Sree Shankaranarayana Temple Koliyoor v. Kodange Saraswathi Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 SA.No. 318 of 1997(D) --------------------AS.7/1993 of SUB COURT, KASARAGOD OS.537/1990 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT/RESPONDENT/PLAINTIFF: ----------- SREE SHANKARANARAYANA TEMPLE KOLIYOOR, REPRESENTED BY ITS MANAGING TRUSTEE SRI. U. GANAPATHI BHAT, S/O. U. KRISHNA BHAT, HINDU, AGRICULTURIST, R/AT KOLIYOOR, KASARAAGOD TALUK, KOLIYOOR VILLAGE AND POST. BY ADVS. SRI.MPR.NAIR SRI.DEVAN RAMACHANDRAN RESPONDENT/APPELLANT/DEFENDANT: ------------- KODANGE SARASWATHI AMMA, WIDOW OF LATE KODANGE KRISHNA BHAT, HINDU, LANDHOLDER, R/AT KODANGE IN KOLIYOOR VILLAGE, KASARAGOD TALUK, P.O. KOLIYOOR. BY // THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID, J. ----------------------------------------S.A.NO. 318 OF 1997 ----------------------------------------** Dated this the 11[th] day of January, 2008 ## **JUDGMENT** The plaintiff in O.S. No.537 of 1990 on the file of the Munsiff's Court, Kasaragod is the appellant in this Second Appeal. The suit was instituted by the appellant as plaintiff for recovery of a sum of Rs.978/with future interest being the reimbursement of the amount spent by the plaintiff for having conducted the Viniyogas specified in Ext.A1 settlement deed. The Munsiff's Court passed a decree entitling the appellant/plaintiff to realise an amount of Rs.978/- with interest at the rate of 6% per annum from the defendant charged on the plaint 'A' schedule properties. The appellate court reversed the judgment and decree and dismissed the suit as not maintainable for the reason that the suit was filed only by one of the trustees and that since the dispute in the suit is between the trust and the settler, all the co-trustees must join as plaintiffs. The lower appellate court also entered all findings in favour of the plaintiff, confirming the findings of the Munsiff's Court. The plaintiff/appellant filed the Second Appeal being aggrieved by the decision of the lower S.A.NO.318/1997 2 appellate court on the question of maintainability of the suit. 2. The short facts for the purpose of deciding this appeal are as follows: The parties are referred to as the plaintiff and the defendant as in the suit. The plaintiff is Sri. Shankaranarayana Temple, Koliyoor, represented by the Manging Trustee. There is no trust deed constituting the trust. The husband of the defendant, Kodange Krishna Bhat had registered a gift settlement deed dated 20.7.1993 by which certain Viniyogas were to be performed at the plaintiff's temple on Mandala Pooja day which falls on the 18[th] of Dhanumasam of every year. The Viniyogas mentioned in Ext.A1 settlement deed were to be performed by the deceased husband of the defendant and after him by his legal representatives. In Ext.A1 gift deed, the cost of the Viniyogas is shown as Rs.182/-. According to the plaintiff, the plaintiff has been performing the Viniyogas on behalf of the defendant who was the only legal heir of her deceased husband. It is provided in the gift deed that the plaintiff is entitled to claim the expenses of the Viniyogas on the charged property described in plaint A schedule. It is averred in the plaint that the plaintiff has performed the Viniyogas for the years 1987, 1988, 1989 and 1990 and that since the defendant failed to pay the amount incurred for the performance of the Viniyogas, the plaintiff S.A.NO.318/1997 3 is entitled to realise the same from the defendant and, therefore, prayed for a decree directing the defendant to pay the plaintiff a sum of Rs.978/- with future interest thereon at the rate of 6% per annum. In the written statement filed by the defendant, she has denied the performance of the Viniyogas by the plaintiff and contended that she is not bound to pay the annuity as provided in the settlement deed. The defendant also contended in the written statement that the plaintiff temple is represented by a council of trustees apart from the signatory to the plaint and, therefore, the suit is not maintainable and is liable to be dismissed. 3. I have heard the learned counsel appearing for the appellant. There is no representation for the respondent. I have gone through the various clauses in Ext.A1 settlement deed. As per Ext.A1 settlement deed, the executor and after him, his legal heirs are bound to perform the Viniyogas at their expenses in the temple on the Mandala Pooja day of every year. The Managing trustee of the plaintiff temple was examined as PW.1 and Exts.A1 to A17 were marked through him. In paragraphs 9, 10 and 11 of the judgment of the Munsiff's Court, the documents produced by the plaintiff and the oral evidence tendered by Pws.1 to 3 are discussed in detail. On the side of the defendant, DW.1 was examined and Exts.B1 and B2 were marked. On an analysis of the evidence on record, the S.A.NO.318/1997 4 Munsiff's Court, by giving special emphasis to the testimony of Pws.1 to 3 and Exts.A13 to A16, came to the conclusion that the oral and documentary evidence would show that Samaradhane in the temple was performed during the years 1987 to 1990. After considering the contentions raised by the defendant, the learned Munsiff concluded that the evidence as a whole would show that the plaintiff has performed Viniyogas as stipulated in Ext.A1in whatever manner possible with a sum of Rs.182/- on behalf of the defendant. Therefore, the court concluded and entered a finding that the defendant is liable to pay an amount of Rs.182/to the plaintiff every year. A decree was, therefore, passed entitling the plaintiff to realise an amount of Rs.978/- from the defendant with interest at the rate of 6% per annum. 4. The appellate court, on reappreciating the evidence, came to the conclusion that the temple had spent the amount for conducting the Viniyogas. According to the appellate court, the oral as well as the documentary evidence supports this conclusion. The lower appellate court confirmed the findings of the trial court on merits, but at the same time dismissed the suit on the sole ground that the trustees did not join together in the suit as plaintiffs. The lower appellate court held that it was not permissible for one or two of the trustees to represent a trust and that S.A.NO.318/1997 5 in as much as the suit was filed only by one of the trustees, is is not maintainable. 5. The plaintiff in the suit challenged the finding of the court below. The following substantial questions of law are formulated in the Second Appeal: 1. Whether in the absence of a Trust Deed, the court below was justified in dismissing the suit on the ground that all the Trustees of Devaswom should join as plaintiffs. 2. In a case where there was a specific authorisation on behalf of the temple a mere designation of “Managing Trustee” was sufficient to create a Trust. 3. Whether on the facts and circumstances of the case, Order 31 Rule 2 of the C.P.C. was applicable. 4. Since the court below had found that on merits the plaintiff had made out a case, whether the court below was justified in dismissing the suit on a mere assumption that there existed a Trust and all the trustees should join as plaintiffs. 5. Whether on the facts of the case the provisions of the Indian Trust Act are applicable. 6. Learned counsel appearing for the appellant brought to my notice S.A.NO.318/1997 6 the provisions in Ext.A1 settlement deed wherein an authorisation was given to perform the services through the Managing Trustee of the temple who is the plaintiff in the suit. In paragraph 5 of the settlement deed it is stated that Krishna Bhat and his legal heirs are liable to pay Rs.182/towards the aforesaid services to the Managing trustee of the aforesaid temple on the first Mandala Pooja of Dhanumasam. The Managing trustee has to collect the amount and do the aforesaid Pooja and Brahmin feast etc. after giving invitation to Krishna Bhat for the present and thereafter to his legal heirs and also to the Brahmin class of two villages belonging to the temple. It is also contended that since there is no trust deed constituting any trust, the court below ought not to have held that all the trustees should have joined as plaintiffs in the suit. It is also submitted that in view of Ext.A17 authorisation, the plaintiff was fully competent and authorised to perform the Viniyogas. According to the appellant, it is not correct to say that the temple is one managed by the trust governed by the Indian Trust Act. The finding, according to the appellant, is incorrect on the ground that it is not supported by any evidence. 7. On going through the recitals in Exts.A1, A17and A18 documents, I am of the view that the Managing trustee representing the plaintiff temple is entitled to institute the suit without the junction of any S.A.NO.318/1997 7 other persons. The duty to be performed as expressed by the settler in Ext.A1is that Viniyogas shall be performed by the Managing trustee. Moreover, Ext.A17 is the authorisation given to the plaintiff temple by which the Managing trustee is entrusted to conduct litigations and collect amount due from the defendant. Order 31 Rule 2 C.P.C. provides that where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them. Since the suit is filed by the trust as such, any other trustees who are authorised to represent the said trust are competent to file and conduct the litigation. Therefore, the finding of the lower appellate court that the suit is not maintainable in law is not a finding which can be sustained. The finding that the suit is not maintainable in law is based on a decision of the Gujarat High Court reported in **Athmaram v. Gulam Hussim, A.I.R. 1973 Gujarat 113.** That is a case regarding delegation of functions or power to a co-trustee or any other person. It has been held in the above decision that unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in the regular course of business, the trustee cannot delegate his functions or powers to a co-trustee. The question raised in this case is entirely different from the question decided in the above decision. S.A.NO.318/1997 8 8. On considering the entire facts and circumstances of the case, I am of the view that the suit instituted by the plaintiff temple represented by its Managing trustee is in order. The appellate court also confirmed the findings recorded by the trial court on the merits of the issue. I find no reason to disagree with the finding of the trial court which was confirmed in appeal by the appellate court. In the result, the judgment and decree passed by the lower appellate court are set aside. The Second Appeal is allowed. The judgment and decree of the trial court are restored. There will be no order as to costs. ## **(HARUN-UL-RASHID, JUDGE)** ## **sp/** S.A.NO.318/1997 9 ## **HAURN-UL-RASHID, J.** **S.A.NO318/1997** **JUDGMENT** **11TH JANUARY, 2008**