Kerala High Court
Mathew Poulose vs M/S. Mukkadayil Susan Memorial Trust on 6 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
RSA NO. 193 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 21.09.2023 IN AS NO.63 OF
2019 OF THE COURT OF ADDITIONAL DISTRICT JUDGE-I, KOLLAM ARISING
OUT OF THE JUDGMENT AND DECREE DATED 28.03.2019 IN OS NO.278 OF
2015 OF ADDITIONAL MUNSIFF COURT, KOLLAM
APPELLANT/1ST RESPONDENT/PLAINTIFF:
MATHEW POULOSE
AGED 53 YEARS
S/O. M.J.POULOSE, MUKKADAYIL PUTHEN BUNGLOW, INCHAVILA,
PERINAD,KOLLAM DISTRICT, PIN - 691601
BY ADVS.
G.P.SHINOD
GOVIND PADMANAABHAN
AJIT G ANJARLEKAR
ATUL MATHEWS
GAYATHRI S.B.
RESPONDENTS/2ND RESPONDENT & APPELLANTS 1,2/DEFENDANTS:
1 M/S. MUKKADAYIL SUSAN MEMORIAL TRUST
INCHAVILA , PERINAD, KOLLAM DISTRICT, PIN - 691601
2 DR. JOHN M.JOHNSON
S/O. M.O.JOHN, MUKKADAYIL PUTHEN BUNGLOW, INCHAVILA,
PERINAD, KOLLAM DISTRICT - NOW RESIDING AT NO.3413,
TURNEY AVENUE, PHONENIX, ARIZONA, 85018 USA,
REPRESENTED BY POWER OF ATTORNEY HOLDER JUSTUS PHILIP,
S/O. REV. K.P.PHILIP, KATTOORAZHIKAM, CANTONMENT,
KOLLAM DISTRICT, PIN - 691001
3 JUSTUS PHILIP
S/O. REV. K.P.PHILIP, KATTOORAZHIKAM, CANTONMENT,
KOLLAM DISTRICT, PIN - 691001
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
R.S.A.No.193 of 2024
C.S.SUDHA, J.
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R.S.A.No.193 of 2024
---------------------------------------------
Dated this the 6th day of June 2024
JUDGMENT
This second appeal under Section 100 read with Order
XLII Rule 1 CPC filed by the plaintiff/appellant is against the
judgment and decree dated 21/09/2023 in A.S.No.63/2019 on the
file of the Court of Additional District Judge-I, Kollam, which
appeal in turn is against the judgment and decree dated 28/03/2019
in O.S.No.278/2015 on the file of the Additional Munsiff Court,
Kollam. The parties and the documents will be referred to as
described in O.S.No.278/2015.
2. According to the plaintiff, he is a member of
Mukkadayil family, an ancient Christian family. The suit has been
filed in a representative capacity on behalf of all the members of
the family interested in the subject matter of the suit. The first
defendant is a family trust formed by the members of the family to
co-commemorate late Susan, the youngest female member of the
family who passed away on 11/05/1974. The members of the
aforesaid family decided to form a trust in the name of late Susan
and so the second defendant, her brother, was authorised to take
necessary steps for the same. The third defendant is the power of
attorney holder of the second defendant. The husband of late Susan
had returned all her gold ornaments and dowry to the second
defendant, who received the same as a trustee. The second
defendant, settled in USA, had opened accounts in the name of the
trust and used to send money for charity work. In the year 1993,
the second defendant transferred 19 cents of property to the
plaintiff. The plaint schedule property having an extent of 10 cents
was retained by the second defendant and a shrine was constructed
in the property by the members of the trust and the said prayer
room became the place of worship of the members of the family as
well as the trust. The plaintiff was given custody of the prayer
room during the period from 1995 to 2012. The third defendant
filed a petition before the police falsely alleging that the plaintiff
was not properly maintaining the prayer hall. It is the third
defendant who is now taking care of the prayer room. The second
defendant had collected huge amounts in the name of the trust.
Now the second defendant is attempting to transfer the property to
third persons, for which he has no right. The property belongs to
the trust and hence the suit seeking a decree for declaring that the
plaint schedule property and the prayer room situated therein has
been dedicated and vested with the first defendant trust. A decree
of permanent prohibitory injunction was also sought to restrain
defendants 2 and 3 from alienating the plaint schedule property;
encumbering the same or from obstructing the plaintiff and other
members of the public from using the room in the property as a
prayer room.
3. The first defendant trust was not represented by
anybody and therefore none appeared for the first defendant.
Defendants 2 and 3 filed written statement denying the plaint
allegations. According to them, the plaintiff has no right to file the
suit in a representative capacity as he has not been authorised by
any member of the family to do so. The plaint schedule property
and the building therein belongs to the second defendant. The
plaintiff, an alcoholic, does not have any right over the property.
The allegation that there is a trust in relation to the property, was
denied. There was never any decision by the members of the
family to form a trust. No property or valuables of late Susan had
been received by the second defendant from her husband. The
second defendant had not received any amount as contribution
towards the trust. There is no shrine in the plaint schedule
property. The plaintiff was never given possession of the
room/building in the plaint schedule property. The suit has been
filed only because the second defendant stopped giving financial
assistance to the plaintiff. The second defendant is the absolute
owner of the property as per deed no.4350/1971. As he is the
absolute owner of the property and as he is settled in USA, he
decided to sell the property and then the plaintiff has filed the
present suit, raising false allegations.
4. Necessary issues were framed by the trial court. On the
basis of the aforesaid pleadings, the parties went to trial. PW1 was
examined and Exts.A1 to A27 were marked on the side of the
plaintiff. DW1 was examined on behalf of defendants 2 and 3 and
Exts.B1 to B4 were marked. The report and plan of the advocate
commissioner has been marked as Exts.C1 and C2. The trial court
decreed the suit holding the existence of a trust as alleged by the
plaintiff. The trial court also went on to find that the first defendant
is a public trust and that the prayer hall in the property was being
used by the members of the public also. Aggrieved, defendants 2
and 3 preferred A.S.No.63/2019. The first appellate court by the
impugned judgment found no evidence of dedication of the
property by the second defendant for the trust and hence reversed
the judgment and decree of the trial court. Aggrieved, the plaintiff
has come up in second appeal.
5. Heard the learned counsel for the plaintiff/appellant.
6. It was quite persuasively and strenuously argued by the
learned counsel for the plaintiff/appellant that the first appellate
court grossly erred in reversing a well reasoned judgment of the
trial court on a complete misappreciation of the evidence on record.
Though evidence on record was plenty to show the existence of a
public trust, the same were wrongly ignored by the first appellate
court. The findings of the first appellate court are perverse and
illegal and hence the judgment and decree of the first appellate
court are liable to be reversed, goes the argument. In support of the
arguments, the learned counsel relied on the dictums in Mogera
Nema Daivasthana Parankila v. Seethamma, 2012(4) KHC 165
and Ismail Hajee Essa Trust v. Muslim Education Society,
2017(1) KHC 916.
7. As held in Mogera Nema Daivasthana Parankila
(Supra), dedication of property is neither a gift requiring an
acceptance by the donee nor is it a trust. Dedication for a religious
or a charitable purpose as also a gift to an idol may even be oral
and there is no mandate that it should be a registered instrument. It
is also true as held by the Division Bench of this Court, relying on
the dictum in Bihar State Board Religious Trust v. Mahant Sri
Biseshwar Das, AIR 1971 SC 2057, in Ismail Hajee Essa Trust
(Supra) that it is not necessary to execute an instrument in writing
signed by the author of the trust and register it for the creation of a
public trust. The same may be necessary under Section 5 of the
Indian Trust Act, 1882 relating to a private trust. What is essential
in the case of a public trust is that there should be an unambiguous
expression of intention to divest the interest of the donor for the
benefit of the trust. Such divestiture can be proved by attendant
circumstances and it is not necessary that there should be a writing
to constitute a valid dedication.
8. The first defendant in the plaint is described as -
"M/s.Mukkadayil Susan Memorial Trust, Inchavila, Perinadu".
Therefore as rightly held by the first appellate court, the trust has
not been properly described. The person who is to represent the
trust has not been referred to or made a party in the plaint and
therefore the finding that the alleged trust was not properly
represented, suffers from no infirmity.
9. As rightly noticed by the first appellate court the trial
court relied on two circumstances to decree the suit - (i) the prayer
hall in the property is in the name of Susan Memorial prayer room
and (ii) the failure of the second defendant to enter the witness box
and hence an adverse inference was drawn against him.
Admittedly, the plaint schedule property in which the prayer hall is
situated belongs to the second defendant. The specific case of the
plaintiff is that the second defendant had dedicated the prayer room
in the property to the trust and thereafter all the family members as
well as the public are using it as a prayer room. Though such an
allegation was taken up, no evidence was let in to establish the
same. As held in Ismail Hajee Essa Trust (Supra), what is
essential is that there should be an unambiguous expression of
intention to divest the interest of the donor for the benefit of the
trust. In the case on hand there is no evidence of such
unambiguous expression of intention by the second defendant to
divest his interest in favour of the alleged trust. It is true that some
documents produced by the plaintiff show the name of the trust on
the same. In the plaint, the plaintiff has no case that there was a
written deed relating to the trust. However, the plaintiff when
examined as PW1 deposed that there is a written deed and that the
same is in the possession of the second defendant. If that be so, he
ought to have taken steps to direct the second defendant to produce
the deed before the court. No such step was ever taken by the
plaintiff. Therefore, it can be seen that the plaintiff has also no
consistent case of whether the trust came into being as per an oral
agreement or whether there was a written deed relating to the trust.
10. The plaintiff also alleges that the intention of the second
defendant in constructing the prayer room was for the use of the
family members. If that be so, there must be some family
member(s) who can speak of the same. However, none of the so
called family members who are using the room in the plaint
schedule property as a prayer room subsequent to the formation of
the trust was ever examined. The trial court as rightly pointed out
by the first appellate court, wrongly placed the burden of proof on
the defendants. The plaintiff cannot succeed on the weakness of
the case of the defendant or by taking advantage of the loopholes in
the case of the defendants. The plaintiff is the dominus litis and he
can succeed only if he is able to establish the right claimed in the
plaint. In the case on hand, there is no satisfactory evidence to
show that the second defendant had dedicated his property and that
a public trust had come into being. The second defendant may
have constructed a room in memory of his sister in the property. In
Exts.A13 and A14 complaints given to the police by the third
defendant on behalf of the second defendant, there may be an
allegation, which was noticed by the first appellate court, to the
effect that the plaintiff was not permitting the relatives of the
defendants to pray in the hall. Even if that be so, the same does not
make out a case of dedication or creation of a trust. Though the
plaintiff has a case that the prayer room was dedicated to the trust;
that it is a public trust and that even the members of the public used
to pray in the hall, there is absolutely no evidence adduced to
substantiate the same. The second defendant may have permitted
his relatives to offer prayers in the room constructed in memory of
his sister and the room may also be named after his sister. But that
would not amount to a dedication or creation of a public trust as
claimed by the plaintiff. The trial court went wrong in appreciating
the principle of burden of proof and wrongly casting the burden on
the defendants. There was a misappreciation of the evidence on
record and the precedents on the point by the trial court, which was
rightly interfered with by the first appellate court. There is no
infirmity or perversity in the findings of the first appellate court
calling for an interference by this Court. As no substantial
questions of law arise, the appeal is liable to be dismissed in limine
and hence I do so.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
ami/
