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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 1

st

, 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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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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‘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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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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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 1

st

, 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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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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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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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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“…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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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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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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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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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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“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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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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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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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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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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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.

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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.