Supreme Court of India
GHAT TALAB KAULAN WALA versus BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR RAM NIWAS on 31 January 2020
SUPREME COURT REPORTS
[2020] 1 S.C.R.
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GHAT TALAB KAULAN WALA
v.
BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LRRAM NIWAS
(Civil Appeal No. 724 of 2020)
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JANUARY 31, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908:
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Cs. 92 – Applicability of – To a suit by a Trust – Suit by Trustfor mandatory injuction – Seeking direction against the defendant(sevadaar) to leave the management of the Mandir, building andother properties of the Trust – Trial Court declined to grantmandatory injuction to the defendant, but held that the plaintiffwas entitled to rendition of accounts – First appellate Court decreedDthe suit – During pendency of second appeal, due to death of originaldefendant impleadment of his representative – High Court held thatsuit was not maintainable as requirements of s. 92 was not compliedwith – Appeal to Supreme Court – Held: Section 92 contemplatessuit against a Trust – In the present case, the suit having been filedEby the Trust, the procedure prescribed under Section 92 would notbe applicable – The suit was maintainable and was rightly decreedby First Appellate Court – Trust and Charities.
Allowing the appeal, the Court
HELD : 1. Section 92 of CPC contemplates a suit against aFTrust either for removing any trustee; appointing new trustee;or vesting any property in a trustee etc. but the present suit itselfis by a Trust against a Sevadar, therefore, the procedureprescribed under Section 92 of CPC would not be applicable in asuit by a Trust. Section 92 of CPC confers right on a person inGcase of any alleged breach of any express or constructive trustcreated for a public purpose of a charitable or religious nature.Since the Trust itself was the plaintiff, the finding of the HighCourt is clearly erroneous and not sustainable. [Para 12][608-A-B]
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GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELASURTI DASS (D) BY LR RAM NIWAS
2. The fact is that the original defendant had been found tobe Sevadar as per statement (Ex.P/1) given in the previous suitfor permanent injunction. Therefore, legal representative of theoriginal defendant will not have a larger interest than what wasvested in the original defendant. The legal representative hasbeen found to be doing service to the Temple as a member ofpublic. The High Court has affirmed the finding that the legalrepresentative could offer his services but he has not provedthat he was appointed as Chela of the original defendant. Stillfurther, the decree for rendition of accounts could be executedonly against the deceased original defendant, therefore, after hisdemise, such decree cannot be executed. Therefore, the suit ismaintainable and was rightly decreed by the First Appellate Court.[Paras 12 & 13] [608-C-D]
3. The apprehension of the respondent that the amount ofcompensation can be misused, is not tenable. The appellant is aregistered Society. The appellant as a registered Society hasstatutory obligations. Such apprehension is misconceived andbeyond the scope of the present suit and the appeal arising out ofsuch proceedings. [Para 14] [608-E-F]
Bhagwan Dass and Others v. Jairam Dass AIR 1965P & H 260 – referred to.
Case Law Reference
AIR 1965 P & H 260referred toPara 5
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 724 of2020.
From the Judgment and Order dated 18.07.2016 of the High Courtof Punjab and Haryana at Chandigarh in Regular Second Appeal No.2263 of 1997.
V. N. Sinha, Sr. Adv., Puran Mal Saini, Ranbir Singh Yadav, PatiRaj Yadav, Ritesh Patil, Advs. for the Appellant.
Ashok Sharma Nabhewala, Devender Mohan Verma, Ms.Minakshi Vij, Advs. for the Respondent.
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604SUPREME COURT REPORTS
AThe Judgment of the Court was delivered by HEMANT GUPTA, J.
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1. The plaintiff is in appeal aggrieved against an order passed bythe High Court of Punjab and Haryana on 18[th] July, 2016 whereby thedecree of two courts in its favour were set aside for the reason thatBCharan Dass (PW-1) was not competent to file suit as it could notdemonstrate the nature of charities which the Trust had undertaken andthat such suit is not maintainable without complying with the requirementsof Section 92 of the Code of Civil Procedure, 1908[1]. The Court held asunder:C“20. For maintaining the suit qua public Trust, the leave of the C“20. For maintaining the suit qua public Trust, the leave of theCourt under Section 92 CPC is mandatory. Pleadings of theplaintiff are conspicuously silent about these facts. Secondly formaintaining the suit, plaintiff has to show that there was a completededication of the property in favour of the general public. Therehas to be evidence proving beyond pale of doubt that Trust is aDpublic Trust. Though no instruction in writing is required, to dedicateproperty for religious or charitable purposes. Only a clearunequivocal manifestation of intention to create a Trust and vestingthereof in the donor as a trustee is required. No such manifestationof intention to create Trust and trustee thereof have come forthEon record.”
2. The appellant had filed a suit for mandatory injunction directingthe defendant Baba Gopal Dass (since deceased) to vacate themanagement of Mandir, building and other property. The appellant hasalleged itself to be the owner of the suit property being managed by theFManager and Trustees. The defendant was said to be a Sevadar. Inthe said suit, the stand of the defendant was that the representatives ofthe plaintiff Manohar Lal and Charan Dass were never appointed asManagers or Trustees of the appellant and they fraudulently got theirnames entered in the revenue record. The stand of the defendant wasthat he did everything for the welfare of the Mandir and never soughtGinstructions from the plaintiff and they have no right to seek rendition ofaccounts from the defendant. On the pleadings of the parties, the learnedtrial court framed the following issues:
“1. Whether the plaintiff is entitled to the injunction prayed for?OPP.H1 for short, ‘Code’
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELASURTI DASS (D) BY LR RAM NIWAS [HEMANT GUPTA, J.]
2. Whether the plaintiff is owner of the suit property as alleged inpara No. 1 of the plaint? OPP.
3. Whether the plaintiff have no locus standi to file the suit? OPP.
4. Whether no cause of action has arisen to the plaintiff for filingthis suit? OPP.
5. Relief.”
3. On issue Nos. 1 and 2, the learned trial court held that thedefendant is Sevadar of plaintiff Trust and that the plaintiff does notwant to keep the defendant as he is not properly watching the interest ofthe Mandir and that he has not rendered the accounts of the income ofthe Temple. The Court also found that the defendant is not claimingownership of the property in question. The trial court considered thestatement made by the defendant in the previous suit for permanentinjunction filed by the plaintiff on 8[th] April, 1986 restraining the defendantfrom raising any construction in the shape of shops on the property inquestion. The Appellant examined Harban Singh (PW-3) an Advocateof the defendant in the previous suit, that the defendant admitted that thesuit property belongs to the plaintiff and the defendant is working only asa Sevadar. The statement (Ex.P/1) reads as under:
“I have instructions from the defendant that the suit propertybelongs to the trust i.e. the plaintiff, where I am working only as aSevadar. Whatever I will do, I will do for the welfare of the trustand any instructions given by the manager of the trust especiallyin regard to the construction of the shops I shall abide by in additionto the instructions pertaining to the manner in which shops are tobe constructed and rent thereof collected.”
4. After returning such finding, the trial court declined to grantmandatory injunction to the defendant to vacate the Mandir but held theplaintiff was entitled to rendition of accounts.
5. The plaintiff alone filed first appeal aggrieved against thejudgment passed by the learned trial court. The learned First AppellateCourt relied upon a judgment reported as Bhagwan Dass and others v.Jairam Dass[2], to hold that the Sevadar is liable to be removed whereSevadar asserts title hostile and fails to keep regular accounts.
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A6. The defendant filed second appeal before the High Courtaggrieved against the decree passed by the First Appellate Court. Duringthe pendency of the second appeal, Baba Gopal Dass died and one RamNiwas, claiming to be Chela of Baba Gopal Dass was ordered to beimpleaded to represent the estate. Such order was challenged by theappellant before this Court in Civil Appeal No. 9638 of 2003 wherein itBwas held that Ram Niwas had been impleaded to represent the defendantbut that will not clothe him to be successor in interest in the property andthat the status of deceased Baba Gopal Dass as well as Ram Niwashave to be independently considered as a preliminary issue in the secondappeal.
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7. In second appeal, the first substantial question of law wasframed at the time of admission of appeal whereas second substantialquestion of law was framed after the order passed by this Court. Thesame are reproduced hereunder:
“1. Whether the plaintiff Charan Dass could represent the TrustDknown as Ghat Talab Kaulan Wala which is also known as PrabhuWala and whether the suit filed by the Charan Dass is maintainable?
2. Whether status of the deceased Baba Gopal Dass as well asthat of Ram Niwas, when independently considered, would makethem Legal Representatives when Gopal Dass had mentionedEhimself to be ‘Sevadar’ and Ram Niwas as alleged Chela of BabaGopal Dass?”
8. In respect of the second substantial question of law, the HighCourt held that the defendant was only a Sevadar as admitted in hisstatement in the earlier suit and that Ram Niwas was impleaded as hisFlegal representative. He is only a member of public who could offer hisservices in the place of deceased Defendant. The Court held as under:
“25. …However, in case of public Trust every individual hasright to serve. Baba Gopal Dass was also serving in the Mandirirrespective of the Mandir as a public Trust property or privateGTrust property. There was nothing to inherit like services renderedby Baba Gopal Dass. Inheritance of services of Baba GopalDass was open to all. No special status can be conferred uponRam Niwas so far as inheritance of service/Sevadari is concerned.
26. In view of aforesaid, any person from public can offer serviceHto Mandir. Therefore, in view of first part of the order passed by GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELASURTI DASS (D) BY LR RAM NIWAS [HEMANT GUPTA, J.]
the Hon’ble Apex Court Ram Niwas was only impleaded for thepurposes of representation in the present appeal without meaninganything on merits i.e. rights of Baba Gopal Dass viz-a-viz suitproperty. The second part of the order in the context of decisionon the individual right of Ram Niwas is concerned, the same hasto be decided that Ram Niwas is none else than any person frompublic at large, who could offer his service in place of Baba GopalDass. There are no pleadings, nor any evidence on record toshow that Ram Niwas was ever appointed as Chela by Bhek orany other religious ceremonies were performed by competentauthority or by Sadhu Samaj for appointing him in place of BabaGopal Dass.”
9. Thus, the second substantial question of law was decided, asmentioned above, that Ram Niwas was impleaded for the purpose ofrepresentation of the deceased in the appeal. The High Court foundthat there was no evidence that Ram Niwas was ever appointed byChela or in any other manner but as any member of public, he wasoffering his services to the Temple.
10. While deciding first substantial question of law, the suit wasfound to be not maintainable. Learned counsel for the appellantvehemently argued that the High Court erred in law in finding that thesuit is not maintainable in view of Section 92 of the Code as such provisionis meant for invocation of jurisdiction against the Trust. Section 92 ofthe Code has no applicability in respect of a suit instituted by a Trust. Itis pointed out that the appellant has filed suit through the Manager andTrustee as a private Trust. However, during the pendency of theproceedings, the Trust has been registered as a Society on 29[th] June,2016 when Memorandum of Association of Ghat Talab Kaulan WalaPrabhu Lal Wala, Village Mundi Kharar, Tehsil Kharar, District S.A.S.Nagar was registered.
11. Learned counsel for the respondent argued that the appeal isfiled by one Devinder Gupta who has no concern with the appellant,therefore, appeal itself is filed by incompetent person. It is also arguedthat the appellant has been paid a sum of Rs.1,48,09,884/- on account ofacquisition of part of land whereas the respondent has apprehensionthat such amount will be misappropriated by the appellant.
12. We have heard learned counsel for the parties. We find thatthe order passed by the High Court in respect of first substantial question A
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Aof law is not sustainable. Section 92 of the Code contemplates a suitagainst a Trust either for removing any trustee; appointing new trustee;or vesting any property in a trustee etc. but the present suit itself is by aTrust against a Sevadar, therefore, the procedure prescribed underSection 92 of the Code would not be applicable in a suit by a Trust.Section 92 of the Code confers right on a person in case of any allegedBbreach of any express or constructive trust created for a public purposeof a charitable or religious nature. Since the Trust itself was the plaintiff,the finding of the High Court is clearly erroneous and not sustainable.The fact is that Baba Gopal Dass has been found to be Sevadar as perstatement (Ex.P/1) given in the previous suit for permanent injunction.CTherefore, Ram Niwas as legal representative of Baba Gopal Dass willnot have a larger interest than what was vested in the original defendant.Ram Niwas has been found to be doing service to the Temple as memberof public. The High Court has affirmed the finding that Ram Niwascould offer his services but he has not proved that he was appointed asChela of Baba Gopal Dass. Still further, the decree for rendition ofDaccounts could be executed only against the deceased Baba Gopal Dass,therefore, after his demise, such decree cannot be executed.
13. In view thereof, the finding of the High Court on first substantialquestion of law is set aside and the suit is found to be maintainable andwas rightly decreed by the First Appellate Court.E
14. We find that the apprehension of the respondent that the amountof compensation can be misused is not tenable. The appellant is aregistered Society. The appellant as a registered Society has statutoryobligations. We find that such apprehension is misconceived and beyondthe scope of the present suit and the appeal arising out of suchFproceedings.
15. Consequently, the present appeal is allowed. The order of theHigh Court in respect of first substantial question of law is set aside andthe suit is decreed.
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Kalpana K. Tripathy
Appeal allowed.
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