Suit under Section 92 of CPC

1. Introduction

- Read Section 92

2. SUIT UNDER SECTION 92 CPC

- The suit represents the public and permission granted to the original plaintiff applies to subsequent substitutions.

3. KEY INGREDIENTS OF SEC. 92 CPC

- Section 92 of the Code of Civil Procedure, 1908

4. Religious or charitable trust

- The suit under Section 92 alleges breach of public trust or seeks court direction for trust
administration. Mutts, being public religious endowments, are generally considered public trusts, and the beneficiaries include members of the respective religious community.

5. Trust and private rights

- If a suit primarily aims to protect private rights or individual interests, it does not fall within Section 92. The allegations in the plaint determine the suit's nature.

6. Framing of Scheme by Court

- Persons in possession of trust properties must deliver them to the appointed trustees, and individuals ineligible to be trustees cannot manage the properties.

7. Leave to sue

- Case Law: Mysore & ors. vs. G. M. Gadkar & ors

8. CONCLUSION

- Case Law: Vidyodaya Trust v. Mohan Prasad & Ors. (2008), the objective of section 92.

KEY TAKEAWAYS

• Suit under Section 92 CPC is of special nature created for the purpose of protecting the rights of the public in Public Trusts and Charities.
• It confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature.
• A suit under this Section revolves around the trust created for public purposes of religious or charitable character.
• For the application of this Section, it is necessary that there must be an allegation of either breach of trust or the necessity of having directions from the Court for the administration of trust.

INTRODUCTION

According to Section 92 of the Code it confers right on a person in case of any alleged breach of any express or constructive trust created for a public purpose of a charitable or religious nature. To put it plainly, Section 92 is a suit of special nature created for the purpose of protecting the rights of the public in Public Trusts and Charities.

This Section presupposes, the existence of a public trust (for public purpose) of a religious or charitable nature.
Consequently, the two main areas of Section 92 are:

1. The suit must be related to a trust created for public purposes of religious or charitable character.

2. There must be an allegation of either breach of trust or the necessity of having directions from the Court for the administration of trust.

SUIT UNDER SECTION 92 CPC

A suit under Section 92 of CPC is a suit of a special nature for the protection of Public rights in the Public Trusts and Charities. It presupposes the existence of a public trust of a religious or charitable character. A suit for a declaration that certain property appertains to a religious trust may lie under the general law, but is outside the scope of Section 92. A suit framed under Section 92 of the C.P.C., the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specially in the different clauses of the section. Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92, by persons whose activities were not for protection of the interests of the public trusts. First and the foremost requirement for an application under Section 92 is, the plaintiffs should bring the suit to vindicate the right of the public. Leave of the Court once granted no fresh permission is required if the original plaintiff dies. The Suit under Section 92 of CPC is a representative suit. It is filed representing the public at large. Once leave is granted and it has attained finality, if persons who are parties initially were to die and in their place others are substituted, it is not necessary that all those persons who are substituted should again seek leave of the Court, to prosecute the suit. It is because, the permission is granted to the public at large and not to the individual plaintiffs. Therefore, if the original plaintiff dies and others are substituted in their place, as the permission is granted for the public, the permission granted earlier holds good even in respect of them. [Christopher Karkada & Ors Church of South India, Madras & Ors. [RFA No. 280/2011, DD 19.11.2011]. ILR 2012 KAR 725: 2012 (1) KCCR 503(DB).]

KEY INGREDIENTS OF SEC. 92 CPC

Section 92 of the Code of Civil Procedure, 1908 deals with public charities.

The essentials of the provision are as follows:
• It provides for filing of a suit in respect of breach of trust created for the public purposes of a religious or charitable nature by the Advocate General or two or more other persons having an interest in the trust with the leave of the court for reliefs specified therein.
• The plaintiffs are merely representatives of all the beneficiaries and the action is instituted on behalf of all.
• It protects the public trusts of a charitable or religious nature from being subjected to harassment by suits filed against them.
• Prima facie evidence satisfying breach of trust or any of the necessary ingredients for obtaining directions of the court must be there before a suit of such nature is filed by the Advocate General.
• The suit may be brought against persons in possession of trust property who claim adversely to the trust, or against trustees who have committed breach of trust.
• In order for the court to dispose the matter, the defendants may satisfy the courts that the allegations made in the plaint are false and frivolous, instituted with the objective of harassing the trust.

Religious or charitable trust

Section 92 CPC applies only when the religious or charitable trust is for a public purpose. In order to find out whether a trust is a public trust or a charitable or religious nature contemplated by Section 92 of CPC, the Court must look to the real substance of the trust and the primary intention of the creator of the trust. The suit contemplated by Section 92 proceeds on the allegation of breach of public trust or is founded on the necessity of having direction from the Court regarding the administration of such trust. The question whether a particular mutt forms a public religious endowment or is a private institution must be judged in the light of the evidence in each case. The origin of the mutt if it is known, its antiquity, the nature of the gifts of property made to it, the way how these have been treated by its head, the long established usage and custom of the institution, all these throw valuable light on the question whether the mutt is a public religious endowment or a private institution. All matters relating to the administration of a Mutt are also intimately connected with the rights and duties of a Mohunt. The Matadapthi is the head of the institution. He manages the property of the institution. He administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself. The endowed property vests in the Mutt itself as a juristic person and not in the Mohunt or superior. The position, indeed, would be different if a formal trust deed is executed. In such circumstances, the legal ownership would vest in the trustees, and the superior or Mohunt might be one of the trustees or even the sole trustee if the donor so chooses. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs. It may constitute, atleast a section of the public. Mutts, in general, consequently, are public trusts. [Shivananda C.R. & Anr Sri. H.C. Gurusiddappa & Ors. [RFA No. 667/2001 C/w etc, DD 30.9.2011]. ILR 2011 KAR 4624: 2012 (2) KCCR 1186 (DB).]

Trust and private rights

To attract the operation of Section 92, the suit must be of a certain character and pray for certain reliefs. In the first place, the suit should relate to a trust created for public purposes of a charitable or religious nature. In the second place, it must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. In the third place, the reliefs claimed must be one or other of the reliefs specified in the Section and lastly, the suit must be one brought in a representative capacity in the interests of the public or of the trust itself and not for vindicating the private rights of the plaintiff. If these conditions are present, the suit can be brought in conformity with the provisions of Section 92 of the CPC. Further, a suit under Section 92 CPC is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. It presupposes the existence of a public trust of religious or charitable character. A suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, CPC. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section, if the plaintiff is held entitled to it. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. A suit under Section 92 of CPC is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. In deciding whether a suit falls within Section 92 of CPC 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. It is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92. [Shivananda C.R. & Anr Sri. H.C. Gurusiddappa & Ors. [RFA No. 667/2001 C/w etc, DD 30.9.2011]. ILR 2011 KAR 4624: 2012 (2) KCCR 1186 (DB).]

In order to attract the operation of Section 92 CPC, the suit must be of a certain character and pray for certain reliefs. In the first place, the suit should relate to a trust, created for public purposes of a charitable or religious nature. In the second place, the suit should relate to a trust, created for public purposes of a charitable or religious nature. In the second place, it must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. In the third place, the reliefs claimed must be one or other of the reliefs specified in the Section and, lastly, the suit must be one brought in a representative capacity, in the interests of the public or of the trust itself and not for vindicating the private rights of the plaintiff. It these conditions are present, the suit can be brought in conformity with the Section 92 of the Civil Procedure Code. A suit framed under Section 92 of the Civil Procedure Code, in only reliefs which the plaintiff can Claim and the Court can grant are those enumerated specifically in the different Clauses of the Section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of the Clauses. The suit is fundamentally on behalf of the entire body of person who are interested in the trust. It is for the vindication of public rights. A with under Section 92 of the Code is a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. 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. It is only the allegations in the plaint that should be looked into in the first instance, to see, whether the suit falls within the ambit of Section 92. [Christopher Karkada & Ors Church of South India, Madras & Ors. [RFA No. 280/2011, DD 19.11.2011]. ILR 2012 KAR 725: 2012 (1) KCCR 503 (DB).]

The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of the interests of the public trusts. First and the foremost requirement for an application under Section 92 is, the plaintiffs should bring the suit to vindicate the right of the public. In the suit, if they are seeking a declaration of their individual or personal rights or 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 of CPC. In order to find out whether the plaintiff, in such a suit, is vindicating the right of the public or his personal right, what are to be seen are, allegations in the plaint. In the first instance, if the allegations in the plaint do not indicate that the plaintiffs have approached the Court to vindicate the rights of the public, on the analogy of Order 7 Rule 11 of CPC, the plaint can be rejected on the ground that the plaint does not disclose a cause of action. Further, However, if it is not rejected and enquiry is conducted, evidence is taken and thereafter it is found that breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason, but is made only with a view to bring the suit under the Section, then the suit purported to be brought under Section 92 must be dismissed. 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. [Shivananda C.R. & Anr Sri. H.C. Gurusiddappa & Ors. [RFA No. 667/2001 C/w etc, DD 30.9.2011]. ILR 2011 KAR 4624: 2012 (2) KCCR 1186 (DB).]

Framing of Scheme by Court

The District Court would under the Code of Civil Procedure be the original Court in regard to the framing of Schemes. The Court has discretion under Section 92 of the Code of Civil Procedure to frame a scheme in such a manner as commends itself to the Court so long as the scheme fulfills the objects sought to be achieved by the Constitution. The Court framing the Scheme which admittedly acts as a Court of law at the time of framing the Scheme may instead of making a provision for appointment or removal of trustees for all time to come, may reserve to itself the power to appoint or remove trustees, as and when occasion may arise. When pursuant to such a power, the Court is approached for the purpose of appointing or removing trustees, the Court certainly acts as a Court of Law and not as a persona designate. Same would be the position in case of other matters relating to the administration of the charity. The Court framing the scheme reserves to itself any power in regard to matters arising in the course of the administration of the charity or for the purpose of effectively administering the charity and, there is no enlargement of its judicial power by the provision reserving such power. Just as the District Court could reserve to itself power in relation to various matters arising in the administration of the charity, the High Court also can reserve such powers either to itself or to the District Court, from whose decree the appeal is brought before it. When the High Court reserves such powers to itself, it is clear that there is no enlargement of the jurisdiction of the High Court as a result of the decree passed by it. Equally, there is no enlargement of the jurisdiction of the District Court when the High Court reserves such powers to the District Court. The District Court which is the original Court, framing the Scheme is empowered to implement the Scheme or to work out the Scheme as and when occasion arises. The question, whether a decree framing a scheme for a charitable trust is executable or not, must depend on the language and on the scope of the decree or of that particular part of the decree in respect of which the question arises. The defendant Nos. 1, 3 and 40 or any other person, in possession of these trust properties, are not entitled to continue in possession of the property and that they have to deliver the property to the trustees for the benefit of the beneficiaries. Defendants Nos. 3 and 40 are ineligible to be trustees and to be trustees and to manage these properties, though they have been managing these properties in question as de facto trustees or trustees de son tort. [Christopher Karkada & Ors Church of South India, Madras & Ors. [RFA No. 280/2011, DD 19.11.2011]. ILR 2012 KAR 725: 2012 (1) KCCR 503 (DB).]

Leave to sue

Grant of leave to institute suit is a pre-condition to maintain suit and cannot be taken as mere formality but requires serious considerations. Unless plaintiffs indicate clearly circumstances of mal-administration; diverting of trust properties for personal benefits; committing any devastative act against interest of trust or exploiting assets of trust for personal gain by trustees, machinery of administration provided under implied or express trust shall not be interfered with. [Donor Bellur Thammaiah's Charities & Swamy Sri Ramdas Melu Sakkare Uppara Vidya, Vardhaka Trust, Mysore & ors. vs. G. M. Gadkar & ors. [C.R.P.No.258/2006, DD 26.2.2010]. 2010 (4) AIR Kar R 306.]

CONCLUSION

Rightly observed in the case of Vidyodaya Trust v. Mohan Prasad & Ors. (2008), the objective of section 92 of the CPC for the protection and preservation of a public or charitable trust from undergoing harassment suits against them. Public trust of religious or charitable purpose engage in the benefit and welfare of the public, and shall not be taken advantage of due to its essence.