Karnataka High Court
Sri K V Ramesh Kumar vs Sri. Ranganathaswamy on 21 February, 2025
Author: S.G.Pandit
Bench: S.G.Pandit
-1-
NC: 2025:KHC:7915-DB
RFA No. 1097 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2025
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1097 OF 2009 (DEC/INJ)
BETWEEN:
1. SRI. K.V. RAMESH KUMAR
S/O. LATE K. VISHVESWARAIAH
AGED ABOUT: 54 YEARS
R/AT NO.83, 2ND CROSS
K.V.LAYOUT, 4TH BLOCK EAST
JAYANAGAR, BENGALURU-560 011
2. SRI. K.V. SATHYANARAYANA
S/O. LATE K. VISHVESWARAIAH
SINCE DECEASED BY HIS LRs
2(A). SMT. B.K. SHAKUNTALA
Digitally signed by W/O. LATE SRI. K.V. SATHYANARAYANA
SHAKAMBARI
SINCE DECEASED BY HER LRs
Location: HIGH
COURT OF
KARNATAKA
2(B). SRI. K.S. MANJUNATH
S/O. LATE SRI. K.V. SATHYANARAYANA
AGED ABOUT: 50 YEARS
R/AT NO.5/9, "RANGASIRI"
1ST CROSS, K.V. LAYOUT
4TH BLOCK EAST, JAYANAGAR
BENGALURU-560 011
2(C). SMT. K.S. ROOPA
D/O. LATE SRI. K.V. SATHYANARAYANA
-2-
NC: 2025:KHC:7915-DB
RFA No. 1097 of 2009
W/O. SRI. G.V. VIJAYA KUAMR
AGED ABOUT 48 YEARS
R/AT NO.43/45, T-2
"SRI RANGAPRIYA RESIDENCY"
2ND CROSS, K.V. LAYOUT
4TH BLOCK EAST, JAYANAGAR
BENGALURU-560 011
...APPELLANTS
(BY SRI. R.B. SADASIVAPPA, ADVOCATE)
AND:
1. SRI. RANGANATHASWAMY
PRASANNA KAVETY TRUST
NO.45/3, 2ND CROSS
K.V. LAYOUT, 4TH BLOCK EAST
JAYANAGAR, BENGALURU-11
REPRESENTED BY ITS TRUSTEES
2. SMT. K. UMADEVI
W/O. LATE SRI. K. VISHVESWARAIAH
SINCE DECEASED BY HER LRs
2(A). SMT. K.M. BHAGYALAKSHMI @ G.S. MAMATHA
(MANAGING TRUSTEE OF RESPONDENT NO.1)
D/O. LATE SRI. G.C. SHIVANANDA AND
LATE SMT D.K. SUMITHRA
AGED ABOUT 51 YEARS
2(B). SMT. G.S. SRIDEVI
(TRUSTEE OF RESPONDENT NO.1)
D/O. LATE SRI. G.C. SHIVANANDA AND
LATE SMT. D.K. SUMITHRA
AGED ABOUT 47 YEARS
2(C). SRI. RAKSHITH ARVIND
(TRUSTEE OF RESPONDENT NO.1)
-3-
NC: 2025:KHC:7915-DB
RFA No. 1097 of 2009
S/O. LATE SRI. G.C. SHIVANANDA AND
LATE SMT. D.K. SUMITHRA
AGED ABOUT 42 YEARS
RESPONDENTS NO.2(A) TO 2(C) ARE
R/AT 45/3, 2ND CROSS
K.V. LAYOUT, JAYANAGAR
BENGALURU-560 011
3. SMT. NIRMALA C W/O. SRI. RAJABHASKAR
AGED ABOUT: 45 YEARS
R/AT NO.9/1, 1ST CROSS
3RD PHASE, 3RD BLOCK
BSK 3RD STAGE
BENGALURU-560 085
4. SMT. DHANALAKSHMI W/O SRI. VENUGOPAL
AGED ABOUT: 46 YEARS
R/AT NO.56/1-1, 2ND CROSS
2ND BLOCK, BSK 1ST STAGE
BENGALURU-560 050
5. SRI. N. JAYARAM S/O. SRI. CHENNAPPA NAIDU
AGED ABOUT: 53 YEARS
R/AT NO.615, 100 FT RING ROAD
KATRIGUPPE, BSK 3RD STAGE
BENGALURU-560 050.
...RESPONDENTS
(BY SRI. J.M. ANILKUMAR, ADVOCATE FOR R1;
SRI. GANAPATHI BHAT, ADVOCATE FOR R2;
VIDE ORDER DATED 21.06.2023
R3-SMT. NIRMALA C
R4 SMT. DHANALAKSHMI
R5-N. JAYARAM)
-4-
NC: 2025:KHC:7915-DB
RFA No. 1097 of 2009
THIS RFA IS FILED U/S 41 RULE 1 R/W SEC. 96 OF
CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.8.2009
PASSED IN OS.NO.7102/1997 ON THE FILE OF THE I ADDL.
CITY CIVIL & SESSIONS JUDGE, BANGALORE, (CCH-2),
DISMISSING THE SUIT FOR DIRECTION AND PERMANENT
INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J.,
DELIVERED/PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE S.G.PANDIT
and
HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
-5-
NC: 2025:KHC:7915-DB
RFA No. 1097 of 2009
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR)
The unsuccessful plaintiffs being aggrieved by the
judgment and decree dated 27.8.2009 passed in OS
No.7102/97 by the I Addl. City Civil and Sessions Judge
(CCH-2) Bengaluru City have preferred this appeal.
2. The records reveal that, during the pendency of
the appeal, appellant no.2 died and his LRs are brought on
record in the shape of appellant no.2(a) to (c) and
respondent no.2 died and her LRs are brought on record in
the shape of respondent nos. 2(a) to (c). Subsequently,
respondent nos.3 to 5 are impleaded. Accordingly, the
cause-title came to be amended.
The brief facts of the case upto this appeal are
as under:
NC: 2025:KHC:7915-DB
3. Plaintiff nos. 1 and 2 initially filed a
Misc.Petition NO.1094/94 before the Prl.City Civil and
Sessions Judge, Bengaluru under Section 92 of CPC
seeking leave of the Court to file a scheme suit against
defendants. On enquiry, the Prl.City Civil and Sessions
Judge, vide orders dated 19.09.1997 allowed the petition
and permitted the plaintiffs/petitioners to institute and
prosecute the proposed suit. Accordingly, the plaintiffs
filed the suit in OS No.7102/1994 seeking to pass a
judgment and decree with a prayer to grant the following
reliefs:
i. "Remove the defendant nos. 2 and 3 from
the Trusteeship or the Management of the
Trust properties;
ii. Direct the defendant no.2 and 3 to render
the proper accounts regarding the
management of the Trust and its
properties so far;
iii. Direct the defendant nos. 2 and 3 to pay
the cost of the suit and grant such other
NC: 2025:KHC:7915-DB
relief/s or further reliefs as this Hon'ble
Court deems fit in the circumstances of
the case including the cost of this plaint in
the interest of justice and equity; AND
iv. Pass a permanent injunction restraining
the defendant no. 2 and 3 or anybody
acting on their behalf alienating or
creating charge or encumbrance over the
schedule properties."
4. The plaintiffs have described the schedule
properties as Schedule 'A and B' in the plaint, which will be
described as Schedule A and B properties for convenience.
It is the case of the plaintiffs that, plaintiff no.1, his father
late K.Vishweshwaraiah, his father's second wife
K.Umadevi, K.N.Sathyanarayana and K.Vasudevaiah
formed a Trust and to that effect, the initial trust deed was
prepared on 13.5.1975. Subsequently, another trust deed
dated 15.5.1986 was authored in respect of the
immovable properties so situated at Jayanagara,
K.V.Layout 4th block East, Bengaluru, bearing site
Nos.44/4, 45/3, 46/2, 47/1, 48/5 and 16/6. According to
NC: 2025:KHC:7915-DB
plaintiffs, the first defendant is a Registered Public
Charitable Trust and each of the trusties stated supra
including late K.Vishweshwaraiah contributed Rs.101/-
each. The initial trust deed dated 13.5.1975 was in
between the first plaintiff, late K.Vishweshwaraiah and
defendant nos. 2 and 4 in respect of four properties
bearing site no.44/4, 45/3, 46/2 and 47/1 stated above.
Deceased K.Vishweshwaraiah authored another registered
trust deed in the year 1986 and included defendant nos. 2
and 3 as trustees and also included sites bearing No.48/5
and 16/6 so described in the plaint.
5. It is alleged that, in the second registered trust
deed dated 15.5.1986, there is no reference with regard to
earlier trust deed of 1975 but, it was understood that, the
trust deed of 1986 is a continuation of 1975 trust deed. As
per the object of the said trust, "the first defendant trust is
a `Public Trust' to provide facilities and amenities to the
poor students with regard to the education irrespective of
caste, religion, and community. Even the scholarship to
NC: 2025:KHC:7915-DB
such students was also provided, so also it was decided to
provide medical assistance to the persons who are in
need. The other object of the trust is to, construct
maternity wards in and around Bengaluru City, to provide
accommodation and lodging facilities to the poor students
irrespective of the community, caste, religion etc."
6. Even the first defendant-trust constructed the
Kalyana Mantap with all necessary facilities and it is a
public charity work undertaken by the first defendant with
the help of aforesaid trustees. There were constructions
made in the aforesaid properties in the year 1988-89
covering the entire 'A' schedule property. In the `A'
schedule property, on the western side, a construction was
put up with asbestos sheets in the year 1983 and it was
leased to a tenant by name M/s.Ganapathiraja Enterprises.
The Kalyana Mantap was also constructed to be leased on
rental basis and all efforts were made to improve 'A and B'
schedule properties. The temple so constructed is open for
the general public.
- 10 -
NC: 2025:KHC:7915-DB
7. It is further stated that, apart from 'A and B'
schedule property, the first defendant trust owns
jewellery, cooking utensils, furniture and gas installations
valued about Rs.2.5 lakhs. It is alleged that, deceased
K.Vishweshwaraiah during his lifetime was a Managing
Trustee and he used to take care of the entire
management of the first defendant-Trust and all other
trustees reposed confidence in him. He died on 16.6.1994.
8. It is specifically alleged that, as a Managing
Trustee, deceased K.Vishweswaraiah mismanaged the
Trust Management and used to behave as if he is the
absolute owner of the trust properties mentioned in the
trust deed. The second plaintiff has not been shown as a
trustee but, he became a trustee by virtue of judgment
and decree so passed in FDP No.75/1990 arising out of a
civil suit in OS No.52/1974, wherein preliminary decree
was passed by the Civil Court. The deceased
K.Vishweshwaraiah never accounted for the assets and
- 11 -
NC: 2025:KHC:7915-DB
liabilities of the trust. Because of the behaviour of the
deceased K.Vishweshwaraiah, plaintiff no.1 wanted to set
right the affairs of the trust and for proper management of
the trust, plaintiff no.1 sent letter to the trustees to
appoint a new Managing Trustee in place of late
K.Vishweshwaraiah after his demise and requested other
trustees to attend the meeting. But, defendant nos. 2 and
3 sent reply denying the status and locus of plaintiff no.1
to call the meeting. Defendant nos. 2 and 3 started acting
themselves as sole and absolute owners of schedule
properties and did not implement the aims and objects of
the trust as stated in the trust deed. As their activities are
detrimental to the interest of the trust, plaintiffs are
constrained to file a civil suit against defendants after
obtaining leave from Prl. City, Civil and Sessions Judge,
Bengaluru. Thus, it is prayed by the plaintiffs to decree the
suit.
9. Pursuant to the suit summons, defendant nos. 2
to 4 appeared, being the representatives of the defendant
- 12 -
NC: 2025:KHC:7915-DB
no.1 - Trust. Defendant no.2 has filed the written
statement, whereas, defendant nos. 3 and 4 did not file
their written statement. They died during the pendency of
the suit itself. Name of defendant no.4 came to be
deleted. As per the contents of written statement of
defendant no.2, she admits about existence of two trust
deeds as pleaded by the plaintiffs, but, denied the so
called mis-management by deceased K.Vishweshwaraiah
as alleged by the plaintiffs. It is the specific defence of
defendant no.2 that, defendant no.1 is the private trust
based upon the trust dated 15.5.1986. The earlier trust
deed was revoked with the consent of the beneficiaries
under Section 78 of the Indian Trusts Act, 1882. So far as
aims and objects of said trust are concerned, it is
admitted. It is contended that, the amount derived from
the assets of the trust is utilized for the welfare and
improvement of the trust. It is denied that, the said assets
are utilized by deceased K.Vishweshwaraiah or by these
defendants for their own purpose. As per the intention
expressed by the trustees, new rights are created as per
- 13 -
NC: 2025:KHC:7915-DB
trust deed of 1986. With regard to possessing of movable
properties as described in the plaint and its value at 2.5
lakhs rupees, is specifically denied.
10. It is contended that, defendant nos.2 to 4
continued to be the trustees of the first defendant
throughout. It is contended that, by passage of time, the
said trust deed underwent some rectifications by the
author. There were various litigations between parties to
the suit and most of the litigations are instituted by the
plaintiffs to cause harassment to deceased
K.Vishweshwaraiah who is their own father. With regard to
filing of a suit in OS NO.52/74 by the second plaintiff
seeking partition and obtaining of a preliminary decree, is
admitted. It is contended that, leave ought not have been
granted by the Prl.City Cvil Judge to file the present suit as
the claim of the plaintiffs is outside the purview of Sec.92
of CPC.
11. It is contented that, deceased
K.Vishweshwaraiah during his life time executed a `Will'
- 14 -
NC: 2025:KHC:7915-DB
on 22.5.1992 with codicil. He died leaving the properties
mentioned in the `Will' bequeathing his share in property
bearing No.40/48, II Crsss, K.V.Layout, 4th Block East,
Jayangar. Her foster daughter Sumithra is one of the
beneficiary. Even as per codicil also, he was the Managing
Trustee and by virtue of the Will, she succeeded his rights
to manage the trust. Hence, amongst other grounds, it is
prayed by defendant no.2 to dismiss the suit.
12. Based upon the rival pleadings of both the
parties, the learned trial Court settled six issues as under:-
1) "Whether the plaintiffs prove defendant no.1 is
a Public trust?
2) Whether the plaintiffs prove that the defendant
Nos.2 and 3 are liable to be removed from the
Trustee ship due to mis-management?
3) Whether the plaintiffs prove that the
defendants 2 and 3 are liable to render
accounts relating to the management of the
1st defendant Trust?
- 15 -
NC: 2025:KHC:7915-DB
4) Whether the defendant no.2 proves that the 1st
defend ant Trust is a Private family Trust of
late Sri K.Vishweshwaraiah?
5) Whether the 2nd defendant proves that the
Trust deed dated 13.5.1975 ceases to exist
due to execution of Trust Deed dated
15.5.1986?
6) What order?"
13. To substantiate the case of the plaintiffs,
plaintiff nos. 1 and 2 respectively were examined as PW.1
and 2 and got marked Exs.P1 to P21 and closed plaintiffs'
evidence. To rebut the evidence of the plaintiffs, defendant
no. 2 was examined as DW.1 and got marked Ex.D1 to D5
and closed defendants' evidence.
14. The learned trial Court, on hearing the
arguments and on evaluation of the evidence, answered
issue nos. 1, 3 and 5 in the negative and issue no.4 in the
negative and categorically held that plaintiffs have failed to
prove the status of first defendant trust as a `Public Trust'
but, in fact, it is a private trust and ultimately, dismissed
- 16 -
NC: 2025:KHC:7915-DB
the suit of the plaintiffs. This is how, now the plaintiffs are
before this Court challenging the dismissal of their suit.
15. Learned counsel for the plaintiffs would submit
that, looking to the aims and objects of the Trust, it can be
gathered that, it is the public trust, but, the learned trial
Court has committed a palpable error in holding that, it is
a private trust. Plaintiff nos. 1 and 2 are inter se brothers
being the sons of deceased K.Vishweshwaraiah the earlier
author of the trust and as, he mismanaged the assets and
liabilities of the trust and started behaving as he was the
absolute owner of schedule properties so described in the
trust deed and has not accounted for the assets and
liabilities, utilized the trust assets for his own purpose,
thus, the plaintiffs filed the present suit. So far as filing of
partition suit by plaintiff no.2 and obtaining a preliminary
decree ultimately which culminated into a final decree with
consent, it is not in dispute. That means, during the final
decree proceedings, dispute was compromised and final
decree was drawn. He would further submit that, because
- 17 -
NC: 2025:KHC:7915-DB
of the conduct of deceased, K.Vishweshwaraiah and after
his demise, the conduct of defendant No.2 clearly establish
that, though the schedule properties belong to the entire
family of plaintiffs and defendants, but, the trial Court has
wrongly held that they are the trust properties and
plaintiffs have no locus. In support of his submission, the
learned counsel for the plaintiffs took us through various
pleadings, evidence brought on record as well as position
of law. It is prayed by the counsel for the appellant-
plaintiffs to allow the appeal and set aside the impugned
judgment.
16. Per Contra, the learned counsel for defendant-
respondents on record would submit that, the reasons
assigned by the trial Court for dismissal of the suit of the
plaintiffs is justified. He would submit that, the said first
defendant-Trust is a Private Trust, therefore, now the
plaintiffs cannot claim any relief in the hands of this Court
as they are not entitled for the same. He too relies on the
- 18 -
NC: 2025:KHC:7915-DB
evidence led by the parties and findings of the trial Court
and prays to dismiss this appeal.
17. We have given our anxious consideration to the
arguments of both the side. With the assistance of learned
counsel for the parties, we have gone through the entire
evidence on record, oral as well as documentary.
18. In view of rival submissions of both the side,
the points that would arise for consideration are:
i. Whether the first defendant-Trust is a Public
Trust and during the lifetime of deceased
K.Vishweshwaraiah and after his demise
defendants are mismanaging the assets and
liabilities of the first defendant Trust and hence,
the plaintiffs' suit is required to be decreed as
prayed for?
ii. Whether defendants prove that first- defendant
Trust is a Private Trust and there is no
mismanagement of assets and liabilities of the
Trust at any point of time by deceased
- 19 -
NC: 2025:KHC:7915-DB
K.Vishweshwaraih or the defendants as
contended?
iii. Whether the finding of learned trial Court suffers
from illegality, infirmity and without appreciation
of evidence?
iv. If so, whether judgment and decree of the trial
Court requires interference by this Court?
Our answers to the above points are in the
negative for the following reasons:
Point nos. 1 to 4 are discussed together:
19. PW.1 being plaintiff no.1 has stated in line with
the plaint averments in his evidence on oath. According to
PW.1, the aims and objects of the first defendant-Trust
have been enumerated in Trust Deed dated 13.3.1975.
Authors of the Trust in all contributed Rs.404/- as initial
payment and also four vacant sites valued at Rs.40,000/-
situated at 4th Block East, K.V.Layout, Jayanagar,
Bengaluru described as A Schedule property. According to
- 20 -
NC: 2025:KHC:7915-DB
him, the salient features of Trust are, to provide medical
facilities to the needy persons in and around Bengaluru,
hostel facilities both boarding and lodging to the poor
students irrespective of caste and religion and to receive
donations for the benefit of the Trust. Thus, he is specific
throughout his evidence that the said trust is a public
trust. He would submit that, creation of 2nd trust by
Vishweshwaraiah on 15.5.1986 superseding the earlier
trust deed. Created doubt about the characters of
deceased Vishweshwaraiah. He maintains that, each of the
trustees contributed to the initial contribution so also two
vacant sites valued at Rs.1,01,000/- He submits that,
there is no mention about existing first defendant-Trust. It
is a fact admitted by both the parties that, the Trust Deeds
dated 13.5.1975 and 15.5.1986 constitute a single Trust.
20. It is the allegation of PW.1 that, whatever the
income derived from 'A and B' schedule properties are
expected to be utilized to meet out the aims and objects of
the trust. PW.1 admits that, none of the trustees have any
- 21 -
NC: 2025:KHC:7915-DB
power to utilize the assets and liabilities of first defendant-
Trust for their individual benefits. So far as filing of suit in
OS No.52/74 by plaintiff no.2 before the then Civil Judge
Court, Bengaluru for partition and separate possession
against his own father and others and decreeing of the suit
is admitted by him. Defendants also admits the said fact.
According to PW.1 during the pendency of the suit in OS
No.52/1974, the trust was formed and joint family
properties were transferred to the benefit of defendant
no.1-Trust. He states that, the preliminary decree so
passed in the aforesaid suit was challenged by deceased K.
Vishweshwaraiah by preferring RFA No.40/1980 which was
subsequently dismissed. He states with regard to
compromise between the parties in FDP No.75/1990.
According to him, he was enjoying the status of
`Trusteeship' and now the defendants are acting
detrimental to the interest of plaintiffs on the ill advise of
somebody and refused to part with the property so
allotted to PW.1 under the final decree. There was
postponement of proceedings of FDP by deceased
- 22 -
NC: 2025:KHC:7915-DB
K.Vishweshwaraiah. According to him, even there were
proceedings under the provisions of the then Karnataka
Rent Control Act against the tenants wherein deceased
K.Vishweshwaraiah had pleaded that, it is he, who is the
landlord of the properties. He also speaks about
withdrawal of said petitions after they got impleaded in the
said HRC proceedings.
21. The main allegation of the plaintiffs is that, the
income from the tenanted properties, and Kalyan Mantap,
have not been accounted by the deceased during his
lifetime, so also the defendants. They used to fetch more
rent per day and it is stated that because of the
mismanagement by the deceased K.Vishweshwaraiah with
regard to the assets and liabilities of the trust, so also the
present respondents/Defendants, the plaintiffs, were
constrained to file suit.
22. In support of his evidence, plaintiffs rely upon
Ex.P1 to P20. The cross-examination directed to this PW.1
shows that, both the trust deeds are admitted by the
- 23 -
NC: 2025:KHC:7915-DB
defendants. It is the specific contention of the defendants
that, it is a private trust and the properties of the trust are
being utilized for the welfare of the trust. PW.1 is specific
that the properties so standing in the name of defendant
no.1 trust was a joint family property. He admits that
during lifetime of his father, he had seen the accounts
relating to first defendant trust but, to prove the said fact,
except his say, there is no evidence placed on record by
this plaintiff no.1. The evidence so stated by PW.1 shows
that, for the second trust, his own relatives were the
trustees and the members of public were not taken as
trustees. He further states that, in the management of
second trust, there was no interference by the public.
23. It is the defence of defendants that, for the
purpose of payment of income tax, said K.Vishwesharaiah
had taken exemption but, PW.1 denies the same.
Throughout the examination-in-chief and even in cross-
examination PW.1 states that, the schedule properties are
the joint family properties. He admits that, the suit in OS
- 24 -
NC: 2025:KHC:7915-DB
No.3983/94 ended in a compromise and after reading the
same only he has signed the compromise petition. He has
denied all suggestions directed to him. Even, he denies
about execution of the 'Will' by his father, but, states that,
at the time of filing the compromise petition, he had read
the 'Will', but, further says that, he had not read any
codicil of that 'Will'. That means, this PW.1 is having
knowledge about the 'Will' executed by his father
K.Vishweshwaraiah. Throughout the cross-examination,
though he is consistent with regard to alleged
mismanagement but no documentary evidence is produced
to show that, first defendant trust is a public trust and its
assets are mismanaged by the author of the trust
K.Vishweshwariah.
24. PW.2 K.V.Sathyanarayana speaks in line with
the evidence of PW.1 and relies upon Ex.P1 to P20. He
admits that, except the rent received from Kalyan Mantap,
and the open place, the trust has no other income. He
admits that, during the life time of his father, he was
- 25 -
NC: 2025:KHC:7915-DB
looking after affairs of the trust. His evidence is very much
silent about the first defendant trust is public trust. The
nature of evidence spoken to by PW.1 and 2, do
demonstrate that, the said first defendant trust never
constitute as a public trust but, it is a private trust
authored by K.Vishweshwaraiah and his family members
only. Though the aims and objects of the trust are, to do
the charitable service to the general public at large,
especially weaker sections of the society, but, there is no
evidence placed on record by the plaintiffs that, the
donations are taken from the public to improve the trust
activities. Even the nature, aims, objects and the clauses
so stated in the initial trust deed 1975 marked at Ex.P1
and the second trust deed dated 15.5.1986 produced by
the plaintiffs never show that, it is a public trust. It is
named as `Sri Ranganath Swamy Kaveti Trust'.
25. DW.1 defendant no.2 has denied all the
allegations made in the plaint in her evidence and
specifically contends that, it is a private trust and never
- 26 -
NC: 2025:KHC:7915-DB
constituted public trust. It is not in dispute that, this
K.V.Sathyanarayapanna plaintiff no.2 filed suit 15.2.1984
seeking partition and separate possession of the properties
and the said suit came to be decreed as per the judgment
dated 9th October 1979. The copy of the same is produced
at Ex.P3. Ex.P4 is the compromise petition filed in FDP
No.75/1990 and the family properties of the plaintiffs and
K.Vishweshwaraiah were the subject matter of the suit
including the properties so stated in the trust deed as per
the case of the defendants. This fact is not denied by the
plaintiffs.
26. The other documents are, the proceedings
under the Karnataka Rent Control Act, notices so issued by
the plaintiff no.1 calling upon other trustees to appoint a
managing trustees for which the other trustees replied and
questioned the very status of plaintiff no.1 to call the
meeting. Though DW.1 has been cross-examined at length
but, she has withstood the test of cross-examination.
PW.1. has admitted the 'Will' of his father at the time of
- 27 -
NC: 2025:KHC:7915-DB
signing the compromise petition as per his own admission
As per the said 'Will' restriction was put to defendant no.2,
not to alienate the properties so stated in the Will Ex.D3.
All the trustees have got rights in the properties. But, now
plaintiffs challenge the very act of K.Vishwershwaraiah as
well as defendant No.2. Defendants also relied upon
various evidence.
27. Pertinently, it may be observed that, with
regard to the creation of the Trust, proceedings started on
13.5.1975 when Ex.P1 was authored by deceased
K.Vishweshwaraiah, K.V.Ramesh Kumar i.e. plaintiff no.1,
Smt.Umadevi Defendant no.2 and Sathyanarayana. All of
them became the trustees of first defendant by
contributing Rs.101/- each along with the immovable
properties so mentioned at Schedule 'A' in the trust deed
marked at Ex.P1. As per the contents of this trust deed, it
was recited that the trustees have to contribute money
from time to time either by themselves or by the members
of the respective families or by the members of the
- 28 -
NC: 2025:KHC:7915-DB
general public for the purpose of the trust as stated in the
trust deed.
28. The learned counsel for the plaintiff much relies
upon the aims and objectives of the trust, so also the
aforesaid recital and submits that, as there is a provision
for contribution from general public, it is a public trust.
Merely because there is a recital as stated above, it does
not mean that, the first defendant is a public trust. Clause
no.4 of trust deed Ex.P1 specifically speaks about "any
vacancy in the trusteeship by reasons of death, insolvency
or resignation may be filled up by the surviving trustees
and preferably from the legal representatives of the
deceased trustee in case the vacancy is caused by death."
This clause no.4 mandates to fill vacancy from family only.
Certain powers have been given to trustees, so also with
regard to management, control of the property etc.
29. Ex.P2 is authored by the same trustees by
adding one more family member by name K.Vasudevaiah.
- 29 -
NC: 2025:KHC:7915-DB
This Ex.P1 is superseded by authoring this Ex.P2. The
same recitals and clauses are incorporated in this Ex.P2
which are not in dispute.
30. It is not in dispute that K.V.Sathyanarayana
one of the trustee filed a suit for partition and separate
possession in OS No.52/1974 and the said suit was
decreed on 9.10.1979 granting a preliminary decree
awarding 1/3rd share in A schedule properties. The subject
matter of the suit as well as the trust properties are
similar in nature and they are one and the same. To that
effect, plaintiffs themselves have produced Ex.P3. On
perusal of the contents of judgment, it shows that,
deceased Vishweshwaraiah had constructed Kalyana
Mantapa, so also other tenements which are leased out.
He also has made other constructions in the property
belonging to the trust. The income from the said
properties is utilized for the purpose of welfare of the
trust. Even Ex.P4, the compromise petition filed before the
FDP Court also recites with regard to the creation of the
- 30 -
NC: 2025:KHC:7915-DB
trust with a religious and charitable object and the parties
have settled their disputes mutually and divided the
available properties of the joint family only among
themselves and kept the properties of the trust which are
directed to be jointly managed by all the members of the
family only. Even it is recited that, the defendant Nos.1
and 2 in the said suit had undertaken to incorporate the
name of the trust so also the name of the plaintiffs as a
trustee by incorporating necessary amendment to the
deed by passing the resolution.
31. No doubt, deceased K.Vishweshwaraiah filed
the petitions under the provisions of then Karnataka Rent
Control Act for eviction of the tenants. The trustees got
impleaded in the said petitions stating that, they have also
got right in the properties in question. The certified copies
of HRC petitions are produced by the plaintiffs at Ex.P8
and P9. On demise of K.Vishweshwaraiah, it was
K.V.Rameshkumar i.e., plaintiff no.1 issued notice as per
Ex.P11 with a request to all the trustees to attend a
- 31 -
NC: 2025:KHC:7915-DB
meeting in his house to appoint a managing trustee as the
managing trustee died. To that, reply was given by the
defendants stating that, the plaintiff no.1 had no such
right to call such a meeting etc., These events which are
stated above are not disputed by the plaintiffs.
32. The plaintiffs specifically contend that, first
defendant trust is a public trust. Evidently, Managing
Trustee K.Vishweshwaraiah died in the year 1994 after
authoring Ex.P2 the fresh Trust Deed.
33. Whether the first defendant is a public trust or
otherwise, we have to look into the definition of the trust
as defined under the provisions of the Bombay Public Trust
Act, 1950 (in short `the BPT Act). Section 2(13) defines
`the Public Trust' as under:
"Section 2(13) "Public trust" means an express or
constructive trust for either a public religious or
charitable purpose or both and includes a temple, a
math, a wakf, [church, synagogue, agiary or other
place of public religious worship,] [a dharmada] or
any other religious or charitable endowment and a
society formed either for a religious or charitable
- 32 -
NC: 2025:KHC:7915-DB
purpose or for both and registered under the Societies
Registration Act, 1860;"
34. The aforesaid definition of public trust came up
for consideration before the Hon'ble Apex Court in Bala
Shankar Maha Shanker Bhattjee and orthers v.
Charity Commissioner, Gujarat State, reported in AIR
1995 SC 167. The Hon'ble Apex Court after referring the
definition of public trust in para.7 of the judgment held as
under:
"7. A bare conjoint reading of the two definitions
would show that the definition of public trust is an
inclusive one bringing within its ambit, an express or
constructive trust for which a public religious or
charitable purpose or for both which includes a
temple, a math, a wakf, a dharmada or any other
religious or charitable endowment and a society
formed either for religious or charitable purpose or for
both and a registered society under the Societies
Registration Act. A public place by whatever
designation is temple when it is used as a place of
public religious worship. It must be dedicated to or for
the benefit of or used as of right by the Hindu
- 33 -
NC: 2025:KHC:7915-DB
community or any section thereof, as a place of public
religious worship."
35. Like that, the question whether temple or a
public trust or a private trust had come up for
consideration before the Hon'ble Apex Court in Deoki
Nandan v. Murlidhar and others, reported in AIR 1957
SC 133. The Apex Court highlighted the distinguishing
features between the private and public trust. The
distinction between private trust and public trust, it is
observed by the Hon'ble Apex Court that, "The distinction
between a private and a public trust is that whereas in the
former the beneficiaries are specific individuals, in the
latter they are the general public or a class thereof. While
in the former the beneficiaries are persons who are
ascertained or capable of being ascertained, in the latter
they constitute a body which is incapable of
ascertainment."
36. If this analogy is applied to the present facts of
the case, the beneficiaries are the trustees who intended
- 34 -
NC: 2025:KHC:7915-DB
to implement the clauses with regard to social service to
the public at large. No doubt they cannot be called as
beneficiaries but, there is no evidence placed on record
that, any of the public is being benefitted by the activities
of the Trust. Even the rent being accrued from the
tenements was utilized by Managing Trustee as per the
allegations made by the plaintiff and that receipt of the
rent from the said tenants have not been questioned even
right from 1975 onwards till 1986, when the second trust
deed came into existence and even thereafter till filing of
the suit. So far as the temple constructed in the said
property, the Hon'ble Apex Court in Hari Bhanu Maharaj
of Baroda v. Charity Commissioner, reported in AIR
1986 SC 2139 observed that "one of the crucial tests for
determining whether a temple is intended for private
worship or public worship is to find out whether the temple
has been constructed within the precincts of residential
quarters or in a separate building. In this case the Mandir
is within the precincts of the residential quarters of the
- 35 -
NC: 2025:KHC:7915-DB
appellant but the High Court has failed to give due
consideration to this aspect of the matter."
37. Here in this case, the property owned by the
family of the plaintiffs and trust properties are devoted or
dedicated to the first trust. Income from the properties so
mentioned in the trust deed was utilized towards
construction of temple as well as other tenements. Now
the dispute has arisen between plaintiffs and defendants
that, plaintiffs claim that, it is a public trust but,
defendants contend that it is a private trust. Therefore,
one of the features that is to be taken into consideration
by the Courts, while deciding this fact, the nature of the
trust being formed. There is no evidence placed on record
by the plaintiffs to show that, it is a public trust and the
public have got access over the same. In Kapoor Chand
and others v. Ganesh Dutt and others, reported in
1993 Supp (4) SCC 432, the Hon'ble Apex Court has
held with regard to the temple or a trust. It is held that "a
place in order to be a temple, must be a place for public
- 36 -
NC: 2025:KHC:7915-DB
religious worship used by such place and must be either
dedicated to the community at large or any section thereof
as a place of public religious worship. It is further held
that, distinction between a private and public temple is
now well settled".
38. Here in this case, the family members of the
plaintiffs and defendants are worshipping in the said
temples so stated in the plaint. As it is settled that, an idol
is a juristic person, capable of holding property, there is no
evidence placed on record that, the said temple is
dedicated to the beneficial interest of the public at large.
No doubt, the beneficiaries are the worshippers, dedication
may be oral and can be inferred from the conduct or from
the given set of facts and circumstances. But, in this case,
none of the ingredients with regard to dedication of said
properties for public use is not brought on record by the
plaintiffs by leading cogent and acceptable evidence. So to
say, this dedication to the public may be proved by
readiness or circumstances obtainable in given facts and
- 37 -
NC: 2025:KHC:7915-DB
circumstance. In given set of facts, from the evidence
placed on record by the plaintiffs, it is not possible to
prove actual dedication of the properties which may be
inferred on the proved facts that the said properties are
the public properties and public religious worship has been
used as of right by the public or a section thereof at such
place without let or hindrance. No such evidence is placed
on record. No inference can be drawn from the facts
brought on record by the plaintiffs to show that, it is a
public trust.
39. Further, Hyderabad High Court in Duvvuri
Rama Krishna Rao Trust v. Deputy Commissioner,
reported in 2015 SCC OnLine Hyd 307 has observed
with regard to distinction between public and private trust.
In para.26 of the said judgment, the said Court relied
upon the judgment of the Apex Court in Shri Vithal
Rukhamai Sansthan v. The Charity Commissioner, State of
Bombay with regard to the features of a public trust in a
given case. It is observed as under:
- 38 -
NC: 2025:KHC:7915-DB
"26. In Dhaneshwarbuwa Guru Purshottambuwa
owner of Shri Vithal Rukhamai Sansthan v. The
Charity Commissioner, State of Bombay, the Apex
Court while considering the Bombay Public Trust Act,
which defined the public trust and laid down certain
tests to determine whether a trust is a public or
private trust, held as follows:
It is not always possible to have all the
features of a public trust in a given case. Even some
of the tests laid down by Supreme Court may, in a
given case, be sufficient to enable the court to come
to a conclusion about the character of the trust.
When the origin of an endowment is obscure
and no direct oral evidence is available, the Court will
have to resolve the controversy about the character of
the trust on documentary evidence, if any, the object
and purpose for which the trust was created, the
consistent manner in which the property has been
dealt with or managed by those in charge, the manner
in which the property has long been used by the
public, the contribution of the public, to all intents and
purpose, as a matter of right without the least
interference or restriction from the temple authorities,
to foster maintenance of the worship, the accretion to
the trust property by way of grants from the State or
gifts from outsiders inconsistent with the private
- 39 -
NC: 2025:KHC:7915-DB
nature of the trust, the nature of devolution of the
property, are all important elements in determination
of the question whether a property is a private or a
public religious endowment."
40. If the observations of the Hon'ble Apex Court
and the law with regard to the private and public trust as
defined under the provisions of Bombay Public Trust, so
also Indian Trust Act, are applied to the given facts, from
the evidence placed on record, it is not proved by the
plaintiffs that, it is the public trust in the manner alleged
by them and it can never be stated that, this is a public
trust. That means, in a public trust, dedication is for the
use of benefit of public. When property is set apart for
worship of family god in which public are not interested,
dealing with the distinction between public and private
endowments in Hindu law, Sir Dinshah Mulla has said at
page 529 of his Principles of Hindu Law (11th Edn.)-- it
is observed that, such a Trust is a private one and not
public trust. For better appreciation, it is incorporated as
under:
- 40 -
NC: 2025:KHC:7915-DB
"Religious endowments are either public or private. In
a public endowment the dedication is for the use or
benefit of the public. When property is set apart for
the worship of a family god in which the public are not
interested, the endowment is a private one."
41. In the said book, the learned author dealt with
distinction between public and private trust. Therefore, the
plaintiffs have utterly failed to prove about the status of
defendant no.1 as public trust and rightly the trial Court
has given a finding that, the plaintiffs have failed to prove
their case with legal evidence.
42. We do not find any factual or legal error
committed by the trial Court in coming to such a
conclusion. As per the Trust Deed at Ex.P2, plaintiffs and
defendants shall act upon and take care of the activities of
the Trust. Hence, the aforesaid points for consideration are
answered against the plaintiffs and in favour of the
defendants.
- 41 -
NC: 2025:KHC:7915-DB
43. In view of our discussion as aforesaid, the
appeal filed by the appellant fails and is liable to be
dismissed. Resultantly, we pass the following:
ORDER
i. Appeal is dismissed.
ii. Judgment and decree dated 27.8.2009
passed in OS NO.7102/94 by the I
Addl.City Civil and Sessions Judge,
Bengaluru City (CCH-2) is confirmed.
iii. No order as to costs.
Sd/-
(S.G.PANDIT)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
SK/CT:VG
