Dismissed

Baselius Mar Thoma DIDYMUS-1 and Anor. v. the Manohar Hill Charitable Trust & Othe

Kerala HC13 Mar 2023RFA/661/2010

Case brief

AI extract

What is this about?

This appeal challenged the trial court's dismissal of a suit for framing a scheme for a public trust, asserting jurisdiction under Section 92 CPC. The High Court dismissed the appeal, affirming the dismissal but leaving parties at liberty to pursue Section 92 CPC remedies. It also dismissed an ancillary loan application via counsel undertaking.

What did the court decide?

Oral undertaking by respondent counsel recorded; application for loan dismissed as not pressed; appeal dismissed.

Baselius Mar Thoma DIDYMUS-1 and Anor. Vs the Manohar Hill… — Property and Title | Kerala HC (2023)

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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 P.SOMARAJAN

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MONDAY, THE 13^th DAY OF MARCH 2023 / 22ND PHALGUNA, 1944

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RFA NO. 661 OF 2010 (J)

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AGAINST THE JUDGMENT IN OS No.358/2009 OF PRINCIPAL SUB COURT, KOTTAYAM, DATED 08.09.2010 AND 29.09.2010 (AMENDED AS PER ORDER DATED 06.12.2010 IN IA.4354/10)

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APPELLANTS/PLAINTIFFS 1 & 2:

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1 BASELIUS MAR THOMA DIDYMUS-1, S/o LATE ITTY AVIRAH, AGED 88, CATHOLICOS AND MALANKARA METROPOLITAN, MALANKARA ORTHODOX SYRIAN CHURCH, DEVALOKAM ARAMANA, MUTTAMBALAM VILLAGE, REPRESENTED BY POWER OF ATTORNEY H.G.THOMAS, MAR ATHANASIOUS METROPOLITAN, AGED 71, BETHEL ARAMANA, CHENGANNUR DIOCESE, CHENGANNUR.

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2 FR.JOHN KONATTU, AGED 55 YEARS, S/o LATE Fr.ABRAHAM KONATTU - PRIEST TRUSTEE, MALANKARA ORTHODOX SYRIAN CHURCH, DEVALOKAM ARAMANA, MUTTAMBALAM VILLAGE.

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(APPELLANTS 1 AND 2 ARE SUBSTITUTED AS PER ORDER DATED 13.03.2023 IN IA 2/22)

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APPELLANTS/PLAINTIFFS 1 & 2:

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1 H.H. BASELIUS MARTHOMA MATHEWS-III, CATHOLICOS CUM MALANKARA METROPOLITAN, MALANKARA ORTHODOX SYRIAN CHURCH, DEVALOKAM, KOTTAYAM – 686 004

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2 FR.SAJI VARGHESE AMAYIL, S/o VARGHESE, AGED 47 YEARS, PRIESTLY TRUSTEE, MALANKARA ORTHODOX SYRIAN CHURCH, RESIDING AT ANSAYIL ABEES COTTAGE, KEECHERIMEL, ALAPPUZHA DISTRICT – 689 121

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(THE ABOVE PERSONS ARE SUBSTITUTED AS APPELLANTS 1 AND 2 IN RFA 661/2010 AS PER ORDER DATED 13.03.2023 IN IA 2/2022 IN RFA 661/2010)

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BY ADVS. SRI.S.SREEKUMAR P.MARTIN JOSE SRI.P.G.JACOB THOMAS P.KURUVILLA P.PRIJITH

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RFA No.661 of 2010

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RESPONDENTS/DEFENDANTS 1, 2, 4 & 6:

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1 THE MANOHAR HILL CHARITABLE TRUST REPRESENTED BY ITS MANAGING TRUSTEE VARGHESE PAUL, S/o LATE P.GEEVARGHESE, AGED ABOUT 58 YEARS, MANOHAR HILL HOUSE, ERAYILKADAVU, KOTTAYAM, PIN-686001. 2 VARGHESE PAUL, S/o LATE P.GEEVARGHESE, AGED ABOUT 58 YEARS, MANOHAR HILL HOUSE, ERAYILKADAVU, KOTTAYAM, PIN – 686 001 3 SREENIVASAN, AGED ABOUT 45 YEARS, S/o LATE L.RANGAMANI, CHARTERED ACCOUNTANT, ROSE GARDEN, ALLEPPEY, PIN – 688 001. 4 MATHEW VARGHESE, AGED ABOUT 66 YEARS, C/o VARGHESE PAUL, S/o LATE P.GEEVARGHESE, AGED ABOUT 58 YEARS, MANOHAR HILL HOUSE, ERAYILKADAVU, KOTTAYAM, PIN – 686 001.

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BY ADVS. PHILIP T.VARGHESE THOMAS T.VARGHESE ACHU SUBHA ABRAHAM V.T.LITHA K.R.MONISHA ALEX THOMAS ARJUN RAJA P.C. SREENATH VIJAYARAGHAVAN B.G.HARINDRANATH AMITH KRISHNAN H. M.GOPIKRISHNAN

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.661 of 2010

JUDGMENT

A suit instituted for settling a Scheme for the

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administration of Trust covered by Ext.A1 document and

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for other reliefs was dismissed by the trial court based

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on the objection raised that it will not come under Section 92 C.P.C. The objection raised was upheld by the

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trial court under a preliminary issue, against which F.A.O.No. 235/2009 was filed before this Court, wherein an order of remand was passed, hence the matter again came up before the trial court. The trial court then

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again considered the issue afresh and found that the matter would come under the purview of Section 92 C.P.C.

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since there is a public Trust created under Ext.A1

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document and the suit was accordingly dismissed, against which the plaintiffs came up in appeal.

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I.A.No.1/2022 is by the first respondent seeking

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permission to take a loan by pledging the properties of the Trust.

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The Trust was created with various objects. The first object is to take over the land at Nedumkunnam

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RFA No.661 of 2010 4

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proposed to be purchased in the name of Trust. It is

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self explanatory with respect to the nature of Trust.

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The second object is to obtain contribution from the

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general public to augment the Trust with sufficient funds. The third one is to utilize the funds for

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establishment of hospital and to render medical aid and fourth one is to give proper medication and aid to disabled persons without any distinction as to caste or creed. The object would clearly show that it is a public Trust intended for public charity created for the benefit of general public especially the disabled persons without any distinction as to caste or creed. The provision for collecting funds from public would also support its nature as a public Trust. Hence, the matter would squarely come under the purview of Section 92 C.P.C. and

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a Scheme can be framed only by exhausting that provision. But by its nature, it is clear that certain named persons themselves constituted a Trust under the guise of doing

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and extending medical facility to the needy especially to

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the disabled persons irrespective of caste or creed. But the first three objects mentioned in Ext.A1 would show that it was constituted primarily for acquiring immovable

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RFA No.661 of 2010 5

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property at Nedumkunnam and to establish a hospital

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therein by taking public contribution. Hence, the present

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suit will not stand and there is no reason for

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interfering with the dismissal of suit by the trial court

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due to want of jurisdiction. It is made clear that the

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parties are at liberty to exhaust the remedy under Section 92 C.P.C.

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In so far as I.A.No.1/2022 is concerned, during

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the course of argument, the learned counsel pressed for a

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dismissal of the application as not pressed. But the learned counsel for the appellants/plaintiffs submitted

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that there is every chance to pledge or mortgage the

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assets of the Trust without obtaining a proper Scheme for

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its administration. It is true that pledging of

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property/assets of the public charity for the purpose of

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availing loan would come under the purview of “administration” of Trust and in the absence of a proper scheme to administer the same, no such sanction can be

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granted, that too, in a suit of this nature. At this

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juncture, the learned counsel who appeared for the

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respondents/defendants Sri.B.G.Harindranath made an oral undertaking that no such loan facility will be availed of

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RFA No.661 of 2010 6

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without settling a Scheme for the administration of the Trust. Hence, the oral undertaking made by the counsel is hereby recorded with all its legal consequences. I.A.No.1/2022 will stand dismissed as not pressed.

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The appeal will stand dismissed without prejudice to

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the right of parties to agitate the issue under Section 92 C.P.C. No order as to costs.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

The following sentences in paragraph 4 of the

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judgment dated 13.03.2023 are deleted as per order dated 13/04/2023 in I.A 2/2023 in RFA 661/2010.

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“At this juncture, the learned counsel who

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appeared for the respondents/defendants Sri.B.G.Harindranath made an oral undertaking that no such loan facility will be availed of without settling a Scheme for the administration of the Trust. Hence, the oral undertaking made by the counsel is hereby recorded with all its legal consequences.”

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Sd/-

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JOINT REGISTRAR

Baselius Mar Thoma DIDYMUS-1 and Anor. v. the Manohar Hill Charitable Trust & Othe

Case brief

What is this about?

What did the court decide?

Baselius Mar Thoma DIDYMUS-1 and Anor. v. the Manohar Hill Charitable Trust & Othe

Case brief

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What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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