IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 FAO.No. 70 of 2009() -------------------- OP.2/2008 of SUB COURT, PERUMBAVOOR .................... APPELLANTS/PETITIONERS ------------------------------------------ 1. PASTOR WILSON JOSEPH, SON OF K.C.JOSEPH, AGED 43 YEARS, KARIMAKKAL HOUSE, MELUKAVUMATTOM P.O., KOTTAYAM DISTRICT, NOW RESIDING AT H-283, BETA-II, GREATER NOIDA, G.B.NAGAR (DISTRICT), U.P. 201 306. 2. PASTOR JOMON JOSEPH, AGED 35, SON OF K.C.JOSEPH, AGED 43 YEARS, KARIMAKKAL HOUSE MELUKAVUMATTOM P.O., KOTTAYAM DISTRICT, NOW R/AT. G.136, DELTA II, GREATER NOIDA, G.B.NAGAR(DISTRICT U.P. 201 306. 3. T.J.JOHNY, SON OF JOHN, AGED 63 YEARS, KURUVITHADATHIL HOUSE, MULLAMKUTHI, KALIYAR, THODUPUZHA TALUK, THODUPUZHA TALUK, IDUKKI DIST., KERALA STATE, NOW RESIDING AT CHAPPARATHU HOUSE, 31/1978 A, LALSALAM ROAD, PONNURUNNI, VYTTILA P.O. KOCHI-19. BY ADV. SRI.RAMPRASAD UNNI T. SRI.PREM NAVAZ J.R. SRI.MANU TOM CHERUVALLY SRI.RAJEESH K.G. RESPONDENT(S): --------------- 1. GOOD NEWS FOR ASIA, A RELIGIOUS TRUST WITH ITS REGD. OFFICE AT 8/90, PUTHENCRUZ, REP. BY MANAGING TRUSTEE(A) K.JACOB MATHAI, SON OF LATE K.V.JACOB, AGED 63 YEARS, 106F, VRINDAVAN APARTMENTS, VYTTILA, KOCHI-19. 2. REV. K.JACOB MATHAI, SON OF K.V.JACOB, AGED 63 YEARS, 106 F, VRINDAVAN APARTMENTS, VYTTILA, KOCHI-19. 3. K.C.THOMAS, AGED 44 YEARS, SON OF CHANDY, KIZHAKKEPALAKKAL, 106, CHURCH NAGAR, ANGAMALY, ALUVA TALUK, ERNAKULAM DISTRICT. 4. ANNAMMA, AGED 49 YEARS, W/O.MATHAIKUNJU, MENACHERY HOUSE, THURAVOOR VILLAGE, ALUVA TALUK, ANGAMALY, ERNAKULAM DISTRICT. ADV. SRI.G.RAJAGOPAL FOR R3 SRI.THOMAS M.JACOB FOR R3 ADV. SRI.JOBY JACOB PULICKEKUDY FOR R1 & R2 SRI.ANIL GEORGE FOR R1 & R2 SMT.V.A.SARITHA FOR R1 & R2 ADV.SRI.G.RAJAGOPAL FOR R4 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON 16/10/2009 DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O.No. 70 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the ...th day of October, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by the petitioners in O.P. No. 2 of 2008 on the file of the Sub Court, Perumbavoor. Respondents 1 to 4 herein are respondents 1 to 4 in that petition, which was filed under Section 92 of the C.P.C. 2. The facts of the case, according to the appellants, are briefly as follows. The first respondent is a religious trust created with the objectives of spreading the teachings of Jesus Christ. The first respondent is engaged in conducting public meetings, conferences, conventions etc. with a view to spread the teachings of Jesus Christ. They are also conducting Bible study groups, prayer groups etc. The trust was registered on 14.4.1987. The petitioners 1 to F.A.O.No. 70 of 2009 2 3 are the beneficiaries of first respondent religious trust. There is a Bible College conducted by the first respondent. 3. The first respondent is acting through the Managing Trustee, who is the second respondent. By Sale Deed No.1383/92 of Perumbavoor S.R.O., the plaint schedule property was purchased by the second respondent. It was purchased by using the money of the first respondent. The property was purchased for advancing objectives of the trust. 4. In violation of the provision of the trust, the managing trustee transferred the plaint schedule property to respondents 3 and 4. A sale deed was executed with respect to the property in 1998 in favour of the third respondent. The third respondent, by Sale Deed No.3625/99 transferred the property to the 4th respondent. The property was purchased in 1992 for a consideration of Rs.1,20,000/-. Subsequently, in 1998 it was transferred in the name of the 3rd respondent for Rs.97,500/-. The sale deed in respect of the 4th respondent is for Rs.65,000/-. F.A.O.No. 70 of 2009 3 The sale deed in favour of respondents 3 and 4 is absolute violation of the trust deed. These transactions are invalid transactions. Therefore, the suit is filed for vesting the petition scheduled property in the first respondent trust finding that Sale deed Nos. 1809/98 and 3625/99 are invalid and void ab initio. 5. The respondents 3 and 4 filed objection to the petition. They contended that the petition and the suit are not maintainable. The suit is not filed for any of the reasons enumerated in Section 92 of the C.P.C. The suit is barred by limitation. The petitioners are close relatives of the 2nd respondent. The petitioners are not beneficiaries under the trust. The 2nd respondent executed a sale deed with respect to the property in 1998. That was executed for clearing the liability of the first respondent trust. The 3rd respondent cleared the liability of the 2nd respondent. An agreement was executed on 30.4.1998. The 2nd respondent did not pay the money to the 3rd respondent as F.A.O.No. 70 of 2009 4 per the said agreement. The 3rd respondent had borrowed an amount of Rs.2,41,000/- from the 4th respondent. 6. On 10.8.1999 3rd respondent transferred the property to the 4th respondent by sale deed No.3625/99. Viji Ponnanal had filed O.S. 261/2000 before the Sub Court, North Paravur stating that the plaint schedule property was agreed to be sold by respondents 2 to 4 to him. The 2nd respondent had filed O.S. 141 of 2006 before the Sub Court, Paravur, which was transferred and renumbered as O.S. 117/08 to the Sub court, Prumbavoor for getting the plaint schedule property. That suit was dismissed after trial by that court. This petition is filed suppressing the material facts. The 2nd respondent has filed the suit for vindicating his personal interest. 7. In the Sub Court Exts.A1 to A4 and Ext.B1 were marked. The learned Sub Judge, on considering the matter, dismissed the petition on finding that the suit is not filed for any F.A.O.No. 70 of 2009 5 of the reasons enumerated under Section 92 of the C.P.C. Against that order the petitioners filed this appeal. 8. Heard the learned counsel for the appellants and the learned counsel for the contesting respondents. 9. The learned counsel for the appellants submitted that with regard to the same trust the very same learned Sub Judge has granted leave in O.P.No.1 of 2008 containing the same reliefs. The learned counsel for the appellants further submitted that the learned Sub Judge has acted with material irregularity and impropriety in examining the merits of the case in an application under Section 92 C.P.C., which is impermissible in law. The learned counsel for the contesting respondents supported the order of the learned Sub Judge. 10. Ext.A1 is the copy of the Trust Deed dt.14.4.1987 showing that the first respondent is a religious Trust. Ext.A2 is the copy of the Sale Deed No.1383/93 showing that the disputed property was purchased in the name of the first respondent Trust. F.A.O.No. 70 of 2009 6 Ext.A3 is the copy of the Sale Deed No.1809/98, by which the second respondent transferred that property in favour of the third respondent. Ext.A4 is the copy of the Sale Deed No.3625/99, by which the third respondent transferred the property to the 4th respondent. The learned counsel for the appellants submitted that the petition falls under Section 92(1)(c) C.P.C., for vesting the property in the Trust, which was an illegal transfer by the Trust. 11. There is no dispute that the first respondent is a Religious Trust. The above suit is filed for re-vesting of the petition schedule property in the first respondent on finding that Ext.A3 Sale Deed No.1809/98 and Ext.A4 Sale Deed No.3625/99 are invalid and void ab initio. The learned counsel for the appellants, relying on the decision in Payyannuur Co- operative Educational Society v. Narayanan (2000 (3) KLT 129) argued that a worshiper has got the right to challenge the Sale Deed executed by the Trustee. That decision is not F.A.O.No. 70 of 2009 7 applicable to the facts of the present case. That decision relates to various provisions contained in the Madras Hindu Religious and Charitable Endowment Act, 1951 and not under Section 92 C.P.C. It may be true, of course, that the Apex Court in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai and Others (AIR 1952 SC 143), was dealing with the position that when relief prayed for is declaration that the properties in the Suit are trust properties, it does not come under Section 92 of the CPC. 12. The learned counsel for the appellants, relying on the decision in Vidyodaya Trust v. Mohan Prasad (2008 (2) KLT 68 (SC)) argued that to find out whether the suit was for vindicating public right the court has to go beyond the relief and to focus on the purpose for which the suit is filed. It is the object or purpose for filing the suit and not essentially the relief which has paramount importance. F.A.O.No. 70 of 2009 8 13. The learned counsel for the contesting respondents submitted that for deciding the object or purpose for filing the suit it may be necessary to go into the merits of the case to some extent. The learned counsel for the contesting respondents submitted that in the suit filed by the first respondent against respondents 3 and 4 as O.S. No.117 of 2007 before the Sub Court, Perumbavoor, the validity of Ext.A3 Sale Deed No.1809/98 was considered and it was found that Ext.A3 Sale Deed, which is in favour of the third respondent is not liable to be cancelled and it is a valid document. Ext.B1 is the copy of the judgment in that suit. 14. In the decision reported in Kalyana Venkataramana Aiyangar & anr. v. Kasturi Ranga Aiyangar (AIR 1917 Madras 112 (FB)) it was held that: Suits in which relief is asked for against strangers to a public, religious or charitable trust, F.A.O.No. 70 of 2009 9 whether they are alienees from the trustees or trespassers, are outside the purview of S.92, Civil P.C. No doubt, learned senior counsel for the appellants, Shri K. Ramakumar was not able to place before us any authority taking a contra view. Therefore, in so far as the relief claimed in the Petition will certainly affect third parties, we are of the view that the petition may not fall within the purview of Section 92 of the CPC. 15. In the decision reported in Viji P. Issac v. Wilson Joseph (2009 (3) KLT 566) it was held: “In a suit filed under S.92 C.P.C., there must be a prayer for one or other reliefs as specifically mentioned in that Section. If only there is such a relief then only it can be said that the suit is filed in conformity with the provisions of S.92. The relief sought for by the petitioners in the proposed suit to F.A.O.No. 70 of 2009 10 declare that the properties alienated under sale deed executed by the managing trustee and, later, by the alienees thereunder is not binding, and vested with the trust treating such sale deed as ab initio void, is outside the scope of S.92 C.P.C.” 16. Though the learned counsel for the appellants sought to derive assistance from the decision in Vidyodaya Trust v. Mohan Prasad (2008 (2) KLT 68 (SC)), we are of the view that the appellants may not be justified in deriving assistance from the same. No doubt, in the said case, the Apex Court held as follows: “As was observed by this Court in Swamy Parmatmanand's case (supra), to gauge whether the Suit was for vindicating public rights, the Court has to go beyond the relief and to fucus on the purpose for which the suit is filed. To put it differently, it is the object or the purpose for filing the suit and not F.A.O.No. 70 of 2009 11 essentially the relief which is of paramount importance.” However, we note that at paragraph 25, the Apex Court has held as follows: “To put it differently, it is not every suit claiming reliefs specified in S.92 that can be brought under the Section; but only the suits which besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights. As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought.” Thus, it is imperative that the relief sought for must be relief which is one or more of the reliefs enumerated in Section 92. In Uma Shanker and Others v. Salig Ram and Others (AIR 1975 Allahabad 36), the Court, inter alia, held as follows: F.A.O.No. 70 of 2009 12 “The third question may now be considered. The question referred to us is of a very limited nature, and calls for an answer only as to whether Sec.92(1)(c), Civil Procedure Code contemplates vesting of title in the property in a trustee under this sub-clause, or the court can direct vesting of possession, management etc. in the trustees. Inas much as in the present case we are concerned with property of a Hindu Religious Endowment vested in a deity, we propose to answer the question only with reference to such a trust. In AIR 1932 Rag. 132, the Court after considering the decisions in AIR 1925 All 683 and ILR 40 Mad.212 = (AIR 1917 Mad. 112) (FB): Sajedur Raja v. Baidvanath Deb. (1893) ILR 20 Counter Affidavit,. 397 and ILR 40 Mad. 212 = (AIR 1917 Mad. 112) (FB) held that the words of clause (c) referred to cases where a new trustee is appointed and possession is directed to be given to him, and not to cases where it is sought to recover possession from trespassers.” F.A.O.No. 70 of 2009 13 Thereafter, the Court also proceeded to held as follows: “It must as such be held that a shebait has a right to manage the endowed property and to hold that office and exercise all other rights incidental to these rights, and such rights are proprietary rights qua the trust property. In as much as it has already been seen the word “vest” not only includes vesting of possession, but vesting of other rights too, that is intangible or abstract rights, a direction under Section 92(c) can be given vesting the right of management and of fice and all other incidental rights related thereto in favour of the shebait, who is the trustee of the endowed property.” 17. Since the prayer in the present petition does not come under the purview of Section 92 C.P.C., we are of the view that the learned Sub Judge is perfectly justified in dismissing the petition on finding that the petition under Section 92 C.P.C. is not maintainable. F.A.O.No. 70 of 2009 14 18. Accordingly this appeal is dismissed. There is no order as to cost. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm