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Kesava Panicker Vs. Damodara Panicker and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtKerala High Court
Decided On
Case NumberA.S. No. 594 of 1969
Judge
Reported inAIR1976Ker86
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92
AppellantKesava Panicker
RespondentDamodara Panicker and ors.
Appellant Advocate K. Chandrasekharan and; K. Vijayan, Advs.
Respondent Advocate T.P. Kelu Nambiyar,; N.K. Sreedharan,; M.A.T. Pai,;
DispositionAppeal dismissed
Cases Referred and Edupuganti Raghavendra RaoMemorial High School Committee Gudlavalleru v. Potluri Atchayya
Excerpt:
.....- fact of registration of society could not change character of properties already constituted as trust properties - such properties had same character and therefore same were trust properties - held, by virtue of registration of society nature of trust properties does not change. - - the contention of the plaintiffs was that the school, the buildings, the land on which the school buildings stood as well as the playgrounds and all appurtenances and equipment and furniture and all the belongings of the school formed a public trust for a public purpose of a charitable nature; as well as the funds of the school did not belong to the appellant as is contended by him he was certainly liable to account for the property of the school including the monies and the direction to account..........the pre-sident of the society by the time the suit was filed and he contended that the keralasseri high school, its grounds, furniture etc. did not belong to the keralasseri high school society and that they were his private properties and further, that the property on which the school building stood was obtained by him under a registered lease from one mootha panicker in 1936 for the purpose of constructing buildings for a higher elementary school. defendants 2, 4, 5 and 6 who were members of the managing committee raised almost identical contentions. on the above contentions 9 issues were framed by the trial court and issues 1 and 7 related to the competency of the plaintiffs to file the suit and to the question whether the suit was maintainable. the factual question as to whom the.....
Judgment:

Govindan Nair, C.J.

1. This is an appeal by the first respondent in O. S. No. 1of 1968 of the Court of the District Judge, Palghat against the decree in the case in favour of the plaintiffs removing the appellant from the post of the President of Keralasseri High School Society and from that of the Manager and Correspondent thereof and directing him to render accounts of his management of the affairs of the said society and the school for the period commencing from 1st January 1963. The decree also declared that the plaintiffs, four in number who are respondents 1 to 4 in this appeal will be entitled to a scheme settled by the court for the management of the said society and the school on application made in that behalf. Further, the official receiver was directed to take possession of the properties of the said society and the school including the school building, their premises and playgrounds and other appurtenances as the Manager of the said school and manage the school.

2. The suit was filed with the sanction of the Advocate-General under Section 92 of the Civil Procedure Code. The contention of the plaintiffs was that the school, the buildings, the land on which the school buildings stood as well as the playgrounds and all appurtenances and equipment and furniture and all the belongings of the school formed a public trust for a public purpose of a charitable nature; in this case for educational purpose. The suit was also based on the contention that the properties of the school which have been managed by a society registered under the Societies Registration Act formed a trust of such a public nature. The appellant had become the Pre-sident of the society by the time the suit was filed and he contended that the Keralasseri High School, its grounds, furniture etc. did not belong to the Keralasseri High School Society and that they were his private properties and further, that the property on which the school building stood was obtained by him under a registered lease from one Mootha Panicker in 1936 for the purpose of constructing buildings for a Higher Elementary School. Defendants 2, 4, 5 and 6 who were members of the Managing Committee raised almost identical contentions. On the above contentions 9 issues were framed by the trial Court and issues 1 and 7 related to the competency of the plaintiffs to file the suit and to the question whether the suit was maintainable. The factual question as to whom the Keralasseri High School, its premises etc. belonged; whether to the said society, or to the first respondent as contested by him formed the subject-matter of issues 2 and 3. These were the main issues in the case apart from the question as to whether the appellant was liableto account (Issue 5) and whether he was liable to be removed (Issue 6).

3. The evidence in the case was examined in detail by the learned Judge and he had no hesitation whatever in coming to the conclusion that the Keralasseri High School was started by the public and it was being managed by the Keralasseri High School Committee. On the question whether the school premises also belonged to the society the District Judge found that the premises were comprised in Ex. B-27 verumpatton chit and will be difficult in the state of evidence to find that the Keralasseri High School Society has got title to the school premises. But the court further found that the Keralasseri High School Society certainly 'had got possession and control of the premises and that will be enough to enable the society to retain possession or to recover possession in the event of it being ousted from possession otherwise than in due course of law'.

4. Though the above findings have been challenged in the appeal memorandum only a very feeble attempt was made to sustain the challenge and on going through the evidence in the case we find the overwhelming weight of evidence, documentary and oral which were elaborately referred to by the lower court in detail fully supporting the findings entered by the Judge. We are not able to find any flaw in the reasoning of the lower court in regard to this matter. We therefore confirm the findings on issues 2 and 3.

5. When once it has been found that the school building and the furniture etc. as well as the funds of the school did not belong to the appellant as is contended by him he was certainly liable to account for the property of the school including the monies and the direction to account cannot also be interfered with. Considering the nature of the contentions raised by the appellant the direction to remove him from management must also stand. It is further essential that a scheme must be framed for the management of the school and the decree permitting that being done cannot also be altered.

6. All this we have said on the basis that the school and its properties and its monies formed a public trust of a charitable nature and that a suit such as the one envisaged by Section 92 of the Civil Procedure Code and which was the type of suit that was instituted -- it is not even suggested that this is not so--would be permissible and that the suit in question was maintainable and that the plaintiffs were entitled to sue. Regarding those questions the appellant's Counsel vehemently argued that there has been no trust at all justifying such an action. Our attentionwas invited to the decision in A.S. Krishnan v. M. Sundaram AIR 1941 Bom 312 and it was argued that the plaintiffs have no right to institute a suit of this type for 'the position of a society registered under the Societies Registration Act, is more like that of a club or a joint stock company. In order to redress a wrong done to the company or to recover monies or damages alleged to be due to the company, the action should prima facie be brought by the company itself'. The facts of the case were the following. A society was registered under the Societies Registration Act for the promotion of education. Not having sufficient funds to erect a building to house the school the society decided on issuing debentures. But this scheme failed. A general meeting of the society was called and a managing committee was elected at the meeting. The Managing Committee resolved to borrow money. The election of the Managing Committee and the decision of the Managing Committee were ratified at a general meeting held on 15th October 1939. The plaintiff, a member of the society filed the suit on his own behalf and on behalf of other members except the defendants who were the members of the managing committee challenging the above decision The court decided that since the alleged wrong was one done to the society as a body and that wrong not having infringed the personal rights of the plaintiff the society should be a party to the litigation and it was not competent to the plantiff either alone or representing himself and the other members of the society other than the defendants to bring an action without ascertaining the wishes of the society. This decision as is evident has no application to the facts of the case before us. For a suit under Section 92 there must be a public trust of the religious or charitable character. Herendra Nath Bhattacharya v. Kaliram Das AIR 1972 SC 246. The allegation in the plaint is that there is such a charitable trust and that the appellant acting as a trustee de son tort has misused the funds of the trust and have mismanaged the properties. If the existence of a trust as alleged is established the suit will have to be decreed. We shall presently consider whether there is such a trust as alleged. Before going to that question we shall refer to the other decisions as well relied on by counsel for the appellant.

7. Counsel very strongly relied on the decision in G. Chikka Venkatappa v. D. Hanumanthappa (1970) 1 Mys LJ 296. The decision is authority for the proposition that the formation of a society under the Societies Registration Act to carry out any charitable or useful or social purpose cannot be re-garded as amounting to creation of a trust for the application of Section 92 of the Civil Procedure Code. The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated. So it was urged that even if the properties were acquired by the Keralasseri High School Society there was no trust which would enable a suit being instituted in accordance with the provisions of Section 92 of the Civil Procedure Code. If we may say so, with great respect, the position stated in the decision is the correct one. That was stated with reference to the facts of that case and the conclusion arrived at after discussing the facts is seen from paragraph 21 of the judgment which we shall extract.

'21. On the evidence, therefore, there cannot be the slightest doubt that the construction of this building was purely and exclusively an activity and concern of the registered society called the Devanga Sangha. It was not and cannot be described as a matter in which the entire Devanga Community as Community took any interest or any steps in such a way as to make it possible to suggest that a specified item of property was dedicated by it, or some members thereof, to public purpose, viz. some welfare of the community at large.'

8. On the other hand 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. Though it was what was called the 'Keralasseri Food Committee'' that first made a move for the establishment of a High School by submitting Ext. A9 memorandum to the Chief Minister, Madras, the public look up the matter and there was a meeting of the public on the 1st February, 1947 and at that conference a resolution was passed to start a private school. A committee was formed for collecting funds either as donations or as share capital. Ext. A14 is the proceedings of that meeting embodying the decisions taken at the meeting. These proceedings clearly indicate that the intention was to create a trust, fund. It is so specifically stated in Ext. A14. We shall extract the relevant part.

'1. Nalu membermaril Kurayatha oru kammittiye nisehayichu avar February 7 am theeyathikkullil aa amsathil ninnum Sambha-vamvayo Sheyer chernnu Panamayo oru Trust Fund Undakki athinnu Vendaana aadapadikalnadappil varuthuvan ethra samgya pirinju kithemennu aal vivaram kanichu kazhiyun-nathum Klipthamaya oru list thayyarakki February 8 am theeyathi raviley 9 manikku Kizha-kkambram amsam kachenyil membermar elhavarum undayirippanum melal vendanna nadapadikal annu alochichu theerehappedu thuvanum nisehayichu'.

9. Long before the registration of the society funds were collected from the public towards share money is evidenced by Exts. A3, A4, A24 and B26 receipts. There have been contributions as well, has been established and this aspect has been discussed in the judgment of the court below. It is thus clear that there has been a clear intention to form a trust and that a trust fund was created and that the 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 trust may be created by any language sufficient to show the intention, and no technical words are necessary. The use of such words as 'intent' or 'purpose' Or a direction that a fund shall be applied by, or be at the disposal of, a person for the charitable purposes intended, may be as effectual as the use of the word 'trust'. Even the words 'authorise and empower' may be enough, upon the true construction of the instrument''. (See Tudor on Charities, Sixth Edition, Page 128).

10. No corporation would be erectedwithin the meaning of the word 'incorporated''occurring in Entry 44 of List 1 of the SeventhSchedule to the Constitution by the formationand registration of a society under the Societies Registration Act. The society Would continue to remain as an unincorporated societythough under the Societies Registration Actit would have certain privileges some of thembeing analogous to those of corporations. See Board of Trustees,Ayurvedic and Unani College, Delhiv. State of Delhi AIR 1962 SC 458. Ifthere was a trust created by the public for apublic charitable purpose namely establishing,maintaining and running a school the fact ofthe registration of a society could not changethe character of the properties which hadalready been constituted as trust propertiesand impressed with the trust and any additionto those properties must also have the samecharacter. We have therefore no hesitationin reaching the conclusion that a trust hasbeen created and the High School buildings,the land, all appurtenances, furniture, equipment and all other properties are trust properties.

11. Reference was made to the decisions in Association of Radhaswami DeraBaba Bagga Singh v. Gurnam Singh AIR 1972Raj 263 and Edupuganti Raghavendra RaoMemorial High School Committee Gudlavalleru v. Potluri Atchayya AIR 1957 Andh Pra10. In the light of what we have stated aboverelating to the facts of the case and on thebasis of the conclusions that we have reachedon those facts these decisions can have no application.

12. The suit is maintainable. By virtue of the registration of the society the nature of the trust properties has not been changed and on the allegations and the findings, a suit for the reliefs asked for is competent. We dismiss this appeal with costs.


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