Madras High Court
Sri Nandhanam Educational And vs N.Vijayalakshmi on 19 March, 2019
Author: C.Saravanan
Bench: C.Saravanan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On 18.03.2019
Pronounced On 19.03.2019
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.R.P.(PD).No.1120 of 2014
and
M.P.No.1 of 2014
Sri Nandhanam Educational and
Social Welfare Trust represented
by its Chairman,
P.M.N.Mohan Krishnaa,
Molagarampatti,
Tirupattur. ... Petitioner
Vs.
1.N.Vijayalakshmi
2.P.N.Sankar
3.P.M.M.Nandagopal (died)
4.P.N.Saravanan
5.V.N.S.Aruna Janaki Devi ... Respondents
PRAYER: Civil Revision petition is filed under Article 227 of the
Constitution of India, to set aside the order of the Principal District Munsif
Court, Ambur, Vellore District dated 18.12.2012 and allow the I.A.No.276
of 2012 in O.S.No.176 of 2011.
http://www.judis.nic.in
2
For Petitioner : Mr.G.Sankaran
For Respondents : Mr.P.K.Harinathbabu
ORDER
The present Civil Revision Petition has been filed against the fair and decreetal order in I.A.No.276 of 2012 in O.S.No.176 of 2011 dated 18.12.2012 on the file of the Principal District Munsif Court, Ambur, Vellore District.
2.The said I.A was filed by the petitioner who is the second defendant in the said suit under Order 7 Rule 11(d) and Section 151 of CPC to reject the plaint on the ground that the suit to be barred under law in view of Section 92 of CPC.
3.The suit was filed by the Trust represented by one of its trustees namely Vijaylakshmi and P.N.Shankar the respondents herein to declare that certain documents of the trust as null and void.
4.The suit has been filed for the following relief:-
(a)Declaring the Document No.539/2007, dated 20.06.2007 on the file of Sub Registrar, Tirupattur as null and void so far as the plaintiffs http://www.judis.nic.in are concerned.3
(b)Declaring the Doucment No.540/07, dated 20.06.2007 on the file of the Sub Registrar, Tirupattur as null and void so far as the plaintiffs are concerned.
(c)Declaring the Document No.1124/08 dated 14.07.2008 on the file of the Sub Registrar, Tirupattur as null and void so far as the plaintiffs are concerned.
(d)And to grant permanent injunction restraining the defendants from in any way interfering the peaceful functioning of the plaintiffs as trustees of the Sri Nandhanam Educational and Social Welfare Trust.
5.The petitioner/second defendant filed above I.A also in the capacity as the Chairman of the Trust by naming the respondents/plaintiffs 1 and 2 as individuals.
6.The Lower court after considering the arguments advanced on behalf of the both sides concluded that though the suit pertains to public trust, dispute was a private dispute between the trustees and therefore the suit was maintainable. It held that Section 92 of CPC was not applicable to the facts of the case.
http://www.judis.nic.in 4
7.The petition filed under Order 7 Rule 11(d) of CPC, stated that the suit was barred under Section 92 of CPC as any dispute relating to removing any trustee or appointing a new trustee or vesting any property in a trustee or directing a trustee who has been removed or a person who has ceased to be a trustee to deliver possession of any trust property has to be in accordance with the provisions under Section 92 of CPC.
8.The lower after referring to several decisions has ultimately concluded that the suit has been filed only to vindicate individual rights in the trust and therefore, there is no question invoking Section 92 of CPC.
9.The Court further observed that though the plaint appears to be defective particularly the pleading and the cause title are appeared to be mutually destructive but was rectifiable one. The lower court declined to allow the application filed under Order 7 Rule 11(d) of CPC for rejecting the plaint. Since the plaint was instituted by the individual not by the trust
10.The learned counsel for the petitioner and respondents made elaborate submissions on merits.
11.The learned counsel for the petitioner/second defendant relied on the decision of this court Managing Trustee vs Haja Noordeen Sahib 2018 (3) CTC 801 wherein it was held as under:-
http://www.judis.nic.in 5 “Sec.92 CPC, provides for (i) cases of breach of trust; and (b) cases where direction of the Court is deemed necessary. 'Breach' in the context of Sec.92, C.P.C., means breach of terms of any express or constructive public religious or charitable trusts that necessitates the vindication of public interest involved in the administration of such trusts. And, the need for removal of a trustee or appointment of a new trustee shall be contextually understood and the provision shall not be invoked de hors any breach of trust or absence of any public interest. This is a prerequisite to justify an action under Sec.92 but not otherwise. Surely it cannot include instances where parties seek to vindicate their personal or private right such as their rival claim to an office. Right to hold an office of a trustee is a private right merely even if the creation of the office is traceable to a trust deed or to a scheme settled by Court.”
12.The learned counsel for the respondents/ plaintiffs referred the decision of the Honourable Supreme Court in Vidyodaya Trust vs Mohan Prasad R & Others. The Court therefore held in paragraph-10 is here under:-
“10. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public Trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the court is http://www.judis.nic.in necessary for the administration of the trust and the 6 plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the court for proper administration of the trust, the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92 (see N. Shanmukham Chetty v. V.M. Govinda Chetty, Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga, Sugra Bibi v. Hazi Kummu Mia and Mulla: Civil Procedure Code (13th edn.) Vol. 1, p.
400). A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section.
It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights, and in deciding whether a suit falls within Section 92 the court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92.”
13.I have considered rival submissions advanced. The law on the subject is clear. A suit under Section 92 of CPC is a representative suit for enforcing the rights of the beneficiaries of the public and charitable Trust for setting right the actions which amount to breach of trust.
http://www.judis.nic.in Whether or not a person is validly appointed as trustee and should 7 be removed as a trustee or whether a person is or is not a Chairman, or other inter se disputes between trustees are not such the subject matter of a suit to be instituted under Section 92 CPC.
14.As per the decision of the Hon'ble Supreme Court in Vidyodaya Trust vs Mohan Prasad R & Others supra if the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92.
15.This view has been also followed the High Court of Delhi in S.S.Gurcharan Singh vs Mota Singh (Nila) & Ors. In RFA No.494/2005 on 18.04.2012.
16.In this case, though dispute relates to a public trust, nevertheless it is between the members of the same family in a trust founded by the first respondent and her late husband P.M.M.Nadagopal. The petitioner is their son.
17.Thus, it is evident that suit is relating to a power struggle and inter se dispute between the trustees and members of the same family. It is not for espousing the rights of the public in the Trust. Therefore, I do http://www.judis.nic.in 8 not find any merits to interfere with the impugned order of the lower Court.
18.Consequently, the present Civil Revision Petition is dismissed. Therefore, the lower Court shall proceed to dispose the suit on merits without getting influence by the observation made in this order.
19.Since the suit is of the year 2008. The lower Court is directed to dispose the suit within a period of six months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petition is closed.
19.03.2019 Index :Yes/No Internet :Yes/No jen
1.Principal District Munsif Court, Ambur, Vellore District.
2.The Section Officer, VR Section, High Court, Madras.
http://www.judis.nic.in 9 C.SARAVANAN, J.
jen Pre-delivery order in C.R.P.(PD).No.1120 of 2014 and M.P.No.1 of 2014 19.03.2019 http://www.judis.nic.in