ASHOK KUMAR GUPTA & ANR. versus M/S SITALAXMI SAHUWALA MEDICAL TRUST AND OTHERS on 3 March 2020

[2020] 2 S.C.R. 983

ASHOK KUMAR GUPTA & ANR.

v.

M/S SITALAXMI SAHUWALA MEDICAL TRUST ANDOTHERS

(Civil Appeal No. 1917 of 2020)

MARCH 03, 2020

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Code of Civil Procedure, 1908 – s.92 – Suit filed by appellants-plaintiffs (husband and wife) who are Trustees of 1st defendantTrust, a Public Charitable Trust – Four trustees under the Deed ofTrust are both the plaintiffs and defendant nos.2 & 3 (parents of1st plaintiff and his brother-4th defendant) – Suit was filed forframing scheme for administration of the Trust – It was inter aliapleaded that 1st plaintiff is a qualified surgeon and the 4thdefendant who did not have any medical qualification/expertise torun the hospital and manage the Trust had been in control of theTrust and the objects of the Trust were not getting fulfilled; and thatthe plaintiffs were sought to be removed from the board of trustees– Along with the aforesaid Suit, plaintiffs also filed applicationseeking leave to institute the suit u/s.92, CPC – Leave grantedu/s.92 – Respondent no.2 sought revocation – Leave granted notrevoked – Respondents filed revision petition – Allowed – Held:Three conditions are required to be satisfied for invoking s.92 –Admittedly, the concerned Trust is created for public purposes ofcharitable nature – Also, plaint made out a case that the trust wasbeing run as a private family trust; its object was being ignored;and that there was necessity to frame a proper scheme for itsadministration through competent persons – Further, what wascomplained was that the appellants were removed from the board oftrustees and none of the present trustees are from medical profession– It is in that context that the principal relief prayed was for framingof a proper scheme of administration and appointing trusteesincluding the first plaintiff along with other trsutees from medicalprofession and from the public – Relief prayed for cannot be saidto be in the nature of vindicating personal rights of the first plaintiff– Aforesaid relief was prayed so that the Trust which was founded

983

A

B

CDEF

GH

Awith the object of making available medical and related services tothe general public could achieve its objectives through trustees whoare well qualified to undertake such responsibility – If in respect ofa trust which had set up a hospital, a request was made for framingof a proper scope of administration by appointing trustee frommedical profession and from public for proper administration ofBthe Trust, the matter would definitely fall within the scope of s.92 –View taken by High Court is set aside – Decision of District Courtrestored.

Allowing the appeal, the Court

Allowing the appeal, the Court

CHELD: 1.1 Three conditions are required to be satisfied inorder to invoke Section 92 of the Code and to maintain an actionunder said Section, namely, that the Trust in question is createdfor public purposes of a charitable or religious nature; there is abreach of trust or a direction of Court is necessary in theadministration of such a Trust; and the relief claimed is one orDother of the reliefs as enumerated in said Section. Consequently,if any of these three conditions is not satisfied, the matter wouldbe outside the scope of said Section 92. In the instant case, it isadmitted that the concerned Trust is created for public purposesof charitable nature. The matter on that front is beyond any doubt.EAs regards the second condition, paragraph 21 of the plaint makesout a case that a public charitable trust was being run as a privatefamily trust; that the object of the Trust was being ignored; andthat there was necessity to frame a proper scheme foradministration of the Trust through competent persons. Thesecond condition also stands satisfied. Insofar as the thirdFcondition is concerned, the reliefs prayed for are diverse whichinclude inter alia framing of a proper scheme of administration,for removing certain trustees and appointment of fresh trusteesfrom medical profession and from public and for other ancillaryreliefs. [Paras 13, 14][995 E-H; 996 A-D]G1.2 In the present matter, the appellant No.1-first plaintiff,as a qualified medical professional, was associated with the Trustand what is being complained is that the appellants have beenremoved from the board of trustees and none of the presenttrustees are from medical profession. It is in that context thatHthe principal relief prays for framing of a proper scheme of ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALAMEDICAL TRUST AND OTHERS

ABC

administration and for appointing trustees from medicalprofession and from the public for proper and effectiveadministration of the Trust. The expression “including the firstplaintiff” has to be understood in the context that the first plaintiff,as a qualified medical professional, was associated with the Trustright since the inception but now stands removed. The reliefprayed for cannot be said to be in the nature of vindicating personalrights of the first plaintiff. What was prayed was for framing of aproper scheme of administration so that the Trust which wasfounded with the object of making available medical and relatedservices to the general public could attain and achieve all itsobjectives through trustees who are themselves well qualified toundertake such responsibility. The substance of the matterdiscernible from para 21 as well as the principal relief claimed inthe suit is quite clear that what was being agitated were the publicrights. If in respect of a trust which had set up a hospital, a requestwas made for framing of a proper scope of administration byappointing trustee from medical profession and from public forproper and effective administration of the Trust, the matter woulddefinitely fall within the scope of Section 92 of the Code. Theview taken by the High Court is set aside and the decision arrivedat by the District Court is restored. [Paras 16-18][999 E-H; 1000-A; C-D]

D

E

Chairman Madappa v. M.N. Mahanthadevaru andOthers [1966] 2 SCR 151 – followed.

Bishwanath and Anr. v. Shri Thakur Radhaballabhji &Ors. [1967] 2 SCR 618; Sugra Bibi v. Hazi Kummu Mia[1969] 3 SCR 83 – relied on.

F

Case Law Reference

From the Judgment and Order dated 30.04.2019 of the High Courtof Judicature at Madras in C.R.P. (PD) No. 2708 of 2013.

H

A

K.V. Vishwanathan, Guru Krishna Kumar, Sr. Advs., PradeepAggarwal, Lal Pratap Singh, Shobhit Tiwari, Umesh Pratap Singh, ArjunAggarwal, Yash Raj, Apoorv Singhal, Ms. Ruchi Kohli, Sridhar,B. Ragunath, Arun Mozhi, Vijay Kumar, Advs. for the appearing parties,.

The Judgment of the Court was delivered byBUDAY UMESH LALIT, J.

1. Leave granted.

2. This appeal challenges the final judgment and order dated30.04.2019 passed by the High Court of Judicature at Madras in C.R.P.C(PD) No.2708 of 2013.

3. Original Suit No.566 of 2012 was filed by the present appellantsin the Court of the District Judge, Coimbatore stating basic facts asunder:- “III. The 2[nd] plaintiff is the wife of the 1[st] plaintiff. The 1[st] plaintiffDis the elder son of defendants 2 & 3. The 4[th] defendant is theyounger son of defendants 2 & 3 and the 5[th] defendant is hiswife. The 6[th] defendant is the daughter of defendants 4 & 5. The7[th] defendant is son in law of the family and he has married thesister of 1[st] plaintiff and the 4[th] defendant. The plaintiffs areTrustees of the 1[st] defendant Trust and are persons having interestEin the affairs of the Trust and are filing the present suit for framinga scheme for the administration of the 1[st] defendant Trust, whichis a Public Charitable Trust.

IV) The 2[nd] defendant settled down in Coimbatore in 1959 and hewas managing the firm called M/s India Roller Flour Mills. TheF1[st] plaintiff was academically a good student and he securedadmission on merit in medical college and he graduated fromCoimbatore Medical College completing MBBS. He pursued hisstudies further in post-graduation and completed his M.S. fromMadras Medical College, Chennai, and is thus a qualified surgeonGwho has graduated from the Madras University.

V) Taking note of his future and his carrier as a Doctor, the 2[nd]defendant decided to construct a hospital, so as to enable the 1[st]plaintiff to carry on his profession. However, the hospital wasenvisaged as a charitable hospital. The 2[nd] defendant as author ofHthe trust established the 1[st] defendant Trust, M/s Sitalaxmi Sahuwala Medical Trust, under registered Trust Deed dated09.04.1980. A copy of Deed of Trust is produced herewith andthe original is with the 2[nd] defendant as also the rest of thedocuments.

VI) The objects of the Trust are set out in Clause I which brieflyare to establish, maintain and render financial assistance anddonations by establishing and assisting running of a hospitals,surgical homes; health trainings, nursing homes, maternity homesand dispensaries and to equip the hospitals and provide accessoriesand instruments etc.

VII) The plaintiff respectfully states that the 1[st] defendant Trustwas established with the aim and object of providing medical aidto the needy citizens. This was contemplated taking note of thefact that the 1[st] plaintiff who became a qualified medical practitionerwould look after the institution and administer the hospital wherea part of the hospital can be run for charity and the 1[st] plaintiffcan have his consultations and in patients admitted to serve thepeople in society.

VIII) It is significant that the four trustees appointed under theDeed of Trust are both the plaintiffs and defendants 2 & 3 andthey have been appointed for life. The 2[nd] defendant is theManaging Trustee and the 1[st] plaintiff was appointed as the JointManaging Trustee, vide Clause 10.

IX) There was an amendment to the Trust Deed dated 09.04.1980by another deed dated 23.03.1981. In addition to the objects, furtherobjects for providing free education and conducting orphanagesand help poor people perform marriages were introduced to theobjects. But nothing of these additional charities were everperformed.

X) By another deed dated 15.03.1985, further objects wereintroduced to the Deed of Trust which have no relevance to theoriginal objects. There was also an amendment to the Trust Deedby a registered deed dated 24.11.1986 providing for borrowingpowers.

XI) The Trust purchased land measuring 33 Cents in Cowly BrownRoad by a sale deed dated 08.04.1985 and a hospital wasconstructed and it was established by the 1[st] defendant trust in A

B

C

D

E

F

G

H

A1987-88. The 1[st] plaintiff was looking after administration of thishospital till the year 2003-04. The subsequent turn of events duringthe past one decade are narrated herein below……..”.

4. The events after 2003-04 were then adverted to, and it waselaborated that the 4[th] defendant – brother of appellant No.1 who didBnot have any medical qualification or any expertise to run the hospitaland manage the Trust had been in control of the Trust and the objects ofthe Trust were not getting fulfilled; and that the appellants were soughtto be removed from the board of trustees. Finally, it was stated:- “XXI. The plaintiffs submit that time has come for this HonorableCCourt to interfere with the affairs of the 1[st] defendant Trust andto frame a proper scheme for administration of the Trust throughcompetent men, so that the objects of the Trust are implemented.The defendants are converting the public charitable trust into aprivate family trust with rubber stamp trustees so as to enablethem to make a living out of the trust properties and income fromDthe Trust. The defendants are guilty of ignoring the objects of theTrust and in misappropriating the income earned by the Trust bysuppressing its real income by converting the hospital into abusiness venture. A scheme requires to be framed for the followingreasons:

E1. The administration of the Trust should be in proper hands andthe hospital should be administered by competent qualifiedDoctors.

2. No charity is performed by the 1[st] defendant Trust and recordsare created and fabricated for the said purpose for the past 5Fyears. No free medical aid is provided and allowed to beprovided. Only the 1[st] plaintiff gives free consultation to patients.

3. No regular meeting of the Trust are conducted and noprocedures are followed for proper conduct of meetings. Noresolutions are passed and minutes are not recorded.G4. The real income derived by the Trust is not accounted and thisis siphoned off for the personal use by Defendants 2 to 5.Cash collected is not deposited immediately on the followingday but used by the 4[th] defendant.

5. Trustees are appointed and removed according to the whimsHof defendants 2 & 4 and no democratic system is followed.

6. Complaints are frequently emerging from Doctors and Patientsthat the 4[th] defendant is demanding and receiving kickback ofvarious amounts involved and the 1[st] plaintiff has been informedto watch out the activities of the 4[th] defendant and to directhim to mend his ways, to preserve the reputation of hospital.

7. The defendants do not come and supervise the hospital on aday to day basis. The 1[st] plaintiff is prevented from taking partin the administration and management of the hospital. Properaccounts are not maintained.

8. The defendants are thus guilty of mismanagement,misappropriation and they are guilty of committing breach ofTrust and they are not fit to hold office. The 8[th] defendant isthe Banker for the 1[st] defendant Trust and the 1[st] defendant isoperating its accounts with the 8[th] defendant. The 8[th] defendantis thus a proper party as the operation of account andwithdrawals can be.”

5. In the circumstances, the appellants prayed for following reliefsin said Suit:-

“a) By framing a proper scheme of administration for 1[st] DefendantTrust namely M/s Sitalaxmi Sahuwala Medical Trust by removingthe defendants 2 to 6 and appointing fresh trustees including the1[st] plaintiff and other trustees from the medical profession andfrom the public for proper and effective administration of the 1[st]defendant Trust by vesting the properties of the 1[st] defendant trustwith the new trustees to be appointed.

b) Declaring that the appointment of the 6[th] defendant as trusteeis void and illegal and for consequential permanent injunction torestrain the 6[th] defendant from functioning as a Trustee of the 1[st]defendant trust.

c) For declaration that the procedure adopted to remove theplaintiffs from the Trust Board is void, illegal and mala fide andfor consequential permanent injunction restraining the defendants2 to 6 from removing the Plaintiffs from the Trust Board orreconstructing the Trust Board without leave of the Court.

d) For permanent injunction restraining Defendants fromappointing the 7[th] defendant as a Trustee and to restrain the 7[th]defendant from acting as Trustees of the 1[st] defendant Trust.

A

B

C

D

E

F

G

H

e) Directing the accounts of the 1[st] defendant Trust to be auditedby an independent Chartered Accountant and to surchargedefendants 2 & 4 to pay up to the 1[st] defendant Trust any amountthat may be found due from them to the Trust.

A

f) Appoint a Receiver to take charge of the assets of the 1[st]BDefendant Trust and administer the same and entrust them to theTrustees appointed as per Scheme.

g) Award cost of the suit to the plaintiff.

h) Grant such other and further relieves as this Honourable Courtmay deem fit and proper in the facts and circumstances of the case.”C

6. Along with the aforesaid Suit, IA No.1416 of 2012 was filed bythe appellants seeking leave to institute the Suit under Section 92 of theCode of Civil Procedure, 1908 (‘the Code’, for short). By order dated31.07.2012, the District Judge, Coimbatore granted leave under Section92 of the Code. Soon thereafter Respondent No.2 herein filed IA No.1435Dof 2012 seeking revocation of leave granted to the appellants videaforesaid order dated 31.07.2012. It was stated, inter alia, that neitherthe application nor an affidavit in support of the application disclosedany proper reason for grant of such leave. The matter was contested.The District Court vide order dated 27.11.2012 held that the appellantsEhad made out a prima facie case and there was no necessity to revokethe leave already granted. The District Court, thus, dismissed IA No.1435of 2012 holding inter alia:

“18. In Para 18 of the plaint there is an allegation that the 4defendant runs the hospital of the trust to earn his livelihood andFsiphoning off the income for his personal use. There was allegationto the effect that no meeting of trustees has been held for the pastmany years.

The defendants are not competent and qualified toadminister the hospital. In para 9 it was alleged that the 6[th]defendant was inducted as a trustee in violation of the provisionsGcontained in the trust deed. No annual meeting was held for passingaccounts and for appointment of auditor.

… … …

20. … In the case at hand, admittedly the 1[st] plaintiff is a doctor.HHis qualification is Master of Surgery. 2[nd] plaintiff is his wife.

They are first trustees of the trust. It can be safely held that theyare having interest in the trust. Therefore it cannot be said thatthe suit has been filed by irresponsible persons. Admittedly thetrust was created for public purposes. It has been brought to thenotice of the Court that the objects of the original trust have beenamended without any authority. The validity of the amendmentcan be gone into after trial. Likewise the amendment with regardto appointment of trustees can also be decided after conclusion oftrial. In “V.Rajasekaran vs. M. Rajendran”[1] it has been heldthat:

“Unless a strong case is made out, ordinarily the Court shouldgrant leave so that the question can be considered in depthafter evidence is recorded.”

… … …

21. It is well settled that public charity is perpetual and the Courtis the guardian of a charity. Having regard to the whole facts andcircumstances of the case, I hold that the plaintiffs have made outa prima-facie case. Therefore, the leave granted by this Court toinstitute the suit cannot be revoked. The point is answeredaccordingly.”

7. The respondents challenged the aforesaid decision of the DistrictCourt by filing Civil Revision being C.R.P. (PD) No.2708 of 2013 beforethe High Court. Soon thereafter another suit being OS No.1415 of 2013was filed by the appellants along with their two sons seeking a decreefor declaration that the amendment made under the Supplemental Deedof Trust dated 10.08.2012 be declared void and illegal. We are notpresently concerned with said OS No.1415 of 2013.

8. The aforesaid Civil Revision was allowed by the High Courtvide its judgment and order dated 30.04.2019 accepting the submissionthat the suit as framed was essentially to vindicate the private rights ofthe appellants and that the leave under Section 92 of the Code could nothave been granted. It was observed by the High Court as under:

“22. From the above judgments, it is well settled that the mainpurpose of provision under Section 92 of CPC is to give aprotection to public trust or charitable or religious nature, from A

B

C

D

E

F

G

H

A

Abeing subjected to harassment by suits being filed against themand the Courts also to see that there is a prima facie case eitherbreach of trust or of necessity of obtaining direction from theCourt on the basis of allegation made in the plaint. If the allegationof breach of trust is not substantiated and the very foundation ofthe suit is based on the private rights, leave cannot be grantedBunder Section 92 CPC. Similarly, Court can also go beyond therelief and have regard to the capacity in which the plaintiff hassued on the purpose which the suit was brought. Mere colour oflegitimacy was sought to be given by projecting as if the suit wasvindicating the public rights, leave cannot be granted. From theCjudgments of the Apex Court only the allegation in the plaint thatshould be looked into at the first instance whether the suit fallwithin the ambit of Section 92.

23. In the light of the above settled position now it has to be seenwhether the suit has been filed to vindicate the public right orprivate right. No doubt the Trust is charitable trust. Only theallegations in the plaint to be looked into find out as to whether thesuit is for vindicating the private rights or public right. On entireperusal of the plaint para 5 of the plaint, it is the contention of theplaintiff that the 2[nd] defendant has decided to construct a hospitalso as to enable the 1st plaintiff to carry on his profession. However,the hospital was envisaged as a Charitable hospital. In para 7 ofthe plaint it is the contention of the plaintiff that the 1[st] Plaintiffcan have his consultations and in patients admitted to serve thepeople in society. The plaintiff was looking after the administrationof the hospital till the year 2003 and 2004. In para 11 and 12 it ispleaded how the 4[th] defendant was inducted into the Trust and inpara 13 it is pleaded as if 4th defendant slowly started to usurppowers and become a Joint Managing Trustee, though the plaintiffwas looking after the administration of the hospital till the year2003-2004. It is further alleged in para 13 that the 4th defendanthas not allowed the defendant 2 and 3 to take independent decision.In para 14 it is stated that the 4[th] defendant is receiving part of therent by cash and using it for his expenses. In para 15 of the plaintit is the contention of the plaintiff that 4[th] defendant has beenlooking after the affairs of the hospital which was intended formedical practice of the first plaintiff. In fact, this allegation iscontrary to earlier pleadings that he was managing the hospital in D

E

F

G

H

2003-2004. The entire pleadings clearly indicate that the defendantshave inducted the 3[rd] defendant’s daughter and wife and therewas also an agenda circulated by communication dated 23.07.2012for the meeting proposed to be held on 09.08.2012.”

9. In this appeal challenging the view taken by the High Court, weheard Mr. K.V. Vishwanathan, learned Senior Advocate for the appellantsand Mr. Guru Krishna Kumar, learned Senior Advocate for therespondents.

10. The basic issue involved in the matter is whether the appellantswere rightly granted leave under Section 92 of the Code by the TrialCourt. We may at the outset quote relevant provisions of Section 92,which are to the following effect:- “92. Public Charities.–(1) In the case of any alleged breach ofany express or constructive trust created for public purposes of acharitable or religious nature, or where the direction of the Courtis deemed necessary for the administration of any such trust, theAdvocate-General, or two or more persons having an interest inthe trust and having obtained the leave of the Court may institutea suit, whether contentious or not, in the principal Civil Court oforiginal jurisdiction or in any other Court empowered in that behalfby the State Government within the local limits of whose jurisdictionthe whole or any part of the subject-matter of the trust is situateto obtain a decree–

(a) removing any trustees;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a personwho has ceased to be a trustee, to deliver possession ofany trust property in his possession to the person entitledto the possession of such property; (d)directing accounts and inquiries; (e)declaring what proportion of the trust property or of theinterest therein shall be allocated to any particular objectof the trust; (f)authorizing the whole or any part of the trust property tobe let, sold, mortgaged or exchanged; A

B

C

D

E

F

G

H

A(g)settling a scheme; or

(h) granting such further or other relief as the nature of thecase may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20of 1863), or by any corresponding law in force in the territoriesBwhich, immediately before the 1[st] November, 1956, were comprisedin Part B States, no suit claiming any of the reliefs specified insub-section (1) shall be instituted in respect of any such trust as istherein referred to except in conformity with the provisions ofthat sub-section.

C(3) ……….”

11. While considering the scope of Section 92 (1), as it existedthen, a Constitution Bench of this Court observed in Chairman Madappavs. M.N. Mahanthadevaru and Others[2], as under:- D“… Section 92(1) provides for two class of cases, namely, (i)where there is a breach of trust in a trust created for publicpurposes of a charitable or religious nature, and (ii) where thedirection of the court is deemed necessary for the administrationof any such trust. The main purpose of Section 92(1) is to giveprotection to public trusts of a charitable or religious nature fromEbeing subjected to harassment by suits being filed against them.That is why it provides that suits under that section can only befiled either by the Advocate General, or two or more personshaving an interest in the trust with the consent in writing of theAdvocate General. The object clearly is that before the AdvocateFGeneral files a suit or gives his consent for filing a suit underSection 92, he would satisfy himself that there is a prima faciecase either of the each of trust or of the necessity for obtainingdirections of the court. The reliefs to be sought in a suit underSection 92(1) are indicated in that section and include removal ofany trustee, appointment of a new trustee, vesting of any propertyGin a trustee, directing a removed trustee or person who has ceasedto be a trustee to deliver possession of trust property in hispossession to the person entitled to the possession of such property,directing accounts and enquiries, declaring what proportion of thetrust-property or of the interest therein shall be allocated to any D

H2 (1966) 2 SCR 151

particular object of the trust, authorisation of the whole or anypart of the trust-property to be let, sold, mortgaged or exchanged,or settlement of a scheme. The nature of these reliefs will showthat a suit under Section 92 may be filed when there is a breachof trust or when the administration of the trust generally requiresimprovement. … …”

12. The statement of law so laid down was reiterated:-

A) In Bishwanath and anr. vs. Shri Thakur Radhaballabhji& ors.[3]

“It is settled law that to invoke Section 92 of the Code of CivilProcedure, 3 conditions have to be satisfied, namely, (i) the trustis created for public purposes of a charitable or religious nature;(ii) there was a breach of trust or a direction of court is necessaryin the administration of such a trust; and (iii) the relief claimed isone or other of the reliefs enumerated therein. If any of the 3conditions is not satisfied, the suit falls outside the scope of thesaid section. … …”

B) In Sugra Bibi vs. Hazi Kummu Mia[4]

“It is evident that this section has no application unless threeconditions are fulfilled: (1) the suit must relate to a public charitableor religious trust, (2) the suit must be founded on an allegation ofbreach of trust or the direction of the Court is required foradministration of the trust, and (3) the reliefs claimed are thosewhich are mentioned in the section.”

13. Three conditions are therefore, required to be satisfied in orderto invoke Section 92 of the Code and to maintain an action under saidSection, namely, that

(i) the Trust in question is created for public purposes of a charitableor religious nature;

(ii) there is a breach of trust or a direction of Court is necessary inthe administration of such a Trust; and

(iii) the relief claimed is one or other of the reliefs as enumeratedin said Section.

3 (1967) 2 SCR 6184 (1969) 3 SCR 83

AB

CD

E

F

G

H

AConsequently, if any of these three conditions is not satisfied, thematter would be outside the scope of said Section 92.

14. In the instant case, it is admitted that the concerned Trust iscreated for public purposes of charitable nature. The matter on thatfront is beyond any doubt. As regards the second condition, paragraphB21 of the plaint makes out a case that a public charitable trust was beingrun as a private family trust; that the object of the Trust was beingignored; and that there was necessity to frame a proper scheme foradministration of the Trust through competent persons. The secondcondition also stands satisfied.

CInsofar as the third condition is concerned, the reliefs prayed forare diverse which include inter alia framing of a proper scheme ofadministration, for removing certain trustees and appointment of freshtrustees from medical profession and from public and for other ancillaryreliefs. It is true that the reliefs prayed for include a relief where thefirst plaintiff is also being sought to be included as one of the trusteesDalong with other trustees from medical profession and from public, forproper and effective administration of the Trust. A question, thereforearises whether such relief along with other averments in the plaint wouldtake the matter out of the scope of the Section 92 of the Code or not.

15. In Sugra Bibi[4], the Wakf was created substantially for a publicEpurpose and the reliefs prayed for in the suit inter alia, were i) forremoval of the defendant from the office of Mutwalli and for appointmentof the son of the plaintiff in his place and ii) for appointment of a receivertill said son attained majority. While considering the facts where thecreation of Wakf was substantially for a public purpose, this Courtobserved:-F

“… … The proper test for holding whether the Wakf would fallwithin the purview of Section 92, Civil Procedure Code is toexamine whether the Wakf has been created substantially for apublic purpose. Applying the test to the present case, we are ofGopinion that the Wakf created by Haji Elahi Bux on November 18,1936 falls within the purview of Section 92, Civil Procedure Code.This view is borne out by the decision of the Calcutta High Courtin S. Massirat Hossain v. Hossain Ahmad Chowdhury[5]. Thatcase related to a Wakf estate, the net annual income of which

was about Rs 1300 and out of this a sum of Rs 353 was set apartfor public purposes of a charitable or religious nature. It was heldby the learned Judges that the amount by no means was a triflingor a disproportionate provision in favour of the public andconsequently the suit was maintainable under Section 92 of theCivil Procedure Code. Reliance was placed by the High Court insupport of its decision upon the pronouncement of the JudicialCommittee in Vaidya Nath Aiyyar v. Swaminatha Ayyar[6] wherethe founder of the trust directed by his will that two-thirds of theincome of his property would go to his wife and the remainingone-third would go first towards the discharge of certain debtsand thereafter to establish a Chatram for the feeding of the poor.There was a further provision that after the wife’s death, two-thirds of the income given to her would be applied to charity andone-third to the members of the family. On these facts the JudicialCommittee agreed with the findings of the court below that theChatram so established was a public trust.”

In the context of the relief prayed for, the submission that “theSuit was brought not to vindicate or to establish a right of the publicinstitution i.e., the trust, but to remedy an infringement of an individualright or to vindicate the private right of the appellant”, was consideredas under:- “… …The reliefs prayed for are: (1) removal of the respondentfrom the office of Mutwalli and appointment of Soleman, appellant’sson, as Mutwalli in his place, and (2) till the said Soleman attainsmajority appointment of a Receiver for the management of theWakf estate.It is true that the facts that a suit relates to publictrust of a religious or charitable nature and the reliefs claimed fallwithin clauses (a) to (h) of sub-section (1) of Section 92 CivilProcedure Code would not by themselves attract the operation ofthe section, unless the suit is of a representative character institutedin the interests of the public and not merely for vindication of theindividual or personal rights of the plaintiff. As was stated byWoodroffe, J. in Budreedas v. Choonilal[7]:

“It is obvious that the Advocate-General, Collector or otherpublic officer can and do sue only as representing the public, 6 (1923-24) 51 I.A. 282

7 I.L.R. 33 Cal. 789

AB

C

D

E

F

G

H

A

B

C

D

E

F

G

and if, instead of these officers, two or more persons havingan interest in the trust sue with their consent, they sue under awarrant to represent the public as the objects of the trust. Itfollows from this, that when a person or persons sue not toestablish the general rights of the public, of which they are amember or members, but to remedy a particular infringementof their own individual right, the suit is not within or need notbe brought under the section.”

This principle was accepted as sound by a Full Bench of theMadras High Court in Appanna v. Narasigna[8]. In that case, asuit was instituted by a trustee of a public religious trust against aco-trustee for accounts and the Full Bench decided that it did notcome within Section 92 of the Civil Procedure Code, the claimbeing to enforce a purely personal right of the plaintiff as a trusteeagainst his co-trustees. The same view was taken by the MadrasHigh Court in The Tirumalai-Tirupati Devasthanams Committeev. Udiayar Krishnayya Shanbhagal[9]. In this case the generaltrustees of a public temple filed a suit against the trustees for therecovery of moneys which the latter had collected on behalf ofthe former praying for a decree directing accounts and inquiries.It was held that the right to collect moneys was entirelyindependent of Section 92 of the Civil Procedure Code and nosanction of the Advocate-General was necessary for the institutionof the suit. Leach, C.J. who delivered the judgment of the Courtobserved as follows:

“After hearing the arguments of learned Counsel in the presentcase we can see no reason for disagreeing with anything saidin Shanmukham Chetty v. Govinda Chetty[10]. On the otherhand we find ourselves in full agreement with the opinion ofVaradachariar, J. that, in deciding whether a suit falls withinSection 92, the Court must go beyond the reliefs and haveregard to the capacity in which the plaintiffs are suing and tothe purpose for which the suit is brought. The judgment of thePrivy Council in Abdur Rahim v. Mahomed Barkat Ali[11] lends 8 I.L.R. 45 Mad. 113

9 I.L.R. [1943] Mad. 619

10 I.L.R. 1938 Mad. 39

H11 (1927) I.L.R. 55 Cal. 519 (P.C.)

no support for the opinion expressed by the Full Bench in JankiBai v. Thiruchitrambala Vinayakar[12]”.

Applying the principle laid down in these authorities, we are ofopinion that in the present case the suit brought by the appellantmust be treated as a suit brought by her in a representative capacityon behalf of all the beneficiaries of the Wakf. As we have alreadystated, the Wakf created by Haji Elahi Bux was a Wakf createdfor a public purpose of charitable or religious nature. The reliefsclaimed by the appellant in the suit are not reliefs for enforcingany private rights but reliefs for the removal of the defendant astrustee and for appointment of a new trustee in his place.Thereliefs asked for by the appellant fall within clauses (a) and (b) ofSection 92(1) of the Civil Procedure Code and these reliefs claimedby the appellant indicate that the suit was brought by the appellantnot in an individual capacity but as representing all the beneficiariesof the Wakf estate. … …”

(emphasis added)

16. Thus, though the reliefs prayed for removal of the defendantfrom the office of Mutwalli, for appointment of the son of the plaintiffand for appointment of receiver, in Sugra Bibi[4], this Court found thatthe suit was brought by the plaintiff in representative capacity.

In the present matter, the appellant No.1-first plaintiff, as a qualifiedmedical professional, was associated with the Trust and what is beingcomplained is that the appellants have been removed from the board oftrustees and none of the present trustees are from medical profession.It is in that context that the principal relief prays for framing of a properscheme of administration and for appointing trustees from medicalprofession and from the public for proper and effective administration ofthe Trust. The expression “including the first plaintiff” has to beunderstood in the context that the first plaintiff, as a qualified medicalprofessional, was associated with the Trust right since the inception butnow stands removed. The relief prayed for cannot be said to be in thenature of vindicating personal rights of the first plaintiff. What was prayedwas for framing of a proper scheme of administration so that the Trustwhich was founded with the object of making available medical andrelated services to the general public could attain and achieve all its AB

C

D

E

F

G

H

Aobjectives through trustees who are themselves well qualified to undertakesuch responsibility.

17. Viewed thus, the conclusion arrived at by the Trial Court inpara 21 as quoted hereinabove, was quite correct and the matter did notcall for any interference by the High Court. It is true that certain parasBof the plaint do indicate the grievances that the appellant were completelyside-lined while the control of the Trust was in the hands of the concerneddefendants. The allegations highlight that the Trust was not beingmanaged properly, was not being managed by medical professionals andthere was siphoning of funds. However, the substance of the matterdiscernible from para 21 as well as the principal relief claimed in the suitCis quite clear that what was being agitated were the public rights. If inrespect of a trust which had set up a hospital, a request was made forframing of a proper scope of administration by appointing trustee frommedical profession and from public for proper and effective administrationof the Trust, the matter would definitely fall within the scope of SectionD92 of the Code.

18. In the circumstances, we allow this appeal, set aside the viewtaken by the High Court and restore the decision arrived at by the DistrictCourt. The appeal stands allowed without any order as to costs.

E

Divya Pandey

Appeal allowed.

F

G

H