B Muralidhara Rao vs V Rama Tailor S/O Late Babu
2022 Latest Caselaw 10920 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 19TH DAY OF JULY 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

          R. F. A. NO.2248 OF 2007 (DEC)

BETWEEN:

1.     B. MURALIDHARA RAO
       S/O LATE B.GOPALAKRISHNA RAO
       AGED 60 YEARS
       R/O KSHIRASAGARA COMPOUND
       MULIHITHLU, BOLAR
       MANGALORE,
       D K DISTRICT 575 004.

2.     GAYATHRIDEVI
       W/O RAMAKRISHNA RAO
       AGED 50 YEARS
       R/O KSHIRASAGARA COMPOUND
       MULIHITHLU, BOLAR
       MANGALORE,
       D K DISTRICT 575 004.
                                      ...APPELLANTS

(BY SRI. RAVISHANKAR SHASTRY, ADVOCATE FOR
    SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

AND:

1.     V. RAMA, TAILOR
       S/O LATE BABU
       MAJOR, R/O DOOR NO.1-63/1,
                         2




     NEAR SRI. MAHADEVI BHAJANA MANDIR
     AT KARMAR OF ALAPE VILLAGE,
     MANGALORE CITY,
     D K DISTRICT 575 004.

2.   K. LOKESH
     S/O LATE K. SHANKARA BALAYYA
     MAJOR, R/O DOOR NO.2-32/25,
     ALAPE VILLAGE, MANGALORE CITY
     D K DISTRICT - 575 004.

3.   B. RAMANANDA RAO
     S/O LATE B. GOPALAKRISHNA RAO
     MAJOR, DEPUTY GENERAL MANAGER
     VIJAYA BANK, HEAD OFFICE M.G.ROAD
     BANGALORE.

4.   B. PRAKASHCHANDRA RAO
     S/O LATE B. GOPALAKRISHNA RAO
     AGED 58 YEARS
     R/O KSHIRASAGARA COMPOUND
     MULIHITHLU, BOLAR
     MANGALORE,
     D K DISTRICT 575 004.

5.   B. SUJATHA RAO
     D/O LATE B. GOPALAKRISHNA RAO
     AGED 56 YEARS
     R/O KSHIRASAGARA COMPOUND
     MULIHITHLU, BOLAR
     MANGALORE,
     D K DISTRICT 575 004.

6.   MAMATHA
     D/O LATE B. GOPALAKRISHNA RAO
     AGED 52 YEARS
     R/O KSHIRASAGARA COMPOUND
     MULIHITHLU, BOLAR
                          3




     MANGALORE,
     D K DISTRICT 575 004.

7.   ADARSHA VIDYAVARDHAKA SANGH
     A SOCIETY REGISTERED UNDER KARNATAKA
     SOCIETIES REGISTRATION ACT
     HAVING ITS OFFICE AT PADIL,
     ALAPE VILLAGE, MANGALORE CITY - 575 004
     REPRESENTED BY ITS
     SECRETARY M. JAYANANDA DEVADIGA.

                                    ...RESPONDENTS

(BY SRI. K SACHINDRA KARANTH, ADVOCATE FOR R2;
    R3, R4 & R6 - SERVED
    VIDE ORDER DATED 26.03.2014 SERVICE OF NOTICE
    TO R5 IS HELD SUFFICIENT.
    SRI. O. SHIVARAM BHAT, ADVOCATE FOR R7
    VIDE ORDER DATED 12.7.2013 APPEAL AGAINST
    R1 IS ABATED)


     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 07.02.2007 PASSED IN
O.S.NO.20/1998 ON THE FILE OF THE III ADDL. DIST.
JUDGE, D.K., C/C MANGALORE, DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.

     THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 04.07.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                    JUDGMENT

The appellants aggrieved by the judgment and

decree dated 07.02.2007, passed in O.S.No.20/1998

by the III Addl. District Judge, D.K., c/c Mangalore,

have filed this appeal.

2. Parties are referred to as per their ranking

before the Trial Court. The appellants are defendants

No.3 and 4, respondents No.1 and 2 are the plaintiffs,

respondents No.3, 4, 5, 6, 7 are defendants No.1, 2,

5, 6, 7 respectively, before the Trial Court.

3. Brief facts leading rise to filing of this appeal

are as under:

Plaintiffs filed a suit for declaration that the

schedule property is the subject of a constructive

Public Charitable Trust for the purpose of education of

boys and girls of Alape and Kannur Villages by

Adarsha Vidyavardhak Sangh of Alape, Mangalore

City, registered as Society No.4/70-71 of South

Kanara and for consequential relief of permanent

injunction, etc. It is the case of the plaintiffs that

early in the year 1969, father of defendants 1 to 6

namely B.Gopalakrishna Rao, since deceased, and his

associates decided to establish primary school at Padil

of Alape Village and to provide education to the boys

and girls of Alape and Kannur Villages. The said

villages did not have primary school and the villages

are situated on the outskirts of Mangalore city. The

schedule property was purchased ostensibly in the

name of Smt. Laxmi Devi, W/o B. Gopalakrishna Rao

and mother of defendants No.1 to 6 under registered

sale deed dated 28.01.1969. In the said sale deed

there is a recital that the purchaser desired to

purchase the property to be used for public purpose of

constructing a school and a Hindu orphanage building

and the vendor sold the property at a concessional

price, much below the market value of the property

and the said document further mandates that the

purchaser should construct a school and Hindu

orphanage building in the schedule property within

two years, and if the purchaser uses the property for

any other improvements for her own benefit, the

vendor shall be entitled to recover possession of the

property after paying back the consideration amount

with interest. After purchasing the schedule property,

defendant No.7 - Society was formed on 04.02.1969,

by the father of defendants No.1 to 6 and his

associates as the Founder Members. The said

defendant No.7 society was registered on 15.05.1970.

The object of forming defendant No.7 - Society is to

provide educational benefit to the children residing in

Alape and Kannur Villages. The mother of defendants

No.1 to 6 was a constructive Trustee and on her

death, defendants No.1 to 6 are her heirs and they

are constructive Trustees. As per the terms and

conditions of the registered sale deed, defendant No.7

has taken up the construction of the school building

on the schedule property by raising donations from

public and constructed a building and started a school

in the year 1981-82. Father of defendants No.1 to 6

continued to be the President of defendant No.7 up to

the year 1977 and thereafter as a Secretary of the

Sangh up to the year 1985 and for some time he also

worked as Headmaster of the School and teacher. It

is pleaded that the plaintiffs were among the donors

who contributed to the silver jubilee fund. It is learnt

that defendants No.1 to 6 filed a petition under the

provisions of the Karnataka Rent Control Act for

recovery of possession of schedule property. On

making further enquiry, the plaintiffs have become

aware that the alleged tenancy is false and there is no

document signed on behalf of the Sangh to prove the

alleged tenancy. To prevent the breach of

constructive trust for the public charitable trust of

providing education to the boys and girls of Alape and

Kannur Villages, it has become necessary for settling a

scheme for the administration of the Trust and to

remove the defendants No.1 to 6 from the

constructive Trusteeship and to vest the schedule

property in favour of defendant No.7. It is pleaded

that the plaintiffs are having interest in the

constructive public charitable trust and obtained leave

of the Court to file a suit under Section 92 of the CPC.

Hence this suit.

3.1. Defendant No.3 filed written statement

denying the averments made in the plaint and further

contended that the suit filed by the plaintiffs is not

maintainable. It is denied that the schedule property

was ostensibly purchased in the name of Smt. Laxmi

Devi by Late B. Gopalakrishna Rao. That if the

intention was to utilize the property for the benefit of

a Trust or to acquire the property in the name of

Trust, the vendor of the property would have executed

registered sale deed in favour of Trust. It is

contended that the condition imposed in the sale deed

is void and further contended that if the vendee fails

to comply with the conditions imposed in the

registered sale deed, it is for the purchaser to seek for

recovery of possession, but not for the plaintiffs. It is

pleaded that mother of defendants No.1 to 6 had

leased out the schedule property in favour of

defendant No.7 for running Higher Secondary School

since the father of defendants No.1 to 6 was the

President of defendant No.7 - Society and defendant

No.7 had availed a grant from the government on the

basis of payment of rent. It is further contended that

defendant No.7 got filed a false suit through the

plaintiffs against defendants No.1 to 6. Hence prayed

to dismiss the suit.

3.2. Defendant No.4 filed a memo adopting the

written statement of filed by defendant No.3.

3.3. Defendant No.7 filed a consenting written

statement and prayed to decree the suit of the

plaintiffs.

3.4. The Trial Court, on the basis of pleadings,

framed the following issues:

1. Was the suit property ostensibly purchased by B.Gopalakrishna Rao, the father of defendants 1 to 6, in the name of his wife Smt. Laxmi Devi, under the registered sale deed dated 28.01.1969?

2. Was the said purchase made for the purpose of constructing a school building and a Hindu Orphanage, alleged in para 3 of the plaint?

3. Was Smt. Laxmi Devi a constructive trustee of suit property? If so, have the defendants 1 to 6 became constructive trustees of said property on the death of their said mother?

4. Is the present suit not maintainable as pleaded in para 2 of the written statement of defendants 1 to 6?

5. Had the said Gopalakrishna Rao executed Registered Will dated 8.6.1984 bequeathing plaint 'A' schedule property in favour of defendants 1 to 6?

6. Is it necessary to settle a Scheme for the administration of alleged trust or to remove defendants 1 to 6 from trusteeship and to vest the property in 7th defendant ?

7. Is the suit barred by limitation?

3.5. In support of the case of plaintiffs, plaintiff

No.1 was examined as PW-1 and two witnesses as

PW-2 and PW-3 and got marked documents at Ex.P1

to Ex.P30. Defendants in support of their case have

examined one M. Jayananda Devadiga as DW-1 and

defendant No.3 is examined as DW-2 and got marked

documents at Ex.D1 to Ex.D21. The Trial Court after

recording the evidence and considering the material

on record, held that the schedule property was

ostensibly purchased by B. Gopalakrishna Roa in the

name of his wife Smt. Laxmi Devi under registered

sale deed dated 28.01.1969 and further recorded a

finding that the plaintiffs have proved that the

purchase is made for the purpose of constructing a

school and Hindu orphanage building. Further held

that the plaintiffs have proved that Smt. Laxmi Devi

was a constructive Trustee of the schedule property

and after her death, defendants No.1 to 6 became

constructive Trustees of the said property and further

held that the defendants No.1 to 6 have failed to

prove that suit is not maintainable and further held

that defendants No.1 to 6 have failed to prove that

their father executed a registered Will dated

08.06.1984, bequeathing plaint 'A' schedule property

in their favour and further held that the plaintiffs have

proved that it is necessary to settle a scheme for the

administration of alleged Trust or to remove

defendants No.1 to 6 from the Trusteeship and to vest

the property in the defendant No.7 and further held

that the defendants No.1 to 6 have failed to prove

that the suit is barred by limitation and consequently

decreed the suit of the plaintiffs as prayed for.

Defendants No.3 and 4 aggrieved by the judgment

and decree passed by the Trial Court, have filed this

appeal.

4. Heard learned counsel for the defendants

No.3 and 4 and learned counsel for the plaintiff No.2

and defendant No.7.

submits that the Trial Court has committed an error in

holding that the suit property was ostensibly

purchased by the father of defendants No.1 to 6 in the

name of his wife Smt. Laxmi Devi. He submits that

Ex.P1 which is a registered sale deed is an absolute

sale and the schedule property was purchased by the

mother of defendants No.1 to 6 and she became the

absolute owner. He submits that if the condition

mentioned in the sale deed is violated, the vendor can

seek for reconveyance, but the plaintiffs have no locus

standi to file a suit. He further submits that the

schedule property is not the property of defendant

No.7 - Society. Hence the suit filed by the plaintiffs

under Section 92 of the CPC is not maintainable. He

submits that the Trial Court has overlooked the

admission of PW-1 and PW-2 that there are no

documentary evidence regarding collection of donation

from public for purchase of land. Hence he submits

that the Trial Court has committed an error in passing

the impugned judgment and decree. Hence on these

grounds, he prays to allow the appeal.

6. Per contra, learned counsel for plaintiff No.2

submits that the property was purchased by the father

of defendants No.1 to 6 in the name of his wife Smt.

Laxmi Devi for the purpose of establishing a Primary

School at Alape and Kannur Villages and mother of

defendants No.1 to 6 is the ostensible owner. He

further submits that there is a condition in the

registered sale deed that the property is to be used

for the public purpose for constructing a school and

Hindu orphanage building and the vendor has sold the

property at a concessional price for the said cause.

He submits that the said property is the property of

defendant No.7 and defendants No.1 to 6 created the

document i.e., registered Will dated 08.06.1984. He

submits that the Trial Court after considering the

entire material on record was justified in passing the

impugned judgment and decree. Hence on these

grounds, he prays to dismiss the appeal.

7. Learned counsel for defendant No.7 adopts

the arguments of learned counsel for plaintiff No.2.

8. Perused the records and considered the

submissions made by learned counsel for the parties.

     9.     The      following   points   arise   for   my

consideration:

(1) Whether plaintiffs prove that Smt. Laxmi Devi was the constructive Trustee of the suit property and the suit property was ostensibly purchased by Gopalakrishna Rao in the name of his wife Smt. Laxmi Devi under the registered sale deed dated 28.01.1969?

(2) Whether the defendants No.1 to 6 prove that suit is not maintainable as pleaded in para-2 of the written statement filed by them?

(3) Whether defendants No.3 & 4 have made out grounds for interference with the impugned judgment and decree?

(4) What order or decree?

10. Point No.1: It is the case of the plaintiffs

that father of defendants No.1 to 6 purchased the suit

property under registered sale deed dated

28.01.1989, in the name of his wife Smt. Laxmi Devi

and the said sale deed is not an absolute sale deed,

but is a conditional sale deed and it was only an

ostensible purchase. The property purchased was to

be used for the public purpose of constructing a school

and Hindu orphanage building. The consideration

amount was on concession with a condition to

construct the school and Hindu orphanage building

within two years, if not, the property has to be

returned to the vendor and vendor has to pay the

consideration amount to Smt. Laxmi Devi without

interest. Plaintiff No.1 was examined as PW-1. In his

examination-in-chief, he has reiterated the averments

made in the plaint. He admits in the course of cross-

examination that he is not a member of defendant

No.7 - Society and father of defendants No.1 to 6 was

the President, Secretary and Headmaster of the

School. He has stated that he do not know the names

of the donors who have donated for the purpose of

school building. He further stated that he do not have

any records to show that defendant No.7 has collected

donation from public. He do not know that the

children of Laxmi Devi had let out the property to

defendant No.7. He denies that defendant No.7 was

paying a monthly rent of Rs.630/- to defendants No.1

to 6.

11. One Sri. P. L. Upadhyaya was examined as

PW-2 who was the Secretary when father of

defendants No.1 to 6 was the President of the

Institution. He has deposed that defendant No.7 was

established to see that poor students of Alape and

Kannur Village were provided education and requested

the vendor to sell the property for school purpose.

PW-2 has stated that they have raised donation from

public and as the Society was yet to be registered, the

land was purchased in the name of mother of

defendants No.1 to 6 and school building was

constructed by raising donation from public and he

has contributed Rs.500/- towards construction of

building. One K. Narayana was examined as PW-3 to

establish that he has also given a contribution to the

father of defendants No.1 to 6 for construction of

school and Hindu orphanage building.

12. DW-1 was the Secretary of defendant No.7

and supports the case of plaintiffs. Defendant No.3

was examined as DW-2. In his examination-in-chief,

he has reiterated the averments made in the written

statement. In the cross-examination he admits that

the school was started on 05.06.1970, and defendant

No.7 - Society was registered on 15.05.1970, and his

father gave an application for establishment of

defendant No.7 and also admitted the execution of

registered sale deed at Ex.P1 in favour of his mother

Laxmi Devi.

13. The plaintiffs have to prove that the suit

property was purchased by Sri. Gopalakrishna Rao in

the name of his wife only for the sake of construction

of school and Hindu orphanage building and Smt.

Laxmi Devi was the constructive Trustee and actually

it was not intended to be sold in the name of Laxmi

Devi for her personal use and further plaintiffs have to

prove that the said land was purchased out of

donation received from public. Admittedly, the

property was purchased by Laxmi Devi under

registered sale deed dated 28.01.1969. Though there

is a condition in the registered sale deed that the

vendee should use the property for the public purpose

for construction of school and Hindu orphanage

building within a period of two years. Merely because

vendor sells a land for a particular purpose, he does

not get right to insist that vendee should fulfill the

wish of the vendor. If it is a conditional sale, it is

open for the vendee to cancel the registered sale

deed. There is no right vested in the plaintiffs to seek

a declaration in the Court of law and compel the

defendants 1 to 6 to fulfill their wish.

15. In the instant case, mother of defendants

No.1 to 6 is a Hindu and she has acquired the said

property under registered sale deed and she was the

absolute owner of the suit property and she was not a

constructive Trustee. It is necessary to consider

Section 14 of the Hindu Succession Act reads as

under:

Section 14 of Hindu Succession Act

"14. Property of a female Hindu to be her absolute property.- (1) Any property

possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance of arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other Instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

Section 14 provides that if Hindu female acquires a

property under a written instrument, shall be held as

a full owner. As observed above, Laxmi Devi has

acquired property under registered sale deed and she

became the full owner of the suit schedule property.

It is the case of the plaintiff that there is a condition in

the sale deed and mother of defendants 1 to 6 i.e.,

Laxmi Devi did not comply with the condition

mentioned in the registered sale deed. If the said

condition is violated, it is for the vendor to take steps

for cancellation of sale deed. The plaintiffs have no

locus standi to challenge the registered sale deed. It

is for the vendor of Laxmi Devi to seek for cancellation

of the registered sale deed on the ground of violation

of conditions in the sale deed. The vendor of Laxmi

Devi has not taken any steps for cancellation of

registered sale deed.

16. The plaintiffs in order to prove that the said

property was purchased out of the donations received

by defendant No.7, have not produced any records.

On the contrary, defendants No.1 to 6 have produced

Ex.D1 to D20 which are the audit reports of defendant

No.7 from 1986-2005. Perusal of the audit report

discloses that the defendants No.1 to 6 have received

donation from the public and also grant from the

Government for construction and maintenance of the

building. The plaintiffs and defendant No.7 have not

produced any records to show that they have received

donations from the public in the year 1969 i.e., as on

the date of purchase of suit land. Further, the

property was purchased in the year 1969 and

defendant No.7 was registered on 15.05.1970.

Defendant No.7 was not in existence as on the date of

purchase of the suit property. The said fact was not

considered by the Trial Court and has proceeded to

pass the impugned judgment and decree holding that

the plaintiffs have proved that the suit property was

ostensibly purchased by Gopalakrishna Rao in the

name of his wife Smt. Laxmi Devi under registered

sale deed. Section 92 of the CPC confers a right on a

person in case of any alleged breach of any express or

constructive Trust created for public purpose of a

charitable or religious nature. The plaintiffs have

failed to prove that Smt. Laxmi Devi was the

constructive Trustee of the suit property. The finding

recorded by the Trial Court on issue No.1 is without

any basis. In view of the above discussion, I answer

point No.1 in negative.

17. Point No.2: It is the case of the plaintiffs

that the schedule property was ostensibly purchased

in the name of Smt. Laxmi Devi, by her late husband.

It is not explained as to why Late Gopalkrishna Rao

had purchased the property in the name of his wife, if

really the intention was to utilize it for Trust purpose.

Further the plaintiffs have not attributed any mala

fides on the part of Late Gopalakrishna Rao. If the

intention of Gopalakrishna Rao was to acquire the

property for the benefit of Trust, the vendor of the

property would have executed a registered sale deed

in favour of the Trust, As observed above, the suit

property is not the Trust property. Hence, suit filed

under Section 92 of the CPC is not maintainable. In

view of the above discussion, defendants No.1 to 6

have proved that the suit filed by the plaintiffs is not

maintainable. In view of the above discussion, I

answer point No.2 in the affirmative.

18. Point No.3: In view of the above answers to

point Nos.1 and 2, the Trial Court has committed an

error in decreeing the suit of the plaintiffs. The

defendants No.3 and 4 have made out grounds for

interference with the impugned judgment and decree

passed by the Trial Court. Accordingly, I answer point

No.3 in the affirmative.

19. Point No.4: In view of the above discussion,

I proceed to pass the following:

ORDER

The appeal is allowed.

The judgment and decree dated 07.02.2007, passed in O.S.No.20/1998 by the III Addl. District Judge, D.K., Mangalore, is set aside. Consequently, the suit of the plaintiffs is dismissed.

SD/-

JUDGE

RD