SRI K SHIVA PRASAD vs. K V KUMARI

IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 5TH DAY OF NOVEMBER, 2019

BEFORE

THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

WRIT PETITION NO. 49400 OF 2019 (GM-CPC) C/W WRIT PETITION NO. 49995 OF 2019 (GM-CPC)

IN W.P. NO. 49400/2019:

BETWEEN:

(BY SRI. UDAYA HOLLA, SENIOR COUSNEL A/W SRI. ASHWIN PRABHU, ADVOCATE)

AND:

K V KUMARI, D/O VENKATASWAMY, R/AT KOTILINGESHWARA TEMPLE, KAMMASANDRA VILLAGE, BETHAMANGALA HOBLI, KOLAR-563 121 ... RESPONDENT (BY SRI. D L N RAO, SENIOR COUNSEL A/W SRI. G PAPIREDDY, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.09.2019 PASSED BY THE LD.III ADDL DISTRICT JUDGE KOLAR (SITTING AT KGF) IN MISCELLANEOUS APPEAL NO.19/2019(ANNEXURE-A).

IN W.P. NO. 49995/2019:

BETWEEN:

MS. K V KUMARI D/O. SRI. VENKATASWAMY, AGED ABOUT 52 YEARS, UTTARADHIKAARI/ADMINISTRATOR OF SREE KOTILINGESHWARASWAMY TEMPLE, KAMMASANDRA VILLAGE, BETHAMANGALA HOBLI, K.G.F. TALUK, KOLAR DISTRICT. …PETITIONER (BY SRI. D L N RAO, SENIOR COUNSEL A/W SRI. G PAPIREDDY, ADVOCATE)

AND:

SRI. K SHIVAPRASAD, S/O. LATE SRI. KAMALASAMBAVA, (PRESNYASATHVA) AND SRI SRI N. KAMALASAMBAVA @ SAMBASHIVAMURTHY SWAMIJI, (AFTER SANYASATHVA) AGED ABOUT 43 YEARS, R/AT “SAI SAI SHIVAPRASAD”, MULTI SPECIALITY ORTHOPAEDIC CLINIC, NO.213, 7TH CROSS, 6TH BLOCK, 3RD PHASE, BSK 3RD STAGE, NEAR KAMAKYA THEATRE SIGNAL, BENGALURU-560 085. …RESPONDENT

(BY SRI. UDAYA HOLLA, SENIOR COUNSEL A/W SRI. ASHWIN PRABHU, ADVOCATE)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.09.2019 PASSED BY THE III ADDL DISTRICT JUDGE, KOLAR (SITTING AT KGF) IN MA NO. 19 OF 2019 SUBSTITUTING THE ORDER DATED 27.05.2019 PASSED ON IA-III IN O.S.NO. 25 OF 2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE KGF VIDE ANNX-W AND ETC.,

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

O R D E R

Petitioner in W.P.No.49400/2019 happens to be the defendant and petitioner in W.P.No.49995/2019 happens to be the plaintiff in a declaration suit in O.S.No.25/2019, wherein the prayer column inter alia reads as under: “a) to declare that the plaintiff is the Uttharadhikari/Successor of the temples existing in the schedule properties as per the Registered Will dated 08.01.2004.

b) as a consequential relief to grant permanent injunction against the defendant, his family members, his servants, his agents or who-so-ever claims under him from interfering with possession, the day to day peaceful administration/management of the temple by this plaintiff and also restraining the defendant not to make nuisance destroying the spiritual and peaceful atmosphere of the suit schedule temple and its properties”.

Addl. District Judge, Kolar (Sitting at KGF) having favoured plaintiff – K.V.Kumari’s appeal in M.A.No.19/2019 has directed for the constitution of an Adhoc Managing Committee for administering and managing the temple in question; this Committee comprises of the Deputy Commissioner of Kolar District as it’s Chairman, and the Superintendent of Police, KGF, the Assistant Commissioner of Kolar Sub-Division & Tahsildar, KGF Taluka as it’s official Members; this apart, the Deputy Commissioner is authorized to nominate three eminent persons/scholars as private Members; broad guidelines as to how the Committee should administer and manage the temple are also laid down by the learned Judge.

(i) one Sri Samba Shivamurthy Swamiji, a Hindu by religion having embraced sanyaasa and having constructed the suit temples was administering the same since more than three decades with the aid of the plaintiff as the Secretary, who too has been living as sanyaasini; for the better administration of the temples and their properties, the Swamiji had created a Trust by a registered instrument dated 19.03.2011;

(ii) the said Swamiji during his administration having acquired huge properties dedicated the same for the benefit of the Diety- Sri Kotilingeshwara Swamy; the Swamiji by a registered Will dated 08.01.2004 inter alia provided for the appointment of plaintiff as the Uttaradhikari for the temple and its properties; the Swamiji passed away on 14.12.2018 and thus the plaintiff has been conducting the administration and management as provided in the subject Will;

(iii) the petitioner-defendant resisted the suit by filing the Written Statement denying that the plaint averments inter alia contending that the temples and the properties are the family acquisitions, although all the trustees and devotees too have contributed in some measure; the Swamiji had created a Trust vide registered instrument dated 28.03.1998 itself naming it as ‘Bhu Kailasa Sri Valmiki Ashrama, Kotilinga Trust’ for the benefit of depressed classes, minorities and rural society, the Swamiji was the Chairman, the defendant is the Vice- Chairman, Smt. V.Rukmini is the Secretary; the plaintiff and Smt.K.Anuradha are the Trustees; and,

(iv) the 1996 Trust has been managing and administering the subject temples and the properties; the Trust Deed of 2011 inter alia on which the suit is founded is concocted by the plaintiff and so is the Will dated 08.01.2004; these documents could not have been executed by the Swamiji contrary to the principles of sanyaasa; the Swamiji had never embrased sanyaasa and much less renounced his family and worldly attachment; after his demise in December 2018 his family members have succeeded to the suit properties as the Estate of the deceased; alternatively a suit filed u/s.26 of CPC, 1908 is not maintainable in the absence of leave u/s.92.

temporary protection; this is stoutly opposed by the defendant stating that it is he who is managing the same.

(a) the subject suit is filed u/s.26 r/w Order VII Rule 1 of CPC, 1908 and not u/s.92; plaintiff has taken up certain pleadings which roughly give an impression that the suit may involve a public or charitable trust; this is the alternate contention of the defendant too in his Written Statement, although he has primarily asserted that it is a family trust and the family of its author has succeeded to the properties, on his demise; the Trust Deed dated 23.08.1996 is a registered instrument, wherein the Swamiji was shown as the author, and the parties to the suit are also named in the deed; however, this trust is claimed to have become defunct, which is a matter to be tried in the suit;

(b) the Trust Deed dated 19.03.2011 on which the suit is founded is also a registered instrument which names the Swamiji as the author of another trust which does not mention about the 1996 Trust Deed or the said trust having become defunct, may be true; but, the plaintiff has produced several documents including the audit reports and income tax papers which prima facie establish that she has been at the helm of affairs of administration and management of the subject temples and the properties;

(c) the 1996 Registered Trust Deed and the transcript of video/audio produced by the defendant show that he too has been associated with the administration and management of the subject temples and the properties; the defendant happens to be son of the deceased Swamiji, the author of both the trusts, is not in dispute; may be that he has minimized his medical practice in the recent past so that he can better associate with the administration;

(d) the contention of the defendant that the Swamiji being his father had never renounced the world nor the family and that after his demise his family members have

succeeded to the subject temples and the properties as the Estate of the deceased, cannot be considered by this Court in the absence of sufficient material on record; after all, it is a matter for trial wherein the contentions as to alleged sanyaasa and its consequences on the subject documents i.e., the Trust Deeds of 1996 & of 2011 and the execution of registered Will dated 08.01.2004 after revoking earlier testament can be tried, keeping in view the decision of the Apex Court in the case of KRISHNA SINGH vs. MATHURA AHIR, (1981) 3 SCC 689, wherein the Apex Court has discussed about sanyaasa dharma and its conditions and effect;

(e) the vehement contention of the defendant that the plaintiff has amassed huge assets/wealth by misappropriating the income of the temples & its properties and that she has generated insurance policies falsely claiming to be daughter of late Swamiji and therefore her conduct comes in the way of her invoking the writ jurisdiction, is bit difficult to consider at this stage in the absence of specific contentions in his Written Statement; regardless of the pleadings, conduct of the party invoking writ jurisdiction can be looked into, may be true, but is beside the point at this juncture; this apart the

plaintiff submits that the original insurance policy was bought by Swamiji himself and the defendant was referring only to the renewed policy;

(f) the plaintiff has produced several documents in her Misc. Appeal after seeking leave of the Court under Order XLI Rule 27; the defendant has not adopted this course in the court immediately below, although he has now produced some documents and later filed an application seeking leave for their production, post facto; the Writ Court or Revision Court has power to consider such application, is not much disputed by the plaintiff side; however, how those documents with the nature of contentions in his Written Statement would strengthen the case of the defendant sans amendment thereof, is difficult to appreciate; in a limited sense, the principle that no amount of evidence could be looked into in the absence of plea comes in the way of these documents being made a part of the record at this stage;

(g) there is force in the contention of the plaintiff that ordinarily the validity of the impugned orders should be adjudged on the basis of material that was on record when they were made and that the documents

subsequently produced cannot be a ground for invalidation of such orders; however, nothing prevents the Writ Court from looking into subsequently produced relevant material while examining the impugned order, if the case eminently so warrants; however, no such case is made out by the defendant for undertaking that exercise when the subject documents now produced do not have much nexus to the defense emerging from the Written Statement; however, this Court hastens to add that these documents may become relevant if the defendant amends his pleadings suitably, if he so desires;

(h) the plaintiff during the extensive hearing of these writ petitions, at one stage fairly offered that the defendant may also associate with the administration and management of the subject temples and the properties, of course the plaintiff remaining at the helm of affairs and the official Members of the Adhoc Committee too continuing; however, the defendant declined to accept the offer inter alia contending that the State intrusion in the affairs of temple management is undesirable, if not legally impermissible; it needs to be mentioned that, the offer made by the plaintiff was without prejudice to her right to

argue on merits, if the same is declined by the defendant; be that as it may;

(i) as already mentioned above, the suit is inter parte and the State & its Officers are not parties thereto; the declaratory decree as sought for in the suit is not under Sec.92 of CPC although the defendant on an alternative ground has resisted the suit contending that the Trust is a public trust founded for charitable purpose; no application is moved under Order VII Rule 11(d) for non-suiting the plaintiff nor there is any Counter Claim, either; that being so the learned Addl. District Judge could not have constituted an Adhoc Committee of Management comprising of official Members and private members to be nominated by the Deputy Commissioner who is designated as the Chairman of the Trust, especially when both the registered instruments of Trust do not permit such a course of action; therefore the impugned order is unsustainable; justice of the case requires that the plaintiff should continue at the helm of affairs of management and administration of the subject temples and the properties assisted and associated by the defendant; and,

(j) regard being had to the nature of the lis and the hugeness of the properties involved, it is necessary that during the pendency of the suit, the properties of the Trust shall not be alienated or encumbered nor that any structural erections/alterations shall be undertaken by the plaintiff except with the leave of trial Court.

In the above circumstances, these writ petitions partly succeed; a Writ of Certiorari issues quashing the impugned order; during the pendency of the suit the petitioner-plaintiff shall continue at the helm of affairs of administration & management of the suit temples and properties, with the servient association of the defendant Sri K.Shiva Prasad.

The Deputy Commissioner, Kolar District shall ensure that the district administration shall disassociate from the affairs of administration & management of the subject temples and properties, forthwith, yielding place/position to the plaintiff.

However, this order shall not come in the way of jurisdictional official/Police, taking appropriate steps/action for addressing any law and order problem in or around the suit temples and properties.

The trial Court shall try and dispose off the suit as expeditiously as possible and without being influenced by whatever observations made hereinabove. Costs made easy.

Sd/- JUDGE

Snb/