Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. _______ OF 2009
(Arising out of Special Leave Petition (Civil) No.21661 of 2006)
Appaji Gowda … Appellant
Versus
Vokkaligara Sangha and others … Respondents
J U D G M E N T
S.B. SINHA, J.
Leave granted.
1. The effect of creation of a Trust by the Executor of a Testamentary
Disposition vis-à-vis the rights of the heirs and legal representatives of
the author of the Will is the question involved in this appeal.
2. It arises out of a judgment and order passed by the high Court of
Karnataka at Bangalore in Regular First Appeal No. 965 of 2004
dismissing the appeal preferred by the appellant from the judgment and
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order dated 26 March, 2004 passed by the Additional City Civil Judge,
Bangalore.
3. One Rangammja, was the owner of a huge chunk of land bearing
Survey Nos.8, 9, 10, 13, 14 and 15 of Village Sajjepalya and Survey
Nos.43 and 44 of Village Malagala measuring 96 acres and 35 guntas.
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On or about 15 March, 1962, she executed a registered Will appointing
her nephew Puttaswamy as the executor and administrator thereof. The
said Puttaswamy was also given the right to utilize the property for
perpetuating the memory of her husband Krishnappa. He was also given
the authority to appoint his successor.
The relevant recitals in the said Will are as under:-
“I am the widow of Late Shri Krishnappa, son
of kempanna, who died on 18.12.1907. Under a
Registered Partition Deed dated 18.11.1905,
several properties came to the share of my
deceased husband Krishnappa and he was in
possession and enjoyment of the properties that
fell to his share in the said partition deed as the
absolute owner thereof till his death. I have no
children, male or female, and after the death of
my husband on 18.12.1907, I became a limited
owner of all the properties that fell to my
husband’s share and which he left behind at the
time of his death. As a limited owner of these
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properties, I was in possession and enjoyment
of them till the year 1956. By reason of the
provisions of the Hindu Succession Act, 1956
(Central Act 30 of 1956), I became the full and
absolute owner of the properties that fell to the
share of my husband under the Partition Deed
dated 18.11.1905 and which he left behind him
on his death. Since 1956, I have been in
possession and enjoyment of those properties as
the full and absolute owner thereof. I am thus
entitled to make a Will in respect of the
properties I am owning and enjoying.
…… ……
(c) I hereby devise and bequeath that all the
landed property owned by me except the house
bequeathed in (a) supra, shall be sold by the
Executor appointed under this WILL. He shall
invest or deal with the sale amounts in a proper
manner and, if invested from the realizations of
either rent or interest of the said amounts, he
shall perpetuate the name and memory of my
deceased husband.”
4. The Will specified the lands which were required to be sold to
fulfill the object thereof.
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5. Rangamma expired on 27 February, 1966.
6. Puttaswamy pursuant to or in furtherance of the said Will, on or
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about 19 October, 1978 executed a Trust Deed in favour of Vokkaligara
Sangha, respondent No.1, wherein it was inter alia stipulated :-
“(2) The Donor has all along considered
himself and acted as TRUSTEE of these lands
and he is anxious to make use of these lands
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and the yield therefrom or the money that may
be derived in the event of these lands being
taken by competent authority for a public
purpose for the sole purpose for furthering the
objective of the former owner by utilizing the
schedule property in the cause of education and
spread of knowledge.
xxx xxx xxx
(4) The Donor has therefore offered to the
Sangha the schedule property in Trust and for
the fulfillment of the Donor’s in Trust and for
the fulfillment of the Donor’s cherished
objective of serving the cause of education and
spread of knowledge.
xxx xxx xxx
(6) Under these circumstances and with the
object of making adequate arrangements for the
proper preservation and management of the
schedule property and for its utilization for the
realization and fulfillment of the objective (b)
(7) of the Donor, the Donor has created this
trust and has executed this Deed of Trust.”
7. Puttaswamy in terms of the said Deed of Trust had put his son-in-
law as Member of Executive Committee along with himself and one
another. It was also provided that after his life time his son Respondent
No. 2 or his nominee shall be the member.
8. Indisputably a proceeding under the Karnataka Land Reforms Act,
1961 was initiated by the tenants. For the said purpose they filed Form
No.7 prescribed under Section 48A thereof.
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9. Before the Land Tribunal a contention was raised by Puttaswamy
that Sanga is also a necessary party. The said contention, however, was
rejected.
Occupancy rights were granted to Chikkanarasimhaiah and
Mariyapa for all Survey numbers except Survey No.15 (44 acres and 33
guntas).
10. Puttaswamy challenged the said order before the High Court
impleading the first respondent as a party by filing a writ petition.
However, upon constitution of the Land Reforms Appellate Authority,
the said writ petition was transferred to it. The provisions for an appeal,
however, later on having removed, the matter was transferred back to the
High Court. It was marked as W.P. No.19015 of 1992.
Puttaswamy in the meantime had died in 1982.
11. The High Court set aside the order of the Land Tribunal and
remanded the matter back to the Tribunal to consider the application of
Puttaswamy.
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12. Indisputably by an order dated 18 July, 1998, after the matter was
remitted back to it by the High Court, the tenancy rights were conferred
on tenants regarding 52 acres of land. Allegedly no tenancy right was
conferred in respect of Survey No.15.
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13. Our attention has been drawn to the fact that questioning the said
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order of the Tribunal a writ petition was filed on 8 October, 1998 by
respondent No.1 which was marked as Writ Petition No.30742 of 1998.
One of the grounds taken in the said writ petition reads under :-
“30. The Land Tribunal has come to a wrong
conclusion that the petitioner has no right to be the
owner of the property in question. In view of
Section 79(b) read with Section 63(7), the
education institutions can own the land. Also by
Amendment Act of 1997 the power is given to the
Government to exempt education institutions and
industrial concerns upto the extent of 200 acres.
Further the Land Tribunal has no power to take
any decision under Section 69(b) or 63(7) or any
other provisions of the Act to declare the document
as void document. This is how the Land Tribunal
has exceeded their jurisdiction by saying that the
Vokkaligara Sangha is not the owner of the
property in question. There is a competent
authority constituted under the Act to decide the
question, not the Land Tribunal. This is how the
illegality was committed by the Land Tribunal by
granting occupancy rights.”
The prayer made in the said writ petition reads thus :-
“To quash the impugned order of the Land
Tribunal, Bangalore North Taluk, Bangalore dated
18-7-1998 passed in LRF No.680 : 1538/74-75
Annexure-D, by the issue of a writ of certiorari or
any other appropriate writ, order or direction as the
case may be.”
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14. The said writ petition, alongwith other writ petitions, however, was
withdrawn unconditionally as would appear from the order sheet dated
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23 March, 2001 which reads :-
“ Learned Advocate for the petitioners in all
these writ petitions has filed a memo for
withdrawal to the effect that the petitioners may be
permitted to withdraw the above said writ petitions
in the interest of justice and equity. The memo
filed by the learned Advocate for the petitioner
dated 23.3.2001 is placed on record. All these writ
petitions are accordingly dismissed as withdrawn.”
15. Respondent Nos. 2 to 4, however, made a representation before the
Bangalore Development Authority that they were the real owners of the
property and applied for forming a layout in the scheduled property.
Permission was granted to form the layout and a Resolution being No.105
of 1999 was passed in that behalf.
16. Yet again a writ petition was filed by respondent No.1, which was
marked as W.P. No.28703 of 1999 challenging the Resolution of
Bangalore Development Authority. The same was also withdrawn.
17. It is, however, contended before us by Mr. K.K. Venugopal,
learned Senior Counsel appearing on behalf of the appellant, although no
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record has been produced in support thereof, that another writ petition has
been filed which is pending before the High Court.
18. Respondent No.1 filed a suit in the Court of City Civil Judge,
Bangalore City, which was marked as O.S. No. 5796 of 2001, for a
declaration that they are the owners in possession of the suit property in
terms of the Deed of Trust executed by Puttaswamy. The said plaint was
rejected in terms of Order VII Rule 11 of the Code of Civil Procedure
inter alia – on the ground of non-joinder of necessary parties;
concealment of facts with regard to the dismissal of the proceedings
before the Land Tribunal as also the High Court and orders passed
therein; that no probate was obtained; and that no material has been
placed on record that Survey No.15 was under self-occupation of Testator
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on 27 February, 1956 or on 19 October, 1978.
19. Respondent No.1 preferred an appeal thereagainst before the High
Court wherein a settlement was arrived at. By the said settlement
respondent No.1 restricted its claim to 6 acres and 20 guntas of land in
Survey No.15 and declared that it had no claim over 38 acres and 18
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guntas of land. The High Court by an order dated 14 December, 2001
allowed the said appeal and remitted the matter back to the trial court
stating :-
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“Having given my anxious consideration to that
submission made at the Bar, I am of the view that
the better course would be to set aside the
impugned Judgment and Order and remit the
matter back to the Trial Court reserving liberty for
the parties to seek disposal of the suit in terms of
the compromise filed before this Court. Counsel
for the parties had no objection even to that course
being followed. In the circumstances and with the
consent of learned for the parties, I allow this
appeal and set aside the judgment and Order
impugned and remit the matter back to the Trial
Court with the direction that it shall examine the
question of passing a decree in terms fo the
compromise arrived at between the parties in
accordance with law.. In case, the compromise
falls through or the Court does not for any reason
find it permissible to pas a decree in terms thereof,
the suit field by the appellants shall be proceeded
with on merits in accordance with law.”
20. Appellant herein and some other members of respondent No.1 filed
an application for impleadment contending that the said compromise had
been entered into without the consent of the General Body.
21. The said settlement was accepted by the trial court by its order
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dated 26 March, 2004 directing, however, that the requisite court fee
should be paid.
22. Appellant preferred an appeal thereagainst. The said appeal has
been dismissed by the High Court by reason of the impugned order dated
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7 July, 2006 holding:-
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“10. It is not the plea of the appellant that the
respondent No.1 had without the consent or
approval of the Managing Committee entered into
this compromise agreement. What terms of
compromise shall be stipulated in a suit is left to
the parties and I do not find that the respondent
No.1 was in any way misled or what the Managing
Committee had not consented to the terms. Merely
because one of the members of the association
does not agree with the administration or any
decision taken by the Managing Committee, he
does not get any right to challenge the compromise
entered into by such association. In that view of
the matter, I do not find that the appellant has any
locus standi to challenge the compromise entered
into by the respondent No.1 with the respondent
Nos.2 to 4.”
…… …..
13. For the above said reasons, the appeal is
dismissed with no order as to cots. The
respondents are directed to appear before the trial
Court on 26.7.2006, on which date, the trial Court
shall proceed to determine the appropriate Court
fee and fix up the time limit for payment of the
same.
23. It is, however, not denied or disputed that ultimately for non-
payment of court fee the plaint had been rejected in terms of an Order VII
Rule 11 (b) of the Code of Civil Procedure.
24. Mr. K.K. Venugopal, learned senior counsel, appearing on behalf
of the appellant contended :-
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i) That the High Court committed a serious error in passing the
impugned judgment in so far as it failed to take into
consideration that any person interested in a public trust may
prefer an appeal being a ‘person aggrieved’.
ii) The High Court and consequently the trial court committed a
serious error in so far as they failed to take into
consideration that a Trust is not entitled to enter into a
compromise, save and except, for the benefit of Trust itself
wherefor even Resolution of the Trustees is imperative.
25. Mr. A.K. Ganguli, learned senior counsel appearing for respondent
No.1 urged that this appeal has become infructuous. Learned counsel,
however, would support Mr. Venugopal in regard to his contention that
the first appeal preferred by the appellant was maintainable.
26. Mr. Harish Salve, learned senior counsel, on the other hand,
submitted that the appellant as also the first respondent are guilty of
suppression of facts as it has been categorically held by the Land
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Tribunal that the Deed of Trust dated 19 October, 1978 was illegal being
contrary to the provisions of the Karnataka Land Reforms Act.
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27. Appellant is a Member of the Executive Committee of respondent
No.1-Trust. Any action which, according to its members are illegal, can
be subject matter of challenge before an appropriate forum.
28. The question which had been raised by the appellant in his
Memorandum of Appeal is as to whether respondent No.1 could have
entered into a settlement with respondent Nos. 2 to 4 in respect of the
property of the Trust.
29. In a given case, an appeal would also be maintainable at the
instance of a Executive Member of the Trust.
This Court in A.A. Gopalakrishnan v. Cochin Devaswom Board,
[(2007) 7 SCC 482], has held :-
“11. Learned counsel for Respondents 3 and 4
submitted that the settlement in the suit (OS No.
399 of 1998) was validly arrived at between them
(the plaintiffs) and the Devaswom Board (the
defendant), that the Devaswom Board had
considered the proposal after taking legal advice
and had duly passed a resolution to settle the suit.
It is further submitted that a decree having been
made in terms of the compromise and such decree
having attained finality, it cannot be questioned,
interfered or set aside at the instance of a third
party in a writ proceeding. Order 23 Rule 3 CPC
deals with compromise of suits. Rule 3-A provides
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that no suit shall lie to set aside a decree on the
ground that the compromise on which the decree is
based was not lawful. We are of the considered
view that the bar contained in Rule 3-A will not
come in the way of the High Court examining the
validity of a compromise decree, when allegations
of fraud/collusion are made against a statutory
authority which entered into such compromise.
While it is true that decrees of civil courts which
have attained finality should not be interfered with
lightly, challenge to such compromise decrees by
an aggrieved devotee, who was not a party to the
suit, cannot be rejected, where fraud/collusion on
the part of officers of a statutory board is made
out. Further, when the High Court by order dated
9-9-1998 had directed the Board to take possession
of Sy. No. 1042/2 immediately from Respondents
3 and 4 in CDB No. 3 of 1996, in a complaint by
another devotee, it was improper for the Board to
enter into a settlement with Respondents 2 and 3,
giving up the right, title and interest in Sy. No.
1042/2, without the permission of the court which
passed such order. Viewed from any angle, the
compromise decree cannot be sustained and is
liable to be set aside.”
[Emphasis supplied]
Yet again in Swami Shankaranand (Dead) by LRs. v. Mahant Sri
Sadguru Sarnanad and others, [(2008) 14 SCC 642], this Court has held :-
“11. In a case of this nature judiciary exercises
the jurisdiction of parens patriae and, thus, when
an objection is filed for grant of sanction in terms
of Section 92(1)(f) of the Code, the same should
receive serious consideration. The High Court thus
may not be entirely correct in opining that the
appellant had no locus standi to maintain an
appeal. It is true that the appellant is said to be in-
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charge of a Math situated at Varanasi. However, it
is contended that he really stays at Mirzapur.
According to the respondents, he has nothing to do
with the Math in question. But, that is to say, no
person being a third party to the application, would
not be a 'person aggrieved', in a case of this nature
cannot be sustained, if the appellant establishes
that he is otherwise interested in the welfare of the
Trust.”
30. However, in our opinion, it is not necessary to go into the
aforementioned question as the suit filed by respondent No.1 has been
dismissed for non-payment of court fee. No decree has thus been drawn
up incorporating the terms of settlement entered into by and between
respondent No.1 on one hand and respondent Nos. 2 to 4 on the other.
31. There cannot, however, be any doubt whatsoever that in the event a
case is made out as regards mal-administration of the Trust or otherwise
appropriate remedies can be availed. An originating summons can be
taken out, if otherwise it is permissible in law before the Original Side of
the High Court.
32. We, however, must also place on record that we have also not
applied our mind as to whether the order of the Land Tribunal has
attained finality and whether the Land Tribunal had any jurisdiction to
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deal with the question of interpretation of the Original Will and/or the
execution of the subsequent Trust Deed creating respondent No.1
33. We would also place on record that it is also not necessary for us to
consider the effect of withdrawal of Writ Petition Nos.30742 of 1998 and
28703 of 1999 at this stage.
34. With the aforementioned observations this appeal is disposed of.
No costs.
…………………………..J.
[ S.B. SINHA ]
…………………………..J.
[ DEEPAK VERMA ]
New Delhi.
August 07, 2009
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