IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 RSA.No. 140 of 2009() --------------------- AS.5/2007 of DISTRICT COURT, PATHANAMTHITTA OS.445/2004 of MUSNIFF COURT,ADOOR .................... APPELLANTS/RESPONDENTS/DEFENDANTS ------------------------------------------ 1. K.RAVEENDRANATHAN PILLAI, 62 YEARS S/O.KRISHNA PILLAI, VAISAKH, KADAMPANADU MEKKUM MURI, KADAMPANADU VILLAGE. 2. SREEDEVI, 33 YEARS, D/O.RAVEENDRANATHAN PILLAI, KALEECKAL PUTHIYA VEEDU, KADAMPANADU THEKKUM MURI, KADAMPANADU VILLAGE. BY ADV. SRI.M.NARENDRA KUMAR SRI.S.MOHANAN RESPONDENT/APPELLANT/PALINTIFF ------------------------------------- LEKSHMI KUTTIYAMMA, 59 YEARS, D/O.GOURIYAMMA, ERUPPUKKAL VEEDU, CHANGANKULANGARA MURI, OACHURA VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 252 OF 2009 IN R.S.A. NO. 140 OF 2009 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 4.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 140 of 2009 ---------------------------------------- Dated this the 4th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 5/2007 on the file of the District Court, Pathanamthitta which arises from the judgment and decree in O.S. 445/2004 on the file of the Munsiff Court Adoor. The suit was filed for declaration and injunction. The trial court dismissed the suit and the lower appellate court set aside the trial court's decree and judgment and passed a decree as prayed for by the plaintiff. Hence this Second appeal. The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The plaintiff and 1st defendant are sister and brother respectively and are the children of late Sri.K.R.Krishna Pillai. The 2nd defendant is the daughter of the 1st defendant. The plaintiff filed O.S. 53/1980 before the Sub court Pathanamthitta for partition of the plaint schedule property and other properties of Sri.K.R. Krishna Pillai. The said suit was compromised and a compromise decree was passed in the year 1980. As per the stipulations in the said compromise decree the plaint schedule property having an extent 5 cents is set apart for the construction of a memorial to late K.R.Krishna Pillai who died during the pendency of that suit. Clause 8 of Ext.A1 compromise decree in O.S. No. 53/1980 reads as follows: R.S.A. No. 140 of 2009 -2- . 3. Accordingly, preliminary discussions were held by the plaintiff , the defendants and the people of the locality and a decision was taken to construct a building in the plaint schedule property for housing a library and reading room for the benefit of the general public as a memorial to deceased Krishna Pillai. The plaintiff contended that due to the non- cooperation of the defendants such a memorial could not be materialised and that the defendants with an intention to appropriate the plaint schedule property to themselves had colluded together and the 1st defendant had fraudulently executed some documents in favour of the 2nd defendant. Thereafter the defendants started the construction of a multi- storied shopping complex in the plaint schedule property without the knowledge and consent of the plaintiff. It is the further case of the plaintiff that the foundation work of the building was completed and pillars were R.S.A. No. 140 of 2009 -3- erected , that the defendants have no right or title over the plaint schedule property and that the plaint schedule property was permanently dedicated for the construction of a memorial to late Sri.K.R.Krishna Pillai for the benefit of the general public. Therefore the suit was filed for permanent prohibitory injunction restraining the defendants from appropriating the plaint schedule property by themselves or making any constructions in the plaint schedule property and for other ancillary reliefs. 4. After the filing of the written statement by the defendants, the plaint was amended inserting a prayer for declaring the settlement deed with respect to the plaint schedule property executed by the 1st defendant in favour of the 2nd defendant, as void. 5. A joint written statement was filed by the defendants. According to them there was a stipulation in the compromise decree in O.S No. 53/1980 as stated by the plaintiff, that the said clause in the compromise has no legal validity, that the parties never intended that the said stipulation to take effect, that the said stipulation in the compromise is barred by limitation and that suitable memorials for late Sri.K.R.KrishnaPillai were already in existence at Kadampanad. According to them neither the plaintiff nor the general public have taken any steps for the construction of any memorial, that the plaint schedule property belongs to the 1st defendant and that he obtained the same as per the sale deed No. 827/1977 executed in his favour by late.Krishna Pillai. It was also admitted by the 1st defendant that he transferred the R.S.A. No. 140 of 2009 -4- plaint schedule property in favour of 2nd defendant, that the 2nd defendant is in possession and enjoyment of the same and that the 2nd defendant started construction of a hospital building in the disputed property. 6. The evidence consists of the oral evidence of PWs 1 and 2, DW1 Exts A1 and A2 and B1 to B6 Ext.C1 is the mahazar prepared by the Commissioner Advocate. 7. The Commissioner reported that there was a basement in the plaint schedule property ,that 18 pillars were already erected and that the work was started about a month back. 8. The trial court after evaluating the evidence on record held that Clause 8 of Ext.A1cannot create any trust and the stipulations in the said clause were unenforceable and further held that the title of the 1st defendant over the plaint schedule property would be unaffected by clause 8. The trial court also concluded that the 1st defendant has got title over the plaint schedule property at the time of execution of Ext.A2 settlement deed in favour of the 2nd defendant and that the 2nd defendant would get valid title over the plaint schedule property on the basis of Ext.A2 document. 9. It is not disputed by either side that there was a clause in the compromise decree mentioned earlier whereby the parties have agreed to set apart 5 cents of property for the purpose of construction of a memorial R.S.A. No. 140 of 2009 -5- under the supervision of the 1st plaintiff and the defendants with the co- operation of the general public. 10. The lower appellate court found that the cause of action in the present suit was the consequential act of the parties and as such Section 47 of the C.P.C. was not applicable to the present case. The lower appellate court also observed that by virtue of Section 40 of the Transfer of property Act the stipulation in Ext.A1 agreement would not offend the rule against perpetuity. 11. The lower appellate court also considered the impact of Clause 8 of Ext.A1.. It also found that clause 8 would show that 5 cents of land from out of the 1 acre 78 cents shall be set apart for a specific purpose. The 1st defendant contended that no trust has been created by the stipulation in Clause 8 and in view of Clause 7 he was entitled to the property and as such he was competent to execute Ext.A2 settlement in favour of the 2nd defendant. But according to the plaintiff there was a trust created by the stipulation in Clause 8 of Ext.A1 and the co-operation of the general public was also intended and the memorial was to be for the benefit of the general public and if that be so, the stipulation, in fact, created a public trust and if so, the 1st defendant herein cannot treat the property as if it belonged to him exclusively. The appellate court considered the contentions of both parties in the light of the well settled principles laid down in various Supreme Court and High court decisions. All the oral and documentary evidence was re-appreciated. R.S.A. No. 140 of 2009 -6- 12. The lower appellate court also noted the principle laid down in the decision reported in M.Kesava Gounder and others Vs. D.C. Rajan and others AIR 1976 Madras 102 wherein it is held that there are certain acid tests to find out whether a particular disposition by a person in India is a public trust or not. In that context it is necessary to ascertain whether the purpose of the trust is for the advancement of (1) religion (2) Knowledge (3) Commerce (4) Health (5) safety and (6) other object beneficial to mankind. 13. The stipulations in Ext.A1 were made part of the decree in O.S. 53/1980. Clauses 5, 6 and 7 showed the different allotment to the different persons. It was in Clause 8 that the stipulation was made with respect to the construction of a memorial in the 5 Cents. Evidently, Clause 5 to 7 were subject to the stipulation in Clause 8 only. The lower appellate court construed that the stipulation in Ext.A1 would go to show that it is a public trust only and not a private trust and that the intention to create a trust was decipherable from the terms of the decree and also the intention of the parties and that the beneficial interest in the trust was not limited to a specific individual or definite ascertainable individuals that on the other hand it was for the benefit of the general public at large or for a section of the public. According to the learned District judge the permanency in character was also indicated by the intention to create a memorial in respect of a person, who admittedly was a social worker and a well-wisher of the people of the locality Therefore the lower appellate R.S.A. No. 140 of 2009 -7- court rightly held that the trust is intended not for any private personal purpose. The lower appellate court also held that Clause 8 in Ext.A1, in fact, created a trust with necessary intention and purpose with specific beneficiary and a trust property is made available , that all the essentials for creation of a valid trust are established in evidence. Therefore a direction was issued to the defendants to remove the constructions made so far at their own risk and cost failing which the accretion shall be treated as part of the assets of the trust. For the reason stated in the well considered judgment the lower appellate court decreed the suit . 14. In this Regular Second Appeal the substantial questions of law framed by the plaintiff/ appellant are :- (i) Whether clause 8 in Ext.A1 created a public trust of religious and charitable nature and whether such a trust was in existence on the date of suit or at any point of time on and after Ext.A1. (ii) Whether a memorial in the name of K.R.Krishna Pillai can be a public trust under the notions of Hindu Law (iii) whether clause 8 in Ext.A1 void for uncertainty and vagueness as to the object and purpose of a trust. 15. I have heard the contentions raised by the learned counsel for the Plaintiff/ appellant. The fact finding courts appreciated the oral evidence of PW1 PW2 and DW1 and considered the documentary evidence adduced by both sides The intention of Clause 8 of Ext.A1 was judged by the lower appellate court in the right spirit. The oral evidence R.S.A. No. 140 of 2009 -8- tendered by the parties indicate the intention of the parties. Clause 8 in Ext.A1 set apart 5 cents of property for constructing a memorial to late Sri.Krishna Pillai for the benefit of the general public at large and the memorial should be constructed by the parties with the co-operation of the general public. The proposal is for using it as a library and reading room. At the time of the compromise decree in O.S. 53/1980 the conduct of the parties reveals that the earmarking of the disputed 5 cents is for the creation of public trust to benefit the public at large . In my view the conduct of the 1st defendant in alienating the property in the name of the 2nd defendant is in violation of the terms of the compromise decree . The lower appellate court rightly judged the issues on the basis of the oral and documentary evidence adduced by the parties. I do not find any reason to interfere with the judgment and decree passed by the lower appellate court which in my view has rightly reversed the trial court's decision. No question of law much less any substantial questions of law arises for consideration in this second appeal There is no scope for invoking Section 100 of the C.P.C Therefore this appeal fails and accordingly it is dismissed. (HARUN-UL-RASHID, JUDGE) es. R.S.A. No. 140 of 2009 -9- HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 140 of 2009 ---------------------------- JUDGMENT 4th June, 2009