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``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` THE HONOURABLE MR. JUSTICE P.R.RAMAN THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR ``` ``` WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 FAO.No. 138 of 2008() & I.A.NO.2209/2008 --------------------- AGAINST THE ORDER DATED 18/09/2007 IN IA.72/2007 IN ``` ## - `THADALIYIL HOUSE, EDKARA, PALUNDA, NILAMBUR.` `2. MATHEW VALLIATTIL, S/O. ULAHANNAN,` - `ATHIRAMPUZHA HOUSE, THONDERNADU, MANANTHAVADY.` `2. FR,MIKHAYEL PULLATTOL,S/O. CHACKO, PURAKKADI,MEENANGADI, SULTHANBATHERY.` - `PALAKKAPARAMBIL HOUSE, KANHIRANGATTU, MAKKIYAD, VELLAMUNDA, MANNTHAVADY.` `4. N.P. KURIAN,S/O. POULOSE, NEDUVELLIL MAKKIYAD, VELLAMUNDA, MANNTHAVADY.` ``` ADDL.RESPONDENTS/CLAIMS TO BE PRESENT TRUSTEES IN THE PLACE OF DEFENDANTS 2 TO 4. ``` `5. FR.JAMES JACOB, AGED 51 YEARS, S/O.JACOB, EDAPUTHUSERI HOUSE, KARADIPARA POST, NENMENI AMSAM DESOM, SULTAN BATHERY TALUK.` `6. K.P.BIJU, S/O.PAULOSE, AGED 33 YEARS, KIZHAKKEKARA HOUSE, MAKKAD P.O, KANJANGAD VILLAGE.` ``` FAO.No. 138 of 2008() & I.A.NO.2209/2008 ``` ``` 7.BAIJU T.J., S/O.JOY, AGED 31 YEARS, TONDINGAL HOUSE, MAKKAD P.O., KANJANGAD VILLAGE. ``` ``` BY ADV. SRI.K.RAMAKUMAR (SR.) FOR R1 SMT.SARITHA DAVID CHUNKATH FOR R1 SMT.SMITHA GEORGE FOR R1 SRI.T.RAMPRASAD UNNI ``` ``` THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ## **P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ.** ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ First Appeal No.138 of 2008 and I.A.No.2209/2008 ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 11[th ] day of June, 2008 ## **J U D G M E N T** ## **P.R.RAMAN, J.** The appellants are the plaintiffs who sought to institute the suit seeking leave under Section 92 of the Code of Civil Procedure by filing I.A.No.72/2007 in Original Suit No.1/2007 before the District Judge, Kalpetta. The court below issued notice to the respondents and on entering appearance, they also filed their written objection. Both sides were heard and by the order impugned in this appeal, the leave was refused and, hence, this appeal is filed. 2. Along with the affidavit filed in support of the petition under Section 92 C.P.C, the plaintiffs produced a copy of the plaint also. There were three plaintiffs in the suit and the affidavit filed in support of the I.A was filed by one of the plaintiffs. There is a specific averment in paragraph No.1 of the affidavit that the said affidavit is filed for and on behalf of the other plaintiffs also. The allegations made in the plaint in brief are that the St.Mary's Orthodox Syrian Church, Korom, F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 2 :- Wayanad, is a Parish Church of the Malankara Orthodox Syrian Church to be governed under the 1934 Constitution as amended by the Supreme Court in 1996 and 1997. The church and its cemetery are situated in the property described in the Schedule, and the same are religious endowments for the benefit of the church and, hence, it is a public Trust. It is further averred that based on the election conducted under the supervision of Justice Malimuth, as appointed by the Supreme Court, a Managing Committee was elected, that subsequent to the election conducted based on the direction by the Supreme Court, Managing Committee of the Malankara Association decided division of Dioceses along with the allocation of churches, and accordingly, the then Catholicos cum Malankara Metropolitan HH Baselios Mar Thoma Mathews II issued a Kalpana specifying St.Mary's Orthodox Syrian Church as included in the Sulthan Bathery Diocese, under HG Kuriakose Mar Clemis as the Diocesan Metropolitan. The defendants belonging to the Patriarch faction of the Malankara Orthodox Syrian Church formed another church called Yakobaya Suriyani Sabha at Puthen Cruz with its own bye-laws in 2002 under the leadership of Thomas Dionysius, who according to the plaintiffs was prohibited from functioning in the Malankara Churches by this Court. Hence, the F.A.O.No.138 of 2008 and I.A.No.2209/2008 ## -: 3 :- defendants are disentitled from all the rights in respect of the existing church, which is a Parish Church under the Malankara Orthodox Syrian Church. The properties, movable and immovable including the cemetery are therefore, to be handed over to the plaintiffs. There is also a prayer for prohibitory injunction restraining the defendants from interfering in the administration of the church and its properties by the lawful authorities under the 1934 Constitution. They sought for a decree:- - “A) directing the defendants to deliver possession of the church, its assets and properties including the cemetery to the plaintiffs for being administered under the 1934 Constitution. - B) directing the defendants to render accounts of the income derived by the church ever since 1975 and pay the same to the Plaintiffs and for - C) a prohibitory injunction restraining the defendants and their supporters from obstructing the administration of the church and its properties by the authorities under the 1934 Constitution of the Malankara Orthodox Syrian Church as amended in 1997.” 3. In the written objection filed by the defendants, they denied the averments made in the plaint and contended that no prima facie case is made out in favour of the plaintiffs; that the petition filed is not in proper form; that the affidavit filed in support of the petition is sworn into by the first plaintiff alone and F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 4 :- that in terms of Section 92 C.P.C there should be two or more persons to join the petition to maintain an application and further such persons should have interest in the public charities or in the Trust as the case may be. They also contended that the Korom St.Mary's Yacobaya Suriyani Church is situated in the plaint schedule property and the third respondent is the Managing Trustee of the same, whereas St.Mary's Orthodox Syrian Church, Korom, is situated about 500 metres away from the plaint schedule property under the Sulthan Bathery Diocese to which 1934 Constitution of the Malankara Association would apply. It is further contended that the plaintiffs are not believers of the Yacobite faith and are not the beneficiaries also. 4. The court below considered the question whether the suit is as such permissible and whether the suit is having the characteristics and legality of proceeding under Section 92 C.P.C. The court below found that the Malankara Orthodox Syrian Church and its properties are religious endowments for the benefit of the Church and is public Trust which is not disputed. However, it found that the dispute is between the Catholicos group and the Yacobite Suriyani group, two independent factions. The affidavit filed in support of the petition was sworn to by one of the plaintiffs F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 5 :- on behalf of the second and third plaintiffs and not by two or more persons as enunciated under Section 92 C.P.C. The court below also found that there was no averment in the plaint or in the petition regarding any breach of trust or a necessity for a direction of the court as to the administration of the Trust already in existence and the validity of the same is not disputed. It is found that the petitioners have no case that there is any maladministration of the Trust or that the trustees are mismanaging the Trust and its properties and that no document is produced by the petitioners to prove this aspect. Incidentally, a reference is made to the decision **in Amrithakumari v.Ramanathan [1998 (2) KLT 30** 5] and the observations contained therein that the leave petition should contain all facts just as a petition filed for prosecuting a suit as an indigent person. But the court below went into the allegations contained in the plaint and found that the suit will not come under the mischief of Section 92 C.P.C and that there is no prima facie case for granting leave. 5. The learned counsel, Sri.S.Sreekumar, appearing on behalf of the appellants submitted that though the affidavit filed in support of the petition is sworn into by the first plaintiff as the F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 6 :- deponent, the same is for and on behalf of the other plaintiffs as well. The fact that three persons have not filed any affidavit is no reason to hold that the petition is not maintainable. According to him there are allegations of breach of trust and prima facie case is also made out. He also placed reliance on the decisions in **Mathew v.Thomas [1982 KLT 493], R.M.Narayana Chettiar and another v. N.Lakshmanan Chettiar and others [(1991) 1 SCC 48], Narayana Pillai v.Jyothi [1991 (2) KLT 458],** and also the decision in **Vidyodaya Trust v.Mohan Prasad [2008 (2) KLT 68 (SC)]** , in support of his contentions. According to him, the court is entitled to look into the averments made in the plaint to see whether the ingredients of Section 92 C.P.C are satisfied, and if prima facie case is made out Court ought to have granted leave as sought for. 6. Per contra senior counsel Sri.K.Ramakumar appearing on behalf of the respondents submits that in the plaint there is no description as to who are the plaintiffs and their connection with the Trust. According to him, there are no averments in the plaint as to how the plaintiffs are entitled to be handed over the church and its properties as sought for. He also sought to justify the order passed by the court below, inter alia, contending that the basic F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 7 :- averments required to be made in a leave petition are not made out in the affidavit or even in the plaint. In the absence of anything to show that the plaintiffs have got any interest in the Trust as such and in the absence of any allegation of mismanagement of church or breach of trust, and in the absence of any positive averment as to the entitlement of the plaintiff to be in possession of the Trust property, the application under Section 92 C.P.C must be held only to harass the administration and is liable to be dismissed. 7. Having heard both sides, we may now proceed to consider the points urged. 8. There cannot be any dispute that in an application seeking leave under Section 92 C.P.C, the court is entitled to look into the averments in the affidavit as well as the averments made in the plaint. This position has been amply made clear in the Division Bench decision in Mathew's case (op.cit) and also the decision of the Apex Court in R.M.Narayana Chettiar's case cited above. Even in the latest decision of the Apex Court in Vidyodaya Trust's case cited above, it could be seen that the Court had in fact looked into the averments made in the plaint in deciding the question. The mere fact that the court below has referred to a passage in Amrithakumari's case cited above and its observations F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 8 :- that the affidavit of a petition should contain all the details by itself does not make the order bad since the court below had looked into the averments made in the plaint also to form its opinion whether leave should be granted or not. It is true that in an affidavit it cannot be signed by all the plaintiffs and we find that all the three plaintiffs have signed the plaint and this is sufficient requirement in the eye of law. But then the averments in the affidavit along with the plaint even if it is looked into, it is found that there is no averment in the plaint as to who are the plaintiffs and their direct connection with the Trust. True, in paragraph No.8 of the plaint there is an averment that “this suit is being filed against the defendants as representing all those who are supporting the claim of the defendants and opposing the right of the plaintiffs, and this suit is being instituted on behalf of the Catholicos group of parishioners of the Korom Church”, we find that this averment is not sufficient for the purpose of maintaining a petition under Section 92 C.P.C. As per Section 92 C.P.C there must be an allegation of a breach of any express or constructive trust created for public purposes of a charitable or religious nature, or whether the direction of the court is deemed necessary for the administration of any such Trust and such an application should be F.A.O.No.138 of 2008 and I.A.No.2209/2008 -: 9 :- filed by the Advocate General, or two or more persons having an interest in the Trust. Therefore, atleast the petition or the plaint should state that the plaintiffs have an interest in the Trust and how. That apart, even though the prayer made in the petition is for a decree against the defendants to handover the Trust properties to the plaintiffs, merely because the plaintiffs are members of any group in the absence of any specific averments in the plaint or in the affidavit as to how they got the right to represent any particular faction and their entitlement for being put in possession of the properties both movable and immovable on behalf of such faction, even the prayer sought for are not liable to be granted. Therefore, we find that the conclusion reached by the court below that leave cannot be granted on the face of the allegations made on the petition and plaint and for our own reasons as stated above is correct. There is no merit in this appeal, accordingly, the same is dismissed. I.A.No.2209/2007 will also stand dismissed. ## **P.R.RAMAN, Judge** ## **T.R.RAMACHANDRAN NAIR, Judge** ms