. 2 to 4, 7, 14, are served and unrepresented
Appeal against respondent No.15 is abated vide order dated
28.1.2011
Shri. K.V.Narasimhan, Advocate for proposed respondent Nos. 16
to 37)
*****
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 06.11.2009 passed in O.S.No.36/1981 on the file of the VIII
Additional City Civil Judge, Bangalore, dismissing the suit for
declaration mandatory - injunction.
This appeal coming on for Final Hearing this day, the Court
made the following:
JUDGMENT
Heard the counsel for the appellants and the Counsel for the respondents.
2. The appellants were the plaintiffs before the trial court. Respondents 2 to 9 are said to be the erstwhile members of Defendant no.1, who have formed themselves into a trust by the 10 name and style of the Karnataka State Vanhikula Kshathriya (Thigalara) Hostel and Kalyana Mantapa. It is an admitted fact that defendant no.1, the respondent no.1 herein, namely, the Mysore State Vanhikula Kshathriya (Thigalara) Sangha, was a Society registered under the Mysore Societies Registration Act, 1904 (Hereinafter referred to as the 'MSR Act', for brevity), in the year 1924. The objects of the Society was to provide and promote educational facilities to the students of Vanhikula community and to construct a hostel for the students of that community. The plaintiffs claimed that along with other defendants, they were members of the said Society and a site in land bearing survey no.9/1 of Agrahara Thimmasandra, Kasaba Hobli, Bangalore Taluk, was purchased in the year 1931 and funds were collected for the purpose of construction of a students' hostel. In addition to the above, one Shri Ramaiah had donated land near Motor Industries Company Limited, Bangalore, for the purpose of construction of a hostel.
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It is not in dispute that defendant nos.2 to 9 had sold the said property for Rs.22,000/- and the same had been utilized for the construction of the suit schedule property. It is also not in dispute that the said defendants 2 to 9, after having formed the above said Trust, have been using the said premises for the purpose of conducting marriages and other religious functions of not only the Vanhikula community, but other communities as well, at a nominal charge. The plaintiffs had initially filed the suit claiming that there was mismanagement of the affairs of the Trust and the Trust property and for mandatory injunction directing defendants 2 to 9 to enroll new members to defendant no.1 and to call for a General Body Meeting and also to conduct elections for the Working Committee in the General Body Meeting as per the bye-laws.
That suit having been dismissed, an appeal had been filed before this court in RFA 305/1998. This court, by its judgment dated 13.8.2001 had allowed the appeal and set aside the judgment and decree of the court below dated 2.2.1998 and permitted the 12 plaintiffs to withdraw the Interlocutory application in I.A.No.4 filed by them under Section 92 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the 'CPC', for brevity) and permitted them to amend the plaint if they so chose to do. In other words, the plaintiffs had initially proceeded under the mistaken impression that defendant no.1 was indeed a Trust and not a Society and had pursued the remedy provided under Section 92 of the CPC, seeking the framing of a Scheme for the Trust. It was belatedly realised that defendant no.1 was a Society registered under the MSR Act and therefore, the application under Section 92 of the CPC was misplaced and hence, the relief granted by this court was taken to its logical conclusion in pursuing the present suit in its altered 'avatar', whereby the suit was sought to be initiated under Order I Rule 8 and under Order VII Rule 1 of the CPC. And it is thereafter that additional defendants had come on record, namely, 10 to 15.
Defendants 10 to 15 endorsed the claim of defendants 2 to
9. In any event, the court below had framed the following issues:- 13
"1. Whether the plaintiffs prove that the first defendant society is in existence after 1947?
2. Whether the plaintiffs prove that the contributions were collected from the members of the defendant society and others for the construction of the suit hostel and Kalyana Mantapa?
3. Whether the plaintiffs prove that license was granted to the first defendant or its member constructing the student hostel in the name of the first defendant in the suit schedule property?
4. Whether the plaintiffs prove that the second defendant and others sold the property near MICO Factory, Bengaluru for Rs.22,000/- and utilised the said amount for the construction of the kitchen block of the suit hostel and Kalyana Mantapa?
5. Whether the plaintiffs prove that the suit property belongs to the first defendant society?
6. Whether the plaintiffs prove that the then members and the office bearers of the first defendant society mis-utilised the funds of the society and illegally converted the first defendant society into a Trust?
7. Whether the plaintiffs prove that the defendants declared themselves as life Trustees of the said Trust?14
8. Whether the induction of the defendants 5 to 14 as additional Trustees during the pendency of the suit is legal and valid?
9. Whether the suit of the plaintiffs is bad in law for mis-joinder and non-joinder of parties?
10. Whether the Court fee paid is sufficient and proper?
11. Whether the defendants have prove that the first defendant society has become defunct after 1947 and whether the property of the first defendant were vested with the Registered Trust?
12. Whether the plaintiffs prove that the Trust Deed dated 15.12.78 is void and ineffective?
13. Whether the suit of the plaintiffs is not maintainable in the present firm either under Order- I, Rule-8 Code of Civil Procedure, 1908, or under Order-VII, Rule-1 of the Code of Civil Procedure, 1908?
14. Whether the plaintiffs are entitled to the declaration sought?
15. Whether the plaintiffs are entitled to the Mandatory Injunction sought?
16. What Order or Decree? "15
The court below has proceeded to hold that issues 1 to 12 do not require any finding and issue no.13 was held partly in the affirmative and issues 14 and 15 were held in the negative.
In considering issue no.13, the court below has concluded that it is to be found that defendant no.1 was a Society and if the plaintiffs were aggrieved by the acts of defendants 2 to 9 in having formed a Trust and having taken over the properties of the Society, it was at best a case for them to seek an inquiry under Section 25 of the Karnataka Societies Registration Act, 1960 (Hereinafter referred to as the 'KSR Act', for brevity) and has proceeded to dismiss the suit. It is that which is under challenge in the present appeal.
3. Shri Padubidri Mohan Rao would, on the face of it, point out that it is not in serious dispute that defendant no.1 was a Society. It was never dissolved in accordance with law and hence, the admitted circumstance that defendants 2 to 9 had formed a Trust and had taken over the assets of the Society is patently 16 illegal and hence, the court below has not at all addressed this admitted circumstance. Therefore, the observation that the plaintiffs should go before the Registrar and seek an inquiry is also without reference to Section 25 of the KSR Act, which empowers the Registrar, on his own motion, as also on the application of the majority of the members of the governing body or of not less than one-third of the members of the Society, to initiate an inquiry. In which event, it is not ensured that there would be an inquiry even if the appellants should approach the Registrar. Hence, the learned Counsel would submit that it is only the civil court, which would have to decide on this aspect of the matter insofar as the illegal acts committed by defendants 2 to 9 in usurping the assets of the Society and seeks appropriate reliefs.
4. While the learned Counsel for the respondents would submit that the findings of the trial court are justified. The admitted circumstance that the Society was constituted in the year 1920 and there has been no management worth its name over the 17 years and that the Society had become defunct, was not in serious dispute. It is in order to ensure that the original objects of the Society were met and that effective steps were taken, defendants 2 to 9, in their zeal, to protect the interests of their community, had formed the Trust and had invested monies, which they derived after selling the property, as already stated and have taken great pains in generating further funds and have constructed the suit property wherein only charitable activities are carried on for the larger benefit of the community, which they represent, apart from providing such charitable services to the society at large. Therefore, there is no illegality in the defendants having formed the Trust and even if there is any such illegality, which is sought to be alleged, as rightly held by the court below, it is only the Registrar, who would be in a position to hold an inquiry and to take any further steps. The civil court would have no jurisdiction to address the aspects relating to the constitution, working and the financial condition of a registered Society. The power to inquire into, is specifically conferred under a special legislation namely, 18 the KSR Act, under Section 25 and the consequence of any such mismanagement are also provided for under the succeeding sections and it is therefore incumbent on the plaintiffs to demonstrate the number of members of the Society and if they could muster the strength as required under the law, it is then open for them to seek an inquiry into the affairs of the Society, through the medium of the Registrar and hence, there is no scope for any such inquiry being conducted before the civil court and the trial court has rightly dismissed the suit while relying on several authorities including, decisions of this court, in this regard. And hence the learned Counsel seeks dismissal of the appeal.
Incidentally, an application has been filed by 22 individuals, who seek to participate in these proceedings claiming to be the members of defendant no.1 - Society and it is only in this appeal, that they have sought to enter appearance. The said application is also disposed of by this appeal.
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5. In the above facts and circumstances, there is no dispute that defendant no.1 - Society was constituted in the year 1920 and it was registered in the year 1924 before the Registrar. Once the Society is constituted, its affairs are regulated by the Act. In other words, if the Society has not been dissolved, the same will continue to be a registered Society and therefore, the defendants claiming that it was a defunct society and in the interest of the members of their community, they had formed a Trust and taken over the properties of the Society, is not by recourse to appropriate proceedings before the Registrar of Societies, who supervises the affairs of any Society registered under the KSR Act but privately, it would clearly be illegal and impermissible. Section 22 of the KSR Act provides for the dissolution of Societies and adjustment of their affairs. If it was the intention of defendants 2 to 9 to form a Trust in the interest of their community and to dissolve the Society, the procedure prescribed under Section 22 ought to have been followed. This has not been done. Therefore, the admitted circumstance that the property of 20 the Society was sold for a sum of Rs.22,000/- and that money was utilized by the Trust to acquire other properties, would be clearly unauthorized. Hence, the Society having been taken over by the Trust and dealing with its property would be in violation of the law. Therefore, it would have to be recorded by this court that the formation of the Trust and taking over of the assets of the Society cannot be countenanced. This finding would require further steps being taken. However, having regard to the scope of these proceedings, this court would stop-short of taking any further action apart from declaring that the admitted act of defendants 2 to 9 is clearly illegal and in violation of the Act. The consequence of this declaration would have to be carried forward by recourse to the provisions of the KSR Act. In other words, it is provided that the Registrar may on his own motion hold an inquiry. Hence, the Registrar could act on his own motion, provided he has the information to proceed against any Society. This judgment would be sufficient information and the source of information cannot be questioned. Hence, he is bound to act on it. 21 Therefore, the appellants are at liberty to place this judgment before the Registrar, who shall take further steps in accordance with law.
It is pointed out that this would firstly require the Registrar to ascertain whether there were any records at all, which are available with the office of the Registrar, relating to defendant no.1- Society and to ascertain the membership of the society at any given point of time and to take other steps to safeguard the property, which is now held by defendants 2 to 9, in the name of the said Trust and take other measures, in respect of which, the Registrar is provided ample powers. Insofar as the inquiry contemplated in initiating such action.
It is made clear that in view of the admitted facts in this case, this court has declared that the action of defendants 2 to 9 in forming the Trust and taking over the assets of the Society is illegal. To that extent, there would be no need for an inquiry by the Registrar. This aspect is made clear and it is for the Registrar 22 to take further steps in accordance with law and at his discretion, after issuance of notices to all concerned.
Insofar as the impleading applicants are concerned, it is open for them to participate in the proceedings before the Registrar and establish their case for membership, if any.
The appeal stands disposed of in terms as above and in variance with the impugned judgment.
Sd/-
JUDGE nv