Author Archives: sajikoduvath

Saji Koduvath, Advocate, Kottayam.

Synopsis

1. Sec. 92 CPC: Public charities
2. Parens Patriae and Section 92 CPC
3. Duty of the Court to Protect the Trust
4. S. 92: Prima Facie Satisfaction from the Plaint, Sufficient
5. S. 92: Plaint Allegations Alone Looked Into First
6. Plaintiffs need not be Personally Interested
7. After Evidence, Suit can Dismissed, If Not Maintainable
8. Removal of Trustees
9. “Other Relief as the Nature of the Case May Require”
10. Conditions to Attract Section 92
11. Section 92 Suit: Suit of Special Nature
12. Object of Sec. 92 CPC – Prevent Frivolous Suits
13. Permitted to Sue without Joining all Beneficiaries
14. Sec. 92 CPC and Property of a Society or a Temple
15. Why Sec. 92 CPC is Not Attracted to Matters of a Society
16. Effect of Registration of a Trust as Society
17. Rules/Bylaws of Trust and Section 92
18. Suits Outside the Scope of Section 92
19. Suit for Asserting Office
20. Suit for Vindicating Personal Rights
21. Courts Go Beyond Reliefs to Decide if Suit Falls U/S. 92
22. Object and Purpose, Not the Relief, which is Material
23. Suit by the Deity: Outside S. 92 CPC
24. Alienation of Property: Declaration outside S.92 
25. Rights of Beneficiaries/Worshippers to File a Suit
26. Section 92: A Representative Action
27. Suit for Proper Administration of Trust
28. Direction of Court for Administration of Public Trust
29. Whether Bar for Ordinary Suit, to Render Accounts
30. Hindu Religious and Charitable Endowts. Act, Not a Bar
31. Private Trust: Settlement of Scheme
32. Breach of Trust and Provisions of the Indian Trusts Act
33. Court Takes into Consideration Past History

Sec. 92 CPC reads:

• “Public charities:
• (1) 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 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 inquires;
  • (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
  • (f) authorising 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.
• (2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-Section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with provisions of that sub-Section.
• (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more the following circumstances, namely:-
  • (a) where the original purposes of the trust, in whole or in part, –
    • (i) have been, as far as may be, fulfilled: or
    • (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust: or
  • (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or
  • (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes: or
  • (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes: or
  • (e) where the original purposes, in whole or in part have, since they were laid down,
    • (i)   been adequately provided for by other means; or
    • (ii)  ceased, as being useless or harmful to the community, or
    • (iii) ceased to be, in law, charitable; or
    • (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.”

Introduction

The Indian Trusts Act, 1882 basically applies to private trusts. Sec. 92 of the CPC is meant for public trusts alone.  The general law of trusts and the universal rules of equity and good conscience upheld by the English judges, in the matters of public trusts, are accepted by the common law of India. Our courts unhesitatingly apply the principles of the English Law of Trusts which have been incorporated in the Indian Trusts Act to public trusts also.[1]

See Also Blog: What is Trust in Law?

Grant of Leave of the Court is a Pre-condition

Two or more persons “having obtained the leave of the Court” alone can institute a suit under Sec. 92 CPC. Therefore, grant of leave of Court is a pre-condition to maintain a suit with respect to the reliefs enumerated under this Section. That cannot be taken as mere formality.[2]It is meant for providing a safeguard against unscrupulous  elements  who may initiate  frivolous  litigation and deceitful actions against the administrators of the public trusts. At the same time, the Court has necessarily a duty to protect the interest of the public trusts and to save them from dishonest acts and actions of the corrupt trustees and administrators.  Courts are bound to zealously guard the interest of the public trust, since public interest is also involved.[3]

Court is the Ultimate Protector of all Charities.

As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[4] The public trusts are founded for the purpose of serving the human community in one kind or other. The Court has necessarily a duty to protect the interest of the Public Trusts. [5]  It should be administered in a transparent manner.[6]

What are Charities:

BK Mukherjee, J. On Hindu Law of Religious and Charitable Trust, it is stated as under:

• “2.5. Different classes of charity. Lord Macnaghten in his celebrated judgment in Commissioners of Income Tax v. Pemsel, laid down that the charitable purposes which come within the language or spirit of the Statute of Elizabeth could be grouped under four heads, to wit:-
  •  (1)relief of poverty,
  • (2) education,
  • (3) the advancement of religion,
  • (4) other purposes beneficial to the community not coming under any of the preceding heads.
• All purposes falling within these divisions are prima facie charitable, provided they are of a public nature, that is to say, when the object is to benefit the community or some part of it, and not merely particular private individuals or a fluctuating on this definition formulated by Lord Macnaghten, Russel, J., said in Re Hummeltenberg, “no matter under which the four classes of gift may prima facie fall, it is still in my opinion necessary (in order to establish that it is charitable in the legal sense) to show-(1) that the gift will or may be operative for the public benefit, and (2) that the trust is one, the administration of which the court itself could, if necessary, undertake and control.” (Quoted in Seth Soorajmull Jalan Trust Vs. Tolaram Jalan, 2015 AIR (CC) 3225, 2015-4 Cal LT  1)

Leave – Pragmatic Approach – Even allow amendment

It being the duty of the court to protect the charitable trusts, bona fide litigation with respect to a public trust should not be allowed to be marred by hyper technical  approach[7] while dealing with the application for granting leave under Section 92 of the CPC[8]  or while rejecting a legal action pointing out want of leave under Section 92.  A  clear and definite legal stance is yet to settle-down on this contentious matter. From the decisions that deal with Clause (h)[9] of Sec. 92(1), it can be realised that it is practically impossible to clearly define the cases which fall under Section 92  and which stand outside it. Same difficulty may arise to determine  whether an action is one for vindicating the private rights or  for asserting the rights of the public. Pragmatic ways and methods are to be evolved to weed out the mala fide litigation from the rest; and to transform a bona fide suit filed without the ‘leave petition’ under Section 92, to one with the required leave; and to convert a  bona fide suit filed seeking the leave, to a regular suit.  In Nadigar  Sangham Charitable Trust Vs. S. Murugan   Poochi   Murugan[10]  leave under Section 92(1) of CPC was granted after allowing an amendment application to add the required prayers enumerated in Section 92(1) of CPC.

Parens   Patriae   and   Section 92 CPC

It is trite law – in the matters as to custody of a minor, management of the properties of the minors etc., paramount importance or concern is the welfare of the minor. The same principle applies to the matters of public trusts also. The court is accepted as the guardian of the public charitable trusts and allied institutions.[11]

Because the affairs of trusts are essentially matters of public concern under English Law, the Crown, as parens-patriae, is the constitutional protector of all charitable trusts.[12] Sec. 92 CPC is enacted adopting the English principles.

Indian Law accepts Court as the guardian of the public charitable trust or institution.[13]In Raju Muttu Rama Linga Vs. Perianayagum (1874)[14] it was observed by Privy Council that there could be little doubt that the superintending authority, over temples and religious endowments, had been exercised by the rulers.[15]

Same principles as to Minors applied in Public Trusts

The deity occupies, in law, with respect to the administration of property, the position of an infant. Therefore the jurisdiction of courts with respect to the administration of the public trust property, especially that of religious trusts, is said to be analogous to the protection and administration of the property of an infant.[16]

It is trite law – in the matters as to custody of a minor, management of its affairs etc., paramount importance or concern is the welfare of the minor. The same principle is applied by our courts in the matters of public trusts also. The court is accepted as the guardian of the public charitable trusts or institutions.[17]

Courts have jurisdiction to enforce trusts.[18] As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[19] Sec. 92 CPC expressly authorises designated courts to give directions for administration of public trusts. It is also the duty of Courts to protect and safeguard the property of religious and charitable institutions from wrongful claims or misappropriation[20] and from diversion from the objects to which it was dedicated.[21]

The Supreme Court, in Chenchu Ram Reddy Vs. Government of AP,[22] observed that what is true of ‘public property’ is equally true of property belonging to religious or charitable institutions or endowments and that property of such institutions or endowments must be jealously protected by the courts.

In In-Re, Man Singh[23] it is pointed out by the Delhi High Court that in legal theory the Court is the guardian of charity, as it is of an infant. Sec. 92 CPC, which pertains to public trusts, is enacted adopting the English principles. The deity occupies, in law, with respect to the administration of property, the position of an infant.

See Also Blog: Is an Idol a Perpetual Minor?

Inherent Jurisdiction of Court in the Affairs of Public Trusts

Snell’s Principles of Equity[24] reads as under:

• “Apart from statute, the court has an inherent jurisdiction to remove a trustee and to appoint a new one in his place. As the interests of the trust are of paramount importance to the court, this jurisdiction will be exercised whenever the welfare of the beneficiaries requires it, even if the trustees have been guilty of no misconduct”.

Court is the guardian of the public charitable trusts

Apart from the jurisdiction of courts to administer and enforce public trusts,[25] and set right mismanagement, fraud or maladministration whenever the assistance of the Court is sought for,[26] the courts have the power of judicial review and even a duty[27] in the matters of public trusts. Court is the guardian of the public charitable trusts/institutions.[28] It is held by Privy Council in Ram Dularey Vs. Ram Lal[29] that ‘court has a duty, once it finds that it is a trust for public purposes, to consider what is best in the interest of the public’.[30]

Courts can invoke discretionary power

In CK Rajan Vs. State of Kerala[31] it is held by the Kerala High Court that apart from the right of suit under S. 92 of the Code of Civil Procedure, the courts have got ‘inherent jurisdiction’ to protect the interest of a religious or a charitable trust or deity. It was found to be a ‘reserve power’ with the courts.  The courts can invoke this discretionary power, when it is warranted, though not conferred by any statute, since this class of persons cannot, on their own, take proceedings to protect or safeguard their interests and set right the abuses or mismanagement or maladministration.

If the Wakf has been created substantially for a public purpose,it would fall within the purview of Section 92, CPC  the  Wakf.[32]

S. 92 Suit: Suit of Special Nature;  To Prevent Frivolous Suits

A suit under Section 92, Civil Procedure Code, is a suit of a special nature.[33]   While considering the scope of Section 92 (1), a Constitution Bench of the Supreme Court pointed out in Chairman Madappa  Vs. MN Mahanthadevaru[34]  that  the main purpose of Section 92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate General, or two or more persons having an interest in the trust with the consent in writing of the Advocate General. The object clearly is that before the Advocate General files a suit or gives his consent for filing a suit under Section 92, he would satisfy himself that there is a prima facie case either of the each of trust or of the necessity for obtaining directions of the court.

Public charitable trusts are generally intended to exist in perpetuity. By the relentless efforts of the administrators, whenever there are noticeable developments, it may  become  a matter of envy.  Their actions may  be brought in question by unscrupulous elements pretending to champion the cause of public good which could be a mere pretence to interfere with the management and for their personal gain. Therefore to provide a safeguard against such frivolous   litigation actions, the public trust is brought within the ambit of section 92 of CPC. Grant of leave by Court is a pre-condition to maintain the suit Section 92. That cannot be taken as mere formality.^[35]

S. 92 Suit: A Representative Action – Without Joining All Beneficiaries

The suit for under Section 92 of the CPC[36] is actually an enabling  representative action;[37] but, without joining all beneficiaries. Whether the petitioners have genuine, substantial and existing interest in the trust, is to be examined before they are permitted to institute the suit.[38]  The petitioners have to seek permission to sue to entitling them to protect the interest of the trust.

S. 92 Suit: Suit of Special Remedy;  General Remedy, Impliedly Barred

The suit under Section 92 being provide for a special remedy, it would follow that ‘the general remedy would be impliedly barred.’[39] (See notes in detail, below)

S. 92:  Pertains only to Public Matters; Not For Vindicating Private Rights

Section 92 CPC pertains only to public matters of a public trust. Sec. 92 suit presupposes the existence of a public trust of a religious or charitable character.[40]  In other words, it does not contemplate vindicating the private rights[41] of the plaintiff, or redressal of any specific illegal act of a trustee which is not connected with the core of the affairs of a trust.

Granting Leave After Allowing Amendment Application

In Nadigar  Sangham Chari. Trust Vs. S. Murugan   Poochi   Murugan[42] leave under Section 92(1) of CPC was granted after allowing an amendment application to add the relevant prayers enumerated in Section 92(1) of CPC.

No Specific Bar for Inclusion of Other Prayers

It is well settled law that a prayer enumerated under Section 92 of CPC can be dealt with only in a suit under Section 92 of CPC; however, there is no specific bar for inclusion of other prayers.[43]

Conditions^[44] to Attract Section 92 & Procedure

While considering the scope of Section 92(1) a Constitution Bench of the Supreme Court observed in Chairman Madappa Vs. MN Mahanthadevaru[45]  that Section 92(1) provides for two class of cases, namely, (i) where there is a breach of trust in a trust created for public purposes of a charitable or religious nature, and (ii) where the direction of the court is deemed necessary for the administration of any such trust.

In Bishwanath   Vs. Shri Thakur Radhaballabhji,[46]  Sugra   Bibi   Vs. Hazi   Kummu Mia,[47]  Ashok Kumar Gupta Vs. Sitalaxmi   Sahuwala Medical Trust[48]  etc. it is laid down that three conditions have to be satisfied[49] to invoke Section 92 of the Code of Civil Procedure, namely:

• (i)  The suit should relate to a trust, created for public purposes of a charitable or religious nature;
• (ii) It must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust;
• (iii) The reliefs claimed must be one or other of the reliefs specified in the Section.

Along with the above three conditions another one is also pointed out: The suit must be one brought in a representative capacity, in the interests of the public or of the trust, itself and not for vindicating the private rights of the plaintiff. That is, the suit must be fundamentally on behalf of the entire body of persons who are interested in the trust.[50]

Sec 92: Prima Facie Satisfaction as to the Locus Standi of Plaintiffs

Section 92 of the CPC provides that suits under that section can only be filed either by the Advocate General, or by two or more persons having an interest in the trust with the consent in writing of the Advocate General. (After 1976 Amendment of CPC it can be done by ‘the Advocate General, or two or more persons having an interest in the trust and having obtained the leave of the Court’.) The object clearly is that before the Advocate General files a suit or gives his consent for filing a suit under Section 92, he would satisfy himself that there is a prima facie case either of the breach of trust or of the necessity for obtaining directions of the court.[51]

Hospital run by a public trust – Beneficiaries prima facie have an interest

In Dashmesh Hospital Vs. Harpal Singh[52] Delhi High Court observed that the local residents being beneficiaries of a hospital run by a public trust offering free medical aid to the people at large they are persons prima facie having an interest in the trust and, therefore, competent to seek the leave under Section 92 of the CPC; and that they cannot be disbelieved without affording them an opportunity to prove their contentions as to the mismanagement of the funds of the trust.

S. 92: Plaint Allegations Alone Looked Into In the First Instance

Plaintiffs need not be Personally Interested or Personally Affected,

Our Apex Court laid down the basic ingredients to obtain relief under Section 92 CPC, in All India Women’s Conference Vs. Sarla Shah[53]  as under:

• (i)   the existence of a public trust;
• (ii)  allegations of breach of trust; and
• (iii) the necessity to issue directions for administration of the trust.[54]

Courts have a general parens-patriae jurisdiction

The courts have a general parens-patriae jurisdiction[55] over the trusts of charitable and religious nature and courts are bound to zealously guard the interest of the trusts, since it involves the question of public interest. Therefore, the courts proceed upon prima facie allegations[56] as to of breach of trust of the trustees, under Sec. 92; and a person who has ‘interest’ in the trust is expressly authorised to file a suit under Sec. 92. Such person need not be ‘personally interested or personally affected’.[57]

It is only the allegations in the plaint that will be looked into in the first instance to see whether the suit falls within the ambit of Section 92 and it does not fall for decision with reference to averments in the written statement.[58] In Nadigar Sangham Charitable Trust Vs. S. Murugan Poochi Murugan[59] it is held that while granting leave under Section 92 of CPC the Court has to consider the interest of the Trust and courts should not adopt hyper technical approach and that the grant of leave did not essentially involve an adjudicatory process. The Court should look into the averments and allegations in the plaint to arrive at a prima facie satisfaction that the suit would fall within the ambit of Section 92 of CPC. While granting leave, the Court is only considering certain fundamentals, which are required to be satisfied to a Suit under Section 92 CPC. In this decision the court pointed out that the courts have a duty to protect the interest of the Public Trust and also that in case the allegations in the Plaint are baseless and calculated to defame the trustees and there are no materials at all to form a prima facie view of the matter, the Court would be justified in refusing to grant leave.

S. 92 Envisages ‘Trust’ in a General, and Not in a Restrictive Sense

Section 92 Civil Procedure Code envisages ‘trust’ in a general, and not in a restrictive, sense as it refers to ‘express or constructive trust created for public purposes of a charitable or religious nature’.[60]

Constructive Trust:  Envisages ‘Trust’ Made Out By Circumstances

A constructive trust is ‘a trust to be made out by circumstances’. It is ‘more than a concept’ and applied in ‘remedial processes’.[61] Constructive trust arises in a variety of situations. There may be no intention of the parties to create a trust relation. Therefore it is said: ‘A constructive trustee may not know that he is a trustee.’[62]

After Evidence, Suit Will Be Dismissed If Not Maintainable u/s 92

Though only the allegations in the plaint are looked into in the first instance to see whether the suit falls within the ambit of Section 92, if on filing an application for revocation or in the course of suit[63] or after evidence is taken,[64] 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 sold foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit purporting to be brought under Section 92 must be dismissed.[65]

Removal of Trustees

See Chapter: Breach of Trust and Removal of Trustees

Suit for Vindication of Public Rights alone fall under Sec. 92

If it is clear that the plaintiffs are not suing to assert or vindicate[66] public right but are seeking a declaration of their individual or personal rights, or the individual or personal rights of any other person in whom they interested, then such a suit will be outside the scope of Section 92.[67]

Our Apex Court pointed out in Sugra Bibi Vs. Hazi Kummumia (1968)[68]that every suit claiming reliefs specified in Section 92 cannot be brought under Section 92; but only the suits (besides claiming any of the reliefs specified in Section 92) which were brought by individuals as representatives of the public for vindication of public rights alone fell under Sec. 92. The reliefs prayed for in this case were: (1) removal of the respondent from the office of Mutwalli and appointment of Soleman, appellant’s son, as Mutwalli in his place, and (2) till the said Soleman attains majority appointment of a Receiver for the  management of the Wakf estate. The Supreme Court found that the reliefs claimed were not reliefs for enforcing any private rights but reliefs for the removal of the defendant as trustee and for appointment of a new trustee in his place; and that the reliefs asked for by the appellant fell within clauses (a) and (b) of Section 92(1) of the Civil Procedure Code and these reliefs indicated that the suit was brought by the appellant not in an individual capacity but as representing all the beneficiaries of the Wakf estate. 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.

Before our Apex Court, in Ashok Kumar Gupta Vs. Sitalaxmi Sahuwala Medical Trust,[69] a question arose whether the relief along with other averments in the plaint would take the matter out of the scope of the Section 92 of the Code. Our Apex Court found that one of the reliefs prayed for was that the first plaintiff was also to be included as one of the trustees along with other trustees from medical profession and from public. What was being complained was that the plaintiffs had been removed from the board of trustees and none of the present trustees were from medical profession. The principal relief was for framing of a proper scheme of administration and for appointing trustees from medical profession and from the public for proper and effective administration of the Trust. The expression “including the first plaintiff” has to be understood in the context that the first plaintiff, as a qualified medical professional, was associated with the Trust right since the inception but now stands removed. It was held, following  Sugra  Bibi   Vs. Hazi  Kummumia,[70] that the relief prayed for cannot be said to be in the nature of vindicating   personal rights of the first plaintiff.

Courts Go Beyond Reliefs to Decide Whether Suit Falls U/S. 92

Object and Purpose, and Not the Relief, which is Material

In Shanmukham Chetti Vs. Govinda Chetti (1938)[71] Varadachariar, J. held that 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[72] for which the suit is brought.This decision was followed in Tirumalai Tirupati Devasthanams Committee Vs. Udiavar Krishnayya Shanbhaga (1943).[73] This principle was reiterated by our Apex Court in Sugra BibiVs. Hazi Kummumia(1968).[74] Referring all these decisions it is observed by our Apex Court in Swami Pramatmanand Saraswati Vs. Ramji Tripathi (1974)[75]as under:

• “A suit under Section 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 or 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 under Section 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, (See Shanmukham v. Govinda, AIR 1938 Mad 92; Tirumalai Devesthanams v Krishnayya, AIR 1943 Mad 466 (FB); Sugra Bibi v. Hazi Kummu Mia, (1969) 3 SCR 83 &Mulla; Civil Procedure Code, (13th ed.) Vol. I, p. 400). 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.”

Doctrine of Dominant Purpose

It is held by the Madras High Court in C. Padmavathi Vs. KTAnbalagan[76]as under:

• “Where two or more persons interested in a trust bring a suit purporting to be under 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.”

Sec. 92 CPC is Not Attracted to Matters of a Society

Because, no ‘dedication’ of “property belonging to a society”

A suit with respect to the administrative matters of a society (both registered and unregistered), or property ‘belongs to a society’, is not controlled by Section 92. Section 92 pertains to public trusts. 

Dedication of specified property by a competent person is essential for a valid endowment.  It is relinquishment of entire rights of the donor or founder in the property dedicated.[77]  For a valid dedication, there should be proof of renunciation by the owner or divestment of his title to the property dedicated.[78]

Sec. 92 CPC envisages ‘express or constructive trust created for public purposes of a charitable or religious nature’. This requirement is brought home only when there is dedication of property. That is, unless there is an ‘express or constructive’ public trust founded by explicit ‘express or constructive’ dedication of the property divesting the rights of former owner over the same, ‘for public purposes of a charitable or religious nature’, Sec. 92 CPC is not attracted. 

The characteristic distinguishing factor between a ‘Private Trust’ and ‘Public Trust’ is that in the former, beneficiaries are defined and ascertained individuals; and, in the latter, the beneficial interest will be vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it, answering particular description.

Normally, there will be no ‘express or constructive’ dedication of the ‘property belonging to a society’, divesting the rights of the society, ‘for public purposes of a charitable or religious nature’ (even if the objects of the society are charitable and religious purposes); and therefore, Sec. 92 CPC will not be attracted to the ‘property belonging’ to the societies. A society usually uses its property for its own purposes[79] and it will be the property of the Society alone;[80] and it will not be a property in respect of which it is possible to predicate a public trust[81] as envisaged in Sec. 92 CPC. The same will be the position of Non-Trading-Companies also.[82]

In ‘Abhaya’ a Society Vs. Raheem,[83] while dealing whether Sec. 92 CPC is attracted to the affairs of a registered society, it is pointed out by the Kerala High Court that to constitute a trust there must be author, trustees, beneficiary, trust property and beneficial interest.

It is also clear from the wordings of Sec. 92 CPC that express or constructive trust in its ‘strict sense’ is envisaged in Sec. 92; and not trust in its ‘wider or general sense’ so as to include all ‘fiduciary relationships’.[84] Section 92 CPC is held out on the principles of ‘parens patriae’, once a trust always a trust,[85]  and the court is the protector of all charities.[86]

In Pragdasji Vs. Ishwarlalbhai[87] our Apex Court pointed out that a suit under Sec. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character and that it must pray for one or other of the reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled; a suit could be brought under Sec. 92.

Section 92 CPC does not specifically make any provision to remove the persons in management of the society and to appoint new managing body. 

See Also Blog: Incidents of Trust in Clubs and Societies

A Society May Be Subjected  to the Jurisdiction of S. 92 CPC

Section 92 Civil Procedure Code envisages ‘trust’ in a general, and not in a restrictive, sense as it refers to ‘express or constructive trust created for public purposes of a charitable or religious nature’.[88]

Instances of Trust that will be subject the jurisdiction under Sec. 92 CPC:

1. If it is manifested from the basic documents and circumstances or from the very nature of an association (society or a Non-Trading-Company) that a property held by such an institution is meant for the benefit of the third parties or public, ie. other than the members of the association, no doubt, such property cannot be treated as the property ‘belonging to’ the association.[89] (The property of a society is described in the So. Regn. Act as the property ‘belonging to the society’.)
2. If a society is formed with the object of dedicating property for a public charitable or religious purpose and if the property is so dedicated, a trust will be predicated.
3. Likewise, a trust will arise if the property acquired by the society is validly dedicated for such purpose,[90]
4. Same will be the position if the society accepts gift of a property with the obligation to manage the same for the benefit of the beneficiaries intended by donee.The
   • Delhi High  Court  has  held in Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India[95] that a public trust can be validly created by gifting property to a society on condition that the same should be used for a specific public purpose and by appointing the society as its trustee.

The Supreme Court, in Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan,[91] considered whether a trust would arise when the donor waqfed (gifted) property to a society, registered under the Indian Societies Registration Act, 1960, for the development and publicity of the Hindi Language. The property was gifted on condition that the society would not have a right to mortgage or right of sale. The society had not been taking any interest in achieving the purpose. Therefore, petition was filed under Section 92 of CPC. The district judge allowed the petition observing that prima facie it appeared that a constructive trust was created. The district judge relied on the Kerala High Court decision in Sukumaran Vs. Akamala Sree Dharma Sastha.[92] The High Court, in Revision, reversed the order of the district judge.  The matter was finally considered by the Apex Court, by ‘special leave’.  The Apex Court upheld the view of the District Judge observing as under:

• “We have noticed that the trust deed was executed in favour of the respondents. But it appears in view of the facts and circumstances of this case and the submissions made on behalf of the respondents, that it was waqfed/gifted for a lawful purpose i.e. a “trust” (which) is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another owner, (Act II of 1882 Trusts, Section 3]. Accordingly, in our opinion, the application filed by the appellants was falling within the required ambit of Section 92 of CPC and the learned district judge had rightly permitted the appellants to institute a suit.”

In Sukumaran Vs. Akamala Sree Dharma Sastha[93], the Kerala High Court relied on the following passage from Keshava Panicker Vs. Damodara Panicker[94]:

• “The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated……. if there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character”.

The Delhi High Court, in Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India,[96] considered whether the term “express or constructive trust” in Section 92 CPC was attracted when a society (National Council YMCAs of India) held ‘in trust’ property belonging to different organisations, and observed as under:

• “In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”

The Delhi High Court found that the National Council YMCAs was in both ‘express’ and ‘constructive’ trust of the properties belonging to its member YMCAs. The mere fact that the defendant is a registered society did not take away its true character. The defendant is an organisation which worked for a public purpose and is subject to the jurisdiction of Section 92 of the CPC. The defendant (National Council YMCAs of India) contended that it was not a trust but a society registered under the Societies Registration Act. There was a clear distinction between the nature of a trust and a society. If only it could be proved that the society could in fact be termed as a trust created for public purposes of a charitable or a religious character, leave under Section 92 of the CPC could be granted. The settled position on this issue was that if a society that was functioning in a fully democratic fashion, and there was no settler who had vested property in the society, leave could not be granted under Sec. 92. The court considered the following judgments:

• Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan:  AIR 2017 SC 1221.
• Kesava Panicker Vs. Damodara Panicker, AIR 1976 Ker 86
• S. Guhans Vs. Rukmani Devi Arundale: 1987-100 LW 182
• Advocate General Vs. Bhartiya AdamJati Sewak Sangh: 2001-3 ShimLC 319
• Abhaya A Society Registered under the TC Literary Vs. J.A. Raheem: AIR 2005 Ker 233
• K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution: AIR 2007 Mad 25

The Delhi High Court (in Young Mens Christian Association of Ernakulam) heavily relied on the Supreme Court decision, Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan,[97]  which held that a trust would arise when the donor waqfed (gifted) property to a society, registered under the Indian Societies Registration Act, 1960, for the development and publicity of the Hindi Language.

The Delhi High Court also relied on Kesava Panicker Vs. Damodara Panicker,[98] where it was held that if a trust was created for a public or charitable purpose, the fact that it was registered as a society would not change the character of the properties.

The Delhi High Court distinguished Abhaya A Society Vs. JA Raheem,[99] S. Guhans Vs. Rukmini Devi Arundale,[100] K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution,[101] and Advocate General Vs. Bhartiya Adam Jati Sewak Sangh[102] pointing out that these cases did not show that they held ‘in trust’ any property belonging to a different organisation. In these cases the property was owned by the Society concerned and it belonged to it. But, National Council YMCAs of India, the defendant, was formed to promote the work of the YMCA Movement in India and to resuscitate the existing languishing YMCAs and aid in formation of new YMCAs. It started administering and looking after the existing YMCAs which were formed even before it came into existence as a Society. The defendant “holds in trust, properties on behalf of the member YMCAs”. Thus, the defendant was in both ‘express’ and ‘constructive’ trust of the properties belonging to its members. The agreements in respect of immovable properties were actually signed for and on behalf of the members by the defendant. The defendant was thus playing the role of not merely an association holding something in trust but also has the power to enter into a transaction in respect of such properties.

A Corporation Can Be a Trustee.

Earlier conception was that a corporation could not stand as a trustee for the benefit of the beneficiaries, projecting the reason that a Company or a Corporation itself should always be the ‘beneficial owner’ of its property; and that it could not be subjected to a trust for the benefit of third parties. It was also pointed out that a Corporation or Company cannot accept the confidence reposed by the author in a trust.   N. SuryanarayanaIyer, in his commentary ‘The Indian Trusts Act’, deliberated these matters and observed as under: 

• ‘Formerly the notion was that the relationship of a trustee being one of confidence involving a personal element, a corporation could not be a trustee as there could not be a question of confidence being reposed in a corporation and therefore that it could not be a trustee. This notion, however, has long ago been given up. Corporate bodies have been held to be amenable to the jurisdiction in Chancery and compellable to carry out the intentions of the settlor of property which has been vested in them…. Under the Indian law also a corporation, whether aggregate or sole, can be a trustee and there is ample jurisdiction in the court to enforce the performance of its duty by such trustee.’[103]

If Valid Dedication, No Change of Character, On Regn.  as  Socieety

As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC.[104] But, if a charitable or religious institution of a public nature[105] is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.

Society /Company formed for Executing the Trust Does Not Change Character of Trust

Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated.  Kesava Panicker Vs. Damodara Panicker[106] was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:

• “If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character. So the High School buildings, the land, all appurtenances, furniture, equipment and all other properties are trust properties”.[107]

Is SNDP Yogam : Main object is to conduct poojas, festivals etc, in Temples

S. 92 CPC Direction for settling Scheme for Yogam issued.

In S.N.D.P. Yogam v. G. Krishnamoorthy, 2022-4 Ker HC 168, the first and foremost question arose for consideration was whether the Yogam is a trust created for public purposes of a charitable or religious nature. The argument of the plaintiff was that it was trite that if there was a trust created for public purposes of a charitable or religious nature, the fact that a company or other body was formed subsequently for executing the trust did not change the character of the trust or the subject matter of the trust namely, the property which has been constituted as a trust (Kesava Panicker v. Damodara Panicker, 1975 KLT 797, FB) and that, for the application of Section 92 of the Code, it made no difference whether the trustee was an individual or a company ( M.Gomathinarayagam Pillai and others v. Sri.Manthramurthi High School Committee, Tirunelveli, AIR 1963 Mad 387).  Accepting the argument it is pointed out as under:

• “The recitals aforesaid in Ext.A37 would establish beyond doubt that Yogam is the reconstituted body of “Aruvipuram Kshetra Yogam” which was subsequently registered as a company with a view to expand the same as a mass organisation of those belonging to Ezhava community. As noted, the main object of the Yogam as disclosed in its Memorandum of Association is to conduct the daily poojas, annual festivals as also other  requirements in relation to Aruvipuram Siva Temple and other temples brought under it.”

Finally, the High Court held as under:

• “In the light of the foregoing discussion, we are of the view that there is no infirmity in the decision of the court below that the plaintiffs have made out a case for a direction under Section 92 of the Code for the administration of the Yogam. It is all the more so since in terms of impugned judgment, the direction issued by the court is only for framing of a scheme for the administration of the Yogam in accordance with the requirements of the relevant statute governing companies.”

From the decretal portion it is clear that “it is all the more” a direction ‘for framing of a scheme for the administration of the Yogam’.

Effect of Registration of a Trust as Society

If a trust is already established, its ‘trust-identity’ will not be lost by the formation of a society by the persons in management; and, the same will be the position even if the beneficiaries formed a society for the proper administration of the trust. If there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a Society, could not change the trust-character of its property; and in such a case, suit can be filed under Sec. 92 of the CPC.[109]The registration of a trust under the Societies Act will not alter the nature and character of the property, also.[110] A society can also be formed simultaneously with creation of a trust over the property dedicated to, or set apart for the benefit of, the members of the society; or for the benefit of the members and outsiders. The society and (public) trust can be ‘one entity’.[111]

A society can be a ‘public religious trust’ (that is, the beneficiaries may be unascertainable) like a church that came for consideration of our Apex Court in Church of North India Vs. Lavajibhai Ratanjibhai[112] and Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti[113]. In public trust, the beneficiaries will be the general public or a class thereof.[114]

In Kishorelal Asera Vs. Haji Essa Abba Sait Endowments,[115]which dealt with a Trust which was also a Society registered under the Societies Registration Act,it is observed by Madras High Court as under:

• “The Trustees have also registered themselves as a Society and the management of the affairs of the Society is entrusted to the Governing Body. According to the appellants/defendants, the suit should have been filed by competent persons under the Societies Registration Act. We do not find any merit in the submission. …. In Rajan Devasahayam Vs. Hindustan Bible Institute of India [1996 (1) LW 533], the plea that the plaintiff in that case is not a Trust, but only a Society; and therefore, cannot claim exemption under G.O. MS. No. 2000 dated 16.8.1986 was negatived. The learned Judge has, rightly in our view, held that the plaintiff is a Trust though it is also a Society registered under the Societies Registration Act.”

Right of Beneficiaries of a Trust Registered as a Society or a Company

The beneficiaries of a trust owned or administered by a Registered Society or a Company have the right to file suit under Sec. 92.  The Madras High Court held in M. Gomathinayagam Pillai Vs. Sri Manthramurthi High School Committee, Tirunelveli[116] as under:

•  ”If an association is registered under Section 25 of the Indian Companies Act, the members of it and they alone will have powers to apply to the Company Court for relief in case there is mismanagement. But, in a case where the beneficiaries of a trust want to complain that there has been a breach of the trust or that a direction of the Court is necessary, they can file a suit under Section 92 of the Civil Procedure Code. ”[117]

Is Catholic Parish Church not a Public Trust

Though a public trust functions under its bylaws, a suit filed seeking direction of the Court for proper management of its properties will fall under Section 92; for, a suit under Section 92 can proceed in the situation where ‘direction of the Court is deemed necessary for the administration’ of a trust.

If there is an ‘express or constructive trust created for public purposes of a charitable or religious nature’, provisions of Sec. 92 CPC will definitely be attracted, even if the affairs of a public trust is governed under the bylaws of an association, or the property thereof vests with the administrators elected by an association (Eg. a church). But, pointing out that the Catholic Church is a voluntary association governed under Canon Law and the properties of a parish church are vested with ecclesiastical authorities and that the parish church is a legal person, in Major Arch Bishop Vs. Lalan Tharakan[108] the Kerala High Court has held that a Catholic parish church is not a public trust to attract Sec. 92 CPC.

Suit for Proper Administration of Trust

In Aurobindo Ashram Trust Vs. S Ramanathan[118] it is held by the Madras High Court that there is no breach of trust on the part of trustees of Sri Aurobindo Ashram when one of the inmates published a book containing derogatory remarks about Sri Aurobindo since the Ashram has nothing to do with it. But, it has been proceeded as under:

• “Nevertheless, having regard to the prayer in the suit viz., steps to be taken to ensure withdrawal of the book, the plaintiffs seek a direction of the court for the administration of the trust. Therefore, having regard to the intention of the plaintiffs in directing a ban on the book which contained derogatory remarks against Sri Aurobindo and having regard to the fact that no action has been taken by the trustees to secure the ban or take any action against the author of the book, in my opinion, the plaintiffs have made out a case to bring the suit within the ambit of Section 92 of the Code of Civil Procedure and therefore, the court below has rightly rejected the application to revoke the leave.”

“Where Direction of the Court is Deemed Necessary for the Administration”

Section 92 expressly provides for granting ‘direction of the Court’ when it is ‘deemed necessary for the administration’ the trust. Even if the trust deed does not provide for sale of trust property, the court can grant permission if the court is satisfied that the sale is for the benefit of the trust.[119] Section 34 of the Indian Trusts Act also provides for seeking permission of the principal civil court of original jurisdiction with respect to management of trust property.

In S.N.D.P. Yogam v. G. Krishnamoorthy, 2022-4 Ker HC 168, referring Imayam Trust v. Balakumar, CTC 2015-3 654: 2015-2 MadLW 235: 2015 SCC OnLine Mad 2685 it is observed that the courts have parens patriae jurisdiction over public trusts for safeguarding the same. It is pointed out further in S.N.D.P. Yogam v. G. Krishnamoorthy, 2022-4 Ker HC 168, as under:

• “Although the object of Section 92 of the Code is to protect the interests of the public who are beneficiaries of trusts created for public purposes of a charitable or religious nature, having regard to the scheme of the said provision that administration of public trusts shall not be put to halt on account of frivolous and vexatious litigations, according to us, the expression “where the direction of the court is deemed necessary for the administration of any such trust”, would take within its fold only cases where in the absence of a direction of the court, the objects of the trust would be defeated. In other words, the provision aforesaid is intended to cover only cases where, in the absence of a direction by the Court, there would be breach of trust in a wider sense that the trust may not achieve its object for want of proper administration.”

S. 34 of the Indian Trusts Act reads:

• “Right to apply to Court for opinion in management of trust property.—Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal. A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit. The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application. The costs of every application under this section shall be in the discretion of the Court to which it is made.”

Provisions for getting direction of the Court, for the administration of the public trust, are contained in various (State) Public Trust Acts, too.[120]

In Young Mens Christian Association of ErnakulamVs. National Council YMCAs of India[121] the Delhi High Court found that commercialisation of the property, movable and immovable, belonging to the members which, by itself, at this stage, is sufficient for this Court to grant leave under Section 92 of the CPC

Suits Outside the Scope of Section 92

While considering the scope of Section 92(1) a Constitution Bench of the Supreme Court observed in Chairman Madappa Vs. MN Mahanthadevaru[122]  that Section 92(1) provides for two class of cases, namely,

• (i) where there is a breach of trust in a trust created for public purposes of a charitable or religious nature, and
• (ii) where the direction of the court is deemed necessary for the administration of any such trust.

In Pragdasji Vs. Ishwarlalbhai[123] it was pointed out by our Apex Court that a suit under Sec. 92 was a suit of a special nature[124]  which presupposed the existence of a public trust of a religious or charitable character and that such a suit could proceed only on the allegation that there was a breach of such trust or that directions from the court were necessary for the administration thereof, and it must pray for one or other of the reliefs that were specifically mentioned in the Section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Sec. 92, CPC.[125] There must be an element of dishonest intention and lack of probity on the part of trustees to invoke Sec. 92.[126] It does not contemplate vindicating the private rights of the plaintiff, or redressal of any specific illegal act of a trustee which is not connected with the core of the affairs of a trust. In other words, Section 92 CPC pertains only to public matters of public trust.

Such a suit must be one brought in a representative capacity, in the interests of the public, and not for vindicating the private rights of the plaintiff. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust.[127] It must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. The reliefs claimed must be one or other of the reliefs specified in the Section.[128]

Following Suits are held to be outside the scope of Section 92, CPC:

• (i)   A suit for declaration that a property belongs to the trust,[129] and other connected reliefs.[130]
• (ii)    A suit for declaration of personal rights[131] or as to right to the office of a trustee and relief asked for on that basis.[132]
• (iii)   A suit for declaration of title to property and for possession thereof from the alienee.[133]
• (iv)   Suit against transferees of trust property, for declaration and recovery.[134]
• (v)    The suit raises purely private and personal dispute by a person whose activities were not for protection of the interest of the public.
• (vi)   A suit for declaration that the purpose of the trust had been fulfilled.[135]
• (vii)  A suit by an idol as a juristic person, for enforcement of its private right, against persons who interfered unlawfully with the property of the idol.[136]
• (viii) The suit by the deity for declaration and possession challenging the alienation.[137]
• (ix)   A suit on behalf of the villagers that the suit property belongs to the temple and certain alienations by the poojaries are void is maintainable apart from Sec. 92.[138]
• (x)    A declaratory relief on behalf of a public trust of a religious and charitable character regarding title does not fall under Sec.92.[139]
• (xi)   The suit in effect to safeguard the interest of the trust by challenging unauthorised actions of a former trustee and recover properties from strangers.[140]
• (xii)Suit claiming right as the Sarvarakar of the deity on the basis of being a member of the founder’s family and directed against an individual alleged to be an imposter intending to trespass over part of the trust property.[141]
• (xiii) The suit between persons who individually, claim a right to succeed to the office of trustee, the right set up being a personal right to act in a particular office.[142]
• (xiv) A private dispute between one of the beneficiaries and the trust through its mutwalli.[143]
• (xv)   Suit for injunction to restrain the defendants on the basis of settled and binding constitution of the Church.[144]
• (xvi) Application for modification of Scheme.[145]
• (xvii)Where the right as a trustee is asserted and is denied by the other.[146]
• (xviii)When alienation has been effected by the shebait acting adversely to the interests of the idol.[147]
• (xix) Defendants are acting adverse to the interest of the trust.[148]
• (xx) Where declaration of the rights of parishioners sought for and  also mandatory injunction, with respect to plaint  schedule property   over    which constitution of a trust is imputed.[149]
• (xxi) Declaration that the defendants are not properly appointed trustees of the temple in question, and for an injunction restraining them from interfering with the plaintiffs in the management of the .affairs of the temple.[150]
• (xxii) The suit filed by a religious institution for a declaration of its title to the property and for possession of the same from the defendants who are in possession thereof under a void lease deeds.[151]
• (xxiii) A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation.[152]
• (xxiv) That a suit for declaration that a property belongs to a trust.[153]
• (xxv) A suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee.[154]
• (xxvi) A suit by an idol as, a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right.[155]
• (xxvii) Suit by a trust itself against a Sevadar.[156]
• (xxviii) Seeking direction of District Court for implementation of a scheme already framed by the Court under Sec. 92,[157] or bye laws.

Suit for Asserting Office

When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside S. 92.[158]

In Shanmuga Dayanandam Trustee Vs. Vallal Charitable Trust[159] the Madras High Court held that a suit filed by a trustee challenging his removal, as illegal and ultra vires for it was opposed to the principles of natural justice,  was espousing his personal cause and the same did not fall within the scope of Section 92 of the CPC. It was also pointed out that there was no question of doctrine of indoor management applying to the activities of Public Charitable Trust. The defendant Trust being bound by the provisions of Section 92, in the absence of any procedure for removal of trustees, the first defendant Trust was bound to follow the procedure prescribed under Section 92, and at the least, it was bound to issue notice to the plaintiff seeking his response on the proposal to remove.

Alienation of Debutter Property: Declaration Falls OutsideS.92 

It is held in Bhagauti Prasad Khetan Vs. Laxminathji Maharaj,[160] relying on Bishwanath Vs. Sri Thakur Radha Ballabhji,[161] that a regular suit for declaration in respect of unauthorised alienation of debutter property is one for enforcement of a private right of property of the deity; and it being not for any one of the reliefs found in S. 92 CPC, the suit falls outside its purview and is not barred.

Clause (h): “Such Other Relief as the Nature of the Case May Require”

Relief Akin to, or of Same Nature of Cl. (a) to (g): Suit Must Be Under Sec. 92

The Supreme Court pointed out in Charan Singh Vs. Darshan Singh,[162] following the Privy Council decision, Abdul Rahim Vs. Mohamed Barkat Ali,[163] that a suit claiming relief akin to, or of the same nature, as any one or more of the reliefs mentioned in clauses (a) to (g) of Sec. 92, falls under Sec.92; and that if the suit was not filed in conformity with the requirement of the said provision it was not maintainable. The plaintiffs mainly alleged breach of duty on the part of the trustee and the plaintiffs sought the Court’s aid against the trustee for forcing him to discharge his obligations by due performance of his duties.The Supreme Court observed as under:

• “The relief sought for in the present case does not strictly or squarely fall within clause (e) or (g) but is very much akin to either and hence is covered by the residuary clause (h). …  The words ‘further or other relief’ in clause (h) must on general principles of construction be taken to mean relief of the same nature as clauses (a) to (g).”[164]

In NP  Thangaraj Vs. Church of South India[165] The Madras High Court observed that the suit filed mainly for removal of the a defendant from the post of Chairman of the public religions charitable trust on the specific allegation of maladministration and  misappropriation fell within the ambit of Section 92 of CPC. The High Court relied on the finding in Charan Singh Vs. Darshan Singh,[166] that the relief sought for may not strictly or squarely fall within clause (e) or (g) to attract Sec. 92; and that it would have been sufficient if it was ‘very much akin to either’, and in such a case, it would have been covered by the residuary clause (h).

To attract Section 92, among other things, the reliefs claimed must be one or other of the reliefs specified in clauses (a) to (h). The scope of Section 92 is enlarged by Clause (h) by the words, ‘such further or other relief as the nature of the case may require’; that is, suits under Sec. 92 is not limited to consequential reliefs to clauses (a) to (g). 

In Abdul Rahim Vs. Mohamed Barkat Ali,[167] the Privy Council, rejecting the argument of the plaintiff that ‘such further or other reliefs as the nature of the case may require’ must be taken ‘not in connection with the previous clauses (a) to (g)’,but it was held that it must be taken to mean ‘relief of the same nature’ as clauses (a) to (g). It was observed as under:

• “The reliefs specified in sub-section (1)(a) to (h) do not cover any of the reliefs claimed in this suit unless the words “further or other relief” in clause (h) can be held to cover them. It is argued that the words “such further or other relief as the nature of the case “may require” must be taken, not in connection with the previous clauses (a) to (g), but in connection with the nature of the suit, viz., any relief other than (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Their Lordships are unable to accept this argument. First, because the words “further or other relief” must on general principles of construction be taken to mean relief of the same nature as clauses (a) to (g)… Secondly, because such construction would cut down substantive rights which existed prior to the enactment of the Code of 1908 and it is unlikely that in a Code regulating procedure the Legislature intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time. .. The conclusion is that, inasmuch as the suit out of which this appeal arises did not claim any such relief as is specified in sub-section (1) of section 92.”[168]

Clause (h) – Not in Consonance With “In the Case of Any Alleged Breach”

Section 92 CPC applies if only three conditions enumerated in Section (2) co-exist. They are: (1) there must be an express or constructive trust for public purposes of a charitable or religious nature; (2) there must be an allegation of breach of trust or the direction of the Court should be deemed necessary for the administration of such trust and (3) the suit should have a prayer for anyone of the reliefs mentioned in sub Cl. (a) to (h) in clause 1 of Sec. 92.  Pointing out these propositions, the Kerala High Court in G. Koshy Vs. Chacko Thomas[169] explained that the relief mentioned in clause (h) of Section 92(1) has to be construed in consonance with the specified heads mentioned in (a) to (h) and not in consonance with the words “in the case of any alleged breach” etc.

Sec. 92 CPC reads as under:

• “(1) In the case of any alleged breach of any express or constructive trust … may institute a suit … to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; …. ….  (h) granting such further or other relief as the nature of the case may require.”

Suit Under S. 92, Special Remedy; General Remedy , Impliedly Barred

A suit under Section 92 of the code is a suit of a special nature for the protection of public rights in the public trusts and charities.[170] It is a suit of a special character which presupposes the existence of a public trust of a religious or charitable character.[171] Referring to these principles, the High Court of Punjab and Haryana in Jathedar Sadhu Singh Vs. Charan Singh[172] held that ‘as observed by the Hon’ble judges of the Supreme Court in Mahant Pragdasji Gum Bhagwandasji Vs. Patel Iswarlalbhai,[173] the suit under Section 92 is a special remedy. It would follow that where resort could be had to the special remedy, the general remedy would be impliedly barred.’ Relying on the Punjab & Haryana Decision, it is held by the Karnataka High Court in R Krishnuppa Setty Vs. L Ramakrishnappa[174]  that the suit filed only for permanent injunction without invoking the provisions of Section 92, CPC is not maintainable.

Wrongful Appointment of a Trustee

Suit for the declaratory relief with regard to the validity of the appointed trustee, and for appointment of a fit and charitable minded trustee in his place and for rendition of true and correct accounts clearly falls within the ambit of Section 92 Civil Procedure Code. So leave of the Court is necessary.[175]

It is held in Shishir Bajaj Vs. India Youth Centre[176] as under: 

• “The appointment or wrongful appointment of a trustee, to such an institution cannot, (even though the plaintiffs have averred so) be a matter of personal lis involving existing trustees, and new trustees, or the Trust. The Court’s obligation to scrutinise these precise issues is a matter of statute, mandated by Section 92(1) (a) and (b), CPC. Furthermore, if there is wrongful assumption of the office of a trustee, that falls squarely within the domain of this Court’s jurisdiction, as it is not the personal right of a few, but the right of the general public, who are deemed beneficiaries (of the trust) which is affected, or adversely impacted. In these circumstances, it is held that the purpose of the suit is to vindicate public rights, and having regard to the fact that all the three plaintiffs are trustees, it is further held that they have locus standi to maintain the present suit. Leave to do so is hereby granted.”

Injunction Suit to enforce Rights under Constitution of a Church

In AA Kora Vs. St.  Mary’s,[177]the Kerala High Court, relying G. Koshy Vs. Chacko Thomas,[178]found that a suit for injunction to restrain the defendants from interfering with the right of the plaintiffs to discharge their duties and to restrain the defendants from trespassing into the church, on the basis of settled and binding constitution of the Church did not fall within the ambit of Section 92 CPC. The court rejected the argument that the relief was couched in the form of a simple injunction, for, the real object of the suit was to ensure the vesting of the property on the trustee, and that the prayer thereby fell within the scope of clause (c) of Section 92 of the CPC. The court observed that, in the plaint there was no allegation of mismanagement. There was no allegation that there was breach of trust, either express or constructive, also.

Earlier, the Kerala High Court had held in Fr.  John Jacob Vs. Fr.  NI  Paulose[179]that the declaration sought for on the allegation that the constitution applicable to the Church empowered the mright of administration, postulated that the suit was one squarely fell within the scope of Sec.92 of the CPC. Plaintiffs sought intervention of the court for its control and administration. Relief so claimed was not one covered as(a)to(h) of Sec. 92 of the Code.But, that by itself could not have taken the suit out of that section. It was observed in Jose Vs. St. Marys Orthodox Syrian Church[180] that the allegations that the defendants were not permitting the administration of the church in accordance with the constitution amounted to an allegation of breach of trust; and that the relief of declaration sought for in the suit to the effect that the first defendant church was to be administered as per the constitution of the Church was in effect a prayer for settling a scheme. Likewise, the relief of injunctionwas in effect a prayer for vesting the trust properties with its lawful trustees. In Varkey Ittan Vs. Kuruvila Mathai Kathanar[181] it was observed that the prayer for a declaration that the plaint schedule church had to be administered in accordance with the constitution wasakin to the reliefs mentioned in clauses (a) to (g) of Section 92(1) of the Code. In Varghese   Vs. Pathrose[182]it was held that the decree of injunction sought against the defendants who are in administration of the trust was virtually for removing the defendants from the administration of the trust and that the said reliefs would come under clause (a) of Section 92(1) of the CPC.

Modification of a Scheme: Suit under S. 92 not Essential

It is held by our Apex Court in Raje Anandrao Vs. Shamrao as under:[183]

• “This sub-section [S. 92(2)] therefore does not bar an application for modification of a scheme in accordance with the provisions thereof, provided such a provision can be made in the scheme itself. Under sub-s. (1) the Court has the power to settle a scheme. That power to our mind appears to be comprehensive enough to permit the inclusion of a provision in the scheme itself which would make it alterable by the Court if and when found necessary in future to do so. A suit under S. 92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the Court can settle a scheme under S. 92(1) to prevent it from making the scheme elastic and provide for its modification in the scheme itself. That does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the modification of the scheme. We cannot agree that if the scheme is amended in pursuance of such a clause in the scheme it will amount to amending the decree. The decree stands as it was, and all that happens is that a part of the decree which provides for management under the scheme is being given effect to. It seems to us both appropriate and convenient that a scheme should contain a provision for its modification, as that would provide a speedier remedy for modification of the manner of administration when circumstances arise calling for such modification than through the cumbrous procedure of a suit.”

Discharge/Release of Trustees

The person who created the trust may mould it in whatever form he pleases.[184] The instrument, therefore, may indicate how the office of the trustee may be filled in when vacancy occurs; but so far as ‘discharge’, in the sense of release from responsibility, is concerned, it shall be governed by law.[185]

Rights of Beneficiaries/Worshippers to File a Suit

Referring to various decisions it is observed in Bomi Munchershaw Mistry Vs. Kesharwani Co-operative Housing Society Limited,[186] as to the authority of the beneficiaries to file a suit, as under:

• “A gradual loosening of the old rigidity is visible in later decisions: Janakirama Iyer Vs. NilkanthIyer[187]  lays it down that Section 63 of the ITA (Indian Trusts Act) is not exhaustive of remedies available to a beneficiary, where the trustee has improperly alienated trust property. … What Janakirama (supra) specifies is that the beneficiary can sue third parties for more effective reliefs than those contemplated by Section 63.”

The right of worshippers to file suits, for reliefs outside S. 92 CPC, is well accepted.[188] It is now a settled law that a worshipper has his own right to institute a suit to protect his right to worship and for that purpose to protect the debuttar property and that he can do so in his personal capacity as worshipper and not as a next friend of the deity.[189] It has been clearly laid down by the Supreme Court in Deoki NandanVs. Murlidhar that the worshippers have a ‘beneficial interest’.[190]Where the Shebait is in existence and functions normally, the deity’s right to sue lies dormant; but as soon as the Shebait is unable to act, or his own act is questioned, certainly a person who has a beneficial interest,[191] should be allowed to take steps to prevent the idol’s interest being jeopardised.[192]

Section 92: A Representative Action

A suit under Section 92 of the Code is a representative suit.[193] In R. Venugopala Naidu Vs. Venkatarayulu Naidu Charities[194] our Apex Court held that the named plaintiffs in a suit under Sec. 92 CPC being the representatives of the public at large, all such interested persons who were represented would be considered, in the eye of law, to be parties to the suit. Therefore, a suit under Sec. 92 of the Code binds not only the parties named in the suit-title but it binds all those who are interested in the trust also, under Explanation VI to Section 11 of the CPC.[195]

Whether Bar for Ordinary Suit, against Ex-Trustees, to Render Accounts

In Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru  Pattabhirami   Reddi[196] new trustees alleged misfeasance, malfeasance and nonfeasance and also gross negligence against former trustees. While considering the questions whether the present trustees can demand rendition of account from the ex-trustees in respect of their management without alleging against them any acts of negligence or willful default and, if so, whether there was a bar to the maintainability of a suit for the relief of rendition of accounts in a civil court, it was observed by our Apex Court that  it was ‘common place that no trustee can get a discharge unless he renders accounts of his management’ and that this liability was irrespective of any question of negligence or wilful default. They are, therefore, held liable to render accounts of their management to the present trustees.

Quoting Sir Thomas Flumer, M R., in Attorney General Vs. Exetor Mayor[197] and referring Anyasayya Vs. Muthamma[198] and Hariharabrahman Vs. Janakiramiah[199] it was held that the courts had discretion in regard to the fixing the period of accounting in a suit for accounting against a trustee of a charity.

Sec. 92 Not Applicable in a Suit by a Trust Against Sevadar

In Ghat Talab Kaulan Wala Vs. Baba Gopal Dass Chela Surti Dass[200] the plaintiff Society alleging itself to be owner or trustee of the suit Mandir property sought for mandatory injunction to direct defendant Sevadar to vacate management of, building and other property. The Supreme Court held that in such a suit,filed by a Trust, the procedure prescribed under Section 92 of Code would not be applicable.

Hindu Religious and Charitable Endowments Act, Not a Bar

It was held by the Supreme Court in Vedagiri Lakshmi Narasimha Swami Temple Vs. Induru Pattabhirami Reddi[201] it was held by the Supreme Court that S. 93 of the Madras Hindu Religious and Charitable Endowments Act was not a bar to the maintainability of a suit under S. 92. It followed Appanna Vs. Narasingha[202] and Tirumalai Tirupati Devasthanam Committee Vs. Krishnayya Shanbhaga[203] which held that the suits that did not fall within the ambit of Sec. 92 (l) of the Code of Civil Procedure were not hit by sub sec. (2) of Sec. 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951; and that Sec. 92 of the Code of Civil Procedure did not impose a general embargo on filing of a suit in a civil court, but only directed that suits of the nature mentioned in Sec. 92 (l) should not be instituted in a civil court except in conformity with the provisions of Sec. 92 (l).

Private Trust: Settlement of Scheme

If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust.[204] A suit can also be filed for settlement of a scheme for the purpose of effectively carrying out of the trust.

Section 92 CPC will not apply to private trusts, and suits relating to religious[205] private trusts are not regulated by the Indian Trusts Act, 1882. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.[206]

In Thenappa ChettiarVs. Karuppan Chettiar,[207] the Supreme Court held that even in the case of a private trust, a suit could be filed for settlement of a scheme for the purpose of effectively carrying out the object of the trust.[208] If there was a breach of trust or mismanagement on the part of the trustee, a suit could be brought in a Civil Court by any person interested for the removal of the trustee and for the proper administration of the endowment.

See Also Blog: Public & Private Trusts in India.

Breach of Trust and Provisions of the Indian Trusts Act

Section 95 of the Indian Trusts Act, 1882 sets out that ‘constructive trustees’are also bound by the provisions of the Chapter IX of the Indian Trusts Act.Courts have invoked and applied Section 95 to the deeds of the administrators of companies, societies, etc.  As per the definition of trust in Sec. 3 of the Indian Trusts Act the trustees must have ‘accepted’ the ‘obligations’ in the trust. In certain circumstances the law (Chapter IX containing Sections 80 to 96 of the Indian Trusts Act) implies that certain persons are bound by the obligations in the nature of trust ‘for the benefit of another’. Section 95 of the Indian Trusts Act, 1882  reads as follows:

• “The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it:
• Provided that (a) where he rightfully cultivates the property or employs it in trade or business, he is entitled to reasonable remuneration for his trouble, skill and loss of time in such cultivation or employment; and (b) where he holds the property by virtue of a contract with a person for whose benefit he holds it, or with any one through whom such person claims, he may, without the permission of the Court, buy or become lessee or mortgagee of the property or any part thereof.”

By virtue of Section 23 of the Indian Trusts Act, 1882 read with Section 95, the trustees or administrators who commit breach of trust are liable to make good the loss which the trust property or the beneficiaries have thereby sustained.

Section 23 of the Indian Trusts Act, 1882  reads as follows:

• “Where the trustee commits a breach of trust, he is liable to make good the loss which the trust property or the beneficiary has thereby sustained, unless the beneficiary has by fraud induced the trustee to commit the breach, or the beneficiary, being competent to contract, has himself, without coercion or undue influence having been brought to bear on him, concerned in the breach, or subsequently acquiesced therein, with full knowledge of the facts of the case and of his rights as against the trustee.
• A trustee committing a breach of trust is not liable to pay interest except in the following cases:
  • (a) where he has actually received interest;
  • (b) where the breach Consists in unreasonable delay in paying trust money to the beneficiary ;
  • (c) where the trustee ought to have received interest, but has not done so;
  • (d) where he may be fairly presumed to have received interest.
• He is liable, in case (a), to account for the interest actually received, and, in cases (b), (c) and (d) to account for simple interest at the rate of six per cent per annum, unless the Court otherwise directs, … …..”

S. 90 of the Indian Trusts Act directs that constructive trustees who gain advantages must hold the same for the benefit of all persons so interested.

S. 90 of the Indian Trusts Act, 1882   states:

• “Where a tenant for life, co-owner, mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to payment by such persons of their clue shares of the expenses properly incurred, and to cm indemnity by the same persons against liabilities properly contracted, in gaining such advantage.”

Court Takes into Consideration Past History

In Muhammad Ismail Ariff Vs. Adhmed Moola Dawood(1916) [209] the Privy Council observed that in giving effect to the provisions of the section and in appointing new trustees and settling a scheme, the Court was entitled to take into consideration not merely the wishes of the founder, so far as they can be ascertained, but also the past history of the institution, and the way in which the management had been carried on theretofore, in conjunction with other existing conditions that may have grown up since its foundation. It has also the power of giving any directions and laying down any rules which might facilitate the work of management, and, if necessary, the appointment of trustees in the future.

A representative Suit does Not Abate on the death of the Plaintiff

In G. Christhudas v. Anbiah, 2003-3 SCC 502, the Apex Court held that a representative suit does not abate on the death of the plaintiff. It is for two reasons:

• Firstly the plaintiff does not represent only himself but represents all other persons on whose behalf he is prosecuting the suit, thus all those persons are also parties to the suit albeit constructively, the conduct of the suit being in the hands one person to whom permission has been granted by the court and in case of his death, any other person can continue the suit.
• And secondly, the persons represented by the plaintiff cannot said to be legal representatives of the deceased plaintiff within meaning of Section 2 (11) of Code of Civil Procedure and hence the provisions of order 22 would not apply to such case. (See: Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024)

On death of a Trustee, Trust Would Not Fail; Vests in Remaining Trustees

In Kapoorchand Rajendra Kumar Jain v. Parasnath Digambar Jain Bada Mandir, 2000-1 MPJR 199, it is held as under:

• “A trustee exercises the rights of the beneficiary in such a dispute. He represents and personates the beneficiary, while dealing with the world at large. Thus, he acquires a legal personality. If there be more than one trustee, then all of them conjointly form a corporate or legal personality. This principle has been recognized under Order 31 Rule 1 of the Code of Civil Procedure. The Court has ample power to order that a suit on behalf of the beneficiary shall be represented by one or more trustees. Where there be order of the Court or if the requirement of the law, all trustees have to be joined as parties to the suit. The trust would not fail because one of the trustees had died after filing of the suit. The body of trustees is not dissolved. The trust vested in the remaining trustees shall continue. The rights and the duties of the trustees are not abrogated by the death of one of trustees. So in this case, the remaining trustees after the death of two trustees could continue the suit. The right to sue for and on behalf of the beneficiary continued. There was no abatement. This principle was recognized by the Privy Council in the case of Raja Anand Rao v. Ramdas Daduram and others, reported in AIR 1921 P.C. 123, wherein their Lordships stated that a suit, filed under Section 539 of the Code of Civil Procedure Code, 1882, could continue even after the death of person whom the Court granted permission to sue. It could be continued by a member of the public. This case was referred to with approval of the decision in the case of Charan Singh and Anr. v. Darshan Singh and others, reported in AIR 1975 SC 371 (at para 5 page 373). In somewhat similar circumstances, the Supreme Court in the case of Krishna Singh v. Mathura Ahir and others, reported in AIR 1980 SC 707, held that the death of Mahant during the pendency of a suit for ejectment brought by him against a trespasser would no cause the suit, to abate. It is true that the obligations of a Mahant are not that of a trustee but his office is akin to the office of a trustee. Therefore, the principle laid down in that case would apply.”

O 22 Not Apply to Repre. Suits where devolution (Not Substitution) takes place

In Jagadamba Bai & Beharilal Khandelwal v. Biswanath Jhunjhunwala, 1978 Cal HN 1050, it is observed as under:

• 8. In a case reported in AIR 1975 SC page 371 between Charan Singh v. Darshan Singh, Supreme Court has held that where the suit is filed in a representative capacity death of one of the plaintiffs during the pendency of the appeal, the appeal does not abate. In AIR 1921 PC at page 123 in the case of Raja Anand Rao v. Ramdas Dadu Rao, a distinction was drawn between a suit which was prosecuted by an individual for his own interests and persons suing as representatives of the general public.
• 9. Order 22 of the Civil Procedure Code provides the rules for recording the death and/or substitution of the parties. Order 22 Rule 1 provides-
  • “The death of a plaintiff or defendant shall not cause a suit to abate if the rights of suit survive”.
• Order 21 Rule 2 provides that
  • where there are more plaintiffs or defendants than one, and anyone of them dies and where the rights of a suit survive against the surviving defendants alone, the court shall cause an entry to that effect to be, made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.
• Order 22 Rule 10 provides
  • in other cases of assignments, creation or devolution of interest during the pendency of a suit, the suit may by leave of the court be continued by or against the person to or upon whom such interest has come or devolved.
• 10. Order 22 does not apply to representative suits. Suits brought in a representative character can be continued under Order 22 Rule 20(10) by the successor in office. Where a trustee dies or retires or is removed and another is elected it is a case of devolution. In this respect the relevant cases are reported in AIR 1928 Cal. page 651 and also in AIR 1926 page 540. The right to apply in such a case is pending law and accrues from day to day and is therefore not barred by the law of limitation. In this respect, reference can be made to cases reported in 57 CWN page 710 and also AIR 1952 Pat. 323 and 30 Cal. page 609. In case reported in 36 CWN at page 816 (Sri Sri Keshab Rai Jeu Thakur & Raja Jyoti Prasad Sinsh Deo) a Division Bench judgment of this High Court presided over by Mitter J. and Bartley J. it was held that Order 22 Rule 10 of the Civil Procedure Code applies to a case of substitution of a person who had sued or held been sued against in a representative capacity. In the case reported in 27 CWN at page 710 which was referred in my order, Chatterjee J. and Pearson J. held that where the heirs are substituted on the ground of devolution of interest such interest would be governed by Order 22 Rule 10. It further held that three months limitation does not apply to a case of devolution pending the suit. It further held that application under Order 22 Rule 10 can be made in the Appellate Court even over the devolution of interest when the case was pending before the Trial Court.”

On death of a Trustee, new Trustee cannot be a Legal Representative

It is pointed out in Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024) the Apex Court had held, in two cases, that on the death of a trustee new trustee (elected or appointed) cannot be said to be a legal representative of the deceased trustee but is a person on whom the interest of the Trust property devolves, under the provisions of Order 22 Rule 10; as it applies to him. The cases referred to by the J&K High Court are the following –

• Charan Singh v. Darshan Singh,1975 (1) SCC 298;
• Karuppaswamy v. C. Ramamurthy, 1993(4) SCC 41.

But, in G.F.F. Foulkes v. A.S. Suppan Chettiar, AIR 1951 Mad 296, it was held as under:

• “When a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate because, the right to represent others of a class is not right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other persons should be joined. The proper procedure , in a case like this, is for the remaining person or persons to apply to the Court for directions and it is for the Court to decide whether it will permit the remaining person or persons to whom the original sanction was given to continue to prosecute or defend the suit or appeal or it will give directions to bring on record additional person or persons.”

In a subsequent suit, Ram Kumar v. Jiwanlal, AIR 1960 Mad 288, the Madras High Court took a liberal view. It was held in this decision that a representative suit does not abate on the death of the representative as he or she can be substituted by another member of the plaintiff on defendant. (See also: Raja Anand Rao v. Ramdas Daduram, AIR 1921 PC 123, State of Rajasthan v. Mst. Parwati Devi, AIR 1966 Raj 210).

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[1]    State of Uttar Pradesh Vs. BansiDhar:  AIR 1974 SC 1084. Kishore Joo Vs. GumanBehariJooDeo: AIR  1978 All 1; HEH TheNizams Pilgrimage Money Trust d Vs. Comner. of IT AIR 2000 SC 1802; Bonnerji Vs. Sitanath: 49 IA 46: Referred to in:Rambabu Vs. Committee of Rameshwar: 1899 – 1 Bom LR 667; NathiriMenon Vs. Gopalan Nair, AIR 1916 Mad 692; Shivramdas Vs. B V Nerukar, AIR 1937 Bom 374; Sk. Abdul Kayum Vs. MullaAlibhai: AIR 1963 SC 309; Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11.

[2]Donor Bellur Vs. GM  Gadkar: 2010-4 AIR Kar R 306; 2011 2 KarLJ 307.

[3]    Rajagopal v. Balachandran: 2002 2 CTC 527; Imayam Trust Vs. Balakumar: CTC 2015 3 654: : 2015-2 MadLW 235; NadigarSangham Charitable Trust vs. S.Murugan: 2013-1 MLJ 433. Followed in N. P.   Thangaraj   Vs. Church of South India: 2014-7 MadLJ 549.

[4]    Narayan Krishnaji Vs. AnjumanEislamia: AIR1952 Kar 14: ILR 1952Kar  2; LallubhaiGirdharlal Parikh Vs. AcharyaVrijbhushanlalji: AIR 1967 Guj 280; Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; C ChikkaVenkatappa Vs. D Hanumanthappa: 1970-1 MysLJ 296; HamumiyaBachumita Vs. MehdihusenGulamhusen: 1978 GLR  661; Awadesh Kumar Vs. Rajendra Prasad Sharma: BLJ 1996-2 423: 1997-1BLJR 126; I Nelson Vs. KallayamPastorate  AIR 2007 SC 1337; Hoshiar Singh Mann Vs. Charan Singh: ILR2009-19Dlh 265; Haleema Vs. High Court Of Kerala: ILR 2011-1Ker 50: 2011-1 KerLT 134; The Breach Candy Bath Trust. Vs. DipeshMehta : 2015-6 AIR-BOMR 709.

[5]    AbhinavaPoornapriyaSrinivasaRaoSaheb, AIR 1940 Mad 617; Sobhanadreswara Rice Mill Co.Vs. BrahmachariBavaji Mutt: AIR 1973AP 292.

[6] Imayam Trust  Vs. Balakumar: 2015 3 CTC 654: 2015 2 LW 235;

[7] NadigarSangham Charitable Trust vs. S.Murugan: 2013-1 MLJ 433. Followed in: N. P.  Thangaraj  Vs.Church of South India: 2014-7 MadLJ 549; Imayam Trust  Vs.  Balakumar: 2015-3 CTC 654: 2015-2 LW 235.

[8]    NadigarSangham Vs. S.Murugan: 2013-1 MLJ 433: 2012-6 CTC 721; Imayam Trust Vs. Balakumar: CTC 2015 3 654: : 2015-2 MadLW 235.

[9] “Granting such further or other relief as the nature of the case may require.”

[10]   2013 1 MadLJ 433: 2012-6 CTC 721. Followed in: P.   Thangaraj   Vs. Church of South India: 2014-7 MadLJ 549; Deshratna Dr.  Rajendra Prasad Memorial Vs. Bihar Assn: 2015-5 MadLJ 857.

[11]   Hoshiar Singh Mann Vs. Charan Singh: ILR 2009-19 Dlh 265; See also Thenappa Chattier Vs. KuruppanChhietier” AIR 1968 SC 915; I    Nelson Vs. KallayamPastorate  AIR 2007 SC 1337. 

[12]   Hindu Law of Religious and Charitable Trusts by Justice Dr. B.K. Mukherjea, Fifth Edition, page 404.

[13]   Hoshiar Singh Mann Vs. Charan Singh: ILR2009-19Dlh 265; See also: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; Nelson Vs. Kallayam Pastorate  AIR 2007 SC 1337; C ChikkaVenkatappa Vs. D Hanumanthappa 1970 -1Mys LJ 296; Narayan KrishnajiVs. Anjuman E Islamia: AIR 1952 Kar 14.

[14]   (1874) 1 Ind App 209 at 233

[15]   See also Dr. B.K. Mukherjea: on Hindu Law of Religious and Charitable Trusts (Fifth Edition, page 404)

[16]   Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; Sridhar Vs. ShriJaganNath Temple, AIR 1976 SC 1860; In In-Re, Man Singh: AIR 1974 Del. 228. Mulla’s Hindu Law, 11th Ed. Page 489.  See Chapter: Suit against Deity: Appointment of Next Friend

[17]   ChHoshiar Singh Mann Vs. Charan Singh: ILR  2009-19Dlh 265 ; See also:   Thenappa Chattier Vs. KuruppanChhietier: AIR 1968 SC 915; I Nelson Vs. KallayamPastorate:  AIR 2007 SC 1337. 

[18]   C.K. RajanVs. GuruvayoorDevaswom Managing Committee: .AIR 1994 Ker 179. [Appeal Judgment: GuruvayoorDevaswom Managing Committee Vs. C.K. Rajan: AIR 2004 SC 561: (2003) 7 SCC 546].        

C  ChikkaVenkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; ChHoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265;  Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337;  Sk. Abdul KayumVs.MullaAlibhai: AIR 1963 SC 309.

[19]   Haleema Vs. High Court Of Kerala: ILR 2011-1Ker 50: 2011-1 KerLT 134, Awadesh Kumar Vs. Rajendra Prasad Sharma: BLJ 1996-2 423: 1997-1BLJR 126; C ChikkaVenkatappa Vs. D Hanumanthappa: 1970-1 MysLJ 296; arayan Krishnaji Vs. AnjumanEislamia: AIR1952 Kar 14: ILR 1952Kar  2; HamumiyaBachumita Vs. MehdihusenGulamhusen: 1978 GLR  661; LallubhaiGirdharlal Parikh Vs. AcharyaVrijbhushanlalji: AIR 1967 Guj 280; The Breach Candy Bath Trust. Vs. Dipesh Mehta : 2015-6 AIR-BOMR 709.

[20]   AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC  3162. Referred to in: Mandal Revenue Officer Vs. GoundlaVenkaiah: AIR 2010 SC 744.

[21]SubramannaiyaVs.Abbinava: AIR  1940 Mad. 617; Quoted in Sankaranarayanan Vs. ShriPoovananatha: AIR  1949 Mad.721; Sankaranarayanan Vs. ShriPoovananatha: AIR  1949 Mad.721; Parshvanath Jain Temple Vs. LRs of PremDass: 2009-3 RCR(Civil) 133

[22]   (1986) 3 SCC 391.

[23]AIR 1974 Del. 228; See also: AvochThevarVs. Chummar, AIR 1957 Ker. 171; In Re Birla Jankalyan Trust: AIR 1971 Cal. 290; In Re Dhanalat, AIR 1975 Cal. 67.

[24]   28^th Edition, pages 210 and 211

[25]   C.K. RajanVs. GuruvayoorDevaswom Managing Committee: .AIR 1994 Ker 179. [Appeal Judgment: GuruvayoorDevaswom Managing Committee Vs. C.K. Rajan: AIR 2004 SC 561: AA GopalakrishnanVs. Cochin Devaswom Board: AIR 2007 SC 3162. Mandal Revenue Officer Vs. GoundlaVenkaiah: AIR 2010 SC 744. SubramannaiyaVs.Abbinava: AIR  1940 Mad. 617. Quoted in Sankaranarayanan Vs. ShriPoovananatha: AIR  1949 Mad.721, Parshvanath Jain Temple Vs. L.Rs of PremDass: 2009-3-RCR(CIVIL) 13) , Fakhuruddin Vs. Mohammad Rafiq: AIR  1916 All 115 (PC); C  ChikkaVenkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915; Sridhar Vs. ShriJaganNath Temple, AIR 1976 SC 1860; YogendraNathNaskarVs. Commissioner Of Income Tax Calcutta: AIR 1969 SC 1089. ChHoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265;  I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337; Sk. Abdul KayumVs.MullaAlibhai: AIR 1963 SC 309.

[26]   Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915

[27]   AG Vs. Pearson: (1817) 3 Mer 353;

Referred to in KS  Varghese Vs. St. Peters and St. Pauls: (2017) 15 SCC 333;

Fakir Mohamed Abdul Razak Vs. Charity Commr Bombay: AIR 1976 Bom 304;

Narasimhiah Vs. YH Venkataramanappa: AIR  1976Kar 43;

Sobhanadreswara Rice Mill Vs. BrahmachariBavaji Mutt: AIR  1973 AP 292.

SubramaniaGurukkal Vs. AbhinavaPoornapriya: AIR 1940 Mad 617;

Mohideen Khan Vs. Ganikhan: AIR  1956 AP 19.

See with respect to Educational Institution: KK Saksena  Vs. International Commission on Irrigation and Drainage: 2015-4 SCC 670.

[28]   ChHoshiar Singh Mann Vs. Charan Singh Laws:ILR2009-19Dlh265

See also Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915;

I Nelson Vs. KallayamPastorate  AIR 2007 SC 1337. 

In In-Re, Man Singh and other, AIR 1974 Del. 228.

[29]   AIR1946 PC 34.

[30]   Referred to in KS  VargheseVs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333;

NarasimhiahVs. Y H Venkataramanappa: AIR 1976 Kar 43.

[31]   AIR  1994 Ker 179.

[32]   Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1,

SugraBibi Vs. HaziKummu Mia, AIR 1969 SC 884

S. MassiratHossain v. Hossain Ahmad Chowdhury, (1896-97) 1 CWN 345.

VaidyaNathAiyyar v. SwaminathaAyyar, (1923-24) 51 I.A. 282

[33]   R. Venugopals Naidu Vs. Venkatarayulu Naidu Charities:  AIR 1990 SC 444; Shavax A. Lal Vs. Syed MasoodHosain: AIR 1965 A.P. 143;  Kumudavalli Vs. P.N. Purushotham: AIR 1978 Mad. 205.

[34]   Chairman Madappa Vs. M.N. Mahanthadevaru: AIR 1966 SC 878;

Quoted in: Ashok Kumar Gupta Vs. SitalaxmiSahuwala   Trust: 2020-3 JT 1.

[35]   Donor Bellur Vs. GM  Gadkar: 2010-4 AIR Kar R 306; 2011 2 KarLJ 307.

[36]   Raju Vs. Advocate General H C Buildings Madras: AIR 1962 Mad 320;

NarayanaPillai Vs. Jyothi; Citations: ILR  1992-1 Ker 470.

[37]   P. Venugopala Naidu v. Venkita Raghulu Naidu Charities: 1990 AIR  SC 444;

Shiromani Gurdwara Parbandhak v. Mahant Harnam Singh: 2003 AIR SC 3349

[38]   R M NarayanaChettiar Vs. N LakshmananChettiar: AIR  1991 SC 221;

Vidyodaya Trust Vs. Mohan Prasad: AIR  2008  SC 1633.

[39]   Mahant Pragdasji Gum Vs. Patel Iswarlalbhai: AIR 1952 SC 143;

Jathedar Sadhu Singh Vs. Charan Singh: AIR 1972 P&H 347;

R KrishnuppaSettyVs.L Ramakrishnappa ILR 1993 Kar 1580.

[40]Pragdasji Vs. Ishwarlalbhai: AIR 1952 SC 143;

Also See: HarendraNathVs. Kali Ram Das: AIR 1972 SC 246.

[41]Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1;

Budreedas v. Choonilal, I.L.R. 33 Cal. 789

[42]   2013 1 MadLJ 433: 2012-6 CTC 721;

Deshratna Dr.  Rajendra Prasad Memorial Vs. Bihar Assn: 2015-5 MadLJ 857.

[43] V.   Rajasekaran  Vs. M.   Rajendiran, Trustee MGR  Trust : 2007(1) MLJ 683

NadigarSangham Charitable Trust Vs. S.Murugan: 2013-1 MLJ 433;

Deshratna Dr.  Rajendra Prasad Memorial Vs. Bihar Assn: 2015-5 MadLJ 857.

[44]   Swami ParmatmanandSaraswathi Vs. RamjiTripati: AIR 1974 SC 2141;

R M NarayanaChettiar Vs. N LakshmananChettiar: AIR  1991 SC 221;

Vidyodaya Trust Vs. Mohan Prasad: AIR  2008  SC 1633.

[45] Chairman Madappa Vs. M.N. Mahanthadevaru: AIR 1966 SC 878;

Quoted in: Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1.

[46] AIR 1967 SC 1044

[47]AIR 1969 SC 884

[48]2020-3 JT 1

[49]   T  Varghese George Vs. Kora K George: AIR 2012 SC 144;

All India Women’s Conference Vs. Sarla Shah: 2004-13 SCC 402.

[50]   See: R. Venugopals Naidu Vs. Venkatarayulu Naidu Charities:  AIR 1990 SC 444.

Also see: Shavax A. Lal Vs. Syed MasoodHosain: AIR 1965 A.P. 143; 

KumudavalliVs. P.N. Purushotham: AIR 1978 Mad. 205.

[51] Chairman Madappa Vs. M.N. Mahanthadevaru: AIR 1966 SC 878;

Quoted in: Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1.

[52]  2018-2 CivCC 771; 2018-248 DLT 158

[53]2004-13 SCC 402;

See also: T  Varghese George Vs. Kora K George: AIR 2012 SC 144;

BishwanathVs. Shri Thakur Radhaballabhji: AIR 1967 SC 1044.

[54]Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1; 

Dashmesh Hospital VsHarpal Singh: 2018-2 CivCC 771; 2018-248 DLT 158

[55]   Rajagopal Vs. Balachandran: 2002(2) CTC 527

[56]   Swami ParmatmanandSaraswatiVs. RamjiTripathi: AIR 1974 SC 2141.

Referred: Association of RDB Bagga Singh Vs. Gurnam Singh, AIR 1972 Raj 263;

Sohan Singh Vs.Achhar Singh, AIR 1968 P&H 463

Radha Krishna Vs. LachhmiNarain, AIR 1949 Oudh 203

[57]   Kumudavalli vs. P.N. Purushothama AIR 1978 Mad 205.

[58]   Charan Singh VsDarshan Singh:AIR 1975 SC 371

See: Assn. of RDB Bagga Singh Vs. Gurnam Singh, AIR 1972 Raj 263;

Sohan Singh Vs. Achhar Singh, AIR 1968 P&H 463; 

Radha Krishna Vs. LachhmiNarain, AIR 1948 Oudh 203.

[59]   2013 1 MadLJ 433: 2012(6) CTC 721

[60]   Swami ParmatmanandSaraswathi Vs. RamjiTripatiii: AIR 1974 SC 2141; Vidyodaya Trust Vs. Mohan Prasad R.: AIR 2008  SC 1633;

Swami ShivshankargiriChella Swami Vs. SatyaGyanNiketan: AIR 2017 SC 1221.

[61]Soar Vs. Ashwell (1893) 2 QB 390, per Bowen L. J.

Quoted in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[62]Maudsley and Burn Trusts and Trustees 2nd ed. p. 213;

Quoted in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[63]   B S Adityan Vs. B RamachandranAdityan: AIR  2004 SC 3448

[64]   Swami ParmatmanandSaraswathiVs. RamjiTripati: AIR 1974 SC 2141. R M NarayanaChettiar Vs. N LakshmananChettiar: AIR 1991 SC 221;

Vidyodaya Trust Vs. Mohan Prasad R.:: AIR  2008  SC 1633.

[65]   Vidyodaya Trust Vs. Mohan Prasad R.: AIR  2008  SC 1633.

[66]SugraBibi Vs. HaziKummu Mia, AIR 1969 SC 884;

Vedagiri Lakshmi N. Swami Temple Vs. InduruPattabhiramiReddi: AIR 1967  SC 781.

[67]   Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1;

Swami ParmatmanandSaraswathi Vs. RamjiTripatiii: AIR 1974 SC 2141;

Shanmukham Vs. Govinda, AIR 1938 Mad 92;

TirumalaiDevasthanams Vs. Krishnayya, AIR 1943 Mad 466 (FB),

Sukumaran Vs. AkamalaSree Dharma Sastha Idol: AIR 1992 Ker 406;

Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633.

[68] AIR 1969 SC 884

[69]2020-3 JT 1

[70] AIR 1969 SC 884

[71]ILR (1938) Mad. 39.

[72]C. PadmavathiVs. KTAnbalagan: 2019-5 MadLJ 470: 2019-4 CTC 330.

[73] AIR 1943 Mad 466.

[74] AIR 1969 SC 884

[75] AIR 1974 SC 2141

See also:Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633;

Swami ShivshankargiriChella Swami Vs. SatyaGyanNiketan: AIR 2017  SC 1221.

[76]2019 -3 MadLW 193: 2019-5 MadLJ 470: 2019-4 CTC 330

[77]Kuldip Chand Vs.  Advocate General to Government of H P: AIR 2003 SC 1685.

[78]M R GodaRao Sahib Vs. State of Madras: AIR 1966 S C 653;

Ram Charan Das Vs. Mst. Girjanandani Devi AIR 1959 All 473;

Shri Ram Kishan Mission Vs. Dogar Singh AIR 1984  All 72;

S. ShanmugamPillai Vs. K. ShanmugamPillai: AIR 1972 SC 2069;

Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.

[79]   ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.

[80]   KeshavaPanicker Vs. DamodaraPanicker:AIR 1976 Ker 86.

      See also: C ChikkaVenkatappaVs. D Hanumanthappa 1970 (1) Mys LJ 296; ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.

[81]   See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762

[82]   See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762

[83]   AIR 2005 Ker 233

[84]   The ‘wider’ or ‘general’ expression as to ‘trust’, used by the progressive jurists, is adopted in the Societies Registration Act.

[85]   See Narayanan Vs. Nil: AIR 2005 Mad. 17;

M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273;

T C ChackoVs.Annamma:  AIR 1994 Ker. 107 .

[86]   C  ChikkaVenkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296;

Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14:

Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915.

[87]   AIR 1952 SC 143. Also See: HarendraNathVs. Kali Ram Das: AIR 1972 SC 246.

[88]   Swami ParmatmanandSaraswathi Vs. RamjiTripatiii: AIR 1974 SC 2141; Vidyodaya Trust Vs. Mohan Prasad R.: AIR 2008  SC 1633.

[89]   See: Church of North India Vs. Lavajibhai: AIR 2005 SC 2544:  2005 (10) SCC 760.

Followed in Vinodkumar M. MalaviaVs.MaganlalMangaldasGameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; 2013 (15) SCC 394.

[90]   Swami ShivshankargiriChella Swami Vs. SatyaGyanNiketan: AIR 2017 SC 1221.

[91]2017-4 SCC 771; AIR 2017 SC 1221.

[92]1992 (2) CurCC429:AIR 1992 Ker 406. 

[93]1992 (2) CurCC429:AIR 1992 Ker 406. 

[94]AIR 1976 Ker 86:

[95]LAWS(DLH) 2018 7 484

[96]LAWS(DLH) 2018 7 484

[97]2017-4 SCC 771; AIR 2017 SC 1221.

[98]AIR 1976 Ker 86

[99]AIR 2005 Ker 233

[100]1987-100 LW 182

[101]AIR 2007 Mad 25

[102]2001-3 ShimLC 319

[103]Quoted in: B. RamachandraAdityanVs. Educational Trustee Co: 2003-113 Comp Cases 334.

[104] KeshavaPanicker Vs. DamodaraPanicker AIR 1976 Ker 86;

C ChikkaVenkatappaVs. D Hanumanthappa 1970 (1) Mys LJ 296.

[105] Eg.A temple or a mathor Guru Granth Sahib, revered in a Gurudwara.

[106]KeshavaPanicker Vs. DamodaraPanicker AIR 1976 Ker 86

[107] Quoted in: Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India[107] LAWS(DLH) 2018 7 484;

Sukumaran Vs. AkamalaSree Dharma Sastha: AIR 1992 Ker 406;

Baby Vs. Steward Co. Ltd: ILR 1991-1 Ker 587, 1990-2 KerLJ 272.

[108] 2016(2) Ker LT 791

[109] AmrithakumariVs. VP Ramanathan: 1999 (1) CCC 238 (Ker.)

[110]Sukumaran Vs. AkamalaSree Dharma Sastha Idol: AIR 1992 Ker 406

[111] Church of North India Vs. LavajibhaiRatanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760

[112] AIR 2005 SC 2544: 2005 (10) SCC 760

[113] 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394

[114]See: DeokiNandan Vs. Murlidhar: AIR 1957 SC 133;

Commissioner of Endowments Vs. VittalRao:  AIR  2005 SC 454;

Bala Shankar MahaShankerBhattjee Vs. Charity Commr Gujarat: AIR  1995 SC 167,

Jammi Raja Rao Vs. Anjaneya Swami Temple Valu: AIR 1992 SC 1110,

Radhakanta Deb Vs. Commissioner of Hindu Religious Endowments Orissa: AIR  1981 SC 798;

Commr for Hindu Religious and Ch. Endts. Vs. RatnavarmaHegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Purshottambuwa Vs. ChCommr, Bombay: AIR  1976 SC 871;

MahantShriSrinivasRamanuj Das Vs. Surajnarayan Das: AIR  1967 SC 256

[115] 2003-3 Mad LW 372: 2003-3 CCC367

[116] 1963 -2 MLJ 56

[117]Followed in N. P.Thangaraj Vs. Church Of South India 2014-75 MadLJ 49

[118] 2013-5 Mad LJ 744.

[119] Snehasagar Charitable Trust Vs. State:  ILR 2010 (2) Ker 738

[120] See M. P. Public Trust Act, 1951; Bombay Public Trusts Act, 1950

[121]LAWS(DLH) 2018 7 484

[122] Chairman Madappa Vs. M.N. Mahanthadevaru: AIR 1966 SC 878;

Quoted in: Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1.

[123]AIR 1952 SC 143

[124]R. Venugopals Naidu Vs. Venkatarayulu Naidu Charities:  AIR 1990 SC 444;

Shavax A. Lal Vs. Syed MasoodHosain: AIR 1965 A.P. 143; 

KumudavalliVs. P.N. Purushotham: AIR 1978 Mad. 205.

[125]Also See: HarendraNath Vs. Kali Ram Das: AIR 1972 SC 246

[126] Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633.

[127]See: R. Venugopal Naidu Vs. Venkatarayulu Naidu Charities:  AIR 1990 SC 444. Also see: Shavax A. Lal Vs. Syed MasoodHosain: AIR 1965 A.P. 143; 

KumudavalliVs. P.N. Purushotham: AIR 1978 Mad. 205.

[128] Swami ParmatmanandSaraswathiVs. RamjiTripati: AIR 1974 SC 2141.

R M NarayanaChettiar Vs. N LakshmananChettiar: AIR  1991 SC 221;

Vidyodaya Trust Vs. Mohan Prasad R.: AIR  2008  SC 1633;

Bishwanath Vs. Thakur RadhaBallabhji: AIR 1967 SC 1044;

Ashok Kumar Gupta Vs. SitalaxmiSahuwala Medical Trust: 2020-3 JT 1

T  Varghese George Vs. Kora K George: AIR 2012 SC 144.

[129]           Pragdasji Vs. Ishwarlalbhai: AIR 1952 SC 143;

Abdur Rahim Vs. Abu MahomedBarkat Ali: AIR 1928 PC 16.

[130] Bishwanath Vs. Thakur RadhaBallabhji: AIR 1967 SC 1044;

PS Subramanian Vs. KL Lakshmanan: 1998-1 ICC 671

Pragdasli Guru Bhagwandasji Vs. Ishwarlalbhai: AIR 1952 SC 143;

[131] Bai Hira Devi Vs. Official Assignee Of Bombay: AIR  1958 SC 448;

Balakrishna Savalram Vs. Dhyaneshwar Maharaj Sansthan: AIR  1959 SC 798;

SugraBibi Vs. HaziKummu Mia, AIR 1969 SC 884;

Swami ParmatmanandSaraswathi Vs. RamjiTripatiii: AIR 1974 SC 2141;

Charan Singh Vs. Darshan Singh: AIR  1975 SC 371;

Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633;

Shanmukham Vs. Govinda, AIR 1938 Mad 92; 

TirumalaiDevasthanams Vs. Krishnayya: AIR 1943 Mad 466 (FB).

[132] Swami ParmatmanandSaraswathi Vs. RamjiTripatiii: AIR 1974 SC 2141;

Shanmukham Vs. Govinda: AIR 1938 Mad 92;

TirumalaiDevasthanams Vs. Krishnayya: AIR 1943 Mad 466 (FB),

SugraBibi Vs. HaziKummu Mia: AIR 1969 SC 884;

Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633.

[133] Bishwanath Vs. Thakur RadhaBallabhji: AIR 1967 SC 1044; 

Viji P Issac Vs. Wilson: 2009-82 AIC 313:  2009-4  ICC 578: 2010-8 RCR (CIVIL)  725

MukhdaMannudasBairagi Vs. ChaganKisanBhawasar, AIR 1959 Bom 491

[134]           AwadeshOzha Vs. RamchandraMourya: AIR2009 MP 255;

Veerbasavaradhya  Vs. Devotees of Lingadagudi Mutt: AIR 1973 Mys 280

HarendraNath v. KaliramDas:AIR 1972 SC 246;

Sri Veerabhadraswami Vs. Maya Kone:AIR 1940 Mad 81

MukaremdasMannudas v. ChhaganKisanBhawsar: AIR 1959 Bom 491.

[135] AmritLalKohliVs.HarbansLalKohli: AIR 2001 Delhi 24

[136] Bishwanath Vs. Thakur RadhaBallabhji: AIR 1967 SC 1044; 

Darshan La1 Vs. ShibjiMahrajBirajman, AIR 1923 All 120;

MadhavraoAnandrao Vs. ShriOmkareshvarGhat, AIR 1929 Bom 153

[137] BishwanathVs. Sri Thakur RadhaBallabhji, AIR 1967 SC 1044.

[138] Subramania vs. Maya Kone, AIR 1940 Mad. 81

[139] Ranchhoddas vs. MahalaxmiVahuji, AIR 1953 Bombay 153

[140] KarimbanakkalPokkerVs.KathrikoyaMollaILR 1990-2 Ker 142.

[141] Sri Ram Chandra RaghunathjiMandirVs. Baradraj: 1983-9 All LR 355.

[142] PuttuLal vs. M DayaNand: AIR 1922 All 499;

      Muhammad Abdul Majid Khan vs. Ahmad Said Khan: (1913) 35 Alld. 459.

[143] Mt. Shah Jahan Begum Vs. Ibn Ali: AIR 1945 All. 69

[144] AA KoraVs. St.  Mary’s: LAWS(KER) 2019-12-56.

[145] Ray Sudhan Vs. Sajeendran: 2017-1 KerLT 371

[146] Hoshiar Singh Mann Vs. Charan Singh:ILR2009-19Dlh 265.

[147] Bhagauti Prasad Khetan Vs. LaxminathjiMaharaj,AIR 1985 All 228; relying on

BishwanathVs. Sri Thakur RadhaBallabhji,AIR 1967 SC 1044.

PS Subramanian Vs. KL Lakshmanan: 1998-1 ICC 671.

[148] PS Subramanian Vs. KL Lakshmanan: 1998-1 ICC 671.

[149]P.D.  Jose Vs. KarmaleethaSabha: LAWS(KER) 2013-11 17

[150]NilkanthDevraoNadkarny Vs. Ramakrishna VithalBhat: (1921) ILR 46 Bom 101;

KhemchandGorumal Vs. ParmanandDeepchandHinduja : 1962-64BLR 235.

[151]Sehdev Kumar Vs. Grant Sahib Dera:2018-1 RCR(Civil)655: 2018-1 PunLR 760,

[152]Bishwanath vs. Sri Thakur RadhaBallabhji: AIR 1967 SC 1044

[153]Abdul Rahim vs. AbyMahomedBarkat Ali: AIR 1928 PC16;

Pragdasji Guru Bhagwandasji v. IshwarlalbhaiNarsibhai: AIR 1952 SC 143.

[154]MukhdaMannudasBairagi v. ChaganKisanBhawasar: AIR 1959 Bom 491.

[155]DarshonLal v. ShibjiMaharaJBirajman: AIR 1923 All 120: MadhavraoAnandraoRaste v. ShriOmkareshvarGhat: AIR 1929 Bom 153.

[156]GhatTalabKaulanWala Vs. Baba GopalDass Chela:  2020-2 JT 18

[157] Chairman Madappa Vs. M.N. Mahanthadevaru: AIR 1966 SC 878.

[158] Swami ParmatmanandSaraswathi Vs. RamjiTripatiii: AIR 1974 SC 2141;

Shanmukham Vs. Govinda, AIR 1938 Mad 92;

TirumalaiDevasthanams Vs. Krishnayya, AIR 1943 Mad 466 (FB),

SugraBibi Vs. HaziKummu Mia, AIR 1969 SC 884;

Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633.

[159] CTC 2018 1 866

[160] AIR 1985 All 228

[161] AIR 1967 SC 1044

[162] AIR 1975 SC 371:1975 (1) SCC 298

[163]AIR 1928 PC 16; Followed in Pragdasli Vs. Ishwarlalbhai:AIR 1952 SC 143

[164] Quoted in: P.  Elumalai Vs. Pachaiyappa’s Trust Board: 2018-1 LW 99; 2017-8 MLJ 529

[165]2014-7 MadLJ 549

[166] AIR 1975 SC 371:1975 (1) SCC 298

[167]AIR 1928 PC 16; Followed in Pragdasli Vs. Ishwarlalbhai:AIR 1952 SC 143

[168] Quoted in: P.  Elumalai Vs. Pachaiyappa’s Trust Board: 2018-1 LW 99; 2017-8 MLJ 529.

[169]AIR 1963 Ker 191; Followed in St.John’sJacobite Syrian Church Vs. Fr.  John Moolamattom: 2005-1 KLT 307.

[170]  R. VenugopalaNaidu  Vs. Venkatarayulunaidu Charities:  AIR 1990 SC 444.

[171]MahantPragdasji Gum Bhagwandasji Vs. Patel Iswarlalbhai:AIR 1952 SC 143

[172]AIR 1972 P&H 347.

[173] AIR 1952 SC 143

[174]ILR 1993 Kar 1580

[175]PS Subramanian Vs. KL Lakshmanan: 1998-1 ICC 671.

[176]ILR 2010- 20 Del 1792, 2010 -17 DLT 1 647

[177] LAWS(KER) 2019 12 56

[178]AIR 1963 Ker 191; Followed in St.John’sJacobite Syrian Church Vs. Fr.  John Moolamattom: 2005-1 KLT 307.

[179]AIR 2014 Ker 95.

[180] LAWS(KER) 2015 6 136

[181]LAWS(KER) 2015 3 1637

[182]LAWS(KER) 2015 3 283

[183] AIR  1961 SC 1206

[184] Lewin on Trusts: 12th Edn., p.805

[185] Seth SoorajmulJalan Trust Vs. TolaramJalan: LAWS (Cal) 2015-9-1.

Relied on: S. DarshanLall Vs. R.E.S Dalliwal; AIR 1952 All 825;

Sri Vedagiri Temple Vs. I.P. Reddi: AIR 1967 SC 781.

[186] 1993-2 BomCR 329

[187] AIR 1962 SC 633

[188] VemareddiRamaraghavaReddi Vs. KondaruSeshuReddi, AIR 1967 SC 436;

Bhagauti Prasad Khetan Vs. LaxminathjiMaharaj: AIR 1985 All 228 : In this case distinguished (pointing out actual worship of the idol sans right to worship) Sri Thakur Krishna Chandramajiu Vs. Kanhayalal, AIR 1961 All 206.

See also JangiLal Vs. B. PannaLal, AIR 1957 All 743;

BehariLal Vs. Thakur RadhaBallabhji, AIR 1961 All 73

[189] Sri IshwarVs. Gopinath Das: AIR 1960 Cal 741.

See also: SamitPaniBrahmachary Vs. MayapurChaitanya Math: AIR1999 Cal  132;

ThakurjiMaharajVs.Dankiya: AIR 1986 All 247.

[190] AIR 1957 SC 133

[191] Note: Not the  ‘proprietary interest’ or interest pertaining to owner; it is the interest pertaining to beneficiaries.

[192] BehariLal Vs. Thakur RadhaBallabhji: AIR 1961 All 73 

[193] SugraBibi Vs. HaziKummu Mia: AIR 1969 SC 884;

Vidyodaya Trust Vs. Mohan Prasad: AIR 2008 SC 1633

[194] AIR 1990 SC 444.

[195] See also: Shavax A. Lal Vs. Syed MasoodHosain: AIR 1965 A.P. 143;

KumudavalliVs. P.N. Purushotham: AIR 1978 Mad. 205.

[196] AIR 1967 SC 781

[197] (1822) 37 ER 918

[198] AIR 1919 Mad 943

[199] AIR 1955 Andhra 18

[200] 2020 – 2 JT 18

[201] AIR 1967 SC 781

[202] ILR 45 Mad 113: (AIR 1922 Mad 17 (FB)

[203] AIR 1943 Mad 466 (FB)

[204] Cheriyathu Vs. ParameswaranNamboodiripad: 1953 Ker LT 125;

Also ManoharMukherji Vs. Raja Peary Mohan Mukherji (24 Calcutta Weekly Notes 478);

Bimal Krishna Vs. IswarRadhaBalla (1937 Cal 338);

RajasekharanNaickerVs.Govindankutty 1983 KerLJ 506.

[205] See Sec. 1.

[206] Cheriyathu Vs. ParameswaranNamboodiripad: 1953 Ker LT 125,

Also 1953 Ker LT 117; AIR1922 P. C. 253 A I R 1925 P C 139.

[207] AIR 1968 SC 915

[208] Pramatha Nath Mullick Vs. Pradyumna Kumar Mullick:  AIR 1925 PC139;

Ramchand Vs. Thakur Janki Ballabhji Maharaj: AIR 1970 SC 532;

Asha Bibi Vs. Nabissa Sahib: AIR1957 Mad 583 ;

 Mahadeo Jew Vs. Balkrishna Vyas: AIR 1952 Cal 763.

[209] (1916) ILR 43 Cal 1085: 31 MLJ 390 (PC)

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• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
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• Adverse Possession: Burden to Plead Sabotaged in Nazir Mohamed v. J. Kamala
• Can Courts Award Interest on Equitable Grounds?
• Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
• Sec. 91 CPC and Suits Against Wrongful Acts
• The Law and Principles of Mandatory Injunction
• Declaration and Injunction
• Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
• Unstamped & Unregistered Documents and Collateral Purpose
• Interrogatories: When Court Allows, When Rejects?
• Can a Party to Suit Examine Opposite Party, as of Right?
• Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
• Adverse Possession: An Evolving Concept

Evidence Act

• EFFECT OF MARKING DOCUMENTS WITHOUT OBJECTION
• Sec. 65B Evidence Act Simplified
• Oral Evidence on Contents of Document, Irrelevant
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ under Sec. 65B Evidence Act.
• OBJECTIONS TO ADMISSIBILITY & PROOF OF DOCUMENTS
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Presumptions on Documents and Truth of its Contents
• Best Evidence Rule in Indian Law
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Notary-Attested Documents: Presumption, Rebuttable
• Significance of Scientific Evidence in Judicial Process
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Presumptions on Registered Documents & Collateral Purpose
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting Witnesses
• Polygraphy, Narco Analysis and Brain Mapping Tests in Criminal Investigation

Constitution

• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Why No Reservation to Muslim and Christian SCs/STs (Dalits)? What are the Counter Arguments?
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Judicial & Legislative Activism in India: Principles and Instances
• Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
• Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
• Article 370: Is There Little Chance for Supreme Court Interference
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
• CAA Challenge: Divergent Views
• Secularism & Freedom of Religion in Indian Panorama
• Can Legislature Overpower Court Decisions by an Enactment?

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Contract Act and other Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?

Easement

• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Club/Society

• State-Interference in Affairs of Societies & Clubs
• Election & Challenge in Societies and Clubs
• Rights & Liabilities of Members of Clubs and Societies
• Suits By or Against Societies, Clubs and Companies
• How to Sue Societies, Clubs and Companies
• Court’s Jurisdiction to Interfere in the Internal Affairs of a Club or Society
• Vesting of Property in Societies and Clubs
• Legal Personality of Trustees and Office Bearers of Societies
• Incidents of Trust in Clubs and Societies.
• Management of Societies and Clubs, And Powers of General Body and Governing Body
• Court Interference in Election Process
• Clubs and Societies, Bye Laws Fundamental
• Juristic Personality of Societies and Clubs
• Societies and Branches
• Effect of Registration of Societies and Incorporation of Clubs
• Clubs and Societies: General Features

Trusts/Religion

• Philosophy of Idol Worship
• Vesting of Property in Public Trusts
• Dedication of Property in Public Trusts
• Is an Idol a Perpetual Minor?
• Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Public & Private Trusts in India.
• What is Trust in Indian Law?
• Incidents of Trust in Clubs and Societies
• Vesting of Property in Trusts
• Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
• M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
• Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional.