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2015 DIGILAW 259 (KAR)

Shivabalayogi Maharaja Trust v. A. Satyaraju

2015-03-09

ANAND BYRAREDDY

body2015
Judgment The matter coming on for admission, is considered for final disposal having regard to the facts and circumstances. 2. Heard Shri R.B. Sadashivappa, learned counsel appearing for the appellant and the learned counsel appearing for the respondents. The appellant was the plaintiff before the Trial Court and a suit was filed in the name of Shivabalayogi Maharaja Trust. The suit was for ejectment of the defendants. It was contended that the plaintiff was the absolute owner of property bearing No.7 formed in land bearing Sy.No.42/1. There was a gift in favour of one Shivabalayogi Maharaja and he in turn had created the Trust and vested the said property in the Trust under a registered Trust Deed dated 4.2.1970, supplemented by a supplementary deed dated 24.08.1979. The suit was brought on behalf of the Trust through the working Chairman and Treasurer of the Trust. It was contended that the defendants were the employees of the Trust and were provided quarters in the suit schedule ‘B’ property and that they did not have any legal right to remain in possession of the suit property after their services were terminated. However, they started claiming a right to the suit properties and therefore, the plaintiff had initiated proceedings by issuing legal notices and demanding vacant possession of the suit properties, which the defendants resisted and therefore, the suit came to be filed. The defendants having entered appearance, had filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’, for brevity) contending that the plaint ought to be rejected as the plaint was not filed in the proper form and the person who had filed the suit on behalf of the Trust was not duly authorized to do so and that the court fee paid was insufficient and other contentions were raised. That application was dismissed holding that there was authority conferred under the Supplementary Trust Deed and that the suit was maintainable. That application was dismissed holding that there was authority conferred under the Supplementary Trust Deed and that the suit was maintainable. However, the suit having progressed, during the evidence of the plaintiff, the court below had suo motu taken up the point for consideration once again as to whether the suit was maintainable and has again addressed the question whether the suit by a Trust could be brought by any one authorized person on behalf of the Trust or whether all the Trustees ought to be made parties and has also incidentally considered the question whether the court fee paid was sufficient and on both counts, has held that the suit was not maintainable. 3. The learned counsel Shri R.B. Sadashivappa would point out that the alleged defects which were taken up for consideration by the court below were curable defects, if at all. Even otherwise, he would submit that if the court was of the opinion that the court fee paid was insufficient, the plaintiff ought to have been put on notice of any such deficit court fee and the point could have been addressed. Insofar as the opinion of the court below that the suit was not maintainable if the suit was brought on behalf of a Trust by any one authorized representative, it was a mere question of directing the plaintiff to implead all the trustees. It has therefore resulted in a miscarriage of justice, on the court below after having noticed that an earlier application seeking rejection of the plaint had been dismissed, to yet again opine otherwise when the law and procedure would indicate otherwise. 4. In this regard, the court below has referred to Section 47 of the Indian Trusts Act, 1882 in forming its opinion that all the trustees ought to have been made parties to the suit and secondly, there is reference to Section 92 of the CPC and the Court has also opined that the suit ought to have been brought in accordance with the procedure prescribed for a suit under Section 92 of the CPC. 5. From a plain reading of the order of the court below, the Trial Court has committed errors on the face of it. 5. From a plain reading of the order of the court below, the Trial Court has committed errors on the face of it. Insofar as the opinion that the suit was not maintainable if all the Trustees were not made parties, has been considered by the Trial Court itself on the earlier occasion in its order dated 27.06.2012 where it has referred to the powers conferred on a Trustee or the Administrator under the Supplementary Deed to bring the suit and therefore, there was no warrant for reconsideration on the question of maintainability on that count. Further, it is not in dispute that the Trust in question was a public trust and the court having referred to Section 47 of the Indian Trusts Act, 1882, was out of place, for it is evident from the very preamble to the Act that it is an Act to define and amend the law relating to private trusts. Therefore, on the face of it, reading Section 47 into the present proceedings was not tenable. Further, the opinion of the Trial Court that the suit ought to have been filed under Section 92 of the CPC, was also out of place. Section 92 is a special provision providing for cases of alleged breach of any express or constructive trust created for a public purpose or where the direction of the Court is deemed necessary for administration of such trust and the procedure thereon. The said section would have no application to the present situation where the Trust was seeking to protect its property. Therefore, the reference to Section 47 of the Indian Trusts Act or Section 92 of the CPC was not tenable. The CPC however under Order XXXI provides as follows: SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS “1. Representation of beneficiaries in suits concerning property vested in trustees, etc.—In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties. 2. But the Court may, if it thinks fit, order them or any of them to be made parties. 2. Joinder of trustees, executors and administrators.—Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them: Provided that the executors who have not proved their testator’s will, and trustees, executors and administrators outside India, need not be made parties. 3. Husband of married executrix not to join — Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.” 6. Since the Trust is created for the public benefit and the properties of the Trust are vested in the trustees, Rule 1 of Order XXXI would be applicable and the supplementary deed of the Deed of Trust specifically empowering the concerned to represent the Trust would certainly enable the suit being filed in the name of the named person. Consequently, the questions that were suo motu raised by the Trial Court at a stage when the questions were no longer relevant, is unfortunate and has resulted in a miscarriage of justice. Consequently, the appeal is allowed. The order under challenge is set-aside and the matter is remanded for fresh adjudication, in accordance with law. Insofar as the question whether there is any deficit of court fee payable, the point shall be addressed by the court after notice to the plaintiff and if there is any such deficit found, the plaintiff would be obliged to pay the same. Leaving the said question of the court fee open, the appeal is disposed of in terms as above.