K.R. Rajan v. Cherian K. Cherian and C.P. Prabhakaran Pillai

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 19TH DAY OF NOVEMBER 2019 / 28TH KARTHIKA, 1941** ## **OP(C).No.2855 OF 2018** **AGAINST EXT.P7 ORDER DATED 17.10.2018 IN IA 293/2018 IN** **OS 9/2015 OF SUB COURT, CHENGANNUR** **-----** ## **PETITIONER/1ST DEFENDANT:** **K.R.RAJAN, AGED 58 YEARS, S/O.RAMAKRISHNAN NAIR, SREENILAYAM, THODUPUZHA MURI, THODUPUZHA P.O., THODUPUZHA TALUK (FROM KOTTOOR KIZHAKKETHIL, KIZHAKKEVAZHI MURI, THRIPPERUMTHURA VILLAGE, MAVELIKKARA TALUK).** ## **BY ADV. SRI.N.ASHOK KUMAR** ## **RESPONDENTS/PLAINTIFFS:** **1 CHERIAN K. CHERIAN, AGED 77 YEARS, S/O.LATE K.C.CHERIAN, KOTTAPURATHU HOUSE, CHENNITHALA SOUTH MURI, MAVELIKKARA TALUK, PIN - 690 105. 2 C.P.PRABHAKARAN PILLAI, AGED 72 YEARS, S/O LATE PADMANABHA PILLAI, KALAPURAYIL HOUSE, PUTHENKOTTACKAKOM MURI,CHENNITHALA, MAVELIKKARA TALUK, PIN - 690105.** **R1-2 BY ADV. SRI.JACOB P.ALEX R1-2 BY ADV. SRI.JOSEPH P.ALEX** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 19.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R.”** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = O. P. (C) No.2855 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 19[th] day of November, 2019** ## **JUDGMENT** The dismissal of an application seeking revocation of leave granted to the respondentsplaintiffs under Section 92 of the Code of Civil Procedure, is assailed in this original petition. 2. Heard learned counsel Sri. N.Asok Kumar for the petitioner-1[st] defendant and Sri. Joseph P. Alex the learned counsel for the respondents-plaintiffs. 3. There is no dispute that, “the Mahatma High School Committee, Chennithala”, is a public trust. There is no challenge that, the plaintiffs are persons having “interest” in the trust, as contemplated under Section 92 CPC. It is not in dispute that they are the members of the trust. There is no challenge that the reliefs proposed to be sought for falls within the sweep of Section 92 CPC. It could hardly be contended that the O. P. (C) No.2855 of 2018 :- 2 :- averments in the leave petition does not satisfy the requirements to seek for leave. 4. The thrust of the contention of the petitioner is that, though Ext.P4 order dated 02.09.2015 in I.A 163 of 2015 reads as, “Leave is already granted”, in fact none of the earlier orders indicate grant of leave. Therefore leave was either not granted or even if leave was granted, it was without notice to the proposed defendants. Decisions are legion to the effect that leave of grant need not necessarily be preceded by notice [See Major Arch Bishop, Angamaly and others v. P.A.Lalan Tharakan and others 2016 (2) KLT 791)]. The proposed defendants can, on appearance, seek for revocation of the leave. That is exactly what has been done by the petitioner herein in the instant case. At any rate, the order impugned need only be read as the order granting leave after hearing all the parties. Therefore, the said ground of challenge does not hold good. O. P. (C) No.2855 of 2018 :- 3 :- 5. Yet another ground of challenge urged by Sri.Asok Kumar is that, the trust in question has not been made a party to the proceedings and without the Trust on the array, the proceedings are bad in law . The contention is ably met by Sri. Joseph P. Alex, the learned counsel for the respondents contending that, a trust is not a legal entity and hence it cannot be impleaded. He places reliance on Government of the Province of Bombay v. Pestonji Ardeshir Wadia & Ors. [AIR 1949 PC 143]. That was a case where the trustees of a trust named, “Wadia Trust” brought suits against the Government for recovery of non-agricultural assessment collected by the Government. Sufficiency of notice issued under Section 80 of the Code of Civil Procedure was in issue before the Privy Council. Though notice under Section 80 was issued to Government, that was issued in the name of Wadia Trust and not by the trustees in their names. The Privy Council held, O. P. (C) No.2855 of 2018 :- 4 :- _“The trust is not the plaintiff, and there is no power under the Code for trustees to sue in the name of their trust, as members of a firm may sue in the name of the firm. The plaintiffs were, and were bound to be, the three trustees, and, as no notice was given specifying their names and addresses, the condition precedent to the filing of the suit was not fulfilled”_ . 6. The view taken by the privy council regarding the identity of the person who issued the notice and the person who brought the suit, was acknowledged by the Apex Court in Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46]. Any way, that being beside the point, is being left there. Penner J.E , the Professor of Law at King's College, London, in his book, The Law of Trusts , 5[th] edition has commented thus; _“In the same way that the trustee is the trust's legal face to the world because of his legal ownership of the property, the same goes for the contractual obligations the trustee enters into in the course of carrying out the trust. When, for example, a trustee sells some company shares_ O. P. (C) No.2855 of 2018 :- 5 :- _he holds on trust and buys others in the course of his investment of the trust fund, he makes these contracts to buy and sell in his own name. The trust itself has no legal personality like a company, on behalf of which agents of the company make contracts which bind the company as a legal person itself. Having no legal personality, one cannot sue the trust itself for breach of contract; one sues the trustee for his own breach of contract, even though the breach was of contractual obligation he undertook to benefit the trust.”_ 7. The legal status of a trust, is thus well discernible. Trust not being a legal person, and the Code of Civil Procedure not providing any enabling provision for the Trust to sue or for being sued in its name, there is no merit in the contention that the Trust is to be arrayed as an eo-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustees who are to be impleaded to represent the trust. Therefore, the contention of the petitioner on the O. P. (C) No.2855 of 2018 :- 6 :- ground of non-joinder, also fails. The original petition lacks merit and is accordingly dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge ## **APPENDIX** ## **OP(C).No.2855 OF 2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LEAVE PETITION DATED 29/06/2015 UNDER SECTION 92 OF CPC FILED BY RESPONDENTS AS IA NO.163/2015.** **EXHIBIT P2 TRUE COPY OF PLAINT IN OS NO. 9/2015 DATED 29/06/2015 OF SUB COURT, CHENGANNUR.** **EXHIBIT P3 TRUE COPY OF WRITTEN STATEMENT DATED 25/09/2015 FILED BY DEFENDANTS 1,2,4,5 & 6 IN OS 9/2015.** - **EXHIBIT P4 TRUE COPY OF ORDER IN IA NO.163/2015 IN OS NO.9/2015 DATED 02/09/2015 OF SUB COURT, CHENGANNUR.** **EXHIBIT P5 TRUE COPY OF PETITION NUMBERED AS IA NO.293/2018 IN OS 9/2015 OF SUB COURT, CHENGANNUR.** **EXHIBIT P6 TRUE COPY OF IMPLEADING PETITION AS IA NO.286/2018 IN OS NO.9/2015.** **EXHIBIT P7** **TRUE COPY OF ORDER IN IA NO.296/2018 IN OS NO.9/2015 DATED 17/10/2018 OF SUB COURT, CHENGANNUR.** -----