Uttarakhand High Court
Ved Prakash And Ors. vs Ved Mata Gayatri Trust And Ors. on 8 July, 2005
Equivalent citations: AIR2005UTR43, AIR 2005 UTTARANCHAL 43
Author: P.C. Verma
Bench: P.C. Verma, B.S. Verma
JUDGMENT P.C. Verma, J.
1. The appellants preferred this appeal under Section 104 of the Civil Procedure Code against the order dated 31-7-2001 passed by the District Judge, Hardwar In Civil Misc. Case No. 12 of 1999 Sri Ved Prakash v. Ved Mata Gayatri Trust, whereby the District Judge has refused to grant leave to file suit under Section 92 of the Civil Procedure Code by rejecting the application of the applicants/plaintiffs paper Nos. 4C-2 and application paper No. 82-C2.
2. Brief facts giving rise to this appeal are that plaintiffs filed stilt with the prayer to grant leave to institute the suit under Section 92 of the CPC in respect of defendant No, 1 on the grounds, inter alia, that the defendant No. 1 is a Trust for public purposes of a charitable & religious nature, duly exempted even under Section 80G of the Income Tax Act, 1961 having its principal activity in Shanti Kunj, Bhopatwala, Hardwar (hereinafter referred to as the Trust). That the aforesaid Trust was founded by late Sim\ Bhagwati Devi Sharma wife of late (Acharya) Sri Ram Sharma in respect of which she also executed a registered instrument dated 12-11-1969. That Smt. Bhagwati Devi Sharma, founder of the Trust appointed herself as the trustee and along with her she appointed Acharya Shri Ram Sharma aforesaid and her husband, Sri Satya Deo of Mathura, Sri Uma Shanker Chaturvedi of Bilaspur (M.P.) and Sri Shiv Shanker Gupta of Delhi as the trustees. That Smt. Bhagwati Devi Sharma, the founder of the Trust also executed a declaration dated 23-1-1974 in respect of the working of the Trust and celebrated the aims and objectives for the religious purpose. That in the year 1974 Sri Satya Deo and Sri Uma Shanker Chaturvedi have resigned from trustship and in their places Sri R.S. Verma and Sri Gulzari Mal Goel were taken as trustees. That later on Sri R.S. Verma died and in his place defendant No. 4 who was working as Accountant, was taken as a trustee and on the death of Sri Shiv Shanker Gupta, defendant No. 5 Major V.K. Khare was appointed as trustee by Smt. Bhagwati Devi Sharma. That after the death of Smt. Bhagwati Devi Sharma, defendant N6s. 1 & 3 started grabbing the assets of the Trust and ignoring other trustees and other trustees were not doing anything in the matter. That lot of ornaments and gold are received in donations but nothing is accounted for in the books of the Trust. Therefore, the Trust accounts are not being maintained properly and regularly. That the defendant Nos. 2 to 8 are committing constant breaches of Trust and are not managing and administering the Trust in a proper way and it is necessary in the interest of public and in the interest of justice to grant leave to the plaintiffs to file the suit under Section 92, CPC. The plaintiffs filed application paper No. 4C-2 with the prayer that leave be granted to the applicants under Section 92 of the CPC to file the suit.
3. It reveals from the record that initially the suit with the prayer to grant, leave to institute a suit was filed on behalf of five applicants but later on the applicants Nos. 3 & 5 by moving an application prayed for separating themselves from the suit which was allowed by the Court. The application paper No. 4C-2 was pressed only by three applicants/plaintiffs i.e. plaintiff Nos. 1, 2 & 4 before the lower Court. Besides the said application the plaintiffs also moved application, paper No. 82C-2, requiring the defendants to produce the accounts of the Trust for the year 1997-98 in the Court.
4. The defendant contested the case before the lower Court. The opposite party Nos. 1 to 3 filed their Joint written objection supported by affidavit. The opposite party Nod. 4 to 7 also filed their joint written objection supported by affidavit. The opposite party No. 8 filed separate written reply accepting the version of the applicants/plaintiffs and pressed for allowing the application of the applicants/plaintiff. The main objection of the Opp. party Nos. 1 to 7 was that on the direction of the opposite party No. 8 the plaintiffs have filed the present suit with mala fide intention and there is collusion in between the plaintiffs and opposite party No. 8. It was also said on behalf of the opposite parties that under the provisions of Section 92, CPC the applicants cannot be said to be the well wisher of the Trust and they have no right to file a suit. It was also the contention of the-opposite parties that opposite party No: 8 was expelled from the Trust on accouiit of his indiscipline act and the plaintiffs' of the present suit who were working with the Trust left the Trust on their free will It was .also contended on behalf of the opposite parties that the applicants/plaintiffs can be seen as the representatives of opposite party No. 8 due to collusion because the plaintiffs and opposite party No. 8 b6th established a Trust on 12-3-1999 with the name of Param Pujya Guru Dev Gayatri Parivar Trust and the plaintiffs at their own free will left the Shantikunj in support of opposite party No. 8. The amendment was made in the said Trust deed on 12-4-1999 and the plaintiffs are joining with the opposite party No. 8 in the said new Trust while the applicants/plaintiffs filed this suit in the Court on 17-4-1999. In this situation filing of the suit on 17-4-1999 shows that the plaintiffs are in collusion with the opposite party No. 8 and they are indulging to ruin the Trust.
5. The learned lower Court reached to the conclusion that the plaintiffs have no bona fide interest at the present time with the opposite party No. 1, which is a religious and charitable Trust. The plaintiffs who have joined with another Trust and have rival intention with the opposite party No. 1-Trust, are not entitled to get the leave to file a suit against the opposite party No. 1 Trust. The lower Court has discussed the catena of decisions and on the basis of the said case-laws held that the opp. party No. 1 Trust is working at the national and international level and it is necessary to save this type of Trust from unnecessary harassment and rejected the application paper No. 4C-2 filed by the applicants /plaintiffs. Feeling aggrieved that applicants/plaintiffs have come up in this appeal.
6. The plaintiffs/appellants have filed the appeal on the grounds that the view of the Court below that they have established any different trust or they were in collusion with defendant No. 8 is based on surmises and conjectures and is not supported by any legal evidence. Further the allegations of mala fide specifically denied could not give the licence to the defendants/respondents to mismanage and misappropriate the Trust property etc. therefore the application of the plaintiffs/appellants ought to have been decided by consideration of merit and the same could not be legally rejected on the ground of alleged mala fide if the ingredients of Section 92, CPC is established by the plaintiff/appellants. Therefore, the impugned order is grossly illegal and untenable. The Court below has totally ignored the averments made by the plaintiffs/appellants in their affidavit and the admission of the defendants/respondents and has totally misread and misconstrued the materials on record including the audit report while deciding the question of entitlement of plaintiff/appellants for grant of leave to institute and try suit under Section 92, CPC against the defendants/respondents and, therefore, the impugned order has been passed without application of mind.
7. Having heard the submissions of learned counsel for both the parties and having gone through the entire material on record, the main point for consideration before us is whether the applicant-appellants have made out a case that they have interest in the Trust "Ved Mata Gayatri Trust", Shanti Kunj, Hardwar, as envisaged by Section 92 of the CPC in view of the allegations made by them in their application/ affidavit filed before the trial Court.
8. For determination of the controversy, it is necessary to scrutinize the plaint allegations. The instant suit has been sought to be filed by the plaintiffs under Section 92 of the CPC with a prayer to remove the present trustees and to appoint new trustees. It is not disputed that the defendant No. 1 is a Public Trust. For a just decision of the case, the relevant portion of sub-section (1) of Section 92 of the CPC is necessary to be reproduced hereunder :-
"92. Public Charities (1) In the case of any alleged breach of any express or constructive trust created for public purposes pf 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) remoying 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 enquiries:
(e) declaring what proportion 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."
9. From a bare reading of Section 92 of the CPC, it is evident that leave of the Court is a precondition 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. In this case, it is not disputed that notice of the application under Section 92, CPC filed by the plaintiffs-appellants (paper No. 4-C2) was given to the Caveator/ counsel for the opposite parties on 17-4-1999 and 23-4-1999 was fixed for preliminary hearing of the application by the Trial Court. On that day, the case was ordered to be registered as misc. case and notices were issued to the opposite parties. Initially the applicants failed to take steps for service despite sufficient time given to them, therefore, the application 4-C was dismissed for non-prosecution vide order dated 2-8-1999. Subsequently, the application was restored and the same was heard on merits.
10. From the record, it is evident that initially as many as five applicants, namely, Sri Ved Prakash, Shyamvir Singh, Jitender Raghuvanshi, Kamlesh Chaurasia and Dr. Prabhat Kumar, joined in moving the application under Section 92 of the CPC and as many as eight persons were arrayed as opposite party-defendants including O.P. No. 8 Balram Singh Parihar. O.P. Nos. 3 and 5 Jitender Raghuvanshi and Dr. Prabhat Kumar later-on moved application before the Court for deleting their names from the array of applicants, which was allowed and their names were struck off vide order dated 17-5-2001. Except the O. P. No. 8, all the opposite parties resisted that application. O. P. No. 8 has supported the case of the applicants. The main objection of the opposite party Nos. 1 to 7 was that the O.P. No. 8 Balram Singh Parihar in collusion with other applicants had deserted the Trust out of their own free will and formed a separate Trust in the Name of Param Pujya Gurudev Gayatri Parivar Trust on 12-3-1999, and that the applicants are in collusion with O.P. No. 8, therefore, the intention of the applicants is mala fide. It was also contended on behalf of the opposite parties-defendants that the applicants are not the persons having interest in the Trust and that the application is misconceived. The learned trial Court after hearing arguments of both the parties held that the intention of the applicants to institute the suit against the O.P. respondents cannot be said to be bona fide and they cannot be said to be the persons having interest in the Trust, because the applicants in association with O.P. No. 8 had formed a separate Trust on 12-3-1999. The trial Judge discarded the contention of the appellants to summon the Account Ledgers of the Trust on the ground that they are not persons having interest in the Trust and that the annexures 13 to 30 filed along with affidavit of O.P. No. 3 were sufficient to falsify the accusation of misusing the funds, etc. of the Trust. It also came to the conclusion that the facts and the circumstances of the case are sufficient to indicate that the applicants are in collusion with O.P. No. 8. Accordingly, the trial Court declined to grant leave to the applicants to file the suit.
11. We have perused the plaint filed by the applicants. The application under Section 92, CPC was moved on 17-4-1999. From the side of the O.P. Nos. 4 to 7, a number of documents have been filed before the trial Court per list 30-C. Paper No. 37-C is a photostat copy of amendment sought in the new Trust "Param Pujya Guru Dev Gayatri Parivar Trust" formed by Balram Singh Parihar on 12-3-1999. In this document, Sarvsri Bal Ram Singh Parihar, Shyamvir Singh, Jitendra Raghuvanshi, Ganga Singh and Jagdish Patidar have been mentioned as new Trustees. One of the attesting witness is Sri Ved Prakash Gupta, s/o late Sri Raghuvir Saran. It is thus clear that trustees Shyamvir Singh is the applicant No. 2 and Jitendra Raghuvanshi is the applicant No. 3, while Bal Ram Singh Parihar is the opposite party No.; 8. It may also be noted here that attesting witness Ved Prakash Gupta, aforesaid is the, plaintiff No. 1 in this case. The applicant-appellants could -not show that they are the persons having interest in the aforesaid Public Trust "Ved Mata Gayatri Trust" (Shanti Kunj) On the other hand, the contention of the respondents that the application 4-C under Section 92 of the CPC has been moved by the appellants in collusion with O. P. respondent No. 8 Balram Singh Parihar finds support from the record.
12. It has been vehemently submitted before us on behalf of the appellants that before granting leave by the Court under Section 92 of the CPC notice to the proposed defendants was not necessary. He has relied upon the case of R.M. Narayana Chettiar v. N. Lakshmanan Chettiar, . The ratio of the case law is not disputed. In the case before the Apex Court, the appellants instituted Suit No. O.S. 55 of 1987 before the Subordinate Judge of Sivaganga in Tamil Nadu against, the respondents as a representative suit inter alia praying for framing a scheme for a public charitable trust. On the same day, the said Court granted leave by passing an order reading "permitted" and issued summons to the respondents. The respondents filed an interim application for revoking the leave granted on the ground that the respondents had not been given any opportunity to be heard before leave was granted. The learned Subordinate Judge dismissed the said application on the ground that the grant" of leave was an administrative act of the Court and no notice to the respondents was required before such leave was granted. The respondents then went up in Revision before the Madras High Court, which was allowed by a judgment delivered by learned single Judge, who took the view that an analysis of the' provisions of Section 92 of the Code shows that in order to institute a representative suit as contemplated in the said Section two or more persons must have an interest in the trust and they should have obtained the leave of the Court before they institute the suit. The plaintiff-appellants came up before the Apex Court. It was observed by the Apex Court that "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 facts of the instant case are , distinct. In this case, the permission under Section 92 of the CPC was not given for filing of the suit. Moreover, in the case before us, the opposite parties had already filed a caveat before the Court below, therefore, the notice of the application under Section 92 of the CPC was given to them. The Apex Court has held in the aforesaid case that the Court is not bound to give such notice although as a rule of caution it should normally give such notice. Hence the case law is of no avail to the appellant-plaintiffs.
13. So far as the contention of the appellants that the respondents have been mismanaging and misappropriating the Trust property, funds, etc. therefore, the application of the appellants ought to have been allowed is also misconceived. From a plain reading of Section 92 of the Code, it is clear that right to institute the suit is only available in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, either to the Advocate General or two or more persons having an interest in the trust. As narrated earlier, in the plaint, the applicant-appellants have tried to level accusations against few of the opposite parties in respect of alleged breach of the Trust.
14. As against it learned counsel for the respondents vehemently submitted that while deciding the application under Section 92 of the Code the interest of the plaintiff has to be considered on the facts of the given case and the interest must be something more than a merely "sentimental" or "abstract" one. In support of his contention the learned counsel for the respondents "has relied upon the case of Swami Gayananand v. Jagdish Chandra Bagchi, AIR 1942 All 315. The Allahabad High Court observed that "In considering the question whether the plaintiff has interest in the particular trust within the meaning of Section 92 it would be certainly not less dangerous than in many other class of cases to try to apply the conclusions of decided cases to the particular facts and to overlook that each case must be considered with reference primarily to its own facts. But it is useful, nevertheless, to observe from decided cases what principles have from time to time been applied to the question." In that case reference was made to the case of T.R. Ramachandra Aiyar v. Paramesh-waran Unni, AIR 1919 Mad 384 wherein it was held that "The whole question on the meaning of the word 'interest'. It may well be that, as the majority of the Judges in the Madras High Court, appear to think, the necessary 'interest' must be something more than a merely 'sentimental' or ' abstract' one. Or it may be, as the other Judges have thought, that the abstract interest of a Hindu in his own religious institutions is itself sufficient to support a suit without showing anything more. We think, however, that, without being compelled to decide between these two points of view, there is yet another class of case in which the plaintiffs failed to establish that they have an 'interest' of any sort or kind, even though they do happen to be local Hindus. Even an abstract interest is in a sense an 'actual' interest. It is genuine interest, even though in the abstract, it proceeds from a real concern for their own faith But in a case in which the plaintiffs, notwithstanding that they are local Hindus and Brahmans, do not even trouble to assert that they have an 'interest' of any kind - concrete or abstract we find it very difficult to hold that they can maintain a suit under Section 92, Civil P.C."
The Madras High Court further observe'd that "we are content to say that the plaintiffs have not proved an 'interest' of any kind. We think that even an 'abstract' interest (assuming that it could in some circumstances support a suit) would have to be an 'actual' interest, i.e. an abstract interest which the plaintiffs really have. And, where, as here, the plaintiffs themselves do not even trouble to say whether they have any concern at all in the suit they sponsor and there are in fact other unusual features such as the daily presence in Court and assistance given to counsel appearing in the suit by one Harish Chandra Varma, we can come to no other conclusion but that the qualification required by Section 92 of the Act is not satisfied". Ultimately it was held that "In our view, the plaintiffs are not persons who have shown that they had 'such an interest as would enable them to maintain the suit." The ratio of the case of Swami Gayananand (AIR 1942 All 315) (supra) are fully applicable to the present case. In the case before us the applicant-appellants have failed to prove that they are. in deed, the persons having such an interest as would enable them to maintain the suit.
15. We have already stated above that from the record it is evident that the applicant-appellant in collusion with opposite party/respondent No. 8 Sri Balram Singh Parihar after deserting the trust "Ved Mata Gayatri Trust" formed separate trust on 12-3-1999. Had there been innocence on the part of the applicant-appellants, they would have come up before the Court with an application under Section 92 of the Code before forming another Trust in the name of "Param Pujya Guru Dev Gayatri Parivar Trust" on 12-3-1999.
16. There is yet another important relevant fact to be taken note of is that initially applicant No. 3 Jitendra Raghuvanshiand applicant No. 5 Dr. Prabhat Kumar joined the other applicants in the application under Section 92 of the CPC having their alleged common interest with the remaining three applicants. It is significant to mention that when the O. P. respondent Nos. 1 to 7 filed objections before the trial Court against the said application, the applicant No. 5 and applicant No. 3 moved separate applications on 31-7-2000 and 21-10-2000 respectively with a prayer that they were satisfied with the objections filed by the opposite parties and they be permitted to be excluded from the array of the plaintiff-applicants. Both these applications were heard and allowed by the trial Court on 4-1-2001. The applicant-plaintiff alleged their interest in paragraph Nos. 26 and 27 of the plaint by staging that they are dedicated to the Trust "Ved Mata Gayatri Trust" but surprisingly the applicants did not choose to disclose in their plaint that they had already formed a new Trust at the time of filing the application under Section 92 of the CPC or any time thereafter. Moreover, the O.P. No. 3 Dr. Pranav Pandya filed his affidavit paper No. 63-C. Annexure-XII of this affidavit is the true copy of Trust Deed dated March 12, 1999 in respect of Trust floated by the O.P. No. 8 in association with the applicants under the name of Param Poojya Gurudev Gayatri Parivar Trust. The record reveals that the applicant-appellants have not refuted the affidavit filed by the O.P. No. 3 at any stage of the proceedings before passing of the impugned order by the trial Court. This circumstance clearly lends support to the contention of the respondents that the applicants are the functionaries of another Trust and, therefore, they cannot be said to be the persons having any interest in the Trust in question and having formed another Trust by the applicants and O.P. respondent No. 8, it can safely be held that they must have rival contention against the Trust in question.
17. Learned counsel for the respondents has supported the findings of the Court below by submitting that before granting leave the Court has to consider the Interest of the trust so as to ensure that the trustees of public charities are not put to unnecessary harassment. In support of his contention. reference was made to the Full Bench decision of the Allahabad High Court In the case of "Uma Shanker v. Sallg Ram. , wherein It was observed in para 10 Inter alia that "in deciding whether to grant sanction or not. he has to consider the Interest of the trust and to ensure that the trustees of public charities are not put to unnecessary harassment by filing of vexatious suits by parties who may have ulterior motive In obtaining sanction."
18. The applicant-plaintiffs had also moved application (paper No. 82-C) before the Trial Court alleging therein that the opposite-parties have been committing 11-legalities/gross irregularities In the accounts of the Trust. They have prayed for Issue of a direction to the Court to furnish statement of accounts as detailed In the application. On the other hand, the opposite parties filed annexures No. 13 to 30 along with the affidavit of Dr. Pranav Pandya. which included the audit reports and Income tax returns of the preceding ten years of the Trust. The learned District Judge considered all these documents while passing the Impugned order. We have also gone through the entire record. In our view the learned District Judge rightly held that the audit reports etc. arc sufficient to falsify the contention of the applicants raised in the application 82-C. which too was rightly rejected by the impugned order. It is pertinent to note that O. P. respondent No.3 filed affidavit and along with the affidavit a number of documents were filed before the Trial Court. The learned Trial Court has dealt with the affidavit of Sri Pranav Pandya and the annexures filed therewith In detail in Its Impugned order as mentioned above. Moreover. from a close scrutiny of all these papers. It comes out that there is collusion between the appellants and respondent No.8 and the appellants are not the persons having any Interest In the aforesaid trust and the appellants and respondent No.8 are effectively affiliated with another trust. The learned Trial Court also came to the conclusion that from the documents on record It Is established that due to the certain differences between the applicants and O. P. No. 8 on the one hand and the respondents No, 1 to 7 on the other, the present application under Section 92 of the CPC was filed by the appellants. Considering the entire material In its entirety. we do not find any reason to take a different view from that of the view taken by the Trial Court.
19. For the reason and discussion aforesaid, we hold that the appellants are not the persons having any Interest in the trust in question. We also hold that the Intention of the appellants is not bona fide and that they have deserted the Trust and formed a sepa rate Trust prior to the filing of the application under Section 92 of the CPC. The appellants have failed to make out a case in their favour. No illegality or Infirmity was committed by the learned Trial Court in dismissing the application under Section 92 of the CPC (4-C) as well as application 82-r moved by them. The appeal therefore, deserves to the dismissed.
20. The appeal is hereby dismissed. The order under appeal dated 31-7-2001 Is up held. No order as to costs.