IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY R.F.A.No.1548 OF 2019 BETWEEN:
1. Sri. Vasudeva Murthy. R Aged about 92 years, S/o. Late Ramappa, Proprietor: Prabha Talkies, Mysuru-570 001.
2 . Dr. Madhusudhan. H. R. Aged about 39 years, S/o. Dr. H. B. Ramachandra, residing at No. 74, 2nd Main Road, Jayalakshmipura, Mysuru-570 012.
3 . Sri. Raju Aged about 72 years, S/o. Sri. Siddappa, Residing at Kerehalli, Harve Chamarajanagar, and presently residing at No.548, 26th Main, 2nd Stage, J. P. Nagar, Mysuru-570 008.
4 . Dr. A. S. Chandrashekhar Aged about 64 years, S/o. Late Dr. A. G. Subbarao, residing at No.62, Omkar Layout, J. P. Nagar, Mysuru-570 008.
5 . Sri. Ashwin R. Pallegar Aged about 52 years, S/o. Late H. P. Rajashekar, residing at No.12/4, Mirza Road, Mysuru-570 010.
6 . Sri. Devanoor Shivamallu Aged about 65 years, S/o. Late Chinnamadaiah, No.2, Adichunchanagiri Road, Mysuru-570 023.
7 . Sri. Mahesha Aged about 66 years, S/o. Late Thammaiah Shetty, residing at No. 8, Dr. Rajkumar Road, Shakthinagar, Mysuru-570 029.
(By Sri. Y.K.Narayana Sharma, Advocate ) AND:
1. T. S. Subbanna Sarvajanika Educational Trust Vidyaranyapuram, Mysuru, Represented by the Administrators.
…Appellants 2. Smt. H.M.Vasanthamma Aged about 72 years, W/o. Sri. Neeli Siddaiah, Residing at No.MIG 37, HUDCO, Gangothri Layout, Mysuru-570 009.
3. Sri. P.N Harish Aged about 63 years, S/o. Sri. Nanjegowda, Residing t No.164, 2nd Main, Behind Ganapathi Road, Vijayashrepura, Mysuru-570 027.
4. Sri. Ravikumar Major, S/o Late Karigowda, Residing at No.193, “D” Block, Vijayanagar III Stage, Mysuru-570 017.
5. Sri. D. Nagu Nayak Aged about 63 years, S/o Late Durga Nayak, Residing at No.347, 20th Main, 2nd Stage, J.P. Nagar, Mysuru-570 008.
6. Sri. D.G. Somashekara Murthy Aged about 53 years, S/o. Sri. Guruswamy, Residing at No.156, Ooty Road, Gowrishankara Nagara, Mysuru-570 025.
7. Proof: B. Nagaraja Murthy, Aged about 62 years, S/o Late Boregowda, Residing at No.545, HIG, “VIMANA”, 8th Main, “H” Block, 3rd Cross, Ramakrishna Nagara, Mysuru-570 022.
8. Sri. M. Basavaraju Aged about 66 years, S/o. Late Shivabasappa, residing at No. 16/B, Ahimsa Marga, Siddarthanagar, Mysuru-570 011.
9. Smt. G. Nagshree Aged about 37 years, W/o. Sri. H. D. Pratap, residing at Venkataiahana Chatara Village, Haradanahalli Hobli, Chamarajanagar-571 127.
10. Sri. C. S. Niranjana kumar Aged about 46 years, S/o. Sri. Shivamallappa, residing at Chowdalli Village, Hundipura Post, Hangala Hobli, Gundalapet Taluk, Chamarajanagar-571 111.
11. Sri. Basavegowda Aged about 68 years, Administrator, T.S. Subbanna Sarvajanika Educational Trust, Vidyaranyapuram, Mysuru-570 008.
12. Sri. Shashibimba Aged about 62 years, S/o. Sri. Shivanandappa, Administrator, Sarvajanika Educational Trust, T. S. Subbanna Sarvajanika Educational Trust, Vidyaranyapuram, Mysuru-570 008.
13. Sri. S. Guruswamy Aged about 68 years, S/o. Sri. Shivanna, Administrator, T. S. Subbanna Sarvajanika Educational Trust, Vidyaranyapuram, Mysuru-570 008.
14. Dr. Renukacharya Aged about 77 years, s/o. Late R. Karibasappa, residing at No.4, 1st stage, Sahukar Channaiaha Road, Gangothri Layout, Mysuru-570 009.
15. Prof.: K. S. Mallesh Aged about 61 years, S/o. Late K. C. Subbanna, residing at No. 100, 24th Main, "B" Block, Vijayanagar III Stage, Mysuru-570 017.
…Respondents (By Sri Sangamesh R.B., Advocate for R-2 to R-8 and R-10; Sri R.S.Ravi, Advocate for R-11 to R-13, R-1, R-9, R-14 & R-15 – served) **** This Regular First Appeal is filed under Section 96 read with Order XLI Rule 1 of CPC against the order dated 02.07.2019, passed in O.S.No.71/1986, on the file of the I Addl.District Judge, Mysuru, appointing new Board of Trustees after framing of Scheme and accordingly decreeing the suit for rendering of accounts and appointment of new Trustee.
This Regular First Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T Though this matter is listed for admission, however, with the consent from both side, the matter is taken up for final disposal.
2. The present appeal has been filed by the plaintiff No.3 in the Court of the I Additional District Judge at Mysore (hereinafter for brevity referred to as the “Trial Court”), which plaintiff along with others had instituted a suit against the defendants who are the respondents herein under Order VII Rule 1 read with Section 92 of the Code of Civil Procedure, 1908 (hereinafter for brevity referred to as “CPC”). The plaintiffs No. 1 to 5 in the Trial Court claim themselves to be the Trustees in the Respondent No.1 – T.S. Subbanna Sarvajanika Educational Trust, Vidyaranyapura, Mysuru (hereinafter for brevity referred to as the “Trust”). The sixth plaintiff is a permanent invitee for all the meetings and deliberations of the Trust. The said suit against defendants was for a direction to first defendant to render accounts of income and expenditure and other proceeds realised by him as the President of the Trust, from the date on which he took over as President of the Trust, i.e. from 21-06-1980; for removing the first defendant from Trusteeship and also from Presidentship of the Trust; appointing a new Trustee in the place of the first defendant and remove the defendants 2 to 4 from Trusteeship in the event of their non-associating themselves with the plaintiffs and appointing new trustees in their place and also to direct the first defendant to deliver possession of all the properties belonging to the trust to the plaintiffs. The plaintiffs further sought a declaration that the sale made by the first defendant in favour of the defendants No.5 and 6 was not binding on the Trust and the plaintiffs and to settle a scheme for proper administration of the Trust and the Institutions coming under the jurisdiction of the Trust.
3. The said O.S.No.71/1986 was connected along with another suit in O.S.No.2/2002 and the Trial Court by its judgment and decree dated 24-04-2010 partly decreed the suit in O.S.NO.71/1986 wherein the defendant No.1 was removed from his Trusteeship as well as his Presidentship of the Trust. However, the prayer of the plaintiffs to remove defendants No.2 to 4 from Trusteeship and to appoint new Trustees in their place was rejected. The prayer of the plaintiffs seeking declaration that the Sale Deed executed by the first defendant in favour of defendants 5 and 6 as not binding on the Trust was restricted. The Administrator was directed to administer the affairs of the Trust till the new Trustees were appointed and till a full-fledged Trust came into existence. The suit of the plaintiffs in O.S.No.2/2002 seeking declaration that the Sale Deed executed by the first defendant in favour of defendants No.5 and 6 as not binding on the Trust was dismissed. Challenging the said judgment and decree dated 24-04-2010, two appeals i.e.
R.F.A.No.1132/2010 c/w. R.F.A.No.1139/2010 were filed before this Court. This Court by its judgment dated 29-05-2018 passed in those two appeals though dismissed both the appeals with costs, however, it proceeded to modify the judgment and decree in O.S.No.71/1986 and O.S.No.2/2002 in the following manner:-
“(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.”
4. As per the modification of the judgment and decree, wherein this Court directed the Trial Court to frame a Scheme for appointment of new Trustees within six months from the date of receipt of the records. The Trial Court proceeded to frame a Scheme on 02-07-2019, where under, it also appointed nine persons as the Trustees, however, calling the said Scheme as ‘decree’ passed on 02-07-2019. Challenging the said Scheme framed by the Trial Court, though and in the name of a ‘decree’ dated 02-07-2019, the appellants have preferred this appeal.
5. Learned counsel for appellant in his brief arguments submitted that the Trial Court while framing the Scheme, has not caused any reasoned order at all. In the absence of any reasoned order, the Trial Court directly proceeded to appoint nine Trustees on 02-07-2019 in a single page order and directly proceeded to pronounce the decree without there being any reasoned order either as the basis for appointment of Trustees or for framing of the terms in the Scheme.
6. The learned counsels for the respondents though submitted that either the appointment of the Trustees or the terms of the Scheme would in no way prejudice the interest of the Trust, however, they fairly conceded that, except the impugned order which is shown under the title as ‘decree’ dated 02-07-2019, there is no detailed reasoning or explanation for the alleged ‘decree’ under challenge.
7. In the above background, when this appeal had come up before this Court on 24-07-2019, a submission was made by the learned counsel for the appellants that, till the previous date evening, (i.e. on 23-07-2019), the Trial Court had not passed any reasoned judgment in O.S.No.71/1986 except the operative portion of the order, the certified copy of which he has produced along with the Memorandum of appeal.
8. Considering the said submission made in the Court by the learned counsel for the appellants, this Court in order to ascertain whether the Trial Court had passed any detailed judgment to arrive at a conclusion made in the operative portion, summoned the original records on an emergent basis. In the meantime, the Registrar General was also orally directed by this Court to ascertain from the Principal District Judge, Mysuru, as to whether a reasoned judgment or order has been passed in support of the impugned order dated 02-07-2019. The Registrar (Judicial) secured a reply by fax which is dated 25-07-2019 from the Principal District and Sessions Judge, Mysuru, who has stated that there was no separate reasoned judgment or order for forming a Scheme in O.S.No.71/1986 which was disposed of on 02-07-2019 by a decree. The said letter, however, stated that the concerned Presiding Officer, i.e. the I Additional District and Sessions Judge, Mysuru, informed that the Scheme in O.S.No.71/1986 was framed on 01-04-2019 and new Trustees have been appointed on 02-07-2019 as per the directions of this Court in R.F.A.No.1132/2010 c/w. R.F.A.No.1139/2010. The said letter of the Principal District Judge, Mysuru, which was till now kept under a sealed cover by the Registrar General along with this appeal is now opened in the open Court and its contents are noted which are as above. (The said document is also kept along with this record as part of the records).
9. In the meantime, this Court received the Lower Court records and verified the same in detail wherein it is further confirmed that in support of the impugned order (shown as a decree) dated 02-07-2019, there is no supporting reasoned order/explanation passed or made by the learned Judge of the Trial Court.
10. The Trial Court order sheet further goes to show that thereafter, the Trial Court appears to have received several applications from various people in response to the public notice for the appointment of Trustees, appear to have been published in the newspapers. It further appears that the Trial Court appears to have held interviews of all those applicants on various dates for the appointment of Trustees. Ultimately, on 02-07-2019, the Trial Court appears to have appointed nine Trustees in its brief order which in its entirety is reproduced here below:-
“Regard being had to the scheme framed by this Court and suitability of persons, following persons are appointed as Trustees:
1. Smt.H.M.Vasanthamma W/o. Dr.Neeli Siddaiah.
2. Sri P.N.Harish S/o Nanje Gowda.
3. Sri Ravi Kumar S/o Late Kari Gowda.
4. Sri D.Nagu Nayak S/o Late Durga Nayak.
5. Sri D.G.Somashekar Murthy S/o G.Guruswamy.
6. Prof.B.Nagarajmurthy S/o Late Bore Gowda.
7. Sri M.Basavaraju S/o Late Shivabasappa 8. Smt.G.Nagsree W/o H.D.Pratap.
9. Sri C.S.Niranjan Kumar S/o Shivamallappa Draw decree accordingly.
It is further directed that, Administrator shall convene a meeting of newly appointed Trustees for the election of new office bearers, within one month from the date of this order and shall hand over the charge of Trust to the newly elected office bearers.”
11. In order to ascertain as to whether any reasoned or supporting order was passed for appointment of the above shown nine Trustees, this Court verified the lower court records thoroughly and by which it could only find a document which is shown to be a decree dated 02-07-2019 and signed by the Presiding Officer on 12-07-2019 which after referring to the judgment of this Court dated 29-05-2018, passed in R.F.A.No.1132 c/w. R.F.A.No.1139/2010, has proceeded to frame a Scheme and also nominated nine Trustees in it. A careful perusal of the said decree dated 02-07-2019 would no where go to show that the Trial Court has given any reasoning for its appointment of nine Trustees including the criteria upon which they were selected. There are no materials to show that what was the outcome of the interview and how the eligibility of the appointed trustees were considered as eligible for appointment, by the Trial Court. Therefore, absolutely there are no material to show that on what basis, the Trial Court has appointed nine Trustees.
12. An order was made by this Court on I.A.No.1/2019 on 20-03-2019 in R.F.A.No.1132/2010 c/w. R.F.A.No.1139/2010. The said I.A.No.1/2019 was filed on behalf of the respondent Nos.1, 4, 5 and 7 under Section 151 of CPC read with Sections 73 and 74 of Indian Trusts Act, 1882 seeking a clarification with regard to the persons to be appointed as Trustees. This Court while passing a detailed order on the said interlocutory application on 20-03-2019, in the last two paragraphs has made the following observations:-
“In addition, it has to be stated that while selecting the persons to be the trustees, the aims and objectives of the trust that find a place in the trust deed may be kept in mind. Only those persons who are suitable and capable to achieve the objectives of the trust may be appointed. Even a reference may be made to Sections 73 and 74 of the Indian Trusts Act.
Beyond these observations, no further directions can be given. Application IA No.1/2019 thus stands disposed of.”
13. The Trial Court while selecting the persons to be the Trustees, was required to keep in mind the aims and objectives of the Trust. It was also a direction to the Trial Court that only those persons who are suitable and capable to achieve the objectives of the Trust were required to be appointed.
14. In the light of the above, the Trial Court in order to show that it has applied its mind in selecting the Trustees who could achieve the objectives of the Trust was necessarily required to give reasons for appointing the nine persons whose names are shown in the decree under challenge, as the Trustees. Therefore, I am of the view that the appointment of Trustees as shown the part of the Scheme dated 02-07-2019, which in fact, appears to have been arisen out of an order dated 01-04-2019 deserves to be set aside and the matter requires to be remanded to the Trial Court with a direction to pass a reasoned order and to appoint Trustees.
15. With this, the appeal stands partly allowed and the matter stands remitted to the Trial Court to pass an order regarding appointment of Trustees afresh in the light of the observations made above.
In order to save time, both side parties who are appearing in this matter are directed to appear before the Trial Court on 02-12-2019 at 11:00 a.m. without anticipating any fresh notice or summons from the Trial Court.
No need to say that in view of setting aside of the appointment of nine Trustees whose names are shown in the impugned order dated 02-07-2019, the administration of the Respondent No.1 – Trust would stand vested with the Administrators.
The Trial Court is directed to expedite the matter and the early disposal of the matter not later than a period of four months from the communication of this judgment to the Trial Court would be highly appreciated.
Registry to transmit a copy of this judgment along with Lower Court Records to the Trial Court without delay.
Sd/- JUDGE BMV*