Kerala High Court
Vikraman P vs Sree Nithyananda Vidya Kendra on 18 July, 2025
FAO NO.140 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 18TH DAY OF JULY 2025 / 27TH ASHADHA, 1947
FAO NO. 140 OF 2024
AGAINST THE JUDGMENT DATED 22.10.2024 IN OP NO.7 OF 2022 OF SUB
COURT, KASARAGOD
APPELLANTS/PETITIONERS:
1 VIKRAMAN P.
AGED 53 YEARS
S/O. KUNHAMBU KURUKKAL, KASHI NIVAS, PADINJATTANKUZHY,
PALLOT, MAVUNGAL, KASARAGOD DISTRICT, PIN, PIN - 671531
2 A.RAJEEVAN
AGED 52 YEARS
S/O. KRISHNAN NAIR, ARAVATH HOUSE, PADINHATTAN KOVVAL,
NILESHWAR POST AND VILLAGE, HOSDURG TALUK, KASARAGOD
DISTRICT, PIN - 671314
BY ADVS.
SRI.S.VINOD BHAT
KUM.ANAGHA LAKSHMY RAMAN
SMT.V.NAMITHA
SMT.GITANJALI SADAN PILLAI
RESPONDENTS/RESPONDENTS:
1 SREE NITHYANANDA VIDYA KENDRA
KANHANGAD, KANHANGAD P.O. KASARAGOD DISTRICT. REGISTERED
UNDER THE SOCIETY REGISTRATION ACT, 1860, REPRESENTED BY ITS
SECRETARY -T.PREMANAD, PIN - 671315
2 NITHYANANDA KHODAY
AGED 65 YEARS
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S/O RAMACHANDRA KHODAY, BREWERY HOUSE, 7TH MILE, KANAKAPURA
ROAD, BANGALORE, PIN - 560062
3 DIVAKAR SHETTY
AGED 62 YEARS
SRI SRDHI SAI BABA MANDHIR, THOTADAMANE, SAI BABA NAGAR,
KODAVOOR, KODAVOOR VILLAGE, UDUPPI, UDUPPI TALUK, UDUPPI
DISTRICT, KARNATAKA STATE., PIN - 576105
4 B.NAGRAJ SHETTY
AGED 67 YEARS
S/O SANJEEV SHETTY, SRI RAM', BEJAI CHURCH ROAD, BEJAI
VILLAGE, DAKSHINA KANNADA DISTRICT, MANGALORE., PIN - 575004
5 K.MOHANACHANDRAN NAMBIAR
AGED 67 YEARS
'NANDANAM', 1ST CROSS, ANANTH NAGAR, 2ND STAGE, MANIPAL
POST, UDUPPI DISTRICT., PIN - 576104
6 M.NARASIMHA SHENOY
AGED 57 YEARS
S/O M. BABANNA, NITHYANANDA JEWELLERY, ASHOK MAHAL,
KANHANGAD P.O. KASARAGOD DISTRICT., PIN - 671315
7 H.LAKSHMANAN (DEAD)
AGED 84 YEARS
ALAMIPALLY, KANHANAD P.O., HOSDURG TALUK, KASARAGOD
DISTRICT., PIN - 671315
8 L.GURUNADH KHODAY
AGED 47 YEARS
S/O LATE SRI HARI KHODAY, BREWERY HOUSE, 7TH MILE,
KANAKAPURA ROAD, BANGALORE., PIN - 560062
9 L.ANANDHA PADMANABHA KHODAY
AGED 62 YEARS
S/O LATE LAKSHMAN SHA KHODAY, BREWERY HOUSE, 7TH MILE,
KANAKAPURA ROAD, BANGALORE, PIN - 560062
10 L.SWAMI KHODAY
AGED 60 YEARS
S/O LATE LAKSHMAN SHA KHODAY, BANGALORE, PIN - 560062
11 L.RAMACHANDRA KHODAY (DEAD)
AGED 90 YEARS
S/O LATE LAKSHMAN SHA KHODAY, BREWERY HOUSE, 7TH MILE,
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KANAKAPURA ROAD, BANGALORE, PIN - 560062
12 K. DAMODHARAN
AGED 65 YEARS
S/O C. KUNHAMBHU, ANUGRAH, ANANDASRAM P.O. HOSDURG,
MAVUMGAL, KASARAGOD., PIN - 671531
13 T.PREMANAND
AGED 60 YEARS
S/O LATE RAVEENDRAN, ANAND BHAVAN, AZHIKODE P.O. KANNUR
DISTRICT., PIN - 670008
14 M. NAGARAJ
AGED 61 YEARS
S/O LATE MADAN MOHAN RAO, DEEPA GOLD, MAIN ROAD, KANHANGAD
P.O., BALLA VILLAGE, KASARAGOD DISTRICT., PIN - 671315
15 ADVOCATE E.SUKUMARAN
AGED 65 YEARS
MADANS ARCADE, HOSDURG, KANHANGAD P.O., KASARAGOD DISTRICT.,
PIN - 671315
16 K.V.GANESHAN
AGED 69 YEARS
S/O K.V. POKKAN, DEVAN ROAD, KANHANGAD, BALLA VILLAGE,
KASARAGOD DSITRICT., PIN - 671531
17 ADVOCATE K.K.BALARAM
AGED 70 YEARS
ADVOCATE, KANNUR P.O. KANNUR DISTRICT., PIN - 670101
18 S.V.JAYAWANT
AGED 82 YEARS
13/B, SHRI DATTATRAY NIWAS, R.B.S.K. BOLE ROAD, DADAR(WEST),
DADAR DISTRICT, MUMBAI, PIN - 400028
19 AVINASH KHADE
AGED 85 YEARS
PLOT NO.17-A, GANGA NIWAS, ROAD NO.1, SION EAST, SION EAST
VILLAGE, SION EAST DISTRICT, MUMBAI, PIN - 400022
20 ASHOK SINDHKAR
AGED 72 YEARS
C4/20, GURURAJ SOC NO.3, SATARA ROAD, SATARA TALUK, PUNE,
PIN - 411037
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21 KUMAR N.BANGERA
AGED 61 YEARS
S/O NARAYANA, SARVODHAYA CO-OP HOUSING SOCIETY, NEW AMRUTHA
NAGAR, KHERWADI ROAD, BANDRA EAST, BANDRA EAST DISTRICT,
MUMBAI, PIN - 400051
22 T.A.RAVIRAJ
S/O T.A. VASUDEVAN, SUNPRINCE, 11-2-82 B, MOODANIDAMBOOR,
DR. AMBEDKAR ROAD, SHIRIBEEDU, KADABETTU, UDUPI DISTRICT.,
PIN - 576101
23 T.A.KRISHNARAJ
AGED 72 YEARS
S/O T.A. VASUDEVAN, 9-145 C, RAJ MANSION, SANTHOSH NAGAR,
KARAMBALLI, UDUPI, KARNATAKA., PIN - 576102
24 CHAITANYA KASHINATH PATIL,
AGED 70 YEARS
S/O K.C. PATIL, B-6, SUYOG SOCIETY, PLOT NO.24-25, ROAD
NO.1, OPP: SION FORT, SION EAST DISTRICT, MUMBAI, PIN -
400022
25 P. DAMODARA PANIKER
AGED 71 YEARS
S/O AMBADI, AMRUTHAKALA HOUSE, KOVVAL STORE, KANHANGAD SOUTH
P.O., KASARAGOD DISTRICT., PIN - 671531
26 JAYAKUMAR
AGED 61 YEARS
ADAVA NIVAS, VARANTHOOR ROAD, ELAMAKKARA, ERNAKULAM
DISTRICT., PIN - 682026
27 GANESH PRASAD H.R.
AGED 45 YEARS
S/O RATNAKARA H.P., NEAR GHS HIGH SCHOOL, KANHANGAD SOUTH,
KASARAGOD DISTRICT., PIN - 671531
28 PRAKASH MANI
AGED 45 YEARS
S/O KRISHNAN M.K., KRISHNA NIVAS, CHEMMATTAMVAYAL, BELLA
POST, HOSDURG, KASARAGOD DISTRICT., PIN - 671315
29 VIVEKANAND S.
AGED 54 YEARS
DEVI KRIPA, NEAR DISTRICT HOSPITAL, THOYAMMAL, BALLA
VILLAGE, KANHANGAD, KASARAGOD DISTRICT., PIN - 671315
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30 PUNDALINK PAI H.
AGED 43 YEARS
S/O H. ANANTHA NARAYANA PAI, SARASHWATI KRIPA, NEAR LV
TEMPLE, HOSDURG, KANHANGAD, KASARAGOD DISTRICT., PIN -
671315
31 GANESH C.
S/O GOPALAN, SOUPARNIKA, NEAR PENSION BHAVAN, KARATTUVAYAL,
KANHANGAD, KASARAGOD DISTRICT., PIN - 671315
32 SANTHOSH P.M.
AGED 55 YEARS
S/O LATE KUNHAMBHU, KUSHAL NAGAR, HOSDURG VILLAGE,
KANHANGAD, KASARAGOD DISTRICT., PIN - 671315
33 GANESHAN B.
AGED 60 YEARS
ARAMANGANAM, S/O NARAYANAN M., NEELAMBARI, ARAMAGHANAM,
KALANAD POST, KASARAGOD., PIN - 671317
34 LAKSHMANAN K.V.
AGED 58 YEARS
S/O CHIRUKANDAN (LATE), ATHUL NIVAS, MELANKOTTY, BALLA,
KANHANGAD, KASARAGOD., PIN - 671315
35 M. BALRAJ
AGED 57 YEARS
S/O MADAN MOHAN RAO, RADHA NIVAS, ALAMIPALLY, KANHANGAD,
HOSDURG, KASARAGOD DISTRICT., PIN - 671315
36 RAVEESHA THANTHRI KUNTAR
AGED 64 YEARS
S/O SUBRAYA THANTHRI, KUNTAR HOUSE, KUNTAR P.O., ADHUR,
KASARAGOD., PIN - 671543
37 N. MADHU
AGED 50 YEARS
S/O NARAYANAN, VALAPPIL HOUSE, RAJAPURAM P.O., KALLAR
VILLAGE, KASARAGOD., PIN - 671532
38 K. SREEJITH
AGED 52 YEARS
S/O GOVIDHAN NAIR, PANNIKKOOR HOUSE, PULLUR P.O. KANHANGAD,
KASARAGOD., PIN - 671532
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39 BABU P.
AGED 50 YEARS
S/O P. SARASWATHI, GOVINDAPURI, PULLUR, HARIPURAM,
KASARAGOD., PIN - 671531
40 UNNIKRISHNAN V
AGED 44 YEARS
S/O V. KRISHNAN, APPATIVALPPIL HOUSE, NELLIKKAT, HOSDURG,
BALLA, KANHANGAD, KASARAGOD., PIN - 671315
41 VALSAN P.K.
S/O MADHAVI P.K. SREENIVAS, CHALAPARAMB, THILLENKERY
VILLAGE, KANNUR DISTRICT., PIN - 670702
42 GOVIDHAN V.
AGED 54 YEARS
S/O KUNHAMBU, VENGARA VEEDU, OTTAKKANAM, MADIKKAI VILLAGE,
VAZHAKODU, ACHIKKANAM P.O., AMBALATHARA, KASARAGOD, PIN -
671531
43 VIVEKANANDAN T
AGED 50 YEARS
S/O KUNHIKANNAN P., PULLUR POST, AMBALATHARA, KASARAGOD.,
PIN - 671531
44 BHASKARAN K.
AGED 55 YEARS
S/O LAKSHMI K., CHEMBILOTT HOUSE, ACHIKKANAM POST,
AMBALATHUKARA VILLAGE, KANHANGAD, KASARAGOD., PIN - 671531
45 T.V.SHIBIN
AGED 39 YEARS
S/O K.P. RAVI, THEKKEVEETIL HOUSE, NEAR OLAVARA GATE,
UDUMBUTHALA, SOUTH THRIKARIPUR POST, KASARAGOD., PIN -
671311
46 B. RAJENDRA SHENOY
AGED 50 YEARS
S/O LATE B.A. SHENOY, ATHIYAMBHUR, KANHANGAD P.O., BALLA
VILLAGE, HOSDURG, KASARAGOD., PIN - 671315
47 ANANDA GUPTA
AGED 50 YEARS
S/O LATE M.L. GUPTA, R.P. NIVAS, HATHISKAR MARG, PRABHADEVI,
MUMBAI, PIN - 400025
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48 P. BABU
AGED 52 YEARS
S/O KRISHNAN, DHARMAPURI, MOONAMAMILE, PULLUR POST, HOSDURG,
KASARAGOD DISTRICT., PIN - 671531
49 SADASHIVA SHETTY
AGED 50 YEARS
KULLOOR, KANYANA, CHARLA POST, UPPALA, KASARAGOD.,
PIN - 671323
50 AJAYKUMAR T
AGED 52 YEARS
S/O KUMARAN, THANATH VALAPPIL HOUSE, NELLIKKATTU, BALLA
POST, HOSDUR, KASARAGOD DISTRICT., PIN - 671531
51 S.P. SHAJI
AGED 49 YEARS
S/O SUBRAHMANYA PILLAI, KALLARAKKAL BUILDING, 2ND FLOOR,
NEAR CITY HOSPITAL, HOSDURG, KANHANGAD POST, KASARAGOD., PIN
- 671315
52 SEBASTIAN THOMAS
AGED 55 YEARS
PRINCIPAL, SWAMY NITHYANANDA POLYTECHNIC COLLEGE, KANHANAD
POST, KASARAGOD., PIN - 671315
53 THE DIRECTOR
DIRECTORATE OF TECHNICAL EDUCATION KERALA, PADMAVILASAM
ROAD, FORT P.O., PAZHAVANGADI, THIRUVANANTHAPURAM, PIN -
695023
54 THE SENIOR JOINT DIRECTOR
DIRECTORATE OF TECHNICAL EDUCATION KERALA, PADMAVILASAM
ROAD, FORT P.O., PAZHAVANGADI, THIRUVANANTHAPURAM, PIN -
695023
55 THE REGIONAL JOINT DIRECTOR
DIRECTORATE OF TECHNICAL EDUCATION KERALA, FLORICAN HILL
ROAD, MALAPARAMBA, KOZHIKODE, PIN - 673009
56 THE CHAIRMAN
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, NELSON MANDELA
MARG, VASANT KUNJ, NEW DELHI., PIN - 110070
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BY ADVS.
R1, R3, R5 AND R6 BY SRI.T.SETHUMADHAVAN (SR.)
R1, R3 AND R6 BY SHRI.K.SUJAI SATHIAN
SMT.PREETHI. P.V.
SMT.MARY LIYA SABU
SMT.AISWARYA S. ASHOKAN
SHRI.NEERAJ KRISHNA KUMAR
SHRI.ARAVIND K.
SHRI.G.SREEKUMAR (CHELUR)
SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION - AICTE
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD 11.07.2025,
THE COURT ON 18.07.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 18th July, 2024
1. This appeal is filed against the order dismissing O.P. No.7/2022,
filed seeking leave to institute the suit filed by the appellants
under Section 92 of the Code of Civil Procedure. The appellants
filed the Original Petition seeking leave, alleging
mismanagement of the 1st respondent Society on the allegation
that directions of the Court are necessary for the administration
of the 1st respondent Trust.
2. The appellants/petitioners were two among 169 ordinary
members of the 1st respondent Society. The 1st respondent
Society is registered under the Societies Registration Act, 1860,
in the year 1964 as per Registration No.38/1964. The
petitioners' claim is that they are ordinary members of the 1st
respondent Society as per Membership Nos. 141 and 202; that
they used to renew their membership but the 13th defendant
who is the Secretary of the 1st respondent sent a letter dated
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20.09.2022 to them returning the cheques for the renewal fee
and informing that O.S No.11/2015 before the Sub Court
Hosdurg was settled on 05.09.2019 and as per the settlement,
the membership to the society would be restricted only for life
members and there would be no ordinary members since 2019
and hence the application for renewal of membership cannot be
considered. The contention of the petitioners is that Swami
Nithyananda who had his Samadhi in the year 1961 was a great
asserting Yogi with large number of devotees and followers; that
there were substantial contributions to the fold of Swami and
that thus assets came into existence on which Swami had
ostensible ownership but the beneficial interest vested with
general public to be used for the general welfare of the public.
The public trust so created, after the samadhi of the said Swami
was required to be managed properly and hence the same was
registered as a charitable society under the name "Sree
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Nithyananda Vidya Kendra" dedicated to Swami's ideals; that
even if the trust is registered as a society, it by itself will not
change the character of the trust as that of a society.
3. It is revealed from the pleadings that the Society originally
started a Polytechnic with the name Swami Nithyananda
Polytechnic in the year 1966 and a Self-Financing Engineering
College under the name "Sadguru Swami Nithyananda Institute
of Technology in the year 2010 at Kanhangad and the
Engineering College is not functioning now. The management
of the educational institution owned by the Society, including
appointment of staff, fixing of salary, disciplinary power, etc., is
vested with the Society. The Director Board of the Society are
selected by the members of the General Body in the Annual
General Body meeting to be held as per Clause 10 of the
Byelaw of the Society at the Ashram Premises at Kanhangad.
The term of the Director Board is three years from the date of
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election. The Director Board is to have a minimum strength of 8
members and a maximum strength of 31 members as decided
by the General Body. The office bearers of the Society are
President, Vice President, Secretary, Joint Secretary and
Treasurer, who have to be elected from among the elected
members of the Director Board. Under clause 5 of the Byelaw,
the General Body shall be made up of two class of members
namely, life members who have to pay a onetime lifetime
membership fee of Rs.5,000/- and ordinary members who have
to pay one-time admission fee of Rs.1,000/- with annual renewal
membership fee of Rs.101/-. Clause 11 of the Bye-law provides
that any amendment of the Bye-law can be effected only by the
General body of the Society without altering the basic
characteristics and objects of the society. There were two
factions of members competing to procure management of the
Society. Several litigations were instituted before the Court on
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account of the management disputes. One among them was
O.S No.11/2015 before the Sub Court, Hosdurg, challenging the
General Body and for declaration that the Director Board
elected in May 2012 was entitled to hold over the office until a
new Board of Directors were elected by the General Body. The
subject matter of the said suit was settled through an out-of-
court settlement dated 19.04.2018. The said settlement was
recorded before the Court as per the decree dated 05.09.2019.
Pursuant to the compromise in O.S. No.11/2015, all other
litigations pending between the two factions were closed. One
among the terms of the compromise was that the membership
of the society would be restricted only to the life members and
there would be no ordinary members.
4. The petitioners claim that originally there were about 210
ordinary members in the society enrolled till the year 2012 and
later 500 members were admitted in 2015. As on the crucial date
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of 12.05.2015 referred to in the compromise, there were about
600 ordinary members in the society. There was no General
Body either before or after the said settlement to deprive the
membership of the said 600 members. The petitioners claim
that the said terms of the compromise, doing away with ordinary
membership without the concurrence of the General Body
appear to be incompetent, void and ultra vires of the Bye-law.
The substantial contention of the petitioners is against the
removal of the ordinary members from the General Body of the
society who have voting rights to elect the Director Board. The
appellants claim that the 1st respondent is a public charity as
defined under Section 92 of the CPC. Under the said
circumstances, considering the welfare and best interest of the
society and efficient administration of the educational
institutions owned by the society and larger public interest,
intervention of the court is required in an appropriate manner to
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ensure an efficient, smooth and transparent administration of
the society and its institutions in accordance with law and to
secure the objects of the society. A new director board office
bearers and governing body is to be elected after settlement of
a comprehensive scheme for resolving the controversy related
to admissibility to ordinary members in the general body of the
1st defendant and during the interregnum period the
management of the society and institutions are to be taken over
by a receiver to be appointed under the suit.
5. The prayers in the plaint include declaration that the petitioners
and 167 members shown in plaint C schedule are ordinary
members of the Society; Declaration that the defendants 2 to 8,
10, 21 to 24 are not the elected members of the Director Board
of the 1st respondent and trustees of the 1st respondent,
restraining them from managing or interfering the affairs of the
1st respondent and its institutions; Mandatory injunction
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directing the 1st respondent to constitute new Director Board
after due election as per the Bye-law; Appointment of an
Advocate Commissioner to supervise the Annual General Body
Meeting for election of the Office Bearers; Settlement of a
comprehensive scheme including for resolving the controversy
related to the admissibility of ordinary members in the General
Body of the 1st respondent and to prepare a correct and proper
list of the ordinary and life members of the 1st respondent
society.
6. The respondents 3 to 6 contested the Original Petition
contending, inter alia, that the 1st respondent Society is not a
public trust and hence would not fall under the purview of
Section 92 of the Code of Civil Procedure. The 1st respondent
was not established for the purpose of charity or charitable
work. The devotees of Swami Nithyananda formed a public
Trust by the name Swami Nithyananda Ashram for charitable
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activities and it is engaged in various charitable activities,
serving the needs of the public, especially those of the
devotees. The 1st respondent has not undertaken any public,
religious or charitable activities. It operates two educational
institutions in Kanhangad. The educational institutions are not
to be considered as public charitable institutions.
7. No oral evidence was adduced by the parties. Exts. A1 to A17
were marked on the side of the petitioners and Ext.B1 is marked
on the side of the contesting respondents.
8. The Trial Court dismissed the Original Petition holding that there
is no evidence before the Court to conclude prima facie that the
1st respondent is a trust within the meaning of Section 92 CPC.
9. I heard the learned counsel for the appellants, Sri. Vinod Bhatt
S and the learned Senior counsel for the respondents 1,3,5,6,
Sri. T. Sethumadhavan, instructed by Sri. K Sujai Sathian.
10. The learned counsel for the appellants contended that a public
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trust was created even before the incorporation of the society.
The said public trust was having assets procured out of the
contributions from the devotees and followers of Swami
Nithyananda. The 1st respondent society was formed after the
Samadhi of Swami to manage the said properties. The said
properties were procured for charitable and religious purposes.
The beneficial interest of the same was vested with the general
public to be used for the welfare of the general public. The
learned counsel invited my attention to the specific averments
in paragraph No. 6 of the Original Petition which refers to the
existence of such public trust before the creation of the 1st
respondent society. The learned counsel contended that when
a public trust is created and later a society was also created to
manage the said public trust, the nature and character of the
public trust will not be lost by the formation of the society and
the society continues as the trust which originated earlier. The
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learned Counsel cited the decision of this Court in
Shanmughan v. Vishnu Bharatheeyan and others
[MANU/KE/0442/2003] and Kesava Panicker v. Damodara
Panicker and Others [1975 KHC 125] to substantiate the point
that the trust for advancement of education would also come
within the meaning of charity. The learned counsel tried to
distinguish Abhaya v. J.A. Raheem [AIR 2005 Ker 233] relied
on by the Trial Court by contending that even though the said
decision lays down that formation of the society under the
Societies Registration Act for charitable or social purposes
cannot be considered as creating a trust for the application of
Section 92 of the Code of Civil Procedure, since a public trust is
preceded by the formation of the 1st respondent, the said
decision is not applicable in the case on hand. The learned
counsel stressed the necessity of the orders of the Court in the
matter of administration of the 1st respondent citing
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mismanagement of the affairs of the 1st respondent by the
limited numbers of life members illegally excluding large
numbers of ordinary members who have voting rights in the
General Body on the strength of a compromise decree which is
not binding on the ordinary members.
11. On the other hand, the learned Senior counsel for the contesting
respondents contended that the prime condition for entertaining
an application for leave under Section 92 of CPC is that there is
no mala fides on the part of the applicants and the application
is not for vindicating the individual rights of the petitioners. The
sequence of events will clearly reveal that the present Original
Petition is filed by the petitioners at the instance of the 13th
respondent. The 13th respondent was the secretary of the 1st
respondent Society only till 23.12.2021. Thereafter, the 6th
respondent was the secretary of the 1st respondent. The
petitioners wanted to see that the 13th respondent and its
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supporters are reinstated in the management of the 1st
respondent society. The petitioners are not having any interest
in the affairs of the 1st respondent society as they are not
members of the 1st respondent society as on the date of the
filing of the Original Petition. The Trial Court rightly found that
there is no public trust created in order to invoke Section 92
CPC. The learned Senior Counsel cited the decisions of the
Hon'ble Supreme Court in Bishwanath v. Thakur Radha
Ballabhli [AIR 1967 SC 1044] and Vidyodaya Trust v. Mohan
Prasad R. and Others [(2008) 4 SCC 115] and the decisions
of this Court in Mayer Simon v. Advocate General, Kerala and
Others [1975 KLT 78], Kesava Panicker v. Damodara
Panicker and Others [1975 KLT 797], Kerala High Court
Advocates' Association and Others v. Babbalan and
Another [2010 (2) KHC 1], Church of South India v. John
[2012 (2) KLT 606] and Valia Koonambaikulam Sree
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Bhadrakali Temple v. Rajendran [2018 (1) KLT 936] in support
of his contentions.
12. I had considered the rival contentions.
13. In the recent decision of this Court in Iruvaikonam Bhagavathi
Temple v. State of Kerala [2025 KHC 587], it was held that the
following points are to be satisfied by the Court before granting
an application for leave by the Court under Section 92 CPC.
1. Firstly, satisfaction regarding the existence of a Trust created for
public purposes of a charitable or religious nature.
2. Secondly, prima facie satisfaction of existence of real, substantive,
and existing right of the Applicants in the Trust.
3. Thirdly, the satisfaction that there is no lack of bona fides on the
part of the Applicants and it is not intended to vindicate individual
rights of the parties.
4. Fourthly, prima facie satisfaction of existence of either breach of
trust or of necessity of direction of the Court for the administration of
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the Trust.
5. Lastly, the reliefs prayed for in the suit shall be for the matters
covered under Clause (a) to (h) in S.92(1) CPC.
14. The first and foremost condition is the existence of a trust
created for public purposes of a charitable or religious nature.
The petitioners claim that there existed a public trust before the
formation of the 1st respondent Society and the public trust was
having assets acquired with the contributions offered in favour
of Swami Nithyananda. Even though the petitioners made such
a claim, there is no evidence before the Court to prove the said
contention. The contention of the counsel for the appellants is
that all the records relating to the properties of the 1st
respondent are in the hands of the contesting respondents. The
contesting respondents did not produce those records before
the court in support of their contention that all the assets were
acquired by the Society. On account of the refusal on the part of
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the contesting respondents to produce the relevant records, the
only probability which could be arrived at by the court is that
there were assets of the public trust even before the formation
of the 1st respondent and such assets necessitated the
formation of the society. I am unable to accept the said
contention. The petitioners were also active members of the
Society for a considerable length of time and hence it must be
within their knowledge also if any property was acquired even
before the formation of the 1st respondent society. When the
petitioner contends that a public trust with properties was
created even before the formation of the 1st respondent society,
it is the burden of the petitioners to prove such contention at
least on a prima facie basis for maintaining an application under
S.92 CPC. In Kesava Panicker (supra), this Court found that
an application under S.92 is maintainable with respect to a
society registered under the Societies Registration Act on the
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grounds that there is evidence to show that long before the
registration of the Society, funds were collected from the public
towards share money; that there has been a clear intention to
form a trust; that a trust fund was created and the fund was
utilised for the construction of school building and ancillary
purposes for establishing and maintaining the work of the
school. It is further held that 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
has been already constituted as trust property and impressed
with the trust and any addition to those properties must also
have the same character. In the case on hand, there is no
evidence to prove that a trust was existing before the formation
of the 1st respondent society. Since the petitioners failed to
discharge their burden, I am of the view that the application
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under S.92 of the CPC filed by the petitioners is not
maintainable, since no public trust is in existence with respect
to the properties of the 1st respondent Society.
15. Even though the learned Senior Counsel for the contesting
respondents contended that the petitioners were not have any
existing interest in the 1st respondent Society as on the date of
filing of the Original Petition, I am of the view that they had real,
substantive and existing rights in the 1st respondent as on the
date of filing of the Original Petition since they were ordinary
members of the 1st respondent society and admittedly all the
ordinary members were excluded from the 1st respondent
Society based on a compromise between the parties to O.S
No.11/2015 in which the ordinary members were not parties. It
is the specific contention of the petitioners that such removal of
ordinary members from the membership of the 1st respondent
Society is illegal. It is seen that the ordinary members were also
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having voting rights in the General Body to elect the Director
Board members and that the contention of the petitioners is that
the Bye-law can be amended only by a decision in a properly
constituted General Body. Prima facie, it appears that the
membership of the petitioners was lost on account of the acts of
the contesting respondents and hence I am of the view that they
had real, substantive and existing rights in the 1st respondent as
on the date of filing of the Original Petition. The validity of the
removal of ordinary members from the membership of the 1st
respondent Society is a matter to be agitated in a properly
instituted proceedings, as the present proceedings under S.92
CPC is found to be not maintainable against the 1st respondent
Society.
16. Even though the learned Senior Counsel for the contesting
respondents contended that the petitioners have filed this
Original Petition at the instance of the 13th respondent and his
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supporters with the mala fide intention to reinstate them in the
Director Board, I am of the view that the said contention is not
prima facie sustainable. The decision in Church of South India
(supra) is cited by the learned Senior Counsel for the contesting
respondents to substantiate the point that the petitioners should
show that they have real interest of their own in the
administration of the trust and not the interest of some others
and that there must be real, substantive and existing interest in
the particular trust. The decision in Kerala High Court
Advocates' Association (Supra) is cited by the learned Senior
Counsel for the contesting respondents to substantiate the point
that while granting leave under Section 92, the authority giving
sanction must consider various aspects before granting
sanction and one important consideration should be as regards
the good faith, status and position of those who come forward
to represent the community. The decision in Vidyodaya Trust
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(supra) was cited by the learned Senior counsel to contend that
a suit under S.92 is a suit of special nature which presupposes
existence of a public trust of a religious or charitable character,
and the petitioners have to make out breach of trust which is the
very foundation of the suit and even if all the ingredients in a suit
under S.92 are made out, if it is clear that the petitioners are not
suing to vindicate the right of the public but are seeking a
declaration of their individual or personal right or the individual
or personal rights of any other person or persons in whom they
are interested, then the suit would be outside the scope of S.92.
It is the dominant purpose of the suit that has to be taken into
consideration in the light of the allegation in the plaint and it is
the object and purpose of the suit and not the reliefs that should
decide whether it is one for vindicating the right of the public or
the individual rights of the petitioners or the third persons. The
court has to go beyond the relief and focus on the purpose for
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which the suit is filed. It is the object or purpose of filing the suit
and not essentially the relief which is of paramount importance.
In the case on hand, the petitioners had ordinary membership
in the 1st respondent Society and they had requested for
renewal of ordinary membership by tendering the renewal fee.
Their membership was not renewed relying on the compromise
in a suit in which the life members alone were parties. Whether
the removal of ordinary members from the membership of the
1st respondent is legal and sustainable is a matter to be decided
in a properly instituted proceeding. It could not be said that on
account of the non-renewal of the membership of the ordinary
members, including the petitioners, at the instance of the
respondents who represent the life members could not be taken
as a ground to hold that the petitioners do not have any interest
in the administration of the 1st respondent. The pleading and the
prayers sought for do not in any way indicate that the petitioners
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want to reinstate the 13th respondent and his supporters in the
Director Board. The pleadings and prayers would indicate that
their grievance is primarily against the removal of ordinary
members, including them, from the membership of the 1st
respondent society and thus they lost their right to elect the
Director Board members. They contended that since the
Director Board members are elected not in accordance with the
Bye-law of the 1st respondent Society, they are to be elected
after holding an annual general body meeting in accordance
with the Bye-law. Hence, there is no lack of bona fide on the part
of petitioners in the Original Petition and it is not intended to
vindicate their individual rights alone. The intention of the
petitioners as revealed from the pleadings and prayers is to
elect a proper Director Board after holding a General Body
including the ordinary members as per the Bye-law of the
Society. Merely because the 13th respondent is shown as the
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representative of the 1st respondent, it could not be assumed
that the petitioners filed the Original Petition at the instance of
the 13th respondent and his supporters. Since one of the prayers
in the plaint is for the settlement of a comprehensive scheme for
the management of the 1st respondent, I find that the prayer
would come within Section 92(1)(g) CPC.
17. In Mayer Simon (supra), the Full Bench of this Court has held
that the main purpose of S.92(1) is to give protection to the trust
of a charitable or religious nature from being subjected to
harassment by suits being filed against them and hence it is
necessary to ascertain whether the persons approaching the
Advocate General are persons really interested in trust and are
not those whose motives are impure. In the case on hand, the
facts would reveal that the petitioners are persons really
interested in the 1st respondent and their motives are not
impure. The decision in Valia Koonambaikulam Sree
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Bhadrakali Temple (supra) is cited by the learned Senior
Counsel for the contesting respondents to substantiate the point
that it is incumbent on the petitioners in a suit under S.92 to
clearly mention in the pleading their interest in the trust as
material in the fact. On going through the plaint, the petitioners
have specifically pleaded their interest in the trust as a material
fact by stating that they were ordinary members of the 1st
respondent and the membership of all the ordinary members
were removed illegally by the life members by a compromise
decree in which the ordinary members are not parties.
18. In decision of the Hon'ble Supreme Court in Bishwanath
(Supra), it is held that to invoke S.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
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claimed is one or other of the reliefs enumerated therein and
that if any of the 3 conditions is not satisfied, the suit falls outside
the scope of the said section. In the case on hand, the first
condition is not satisfied and hence the suit is outside the scope
of Section 92 CPC.
19. In view of my finding that the appellants/petitioners could not
prove the existence of a public trust before the formation of the
1st respondent society, I am of the view that the Original Petition
for leave to institute the suit with respect to the affairs of the 1st
respondent is not maintainable. The Trial Court rightly
dismissed the Original Petition. I do not find any ground or
reason to interfere with the impugned order.
20. The appeal is therefore dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Jma/shg
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PETITIONER ANNEXURES
Annexuere R1(b) A true copy of the application submitted before
the district registrar dated 30.12.2024
Annexuere R1(c) A true copy of the acknowledgment issued by the
District Registrar dated 31-12-2024
Annexure R1 (a) A true copy of the proceedings dated 22-06-2024
issued by the district registrar, Kasargod
RESPONDENT ANNEXURES
Annexure R1 (f) A true copy of the order passed by this Hon'ble
Court in WP(C) No 33185 of 2024 dated 25-09-2024
filed by the 13th respondent
Annexure R1 (g) A true copy of the judgment passed by this Hon'ble
Court in WP(C) 7907 of 2025 dated 27-02-2025
Annexure R1 (e) A true copy of the compromise decree dated 05-09-
2019 in O.S No 11 of 2015 on the file of the Sub
Court, Hosdurg along with the order in I.A No 213
of 2019 and terms of the compromise
Annexure R1 (d) A true copy of the order passed by the Subordinate
Judge, Hosdurg dated 23-12-2021 in IA No 02 of 2021
in OS No 31 of 2021
