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Thankappan Adishar & Others v/s Panayanarkavu Temple Trust, Rep. by Its President, Sankaranarayana Pillai @ Kochukuttan & Others


Company & Directors' Information:- TEMPLE CO LTD [Strike Off] CIN = U17111WB1962PLC025361

    FAO. No. 65 of 2020

    Decided On, 26 August 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    For the Appellants: P. Haridas, Cherian Gee Varghese, Biju Hariharan, R.B. Balachandran, Renji George Cherian, P.C. Shijin, Advocates. For the Respondents: R3, M. Narendra Kumar, Advocate.



Judgment Text

1. If someone is to ask if a petition for leave to institute a suit, under the sanction of Section 92 of the Code of Civil Procedure, can be maintained against a Private Trust, the answer would unhesitatingly be to the negative.2. However, this is precisely what the appellants attempted to do; and then, after suffering an adverse order from the Trial Court, they have moved this appeal against it, contending that, notwithstanding their express admission that the Trust in question is a private one, the Court ought to have permitted them to establish otherwise, thus leading to the consideration of the petition on its merits.3. This contention of the appellants being contrary to the Statute and the precedentially well established position in law, I can only repel it, as I will presently explain.4. This appeal has been filed by the petitioners in O.P. (Scheme) No.5/2016 on the files of the Court of Subordinate Judge, Thiruvalla, which is one stated to be filed seeking leave to institute a suit under Section 92 of the Code of Civil Procedure.5. The appellants say that even though the petition discloses all the ingredients required for the Court to have granted leave under Section 92 of the CPC, it has, nevertheless, dismissed the same through the impugned order; and they thus assail it as being illegal and issued without proper thought. They thus pray that this appeal be allowed and the impugned order be set aside, thus permitting them to institute a suit under Section 92 of the CPC.6. I have heard Sri.P.Haridas, learned counsel appearing for the appellants and Sri.M.Narendra Kumar, learned counsel appearing for respondents.7. Sri.P.Haridas, learned counsel submitted that the petition for leave had been filed by his clients for modifying, amending and setting aside the Scheme for the administration and management of the “Sree Vilya Panayannarkavu Bhagavathi Devaswom” and its temple and properties, situated in Kadapra Village. He says that the appellants/petitioners and the respondents are members of the “Padinjattedathu Family” and expressly concedes that the “Panayannarkavu Bhagavathy Devaswom” is a private Devaswom, which is administered by a 'Private Family Trust', which also owns other properties.8. Sri.P.Haridas says that the administration of the temple is presently discharged by the members elected to the Trust by the family members; and that this is being so done as per a decree in O.S.No.258/1999 of the Sub Court, Thiruvalla, which had been earlier filed seeking a Scheme for such purpose. Sri.P.Haridas then submits that the present grievance of his clients is that they are being denied the opportunity to be elected to the Trust by the respondents, who are asserting that only the successors of female members of the family are so entitled, the family being governed by the 'Marumakkathayam Law'. He says that since the Marumakkathayam Law has now ceased to be in force on account of the Kerala Joint Hindu Family System (Abolition) Act, 1975, which came into effect on 01.12.1976, the present Scheme has become incompetent and therefore, that a new Scheme is to be settled. He says that it is for such purpose, that the aforementioned O.P.(Scheme) had been filed by his clients. He thus prays that this appeal be allowed and the impugned order be set aside.9. Sri.Narendra Kumar, learned counsel appearing for the respondents, on the other hand, submitted that the O.P itself is not maintainable because it is expressly conceded to by the appellants/petitioners that the Trust in question is a private one and that the Scheme governing it has been settled by the Sub Court itself in O.S.No.258/1999. He says that going by the provisions of Section 92 of the CPC, only Public Trusts or Private Charities come within its ambit and that since the appellants themselves admit that this is a Private Trust, it was incumbent upon the Court to dismiss it as being not maintainable. As an alternative contention, he submits that even if the Original Petition is found to be maintainable, it would inure no benefit to the appellants because they themselves admit that the extant Scheme is one settled by the Court in O.S.No.258/1999 and, therefore, that if they are dissatisfied by the same, their remedy would be to seek its modification, but not by attempting to file a separate suit. He thus prays that this appeal be dismissed.10. I have examined the averments in the Original Petition filed by the appellants under Section 92 of the CPC. There is no doubt that they expressly concede that the Trust in question is a Private one and that the Scheme now governing it has been settled by the Sub Court, Thiruvalla in O.S.No.258/1999.11. It is now too well settled, to be restated, that Section 92 of the CPC can apply only in the case where allegations are made against the administration of a Public Trust or Public Charity, but can never apply in the case of a Private Trust. When the appellants themselves assert in the Original Petition that the Trust for “Sree Vilya Panayannarkavu Bhagavathi Devaswom” is a Private one, comprised of family members, it becomes obvious that no Court can take cognizance of the same under the provisions of Section 92 of the CPC and will be obligated to dismiss it on this short ground alone.12. In fact, the contention of Sri.P.Haridas on this issue is incredulous to say the least, since he argues that even if his clients have expressly averred the Trust to be a private one, it was the duty of the Court to verify whether that statement was correct; and then proceed to consider the petition under Section 92 of the CPC on its merits. I am afraid that this submission is too farfetched to even obtain the attention of this Court because it is now well settled, through a catena of decisions of the Hon'ble Supreme Court in Swami Paramatmanand Saraswathi v. Ramji Tripathi ((1974) 2 SCC 695); R.M.Narayana Chettiar and Another v. L.Lakshmanan Chettiar ((1991) 1 SCC 48) and Vidyodaya Trust v. Mohan Prasad and Others ((2008) 4 SCC 115)13. When this position of law is irrefutable, I cannot comprehend how Sri.P.Haridas can cotend that even if his clients have admitted that the Trust in question is a private one, the Court should, nevertheless, inquisitorially dissect that statement and then conclude that the Trust is a public one. It goes without saying that this is not the line question of enquiry that a Court can embark upon while considering a petition for leave under Section 92 of the CPC.14. In th

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e afore circumstances, I am left without any doubt that the Original Petition filed by the appellants is not maintainable and that the Trial Court has dismissed it for valid reasons.15. As regards the additional contentions of Sri.Narendra Kumar, that the appellants could have only sought modifications of the earlier scheme settled by the Sub Court is concerned, I do not deem it necessary to enter into its merits, since I have already found that the Original Petition is not maintainable. This contention is thus left open to be pursued, if so necessary in future.Consequently, this appeal will stand dismissed; however, without making any order as to costs and directing the parties to suffer their respective costs.
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