Ashok Kumar Gupta vs M/S Sitalaxmi Sahuwala Medical … on 3 March, 2020


Supreme Court of India

Ashok Kumar Gupta vs M/S Sitalaxmi Sahuwala Medical … on 3 March, 2020

Author: Uday Umesh Lalit

Bench: Uday Umesh Lalit, Hon’Ble Ms. Malhotra, Hemant Gupta

         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


                                                 JUDGMENT

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:-
Signature Not Verified

Digitally signed by
MUKESH KUMAR
Date: 2020.03.03
13:03:48 IST
Reason:

“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 5 th 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 1 st plaintiff and the 4th
defendant. The plaintiffs are Trustees of the 1 st
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 2 nd
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 1 st 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 4 th 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 1 st 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 1 st plaintiff
is a doctor. His qualification is Master of Surgery. 2 nd
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 1 st
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.



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