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  

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1917 OF 2020 (Arising out of Special Leave Petition (Civil)No.21306 of 2019)

ASHOK KUMAR GUPTA & ANR. …Appellants

Versus

M/S SITALAXMI SAHUWALA  MEDICAL TRUST AND OTHERS …Respondents

J U D G M E N T

Uday Umesh Lalit, J.

 1. Leave granted.  

2. This  appeal  challenges  the  final  judgment  and  order  dated

30.04.2019 passed by the High Court of Judicature at Madras in C.R.P.

(PD) No.2708 of 2013.   

3. Original Suit No.566 of 2012 was filed by the present appellants in

the Court of the District Judge, Coimbatore stating basic facts as under:-

“III. The  2nd plaintiff  is  the  wife  of  the  1st

plaintiff.   The  1st plaintiff  is  the  elder  son  of defendants 2 & 3.  The 4th defendant is the younger

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son of defendants 2 & 3 and the 5th defendant is his wife.  The 6th defendant is the daughter of defendants 4 & 5.  The 7th defendant is son in law of the family and he has married the sister of 1st plaintiff and the 4th

defendant.   The  plaintiffs  are  Trustees  of  the  1st

defendant Trust and are persons having interest in the affairs of the Trust and are filing the present suit for framing  a  scheme  for  the  administration  of  the  1st

defendant Trust, which is a Public Charitable Trust.

IV) The  2nd defendant  settled  down  in Coimbatore in 1959 and he was managing the firm called M/s India Roller Flour Mills.  The 1st plaintiff was  academically  a  good  student  and  he  secured admission  on  merit  in  medical  college  and  he graduated  from  Coimbatore  Medical  College completing MBBS.  He pursued his studies further in post-graduation and completed his M.S. from Madras Medical  College,  Chennai,  and is  thus  a   qualified surgeon  who  has  graduated  from  the  Madras University.

V) Taking note of his future and his carrier as a  Doctor,  the  2nd defendant  decided  to  construct  a hospital, so as to enable the 1st plaintiff to carry on his profession.  However, the hospital was envisaged as a charitable hospital.  The 2nd defendant as author of the trust established the 1st defendant Trust, M/s Sitalaxmi Sahuwala Medical Trust, under registered Trust Deed dated  09.04.1980.   A  copy  of  Deed  of  Trust  is produced  herewith  and  the  original  is  with  the  2nd

defendant as also the rest of the documents.

VI) The  objects  of  the  Trust  are  set  out  in Clause I which briefly are to establish, maintain and render  financial  assistance  and  donations  by establishing  and  assisting  running  of  a  hospitals, surgical  homes;  health  trainings,  nursing  homes, maternity  homes  and  dispensaries  and  to  equip  the hospitals and provide accessories and instruments etc.

VII) The plaintiff respectfully states that the 1st defendant Trust was established with the aim and  object  of  providing  medical  aid  to  the  needy

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citizens.   This  was contemplated taking note of the fact  that  the  1st plaintiff  who  became  a  qualified medical  practitioner  would look after  the  institution and  administer  the  hospital  where  a  part  of  the hospital can be run for charity and the 1st plaintiff can have  his  consultations  and  in  patients  admitted  to serve the people in society.

VIII) It  is  significant  that  the  four  trustees appointed  under  the  Deed  of  Trust  are  both  the plaintiffs and defendants 2 & 3 and they have been appointed for life.  The 2nd defendant is the Managing Trustee and the 1st plaintiff was appointed as the Joint Managing Trustee, vide Clause 10.

IX)  There  was  an  amendment  to  the  Trust Deed  dated  09.04.1980  by  another  deed  dated 23.03.1981.  In addition to the objects, further objects for  providing  free  education  and  conducting orphanages and help poor people perform marriages were introduced to the objects.  But nothing of these additional charities were ever performed.   

X) By another deed dated 15.03.1985, further objects were introduced to the Deed of Trust which have no relevance to the original objects.  There was also an amendment to the Trust Deed by a registered deed  dated  24.11.1986  providing  for  borrowing powers.

XI) The  Trust  purchased  land  measuring  33 Cents  in  Cowly Brown Road by a  sale  deed dated 08.04.1985 and  a hospital was constructed and it was established by the 1st defendant trust in 1987-88.  The 1st plaintiff  was  looking after  administration  of  this hospital till the year 2003-04.  The subsequent turn of events during the past one decade are narrated herein below……..”.    

4. The  events  after  2003-04  were  then  adverted  to,  and  it  was

elaborated that the 4th defendant – brother of appellant No.1 who did not

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have any medical qualification or any expertise to run the hospital and

manage the Trust had been in control of the Trust and the objects of the

Trust were not getting fulfilled; and that the appellants were sought to be

removed from the board of trustees.  Finally, it was stated:-

“XXI. The plaintiffs  submit that  time has come for this Honorable Court to interfere with the affairs of  the  1st defendant  Trust  and  to  frame  a  proper scheme  for  administration  of  the  Trust  through competent men,  so that the objects of the Trust  are implemented.   The  defendants  are  converting  the public charitable trust into a private family trust with rubber stamp trustees so as to enable them to make a living out of the trust properties and income from the Trust.   The  defendants  are  guilty  of  ignoring  the objects  of  the  Trust  and  in  misappropriating  the income earned by the  Trust  by  suppressing  its  real income  by  converting  the  hospital  into  a  business venture.   A scheme  requires  to  be  framed  for  the following reasons:

1. The  administration  of  the  Trust  should  be  in proper  hands  and  the  hospital  should  be administered by competent qualified Doctors.

2. No charity is performed by the 1st defendant Trust and records are created and fabricated for the said purpose for the past 5 years.  No free medical aid is provided and allowed to be provided.  Only the 1st plaintiff gives free consultation to patients.

3. No regular meeting of the Trust are conducted and no procedures are followed for proper conduct of meetings.  No resolutions are passed and minutes are not recorded.

4. The  real  income  derived  by  the  Trust  is  not accounted and this is siphoned off for the personal use by Defendants 2 to 5.  Cash collected is not

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deposited immediately  on  the  following day but used by the 4th defendant.

5. Trustees are appointed and removed according to the whims of defendants 2 & 4 and no democratic system is followed.

6. Complaints are frequently emerging from Doctors and Patients  that  the  4th defendant  is  demanding and  receiving  kickback  of  various  amounts involved and the 1st plaintiff has been informed to watch out the activities of the 4th defendant and to direct  him  to  mend  his  ways,  to  preserve  the reputation of hospital.

7. The  defendants  do  not  come  and  supervise  the hospital on a day to day basis.  The 1st plaintiff is prevented from taking part  in  the  administration and management of the hospital.  Proper accounts are not maintained.   

8. The defendants are thus guilty of mismanagement, misappropriation  and  they  are  guilty  of committing breach of Trust and they are not fit to hold office.  The 8th defendant is the Banker for the  1st defendant  Trust  and  the  1st defendant  is operating its accounts with the 8th defendant.  The 8th defendant is thus a proper party as the operation of account and withdrawals can be.”

5. In the circumstances, the appellants prayed for following reliefs in

said Suit:-

“a) By  framing  a  proper  scheme  of administration  for  1st Defendant  Trust  namely M/s  Sitalaxmi  Sahuwala  Medical  Trust  by removing the  defendants  2  to  6 and appointing fresh trustees including the 1st plaintiff and other trustees from the medical profession and from the public for proper and effective administration of the 1st defendant Trust by vesting the properties

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of the 1st defendant trust with the new trustees to be appointed.

b) Declaring that  the appointment of the 6th

defendant  as trustee  is  void and illegal  and for consequential permanent injunction to restrain the 6th defendant from functioning as a Trustee of the 1st defendant trust.   

c) For declaration that the procedure adopted to remove the plaintiffs from the Trust Board is void, illegal and mala fide and for consequential permanent injunction restraining the defendants 2 to 6 from removing the Plaintiffs from the Trust Board or reconstructing the Trust Board without leave of the Court.

d) For  permanent  injunction  restraining Defendants from appointing the 7th defendant as a Trustee  and  to  restrain  the  7th defendant  from acting as Trustees of the 1st defendant Trust.

e) Directing the accounts of the 1st defendant Trust to be audited by an independent Chartered Accountant and to surcharge defendants 2 & 4 to pay up to the 1st defendant Trust any amount that may be found due from them to the Trust.

f) Appoint a Receiver to take charge of the assets of the 1st Defendant Trust and administer the  same  and  entrust  them  to  the  Trustees appointed as per Scheme.  

g) Award cost of the suit to the plaintiff.

h)  Grant such other and further  relieves as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”

6. Along with the aforesaid Suit, IA No.1416 of 2012 was filed

by the appellants seeking leave to institute the Suit under Section 92

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of the Code of Civil Procedure, 1908 (‘the Code’, for short).  By order

dated 31.07.2012, the District Judge, Coimbatore granted leave under

Section 92 of the Code.  Soon thereafter Respondent No.2 herein filed

IA No.1435  of  2012  seeking  revocation  of  leave  granted  to  the

appellants vide aforesaid order dated 31.07.2012.  It was stated, inter

alia,  that  neither  the  application  nor  an  affidavit  in  support  of  the

application disclosed any proper reason for grant of such leave.  The

matter was contested.  The District Court vide order dated 27.11.2012

held that the appellants had made out a prima facie case and there was

no necessity to revoke the leave already granted.  The District Court,

thus, dismissed IA No.1435 of 2012 holding inter alia:

“18. In Para 18 of the plaint there is an allegation that the 4 defendant runs the hospital of the trust to earn his  livelihood and siphoning off  the  income for  his personal use. There was allegation to the effect that no meeting of trustees has been held for the past many years.

The defendants are not competent and qualified to administer the hospital. In para 9 it was alleged that the 6th defendant was inducted as a trustee in violation of  the  provisions  contained  in  the  trust  deed.  No annual meeting was held for passing accounts and for appointment of auditor.

…   … …

20. … In the case at hand, admittedly the 1st plaintiff is a doctor. His qualification is Master of Surgery. 2nd

plaintiff is his wife. They are first trustees of the trust. It can be safely held that they are having interest in the trust. Therefore it cannot be said that the suit has

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been  filed  by  irresponsible  persons.  Admittedly  the trust  was  created  for  public  purposes.  It  has  been brought to the notice of the Court that the objects of the  original  trust  have  been  amended  without  any authority. The validity of the amendment can be gone into after trial. Likewise the amendment with regard to appointment of trustees can also be decided after conclusion  of  trial.  In  “V.Rajasekaran  vs.  M. Rajendran”1 it has been held that:

“Unless  a  strong  case  is  made  out, ordinarily the Court should grant leave so that  the  question  can  be  considered  in depth after evidence is recorded.”

… … …

21. It  is well  settled that public charity is perpetual and  the  Court  is  the  guardian  of  a  charity.  Having regard  to  the  whole  facts  and circumstances  of  the case, I hold that the plaintiffs have made out a prima- facie case. Therefore, the leave granted by this Court to institute the suit cannot be revoked. The point is answered accordingly.”

7. The  respondents  challenged  the  aforesaid  decision  of  the

District Court by filing Civil Revision being C.R.P. (PD) No.2708 of

2013 before the High Court.  Soon thereafter another suit being OS

No.1415 of 2013 was filed by the appellants along with their two sons

seeking a decree for declaration that the amendment made under the

Supplemental Deed of Trust dated 10.08.2012 be declared void and

illegal.   We are  not  presently concerned with  said  OS No.1415 of

2013.

1 (2007) I MLJ 683

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8. The aforesaid Civil Revision was allowed by the High Court

vide  its  judgment  and  order  dated  30.04.2019  accepting  the

submission that  the  suit  as  framed was essentially  to  vindicate  the

private rights of the appellants and that the leave under Section 92 of

the Code could not have been granted. It was observed by the High

Court as under:

“22. From the above judgments, it is well settled that the  main  purpose of  provision  under  Section  92  of CPC  is  to  give  a  protection  to  public  trust  or charitable or religious nature, from being subjected to harassment by suits being filed against them and the Courts  also  to  see  that  there  is  a  prima  facie  case either  breach  of  trust  or  of  necessity  of  obtaining direction from the Court on  the basis of allegation made in the plaint. If the allegation of breach of trust is not substantiated and the very foundation of the suit is based on the private rights, leave cannot be granted under Section 92 CPC. Similarly, Court can also go beyond the relief and have regard to the capacity in which the plaintiff has sued on the purpose which the suit  was  brought.   Mere  colour  of  legitimacy  was sought  to  be  given by projecting as  if  the  suit  was vindicating the public rights, leave cannot be granted. From  the  judgments  of  the  Apex  Court  only  the allegation in the plaint that should be looked into at the first instance whether the suit fall within the ambit of Section 92.

23. In the light of the above settled position now it has to be seen whether the suit has been filed to vindicate the public right or private right.  No doubt the Trust is charitable trust. Only the allegations in the plaint to be looked  into  find  out  as  to  whether  the  suit  is  for vindicating  the  private  rights  or  public  right.   On entire perusal of the plaint para 5 of the plaint, it is the

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contention of the plaintiff that the 2nd defendant has decided to construct a hospital so as to enable the 1st plaintiff  to  carry  on  his  profession.  However,  the hospital was envisaged as a Charitable hospital.   In para 7 of the plaint it is the contention of the plaintiff that the 1st Plaintiff can have his consultations and in patients admitted to serve the people in society.  The plaintiff  was looking after the  administration of  the hospital till the year 2003 and 2004.  In para 11 and 12 it is pleaded how the 4th defendant was inducted into the Trust and in para 13 it is pleaded as if 4th defendant slowly started to usurp powers and become a  Joint  Managing  Trustee,  though  the  plaintiff  was looking after the administration of the hospital till the year 2003-2004. It is further alleged in para 13 that the 4th defendant has not allowed the defendant 2 and 3 to take independent decision. In para 14 it is stated that the 4th defendant is receiving part of the rent by cash and using it for his expenses. In para 15 of the plaint  it  is  the  contention  of  the  plaintiff  that  4th

defendant  has  been  looking  after  the  affairs  of  the hospital which was intended for medical practice of the first plaintiff.  In fact, this allegation is contrary to earlier pleadings that he was managing the hospital in 2003-2004.  The entire pleadings clearly indicate that the  defendants  have  inducted  the  3rd defendant’s daughter  and  wife  and  there  was  also  an  agenda circulated by communication dated 23.07.2012 for the meeting proposed to be held on 09.08.2012.”

9. In this appeal challenging the view taken by the High Court,

we heard Mr.  K.V.  Vishwanathan,  learned Senior  Advocate  for  the

appellants and Mr. Guru Krishna Kumar, learned Senior Advocate for

the respondents.

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10. The  basic  issue  involved  in  the  matter  is  whether  the

appellants were rightly granted leave under Section 92 of the Code by

the Trial Court.  We may at the outset quote relevant provisions of

Section 92, which are to the following effect:-

“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 trustees; (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

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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 respect of any such trust as is therein  referred  to  except  in  conformity  with  the provisions of that sub-section.   

(3) ……….”

11. While considering the scope of Section 92 (1),  as it existed

then,  a  Constitution  Bench  of  this  Court  observed  in  Chairman

Madappa  vs.  M.N. Mahanthadevaru and Others2,  as under:-

“… Section  92(1)  provides  for  two  class  of  cases, namely, (i) where there is a breach of trust in a trust created for public purposes of a charitable or religious nature,  and  (ii)  where  the  direction  of  the  court  is deemed necessary for the administration of any such trust.  The main purpose of  Section 92(1) is  to give protection to public trusts of a charitable or religious nature  from being subjected  to  harassment  by  suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate General, or two or more persons having an interest in the trust with the consent in writing of the Advocate  General.  The object  clearly is  that  before the Advocate General files a suit or gives his consent for  filing a suit  under  Section 92,  he would satisfy himself that there is a prima facie case either of the each  of  trust  or  of  the  necessity  for  obtaining directions of the court. The reliefs to be sought in a suit under Section 92(1) are indicated in that section and include removal of any trustee, appointment of a new  trustee,  vesting  of  any  property  in  a  trustee, directing a removed trustee or person who has ceased to be a trustee to deliver possession of trust property in  his  possession  to  the  person  entitled  to  the possession  of  such property,  directing  accounts  and enquiries,  declaring  what  proportion  of  the  trust-

2 (1966) 2 SCR 151

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property or of the interest therein shall be allocated to any particular object of the trust, authorisation of the whole or any part of the trust-property to be let, sold, mortgaged or exchanged, or settlement of a scheme. The nature of these reliefs will show that a suit under Section 92 may be filed when there is a breach of trust or  when  the  administration  of  the  trust  generally requires improvement. … …”

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

A) In  Bishwanath and anr.   vs.   Shri  Thakur Radhaballabhji  &

ors.3

“It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was 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  enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. … …”

B) In Sugra Bibi vs.  Hazi Kummu Mia4

“It  is  evident  that  this  section  has  no  application unless three conditions are fulfilled: (1) the suit must relate to a public charitable or religious trust, (2) the suit  must be founded on an allegation of  breach of trust  or  the  direction  of  the  Court  is  required  for administration of the trust, and (3) the reliefs claimed are those which are mentioned in the section.”

3 (1967) 2 SCR 618 4 (1969) 3 SCR 83

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13. 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.

14. In  the  instant  case,  it  is  admitted  that  the  concerned  Trust  is

created for public purposes of charitable nature. The matter on that front is

beyond any doubt.  As regards the second condition, paragraph 21 of the

plaint makes out a case that a public charitable trust was being run as a

private family trust; that the object of the Trust was being ignored; and

that there was necessity to frame a proper scheme for administration of

the Trust through competent persons.  The second condition also stands

satisfied.  

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Insofar as the third condition is concerned, the reliefs prayed for are

diverse  which  include  inter  alia framing  of  a  proper  scheme  of

administration,  for  removing  certain  trustees  and  appointment  of  fresh

trustees from medical profession and from public and for other ancillary

reliefs.  It is true that the reliefs prayed for include a relief where the first

plaintiff is also being sought to be included as one of the trustees along

with other trustees from medical profession and from public, for proper

and effective  administration  of  the  Trust.   A question,  therefore  arises

whether such relief along with other averments in the plaint would take

the matter out of the scope of the Section 92 of the Code or not.

15. In  Sugra Bibi4,  the Wakf was created substantially for a public

purpose and the reliefs prayed for in the suit inter alia, were i) for removal

of the defendant from the office of Mutwalli and for appointment of the

son of the plaintiff in his place and ii) for appointment of a receiver till

said son attained majority.  While considering the facts where the creation

of Wakf was substantially for a public purpose, this Court observed:-

“… … The proper test for holding whether the Wakf would  fall  within  the  purview of  Section  92,  Civil Procedure Code is to examine whether the Wakf has been  created  substantially  for  a  public  purpose. Applying  the  test  to  the  present  case,  we  are  of opinion that the Wakf created by Haji Elahi Bux on November  18,  1936  falls  within  the  purview  of Section 92, Civil Procedure Code. This view is borne

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out by the decision of the Calcutta High Court in  S. Massirat  Hossain v.  Hossain  Ahmad  Chowdhury5. That  case  related  to  a  Wakf  estate,  the  net  annual income of which was about Rs 1300 and out of this a sum of Rs 353 was set apart for public purposes of a charitable  or  religious  nature.  It  was  held  by  the learned Judges that the amount by no means was a trifling  or  a  disproportionate  provision in  favour  of the public and consequently the suit was maintainable under  Section  92  of  the  Civil  Procedure  Code. Reliance was placed by the High Court in support of its decision upon the pronouncement of the Judicial Committee  in  Vaidya  Nath  Aiyyar v.  Swaminatha Ayyar6 where the founder of the trust directed by his will  that  two-thirds  of  the  income  of  his  property would  go  to  his  wife  and  the  remaining  one-third would go first towards the discharge of certain debts and thereafter to establish a Chatram for the feeding of the poor. There was a further provision that after the wife’s death, two-thirds of the income given to her would  be  applied  to  charity  and  one-third  to  the members  of  the  family.  On  these  facts  the  Judicial Committee  agreed  with  the  findings  of  the  court below that the Chatram so established was a public trust.”

In the context of the relief prayed for, the submission that “the Suit

was brought not to vindicate or to establish a right of the public institution

i.e., the trust, but to remedy an infringement of an individual right or to

vindicate the private right of the appellant”, was considered as under:-

“… …The reliefs prayed for are: (  1  ) removal of the respondent  from  the  office  of  Mutwalli  and appointment of Soleman, appellant’s son, as Mutwalli in  his  place,  and  (  2  )  till  the  said  Soleman  attains majority  appointment  of  a  Receiver  for  the

5 1897 SCC OnLine Cal 42 : (1896-97) 1 CWN 345 6 (1923-24) 51 I.A. 282

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management of the Wakf estate. It is true that the facts that  a  suit  relates  to  public  trust  of  a  religious  or charitable  nature  and the  reliefs  claimed fall  within clauses  (a)  to  (h)  of  sub-section  (1)  of  Section  92 Civil Procedure Code would not by themselves attract the  operation of  the  section,  unless  the  suit  is  of  a representative character  instituted in the  interests  of the  public  and  not  merely  for  vindication  of  the individual or personal rights of the plaintiff. As was stated by Woodroffe, J. in Budreedas v. Choonilal7:

“It  is  obvious  that  the  Advocate-General, Collector or other public officer can and do sue only as representing the public, and if, instead  of  these  officers,  two  or  more persons having an interest in the trust sue with  their  consent,  they  sue  under  a warrant  to  represent  the  public  as  the objects  of  the  trust.  It  follows  from this, that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section.”

This principle was accepted as sound by a Full Bench of the Madras High Court in Appanna v.  Narasigna8. In  that  case,  a  suit  was instituted by a  trustee  of  a public religious trust against a co-trustee for accounts and the Full Bench decided that it did not come within Section  92  of  the  Civil  Procedure  Code,  the  claim being to enforce a purely personal right of the plaintiff as  a  trustee  against  his  co-trustees.  The  same view was  taken  by  the  Madras  High  Court  in  The Tirumalai-Tirupati  Devasthanams  Committee v. Udiayar  Krishnayya  Shanbhagal9.  In  this  case  the general trustees of a public temple filed a suit against the  trustees  for  the  recovery  of  moneys  which  the latter had collected on behalf of the former praying for a decree directing accounts and inquiries. It was

7 I.L.R. 33 Cal. 789 8 I.L.R. 45 Mad. 113 9 I.L.R. [1943] Mad. 619

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held  that  the  right  to  collect  moneys  was  entirely independent  of  Section  92  of  the  Civil  Procedure Code and no sanction of the Advocate-General  was necessary for the institution of  the suit.  Leach,  C.J. who delivered the judgment of the Court observed as follows:

“After  hearing  the  arguments  of  learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham  Chetty v.  Govinda  Chetty10. On the other hand we find ourselves in full agreement  with  the  opinion  of Varadachariar, J. that, in deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity  in  which  the  plaintiffs  are  suing and  to  the  purpose  for  which  the  suit  is brought. The judgment of the Privy Council in  Abdur  Rahim v.  Mahomed Barkat  Ali11

lends no support for the opinion expressed by  the  Full  Bench  in  Janki  Bai v. Thiruchitrambala Vinayakar12”.

Applying the principle laid down in these authorities, we  are  of  opinion  that  in  the  present  case  the  suit brought  by  the  appellant  must  be  treated  as  a  suit brought by her in a representative capacity on behalf of  all  the  beneficiaries  of  the  Wakf.  As  we  have already stated,  the Wakf created by Haji  Elahi Bux was a Wakf created for a public purpose of charitable or  religious  nature.  The  reliefs  claimed  by  the appellant in the suit are not reliefs for enforcing any private  rights  but  reliefs  for  the  removal  of  the defendant  as  trustee  and for  appointment  of  a  new trustee  in  his  place. The  reliefs  asked  for  by  the appellant  fall  within  clauses  (a)  and (b)  of  Section 92(1) of the Civil  Procedure Code and these reliefs claimed  by  the  appellant  indicate  that  the  suit  was brought by the appellant not in an individual capacity

10 I.L.R. 1938 Mad. 39 11 (1927) I.L.R. 55 Cal. 519 (P.C.) 12 (1935) I.L.R.  58 Mad. 988 (F.B.)

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but as representing all the beneficiaries of the Wakf estate. … …”

(emphasis added)

16. Thus, though the reliefs prayed for removal of the defendant from

the office of Mutwalli, for appointment of the son of the plaintiff and for

appointment of receiver, in Sugra Bibi4, this Court found that the suit was

brought by the plaintiff in representative capacity.    

In  the  present  matter,  the  appellant  No.1-first  plaintiff,  as  a

qualified medical professional, was associated with the Trust and what is

being complained is  that  the appellants  have been removed from the

board  of  trustees  and  none  of  the  present  trustees  are  from medical

profession.  It is in that context that the principal relief prays for framing

of a proper scheme of administration and for appointing trustees from

medical  profession  and  from  the  public  for  proper  and  effective

administration of the Trust.  The expression “including the first plaintiff”

has to be understood in the context that the first plaintiff, as a qualified

medical  professional,  was  associated  with  the  Trust  right  since  the

inception but now stands removed.  The relief prayed for cannot be said

to be in the nature of vindicating personal rights of the first  plaintiff.

What was prayed was for framing of a proper scheme of administration

so that the Trust which was founded with the object of making available

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medical  and  related  services  to  the  general  public  could  attain  and

achieve  all  its  objectives  through  trustees  who  are  themselves  well

qualified to undertake such responsibility.

17. Viewed thus, the conclusion arrived at by the Trial Court in para

21 as quoted hereinabove, was quite correct and the matter did not call for

any interference by the High Court.  It  is  true that  certain paras of  the

plaint do indicate the grievances that the appellant were completely side-

lined while the control of the Trust was in the hands of the concerned

defendants.  The  allegations  highlight  that  the  Trust  was  not  being

managed properly, was not being managed by medical professionals and

there  was  siphoning  of  funds.  However,  the  substance  of  the  matter

discernible from para 21 as well as the principal relief claimed in the suit

is quite clear that what was being agitated were the public rights.  If in

respect of a trust which had set  up a hospital,  a  request was made for

framing of a proper scope of administration by appointing trustee from

medical  profession  and  from  public  for  proper  and  effective

administration of  the Trust,  the matter  would definitely fall  within the

scope of Section 92 of the Code.

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18. In  the  circumstances,  we allow this  appeal,  set  aside  the  view

taken by the High Court and restore the decision arrived at by the District

Court.  The appeal stands allowed without any order as to costs.   

……………………….J. [Uday Umesh Lalit]

……………………….J. [Vineet Saran]

New Delhi; March 03, 2020.