Monday, 1 July 2019

Whether every suit relating to public trust should be filed U/S 92 of CPC?

 It is argued by the learned counsel for the respondents that
if the appellants wanted any relief against the respondents complaining
of a breach of trust, their remedy should have been a suit under
Section 92 of the Code. In answer to this contention, learned counsel
replied that the appellants do not seek any of the reliefs enumerated in
Section 92(1) (a) to (h) of the Code. Settled legal position is that any
and every suit relating to a public trust need not be under Section 92 of
the Code, unless the reliefs claimed therein do fall within the matters
enumerated in Section 92(1) of the Code.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE A.HARIPRASAD
&
MRS. JUSTICE SHIRCY V.

RFA.No. 360 of 2018

P.E. THOMAS EACEY, Vs MR.ABRAHAM JOSE ROCKY,

Dated this the 21st day of June, 2019




Paradesi Synagogue is the oldest active Synagogue located at
Jew Town, Cochin (at present known as 'Kochi'). It was built in 1568
for catering the religious needs of Cochin Jewish Community in the
erstwhile kingdom of Cochin. Admittedly, this Synagogue is a religious
trust. The appellants herein, the plaintiffs before trial court, would
contend that the plaint schedule land and building had been dedicated
to the Synagogue and it therefore forms part of a religious charitable
trust of a public nature. They would contend that an assignment deed
obtained by the 1st respondent from respondents 2 and 3 (who are the
defendants in the suit) in respect of the plaint schedule property is void
and it has to be set aside. Court below, by the impugned order passed
on an interlocutory application, upheld the plea of the respondents that
the appellants have no cause of action against them for instituting the
suit and therefore the plaint was rejected by invoking Order VII Rule
R.F.A.No.360 of 2018 4
11(a) of the Code of Civil Procedure, 1908 (in short, "the Code"). That
order is under challenge in this appeal.
2. Fundamental facts, relevant for a proper decision, are the
following: Plaint schedule land and buildings thereon originally
belonged to one Sassoon Hallegua @ Sassoon Mudaliyar who had
obtained the same in a partition of the year 1124 M.E. While so,
Sassoon Hallegua executed a registered Will bearing No.27 of 1966 of
SRO, Kochi on 05.09.1966. He declared in the Will that the plaint
schedule property, along with certain other items, be vested upon
"Cochin Synagogue", also known as "Kochi White Jew Synagogue"
after his death. It is also specifically set out in the Will that the
properties described therein, set apart to the Cochin Synagogue, would
have to be administered by a trust to be formed by the persons named
in the Will and the income generated therefrom should be utilized for
the specific purposes stated therein. Although a life interest was
provided to his wife, it is specifically stated that after formation of the
trust, the property would have to be taken over by the said trust from
his wife. Sassoon Hallegua died on 07.09.1971 and thereupon his Will
became operative. Later, his wife also died on 15.06.2015. According
to the appellants, in terms of the Will executed by Sassoon Hallegua,
the plaint schedule property became vested in the Cochin Synagogue
and thereafter a trust was created on 30.03.2011 as per document
No.96 of 2011 of SRO, Kochi, as decided by the testator, with a name
R.F.A.No.360 of 2018 5
"Cochin Synagogue Trust" for the effective management and
administration of the properties belonging to the Synagogue, including
the plaint schedule property. Husband of the 3rd defendant, Joseph
Hallegua was made the managing trustee by virtue of the position as
kaikkaran/karanavan of the Cochin Synagogue. Accordingly, the plaint
schedule property has become a property of the Cochin Synagogue by
virtue of the provisions in the Will as well as in the deed of trust.
3. The appellants are tenants of various shoprooms in the
building situated in the plaint schedule property. According to the
appellants, apart from the tenancy right that they hold in respect of the
property, they are also beneficiaries of the trust, going by the clear
expressions in the trust deed. The deed of trust specifically spells out
that creation of the trust is for preservation and maintenance of
movable and immovable assets of the Cochin Synagogue, which
includes the plaint schedule property as well. Although it is provided in
the trust deed that the principal beneficiaries of the trust would be the
jewish families living in Synagogue lane, Mattanchery, it is made clear
that their children, grandchildren, great grandchildren, et.al. who live
overseas in Israel, United States, Canada and other countries would
also be defacto beneficiaries. It is further stated that benefits of the said
trust would be made available to jewish visitors to India too. It has been
specifically stated that non-jewish residents of Kerala and India and
non-jewish visitors would also gain from the trust, since the Synagogue
R.F.A.No.360 of 2018 6
and Jewish culture and heritage should be preserved for their benefit
in the event that no Jewish person existed in Cochin at any given time.
It is thus clear that the beneficiaries of the said trust are innumerable.
The appellants therefore would contend that they are entitled to
challenge the illegal alienation of the property effected by respondents
2 and 3 in favour of the 1st respondent.
4. It is seen from the records that the defendants, even
before filing a written statement, filed an interlocutory application
requesting the court below to reject the plaint as it, according to them,
did not reveal any cause of action. Accepting the plea raised by the
respondents, the court below, on finding that the 1st respondent did not
take any step to evict the appellants from the tenanted buildings, took a
view that the appellants are not entitled to file any suit, leave alone a
suit of the present nature. Court below expressed a doubt as to
whether a tenant has a right to approach a civil court for setting aside
an assignment deed executed by his landlord in favour of a third
person. It observed that the tenants cannot rush to court for the simple
reason that the erstwhile landlord has executed an assignment deed in
favour of a third person, when the assignee landlord has not taken any
step to evict them.
5. Heard the learned counsel for the appellants and
contesting respondents.
6. Learned counsel for the appellants contended that the
R.F.A.No.360 of 2018 7
court below committed a grave error in finding that the plaint did not
disclose a cause of action. According to him, the reasons stated for
rejection of the plaint are illegal and opposed to the settled principles of
law. As pointed out earlier, the court below rejected the plaint for the
alleged non-disclosure of a cause of action on finding that the tenants
have no right to initiate a legal action against the transferor and
transferee landlords as long as there was no threat of eviction. This
view, according to the learned counsel, is legally incorrect. Further, the
plaint should not have been rejected at the threshold for the reasons
mentioned by the lower court because, if at all, it can be held so only
after a full-fledged trial.
7. Per contra, the learned counsel appearing for the 1st
respondent contended that the trial court's reasons for rejecting the
plaint are proper and legal and no interference is required. Besides,
the trial court rightly invoked the principles in Section 116 of the Indian
Evidence Act, 1872 (in short, “the Evidence Act”) to hold that the
appellants, who are tenants under the respondents, shall not be
permitted to deny, during continuance of the tenancy, the title of the
landlord to the buildings in question. Learned counsel for the
respondents also challenged the quantum of court fee paid in this
appeal, contending that directions in Section 52 of the Kerala Court
Fees and Suits Valuation Act, 1959 (in short, “the Court Fees Act”)
have not been complied with.
R.F.A.No.360 of 2018 8
8. Indisputable is the proposition that rejection of a plaint
under Order VII Rule 11 of the Code is a deemed decree by virtue of
the definition of “decree” in Section 2(2) of the Code. It cannot be
denied that rejection of a plaint is reckoned or presumed to be a decree
by a legal fiction. From the definition of decree, it will be clear that it is a
formal expression of an adjudication which, so far as regards the court
expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit. It is to be
remembered that the rejection of plaint, under Order VII Rule 11 of the
Code, need not be after a full-fledged trial under all circumstances. In
otherwords, when a suit appears from the statements in the plaint to be
barred by any law or where it is not filed in duplicate, the court has
power to reject the plaint without actual trial. In such circumstances, no
adjudication takes place. But for the deeming provision in Section 2(2)
of the Code, rejection of plaint under the above circumstances would
not have been a decree. Axiomatic is the principle that deeming a thing
as another will be required only if both are legally and factually different
entities. In fact, if both things are same or similar in all respects, no
deeming is required. In the absence of any deeming provision in
Section 2(2) of the Code, rejection of a plaint would not have been a
decree capable of being challenged in appeal by invoking Section 96
and Order XLI of the Code. Although rejection of plaint is deemed to be
a decree, it remains inexecutable.
R.F.A.No.360 of 2018 9
9. Learned counsel for the appellants contended that the
dispute raised by the respondents regarding insufficiency of court fee
cannot hold good. According to him, even if the appellants succeed in
the appeal, they will not get any tangible benefit, except getting a
direction to the court below to try and dispose of the case on merits. It
is therefore argued that the mandate of Section 52 of the Court Fees
Act that fee payable in an appeal shall be the same as the fee that
would be payable in the court of first instance on the subject matter of
appeal shall not be applied to appeals filed against rejection of plaint.
10. A Division Bench of this Court had occasion to consider a
similar question in Beena K.G. v. M/s.Keshavam (2016 (3) KHC 677).
Reckoning the fact that it would not be correct to lay down that
rejection of a plaint is such a complete and final determination of the
rights of parties, there is no room, in any appeal from such an order, for
the proposition that the subject matter in the appeal is the same as
subject matter of the original suit. After discussing the legal intricacies,
the Bench held that in such cases the court fee payable in the appeal
would fall under Schedule II Article 3(iii)(A)(1) of the Court Fees Act.
We find no reason to differ from the view taken by this Court in Beena's
case. Hence the above contention of the respondents should fail.
11. The legal concept called “cause of action” is
unquestionably a bundle of facts, which, taken with the law applicable
to them, gives the plaintiff a right to relief against the defendant.
R.F.A.No.360 of 2018 10
Certainly, it must take in an objectionable act on the part of the
defendant, in the absence of which no cause of action can possibly
accrue to the plaintiff. Unchallengeable is the proposition that cause of
action is not limited to the actual infringement of the right sued on, but
includes all the material facts on which it is founded. However, it does
not comprise evidence necessary to prove such facts. Still, it takes in
every fact enabling the plaintiff to obtain a decree. By cause of action, it
is meant that every fact, which, if traversed, would be necessary for the
plaintiff to prove in order to support his right to get a judgment from the
court; in otherwords, a bundle of facts which itself is necessary for the
plaintiff to prove in order to succeed in the suit.
12. Learned counsel for the respondents placed heavy
reliance on A.B.C. Laminart Pvt. Ltd. v. A.P.Agencies ((1989) 2 SCC
163) to contend that the appellants, by their own showing in the plaint,
have no cause of action, since there is no actual or attempted invasion
of their rights. Placing reliance on Smt.Patasibai and others v.
Ratanlal (JT 1990 (3) SC 68), the learned counsel contended that the
trial court is justified in rejecting the plaint because even on the
admitted facts appearing from the records, the appellants were unable
to show that all or any of the averments in the plaint disclosed a cause
of action giving rise to a triable issue. In such a situation, it is held by
the Supreme Court in Smt.Patasibai's case that rejection of plaint is
proper.
R.F.A.No.360 of 2018 11
13. Reliance is also placed on Nesammal v. Edward (1999
AIHC 470) by the learned counsel for the respondents to contend that
provisions under Order VII Rule 11 of the Code are not exhaustive and
court has inherent power to see that vexatious litigations are not
allowed to take or consume time of the court. We are aware that such
general propositions, settled by long line of binding precedents, are to
be respected. But, if they are applicable herein is the question.
14. Learned counsel for the respondents cited Raghwendra
Sharan Singh v. Ram Prasanna Singh (AIR 2019 SC 1430) to assert
a proposition that merely because a plaint is cleverly drafted to appear
to reveal a cause of action, the plaint should be rejected, if actually it
does not have a cause of action on a consideration of the entire
averments in it. Decision rendered by the Supreme Court in
Raghwendra Sharan Singh was dealing with a case of rejection of a
plaint under Order VII Rule 11(d) of the Code on the ground of
limitation in a suit filed more than 22 years after the execution of a
registered gift deed, praying for a declaration that the gift deed in
favour of the defendant was a sham transaction and not binding on the
plaintiff. The Supreme Court noticed that the plaintiff therein did not
pray for any declaration or relief of setting aside the gift deed as in that
case the suit would have been barred by limitation under Article 59 of
the Limitation Act, 1963. In that context, the Supreme Court made the
observations therein. Facts in the case on our hand are clearly different
R.F.A.No.360 of 2018 12
from those dealt with in Raghwendra Sharan Singh's case.
15. Learned counsel for the 1st respondent relied on Church
of Christ Charitable Trust & Educational Charitable Society v.
Ponniamman Educational Trust ((2012) 8 SCC 706) to contend that
the principles regarding rejection of plaint stated therein should be
applied to this case. We are afraid, there are striking differences in the
facts in Church of Christ Charitable Trust & Educational Charitable
Society and this case. The reasons mentioned by the Supreme Court
in the facts of that case cannot be imported to this case to justify the
rejection of plaint at the threshold.
16. We have mentioned in the foregone paragraphs about the
import of the expression “cause of action”. If we apply the legal
principles regarding cause of action, deducible from binding
precedents, to the facts borne out from the averments in the plaint read
in its entirety, we are of the view that this is not a case where the trial
court should have exercised its jurisdiction under Order VII Rule 11(a)
of the Code to reject the plaint at its inception because most of the
issues raised by the respondents in the interlocutory application filed
for rejecting the plaint could be answered only after trial of the case.
17. Principle that a plaint can be rejected only on the basis of
what is contained in the entire plaint, read as a whole, and not anything
else, including the written statement is no more res integra (see Mayar
(H.K.) Ltd. and others v. Owners and Parties, Vessel M.V.Fortune
R.F.A.No.360 of 2018 13
Express and others (AIR 2006 SC 1828) and Central Provident
Fund Commissioner, New Delhi and others v. Lala J.R. Education
Society and others ((2016 (14) SCC 679).
18. It is the case of the appellants in the plaint that they are not
only tenants of the buildings belonging to a religious charitable trust,
but also beneficiaries of the trust. Stated precisely, apart from their
tenancy rights, whether they can be regarded as beneficiaries of the
trust is a matter to be decided by letting in evidence in the case. Such
issues cannot be pre-judged merely by looking into the plaint. To this
extent, the court below has committed a serious mistake.
19. Another point canvassed before us is about the right of a
tenant to challenge title of his landlord. As mentioned above, Section
116 of the Evidence Act is the relevant provision. The learned counsel
for the appellants contended that the principles in Section 116 of the
Evidence Act cannot be extended to a challenge against the rights
devolved on the 1st respondent (assignee landlord) because the
tenants are only estopped from disputing the title of their landlord at the
time of induction. It is therefore contended that such a plea advanced
on the side of the respondents cannot be legally countenanced.
20. On a careful reading of Section 116 of the Evidence Act, it
will be clear that what is prohibited therein by a rule of estoppel is to
the effect that a tenant shall not dispute title of his landlord at the time
of induction. But, the provision does not preclude a tenant from
R.F.A.No.360 of 2018 14
disputing the derivative title of a third party, who claims title on the
basis of transfer from the inducting landlord. Our view is fortified by a
pronouncement by the apex Court in Subhash Chandra v.
Mohammad Sharif (AIR 1990 SC 636). We shall quote the relevant
observations:
“A tenant already in possession can challenge
the plaintiff's claim of derivative title showing that the
real owner is somebody else, but this is subject to the
rule enunciated by S.116 of the Evidence Act. The
section does not permit the tenant, during the
continuance of the tenancy, to deny that his landlord
had at the beginning of the tenancy a title to the
property. The rule is not confined in its application to
cases where the original landlord brings an action for
eviction. A transferee from such a landlord also can
claim the benefit, but that will be limited to the question
of title of the original landlord at the time when the
tenant was let in. So far claim of having derived a good
title from the original landlord is concerned, the same
does not come under the protection of the doctrine of
estoppel, and is vulnerable to a challenge. The tenant
is entitled to show that the plaintiff has not as a matter
of fact secured a transfer from the original landlord or

that the alleged transfer is ineffective for some other
valid reason, which renders the transfer to be nonexistent
in the eye of law. …...”
21. In this case, it is contended by the learned counsel for
respondents that the 3rd appellant (one of the tenants) had paid rent to
the 1st respondent before the suit and his action, in a legal sense, can
be considered as attornment. Therefore, Section 116 of the Evidence
Act would apply at least in respect of the 3rd appellant. In answer to
this contention, the learned counsel for the appellants relied on
Sambhunath Mitra and others v. Khaitan Consultant Ltd. and
others (AIR 2005 Cal.281), wherein it has been held as follows:
“Secondly, it is now settled law that a tenant is estopped
from disputing the title of his landlord at the time of
induction but he is not precluded from disputing the
derivative title of a third party who claims title on the basis
of transfer from inducting landlord and even if, the tenant
erroneously pays rent to such derivative title-holder, once
it is proved that according to the law no title has really
been conveyed in favour of such third party. (See Ketu
Das v. Surendra Nath Sinha reported in 1903 (7) Cal WN
596 (DB); Chengtu Sarkar v. Jeheruddin Mondal and
others reported in AIR 1926 Cal.720 (DB). The fact that
the tenant due to ignorance of law, paid rent to such third

party will not stand as estoppel against the tenant from
denying the derivative title of the third party and from retendering
rent to the real landlord. Therefore, the
plaintiffs cannot be prevented by the principles of
estoppel from disputing the title of the third party even if
they erroneously thought that the said third party acquired
right to the property and consequently, paid rent. …...”
It is therefore clear that the suit cannot be said to be without a cause of
action merely by relying on Section 116 of the Evidence Act.
22. It is argued by the learned counsel for the respondents that
if the appellants wanted any relief against the respondents complaining
of a breach of trust, their remedy should have been a suit under
Section 92 of the Code. In answer to this contention, learned counsel
replied that the appellants do not seek any of the reliefs enumerated in
Section 92(1) (a) to (h) of the Code. Settled legal position is that any
and every suit relating to a public trust need not be under Section 92 of
the Code, unless the reliefs claimed therein do fall within the matters
enumerated in Section 92(1) of the Code.
23. We may not be understood as pronouncing anything on
the merits of the suit at this stage. Issues arising in the case are to be
decided by the trial court at the appropriate stage of the proceedings
based on evidence in the case. We do not want to pre-empt anything
in favour of any of the parties to the litigation, as their rights are to be

decided at the end of a trial process. However, we are of the definite
view that on a reading of the plaint in its entirety, the court below is not
legally justified in entering a finding that the averments in the plaint do
not reveal a cause of action. This finding is undoubtedly incorrect,
which needs an interference.
In the result, the appeal is allowed. The impugned order
passed by the court below is hereby set aside. The court below shall
allow the parties to complete their pleadings and after framing issues
the parties will go for trial of the case. All the questions - both legal and
factual - arising in the suit shall be decided with regard to the evidence
in the case and the legal principles applicable to the facts of the case.
Parties shall appear before the court below on 08.07.2019.
All pending interlocutory applications will stand closed.
A.HARIPRASAD, JUDGE.
SHIRCY V., JUDGE.

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