Kerala High Court · 2009

ADV. SRI.S.ANANTHASUBRAMANIAN FOR R5 SRI.V.K.BALACHANDRAN FOR R5 SRI.G.SUBRAMANIAN FOR R5 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON 18/06/2009 DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 226 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of June, 2009. JUDGMENT Bhavadasan, J, First plaintiff in O.S. 289 of 1998 before the Principal Sub court, North Parur is the appellant. The trial court dismissed the suit. In appeal, the appellate court took the view that the suit falls within the ambit of Section 92 of the Code of Civil Procedure and hence the suit is not maintainable. The plaint was directed to be returned for presentation before the proper court.

2. Plaintiffs and defendants 2 to 11 are members of the first defendant Samooham. First plaintiff would say that the first defendant is a private trust constituted for the benefit of the Brahmins in the locality. Till 1995 the Samooham had no bye-law for its administration and management. The trust had extensive immovable properties, so also movables. It is pointed out that the fifth defendant had continued for a long time as Manager, conducted administration for a long time and he has not rendered the accounts for the period for which he was managing the trust. FAO. 226/2005. 2 Second defendant is incompetent to continue as Manager of the School run by the trust. It was pointed out that the administration and management of the trust was not carried on properly and it is detrimental to the trust. On the basis of these allegations a suit was laid seeking conducting of a General Body Meeting, to remove the second defendant from the post of Manager of the School run by the trust and to direct the fifth defendant to submit the accounts during the period during which he was in administration of the trust, that is, from 1974 to

3. The suit was resisted by the defendants. In a joint written statement filed by defendants 1, 2, 4 and 6 to 9, it is pointed out that the suit is an ill motivated one and lacks bonafides. According to them, the suit falls within the ambit of Section 92 CPC and since leave has not been obtained, the suit is not maintainable. The administration and management of the Samooham are done in accordance with the bye-law and the affairs of the Samooham are being carried on in a proper manner. The management and administration of the Samooham is vested in a governing body and a committee elected by the general FAO. 226/2005. 3 body every year. The allegations regarding the trust are incorrect and false. The fifth defendant is no longer in the helm of affairs and there is no incompetency for the second defendant to be the Manager of the School. According to these defendants the suit is due to personal vendetta and does not deserve consideration at all.

4. In the separate written statement filed by defendants 3 and 10 they supported the other defendants. They pointed out that they had tendered their resignation from the governing body. In the separate written statements filed by the fifth defendant, he pointed out that the suit is not maintainable.

5. Before the trial court the plaintiffs had P.W.1 examined and Exts.A1 to A22 marked. The defendants did not adduce any evidence at all.

6. Even though several issues were raised by the court below, the trial court dismissed the suit on the ground that the suit was not maintainable for reasons stated in the judgment. Even though an issue regarding the maintainability of the suit was raised, that was not considered and answered by the trial court. FAO. 226/2005. 4

7. In appeal, the appellate court adverted to these aspects and considered whether the suit is hit by Section 92 of the CPC. The court held that it is hit by Section 92 CPC and thereafter directed that the plaint be returned for presentation before the proper court. It is the said order that is assailed in this appeal.

8. Learned counsel appearing for the appellant contended that the court below was not justified in coming to the conclusion that the first defendant is a public trust. According to learned counsel, the trust is a private one intended for the benefit of the members of Brahmin community and nine families are at the helm of its affairs. According to learned counsel, the test to ascertain whether the trust is a public or a private one is to ascertain whether the beneficiaries are ascertainable body or a fluctuating one. Viewed from that angle, it is pointed out that the beneficiaries are ascertainable at any given point of time and therefore the trust is a private one and Section 92 CPC has no application.

9. Before going into the above question, one aspect may be noticed. The administration and management of the first defendant is FAO. 226/2005. 5 now being carried on in accordance with the bye-law framed in 1994. It provides for the General Body Meeting and election of Governing Body. There is no specific averment in the plaint that the General Body Meeting has not been conducted for a particular year and there are any laches on the part of the Governing Body or the person concerned to convene the General Body Meeting. As of now, the appellants have no complaint that the administration and management of the trust is being carried on in violation of the provisions in the bye- law.

10. The second relief claimed in the plaint was to remove the second defendant from the post of Manager of the School. Even though it is stated in the plaint that he is disqualified to hold the post, there was no evidence adduced by the plaintiff to show that his claim was justified. No particular instance or act or conduct on the part of the second defendant is pointed out either in the pleading or in the evidence of plaintiff to indicate that the second defendant is disqualified to hold the post of Manager of the School run by the Trust. FAO. 226/2005. 6

11. The third relief prayed for is to direct the fifth defendant to present the accounts for the period from March, 1974 to March, 1998. As regards the above relief, no details whatsoever are given in the plaint or in the evidence given by P.W.1. It is simply averred in the plaint that the fifth defendant has been in management for a long time and that he has not submitted his accounts. The bye- law namely Ext.A1 clearly provides for submission of the accounts and other details regarding the finance of the trust. The records produced by the plaintiff show that the governing body has been considering this issue and has made stipulations for the presentation of the accounts. The appellant can have no case that he is not bound by the decisions of the governing body. Even though the appellant has pointed out that the trust owned extensive properties and some having sold away, no details whatsoever have been given in the plaint or in his evidence. On going through the evidence, it is seen that at one point of time the appellant as well as the fifth defendant were joint Managers and were administering and managing the affairs of the trust. It is seen that there was some ill feeling between the two and in fact the appellant was FAO. 226/2005. 7 directed by the Governing Body to submit the accounts. It was at that point of time that the appellant has come forward with this suit. As already mentioned, no details whatsoever are given regarding the accounts by the appellant except a very bald statement in the plaint that the period during which the fifth defendant was in the helm of affairs, the accounts have not been submitted.

12. No materials whatsoever are produced either in the plaint or in the evidence of P.W.1 to come to the conclusion that the fifth defendant had either mismanaged the affairs of the trust or that he had made up false accounts or manipulated the same. In the absence of any such material to show that there was a deliberate act on the part of the fifth defendant and also to show that he was in charge of the affairs of the trust from 1974 to 1998, relief sought for as against him could not be granted.

13. Apart from the above facts, the finding of the court below that the first defendant trust is a public one is also fully justified. A reading of the bye-law will clearly reveal this fact. In fact the first defendant Samooham in its written statement filed along with FAO. 226/2005. 8 some of the other defendants have clearly stated that the first defendant is a public trust and the suit is covered by Section 92 of the Code of Civil Procedure. As already pointed out, Ext.A1 bye-law will clearly show that the Samooham was constituted mainly for the amelioration of the members of the Brahmin community, but the beneficiaries of its activities are the public. Even assuming that the beneficiaries were only members of a community, still one fails to understand how the trust ceases to be a public one. Of course, nine family members are conferred with the power of administration of the trust. But that does not mean that the trust is a private one.

14. The purpose of Section 92 CPC may be noted at this juncture. The object is to avoid unnecessary suits and litigation with regard to a public trust so as to unsettle its affairs. It is a protection given to the public trust. It cannot be disputed in this case that the relief sought for in the plaint falls within the ambit of Section 92 of Code of Civil Procedure. It may be that the private trust can indulge in public functions. But in the case on hand, the very object and purpose of the trust as it is discernible from Ext.A1 is for the benefit of the FAO. 226/2005. 9 public, even though the main purpose and object is the amelioration of the members of the Brahmin community. The appellate court has considered this matter in detail and has come to the conclusion that the first defendant is a public trust. As already mentioned, even according to the contesting defendant the Samooham is a public trust.

15. As far as Kerala is concerned, apart from the principal District Court of original jurisdiction, the subordinate court is also empowered to entertain and try suits falling within the ambit of Section 92 CPC. When it was found that plaintiff had failed to comply with the pre-requisite in instituting a suit under Section 92 CPC, the appellate court ought to have dismissed the suit itself. There was no justification in directing the return of the plaint for presentation before the proper court. It may be noticed here that to institute a suit seeking relief under Section 92 prior leave of the Court or the Advocate General as the case may be has to be obtained. That has admittedly not been done in the present case. Even assuming that a suit against the public trust can be allowed to institute without recourse to Section 92, in the case on hand no materials whatsoever are produced by the plaintiff to FAO. 226/2005. 10 substantiate his allegations. Thus viewed from any angle, the suit should fail. Accordingly, the order of the court below to return the plaint for presentation before the proper court is set aside and the suit stands dismissed confirming the judgment and decree of the trial court. There will be no order as to costs. P.R. Raman, Judge P. Bhavadasan, Judge sb.