1. The present revision has been preferred by the defendants (hereinafter referred to as 'applicant') against the judgment and order dated 16.12.2020 passed by Additional District Judge, (FTC), Mahoba granting leave to suit under Section 92 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC')
2. The facts, in short, are that the respondents-plaintiffs (hereinafter referred to as 'respondent') instituted a suit under Section 92 of CPC praying for a decree to remove the applicants from the trustee in Shree Ram Laxman Janakiji Vakai Mandir, Dubiyana, District Mohoba and further, the applicant no.1 be directed to submit the account of trust and to return the money of trust which is in the hands of applicant no.1. Further relief prayed was that a trustee be appointed in the trust to manage the property and temple as per the trust deed.
3. The plaint case is that one Shiv Charan Lal was the owner of a one-story house, the shops situated in Khanga Bazar Grantganj, District Mahoba, two-third part of Khata Khewat Number-2, Mauja Tindauli Mohal Dariyaw Patti Murtaja Hussain Khan, Pargana Mohaba, and one Bagh adjacent to Ramleela. He got constructed a Devalya known as Ram Laxman Janakiji. He executed a trust deed dated 06.10.1909 registered on 07.10.1909 to manage the temple. The aforesaid properties owned by Shiv Charan Lal were dedicated to Shree Ram Laxman Janakiji by the trust deed and proceeds of said property are to be used for maintenance, Pooja, and Bhog of the temple. Trust is a public charitable trust. The temple is in a dilapidated condition, and the applicant no.1 who manages the trust is not maintaining the temple from the income of the properties of the trust. Further, the allegation in the plaint is that the trust owns a big market consisting of small shops over the house owned by the Trust which has been let out on rent. The income of the trust is being used by applicant no.1 for his personal use. It is further stated that a part of shops owned by the trust has been let out to Union Bank of India at the rate of Rs.17,738/- per month and rent paid by the bank is also used by applicant no.1 for his personal use. The respondents claim that they belong to the family of the applicants and used to visit the temple for Pooja and as such, they have an interest in the temple of trust. The relevant paragraphs of the plaint are extracted herein-below:-
"1-यह कि श्री शिवचरन लाल पुत्र श्री भैरो प्रसाद तिवारी निवासी महोबा खास एक मंजिल दुकान पुख्ता वाकै खनगा बाजार स्थित ग्रान्टगंज कस्बा महोबा व खाता खेवट नम्बर-2 मौजा तिन्दौली मोहाल दरयाव पट्टी मुरतजा हुसैन खां परगना महोबा को दो तिहाई व एक बाग जो रामलीला से मिला हुआ है के मालिक व काबिज थे। उन्होने एक शिवाला पुख्ता श्री राम लक्ष्मण जानकी जी का कस्बा महोबा में बनवाया था। उसी मरम्मत व भोग व पूजा आदि के सम्बंध में जायदाद हस्ब तफसील जैल को उक्त श्री रामलक्ष्मण जानकी जी ट्रस्ट को जरिये रजिस्ट्रीशुदा ट्रस्टनामा दिनांकित 6 अक्टूबर 1909 को तहरीर किया जिसकी रजिस्ट्री बही नम्बर 1 जिल्द नम्बर 22 के सफा 154 ता 156 बनम्बर 188 तारीख 07 अक्टूबर सन्-1909 को रजिस्ट्री की गयी।
2- यह कि उक्त ट्रस्टनामा के अंतर्गत आराजियात हस्ब तफ्सील जैल क मालिक श्री रामलक्ष्मण जानी जी वाकै कस्बा महोबा हुये और उपरोक्त जायदाद से उक्त मंदिर की देख रेख पूजा व भोग आदि का किया जाना तय किया गया था।
4- यह कि उपरोक्त ट्रस्ट राम लक्ष्मण जानकी जी एक सार्वजानिक धार्मिक पब्लिक चैरीटेबुल ट्रस्ट है जिसके कि उक्त सर्वराहकारान कायम किये गये थे।
8- यह कि उक्त ट्रस्ट का मंदिर बड़ी जीर्ण शीर्ण स्थिति में है और उस पर कोई खर्च प्रतिवादी नम्बर 1 जो ट्रस्ट का इन्तजाम करता है खर्च नहीं कर रहा है और वह मंदिर स्वतः गिराऊ हालत में है।
9- यह कि उपरोक्त ट्रस्ट की सम्पत्ति भवन/दुकान स्थित ग्रान्टगंज जो मुन्दर्जा शेड्यूल अ मे है वह एक बहुत बड़ा मार्केट है और उस दुकान में बहुत सी छोटी छोटी दुकाने बनी है मे ट्रस्ट के बहुत से किरायेदारान आबाद है जिससे ट्रस्ट की आमदनी लाखों रूपया माहवार किराया आता है जो प्रतिवादी नम्बर 1 स्वतः वसूल कर रहा है। यहॉ तक कि उक्त ट्रस्ट की सम्पत्ति में दुकान का जुज भाग जिसका क्षेत्रफल 1267 वर्ग फिट है का किरायेदार यूनियन बैंक आफ इण्डिया मुबलिग 17738/-रू० माहवार का है इसके अतिरिक्त अन्य दुकाने अन्य किरायेदारों को अलहदा अलहदा बड़ी बड़ी किराये की रकमो में उठायी गयी है और उक्त दुकानों से लाखों रूपया माहवार किराया जो ट्रस्ट का आता है वह सब प्रतिवादी नम्बर 1 वसूल करता है लेकिन ट्रस्ट का कोई बैंक खाता नहीं खोला गया है और न ही ट्रस्ट के किसी बैंक एकाउन्ट में वह रूपया जमा किया जाता है और न ही उक्त मंदिर की पूजा पाठ मरम्मत देख रेख में ही खर्च किया जाता है बल्कि वह रूपया प्रतिवादी नम्बर 1 अपने निजी खर्च में लाता है और उसने ट्रस्ट की अमानत मे खयानत की है जिससे कि ट्रस्ट का बहुत बड़ा नुकसान होता है।
10- यह कि जो ट्रस्ट का बाग स्थित है उसकी भी जो आमदनी होती है वह प्रतिवादी संख्या 1 स्वयं अपने इस्तेमाल मे लाता है और ट्रस्ट में या मंदिर में पूजा पाठ आद मे कतई खर्च नहीं करता है और उसका भी वह दुरूपयोग अपने स्वयं इस्तेमाल में लाता रहता है।
11- यह कि ट्रस्ट भूमि जो मौजूदा तंदौली में स्थित है उसकी भी बहुत कसीर रकम ट्रस्ट की आती है जिसको भी प्रतिवादी नम्बर 1 स्वतः लेता है और अपने निजी प्रयोग मे लाता है जबकि यह सारी आमदनी ट्रस्ट की सम्पत्ति से है और प्रतिवादी नम्बर 1 उसका दुरूपयोग कर रहा है और उक्त ट्रस्ट एक पब्लिक ट्रस्ट होने के नाते जो उसने अमानत मे खयानत करके ट्रस्ट का रूपया हजम कर लिया है इसलिये प्रतिवादी नम्बर 1 सर्वराहकार रहने का हकदार नहीं है और न ही ट्रस्ट की सम्पत्ति का इन्तजाम ही करने का हकदारी है।
13- यह कि यह नहीं जो सम्पत्ति उपरोक्त ट्रस्ट की सम्पत्ति है उसकी एक दुकान भूखण्ड 1267 वर्गफिट यूनियन बैंक आफ इण्डिया को 17738/- रू० माहवार किराये पर जो उठाया है उसका रजिस्ट्रीशुदा किरायानामा 13 जनवरी सन् -2011 को 15 वर्ष लीज पर यूनियन बैंक आफ इण्डिया को श्री मनोज तिवारी के जरिये उठा दिया जबकि मनोज तिवारी न उक्त भवन का मालिक है और न ही काबिज है और न ही उपरोक्त ट्रस्ट राम लक्ष्मण जानकी का ट्रस्टी ही है बल्कि वह प्रतिवादी नम्बर 1 का लड़का चन्द्रशेखर का लड़का है उसको उक्त दुकान किराये पर उठाने का कोई हक नहीं है और इस तरीके से ट्रस्ट की आमदनी 17738/- रूपया माहवार यह लोग मिलकर जब्त कर रहे है और ट्रस्ट को नुकसान पहुँचा रहे है।
14- य़ह कि वादीगण चूंकि गया प्रसाद के वारिसान है इसलिए उनका हित ट्रस्ट में निहित है और वह मंदिर भी बराबर जाते रहते है और उसी मंदिर के पास रहते है। इसलिए उनका इस मंदिर के इन्तजाम करने में बहुत कुछ योगदान पहले रहा।"
4. Based on aforesaid pleadings, the respondents have prayed for the following reliefs.
"(अ) यह कि प्रतिवादी नम्बर 1 बाबूलाल के विरूद्ध यह वाद डिक्री किया जावे और उन्हें श्री रामलक्ष्मण जानकी जी मंदिर वाकै महोबा ट्रस्ट व ट्रस्टी के पद से हटाया जावे।
(ब) यह कि प्रतिवादी नम्बर 1 से उपरोक्त ट्रस्ट का हिसाब किताब आज तक का करने के उपरांत जो रकम की प्रतिवादी नम्बर 1 के जिम्मे निकले उसे ट्रस्ट को दिलाया जावे।
(स) यह कि अ रामलक्ष्मण जानकी जी का कोई योग्य सर्वराहकार मुकर्रर किया जावे जो उक्त ट्रस्ट की सम्पत्ति व मंदिर का इन्तजाम नियमानुसार करता रहे।
(द) यह कि खर्चा मुकदमा वादीगण को प्रतिवादीगण से दिलाया जावे।
(य) यह कि अन्य न्यायोचित उपशम जो करीने इन्साफ अदालत हो बहक वादीगण विरूद्ध प्रतिवादीगण सादिर फरमायी जावे।"
5. The respondents also filed an application on the same averments as in the plaint to leave for the institution of the suit as contemplated under Section 92 (1) of CPC along with plaint.
6. The leave application was contested by the applicants contending inter alia that the respondents are not the family members of the applicants. It is also submitted that trust is a private trust and, therefore, the provisions of Section 92 of CPC are not applicable. It is also pleaded that the respondents have not submitted any claim according to which trust should be managed. Besides the above, applicants took several other grounds.
7. The trial court after noticing the contention of applicants as well as respondents and the conditions stipulated in the trust deed in terms of which the trust is to be managed, recorded a prima facie opinion that trust is a public trust. The trial court while recording the said finding has considered seven stipulations in the trust deed in terms of which trust is to be run. The first condition is that the Government tax is to pay from the income of the trust, and the income of the trust is to be used for expenses incurred in Bhog and Pooja, etc. of the temple. No trustee has the right to transfer the property of trust or can do any business for his benefit from the property of the trust. The second condition relates to the appointment of Pujari for the Temple. According to the third condition, the income accrued from the property of trust shall be used for Bhog and Pooja, and trustees and their heirs shall not object to the expenses which are to be incurred for bhog or pooja and they shall maintain the accounts of expenses. The fourth condition provides that if the trustee is ineligible or refuses to act as trustee, the Peshwakar Malik or head of the family of the Founder of Trust will act as trustee. The fifth condition provided that if any trustee wishes to start any new venture not mentioned in the trust deed, the accounts shall be maintained and audited by five reputable persons of the Panchayat. As per the sixth condition, if there arises any difficulty in paying the state revenue, the state revenue can be paid from other property of the trust. According to the Seventh Condition, the Founder reserves the right to change manager and management of the trust, and the manager shall strictly follow the conditions of the Trust in managing it; if any member does not wish to continue, he may be replaced by a generous and competent person by the Panchas who shall also abide by the conditions of the Trust.
8. After noticing several conditions of the trust deed, the trial court did not agree with the contention of applicants and opined that trust is not a private trust. Accordingly, it held that the conditions envisaged under Section 92 of CPC for grant of leave to institute a suit are present, consequently, it allowed the application of respondents and granted leave to institute the suit.
9. Challenging the aforesaid order, learned counsel for the applicants has submitted that the trial court has committed a manifest error of law in recording a finding that trust is a public trust since reading of trust deed discloses that the beneficiaries are not public at large and, therefore, the first condition to invoke Section 92 of CPC that trust should be a public trust of religious character is lacking in the instant case. Thus, he submits that the trial court has erred in granting leave to institute the suit.
10. He further submits that the trust deed provides that if there exists any dispute of maintenance of trust, the same may be referred to the five Panch. Accordingly, he contends that since a forum for redressal of dispute is provided in the trust deed, therefore, proper remedy to the respondents is to approach five Panch of Panchayats who is entrusted with the job of resolving disputes. Accordingly, he submits that suit under Section 92 of CPC is not maintainable. Lastly, he submits that the respondents are stranger and they have no locus to file a suit. Accordingly, the suit is not maintainable at the behest of the respondents.
11. I have heard learned counsel for the applicants and perused the record.
12. To proceed with the aforesaid contentions of learned counsel for the applicants, it would be necessary to have a glance at Section 92 (1) of CPC which reads as under:-
"92. Public Charities.-- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 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 inquires;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require."
13. Reading of Section 92 of CPC suggests that three conditions must exist for the maintainability of the suit; (1) There shall be a trust created for the public purpose of charitable or religious nature. (2) There is a breach of trust or direction of the court is deemed necessary for better administration of the trust. (3) The suit must contain the relief as provided under Section 92 (1) of CPC. Thus, to maintain a Suit under Section 92 of C.P.C, the aforesaid three conditions must exist, and if any of the aforesaid conditions is lacking or missing, the suit under Section 92 (1) would fail.
14. At this point, it would be apt to refer to the judgment of the Apex Court in the case of Deoki Nandan Vs. Murlidhar 1957 AIR (SC) 133 which has been relied upon by learned counsel for the applicants which define the distinction between a private trust and a public trust. Relevant paragraphs 5 and 7 of the judgment is reproduced as under:-
"5. It will be convenient first to consider the principles of law applicable to a determination of the question whether an endowment is public or private, and then to examine, in the light of those principles, the facts found or established. The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, Fifteenth Edition, pp. 15-16:
By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained.....'' Vide also the observations of Mitter J. in Haji Mahammad Nabi Shirazi v. Province of Bengal I. L. R. [1942] 1 Cal. 211 at pp. 227, 228: (AIR 1942 Cal. 343 at p.349) (B). Applying this principle, a religious endowment must be held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof.
7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers."
15. In the light of the principle enunciated by the Apex Court in Deoki Nandan (supra), this Court will analyze in the latter part of the judgment as to whether the finding of the trial court that the trust is a public trust is based upon the sound principle of law.
16. Now, it would be apposite to consider few judgments on the scope and purpose of grant of leave under Section 92 of CPC for instituting the suit, and whether the order granting of leave of the court to institute the suit under Section 92 of C.P.C would prejudice the rights of parties in the disposal of the suit.
17. This Court in the case of Ambrish Kumar Singh Versus Raja Abhushan Bran Bramhshah and others 1989 ALL 194 has held that while granting leave, the court does not decide the rights of the parties. Paragraphs 10 and 11 of the said judgment is extracted herein-below:-
"10...
While granting leave the court does not decide the rights of the parties. No right is adjudicated at this stage. The Court has merely to see whether there is a prima facie case for granting leave to file a suit. This order does not in any way affect the final decision which will be given on merit after the parties have led evidence in the suit.
11. So far as S. 92 C.P.C. is concerned it does not contemplate of giving any notice to the proposed defendants before granting leave. However, it has been held by the decision of this Court reported in 1987 All LJ 369, Mahanth Gurmukh Das v. Bhupal Singh, that the proceedings under S. 92, C.P.C. are judicial proceedings and the order of the District Judge is a judicial order. The Court should pass the order after hearing the defendants. It is not necessary to pass a detailed order. It is sufficient if the order indicates that it is the result of the due application of mind of the Judge. May be that he has not written very elaborate order which in my opinion it was actually not needed.
There is application of mind. Moreover, I see no jurisdictional error or illegal exercise of jurisdiction."
18. Similar view has been reiterated by this Court in the case of Mahant Sita Ram Das and another Vs. Ram Chandra Arora and others 1988 ALL LJ 259. Relevant paragraphs of the said judgment are extracted herein-below:-
"3. .... There can not be any doubt that when the court grants leave the same is in a judicial proceeding and the order passed by the District Judge is a judicial order. However, while granting leave the rights of the parties are not adjudicated and at this stage the court has merely to see whether there is a prima facie case that should be allowed to be filed. By giving consent the court does not affect the rights of the parties against whom the suit is filed as after granting the leave the parties will have an opportunity to present their case before the Court in which the suit is filed. As at the time of granting the leave the District Judge will have to see only a prima facie case the conclusion of the District Judge will in no way affect or influence the final decision which will be given in the suit after the parties had led evidence. So far as S. 92 CPC is concerned, it does not contemplate of giving any notice to the proposed defendants before granting the leave. In case the intention of the Legislature was that a notice was to be issued to the proposed defendants before granting leave there is no reason as to why the Legislature would not have specifically made a provision in this respect. The Legislature in its wisdom has thought it fit to confer the aforesaid power in this behalf on a Judicial Officer of the status of a District Judge, whose mind is well trained to act judicially. It has further to be seen whether the principles of natural justice would require of giving of a notice to the proposed defendants. The notice would have been necessary if the order adversely affects the rights of the proposed defendants. By merely giving the permission the District Judge does not affect the rights of the proposed defendants against whom the suit is allowed to be filed and thus even the principles of natural justice would not be attracted so as to make it necessary for the District Judge to issue notice to the proposed defendants and to hear them. It can not thus be said that the proposed defendants as a matter of right can claim either issuing of notice or a hearing before the District Judge grants leave for filing the suit under Sec.92 CPC . However, in a given case the District Judge in order to satisfy himself may in his discretion like to hear the proposed defendants before granting the leave. The issuing of the notice by the District Judge was thus not necessary and the argument raised by the learned Counsel for the applicant has no force.
4. It has now to be seen as to whether the District Judge while granting leave under Section 92 CPC has to pass a detailed speaking order. It is true that the order granting leave by the District Judge is a judicial order and should indicate that the District Judge applied his mind before granting leave. However, as rights of the parties are not affected, it is not necessary to pass detailed order but it would suffice if the order indicates that it has been passed by the District Judge after due application of mind."
19. The Apex Court in the case of Swami Paramatmanand Saraswati and another Versus Ramji Tripathi and another AIR 1974 SC 2141 has held that the only allegation in the plaint is to be seen at the first instance to determine whether the suit falls within the ambit of Section 92 of CPC. Paragraph 14 of the said judgment is extracted herein-below:-
"14. It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance, to see whether the suit falls within the ambit of Section 92 [see Association of R.D.B. Bagga Singh v. Gurnam Singh, AIR 1972 Raj 263; Solhan Singh v. Achhar Singh, AIR 1968 Punj and Har 463 and Radha Krishna v. Lachmi Narain AIR 1948 Audh 203]. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit pur- porting to be brought under Section 92 must be dismissed. This was one of the grounds relied on by the High Court for holding that the suit was not maintainable under Section 92."
20. In the context of the scope of the grant of leave to sue under Section 92 of CPC, it would be worth noticing the judgment of the Apex Court in the case of R.M. Narayana Chettiar and another Vs. N. Lakshmanan Chettiar and others AIR 1991 SC 221. The Apex Court has held that if no notice is issued to the defendant-applicant granting leave under Section 92 of CPC that would not render the suit invalid. It further held that though an order refusing to leave is appealable under Section 104(ffa) of CPC, it does not connote that it is obligatory upon the court to issue notices to the proposed defendant before granting leave. The Apex Court further opined that it is the plaintiff who is prejudiced by refusing to grant leave and not the defendant who shall suffer any prejudice by refusal to grant such leave. While laying down the aforesaid proposition of law, the Apex Court has also noticed the judgment of this court in the case of Ambrish Kumar Singh (Supra) wherein this court has held that the court does not adjudicate rights of the parties while granting leave to sue under Section 92 of the C.P.C. Paragraphs 16 17, and 18 of the said judgment are extracted herein-below:-
"16. As far as the decisions of this Court which have been pointed out to us are concerned, the question as to whether before granting leave to institute a suit under S. 92 of the Code, the Court is required to give an opportunity of being heard to the proposed defendants did not arise for determination at all in those cases. As far as the High Courts are concerned, they have taken different views on this question. The legislative history of S. 92 of the Code indicates that one of the objects which led to the enactment of the said section was to enable two or more persons interested in any trust created for a public purpose of a charitable or religious nature should be enabled to file a suit for the reliefs set out in the said section without having to join all the beneficiaries since it would be highly inconvenient and impracticable for all the beneficiaries to join in the suit; hence any two or more of them were given the right to institute a suit for the reliefs mentioned in the said S. 92 of the Code. However, it was considered desirable to prevent a public trust from being harassed or put to legal expenses by reckless or frivolous suits being brought against the trustees and hence, a provision was made for leave of the court having to be obtained before the suit is instituted.
17. A plain reading of S. 92 of the Code indicates that leave of the court is a pre-condition or a condition precedent for the institution of a suit against a public trust for the reliefs set out in the said section; unless all the beneficiaries join in instituting the suit, if such a suit is instituted without leave, it would not be maintainable at all. Having in mind, the objectives underlying S. 92 and the language thereof, it appears to us that, as a rule caution, the court should normally, unless it is impracticable or inconvenient to do so, give a notice to the proposed defendants before granting leave under S. 92 to institute a suit. The defendants could bring to the notice of the court for instance that the allegations made in the plaint are frivolous or reckless. Apart from this, they could, in a given case, point out that the persons who are applying for leave under S. 92 are doing so merely with a view to harass the trust or have such antecedents that it would be undesirable to grant leave to such persons. The desirability of such notice being given to the defendants, however, cannot be regarded as a statutory requirement to be complied with before leave under S. 92 can be granted as that would lead to unnecessary delay and, in a given case, cause considerable loss to the public trust. Such a construction of the provisions of S. 92 of the Code would render it difficult for the beneficiaries of a public trust to obtain urgent interim orders from the court even though the circumstances might warrant such relief being granted. Keeping in mind these considerations, in our opinion, although, as a rule of caution, court should normally give notice to the defendants before granting leave under the said section to institute a suit, the court' is not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to the defendants, the suit would not thereby be rendered bad in law or non-maintainable. The grant of leave cannot be regarded as defeating or even seriously prejudicing any right of the proposed defendants because it is always open to them to file an application for revocation of the leave which can be considered on merits and according to law.
18. We may mention that although clause (ffa) of S. 104(1) of the Code provides that an appeal shall lie against the refusal of grant of leave, that cannot lead to the conclusion that it is obligatory on the part of the court to give notice to the proposed defendants before granting leave because an appeal lies only against the refusal of leave and not against the grant of leave. Before refusing leave the proposed plaintiffs are bound to be heard and it is the plaintiffs and not the defendants who could be prejudiced by refusal to grant such leave."
21. In the case of B.S. Adityan and others Versus B. Ramachandran Adityan and others (2004) 9 SCC 720, the Apex Court in paragraph 5 of the judgment noted as under:-
"5. In the normal course if an appeal is filed against an order granting permission to a party to file a suit as falling under Section 92 CPC, we do not normally interfere with an order made by the High Court nor do we think of entertaining a proceeding of this nature under Article 136 of the Constitution because the order made thereunder will not determine the rights of the parties, but only enable a party to initiate a proceeding."
22. In a recent judgment, in the case of Ashok Kumar Gupta and another Versus Sitalaxmi Sahuwala Medical Trust and others (2020) 4 SCC 321, the Apex Court has set aside the order of the High Court refusing to grant leave to the suit. The Apex Court after noticing a long line judgment, in paragraph 12 held the three conditions must exist to invoke jurisdiction under Section 92 of the CPC. Paragraph 12 of the judgment is extracted herein-below:-
"12. Three conditions are therefore, required to be satisfied in order to invoke Section 92 of the Code and to maintain an action under said Section, namely, that:
(i) the Trust in question is created for public purposes of a charitable or religious nature;
(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."
23. In the aforesaid case, the Apex Court after noticing several pronouncements in respect of the scope of Section 92 of C.P.C. found that the suit of appellant meets all the three requirements for invoking Section 92 of CPC, and accordingly, it set aside the order of the High Court and restored the order of the trial court granting leave to sue.
24. Now, in the light of principles enunciated by this Court as well as the Apex Court regarding grant of leave to suit, it can be concluded that three conditions must exist as noted by the Apex Court in paragraph 12 of the judgment in the case of Ashok Kumar Gupta (supra) to invoke Section 92 of CPC. If any of the conditions noted in paragraph 12 in the case of Ashok Kumar Gupta (supra) is lacking, Section 92 of CPC cannot be invoked.
25. It is also settled in law that non-issuance of notice to the proposed defendant before granting leave to suit under Section 92 CPC will not render the suit invalid since an order granting leave to suit does not prejudice the rights of the proposed defendant in the suit. The proposed defendant has the opportunity to lead evidence and establish by filing evidence in the trial that the suit is based upon false and vexatious allegations.
26. Now, this Court proceeds to analyze the legality of the order passed by the trial court granting leave to sue in the light of principles laid down by the Apex Court and this court regarding grant of leave under Section 92 of C.P.C.
27. At this point, It is pertinent to mention that the trial court in detail has considered each condition of the trust deed as noticed in the earlier part of the judgment to conclude that the trust is a public trust. Learned counsel for the applicants could not demonstrate that the finding of the trial court in concluding that trust is a public trust is perverse.
28. The suit under Section 92 of CPC is of a special nature that presupposes the existence of public trust of a religious or charitable character. At this juncture, it would be relevant to refer to conditions no. (1), (3), (5) and (6) of the Trust Deed to gather the intention of the Founder of the trust, the plain reading of these conditions unequivocally discloses the intention of the Founder of the trust that the trust has been created for the benefit of the public. The trust deed stipulates that the proceeds of property of the trust must be utilized for maintenance of the temple and the expenses to be incurred for Bhog and Pooja of the Deity. The income of the trust is to be utilized for discharging Government revenue. The trust deed prohibits the trustees from transferring any property of the trust and further not to use the trust property or its proceeds for their benefit. The trust deed further provides that if any trustee starts any venture not mentioned in the trust deed, the account shall be audited and maintained by the five reputable persons of the Panchayat of the Kasba concerning the said venture.
29. Reading of the trust deed does not indicate that only the family members of the Founder of trust have the right to worship the idol, rather the conditions stipulated in the trust deed in terms of which trust is to be managed discloses that none of the stipulations in the trust deed ascribes any benefit to the members of the family of the Founder of the trust. Hence, it can be inferred from the stipulations in the trust deed that worship of the idol is open to the public at large unless proved otherwise by the applicant by leading evidence during the trial.
30. In this view of the fact, this Court finds that the prima facie opinion of the trial court that trust is a public religious trust is with due application of mind and based upon the appreciation of stipulations in the Trust Deed.
31. The applicants will get an opportunity to disprove the contention of respondents during the trial that trust is not a public or charitable trust by leading evidence. At this stage, the opinion of the trial court on the plain reading of the plaint and stipulations of Trust deed that the Trust is a public trust does not prejudice the rights of the applicants in any manner.
32. Now, coming to the second condition for invoking Section 92 of CPC that there must be a breach of trust or trust is not being managed properly is present in the instant case. The allegations in the plaint extracted above, clearly disclose that the trust property is not being managed properly and by following the conditions of the Trust Deed. The averments in the plaint extracted above clearly disclose that proceeds of trust are being utilized by the applicants for their personal use which is prohibited in the trust deed; that proceeds of trust property are not utilized for repair of temple and idol and the temple is in a dilapidated condition. In this view of the fact, this Court finds that the second condition for invoking Section 92 of CPC is also present. Relief as claimed in the plaint which has been quoted above also discloses that same falls within the relief provided under Section 92 of CPC. Accordingly, this court believes that all the conditions which must exist to invoke Section 92 of the C.P.C. are present in the present case.
33. Now coming to the judgments relied upon by learned counsel for the applicants, this Court is of the opinion that said judgments do not help the applicant at the stage of grant of leave to suit under Section 92 of CPC. In the case of Dhirendra Singh and others Vs. Dhanai and others 1983 AIR (All) 2016, this Court dismissed the first appeal of the plaintiff against the judgment and order passed by District Judge, Faizabad dismissing the suit under Section 92 of CPC on the contest. In this case, the suit was contested by the parties, and issues were framed and after the parties led evidence, the trial court found that the plaintiff has failed to prove that trust is religious trust, and accordingly, it dismissed the suit. The said judgment is not applicable in the facts of the present case, as the suit has been dismissed by the trial court on the contest by the parties which judgment was affirmed by the High Court in Appeal.
34. In the case of Sri Satnarayan Ji Maharaj Virajman Mandir Sat Narayan Dharamshala and others Versus Rajendra Prasad Aggarwal and others AIR 1997 ALL 413, the trial court refused to grant leave to suit on the ground that trust deed reveals that temple, Dharamshala, and property in question belong to the defendants and the trust properties were partitioned between them. Paragraphs 5, 6, and 7 of the judgment are reproduced herein-below:
"5. The appellant contended that the nature of the trust, whether it was for public purposes or not, would be determined from the fact as to who would be the beneficiaries of the trust. It was contended that materials were there before the court below to infer that the Hindu public in general were allowed to stay in the dharamshala and to offer puja in the temple and to take part in bhajan and kirtans in the temple and, as such, the public in general were beneficiaries of the trust. The respondents contended that to allow the public in general to offer puja or to stay in a dharamshala may not convert the same into a trust for public purposes when the ownership always remained with Sahu Chhajmal Das and, thereafter, with his sons and these sons had partitioned the property amongst themselves. Had it been the trust, it was argued, no question could have arisen for partition of the property between certain private individuals. In this connection, reference was made to the papers filed with the counter affidavit which were not denied. It was only stated regarding these papers that the properties were not partitioned, only the management thereof was partitioned.
6. Case-laws were also cited by the parties in this connection. The Supreme Court made a distinction between a private and public trust, in the case of Devaki Nandan v. Murlidhar, as reported in AIR 1957 SC 133: (1957 All LJ 416). It was observed herein that the distinction between a private and a public trust was that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are the persons who are ascertained for are capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must be held, therefore, to be a private or a public according to the beneficiaries if they are specific person or general public or a section thereof. It was further observed that under the Hindu law an idol is a juristic person capable of holding property and the properties endowed for the institution vest in it. But it does not follow from these that it is to be recorded as the beneficial owner of the endowment. It is only in ideal sense that the idol is the owner of the endowed properties and it cannot have any beneficial interest in the endowment. When once it was not disputed that the true beneficiaries of religious endowment are not the idols but the worshippers and that the purpose of the endowment is the maintenance of that worship for the benefit of worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specific persons are to have the right of worship of the shrine or the general public or any specific portion thereof.
7. In the instant case, however, although an idol was installed a temple raised, a dharamshala was constructed, there is nothing on record to indicate that it was dedicated either to any deity or for any particular segment of the society. The temple, the dharamshala and the property in question always belonged to Sahu Chhajmal Das and subsequently to his heirs by dint of a will and subsequent partition between them."
35. Reading of aforesaid paragraphs reveals that trust was a private trust as certain properties of trust were partitioned between certain individuals and, therefore, this Court has concluded that had it been a public trust, there would not have been any question of partition of the property of the trust between private individuals. Thus, the judgment of this Court in the case of Sri Satnarayan Ji Maharaj Virajman Mandir Sat Narayan Dharamshala (supra) is not applicable in the facts of the present case.
36. The judgment of this Court in the case of Karunanadhi and others Vs. Gyan Prakash and others 2014 (5) ADJ 467 is also not applicable in the facts of the present case since in the said case it was admitted by the plaintiff in his affidavit that trust is a private trust and because of admission of the plaintiff regarding nature of trust, this Court held that as trust is a private trust, therefore, Section 92 of CPC cannot be invoked. Thus, the said judgment also does not come in aid of the applicants
37. As far the second submission of learned counsel for the applicant that trust deed provides that if there is any dispute in respect to trust, same may be referred to fiver Panchs of Panchayat, the said contention is also misconceived for two reasons; firstly the dispute in the instant case is not concerning dispute among the trustee falling within the ambit of truest deed rather moot question in the instant case is about the management of trust since as per allegation in the plaint, the trust is being mismanaged by the applicant. Secondly, even if for the sake of argument, the contention of learned counsel for the applicant is accepted, the stipulation in the trust deed that any dispute be referred to the Panch will not override statutory provision since Section 92 has been incorporated in C.P.C. with an object that the trust which is charitable or public religious trust should be managed as per the wish of the Founder of the trust and in accordance with the provisions of the trust deed. Accordingly, this Court is not inclined to accept the aforesaid contention of learned counsel for the applicant.
38. So far as the last contention of learned counsel for the applicant that the respondent has no locus to file a suit, it is relevant to point out that the respondent in the application under Section 92 CPC specifically averred that they belong to the family of Founder of the trust and used to visit the temple for darshan and pooja of the deity. Thus, the last contention of learned counsel for the applicant on the point of locus is also not sustainable keeping in view the fact that the applicant has ample opportunity to lead evidence to disprove the statement of the respondent that they belong to the family of the Founder of the trust.
39. For the reasons given above, this Court finds that no illegality or a jurisdictional error has been committed by the trial court in granting leave to suit to the respondents.
40. Thus, for the reasons given above, the revision lacks merit and is dismissed without any order as to cost.
Order Date :- 26.8.2021 SS