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PETITIONER: M.K. RAPPAI & ORS.

       Vs.

RESPONDENT: JOHN AND ORS.

DATE OF JUDGMENT: 28/08/1969

BENCH:

ACT: Practice  and  Procedure-Suit for appointment  of  trustees, filed  without  complying with provisions of  s.  92,  Civil Procedure  Code-Right declared, to be appointed as  trustees when  properly  framed suit under  section  filed-Propriety- Declaration,  if barred by s. 42, Specific Relief Act (1  of 1877) or s. 34 of Specific Relief Act (47 of 1963).

HEADNOTE: By  a  deed  of settlement, the  settlor  appointed  besides himself,  the father of the first plaintiff, the  father  of the  second plaintiff, and defendants 1 to 3 and 10 and  11, as. trustees of an Educational and Charitable Trust. On  the resignation  of  the  fathers of  the  two  plaintiffs,  the remaining trustees appointed defendants 4 to 9 as  trustees. The  plaintiffs  flied  a suit  making  allegations  against defendants 1 to 9 and claimed that they should be  appointed as trustees.  The High Court, in ’appeal, gave a declaration to the effect that the plaintiffs were; next in the line  of succession, that they were entitled to claim appointment  as trustees, but that such appointment could be made only in  a properly  framed suit after complying with the  requirements of  s. 92, Civil Procedure Code.  The  plaintiffs  thereupon filed  a  fresh  suit under s.  92,  C.P.C.  Meanwhile,  the defendants in the ,earlier suit filed an appeal against  the judgment of the High Court, to this Court.    HELD:  The suit was for appointment of the plaintiffs  as trustees  and  fell within the provisions of s.  92,  C.P.C. Therefore,  the  judgment  of  the  High  Court  giving  the plaintiffs  the right to be appointed as trustees, when  the provisions of the section were not complied with, should  be set aside. [127 H; 128 E]     (a) If the appointment fell within the vice of s. 92 any decision  giving  the plaintiffs the right to  be  appointed will  be prejudging the question and would be an  impediment as  far as the defendants are concerned, in questioning,  in the second suit, the right of the plaintiffs to be appointed as trustees. [128 A--B]     (b) If the right to be appointed as trustees were to  be granted 10 the plaintiffs in the absence of compliance  with the  provisions  of  the  section, it  would  amount  to  an indirect way of giving what was directly prohibited. [128 B]     (c)  If the declaration were ’allowed to stand it  would operate  as  res judicata and it would not be  open  to  the defendants  to  question it in the  subsequent  proceedings. flied for the same relief after compliance with the section. [128 B--C]     (d)   A   hare   declaration  of   the   right   without consequential relief will be within the mischief of s. 42 of

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the  Specific  Relief  Act, 1877 or s. 34  of  the  Specific Relief Act, 1963. [128 D--E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1787 of 1966.     Appeal  from the judgment and decree dated May 18,  1964 of the Kerala High Court in Appeal Suit No. 591 of 1963. 125 D. Narsaraju and  A. S. Nambiar, for the appellants.     W.S.  Badingay,  R.  Mahalingier  and  Ganpat  Rai,  for respondents Nos. 1 and 2. The Judgment of the Court was delivered by     Ray,  J.  This is an appeal from the judgment  dated  18 May, 1964 of the High Court of Kerala allowing the appeal in part  and  allowing  declaration  to  the  effect  that  the plaintiffs are next in the line of succession to V.L.  Lazar and  T.V.  John respectively and that they are  entitled  to claim an appointment as trustees.  The High Court,  however, concluded by saying that such appointment could be made in a properly  framed suit under section 92 of the Code of  Civil Procedure.     Counsel for the appellants contended that the High Court was in error in making the declaration particularly when the High Court said that such appointment could be made only  in a properly framed suit under section 92 of the Code.     In order to appreciate the matters in controversy it  is necessary to refer to a few facts and the frame of the suit.     The plaintiffs filed this suit in 1961 for a declaration that  defendants numbered 4 to 9 were "trespassers"  on  the trust  and  that  all acts  and  proceedings  of  defendants numbered 1 to 9 done since the resignation of T.V. John  and V.L. Lazar in respect of the administration of the trust are invalid  and  void;  that the  plaintiffs  be  appointed  as trustees;  that defendants numbered 10 to 11 be declared  to be,  and  to  have  always been,  lawful  trustees  and  for injunction  restraining  defendants  numbered 4  to  9  from interfering  with  the trust; that an enquiry be  made  into their  administration and accounts, recovery  of  properties and  funds misused, wasted, disbursed or  appropriated,  and that  defendant numbered 1 to 3 be declared to be  unfit  to continue as trustees.     There  was a deed of settlement dated 20 December,  1953 executed  by  a Christian T.V. Kochuvareed  called  "Thattil Kochuvareed  Educational and Charitable Trust".  Apart  from the  settlor, V.L. Lazar father of the first  plaintiff  and T.V.  John  father of the second  plaintiff  and  defendants numbered  1 to 3, 10 and 11 were trustees.  On 27 May,  1957 V.L. Lazar resigned from the trusteeship.  On 12 March, 1960 T.V.  John followed suit.  The settlor and the rest  of  the trustees  appointed  six  more  trustees  being   defendants numbered 4 to 9 inclusive.  The settlor Kochuvareed died  on 26 July, 1961.     On  28  November,  1961 respondents  numbered  1  and  2 namely, John son of V.L. Lazar and Varghese son of T.V. John the 126 plaintiffs filed suit O.S. No. 115 of 1961  claiming,  inter alia, that the plaintiffs be appointed as trustees.     At  the  trial  two  preliminary  issues  were   framed: Whether the suit was maintainable due to want of  compliance with  section 92 of the Code of Civil Procedure and  whether the  Court  had jurisdiction to try this  suit  relating  to trust. The trial Court came to the conclusion that the  suit

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was   within  the  mischief  of  non-compliance   with   the provisions  of  section 92 of the Code of  Civil  Procedure. The  trial  Court on 12 March, 1962 dismissed the  suit  and held  that  the suit had to be  instituted  after  obtaining sanction under section 92 of the Code.  The plaintiffs filed an  appeal.   On appeal the High Court on  20  August,  1962 allowed  the appeal in part and set aside the  dismissal  of the suit in so far as it related to prayer ’e’ and  remanded the  suit  to the trial Court for trial in respect  of  that claim.     The  trial Court on remand by judgment dated 23  August, 1963  held that the suit as flamed was maintainable and  the plaintiffs were entitled to be declared as rightful trustees but  the second plaintiff would have to exercise  rights  as trustee only on attaining majority. Prayer ’e’ in the plaint was as follows :--                      "That plaintiffs be appointed to  their               rightful  place  as trustees  and  the  second               plaintiff  being a minor now, be permitted  to               exercise   his   rights  and   safeguard   his               interests  until he attains majority,  through               his  ’Next Friend, namely his father".     The  appellants,  viz.,  defendants  numbered  4  to   9 preferred an appeal.  The High Court on 18 May, 1964 allowed the appeal in part and altered the declaration to the effect that the plaintiffs were next in the line of succession  and that  they were entitled to claim appointment  as  trustees, but  such  appointment could be only in  a  properly  framed suit.     Counsel for the appellants contended that prayer ’e’ was within  the  mischief  of section 92 of the  Code  of  Civil Procedure.    It  was  further  said  that  the   plaintiffs (respondents 1 and 2) filed a fresh suit O.S. No. 1 of  1965 in the District Court, Trichur under section 92 of the  Code of  Civil  Procedure  praying, inter alia,  for  reliefs  of removal of defendants numbered 4 to 9 and appointment of the plaintiffs as trustees in place of their respective  fathers who  resigned  from  such  office  and  for  other  reliefs. Counsel for the appellants contended that the finding in the present  appeal  that  the plaintiffs  were  entitled  to  a declaration  for appointment would constitute  res  judicata unless the same finding was set aside  and 127 the  matter was kept entirely open in the new suit filed  by respondents 1 and 2.     Counsel for the respondents contended that the  decision of  the High Court could be upheld because all that it  said was  that  the plaintiffs were entitled to a right  and  the question  of  appointment would be canvassed  in  the  suit. This  contention is unacceptable because a suit for  a  bare declaration  of right without further relief for  possession and  other  reliefs  as the facts  and  circumstances  would require is not supportable.     The  provisions  of  section 92 of  the  Code  of  Civil Procedure indicate, inter alia, that a suit for  appointment of new  trustees is competent only after compliance with the provisions  of  section  92 of the  Code.   The  plaintiffs, namely,  respondents  1 and 2 in the present  case,  alleged that   defendants  numbered  4  to  9  were  strangers   and "trespassers"  in relation to the trust, and that the  other defendants  illegally introduced defendants numbered 4 to  9 into the Board of Trustees.  The plaintiffs further  alleged that  defendants  numbered 1 to 9 were guilty of  waste  and misappropriation.  The plaintiffs further alleged that  they had exclusive right to be appointed trustees.  Section 92 of

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the  Code  of  Civil Procedure prohibits  a  plaintiff  from obtaining relief of appointment of new trustees without  the compliance  with  the provision of the said section  of  the Code.  The only question is whether prayer ’e’ in the plaint can be said to be one for appointment of new trustees.   The plaintiffs  asked for appointment.  It was said  by  counsel for  the respondents that the plaintiffs under the  deed  of trust  could be appointed trustees.  Reliance was placed  on clause  (6) of the deed of trust which, inter  alia,  stated that  in the case of a vacancy, the remaining trustees  were to appoint a new trustee.  It, therefore, follows that  even under  clause  (6)  of  the deed of trust  it  would  be  an appointment  of new trustees.  The trustees in  the  present case   did  not  appoint  new  trustees.   The   plaintiffs, therefore,  came  to court.  The reason why  the  plaintiffs sought  the  aid  of  the  Court  is  the   appointment   of trustees.  It  is only because the other  trustees  did  not appoint  a new trustee that the plaintiffs took recourse  to the institution of the suit for the appointment of trustees. Further,  unless the defendants are removed there cannot  be an appointment of new trustees.  We are, therefore, of opion that prayer ’e’ in the present case, viz. the plaintiffs  be appointed as trustees falls within the provisions of section 92 of the Code.     If as we held that the appointment of new trustees falls within  section 92 of the Code can it yet be said  that  the plaintiffs  will be entitled to a bare declaration of  their right  to  be  appointed.  In the first place,  it  will  be granting them the right to be appointed 128 which  itself  is  the foundation of  appointment.   If  the appointment fails within the vice of section 92 any decision giving  them the right "to be appointed will  be  prejudging the  question  and  will  be an impediment  as  far  as  the defendants  are  concerned in questioning the right  of  the plaintiffs to be appointed as trustees. Secondly, it is well settled that if any matter is directly prohibited, the  same cannot  be  achieved  indirectly.  The  appointment  of  new trustees  is  prohibited’ in the absence of  the  compliance with  the provisions of section 92 of the Code.  If a  right is granted to the plaintiffs to be appointed as trustees  it will amount to an indirect way of giving the plaintiffs  the relief of the right to be appointed. It will be particularly so   because  the  right  will  be  res-inclusa  and   will, therefore,  be res judicata.  The right will not be open  to be  questioned in subsequent proceedings.  Thirdly,  if  the appointment of new trustees cannot be proceeded with in  the absence  of compliance with the provisions of section 92  of the  Code  and  when  a suit  has  been  instituted  by  the plaintiffs for the  self-same reliefs after compliance  with section 92 of the Code it is all the more necessary that the entire  question  of appointment which  presupposes  as  its foundation the right to be appointed should be gone into the newly  instituted  suit in 1965 to which reference  is  made earlier.   Fourthly,  a bare declaration of  right  will  be within  the  mischief of section 42 of the  Specific  Relief Act, 1877 and section 34 of the Specific Relief Act, 1963.     We  are, therefore, of opinion that the judgment of  the High  Court giving the plaintiffs the right to be  appointed trustees  should  be  set  aside.  It  is  made  clear  that contentions  of  the rival parties in the  newly  instituted suit are left open.  The finding of the High Court and  the: declaration  granted by the High Court are both  set  aside. The suit is, therefore, dismissed.     For  these  reasons,  the  appeal  is  accepted  and  is

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allowed.  The appellants will be entitled to costs. V.P.S.                                                Appeal allowed. 129