IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 CRP.No. 436 of 2009() --------------------- AGAINST THE ORDER DATED 30/06/2009 IN OP(TRUST)NO.9/09 of II ADDL. DISTRICT COURT, TRIVANDRUM .................... REVN. PETITIONER(S)/COUNTER PETITIONERS 1, 3 TO 6: --------------------- 1. RAMLATH MEMORIAL CHARITABLE TRUST, SIMI MAHAL, PUTHUKURICHY P.O., THIRUVANANTHAPURAM, REP.BY ITS TRUSTEE ASUMA BEEVI @ ASMA BEEVI, D/O.ABDUL RAHMAN, 2ND FLOOR, OF A.J.APARTMENTS, KAZHAKUTTOM VILLAGE, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM-82. 2. ASUMA BEEVI @ ASMA BEEVI, D/O.ABDUL RAHMAN, 2ND FLOOR OF A.J.APARTMENTS, KAZHAKUTTOM VILLAGE, KZHAKUTTOM P.O., THIRUVANANTHAPURAM-82. 3. USMAN KOYA, S/O.ABDUL RAHMAN, 1ST FLOOR OF A.J.APARTMENTS, KAZHAKUTTOM VILLAGE, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM-82. 4. SUMA JABBAR, AGED 8 YEARS (MINOR) D/O.MUHAMMED ABDUL JABBAR ABDUL RAZAK, REPRESENTED BY ASUMA BEEVI, 2ND FLOOR OF A.J.APPARTMENTS, KAZHAKUTTOM VILLAGE, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM-82. 5. SIMI JABBAR, D/O.MUHAMMED ABDUL JABBAR ABDUL RAZAK, AGED 5 YEARS (MINOR), REPRESENTED BY ASUMA BEEVI, 2ND FLOOR OF A.J.APPARTMENTS, KAZHAKUTTOM VILLAGE, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM-82. (PET.4 & 5 ARE MINORS, WHO ARE REPRESENTED BY 2ND PET. WHO IS THEIR MOTHER). BY ADV. SRI.P.GOPALAKRISHNAN NAIR SRI.A.ABDUL KHARIM RESPONDENT(S)/PETITIONERS 1 TO 4 AND 2ND COUNTER PETITIONER: --------------- 1. PEERUKANNU, S/O.IBRAHIM, MARAKKAM VILAKOM, PUTHUKURICHY P.O., THIRUVANANTHAPURAM. CRP.436/09 2. SAJEENA.K., D/O.KHASIM, SAJEENA MANZIL, PUTHUKURICHY P.O., THIRUVANANTHAPURAM. 3. MUHAMMED BASHEER, S/O.MUHAMMED HANEEFA, MAGARIB HOUSE, KADUVAKUZHY, ARYANADU P.O. 4. V.P.NEPOLIAN, S/O.V.P.PATHROSE, KODIKKATTIL, PUTHUKURICHY P.O., THIRUVANANTHAPURAM, NOW RESIDING AT T.C.14/1546, ANITHA SANKAR ROAD, KANNAMOOLA, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 5. SOFIA BEEVI, W/O.SUBAIR, THONALI VEEDU, KAZHAKUTTOM P.O., THIRUVANANTHAPURAM. ADV. SRI.S.CHANDRASENAN FOR R1-4 SRI.B.RAJEEV KOYICKAL FOR R5 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON 13/11/2009 PASSED THE FOLLOWING: ORDER ON I.A.NO.2334 OF 2009 IN C.R.P.NO.436 OF 2009AME DISMISSED. 13.11.2009 SD/- SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- C.R.P.NO.436 OF 2009 (A) ----------------------------------- Dated this the 13th day of November, 2009 O R D E R The revision is directed against the order passed by the learned Additional District Judge-II, Thiruvananthapuram granting leave to respondents 1 to 4 to institute a suit under Section 92 of the Code of Civil Procedure in respect of the 1st petitioner, which is stated to be a public charitable trust. On a previous occasion, the leave granted by the court below according permission to sue under Section 92 of the CPC has been challenged before this Court, and, then, noticing that meaningful opportunity had not been extended to the contesting respondents in the original petition, the order was set aside with direction to dispose the application in accordance with law. After such remission, the court below after hearing both sides, passed the impugned order, in which, some documents were also marked – Exts.A1 to A13 for the petitioners and Exts.B1 to B3 for the counter petitioners in the CRP.436/09 2 O.P. Among the materials produced, Ext.A1 was the copy of the trust deed and that alone, as seen from the impugned order, was taken into account with reference to the facts and circumstances presented and the principles applicable in deciding the question of leave. 2. Respondents 1 to 4 are the petitioners in the original petition. Claiming to be the well wishers and beneficiaries of the trust, the 1st respondent in the O.P., and imputing mismanagement, malpractices and misappropriation of the trust funds by the respondents 3 to 6, who are presently at the helm of affairs of the trust, the petition was filed seeking various reliefs viz. declaration that removal of the two original trustees by way of a subsequent registered deed is illegal and violative of the objects envisaged under the trust, that the subsequent deeds so created are null and void, preparation of a scheme for the trust, appointment of new trustee, prohibitory orders against respondents 3 to 6 from alienating the trust properties etc. The respondents 1 and 3 to 6, CRP.436/09 3 present revision petitioners, challenged the maintainability of the petition filing objections, in which, they contended that the petitioners in the O.P. are incompetent to apply for leave to sue for the reliefs canvassed and also that the proceedings initiated are mala fide and it is at the instance of the 2nd respondent in the O.P., who had previously filed a suit against the trust challenging her removal from the board of trustees, which was later withdrawn after dismissal of the I.A. moved for injunction. Some of the reliefs canvassed in the petition, it was contended, are outside the scope and ambit of a suit to be instituted with leave under Section 92 of the CPC. 3. The learned counsel for the revision petitioners assailed the order of the court below contending that respondents 1 to 4, the petitioners in the O.P., are not entitled to seek the reliefs claimed in relation with the trust and they are incompetent to apply and obtain leave to institute the suit as contemplated under Section 92 of the CPC in respect of the trust. In the O.P, other than a bald allegation that these CRP.436/09 4 respondents are “the well wishers and beneficiaries of the 1st counter petitioner trust”, there is nothing more to show their interest in the trust, and, in fact according to the counsel, they are total strangers to the trust. A mere allegation that they are well wishers and beneficiaries in the petition is insufficient to show the interest of the petitioners, which is a primary requisite for grant of leave under Section 92 of the CPC, according to the counsel. Another ground of attack canvassed by the counsel is that the petition has been filed at the instance of the 5th respondent, who had previously filed a suit against the trust, but later, withdrew that case when the appeal preferred by her against the dismissal of her application for injunction had been confirmed by the appellate court. Even in her application of withdrawal of the suit, she had cited the filing of the present O.P. to seek permission for such withdrawal, is the submission of the counsel to contend that respondents 1 to 4 have filed the present O.P. at the instance of the 5th respondent after she had failed to get restrictive orders against the present revision CRP.436/09 5 petitioners/respondents 3 to 6, in the management of the 1st petitioner, the trust. The court below has not appreciated in the proper perspective the challenge raised by these petitioners (respondents 3 to 6) that the original petition has been filed to vindicate the private rights of the petitioners and also that of the 5th respondent, and not for prosecution of any public rights in relation to the public trust, is the submission of the counsel to assail the permission granted by the court below to the petitioners in the O.P. to institute the suit under Section 92 of the CPC in respect of the reliefs canvassed. On the other hand, the learned counsel appearing for respondents 1 to 4 submitted that the leave had been granted by the court below after meticulously examining the questions involved and finding that there is no merit in any of the objections canvassed by the revision petitioners/respondents 3 to 6 in the original petition opposing the application for leave to sue for the reliefs in respect of the public trust. Ext.A1 deed disclose in unmistakable terms that a public trust had been created for to perpetuate the memory of the settler's mother for CRP.436/09 6 establishing educational institutions, orphanages, housing colonies to the poor and other institutions for charitable purposes. But, later, two other deeds were created so as to nullify the objects for which the trust was created and some of the trustees had been removed illegally from the management of the trust, submits the counsel. In the petition, the allegation of misappropriation, mismanagement by the present trustees and the need for framing of a scheme are also specifically stated to substantiate the permission sought for to institute a suit to seek the reliefs claimed in respect of the subject matter, the public trust. Petitioners in the O.P. are permanent residents in the locality belonging to a minority community, for the benefit of the weaker sections thereof, the trust had been created, and so much so, they have substantial interest in the welfare of the trust entitling them to seek for permission to sue for the reliefs, is the submission of the counsel. Previous suit filed by the 5th respondent in respect of the trust no way affect the right of the present petitioners nor does it indicate that the permission sought by them is to CRP.436/09 7 vindicate the private rights of the 5th respondent, is the further submission of the counsel. The learned counsel for the 5th respondent supported the contentions raised by the respondents 1 to 4 asserting that there is no infirmity in the order passed by the learned District Judge in granting permission to respondents 1 to 4/petitioners in the O.P. to institute the suit for the reliefs claimed in respect of the trust. 4. The learned District Judge granted leave to the petitioners in the O.P. to sue for the reliefs claimed holding that the challenge raised that the proceedings had been initiated to vindicate the personal interest of the petitioners cannot be accepted. That finding, in the given facts of the case, on the basis of the materials tendered, which no doubt, was formed for the limited purpose as to whether permission can be granted to sue for the reliefs canvassed under Section 92 of the CPC in respect of a public trust, cannot be found fault with solely for the reason that the 5th respondent had instituted a previous suit impeaching her removal as a trustee CRP.436/09 8 from the management of the trust. Ext.A1 trust deed prima facie indicate that a public charitable trust had been constituted by that settler for the objects envisaged, the upliftment of the weaker sections of minority communities in and around Puthukurichy and Kazhakuttom, by establishing educational institutions, orphanages, housing colonies etc. By way of subsequent deeds, there has been blatant failure of the objects of the trust and there is also misappropriation and mismanagement by the present trustees, is the case projected by the petitioners in the original petition to seek for the relief to sue for the reliefs in respect of the trust. The first relief canvassed in the petition is outside the scope of a suit under Section 92 of the CPC, in respect of which only the reliefs covered under 'a' to 'h' of that Section are permissible, by itself is not a sufficient ground to decline permission where some of the other reliefs canvassed fall under that section. But the larger question remains whether the petitioners have any interest in the trust. True, they need not show 'a direct interest', but, their interest in the trust should be real, CRP.436/09 9 substantial and existing. Petitioners are members of the minority community residing at the places in which the trust carries its objectives or envisages of putting up institutions for the upliftment of the weaker sections of that community, is not sufficient to show that they have an interest in the trust in the petition. As rightly contended by the learned counsel for the respondents 3 to 6, nothing more is stated in the petition other than that they are 'well wishers and beneficiaries' of the trust. The learned District Judge has not adverted to the question whether the petitioners have any interest in the trust though it was disputed by respondents 3 to 6. The finding entered that the suit has not been filed at the instance of the 5th respondent, refuting the contentions of the respondents 3 to 6 in the original petition that permission is sought to vindicate the personal interest of the petitioners in the O.P., cannot be considered as a finding that the petitioners have satisfied the requirement that they have 'an interest in the trust'. Interest claimed by the petitioners in the trust, which is disputed by the respondents 3 to 6 must be shown to be an CRP.436/09 10 existing interest and not a mere contingency. Petitioners are members of the minority community and are residents at the places in which the trust property is situated or its institutions are established and a mere statement that they are beneficiaries and well wishers of the trust in the petition, is not sufficient to show that they are persons having an interest in the trust. In order to ascertain the real interest of the petitioners in the public trust, it may be necessary to examine whether they have sought permission to sue to vindicate the right of the public to seek a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested. The interest of the petitioners seeking permission should be one for vindicating a public right in the trust, and so much so, in examining the interest of the petitioners, the court has to go beyond the relief and to focus on the purpose for which the suit is filed. That has been so held by the apex court in Vidyodaya Trust v. Mohan Prasad (2008 (2) KLT 68 (SC)). As already indicated that a mere statement that the CRP.436/09 11 petitioners are well wishers and beneficiaries of the trust without any thing more, is not sufficient to show that they have any interest in the trust to obtain leave for instituting a suit for the relief under Section 92 of the CPC. In Narayana Pillai Gopala Pillai v. Smt. Jyothi Prakashini Devi and others (1991 (2) KLT 535), it has been held by this Court that the question whether a person has a real, substantive and existing interest in a particular trust so as to maintain an action under Section 92 of the CPC has to be determined factually on acceptable evidence and also with reference to the trust in relation to which the suit is instituted. In case, the assertion of the petitioners that they are beneficiaries and well wishers of the trust as averred in their petition is taken as sufficient to show their interest in the trust to seek permission to sue, then, needless to point out, any one in the locality where the trust operates, who are members of the minority community, can come forward and seek permission to institute suits against the trust. Such a situation is wholly undesirable. Object of Section 92 of the CPC is to prevent people from CRP.436/09 12 interfering with the administration of the public trust of a charitable or religious nature by instituting frivolous suits. Whether petitioners in the original petition has genuine, substantial and existing interest in the trust entitling them to seek permission to sue to protect the interest of the trust deserve to be examined before they are permitted to institute the suit for the reliefs under Section 92 of the CPC especially when the trustees, respondents 3 to 6 have disputed their interest contending that the suit has been filed to vindicate the personal rights and also that of the 5th respondent, who had previously failed in her attempts to challenge her removal from the Board of trustees. The order passed by the learned District Judge granting permission to the petitioners to sue under Section 92 of the CPC is revoked directing that court to extent an opportunity to the petitioners to produce evidence showing interest substantiating their existing interest in the trust to sue for the reliefs claimed in respect of the trust. The respondents in the original petition shall also be given an opportunity to give rebuttal evidence in the enquiry on the CRP.436/09 13 limited question involved. The court below, on the materials produced, shall examine the question afresh and pass appropriate orders on the question of leave applied for by the petitioners in the original petition. Parties shall appear before the court below on 23.11.2009, and the court below is directed to complete the enquiry on the question of leave within a period of three months from the date of appearance of the parties as indicated above. Revision is accordingly disposed. S.S.SATHEESACHANDRAN JUDGE prp