M. K. RAPPAI & ORS. versus JOHN AND ORS.

Citation: [1970] 2 S.C.R. 124 · Decided: 28-08-1969 · Supreme Court of India · Bench: K.S. HEGDE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

124 
M. K. RAPPAI & ORS. 
v. 
JOHN AND ORS. 
Augllst 28, 1969 
[K. s. HEGDE AND A. N. RAY, JJ.] 
Practice and Procedure-suit for appointment of trustees, filed wirhout 
pmp/ying with provisions of s. 92, Civil :'rocedure Code-Right declared, 
to be appointed as trustees when properly framed suit rmder section filed-
Propriety-Declaration, if barred by s. 42, Specific Relief Act (l of 1877) 
or s. 34 of Specific Relief Act (47 of 1963). 
By a deed of settlement, the settlor appointed besides himself, the 
father or the first plaintiff, the father of the serond plaintiff, and defendants 
1 to 3 and 10 and 11, as trustees of an Educational and (:haritable Tru5t. 
On the resignation of the fathers of the two plaintiffs, the remaining trust-ees 
appointed defendants 4 to 9 as trustees. The plaintiffs filed a suit making 
allegations against defendants 1 to 9 and claimed that they should be 
appointed as trustees. 
The High Court, in appeal, gave a declaration to 
the effect that the plaintiffs were next in the line of succession. that they 
were entitled to claim appointment as trustees, but that such appointment 
could be mad~ only in a properly framed suit after complying with the 
requirement~ of s. 92, Civil Procedure Code. The plaintiffs thereupon filed 
a fresh suit under s. 92, C.P.C. Meanwhile, the defendants in the ·earlier 
suit filed an appeal against the judgment of the High Court, to this Court. 
HELD : The suit was for appointment of the plaintiffs as trustees and 
fell within the provisions of s. 92, C.P.C. Therefore,· the judgment of the 
J:Iigh Court giving the plaintiffs the right to be appoipted as trustees, when 
the provisions of the section were not complied with, should be ~et aside. 
[127 H; !_8 E) 
(a) If the appointment fell within the vice of s. 92 any decision giving 
the plaintiffs the right to be appointe.d will be prejudging the question and 
would be an impediment as far as the defendants are concerned, in ques. 
tioning, in the second suit, the right of the plaintiffs to be appointed as 
trustees. [128 A-B] 
(b) If the right to be appointed as trustees wer'! to be granted to the 
plaintiffs in the absence of compliance with the provisions of the section, 
it would amount to an indirect way of giving what was directly prohibited. 
[128 BJ 
(c) If the declaration were allowed to stand it would operate as res 
judicata and it would not be open to the defendants to question it in the 
subsequent proceeding~ filed for the same relief after complianc~ with 
the section. [128 B-C] 
(d) A bare declaration of the right without consequential relief will 
be within the mischief of s. 42 of the Specific Relief Act, 1877 or s. 34 
of the Specific Relief Act, 1963. [128 D-E] 
CiviL APPELLATE JuRISDICTION : Civil Appeal No. 
~ 787 of 
B 
c 
D 
E 
G 
1966. 
H 
Appeal from the judgment a.:~d decree dated May 18, 1964 of 
the Kerala High Court in Appeal Suit No. 591 of 1963. 
... 
A 
8 
c 
D 
E 
F 
G 
H 
M. K. RAPPAI V. JOHN (Ray,].) 
125 
D. Narsaraju and A. S. Nambiar, for the appellants. 
W. S. Barlingay, R. Mahalingier and Ganpat Rai, for re5pon-
dents Nos. 1 and 2. 
The Judgment of the Court was delivered by 
Ray, J. This is an appeal from the judgment dated ~ 8 May, 
1964 of the High Court of Kerala allowing the appeal in part 
and allowing declaration to the effect that the plaintiffs are next 
in the line of succession to V. L. Lazar and T. V. John respec-
tively and that they are entitled to claim an appointment as trus-
tees. 
The High Court, however, concluded by saying that such 
appointment could be made in a properly framed suit under section 
92 of the Code of Civil Procedure. 
Counsel for the appellants contended that the High Court was 
in error in making the declaration particularly when the High 
Court said that such appointment could be made only in a pro-
perly framed suit under section 92 of the Code. 
In order to appreciate ihe matters in controversy it is neces-
sary to refer to a few facts and the frame of the suit. 
The plaintiffs filed this suit in 1961 for a declaration that de-
fendants numbered 4 to 9 were "trespassers" on the trust and that 
all acts and proceedings of defendants numbered 1 to 9 done 
since the resignation of T. V. John and V. L. Lazar in respect 
of the administration of the trust are invalid and void; that the 
plaintiffs be appointed as t~ustees; that defendants numbered 10 
to 11 be declared to be, aqd to have always been, lawful trustees 
and for injuncti

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