Delhi District Court
Sh. Gagan Gandhi & Anr. vs . The Govt. Of Nct Of Delhi & Ors. on 24 December, 2022
SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
IN THE COURT OF DINESH KUMAR,
ADDITIONAL DISTRICT JUDGE02, SOUTH
SAKET COURTS COMPLEX, SAKET, NEW DELHI
CS DJ No. 68/2020
Filing No. 714/2020
CNR number: DLST010011362020
In the matter of:
1. Sh. Gagan Gandhi
S/o Late Sh. S.K. Gandhi
Ch.No. 103, New Lawyers Chamber
C.K. Daphtary Block, Supreme Court of India,
New Delhi 110001
2. Smt. Amarjeet Kaur
W/o Late Sh. S.K. Gandhi
R/o H74, Kirti Nagar,
New Delhi 110015
......Applicants / Plaintiffs
Versus
1. The Govt. of NCT of Delhi
Through Its Chief Secretary
AWing, 5th Floor, Delhi Secretariat,
New Delhi - 110013
2. Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
3. Sh. S.N. Dhingra
Chairman,
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
CS DJ No. 68/2020
CNR No.: DLST01-001136-2020
Page 1 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022
SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
4. Sh. S.N. Kalra
Managing Trustee
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
5. Sh. Griraj Dhingra
Trustee
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
6. Sh. Om Prakash Kalra
Trustee
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
7. Sh. Harvinder Singh
Trustee
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
8. Sh. Balbir Singh
Trustee
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
9. Sh. P.N. Bhardwaj
Trustee
Justice Gopal Singh Public Charitable Trust
A10, Niti Bagh, New Delhi - 110049
...Respondents
Date of Hearing the arguments : 17.12.2022
Date of pronouncement of the order : 24.12.2022
CS DJ No. 68/2020
CNR No.: DLST01-001136-2020
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SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
APPLICATION ON BEHALF OF THE PLAINTIFFS UNDER
SECTION 92 R/W SECTION 151 OF CPC FOR
APPOINTMENT OF THE TRUSTEE IN JUSTICE GOPAL
SINGH PUBLIC CHARITABLE TRUST.
ORDER
1. Vide this order, I shall dispose of an application under Section 92 of the Code of Civil Procedure (hereinafter referred to as 'CPC') filed by the applicants / plaintiffs.
2. It is stated in the application that the plaintiffs want to file the present suit under Section 92 CPC. The present application has been moved seeking permission of the Court to institute a suit for appointment of plaintiff no. 1 as a trustee of Justice Gopal Singh Public Charitable Trust situated at A10, Niti Bagh, New Delhi. The plaintiff No. 2 is stated to be the niece of Late Justice Gopal Singh who was founder of the trust. The plaintiff no. 1 is the son of plaintiff no. 2.
3. It is stated that the above mentioned trust was set up by Late Justice Gopal Singh in respect of the estate by executing a registered trust deed dated 11.10.1973. Late Justice Gopal Singh died on 15.09.1977. During his CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 3 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
lifetime he had appointed himself as the sole trustee of the trust. After the death of Justice Gopal Singh, petition under section 92 of the CPC was filed by legal heirs bearing Trust Act Case No. 7/1982 titled as Sh. Sant Singh & Ors. Vs. State in respect of the appointment of trustees of the trust. Sh. M.A. Khan, Ld. District Judge, Delhi has appointed following trustees vide judgment dated 22.12.1999 i.e. Sh. Amir Singh S/o Late Sh. Lal Chand, Sh. S.N. Kalra S/o Late Smt. Sohan Bai, Smt. Shanti Devi D/o Late Sh. Sant Singh, Sant Tirath Singh Ji of Tikana Bhai Tagat Ji Saheb, Guniana Mandi, Bhatinda, President of Niti Bagh Welfare Association, New Delhi, President of All India Mianwali Association, Gurgaon and Sh. T.S. Oberoi, Retired Judicial Member of CAT, New Delhi. Smt. Shanti Devi passed away in the year 2017 and since then there is no representative from the family of Late Sant Singh in the said trust.
4. The plaintiff no. 2 is the daughter of Late Sant Singh. She has been invited to participate in the meetings of the trust on various occasions. The plaintiff no. 2 had written a letter dated 03.11.2019 to the Board of Trustee and expressed her willingness to make contribution in the process of realization of the noble and pious vision of Late CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 4 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
Justice Gopal Gandhi. The plaintiff no. 1 was invited as a special invitee in the meeting of the trust vide letter no. JGSCT/913 dated 12.01.2010, JGSCT/820 dated 04.08.2009, 05.12.2009, Letter No. JGSPCT/1012 dated 18.05.2010 and Minutes of Meeting dated 15.11.2009 to the Justice Gopal Singh Public Charitable Trust and assisted Plaintiff No. 2 in starting the Matrimonial services. Copy of Letter No. JGSCT/913 dated 12.01.2010, letter no. JGSCT/820 dated 04.08.2009, 05.12.2009, letter no. JGSPCT/1012 dated 18.05.2010 and minutes of meeting dated 15.11.2009 respectively.
5. After resignation of Smt. Shanti Devi from the Boards of Trustees from the above said trust, there is no representative from the family of Sh. Sant Singh in the above said trust. The plaintiff no. 2 due to her health condition is not in a position to discharge her role as a trustee to the aforementioned trust. The plaintiff no. 1 is interested in being appointed as trustee in order to take forward the aims and objectives of the founder trustee. He had sent a letter dated 10.12.2019 to the Managing Director of the trust for his appointment as trustee in the trust. No reply was received. The plaintiff sent reminder dated 30.12.2019 to the Chairman, Vice Chairman and CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 5 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
the Managing Trustee of the Trust. No reply was received. Hence, the present application has been filed seeking permission to institute the suit for appointment of plaintiff no. 1 as trustee in the trust.
6. The matter has been argued by the applicant no. 1 in person who has stated that the applicants have got a primafacie case and they are likely to succeed. A great prejudice shall be caused to the plaintiffs if the application is not allowed by the Court. Balance of convenience also lies in their favour. Hence it is prayed that present application may be allowed and the plaintiff may be permitted to institute a suit for the appointment of trustee in the Justice Gopal Singh Public Charitable Trust.
7. Reply to the application has been filed. It is stated in the reply that the application is not maintainable. As per the averments in the plaint, it is clear that the plaintiff are not suing to vindicate rights of the public. The present suit and the application have been filed by the plaintiffs / applicants seeking personal reliefs and seeking vindication of alleged individual rights and not as representatives of the public. Therefore, the suit as framed is not maintainable under Section 92 of CPC. The present application and the suit has not been instituted CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 6 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
either by Advocate General or 2 or more persons having an interest in the Public Charitable Trust. It is only a trustee or Manager of the trustee that can bring such a suit. No cause of action has arisen to file the present application. There are already 7 trustees of the trust as per the judgment of the Court which are respondents no. 3 to 9. Hence it is prayed that the application may be dismissed.
8. The applicant no. 1 who is an Advocate by profession would argue that the plaintiffs / applicants are not vindicating any personal rights. They have been enforcing the public rights to manage the affairs of the trust as per law. It has been argued on behalf of the plaintiffs that as per the judgment of Sh. M.A. Khan there had to be 7 members of the trust including 3 members from the family / relatives of Justice Gopal Singh. Therefore, 3 members were appointed as trustee. After retirement of Smt. Shanti Devi, there is no representative from her family and therefore, the plaintiffs want to enforce public rights so that the trust is maintained as per the directions of the Court of Sh. M.A. Khan, District Judge, Delhi vide judgment dated 22.12.1999. Ld. Counsel for the plaintiffs has relied upon judgments titled CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 7 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
Jamia Masjid Vs. K.V. Rudrappa by LRs & Ors. (2021) SCC Online SC 792, Ashok Kumar Gupta & Anr. Vs. Sitalaxmi Sahuwala Medical Trust & Ors. (2020) 4 SCC 321, B.S. Adityan & Ors. Vs. B. Ramachandran Adityan & Ors. (2004) 9 SCC 720, R.M. Narayana Chettiar & Anr. Vs. N. Lakshmanan Chettiar & Ors. (1991) 1 SCC 48, Ambrish Kumar Singh Vs. Raja Bran Bramhshan (1988) SCC Online 104, Swami Paramatmanand Saraswati & Anr. Vs. Ramji Tripathi & Anr. (1974) 2 SCC 695, Sugra Bibi Vs. Hazi Kummu Mia (1969) 3 SCR 83 and Bishwanath Vs. Radha Ballabhji (1967) 2 SCR 618.
9. Ld. Counsel for the respondents no. 1 to 3 and 5 to 9, on the other hand, would argue that the plaintiffs / applicants want to vindicate their personal rights in the garb of the present application and the suit. Hence, it is prayed that the application may be dismissed. Ld. Counsel has relied upon the judgments titled Bhopinder Singh Vs. Joginder Singh Civil Appeal No(s) 6067/2010, Vidyodaya Trust Vs. Mohan Prasad R & Ors. Appeal (Civil) 1633/2008, Ashok Kumar Gupta & Anr. Vs. Sitalaxmi Sahuwala Medical Trust & Ors. Civil Appeal No. 1917/2020 and B.S. Adityan & Ors. Vs. B. Ramachandran Adityan & Ors. Civil Appeals Nos. 1291520/1996.
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10. I have heard the rival submissions and perused the material on record.
11. Section 92 of the CPC provides provision for filing of a suit in representative capacity. The section reads as under :
"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 AdvocateGeneral, or two or more persons having an interest in the trust and having obtained the 2 [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 subjectmatter of the trust is situate to obtain a decree:
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
3 [(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.
"xxx
12. Section 92 (1) provides for 2 classes of cases i.e. 1) where there is a breach of trust in a trust created for public CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 9 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
purposes of a charitable or religious nature, and 2) where the directions of the Court is deemed necessary for the administration of any such trust. The Section provides that such a suit can be filed either by the Advocate General or by 2 or more persons having an interest in the trust and having obtained the leave of the Court. Further, the relief to be sought in such a suit are mentioned in the Section itself as mentioned hereinabove. Hon'ble Supreme Court of India in Bishwanath Vs. Radha Ballabhji (1967) 2 SCR 618 has held that to invoke Section 92 of the Code of Civil Procedure, three conditions have to be satisfied namely 1) the trust is created for public purposes of a charitable or religious nature, 2) there was a breach of trust or a direction of Court is necessary in the administration of such a trust, and 3) the relief claimed is one or other of the reliefs enumerated therein. It has been held that if any of the three conditions is not satisfied, the suit falls outside the scope of said Section.
13. Further, Hon'ble Supreme Court of India in judgment titled Sugra Bibi Vs. Hazi Kammu Mia AIR 1969 SC 884 has held that even if the suit relates to public trust of a religious or charitable nature and the reliefs claims fall within clauses (a to h) of Section 92 (1) of the CPC, the operation of the Section would not be attracted unless the suit is of a representative CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 10 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
character instituted in the interest of the public and not merely for vindication of the individual or personal rights of the plaintiff.
14. In the present application, admittedly, the trust is a trust created for public purposes of a charitable or religious nature. The applicants have made allegations of breach of the trust by stating that the appointment of the trustees in the trust is not as per the judgment dated 22.12.1999. It has been argued that vide judgment dated 22.12.1999, Ld. ADJ had directed appointment of one representative from the family of Late Sh. Sant Singh as trustee. However, at present, there is no representation from the family of Late Sant Singh after resignation by Late Smt. Shanti Devi. Therefore, the applicants had given representation for the appointment of trustee in the trust. However, no reply has been given. It is argued that the present board of trustee of the respondent trust is not in accordance with the judgment dated 22.12.1999. It has been argued that the judgment dated 22.12.1999 has attained finality and any interpretation contrary to the same would tantamount to readjudication of the issues which is barred by the principle of resjudicata. The respondents who were appointed in lieu of the judgment dated 22.12.1999 agreed to the appointment of trustees and therefore, they are estopped from denying the CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 11 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
claim of the applicants. The applicants are not vindicating their personal rights.
15. In Kabul Singh and Anr. vs Ram Singh and Ors. AIR 1986 All 75, Hon'ble High Court of Allahabad, has discussed the law under Section 92 CPC. It has held as under:
"It is well settled that it is only the allegation in the plaint that should be looked into in the first instance to see whether the suit fails within the ambit of Section 92 of the Civil P.C. vide Swami Parmatmanand Saraswati v. Ramji Trinathi, (1974) 2 SCC 695 : (AIR 1974 SC 2141); Charan Singh v. Darshan Singh, (1975) 1 SCC 298 : (AIR 1975 SC 371). A suit under Section 92, C.P.C.
is a suit of a special nature which presupposes the existence of a public trust of religious or charitable nature. The court is required to ascertain from the plaint the dominant purpose of the suit. If on an analysis of the averments contained in the plaint, it transpires that the primary object behind the suit was the vindication of individual or personal rights of third persons or the plaintiffs themselves, an action under this provision does not lie. In Swami Parmatmanand Saraswati, (AIR 1974 SC 2141) (Supra) upon the death of B under the terms of his will S was installed as the head of the Math. A section of the worshippers asserted that there was no will duly made by B; that S could not have been installed as the head of the Math and that K was instead duly installed head of the Math. Their Lordships of the Supreme Court laid down : ".......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. M. Govinda Chetty, CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 12 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
AIR 1938 Mad 92; Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga, AIR 1943 Mad 466 (FB); Sugra Bibi v. Hazi Kummu Mia; AIR 1969 SC 884 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."
"Applying this principle to the facts of that case the view taken by the Supreme Court was : -
"We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a Trust bring, a suit purporting to be under Section 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 13 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
the right of the beneficiaries of the Trust, merely because the suit was filed by two or more members of the public after obtaining the sanction of the AdvocateGeneral and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under Section 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is one for vindicating the right of the public or the individual right of the plaintiffs or third persons."
"Upon scrutiny into the allegations of the plaint before us, it is clear that the position is in material respects analogous to that obtaining in the aforementioned case. In para 3 of plaint the assertion is that the right to manage the Gurudwara inheres in the residents of Tehri professing faith in the Sikh religion of Sri Guru Granth Sahib. There is reference in para 5 to the Managing Committee allegedly elected by such residents in the year 1950 of which the defendant No. 1, it is alleged, was the PresidentcumManager. Paragraph 6(ii) recites that this Managing Committee was superseded by another Managing Committee elected on October 31, 1966. According to the plaintiffs' case, therefore, these are the persons competent to manage the affairs of the endowment. The plaint is conspicuous by complete absence of averment charging the Managing Committee elected on Oct. 31, 1966 of maladministration or misconduct in respect of the trust nor is there foundation laid in the plaint to seek their removal. The purpose of this suit is to settle the controversy whether the defendant No. 1 (Qabul Singh) especially and other defendants in general have a rightful claim to manage the affairs of the Gurudwara in preference to the Managing Committee claimed to have been elected on October 31, 1966 by the residents of Tehri professing Sikh religion of Guru Granth Sahib. This being the crux of the dispute raised, as is manifest from the plaint itself, it is of little consequence that in the relief claimed removal of the members of this Managing Committee has also been CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 14 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
prayed for. In Swami Parmatmanand Saraswati, (AIR 1974 SC 2141) (supra) also notice was taken of the fact that, there was no allegation in" the plaint questioning or casting doubt on the validity of the installation of K as the Head of the Math and there was also no allegation against him in respect of the management of the trust properties. The inference drawn was that these merely showed the strain of the draftsman to dress up the plaint with prayers to make it appear that the plaintiffs were the disinterested dominions of the right of the public and not the mere partisan advocates of the personal case of K. In case the Court were to find in the proceeding that the right to manage inheres in the Managing Committee claimed to have been elected in Oct. 1966, the real grievance focussed in the plaint would disappear and this suggests strongly the object underlying the institution of the suit."
16. In the present case, the applicants want the appointment of applicant no. 1 as trustee in the respondent no. 2 trust. It has been argued that as per the judgment dated 22.12.1999, Shanti Devi was appointed as one of the trustee in terms of the said judgment. She has already expired and therefore, there is no representation from the family of Late Sant Singh. It has been argued that Ld. District Judge in the judgment dated 22.12.1999 has observed that at least one of the family member of the two brothers and one sister of Late Justice Gopal Singh should be a trustee.
17. I have studied the judgment dated 22.12.1999 passed by Sh. M.A. Khan, Ld. District Judge, Delhi in a suit under Section 92 of the CPC for appointment of trustees in respect of CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 15 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
properties left by the deceased Justice Gopal Singh for public charities. However, I do not find any such final observation given by Ld. District Judge in the said judgment. The Ld. District Judge in the said judgment has noted down the suggestion given by the parties that at least one of the defendant of the each two brothers and one of the sister of Late Justice Gopal Singh should be appointed as trustees. However, that was not the finding given by the Court in the judgment. The finding of the Court is recorded in para no. 16 as under:
"16....... On the facts and circumstances of the case, I am of the considered view that the relatives of Late Justice Gopal Singh should have adequate representation in the Board of Trustees. Similarly, Niti Bagh Welfare Association and Minianwali Society should also be represented there. Bhai Sant Tirath Singh Ji could also not be ignored because of closed spiritual relations with Justice Gopal Singh and his family including the petitioners and objectors who are relatives of the founder. Another name which has been suggested by Bhai Sant Tirath Singh Ji and Ld. Counsel for the petitioners may be Sh. T.S. Oberoi, Retired Member DHJS of CAT if he is kind enough to give his consent."
18. Thus, the Ld. District Judge was of the view that the relatives of the Justice Gopal Singh should have adequate representation in the Board of Trustees and therefore, 3 members from the relatives of Justice Gopal Singh were appointed as trustees out of the 7 trustees. There is no observation of the Ld. District Judge that there has to be one CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 16 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
representation from each relative for all times to come. During course of the arguments, it has been admitted on behalf of the applicants that at present, there are 3 relatives of Justice Gopal Singh who are the trustees of the trust out of 7 trustees. The directions in the judgment appears to be for appointment of 3 relatives of Justice Gopal Singh. The directions are not that there should be one trustee each from the family of the each 3 relatives of Justice Gopal Singh.
19. Be that as it may, the applicants by filing the present suit want the appointment of applicant no. 1 as one of the trustee in the trust by removing any trustee already appointed. It is not mentioned in the suit or during arguments as to which trustee has to be removed to appoint the applicant no. 1 as trustee. It has been argued that the prayer of the applicants is to appointment of applicant no. 1 as the trustee and the members of the trust can decide themselves as to who is required to be removed.
20. I am of the considered opinion that the reliefs claimed by the applicants in the present suit are in the nature of vindication of their personal rights and not of the public rights. It is settled position of law that a suit for vindication of personal rights is not maintainable under Section 92 of the CPC. Hon'ble Supreme Court of India in Swami Parmatma CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 17 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
nand Saraswati v. Ramji Tripathi, AIR 1974 SC 2141 , has held that every suit claiming the reliefs specified in S. 92 cannot be brought under S. 92 because S. 92 envisages suit of a special nature which presupposes the existence of a public trust of religious or charitable character. The Hon'ble Supreme Court of India has also held that 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 Section 92 CPC. It has held as under :
"A suit under s. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated cr 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, oven if all the other ingredients of a suit under s. 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 S. 92 see Shamukhan v. Govinda (1) Tirumalai Devasthanams v. Krishnayya(2). Sugra Bibi v. Hazi Kummu Mia(3) and Mulla : Civil Procedure Code (13th ed.), Voll. 1, p. 4001. 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 CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 18 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
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 s. 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 arc 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 s. 92. We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a trust bring a suit purporting to be under s. 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, 'on. the allegations in the plaint, it is clear that the purpose of the suit was, to vindicate the individualright of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the trusts, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under s. 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is, care for CS DJ No. 68/2020 CNR No.: DLST01-001136-2020 Page 19 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022 SH. GAGAN GANDHI & ANR. Vs. THE GOVT. OF NCT OF DELHI & ORS.
vindicating the right of the public or the individual right of the plaintiffs or third persons."
21. In the present case, the applicants have prayed for appointment of applicant no. 1 as one of the trustee of the respondent no. 2. The applicants have not shown that there is any mismanagement of the trust or there is any breach of trust, express or constructive. As above mentioned, the applicants have also failed to show any reason where the direction of the Court is deemed necessary for the administration of the respondent trust. The applicants want to vindicate their personal rights on the basis of the judgment of the Ld. District Judge dated 22.12.1999 and therefore, the proposed suit is based on assertions of private rights of the applicants. Hence, I am of the considered opinion that the applicants are not entitled for the leave of this Court to institute the suit under Section 92 the CPC. The application is therefore, dismissed and disposed of accordingly.
Pronounced in open Court on this Day 24th of December, 2022. Digitally signed by DINESH DINESH KUMAR KUMAR Date:
2022.12.24 16:47:01 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE02 SOUTH, SAKET COURTS, NEW DELHI.CS DJ No. 68/2020
CNR No.: DLST01-001136-2020 Page 20 of 20 Dinesh Kumar/ADJ-02/South/Saket/ND/24.12.2022