FAO 150/2014, S.E. Krishnan Namboodiri and others v Rajeev Memorial Health and Educational Society and others

1 FAO 150/2014 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945 ``` ## **`FAO NO. 150 OF 2014`** ``` AGAINST THE ORDER DATED 23.3.2013 IN OP 2/2011 OF SUB COURT, ``` ## **`PAYYANNUR`** ## **`APPELLANTS/PETITIONERS/PLAINTIFFS:`** - `1 S E KRISHNAN NAMBOODIRI, AGED 55 YEARS S/O.LATE NARAYANAN NAMBOODIRI, SANKARA MANGALAM ELLAM, PROPRIETOR MAECON MOTO PUMP SETS, RESIDING NEAR PILATHARA, CHERUTHAZHAM VILLAGE, KANNUR TALUK, KANNUR DISTRICT, VILAYANCODE P.O. 670 501.` - `2 P.V. GOVINDAN MASTER, AGED 79 YEARS S/O.SRI.KAMMARA KURUP, PENSIONER, CHERUTHAZHAM VILLAGE, KANNUR TALUK, KANNUR DISTRICT, EZHILODE PO 670 309` - `3 C. SAHADEVAN, AGED 78 YEARS S/O.SRI.KUNHIRAMAN, 'SAROSH', VILAYANCODE P.O. (VIA MANUR), KANNUR TALUK, KANNUR DISTRICT, PIN.670 501 BY ADV SRI.V.N.RAMESAN NAMBISAN` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** - `1 RAJEEV MEMORIAL HEALTH AND EDUCATIONAL SOCIETY, PILATHARA, (561/1991) PILATHARA, CHERUTHAZHAM AMSOM, KANNUR TALUK, PILATHARA, KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT, PIN.670 501.` - `2 THE PRESIDENT, RAJEEV MEMORIAL HEALTH AND EDUCATIONAL SOCIETY(561/1991) PILATHARA, CHERUTHAZHAM AMSOM, KANNUR TALUK, KANNUR DISTRICT, PILATHARA, 670 501.'` - `3 THE GENERAL SECRETARY, R.M.H & E.SOCIETY, (561/1991) PILATHARA, CHERUTHAZHAM AMSOM, KANNUR TALUK, PILATHARA, KANNUR DISTRICT - 670 501.` - `4 ABDUL NAZAR, THAAL BUSINESS, MANIKOTH PO, KASARAGOD DISTRICT PIN.671 121.` 2 FAO 150/2014 ``` 5 K. THAMBAN NAMBIAR,S/O.CHANDU NAMBIAR, AGED 64 YEARS, CHERUTHAZHOM AMSOM, KANNUR TALUK, PILATHARA, KANNUR DISTRICT - 670 501. 6 MANOHARAN P.V. KELOTH KANNAN AGED 47 YEARS BUSINESS, PULIKOTAN HOUSE, KANNUR TALUK, PILATHARA P O, KANNUR DISTRICT - 670 501. 7 SAJEEVAN K. AGED 46 YEARS BUSINESS, CHERUTHAZHAM AMSOM, KANNUR TALUK, PILATHARA P O, KANNUR DISTRICT - 670 501. 8 N.V. KRISHNAN AGED 56 YEARS S/O.P.R.GOVINDAN NAMBIAR, BUSINESS, VIDYA NAGAR KANNUR TALUK, PILATHARA PO, KANNUR DISTRICT - 670 501. BY ADVS. SRI.T.K.VIPINDAS – R1 to R3 SRI.GRASHIOUS KURIAKOSE (SR.)- } R4 SRI.GEORGE MATHEWS } ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 FAO 150/2014 ## **JUDGMENT** (Dated this the 4[th] day of October 2023) The appellants are the petitioners in O.P.No. 2 of 2011 on the files of the Subordinate Judge’s Court, Payyannur and the respondents are the defendants therein. O.P.No.2 of 2011 was filed under section 92 of the Code CPC for granting permission to institute the suit. 2. The case of the petitioners is as follows: Some prominent persons in Cheruthazham formed a charitable trust committee to establish educational institutions, high schools, colleges, training schools and hospitals for the welfare of the citizens. It also had an aim of cultural and occupational activities. The trust committee formed was registered under the Societies Registration Act, 1860 with the Registrar, in the name and style as Rajeev Memorial Health and Educational Society. Amounts were collected by way of 4 FAO 150/2014 membership fees and donation from public, teaching and non teaching staff. 3. After the registration of the society, a copy of the byelaw was not given to the plaintiffs, and they were kept in dark regarding the general body meeting. The plaintiffs obtained a copy of the bylaw and on perusal, it was found that the executive committee is the supreme authority of the society. Valuable immovable property measuring one hectare, 10 Ares and 931 Sq.mtr with a high school in R.S No.197/1A of Cheruthazham village of the first respondent Trust has been made over to the 4[th] respondent for a paltry sum of Rs.57,00,000/-. There was no need to alienate the property; the consideration shown is very low, and the general body has not confirmed the sale. Therefore, the suit was filed challenging the deed executed in favour of the 4[th] respondent and sought permission under section 92 of CPC. 4. Respondent Nos.1 to 3 filed an objection contending 5 FAO 150/2014 that the 1[st] respondent is not a trust and is registered under the Societies Registration Act 1960, so Section 92 CPC has no application. The general public has no right, authority, or interest over the 1[st] respondent society. The collection of huge amounts as membership fees from the public and staff, were denied. The society purchased the property by raising funds from members and private persons. Since the society was in financial stringency, a decision was taken to entrust the schools management to a provincial administrative committee. On 5.9.2010, the General Body accepted the decision of the executive committee to sell the property. At this juncture, some persons filed O.S.No.45 of 2011 and obtained an injunction against the 1[st] respondent. The injunction was later vacated. Therefore, prayed that the petition be dismissed as not maintainable. 5. The 4[th] respondent filed a separate objection and 6 FAO 150/2014 contended that the 1[st] respondent is not a charitable trust, so the petition under Section 92 CPC is not maintainable. There is no averment in the plaint or in the petition regarding the creation of a trust; therefore, the petition filed under Section 92 CPC is not maintainable and prayed for the dismissal of the petition. 6. The learned Sub Judge raised a point for consideration as to whether leave should be granted under section 92 CPC. The learned Sub Judge relied on the decision reported in **Amrithakumari v. Ramananthan [1998(2) KLT 305]** and **Abhaya v. Reheem [2005 (3) KLT 891]** , in which it was held by this court that members of the public collecting money and establishing a school and thereafter registering it under the Societies Registration Act does not change the character of the property. It was a case in which some prominent persons of Perinjanam who wanted to do education and social work formed themselves as sponsors for registering a committee under the Societies Registration Act XXI of 1860 7 FAO 150/2014 and applied for registration of society for doing charitable work. On the death of the founder President, a committee was held, and in the said Committee, one Sreenivasan was in the presidential chair, who was the son of President, V. K. Maman Chohan. The said Sreenivasan, along with his wife and mother, executed a trust deed of Trust in 1958 as number 386 of 1958 giving properties mentioned therein as endowments for the proper maintenance and upkeep of the school. The income from the trust properties was mainly used for the proper care of the school and to maintain the yearly festivals of the temple. The school was managed by a committee constituted by the Societies Registration Act. It was contended that since a society manages the school, it cannot be said that it is a trust property, and proceedings can be taken as per the provision of the Society Registration Act. This court held that after going through the averments, a definite conclusion can be arrived that a trust was created and then it was registered under Societies 8 FAO 150/2014 Registration Act. Therefore, it was held that if a trust is created by a public for a public charitable trust, the mere fact that registration of a society could not change the character of the property. 7. The learned Sub Judge mainly relied on the dictum laid down by this court in **Abhay** a (supra) and analysed the facts of the case, and found that the appellant has no case that prior to the formation of the society, there was a trust created by the prominent members of the locality for the formation of the school. So, there was no trust or committee before registering the 1[st] respondent society. Any subsequent acquisition of property would not change the character of the body registered as a society under the Societies Registration Act. 8. The counsel for the appellants, Sri Ramesan Nambisan relied on the judgment of a full bench of this court in **Kesava Panicker v. Damodara Panicker and others [1975** 9 FAO 150/2014 **KHC 125]** , and contended that merely because the trust which was formed earlier has been subsequently under the Societies Registration Act, the same will not change the character and properties of the already constituted Trust property. He juxtaposed the said decision to the facts of the case and argued that in this case, there is pleading to the effect that there is a trust committee which was formed with the object of establishing schools and colleges and the welfare of the citizens and thereafter it was registered under the Societies Registration Act. He further contended that 3 points for invoking Section 92 they are (i) Creation of Trust , (ii) breach of trust, and (iii) reliefs sought to, come under Section 92 CPC. He has argued that a plain reading of the plaint and the petition would show that a Trust committee was formed before the registration of the society. This point has not been considered by the learned SubJudge when the petition was being heard. 10 FAO 150/2014 9. The learned senior counsel appearing for the 4[th] respondent submitted that though the word ‘Trust’ has been stated in some parts of the plaint, that will not show that a trust has been created much before the society’s registration. The pleading would show that funds and membership were collected after registration of the Society, and therefore, even according to the pleading of the appellants, it cannot be said that there was a Trust. The learned Sub Judge has rightly exercised his jurisdiction considering the pleadings of the plaintiff and the judgment of this court in **Abhaya** (supra). The respondent’s counsel relied on this court’s judgment in **Meeran Maluk Mohammed S (Prof.) and others v. Muslim Association Tvm. And others (2018 KHC 886)** and contended that society, by mere acquisition of property with the obligation to do some charity, cannot be transformed into a Public Trust, and as such, the society cannot function with dual character or the character other than that of the society. 11 FAO 150/2014 I have gone through the pleadings of the plaintiff and the order impugned in detail. The learned Sub Judge has not gone in depth into the pleadings. Section 92 of CPC can be invoked if there is an alleged breach of any express or contractual trust created for public purpose of a charitable or religious nature or where the direction of the court is necessary, for the administration of the trust after obtaining leave shall institute a suit, so the first and foremost steps is to find out whether a trust is created. Such an exercise is not seen done by the learned Sub Judge. The order passed by the learned sub Judge is cryptic in nature. In 3 lines, the Jub Judge has found that there is no trust or committee prior to the registration of the society, and all the acquisition in the name of the first respondent was after the formation of the society. When a petition under Section 92 CPC is being considered, the court is bound to go through the pleadings, find out whether a Trust has been formed, and then proceed to consider the petition under Section 92 CPC. This is 12 FAO 150/2014 lacking in this order. Therefore, I have no hesitation in setting aside the order dated 23.3.2013, and I do so. The case is remanded to the Sub Judge’s court for fresh consideration of the petition seeking leave under Section 92 CPC after giving an opportunity to both sides within a period of 3 months from the date of receipt of a copy of this judgment as the OP was filed in the year 2011. The First Appeal against Order is allowed as above. **Sd/BASANT BALAJI, JUDGE** _dl/_