FAO No.1432of 2005 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on July 28,2010. Gaurav Saini and others --Appellants vs. Manav Samaj Kalyan Kendra Bharat Branch and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.V.K.Jindal,Advocate,for the appellants Mr.Anjum Ahmed,Addl.A.G.Haryana for respondent Nos. 1 t 4. Mr.V.K.Jain,Sr.Advocate,with Mr. Prashant Vashisht,Advocate,for respondents Nos. 5 and 6. Rakesh Kumar Jain, J, This appeal is directed against the order of Addl.District Judge, Kurukshetra, dated 4.11.2004 by which leave to file suit under Section 92 of the Code of Civil Procedure, 1908 (for short, CPC), has been declined and the suit was consequently dismissed as not maintainable having been filed for the determination of private individual rights. Precisely, the appellant filed a suit under Section 92 of CPC FAO No.1432of 2005 2 alleging therein that plaintiff No.1 is the real grand son of one Sher Singh, who had created a Trust of charitable and religious nature by donating his land measuring 15 kanals 15 marlas bearing khasra No. 3/1,7/2, 8/2, 13 and 14/1of Rectangle No.8 of village Sunderpur, Tehsil Thanesar, District Kurukshetra to defendant No.1. by way of a Civil Court decree dated 20.2.1992 passed in Civil Suit No.488 of 1992 alongwith sum of Rs.18 lacs. It is alleged that plaintiff No.1. has interest in the affairs of the Trust. The suit was filed seeking a decree for rendition of accounts of defendant No.1. of its income and expenditure for the last three years, restraining the defendants from alienating, transferring and creating any charge over the property of the Trust, for declaration that defendant Nos. 2 to 7 are not managing the affairs of defendant No.1. properly and that a scheme may be ordered to be framed to manage the affairs of defendant No.1. Alongwith the suit, an application was filed seeking leave of the Court to file the suit. In reply, defendant Nos. 1 to 4 have alleged that the suit filed under Section 92 of CPC is not maintainable as there is no Trust either private or public. It was alleged that defendant No.1. is only a registered society having its registered office at Saryu Tat Dilasiganj, Faizabad, (U.P) and that the suit has been filed out of frustration as defendant No.6, who is the father of plaintiff No.1. is the attesting witness of the donation of the land in question regarding which donor had suffered a Civil Court decree dated 20.2.1992. It was also alleged that decree dated 20.2.1992 had earlier been challenged by cousin of plaintiff No.1 which was dismissed by the Civil Judge (Senior Division), Kurukshetra on 29.10.1999, the appeal filed against the said order also met with the same fate on 20.1.2003 and had become final between the parties. In nutshell, FAO No.1432of 2005 3 the defendants have challenged the maintainability of the suit on the ground that the property in dispute is not a Trust. The learned Court below, after considering the pleadings of the parties, came to a conclusion that defendant No.1. is not a Trust, therefore, the application filed under Section 92 of CPC was not found to be maintainable. Aggrieved against the said order dated 4.11.2004, the present appeal has been preferred. Learned counsel for the plaintiff/appellant has vehemently argued that the property in dispute was donated by Sher Singh, Nambardar alongwith a sum of Rs.18 lacs for the purpose of creating a Trust and since the affairs of the Trust are being mismanaged by respondent No.1 to 4, therefore, the plaintiff/appellant had rightly filed the suit under Section 92 of CPC but the Court below has committed a serious error of law in declining leave to file the suit. On the other hand, learned counsel for the respondent has argued that the suit has been filed by the plaintiffs to claim their personal rights. It is also submitted that the property in question was never created as a Trust by the donor. The appellants have failed to produce any document on record from which the Court could ascertain nature of devolution of the property in dispute by Sher Singh to defendant No.1. It is also submitted that a suit under Section 92 of CPC is only maintainable against a Trust and if the plaintiff fails to prove that the property in dispute is a Trust, application is not maintainable. I have heard both the learned counsel for the parties and perused the record with their assistance. Before adverting to the respective subsmissions of learned counsel for the parties, it would be worthwhile to refer to the relevant provisions of law, namely Section 92 of CPC, which is reproduced as FAO No.1432of 2005 4 under:- Section 92. “Public charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; (c)vesting any property in a trustee; [(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;] (d) directing accounts and inquiries; (e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863, (20 of 1863).{Ins.by Act 2 of 1951, s.13.} [or by any corresponding law in force in a Part B State] the territories which,immediatley,before the Ist November,1956 were comprised on Part-B State), no suit claiming any of the relief's specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:- (a) where the original purposes of the trust, in whole or in part,- FAO No.1432of 2005 5 (i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down,- (i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii)ceased to be, in law, charitable, or (iv)ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]” According to the aforesaid provisions, a suit under Section 92 of CPC is only maintainable in case there is no quarrel that the property in dispute is created as a Trust for public purpose of a charitable or religious nature. The Advocate General, or two or more persons having an interest in the Trust, can institute a suit whether contentious or not in the principal Civil Court of original juirisdiction or in any other Court within the local limits of whose jurisdiction the whole or any part of the subject- matter of the Trust is situate, to obtain a decree in respect of subjects mentioned in Section 92 ( (1) (a) to (h). In the present case, the suit is not filed by the Advocate FAO No.1432of 2005 6 General, but by some persons showing their interest in the property in dispute, which according to them, was created as a Charitable Trust, to obtain a decree in respect of subject mentioned in Section 92 (1) (d) to (g) of the CPC. But before such a decree could be passed or even leave to sue is granted, it is incumbent upon the Court to find out as to whether the property in dispute is a Trust created for public purpose for Charitable or religious nature because Section 92 is applicable only to a Trust of a Charitable or religious nature. In the present case, learned Court below has declined to grant the leave to sue under Section 92 of CPC principally on the ground that the plaintiff/appellant has failed to prove that defendant No.1. is a public Trust and the findings recorded in this regard by the Court below are reproduced as under:- “In the instant case Sher Singh grand father of plaintiff no.1 and father of defendant no.6 suffered a consent decree in favour of Manav Samaj Kalyan Kendra Bharat Branch, Kurukshetra through its founder Yogi Raj Swami Prema Nand in Civil Suit No.488/92 which was decided on 20.02.1992 and in view of the suffering of said consent decree dated 20.2.1992 defendant no.1 through defendant no.2 became owner in possession of the suit property and consequently in the revenue record the defendant no.1 through defendant no.2 has been shown as owner in possession. However, there is nothing on the file in order to show that defendant no.1 was a public trust which was a sine qua non and for granting permission under Section 92 CPC regarding mismanagement of affairs of public FAO No.1432of 2005 7 trust. During the course of argument it has been revealed that the said consent decree dated 20.2.1992 suffered by Sher Singh was challenged by his near blood relations but the same has been upheld finally and in the said litigation defendant No.6 Kanwar Singh has been acting as attorney on behalf of defendant no.1 but when he realized that the Suit property donated by his father has been held to be of defendant No.1- Trust, he has got the present suit filed through his son Gaurav Saini plaintiff no.1. Plaintiffs no.2 and 3 are not concerned with the suit property but they have been shown as having interest in the suit property whereas plaintiff no.4 Attar Singh is real brother in law of defendant no.6 Kanwar Singh and plaintiff no.5 was real Sadu (Co-brother-in-law) of defendant no.6 and plaintiff no.6 is close friend of defendant no.6. Therefore, it seems that Kanwar Singh defendant No.6 and Narender Singh who are the real sons of Sher Singh have now joined hands together in order to grab the trust property of defendant no.1 which was being managed by defendants no.2 to 4 and as such by filing the present suit private scores by Kanwar Singh in collusion with other plaintiffs were being settled despite the fact that the vesting of trust property in defendant no.1 has been upheld upto the Hon'ble Apex Court and as such in the present circumstances of the case, the provisions of section 92 CPC are not attracted which were meant for public trust and for redressal of public grievances”. FAO No.1432of 2005 8 There is no doubt that defendant No.1. in the Civil Suit No.488 of 1992 filed against Sher Singh on 25.9.1991 averred that defendant Sher Singh is a religious minded person having immense faith and love for defendant No.1, due to which he had orally agreed to transfer his self acquired land in question, which was already in possession of defendant No.1. on which he had constructed his Aasharam and his sons did not raise any objection about Ikrarnama/Tabdeel malkiat dated 29.7.1991. The suit was filed because revenue entries in respect of the land in question were still in favour of Sher Singh and were not corrected. It was, thus, prayed in that case that a decree for declaration be granted to the effect that the plaintiff (defendant No.1 herein) be declared to be owner of the land in question . In the said suit, written statement was filed by said Sher Singh on 11.2.1992 admitting all the averments made by the plaintiff and on the basis thereof, the following order dated 20.2.1992 was passed by the Civil Court.:- “The present suit was filed by the plaintiff for seeking declaration that he is owner of the suit land as mentioned in the prayer clause of the plaint. The defendant appeared and filed written statement admitting the claim of the plaintiff. The statement of the defendant was also recorded separately, wherein he admitted the claim of the plaintiff in toto. As such the parties are no more at issue, hence the suit of the plaintiff is decreed as prayed for. Decree sheet be prepared accordingly and the file be consigned to the record room”. FAO No.1432of 2005 9 According to the learned counsel for the respondent, Sher Singh had donated/transferred his self acquired property to defendant No.1. in the aforesaid Civil Suit No.488 of 1992 and had not created any Charitable or religious Trust. It is further submitted that the said judgment was challenged by cousin of the plaintiff by way of a Civil Suit in which he had lost up to the High Court. Transaction of creating a Trust is tripartite in which settlor is one party to the Trust who settles his property in trust for the benefit of others who become beneficiaries and the legal ownership of the property is transferred to the trusteees who would be third party to the instrument of Trust. In the present case, the question is as to whether any charitable or religious Trust is created by Sher Singh who was admittedly the owner of the land in question ?. As per Section 5 of the Indian Trusts Act,1882 (for short, the Act), a Trust in respect of immovable property shall come into being by a non testamentary instrumenmt in writing and signed by author of the Trust and shall be registered or it may be created by Will of the author of the Trust or of the Trustee. In this regard, Sections 5 and 6 of the Act are required to be noticed:- “5.Trust of immoveable property.- No trust in relation to immoveable property is valid unless declared by a non- testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee. Trust of moveable property.- No trust in relating to moveable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do apply where they would operate so as to effectuate a fraud. FAO No.1432of 2005 10 6.Creation of trust.- Subject to the provisions section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee”. It has been held by the Supreme Court in the case of Kuldeep Chand and and another Vs.Advocate General To Government of H.P. and others (2003) 5 Supreme Court Cases 46 that:- “a Hindu is entitled to donate his property for religiouis and charitable purposes where even no testamentary instrument in writing is necessary. A Hindu, however, in the event wishes to establish a charitable institution must express his purpose and endow. Such purpose must clearly be specified. For the purpose of creating endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees.” In the present case, as discussed above, Sher Singh (deceased) had simply donated his land and money to defendant No.1. without creating any Trust, rather in para No.2 of the palint of Civil Suit No.488 of 1992, it has been alleged by defendant No.1. that the land in question was transferred to him by Sher Singh on which he has constructed his Aasharam. This paragraph is admitted by Sher Singh in his reply, meaning thereby that there was no intention on his part to create charitable or FAO No.1432of 2005 11 religious Trust with the land donated to defendant No.1. Moreover, in the absence of any non testimentary document in writing creating a Trust or Will of the donor as provided under Section 5 of the Act coupled with the provisions of Section 6 of the Act, in my view, no public charitable or religious Trust was created by deceased Sher Singh and as such, the plaintiff/appellant had no right to file the suit under Section 92 of CPC.. In view of my above discussion, I find that there is no error in the impugnd order passed by the Court below. As such, the present appeal is hereby dismissed, however, without any order as to costs. July 28.2010 (Rakesh Kumar Jain) RR Judge