Kerala High Court · 2009

CRP.436/09 2. SAJEENA.K., D/O.KHASIM, SAJEENA MANZIL, PUTHUKURICHY P.O., THIRUVANANTHAPURAM. 3. MUHAMMED BASHEER, S/O.MUHAMMED HANEEFA, MAGARIB HOUSE, KADUVAKUZHY, ARYANADU P.O. 4. V.P.NEPOLIAN, S/O.V.P.PATHROSE, KODIKKATTIL, PUTHUKURICHY P.O., THIRUVANANTHAPURAM, NOW RESIDING AT T.C.14/1546, ANITHA SANKAR ROAD, KANNAMOOLA, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 5. SOFIA BEEVI, W/O.SUBAIR, THONALI VEEDU, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM. ADV. SRI.S.CHANDRASENAN FOR R1-4 SRI.B.RAJEEV KOYICKAL FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON 13/11/2009 PASSED THE FOLLOWING: ORDER ON I.A.NO.2334 OF 2009 IN C.R.P.NO.436 OF 2009AMEDISMISSED.13.11.2009 SD/- SATHEESACHANDRAN, JUDGE/TRUE COPY/P.A. TO JUDGE S.S.SATHEESACHANDRAN, J.-------------------------------C.R.P.NO.436 OF 2009 (A)----------------------------------- Dated this the 13th day of November, 2009O R D E RThe revision is directed against the order passed by thelearned Additional District Judge-II, Thiruvananthapuramgranting leave to respondents 1 to 4 to institute a suit underSection 92 of the Code of Civil Procedure in respect of the1st petitioner, which is stated to be a public charitable trust.On a previous occasion, the leave granted by the court belowaccording permission to sue under Section 92 of the CPC hasbeen challenged before this Court, and, then, noticing thatmeaningful opportunity had not been extended to thecontesting respondents in the original petition, the order wasset aside with direction to dispose the application inaccordance with law. After such remission, the court belowafter hearing both sides, passed the impugned order, in which,some documents were also marked – Exts.A1 to A13 for thepetitioners and Exts.B1 to B3 for the counter petitioners in the CRP.436/092O.P. Among the materials produced, Ext.A1 was the copy ofthe trust deed and that alone, as seen from the impugnedorder, was taken into account with reference to the facts andcircumstances presented and the principles applicable indeciding the question of leave. 2. Respondents 1 to 4 are the petitioners in the originalpetition. Claiming to be the well wishers and beneficiaries ofthe trust, the 1st respondent in the O.P., and imputingmismanagement, malpractices and misappropriation of thetrust funds by the respondents 3 to 6, who are presently at thehelm of affairs of the trust, the petition was filed seekingvarious reliefs viz. declaration that removal of the two originaltrustees by way of a subsequent registered deed is illegal andviolative of the objects envisaged under the trust, that thesubsequent deeds so created are null and void, preparation ofa scheme for the trust, appointment of new trustee,prohibitory orders against respondents 3 to 6 from alienatingthe trust properties etc. The respondents 1 and 3 to 6, CRP.436/093present revision petitioners, challenged the maintainability ofthe petition filing objections, in which, they contended that thepetitioners in the O.P. are incompetent to apply for leave tosue for the reliefs canvassed and also that the proceedingsinitiated are mala fide and it is at the instance of the2nd respondent in the O.P., who had previously filed a suitagainst the trust challenging her removal from the board oftrustees, which was later withdrawn after dismissal of the I.A.moved for injunction. Some of the reliefs canvassed in thepetition, it was contended, are outside the scope and ambit ofa suit to be instituted with leave under Section 92 of the CPC.3. The learned counsel for the revision petitionersassailed the order of the court below contending thatrespondents 1 to 4, the petitioners in the O.P., are not entitledto seek the reliefs claimed in relation with the trust and theyare incompetent to apply and obtain leave to institute the suitas contemplated under Section 92 of the CPC in respect of thetrust. In the O.P, other than a bald allegation that these CRP.436/094respondents are “the well wishers and beneficiaries of the 1stcounter petitioner trust”, there is nothing more to show theirinterest in the trust, and, in fact according to the counsel, theyare total strangers to the trust. A mere allegation that theyare well wishers and beneficiaries in the petition is insufficientto show the interest of the petitioners, which is a primaryrequisite for grant of leave under Section 92 of the CPC,according to the counsel. Another ground of attack canvassedby the counsel is that the petition has been filed at theinstance of the 5th respondent, who had previously filed a suitagainst the trust, but later, withdrew that case when theappeal preferred by her against the dismissal of herapplication for injunction had been confirmed by the appellatecourt. Even in her application of withdrawal of the suit, shehad cited the filing of the present O.P. to seek permission forsuch withdrawal, is the submission of the counsel to contendthat respondents 1 to 4 have filed the present O.P. at theinstance of the 5th respondent after she had failed to getrestrictive orders against the present revision CRP.436/095petitioners/respondents 3 to 6, in the management of the1st petitioner, the trust. The court below has not appreciatedin the proper perspective the challenge raised by thesepetitioners (respondents 3 to 6) that the original petition hasbeen filed to vindicate the private rights of the petitioners andalso that of the 5th respondent, and not for prosecution of anypublic rights in relation to the public trust, is the submissionof the counsel to assail the permission granted by the courtbelow to the petitioners in the O.P. to institute the suit underSection 92 of the CPC in respect of the reliefs canvassed. Onthe other hand, the learned counsel appearing for respondents1 to 4 submitted that the leave had been granted by the courtbelow after meticulously examining the questions involved andfinding that there is no merit in any of the objectionscanvassed by the revision petitioners/respondents 3 to 6 in theoriginal petition opposing the application for leave to sue forthe reliefs in respect of the public trust. Ext.A1 deed disclosein unmistakable terms that a public trust had been created forto perpetuate the memory of the settler's mother for CRP.436/096establishing educational institutions, orphanages, housingcolonies to the poor and other institutions for charitablepurposes. But, later, two other deeds were created so as tonullify the objects for which the trust was created and some ofthe trustees had been removed illegally from the managementof the trust, submits the counsel. In the petition, theallegation of misappropriation, mismanagement by the presenttrustees and the need for framing of a scheme are alsospecifically stated to substantiate the permission sought for toinstitute a suit to seek the reliefs claimed in respect of thesubject matter, the public trust. Petitioners in the O.P. arepermanent residents in the locality belonging to a minoritycommunity, for the benefit of the weaker sections thereof, thetrust had been created, and so much so, they have substantialinterest in the welfare of the trust entitling them to seek forpermission to sue for the reliefs, is the submission of thecounsel. Previous suit filed by the 5th respondent in respect ofthe trust no way affect the right of the present petitioners nordoes it indicate that the permission sought by them is to CRP.436/097vindicate the private rights of the 5th respondent, is the furthersubmission of the counsel. The learned counsel for the5th respondent supported the contentions raised by therespondents 1 to 4 asserting that there is no infirmity in theorder passed by the learned District Judge in grantingpermission to respondents 1 to 4/petitioners in the O.P. toinstitute the suit for the reliefs claimed in respect of the trust.4. The learned District Judge granted leave to thepetitioners in the O.P. to sue for the reliefs claimed holdingthat the challenge raised that the proceedings had beeninitiated to vindicate the personal interest of the petitionerscannot be accepted. That finding, in the given facts of thecase, on the basis of the materials tendered, which no doubt,was formed for the limited purpose as to whether permissioncan be granted to sue for the reliefs canvassed under Section92 of the CPC in respect of a public trust, cannot be foundfault with solely for the reason that the 5th respondent hadinstituted a previous suit impeaching her removal as a trustee CRP.436/098from the management of the trust. Ext.A1 trust deedprima facie indicate that a public charitable trust had beenconstituted by that settler for the objects envisaged, theupliftment of the weaker sections of minority communities inand around Puthukurichy and Kazhakuttom, by establishingeducational institutions, orphanages, housing colonies etc. Byway of subsequent deeds, there has been blatant failure of theobjects of the trust and there is also misappropriation andmismanagement by the present trustees, is the case projectedby the petitioners in the original petition to seek for the reliefto sue for the reliefs in respect of the trust. The first reliefcanvassed in the petition is outside the scope of a suit underSection 92 of the CPC, in respect of which only the reliefscovered under 'a' to 'h' of that Section are permissible, byitself is not a sufficient ground to decline permission wheresome of the other reliefs canvassed fall under that section.But the larger question remains whether the petitioners haveany interest in the trust. True, they need not show 'a directinterest', but, their interest in the trust should be real, CRP.436/099substantial and existing. Petitioners are members of theminority community residing at the places in which the trustcarries its objectives or envisages of putting up institutions forthe upliftment of the weaker sections of that community, is notsufficient to show that they have an interest in the trust in thepetition. As rightly contended by the learned counsel for therespondents 3 to 6, nothing more is stated in the petitionother than that they are 'well wishers and beneficiaries' of thetrust. The learned District Judge has not adverted to thequestion whether the petitioners have any interest in the trustthough it was disputed by respondents 3 to 6. The findingentered that the suit has not been filed at the instance of the5th respondent, refuting the contentions of the respondents3 to 6 in the original petition that permission is sought tovindicate the personal interest of the petitioners in the O.P.,cannot be considered as a finding that the petitioners havesatisfied the requirement that they have 'an interest in thetrust'. Interest claimed by the petitioners in the trust, which isdisputed by the respondents 3 to 6 must be shown to be an CRP.436/0910existing interest and not a mere contingency. Petitioners aremembers of the minority community and are residents at theplaces in which the trust property is situated or its institutionsare established and a mere statement that they arebeneficiaries and well wishers of the trust in the petition, isnot sufficient to show that they are persons having an interestin the trust. In order to ascertain the real interest of thepetitioners in the public trust, it may be necessary to examinewhether they have sought permission to sue to vindicate theright of the public to seek a declaration of their individual orpersonal rights or the individual or personal rights of anyother person or persons in whom they are interested. Theinterest of the petitioners seeking permission should be onefor vindicating a public right in the trust, and so much so, inexamining the interest of the petitioners, the court has to gobeyond the relief and to focus on the purpose for which thesuit is filed. That has been so held by the apex court inVidyodaya Trust v. Mohan Prasad (2008 (2) KLT 68(SC)). As already indicated that a mere statement that the CRP.436/0911petitioners are well wishers and beneficiaries of the trustwithout any thing more, is not sufficient to show that theyhave any interest in the trust to obtain leave for instituting asuit for the relief under Section 92 of the CPC. In NarayanaPillai Gopala Pillai v. Smt. Jyothi Prakashini Devi andothers (1991 (2) KLT 535), it has been held by this Courtthat the question whether a person has a real, substantive andexisting interest in a particular trust so as to maintain anaction under Section 92 of the CPC has to be determinedfactually on acceptable evidence and also with reference tothe trust in relation to which the suit is instituted. In case,the assertion of the petitioners that they are beneficiaries andwell wishers of the trust as averred in their petition is taken assufficient to show their interest in the trust to seek permissionto sue, then, needless to point out, any one in the localitywhere the trust operates, who are members of the minoritycommunity, can come forward and seek permission to institutesuits against the trust. Such a situation is wholly undesirable.Object of Section 92 of the CPC is to prevent people from CRP.436/0912interfering with the administration of the public trust of acharitable or religious nature by instituting frivolous suits.Whether petitioners in the original petition has genuine,substantial and existing interest in the trust entitling them toseek permission to sue to protect the interest of the trustdeserve to be examined before they are permitted to institutethe suit for the reliefs under Section 92 of the CPC especiallywhen the trustees, respondents 3 to 6 have disputed theirinterest contending that the suit has been filed to vindicatethe personal rights and also that of the 5th respondent, whohad previously failed in her attempts to challenge her removalfrom the Board of trustees. The order passed by the learnedDistrict Judge granting permission to the petitioners to sueunder Section 92 of the CPC is revoked directing that court toextent an opportunity to the petitioners to produce evidenceshowing interest substantiating their existing interest in thetrust to sue for the reliefs claimed in respect of the trust. Therespondents in the original petition shall also be given anopportunity to give rebuttal evidence in the enquiry on the CRP.436/0913limited question involved. The court below, on the materialsproduced, shall examine the question afresh and passappropriate orders on the question of leave applied for by thepetitioners in the original petition. Parties shall appearbefore the court below on 23.11.2009, and the court below isdirected to complete the enquiry on the question of leavewithin a period of three months from the date of appearanceof the parties as indicated above. Revision is accordinglydisposed. S.S.SATHEESACHANDRAN JUDGEprp