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2002 Supreme(Kar) 91
IN THE HIGH COURT OF KARNATAKA
Hon'ble Justice V.G. Sabhahit, J.
Lakshminarasimaiah and another - Appellant
Vs.
Kusuma Adiramaiah Setty and Susheelamma Trust and others - Respondent
Miscellaneous First Appeal No. 3529 of 1997
Decided on : 04-02-2002
Advocate Appeared:
Mr. V. Narayanaswamy
Mr. C.K. Jayachandra Shetty, R.K. Sridhara Murthy, N. Sharada, P. Sreenivasaiah
The maintainability of a suit under Section 92 of the Code of Civil Procedure depends upon the allegations in the plaint and presupposes the existence of a public trust of a religious or charitable character, proceeding only on the allegation of a breach of trust or the necessity of directions from the Court for the administration of the trust.
Headnote:
Trust Deed - Suit Maintainability - Section 92 of Code of Civil Procedure - [Section 92 of Code of Civil Procedure] - The court discussed the scope of enquiry while granting leave under Section 92(1) of the Code of Civil Procedure and emphasized that the maintainability of the suit under Section 92 depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. The court also highlighted that a suit under Section 92 presupposes the existence of a public trust of a religious or charitable character and can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration of the trust. The court set aside the order dismissing the suit and restored the case to the Trial Court with a direction to dispose of the same in accordance with the principles laid down by the Hon'ble Supreme Court.
Fact of the Case:
The Plaintiffs filed a suit seeking various reliefs against the Defendants, alleging misappropriation of trust properties and breach of trust. They also filed an application seeking leave to file a suit under Section 92 of the Code of Civil Procedure. The Defendants resisted the application, contending that the alleged trust deed was in the nature of a Will and the properties had been alienated, making the suit itself not maintainable.
Finding of the Court:
The court held that the scope of enquiry while granting leave under Section 92(1) of the Code of Civil Procedure is limited and depends upon the allegations in the plaint. It emphasized that a suit under Section 92 presupposes the existence of a public trust of a religious or charitable character and can proceed only on the allegation of a breach of trust or the necessity of directions from the Court for the administration of the trust. The court set aside the order dismissing the suit and restored the case to the Trial Court with a direction to dispose of the same in accordance with the principles laid down by the Hon'ble Supreme Court.
Issues: The issues before the court were whether the suit itself is maintainable under Section 92 of the Code of Civil Procedure and whether the impugned order calls for interference in the appeal.
Ratio Decidendi: The court emphasized that the maintainability of the suit under Section 92 depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. It also highlighted that a suit under Section 92 presupposes the existence of a public trust of a religious or charitable character and can proceed only on the allegation of a breach of trust or the necessity of directions from the Court for the administration of the trust.
Final Decision: The appeal was allowed, the order dismissing the suit was set aside, and the case was restored to the Trial Court with a direction to dispose of the same in accordance with the principles laid down by the Hon'ble Supreme Court.
V.G. Sabhahit, J.--This appeal by the Plaintiffs in Miscellaneous No. 853 of 1994 is directed against the order dated 22.3.1997 passed by the Principal City Civil Judge, Bangalore rejecting the application filed seeking leave to file suit under Section 92 of Code of Civil Procedure.
2. The facts of the case in brief leading up to this appeal are as follows:
The parties would be referred to with reference to their rank before the Trial Court. The Plaintiffs filed the suit on the file of the Principal City Civil Judge against the Defendants for the following reliefs;
a) Removing the Trustees of the first Defendant namely the Defendants and any other trustees who may be put forth by them during the trial of this suit;
b) Appoint new trustees vesting schedule property in such trustees;
c) Direct the Defendants to deliver possession of all the trust property in their possession to the trustees so appointed by this Hon'ble Court and direct them to render accounts; and
d) Hold an enquiry into the conduct of the Defendants as trustees and recover the monies mis appropriated by them and take action for the breach of trust in accordance with Indian Penal Code and commit them to imprisonment according to Indian Penal Code;
e) Settle a scheme for the first Defendant trust; and
f) Grant such other reliefs, as the nature of the case may require, and also award cost of this proceedings and direct such other reliefs, suitable action against the Defendants and others whoever is responsible and pass such further other orders, as this Hon'ble Court may deem fit, in the interest of justice and equity.
It is averred in the plaint that the first Defendant is a public charitable trust created under registered trust deed of late Smt. Susheelamma with the object of converting the schedule property into a Maternity Home and to do other charitable services. It is a public charitable trust. The entire public in general, irrespective of religion, caste etc. are the beneficiaries. It is further averred that the benefit is not confined upon the person belonging to a particular caste. It is further averred that under registered trust deed dated 19.6.1958 a trust was created by Smt. Susheelamma appointing trustees for the execution of the objects of the Trust and she assumed charge as the Managing Trustee under the said registered trust deed and that since there is mis appropriation of the properties of the trust and the trustees are not acting in consonance with the object of the trust the suit is filed for the above reliefs. Along with the suit an application was filed seeking leave to file a suit under Section 92 of the Code of Civil Procedure.
3. The said application was resisted by the Defendants contending that the alleged trust deed dated 19.6.1958 was in the nature of a Will and the same was modified by deed dated 22.12.1977 and all the properties mentioned in the trust deed have been alienated by the person founding the trust and wherefore the suit itself is not maintainable and wherefore the applicant is not entitled to leave to file the suit.
4. The learned Principal City Civil Judge by his order dated 22.3.1997 upheld the contentions of the Defendants and held that the suit itself is not maintainable as the properties which are the subject matter of the trust under deed dated 19.6.1958 have been alienated by Smt. Susheelamma and further held that the document is in the nature of a Will and does not constitute a public trust and wherefore when the suit itself is not maintainable, leave to prefer the suit cannot be granted and accordingly dismissed the application and consequently the suit. Being aggrieved by the said order the Plaintiffs have preferred this appeal.
5. During the pendency of this appeal Respondent-1A died. After the death of Respondent-1A his successor has been impleaded and one K.A. Ramesh Kumar, Joint Secretary is impleaded as Respondent No. 3 to the appeal.
6. I have heard the learned Counsel appearing for the Appellants and the learn
