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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 28th day of March 2014
Before
The Hon’ble Mrs. Justice B.S. INDRAKALA
Regular First Appeal No.1713/2005 c/w RFA Crob.Nos.39/2005 & 2/2006
In R.F.A.No.1713/2005:
BETWEEN:
1. Sri C.R.Hiremath,
S/o Late Sri Rudraiah Hiremath, Aged about 71 years, R/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102. By his power of attorney holder Miss Sadhana Hiremath, Since deceased by his LRs.
a. Smt.Neelamma Hiremath, Aged about 63 years, W/o Late C.R.Hiremath.
b. Sri Mahesh Hiremath, Aged about 46 years, S/o Late C.R.Hiremath.
c. Smt.Manjula Hiremath, Aged about 42 years, D/o Late C.R.Hiremath.
d. Miss Sadhana Hiremath, Aged about 39 years, D/o Late C.R.Hiremath.
All are r/o 25th Ward, Raghavanka Swamy Mutt,
R
2
Fort, Bellary – 583 102.
2. Smt.Shivagangamma, Aged about 88 years, W/o Late Veerabhadraiah, R/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102.
Since deceased represented by Appellant Nos.1(a) to (d) & Appellant No.3 to 7. (as per court order dated 29.11.2012)
3. Sri M.V.Pandit,
Aged about 88 years, Husband of Late Prema,
Since deceased rep. by Appellant Nos.5 to 7 4. Sri Virendra M.Pandit,
Aged about 53 years,
Since deceased by his LRs. a) Smt.Veena Pandit, Aged about 50 years, W/o Late Virendra M.Pandit. b) Ms.Reena Pandit, Aged about 30 years. c) Ms.Beena Pandit, Aged about 28 years. b & c are daughter of Late Virendra M.Pandit. d) Anoop pandit,
Aged about 26 years, S/o Late Virendra M.Pandit. a to d r/at Kadolkar Galli, Belgam. (as per court order dated 19.12.2013)
3
5. Dr.Ashok,
Aged about 51 years.
6. Sri Ravindra M. Pandit, Aged about 49 years.
4 to 6 are the S/o M.V.Pandit. 7. Smt.Vidya,
Aged about 46 years, D/o Sri M.V.Pandit.
All appellants are rep. by their GPA holder Miss Sadhana Hiremath, Aged about 39 years, D/o Late Sri C.R.Hiremath, R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary – 583 102. ... Appellants
(By Sri S.Sudindranath, Advocate.) AND:
1. Sri Akkamahadevi Samaja,
A society registered under the Societies Registration Act, No.20, Kumara Park West,
Bangalore – 560 020, By its Secretary.
2. The President, Sri Akkamahadevi Samaja, No.20, Kumara Park West, Bangalore – 560 020.
3. The Anubhava Mantapa Trust, No.19, Reservoir Street, Kumara Park West, Bangalore – 560 020.
4. Sri Sri Sri Jagadguru Channa Basava Rajendra Swamigalu, Peethadhipathi of Uravakonda,
4
Ananthpur District, Andhra Pradesh, and at Bangalore Branch No.E/5, Girls School Street, Kumara Park West, Bangalore – 560 020.
5. The Deputy Commissioner, Andhra Pradesh Endowment Department,
Karnool, A.P. – 518 001. ... Respondents
(By Sri Yoganarasimhan, Senior Counsel for Ms.Deepashree, Advocate, Sri A.S.Mahadeva Swamy & Sri S.B.Totad,
Advocate for R-1 to 3; Sri H.R.Anantha Krishna Murthy, Advocate for R-4; Sri C.Lakshminarayana Rao, Advocate for C/R-5.)
This Regular First Appeal filed under Section 96 read
with O XLI of CPC against the judgment and decree dated 09.09.2005 passed in O.S.No.8150/2002 on the file of the Prl. City Civil and Session Judge, Bangalore dismissing the suit for declaration.
IN R.F.A.CROB.No.39/2005:
BETWEEN:
The Deputy Commissioner, Andhra Pradesh Endowment Department, Karnool, A.P.
…Cross Objector
(By Sri C.Lakshminarayana Rao, Advocate.) AND:
1. Sri C.R.Hiremath,
S/o Late Sri Rudraiah Hiremath, Aged about 71 years, R/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102. By his power of attorney holder Miss Sadhana Hiremath, Since deceased by his LRs.
5
a. Smt.Neelamma Hiremath,
Aged about 63 years, W/o Late C.R.Hiremath.
b. Sri Mahesh Hiremath, Aged about 46 years, S/o Late C.R.Hiremath.
c. Smt.Manjula Hiremath, Aged about 42 years, D/o Late C.R.Hiremath.
d. Miss Sadhana Hiremath, Aged about 39 years, D/o Late C.R.Hiremath.
All are r/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102.
2. Smt.Shivagangamma, Aged about 88 years, W/o Late Veerabhadraiah, R/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102.
Since deceased rep. by Respondent Nos.(a) to (d) of Respondent No.1 & 2 to 7. (as per court order dated 29.11.2012)
3. Sri M.V.Pandit,
Aged about 88 years, Husband of Late Smt.Prema,
4. Sri Virendra M.Pandit, Aged about 53 years,
5. Dr.Ashok, Aged about 51 years.
6
6. Sri Ravindra M. Pandit, Aged about 49 years.
Sl.No.4 to 6 are S/o Sri M.V.Pandit. 7. Smt.Vidya,
Aged about 46 years, D/o Sri M.V.Pandit. Sl.No.3 to 7 are r/at Kadolkar Galli, Belgam.
All Respondents i.e., Sl.No.1 to 7 are rep. by their GPA holder Miss Sadhana Hiremath, Aged about 39 years, D/o Late Sri C.R.Hiremath, R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary – 583 102. (Respondent Nos.3 to 7 are LRs of Respondent No.2 as per court order dated 29.11.2012.) 8. Sri Akkamahadevi Samaja,
A society registered under the Societies Registration Act, No.20, Kumara Park West,
Bangalore – 560 020, By its Secretary.
9. The President, Sri Akkamahadevi Samaja, No.20, Kumara Park West, Bangalore – 560 020.
10. The Anubhava Mantapa Trust, No.19, Reservoir Street, Kumara Park West, Bangalore – 560 020.
11. Sri Sri Sri Jagadguru Channa Basava Rajendra Swamigalu, Peethadhipathi of Uravakonda,
Ananthpur District, Andhra Pradesh, and at Bangalore Branch No.E/5, Girls School Street, Kumara Park West,
7
Bangalore – 560 020. ... Respondents
(By Sri H.R.Anantha Krishna Murthy, Advocate for R-1; Sri Sudindranath, Advocate for R-1(a to d) & R-3 to 11 (VK
not filed); Sri Sudindranath, Advocate for R-2.)
This RFA Cross Objection in RFA No.1713/2005 filed under Order 41 R 22 of CPC against the judgment and decree dated 09.09.2005 passed in O.S.No.8150/2002 on the file of the Prl. City Civil and Session Judge, Bangalore, in so far as negatively answering Issue No.12.
IN R.F.A.CROB.No.2/2006:
BETWEEN:
1. Akkamahadevi Samaja,
A society registered under the Societies Registration Act, No.20, Kumara Park West,
Bangalore – 560 020, By its Secretary.
2. The President, Akkamahadevi Samaja, No.20, Kumara Park West, Bangalore – 560 020.
3. The Anubhava Mantapa Trust, No.19, Reservoir Street, Kumara Park West, Bangalore – 560 020, By its Secretary M.Sivappa, Advcoate, Bangalore.
…Cross Objectors
(By Sri Yoganarasimhan, Senior Counsel for Ms.Deepashree, Advocate.)
AND:
1. Sri C.R.Hiremath,
Since dead by his LRs.
8
a. Smt.Neelamma Hiremath, Aged about 63 years, W/o Late C.R.Hiremath.
b. Sri Mahesh Hiremath, Aged about 46 years, S/o Late C.R.Hiremath.
c. Smt.Manjula Hiremath, Aged about 42 years, D/o Late C.R.Hiremath.
d. Miss Sadhana Hiremath, Aged about 39 years, D/o Late C.R.Hiremath.
All are r/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102.
2. Smt.Shivagangamma, Aged about 88 years, W/o Late Veerabhadraiah, R/o 25th Ward, Raghavanka Swamy Mutt, Fort, Bellary – 583 102.
Since dead by her LRs Respondent Nos.1(a) to (d) and Respondent No.3 to 7. (as per court order dated 29.11.2012)
3. Sri M.V.Pandit,
Aged about 88 years, Husband of Late Smt.Prema,
4. Sri Virendra M.Pandit, Aged about 53 years,
5. Dr.Ashok, Aged about 51 years.
6. Sri Ravindra M. Pandit, Aged about 49 years.
9
4 to 6 are S/o Sri M.V.Pandit. 7. Smt.Vidya,
Aged about 46 years, D/o Sri M.V.Pandit. 3 to 7 are r/at Kadolkar Galli, Belgam.
All respondents are rep. by their GPA holder Miss Sadhana Hiremath, Aged about 39 years, D/o Late Sri C.R.Hiremath, R/o 25th Ward, Raghavanka Swamy Mutt,
Fort, Bellary – 583 102. 8. Sri Sri Sri Jagadguru Channa Basava
Rajendra Swamigalu Pethadhipathi of Uravakonda Gavimath Samsthan, Uravakonda Ananthpur District, Andhra Pradesh – 515 001.
9. The Deputy Commissioner Andhra Pradesh Endowment Department Kurnool, Andhra Pradesh – 518 001.
... Respondents
(By Sri Sudindranath, Advocate for R-1(a – d) & R-3 to 9 (VK not filed); R-2 is dead by his LRs are R-1(a – d) & R-3 to 7 vide order dated 29.11.2012; Sri H.R.Ananth Krishna
Murthy, Advocate for R-8.)
This RFA Cross Objection in RFA No.1713/2005 filed under Order 41 R 22 of CPC against the judgment and decree dated 09.09.2005 passed in O.S.No.8150/2002 on the file of the Prl. City Civil and Session Judge, Bangalore, in so far as negatively answering Issue Nos.6, 7, 8, 9 and 12.
This appeal and cross objections being reserved is
coming on for this day, the Court delivered the following:
10
J U D G M E N T
The above appeal is preferred against the
judgment and decree dated 09.09.2005 passed in
O.S.No.8150/2002 on the file of the Principal City Civil
and Sessions Judge, Bangalore.
2. For the sake of convenience, the parties herein
are referred to by their respective rank as arrayed before
the court below – appellants as plaintiffs and
respondents as defendants.
3. Originally one C.R.Hiremath the plaintiff
represented by his Power of Attorney Holder, filed the
said suit seeking declaration that he is the owner of the
property mentioned in the schedule to the plaint and to
put to use the said property for the purpose for which it
was allotted to His Holiness Jagadguru Urvakonda
Karibasava Rajendra Swamy and further declaration is
also sought to declare that all or any transaction,
dealing, entered into or carried on by the defendants
and any charge whatsoever created by them on the suit
11
schedule property or any portion thereof as illegal,
ineffective and the same does not exist in the eye of law.
Further, during the pendency of the suit, the said
plaintiff expired and his legal representatives are
brought on record.
4. Subsequently, apart from the L.Rs., who are
brought on record as plaintiff Nos. 1(a) to (d), plaintiff
Nos.2 to 7 were impleaded as per the order dated
03.08.2005 passed on I.A.X filed in the said suit.
5. It is the case of the plaintiffs that the 1st
plaintiff was the younger brother of His Holiness
Jagadguru Urvakonda Karibasa Rajendra Swamy (for
short hereinafter referred to as Rajendra Swamy) who
passed away on 27.12.1991. It is further alleged by the
plaintiff that his brother Rajendra Swamy right from his
boyhood was dedicated to social work with spiritual
inspiration, who acitively participated in the Karnataka
Ekikarana Movement; in appreciation of such
commitment, the then Government of Mysore allotted
12
the site measuring 112.1’ + 158’/2 x 168 situate at
Kumara Park West, Bangalore lying to the South of
Reservoir (Park Area), Kumara Park West Extension
Block as indicated in the plan vide allotment letter
dated 19.11.1952. Further it is contended that the said
allotment was subject to certain conditions as
stipulated therein and the possession was also handed
over to him vide Possession Certificate dated
21.11.1952 issued by the then City Improvement Trust
Board (Now Bangalore Development Authority) produced
and got marked as Ex.P.3. It is further alleged that
subsequently the Bangalore Development Authority also
executed a sale deed in favour of the said Rajendra
Swamy vide sale deed dated 29.10.1988. It is
specifically alleged by the plaintiff that it came to his
knowledge about such allotment and execution of the
sale deed in favour of his brother Rajendra Swamy only
on 12.8.2002. It is contended further that the originals
of the said documents must be in possession of one Mr.
13
Gangadhar Gurumath, an advocate who is hostile to the
plaintiff.
6. It is further alleged that the said Rajendra
Swamy resided in the schedule property till his last
breath and at the fag end of his life, he was not enjoying
good health on account of various ailments; he had
many disciples including workers, driver, cook and
others to take care of him, who were also greatly
benefited and therefore, plaintiff used to visit Swamiji
periodically, but, remained permanently at Bellary; the
said one Mr. Gangadhar Gurumutt, advocate, who was
one of the disciple of Swamiji took undue advantage of
Swamiji’s ill health and acted adversely to put the
schedule property in litigation. It is alleged further by
the plaintiff that the said Gangadhar Gurumath under
the guise of getting scheme constituted, set up his own
persons to file O.S.No. 962/1991; as on the date of filing
of the present suit, O.S.No.962/1991 was still pending
disposal on the file of the Principal Civil Judge,
Bangalore. Further it is alleged that on coming to know
14
of the pendency of the said suit, the plaintiff herein got
himself impleaded as defendant No.11 in the said suit.;
as the plaintiff stayed at Bellary, he was unable to get
further details in the said suit and he came to know
that a receiver was appointed by the Hon’ble Court in
the said O.S.No. 962/1991.
7. The plaintiff further contended that though he
is not having any desire or liking to amass any wealth,
he determined to cherish the dreams of his brother and
put the schedule property for exclusive use for which it
was allotted by the then City Improvement Trust Board.
8. It is alleged further that the daughter of the
plaintiff by name Miss. Sadhana Hiremath who has
remained as Spinster, dedicated her life to social work
and also agreed to fully dedicate herself in the pursuit of
putting the schedule property for the maximum benefit
of the public at large and cherish the ambition of the
first plaintiff and her uncle. In pursuance of which she
started collecting the documents like encumbrance
15
Certificate for 50 years, Allotment letter dated
19.11.1952, Trust Deed of Anubhav Mantap Trust,
dated 12.10.1955, Sale Deed dated 29.10.1988 and the
entire order sheets in O.S.NO. 962/1991, Report of the
Receiver in the said suit and Assessment Extracts in
respect of the schedule property from the Bangalore City
Corporation; on collection of such documents, it was
revealed in the Encumbrance Certificate that the sale
deed was executed on 29.10.1988 by the Bangalore
Development Authority in favour of the brother of the
deceased plaintiff. The plaintiff specifically alleged in
the plaint that the allottee in the sale deed is described
as executed in favour of Sri. His Holiness Jagadguru
Urvakonda Karibasava Rajendra Swami, aged about 65
years residing at No.B-5, Kumara Park West, (Reservoir
Water Town) Bangalore-20 and thus the said property
was allotted and sale deed was executed exclusively in
favour of the elder brother of the plaintiff with certain
conditions and after the death of his brother, the
property devolved upon the plaintiff as per Section 8
16
Entry-II (Clause II of the Schedule) to the Hindu
Succession Act as the plaintiff was the only surviving
successor to the said allottee. Further it is contended
that the plaintiff No.2, who is the sister of the allottee
and plaintiff Nos. 3 to 7, who are the heirs of another
sister are entitled for the said suit schedule property
and they have also furnished genealogical tree of the
family of the said allottee.
9. It is alleged that the 1st defendant represented
by its President, was nominated as one of the trustee in
the 3rd defendant trust, and the said trust was formed
by the said allottee, under the Trust Deed dated
12.10.1955 and the said Trust Deed was subsequently
cancelled by the Registered Deed of Cancellation dated
29.7.1981. It is categorically stated in the said
Cancellation Deed that the Trust Deed was void for the
reason that since the registration of the document in
the year 1955 for about 26 years, the Board of Trustees
did not function, it did not construct any building as
per the plan approved by the Trust Board and the
17
Government Architect as per the conditions of the grant
much less the Religious and Cultural activities were
carried out. Further it is contended that Trustees- 2
and 4 viz., A.C. Shanthamalle Gowda, Sri Ramaiah and
Sri H. Puttaswamy expired and New Trustees were not
co-opted after their death, nor any approval was
obtained as required under the condition of the deed of
trust either orally or in writing, in the result there is no
fully constituted Board. It is further contended that
under the said Trust Deed, the Board of Trustees are
required to submit each year the audited statement of
accounts of “The Anubhava Mantapa Trust’ and no such
statements were ever been made or brought to Swamiji’s
notice since the execution of the Trust Deed; On the
other hand, the Swamiji himself constructed the
building for the religious and social activities and also
constructed building for the use of his disciples out of
the donations and free gifts given to him by his
disciples. It is specifically contended in the said
Cancellation Deed that the 3rd defendant never came
18
into existence nor did it function as required by the
terms and conditions of the Trust Deed.
10. It is further alleged by the plaintiff that the
Khatha of the Property was registered in the name of the
said Rajendra Swamiji, taxes were fixed as per the
special notice dated 03.02.1988 issued by the
Corporation Authorities and the said late Rajendra
Swamiji remained in the said property without any
hindrance by any person, much less by the defendants
till his death. It is further contended that in view of the
execution of the sale deed in the year 1988 by the
Bangalore Development Authority in favour of Swamiji,
the Trust Deed dated 12.10.1955 is of no consequence
and the said Trust Deed is nullity in the eye of law.
Further it is alleged that even though the 3rd defendant
is a non entity and does not exist, the 3rd defendant is
made as a party in the suit as group of most influential
persons under the guise of the said trust/defendant are
falsely representing the 3rd defendant and it is
necessary, just and expedient to declare all their acts,
19
deeds and things done by them under the guise of 3rd
defendant as null and void. It is further alleged that the
1st defendant is a society registered under the Societies
Registration Act; the 2nd defendant is its President and
in the Trust Deed dated 12.10.1955, the President of
the 1st defendant was nominated as one of the Trustee,
while the Trust was cancelled, it was a non entity in the
eye of law and the question of 2nd defendant
representing the 1st defendant in respect of any of the
affairs of the suit schedule property does not arise and
as such, any interference caused by the 1st and 2nd
defendant concerning the schedule property is illegal,
null and void. It is further contended that even during
the life time of the said allottee, the 1st defendant, which
is supposed to be a Lingayath community institution
was permitted to use a small portion of the suit property
for any other functions or events beneficial to the public
and neither the 1st defendant nor the 2nd defendant can
have any right, title or interest over the schedule
property or any portion of the schedule property while
20
the Bangalore Development Authority executed the sale
deed in favour of the allottee. Further it is alleged that
as the matter stood thus, the 1st defendant got the
Khatha in respect of a portion of the suit schedule
property registered in its name illegally and the
Bangalore City Corporation has given two municipal
numbers to the schedule property as 19-20 and 20-19
in respect of suit property and the said numbers are
registered now in the names of 3rd and 1st defendants
respectively. The plaintiff got issued notices to the
Corporation for immediate cancellation of khatha and
the notices were also sent to the 1st defendant both
under the Registered Post and under Certificate of
Posting on 24.09.2002.
11. It is specifically alleged by the plaintiff that
after obtaining the municipal records with regard to
municipal numbers 20-19 in the name of 1st defendant,
the plaintiff also obtained encumbrance certificate for
50 years from 01.04.1952 to 17.09.2002 and no
transaction is noticed in the name of the 1st defendant
21
and in any event, they are of no consequence as the sale
deed was executed by the Bangalore Development
Authority in the name of the said Rajendra
Swamiji/grantee. It is further contended by the plaintiff
that the suit property, has been in occupation of the
tenants and as on the death of the Swamiji i.e., as on
27.12.1991; he was in constructive possession of the
suit property and appointment of the Court Receiver
does not in any way change the basic legal position of
the suit property, as what is taken over by the Court
Receiver is the constructive possession, as an agent of
the True Owner.
12. Further it is contended that on the death of
the said Rajendra Swamiji on 27.12.1991, the plaintiffs
also got constructive possession of the suit property and
none else other than the plaintiffs hold the constructive
possession of the schedule property as he is the true
owner of the schedule property. Hence, the plaintiffs
restrict their prayer to declaration only, in their favour
22
without any consequential relief. Thus they sought
decreeing of the suit as prayed for.
13. In the written statement filed by defendant
Nos.1 and 2 viz., Akkamahadevi Samaj and its
President, it is specifically pleaded that the expression
“Swamiji” does not convey any sense or meaning and
they have denied the contentions of the plaintiff that the
said Swamiji was the front runner in the Social Service
and was playing a pivotal role in Karnataka Ekikarana
Movement. It is specifically pleaded that the allotment
of the property was not for the personal use of the
Swamiji, but, the same was in trust, in favour of
Urvakonda Mutt Swamiji and the allotment was subject
to the condition that the property was to be used for
specified and general public purpose and thus the
Swamiji was charged with responsibility of using the
same for public purposes and in substance, the
property was allotted to the public through the
instrumentality of the Swamiji and thus the public trust
was created by the State itself subject to of course, to
23
prevailing laws; Swamiji had no personal right or
interest over the property. The registered agreement
and possession certificate referred to in the plaint was
the formality to be observed by the CITB and in
substance it was sub-ordinate to Government decision
to allot, which culminated in the sale deed executed by
the BDA in favour of the Swamiji. As such the schedule
property was never owned by the Swamiji in the real
sense, but, was held by the Swamiji in his name in
Trust and as such subsequent execution of a formal
Sale Deed in the name of the Swamiji, neither enlarged
nor abridged the vested rights of the Trust nor did it
revoke or enlarge that of the Swamiji.
14. It is specifically pleaded that in the execution
of the Sale Deed is operational subject to the Trust
created; otherwise it is illegal and invalid and the Sale
Deed of the year 1988, is to be read as being
subordinate to the earlier transfers. They have also
denied with regard to the role of Sri Gangadhar
Gurumuth in the affairs of the original Swamiji. Thus
24
while denying the contentions of the plaintiff’s with
regard to the allotment of the property in the individual
name of the said Swamiji, it is further pleaded that the
allegations with regard to the filing and pendency of the
Original Suit 962/1991 and under Section 92 of the
Code of Civil Procedure are all per se irrelevant in the
suit and the same are denied.
15. It is specifically pleaded by defendant Nos.1
and 2, that the claim of the plaintiff to claim the
property is a dishonest and is a fraud on the public; the
defendants do not admit and deny that the plaintiff had
anything to do with the deceased Swamiji at any
relevant point of time. The object and purpose of the
grant determines the nature of grant and the
description of the parties or their nomenclature did not
determine the object to be achieved; the then Swamiji’s
successors, if any, are successors in the office or
otherwise regulated by him as an unattached person.
The Swamiji’s status as a disentangled ascetic and
assuming and adopting of the order of sanyasi as long
25
back, dissociated with his original family bonds to the
knowledge of all and more particularly the plaintiff. It is
further contended that the very status of being the
Swamiji as a sanyasi was renouncement of all worldly
and material bondage for the Swamiji; Swamiji belonged
to the society and society is the successor to Swamiji
and beneficiary of Swamiji’s deeds; and the entire claim
and reasons propounded by the plaintiff is fallacious
and misleading. It is specifically denied the contention
that the plaintiff is the legal heir of the deceased
Swamiji in preference to Mutt and public at large and
his dishonest claim to public property is denied. It is
also pleaded that the Swamiji in so far as Poorvashrama
is concerned has snapped all his bondage and had a
civil death socially and a spiritual rebirth; it was also in
that latter capacity that the plaint schedule property
was entrusted to him as a Trustee charged with
responsibility also; the responsibility was sought to be
discharged by him by bringing into existence the 3rd
defendant under a registered deed retaining him a right
26
to nominate one trustee, the other being outsiders; that
transition of power and obligations have been noticed
accepted and acted upon for decades and the Swamiji
had no right of revocation of the trust nor to recall any
of the powers; Infact, it was a legally competent and
proper form of discharging his obligations; it was
managerial in nature too; thus the Anubhava Mantapa
Trust/the 3rd defendant was lawfully constituted and is
functioning as well for over several decades. It is
further pleaded that unsuccessful attempts of late
Swamiji to have the 3rd defendant dissolved in judicial
proceedings O.S.No.266/1974 and O.S.No.4012/1985
establishes the fact that the 3rd defendant has come to
stay and confirmation of Swamiji’s lacking of power to
deal with the 3rd defendant; in law, he was incapable of
neutralizing the 3rd defendant; the trust deed has been
thus alive, vibrant potential document. Further it is
pleaded that the suit is regulated by the decisions in
those suits and this suit is barred by resjudicata. It is
also contended that in view of the dismissal of suit in
27
O.S.Nos.160/1974 on 16.09.1975 and
O.S.No.4012/1985 on 12.02.1990, the right of the
defendant in the suit is clearly established and suit is
barred by principles of resjudicata. Further it is
pleaded that the purported cancellation deed dated
27.07.1981 has no legal effect at all on the Trust deed of
12.10.1955, which withstood the test for over 25 years.
With regard to the holding of the khatha of the property
in one or two names, bifurcation thereof by the
Municipal Corporation on its needs, etc., are not
germane at all in these proceedings in as much as being
public religious charitable properties, the ultimate, will
be free from eligibility of tax. This position was in
existence even to the knowledge to the late Swamiji, who
deliberately allowed it achieve the objectives of the
Trust.
16. Further it is pleaded that the standing of the
Khata is only for the benefit of the Trust and not for
individual and in any event, the plaintiff has no right to
question the same not in these proceedings either. It is
28
specifically pleaded that having allowed it to happen for
over decades, the plaintiff is not entitled to question
them after this length of time and the acquiescence of
late Swamiji.
17. It is further pleaded with regard to the
allegations that the defendants are misusing and
interrupting with the property that these defendants do
not claim the property for their own use, but, holds the
same in Trust for public purpose, characterizing
possession of occupants as adverse to this defendant or
in favour of the Swamiji or plaintiff is untenable. Infact
certain elements using their status and nearness to the
Swamiji are trying to create havoc, which will be dealt
with by the 3rd defendant suitably once the ligitgation in
O.S.No.962/1991 is terminated.
18. It is further contended that the sale deed
dated 29.10.1988 alone will not determine the rights of
the Swamiji or these defendants; the same is subject to
a superior law which enures to the benefit of the trust
29
and nothing more. It is further pleaded that the
Sanyasi has no blood relative heir; his successor is the
order or the institution he belongs to; after becoming
the Sanyasi, the plaintiff claiming in this behalf is
woefully selfish, self created and is fraudulent. Infact
Jagadguru, Uravakonda Mutt of Andhra Pradesh and its
local unit are in existence ruled by the current Swamiji
and without impleading him, this suit having been filed
is fatal.
19. Further it is pleaded that the 3rd defendant
(Trust) by its resolution dated 24.09.1959 made over to
the 1st defendant, a portion of the suit schedule
property i.e., measuring 50’ x 80’ to carry on its
acitivities. This was approved by the CITB and has
become final. It is also pleaded that Kumara Park West
extension was subsequently transferred by the State
Government from the jurisdiction of CITB to the
Corporation of the City of Bangalore, which issued an
endorsement bearing No.B5PR197/69-70 dated
10.08.1970 and the said site measuring 50’ x 80’ made
30
over to the 1st defendant was exempted from property
tax.
20. It is further pleaded that the Bangalore
Mahanagara Palike/Corporation of the City issued a
certificate bearing No.BA 274 12/98-99 dated
16.10.1998 to the effect that the Khata of the said site
measuring 50’ x 80’ granted to the 1st defendant and
also issued an endorsement dated 10.08.1970
exempting 1st defendant from payment of property tax
with effect from1.4.1966. It is also contended that if the
BDA executed the sale deed in respect of the suit site in
favour of the late Swamiji, that sale deed has no legal
effect, because, the CITB and the BDA have ceased to
have jurisdiction over Kumara Park West Extension by
then.
21. It is pleaded that the suit property belonging
to the trust was not valued properly as the market value
of the property is about Rs.2,50,00,000/- and the Court
fee payable is Rs.3,20,000/- but, the valuation valued is
31
woefully inadequate and dishonest and he has to pay
the requisite Court Fee on the market value of the
property; but, for mere declaration is not maintainable,
untenable and is liable to be dismissed in limine and
the prayer sought is not grantable and even otherwise
the defendants have perfected the title against any
individuals. As such, the suit as prayed is barred by
limitation and sought dismissal of the suit.
22. Defendant No.3 (The Anubhava Mantapa
Trust) in its statement of objections has denied the
allegations of the plaintiff’s on all material aspects as
pleaded by defendant Nos. 1 and 2 and has specifically
pleaded with regard to its right over the property that
the trust deed dated 12.10.1955 was never revocable
nor was any such power ever residuary or specifically
retained. That very plea and purported abortive attempt
on the part of the Swamiji itself is indicative of the
stability of Swamiji’s mind at that point of time and the
control of his satellites over him and the selfishness of
such surrounding persons. Further unsuccessful
32
attempt on the part of the Swamiji to have this
defendant dissolved in judicial proceedings in
O.S.Nos.266/1974 and 4012/1985 establishes the fact
that this defendant has come to stay and confirmation
of Swamiji’s lacking of power to deal with this
defendant. In law, he was incapable of neutralizing this
defendant. The trust deed has been thus live, vibrant
potential document. The suit is also barred by
principles of resjudicata in view of the dismissal of suits
– O.S.Nos.260/1974 on 16.09.1975 and 4012/1985 on
12.02.1990. Thus even the 3rd defendant trust while
corroborating the written statement filed by 1st and 2nd
defendant has specifically pleaded that the trust is
never cancelled, it still exists, functions and carries out
the objectives of the trust as contemplated under the
terms and conditions of the Trust Deed and the Swamiji
had no power to cancel the trust. It is pleaded that
after creation of the trust, the trust had constructed its
building in the schedule property and the same are let
out to the tenants except the portion made over to the
33
1st defendant which was approved by the CITB. It is
also pleaded by the 3rd defendant that the suit is not
valued property; Court fee paid is insufficient and seeks
disposal of the suit.
23. In the written statement filed by defendant
No.4 – Sri Sri Jagadguru Channa Basava Rajendra
Swamigalu, Peethadipathi of Uravakonda-Gavimath
Samstan, Uravakonda, Ananthapur District, it is
pleaded that the plaintiff was the brother of one
Veeraiah before the latter became the Sanyasi and
joined the religious order. After Veeraiah became
Sanyasi, it is deemed to be in law, civil death to him or
such person severing all earthly connections with his
natural family. The said Veeriah after Sanyas is given
the name His Holiness Jagadguru Sri Karibasava
Rajendraswamy. Later he succeeded as the Seventh
Peethadhipathi of Gavimuth Samstan, Uravakonda and
it is admitted that he expired on 27.12.1991 at
Bangalore, Branch of Gavimuth Samstan. It is also
pleaded admitting that the documents referred to in
34
para-3 of the plaint with regard to the documents
referred to therein are admitted subject to proof and the
rest of the averments are not to the knowledge of this
defendant and the plaintiff is put to strict proof thereof.
24. With regard to allegations made against
Gangadhar Gurumath, it is pleaded that the same has
not come to his knowledge and with regard to pendency
of O.S.No.962/1991 it is stated that it is a matter
which is subjudice and the same is pending disposal; it
is neither denied nor admitted the said pendency of the
suit. It is specifically pleaded that the extract of the
preamble of the Sale Deed dated 29.10.1988 is wrongly
shown as Sri H.H.Jagadguru Uravakonda Karibasava
Rajendra Swamy and purposely/intentionally omitted
‘of’ to be prefixed to Uravakonda only to make it believe,
the Swamiji is independent of Uravakonda Muth of
which he was the Peetadhipathi recognized by the
Endowment Department, Government of Andhra
Pradesh. It is specifically pleaded that on the facts of
the instant case, the provisions of the Hindu Succession
35
Act is not applicable; the Genealogical details mentioned
at para-6 by the plaint omitting the descendants of the
first and second sons of Rudraiah – Hiremath, not
furnishing the details of the daughters of the said
Rudraiah Hiremath, are significantly omitted and it is
also pleaded that the first son of the deceased –
Rachaiah Hiremath has left behind 6 sons; it is further
pleaded by the 4th defendant that admitting about the
execution of the Trust Deed and also its cancellation by
the Swamiji has denied the constructive possession of
the plaintiff in his individual capacity. It is further
pleaded that there is no cause of action for the suit and
the Court fee paid is not correct and it is specifically
contended by the 4th defendant that there was vacancy
of the office of Matadhipathi of Gavimuth Samsthan,
Uravakonda, on the death of the 7th Matadhipathi H.H.
Jagadguru of Urvakonda Sri Karibasava Rajendra
Swamy on 27.12.1991 at Bangalore. By an order of the
Commissioner, Endowment Department, Andhra
Pradesh Government, Hyderabad bearing
36
No.R.C.No.CI/6690/91-92 dated 28.12.1991, the 5th
defendant herein was appointed as Administrator to
Gavimuth Samsthan Uravakonda and its branches in
Karnataka and Andhra Pradesh. Likewise, he took
possession of the suit property at Bangalore after
making an inventory.
25. The 4th defendant was nominated as
Successor to the deceased Swamiji on 21.03.1992 by its
order G.O.MS.309 issued by the Government of Andhra
Pradesh. Further the Commissioner of Endowments,
Hyderabad in pursuance of the order dated 31.07.1992
in W.P.M.P.No.11794/1992 and W.P.No.5720/1992
passed by the High Court of Andhra Pradesh and after
conducting enquiry permitted the 4th defendant by its
order bearing No.ROCI 66804/1991 dated 10.08.1992
to perform religious and spiritual functions of the Math.
26. It is further pleaded that under Section 53(1)
and (2) of the Andhra Pradesh Act, the Endowment
Commissioner of Andhra Pradesh passed an order on
37
16.06.1997 appointing this interim Mathadhipathi as
permanent Peetadhipathi of Gavi Math Samsthan
Uravakonda including its Branches in Karnataka and
Andhra Pradesh and he took charge of the office on
23.06.1997 and in that capacity, he is continuing even
to this day and as such, has sought dismissal of the
suit.
27. The 5th defendant in the suit viz., Deputy
Commissioner of Andhra Pradesh Endowment
Department in his statement of objections while denying
the case of the plaintiff’s in toto pleaded that the ancient
Gavimutt of Urvakonda in Ananthapur District is
governed by the Andhra Pradesh Charitable and Hindu
Religious Institutions and Endorwment Act, 1987 and
this Mutt has various ‘Branch Mutts’ and one of them is
the Shakha Mutt situated at Kumara Park Extension,
Bangalore. It is further pleaded that the main
Uravakonda Mutt is having Presiding Deity Sri Chandra
Mouleshwara Swamy and having vast properties both
moveable and immoveable and the secular
38
administration of Urvakonda Mutt is being carried out
by the Andhra Pradesh Endowment through its
Assistant Commissioner (Manager) is stationed at
Uravakonda.
28. It is further pleaded that earlier
Mathadhipathi Jagadguru Sri Karibasava Rajendra
Swamiji of Uravakonda Gavimuth, after a brief spell of
physical aliment attained Samadhi on 27.12.2001 On
the very next day of the leaving the mortal soil by the
said “Sri Jagadguru Karibasava Rejendra Swamiji, i.e.,
on 28.12.1991, the Andhra Pradesh Government
through its Endowment Department appointed Sri
Narayanappa, Deputy Commissioner (Endowments) of
Kurnool as the Administrator of the Gavimutt
Samsthan, Uravakonda.
29. It is further pleaded that on 21.03.1992 by its
order G.C.M.S.309, the Government of Andhra Pradesh
appointed Sri Channabasava Swamy (Defendant No.4)
of Tumkur Branch Mutt as the interim Matadhipathi of
39
Gavimutt to look after the spiritual and religious
functions of the Main Mutt excluding the secular
administration. Further the Commissioner of Andhra
Pradesh Devadaya Shaka stationed at Hyderabad in
pursuance of the order dated 31.07.1992 passed in
W.P.M.P.11794/1992 and W.P.No.5720/1992 by the
Hon’ble Andhra Pradesh High Court conducting equity
and hearing the Counsel of both parties permitted
Tumkur Branch Mutt Swamiji, Sri Channabasava
Swami by his order R.O.No.CI/66804/91 dated
10.08.1992 to perform religious and spiritual functions
of the Gavi Mutt.
30. It is further pleaded that acting under Section
53, 54(1) and (2) of Andhra Pradesh Charitable and
Hindu Religious Institutions Endowment, the
Commissioner for Endowment Government of Andhra
Pradesh passed an order and 16.06.1997 appointing the
interim Mathadhipathi Sri. Channabasava Swamy of
Tumkur Branch Mutt as permanent Peethadhipathi of
Gavimutt Samsthan at Uravakonda and thereafterwards
40
the Swamiji named as Jagadguru Sri Channabasava
Rajendra Swamiji took charge on 23.06.1997 at 9.45
a.m. and continued even to this day.
31. Further it is pleaded that the 5th defendant
entered appearance in O.S.No.962/1991 proceedings
while he was appointed as administrator due to vacancy
of Gadi of Matadhipathi of Gavimutt. At that point of
time Deputy Commissioner (Endowment) was one
Sri Narayanappa who later died and in his place later
the fourth defendant office is occupied by Sri S.S.Prasad
Reddy.
32. It is specifically contended by the 5th
defendant that the Branch Mutt of Uravakonda at
Bangalore, which is the subject matter of dispute, now
under the control and Management of successor to the
late Jagadguru Sri Karibasava Rajendra Swamiji and
successor, where in Government of Andhra Pradesh
recognized Peethadhipathi of main Mutt at Uravakonda,
Jagadguru Sri Channabasava Rajendra Swamiji i.e.
41
defendant No.4 and that all the controversies have been
laid at rest resulting in permanent legally accepted
successor to the deceased first defendant Jagadguru Sri
Karibasava Rajendra Swamiji i.e., 7th Peethadhipathi.
(First Defendant in O.S.No.962/1991).
33. With regard to allotment of property, it is
specifically pleaded that, present Uravakonda and its
neighbourhood was a part of the Mysore territory and
Rulers of Mysore have granted huge plots of valuable
lands for the use of Gavimutt of Uravakonda; the
traditions of the princely kingdom of Mysore even after
Re-organization of States after independence and
consequently having lost the Rulership and when the
erstwhile Mysore was under the democratic set up, the
Rev.Chief Minister in 1952, Sri K.Hanumathaiah was
moved by the tremendous upsurge and pulsating
ambition to spread the knowledge of spiritualism and
having outlook and rational thinking, said
K.Hanumanthaiah was responsible to pass the
Government Order granting the big space of land
42
situated in the heart of the Bangalore City at Kumara
Park Extension measuring 112+158/2 X 168 Sqft.
with certain conditions vide grant order dated
25.06.1952.
34. It is also contended that this defendant is
thrusting to restore back the schedule property at
Bangalore in consonance with the terms of grant in the
sale deed. This defendant is officially aware of the fact
that any violation of the terms of the grant would entail
for forfeiture of the building and structure put on the
leased property without any compensation paid thereof.
It is pleaded for that, it shall not be allowed to be done
and this defendant certainly and positively take all the
steps to restore back the pristine glory of this illustrious
Muth at Bangalore and pave way for insemination of
knowledge and religion and spiritualism to reach the
common man and thus fulfill the objects as envisioned
at the time of grant between the H.H.Jagadguru Sri
Karivasava Rajendra Swamigalu and Hon’ble Chief
Minister of Mysore Late Sri K.Hanumanthaiah.
43
35. It is further submitted by this defendant that
the above suit filed is a speculative Suit and colluding
with the defendants 1 to 3 to knock off the valuable
property covered under the Suit Schedule, with the
knowledge that it belongs absolutely to the Gavimath
Samsthan, Uravakonda administered and managed by
the Endowment Department, Government of Andhra
Pradesh, through this defendant, seeks for dismissal of
the suit.
36. On the said pleadings, the learned Judge
framed the following issues:
1. Whether the plaintiffs prove that the open site bearing old Municipal No.20 (new Nos.20-19 and 19-20) measuring 112.1’+ 158’/2 x 168’ situated at Kumara Park West which came to be allotted
by the then City Improvement Trust Board (Now Bangalore Development Authority), Bangalore, through the registered agreement Dated 19.11.1952 and which came to be subsequently conveyed under the registered Sale deed dated 29.10.88 by Bangalore
Development Authority, Bangalore, in favour of Late Sri. His Holiness Jagadguru Uravakonda Karibasava Rajendra Swamy was allotted and conveyed under the said agreement and sale deed in his individual
44
capacity, but, not in any other capacity or to any other Trust or Mutt through him?
2. Whether the plaintiffs further prove that the
said Late Swamiji treated, developed and maintained the said property by constructing structures thereon in his own individual capacity, but, not as the property of any Trust or Mutt?
3. “If issue Nos. 1 and 2 are answered in the ‘affirmative’, whether the plaintiffs further prove that Sri. C. R. Hiremath, the deceased plaintiff No.1, being the younger brother of Late Swamiji and, after his demise, the plaintiff Nos.1(a) to 1(d) being his legal
representatives, and also plaintiff No.2 Smt. Shivagangamma being the sister of late Swamiji and plaintiff Nos. 3 to 7 being the legal Representatives of Smt. Prema Pandit, another Sister of late Swamiji who died after his demise, all Succeeded to the suit
property?”
4. Whether the plaintiffs 1(a) to 1(d) prove that they are the only legal representatives of the deceased plaintiff No.1 Sri. C. R. Hiremath?
5. Whether the plaintiffs prove that third Defendant Trust, namely, The Anubhava Mantapa Trust never came into existence in respect of the suit schedule property and it never functioned as such?
6. Whether the defendants prove that the said open site came to be allotted and conveyed to the public Trust or Urvakonda Mutt Samstanam through Late Sri His Holiness Jagadguru Urvakonda Karibasava Rajendra
45
Swamiji but not to the said Swamiji himself as an individual?
7. Whether the defendants prove that the said
Late Swamiji held, developed and maintained the said property as the property of Public Trust or Mutt but not in the capacity of absolute owner thereon?
8. Whether defendant Nos.1 and 2 prove that
the Third defendant Trust, namely, Anubhava Mantapa Trust was lawfully constituted in respect of the schedule property and it has been functioning as such dealing with the said property?
9. Whether defendant Nos. 1 and 2 further prove that the present suit is barred by res judicata in view of the dismissal O.S.No.260/74 on dated 16.09.1975 and O.S.No.4012/1985 on 12.02.1990?
10. Whether defendant Nos. 4 and 5 prove that Defendant No.4 came to be nominated on 21.03.92 by Government of Andhra Pradesh by its order No.Go.MS.309 as interim Matadhipathi of Gavi Mutt Samsthanam and later as permanent Matadhipathi of the said
Mutt by the Endowment Commissioner of the State of Andhra Pradesh by his order dated 16.06.97?
11. Whether defendant No.5 proves that this suit
is bad for non-joinder of necessary parties?
12. Whether the suit is not properly valued by
the Plaintiffs?
46
13. Whether Plaintiffs are entitled to the reliefs Sought for in respect of the suit schedule Property?
14. What Order or Decree?
37. On framing the said issues, the plaintiff
No.1(d) Ms.Sadhana Hiremath got examined herself as
PW1 and got marked documents at Exhibits P1 to P44.
On behalf of defendants, three witnesses were examined
i.e.DW.1 Smt.D.C.Umadevi, the then President of first
defendant namely Akkamahadevi Samaja, and got
marked documents Ex.D1 to D26, Defendant no.4 His
Holiness Sri Sri Jagadguru Channabasava Rajendra
Swamiji has got himself examined as DW.2 and one Sri
Jagadguru Shivananda Swamyavaru as DW.3 and has
got marked the documents as Exhibits D27 to D41. 5th
defendant an official got examined as DW.4 and got
marked exhibits D42 to D47.
38. On conclusion of the evidence and after
hearing the arguments of learned counsel for the
plaintiff as well as defendants 1 to 5, the learned
47
Prl.City Civil Judge deemed it fit to dismiss the suit and
directed the parties to bear their own costs vide
Judgment and Decree dated 09.09.2005.
39. Aggrieved by the said Judgment and Decree,
the plaintiffs are in this appeal inter alia contending
amongst other grounds that, the judgment and decree
impugned is erroneous and contrary to the facts
prevailing in the case. Further it is contended that
while observing at para-45 that it is an undisputed fact
that the then CITB allotted a site measuring 112.1 X
158/2 X 168 feet situated at Kumara Park West in
Bangalore City under the registered agreement dated
19.11.1952 and possession was delivered to Late
Swamiji under possession certificate dated 21.11.1952
and thereafter BDA Bangalore executed registered sale
deed 29.10.1988 in the name of late Swamiji. Ex.P1 to
P3 are to be admitted in evidence and their contents are
to be held undisputed, has wrongly observed that the
contentions of the plaintiffs that the suit property was
allotted to Swamiji in personal capacity has not been
48
denied by the defendants specifically will have to be
taken as admitted, cannot be accepted.
40. Further, it is contended that the learned
Judge grossly erred in not appreciating the pleadings,
evidence and various rulings relied in the proper
prospective, while the trust deed dated 12.10.1955
never came into existence and was never acted upon
and has failed to consider that the agreement dated
19,.11.1952 and terms and conditions in the said
agreement would no more prevail in view of the sale
deed dated 29.10.1988 by the BDA with new terms and
conditions, ought to have considered by the learned
Judge. Further it is contended that the learned Judge
brushed aside the categorical recitals in the sale deed
dated 29.10.1988 that the said absolute sale deed came
to be executed in favour of the Late Swamiji only on
fulfillment of the conditions of the agreement dated
19.11.1952 and fulfillment of the conditions is the
consideration for executing the said absolute sale deed
executed by the BDA, has not been taken into
49
consideration by the trial court. Further, the trial court
ought not have looked into or considered any other
documents or circumstances to interpret the said
documents/ sale deed.
41. It is specifically contended by the appellant
that the trial court at Para-52 observed about the
execution of the sale deed by the BDA in favour of the
Swamiji on fulfillment of the conditions of the
agreement, the trial court ought not to have looked into
any other factor other than the terms and conditions of
the absolute sale deed dated 29.10.1988. But the
learned Judge has mis-interpreted said sale deed and
has wrongly held that the right to enjoy the rents and
profits must have been given to the late Swamiji for
spending the same towards maintenance and
development of the suit property but not towards his
own maintenance as by reason of His Holiness being
Jagadguru of Urvakonda Mutt, he did not require
anything towards his maintenance and besides this, he
had none to maintain by him because he being
50
unmarried, had no wife or children any dependents of
any kind.
42. Further it is contended that though the
learned Judge held contents of Ex.P2 – sale deed
undisputed without any reason has observed that the
site was not granted to the Swamiji in his individual
capacity as contended by the plaintiffs but it was
granted through late Swamiji to benefit of the public
and for public purpose and such an observation is
without any legal basis and lacks legal approach. The
trial court grossly erred in ignoring the categorical
enunciation of law that the condition in the agreement
would survive till the sale deed is executed and when
once the sale deed is executed conditions containing in
the absolute sale deed will govern as observed in the
case of R & M Trust VS Koramangala Residents
Vigilance Group Reported in AIR 2005 SC 894
43. Further when contents of Ex.P2 puts at rest
all the controversy and when the contents are free from
51
any ambiguity in respect of all the matters in
controversy the question of production of any other
document or documents that is copies of the
representation earlier to 1952, that is more than 50
years old documents is suggesting for an impossibility
and giving no importance to the best evidence produced,
but the trial court ignored well settled principles in that
regard. The adverse inference against the appellant is
to be drawn for not having produced the certified copies
of the said representations and without applying legal
mind and without taking into consideration the best
evidence on record.
44. Further it is contended that when the
pleadings and evidence are not denied by the
defendants 1 to 3 and one witness examined by them as
DW1 while answering to a suggestion elicited that there
are no documents with Anubhava Mantapa Trust in
respect of any of the activities carried out by it during
the period from 1955 to 1981. The none production of
such documents by defendants the trial court has to
52
draw adverse inference but the same has been
judiciously ignored.
45. It is specifically contended by the appellant
that the trial court erred in not considering the
cancellation deed, though the said deed was marked as
Ex.P4 and is admitted by the defendants 1 to 3 in their
written statement. It is also contended that the
observation of the court below that neither the plaintiffs
nor the defendants produced any documents pertaining
to the construction of the building and what is produced
by both sides in support of their respective contentions
is oral and documentary evidence. To conclude the trial
court at Para-45 of the judgment held that the contents
of Ex.P2 is to be held undisputed. It also erred in
coming to the conclusion that evidence of DW1 that
personal knowledge as to the oral evidence of PW1 and
there appears to be no reason to disbelieve the evidence
of DW1.
53
46. Further with regard to observations made at
para-82 that the Swamiji never treated the suit property
and never maintained and developed the same as his
personal property and even if the said cancellation deed
does exist, there is no material to believe that it was
executed by His Holiness late Swamiji only and it was
acted upon by him during his life time which was
almost a decade after its coming into existence, such
observation is contrary to the facts and documents.
Further it is contended that the observations made by
the learned Judge at Para-80 of the judgment that
recitals of Ex.P5 – trust deed disclose that Swamiji had
given up in favour of the 3rd defendant - trust all his
rights and interest in the open site that was allotted in
his name under Ex.P1 and buildings proposed to be
constructed on it with clear intention of surrendering
the same in favour of public at large through the said
trust. It is further contended that trial court failed to
take into consideration the undisputed fact that Swamiji
maintaining the property till his death and is running
54
spiritual centers at the schedule property and transfer
of katha in the Municipal records show his name and
execution of sale deed is in individual name of the
Swamiji and if really defendant No.3 has constructed
buildings, the said trust did not raise any objection that
BDA has executed the sale deed in favour of Swamiji,
which fact is ignored by the trial court.
47. Further, the trial court grossly erred in taking
into consideration Ex.D18 as an undisputed document
while DW1 categorically stated in her cross examination
that she was not knowing whether the respective
respondent / tenants in the said HRC petition had
taken the contention that Swamiji was the owner of the
premises and that Anubhava Mantapa Trust in the said
petition was not the owner thereof. Thus, the trial court
answered issues No.1, 4 and 5 in the negative
improperly without appreciating both oral and
documentary evidence placed on record in proper
perspective and seek to set aside the judgment and
decree so passed and to decree the suit as prayed for.
55
48. While disposing of the said suit in the
judgment as certain issues are answered in favour of
the plaintiffs and against the defendants; the
defendants 1 to 3 chose to file Cross Objections in RFA
Crob.No.2/2006, inter alia, contending amongst other
grounds that they are aggrieved by the findings recorded
on issue Nos.6 to 9 and 12 and the court below erred in
not noticing pendency of OS No.962/1991 and
observing that the same had nothing to do with the suit
before it and recording of finding on issues No.6, 7 and
8 as incorrect. Further contended that finding on
issues No.9 to 12 regarding valuation of the suit the by
the trial court is not proper and the same requires to be
set aside.
49. The defendant No.5 has also chosen to file
RFA Crob.No.39/2005 contending that it is common
contention of the respondents that plaintiff has not
valued the suit property and the court fee paid is
insufficient, but, the trial court has grossly erred in
holding that it is specific case that Swamiji himself has
56
inducted various tenants in the building comprising the
suit property and as such he was in constructive
possession thereof and after his demise the suit
property devolved on the plaintiffs and as such they
continued to be in constructive possession thereof and
that they sought the declaration that they are the
owners of the suit property along with the restrictions
attached to it and on account of their un-acceptable
relationship as members of a family with the Swamiji,
the finding given on Issue No.12 is not sustainable on
facts and which requires to be set aside. They sought
reversal of the findings given by the trial court and the
said issue regarding valuation of the suit.
50. Thus, the impugned judgment is not only
challenged by the plaintiffs, but, the defendants have
also challenged the same on different issues which are
held against them.
57
51. Counsel for the respective party namely
appellants and respondents submitted their arguments
at length.
52. The learned counsel appearing for the
appellants Mr.Sudindranath submitted that in the year
1952 the then Government of Mysore granted a site to
His Holiness Jagadguru Urvakonda Karibasava
Rajendra Swamy and such grant was subject to certain
conditions and thereafter in the year 1955 the alleged
trust was created; however, in the year 1981 the said
trust was cancelled; subsequently, BDA executed sale
deed in favour of the Swamiji in the year 1988 and the
Swamiji died in the year 1991. In the circumstances,
plaintiffs who are legal representatives of the Swamiji
filed the suit, whereas defendants 1 to 3 claim their
right over the suit schedule property under trust deed
and the Uravakonda Karibasavarajendra Mutt is also
claiming the property.
58
53. Further he submitted that Ex.P1 – Deed of
Agreement executed on 19.11.1952 between His
Holiness Sri Jagadguru Karibasava Rajendra
Mahaswamigalavaru, Guru Mutt, Uruvakonda,
Ananthapur District and the Government of Mysore
represented by its Chairman, City Improvement Trust
Board, Bangalore City, stipulates certain conditions on
the application made by the first party for grant of land
and the second party recommended the allotment of an
extent of land mentioned in the schedule and whereas
the Government in the Order No. L. 5877-90/I.T.B. 5-
52-82 dated 30.07.1952 approved the allotment of the
said site with certain conditions, which stipulates that a
decent building as per the plan to be approved by the
Board and the Government Architect at a cost of about
Rs.1 lakh to be put up; building should be constructed
within a period of about three years from the date of
allotment; the building should be used as cultural and
religious center open to all communities and classes;
that the site should not be alienated and in the event of
59
violation of any of the conditions aforesaid the Board
shall resume the site with the structures thereon.
54. In that regard he further submits that such
allotment was for the use of land for cultural and
religious center open to all communities and class,
whereas, Mutt confined only to particular community
and it is not open to all communities. Hence, clause (3)
of the agreement has to be construed as the agreement
is made to an individual and not to the mutt.
55. He further submitted plaintiffs are successors
of Swamiji, in as much as original plaintiff was brother
who since deceased are represented by the plaintiff No.1
and plaintiff No.2 is sister and plaintiff No.3 is legal
representatives of another sister. He submits the trust
deed executed by Swamiji is void ab-initio and not acted
upon and not gone into, the plaintiffs have every right to
succeed to the property. In that regard he further
submitted that biological relationship of plaintiffs with
that of the Swamiji is not in dispute. Likewise, grant of
60
property also is not in dispute, but, the only question to
be considered is as to whether the property was allotted
in favour of individual person or in favour of Mutt.
56. In that regard he further submits that
Government Grants Act, 1895, also known as Crowns
Act, makes it clear that Transfer of Property Act is not
applicable to lands granted by the Government, in as
much as, Section 2 of the said Act specifically states
that Transfer of Property Act 1882 is not applicable to
Government grants. Further, he also contended that
Section 3 of the Act takes effect according to the tenor of
the document, in as much as, all provisions,
restrictions, conditions and limitations contained in any
such grant or transfer as aforesaid shall be valid and
take effect according to their tenor, notwithstanding any
rule of law, statute or enactment of the Legislature to
the contrary, though Section 10 of TP Act is saved by
Government Grants Act and Government Grants Act is
still in force. Likewise he further contends Section 11 of
the TP Act is also saved by Government Grants Act. In
61
the circumstances, the terms and conditions in Ex.P1
and 2, agreement and sale deed executed by BDA in
favour of Late Swamiji will have to be interpreted as per
terms of Government Grants Act. In that regard he also
relied on the decisions of the Apex Court in the case of
M/S. HAJEE.S.V.M. MOHAMED JAMALUDEEN BROS.
AND CO., vs GOVERNMENT OF TAMILNADU reported
in AIR 1997 SC 1368 – Head Note (A), wherein it is held
rights, privileges and obligations under the grant are
regulated by its term, irrespective of whether such
terms are inconsistent with any other law.
57. He as also relied upon the decision of the
Apex Court in the case of EXPRESS NEWSPAPERS PVT
LTD vs UNION OF INDIA reported in AIR 1986 SC 872 –
Head Note (C), wherein it is held the overriding effect of
Sec. 3 is that, grant of property by the Government
partakes of the nature of law since it overrides even
legal provisions which are contrary to the tenor of the
document.
62
58. In that regard he contended that when
Swamiji executed the trust deed Swamiji was not having
any title over the property and was only an agreement
holder and besides trust never came into existence.
Thus even a pleading with regard to estoppels under
Section 43 of the TP Act is not applicable to the facts
and it cannot be said that Swamiji having created trust
is estoped from cancelling it.
59. He further specifically contended that trust
deed was never acted upon as evidenced by subsequent
developments, in as much as, Ex.P6 which is dated
03.02.1988 discloses that the assessment notice is
issued assessing the tax to be paid with regard to the
suit property by Swamiji and it also makes it clear that
property is in the name of the Swamiji and even as on
03.02.1988 nothing is mentioned about the trust.
Further he contended that even as per Ex.D27, which
document is got marked by DW2, which is dated
30.04.1983 discloses that Swamiji is recognized as the
63
owner of the property and nothing is mentioned about
formation of the trust. Similarly, Ex.D28, which is
notice dated 23.07.1960 issued under Rule 9, Schedule
3, Section 145 of the Corporation Act 1949, discloses
that said notice is given to the Swamiji in his individual
capacity and nothing is forthcoming with regard to the
creation of trust. Ex.D29 dated 25.07.1960, which is
tax paid receipt got marked by the defendants also
discloses that same was received from Swamiji and
trust is not at all in the picture.
60. Further he submitted that a civil suit by
Shashidhara and Chaandrashekhar in Misc.
No.653/1990 recognise that Swamiji of Uruvakonda
Mutt was the owner of the property. The said petition
was not filed against the trust. In that regard he
submits Ex.P8 clearly discloses that there is nothing on
record about creation of the trust and trust having any
right in the property and also does not disclose that
whether trust was acted upon.
64
61. Further he submits that even as per amended
plaint in O.S.No.962/1991 which is registered
subsequent to allowing of Misc. No.653/90 the plaintiffs
therein have not recognized any trust with regard to the
suit schedule property and thus he contended that the
trust said to have been created by Swamiji was void -
ab-initio and it is against to terms of grant and against
the Government Grants Act and was never acted upon.
62. He further submits that Receiver was
appointed to manage the properties and Receiver took
possession of the property from Swamiji and not from
the trust. It is contended further by the counsel for the
appellant that at the time when the present suit was
filed property was managed by Receiver and suit for
mere declaration was filed without seeking possession
and Receiver holds property for and on behalf of real
owner. Further, he submits that in the impugned
judgment at Para-101 it is clearly observed that
Receiver was appointed by Court in OS 962/91 during
life time of Swamiji and Receiver took custody of entire
65
suit property is not in dispute. Further it is stated in the
judgment that Ex.P12 – certified copy of the Receiver’s
Interim Report submitted by Receiver also establish the
fact that he had taken custody of the entire suit
property and further it is elicited by the learned counsel
that Defendants 1 to 3 in their cross examination that
after demise of Swamiji taxes were paid by Receiver
himself and Receiver died about 2 to 3 years ago from
the date of cross examination.
63. Thus he submits that the creation of trust by
Late Swamiji was void-ab-initio and it was never acted
upon and there are no documents to prove that trust
did really come into existence. The learned counsel for
appellant further contended with regard to allotment of
the property, that property was allotted in the name of
individual and not in the name of Mutt. Swamiji was
doing social work and he is doing it apart from he being
Matadhipathi. During the cross examination of DW1,
namely, D.C.Umadevi, at para-60 has deposed that she
does not know any of the activities of the Swamiji prior
66
to year 1952, she does not know as to Swamiji is aged
65 years at the time of demise; she does not know as to
Swamiji is doing spiritual and religious excises before he
becoming Mathadhipathi of Mutt and thus the said
witness does not deny the said suggestion on the
contrary she pleads ignorance of the same. Further
DW2 during his cross examination also categorically
admitted with regard to activities of Swamiji. He stated
that the Swamiji was one of the leaders in Karnataka
Ekikarana Movement, Swamiji was a political leader
and he knew Swamiji since 1957.
64. He further submitted that allotment of
property made was to the Swamiji in his individual
capacity on recognizing such social activities and on the
application submitted by the said Swamiji said
allotment was made. He further relying upon on the
compromise petition filed before Civil Judge,
Ananthapur, A.P. in OP No.134/1964, submits that in
the said petition the Mutt itself recognized individual
ownership of the Swamiji on the properties acquired by
67
him. Further he submitted as to one of the recitals of
the compromise petition it is stated that Matadhipathi is
entitled to any Padakanukas or other gifts of property
given to him in his personal capacity and such
Padakanukas or gifts of property to belong to him alone
and they shall not form part of the math. In that regard
he relied on the deposition of DW4 and submitted that
during cross examination he conceded to the suggestion
that Swamiji used to conduct various activities in the
name and style of Socio, Spiritual Center only at
Bangalore in the premises of the schedule property and
many devotees used to offer donations and other gifts.
Thus he submitted that Swamiji used the property not
as that of the mutt, but, used the same as that of his
own individual property. He also submitted that
Swamiji was not Sanyasi and requisite ceremonies has
to be performed on initiation as Sanyasi, which was not
at all performed and it has to be construed as one of the
proof and he recognized his rights to Poorvashrama.
Swamiji had not given up his Poorvashrama.
68
65. Thus, the sum and substance of the
arguments of counsel for the appellant are that Swamiji
was never a sanyasi; the allotment was covered by
Grant Act and not by Transfer of Property Act; the trust
deed is void ab-initio, non-existent in the eye of law;
swamiji retained his association with worldly life, as
such he was not a sanyasi; the trust never came into
existence and did not exist in the eye of law; the
property in question was allotted to swamiji individually
and retained in his individual name; the sale deed is
executed in his individual name; being the brother i..e,
the original plaintiff and the other plaintiffs could
succeed under Section 8 of the Hindu Succession Act.
Accordingly, plaintiffs succeed to the suit property.
Further, he submitted that the very conditions imposed
while allotting the property to swamiji discloses that the
Government itself created a trust in swamiji and
swamiji held the property for the use of general public
at large.
69
66. Per contra, Sri Yoganarasimha, learned Sr.
counsel appearing for respondents 1 to 3 at the outset
submitted that the plaint is bald; no such points are
argued before the Court or forthcoming in the plaint;
further, he emphasized with regard to declaration as to
whether the trust deed or the cancellation deed is null
and void and the reason for not seeking any relief with
regard to the trust is also not forth coming. Further, he
submitted O.S.4012/1985 (Ex.D.17) filed by swamiji
was dismissed for non-prosecution on 12.02.1990. In
that regard he further submitted that the suit was filed
seeking declaration that he was the owner of the
property and for consequential relief of injunction; on
such dismissal of the suit for non-prosecution, no
further proceedings were taken up and the same
became conclusive.
67. Further, he submitted with regard to the deed
of cancellation of trust, that power to cancel the trust
deed is hit by Order 9 Rule 9 of CPC; there is no cause
of action afresh for the same. Further, he submitted
70
that Urvakonda Gavimath Samsthana filed
O.S.No.94/1974 seeking declaration and declaring that
the suit property is the property of the said mutt and to
grant permanent injunction restraining the
defendants/trustees, successors or his agents from
interfering with the plaintiffs-mutts possession as per
Ex.D.39 and the said suit vide order dated 16.09.1975
was disposed of under Order XVII Rule 1 of CPC
inasmuch as, in the copy of the order sheet so marked
which is dated 16.09.1975 states that the plaintiffs
counsel is absent, prays for adjournment and that
swamiji is succeeded and that` Maatadipati has not filed
objections, hence, it is disposed under Order XVII Rule
1 of CPC. Further, he submits that on dismissal of the
said suit filed by the swamiji as Mathadipathi in
O.S.No.94/1974, swamiji did not take any further steps
for restoration of the same and on the other hand, he
chose to file O.S.No.4012/1985 seeking such relief in
his individual name and the said suit was also
dismissed for non-prosecution, but, the swamiji never
71
challenged the said order or never took any steps for
restoration of the same. In the circumstances, to
overcome those laches of passing of the judgment in the
two suits, swamiji executed the cancellation deed which
is not proper. Ex.P.5 – the trust deed discloses that the
land was granted in pursuance of the meeting of the
trust board held on 23.6.1952 and in pursuance of
such meeting, the property was allotted by the CITB and
not by the Government.
68. Further, he submits that the trust deed amply
makes it clear regarding the object of creation of trust,
inasmuch as it is state that to comply with the
conditions of allotment, such a trust deed came into
existence as per Ex.P.5 dated 12.10.1955. Further, he
submitted that on consideration of the objectives of the
mutt, the allotment of site was also by way of free of
cost; under the said trust deed, the swamiji himself
delivered the property to the trust and he divested his
interest in the property and the said trust deed is
marked as Ex.P.5. Once the trust is created, the trust
72
can never be removed or annulled. Exception is only in
respect of ‘principle of cyprus’. In the circumstances, he
further submitted that it is not in law that a purported
revocation can lead any Court to uphold the revocation
and the reasons assigned to such revocation was that
the trustees never informed him about the works
carried on; there is violation of condition; quorum of
trust is not there and such an alleged cancellation of
the trust is not based on factual allegation which is
proved. Further, he submits that the said cancellation
of document was also hit by law of limitation as it was
beyond 3 years from the date of knowledge. The trust
deed was not void but it was only an unsuccessful
attempt of the swamiji to nullify the same. Further, he
submits after the creation of the trust, the trust deed
carried out the responsibility entrusted to the trust. In
that regard swamiji also executed general power of
attorney for effective implementation of the objectives of
the trust and likewise, a portion of the property which
was in custody of the Anubhava Mantapa Trust was
73
allotted to Akkamahadevi Seva Samaja through CITB for
carrying out the objectives of the trust.
69. With regard to the role of swamiji in running
the mutt, swamiji was no-doubt entitled to receive
padakanikas as per Ex.D.32 i.e., the notification issued
by the Government of Andhra Pradesh except that he
would not receive any other property in his individual
name. He could not take grant of land as padakanike.
Further, he submits that as per Ex.P.25, the extract of
register of original petitions maintained with regard to
O.P.134/64 on the file of the Pr.Sr.Civil Judge,
Ananthpur, that matadipathi is entitled to appoint an
agent to look after the spiritual or religious activities of
the mutt and he does not hold the office at the pressure
of the matadipathi and in pursuance of the same, it
amply makes it clear that the trust created by swamiji
was valid and there was no reason for him to revoke
and much less the swamiji had any right to revoke the
trust once created by him. Further, it is also his
contention that as per Ex.D.5 the Anubhava Mantaka
74
Trust was recognized by the then CITB/BDA and the
property was allotted to the Akkamahadevi’s Trust out
of the property that was allotted earlier to the mutt and
the same measured 50 feet x 80 feet and thus, it only
makes it clear that the then CITB recognized it and the
Anubhava Mantapa Trust exercised its right over the
property and it did not resume the land which was
already granted for want of any activities. On the
contrary, it acquiesced the rights exercisable by the
Anubhava Mantapa Trust for public purpose
notwithstanding the fact that the property has changed
hands. BDA has perpetuated with knowledge by
omission or by concurrence as the case may be and as
such, swamiji is estopped From claiming that the
property belonged to him individually. He further
submits that as the property was allotted for public
purpose, the property tax was exempted by the
Corporation and the swamiji was unable to put up the
building within 3 yeas from the date of such allotment;
he invited participation of public by executing the trust
75
deed on 12.10.1955. Thus the CITB, the mutt
recognized the trust so formed by the swamiji. The
trust continued to hold the property and this is implicit
even as on today.
70. Further he submitted that the biological
brother can succeed to the properties of the swamiji
only in relation to his personal properties and when the
swamiji himself disclaims his individual properties,
there is nothing for the plaintiffs to succeed. The cross
examination of PW1 clearly discloses with regard to
such renunciation of such swamiji. Further, he
submitted that to become a petadipati, one should be a
spiritual person. Further, he also relied upon the cross
examination of PW1 at paragraphs 10 and 11 and
submitted that it clearly negatives the contention of the
plaintiffs that swamiji was never a sanyasi. Further, he
submitted once the trust is created and the same
cannot be revoked, it is hit by Section 126 of Transfer of
Property Act as well as Section 78 of the Trust Act.
76
Section 78 of the Trust Act is not applicable to Public
Trust.
71. With regard to OS 962/91 where the receiver
was appointed in a scheme suit, he submitted that
when in the said scheme suit a person voluntarily
impleads himself, it is clear that the trustees are bound
by that besides, the trust deed itself makes it
abundantly clear that the said trust cannot be revoked
for any reason inasmuch as in the said trust deed, the
author of the trust has clearly stated neither himself nor
his successors can cancel the trust or change the trust
for any reasons and thus, he submitted that the trust
once created and when it also carried out the activities
for which purpose the trust was created as explained
earlier, cannot be cancelled and he had no right to
cancel the same. Thus, the trust even now continues to
exist and it is in possession of the property carrying on
its activities. Thus, revocation or cancellation deed is
not valid. He also relied upon the discussion made on
77
ascetic in B.K.Mukherjea Hindu Law at page 334 which
describes about the properties of an ascetic.
“7.21. Can an ascetic acquire and
hold personal property? As has been said above when a layman becomes an ascetic, his connection with his natural family and existing property rights are extinguished. If
he acquires any property subsequent to his becoming an ascetic, such property passes on his death not to his natural but to his spiritual heirs. A pertinent question arises at this stage as to whether it is at all possible for an ascetic to acquire or hold any personal
property subsequent to his renunciation of the world.”
72. Further, he submits that the mutt speaks
through matadipathi. The burden is on the others who
contradicts the said role of matadipathi. Thus, the
learned Sr. Counsel appearing for respondents 1 to 3
viz., Anubhava Mantapa Trust, its director etc. submits
that the property was basically allotted in favour of the
mutt; the mutt speaks through the matadipathi and the
said swamiji rightly created a trust to carry out the
objectives, i.e., the conditions imposed while allotting
the said property; the trust deed also contained
regarding the non-revocation of the trust once so
78
formulated. Further, he submitted the one and the only
condition which the swamiji had retained to himself was
with regard to the fact that he should be informed of the
nomination of successors to the trustees whenever
vacancies arise. Except that reservation of the right to
himself, nothing was reserved to the swamiji and thus,
from the date when the trust was created, the property
was vested with respondent trust. From that time
onwards, the trust is actively carrying on its objectives.
Further, he submits in pursuance of the said rights
vested with it, a portion of the property for better
management was handed over to Akkamahadevi Trust
through CITB. The creation of the trust was duly
recognized by CITB also and acquiesced into it. In the
circumstances, the cancellation deed purporting to
cancel the said trust which was so formed by the said
swamiji is void-ab-initio and it is of no consequence.
Thus, he also submitted the said matadipathi is a
sanyasi; he had no personal interest in the properties so
vested to the mutt and as such, the plaintiffs have no
79
right what-so-ever to file the suit; the suit is not
maintainable and is liable to be dismissed. Thus, he
also submitted with regard to the earlier proceedings
wherein swamiji was a party by himself which also
never yielded any result in favour of the swamiji.
73. Learned counsel appearing for 5th respondent
submitted that there cannot be any separate existence
between individual and mutt and the properties of the
swamiji becomes the properties of the mutt used for the
spiritual and religious activities of the mutt. Swamiji
who was an aesthetic was recognized as such and died
as an aesthetic. On the death of pontiff of the mutt like
in Wakf Act the property should revert to the
Government; the swamiji was not prohibited from taking
any offerings; the property should be utilized for
spiritual purpose. Thus, he submitted that whatever
property was allotted to the matadipathi was the
property of the mutt; Neither the trust nor the
successors of swamiji can have any right over the
property; the property vests with the Government of
80
Andhra Pradesh. Thus, he submitted that the
matadipathi was acting under the Deputy
Commissioner of Endowment Department stationed at
Kurnool District of Andhra Pradesh and thus, the trust
deed or the allotment of property in favour of
Akkamahadevi Seva Samaja and creation of Anubhava
Mantapa Trust, parting a portion of the property in
Akkamahadevi Seva Samaja are all void ab-initio and
the entire property should vest with the Endowment
Department of Andhra Pradesh. There are lapses on
the part of the legal department in drafting certain
documents and that has created lot of confusion.
Under the Wakf Act, the Chief Endowment Officer is a
Sr. officer of the rank of IPS. Any property under the
said Act must pass through the CEO and even here also
the property will have to be routed through the
Commissioner for Endowment Department to the
Government of Andhra Pradesh which matadipathi has
failed to carry out.
81
74. Learned counsel appearing for the 4th
respondent Sri Sripathi representing – President of
Urvakonda Mutt submitted that on the demise of the
then Swamiji, the 4th respondent succeeds to all the
rights which the swamiji had enjoyed in the mutt and
accordingly, the Andhra Pradesh Government has
nominated him as the petadipathi of the said mutt
which he continues to hold and he was appointed on
27.12.1991 as interim petadipathi of the mutt and later
on, as per Ex.D.32 he has been appointed to look after
the religious and spiritual activities of the mutt.
Further, he submits that as perEx.D.36, the 4th
respondent who was initially made an interim
matadipathi was made a regular matadipathi from
26.3.1997. Thus, whatever properties was allotted to
the mutt, now vests with the 4th respondent
matadipathi and nobody else can claim over the same
much less the plaintiffs seeks dismissal of the suit.
75. In reply to the arguments of the learned Sr.
counsel for respondents 1 to 3 and the counsel for
82
respondents 4 and 5, learned counsel appearing for the
plaintiffs/appellants submitted that the three suits
which were filed by different persons in various
capacities claiming different reliefs viz., OS 94/74
renumbered as OS 266/74, OS 4012/85 and OS 32/86,
difference from the nature of reliefs sought; the cause of
action were all different and besides none of those
proceedings were decided on merit and as such, the
judgment in those cases will never operate as
resjudicata.
76. Further, he submits that without filing of the
copy of the plaint in the said suits, the cause of action
cannot be presumed or inferred on the basis of the
order sheet. Further, he also submits OS 94/74 and
OS 4012/85 were not filed by the swamiji but
matadipathi represented by his power of attorney had
filed the suit without the knowledge of the Swamiji.
Further, he reiterated his arguments with regard to the
incompetency of the swamiji to execute any trust deed
83
and he himself had no absolute right over the property
as he was only an agreement holder.
77. With regard to the reliefs sought by the
plaintiffs in the plaint, he submits that the suit is
basically based on the sale deed of the year 1988 and
however, seeking relief of cancellation of deed which was
much earlier to the year 1988 is not required as the sale
deed super cedes all other previous documents, the sale
deed has become conclusive, nobody has assailed the
said sale deed and as such, there is no declaration is
sought in respect of the sale deed.
78. Further, he submitted a valid trust can no-
doubt cannot be revoked, but, as this trust is a still
born trust which was void ab-initio; it never functioned,
and as, swamiji himself had no powers to create such
trust, it cannot be said that the trust is in existence and
carries out the activities of the trust. Further, that if
CITB had recognized the allotment of portion of the
property to Akkamahadevi Seva Samaja; there ought to
84
have been a regular sale deed in favour of the samaja
also and thus seeks decreeing of the suit as prayed for.
79. With regard to the contentions of the learned
counsel for 5th respondent – the Commissioner of
Endowment, Andhra Pradesh he replied that there is no
material on record to show that the swamiji had become
sanyasi. Further, he submitted that the property was
not a mutt property and as such the decision relied
upon by the counsel for 5th respondent is not applicable
besides, the receiver was appointed and on the death of
receiver, the property vests with the Court and the
Court holds the property for the benefit of the true
owner. The provisions of the grant only makes it clear
that the said property cannot be alienated at all.
80. Thus, in view of the submissions made by the
respective counsel for appellants as well as the
respondents, the points that arise for consideration are:
(1) Whether the judgment and decree passed in O.S.8150/2002 on the file of the Prl.City Civil and Sessions Judge, Bangalore is liable to be set-aside?
(2) What order?
85
81. Apart from the said point, the other anciliary
points which also requires consideration in the facts of
the case are that:
(a) Whether the property was allotted in favour of Swamiji as a representative of the mutt or in his individual capacity?
(b) Whether the trust created by swamiji as matadipathi of the mutt was void? If not,
(c) Whether the creator of the trust had any right to revoke and the cancellation deed executed by swamiji was valid?
(d) Whether the execution of the sale deed in the year 1988 supercedes all other activities of the swamiji with regard to the creation of trust and cancellation of the trust?
Points of law to be considered are::
(1) Whether the suit filed by the plaintiff is hit by the principles of resjudicata?
(2) Whether the Court fee paid is sufficient? And whether the suit is valued properly?
The Mutt – Required qualification to become
Matadhipathi – Rights and Obligations of
Matadhipathi:-
82. In the facts and circumstances of the case before
adverting to the respective contention of the party in relation
to the suit schedule property, it is also necessary to consider
the Rules of the mutt, the requisite qualities or qualifications
to become Matadhipathi, the rights and obligations of the
86
Peetadhipathi/Matadhipathi as per the norms of Sri
Urakonda Gurumath Samsthan before considering as to,
“Whether the property was granted in favour of Swamiji as a
representative of the mutt or in his individual capacity.
83. In that regard the 4th defendant - the present
peetadipathi of the Urvakonda Gavimath of Samsthan,
Urvakonda, Ananthpur District is examined as DW2. He
has deposed that he was the head of Karibasava
Swamy Mutt, Hosapet, Tumkur – a branch Mutt of
Urvakonda Gavi Mutt Samsthan, from 1961; the
deceased Sri Karsi Basava Rajendra Swamiji – the
Peetadhipathi of Uravakonda Gavi Mutt Samsthan was
his preceptor who nominated him as his successor of
Uravakonda Gavi Mutt Samstan, Andhra Pradesh on
12.03.1984. He has further deposed that after the
death of Sri Kari Basava Rajendra Swamy, he was
appointed as an Administrator of the Mutt by the
Deputy Commissioner (Endowment), Karnool and there
was another contestant for succeeding to the vacant
post of Matadhipathi and therefore, he could not occupy
87
the place of 7th Matadhipathi of the main mutt
immediately; he was only nominated as the interim
mathadipathi on 21.03.1992; the Commissioner
(Endowment) stationed at Hyderabad, in pursuance of
the orders dated 31.07.1992 passed in
W.P.M.P.11794/2002 and W.P.5720/92 passed on the
file of the High Court of Andhra Pradesh, by its order
dated 10.08.1992 permitted him to perform the religious
and spiritual functions of the Uravakonda Mutt
excluding secular administrations; on 16.06.1997, the
Endorment Commissioner of Andhra Pradesh stationed
at Hyderabad appointed him as the permanent
Peetadhipathi of Gavi Mutt Samsthan of Uravakonda
including its branches; he took charge of the office on
23.06.1997 at 9.45 AM and he continues to be the same
as on the date of he deposing before the Court. He also
got marked the documents as per Exs.D.27 to D.41 and
nowhere in his evidence he deposed anything about the
details of the creation of the original mutt, the details of
the branches of the mutt, whether the branch of the
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mutt was in existence at Bangalore much prior to
allotment of suit schedule property and what are the
requisite qualities and qualifications to become a
Matadhipathi and what were the powers conferred on
the erstwhile Swamiji while so nominating or appointing
him as Matadhipathi. Even during the course of cross
examination, he has deposed nothing with regard to
these aspects.
84. On perusal of the documents so got marked
by him i.e., Exs.D.27 to 41, it is seen that Ex.D.27 is
the licence issued by the Bangalore City Corporation for
constructing the building in the schedule premises
which is dated 30.04.1983, Ex.D.28 is the assessment
order dated 23.07.1960. Ex.D.29 is the tax paid receipt
dated 25.07.1960. Ex.D.30 is the pamphlet printed in
Telugu with regard to the coronation of the 4th
defendant, Ex.D.31 is the letter authorizing the Deputy
Commissioner (Endowment), Karnool to be incharge of
the files of the Court until further orders. Ex.D.32 is
the order of the Commissioner for Endowment of
89
Hyderabad appointing the 4th defendant as the interim
Matadhipathi of Sri Gavi Math, Uravakonda,
Ananthapura District to look after the religious and
spiritual activities of the mutt. Ex.D.33 is another order
passed by the Commissioner (Endowment) dated
10.08.1992 restraining the 4th defendant from
interfering in the secular administration of the mutt.
Ex.D.34 is also another letter issued by the Office of the
Commissioner (Endowment) dated 23.03.1992
entrusting the 4th defendant with religious duties
pertaining to the Mutt subject to the Court directions, if
any. Ex.D.35 is the letter handing over the pooja
articles to 4th defendant to perform the pooja and the
same is dated 25.03.1992, Ex.D.36 is the letter dated
23.06.1997 addressed from the Assistant Commissioner
(Endowment) to the Commissioner (Endowment
Department) reporting that 4th defendant succeeded to
the Office of Matadhipathi under Section 53(1) of the
Act. Ex.D.37 is the letter addressed by the Additional
Commissioner of Endowment, Hyderabad permitting the
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joint operation of the accounts of the mutt by the 4th
defendant and the manager of Sri Gavi Mutt
Samsthanam, Uravakonda, Ananthapuram District.
Ex.D.38 is the copy fo the orders passed in
W.P.2825/1992 and other connected cases on the file of
the High Court of Judicature, Andhra Pradesh at
Hyderabad; under the said writ petitions the
appointment of the 4th defendant as interim
matadhipathi was challenged and the said writ petitions
were allowed, vide order dated 17.01.1997. In
pursuance of the said orders passed in the writ
petitions, the Commissioner (Endowment), Andhra
Pradesh deemed it fit to pass appropriate order on
16.06.1997 and the copy of which is got marked as
Ex.D.40. ON perusal of Ex.D.40, it is seen that the
nomination of 4th defendant herein by the then Sri
Karibasava Rajendra Swamiji as Uttaradhikari of Gavi
Mutt was recognized and accordingly, he was appointed
as the Mathadhipathi of Urvakonda Gavi Mutt. Ex.D.39
is the copy of the order sheet in O.S.94/74 by the
91
vacation District Judge at Bangalore which suit was
disposed off under Order XVII Rule 1 of CPC on perusal
of which it is seen that in the order dated 16.09.1975 as
the plaintiff counsel was absent and no evidence was
adduced, the suit was disposed of under Order XVII
Rule 1 of CPC. EX.D.41 is the copy of the judgment
passed in O.S.32/86 on the file of the Addl. Subordinate
Judge, Anantapur wherein the order passed by the
Commissioner and the Government removing the 4th
defendant from the post of Matadhipathi was set-aside.
Ex.D.42 is the copy of the register maintained by the
then Trust Board (the then CITB) wherein at Item
No.1006, a mention is made about the grant of site to
Rajendra Swamiji. Thus, all the document so got
marked by the 4th defendant discloses, that how the 4th
defendant became the 7th Matadhipathi of Uravakonda
Mutt and nothing is forth coming with regard to how the
Mutt acquired the site and what are the qualities, rights
and duties of matadhipathi and what are the requisites
to become a Matadhipathi.
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85. Learned counsel for defendant Nos.1 to 3
referred to the The Hindu Law of Religious and
Charitable Trusts by B K Mukherjea, 5th Edition and
submitted that the property of ‘ascetic’ will become the
property of the mutt. In that commentary at page
no.334 in relation of property of ‘ascetic’, it is observed
as hereunder:
7.21. Can an ascetic acquire and
hold personal property? As has been said
above when a layman becomes an ascetic, his connection with his natural family and existing property rights are extinguished. If he acquires any property subsequent to his becoming an ascetic, such property passes on
his death not to his natural but to his spiritual heirs. A pertinent question arises at this stage as to whether it is at all possible for an ascetic to acquire or hold any personal property subsequent to his renunciation of the world.
86. However, in the subsequent paragraph itself
i.e., at 7.21A, a detail discussion is made with regard to
personal property and rules of succession as hereunder:
7.21A. Personal property and rules of
succession.- Yajnavalkya, as stated already, has laid down special rules for succession to the property of ascetics who have been divided into three classes, namely,
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Brahmacharis, Vanaprasthas or hermits and Sannyasis or Yatis. These rules imply that ascetics and have property, though commentators like Vijnaneswar, Mitramisra
and others have explained the text as referring to the books, clothes, sandals and other articles which are necessary even for an ascetic. It cannot be disputed that the very meaning of the word “Sannyas” implies compete renunciation and, in fact, the ideas of
renunciation and acquisition of property are wholly repugnant to each other. There are various texts in Hindu religious treatises which prescribe voluntary property for an ascetic and declare acquisition of wealth by religious men as positively sinful; but the
question still arises as to what would happen if, in derogation of these injunctions which are certainly of a religious or moral character, a Sannyasi does acquire wealth or land. Does he forfeit his ownership in the acquired property? In other words, is he legally
incapable of acquiring any title to it? The answer to this question has been given by the Judicial Committee in these words: “No doubt, if a question arises whether a particular property acquired by a given
individual was acquired on his own behalf or on behalf of some other person or institution with whom or which he was connected, the circumstances that the individual so acquiring property was a professed ascetic, may have importance. But it is out of the question to
suppose that a man’s religious opinions or professions can make him incapable in law of holding property. He may fail to act up to them, or take heretical and inconsistent views without incurring any penalty or disability in law”.
94
A point often arises, as it did arise in this case, as to whether, if a Sannyasi who acquires property happens to be the superior of a Math, the property becomes a part of the
endowment itself or at least is presumed to have been acquired with that intention. This question I will discuss later on. But, so far as the general question is concerned, it may be taken to be settled law that there is no legal disability imposed on an ascetic from
acquiring property in the ordinary way, however much such conduct might appear to be improper or sinful from the moral or the religious point of view.(emphasis supplied)
87. Thus, even as per the said commentary relied
upon by the learned Senior counsel, there is no legal
bar for Sanyasi or Ascetic to acquire any property in his
individual capacity. Besides, as discussed supra,
nothing is forthcoming regarding the obligations of
Matadhipathi towards mutt and his rights towards his
individual acquisition.
88. In this regard, plaintiffs to prove that the said
Kari Basava Rajendra Swamiji had not renounced his
worldly affairs or attachment with his family, relied
upon correspondents made by the Swamiji with his
family members/Purvashrama which are marked as
95
Exs.P.26 to P.44 on perusal of which it is seen that they
are all the letters addressed by the Swamiji to his family
members and others about some personal affairs like
looking a groom for a girl in the family, looking for job to
another etc. and also there is marriage invitation got
printed by the family members of the Swamiji, wherein
Sri Jagadguru Karibasava Rajendra Swamiji, Urvakonda
Mutt, Bangalore is mentioned in the column of ‘With
Best Compliments From’. Thus it is manifest that
though the said Karibasavarajendra Swamiji was
heading the mutt as Matadhipathi, he had not totally
disconnected/served himself from his family; he did
actively participate in the affairs of the family and
friends. Thus, Swamiji had distinct personality
independent of he officiating as Matadhipathi.
89. Further it is also to be seen that the 5th
defendant – the Deputy Commissioner of Endowment
Department, Karnool District who is examined as DW4,
during the course of his cross examination, has
conceded to the suggestion that late Swamiji was
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running socio-spiritual centre at Bangalore in the suit
schedule property and thus, it is seen that running of
such socio-spiritual centre which is very much in
conformity with condition no.3 of the grant that the
building should be used as cultural and religious centre
open to all community and classes is fulfilled. Likewise,
it is seen that the Uravakonda Mutt is meant exclusively
for Veerashiva Community as deposed to by DW4, and
it cannot be said that such a grant was made in favour
of the mutt.
90. Thus, the word ‘asectic’ as per the Websters
Dictionary means ‘The practice of strict self-denial
through personal and spiritual discipline’ and as per the
Oxford English Dictionary, it means, a person who
practices severe self-discipline and abstains from all
forms of pleasure, especially for religious or spiritual
reasons.
91. Learned Counsel for the appellant relied on
decision reported in (AIR 1980 Supreme Court 707) in
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the case of KRISHNA SINGH VS. MATHURA AHIR AND
OTHERS, Head Note ‘E’ reads as hereunder:
“(E) Hindu Law – Religious Endowment – Person whether has become ‘Sanyasi’ – Ceremonies required for becoming ‘Sanyasi’ – Ceremonies necessary among Dasnamis – Usage or custom of particular sect determines what are essential ceremonies. (Hindu Law -
Custom). In order to prove that a person has adopted the life of a sanyasi, it must be shown that he has actually relinquished and abandoned all worldly possessions and
relinquished all desire for them or that such ceremonies are performed which indicate the severance of his natural family and his secular life. If must also be proved, in case of orthodox sanyasis, that necessary ceremonies have been performed, such as
Pindadans or Birajahoma or Prajapathyesthi without which the renunciation will not be complete.”
Learned Counsel further relied upon the decision
rendered in the case of BABU LAL VS. MOTI LAL
reported in AIR 1984 Allahabad 378, wherein paras 11
to 15, it is observed as hereunder:
“11. Learned counsel for the appellant contended that since this fact was admitted by Moti Lal that he became sanyasi thirty years ago and as such it was not necessary for the defendant to further establish that religious ceremonies were performed by Moti
98
Lal while adopting sanyas. I am unable to agree with this contention.
12. In Baldeo Prasad v. Arya Priti Nidhi
Sabha AIR 1930 AII 643 it has been held that “The mere fact that a person declares that he has become a sanyasi or that he has described as such or wears clothes ordinarily worn by the sanyasi would not be sufficient to make him a perfect sanyasi. It is essential
that he must enter into the fourth stage of his life in accordance with the necessary requirements. He must not only retire from all worldly interests and become dead to the world, but to attain this he must perform the necessary ceremonies without which the
renunciation will not be complete”. (Emphasis supplied)
13. The Division Bench in the aforesaid
case has very clearly held that the person who adopts sanyas must perform the
necessary ceremonies without which the renunciation will not be complete. In this view of the matter I am of the opinion that if Moti Lal in his statement said that he became sanyasi thirty years ago will not make him sanyasi until he has proved that he has
entered into that religious order after performing the necessary religious ceremonies. If been performed the renunciation of worldly interests will not be complete and it cannot be taken that the person has adopted sanyas.
14. In Krishna Singh v. Mathura Ahir,
AIR 1980 SC 707 Hon’ble Supreme Court held that “In order to prove that a person shown that the life of a sanyasi, it must be shown that he has actually relinquished and
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abandoned all worldly possessions and relinquished all desires for them or that such ceremonies are performed which indicate severance of his natural family and his
secular life. It must also be proved, in case of orthodox sanyasi that necessary ceremonies have been performed, such as Pindadans or Birajohoma or Prajapathyesthi without which the renunciation will not be complete.”
15. It is thus well settled that in the absence of necessary ceremonies having been performed by a person entering in the life of sanyasi, renunciation will not be perfect, nor his civil death can be assumed so as to divest him from all right in the property belonging to
him. There was neither any pleading or any issue on the point, nor any evidence was led to establish that necessary religious ceremonies were performed by Moti Lal at the time and as such merely on his admission and declaration to the effect that he had
taken sanyas thirty years ago will not make him a perfect sanyasi so as to disentitle him in claiming any right in the property. Plaintiff Moti Lal claimed one-third share in the properties. It was for the defendant, who had contested the claim of plaintiffs, to establish
that Moti Lal had ceased to hold interest in the property having entered into the religious order of a perfect orthodox sanyasi by performing necessary religious ceremonies without which renunciation and retirement from worldly affairs will not be complete and
he will not become dead to the world. Such a case was neither plead nor it was established by any evidence on record that necessary religious ceremonies were performed by Moti Lal while adopting religious order of orthodox sanyasi. His admission or declaration of
100
becoming sanyasi will not help the defendant-appellant in the absence of any evidence to establish the said fact, as held in Baldeo Prasad’s case (AIR 1930 AII 643) (supra).”
Learned Counsel also relied on a decision in the case of
AVADHESH KUMAR VS. SHEO SHANKAR reported in
AIR 1985 Allahabad 104 wherein Head Note ‘A’ reads as
hereunder:
“(A) Hindu Law – Person becoming Sanyasi – Proof – Modes. (Evidence Act (1 of
1872) S.3).
Two modes have been provided for the proof that a person has adopted the life of a sanyasi. The first mode is that is must be shown that he has actually relinquished and
abandoned all worldly possessions and relinquished all desire for them. The second mode is to prove the performance of ceremonies which indicate the severance of his natural family and his secular life. Proof of performance of ‘Prajapathiyesthi’ and
‘Birajahoma’ are considered very essential.”
92. Thus, both oral evidence as well as
documents so got marked is silent with regard to the
creation of the original mutt, the details of the mutt and
also as to when exactly the branch mutt at Bangalore
was started, whether it was prior to allotment of the suit
101
schedule property or subsequently; the evidence of the
4th defendant who became 7th Matadhipathi of the Mutt
also does not disclose anything relevant for the purpose
of adjudicating the rights of the parties to the suit
schedule property.
The Grant of Suit Schedule Property:-
93. Now with regard to the suit schedule
property, the undisputed facts are that the property in
dispute was granted in the name of His Holiness
Jagadguru Urvakonda Karibasava Rajendra Swamy vide
order bearing No. L-5877-80-I.J.B.5-52-82 dated 30th
July 1952, in pursuance of which the grantee also
executed an agreement in favour of the City
Improvement Trust Board (CITB) on 19.11.1952 and
subsequently the present Bangalore Development
Authority also executed the sale deed in favour of the
said grantee vide sale deed dated 29.10.1988.
102
94. It is also not in dispute that the grantee
created a trust with regard to the said property as per
Ex.P.5 dated 12.10.1955 and subsequently, the said
trust was cancelled as per the deed of cancellation of
trust marked as Ex.P.4 dated 29.7.1981 and thus it is
seen by the time the sale deed was executed in favour of
the grantee, not only the trust was created, but, the
same was also cancelled by the grantee and despite all
those activities, the sale deed is executed in favour of
the grantee only.
95. In this regard, learned Counsel for the
plaintiff as discussed supra submitted that though the
trust was created with the avowed object of carrying out
the activities for which such grant was made as the
same was not acted upon, he also deemed it fit to cancel
the said trust so created.
96. In this regard, it is to be seen that if at all if
the grantee violated any terms and conditions of the
grant, the BDA would not have executed the sale deed
103
in his favour. Further it is also to be noted that though
the executor of the trust cancelled the same by
executing another registered deed of cancellation, the
said cancellation is not questioned by any of the
defendants or the surviving trustee.
97. On perusal of records, it is seen that Ex.P.1 is
an agreement dated 19.11.1952 executed by His
Holiness Jagadguru Urvakonda Karibasava Rajendra
Swamiji executed in pursuance of the order of allotment
bearing No. L-5877-80-I.J.B.5-52-82 dated 30th July
1952 in favour of Government of Mysore represented by
Chairman the then CITB agreeing to abide certain
conditions of allotment. Ex.P.2 is the absolute sale deed
dated 29.10.1988 executed by the present BDA
represented by its Secretary again in favour of His
Holiness Jagadguru Urvakonda Sri Karibasava Rajendra
Swamiji and a reference is made in the said sale deed
with regard to the allotment letter dated 30.07.1952
referred to in Ex.P.1. It is also made clear in the said
document that the purchaser is the absolute owner and
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he was put into actual possession on 21.11.1952.
However in the said sale deed, it is made clear that the
building constructed shall be used only for habitation
and shall not include any apartments to the building
whether attached thereto or that used as a shop or
Ware House or building in which manfacturing
operations are conducted by Machanical Power or
otherwise, in as much as it is stated that the building
constructed should be used for residential purposes and
cannot be used for any other commercial purposes. It is
also made clear that the purchaser shall have no right
to alienate the suit schedule property even after
execution of the sale deed and the same shall be used
for the purpose for which it is granted. Thus though it
is an out right sale deed, the same is subject to the
condition of the grant under which property was
conveyed.
98. In this regard, it is to be seen that the land
was so allotted under the Government Grants Act,
1898. Under Section 2 of the said Act the provision of
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Transfer of Property Act, 1882 does not apply to the
Government Grants and under Section 3, the grants to
take effect accordingly. For the sake of convenience,
Section 2 and 3 of the said Act is hereunder excerpted:
“2. Transfer of Property Act, 1882, not
to apply to Government grants.- Nothing in the Transfer of Property Act, 1882, contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government
to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.”
3. Government grants to take effect
according to their tenor.- All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and the effect according to their tenor, any rule of law, statute or enactment of the Legislature to the
contrary notwithstanding.”
99. In this contest, learned Counsel for the
appellant relied upon a decision rendered in the case of
M/s. HAJEE S.V.M. MOHAMED JAMALUDEEN BROS.
& CO. –vs- GOVERNMENT OF TAMIL NADU (AIR 1997
SC 1368) wherein it is held as hereunder:
106
(A) Government Grants Act (15 of 1895), Ss.2, 3 – Scope – Grant – Terms of – Stands insulated from tentacles of any statutory law – Rights, privilages and obligations under the grant –
Are regulated by its term – Immaterial whether such terms are inconsistent with any other law.
The combined effect of Sections 2 and 3 of the Grants Act is that terms of any grant or terms of any transfer of land made by a government would stand insulated from the tentacles of any statutory
law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions
are so framed as to confer unfettered discretion on the government to enforce any condition or limitation or restriction in all types of grants made by the government to any person. In other words, the rights, privilages and obligations of any grantee of the Government would be completely regulated
by the terms of the grant, even if such terms are inconsistent with the provisions of any other law.” 100. He also relied upon a decision rendered in
the case of EXPRESS NEWSPAPERS PVT. LTD. –vs-
UNION OF INDIA [AIR 1986 SC 872] wherein it is held
as hereunder:
“(C) Government Grants Act (15 of 1895), S.3 – Grant of property by Govt. – Nature of.
Per Sen.J. – The overriding effect of S.3 is that a grant of property by the Government partakes of the nature of law since it
107
overrides even legal provisions which are contrary to the tenor of the document.” 101. Thus as per the sale deed as it is devoid of
sale consideration and as it is granted under the
Government Grants Act, though certain conditions are
imposed, as per Ex.P-1 it is seen prima facie, the land is
granted in favour of an individual.
102. Further it is also to be noted that the
agreement executed by the Swamiji is executed in his
individual capacity.
103. The plaintiffs have also got marked the copy
of the possession certificate as Ex.P.3 on perusal of
which it is seen that the suit schedule property was
handed over to His Holiness Jagadguru Urvakonda
Karibasava Rajendra Swamy, Bangalore. IN all
transactions referred to supra, the grantee is not
described as Urvakonda Mutt represented by
Matadhipathi which would have been the proper
description if at all if the property was allotted to mutt
and not to an individual.
108
104. Further, it is not the case of the 4th
defendant – Matadhipathi of Uravakonda Mutt that the
office of the mutt is such that the Matadhipathi cannot
hold any property in his individual name. Further, on
perusal of Ex.P. 25 – the extract of the register of
original petitions O.P.134/64 was disposed off by order
dated 31.08.1967 setting-aside the scheme formulated
earlier in O.S.21/39 on the file of the District Judge,
Ananthapur certain observations are made and for the
sake of convenience, the same is excerpted hereunder:
“O.P.134/64, 31-8-67:
That the scheme framed by the Hindu Religious and Charitable Endowments Board in 1939 and confirmed by the District Judge, Anantapur in O.S.No. 21/1939 be and hereby is set aside and the scheme mentioned hereunder be substituted:
That all the properties, endowments, moveable and immoveable shall be the property of the Matt and vest in the Matt and shall be administered in co-ordination with each other by the Matadhipathi or his Agent and the endowments department. The Matadhipathi be entitled to any Padakanukas or other gifts of property given to him in his personal capacity and such ‘padakanukas’ or gifts of property to belong to him alone and they shall not form part of the Math: (Emphasis supplied)
109
That there shall be a Manager appointed by the Commissioner Endowments Department in consultation with the Madathipathi, the manager shall be chosen from among the endowment employees or executive officers or otherwise appointed under Section 27 Charitable Endowments Act, 1966 and the rules framed thereunder:
That the manager shall be in charge of the Secular affairs of the matt and shall be under the administrative control of the Matadhipathi, But he is liable to be removed or dismissed by the Commissioner:
That the Matadhipati be entitled to appoint an Agent to look after the spiritual or religious affairs of the Matt and he does hold the office at the pleasure of the Matadhipathi.”
and the said order has become conclusive.
105. Thus, it is seen that though Sri Karibasava
Rajendra Swamiji was the Matadhipathi of Urvakonda
Mutt, he had his individual right to acquire the
properties and there was no bar for him to acquire any
property in his individual capacity.
106. Coming to the object or the reason for which
the site was granted in his individual capacity, it is seen
that it is the case of the plaintiffs that the said Swamiji
though a spiritual person, was a freedom fighter, he had
110
participated in Karnataka Ekikarana Movement and
was a forefront leader in many works of social reforms
and recognising the said involvement of the Swamiji, the
then CITB granted a site to him in his individual
capacity. In that regard, even the 4th defendant who is
examined as DW2 during the course of his cross
examination, has conceded to a suggestion that the late
Swamiji was one of the leaders in Karnataka Ekikarana
Movement, Late Swamiji was also a political leader. He
was knowing late Swamiji since the year 1957 (at
para.21).
107. Further, on perusal of Ex.D.27 got marked
by 4th defendant, it is the licence issued for constructing
the building in the schedule property and the same is
issued in the individual name of the said Swamiji.
Thus, if at all, if the property was to be allotted in favour
of the Mutt, nothing prevented the then CITB to grant
the property in the name of Urvakonda Mutt,
Andhrapradesh represented by its Matadhipathi.
111
108. Thus, it is seen that the Swamiji was not
prevented from possessing any property in his
individual name, the original grant, the sale deed
executed are all in the name of the Swamiji and as
such, it cannot be said that the property was granted to
the mutt at Ananthapur. Further as discussed supra
one of the conditons of grant as evidenced by Ex.P.1 at
clause 3 is that the building should be used as cultural
and religious centre open to all communities and
classes whereas the Urvakondamutt is exclusively
meant for Virashiva Community not open to all
communities and classes. Thus it is seen that the
Matadhipathi of the Mutt was empowered to possess the
properties individually and the plaintiffs proved that the
suit schedule property was granted in favour of Swamiji
individually.
Creation of Trust and Cancellation:--
109. With regard to the creation of the trust by
the Swamiji and the cancellation of the trust, on perusal
of Ex.P.5, it is seen that, it is a deed of Trust executed
112
by the Niranjan Jagadguru Karibasavarajendra
Swamigalavaru and no where the Swamiji has stated
that the property in dispute was granted in favour of the
Mutt, but on the other hand he claims that it is on his
own interest he sought allotment/grant of site from
CITB and accordingly, the land was granted to him with
certain conditions and in pursuance of it, he was of the
view that a Trust has to be created for achieving the
objectives of such grant. It is also mentioned in the
trust deed that the possession of the vacant site was
delivered to the trustees; a specific condition is also
imposed in the trust deed that neither himself nor his
successor has any right to dissolve the said trust.
However, as per Ex.P.4, subsequently the executor of
the trust deemed it fit to cancel the Anubhava Mantapa
Trust, Bangalore setting forth the detailed reasons in
the said document which is registered on 24.7.1981.
Thus by the time the regular sale deed was executed in
the year 1988, the original grantee had deemed it fit not
only to create a trust on 12.10.1955 but also cancelled
113
the same subsequently on 29.7.1981. At this point it is
to be noted that when cancellation of trust was effected
none of the surviving trustees questioned the same.
110. In this regard, learned Senior Counsel Sri
Yoganarasimha as discussed supra submitted that
when once the trust is created, it cannot be cancelled
for any reasons whatsoever except by way of ‘Cy-pres’ .
In that regard it is to be seen that the ‘Doctrine of Cy-
pres’, is a legal-french doctrine which means ‘so
near/close’ and it means that ‘as near as possible or as
near as may be’. When the original objective of the
settler or the testator became impossible, impracticable
or illegal to perform, the ‘cy-pres doctrine’ follows. In
this context apart from the objectives of the trust, if the
settler himself had no valid right to transfer the
property to a trust irrespective of whether the activities
of the trust is hit by the ‘doctrine of cy-pres’ or
otherwise, the trust itself becomes invalid.
114
111. In a decision rendered in the case of
JAYAMMA VS. MARIABAI reported in AIR 2004 SC 3957
it is observed as hereunder:
“20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that same is invalid and thus, being opposed to public
policy the same shall attract the provisions of Section 23 of the Indian Contract Act.”
Thus as the condition of grant included the clause of
non-alienation, such a condition laidown in the grant
partakes the nature of law, any violation there on,
amounts to breach of contractual obligation and breech
of statutory condition. Hence, the trust deed said to
have been executed by Rajendra Swamigalu is contrary
to the non-alienation clause and thus the same is void.
112. For the sake of conveyance Section 23 of
Indian Contract Act is excerpeted hereunder:
“23. What consideration and
objects are lawful, and what not.- the consideration or object of an agreement is lawful, unless - it is forbidden by law; or
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is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or
property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful
is void.” Thus, Swamiji who was only a grant holder did not have
any ownership right over the property so as to create any
trust. Even the concept of feeding the grant by estoppel
under Section 43 of the Transfer of Property Act does not
apply to the facts of the present case as the trust deed is
not executed for any consideration besides as per the
recitals in the cancellation deed Ex.P.4, the trust never
functioned.
113. Further, it is seen that though in the trust
deed certain persons are nominated as the trustees,
there is nothing on record to show that in fact the said
trustees took possession of the property to act upon the
works entrusted to them under the trust deed. On the
other hand, as observed and submitted by the counsel
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for plaintiff, even on the death of the trustees no new
trustees are co-opted; on perusal of Ex.P.6 dated
03.02.1988 the assessment notice issued assessing the
tax with regard to the schedule property is issued to the
Swamiji and Ex.D.27 which is dated 30.04.1983
discloses that the Swamiji is recognized as the owner of
the property and nothing is mentioned about the
formation of the trust. Even Ex.D.28, the notice dated
23.7.1960 discloses that the same is given to the
Swamiji in his individual capacity. Ex.D.29 is the tax
paid receipt which also discloses that the tax was paid
by the Swamiji. Thus in none of the transaction neither
the trustees nor the trust finds a place and there is
nothing on record to show that the trust was created
and the trustees really acted upon the terms and
conditions of the trust. As rightly submitted by the
counsel for the plaintiff in O.S.962/1991 which is
registered subsequent to allowing of Misc.653/90, the
plaintiffs therein have not recognized any trust with
regard to the suit schedule property.
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114. Thus, as per the decisions relied upon by the
learned counsel for the plaintiff/appellant, the terms
and conditions of the grant as per Exs.P.1 and 2 are to
be followed by the grantee without any variations. In
the decision reported in M/s. HAJEE S.V.M. MOHAMED
JAMALUDEEN BROS. & CO. –vs- GOVERNMENT OF
TAMIL NADU (AIR 1997 SC 1368) and another decision
rendered EXPRESS NEWSPAPERS PVT. LTD. –vs-
UNION OF INDIA [AIR 1986 SC 872] grant of properties
by the Government partakes the nature of land since
over rides the legal provisions which are contrary to the
tenor of the documents.
115. As rightly submitted by the learned counsel
for the plaintiffs, the Swamiji executed the trust deed
when he was not having any title over the property and
was only an agreement holder. Further, the terms of
grant did not stipulate for formation of any trust. Thus,
the Swamiji had no power or authority to transfer his
responsibility of complying with the terms and
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conditions of the grant to any person either by way of
forming the trust or otherwise and thus, the trust so
created was void-abinitio.
116. Further, irrespective of the cancellation of
the trust, as subsequently in the year 1988, the regular
sale deed was executed in favour of the Swamiji himself
in the year 1988 and not in favour of any trust, thus the
said sale deed supercedes all other activities of the
Swamiji in that regard and also it is seen that the
Swamiji has not committed any violation of the terms of
grant. Thus, basically as on the date of execution of the
trust deed in the year 1955, the Swamiji had not
derived any right or ownership or power to transfer the
property in any manner to divest himself of the schedule
property and hence such execution of the deed of trust
is void ab-initio.
117. Thus, it is seen that the plaintiffs have
established that the property was allotted in the
individual name of the Swamiji and after his death, the
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plaintiffs being his legal representatives are entitled to
succeed to the estate of the Swamiji to carry out the
objectives of the grant of the property; the trust deed
executed by the Swamiji was void abinitio and they are
entitled for the relief claimed by them in this suit.
Apportionment of Land in favour of Defendant No.1
– Akkamahadevi Seva Samaj:-
118. With regard to the grant of land in favour of
Akamahadevi Seva Samaja by the Chairman of CITB as
per the agreement dated 21.04.1961, on perusal of the
said agreement marked as Ex.D.5, it is seen that the
reference is made to the grant of 1952. However, it is
stated that the said grant was made to Anubhava
Mantapa Trust, but under the said grant dated
30.07.1952 as discussed supra, it is seen that the same
pertains to the order in Ex.P.1 the land was not allotted
to any trust, it was only allotted to Sri Karibasava
Rajendra Mahaswamigalu. Basically, it is seen that
Ex.D.5 has proceeded on a wrong basis and
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presumption. Further, it is seen that though the
property was said to have been allotted in favour of
Akkamahadevi Seva Samaja. though such allotment
was made in the year 1961, till now no regular sale deed
is executed in favour of Akkamahadevi Seva Samaja.
Likewise the encumberance certificate got marked as
Ex.P.13 also does not mention any such division of the
property. In the circumstances, mere allotment and
that too disclosing a wrong grant by misusing the name
of Anubhava Mantapa Trust will not convey right, title
or interest what-so-ever over the said property to
Akkamahadevi Seva Samaja. Thus, the said allotment
in favour of Akkamahadevi Seva Samaja will not in any
way curtail the right of the Swamiji in the suit schedule
property in toto and more so in the light of execution of
sale deed to the entire extent in favour of Swamiji in the
year 1988.
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Right of 5th defendant in the Suit Schedule
Property:-
119. Learned counsel appearing for the 5th
defendant i.e., Deputy Commissioner of Andhra
Pradesh, Endowment Department, Karnool submitted
that whatever the 4th respondent – Swamiji acquired
the same becomes the property of the mutt; since the
Swamiji was treated as an ascetic, died as an aesthetic,
recognized as an ascetic, all the properties of the
swamiji vested with the mutt. As discussed supra
though Matadhipathi was appointed by the Endowment
Department of the Government of Andhra Pradesh, as
right was given to him/Matadhipathi to possess his
own individual properties also, as discussed supra, it
cannot be said that the property so acquired by the
Matadhipathi in his individual name should vest with
the Government.
120. Learned counsel appearing for 5th defendant
relied upon the decision relied upon the decision in
SAMIT PANI BRAHMACHARY AND OTHERS vs
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MAYAPUR CHAITANYA MATH AND OTHERS reported in
AIR 1999 Calcutta 132 wherein it is observed as
hereunder:
“(B) Hindu Law – Sudra by birth becoming Sanyasi – Succession – Rigour of orthodox view relaxed – Such person dedicating his property to diety – Ordinary
rule of succession inapplicable – His heirs cannot claim any rights.”
121. In the instant case, there is no evidence to
show that the said Swamiji had devoted his property to
the deity, as such the said decision is not applicable the
facts of this case.
122. Learned Counsel relied upon the decision
rendered in SITAL DAS, vs. SANT RAM AND OTHERS,
reported in AIR 1954 SC 606 wherein it is observed has
hereunder:
(e) Hindu Law – Ascetic – Effect.
“The entrance into a religious order
generally operates as a civil death. The man who becomes an ascetic severs his connection with the members of his natural family and being adopted by his preceptor becomes, so to say, a spiritual son of the latter. The other disciples of his guru are regarded as his
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brothers, while the co-disciples of his Guru are looked upon as unless and in this way a spiritual family is established on the analogy of a natural family.”
123. However in the instant case as discussed
supra, defendants failed to prove as to whether the
Swamiji except getting the name of Swamiji and
Matadhipathi, had he really under gone any rituals to
enter into the order of ascetic and as discussed supra
the defendant has failed to produce any evidence in that
regard. Thus for the reasons discussed earlier, the said
decision is not applicable to the facts and
circumstances of the present case.
124. He also relied upon another decision
reported in Yellappa and others Vs. Sri Gurusidda
Desikendra Swamigalu of the Thippasetty Mutt,
Bangalore, reported in XVIII THE MYSORE LAW
JOURNAL REPORTS page 429 wherein it is observed as
hereunder:
“The Swami of mutt is not a trustee as regards the properties of the mutt. His position is akin to that of a manager or
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custodian except in respect of property which is specifically entrusted to him for a particular purpose.”
125. In the instant case it is not the property of
Mutt which is involved, it is the individual property of
the Swamiji himself as discussed supra and as such the
said decision is not squarely applicable to the facts of
this case. Thus as discussed supra, the individual
property of the Matadhipathi cannot be pooled to the
property of the Mutt.
Res-judicata:-
126. With regard to the question of the suit
being hit by principles of resjudicata, it is seen that as
held by the trial Court, the defendants have not filed
copy of the plaint, written statement and mere
production of the order sheet in O.S.260/74 marked as
Ex.P.39 by itself is not sufficient to hold that the causes
of action in the present suit and the said OS 260/94
was one and the same. Further, it is seen that the said
O.S.260/94 was not decided on merits. Similarly,
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O.S.4012/85 was filed by the Swamiji against the
defendants seeking declaration that the Swamiji was the
owner of the said property and declaration that the
trust deed dated 12.10.1955 was illegal and void. In
that regard, the defendants have got marked the
certified copy of the order sheet as Ex.D.17. On perusal
of Ex.D.17, it is seen that the said suit was dismissed
for non-prosecution. In the circumstances, as both the
suits were not heard and finally decided by Court on
merits and also it is not clear as to whether the cause of
action in the said two suits and the cause of action in
the present suit is one and the same, it is seen that the
said disposal of two suits does not operate as
resjudicata.
Valuation of the Suit and Court Fee payable
thereon:-
127. With regard to the valuation of the suit and
the Court fee paid thereon, it is seen that the plaintiffs
have valued the suit under Section 24(d) of the
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Karnataka Court Fee and Suits Valuation Act at
Rs.2,02,962/- and paid Court fee of Rs.13,858/- and it
is contended by the defendants that the market value of
the property is nearly 2 crores 50 lakhs and
Rs.3,20,000/- is the court fee payable on the plaint.
The plaintiffs in the valuation slip filed along with the
plaint has valued the suit as here under:
(i) The plaintiff has filed the present suit against the defendants for declaration
simplicitor that the plaintiff is the owner of the suit schedule property to put to use it for which it was allotted to Sri Jagadguru Karibasava Rajendra Swamiji, without any consequential relief or for possession and therefore Sec.24(d) of the K.C.F. & S.C. Act is
attracted. (ii) Since the suit schedule property suffers from restrictions imposed by the B.D.A. not to alienate the same, the subject mater of the suit is not capable of valuation
and therefore the said relief sought for is valued at 12½ times the revenue payable as per the Assessment Register. The suit property has two municipal numbers i.e., 20-19 and 19-20 and the total revenue payable in respect thereof comes to
Rs.16,237/-, twelve and half times of which comes to Rs.2,02,962/- and therefore a court fee of Rs.13,833/- is paid on the plaint for the said relief of declaration.
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(iii) The relief sought for under prayer (b) is the declaration that all or any transaction, dealing entered into or carried on by the defendants and any charge
whatsoever created by them on the suit property or any portion thereof is illegal, ineffective and does not exist in the eye of law and this relief is valued at Rs.1000/- as provided under S.24(d) of the said act and a court fee of Rs.25/- is paid thereon
accordingly. Thus, a total court fee of Rs.13,858/- is paid on the plaint and the same is sufficient”.
128. For the sake of convenience, Section 24 of
the said Act is excerpted hereunder:
24. Suits for declaration.- In a suit
for a declaratory decree or order, whether
with or without consequential relief, not falling under Section 25.-
(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be
computed on the market value of the property or on rupees one thousand whichever is higher; (b) where the prayer is for a declaration and for consequential injunction and the
relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand, whichever is higher;
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(c) xxxxx (omitted) (d)in other cases, whether the subject
matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher.”
129. The trial Court considering the nature of
relief sought, as the plaintiffs have not sought
declaration and possession of the suit schedule property
has held that clause (a) of Section 24 is not attracted.
Likewise, as no consequential relief of injunction is
sought in respect of the suit property or against any
defendants therein, clause (b) of section 24 is also not
attracted and thus, as the relief granted by the plaintiff
is declaration simplicitor neither asked for possession
nor sought any order of injunction, the over all relief
valued at 12½ times the annual value of the tax payable
to the corporation in respect of the suit property as
observed by the trial Court is proper and thus, the
observation of the trial Court that the plaintiffs have
established their case that the valuation made by them
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under Section 24(d) of the Act, is correct and the Court
fee paid thereon is sufficient and proper, and the same
does not call for any interference.
130. Thus the plaintiffs proved that the schedule
property was granted in favour of Swamiji in his
individual capacity, the trust created by Swamiji was
void abinitio and thus irrespective of whether the
revocation of the same was proper or not, the creation of
the trust itself was invalid.
131. Further, the plaintiffs have proved that the
execution of the sale deed in the year 1988 superceded
all other activities of the Swamiji. Likewise as observed
supra the present suit is not hit by the principles of
resjudicata and the court fee paid is also sufficient and
the suit is valued properly. Hence, the following:
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ORDER
RFA No.1713/2005 is allowed setting aside the
judgment and decree dated 09.09.2005 passed in
O.S.No.8150/2002 by the Principal, City Civil and
Session Judge, Bangalore, except the findings given on
issue Nos.9, 11 and 12 and the said suit is decreed as
prayed for by the plaintiffs.
Consequently, RFA Crob.No.39/2005 and RFA
Crob.No.2/2006 are hereby dismissed.
Parties to bear their own costs.
Sd/-
JUDGE
RV/SK/brn/Nsu/-