Dodda-Basti vs Public Trust Created under A Will

S. Sujatha, J—This appeal is filed by the plaintiff challenging the judgment and decree of the lower appellate Court confirming the judgment and decree of the trial Court.

The brief facts of the case are:

Plaintiff filed a suit before the trial Court seeking decree for mandatory injunction against the defendant directing the defendant to deposit the income and rent derived from the suit properties to the plaintiff-Trust and for decree of perpetual injunction against the defendant in favour of the plaintiff restraining the defendant not to transfer the suit property in favour of others. It is the case of the plaintiff that both plaintiff and defendant-Trust are public trusts registered under the Bombay Public Trust Act, 1950. Defendant-Trust is a public trust created under the Will executed by deceased Venkawwa widow of Padappa Karadi of Belgaum through registered will dated 14.04.1928 with an object for maintenance of plaintiff''s Trust. After issuance of summons, defendant appeared before the trial Court and filed an application under Order 7 Rule 11(d) of CPC stating that the suit of the plaintiff is not maintainable which is expressly barred by Section 92 of CPC. After hearing the parties on this application, the trial Court rejected the plaint. Aggrieved by the said order, plaintiff preferred an appeal before the lower appellate Court and the same came to be dismissed. Challenging the said judgment and decree, this second appeal is preferred by the plaintiff.

Learned counsel appearing for the appellant contended that, Section 92 of CPC is not applicable to the facts of the present case, since no relief as enumerated in clauses (a) to (h) of Section 92 CPC is claimed by the plaintiff. The prayer sought in the suit is the individual interest or private interest of the Trust. As such, no suit is maintainable under Section 92 of CPC, the Courts below without appreciating the same dismissed the suit filed by the plaintiff under Section 9 of CPC. The main ground for dismissing the suit by the Courts below is that the plaintiff has not produced any documents to show that the plaintiff-Trust and the defendant-Trust are one and the same, which is totally against the very object of creating defendant-Trust by Smt. Venkavva, the sole object being the maintenance of the plaintiff-Trust. Thus, there is intrinsic relationship between the two trusts, same being not noticed by the Courts below, dismissed the suit.

Though respondent is served, remained unrepresented.

After hearing the learned counsel appearing for the appellant, following substantial questions of law arises for consideration:

i) Whether the Courts below failed to consider the applicability of Section 92 of CPC vis-�-vis Section 9 of CPC in consonance of the relief claimed?

After hearing the learned counsel appearing for the appellant and perusing the records, it is clear that the plaintiff has filed the suit under Section 9 of CPC mainly for the following reliefs:

a) Decree for mandatory injunction against the defendant in favour of the plaintiff, directing the defendant to deposit the income and rent derived from the suit properties to the plaintiff Trust.

b) A decree for perpetual injunction against the defendant in favour of the plaintiff, restraining the defendant permanently not to transfer the suit properties in favour of the others, not to create any encumbrance over the suit property.

Section 92 of CPC reads thus:

"Section 92 Public charities. - (1) In the case of any alleged breach of any express of constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the (leave of the Court) may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property]

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

A perusal of the prayer column makes it clear that the plaintiff-Trust is not claiming any scheme for the proper maintenance of the suit properties nor it is insisting for appointment of any persons as trustee. Their specific prayer is for the relief of mandatory injunction against the defendant-Trust to deposit the income and rent derived from the suit properties to the plaintiff-Trust and for injunctive relief against the defendant restraining the defendant permanently not to transfer the suit properties in favour of others. Prima facie it is obvious that the suit is not filed in the representative capacity. The Apex Court in the case of Vidyodaya Trust Vs. Mohan Prasad R. and Others, AIR 2008 SC 1633 : (2008) 2 CLT 44 : (2008) 2 CLT 315 : (2008) 3 CTC 868 : (2008) 3 JT 119 : (2008) 3 SCALE 273 : (2008) 4 SCC 115 : (2008) AIRSCW 1817 : (2008) 2 Supreme 264 , held as under:

"In the suit against public trusts, if on analysis of the averments contained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons an action under the provision does not lie. As noted in Swami Parmatmanand''s case (supra) a suit under Section 92 of CPC is a suit of special nature, which pre-supposes the existence of a public trust of religious or charitable character. When the plaintiffs do not sue to vindicate the right of the public but seek 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, Section 92 has no application.

In Swamy Parmatmanand''s case (supra) it was held that it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. But if after evidence is taken it is found that the breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in fact or reason but is made only with a view to bringing the suit under the Section then suit purporting to be brought under Section 92 must be dismissed.

To put it differently, it is not every suit claiming reliefs specified in Section 92 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. As a decisive factor the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of the interests of the public trusts."

This Court in the case of Sri C.R. Shivananda and Veerashatva Samaja Chickmagalur Vs. Sri H.C. Gurusiddappa and Sri H.C. Gangadarappa and Others , has held thus:

"A suit under Section 92 CPC is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. It presupposes the existence of a public trust of a religious or charitable character. A suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, CPC. A suit framed under Section 92 of CPC, the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any other these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section, if the plaintiff is held entitled to it. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. A suit under Section 92 of CPC is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. In deciding whether a suit falls within Section 92 of CPC 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. It is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. If on analysis of the averments contained in the plaint it transpires that the primary object behind the suit was the vindication of individual or personal rights of some persons, an action under the provision does not lie."

As per the law enunciated by the Apex Court and this Court, it is clear that there is no bar as far as rights of the plaintiff-Trust against the defendant-Trust created for the maintenance of plaintiff-Trust to institute the legal proceedings in any Court of competent jurisdiction is concerned. It is true that, Courts below have held that Section 92 of CPC is a bar, much against the reliefs claimed. Section 92 of CPC is a special provision for protection of public rights in the public trust and charities and it is limited to the reliefs enumerated specifically in the different clauses of the Section. Thus, if suits are to be instituted by a trustee or trust in its individual/personal interest, it could go before the Court having jurisdiction to entertain the dispute.

The learned counsel invited my attention to the Register of the Public Trusts maintained by the Office of the Assistant Charity Commissioner to establish that the defendant-Trust was created only for the maintenance of plaintiff-Trust. This relationship between plaintiff-Trust and defendant-Trust is lost sight of by the Courts below. The defendant-Trust is not a stranger to the plaintiff-Trust and plaintiff-Trust is claiming the income of defendant-Trust in its individual capacity. In view of the law that emerges as noticed above, the trial Court as also the lower appellate Court which has confirmed the judgment and decree of trial Court committed an error in holding that the suit cannot be entertained by the trial Court under Section 9 of CPC, the same is not sustainable.

In the circumstances, the substantial question of law framed is answered in favour of the appellant. Accordingly, the appeal is allowed and the matter is remanded back to the trial Court to entertain the suit and dispose of the same in accordance with law after issuing notice to the respondent, providing an opportunity of hearing to the parties.