INSTITUTE OF EDUCATION SARASWATHIPURAM MYSORE Vs. SOWCAR A SIDDANNA ENDOWMENT AND K H RAMAIAH MEMORIAL ENDOWMENT TRUST MYSORE

JUDGEMENT

(1.) THESE Regular Second Appeals are filed by the defendant 3 and defendants 1 and 2 respectively, aggrieved of the impugned judgment and decrees passed by the First Additional District Judge, Mysore in R. A. Nos. 45 and 46/1990 in dismissing the appeals and confirming the judgment and decree of the First Additional Civil Judge, Mysore in O. S. No. 100/174 dated 9-12-1982, framing substantial questions of law in both the Memorandum of appeals filed by the defendants urging various contentions. They have prayed to allow the appeals. R. A. Nos. 45 and 46/90 by setting aside the judgment and decree passed by the First Additional Civil Judge, Mysore in O. S. No. 100/74 dated 9-12-1982.

(2.) THE rank of the parties is referred to in this judgment as has been referred to in the trial Court for the sake of convenience.

(3.) THE plaintiffs filed a suit for declaration to declare that Sri. Sowcar A. Siddanna Endowment and Sri. K. H. Ramaiah Memorial Endowment Trust is the owner of the suit schedule property and further for grant of consequential relief of possession of suit item No. 1 to plaintiff from defendants 3 and 4 and for further enquiry under Order 20, Rule 12, CPC regarding mesne profits in respect of the suit schedule property inter alia contending that the suit properties originally belonged to Sowcar S. Channaiah S/o late Sowcar A. Siddanna who was residing in Mysore City. He died on 20-11-1971. It is the case of the plaintiffs that late Sowcar S. Channaiah had endowed the suit properties and created a trust under the registered deed of declaration of trust dated 1-12-1937 with a view to achieve the objects, which are incorporated in the trust deed. It is stated that he has divested his interest upon the properties in favour of plaintiff Trust by complying with the legal requirements as required under the provisions of Trust Act for creation of a valid Trust, as it was his intention to create a Trust. The beneficiary of the Trust is one of the Trust properties and the property was transferred in favour of the trustee. The Trust is being managed by its trustees on its behalf who are the plaintiffs 1 (a) to (e ). Therefore, it is stated that attachment of the suit schedule property by the Income-tax Department for realisation of the arrears of income-tax due from late Sri Sowcar S. Channaiah who was a defaulter to the department and that the proclamation is not in accordance with the Income-tax Rules and procedure prescribed for recovery of arrears of tax due to it as per Schedule 2 to the Income-tax Act, 1961 (in short "act, 1961" ). The second defendant sold the property suit item No. 2 in public auction held on 6-2-1963 and the fifth defendant purchased it in the sale. The defendants 3 and 4 have taken possession of the suit item No. 1 and fifth defendant has taken possession of suit item No. 2 and further pleaded that the said defendants have not derived any interest and title upon the suit properties. Since the said properties do not belong to late Sri. Sowcar S. Chennaiah, he had no subsisting right upon the properties as he had divested the same in favour of plaintiff Trust. Further pleaded that the plaintiff endowment trust was being managed by 5 trustees whose names are mentioned in the deed of Trust and on account of death of two trustees namely H. C. Dasappa and Gujjegowda, those vacancies were filled up by nominating Tulasi Dasappa and P. M. Chikkaboraiah. It is the case of the plaintiffs that as soon as the authorities of the plaintiff-Trust came to know about the sale of the suit properties by the second defendant, it has passed the resolution dated 29-9-1973 authorising its Secretary to take immediate action to safeguard the interests of its suit properties. Thereupon, notices were issued to the defendants 3 to 5 calling upon them to deliver possession of the same.