Thakur Saran Singh and Others vs Joginder Sen and Others

V.P. Bhatnagar, J.—This order is meant to dispose of an application filed under the provisions of Section 92 of the CPC for obtaining leave of the Court to institute a suit praying for the removal of Respondents No. 1 and 2 as trustees of Mandi Dharamshala (Mandi House) at Haridwar and for appointing new trustees in their place. The relief would also be to the effect that Respondents No. 1 and 2 be called upon to render accounts of the aforesaid Dharamshala and further for restraining them from changing the nature of the property in any manner whatsoever.

It may be noticed at the very outset that a civil suit bearing No. 3 of 1985 was instituted by the applicants in this Court before moving the application asking for leave of the Court to institute the said suit. In the first instance, an application under Order 1, Rule 8, CPC was also filed for suing the Respondents in a representative capacity. This application was, however, later on withdrawn and instead the application now under consideration praying for leave of the Court for instituting a suit u/s 92 of the CPC was filed.

The averments made in the application and the plaint may now be stated. The applicants belong to Hindu religion having faith in Sanatan Dharama. The persons belonging to this faith go to Haridwar for the immersion of last remains of the d;ad persons in the sacred water of Ganges. They also visit Haridwar to attend important festivals and to have a holy dip in the sacred river. "Madhav Rai Trust" was opened by the erstwhile ruler of Mandi State for the benefit of people of Mandi belonging to Sanatan Dharama sect. This trust was created at Mandi for public purposes of charitable and religious nature and the trust property is partly situate at Mandi and partly at Haridwar. However, Mandi Dharamshala at Haridwar was constructed out of the funds of Mandi people for their own benefit. Shri Kama Dhar son of Shri Bal Krishan resident of Purani Mandi, Mandi Town, was installed as a Manager of Mandi Dharamshala at Haridwar. Shri Dhar remained In-charge of the management of this Dharamshala till his death 4 years ago. Respondents No. 1 and 2 are trustees of this property. Respondent No. 17 in order to deprive the members of the Hindu community belonging to Sanatan Dharama sect of this property, executed a registered deed dated September 14, 1982, at Mandi, appointing Respondent No. 4 as attorney and, inter alia, has authorised the latter to change the very nature of the trust property at Haridwar. Respondent No. 4 is now converting the Dharamshala into shops and a motel and thus destroying the trust property.

The application has been resisted by the Respondents on several grounds including the one that the property in question belongs to the Raja of Mandi and has been declared as such by the Government of India. I need not go into all those grounds because one of the main question which falls for determination at the very thresh-hold is whether this Court has the terrtorial jurisdiction to adjudicate upon this controversy and try this application/suit.

As explicitly brought out above, the reliefs sought in the contemplated suit pertain solely to the property situate at Haridwar in Uttar Pradesh. It is, therefore, to be determined whether action pertaining to such a public charity can be maintained in the civil Courts of Himachal Pradesh.

Section 92 of the CPC clearly provides that the leave of the Court to institute a suit thereunder has to be of the principal Civil Court of original jurisdiction or of 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.

The main contention of Mr. M. L. Sharma, learned Counsel for the applicants, has been that the applicants have alleged that a part of the trust property is situate at Mandi. if the applicants succeed in proving it, this Court would be competent to hear the application and the suit. He has also emphasised that the trustees are residing within the territorial jurisdiction of this Court and, therefore, the Courts in Himachal Pradesh would certainly have the jurisdiction to grant the leave to institute the suit. I am afraid I cannot agree.

Even if some part of the trust property is situate at Mandi and, therefore, within the territorial jurisdiction of this Court, no relief whatsoever is sought qua that property. It is crystal clear from the averments made in the application that the entire relief sought is with respect to the Mandi Dharam-shala situate at Haridwar. Section 92 lays emphasis on the place of location of the subject-matter of the trust in order to determine the Court which will have jurisdiction to try the suit pertaining to that subject-matter. The rationale behind this pro-ivision is that the reliefs available with respect to charitable and religious trusts created for public purposes can be more conveniently granted and the trust property managed for the benefit of beneficiaries by the Courts having territorial jurisdiction in the place where that property is situate. Section 92 contemplates special type of suits wherein only those reliefs can be allowed which are specifically indicated therein. On the Ipoint of territorial jurisdiction, its provisions over-ride the Igenefal provisions contained in Sections 16 - 20 of the Code of Civil Procedure. Thus, it is of no consequence that the trustees reside at Mandi or that the registered deed dated September 14, 1982 was executed at Mandi. If part of the trust property jis situate within the territorial jurisdiction of this Court at (Mandi, this also can be of no avail to the applicants since no (relief relating to this property has been sought.

It has been held in Kanji Jethsi v. The Advocate General 18 Bombay Law Reporter 60, that ".... where the charitable objects lie without the jurisdiction of the Courts, the most the Courts can do is to safeguard the funds intended to be applied to those charitable purposes where such funds lie within the Court''s jurisdiction and thereafter leave the application of them to the intended objects of the testator''s bounty to the Courts of the country within whose jurisdiction those objects are."

In Ramlal Hargopal v. Kisanchandra and Ors. AIR 1924 PC 95, one Mahanandram Puranmal had founded two temples in the State of Hyderabad which was ''then the dominion of the Nizam and a third temple in British India but outside the District of Berar. Three jagir villages, one within the Nizam dominions and two within District of Berar. situate in British India, were subsequently granted by Government for the support of the worship in these temples. Disputes arose in 1907 amongst the descendants of Mahanand-ram Puranmal as to who had the right to manage the temples and the jagir villages as trustees. A suit was first instituted in the Court of the District Judge, East Berar who held that he had no jurisdiction to try it and, therefore, dismissed the suit. The parties thereafter jointly referred these and some other disputes to their family priest as an Arbitrator who gave his award in April, 1907. The award was then required to be filed in the Court for making it rule of the Court and the question arose whether Berar Court would have the jurisdiction or not. It has to be kept in mind that two of the jagir villages were situate in the District of Berar. On the above facts, their Lordships of the Privy Council held:

It was contended on behalf of the Appellant that if an award relates to more than one subject-matter and only one is within the jurisdiction of the Court, it cannot be filed in that Court, in fact, that it can be filed in no Court because no one would have jurisdiction over the whole subject-matter. Their Lordships deem it unnecessary to rest their judgment on any such general proposition. In their view there is no substantial question decided by the award which affects property within the jurisdiction of the Berar Court. No one of the three temples is within that jurisdiction, and two of them are within the dominions of the Nizam and outside British India. A large part of the award relates to family questions, and money payments to be made by members of the family, and all the members of the family are within the Nizam''s dominions. It was urged that two of the villages which form the principal endowments of the temples are situated in Berar. But their Lordships cannot find that there was any dispute concerning the ownership or management of the villages nor any denial that the revenues must be appropriated to the three temples.

It was accordingly held that the District Judge of Berar had no jurisdiction to deal with the award.

The next case which is of considerable assistance is AIR 1944 39 (Privy Council) In that case, the charity concerned was a hospital at a town in the Jaipur State. The hospital was, however, being funded by the income derived from immovable property situate in Bombay. This property had been acquired for the trust as an investment of its funds. A suit was brought on the original side of the High Court at Bombay u/s 92 of the CPC praying that Defendants be removed from their office as trustees and that new trustees be appointed by the Court and further that accounts be rendered by the Defendants who were alleged to have mis-applied the funds. The matter went up to the Privy Council where it was held that the Bombay Courts had no jurisdiction and, that the adjudication of disputes should be left to the Courts of Jaipur State.

Thus, it is well-settled rule by now that if a Court is not in a position to supervise the carrying out of a charity it will not frame a scheme with respect to that charity but will take such steps only as are necessary to safeguard such trust funds as lie within its jurisdiction. In that case, the Court will restrict the grant of relief to those trust funds within its own jurisdiction but would leave the actual administration of the ;charity to the Court within whose jurisdiction the subject-matter of the trust is situate. However, no such problem arises in the present case because the subject-matter of the trust with respect to which reliefs are sought is outside the jurisdiction of this Court.

Mr. M. L. Sharma, learned Counsel for the applicants has heavily banked upon the law laid down in M. Ar. Rm. M. Annamalai Chettiar and Ors. v. Ah A.C.T. Solaiyappa Chettiar and Anr. AIR 1935 Mad 983. In that case the Defendants had been charged with mal-administration of the trust funds which amounted to over 5 lakhs of rupees. Thus, the subject-matter of the trust comprised of money which had to be followed in the hands of the Defendants. Clearly, the observations made on those facts cannot be extended so as to cover the present case.

The case law discussed above, in my opinion, plainly fortifies me in the conclusion that this Court has no jurisdiction to grant leave to the applicants to file a suit under the provisions of Section 92, Code of Civil Procedure, on the very face of the averments made in the application. The application is, therefore, rejected.