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Case Number

A.S No. 172 of 1990

Attorney(S)

For the Appellant: N. Subramoniam, M.S. Naryanan & M.V. Mathew

Judges

K.G Balakrishnan, J.

Acts

Societies Registration Act and therefore the provisions contained in Section 92
Section 92 of the Code of Civil Procedure, 3
Section 92 of the Code of Civil Procedure
SOCIETIES REGISTRATION ACT
Section 92, C.P.C

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This is an appeal by defendants in a scheme suit brought under Section 92 of the Code of Civil Procedure concerning the administration of Akamala Sree Dharma Sastha Temple at Mullurkkara in Trissur District.

The plaintiffs sought dissolution of Ext. A-1 trust deed and consequential reliefs including framing a scheme for administration of the temple, alleging misfeasance and malfeasance by the defendants in managing the temple and its income. The plaint described the temple as of ancient origin on puramboke land, with donations from local worshippers, a sanctum sanctorum constructed in 1968, formation of a registered Sabha in 1977, and prior litigation between local management groups.

The defendants filed a detailed written statement asserting their competence to manage the temple and denying allegations of malfeasance. They recounted historical facts: recovery and reconsecration of an idol (at the instance of the 6th defendant), formation of a Samathi that collected funds and constructed buildings, later formation and registration of a Sabha, compromise of earlier litigation leading to an 18-member committee and a 7-member executive committee, appointment of staff, accounting practices, a bank account, and execution of a trust deed.

The trial Court (learned District Judge) found the suit maintainable, concluded that Ext. A-1 trust deed was not legally valid and set it aside, and allowed parties to file applications for a final decree along with draft schemes. Until a scheme was settled the defendants were to continue to manage the temple and were directed to furnish accounts. The defendants appealed from that decision.

Legal Issues Presented

Whether a suit under Section 92, C.P.C. is maintainable when the first plaintiff is the idol represented by its next friend (i.e., whether an idol represented by a next friend can support a Section 92 suit or whether a worshipper must bring the suit).
Whether registration of a body managing the temple under the Societies Registration Act alters the character of trust property so as to oust the applicability of Section 92 of the C.P.C.
Whether the Court below was justified in interfering with and setting aside Ext. A-1 trust deed and directing parties to prepare a scheme for administration, particularly in the absence of proved misfeasance or malfeasance.

Arguments of the Parties

Appellants' Arguments (Defendants)

The suit under Section 92, C.P.C. is not maintainable because the first plaintiff is the idol represented by its next friend, and an idol as a juristic person should not be the basis for such a suit.
The public trust allegedly created by the defendants was later registered under the Societies Registration Act and therefore Section 92 of the C.P.C. does not apply to the management or property of the society.
The Court below should not have interfered with the administration under Ext. A-1 trust deed because no misfeasance or malfeasance was proved and Ext. A-1 contains safeguards adequate to protect worshippers' interests; the Court ought not to have required a fresh scheme.

Respondents' / Plaintiffs' Pleadings (as reflected in the record)

Plaintiffs alleged that the temple is on puramboke land, is of ancient origin, receives offerings from the local public, and that income was significant enough to construct buildings and a sanctum sanctorum; they alleged misfeasance and malfeasance by defendants and sought removal of defendants from management and setting aside of the trust deed (Ext. A-1).
Defendants in their written statement claimed competence: the 6th defendant retrieved and reconsecrated a missing idol; a Samathi collected funds and constructed the sanctum sanctorum; a registered Sabha was formed later; litigation between Sabha and Samathi was compromised and an 18-member committee and a 7-member executive committee were formed; administrative measures including manager appointment, receipts for donations, and bank accounts were established; a trust deed was executed for proper management; defendants denied malfeasance and alleged the suit was motivated by jealousy.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bishwanath v. Radha Ballabhji, AIR 1967 SC 1044	The Supreme Court articulated that to invoke Section 92 C.P.C. three conditions must be satisfied: (i) the trust is created for public charitable or religious purposes; (ii) there was a breach of trust or a direction of Court is necessary in administration; and (iii) the relief claimed is one of the reliefs enumerated in Section 92. The case also held that a worshipper may represent an idol when the Shebait or manager acts adversely to the idol's interest, and that an idol may be a juristic person yet worshippers can have a deeper interest.	The court relied on this authority to reject the appellants' contention that a suit by the idol represented by a next friend was not maintainable. Applying Bishwanath, the court held that the suit as filed by a next friend/worshipper is maintainable under Section 92.
Keshava Panicker v. Damodara Panicker, 1975 Ker LT 797 : AIR 1976 Ker 86 (Full Bench)	The Full Bench held that registration under the Societies Registration Act does not change the character of properties that have already been constituted as trust properties; registration of a society does not invest society properties with the character of trust property, but where a trust had already been created for a charitable purpose, registration of a society later cannot alter the trust character of properties already impressed with the trust.	The court applied this principle to reject the appellants' plea that registration under the Societies Act changed the nature of the property and ousted Section 92's application. The court concluded the registration did not alter the character of trust properties and therefore the contention failed.

Court's Reasoning and Analysis

The court addressed the main contentions raised by the appellants through a sequential application of legal principles and the facts recorded in the pleadings and findings of the Court below.

First, on maintainability under Section 92, the court observed that although an idol may be regarded as a juristic person, in actions of this nature the idol is not a necessary party and aggrieved worshippers themselves may maintain a suit for framing a scheme for temple administration. The court relied on the Supreme Court's decision in Bishwanath v. Radha Ballabhji which set out the three conditions for invoking Section 92 and which also recognized that a worshipper may represent the idol when the manager acts adversely to the idol's interest. Applying that authority, the court concluded that a suit brought by a next friend on behalf of the idol is maintainable.

Second, the court analysed the contention that registration under the Societies Registration Act alters the character of trust property and thereby removes Section 92's applicability. The court relied on the Full Bench decision in Keshava Panicker v. Damodara Panicker (AIR 1976 Ker 86) which held that registration under the Societies Act does not change the character of properties already constituted as trust properties. Quoting that decision, the court rejected the appellants' contention that the registration converted the character of the trust property such that Section 92 would not apply.

Third, addressing the challenge to the Court below's interference with Ext. A-1 trust deed, the court examined the terms of that deed as found on the record. The court observed that:

Ext. A-1 was created by seven persons who styled themselves as trustees;
The deed did not reflect consensus of all worshippers or provide for broad-based inclusion or co-option of new trustees;
Removal or retirement and inclusion mechanisms were limited; a retiring trustee could nominate a successor only with concurrence of other members, and inclusion of any new member required concurrence of all trustees;
These provisions would allow perpetuation of administration in the hands of a few persons and lacked any express mechanism of public accountability.

The court reasoned that given the public character of the trust, vesting perpetual administrative power in a small, self-perpetuating group is contrary to the spirit of a public trust. On that basis the court found the District Judge's interference with Ext. A-1 and the direction to the parties to file a scheme for management to be justified.

Holding and Implications

Holding: The appeal is dismissed. The court upheld the District Judge's findings that Ext. A-1 trust deed is not legally valid and that parties should submit draft schemes for the administration of the temple.

Direct consequences and implications:

The judgment and decree of the District Judge setting aside Ext. A-1 and directing parties to file draft schemes for the temple administration stand affirmed.
Until a scheme is settled, the defendants were directed by the Court below to continue to manage the temple and to furnish accounts; that arrangement remains undisturbed by this appeal.
The court rejected the appellants' legal contentions (about non-maintainability when an idol is represented by a next friend, and about the effect of registration under the Societies Registration Act) by applying established precedent; the decision does not purport to create a new legal precedent beyond applying existing authorities to the facts of this case.

No costs were awarded to the appellants.

Appeal dismissed.

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Sukumaran And Others v. Akamala Sree Dharma Sastha Idol And Others

1. Defendants in a scheme suit filed under Section 92 of the Code of Civil Procedure are the appellants in this appeal. The suit relates to the administration of Akamala Sree Dharma Sastha Temple at Mullurkkara in Trissur District. The plaintiffs prayed for dissolution of Ext. A-1 trust deed and also consequential reliefs for framing a scheme for the administration of the temple. Plaintiffs had also alleged certain misfeasance and mal-feasance in the administration of the temple by the defendants. The Court below did not accept these allegations. However, the Court held that Ext. A-1 trust deed is not legally valid and therefore it was set aside; and the parties on either side were allowed to file application for passing a final decree along with a draft scheme and until such a scheme is settled the Court ordered that the defendants would continue to manage the affairs of the temple. The defendants were also directed to furnish accounts relating to the management of the temple. Aggrieved by this finding the present appeal is filed.

2. In the plaint the plaintiffs alleged that Akamala Sree Dharma Sastha Temple (‘Temple’) is in a puramboke land. This temple is of ancient origin, though the present idol was consecreted at a later stage. The temple is on the western side of Vadakkancherry Mullurkara road. People of the locality used to give offerings to the temple. The vehicles which pass through the nearby public road stop near the temple to make offerings. It seems that there was considerable income for the temple and with the co-operation of the people of the locality some buildings were constructed in the temple premises. A sanctum sanctorum was constructed with two rooms and verandah in 1968. In 1977 a committee was formed with the name Akamala Sree Dharma Sastha Sabha and it was registered under the Kerala Literary, Scientific and Charitable Societies Act. There were some litigations between the parties regarding the administration of the temple. The plaintiffs alleged that the defendants are now carrying on the administration of the temple according to their whims and fancies. They alleged that the income of the temple is not properly accounted and the defendants are trying to invest money on unnecessary matters and that they are also trying to create false accounts and therefore the plaintiffs wanted the removal of the defendants from the management of the temple.

3. The defendants filed a detailed written statement wherein they asserted that they are fully competent to conduct the management of the temple. They alleged that in 1969 an idol of the temple was found missing and it was at the instance of the 6th defendant that the missing idol was retrieved and the temple reconsecrated. The 6th defendant convened a meeting of local Hindus and A ‘Samathi’ was constituted and this Samathi collected funds and constructed the sanctum sanctorum and the nearby buildings. A permanent temple priest was appointed. In 1979 a group of some other people formed ‘Sree Dharma Satha Sabha’ and that too got its registration under the Charitable Societies Act. There arose a suit between the ‘Sabha’ and ‘Samathi’ which ended in litigation as O.S 77/79. That suit was compromised and it was decided that the management should be conducted by a committee consisting of 18 members. The defendants further alleged that these 18 member committee elected 7 members as executive committee. The entire administration of the temple was streamlined. This executive committee appointed a manager, two watchmen and a cook. The practice of giving receipts for the donation was started and an account also was started in the name of the committee in Bhanalakshmi bank. A trust deed was executed for the proper management of the affairs of the temple. The defendants contended that the suit as framed by the plaintiffs is not maintainable under Section 92 of the C.P.C The malfeasance and misfeasance alleged by the plaintiffs are denied by the defendants. According to the defendants in all respects the temple has prospects and the suit was filed out of jealousy.

4. On the above pleadings several issues were framed and the learned District Judge found that the suit is maintainable and as stated earlier the Court found that Ext. A-1 trust deed is not valid and the parties were allowed to submit a draft scheme and to pass a final decree accordingly.

5. The appellants' counsel urged several contentions. The first contention put forward by the counsel is that the suit under Section 92, C.P.C is not maintainable as the first plaintiff is the idol represented by its next friend and therefore the suit for the preparation of the scheme is not maintainable. The contention of the appellants cannot be accepted. It is true that the idol was not a necessary party in a case of this nature. The aggrieved parties themselves could have filed a suit for the preparation of the scheme for the administration of the temple. Even though the idol is a juristic person, in a suit of this nature the idol is not a necessary party. But that by itself does not affect the maintainability of the suit. It has been held by several authorities that a suit under Section 92, C.P.C for the administration of the temple can be filed by any worshipper. In Bishwanath v. Radha Ballabhji, AIR 1967 SC 1044 the Supreme Court considered the maintainability of a suit filed under Section 92, C.P.C That was a case where the suit filed by an idol for declaration of its title and possession of property from a person who is in possession thereof under a void alienation. While laying down the principles, the Supreme Court held in paragraph 7, page 1046, that, “to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein.” In that case it was also held by the Supreme Court that the worshipper is entitled to represent an idol when the Shebait or manager of the temple is acting adversely to its interest. The Supreme Court opined that even though the idol may be regarded as a jurisdical person capable as such of holding property, it is only in an ideal sense that the property is so held. The worshipper of an idol is a beneficiary though only in a spiritual sense. The worshipper who goes for the purpose of devotion, according to Hindu law and religion, has greater and deeper interest in temples than mere servants who serve for their pecuniary advantage. In this case the suit has been filed by the next friend and such a suit is maintainable.

6. Another contention raised by the appellants is that the public trust created by the defendants was later got registered under the Societies Registration Act and therefore the provisions contained in Section 92 of the C.P.C have no application. This plea is not correct in view of the Full Bench decision of this Court reported in Keshava Panicker v. Damodara Panicker, 1975 Ker LT 797 : (AIR 1976 Ker 86). That was a case in which the trust was created for the purpose of running a school. Later this school, which was being managed by the trust, was registered under the Societies Registration Act for its management. When a suit was filed under Section 92 of the C.P.C the contesting defendants contended that by virtue of the registration of the school under the Societies Registration Act it changed the character of the trust property and therefore Section 92 has no application. The Full Bench negatived this plea and held at page 88 (of AIR):

“The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated……….. if there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”

The plea of the appellants' counsel that the registration of the trust under the Societies Act will alter the nature and character of the property cannot be accepted.

7. Learned counsel for the appellants further contended that the Court below should not have interfered with the administration of the temple by the defendants as no misfeasance or malfeasance is proved. It was also urged that in Ext. A-1 trust deed there are sufficient safeguards to protect the interest of the worshippers and therefore the Court below should not have interfered with the same and asked the parties to file a fresh scheme for the administration of the temple. It may be noticed that Ext. A-1 trust-deed was created by 7 persons. It is not stated that Ext. A-1 trust deed came into exitence as a consensus of the opinion of all the worshippers. From the terms of Ext. A-1 it could only be discerned that all these persons styled themselves as trustees and made the trust deed. There is also no provision for inclusion or to co-opt any new member. If only one member retires the question of inclusion of another would arise, that too under limited circumstances. The retiring trustee can nominate one person as his successor and he can become a trustee with the concurrence of other members. Even for inclusion of any other member the concurrence of all the trustees is necessary. So, the terms in Ext. A-1 trust-deed would clearly show that these trustees wanted to perpetuate their power and right of administration forever. This being a public trust, investiture of power in the hands of a few persons would be against the spirit of public trust. In Ext. A-1 it is in no way stated that the trustees have a public accountability.

Under the above circumstances, the learned District Judge interfered with Ext. A-1 trust deed and directed that a scheme be filed by the parties for the management of the temple. So, I find no reason on interfere with the decree and judgment passed by the District Judge. The appeal suit fails and the same is dismissed. No costs.

Appeal dismissed.

Sukumaran And Others v. Akamala Sree Dharma Sastha Idol And Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (Defendants)

Respondents' / Plaintiffs' Pleadings (as reflected in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sukumaran And Others v. Akamala Sree Dharma Sastha Idol And Others

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