Amrithakumari v. Ramanathan — 1998 DIGILAW 312 (KER)

Judgment :- S. Sankarasubban, J. This Civil Revision Petition is filed against the order in 1. A. No. 2868/96 in O.S. No. 7/96 of the 1st Additional District Court, Thrissur. By the above interlocutory order, the Court below gave leave for respondents 1 to 3 to institute suit under S.92 of the Code of Civil Procedure. Petitioners in this Civil Revision Petition are respondents 1 and 2. Notice to respondents 4 to 16 has not been served. But in the facts of this case it is not necessary to await return of notice, because they have not challenged the order in I. A. No. 2868/96. The application was filed for the grant of leave to institute a suit against the Perinjanam High School, which is a public trust and to recover the plaint schedule properties with mesne profit after declaring that all alienations made with regard to the trust properties are voidable and to set aside the same. It also prayed for removing the present trustees for their misdeeds and maldeeds and misappropriation of funds, for rendition of accounts and for other reliefs. 2. Some prominent persons of Perinjanam who wanted to spread education and do other social and community activities formed themselves as sponsors for registering a committee under Act XXI of 18 60 and applied for registration of a society for doing charitable work. The Registrar of Joint Stock Companies registered the society and gave a certificate of Registration as No. 11 of 1944. The seven sponsors continued as members of the Managing Committee till 1953. The founder committee President was V.K. Martian Chohan. After his death, a meeting was held on 29.1.1954 with one Sreenivasan in the presidential chair. Sreenivasan is the son of founder president V.K. Maman Chohan. The committee has admitted that the school is a charitable public trust. The aforesaid Sreenivasan, his wife the first defendant and the mother of Sreenivasan executed a deed of trust in 1958 as No. 386 of 1958 giving properties mentioned therein as endowments for the proper maintenance and up-keep of the school. The whole of 'B' schedule properties were endowed to the school. The income from the trust properties should be mainly used for the proper up-keep of the school and some help should be given for meeting the expenses of yearly festivals of their temple. The whole of 'B' schedule properties were endowed to the school. The income from the trust properties should be mainly used for the proper up-keep of the school and some help should be given for meeting the expenses of yearly festivals of their temple. The other trustees had released of their rights over the properties in favour of the trust. There are conditions in the trust deed under which it has been made clear that the properties encumbered for the purpose of the trust. But the allegation made in the plaint is that contrary to the conditions in the trust deed, the properties were alienated against the interest of the trust. The properties were detailed in the plaint. There is a prayer for settling out the same. They also prayed for laying out of the scheme for administration of the trust. Accounts of the trust were not given by respondents 1 to 3. 3. The present petitioners filed objections to the leave petition. The main objection was that even though the said Sreenivasan would have created the trust with regard to the properties, the school is being conducted by a society registered under the Societies Registration Act. Hence if at all any suit can be filed, it can be filed only in complying with the Societies Registration Act. Further, it was contended that since there was a prayer for declaring the Perinjanam High School as a public trust, a suit under S.92 of the Code of Civil Procedure was not maintainable. They also denied that there was any alienation contrary to the directions in the trust deed. The lower court after hearing both parties granted leave. It is against that the present revision is filed. 4. Sri. S. Ananthasubrahmanian, learned counsel for the petitioners attacked the order of the Court below. According to him, the order is vitiated on the following counts: The first contention is that in so far as there is a prayer for declaration that the Perinjanam school is a public trust, such a suit will not be maintainable within the purview of S.92 of the Code of Civil Procedure. The second contention is that it is admitted that the school is being managed by a committee constituted under the Societies Registration Act. The second contention is that it is admitted that the school is being managed by a committee constituted under the Societies Registration Act. Hence, it cannot be said that the school is the trust property and proceedings can be taken only as per the provisions of the Societies Registration Act. Third contention raised is that there is a procedural irregularity in as much as the petition for granting leave and the plaint were filed together in the court below. The details are stated in the plaint. As a matter of fact, the time for filing the plaint comes only later, after the leave is granted. The pleadings are to be contained in the petition for leave. 5. I heard counsel for the petitioners and the respondents. Regarding the first contention that since there is a prayer for declaration, the suit under S.92 of the Code of Civil Procedure cannot be entrusted, cannot be accepted. This question came up for consideration in the Bombay High Court in the decision reported in Chiranjilal Ramachandra Loyalka & Ors. v. L.I.C. of India representing Neptune Assurance Co. Ltd. - AIR 1959 Bombay 396. The Division Bench consisting of Chagla CJ. and S.T. Desai, J. considered this question and held as follows: "Although a suit for a declaration that a certain property appertains to a religious trust lies that the trust does exist might be made as ancillary to the main relief claimed under the Section if the plaintiff is held entitled to it. Where therefore, the declaration sought by the plaintiffs in a suit under S.92 is either unnecessary or is merely incidental to their obtaining the necessary reliefs under the Section, it cannot be said of the suit that by reason of the fact that a declaration with regard to the properties being dedicated for purpose of religious and charitable nature was sought, it changed the nature of the suit and the suit ceased to be a representative suit under S.92". Hence, I agree with the judgment of the Division Bench and hold that merely because the suit contains a declaratory relief, it will not take it out of S.92. 6. Hence, I agree with the judgment of the Division Bench and hold that merely because the suit contains a declaratory relief, it will not take it out of S.92. 6. The next contention is with regard to the question whether the Perinjanam school is a public trust, because it was formed as a society registered under the Societies Registration Act and in so far as such society is concerned, suits can be instituted only in accordance with certain conditions under the Societies Registration Act. Such a property cannot be treated as a trust property and the petitioners cannot take recourse to S.92. In this context, I shall refer to the contents in the affidavit filed by the first plaintiff on 26.10.1996. It has been stated there that seven persons of the locality called Perinjanam formed themselves as a society to establish a school to promote literacy among the people of the locality and for promoting cultural activities. The office bearers of the society collected funds from the public, constructed school buildings and furnished it with necessary furniture. They equipped a library and laboratory with such funds. The averment in the petition shows that the Perinjanam school is treated as a trust. The question raised for consideration is that whether a society registered under the Societies Registration Act can be deemed as a trust. A similar question arose for consideration in Kesava Panicker v. Damodara Panicker and Ors. -1975 KLT 797. In that case, a Full Bench of this Court held as follows: "The effect of the Societies Registration Act is not to invest properties of the society with the character of a trust property. Even if the purpose for which the society was formed was charitable purpose {he property acquired for this purpose will belong to the society and there is no trust and no trust can be predicted. The facts of this case show that the entire community in the area took an active interest and contributed funds for the purpose of creating a trust fund'in order that a school may be established. A committee was formed for collecting funds Thetrust fund was utilised for the construction of the school building and for the ancillary purposes for establishing and maintaining the work of the school. A committee was formed for collecting funds Thetrust fund was utilised for the construction of the school building and for the ancillary purposes for establishing and maintaining the work of the school. If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties. So the High School buildings, the land, all appurtenances, furniture, equipment and all other properties are trust properties". The Court was of the view that if there. was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties. In that case, the court held that the Committee very well exists and suit can be filed under S.92 of the Code of Civil Procedure. Here what is to be considered is whether the establishment of school was as a result of the charitable work of the local people or whether it was on account of the work of the Committee. Anyhow, these matters are to be finally determined in the suit. But going by the averments in the petition and suit, I find that it cannot be said that at present the school is not a trust property. 7. The next contention is that there was irregularity in the proceedings. Learned counsel for the petitioners brought to my notice that what has been done in this case is that the plaint was filed along with the I. A. for grant of leave. The leave petition does not say the entire facts. The suit was also numbered as O.S. No. 7/96 before the leave was granted. I am also of the view that the leave petition has to be considered independently. Leave petition should contain all facts just as a petition filed for prosecuting a suit as an indigent person. It should contain the statement of facts, grounds on which the plaintiff relies and also the relief sought for in the plaint. Suit can be instituted only after the leave is granted. Hence, the lower Courts should take care to see that leave petitions alone are filed at the initial stage and it should contain all facts. It should contain the statement of facts, grounds on which the plaintiff relies and also the relief sought for in the plaint. Suit can be instituted only after the leave is granted. Hence, the lower Courts should take care to see that leave petitions alone are filed at the initial stage and it should contain all facts. Regarding irregularity I don't think that any prejudice was caused to the petitioners to any extent. But I make it clear that it is the duty on the part of the Court to see that suit is numbered only after leave is granted. 8. Another contention raised is that the petition has been filed before the District Court and that it ought to have been filed in the Sub Court. Learned counsel relied on notification No. G.O. (MS) 384/66/Home dated 24.10.1966. Under the notification the Subordinate Judges were empowered to entertain the suit under S.92. Learned counsel submitted that under S.15 of the Code of Civil Procedure, proceedings have to be instituted in the lowest court having jurisdiction and hence according to him, petition for leave should have been filed in the Sub Court. 9. The above question was considered by the Division Bench of this Court in Pazhukkamattom Devaswom v. Lakshmikutty Amrna -1980 KLT 645. But that contention was negatived. The Division Bench observed thus: "S.15 of the Code which is a rule of procedure insists that a suit shall be instituted in the Court of the lowest grade competent to try it. S.15 can take in only ordinary civil suits and the courts where they are to be instituted are determined by their pecuniary and territorial jurisdictions. But there are other suits, suits of a special nature, suits which are governed by the special provisions contained in Part V of the Code which provides for special proceedings" The Division Bench also observed that the suit filed under S.92 is not an ordinary suit. In such a case, if the suit is filed in any one of the Courts specified in the section the Court cannot order the return of the plaint. Hence, that contention also cannot succeed. In the above view of the matter, I find no merit in the Civil Revision Petition and it is dismissed.