The Hon’ble Mrs. Justice B.S. INDRAKALA Regular First Appeal No.1713...

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

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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)

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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,

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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:


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.

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a. Smt.Neelamma Hiremath,

Aged about 63 years, W/o Late C.R.Hiremath.




All are 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.

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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,



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,

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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,



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:


Since dead by his LRs.

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a. Smt.Neelamma Hiremath, Aged about 63 years, W/o Late C.R.Hiremath.




All are 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.


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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:

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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

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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

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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.

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

88

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

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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

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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”.

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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

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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

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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

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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

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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.

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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

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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:

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(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

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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.

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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)

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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

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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.

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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

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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

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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.

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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/-

The Hon’ble Mrs. Justice B.S. INDRAKALA Regular First Appeal No.1713...

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Transcript of The Hon’ble Mrs. Justice B.S. INDRAKALA Regular First Appeal No.1713...