Allowed

Valia Koonambaikulam Sree Bhadrakali Temple v. Rajendran

Kerala HC23 Feb 2018OP(C)/2133/2017

Case brief

AI extract

What is this about?

This order allows an original petition challenging the grant of leave under Section 92 CPC to institute a suit regarding the administration of a public religious trust in Kerala. The court held that the plaint lacked specific averments establishing the plaintiffs' interest in the trust, rendering the leave legally unsustainable.

What did the court decide?

The original petition was allowed and the order dated 15.12.2016 granted leave under Section 92 of the Code was quashed.

Valia Koonambaikulam Sree Bhadrakali Temple Vs… — Civil Procedure and Limitation | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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FRIDAY, THE 23RD DAY OF FEBRUARY 2018 / 4TH PHALGUNA, 1939

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OP(C).No. 2133 of 2017

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AGAINST THE ORDER DATED 13-06-2017 IN OP NO.285/2010 of III ADDITIONAL DISTRICT COURT, KOLLAM

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PETITIONERS/RESPONDENTS:

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1 VALIA KOONAMBAIKULAM SREE BHADRAKALI TEMPLE VADAKKEVILA, VADAKKEVILA VILLAGE, KOLLAM 691 010.

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2 VALIA KOONAMBAIKULAM SREE BHADRAKALI TEMPLE TRUST, REGISTERED U/INDIAN TRUST ACT BY DEED NO 5751/2003 VADAKKEVILA, VADAKKEVILA VILLAGE, KOLLAM REPRESENTED BY ITS VICE PRESIDENT. (ACTING)

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3 VALIA KOONAMBAIKULAM SREE BHADRAKALI TEMPLE TRUST REGISTERED U/TRAVANCORE-COCHIN LITERACY SCIENTIFIC AND CHARITABLE SOCIETIES REGISTRATION ACT,Q 208/2008 VADAKKEVILA, VADAKKEVILA VILLAGE, KOLLAM, REPRESENTED BY ITS VICE PRESIDENT. (ACTING)

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4 P. BAIJU

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S/O.PAVITHRAN, AGED 50 TEARS, RESIDING AT PAYATTUVILAVEEDU, MANACADU CHERRY, VADAKKEVILA VILLAGE.

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5 CHANDRASHEKARAN

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S/O.DAMODARAN, AGED 75 YEARS, MADATHIVILA VEEDU, PUNTHALATHAZHAM CHERRY, VADAKKEVILA VILLAGE, KOLLAM.

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BY ADVS.SRI.K.V.SADANANDA PRABHU

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SRI.SERGI JOSEPH THOMAS

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RESPONDENTS/RESPONDENTS 7 & 8 AND PETITIONERS:

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RAJENDRAN

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S/O. PURUSHAN, AGED 52 YEARS, GEETHABHAVAN, NALANDA NAGAR-109,AYATHIL CHERRY, AYATHIL P.O,

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KOLLAM 691 001

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SOMARAJAN

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S/O.KRISHNAN KUTTY, AGED 59 YEARS, RESIDING AT VAYALIVEEDU, MANAKAD, VADAKKEVILA P.O, KOLLAM 691 011

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ANIMON, S/O.MOHANAN, AGED 35 YEARS, KALEELILTHEKKETHIL, MANAKKAD, VADAKKEVILA P.O., KOLLAM-69107

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O.P.(C) NO.2133 OF 2017

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VALIA KOONAMBAIKULAM SREE BHADRAKALI KSHETRA SAMRAKSHANA SAMITHI, Q 339/08,VADAKKEVILA P.O, REPRESENTED BY ITS PRESIDENT. 691 017

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SREE NARAYANA DHARMA PARIPALANA SAKHAYOGAM, MANAKKAD,NO. 5126,VADAKKEVILA, KOLLAM REPRESENTED BY ITS SECRETARY. 691 017

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R1 TO R3 BY ADVS. SRI.B.SURESH KUMAR SMT.ANUROOPA JAYADEVAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-02-2018,THE COURT ON 23-02-2018 DELIVERED THE FOLLOWING:

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OP(C).No. 2133 of 2017 (O)

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APPENDIX

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PETITIONERS' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S NO 1/2017 ON THE FILES OF THE COURT OF THE DISTRICT JUDGE, KOLLAM

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EXHIBIT P2 TRUE COPY OF THE ORDER DATED 13/07/2017 IN O.P NO 285/2010 OF THE III ADDL. DISTRICT JUDGE, KOLLAM

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RESPONDENTS' EXHIBITS:

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EXT.R1(a) A TRUE COPY OF THE PETITION FOR LEAVE DATED 23/11/2010 FILED BY THE RESPONDENTS 1 TO 3 BEFORE THE DISTRICT COURT, KOLLAM

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EXT.R1(b) A TRUE COPY OF THE ORDER DATED 4.3.2011 IN OP NO.285/2010 PASSED BY THE LEARNED DISTRICT JUDGE

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EXT.R1(c)A TRUE COPY OF THE JUDGMENT IN CRP NO.168/2011 DATED 19.01.2015 PASSED BY THE HON'BLE HIGH COURT OF KERALA

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EXT.R1(d) A TRUE COPY OF THE ORDER IN SLP (CIVIL) CC NO.21399/2015 DATED 11/12/2015 PASSED BY THE HON'BLE SUPREME COURT OF INDIA

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EXT.R1(e) A TRUE COPY OF THE ORDER DATED 15.12.2016 IN OP NO.285/2010 PASSED BY THE LEARNED DISTRICT JUDGE

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EXT.R1(f) A TRUE COPY OF THE ORDER DATED 15.12.2016 IN OP NO.285/2010 PASSED BY THE LEARNED DISTRICT JUDGE

//TRUE COPY//

“C.R.”

A.HARIPRASAD, J.

O.P.(C) No.2133 of 2017

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Dated this the 23^rd day of February, 2018

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JUDGMENT

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Ext.P1 suit, instituted under Section 92 of the Code of Civil Procedure, 1908 (in short, “the Code”), has had a varied past as it is coming up for the third time before this Court since its institution in 2010. All the times, sanction of leave, under Section 92 of the Code, was under challenge for one reason or the other. This time the petitioners (defendants in the suit) have come up with this original petition, alleging that the respondents (plaintiffs in the suit) have not disclosed their interest in the trust nowhere in Ext.P1 plaint and a few sentences occurring here and there do not even remotely suggest the existence of any interest the plaintiffs said to have in the religious trust. It is therefore contended that one of the essential ingredients of Section 92 of the Code is missing in Ext.P1 and for the same reason sanction of leave as per Ext.P2 order by the Additional District Judge is legally unsustainable.

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Heard the learned counsel for the petitioners and the respondents.

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The suit is in respect of administration of Valiya

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O.P.(C) No.2133 of 2017

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Koonambaikulam Sree Bhadrakali Temple trust (1^st defendant). In paragraph 5 of Ext.P1 plaint, it is mentioned that the status of the 1^st defendant is that of a constructive trust. Averments in Ext.P1 elsewhere will show that it is an express religious trust dedicated to the public, especially to all faithful, including the plaintiffs. Specific instances of mismanagement by the defendants are mentioned in Ext.P1. The petitioners (defendants) have not delivered their defence so far.

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The trial court granted leave under Section 92 of the Code to institute the suit vide order dated 04.03.2011. The grant of leave was challenged before this Court and the order passed by the original court was set aside on 19.01.2015 vide order in C.R.P.No.210 of 2012. It appears that the aggrieved party had taken up the matter in S.L.P.No.34961 of 2015 before the Supreme Court. The Supreme Court directed the trial court to consider the matter afresh. Again, on 15.12.2016 the Additional District Judge granted leave under Section 92 of the Code. Once again it was challenged before this Court in O.P.(C) No.747 of 2017 and a learned Single Judge, vide judgment dated 12.04.2017, set aside the order passed by the trial court and remanded the case for a fresh determination with reference to the averments in the plaint. Subsequently the impugned order was passed.

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Learned counsel for the petitioners contended that in spite of repeated directions, the court below failed to consider the averments in

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O.P.(C) No.2133 of 2017

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Ext.P1 plaint before granting leave. It will be apposite to refer to the relevant part of Section 92 of the Code for appreciating the point in controversy. I shall extract the same:

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“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, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree-

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(a) removing any trustee;

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(b) appointing a new trustee;

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(c) vesting any property in a trustee;

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(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

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(d) directing accounts and inquiries;

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(e) declaring what proportion of the trust-property or

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O.P.(C) No.2133 of 2017

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of the interest therein shall be allocated to any particular object of the trust.

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(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

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(g) settling a scheme; or

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(h) granting such further or other relief as the nature of the case may require.

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xxxxxxx”

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Learned counsel for the petitioners referred to various paragraphs in Ext.P1 plaint to contend that nowhere the plaintiffs/respondents have pleaded that they have any specific interest in the religious trust. According to him, averments in Ext.P1 plaint can be seen to the effect that there are thousands of people in the locality, who are beneficiaries of the 1^st defendant trust and the plaintiffs are also beneficiaries of the 1^st defendant trust. But, what is their beneficial interest is not mentioned in specific terms, which according to him is a pre-requisite to maintain an action under Section 92 of the Code.

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On an analysis of Section 92(1) of the Code, it can be seen that following essential ingredients are to be satisfied for maintaining an action:

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I. The dispute must be in respect of an express or constructive trust created for public purpose of a charitable or religious nature.

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O.P.(C) No.2133 of 2017

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II. There should be an allegation of any breach of express or constructive trust.

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III. Direction of the court is deemed necessary for administration of any such trust.

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IV. Advocate General may institute the suit.

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V. The plaintiffs in such a suit must be two or more persons having an interest in the trust.

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VI. They should obtain leave of the court before instituting the suit.

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VII. Institution of the suit should be before principal civil court of original jurisdiction or any other court empowered in this behalf by the State Government.

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VIII. The reliefs claimed in the suit must fall within Clauses (a) to (h) in Section 92(1) of the Code.

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It will be clear from the Section that two or more persons having an interest in the trust and having obtained leave from the court may institute the suit. It goes without saying that what is the interest of the plaintiffs in the express or constructive trust, created for a public charitable or religious nature, should be explicitly mentioned. Specificity in mentioning the interest of the plaintiffs is to be insisted upon to see that vexatious litigations are not brought before the court to harass the trustees or to cause problems in the administration of a trust.

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O.P.(C) No.2133 of 2017

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As observed by the Supreme Court in Vidyodaya Trust v. Mohan Prasad R. ((2008) 4 SCC 115) if the persons in management of the trusts are subjected to multiplicity of legal proceedings, funds which are to be used for charitable or religious purposes would be wasted on litigation. Further, harassment might dissuade respectable and honest people from becoming trustees of public trusts. Therefore leave under Section 92 of the Code should be granted with circumspection.

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Learned counsel for the contesting respondents contended that in spite of making elaborate averments in Ext.P1 plaint, the petitioners are trying to scuttle proper administration of the religious trust, drawing huge income, by raising untenable contentions. It is also his contention that the persons in administration of the trust are diverting the income for other purposes, unconnected with the founding object of the trust. True, such considerations should weigh with the trial court, if it finds that the averments in the plaint legally justify grant of leave under Section 92 of the Code.

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Learned counsel for the petitioners argued that on a reading of Ext.P1 plaint in its entirety, one will not find what is the specific interest of the plaintiffs in respect of the religious trust. Except espousing the cause of the local people, the plaintiffs have not divulged their interest in the trust. On a reading of Ext.P1 plaint, it can be seen that some principles

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O.P.(C) No.2133 of 2017

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exclusively applicable to private trusts, governed by the Indian Trusts Act, 1882, have been sought to be invoked in the case of a public religious trust. Apart from the above, nowhere in the plaint I could find the plaintiffs revealing their interest in the religious trust.

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Learned counsel for the petitioners cited some decisions to urge a proposition that in the absence of establishing an interest for the plaintiffs, in one form or the other, in a public charity, a suit under Section 92 of the Code is not maintainable.

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T.R.Ramachandra Iyer and another v. Ponniath Akathuthu

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Parameswaram Munbu and others ((1919) ILR 42 Madras 360) is a decision cited to put forward a proposition that a chance worshipper or an occasional worshipper cannot be said to have an interest in the affairs of a religious trust, entitling him to file a suit under Section 92 of the Code. The case came up before a Full Bench of the Madras High Court on a reference. In the course of discussion, it was held that proof of residence in the neighbourhood of the institution will no doubt be one way of establishing possession of an interest, not by any analogy with the rights of parishioners in England, but on the simpler ground that those who live near to the institution will be most likely to take advantage of its benefits. In that case, a lawyer, who was practising before the Madras High Court and resident of Madras, attempted to file a suit under Section 92 of the Code to

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O.P.(C) No.2133 of 2017 8

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set right some perceived flaws in the administration of a temple at Tellicherry on the ground that he had a right to worship in the temple. In that context, the Full Bench of the Madras High Court by its majority held that a chance worshipper cannot have an interest in the religious trust.

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Another decision relied on by the learned counsel for the petitioners is A.V.M.Ramaswami v. V.M.Muthukaruppan (AIR 1925 Madras 1011) . In the facts and circumstances of the case, a Bench of the Madras High Court held that those who have contributed to the funds of the trust can be said to have an interest in the administration of trust.

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Narasimha Suryanarayana v. Achuthana

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Lakshminarasimham and others (AIR 1926 Madras 267) is a decision wherein it is held that although any Hindu has a right to worship in any Hindu temple, it does not necessarily follow that every Hindu has, in relation to every Hindu temple, an interest which gives him a right to sue under Section 92 of the Code.

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In Ramaswami Chettiar v. Karumuthu Sivalingam Chettiar

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(AIR 1957 Madras 597) it was held that the plaintiffs, who were residing only three miles away from the temple and who had saved the trust properties from being sold away by a decree holder and that they got the attachment released, were having an interest and therefore entitled to lay a suit under Section 92 of the Code. It was held in Sahdeo Das v. Raja Ram

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O.P.(C) No.2133 of 2017

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and others (AIR 1932 Allahabad 708) that the plaintiffs who had been worshipping in a temple and making offerings and giving subscriptions should be presumed to be interested in the religious trust.

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Question posed for determination in Ratan Sen v. Suraj Bhan (AIR 1944 Allahabad 1) is whether Aryasamajists have a right to institute a suit under Section 92 of the Code in respect of a Hindu temple as they had no belief in idol worship. Allahabad High Court, considering the fact that the plaintiffs were zamindars in the village in which the property was lying and that they were the son and grandson of the man who gave up the property to consecrate the temple and dharmashala, held that they were entitled to institute a suit under the above provision.

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It was conceded on behalf of the petitioners that the above illustrations are not exhaustive. According to the learned counsel, those are instances wherein the plaintiffs could establish, by the averments in the plaint, that they have a specific interest in the trust. Plaintiffs in the present case have not shown any reason to infer that they have an interest in the trust, either similar to those in the above decisions or some other right justifying a grant of leave. It is therefore contended that merely by saying that they have some beneficial interest, leave under Section 92 of the Code could not have been granted.

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It is all the more so for the reason that unless the plaintiffs

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O.P.(C) No.2133 of 2017

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show a specific interest in the trust, the defendants (petitioners) will not be able to challenge it as a question of fact. Fundamental rule of pleadings is that all relevant facts must be concisely stated in the plaint so that the opposite party will get an opportunity to controvert the same, if he so chooses. Interest in the trust is an essential ingredient of Section 92 of the Code to enable the plaintiffs to institute a suit. In the absence of pleading a specific interest in the plaint, opposite party will be taken by surprise at the trial and such a situation should not be allowed to happen.

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Learned counsel for the petitioners relied on the decision in

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Trojan & Co. v. Nagappa (AIR 1953 SC 235) to contend that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. A well settled principle is reiterated in St.Mary's Church and another v. Saju and another (ILR 2001 (2) Kerala 219) that for granting leave under Section 92 of the Code, the court has to satisfy prima facie from the allegations made in the plaint. Equally settled is the proposition that the court need to satisfy only prima facie, on the allegations made in the plaint, if leave is to be granted or not. In the absence of any averment in Ext.P1 plaint regarding any specific interest of the plaintiffs in the religious trust, the court below committed a serious error in understanding scope of the remand order. It has been clearly mentioned in Ext.R1(f) judgment in O.P.(C) No.747 of 2017 that the

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O.P.(C) No.2133 of 2017

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plaint allegations should be referred to for considering whether leave should be granted or not.

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To encapsulate the points, it can be stated that in order to institute a suit under Section 92 of the Code, the plaintiffs must aver in the plaint all the ingredients of the Section as shown above and also in clear terms their interest in the public charity. General words or expressions that they are interested, without specifying the nature of their interest, will not enable them to institute such a suit. Obvious reason is that the opposite party should get an opportunity to deny the interest claimed by the plaintiffs in respect of the trust as it is a factual question. A public trust – whether religious or charitable – can have multifarious objects. For example, a public temple, as in this case, is a religious trust. Such a trust is intended to provide spiritual and temporal benefits to the public. Those who worship the deity as an ardent devotee may seek salvation, that is purely a spiritual benefit. Some others may worship in the temple for mundane benefits. Yet another section of public may be interested in the charitable activities like poor feeding, free medical aid, upkeep of orphanages or retirement homes (old people's home). So, it is incumbent on the plaintiffs in such suits to clearly mention in the pleadings their interest in the trust as a material fact. The averments in the plaint are the relevant indicators for grant of leave. As above, the plaintiffs interest can be temporal or spiritual, depending on the nature of the public trust. Keeping in mind the principle that Section 92

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O.P.(C) No.2133 of 2017

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of the Code provides a safeguard to prevent vexatious litigations against public charities, the courts must be careful in handling such issues. I am of the view that the court below thoroughly failed to appreciate the well laid principles in law before granting leave in this case.

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On going through Ext.P1 plaint, I find no specific averment regarding the interest of the plaintiffs empowering them to institute a suit under Section 92 of the Code, which is sine qua non for institution of the suit.

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In the result, the original petition is allowed. Ext.P2 order is

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quashed.

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All pending interlocutory applications will stand closed.

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A. HARIPRASAD, JUDGE.

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cks

Valia Koonambaikulam Sree Bhadrakali Temple v. Rajendran

Case brief

What is this about?

What did the court decide?

Valia Koonambaikulam Sree Bhadrakali Temple v. Rajendran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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