Gian Chand and Others vs Harbans Singh and Others

Bhawani Singh, J.—This revision petition assails the order of District Judge, Una, in Civil. Misc. Application No. 47 of 1989, thereby dismissing the application of the Petitioners u/s 92 of the CPC for permission to sue for the removal of existing trustees of a public charitable trust.

Briefly the case is that an application u/s 92 of the CPC was moved for the removal of the present trustees of the alleged charitable trust consisting of a Serai (Inn), Well and Chhabil (a stall for serving cold water to the travellers) situate in village Amb, District Una. It is alleged that one Udham Singh son of Partap Singh, resident of village Amb constructed a Inn, dug a Well and set-up a Clihabil on the land comprised in Khasra Nos. 1809, 1810, 1811 and 1941 situate in Village Amb, District Una, sometime in the year 1927-28. During the lifetime of Udham Singh, he himself was the trustee and upon his death, his two wives, namely, Smt. Barnial and Smt. Bijjarwal became the trustees. On their death, Smt. Balwant Devi, daughter of one of those widows, namely Bijjarwal, became the trustee. She also died on November 7, 1980, where after, the Respondents No. 1 to 6 being her sons, came in possession of the property of the trust. Further, the case is that initially the land was recorded as Shainlat Deh in the revenue papers. With the enforcement of the Punjab Village Common Lands (Regulation) Act, the Gram Panchayat was recorded as its owner in the revenue papers. Thereafter on the commencement of the Himachal Pradesh Village Common Lands (Vesting and Utilization) Act, 1974, the name of the State of Himachal Pradesh was recorded as owner.

It is stated that the Respondents, after coming in possession of the property, started demolishing the Inn and in its place shops are being constructed. The applicants further alleged that this act of the Respondents amounts to misappropriation of the trust property and, therefore, they are liable to be removed from the trusteeship. With this end in view, an application u/s 92 of the CPC was moved which has been contested by the Respondents. Respondents No. 1 to 6, while opposing the application, have stated that the property was their private property and was inherited as such. It has also been stated that the applicants have no interest in the alleged trust and, therefore, they have no knus-stondi to sue or even to ask for permission to sue.

In the application, the Petitioners say that they have locus-standito do so since they belong to Raj put community and have interest in the trust. Kashmir Singh, one of the applicants, goes further than this and state that he is related to Udham Singh so on this ground as well, he is interested in the trust.

After hearing the parties, and referring to Mahant Harnam Singh, Chela of Bhai Narain Singh Vs. Gurdial Singh and Another, and AIR 1984 Mad 328 (P. Sixagumnatha Pillai and Anr.) v. P. Mani Pillai), the District Judge reacted the application. It has been observed in the order that the Petitioner may belong to the same caste but that does not mean that they have interest in the trust property. Regarding Kashmir Singh also it has been said that even if he has some relation with Udham Singh that also was of no consequence.

These findings have been challenged before this Court by the Petitioners. Miss Bandna Lakhanpal has very ably and strenuously contended that the order of the District Judge is palpably wrong. She also contends that, the reliance on certain judicial decisions by the learned District Judge was also wrong since the facts of this case are entirely different, besides, there is a sea-change in the judicial decisions which have not only bearing in the present case but are also later in point of time. She has placed reliance on Chenchu Rami Reddy and Another Vs. Government of Andhra Pradesh and Others, In this decision, the following observations of the Supreme Court are worth quoting:

More often than not detriment to what belongs to ''many'' collectively, does not cause pangs to ''any'', for no one is personally hurt directly. That is" why public officials and public-minded citizens entrusted with the care of ''public property'' have to show exemplar vigilance. What is true of ''public property'' is equally true of property belonging to religious or charitable institutions or endowments. The facts of the present case involving the sale of lands which have been sanctioned to be sold for about Rs. 20 lakhs by private negotiations, instead of by public auction, which the Appellants are prepared to purchase for about Rs. 80 lakhs, illustrate this point in a telling manner.

Again in para 10, the Court observed as under:

We cannot conclude without observing that property of such institutions or endowments must be jealously protected. It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison deter of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-best-attention approach to guard against all pitfalls. The approving authority must be aware that in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or understanding with the purchasers at the cost of the concerned institution. Those who are willing to purchase by private negotiations can also bid at a public auction. Why would they feel shy or be deterred from bidding at a public auction? Why then permit sale by private negotiations which will not b? Visible to the public eye and may even give rise to public suspicion unless there are special reasons to justify doing so ? And care must be taken to fix a reserve price after ascertaining the market value for the sake of safeguarding the interest of the endowment. With these words of caution we close the matter.

Miss Bandna Lakhanpal further cited latest decision of the Supreme Court, namely R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, . In this case, the apex court has very exhaustively dealt with the scope of Section 92 of the Code of Civil Procedure. It is quite clear from the decision that the principle of locus-standi, which was hitherto confined within certain rigid limits has been given abroad interpretation. After referring to certain decisions of the same Court, Justice Kuldip Singh, speaking for the Court observed in paras 9,10 and 11 as under:

The legal position which emerges is that a suit u/s 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. 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. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of filing a suit u/s 92 of the Code and the suit-title in that event would show only their names as Plaintiffs. Can we say that the persons whose names are on the suit-title are the only parties to the suit? The answer would be in the negative. The named Plaintiffs being the representatives of the public-at-large which is interest in the trust all such interested persons would be considered in the eyes of law to be parties to the suit. A suit u/s 92 of the Code 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. Sic for that reason that explanation v. Ito Section 11 of the Code constructively bar by res-judicata the entire body of interested persons from repaginating the matters directly and substantially in issue in. an. earlier suit u/s 92 of the Code.

Mr.G. Ramaswanry. learned Counsel appearing for the Respondent trust has argued that only the two persons who filed the original suit can be considered as parties'' in terms of Clause 14 of the scheme-decree and according to him since the Appellants were not the Plaintiffs they have no locust and I to file any application under clauses 13 and 14 of the scheme-decree. According to the learned Counsel Section 92 of the Code brings out a dichotomy in the sense that there are ''parties to the suit1 and ''persons interested in the trust''. According to him persons interested in the trust cannot be considered parties to the suit although the judgment/decree in the suit is binding on them. He has also argued that a suit u/s 92 of the CPC is different from a suit filed under Order 1 Rule 8 of Code of Civil Procedure. We do not agree with the learned Counsel. A suit whether u/s 92 of CPC or under Order 1 Rule 8 of CPC is by the representatives of large number of persons who have a common interest. The very nature of a representative suit makes all those who have common interest in the suit as parties. We, therefore, conclude that all persons who are interested in Venkata-rayulu "Naidu Charities which is admittedly a public trust are parties to the original suit and as such can exercise their rights under clauses 13 and 14 of scheme-decree dated September 9, 1910.

It is not necessary to go into the finding of the High Court that two of the Appellants being Muslims can have no interest in the trust as the other two Appellants claim to be the beneficiaries of the trust and their claim has not been negatived. Moreover, the trust has been constituted to perform not only charities of a religious nature but also charities of a secular nature such as providing for drinking water and food for the general public without reference to Caste or religion.

In view of the latest trend of judicial decisions and with a view to protect the trust property from being annihilated by the trustees, it is always desirable that any right-spirited person may come forward and complain such an aggression in order to protect the trust property and carry on the wish of the person who may have created the same. Giving of locus-standi to such a person is all the more important, since violations of trust properties in recent years are becoming well-known.

In the present case, without touching the merit of the case, the Respondents have gone even to the extent of saying that these properties do not belong to any trust and they are their private properties. In such a situation, the learned District Judge should ha v. allowed the application to enable the Petitioners to pursue the matter further.

The result of the aforesaid discussion is that there is merit in this revision petition and the same is allowed and the order of the District Judge Una, dated June 3, 1989, is set aside. The application of the Petitioners is allowed. The District Judge, Una, is directed to proceed in the matter in accordance with law. Parties are left to bear their own costs.