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PETITIONER: MAHANT PRAGDASJI GURU BHAGWANDASJI

       Vs.

RESPONDENT: PATEL ISHWARLALBHAI NARSIBHAI ANDOTHERS

DATE OF JUDGMENT: 07/03/1952

BENCH: MUKHERJEA, B.K. BENCH: MUKHERJEA, B.K. FAZAL ALI, SAIYID BOSE, VIVIAN

CITATION:  1952 AIR  143            1952 SCR  513  CITATOR INFO :  F          1967 SC1044  (7)  F          1972 SC 246  (11)  RF         1975 SC 371  (9)  D          1991 SC 221  (9)

ACT:      Civil  Procedure Code (Act V of 1908) s.  92--Religious trust--Allegation of breach of trust not made out--Direction for  administration  of trust not  sought--Decree  declaring existence of public trust--Whether legal and  proper--Nature of suit under s. 92.

HEADNOTE:      In  a  suit under sec. 92 of the  Civil  Procedure  Code alleging  that the defendant had been guilty  of  misconduct and breach of trust as Mahant and praying, inter alia,  that the temple and properties in suit be declared as a religious and  charitable trust and the defendant be removed from  the Gadi  and a suitable successor appointed in his  place,  the District Judge and the High Court held concurrently that the defendant  was not guilty of misconduct or breach  of  trust and dismissed the suit, but made a declaration to the effect that the temple and properties in the possession of  defend- ant belonged to a public trust of a religious and charitable character:     Held,  that a suit under sec. 92, Civil Procedure  Code, is  a  suit  of a special character  which  presupposes  the existence  of  a public trust of a religious  or  charitable character and it can proceed only when there is a breach  of such  trust or directions from the Court are  necessary  for the administration thereof and it must pray for one or other of  the reliefs that are specifically mentioned in the  sec- tion;  and therefore as the Courts found  concurrently  that the allegations of breach of trust were not made out and  no direction  of the Court for proper administration  of  trust was  sought,  the very foundation of a suit under  sec.  92, Civil Procedure Code, became wanting and the plaintiffs  had no cause of action for their suit; and in the  circumstances the  declaration of the High Court about the existence of  a public  trust  was inconsequential and was no more  than  an obiter dictum and such declaration must be deleted from  the

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decree dismissing the suit.

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION:  Civil Appeal No. 99  of 1951.   Appeal from a Judgment and Decree of the High  Court of Judicature at Bombay (Stone C.J. and Dixit 3.) dated 14th July,  1947,  in First Appeal No. 128 of  1943  affirming  a decree  dated 14th October, 1942, of the Court of  the  Dis- trict Judge of Kaira at Nadiad in Civil Suit-No. 15 of 1928. 514     C.K. Daphtary (N. C. Shah, with him) for the appellant. Rajani Patel for the respondent. 1952. March 7.  The judgment of the Court was delivered by   MUKHERJEA  J.---This appeal is on behalf of the  defendant and  it arises out of a suit, under section 92 of the  Civil Procedure Code,  commenced by the plaintiffs who were origi- nally  nine in number in the court of the District Judge  of Kaira  at  Nadiad. Out of the nine plaintiffs, only  one  is surviving, and he is now the sole respondent in this appeal, all the rest having died pending this protracted litigation, which began as early as the year 1928.     The  case of the plaintiffs, in substance, was that  one Kuberdas, who was a religious teacher and a holy man rounded a cult known as Kaivalya or Karunasagar Panth, the principal tenet  of which is that the realization of the  Infinite  is possible  only  through the medium of a  Guru  or  spiritual preceptor.   Kuberdas  received  money and  lands  from  his followers and disciples and with this fund he built a temple at Sarsa. Kuberdas by will appointed his principal  disciple Narayandas  to succeed him on the Gadi and Narayandas  built another and a bigger temple wherein he installed an image of Kuberdas, with the images of two staff bearers on two sides. The Mahants after Narayandas were Baldevdas, Bhagwandas  and Pragdasji, who is the defendant in the suit and each one  of them  was appointed by a will executed by  his  predecessor. The  defendant, it is alleged, had been acting in  a  manner contrary to the usages of the institution and was guilty  of incontinence, mismanagement and improper alienation of trust properties. On these allegations the plaintiffs prayed that:    (1)  the  properties  described in the  schedule  to  the plaint  as well as other properties under the management  of the  defendant  be declared to be religious  and  charitable trust properties of the Kaivalya or Karuna sagar Panth; 515     (2)  the defendant be removed from the Gadi and  posses- sion of the properties and a suitable successor appointed in his place;     (3) the defendant be called upon to render accounts  for the period of his management; and     (4)  a scheme might be framed for proper  management  of the institution.     The defendant in his written statement traversed all the material allegations in the plaint and contended infer  alia that  the  suit was not maintainable inasmuch as  no  public trust  of  a religious and charitable character  existed  in respect  to  the  suit properties  which  were  the  private properties of the defendant himself.     On  these pleadings, a number of issues were  framed  by the District Judge, of which the two following were tried as preliminary issues, viz.,      (1)  Whether the temple and the properties in suit  are public charitable properties ? and           -

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  (2)  if not, whether this court has jurisdiction to  try the suit ?     By  his judgment dated the 18th of July, 1935, the  Dis- trict Judge decided both these issues against the plaintiffs and  dismissed the suit.  Against this decision  the  plain- tiffs  took  an  appeal to the High  Court  of  Bombay.  The learned  Judges  of the High Court, who heard  the   appeal, took  the  view  that the ownership of. the suit  properties was so restricted by the obligation to maintain the institu- tion  for purposes which only could be described  as  public charitable  purposes, that the suit must be regarded as  one coming within section 92, Civil Procedure Code.  The  result was  that the judgment of the trial court was  reversed  and the  case was remanded to that court in order that it  might be heard and disposed of on its merits. The judgment of  the High Court is dated 24th of January, 1938.   Being aggrieved by this order, the defendant prayed  leave to  appeal to the Judicial Committee, but  this  application was refused. He thereupon filed a petition before the  privy Council praying for special leave. 516 The Privy Council also refused to grant leave on the  ground that  the matter was still then in an  interlocutory  stage. They,  however, said specifically that the order of  refusal was  without prejudice to the presentation of a fresh  peti- tion  after all  the issues were determined. The  case  then went back to the trial court and on the evidence adduced  by the parties, the District Judge came to the conclusion  that the  allegations of misconduct and breach of trust  made  by the plaintiffs were not proved and in this view he dismissed the  suit, subject to the declaration already given  by  the High Court that the temple and the properties in  possession of  the  defendant  were public,  religious  and  charitable properties.   The  plaintiffs filed an appeal  against  this decision  to the High Court of Bombay and the High Court  by its judgment dated 14th of July, 1947, affirmed the decision of the District Judge and dismissed the appeal.     The  defendant  has  now come up to this  court  on  the strength  of  a certificate granted by the High  Court;  and though  formally  it is an appeal against the  final  decree made  by the High Court on 14th of July, 1947, in  substance it challenges the propriety of the order of remand passed on 24th  January,  1938, by which the High Court  reversed  the decree of dismissal made by the District Judge and  remanded the  case, being of opinion that the properties  in  dispute did appertain to a public trust of a religious and  charita- ble character.      Mr.  Daphtary  appearing in support of the  appeal  has contended  before us that on the question as to  whether  or not  a public trust existed in respect of the properties  in suit,  the view taken by the trial judge was right and  that the decision of the High Court is based upon a  misapprecia- tion of the evidence on the record.     We  have been taken through the entire evidence  by  the learned counsel on both sides; but having regard to the view which we propose to take in this case we deem it unnecessary to record any  finding as to whether the properties in  suit do or do not appertain to a public charitable trust.  In our opinion, after the 517 decision  arrived at concurrently, by both the courts  below on the merits of the case, it was beyond the scope of a suit framed  under section 92, Civil Procedure Code, to give  the plaintiffs a bare declaration of this character and make  it a  part  of the decree, although the suit  itself  was  dis-

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missed.      A  suit  under section 92, Civil Procedure Code,  is  a suit of a special nature which presupposes the existence  of a public trust of a religious or charitable character.  Such suit  can  proceed only on the allegation that  there  is  a breach  of such trust or that directions from the court  are necessary  for the administration thereof, and it must  pray for  one or other of the reliefs that are specifically  men- tioned in the section. It is only when these conditions  are fulfilled that the suit has got to be brought in  conformity with  the provision of section 92, Civil Procedure Code.  As was  observed by the Privy Council in Abdur Rahim v.  Barkat Ali(1),  a  suit  for a declaration  that  certain  property appertains  to a religious trust may lie under  the  general law but is outside the scope of section 92, Civil  Procedure Code. In the case before us, the prayers made in the  plaint are  undoubtedly appropriate to the terms of section 92  and the  suit proceeded on the footing that the  defendant,  who was alleged to be the trustee in respect of a public  trust, was  guilty  of breach of trust. The  defendant  denied  the existence of the trust and denied further that he was guilty of  misconduct  or  breach of trust. The  denial  could  not certainly  oust the jurisdiction of the court, but when  the courts  found concurrently, on the evidence adduced  by  the parties,  that the allegations of breach of trust  were  not made out, and as it was not the case of the plaintiffs, that any direction of the court was necessary for proper adminis- tration  of the trust, the very foundation of a  suit  under section  92,  Civil Procedure Code, became wanting  and  the plaintiffs  had absolutely no cause of action for  the  suit they instituted. In these circumstances, the finding of  the High Court about the existence of a public trust  was wholly inconsequential and as it was (1) (1928) 55 I.A. 96, 67 518 unconnected with the grounds upon which the case was actual- ly disposed of, it could not be made a part of the decree or the  final  order in the shape of a  declaratory  relief  in favour of the plaintiffs.  It has been argued by the learned counsel  for  the respondents that even  if  the  plaintiffs failed  to prove the other allegations made in  the  plaint, they did succeed in proving that the properties were  public and charitable trust properties--a fact which the  defendant denied.  In these circumstances, there was nothing wrong for the  court to give the plaintiffs a lesser relief than  what they actually claimed. The reply to this is, that in a  suit framed under section 92 of the Civil Procedure Code the only reliefs  which  the plaintiff can Claim and  the  court  can grant  are  those enumerated specifically in  the  different clauses of t, he section. A relief praying for a declaration that  the properties in suit are trust properties  does  not come  under any of these clauses. When the defendant  denies the existence of a trust, a declaration that the trust  does exist might be made as ancillary to the main relief  claimed under  the section if the plaintiff is held entitled to  it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a  declaratory relief  under the provision of section 92,  Civil  Procedure Code.  The finding as to the existence of a public trust  in such  circumstances would be no more than an  obiter  dictum and  cannot constitute the final decision in the  suit.  The result  is  that in our’ opinion the decision  of  the  High Court  should stand, but the decree and the concluding  por- tion, of the judgment passed by the trial court and affirmed

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by the High Court on appeal shall direct a’ dismissal of the plaintiff’s  suit merely without its being made  subject  to any  declaration as to the character of the properties.   To this  extent  the  appeal is allowed and  the  final  decree modified. The order for costs made by the courts below  will stand. Each party will bear his own costs in this appeal.                       Appeal  allowed Agent for the appellants: Ganpat Rai. Agent for the respondents: K.J. Kale. 519