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2015 DIGILAW 700 (KER)

Varathappan v. C. V. Simon

2015-06-17

P.B.SURESH KUMAR

body2015
JUDGMENT P.B. Suresh Kumar, J. 1. The original second plaintiff and additional plaintiffs 3 and 4 in O.S. No. 18 of 1986 on the file of the District Court, Ernakulam have come up in this appeal challenging the dismissal of the said suit. 2. The case of the plaintiffs in the suit is that they are the parishioners of the St. George's Orthodox Syrian Church, Chelakkara, hereinafter referred to as 'the church' for short and the church is a public charitable trust. According to the plaintiffs the first plaintiff is the Lay Trustee of the church and the second plaintiff is the Deacon of the church. It is alleged in the plaint that the church is a parish church of the Malankara Orthodox Syrian Church and the same is to be administered in accordance with the constitution framed by the Malankara Association on 26.12.1934. It is also alleged in the plaint that as per the terms of the constitution, the Vicars and Priests of the church are to be appointed by the Diocesan Metropolitan of the Malankara Church and the Lay Trustee is to be elected by the parish yogam and that the Vicar and the Lay Trustee are to be the joint trustees of the church. It is further alleged in the plaint that, of late, a few parishioners of the church formed themselves as a different group called 'Patriarch party' and began to defy the authority of the constitution of the church. It is further alleged that defendants 1 and 2 belonged to the patriarch party and they claim that the first defendant has been elected by the parish yogam of the church as the Lay Trustee. According to the plaintiffs, the first plaintiff is the lawfully elected Lay Trustee of the church and he is entitled to administer the affairs of the church with the second plaintiff who is appointed as the Vicar of the church by the Malankara Metropolitan and defendants 1 and 2 are causing obstruction to the administration of the church by them. According to the plaintiffs, the first plaintiff is the lawfully elected Lay Trustee of the church and he is entitled to administer the affairs of the church with the second plaintiff who is appointed as the Vicar of the church by the Malankara Metropolitan and defendants 1 and 2 are causing obstruction to the administration of the church by them. The following are the reliefs sought in the suit: A) That the plaint Chelakkara Church is to be governed under the constitution of the Malankara Orthodox Syrian Church that the second plaintiff is the vicar, that the first plaintiff is the lay kaikaran appointed under the said constitution and that the 1st plaintiff and the second plaintiffs the present vicar are the lawful co-trustees of the church; B) Restraining a decree of permanent injunction the 1st and 2nd defendants or any one else in the "Patriarch party in the plaint Chelakkara church from any way obstructing the administration of the Chelakkara church and its properties scheduled to the plaint by the 1st plaintiff and second plaintiff as the joint trustee thereof; C) Directing the contesting defendants to pay the plaintiffs their costs of this suit, and D) Granting such other decree and directions as may be deemed just and necessary. 3. The original first plaintiff died pending suit. The defendants 1 and 2 contested the suit, contending among others, that the suit is one coming within the scope of Section 92 of the Code of Civil Procedure, hereinafter referred to as 'the Code' for short, and therefore, the same is not maintainable as the plaintiffs have not obtained leave of the court to institute the suit. 4. In the light of the contention raised by defendants 1 and 2, a specific issue was raised as to the maintainability of the suit and the said issue was heard as preliminary issue and decided against the plaintiffs. Consequently, the suit was dismissed. The appellants are aggrieved by the said decision of the court below. 5. Heard the learned counsel for the appellants and the learned counsel for the fifth respondent. 6. The learned counsel for the appellants contended that there is no allegation of breach of trust in the plaint and as such the suit is not one coming within the purview of Section 92 of the Code. He also contended, relying on the decision in Abdul Alim Abed v. Mt. 6. The learned counsel for the appellants contended that there is no allegation of breach of trust in the plaint and as such the suit is not one coming within the purview of Section 92 of the Code. He also contended, relying on the decision in Abdul Alim Abed v. Mt. Abir Jan Bibi AIR 1928 Calcutta 368) that in the absence of any allegation of breach of trust, a suit would fall under Section 92 of the Code only where the court is to give direction in the nature of framing a scheme or otherwise for the administration of the trust. Relying on the decision of the Apex Court in Swami Parmatmanand Saraswati v. Ramji Tripathi : AIR 1974 SC 2141 ), the learned counsel further contended that the suit in the instant case is a suit instituted to vindicate the individual rights of the plaintiffs and such a suit would not fall under Section 92 of the Code. Relying on the decisions of the Apex Court in Harendra Nath Bhattacharya v. Kaliram Das AIR 1972 SC 246 ) and Chairman Madappa v. M.N. Mahanthadevaru AIR 1966 SC 878 ), the learned counsel further contended that the reliefs claimed in the suit do not fall within the scope of Section 92 of the Code and therefore, the impugned decision is unsustainable. 7. Section 92(1) of the Code reads thus: "92. 7. Section 92(1) of the Code 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 where 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 any 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; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquires; (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." A suit under Section 92 of the Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. It is a suit to vindicate the rights of the public. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the court are necessary for the administration thereof. It must also pray for one or other reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled, the suit would come within the ambit of Section 92 of the Code. [See Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai AIR 1952 SC 143 )]. It must also pray for one or other reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled, the suit would come within the ambit of Section 92 of the Code. [See Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai AIR 1952 SC 143 )]. It is settled that while examining the question as to whether the suit is one which comes within the ambit of Section 92 of the Code, one has to go beyond the reliefs claimed in the suit and comprehend the purpose for which the suit is instituted. [See Vidyodaya Trust v. Mohan Prasad R. AIR 2008 SC 1633 )]. It is also settled that the allegations in the plaint alone need be looked into to see whether the suit falls within the ambit of Section92 of the Code. With these principles in mind, I shall proceed to examine whether the suit in the instant case is a suit which comes under Section 92 of the Code. 8. The fact that the church is a public charitable trust is admitted by the plaintiffs in paragraph 2 of the plaint. Likewise, the fact that the suit was instituted without obtaining leave of the court is also not disputed. The first plaintiff, though died pending suit, his legal representatives have not come on record. As noticed above, the second plaintiff is the Vicar of the church. In the affidavit filed in support of I.A. No. 1725 of 2014 before this court, the second plaintiff has stated that he was removed from the church and one Rev.Fr. K.P. Issac was appointed as the Vicar of the church in his place. It is seen that the said Rev.Fr. K.P. Issac has later filed an application as I.A. No. 2502 of 2014 seeking orders to implead him as an additional appellant in this appeal to enable him to pursue the appeal. It is also seen that while the suit was pending, two persons filed applications seeking impleadment as additional plaintiffs in the suit on two different occasions to enable them to pursue the suit alleging that they have been elected as the Lay Trustees of the church. It is thus evident that the suit as instituted was not one for vindicating the individual or personal rights of the original plaintiffs at all. It is thus evident that the suit as instituted was not one for vindicating the individual or personal rights of the original plaintiffs at all. There is therefore no substance in the contention raised by the appellants that the suit was one instituted for vindication of the personal rights of the plaintiffs. 9. The contention of the appellants that the plaint does not disclose any allegation of breach of trust also cannot be accepted. As noticed above, the essence of the case set up by the plaintiff in the suit is that the church being a constituent parish church of the Malankara Orthodox Syrian Church, the same has to be administered in accordance with the constitution framed by the Malankara Association on 26/12/1934 and the defendants 1 and 2, in defiance of the constitution of the Church, formed themselves as a separate group, and attempting to administer the affairs of the church otherwise than by its constitution. Paragraphs 7 to 10 of the plaint reads thus: "7. Under the said governing constitution the vicars and priests of the Church are to be appointed by the Diocesan Metropolitan or when he is not available, by the Malankara is to be elected to such office by the Parish Yogam and the said election has to be approved by the Metropolitan. The 3rd defendant is the Vicar of the church appointed under the said constitution. The Vicar is to be in exclusive control of the church and cemetery dedicated for the religious uses only. The Vicar and the Lay Kaikars are to be the joint trustees of all income of the Church and its properties. Mattumpal Ittiachan, son of Vareed was the Lay Kaikaran of the Church elected and appointed to such office under the said governing Malan Kara Church constitution. He died on 3.12.1984. The 3rd defendant Vicar and the deceased Ittiachan both appointed under the said governing constitution were administering the income of the church as joint trustees. 8. In about 1974 some members of the Chelakkara Church styling themselves as 'Patriarch Party' in the parish in disregard of the decision of the Malankara Association, the court decision, the unanimous decision of the parish Yogam and the long continued administration under the said constitution, began to defy the authority of the said constitution, and the hierarchy appointed thereunder. 8. In about 1974 some members of the Chelakkara Church styling themselves as 'Patriarch Party' in the parish in disregard of the decision of the Malankara Association, the court decision, the unanimous decision of the parish Yogam and the long continued administration under the said constitution, began to defy the authority of the said constitution, and the hierarchy appointed thereunder. The deceased lay Kaikaran of the Church also in violation of the constitution under which he had come into office supported them. This led to certain disputes and plaint item No. 1 now remain in the custody of the Village Officer, the court receiver appointed in M.C.23/74 on the file of the Trichur Sub Divisional Magistrate Court. 9. On the death of the lay Kaikaran Ittiachan appointed and functioning under the said constitution on 3.12.1984, the parish Pothuyogam of the Chelakkara Church held under the said governing constitution on 30.12.1984 elected the Ist plaintiff as the lay Kaikaran of the church. The said election has been approved by the Diocar Metropolitan on 17.1.1985 and ever since, the Ist plaintiff along with the 3rd defendant vicar are entitled to and are in possession and management of the plaint properties except item I which now remain with the receiver appointed in M.C.23/74 on the file of the Trichur sub Divisional Magistrate Court. 10. The Ist and 2nd defendants are persons who belong to the above said "Patriarch party" in the plaint church. The Ist defendant claims that he has been elected by the "patriarch party" in the plaint church in a meeting of theirs and on the basis thereof is unlawfully obstructing the Ist plaintiff in his duties and functions as they lay Kaikaran of the Plaint church. Neither himself nor any body in the patriarch party nor any one in the plaint church has any right to obstruct the Ist plaintiff from functioning as the lay trustee in joint administration of the plaint church. The Ist plaintiff is the "lawful Lay Kaikaran of the plaint church entitled along with the 3rd defendant to administer the plaint trust. The Ist defendant has no claims as lay trustee of the church. He has not been elected by the plaint parish Yogam as Lay Kaikaran. His claim is only that some party in the church has elected him. The Ist defendant has no claims as lay trustee of the church. He has not been elected by the plaint parish Yogam as Lay Kaikaran. His claim is only that some party in the church has elected him. Only a lay Kaikaran elected by the parish Yogam convened and conducted under the above said governing constitution and approved by the Diocesan Metropolitan appointed under the Malankara Church Constitution is entitled to be the lay Kaikaran of the plaint church. Defendants 1 and 2 and the "patriarch party" to which they belong and who are represented in this suit have no right whatsoever to obstruct the Ist plaintiff functioning as lay trustee of the plaint church and as joint trustee along with the........." In the light of the provisions contained in Section 92 of the Code, the allegation in the plaint that the church has to be administered in accordance with the constitution framed by the Malankara Association on 26/12/1934 and the defendants 1 and 2, in defiance of the constitution of the Church, formed themselves as a separate group, and attempting to administer the affairs of the church otherwise than by its constitution amounts to an allegation of breach of trust. 10. Coming to the contention of the appellant that the reliefs sought in the suit are not reliefs coming within the ambit of Section 92 of the Code, I have no hesitation to hold that the relief of declaration sought by the plaintiffs to the effect that the plaint schedule church is to be governed as per the constitution of the Malankara Orthodox Syrian Church is in effect a prayer for settling a scheme for the administration of the church. Likewise, the relief of injunction restraining defendants 1 and 2 who are defying the constitution of the church from causing obstruction to the administration of the church in accordance with its constitution, is in effect a prayer for vesting the trust properties with its lawful trustees. The appeal, in the circumstances, is devoid of merits and the same is accordingly, dismissed.