JAGADISH RAO vs P YAJNESHWARA RAO

- 1 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 16 DAY OF SEPTEMBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO. 2450 OF 2018 (DEC/INJ)

BETWEEN:

1.
JAGADISH RAO
S/O SHANKARA NARAYANAPPAYYA,
AGED ABOUT 67 YEARS,
R/AT SOWRABHA V.S. KUDVA LANE,
OPP: KODIALBAIL POST OFFICE,
MANGALURU – 575 003.

2. P. SRIDHARA RAO
S/O SHANKARA NARAYANAPPAYYA,
AGED ABOUT 60 YEARS,
R/AT PATHUMUDY HOUSE,
MANCHI POST- 574 323.
BANTWAL TALUK.

3. P. GIRISHA RAO
S/O SHANKARA NARAYNAPPAYYA,
AGED ABOUT 54 YEARS,
R/AT PATHUMUDY HOUSE,
MANCHI POST – 574 32,
BANTWAL TALUK.

DELETED AS PER THE
ORDER DATED 24.06.2024.

4. P. SATHYA NARAYANA RAO
S/O SHANKARA NARAYANAPPAYYA,
AGED ABOUT 53 YEARS,
R/AT 166, 13TH MAIN,
V SECTOR, HSR LAYOUT,

Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka

- 2 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

BENGALURU – 560034.

5. P SHASHIDHARA RAO
S/O SHANAKARA NARNAPPAYYA,
AGED ABOUT 50 YEARS,
R/AT SHARADA NILAYA 44-73A,
ND
2 MAIN, 8TH CROSS,
LAND LINKS,
DEREBAIL KONCHADY,
MANGALURU – 575008.

6. SHARATH
S/O P. UMESH RAO
AGED ABOUT 32 YEARS,
R/AT PATHUMUY HOUSE,
MANCHI POST – 574323,
BANTWAL TALUK.

7.
ANUP SHANKAR RAO
S/O P JAGADISH RAO
AGED ABOUT 31 YEARS,
R/AT SOWRABHA V S KUDVA LANE,
OPP: KODIALBAIL POST OFFICE,
MANGALURU – 575003.

8. SHASHANKA
S/O P SHASHIDARA RAO
AGED ABOUT 27 YEARS,
R/AT SHARADA NILAYA,
44-73A, 2ND MAIN,
8TH CROSS, LAND LINKS,
DEREBAIL, KONCHADY,
MANGALURU – 575008.

…APPELLANTS

(BY SRI. CHANDRASHEKAR AND NAGESH .M, ADVOCATES
FOR A2 TO A8; SMT. SOHANI HOLLA, ADVOCATE FOR A1)

- 3 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

AND:

1.
P YAJNESHWARA RAO
S/O LATE RAMAKRISHNAYYA,
AGED ABOUT 57 YEARS,
R/O PATHUMUDU HOUSE,
MANCHI POST – 574 323.
BANTWAL TALUK.

2.
RAMAKRISHNA
S/O SHANKARA NARNAPPAYYA,
AGED ABOUT 57 YEARS,
R/O PATHUMUDY HOUSE,
MANCHI POST – 574 323
BANTWAL TALUK.

3. JAYA SHANKAR
S/O DR RAMA KRISHNAYYA PATHUMUDI
AGED ABOUT 45 YEARS
R/O 104/40,
QUEENS BUILDING APTS.,
7F FOREST HILLS,
NE WYARK – 11375, 7318 USA.

4.
SURESH
S/O DR RAMA KRISHNAYYA PATHUMUDI
AGED ABOUT 39 YEARS
R/O. 104/40, QUEENS BUILDING APTS.,
7F FOREST HILLS,
NEW YARK - 11375 7318 USA.

5. RAMESH RAO PATHUMUDU
S/O LATE VENKAT RAO
AGED ABOUT 62 YEARS,
R/O 3-144/1, CHITRA NIVAS,
CIKANSAL ROAD,
KUNDAPURA – 576201.

- 4 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

6. ASHOK RAO PATHUMUDI
S/O LATE VENKAT RAO
AGED ABOUT 56 YEARS
R/O 3-144/1, CHITRA NIVAS,
CIKANSAL ROAD,
KUNDAPURA – 576201.

7.
ROHAN SHANKAR
S/O P SATHYA NARAYANA RAO,
MINOR, AGED ABOUT 15 YEARS
R/O NO 166, 13TH MAIN,
VTH SECTION HSR LAYOUT,
BENGALURU – 560034.

8. VINEETHA
S/O ASHOK RAO PATHUMUDY
AGED ABOUT 24 YEARS
R/O 31/144,
CIKANSAL RAOD,
KUNDAPURA – 576201.

9. P. JAYAPRAKASHA DEVA
S/O RAMAKRISHNA RAO
AGED ABOUT 69 YEARS
R/O KARNATAKA BANK
BHAGAVATHI NAGAR ROAD,
BALLAL BAGH,
NEAR PATHUMUDY SOUDHA,
MANGALURU – 575003.

10.
BALARAMA
S/O P JAYAPRAKASHA DEVA
AGED ABOUT 67 YEARS,
R/O KARNATAKA BANK
BHAVATHI NAGAR ROAD,
BALLAL BAGH,
NEAR PATHUMUDY SOUDHA
MANGALURU – 575003.

- 5 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

11. VENKATESHA PRATHAPA
S/O RAMAKRISHNA RAO,
AGED ABOUT 64 YEARS,
R/O PATHUMUDY HOUSE,
MANCHY POST, - 575323
BANTWAL TALUK.

12.
RAM GOPAL
S/O VENKATESHA PRATHAPA
MINOR AGED ABOUT 14 YEARS
R/O PATHUMUDY HOUSE
MANCHI POST – 574323.
BANTWAL TALUK

13.
P RAMA KRISHNA DEVANANDA
S/O P YAJNESHWARA RAO
AGED ABOUT 29 YEARS,
R/O PADMA SITHA,
AJJIBETTU
JODUMARGA POST – 574219.
BANTWAL TALUK.

14. P CHIDANANDA RAO
S/O RAMAKRISHNA RAO
AGED ABOUT 54 YEARS

15. RAMAKRISHNA
S/O P CHIDANANDA RAO
AGED ABOUT 24 YEARS

16. VISHNU KANTHA
S/O P CHIDANANDA RAO MINOR
AGED ABOUT 14 YEARS

APPELLANTS 14 TO 16 ARE
R/O ADVOCATE AND NOTARY
KAINTAJE COMPOUND,
MARNAMAIKATTE,
NEAR JEPPU POST OFFICE,
MANGALURU – 575 002.

- 6 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

17. P PRABHAKAR RAO
S/O GOPAL RAO
AGED ABOUT 65 YEARS
R/AT NO.176,
MAITHRI APARTMENT,
KAMALANAGAR MAIN ROAD,
BASAVESHWARANAGAR,
BENGALURU – 560 079.

18.
KARTHIK
S/O P PRABHAKAR RAO
AGED ABOUT 33 YEARS
R/AT NO.176,
MAITHRI APARTMENT,
KAMALANAGAR, MAIN ROAD,
BASAVESHWARANAGAR,
BENGALURU – 560079.

19. P SRINIVAS RAO
S/O LATE P GOPAL RAO
AGED ABOUT 58 YEARS

20. P NAGESH RAO
S/O LATE P GOPAL RAO
AGED ABOUT 50 YEARS

21. P RAMESH RAO
S/O LATE P GOPAL RAO
AGED ABOUT 49 YEARS

22. P DINESH RAO
S/O LATE P GOPAL RAO
AGED ABOUT 40 YEARS

APPELLANTS 19 – 22 ARE
R/O PATHUMUDY HOUSE,
MANCHI POST- 574323
BANTWAL TALUK.

- 7 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

23. RAJENDRA PRASAD
S/O LATE PADMANABHA RAO
PATHUMUDY HOUSE,
AGED ABOUT 45 YEARS,

24. PADMANABHA
S/O P RAJENDRA
AGED ABOUT 15 YEARS,

APPELLANTS 23 & 24 ARE
R/O SAVITHRI NILAYA,
MONTIMAR PADAVU,
IRA VILLAGE & POST - 574323
BANTWAL TALUK.

25. P VENKAT RAO
S/O P ANANTHARAMAPAYYA
AGED ABOUT 72 YEARS

26.
PRADEEPA RAO
S/O P VENKAT RAO
AGED ABOUT 44 YEARS

27. PRAVEENA
S/O P VENKAT RAO PATHUMUDY
AGED ABOUT 43 YEARS

APPELLANTS 25 TO 27 ARE
R/O PLOT NO 101,
A BLOCK,
VISHAL KUTIR 143/23
KATHRIGUPPA MAIN ROAD,
BENGALURU – 560085.

28. P UDAYA
S/O LATE P RADHAKRISHNA RAO
AGED ABOUT 40 YEARS
D39 IS THE LR OF DECEASED D38

- 8 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

29.
P CHANDRA MOHANA RAO
S/O LATE ANANTHA RAMAPPAYYA
AGED ABOUT 68 YEARS

30. PAVAN
S/O P CHANDRA MOHANA RAO
AGED ABOUT 34 YEARS

31. RATHAN
S/O P CHANDRA MOHANA RAO
AGED ABOUT 30 YEARS

32. P GANESH RAO
S/O ANANTHA RAMAPPAYYA
AGED ABOUT 61 YEARS

33. ANIL
S/O P GANESH RAO
AGED ABOUT 28 YEARS

34. SUNIL
S/O P GANESH RAO
AGED ABOUT 21 YEARS

35. P SURESH RAO
S/O ANANTHA RAMAPPAYYA
AGED ABOUT 60 YEARS.

36. PRASHANTHA
S/O P SURESH RAO
MINOR,
AGED ABOUT 16 YEARS

37. P SATHEESHA RAO
S/O ANANTHA RAMAPPAYYA
AGED ABOUT 53 YEARS

- 9 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

38. SANDEEPA
MINOR
S/O P SATHISHA RAO
AGED ABOUT 16 YEARS

APPELLANTS 28 – 38 ARE
R/O PATHUMUDY HOUSE,
MANCHI POST - 574323
BANTWAL TALUK.

39.
MAHESHA S RAO
S/O P SHASHIKANTHA RAO
AGED ABOUT 46 YEARS
R/AT L-1/F304
POWAL PARK,
HIRANANDANI GARDENS,
HIGH STREET POWAL
MUMBAI -400076.

40. P MADUSOODAN RAO
S/O P NARAYANA RAO
AGED ABOUT 73 YEARS
R/AT NO.909, 62ND CROSS,
50A MAIN, 1ST STAGE,
KUMARAWAMY LAYOUT
BENGALURU – 560078

41. PRASANNA RAO
S/O P MADUSOODAN RAO
AGED ABOUT 38 YEARS
R/AT NO 909, 62ND CROSS,
50 A MAIN, 1ST STAGE,
KUMARASWAMY LAYOUT,
BENGALURU – 560078

42. MANA MOHAN N.PATHUMUDY
S/O LATE P.NARAYANA RAO,
AGED ABOUT 68 YEARS

- 10 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

43. ASHWIN KUMAR
S/O MANA MOHAN N.PATHUMUDY,
AGED ABOUT 34 YEARS

44. ANOOP KUMAR
S/O MANA MOHAN N.PATHUMUDY,
AGED ABOUT 32 YEARS

APPELLANTS 42 TO 44 ARE
R/AT FLAT NO.403,
KAPOOR HEIGHTS,
ABOVE CORPORATION BANK,
SOMAVARAPETE MALI MAHARAJ ROAD,
PUNE-411001

45.
P.CHANDRA KANTHA N RAO
S/O LATE P.NARAYANA RAO,
AGED ABOUT 67 YEARS
R/AT C-15,
GODREJ HILLSIDE QUTRS.
SECOND FLOOR, LBS MARG,
VIKHROLI (W), MUMBAI-400 079

46. PRADEEP RAO
S/O P.CHANDRA KANTHA N RAO
AGED ABOUT 36 YEARS
R/AT C-15,
GODREJ HILLSIDE QUTRS,
SECOND FLOOR, LBS MARG,
VIKHROLI (W)
MUMBAI-400 079

47. RAMAKANTHA N PATHUMUDI
S/O LATE P.NARAYANA RAO,
AGED ABOUT 52 YEARS

48. VIVEK
MINOR
S/O RAMAKANTHA N.PATHUMUDI,
AGED ABOUT 17 YEARS

- 11 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

49. SHASHANK
MINOR
S/O RAMAKANTHA N.PATHUMUDI,
AGED ABOUT 16 YEARS

APPELLANTS NO.47 TO 49 ARE
R/O A-21, MAURIA GARDEN,
KOTHRUD,
NEXT TO SHANTHIVAN
HSG SOCIETY,
PUNE-411029.

50. P. SOORYA NARAYANA RAO
S/O LATE NARSAPPAYYA,
AGED ABOUT 66 YEARS
R/AT PROPRIETOR PATHUMUDI SOUDHA,
BHAGAVATHI NAGAR ROAD,
BALLALBAGH,
MANGALURU-575 003.

51.
P.RAGHURAM RAO
S/O LATE NARSAPPAYYA,
AGED ABOUT 60 YEARS

52. AMITH RAJ
S/O P.RAGHURAM RAO,
AGED ABOUT 26 YEARS

53.
AMRITH RAJ
S/O P.RAGHURAM RAO,
AGED ABOUT 24 YEARS

APPELLANTS 51 TO 53 ARE
R/AT HARSHA REFRESHMENTS,
HOTEL SHARON,
KUNDAPUR-576201

- 12 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

54. P. SHRIKANTHA RAO
S/O LATE P.SHIVASHANKAR RAO
AGED ABOUT 34 YEARS,
R/AT PATHUMUDY HOUSE,
POST MANCHI-574323
BANTWAL TALUK.

55.
ANANTHAYYA V RAO
S/O LATE P.VASUDEVA RAO,
AGED ABOUT 73 YEARS
R/AT 51/52/2 PALM MEADOWN,
AIRPORT WHITEFIELD ROAD,
BENGALURU-560 086

56. YAJNESH RAO
S/O ANANTHAYYA RAO,
AGED ABOUT 42 YEARS
R/AT 51/52/2 PALM MEADOWS,
AIRPORT WHITEFIELD ROAD,
BENGALURU-560 086.

…RESPONDENTS

(BY SRI. G. BALAKRISHNA SHASTRI, ADVOCATE FOR C/R1 IN
CP.1038/2018; SRI. PUNDIKAI ISHWAR BHAT,
ADVOCATE FOR R14; NOTICE NOT ORDERED TO
OTHER RESPONDENTS)

THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 15.12.2017 PASSED IN
RA.NO.12/2014 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE
AND JMFC, BANTWAL, D.K., DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 28.06.2014
PASSED IN OS.NO.296/1994 ON THE FILE OF THE PRL.CIVIL
JUDGE AND JMFC, BANTWAL, D.K.

- 13 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT

This appeal is filed by the defendants No.6 to 13 in
OS No.296/1994 against the interim judgment and decree
dated 28.06.2014 passed by the Principal Civil Judge and
JMFC-Bantwal-Dakshina Kannada, (for short ‘Trial Court’)
whereby the said suit filed by the respondent No.1/plaintiff
against the appellants and remaining
respondents/defendants for declaration and other reliefs,
in relation to the subject deity/suit schedule properties,
was partly decreed by the trial Court and confirmed by the
first appellate court in RA No.12/2014, which was
dismissed by the first appellate court, which also
proceeded to dismiss the cross-objections filed plaintiff.
2. Heard learned counsel for the appellant and
learned counsel for the respondent No.1 and learned
counsel for the respondent No.14 for admission and

- 14 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

perused the material on record. The TCRs were called for
by this court and the same having been received and
perused for the purpose of the present order.
3. On perusal of the material on record it would
indicate that the respondent No.1 was plaintiff No.2 in OS
No.296/1994 which was instituted by him, seeking the
following reliefs.
" (1) For removing the 1st defendant
from the post of trustee.
(2) For a Declaration that the line of
succession provided in the suit
O.S.No.141/1953 on the file of Sub-Ordinate
Judge of South Kanara, Mangalore with
respect to the devolution of trusteeship of the
endowed property has become a failure, which
results in the mismanagement of the endowed
property.
(3) For framing of scheme by this court
for the proper management of the schedule
properties(Trust properties) providing for a
regular turn management for each of 4 main
branches or of alternatively forming
committee consisting of members(5 members
each from 4 main branches) the entire family
for the management and performance of
Devatha viniyogas, with proper provision for
the maintenance of accounts and direction

- 15 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

that surplus income should be accounted for
and invested in improving the endowed
properties,
(4) Alternatively for appointing the
senior most member or any member of the
family except the 2nd defendant herein as the
trustee of the endowed property, for the
management and performance of devatha
viniyogas, with proper provision for
maintenance of accounts and direction that
surplus income should be properly accounted
for and invested in improving the endowed
properties.
(5) For the ancillary relief of directing
the 2nd defendant to render an account in
respect of the Trust properties from the date
of death shankaranarayanappayya, the former
trustee. of
(6) For a consequential mandatory
injunction directing the 2nd defendant hand
to
over the trust properties to the trustee
appointed by the court.”

4. According to the plaintiffs, the terms and
conditions of the final decree in OS No.141/1953 at Ex.P2
were not complied with, by the contesting defendants,
who were guilty of misappropriation and illegal alienation,
who did not give effect to the line of succession provided

- 16 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

in the said final decree and consequently sought for
framing of a suit for effective management and
administration of the family deity/temple and the suit
schedule properties. The defendant Nos.2 and 3 filed
separate written statement and contested the suit, while
the remaining defendants did not choose to file written
statement, nor did they contest the suit. The plaintiff No.2
examined himself as PW1 and documentary evidence at
Exs.P1 to P54 were marked, while the defendants Nos.2
and 3 did not examine either themselves or any other
witness and only one document at Ex.D1, which was a
memo filed by the plaintiff No.1 was marked as Ex.D1 in
support of their claim. The trial court framed the following
issues;
" On the basis of pleadings of the
parties, my predecessor in office has framed
following issues:
nd
1. Whether the 2 plaintiff proves that
the deity by name Sri. Venkatramana
Devaru is the family deity of family of

- 17 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

plaintiffs and defendants situated at
Pathumudy of Manchi village?
2. Whether the plaintiff further proves
that by virtue of the compromise entered in
O.S.141/1953 on the file of Subordinate
Judge, D.K. Mangalore, the senior most
member of the family of the senior most
branch is the trustee and the said trustee
has to perform the devatha viniyogas and
ceremonies of the family deity?
nd
3. Whether the 2 plaintiff further
proves that after the death of first trustee
nd
Sri.Shankaranarayappayya, his 2 son the
nd
2 defendants had taken possession of the
properties and acting as a trustee of Sri.
Venkataramana Devaru without any legal
sanction?
4. Whether the 2nd plaintiff further
nd
proves that the 2 defendant being a
trustee, started to mismanage the trust
properties as shown in the plaint schedule
including the moveable properties belongs to
nd
the deity and the 2 defendant has not
invited the plaintiffs and other family
members to be present at the time
Navarathris and poojas?
nd
5. Whether the 2 plaintiff proves that
after the death of first trustee, the trust
properties are in possession of 2nd
defendant who is not the senior most

- 18 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

member of the senior most branch of the
nd
family and the 2 defendant without any
legal sanction, which results in gross mis-
management of the trust properties as
averred in the plaint?
nd
6. Whether the 2 defendant proves
that the suit is bad for non joinder of
necessary parties and also mis joinder of
parties?
nd
7. Whether the 2 defendant proves
that this court has no jurisdiction to
entertain the suit?
nd
8. Whether the 2 plaintiff is entitled
for declaration and also alternative relief as
sought?
nd
9. Whether the 2 plaintiff is entitled
for rendering accounts by the defendant
No.2 in respect of the trust properties from
the date of Shankaranarayanappaya the
former trustee?
10. Whether the 2nd plaintiff is entitled
for mandatory injunction as prayed in the
suit?
11. What Order or Decree?
Additional Issues:
1. Whether defendant No.2 prove that
suit is barred under law of limitation?

- 19 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

2. Whether plaintiff No.2 is entitled for
the relief claimed in the plaint?”

5. The trial Court answered issues No.1 to 5 in the
affirmative by coming to the conclusion that the plaintiff
had proved that the deity by the name Venkatramana
Devaru was family deity of the plaintiffs and defendants
situated at Pathumudi of Manchi Village and also answered
issue No.2 in favour of the plaintiffs, by holding that by
virtue of a compromise entered into OS No.141/1953, on
the side of the subordinate judge Dakshina Kannada
Mangalore, the senior most member of the family of the
senior most branch, is the trustee and the said trustee had
to perform the devata viniyogas ceremonies etc., of the
family deity. So also, the trial Court answered issue Nos.3
to 5 in favour of the plaintiffs by holding that the plaintiff
No.2 had proved that upon the demise of the first trustee
Shankar Narayanappaya, his second son i.e. the defendant
No.2 had taken possession of the property and was acting
as a trustee of Venkatramana Devaru, without any legal

- 20 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

sanction which was contrary to the terms and conditions of
the compromise decree passed in OS No.141/1953. The
trial court also took into account the pleadings and
evidence of the parties, including the unimpeached,
uncontroverted and unchallenged evidence adduced by the
plaintiffs, coupled with the defendants No.2 and 3, not
stepping into the witness box, thereby entailing drawing of
adverse inference against them and came to the
conclusion that the defendant No.2 started to mismanage
the said movable properties belonging to the deity and the
defendant No.2 had not invited the plaintiffs and other
family members to be present at the time of Navaratris
and poojas. Similarly, the trial court came to the
conclusion that the second plaintiff had proved that after
the demise of the first trustee, the trust properties were in
possession of the defendant No.2 who was not the senior
most member of the senior most branch of the family and
that without any legal sanction, the defendant No.2 was

- 21 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

indulging in gross mismanagement of the trust properties
as borne out from the material on record.
6. So also, the trial court answered additional issue
No.1 regarding limitation as against the defendant and
additional issue No.2 in the affirmative and partly decreed
the suit by holding as under;
“7. Upon appreciation of the evidence
placed by the parties and having regard to the
arguments submitted by the both the sides, my
findings on the above issue are as follows:-
Issue No. 1:- In the Affirmative
Issue No. 2:- In the Affirmative
Issue No. 3:- In the Affirmative
Issue No. 4:- In the Affirmative
Issue No. 5:- In the Affirmative
Issue No. 6:- Partly in the
Affirmative
Issue No. 7:- In the Negative.
Issue No. 8:- Partly in the
Affirmative
Issue No. 9:- In the Affirmative
Issue No.10:- In the Affirmative
Addl. Issue No.1:- In the Negative.
Addl.IssueNo.2:- Partly in the

- 22 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Affirmative.
Issue No.11:- As per final order
for the following:-

“REASONS
8. ISSUE Nos. 1 to 3: These three issues
are related to each other. Hence in order to
avoid the repetition of facts, propose to take up
these issues together for discussion.”
9. It is the contention of the plaintiff
No.2 that the plaintiffs and defendants are the
members of “Pathumudi Family ”, which is
having immovable properties at Manchiand Ira
Villages. The forefathers of the plaintiffs and
defendants had installed the deity namely
Sri.Venkataramana Devaru in the main family
house situated at Pathumudy of Manchi village
and they were also performing daily poojas and
many viniyogas to the deity regularly. Further it
is contended that by virtue of compromise
entered between the family members and final
decree passed in O.S. No. 141/1953 on the file
of Subordinate Judge of South Canara,
Mangalore the senior most member of the
senior most branch of the family has perform
devatha viniyogas and ceremonies of the family
deity. For the purpose of devatha viniyogas and

- 23 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

ceremonies, certain immovable and movable
properties were endowed and private trust was
formed. According to the plaintiff, plaint A
schedule property was endowed for performing
the devatha viniyogas. According to the plaintiff,
after the death of first Trustee Shankara
Narayanappayya, the senior most member of
the senior most branch of the family was
H.Venkata Rao the first defendant. However
st nd
after the death of 1 Trustee, the 2 defendant
has taken possession of the properties and
acting as a trustee of Sri Venkataramana
Devaru without any legal sanction. These
averments of the plaint are not admitted by the
contesting defendants in clear terms.
10. The plaintiff No.2 who has been
examined as P.W.1 has reiterated the above
aspects in the affidavit filed in lieu of chief-
examination. A close scrutiny of cross-
examination of P.W.1, reveals that none of the
defendants have seriously denied the aspect
that Sri Venkataramana Devaru is the family
deity and fact of compromise entered in O.S.
No. 141/1953 on the file of Subordinate Judge
of South Canara.

- 24 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

11. In this background, I have
gone through the documents produced by
The
the plaintiffs. relevant documents
which help the court to decide these
issues are Ex.P1, Ex.P2, Ex.P24, Ex.P25
and Ex.P26.
12. Ex.P1 is the certified copy of
the Deed of Partition dated 2.1.1942
entered between the family of plaintiffs
and defendants. The relevant averments
are found in Page 6 of Ex.P1, which
reveals as follows :

“
ೇವಾ ೕಹದ ಬ ೆ ಈ ದೇ

ಪ ೇಸಲಟ ಮ ೆ ೕ ೆಂಕಟಮಣ ೇವರ ಆ$%ಯನು) *ಾ

ಅದರ ಆಡ-ತ ಕು/ ಾದ ವ ವ0ೆ1ಯನು) ಈ 2ಾಲು ಪ3 ಯ45

.
6ಾಡ4ಲ5 ಸ7 ೇವರ ಆ$% ಆಡ-ತ ೕಗ ನ9ಸುವ

ಕ ಮವನು) ಅಗತ : ಾ;ಗ ಇದರ ವ ವ0ೆ1ಯನು) ಈ 2ಾಲು

ಪ3 ಯ45 =ಾಣುವ ಕುಟುಂಬದ ಎ ಾ5 ?ಂಬರರೂ ಸAಾ

Bೇ/6ಾ9=ೊಳD45=ೆE ಾವF ಹಕುE ಾರGಾHರುೆ%ೕೆ . ಸ7

ೇವಾಂಶದ ಆ$% ಆಡJೆ%ಯ ೕ ಾ7ಗಳನು) ನLಳ ೆ

Mೕ6ಾN $=ೊಳODವವGೇ ೆ ಪಕೃತ ವಷN=ೊEಂದು Rಾಗದವರು

ನSೆ$=ೊಂಡು ಬರTೇ=ೆಂತ ನ Lಳ ೆ
BೆU$=ೊಂ9ರುೆ%ೕೆ .”
This averment clearly shows that Sri
Venkataraman Devaru is the family deity
of Pathumudy family, to which the

- 25 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

plaintiffs and defendants are the
members. In fact this document also
shows that properties were separately
reserved for the management and
viniyogas of family deity.
13. Other crucial documents
areEx.P2 (i), Ex.P2(ii), Ex.P2 (iii) which
are the certified copies of final decree,
compromise petition and judgment in
O.S.No.141/1953 on the file of
Subordinate Judge of South Kanara. Out
of these documentsEx.P2(ii) is the crucial
document, in which it is stated in clear
terms as to what are the properties
endowed for the Management and
viniyogas of family deity and who has to
manage the said properties. Clause III of
Ex.P2(ii) shows that properties described
in Schedule ‘A’ in the said compromise
petition endowed to the family deity Sri
Venkatramana Devaru and the same is
set apart to sustain its daily worship and
for performing viniyogas detailed therein.
14. Clause IV states about who
has to perform the said viniyogas and
ceremonies and who has to manage

- 26 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

properties. As the entire dispute revolves
around this condition, it is better to cull
out the said portion of compromise
petition, which reads as under:
The Pooja viniyogas and
ceremonies are to be performed
perfectually by the senior most
member of the senior most branch of
st
the family at present 1
defendant Shankaranarnappaya, by
being in possession of the property
perfectually and from generation to
generation. The said property being
properties belonging to the family deity
Sri Venkatramana Devaru is not to be
alienated or encumbered in any
manner nor is it liable for any debts. In
case it is alienated or encumbered in
any manner or made liable for any
debts the other members of the family
have the right to take appropriate
proceedings for protection of the trust
and its properties.

15. From the recital in Ex.P2(ii), it
is very clear that senior most member of
senior most branch of the family has
perform pooja viniyogas and ceremonies
by being in possession of properties
perpetually and from generation to
generation.
16. In this background, it is
necessary to note who has to in

- 27 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

possession of plaint schedule properties
so as to manage and perform the
viniyogas of the family deity. Under Ex.P2
(ii) Shankara Narayanappayya who is the
elder brother of deceased defendant No.1
and the father of defendant Nos.2and 3
was authorized to manage the properties.
According to the plaintiffs after the death
of Shankara Narayanappayya, his
younger brother H. Venkata Rao who is
defendant No.1 in this case should have
become the trustee of the diety and its
properties so as to manage the same. On
the other hand, it is the contention of the
defendant No.2 that after the death of
Shankara Narayanappayya, same
devolves on the children of Shankara
Narayanappayya and not on his younger
brother. The defendant No.1 has died
during the pendency of this suit. Hence,
the above dispute has lost its importance.
However, according to the plaintiff, even
it is considered that after the death of
Shankara Narayanappya, said trusteeship
devolves on his children, then the
trustee-ship should have been taken up
rd
by 3 defendant who is eldest son of

- 28 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Shankarnarayanappaya and not by
defendant no2.
17. In fact this proposition of
plaintiffs is indirectly admitted by the
defendant No.2 in his written-statement
at Para No.15, wherein he contends that
after the death of Shankara
Narayanappayya, the trustee-ship came
to his eldest son Ramakrishnayya and he
is in possession and enjoyment of the
deity properties in terms of the
compromise decree. Hence defendant
No.2 also admits that after the death of
Shankara Narayanappayya, the
3rddefendant should become the trustee
of the family deity.
18. From the above contention, it
is very clear that after the death of
Shankara Narayanappayya, if not the
defendant No.1, at least as admitted by
defendant No.2the eldest son of Shankara
Narayanappayya i.e., defendant No.3
should have become the trustee of the
family deity as per terms of compromise
petition. The defendant No.2could not
have become the trustee of the family

- 29 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

during the life time of deceased defendant
No.1 H. Venkata Rao or defendant No.3.
It is made clear trusteeship should
devolve from generation to generation on
the senior most member of the senior
most branch which includes the family of
H.Venkata rao and said term in decree
can not be restricted to only family of
Shankara Narayanappayya, which is also
one of the family of senior most branch.
19. According to the defendant
No.2 as could be seen from the
averments at Para No.16 of the written
statement he is in possession of the
property as a care taker and he is acting
as per the direction of the Trustee
Ramakrishnayya. In fact it is suggested to
3
P.W.1 in his cross-examination that "
ೇ

2
ಪ Mಾ7 ಅವರು ೇ ಪ Mಾ7 ೆ ೇವ0ಾ1ನದ

ಆಡ-ತವನು) ೋ9=ೊಳDTೇ=ೆಂದು ಅವರ ಾVಯ

,
ಸಮWಮದ45 Aೇ-ರು ಾ%GೆಂದGೆ ನನ ೆ ೊM%ಲ5

ಆವM% ಂದ ಇವM%ನವGೆಗೂ ಸದ/ ಉ?ೕY GಾZ ಇವರು

ೇವ[ =ಾಯNಗಳನು) ನSೆ$=ೊಂಡು ಬರುM% ಾ;GೆಂದGೆ

- 30 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

.
" Whereas defendant No.3 in his
ಸ/ ಅಲ5
written statement at Para No.12 in clear
words has stated that he has not
nd
authorized either 2 defendant or anyone
to look-after, administer the suit
properties or the trust properties and
even he has contended that he has not
been appointed as a trustee by anyone at
anytime and he has not administering the
same as he is permanently settled in
U.S.A. From this averments of written
statement of defendant No.3, it is very
clear that defendant No.3 has not
authorized the defendant No.2 to manage
the property of deity as caretaker as
contended by the defendant No.2.
20.
Even though the defendant
No.2 has contended that he is in
possession of plaint schedule properties
as caretaker. Ex.P24 the certified copy of
Genealogy said to be given by
defendantNo.2 shows that he has claimed
the right over plaint schedule property in
the capacity of the Manager of deity
properties contending that he is eldest
male member of the family of Shankara

- 31 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Narayanappayya. Further Ex.P25 which is
the certified copy of statement said to be
given by mother of defendant No.2 before
the Revenue Authorities shows that
defendant No.2 is managing the deity
properties and it was prayed to replace
the name of Shankara Narayanappayya
nd
with the name of 2 defendant in the
Revenue records of the deity properties.
Ex.P26 is the notarized copy of the
Mutation Register Extract, which shows
nd
that name of 2 defendant, was mutated
in the revenue records as Manager of the
Deity Properties. According to the
defendant No.2 himself in the written
statement, defendant No.3 is the eldest
male member of the family of Shankara
Narayanappayya after the death of
Shankara narayanappaya. However
nd
Ex.P24, 25 and 26reveals that the 2
defendant by claiming as eldest member
of the family of Late Shankara
Narayanappayya and got changed the
records of deity properties in his name as
the Manager of Deity Properties. The
R.T.C. Pahanis Exs.P40 to 54 shows that
name of defendant No.2 is entered as

- 32 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Manager/Trustee of Sri Venkataramana
Devaru.
21. The learned counsel for the
defendant No. 2 during his argument
submitted that the defendant No.3is
residing abroad. Hence naturally
defendant no2 is looking after deity
properties. The said aspect is not pleaded
and proved by defendant no2. Even if it is
true then also same is not in accordance
with the terms of decree.
22. All these documentary
evidence shows that defendant No.2 is
acting as Trustee of the Deity Properties
and taken possession of the deity
properties without any legal sanction and
against the terms of compromise decree
in O.S. No.141/1953.
23. In view of above discussion I
hold that Sri Venkataramana Devaru is
the family deity of plaintiffs and
defendants and by virtue of compromise
and final decree in O.S. No.141/1953 on
the file of Subordinate Judge, South
Kanara, Mangalore, the senior most
member of the family of the senior most

- 33 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

branch is the trustee and the said trustee
has to perform the devatha viniyogas and
nd
ceremonies of family deity and the 2
defendant has taken possession of the
properties of the family deity and acting
as a trustee of Sri Venkataraman Devaru
and its properties without any legal
sanction and against the terms of decree
in O.S.No.141/1953. Accordingly I hold
Issues No.1 to 3 in the Affirmative.
24. Issues No.4 and 5: These
issues are related to each other. Hence in
order to avoid the repetition of facts, I
propose to take up these issues together
for common discussion.
25. According to the plaintiff, the
nd
2 defendant after taking trustee-ship
illegally has alienated number of deity
properties, he has mortgaged the
properties to the Co-operative Societies
and has raised huge loans for his personal
benefit. He has demolished a building
which was used as Ugrana for the deity
house and constructed a building on his
self acquired property by using the
materials of the said demolished building.

- 34 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

He has also sold the power tiller which
was the property of the deity. He has
transferred the electricity connections,
telephone connections to his name which
ought to have been in family deity’s
name. The valuable trees in the trust
nd
properties were cut and sold by the 2
defendant and thereby he has made huge
nd
unlawful gain for himself. The 2
defendant and his henchmen
haveencroached the kumki lands of the
nd
deity. The 2 defendant has not done any
acts so as to upkeep of the
Ashwathakatte. Further it is contented
that devatha viniyogas are not performed
nd
properly and 2 defendant has stopped
many ceremonies which were being
performed since time immemorial namely
Upakarma, Deepavali, Go-Pooja,
Baleendra Pooja, Shukravara Pooja,
Samaradhana on Vishu Day, monthly
Chowthi, without any reasons and the
members of the family are not allowed to
worship the family deity whenever they
wish. Naivedyas and Hannukayee are not
offered to the deity as per the custom
prevailing. Kolas to the family daivas

- 35 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

known as ‘Babukodi Panjurili’ is not being
offered regularly. The Daily Poojas are
being performed by a man who is not a
qualified Purohit. Hence the allegation
against the defendant No.2 is of two folds
one is that the defendant No.2 has
misused the properties of family deity and
another is pooja viniyogas and
ceremonies are not properly performed.
26. Before appreciating the
evidence with respect to the allegation
made in the plaint, it is important to note,
the terms of compromise mentioned in
Ex.P2 (ii). Said document clearly shows
that what are the pooja, viniyogas and
ceremonies and rituals that has to be
performed to the family deity. Further in
Clause(IV) of the said document, it is
specifically stated that the properties of
family deity SriVenkataramana Devaru is
not to be alienated or encumbered in any
manner, nor it is liable for any debts. The
said Clause has also given right to the
other family members to take steps for
protection of Trust and its properties, if
the said properties are alienated or
encumbered or made liable for any debts.

- 36 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Hence if properties of the deity’s alienated
or subjected to debts or encumbered,
then it will be a clear violation of terms of
the said compromise. The responsibility is
also casts upon the Trustee of the family
deity to perform devatha viniyogas and
ceremonies as stated in Ex.P2(ii).
27. From my findings on Issues
No.1 to 3, it is very clear that properties
of family deity is in the possession of
wrong person i.e., defendant No.2 even
though he has got no right under
Ex.P2(ii). This shows that person who
should have been the Trustee is not
acting as Trustee.

28. The P.W.1 in his evidence has
clearly stated about the averments with
respect to mismanagement of the
deity properties and non-performing of
pooja viniyogas and ceremonies by
defendant No.2.In the entire cross-
examination of P.W.1, it is not even
suggested to P.W.1 that all the viniyogas
and ceremonies are performed properly.
It is also alleged that the defendant no2 is
not allowing the other family members to

- 37 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

offer pooja. Even this aspect is not
specifically denied in the cross
examination of PW-1,on the other hand it

is suggested to PW-1 that
ಾನು ಾೆ ಹೂ9ದ

ನಂತರ ಪ Mಾ7ಗಳO ಸದ/ ೇವಾ ೕಗ=ೆE ಬರTೇ9

ಎಂದು Aೇ-ರು ಾ%GೆಂದGೆ 0ಾ\ ಾೆ ಸ45ಸುವ ದೇ
.
So far as
Aೇ-ರು ಾ%Gೆಂದು 0ಾ\ ನು9ಯು ಾ%Gೆ
performance of viniyogas and ceremonies
are concerned, if defendant No.2 had
performed the said viniyogas and
ceremonies regularly as per the customs,
then same should have been in the
exclusive knowledge of defendant No.2.
Then Defendant No.2 should have
entered the witness box and should
have deposed in what manner he has
performed the devatha viniyogas and
ceremonies. The performing of viniyogas
and ceremonies is the positive act and
same should have been stated by the
defendant No.2 himself. Non performing
is a negative aspect which cannot be
expected to be proved by the plaintiff .
Non-performing of viniyogas and
ceremonies is an omission to do

- 38 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

something and performing of viniyogas
and ceremonies is a positive act of the
defendant No.2 which have been within
the exclusive knowledge of defendant
No.2. Hence according to Section 106 of
the Indian Evidence Act, burden of
proving the said fact which is especially
within the knowledge of defendant no2 is
on defendant No.2 himself.
29. However, the defendant No.2
has not entered the witness box to give
evidence with respect to the allegation
made against him and to establish that he
is performing his duties as trustee in
terms of Ex.P2 (ii) and all viniyogas and
ceremonies are performed properly. In
this background, it is necessary to quote
the principles laid down in the decision
relied by the counsel for the plaintiff
AIR 1999 SUPREME COURT
reported in
1441 INBETWEEN VIDHYADHAR V/S.
MANKIKRAO AND ANOTHER , where in it
is held that;
“(A) Evidence Act (1 of 1872),
S.114-Adverse inference-Party to suit-
Not entering the witness box-Give rise
to inference adverse against him.”

- 39 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Where a party to the suit does
not appear into the witness box and
states his own case on oath and does
not offer himself to be cross examined
by the other side, a presumption
would arise that the case set up by
him is not correct”.
The said ruling is aptly applicable to the
case on hand and adverse inference has
to be drawn against defendant No.2 for
not entering the witness box.
30. So far as mis-management of
the property is concerned, the plaintiff
has to prove this allegation strictly as it
has got huge consequences. In this
background, I have gone through the
documentary evidence produced by the
plaintiff.
31. According to plaintiff, certain
properties of family deity were left out in
the compromise petition at Ex.P2 (ii) and
one of such property is Sy.No. 60-1
measuring 2 acres 62centsof Manchi
Village and said property is
unauthorizedly sold by the wife and
children of late Shankara
st
Narayanappayya to the 1 Trustee to one
Smt. Aruna Shankara. In this

- 40 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

background, I have gone through the
documentary evidence i.e., Ex.P19.Ex.P19
is the certified copy of Sale Deed dated
13.9.1991, under whichan extentof2
acres 62 cents in Sy.No. 60-1 of Manchi
Village was sold by wife and children of
nd
Shaankara Narayanappayya including 2
defendant to one Smt. Aruna Shankar.
The learned counsel for the defendant
No.2 vehemently argued that said
property was not including in A schedule
mentioned in Ex.P2(ii) and the same
cannot be properties of family deity Sri
Venkataramana Devaru.
32. In this background, it is
necessary to ascertain whether the said
property is the property of Sri.
Venkataramana Devaru or not.Ex.P20 is
the Settlement Register Extract pertaining
to Patta No. 126, which stands in the
name of Sri Venkataramana Devaru,
Pathumudi Mane. In the said document,
at serial no 16, Sy.No.60-1 measuring 2
acres 62 cents is mentioned. Further
Ex.P22 is the R.T.C. Pahani pertaining to
Sy.No. 60-1, wherein, in Column No.9
entry mentioning the name of Pathumudi

- 41 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Venkataramana Devau is rounded off and
name of Aruna Shankar has been entered
as per Sale Deed.Exs.P20 and 22 clearly
shows that Sy.No.60-1 of Manchi Village
was standing in the name of family deity
Sri. Venkataramana Devaru. Further, it is
important to note that in Ex.P19 Sale
Deed at Page No.6, it is averred that has
come to the family of Shankara
Narayanappayya in the partition.Ex.P18 is
the Partition Deed that has taken place in
the family of Shankara Narayanappayya
and H. Venkata Rao. In Ex.P18A schedule
properties allotted to Shankara
Narayanappayya and other schedule
properties allotted to other members of
the family. In the entire Ex.P18 i.e.,
Partition Deed Dated 29.4.1967SY.No.
60-1 measuring 2 acres 62 cents is not
allotted to any of the parties in the said
partition deed. It is important to note that
as contended by the learned counsel for
the defendant No. 2 that Sy.No. 60-1 is
not allotted to Sri Venkataramana
Devaruin Ex.P-2(ii).Similarly said survey
number was also not allotted to any of
the parties in the said compromise

- 42 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

petition nor in the partition deed at Ex.P-
18.From this, it is very clear that by
mistake land in Sy.No.60-1 is left out in
the said compromise petition. At the
same time, it is clear that the same stood
in the name of family deity and the family
of the defendant No.2 had no right to
alienate the same.Exs.P20, 22 and 18
clearly shows that the family members of
defendant No. 2 has illegally sold the
property in Sy.No.60-1 belonging to the
family deity Sri Venkataramana Devaru.
33. Another allegation against the
defendant No.2 is that during the
pendency of the suit, the defendant No.2
has sold a portion of the property in
Sy.No.262/2A belonging to family deity to
one Poornima Prabhu. Ex.P39 is a Sale
Deed dated 10.3.1999, under which the
defendant No.2 has sold an extent of 1
acre 20 cents in Sy.No.262-2A to one
Poornima Prabhu. At Page No.7 of the
said Sale Deed it is mentioned that in the
previous partition deed survey number is
mentioned as 262-2 and after plotting
said survey is re-numbered as 262-2A. In
Ex.P39 there is also reference to partition

- 43 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

deed in the family, which is marked at
Ex.P18. Hence according to
defendantNo.2, he has sold the property
which has to come to his share in the
partition deed in Ex.P18.
34. In Ex.P18 at Page No.20
property allotted to 2nd defendant is
shown as D schedule, wherein he was
allotted with an extent of 2 acres 62 cents
in Sy.No. 262-2 and not in Sy.No. 262-
2A. The defendant has not produced any
documents to show that during plotting
his Sy.No. 262-2 is given fresh survey
number as Sy.No. 262-2A. This aspect
assumes importance because Ex.P3
R.T.C. Pahani is with respect to
Sy.No.262-2A of Manchi Village and same
measures 2 acres 7 cents and Column No.
9 shows that same is in the name of
family deity Sri Venkataramana Devaru.
The khata mentioned in Column. No.9of
Ex.P3is161.Similarly,the Katha numberof
properties of deity in Ex.P-3 to 17
bearsKatha no.161. Ex.P34 is the RTC
Pahani pertaining to very same survey
number, wherein extent is reduced to 87
cents, thereafter to 17 cents. If an extent

- 44 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

of 1 acre 20 cents which is sold by the
defendant No.2 to one Poornima Prabhu
is deducted from the total extent of 2
acres 7 cents, then remaining extent will
be 87 cents as found in Ex.P34. Hence, it
is very clear that defendant No. 2 has
sold the property of the family deity
standing in Sy.No.262-2A taking
advantage of fact that he also allotted
with the share in Sy.No. 262 under
Ex.P18.
35. It is the specific allegation of
the plaintiff that the defendantNo.2 has
raised loan by mortgaging the property of
family deity with Co-operative Bank and
used the said amount for his personal
use. In Ex.P2(ii) compromise petition
there is clear bar to encumber the
property of family deity or to raise loan
on the said property. The documents
marked that Exs.P40 to P54 are the RTC
Pahan is of the properties standing in the
name of family deity Sri Venkataramana
Devaru, in which column No.11 clearly
shows that said properties are mortgaged
with Vyavasaya Seva Sahakari Bank,
Manchi and loan was raised. Of course,

- 45 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

the learned counsel for the defendant
No.2 vehemently argued that same is an
agricultural loan and the same is availed
for cultivation of agricultural property.
Whatever may be the case encumbering
of said property and raising loan on the
property of family deity is against to the
terms of decree under which Trust was
formed.
36. The plaintiff has alleged that
defendant No.2 has cut and sold valuable
trees situated in the property of family
deity. In order to substantiate his claim,
Plaintiff No.2 has produced document at
Ex.P29, which is the copy of the
complaint given to R.F.O., alleging that
defendant No .2 is cutting trees in the deity
properties.Exs.P30, 31 and 32
substantiate said allegations. In this
background, it is important to note the
suggestions put to P.W.1 by counsel for
defendant No.2 in the cross-examination
of P.W.1 at Page No.12. It is suggested
that
2£ÉÃ ¥ÀæwªÁ¢ CªÀgÀ ªÀÄ£ÉAiÀÄ G¥ÀAiÉÆÃUÀPÁÌV
ªÀÄgÀªÀ£ÀÄß PÀqÉ¢gÀÄvÁÛgÉAzÀgÉ ¸ÁQë CªÀgÀÄ ªÀiÁgÁl

- 46 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

By this,
ªÀiÁqÀ®Ä ªÀÄgÀ PÀqÉ¢gÀÄvÁÛgÉAzÀÄ ºÉÃ¼ÀÄvÁÛgÉ.
defendant No.2 has admitted the cutting
of trees. Of course it is contended that he
has cut the trees for his personal use.
EventhendefendantNo.2has got no right to
cut the trees from the diety properties for
his personal use.

37. Ex.P27 is a crucial document,
which is certified copy of Form No.7 filed
by defendant No.2 seeking grant of
occupancy right pertaining to property of
the family deity Sri Venkataramana
Devaru. This documents makes it clear
that defendant No.2 is trying to engulf the
property of family deity.
38. According to defendant No.2 in
his written statement itself has stated
that defendant No.3 Ramakrishna is the
eldest son of Shankara Narayanappayya.
However it is pertinent to note that in
Ex.P24 which is the certified copy of
Genealogical tree filed by the defendant
No.2 and Ex.P25 which is the statement
said to be given by mother of defendant
No.2, the defendant No.2 is shown as the
eldest son of the family and even they

- 47 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

have not mentioned the name of
defendant No.3 who is the eldest male
member of family in Ex.P24 and Ex.P25.
On the basis of Exs.P24 and P25, the
defendant No.2 has managed to get his
name entered in the revenue documents
of properties of family deity and same
could be seen at Ex.P26. Exs.P24 to 26
clearly shows that the defendant No.2
with the sole object of to get his name
entered in the records of Deity properties
has given wrong information to the
revenue authorities.
39. All documentary evidence and
oral evidence of plaintiff No.2 shows that
the defendant No.2 by taking the
trusteeship of family deity Sri
Venkataramana Devaru has mismanaged
the Trust properties and has not
performed the devatha viniyogas and
ceremonies properly as stated in Ex.P-
2(ii). Accordingly, I hold Issues No.4 and
5 in the Affirmative.
40. Issue No.6: According to
contesting defendants suit is bad for non-
joinder of necessary parties and mis-

- 48 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

joinder of necessary parties. According to
contention of defendants only male
members are made as parties to the suit
and female members are not arrayed as
parties to the suit. Hence, it is contended
that suit is bad for non-joinder of
necessary parties. In this regard, the
learned counsel for the defendant no3
also relied upon the commentary of
Hindu Law by Mayne at Page No.1171
wherein it is stated that “A female can
be the manager of a religious
endowment though she cannot
perform spiritual functions”.
41. On the other hand, the learned
counsel for the plaintiff has submitted
that Private Trust was created by way of
compromise in O.S. No. 141/1953,
wherein no female members of the family
were parties and further contended that
females cannot perform viniyogas and
manage the properties after their
marriage. Hence they are not necessary
parties. Further it is argued by the
learned counsel for the plaintiff that it is
not specifically pleaded in the written
statement as to who are all the necessary

- 49 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

parties and how they are necessary
parties to the suit. To counter this
argument the learned counsel for the
defendant no3 submitted that females
had no right in the partition in the year
1953 hence they were not made as
parties in the suit in O.S.141/1953.
whereas in this case they are necessary
parties.
42. Allegation about the non-
joinder of necessary parties should be
clear and specific and should not be a
vague statement. A vague statement in
the written statement cannot be sufficient
to non-suit of the plaintiff on the ground
of non-joinder of necessary parties as
held in ruling reported in (1993) 3 SCC 49
(Laxmi shankara Harishankara Bhatt Vs
Yashram Vasta). Further it is appropriate
to know who is necessary party to the
proceedings. The Apex Court in the ruling
reported in (1996) 5 SCC 539has held
that “A necessary party is one whose
presence is absolutely necessary and
without whose presence, issue
cannot be effectually and completely

- 50 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

adjudicated upon and decided
between the parties”.
43. As argued by counsel for the
plaintiff it is not specifically and clear
terms pleaded in the written statement as
to who are all the necessary parties. In
this background, I have gone through the
evidence on record. The cross-
examination of P.W.1 discloses that the
female members of the family are not
as parties. However, Ex.P25
arrayed the
statement said to be given by mother
of defendant No.2. It is stated that in
their community the women had no right
to manage the property of deity and
same has to be managed by the male
only. If this document is considered, then
women in the community of the plaintiffs
have got no right to manage the deity
properties. Further, P.W.1 in his cross-
examination has admitted that
F PÉÃ¹£À
ªÁ¢ UÉÆÃ¥Á®gÁªïCAzÁdÄ ¥sÉ§æªÀj
2005gÀ°è ºÉÆÃVzÁÝgÉ. CªÀjUÉ 9 d£À ªÀÄPÀÌ¼ÀÄ
EgÀ¨ÉÃPÀÄ. CªÀgÀ ªÀÄPÀÌ¼À£ÀÄß F ªÁådåzÀ°è
¥Ánð ªÀiÁqÀ°®è. CªÀgÀ ªÀÄPÀÌ¼À£ÀÄß

- 51 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

¥ÁnðªÀiÁr®è JAzÀÄ PÉÃ½zÀ ¥Àæ±ÉßUÉ ªÀiÁr®è
JAzÀÄ GvÀÛj¹zÁÝgÉ. ºÉAqÀw ªÀÄPÀÌ½UÉ
zÉÃªÀ¸ÁÜ£ÀzÀ ºÀPÀÄÌ ªÀåªÀºÀgÀuÉAiÀÄ°è
¥Á®ÄUÉÆ¼ÀÄîªÀ ºÀPÀÄÌ EzÉAiÀiÁ JAzÀÄ PÉÃ½zÀÝPÉÌ
J®èjUÀÆ EzÉ JAzÀÄ GvÀÛj¹zÁÝgÉ. 1£ÉÃ
¥ÀæwªÁ¢ 97 gÀ°è wÃjºÉÆÃVzÁÝgÉ. CªÀjUÉ 2 d£À
ªÀÄPÀÌ¼ÀÄ, 1£ÉÃ ¥ÀæwªÁ¢AiÀÄ ªÀÄPÀÌ¼À£ÀÄß F
ªÁådåzÀ°è ¥Ánð CUÀvÀå E®è.
" Hence it is clear that the LRs of
deceased plaintiff No.1 and defendant
No.1 are not brought on record. The
plaintiffs have filed a memo after the
death of defendant No.1 that
defendant No.1 had arrayed as trustee
of the deity. Hence the LRs are not
necessary. However said memo cannot be
accepted as right to perform
viniyogas and ceremonies of the
family deity affects each member of
the family. Further it is important to note
the admission of plaintiff in his cross-
examination, where in it is clear that

“
ªÉÄÃ¯É ºÉÃ½zÀ J¯Áè ªÀåQÛUÀ¼ÀÄ læ¹ÖÃ
D¹ÛAiÀÄ°è J®èjUÉ ºÀPÉÌzÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQë

CzÀÄ zÉÃªÀgÀ D¹Û CzÀ£ÀÄß

- 52 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

«Ä¸ïªÉÄÃ£ÉÃeïªÉÄAmïªÀiÁrzÀgÉ CzÀ£ÀÄß vÀ¦à¸ÀÄªÀ
ºÀPÀÄÌ J®èjUÀÆ JzÉ JAzÀÄ GwÛj¹gÀÄvÁÛgÉ. zÉÃªÀgÀ
PÁAiÀÄðPÀæªÀÄUÀ½UÉ J®ègÀÆ ºÁdgÁUÀ¨ÉÃPÉAzÀÄ ºÀPÀÄÌ
EzÉAiÀiÁ JA§ ¥Àæ±ÉßUÉ J®èjUÀÆ ºÀQÌzÉ DzÀgÉ J®èjUÀÆ
©zÀÄªÀÅ¢®èªÉAzÀÄ GvÀÛj¸ÀÄvÁÛgÉ. zÉÃªÀ PÁAiÀÄðPÀæªÀÄzÀ°è
¥Á¯ÉÆÎÃ¼ÀÄîªÀ J¯Áè ªÀåQÛUÀ½UÉ F ªÁådåzÀ°è ¥Ánð
ªÀiÁr®è JA§ ¥Àæ±ÉßUÉ ¸ÁQë CªÀgÀ §UÉÎ £À£ÀUÉ UÉÆwÛ®è
£Á£ÀÄ ªÉÊAiÀÄQÛPÀªÁV F zÁªÉAiÀÄ£ÀÄß læ¹Ö£À
»vÁ¸ÀQÛAiÀÄ£ÀÄß UÀt£ÉUÉ vÉUÉzÀÄPÉÆAqÀÄ ªÀiÁrzÉÝÃ£ÉAzÀÄ
Hence it is very clear that
GvÀÛj¸ÀÄvÁÛgÉ .”.
even though all members of the family
who are not arrayed as a parties to
the suit had no right to manage the
deity properties, but they have right to
participate in pooja viniyogas and
ceremonies. It is also important to
note that the management of the deity
property also indirectly affects the
viniyogas and ceremonies.

44. In this background, it is
relevant to have glance over provision

- 53 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Order 1 Rule 9 of C.P.C. which
reads as under:
“Misjoinder and non-jonder :
No suit shall be defeated by reason
of the mis-joinder or non-joinder of
parties, and the Court may inevery
suit deal with the matter in
controversy so far as regards the
rights and interests of the parties
actually before it.
( Provided that nothing in this rule
shall apply to non-joinder of a
necessary party).
45. Hence, this court can deal with
the dispute which can be decided in the
presence of parties before it, when rights
of the parties absent will not be adversely
affected. In this background, I have gone
through the dispute raised in the plaint
and reliefs claimed in the plaint by the
plaintiff.
46. The relief (i) (A) in the plaint is
with respect to declaration and relief (ii)is
for the framing of scheme bythe court
cannot be adjudicated without the
presence of all the members of the

- 54 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Pathumudi family as it involves not only
management, but also effects the pooja
viniyogas and ceremonies.
47. So far as other reliefs are
concerned, the same is in tune with
compromise decree in O.S. No.141/1953.
The relief claimed therein only deals with
effective administration of deity
properties and viniyogs of deity as per the
true spirit of compromise decree in
O.S.No.141/53.The dispute covered under
the reliefs other than the reliefs(i) (A) and
(ii)can be decided even in the absence of
other defendants except defendant No.2,
as no prejudice will be caused to them
and as it will not adversely affect their
right. Accordingly, I hold Issue No.6
partly in the Affirmative holding that
reliefs No.(i)(A) and (ii) are hit by non-
joinder of necessary parties.
48. Issue No.7: The defendant
No.2 has contended that this court has
got no jurisdiction to entertain the suit. In
fact this court on 19.8.2011 held Issue
No.7 in the Affirmative and returned the
plaint to present before Hon’ble Sr. Civil

- 55 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Judge, Bantwal. Thereafter again the
plaint was presented before this court.
Thereafter this court vide its order Dated
24.11.2012 again ordered to return the
plaint to present before the proper court
holding that this court has no jurisdiction
to try the suit. Thereafter the Hon’ble Sr.
Civil Judge, Bantwal in M.A. 1/2013 has
set aside the order of this court dated
24.11.2012 and directed this court to
decide the suit expeditiously, preferably
within 6 months. From this virtually, this
Issue No.7 stands in the Negative.
49. Further it is important to note
that the family deity Sri Venkataramana
Devaru and its properties are situated
within the jurisdiction of this court and
the cause of action person pleaded in the
plaint is also arisen within the jurisdiction
of this court. The suit has to be instituted
in the court of lowest grade competent to
try it. In view of Sections 15, 16 and 20
of C.P.C., this court has got jurisdiction to
try the suit. Accordingly, I hold Issue
No.7 in the Negative.

- 56 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

50. Additional Issue No.1: The
defendant No.2has contended that the
suit is barred by law of limitation. In this
regard, the learned counsel for defendant
No.2 relied upon the Provision of Article
113 of Limitation Act and contended that
present suit if bad in law. However it is
pertinent to note that according to
Section 10 of the Limitation Act, there is
no bar of limitation with respect to suit
against the person who is vested with
Trust properties.
51. Further according to Section 22
of the Limitation Act when there is
continuing the breach of contract, then a
fresh period of limitation begins to run. In
this case, the terms of compromise
decree is in the nature of terms of
contract. For every breach of said terms
of contract there is a new cause of action
and it cannot be held that suit is bad
under law of limitation.
52. Hence the contention of the
defendant No.2 that suit is barred under
the law of limitation cannot be

- 57 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

appreciated. Accordingly, I hold
Additional Issue No.1 in the Negative.
53. Issue Nos. 8,9,10 and Addl.
Issue No.2: These issues requires
common discussion. Hence I have taken
up these issues together for discussion.
54. Crucial aspect that has to be
considered in this case is whether the suit
is hit for non compliance of Section 92 of
C.P.C. This court vide order dated
15.12.1994 has overruled the office
objection with respect to bar of suitunder
section 92 of C.P.C., keeping open right
to take such contention by the
defendants. The defendants have not
seriously pursued this aspect. However it
is pertinent to note that Section 92 of
C.P.C. deals with ‘Trust created for a
public purposes of a charitable or religious
nature ’. Whereas dispute covered under
this suit even though of religious nature,
but it is a private trust and no public
purpose is involved. Hence Section 92 of
C.P.C. is not applicable to the case on
hand.

- 58 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

55. Further the counsel for the
plaintiff has relied upon the ruling
reported in A.I.R. 1970 SUPREME
COURT 532 (BETWEEN RAMACHAND
(DEAD) BY HIS LEGAL
REPRESENTATIVES, V/S. THAKUR
JANKI BALLABHJI MAHARAJ AND
ANOTHER) where in it is held that;
“The Civil Courts have
jurisdiction to frame a scheme for
the management of a temple which
is not a public but a private trust ”.
Further in Para No. 10 of the said ruling,
it is held that;
“The Civil Court has therefore
jurisdiction to frame a scheme for
management of the temple and
its properties”
The learned counsel for the plaintiff also
relied upon the decision reported in AIR
1968 Supreme Court 915 (Kt.N. Rm.
Tehnappa Chettiar and others Vs.
N.S.Kr. Karuppan Chettiar and
others,) wherein Para No.6 it is held
that;
“Even in the case of a private
trust a suit can be filled for the
removal of the trustee or for
settlement of a scheme for the
purpose of effectively carrying out

- 59 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

the objects of the trust. If there is
a breach of trust or
mismanagement on the part of the
trustee, a suit can be brought in
acivil court by any person
interested for the removal of the
trustee and for the proper
administration of the endowment”
In view of the principles laid down
in the above said rulings suit filed by the
plaintiff is maintainable.
56. The relief No.1 claimed in the
plaint has become infractuous as
defendant No.1 has died during the
pendency of the suit. Moreover the
evidence on record does not show that
the defendant No.1 had taken the
Trusteeship of family deity and its
properties. Hence the relief No.(i) cannot
be granted.
nd
57. The 2 prayer of plaintiff to
declare that the line of succession
provided in the suit O.S.No.141/1953 on
the file of Subordinate Judge of South
Kanara, Mangalore with respect to
devolution of Trusteeship of endowed
property has becomes a failure, which
results in mis-management of the
rd
endowed property and another 3 relief

- 60 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

of framing of scheme by this court for the
proper management of the schedule
properties in a different manner than
described under the decree in
O.S.No.141/1953can not be granted in
view of my finding on issue No.6.
58. Moreover it cannot be held
that line of succession in
O.S.No.141/1953 has become a failure,
merely because some of the members of
the family have not adhered to the terms
of the said compromise terms in O.S. No.
141/1953. Of course, there is some
vacuum in the compromise terms in
O.S.No.141/1953. There is no guidelines
what if the senior most member of senior
most branches of the family does not
accept the trusteeship or if he is
disqualified to become the trustee. Said
vacuum can be filled in this suit and
except for framing of few guidelines
inconsonance terms of decree
inO.S.No.141/1953. This court cannot
declare as prayed in the plaint that line of
succession provided in suit
O.S.No.141/1953 has become a failure or
it cannot frame fresh scheme for the

- 61 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

management of schedule properties
totally different from the terms in
O.S.no.141/1953.as it may amount to
setting aside the decree in the suit
O.S.141/1953 as apprehended by learned
counsel for the defendant no3.
59. The alternative relief claimed
by the plaintiff can be granted as said
relief is inconsonance with the terms in
O.S. 141/1953 and as it helps to fill the
vacuum that exists in the previous
compromise decree.
60. It is also important to note
that in view of my findings on Issues
Nos.3 and 4, the defendant No.2 has
occupied the post of trustee of family
deity and its properties without legal
sanction and there is also sufficient
material to hold that he has acted against
the terms of Decree in O.S.No.141/1953
and has mismanaged the deity
properties.The defendant No.2 cannot be
permitted to continue in the post of
Trustee of the deity Sri Venkataramana
Devaru and its properties. The defendant
No.2 is also disqualified to occupy the

- 62 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

post of trusteeship in future even in case
senior most member of senior most
branch of the family refuses to accept the
post of trusteeship, because of his proven
management. In case senior most
member of senior most branch refuses to
accept the post of trusteeship, same
should be addressed immediately within
30 days, in writing by the said senior
most member of senior most branch of
the family to the next senior most
member of the senior most branch of the
family so that he can take up the
responsibility. In case none of the
member of senior most branch accepts
the post of trusteeship then it shall go to
next senior most branch.
61. It is important to note that
there is no provision for rendering of
accounts by the trustee in the
compromise terms in
O.S.No.143/1953.As trusteeship is a
responsibility on the person who to take
up the said responsibility to manage the
properties and perform viniyogas and
ceremonies on behalf of entire family, he
should maintain the accounts of the

- 63 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

income and expenditure. Of course it is
difficult to give accounts to each and
every member of the huge family, but at
least trustee should give the accounts to
the person who is interested to know.
Hence whoever accepts the trusteeship
shall maintain the accounts and same
shall be furnished to any of the members
of the family on demand by the notice in
writing. Similarly surplus income if any
should be properly accounted and should
be spent for improving the endowed
properties. Similarly, in this case the
defendant no.2 should render accounts
from the date of his taking office. i.e.
from the date of death of Sri. Shankara
narayanappaya, till he hands over
trusteeship to other person. It is pertinent
to note that in view of section 10 of
Limitation Act there is no limitation with
respect to claim of accounts for such a
long period.
62. In view of above observation, I
hold Issue No.8 partly in the affirmative
granting alternative relief and Issue No.9
in the Affirmative and Issue No.10 in the

- 64 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Affirmative, and the Addl. Issue No.2 in
the Partly Affirmative.
63. Issue No.11: In view of my
findings on Issues No.1 to 10 and
Additions Issue Nos. 1 and 2, I proceed to
pass the following:
ORDER
The suit of the plaintiff No.1 is
hereby dismissed in view of memo at
Ex.D1.
The relief (i)(A) and relief(ii)
claimed in the plaint is hereby rejected.
The suit of the plaintiff No.2 is
hereby partly decreed as per the following
terms:

1) The defendant No.2 is hereby
directed to handover Trusteeship
of the family deity Sri
Venkataramana Devaru and its
properties to the 3rddefendant
who is the present senior most
member of the senior most
branch of the family, within 30
days from the date of decree.
In case 3rddefendant
refuses to accept the Trusteeship
then it shall go to next senior
member as observed in Para
No.60 of the Judgment.

2) The defendant No.2 is hereby
directed to render accounts of
the income and expenditure of

- 65 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

the trust properties from date
the death of Shankara
Narayanappayya till he hand
over Trusteeship to other
person.

3) The Trustee of the family deity
Sri Venkataramana Devaru and
its properties shall maintain
accounts and surplus income if
any should be spent on
improving endowed properties.

4) The Trustee of the family deity
and its properties shall furnish
the accounts to any of the
member of the Pathumudy
family on demand by notice in
writing.
Having regard to the relationship between
the parties, parties are directed to bear
their own costs.

Draw decree accordingly.”

7. Aggrieved by the aforesaid judgment and decree
passed by the trial Court, the appellant approached the
first appellate court in RA No.12/2014, during the
pendency of which the defendant No.2 who had contested
the suit and against whom the trial court had passed
judgment and decree, had expired and the appellant
No.1/defendant No.6 who was the appellant No.2 in the

- 66 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

appeal was appointed as a interim receiver. During the
pendency of the appeal, vide Order on IA No.2 dated
12.07.2017, in the said appeal in RA No.12/2014 filed by
the appellants herein, the plaintiffs filed cross objections,
insofar as it related to non-grant of all the reliefs sought
for by the plaintiffs.
8. Both the appeals in RA No.12/2014 and the cross
objections were taken up together by the first appellate
court which dismissed both the appeal and cross objection
by holding as under;
“16. In view of the rival contentions, pleadings
of the parties, the following points that arise for my
consideration, they are:
1. Whether second plaintiff had established that by
virtue of compromise entered in O.S.No.141/1953
on the file of Subordinate Judge, D.K., Mangalore,
the senior most member of the family of the
senior most branch is the trustee for the purpose
of performing devatha viniyogas and ceremonies
of the family deity?
2. Whether the second plaintiff had established that
second defendant had taken possession of the
properties and was acting as a Trustee of Sri.
Venkatramana Devaru without any legal sanction?
3. Whether the suit of the plaintiffs was bad for non-

- 67 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

joinder of necessary parties and whether said
contention is available for the appellants herein?
4. Whether the second plaintiff had established that
he was entitled to relief of declaration as
contended in the cross objection?
5. Whether documents filed by the appellant No.2
under Order 41 Rule 27 can be received at this
stage?
6. Whether appointment of Commissioner can be
made as prayed for by defendant No.26?
7. Whether findings given by the Trial Court require
interference by this Court?
8. What Order?
17. My findings on the above points are:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : In the Affirmative
Point No.4 : In the Negative
Point No.5 : In the Negative
Point No.6 : In the Negative
Point No.7 : In the Negative
Point No.8 : As per final order for the
following:
R E A S O N S
18. Point Nos.1 to 5 : For the sake of
convenience and to avoid the repetition of facts, I
would like to deal them together.
Learned counsel for the appellant Nos.2 and 3

- 68 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

have vehemently argued that Judgment of the trial
Court is incorrect so far as Grounds of Appeal raised
by them. It is pertinent to note that appellants were
defendant Nos.2 and 6 to 13 and among them,
defendant No.2, during the pendency of the appeal
died and legal heirs sought to come on record by an
application, came to be rejected on the ground that
legal heirs are necessary parties as far as
performance of viniyogas are concerned. The said
order has become final and therefore, now in the
Grounds of Appeal, no one is there and there
remains appellant Nos.2 to 9 who are defendants
Nos.6 to 13 in the above case. He has further argued
that plaintiff No.2 is contesting the suit and plaintiff
No.1 has submitted memo and stated that he is not
interested to prosecute the case, accordingly, after
his death, his legal heirs brought on record as stated
in the Appeal Memo and their contention that the
legal heirs of first plaintiff have not been brought on
record cannot be accepted. While canvassing his
argument, he took the Court to para 3 of the plaint,
wherein, second plaintiff has stated about how they
have been performing the viniyogas of Sri.
Venkatramana Devaru, who installed deity in the
house of plaintiffs and defendants and it is stated
that their forefathers had installed the deity in the
family house, but there is no allegation that the said

- 69 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

house is dedicated for the deity and only person who
performs viniyogas and in possession of deity
properties can only continue etc. is not correct. In
the absence of specific pleading that family house
has been dedicated to deity, same cannot be
accepted and therefore, the contention of the second
plaintiff that legal heirs of the second defendant have
no right to continue in deity house and same shall be
handed over to persons who perform viniyogas etc is
not correct as they have no house of their own.
Further, it is argued by learned counsel for the
second appellant that there is no document to show
that Trustee for the purpose of looking after the
properties and viniyogas has to be changed by
rotation is not correct and there is no document at all
and according to him and learned counsel for the
second appellant P.N.J. that when there is no proper
G-tree submitted by the plaintiff no.2, then, it is very
difficult to ascertain who is the senior most member
and who are all alive as on today and who were all
alive as on the filing of the suit cannot be found out.
Further, senior most member of the senior most
branch means it goes to senior most son of senior
most Trustee and not to his brother on the basis of
shile shile right and therefore, contention of the
second defendant that on account of failure of the
defendant No.2 or the Branch of

- 70 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Shankaranarayanappayya, other brothers have no
right to perform viniyogas or become Trustee of the
deity cannot be accepted. No where in the earlier
deed it is stated that if one branch fails to perform
viniyogas as per the wishes of then surviving
members, then, it shall be go to second branch is
improper. Both the learned counsels appearing for
the second and third appellant, submits the same
thing and the case of the second plaintiff is not
maintainable, on the ground that he has no locus-
standi to file the suit as he is not the member of the
senior most branch and there is nothing to give
account as it is not found in Compromise Decree.
Since Compromise Decree is silent about giving
account, then direction of the Trial Court giving
nd
direction to the 2 defendant to give account and
hand over the charge to senior most member as
observed in the para 60 is not correct. According to
them, intention of the plaintiff is beyond scope of the
Compromise Petition and therefore, they cannot rely
upon the Compromise Decree and then agitate their
grievance in the present suit and there is nothing to
show that when the second defendant and other
defendants intimate the plaintiffs and other members
of his branch is not stated in the plaint and further
there is no failure of line of succession, because,
third defendant did not act as Trustee after the death

- 71 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

of Shankaranarayanappayya. Therefore, it falls on
the next senior most member i.e. second defendant
and therefore, the contention that the second
defendant has taken Trusteeship illegally is incorrect.
According to them, prayer made in the Cross-
objections cannot be entertained for the reason that
in a suit of this nature, relief of declaration to declare
that line of succession as mentioned in the
Compromise Decree is a failure cannot be granted
without the presence of all the members of the four
branches.
19. As far as framing of scheme is concerned, it
falls within the jurisdiction of the District Court and
this Court cannot grant such relief, accordingly, trial
Court has opined and granted alternative relief.
When the trial Court has opined that senior most
member of the senior most branch has to be
appointed as Trustee of the family deity as observed
in para 60, then, if there is failure on the part of the
second defendant to hand over the charge or if there
is failure on the part of the defendant No.6 while
taking the charge of the Trusteeship of the deity
properties, then, remedy lies by filing execution and
not by seeking relief by way of Cross objections. If
th
the 6 defendant who at present acts as a Trustee
for the purpose of viniyogas though without adhering
direction of the Court, he is not bound to give any

- 72 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

account as there is no pleadings against the
defendant No.6 i.e. P. Jagadish Rao. Therefore,
defendants who support the second plaintiff contend
that Jagadish Rao is not competent and he has taken
possession of the properties illegally etc. cannot be
considered. Further, he has argued about the sale of
the properties by the second defendant and some
other defendants including defendant No.6 cannot be
accepted, because, in the Partition Deed had
amongst Shankaranarayanappayya and his children
of the year 1967 the disputed survey number fell to
the share of 2nd defendant. So, he took the Court to
documents produced by the plaintiff one by one.
Ex.P1, i.e. the Partition Deed entered in the year
1942 amongst the senior most members of the
family of the plaintiffs and defendants wherein, they
have stated about performance of viniyogas by them,
subsequently by making arrangement and till then,
they have to perform the viniyogas jointly by the
members all the branches. There is no dispute about
four branches as stated in G-tree produced along
with I.A.No.10 and there is no dispute about the said
fact and Ex.P1 reveals the existence of so many
properties to the Pathumudy family and in page 17 of
Ex.P1 reveals that they have reserved Patta No.127
of Ira Village and Patta No.126 of Manchi Village and
they have decided to perform viniyogas jointly and

- 73 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

persons who joined the Partition Deed were
ancestors of the present four branches who are
branches of Ramakrishnayya, Venkatramanayya,
Narayanappayya & Ananthayya. The plaintiffs and
defendants who sail with the plaintiff hail from
common branch of Venkatramanayya, who has got
two children by name Vasudevayya and
Anantharamappayya and plaintiffs hails from
Vasudevayya. Other defendants’ hail from branch of
Ramakrishnayya and Ramakrishnayya had two
children by name Shankaranarnappayya and
Venkatrao and contesting defendants are branch of
Shankaranarayanappayya. The second plaintiff was
also third senior most member of senior most branch
of Venkatramanayya, under whom second plaintiff
claims right of viniyogas. Therefore, Ex.P1, Partition
Deed of the forefathers of the four branches have
joined and divided the properties and they have
come to a common understanding that performance
of deity shall be done jointly. That means, even as
on the date of Ex.P1, deity was in existence and
properties were earmarked for the same. Ex.P2 is
the Final Decree for Partition and Judgment in
O.S.No.141/1953 which was rendered on the basis of
Compromise petition and while answering issue No.5
it is held that there has been a valid dedication of ‘C’
schedule properties in favour of Sri Venkatramana

- 74 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Devaru does not arise for consideration as the
parties have now agreed to effect a partition of the
‘C’ schedule properties by way of joint memo and
while answering Issue No.6 it was held that Sri.
Venkatramana Devaru is the family deity and
Compromise Petition submitted in the said suit at
Ex.P2(II) discloses at para 3 that other than the
properties divided in the Partition Deed dated 02-01-
1942, i.e. ‘C’ schedule properties, the ‘A’ schedule
properties mentioned in the said Compromise
Petition is set apart to sustain its daily worship and
for performing the viniyogas and ceremonies of the
family deity. Then, in para IV it is stated that Pooja
viniyogas and ceremonies are to be performed
perpetually by the senior most member of the senior
most branch of the family at present 1st defendant,
Shankaranarnappayya, by being in possession of the
properties perpetually and from generation to
generation. The said properties being properties
belonging to the family deity Sri. Venkatramana
Devaru is not to be alienated or encumbered in any
manner nor is it liable for any debts. In case it is
alienated or encumbered in any manner or made
liable for any debts, the other members of the family
have the right to take appropriate proceedings for
protection of the trust and its properties. (underline
is mine)

- 75 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

20. So, in para 4 of the Compromise Petition
filed in O.S.No.141/53 shows that deity properties
shall not be encumbered or alienated. Further, the
line of succession is in favour of senior most member
of the senior most branch, then, senior must be his
son like that. Then, according to them, when it is
shile shile right, the said right will not go to second
branch on account of failure to perform viniyogas or
parting of properties of deity. Moreover, viniyogas
which are stated in Ex.P2(II) are less in number. On
the other hand, more viniyogas are performed, but
plaintiff and other brothers are not attending and
simply they are grinding axe against defendants for
the reason best known to them. The schedule ‘A’
properties are having 20 items and as on today,
some of the properties have gone to tenants and
remaining properties are there and according to the
plaintiff, it is more than 15 acres – Areca garden and
paddy fields. When the parties to the earlier suit,
who are the forefathers of the present plaintiff and
defendants, then, it cannot be held that plaintiffs
have no right to question the illegalities. In the
Ex.P1, Partition Deed, they divided certain properties
and made an arrangement for the performance of
viniyogas jointly by the members or in the
alternative way one after another, then, contention
of the contesting defendants that there is no such

- 76 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

terms etc. cannot be considered. The main argument
of the learned counsel for the appellant Nos.2 and 3
is that second defendant is alleged to have been
taken possession illegally and there is no question of
giving account and they ought to have sought for
damages for alleged misuse of the properties and
therefore, when legal heirs of the second defendant
are not on record, then, they cannot be asked to give
account. Therefore, decree of the trial Court directing
the second defendant to hand over the possession of
the properties right from the date of death of
Shankaranarnappayya till decree is not correct as it
is beyond limitation. Another tenor of argument is
that they have contended that suit is bad for non-
joinder of necessary parties, deity is not a party,
some of the members have not been arrayed as
defendants, therefore, suit fails and in support of
their contention, learned counsel for the second
appellant has cited the decision in the case of V.K.
Kelu vs. C.S. Siva Rama Pattar reported in AIR
1928 Madras 879, wherein, at page 885, it is
observed that when there is no allegation of
maladministration or breach of trust by one of the
defendants who subsequently died, then, charges
against him personally lapse. Since second defendant
is no more and legal heirs are not on record then,
such account cannot be sought by next Trustee who

- 77 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

either elected by other brothers of the first branch or
he has taken the charge independently as senior
most member. No doubt, second appellant Jagadish
Rao is younger to Ramesh Rao and there is nothing
to show that how he has taken possession of the
properties and how he has handed over the
properties etc. Any how, when the second defendant
dies and when the legal heirs are on record, then, if
there is any sale of properties or loss to deity
properties, found while filing execution, can be
recovered from his personal assets.
21. As far as rendering account by legal
representatives is concerned, he relies upon the
decision in the case of Purushotham Vasudeo vs.
Ramakrishna Govind reported in AIR (32) 1945
Bombay 21, wherein, it is held that
“….When an agent dies without rendering
account to his principal, his estate in the hands of
his legal representatives is liable for whatever
may be found due to the principal on account, the
principal can file a suit for an account against the
legal representatives for the determination of the
amount due to from the deceased agent, but the
legal representative cannot be called upon to
render an account in the technical forensic sense
in which the agent himself would be liable in an
ordinary suit for rendition of accounts. In such a
suit filed by the principal against the deceased
agents legal representative the burden of proof
primarily lies upon the plaintiff, and it is for the
Court to take an account on such materials as are
laid before it by the parties and determined what
amount, if any, was due to the plaintiff from his

- 78 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

deceased agent.
Therefore, according to learned counsel for the
second appellant, legal heirs are not answerable or
present Trustee i.e. second appellant is not
answerable to the direction given by the Court.
Learned counsel for the third appellant would argue
in the similar way by referring to written statement
filed by defendant Nos.2 and 3 about the non-joinder
of necessary parties and according to them, Sri.
Venkatramana Devaru is necessary party as it is
juristic person and while canvassing his argument
regarding the non-joinder of necessary parties, he
took the Court to para 14 of written statement of
defendant No.2 and in para 18, chief of P.W.1 at
page 7, wherein, it is stated by P.W.1 that

1
ಆ /ೕM ೇವರ ಆ$%ಯನು) ಪGಾRಾGೆ 6ಾ9ದ =ಾರಣ ೇ

Tಾ ಂ] ನ ಸದಸ Gೆಲ5ರೂ ಆಡ- ೆಾರGಾಗುವ ಅಹN ೆಯನು)

ಕJೆದು=ೊಂ9ರು ಾ%Gೆ . 2 ೇ ಪ Mಾ7ಯು ತನ) ತಂHಯ

ಮದು ೆ Aಾಗೂ ತನ) ಮಗನ ಉಪನಯನ =ಾಯNಕ ಮಗಳನು)

ಬಹಳ ಜೃಂಭ`ೆVಂದ ೇವರ ಆ$%ಯ ಉತ M%Vಂದೇ

.
6ಾ9ರುವFದು ಉಲ5ಂಘ ೆbೕ ಆHರುತ% ೆ
However, there is no corresponding pleading to
that effect. So, according to them, said allegation
cannot be accepted without there being any
pleadings. Thereafter, he took the Court to cross
examination of P.W.1 at para 23, wherein, P.W.1 has

- 79 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

admitted that father of the second defendant had 7
male and 5 female children and his senior most son
is defendant No.3 and he is in America. So, when
defendant No.3 is in America, then, direction of the
trial Court to hand over the charge to defendant No.3
cannot be considered as he is not available here and
he comes once in a way. Further, it is elicited that
defendant No.2 was asked to take charge of temple
and properties by his mother as per the direction of
defendant No.3 etc. In para 17 of the cross-
examination of P.W.1, it is elicited that he is not in
good terms with family of Umesh Rao and Gopal Rao
and it is elicited that all have got right to attend the
viniyogas and all have not been made as parties, but
where is the no pleadings by appellant Nos.2 and 3,
they cannot take advantage of pleadings of second
and third defendant and when they have withdrawn
their case by supporting the illegality of defendant
No.2, then, contention of the second and third
appellant cannot be accepted.
22. Now coming to the sale of the properties, it
is argued that S.No.262/2, second defendant was
also given properties as per Partition Deed produced
at Ex.P18, wherein ‘D’ schedule was given to him and
‘D’ schedule reveals that he was given 2.40 acres in
S.No.262/2 which is altogether different from one
reserved for the devatha viniyogas. It is contended

- 80 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

that since he had been given properties in the same
survey number which comes towards northern
portion, reduction of extent in the RTC, without there
being report of the Commissioner, the observation of
the trial Court that second defendant has sold the
properties out of deity properties is incorrect and
cannot be accepted. Learned counsel for the
appellant No.3 would argue in similar way by relying
upon Ex.P18 document and RTCs’. However, trial
Court has observed in its Judgment at page 45, para
32 that S.No.60/1 measures 2 acres 62 cents stated
to be properties of Sri Venkatramana Devaru as per
Ex.P20 document and S.No.60/1 found at Serial
No.16 and RTC pertaining to S.No.61/1 wherein
column No.9 entry is mentioned in the name of
family deity Sri Venkatramana Devaru. When we
peruse Ex.P20 and P22 they indicate that house at
Manchi Village was standing in the name of Sri.
Venkatramana Devaru. Further, it is important to
note that in page 19 of Sale Deed, at para 6 that the
said properties were allotted to the family of
Shankaranarnappayya in the Partition Deed. The said
Partition Deed is produced at Ex.P18 and ‘A’ schedule
of the Ex.P18 was allotted to Shankaranarnappayya
and other properties are allotted to other members
of the family. However, in the said Partition Deed,
dated 29-04-1967, S.No.60/1 is not included and it

- 81 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

was not partitioned, therefore, contention of the
second appellant that S.No.60/1 is not included in
Compromise Petition etc. cannot be considered. The
said properties was also not allotted to the branch of
Shankaranarnappayya in the Ex.P18, Partition Deed,
therefore, when the properties left out without
allotting to any of the members and that Ex.P20,
Settlement Register reveals that it stood in the name
of family deity, then it cannot be held that there is
no fault in selling the properties to Aruna
Shankaranarayana Rao. As far as properties sold in
S.No.262/2A is concerned, as per Ex.P39, Sale Deed,
second defendant has sold extent of 1.20 acres of
land in S.No.262/2A to one Poornima Prabhu and in
the said Sale Deed, it is mentioned that S.No.262/2
and it is re-numbered as S.No.262/2A. There is also
reference to the said entry in Ex.P9, Sale Deed, who
made the said change is not known. The second
defendant had been allotted ‘D’ schedule in Ex.P18,
Partition Deed, wherein he was given 2.62 acres of
land in S.No.262/2 and not 2A. Therefore, by taking
advantage of the survey number, he has sold the
properties which found to be illegal by the trial Court.
There is no appeal by the second defendant or his
legal heirs and third defendant has not preferred any
appeal. There is no pleadings by present appellants
before the trial Court, therefore, they cannot argue

- 82 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

on the facts of the case and they cannot rely upon
the facts elicited through P.W.1 as it is not supported
by their pleadings. At the most they can argue on
the legal aspects and nothing else. The observation
of the trial Court at para 34 of the Judgment that
property was sold to Poornima Prabhu by second
defendant is correct which belongs to family deity
and extent has been reduced in the RTC at Ex.P34
and total extent sold and remaining is included which
becomes one mentioned in the RTC, therefore,
second defendant is answerable.
23. Now coming back to mortgaging or
encumbering of the properties. It is vehemently
argued by both the counsels that when the
properties are agricultural properties, no properties
can be maintained or improved with out availing loan
and if usufructs are not sufficient to meet the
expenses of agricultural operation, then, one should
go for agricultural loan, therefore, encumbering of
the properties is not a matter it is only for the benefit
of the deity properties. When they admit that the
properties have been encumbered, but for
improvement of the land, then, it is nothing but
violation of the terms of the Compromise Petition
produced at Ex.P2(II). Therefore, trial Court has
rightly observed that properties have been
mortgaged to Vyvasaya Seva Sahakri Bank, it is

- 83 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

continued till 2009 as could be seen from RTC. This
aspect will be considered in detail while appreciating
the argument canvassed by learned counsel for the
plaintiff and defendant No.26.
24. Another tenor of argument of learned
counsel for the appellant Nos.2 and 3 is that if there
was any mistake in the Compromise Decree in the
year 1953, then, it should have been rectified by
subsequent deed or proceedings and having failed to
do so, now, it cannot be stated that properties are
deity properties is of no significance for the reason
that second defendant who has taken charge without
recourse to earlier Compromise Decree and there is
nothing to show that he has been entrusted by then
senior most member of the first branch. So, in view
of the above fact, argument canvassed by learned
counsel for plaintiff regarding the sale of the
properties from the properties of the second
defendant cannot be accepted and it is without any
basis.
25. As far as performance of viniyogas is
concerned, it is strenuously argued that they have
been performing all the viniyogas and photographs of
the such viniyogas are produced under I.A.No.11,
but this Court cannot make out as to whether those
performance were done properly by seeing photos

- 84 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

and that should have been shown by giving evidence
before the Trial Court by second or third defendant
who have not stepped into the witness box. Other
defendants have withdrawn their vakalath and it is
nothing but indirectly supporting illegal acts of the
second defendant and therefore, according to
learned counsel for the defendant No.26 the act of
appellants amounts to disobedience of the Court
order and filing of affidavits supporting appellant no.
3 to be receiver is highly deprecable for the reason
that persons who ought to have opposed when illegal
activities were taken place against the wishes of their
forefathers, they kept quiet and according to learned
counsel for the defendant No.26, inaction on the part
of members of first branch or other branches who
supported the first branch in continuing illegal
activities claiming right under shile shile goes against
them. Any how, I will discuss this aspect
appreciating argument of learned counsel for second
plaintiff.
26. As far as grant of alternative relief is
concerned, according to the learned counsel for the
second appellant, when alternative prayer is granted
by trial Court, main relief cannot be sought and I do
concede that when alternative prayer is granted,
then, rejection of main prayer cannot be sought once
again by way of crossobjections. In this regard,

- 85 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

decision reported in the case of U. G. Srinivasa Rao
vs. Vinaykumar and others reported in 2004(3)
KCCR 1637 is relevant.
27. Per contra, learned counsel for the second
plaintiff has argued by referring to Ex.P2,
Compromise Petition and Decree which shows how
the trust properties have to be enjoyed and managed
and in fact, defendant No.1 was mismanaging the
deity properties, and while canvassing his argument,
he took the Court to plaint para 6, how the trust has
to be administered by the branches and different
branches which are signatories to Ex.P2,
Compromise Decree and also arrangement made by
them while entering into a Partition Deed/Ex.P1,
performance of viniyogas of deity and subsequently,
defendants have been impleaded in the present suit.
He referred to para 3 and 4 of Ex.P2 which clearly
shows the nature of duty cast upon the trustee who
takes right of trusteeship by shile shile and
therefore, when a senior most member of senior
most branch fails to perform viniyogas and
administer the Trust as per the wishes of the parties
to Ex.P1 and P2, then, other members of the said
branch particularly, branch of
Shankaranarayanappayya have no right to continue.
Similarly, learned counsel for the defendant No.26
addressed his argument stating that when the other

- 86 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

members of the Shankaranarayanappayya Branch
failed to take suitable action against the first
defendant or second defendant who mismanaged the
properties and sold the properties along with
appellant Nos.2 and 3 and when they were parties to
the Sale Deed in respect of deity property, they have
no locusstandi to be Trustee of the deity and
continue the administration of the Trust. Further, he
argued that it is the defendant No.2 and 3 who filed
their written statement and appellants 2 and 3
herein, who were defendants No.6 and 7 and other
appellants have not filed their written statement. On
the other hand, their counsels filed a memo stating
that they have no instruction from defendant Nos.6
to 12, 14, 18, 29 to 30, 38 to 40, 43, 44, 48, 62 and
66 and this could be seen from order sheet dated 17-
08-2010 of the lower Court. Further, according to
him, contention of the appellants that deity is
necessary party or other members are necessary
parties cannot be accepted for the reason that even
for the Partition Deed of the year 1943 i.e. Ex.P1 or
Compromise Decree i.e. Ex.P2(II) deity was not a
party and therefore, contention of the appellants
cannot be accepted. Further, defendant No.2 has
filed written statement stating that he is not a
trustee, but he is only a care taker. Ramakrishnayya
was the Trustee and as per his direction he is acting

- 87 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

and therefore, he cannot be hauled up for giving any
account. However, defendant No.3 in his written
statement, at para 12, has stated that he has not
taken trusteeship of the deity nor permitted the
second defendant, Umesh Rao to continue as care
taker and continue the Trustee. Therefore, when the
senior most member failed to take responsibility of
Trustee and allowed the junior most member to take
the properties of the Trust and deal with the
properties as he pleases, then, it is against spirit of
Compromise Decree. Of course, there is nothing in
the Compromise Decree to show that in case, if
mismanagement is done, what should be done?
However, there is a rider that Trustee should not go
against terms of the Compromise Decree and
mismanage the Trust properties and they never
thought that in future, persons like defendant No.2
or defendant No.3 would mismanage the Trust
properties. Further, after direction by the trial Court,
the next senior most member is Ramesh Rao, Son of
Late Venkat Rao, but he has not taken Trusteeship
and there is nothing on record to show that why he
has not taken and how Jagadish Rao, third appellant
took Trusteeship, who handed over the properties of
the deity and management of the Trust to him is not
stated. However, suddenly when the application of
appointment of receiver was filed to change

- 88 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

appellant No.3 to 9, respondent Nos.5 to 8, 19 to 25,
29 to 41, 51 to 56, 18 and 18, 27, 43, 45, 48 to 50
filed affidavits stating that they have no objection for
third appellant Jagadish Rao to continue the
Trusteeship and deal with the properties of deity.
How could they file such affidavits when knowing
fully well that said Jagadish Rao is party to the Sale
Deed along with second defendant Umesh Rao, who
sold the properties under Ex.P19, Sale Deed and
subsequently by the second defendant under Ex.P39
Sale Deed. So, for Ex.P19, Sale Deed, the present
receiver/Jagadish Rao is also party, therefore, he has
no right to continue as Trustee of the deity. When
the Judgment of the trial Court at page 60 reveals
that second defendant shall hand over the
Trusteeship to third defendant who is senior most
member within 30 days and if he is not willing, then,
the same shall be taken by next senior most
member, who is Ramesh Rao and not Jagadish Rao.
They have not complied the orders of the Trial Court,
nor obtained the stay of the same by this Court. The
argument of learned counsel for the appellants that
plaintiff should have taken execution of the decree
cannot be considered to be sound for the reason that
for everything they want to see that plaintiff has to
approach the Court and redress his grievance. The
conduct of the appellants goes to show that some

- 89 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

how to take possession of properties and enjoy the
same and gulp the income without giving account
and therefore, the contention of the plaintiff No.2
and defendant No.26 that they are hellbent upon to
see that the Trusteeship is not given to second
branch for the reason best known to them that deity
has got vast properties and properties are yielding
areca garden. So, in the name of deity, they want to
make unlawful gain which is not permissible. In such
a situation the Court can interfere and impose
condition for the better management of the Trust. In
the said regard, learned counsel for the defendant
No.26 and plaintiff No.2 drew the attention of the
Court Trust Act which provides for management of
the Trust and what should be done in case of
mismanagement of the properties of Trust etc. The
Indian Trust Act 1882 provides for Interpreation
of Trust as per Sec.3 which means that :
“….A ‘trust’ is an obligation annexed to the
ownership of properties, 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”.
The Section 15 deals with Care required by the
trustee which states that :
“….A trustee is bound to deal with the trust-
properties as carefully as a man of ordinary
prudence would deal with such properties if it
were his own; and, in the absence of a contract to

- 90 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

the contrary, a trustee so dealing is not
responsible-for the loss, destruction or
deterioration of the trust properties”.
The Section 19 deals with Accounts and
Information which states that :
“…A trustee is bound (a) to keep clear and
accurate accounts of the trustproperties, and (b)
at all reasonable times, at the request of the
beneficiary, to furnish him with full and accurate
information as to the amount and state of the
trust-properties”.
The Section 23 deals with Liability for breach of
trust which states that :
“…Where the trustee commits a breach of
trust, he is liable to make good the loss which the
trust-properties or the beneficiary has thereby
sustained, unless the beneficiary has by fraud
induced the trustee to commit the breach, or the
beneficiary, being competent to contract, has
himself, without coercion or undue influence
having been brought to bear to him, concurred in
the breach, or subsequently acquiesced therein,
with full knowledge of facts of the case and of his
rights as against the trustee”.
The Section 35 deals with Right to settlement of
accounts which states that : 73 R.A. 12/2014
“…When the duties of a trustee, as such, are
completed, he is entitled to have the accounts of
his administration of the trustproperties examined
and settled; and, where nothing is due to the
beneficiary under the trust, to an
acknowledgement in writing to that effect”.
The Section 47 deals with Trustee cannot
delegate which states that :

- 91 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

“…A trustee cannot delegate his power and
he shall not use trust-properties as his own
properties is concerned.
The Section 51 deals with Trustee may not use
trust-properties for his own profit which states that:
“…A trustee may not use or deal with the
trust-properties for his own profit or for any other
purpose unconnected with the trust”.
So, when we read the relevant provisions of
Trust Act, which is also applicable to private Trust,
then, one thing is clear that whether the second
defendant has acted in accordance with provisions of
Trust Act? Whether he has acted in the true spirit of
parties to Ex.P1, Partition Deed and Ex.P2(II)
Compromise Decree. When Ex.P1 deals with
performance of viniyogas by each branch in rotation
till alternative arrangement is made. When
alternative arrangement is made as per Ex.P2(II),
then, the senior most member headed by
Shankaranarayanappayya, who was then senior most
member, performed everything properly. But after
his death, problem started and next senior most son
was reluctant to take charge of Trust owing to
different reasons and ultimately, the said
responsibility came to be shouldered by the second
defendant, who mismanaged the properties as
observed by the trial Court and application filed
before the Revenue Authority for change of mutation

- 92 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

by giving wrong G-tree showing that he is the senior
most member by ignoring third defendant, then,
conduct of the second defendant should be borne in
mind in deciding the case. When other members are
agreeing with second defendant in dealing with the
properties and that second defendant filed an
application for grant of deity properties as per Ex.P7/
Form No.7 and order of the Land Tribunal at Ex.P8
goes to show that they want to gulp the properties
for their own use which is against the provisions of
Trust Act. Therefore, trial Court by considering all
these aspects has held that second defendant has no
right to continue as Trustee and directed to hand
over the Trusteeship to the third defendant who has
not taken charge of the same. They have neither
followed the direction of the trial Court nor submitted
about it before this Court and therefore, this Court
has got every right to pass suitable order for
protection of trust-properties of the deity and
performance of viniyogas. In the said regard, learned
counsel for the second plaintiff has cited the decision
in the case of Sheikh Abdul Kayum and others and
Mulla Alibhai ad others vs. Mulla Mulla Alibhai and
others reported in AIR 1963 S.C. 309 , wherein, it
is stated that,
“…Trustee cannot transfer their duties,
functions and powers to some other body of men
and create them trustees in their own place unless

- 93 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

this is clearly permitted by the trust deed, or
agreed to by the entire body of beneficiaries. A
person who is appointed a trustee is not bound to
accept the trust; but having once entered upon
the trust he cannot renounce the duties and
liabilities except with the permission of the Court
or with the consent of the beneficiaries or by the
authority of the trust deed itself. Nor can a trustee
delegate his office or any of his functions except in
some specified cases. The rules against
renunciation of the trust by a trustee and against
delegation of his functions by a trustee are
embodied in respect of trusts to which the Trusts
Act applies in Sec.46 and 47 of the Act”.
Even provisions of Trust Act say that Trust
cannot have every power, then, how the third
appellant took charge of the properties? Has he
intimate the trial Court or this Court while taking
charge? Has he intimated other members of other
branches who are contesting the matter, nothing is
on record. So, he has taken charge whimsically and
administering the properties and now contends that
viniyogas are done properly and plaintiff and other
branch members are not attending. This is very
strange when conduct of the members of the first
branch is of such kind that they endorse the illegal
activities of the second defendant and taking charge
by the second appellant without compliance of order
of the trial Court and they insist for execution of the
decree by the second plaintiff, then, it is unfortunate
that all the members of the senior most branch
themselves are acting against the Compromise

- 94 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Decree and intention of the parties under Ex.P1,
Partition Deed. Therefore, as rightly pointed out by
learned counsel for the defendant No.26 and plaintiff
No.2, they have no right to continue the Trusteeship
and performance of viniyogas . No doubt, the legal
heirs of defendant No.2 have not been arrayed as
parties, it is the matter relating to performance of
viniyogas wherein, females are not given importance.
Moreover, females are given on marriage and
therefore, they cannot perform viniyogas. Therefore,
even in the Partition Deed of the year 1943 at Ex.P1
and Compromise Decree at Ex.P2(II), females are
not parties, therefore, nonjoinder of necessary
parties as contended by appellant Nos.2 and 3
cannot be accepted and deity is not necessary party
and there is no written statement at all by them
before the trial Court, therefore, they cannot take
shelter under written statement of defendant Nos.2
and 3 filed before the Court. Both the defendant
Nos.2 and 3 have not stepped into the witness box to
substantiate their claim. Even after appointment of
the appellant No.2 as receiver with direction to
furnish the accounts by the end of June and
December, no such account is furnished on the
ground that he requires to give account only from
the date of his charge as receiver and he is not
bound to give account itself goes to show that they

- 95 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

want to wriggle out of their responsibility. If really,
receiver is interested to protect the properties of the
deity, when there is direction of the Court, he should
have furnished at least account from the date when
he took charge of the Trusteeship and properties of
the deity. The conduct goes against the receiver
appointed by this Court. However, as rightly
observed by the trial Court, as per the Compromise
Decree it goes to senior most member of the senior
most branch and if they fail, then, it goes to the
second branch. Of course, manner in which it is
being administered, goes to show that they are
against the terms of the decree and therefore, rider
can be put so that properties of the deity can be
protected.
28. Learned counsel for the defendant No.26
has also filed Counter-affidavit regarding the
affidavits filed by various respondents in the above
case and in the affidavit it is stated that when
properties are mismanaged by the trustee, then,
Court can interfere and a suitable order for the
purpose of protection of the Trust and deity can be
passed, as held in the decision in the case of
Ramchand (dead) by his legal representatives
vs. Thakur Janki Ballabhji Maharaj and another
reported in AIR 1970 S.C. 532 wherein it is held
that

- 96 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

“…A person who has made large donations
for the maintenance of the temple, has clearly a
substantial interest to maintain a suit for
possession of the temple and its properties
against the pujari or manager, on behalf of the
deity to protect the properties from
mismanagement and misappropriation”.
Sec.92 has no application for the reason that it
is a private Trust and this aspect has already been
held by trial Court in its order and it has reached its
finality.
29. As far as power of Trustee to delegate is
concerned, it is argued that Trustee cannot delegate
his power to anybody. The decision in the case of
Shri Mohadeo Jew and another vs. Balkrishna Vyas
and another reported in AIR 1952 Calcutta 763 is
relevant wherein it is held that –
“…No trustee delegate his powers and duties
to another trustee. An agreement to do so is
illegal and void”.
Therefore, second defendant has failed to hand
over the charge as per the directions and after his
death, how a junior most member took charge of the
properties is a question that requires determination
by this Court. Therefore, one thing is clear that all is
not well with the first senior most branch, but they
tried their level best to see that Trusteeship is
continued with their branch for the reason which is
known to all, as deity properties yield a lot of

- 97 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

income. Further, it is argued that when Panaka Pooja
and kola to Panjurli were not performed etc. and trial
Court has observed all these aspects and regarding
mismanagement, pleadings in the plaint is sufficient
as it was the intention that properties shall not be
alienated and alienation of the properties amounts
mismanagement. It requires no specific pleadings as
contended by first appellant. When entire members
of the first branch kept quiet by seeing illegal
activities done by the second defendant and sale of
the properties, mortgaging of the properties, non-
performance of certain viniyogas , then, I am of the
view that they cannot claim it as right as per Ex.P2
Compromise Decree. Further, when the suit is filed
making certain allegation against defendant No.2 and
inaction on the part of other senior most members of
the branch, they kept quiet without filing suitable
written statement and now they are coming and
filing affidavit supporting the second appellant which
appears to be very strange and reason is oblivious.
As already stated second appellant is not ready to
give account from the date he took charge of the
Trust. Third defendant contends that he has not
handed over the charge to second defendant and
second defendant states that he is only a care taker
and it is the defendant No.3 Ramakrishnayya is the
Trustee. The second defendant has taken charge of

- 98 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

the Trust and got mutated properties of the Trust,
sold the properties and now contending that
properties sold belongs to him as he has received
share under 1967 Partition Deed. It is very strange.
Trial Court has considered all these aspects.
30. To counter the argument canvassed by
learned counsel for the plaintiff No.2 and defendant
No.26, learned counsels for appellants have argued
that no action can be taken against second appellant
Jagadish Rao, as there is no direction by the trial
Court to give account. No doubt, this Court has no
intention to take action against the second appellant,
but he has a moral obligation, and he is bound to
give account in the interest of deity and he must
have some respect for the orders of the Court which
is not forth coming as could be seen from the
proceedings in the above case and earlier case. No
doubt, receiver is bound to give account from the
date of appointment, but if he fails to give account,
what could be the next step? I am of the firm view
that if receiver fails to give account as per the orders
dated 12-07-2017 then, he cannot continue as
receiver and members of the second senior most
branch are entitled to take possession of properties
and viniyogas of the deity including removal of any
persons from the family house and continue to
perform viniyogas in the true spirit by giving notice

- 99 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

to all the members of all the branches or on demand
in writing as observed by the trial Court and
otherwise, there is no end to the litigation.
Therefore, this Court can direct the receiver to
furnish the accounts and on his failure to furnish the
accounts as per the direction, then, members of the
second branch i.e. plaintiff No.2 and defendant No.26
have got every right to take possession of the
properties by executing this Decree which is in
addition to the Decree of the trial Court to deal with
the properties as observed. Whether second
appellant can continue as Trustee or not, that matter
can be thrashed out in execution proceedings. If he
fails to furnish account, the relief that is going to be
given is in addition to relief granted by the trial Court
and plaintiff No.2 has got right to execute the Decree
of the trial Court and take advantage of the direction
given by this Court as a supplementary direction for
the purpose of smooth running of viniyogas and
administration of the Trust properties in true spirit.
When we peruse 1943 Partition Deed that the
properties were earmarked and they are yielding
areca garden. They simply endorse the activities of
the second appellant and if they find it difficult to
manage the properties within the income of the
properties, then, certainly second senior most
branch, can administer the trust without any mistake

- 100 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

on their part in true spirit of Compromise Decree as
per Ex.P2(II). As far as relief claimed by the plaintiff
No.2 in the Crossobjection cannot be entertained and
trial Court has given proper reasons for the same.
Hence, I answer, Point Nos.1 to 3 in the affirmative
and Point Nos.4 & 5 in the negative.
31. Point Nos.6 & 7 : Learned counsel for the
appellant No.2 and 3 have sought for receipt of
additional documents and appellant No.2 has
produced certain documents along with G- tree and
payment of receipts, RTCs., and plaint in
O.S.No.391/1993 filed by one P. Gopal Rao who
subsequently withdrawn the vakalath and order
sheet which were available even before the trial
Court and they do not come within the purview of
Order 41, Rule 27 of C.P.C. No proper reasons are
assigned to the same. As far as production of
document under I.A.No.11 is concerned, they are
photographs showing performance of poojas etc. and
by mere photographs showing the poojas taken by
keeping idols are not sufficient unless they are done
properly and these documents will not help as
additional documents to substantiate the claim of the
appellants that performance are being done properly
and therefore, document produced under I.A.No.10
and 11 do not come within the purview of the Order
41 Rule 27 of C.P.C. and they cannot be received as

- 101 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

additional evidence which requires no consideration
by this Court at this stage.
32. As far as appointment of Commissioner is
concerned under I.A.No.12 is concerned, for the
purpose of knowing which property was sold etc.
cannot be considered at this stage and same should
have been filed before the trial Court and one thing
is clear that second defendant has sold the
properties and trial Court has rightly opined and
therefore, contention of the appellants cannot be
accepted that trial Court has committed wrong in
coming to the conclusion. Moreover, there are no
pleadings by the appellants and they have no locus-
standi to urge in the appeal therefore, application for
appointment of Commissioner is not maintainable
and I.A.11 for modification of orders on I.A.No.II
cannot be considered as Court has passed a right
order in appointing receiver. Hence I answer Point
Nos.6 & 7 in the negative.
33. POINT No.8 : In view of my answer to the
point Nos.1 to 7 as above, I proceed to pass the
following :
O R D E R
The appeal filed by the appellants is hereby
dismissed with costs.

- 102 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

The cross-objection is also dismissed.
The Judgment and Decree passed in O.S.
No.296/1994 on 28-06-2014 by the Prl. Civil Judge &
JMFC., Bantwal, is hereby confirmed. It is made clear
that orders on I.A.No.II under Order 41, Rule 1 of
C.P.C. for appointment of second appellant P.
Jagadish Rao as receiver holds good until proper
recourse is taken by the plaintiff No.2 before
executing Court. If the receiver fails to give account
as per the orders dated 12-07-2017 on I.A.No.II, the
plaintiff No.2 and his branch members are at liberty
to take possession of the properties and perform
viniyogas of deity by executing this Decree before
the trial Court. This direction is in addition to
direction given by the trial Court in its Judgment.
Plaintiff No.2 is also at liberty to execute the
Decree of the Trial Court for its proper compliance.
Draw decree accordingly.”
9. As can be seen from the aforesaid judgment and
decree passed by the first appellate court, except issuing
certain directions as regards appellant No.1/defendant
No.6 who had been appointed as the interim receiver for
the purpose of management of the subject deity/temple

- 103 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

and suit schedule properties, the entire judgment and
decree of the trial Court was confirmed by the first
appellate court.
10. Aggrieved by the impugned judgment and
decree passed by the trial Court and first appellate court,
the appellants, defendants No.6 to 13 are before this
court, by way of the present appeal and in the
memorandum of appeal, the following substantial question
of law is formulated/framed by the appellants:,
“SUBSTANTIAL QUESTION OF LAW
Whether the court below were justified in
decreeing the suit of the plaintiff in the absence
of prior permission/sanction in terms of Section
92 CPC, since the scheduled premises were
claimed to be a property of a charitable
institution.”

11. A perusal of the material on record, including the
pleadings of the parties and the judgment and decree of
the trial Court and first appellate Court, will clearly
indicate that the subject Trust is not created for public

- 104 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

purposes of a charitable or religious nature, so as to
attract the provisions contained in Section 92 of CPC; in
this context, it is well settled that where a trust comprises
of beneficiaries who are a fluctuating body of individuals
and performs duties/activities of a charitable or religious
nature and for the benefit of the public, the provisions of
Section 92 of CPC would get attracted and in the absence
of any material on record, to establish that the
beneficiaries of the subject family deity/temple and the
suit schedule properties comprises of the public at large or
a fluctuating body of individuals/persons, in addition to the
fact that there is no pleading in the plaint by the plaintiff
or any such contention taken by the defendant in the
written statement, I am of the considered opinion that the
subject trust/family deity cannot be construed,
characterized or described as a public trust of charitable or
religious nature attracting the provision contained in
Section 92 of CPC. Under these circumstances, I am of
the view that the contention of the appellate that the

- 105 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

Section 92 of CPC would apply to the facts and
circumstances of the present case cannot be accepted and
the said substantial question of law framed by the
appellant is hereby answered against the appellant.
12. Learned counsel for the appellant submits that
the appellant No.1 (defendant No.6) was not provided an
opportunity to put forth his defence either before the trial
Court or before the first appellate Court and adverse
findings are recorded against him by both the Courts,
which are contrary to the material on record, by the first
appellate Court, which would give rise to a substantial
question of law; in my considered opinion, a perusal of
the material on record comprising of the judgment and
decree of the trial Court, appellate court, pleadings,
evidence etc., will clearly indicate that the appellant
No.1/defendant No.6 has not filed any written statement,
nor adduced any oral or documentary evidence; in
addition thereto, the trial Court records a categorical
finding that the sale deed at Ex.P19 dated 13.09.1991, in

- 106 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

relation to property bearing No.60/1 belonged to the
family deity Sree Venkatramana Devru and the same had
been illegally sold by defendant No.2 along with his family
members, including the appellant defendant No.6 and no
attempt was made by the appellant/defendant No.6 or any
of the other appellants to either seek permission to file the
written statement nor adduce evidence before the first
appellate court.
13. Under these circumstances, it cannot be said
that no opportunity was provided to the appellant who did
not contest the suit and nor adduce any evidence, before
the trial court to contend for the first time before this court
that an opportunity was not given to them, to put forth
their defence nor contest the suit, especially having regard
to the undisputed fact that the suit is of the year 1994; at
any rate none of the appellants are senior most family
members of the senior most branch, so as to enable them
to claim a right to perform the pujas, ceremonies,
viniyogas etc. in relation to the family deity which is

- 107 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

subject matter of the suit. Accordingly, the said contention
urged by the learned counsel for the appellant that not
providing of an opportunity to the appellants to file the
written statement and contest the suit would give rise to a
substantial question of law, cannot be accepted, in the fact
and circumstances of the instant case and the said
contention is hereby rejected.
14. Insofar as the apprehension urged by the
learned counsel for the appellant that the impugned
judgment and decree of the trial court and first appellate
court would have the effect of completely taking away the
right of the appellants in the suit schedule properties and
the performance of viniyoga, rituals, ceremonies, poojas
etc., in relation to the family deity is concerned, at
paragraph No.30 of the judgment of the first appellate
court, it has been specifically noticed by the first appellate
court, that whether the second appellant can continue as a
trustee or not can be thrashed out in execution
proceedings; while doing so, the first appellate court took

- 108 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

into account the fact that it had earlier appointed the
appellant No.1 (defendant No.6) to perform the duties of a
interim receiver for the purpose of management of the
family deity and suit schedule properties and had
specifically directed appellant No.1 (defendant No.6) to
give accounts by issuing directions to the executing court
in this regard, as can be seen from the impugned
judgment and decree.
15. Under these circumstances, even this
apprehension urged on behalf of the appellant having been
adequately allayed and safeguarded by the first appellate
court, the question of interfering with the impugned
judgment and decree on this ground, would not arise in
the fact and circumstances of the incident case.
16. In view of the aforesaid factual circumstances, I
am of the considered opinion that the present appeal does
not give rise to any question of law, much less substantial

- 109 -
HC-KAR
NC: 2026:KHC:52643
RSA No. 2450 of 2018

CNR: KAHC010307542018

question of law, warranting interference by this Court, in
the present appeal.
17. The present appeal is accordingly dismissed . In
view of dismissal of the appeal, as devoid of merit at the
stage of admission, the present interlocutory applications
does not survive for consideration. Hence IAs are hereby
disposed of.

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
AKV
List No.: 1 Sl No.: 41