Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 251 (KAR)

Donor Bellur Thammaiah’s v. G. M. Gadkar

2010-02-26

JAWAD RAHIM

body2010
Judgment This revision under Section 115 of the Code of Civil Procedure is directed against the order dated 21-01-2006 in Misc. Case No.4/2005 on the file of the Principal District Judge, Mysore, granting relief under Section 92 (1) read with Section 151 Code of Civil Procedure to institute suit against the trust Donor Bellur Thammaiah’s Charities & Sri Swamy Ramadas Melu Sakkare Uppara Vidya Vardhaka Trust, Mysore. 2. The petitioners are members of the Board of Trust in governance and have questioned the grant of leave. 3. I have heard learned counsel Sri G.L. Vishwanath for petitioners and Smt. M.P. Geetha Devi for the respondents and examined the records in supplementation thereto. 4. Before I advert to the contentious issue raised by the learned counsel on both side, a brief reference to factual matrix is necessary. It is; One Sri B.A. Thammaiah of Melu Sakkare Uppara Community, Contractor by profession being man of means, was deeply concerned with the plight of the members of that Community in particular and other students in general, who have pursuing education facing all odds. With a view to provide residence in Bellur to such deserving students and with a view to provide in Mysore District and also to provide basic necessities and amenities, he desired to construct hostel. With that main object he applied to and was successful in obtaining grant of land from the then City Improvement Trust Board (in short ‘CITB’). The CITB in its Board Meeting dated 25-02-1941 resolved and granted to him immovable property described in Schedule-I of the plaint for construction of hostel as evidenced from resolution No.13 of even dated. It fixed offset price of Rs.0.26 per sq. yard, but resolved the grant was free of cost. In pursuance to the CITB resolution, further action was taken transferring unto him the property described in Schedule-I. Similarly, an agreement dated 16-02-1944 also was executed in relation other property, which was in the vicinity of the property so granted. 5. Pooling his own resources he constructed the hostel building on portion of the property and made it available for deserving students. The hostel facilities accorded to the beneficiaries, encouraged them in persuit of education. 5. Pooling his own resources he constructed the hostel building on portion of the property and made it available for deserving students. The hostel facilities accorded to the beneficiaries, encouraged them in persuit of education. The hostel was recognized by the Director of Public Instructions, Mysore as Swamy Ramadasa Uppara Hostel, Saraswathipuram, Mysore by circular dated 19-07-1961 and the Engineer of the Board noticing that there were 33 students then and further additional accommodation was required, recommended grant of additional land to him. 6. In this manner, additional land, apart from the existing building, was also granted.B. Thammaiah continue to manage the hostel and the properties so acquired and desired the Trust the Trust be expressly created. In fact, it is not in dispute that implied trust came in existence soon after the land was acquired initially and hostel was built and made available to the students. As the implied trust under the Presidentship of the founder successfully fulfilled its object, additional grant of 15 acres was made vide item No.2 in the plaint schedule. B. Thammaiah was the founder and President of the implied trust from its inception and carried out the administration with the able aid and assistance of his son-in-law Y.S. Lingaiah, a practicing Advocate and man of repute being President of Bar Association, Municipal President and Honarary Magistrate at K.R. Nagar. He worked as Manager and Secretary of Vidyarthinilaya. 7. However, on 14.11.1965 as per the wishes of the donor B. Thammaiah, he assumed Office of the President and continued to work in that capacity during the life time of the founder. The founder died during June 1973. In fulfillment of the desire of the donor, Y.S.Lingaiah executed trust deed on 25-05-1974, registered at Sl. No. 624/1974-1975 in the Office of the Registrar, in the capacity of the President and the trust thus re-nomenclatured as Donor Bellur Thammaiah’s Charities & Sri Swamy Ramadas Melu Sakkare Uppara Vidya Vardhaka Trust, Mysore. 8. By virtue of the said deed the implied trust become the express trust nominating certain persons as trustees. But some of the trustees died during the term and management continued to be with Y.S. Lingaiah. During this period, apart from item No.2 of the plaint Schedule, another land was also granted vide order No. LND 109/85-86 dated 20-08-1986 by the Deputy Commissioner, Mysore. But some of the trustees died during the term and management continued to be with Y.S. Lingaiah. During this period, apart from item No.2 of the plaint Schedule, another land was also granted vide order No. LND 109/85-86 dated 20-08-1986 by the Deputy Commissioner, Mysore. Since the requirement of the trust increased and in fulfillment of the aim and object, it was decided to enlarge its activities for its smooth functioning, Y.S. Lingaiah registered another instrument dated 08-07-2008 called as Addenda and Corrigenda to the earlier deed referred to above, thereby enlisting three more trustees and it was duly registered. 9. Dr. K.L. Ramadas, the first grant son of Bellur A. Thammaiah and the eldest son Y.S. Lingaiah, who was a leading Psychiatrist, Kansas City, USA, on his return to the country was one of the Trsutee. He succeeded Y.S. Lingaiah as president in the year 1989 and being very progressive in his thought with vision for better service to the Community, in particular, and Society in general, he constructed additional hostel block in the year 1992-94 at the cost of Rs.25 lakhs, which was in supplementation to the hostel facility which was in existence. It housed about 80 students and further construction at the costs Rs.50 lakhs was increased. 10. In this manner under his Presidentship the Trust which by then was running only one hostel also established additional hostel block and also stated imparting education, through newly established, its own, education institutions. The object was to provide education apart from the hostel facility. The contention of petitioners is that the hostel available for students could not cater to all the needs of students in pursuit of their education and hence starting of educational institution was be in aid of the main object of the Trust. 11. The education institution so established developed into first Grade College of Business Management. The Courses of Business Management commenced in the year 1996 provided with all modern and required facilities at the cost of Rs.12 lakhs. The additional Rs.30 lakhs was also spent. The Post-graduate course in Business Management (MBA) was introduced during 1999 affiliating the institution to Mysore University and independent PUC College was also started in the same year. The study center of the Karnataka State Open University was established equipped with library. 12. The additional Rs.30 lakhs was also spent. The Post-graduate course in Business Management (MBA) was introduced during 1999 affiliating the institution to Mysore University and independent PUC College was also started in the same year. The study center of the Karnataka State Open University was established equipped with library. 12. As the activities of the Trust advanced in various directions with education as its main object, for effectual management of the institution under the banner of the original trust, it was thought fit to have the apprehensive terms incorporated in a deed trust for better management and also to ensure that the lengthy name of the trust be abbreviated to ‘TTL Trust’. Such name was thought of keeping in mind that ‘TTL’ will also stand for ‘Towards Total Learning’. Thus, by deed dated 10-06-1993 the second trust deed came to be executed. 13. The respondents were till recently not interested in the trust or activities, but for the first time filed suit before the District Judge, Mysore, with application under Section 92 (1) of the Code of Civil Procedure to grant leave to file a suit for certain reliefs. They sought leave to file the suit on the ground that the original trust deed was amended transforming it from public charitable trust to private trust and powers of the President were enlarged unlike the original deed. They also alleged that the power conferred on the President will lead to several adverse consequences and there was possibility of dictatorial management, and will be detrimental to the interest of the trust. In this regard they alleged the main object of the trust was to run only hostel and nothing else. According to their apprehension establishing of educational institutions was in contravention of the original object and purpose of the trust. To support such contention they urged that because there was deviation of the original object of the trust there was every likelihood of CITB, now MUDA, canceling the allotment made and resume the property on which hostel was constructed. 14. Upon presentation of the Miscellaneous petition under Section 92(1) CPC leave to file suit, notice was ordered as permissible under order 1 Rule 8 CPC in so far as defendant No.1 – petitioner, is concerned. It entered appearance and filed elaborate counter pointing out to malafides in the proposed action of the respondents and also questioned their locus standi to seek relief. It entered appearance and filed elaborate counter pointing out to malafides in the proposed action of the respondents and also questioned their locus standi to seek relief. 15. Despite resistances from the petitioners the learned District Judge accepted the application and by the impugned order granted leave to file the suit, against which this revision is filed. 16. The respondents (plaintiffs) have opposed this petition. 17. In the first instance, it would be necessary to refer to the question raised by the respondents about maintainability of the petition under Section 115 C.P.C. The respondents’ counsel placing reliance on the decision in the case of PANDURANG DHONDI CHOUGULE AND OTHERS vs MARUTI HARI JADHAV AND OTHERS report in AIR 1966 sc 153 , urged that in view of amendment to code of civil procedure revisional power of the High Court is confined to consider error of law and not to decide question of fact. Reference is made to observations of the Apex Court that the High Court has power to call for records and examine it to test legality, propriety and not otherwise, which ground is opposed by the petitioners. 18. The question about maintainability of revision petition under Section 115 of CPC against the grant of leave to file the suit has been considered by the Apex Court in its recent decision in the case of VIDYODAYA TRUST vs MOHAN PRASAD R. & ORS, reported in AIR 2008 sc 1633 , wherein Apex Court held thus: 4. Earlier the matter was before this Court in Civil Appeal No.3679 of 2006. The factual position as was noticed in the earlier appeal was as follows: “Respondents as plaintiffs filed OP No.238 of 2000 before the District judge, Ernakulam under Section 34 of the Indian Trust Act, 1882 (in short the “trust Act”) in respect of Vidyodaya Trust and administration of the said trust and the school run by the trust. But the said Court by order dated 31.1.2000 held that the OP was not maintainable and dismissed the petition. Thereafter, the suit No.20 of 2000 was filed by the respondents as plaintiffs claiming several reliefs. The respondents filed an application (1A 349 of 2000) seeking leave of the Court to institute the suit under Section 92 of CPC. According to the appellant without notice to him the concerned Court granted leave to the respondents to institute the suit. Thereafter, the suit No.20 of 2000 was filed by the respondents as plaintiffs claiming several reliefs. The respondents filed an application (1A 349 of 2000) seeking leave of the Court to institute the suit under Section 92 of CPC. According to the appellant without notice to him the concerned Court granted leave to the respondents to institute the suit. The suit was numbered as OS 20 OF 2000. Plaintiffs filed written statement inter-alia taking the stand that suit was actuated by personal motives. The suit under Section 92, CPC is of a special nature which pre-supposes existence of a Public Trust of religious or charitable character. From the averments in the plaint and the reliefs sought for it is clear that the plaintiffs were not suing to vindicate rights of the public, and it has not been filed in the representative capacity. The plaintiffs four in number are trustees who instituted both the suits against other trustees for personal reliefs and as individuals and seeking vindication of alleged individual rights and not as representatives of the public. Therefore, the suit as framed is not maintainable under Section 92, CPC. The defendants filed an application before the District Judge, Ernakulam for hearing as preliminary issue, the question of maintainability of the suit. On the basis of contentions raised by the plaintiffs as well as defendants, the court framed preliminary issue as to whether the suit as framed is maintainable under section 92, CPC. By Order dated 11-04-2003 the Court held that the suit was maintainable. Question correctness of the order, a petition for revision in terms of Section 115, CPC was filed. The High Court dismissed the Civil Revision petition on the ground that the same was not maintainable. Though the High Court made reference to some factual aspects, it ultimately came to hold that the revision petition was not maintainable as order dated 04-11-2003 was an interlocutory one. Thereafter the appellant filed writ petition before the High Court praying, inter alia, for writ, direction or order, questioning the order dated 2003. By order dated 20-08-2004 the High Court dismissed the writ petition holding that the view taken in the Civil Revision apparently was not correct, as by no stretch of imagination it can be held that the High Court had no jurisdiction. By order dated 20-08-2004 the High Court dismissed the writ petition holding that the view taken in the Civil Revision apparently was not correct, as by no stretch of imagination it can be held that the High Court had no jurisdiction. It accepted the stand of the respondents herein that since there was discussion on merits, though the petition was not held to be maintainable subsequent proceedings initiated under Article 227 of the Constitution of India, 1950 (in short the ‘Constitution’) cannot be maintained.” 5. “Both the orders, i.e., one in the Revision Petition and the other in the writ petition were challenged before this court. Talking note of the facts, the appeal was disposed of with the following conclusions: ‘Judged in the aforesaid background the view of the learned single Judge that the Civil Revision was not5. Both the orders i.e., one in the revision petition and the other in the writ petition were challenged before this court. Taking note of the facts. The appeal was disposed of with the following conclusions: “Judged in the aforesaid background the view of the learned Single Judge that the Civil Revision was not maintainable is clearly indefensible. Learned counsel for the respondent has fairly conceded to this position. If it is held that the suit in terms of Section 92 CPC is not maintainable, that would have the result of final disposal of the suit. However, the learned counsel made an attempt to justify the order by stating that the matter was also dealt with on merits. That would not improve the situation. The Civil Revision was clearly maintainable. Therefore, we allow the appeal so far as it relates to Civil Revision Petition No.1260/2003 disposed of by judgment dated 5-02-2004 by the High Court. The said order is set aside. The High Court shall now hear the Civil Revision on merits and dispose of the same as expeditiously as practicable preferably within four months from the date of receipt of our order. The time period is being fixed considering the pendency of the matter for a considerable length of time. In time of the order passed in the appeal relating to Section 115, CPC no order is necessary to be passed in respect of the judgment in the writ petition. The time period is being fixed considering the pendency of the matter for a considerable length of time. In time of the order passed in the appeal relating to Section 115, CPC no order is necessary to be passed in respect of the judgment in the writ petition. It may be noted that the learned Single Judge observed that the Civil Revision was maintainable and, therefore, declined to entertain the writ petition. This order was passed on the face of the order passed by learned Single Judge holding that it was not maintainable. The same, therefore, is not justifiable. But it is not necessary to deal with that matter as the Civil Revision shall be heard on merit.” 19. Therefore, in view of clarity in the dictum of the Apex Court (supra) that against order granting leave under Section 92 of CPC, Revision Petition under Section 115 CPC is maintainable, objections are over ruled. 20. I shall now consider the grounds against the impugned order. 21. The learned counsel Sri Vishwanath has taken us to the allegations in the plant against the Trustees in management and pertinently pointed out that the reliefs sought in the form of prayer in the suit is not covered by the provisions of Section 92 of the CPC. 22. It is therefore, necessary to extract the prayer with which the respondents have approached the court below which reads as follows: “1. For an order for removal of the Board of Trustees which has come into being in pursuant of the document under the caption “ADDENDA and CORRIGENDA”, registered on 12-07-1988, another document which has come into being under the caption “DECLARATION OF TRUST”, dated 10-06-1993 and named as “yajaman Bellur A Thammaiah and Thayamma Yedathore Saddivil Lingaiah Trust”,dated 10.06.1993 or in other words called as“T.T.L. Educational Institute”,1st main Saraswathi Puram, Mysore-570 009, and the MEMORANDUM OF ASSOCIATION”, dated 06-10-1993 registered under the Societies Registration Act under the name “T.T.L. Educational Institute”, 1st main, Saraswhi Puram, Mysore – 570 009. 2. 2. For setting a scheme as required by law for the management of the Trust dated 20-05-1974 by appointing new trustees and to constitute Board of Trustees to run the same as per the wishes of the donor and author of the 1st defendant Trust, as most of the trustees appointed by the said Trust Deed are not alive and no new trustees have been appointed as per the covenants of the said Trust Deed. 3. For a direction to the defendants to render proper accounts of the Trust dated 20-05-1974 and for an inquiry from the date of inception of Trust till the handing over of the Trust properties to the trustees to be appointed by the Hon’ble court. 4. For a direction to enjoy the suit schedule Trust properties in accordance with the conditions laid down by the C.I.T.B Mysore for the management of the first item of the suit schedule site property and further in respect of agricultural lands granted by the Government of Karnataka to the Trust that is in favour of the first defendant in the second item of the schedule below. 5. For Granting such other further reliefs as the nature of the suit may require.” Relief grantable under the provisions of Section 92 of CPC, reads thus: “92. 5. For Granting such other further reliefs as the nature of the suit may require.” Relief grantable under the provisions of Section 92 of CPC, reads thus: “92. Public Charities.- 1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or whether the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the state Government within the local limits of whose jurisdiction the whole or may part of the subject-matter of the trust is situate to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (d) directing a trustee who has been removed or a person who has ceased to be trustee, to deliver possession to the person entitled to the possession of such property; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States), no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that subsection. (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy-pres in one or more of the following circumstances, namely;- (a) where the original purposes of the trust, in whole or in part,- (i) have been, as far as may be, fulfilled; or ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down,- (i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.” 23. Learned Counsel Sri. G.L. Vishwanath while adverting to the averments made in the plant would contend that in the plaint there are no allegations relating to the following. * Mismanagement or breach of Trust * Any personal benefit conferred on the Trustees * Any illegality or impropriety in the administration of the Trust. * That the Trust property is being endangered, alienated or disposed. * Mismanagement or breach of Trust * Any personal benefit conferred on the Trustees * Any illegality or impropriety in the administration of the Trust. * That the Trust property is being endangered, alienated or disposed. The main allegations in the proposed Pliant is that certain covenants of the original Trust Deed dated 2-5-1974 have been amended, modified or deleted under the Addenda / Corrigenda dated 08-07-1988; that this has the effect of converting the original Trust into a private family trust; certain convenants regarding co-opting of addition Trustees / Temporary members and invitees have been added; that the declaration of Trust dated 10-06-1993 has been registered as a Society and not with the Sub-Registrar and therefore such declaration is invalid; that the power vested in the Chairman whose decision is held to be final and binding is arbitrary. The Petitioners are not “persons interested” within the meaning of Sec.92 to maintain the suit. Irrespective of the nomenclature used in the addenda (1988) and declaration (1993) as a Private Family Trust, the fact remains that the beneficiaries under the Trust Viz., the public at large and the Uppara Community in particular has not been diminished, changed or altered. The City Improvement Trust Board (CITB) allotted the 1st site in 1941 to Sri. Thammaiah for construction of the Hostel. That allotment carried a Covenant that the land so allotted will be utilized for a Hostel. In fact the old Hostel has been constructed on the site. Additional allotments of land were made in 1943-44 but such allotments did not carry any conditions. Therefore the Trust has not violated any conditions of the grant of land. Moreover assuming any such violation, though not admitting the same, the CITB cannot impose such conditions and the same is violative of law. Even under the declaration dated 10-06-1993 the same was in supplement to the original Trust Deed of 1974 by way of adding further objects. The allegations that the Hostel activity was disbanded by Dr. Ramadas under the Declaration is false inasmuch as the new hostel was constructed during the period of 1992-94 at a cost of Rs.24 Lacks and inaugurated in 1994. The trust has been functioning effectively since 1974 and even prior to that as an implied Trust. The allegations that the Hostel activity was disbanded by Dr. Ramadas under the Declaration is false inasmuch as the new hostel was constructed during the period of 1992-94 at a cost of Rs.24 Lacks and inaugurated in 1994. The trust has been functioning effectively since 1974 and even prior to that as an implied Trust. Several additions and improvements have been made the Trust such as college building, business management school, computer center, library and Karnataka State Open University has been added between 1992 and 2003. There are 60 students in B.Com, 100 Students in P.U. Junior College and more than 250 students in BBM, MBA, Computer Programs. There are more than 50 teaching and non-teaching staff. The Established Educational Institution will suffer serious prejudice if the impugned order is not set aside. It is therefore, clear that suit of the nature covered by Section 92 CPC will be maintainable, only if there is any alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature, or whether the direction of the court is deemed necessary for the administration of any such trust. The allegations in the plaint and cause of action pleaded by the respondents in the suit is that the petitioners are converting public trust into a family trust of deceased Y. S. Lingaiah and on enquiry it came to light that on 12-07-1988 document called Addenda and corrigendum was registered on 29-09-1993. Then another document called Declaration of Trust came into existence on 06-10-1903, and subsequently Memorandum of Association came to be registered under the name and style of ‘TTL Educational Institute’ under the provisions of Karnataka Co-operative Societies Registration Act. 24. Another ground is that Trust was established only to run hostel but the petitioners have diversified activities to start Educational institution, thereby changing the main object of the Trust. Smt. Geetha Devi, learned counsel for respondent drawing my attention to averments in the plaint would contend that the respondents have pleaded clearly before the Trial court that since the hostel constructed on the land allotted by the CITB is non functional, there is immanent threat of CITB revoking the allotment and resuming the land. However the respondents/plaintiffs were unable to point out to any specific circumstances which would support and substantiate, the following allegations. 1. Mis-management 2. MalafideAction 3. However the respondents/plaintiffs were unable to point out to any specific circumstances which would support and substantiate, the following allegations. 1. Mis-management 2. MalafideAction 3. Failure of trustees to fulfil aim and object of the trust. Infact the respondents/plaintiffs did admit that the averments made in the plaint are not of such nature as to substantiate mis conduct, mis management or failure to perform the duties caused upon them as trustees. Even against the President of the Trust no such maintainable ground is urged for grant of relief sought in the plaint. It is also material to note that during hearing of this petition the respondents/plaintiffs filed a memo seeking permission to withdraw the suit filed by them and to reserve their rights to institute fresh suit on the same cause of action. As only MEMO was filed and not application as is required under Provisions of Order 23 Rule 1 and 2 of the CPC, the memo filed by them was rejected by Order dated 09-03-2009. This would also show plaintiffs on their own volition have admitted to lack of material / grounds to seek relief under Section 92 of CPC. 25. However, in negation of allegations in the plaint the petitioners have produced certain documents relating to the trust from its inception till now. The only circumstance alleged is, there is deviation from the original object of the trust, by starting educational institutions and also that the hostel which was established is not functional. 26. The documents evidence the fact site was granted to the donor by the CITB, Mysore. It is actually a resolution of the CITB and the grant order issued in pursuance thereto describes the Schedule and contains condition that the land is given free of cost wide CITB Resolution No.83 dated 28-08-1940 subject to the condition that if it is used for any purpose other than hostel the lands with building thereon will revert back to CITB. On that basis the respondents apprehend that land is likely to be resumed by the CITB, if there no hostel is run. This apprehension is set at rest by the petitioners through their declaration that even as on today the building constructed is being used as hostel and since it is old and in dilapidated condition alternative accommodation is also made available in the new hostel building constructed on adjoining land. This apprehension is set at rest by the petitioners through their declaration that even as on today the building constructed is being used as hostel and since it is old and in dilapidated condition alternative accommodation is also made available in the new hostel building constructed on adjoining land. This statement has not been controverted by the respondents except stating that electricity was out off, which itself shows that there is habitation of the students in the hostel. 27. From the plaint averments it is noticed there is no allegation that the hostel constructed on the first site is not in existence. Mere dis-connection of electricity to the hostel building does not indicate that the hostel has ceased to function. On the other hand the specific stand taken by the petitioners is that the hostel constructed on the first site is still in existence but requires substantial repairs. To provide alternative accommodation to the students additional hostel building has been put up. Therefore, there is absolutely no material on record to show that the hostel constructed on the first site is not being used and land is diverted for purpose than the hostel. It is nobody’s case that at any time from the date of inception of the trust or at any time thereafter the site has been used for the purpose other than running the hostel. The fact that trust has acquired additional lands subsequent to initial allotment by CITB is not in dispute. It is also not in dispute that by virtue of the express trust created in the year 1974, the then President has continued the main object of the trust and the hostel has been in existence and used for the students for more than 60 years. 28. Therefore, basis on which the respondents alleged ‘mis-management of the trust funds no support. It is also well clarified that the lands acquired subsequently by the trust either by its original donor or the successor in Office is without any riders and without any condition related to its user. The grant is to trust for fulfillment of its object. 28. Therefore, basis on which the respondents alleged ‘mis-management of the trust funds no support. It is also well clarified that the lands acquired subsequently by the trust either by its original donor or the successor in Office is without any riders and without any condition related to its user. The grant is to trust for fulfillment of its object. There is also no dispute that having obtained the lands from CITB the donor constructed hostel building and put it to use as a hostel for students and that became the implied trust and was so recognized till express trust was created by virtue of trust in the year 1974. 29. Since it has become express trust by virtue of trust deed dated 20-05-1974 and it is that document which respondents also relie, we have to examine whether it prohibits any other activities than running of hostel. The object of the trust is specifically incorporated and is better part of the express trust. The object declared is; to retain and develop, existing properties belonging to the trust morefully described in the schedule hereunder and also by collections of donation, grants, aids and loans and from other sources and to admit Melusakkare Uppara Community students for boarding and lodging in the Hostel or Anathalaya or Ramadas Ashram, to be further started and developed in future, and to grants scholarships and such Aids to poor and deserving students of the Community and to start and to maintain Educational Institutions and other Social and Welfare Institutions and to do all acts which are not inconsistent with the General objects of this Trust, viz, the Educational and Social Advancement of Melusakkare Uppara Community of Donor Bellur A Thammaiah.” 30. Thus, it admits of no doubt, that the first step was to provide hostel to the youngsters / students belonging to Uppara Community and other deserving students, and further the object has been enlarged to start educational institutions and other social and welfare institutions and to do all acts which are not inconsistent with main objects of the trust. By this, the express trust has brought within its ambit all the activities not only to provide education and free hostel facility to the students of the Uppara Community in particular but also to provide education to other poor and deserving and to start other social institutions, which are not inconsistent with the main object. 31. By this, the express trust has brought within its ambit all the activities not only to provide education and free hostel facility to the students of the Uppara Community in particular but also to provide education to other poor and deserving and to start other social institutions, which are not inconsistent with the main object. 31. The object of trust was not confined to benefit only particular sect, finds support from Clause 10 of the expressed trust, which envisages that though 1/3rd of the seats of the present nilaya or hostel, hereafter to be started shall be set apart for students of other Communities and of the backward classes. There could be no better clarity about intention of the trust. The intention is clear from the terms of the deed itself mere providing hostel facility to the students of Uppara Community alone was not the object, but the object was quite broad and the founder had during his life time itself thought of social activities apart from prime object. 32. It is necessary to observe that the main cause of action pleaded by the respondents was that the hostel built on the land was not in use therefore, the land would be resumed by the CITB and consequently, trust would Suffer. According to them it is an act of mis-management requiring removal of the trustees. Such a ground, in the light of the factual position must necessarily fail. 33. While granting leave the court was expected to examine the averments in the plaint and to find grounds for the cause of action. To ascertain whether the apprehension in the mind of the plaintiffs justify any interference of the court for the management of the trust and to supercede the trust but that has escaped notice of the learned District Judge. 34. The second contention of the respondents that the original mandate in the trust has been violated and the President has assumed to himself dictatorial power adverse to the interest of the trust, also is without substance because recital of the addenda contains no such clauses. 35. Para-2 of the addenda makes it clear that ‘except the amendment noted below, the rest of the terms and conditions of the original registered trust deed will remain as they are’. The addenda suggest that amendment only to relevant Para to delete the names of the trustees who are not alive. 35. Para-2 of the addenda makes it clear that ‘except the amendment noted below, the rest of the terms and conditions of the original registered trust deed will remain as they are’. The addenda suggest that amendment only to relevant Para to delete the names of the trustees who are not alive. At Para-5, the amendment proposed is to delete the words ‘in consultation with the remaining trustees’. The addenda also proposes to incorporate certain conditions and to delete certain conditions. If that condition has to remain the appointment of new trustees would have become impossible. With that object Clause was altered accordingly. 36. Of course, in rest of the clauses the President is given last word, but only in the case of difference of opinion. Therefore, democractic rule was left untouched in the matter of decision except when there is any different of equal vote the President is given the power of decisive vote. 37. The other ground canvassed by the respondents is that the public trust has been transformed into a private trust. On close scrutiny, I do not find any condition in the addenda to show that it has transformed from public trust to private trust, except in Page-7, which reads as follows: “So, the President steps into the shoe of the donor Bellur A. Thammaiah, who had kept implicit faith in his daughter Smt. Thimmamma @ Thayamma and in his son-in-law Sri Y.S. Lingaiah and accordingly Sri Y.S.Lingaiah has created the original Trust as well as the addenda and corrigenda Trust, in the capacity of both the author of the Trust and also the main First Trustee, and as President of this Trust for the main use of the Malusakkare Uppara Community Poor Students and for the poor students of other very backward communities as well. So this trust is a private family Trust.’ 38. The use of the word ‘private trust’ in that paragraph is perhaps with reference to the desire of the owner that his other family members must continue to take part in the benevolent activities, which he had commenced. Therefore, mere user of the word private trust does not by itself mean that main object public good has been frustrated or object has been confined only to benefit Y.S. Lingaiah or his relatives of relatives of the founder. Therefore, mere user of the word private trust does not by itself mean that main object public good has been frustrated or object has been confined only to benefit Y.S. Lingaiah or his relatives of relatives of the founder. Since in its terminology the object is to benefit the poor students of Uppara Community students in particular and students of other Community in general the trust remains as public charitable trust. The contention of the respondents to the contrary that by addenda the trust has been converted from public trust to private trust is misconceived. It is therefore not worthy of acceptance is discounted. 39. With regard to declaration of trust by the deed referred to above it is to be noticed that by declaration of trust deed dated 10-06-1993 the aim and object of the trust has not been altered. On the other hand, the name of the trust has been abbreviated to be called as ‘TTL Trust’ and all other conditions with regard to its aims and object remain the same. Para-6 of the declaration reads ‘the Trust hereby created is an Universal and its Family Tradition for the cause of public charities’. This confirms the object of the donor that the trust must fulfil needs of the Community and also for the public charity is reaffirmed. 40. The bye-laws framed as part of the declaration at Para-9(d)(a) also makes it clear that ‘Board of Trustees and all members and employees of this Trust shall agree and strive and make all efforts to improve and enhance the ability of the Trust to fulfil its aims and goals which is to serve the needy people at large. The members of the Trust and the Officers of the Trust shall not under in any circumstances convert, call in, sell, mortgage or otherwise dispose of any of the properties of the Trust and shall not deviate from the sole objectives of the original Donor, Sri Yajaman Bellur A. Thammaiah.. ...” 41. Having adverted to the pleadings as noticed from the records and relevant documents, we have no escape but to hold that the averments in the plaint are contrary to the facts and are also in the nature of reckless allegations. 42. ...” 41. Having adverted to the pleadings as noticed from the records and relevant documents, we have no escape but to hold that the averments in the plaint are contrary to the facts and are also in the nature of reckless allegations. 42. In fact, the main aim and object with which Section 92 CPC has been incorporation in the Code is to allow courts intervention only in sufficient grounds for its effective control and management by issuance of directions and framing of schemes wherever necessary. The requirement of law to seek leave to institute suit against the trust is intended to prevent frivolous, baseless and mischievous litigations against the public trust. The main intent and purpose of legislature to require leave is to protect and preserve the institution. 43. Public charitable trusts are generally intended to exist in perpetuity unless otherwise specifically provided in the implied or express trust. The founder / founders of the trust are not immortals. When he / they depart, the rein of administration and management passes on to the successors in the manner provided in the implied or expressed trust. The successors having resumed office would strive to fulfil aims and objects of the trust. By their relentless efforts whenever there is noticeable developments and in certain cases, it becomes matter of envy, their actions are brought in question by unscrupulous elements pretending to champion the cause of public good which could be a mere pretence to interfere with the management and for their personal gain. Therefore to provide a safeguard against such frivolous litigations actions, the public trust is brought within the ambit of section 92 of CPC. The legislative intent to protect such trusts from litigations is engrafted in the said provision. The mandate of Section 92 that grant of leave by Court is a pre-condition to maintain the suit cannot be taken as mere formality but requires serious considerations. Unless the plaintiffs indicate clearly circumstances of mal-administration; diverting of trust properties for personal benefits; committing any devastative act against the interest of the trust or exploiting the assets of the trust for the personal gain by the trustees, the machinery of administration provided under the implied or express trust shall not be interfered with. Unless the plaintiffs indicate clearly circumstances of mal-administration; diverting of trust properties for personal benefits; committing any devastative act against the interest of the trust or exploiting the assets of the trust for the personal gain by the trustees, the machinery of administration provided under the implied or express trust shall not be interfered with. Even amongst the trustees if there be division of opinion the majority decision must not be allowed to be defeated or ridiculed at the instance of minority of trustees unless it is noticed that the majority decision is detrimental and likely to frustrate the object of the trust and possible extinction. Besides locus of the plaintiff must also be ascertained. When the trust provides for benefit to several categories of persons apart from particular category, persons belonging to one particular category of beneficiaries cannot be considered as representing all the beneficiaries or community interest or the public at large and will have no locus. In the case of Swami Pramatmanand Saraswati and Anr. V. Ramji Tripathi and Anr. Reported in 1974(2) SCC 695 , the Apex Court observed thus: Para 10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a Public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that the mentioned in the section. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that the mentioned in the section. It is, therefore, clear that if the allegation of breach of trust in not substantiated or that the plaintiff has not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if tall the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N.Shanmukham Chetty v. V.M.Govinda Chetty, Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga, Sugra Bibi v. Hazi Kummu Mia and Mulla : civil Procedure Code Vol. 1, p.400). A suit whose primary object or purpose is to remedy the infringement of an individuals right or to vindicate a private right does not fall under the Section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to that purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92. 44. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92. 44. In the instant case, we see from the aims and objects of the trust is public charity, that means, apart from providing benefits to the persons belonging to Uppara Community it also provide similar benefits to students of other Community as also Schedule Caste and Scheduled Tribe. Therefore, the beneficiaries are not only Uppara Community but other Community as well. In the fact situation, persons representing Uppara Community cannot be held as the only persons entitled to the benefit of the trust. Hence, the respondents do not represent the interest of all the persons for whose benefit the trust is constituted. Thus, their locus is also in question. 45. For the reasons discussed in para supra, I accept the contention of the petitioners that the suit as brought contains no allegations supporting the reliefs grantable under Section 92 CPC and consequently, relief granted by the trial Court was unjustified. Grounds urged in the petition are accepted. The order dated 21-01-2006 in Misc. Case No.4/2005 on the file of the Principle District Judge, Mysore, granting relief under Section 92 (1) read with Section 151 Code of Civil Procedure to institute Suit against the trust called Donor Bellur Thammaiah’s Charities & Sri Swamy Ramadas Melu Sakkare Uppara Vidya Vardhaka Trust, Mysore, is hereby set aside. The suit filed by the respondents stands dismissed. In these circumstances, no order as to costs.