L. Narasimha Reddy, J.@mdashThe 1st respondent is the Society, registered under the A.P. (Telangana Area) Public Societies Registration Act, 1350 Fasli, (for short ''the Act''), in the year 1965, with the development and welfare of Viswakarma Community in the twin cities of Hyderabad and Secunderabad, as its objective. It filed O.S. No. 358 of 2000 against the appellants (defendants 1, 3, 4, 6 and 7) and respondents 2 and 3 herein, in the Court of IX Additional Chief Judge (Fast Track Court), City Civil Court, Hyderabad for the relief of declaration, to the effect that the trust deed dated 16-10-1996 brought into existence in relation to a Kalyana Mandapam is null and void. Consequential relief of injunction, in relation to property bearing No. 3-1-228 to 232, Somasundaram Street, Secunderabad, and Dharmakanthas, was also claimed.
2. It the plaint, it was pleaded that the 1st respondent has undertaken several activities to promote its aims and objectives and as part of that activity, an extent of 1064.77 sq. yards, being the suit schedule property was purchased in the year 1976. As a measure of decentralization of activities, a Building Committee is said to have been constituted under the Chairmanship of the 1st appellant. It was alleged that he did not account for the expenditure, or the amount collected by him. It was mentioned that the 4th appellant has misappropriated huge amounts, collected as donations.
3. The 1st respondent further alleged that the appellants herein, along with some others have brought into existence, a trust deed, registered on 16-10-1996, and on the strength of the same, claims were being made, detrimental to the administration and maintenance of Kalyana Mandapam and Dharmakantha, and interest of its members.
4. The 1st appellant alone filed written-statement, denying the allegations. He raised objection, as to the maintainability of the suit, on the ground that all the trustees are not made parties. It was also alleged that the trust was constituted with 11 members, out of whom, two died, and the suit was filed only against 7 members. The circumstances under which the trust was created were explained and the allegations as to misappropriation and mismanagement were denied. Exclusive right of the Trust was claimed, vis-a-vis the property in question.
5. The suit was decreed, initially on 08-11-2002. Thereupon the appellants filed C.C.CA. No. 276 of 2002. Through judgment dated 26-12-2003, this Court allowed the appeal on the ground that all the trustees were not made parties. The matter was remanded to the trial Court for examining the question as to maintainability of the suit, in the absence of some of the trustees.
6. After remand, the 1st respondent impleaded respondents 4 and 5 herein as defendants 8 and 9. The trial Court framed an additional issue, touching on the question of maintainability of the suit. Through judgment dated 27-11-2006, the trial Court decreed the suit. Hence, this regular appeal by defendants 1, 3, 4, 6, and 7.
7. Sri V.LG.K. Murthy, learned Counsel for the appellants submits that the trial Court was not at all justified in impleading respondents 4 and 5, as defendants 8 and 9, when the object of remanding the matter was to require it, to examine the question of maintainability of the suit, with reference to the plea that all the trustees were not made parties. He contends that even otherwise, the suit was barred, vis-a-vis the respondents (sic. defendants) 8 and 9, and such an infirmity must lead to dismissal of the suit.
8. On being asked by this Court, learned Counsel addressed arguments on merits also. He submits that the trust was brought into existence for definite and clear objective and that the 1st respondent has no control over, or connection with, the trust. He contends that the evidence on record does not substantiate the claim made by the 1st respondent.
9. Sri P. Giri Krishna, learned Counsel for the 1st respondent, on the other hand, submits that out of 11 trustees, two died, by the lime the suit came to be filed, and another two of them who were impleaded subsequently as defendants 8 and 9; have disowned their association with the trust. He contends that the fact that respondent No. 4 herein deposed as P.W.2 in the suit, disclosed that he supported the case of the 1st respondent. Learned Counsel further submits that the plea of limitation could have been raised only by respondents 5 and 6 (sic. 4 and 5), and that they have not raised it. It is also his case that the 1st appellant has grossly misused the confidence reposed in him, and he was instrumental in bringing the trust into existence with oblique motive. He contends that the property was admittedly purchased by the 1st respondent, and there was no basis or justification for the trust to claim exclusive rights over the property.
10. The 1st respondent claimed the twofold relief, viz. declaration as to the nature of trust, constituted under Ex.A-1, and perpetual injunction against the appellants herein. Initially, the trial Court framed the following issues:
(1) Whether the trust deed dated 16-10-1996 is null and void?
(2) Whether the trustees have got any control over the properties of the plaintiff-association and whether they are in possession of the plaintiff''s properties?
(3) Whether the plaintiff is entitled for decree as sought for peaceful possession and enjoyment of the day to day affairs of the plaintiff-association and its properties restraining the defendants not to interfere?
(4) Whether the Court has got jurisdiction to try the suit?
11. The 1st respondent adduced oral evidence of P.Ws.1 to 3 and filed Exs.A-1 to A-10. On behalf of the appellants D.Ws.1 and 2 were examined and Exs.B-1 to B-10 were marked. The suit was initially decreed through judgment dated 08-11-2002. C.C.CA. No. 276 of 2002 reads as under:
... In the plaint itself the names of the trustees were mentioned by the plaintiff, but all the trustees were not made parties to the suit. On the other hand, the trial Court did not even examine as to what would be effect on the suit in the absence of the trustees who were known to the plaintiff when he filed the suit. The maintainability of the suit in the absence of some of the trustees has not at all been considered by the learned trial Court. For these reasons, we allow the appeal, set aside the judgment and decree of the trial Court and remand the case back to the trial Court in order to enable the trial Court to decide the issue with regard to the maintainability of the suit in the absence of some of the trustees and defendants.
12. After remand, the 1st respondent impleaded respondents 4 and 5 herein. No further evidence was adduced. The arguments appear to have been advanced on the basis of the evidence which is already on record, and mainly on the questions of maintainability, and limitation. The trial Court took the view that the defect as to nonjoinder of the parties is rectified, with the addition of defendants 8 and 9.
13. It is true that the remand of the matter by this Court was for the exclusive purpose of deciding the question of maintainability of the suit, on the ground that some of the trustees were not added as defendants. The trial Court framed an issue, touching on the same. The contention advanced on behalf of the appellants that the trial Court ought not to have permitted the 1st respondent to implead respondents 4 and 5 herein, cannot be entertained at this stage. The reason is that, feeling aggrieved by the order of the trial Court, impleading of respondents 4 and 5 herein, as defendants 8 and 9 in the suit, the appellants filed C.R.P. No. 5893 of 2003. The revision was dismissed and objection, if any for addition of defendants 8 and 9 stood overruled. Therefore, the defect, that gave rise to the C.C.C.A.276 of 2002 being allowed, stood rectified.
14. The trial Court did delve into the merits of the matter, in its judgment, when it decreed the suit on 08-11-2002. That, however, was set aside. After remand, the trial Court confined its consideration only to the point on which the matter was remanded. It refused to deal with the merits of the matter. Though not directly, it adopted the findings on issue Nos. 1 to 5, recorded in the earlier judgment. Such a course is impermissible. The trial Court ought to have examined the matter on merits, independently. The findings recorded in a judgment, which was set aside by this Court, ceased to be in existence. Strictly speaking, the matter is to be remanded to the trial Court for fresh disposal on merits. This Court felt that, appeal being continuation of the suit, the evidence on record can be examined and findings on merits can be recorded, lest it becomes a third round before the trial Court. When the same was pointed out, learned Counsel have graciously addressed the arguments on merits.
15. Issues that are framed in the suit have already been extracted above. The additional issue, touching on the question of maintainability of the suit was answered by the trial Court in favour of the 1st respondent. In view of the reasons mentioned above, this Court is not inclined to take any different view, on that issue.
16. Before the other issues are answered, an objection raised on behalf of the appellants on the question of limitation needs to be taken into account. It is urged that the limitation prescribed under Article 58 of the Schedule to the Limitation Act applies and the suit against defendants 8 and 9 is clearly barred by limitation. Reliance is placed upon the judgment of the Supreme Court in Ramalingam Chettiar v. P.K. Pattabiraman AIR 2001 SC 1185 : 2001 (2) ALT 47.3(DNSC).
17. This Court is not inclined to accept the contention advanced by the appellants. The reason is that the only persons that could have raised objection in this regard, are defendants 8 and 9 i.e. respondents 4 and 5 herein. Both of them were represented by an Advocate, and they did not file any written statement of their own. It has already been mentioned that defendant No. 9 deposed as D.W.2 (sic. P.W.2). It is not in dispute that the suit against the appellants is within limitation. That being the case, they cannot plead a ground, which does not apply to them. The ratio in the judgment referred to above, does not support their contention.
18. The first issue is as to whether the trust deed dated 16-10-1996 is null and void. The objection to the document is not on the basis of any provision contained in law. The basis pleaded in the plaint is want of authority, on the part of those, who created the trust. The Trust was constituted with the specific purpose of administration of Kalyana Mandapam and Dharmakantha. The 1st respondent specifically pleaded that the land on which, Kalyana Mandapam was constructed, was purchased by it, way back in the year 1976, and subsequently a Mandapam was constructed by mobilizing funds. Reference is made to various resolutions of the Managing committee of the Society.
19. Exs.A-3 (a) and A-3(b) are the resolutions dated 29-06-2000 and 14-07-2000, respectively, of the Managing Committee. The signature of D.W.1, i.e. the 1st appellant herein on Ex.A-3(a) was marked as Ex.A-3(c). Ex.A-4 is the minutes book for the year 1995. Exs.A-4(b) and A-4(c) are the signatures of D.W.1 on different pages of Ex.A-4. To prove that the 1st appellant participated in the meeting of the Committee, the photograph and negative were filed as Exs.A-5 and A-5(a). The appellants on the other hand did not claim any independent existence of their own, apart from that of the 1st respondent. In the written statement itself, it was mentioned that the 1st appellant was elected/nominated as the Chairman of the Building Committee, and thereafter it is just pleaded that the trust was registered and that it started operating the property.
20. The very purport of a Trust'' is that the owner of property intends to use that for the benefit of others and provides for a mechanism to ensure the pursuit of that object. It is beneficial to read Section 3 of the Indian Trusts Act.
3. Interpretation-clause:- A "trust" is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.
"author of the trust": "trustee": "beneficiary": "trust-property" "beneficial Interest": Instrument of trust".- the person who reposes or declares the confidence is called the "author of the trust": the person who accepts the confidence is called the "trustee": the person for whose benefit the confidence is accepted is called the "beneficiary": the subject-matter of the trust is called "trust-property" or "trust-money": the "beneficial interest" or "interest" of the beneficiary is his right against the trustees as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the "Instrument of trust":
21. The whole edifice of ''trust'', rests upon confidence, which the owner of the property rests upon the trustee, who is supposed to act for the benefit of another, and not for himself. There would not have been any objection for any trust, to come into existence, in case the trustees themselves acquired any property and formed the trust for administration thereof. The appellants and other trustees were not at all the owners of the property, nor did they acquire the same. Therefore, the very act of creation of the trust becomes untenable. Once the appellants admitted that the property was purchased by the 1st respondent, and resolutions were passed by the Managing Committee of the 1st respondent, for the development of the property, a trust could have come into existence, only on the basis of a clear and unambiguous resolution of the competent agency of the 1st respondent. In the absence of the same. Ex.A-1 would manifest, if at all anything, the breach of trust, on the part of the 1st appellant and others, who were the members of the building committee.
22. The appellants are not able to point out, much less, establish, as to on what basis they started claiming exclusive rights over the property, to arrogate to themselves, the power, to manage and administer the same. The assertion made by them is, in fact, an antithesis of trust and trustees. Therefore, the trust deed, Ex.A-1 deserves to be declared as null and void, or at least, not binding upon the 1st respondent.
23. Issue No. 2 is about the right of the trustees over the properties of the plaintiff, and their claim as to possession over the said property. The answer to the first issue would have a direct bearing upon this. It has already been mentioned that the appellants did not claim any independent, or exclusive right over the property. If at all they had any control over the property, it was only as representatives of the 1st respondent, and as members of the building committee. As long as they did not assert any right, of their own, over the property, they cannot claim exclusive possession over it. Not a single document, which confers any right upon them over the property, has been placed before the trial Court. Exs.B-1 to B-10 are only self-serving documents, such as letters, that were addressed by various persons, and counterfoils, and receipt books. None of them have the effect of conferring right or title upon them. If at all they were administering the property, it is only for, and on behalf of the 1st respondent. No plea of adverse possession is raised. Therefore, the issue No. 2 is also answered in favour of the 1st respondent.
24. The last issue is about the entitlement of the 1st respondent for the relief of perpetual injunction. Once it is held that the trust deed is null and void, the appellants do not have any right over the schedule property, in themselves, it follows that they handled the property only as representatives of the 1st respondent. Therefore, the relief of injunction deserves to be granted in favour of the 1st respondent.
25. Sri Ramalingeswara Reddy Advocate, was appointed as Receiver to administer the suit schedule property. The Receiver shall be under obligation to the managing committee of the 1st respondent-society, as may be certified by the Registrar of Societies. His remuneration was fixed at Rs. 5,000/-(five thousand) per month. The record discloses that income of more than Rs. 20 lakhs was derived during his management. This Court is of the view that his remuneration deserves to be enhanced to Rs. 10,000/- (ten thousand) per month, from January, 2004, i.e. the period subsequent to the remand of the matter. There is no objection from the parties, for this proposal.
Hence,
(a) The appeal is dismissed and O.S. No. 358 of 2000 on the file of IX Additional Chief Judge, City Civil Court, Hyderabad, shall stand decreed, as prayed for.
(b) The Receiver shall be under obligation to hand over the suit schedule property, forthwith together with correct and proper accounts, to the Managing Committee of the 1st respondent-society, which is certified by the Registrar of Societies;
(c) The remuneration of the Receiver is enhanced to Rs. 10,000/- (ten thousand) per month, from January, 2004.
(d) Each party shall bear its own costs.
