Research › Search › Judgment

Kerala High Court · body

2004 DIGILAW 636 (KER)

Pazhukkamattom Devaswom v. Kunju Muhammed

2004-12-17

THOTTATHIL B.RADHAKRISHNAN

body2004
Judgment :- This Second Appeal is filed by the plaintiffs in a suit filed under Section 92 of the Code of Civil Procedure. 2. This appeal is confined to the rights of the 7th defendant. 3. The necessary facts are as follows: The suit was filed alleging mismanagement of the 1st plaintiff Trust. The trial Court passed a preliminary decree on 17-12-1993 for settling a scheme for the proper management and administration of the temple and its properties; declaring the right of the plaintiffs and the general public in the locality to participate in the management and administration of the temple, appointing a new trustee for the 1st plaintiff temple (Trust) and ordering removal of the 1st defendant trustee from the management of the temple and its properties; directing the 1st defendant to surrender all the documents and properties, movable and immovable, to the new trustees; declaring that the documents, Lease Deed No.1380/56. Release Deed No.2775/68, Sale Deed No.2776/68, Lease Deed No.2961/69, Mortgage Deed No.489/69, Mortgage Deed No.201/70 and Sale Deed No.3592/73 are null and void and not binding on the 1st plaintiff trust; directing the 1st defendant to account for the income of the trust from its properties after 1125 M.E. and allowing the new trustees to recover the amount found due from the 1st defendant, who was also restrained from taking any steps in the management of the trust or keeping the assets of the trust or to collect any annuity from the Government to the temple and causing obstruction to the worshippers or alienating the assets of the temple. 4. A.S.83/1995 was filed by the 1st defendant, A.S.84/1995 was filed by the 2nd defendant and A.S.85/1995 was filed by the 7th defendant. The 1st defendant died pending the appeals and his legal representatives prosecuted his appeal. The lower appellate court allowed the appeals by the 1st defendant and by the 2nd defendant in part and allowed the appeal of the 7th defendant (A.S.85/1995) in toto. Accordingly, the liability of the 1st defendant to render accounts was limited for a period of three years immediately prior to suit and the decree for injunction against him was set aside as having become infructuous on his death. The direction for removal of the 1st defendant and the injunction against him were vacated noticing that he was dead pending first appeal. The direction for removal of the 1st defendant and the injunction against him were vacated noticing that he was dead pending first appeal. The declaration granted by the trial court as regards Lease Deed No.1380/56, Mortgage Deed No.201/70 and Mortgage Deed No.3592/73 was set aside and the suit to the extent it relates to the 7th defendant was dismissed by the lower appellate court. The validity of the said documents and the claim of fixity of tenure which was found against him by the trial court were left open for consideration in appropriate proceedings. The other declarations and directions were retained. 5. This Second Appeal is by the plaintiffs challenging the decision of the lower appellate court in so far as it related to vacating the declarations and directions in relation to the properties claimed by the 7th defendant on the strength of documents, Lease Deed No.1380/56, Mortgage Deed No.201/70 and Mortgage Deed No.3592/73 and the consequential dismissal of the suit to that extent. 6. Having heard the learned counsel appearing for the appellants and the respondent (7th defendant), the following substantial questions of law are formulated: i. Whether the lease of a delinquent trustee who has been ordered to account and deliver properties and documents of the trust to the new trustees is liable to be disposed by a decree in a suit filed invoking Section 92 of the Code of Civil Procedure? ii. Does the 7th defendant have any claim independent of the delinquent trustee who has been ordered to account and deliver up? iii. What are the rights of a lessee of the type of the respondent, 7th defendant? 7. The trial court had ordered removal of the 1st defendant trustee. This finding was vacated by the lower appellate court since the 1st defendant was no more and because, according to the lower appellate court, the 1st defendant was only a manager and not a trustee. 8. In so far as the claim of the 7th defendant is concerned, he challenged the public nature of the trust and also set up a plea that he is entitled to fixity of tenure under the Kerala Land Reforms Act, 1969 on the basis of the transactions under which he claims. 8. In so far as the claim of the 7th defendant is concerned, he challenged the public nature of the trust and also set up a plea that he is entitled to fixity of tenure under the Kerala Land Reforms Act, 1969 on the basis of the transactions under which he claims. It is not disputed that the trial court in a suit under Section 92 C.P.C., acted within jurisdiction to decide the nature of the trust when such question was raised by the contesting defendants. The finding that it is a public trust to which Section 92 applies was not interfered with by the lower appellate court and no such contention is agitated before me by the respondent in this appeal (7th defendant). 9. The only question that is raised is as to whether the court trying a suit under Section 92 of the Code of Civil Procedure is empowered to order eviction of a lessee under a trustee who has been ordered to be removed and directed to account and deliver up. 10. The quality of the claim of the respondent, the 7th defendant, therefore, arises for consideration. His case is that he is a lessee, having been inducted by the trustee or the manager, as the case may be, and on the strength of the assignment of a then existing lease in his favour, he is entitled to fixity of tenure under the Kerala Land Reforms Act. That issue was referred for adjudication to the Land Tribunal which answered that issue against him. 11. Having regard to the nature of a trust and its legal incidents, it naturally follows that the lessee of a trustee is a person claiming under him and is not entitled to set up any independent claim as against the beneficial owners of the trust unless the law upholds the lease independent of the junction of the trustee. The Land Tribunal came to the conclusion that the 7th defendant had no fixity of tenure under the Kerala Land Reforms Act and the trial court held that the transactions effected by the delinquent trustee were not binding on the plaintiffs and were liable to be set aside. The Land Tribunal came to the conclusion that the 7th defendant had no fixity of tenure under the Kerala Land Reforms Act and the trial court held that the transactions effected by the delinquent trustee were not binding on the plaintiffs and were liable to be set aside. The 1st defendant having been found to be a delinquent trustee, there is no reason why the persons claiming under him shall also be not found by the directions contained in the preliminary decree that they shall deliver up the documents and properties to the new trustees on settlement of the claim. So much so, the directions of the trial court are well within the parameters of Section 92 and particularly under Clause (cc) of Sub-section (1) of Section 92, though the said provision, as has been noticed by precedents, was brought in only as a matter of precaution and such power was being exercised even before the introduction of such a provision by amendment. Similar are the powers under Clause (h) of Section 92(1), which obviously has to be read ejusdem generis with the clauses that preceded it. Obviously, therefore, when a delinquent trustee is ordered to deliver up, such direction will bind any person who can claim under him and the issuance of such a direction, in my view, will be well within the powers of the court emanating out of Clauses (cc) and (h) of Section 92(1) C.P.C. The 7th defendant having been found to be not entitled to fixity of tenure, is merely a lessee or a transferee of a trustee who has been ordered to account and deliver up. In my view, there was no embargo for the trial court to have set aside the transactions in favour of the 7th defendant and directing him also to deliver up. In that view of the matter, the interference by the lower appellate court with the declarations and directions issued by the trial court as regards the trust properties in the possession of the 7th defendant is contrary to law and unsustainable. I, therefore, answer the questions formulated in favour of the appellants. 12. In the result, the judgment of the lower appellate court in so far as it allowed A.S.No.85 of 1995 is set aside. Clause (5) among reliefs granted by the lower appellate court is set aside. A.S.No.85 of 1995 will stand dismissed. I, therefore, answer the questions formulated in favour of the appellants. 12. In the result, the judgment of the lower appellate court in so far as it allowed A.S.No.85 of 1995 is set aside. Clause (5) among reliefs granted by the lower appellate court is set aside. A.S.No.85 of 1995 will stand dismissed. The preliminary decree of the trial court in so far as it relates to the 7th defendant and Documents No.1380/56, No.201/70 and No.3592/73 is restored. The Second Appeal is accordingly allowed in the above terms, however, leaving the parties to bear their own costs.