M.JOY VARGHESE v. VYAPARABHAVAN TRUST

CMA NO.2 OF 2002:-2-: 3. T.A.MAJEED,PULLATHUNDIL PARAMBIL NEAR P.J.ANTONY GROUND,PACHALAM,COCHIN-12 BY ADV. SRI.C.P.MOHAMMED NIAS SRI.A.M.SHAFFIQUE SRI.V.G.ARUN SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & V.K.MOHANAN, JJ.---------------------------------------------C.M.A.No. 2 of 2002--------------------------------------------- Dated this the 2nd day of November, 2007J U D G M E N TRaman,J:This appeal is filed against the order decliningleave to institute the suit under Section 92 of the Code ofCivil Procedure filed by the petitioners.2.The appellants/plaintiffs have filed the suitunder Section 92 of the Code of Criminal Procedureseeking for a declaration that the alleged sale deeddtd.17.11.1999, registered as document No.904 of 1999 ofthe Sub Registrar's Office, Kozhikode and executed by thesecond defendant in favour of the third defendant as void,inoperative, unsustainable and unenforceable and as notvalid and binding on the plaint schedule property or anyportion of the same, the plaintiffs or others who areinterested in the first defendant Trust including asbeneficiaries of the trust and to set aside the sale deed andfor consequential injunction and other incidental reliefs. CMA NO.2 OF 2002:-2-:3.From the reliefs sought for, there is no doubtthat the main relief is seeking to set aside the documentand other reliefs are incidental thereto. The courtbelow, after considering the reliefs sought for and afterplacing reliance on the various decisions cited by bothsides, came to the conclusion that the relief as suchprayed in the complaint does not come within the ambitof Section 92 (a) to (h) of the Code of Civil Procedureand accordingly, declined to grant leave, against whichthe appeal is filed.4.The Apex Court in Bishwanath v. RadhaBallabhji (AIR 1967 SC 1044) held as follows:-“7. It is settled law that to invokeS.92 of the Code of Civil Procedure, 3conditions have to be satisfied; namely, (i)the trust is created for public purposes ofa charitable or religious nature; (ii) therewas a breach of trust or a direction ofCourt is necessary in the administration ofsuch a trust; and (iii) the relief claimed isone or other of the reliefs enumeratedtherein. If any of the 3 conditions is notsatisfied, the suit falls outside the scope ofthe said section. A suit by an idol for adeclaration of its title to property and forpossession of the same from thedefendant, who is in possession thereof CMA NO.2 OF 2002:-3-:under a void alienation, is not one of thereliefs found in S.92 of the code of CivilProcedure. That a suit for declarationthat a property belongs to a trust in heldto fall outside the scope of S.92 of theCode of Civil Procedure by the Privycouncil in Abdur Rahim v. Abu MahomedBarkat Ali, 55 Ind App 96: (AIR 1928 PC16), and by this court in Pragdasji GuruBhagwandasji v. Iswarlalbhai Narsibhai,1952 SCR 513: (AIR 1952 SC 143), on theground that a relief for declaration is notone of the reliefs enumerated in S.92 ofthe Code of Civil Procedure. So too forthe same reason a suit for a declarationthat certain properties belong to a trustand for possession thereof from thealienee has also been held to be notcovered by the provisions of S.92 of theCode of Civil Procedure: See MukhdaMannudas Bairagi v. Chagan KisanBhawasar, ILR (1957) Bom 809: (AIR 1959Bom 491). Other decisions have reachedthe same result on a different ground,namely, that such a suit is one for theenforcement of a private right. It washeld that a suit by an idol as a juristicperson against persons who interferedunlawfully with the property of the idolwas a suit for enforcement of its privateright and was, therefore, not a suit towhich S.92 of the Code of Civil Procedureapplied: See (Darshan Lal v. ShibjiMaharaj Birajman, ILR 45 All 215: (AIR1923 All 120); and Madhavrao Andandraov. Shri Omkareshvar Ghat, 81 Bom LR192: (AIR 1929 Bom 153). The presentsuit is filed by the idol for possession of itsproperty from the person who is in illegal CMA NO.2 OF 2002:-4-:possession thereof and, therefore, it is asuit by the idol to enforce its private right.The suit also is for a declaration of theplaintiff's title and for possession thereofand is, therefore, not a suit for one of thereliefs mentioned in S.92 of the Code ofCivil Procedure. In either view, this is asuit outside the purview of S.92 of the saidCode and, therefore, the said section isnot a bar to its maintainability.” 5.There cannot be any doubt, therefore, thatunless the appellant satisfies that the relief sought forwill also fall within the ambit of (a) to (h) of Section 92,no relief as such could be granted under Section 92,since all the three conditions mentioned in Section 92including the relief as mentioned above should besatisfied for maintaining a suit in the nature mentionedunder Section 92 and to seek any leave thereof. In thatcase also, the suit was instituted by the deityrepresented by his next friend against the appellantstherein seeking for a declaration that the deity was theproprietor of the house, for possession thereof and formesne profits. The case of the plaintiff in that suit (thefirst respondent therein) was that the second defendant CMA NO.2 OF 2002:-5-:to the suit who is the Manager of the deity executed asale deed, conveying the property to the first defendantto the suit, for a consideration of Rs.10,000/- and thatthe sale, not being for necessity or for the benefit of theidol, was not binding on the deity. It was consideringthe said relief, the apex court held that the suit fordeclaration that the property belongs to a trust, will falloutside the scope of 92 of the C.P.C.6.Even though it was contended by the learnedcounsel appearing for the appellant that the relief assought for may fall under the residuary clause (h) ofSection 92, it has to be held that the said clause shouldbe read in conjunction with the other clauses (a) to (g)and not in isolation thereof. In a decision reported inSt.John's Jacobite Syrian Church v. Fr.JohnMoolamattom (2005(1) KLT 307), one of us (PRR(J))dealt with the question regarding the interpretation ofthe words 'further and other reliefs' under head (h) andafter referring to the various case laws on the subject, itwas held that the relief sought for in the said case did CMA NO.2 OF 2002:-6-:not fall under head (h) as it is not in consonance with thespecific heads (a) to (g). In the result, there is no meritin this appeal. Accordingly, the same is dismissed.7.Learned counsel appearing for the appellanthowever prayed that the dismissal of the suit shall notprejudicially affect his right if any to take appropriateproceedings with proper relief. Needless to say, theleave was declined because the prayer as such made inthe plaint does not fall under (a) to (h) of Section 92.That being the case, if the petitioner is otherwiseentitled to maintain an application under Section 92bringing it within its scope and ambit, necessarily thepresent proceedings will not stand in his way. P.R.RAMAN, Judge V.K.MOHANAN,Mbs/ Judge CMA NO.2 OF 2002:-7-: P.R.RAMAN & V.K.MOHANAN, J.-------------------------------------------- CMA.NO. 2 OF 2002 ----------------------------------------- J U D G M E N TDATED: 2-11-2007 CMA NO.2 OF 2002:-8-: