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1 Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3166  OF 2017 (Arising out of SLP(C) No.34719 of 2011)

Swami Shivshankargiri Chella Swami & Anr.  …  Appellant(s)

:Versus.:

Satya Gyan Niketan & Anr.  ... Respondent(s)

J U D G M E N T Pinaki Chandra Ghose, J.  

1. Leave granted.  

2. This  appeal,  by  special  leave,  has  been  filed  by  the

present  appellants  against  the  judgment  and  order  dated

August 1st, 2011 passed by the High Court of Uttarakhand at

Nainital in Civil Revision No.69 of 2008, whereby the revision

petition  filed  by  the  respondents  herein  was  allowed  and

consequently  the  application  filed  by  the  appellants  under

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2 Section 92 of the Code of Civil Procedure (in short ‘CPC’) for

obtaining permission to institute a suit was rejected.  

3. The question which comes up for consideration of  this

Court in the present matter is whether the High Court, on the

basis of analysis of the facts and circumstances of the case

and  findings  of  the  Court  below,  while  exercising  its

jurisdiction under Section 115 of CPC, was justified in setting

aside the order granting permission to initiate suit.  

4. The facts of  the case succinctly  stated are that  in the

year 1936, one Sri Swami Satya Dev purchased some land and

constructed a building thereon. Thereafter on 30.11.1940, he

waqfed (gifted) the disputed property to Respondent No.2, vide

registered deed, with the express condition that Respondent

No.2 will not have a right to mortgage or right of sale of the

property. The property was  waqfed for the development and

publicity  of  the  ‘Hindi  Language’  in  western  India  and  to

establish  a  centre  for  publicity  of  Hindi.  There  was  also  a

recital  in  the  deed  to  establish  a  library  and  to  start  a

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3 ‘Bhyakhan Mala’ etc. and the property was to be managed by a

sub-samiti constituted by respondent No.2.  

5. It appears that objective of transferring the property was

to achieve a specific  purpose i.e.,  publicize and develop the

Hindi Language. When it was felt that respondent No.2 was

not taking any interest in achieving the purpose for which the

property was dedicated, the appellants desired to initiate civil

proceedings  against  the  respondent.  One  Sri  Mukund  Ram

and Sri Krit Ram filed Application No.23/2004 under Section

92  of  CPC  and  the  appellants  herein  filed  Application

No.07/2006 under  the  same provision,  respectively,  seeking

permission  to  file  a  suit  against  the  respondents  herein  in

connection with the disputed property.  Since same relief was

sought  in  both  the  petitions,  both  applications  were

consolidated  and  Misc.  Case  No.23/2004  was  made  the

leading case. The learned District & Sessions Judge vide his

order dated 12.11.2008 observing that the word “trust” is to be

liberally construed, and in a sense as favourable as possible to

the assumptions of jurisdiction by a Court under Section 92,

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4 allowed both the applications and permitted the appellants to

file  suit  under  Section  92  of  CPC.  The  learned  District  &

Sessions Judge observed that the object of dedication of the

property shall decide the nature of it being considered a trust.

Relevant part of the order is reproduced as follows:

“Hence perusal of  the deed reveals the purpose to waqf the property was charitable and for the benefit of public at large. Hence prima facie it appears that a constructive trust was created by Swami Satya Dev by gifting the property to O.P. No.2, in which all the objects of the waqf and the management of property was given.”

In the later part of the order it was observed that:   

“Having gone through the entire evidence on record, I am  of  the  view  that  prima  facie  it  appears  that property in suit was waqfted to the O.P. No.2 for a particular  object  and  purpose  i.e.  publicity  and development of Hindi. The property is to be managed by O.P. No.2 as per directions of Swami Satya Dev – recitals of the deed prima facie proves that Sri Satya Dev  created  a  constructive  trust  by  gifting  the property  to  O.P.  No.2  has  not  become  exclusive owner  of  the  same,  because  it  was  gifted  with conditions  i.e.  O.P.  No.2  has  no  right  to  sale  or mortgage the property.  

So far as this fact is concerned that O.P. No.2 is the registered society under the Indian Registration Act,

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5 1960, does not affect the maintainability of the suit as held by the Kerala High Court in 1992 (2) page 429, Sukumaran Vs. Akamala Sree Dharma Sastha.”

6. Being aggrieved by the  order  of  the  learned District  &

Sessions  Judge,  the  respondents  filed  civil  revision  under

Section 115 of CPC before the High Court of Uttarakhand at

Nainital, being Civil Revision No.69 of 2008, for quashing the

order dated 12.11.2008 passed by learned District & Sessions

Judge, Haridwar. The said revision petition was allowed by the

High Court vide its judgment dated August 1st, 2011, whereby

the  order  granting  permission  under  Section  92  CPC  to

institute suit was set aside and quashed. Hence, this appeal

by special leave.

7. We have  carefully  examined  the  registered  deed  dated

30.11.1940 whereby the disputed property was transferred on

certain conditions. The very first question after the perusal of

the deed comes before us is whether a trust can be created by

virtue of a conditional gift.

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6 8. We have heard learned counsel for the parties at length.

Since the appellant was interested in achieving the purpose for

which property was transferred and therefore he approached

the Court of learned District Judge for seeking permission to

file a suit against the Respondents. It is also not disputed that

the property was transferred (waqfed) to Respondent No.2 vide

registered deed dated 30.11.1940.  

9. It is submitted by the counsel of the petitioners that the

mere fact that Respondent No.2 is a registered society does not

affect the maintainability of the suit in view of the judgement

given in the case of Sukumaran Vs. Akamala Sree Dharma

Sastha,  AIR 1992 Ker  406; Sugra Bibi  Vs.  Haji  Kummu,

[1969] 3 SCR 83; 1940 PC  (10).

10. Lastly, it was  a case of breach of administration of trust

and the same can be decided by way of  evidence and that

while granting leave the Court does not decide the right of the

parties or  adjudicate upon the merits of  the case.  The only

consideration relevant at such juncture is whether there is a

prima facie case for granting leave to file a suit and in the light

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7 of  this  submission  the  High  Court  was  not  justified  in

neglecting the prima facie case of the appellants.

11. Per contra, it is argued by the counsel for Respondents

that society Kashi Nagari Sabha is a registered society and is

also  the  absolute  owner  of  the  property  of  Satya  Gayan

Niketan  Ashram,  Jwalapur  and  cannot  be  considered  as  a

trust and the High Court has rightly allowed the revision of the

respondents. However, it appears to us that the present case

deals only with the issue of granting leave under Section 92 of

CPC to interested persons to initiate a suit.

12. The present Section 92 of the CPC corresponds to Section

539 of the old code of 1883 and has been borrowed in part

from  52  Geo  3  c  101,  called  Romilly’s  Act  of  the  United

Kingdom. A bare perusal of the said section would show that a

suit  can  be  instituted  in  respect  of  a  public  trust  by  the

advocate general or two or more persons having an interest in

the trust after obtaining leave of the Court in the principal civil

Court of original jurisdiction. An analysis of these provisions

would  show  that  it  was  considered  desirable  to  prevent  a

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8 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.

13. After  considering  the  deed  executed  in  the  favour  of

respondent No.2 (Prachaarini Sabha), which is not in dispute,

we have noticed that the purpose of transferring ownership of

the property was subject to certain conditions and purposes

which cast duties on respondent No.2, including development

of  the  Hindi  Language  and  opening  a  library.  Hence,  the

purpose is rendering the nature of Prachaarini Sabha to be a

trust.

14. In the present facts and circumstances, it can be easily

inferred from the perusal  of  the application made that  plea

was sought to seek permission only to institute a suit alleging

the Sabha to be acting as a trust. This Court in  Additional

Commissioner  of  Income  Tax,  Gujarat,  Ahmedabad  Vs.

Surat Art Silk Cloth Manufacturers’ Association, Surat,

(1980) 2 SCC 31, in paragraph 17, observed:

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9 “…Every trust or institution must have a purpose for which it is established and every purpose must for its  accomplishment  involve  the  carrying  on  of  an activity.”

Further, this Court in M/s. Shanti Vijay and Co. & Ors. Vs.

Princess Fatima Fouzia & Ors., (1979) 4 SCC 602, observed:

“The law governing the  execution of  trusts  is  well settled. In the case of a private trust, where there are more trustees than one, all must join in the execution of  the  trust.  The  concurrence  of  all  is  in  general necessary in transaction affecting the trust property, and a majority cannot bind the trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one body in the eye of law, and all must act together. This is, of course, subject to any express direction given by the settlor.”

15. This Court while discussing the scope and applicability of

Section  92  of  CPC  in  the  case  of  Harendra  Nath

Bhattacharya & Ors. Vs. Kaliram Das (dead) by his Heirs

and Lrs. & Ors., (1972) 1 SCC 115, observed in para 13:  

“It is well settled by the decisions of this Court that a suit  under Section 92 is of  a special  nature which presupposes  the  existence  of  a  public  trust  of  a religious  or  charitable  character.  Such  suit  can

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10 proceed only on the allegation that there is a breach of  such trust  or  that  directions from the Court  are necessary for the administration of the trust. In the suit, however, there must be a prayer for one or other of the reliefs that are specifically mentioned in the section.  Only  then  the  suit  has  to  be  filed  in conformity with the provisions of  Section 92 of  the Code of Civil Procedure. It is quite clear that none of the  reliefs  claimed  by  the  plaintiffs  fell  within  the section.  The  declarations  which  were  sought  could not possibly attract the applicability of Section 92 of the  Civil  Procedure  Code.  The  High  Court  was, therefore, right in holding that non-compliance with that section did not affect the maintainability of the suit.”

Further, in the case of Swami Parmatmanand Saraswati &

Anr. Vs. Ramji Tripathi & Anr., (1974) 2 SCC 695, while

precluding the application of  Section 92 of  CPC on suits to

vindicate personal or individual rights, this Court pointed out

as under:  

“10.  A suit  under Section 92 is a suit  of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit  can  proceed  only  on  the  allegation  that  there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff  must  pray for  one or more of  the

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11 reliefs  that  are  mentioned  in  the  section.  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.  A  suit  whose primary  object  or  purpose  is  to  remedy  the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs are brought  by  individuals  as  representatives  of  the public for vindication of public right, and 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  was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their  individual  or  personal  rights.  It  is  quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office

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12 of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92.”

16. Moreover,  while  discussing  the  giving  of  notice  to  the

proposed defendants in any matter before the granting of leave

under  Section  92  of  CPC,  this  Court  in  R.M.  Narayana

Chettiar  &  Anr.  Vs.  N.  Lakshmanan  Chetfiar  &  Ors.,

(1991) 1 SCC 48, noted in para 17 that –  

“A plain reading of Section 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  section  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 Section 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 Section 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.

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13 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 Section 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  Section  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.”

 17. It is also pertinent to mention the case of  B.S. Adityan

& Ors. Vs. B. Ramachandran Adityan & Ors., (2004) 9 SCC

720, wherein this Court opined:

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14 “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.”

Later in para 7 it was held:  

“7. The learned counsel for the appellants urged that the  order  that  was  passed  under  Section  92  CPC granting  permission  to  file  a  suit  is  whether administrative  in  character  or  otherwise;  that  this does arise when the objections of the defendants are considered; that as to scope of the meaning of the expression  “order,  judgment,  decree  and adjudication”.  He drew our attention to decision in Pitchayya v.  Venkatakrishnamacharlu,  (AIR  1930 Mad. 129) to the effect that the object of Section 92 CPC is to safeguard the rights of the public and of institutions  under  trustees.  In  this  regard,  he specifically  drew  our  attention  to  National  Sewing Thread Co.  Ltd. v.  James Chadwick  & Bros.  Ltd., (1953 SCR 1028).  He also adverted to decision in R.M.A.R.A.  Adaikappa  Chettiar v.  R. Chandrasekhara  Thevar  (AIR  1948  PC  12)  to contend that where a legal right is in dispute and the ordinary  courts  of  the  country  are  seized  of  such dispute, the courts are governed by ordinary rules of procedure  applicable  thereto  and  an  appeal  lies  if authorised by such rules, notwithstanding that the legal  right  claimed  arises  under  a  special  stature which does not in terms confer a right of appeal. In R.M. Narayana Chettiar v.  N. Lakshmanan Chettiar (1991) 1 SCC 48, this Court has examined in detail

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15 the scope of Section 92 CPC and explained the object underlying  therein  in  granting  permission  to  file  a suit. In this case, this Court held that court should normally  give  notice  to  the  defendants  before granting leave as a rule of caution but court is not bound  to  do  so  in  all  circumstances  and non-issuance of notice would not render the suit bad or non-maintainable and the defendants can at any time apply for revocation of the leave, and provision under Section 104(1)(ffa) for appeal against refusal of grant of leave does not lead to a different conclusion. In  the  light  of  this  decision,  we do not  consider  it necessary to advert to other decisions cited by the learned counsel. More so, the matter was considered by the  Law Commission  in  its  report  submitted  in April 1992 on this aspect of the matter. After noticing various decisions of different courts and the decision in R.M. Narayana Chettiar case the Law Commission recommended that to expect the court to issue notice and then to  try  the  several  points  of  detail  before granting leave in the light of the objections put forth by the respective defendants, would mean that there will  be  a  trial  before  trial  and  this  would  not  be desirable.  The  recommendation  of  the  Law Commission was, therefore, to insert an explanation below Section 92 CPC to the effect that the court may grant leave under this section without issuing notice to  any  other  person,  but  this  does  not,  of  course, mean that the court will grant leave as a matter of course.  Particular  emphasis  is  made  and  heavy reliance  is  placed on  the  decision  of  this  Court  in Shankarlal Aggarwala v. Shankarlal Poddar (1964) 1 SCR  717, to  emphasise  distinction  between administrative  and judicial  orders.  It  is  urged that order from which the appeal was preferred was not a judgment within the meaning of clause 15 of the Letters Patent and so no appeal lies to the Division Bench.  Reference  is  made  to  the  decision  of  this

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16 Court in  Institute of Chartered Accountants of India v.  L.K.  Ratna  (1986)  4  SCC  537, to  bring  out distinction between administrative and judicial order. Scope of Section 92 CPC was examined in  Charan Singh v.  Darshan Singh (1975) 1 SCC 298,  where the whole case turned on the facts  arising in  that particular case.”

And lastly, it was opined by this Court in para No.9:

“…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. 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 or even in the course of suit which may be established that the suit does not fall within the scope of Section 92 CPC.  In  that  view of  the  matter,  we do not  think, there is any reason for us to interfere with the order made by the High Court”.

18. We have  noticed  that  the  trust  deed  was  executed  in

favour of the respondents. But it appears in view of the facts

and circumstances of this case and the submissions made on

behalf  of  the  respondents,  that  it  was  waqfed/gifted  for  a

lawful purpose i.e.  a “trust” is an obligation annexed to the

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17 ownership  of  the  property,  and  arising  out  of  a  confidence

reposed  in  and  accepted  by  the  owner,  or  declared  and

accepted  by  him,  for  the  benefit  of  another,  or  of  another

owner, (Act II of 1882 Trusts, Section 3]. Accordingly, in our

opinion,  the  application  filed  by  the  appellants  was  falling

within the required ambit of Section 92 of CPC and the learned

District Judge had rightly permitted the appellants to institute

a suit. We are of the considered opinion that High Court has

erred in setting aside the well reasoned order of the learned

Judge and grossly erred in not diligently examining the facts

and circumstances in the light  of  the registered deed dated

30.11.1940.

19. Apart  from  the  above  discussion,  we  have  also  taken

notice  of  the  fact  that  plaint  was  not  annexed  with  the

application  filed  under  Section  92  of  the  CPC  which  is

pre-requisite for filing the application for leave to file a suit.

Based on the averments in the plaint only, it can be inferred

that whether an application under Section 92 is maintainable

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18 or  not.  This  Court  in  the  case  of  R.M.  Narayana  Chettiar

(supra)  at para No.10 observed:

“Neither of the aforesaid decisions of this Court deal with  the  question  as  to  whether,  before  granting leave  to  institute  a  suit  under  section  92, Advocate-General, or later the Court, was required to give  an opportunity  to  the  proposed defendants  to show cause why leave should not be granted. What learned counsel for the appellants urged, however, was that these decisions show that at the time when the  Advocate-General  or  the  Court  is  required  to consider whether to grant leave to institute a suit as contemplated  under  section  92,  it  is  only  the averments in the plaint which have to be examined and  hence, the  presence  of  the  defendant  is  not necessary.  We  may  now  consider  the  High  Court decisions  relied  on  by  the  learned  counsel  for  the appellants.”

20. After the amendment was brought to the Code of  Civil

Procedure in 1976, duty was cast upon the Court, instead of

Advocate General,  to take into account these considerations

for  granting  leave  under  this  section.  Prior  to  the  1976

amendment, all these considerations were to be kept in mind

by the Advocate General before granting consent to institute a

suit against a public trust.

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19 21. Accordingly, in this factual matrix and the law laid down

by this Court and other relevant judicial precedents, we hold

that the learned Single Judge erred while granting leave to the

appellants. It was the statutory duty of the Court to examine

that  whether  the  plaint  is  so  annexed  with  the  application

under Section 92 CPC or not. We have noticed that High Court

has also erred in neglecting this fact.

22. From a perusal of the compete material on record, in our

opinion, the allegations put forth could only be determined by

way  of  evidence  in  a  special  suit  under  Section  92  and

respondent  No.2  is  enjoying  the  ownership  of  the  disputed

immovable property while acting as a trustee. Hence, for the

ends of complete justice, the appellants are granted liberty to

move appropriate application in accordance with law, within a

period  of  30  days  from the  date  of  pronouncement  of  this

judgement.  Civil  Courts  having jurisdiction to entertain any

suit  in  this  country  are  expected  to  carefully  examine

applications of such kind as discussed above.

Page 20

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This appeal is disposed of in above-noted terms.  

……………………………….. J (Pinaki Chandra Ghose)

……………………………….. J  (Ashok Bhushan)

New Delhi;

February 23, 2017.