IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/12/2003 CORAM THE HONOURABLE MR.JUSTICE N.DHINAKAR AND THE HONOURABLE MR.JUSTICE A.KULASEKARAN O.S.A.No.83 of 2003 AND O.S.A.No.129 OF 2003 AND C.M.P.NOs.5953 TO 5955 OF 2003 1.L.M.Menezes 2.Joseph C.Kuriacose 3.Harold D'Silva ... Appellants in both appeals -Vs- 1.Rt.Rev.Dr.Lawrence Pius 2.Most Rev.Arul Das James 3.Rt.Rev.Tony Devotta 4.Rev.Fr.P.J.Lawrence Raj 5.Rev.Fr.Thomas Simon 6.Rev.Fr.K.S.Lawrence 7.Mr.Jeppiaar 8.Catholic Bishops Conference of India (CBCI), rep.by its Secretary General Most Rev.Oswald Gracias, CBCI Centre, H1, Ashok Place, (Near Gole Dakkhana), New Delhi-110 021. 9.Most Rev.Archbishop of Goa, Archbishop's House, "Altinha" Panjim, Goa-403 001. (nominated as Supervisor of the Trust by the Testator)...Respondents in O.S.A.83/2003 1.Most Rev.Arul Das James 2.Rt.Rev.Dr.Lawrence Pius 3.Rt.Rev.Tony Devotta 4.Rev.Fr.P.J.Lawrence Raj 5.Rev.Fr.Thomas Simon 6.Rev.Fr.K.S.Lawrence 7.Mr.Jeppiaar 8.Catholic Bishops Conference of India (CBCI), rep.by its Secretary General Most Rev.Oswald Gracias, CBCI Centre, H1, Ashok Place, (Near Gole Dakkhana), New Delhi-110 021. 9.Most Rev.Archbishop of Goa, Archbishop's House, "Altinha" Panjim, Goa-403 001. (nominated as Supervisor of the Trust by the Testator) 10.The John De Monte Trust (created in and by the Will of Sir John De Monte dated 18th July, 1820), rep.by its Trustee, Archbishop's House, 21, Santhome High Road, Chennai-4. ...Respondents in O.S.A.129/2003 For appellants : Mr.Sriram Panchu, Senior Counsel for M/s.T.Mohan and S.Devika For respondents : Mr.M.K.Kabir for RR1, 4, 5 & 6 Mr.T.V.Ramanujam, Senior Counsel for Mr.T.V.Krishnamachari for RR2, 3, & 8 : Mr.T.R.Rajagopal,Senior Counsel for R7 : Mr.R.Karthikeyan for R9 Appeals against the order dated 06.01.2003 made in Application Nos.3 081 and 3668 of 2002 in C.S.No.156 of 2002 on the file of this Court. :J U D G M E N T A.KULASEKARAN,J. Since the issues involved in both these appeals are correlated, these appeals are being disposed of in common. 2. Plaintiffs are appellants in these appeals, which are filed against the common order of a learned single Judge of this Court, revoking the leave granted, under Section 92 of C.P.C., and dismissing the applications for impleading the Trust. 3. Leave was originally granted by an order dated 27.02.2002 in Application No.567 of 2002, to institute a suit only against the respondents herein under Section 92 of C.P.C., As the appellants failed to array the Trust as a defendant in the suit, later, an application to implead was filed. On the application preferred by the respondents herein to revoke the leave, the learned single Judge passed a common order allowing the application to revoke the leave and dismissing the application to implead. 4. Philanthropist Sir John De Monte was a Roman Catholic and a descendant of the Portugees, who settled down in India. He was gifted with brilliant talent, but not with money, during his childhood. He was employed by Mr.Christopher Bilderbeck as a Dubash. His honesty and ability placed him to the status of marrying Mary Bilderbeck, sister of Christopher Bilderbeck. Later, he amassed substantial wealth and acquired a lot of property, both movable and immovable. De Monte was a man of great religious faith and he constituted various religious, pious and charitable establishments and Trusts. De Monte left a Last Will and Testament dated 19th July, 1820, and subsequently, 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 Monte Trust", which is named after him. The said Great man's noble thought and philanthropic attitude was to render services to the needy. The said Will was also probated by the Supreme Court of Judicature at Madras on 28th September, 1827. 5. The properties of the Trust have been managed by Madras-Mylapore Arch Diocese. The appellants herein made allegations against the respondents that the properties of the Trust were being mismanaged in violation of the instructions of the testator and a substantial extent of immovable properties were sold. One of the properties of the Trust is comprised in R.S.No.3923 of Mylapore Village of a total extent of 257 grounds and 81 sq.ft., consisting of buildings, which is commonly known as Bens Garden, which was proposed to be leased for long term to the seventh respondent, without proper advertisement or notice to the general public. The second respondent filed O.P.before the original side of this Court, seeking permission for long term lease to be given to the seventh respondent, which was also objected to by the appellants herein. The appellants felt that it was proper to file a suit under Section 92 of C.P.C., as this Court is the custodian of religious and charitable trusts, for removing the trustees, rendition of accounts and recovery of the properties alienated and to constitute a committee to manage the properties in the hands of the trust. 6. Leave was granted to the applicants on 27.02.2002, by the Original Side of this Court, to file a suit under Section 92 of C.P.C. The Trust not was arrayed as a party in the suit, hence they filed an application to implead the Trust as one of the defendants. The respondents also filed an application to revoke the leave. 7. The learned single Judge, after hearing both sides, revoked the leave granted and also dismissed the applications for impleading, on the ground that though the appellants are respectful persons of the locality and not the persons interested in the Trust, the averment of mismanagement of the Trust properties was also not accepted and implead application cannot be allowed 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 Eastern Council, Shillong; a resident of Anna Nagar, Chennai; a Member of several Churches, devoted to training of girls from slum areas and one of the members of the Property Committee of De Monte Trust till 20 00; the second appellant is a Doctor of Science, having served for several decades of the Indian Institute of Technology, Kharagpur and Madras, associated with Archdiocesan Pastoral Council and Office of the Superintendent of Roman Catholic Schools, Parish Council Member and Secretary, Finance Committee etc.; the third appellant is a retired Corporate Head of Training Division, Hindustan Petroleum Corporation Ltd., having been involved in several activities of Archdiocese of Madras-Mylapore, and a long term office bearer of the Society of St. Vincent De Paul- a world wide charitable organisation and a constituent of the Catholic Church. The learned Senior Counsel has also submitted that the first appellant tendered his resignation from the Archdiocese Property Committee on 21.03.2000, since the respondents proposed to alienate Bens Garden property; that the appellants have made several representations against the mismanagement of the Trust properties by the second respondent to the other respondents, but no tangible action was taken. The appellants are persons interested in the Trust; the respondents have acted contrary to the object of the testator; that the application for impleading ought to have been allowed and the application for revocation of leave ought to have been dismissed; that the learned single Judge erred in passing orders contra and prayed for allowing the suit. 9. In support of his argument, the learned Senior Counsel relied upon the 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 it confers on two or more members of the public a right to seek relief without any proof of special damage. But once the Court is moved, the scope of its enquiry must be determined in the light of what is germane to the various matters indicated in S.92 and not by reference to the right of the plaintiffs to particular reliefs." In this case, the Division Bench of this Court held that once the Court is moved under Section 92 CPC, the scope of its enquiry must be determined in the light of what is germane to the various matters indicated and not by reference to the right of the plaintiffs to particular reliefs." ii) (Swami Parmatmanand Saraswati and another v. Ramji Tripathi and 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 presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92....It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights..." In this case, the Honourable Supreme Court held that the allegations in the plaint be looked into in the first instance to see whether the suit falls within the ambit of Section 92 CPC. If after evidence is taken, it is found that breach of trust alleged has not been made out, the suit must be dismissed. It is further held that the plaintiffs must sue to vindicate the right 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 appeal is whether the suit as framed is maintainable. S.92 C.P.C., which operates as a shield against the mismanagement of public trust whether charitable, religious or otherwise, is as far as possible exhaustive 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 time being enjoined to administer such trusts. The infringement of private rights is undoubtedly outside the scope of enquiry under the Section.... A resident of the locality who has some nexus or connection with the trust in the sense that he has interest 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 a public school such presumption could also be raised if he is an old student of the school, which necessarily involves a connection with it and if he is also a resident of the locality in which the school is situate he is doubly qualified to lay an action along with another under S.92 C.P.C. What is to be primarily established is that the suit relates to a trust created for a public purpose (2) it should contain allegations against the person-in-breach, such as breach of trust, misappropriation or mismanagement and (3) the necessity in the particular circumstance of a given case for administration of the trust by a body other than the body in management...." In this case, a learned single Judge of this Court held that the remote relationship of a person with the founder of the Trust is not sufficient to maintain the suit. The meaning of expression 'having an interest' cannot be held to be illusory or hypothetical. iv) (Chenchu Rami Reddy and another v. The Government of Andhra Pradesh and others) AIR 1986 SUPREME COURT 1158, therein the Apex Court held as under : "6. We cannot conclude without observing that property of such institutions or endowments must be jealously protected. It must be protected for a large segment of the community has beneficial interest in it (that is the raison d'etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the closest-and-best-attention approach to guard again all pitfalls. The approving authority must be aware that in such matters the trustees or persons authorised to sell by private negotiations, can, in a given case, enter into a secret or invisible underhand deal or understanding with the purchasers at the cost of the concerned institution...." In this case, the Apex Court deprecated the action of the Government for sale of land belonging to charitable endowment by private negotiation instead of public action. It is further held that the Court must fix reserve price after ascertaining the market value for the sake of safeguarding the interest 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 Court as follows : "17... Such a construction of the provisions of S.92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the Court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although, as a rule of caution, Court should normally give notice to the defendants 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 such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law." In this case, it was held by the Supreme Court that after a suit is instituted on the basis of leave granted without notice to the defendants, the suit would not thereby be rendered as bad in Law or nonmaintainable since grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an 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 Section 92 CPC has been filed by certain persons interested in a Church for removal of the existing trustees, sanction was obtained from the Advocate General, but again certain others had to be added as parties and the further sanction for adding parties was also obtained from the Advocate General and in an application for adding as parties the Judge in Chambers ordered for the necessary addition. The Division Bench held that the order of the Judge in Chambers allowing addition of parties was not a judgment within the meaning of Clause 15 of Letters Patent and hence not appellable. vii) (C.R. Neelakantan and another Vs. G. Bakthavatsalam) 1967 MLJ Volume I Page 29. In this case, a suit has been properly instituted under Section 92 CPC after obtaining sanction of the Advocate General. It was held that 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, further sanction 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 filed O.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; the suit was maintainable neither in law nor on facts; there is no mismanagement of trust; the appellants are not the parties interested, to file the suit under Section 92 of C.P.C.; the appellants are not acting bonafidely; the suit was filed with an intention to restrain the respondents from leasing out the property known as Bens Garden, situate at Chamiers Road, Chennai-28; the plaint does not contain any allegation of mismanagement that the first respondent was a member of the Property Committee and he is aware that the decision was taken only after consultation with the Property Committee; that an advertisement was made in Indian Express on 01.09.1996, calling for project management consultants and after going through the offers the committee shortlisted 12 firms and called upon them to present their proposal; out of 12 firms, 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 any fruitful results; thereafter, a special meeting was held on 18.12.1998 for further advertisement, which also not did not produce any valid response; the property 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 a monthly 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 been accepted 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 portion of the property was sold after obtaining permission of the Court; some of the properties were leased out for a long term, that too, with the permission of the Court; the appellants suppressed the above said facts and attempted to indirectly criticise the order; no specific averment has been made in respect of mismanagement; the successive Archbishops have managed the property for the past 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 De Monte Trust or Archdiocese; the Archdiocese of Madras-Mylapore is a registered society and the properties of John De Monte Trust cannot be merged with Archdiocese; the averment relating to rendition of accounts to the Archbishop of Goa is also untenable; this respondent has taken all precautions in processing the lease of Bens Garden property to the seventh respondent; assuming some of the allegations of mismanagement are only against Archdiocese and not against the Trust, the seventh respondent has engaged in running various institutions to satisfy the requirement of the desire of the testator, as contemplated in the Will; 390 grounds has been leased out to Franciscan Missionaries of Mary, who run the Women's College "STELLA MARIS" at Cathedral Road for a nominal rent of Rs.20,000/- per year; the property sold to Parry and Company was as per the permission granted by this Court; all the transactions are transparent and also in consonance to the wishes of Sir John De Monte; no grounds have been made out for framing scheme to manage the affairs of the trust; the appellants attempted to ventilate their personal grievances; the averments are vague and devoid of any merits; the appellants deliberately failed to array the trust as a respondent; hence, leave granted originally is not valid; the documents enclosed by the appellants do not make out a prima facie case of breach of trust; even the resignation letter tendered by the first appellant does not whisper any mismanagement or breach of trust; the first appellant was Property Committee Member of the Church and not to the trust; the role that he played as a member of the Property Committee of the trust does not entitle him to satisfy the words 'interested person' referred to under Section 92 of C.P.C. and that the learned single Judge rightly revoked the leave granted and dismissed the applications for impleading and, accordingly, prayed for dismissal of the appeals. 12. Mr.M.K.Kabir, learned counsel appearing for the respondents 1,4,5 and 6 also submitted his arguments on the same lines, as advanced by the learned Senior Counsel for the respondents 2,3 and 8. 13. Mr.Kabir relied upon the below mentioned decisions in support of his case:- i) (T.R.Ramachandra Iyer and another v. P.A.Parameswaran Munbu and 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 leading decision of the former class. It ruled that worshippers or persons accustomed to say their prayers in a mosque were not within the purview of S.539 as persons having a direct interest in the foundation. This ruling was followed by 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 the plaintiffs being managers of the temple in suit did not being them within the provisions of S.539. ...Apart from authority, appellant relied mainly relied on the enumeration of alleged crucial instances, as admitting only of a decision consistent with his claim. But he did not show how any principle could be deduced from them and so far as they could be tested with reference to convenience, the result was against him, since apart from consideration of bona fides, the possession of a mere right to worship affords no security for the plaintiffs' ability to propose a suitable scheme or later to see to its working. On the subject matter and language of the section it was suggested that the interest entitling to sue should be defined liberally to include such cases as appellant's, because the necessity for the consent of the Advocate-General or Collector will afford a corrective, where one is required. But that consent is merely a condition precedent to the institution of the suit and cannot affect the responsibility of the Court for the decision as to the plaintiffs' qualification. On the other hand, no good reason has been shown against the interpretation of the word "interest" in the section in the manner in which it is ordinarily interpreted in other legal connexions and in which I shall interpret it, as an interest which is substantial and not sentimental or remote. This conclusion is consistent with the only cases cited, in which a merely potential right to claim the benefits of the trust was 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, the former insisting on proof of a 'clear' interest, whilst the latter negatived the interest in a charity for the poor of one place alleged by persons, who were 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 mere possibility and is too remote to be substantial: and therefore however laudable his motives or those of the society, in which he holds office, his right to sue has not been established." In