ASHOK KUMAR GUPTA & ANR.versusM/S SITALAXMI SAHUWALA MEDICAL TRUST AND OTHERS

                         [2020] 2 S.C.R. 983                                983


                 ASHOK KUMAR GUPTA & ANR.                                   A
                                   v.
     M/S SITALAXMI SAHUWALA MEDICAL TRUST AND
                      OTHERS
                   (Civil Appeal No. 1917 of 2020)                          B
                          MARCH 03, 2020
      [UDAY UMESH LALIT AND VINEET SARAN, JJ.]
        Code of Civil Procedure, 1908 – s.92 – Suit filed by appellants-
plaintiffs (husband and wife) who are Trustees of 1st defendant
                                                                            C
Trust, a Public Charitable Trust – Four trustees under the Deed of
Trust are both the plaintiffs and defendant nos.2 & 3 (parents of
1st plaintiff and his brother-4th defendant) – Suit was filed for
framing scheme for administration of the Trust – It was inter alia
pleaded that 1st plaintiff is a qualified surgeon and the 4th
defendant who did not have any medical qualification/expertise to           D
run the hospital and manage the Trust had been in control of the
Trust and the objects of the Trust were not getting fulfilled; and that
the plaintiffs were sought to be removed from the board of trustees
– Along with the aforesaid Suit, plaintiffs also filed application
seeking leave to institute the suit u/s.92, CPC – Leave granted
                                                                            E
u/s.92 – Respondent no.2 sought revocation – Leave granted not
revoked – Respondents filed revision petition – Allowed – Held:
Three conditions are required to be satisfied for invoking s.92 –
Admittedly, the concerned Trust is created for public purposes of
charitable nature – Also, plaint made out a case that the trust was
being run as a private family trust; its object was being ignored;          F
and that there was necessity to frame a proper scheme for its
administration through competent persons – Further, what was
complained was that the appellants were removed from the board of
trustees and none of the present trustees are from medical profession
– It is in that context that the principal relief prayed was for framing
                                                                            G
of a proper scheme of administration and appointing trustees
including the first plaintiff along with other trsutees from medical
profession and from the public – Relief prayed for cannot be said
to be in the nature of vindicating personal rights of the first plaintiff
– Aforesaid relief was prayed so that the Trust which was founded
                                                                            H
                                  983
984            SUPREME COURT REPORTS                       [2020] 2 S.C.R.


A     with the object of making available medical and related services to
      the general public could achieve its objectives through trustees who
      are well qualified to undertake such responsibility – If in respect of
      a trust which had set up a hospital, a request was made for framing
      of a proper scope of administration by appointing trustee from
      medical profession and from public for proper administration of
B
      the Trust, the matter would definitely fall within the scope of s.92 –
      View taken by High Court is set aside – Decision of District Court
      restored.
            Allowing the appeal, the Court
C            HELD: 1.1 Three conditions are required to be satisfied in
      order to invoke Section 92 of the Code and to maintain an action
      under said Section, namely, that the Trust in question is created
      for public purposes of a charitable or religious nature; there is a
      breach of trust or a direction of Court is necessary in the
      administration of such a Trust; and the relief claimed is one or
D     other of the reliefs as enumerated in said Section. Consequently,
      if any of these three conditions is not satisfied, the matter would
      be outside the scope of said Section 92. In the instant case, it is
      admitted that the concerned Trust is created for public purposes
      of charitable nature. The matter on that front is beyond any doubt.
E     As regards the second condition, paragraph 21 of the plaint makes
      out a case that a public charitable trust was being run as a private
      family trust; that the object of the Trust was being ignored; and
      that there was necessity to frame a proper scheme for
      administration of the Trust through competent persons. The
      second condition also stands satisfied. Insofar as the third
F     condition is concerned, the reliefs prayed for are diverse which
      include inter alia framing of a proper scheme of administration,
      for removing certain trustees and appointment of fresh trustees
      from medical profession and from public and for other ancillary
      reliefs. [Paras 13, 14][995 E-H; 996 A-D]
G           1.2 In the present matter, the appellant No.1-first plaintiff,
      as a qualified medical professional, was associated with the Trust
      and what is being complained is that the appellants have been
      removed from the board of trustees and none of the present
      trustees are from medical profession. It is in that context that
H     the principal relief prays for framing of a proper scheme of
  ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                       985
            MEDICAL TRUST AND OTHERS

administration and for appointing trustees from medical                    A
profession and from the public for proper and effective
administration of the Trust. The expression “including the first
plaintiff” has to be understood in the context that the first plaintiff,
as a qualified medical professional, was associated with the Trust
right since the inception but now stands removed. The relief
                                                                           B
prayed for cannot be said to be in the nature of vindicating personal
rights of the first plaintiff. What was prayed was for framing of a
proper scheme of administration so that the Trust which was
founded with the object of making available medical and related
services to the general public could attain and achieve all its
objectives through trustees who are themselves well qualified to           C
undertake such responsibility. The substance of the matter
discernible from para 21 as well as the principal relief claimed in
the suit is quite clear that what was being agitated were the public
rights. If in respect of a trust which had set up a hospital, a request
was made for framing of a proper scope of administration by
                                                                           D
appointing trustee from medical profession and from public for
proper and effective administration of the Trust, the matter would
definitely fall within the scope of Section 92 of the Code. The
view taken by the High Court is set aside and the decision arrived
at by the District Court is restored. [Paras 16-18][999 E-H; 1000-
A; C-D]                                                                    E
      Chairman Madappa v. M.N. Mahanthadevaru and
      Others [1966] 2 SCR 151 – followed.
      Bishwanath and Anr. v. Shri Thakur Radhaballabhji &
      Ors. [1967] 2 SCR 618; Sugra Bibi v. Hazi Kummu Mia
      [1969] 3 SCR 83 – relied on.                                         F

                        Case Law Reference
[1966] 2 SCR 151                   followed            Para 11
[1967] 2 SCR 618                   relied on           Para 12 (a)
                                                                           G
[1969] 3 SCR 83                    relied on           Para 13 (b)
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1917
of 2020.
      From the Judgment and Order dated 30.04.2019 of the High Court
of Judicature at Madras in C.R.P. (PD) No. 2708 of 2013.                   H
986            SUPREME COURT REPORTS                               [2020] 2 S.C.R.


A           K.V. Vishwanathan, Guru Krishna Kumar, Sr. Advs., Pradeep
      Aggarwal, Lal Pratap Singh, Shobhit Tiwari, Umesh Pratap Singh, Arjun
      Aggarwal, Yash Raj, Apoorv Singhal, Ms. Ruchi Kohli, Sridhar,
      B. Ragunath, Arun Mozhi, Vijay Kumar, Advs. for the appearing parties,.
            The Judgment of the Court was delivered by
B           UDAY UMESH LALIT, J.
            1. Leave granted.
            2. This appeal challenges the final judgment and order dated
      30.04.2019 passed by the High Court of Judicature at Madras in C.R.P.
C     (PD) No.2708 of 2013.
             3. Original Suit No.566 of 2012 was filed by the present appellants
      in the Court of the District Judge, Coimbatore stating basic facts as
      under:-
            “III. The 2nd plaintiff is the wife of the 1st plaintiff. The 1st plaintiff
D           is the elder son of defendants 2 & 3. The 4th defendant is the
            younger son of defendants 2 & 3 and the 5th defendant is his
            wife. The 6th defendant is the daughter of defendants 4 & 5. The
            7th defendant is son in law of the family and he has married the
            sister of 1st plaintiff and the 4th defendant. The plaintiffs are
            Trustees of the 1st defendant Trust and are persons having interest
E
            in the affairs of the Trust and are filing the present suit for framing
            a scheme for the administration of the 1st defendant Trust, which
            is a Public Charitable Trust.
            IV) The 2nd defendant settled down in Coimbatore in 1959 and he
            was managing the firm called M/s India Roller Flour Mills. The
F
            1st plaintiff was academically a good student and he secured
            admission on merit in medical college and he graduated from
            Coimbatore Medical College completing MBBS. He pursued his
            studies further in post-graduation and completed his M.S. from
            Madras Medical College, Chennai, and is thus a qualified surgeon
G           who has graduated from the Madras University.
            V) Taking note of his future and his carrier as a Doctor, the 2nd
            defendant decided to construct a hospital, so as to enable the 1st
            plaintiff to carry on his profession. However, the hospital was
            envisaged as a charitable hospital. The 2nd defendant as author of
H           the trust established the 1st defendant Trust, M/s Sitalaxmi
ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                           987
  MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

   Sahuwala Medical Trust, under registered Trust Deed dated                 A
   09.04.1980. A copy of Deed of Trust is produced herewith and
   the original is with the 2nd defendant as also the rest of the
   documents.
   VI) The objects of the Trust are set out in Clause I which briefly
   are to establish, maintain and render financial assistance and            B
   donations by establishing and assisting running of a hospitals,
   surgical homes; health trainings, nursing homes, maternity homes
   and dispensaries and to equip the hospitals and provide accessories
   and instruments etc.
   VII) The plaintiff respectfully states that the 1st defendant Trust       C
   was established with the aim and object of providing medical aid
   to the needy citizens. This was contemplated taking note of the
   fact that the 1st plaintiff who became a qualified medical practitioner
   would look after the institution and administer the hospital where
   a part of the hospital can be run for charity and the 1st plaintiff
   can have his consultations and in patients admitted to serve the          D
   people in society.
   VIII) It is significant that the four trustees appointed under the
   Deed of Trust are both the plaintiffs and defendants 2 & 3 and
   they have been appointed for life. The 2 nd defendant is the
   Managing Trustee and the 1st plaintiff was appointed as the Joint         E
   Managing Trustee, vide Clause 10.
   IX) There was an amendment to the Trust Deed dated 09.04.1980
   by another deed dated 23.03.1981. In addition to the objects, further
   objects for providing free education and conducting orphanages
   and help poor people perform marriages were introduced to the             F
   objects. But nothing of these additional charities were ever
   performed.
   X) By another deed dated 15.03.1985, further objects were
   introduced to the Deed of Trust which have no relevance to the
   original objects. There was also an amendment to the Trust Deed           G
   by a registered deed dated 24.11.1986 providing for borrowing
   powers.
   XI) The Trust purchased land measuring 33 Cents in Cowly Brown
   Road by a sale deed dated 08.04.1985 and a hospital was
   constructed and it was established by the 1st defendant trust in          H
988            SUPREME COURT REPORTS                             [2020] 2 S.C.R.


A           1987-88. The 1st plaintiff was looking after administration of this
            hospital till the year 2003-04. The subsequent turn of events during
            the past one decade are narrated herein below……..”.
             4. The events after 2003-04 were then adverted to, and it was
      elaborated that the 4th defendant – brother of appellant No.1 who did
B     not have any medical qualification or any expertise to run the hospital
      and manage the Trust had been in control of the Trust and the objects of
      the Trust were not getting fulfilled; and that the appellants were sought
      to be removed from the board of trustees. Finally, it was stated:-
            “XXI. The plaintiffs submit that time has come for this Honorable
C           Court to interfere with the affairs of the 1st defendant Trust and
            to frame a proper scheme for administration of the Trust through
            competent men, so that the objects of the Trust are implemented.
            The defendants are converting the public charitable trust into a
            private family trust with rubber stamp trustees so as to enable
            them to make a living out of the trust properties and income from
D           the Trust. The defendants are guilty of ignoring the objects of the
            Trust and in misappropriating the income earned by the Trust by
            suppressing its real income by converting the hospital into a
            business venture. A scheme requires to be framed for the following
            reasons:
E           1. The administration of the Trust should be in proper hands and
               the hospital should be administered by competent qualified
               Doctors.
            2. No charity is performed by the 1st defendant Trust and records
               are created and fabricated for the said purpose for the past 5
F              years. No free medical aid is provided and allowed to be
               provided. Only the 1st plaintiff gives free consultation to patients.
            3. No regular meeting of the Trust are conducted and no
               procedures are followed for proper conduct of meetings. No
               resolutions are passed and minutes are not recorded.
G
            4. The real income derived by the Trust is not accounted and this
               is siphoned off for the personal use by Defendants 2 to 5.
               Cash collected is not deposited immediately on the following
               day but used by the 4th defendant.
            5. Trustees are appointed and removed according to the whims
H              of defendants 2 & 4 and no democratic system is followed.
  ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                          989
    MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

      6. Complaints are frequently emerging from Doctors and Patients         A
         that the 4th defendant is demanding and receiving kickback of
         various amounts involved and the 1st plaintiff has been informed
         to watch out the activities of the 4th defendant and to direct
         him to mend his ways, to preserve the reputation of hospital.
      7. The defendants do not come and supervise the hospital on a           B
         day to day basis. The 1st plaintiff is prevented from taking part
         in the administration and management of the hospital. Proper
         accounts are not maintained.
      8. The defendants are thus guilty of mismanagement,
         misappropriation and they are guilty of committing breach of         C
         Trust and they are not fit to hold office. The 8th defendant is
         the Banker for the 1st defendant Trust and the 1st defendant is
         operating its accounts with the 8th defendant. The 8th defendant
         is thus a proper party as the operation of account and
         withdrawals can be.”
                                                                              D
       5. In the circumstances, the appellants prayed for following reliefs
in said Suit:-
      “a) By framing a proper scheme of administration for 1st Defendant
      Trust namely M/s Sitalaxmi Sahuwala Medical Trust by removing
      the defendants 2 to 6 and appointing fresh trustees including the       E
      1st plaintiff and other trustees from the medical profession and
      from the public for proper and effective administration of the 1 st
      defendant Trust by vesting the properties of the 1st defendant trust
      with the new trustees to be appointed.
      b) Declaring that the appointment of the 6th defendant as trustee       F
      is void and illegal and for consequential permanent injunction to
      restrain the 6th defendant from functioning as a Trustee of the 1st
      defendant trust.
      c) For declaration that the procedure adopted to remove the
      plaintiffs from the Trust Board is void, illegal and mala fide and
                                                                              G
      for consequential permanent injunction restraining the defendants
      2 to 6 from removing the Plaintiffs from the Trust Board or
      reconstructing the Trust Board without leave of the Court.
      d) For permanent injunction restraining Defendants from
      appointing the 7th defendant as a Trustee and to restrain the 7th
      defendant from acting as Trustees of the 1st defendant Trust.           H
990            SUPREME COURT REPORTS                          [2020] 2 S.C.R.


A           e) Directing the accounts of the 1st defendant Trust to be audited
            by an independent Chartered Accountant and to surcharge
            defendants 2 & 4 to pay up to the 1st defendant Trust any amount
            that may be found due from them to the Trust.
            f) Appoint a Receiver to take charge of the assets of the 1st
B           Defendant Trust and administer the same and entrust them to the
            Trustees appointed as per Scheme.
            g) Award cost of the suit to the plaintiff.
           h) Grant such other and further relieves as this Honourable Court
      may deem fit and proper in the facts and circumstances of the case.”
C
             6. Along with the aforesaid Suit, IA No.1416 of 2012 was filed by
      the appellants seeking leave to institute the Suit under Section 92 of the
      Code of Civil Procedure, 1908 (‘the Code’, for short). By order dated
      31.07.2012, the District Judge, Coimbatore granted leave under Section
      92 of the Code. Soon thereafter Respondent No.2 herein filed IA No.1435
D     of 2012 seeking revocation of leave granted to the appellants vide
      aforesaid order dated 31.07.2012. It was stated, inter alia, that neither
      the application nor an affidavit in support of the application disclosed
      any proper reason for grant of such leave. The matter was contested.
      The District Court vide order dated 27.11.2012 held that the appellants
E     had made out a prima facie case and there was no necessity to revoke
      the leave already granted. The District Court, thus, dismissed IA No.1435
      of 2012 holding inter alia:
            “18. In Para 18 of the plaint there is an allegation that the 4
            defendant runs the hospital of the trust to earn his livelihood and
F           siphoning off the income for his personal use. There was allegation
            to the effect that no meeting of trustees has been held for the past
            many years.
                  The defendants are not competent and qualified to
            administer the hospital. In para 9 it was alleged that the 6th
            defendant was inducted as a trustee in violation of the provisions
G
            contained in the trust deed. No annual meeting was held for passing
            accounts and for appointment of auditor.
                                     … ……
            20. … In the case at hand, admittedly the 1st plaintiff is a doctor.
H           His qualification is Master of Surgery. 2nd plaintiff is his wife.
     ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                          991
       MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

         They are first trustees of the trust. It can be safely held that they   A
         are having interest in the trust. Therefore it cannot be said that
         the suit has been filed by irresponsible persons. Admittedly the
         trust was created for public purposes. It has been brought to the
         notice of the Court that the objects of the original trust have been
         amended without any authority. The validity of the amendment
                                                                                 B
         can be gone into after trial. Likewise the amendment with regard
         to appointment of trustees can also be decided after conclusion of
         trial. In “V.Rajasekaran vs. M. Rajendran”1 it has been held
         that:
             “Unless a strong case is made out, ordinarily the Court should
             grant leave so that the question can be considered in depth         C
             after evidence is recorded.”
                                   ………
         21. It is well settled that public charity is perpetual and the Court
         is the guardian of a charity. Having regard to the whole facts and      D
         circumstances of the case, I hold that the plaintiffs have made out
         a prima-facie case. Therefore, the leave granted by this Court to
         institute the suit cannot be revoked. The point is answered
         accordingly.”
       7. The respondents challenged the aforesaid decision of the District      E
Court by filing Civil Revision being C.R.P. (PD) No.2708 of 2013 before
the High Court. Soon thereafter another suit being OS No.1415 of 2013
was filed by the appellants along with their two sons seeking a decree
for declaration that the amendment made under the Supplemental Deed
of Trust dated 10.08.2012 be declared void and illegal. We are not
presently concerned with said OS No.1415 of 2013.                                F
       8. The aforesaid Civil Revision was allowed by the High Court
vide its judgment and order dated 30.04.2019 accepting the submission
that the suit as framed was essentially to vindicate the private rights of
the appellants and that the leave under Section 92 of the Code could not
have been granted. It was observed by the High Court as under:                   G
         “22. From the above judgments, it is well settled that the main
         purpose of provision under Section 92 of CPC is to give a
         protection to public trust or charitable or religious nature, from
1
    (2007) I MLJ 683                                                             H
992      SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A     being subjected to harassment by suits being filed against them
      and the Courts also to see that there is a prima facie case either
      breach of trust or of necessity of obtaining direction from the
      Court on the basis of allegation made in the plaint. If the allegation
      of breach of trust is not substantiated and the very foundation of
      the suit is based on the private rights, leave cannot be granted
B
      under Section 92 CPC. Similarly, Court can also go beyond the
      relief and have regard to the capacity in which the plaintiff has
      sued on the purpose which the suit was brought. Mere colour of
      legitimacy was sought to be given by projecting as if the suit was
      vindicating the public rights, leave cannot be granted. From the
C     judgments of the Apex Court only the allegation in the plaint that
      should be looked into at the first instance whether the suit fall
      within the ambit of Section 92.
      23. In the light of the above settled position now it has to be seen
      whether the suit has been filed to vindicate the public right or
D     private right. No doubt the Trust is charitable trust. Only the
      allegations in the plaint to be looked into find out as to whether the
      suit is for vindicating the private rights or public right. On entire
      perusal of the plaint para 5 of the plaint, it is the contention of the
      plaintiff that the 2nd defendant has decided to construct a hospital
      so as to enable the 1st plaintiff to carry on his profession. However,
E     the hospital was envisaged as a Charitable hospital. In para 7 of
      the plaint it is the contention of the plaintiff that the 1st Plaintiff
      can have his consultations and in patients admitted to serve the
      people in society. The plaintiff was looking after the administration
      of the hospital till the year 2003 and 2004. In para 11 and 12 it is
F     pleaded how the 4th defendant was inducted into the Trust and in
      para 13 it is pleaded as if 4th defendant slowly started to usurp
      powers and become a Joint Managing Trustee, though the plaintiff
      was looking after the administration of the hospital till the year
      2003-2004. It is further alleged in para 13 that the 4th defendant
      has not allowed the defendant 2 and 3 to take independent decision.
G     In para 14 it is stated that the 4th defendant is receiving part of the
      rent by cash and using it for his expenses. In para 15 of the plaint
      it is the contention of the plaintiff that 4th defendant has been
      looking after the affairs of the hospital which was intended for
      medical practice of the first plaintiff. In fact, this allegation is
H     contrary to earlier pleadings that he was managing the hospital in
  ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                           993
    MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

      2003-2004. The entire pleadings clearly indicate that the defendants     A
      have inducted the 3rd defendant’s daughter and wife and there
      was also an agenda circulated by communication dated 23.07.2012
      for the meeting proposed to be held on 09.08.2012.”
      9. In this appeal challenging the view taken by the High Court, we
heard Mr. K.V. Vishwanathan, learned Senior Advocate for the appellants        B
and Mr. Guru Krishna Kumar, learned Senior Advocate for the
respondents.
      10. The basic issue involved in the matter is whether the appellants
were rightly granted leave under Section 92 of the Code by the Trial
Court. We may at the outset quote relevant provisions of Section 92,           C
which are to the following effect:-
      “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        D
      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      E
      to obtain a decree–
          (a)   removing any trustees;
          (b)   appointing a new trustee;
          (c)   vesting any property in a trustee;                             F
          (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;                              G

          (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     H
                be let, sold, mortgaged or exchanged;
994                SUPREME COURT REPORTS                           [2020] 2 S.C.R.


A                  (g)   settling a scheme; or
                   (h)   granting such further or other relief as the nature of the
                         case may require.
               (2) Save as provided by the Religious Endowments Act, 1863 (20
               of 1863), or by any corresponding law in force in the territories
B              which, immediately before the 1st November, 1956, were comprised
               in Part B States, no suit claiming any of the reliefs specified in
               sub-section (1) shall be instituted in respect of any such trust as is
               therein referred to except in conformity with the provisions of
               that sub-section.
C              (3) ……….”
             11. While considering the scope of Section 92 (1), as it existed
      then, a Constitution Bench of this Court observed in Chairman Madappa
      vs. M.N. Mahanthadevaru and Others2, as under:-

D              “… Section 92(1) provides for two class of cases, namely, (i)
               where there is a breach of trust in a trust created for public
               purposes of a charitable or religious nature, and (ii) where the
               direction of the court is deemed necessary for the administration
               of any such trust. The main purpose of Section 92(1) is to give
               protection to public trusts of a charitable or religious nature from
E              being subjected to harassment by suits being filed against them.
               That is why it provides that suits under that section can only be
               filed either by the Advocate General, or two or more persons
               having an interest in the trust with the consent in writing of the
               Advocate General. The object clearly is that before the Advocate
F              General files a suit or gives his consent for filing a suit under
               Section 92, he would satisfy himself that there is a prima facie
               case either of the each of trust or of the necessity for obtaining
               directions of the court. The reliefs to be sought in a suit under
               Section 92(1) are indicated in that section and include removal of
               any trustee, appointment of a new trustee, vesting of any property
G              in a trustee, directing a removed trustee or person who has ceased
               to be a trustee to deliver possession of trust property in his
               possession to the person entitled to the possession of such property,
               directing accounts and enquiries, declaring what proportion of the
               trust-property or of the interest therein shall be allocated to any
      2
H         (1966) 2 SCR 151
     ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                              995
       MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

         particular object of the trust, authorisation of the whole or any           A
         part of the trust-property to be let, sold, mortgaged or exchanged,
         or settlement of a scheme. The nature of these reliefs will show
         that a suit under Section 92 may be filed when there is a breach
         of trust or when the administration of the trust generally requires
         improvement. … …”
                                                                                     B
         12. The statement of law so laid down was reiterated:-
      A) In Bishwanath and anr. vs. Shri Thakur Radhaballabhji
& ors.3
         “It is settled law that to invoke Section 92 of the Code of Civil
         Procedure, 3 conditions have to be satisfied, namely, (i) the trust         C
         is created for public purposes of a charitable or religious nature;
         (ii) there was a breach of trust or a direction of court is necessary
         in the administration of such a trust; and (iii) the relief claimed is
         one or other of the reliefs enumerated therein. If any of the 3
         conditions is not satisfied, the suit falls outside the scope of the        D
         said section. … …”
         B) In Sugra Bibi vs. Hazi Kummu Mia4
         “It is evident that this section has no application unless three
         conditions are fulfilled: (1) the suit must relate to a public charitable
         or religious trust, (2) the suit must be founded on an allegation of        E
         breach of trust or the direction of the Court is required for
         administration of the trust, and (3) the reliefs claimed are those
         which are mentioned in the section.”
      13. Three conditions are therefore, required to be satisfied in order
to invoke Section 92 of the Code and to maintain an action under said                F
Section, namely, that
       (i) the Trust in question is created for public purposes of a charitable
or religious nature;
      (ii) there is a breach of trust or a direction of Court is necessary in
the administration of such a Trust; and                                              G

       (iii) the relief claimed is one or other of the reliefs as enumerated
in said Section.

3
    (1967) 2 SCR 618
4
    (1969) 3 SCR 83                                                                  H
996               SUPREME COURT REPORTS                          [2020] 2 S.C.R.


A           Consequently, if any of these three conditions is not satisfied, the
      matter would be outside the scope of said Section 92.
             14. In the instant case, it is admitted that the concerned Trust is
      created for public purposes of charitable nature. The matter on that
      front is beyond any doubt. As regards the second condition, paragraph
B     21 of the plaint makes out a case that a public charitable trust was being
      run as a private family trust; that the object of the Trust was being
      ignored; and that there was necessity to frame a proper scheme for
      administration of the Trust through competent persons. The second
      condition also stands satisfied.
C             Insofar as the third condition is concerned, the reliefs prayed for
      are diverse which include inter alia framing of a proper scheme of
      administration, for removing certain trustees and appointment of fresh
      trustees from medical profession and from public and for other ancillary
      reliefs. It is true that the reliefs prayed for include a relief where the
      first plaintiff is also being sought to be included as one of the trustees
D     along with other trustees from medical profession and from public, for
      proper and effective administration of the Trust. A question, therefore
      arises whether such relief along with other averments in the plaint would
      take the matter out of the scope of the Section 92 of the Code or not.
              15. In Sugra Bibi4, the Wakf was created substantially for a public
E     purpose and the reliefs prayed for in the suit inter alia, were i) for
      removal of the defendant from the office of Mutwalli and for appointment
      of the son of the plaintiff in his place and ii) for appointment of a receiver
      till said son attained majority. While considering the facts where the
      creation of Wakf was substantially for a public purpose, this Court
F     observed:-
               “… … The proper test for holding whether the Wakf would fall
               within the purview of Section 92, Civil Procedure Code is to
               examine whether the Wakf has been created substantially for a
               public purpose. Applying the test to the present case, we are of
G              opinion that the Wakf created by Haji Elahi Bux on November 18,
               1936 falls within the purview of Section 92, Civil Procedure Code.
               This view is borne out by the decision of the Calcutta High Court
               in S. Massirat Hossain v. Hossain Ahmad Chowdhury5. That
               case related to a Wakf estate, the net annual income of which
      5
H         1897 SCC OnLine Cal 42 : (1896-97) 1 CWN 345
     ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                              997
       MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

          was about Rs 1300 and out of this a sum of Rs 353 was set apart            A
          for public purposes of a charitable or religious nature. It was held
          by the learned Judges that the amount by no means was a trifling
          or a disproportionate provision in favour of the public and
          consequently the suit was maintainable under Section 92 of the
          Civil Procedure Code. Reliance was placed by the High Court in
                                                                                     B
          support of its decision upon the pronouncement of the Judicial
          Committee in Vaidya Nath Aiyyar v. Swaminatha Ayyar6 where
          the founder of the trust directed by his will that two-thirds of the
          income of his property would go to his wife and the remaining
          one-third would go first towards the discharge of certain debts
          and thereafter to establish a Chatram for the feeding of the poor.         C
          There was a further provision that after the wife’s death, two-
          thirds of the income given to her would be applied to charity and
          one-third to the members of the family. On these facts the Judicial
          Committee agreed with the findings of the court below that the
          Chatram so established was a public trust.”
                                                                                     D
       In the context of the relief prayed for, the submission that “the
Suit was brought not to vindicate or to establish a right of the public
institution i.e., the trust, but to remedy an infringement of an individual
right or to vindicate the private right of the appellant”, was considered
as under:-
                                                                                     E
          “… …The reliefs prayed for are: (1) removal of the respondent
          from the office of Mutwalli and appointment of Soleman, appellant’s
          son, as Mutwalli in his place, and (2) till the said Soleman attains
          majority appointment of a Receiver for the management of the
          Wakf estate. It is true that the facts that a suit relates to public
          trust of a religious or charitable nature and the reliefs claimed fall     F
          within clauses (a) to (h) of sub-section (1) of Section 92 Civil
          Procedure Code would not by themselves attract the operation of
          the section, unless the suit is of a representative character instituted
          in the interests of the public and not merely for vindication of the
          individual or personal rights of the plaintiff. As was stated by           G
          Woodroffe, J. in Budreedas v. Choonilal7:
             “It is obvious that the Advocate-General, Collector or other
             public officer can and do sue only as representing the public,
6
    (1923-24) 51 I.A. 282
7
    I.L.R. 33 Cal. 789                                                               H
998              SUPREME COURT REPORTS                            [2020] 2 S.C.R.


A                 and if, instead of these officers, two or more persons having
                  an interest in the trust sue with their consent, they sue under a
                  warrant to represent the public as the objects of the trust. It
                  follows from this, that when a person or persons sue not to
                  establish the general rights of the public, of which they are a
                  member or members, but to remedy a particular infringement
B
                  of their own individual right, the suit is not within or need not
                  be brought under the section.”
              This principle was accepted as sound by a Full Bench of the
              Madras High Court in Appanna v. Narasigna8. In that case, a
              suit was instituted by a trustee of a public religious trust against a
C             co-trustee for accounts and the Full Bench decided that it did not
              come within Section 92 of the Civil Procedure Code, the claim
              being to enforce a purely personal right of the plaintiff as a trustee
              against his co-trustees. The same view was taken by the Madras
              High Court in The Tirumalai-Tirupati Devasthanams Committee
D             v. Udiayar Krishnayya Shanbhagal9. In this case the general
              trustees of a public temple filed a suit against the trustees for the
              recovery of moneys which the latter had collected on behalf of
              the former praying for a decree directing accounts and inquiries.
              It was held that the right to collect moneys was entirely
              independent of Section 92 of the Civil Procedure Code and no
E             sanction of the Advocate-General was necessary for the institution
              of the suit. Leach, C.J. who delivered the judgment of the Court
              observed as follows:
                  “After hearing the arguments of learned Counsel in the present
                  case we can see no reason for disagreeing with anything said
F                 in Shanmukham Chetty v. Govinda Chetty10. On the other
                  hand we find ourselves in full agreement with the opinion of
                  Varadachariar, J. that, 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
G                 the purpose for which the suit is brought. The judgment of the
                  Privy Council in Abdur Rahim v. Mahomed Barkat Ali11 lends

      8
        I.L.R. 45 Mad. 113
      9
        I.L.R. [1943] Mad. 619
      10
         I.L.R. 1938 Mad. 39
      11
         (1927) I.L.R. 55 Cal. 519 (P.C.)
H
     ASHOK KUMAR GUPTA & ANR. v. M/S SITALAXMI SAHUWALA                              999
       MEDICAL TRUST AND OTHERS [UDAY UMESH LALIT, J.]

              no support for the opinion expressed by the Full Bench in Janki        A
              Bai v. Thiruchitrambala Vinayakar12”.
          Applying the principle laid down in these authorities, we are of
          opinion that in the present case the suit brought by the appellant
          must be treated as a suit brought by her in a representative capacity
          on behalf of all the beneficiaries of the Wakf. As we have already         B
          stated, the Wakf created by Haji Elahi Bux was a Wakf created
          for a public purpose of charitable or religious nature. The reliefs
          claimed by the appellant in the suit are not reliefs for enforcing
          any private rights but reliefs for the removal of the defendant as
          trustee and for appointment of a new trustee in his place. The
          reliefs asked for by the appellant fall within clauses (a) and (b) of      C
          Section 92(1) of the Civil Procedure Code and these reliefs claimed
          by the appellant indicate that the suit was brought by the appellant
          not in an individual capacity but as representing all the beneficiaries
          of the Wakf estate. … …”
                                                             (emphasis added)        D

       16. Thus, though the reliefs prayed for removal of the defendant
from the office of Mutwalli, for appointment of the son of the plaintiff
and for appointment of receiver, in Sugra Bibi4, this Court found that
the suit was brought by the plaintiff in representative capacity.
                                                                                     E
         In the present matter, the appellant No.1-first plaintiff, as a qualified
medical professional, was associated with the Trust and what is being
complained is that the appellants have been removed from the board of
trustees and none of the present trustees are from medical profession.
It is in that context that the principal relief prays for framing of a proper
scheme of administration and for appointing trustees from medical                    F
profession and from the public for proper and effective administration of
the Trust. The expression “including the first plaintiff” has to be
understood in the context that the first plaintiff, as a qualified medical
professional, was associated with the Trust right since the inception but
now stands removed. The relief prayed for cannot be said to be in the                G
nature of vindicating personal rights of the first plaintiff. What was prayed
was for framing of a proper scheme of administration so that the Trust
which was founded with the object of making available medical and
related services to the general public could attain and achieve all its
12
     (1935) I.L.R. 58 Mad. 988 (F.B.)
                                                                                     H
1000             SUPREME COURT REPORTS                           [2020] 2 S.C.R.


 A     objectives through trustees who are themselves well qualified to undertake
       such responsibility.
              17. Viewed thus, the conclusion arrived at by the Trial Court in
       para 21 as quoted hereinabove, was quite correct and the matter did not
       call for any interference by the High Court. It is true that certain paras
 B     of the plaint do indicate the grievances that the appellant were completely
       side-lined while the control of the Trust was in the hands of the concerned
       defendants. The allegations highlight that the Trust was not being
       managed properly, was not being managed by medical professionals and
       there was siphoning of funds. However, the substance of the matter
       discernible from para 21 as well as the principal relief claimed in the suit
 C     is quite clear that what was being agitated were the public rights. If in
       respect of a trust which had set up a hospital, a request was made for
       framing of a proper scope of administration by appointing trustee from
       medical profession and from public for proper and effective administration
       of the Trust, the matter would definitely fall within the scope of Section
 D     92 of the Code.
              18. In the circumstances, we allow this appeal, set aside the view
       taken by the High Court and restore the decision arrived at by the District
       Court. The appeal stands allowed without any order as to costs.

 E
       Divya Pandey                                                  Appeal allowed.




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