OSA/129/2003 of L.M.MENEZES Vs MOST REV.ARUL DAS JAMES on 22 December 2003

:J U D G M E N T

A.KULASEKARAN,J.

Since the issues involved in both these appeals are correlated, theseappeals are being disposed of in common.

2. Plaintiffs are appellants in these appeals, which are filedagainst the common order of a learned single Judge of this Court, revoking theleave granted, under Section 92 of C.P.C., and dismissing the applications forimpleading the Trust.

3. Leave was originally granted by an order dated 27.02.2002 inApplication No.567 of 2002, to institute a suit only against the respondentsherein under Section 92 of C.P.C., As the appellants failed to array the Trustas a defendant in the suit, later, an application to implead was filed. Onthe application preferred by the respondents herein to revoke the leave, thelearned single Judge passed a common order allowing the application to revokethe leave and dismissing the application to implead.

4. Philanthropist Sir John De Monte was a Roman Catholic and adescendant of the Portugees, who settled down in India. He was gifted withbrilliant talent, but not with money, during his childhood. He was employedby Mr.Christopher Bilderbeck as a Dubash. His honesty and ability placed himto the status of marrying Mary Bilderbeck, sister of Christopher Bilderbeck.Later, he amassed substantial wealth and acquired a lot of property, bothmovable and immovable. De Monte was a man of great religious faith and heconstituted various religious, pious and charitable establishments and Trusts.De Monte left a Last Will and Testament dated 19th July, 1820, andsubsequently, a CODICIL to the Will was signed and sealed on 25th April, 1821,thereby he bequeathed vast extent of properties in favour of "John De MonteTrust", which is named after him. The said Great man's noble thought andphilanthropic attitude was to render services to the needy. The said Will wasalso probated by the Supreme Court of Judicature at Madras on 28th September,1827.

5. The properties of the Trust have been managed by Madras-MylaporeArch Diocese. The appellants herein made allegations against the respondentsthat the properties of the Trust were being mismanaged in violation of theinstructions of the testator and a substantial extent of immovable propertieswere sold. One of the properties of the Trust is comprised in R.S.No.3923 ofMylapore Village of a total extent of 257 grounds and 81 sq.ft., consisting ofbuildings, which is commonly known as Bens Garden, which was proposed to beleased for long term to the seventh respondent, without proper advertisementor notice to the general public. The second respondent filed O.P.before theoriginal side of this Court, seeking permission for long term lease to begiven to the seventh respondent, which was also objected to by the appellantsherein. The appellants felt that it was proper to file a suit under Section92 of C.P.C., as this Court is the custodian of religious and charitabletrusts, for removing the trustees, rendition of accounts and recovery of theproperties alienated and to constitute a committee to manage the properties inthe hands of the trust.

6. Leave was granted to the applicants on 27.02.2002, by the OriginalSide of this Court, to file a suit under Section 92 of C.P.C. The Trust notwas arrayed as a party in the suit, hence they filed an application to impleadthe Trust as one of the defendants. The respondents also filed an applicationto revoke the leave.

7. The learned single Judge, after hearing both sides, revoked theleave granted and also dismissed the applications for impleading, on theground that though the appellants are respectful persons of the locality andnot the persons interested in the Trust, the averment of mismanagement of the Trust properties was also not accepted and implead application cannot beallowed to cure the defect.

8. Learned Senior Counsel Mr.Sriram Panchu, appearing for the appellants, has submitted that the first appellant is a retired IAS Officer,having held offices of Secretary to Government of India, North EasternCouncil, Shillong; a resident of Anna Nagar, Chennai; a Member of severalChurches, devoted to training of girls from slum areas and one of the membersof the Property Committee of De Monte Trust till 20 00; the second appellantis a Doctor of Science, having served for several decades of the IndianInstitute of Technology, Kharagpur and Madras, associated with ArchdiocesanPastoral Council and Office of the Superintendent of Roman Catholic Schools,Parish Council Member and Secretary, Finance Committee etc.; the thirdappellant is a retired Corporate Head of Training Division, HindustanPetroleum Corporation Ltd., having been involved in several activities ofArchdiocese of Madras-Mylapore, and a long term office bearer of the Societyof St. Vincent De Paul- a world wide charitable organisation and aconstituent of the Catholic Church. The learned Senior Counsel has alsosubmitted that the first appellant tendered his resignation from theArchdiocese Property Committee on 21.03.2000, since the respondents proposedto alienate Bens Garden property; that the appellants have made severalrepresentations against the mismanagement of the Trust properties by thesecond respondent to the other respondents, but no tangible action was taken.The appellants are persons interested in the Trust; the respondents have actedcontrary to the object of the testator; that the application for impleadingought to have been allowed and the application for revocation of leave oughtto have been dismissed; that the learned single Judge erred in passing orderscontra and prayed for allowing the suit.

9. In support of his argument, the learned Senior Counsel relied uponthe following judgments

i) (Anjaneya Sastri v. Kothandapani Chettiar and others) A.I.R.1936 MADRAS 449, wherein the Hon'ble Supreme Court held as under :

"....Again, it is true that S.92 is in a sense an enabling section in that itconfers on two or more members of the public a right to seek relief withoutany proof of special damage. But once the Court is moved, the scope of itsenquiry must be determined in the light of what is germane to the variousmatters indicated in S.92 and not by reference to the right of the plaintiffsto particular reliefs."

In this case, the Division Bench of this Court held that once theCourt is moved under Section 92 CPC, the scope of its enquiry must bedetermined in the light of what is germane to the various matters indicatedand not by reference to the right of the plaintiffs to particular reliefs."

ii) (Swami Parmatmanand Saraswati and another v. Ramji Tripathiand another) AIR 1974 SUPREME COURT 2141, wherein the Apex Court held thus :

"10. A suit under Section 92 is a suit of a special nature which presupposesthe existence of a public trust of a religious or charitable character. Sucha suit can proceed only on the allegation that there was a breach of suchtrust or that the direction of the Court is necessary for the administrationof the trust and the plaintiff must pray for one or more of the reliefs thatare mentioned in the section. It is, therefore, clear that if the allegationof breach of trust is not substantiated or that the plaintiff had not made outa 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 allthe other ingredients of a suit under Section 92 are made out, if it is clearthat the plaintiffs are not suing to vindicate the right of the public but areseeking a declaration of their individual or personal rights or the individualor personal rights of any other person or persons in whom they are interested,then the suit would be outside the scope of Section 92....It is not every suitclaiming the reliefs specified in the section that can be brought under thesection but only the suits which, besides claiming any of the reliefs, arebrought by individuals as representatives of the public for vindication ofpublic rights, and in deciding whether a suit falls within Section 92 theCourt must go beyond the reliefs and have regard to the capacity in which theplaintiffs are suing and to the purpose for which the suit was brought. Thisis the reason why trustees of public trust of a religious nature are precludedfrom suing under the section to vindicate their individual or personalrights..."

In this case, the Honourable Supreme Court held that the allegationsin the plaint be looked into in the first instance to see whether the suitfalls within the ambit of Section 92 CPC. If after evidence is taken, it isfound that breach of trust alleged has not been made out, the suit must bedismissed. It is further held that the plaintiffs must sue to vindicate theright of the public but not for their individual or personal rights.

iii) (Kumudavalli and another v. P.N.Purushotham) AIR 1978 MADRAS 20

5, wherein the Supreme Court held thus :

"The only substantial question which arises for consideration in this appealis whether the suit as framed is maintainable. S.92 C.P.C., which operates asa shield against the mismanagement of public trust whether charitable,religious or otherwise, is as far as possible exhaustive so as to affordprotection for the due and proper maintenance, upkeep and processing of publictrusts and to guard as against mismanagement, misappropriation and wildindulgence on the part of those who are for the time being enjoined toadminister such trusts. The infringement of private rights is undoubtedlyoutside the scope of enquiry under the Section.... A resident of the localitywho has some nexus or connection with the trust in the sense that he hasinterest in its well-being and prosperity, can, under certain circumstances,be taken to be a person having an interest in the trust.... In the case of apublic school such presumption could also be raised if he is an old student ofthe school, which necessarily involves a connection with it and if he is alsoa resident of the locality in which the school is situate he is doublyqualified to lay an action along with another under S.92 C.P.C. What is to beprimarily established is that the suit relates to a trust created for a publicpurpose (2) it should contain allegations against the person-in-breach, such as breach of trust, misappropriation or mismanagement and (3) the necessity inthe particular circumstance of a given case for administration of the trust bya body other than the body in management...."

In this case, a learned single Judge of this Court held that theremote relationship of a person with the founder of the Trust is notsufficient to maintain the suit. The meaning of expression 'having aninterest' cannot be held to be illusory or hypothetical.

iv) (Chenchu Rami Reddy and another v. The Government of AndhraPradesh and others) AIR 1986 SUPREME COURT 1158, therein the Apex Court heldas under :

"6. We cannot conclude without observing that property of such institutionsor endowments must be jealously protected. It must be protected for a largesegment of the community has beneficial interest in it (that is the raisond'etre of the Act itself). The authorities exercising the powers under theAct must not only be most alert and vigilant in such matters but also showawareness of the ways of the present day world as also the ugly realities ofthe world of today. They cannot afford to take things at their face value ormake a less than the closest-and-best-attention approach to guard again allpitfalls. The approving authority must be aware that in such matters thetrustees or persons authorised to sell by private negotiations, can, in agiven case, enter into a secret or invisible underhand deal or understandingwith the purchasers at the cost of the concerned institution...."

In this case, the Apex Court deprecated the action of the Governmentfor sale of land belonging to charitable endowment by private negotiationinstead of public action. It is further held that the Court must fix reserveprice after ascertaining the market value for the sake of safeguarding theinterest of the endowment.

v) (R.M.Narayana Chettiar and another v. N.Lakshmanan Chettiar and others) AIR 1991 SUPREME COURT 221 wherein it is held by the Supreme Courtas follows :

"17... Such a construction of the provisions of S.92 of the Code would renderit difficult for the beneficiaries of a public trust to obtain urgent interimorders from the Court even though the circumstances might warrant such reliefbeing granted. Keeping in mind these considerations, in our opinion,although, as a rule of caution, Court should normally give notice to thedefendants before granting leave under the said section to institute a suit,the Court is not bound to do so. If a suit is instituted on the basis of suchleave, granted without notice to the defendants, the suit would not thereby berendered bad in law or non-maintainable. The grant of leave cannot beregarded as defeating or even seriously prejudicing any right of the proposeddefendants because it is always open to them to file an application forrevocation of the leave which can be considered on merits and according tolaw."

In this case, it was held by the Supreme Court that after a suit isinstituted on the basis of leave granted without notice to the defendants, thesuit would not thereby be rendered as bad in Law or nonmaintainable sincegrant of leave cannot be regarded as defeating or even seriously prejudicingany right of the proposed defendants because it is always open to them to filean application for revocation.

vi) (R.N. Selvam Mudaliar and others Vs. P.A. Raju Mudaliar and another) 1952 Volume II MLJ Page No. 653. In this case, a suit under Section92 CPC has been filed by certain persons interested in a Church for removal ofthe existing trustees, sanction was obtained from the Advocate General, butagain certain others had to be added as parties and the further sanction foradding parties was also obtained from the Advocate General and in anapplication for adding as parties the Judge in Chambers ordered for thenecessary addition. The Division Bench held that the order of the Judge inChambers allowing addition of parties was not a judgment within the meaning ofClause 15 of Letters Patent and hence not appellable.

vii) (C.R. Neelakantan and another Vs. G. Bakthavatsalam) 1967MLJ Volume I Page 29. In this case, a suit has been properly instituted underSection 92 CPC after obtaining sanction of the Advocate General. It was heldthat any amendment sought for in the suit subsequently for adding of parties,which is merely formal and does not alter the nature of the suit, furthersanction of the Advocate General is not necessary.

10. Mr.T.V.Ramanujam, learned Senior Counsel appearing for

respondents 2,3 and 8, has submitted that the second respondent has filedO.P.Nos.219 and 220 of 2002, for leasing the property on a long term lease,the subject of which is pending before the Original Side of this Court; thesuit was maintainable neither in law nor on facts; there is no mismanagementof trust; the appellants are not the parties interested, to file the suitunder Section 92 of C.P.C.; the appellants are not acting bonafidely; the suitwas filed with an intention to restrain the respondents from leasing out theproperty known as Bens Garden, situate at Chamiers Road, Chennai-28; theplaint does not contain any allegation of mismanagement that the firstrespondent was a member of the Property Committee and he is aware that thedecision was taken only after consultation with the Property Committee; thatan advertisement was made in Indian Express on 01.09.1996, calling for projectmanagement consultants and after going through the offers the committeeshortlisted 12 firms and called upon them to present their proposal; out of 12firms, only six firms responded; thereafter, meetings were held on 08.03.1997,29.04.1997, 11.06.1997, 26.06.1997 and 12.0 7.1997, which did not bring anyfruitful results; thereafter, a special meeting was held on 18.12.1998 forfurther advertisement, which also not did not produce any valid response; theproperty was lying idle since 1994 and the maintenance cost was Rs.27,000/-per month; hence, the same was leased out to the seventh respondent for amonthly rent of Rs.60,000/- for a period of 11 months on 04.03.2002.

11. The learned Senior Counsel also submitted that the first appellant resigned from the Property Committee, since his view has not beenaccepted by the majority; hence, the first respondent cannot be termed as the

person interested, within the meaning of Section 92 of C.P. C.; some portionof the property was sold after obtaining permission of the Court; some of theproperties were leased out for a long term, that too, with the permission ofthe Court; the appellants suppressed the above said facts and attempted toindirectly criticise the order; no specific averment has been made in respectof mismanagement; the successive Archbishops have managed the property for thepast 50 years; no specific allegation is made against any of the Archbishops;the appellants were not clear as to whether the property belongs to the DeMonte Trust or Archdiocese; the Archdiocese of Madras-Mylapore is a registeredsociety and the properties of John De Monte Trust cannot be merged withArchdiocese; the averment relating to rendition of accounts to the Archbishopof Goa is also untenable; this respondent has taken all precautions inprocessing the lease of Bens Garden property to the seventh respondent;assuming some of the allegations of mismanagement are only against Archdioceseand not against the Trust, the seventh respondent has engaged in runningvarious institutions to satisfy the requirement of the desire of the testator,as contemplated in the Will; 390 grounds has been leased out to FranciscanMissionaries of Mary, who run the Women's College "STELLA MARIS" at CathedralRoad for a nominal rent of Rs.20,000/- per year; the property sold to Parryand Company was as per the permission granted by this Court; all thetransactions are transparent and also in consonance to the wishes of Sir JohnDe Monte; no grounds have been made out for framing scheme to manage theaffairs of the trust; the appellants attempted to ventilate their personalgrievances; the averments are vague and devoid of any merits; the appellantsdeliberately failed to array the trust as a respondent; hence, leave grantedoriginally is not valid; the documents enclosed by the appellants do not makeout a prima facie case of breach of trust; even the resignation lettertendered by the first appellant does not whisper any mismanagement or breachof trust; the first appellant was Property Committee Member of the Church andnot to the trust; the role that he played as a member of the PropertyCommittee of the trust does not entitle him to satisfy the words 'interestedperson' referred to under Section 92 of C.P.C. and that the learned singleJudge rightly revoked the leave granted and dismissed the applications forimpleading and, accordingly, prayed for dismissal of the appeals.

12. Mr.M.K.Kabir, learned counsel appearing for the respondents 1,4,5and 6 also submitted his arguments on the same lines, as advanced by thelearned Senior Counsel for the respondents 2,3 and 8.

13. Mr.Kabir relied upon the below mentioned decisions in supportof his case:-

i) (T.R.Ramachandra Iyer and another v. P.A.Parameswaran Munbuand others) AIR 1919 MADRAS 384 wherein it was held thus; "...The case of Jan Ali v. Ram Nath Mundul (1982) 8 Cal.32 was a leadingdecision of the former class. It ruled that worshippers or persons accustomedto say their prayers in a mosque were not within the purview of S.539 aspersons having a direct interest in the foundation. This ruling was followedby this High Court in Narasimha v. Ayyan Chetti (1989) 12 Mad 157. The learned Judges here in fact went further, holding that even the fact of theplaintiffs being managers of the temple in suit did not being them within theprovisions of S.539.

...Apart from authority, appellant relied mainly relied on the

enumeration of alleged crucial instances, as admitting only of a decisionconsistent with his claim. But he did not show how any principle could bededuced from them and so far as they could be tested with reference toconvenience, the result was against him, since apart from consideration ofbona fides, the possession of a mere right to worship affords no security forthe plaintiffs' ability to propose a suitable scheme or later to see to itsworking. On the subject matter and language of the section it was suggestedthat the interest entitling to sue should be defined liberally to include suchcases as appellant's, because the necessity for the consent of theAdvocate-General or Collector will afford a corrective, where one is required.But that consent is merely a condition precedent to the institution of thesuit and cannot affect the responsibility of the Court for the decision as tothe plaintiffs' qualification. On the other hand, no good reason has beenshown against the interpretation of the word "interest" in the section in themanner in which it is ordinarily interpreted in other legal connexions and inwhich I shall interpret it, as an interest which is substantial and notsentimental or remote. This conclusion is consistent with the only casescited, in which a merely potential right to claim the benefits of the trustwas directly in question, Ludlow Corporation v. Greenhouse ((1827) 1 Bligh 17= 4 E.R.780) and Bedford Charity, In re ((1819) 2 Swans. 470=19 R.R.107, theformer insisting on proof of a 'clear' interest, whilst the latter negativedthe interest in a charity for the poor of one place alleged by persons, whowere wealthy and lived in another.

...For they do not arise on the statement of appellant's position,which has been made. It involves that his interest is based on a merepossibility and is too remote to be substantial: and therefore howeverlaudable his motives or those of the society, in which he holds office, hisright to sue has not been established."

In this case, a Division Bench of this Court held that the right to worship in temple is not such an interest as will give worshippers right tosue under Section 92 and the interest, which is required of a person, wishingto sue under Section 92 must be substantial and not sentimental or a remoteinterest.

ii) (Mahant Harnam Singh v. Gurdial Singh and another) AIR 1967SUPREME COURT 1415 wherein it was held thus:- "(6) As we have indicated earlier, in the plaint the plaintiffs claimedinterest in the trust property in their capacity of representatives of theowners of the land situated at village Jhandawala and of residents of villageJhandawala. The findings of fact recorded show that the land, which wasdonated to this institution, was given by the inferior owners of this villageout of their joint land. The plaintiffs respondents did show that they wereLambardars in the village but no attempt has been made at any state to provethat any of the two plaintiffs was an inferior owner of any land situated inthis village, or that he was a descendant or a successor-in-interest of any of

the inferior owners who donated the land to this institution in the year 1904.The mere capacity as Lambardars does n ot entitle the plaintiffs respondentsto claim that they are representatives of the inferior owners of the land whodonated the land to this institution.... Mere residence in a village wherefree kitchen is being run for providing food to visitors does not create any interest in the residents of the village of such a nature as to claim that theycan institute a suit for the removal of the Mahant. The nature of theinterest that a person must have in order to entitle him to institute a suitunder S.92 C.P.C. was first examined in detail by the Madras High Court..."

In this case, a suit was filed against the institution, which is running free kitchen, serving free food to visitors by the residents of thevillage, where such food is served. The Hon'ble Supreme Court held that theycannot be called as interested persons and mere residence in a village doesnot create any interest.

iii) (C.Kalahasti and other v. R.Sukhantharaj and others) 88MADRAS LAW WEEKLY 577 wherein it was held thus:- "...Under S.539 c.P.C.1888, the expression 'persons having direct interest tothe trust' was used. But in S.92 C.P.C.1908, we find the phraseology 'havingan interest in the trust'. This change in the phraseology may not, however,make much difference to the true import to the word 'interest' in respect ofthe trust. All that it, in our opinion, means is that the persons figuring asplaintiffs in a suit under S.92 must have an interest in the trust, that is tosay, an interest special or particular as distinct from the generality of theinterest, which the public may have in the trust.... When a question ofmaintainability of the suit by them was raised, one of them who had claimed tohave worship in the temple relied on his right as a Hindu to worship in thetemple as entitling him to institute the suit. The majority held that though,as a Hindu, he might have the right to worship in the temple, he had not, onthat ground alone, the interest required by S.92 of the Code, to maintain thesuit. It is obvious from this decision that the general interest a person, asa Hindu, may have in a temple in that he might possibly worship in the templewould not by itself be sufficient to satisfy the requisite that he must be aperson who has an interest in the trust. In other words, something more thanthe generality of interest, which he had, should be established as a kind ofspecial factor to establish interest as is required by S.92....The whole object of S.92 is to prevent people from interfering, byvirtue of the Section, with the administration of charitable trusts merely inthe interest of others and without any real interest of their own."

In this case, a Division Bench of this Court held that the wholeobject of Section 92 is to prevent persons from interfering, by virtue of theSection, with the administration of charitable trusts merely in the interestof others and without any real interest of their own. The person filing asuit must stand on the special relationship with the trust as distinct fromthe rest of the community in respect of the suit trust, so that he may have aparticular direct relationship with the institution and to hold that anymember of a public who may have a distinct or indirect connection orrelationship with the institution, is a person having interest in the trust,

iv) (P.Sivagurunatha Pillai and another v. P.Mani Pillai (died)

and others) AIR 1984 MADRAS 328 wherein it is held thus:- "9...Thus, though the appellants have made a claim in the plaint that the suithad been instituted in a representative capacity for the benefit of the publicat large, even the evidence of P.W.1 clearly establishes that he and his son,who is also not a resident of the place, alone are interested in fighting outthe suit owing to personal animosity and that the public of Pandanallur andKeelamandur villages do not support them.... That the appellants might havebelonged to the family entitled to the hereditary trusteeship of SriPasupatheeswarar temple would not clothe the appellants with interest of sucha nature as to enable them to maintain a suit under S.92 C.P.C. for accordingto the case of the appellants, the original endowment was not for the purposeof performing any Kattalai in the temple and the appellants had notestablished...

10... We are of the view that mere residence of the first appellantin the village would not enable the first appellant to claim that he is aperson interested in the affairs of the choultry and its properties and assuch entitled to maintain the action under S.92 C.P.C. We may briefly referto some of the decisions to which our attention in this connection was drawnby counsel on both sides. The decision in chotalal Lakshmiaram v. ManoharGanesh Tambekar (1899) 26 Ind App 19 9. relied on by the learned counsel forthe appellants does not, in our opinion, lay down that mere residence in aplace would suffice to enable a person as a person interested to maintain thesuit under S.92 C.P.C. G.Sanyasayya v. Muthemma, AIR 1919 Mad 943, was acase where the suit under S.92 C.P.C. was brought by persons who areresidents of the locality in which the choultry was situated, but also membersof the community for whose benefit the charity was founded and under thosecircumstances, this court held ;that they had sufficient interest to maintainthe suit under S.92 C.P.C. It has to be remembered that mere residence alonewas not considered to be sufficient, but in addition to that, the plaintiffswho instituted the suit were also members of the community for whose benefitthe choultry was built. that would suffice to render the decision inG.Sanyasayya v. Muthemma AIR 1919 Mad 943 inapplicable to this case.N.Surayanarayana v. Lakshminarasimha, AIR 1926 Mad 267 (269) laid down thatpersons belonging to neighbouring villages who attend the temple on importantoccasions and also celebrate the marriages at the temple are persons having aninterest in the temple within the meaning of S.92 C.P.C.... However, inHarnam Singh v. Curdial Singh, AIR 1967 SC 1415 1967-2 SCR 739, the SupremeCourt, while considering the question of the nature of the interest under S.92C.P.C. to sustain a suit thereunder, pointed out that mere residence in avillage where free kitchen is being run for providing food to visitors doesnot create any interest in the residents of the village of such a nature as toclaim that they can institute a suit for removal of the Mahant..."

In this case also, a Division Bench of this Court held that theinterest for filing a suit under Section 92 of C.P.C. should be real,substantive and excessive interest, though it need not be a direct one and thefact that the plaintiff might have belonged to the family entitled to

hereditary trustship of the temple would not clothe the plaintiff with theinterest of such nature as to enable him to maintain a suit under Section 92.

v) (Swami Parmatmanand Saraswati and another v. Ramji Tripathiand another) AIR 1974 SUPREME COURT 2141 wherein it was held by the HonourableSupreme Court as follows:- "10. A suit under Section 92 is a suit of a special nature which presupposesthe existence of a public trust of a religious or charitable character. Sucha suit can proceed only on the allegation that there was a breach of suchtrust or that the direction of the Court is necessary for the administrationof the trust and the plaintiff must pray for one or more of the reliefs thatare mentioned in the section. It is, therefore, clear that if the allegationof breach of trust is not substantiated or that the plaintiff had not made outa 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 allthe other ingredients of a suit under Section 92 are made out, if it is clearthat the plaintiffs are not suing to vindicate the right of the public...

11... There is no reason to think that whenever a suit is brought bytwo or more persons under Section 92, the suit is to vindicate the right ofthe public. As we said, it is the object or the purpose of the suit and notthe reliefs that should decide whether it is one for vindicating the right ofthe public or the individual right of the plaintiffs or third persons."

In this case, the Hon'ble Supreme Court held that a suit under Section92 of C.P.C. is a suit of a special nature, which presupposes whichpresupposes the existence of a public trust of a religious or charitablecharacter. Such a suit can proceed only on the allegation that there was abreach of such trust or that the direction of the Court is necessary for theadministration of the trust and the plaintiff must pray for one or more of thereliefs that are mentioned in the section and if the allegation of breach oftrust is not substantiated or that the plaintiff had not made out a case forany direction by the Court for proper administration of the trust, the veryfoundation of a suit under the section would fail. The Hon'ble Supreme Courtfurther held in that suit that when the plaintiffs were not suing to vindicatethe right of the public, but were seeking a declaration of their individual orpersonal right or the individual or personal rights of any other person orpersons in whom they are interested, then the suit would be decided on thescope of Section 92.

14. Mr. T.R. Rajagopalan, learned Senior Counsel for the seventhrespondent, has submitted that the trust has invited offer from public tolease out Bens Garden property; out of 15 persons, seventh respondent wasselected, as his offer was best; the trust has originally incurred Rs.27,000/-per month towards expenses of watch and ward; in order to avoid unnecessaryexpenses for the idle property, they have taken a decision to lease it outtemporarily for 11 months to the seventh respondent at the rate of Rs.60,000/-per month; in respect of long term lease, the seventh respondent has offeredRs.37.50 crores; the trust has filed necessary original petitions seekingpermission from this Court, where also the appellants have filed their

objections and delayed the matter; the intention of the appellants is not tolease out the property to the seventh respondent herein and nothing more; thefirst appellant was in the Property Committee from the year 199 7 to 2000, butno valid service has been rendered by him; the appellants have not made out acase for breach of trust and the appellants are neither the 'partiesinterested' nor the bonafide persons and that in order to ventilate personalanimosity against the seventh respondent, the suit has been filed and,accordingly, he prayed for dismissal of the appeals.

15. The learned single Judge framed the below mentioned issues:- i) Whether the leave granted to the plaintiffs in Application NO.

56 7 of 2002 dated 27-02-2002 is liable to be revoked?ii) Whether the Trust can be impleaded as 10th Defendant in thesuit after getting leave to sue?

iii) To what other relief the parties are entitled to?

16. The learned single Judge held that the appellants herein may be respectable persons but are not persons interested in the Trust and revokedthe leave granted earlier. The learned single Judge rejected the allegationof mismanagement on the ground that the respondents have already filed O.P.seeking permission of the Court as to whether the property can be leased outto the 7th respondent or not and as such the said averment is untenable. Thelearned single Judge also found that exparte leave was granted only againstthe other defendants and not against the Trust, which cannot be cured byimpleading the Trust later.

17. Philanthropist Sir John De Monte amazed substantial wealth and acquired lot of property, both movable and immovable. He has executed a willdated 19th July 1820 and subsequently executed a Codicil dated 25th April 1821thereby bequeathed vast extent of the property in favour of John De MonteTrust, which is named after him. The Trust owns other item of properties aswell. As far this appeal is concerned, it covers the following propertiesalone.

"The property bearing RS No.3923 of Mylapore Village to a total extentof 257 grounds and 81 sq.ft., containing the following houses No.1, 3, 4, BoatClub Road, No.72, 73, 74, 75, Chamiers Road, all with superstructures, trees,plants and vacant land therein which is known as Bens Garden."

18. The trustees have already filed O.P. Nos. 219 and 220 of 2002 under Section 7 of Charitable and Religious Trust Act seeking permissionof the original side of this Court to lease out 100 grounds and another 50grounds for 50 years for a lease amount of Rs.25 Crores and Rs.12.50 Croresrespectively. It is also relevant to mention that the term of the lease shallbe at the first instance for a period of 10 years with renewal for four likeperiod. A draft lease deed was also filed along with the said O.P.s. Theappellants herein have also filed their objections in the said O.P.s.

19. Section 92 CPC authorises either the Advocate General or two or more persons having an interest in the Trust to file a suit for claiming

one or more of the reliefs specified in clauses a to h of Subsection 1 ofSec.92. To invoke Section 92, four conditions are to be satisfied namely (i)The trust is created for the purpose of public or charitable or generousnature (ii) there was a breach of Trust or a direction from Court is necessaryfor the administration of such Trust (iii) The relief claimed in the suit isone or other reliefs enumerated therein and (iv) The suit must be arepresentative one on behalf of public and not by an individual for their owninterest.

20. The main purpose of Section 92 is to give protection to apublic Trust of a charitable or religious nature from being subjected toharassment by suits being filed against them. So, it provides that suits ofthis description can be filed by an Advocate General or two or more personshaving interest in Trust with leave of the Court. Maintainability of suitunder Section 92 CPC depends upon the allegations in the plaint. In thiscase, there is no dispute that the Trust is a public Charitable ReligiousTrust. The appellants herein have alleged mismanagement and the respondentshave alleged that the appellants are not persons interested.

21. It is alleged by the first appellant that he was a member ofthe Trust Property committee. But the respondents allege that the firstappellant was the member of Church Property Committee. The first appellanthas resigned from the property committee in the year 2000. The other twoappellants held various offices and attached to service organisation.

22. Mr. Sriram Panchu, learned Senior counsel appearing for theappellants vociferously argued that if the appellants are not personsinterested, who else then. It is also argued that the respondents areattempting to lease out the property for a longer period like 50 years and 99years which amount to sale of the property and the same is contrary to thewishes of the testator, who has categorically mentioned in his will that theproperty should not be sold. It is further added that some other property ofthe Trust was leased out for 99 years for a paltry amount, some of theproperties were sold to Parry & Co., Though some of the institutionsapproached by offering fancy amount to take Bens Garden property for 99 years,t he 2nd respondent had chosen to lease it out only to the 7th respondent, whois an expolitician. In case the proposed lease to the 7th respondent isallowed, it will be against the wishes of the testator, however, the leasegranted to run Stella Mary's College cannot be equated to the proposed leaseto the 7th respondent.

23. Per Contra, Mr. T.V. Ramanujam, learned senior counselappearing for the respondents 2, 3 and 8 submitted that the 1st respondent wasa member of Church committee from 1997 till 2000. Though majority of theMembers of the Church committee extended their cooperation to lease out theproperty of the Trust, the 1st respondent alone refused to extend hisco-operation, besides opposed for leasing out the property to 7th respondentalone without any valid reasons. In support of his contentions, the learnedSenior counsel relied on the resignation letter dated 21-03-2000 of the firstappellant herein to show that the first respondent has not whispered anythingabout the mismanagement,on the contrary, he praised the 2nd respondent. It is

further submitted by the learned Senior counsel quoting the letter dated19-10-2 000 of the first appellant that the first appellant and his 'group'were very happy and the 2nd respondent promised them that the entire processwould be transparent. It is also quoted from the said letter - "firstappellant and his 'group' have unanimously resolved to request the firstappellant and one another Chacko to write to your grace on these lines and torequest you to personally intervene in this matter and to conduct a completeand independent review of how the properties of the Church in this diocese arebeing managed and what needs to be done to achieve greater efficiency andeffectiveness in order to truly fulfil the mission of Christ's church onearth" to say that the allegation of mismanagement was not found in the letterand the same is nothing but an after-thought. It is also seen from the letterthat the first appellant and V.J. Chacko have signed it. The other letterswritten by first appellant to 2nd respondent herein are dated 2 9-08-1997,resignation letter dated 23-02-2000, letter dated 31-03-20 00, 10-10-2000,11-10-2000, 19-10-2000, 24-01-2001, 29-01-2001 and 09 -02-2001. All theseletters do not substantiate the averment of mismanagement levelled against the2nd respondent.

24. The 2nd respondent has filed the O.P. in February 2001

seeking permission of the original side of this Court. The first appellanthas chosen to file caveat and objections immediately; but waited for one yearto file the present suit after obtaining leave on 27-02-2002. The said factwas brought to the notice of this Court by Mr. T.V. Ramanujam, learnedSenior counsel to justify that the appellants herein, without any validreasons have prevented the Trust from carrying out its objectives.

25. It is seen that long term lease and sale of property to theManagement of Stella Mary's College and Parry & Co., respectively were madewith the permission of the Court, but the appellants herein have alleged as ifthe 2nd respondent or his predecessor have unilaterally leased out or sold theproperty. No valid averments of mismanagement or mal-administration has beenmade out in the plaint.

26. A suit under Section 92 CPC is primarily against a Trust and

can only be instituted on the ground there was breach of trust and thedirections of the Court is deemed necessary for the administration of theTrust. The plaint must aver one or other grounds and it is such allegationthat gives the Court jurisdiction under Section 92 CPC. In this case, we donot find any such allegation of mismanagement. It is seen from the prayer ofthe suit that a luxurious relief like (i) rendition of account by theerstwhile and present trustees till the date of decree - but withoutmentioning the period (ii) directing recovery of all monies dues to the trust- without mentioning the parties (iii) directing identification of all thetrust properties (iv) directing recovery of all properties belonging to theTrust currently not in the possession of the Trust, has been sought onvexatious allegations. It is also necessary to mention that the sole Trusteeof the Demonte Trust is Arch Bishop Madras-Mylapore and his successors.Successive Arch Bishops have managed the property of the Trust during theirtenure, but appellants have not specified any of them. Similarly, thevexatious prayer for rendition of account by erstwhile and present trustees 'till the date of decree' without mentioning the date of commencement of theperiod has been made. The use of the word ' instituted' in Section 92 makesit incumbent on the Court to see what the prayers were in the plaint at thedate when the suit was instituted, in order to satisfy itself whether Section92 has been complied with. After seeing the plaint, one can easily say thatthe suit has been filed only to harass the Trust.

27. The words 'persons interested" is incorporated with the object of preventing the people interfering with the administration of charitableTrust without any real interest. The interest required must be a clear andsubstantive interest in the particular trust, but not merely a remote,fictitious or contingent one.

28. In the Judgment of this Court reported in (T.R.Ramachandra Iyer and another v. P.A.Parameswaran Munbu and others) AIR 1919 MADRAS 384cited supra reiterates that "the interest which required of a person wishingto sue under `Section 92 CPC must be a substantive and not a sentimental orremote interest".

In the decision reported in (Mahant Harnam Singh v. Gurdial Singh andanother) AIR 1967 SUPREME COURT 1415 their Lordships referred to AIR 1919Madras 384 to come to a conclusion that "Mere residence in a village where free kitchen is being run for providing food to visitors does not create anyinterest in the residents of the village of such a nature as to claim thatthey can institute a suit for the removal of the Mahant."

The Division Bench of this Court in the decision reported in (C.Kalahasti and other v. R.Sukhantharaj and others) 88 MADRAS LAW WEEKLY 577held that "All that majority of the full bench meant to say was the plaintiffsmust stand on a special relationship with the trust as distinct from the restof the community in respect of the suit trust, so that he may have aparticular direct relationship with the institution. To hold that any memberof the public, who may have a distinct or indirect connection or relationshipwith the institution, is a person having interest in the trust, would dilutethe requirement of Section 92."

In the decision reported in (P.Sivagurunatha Pillai and another v.P.Mani Pillai (died) and others) AIR 1984 MADRAS 328 Division Bench of thisCourt held that "interest for filing a suit for framing a scheme in respect ofa Choultry should be real, substantive and excessive interest, though it neednot be a direct one. A mere resident of the locality where the choultry issituate is not enough. Even the fact that the plaintiff might have belongedto the family entitled to the heriditary trusteeship of the temple would notclothe that the plaintiff is interested in such nature enabling him tomaintain a suit under Section 92 CPC."

In the decision reported in (Swami Parmatmanand Saraswati and anotherv. Ramji Tripathi and another) AIR 1974 SUPREME COURT 2141 the HonourableSupreme Court held that "a suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitablecharacter. Such a suit can proceed only on the allegation that there was abreach of such trust or that the direction of the Court is necessary for theadministration of the trust and the plaintiff must pray for one or more of thereliefs that are mentioned in the section. If the allegation of breach oftrust is not substantive or that the plaintiff had not made out a case for anydirection by the Court for proper administration of the trust, the veryfoundation of a suit under the section would fail: It is clear that theplaintiffs are not suing to vindicate the right of public but are seeking adeclaration of their individual or personal right or person in whom they areinterested, then the suit would be outside the scope of Section 92 CPC."

In the decision reported in AIR 1938 Madras 205 (Kumudavalli andanother v. P.N.Purushotham) AIR 1978 MADRAS 205, the Supreme Court held"Section 92 C.P.C., operates as a shield against the mismanagement of publictrust whether charitable, religious or otherwise, is as far as possibleexhaustive so as to afford protection for the due and proper maintenance,upkeep and processing of public trusts and to guard as against mismanagement,misappropriation and wild indulgence on the part of those who are for the timebeing enjoined to administer such trusts. The infringement of private rightsis undoubtedly outside the scope of enquiry under the Section."

29. From the above judgments, it is clear that interest of aperson has to be determined on the facts appearing on the relationship of theperson to the Trust, with reference to which the suit is brought. No doubt,each and every case has to be decided on the facts and circumstance. Oncareful perusal of the pleadings and documents placed before the learnedSingle judge, which were indeed placed before us also. Even though the firstappellant held office of the Member of Property Committee of the Trust/Church,it is not sufficient to satisfy the ingredients of Section 92 CPC. Thejudgment of the Honourable Supreme Court reported in AIR 1974 SC 2141 cautionsthat the suit should be to vindicate the right of the public and not the rightof an individual persons. Hence, we hold that the appellants are notinterested persons.

30. Leave must precede the institution of suit. Prior to granting

30. Leave must precede the institution of suit. Prior to granting leave, there can be no suit. Leave is essentially a matter of discretion.When trustees are able to satisfy the Court that there is no evidence tosupport the allegations or that evidence is not sufficient or the intention ofthe parties are not bonafide or that action is being initiated for selfishpersonal ends and not with the object of any public good, it is open to theCourt to revoke the leave. The court has to take an objective decision onconsideration of facts of each case. The court should go into the questionsof bonafide of plaintiffs and their capacity to represent the public and alsosee whether they are really interested in the Trust and are not those whosemotives are impure. After appearance, the defendants may ask for revocationof leave and where the plaintiffs have failed to prove that they have anyinterest in the Trust, exparte leave is liable to be revoked. The learnedsingle Judge taking into consideration of the facts and circumstance of thecase found that though the respondents are respectable persons in thelocality, they are not persons interested in the trust as contemplated under

31. There is no impediment in impleading the Trust as a partyafter leave has been obtained. In the decision reported (C.R. Neelakantanand another Vs. G. Bakthavatsalam) 1967 MLJ Volume I Page 29, a learnedsingle Judge of this Court held that adding the trust as a party is merely aformal and it does not alter the nature of the suit as such further leave isnot necessary. We concur with the said view.

32. Hence, the finding of the learned single Judge dismissing thepetition to implead is set aside, however, we confirm the order of the learnedsingle Judge revoking the leave. In view of the confirmation of the order ofrevocation of leave, the appellants herein do not get any remedy consequent tothe setting aside of the impugned order of dismissal of implead petition.However, it is made clear that the trial Court, while deciding the O.P. No.219 and 220 of 2002 need not take into consideration any of the observationsmade in these appeals and decide the petitions on their own merits.

In the result, O.S.A. No. 83 of 2003 is dismissed and O.S.A. No.129 of 2003 is allowed. No costs. Connected CMPs are closed.

rsh

Index : Yes