ANANTHA THEERTHA Vs. KUMARASWAMI

JUDGEMENT

(1.) This appeal arises out of a suit brought by a sanyasin and a layman as two persons interested in the Trust after obtaining the sanction of the Diwan of the erstwhile Travancore State under S. 72 of the Travancore Code of Civil Procedure which corresponds to S.92 of the Indian Code. The suit was filed in the District Court of Trivandrum and was numbered there as O.S. 83 of 1113. It was afterwards withdrawn by the erstwhile Travancore High Court for trial and disposal therein in the exercise of its extraordinary civil jurisdiction and was given a new number as O.S. No. 2/1119. A learned Judge of the High Court tried the case and after an elaborate enquiry wherein a large volume of oral and documentary evidence was adduced, disposed of the matter by dismissing the suit on 14th Kanni 1120. The 1st defendant died pending the suit and two persons were sought to be impleaded in his stead to represent the Sree Narayana Dharma Sanghom as whose President the 1st defendant had been made a party. There was a competition between defendants 8 and 9 for the Presidentship. That dispute was tried by the learned Judge who tried the suit but he was not able to come to a conclusion in favour of either of them and therefore he directed the continuance of both in array of parties. In the judgment, it is found that the 9th defendant is the representative of that institution and not the 8th. It appears that the 8th defendant has filed another suit in the District Court to establish his claim to Presidentship and that that suit is pending.

(2.) In the course of the suit the other members of the Dharma Sanghom got themselves impleaded as defendants. The 8th defendant is the appellant and the plaintiffs and the other surviving defendants are the respondents.

(3.) The learned Judge has written an elaborate judgment in the case which runs to 39 pages in print. The ground for the dismissal of the suit is stated by the learned Judge in paragraphs 26 and 28 of his judgment. He finds in para 26 that the properties and institutions acquired by Narayana Guru now in the possession of the Sanghom and those acquired by the Sanghom do not constitute a public trust of a religious and charitable nature. On the other hand, he held that the evidence shows that they belong absolutely to the Sri Narayana Dharma Sanghom. He starts paragraph 28 thus:- Even on the assumption that there is a trust as alleged in the plaint, it appears to me that the two plaintiffs cannot be characterised as persons interested in the trust, enabling them to institute the suit under S.72 C.P.C. He concludes the paragraph thus:- If the scope of the suit had been restricted to temples included in the alleged trust, it might be possible for the plaintiffs to contend that a scheme suit like the present one is maintainable with respect to the temples on the ground that they worship therein. The suit however is not instituted in that way. In the way in which it has been conceived and filed, the plaintiffs cannot be held competent to maintain it, unless they prove that they have interest in the entire foundation, of which the Sanghom is alleged to be the trustee.