The application has been filed seeking leave to sue under Section 92 of Civil Procedure Code, hereinafter referred to as ' CPC '.

2. The plaintiffs 1, 2 and 4, being Office bearers of the 3rd plaintiff Society claim themselves as persons working towards upliftment of the poor and needy in and around the City of Madras. The 3rd plaintiff is a registered Society, claim to be constantly involved in taking up issues relating to defalcation of Trust properties belonging to the Christian Community. The 3rd plaintiff also claim credit for organising the Joint Christian Action Council Convention in Chennai on 20.11.2016, chaired by Mr.Justice K.J.Thomas, former Justice of the Supreme Court of India on the topic of a law to govern the use of Church property.

3. According to the applicants/plaintiffs, the 1st defendant was a Trust constituted pursuant to the last will and testament of one John De Monte, a successful businessman of a Portugese origin. He had come to India in 1777 and in due course, he had accumulated extraordinary wealth https://www.mhc.tn.gov.in/judis 4 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 in and around Chennai. On 19.07.1820, Mr.John De Monte, then aged 56 had written his last Will and Testament. After writing the Will, Mr.John De Monte, passed away in Madras in 1821. His body was taken to Mount Carmel Chapel, Covelong and interred there in accordance with his wishes. The probate of his last Will and Codicil was also granted by the erstwhile Supreme Court of Madras vide proceedings dated 28.09.1827. The 1st respondent Trust was constituted pursuant to the Will and Testament of Mr.John De Monte.

4. After the death of Mr.John De Monte, the vast estate stood vested in the executors of the Trust and the properties to be used towards public charity as outlined in the Will. According to the applicants herein, during his life time, he had found several religious and charitable Institutions like Hospital and Charity House at Luz, the Church at Covelong, the Church at Poonamallee etc. The Trust properties include, two prime and valuable properties in the heart of Madras City in Benz Garden at R.A.Puram and De Monte Colony at Alwarpet. These properties were also covered under the Will and Testament of Mr.John De Monte. According to the applicant, the original extent of the properties was around 105 acres but this had shrunk to 690 grounds in 1950's.

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5. Earlier, the Trust Properties were found to be not managed properly owing to mal-administration, forcing a reputed former Civil Servant, one Mr.L.M.Menezes and others to file C.S.No.156/2002 before this Court seeking permission under Section 92 CPC. to sue the Trust. The Suit was filed to frame a Scheme for proper administration of the Trust of Mr.John De Monte. It appeared, earlier leave was granted under Section 92 CPC. in Application No.567/2002 and an interim injunction also appeared to have been granted, restraining grant of any long or short lease of the properties belonging to the Trust. Subsequently, the leave which was granted by this Court under Section 92 CPC., was revoked by the learned Judge of this Court in response to the application No.3081/2002 filed by the respondents/ defendants. As against that O.S.A.No.83 and 129 of 2003 had been filed and the Division Bench of this Court, by order dated 22.12.2003 dismissed O.S.A.No.83 of 2003 and allowed O.S.A.No.129 of 2003.

6. The matter, thereafter, went up to the Hon'ble Supreme Court in C.A.No.3052 of 2006. An affidavit was filed on behalf of the 2nd respondent herein dated 24.11.2011 to the effect that being the sole trustee of Sir John D'Monte Trust, he will not dispose of or part with or lease or https://www.mhc.tn.gov.in/judis 6 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 deal with the properties of the DeMonte Trust in any manner to the detriment of the trust, unless necessary permission is obtained from the Competent Court, under Section 7 of The Charitable and Religious Trusts Act, 1920. On the basis of the undertaking affidavit, the Hon'ble Supreme has passed an order on 14.12.2011 directing the parties to abide by the undertaking.

7. In the brief factual backdrop as above, another application presently has been filed by the plaintiffs herein, questioning the administration of the trust properties by the respondents 1 and 2/ defendants in the suit.

8. Mr.V.Raghavachari, the learned counsel appearing for the applicants/plaintiffs, at the outset, would draw the attention of this Court to various averments contained in the plaint starting from paragraph 9 to 18 pointing out various irregularities and illegalities committed in the administration of the properties belonging to the trust. According to the learned counsel, the 2nd respondent/ defendant has illegally entered into long lease of property of nearly 150 grounds in Boat Club Road and Chamiers Road in favour of one Sathyabama Institute of Science and https://www.mhc.tn.gov.in/judis 7 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Technology and Holy Satellite Town Limited and put them in possession. Facing criticism and legal action against the transactions, the 2nd respondent appeared to have filed O.P.Nos. 219 and 220 of 2002 before this Court under Section 7 of the Charitable Endownments Act, 1890. According to the learned counsel, this Court, vide its order dated 06.03.2006, found that the grant of lease to these entities was vitiated by fraud and no sanctity could be attached. Despite the order of the Court, the two Companies continued to illegally occupy the lands for several years.

9. The learned counsel has also pointed out the undertaking given before the Hon'ble Supreme Court of India in Civil Appeal No.3052 of 2006 that the 2nd respondent trustee would not lease the properties or deal with the same, without approaching the Court seeking permission for the same. After the undertaking was given before the Hon'ble Supreme Court, the Court has disposed of the appeal on that basis. The 2nd respondent, immediately thereafter resiled from his undertaking given before the Hon'ble Supreme Court, brazenly entered into a lease agreement with one M/s.Shri Nidi Holding for the lease of a property at Old Door Nos.129 and 130, New Nos.149 and 151, De Monte Colony, T.T.K.Road, Alwarpet, Madras, on 18.01.2012. There was some dispute between the contracting https://www.mhc.tn.gov.in/judis 8 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Company, which resulted in filing O.P.No.638 of 2014 under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of an Arbitrator. According to the learned counsel, O.P. which came up before the Hon'ble Chief Justice of this Court, as he then was, while allowing the O.P. and appointing an Arbitrator eventually, has remarked that the execution of the lease deed on 18.01.2012, and the subsequent endeavour to invoke Section 7 of the Trust Act, 1920 intended to avoid the consequence of breach of undertaking given before the Hon'ble Supreme Court by the 2nd respondent.

10. The learned counsel further pointed out that an another transaction wherein while leasing of 15 grounds at Benz Garden, no proper procedure was followed, as the 2nd respondent as a trustee had unilaterally identified a firm in Bangalore called Nithish Estate. The trust appeared to have offered Rs.630 crores for development of the leased land and only a paltry sum of Rs.5 crores was collected and the balance was stated to be paid within a stipulated period. Unfortunately, Nithish Estate failed to honour its commitment and instead, engaged the trust in needless and avoidable litigation. The 2nd respondent/ defendant, instead of contesting the claim had agreed to pay Rs.15 Crores to the firm and a resolution was also passed on 29.11.2010 and ultimately, the trust suffered loss to the tune https://www.mhc.tn.gov.in/judis 9 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 of Rs.10 Crores in the bargain.

11. The learned Counsel has also pointed out the valuable property in Covelong which formed part of the trust had been usurped by a fictitious body called the Roman Catholic Diocese of Chenglepattu Society, the 3rd respondent herein. The so-called Society filed O.S.No.20 of 2014 before the Principal District Court, Chenglepet seeking declaration that it is an independent religious society and was therefore, entitled to mutate the revenue records of all the properties which included the properties belonging to the 1st respondent Trust. Ironically, the 1st respondent was not made as a party in the suit proceedings in the Chenglepet Court. The fictional body, the plaintiff therein is functioning from the address of the 2nd respondent Arch Bishop. When action was taken, resisting the suit by the well-wishers of the trust, the 5th respondent/defendant advised the Diocese of Chenglepet Society to abandon the suit and the suit was eventually dismissed for non-prosecution on 14.10.2015.

12. The learned counsel further pointed out gross irregularities in leasing out 389 grounds for 99 years to the 6th respondent/ Stella Maris College, for a paltry sum of Rs.5000 per quarter which worked to .002 https://www.mhc.tn.gov.in/judis 10 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 naya paise per square foot. According to the learned counsel, the College collected substantial fees from the students and there was no need to collect such a low lease amounts from the College. The learned Counsel added that leasing out a huge landed property in the heart of the City to the profit making College for a paltry sum is contrary to the express Will of Mr.John De Monte.

13. The learned counsel further pointed out that the 7th respondent/ defendant is a Hospital being established for charitable purpose was suppose to cater to the poor and the needy. But unfortunately, it turned out to be a money spinner and no money is being paid by the 7 th respondent to the trust for years together. The learned counsel contended that no poor or needy gets any treatment free of cost in the hospital.

14. The learned counsel has also drawn the attention of this Court, the Will left behind by late. Sir John De Monte, as per which the 2nd respondent/defendant, must administer the Trust Committee along with the Committee of Syndics. However, over a period of time, the 2nd defendant arrogated to himself the entire power and control of the estate and started calling himself as the sole trustee, which is against the intention of the https://www.mhc.tn.gov.in/judis 11 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 testator. According to the learned counsel, there have been series of action taken by the persons at the helm of affairs in the trust, contrary to the avowed charitable objects stated in the Will dated 19.07.1820. The properties of the trust have been subjected to transactions towards furtherance of the personal ends of the 2nd respondent and therefore, the Suit has been filed for framing of a scheme for proper administration of the trust properties of the 1st respondent Trust.

15. The learned Counsel Mr.V.Raghavachari while developing his arguments referred to the last Will and Testament of Mr.John De Monte dated 19.07.1820 and would draw the attention of this Court, wherein the testator has outlined several uses and purposes in relation to the use of the properties to be left behind by him as per his wish. For the purpose of consideration of this Court, the learned counsel referred to Clauses No.29, 30, 31 and 33 which are extracted hereunder Twenty Ninth - It is my further Will and desire to have another Hospital and Charity House at Covelong, on the same plan as the one founded at the Luz, and which if not accomplished before my death. I desire that my Executors shall within two years after my decease make a separate Fund of Fifteen Thousand (15,000) Star Pagodas from the Government https://www.mhc.tn.gov.in/judis 12 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 securities belonging to my Estate and that the interest arising therefrom shall be applied towards defraying the expenses of the intended Hospital and Charity House and the surplus (whatever it may be) to go for the use and benefit of the Seminary and School at Covelong and I request that this Establishment be kept under the care and superintendence of my wife, and the Head Ministers and Masters of the Seminary, who are now or may hereafter be appointed for the Church of Covelong – But the Bishop of St.Thome will have the power of making Rules and Regulations for conducting the same. It is also my Will and desire that a sum of Three Thousand (3,000) Star Pagodas be laid out and expended for building and erecting a proper Hospital and Charity House at that place, for the aforesaid purpose.

Thirtieth – Having left the aforementioned Charitable Institutions principally under the control and management of the Bishop or Vicar General of St.Thome, and allotted sufficient Funds for keeping and maintaining them in a decent and respectable way – it is now particular desire and request that the Bishop or Vicar General and his successors who may receive the interest monies of the said funds will be pleased to render an account of the receipts and disbursements annually to the Archbishop of Goa, and also to my Executors and the Survivors of them, and I further request that the Bishop or Vicar General for the time being in conjunction with my Executors will have the kindness to nominate and appoint https://www.mhc.tn.gov.in/judis 13 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 annually a Committee of Syndics, consisting of six Pious and Respectable Persons, three of whom shall be Clergymen, who may hold the situation of Vicar at some of the Churches of St.Thome, Luz, and St.Thomas's Mount; and the other three to be Seculars of Roman Catholic Religion, who are to act jointly with the Bishop or Vicar General, for managing and conducting the affairs of the different Trusts by a regular method, that they will employ a faithful Clerk for keeping proper accounts of those Institutions, and that the salary and other expenses, & c., be paid from the said Funds and I further request that copies of the accounts be annually forwarded for the approval of the Archbishop of Goa for the time being, who I beg and beseech as a particular favour to inspect the same with every attention, and he is hereby fully authorized to correct all abuses or misapplication of the Property which may appear to him to be contrary to the intentions herein expressed – I have taken all these precautions with a view to procure those Funds and Property for as long as it may please the Almighty God, the author of all good, to favour and continue the said Institutions which I have founded through his infinite power and mercy, solely for his honour and glory and not from any vanity of this world.

Thirty first – The rest and residue of my Estate in money and securities, together with the Interest which may accumulate thereon, as well as all my landed property, consisting in Houses, Gardens and Grounds (not hereinbefore https://www.mhc.tn.gov.in/judis 14 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 given or disposed off). I give and bequeath the same to my Executors-upon Trust to be, and remain under their control and management, and that the Interest arising from the money, and Securities together with all the rents and profits of my Houses, Garden and Grounds, I desire to be applied as follows-that is to say, that the Bishop or Vicar General of St.Thome for the time being, and his successors shall receive all the aforesaid, interest, rents, and income of my property as they become due, and that he will with the advice and approbation of the Majority of the Committee, or Syndics who may be appointed after my death to act with him jointly, for the management of the Charitable Funds as hereinbefore directed, distribute the same in Charity every three, six, or twelve months, to those persons who are related to me and my said wife (and not provided for by this my Will) and who are or may be reduced to a state of Poverty, and to all those who are now receiving monthly Pensions from me, as will appear by a List in my Book, and also to all poor Orphans, Widows and distressed Families who may be objects of charity, and most deserving, and also to contribute for Charity Schools – and as I have entirely left the said distribution to be made according to the best of their judgment, I trust that it would be done in a fair and conscientious manner, and without any partiality whatever; otherwise they will have to answer before God for any improper use that may be made of them.

https://www.mhc.tn.gov.in/judis 15 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 ...

Thirty third – I do hereby Will and appoint my said worthy Friends George Arbuthnot, James Morgan Strachan, John Binny and William Scott and also the said Emmanuel Bilderbeck and Joseph Bilderbeck when the two last shall attain their respective age of Twenty-five years, together with the Bishop or Vicar General of St.Thome, for the time being, and his successors, to be the Executors and Trustees of this my last Will and Testament – and it is my further desire, that on the death or absence from Madras of the said George Arbuthnot, James Morgan Strachan, John Binny, William Scott, Emmanuel Bilderbeck and Joseph Bilderbeck, then the entire control and management of all the affairs of my Estate are to devolve on the said Bishop or Vicar General for the time being and his successor and successors in the Bishopric of St. Thome for ever – and he is to be considered as my permanent Executor and Trustee – (but upon the same conditions as hereinbefore mentioned) without his being under the necessity of applying for or obtaining, Probate of Administration – and that upon his taking charge of my Estate, Monies and Effects (after the death and absence of my other Executors and Trustees as aforesaid) he, as well as his successor and successors shall under the present provision exercise the same power, privileges, and authorities, and the discretion of paying, receiving, calling in, investing and reinvesting, maintenance and distributing, and of giving and granting https://www.mhc.tn.gov.in/judis 16 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Receipts and discharges, and all other power and authorities whatsoever, as if he had actually obtained Probate or Administration of my Estate and Effects.

16. According to the learned counsel, the 4th respondent, namely Archbishop of Goa, was also named as one of the Executors of the Will and he was also to be involved in the administration of the trust properties jointly with the other executors. The 30th clause in the Will specifically state that the persons named therein to act jointly with the Bishop or Vicar General i.e., the 2nd respondent herein. But in none of the transactions, the 4th respondent was ever involved. Likewise, there are several other matters where the 2nd respondent has acted against the wish and will of the testator completely in contravention of the last will and testament of Mr.John De Monte.

17. The learned counsel proceeded to refer to the order dated 14.12.2011 of the Hon'ble Supreme Court in C.A.No.3052/2006, particularly, paragraph Nos.8 to 11 which are binding on the parties. The said paragraphs are extracted hereunder.

8.During the pendency of the appeal in this Court, on the last date of hearing i.e., 15.11.2011, we had asked the learned Senior counsel appearing for respondents if respondent No.2 https://www.mhc.tn.gov.in/judis 17 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Arch Bishop of Madras, Mylapore would be in a position to give an undertaking in the form of an affidavit to show that he will neither dispose of nor part with or create any lease or deal with in any other manner with the properties of the Trust to its detriment, unless necessary permission as contemplated under Section 7 of the Act is obtained. Further direction was given to file an undertaking that the aims and objects and the purposes for which the Trust was created would be fulfilled and the last wish of the Testator would be kept in mind.

9. Pursuant to the aforesaid order having been passed by this Court on 15.11.2011, an affidavit by Respondent No.2 has been filed. The relevant portion of the said affidavit is reproduced hereinbelow:

10. After this affidavit was filed in the Court by Respondent No.2, Appellants have also filed additional affidavit bringing new facts to the notice of this Court. However, those new facts mentioned in the additional affidavit, https://www.mhc.tn.gov.in/judis 18 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 do not form part of this litigation and at this stage, it is not proper to enlarge the scope of this Appeal.

11. After having gone through the Affidavit of Respondent No.2 and the additional Affidavit of the Appellants, we are of the considered opinion that looking to the stature of Respondent No.2, it can reasonably be expected that he would abide by the aforesaid undertaking mentioned in the Affidavit and there is no reason to doubt the bona fides of Respondent No.2."

18. A glaring violation of the above undertaking given before the Hon'ble Supreme Court, was the act of entering into lease agreement with one M/s. Shri Nidhi Holdings on 18.01.2012, without obtaining any permission from the competent Court. In the teeth of the above demonstrated irregularities, the plaintiffs being actively in the forefront of protecting the interest of trust properties belonging to the Christian community, they are before this Court. According to the learned counsel, the applicants/ plaintiffs having pleaded their bonafide interest, are interested persons entitled to seek leave before this Court under Section 92 CPC. If the leave that is sought in this application is granted, it will pave way for framing a scheme for proper administration of the trust properties worth thousands of crores, as per last wish and will of late Sir John De https://www.mhc.tn.gov.in/judis 19 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Monte.

19. On behalf of the 1st respondent Trust, Mr.Vijay Narayan, learned Senior Counsel, has made his submissions as follows:

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ii) The learned Senior Counsel referred to the learned single Judge's order dated 06.01.2003 reported in AIR 2003 Madras 241( L.M.Menezes and ors v. Most Rev.Arul Das Jamas and ors ). Although earlier, in application No.567 of 2002, leave was granted by the Court, but subsequently, the learned Judge, on reconsideration and taking into account the objection of the respondents, revoked the leave. The learned Judge held that the applicants/plaintiffs therein were not interested persons in terms of Section 92 CPC. Finally, the leave was revoked and the application for revocation was allowed. The learned Single Judge has revoked the leave on two grounds that is, one, the applicants therein cannot be construed as interested persons as contemplated under section 92 CPC. and two, the trust was not made a party and such defect was incurable.

20. The learned Senior Counsel, in extenso, referred to and relied on the decision of the Division Bench reported in 2004(1) CTC 321 ( Menezes L.M. v. Rt.Rev.Dr.Lawrence Plus ) in O.S.A.Nos.83 & 129 of 2003 dated 22.12.2003. The said Appeals were the result of the order of the learned Single Judge above, revoking the leave. According to the learned Senior Counsel, the Division Bench has exhaustively dealt with the facts and various case laws rendered on the subject matter by the Courts at various https://www.mhc.tn.gov.in/judis 21 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 points of time. The learned Senior counsel, particularly referred to paragraph Nos.9 to 11, which are extracted hereunder.

9.In support of his argument, the learned Senior Counsel relied upon the following judgments:

Ramji Tripathi and another, AIR 1974 S.C. 2141, wherein the Apex Court held thus:

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 bona fidely; 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 1.9.1996, calling for project management consultants and after going through the offers the committee short listed 12 firms and called upon them to present their proposal; out of 12 firms, only six firms responded; thereafter, meetings were held https://www.mhc.tn.gov.in/judis 26 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 on 8.3.1997, 29.4.1997, 11.6.1997, 26.6.1997 and 12.7.1997, 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 4.3.2002.

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 https://www.mhc.tn.gov.in/judis 27 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 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. The above extraction would demonstrate the legal principles canvassed on behalf of the 1st and 2nd respondents herein. The Division Bench however, found that the persons who instituted the suit therein were not interested persons in terms of Section 92 CPC. and also held there were acceptable explanation against the allegations of the irregular transactions. After adverting to various case laws, the Division Bench finally, dismissed O.S.A.No.83 of 2003 which was filed against the revocation of leave by the learned single Judge's and allowed O.S.A.No.129 of 2003 which was filed against the learned single Judge order of dismissing the application for not making the Trust a party to the proceedings. In paragraph Nos. 29 and 32, https://www.mhc.tn.gov.in/judis 28 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 the Division Bench held as under.

29.From the above judgments, it is clear that interest of a person has to be determined on the facts appearing on the relationship of the person to the Trust, with reference to which the suit is brought. No doubt, each and every case has to be decided on the facts and circumstance. On careful perusal of the pleadings and documents placed before the learned Single judge, which were indeed placed before us also. Even though the first appellant held office of the Member of Property Committee of the Trust/Church, it is not sufficient to satisfy the ingredients of Section 92 , CPC. The judgment of the Honourable Supreme Court reported in Swami Parmatmanand Saraswati and another v. Ramji Tripathi and another , AIR 1974 SC 2141 cautions that the suit should be to vindicate the right of the public and not the right of an individual persons. Hence, we hold that the appellants are not interested persons.

30.Leave must precede the institution of suit. Prior to granting leave, there can be no suit. Leave is essentially a matter of discretion. When trustees are able to satisfy the Court that there is no evidence to support the allegations or that evidence is not sufficient or the intention of the parties are not bona fide or that action is being initiated for selfish personal ends and not with the object of any public good, it is open to the Court to revoke the leave. The Court has to take an objective decision on consideration of facts of each case. The https://www.mhc.tn.gov.in/judis 29 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Court should go into the questions of bona fide of plaintiffs and their capacity to represent the public and also see whether they are really interested in the Trust and are not those whose motives are impure. After appearance, the defendants may ask for revocation of leave and where the plaintiffs have failed to prove that they have any interest in the Trust, ex parte leave is liable to be revoked. The learned single Judge taking into consideration of the facts and circumstance of the case found that though the respondents are respectable persons in the locality, they are not persons interested in the trust as contemplated under Section 92 , CPC and revoked the leave.

31. There is no impediment in impleading the Trust as a party after leave has been obtained. In the decision reported C.R.Neelakantan and another v. G.Bakthavatsalam 1967 (1) MLJ 29, a learned single Judge of this Court held that adding the trust as a party is merely a formal and it does not alter the nature of the suit as such further leave is not necessary. We concur with the said view.

32. Hence, the finding of the learned single Judge dismissing the petition to implead is set aside, however, we confirm the order of the learned single Judge revoking the leave. In view of the confirmation of the order of revocation of leave, the appellants herein do not get any remedy consequent to the setting aside of the impugned order of dismissal of implead petition. However, it is made clear that the trial Court, while deciding the O.P. No. 219 and 220 of 2002 need https://www.mhc.tn.gov.in/judis 30 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 not take into consideration any of the observations made in these appeals and decide the petitions on their own merits.

21. Apart from the conclusion of the Division Bench on the aspect of whether the persons instituted the suit were interest persons in terms of Section 92 CPC, the Division Bench has also found that there was no evidence or sufficient evidence to establish or support the allegation of any irregularities committed by the trustee in dealing with its properties. He would refer to paragraph Nos.24 to 27, which are extracted hereunder.

24.The 2nd respondent has filed the O.P. in February 2001 seeking permission of the original side of this Court. The first appellant has chosen to file caveat and objections immediately; but waited for one year to file the present suit after obtaining leave on 27.2.2002. The said fact was brought to the notice of this Court by Mr. T.V. Ramanujam, learned Senior counsel to justify that the appellants herein, without any valid reasons have prevented the Trust from carrying out its objectives.

25.It is seen that long term lease and sale of property to the Management of Stella Mary's College and Parry & Co., respectively were made with the permission of the Court, but the appellants herein have alleged as if the 2nd respondent or his predecessor have https://www.mhc.tn.gov.in/judis 31 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 unilaterally leased out or sold the property. No valid averments of mismanagement or mal-administration has been made out in the plaint.

26. A suit under Section 92 , CPC is primarily against a Trust and can only be instituted on the ground there was breach of trust and the directions of the Court is deemed necessary for the administration of the Trust. The plaint must aver one or other grounds and it is such allegation that gives the Court jurisdiction under Section 92 , CPC. In this case, we do not find any such allegation of mismanagement. It is seen from the prayer of the suit that a luxurious relief like (i) rendition of account by the erstwhile and present trustees till the date of decree - but without mentioning the period (ii) directing recovery of all monies dues to the trust - without mentioning the parties (iii) directing identification of all the trust properties (iv) directing recovery of all properties belonging to the Trust currently not in the possession of the Trust, has been sought on vexatious allegations. It is also necessary to mention that the sole Trustee of the Demonte Trust is Arch Bishop Madras-Mylapore and his successors. Successive Arch Bishops have managed the property of the Trust during their tenure, but appellants have not specified any of them. Similarly, the vexatious prayer for rendition of account by erstwhile and present trustees https://www.mhc.tn.gov.in/judis 32 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 ‘till the date of decree’ without mentioning the date of commencement of the period has been made. The use of the word ‘instituted’ in Section 92 makes it incumbent on the Court to see what the prayers were in the plaint at the date when the suit was instituted, in order to satisfy itself whether Section 92 has been complied with. After seeing the plaint, one can easily say that the suit has been filed only to harass the Trust.

27.The words ‘persons interested’ is incorporated with the object of preventing the people interfering with the administration of charitable Trust without any real interest. The interest required must be a clear and substantive interest in the particular trust, but not merely a remote, fictitious or contingent one.

22. The Division Bench has held that though the appellants were respectable persons being former Civil Servants, as observed by the learned Single Judge, they were eventually said to be not interested persons as contemplated under Section 92 CPC. The Division Bench has further held that when the trustees were able to satisfy the Court that there was no evidence to support the allegations or the evidence was not sufficient or intention of the parties were not bonafide, it was open to the Court to revoke the leave. The Division Bench finally concluded as it could be seen https://www.mhc.tn.gov.in/judis 33 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 above that the suit has been filed only to harass the trust.

23. The learned Senior Counsel would also submit that as far as the properties said to have been given away to a fictional body called Roman Catholic Diocese of Chenglepet, the 3rd respondent/ defendant herein the schedule property mentioned therein at Covelong in O.S.No.20 of 2014 was not part of the 1st respondent trust at all. The disputed property therein in fact was part of the properties belonging to the 2nd respondent and nothing to have with 1st respondent Trust. Unfortunately, the applicants herein, without knowing the basic facts have mixed up the schedule properties mentioned therein with the trust properties. In the entire plaint, in the above suit, one cannot find any reference to the De Monte Trust. The learned Senior Counsel would also demonstrated that the survey numbers as mentioned in the schedule property in the suit and the survey numbers relating to the trust properties located at Covelong are different and clearly distinguishable.

24. The learned Senior Counsel would reiterate that all the allegations had already been dealt with in the earlier litigations. The allegations in paragraph No.8 of the affidavit filed in support of the https://www.mhc.tn.gov.in/judis 34 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 application regarding lease of property of 150 grounds in Boat Club and Sathyabama Institute of Science and Technology and Holy Satellite Town Limited was recalled and money was returned by passing a resolution in the trust on 29.11.2010. Therefore, the same allegation cannot be raised in the present application once again. Regarding the lease of properties measuring about 11.65 grounds in Benz Garden, the same was done in terms of the direction dated 18.04.2018 by this Court in O.P.No.648 of 2018. The applicants, in respect of the above transaction cannot make an issue out of that transaction.

25. According to the learned Senior Counsel the allegation in respect of lease in favour of Stella Maris College, the 6th respondent herein, was also part of the consideration before the Division Bench of this Court in O.S.A.Nos.83 and 129 of 2003 as well as before the Hon'ble Supreme Court in C.A.No.3052/2006. The subject matter is being maliciously raked up once again as this Court, the Division Bench clearly found that there was no evidence to support the said allegation. As far as the allegation relating to the Isabella Hospital, the 7th respondent herein, the Hospital and its property have nothing to do with the 1st respondent Trust, nor the administration of the Hospital come within the purview of the trust. The https://www.mhc.tn.gov.in/judis 35 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 allegations in respect of this Hospital are absolutely without any basis and the same have to be dismissed as complete falsehood. In respect of the above allegations, the learned Senior Counsel referred to the affidavit filed on behalf of 7th respondent. He referred to paragraph Nos. 3, 4, 5 & 7 of the counter affidavit.

3.At the outset I state that the seventh respondent is not a necessary party to the above proceedings as the seventh respondent hospital, is owned, administered and managed by Congregation of the Franciscan Hospitaller sisters of the Immaculate conception (FHIC) was formed in Portugal in 1871 for the purpose of dedicating itself to the service of the needy, especially the poor for the love of God and to witness Christ in joy and simplicity. Their motto was "Do good where there is good to be done." These were the inspiring words that promoted promoted the FHIC sisters to venture into an opening of St.Isabel's Hospital at Mylapore, Chennai.

4.I humbly state that during the II World war, when Chennai was facing its brutal consequences with wounded soldiers, epidemics etc., the FHIC sisters were invited by the late Most Rev.Don Manuel do Medeiros Gureiro, then Bishop of Mylapore to begin a Hospital in Chennai. Accordingly, 3 courageous and dedicated sisters: Irene, Alzira, Gloria and Maria Da Lourdes Pio voluntered their services and landed in Chennai on 3rd January, 1942. they stayed at Santhome for a https://www.mhc.tn.gov.in/judis 36 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 couple of years and on 19th March 1947 the foundation stone for the convent was blessed by Bishop of Mylapore and laid by Sr.Alzira, Superior.

5.It was on 19th March, 1949 that St.Isabel's Hospital came into existence, developing in the course of time into a large multi speciality hospital, in which lakhs of people are being treated with care, loving, concern compassion and understanding. The growth of the institution was slow and stead: starting primarily as a maternity service with utmost dedication and professional competence in association with some of the medical stalwarts of yester years Dr.P.Madhavan, Dr.M.S.Radhakrishnan, Dr.R.S.Rajagopalan and many others. ...

7.As regards the allegation that the seventh defendant is running a hospital not for charitable purposes as intended by John De Monte and the averment that the hospital was founded by De Monte for the ailing citizens of the locality I state that their hospital has nothing to do with the First respondent Trust. The allegation that the hospital has unfortunately turned out to be a money spinner and the knowledge of these petitioners/plaintiffs no money is being paid to the Trust for years together is incorrect. The allegation that the poor and the needy gets no treatment free of cost in the hospital is also incorrect.

https://www.mhc.tn.gov.in/judis 37 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

26. The above averments clinchingly expose that the applicants herein have come up with false and malicious allegations with an intention to harass the 1st respondent Trust for the purpose of achieving a collateral purpose, other than vindicating public interest. As held by the Courts that reckless and vexatious allegations against public trusts need to be dealt with sternly for protecting the trusts from being entangled in a needless litigation.

27. The learned Senior Counsel also referred to the Hon'ble Supreme Court order in C.A.No.3052/2006 wherein the Court has recognised the right to lease the properties of the trust but only insisted to follow the legal requirement. The lease was granted M/s. Sri Nidi Holdings on 18.01.2012 for the purpose of generating income for the trust. Subsequently, it was realised that the agreement was entered into on wrong advice. On 27.01.2013, new Arch Bishop was appointed and when he took over the reigns on realisation of the mistake, the same was immediately cancelled. The new Archbishop, after assumption of charge, constituted various committees and in respect of Sir John De Monte Trust, he had roped in the former Civil Servant Mr.L.M.Menezes, who was one of the plaintiffs in the earlier suit, as member of the property committee of the trust. According to https://www.mhc.tn.gov.in/judis 38 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 the learned Senior Counsel, all the members forming part of the said Committee enjoy extraordinary credentials in terms of their probity and reputation. In this connection, the learned Senior Counsel also referred to the observation of the Hon'ble Chief Justice, as he then was, in O.P.No.638/2014 proceedings dated 23.04.2015. The Hon'ble Judge has recorded that the earlier Bishop had given an undertaking before the Hon'ble Supreme Court and the controversy regarding the consequence of entering into the lease deed with Shri Nidhi Holdings on 18.01.2012 would have to be examined in the arbitration proceedings.

28. The learned counsel would submit that in order to manage and administer the trust having huge properties, adequate revenue need to be generated for the upkeep and the maintenance of the estate. Therefore, in the interest of the trust, properties were leased out but, wherever it was found that any transaction was not properly done, it was recalled.

29. After taking over by the new Archbishop, the trust has approached this Court in O.P.No.248/2018 and obtained an order on 18.04.2018 for leasing the property measuring an extent of 11.65 ground approximately, at Benz Garden, R.A.Puram. That is the only transaction https://www.mhc.tn.gov.in/judis 39 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 which has taken place in the last six years, that too, with approval of the Court. The learned Senior Counsel would further submit that the cause of action in paragraph 24 as contained in the draft plaint relate to all the transactions from the execution of the Will dated 18.07.1820, followed by Codicil dated 28.09.1827 and the grant of probate and the undertaking given before the Hon'ble Supreme Court on 25.11.2011. The applicants have also mentioned about filing of O.S.No.20/2014 in Chenglpet Court and the impleading petition filed in the suit in 2015, together with the permission granted by the learned Judge of this Court in O.P.No.248 of 2018 dated 18.04.2018 as part of cause of action. The learned Senior Counsel would highlight that all the transactions which formed the basis for the cause of action, cannot be resurrected after lapse of three years, being hit by the law of limitation. The last of the transactions mentioned namely permission granted by the learned Judge in O.P.No.248 of 2018 dated 18.04.2018, which per se cannot be a subject matter of any legal controversy. On the aspect of limitation alone, the leave is to be rejected.

30. The learned Senior Counsel, therefore, concluded that the applicants herein are not interested persons in terms of Section 92 CPC and also their intention is not to vindicate public interest, but intended to https://www.mhc.tn.gov.in/judis 40 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 advance extraneous agenda against the interest of the trust.

31. Mr.Sriram Panchu, learned Senior Counsel appearing for the second respondent/Archbishop would make the following submissions:

ii) According to the learned Senior Counsel, as soon as new Archbishop took over in January, 2013, the entire Administration of the trust had been streamlined. A proper committee had been put in place to https://www.mhc.tn.gov.in/judis 41 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 manage the trust property with the persons of eminence and integrity. The learned Senior Counsel has also referred to the proceedings in O.P.No.638 of 2014 dated 23.04.2015 relating to appointment of Arbitrator under Section 11 of the CPC instituted by Shri Nidhi Holdings in regard to the lease agreement dated 18.01.2012. He would refer to various paragraphs which have already been referred to in detail at the instance of the other learned Senior Counsel. The learned Senior Counsel would particularly emphasize the observation of the Hon'ble Chief Justice, as he then was, in paragraph 14 that insofar as the plea based on Section 7 of the Charitable and Religious Trust Act,1920 is concerned, it is really in the nature of advisory opinion. In the said circumstances, the 2nd respondent did not think it fit to obtain such an opinion prior to entering into the lease deed with the petitioner.

iii) The learned Senior Counsel would submit that the allegations containing expressions such as unscrupulousness etc., will not apply even remotely to this case vis-a-vis the transactions pointed out by the applicants in the plaint as well as in the affidavit filed in support of the Application. On the other hand, the present Archbishop, the 2nd respondent herein has scrupulously followed all the legal requirements, in consonance with the ideals of the trust while dealing with the Trust properties. https://www.mhc.tn.gov.in/judis 42 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

iv) The learned Senior Counsel has also drawn the attention of this Court to the credentials of the present Archbishop and the other members of the Trust Committee to highlight that “the persons connected with the trust are eminently responsible persons enjoying unimpeachable reputation and integrity.

v) The learned Senior Counsel would lastly submit that on the other hand, the persons interested in the present Application have not shown in what way they are having special relationship with the trust except contending that they have been actively involved in taking up issues of defalcation of trust properties belonging to the Christian community. As Courts held, some kind of a special relationship is to be shown other than the general or contingent interest entitling the persons for grant of leave under Section 92 CPC. At the instance of the vested interest, the trust cannot be subjected to litigation. The application is palpably filed by the applicants for advancing their personal interests, masquerading as public interest and therefore, would implore this Court to reject the leave Application.

32. Mr.P.B.Balaji, learned counsel appearing for the fourth respondent/defendant would submit that the Archbishop of Goa is not a https://www.mhc.tn.gov.in/judis 43 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 necessary party at all as they have no interest whatsoever in the first respondent Trust. According to him, that after reorganization of the States in 1950, the 4th respondent ceased to have any connection whatsoever with the first respondent or the second respondent. In the counter affidavit, in the present Application, it has been categorically stated that the fourth respondent is unnecessary party on the ground that the Church structure of the Diocese in the Country had undergone reorganization. At the time of the execution of the Will, Sir John Demonte could not have foreseen the reorganization of the Churches in India. Therefore, the fourth respondent claimed that they have no interest whatsoever in the trust property any more after reorganization and requested this Court to dismiss the suit as against the 4th respondent.

33. In fact, Mr.Vijay Narayan, learned Senior Counsel who appeared for the first respondent Trust has drawn the attention of this Court to the counter filed by the fourth respondent dated 25.04.2002 in the earlier litigation in O.A.No.567 of 2002 in C.S.No.156 of 2002 wherein it was categorically stated as under.

3. I submit that at the time of executing the Will of Sri John D'Monte, the Archdiocese of Goa was part of the https://www.mhc.tn.gov.in/judis 44 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Portuguese territories in India. Sri John D'Monte was a Portuguese and as the Archdiocese of Goa had as it suffragan the Diocese of Santhome, the provision pertaining to rendition of account was apparently given. As admitted by the applicants in paragraph 43, the Church structure of the Dioceses in the Country have undergone re-organisation. Consequently, the question of exercising any supervisory jurisdiction on a suffragan Diocese did not arise at all after reorganisation.

4. I submit that a reading of clause 30 of the will clearly reveals that it is the desire and request of the Testator to ask the Bishop of Santhome to render accounts of the receipts and disbursements of the interest monies and funds to the Archbishop of Goa and to the Executors and their Survivors. Admittedly, all the executors died and none of their survivors remain. It is seen that the Archbishop of Madras-Mylapore is admittedly auditing the accounts and the balance sheets are duly audited. I understand that he is also filing income tax returns though there is exemption granted. Thus, there is adequate supervision of the funds of the Trust.

5. At the time of execution of the Will, Sir John D'Monte would not have contemplated the reorganisation of the Dioceses in India. He would not have contemplated the bifurcations of States also. The Archdiocese of Goa has nothing as such to do with the Archdiocese of Madras- Mylapore after the reorganisation. No Archbishop will mismanage or appropriate any income to himself. Thus, the https://www.mhc.tn.gov.in/judis 45 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 contentions raised against me, to make me a party to the above proceedings are untenable both in Law and on facts. I humbly submit that no valid reasons have been made out for filing a suit under Sec.92 of the Code of Civil Procedure.

Therefore, the fourth respondent, on the face of its own admission as above, is not a necessary or proper party. Therefore, he requested this Court to reject the leave application as against the Arch Bishop of Goa.

34. Mr.R.Singaravelan, learned Senior counsel appearing for the fifth respondent, the Property Manager of the second respondent Archbishop, Madras-Myalpore, would, at the outset, submit that the prayer as contained in the paragraph 26 of the draft plaint is only relating to the properties of the first respondent trust and has nothing to do with the properties of the second respondent. In the course of his submissions, he would refer to various documents contained in the typedset of documents filed on behalf of the fifth respondent/defendant.

35. The learned Senior counsel referred to certain documents contained in the typed set in order to highlight as to how the applicants/plaintiffs herein have their vested interests in coming up with the present Application. He referred to the minutes of the meeting of the third https://www.mhc.tn.gov.in/judis 46 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 plaintiff dated 28.03.2016, wherein inter alia a dispute was raised regarding huge extent of properties being leased out to the private persons for paltry rents without entering into proper lease agreements resulting in loss of revenue to the trust. Among several matters discussed in that meeting, this was one of them. A resolution was also passed in the meeting condemning the action of the second respondent in seeking to evict the tenants in St.Mary's colony at Abiramipuram belonging to the trust property. There was an eviction proceedings pending before the City Civil Court, Chennai, and that was the subject matter of opposition in the said meeting. Apart from that, a resolution was also passed against the lease of 389 grounds to Stella Maris College/6th respondent herein for a paltry amount on one hand and on the other, seeking higher rent from the tenants who hail from poor background.

36. The learned Senior Counsel referred to the letter addressed to St.Mary's Colony Tenants' Welfare Association dated 03.10.2013. A request was made against the demand of increase in rent on the basis of the then market value. The Secretary of the Association was one Mr.J.Philomena who is a member of the 3rd plaintiff Society. With a view to draw nexus of personal interest in the litigation, the learned Senior Counsel referred to the https://www.mhc.tn.gov.in/judis 47 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 resolution of the 3rd plaintiff Federation dated 27.06.2016 and the said Philomena was one of the signatories of the resolution along with one T.Victor who was facing eviction proceedings as tenants of St.Mary's Colony. In the resolution, it was stated that in view of misappropriation of funds of the Diocese, the only way to show their disagreement with the administration of the trust was to stage protest and to initiate legal action against them. The learned Senior Counsel would therefore, submit that there is conspicuous personal interest in this litigation and on this ground alone, the application is to be rejected.

37. In connection with the suit for eviction against the tenants of the St.Mary's colony, he would refer to O.S.No.4986 of 2014 filed by the second respondent against the Secretary of Association who is one of the tenants Mrs.Philomena Sajana. In the written statement filed by her, she had averred that the property constructed in the St.Mary's Church colony was owned and belonging to Mr.John D'Monte Trust and the 2nd respondent was not the owner of the property and is only a caretaker. The learned counsel also referred to the examination of said Philomena who gave evidence against the 2nd respondent Archbishop in the suit proceedings, wherein she had clearly deposed that the protest was intended to protect the https://www.mhc.tn.gov.in/judis 48 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 interest of the properties belonging to the first respondent Trust, when she was shown certain photographs in which her participation was highlighted.

38. The learned Senior Counsel also referred to the proof affidavit filed by the said Philomena. There again, she had stated that the property in St.Mary's colony was owned by D'Monte Trust. However, she also stated that as per the revenue records, the suit properties were in the name of the Diocese of Madras, Mylapore which was acquired from the Government at free of cost or from philanthropist late Sir De Monte or others. These facts clearly established that there is a personal motive in this litigation. She was not even sure as to who owned the property and yet made allegations as if the trust properties had been mismanaged. The learned Senior Counsel submitted that on the one hand they complain about low revenue being generated out of leasing huge properties to the 6th respondent college, on the other, they resist the nominal and reasonable enhancement in the rents payable by the tenants of the St.Mary's colony.

39. The learned Senior Counsel has also referred to protest notice issued by the third applicant Society on 17.09.2016 raising several allegations against the second respondent. He referred to certain https://www.mhc.tn.gov.in/judis 49 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 communications bearing different addresses of the 3rd plaintiff. He would therefore submit that the third applicant is not a bonafide organisation but involved in such litigations for achieving extraneous purposes.

40. The learned Senior Counsel also referred to the judgment in O.S.No.4986 of 2020 dated 07.02.2018 wherein the suit for eviction has been decreed and the defendant Mrs. Philomena was directed to hand over the vacant possession of the suit property within a period of three months. As against trial Court judgment and decree, an appeal has been filed in C.M.A.No.38 of 2019 and the same is pending before the Appellate Court, as on date.

41. The learned Senior Counsel would further draw the attention of this Court to paragraphs 8 to 14 in the plaint. All the averments contained therein namely the so called allegations were covered under the earlier decision of this Court in the aforementioned original side appeals and culminating in the order of the Hon'ble Supreme Court in C.A.No.3052 of 2006.

42. Concluding his arguments on the facts of the case, the learned https://www.mhc.tn.gov.in/judis 50 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Senior Counsel would rely on 2008 (4) SCC 115( Vidyodaya Trust Vs. Mohan Prasad & others ) has referred to paragraphs 18 to 20 and 24 of the judgment, which read as follows:

43. The learned Senior Counsel would also refer to a decision reported in 1987 (100) LW 182( S.Guhahan & others Vs. Rukmini Devi https://www.mhc.tn.gov.in/judis 52 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Arundale & others) and the Court's attention has been drawn to paragraphs 22 and 24 of the judgment, which read as follows:

(2) How the present arrangement existing is not conducive for its management.

(3) as to why by any other arrangement apart from moving the court, necessary safeguards could not be taken;

4) as to how by inducting three more trustees, and out of whom, two are beyond 70 years, the Trust could be better managed than by the existing old people etc.” Three of the six trustees having filed the plaint impleading one among them as a third defendant, even the names of two other trustees are nowhere spelt out in the plaint. The copy of the resolution unanimously passed was unknown to the court. As pointed out above, the reason of old age has no relevance to the facts and circumstances of this case. For old age it does not mean that the entire existing set up inclusive of the Society should be wiped out by way of direction. They have not confined relief for a direction, to solve such of those difficulties, having nexus to old age. Hence necessity to issue directions bad not been spelt out in the plaint. In the light of the decisions above referred to, on the https://www.mhc.tn.gov.in/judis 54 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 basis of such an ill-drafted plaint, which does not contain required particulars making out necessity to issue directions, the suit under S.92 , C.P.C. is not maintainable.

44. The learned Senior Counsel would rely on the observations of the Hon'ble Supreme Court in the above decisions to contend that when plaintiffs do not sue to vindicate the right of the public, but seek a declaration of their personal or individual rights in such case Section 92 CPC has no application at all. The decisions further held that the plaint should contain particulars of breach of trust as pre-requisite of application of Section 92 CPC. The allegations contained in the plaint in this case if looked into, no breach of trust has been made out at all from the entirety of the averments in the plaint. In such circumstances, the application seeking leave, is liable to be rejected as being completely without substance.

45. Mr.M.S.Krishnan, learned Senior Counsel appearing for the sixth respondent college has made his submissions as below:

46. By way of reply, the learned counsel Mr.V.Raghavachari, would come up with the following elaborate submissions.

i) The learned Counsel referred to the earlier litigation filed by Mr.L.M.Menezes and others in Application No.567/2002. One of the reasons that weighed with the single Judge to recall the leave granted in the above said Application was that the trust was not made a party. The Court further held that Mr.L.M.Menezes and Mr.Devasahayam, who claim themselves to be the interested persons, at that point of time, were held to https://www.mhc.tn.gov.in/judis 58 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 be not connected with the trust. It was also held that they had axe to grind against the functioning of the trust.

ii) In this regard, the learned counsel once again, referred to the judgment in O.S.A.No.83 and 129 of 2003 dated 22.12.2003 and has drawn the attention of this Court to paragraph Nos. 2 and 3 therein. The Division has recorded the fact that the appellants therein failed to array the trust as the defendant in the suit and thus the learned Single Judge allowed the application to revoke the leave and dismissed the application to implead the trust. The learned counsel referred to various other paragraphs in the Division Bench judgement. According to the learned counsel,several observations were made in the judgment of the Division Bench which were all on a prima facie consideration and not amounting to conclusive finding. The Division Bench had come to the conclusion primarily on the ground that those persons who instituted the suit were not interested persons in terms of Section 92 CPC and also the 1 st respondent Trust was not arrayed as party in the suit. Therefore, the decision rendered therein by the learned single Judge as well as the Division Bench, cannot be held against the present application filed by the applicants herein.

iii) The learned counsel reverted to the last Will and Testament of Sir John De Monte As per Clauses 30 and 33 which were referred to earlier, https://www.mhc.tn.gov.in/judis 59 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 apart from the Archbishop, there were others to be jointly incharge of managing the trust. The 2nd respondent cannot claim himself to be the sole trustee and take unilateral decision in respect of the properties of the trust. The 3rd respondent's unilateral decision and action run contrary to the Will and Testament of Sir John De Monte dated 19.07.1820/ 18.05.1821.

iv) The learned counsel also referred to a Media brief by the 3rd plaintiff herein dated 15.02.2012 which referred to FIRs being filed by the Crime Branch of Chennai Police, under various Sections of I.P.C . relating to transaction of the immovable properties belonging to the 1st respondent Trust. It also referred to the F.I.Rs. being quashed by this Court in Crl.O.P.s under section 482 Cr.P.C., against which, the Special Leave Petitions had been filed before the Hon'ble Supreme Court of India and the Hon'ble Apex Court has ordered notice to the respondents on 10.02.2012. Mr.Devasahayam, who initiated criminal proceedings against the trust has not pursued thereafter before the Hon'ble Apex court in view of his switching sides. The learned counsel stated that the criminal complaints were lodged against the conspiracies hatched between the trustees and power agents, unscrupulous persons squandering all the trust properties meant for the deprived poor worth about 1500 cores. Mr.Devasahayam who initiated the complaints on 19.07.2011, failed to pursue the matter and the https://www.mhc.tn.gov.in/judis 60 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 same is pending before the Apex Court.

v) The learned counsel proceeded to refer another judicial proceedings before this Court in O.P.No.296/2010. The learned Judge, as he then was, dealing with the petition filed under Section 3 of the Charitable and Religious Trust Act, 1920, for a direction to the respondents to provide to the petitioner with information morefully described in schedule-A to the petition, for the purpose of appointment of independent auditor to examine and audit the accounts of the office. The petitioner therein is the same Mr.M.Devasahayam, former Civil Servant and the respondents therein, the 1st and 2nd respondent herein, the trust and the Archbishop respectively. The learned counsel referred to several contentions made in the said O.P. by the parties . He particularly referred to paragraph 22 of the order of the learned Judge, as he then was, wherein he has referred to the observation made by a common order passed by this Court on 06.03.2006 relating to dismissal of O.P.Nos. 219 and 220/2002 filed by the trust seeking sanction and approval of two lease deeds. When impleadment was sought by the persons interested, while dismissing the main O.Ps, observations made in paragraph 16 were extracted in that order, wherein the Court, though dismissed the O.Ps., however, held that the persons who sought impleadment in the O.Ps. can said to be parties https://www.mhc.tn.gov.in/judis 61 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 interested though not necessary parties. The observations made in that order which were recorded by the learned Judge read as "the properties of the trust should come to the hands of the Church, and it is for the betterment of the poor and downtrodden". Once a person belongs to a particular faith becomes member of the Church, the Court finds that the impleading person become parties interested and they have got to be heard. The Court finally heard them and their contentions were also recorded.

47. The learned Judge as he then was , then proceeded to hold that Mr.Devasahayam in O.P.No.296/2010 as interested person. However, the learned Judge finally, did not grant any relief in the O.P. on the ground that the Civil Appeal was at that time pending before the Hon'ble Supreme Court but however, liberty was granted to the petitioner to come up once again, with a petition under Section 3 of the Charitable and Religious Trust Act, 1920. The learned counsel would lay emphasis on the fact that the same Devasahayam was found to be interested person by the learned Judge of this Court, as he then was.

48. The learned Counsel, once again, reiterated the submissions made in proceedings relating to O.P.No.638/2014 before the Hon'ble Chief https://www.mhc.tn.gov.in/judis 62 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Justice as he then was when the O.P. was taken up for hearing on 23.04.2015, wherein the same trust which entered into the lease agreement on 18.01.2012 with one Shri Nidhi Holding, opposed the petition on the ground that there was an injunction operating against the trust in view of the undertaking given by the 2nd respondent before the Hon'ble Supreme Court of India. In paragraph No.6 of the proceedings, it was submitted by a learned Senior Counsel who appeared on behalf of the trust that the execution of the lease deed dated 18.01.2012 "appears to be an endeavour to over reach the undertaking". In the face of the said admission and acknowledgement it becomes abundantly clear that the administration of the trust by the 2nd respondent was riddled with irregularities.

49. The learned counsel further submitted that the arguments that new Archbishop has taken over in January 2013 is of no legal significance for the reason that persons in charge may change, but the trust remains the same. The learned counsel also referred to the legal notice issued on behalf of the 1st respondent Trust dated 02.02.2017 in response to the communication of the 3rd applicant herein seeking details of transactions relating to the properties of the trust. He, in particular, referred that when the plaintiffs wanted transparency in all the dealings in their letters dated https://www.mhc.tn.gov.in/judis 63 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 28.03.2016, 19.01.2017, it was stated that the matters relating to few of the trust properties are subjudice and the Trust Committee has resolved not to divulge information to the public, as it will hamper the trial proceedings. In the legal notice, it was also admitted that the committee has engaged competent lawyers and approximately 30 ground of land had been recovered legally from encumbrances and litigations. The conservative market value of the properties recovered was assessed to be above Rs.300 crores. The learned counsel submitted that in their own legal notice, it is admitted that there were irregularities in the management of the trust property and the committee had to initiate legal action for recovering of property worth several hundred crores.

50. The learned counsel also submitted that St.Marys Colony issue and the connected litigations had nothing to do with the present application being filed by the aplicants/plaintiffs herein. The learned counsel also submitted that when it comes to public trust, there may not be any plea of limitation. Whenever any mal-administration is noticed, the Courts can always be approached with a view to protect the interest of the trust.

51. The learned counsel then proceeded to refer to various decisions https://www.mhc.tn.gov.in/judis 64 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 in support of his contentions.

( i) Charan Singh & another Vs. Darshan Singh & others reported in (1975) 1 SCC 298. The learned counsel has referred particularly, to paragraphs 8 & 9 of the judgment, which read as under.

In the above case the Hon'ble Supreme Court has held that the maintainability of the suit under section 92 CPC depends upon the allegation in the plaint and does not fall for decision with reference to the averments in the written statement. The Court has also held that the suit is of special nature and such suit can proceed only against the allegation that there is breach of trust or that directions from the Court are necessary for the administration thereof.

(ii) ILR 1980 Kar 1051 (The Church of South India Vs. Rev.D.I.Ananda & others).The learned counsel has referred particularly to paragraphs 4 (III) & (IV), 20, 24 & 25 of the judgment, which read as follows;

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4.But, as noticed earlier, arguments covered a wide range and calls for determination of the validity of the orders dated 23-8-1977 on I.A. No. I and 12-9-1979 on I.A. No. XI and to facilitate a proper discussion, it is useful to formulate the points that arise for determination in the case and deal with them seriatim. On an examination of the contentions urged before me the following points arise for determination in the case:

20.Whether leave should be granted or not is undoubtedly for the Court to decide. But by reason of that only, the opponents do not lose their right to oppose the application and satisfy the Court that leave should not be granted. A fortiori there is no reason to exclude the principle of audi alteram partem to such a proceeding. A decision on an application made under Section 92 cannot by stretch of imagination be compared to an admission of a case or issue of Rule nisi in a writ petition.

24.What is the scope of inquiry in an application made under section 92 of the code?

https://www.mhc.tn.gov.in/judis 69 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 In considering an application under section 92 of the Code and granting leave if it so decides, the Court only lifts an initial impediment or a bar on the persons that claim to have an interest in a public trust to institute a suit in a Court without finally deciding any of the controversies in the suit to be filed by such persons. Any expression of opinion by the Court on an application is only for the purpose of that application and does not bind the parties or the Court itself which has to finally decide the suit.

25.A suit filed under Section 92 of the Code is a suit of a special nature (vide Swami Parmatmanand Saraswativ.Ramji Tripathi [(1974) 2 SCC 695 : A.I.R. 1974 Supreme Court 2141.] In considering application for grant of leave, the Court has to consider (i) whether there is a public trust; (ii) whether there are allegations alleging breach of trust or the directions of the Court was necessary for the administration of such a trust; (iii) that the suit to be filed must not only be in the interest of the plaintiffs individually but in the interest of the public or in the interest of the trust itself; and (iv) that the relief to be claimed in the suit should be for one of the reliefs mentioned in Section 92 of the Code. While considering an application, the Court has to see only the allegations made in the application and the proposed plaint, without holding an inquiry into the truth or otherwise of those allegations. Even the opponents are only entitled to show that all or any of the factors necessary to give leave do not exist or any other https://www.mhc.tn.gov.in/judis 70 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 threshold bar like a previous suit filed by two or more persons on the very same allegations for the very same reliefs had been dismissed by that or another Court. What pleas can be urged as threshold bar cannot be exhaustively enumerated but has to be decided on the facts and circumstances of each case. An inquiry under Section 92 is very limited. An examination of the order made by the learned District Judge discloses that he has not really applied his mind and has not found that leave was necessary to be granted and in that view also it is clear that he has acted with material irregularity affecting his jurisdiction. The Karnataka High court in the above case has held what are the principles to be considered while dealing with section 92 CPC application. In fact, the Karnataka High Court has followed the landmark decision of the Hon'ble Supreme Court reported in AIR 1974 SC 2141( Swami Paramatmanand Saraswati and another vs. Ramji Tripathi and another ).

iii) 2004 (4) CTC 641 (B.D.V.Rangarathinam & Others Vs.Sri Bakthositha Perumal Temple, Sholinghur & others).The learned counsel has referred particularly to paragraph 10 of the said judgment , which reads as follows;

The Division Bench of this Court has also culled out the points for consideration in Section 92 application on the basis of the decision of the Hon'ble Supreme Court in Charan Singh v. Darshan Singh reported in AIR 1975 S.C. 371.

(iv) (2004) 13 SCC 402 (All India Women's Conference & others Vs. Sarla Shah & others) . The learned counsel has referred to paragraph 11 of the judgment, which reads as follows:

In the above case, the Hon'ble Supreme court of India has factually found that there was material in support of the allegation of breach of trust and the leave was thus, rightly granted under Section 92 of CPC. earlier by the High Court, which was erroneously revoked later.

(v) (2012) 6 CTC 721 ( Nadigar Sangham Charitable Trust Vs. S.Murugan @ Poochi Murugan ). The learned counsel has referred to paragraphs 20 to 26, 34 to 37 & 40 of the judgment, which read as follows:

The real test for the applicability of Section 92 of the Code is to see whether the Suit is fundamentally on behalf of the public for vindication of a public right.

21.The Supreme Court in R.Venugopala Naidu v. Venkatarayulu Naidu Charities , 1989 Supp (2) SCC 356, explained the scope of a Suit under Section 92 of C.P.C. as under:

22.A Suit under Section 92 , C.P.C. is of special nature, which pre-supposes the existence of a Public Trust or Charitable Trust and can proceed only on the allegation that there is a breach of Trust and that directions from the Court are necessary for the administration of the Trust. In the Suit filed under Section 92 , C.P.C., while drawing the attention of the Court to the alleged illegality committed by the Trustees, the Plaintiff must pray for one or more reliefs mentioned in the Section. Suit in CSD No. 15568 of 2012 was initially filed for declaration that the General Power of Attorney dated 6.8.2010 and Lease Deeds executed on 6.8.2010 & 25.11.2010 are null and void. In a Suit filed under Section 92 of C.P.C., the Plaint must contain the averments as to the above ingredients. Unless the requirements of Section 92, are strictly followed, the Suit cannot proceed. In the Plaint initially filed, the Plaintiff has not prayed for one or more of the reliefs mentioned in the Section for removal of Trustees and to settle a scheme for https://www.mhc.tn.gov.in/judis 75 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 administration of the Trust.

23. When objections were raised that the declaratory prayer sought for would not fall within the ambit of Section 92, the Plaint was amended by including the prayers in Section 92. Contending that when the Plaint was not numbered, Single Judge was not justified in allowing the Amendment Application, Appellants placed reliance upon the decisions of P.V. Mathew v. K.V. Thomas , AIR 1983 Kerala 6; and Kintali China Jaganadham v. K. Lakshmi Naidu , AIR 1988 Orissa 100, in support of the contention that any order passed without granting leave to institute the Suit must be deemed to be non est.

24.In P.V. Mathew v. K.V. Thomas , AIR 1983 Ker. 6, Division Bench of Kerala High Court has laid down the procedure to be followed by Court in granting leave under Section 92(1), C.P.C. The said judgment was referred and relied upon by the First Bench of this Court in M. Anandan v. Ayyanna Gounder Memorial Trust, 1993 (2) LW 308.

25. In M. Anandan v. Ayyanna Gounder Memorial Trust , 1993 (2) LW 308, the Division Bench of this Court has observed that “for safeguarding of the interest of the Trust, passing of such interim orders are necessary” and held as under:

26. The Supreme Court in N. Narayana Chettiar v. N. Lakshmanan Chettiar , AIR 1991 SC 221, observed that the issuance of the notice is not a statutory requirement to be complied with before granting leave under Section 92 of C.P.C. The Supreme Court further observed that any construction of the provisions of Section 92 of C.P.C. in favour of giving notice before granting leave would render it difficult for the beneficiaries of a Public Trust to obtain urgent interim orders of the Court even though the circumstances might warrant such a relief being granted. This Judgment throws light on the scope of opposition before granting leave. Once the Court finds that it is a Public Trust, Court is to consider what is in the best interest of the Trust.

34. The grant of leave is a mandatory requirement for institution of a Suit under Section 92 of C.P.C. The grant of leave does not essentially involve an adjudicatory process. The Court should look into the averments and allegations in the Plaint to arrive at a prima facie satisfaction that the Suit https://www.mhc.tn.gov.in/judis 77 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 would fall within the ambit of Section 92 of C.P.C. The Plaintiffs, who had produced prima facie materials, in the form of Plaint avements, has to demonstrate that the direction of the Court is necessary for the administration of the Trust. It is essentially for the Court to decide by taking a prima facie view of the matter as to whether the Plaintiff has made out a case for grant of leave. The Plaint averments regarding breach of trust would be a primary material in arriving at a conclusion regarding prima facie case to grant leave.

35.The Court has necessarily a duty to protect the interest of the Public Trust. A Public Trust should be administered in a transparent manner. While dealing with an Application for leave under Section 92 , C.P.C., the Court should not adopt a hyper-technical approach. In case the allegations in the Plaint are baseless and calculated to defame the trustees and there are no materials at all to form a prima facie view of the matter, the Court would be justified in refusing to grant leave. There cannot be a hard and fast rule in a case of this nature involving a public charity. In fact the reason for obtaining leave itself is to protect the Trustees from being subjected to unnecessary harassment and to avoid an unwanted litigation involving the Trust. The Plaintiffs in a Suit under Section 92 of C.P.C. is only bringing it to the attention of the Court about the alleged illegality committed by the Trustees in the office and the need for removal of such trustees or to frame a comprehensive scheme for the Trust. In case the https://www.mhc.tn.gov.in/judis 78 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Court is convinced that the Suit was filed for vindication of public rights technicality would not stand in the way of entertaining the Suit. While granting leave, the Court is only considering certain fundamentals, which are required to be satisfied to entertain a Suit under Section 92 of C.P.C.

36. The Respondents 1 & 2, who are the members of SIAA, have levelled serious allegations with reference to the purpose of the Trust and various clauses of the Lease Deed The merits of those allegations are to be necessarily looked into at the time of deciding the Suit. The General Power of Attorney (dated 6.8.2010) and Lease Deeds (dated 6.8.2010 and 25.11.2010) were filed as Plaint documents and arguments were advanced before the Single Judge on the basis of those documents and the circumstances under which the lease was executed without calling for public tenders and this resulted in expressing the views as to prima facie case of mismanagement by the learned Judge for the purpose of granting leave under Section 92(1) of C.P.C. Therefore, it cannot be said that the learned Single Judge has traversed beyond the Plaint averments by expressing his opinion on the merits of the matter.

37.While granting leave, the Court is only considering certain fundamentals, which are required to be satisfied to entertain a Suit. Merely because leave was granted it cannot be said that the Court was convinced about the breach of trust alleged against the trustees and the collusive manner in which https://www.mhc.tn.gov.in/judis 79 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 the activities of the Trust were undertaken by the trustees. The finding with regard to a prima facie case is only a tentative one. It is only for the limited purpose of arriving at a satisfaction with regard to prima facie case that the Court would look into the Plaint and supporting documents. In case available materials are not sufficient to arrive at such a preliminary finding with regard to the prima facie case, it is open to the Court to call upon the Plaintiff to produce additional materials.

40.In so far as the objection raised, that the learned Single Judge has expressed opinion on the merits of the matter, we only observe and given the nature of allegations and clauses in the Lease Deed, the learned Single Judge only expressed the satisfaction as to the prima facie case to grant leave to institute the Suit. In any event, the order of the learned Single Judge as well as the judgment in this Appeal would not in any way preclude the Appellants from adducing evidence to substantiate their defence in the Suit. Therefore, we do not find any reason warranting interference with the order of the learned Single Judge."

As far as the above case is concerned, the learned counsel, in extenso, drawn reference to various paragraphs as above. The Division of this Court https://www.mhc.tn.gov.in/judis 80 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 has extensively adverted to various decisions of the Hon'ble Supreme Court as well as the other High Courts and dealt with the application under Section 92 CPC. and the consideration by the Courts, while granting or refusing leave.

(vi) (2020) 4 SCC 321 ( Ashok Kumar Gupta & another Vs. Sitalaxmi Sahuwala Medical Trust & Others ). The learned counsel has referred to paragraphs 9 to 12 of the judgment, which read as follows:

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(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), or by any corresponding law in Civil Appeal No. 1917 Of 2020 (arising out of SLP(C)No.21306 of 2019) Ashok Kumar Gupta & Anr. v. M/s Sitalaxmi Sahuwala Medical Trust and others force in the territories which, immediately before the 1 st November, 1956, were comprised in Part B States, 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.

10. While considering the scope of Section 92 (1), as it https://www.mhc.tn.gov.in/judis 82 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 existed then, a Constitution Bench of this Court observed in Chairman Madappa vs. M.N. Mahanthadevaru and Others as under:-

11. The statement of law so laid down was reiterated:-

(ii) there is a breach of trust or a direction of Court is necessary in the administration of such a Trust; and

(iii) the relief claimed is one or other of the reliefs as enumerated in said Section.

Consequently, if any of these three conditions is not satisfied, the matter would be outside the scope of said Section 92."

52. In the above case also the settled legal principles have been reiterated by the Hon'ble Supreme Court. The learned counsel therefore, summed up stating that the Courts have consistently held that if there are allegations relating to breach of trust in relation to charitable and religious trust properties, the leave is necessarily to be granted for protecting the trust properties. Several instances of breach of trust have been pointed out in the plaint and the Courts have held that as far as the leave to be granted under section 92 CPC., the averments in the plaint alone would be the fulcrum of consideration, and on a prima facie consideration, this Court is empowered to grant leave. He would therefore, request this Court to grant leave in the larger interest of the proper management of the 1st respondent Trust properties.

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53. Mr.Vijay Narayan, the learned Senior counsel for the 1st respondent, by way of rejoinder to the reply by the counsel for the applicants/plaintiffs , would submit that the contentions regarding the conclusion reached by the learned single Judge that the trust was not made a party and therefore, the leave was recalled, is incorrect. The Division Bench has given independent reasons for upholding the revocation, and therefore, the learned single Judge reasoning ought not to have been relied upon. As a matter of fact, in respect of the ruling of the learned Single Judge on the aspect of not making the Trust, a party in the suit, the Division Bench reversed the decision in O.S.A.No.129/2003. In order to lend further focus on the Division Bench decision, the learned Senior Counsel once again, has drawn the attention of this Court to succinct observations and respective submissions of the parties in O.S.A.Nos.83 and 129 of 2003.

54. As regards the contention of the applicants that the properties of the trust need to be jointly managed in terms of the last Will and Testament, the learned Senior Counsel refuted that the contention as contrary to the record. The 2nd respondent Archbishop is the sole trustee in terms of the Will and the same has been recognised by the Hon'ble Supreme Court of https://www.mhc.tn.gov.in/judis 86 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 India when an undertaking was given by Archbishop before the Hon'ble Supreme Court. The leaned Senior Counsel also referred to the last Will and testament once again and stated that it was only contemplating a committee, not multiple trustees. He particularly referred to 33rd clause in the Will which clearly stated that on the death of some named executors, "the entire control and management of all the affairs of the estate are to devolve on the said Bishop or Vicar General for the time being for ever and he is to be considered as my permanent Executor and Trustee". The Will therefore, contemplated only a trustee, after passage of time.

55. As far as the allegations related to Isabella Hospital is concerned, the hospital was founded by different missionaries in 1942 whereas, Sir John D'monte Will was executed 120 years before in 1820. According to the learned Senior Counsel, on behalf of the applicants, a news letter was referred to. A mention was made as if large sums of money was bequeathed under the Will and the beneficiaries include is the Charitable Hospital in Luz known as Isabella Hospital. This is completely misleading and amounted to misrepresentation as the hospital itself was founded only after 120 years after the Will was executed in 1820. By making such reckless allegations, the applicants have lost the status of calling themselves as https://www.mhc.tn.gov.in/judis 87 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 interested persons in terms of Section 92 CPC. The learned Senior Counsel also referred to the fact that the criminal complaints registered against the trust were ultimately quashed by this Court in various Crl.O.Ps as it was found that there was no basis at all in the complaint.

56. The learned Senior Counsel once again referred to the Covelong property being settled in favour of third respondent/Bishop of Chenglepet illegally and demonstrated that the survey numbers were completely different and that property belonged to the second respondent Church, had nothing to do with the trust property at all. The learned Senior Counsel would also state that the fourth respondent is neither a necessary nor a proper party (Archbishop of Goa) as revealed and demonstrated by their own affidavit filed before this Court in the earlier proceedings which was also referred to supra.

57. As far as the order relied upon by the learned counsel for the applicant passed in O.P.No.296 of 2010 dated 19.08.2011 is concerned, the statement made with reference to the order once again amounted to misrepresentation. The conclusion that Mr.Devasahayam was interested person by the learned Judge, as he then was, was with reference to section 3 https://www.mhc.tn.gov.in/judis 88 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 of the Charitable and Religious Trust Act,1920 . In fact, the learned Judge has observed in that order that rigidity of or the iron frame within which Section 92(1) of the Code is encompassed, cannot per se be imported into Section 3 of the Charitable and Religious Trusts Act, 1920 as against the liberal construction of Section 3 of the Act, and in that context, Devasahayam, the petitioner therein was construed to be an interested person. Therefore, it is not open to the learned counsel to draw any inspiration from such observation made in the context of different enactment.

58. The learned Senior Counsel once again emphasised the fact that the agreement between Shri Nidhi Holding dated 18.01.2012 was subsequently rescinded. After the new Archbishop took over charge in January 2013, whatever transgressions made earlier were rectified and recalled . The remarks made by the Hon'ble Chief Justice, as he then was, in the O.P.No.638/2014 dated 23.04.2015 was confined only within the frame work of the contract being entered into with Shri Nidhi holding and at worst it amounted to castigating the trust, and not commenting upon the mal-administration of the 1st respondent Trust as such. https://www.mhc.tn.gov.in/judis 89 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

59. The learned Senior Counsel refuted the submission that there cannot be any application of law of limitation against leave being sought under Section 92 CPC. According to him, such argument is erroneous, that law of limitation is very much applicable even in respect of an application under Section 92 CPC. with reference to the cause of action pleaded in the application and in the draft plaint.

60. The learned Senior Counsel finally summed up saying that once the compromise has been reached before the Hon'ble Supreme Court of India on 14.12.2011, the matter ought to have rested there and the trust must be allowed to function freely without any hindrance from the persons like the applicants/ plaintiffs herein.

61. Mr.R.Singaravelan, the learned Senior Counsel appearing for the 5th respondent referred to once again the observation and the submissions made before the Hon'ble Apex court in Civil Appeal No.3052/2006 L.M.Menezes & others Vs. RT.REV.Dr.Lawrence Pius & others . In fact, he would more particularly refer to paragraph 13 of the order of the Hon'ble Supreme Court of India which is extracted hereunder.

13.Since we have taken cognizance of what has been brought https://www.mhc.tn.gov.in/judis 90 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 to the notice of this Court by the Appellants, therefore, in this case, the question with regard to "persons interested" as contemplated under Section 92 of the Code is not being dealt with separately by us. For this case only, prima facie, we treat them as "persons interested" as certain facts material to the issue in this Appeal are brought to our notice, but however, it shall not give them an absolute blanket clue or handle to move the application against the respondents under Section 92 of the CPC unless they are able to prove and satisfy the Court that they continue to be "persons interested".

62. According the learned Senior Counsel for the 5th respondent, though the Hon'ble Apex Court was of the view that the persons who initiated the suit were not interested persons, but in order to give a quietus to the dispute, those applicants were treated as interested persons. He also submitted that not a single complaint has been made after 14.12.2011 against the trust. He also referred to paragraph 20 of the plaint, in which, it is stated that there is a trust committee, which takes all the decisions in respect of the trust properties. When the committee is in place to monitor the properties of the trust and the applicants cannot have any apprehension as to its management, even assuming the applicants herein are 'interested persons'.

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63. The learned Senior Counsel also relied on a decision reported in S.Guhan & others Vs. Rukmini Devi Arundale & others reported in 1987 (100) LW 182. The learned Senior Counsel referred particularly paragraphs 22 and 24 of the judgment, which read as follows:

(2) How the present arrangement existing is not conducive for its management.

(3) as to why by any other arrangement apart from moving the court, necessary safeguards could not be taken;

4) as to how by inducting three more trustees, and out of whom, two are beyond 70 years, the Trust could be better managed than by the existing old people etc.” Three of the six trustees having filed the plaint impleading one among them as a third defendant, even the names of two other trustees are nowhere spelt out in the plaint. The copy of the resolution unanimously passed was unknown to the court. As pointed out above, the reason of old age has no relevance to the facts and circumstances of this case. For old age it does not mean that the entire existing set up inclusive of the Society should be wiped out by way of direction. They have not confined relief for a direction, to solve such of those difficulties, having nexus to old age. Hence necessity to issue https://www.mhc.tn.gov.in/judis 93 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 directions had not been spelt out in the plaint. In the light of the decisions above referred to, on the basis of such an ill- drafted plaint, which does not contain required particulars making out necessity to issue directions, the suit under S.92 , C.P.C. is not maintainable.

In the above matter, the Hon'ble Division Bench of this Court found no material averments in the plaint for making out a case for grant of leave under Section 92 CPC. The Bench finally held the suit was not maintainable.

64. The learned Senior Counsel also referred to Order 6 Rule 4 of CPC wherein it is incumbent upon the party pleading fraud, breach of trust, wilful default etc, the particulars of which, shall be stated in the pleading. Nothing has been stated in terms of the said provisions of CPC . The learned Senior Counsel also stated that the present suit is also hit by res judicata in terms of Section 11 and he particularly referred to explanation No.IV and V appended to the Section, which are extracted hereunder.

IV. Any matter which might and out to have been made ground of defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

https://www.mhc.tn.gov.in/judis 94 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 V. Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

65. According to him, the earlier suit filed in C.S.No.156/2002, as against which, the appeals filed in O.S.A.Nos.83 and 129 of 2003, reached finality, before the Hon'ble Supreme Court of India in C.A.No.3052 of 2006 dated 14.12.2011. The present suit is therefore, barred in terms of the above section. He would therefore, submit that on this ground alone, the present suit is liable to be dismissed.

66. Thus, the learned Senior Counsels and the counsel representing the respective parties have concluded their long and winding arguments.

67. Heard the learned Senior Counsel/Counsel, assiduously perused the pleadings, materials and the case laws cited on behalf of the respective parties.

68. The fact that the first respondent is a public charitable trust is not in dispute. Therefore, the scope of consideration of this Court in an https://www.mhc.tn.gov.in/judis 95 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 application filed under Section 92 CPC would be broadly confined to appreciating two legal facets of requirement under the said Section. The Hon'ble Supreme Court of India, our High Court and various other High Courts have periodically laid down the legal principles to be taken into consideration, while dealing with the leave application under Section 92 CPC. The Courts have illustratively underscored and accentuated the cardinal principles to be followed in considering such applications.

69. The broad contours on which the principles have been laid down and consistently being followed by Courts could be culled out from various decisions cited on behalf of the parties which have been extensively extracted supra. The foremost requirement of the contexual consideration is to examine the bonafides of the interested persons instituting the suit. Since it is a suit filed in a representative capacity, the Court has to necessarily and incisively examine the bonafides of the persons who are laying the suit, whether they are truly vindicating public interest or have they any personal or vested interest against the trust, furtively disguised as public interest, while launching the litigation. The persons so interested in filing the suit are therefore under legal obligation to demonstrate before this Court about https://www.mhc.tn.gov.in/judis 96 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 their connection with the trust and their earnest concern for its proper administration in order to satisfy the requirements of Section 92 CPC.

70. The other consideration of this Court is whether there is any breach of trust, calling for a direction from this Court for administration of the trust or not? As a corollary to such consideration, this Court has to examine, whether the allegations of mismanagement of the trust have been substantiated with acceptable materials or the same have been hurled recklessly and maliciously with a view to harass the trust towards achieving any extraneous purpose.

71. In the backdrop of the above frame work of consideration, this Court would first deal with the aspect as to whether the applicants/plaintiffs herein would qualify to be treated as “interested persons” within the ambit of Section 92 CPC or not? Thereupon, this Court would examine, whether the allegations of breach of trust as contained in the plaint are well founded, supported by concrete materials, calling for its intervention in terms of Section 92 CPC. or the allegations are mere machinations, trumped up to entangle the trust in a needless litigation? https://www.mhc.tn.gov.in/judis 97 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

72. As regards the first issue is concerned, according to the plaint averments, the first plaintiff claims himself to be a devout Roman Catholic and former State Government Servant, worked as Technical Officer in Tamil Nadu Text Book and Educational Services Corporation and President of the 3rd plaintiff Society. The 3rd plaintiff is a Society registered under the Societies Registration Act, 1860 . The 2nd and 4th plaintiffs are the General Secretary and Joint General Secretary respectively of the Society. According to the plaintiffs, they have been constantly taking up issues relating to defalcation of trust properties belonging to the Christian community. It is also averred in the plaint that the 3rd plaintiff actively took part in organising Joint Christian Action Council Convention at Chennai on 20.11.2010, which was chaired by the Hon'ble Mr.Justice K.T.Thomas, (Retired) Judge of Supreme Court of India, on the topic of law to govern the use of Church property.

73. On the basis of above statements in the plaint, the applicants/ plaintiffs have come up with this application professing that they have a bonafide interest in the proper administration and management of the 1st respondent Trust, founded for the benefit of the members of the Roman https://www.mhc.tn.gov.in/judis 98 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Catholic Church by one Sir John De Monte, a Portuguese businessman and a beneficiary of the Roman Catholic Church, Madras-Mylapore Diocese. The plaintiffs claim to be the devotees and members of Roman Catholic Church, and therefore, they have a vital interest in proper administration of the trust property in terms of the will and wish of the creator of the trust late Sir John De Monte. Finding several irregularities in the administration of the 1st respondent Trust, the applicants/ plaintiffs are before this Court seeking leave to institute the suit under Section 92 CPC for administration of the trust.

74. On behalf of the contesting respondents, it has been pleaded and argued that the plaintiffs have personal interest in the matter and they have been involved repeatedly in the protest agitations against various Christian Institutions in furtherance of their vested interests under the guise of vindicating public interest.

75. In this regard reference needs to be made to the submission made on behalf of the 5th respondent, by the learned Senior Counsel Mr.R.Singaravelan, namely the issue pertaining to St.Mary's Colony https://www.mhc.tn.gov.in/judis 99 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 wherein the 2nd respondent Archbishop stated to have initiated eviction proceedings against the tenants of the said colony, as they refused to pay reasonable enhanced rents. When the rents were sought to be revised, St.Mary's Colony Welfare Association represented to the 2nd respondent, during October, 2013, sought an amicable settlement. Considering their request, the association represented by Secretary one Mr.J.Philomena, had signed the request letter, who is one of the active members of the 3 rd respondent Society. The learned Senior Counsel has pointed out as to the written statement filed on behalf of the J.Philomena wherein she had raked up the issue of St.Mary's Colony being owned by the 1st respondent Trust and there was illegal change of revenue entries in favour of the 2nd respondent diocese. In fact, a specific stand has been taken by the said J.Philomena that the 2nd respondent Archbishop had no right to file a suit for eviction, as he was only a care taker and the owner was only the De Monte Trust. As a matter of fact, it was also brought to the knowledge of this Court that the suit has been decreed and the eviction has also been ordered in O.S.No.4986 of 2014 dated 07.02.2018. Against the decree of the Trial Court, C.M.A.No.38 of 2018 has been filed by the said Philomena representing St.Mary's Colony Welfare Association against the second https://www.mhc.tn.gov.in/judis 100 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 respondent/ Archbishop before the Principal Sessions Judge, Chennai, and the same is pending as on date.

76. Further, the learned Senior Counsel also pointed out a resolution of the General Body of the third plaintiff Society dated 27.06.2016. The said Philomena and one T.Victor were two of the 25 signatories of the resolution. The resolution was passed contemplating legal action against the second respondent for mismanaging the first respondent Trust properties, particularly, drawing reference to leasing out of the property to Stella Maris College, the 6th defendant in the suit for a paltry sum. The said T.Victor was also one of the tenants who faced eviction proceedings before the City Civil Court.

77. Apart from the above, on behalf of the sixth respondent College, the learned Senior Counsel, Mr.M.S.Krishnan pointed out that the third respondent/ plaintiff has filed a Public Interest Litigation in W.P.No.13840 of 2012 and in that writ petition, a direction has been sought from the Court against the fee structure levied and collected by the college. According to the petitioner therein, the third plaintiff herein, the College was charging excess fees than what the Fee Committee had determined for https://www.mhc.tn.gov.in/judis 101 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 various courses. Ultimately, this Court vide order dated 15.07.2014, has held that on examination of the documents, no public interest was found involved in the writ petition. The matter was, therefore, posted before the learned Single Judge. Although the so called Public Interest Litigation was filed on the basis of the allegation of excess fee collected by the College, but in this suit, the 3rd plaintiff along with others have come up with the allegations against the 2nd respondent for leasing out vast extent of lands for a paltry sum to the College and thus, acting contrary to the interest of the trust revenue.

78. In consideration of the above facts, whether it is conclusively determinable that the applicants/plaintiffs herein have vested or personal interest, in filing the suit against the 1st respondent herein or it is a genuine claim by them advancing public interest, complaining against mal- administration of the trust properties by the 2nd respondent Arch bishop. Even in the absence of personal interest, this Court has to necessarily examine whether these applicants/plaintiffs have any substantive interest in the trust or it is a remote or self created interest. https://www.mhc.tn.gov.in/judis 102 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

79. Further, on behalf of the applicants/ plaintiffs a fundamental issue has also been raised questioning the authority of the 2nd respondent acting as the sole trustee of the 1st respondent Trust. In the plaint, it was averred as to when and how the trust had come into being, as a result of the last Will and Testament left behind by Sir John De Monte, a Portuguese businessman who had settled down in then Madras and left a Will and codicil on 19.07.1820 and 18.05.1821. As per the Will and the Codicil left behind by Sir John De Monte, the properties covered under the Will are to be dealt with and administered towards various charitable purposes outlined in the Testament. The learned Senior Counsels and the Counsels appearing on behalf of respective parties have taken this Court through various Clauses of the Will in order to contend as to who could legally administer the trust in terms of the Will.

80. There have been two conflicting arguments advanced on this aspect. One Mr.V.Raghavachari, learned counsel submitted that the Archbishop/2nd respondent herein cannot act as a sole trustee by relying upon Clause 30 of the Will wherein an observation is found that the management of the trust must be jointly administered, meaning that more than one trustee to be involved in the administration. In the clause, the https://www.mhc.tn.gov.in/judis 103 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 fourth respondent is also named as one of the trustees. This statement is pointedly refuted by the learned Senior Counsel Mr.Vijay Narayan, by drawing reference to the 33rd clause in the same Will wherein, it is mentioned that the trust properties after a period of time are to devolve upon the Bishop or Vicar General and his successors in the Bishopric of St.Thomas forever and he is to be considered as permanent executor and trustee. The 2nd respondent therefore becomes the sole trustee in terms of the last Will of late Sir John De Monte.

81. In any event, it was argued on behalf of the contesting respondents that the issue as to whether the second respondent can be the sole trustee is not open to debate or controversy any further, as the 2 nd respondent has been recognised as the sole trustee of the 1st respondent Trust by the Hon'ble Supreme Court of India. The Court in Civil Appeal No.3052 of 2006 dated 14.12.2011 has taken on record, the undertaking affidavit of the second respondent and disposed of the appeal, as could be seen from the proceedings of the Hon'ble Supreme Court in paragraphs 8 to 11 of the said judgment, extracted hereunder.

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8.During the pendency of the appeal in this Court, on the last date of hearing i.e., 15.11.2011, we had asked the learned Senior counsel appearing for respondents if respondent No.2 Arch Bishop of Madras, Mylapore would be in a position to give an undertaking in the form of an affidavit to show that he will neither dispose of nor part with or create any lease or deal with in any other manner with the properties of the Trust to its detriment, unless necessary permission as contemplated under Section 7 of the Act is obtained. Further direction was given to file an undertaking that the aims and objects and the purposes for which the Trust was created would be fulfilled and the last wish of the Testator would be kept in mind.

9. Pursuant to the aforesaid order having been passed by this Court on 15.11.2011, an affidavit by Respondent No.2 has been filed. The relevant portion of the said affidavit is reproduced hereinbelow:

10. After this affidavit was filed in the Court by Respondent No.2, Appellants have also filed additional affidavit bringing new facts to the notice of this Court. However, those new facts mentioned in the additional affidavit, do not form part of this litigation and at this stage, it is not proper to enlarge the scope of this Appeal.

11. After having gone through the Affidavit of Respondent No.2 and the additional Affidavit of the Appellants, we are of the considered opinion that looking to the stature of Respondent No.2, it can reasonably be expected that he would abide by the aforesaid undertaking mentioned in the Affidavit and there is no reason to doubt the bona fides of Respondent No.2."

82. As could deduced from the above proceedings, it is no more open to the applicants/ plaintiffs herein to resuscitate the issue as to who can act as trustee of the first respondent Trust. Even otherwise, Clause Thirty Three of the Will and Testament clearly and categorically would state that the entire control and management of all the affairs of the Estate are to devolve on the Bishop and he is to be considered as permanent trustee. It appears that the applicants/ plaintiffs are trying every gambit, artifice to wangle an order of leave from this Court by questioning the very trusteeship of the https://www.mhc.tn.gov.in/judis 106 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 second respondent/Archbishop. The contention is a clear ploy to shake the foundational claim of the second respondent/ Archbishop vis-a-vis his relationship with the trust, thus exposing their veiled intention aimed at targetting the 2nd respondent, in the bargain. Moreover, the Hon'ble Supreme Court has held in paragraph 13 that on a prima facie consideration, the persons who instituted the earlier suit, Mr.Menezes & others were treated as “interested persons” for that case only and by taking the undertaking affidavit of the 2nd respondent and recording the same in the order, the second respondent position as trustee has received the stamp of approval from the Apex Court. Any contest to the trusteeship of the 3rd respondent cannot any further be entertained and such plea by the applicants/ plaintiffs herein is nothing but a vexatious attempt to re-agitate the aspect of trusteeship.

83. This Court simultaneously is inclined to address the allegations of mismanagement as contained in the plaint, along with the other important aspects as to the status of the applicants/ plaintiffs. According to the applicants/ plaintiffs, there has been no transparency or accountability in the administration of the 1st respondent Trust by the second respondent Archbishop and there has been abuse of power, corruption and nepotism https://www.mhc.tn.gov.in/judis 107 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 which have become the order of the day. These strong expressions in the plaint have been amplified and illustrated, pointing to certain questionable transactions relating to the trust properties. The first of the allegations contained in the plaint was relating to long lease of prime property to an extent of 150 grounds in Boat Club Road / Chamiers Road in favour of one Sathyabama Science and Technology College and Holy Satellite Town Limited. The Trust, as a matter of fact, had filed O.P.No.219 and 220 of 2002 under Section 7 of the Charitable and Religious Trust Act, 1920, for post facto approval of the lease. This Court, however, held vide order dated 06.03.2006 that the grant of lease to the above named entities was vitiated by irregularity. Ultimately, even according to the applicants/ plaintiffs, it was cancelled immediately and the lease was recalled. In any case, the above transaction was of the year 2002 and the matter came to be ultimately, settled even according to the applicants/ plaintiffs several years ago. The said transaction, therefore, clearly falls outside the framework of consideration of this Court with reference to Section 92 CPC.

84. The plaint also contained several averments relating to the undertaking given by the 2nd respondent Archbishop before the Hon'ble Supreme Court of India in C.A.No.3052/2006. These averments in respect of the issues raised in the appeal are matters of record that attained finality https://www.mhc.tn.gov.in/judis 108 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 before the Apex Court as early as on 14.12.2011. According to the applicants/ plaintiffs, despite the undertaking given before the Hon'ble Supreme Court dated 15.11.2011, that the properties of the first respondent Trust would not be disposed of or leased without obtaining permission from the competent court, the second respondent had entered into a lease agreement with one Shree Nidhi Holding for leasing of the property of De Monte Colony at T.T.K. Road, Alwarpet, Madras. The lease agreement dated 18.01.2012 was after the undertaking given by the second respondent before the Hon'ble Supreme Court and the disposal of the appeal (C.A.No.3052 of 2016) on 14.12.2011. The said act on the part of the 2nd respondent amounted to flagrant violation of the undertaking given by him before the Hon'ble Supreme Court of India besides being contemptuous also.

85. In respect of the above allegation, as a matter of fact, dispute arose under the lease agreement resulting in filing of O.P.No.638 of 2014 under Section 11 of the Arbitration and Conciliation Act, 1996 for appointment of Arbitrator by the said Shri Nidhi Holding against the first respondent Trust. When the said O.P. was taken up for hearing, the learned Chief Justice, as he then was, has made certain observations and those https://www.mhc.tn.gov.in/judis 109 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 observations have become the focal point of contentions by the rival parties before this Court.

86. The observations of the Hon'ble Chief Justice, as he then was, in the O.P order dated 23.04.2015 are incorporated mischievously in the plaint, as if those observations, add spice and strength to the allegations of irregularity and mismanagement of the first respondent Trust. The observations made therein were entirely in relation to the conduct of the second respondent vis-a-vis the undertaking given by him before the Hon'ble Supreme Court of India and as rightly pointed out by the learned Senior counsel Mr.Vijay Narayan appearing for the first respondent Trust, it was at worst could be treated only as castigation and not to be construed as any act of mismanagement or maladministration. This Court is also of the considered view that eventually the O.P.No.638 of 2014 was ordered, referring the dispute to Arbitration vide order dated 23.04.2015. While referring the matter before the Arbitration, the Hon'ble Chief Justice, as he then was, observed in paragraph 14 as under.

14. In so far as the plea based on Section 7 of the Trusts Act is concerned, as already stated aforesaid, it is really in the nature of an advisory opinion. The opinion is https://www.mhc.tn.gov.in/judis 110 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 sought by the Court on any question affecting the management or administration of the trust property. The respondent did not think it fit to obtain such an opinion prior to entering into the lease deed with the petitioner. One may say, the respondent was fully conscious of its responsibility arising from the undertaking given before the Hon'ble Supreme Court and yet choose to ignore that. As to under what circumstances the Archbishop of Madras-Mylapore did so, apparently through his power of attorney, would have to be tested in the arbitration proceedings, though the said Archbishop is no more holding the office of Archbishop of Madras-Mylapore.

87. The action of the second respondent in entering into a lease on 18.01.2012 with M/s.Shri Nidhi Holding in respect of one of the trust properties, whether the same was right or wrong was ordered to be tested before learned Arbitrator appointed by this Court in the above said O.P. In such circumstances, reliance placed on the observations in the said O.P proceedings is an attempt by the applicants/ plaintiffs to bring the administration of the trust under a cloud. This Court does not see any breach of trust on that account and at worst it could be a breach of undertaking and that had been taken note of in the O.P. proceedings. It https://www.mhc.tn.gov.in/judis 111 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 appears to this Court that the applicants/ plaintiffs are all out to scouting for materials to contrive a case against the 1st and 2nd respondents.

88. Moving as to the other allegation in paragraph 12 of the plaint that in 2007, the second respondent was alleged to have floated a tender for leasing of 150 grounds at Benz Garden. While floating the tender, no procedure had been followed. According to the plaintiffs, the second respondent unilaterally on its own selected a firm in Bangalore called Nithish Estate and on accepting a paltry sum of Rs.5 Crores, the lease was sought to be granted as against the offer by the firm of 630 crores for development of the property. Subsequently, the said Nithish Estate failed to honor its commitment and engaged the trust in the litigation, resulting in payment of Rs.15 Crores to the firm from the estate of the first respondent trust towards settlement of the dispute. In the paragraph, it was also pointed out that by resolution dated 29.11.2010, it was decided to return Rs.15 Crores to the firm. The huge sums of money running to crores meant for charitable use had been settled in favour of a third party, entirely due to the mal-administration by the trustee and others connected with the failed project.

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89. In regard to the above, what is to be seen herein is that the applicants/plaintiffs have admitted that the above transaction, was of the year 2007 and the transaction, for whatever reason, did not materialize, ultimately. Although, Rs.15 Crores appeared to have been parted with, by the second respondent from the trust estate but no specific details have been pointed out in the plaint, regarding the circumstances, under which such payments had been made. In any case, a decision was taken to make the payment, presumably as part of the contractual obligations. Be that as it may, this allegation is in respect of the transactions happened way back in 2007 during the time of pendency of C.A.No.3052/2006 before the Hon'ble Supreme Court of India. When the Hon'ble Supreme Court accepted the undertaking of the 2nd respondent Arch Bishop and disposed of the appeal on that basis on 14.12.2011 any transaction prior to the date deemed to have been subsumed under the order. Even otherwise, an injudicious or unwise decision does not necessarily point towards mal administration calling for the intervention of this Court.

90. The next allegation as contained in the plaint is in relation to lease of 11.65 grounds of land in Benz Garden. The applicants/plaintiffs themselves have averred that the second respondent has approached this https://www.mhc.tn.gov.in/judis 113 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 Court in O.P.No.248 of 2018 and this Court vide order dated 18.04.2018 has granted permission to the second respondent to go ahead with the proposal. Even after the permission granted by this Court in O.P.No.248 of 2018, this Court is unable to appreciate how the transaction could be maligned by the applicants herein with a mindless consistency as if their Certification of approval of the transaction alone mattered. It appears as though that every contract or agreement entered into by the second respondent in furtherance of the objects of the first respondent Trust, is being anatomised and dissected for building up a case of maladministration with an obsessive view to obtain leave from this Court under Section 92 CPC.

91. The applicants/plaintiffs have come up with further objections relating to the third respondent Society, which according to them is a fictitious body functioning in the address of the second respondent Archbishop official residence. The learned counsels appearing for the respective parties relied on O.S.No.20/2014 before the Chengalpattu District Court. According to the plaintiffs, some properties belonging to the first respondent Trust had been parted with in favour of the 3rd respondent fictitious Trust and they have gone before the District Court seeking https://www.mhc.tn.gov.in/judis 114 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 declaration of the title to the schedule of property named therein. The suit was for declaration to declare the third respondent Society as an independent religious society and therefore, entitled to mutate the revenue records in respect of all suit schedule properties in its favour. It was vociferously contended on behalf of the applicants/plaintiffs by the learned counsel that some of the schedule properties in the suit were originally belonged to first respondent Trust which had been illegally and collusively given in favour of the fictitious body. The suit was filed without making the trust, a party and the defendant therein only was the second respondent herein.

92. In regard to the above, the learned Senior Counsel, Mr.Vijay Narayan has drawn the attention of this Court to a particular portion of property in dispute found in item No.26 of the schedule property situated at Covelong, Chenglepet District. He referred to various survey numbers therein and compared the same with the civil proceedings in C.S.No.563 of 1970, wherein this Court vide order dated 29.02.1980 granted permission to the second respondent Archbishop representing as a sole trustee of the first respondent estate to lease out certain lands at Covelong in favour of the defendant therein one Indian Council of Social Welfare. He has drawn https://www.mhc.tn.gov.in/judis 115 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 the attention of this Court to the survey numbers and the extent of the properties in the said suit. The survey numbers mentioned in the schedule to the above mentioned suit are different and the same do not tally with the survey numbers mentioned in the suit schedule property in O.S.No.20 of 2014. It was therefore, contended on behalf of the respondent Trust by the learned Senior Counsel that the subject property in O.S.No.20 of 2014 was in fact, owned by the second respondent Church and not the 1st respondent trust. As the claim over the said property by the 3rd respondent herein was being contested before the Chenglepet Court, ultimately, the suit came to be dismissed as not pressed on 14.10.2015.

93. This Court has taken note of the above submissions and the facts as presented and established by the documents. In fact when the survey numbers were clarified by the learned Senior Counsel for the 1st respondent Trust, there was no counter clarification from the applicants' side. In any event, the suit was eventually dismissed as being not pressed on 14.10.2015. In the light of the said fact, arraying the 3rd respondent/ defendant in the application/ suit amounted to misjoinder of parties. In the considered opinion of this Court, the above allegation is one more malicious attempt by the applicants/plaintiffs in coming up with https://www.mhc.tn.gov.in/judis 116 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 unconnected, extraneous materials and pleading recklessly with a singular view to enmesh the trust in a legal controversy.

94. The next issue relating to the leasing out of 399 grounds for 99 years to the 6th respondent College. According to the averments in the plaint that the lease amount that is being collected is nothing but a pittance and is outrageously low and paltry. It is also averred that the instead of securing the best price from out of the property, they have leased out the property which is not generating any revenue for the trust towards fulfilment of its avowed charitable objectives.

95. As far as the above allegation is concerned, as rightly contended by the learned Senior Counsel Mr.Vijay Narayan that it was very much part of the lis in the earlier proceedings which culminated in Civil Appeal No.3052/2006 before the Hon'ble Supreme Court. The focal attention of this Court has been drawn by the learned Senior Counsel to the earlier proceedings before the learned Single Judge of this Court and his order dated 06.01.2003 revoking the leave granted under Section 92 CPC in Application Nos.3081 and 3668/2002. One of the issues raised therein was https://www.mhc.tn.gov.in/judis 117 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 relating to leasing of the property to the 6th respondent College. In fact, there the learned Judge had referred to in O.P.Nos.219 and 220 of 2002 filed by the trust seeking seeking permission to lease out its properties to the College and others. However, ultimately, the learned Single Judge revoked the leave granted under Section 92 CPC on the ground that the persons instituted the suit were not interested persons in terms of Section 92 CPC and also the 1st respondent Trust was not a party to the suit.

96. When the order of the single Judge was put to challenge in O.S.A.Nos.83 and 129/2003, the Division Bench specifically dealt with this issue in paragraph 25 of the judgement. It is useful to refer to the findings of the Division Bench in paragraph No.25 of the judgement that reads as under:

administration has been made out in the plaint.

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97. The learned Division Bench has categorically held that no averments of mismanagement or mal administration has been made out in the plaint. Once the said issue had been raised and come up as part of the lis for consideration before the learned Single Judge, the Division Bench and then before the Hon’ble Supreme Court of India, culminating in the order of the Hon’ble Supreme Court of India dated 14.12.2011 in C.A.No.3052/2006, the allegations relating to the same, need to be rejected out right as being vexatious and abuse of process of the Court.

98. The learned Senior Counsel Mr.M.S.Krishnan has also referred to the lease deed dated 07.10.1958 between the 1st respondent Trust and the Institute of Franciscan Missionaries of Mary, the 6th respondent College. The lease was said to be in force for 99 years commencing from 01.07.1957. The learned Senior Counsel laid emphasis on the fact that the 6th respondent College is one of the most reputed and premier Institutions in this part of the country. The college has been rated with extraordinary grades and has been declared as a College with potential for excellence by the University Grant Commission. This Court finds that in fact, the trust has https://www.mhc.tn.gov.in/judis 119 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 been fulfilling its objects in leasing out the lands to an Institution imparting higher education of very high quality and standard.

99. The said allegation is also to be repelled for yet another reason. The 3rd plaintiff Society had earlier filed a writ petition in W.P.No.13840/2012 questioning the fee structure adopted by the College behind the garb of advancing public interest. But , the Hon’ble First Division Bench of this Court, while heard the matter after examining the materials filed in support of the writ petition found, not a shred of material having a public interest involved in the writ petition. The writ petition was ultimately ordered to be heard by a Single Judge, vide its order dated 15.07.2014. The so called public interest which was sought to be espoused by the very same 3rd respondent stood exposed and was discountenanced. Having failed to maintain the writ petition on the premise, the same being a Public Interest Litigation, the 3rd applicant/ plaintiff has come up with the present allegation involving the College. What the 3rd applicant/plaintiff could not achieve in a public law remedy and failed miserably to convince the Court that they were espousing a public cause, has now latched on to the private law remedy, targeting the College, in effect. This Court, https://www.mhc.tn.gov.in/judis 120 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 therefore, has no hesitation to hold that the allegation with reference to the 6th respondent College is founded on malice and ill will and therefore, the same is to be rejected.

100. Last of the allegations pertaining to the 7th respondent hospital viz.,Isabella Hospital, Mylapore, Chennai. According to the applicants/ plaintiffs, the hospital was founded by Sri De Monte for the ailing citizen of the locality but turned out to be money spinner. The hospital has also not been paying any money to the trust for years together. The poor and needy get no treatment free of cost in the hospital.

101. The above allegation was part of the protest and demonstration by the 3rd plaintiff Society reflected in the publication of the news letter dated May 2017 wherein this Court's reference has also been drawn to the same. This was specifically refuted by the learned Senior Counsel Mr.Vijay Narayan for the 1st respondent Trust. According to him, the news letter appeared to have stated that the late Sir JohnDe Monte bequeathed large sums of money through his Will to his relatives, Company employees, servants and to charitable hospital at Luz, now known as Isbella hospital. https://www.mhc.tn.gov.in/judis 121 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 He submitted in this regard that it is a complete falsehood and contrary to facts. The hospital, in fact, came into existence only on 19.03.1949. The Will was however, executed by late Sir John De Monte as early as in 1820 and at that time, the 7th respondent Hospital did not come into existence at all.

102. The protestation in regard to the 7th respondent hospital, is ultimately proved to be founded on falsehood. In fact, no materials whatsoever is relied on by the applicant in support of the above. The Hospital was said to have been founded and established only in the year 1942 and the trust had nothing to do with the same. The 7th respondent hospital appeared to be an independent entity established by different Christian missionary. When this fact was brought to the notice of the Court, there was no semblance of rebuttal from the applicant/plaintiff. Three paragraphs in the counter affidavit of the 7th respondent would very clearly clarify the above facts. Paragraphs 3 to 5 are extracted hereunder:

https://www.mhc.tn.gov.in/judis 123 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

103. In the face of the above uncontroverted fact, the allegation relate to the 7th respondent hospital, are ex facie frivolous and vexatious too. Such reckless allegations once again expose complete falsehood and deception of the applicants/ plaintiffs in putting forth a case ostensibly for serving their ends. The plaintiffs, calling themselves as pious christians belonging to Roman Catholic Church appeared to be self appointed custodians and guardians of protecting properties belonging to Roman Catholic Church or any Institution which profess Roman Catholic faith. By establishing an umbrella Society professing to a subscribe to the faithful they have unilaterally anointed themselves in the vanguard of vindicating public interest, in particular, protecting trust properties belonging to the Christian community.

104. Even assuming that the applicants/ plaintiffs have general interest in the protection and proper management of all the properties belonging to the christian community, particularly, with reference to their faith, whether such general interest can provide them a locus standi or legal platform to be recognised as an interested persons in terms of Section 92 https://www.mhc.tn.gov.in/judis 124 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 CPC is to be examined with reference to certain case laws, cited on behalf of the parties hereunder.

105. Before adverting to the case laws on the above aspect, one other allegation needs to be specifically addressed to, as stated in the plaint about the involvement of the 4th respondent diocese. The answer to this allegation can be easily found with reference to the 4th respondent counter affidavit filed in the earlier proceedings before this Court and also the submissions made on its behalf by the learned counsel Mr.P.B.Balaji herein.

106. In O.A.No.567 of 2002 in C.S.No.156/2002, the same 4th respondent was made a party and in the counter affidavit filed in the said proceedings dated 25.04.2002 a clear stand had been taken by the Archbishop of Goa that after re-organisation of the Church structure of all the diocese in the country, the 4th respondent ceased to have any role in the management of the 1st respondent Trust. The counter affidavit, in fact prayed for dismissal of the suit as against them as they were not necessary parties in the suit.

https://www.mhc.tn.gov.in/judis 125 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

107. Even before this Court, the learned counsel Mr.P.B.Balaji representing the 4th respondent has categorically contended that the 4th respondent is not a necessary party and prayed for dismissal of the application/suit as against them. The counter affidavit filed to that effect has stated that the Arch diocese of Goa has nothing to do with the Arch diocese of Madras-Mylapore after the re-organisation of Church structure. In this regard, paragraph No.3 of the counter affidavit filed by the 4th respondent is extracted hereunder.

3. I submit that at the time of executing the Will of Sri John D'Monte, the Archdiocese of Goa was part of the Portuguese territories in India. Sri John D'Monte was a Portuguese and as the Archdiocese of Goa had as it suffragan the Diocese of Santhome, the provision pertaining to rendition of account was apparently given. As admitted by the applicants in paragraph 43, the Church structure of the Dioceses in the Country have undergone re-organisation. Consequently, the question of exercising any supervisory jurisdiction on a suffragan Diocese did not arise at all after reorganisation.

108. In the face of such clear position adopted by the 4 th respondent themselves, arraying the 4th respondent as a party by the plaintiff herein is once again, a reckless attempt to add parties who have no stakes https://www.mhc.tn.gov.in/judis 126 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 whatsoever in this litigation. The applicants/plaintiffs while filing the suit, have not even taken minimum efforts to ascertain and verify as to which are the parties necessary and proper to be added in the lis before this Court. The off hand approach in adding unnecessary parties only exposed the hollowness of the claim of the applicant/plaintiffs that they are interested persons in the proper management of the 1st respondent Trust. Their intention is thus clear by making as many imaginative allegations, craftily forcing this Court to intervene in the affairs of the Trust, at their instance.

109. Now reverting to the case laws touching upon the core legal aspect as to the scope and application of Section 92 CPC and the parameters to be considered by Courts for granting and refusing leave, the following decisions are referred to once again, along with the reproduction of the text of Section 92 CPC.

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 https://www.mhc.tn.gov.in/judis 127 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 in the trust and having obtained the 2 [leave of the Court], 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), or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in https://www.mhc.tn.gov.in/judis 128 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. 3

[(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 :

vs. Darshan Singh & Ors.). The relevant paragraphs 8 and 9 relied on by the learned counsel have been extracted supra. The Hon'ble Supreme Court laid the proposition that the maintainability of the suit under section 92 CPC depends upon the allegation in the plaint and does not fall for decision with reference to the averments in the written statement. In fact, in the said decision , the Hon'ble Court has also referred to Swami Paramatmanand Saraswati case and extracted the observations made in paragraph therein as under.

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.

https://www.mhc.tn.gov.in/judis 130 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

111. The point that has been repeatedly emphasised by the Hon’ble Supreme Court and other High Courts is that the allegation of breach of trust is not substantiated and that the plaintiff has not made out a case for a direction by the Court for proper administration of the trust, the very foundation of the suit under section 92 would fail. Further, as could be seen above, even if all the ingredients of a suit under Section 92 are made out, but plaintiffs are not seeking to vindicate public interest, but their personal interest, the same would fail to pass the test under section 92 for grant of leave.

112. ILR 1980 Kar 1051 ( The Church of South India v. Rev.D.I.Ananda & Ors.).

As far as the above judgment of the Karnataka High Court is concerned, several paragraphs 4(iii) & (iv), 20, 24 and 25 have been cited and extracted supra. The High Court has referred to several decisions as could be seen in the extracted paragraphs. Herein also, the Court has held that the discretion to grant leave is entirely depending on the facts of each case and that the opponents to the leave application would not lose their right to oppose. The Court has further held that while considering the https://www.mhc.tn.gov.in/judis 131 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 application, the Court has to see only the allegation made in the application and the proposed plaint, without holding an enquiry into the truth or otherwise of those allegations.

113. The Court further held that the opponents are only entitled to show that all or any of the factors necessary to give leave do not exist or any other threshold bar like a previous suit filed by two or more persons on the very same allegations and for the very same reliefs had been dismissed by that or another Court. The observation in paragraph 25 is reproduced hereunder.

25.A suit filed under Section 92 of the Code is a suit of a special nature (vide Swami Parmatmanand Saraswativ.Ramji Tripathi [(1974) 2 SCC 695 : A.I.R. 1974 Supreme Court 2141.] In considering application for grant of leave, the Court has to consider (i) whether there is a public trust; (ii) whether there are allegations alleging breach of trust or the directions of the Court was necessary for the administration of such a trust; (iii) that the suit to be filed must not only be in the interest of the plaintiffs individually but in the interest of the public or in the interest of the trust itself; and (iv) that the relief to be claimed in the suit should be for one of the reliefs mentioned in Section 92 of the Code. While considering an application, the Court has to see only the allegations made in https://www.mhc.tn.gov.in/judis 132 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 the application and the proposed plaint, without holding an inquiry into the truth or otherwise of those allegations. Even the opponents are only entitled to show that all or any of the factors necessary to give leave do not exist or any other threshold bar like a previous suit filed by two or more persons on the very same allegations for the very same reliefs had been dismissed by that or another Court. What pleas can be urged as threshold bar cannot be exhaustively enumerated but has to be decided on the facts and circumstances of each case. An inquiry under Section 92 is very limited. An examination of the order made by the learned District Judge discloses that he has not really applied his mind and has not found that leave was necessary to be granted and in that view also it is clear that he has acted with material irregularity affecting his jurisdiction. The above observation of the Court is very relevant and to be applied squarely to the present case. The instances of mal- administration or irregularities pointed out in the affidavit and the plaint were in substance had come up for the judicial scrutiny in the earlier proceedings in O.S.A.Nos.83 and 129 of 2003 which culminated in Civil Appeal No.3052 of /2006 and the order of the Hon'ble Supreme Court dated 14.12.2011. On this aspect alone, the application seeking leave could be rejected. https://www.mhc.tn.gov.in/judis 133 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

114. 2004(4) CTC 641 ( B.D.V. Rangarathinam & Ors. vs. Sri Bakthositha Perumal Temple, Sholinghur & Ors. ).

In this case, paragraph 10 of the said judgment has been relied upon and extracted supra. Paragraph 10 merely enumerated the conditions to be specified to apply Section 92 of the Code of Civil Procedure. It referred to Charan Singh 's case and Paramatmanand Saraswati 's case. The Court has made trite observation that the allegation in the plaint alone to be looked into in the first instance to see whether the suit falls within the ambit of Section 92 of the Code.

115. 2004(13) SCC 402 (All India Women's Conference & Ors. vs. sarla Shah & Ors.).

The above citation relating to finding of the Hon'ble Supreme Court on the factual context of that case and the original leave granted by the High Court came to be upheld. Therefore, the same cannot be treated as legal precedent or a statement of law and the decision of this Court cannot be fashioned on that basis.

116. 2012(6) CTC 721 ( Nadigar Sangham Charitable Trust v. S.Murugan @ Poochi Murugan ) https://www.mhc.tn.gov.in/judis 134 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 The learned counsel for the applicants/ plaintiffs has relied upon extensively with reference to paragraphs 20 to 26, 34 to 37 and 40 of the judgement by the Division Bench of this Court. Here again, the Division Bench has adverted to Hon'ble Supreme Court's decisions and other High Courts and held that while granting leave, the Court must be satisfied on a prima facie consideration and no adjudication process was involved while coming to any conclusion. While granting leave, the Court has to consider only certain fundamentals which are required to be satisfied to entertain a suit under Section 92 CPC. It went to hold in paragraph No.35 as under.

35.The Court has necessarily a duty to protect the interest of the Public Trust. A Public Trust should be administered in a transparent manner. While dealing with an Application for leave under Section 92 , C.P.C., the Court should not adopt a hyper-technical approach. In case the allegations in the Plaint are baseless and calculated to defame the trustees and there are no materials at all to form a prima facie view of the matter, the Court would be justified in refusing to grant leave. There cannot be a hard and fast rule in a case of this nature involving a public charity. In fact the reason for obtaining leave itself is to protect the Trustees from being subjected to unnecessary harassment and to avoid an unwanted litigation involving the Trust. The Plaintiffs in a Suit under Section 92 of C.P.C. is only bringing it to the attention https://www.mhc.tn.gov.in/judis 135 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 of the Court about the alleged illegality committed by the Trustees in the office and the need for removal of such trustees or to frame a comprehensive scheme for the Trust. In case the Court is convinced that the Suit was filed for vindication of public rights technicality would not stand in the way of entertaining the Suit. While granting leave, the Court is only considering certain fundamentals, which are required to be satisfied to entertain a Suit under Section 92 of C.P.C. The Division Bench, in the light of the above observation has held that the primary duty of the Court is to protect the interest of the trust. The Court has succinctly remarked that reason for obtaining leave itself is to protect the trustees from being subjected to harassment and to prevent unwanted litigation involving the trust. In the teeth of the legal principal evolved by the Courts that requirement to obtain leave is intended to protect the trust from meddlesome persons targeting the trustees and its properties, the consideration of this Court is to focus on the benevolent and selfless interest of the applicants/ plaintiffs herein with the trust and their bonafides need to be fathomed out as the most essential part of the judicial scrutiny in terms of Section 92 CPC.

117. (2020) 4 SCC 321 ( Ashok Kumar Gupta & another Vs. Sitalaxmi Sahuwala Medical Trust & Others ).

https://www.mhc.tn.gov.in/judis 136 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 In this case also, the Hon'ble Supreme Court has enumerated the conditions to be fulfilled for seeking leave under Section 92 CPC. The three conditions are required to be mandatorily satisfied. One, the trust in question is created for public purposes of charitable and religious nature. Two, there is breach of trust or a direction of Court is necessary in the administration of such a trust and three, reliefs claimed is one or other of the reliefs as enumerated in the said section. The Court has finally held that if any of the three conditions is not satisfied, the matter would be outside the scope of Section 92 CPC.

118. From the cumulative and comprehensive reading of the decisions relied upon by the counsels, this Court eventually finds the ratio on the application of Section 92 CPC is pure and simple. The endeavour of Court is essentially to be oriented towards protection of the public trust, against which a suit is instituted by persons/entity claiming to be interested persons.

119. This Court therefore need to examine the entirety of the case from the above perspective. The legal principles as evolved and reiterated by the Courts are remarkably pellucid, unclouded on two aspects of https://www.mhc.tn.gov.in/judis 137 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 consideration of the Courts. One is, that persons who are seeking leave must unequivocally establish their altrulistic credentials that they are vindicating public interest, sans any personal or private interest or stakes. As a corollary they need to also demonstrate that they have more than general or contingent interest in the administration of the trust. The second limb of consideration is whether there is any breach of trust or a direction from the Court is warranted for the administration of the trust or not? 108. The Courts have held even if all the ingredients under Section 92 are fulfilled, yet it can refuse leave on the ground that the persons who seek leave are not persons who are said to be vindicating public interest. Concommittedly, even if the persons are genuinely interested in advancing public interest, yet the Court may find that there is no breach of trust and no direction required for proper administration of the trust and refuse to grant leave.

120. Retracing the legal aspect of “interested person” in terms of Section 92 CPC., this Court has to see what is the special interest the applicants/plaintiffs have with the administration of the 1st respondent trust. In the plaint, they have averred that the 3rd plaintiff along with the other plaintiffs are involved in the upliftment of poor and the needy and https://www.mhc.tn.gov.in/judis 138 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 have been constantly taking up issues relating to the defalcation of the trust properties belonging to the Christian community. In fact, in the plaint, there is also a dropping of the name of former Supreme Court Judge Hon'ble Mr.K.T.Thomas who said to have chaired a meeting of the Joint Christian Action Council Convention at Chennai in 2010 organised by the 3rd plaintiff herein on the topic of law to govern the use of Church properties. From the essence and the entirety of the averments what could be gathered is that the applicants/plaintiffs, wherever there is an issue relating to any improper administration of trust properties meant for the beneficial of the Christian community, they take up the cudgels for protection and proper management of such properties.

121. Merely by a registration of the Society and calling itself a Federation of the catholic faithful, the Society cannot rightfully claim to represent the entire Catholic community. The persons or the Society need to demonstrate before this Court with supportive materials that are unimpeachably vindicating public interest they represent. In this case, it has not been demonstrated in the plaint in what way the applicants/ Society have any special interest in respect of the 1st respondent Trust apart from narrating a line or two about their working towards upliftment of the poor https://www.mhc.tn.gov.in/judis 139 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 and needy and taking up the issues of mal-administration of the properties belonging to the Christian community.

122. One important perspective ought not be lost sight of in this protracted needless judicial labyrinthine exercise as to the character of the trust left behind by the late Sir John De Monte. From the entirety of the uses delineated in the exhaustive last Will and Testament of late Sir John De Monte dated 19.07.1820, nowhere it could be found that the Trust was completely dedicated to the Roman Catholic Church. No doubt, the 2nd respondent Arch Bishop has been the successor in interest as a permanent Executor and Trustee as per Clause 33 of the Will, but the trust properties and the trust cannot said to be falling with the ecclesiastical jurisdiction of the Roman Catholic Church of which, the 2nd respondent is the head of the Madras Mylapore Bishopric. In fact, in the counter affidavit filed on behalf of the 1st and 2nd respondents, this aspect has been referred to. The trust created out of the estate left behind by a Portugese businessman Sir John De Monte, in which, the 2nd respondent Archbishop has been willed to act as a sole trustee and permanent executor in terms of the last Will and testament, the administration of the trust does not ipso facto become integral part of the catholic Church and its ecclesiastical regime. https://www.mhc.tn.gov.in/judis 140 A.No.1423 of 2019 in C.S.D.No.140041 of 2018

123. In the above said circumstances, pitchforking themselves as “interested person” in the 1st respondent trust by reasons of they being devout Catholics is fundamentally fallacious, delusive and invalid. The Courts have held that persons claiming to vindicate public interest must show case substantive interest in the particular trust and not merely a remote, fictitious and contingent interest. In fact, the learned Senior Counsel Mr.Sriram Panchu, in his brief but effective submission, has pointed out this fact while referring to the decision of the Division Bench in O.S.A.Nos.83 and 129 of 2003. The Division Bench had referred to a decision in the matter of C.Kalahasti and others vs. R.Sukhantharaj and others, (1975 (88) LW 577) and observed as under:

In this case, a Division Bench of this Court held that the whole object of Section 92 is to prevent persons from interfering, by virtue of the Section, with the administration of charitable trusts merely in the interest of others and without any real interest of their own. The person filing a suit must stand on the special relationship with the trust as distinct from the rest of the community in respect of the suit trust, so that he https://www.mhc.tn.gov.in/judis 142 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 may have a particular direct relationship with the institution and to hold that any member of a public who may have a distinct or indirect connection or relationship with the institution, is a person having interest in the trust, would dilute the requirement of Section 92."

The above concise and seminal observation of the Division Bench is the guiding principle to bear, while judicially examining the leave application filed by “interested persons” claiming to vindicate public interest.

124. In line with the above principle, the relationship of the applicants/plaintiffs, vis-a-vis the 1st respondent, if examined, no special relationship could be established. It is not the case of the applicants/plaintiffs that at any point of time they had been associated with the trust. In the complete absence of any relationship with the 1st respondent Trust questioning every activity of the trust and filing a suit in a representative capacity in the guise of vindicating public interest could be construed as nothing but a charade. The very basis to the claim of legitimacy to represent the community of a particular Christian faith itself being doubtful, their claim of altruistic intention in protecting the trust properties can only be construed as a ruse to advance their vested interests. https://www.mhc.tn.gov.in/judis 143 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 The conclusion as above is fortified by the above narrated reasons that the applicants/ plaintiffs have come up with reckless and downright mendacious allegations having no regard to its truthfulness.

125. From the materials that are placed on record and also certain facts which have been brought forth on behalf of the 5th respondent with reference to the eviction proceedings relating to St.Mary's Colony, the target of the applicants/ plaintiffs herein appeared to be the 2nd respondent Archbishop. The pamphlets, demonstration materials that have been made available would show that they have running feud and an axe to grind against the 2nd respondent Archbishop and the present suit has been filed ostensibly with an oblique motive take on the 2nd respondent Archbishop with an unrighteous view to harass and unsettle him in the process.

126. In the conspectus of the above judicial discourse, this Court without a modicum of doubt could conclude that the present application has been filed to harass the 1st respondent Trust. Further the disputes relating to the transactions substantially have been examined and concluded in the earlier proceedings as aforementioned. The allegations in https://www.mhc.tn.gov.in/judis 144 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 entirety as contained in the plaint are found to be completely baseless and unfounded and unsustainable, both factually and legally. Most importantly, the applicants/ plaintiffs herein cannot even remotely call themselves as "interested person" in terms of Section 92 CPC read with various rulings of the Hon'ble Supreme Court and this Court. On the other hand, the facts and circumstances, force this Court to come to an inexorable conclusion that the applicants/ plaintiffs have meddlesome interests far from having any benevolent, altruistic interest in the administration of the 1st respondent Trust. Their soi-disant claim to represent community interest of the catholic faithfuls and they have a right to question the activity of the trust, is to be discountenanced both in law and on facts.

127. This Court, having taken a decision to reject the application is also concerned with the enormous time dissipated on this litigation. Every concerned litigant/citizen has a stake, how a judicial time of this Court being judiciously utilized on litigation. The applicants/plaintiffs have come up with vexatious and a obfuscated case forcing not only the respondents to respond, but forced this Court to expend undeserving time, in hearing prolonged arguments by counsels representing the parties raptly. Behind the cloak of deft advocacy, a simple application seeking leave under section 92 https://www.mhc.tn.gov.in/judis 145 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 CPC . has been made to appear monstrously abstruse resulting in elongated tortuous judicial expatiation. This Court, in the circumstances, though initially was inclined to impose exemplary cost, but refrained from doing so for the reason that dismissal of the application with exemplary cost would leave the 3rd respondent society stigmatised permanently affecting its claim to represent the Catholic faithfuls. The applicants/ plaintiffs are hereby admonished that while taking up similar cases claiming to promote community/public interest in future, they shall not resort to mindless and wild allegations with a singular objective to succeed in their endeavour.

128. Finally, the application is to be rejected holding that the applicants/ plaintiffs are not " interested person" within the meaning of Section 92 CPC. The application is not filed with solemn view to vindicate public interest. The allegation of mismanagement or mal-administration are found to be without substance and basis. The application is also an attempt to re-agitate many of the issues which had been settled in the earlier proceedings in C.S.No.156/2002, O.S.A.No.83 & 129 of 2003 and C.A.No.3052 of 2006 as aforementioned. Thus the application is intended to harass the trustee and the Trust. The application also fails for misjoinder of parties (3rd , 4th and 7th respondents)As far as he legal ground relating https://www.mhc.tn.gov.in/judis 146 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 to the limitation, though prima facie, the objection has considerable force, but this Court is not inclined to hold conclusively one way or the other, in view of the application being rejected wholly on merits. Likewise, the other legal issue raised as to the application of section 11 CPC and the principle of "Res judicata", for the same reason, this Court is inclined to deal with the said objection.

129. Accordingly, the Application is dismissed. Consequently, C.S.D.No.140041 of 2018 is rejected. No costs.

17.11.2021 vsi https://www.mhc.tn.gov.in/judis 147 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 V.PARTHIBAN,J.

vsi Pre-delivery order in A.No.1423 of 2019 in C.S.Diary.No.140041 of 2018 17.11.2021 https://www.mhc.tn.gov.in/judis 148 A.No.1423 of 2019 in C.S.D.No.140041 of 2018 https://www.mhc.tn.gov.in/judis 149