S. Gurucharan Singh Bhasin vs S.S. Mota Singh (Nila) Charitable Trust and Others

T.S. Thakur, J.—This appeal arises out of a judgment and decree dated 19th March, 2001 passed by the Additional District and Sessions Judge, Delhi whereby the plaint filed in Suit No. 443 of 2004 by the plaintiff-appellant has been rejected under Order 7 Rule 11 of the CPC. The Court below has taken the view that since the Suit was in the nature of a suit u/s 92 of the C.P.C., the same could be maintained only if it was filed by two persons after obtaining the leave of the Court.

The appeal was heard at considerable length by us in the course whereof learned Counsel for the parties not only referred to the provisions of Section 92 of the C.P.C. but also the decisions of the Supreme Court in support of their respective contentions. Reliance in particular was placed by Mr. Gupta, counsel for the appellant upon the decision of the Supreme Court in Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, . Reliance was also placed by Mr. Gupta upon the decision of the Supreme Court in R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, and judgment of the High Court of Kerala in Kesava Panicker Vs. Damodara Panicker and Others, and Sukumaran and Others Vs. Akamala Sree Dharma Sastha Idol and Others, . It was contended by Mr. Gupta that the present suit for declaration did not fall u/s 92 of the C.P.C. as the plaintiffs-appellants were not seeking any relief for vindication of any public right qua the trust. The Suit was, according to the learned Counsel for declaration of the personal rights of the plaintiffs-appellants and the denial of the rights of the defendants to hold the office of trustees. The same, therefore, fell beyond the provisions of Section 92. Reliance in particular was placed upon the following passage appearing in decision of the Supreme Court Swami Parmatmanand Saraswati''s case (supra).

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 cir 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.

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.

We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a trust bring a suit purporting to be u/s 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the trusts, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons u/s 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons.

We think that the purpose of the suit was to settle the controversy as to whether Krishnabodhashram or respondent No. 1 had the better claim to the headship of the Math and to the possession and management of its properties by obtaining a declaration of the Court.

The Trial Court as well as the High Court found that there was no evidence to substantiate the allegations regarding the breach of trust said to have been committed by respondent No. 1. In paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were no clear allegations of maladministration viz., that respondent No. 1 was diverting the trust properties for his personal benefit or that he was committing any deyastavit.

Per contra, Dr. Singhvi, counsel for the respondents strenuously argued that the averments made in the plaint clearly established that the Suit was one falling u/s 92 of the C.P.C. He submitted that if the plaintiffs seek a declaration to the effect that the defendants or any one of them is not a validly nominated trustee of the trust coupled with an injunction restraining them from discharging their function as such, it will tantamount to removing the trustees within the meaning of Section 92(1)(a) of the C.P.C. The fact that the plaintiff-appellant also prayed for appointment of an administrator for administring of the affairs of the trust was, according to Dr. Singhvi, suggestive of the plaintiff alleging misfeasance, malfeasance and nonfeasance in managing the affairs of the trust by those who are in charge of such affairs. The absence of any allegation in the plaint suggesting any misappropriation of trust money or defalcation of accounts or malversation of property was, according to the learned Counsel, inconsequential so long as the predominant object behind the filing of the suit was to correct the management and the affairs of the trust. Reliance was placed by Dr. Singhvi upon the decisions of the Supreme Court in Bishan Das and Others Vs. The State of Punjab and Others, ; M.K. Rappai and Others Vs. John and Others, ; Sugra Bibi Vs. Hazi Kummu Mia, and Sheikh Abdul Kayum Vs. Mulla Alibhai, , apart from a few other decisions of different High Courts in the country.

At the conclusion of the arguments we were of the view that since the plaintiffs-appellants and the respondents with the exception of respondent No. 7 were closely related to each other and are members of the same family and since the dispute related to a society which was closely held by the members of the family of Sardar Mota Singh, it would be more appropriate to explore the possibilities of some kind of a settlement not only because the ongoing litigation is bound to result in bitterness and bad blood among the parties but also because any strife among the trustees is likely to affect working of a number of educational institutions which the trust has established over the years. We had, accordingly, suggested Mr. Gupta counsel appearing for the plaintiffs-appellants that the matter could be referred for mediation to explore such a possibility. In fairness to Mr. Gupta, we must mention that he had no objection to any such attempt being made by a Mediator nominated by the Court. Dr. Singhvi, learned senior counsel for the respondent had, however, sought time to take instructions whether the respondents were willing to sit across the table and negotiate a settlement with the appellant. We had, on that note, concluded the arguments and reserved pronouncement of orders hoping to get a positive response from the respondents for an amicable resolution of the disputes.

Mr. Siddharth Yadav, learned Counsel appearing for the respondents then mentioned the matter in chambers and while expressing his defdience about the prospects of a settlement in mediation suggested that a reference to the mediation center in the High Court could be considered by the Court although the unsavory events that had according to the learned Counsel taken place over the past few years had left little chance for any such attempt to prove successful.

We have, in the above backdrop and upon careful consideration of all the possible angles, come to the conclusion that a reference to a Mediator nominated by the Court may not be entirely fruitless. We say so because there are elements of a settlement of the dispute by mediation. We are also of the view that the eminence of the Mediator would itself be a factor that would help resolving the matters and foster good relation between the parties who have been engaged in bitter legal battle with each other. The fact that the plaintiff- appellant is admittedly a life trustee in the trust is an additional reason why the two parties shall have to sooner or later bury the hatchet and join hands with each other to promote the laudable objects for which the trust was established. Continued alienation of even one of the trustees from the affairs of the trust would not be conducive for the trust, for it can add further fuel to the raging fire. At any rate if the parties continued to remain obstinate and unrelenting in their attitudes the option of resolving the controversy by an adjudicatory process in the Court would always remain available.

We accordingly refer the dispute between the parties to the mediation of Hon''ble Mr. Justice Kuldeep Singh, former judge of Supreme Court of India with a request that the worthy Mediator may make an attempt at bringing about an amicable settlement between the parties. The parties shall appear before the learned Mediator on 8th September, 2007 at 10:30 at his residence in Chandigarh or at such other place as the learned Mediator may fix for that purpose. Needless to say that the Mediator shall be free to fix his fees. We hope and trust that the mediation proceedings would conclude early and the end result of the same reported to this Court as expeditiously as possible. The parties shall file copies of all the relevant pleadings and documents before the Mediator.