Madras High Court
N.Syamala Devi vs Dr.Geetha Hari Priya @ Geetha ... on 23 August, 2012
In the High Court of Judicature at Madras Dated 23.08.2012 The Hon'blr Mr.Justice R.Subbiah Application No.2290 of 2011 in Civil Suit No.196 of 2011 1. N.Syamala Devi 2. N.R.Hemalatha Shree 3. N.Khanna 4. Narravula Rukmani Venkama Trust rep.by N.Syama, No.Q-24, New No.48, MMDA Colony, Arumbakkam, Chennai-106. 5. Rukmani Matriculation School, rep.by its Correspondent Syamala Devi, No.Q-24, New No.48, MMDA Colony, Arumbakkam, Chennai-106. 6. N.Raghavulu Naidu ..Applicants ..vs.. 1. Dr.Geetha Hari Priya @ Geetha Gopalaswamy 2. E.Raghava Rao 3. G.Kamala 4. EVK Prasad 5. Jamuna Chandraya ..Respondents For Applicants : Mr.T.V.Ramanujam, Senior Counsel for Mr.J.Kamaraj For Respondents: Mr.K.Moorthy ORDER :
R.SUBBIAH, J., This is an application filed by defendants 1 to 6 to revoke the leave granted in A.No.1597 of 2011 dated 16.03.2011 to sue the defendants in the suit.
2. The respondents herein are the plaintiffs and they filed the suit for the following reliefs:
(i) to frame a scheme in terms of section 92 of C.P.C.permitting the Trust, namely, Maruthi Educational Trust having its office at Plot No.Q 100 A, MMDA Colony, Arumbakkam, Chennai-600 106 to run the school including Maruthi Matriculation School consisting of the trustees and other eminent persons in the field of education having experience and expertise in running the trust and to fulfil the objects as envisaged under the deed of trust dated 25.09.1996 registered as Doc.No.285 of 1996 on the file of SRO., Kodambakkam;
(ii) to remove defendants 1 and 2 as trustees from the Maruthi Educational Trust;
(iii) to render accounts and expenditure for the Maruthi Educational Trust from 2005 to till date;
(iv) to declare the lease deed dated 29.05.2010 executed by the 1st defendant in favour of 5th defendant registered as Doc.No.3288 of 2010 on the file of the 8th defendant as null and void and sham and not binding on the plaintiffs and the 9th defendant and set aside the same and consequently, grant mandatory injunction directing the 8th defendant to cancel the entry with regard to registered Document No.3288 of 2010;
(v) to grant permanent injunction in favour of the plaintiffs as against defendants 1 to 6 restraining them from interfering with the plaintiffs in any manner running the school including Maruthi Matriculation School by virtue of the trust deed dated 11.03.2010 registered as Doc.No.179 of 2010 on the file of SRO., Kodambakkam; and
(vi) to grant permanent injunction restraining defendants 1 to 6 and their men from doing any activity either directly or indirectly and contrary to the objects of the trust deed dated 25.09.1996 without the consent of other trustees.
3. For easy reference, the parties are hereinafter referred to as per their ranking in the suit. The suit was filed under section 92 of C.P.C. and Order 7 Rule 1 of C.P.C. Along with the suit, the plaintiffs filed an application in A.No.1597 of 2011 to grant leave to them under section 92 of C.P.C. to maintain the suit and to protect the interest of the trust as well as the trustees. This Court, by order, dated 16.03.2011, granted leave to them. On appearance, defendants 1 to 6 filed the present application to revoke the leave granted in O.A.No.1597 of 2011. Therefore, it is necessary to extract the averments made in A.No.1597 of 2011 as well as the present application.
4. In A.No.1597 of 2011, the plaintiffs have stated that the school "Maruthi Matriculation School" is a private unaided school and is managed by Maruthi Educational Trust. The 5th plaintiff formed a trust by a registered deed dated 25.04.1996 and no person can claim exclusive ownership over the property nor entitled to exclusive administration and management of the Maruthi Matriculation School. The trust was formed with an object to impart education of all kinds, relief of the poor and medical relief and any other objects of general public utility and to run Educational Institute for less fortunate children and to establish schools, colleges, technical institutions and other institutions and professional colleges, courses, etc.and for imparting general, academic, technical or professional education to students at large. Clause 3(b) of the trust deed says that any property movables or immovable that may be acquired by the trust either by purchase or otherwise shall be deemed to be the property of the trust. Under clause 6 of the trust deed, the administration shall be carried out by the 1st defendant or the 1st trustee or their successors in office and the Board of trustees or their successors shall have full power or the authority to administer the trust. Under clause 8, the trustees shall maintain trust and correct accounts of the trust and a correct record of their deliberations and shall have the accounts duly audited by a qualified a Chartered Accountant. Under clause 9 of the trust deed, the trustees have power and authority to make, alter and rescind rules and regulations for the management and administration of the trust. As per clause 13, if the trustees fail to maintain proper accounts and fail to maintain render true and proper accounts, they shall be personally liable. Clause 19 says that only the trustees shall have the powers for amending the covenants of the trust except the object of the trust an all other provisions of the trust deed. The trust deed is irrevocable in nature.
5. It is the further case of the plaintiffs that the 1st defendant, being the founder trustee, has indulged in unlawful activities to defeat the rights of the trust. The 1st defendant had acted in detrimental to the trust and attempted to usurp the properties to herself. The 1st defendant made an attempt to create other trust showing the office address as that of her residence and also with the same objects as that of the Maruthi Educational Trust. Apart from that, the 1st defendant had also executed a lease deed for herself as lessor and as well as lessee in the same premises where the Maruthi Educational Trust is situated, encumbering the property for 30 years by sham and nominal lease deed where the school is run by the trust. Thereafter, the 1st defendant filed a suit in C.S.No.407 of 2006 as against the other trustees and obtained an order preventing the other trustees from entering into the premises and in the meantime, the 1st defendant indulged in activities detriment to the trust and created sham and nominal documents and permitted the 9th defendant trust to lose its recognition. Moreover, the 1st defendant has also not rendered accounts and has not maintained proper accounts of the trust fund and refused to have the same audited by a qualified Chartered Accountant as per clause 8 of the trust deed. The fund utilised and collected for running the school has been embezzled by the 1st defendant by opening new bank account in her name taking advantage of her fiduciary nature being the founder trustee of the Maruthi Educational Trust. The 1st defendant, by taking advantage of her position as the Managing Trustee, has acted contrary to the interest of the trust. Defendants 1 to 6 have committed several illegalities, which resulted in filing of two writ petitions in W.P.Nos.27982 and 29173 of 2010, which are pending before this Court for consideration. The acts of defendants 1 to 6 by taking advantage of the orders passed in C.S.No.407 of 2006 affected the morale of the students and staff of Maruthi Matriculation School. Hence, the present suit has been filed for the prayers stated supra. Pending suit, A.No.1597 of 2011 has been filed to grant leave to sue the defendants stating that the public interest with regard to the students studying in the school is greatly affected by the various acts of the defendants and this Court has ordered the said application.
6. On appearance, defendants 1 to 6 have filed the present application to revoke the leave granted by this court. In the said application, it has been stated that the suit filed by the plaintiffs under section 92 C.P.C.is not sustainable either in law or on facts. The Maruthi Educational Trust has nothing to do with the property in question and in fact, the trust does not own any immovable property. In the plaint, there is no schedule of property. So far as the lease deed in respect of the property owned by the 1st defendant is concerned, there cannot be any suit under section 92 of C.P.C. When the property is owned by the 1st defendant, she is entitled to start a school there. But the plaintiffs claimed that it is a partnership property. The plaintiffs filed C.S.No.555 of 2006 seeking for a declaration that the property purchased from the Tamil Nadu Housing Board and other construction thereon are the properties of the so-called partnership firm Maruthi & Co., and the same was rejected. Thereafter, the plaintiffs resorted to arbitration proceedings. Pending arbitration, they have filed an application in O.A.No.53 of 2011 under section 9 of the Arbitration and Conciliation Act before this Court, seeking for injunction that the 1st defendant should not alienate her property claiming that the property is the partnership property. For which, the 1st defendant filed a counter affidavit raising the plea of maintainability and other pleas. Finally, on 23.03.2011, the plaintiffs withdrew the said application realising that such an application is not sustainable both in law or on facts. The plaintiffs, having failed in their claim, cannot abuse the process of law by filing a suit under section 92 of C.P.C., which is not maintainable. The time and manner in which the suit is filed establish that the plaintiffs are indulging in forum shopping and vexatious litigation and abuse of process of law. The question that whether the 1st defendant can run Rukmani Matriculation School in her property and whether she is entitled to get recognition are all matters pending before the educational authorities. The plaintiffs have already filed writ petitions by falsely claiming that they are the joint owners of the property. The 1st defendant also filed a writ petition for a direction to the educational authorities to consider her application for recognition of the school as per the Act. When the plaintiffs filed the suit claiming share in the property in question as partners in the alleged partnership in C.S.No.555 of 2006, which was rejected and they also withdrew O.A.53 of 2011, now they cannot prevent the authorities from considering the 1st defendant's application.
7. It has been further stated by defendants 1 to 6 that there is no trust and it is only in paper. Therefore, there cannot be any suit under section 92 of C.P.C.based on an unilateral claim of existence of a Trust and several clauses in the trust deed relied on by the plaintiffs are nothing but opportunistic. The plaintiffs cannot claim any right under the same.
8. The 1st defendant was allotted the land and was given possession by the Tamil Nadu Housing Board, wherein the 1st defendant started a primary school in the name of "Maruthi Vidhyalaya" with the help and guidance of her husband N.Raghavulu Naidu, the 6th defendant. The plaintiffs had not contributed anything to the establishment and development of the school. Now, Maruthi Vidhyalaya was developed and upgraded from the income of the school and apart from that, more personal funds and loans were obtained by the 1st defendant and the plaintiffs never cared to nurture the institution. Since none of the plaintiffs ever had occasion or interest to develop the school, the alleged trust was no longer functioning from the inception and it never came into existence. The plaintiffs have failed to make any prima facie case for the suit under section 92 CPC. The plaintiffs are not entitled to any accounts and they are attempting to stall the proceedings in order to usurp the property. Thus, they prayed for the revocation of leave.
9. For the said application, the plaintiffs filed a counter denying the averments made by the defendants. It has been stated inter alia that the suit is maintainable under section 92 of C.P.C. The statement that in the plaint, there is no schedule of property is not correct as the prayer sought for is comprehensive to give the necessary relief under section 92 CPC. The present suit has been filed to establish the rights of the trust which is correct in law and the partners of the partnership deed have acknowledged the contribution and the trustees along with the family members started the trust during the upgradation of the school from primary to matriculation and the same was matter on record. Admittedly, the 1stdefendant, being the founder trustee of the 9th defendant, had admitted that the income was generated from the school run in the name of the 9th defendant and all the infrastructure is through the income derived from the 9th defendant trust which is running the school Maruthi Matriculation. The reference of writ petitions has nothing to do with the present suit and the 1st defendant is prohibited under law to seek recognition to run a school which is run by the 9th defendant all these years. Only when the resolutions were passed by the trustees, to save the trust, the 1st defendant filed C.S.No.407 of 2006 with mala fide intention by keeping other trustees away from the school premises with a motive to grab the property to the detriment of the rights of the 9th defendant and the plaintiffs. When the 1st defendant admitted that it is only the trust which is running the school in the name of Maruthi Educational Trust in the reply notice dated 13.11.2004, she is estopped from taking different position in the present proceedings. Due to the constant oppression and detrimental activity of the 1st defendant and her family members, the rights of the trust are affected. Various Board Meetings of the trust established the fact that the trust was in existence. Taking advantage of the land standing in the name of the 1st defendant, she is acting in a manner oppressive to the rights of the 9th defendant and the plaintiffs.
10. It has been further stated that the very purpose of the present suit is bona fide to run the school which the 1st defendant and her family members are stalling. All the proceedings with the authorities were never disclosed to the 9th defendant by the 1st defendant who effectively connived with the educational authorities in her attempt to close down which is impermissible in law. The filing of suit in C.S.No.407 of 2006 establishes the presence of trust which cannot be disowned at a later point of time. It is established that C.S.No.407 of 2006 will not sustain. On knowing all these facts, the 1st defendant is attempting to withdraw the suit thereby once again created much hurdle to the 9th defendant and the plaintiffs. The admission of the 1st defendant that they repaid the loan from the school account establishes the title of the 9th defendant. Several representations were given to the authorities since the 1st defendant and her family members were clandestinely attempting to defeat the rights of the 9th defendant and the plaintiffs. The very fact that the trust is recognised as educational agency cannot be denied by the 1st defendant after several years. It is a matter of fact that the 9th defendant is only managing the agency of the institution as recognised by the authorities and the 1st defendant has no right to close down the school and start a new school without recognition. The statement that the school is closed by due process of law is an incorrect statement and is the subject matter of the writ petitions. Once a trust created having office in the suit premises and it running a school as recognised by the authorities, the 1st defendant has no unilateral powers to close down and create any trust affecting the rights of the existing trust, namely, the 9th defendant. Taking advantage of the orders obtained fraudulently by suppressing material facts, the 1st defendant and her family members caused irreparable damage to the 9th defendant and the plaintiffs. The 1st defendant is not entitled to establish any new school in her property without reference to the plaintiffs and she has no authority to enter into lease deed to affect the rights of the 9th defendant. The repeated statement that the trust is defunct is absolutely false. It is pertinent to point out that the 1st defendant had given a false declaration before the authorities that during middle of the academic year, students, staff and infrastructure are claimed to be that of new school which were belonging to the 9th defendant. Such misrepresentation was made during October, 2010 when even according to the 1st defendant, the school was closed only on 19.11.2010. The new school opened by the 1st defendant by name Rukmani Matriculation School cannot be sustained in law and no recognition has been granted to the same by the authorities and they are prohibited under law. The 1st defendant has no authority unilaterally to start any new school in the premises where the 9th defendant office is present and is running the school more than 17 years in the name of Maruthi Matriculation School. It is not correct to state that the pleadings in C.S.No.555 of 2006 (the earlier suit filed by the plaintiffs) and O.A.No.53 of 2011 (Proceedings initiated under the Arbitration Act by the plaintiffs) are in conflict with the present suit, whereas, all the proceedings were disclosed before this Court even at the time of seeking leave to sue, which was granted by this Court. If the leave is revoked, the rights of the 9th defendant will not only be affected but also the persons who had acted in breach of trust to defeat the rights of the trust will be benefited. Under such circumstances, the application to revoke the leave is liable to be dismissed.
11. Learned senior counsel appearing for defendants 1 to 6 submitted that the Tamil Nadu Housing Board has allotted the property measuring about 7 grounds 800 sq.ft.at plot No.Q 100A, MMDA Colony, Arumbakkam, Chennai, in favour of the 1st defendant for the purpose of establishing a primary school. The Board has also executed a pucca sale deed dated 13.07.1994. The said property is the own property of the 1st defendant. The plaintiffs put up a construction in the said land and established a school under the name and style of Maruthi Vidhyalaya for imparting education to the students from classes I to V. Originally, the 1st defendant was running the school in a thatched shed. Thereafter, in the year 1993-94, the 1st defendant put up RCC structure. Subsequently, the school was upgraded upto VII standard in the year 1996. The 1st defendant wanted to upgrade the institution as Matriculation School and applied all necessary papers for recognition. But the plaintiffs have filed the present suit stating that the school in question belonged to Maruthi Educational Trust and not to the 1st defendant. In this regard, the learned senior counsel submitted that had the property been belonged to Maruthi Educational Trust, as claimed by the plaintiffs, the said property should have been mentioned in the schedule of the plaint. But, in the instant case, the plaint does not contain the property particulars. Only in order to grab the suit property, the plaintiffs are projecting the case as if the property is a trust property.
12. The learned senior counsel for defendants 1 to 6, by inviting the attention of this Court to the plaint in C.S.No.555 of 2006 i.e. the earlier suit filed by plaintiffs 1 to 3 as against the 1st defendant, submitted that in the earlier suit, it has been stated that the property belonged to a partnership firm. But the said plaint was rejected by this Court by order dated 28.08.2009 stating that the said firm is an unregistered one and as such, the suit is not maintainable. Thereafter, the arbitration proceedings was initiated by the defendants. Pending arbitration proceedings, the plaintiffs have field O.A.No.53 of 2011 under section 9 of the Arbitration and Conciliation Act stating that the property is a partnership firm. Subsequently, they withdrew the said application and filed the present suit claiming that the school has been running by the Maruthi Educational Trust.
13. The learned senior counsel for defendants 1 to 6 further submitted that the approach of the plaintiffs by filing various proceedings claiming that the school belonged to the partnership firm and thereafter, by giving up the theory of partnership firm, filed the present suit stating that the school belongs to the trust, would show that the plaintiffs are indulging only in forum shopping by taking different contradictory stand. Further, the learned senior counsel relied on the legal notice dated 13.11.2004 sent by the 3rd plaintiff and submitted that even in the legal notice, they have referred to that the property is the partnership firm property. The learned senior counsel further submitted that the plaintiffs never took participation in the activities of the school run by the 1st defendant. In the said situation, the educational authorities refused to grant recognition of the school in the year 2005 on the false representation made by the plaintiffs that they have passed a resolution dated 06.05.2006 removing defendants 1 to 6.
14. Countering the submissions made by defendants 1 to 6, learned counsel for the plaintiffs submitted that originally a partnership firm was formed in the year 1993 in the name of Maruti and company. Plaintiffs 1 to 3 and one master Raghuvaran are all partners. The object of the partnership was to run the school. Plaintiffs 1 to 3 had contributed their respective shares in the partnership firm. Subsequently in the year 1996, the said partnership was upgraded as trust, namely, Maruti Educational Trust. In this regard, the learned counsel for the plaintiffs has also invited the attention of this court to the educational trust deed dated 24.03.1996 in which plaintiffs 1 to 5 herein and defendants 1 and 2 are the trustees. The trust deed has been created for upgrading the school upto matriculation school. The contribution was made by the trustees from the amount generated by them. In this regard, the learned counsel has invited the attention of this Court to the receipts issued by the 1st defendant in favour of plaintiffs 1 and 2 dated 06.06.1994 and 14.06.1994 submitted that the plaintiffs as trustees have contributed amount for the purchase of land for the purpose of constructing school. In this regard, the learned counsel has relied on some letters from Maruthi Vidhyalaya dated 22.12.1995 and 28.03.1996 signed by the 1st defendant for the purpose of holding a committee meeting to take decision with regard to construction of the building in the suit property for the purpose of running school. Thus, by relying upon these documents, the learned counsel submitted that it is incorrect to state that the property was purchased by the 1st defendant on her money. On the other hand, from the contribution made by the trustees, the property was purchased in the name of the 1st defendant. The 1st defendant is holding the property only in the fiduciary capacity as the trustee of the Maruti Educational Trust and in this regard, the learned counsel relied on section 88 of the Trust Act. The learned counsel further submitted that the educational authorities have also recognized the 9th defendant only as a trust and not as a partnership firm. In this regard the learned counsel invited the attention of this Court to the reply sent by the 1st defendant in response to the notice dated 30.11.2004 and submitted that in the said notice, the 1st respondent had stated that the partnership is a non-starter and the Maruthi Educational Trust was created for running the school. Thus, she admitted the existence of the trust. Moreover, the learned counsel submitted that since the earlier suit was filed as a partnership firm, it does not mean that the plaintiffs had given up the theory of trust, particularly in the circumstances when the existence of trust was admitted by the 1st defendant herself. The learned counsel further submitted that the plaintiffs have removed defendants 1 and 6 from the trusteeship on 06.05.2006; against which, the 1st defendant herself filed a suit in C.S.No.407 of 2006. Thereafter, she made an attempt to create another sham trust when the 9th defendant is in existence during March 2010 along with her family members, by name, Rukmani Matriculation School; but the recognistion was not given by the educational authorities. All these disputes among the trustees would show that the issue involved in the suit is a subject matter of the trust and public interest with regard to the students studying in the school is greatly affected by various acts of the 1st defendant. Therefore, the present suit is filed to frame a scheme under section 92 CPC. It is further submitted that actually, no prayer was made with regard to the trust property and the prayers were made mainly to frame the scheme for the trust. Under such circumstances only, the property of the trust was not mentioned by way of a separate schedule in the plaint. Moreover, mentioning the trust property in the plaint is not necessary when the suit was filed for framing scheme to run the school.
15. This court has considered the submissions of both sides and perused the materials available on record.
16. The contention of the learned senior counsel appearing for the defendants is mainly on the following grounds;
(i) the property in which the school is constructed, namely, Maruthi Educational Trust is a self-earned property of the 1st defendant. If the property belongs to the Trust, the plaintiffs could have mentioned the property in the plaint by way of a separate schedule. But, the non-mentioning of the property in the plaint would show that no public interest is involved and the dispute is only a personal dispute;
(ii) the earlier proceedings were initiated by the plaintiffs stating that the school was run by the partnership firm. By giving up the theory of partnership, the present suit is filed claiming that it is a trust.
17. With regard to the first fold of submission, the learned counsel for the plaintiffs has relied on the sale deed executed by the Tamil Nadu Housing Board in favour of the 1st defendant. It is no doubt, a perusal of the same would show that the property stands in the name of the 1st defendant. But it is the contention of the plaintiffs that they have contributed money to purchase the property. The 1st defendant is having the conveyance only in the fiduciary capacity as one of the trustees of the trust as per section 88 of the Trust Act. The learned counsel submitted that the 1st defendant is only in the fiduciary capacity for the beneficial interest of the trust. In this regard, the learned counsel for the plaintiffs relied upon the judgment reported in Satgur Prasad .vs. Har Narain Das (AIR 1932 Privy Council 89). That apart, the learned counsel has also invited the attention of the receipts issued by the 1st defendant in favour of the plaintiffs. After going through the same, I am of the considered opinion, the case of the 1st defendant that the property is the self-earned property was countered by the plaintiffs by stating that the 1st defendant is holding the property in the fiduciary capacity as one of the trustees is a valid defence. Anyway whether it is the self-earned property of the 1st defendant or the 1st defendant is holding the property in a fiduciary capacity is a subject matter of trial. So far as the present case is concerned, irrespective of the case projected by the parties with regard to the property in question, I find that the present suit is filed only to frame a scheme to permit the trust or the educational trust to run the school including the matriculation school consisting of trustees and the eminent persons. No prayer has been sought as against the property. Therefore, in my considered opinion, the submission made by the learned senior counsel for the defendants with regard to the non-mentioning of the property cannot be taken as a valid ground for rejecting the plaint.
18. With regard to the other submission of defendants 1 to 6 that originally the suit in C.S.Nos.555 of 2006 and O.A.No.53 of 2011 under section 9 of Arbitration Act have been filed by the plaintiffs stating that the property belonged to partnership firm; now, by giving up the theory of partnership firm, the present suit has been filed that the school was running by the trust; and the trust is only in paper and actually there is no trust in existence. But I find that in the year 1993, originally a partnership firm was formed under the name "Maruti and Company" for the purpose of running the school. Subsequently, in the year 1996, a trust was created in which plaintiffs 1 to 5 and defendants 1 and 2 are the trustees. On 13.11.2004, when the legal notice was sent to the 1st defendant, she sent a reply notice through advocate dated 24.11.2004 stating that the partnership is a non-starter and a trust by Maruti Educational Trust was formed for running a school. The relevant paragraphs in the said reply notice are hereunder:
"The partnership firm was not registered as none intended to create a partnership firm to run the school on commercial basis. School had already been run by her on this land as Maruthi Vidyalaya even before 1993.
You never contributed to the construction of any portion of the school building at any time. None took interest in the school administration and development which was continued to be run by her in her individual capacity even after 10.05.1993 as no effective collective effort was forthcoming.
She alone got government recognition for the School.
She denies any communication from you expressing displeasure, discontent and annoyance or any audience for looking into any aspect of the management and income of the school. Nor was there any sort of negotiation as suggested in paras 12 to 16 of your notice.
She reiterates that the participation was a non-starter. Hence, no right can flow from same, to any one.
Kindly remember the formation of Trust by name Maruthi Educational Trust, for running the school-vide Trust Deed dated 25.04.1996. You are also a Trustee therein. This Trust is running the School".
19. From the said averments, it is clear that the existence of trust is admitted by the 1st defendant herself. Further the allegations made in the pleadings would show that there was a dispute between the plaintiffs and defendant 1 to 6 in administering the school. In fact, the educational authorities have also not renewed the recognition after 2011 and presently the school was closed. Further, the documents would show that the 1st defendant had made an attempt to create another trust in the year 2010. The allegations made in the plaint would show that there is a dispute between the trustees in administering the school namely, Maruti Educational School. Therefore, the present suit for framing a scheme squarely falls within the purview of section 92. In this regard, reliance could be placed in the judgment reported in the case of this Court in the case of Rajasekaran,V. .vs. M.Rajendran (2007(2) SCC 769), relied on by the plaintiffs, wherein it has been held as follows:
"15. A perusal of the plaint or the Leave Application do not prima facie indicate that the suit had been filed primarily to protect the interest of Mrs.Vijayakumar and her husband. It is no doubt true that reference has been made to several litigations which arose between the trustee and some of the beneficiaries under the Will, but the reference can be construed as highlighting the bane of unnecessary litigations creating a drain on the assets of the trust. The main prayer in the suit was for removing the defendant from the Trusteeship of the M.G.R.Home for deaf and dumb on the allegation that there has not been proper utilisation of the assets and misutilisation and also for a direction to the defendant to render accounts relating to the Trust property. Even though at the stage of grant of leave the Court is required to consider the aspect of bona fides of the plaintiff, obviously the Court is required to consider such aspect prima facie because at that stage concrete evidence is not available. As observed by the Supreme Court in Swami Parmatman and Saraswati and another .vs. Ramji Tripathi and another, AIR 1974 SC 2141 if at a later stage it appears that the purpose for the Suit was not in relation to a public trust but for other purpose, even at that stage the Suit can be dismissed. The effect of not granting leave is to short out any enquiry in the alleged misdeeds of a trustee of a public trust. It is no doubt true that vexatious Suit should be avoided. But, at the stage of considering the grant of leave, there should be very strong evidence to come to a conclusion that the Suit is vexatious in nature.
.....
18. As observed in Kumudavalli .vs. P.N.Purushotham, 1978 (1) MLJ 261, the provisions contained in Section 92, C.P.C.operate as a shield against the mismanagement of the public trust in as far as possible so as to afford protection for the due and proper management, upkeep and maintenance of public trust and to guard against mismanagement. It may be that at times vexatious Suits may be filed. If materials are strong enough to come to a conclusion that the Suit is vexatious, obviously the Court is justified in refusing to grant leave. Unless a strong case is made out, ordinarily the Court should grant leave so that the question can be considered in depth after evidence is recorded. Of course if it is ultimately the Court after recording evidence comes to a conclusion that the Suit had been filed unjustifiably, the Court can impose exemplary costs against the plaintiff, but if the leave is rejected at the threshold some instances of mismanagement/ misutilisation cannot be brought to light.
19. Since in the present case the leave has been refused being swayed away by most of the allegations made in the counter affidavit filed on behalf of the present contesting respondent and since on materials on record we are of the opinion that this is not a matter where leave should have been rejected at the threshold, we allow the Appeal and direct that the leave shall be granted for the purpose of filing the Suit. It is made clear that the opinion expressed by us only a prima facie opinion and should not be construed as expressing any opinion on the merits of the contentions raised in the Suit. It is obvious that the matter has to be decided on its own merits".
20. The plaintiffs further relied on the case reported in Chennai Vazhai Duraiyur Nadar Union Murai Magamai Sangam .vs. K.A.Gurusamy (2004(1)CTC 481), wherein a Division Bench of this Court has held as follows:
"8. Before dealing with the contentions raised on behalf of the appellants/plaintiffs and the respondents/defendants on merits, we would like to deal with the scope of Sec.92 of the Code.
"92. Public Charities - In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree,
(a) removing any trustee;
(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 inquires;
(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".
The above said provision is provided to give protection to the public trust of a charitable and religious nature from being subjected to harassment by suits filed against them. The following conditions have to be specified to apply Sec.92 of the Code:
(a) There should be a trust created for public purpose of charitable or religious nature.
(b) In case of any alleged breach of such trust, direction of the Court is necessary for administration of such a trust;
(c) The suit must be representative one on behalf of the public and is not by individuals for their own interest;
(d) The relief claimed in the suit must be one or other reliefs mentioned in the provision;
The expression "charitable trust of a public nature" contemplates the trust to be both charitable one and a public one, the beneficiaries must be public though not public at large, yet a classified section of it, no specified individuals must be unascertained persons. It is no doubt true, the Court prima facie satisfies either of breach of trust or of necessity for obtaining direction of the Court before granting the relief. The Apex Court in the decision in Charan Singh v. Darshan Singh, AIR 1975 SC 371, decided the scope of Sec.92 of the Code and further held that maintainability of the suit depends upon the allegations in the plaint and does not fall for decision with reference to averments in the written statement."
21. A reading of the above judgments would show that the plaintiffs have to satisfy that there should be a trust created for the public purpose of charitable and religious nature and in case of any alleged breach of such trust, direction of the Court is necessary for administration of such a trust. The suit must be representative one on behalf of the public and is not by individuals for their own interest. The relief claimed in the suit must be one or other reliefs mentioned in the provision. In the instant case, the existence of public trust was admitted by the defendants. The allegations made in the plaint would show that there was a school run by the plaintiffs who are the trustees of the trust for imparting education. Now, the educational authorities have also not granted recognition of the school, which necessitated to file the present suit for administration of trust. The relief claimed by the trust falls within the reliefs mentioned under section 92 of C.P.C. Therefore, I am of the opinion that the Court had correctly granted the leave. Further more, from the dictum laid down in the judgments relied upon by the learned counsel for the plaintiffs, I am of the view that only when there is a strong material before this Court to come to a conclusion that the suit is vexatious, then the Court can deny the leave already obtained, otherwise the leave cannot be rejected at the threshold stage. So far as the present case is concerned, from a reading of averments in the plaint and from the other materials, I find that there is an existence of a Public Trust. Since there is a dispute between the trustees to administer the school run by the Trust, the present suit has been filed for framing of Scheme. Absolutely, I do not find any material to come to a conclusion that the suit is vexatious. Therefore, the contention made by the learned senior counsel for the defendants that the present suit is filed to vindicate the individual rights is not accepted. The suit is not for a declaration of any individual or personal rights and it is brought under section 92 only to vindicate the rights of the public. Therefore, the judgment relied on by the defendants in the case of Swami Parmatmanand Saraswati .vs. Ramji Tripathi (AIR 1974 SC 2141) cannot be made applicable to the case on hand. I find that no case has been made out for revocation of leave. On the other hand, I am of the opinion, a case has been made out by the plaintiffs to grant leave under section 92 of C.P.C. Hence, the application to grant leave filed by the plaintiffs cannot be rejected at threshold.
For the reasons stated above, the application fails and is dismissed.
Index: Yes. 23.08.2012
Internet: Yes.
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R.SUBBIAH, J.,
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Pre-delivery Order in A.No.2290 of 2012 in C.S.No.196 of 2011
23.08.2012
In the High Court of Judicature at Madras
Dated 23.08.2012
The Hon'blr Mr.Justice R.Subbiah
Application No.2290 of 2011
in Civil Suit No.196 of 2011
1. N.Syamala Devi
2. N.R.Hemalatha Shree
3. N.Khanna
4. Narravula Rukmani Venkama Trust
rep.by N.Syama,
No.Q-24, New No.48, MMDA Colony,
Arumbakkam, Chennai-106.
5. Rukmani Matriculation School,
rep.by its Correspondent Syamala Devi,
No.Q-24, New No.48, MMDA Colony,
Arumbakkam, Chennai-106.
6. N.Raghavulu Naidu ..Applicants
..vs..
1. Dr.Geetha Hari Priya @ Geetha Gopalaswamy
2. E.Raghava Rao
3. G.Kamala
4. EVK Prasad
5. Jamuna Chandraya ..Respondents
For Applicants : Mr.T.V.Ramanujam, Senior Counsel
for Mr.J.Kamaraj
For Respondents: Mr.K.Moorthy