Mohan Das P.A. v. Thuravankara Puliyampully NNamboodiriyachan Nada Devaswom Trust, Thuravankara and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` WEDNESDAY, THE 7[TH] DAY OF JUNE 2023 / 17TH JYAISHTA, 1945 ``` ``` CRP NO. 533 OF 2017 ``` ``` AGAINST THE ORDER DATED 31/7/2017 IN I.A.NO.951/2017 IN OS 74/2017 ``` ## **`OF MUNSIFF COURT,ALUVA`** ## **`PETITIONER/1ST DEFENDANT:`** ``` MOHAN DAS P.A.,S/O AYYAPPAN, AGED 55 YEARS, PARAYIL HOUSE,SREEMOOLOMANGALAM PO, ALUVA.683580. ``` ``` BY ADV SRI.SREELAL N.WARRIER ``` ## **`RESPONDENTS/PLAINTIFFS & 2ND DEFENDANT:`** - **`1 SRI.THURAVANKARA PULIYAMPULLY, NNAMBOODIRIYACHAN NADA DEWASOM TRUST, THURAVANKARA PO, KANJOOR, REPRESENTED BY ITS PRESIDENT.`** - **`2 SRI. MOHAN DAS P.K., S/O KUMARASASTHRI, AGED 67 YEARS, PAINUKAL HOUSE,PAIRAROOR KARA, MATTOR VILLAGE, ALUVA TALUK.`** - **`3 SRI. THURAVANKARA PULIYAMPULLY NNAMBOODIRIYACHAN NADA DEVASWOM TRUST, THURAVANKARA PO, REPRESENTED BY ITS SECRETARY-SHOBY O.R, S/O RAMAKRISHAN, AGED 36 YEARS,OLAPPILLY HOUSE, THURVANKARA, KANJOOR.`** - **`4 SRI. THURAVANKARA PULIYAMPULLY NNAMBOODIRIYACHAN NADA DEVASWOM TRUST, THURAVANKARA PO, REPRESENTED BY ITS TREASURER, RAMESH K.K, S/O KUJUMON, KANIKKAMPARAMBIL,AGED 39 YEARS, PIRAROOR KARA, MATTOR VILLAGE, ALUVA TALUK.`** - **`5 SRI. AYYAPPANKUTTY A.K, S/O LATE. KUJUVALLAN, AGED 44 YEARS,AMBATTUTHARA HOUSE, THURAVANKARA PO, KANJOOR, VADAKUMBHAGAM VILLAGE.683575. BY ADVS.`** - **`SRI.P.MARTIN JOSE SMT.A.SREEKALA (VAIKOM) SRI.P.PRIJITH SRI.S.SREEKUMAR SR. SMT.A.SREEKALA VAIKOM SRI.THOMAS P.KURUVILLA`** ``` THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 07.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRP NO. 533 OF 2017 ``` ``` 2 ``` ## **`ORDER`** ``` The prime question came up for consideration is how far it is permissible to exercise the jurisdiction under Section 92 C.P.C. in so far as the dispute pertains toexistence of public trust of religious or charitable nature and what actually governs the area. Section 92 C.P.C. is extracted ``` ``` below for reference: ``` ``` “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: ``` ``` (a) removing any trustee; ``` ``` (b) appointing a new trustee; ``` ``` (c) vesting any property in a trustee; ``` ``` (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; ``` ``` d) directing accounts and inquiries; ``` ``` CRP NO. 533 OF 2017 ``` ``` 3 ``` ``` (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; ``` ``` (g) settling a scheme; or ``` ``` (h) granting such further or other relief as the nature of the case may require. ``` ``` (2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863) or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. ``` ``` (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely : ``` ``` (a) where the original purposes of the trust, in whole or in part, ``` ``` (i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or ``` ``` (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or ``` ``` (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or ``` ``` (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or ``` ``` CRP NO. 533 OF 2017 ``` ``` 4 ``` ``` (e) where the original purposes, in whole or in part, have, since they were laid down, ``` ``` (i) been adequately provided for by other means, or ``` ``` (ii) ceased, as being useless or harmful to the community, or ``` ``` (iii) ceased to be, in law, charitable, or ``` ``` (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.” ``` ``` 2.The prayer in the suit is for declaring that convening of extra ordinary general body meeting and election of advisory committee are unconstitutional, illegal and void, mandatory injunction to direct the elected person to vacate the premises and to hand over the same to the plaintiffs and for a permanent injunction not to enter into the property for the purpose of discharging duties, if any, by virtue of byelaws of the trust and from doing anything detrimental to the smooth functioning of the trust. The maintainability of the suit before the regular civil court was disputed on the ground that the matter would come under the purview of Section 92 C.P.C., the special provision dealing with public trust of religious or charitable nature. It was ``` ``` CRP NO. 533 OF 2017 ``` ``` 5 ``` ``` repelled by the trial court under a preliminary issue, against which the first defendant came up in revision. ``` ``` 3.The frame of suit,the dispute raised and the relief sought would clearly show that the suit is for removing the elected persons from their respective office of the trust,i.e. Advisory Committee, and to declare that the plaintiffs are entitled to occupy the same and to handle all matters annexed to the temple in question. The prayer itself and the relief sought would show the nature of the suit and it is for removing the trustees from the respective office and to appoint the plaintiffs in that place, which would satisfy clause (a) and (b) to Section 92(1) C.P.C., though the relief was moulded in such a way so as to appear that it is a relief of declaration. The prayer incorporated in the suit and the various pleadings would squarely admit existence of a trust and bye-laws governing the functioning of the trust. Even a constructive trust created for public purpose ``` ``` CRP NO. 533 OF 2017 ``` ``` 6 ``` ``` of a charitable or religious nature would come under the purview of Section 92 C.P.C.. Nobody will be permitted to mould the relief under the guise of a declaration so as to avoid the application of Section 92 C.P.C., which is a special provision incorporated with its legal consequences and restrictions imposed. The prayer is to the effect to declare that the occupation of trustees in the respective office is unconstitutional, illegal and void, which really amounts to indirectly asking removal of the respective persons from their trusteeship and it is incorporated and moulded so as to avoid the application of Section 92 C.P.C. The court has to look into the crux of the matter and the actual dispute involved and the effect of the relief, if it was granted and whether it would attract the matters enumerated under various clauses to Section 92(1) C.P.C.. ``` ``` 4.Regarding the question whether it is a private trust or a public trust of a religious ``` ``` CRP NO. 533 OF 2017 ``` ``` 7 ``` ``` nature, even going by the plaint pleading which admits the existence of a trust of public nature would sufficiently bring the matter within the sweep of Section 92 C.P.C. The legal position is very much settled by the Apex Court inVidyodaya Trust and Others v. Mohan Prasad R. 2006 (7)SCC 452. The suit under Section 92 C.P.C. is of a special nature which presupposes existence of a public trust of religious or charitable character. If it is not vindicating any personal right or any individual right apart from the trust attached with the person, but for redressing any grievance attached to the trust or its affairs or office either for removal or reinstatement or to permit anyone to occupy the trusteeship,the matter would stand outside the jurisdiction of regular court and will stand governed by Section 92 C.P.C. Further, a suit for vindicating a private right would not stand within the purview of Section 92 C.P.C. (Swami Paramatmanand Saraswathi and another v. Ramji Tripthi and Another [(1974) 2 SCC 695]. A declaration sought ``` ``` CRP NO. 533 OF 2017 ``` ``` 8 ``` ``` by the plaintiffs pertaining to the status of office bearers, their right to continue or to remove the trustees shall not be misunderstood with a suit for vindicating a personal right or individual right, which is standing wholly on personal or individual right apart from the administration or affairs of the trust. ``` ``` 5.In the instant case, the existence of a trust is incorporated and admitted in the relief portion, besides the admission in the plaint pleading. A mere reading of the plaint would satisfy the initial requirement of existence of public trust of religious nature. It was not properly understood by the trial court. Necessarily, the suit can only be brought up under Section 92 C.P.C. and not otherwise. The test to be applied is to find out what would be the effect of a decree that can be granted and whether it would fall under the various clauses enumerated under Section 92(1) C.P.C. directly or indirectly and in both the cases, if the answer is positive, the ``` ``` CRP NO. 533 OF 2017 ``` ``` 9 ``` ``` jurisdiction of regular court will stand ousted by virtue of that provision. Hence, the order of the trial court will stand set aside. ``` ``` The C.R.P. will stand allowed accordingly by rejecting the suit under Order VII Rule 11 C.P.C. for proper presentation under Section 92 C.P.C. ``` ``` Sd/- ``` ``` P.SOMARAJAN ``` ``` JUDGE ``` msp