M S MALLIAH Vs. GOWRAMMA

JUDGEMENT

(1.) unsuccessful plaintiffs are the appellants. Claiming to be the members of the sadar community (sadhu matha) they instituted the suit in a representative capacity and under Section 92, CPC after obtaining the consent of the Advocate general. They alleged that property bearing door No. 270, old tharagupeth (godown) in Bangalore city, belongs to a public trust having been created by the award of the arbitrator, on 17th january, 1898. (this is the date on which certain disputes, hereafter narrated, were referred to arbitrator and the award is actually passed on 7th february, 1898). They also alleged that the terms of the award have been accepted and they have been acted upon. Their further plea was it was a perpetual endowment and its object was "anna daana" (free feeding), which was a public purpose of a charitable and religious nature. By the said award, which was registered, javaraya lingappa, mandi hariyappa and kalappa were appointed as trustees. All the three trustees have expired. The last one to die was kalappa who expired on 5-11-1967. It was alleged that he had purported to transfer the property to "sadhu mathada sangha", society registered under the societies Registration Act, however, fact remains that he had bequeathed the property in favour of his wife gowramma (respondent). On these grounds it was alleged that there was a breach of express trust. Hence they prayed for the following reliefs:

(2.) properties including suit property were bequeathed by kallappa in favour of his wife by registered will dated 7-6-1965. In the will it was stated that under a partition deed registered on 7th february, 1989 (document No. 1164, book I of volume 257, pages 219 to 242) these items were allotted to the testator. To avoid confusion it has to be clarified that this partition deed which is not produced is different from the arbitrator's award of the same date which is also registered on that date.

(3.) mandi hariyanna, who is named as one of the trustees, was occupying the suit premises as a tenant running a business in the name and style of M/s. Mandi hariyanna and sons. Gowramma (respondent-defendant) in whose favour the property had been bequeathed by her husband kalappa, as landlord, initiated eviction proceedings in h.r.c. No. 1373/1971, against mandi hariyanna and few other tenants. In those proceedings the tenants contended that gowramma is not the landlord, as the property had been dedicated to a charitable trust. Consequently a preliminary issue was framed regarding the relationship of landlord and tenant. M.h. raju, son of mandi hariyanna was examined as rw-2. In his statement he stated that as per the arbitrator's award this property was set apart for charitable purposes and it was a trust property; the then surviving trustees namely, his father and kalappa (husband of gowramma-respondent who initiated eviction proceedings) had to execute the trust deed. He admitted that rents were being sent by cheque to gowramma, who admittedly was not a trustee.