Ramzan Memorial Educational Trust And Others @APPELLANT@Hash Fareeda Akhter

The learned Additional District Judge, Sopore, has in terms of the order dated 29.02.2016, (for short referred as impugned order) dismissed the application of applicants/defendants, presented under Order VII Rule 11 of CPC for rejection of the suit filed by respondent herein. This according to the petitioners has been done erroneously and illegally and so the instant petition filed for challenging the same. It is further canvassed that the order so passed has resulted in miscarriage of justice. It appears from the perusal of the file that a suit has been filed before the said Court by the respondent herein, wherein she has claimed the following reliefs:

"(a) Decree of declaration be passed in favour of plaintiff and against defendants, declaring plaintiff to be entitled to the share of suit property of deceased Ghulam Nabi Bhat, according to the Personal Law and plaintiff be declared Co-owner/Co-sharer of the suit property;

(b) Decree of declaration be passed to the effect that plaintiff is the Chairman of Ramzan Educational Trust Ranji, Tehsil Sopore and further the Trust Deed dated 04.02.2010 executed by the defendants be declared as illegal and ineffective against the rights of the plaintiff;

(c) Decree for partition of the suit property described above be passed in favour of the plaintiff and before passing final decree, a preliminary decree be passed, declaring shares of the parties, i.e., plaintiff and defendant Nos 1 to 3 and thereafter plaintiff be put in separate possession of her share;

(d) Decree for permanent injunction be passed in favour of the plaintiff and against the defendants to the effect that they, the defendants be permanently restrained from changing in any manner the nature of suite property or effect any construction thereupon or create any third party interest by way of sale, gift, exchange, lease or will in the suit property;

(e) A Decree for prohibitory injunction be passed in favour of plaintiff and against defendants prohibiting them from causing any interference in functioning of the plaintiff as Chairman Ramzan Memorial College of Education, Ranji, Tehsil Sopore and further to be restrained from causing any interference in the rights of the plaintiff over the Trust/Trust property.

(f) Any other decree to which the plaintiff is entitled to and not specifically prayed for, be passed in favour of the plaintiff and against defendants;

(g) Plaintiff be also awarded Costs of the suit."

It had been pleaded by her that the property referred in the schedule of the plaint was required to be partitioned and injunction was also required to be granted against the defendants viz the property detailed therein the Schedule, alongwith trees standing therein, being joint between the parties. Attention has been drawn towards clause 22 of the Trust Deed, whereby the deceased Ghulam Nabi Bhat had nominated the plaintiff as chairman of the College.

An application was filed by the petitioners herein for rejection of the plaint, wherein grounds have been taken that the defendant No. 1 is the trust, named and styled as Ramzan Memorial Educational Trust and the plaintiff seeks declaration to the effect that she be declared as Chairman of this trust. This trust has been created for public purposes of charitable nature and the plaintiff through medium of the suit seeks direction of the Court to be declared as Chairman of this trust and intervention of the court is sought for such appointment. It is also averred that the plaintiff cannot file the suit in the present form as under law it is the Advocate General or two or more persons having an interest in the trust and having obtained the leave of the Court can institute a suit in the present form. The said legal formality is lacking and once the suit impugned has been filed in gross derogation of this mandate of law, the suit falls within clause (d) of Order VII rule 11 CPC for rejection of the plaint. The statutory obligation has not been followed as the suit seeks appointment of plaintiff a new trustee in the capacity of its Chairman.

These points raised are elucidated in petition as:-

(i) The contents of the plaint and Trust Deed on which plaintiff relies in regard to her claim including the claim over the Trust property unmistakably shows that the trust was created for charitable purpose for development of education. It is specifically stated that the income of the property of the trust shall be utilized for the promotion and development of the objectives of the Trust. Clause (03) of the Trust Deed further provides that the Trust can accept and receive donation, grants, presents, subscription, dividends and can raise funds in cash or in kind for achieving the aims and objectives of the Trust. The founder of the Trust Ghulam Nabi Bhat was declared its Managing Trustee and his son Farooq Ahmad Bhat (Defendant No. 1) was the Secretary of the Trust. The Trustees were also required to contribute equally towards the Trust. The Trustees under the terms of the Trust Deed were bound to manage and deal with the Trust property in such a manner as might be beneficial to the interest of the Trust. The Trust was created for all purposes and intendments. On the plain reading of the terms of the Trust Deed, RMET is one which is created for public purpose of charitable nature. The contents nowhere admit of the intention of the founder and the Trustees that it was created for private purpose of dividing its assets to the successors of founder trustees Ghulam Nabi Bhat, in terms of principle of Mohammadan Law.

(ii) The plaintiff besides other reliefs claims that further Trust Deed executed after the death of Ghulam Nabi Bhat dated 04.02.2010, be declared null and void and she be declared to be the Chairman of Ramzan Educational Trust. The reliefs claimed come within the ambit of Section 92 of CPC. The plaintiff having not complied with the mandatory provisions of law in filing the suit cannot maintain it, which is liable to be dismissed. The trial Court has committed serious jurisdictional error in rejecting the application made by the defendants for rejection of the plaint. The plaintiff had also invoked clause (22) of the Trust Deed and has said that in terms of document dated 17.06.2009, she has been nominated a chairman of the Trust. The contents of the plaint and the documents relied upon by her in the plaint including the original Trust Deed executed on 22.08.2006, leave no room for doubt that Trust was created for public purpose of charitable nature. In terms of the contents of the Trust Deed donations has also been received by the Trust from various institutions as shown in Annexures H&J. The Trust has been, therefore, in terms of the Trust Deed receiving donations which by no stretch of imagination can be said to have been received in private capacity for inheritance of the survivors of Late Ghulan Nabi Bhat. Needless to say that the Trust Deed makes a sweeping remark that Trust will be a private Trust but having regard to the contents of the Trust Deed and the terms thereof the Trust for all purposes and intendments has been created for public purpose for advancement of education in various fields. The bylaws framed, copy whereof is marked as Annexure K, also shows that Trust was created for public purpose of charitable nature.

(iii) The Government orders issued regarding grant of permissions to the Trust to impart education including instructions in B. Ed course. The Government Order No. 164/HE of 2007 dated 14.08.2007, marked as Annexure-L is placed on record to show that all the provisions of SRO 339 dated 20.12.2005, are applicable including all labour laws and other welfare measures provided for the staff of the college, denuding the claim of the plaintiff that the Trust was a private Trust and its properties are to be inherited by the heirs of late Ghulam Nabi Bhat under the principles of Mohammadan Law, including the plaintiff and defendants.

The learned Trial Court rejected the application of the applicants/defendants vide order dated 29.09.2016, with following observations:-

"The plaintiff has prayed for the reliefs that plaintiff be declared owner to the extent of her share as being the widow of Gh. Nabi and also prohibitory injunction restraining the defendants from changing the nature of the suit property.

From the plain reading of the plaint, it would appear that the plaintiff through the plaint is vindicating her individual rights only by claiming her share from her deceased husband's property as per share. Though she claims her share also from the property which is trust property, but that does not mean that she is claiming any of the relief as contained in section 92 CPC.

Further, if we go through the trust deed of 2006 and 2010, copies of which are placed on the record, it would appear that one of the recitals mentioned in these two trust deeds is that the trust is a private trust. The trustees mentioned in the trust deeds are family members.

It appears without any dispute from the averments of plaint of plaintiffs that she is not seeking vindication of public rights but is purely asking for share from the property of her deceased husband as being the widow including the trust property. Therefore, in my opinion provisions of Section 92 CPC is not applicable. As such the pliant cannot be rejected under Order 7 Rule 11 as barred by law.

That one of the relief prayed by the plaintiff in the plaint is that she be declared as Chairperson of Ramzan Memorial Trust in view of deed executed by her husband in her favour. In this relief also she is not asking for vindication of any public rights but is vindicating her individual right merely to appoint her as chairperson of the trust.

The case laws referred by the learned counsel for the defendants/applicants are not applicable in the instant case.

In the backdrop of what has been stated above, the application filed by the defendants/applicants under Order 7 Rule 11 CPC for rejection of plaint is dismissed/rejected."

Mr. Lone, learned counsel for the petitioners while reiterating the grounds taken in the petition has submitted that on a plain reading of the averments of the plaint, it is evident that the plaintiff is seeking enforcement of her rights in the Trust property. He has in particular referred to para 6 of the plaint. His further arguments are akin to those referred above and taken in revision petition.

Considered the arguments of the learned counsel and the material on record. To appreciate the merit of contention of the petitioners, it is proper to refer Section 92 of CPC.

"In the case of any alleged breach of any express or 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 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;

(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 sold, mortgaged or exchanged;

(g) Setting a scheme;

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

It has been noticed herein above that the plaintiff/respondent is seeking a decree from the Court for partition of the suit property including the property covered by the Trust. The properties left behind by the deceased husband of the respondent are quoted in the Schedule referred supra. She is also seeking a decree of perpetual injunction including one for restraining the other side for causing any interference in her rights in the Trust property. For application of the rigour or bar in terms of order VII Rule 11, the Court is required to have a meaningful perusal of the averments in the plaint and to see if there is ground as enumerated under the said rule for rejection of plaint. It is no more res-integra that rejection would entail only if it appears from the statements in the plaint to be barred by any law.

The principal object behind the enactment of Section 92 is protection of the trusts and prevent vexatious proceedings initiated by irresponsible persons against the Trustee. While bearing in mind the objective behind enactment of Section, it can be safely stated that the plaintiff does not sue to vindicate the rights of the public but seeks enforcement of her individual or personal rights. A summary view of the averments is suggestive of the fact that the right which is being mainly claimed by the plaintiff is a private right in property. One of the reliefs claimed therein has a link with the Trust but it does not render the main relief insignificant.

In the case of Vidyodaya Trust v. Mohan Prasad R & Others, reported in (2006) 7 SCC 452, their Lordships of Hon'ble Apex Court have held that it is not every suit claiming reliefs specified in Section 92 that can be brought under the said Section, but only the suits which besides claiming any of the reliefs are brought by the individuals as representatives of the public for vindication of public rights. Their Lordships further observed that 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. Their Lordships also made reference to the judgment of Apex Court in the case Sugra Bibi v. Hazi Kummu Mia, reported in AIR 1969 SC 884, wherein it was held that the mere fact that the suit relates to public trust of religious or charitable nature and the reliefs claimed fall within some of the clauses of sub Section (1) of Section 92 would not by itselfattract the operation of the Section, unless the suit is of a representative character instituted in the interest of the public and not merely for vindication or the individual or personal rights of the plaintiffs.

In this regard, it will be profitable to quote the observations of the Supreme Court made in the paragraph nos. 16 and 22 of the case titled " Sopan Sukhdeo Sable v. Assistant Charity Commissioner, reported in AIR 2004 SC 1801, paragraph Nos. 16 and 22 of which read as under:

"16. Submission of learned counsel for respondent No.2- trust was that requirement of law being reading the plaint in its totality, the appellants cannot take the plea that they would give up or relinquish some of the reliefs sought for. That would not be permissible. The plea clearly overlooks the basic distinction between statements of the facts disclosing cause of action and the reliefs sought for. The reliefs claimed do not constitute the cause of action. On the contrary, they constitute the entitlement, if any, on the basis of pleaded facts. As indicated above, Order VI Rule 2 requires that pleadings shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim. If the plea of Mr. Savant, learned counsel for the respondent-trust is accepted the distinction between the statement of material facts and the reliance on them for the claim shall be obliterated. What is required in law is not the piecemeal reading of the plaint but in its entirety. Whether the reliefs would be granted on the pleaded facts and the evidence adduced is totally different from the relief claimed. All the reliefs claimed may not be allowed to a party on the pleadings and the evidence adduced. Whether part of the relief cannot be granted by the Civil Court is a different matter from saying that because of a combined claim of reliefs the jurisdiction is ousted or no cause of action is disclosed. Considering the reliefs claimed vis-a-vis the pleadings would not mean compartmentalization or segregation, in that sense. The plea raised by the respondent-trust is therefore clearly unacceptable.

Under Order II Rule 1 of the Code which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards. If the plaintiffs as contended by Mr. Mohta want to relinquish some reliefs prayer in that regard shall be done before the trial Court. A reading of the plaint and the reliefs along with the contents of the plaint goes to show that the main dispute relates to the question of continuance of tenancy and the period of tenancy. They are in essence unrelated with the other reliefs regarding enquiry into the affairs of the trust. Such enquiries can only be undertaken under Section 50 of the Act. For instituting the suit of the nature specified in Section 50, prior consent of the Charity Commissioner is necessary under Section 51. To that extent Mr. Savant is right that the reliefs relatable to Section 50 would require a prior consent in terms of Section 51. If the plaintiffs give up those reliefs claimed in accordance with law, the question would be whether a cause of action for the residual claims/reliefs warrant continuance of the suit. The nature of the dispute is to be resolved by the Civil Court. The question of tenancy cannot be decided under Section 50 of the Act. Section 51 is applicable only to suits which are filed by a person having interest in the trust. A tenant of the trust does not fall within the category of a person having an interest in the trust. Except relief in Para D of the plaint, the other reliefs could be claimed before and can be considered and adjudicated by the Civil Courts and the bar or impediment in Sections 50 and 51 of the Act will have no relevance or application to the other reliefs. That being so, Sections 50 and 51 of the Act would not have any application to that part of the relief which relates to question of tenancy, the term of tenancy and the period of tenancy. The inevitable conclusion therefore is that Courts below were not justified in directing rejection of the plaint. However, the adjudication in the suit would be restricted to the question of tenancy, terms of tenancy and the period of tenancy only. For the rest of the reliefs, the plaintiffs shall be permitted within a month from today to make such application as warranted in law for relinquishing and/or giving up claim for other reliefs."

Viewing the matter in the light of above backdrop, I am of the opinion that the learned Trial court has not erred in arriving at a conclusion referred above. The pleas taken in the revision petition including the contention that objective for creation of the Trust was public in nature would not bar the trial of the case. No jurisdictional error is found in the impugned order or the learned trial Court having found to have exercised jurisdiction not vested in it. Accordingly, there appears to be no merit and substance in the petition of the petitioners. The same entails dismissal and is, accordingly, dismissed.

Record be returned back.