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Judgment
Mukta Gupta, J.
IA 16634/2010 (by D-1&4 u/o. VII R 11 CPC)
IA 16958/2010 (by D-2&3 u/o. VII R 11 CPC)
By these two applications the defendants seek rejection of the plaint under order VII Rule 11 CPC, inter alia, on the grounds that the suit is barred by limitation, discloses no cause of action and that no leave of the Court has been sought u/s 92 CPC. Learned counsel for the applicants/defendant Nos. 1&4 in IA 16634/2010 contends that in a dispute relating to the trust falling under Clause, A, B and H of Section 92 CPC, the plaintiff before filing the suit is required to seek leave of the Court and in the absence thereof the suit is liable to be rejected. [See Shri Hamid Ahmed Vs. Shri Asad Mueed and Others, The plea of the plaintiffs that they are agitating private rights is also not sustainable in view of the law laid down by this Court in Shishir Bajaj and Others Vs. India Youth Centres Trust and Others Regarding the plea that the suit is barred by limitation, it is contended that the plaintiffs claim their right to be appointed as trustees of defendant No. 1 in place of Shri Pavan Chander Mohan Sawhney who passed away on 13th January, 2002. Thus, the cause of action to the plaintiff No. 1 who is the wife of the deceased and plaintiff No. 2 who is the daughter of the deceased arose on 13th January, 2002. However, the suit has been instituted on 2nd June, 2010. The period of limitation prescribed under Article 58 of the Limitation Act is three years from the time when the right to sue first accrues. [See Khatri Hotels Private Limited and Another Vs. Union of India (UOI) and Another, and Shri Hamid Ahmed Vs. Shri Asad Mueed and Others, Even otherwise, the defendant No. 4 was appointed as trustee on 7th July, 2006 and thus even counting the cause of action from the said date, the present suit is barred by limitation. Further, the defendant No. 1&4 are not the family members of the plaintiff and no settlement has been arrived at with defendant No. 1&4. In the absence of the other trustees being made parties, the present suit is not maintainable.
Learned counsel for the applicants/defendants No. 2 &3 in IA No. 16958/2010 contends that even taking the averments in the plaint as it is, no cause of action is disclosed. Paras 4 and 12 of the plaint disclose the establishment of the trust and the rule governing the number of trustees, appointment of new trustees and the removal of trustees. The selection of trustees has to be by majority of votes and thus the defendants No. 2&3 alone have no role to play therein. In the entire plaint it is nowhere pointed out that the plaintiffs have a legal right to be appointed. Rather in Para 34 of the plaint it is admitted that settlors have given discretionary powers to the present trustees to appoint any other person as trustee. Thus, the plaintiff is not entitled to any relief of declaration u/s 34 of the Specific Relief Act. Even as per paragraph 14, the cause of action arose to the plaintiffs on the death of Shri Pavan Chander Mohan Sawhney on 13th January, 2002 and thus the present suit is hopelessly barred by limitation. Further, the first prayer in the suit is regarding the relief of declaration which is time barred and even consequential reliefs of mandatory injunction are barred by limitation in view of Article 113 of the Limitation Act. It is well settled that if declaratory reliefs are time barred, then the consequential reliefs can also not be entertained. [See State of Punjab and Another Vs. Balkaran Singh, . In view of the law laid down in T. Arivandandam Vs. T.V. Satyapal and Another, such a suit should be nipped in the bud and not permitted to be proceeded. Every fact does not constitute a cause of action. Only facts which give right to sue constitute a cause of action. Since the majority votes are necessary for declaration of a person being the trustee of defendant No. 1, the defendant No. 2&3 can have no role alone to play. The intention of the settlors of the trust was very clear that they did not want the trust to be operated by way of inheritance but only want people who were the right person i.e. persons willing to act. No directions can be issued to defendants No. 2&3 to appoint the plaintiffs as trustees.
Learned counsel for the plaintiffs/non-applicants on the other hand contends that the present suit is not covered u/s 92 CPC as it is neither seeking removal of a trustee nor appointment of a trustee nor a relief in the said nature. The plaintiffs are only seeking exercise of discretion by the members of the trust as per the intention of the said trust. Reliance is placed on Sharda Bansal & Ors. Vs. R.D. Bansal & Ors. CS(OS) 1583/2005 decided on 30th July, 2008 by this Court to contend that infringement of private right is outside the scope of Section 92 CPC. Reliance is also placed on Harendra Nath Bhattacharya and Others Vs. Kaliram Das (Dead) by his Heirs and Lrs. and Others, to contend that Section 92 does not affect the maintainability of a suit wherein no allegation is made that there is a breach of the provisions of the trust or that the directions from the Court are necessary for the administration of trust. The contention that the suit is barred by limitation is liable to be rejected as the plaintiffs are seeking enforcement of the oral family settlement dated 13th February, 2009 whereby they were assured that the plaintiff No. 1 would be appointed in place of her deceased husband as a trustee of defendant No. 1. Though repeated violations may not extend the time period for limitation but when there is a specific acknowledgement of a right then the time has to be calculated from the date of said acknowledgement. The plaintiffs are seeking relief by the personal obedience of defendant No. 3&4 and not from the trust. The contention with regard to cause of action being not there is also incorrect as the cause of action has to be determined from the bundle of facts which if traversed would result in a right accruing in favour of the plaintiff to be enforced. By the present suit the plaintiffs are seeking to enforce the compromise, declaration in terms of the trust deed and the intention of the settlors. The intention in a family settlement is different as unequal shares can also be granted to maintain peace and harmony. Since the issues raised are triable issues, the plaint cannot be rejected at this stage and the plaintiff is entitled to a trial to prove its case. Hence, the applications be dismissed.
Heard learned counsel for the parties and perused the records. Before adverting to the issues raised, it would be appropriate to give a brief exposition of the facts as pleaded in the plaint. The plaintiffs are the wife and daughter of late Shri Pavan Chander Mohan Sawhney who was elder brother of defendant No. 2. Defendant No. 3 is the wife of defendant No. 2. Defendant No. 1 was established in the year 1953 by the four sons of late Rai Bahadur Lala Tirath Ram Shah as the settlors. The husband and father of plaintiff No. 1&2 respectively and defendant No. 2 are the sons of late Shri Puran Chand Sawhney, grandson of Rai Bahadur Lala Tirath Ram Shah. Shri Pavan Chander Mohan Sawhney was one of the trustees of defendant No. 1 besides defendant No. 2&3 and other five trustees when he passed away on 13th January, 2002. On 7th July, 2006 defendant No. 4 who is not one of the family members of late Rai Bahadur Lala Tirath Ram Sawhney was made a trustee which is the cause of grievance to the plaintiffs as the plaintiff No. 1 was not inducted as trustee after her husband''s death. It is further alleged in the plaint that on 13th February, 2009 a compromise was entered into between the plaintiffs and defendant No. 2 with regard to appointment of plaintiffs as trustee of defendant No. 1 in place of late Shri Pavan Chander Mohan Sawhney. The case of the plaintiffs is that the cause of action for filing the present suit arose on 13th February, 2009 when the compromise took place among the plaintiffs and defendant No. 2&3 in the pursuit of the ongoing litigation and when defendant No. 2 promised that he would take appropriate steps for appointment of either of the plaintiffs as trustees of defendant No. 1 in place of Shri Pavan Chander Mohan Sawhney.
The contention of learned counsel for the defendants that the suit is barred by limitation is liable to be rejected. It is well settled that at this stage only averments in the plaint have to be read by way of demurer. The case of the plaintiffs is that an oral settlement was arrived at between the plaintiffs and defendants No. 2&3 on 13th February, 2009 and the plaintiffs are seeking to enforce the compromise arrived at between them. The suit has been instituted within 3 years of the oral settlement dated 13th February, 2009, thus within the period of limitation.
The moot question in the present case is whether the present suit is liable to be rejected for not having sought leave as contemplated u/s 92 CPC. The prayers in the present suit are:
a) A declaration in favour of the plaintiffs and against the defendants that either of the plaintiffs are entitled to be appointed as trustee of defendant No. 1 and that appointment of any person other than either of the plaintiffs in place of Shri Pavan C Sawhney is void ab initio; and that appointment of defendant No. 4, while ignoring plaintiffs is against Trust Deed, intention of the settlor and the family settlement.
b) Mandatory injunction against the defendant No. 1 to 4 requiring them to appoint either of the plaintiffs as trustee of defendant No. 1.
c) Permanently injunct the defendant No. 2 & 3 thereby restraining them from passing any order/resolution/instruction thereby depriving the plaintiffs to visit the hospital of defendant No. 1 and to carry out works of charity.
d) Permanently injunct defendant No. 4, thereby restraining her from participating in any meeting of Board of Trustee in any manner related to the affairs of the defendant No. 1 Trust;
e) Pass such further or other order(s) or grant relief(s) that this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.
It is thus apparent that the plaintiffs seek a declaration that either of the plaintiffs are entitled to be appointed as trustee of defendant No. 1 and a permanent injunction against defendant No. 4, restraining her from participating in the meeting of the Board of Trustees in any manner relating to the affairs of defendant No. 1 trust. Section 92 CPC provides that an Advocate General or two or more persons having an interest in the firm and having obtained the leave of the Court may institute a suit seeking a decree for removing any trustee or appointing a new trustee or vesting any property in the trustee etc. The prayers in the suit are clearly for appointment of either of the plaintiffs as a trustee of defendant No. 1 and restraining defendant No. 4 from acting as a trustee of defendant No. 1. The provision of Section 92 CPC is mandatory in nature. The contention of learned counsel for the plaintiff to the extent that the plaintiff is not seeking any relief against the trust but seeking personal obedience from defendants No. 2&3 is liable to be rejected for the reason that even though the plaintiffs may be seeking personal obedience of the defendants No. 2&3 to act on the settlement arrived on 13th February, 2009, however in effect the plaintiffs seek both appointment of either of them as a trustee and removal of defendant No. 4 as a trustee of defendant No. 1. While deciding whether the suit falls u/s 92 CPC the dominant purpose of the suit is required to be looked into and the dominant purpose in the present suit is the appointment of either of the plaintiffs as trustees and removal of defendant No. 4 as the trustee of defendant No. 1. The Court is required to look into the substance and not the form of the suit. However, to attract the provision of Section 92, there is yet another requirement i.e. the grievance should be a public grievance and not enforcement of a private right. In the present suit this requirement is missing. Section 92 CPC is not attracted to the facts of the present case.
In Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, encapsulated the conditions required for the applicability of Section 92 CPC. It was held:-
A suit u/s 92 is a suit of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit u/s 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N. Shanmukham Chetty Vs. M. Govinda Chetty and Others, The Tirumalai Tirupati Devasthanams Committee Vs. Udiavar Krishnayya Shanbhaga and Others, , Sugra Bibi Vs. Hazi Kummu Mia, and Mulla: CPC (13th edn.) Vol. 1, p. 400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92.
In the present case the suit is not one to vindicate the right of the public but seeks enforcement of an individual right in view of the intention of the settlors and the oral compromise arrived at between the plaintiffs and the defendants No. 2&3. Thus, Section 92 CPC is not applicable to the present suit and the same is maintainable without seeking the leave of this Court.
In the present suit, the plaintiffs are seeking the appointment of either of the plaintiffs as the trustees in view of the oral settlement arrived at between the plaintiffs and the defendant Nos. 2 and 3 on 13th February, 2009. The issue whether there was an oral settlement or not, cannot be decided in the present application but after the parties lead their evidence. At this stage the pleadings in the plaint are to be read by way of demurrer. The suit has been instituted on 3rd June, 2010, thus within the period of limitation prescribed from the date of cause of action i.e. 13th February, 2009.
As regards the cause of action, it is not disputed that defendants no. 2 and 3 are the trustees of the defendant No. 1 and play a major part in the administration of defendant No. 1 trust. It is also not disputed by the defendants that till the death of Pavan Chander Mohan Sawhney, all branches of late Rai Bahadur Tirath Ram Shah were duly represented in the defendant No. 1 trust. A past precedent and practice is also an indicator of the intention of the settlors. Thus though defendants No. 2 and 3 above cannot appoint either of the plaintiffs as the trustees individually but their decision would play an important part in appointment of a trustee. Thus the present plaint cannot be nipped in the bud on the ground that no cause of action arises and the plaintiffs are entitled to a trial to prove the averments made in the plaint. Consequently, the applications are dismissed.