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High Court of Karnataka
N. KUMAR & A.N. VENUGOPALA GOWDA
Christopher Karkada, Bangalore & Others
Versus
Church of South India, rep. by its Modarator Rt. Rev. K.G. Samuel & Others
Regular First Appeal No. 280 of 2001 c/w RFA.CROB.No. 20 of 2001
Decided on : 19-11-2011
CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Application seeking permission - Held, Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92, by persons whose activities were not for protection of the interests of the public trusts. First and the foremost requirement for an application under Section 92 is, the plaintiffs should bring the suit to vindicate the right of the public. Leave of the Court once grantedno fresh permission is required if the original plaintiff dies.
CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Scope and Operation of - Nature of reliefs to be granted under Section 92 - Held, To attract the operation of Section 92, the suit must be of a certain character and pray for certain reliefs. In the first place, the suit should relate to a trust, created for public purposes of a charitable or religious nature. In the second place, the suit should relate to a trust, created for public purposes of a charitable or religious nature. In the second place, it must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. In the third place, the reliefs claimed must be one or other of the reliefs specified in the Section and, lastly, the suit must be one brought in a representative capacity, in the interests of the public or of the trust itself and not for vindicating the private rights of the plaintiff. It these conditions are present, the suit can be brought in conformity with the Section 92 of the Civil Procedure Code. A suit framed under Section 92 of the Civil Procedure Code, in only reliefs which the plaintiff can Claim and the Court can grant are those enumerated specifically in the different Clauses of the Section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of the Clauses. The suit is fundamentally on behalf of the entire body of person who are interested in the trust. It is for the vindication of public rights. A with under Section 92 of the Code is a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. In deciding, whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. It is only the allegations in the plaint that should be looked into in the first instance, to see, whether the suit falls within the ambit of Section 92.
CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Representation suit - Grant of Leave -Held, The Suit under Section 92 of CPC is a representative suit. It is filed representing the public at large. Once leave is granted and it has attained finality, if persons who are parties initially were to die and in their place others are substituted, it is not necessary that all those persons who are substituted should again seek leave of the Court, to prosecute the suit. It is because, the permission is granted to the public at large and not to the individual plaintiffs. Therefore, if the original plaintiff dies and others are substituted in their place, as the permission is granted for the public, the permission granted earlier holds good even in respect of them.
CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Framing of Scheme by the District Court - Held, The District Court would under the Code of Civil Procedure be the original Court in regard to the framing of Schemes. The Court has discretion under Section 92 of the Code of Civil Procedure to frame a scheme in such a manner as commends itself to the Court so long as the scheme fulfills the objects sought to be achieved by the Constitution. The Court framing the Scheme which admittedly acts as a Court of law at the time of framing the Scheme may instead of making a provision for appointment or removal of trustees for all time to come, may reserve to itself the power to appoint or remove trustees, as and when occasion may arise. When pursuant to such a power, the Court is approached for the purpose of appointing or removing trustees, the Court certainly acts as a Court of Law and not as a persona designate. Same would be the position in case of other matters relating to the administration of the charity. The Court framing the scheme reserves to itself any power in regard to matters arising in the course of the administration of the charity or for the purpose of effectively administering the charity and, there is no enlargement of its judicial power by the provision reserving such power. Just as the District Court could reserve to itself powers in relation to various matters arising in the administration of the charity, the High Court also can reserve such powers either to itself or to the District Court, from whose decree the appeal is brought before it. When the High Court reserves such powers to itself, it is clear that there is no enlargement of the jurisdiction of the High Court as a result of the decree passed by it. Equally, there is no enlargement of the jurisdiction of the District Court when the High Court reserves such powers to the District Court. The District Court which is the original Court, framing the Scheme is empowered to implement the Scheme or to work out the Scheme as and when occasion arises. The question, whether a decree framing a scheme for a charitable trust is executable or not, must depend on the language and on the scope of the decree or of that particular part of the decree in respect of which the question arises. The defendant Nos. 1, 3 and 40 or any other person, in possession of these trust properties, are not entitled to continue in possession of the property and that they have to deliver the property to the trustees for the benefit of the beneficiaries. Defendants Nos. 3 and 40 are ineligible to be trustees and to be trustees and to manage these properties, though they have been managing these properties in question as de facto trustees or trustees de son tort.
CODE OF CIVIL PROCEDURE, 1908 - Section 100: [N. Kumar & A.N. Venugopala Gowda, JJ] Regular second appeal - Possession obtained through the documents which are void ab initio - Management of Trust Properties in contravention of the Trust deeds - Breach of Trust - Held, That all the suit schedule properties are in possession of defendant Nos. 1, 3, 40, who are not entitled to the same. They got into possession of the property under registered documents which are void ab initio. Having got into possession, the third defendant is acting as a trustee of all the suit schedule properties and the third defendant has alienated properties. In the first place, because of the assertion of title by the third defendant in respect of the scheduled properties and alienating the properties belonging to the trust, it has committed breach of trust. Secondly, it has no authority to manage the suit scheduled properties. They are not persons who are duly authorized to manage and administer the schedule properties. They are managing the property in contravention of the trust deeds. As such, it amounts to breach of trust. Therefore, the case of breach of trust, pleaded by the plaintiffs is clearly established from the evidence on record.
CODE OF CIVIL PROCEDURE, 1908 - Section 100: [N. Kumar & A.N. Venugopala Gowda, JJ] Second Appeal - Trust created for the benefit of Church - Held, A Church is a voluntary association of Christians, united for discipline and worship. It is an assembly of persons united by the profession of the same Christian faith, who meet to-gather for religious worship. A body of communicants gathered into Church order; body or community of Christian. It denotes an assembly. It is adopted to described the disciples of ’Jesus Christ’. It does not mean a building. It means a religious society, founded and established by ’Jesus Christ’, to receive, preserve and propagate ’His doctrines and Ordinances’. It has two distinct meanings. It may mean either the aggregate of the individual members of the church or it may mean the quasi corporate institution, which carries on the religious work of the denomination, whose name it bears. It is a religious institution. At any particular point of time, the members who constitute the church, may be certain, but it is a fluctuating body of persons, answering a particular description. The fact that the fluctuating body of persons is a section of the public, following particular religious faith or is only a sect of persons of a certain religious persuasion, would not make any difference in the matter. The Church is meant for religion, for charity. It is not meant for any private individuals. It is meant for a body of individuals or Community of Christians. It is fluctuating body of persons belonging to a particular religious denomination, who from a section of the public. Therefore, a trust created for the benefit of Church is a public religious and charitable trust and is not a private trust. The Trial Court on the basis of the contents of these two documents has rightly held, that both the trusts are created in respect of A and B Schedule properties. Therefore, the said finding is in conformity with Ex. P-35 and P-37 and also the legal evidence on record. The finding being neither perverse no illegal, no case for interference is made out. Accordingly, the said finding is affirmed.
CODE OF CIVIL PROCEDURE, 1908 - Order 1, Rule 8: [N. Kumar & A.N. Venugopala Gowda, JJ] Representative suit - When a suit is filed in representative capacity, it binds not only the parties to suit but also persons who are not parties to the suit.
INDIAN TRUST ACT, 1882 - Charitable Trust: [N. Kumar & A.N. Venugopala Gowda, JJ] Held, It is a relationship "arising as a result of a manifestation of an intention to create it". A Charitable Trust, like an express private trust, and unlike a constructive trust, is created, because a person having power to create it has manifested by his words or conduct, an intention to create it. It is a relationship "subjecting the person by whom the property is held to equal duties." A charitable trust may be created by any of the methods used in creating a private trust. Thus, the owner of property can create a charitable trust, either by conveying it inter vivos to another person as trustee or by devising or bequeathing it upon a charitable trust. So also the owner of property can create a charitable trust by declaring himself trustee of the property for a charitable purpose. The Trustee of Charitable Trust are under a duty under a duty "to deal with the property for a charitable purpose." In the case of a charitable trust, property is devoted to the accomplishment of purposes which are beneficial or may be supposed to be beneficial to the community. This, indeed, is the fundamental distinction between private trusts and charitable trusts. - Further Held, A charitable trust is a relationship "with respect to property". Neither a charitable trust nor a private trust can be created, unless there is some property which is the subject of the trust. The property may, of curse, be an interest in a tangible thing, it may be a chose in action, it may be an equitable interest. The principles in regard to what property may be the subject of a charitable trust are the same as the principles applicable to private trusts. A trust, in order to be charitable, must be a of a public character; that is, it must be for the benefit of the community or an appreciably important Section of the Community.
INDIAN TRUST ACT, 1882 - Distinction between Public Trust & Private Trust: [N. Kumar & A.N. Venugopala Gowda, JJ] Held, The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition. If the intention of the donor is merely to benefit specific individuals, the gift is not charitable, even though the motive of the gift may be to relieve their poverty or accomplish some other purpose with reference to those particular individuals which would be charitable. If not so confined. On the other hand, if the donor’s object is to accomplish the abstract purpose of relieving poverty, advancing education or religion or other purpose, it is charitable. Religious endowments are of two kinds, public and private. - Further held, In a public endowment, the dedication is for the use or benefit of the public at large or a specified class. But when property is set apart for the worship of a family god, in which the public is not interested, the endowment is a private one. It is a question of fact, whether a temple is a private, would have to be decided in each case with reference to the terms of the documents, if any; and if there is no documents or its language is ambiguous, the decision would depend upon inferences which could be legitimately drawn from the evidence adduced in the case, the material evidence being the actual user and public repute.
INDIAN TRUST ACT, 1882 - Express Trusts and Trusts arising by operation of law [N. Kumar & A.N. Venugopala Gowda, JJ] Held, Indian Trust Act, 1882 defines the word ’ Trust’. It means, the trust is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner. The word "Trust" has been used in Section 92 in a general and not in a restrictive sense. IT connotes an obligation or duty attaching to a person in charge of properties dedicated to religious or charitable purpose, which could be enforced either in law or equity. The trust need not be express, it may be constructive as well. Section refers to both express or constructive trust. A distinction may be drawn between express trusts and trusts arising by operation of law. Generally speaking, an express trust may be said to arise from the intention of a person to create a trust declared directly or indirectly. Precatory trusts, that is trusts created by expressions of wish or desire which on their true construction amount to declarations of trust, are express trusts, because in such cases, the Court finds as a matter of construction that the settler expressed, indirectly, an intention to create a trust. Trusts arising by operation of law are trusts which are not declared by any person, either by clear or doubtful words. Trusts arising by operation law may be further divided into implied or presumptive, resulting trusts. A constructive trust includes only trusts imposed by law against the trustee’s will, for instance, where a trustee renews a trust lease in his own name, but which is sometimes used to include all trusts other than express trusts. Thus, a trust is a very important and curious instance of duplicate ownership. Trust property is that which is owned by two persons at the same time, the relation between the owners being such that, one of them is under an obligation to use his ownership for the benefit of the other. As between trustees and beneficiary, the law recognizes the truth of the matter; as between these two, the property belongs to the latter and not to the former.
INDIAN TRUST ACT, 1882 - Section 78: [N. Kumar & A.N. Venugopala Gowda, JJ] Revocation of Trust - Held, The Trust or the author of the trust have no authority or jurisdiction to execute a fresh trust deed, after revoking the earlier trust deed. Any document, such as a deed of revocation or a fresh trust deed, which would purport to revoke the earlier trust deed and create a new trust, in the place of the earlier trust, are all of no consequence and is no more than a scrap of paper. It has no value. It is void ab initio and non est in the eye of law. Thus, in the absence of statutory provision conferring such right on the transferor to revoke the transfer, the transferor has not right in law, to exercise the power of revocation. Once the transfer of title in the immovable property passes on to the trustees and beneficiary, the author of the trust looses his right, title and interest to the said property. In other words, he ceases to have any right in the trust property, which is transferred and which is the subject matter of the trust. The author has no power to revoke, vary, or add to the trusts. The subsequent acts and conduct of the founder of the trust, cannot effect the trust, if there has already been a complete dedication. IF the trust had been really and validly created, any deviation by the founder of the trust or trustee from the declared purposes would amount only to breach of trust and would not detract from the declaration of trust. The subsequent conduct of the author of the trust, would not put an end to the trust itself. Therefore, once a valid trust is created, it is irrevocable. However, where a private trusts is created inter vivos, the settler has power to revoke the trust or to modify it, only if he has reserved such a power. In the case of a private trust created inter vivos, the settler can revoke or modify the trust, if all of the beneficiaries are ascertainable and are under no legal incapacity and consent. IF the conditions stipulated in Section 78 of the Trusts Act, 1882 is complied with, the trust can be revoked and not otherwise.
Key Points: - The trust created for the benefit of a Church is a public religious and charitable trust and not a private trust, as the Church is a fluctuating body of persons belonging to a particular religious denomination who form a section of the public. (!) (!) (!) (!) - A suit under Section 92 CPC is a special suit for protection of public rights in public trusts and charities; it presupposes the existence of a public trust of a religious or charitable character. (!) - To attract Section 92 CPC, the suit must relate to a trust created for public purposes of a charitable or religious nature, proceed on an allegation of breach of trust or necessity of Court directions, claim reliefs specified in the section, and be brought in a representative capacity for vindication of public rights, not private rights. (!) - Once a public, religious, and charitable trust is created by a non-testamentary instrument and property is vested in trustees, the author of the trust cannot revoke the trust; the trust is irrevocable. (!) - Any document purporting to revoke an earlier trust deed and create a new trust in its place is of no consequence, void ab initio, and non est in the eye of law. (!) - The power of revocation contained in Section 78 of the Indian Trust Act, 1882 applies only to private trusts and cannot be invoked to revoke a public trust. (!) - A suit against a trustee for following trust property or for an account of such property is not barred by any length of time under Section 10 of the Limitation Act, 1963. (!) (!) - Defendants in possession of trust properties under documents which are void ab initio are not entitled to continue in possession and must deliver the properties to the trustees for the benefit of the beneficiaries. (!) (!) - Where a person having no title as trustee takes possession of trust property, it amounts to breach of trust, as it is as much a breach for a person not entitled to act as trustee to meddle with trust property as for a properly appointed trustee not to manage the property. (!) (!) - The Court has discretion under Section 92 CPC to frame a scheme for administration of trust property and may reserve to itself the power to appoint or remove trustees as and when occasion arises. (!)
1. The appellants-plaintiffs have preferred this Regular First Appeal challenging the judgment and decree of the trial Court dismissing their suit. Respondents 1 to 3 have also preferred a Cross Objection challenging the finding of the trial Court on issue Nos.12, 21, 23 and additional issue No.6.
2. The suit file under Section 92 of CPC is for settling a scheme for the proper and due administration and management of the properties of the United Basel Mission Church in India, South Kanara and Coorg, in respect of the plaint A, B, C, D and E Schedule properties and for other consequential reliefs. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
PLEADING
3. The case of the plaintiffs is as under:-
The United Basel Mission Church in India of district of South Kanara and Coorg, for short, hereinafter referred to as ‘UBMC’, is fully evolved evangelical Protestant Christian Church. It is an autonomous administrative unit, independent of all external control and is governed by its own constitution known as “The Constitution of the United Basel Mission Church in India.” The said Constitution is in two parts. The first part is the Constitution and the second part is the Church Rules. The plaintiffs in the suit are interested in the Trust properties belonging to UBMC of South Kanara and Coorg and administered by defendant No.32. The United Basel Mission Church in India Trust Association as Trustee, for short, hereinafter referred to as the ‘Trust Association’. The Trust Association is a Trustee of UBMC. The plaintiffs are also interested in the proper and efficient management of both the religious and secular institutions, activities, assets and affairs of UBMC. Therefore, the suit is instituted for and on behalf of the said Trust and for the benefit of the numerous members of UBMC, who have some interest in the suit as the plaintiffs.
4. According to the plaint averments, the UBMC is a Presbyterian Church, fundamentally different in faith, doctrine, tradition practices and forms of worship from the Episcopal Church known by the name of the Church of South India, for short, hereinafter referred to as ‘CSI’, which was incorporated on 27.09.1947 by the Union of South India United Church, the South India Province of the Methodist Church and the Churches of the dioceses of Madras, Dornakal, Tinnevelly, Travancore and Cochin, in the Church of India, Burma and Ceylon. UBMC is fundamentally different from the CSI. UBMC has been consistently opposing the move initiated by certain interested parties, including the 30th defendant, the Evangelical Missionary Society in Basel (Basel Mission), for short, hereinafter referred to as ‘Basel Mission’, which had founded the UBMC to merge this Church in CSI. In spite of opposition to this merger, the interested persons in defendant No.28, i.e., the District Church Council of UBMC at its extraordinary meeting held on 09.05.1961, passed a resolution proposing the merger of the UBMC with the CSI. The said resolution was challenged in a representative suit in O.S.No.221/61 on the file of the Munsiff of Mangalore, filed by certain members of UBMC on behalf of the members of the UBMC for a declaration that this resolution was void, illegal and ultra vires the powers of the District Church Council under the Constitution UBMC in India. They also wanted a declaration that the said resolution is illegal and void as per the provisions of the Religious Societies Act, 1880 and in particular of Section 6 thereof and not valid and binding on the plaintiffs or other members of UBMC of South Kanara and Coorg. They also sought for permanent injunction restraining the defendants from implementing the impugned merger resolution. The order of temporary injunction was also sought. The defendants in the said suit gave an undertaking to the Court that they would not implement the impugned resolution during the pendency of the suit. The suit was dismissed on 27.0
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