REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. _______ OF 2009

(Arising out of Special Leave Petition (Civil) No.21661 of 2006)

Appaji Gowda … Appellant

Versus

Vokkaligara Sangha and others … Respondents

J U D G M E N T

S.B. SINHA, J.   

Leave granted.

1. The effect of creation of a Trust by the Executor of a Testamentary  

Disposition vis-à-vis the rights of the heirs and legal representatives of  

the author of the Will is the question involved in this appeal.  

2. It arises out of a judgment and order passed by the high Court of  

Karnataka  at  Bangalore  in  Regular  First  Appeal  No.  965  of  2004  

dismissing the appeal preferred by the appellant from the judgment and  

order dated 26th March, 2004 passed by the Additional City Civil Judge,  

Bangalore.   

3. One Rangammja, was the owner of a huge chunk of land bearing  

Survey Nos.8,  9,  10,  13,  14 and 15 of Village Sajjepalya  and Survey  

Nos.43 and 44 of Village Malagala measuring 96 acres and 35 guntas.  

On or about 15th March, 1962, she executed a registered Will appointing  

her nephew Puttaswamy as the executor and administrator thereof.  The  

said  Puttaswamy  was  also  given  the  right  to  utilize  the  property  for  

perpetuating the memory of her husband Krishnappa.  He was also given  

the authority to appoint his successor.   

The relevant recitals in the said Will are as under:-

“I am the widow of Late Shri Krishnappa, son  of kempanna, who died on 18.12.1907.  Under a  Registered  Partition  Deed  dated  18.11.1905,  several  properties  came  to  the  share  of  my  deceased  husband  Krishnappa  and  he  was  in  possession and enjoyment of the properties that  fell to his share in the said partition deed as the  absolute owner thereof till his death.  I have no  children, male or female, and after the death of  my husband on 18.12.1907, I became a limited  owner  of  all  the  properties  that  fell  to  my  husband’s share and which he left behind at the  time of his death.  As a limited owner of these  

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properties,  I was in possession and enjoyment  of  them till  the year  1956.  By reason of the  provisions of the Hindu Succession Act,  1956  (Central Act 30 of 1956), I became the full and  absolute owner of the properties that fell to the  share of my husband under the Partition Deed  dated 18.11.1905 and which he left behind him  on  his  death.   Since  1956,  I  have  been  in  possession and enjoyment of those properties as  the full and absolute owner thereof.  I am thus  entitled  to  make  a  Will  in  respect  of  the  properties I am owning and enjoying.

…… ……

(c) I hereby devise and bequeath that all the  landed property owned by me except the house  bequeathed  in  (a)  supra,  shall  be  sold  by  the  Executor appointed under this WILL.  He shall  invest or deal with the sale amounts in a proper  manner and, if invested from the realizations of  either  rent  or  interest  of  the said amounts,  he  shall  perpetuate  the name and memory  of  my  deceased husband.”

4. The Will  specified the lands which were  required to  be sold to  

fulfill the object thereof.   

5. Rangamma expired on 27th February, 1966.  

6. Puttaswamy pursuant to or in furtherance of the said Will, on or  

about 19th October, 1978 executed a Trust Deed in favour of Vokkaligara  

Sangha, respondent No.1, wherein it was inter alia stipulated :-

“(2) The  Donor  has  all  along  considered  himself and acted as TRUSTEE of these lands  and he is  anxious to make use of  these lands  

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and the yield therefrom or the money that may  be  derived  in  the  event  of  these  lands  being  taken  by  competent  authority  for  a  public  purpose for the sole purpose for furthering the  objective of the former owner by utilizing the  schedule property in the cause of education and  spread of knowledge.

xxx xxx xxx

(4) The  Donor  has  therefore  offered  to  the  Sangha the schedule property in Trust and for  the fulfillment of the Donor’s in Trust and for  the  fulfillment  of  the  Donor’s  cherished  objective of serving the cause of education and  spread of knowledge.

xxx xxx xxx

(6) Under these circumstances and with the  object of making adequate arrangements for the  proper  preservation  and  management  of  the  schedule property and for its utilization for the  realization and fulfillment of the objective (b)  (7)  of  the  Donor,  the  Donor  has  created  this  trust and has executed this Deed of Trust.”

7. Puttaswamy in terms of the said Deed of Trust had put his son-in-

law as  Member  of  Executive  Committee  along  with  himself  and  one  

another.  It was also provided that after his life time his son Respondent  

No. 2 or his nominee shall be the member.   

8. Indisputably a proceeding under the Karnataka Land Reforms Act,  

1961 was initiated by the tenants.  For the said purpose they filed Form  

No.7 prescribed under Section 48A thereof.   

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9. Before the Land Tribunal a contention was raised by Puttaswamy  

that Sanga is also a necessary party.  The said contention, however, was  

rejected.   

Occupancy  rights  were  granted  to  Chikkanarasimhaiah  and  

Mariyapa for all Survey numbers except Survey No.15 (44 acres and 33  

guntas).  

10. Puttaswamy  challenged  the  said  order  before  the  High  Court  

impleading  the  first  respondent  as  a  party  by  filing  a  writ  petition.  

However,  upon constitution of the Land Reforms Appellate  Authority,  

the said writ petition was transferred to it.  The provisions for an appeal,  

however, later on having removed, the matter was transferred back to the  

High Court.  It was marked as W.P. No.19015 of 1992.   

Puttaswamy in the meantime had died in 1982.   

11. The  High  Court  set  aside  the  order  of  the  Land  Tribunal  and  

remanded the matter back to the Tribunal to consider the application of  

Puttaswamy.

12. Indisputably by an order dated 18th July, 1998, after the matter was  

remitted back to it by the High Court, the tenancy rights were conferred  

on tenants regarding 52 acres of land.  Allegedly no tenancy right was  

conferred in respect of Survey No.15.   

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13. Our attention has been drawn to the fact that questioning the said  

order of the Tribunal a writ petition was filed on 8th October, 1998 by  

respondent No.1 which was marked as Writ Petition No.30742 of 1998.  

One of the grounds taken in the said writ petition reads under :-

“30. The  Land  Tribunal  has  come  to  a  wrong  conclusion that the petitioner has no right to be the  owner  of  the  property  in  question.   In  view  of  Section  79(b)  read  with  Section  63(7),  the  education institutions can own the land.  Also by  Amendment Act of 1997 the power is given to the  Government to exempt education institutions and  industrial  concerns upto the  extent  of  200 acres.  Further  the  Land Tribunal  has  no power  to  take  any decision under Section 69(b) or 63(7) or any  other provisions of the Act to declare the document  as void document.  This is how the Land Tribunal  has exceeded their jurisdiction by saying that the  Vokkaligara  Sangha  is  not  the  owner  of  the  property  in  question.    There  is  a  competent  authority constituted under the Act to decide the  question, not the Land Tribunal.  This is how the  illegality was committed by the Land Tribunal by  granting occupancy rights.”

The prayer made in the said writ petition reads thus :-

“To  quash  the  impugned  order  of  the  Land  Tribunal, Bangalore North Taluk, Bangalore dated  18-7-1998  passed  in  LRF  No.680  :  1538/74-75  Annexure-D, by the issue of a writ of certiorari or  any other appropriate writ, order or direction as the  case may be.”

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14. The said writ petition, alongwith other writ petitions, however, was  

withdrawn unconditionally as would appear from the order sheet dated  

23rd March, 2001 which reads :-

“ Learned Advocate for the petitioners in all  these  writ  petitions  has  filed  a  memo  for  withdrawal to the effect that the petitioners may be  permitted to withdraw the above said writ petitions  in the interest  of  justice  and equity.   The memo  filed  by  the  learned  Advocate  for  the  petitioner  dated 23.3.2001 is placed on record.  All these writ  petitions are accordingly dismissed as withdrawn.”  

15. Respondent Nos. 2 to 4, however, made a representation before the  

Bangalore Development Authority that they were the real owners of the  

property  and  applied  for  forming  a  layout  in  the  scheduled  property.  

Permission was granted to form the layout and a Resolution being No.105  

of 1999 was passed in that behalf.  

16. Yet again a writ petition was filed by respondent No.1, which was  

marked  as  W.P.  No.28703  of  1999  challenging  the  Resolution  of  

Bangalore Development Authority.   The same was also withdrawn.  

17. It  is,  however,  contended  before  us  by  Mr.  K.K.  Venugopal,  

learned Senior Counsel appearing on behalf of the appellant, although no  

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record has been produced in support thereof, that another writ petition has  

been filed which is pending before the High Court.  

18. Respondent  No.1  filed  a  suit  in  the  Court  of  City  Civil  Judge,  

Bangalore  City,  which  was  marked  as  O.S.  No.  5796  of  2001,  for  a  

declaration that they are the owners in possession of the suit property in  

terms of the Deed of Trust executed by Puttaswamy.   The said plaint was  

rejected in terms of Order VII Rule 11 of the Code of Civil Procedure  

inter  alia  –  on  the  ground  of  non-joinder  of  necessary  parties;  

concealment  of  facts  with  regard  to  the  dismissal  of  the  proceedings  

before  the  Land  Tribunal  as  also  the  High  Court  and  orders  passed  

therein;  that  no  probate  was  obtained;  and  that  no  material  has  been  

placed on record that Survey No.15 was under self-occupation of Testator  

on 27th February, 1956 or on 19th October, 1978.

19. Respondent No.1 preferred an appeal thereagainst before the High  

Court  wherein  a  settlement  was  arrived  at.   By  the  said  settlement  

respondent No.1 restricted its claim to 6 acres and 20 guntas of land in  

Survey No.15 and declared that it  had no claim over 38 acres and 18  

guntas of land.  The High Court by an order dated 14th December, 2001  

allowed the said appeal and remitted the matter back to the trial court  

stating :-

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“Having  given  my anxious  consideration  to  that  submission made at the Bar, I am of the view that  the  better  course  would  be  to  set  aside  the  impugned  Judgment  and  Order  and  remit  the  matter back to the Trial Court reserving liberty for  the parties to seek disposal of the suit in terms of  the  compromise  filed  before  this  Court.  Counsel  for the parties had no objection even to that course  being followed.  In the circumstances and with the  consent  of  learned  for  the  parties,  I  allow  this  appeal  and  set  aside  the  judgment  and  Order  impugned and remit the matter  back to the Trial  Court with the direction that it shall examine the  question  of  passing  a  decree  in  terms  fo  the  compromise  arrived  at  between  the  parties  in  accordance  with  law..   In  case,  the  compromise  falls through or the Court does not for any reason  find it permissible to pas a decree in terms thereof,  the suit field by the appellants shall be proceeded  with on merits in accordance with law.”  

20. Appellant herein and some other members of respondent No.1 filed  

an application for impleadment contending that the said compromise had  

been entered into without the consent of the General Body.   

21. The said settlement  was accepted by the trial  court  by its  order  

dated 26th March, 2004 directing,  however,  that the requisite court  fee  

should be paid.  

22. Appellant preferred an appeal thereagainst.   The said appeal has  

been dismissed by the High Court by reason of the impugned order dated  

7th July, 2006 holding:-

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“10. It  is  not  the  plea  of  the  appellant  that  the  respondent  No.1  had  without  the  consent  or  approval of the Managing Committee entered into  this  compromise  agreement.   What  terms  of  compromise shall be stipulated in a suit is left to  the parties  and I do not find that  the respondent  No.1 was in any way misled or what the Managing  Committee had not consented to the terms.  Merely  because  one  of  the  members  of  the  association  does  not  agree  with  the  administration  or  any  decision  taken  by  the  Managing  Committee,  he  does not get any right to challenge the compromise  entered into by such association.  In that view of  the matter, I do not find that the appellant has any  locus standi to challenge the compromise entered  into by the respondent  No.1 with the respondent  Nos.2 to 4.”  

…… …..

13. For  the  above  said  reasons,  the  appeal  is  dismissed  with  no  order  as  to  cots.   The  respondents are directed to appear before the trial  Court on 26.7.2006, on which date, the trial Court  shall  proceed to determine the appropriate  Court  fee and fix up the time limit for payment of the  same.  

23. It  is,  however,  not  denied  or  disputed  that  ultimately  for  non-

payment of court fee the plaint had been rejected in terms of an Order VII  

Rule 11 (b) of the Code of Civil Procedure.   

24. Mr. K.K. Venugopal, learned senior counsel, appearing on behalf  

of the appellant contended :-

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i) That the High Court committed a serious error in passing the  

impugned  judgment  in  so  far  as  it  failed  to  take  into  

consideration that any person interested in a public trust may  

prefer an appeal being a ‘person aggrieved’.   

ii) The High Court and consequently the trial court committed a  

serious  error  in  so  far  as  they  failed  to  take  into  

consideration  that  a  Trust  is  not  entitled  to  enter  into  a  

compromise, save and except, for the benefit of Trust itself  

wherefor even Resolution of the Trustees is imperative.   

25. Mr. A.K. Ganguli, learned senior counsel appearing for respondent  

No.1 urged that this appeal has become infructuous.  Learned counsel,  

however, would support Mr. Venugopal in regard to his contention that  

the first appeal preferred by the appellant was maintainable.  

26. Mr.  Harish  Salve,  learned  senior  counsel,  on  the  other  hand,  

submitted  that  the  appellant  as  also  the  first  respondent  are  guilty  of  

suppression  of  facts  as  it  has  been  categorically  held  by  the  Land  

Tribunal that the Deed of Trust dated 19th October, 1978 was illegal being  

contrary to the provisions of the Karnataka Land Reforms Act.

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27. Appellant is a Member of the Executive Committee of respondent  

No.1-Trust.  Any action which, according to its members are illegal, can  

be subject matter of challenge before an appropriate forum.  

28. The  question  which  had  been  raised  by  the  appellant  in  his  

Memorandum of Appeal  is  as to whether  respondent No.1 could have  

entered into a settlement with respondent Nos. 2 to 4 in respect of the  

property of the Trust.   

29. In  a  given  case,  an  appeal  would  also  be  maintainable  at  the  

instance of a Executive Member of the Trust.   

This Court in  A.A. Gopalakrishnan v.  Cochin Devaswom Board,  

[(2007) 7 SCC 482], has held :-  

“11. Learned  counsel  for  Respondents  3  and  4  submitted that the settlement in the suit (OS No.  399 of 1998) was validly arrived at between them  (the  plaintiffs)  and  the  Devaswom  Board  (the  defendant),  that  the  Devaswom  Board  had  considered the proposal  after  taking legal  advice  and had duly passed a resolution to settle the suit.  It  is  further  submitted that  a decree having been  made in terms of the compromise and such decree  having  attained  finality,  it  cannot  be  questioned,  interfered  or  set  aside  at  the  instance  of  a  third  party in a writ proceeding. Order 23 Rule 3 CPC  deals with compromise of suits. Rule 3-A provides  

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that no suit  shall lie to set aside a decree on the  ground that the compromise on which the decree is  based was not  lawful.  We are  of  the  considered  view that the bar contained in Rule 3-A will not  come in the way of the High Court examining the  validity of a compromise decree, when allegations  of  fraud/collusion  are  made  against  a  statutory  authority  which  entered  into  such  compromise.  While it is true that decrees of civil courts which  have attained finality should not be interfered with  lightly, challenge to such compromise decrees by  an aggrieved devotee, who was not a party to the  suit, cannot be rejected, where fraud/collusion on  the  part  of  officers  of  a statutory board is  made  out. Further, when the High Court by order dated  9-9-1998 had directed the Board to take possession  of Sy. No. 1042/2 immediately from Respondents  3 and 4 in CDB No. 3 of 1996, in a complaint by  another devotee, it was improper for the Board to  enter into a settlement with Respondents 2 and 3,  giving  up  the  right,  title  and interest  in  Sy.  No.  1042/2, without the permission of the court which  passed  such  order.  Viewed  from any  angle,  the  compromise  decree  cannot  be  sustained  and  is  liable to be set aside.”

[Emphasis supplied]

Yet again in Swami Shankaranand (Dead) by LRs.  v.  Mahant Sri  

Sadguru Sarnanad and others, [(2008) 14 SCC 642], this Court has held :-

“11. In a case of this nature judiciary exercises  the jurisdiction of parens patriae and, thus, when  an objection is filed for grant of sanction in terms  of Section 92(1)(f) of the Code, the same should  receive serious consideration. The High Court thus  may  not  be  entirely  correct  in  opining  that  the  appellant  had  no  locus  standi  to  maintain  an  appeal. It is true that the appellant is said to be in-

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charge of a Math situated at Varanasi. However, it  is  contended  that  he  really  stays  at  Mirzapur.  According to the respondents, he has nothing to do  with the Math in question. But, that is to say, no  person being a third party to the application, would  not be a 'person aggrieved', in a case of this nature  cannot  be  sustained,  if  the  appellant  establishes  that he is otherwise interested in the welfare of the  Trust.”

30. However,  in  our  opinion,  it  is  not  necessary  to  go  into  the  

aforementioned question as the suit filed by respondent No.1 has been  

dismissed for non-payment of court fee.  No decree has thus been drawn  

up incorporating  the  terms  of  settlement  entered into  by  and between  

respondent No.1 on one hand and respondent Nos. 2 to 4 on the other.   

31. There cannot, however, be any doubt whatsoever that in the event a  

case is made out as regards mal-administration of the Trust or otherwise  

appropriate remedies  can be availed.  An originating summons can be  

taken out, if otherwise it is permissible in law before the Original Side of  

the High Court.  

32. We,  however,  must  also  place  on  record  that  we have  also  not  

applied  our  mind  as  to  whether  the  order  of  the  Land  Tribunal  has  

attained finality and whether the Land Tribunal had any jurisdiction to  

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deal with the question of interpretation of the Original Will and/or the  

execution of the subsequent Trust Deed creating respondent No.1

33. We would also place on record that it is also not necessary for us to  

consider the effect of withdrawal of Writ Petition Nos.30742 of 1998 and  

28703 of 1999 at this stage.  

34. With the aforementioned observations this appeal is disposed of.  

No costs.  

…………………………..J.        [ S.B. SINHA ]

…………………………..J.      [ DEEPAK VERMA ]

New Delhi. August 07, 2009

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