IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.S.APPA RAO CITY CIVIL COURTS APPEAL No: 49 of 2000 Between: Triveni Bhavan Trust, rep. by its next Friend and trustee Mhaavir Parshad and others … Appellants And Pradeep Kumar and others … Respondents This Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE K.S.APPA RAO CITY CIVIL COURTS APPEAL No: 49 of 2000 JUDGMENT: - (Per Hon’ble Sri Justice A.GOPAL REDDY) This is an appeal by the plaintiffs against the decree and judgment of the IV Additional Judge; City Civil Court, Hyderabad given on 11.11.1997 in O.S.No.1193 of 1986, whereby the learned trial Judge, dismissed the suit filed by the plaintiffs to declare plaintiff No.4 as a life time trustee of plaintiff No.1 of the suit trust; for declaration that the leases in respect of portions of the suit trust properties standing in the name of defendant No.2 are benami for defendant No.1, not binding on the suit trust and for recovery of possession of the suit schedule properties from defendant No.1; for framing the scheme for administration of plaintiff No.1 suit trust; for rendition of the accounts of plaintiff No.1 trust properties by the de facto trustees defendant Nos.1 and 3 to 7 and for recovery of the amounts etc. 2. Facts in nutshell, which are relevant for disposal of the appeal, are as under:- Plaintiffs deities, represented by plaintiff No.4, filed the above suit stating that plaintiff No.1 is a charitable private trust for the maintenance of Dharmasala and the deities of Lord Shiva comprising of Shiva Panchayat viz., idols of Lord Shiva, Goddess Parvathi, Lord Karthikeya, Lord Ganesh, Lord Nandi-plaintiff No.2, the deity of Lord Hanumanji– plaintiff No.3. Plaintiff No.4 is a trustee of plaintiff No.1 trust. Defendant Nos.1 and 3 to 7 are the de facto trustees of plaintiff No.1 trust while defendant No.2 is one of the authors of the suit trust in whose names lease portions of the trust properties are taken benami of defendant No.1 de facto trust. The adoptive mother of plaintiff No.4 late Triveni Bai, W/o.Madanlal purchased a part of plaint schedule property bearing Municipal No.5-5-212 (old) forming part of the premises bearing Municipal No.5-8-110 in all admeasuring 264 sq.yds., under a registered sale deed dated 27.02.1971. Prior to her purchase, her husband purchased 157 sq.yds., on the southern side and shortly after such acquisition her husband conveyed such extends of yards to Smt.Triveni Bai under the registered sale deed. Thus, Smt.Triveni Bai was in possession of 431 sq.yds., under registered sale deed leaving behind about 71 sq.yds for passage to plaintiff No.4 for access to his house which is adjoining on the eastern side. Smt.Triveni Bai constituted plaintiff No.1 trust in an area of admeasuring 350 sq.yds., which is the plaint schedule property. Next day after her purchase, she declared her intention to use the aforesaid premises for charitable purpose viz., Dharmasala with a temple therein entitled ‘Triveni Bhavan’, a private trust. In furtherance of the said object on 03.02.1975, she installed the deities plaintiff Nos.2 and 3, performed Sankalpa and intended to construct a temple in the schedule premises for plaintiff Nos.2 and 3. During her lifetime the plaint schedule premises was used as Dharmasala with plaintiff Nos.2 and 3 as family idols worshiped as such. It was her intention that a separate temple should be constructed in a portion of the suit premises. On the death of Triveni Bai on 28.05.1975, her legal heirs her husband Sri Madanlal, (since died), her adopted son plaintiff No.4 and her natural daughter Smt.Devi Bau Alias Mumma Devi-defendant No.2, wanted to execute a formal trust deed to implement the directions of late Triveni Bai. Accordingly on 13.08.1975 husband of Triveni Bai, late Madan Lal, plaintiff No.4 and her natural daughter defendant No.2, being the authors of the trust deed executed a registered trust deed in favour of late Madanlal, Mahavir Prashad, Krishnalal, Sri Jhavirlal and Sri Durgashankar constituting them as Trustees. The main object of the trust deed has been detailed from para IX of the plaint. It was further asserted that during the lifetime of Triveni Bai, she could not construct the temple in the suit premises to provide for a permanent abode for plaintiff Nos.2 and 3 due to the passage dispute with neighbours on the southern side. After the death of Triveni Bai, her legal heirs obtained delivery of southern 163 sq.yds., on 24.12.1977 in E.P.No.149 of 1977 on the file of IV Assistant Judge, City Civil Court, Hyderabad and got constructed a temple in the said 163 sq.yds as per the wishes of Triveni Bai and removed the deities into the said temple and installed them. 3. Further, during the lifetime of Madanlal, he was in a domain position to influence all the other trustees with regard to the administration of the suit trust and conceived the evil idea of appropriating the suit trust properties for his own purposes in collusion with defendant No.2 and others. Under colour of opening a charitable Hospital, which was never contemplated either by the founder trustee late Smt.Triveni Bai or envisaged in the trust deed, dated 13.08.1975, Madan Lal prevailed upon plaintiff No.4 for leasing the adjoining personal private property admeasuring 94 sq.yds., bearing municipal No.5-8-110 for running a hospital adjacent to Dharmasala. After obtaining the personal private property of plaintiff No.4 on lease, he got started ostensible charitable hospital really into a private hospital of defendant No.1’s father under the name and style of Triveni Madanlal Hospital. On plaintiff No.4 in his individual capacity instituted a suit O.S.No.754 of 1983 for recovery of his private personal property during the life time of Madanlal, the said Triveni Madanlal Hospital was closed and the premises is vacant since then. Madanlal leased out a portion of the suit trust properties to his daughter defendant No.2 benami for defendant No.1 for grossly low rental for a period of ten years and himself executed a lease deed without any other trustees being joined in the execution of the said lease deed. Plaintiff No.4 came to know about leasing out the portion of the trust properties after filing the suit O.S.No.754 of 1983. After the death of Triveni Bai, Madanlal prevailed upon defendant No.2 to develop enimosity towards plaintiff No.4 and to disclaim even the adoption of plaintiff No.4 by Madanlal, the plaintiff No.4’s right over the family properties as co-parcenary in the joint family property of Sri Madanlal and plaintiff No.4, consequently plaintiff No.4 had to file suit O.S.No.187 of 1983 before the Additional Chief Judge (temp.), City Civil Courts, Hyderabad for partition of the family properties of Sri Madanlal, who embittered against plaintiff No.4 and denied his title to the property which was obtained on lease by him on behalf of the Trust for starting the charitable hospital. Plaintiff No.4 was never allowed to participate in the administration of the suit trust and his functioning as secretary of the suit trust as per the terms of the trust, dated 13.08.1975. 4. Further, Madanlal illegally and high handedly inducted defendant Nos.1, 3 to 7 as trustees of the suit trust to function along with him in the administration of the suit trust. On the death of Madanlal on 09.12.1985, plaintiff No.4 is the President of the suit trust as per the trust deed, dated 13.08.1975. But defendant Nos.1 and 3 to 7 de facto trustees have been in possession and management of the trust properties and, therefore, they are bound to account for the income of the trust properties. The estate of Madanlal is liable for the amounts as he was found due to plaintiff No.1 trust as a result of Madanlal’s appropriation of the suit trust properties as his own private properties in derogation of the terms of the trust deed, dated 13.08.1975. The other three trustees originally appointed viz., Sri Kishnalal died on 04.12.1982, Jhaverlal died on 13.03.1979 and Sri Durgashankar retired after the expiry of the original term of five years and was never reelected. Therefore, the self-styled de facto trustees i.e., defendant Nos.1 and 3 to 7 have not been appointed as per the terms of the trust deed, dated 13.08.1975 and are not entitled to function as such. On the death of Madanlal, the vacancies in the trust board have not been filled up as per the terms of the trust deed, dated 13.08.1975. Even during his lifetime the vacant seats in the trust board were not duly and properly filled up. During his lifetime, the entire trust properties were used exclusively for the personal benefits of himself, his daughter defendant No.2 and his grandson defendant No.1. Even after his death, the trust properties were used for the benefit of defendant Nos.1 and 2. The defendants have been guilty of several acts of breach of trust as a result of which the trust itself has virtually become extinct and that the defendants have been acting not only against the interests of the plaintiffs but even contrary to the wishes of the founder trustee in utter violation of the terms of the trust deed, dated 13.08.1975. Therefore, for proper administration of the trust and the protection and preservation of the suit trust properties the plaintiffs are entitled to claim the framing of a proper scheme in accordance with the true wishes of the founder trustees and, therefore, they are entitled to declaration as claimed. 5. Defendant No.2 filed a lengthy written statement denying all the averments made in the plaint, which was adopted by defendant No.1, stating that Triveni Bhavan Trust was established by late Madanlal for the purpose of serving the public and needy people. To achieve the said object, it was decided to have Dharmashala, Hospital, Students hostels and other religious purposes and to have a small idol of Lord Shiva. Further, the averments made by the plaintiffs in para 5 that Triveni Bhavan Trust was created for the maintenance of deities of Lord Shiva comprising of Siva Panchayat viz., Idols of Lord Shiva, Goddess Parvathi, Lord Karthikeya, Lord Ganesh and Lord Nandi- plaintiff No.2 and Lord Hanumanji-plaintiff No.3 are not correct. On the other hand, there are idols of those deities inside the temple. Plaintiff No.4 was taken as one of the Trustees of the said trust. On the death of Triveni Bai on 28.05.1975 the legal heirs are her husband Madanlal and her daughter Defendant No.2. A registered trust deed was executed by Madanlal and defendant No.2, in which plaintiff No.4 was also joined as one of the authors of the trust deed. It is specifically denied that Triveni Bai was the adopted mother of the plaintiff No.4, but admitted that she purchased the premises under registered sale deed, dated 27.02.1971 admeasuring 358 sq.yds., is a trible storied building in the name of Triveni Bai under two different sale deeds, one on 27.02.1971 in the name of Triveni Bai and the other in the name of plaintiff No.4 as a Benamidar. When the sale deed was obtained in the name of plaintiff No.4, he was a child and the entire funds for purchase of the said property was in the name of plaintiff No.4 were contributed by Smt.Triveni Bai and Madanlal. From the inception of the two registered sale deeds, the entire property including the open land without any distinction of northern and southern portions was actually in physical possession of Triveni Bai and her husband and they improved the property till their death. The very next day of obtaining the registered sale deeds by Triveni Bai, she declared her intention to use and utilize the entire property for charitable purposes and also to install a small temple for the purpose of performing daily poojas. After the death of Smt.Triveni Bai, her husband, who was her legal heir, created a trust dated 13.08.1975 to achieve the said object of serving the needy people. It is further submitted that Triveni Bai was not lone founder of the Trust but it was late Madanlal who was architect and founder of the trust because the funds for purchase of the property and establishment of the Trust etc., were contributed exclusively by Triveni Bai and Madanlal. It is denied that the authors of the trust who were the heirs of founder trustee have been managing the trust, but stated before the trust was created, it was Madanlal who was managing the affairs of the Trust and it was he who was evincing interest to utilize the property for the purpose of charitable purposes. After the trust was created, the trust was being run by the trustees in accordance with the Trust deed. Though plaintiff No.4’s name was entered in the trust as the Secretary of the Trust, he never evinced any interest in the affairs of management of the trust and he did not attend the meetings of the Trust, nor he convened the meetings as a Secretary. Therefore, as per the resolution, dated 02.05.1982, of the trustees, his name was removed from the trustees and in his place defendant No.1 was appointed as Secretary as per the amended trust deed, dated 26.06.1985. Madanlal entertained an idea i.e., after his death plaintiff No.4 should become the President of the Trust and the same was incorporated in the trust deed, dated 13.08.1975, but plaintiff No.4 did not come up to the expectation of late Madanlal as he was entertaining the evil designs right from the beginning. Hence, his name was removed totally from the trust and in his place defendant No.1 was appointed as Secretary of the Trust as per the amended Trust deed, dated 26.06.1985. Thus the board of trustees decided to stop functioning of Dharmashala and utilize the entire premises for running hospital. The object of creating the family trust was to render service to the public at large and keeping that in view as a primary concern it was felt in the beginning to open Dharmashala, hospital and students hostel to render service to the people. The installing of deities is an incidental one and it is secondary thing. The trust is a family Trust. Participation in performance of the puja is open to all. Similarly the admission to Dharmashala as well as to the hospital is open to all. The administration and the management of the trust has got discretion to impose restrictions for its smooth and peaceful functioning of its trust. The management of the trust are entitled to employ employees and a pujari to perform daily poojas. The object in creating the Trust is to serve the people. It is denied that the income worked is utilised for the purpose of worshipping of plaintiff Nos.2 and 3 then for maintenance of Dharmashala and the surplus income for Dharmashala or for giving donations to relief works of sufferers of calamities or any good charitable, religious and philonthrophic works. Such condition is not mentioned any where in the Trust deed. The main object of creating family trust is to render service to the public at large specially poor and needy. Hence, the income would be utilised primarily for the comforts and convenience of the public who receive the service from Dharmashala and hospital. The income would be utilised first to look after their comforts and convenience and surplus income shall be utilised for development of the property for charitable purpose and a portion of the income shall be utilised for performing daily pujas to the deitees. Further surplus income shall be utilised for giving donations to relief work of suffers of calamities or any good charitable, religious and philonthrophic works. The temple was constructed in the said open space of 163 sq.yds., and that too at a very corner place of the building. 6. While denying the averments made in para 11 it is asserted that late Madanlal was a great phylontrophist. Similarly, his wife Triveni Bai, was also having the same ideology. Their main object is to serve the people at large especially poor and needy. Keeping the said object in view late Madanlal after the death of his wife, has created the Trust. The very fact that the Trust was created long after the death of Triveni Bai i.e., on 13.05.1987 itself establishes that late Madanlal was not only entertaining Philonthrophic ideology, but he was in fact had implemented it by creating the Trust with the object of rendering service to the people at large and especially poor and needy. Plaintiff No.4 had created lot of trouble to late Madanlal by filing false and vexatious suits and he brought untold sufferings during the latter days of Madanlal’s life in the suit O.S.No.107 of 1983 on the file of Additional Chief Judge, filed by the plaintiffs alleging that he is the adopted son of late Madanlal and stated that Madanlal acquired or received ancestral property, in which a written statement was filed by Madanlal denying the adoption as well as the acquisition of ancestral properties and positively asserting that the property acquired by him was not ancestral property, but was a self acquisition. Late Madan Lal executed a registered will deed dated 25.02.1982 clarifying the position and the status of plaintiff No.4 in that regard. As per the family customs, a boy in adoption should be more than 15 years of age provided he is unmarried. Late Madanlal had adopted defendant No.2’s son herein as his son on 25.02.1982 performing the religious rights and also obtained registered adoption deed, dated 25.02.1982 adopting Pradeep Kumar as his son. 7. While denying the plaintiffs’ assertion that he leased out the southern portion, it was stated that the board of trustee in accordance with the trust deed decided to stop the functioning of Dharmasala and utilized the premises for running the hospital. Accordingly, the out patient block of the hospital was opened on 03.10.1979 and an inpatient block on 18.11.1979. The natural father of defendant No.1 has nothing to do with the hospital. Particularly, he is a Government employee and he cannot work in a private hospital. The allegation that the hospital was established for the benefit of natural father of defendant No.1 is highly mischievous and the same is made with an object of ulterior motive. Madanlal purchased an open piece of land measuring 157 sq.yds., adjacent to trible storied building in the year 1971 and immediately transferred the same in the name of his wife Triveni Bai on 05.11.1971. Thereafter four mulgies were constructed by investing personal funds of late Triveni Bai and Madanlal. The said Mulgies were let out wherein the furniture business was carried in the name of Triveni Furnitures. As the income from the said Mulgies is very less, the board of trustees decided to let out the said premises to defendant No.2 in the year 1978. As Madanlal was not conversant in English, plaintiff No.4 used to obtain his signatures by exercising fraud. There is no need for Madanlal to act prejudiciously to the interest of the trust. During his lifetime, the original trust deed was amended and the amended trust deed came into effect on 26.06.1985, which was in spirit and object of the trust deed. Once the trust deed is amended, defendant No.1 is competent to function as president of the trust and in fact he has been functioning as such after the death of Madanlal. Since Plaintiff No.4 was removed from the trusteeship and he never functioned as trustee, he cannot claim that he can serve as a President of the suit trust. The accounts of the trust are maintained properly by the present trustees and the same is properly accounted by the board of trustees. Once plaintiff No.4 is removed from the trusteeship and reconstituted the trust, plaintiff No.4 is a disclaimer and having kept quite all these years, he has no right, title and interest to file the suit for declaration particularly after he is removed from the trusteeship by resolution, dated 02.05.1982. The suit of the plaintiffs for declaration is not maintainable in law. As the suit property being private properties, plaintiff No.4 has no right, title and interest in the suit and accordingly, he prayed for dismissal of the suit. 8. On the above pleadings, the following issues were settled for trial:- i. Whether plaintiff No.4 is entitled for declaration that plaintiff No.4 Sri Mahavir Pershal was and is a properly constituted life trustee of plaintiff No.1 suit trust and since the death of Sri Madanlal, he is the president of the suit trust? ii. Whether plaintiff No.4 is entitled to the possession of the suit trust property covered by the five registered lease deeds from defendant No.1 one of the de facto trustees and the rest of the trust properties from all the defendant trustees? iii. Whether the plaintiff is entitled for declaration that the lease in respect of properties of the suit trust properties standing in the name of defendant NO.2 are benami for defendant No.1 not binding on the suit trust and for recovery of the said properties from the defendants by plaintiff No.4? iv. Whether defendant Nos.1, 3 to 7 are liable for rendition of accounts of plaintiff No.1 trust properties and whether plaintiff No.4 is entitled for recovery of the amount that may be calculated and may recover from the estate of late Madanlal? v. Whether the plaintiffs’ suit is false, fictitious malfsfice and the same is filed by plaintiff No.4 to wreck his personal vengence? vi. Whether plaintiff No.4 is not entitled to file the suit? vii. To what relief? 9. To substantiate the claim of the plaintiffs, apart from examining himself as P.W.1, he got examined five more witnesses as P.Ws.2 to 6 and got marked Exs.A1 to A6. on behalf of defendants, defendant No.1 examined himself as D.W.1 and got marked two more witnesses on his side as D.Ws.2 and 3 and got marked Exs.B1 to B18 and Exs.X1 to X4 were marked with consent of the parties. 10. After marking the documents, I.A.No.1312 of 1997 was filed by the defendants to frame additional issues stating that the Court lacks inherent jurisdiction as the Principal Civil Court of original Jurisdiction. Chief Judge, City Civil Courts, Hyderabad has to try the nature of suit and further pleaded that the provisions of Section 92 CPC are attracted to the nature of the suit. The said I.A. was allowed and the trial Court framed the following additional issues:- 1. Whether this Court lacks inherent injurisdiction to try this suit as alleged by the defendant in paragraph 24 of the written statement? 2. Whether the plaintiff suit is liable to be dismissed for non- compliance of the provisions of the Section 92 of CPC as alleged by the defendants? 3. Whether the plaintiffs suit for declaration of the plaintiff No.4’s trusteeship as alleged by him is barred by limitation? 11. The learned trial Judge took up the said I.A. as well as the main suit together and held that the execution of the trust deed, dated 13.08.1975 by late Madanlal is proved and the same is valid and binding and acted upon by the Trustees in the manner in which it has been executed in the document, dated 13.08.1975; that the suit trust is a public trust and not a private trust as contended by the plaintiffs and ultimately it was held that the defendants proved the deed of amendment dated 26.06.1985 as valid and binding on the parties to the suit. Accordingly, answered issue Nos.1 to 3 holding that plaintiff No.4 is not entitled for declaration of any relief. It was further held that since it is a public trust, it is only the Principal Civil Court of original jurisdiction court which has got jurisdiction to try the suit as provided under Section 92 CPC and accordingly, dismissed the suit. Aggrieved by the same, the present appeal has been filed. 12. Sri O.Manohar Reddy, learned counsel for the appellants contends that the management of the trust is given