IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MAY 2018 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No. 1132/2010 C/W REGULAR FIRST APPEAL No. 1139/2010 IN RFA NO. 1132/2010 BETWEEN SRI. MAHANTHASWAMIJI OF DEVANUR MUTT, AGED ABOUT 62 YEARS, DEVANUR MUTT, DEVANUR, NANJANGUD TALUK – 571 312, MYSURU DISTRICT.
…APPELLANT (By Sri. M. SIVAPPA, ADVOCATE, FOR M/s M. SIVAPPA AND ASSOCIATES, ADVOCATES) AND 1. VASUDEVAMURTHY R., S/O LATE RATTEHALLI RAMAPPA, AGED ABOUT 77 YEARS, PROPRIETOR, PRABHA TALKIES, MYSURU – 570 001.
2. BASAVARAJAPPA, AGED ABOUT 60 YEARS, AGRICULTURIST, HANUMANAHALLI, KOWLANDE HOBLI, NANJANGUD TALUK – 571 312, MYSURU DISTRICT.
3. A. RAMANNA, AGED ABOUT 60 YEARS, EX. MEMBER OF LEGISLATIVE COUNCIL, NO. 47, IV MAIN, YADAVGIRI, MYSURU CITY – 570 001.
4. G.H. NAYAK, AGED ABOUT 62 YEARS, RETIRED KANNADA PROFESSOR, NO. 487, ‘PREETHI’, BEHIND KAMAKSHI HOSPITAL, KUVEMPUNAGAR, MYSURU – 570 001.
5. R. GURU, AGED ABOUT 50 YEARS, PROP. PARTNER, VASU AGARBATHI, VANIVILASA ROAD, MYSURU – 570 001.
6. B.V. BALASUBRAMANYAM, AGED ABOUT 50 YEARS, EX. CORPORATOR, RASHTRAPATHI ROAD, NANJANGUD – 571 312.
7. DEVANOORU SHIVAMALLU, AGED ABOUT 50 YEARS, NO.3, ADHICHUNCHANAGIRI ROAD, KUVEMPUNAGAR, MYSURU – 570 001.
…RESPONDENTS (By Sri. Y.K. NARAYANA SHARMA, ADVOCATE FOR R1, R4, R5 AND R7;
Sri. R.S. RAVI AND NARENDRA GOWDA, ADVOCATE FOR IMPLEADING APPLICANT;
APPEAL AGAINST R3 & R6 ABATED VIDE ORDER DATED 28.1.2011) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.04.2010 PASSED IN O.S.NO. 71/1986 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MYSURU, PARTLY DECREEING THE SUIT OF THE RENDER ACCOUNTS.
IN RFA NO. 1139/2010 BETWEEN 1. K. SUBRAMANYAM, AGED ABOUT 72 YEARS, S/O SRI. KETTIMUTHUGOUNDER, AGRICULTURIST, RESIDING AMARAVATHIPALYAM, ERODE TALUK, PERIYAR DISTRICT.
2. T.R. KARTHIKEYAN, S/O SRI. K.S. RAMASWAMYCHETTIAR, RESIDING AMARAVATHIPALYAM, ERODE TALUK, PERIYAR DISTRICT.
…APPELLANTS (By Sri. S.M.BABU, ADVOCATE) AND 1. MAHANTHASWAMIJI OF DEVANUR MUTT, DEVANUR, NANJANGUD TALUK.
2. G. MAHESSWARA, MAJOR BY AGE, S/O LATE GANGAPPA, RESIDING AT HARADANAHALLI, CHANDAKAVADI HOBLI, CHAMARAJANAGAR TALUK.
3. G. SHADAKSHARA, MAJOR BY AGE, S/O LATE GANGAPPA, RESIDING AT HARADANAHALLI, CHANDAKAVADI HOBLI, CHAMARAJANAGAR TALUK.
4. SARVAJANIKA EDUCATIONAL TRUST BY ITS FOUNDER AND SECRETARY, SINCE DEAD BY PRESENT TRUSTEES:
a) R. VASUDEVAMURTHY, PRESIDENT, AGED ABOUT 75 YEARS, S/O LATE RATTEHALLI RAMAPPA, b) C. BASAVARAJAPPA, MAJOR, TRUSTEE & SECRETARY, c) A. RAMANNA, MAJOR, TRUSTEE, d) G.H. NAYAK, MAJOR, TRUSTEE, e) R. GURU, MAJOR, TRUSTEE, f) B.V. BALASUBRAMANYAM, MAJOR, TRUSTEE, g) DEVANURU SHIVAMALLU, MAJOR, TRUSTEE.
…RESPONDENTS (By Sri. M. SIVAPPA, ADVOCATE, FOR M/s M. SIVAPPA AND ASSOCIATES, ADVOCATES, FOR R1;
Sri. Y.K. NARAYANA SHARMA, ADVOCATE FOR R4 (a), (d), (e) & (g);
M/S RANGARAMU & ASSOCIATES, ADVOCATES, FOR R2; SRI K.VIJAYA KUMAR, ADV., FOR R3;
APPEAL AGAINST R4 (c) & (f) ABATED VIDE ORDER DATED 29.8.2012) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.04.2010 PASSED IN O.S.NO. 02/2002 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE SUIT FOR DECLARATION.
THESE RFAs COMING ON FOR FURTHER ARGUMENTS THIS DAY, THROUGH VIDEO CONFERENCING THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These two appeals, since arise from common judgment of the I Additional District Judge, Mysuru, in two original suits 71/1986 and 2/2002, are disposed of by a common judgment. The pleadings in both the suits in a nutshell are as follows : -
2.1. O.S.71/1986 is a scheme suit filed under Section 92 CPC. The first plaintiff, T.S.Subbanna dedicated all his property by forming a public trust called Sarvajanika Educational Trust, Vidyaranyapuram, Mysore. He founded the trust on 15.6.1965 with the object of promoting education at Mysore and other places. He started many schools at various places. He also established a boys’ hostel and a girls’ hostel at Mysore. He acquired properties by his own efforts and collected donations from philanthropic minded persons to see that the institutions started by the trust would not face financial difficulty. Since there was no proper document evidencing creation of a trust in the year 1965, a trust deed was executed and registered on 21.6.1980. The first defendant, Sri Mahanta Swamiji of Devanur Mutt was inducted as a trustee and made the President of the trust. In this deed, object of the trust, board of trustees, qualification to become trustees, functions of trustees and such other details were incorporated.
2.2. Again on 5.10.1984, a new trust deed was executed by renaming the trust as Sri Gurumalleshwara Sarvajanika Educational Trust and the trust was reconstituted. Another reason for formation of a new trust on 5.10.1984 was that one property had been omitted to be mentioned as trust property when trust was reconstituted on 21.6.1980 and it was also felt necessary to include that property. The trustees decided that the accounts of the trust had to be managed and operated both by the President and the founder trustees i.e. T.S.Subbanna, but the first defendant resolved that he should alone operate the accounts. The plaintiffs, being some of the trustees specifically state that the first defendant in his capacity as the President of the trust collected subscriptions from the public on behalf of the trust. The plaintiffs learnt that the first defendant collected Rs.30,000/- from Vaddagere area and received an amount of Rs.2,40,000/- towards compensation from Government in connection with submerging of a land situated in H.D.Kote Taluk under Kabini project. The first defendant also collected an amount of Rs.30,000/- at Muttige Hundi Village and more than a lakh of rupees at other villages in the name of educational institutions run by the trust. The plaintiffs alleged that the first defendant should have accounted all the monies he received, but he did not; rather he utilized the money for other purposes. The wet lands situated at Padukote Kaval Village in H.D.Kote Taluk also belongs to trust. The first defendant did not account the paddy yield received from this land.
2.3. The trust also owned 32 acres 9 guntas of land at Haradanahalli Village, Chamarajanagar Taluk. This land was leveled by the founder trustee by availing loan of Rs.5,000/- from Government in the year 1969 and he discharged it also. Since the said land was not productive, it was decided in a meeting held on 10.11.1985 under the Presidentship of first defendant that the said land should be sold and sale proceeds invested in a security that could provide good income to the trust. In the said meeting, the founder trustee was authorized to sell the said land for a price not less than Rs.5,500/- per acre. This resolution was signed by all the trustees who attended the meeting including the first defendant. On the basis of this resolution of the trust, the founder trustee, i.e., the first plaintiff entered into an agreement with Sri T.R.Karthikeya and Sri K.Subramanyam on 16.12.1985 for selling the said property to them at Rs.5,500/- per acre and received a sum of Rs.50,000/- towards advance and he credited this amount to his bank account at Syndicate Bank, Mysuru. He did not deposit this amount to the bank account of the trust as he anticipated that the first defendant who had the authority to operate bank account might appropriate the said amount to himself.
2.4. The plaintiffs’ further case is that the first defendant being aware of the resolution dated 10.11.1985, sold the land at Haradanahalli to defendants 5 and 6 on 6.1.1986 for a sum of Rs.70,000/- only. Therefore, the plaintiffs having noticed that the first defendant, being the President of the trust, was mismanaging the trust and misappropriating the trust property convened a meeting of the trustees on 19.1.1986. The first and third defendants attended the meeting and defendants 2 and 4 did not attend. The first defendant was asked to give explanation for selling the land in violation of the resolution of the trust. His explanation was not proper and convincing. Therefore, it was resolved in the said meeting that first defendant should not only be removed from the Presidentship but also from trusteeship. In the premise of these circumstances, the plaintiffs instituted a suit seeking a direction to first defendant to render accounts of the income and expenditure of the trust and other proceeds realized by him as the President of the trust; for removal of first defendant from the post of President and trustee; for appointing a new trustee in the place of first defendant and for a direction to deliver possession of all the properties of trust. The plaintiffs also prayed for removal of defendants 2 to 4 from the trusteeship if they supported the first defendant and appointing new trustees in their place. The plaintiffs also stated that they did not have objection if they wanted to get themselves transposed as co-plaintiffs.
3. Defendants 1 to 4 in their written statement admit that the first plaintiff founded the trust for public purpose and several educational institutions were established by the trust. They also admit that the trust established two hostels at Mysore. They contend that first plaintiff alone was not responsible for establishment of educational institutions. They admit that a trust deed came into existence on 21.6.1980, but they also state that it was resolved that the Head of Devanur Mutt should become the President of the trust and whoever would succeed as the Head of the Mutt would also become President of the trust. In regard to operation of the accounts of the trust, they contend that first defendant alone was authorized and that there was never an understanding that the first plaintiff and the defendant should operate and deny that at the instance of first defendant, a resolution was passed authorizing him to operate the accounts. With regard to collection of Rs.30,000/- at Vaddagere Village, it is contended that the first defendant collected that amount in his capacity as Head of Devanur Mutt from the devotees and disciples of the Mutt and not in the capacity of President of the trust. In so far as compensation amount of Rs.2,40,000/- is concerned, it is stated that the submerged lands belonged to the Mutt. Those lands had been acquired long back during the time of his predecessor, Sri Kothegala Shivabasappa Swamy and that he received the compensation as the head of Devanur Mutt. Relating to sale of lands at Haradanahalli, it is denied that the first plaintiff was authorized to sell the said land for a price not less than Rs.5,500/- per acre by a resolution dated 10.11.1985, rather it is contended that the trustees authorized the first defendant to sell the said land and that the sale of the land in favour of defendants 5 and 6 was not to the prejudice of the trust and that the first defendant remitted the sale consideration to the bank account of the trust.
3.1. It is specifically contended with regard to resolution dated 19.1.1986 that the plaintiffs forced and threatened him to put his signature to a paper, for removing him from Presidentship. In this regard it is contended that the first defendant cannot be removed from the Presidentship unless he ceases to be head of the Mutt. Another contention is that when the first defendant received compensation amount from the Government, the first plaintiff demanded for a certain amount to be given to him and as the first defendant refused, the plaintiffs resorted to suing the defendants on frivolous reasons.
4. O.S.02/2002 was initially instituted at Civil Judge’s Court, Nanjanagudu, where it was registered as O.S.116/1986. Later on it was transferred to Mysuru. In this suit, plaintiffs 1 and 2 are the intending purchasers of land at Haradanahalli Village by virtue of an agreement of sale executed by founder trustee, T.S.Subbanna. The third plaintiff is the trust. The first defendant in this suit is the first defendant in O.S.71/1986 and defendants 2 and 3 are purchasers of Haradanahalli Village land from the first defendant. The plaintiffs sued the defendants claiming reliefs of declaration that the sale deed dated 6.1.1986 executed by first defendant in favour of defendants 2 and 3 is not valid in law and binding on them and for its possession. It is pleaded in the plaint that in a meeting of the trustees held on 10.11.1985, it was resolved that the trust represented by its founder trustee T.S.Subbanna was authorized to sell the said land at a price not less than Rs.5,500/- per acre and accordingly the third plaintiff entered into an agreement with plaintiffs 1 and 2 on 16.12.1985 for selling the land to them for a consideration of Rs.1,75,000/- pursuant to negotiation dated 14.11.1985, on which day the plaintiffs 1 and 2 had paid Rs.30,000/- and after execution of the agreement, made further payment of Rs.20,000/-. Thus plaintiffs 1 and 2 made total payment of Rs.50,000/- towards advance of sale consideration. It is stated that the first defendant, having come to know of this transaction and knowing very well that he had no authority to deal with this land, sold the land to defendants 2 and 3 on 6.1.1986 for a consideration of Rs.70,000/-. This sale was in contravention of resolution of the trust dated 10.l1.1985. It is also stated that though the sale deed was executed on 6.1.1986, it was registered on 29.8.1986. The plaintiffs stated that this sale transaction was illegal, invalid and did not bind the interest of the plaintiffs.
5. The first defendant in his written statement admitted that the land belonged to the trust, but contended that since the said land was not productive, the trust committee consisting of third plaintiff and the first defendant decided to sell that land. The first defendant stated further that the third plaintiff alone was not authorized to deal with the land; he was the President of the trust in the capacity of Head of Devanur Mutt, and had the authority to sell the land for the benefit of the trust. Therefore, the sale made by him in favour of defendants 2 and 3 was not bad.
6. The defendants 2 and 3 also filed written statement contending that the first defendant had title and authority to sell the land to them and the sale in their favour cannot be challenged by the plaintiffs, and if plaintiffs 1 and 2 had any remedy, they should recover the advance amount paid by them to T.S.Subbanna.
7. The trial court framed the following issues in both the suits :-
Issues in O.S. 71/1986 1) Whether the plaintiffs prove that the acquired lands referred to in para 7 of the plaint were belonging to the Trust and that the 1st defendant was liable to properly account for the compensation amount received in respect of the said lands?
2) Whether the plaintiffs prove that the 1st defendant has not properly accounted for the amounts collected on behalf of the Trust from the General Public?
3) Whether the plaintiffs prove that the 1st defendant was not entitled to sell the properties mentioned in para 11 of the plaint in view of the Resolution dated 10.11.1985 of the Trustees?
4) Whether the plaintiffs prove that the sale of properties effected by 1st defendant in favour of defendant Nos. 5 and 6 under Sale Deed dated 6.1.1986 is opposed to the interests and objects of the Trust?
5) Whether the plaintiffs prove that the 1st defendant is liable to render accounts of income and expenditure from 21.6.1980 onwards?
6) Whether the plaintiffs prove that the 1st defendant is liable to be removed from the Trusteeship and also from the post of President of the Trust?
7) Whether the plaintiffs prove that defendants 2 to 4 are also liable to be removed as Trustees?
8) Whether the plaintiffs prove that it is necessary to appoint Trustees in place of defendant Nos. 1 to 4?
9) Whether the 1st defendant prove that he is the President of the Trust in his capacity as Head and Swamiji of Devanur Mutt and that he is not liable to be removed from the Presidentship?
10)Whether the plaintiffs prove that sale of properties in favour of defendant Nos.5 and 6 is not binding upon the Trust?
11)To what decree or order the parties are entitled?
Issues in O.S.No.2/2002 1) Do the defendants prove that the suit as brought is not maintainable for the reasons set out in para 2 of the written statement?
2) Do the defendants prove that the 1st defendant was competent to enter into an agreement and execute a sale deed in respect of the suit schedule properties?
3) Are plaintiffs 1 and 2 not entitled to ask for a declaratory decree and are the plaintiffs 1 and 2 barred from filing this suit?
4) Has this court no jurisdiction to entertain the suit?
5) Are the plaintiffs entitled to relief of declaration and injunction?
6) To what reliefs the parties are entitled to?
8. After appreciation of evidence, trial court came to conclusion that O.S. 71/1986 should be partly decreed and O.S. 2/2002 dismissed. By partly decreeing the suit O.S.71/1986, the trial court directed that the first defendant should be removed from Presidentship and the trusteeship of the trust; that the first defendant should handover possession of all the properties of the trust to the plaintiffs; that the first defendant should render accounts of income and expenditure and other proceeds realized by him in the capacity of President of the trust from 21.6.1980 till his removal from the post of Presidentship and rejected the plaintiffs’ further prayers for removal of defendants 2 to 4 from trusteeship and appointment of new trustees and declaration that sale deed executed by first defendant in favour of defendants 5 and 6. It also dismissed the suit O.S.2/2002. Hence these appeals by the first defendant in O.S.71/1986 and the plaintiffs in O.S.2/2002.
9. During pendency of the appeals, administrators were appointed for the management of the trust.
10. Two interlocutory applications pending consideration are I.A.No.5/2017, filed by one Sri Rama B.M. under Order I Rule 10 (2) read with Section 92 of CPC seeking himself to be impleaded as a respondent and I.A.1/2018 filed by the appellant in RFA No. 1132/2010 under Section 92 read with Section 151 of CPC for removal of first respondent – Vasudeva Murthy R from the trusteeship of the trust.
11. One more application filed by the appellant was I.A.2/2018 under Order XLI Rule 27 of CPC; the appellant sought a direction to be issued to first respondent as also all the three administrators of the trust to produce original resolution book of the trust pertaining to years 1985 and 1986 for the purpose of verifying the authenticity of Ex.P4 and Ex.P5. This application was considered on 7.2.2018, during the time when arguments on merits of both the appeals were in progress, and Sri Shashibimbha, one of the administrators of the trust who was present in the court, was directed to produce the resolution book. Sufficient time was given to him for its production, but it was not produced as it was not available. Thus, this application stood disposed of.
12. On merits of the appeals, the learned counsel for the appellant in RFA 1132/2010, Sri M.Sivappa, argued that the plaint in O.S.71/1986 is inherently bad as it is not in conformity with rules of pleadings with regard to describing the trust properties in separate schedules.
12.1. He submitted that founding of the trust by Sri T.S.Subbanna for public purpose and its reconstitution in the year 1980 and 1984 is not disputed, but contended that findings of the trial court that the appellant Sri Mahantha Swamiji mismanaged and misappropriated the trust property are not correct. He argued that the plaintiffs alleged mismanagement and misappropriation by the appellant and therefore, the burden of proving all the issues, except issue No.9 was on the plaintiffs. The trial court has wrongly appreciated the evidence by holding that the appellant/first defendant should have produced evidence. He mainly disputed the admissibility of Ex.P4 and Ex.P5, contending that these two documents, which are said to be extracts of resolutions of the trust, are not found in the original resolution book. The pages in between page No.64 and 68 are missing. Therefore, these missing pages indicate that some pages were removed from the resolution book for creating some resolution as per Ex. P4 and Ex.P5 to produce them before the court. Moreover, Vasudeva Murthy was not a party to Ex.P4. He cannot speak with regard to resolution found in Ex.P4 in the capacity of PW1. In Ex.P4, the name of T.S.Subbanna appears to have been subsequently inserted. This is very much evident from the difference in handwriting. Ex.P5 contains resolutions written in Kannada and English. When first defendant did not preside over the meeting for passing the resolution as per Ex.P5, and when it was written in the beginning that meeting was presided by Vasudeva Murthy, what was the necessity of writing again at the end that the appellant did not preside over the meeting? This shows that the resolution Ex.P5 could have been manipulated for the purpose of removing the appellant from the trust. Appellant did not attend the meeting. Therefore, it is his argument that both Exs.P4 and P5 are unbelievable documents. Evidence of PW2 should be totally rejected as he is an incompetent witness.
12.2. The learned counsel further argued that the appellant was authorized to sell the land at Haradanahalli and a resolution to this effect was passed on 14.7.1985. Based on this, he sold the said property and he spent the sale consideration amount for construction of compound around a property of the trust situate at Vidyaranyapura, Mysuru. He did not misappropriate this money. This was known to plaintiffs. Evidence of PW1 is very clear that this was known to him and other plaintiffs. The trial court has misdirected itself to hold that there is no proof with regard to resolution dated 14.7.1985.
12.3. He argued further that the plaintiffs have failed to prove that the defendant collected donations in the name of trust and did not account for them. It is also not proved that the submerged land under Kabini project belonged to trust. In fact, the said land belonged to Devanur Mutt and the plaintiffs cannot claim that amount. Therefore, it was his argument that the trial court has erred in giving findings against the appellant.
12.4. Sri M.Sivappa argued further that the trust should have been made party to the suit. It was a necessary party. The suit should have been dismissed.
12.5. The next point that he argued was that the plaintiffs have not challenged the findings of the trial court that the sale deeds executed by the appellant in favour of defendants 4 and 5 cannot be declared as invalid and illegal. They have neither preferred cross objection or a separate appeal. Hence, the findings of the trial court in this regard cannot be disturbed.
12.6. Lastly, he referred to I.A.1/2018 filed by him under Section 92 read with Section 151 CPC for removal of a trustee, i.e. PW1 Sri Vasudeva Murthy R, and argued that the report of the District Court is very clear that PW1 cannot claim refund of Rs.80,000/-. He does not deserve to continue as a trustee and therefore this application deserves to be allowed and PW1-Vasudeva Murthy should be removed from the trust. With these points, he argued for allowing the appeal RFA 1132/2010. He has placed reliance on many decisions which are as follows : -
1) Union of India vs Vasavi Co-op. Housing Society Limited and Others [AIR 2014 SC 937] 2) S.Guhan and Others vs Devi Arundale and Others [AIR 1988 Madras 1] 3) Sudhir G Angur and Others vs M.Sanjeev and Others [AIR 2006 SC 351] 4) Rudrawwa vs Balawwa and Another [1967 (1) Mys.L.J.71] 5) Prashant Ramesh Chakkarwar vs Union Public Service Commission and Others [(2013) 12 SCC 489] 6) Suresh vs Yeotmal Dist. Central Co-op. Bank Limited and Another [AIR 2008 SC 2432] 7) Thiru John vs The Returning Officer and Others [AIR 1977 SCC 1724] 8) Smt.S.V.Kunhima vs B.N.Viswanath [ILR 1996 KAR 1853] 9) Udit Narain Singh Malpaharia vs Additional Member, Board of Revenue, Bihar and Another [AIR 1963 SC 786] 10) Charan Singh and Another vs Darshan Singh and Others [AIR 1975 SC 371] 11) Chuba Temsu Ao and Others vs Nangponger and Others [AIR 1994 Gauhati 110] 12) Sri M.Narayana and Another vs Smt. Ramakka and Others [ILR 2016 KAR 2979] 13) Khetrabasi Biswal vs Ajaya Kumar Baral and Others [(2004) 1 SCC 317] 14) T.Panchapakesan (died) and Others vs Peria Thambi Naicker (died) and Others [AIR 1973 Madras 133] 13. Sri Y.K.N.Sharma, learned counsel appearing for respondents 1, 4, 5 and 7 in RFA 1132/2010 argued firstly that the trust was not necessary party to suit. The plaintiffs and the defendants are all trustees. Plaintiffs have not sought any relief against the trust. In fact, the plaintiffs are fighting in the interest of the trust. This is a suit under Section 92 CPC, whose scope is some thing different. A scheme has to be framed for appointment of trustees. Even if it is held that trust ought to have been made a party, it only becomes a proper party and not a necessary party.
13.1. It was his argument that Exs. P4 and P5 are extracts of the original resolution book. Loose sheets of resolution book cannot be marked while recording evidence unless the original resolution book was produced and marked. Probably, after marking the entire resolution book, it might have been returned to the trust on production of certified copies of relevant pages containing resolutions of the trust. Moreover, the appellant appears to have not taken any objection on Exs. P4 and P5 in trial court. If any objection had been taken, the trial court would have referred to it in the judgment. Hence, the objection raised by the appellants’ counsel in the appeal is untenable.
13.2. He argued that the plaint is in conformity with rules of pleadings. It is not always necessary that properties must be described in separate schedules. In the body of the plaint, a clear reference is given with regard to properties possessed by the trust and they are not disputed also.
Furnishing of measurement and boundaries was not necessary as the properties are very much identifiable.
13.3. The learned counsel, Sri Y.K.N.Sharma argued that the plaintiffs have proved their case on their own strength. The trial court’s findings in this regard are not erroneous. It has held that evidence of PW1 in particular is acceptable and then come to conclusion that appellant/first defendant’s case cannot be accepted so far as misappropriation and mismanagement is concerned. He argued that the appellant was very much present when resolutions as per Ex.P4 and Ex.P5 were passed. Being aware of the resolution as per Ex.P4, he should not have sold the land at Haradanahalli and therefore the said sale was in violation of the resolution of the trust. The trial court’s finding in this regard is very much clear. He further argued that the appellant, even did not credit Rs.70,000/- that he received after selling Haradanahalli land to the bank account of the trust. His stand is that he spent that amount for constructing a compound around a trust property at Vidyaranyapura by engaging a contractor, Shivabasappa.
This contractor should have been examined. In this regard the learned counsel further argued that the appellant would rely upon a resolution dated 14.7.1985 which authorized him to sell the land. This specific stand of appellants should be out rightly rejected as he has not pleaded about it, and for the first time he mentioned it in his examination-in-chief. This evidence cannot be considered for want of pleading. Even no document is produced to prove the resolution dated 14.7.1985. Therefore, he argued that the findings of the trial court on this point is very much sustainable.
13.4. Then with regard to the amount of Rs.2,40,000/- that the appellant received towards compensation, Sri Y.K.N.Sharma argued that the acquired land belonged to the trust. The appellants should have remitted that money to the bank account of the trust. If the land belonged to the Mutt that he heads, nothing prevented the appellant from producing a document to prove that the land belonged to Mutt. Likewise, the appellant collected donations at many places in the name of trust and did not account for them. The appellant who adduced evidence as DW1 admitted that Sri T.S.Subbanna was a true Gandhian and he never spoke untruth. Ex. P6 to P15 throw light on the personality of Sri T.S.Subbanna. Therefore, the trial court has rightly appreciated the evidence to come to conclusion that the appellant did not act in the interest of the trust and he deserves to be removed from the Presidentship of the trust.
13.5. Sri Y.K.N.Sharma argued that the trial court erred in giving a finding that the sale deed executed by the appellants in favour of defendants 5 and 6 cannot be declared as invalid. His point of argument was that this finding is contrary to its another finding that the sale was in violation of resolution as per Ex.P4. The resolution of the trust is the deciding factor. He further argued in this regard that even though the plaintiffs have not preferred cross objection, the said point can be urged in accordance with Order XLI Rule 22 of CPC. The plaintiffs 1 and 2 in O.S. 2/2002 have questioned the sale. One of the plaintiffs in the said suit is trust. Therefore, the court can mould the relief appropriately in the appeal in the interest of justice.
Canvassing the above points, he argued for dismissing the appeal RFA 1132/2010.
13.6. On the application, I.A.1/2018, Sri Y.K.N.Sharma argued that the evidence given by PW1-Raju in the enquiry held by the District Court shows that Vasudeva Murthy spent money for making payment to some teachers working on contract basis and also to meet expenditure of the hostels. In fact, he did not want refund of the money, but the committee decided to pay back the amount. The application filed by the appellant is misconceived, and not maintainable. He also argued that the appellant must be directed to return Rs.70,000/- as also Rs.2,40,000/- with interest to the trust.
13.7. In support of his argument, he has relied upon the following decisions : -
1) Sanikam Narayana Reddy vs Govinda Reddy and Others [1963 (2) Mys. L.J.275] 2) State of Punjab vs Nathu Ram [AIR 1962 SC 89] 3) The General Manager, South Central Railway, Secunderabad and Another vs A.V.R.Siddhanti and Others [AIR 1974 SC 1755] 4) Bachhaj Nahar vs Nilima Mandal and Others [AIR 2009 SC 1103] 5) Chenchu Rami Reddy and Another vs Government of Andhra Pradesh and Others [(1986) 3 SCC 391] 6) R.Venugopala Naidu and Others vs Venkatarayulu Naidu Charities and Others [1989 Supp (2) SCC 356] 7) Anil Rishi vs Gurbaksh Singh [AIR 2006 SC 1971] 8) Ram Sarup Gupta (dead) by L.Rs vs Bishun Narain Inter College and Others [AIR 1987 SC 1242] 14. In RFA 1139/2010, the learned counsel for appellant Sri S.M.Babu argued that the trial court has wrongly held that the appellants 1 and 2 being the agreement holders cannot seek declaration with regard to validity of sale deeds executed by the first respondent i.e., the appellant in RFA 1132/2010. Having held that the sale made by him was in contravention of resolution passed by the trust dated 10.11.1985, it should not have dismissed the suit O.S.2/2002. The trial court failed to notice that in this suit not only the agreement holders are parties, but the trust is also a party, and it can certainly challenge the sale deed. Therefore, it was his argument that this finding of trial court is erroneous.
14.1. His further argument was that another finding of the trial court that the agreement holders should have filed a suit for specific performance is not maintainable. He argued that the trial court failed to notice that the trust never refused to execute the sale deed as per its resolution, but before Sri T.S.Subbanna executed a sale deed, the first respondent sold the land and this was the reason for sale deed in favour of appellants being not executed. Even now the trust is ready, hence the appeal deserves to be allowed.
15. The learned counsel for respondents 2 and 3 in RFA 1139/2010 argued that respondents 2 and 3 are bona fide purchasers from respondent No.1. The trial court has rightly come to conclusion that declaratory relief cannot be granted. They argued for dismissal of the appeal.
16. Sri M.Sivappa, learned counsel replied that if appellant in RFA 1139/2010 was removed from Presidentship by passing a resolution as per Ex.P5, there was no need to file a suit. Very institution of the suit shows that no such resolution was passed and even if it was passed, it was in violation of principles of natural justice as no opportunity was given to the appellant to substantiate his stand.
17. Sri Y.K.N.Sharma, further submitted that necessity to institute suit arose as the appellants disputed the resolution and did not step down from the office of President of Trust. He argued that a new scheme for administration of trust may be directed to be framed as majority of trustees are now dead.
18. Before raising points for discussion, I would like to make clear that the principles in most of the decisions cited by the learned counsel for parties are settled and I do not think a reference must be specifically made to all the decisions. Only those decisions which are relevant and apt on the point under discussion will be referred to. One point of argument of learned counsel Sri M.Sivappa about necessity of describing the properties in a separate schedule does not require to be dealt with in detail. Basically this is a suit for removal of first defendant Mahanta Swamiji from the trust in the back ground of certain allegations. In that context, reference is made to some of the properties of the trust. The existence of these properties and their identity is not in dispute. Therefore, it was not necessary for describing those properties in a schedule appended to plaint.
19. The points that arise for discussion are as follows:-
(i) Should the Trust have been made a party to the suit O.S.71/1986?
(ii) Is the conclusion of the trial court that appellant in RFA 1132/2010 should be removed from the trust correct?
(iii) Has the trial court rightly denied the relief of declaration with regard to validity of sale deed dated 6.1.1986 executed by appellant in RFA 1132/2010 who is defendant No.1 in O.S.71/1986 and O.S.2/2002?
(iv) Can’t this court mould the relief without cross objections being filed by the respondents?
(v) Whether the application filed under Order I Rule 10 (2) of CPC as per I.A.5/2017 can be considered?
(vi) Whether application I.A.1/2018 filed under Section 92 read with Section 151 of CPC for removal of Sri Vasudeva Murthy from trusteeship can be considered?
(vii) What order?
Point No.(i):-
20. Argument of the learned for appellant Sri M.Sivappa was that the trust is a necessary party and in its absence, suit is not maintainable. This was countered by Sri Y.K.N.Sharma that trust was not necessary to be made a party, and even if it was required to be made a party, it could have been impleaded as a proper party and not a necessary party. It is well settled now that in the absence of necessary party, suit cannot be decided at all. Proper party is one whose presence helps to decide a suit, his absence is not fatal to the suit. In the instant case, i.e., O.S.71/1986, the trust is not made a party. This is a suit under Section 92 of CPC, for removal of appellant, i.e., the first defendant and defendants 2 and 4 from the trust. The plaintiffs are also trustees. When the suit was filed, all the trustees were before the court, some of them being as plaintiffs and others as defendants. The plaintiffs made certain allegations particularly against appellant/first defendant. The plaintiffs are interested in the trust, they wanted the trust to be managed properly by the appellant being its President. Therefore, it is clear that the plaintiffs did not claim any relief against the trust. The plaintiffs were the persons interested in the smooth and proper management, administration of the trust. Such being the case, the trust, which is a legal entity, need not be made a party. Even if its presence can be said to be required, it is only in the capacity of proper party and not a necessary party. Absence of proper party is not fatal to suit. I find it necessary to refer to two judgments cited by Sri M.Sivappa on the point that trust is a necessary party. In S.GUHAN AND OTHERS vs RUKMINI DEVI ARUNDALE AND OTHERS [AIR 1988 MADRAS 1], it is held that Kalakshetra, which was trust, should have been impleaded as party and in its absence the suit deserved to be dismissed. If the facts of the said case are considered, what is found is that the very identity of the trust was in question. A society registered under Societies Registration Act was also in picture, and it was stated that the society was formed in relation to academic activities of the trust. Later on the plaintiff stated that it was the society which was impleaded. All the trustees were also not made parties. Therefore, in these set of circumstances, it was held that the presence of trust was absolutely necessary.
21. The other judgment is of the Hon’ble Supreme Court in SUDHIR G ANGUR AND OTHERS vs M SANJEEV AND OTHERS [AIR 2006 SC 351]. Here the trust was a party to the suit and in the appeal, trust which was respondent No.4 was deleted from the array of parties. Therefore, the appeal was dismissed. This judgment is not applicable.
22. In the case on hand, existence or identity of trust is not in dispute. No relief is sought against the trust, rather the plaintiffs’ suit is in the best interest of the trust. All the trustees were impleaded. In a circumstance like this, even if trust was made party, its presence was only formal being a proper party. Suit filed under Section 92 of CPC is representative in character; whether a trust requires to be made a party or not depends on nature of dispute. When a trustee or some trustees are sought to be removed in the background of allegations of mismanagement or misappropriation of trust property, it is enough if such trustees are arrayed as defendants. Hence, this point is answered in negative.
Point No. (ii):-
23. The allegations made against the appellant are that he collected donations at various places in the name of trust and did not account for them, that he also did not remit the compensation amount of Rs.2,40,000/- and that he sold the land at Haradanahalli for a meager amount of Rs.70,000/- flouting the resolution dated 10.11.1985. The burden of proving the issue framed in this regard is definitely on the plaintiff. Perusal of the judgment of the trial court shows that misappropriation by the appellant is proved. It has held that the appellant collected donations, that he also received the compensation amount in respect of the land belonging to trust, and that he sold the land in utter disregard for the resolution dated 10.11.1985. So far as the first two allegations are concerned, there are no documents, the trial court has simply believed the oral testimonies of plaintiffs’ witnesses. It has also taken into consideration the answers given by DW1 (appellant) in his cross-examination about personality of the founder of the trust Sri T.S.Subbanna, who was a Gandhian and never lied.
There is nothing wrong in drawing this inference. But, what requires to be mentioned particularly is that at least with regard to receiving of compensation amount of Rs.2,40,000/- the burden was very much on the plaintiffs in O.S.71/1986 that a land belonging to trust was acquired by Government. The acquired land was an agricultural land. A document standing either in the name of Subbanna or the trust could have been produced. Appellant contended that the land belonged to Mutt. The initial burden was on the plaintiffs. It is true that the appellant who adduced evidence as DW1 has given some evasive answers when he was questioned with regard to acquired land. In the absence of documents showing that the land belonged to trust or Subbanna, it is not possible to draw inferences based on certain evasive answers that the land belonged to trust and that the appellant should have credited that amount to the trust account. Therefore, it is difficult to sustain findings of the trial court to this extent.
24. However, in regard to selling of Haradanahalli land by the appellant, the trial court’s findings are unassailable. It has held that a resolution as per Ex.P4 was passed on 10.11.1985 to the effect that the land should be sold for a price not less than Rs.5,500/- per acre and that the appellant, who was a party to this resolution, violated it and sold the land for an amount of Rs.70,000/-. The learned counsel for the appellant, Sri M.Sivappa, disputed the very resolution, and argued vehemently that Ex.P4 written on a sheet of paper could not have been marked. He also pointed out that in the resolution book, the pages from 64 to 68 are missing, and probably for this reason, he made an application under order XLI Rule 27 CPC for production of resolution book. On 7.2.2018, while hearing the arguments, one of the administrators Sri Shashibimbha, undertook to produce the resolution book, but it was not produced. A submission was made orally on a subsequent date that resolution book was not available.
25. Now, in regard to Ex.P4, it can be stated that the appellant cannot dispute it. The learned counsel’s argument that Ex.P4 should not have been admitted in evidence cannot also be accepted. It appears that no objection was taken when it was marked by the trial court, which has clearly mentioned in the judgment that a certified copy of resolution was produced. Ex.P4 is a certified copy issued by the court. Whenever a resolution of a trust has to be proved, the resolution book should be produced and marked and a resolution of a particular date in question can be given a sub exhibit number. This is the procedure, but if this procedure was not followed, the document cannot be disbelieved, as it is only a procedural irregularity. It can also be demonstrated that the appellant is not in a position to dispute Ex.P4, because in the written statement filed by him in O.S.2/2002 (old number O.S.116/1986), his clear contention is as follows : -
“para 4. It is further submitted on behalf of the first defendant that as the properties referred to in the plaint were not productive, it was decided by the trust committee consisting of the third plaintiff and the first defendant to sell the same. But it is not correct to aver that the third plaintiff alone was authorized to sell the schedule properties after negotiating with respective purchasers for a price not less than Rs.5,500/- per acre”.
This shows that there was a resolution, and if he denies Ex.P4, it cannot be believed. Moreover, Ex.P4 contains signature of appellant, but the learned counsel Sri M.Sivappa vehemently argued that appellant was not a party to the said resolution. This argument is also not acceptable. If signature found on Ex.P4 is compared with signature found in written statement, an inference can be drawn that it is the signature of appellant only.
26. It was argued that PW1 and PW2 Vasudeva Murthy and G.H.Nayak respectively were incompetent witnesses. Very specifically it was pointed out by Sri M.Sivappa that PW1 cannot speak about Ex.P4 as he did not participate in the meeting held on 10.11.1985.
27. So far as PW2-G.H.Nayak is concerned, it is to be stated he speaks more about personality of founder trustee Sri T.S.Subbanna. To this extent his evidence can be considered, though he may not be aware of other transactions of the trust. But the evidence of PW1 cannot be discarded. Just because he was not present on 10.11.1985 when a resolution was passed as per Ex.P4, he cannot be called an incompetent witness. He is a trustee and even if he did not attend the meeting dated 10.11.1985, it cannot be said he cannot give evidence. It is not the case that PW1 never attended any meeting and that he was not aware of the affairs of the trust. His evidence is very much believable. He was a competent witness even with regard to Ex.P4.
28. When Ex.P4 is proved, a question arises whether the appellant could have sold the land? The appellant’s contention is that he too was authorized to sell and not that Subbanna alone was authorized to sell; according to him the name T.S.Subbanna was inserted in Ex.P4 subsequently. The trial court has given a finding that even if the name of T.S.Subbanna can be assumed to be not there, still the resolution of the trust to sell the land at a certain minimum price remains. It has held that appellant relies upon a resolution dated 14.7.1985 and there is no pleading to this effect and no proof is also produced. This finding of trial court, in my opinion, is not incorrect. Ex.P4 is a resolution passed by the trustees to the effect that Haradanahalli land must be sold at a minimum price of Rs.5,500/- per acre. Even it is assumed that the appellant was also authorized, he could not have sold it less than this price. The appellant, rather relies upon another resolution dated 14.7.1985, about which he has not pleaded. Of course he has stated that the trustees authorized him to sell, but he has not mentioned the date specifically about resolution passed on 14.7.1985. Even if he had produced a document as a proof it could not have been considered for want of pleading. The trial court has further observed that in the sale deeds executed by the appellant, there is no reference to resolution dated 14.7.1985. This is a very apt observation and, therefore the findings thus recorded have to be sustained.
29. Further, it has to be noted that the appellant did not account for Rs.70,000/- that he received from his purchasers. Even with regard to this, his stand is conflicting. In the written statement, he has pleaded that he credited the consideration amount to the account of the trust, but while adducing evidence he stated that he spent that money for constructing a compound around a trust property at Vidyaranyapura. He has stated that he paid the money to a contractor by name Shivabasappa who has not been examined. This contradictory stand taken by appellant makes him an untrustworthy, and this is a clear instance of misappropriating the trust property.
30. Having noticed the conduct of appellant being against the interest of the trust, the trustees again met on 19.1.1986 to discuss this issue. Ex.P5 is the resolution passed on that day. Appellant disputes this resolution stating that it was passed in his absence and thereby he has taken a contention that he was denied of an opportunity to offer explanation. But, in the cross-examination, he admits that clause 17 (c) of the trust deed provides for removal of trustee if he claims trust property as his own and that he attended the trust meeting held on 19.1.1986, and further that every trustee is bound by the resolution. Yet he took a stand challenging the resolution and this necessitated filing of the suit. Ex.P5 cannot be ignored.
31. The trial court has come to conclusion that the appellant deserves to be removed as he acted detrimental to the interest of the trust. It has referred to clause 17 (c) of the trust deed marked as Ex.P2. The contention of appellant is that he cannot be removed from the office of President because he is the Mathadipati of Devanur Mutt and the trust deed provides for only Mathadipatis in succession being appointed as President. This contention cannot be accepted. Firstly, the President is a trustee also. Clause 17(c) of Ex.P2 states that a trustee can be removed if he acts detrimental to the interest of the trust and treats the trust property as his own. Moreover in a suit filed under Section 92 of CPC, any trustee can be removed and any person can be appointed as trustee. Therefore, I concur with the findings of the trial court that the appellant/first defendant is liable to be removed. Point No. (ii) is answered in affirmative.
Point Nos. (iii) & (iv):-
32. In so far as validity of sale deeds executed by appellant on 6.1.1986 in favour of defendants 4 and 5 in O.S.71/1986 are concerned, it appears that trial court’s findings are in conflict with its earlier findings on issues 3 and 4 in O.S.71/1986 and issue No. 2 in O.S.2/2002. Having held that the first defendant had no authority to execute sale deeds, it should have held that the sale deeds did not bind the plaintiffs. It has proceeded on the footing that the defendants 4 and 5 in O.S.71/1986 were purchasers without knowledge of the resolution dated 10.11.1985. The meaning that can be gathered from this observation is that they were bona fide purchasers. The trial court has also held that the plaintiffs 1 and 2 should have filed a suit for specific performance. It is difficult to concur with these findings. What is involved is trust property. When a resolution was passed that the land should be sold at a certain price, no trustee can take a decision of his own to sell it at lesser price. If it was found that the price fixed by the trust was not able to be fetched, the trust could only have taken a decision to sell the land at a price less than the one fixed as per Ex.P4. The extent of care and vigilance to be taken while dealing with public property is made clear by the Hon’ble Supreme Court in the case of CHENCHU RAMI REDDY AND ANOTHER vs GOVERNMENT OF ANDHRA PRADESH AND OTHERS [(1986) 3 SCC 391], a decision cited by Sri Y.K.N.Sharma. It is held as below : -
“Public officials and public-minded citizens entrusted with the care of 'public property' have to show exemplary vigilance. The property of religious and charitable endowments or institutions must be jealously protected, for a large segment of the community has beneficial interest in it (that is the raison d'etre of the Act itself). The authorities exercising the powers under the Act cannot afford to take things at their face value or make a less than the closest- and-best-attention approach to guard against all pitfalls. Sale by private negotiations which will not be visible to the public eye and may even give rise to public suspicion should not therefore be permitted unless there are special reasons to justify doing so. And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment.”
33. In another decision of the Supreme Court, in the case of R.VENUGOPALA NAIDU AND OTHERS vs VENKATARAYALU NAIDU CHARITIES AND OTHERS [1989 SUPP (2) SCC 356] arising out of suit for removal of trustees on ground of fraudulent sale of trust property, it has been held as below :
“The property of religious and charitable endowments or institutions must be jealously protected because large segment of the community has beneficial interest therein. Sale by private negotiations which is not be visible to the public eye and may even give rise to public suspicion should not, therefore, be permitted unless there are special reasons to justify the same. Care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment.”
34. This being the position so far as trust properties are concerned, the trial court should not have held that the sale cannot be set aside or declared as not binding on the trust. The defendants 4 and 5 cannot be called purchasers without notice of trust resolution and hence the sale in their favour cannot be set aside. Even if they did not know the resolution, they cannot claim protection because what is involved is trust property and the appellant had no authority to sell it. This is not a suit for specific performance to say that interest of bonafide purchasers should be protected. The trial court’s conclusion that the plaintiffs 1 and 2 in O.S. 2/2002 should have filed suit for specific performance cannot be upheld. As rightly argued by the counsel for appellant in RFA 1139/2010, there was no denial by the trust to execute the sale in favour of the said plaintiffs 1 and 2. But the question is whether they can claim declaration.
Before meeting this point, it is necessary to discuss one point argued by learned counsel, Sri. M. Sivappa. He argued that in RFA 1132/2010, the respondents have not filed cross objection under Order XLI Rule 22 of CPC and therefore they cannot question the findings of the trial court with regard to validity of sale deed. Sri. Y.K.N. Sharma replied that even without preferring cross objection, a finding on an issue can be questioned in an appeal as provided in Order XLI Rule 22 CPC. He further submitted that the plaintiff No.3 in O.S.No.2/2002 is the trust. Sri. Babu, learned counsel for appellants also supported the argument of Sri. Y.K.N. Sharma.
35. I do not think that argument of Sri. M. Sivappa can be upheld. Although it is true that the plaintiffs in O.S. 71/1986 and plaintiff No.3 in O.S. 2/2002 have not filed cross objection in either of the appeals, they are not precluded from questioning the relevant issue which is answered against them. Indeed the plaintiffs 1 and 2 in O.S. 2/2002 cannot question the sale deed executed on 6.1.1986 by appellant, but the other trustees or the trust itself can question it. Order XLI Rule 22 of CPC very clearly envisages that a respondent in an appeal may not only support a decree but also state that the finding against him in respect of an issue ought to have been in his favour. Order XLI Rule 33 of CPC has a wider amplitude than Order XLI Rule 22 of CPC. The appellate court has the power to pass any decree or make any order which ought to have been passed as the case may require and this power may be exercised in favour of all or any of the respondents or parties although they have not preferred appeal or objections. In this context, I find it useful to refer to two decisions of the Supreme Court.
36.1. In CHAYA vs BAPUSAHEB [(1994) 2 SCC 41], it is held as below : -
“Rule 33 of Order 41 of CPC is based on a salutary principle that the appellate court should have the power to do complete justice between the parties. The object of the rule is also to avoid contradictory and inconsistent decisions on the same questions in the same suits. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or cross-objection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule”.
36.2. In DELHI ELECTRIC SUPPLY UNDERTAKING vs BASANTI DEVI AND ANOTHER [(1999) 8 SCC 229], it is held : -
17. In our approach we can also draw strength from the provisions of rule 33 of Order 41 of the Code of Civil Procedure which is as under :
"33. Power of court of appeal. - The appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees :
Provided that the appellate court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."
18. This provision was explained by this court in Mahant Dhangir v. Madan Mohan 1987 Supp(SCC) 528 in the following words (page 534):
"The sweep of the power under rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words 'as the case may require' used in rule 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint ?
We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these : that the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities."
19. The conditions as laid in provision of Order 41, rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by rule 33, the court cannot be found wanting when it comes to exercising its powers.”
37. If the above principles are applied, since the property belongs to public trust and that the appellant in RFA 1132/2010 had no authority to execute the sale deed, the relief can be properly moulded notwithstanding that cross objections are not filed and that the plaintiffs No.1 and 2 in O.S.No.2/2002 have no right to seek declaration as they are only agreement holders. The sale cannot be upheld; the defendants 4 and 5, who cannot be called bona fide purchasers, cannot retain property with them. If discretion is not exercised as envisaged in Order XLI Rule 33, there will be complete failure of justice. Therefore, points (iii) and (iv) are answered in negative.
Point No. (v) 38. The applicant has complained mismanagement by one of the administrators namely Basave Gowda. The trial court has ordered that the administrators have to continue till a scheme is framed. The administrators have to furnish accounts to the new trustees. If it is found that the said administrators have mismanaged and misappropriated the trust property, action can be taken against him at that stage. No purpose will be served if the application is entertained in this appeal. It requires enquiry. Hence, this application cannot be entertained, it deserves dismissal.
Point No. (vi):-
39. The appellant in RFA 1132/2010 has made application, I.A.1/2018 under Section 92 read with Section 151 CPC for removal of Vasudeva Murthy R as a trustee of Sarvajanika Education Trust. I do not think this application can be entertained. It appears that this application has been made pursuant to a report given by the District Judge who was directed by this court to give a report when the said Vasudeva Murthy claimed refund of Rs.80,000/- stating that he had spent that amount for meeting the expenses of the trust. The report of the District Judge is that there is no proof for Rs.80,000/- being spent by Vasudeva Murthy. Therefore, the appellant alleges that Vasudeva Murthy is not a trust worthy person to continue as a trustee.
40. The fact remains that most of the trustees are now dead. A new scheme for appointment of trustees has to be framed. Therefore, the District Court, while framing a scheme can take a suitable decision either to continue Vasudeva Murthy as a trustee or not in the light of the report of the District Court and other circumstances. It is also made clear that the report of the District Judge itself is not a bar for continuing him if he is otherwise found to be suitable for being continued as a trustee, and the District Court has to take proper decision. Therefore, I.A.1/2018 cannot be considered.
Point No. (vii):-
41. From the above discussion, I come to conclusion that RFA 1132/2010 deserves dismissal. Though the appellants cannot maintain appeal RFA 1139/2010, in RFA 1132/2010 itself reliefs can be properly moulded by exercising power under Order XLI Rule 33 of CPC. The trial court has declined to remove defendants 2 to 4 in O.S.71/1986 from trusteeship. In the cause title of the memorandum of appeal in RFA 1132/2010, they are shown as dead. Therefore, a new scheme is to be framed by the District Court.
42. Another point raised by Sri Y.K.N.Sharma needs to be dealt with here. He submitted that the appellant be directed to pay to trust Rs.2,40,000/-, the compensation money, and Rs.70,000/- the sale consideration that the appellant received as the said amounts belong to trust. I do not think that this prayer can be entertained. As discussed above, there is no evidence to show that the acquired land belonged to trust. As regards Rs.70,000/- it has to be stated that since the sale deed is to be declared as invalid and that the purchasers have to hand over possession of the land to the trust, the consideration amount should be returned to them by the appellant. The trust cannot claim that amount. Hence, the following order : -
(a) RFA 1132/2010 is dismissed with costs.
(b) RFA 1139/2010 is also dismissed without costs.
(c) Judgments and decrees in O.S.71/1986 and O.S.2/2002 are modified in the following manner :-
(i) The first defendant in O.S.71/1986 Sri Mahanta Swamiji of Devanur Mutt is ordered to be removed from the trust.
(ii) The trial court is directed to frame a scheme for appointing new trustees. This process shall be completed within six months from the date of receipt of records.
(iii) The sale deed/deeds executed by Sri Mahanta Swamiji on 6.1.1986 and registered on 29.8.1986 in favour of defendants 5 and 6 namely G.Maheshwara and G Shadakshara respectively in O.S.71/1986 with respect of 32 acres 9 guntas of land at Haradanahalli, H.D.Kote Taluk, is/are declared as invalid and not binding on the trust. These defendants are directed to hand over the possession of the said land to the trust.
(iv) The administrators are directed to administer and manage the affairs of the trust till a scheme is framed and new trustees are appointed. They are also directed to hand over charge to the new trustees appointed under a scheme to be framed by the District Court.
(v) The administrators shall handover all the properties, movable and immovable and such other thing or things, belonging to the trust and books of accounts and other registers and documents of the trust that are with them to the new trustees and shall also render accounts to the new trustees.
(d) I.A.No.5/2017 and I.A.No.1/2018 are dismissed.
(e) The Registry of this Court is hereby directed to transmit the records to District Court Mysuru immediately to enable it to frame a scheme.
ckl Sd/- JUDGE Pronounced at Kalaburgi Bench of High Court through Video Conference