Madras High Court
M.G.Devasahayam vs Sir John D'Monte Trust on 19 August, 2011
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19-08-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN O.P.No.296 OF 2010 M.G.DEVASAHAYAM .. Petitioner vs. 1.Sir John D'Monte Trust Represented by its Sole Trustee The Arch Bishop of Madras-Mylapore, 41, Santhome High Road, Chennai-600 004. 2.Rt. Rev. A.M.Chinnappa Arch-Bishop of Madras-Mylapore, Archbishop's House, 41, Santhome High Road, Chennai-600 004. .. Respondents This original petition is filed under Section 3 of the Charitable and Religious Trust Act, 1920 for a direction to the respondents to provide to the petitioner with the information more fully described in Schedule 'A' to this petition and for the appointment of an independent Auditor to examine and audit the accounts of the respondents for the past 3 years from the date of this petition. For Petitioner : Mr.Mr.Karthik Seshadri for M/s.Iyer and Thomas. For Respondents : M.K.Kabir, Senior Counsel for Mr.M.Dhiraviyanathan O R D E R
This is a petition filed under Section 3 of the Charitable and Religious Trusts Act, 1920 (hereinafter referred to as the Act) seeking a direction to the first respondent - trust and the second respondent sole trustee to provide the information sought for by the petitioner listed in schedule A to the petition and also seeking a direction for the appointment of an independent auditor to examine and audit the accounts of the first respondent trust for a period of three years immediately preceding the date of petition.
2. I have heard Mr.Karthik Seshadri, for M/s.Iyer and Thomas, learned counsel for the petitioner and Mr.M.K.Kabir, learned Senior Counsel appearing for Mr.M.Dhiraviyanathan, learned counsel for the respondents.
3. By a last Will and Testament executed on 19.7.1820, one Mr.John D'Monte bequeathed all his fortunes in favour of various charitable institutions principally under the control and management of the Bishop or Vicar General of St.Thome. The Will also contains a direction to appoint and nominate annually a Committee of Syndics consisting of six pious and respectable persons. The testator also executed a Codicil on 25.4.1821. The said Will was probated on the file of the then Supreme Court of Judicature at Madras in the year 1827.
4. One of the properties owned by the said trust is a vast extent of land measuring approximately 180 grounds in Chamiers Road. The property is known as Benz Garden.
5. In the year 2002, the first respondent trust represented by its sole trustee filed OP.NOs.219 and 220 of 2002 under Section 7 of the Act, praying for sanctioning and approving an agreement of lease entered into by the trust with two institutions by name Holy Satellite Town Private Limited and Sathyabama Institute of Science and Technology. The petitioner herein, who is an ex-service man and a retired bureaucrat, attempted to intervene and oppose those petitions. Though the applications for impleading filed by the petitioner were dismissed, his opposition to the project was considered by this Court, on the basis that the petitioner is an interested person. Ultimately, the said petitions filed by the trust were dismissed by this Court. 6. After the dismissal of the said petitions, the petitioner came across the occupation of the property by the two institutions with whom the lease had been entered into. Therefore, the petitioner issued a notice dated 3.2.2007, to which the respondents sent an evasive reply on 25.2.2007. 7. Thereafter, the respondents entered into a Memorandum of Understanding on 12.11.2007 with a company by name Nitesh Estates Private Limited for the lease of the said property to them for a period of 66 years and for its development by the lessee. This information came to light when the proposed lessee company attempted to raise funds through public issues. It was found upon enquiry that the proposed lessee had also issued a disclaimer in the offer document filed with the Securities Exchange Board of India that it had not tied up the funding for financing the proposed project. However, the documents disclose that they had paid a sum of Rs.50 Million to the respondents under the Memorandum of Understanding. But, the details of the Memorandum of Understanding were not available.
8. It also came to light that the respondents entered into the agreement with several parties, one of whom instituted a suit in CS.No.501 of 2007 on the file of this Court. All these activities, shrouded in secrecy, has compelled the petitioner to come up with the above petition under Section 3 of the Act, for the reliefs referred to above.
9. The respondents have filed a counter to the main original petition contending inter alia
(i) that the petitioner is not "a person interested" within the meaning of Section 3 of the Act;
(ii) that since the petitioner is neither a trustee nor a beneficiary nor a person, who has contributed to the activities of the trust, he cannot be termed as a person interested;
(iii) that three persons had already instituted the suit in CS.NO.156 of 2002 on the file of this Court, claiming that they are members of a forum by name Forum for Catholic Unity;
(iv) that the leave granted by this Court to those three persons under Section 92 of the Civil Procedure Code was later revoked and the appeal filed by them was also dismissed by the Division Bench;
(v) that the issue is not pending in the Supreme Court;
(vi) that the petitioner herein is acting in tandem with one Mr.L.M.Menezes, who was one of the plaintiffs in the said suit;
(vii) that the said Mr.L.M.Menezes was a member of the committee constituted by the the Archbishop for developing one of the properties of the trust;
(viii) that the committee issued newspaper advertisements on 1.9.1996, inviting offers from project management consultants;
(ix) there was a good response to the newspaper advertisement by several companies, 12 of whom were shortlisted by the committee;
(x) that the petitioner herein represented one of the firms byname Infracon before the committee, but the proposal of the said company was not accepted;
(xi) that the petitioner's interest was thus commercial in nature and hence, he cannot be termed as a person interested;
(xii) that the petitioner prevented renovation of the Santhome Cathedral Basilica by filing petitions before the Chennai Metropolitan Development Authority and the Archeological Survey of India;
(xiii) that he also filed public interest litigation in this regard in WP.NO. 33355 of 2004, but the same was dismissed by an order dated 10.12.2004;
(xiv) that having failed in those attempts, the petitioner has come up with the above original petition;
(xv) that after filing the above original petition, the petitioner also invoked the provisions of the Right to Information Act before the Director of Exemptions under the Income Tax Act;
(xvi) that it is very peculiar that the petitioner is showing interest only in Benz Garden property;
(xvii) that even according to the petitioner, the letter dated 3.2.2007 was replied to on 25.2.2007 and after issuing a rejoinder dated 13.3.2007, the petitioner kept quiet for more than three years;
(xviii) that the observations contained in the order dismissing the earlier original petitions in OP.Nos.219 and 220 of 2002 would not make the petitioner a person interested;
(xix) that the respondents are under no obligation to disclose the terms of the Memorandum of Understanding dated 12.11.2007;
(xx) that as and when the Memorandum of Understanding materialises, the petitioner could come up with an application under Section 7 of the Act, at which point of time, he may take advantage of the caveat, which he had already filed;
(xxi) that the allegation that the affairs of the public charitable trust are not being conducted in a transparent manner is ill-founded;
(xxii) that public charities are entitled to protection both under Section 92 of the Code and under the Act, from being harassed from all and sundry; and (xxiii) that the prayer of the petitioner to go on a fishing expedition to extract information from the trust, cannot be entertained by this Court.
10. Both parties have not let in any evidence. However, both parties have filed certain documents, the truth and veracity of which are not in question. Therefore, in the light of the pleadings and the documents filed, the questions that fallfor consideration in the original petition are
(i) whether the petitioner can be construed as a person interested in the trust ? and
(ii) whether the petitioner is entitled, even if he is a person interested, to the directions sought for in the main original petition ?
PERSON INTERESTED :
11. As pointed out earlier, this is a petition filed under Section 3 of the Charitable and Religious Trusts Act. The Act was the culmination of a debate for over 50 years, on the efficacy of the Religious Endowments Act, 1868. The history of evolution of the Act is found in the statement of its objects and reasons, which read as follows :
"The Religious Endowments Act, 1868 (XX of 1863), was the result of the decision of the Government to divest its officers of all direct superintendence and control of religious and charitable endowments in India, transferring their functions to manager or managing committee and merely making provision for intervention by the Civil Courts on application made by any person interested in a particular institution. This policy, however, did not long remain unchallenged, and since 1866 there have been constant complaints, especially in the Madras Presidency, as to the inefficacy of the Act to prevent squandering or misappropriation of the funds of such endowments, and suggestions for its amendment have from time to time been made to the Government of India. Mr.Ananda Charlu in 1897, Mr.Srinivasa Rao in 1903 and Dr.(now Sir) Rash Behari Ghosh in 1908, for example promoted amending Bills, but none of them became law. More recently in 1911, a private Bill was introduced in Bombay Legislative Council by the Hon'ble Sir Ibrahim Rahimtoola, to provide for the registration of all charitable trusts, exceeding a certain value and for the annual audit of the accounts of such trusts by auditors approved by Government. Endowments of a purely religious nature were not included but the contents of the Bill made it clear that the ultimate object was to press for legislation for religious as well as secular trusts. About the same time a private Bill was promoted by two non-official members of the Madras Legislative Council to provide for the regular publication of the accounts of all religious endowments above a certain value and for their audit by an officer to be appointed by the District Judge. These proposals led the Government of India to reconsider the policy in force since 1863. In March 1914, the whole subject was discussed at a mixed conference of official and non official gentlemen representing the Hindu, Mohammadan, Sikh and Buddist communities. The present Bill, which is the outcome of the deliberations of that conference, has as its objects the simplification and cheapening of the legal processes by which persons interested can obtain information regarding the working of both religious and charitable trusts, and the exercise of a more efficient control over the action of the trustees. The Bill provides that any person interested in a trust may apply by petition to the District Judge for an order directing the trustee to furnish him with information as to the nature and objects of the trust and the value, condition, management and application of the subject matter of the trust, and of the income belonging thereto, or as to any of these matters, and also directing that the accounts of the trust shall be examined and audited. Failure to comply with such an order of the Court would be deemed a breach of trust."
12. The very preamble to the Act indicates three purposes for which the Act was enacted. They are (i) to provide facilities for obtaining information regarding trusts created for public purposes of charitable or religious nature; (ii) to enable the trustees of such trusts to obtain the direction of a Court on certain materials; and (iii) to make special provision for the payment of expenditure incurred in certain suits against the trustees of such trusts.
13. It is important to note that the provisions of the Act do not apply (i) to public trusts to which the provisions of the Bombay Public Trusts Act, 1950 apply; (ii) to the public trusts covered by the Rajasthan Public Trusts Act; (iii) to Hindu Religious and Charitable Institutions covered by the Andra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1966; and (iv) to institutions coming within the purview of the Tamilnadu Hindu Religious and Charitable Endowments Act, 1959.
14. Section 3 of the Act under which the present original petition is filed reads as follows :
"Power to apply to the Court in respect of trusts of a charitable or religious nature : Save as hereinafter provided in this Act, any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the Court within the local limits of whose jurisdiction any substantial part of the subject matter of the trust is situate to obtain an order embodying all or any of the following directions, namely :
(1) directing the trustee to furnish the petitioner through the Court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject matter of the trust, and of the income belonging thereto, or as to any of these matters, and (2) directing that the accounts of the trust shall be examined and audited.
Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition."
15. A reading of Section 3 shows that it not only enables a person who is interested in the Trust to apply to the Court, but also specifies the nature of reliefs that could be sought for by such a person. The person, who invokes Section 3 should be "a person having an interest in the trust." It is needless to point out that the trust in respect of which the application is made, should be a trust created or existing for a public purpose of a charitable or religious nature. It could be either an express trust or a constructive trust. The direction that could be sought under Section 3 are (i) to direct the trustee to furnish the particulars, such as to the nature and objects of the trust and of the value, condition, management and application of the subject matter of the trust and of the income belonging thereto; and (ii) to examine and audit the accounts of the trust. The proviso to Section 3 imposes a restriction in the nature of a limitation, to the effect that a direction in respect of the accounts relating to a period more than three years prior to the date of the petition cannot be sought for.
16. The procedure to be followed by the Court, upon a petition being presented under Section 3, is narrated in Section 5. Under Section 5(1), the Court should first consider whether the trust in question is a trust to which the Act applies. The Court should then consider whether the petitioner has an interest therein. It is only when these two conditions are satisfied that the Court should cause a notice to be served on the trustee, after fixing the date of hearing of the petition. If the trustee appears and makes a claim that there is no trust or that the Act does not apply to the trust, the Court should give an opportunity to such a person to institute a suit for declaration within three months. Till then, the proceedings are bound to be stayed. If, within three months, the person, who claims that there is no trust or that the Act does not apply to the trust in question, does not institute the suit, the Court shall proceed with the petition under Section 3. Section 7 of the Act enables the trustee of an express or a constructive trust to apply to the Court for its opinion, advice or direction on any question affecting the management or administration of the trust property.
17. Section 9 of the Act bars the filing of any petition under any of the provisions of the Act (i) if a suit instituted in accordance with the provisions of Section 92 of the Code is already pending; (ii) if the trust property is vested in the treasurer of charitable endowments or the Administrator General or the Official Trustee or on any society registered under the Societies Registration Act, 1860; or (iii) if a scheme for the administration of the trust property had been settled and approved by any Court of competent jurisdiction.
18. A reading of Section 3 of the Act shows that it has similarities to Section 92 of the Code, though there are also distinguishing features. While Section 3 of the Act can be invoked even by a single person having an interest, Section 92(1) of the Code can be invoked by two or more persons having an interest in the trust and that too, only after having obtained the leave of the Court. The purpose and object of Section 3 of the Act is merely to issue two kinds of directions, one for furnishing particulars such as the nature and objects of the trust, the value, condition, management and application of the subject matter of the trust and the other, for submitting the accounts of the trust for the purpose of examination and audit. However, the directions that could be issued under Section 92(1) of the Code are very elaborate and broad. This is why Section 9 bars a petition under the provisions of the Act, if a suit instituted under Section 92 of the Code is already pending.
19. Be that as it may, the expression "any person having an interest" appearing in Section 3 of the Act and the expression "two or more persons having interest in the trust" appearing in Section 92(1) of the Code cannot have different meanings or interpretations. Therefore, let us now have a look, at how the expression "person having interest in the trust" has been interpreted by the Courts. In Kannan Adityan & 4 Others Vs. Adityan & 6 Others [1996 (2) LW 364], a Division Bench of this Court considered all the decisions on the interpretation of the expression "person having an interest in the trust". The relevant portion of the said decision reads as follows :
"...the Section provides that the plaintiffs in a suit under Section 92, Code of Civil Procedure, must be persons having an interest in the Trust. Before 1887 the corresponding provision of law prevailing at that time required a direct interest in the Trust. The word "direct" was dropped in 1887 and thereafter the requirement was to have an interest. The words 'having an interest' have been subject matter of judicial consideration in several judgments. In T.R.Ramachandra Aiyar Parameswaran Unni (I.L.R.42 Madras 360), a Full Bench of this Court held that "interest" in Section 92, CPC denotes an interest which is present and substantial and not sentimental or remote or fictitious or purely illusory interest. In that case, a Hindu residing in Madras and another residing in Tellicherry instituted a suit in the District Court of North Malabar under Section 92, Civil Procedure Code, in respect of a Hindu temple situated in Tellicherry. It was found that the former had gone to worship in the temple on one or two occasions in the past and might go there to worship in the future if business took him to Tellicherry and he relied on his right as a Hindu to worship in the temple as entitling him to institute the suit. The majority held that though as a Hindu he might have the right to worship in the temple, he had not on that ground alone the 'interest' required by Section 92 of the Code to maintain the suit.
(iii) In Vaithianatha Aiyer Vs. S.Tyagaraja Aiyar {1921 (41) MLJ 20}, a Division Bench of this Court held that where the two plaintiffs instituting a suit under Section 92 of the Code of Civil Procedure are the descendants of the founder of the charity, they have an interest within the meaning of the said Section. The Bench observed that the fact that the plaintiffs belong to the family of the founder would naturally give them an interest in the family charity so as to enable them to bring a suit under Section 92 of the Civil Procedure Code. The Bench distinguished the judgment of the Full Bench in T.R.Ramachandra Ayyar's case (ILR 42 Madras 360 = (1919) 9 LW 492). The judgment of this Court was affirmed on appeal by the Privy Council in Vaidyanatha Ayar Vs Swaminathyya Ayyar (AIR 1924 P.C. 221(2) = (1924) 20 LW 803). The Judicial Committee held that the descendants in the female line from the founder of the charity have an 'interest' therein within the meaning of Section 92, Civil Procedure Code, although they may not directly obtain any benefit from it.
(iv) In Ramaswami Vs.Karumuthu (AIR 1957 Madras 597), a learned Single Judge of this Court held that a person who was a Hindu and was residing only three miles away, and had saved the trust properties from being sold away by a decree holder and had got the attachment released, and was a lessee in respect of the trust to be by being the highest bidder at an auction held by the Commissioner of Court, is a person vitally interested in the trust and its proper management.
(v) In Harnam Singh Vs. Gurdial Singh (AIR 1967 SC 1415), the residents of a village, where free food is served to visitors by an institution running a free kitchen, do not have any interest entitling them to file a suit under Section 92, Code of Civil Procedure. On the facts it was found by the Court that the institution was meant for Nirmala Sadhus and the plaintiffs as lambarders and followers of Sikh religion cannot be said to have an interest entitling them to file a suit as Nirmala Sadhus are not Sikhs.
(vi) In C.Kalahasti Vs. R.Sukhantharaj (1975 T.L.N.J.155 = (1975) 88 LW 57), a Division Bench of this Court held that old students of a College are persons having an interest in the trust which is in management of the College.
(vii) In Kumudavalli Vs. P.N.Purushotham (AIR 1978 Madras 205 = 91 LW 205), another Division Bench of this Court held that a resident of the locality, who has some nexus or connection with the trust in the sense that he has interest in its well being and prosperity can under certain circumstances be taken to be a person having an interest in the trust and in the cause of a public school, such presumptions could also be raised, if he is an old student of the school. The Bench said that if a fair inference could be drawn that a resident in the locality is subjectively interested in the well being of the school and, therefore, the trust, then such an interest would come within the meaning of the expression "having an interest" and cannot be held to be illusory or hypothetical. In that case, the Bench also held that a remote relationship through the female line by itself cannot be such an interest sufficient to lay an action under Section 92, CPC.
G.(i) In Jugul Kishore Vs. Shiam lal (AIR 1944 Allahabad 231), a Division Bench of that Court held that in cases of alleged mismanagement of public trust, the Advocate General should go into the question not only of the condition of the trust but also into the question of the bona fides of the would-be plaintiffs and of their capacity properly to represent the public on whose behalf they are purporting to sue.
(ii) In Mayer Simon Vs. Advocate General, Kerala (AIR 1975 Kerala 57), to which we have made a reference earlier, the Court held that a consent under Section 92, Code of Civil Procedure, could be refused by the Advocate-General for all or one of the following reasons :
(1) the persons approaching the Advocate General may not have sufficient interest; (2) their motives may not be pure;
(3) they may not be solvent;
(4) there may be no breach of trust; and (5) direction of the Court may not be deemed necessary.
With respect, we are unable to agree with the Full Bench as regards the third reason set out above."
20. The decision of the Full Bench of this Court in T.R.Ramachandra Iyer Vs. Parameswaran Unni [ILR 42 Madras 360] and the decision of the Division Bench in Vaidyanatha Iyer Vs. Swaminatha Iyer [AIR 1924 PC 221(2)] were both referred to by the Supreme Court in Harnam Singh Vs. Gurdial Singh [AIR 1967 SC 1415]. While doing so, the Supreme Court cited the opinion expressed by Sir.John Wallis, CJ (which led to a reference to the Full Bench in T.R.Ramachandra Iyer). It reads as follows :
"They agree with Sir.John Wallis that the bare possibility, however remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust appears to defeat the object with which the Legislature inserted these words in the section. That object was to prevent people interfering by virtue of this section in the administration of charitable trusts merely in the interests of others and without any real interest of their own"
21. Keeping the above particulars in kind, if we have a look at the facts of the case, it is seen from the averments contained in the main petition that the petitioner was (i) a Commissioned Officer in the Indian Army, who had participated in the Indo Pakistan war in 1965 and in the Anti Insurgency Operations in Nagaland; (ii) a Civil Servant, who had functioned as the Collector of two districts in Punjab and Haryana; (iii) the Vice President of the Red Cross and President of St.John Ambulance Association; (iv) associated with the Missionaries of Charity, run by Mother Terasa; (v) a Member of the Executive Committee of Spastic Society of Tamilnadu; and (vi) the Convener of Forum for Catholic Unity. He claims to have an interest in the trust, by virtue of being a Catholic Christian and a responsible citizen, concerned about the manner in which the trust in question is being administered.
22. More over, when the petitions filed by the second respondent sole trustee in OP.Nos.219 and 220 of 2002 seeking sanction and approval of two lease deeds came up for hearing, the petitioner had filed an application in A.NO. 748 of 2004, seeking to implead himself as a party to the main original petition. A few other persons also filed similar applications for impleadment. The applications for impleadment were taken up along with OP.Nos.219 and 220 of 2002. By a common order dated 6.3.2006, this Court dismissed OP.Nos.219 and 220 of 2002. However, the persons, who sought to implead themselves as parties, were heard on the ground that though they were not necessary parties, they were parties interested. Paragraph 16 of the said order reads as follows :
"In so far as the applicants referred to above seeking to implead them as parties, this Court is of the considered opinion that they need not be impleaded as parties. To determine whether a party is a necessary party or not, the tests to be applied are (i) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; and (ii) no effective decree can be passed in the absence of such party. Applying these tests, the Court can well state that the applicants before this Court cannot be termed as necessary parties to the proceedings. At the same time, it cannot be stated that they are not interested parties. In the opinion of the Court, they are parties interested. It is not a fact in dispute that they belonged to the same faith, and the properties originally belonged to Sir John De Monte, and a Will and a Codicil have also been executed by him, and the testator has created a trust, and the properties should come to the hands of the Church, and it is for the betterment of the poor and downtrodden. Once they belong to a particular faith and become members of the Church, the Court is of the considered opinion that they are parties interested, and hence, they have got to be heard. Hence, they are heard and their contentions would stand as recorded above. Application Nos.747, 748, 1025, 1026, 1167 and 1168 of 2004 are disposed of accordingly."
23. The above order of the learned Judge attained finality. Therefore, it is contended by the learned counsel for the petitioner that the question as to whether the petitioner is a person having an interest in the trust or not has already attained finality and that therefore, the locus standi of the petitioner cannot be entertained.
24. Per contra, learned Senior Counsel appearing on behalf of the respondents relied upon the decision of the Division Bench of this Court in L.M.Menezes & Others Vs. Rt.Rev.Dr.Lawrence Pius and Others [2004 (1) LW 133], wherein the order of the learned Single Judge revoking the leave granted under Section 92(1) of the Code in favour of Mr.L.M.Menezes and others was upheld by the Division Bench. While doing so, the Division Bench found that they cannot be considered as persons interested in the trust. But, the said decision, as seen from paragraph 26, was rendered primarily on the basis (i) that there were no allegations in the plaint of any mismanagement; (ii) that the prayers made in the plaint were very luxurious in nature; (iii) that the successive Archbishops, who managed the properties of the trust were not indicted in the plaint; and (iv) that the plaint averments indicated that the suit was filed only to harass the trust.
25. But, as I have pointed out earlier, the purport of Section 92 of the Code is a shade different from Section 3 of the Charitable and Religious Trusts Act. To invoke Section 92(1) of the Code, there are several pre-requisites namely (i) that the persons approaching the Court should have an interest in the trust; (ii) that they must have obtained a leave; and (iii) that there must be an allegation of breach of trust or the necessity to seek a direction for the administration of the trust. But, in the case of a petition under Section 3 of the Act, the requirement to obtain leave is absent and the requirement either to make an allegation of breach of trust or to seek a direction for the administration of the trust, is also absent. The relief that could be sought under Section 3 of the Act does not include the relief of framing a scheme for the administration of the Trust. As a matter of fact, a careful reading of Section 3 together with Section 6 of the Act, would reveal that a trustee would be deemed to have committed a breach of trust, if he failed to comply with any direction issued by the Court under Section 5(5) of the Act.
26. Therefore, it appears that the proceedings under Section 3 of the Act could be termed as a seed, from which the cause of action for initiating the proceedings under Section 92 of the Code may (may not) actually sprout. In other words, even a person, who is unable to make any concrete allegation of breach of trust against the trutees of a public trust, so as to be entitled to a leave under Section 92(1) of the Code, may be entitled to proceed under Section 3 of the Act and get an order under Section 5(5) and thereafter raise the deeming fiction contained in Section 6. Therefore, the rigidity of or the iron frame within which Section 92(1) of the Code is encompassed, cannot per se be imported to Section 3 of the Act. This is in view of the fact that the provisions of Charitable and Religious Trusts Act, 1920 are created in such a manner as to lead to a cause of action for initiating a proceeding under Section 92(1) of the Code.
27. Therefore, (i) in view of the finding already recorded in the order dated 6.3.2006 in A.NO.748 of 2004 in OP.Nos.219 and 220 of 2002; and (ii) also in view of the marked distinction between the provisions of the Charitable and Religious Trusts Act and Section 92(1) of the Code, I am of the view that the petitioner will certainly fall within the definition of the expression "any person having an interest in the trust". I am constrained to take such a view, for one more reasons namely that the expression used in Section 3 of the Act is "any person". The word "any" signifies an unrestricted reference. Black's Law Dictionary states that the word "any" has the following meaning :
"some, one of many, an indefinite number, one indiscriminately of whatever kind or quantity."
The word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and subject matter of the statute. It is often synonymous with "either", "every" or "all". Its generality may be restricted by the context. In the Act in question, the only restriction placed on the generality of the word "all" is that he must be a person having an interest in the trust. Therefore, on the first issue, I hold that the petitioner is a person having an interest in the trust.
28. Therefore, the next question to be decided is as to whether the petitioner is entitled to a direction as sought for.
29. As pointed out earlier, Section 9(a) of the Charitable and Religious Trusts Act, 1920, prohibits this Court from entertaining any petition under the Act, in relation to any Trust, if a suit instituted in accordance with the provisions of Section 92, CPC, is pending in respect of the Trust in question. There is no dispute about the fact that this Court had granted leave under Section 92, CPC, to three persons, viz., L.M.Menezes and others, to institute a suit for framing a Scheme for the administration of the Trust in question. In pursuance of the leave so granted, those three persons instituted C.S.No.156 of 2002. However, the first respondent filed an application for revocation of leave. The leave was later revoked and the appeal filed against the revocation of leave, in OSA Nos.83 of 2003 was dismissed by the Division Bench. Therefore, those three plaintiffs filed an appeal in the Supreme Court. In SLP (Civil) No.5093 of 2004, the Hon'ble Supreme Court issued notice on 22.3.2004. The Supreme Court also restrained this Court from passing final orders in the proceedings in O.P.Nos.219 and 220 of 2002. Subsequently, the Supreme Court passed an order on 03.12.2004, directing this Court to pass final orders in O.P.Nos.219 and 220 of 2002. Thereafter, the Special Leave Petition has not been taken up for hearing.
30. Therefore, it is clear that if the appeal filed by L.M.Menezes and others is ultimately allowed by the Supreme Court, the civil suit, C.S.No.156 of 2002 will get restored. If it gets restored, I am barred from entertaining this petition, in view of Section 9(a) of the Charitable and Religious Trusts Act. If the appeal is dismissed by the Supreme Court, the order of revocation of leave would stand and there would be no bar for me to order this application.
31. But the question that I am now confronted with, is as to whether the mere pendency of a Special Leave Petition, against an order revoking the leave under Section 92, CPC, without even a stay of the order of revocation, could be taken to be a bar under Section 9 or not. In the normal variety of cases, there would be no difficulty in coming to the conclusion that the suit cannot be taken to be pending, once the leave under Section 92 is revoked and there is no stay of the order revoking the leave. But, the case on hand cannot be categorised as one among the many run-of-the-mill cases. The reason is that the provisions of the Charitable and Religious Trusts Act appear to provide a curtain raiser, to a suit under Section 92, CPC. If an order is passed under this Act and the same is not complied with, a cause of action arises, in terms of Section 6, for initiating an action under Section 92, CPC. As pointed out earlier, Section 6 creates a deeming fiction by holding that a Trustee who fails to comply with an order under Section 5(5), would be deemed to have committed a breach of trust, affording a ground for a suit under Section 92, CPC. Section 6 does not stop with that. It goes a step further. It says that if the Trustee fails to comply with an order passed under Section 5(5), leading to the creation of a deeming fiction, a suit under Section 92, CPC, can be filed even without the previous consent of the Advocate General. It is relevant to note here that at the time when the Charitable and Religious Trusts Act, 1920, was passed, Section 92, CPC, remained unamended. Therefore, at that time, the previous consent of the Advocate General was necessary to institute a suit under Section 92, CPC. This essential requirement itself was dispensed with by Section 6 of the Charitable and Religious Trusts Act, if there was a failure on the part of the Trustee to comply with an order under Section 5(5). Therefore, it is crystal clear that an order passed in terms of this 1920 Act and the consequences thereof, cannot be taken very lightly.
32. It is in the light of such a strict mandate of this Act that I have to consider the question as to whether the pendency of the Special Leave Petition, would amount to the pendency of the suit. But for Section 6 of the Charitable and Religious Trusts Act, 1920, I would have had no difficulty in concluding, without a blink of my eye, that the suit under Section 92, CPC, cannot be considered to be pending.
33. In Dayavati v. Inderjit [AIR 1966 SC 1423], a question arose as to whether the provisions of the Punjab Relief of Indebtedness Act, which were made applicable only to suits pending on or instituted after the commencement of the Act, would also apply to a case where a decree had already been passed. After taking note of the generally well settled proposition of law that a new law ought to be only prospective and not retrospective in its operation, the Supreme Court also took note of the distinction between laws affecting procedure and those affecting vested rights. Thereafter, the Supreme Court took up for consideration, the question as to whether the suit could be said to have been pending, on the date on which the law came into force, despite the fact that a decree had already been passed and the matter was pending in appeal. While answering the question in the affirmative, the Supreme Court held in paragraph 10 of the report as follows:
"The only difference between a suit and an appeal is this that an appeal only reviews and corrects the proceedings in a cause already constituted, but does not create the cause. As it is intended to interfere in the cause by its means, it is a part of it and in connection with some matters and some statutes, it is said that an appeal is a continuation of a suit. In the present Act, the intention is to give a relief in respect of excessive interest in a suit which is pending and a preliminary decree in a suit of this kind does not terminate the suit. The appeal is a part of the cause, because the preliminary decree which emerges from the appeal will be the decree which can become a final decree. Such an appeal cannot have an independent existence. If this be not accepted, for the purpose of the application of Section 3 of the Usurious Loans Act, curious results will follow. The appeal Court in the appeal is not able to resort to the Section, but if the suit were remanded, the trial Court would be compelled to apply it. For although, in the appeal proper, that judgment must be rendered which could be rendered by the Court of trial, but if the suit is to be re-heard, then the judgment must be given on the existing State of the law and that must include Section 5 by reason of Section 6 of the Punjab Relief of Indebtedness Act. It is hardly to be suggested that this obvious anomoly was allowed to exist. It would therefore appear that in speaking of a pending suit, the legislature was thinking not only in terms of the suit proper, but also those stages in the light of the suit which ordinarily take place before a final executable document comes into existence. The words of the Section we are concerned with, speak of a suit pending on the commencement of the Act and it means a live suit whether in the Court of first instance or in an appeal Court where the judgment of the Court of first instance is being considered. It only excludes those suits in which nothing further needs to be done in relation to the rights or claims litigated, because an executable decree which may not be reopened is already in existence."
34. A careful reading of the portion of the judgment of the Supreme Court extracted above, would show that for interpreting the expression "suit pending", the Supreme Court applied three fundamental principles. They are (i) an appeal is a continuation of the suit, since it is intended to interfere in the original cause; (ii) it is possible for an appellate Court to remand the matter back to the trial Court, in which event, the suit would become pending; and (iii) the expression "suit pending" should be construed to indicate all the stages in the life of a suit, before a final executable document comes into existence.
35. I am conscious of the fact that with the revocation of the leave originally granted under Section 92, CPC, the suit C.S.No.156 of 2002, actually got terminated. But, such termination of the suit, has not attained finality, in view of the fact that the Supreme Court has issued notice in the Special Leave Petition arising out of the revocation of leave. In the ultimate event of the Special Leave Petition being allowed, the suit C.S.No.156 of 2002 instituted under Section 92, CPC, would come back to life. Once it comes back to life, further proceedings in the suit will commence, from the stage at which they got terminated earlier. At that time, the bar under Section 9 of the Charitable and Religious Trusts Act, 1920, would automatically come into operation. But, in the meantime, if I allow the above petition and issue a direction as prayed for and a fresh suit under Section 92, CPC, is instituted, by invoking the deeming fiction under Section 6, the respondent would be forced to face two suits under Section 92, CPC. The long line of authorities under Section 92, CPC, suggest that a public Trust ought not to be harassed by a multiplicity of suits.
36. Therefore, I am of the considered view that in the case on hand, the pendency of the Special Leave Petition, arising out of the revocation of the leave under Section 92, CPC, should be considered to have the same effect as that of the pendency of the suit. At the most, the termination of the suit, as a consequence of the revocation of the leave, should be held to be equivalent to a clinical death. But, the formal declaration of death should await the outcome of the Special Leave Petition, since there is still some chance, for the revival of the cause which formed the basis for C.S.No.156 of 2002.
37. Therefore, despite the fact that the petitioner herein is a person having an interest in the Trust, within the meaning of Section 3 of the Charitable and Religious Trusts Act, 1920, I cannot issue a direction as prayed for, in view of the pendency of the Special Leave Petition, SLP (Civil) No.5093 of 2004 and in the light of the bar under Section 9(a) of the Act. Therefore, this original petition is dismissed. However, I make it clear that if the Special Leave Petition is dismissed, it will be open to the petitioner to come up once again with a petition under Section 3 of the Act. There will be no order as to costs.
Index : Yes 19.08.2011.
Internet : Yes
RS/kpl/Svn
V.RAMASUBRAMANIAN,J
RS/kpl/Svn
Order in
OP.No.296 of 2010
19.08.2011