Karnataka High Court
Mr. Rajanna vs Sri. B M Vijaykumar on 6 January, 2025
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
WP No. 5895 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 5895 OF 2024 (GM-CPC)
BETWEEN:
1. MR. RAJANNA
S/O NARAYANAPPA,
AGED ABOUT 52 YEARS,
NO.4, 1ST MAIN ROAD, 1ST CROSS,
NEAR GODWIN SCHOOL, AMCO LAYOUT,
KODIGEHALLI, BENGALURU NORTH 560 092.
2. MR. B S UMASHANKAR ARADHYA
S/O SHIVARUDRAIAH
AGED ABOUT 44 YEARS,
NO.1200, KEMPEGOWDA NAGAR,
NEAR TENNIS COURT, VIDHYARANYAPURA,
CHIKKBETTAHALLI, BENGALURU NORTH 560 097.
3. MR. SUDANANDA B H
S/O LATE B C HANUMANTHARAYAPPA,
AGED ABOUT 47 YEARS,
NO.191, 4th CROSS, 2nd MAIN,
TALACAVUERY LAYOUT, AMRUTHHALLI,
BENGALURU NORTH, BENGALURU 560 092.
...PETITIONERS
(BY SRI.PRASHANTH KUMAR D., ADVOCATE)
AND:
1. SRI. B M VIJAYKUMAR
S/O LATE B K MUNIYAPPA,
AGED ABOUT 74 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7TH CROSS ROAD,
JAYANAGAR 1st BLOCK, BENGALURU 560 011.
-2-
WP No. 5895 of 2024
2. SRI. B M PRITHVIRAJ
S/O LATE B K MUNIYAPPA ,
AGED ABOUT 72 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
3. SRI. B M MURALI
S/O LATE B K MUNIYAPPA,
AGED ABOUT 60 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
4. SMT. B M CHANDRAPRABHA
D/O LATE B K MUNIYAPPA
AGED ABOUT 67 YEARS,
RESIDING AT NO. 49
3rd CROSSROAD, 10th MAIN ROAD,
INDIRANGARA 2nd STAGE,
BENGALURU 560 038.
5. SMT. B P AMBIKA
W/O SRI. DHARMAPRAKASH,
D/O SRI. B M PRITHVIRAJ
AGED ABOUT 41 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
6. SMT. B P CHAITRA
W/O SRI. VISHRUTH,
D/O SRI. B M PRITHVIRAJ
AGED ABOUT 35 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
-3-
WP No. 5895 of 2024
7. SMT. AKSHAY,
S/O SRI B.M. MURALI,
AGED ABOUT 20 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7TH CROSS ROAD,
JAYANAGAR 1ST BLOCK,
BENGALURU - 560011.
8. KUM. AANYA
S/O SRI. B MURALI
AGED ABOUT 18 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7th CROSS ROAD,
JAYANAGAR 1st BLOCK,
BENGALURU 560 011.
9. SMT. BHARGAVI N
W/O SRI. SHIVASHANKAR VINAY,
D/O CHANDRAPRABHA B M,
AGED ABOUT 39 YEARS,
RESIDING AT NO. 49, 3rd CROSS ROAD,
10th MAIN ROAD, INDIRANGARA 2nd STAGE,
BENGALURU 560 038.
10 . SRI. YOGISH H N
S/O SMT. CHANDRAPRABHA B M
AGED ABOUT 30 YEARS,
RESIDING NO. 49, 3rd CROSS ROAD,
10th MAIN ROAD, INDIRANAGAR 2nd STAGE,
BENGALURU 560 038.
11 . BANGALORE KEMPAIAH TECHNICAL
AND EDUCATIONAL TRUST (R),
REGISTERED OFFICE AT NO. 106/7,
BELLARY ROAD, AMRUTHAHALLI VILLAGE,
NATIONAL HIGHWAY -7, BENGALURU NORTH TALUK
BENGALURU 560 092.
12 . SRI. T P RAVISHANKAR
S/O LATE SRI. T PUTTASWAMY,
AGED ABOUT 64 YEARS,
NO. 414-106/7, BELLARY ROAD, NEXT TO IOC
PETROL BUNK, BENGALURU 560 092.
-4-
WP No. 5895 of 2024
13 . SMT. P LAKSHMI
W/O SRI. NARENDRAKUMAR
D/O SRI. B M PRITHVIRAJ,
AGED ABOUT 24 YEARS,
RESIDING AT "BHAKTINIVAS",
NO.292, 7TH CROSS ROAD,
JAYANAGAR 1st BLOCK, BENGALURU 560 011.
...RESPONDENTS
(BY SRI.AJIT KALYAN., ADVOCATE FOR
SRI. H.S.DWARAKANATH, ADVOCATE FOR R1,2 AND 4,
SRI. UDAYA HOLLA, SENIOR COUNSEL FOR
SRI. VIVEK HOLLA, ADVOCATE FOR R5 TO R10 AND R13,
SRI. MAYANK HEBBAL, ADVOCATE FOR
SRI. SANJANA RAJ FOR R3,
SRI. A.MADHUSUDHANA RAO,ADV., FOR R11 AND R12)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL
FOR THE RECORDS IN O.S.NO. 5939/2022 ON THE FILE OF XVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH NO.12) AND QUASH THE LOK-ADALAT ORDER DATED
09.12.2023 (ANNXURE-P) PASSED IN O.S.NO. 5939/2022
PASSED BY THE LOK-ADALATH ON THE FILE OF XVI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-NO.12) SAME IS VITIATED BY FRAUD.
THIS WRIT PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON’BLE MR JUSTICE KRISHNA S DIXIT
CAV ORDER
Petitioners are knocking at the doors of Writ Court
for assailing the Lok Adalat order dated 9.12.2023
whereby, the partition & declaration suit in
O.S.No.5939/2022 having been amicably settled, a
compromise decree has been entered in terms thereof.
-5-
WP No. 5895 of 2024
2. BRIEF FACTS OF THE CASE:
(a) Respondent No.11 is a Trust duly registered on
4.5.2001; it is founded under the provisions of Indian
Trusts Act, 1882; there was a partition suit in
O.S.No.5939/2022 concerning the Trust properties;
second prayer in the suit was for a declaration that the
Trust Deed does not bind the plaintiffs and the third prayer
was for a decree of injunction to restrain alienation of the
Trust properties, by whatever mode.
(b) Parties to the suit having shown inclination for
compromise, learned trial Judge had referred the lis to Lok
Adalat for exploring the possibility of amicable settlement.
Parties settled the dispute before the Lok Adalat and
accordingly, the impugned judgment & decree came to be
entered on 9.12.2023 founded on the said compromise.
The same are put in challenge by the petitioners before
this court.
3. Learned counsel for the petitioners vehemently
argued that the impugned order is liable to be voided
because lis of the kind cannot be a subject matter of
-6-
WP No. 5895 of 2024
compromise when the entity concerned is a Public &
Charitable Trust; the subject compromise is prejudicial to
the interest of beneficiaries of the Trust in question; the
compromise is marred by fraud & misrepresentation,
inasmuch as earlier related proceedings have been
suppressed from the knowledge of Lok Adalat & Court;
respondents having received substantial money from
National Highway Authority & KIADB, have
misappropriated the same, and the Trust in question was
not duly represented in the suit in question.
4. Learned counsel representing the respondents
resisted the petition contending that: petition in its
present form & substance is not maintainable; petitioners
lack locus standii, they having no mandate to represent
the interest of beneficiaries; the Trust in question having
been registered under the provisions of 1882 Act, is a
Private Trust as contradistinguished from a Public &
Charitable Trust; petition averments as to fraud &
misrepresentation lack material particulars; the allegation
as to misappropriation of Trust’s funds is false; the
-7-
WP No. 5895 of 2024
impugned judgment & decree perfectly accord with law
and interest of the Trust is duly represented & protected.
5. Heard the learned counsel for the parties and
perused the Petition Papers. Though very many
contentions were urged by both the sides, the following
principal questions merit consideration in the case at
hand:
(i) Whether petitioners have sufficient locus standii to
lay a challenge to the compromise decree…?
(ii) Whether the 11th respondent-Trust is a Public &
Charitable Trust founded for the benefit of indeterminate
persons…?
(iii) Whether the subject compromise decree having been
secured by fraud & misrepresentation, a Writ Court
exercising a limited supervisory jurisdiction u/a 227 of the
Constitution of India should grant interference …?
5.1. AS TO LOCUS STANDII OF THE PETITIONERS:
(a) The partition suit included a prayer for declaration
that the Trust Deed in question does not bind plaintiff to
the suit. The judgment & decree though founded on
compromise, are not one in rem inasmuch as they have
-8-
WP No. 5895 of 2024not been rendered in the four designated jurisdictions
namely matrimonial, insolvency, admiralty & probate. Had
they had rem character, obviously petitioners too would
have been bound by and therefore, arguably, they would
have the locus standii to call them in question. During the
online hearing, on being asked twice, learned counsel for
the petitioners in appreciable fairness said that his clients
are not the beneficiaries of the Trust in question. However,
he hastened to add that they were espousing the cause of
beneficiaries. It is not the case of petitioners that the so
called beneficiaries of the Trust in question are incapable
of protecting their interest and therefore, they need
espousal. No paragraph in the Trust Deed provides for
espousal, even implicitly. Strangely enough, petition does
not mention as to who these beneficiaries happen to be.
Ordinarily, espousal needs statutory enablement, as we
find in various Labour Welfare legislations. No law or ruling
is brought to notice of the court that persons of the kind
can knock at the doors of Writ Court posing espousal.
-9-
WP No. 5895 of 2024
(b) Learned counsel appearing for the respondents are
justified in contending that in matters like this, strangers
like petitioners should not be permitted to easily gain
access to the portals of Writ Court. A contention to the
contra may result into flooding of litigations of this kind
adding to the docket explosion. Obviously, this is not a
social action litigation involving public interest and
therefore, the idea of locus standii should pale into
insignificance. Unless a litigable interest is demonstrated,
court would not readily undertake examination of
questions which may otherwise merit due consideration. A
court of law would venture to treat questions only when
the right person raises them in the right proceedings and
in the right earnest, and not otherwise. Much is not
necessary to discuss. ‘The rest, is silence’ to borrow the
words of Shakespeare from Hamlet.
5.2. AS TO WHETHER TRUST IN QUESTION BEING A
PUBLIC & CHARITABLE TRUST:
(a) The petition is structured on the premise that the
Trust in question is a Public & Charitable Trust and
therefore, compromise decree of the kind is unsustainable.
– 10 –
WP No. 5895 of 2024
This is hotly contested from the side of respondents
stating that the Trust in question never came into
existence and never was functional. Petitioners have
produced, fairly, a copy of registered Trust Deed bearing
registration No.P-143/2001-02 dated 4.5.2001.
Admittedly, the Trust Deed in question having been found
deficit in stamp duty, was referred to the office of
Inspector General for Registration vide order dated
10.7.2003 in proceedings No.DRI-55/01-02. Deficit was
made good vide order dated 3.10.2017 issued by Senior
Sub-registrar, Yelahanka. Thus, for sixteen long years, the
Trust Deed had not seen light of the day and obviously,
Trust was not functional. Absolutely, nothing is averred as
to the functionality of the Trust even after deficit stamp
duty was paid much less any evidentiary material is
produced to demonstrate the same. This court cannot
assume things in vacuum.
(b) The Trust comprised of subject property and third
respondent personally had not put his signature, although
the plaintiff Kum.Lakshmi.P, claims to have represented
– 11 –
WP No. 5895 of 2024
his interest by General Power of Attorney. No full
particulars of the authorizing instrument are forthcoming
either from the petition or from the Trust Deed itself. The
said Lakshmi is none other than the plaintiff in
O.S.No.5939/2022 which culminated into a compromise
decree dated 9.12.2023. Whether the Trust became
functional and the property settled therein came to be
used for the beneficiaries, cannot be adjudged by this
court as already mentioned above. Whether the Trust in
question is a Public & Charitable Trust is largely a question
of fact which needs to be adjudicated upon by a court of
competent jurisdiction wherein, evidence can be led by
both the sides to substantiate their contentions. Just by
reading a few lines from the script of the Trust Deed, one
cannot hastily jump to the conclusion that it is or it is not
a Public & Charitable Trust, a host of factors entering the
fray of determining the nature of Trust. A Writ Court
exercising a limited supervisory jurisdiction constitutionally
vested u/a 227, certainly is not the right Forum, for
adjudging contentious dispute like this.
– 12 –
WP No. 5895 of 2024
(c) Mr.Udaya Holla and Mr.Dhyan Chinnappa, learned
advocates appearing for the contesting respondents are
right in telling that if somebody is aggrieved by the
compromise decree, nothing comes in his way in framing a
suit as contemplated u/s 92 of the Code of Civil Procedure,
1908, seeking invalidation of impugned judgment & decree
founded on compromise. This, the beneficiaries of Trust in
question can certainly do, if case of the petitioners that
the subject Trust has public character as alleged in the
petition, is to be assumed true. It hardly needs to be
stated that scope of section 9 of CPC is too wide vide
DHULABHAI vs. STATE OF MADHYA PRADESH1, whether
suit is u/s 26 or u/s 92, the latter having certain
conventional limitations, notwithstanding. A Coordinate
Bench of this Court in C.R.SHIVANANDA vs.
H.C.GURUSIDDAPPA2, has observed as under:
“30. …The essential distinction between a public
and a private trust is, that in the former the
beneficiaries are definite and ascertained
individuals or who within a definite time can be
definitely ascertained, but in the latter the
beneficial interest must be vested in an uncertain
and fluctuating body or persons-either the public
1
AIR 1969 SC 78
2
ILR 2012 Kar 4624, at para 30
– 13 –
WP No. 5895 of 2024
at large or some considerable portion of it
answering a particular description… The line of
distinction between a public purpose and a
purpose which is not public is very thin and
technical and is difficult of an easy definition. If
the intention of the donor is merely to benefit
specific individuals, the gift is not charitable, even
though the motive of the gift may be to relieve
their poverty or accomplish some other purpose
with reference to those particular individuals
which would be charitable if not so confined; on
the other hand, if the donor’s object is to
accomplish the abstract purpose of relieving
poverty… It is a question of fact whether a
temple is a private or a public one. Whether the
trust is public or private would have to be decided
in each case with reference to the terms of the
document if any; and if there is no document or
its language is ambiguous, the decision would
depend upon inferences which could be
legitimately drawn from the evidence adduced in
the case, the material evidence being a actual
user and public repute…”
No explanation is offered by the petitioners as to why they
cannot invoke section 92, which apparently is an alternate
& more efficacious remedy inasmuch as admittedly, they
were not parties to the suit in which the subject
compromise decree came to be entered.
5.3. AS TO IMPUGNED COMPROMISE DECREE BEING
VITIATED BY FRAUD AND THEREFORE, WRIT COURT
SHOULD INTERFERE:
– 14 –
WP No. 5895 of 2024
(a) Learned counsel appearing for the petitioners
vehemently argued that the subject compromise decree
demonstrably having been secured by fraud &
misrepresentation, challenge thereto is admissible even in
writ jurisdiction. This is stoutly opposed by the advocates
appearing for the respondents. To treat this contentious
issue, one has to have a clear idea as to what fraud means
in the realm of law. Kerr on fraud3 says as under:
“…It is not easy to give a definition of what
constitutes fraud in the extensive significance in
which that term is understood … Courts have
always avoided hampering themselves by defining
or laying down as a general proposition what shall
be held to constitute fraud. Fraud is
infinite in variety… courts have reserv(ed) to
themselves the liberty to deal with it under
whatever form it may present itself. Fraud … may
be said to include properly all acts, omissions, and
concealments which involve a breach of legal or
equitable duty, trust or confidence, justly
reposed, and are injurious to another, or by
which an undue or unconscientious advantage is
taken of another. All surprise, trick,
cunning, dissembling and other unfair way that is
used to cheat anyone is considered as fraud.
Fraud in all cases implies a willful act on the part
of anyone, whereby another is sought to be
deprived, by illegal or inequitable means, of what
he is entitled to…”
3
KERR ON FRAUD AND MISTAKE, BY SYDNEY EDWARD WILLIAMS, PART
I.–FRAUD, FIFTH EDITION, pg-1.
– 15 –
WP No. 5895 of 2024
‘Fraud vitiates everything’, said Lord Edward Coke
centuries ago in REX vs. DUCHESS OF KINGSTON4. Our
Apex Court adopted this as a native norm as reiterated in
S.P.CHENGALVARAYA NAIDU vs. JAGANNATH5. However,
Coke’s statement is of wide sweep and has several
implicationary reflections: fraud in public law vis-a-vis
fraud in private law; fraud on the parties vis-à-vis fraud on
the court; fraud going to the root of matter vis-à-vis fraud
operating at the periphery and the like. In STATE OF
ANDHRA PRADESH vs. A.SURYACHANDRA RAO6, it is
observed: “…fraud” in public law is not the same as
“fraud” in private law… The colour of fraud in public law or
administration law, as it is developing, is assuming
different shades…” Coke’s idea of fraud fits broadly in the
realm of public law. Apparently, the plea of fraud taken up
in this case does not much figure in the precincts of public
law.
(b) Section 17 of the Indian Contract Act, 1872 defines
‘fraud’ to mean an act committed by a party to a contract
4
20 How. St. Tr.544
5
(1994) 1 SCC 1
6
(2005) 6 SCC 149
– 16 –
WP No. 5895 of 2024
with the intent to deceive another. By such deceit,
whether deceiver derives any benefit or reward, is not
much relevant. A consent obtained by fraud does not
render the contract void ab initio; it only gives to the
defrauded party a right to avoid the contract; such right
not being coupled with duty unlike in the field of public
law, may or may not be exercised. Till the right is
exercised and thereby avoidance is accomplished, the
private arrangement between the parties would continue
as being legally enforceable. In other words, it does not
cease to be a contract. [Section 2(h) of 1872 Act defines
contract as an agreement enforceable by law]. Thus, an
agreement brought about by fraud, fabrication & duplicity
per se, is not treated as a nullum pactum, its vulnerability
being selective qua the party defrauded. It has long been
settled that a compromise decree is ordinarily treated as a
contract with the seal of court superadded vide NAVRATAN
LAL SHARMA vs. RADHA MOHAN SHARMA7. Persons who
can lay a challenge to a compromise decree of the kind on
the ground of fraud can be either the trustees or the
7
(2024) SCC OnLine SC 3720
– 17 –
WP No. 5895 of 2024
beneficiaries or the persons interested in the Trust, subject
to all just exceptions. Petitioners do not answer this
proposition. That being the position, ‘fraud vitiates
everything’ cannot be chanted like mantra. A contention to
the contrary if countenanced, would have serious
implications and repercussions that would outweigh the
rewards of setting aside a private instrument or decree of
the kind.
(c) The above apart, plea of fraud is often taken up by
parties and very rarely substantiated. At times,
arguments as to fraud, fabrication & duplicity are
advanced with sound & fury, signifying nothing, to put it
metaphorically. In this case too, the same has happened.
Specific plea with full particulars as to who, when, how,
where & on whom these legal sins are perpetrated have to
be meticulously stated in the pleadings. A half hearted one
would not suffice the requirement of law. In that regard,
what applies to the suits would apply to the writ
proceedings as well, by virtue of Rule 39 of Writ
– 18 –
WP No. 5895 of 2024
Proceedings Rules, 1977 which have broadly adopted inter
alia the provisions of CPC. This Rule has the following text:
“39. Application of the High Court of Karnataka
Rules, etc.- The provisions of the High Court of
Karnataka Rules, 1959, the rules made by the
High Court of Karnataka under the Karnataka
Court Fees and Suits Valuation Act, 1958, and the
provisions of the Code of Civil Procedure, 1908,
shall apply, as far as may be, to proceedings
under Article 226 and/or Article 227 and writ
appeals in respect of matters for which no specific
provision is made in these rules.”
(d) It is true that at para 9 of the petition, several
proceedings have been enlisted; allegedly they had not
been brought to the notice of Lok Adalat nor the Court
below. But how all that is going to cast shadow on the
impugned judgment & decree, is not specifically pleaded
nor otherwise demonstrated here. Courts cannot be
swayed away by fantastic pleadings/arguments per se in
the absence of demonstrable evidence of factors that
vitiate the proceedings or their outcome. Added, except
enlisting the case numbers, nothing more is stated, either.
In any event, private interest of an individual cannot be
prejudiced by some decrees/orders to which those
individuals are not parties eo nomine.
– 19 –
WP No. 5895 of 2024
In the above circumstances, this petition being
devoid of merits, is liable to be dismissed & accordingly, it
is.
The observations herein above made being confined
to disposal of the petition, shall not influence the
appropriate proceedings if brought about for laying a
challenge to the impugned judgment & decree.
This Court places on record its deep appreciation for
the able assistance rendered by the Research Assistant
Mr.Raghunandan K S.
Costs made easy.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Snb/cbc