Case: ASHOK KUMAR GUPTA Vs. M/S SITALAXMI SAHUWALA MEDICAL TRUST

3. Original Suit No.566 of 2012 was filed by the present appellants in the Court of the District Judge, Coimbatore stating basic facts as under:-III. The 2 nd plaintiff is the wife of the 1 st plaintiff. The 1 st plaintiff is the elder son of defendants 2 & 3. The 4 th defendant is the younger son of defendants 2 & 3 and the 5 th defendant is his wife. The 6 th defendant is the daughter of defendants 4 & 5. The 7 th defendant is son in law of the family and he has married the sister of 1 st plaintiff and the 4 th defendant. The plaintiffs are Trustees of the 1 st defendant Trust and are persons having interest in the affairs of the Trust and are filing the present suit for framing a scheme for the administration of the 1 st defendant Trust, which is a Public Charitable Trust.      IV) The 2 nd defendant settled down in Coimbatore in 1959 and he was managing the firm called M/s India Roller Flour Mills. The 1 st plaintiff was academically a good student and he secured admission on merit in medical college and he graduated from Coimbatore Medical College completing MBBS. He pursued his studies further in post-graduation and completed his M.S. from Madras Medical College, Chennai, and is thus a qualified surgeon who 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 was envisaged as a charitable hospital. The 2 nd defendant as author of the trust established the 1 st defendant Trust, M/s Sitalaxmi Sahuwala Medical Trust, under registered Trust Deed dated 09.04.1980. A copy of Deed of Trust is produced herewith and the original is with the 2 nd defendant as also the rest of the documents.      VI) The objects of the Trust are set out in Clause I which briefly are to establish, maintain and render financial assistance and donations by establishing and assisting running of a hospitals, surgical homes; health trainings, nursing homes, maternity homes and dispensaries and to equip the hospitals and provide accessories and instruments etc.      VII) The plaintiff respectfully states that the 1 st defendant Trust was established with the aim and object of providing medical aid to the needy citizens. This was contemplated taking note of the fact that the 1 st plaintiff who became a qualified medical practitioner would look after the institution and administer the hospital where a part of the hospital can be run for charity and the 1 st plaintiff can have his consultations and in patients admitted to serve the people in society.      VIII) It is significant that the four trustees appointed under the Deed of Trust are both the plaintiffs and defendants 2 & 3 and they have been appointed for life. The 2 nd defendant is the Managing Trustee and the 1 st plaintiff was appointed as the Joint Managing Trustee, vide Clause 10.      IX) There was an amendment to the Trust Deed dated 09.04.1980 by another deed dated 23.03.1981. In addition to the objects, further objects for providing free education and conducting orphanages and help poor people perform marriages were introduced to the objects. But nothing of these additional charities were ever performed.      X) By another deed dated 15.03.1985, further objects were introduced to the Deed of Trust which have no relevance to the original objects. There was also an amendment to the Trust Deed by a registered deed dated 24.11.1986 providing for borrowing powers.      XI) The Trust purchased land measuring 33 Cents in Cowly Brown Road by a sale deed dated 08.04.1985 and a hospital was constructed and it was established by the 1 st defendant trust in 1987-88. The 1 st plaintiff was looking after administration of this hospital till the year 2003-04. The subsequent turn of events during the past one decade are narrated herein below……4. The events after 2003-04 were then adverted to, and it was elaborated that the 4 th defendant – brother of appellant No.1 who did not have any medical qualification or any expertise to run the hospital and manage the Trust had been in control of the Trust and the objects of the Trust were not getting fulfilled; and that the appellants were sought to be removed from the board of trustees. Finally, it was stated:-XXI. The plaintiffs submit that time has come for this Honorable Court to interfere with the affairs of the 1 st defendant Trust and to frame a proper scheme for administration of the Trust through competent men, so that the objects of the Trust are implemented. The defendants are converting the public charitable trust into a private family trust with rubber stamp trustees so as to enable them to make a living out of the trust properties and income from the Trust. The defendants are guilty of ignoring the objects of the Trust and in misappropriating the income earned by the Trust by suppressing its real income by converting the hospital into a business venture. A scheme requires to be framed for the following reasons:      1. The administration of the Trust should be in proper hands and the hospital should be administered by competent qualified Doctors.      2. No charity is performed by the 1 st defendant Trust and records are created and fabricated for the said purpose for the past 5 years. No free medical aid is provided and allowed to be provided. Only the 1 st plaintiff gives free consultation to patients.      3. No regular meeting of the Trust are conducted and no procedures are followed for proper conduct of meetings. No resolutions are passed and minutes are not recorded.      4. The real income derived by the Trust is not accounted and this is siphoned off for the personal use by Defendants 2 to 5. Cash collected is not deposited immediately on the following day but used by the 4 th defendant.      5. Trustees are appointed and removed according to the whims of defendants 2 & 4 and no democratic system is followed.      6. Complaints are frequently emerging from Doctors and Patients that the 4 th defendant is demanding and receiving kickback of various amounts involved and the 1 st plaintiff has been informed to watch out the activities of the 4 th defendant and to direct him to mend his ways, to preserve the reputation of hospital.      7. The defendants do not come and supervise the hospital on a day to day basis. The 1 st plaintiff is prevented from taking part in the administration and management of the hospital. Proper accounts are not maintained.      8. The defendants are thus guilty of mismanagement, misappropriation and they are guilty of committing breach of Trust and they are not fit to hold office. The 8 th defendant is the Banker for the 1 st defendant Trust and the 1 st defendant is operating its accounts with the 8 th defendant. The 8 th defendant is thus a proper party as the operation of account and withdrawals can be5. In the circumstances, the appellants prayed for following reliefs in said Suit:-a) By framing a proper scheme of administration for 1 st Defendant Trust namely M/s Sitalaxmi Sahuwala Medical Trust by removing the defendants 2 to 6 and appointing fresh trustees including the 1 st plaintiff and other trustees from the medical profession and from the public for proper and effective administration of the 1 st defendant Trust by vesting the properties of the 1 st defendant trust with the new trustees to be appointed.      b) Declaring that the appointment of the 6 th defendant as trustee is void and illegal and for consequential permanent injunction to restrain the 6 th defendant from functioning as a Trustee of the 1 st defendant trust.      c) For declaration that the procedure adopted to remove the plaintiffs from the Trust Board is void, illegal and mala fide and for consequential permanent injunction restraining the defendants 2 to 6 from removing the Plaintiffs from the Trust Board or reconstructing the Trust Board without leave of the Court.      d) For permanent injunction restraining Defendants from appointing the 7 th defendant as a Trustee and to restrain the 7 th defendant from acting as Trustees of the 1 st defendant Trust.      e) Directing the accounts of the 1 st defendant Trust to be audited by an independent Chartered Accountant and to surcharge defendants 2 & 4 to pay up to the 1 st defendant Trust any amount that may be found due from them to the Trust.      f) Appoint a Receiver to take charge of the assets of the 1 st Defendant Trust and administer the same and entrust them to the Trustees appointed as per Scheme.      g) Award cost of the suit to the plaintiff. h) Grant such other and further relieves as this Honourable Court may deem fit and proper in the facts and circumstances of the case6. Along with the aforesaid Suit, IA No.1416 of 2012 was filed by the appellants seeking leave to institute the Suit under Section 92 of the Code of Civil Procedure, 1908 (the Code, for short). By order dated 31.07.2012, the District Judge, Coimbatore granted leave under Section 92 of the Code. Soon thereafter Respondent No.2 herein filed IA No.1435 of 2012 seeking revocation of leave granted to the appellants vide aforesaid order dated 31.07.2012. It was stated, inter alia, that neither the application nor an affidavit in support of the application disclosed any proper reason for grant of such leave. The matter was contested. The District Court vide order dated 27.11.2012 held that the appellants had made out a prima facie case and there was no necessity to revoke the leave already granted. The District Court, thus, dismissed IA No.1435 of 2012 holding inter alia:18. In Para 18 of the plaint there is an allegation that the 4 defendant runs the hospital of the trust to earn his livelihood and siphoning off the income for his personal use. There was allegation to the effect that no meeting of trustees has been held for the past many years.      The defendants are not competent and qualified to administer the hospital. In para 9 it was alleged that the 6 th defendant was inducted as a trustee in violation of the provisions contained in the trust deed. No annual meeting was held for passing accounts and for appointment of auditor.      … … …      20. … In the case at hand, admittedly the 1 st plaintiff is a doctor. His qualification is Master of Surgery. 2 nd plaintiff is his wife. They are first trustees of the trust. It can be safely held that they are having interest in the trust. Therefore it cannot be said that the suit hasbeen filed by irresponsible persons. Admittedly the trust was created for public purposes. It has been brought to the notice of the Court that the objects of the original trust have been amended without any authority. The validity of the amendment can be gone into after trial. Likewise the amendment with regard to appointment of trustees can also be decided after conclusion of trial. In V .Rajasekaran vs. M. Rajendran(2007) I MLJ 683 it has been held that:Unless a strong case is made out, ordinarily the Court should grant leave so that the question can be considered in depth after evidence is recorded… … …      21. It is well settled that public charity is perpetual and the Court is the guardian of a charity. Having regard to the whole facts and circumstances of the case, I hold that the plaintiffs have made out a prima- facie case. Therefore, the leave granted by this Court to institute the suit cannot be revoked. The point is answered accordingly7. The respondents challenged the aforesaid decision of the District Court by filing Civil Revision being C.R.P. (PD) No.2708 of 2013 before the High Court. Soon thereafter another suit being OS No.1415 of 2013 was filed by the appellants along with their two sons seeking a decree for declaration that the amendment made under the Supplemental Deed of Trust dated 10.08.2012 be declared void and illegal. We are not presently concerned with said OS No.1415 of 2013.      8. The aforesaid Civil Revision was allowed by the High Court vide its judgment and order dated 30.04.2019 accepting the submission that the suit as framed was essentially to vindicate the private rights of the appellants and that the leave under Section 92 of the Code could not have been granted. It was observed by the High Court as under:22. From the above judgments, it is well settled that the main purpose of provision under Section 92 of CPC is to give a protection to public trust or charitable or religious nature, from being subjected to harassment by suits being filed against them and the Courts also to see that there is a prima facie case either breach of trust or of necessity of obtaining direction from the Court on the basis of allegation made in the plaint. If the allegation of breach of trust is not substantiated and the very foundation of the suit is based on the private rights, leave cannot be granted under Section 92 CPC. Similarly, Court can also go beyond the relief and have regard to the capacity in which the plaintiff has sued on the purpose which the suit was brought. Mere colour of legitimacy was sought to be given by projecting as if the suit was vindicating the public rights, leave cannot be granted. From the judgments of the Apex Court only the allegation in the plaint that should be looked into at the first instance whether the suit fall within the ambit of Section 92.      23. In the light of the above settled position now it has to be seen whether the suit has been filed to vindicate the public right or private right. No doubt the Trust is charitable trust. Only the allegations in the plaint to be looked into find out as to whether the suit is for vindicating the private rights or public right. On entire perusal of the plaint para 5 of the plaint, it is the contention of the plaintiff that the 2 nd defendant has decided to construct a hospital so as to enable the 1st plaintiff to carry on his profession. However, the hospital was envisaged as a Charitable hospital. In para 7 of the plaint it is the contention of the plaintiff that the 1 st Plaintiff can have his consultations and in patients admitted to serve the people in society. The plaintiff was looking after the administration of the hospital till the year 2003 and 2004. In para 11 and 12 it is pleaded how the 4 th defendant was inducted into the Trust and in para 13 it is pleaded as if 4th defendant slowly started to usurp powers and become a Joint Managing Trustee, though the plaintiff was looking after the administration of the hospital till the year 2003-2004. It is further alleged in para 13 that the 4th defendant has 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 the rent by cash and using it for his expenses. In para 15 of the plaint it is the contention of the plaintiff that 4 th defendant has been looking after the affairs of the hospital which was intended for medical practice of the first plaintiff. In fact, this allegation is contrary to earlier pleadings that he was managing the hospital in 2003-2004. The entire pleadings clearly indicate that the defendants have inducted the 3 rd defendants daughter and wife and there was also an agenda circulated by communication dated 23.07.2012 for the meeting proposed to be held on 09.08.2012.

Reasoning: 14. In the instant case, it is admitted that the concerned Trust is created for public purposes of charitable nature. The matter on that front is beyond any doubt. As regards the second condition, paragraph 21 of the plaint makes out a case that a public charitable trust was being run as a private family trust; that the object of the Trust was being ignored; and that there was necessity to frame a proper scheme for administration of the Trust through competent persons. The second condition also stands satisfiedInsofar as the third condition is concerned, the reliefs prayed for are diverse which include inter alia framing of a proper scheme of administration, for removing certain trustees and appointment of fresh trustees from medical profession and from public and for other ancillary reliefs. It is true that the reliefs prayed for include a relief where the first plaintiff is also being sought to be included as one of the trustees along with other trustees from medical profession and from public, for proper and effective administration of the TrustIn the present matter, the appellant No.1-first plaintiff, as a qualified medical professional, was associated with the Trust and what is being complained is that the appellants have been removed from the board of trustees and none of the present trustees are from medical profession. It is in that context that the principal relief prays for framing of a proper scheme of administration and for appointing trustees from medical profession and from the public for proper and effective administration of the Trust. The expression including the first plaintiff has to be understood in the context that the first plaintiff, as a qualified medical professional, was associated with the Trust right since the inception but now stands removed. The relief prayed for cannot be said to be in the nature of vindicating personal rights of the first plaintiff. What was prayed was for framing of a proper scheme of administration so that the Trust which was founded with the object of making available medical and related services to the general public could attain and achieve all its objectives through trustees who are themselves well qualified to undertake such responsibility17. Viewed thus, the conclusion arrived at by the Trial Court in para 21 as quoted hereinabove, was quite correct and the matter did not call for any interference by the High Court. It is true that certain paras of the plaint do indicate the grievances that the appellant were completely side- lined while the control of the Trust was in the hands of the concerned defendants. The allegations highlight that the Trust was not being managed properly, was not being managed by medical professionals and there was siphoning of funds. However, the substance of the matter discernible from para 21 as well as the principal relief claimed in the suit is quite clear that what was being agitated were the public rights. If in respect of a trust which had set up a hospital, a request was made for framing of a proper scope of administration by appointing trustee from medical profession and from public for proper and effective administration of the Trust, the matter would definitely fall within the scope of Section 92 of the Code.