Case: Charan Singh And Anr Vs. Darshan Singh And Ors

1952 SC 143 ) it was pointed out at page 517 by Mukherjea, J. as he then was, speaking for the Court.,"A suit under Section 92, Civil P. C., is a suit of a special nature which presup poses the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil P.C. As was observed by the Privy Council in 55 Ind App 96 = (AIR 1928 PC 16 ) a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, Civil P.C."In a very recent, decision, this Court speaking through one of us (Mathew, J.) in the case of Swami Parmatmanand Saraswati v. Ramji Tripathi, (1974) 2 SCC 695 = (AIR 1974 SC 2141 ) has reiterated the same view in paragraph 10 at page 699 = (at p. 2144 of AIR) wherein it has been further added."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."10. Mr. B. P. Maheshwari, learned counsel for the respondents placed strong reliance upon a decision of the Patna High Court in Ganpat Pujari v. Kanaiyalal, AIR 1933 Pat 246 and the decision of this Court in Harendra Nath v. Kaliram Das, (1972) 2 SCR 492 = (AIR 1972 SC 246 ). In the Patna case the first relief asked for in the suit was for an adjudication of the property in the suit belonging to the general public and for a declaration of their right to that effect. The Thakurbari in question was claimed to be a public property to which the entire Hindu community was entitled to go and worship. The appeal arising not of the suit came up before Wort and Fazl Ali, JJ. as they then were. There was a difference of opinion as to the application of Section 92 of the Code between them, the latter taking the view that Section 92 of the Code was not a bar. On reference to the third learned Judge, Kulwant Sahay, J. agreeing with the view of Fazl Ali, J. held that the relief claimed in the suit was not covered by clauses (a) to (h) of Section 92. The facts of the instant case are different and the Letters Patent Appeal Bench of the Punjab High Court committed an error in applying the ratio of the Patna case to the facts of the present case. In (1972) 2 SCR 492 = (AIR 1972 SC 246 ) (supra), Grover, J. delivering the judgment of this Court referred to the analysis made by the High Court as to the reliefs claimed in the plaint of that suit. In the main there were 4 reliefs as enumerated at pages 498 and 499 of the report = (at p. 250 of AIR). Reliefs (1), (2) and (4) were clearly outside the scope of Section 92 of the Code. Learned counsel for the respondents submitted that relief No. 3 which was very much akin to the relief in the present suit was also held to be a relief not covered by any of the clauses of sub-section (1) of S. 92 of the Code. In our opinion the contention is not sound and cannot be accepted. The third relief in that case as analysed by the Court was in the following terms:(3) "For a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and that they had a right to access to the use of the Satra for various religious purposes."11. There were two parts of the said relief - one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under S. 92 of the Code and since it was not filed in conformity with the requirement Of the said provision of law it was not maintainable.The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. It is well-settled that a suit of the nature envisaged by Section 92 (1) of the Code to obtain a decree for any one or more of the reliefs enumerated in clauses (a) to (h) of the Code has to be filed by the Advocate-General or two or more persons having an interest in the Trust with the consent in writing of the Advocate-General. Sub-section (2) provides that save under certain circumstances "..................no suit claiming any of the reliefs 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." Out of the 3 conditions which are necessary to be fulfilled for the application of Section 92, two are in disputably present in this case viz. (1) the suit relates to a Public Charitable or Religious. Trust; (2) it is founded on an allegation of a breach of trust and the direction of the Court is required for administration of the trust. The debate and dispute between the parties centered round the requirement of the fulfillment of the third condition namely whether the reliefs claimed are those which are mentioned in sub-section (1) of S. 92 of the Code. A suit may be instituted under Section 92 (1) 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) authorising 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.7. The High Court in the Letters Patent appeal has taken the view that the relief sought for in the suit does not fall under any of the clauses (a) to (h) of Section 92 of the Code. Learned counsel for the appellant has assailed this view and submitted that the relief sought for falls under clause (e) or (g) or in any event under clause (h).In our judgment the relief sought for in this case does not strictly or squarely fall within clause (e) or (g) but is very much akin to either and hence is covered by the residuary clause (h).There were two parts of the said relief - one a declaration that the plaintiffs as Bhakats of the Satra were entitled to possess their own Basti and paddy lands and the other that they had a right to access to the use of the Satra for various religious purposes. Such a relief could not come under clause (h) because it was mainly concerned with the establishment of the rights of the plaintiffs in the lands as well as in the religious institution. In the plaint of the instant case the relief claimed is not primarily for the establishment of the right of the public to the religious institution. It recites the facts as to the right without mentioning any appreciable dispute concerning it, mainly alleges breach of duty on the part of the trustee and the plaintiffs seek the Courts aid against the trustee for forcing him to discharge his obligations by due performance of his duties. In our judgment therefore the Courts below were right in taking the view that the present suit was a suit for a decree under S. 92 of the Code and since it was not filed in conformity with the requirement Of the said provision of law it was not maintainable.The contrary view taken by the Division Bench of the High Court in the Letters Patent Appeal is not correct.