ivil Appeal No 3577 of 1988
From the Judgment and Order dated 1991986 of the Madras High Court in CRP No 3210 of 1985
section Padmanabhan Mr TA Subramaniyam RN Keshwani and section Balakrishnan for the Appellants
G Ramaswamy Additional Solicitor General K Swami section Srinivasan Rajyappa section Murlidhar Diwan Balak Ram and MKD Namboodari for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
Venkatarayulu Naidu Charities is a public trust VP Venkatakrishna Naidu and VP Rajagopala Naidu filed an original suit No 28 of 1909 hereinafter called original suit in the court of Subordinate Judge Mayavaram under Section 92 of the Code of Civil Procedure praying inter alia that the defendant trustee be 763 removed from the said office and a new trustee be appointed with directions to recover trust properties improperly and fraudulently alienated by the defendant
The subordinate court permitted the trustee to continue and framed a scheme decree dated September 9 1910 for the future manage ment and administration of the trust
Clauses 13 and 14 of the scheme are as under 13 The trustee shall not effect any altera tions or additions to the existing buildings except with the permission of the Tanjore Sub Court 14 Liberty is given to the parties to apply to the Tanjore Sub Court for further direc tions if any from time to time as regards the administration of the trusts
 The question for consideration in this Appeal is whether parties mentioned in Clause 14 of the scheme decree repro duced above mean only the named plaintiffs and defendant in the suit title and their successors in interest or the suit being representative it includes all those who are interest ed in the trust
Further necessary facts are as under The trust owns several items of proper ties
We are concerned with the following two properties alone of the trust
Property situate at Muthukumara Moopannaar Road in TS No 2936 to an extent of 11484 sq
ft 2
Property situate at ward No 6 Gandhiji Road in TS No 2937 to an extent of 4429 sq
The trustees filed interim application No 453 of 1984 in the Original Suit before the subordinate court for per mission to sell the first property which was granted by the order dated October 27 1984 and the property was sold for Rs11000
Similarly the second property was sold for Rs69328 with the permission of the court dated January 23 1985
R Venugopala Naidu and three others who are the present appellants filed interim application No 175 of 1985 in the original suit before the subordinate judge Thanjavur for setting aside the orders dated October 27 1984 and January 23 1985 granting permission to 764 the trust to sell the above mentioned two properties
It was alleged that the negotiated sale was at a price which was almost 20 of the market price
There was no publication in any newspapers or even in the court notice board inviting the general public
The learned subordinate judge dismissed the application on the ground that the applicants have no locus sandi to file the application under clauses 13 and 14 of the scheme decree as they were not parties to the original suit
A further revision before the Madras High Court was dismissed
The High Court also came to the conclusion that the applica tion was not maintainable
It was also held by the High Court that two of the four applicants who are muslims cannot have any interest in the administration of the trust
Against the High Court judgment the present appeal by way of special leave has been filed
Mr section Padmanabhan learned counsel for the appellants has vehemently argued that though the appellants were not shown as parties in suit title but the suit under Section 92 of Civil Procedure Code being a representative suit the scheme decree binds not only the parties thereto but all those who are interested in the trust
According to him parties in clause 14 of the scheme decree would include appellants and all those who are interested in the trust
He has relied on Raje Anandrao vs Shamrao and Others  wherein this Court held as under   
It is true that the pujaris were not parties to the suit under section 92 but the deci sion in that suit binds the pujaris as wor shipers so far as the administration of the temple is concerned even though they were not parties to it for a suit under section 92 is a representative suit and binds not only the parties thereto but all those who are inter ested in the trust The learned counsel further relied on Ahmed Adam Sait and Others vs Inayathullah Mekhri and Others  wherein this Court observed as under A suit under section 92 it is urged is a repre sentative suit and so whether or not the present respondents actually appeared in that suit they would be bound by the decree which had framed a scheme for the proper administra tion of the Trust
In support of this argu ment reliance is placed on the decision of this Court in Raja Anandrao vs Shamrao 765 where it is observed that though the Pujaris were not parties to the suit under section 92 the decision in that suit binds the pujaris as worshipers so far as the administration of the temple is concerned because a suit under section 92 is a representative suit and binds not only the parties thereto but all those who are interested in the Trust      
In assessing the validity of this argument it is necessary to consider the basis of the decisions that a decree passed in a suit under section 92 binds all parties
The basis of this view is that a suit under section 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust
The said section authorises 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 sub section 1 after consent in writing there prescribed has been obtained
Thus when a suit is brought under section 92 it is brought by two or more persons interested in the Trust who have taken upon themselves the responsi bility of representing all the beneficiaries of the Trust
In such a suit though all the beneficiaries may not be expressly impleaded the action is instituted on their behalf and relief is claimed in a representative charac ter
This position immediately attracts the provisions of explanation VI to section 11 of the Code
Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others all persons interested in such right shall for the pur poses of this section be deemed to claim under the persons so litigating
It is clear that section 11 read with its explanation VI leads to the result that a decree passed in a suit instituted by persons to which explanation VI applies will bar further claims by persons interested in the same right in respect of which the prior suit had been instituted
Explanation VI thus illustrates one aspect of constructive res judicata
Where a representa tive suit is brought under section 92 and a decree is passed in such a suit law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and there fore are constructively barred by res judica ta from reagitating the matters directly and substantially in issue in the said earlier suit
A similar result follows if a suit is either brought or 766 defended under 01
 r 8
In that case per sons either suing or defending an action are doing so in a representative character and so the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants    The legal position which emerges is that a suit under Section 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts and chari ties
The suit is fundamentally on behalf of the entire body of persons who are interested in the trust
It is for the vindication of public rights
The beneficiaries of the trust which may consist of public at large may choose two or more persons amongst themselves for the purpose of filing a suit under Section 92 of the Code and the suit title in that event would show only their names as plaintiffs
Can we say that the persons whose names are on the suit title are the only parties to the suit The answer would be in the negative
The named plaintiffs being the representatives of the public at large which is interested in the trust all such interested persons would be considered in the eyes of law to be parties to the suit
A suit under Section 92 of the Code is thus a representative suit and as such binds only the parties named in the suit title but all those who are interested in the trust
It is for that reason that explanation VI to Section II of the Code constructively bar by res judicata the entire body of interested persons from reagitating the matters directly and substantially in issue in an earlier suit under Section 92 of the Code
Mr G Ramaswamy learned counsel appearing for the respondent trust has argued that only the two persons who filed the original suit can be considered as parties in terms of clause 14 of the scheme decree and according to him since the appellants were not the plaintiffs they have no locus standi to file any application under clause 13 and 14 of the scheme decree
According to the learned counsel Section 92 of the Code brings out a dichotomy in the sense that there are parties to the suit and persons interested in the trust According to him persons interested in the trust cannot be considered parties to the suit although the judgmentdecree in the suit in binding on them
He has also argued that a suit under Section 92 of Civil Procedure Code is different from a suit filed under Order 1 Rule 8 of Civil Procedure Code
We do not agree with the learned counsel
A suit whether under Section 92 of Civil Procedure Code or under Order 1 Rule 8 of Civil Procedure Code is by the representatives of large number of persons who have a common interest
The very nature of a representative suit makes all those who have common interest in the suit as parties
We 767 therefore conclude that all persons who are interested in Venkatarayulu Naidu Charities which is admittedly a public trust are parties to the original suit and as such can exercise their rights under clauses 13 and 14 of scheme decree dated September 9 19 10
It is not necessary to go into the finding of the High Court that two of the appellants being muslims can have no interest in the trust as the other two appellants claim to be the beneficiaries of the trust and their claim has not been negatived
Moreover the trust has been constituted to perform not only charities of a religious nature but also charities of a secular nature such as providing for drinking water and food for the general public without reference to caste or religion
In view of our findings above the subordinate court and the High Court were in error in holding that the appellants had no locus standi to file the application for setting aside the order permitting the sale of the properties
We therefore allow the appeal and set aside the order of the subordinate court and that of the High Court
The subordinate court and the High Court did not go into the merits of the case as the appellants were non suited on the ground of locus standi
We would have normally remanded the case for decision on merits but in the facts and circum stances of this case we are satisfied that the value of the property which the trust got was not the market value
Two persons namely SM Mohamed Yaaseen ad SNM Ubayadully have filed affidavit offering Rs900 lacs and Rs 1000 lacs respectively for these properties
In support of their bona fide they have deposited 10 of the offer in this Court
This Court in Chenchu Ram Reddy and another vs Gov ernment of Andhra Pradesh and Others 1986 3 SCC 391 has held that the property of religious and charitable endow ments or institutions must be jealously protected because large segment of the community has beneficial interest therein
Sale by private negotiations which is not visible to the public eye and may even give rise to public suspi cion should not therefore be permitted unless there are special reasons to justify the same
It has further been held that care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment
We therefore set aside the orders of subordinate court dated October 27 1984 and January 23 1985 permitting the sale of the two properties and also set aside the consequent sale in favour of the respondents
We direct that the properties in question may be sold by 768 public auction by giving wide publicity regarding the date time and place of public auction
The offer of Rs 10 lacs made in this Court will be treated as minimum bid of the person who has given the offer and deposited ten percent of the amount in this Court
It will also be open to the re spondentspurchasers to participate in the auction and compete with others for purchasing the properties
The respondents vendees from the trust shall be enti tled to refund of the price paid by them with 10 interest from the date of payment of the amount till the date of auction of the property
They will also be entitled to compensation for any super structure put up by them in the properties including compensation for any additions or improvements made by them to the building and the property
The value of such super structure and the improvements and additions shall be ascertained by the subordinate court through a qualified engineer and by Such other method as the court may deem fit
The court shall fix the value and com pensation amount after affording opportunity to the respond ents and the trust to make their representation in that respect
There shall be no order as to costs
GN Appeal al lowed


Summary:
In a suit instituted on behalf of a Hindu minor for partition of the joint family properties the minor plaintiff died during the pendency of the suit and his mother as the legal representative was allowed to continue the suit as the second plaintiff and the suit was decreed as it was found that the defendants had been acting against the interests of the minor and that the suit for partition was therefore beneficial to him
It was contended for the appellants that the suit had abated by reason of the death of the minor before the suit was heard and before the Court could decide whether the institution of the suit was for his benefit
Held that when a suit is instituted by a person acting on behalf of a minor for the partition of the joint family properties a declaration made by him on behalf of the minor to become divided brings about a severance in status subject only to the decision of the Court that the action is beneficial to the minor
The true effect of the decision of the Court is not to create in the minor a right which he did not possess before but to recognise the right which had accrued to him when the action was instituted
Rangasayi vs Nagarathnamma Mad 95 Ramsingh vs Fakira I L R and Mandilprasad vs Ramcharanlal ILR  approved
Case law reviewed
Accordingly the suit did not abate and the legal represen tative was entitled to continue the suit and obtain a decree on showing that when the suit was instituted it was for the benefit of the minor
Held further that the suit did not abate on the ground either that the cause of action for a suit for partition by a minor was one personal to him because such a suit is one relating to property