Holding

The Court held that a society may be treated as a constructive trust for the purposes of Section 92 CPC, the plaintiffs satisfy the statutory conditions, and the appeal is dismissed.

Summary

Operation Asha, a not‑for‑profit society registered under the Societies Registration Act, 1860, provides health services to the under‑privileged. After the society’s CEO terminated co‑founder Dr. Shelly Batra, she and her mother filed a suit under Section 92 of the Code of Civil Procedure alleging financial impropriety, breach of the society’s by‑laws and seeking declaration, injunction, rendition of accounts and removal of board members. The Single Judge of the Delhi High Court granted leave to sue, a decision upheld by the Division Bench. The Supreme Court examined whether a registered society can be treated as a public (express or constructive) trust for the purposes of Section 92, whether the three statutory conditions – charitable purpose, breach of trust or need for court direction, and appropriate reliefs – were satisfied, and whether the plaintiffs were persons interested in the trust. It held that the society, although not an express trust, could be deemed a constructive trust, the plaintiffs satisfied the interest requirement, and the alleged breaches prima facie justified the suit, but some reliefs were personal and not maintainable. Consequently, the appeal was dismissed and the underlying suit was ordered to proceed.

Issues considered

Can a society registered under the Societies Registration Act, 1860 be construed as a public trust (express or constructive) for the purposes of Section 92 CPC?
Do the three conditions of Section 92 CPC – public charitable purpose, breach of trust or necessity of court direction, and reliefs within Section 92(1) – apply to the appellant society?
Are the plaintiffs ‘persons having an interest in the trust’ under Section 92?
Do the reliefs claimed fall within the scope of Section 92(1) or are they personal grievances?
Does the doctrine of constructive trust apply to the society’s property and alleged misappropriation?

Legislation cited

Bombay Public Trusts Act, 1950s. 2(13)
Charitable Endowments Act, 1890s. 2
Code of Civil Procedure, 1908s. 92
Prohibition of Benami Property Transactions Act, 1988
Societies Registration Act, 1860s. 11.2.1, s. 11.2.3, s. 5, s. 8
Trusts Act, 1882s. 3, s. 6, s. 80, s. 81, s. 88, s. 94

Headnote

Issue for Consideration Issue arose as to whether the appellant Society registered under the Societies Registration Act, 1860 can be said to have fulfilled all the requirements stipulated u/s.92 CPC for the purpose of instituting a suit under the said provision. Headnotes† Code of Civil – Requirements to be fulfilled for instituting a suit u/s.92 – Appellant society, is a not-for-profit society, registered under the 1860 Act – Respondent no.3-CEO of the appellant society, terminated the services/employment of respondent no.1-medical health professional and

Subjects

Section 92 CPCPublic charitable institutionsPublic charitiesTrustPublic purposeCharitable or religious natureSociety construed as trust or constructive trustVesting of properties in the Executive CommitteeDoctrine of constructive trustBreach of trustAdministration of trustPersons having an interest in the trustConstructive trusteesPublic interestExpress trustGross financial improprietySiphoning off funds/donationsRepresentative suit of a special natureIf not vested in trustee

Judgment

[2025] 8 S.C.R. 411 : 2025 INSC 932

Operation Asha
v.
Shelly Batra & Ors.
(Civil Appeal No. 10048 of 2025)
05 August 2025
[J.B. Pardiwala* and R. Mahadevan, JJ.]

Issue for Consideration
Issue arose as to whether the appellant Society registered under
the Societies Registration Act, 1860 can be said to have fulfilled
all the requirements stipulated u/s.92 CPC for the purpose of
instituting a suit under the said provision.

Headnotes†
Code of Civil Procedure, 1908 – s.92 – Public charities –
Requirements to be fulfilled for instituting a suit u/s.92 –
Appellant society, is a not-for-profit society, registered
under the 1860 Act – Respondent no.3-CEO of the appellant
society, terminated the services/employment of respondent
no.1-medical health professional and co-founder – After the
removal of the respondent no.1 as a Board member, both the
respondent no.1 and her mother-respondent no.2 instituted
a suit u/s.92 for declaration, permanent and prohibitory
injunction and, rendition of accounts alleging misconduct
and breach of several society’s by-laws by the respondent
no.3 and respondent no.4 – Thereafter, respondent nos. 1 and
2 filed an application seeking leave to institute the civil suit
against the appellant Society along with the respondent nos.3
to 10 – Single Judge granted leave to the respondent nos.1
and 2 for instituting a suit u/s.92 holding that all the elements
and ingredients u/s.92 stood fulfilled – Appeal thereagainst
dismissed by the Division Bench – Challenge to:
Held: Respondent nos.1 and 2 made several allegations of
siphoning of funds by the respondent nos.3 and 4, for their own
personal use, could be said to have prima facie satisfied the
condition required to apply the doctrine of constructive trust to the
present facts – If these allegations are found to have no substance
or plainly false, the entire suit would fail – That would happen

* Author
412 [2025] 8 S.C.R.

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also when the circumstances which required the imposition of a
constructive trust do not exist/have not been proven – However,
if found true, all the property diverted for the purpose of obtaining
a pecuniary advantage would be subject to a constructive trust,
the administration of which can be sought in a suit u/s.92 and the
respondent nos.3 and 4 respectively would be considered to be
‘constructive trustees’– While scrutinising whether the respondent
nos.1 and 2 are persons interested in the trust and whether they
are bringing the suit in a representative capacity, it is not just
their designation or position which must be looked into or given
importance to – While recognising that they have also sought some
remedies related to personal grievances and the wrongful dismissal
of the respondent no. 1 which could be seen as unduly magnifying
an election dispute, there are several other allegations in the plaint
which cannot simply be ignored and which give the respondent
nos.1 and 2, a dual role/capacity, whilst they’re agitating the matter
u/s.92 – Larger background in which the suit is brought alludes
to the existence of public interest also at play – Reliefs claimed
by the plaintiffs, must fall within those reliefs outlined u/s.92(1) –
Reliefs in the present plaint, insofar as they agitate private rights,
cannot be granted under a suit of this nature – Suit filed before
the Single Judge of the High Court to be commenced – Societies
Registration Act, 1860. [Paras 137 (xv), (xvii), 138]

Code of Civil Procedure, 1908 – s.92 – Object and purpose –
Conditions to be fulfilled for the applicability of s.92:
Held: Suit u/s.92 is a representative suit of a special nature since
the action is instituted on behalf of the public beneficiaries and
in public interest – Obtaining a ‘grant of leave’ from the court
before the suit can be proceeded with, acts as a procedural and
legislative safeguard in order to prevent public trusts from being
subjected to undue harassment through frivolous suits being filed
against them – However, at the stage of grant of leave, the court
neither adjudicates upon the merits of the dispute nor confers any
substantive rights upon the parties – Certain conditions or essential
pre-requisites need to be fulfilled for a suit to be maintainable under
this provision are-the trust in question must be created for public
purposes of a charitable or religious nature; there must exist a
breach of trust or a direction of the court must be necessary for
the administration of the trust; and the relief claimed must be one
or other of the reliefs as enumerated u/s.92(1) – To establish that a
suit is not maintainable u/s.92, it is sufficient to prove that any one
[2025] 8 S.C.R. 413

Operation Asha v. Shelly Batra & Ors.

of the conditions enumerated above has not been met, however,
in order to assert its maintainability, all the said conditions need
to be satisfied – Furthermore, special nature of the suit u/s.92
requires it to be filed fundamentally on behalf of the public for the
vindication of public rights – Thus, courts must go beyond the reliefs
and also give due regard to the object and purpose for which the
suit is brought – True nature of the suit must be determined on
a comprehensive understanding of the facts of the matter and a
hard-and-fast rule cannot be made – Fact that certain private rights
are being agitated must not be reason enough to ignore the other
allegations made in the suit and dismiss it outrightly, provided the
suit is instituted in a representative capacity – Issues involving
the day-to-day management of the institution and grievances by
members qua other members as regards the election of members or
certain board decisions, must not be made in a suit of this nature,
especially when such grievances can be redressed through other
mechanisms or under a regular suit not falling within s.92. [Para
137(i), (ii), (xix), (xx)]

Societies Registration Act, 1860 – s.5 – Property of society
how vested – Doctrine of constructive trust and its applicability
to a society:
Held: Effect of registration under the 1860 Act would not be to
automatically invest the properties of the society with the character
of trust property – s.5 provides two options, or mechanisms through
which a society can hold the property belonging to itself, one, in
trustee(s) or, two, in the governing body of the society – While the
society cannot be considered as an ‘express trust’, for an entity to
be brought within the rigours of s.92, the plaintiff has the option of
also contending that a ‘constructive trust’ exists in the circumstances
and a breach of such a constructive trust has occurred or that the
directions of the Court are necessary for the administration of such
a constructive trust – Constructive trust, arises by operation of law,
without regard to or irrespective of the intention of the parties to
create a trust – It is imposed predominantly because the person
holding the title to the property would profit by a wrong or would
be unjustly enriched if they were permitted to keep the property –
For this equitable doctrine to be applied, fiduciary must receive
property or money which he cannot conscientiously retain – It is
only thereafter that a constructive trust would be raised in favour
of the beneficiaries on whose account the money was originally
received – Factum that the fiduciary ‘withheld’ the property from its
414 [2025] 8 S.C.R.

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rightful beneficiaries must be established – That such a fiduciary
sought to misapply the property in contravention to the covenants
that bound him, or sought to gain an advantage for himself, must
be proved for a constructive trust to come into existence by the
operation of law – That he further divested the said siphoned
property/funds, would have to be proved in order to assert that the
‘constructive trust’ has additionally been breached – Even in the
absence of such a further divestment, the directions of the court
may still be necessary for the administration of the constructive
trust. [Para 137 (vii), (xi), (xii), (xiii), (xiv)]

Case Law Cited
Ashok Kumar Gupta & Anr. v. Sitalaxmi Sahuwala Medical Trust &
Ors. [2020] 2 SCR 983 : (2020) 4 SCC 321; Shiromani Gurudwara
Prabandhak Committee v. Som Nath Dass [2000] 2 SCR 705 :
(2000) 4 SCC 146; Swami Paramatmanand Saraswati v. Ramji
Tripathi [1975] 1 SCR 790 : (1974) 2 SCC 695; Ahman Adam Sait
and Others v. M.E. Makhri and Others, 1963 SCC OnLine SC 71;
Shiromani Gurdwara Parbandhak Committee v. Mahant Harnam
Singh [2003] Supp. 3 SCR 805 : (2003) 11 SCC 377; Vidyodaya
Trust v. Mohan Prasad [2008] 3 SCR 569 : (2008) 4 SCC 115;
Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan [2017]
2 SCR 365 : (2017) 4 SCC 771; Bihar State Board Religious
Trust, Patna v. Mahant Sri Biseshwar Das [1971] 3 SCR 680 :
(1971) 1 SCC 574; Kuldip Chand and Another v. Advocate-General
to Government of H.P. and Others [2003] 1 SCR 1195 : (2003) 5
SCC 46; Board of Trustees, Ayurvedic and Unani Tibia College,
Delhi v. State of Delhi and Another [1962] Supp. 1 SCR 156 :
1961 SCC OnLine SC 145; Illachi Devi and Ors. v. Jain Society,
Protection of Orphans India and Others [2003] Supp. 4 SCR 62 :
(2003) 8 SCC 413; Tata Memorial Hospital Workers Union v.
Tata Memorial Centre and Another [2010] 9 SCR 723 :
(2010) 8 SCC 480; Janardan Dagdu Khomane and Another v.
Eknath Bhiku Yadav & Ors. [2019] 13 SCR 390 : (2019) 10 SCC
395; Syed Mohd. Salie Labbai v. Mohd. Hanifa [1976] 3 SCR
721 : (1976) 4 SCC 780; T. Varghese George v. Kora K. George
[2011] 12 SCR 1070 : (2012) 1 SCC 369; Mahant Pragdasji Guru
Bhagwandasji v. Patel Ishwarlalbhai Narsibhai [1952] 1 SCR 513 :
(1952) 1 SCC 323; Charan Singh v. Darshan Singh [1975] 3 SCR
48 : (1975) 1 SCC 298; Sugra Bibi v. Hazi Kummu Mia [1969] 3
SCR 83 : 1968 SCC OnLine SC 99 – referred to.
[2025] 8 S.C.R. 415

Operation Asha v. Shelly Batra & Ors.

S.R. Bahugana v. All India Women’s Conference and Ors. (2009)
ILR 7 Delhi 614; Abhaya v. JA Raheem, 2005 SCC OnLine Ker 234;
K. Rajamanickam v. Periyar Self Respect Propaganda Institution,
Thiruchirapalli, 2006 SCC OnLine Mad 379; The Young Mens
Christian Association of Ernakulam and Ors. v. National Council
YMCAS of India, 2018 SCC OnLine Del 9909; Babu Bhagwan Din
and Ors. v. Gir Har Saroop and Ors., 1939 SCC OnLine PC 47;
Gurunatharudhaswami Guru Shidharudhaswami v. Bhimappa
Gangadhrawappa Divate, 1948 SCC OnLine PC 43; Kesava
Panicker v. Damodara Panicker and Others, 1974 SCC OnLine
Ker 58; C. Chikka Venkatappa & Another v. D. Hanumanthappa &
Others, 1970 SCC OnLine Kar 16; Shri Dnyaneshwar Madhuradwait
Sampradayik Mandal, Amravati v. Charity Commissioner, Bombay
and Another, 1980 SCC OnLine Bom 120; Board of Governors
St. Thomas School and Others v. A.K. George and Another, 1984
SCC OnLine Cal 56; The Advocate General v. Bhartiya Adam Jati
Sewak Sangh and Ors., MANU/HP/0182/2001; Gopal L. Raheja v.
Vijay B. Raheja, 2007 SCC OnLine Bom 399; Budreedas v.
Choonilal, ILR 33 Cal 789; Tirumalai-Tirupati Devasthanams
Committee v. Udiayar Krishnayya Shanbhaga, 1943 SCC OnLine
Mad 48 – referred to.
Knight v. Knight (1840) 3 Beav 148; Beatty v. Guggenhein
Exploration Co. (1919) 225 N. Y. 380; Meinhard v. Salmon (1928)
249 N.Y. 458; Newton v. Porter, 69 N.Y. 133 (1877); Campbell v.
Drake, 39 N.C. 94 (1845); Pope v. Garrett, 147 Tex. 18 (1948);
McAnulty v. Std. Ins. Co. (2023) 81 F.4th 1091; Bailey v. Angove’s
Pty Ltd. (2016) UKSC 47; Keech v. Sandford (1726) Sel Cah
Ch 61; Paragon Finance plc v. Thakerar & Co. (1999) 1 All ER
400; Stevens v. Hotel Portfolio II UK Ltd. (2025) UKSC 28 –
referred to.

Books and Periodicals Cited
Mukherjee on the Indian Trust Act, 1881 (2021); Halsbury Laws of
India; P Ramantha Aiyar in Advanced Law Lexicon – referred to.

List of Acts
Code of Civil Procedure, 1908; Societies Registration Act, 1860;
Trusts Act, 1882; Prohibition of Benami Property Transactions
Act, 1988.
416 [2025] 8 S.C.R.

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List of Keywords
Section 92 CPC; Public charitable institutions; Public charities;
Trust; Public purpose; Charitable or religious nature; Society
construed as trust or constructive trust; Vesting of properties in
Executive Committee; Doctrine of constructive trust; Breach of
trust; Administration of trust; Persons having an interest in the
trust; Constructive trustees; Public interest; Express trust; Gross
financial impropriety; Siphoning off funds/donations; Representative
suit of a special nature; If not vested in trustee.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10048 of 2025
From the Judgment and Order dated 21.08.2024 of the High Court
of Delhi at New Delhi in FAOOS No. 114 of 2024

Appearances for Parties
Advs. for the Appellant:
Dama Seshadri Naidu, Sr. Adv., Bishwajit Dubey, Ms. Radhika
Bishwajit Dubey, Karan Khetani, Umesh Dubey, Ms. Madhulika,
Ms. Vuzmal Nehru, Manoj K. Mishra.
Advs. for the Respondents:
Jai Anant Dehadrai, Sidharth Sharma, Anubhav Lamba, Pulkit
Agarwal.

Judgment / Order of the Supreme Court

Judgment

J.B. Pardiwala, J.

For the convenience of exposition, this judgment is divided into the
following parts: -

INDEX*

A. FACTUAL MATRIX ................................................................... 2
B. THE IMPUGNED JUDGMENT ................................................. 15
C. SUBMISSIONS OF THE PARTIES ......................................... 18

* Ed. Note: Pagination as per the original Judgment.
[2025] 8 S.C.R. 417

Operation Asha v. Shelly Batra & Ors.

i. Submissions on behalf of the Appellant ....................... 18

ii. Submissions on behalf of the respondent no. 1 .......... 22

iii. Submissions on behalf of the respondent nos. 3
and 4 .................................................................................. 24

D. ISSUES FOR DETERMINATION ............................................. 25

E. ANALYSIS ................................................................................ 25

i. The Object and purpose behind Section 92 of the
CPC .................................................................................... 25

ii. Conditions to be fulfilled for the applicability of Section
92 of the CPC ................................................................... 33

A. The trust being created for a public purpose of a
charitable or religious nature ....................................... 36

I. Whether a Society can be construed to be a ‘trust
or a ‘constructive trust’? ........................................ 37

a. Circumstances under which the creation of a
trust has been inferred ................................... 37

b. Views of different High Courts on the issue ... 55

c. Section 5 of the Societies Registration Act,
1860 and the ‘vesting’ of properties in the
Executive Committee. ..................................... 82

d. The doctrine of constructive trust and its
applicability to a society functioning for public
purposes of a religious or charitable nature ... 99

B. A breach of trust or the directions of the court being
necessary for the administration of the trust ............... 129

C. The institution of the suit must be made by two or more
persons “having an interest in the trust” ...................... 136

D. The reliefs falling within the scope of those enumerated
under Section 92(1) of the CPC along with the object,
purpose and capacity in which the suit is brought. ....... 140

F. CONCLUSION ......................................................................... 157
418 [2025] 8 S.C.R.

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1. Leave granted.
2. This appeal arises from the judgment and order passed by the
High Court of Delhi dated 21.08.2024 in FAO(OS) No. 114 of 2024
(hereinafter, the “impugned decision”), by which the High Court
dismissed the appeal filed by the appellant herein against the judgment
and order dated 03.05.2024 passed by a learned Single Judge of
the High Court in CS(OS) No. 153 of 2020 allowing the application
under Section 92 of the Code of Civil Procedure, 1908 (hereinafter,
the “CPC”) filed by the respondent nos. 1 and 2 respectively, seeking
leave to institute the subject suit.

A. FACTUAL MATRIX
3. Operation ASHA (hereinafter, the “appellant Society/original
defendant no. 1”) is a not-for-profit society founded in the year 2005
and registered under the Societies Registration Act, 1860 with its
registered office in New Delhi. The appellant Society is engaged in
providing health services through a plethora of activities primarily to
the underprivileged sections of the society across India with special
emphasis on the treatment, education and prevention of tuberculosis
and other diseases. The same can be inferred from the Memorandum
of Association (hereinafter, the “MoA”) of the appellant Society. The
aims and objectives of the appellant Society are as follows:
“4. AIMS AND OBJECTS
MAIN OBJECTIVES OF THE SOCIETY ARE GIVEN
BELOW.
4.1.1 To develop, establish, maintain and provide health
and all other related services, and to help, aid, assist,
arrange, co-ordinate, organize maintain and carry on
activities connected with one of health quality of life,
nursing facilities, socio-economic aspects, general welfare
and problems of the society with special emphasis on
provision of services for the underprivileged sections of
the society as per Govt. rule.
4.1.2 To develop, establish, make and provide microcredit
microfinance and all other related services, and to help,
aid, assist, arrange, contribute, co-ordinate, organize
maintain and carry on activities connected with concerns
[2025] 8 S.C.R. 419

Operation Asha v. Shelly Batra & Ors.

of microcredit and micro finance. Socio-economic aspects,
general welfare and problems of the society with special
emphasis on provision of services for the underprivileged
sections of the society as per Govt. rule.
4.1.3 To establish hospitals, medical schools and colleges,
nursing schools and colleges, dispensaries, laboratories
research institutions and other educational institutions as
per Govt. rule.
4.1.4 To purchase or otherwise deal in medicines and
equipment required for maintenance of health, hygiene
and microcredit/ microfinance.
4.1.5 To aid, promote establish, maintain, run and
encourage alternative systems of medicine and establish
training and research centers for this purpose as Govt, rule.
4.1.6 To aid, promote, establish, maintain, run and
encourage microcredit/microfinance as per Govt. rule.
4.1.7 To open centers and institutes for diagnostic,
curative, therapeutic and research of medical sciences
as per Govt. rule,
4.1.8 To provide free medicines to the poor.”
4. The MoA of the appellant Society also stipulates that all the incomes
and earnings of the society, whether movable or immovable, shall
solely be utilised to further the aims and objectives of the appellant
Society. Furthermore, it is also stated that the members of the
appellant society would not be entitled to any profits by virtue of their
membership. The relevant portion of the MoA is extracted hereinbelow:
“All the incomes, earnings, movable or immovable
properties of the society shall be solely utilized and applied
towards the promotion of its aims and objectives only as
set forth in the memorandum of association and no profits
thereof shall be paid or transferred directly or indirectly
by way of dividends, bonus, profits or in any manner
whatsoever to the present or past members or to any
person claiming through any one or more of the present
or the past members, no member of the society shall have
any profits, whatsoever by virtue of his membership, the
420 [2025] 8 S.C.R.

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names, addresses, occupations and signatures of the
present members of the executive committee tο whom
the management and affairs of the society are entrusted
as required under section 2 of the societies registration
act, 1860 (punjab amendment act of 1957) as extended
and applicable to the national capital territory & all state
of india.”
(Emphasis supplied)

5. A few other relevant clauses from the Articles of Association
(hereinafter, the “AoA”) of the appellant Society are reproduced
hereinbelow:
“6. DUTIES & OBLIGATIONS OF MEMBERS
All and every member
6.1 Shall attend the Board of meetings regularly;
6.2 Shall give necessary information to the Society,
pertaining to matters necessary to be known by the Society;
6.3 Shall not indulge in activities, which may prove
prejudicial to the Aims and Objects of the Society and/or
to the Rules and Regulations of the Society;
6.4 Shall maintain sanctity of the secrets and confidentiality
of police matters of the Society and its members;
-xxx-
11.2 POWERS & DUTIES OF THE EXECUTIVE
COMMITTEE
11.2.1 All the properties, movable, immovable, and other
kind of assets shall stand vested in the Committee.
11.2.2 The business and the affairs of the Society shall be
managed and administered by the Committee.
11.2.3 Without prejudice to the generality of the foregoing
provisions, the Committee shall have the following powers.
11.2.3.1 To acquire by gift, purchase, exchange, lease or
in any other manner land, building, or other immovable,
property together with all rights pertaining thereto.
[2025] 8 S.C.R. 421

Operation Asha v. Shelly Batra & Ors.

11.2.3.2 To manage the properties of the Society.
11.2.3.3 To accept the management of any trust, fund,
or endowment or any other … in which the Society is
interested.
11.2.3.4 To raise funds for the Society by way of gifts,
donations, grants-in-aid or otherwise within India or outside,
as provided in the bye-laws.
11.2.3.5 To raise loans, stand guarantee for loans and
do all acts necessary to raising the loans to further the
objects of the Society.
11.2.3.6 To receive monies, securities, instruments,
investments, or any other assets for and on behalf of the
Society.
11.2.3.7 To enter into agreements contracts for and on
behalf of the Society.
11.2.3.8 To manage, serve, transfer or otherwise dispose-
off any property, movable or immovable of the Society.
11.2.3.9 To prescribe the powers, duties and functions of
the office-bearers.
11.2.3.10 To exercise control over the President and the
General secretary of the Society including the powers of
dismissal.
11.2.3.11 To appoint the Secretary of the Society.
11.2.3.12 To elect new members to the Committee when
casual vacancies occur.
11.2.3.13 To appoint the Secretary of the society.
-xxx-
13. SOURCES OF INCOME & UTILIAZATION OF FUNDS
Funds will be raised by way of grants-in-aid, donations,
gifts, subscriptions fees, and income from investments,
loans and other means available to the Society under
the Act. Funds will be used to carry out the Aims and
Objectives of the Society.”
422 [2025] 8 S.C.R.

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6. Dr. Shelly Batra (hereinafter, the “respondent no. 1/original plaintiff
no. 1”) is a medical health professional and co-founder of the appellant
Society. Vide communication dated 19.06.2020, Mr. Sandeep Ahuja
(hereinafter, the “respondent no. 3/original defendant no. 2”) who
is also the co-founder and CEO of the appellant Society terminated
the services/employment of the respondent no. 1. The communication
alleged that the termination of the respondent no. 1 was on account
of various “omissions including misrepresentation” of her daughter’s
previous employment, fabrication of documents, misappropriation
of the assets and funds of the NGO as well as gross misbehaviour
with the staff and the employees. Subsequently, on 23.06.2020, the
Board of the appellant Society is said to have passed a resolution
terminating the respondent no. 1 from the post/office of President of
the appellant Society. Soon thereafter, on 27.06.2020, the Board of
the appellant Society is also said to have removed the respondent
no. 1 from her capacity as a member of their Board.
7. Mrs. Usha Gupta, (hereinafter, the “Respondent No. 2/original
plaintiff no. 2”), who is the mother of the respondent no. 1, is
one of the current members of the Board of the appellant Society.
Immediately after the removal of the respondent no. 1 as a Board
member, both the respondent no. 1 and respondent no. 2 (collectively
also referred to as the “original plaintiffs”) instituted an Original
Suit bearing CS (OS) No. 153 of 2020 on 28.06.2020 under Section
92 of the CPC before a learned Single Judge of the High Court for
declaration, permanent & prohibitory injunction and, rendition of
accounts. They alleged misconduct and breach of several of the
society’s by-laws by the respondent no.3 and one Ms. Suniti Ahuja
(hereinafter, the “respondent no. 4/original defendant no. 3”).
The original defendant nos. 4 to 8 respectively are current Board
members and the original defendant no. 9 is a former Board member
of the appellant Society.
8. To further elaborate in detail, the respondent nos. 1 and 2 respectively
(original plaintiffs) alleged the following in the suit instituted by them:
i. That the respondent nos. 3 and 4 respectively, were indulging in
gross financial impropriety, misconduct and siphoning off funds/
donations which were received by the appellant Society into
various shell companies/entities controlled by them and their
friends/relatives. Such funds were utilised and misappropriated
[2025] 8 S.C.R. 423

Operation Asha v. Shelly Batra & Ors.

for personal gains. Furthermore, that the funds received by the
society have been utilised for activities outside India, which is
impermissible, since the requisite permission was not taken from
the appropriate governmental authorities and yet, tax benefits
were illegally availed for the same.
ii. That there has been a severe mismanagement in the
administration of the appellant Society by the respondent nos.
3 and 4 respectively. They have avoided making accounting
provisions for statutory disbursements in the form of provident
fund or gratuity to their employees and are also engaging in
cross-payment of salaries to employees through their sister
concerns with a view to avoid the grant of statutorily mandated
employee benefits.
iii. That the respondent no. 3 has misrepresented information and
thereby misled the donors of the appellant Society with an
intent to defraud them by claiming that the appellant society
had provided COVID-19 related services to more than 12,600
families and 10,000 migrants, however, the same remains
entirely uncorroborated and unsubstantiated.
iv. That the respondent nos. 3 and 4 respectively, used force and
coerced several employees in order to illegally take away the
property of the appellant Society. This includes pressurizing the
original defendant no. 8 to hand over the ATM card, passbook
etc. of the account in which his salary is remitted and utilising
those funds for personal needs. Furthermore, it was alleged
that they have also demanded compulsory kickbacks from the
employees engaged by the appellant Society by threatening,
coercing and blackmailing them with immediate termination of
employment, with a view to siphon employee payments.
v. That respondent no. 3 has also regularly misbehaved by issuing
threats of personal injury and also indulged in discriminatory
behaviour against the employees of the appellant society on
the basis of race, caste, religion and sex.
vi. That, around February 2020, the respondent no. 1 approached
the respondent nos. 3 and 4 respectively to resolve the aforesaid
issues, amongst others. In retaliation, she was harassed and
threatened to exit from her position at the appellant Society.
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9. The reliefs prayed for in the aforesaid suit are reproduced hereinbelow:
“PRAYER
35. In light of the above facts and circumstances of the
case, Plaintiffs most humbly pray that this Hon’ble Court
may grant the following reliefs in its favour:
(a) Pass a decree of declaration holding that all the
decisions taken by the Board of Defendant No.1 and/or
any Board member or employee or personnel w.e.f. 01-06-
2020 onwards are illegal, wrong and void, in the present
facts and circumstances, and therefore, set-aside; and/or
(b) Pass a decree of declaration holding that the
termination of Dr.Shelly Batra (Plaintiff No. 1) from the
post/office of President vide Board Resolution dated
23-06-2020 and ouster from the Board of Defendant
No. I vide Board Resolution dated 27-06-2020 is illegal,
wrong and void in the present facts and circumstances,
and restoring her office/post in the affairs of Defendant
No. 1; and/or
c) Pass a decree for permanent & prohibitory injunction
against the Defendant Nos.2 and 3 by removing them from
the Board of Defendant No.1 on account of the illegalities &
breach of the bye-laws of Defendant No.1, and restraining
them from being involved in the activities/affairs of the
Board of Defendant No.1 either as member or employee
or contractor or advisor or anyway whatsoever;
(d) Pass a decree for rendition of accounts of profits/
monies siphoned, misappropriated, illegally earned by
Defendant Nos.2-3 for their personal use/benefit from the
accounts/funds of Defendant No.1, and further a decree
for recovery of the amount be found to be due, siphoned,
misappropriated, etc. by the Defendant Nos. 2-3 along
with interest @18% in favour of Defendant No. 1; and/or
I Pass a decree or order regarding settling the scheme
of the Defendant No. 1 by amending its bye-laws in such
manner that no one family gets complete control of the
affairs of Defendant No. 1:
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(f) Costs:
(g) Any other relief (s) which this Hon’ble Court deems,
fit, just and proper may also be awarded in favour of the
Plaintiffs, in the interest of justice.”
10. In pursuance of the aforesaid, the respondent nos. 1 and 2 respectively,
filed an application being I.A. No. 5009 of 2020 in CS (OS) No. 153
of 2020 seeking leave to institute the civil suit against the appellant
Society along with the respondent nos. 3 to 10 (collectively referred
to as the “original defendants”) before the learned Single Judge of
the High Court. In the said application, it was stated that the appellant
Society is a public charitable institution - an NGO engaged in the
healthcare industry. The main objectives of the society as evidenced
by its by-laws is public welfare and therefore, it would fall under the
ambit of “public charities” mentioned under Section 92 of the CPC.
The respondent nos. 1 and 2 respectively (original plaintiffs) have
been involved in the functioning of the appellant Society since its
inception and have a justified and bona fide interest in the society,
Therefore, they are “interested persons” as required by Section 92.
Furthermore, since numerous breaches have occurred in the conduct
of business/affairs of the appellant Society, the direction of the court
would be of utmost necessity for its administration.
11. After taking seisin of the matter, vide order dated 05.08.2020, the
learned Single Judge of the High Court appointed Justice (retd.) R.V.
Easwar as the Chairperson of the Board of the appellant Society
with the consent of both the parties. Directions were issued to the
Chairperson to submit a report and conduct a financial audit in order
to ascertain, amongst others, whether there has been a defalcation
or siphoning off of funds that the donors have contributed towards
the appellant Society and to make suggestions as to how the working
of the society can be improved. The Chairperson submitted three
reports dated 26.08.2020, 03.10.2020 and 09.12.2020 respectively.
On, 13.08.2021, an Interim Forensic Audit Report and on 20.09.2021,
a Final Forensic Audit Report respectively, are also said to have been
submitted by the auditors appointed for the said purpose.
12. The learned Single Judge of the High Court vide the judgment and
order dated 03.05.2024 granted leave to the respondent nos. 1 and
2 (original plaintiffs) for the purpose of instituting a suit under Section
92 of the CPC. While holding that all the elements and ingredients
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under Section 92 of the CPC stood fulfilled and granting leave, the
learned Single Judge observed as follows:
i. First, whether it be the Interim Forensic Audit Report dated
13.08.2021 or the various reports submitted under the
Chairmanship of Justice (retd.) R.V. Easwar, there was no
gainsaying that actions are required to be taken to remedy the
state of affairs of the appellant Society, particularly in relation to
its financial affairs and administrations, for which the directions
of the court may be necessary.
ii. Secondly, heavy reliance was placed on the decision of this
Court in Ashok Kumar Gupta & Anr vs. Sitalaxmi Sahuwala
Medical Trust & Ors. reported in (2020) 4 SCC 321 to grant
leave under Section 92 of the CPC since the enunciation of
law in the said decision is also said to have been made in a
strikingly similar factual background. It was reiterated that it is
the dominant purpose of the suit, as discernible strictly from the
allegations made in the plaint that is required to be assessed
by the court while considering whether leave must be granted
to institute the suit or not.
iii. Thirdly, that the respondent no. 1 (original plaintiff no. 1) being
one of the co-founders of the appellant Society and a long-time
President of its Board, along with the respondent no. 2 (original
plaintiff no. 2) who has been associated with the appellant
Society for an extended period of time while also continuing
to be a member of its Board, would constitute ‘persons having
an interest in the trust’.
iv. Fourthly, while referring to Article 13 of the AoA as per which
the society is entitled to raise funds by way of gifts, donations,
grants-in-aid or otherwise strictly for the purpose of carrying
out the aims and objectives of the society, it was opined that
the formal ‘entrustment’ of property or funds by a third-party
to the appellant Society would not be a necessary ingredient
to hold that the society is a ‘constructive trust’. If that formality
were a sine-qua-non, the very distinction between a ‘trust’
and a ‘constructive trust’ would stand obliterated. Since any
grant-in-aid, donation or gift made by a third-party to the
society would, by its very nature, be intended to be used for
the benefit of those in need of medical care in furtherance of
[2025] 8 S.C.R. 427

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the objects of the society, it was held that this in-itself would
be sufficient to infer that all such grants-in-aid, donations gifts
etc., made to the society would become property ‘entrusted’ to
it, by reason of which the society would acquire the character
of a ‘constructive trust’.
v. Fifthly, after perusing the aims and objects of the appellant
Society as detailed in the MoA it was declared that the appellant
Society is evidently engaged in a ‘public purpose of charitable
nature’ since they principally provide health care services to the
underprivileged sections of the society, specifically with respect
to the treatment, education and prevention of tuberculosis.
vi. Lastly, that the claims made in the suit also co-relate and fall
within the scope of the reliefs contemplated under Section 92 of
the CPC, more particularly sub-sections (1)(d) and (1)(h) thereof.
13. The relevant observations made by the learned Single Judge are
reproduced hereinbelow:
“20. Therefore, we must not lose sight of the fact, that for
purposes of deciding whether leave should be granted
under section 92 CPC, it is only the allegations in the
plaint that should be looked into in the first instance; it
being available to the court to even dismiss the suit if
after evidence is led it is found that the breach of the trust
alleged was not made-out.
21. To reiterate it is the dominant purpose of the suit, as
discernible only from the allegations in the plaint, that
is required to be assessed by the court at the stage of
considering whether leave should be granted under section
92 CPC to institute a suit.”
22. In the present case, the following assertions are found
in the plaint:
22.1. Plaintiff No.1 is one of the co-founders of defendant
No. 1 society and has been a long time President of its
Board, Plaintiff No.2. has been associated with defendant
No.1 society for a long time and continues to be a member
of the Board of the society, even if she is plaintiff No.1’s
mother. In fact these assertions appear to reflect the
admitted position.
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22.2. Plaintiff No.1 has played a pivotal role in the
functioning of the society ever since it was established.
-xxx-
“22.4. Furthermore, a perusal of the Articles of Association
(‘AOA’) of defendant No.1 society inter-alia shows that the
management of the society is entrusted to an Executive
Committee, which is entitled to raise funds for the society
by way of gifts, donations, grants-in-aid or otherwise, which
funds are to be used to carry-out the aims and objectives of
the society. Attention in this behalf may be drawn to Article
13 of the AoA of the society, which reads as follows […]
In the opinion of this court, the formal ‘entrustment’ of
property or funds by a third-party to defendant No.1 society
is not a necessary ingredient to hold that the society is a
constructive trust’. If that formality were a sine-qua-non,
the very distinction between a ‘trust’ and a ‘constructive
trust’ would get obliterated. This court is of the view, that
any grant-in-aid, donation or gift made by a third-party to
the society is, by its very nature, meant and intended to
be used for the benefit of those in need of medical care
in furtherance of the objects and purpose of the society.
This, in itself, is sufficient to infer that all such grants-in-
aid, donations, gifts etc. made to the society are property
entrusted to it, by reason of which the society acquires
the character of a ‘constructive trust’.”
22.5. Also, defendant No.1 is evidently engaged in a public
purpose of charitable nature, since it provides medical-aid
and relief to patients of tuberculosis who otherwise cannot
afford treatment, thereby fulfilling the other criterion of
section 92 CPC.
22.6. In this manner, defendant No.1 society fulfils all
conditions necessary to invoke section 92 CPC, as
enunciated by the Supreme Court in Ashok Kumar
Gupta (supra) and the elements required to qualify as a
‘constructive trust’ as laid down by a Co-ordinate Bench
of this court in The Young Mens Christian Association of
Ernakulam (supra) cited above.
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23. In addition, the IFAR as well as the multiple audit reports
submitted in relation to the administration and financial
affairs of the society, including under the chairmanship of
Justice Easwar, clearly disclose that the manner in which
the affairs of the society are being run, requires closer
consideration and scrutiny.
24. Furthermore, the claims made in the suit also co-relate
and fall within the scope of the reliefs contemplated in
section 92 CPC, especially section 92(d) and (h) thereof;
25. In the above view of the matter, this court is persuaded
to hold that all elements and ingredients of section 92
CPC are satisfied; and that therefore, the plaintiffs are
entitled to grant of leave to institute the present suit under
section 92, CPC.
26. To obviate any ambiguity, it may be clarified that the
grant of leave to the plaintiffs to institute the suit would not
prevent the court from dismissing die suit subsequently,
if the allegations contained in the plaint are found not to
be substantiated.
27. The application is accordingly allowed.”
(Emphasis supplied)

B. THE IMPUGNED JUDGMENT
14. Aggrieved by the aforesaid judgment and order of the learned
Single Judge dated 03.05.2024, the appellant Society preferred an
appeal being FAO (OS) No. 114 of 2024 before the Division Bench
of the High Court. The Division Bench while dismissing the appeal,
observed as follows:
i. First, reliance was, again, placed on the decision of this Court in
Ashok Kumar Gupta (supra) in order to delineate the conditions
that are required to be satisfied under Section 92 of the CPC.
ii. Secondly, the Division Bench echoed the observations made
by the Single Judge in as much as observing that the appellant
Society is admittedly of a charitable nature as evident from its
MoA.
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iii. Thirdly, reliance was placed on the relevant provisions of the
MoA which stipulated that all the incomes, earnings, movable
or immovable properties of the society shall be solely applied
towards furthering the objectives of the society and no profits
shall be paid, either directly or indirectly, to the members of
the Board or any person claiming through or under them.
Furthermore, while referring to Article 11.2.1 of the AoA which
specifically stated that all the properties, movable, immovable
and other kinds of assets shall stand vested in the Executive
Committee of the appellant Society, the Division Bench
expressed its agreement with the views of the Single Judge
that all donations, gifts etc. made to the appellant Society are
property ‘entrusted’ to it, due to which the society would acquire
the character of a ‘constructive trust’.
iv. Fourthly, referring to the decision of this Court in Shiromani
Gurudwara Prabandhak Committee vs. Som Nath Dass
reported in 2000 (4) SCC 146, it opined that the donations, gifts,
etc., being received by the appellant Society and being vested
in the Committee from various institutions would constitute an
‘endowment’ for public purpose.
v. Lastly, although the Bench acknowledged the contention of the
counsel for the appellant Society that prayer (b) of the plaint
agitates a personal/private grievance, yet it took the view that
the reliefs sought in prayers (d) and (e) of the plaint fall within
those reliefs contemplated under sub-section (1) of Section 92
of the CPC. The relevant observations of the Division Bench
are reproduced hereinbelow:
“12. Admittedly, the Appellant-society is of a charitable
nature as it has been formed primarily for serving the
under-privileged sections of the society, in particular,
patients suffering from tuberculosis. […]
13. The Memorandum of Association further stipulates
that all the incomes, earnings, movable or immovable
properties of the society shall be solely utilized
and applied towards the promotion of its aims and
objectives only as set forth in the Memorandum of
Association and no profits thereof shall be paid or
transferred directly or indirectly by way of dividends,
[2025] 8 S.C.R. 431

Operation Asha v. Shelly Batra & Ors.

bonus or profits in any manner whatsoever to the
present or past members or to any person claiming
through any one or more of the present or the past
members. The Memorandum of Association also
states that no member of the society shall have any
profits, whatsoever by virtue of his membership, the
names, addresses, occupations and signatures of
the present members of the Executive Committee
to whom the management and affairs of the society
are entrusted, as required under Section 2 of the
Societies Registration Act, 1860 (Punjab Amendment
Act of 1957).
14. Article 11.2.1 of the Articles of Association
specifically stipulates that all the properties, movable,
immovable and other kinds of assets shall stand
vested in the Committee.
15. Keeping in view the aforesaid as well as the fact
that the Appellant has been set-up with the primary
objective of providing medical relief to patients, who
otherwise cannot afford such treatment, this Court
is in agreement with the view of the learned Single
Judge that all the donations, gifts etc. made to the
Appellant-society are property entrusted to it, by
reason of which the society acquires the character
of a ‘constructive trust’.
16. In the above context, it would also be necessary to
refer to the judgment of Supreme Court in Shiromani
Gurudwara Prabandhak Committee vs. Som Nath
Dass 2000 (4) SCC 146, wherein it has been held
that an “endowment” is, when the donor parts with
his property for it to be used for a public purpose and
its entrustment is to a person or group of persons
for carrying out the objective of such entrustment.
It was held that once an endowment is made, it is
final and irrevocable and it is onerous duty of the
persons entrusted with such endowment to carry
out the objectives of this entrustment. It was further
held once an endowment, it never reverts even to
the donor. The Supreme Court has also considered
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that endowment” means property or pecuniary means
bestowed as a permanent fund, as endowment
of a college, hospital or library, and is understood
in common parlance as a fund yielding income
for support of an institution. Having regard to the
aforesaid, it is clear that donations, gifts etc. which
were being received by the Appellant, and being
vested in the committee, from various institutions
would be endowment for public purpose.”
17. Though the learned senior counsel for the
Appellant is correct in contending that prayer (b) of
the plaint agitates a personal/private grievance yet
this Court is of the view that the reliefs sought in
prayers (d) and (e) of the plaint fall within the reliefs
mentioned in sub section (1) of Section 92 CPC.
18. Consequently, this Court is of the view that the
impugned order calls for no interference. Accordingly,
the present appeal along with the application is
dismissed.”
(Emphasis supplied)

C. SUBMISSIONS OF THE PARTIES

i. Submissions on behalf of the Appellant
15. Mr. Dama Seshadri Naidu, the learned Senior Counsel appearing
for the appellant Society submitted that the appellant Society is a
‘registered society’ under the Societies Registration Act, 1960 and
is not a ‘Trust’ for the purposes of Section 92 of the CPC. It was
argued that it is a settled law that the governing body members
of the society shall only become ‘trustees’ if a trust is created for
the purpose of managing the assets of the society. The same not
being the case in the present scenario, the suit cannot be held to
be maintainable. To fortify his argument that a suit under Section 92
would not be maintainable against a ‘registered society’, the counsel
placed reliance on the decision of the Delhi High Court in S.R.
Bahugana v. All India Women’s Conference and Ors. reported
in (2009) ILR 7 Delhi 614 and that of the Kerala High Court in
Abhaya vs. JA Raheem reported in 2005 SCC OnLine Ker 234.
[2025] 8 S.C.R. 433

Operation Asha v. Shelly Batra & Ors.

16. The counsel submitted that as per the AoA of the appellant Society,
the property of the society is not held in a ‘trust’, which is the
fundamental requirement for the appellant Society to be termed as
a ‘constructive trust’. Specific reference was made to Clauses 11.2.1
and 11.2.3.8 of the AoA respectively to contend that the property
of the society stands vested in the ‘Committee’ or Governing Body
of the Society, as per the mandate of Section 5 of the Societies
Registration Act, 1860. On this aspect, reliance was placed on the
decision of the Madras High Court in K. Rajamanickam v. Periyar
Self Respect Propaganda Institution, Thiruchirapalli reported in
2006 SCC OnLine Mad 379.
17. Taking recourse to the decision of this Court in Swami Paramatmanand
Saraswati v. Ramji Tripathi reported in 1974 2 SCC 695, it was
submitted that, while deciding an application under Section 92 of the
CPC, the court must only look at the averments made in the plaint.
The plaint, in the present case, is conspicuously silent on how the
appellant Society falls within the definition of the term ‘constructive
trust’. Therefore, it was submitted that the underlying suit is clearly
beyond the ambit of Section 92.
18. To further substantiate his submissions as regards the appellant
Society not being a ‘constructive trust’, the counsel stated that
“a constructive trust is another species of trust where a trust is
automatically imposed by equity on an owner of property but in
special circumstances where it is unconscionable for the owner of
property to hold the property purely for his own benefit”. To illustrate,
where a trustee of a leasehold property at the termination of the
lease renews the lease purportedly in his own personal favour or
where a trustee has wrongfully gratuitously transferred trust property
to an innocent done who upon subsequently discovering the trust
attempts to retain the property for himself. It was submitted that
Mukherjee on the Indian Trust Act, 1881 (2021) also elaborated on
the Doctrine of Constructive Trust by arguing that a ‘constructive
trust’ arises not by the act of parties but by operation of law.
When a trustee gains some personal advantage by utilising his
trusteeship, he becomes a constructive trustee in respect of the
advantages gained.
19. The counsel submitted that the Halsbury Laws of India on the nature
of a constructive trust remarks that a constructive trust attaches by
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law to a specific property which is neither expressly subject to any
trust nor subject to a resulting trust but, which is held by a person in
circumstances where it would be inequitable to allow him to assert full
beneficial ownership of the property. In the present case, he argued
that the factual situation is entirely different and the property of the
appellant Society is vested in the governing body of the Society.
20. It was also submitted that the prayers made in the present suit
demonstrate that the same has been filed solely for the purpose of
vindication of personal rights of the respondent no. 1. More specifically,
the prayers seek to declare the board decisions taken by the appellant
Society from 01.06.2020 as null and void, since her employment/
services were terminated during this time. The respondent no. 1 also
seeks a declaration that her termination was bad in law along with
a direction that the respondent no. 3 be removed from the appellant
Society. These reliefs are clearly beyond the scope of Section 92 and
smack of personal vendetta and enmity. No relief has been sought
for the benefit of the society or to improve its functioning.
21. It was submitted that the provisions under Section 92 of the CPC can
be invoked only when two conditions are satisfied i.e. (a) it should
be with regard to a public trust to obtain a decree for the purposes
mentioned in the said provision, and (b) the suit should be on behalf
of the Advocate General or two or more persons having an interest
in the trust. He submitted that both the aforesaid conditions have
not been fulfilled in the present case since the appellant Society
is not a public trust and there is no pleading in the plaint showing
that the respondent no. 2 (original plaintiff no. 2) is a party having
an “interest” in the society. Moreover, the respondent no. 2 has not
even signed the plaint in the instant suit.
22. In light of the aforesaid, it was submitted that the impugned decision
is upheld, it would obliterate the distinction carved out by law between
a ‘trust’ and a ‘society’ for which two different legislations have been
enacted. Therefore, it was prayed that the impugned decision be
set aside and the underlying suit, pending before the High Court,
be dismissed.

ii. Submissions on behalf of the respondent no. 1
23. On the other hand, Mr. Jai Anant Dehadrai, the learned counsel
appearing for the respondent no. 1 submitted that the ingredients
[2025] 8 S.C.R. 435

Operation Asha v. Shelly Batra & Ors.

required to be satisfied before invoking Section 92 of the CPC was
clearly laid down in Ashok Kumar Gupta (supra) as follows:
(a) There should be a breach of express or constructive trust;
(b) The trust must have been created for a public purpose, either
of a charitable or religious nature;
(c) The suit must seek for reliefs as enumerated under Section
92(1) of the CPC.
24. The counsel submitted that the appellant society was formed with the
specific aim to serve the underprivileged members of the society who
are suffering from tuberculosis and who cannot afford its treatment.
The same is evident from the MoA of the appellant Society. The
donors, who are based in India as well as abroad, primarily the
United States, were providing funds in order to further this very
objective. Therefore, the appellant Society, being engaged in the
social welfare of the general public, possesses the characteristics
of an organisation with a ‘charitable nature’.
25. In order to canvass the argument that a society registered under the
Societies Registration Act, 1860 can be construed as a ‘constructive
trust’, the counsel placed reliance on the decision of the Delhi High
Court in The Young Mens Christian Association of Ernakulam and
Ors. v. National Council YMCAS of India reported in 2018 SCC
OnLine Del 9909 wherein it was opined that a society registered
under the Societies Registration Act, 1860 can be construed as a
constructive trust if its satisfies the elements mentioned in Section 3
of the Indian Trusts Act, 1882.
26. It was submitted that the appellant Society is being entrusted with
the funds from the donors for public service. Upon a perusal of
the Memorandum of Association, it is evident that all the earnings
and income generated, or funds received by the society shall only
be utilised for the betterment of the general public and to provide
free health services, and no profits shall be transferred directly
or indirectly to the members of the society. Additionally, Clause
11.2.1 of the AoA specifically provides that “All the properties,
movable, immovable and other kind of assets shall stand vested
in the Committee”. Therefore, all the donor funds, gifts etc. are
entrusted to the appellant Society to be utilised for the public
purpose as enumerated in the aims and objectives contained in
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its MoA. For all these reasons, the society acquires the character
of a ‘constructive trust’.
27. It was submitted that the reliefs sought in the plaint are in complete
consonance with Section 92(1) of the CPC and the impugned decision
has specifically held that the reliefs sought by the respondent nos. 1
and 2 respectively in their plaint, in particular, prayers (d) and (e) fall
within the reliefs mentioned under Section 92(1). Hence, the plaint
satisfies yet another ingredient required under Section 92 of the CPC.
28. In light of the aforesaid, it was submitted that the appellant Society
though registered under the Societies Registration Act, 1860 yet must
be construed as falling within the expression of a ‘constructive trust’
under Section 92 of the CPC as it holds property for charitable work.
Therefore, the impugned decision granting leave to institute the suit,
suffers from no infirmity and may not be interfered with.

iii. Submissions on behalf of the respondent nos. 3 and 4
29. The learned Counsel appearing on behalf of the respondent nos.
3 and 4 respectively, submitted that the application seeking leave
to institute the present suit has been filed in complete disregard of
the mandatory conditions stipulated under Section 92 of the CPC.
Section 92 requires a suit of this nature to be filed by at least two
interested parties. While the respondent no. 2 (original plaintiff no. 2)
has been included as one of the plaintiffs, it is pertinent to note that
the plaint has not been signed by the respondent no. 2. Additionally,
there is neither any verification on behalf of the respondent no. 2 nor
an affidavit in support of the plaint, as required under Section 26(2)
of the CPC. These substantial procedural breaches render the plaint
non-est in the eyes of law, and consequently, make it liable to be
rejected at the very threshold. It was further submitted that there is
a strong likelihood that the signatures of the respondent no. 2 was
fraudulently affixed in the suit documents.
30. The counsel vehemently submitted that the suit under Section 92 of
the CPC is legally untenable as it falls to fulfil the requisite conditions
as regards maintainability and also for the reason that it is completely
based on false allegations and has been filed to wreck a personal
vendetta against the respondent nos. 3 and 4 respectively. Therefore,
it was prayed that the present appeal be allowed and the impugned
decision be set aside.
[2025] 8 S.C.R. 437

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D. ISSUES FOR DETERMINATION
31. Having heard the learned counsel appearing on behalf of the
parties and having gone through the materials on record, the only
question that falls for our consideration is whether in the facts and
circumstances of the present case, the appellant Society registered
under the Societies Registration Act, 1860 can be said to have fulfilled
all the requirements stipulated under Section 92 of the CPC for the
purpose of instituting a suit under the said provision?

E. ANALYSIS

i. The Object and purpose behind Section 92 of the
CPC.
32. Section 92 of the CPC reads as follows:
“ 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 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;
I 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 inquiries;
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I declaring what proportion of the trust property or of the
interest therein shall be allocated to any particular object
of the trust;
(f) authorising 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.
(2) Save as provided by the Religious Endowments
Act, 1863 (20 of 1863), [or by any corresponding law in
force in [the territories 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.
[(3) The Court may alter the original purposes of an
express or constructive trust created for public purposes
of a charitable or religious nature and allow the property or
income of such trust or any portion thereof to be applied
cy pres in one or more of the following circumstances,
namely:—
(a) where the original purposes of the trust, in whole or
in part,—
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out
according to the directions given in the instrument creating
the trust or, where there is no such instrument, according
to the spirit of the trust; or
(b) where the original purposes of the trust provide a use
for a part only of the property available by virtue of the
trust; or
I where the property available by virtue of the trust and
other property applicable for similar purposes can be more
effectively used in conjunction with, and to that end can
[2025] 8 S.C.R. 439

Operation Asha v. Shelly Batra & Ors.

suitably be made applicable to any other purpose, regard
being had to the spirit of the trust and its applicability to
common purposes; or
(d) where the original purposes, in whole or in part, were
laid down by reference to an area which then was, but has
since ceased to be, a unit for such purposes; or
I where the original purposes, in whole or in part, have,
since they were laid down,—
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and
effective method of using the property available by virtue
of the trust, regard being had to the spirit of the trust.]”
(Emphasis supplied)

33. A suit under this provision can be termed as a ‘representative suit
of a special nature’ since the object behind the enactment of this
provision is the protection of public rights in the public trust. Therefore,
the parties filing a suit by invoking this section are considered to be
representatives of the public.
34. A three-judge bench of this Court in Ahman Adam Sait and Others
v. M.E. Makhri and Others reported in 1963 SCC OnLine SC 71
had elaborated on how a suit under Section 92 of the CPC is a
‘representative suit’ while deciding whether the second suit would
be barred by constructive res judicata. It was stated that when a
suit is brought under Section 92, by two or more persons interested
in the trust, they could be said to have taken upon themselves the
responsibility of representing all the beneficiaries in the trust and
though, all the said beneficiaries may not be expressly impleaded
in the suit, the action is essentially instituted on their behalf and
the relief claimed is representative in character. While stating so,
however, it was clarified that the plaintiffs bringing the second suit
must have the ‘same interest’ as that of the plaintiffs or defendants of
the earlier representative suit, for the principle of res judicata to apply.
In other words, it must be examined if the interest of the plaintiffs in
440 [2025] 8 S.C.R.

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the second suit was represented in the earlier representative suit.
The relevant observations are thus:
“16. In assessing the validity of this argument, it is necessary
to consider the basis of the decisions that a decree passed
in a suit under Section 92 binds all parties. The basis of
this view is that a suit under Section 92 is a representative
suit and is brought with the necessary sanction required by
it on behalf of all the beneficiaries interested in the Trust.
The said section authorises two or more persons having
an interest in the trust to file a suit for claiming one or
more of the reliefs specified in clauses (a) to (h) of sub-
section (1) after consent in writing there prescribed has
been obtained. Thus, when a suit is brought under Section
92, it is brought by two or more persons interested in the
trust who have taken upon themselves the responsibility
of representing all the beneficiaries of the Trust. In such
a suit, though all the beneficiaries may not be expressly
impleaded, the action is instituted on their behalf and relief
is claimed in a representative character. This position
immediately attracts the provisions of Explanation VI to
Section 11 of the Code. Explanation VI provides that where
persons litigate bona fide in respect of a public right or
of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the
purposes of this section, be deemed to claim under the
persons so litigating. It is clear that Section 11 read with its
Explanation VI leads to the result that a decree passed in
suit instituted by persons to which Explanation VI applies
will bar further claims by persons interested in the same
right in respect of which the prior suit had been instituted.
Explanation VI thus illustrates one aspect of constructive
res judicata. Where a representative suit is brought under
Section 92 and a decree is passed in such a suit, law
assumes that all persons who have the same interest as
the plaintiffs in the representative suit were represented by
the said plaintiffs and, therefore, are constructively barred
by res judicata from reagitating the matters directly and
substantially in issue in the said earlier suit.”
(Emphasis supplied)
[2025] 8 S.C.R. 441

Operation Asha v. Shelly Batra & Ors.

35. Similarly, in Shiromani Gurdwara Parbandhak Committee v.
Mahant Harnam Singh reported in (2003) 11 SCC 377, this Court
had opined that a suit under Section 92 is of a special nature and for
the protection of public rights in public trust and charities. It is for the
vindication of public rights since the suit is instituted fundamentally
on behalf of the entire body of persons who are interested in the
trust. It cannot be said that only those persons whose names are in
the suit-title would be considered to be the parties to the suit. The
named plaintiffs are only the representatives of the public at large
who are interested in the suit and therefore, in the eyes of law, all
such interested persons would be considered to be parties to the
suit. The relevant observations are reproduced hereinbelow:
“19. As observed by this Court in R. Venugopala Naidu v.
Venkatarayulu Naidu Charities [1989 Supp (2) SCC 356 :
AIR 1990 SC 444] a suit under Section 92 CPC is a suit
of special nature for the protection of public rights in the
public trust and charities. 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. The
beneficiaries of the trust, which may consist of the public
at large, may choose two or more persons amongst
themselves for the purpose of filing a suit under Section 92
CPC and the suit-title in that event would show only their
names as plaintiffs. Can we say that the persons whose
names are in the suit-title are the only parties to the suit?
The answer would be in the negative. The named plaintiffs
being the representatives of the public at large which is
interested in the trust, all such interested persons would
be considered in the eyes of the law to be parties to the
suit. A suit under Section 92 CPC is thus a representative
suit and as such binds not only the parties named in the
suit-title but all those who share common interest and are
interested in the trust. It is for that reason that Explanation
VI to Section 11 CPC constructively bars by res judicata
the entire body of interested persons from reagitating the
matters directly and substantially in issue in an earlier suit
under Section 92 CPC.”
(Emphasis supplied)
442 [2025] 8 S.C.R.

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36. In Vidyodaya Trust v. Mohan Prasad reported in (2008) 4 SCC
115, this Court had emphasised that it is not every suit which relates
to a public trust of religious or charitable nature and which contains
reliefs which fall within some of the clauses under sub-section (1)
of Section 92 that can be brought under the ambit of Section 92 of
the CPC. Those suits must also essentially be initiated by individuals
as representatives of the public for the vindication of public rights.
While opining so, this Court also elaborated on the object behind
requiring a ‘grant of leave’ from the appropriate court before the suit
can be proceeded with. The same was said to have been mandated
as a pre-requisite or a procedural safeguard in order to prevent the
public trusts from being subjected to undue harassment through
frivolous suits being filed against them. If the persons responsible
for the management of the trusts are subjected to multiplicity of legal
proceedings, then it would be the ultimate beneficiaries of the trust
who would lose out since the trust would have to dedicate time to
defend the suit and the funds which are to be utilised to further the
objectives of the public trust would also have to be re-routed and
wasted on litigation. In the opinion of the Court, this ordeal might
also dissuade persons of high moral character and honest intentions
from becoming trustees of public trusts. The pertinent observations
are reproduced hereinbelow:
18. Prior to legislative change made by the Code of Civil
Procedure (Amendment) Act (104 of 1976) the expression
used was “consent in writing of the Advocate General”. This
expression has been substituted by the words “leave of
the Court”. Sub-section (3) has also been inserted by the
Amendment Act. The object of Section 92 CPC is to protect
the public trust of a charitable and religious nature from
being subjected to harassment by suits filed against them.
Public trusts for charitable and religious purpose are run for
the benefit of the public. No individual should take benefit
from them. If the persons in management of the trusts are
subjected to multiplicity of legal proceedings, funds which
are to be used for charitable or religious purposes would
be wasted on litigation. The harassment might dissuade
respectable and honest people from becoming trustees
of pubic trusts. Thus, there is need for scrutiny.
-xxx-
[2025] 8 S.C.R. 443

Operation Asha v. Shelly Batra & Ors.

25. In Sugra Bibi v. Hazi Kummu Mia [AIR 1943 Mad 466]
it was held that the mere fact that the suit relates to public
trust of religious or charitable nature and the reliefs claimed
fall within some of the clauses of sub-section (1) of Section
92 would not by itself attract the operation of the section,
unless the suit is of a representative character instituted
in the interest of the public and not merely for vindication
of the individual or personal rights of the plaintiffs.
26. To put it differently, it is not every suit claiming reliefs
specified in Section 92 that can be brought under the
section; but only the suits which besides claiming any of
the reliefs are brought by individuals as representatives
of the public for vindication of public rights. As a decisive
factor the Court has to go beyond the relief and have
regard to the capacity in which the plaintiff has sued and
the purpose for which the suit was brought. 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.[…]”
(Emphasis supplied)

37. In Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan,
reported in (2017) 4 SCC 771, while holding that a trust can be
created by virtue of a conditional gift, this Court had also elaborated
on the purpose behind requiring grant of leave from the court under
Section 92 before a suit can be instituted. It was opined that such a
condition has been legislatively prescribed in order to prevent a public
trust from being harassed or to obviate the institution of reckless or
frivolous suits against its trustees. The relevant observations are
as thus:
“11. The present Section 92 CPC corresponds to Section
539 of the old Code of 1883 and has been borrowed in part
from 52 Geo. 3, c. 101, called Romilly’s Act of the United
Kingdom. A bare perusal of the said section would show
that a suit can be instituted in respect of a public trust by
the Advocate General or two or more persons having an
interest in the trust after obtaining leave of the Court in the
Principal Civil Court of Original Jurisdiction. An analysis
444 [2025] 8 S.C.R.

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of these provisions would show that it was considered
desirable to prevent a public trust from being harassed or
put to legal expenses by reckless or frivolous suits being
brought against the trustees and hence a provision was
made for leave of the court having to be obtained before
the suit is instituted.
(Emphasis supplied)

38. Thus, the grant of leave under Section 92 of CPC serves as a
procedural safeguard, ensuring that public charitable trusts are
protected from mala fide suits that may have the consequence of
impeding their operations. At this stage, however, the court neither
adjudicates upon the merits of the dispute nor confers any substantive
rights upon the parties; what is established is merely the maintainability
of the suit which is sought to be initiated by the plaintiffs.

ii. Conditions to be fulfilled for the applicability of Section 92
of the CPC
39. Section 92 of the CPC has been created for a specific purpose
and to address a specific kind of grievance which has the impact
of affecting public rights as enumerated above. Therefore, not all
suits can be blindly brought within the fold of this provision. In the
facts and circumstances of each case, the court granting leave must
examine whether the suit qualifies certain conditions which align with
the intent behind the creation of this provision. Courts must tread
with caution so as to weed out those suits which are camouflaged
as falling within its ambit just with a view to take an undue benefit
of provision and for causing harassment to the public trust or for the
vindication of personal rights.
40. This Court in Ashok Kumar Gupta (supra) had laid down three
conditions which are a sine qua non in order to invoke Section 92
of the CPC and maintain an action under the said provision. Upon
placing reliance on various decisions of this Court, the conditions
were delineated as follows – (a) the trust in question must be created
for public purposes of a charitable or religious nature; (b) there must
exist a breach of trust or a direction of the court must be necessary
for the administration of the trust; and (c) the relief claimed must be
one or other of the reliefs as enumerated under Section 92(1) of the
CPC. The relevant observations are reproduced as thus:
[2025] 8 S.C.R. 445

Operation Asha v. Shelly Batra & Ors.

“10. While considering the scope of Section 92(1), as it
existed then, a Constitution Bench of this Court observed
in Madappa v. M.N. Mahanthadevaru [Madappa v. M.N.
Mahanthadevaru, (1966) 2 SCR 151 : AIR 1966 SC 878] ,
as under : (AIR p. 881, para 10)
“10. … Section 92(1) provides for two classes 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 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 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 breach 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
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 particular object of the trust, authorisation of
the whole or any 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.”
446 [2025] 8 S.C.R.

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11. The statement of law so laid down was reiterated:
11.1. In Bishwanath v. Radha Ballabhji [Bishwanath v.
Radha Ballabhji, (1967) 2 SCR 618 : AIR 1967 SC 1044] :
(AIR p. 1046, para 7)
“7. 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 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 said section.”
11.2. In Sugra Bibi v. Hazi Kummu Mia [Sugra Bibi v. Hazi
Kummu Mia, (1969) 3 SCR 83 : AIR 1969 SC 884] : (AIR
p. 885, para 5)
“5. 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 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.”
12. Three conditions are, therefore, required to be satisfied
in order to invoke Section 92 of the Code and to maintain
an action under the said 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
(iii) the relief claimed is one or other of the reliefs as
enumerated in the said section.
Consequently, if any of these three conditions is not
satisfied, the matter would be outside the scope of said
Section 92.”
(Emphasis supplied)
[2025] 8 S.C.R. 447

Operation Asha v. Shelly Batra & Ors.

41. As a natural corollary, it follows that in order to successfully establish
that a suit is beyond the scope of Section 92 of the CPC, it would
be sufficient to prove that any one of the conditions enumerated
above has not been met. However, on the other hand, for a suit
to be maintainable under this provision, the plaintiffs must be able
to satisfy the court that all the conditions, or in other words, the
necessary ingredients, under this section, have been fulfilled.

A. The trust being created for a public purpose of a charitable
or religious nature.
42. A trust can be said to have been created for a ‘public purpose’ when
the beneficiaries are the general public who are incapable of exact
ascertainment. Even if the beneficiaries are not necessarily the public
at large, they must at least be a classified section of it and not a
pre-ascertained group of specific individuals.
43. What constitutes “charitable purpose” has been defined under Section
2 of the Charitable Endowments Act, 1890 as follows:
“2. Definition.—In this Act “charitable purpose” includes
relief of the poor, education, medical relief and the
advancement of any other object of general public utility,
but does not include a purpose which relates exclusively
to religious teaching or worship.”
(Emphasis supplied)

Therefore, the term includes relief to the poor, education, medical
relief and the advancement of any other object of ‘general public
utility’, while excluding activities whose purpose relates exclusively
to religious teaching or worship.
44. There remains no doubt that the appellant Society in the instant
case, working towards bringing equity in public health, with particular
focus on providing for the education, treatment and prevention of
tuberculosis, has been created for a ‘public purpose of charitable
nature’. This is clearly evident from its objectives outlined in the MoA
and the beneficiaries that it seeks to serve, amongst others. The same
is an admitted position and we need not delve into the nitty-gritties
of whether the appellant society qualifies this aspect of the aforesaid
condition. What remains contested, however, is that the appellant
society which has been registered under the Societies Registration
448 [2025] 8 S.C.R.

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Act, 1860 cannot be construed to be a ‘trust’ or a ‘constructive trust’
in order to subject it to the jurisdiction under Section 92 of the CPC.

I. Whether a Society can be construed to be a ‘trust or a
‘constructive trust’?
45. A suit under Section 92 of the CPC being one of special nature,
presupposes the existence of a public trust of a religious or charitable
character. The existence of a public trust is essential, whether
express or constructive. Therefore, a crucial condition that needs
satisfaction is whether the institution/organisation in relation to which
certain reliefs are sought can in fact be considered to be a ‘trust’ or a
‘constructive trust’. Having said so, however, an express declaration
clearly signifying that an entity is a trust or that the properties are
trust properties would not be a sine qua non in order to render a
suit under Section 92 maintainable.

a. Circumstances under which the creation of a trust has been
inferred
46. When no formal recognition has been given to the institution, the
creation of a trust can be inferred from the relevant circumstances
surrounding the coming into existence of and functioning of the
institution/entity in question. The Privy Council in Babu Bhagwan Din
and Ors. v. Gir Har Saroop and Ors. reported in 1939 SCC OnLine
PC 47 was concerned with the question whether a public trust of a
religious character existed in the facts and circumstances of the case.
The decision also established when a private temple may become
dedicated to the public by subsequent dealings. While negativing the
contention that the private temple constituted a public trust, emphasis
was particularly laid on two aspects i.e., - First, the land in question
granted by the then Nawab of Oudh in 1781was not a grant to the
idol or an endowment of a temple or a gift made by way of trust for a
public religious purpose. Instead, it was a grant to a private individual
and to his heirs in perpetuity. Therefore, the historical setting and
the circumstances of the grant was given importance to. Secondly,
While acknowledging that a private temple may become dedicated to
the public and morph into a public trust of a religious nature over the
course of years, it was held that such dedication has to be proved
and the mere fact that the public were never turned away and that
offerings from them were accepted would not by itself be sufficient
[2025] 8 S.C.R. 449

Operation Asha v. Shelly Batra & Ors.

proof of dedication, especially in the absence of an inference that
the public user exercised any ‘right’ pertaining to the temple or had
acquired any interest. Another pertinent factual aspect was also that
the various forms of profit, whether by offerings or rents received by
letting out portions of the lands in their own names, were divided
amongst the family. The relevant observations are thus:
“Their Lordships agree with the Chief Court in holding
that the grant of 1781 is not a grant to the idol or an
endowment of a temple or a gift made by way of trust
for a public religious purpose. The grant is to Daryao Gir
and his heirs in perpetuity.[…] The general effect of the
evidence is that the family have treated the temple as
family property, dividing the various forms of profit whether
offerings or rents, closing it so as to exclude the public
from worship when marriage or other ceremonies required
the attendance of the members of the family at its original
home, and erecting samadhs to the honour of its dead. In
these circumstances it is not enough, in their Lordships’
opinion, to deprive the family of their private property to
show that Hindus willing to worship have never been turned
away or even that the deity has acquired considerable
popularity among Hindus of the locality or among persons
resorting to the annual mela. Worshippers are naturally
welcome at a temple because of the offerings they bring
and the repute they give to the idol : they do not have to be
turned away on pain of forfeiture of the temple property as
having become property belonging to a public trust. Facts
and circumstances, in order to be accepted as sufficient
proof of dedication of a temple as a public temple, must
be considered in their historical setting in such a case
as the present; and dedication to the public is not to be
readily inferred when it is known that the temple property
was acquired by grant to an individual or family. Such an
inference, if made from the fact of user by the public, is
hazardous, since it would not in general be consonant with
Hindu sentiments or practice that worshippers should be,
turned away; and as worship generally implies offerings
of some kind, it is not to be expected that the managers
of a private temple should in all circumstances desire to
450 [2025] 8 S.C.R.

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discourage popularity. […] The Chief Court have, in the
opinion of the Board correctly estimated the particular
facts of the case, before them and have rightly negatived
the contentions that the temple is a public temple and that
the property in suit is impressed with a trust of a public
religious character.”
(Emphasis supplied)

47. On the other hand, the Privy Council in Gurunatharudhaswami
Guru Shidharudhaswami v. Bhimappa Gangadhrawappa Divate
reported in 1948 SCC OnLine PC 43, the issue related to whether
the Court under Section 92 could direct the removal of the head of
the mutt while settling a scheme for the administration of public trust
properties despite the fact that the previous swami desired the said
person to succeed as the head of the mutt. The suit under Section
92, apart from the aforesaid relief, was also concerned with whether
the institution in question could be called a ‘public trust’ of a religious
or charitable nature. In deciding the aforesaid, particular reference
was made to the circumstances in which the various properties used
in connection with the institution was acquired. Predominantly, all the
offerings made and gifts given by the public to the Swami was for
the purposes of the ‘Math’ and additional properties were purchased
out of the offerings initially given, except one property which was
concluded as having been received as a gift by the Swami’s for
his own personal benefit since there was no evidence to show that
the said solitary land was ever used for the benefit of the ‘Math’.
Therefore, all the suit properties with the exception of one, were
regarded as accretions to the original foundation/institution, and
subject to an express or constructive trust created for public purposes
of a charitable or religious nature within the meaning of Section 92
of the CPC. The relevant observations are reproduced hereinbelow:
“The learned trial Judge discussed in detail and with much
care the documentary and oral evidence, particularly
in relation to the circumstances in which the various
properties used in connection with the Math had been
acquired. In appeal the High Court again discussed the
evidence in considerable detail, and both Courts reached
the conclusions that the institution, whether it be called a
Math or a Temple, was founded by the public for a public,
[2025] 8 S.C.R. 451

Operation Asha v. Shelly Batra & Ors.

charitable and religious purpose, viz., the worship of the
Swami during his lifetime and of his Samadhi (tomb) after
his death, and for the purpose of the various festivals
which had been started in connection with the institution,
and that the offerings made to the Swami, the properties
purchased out of those offerings and those acquired by
gifts after 1912 (when the Swami assumed control of the
Math), must all be regarded as accretions to the original
foundation, and that all the properties in suit form part of a
trust created for purposes of a charitable or religious nature.
Counsellor the appellant has referred their Lordships to
all the relevant evidence and no useful purpose would be
served by a further discussion of it in detail. Their Lordships
can state shortly and in general terms their reasons for
agreeing with the conclusions of the Courts in India.
-xxx-
The only question in this appeal is whether the suit
properties used for the purposes of the Math belonged
to the Swami at the time of his death, or appertained to
the Math and were subject to an express or constructive
trust created for public purposes of a charitable or religious
nature within the meaning of Section 92 of the Code of
Civil Procedure. Except in regard to one small property,
which will be presently mentioned, their Lordships have no
doubt that the Courts in India were right in answering this
question against the appellant. The evidence establishes
beyond doubt, in their Lordships’ view, that the properties
in suit were either originally given, or were dedicated by the
Swami, to the purposes of the Math which was a charitable
or religious institution. It has been argued by Counsel for
the appellant that even if this be so the trust was not for
public, but for private, purposes. But this is clearly not so.
It is common ground that anybody was at liberty to go at
any time to the Math to worship the Swami and take food
there. The trust was plainly one for public purposes.
The only property in suit which in their Lordships’ view the
respondents have failed to show belonged to the Math is
that comprised in Exhibit D.127 by which a piece of land
452 [2025] 8 S.C.R.

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expressed to be of the value of Rs. 400 situate in Mouji
Harti in Taluka Gadag was conveyed to the Swami, the
motive expressed being the spiritual good of the donor.
There is nothing in the conveyance to suggest that the
land was given to the Swami for the purpose of the Math.
There is no evidence that this land, which is situate, their
Lordships are told, some 40 miles from Hubli was ever
used, or that its rents or profits were applied, for the benefit
of the Math. The fact that the Swami received many gifts
of property for charitable purposes does not disqualify
him from receiving gifts for his own personal benefit, and
their Lordships think that this small piece of land must be
excluded from the decree in the present suit.
By the decree which the learned trial Judge passed it
was declared that the properties in suit were properties
belonging to a public trust of a religious and charitable
character: and that it was necessary to settle a scheme
for the administration of the trust. […]”
(Emphasis supplied)

48. This Court in Bihar State Board Religious Trust, Patna v. Mahant
Sri Biseshwar Das reported in (1971) 1 SCC 574 had to determine
whether the entity in question constituted a religious trust so that it
may be brought within the purview of a ‘public trust’ under Section
2(1) of the Bihar Hindu Religious Trusts Act, 1951. The Trial Court
had also placed a lot of importance on ascertaining how the
properties were originally acquired and since, the respondent did
not produce the Sanads under which the founding Mahant had
acquired the said properties and therefore, the nature of the gifts
and the manner in which they were made could not be determined,
an adverse inference was drawn against the respondent. However,
this conclusion was held to be misplaced since the onus of proof
to show that the properties were being held for public purposes of
a religious or charitable character was said to rest on the appellant
Board who alleged that it was so. In holding thus, this Court also
observed as follows:
i. First, that it is true that a charitable trust might either be created
by a grant for an express purpose or a grant having been made
[2025] 8 S.C.R. 453

Operation Asha v. Shelly Batra & Ors.

in favour of an individual or a class of individuals, and that
individual or that class of individuals might, after obtaining the
grant, create a charitable trust.
ii. Secondly, that a property can be granted solely for the
‘grantee’s’ personal benefit too, without there being any
intention on part of the grantor to fetter the grantee with any
obligation in dealing with the property granted. Courts have
arrived at a conclusion whether the grant was for the benefit
of the public, or an unascertained section of the public, or for
the benefit of the grantee himself, or for class of ascertained
individuals, either by keeping the manner and conditions of
the grant itself at the forefront or, from the other circumstances
of the case. Further, an inference can also be drawn from
the usage and custom of the institution or from the mode in
which its properties have been dealt with along with other
established circumstances.
iii. Lastly, that if a property is described as ‘appertaining to
an organisation/institution’ then for those properties to be
considered as properties of a public trust, the said organisation/
institution must by itself first be a public trust for religious or
charitable purposes.
49. The relevant observations in Bihar State Board (supra) are thus:
“8. It is true that the respondent Mahant did not produce
the original Sanads whereunder certain lands had been
gifted to the founding Mahant by the various zamindars.
They were not produced because, as the respondent
deposed, they could not be traced, but, as stated earlier,
it was not impossible for the Board also, if it wanted
to rely on them, to produce the record, such as that of
Darbhanga Estate, and show therefrom the nature and
the terms of those gifts. The trial court, however, was not
entitled, as we shall presently show, from the mere failure
of the Mahant to produce the original Sanads to draw an
adverse inference which it did against him.
-xxx-
10. Properties of the temple being thus admittedly in the
possession of the Mahants ever since the time of Gaibi
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Ramdasji, the onus of proof that the respondent Mahant
held them on trust for public purposes of a religious or
charitable character was clearly on the appellant Board
who alleged that it was so. The trial Judge was, therefore,
clearly in error in holding that the respondent Mahant ought
to have produced the Sanads and that on his failure to
do so an adverse inference could be drawn, namely, that
had they been produced they would have shown that the
grants to Gaibi Ramdasji were for public purposes of a
religious or charitable character. (See Parmanand v. Nihal
Chand.) [1938 ILR 65 IA 252]
11. The Sanads not having been available, the appellant
Board tried to establish through the oral evidence of six
witnesses (DWs 1 to 6), that the temple was founded and
the properties in question were acquired for the benefit of
the public or a section thereof.[…]
-xxx-
16. True it is that a charitable trust might either be created
by a grant for an expresss purpose or a grant having been
made in favour of an individual or a class of individuals, that
individual or that class of individuals might, after obtaining
the grant, create a charitable trust. […]
-xxx-
18. The existence of a private Mutt, where the property was
given to the head of the Mutt for his personal benefit only,
has in the past been recognised. (See Matam Nadipudi v.
Board of Commissioners for Hindu Religious Endowments,
Madras [AIR 1938 Mad 810] and Missir v. Das [ (1949) ILR
28 Pat 890] .) In such cases there is no intention on the
part of the grantor to fetter the grantee with any obligation
in dealing with the property granted. In each case the Court
has to come to its conclusion either from the grant itself
or from the circumstances of the case whether the grant
was for the benefit of the public or a section of it i.e. an
unascertained class, or for the benefit of the grantee himself
or for a class of ascertained individuals. An inference can
also be drawn from the usage and custom of the institution
[2025] 8 S.C.R. 455

Operation Asha v. Shelly Batra & Ors.

or from the mode in which its/properties have been dealt
with as also other established circumstances.
-xxx-
21. Lastly, reference was made to some of the deeds
of gifts made by the reigning Mahants in favour of their
nominees as successors where the properties were
described as appertaining to the Asthal. Assuming that
the scribes of these documents used the expression
“appertaining to the Asthal” in the sense in which such
expression is sometimes used in the deeds of conveyance,
the expression means things which are appurtenant to and
forming part of the principal property which is the subject-
matter of the instrument. [See Stroud’s Judicial Dictionary,
(3rd Edn.), Vol. I, 177.] The expression “appertaining to
the Asthal” in these deeds, therefore, would at best mean
that the properties formed part of the Asthal and are not
the properties of the Mahant as distinct from those of the
Asthal. (See Sri Thakurji Ramji v. Mathura Prasad [AIR
1941 Pat 354 at 358] .) But unless the Asthal itself is a public
trust for religious or charitable purposes, the properties
appertaining thereto would not be properties of a public
trust for religious or charitable purposes. The use of the
expression “appertaining to the Asthal”, therefore, cannot
lead to the conclusion that the properties in question were
stamped with a trust for public purposes.”
(Emphasis supplied)

50. In another decision of this Court in Kuldip Chand and Another v.
Advocate-General to Government of H.P. and Others reported
in (2003) 5 SCC 46, it was held that the history of the institution,
conduct of the parties and the user of the properties are all factors
to be examined to arrive to a determination as regards a public
trust. The issue related to whether by the mere use of the premises
as a Dharamsala for about 125 years an inference could be drawn
that the same belongs to a public trust. Answering in the negative
and holding that the Dharamsala was a private property and not a
public trust, this Court observed that a dedication for public purposes
and for the benefit of the general public would involve the complete
cessation of ownership on the part of the founder and vesting of the
456 [2025] 8 S.C.R.

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property for the religious object. However, in circumstances where
this dedication is not made via a formal or express endowment, its
character may have to be determined on the basis of the history of
the institution along with the conduct of the founder and his heirs. A
dedication would involve the complete relinquishment of individual
right of ownership. The owner must intend to divest himself of his
ownership in the dedicated property. The relevant observations are
reproduced hereinbelow:
“37. From the materials brought on record by the parties,
as noticed hereinbefore, the following facts emerge: (1)
That the shops were let out to other people. (2) People
could come and stay in the Dharamsala but for stay of more
than three days, only upon seeking permission therefor.
(3) Rent received from the shops was being used by the
owners for their own purpose. (4) The Dharamsala was
being managed/maintained from the personal funds of the
owner. (5) The management and control of the Dharamsala
was all along with the owners. (6) A school was opened
in the Dharamsala. (7) A chowkidar was appointed by
Ranzor Singh to look after the Dharamsala and his salary
used to be paid by the owner from his own pocket. (8)
The Dharamsala could be used for marriage purpose but
only with the permission of the owners. (9) The first-floor
rooms could be used only by the officers or by others with
the permission of the owner. (10) The Dharamsala was
ordinarily being used by the pilgrims only during fair. (11)
The public never contributed anything for maintenance of
the Dharamsala. (12) No member of the public had any say
as regards management of the Dharamsala and had no
legal right to use the same. (13) No member of public the
ever participated in the management of the Dharamsala.
(14) No manager had ever been appointed to look after
and manage the property. (15) The Dharamsala was not
registered under the Sarais Act. (16) There is no evidence
to show that the owners acted as shebaits or trustees.
38. A dedication for public purposes and for the benefit
of the general public would involve complete cessation of
ownership on the part of the founder and vesting of the
property for the religious object. In absence of a formal
[2025] 8 S.C.R. 457

Operation Asha v. Shelly Batra & Ors.

and express endowment, the character of the dedication
may have to be determined on the basis of the history
of the institution and the conduct of the founder and his
heirs. Such dedication may either be complete or partial.
A right of easement in favour of a community or a part of
the community would not constitute such dedication where
the owner retained the property for himself. It may be that
right of the owner of the property is qualified by public
right of user but such right in the instant case, as noticed
hereinbefore, is not wholly unrestricted. Apart from the fact
that the public in general and/or any particular community
did not have any right of participation in the management
of the property nor for the maintenance thereof any
contribution was made is a matter of much significance.
A dedication, it may bear repetition to state, would mean
complete relinquishment of his right of ownership and
proprietary. A benevolent act on the part of a ruler of the
State for the benefit of the general public may or may not
amount to dedication for charitable purpose.
39. When the complete control is retained by the owner —
be it appointment of a chowkidar, appropriation of rents,
maintenance thereof from his personal funds — dedication
cannot be said to be complete. There is no evidence except
oral statements of some witnesses to the effect that Raj
Kumar Bir Singh became its first trustee. Evidence adduced
in this behalf is presumptive in nature. How such trust was
administered by Raj Kumar Bir Singh and upon his death
by his successors-in-interest has not been disclosed. It
appears that the family of the donor retained the control
over the property and, therefore, a complete dedication
cannot be inferred far less presumed. Furthermore, a
trust which has been created may be a private trust or
a public trust. The provisions of Section 92 of the Code
of Civil Procedure would be attracted only when a public
trust comes into being and not otherwise.
-xxx-
42. When a dedication to a charity is sought to be
established in absence of an instrument or grant, the law
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requires that such dedication be established by cogent
and satisfactory evidence of conduct of the parties and
user of the property which show the extinction of the
private secular character of the property and its complete
dedication to charity. It must be proved that the donor
intended to divest himself of his ownership in the dedicated
property. The meaning of charitable purpose may depend
upon the statute defining the same.”.
(Emphasis supplied)

51. In Kuldip Chand (supra), of the several factual circumstances that
led this Court to reach the conclusion that the Dharamsala was not
a public trust in addition to the owner’s intention to not relinquish
ownership of the property, some are especially pertinent – (a) in the
premises of the Dharamsala, some portion was let out as shops to
other people, unconnected with the religious or charitable purpose; (b)
the income/rent received from those shops were not used to further
the purpose of the alleged trust but was being used by the owners for
their own purpose; (c) the maintenance of the Dharamsala was also
being done from the personal funds of the owner and no contribution
was made by the public for the maintenance of the Dharamsala. All
these facts were taken into account in arriving at the decision that
the Dharamsala was not a public trust.
52. On a conspectus of the aforesaid decisions, it could be said that
the method of devolution of the property to the institution or its
acquisition, the intention behind the grant of property i.e. whether it
was for the benefit of the organization or for the personal benefit of
any particular individual/family – in other words, the historical setting
and the circumstances of the grant has been given considerable
significance while concluding whether a trust of a public charitable
or religious nature exists. Even if the grant was initially of a private
nature, any subsequent dealings could transform the organization
into a public trust, however, such a ‘dedication’ to the public must be
sufficiently proved. That the public user or an unascertained class
of individuals could exercise any ‘right’ over the organization and
its properties, could also be a significant factor in concluding that
a public trust has come into existence. The manner of use of the
profits accrued, more particularly, whether it was applied towards
the benefit of the organization or its objectives, could also lead to an
[2025] 8 S.C.R. 459

Operation Asha v. Shelly Batra & Ors.

inference as regards the nature of the organization or the creation
of a public trust.
53. Bihar State Board (supra) has reiterated that a charitable trust may
either be created by a grant for an express purpose or a grant having
been made in favour of an individual(s), who might thereafter create
a charitable trust. Due attention must also be paid to whether the
grant is accompanied with any fetter/obligation or qualified with a
condition, either express or implied, regarding its use by the grantee.
Therefore, the trifecta i.e., the intention, manner and conditions of the
grant might have to be scrutinized to see whether the grant was for
the benefit of the public or an unascertained section of the public. The
intention to create a trust must be indicated, either by words or acts
with reasonable certainty. Other established circumstances, including
the method of use of the property and customs of the institution or
the mode and manner in which they have dealt with the properties
in the past, could also prove to be relevant.
54. Kuldip Chand (supra) had also placed emphasis on the history of the
institution/organization, the conduct of the parties and the beneficiaries
of the properties as relevant factors. Whether the ‘dedication’ was
complete i.e., whether there was an absolute cessation or complete
relinquishment of ownership of the property on the part of the grantor
and a subsequent vesting of the property for the said object, was
also considered a key factor in determining if the dedication was for
public purposes. Furthermore, how the properties are managed, more
specifically, for whose benefit they are being managed; whether the
profits are being re-routed to the public and for their benefit; whether
any personal funds of any founder/proprietor are being applied for the
running of the organization or is it maintained through funds sourced
from the public, are also aspects that one might need to paid due
attention to. Therefore, the overarching and fundamental purpose of
the organization, the mode in which properties are acquired and its
beneficiaries could color it with the characteristics of a trust.
55. However, it must be noted that the aforementioned characteristics
bear high significance, when, as mentioned previously, there has
been no formal recognition of the entity in question and it has not
been given a legal identity otherwise. Now, the next question would
be, how an entity which satisfies the aforementioned criteria but has
been, much later in time, registered as a society under the Societies
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Registration Act, 1860, would be treated in the eyes of law. The
answer to this lies in the decision given by the Full Bench of the
Kerala High Court in Kesava Panicker v. Damodara Panicker and
others reported in 1974 SCC OnLine Ker 58.
56. In Kesava Panicker (supra), the Full Bench had to decide, on the
face of it, a strikingly similar question i.e., whether a society registered
under the Societies Registration Act, 1860 could be considered to
be a trust or a constructive trust for the purposes of Section 92 of
the CPC. However, the facts revealed that a public trust was formed
much before the society was registered. It is in such circumstances
that the Court arrived at the conclusion that the subject school, its
properties and monies formed a public trust of a charitable nature
and that the suit under Section 92 was maintainable. The High Court
elaborated as follows:
i. First, several factors led to the conclusion that the trust had
been created, – that the entire community in the area took an
active interest and contributed funds for the purpose of creating
a ‘trust fund’ in order that the school may be established; A
committee was formed for collecting funds either as donations or
as share capital; that long before the registration of the society,
funds were collected from the public towards share money; and
there were other forms of contributions as well. This according
to the Full Bench reflected that there existed a clear intention
to form a trust and also that a trust fund was created. These
funds were utilized for the construction of the school building
and for other ancillary purposes including establishing and
maintaining the other functions of the school.
ii. Secondly, referring to Tudor on Charities, Sixth Edition, pg
128, it was opined that a trust may be created by any language
sufficient to show the intention, and no technical words are
necessary. Further, it was stated that the use of words such as
‘intent’ or ‘purpose’ or a direction that a fund shall be applied
by, or be at the disposal of a person for certain intended
charitable purposes, may very well be as effective as the use
of the word ‘trust’.
iii. Lastly, the mere factum of registration of a society under the
Societies Registration Act, 1860 could not change the character
of the properties which had already been constituted as trust
[2025] 8 S.C.R. 461

Operation Asha v. Shelly Batra & Ors.

properties and impressed with the trust, especially when a trust
has clearly been created by the public for a public charitable
purpose i.e., the establishing, maintaining and running of a
school. Any addition to the said properties would also possess
the characteristics of a trust property.
57. The relevant observations of the Full Bench are reproduced
hereinbelow:
“5. When once it has been found that the school building
and the furniture etc. as well as the funds of the school
did not belong to the appellant as is contended by him
he was certainly liable to account for the property of the
school including the monies and the direction to account
cannot also be interfered with. Considering the nature
of the contentions raised by the appellant the direction
to remove him from management must also stand. It is
further essential that a scheme must be framed for the
management of the school and the decree permitting that
being done cannot also be altered.
6. All this we have said on the basis that the school and
its properties and its monies formed a public trust of a
charitable nature and that a suit such as the one envisaged
by Section 92 of the CPC and which was the type of suit
that was instituted - it is not even suggested that this is
not so would be permissible and that the suit in question
was maintainable and that the plaintiffs were entitled to
sue. Regarding those questions the appellant’s Counsel
vehemently argued that there has been no trust at all
justifying such an action. […] For a suit under Section 92
there must be a public trust of the religious or charitable
character. Herendra Nath Bhattacharya v. Kaliram Das,
(1972) 1 SCC 115 : AIR 1972 SC 246. The allegation in
the plaint is that there is such a charitable trust and that
the appellant acting as a trustee de son tort has misused
the funds of the trust and have mismanaged the properties.
If the existence of a trust as alleged is established the
suit will have to be decreed. We shall presently consider
whether there is such a trust as alleged. Before going to
that question we shall refer to the other decisions as well
relied on by counsel for the appellant.
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7. Counsel very strongly relied on the decision in G.
Chikka Venkatappa v. D. Hanumanthappa, (1970) 1 Mys
LJ 296. The decision is authority for the proposition that
the formation of a society under the Societies Registration
Act to carry out any charitable or useful or social purpose
cannot be regarded as amounting to creation of a trust
for the application of Section 92 of the CPC. The effect of
the Societies Registration Act is not to invest properties of
the society with the character of trust property. Even if the
purpose for which the society was formed was charitable
purpose the property acquired for this purpose will belong
to the society and there is no trust and no trust can be
predicated. So it was urged that even if the properties were
acquired by the Keralasseri High School Society there
was no trust which would enable a suit being instituted in
accordance with the provisions of Section 92 of the CPC.
If we may say so, with great respect, the position stated
in the decision is the correct one. That was stated with
reference to the facts of that case and the conclusion
arrived at after discussing the facts is seen from paragraph
21 of the judgment which we shall extract.
“21. On the evidence, therefore, there cannot be the
slightest doubt that the construction of this building
was purely and exclusively an activity and concern
of the registered society called the Devanga Sangha.
It was not and cannot be described as a matter in
which the entire Devanga Community as Community
took any interest or any steps in such a way as to
make it possible to suggest that a specified item
of property was dedicated by it, or some members
thereof, to public purpose, viz. some welfare of the
community at large.”
8. On the other hand the facts of this case show that the
entire community in the area took an active interest and
contributed funds for the purpose of creating a “trust fund”
in order that a school may be established. Though it was
what was called the “Keralasseri Food Committee” that
first made a move for the establishment of a High School
by submitting Ext. A9 memorandum to the Chief Minister,
[2025] 8 S.C.R. 463

Operation Asha v. Shelly Batra & Ors.

Madras, the public took up the matter and there was a
meeting of the public on the 1st February, 1947 and at
that conference a resolution was passed to start a private
school. A committee was formed for collecting funds
either as donations or as share capital. Ext. A14 is the
proceedings of that meeting embodying the decisions taken
at the meeting. These proceedings clearly indicate that the
intention was to create a trust fund. It is so specifically
stated in Ext. A14. We shall extract the relevant part.
(Text in Malayalam Language.)
9. Long before the registration of the society funds were
collected from the public towards share money is evidenced
by Exts. A3, A4, A24 and B26 receipts. There have been
contributions as well, has been established and this aspect
has been discussed in the judgment of the court below. It
is thus clear that there has been a clear intention to form
a trust and that a trust fund was created and that the fund
was utilised for the construction of the school building and
for the ancillary purposes for establishing and maintaining
the work of the school.
“A trust may be created by any language sufficient
to show the intention, and no technical words are
necessary. The use of such words as ‘intent’ or
‘purpose’ or a direction that a fund shall be applied
by, or be at the disposal of, a person for the charitable
purposes intended, may be as effectual as the use
of the word ‘trust’. Even the words ‘authorise and
empower’ may be enough, upon the true construction
of the instrument”. (See Tudor on Charities, Sixth
Edition, Page 128).
10. No corporation would be created within the meaning
of the word “incorporated” occurring in Entry 44 of List 1
of the Seventh Schedule to the Constitution by the
formation and registration of a society under the Societies
Registration Act. The society would continue to remain
as an unincorporated society though under the Societies
Registration Act it would have certain privileges some
of them being analogous to those of corporations. See
464 [2025] 8 S.C.R.

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Board of Trustees, Ayurvedic and Unani College, Delhi v.
State of Delhi, AIR 1962 SC 458. If there was a trust
created by the public for a public charitable purpose
namely establishing, maintaining and running a school
the fact of the registration of a society could not change
the character of the properties which had already been
constituted as trust properties and impressed with the
trust and any addition to those properties must also have
the same character.
11. We have therefore no hesitation in reaching the
conclusion that a trust has been created and the High
School buildings, the land, all appurtenances, furniture,
equipment and all other properties are trust properties.
-xxx-
13. The suit is maintainable. By virtue of the registration
of the society the nature of the trust properties has not
been changed and on the allegations and the findings, a
suit for the reliefs asked for is competent. We dismiss this
appeal with costs.”
(Emphasis supplied)

58. As indicated above, a crucial factual aspect in Kesava Panicker
(supra), was that the public trust was already created by the public
and that it pre-existed the registration of the society. It was in such
circumstances that it was held that a ‘subsequent’ registration of the
same entity as a society under the Societies Registration Act, 1860
would not take away from its character as a public trust and affect
the maintainability of a suit under Section 92 of the CPC. A trust was
already created by the public for a public charitable purpose and the
properties were already imbued with the character of trust properties
and impressed with the trust. The mere registration as a society to
alter or circumvent the status of things which was already present,
was what was disallowed. However, whether this factual peculiarity
has a bearing on the facts of the present matter remains to be seen.

b. Views of different High Courts on the issue
59. Over the period of time, several decisions of different High Courts
have been faced with the same question which remains at the centre
[2025] 8 S.C.R. 465

Operation Asha v. Shelly Batra & Ors.

of the present litigation i.e., whether a society can be considered
to be a public trust for the purposes of Section 92 of the CPC. The
High Court of Mysore in C. Chikka Venkatappa & Another v. D.
Hanumanthappa & Others reported in 1970 SCC OnLine Kar 16 was
concerned with a suit filed under Section 92 in relation to ‘Devanga
Sangha’, a society registered under the Mysore Societies Registration
Act of 1904 whose object was to advance the educational, economic
and social welfare of the members of the Devanga community who
are a section of Hindus. The plaintiffs prayed that the defendants be
removed from the office they held in the Devanga Sangha and that
they also be directed to render true and proper accounts as regards
the collections made by them on behalf of the Sangha in connection
with the Silver Jubilee Building Fund of the Sangha. The suit was
decreed and while the first prayer was not granted, the second prayer
was granted only against two out of the five defendants. The High
Court while holding that the suit was entirely misconceived on law
and also wholly unnecessary on facts, observed as follows:
i. First, that the words ‘creation of a trust’ under Section 92
obviously has reference to similar phraseology employed in
the Indian Trusts Act, 1882 although the same pertains to
‘private trust’. ‘Trust’ is therefore, an obligation annexed to the
ownership of property.
ii. Secondly, due regard was given to the object behind the
enactment of the Karnataka Societies Registration Act, 1960
and the Mysore Societies Registration Act of 1904 respectively,
along with the express provisions in those legislations which
provided that the property, whether moveable or immoveable,
belonging to a society shall be deemed to be vested in the
Governing Body of the Society unless it is separately vested
in trustees. While also referring to the provisions which provide
that a society may sue or be sued, it was concluded that the
obvious effect of these legal provisions would be that such
property would belong to the society and be owned by the
society like any other individual since the society by itself is
invested with the character of a legal person. This is despite
the fact that the society’s object may be described as being
one of a charitable nature and that it acquires property for
the purpose of achieving those objects. The existence of a
trust, an author of the trust and a transfer of the said property
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as trust property to any trustee cannot be predicated in such
circumstances where a society is involved. Further, it cannot
be said that whenever a society acquires property, it declares
itself as a trustee in respect of that property. On the contrary, the
obligation to use the property for the purposes of the society is
an obligation which is inherent or implicit in the MoA, which is
the basic document constituting the society. The same cannot
be construed as amounting to any declaration of trust in respect
of a specified property.
iii. Thirdly, after clarifying the aforesaid differences in law between
a trust and a society, it was stated that it would not be possible
to begin with the assumption that there is a trust created for
public purposes for the invocation of Section 92 of the CPC,
unless some special circumstances are made out.
iv. Fourthly, it was stated that one must be able to draw a difference
between an act which is purely and exclusively an activity or
concern of the registered society in contrast to a matter in which
an entire community takes any interest or steps, which may
suggest that a specified item of property was dedicated for a
public purpose or for the welfare of the community at large.
Unless there are indications of a separate vesting of the society’s
property in a trust, effect must be given to the normal provisions
of law which vest the property in the Executive Council.
v. Lastly, while agreeing that a trusteeship can be vested in a
‘committee of persons’ and that they can be treated as trustees
for the purposes of Section 92, it was however, held that the
same would be different from the vesting of properties in the
governing body of a society registered under the Societies
Registration Act, 1860.
60. The relevant observations in Chikka Venkatappa (supra) are
reproduced hereinbelow:
“2. […] There is in Bangalore an association called the
Devanga Sangha, which was registered as a society on
the 12th of February 1924 under the Mysore Societies
Registration Act of 1904. Like all other societies of that
nature, the Sangha is governed by a Memorandum of
Association, a set of Articles of Association and subsidiary
bye-laws framed by the Society. The objects of the
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Operation Asha v. Shelly Batra & Ors.

Sangha set out in the Memorandum are to advance the
educational, economic and social welfare of the members
of the Devanga community who are a section of Hindus.
The membership is limited to those belonging to the said
community and is subject to payment of donations or
periodical subscriptions. There are, as in other cases,
different classes of members like Patrons who are called
by two different Kannada names ‘Poshaka and Sahavaka’,
Life members. Hon. members and ordinary members. The
management of affairs of the Sangha is vested in a body
called the Executive Council consisting of a President,
four Vice-Presidents, a Secretary, a Treasurer and 50
other members.
-xxx-
16. It is clear that the trust referred to in this section is
one actually created for a public purpose, whether that
purpose be a charitable one or a religious one. The choice
of the words ‘creation of a trust’ obviously has reference
to the similar phraseology adopted in the Indian Trusts
Act. ‘Trust’ is an obligation annexed to the ownership of
property—vide S. 3 of the Act. A trust is created when
the author of the trust indicates with reasonable certainty
by any words or acts an intention on his part to create
thereby a trust, the purpose of the trust, the beneficiary
and the trust property and (unless the trust is declared by
will or the author of the trust is himself to be the trustee)
transfers the trust property to the trustee—(vide S. 6 of
the Act).
17. The question is whether the formation of a society under
the Societies Registration Act to carry out any charitable
or useful or social purpose can at all be regarded as
amounting to creation of a trust in the sense mentioned
above. The Societies Registration Act is an Act promulgated
for the ??? of making provision for regulating, controlling
and improving the legal condition of societies established
for the promotion of literature, science or fine arts or for
the diffusion of useful knowledge or for any charitable
purposes. The Act of 1960 which was substituted for the
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previous Mysore Act No. 3 of 1904, has, however, limited
the object to the mere provision for registration of literary,
scientific, charitable or other societies in the State of
Mysore. The manner in which the said objects are given
effect to in the two statutes is the same. They enable
individuals to get themselves formed into an incorporated
body, like Corporations or Companies with a separate legal
personality conferred upon the incorporated body. And
express provision is made (in S. 6 of the Act of 1904 and
S. 14 of the Act of 1960) to the effect that the property,
moveable or immoveable, belonging to a Society registered
under the Act, unless it is vested separately in trustees,
shall be deemed to be vested for the time being in the
Governing Body of the society. S. 7 of the Act of 1904
corresponding to S. 15 of the Act of 1960 makes provision
for the manner in which the societies may sue or be sued.
The general provision is that every society registered under
the Act may sue or be sued in the name of President or
other office bearer specified for the purpose by the Rules
and Regulations of the Society.
18. The obvious legal effect of these provisions is that
although the object of a society may be described as a
charitable purpose and by its regulations it is empowered to
acquire property and use the same for achieving its objects,
the property belongs to the society and is owned by the
society like any other individual, because, the society is
itself invested with the character of a legal person by virtue
of the provisions of the statute. It is not property in respect
of which it is possible to predicate a trust, an author of the
trust and a transfer of the said property as trust property
to any trustee, nor can it be said that whenever a society
acquires property, it declares itself as a trustee in respect
of that property. The obligation to use the property for
purposes of the society is an obligation which is inherent
or implicit in the Memorandum of Association which is the
basic document constituting the society. That does not
amount to nor can it be, by any stretch of imagination,
read as amounting to any declaration of trust in respect
of a specified property.
[2025] 8 S.C.R. 469

Operation Asha v. Shelly Batra & Ors.

19. Such being the clear position in law in regard to trusts
and in regard to registered societies and the clear difference
between the two, the prima facie opinion in this case should
necessarily be that unless some special circumstances are
made out, it is not possible to start with an assumption
that there is a trust created for public purposes, in regard
to which the provisions of S. 92 CPC. could be invoked.
-xxx-
25. On the evidence, therefore, there cannot be the slightest
doubt that the construction of this building was purely
and exclusively an activity and concern of the registered
society called the Devanga Sangha. It was not and cannot
be described as a matter in which the entire Devanga
community as community took any interest or any steps
in such a way as to make it possible to suggest that a
specified item of property, was dedicated by it, or some
members thereof, to public purpose, viz., some welfare
of the community at large.
26. […] All that happens is that the registered society
acquires a certain item of property which, under the law,
must be deemed to vest in the governing body unless
they take steps to vest it separately in trustees. There is
no suggestion here of any such separate vesting. Hence
effect should be given to the normal provisions of law
which vest the property in the Executive Council.
-xxx-
29. The other four-decisions are relied upon to make out
one general proposition, namely, that for the purpose of
applying the provisions of S. 92 CPC., it is not obligatory
that the trustees should be individual human beings, but
may be statutory committees or statutory bodies including
incorporated bodies. In T. Sitharama Chetty’s case [ILR. 39
Mad. 700.] , it was held that an Area Committee appointed
under one of the provisions of the Madras Endowments
Act, which was in management of a certain temple, may
clearly be regarded as a trust for the purpose of S. 92
CPC. In Commissioner, Lucknow Division’s case [AIR.
470 [2025] 8 S.C.R.

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1937 PC. 240.] , there was an unincorporated informal
committee of persons who collected subscriptions for a
specific purpose. In Gomathinayagam’s case [AIR. 1963
Mad. 387.] , the founder of a certain school who had
endowed properties for purposes of the school transferred
those properties on trust to a Committee of persons who
got themselves incorporated into a company without any
motive of profits under S. 26 of the Indians Companies
Act of 1913 (corresponding to S. 25 of the 1956 Act). In all
these cares, it was held that the fact that the trusteeship
vested in a Committee of persons, whether incorporated
or not, made no difference to treating them as trustees
for the purpose of S. 92 CPC. But that does not carry the
plaintiffs’ case any further in this case. In every one of
these decided cases, there was a clear creation of a trust
for public purposes within the meaning of S. 92 CPC. as
explained by us. In every case, there was already either
a temple with endowed properties managed by the Area
Committee or an actual transfer of property on trust by
the founder of the school in favour of the Committee or
the collection of funds by an informal committee for a
specified public purpose amounting in law to a declaration
of trust by themselves.
30. But one case which comes very near the present case
is that in P. Mahadevayya’s case [53 Mys H.C.R. 167] .
That was a case of a registered society formed for the
educational advancement of the Veerasaiva community
which became the victim of serious differences of opinion
between its members resulting in a split threatening to
put an end to the useful activities of the society. A suit
was filed with the consent of the Deputy Commissioner
of the relevant district under S. 92 CPC. for the framing of
a scheme. The bulk of the reported judgment discusses
the facts and there is no discussion of the legal principles
adverted to by us above. The Court seems to proceed upon
the assumption that the case was one to which S. 92, CPC.
could be rightly applied. There is reference made to the
case reported in T. Sitharama Chetty’s case [ILR. 39 Mad.
700.] at page 175 of the Mysore High Court Reports. The
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contention disposed of by reference to the said decision
was that according to one of the rules governing the society,
no changes in the rules can be made without the consent
of ¾th of the members of the general committee and that
as the rules themselves provided a proper procedure, it
was not competent for the Court to interfere and frame
a scheme. This is what the Court has stated in rejecting
that contention:
“We do not think that there is much substance in
this contention. The fact that there is a statutory
body or committee which governs an institution
does not bar the jurisdiction of the Court to frame a
scheme because the Court is the ultimate protector
of charities and it is the inherent right of the Court
always to intervene to safeguard and preserve a
charity whenever it is necessary to do so. In Sitharama
Chetty v. S. Subramanja Iyer (ILR. 39 Mad. 700)
where a similar contention was raised that the Court
ought not to frame a scheme for a temple when
there is a temple committee functioning under a
statute, their Lordships Sir John Wallis and Seshagiri
Ayyar repelled the contention and held that they had
jurisdiction to do so.”
31. It will be seen that the analogy sought to be drawn
between the case in Sitarama Chetty’s case [ILR. 39
Mad. 700.] and the case before the erstwhile High Court
of Mysore may not have been possible if the great
distinction that existed between a temple governed by an
Area Committee under the Madras Endowments Act and
a society registered under the Societies Registration Act
had been brought to the notice of the Court. The Area
Committee referred to in Sitharama Chetty’s case [ILR. 39
Mad. 700.] is certainly not the same as the governing body
of a society registered under the Societies Registration Act.
32. As the ruling relied upon did not discuss the principle
of law ??? before us we do not consider it to be a clear
authority in support of the proposition sought to be made by
Mr. Nagaraja Rao on behalf of the plaintiffs. If the decision
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should be regarded as laying down by implication, that
even in the case of an ordinary society registered under
the Societies Registration Act, a matter exclusively and
completely governed by the provisions of the said Act and
the general law, can be brought within the scope of S.
92 CPC. as if the position is clearly one of creation of a
trust for public purposes, with respect, we find ourselves
unable to agree with it.”
(Emphasis supplied)

61. On the other hand, the High Court of Bombay in Shri Dnyaneshwar
Madhuradwait Sampradayik Mandal, Amravati v. Charity
Commissioner, Bombay and another reported in 1980 SCC
OnLine Bom 120 while dealing with Section 2(13) of the Bombay
Public Trusts Act, 1950 observed that a society registered under the
Societies Registration Act, 1860 having an object which is religious
or charitable or both, would be covered by the definition of a ‘public
trust’ under Section 2(13). However, the said observation was made
since the aforesaid State legislation which governed public trusts
explicitly included societies functioning for a public purpose of a
religious or charitable nature within the definition of a ‘public trust’.
The relevant observations are thus:
“7. Section 2(13) of the Bombay Public Trusts Act, 1950
which defines “public trust” is in the following terms:
“2(13) “public trust” means an express or constructive
trust for either a public, religious or charitable purpose
or both and includes a temple, a math, a wakf,
church synagogue, agiary or other place of public
religious worship, a dharmada or any other religious
or charitable endowment and a society formed either
for a religious or charitable purpose or for both and
registered under the Societies Registration Act, 1860.”
8. The present case falls under the last clause of this
definition and satisfies both the conditions, namely, that
it is a registered society under the Societies Registration
Act and as pointed out above, the society was formed for
a religious purpose.”
(Emphasis supplied)
[2025] 8 S.C.R. 473

Operation Asha v. Shelly Batra & Ors.

62. In Board of Governors St. Thomas School and Others v. A.K.
George and another reported in 1984 SCC OnLine Cal 56 leave
to institute a suit under Section 92 of the CPC pertaining to St.
Thomas School, a statutory body constituted under the St. Thomas
School Act, 1923 was sought on the allegation that the Board of
Governors were not properly constituted and that the trust property
was not being properly managed by the trustees i.e., the Board of
Governors of the said school. Leave was granted ex-parte on the
ground that the school constituted a public charitable trust. While
holding that the school was not a public charitable trust, the High
Court of Calcutta observed that the fact that a provision under the
St. Thomas School Act, 1923 provided that all the property vested
in the Governors by itself was not sufficient to lead to the conclusion
that they were held in trust or that a charitable trust of a public nature
was created. The relevant observations are thus:
“11. As regards the next contention that there is no public
charitable trust in respect of the St. Thomas School which
is expressly governed by the said St. Thomas School
Act 1923, it was tried to be contended on behalf of the
respondents by referring to Section 11 of the said Act
that all the property vested in the Governors by or under
this Act should be deemed to be held in Trust, thereby
meaning constructive charitable trust of a public nature.
This contention, in our opinion, is totally devoid of any merit
in view of the fact that Section 11 of the said Act does
not at all either expressly or impliedly purport to create
a charitable trust of a public nature. St. Thomas School
and its property have to be administered in accordance
with the provisions of St. Thomas School Act 1923 and
if there is any breach of the provision of the Act then the
remedy is to be sought under the said Act. The mode of
constitution of the Board of Governors had been specifically
laid down in S. 2 of the said Act. In these circumstances
the contention that the St. Thomas School is a public
charitable trust cannot be sustained. Hence the instant suit
filed under Section 92 of the Civil P.C. with the leave of
the Court granted under the said section is not competent
and the ex parte leave that was granted is liable to be
revoked and withdrawn. […]I have already held that the
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St. Thomas School and its properties do not constitute a
public charitable trust at all but they are governed by the
provisions of the St. Thomas School Act, 1923 (Bengal
Act XII of 1923).”
(Emphasis supplied)

63. In The Advocate General v. Bhartiya Adam Jati Sewak Sangh and
Ors reported in MANU/HP/0182/2001, the High Court of Himachal
Pradesh held that even if the defendant no. 1 and 2 societies
respectively were performing charitable functions, the same by itself
would not attract the provisions of Section 92 of the CPC since there
was no evidence that any trust was expressly or impliedly created.
In the said case also the societies functioning for a charitable aim,
i.e., the social and economic upliftment of the weaker section of
the society and money was being raised from various sources,
including the public at large as well as in the form of grants-in-aid
from the government. Further, the High Court interpreted Section 5
of the Societies Registration Act, 1860 to mean that if the properties
were already vested in trustees, only then it shall not be deemed
to be vested in the governing body of the society. In other words,
the subsequent registration of a trust as a society would not have
the effect of altering the properties belonging to the trust and the
trustees would continue to be the legal owners of such properties.
It adopted the interpretation given in Kesava Panicker (supra). In
this context, it was held that there was no evidence to show that any
funds were collected from the general public before the defendant
nos. 1 and 2 societies respectively came to be registered as societies
and therefore, no trust as such could be said to have been existed.
Hence, all the monies received or collected by them would vest in
the governing body of the society only. Therefore, there being no
trust and the defendant nos. 1 and 2 respectively admittedly being
societies, the suit under Section 92 was not maintainable. The
relevant observations are reproduced hereinbelow:
“17. At this stage, reference is required to be made to Section
5 of the Societies Registration Act, 1860, which provides :
The property, movable and immovable, belonging to
a society registered under this Act, if not vested in
Trustees, shall be deemed to be vested, for the time
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Operation Asha v. Shelly Batra & Ors.

being in the governing body of such society, and in
all proceedings, civil and criminal may be described
as the property of the governing body of such society
by their proper title.
(Emphasis supplied in original)

18. Under the above provisions the properties shall not
vest in the Society, if such properties were already with
the trustees. In other words, the registration of a Trust
as a Society under the Societies Registration Act, 1860
would not alter the position and the properties belonging
to the trust would not vest in the society but the trustees
would continue to be the legal owners of such properties.
-xxx-
21. In the present case, there are neither pleadings nor
evidence to show that any funds were collected from the
general public before the Defendants No. 1 and 2 came to
be registered as Societies under the Societies Registration
Act, 1860. Therefore there was no trust as such and vide
Section 20 of the Societies Registration Act, 1860, all moneys
received by the Defendants No. 1 and 2 either by way of
grants-in-aid or in the form of contributions from the public
would vest in the societies, that is, Defendants No. 1 and 2.
-xxx-
24. In the present case, the very first condition is lacking.
As stated above, it is the admitted case of the Plaintiff that
Defendants No. 1 and 2 are “societies” registered under
the Societies Registration Act, 1860. There is no averment
and/or evidence that any trust was expressly or impliedly
created. Even if Defendants No. 1 and 2 are carrying on
charitable purpose, the same by itself would not attract
the provisions of Section 92, Code of Civil Procedure.
25. On the facts and circumstances of the case neither the
Defendants No. 1 and 2 are public trusts nor the Defendants
No. 3 to 7 are the trustees. The issue is decided against
the Plaintiff.”
(Emphasis supplied)
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64. In Abhaya (supra), the Kerala High Court also refused to accept
the contention that a society can be considered to be a public trust
for the purposes of Section 92 of the CPC. The organisation therein
was registered under the Travancore-Cochin Literary, Scientific, and
Charitable Societies Registration Act, 1955 and was constituted with
the objectives of serving the mentally-ill, improving the social and
non-social environment of the mental hospitals in Kerala, provision
of facilities to improve the life-conditions of the mentally-ill, and
rehabilitation of the recovered patients, especially those patients
who have no familial support. The required capital of the society
was also raised by membership/subscription fees, donations, loans,
grants and other voluntary contributions, including from the public.
Allegations of mismanagement, misconduct and misappropriation
were levelled against the defendants. While dismissing the original
petition, it was held as follows:
i. First, that there was absolutely nothing in the Rules and
Regulations of the Memorandum of Association which indicated
that prior to the formation and registration of the society there
was a trust having any property. In such a scenario, the
formation of a society to carry out any charitable or social
purpose would not ipso facto make the society a public trust,
especially since the society is also empowered to acquire
property to use for its purposes. Such a property which is then
acquired will only be the property of the society which is a legal
person by virtue of the provisions of the statute and will not
be a property in respect of which a trust can be predicated. It
cannot be said that whenever a society acquires property, it
declares itself as a trustee in respect of that property. While
it does have a legal obligation to use the property for its
prescribed purposes and strictly in accordance with the Rules
and Regulations of the Memorandum of Association, by no
stretch of imagination can it be considered as a declaration
of trust.
ii. Secondly, on a reading of Section 8 of the Travancore-Cochin
Literary, Scientific, and Charitable Societies Registration Act,
1955, which is pari materia to Section 5 of the Societies
Registration Act, 1860, it was inferred that unless the properties
had already vested separately in trustees, they shall vest in the
governing body of the society.
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Operation Asha v. Shelly Batra & Ors.

iii. Thirdly, it was opined that a procedure for the removal of the
existing governing body, appointment of a fresh governing body
and framing a scheme for the better and efficient management
of the society was already contemplated within the Travancore-
Cochin Literary, Scientific, and Charitable Societies Registration
Act, 1955. Such a relief could be availed by the members
of the society as well, however, provided that a minimum of
10% of the members on the rolls of the society join together.
It was opined that this express provision cannot be sought
to be circumvented by the aggrieved members of the society
by making an allegation that the society is a public trust and
adopting the route under Section 92 of the CPC instead.
iv. Lastly, while acknowledging that it is the allegation in the plaint
that determines the jurisdiction of the court under Section 92
of the CPC and that if a breach of trust is ‘alleged’, the grant
of leave may be given, it was cautioned that when the very
existence of a trust of any kind is seriously disputed/denied,
the court must prima facie satisfy itself of the existence of the
trust. It is true that if the contention is that there is no public
trust but only a private one, a decision on whether the trust is
of a public or private nature can only be made after taking in
evidence. However, the same principle would not apply when
the issue is that a trust by itself is absent in the circumstances.
There must be some material to convince the court that a trust
has been created.
65. The relevant observations made in Abhaya (supra) are reproduced
hereinbelow:
“7. In the 1st paragraph of the petition itself it is admitted
that the first petitioner-organisation “Abhaya” was
constituted with the objectives of serving the mentally ill-
persons, improving the social and non-social environment
of the mental hospitals of Kerala, providing the mentally
ill-persons with facilities to improve their life conditions
and rehabilitating the recovered patients, especially those
who are unwanted by their families. It is also admitted
that in a general body meeting of the 1st petitioner held
on 5-1-1986 it was decided to register the 1st petitioner-
organisation under the provisions of Act XII of 1955 and
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the same was registered with Reg. No. 71 of 1986 by the
Registrar of Co-operative Societies having its registered
office at “Varda” Nandavanam, Trivandrum. In paragraphs
3 to 13 the respondents 1 to 6 have extracted the various
provisions of the Rules and Regulation of the Society. A
copy of the Memorandum of Association is produced by
respondents 1 to 6. The Memorandum of Association
shows that the name of the Society is “Abhaya” and its
registered office is at “Varada” Nandavanam, Trivandrum.
The area of activity of the Society is limited to State of
Kerala. Clause 4 of the Rules and Regulations of the
Memorandum of Association deals with the main objectives
of the Society, which reads as follows:—
4. The main objectives of the Society shall be the
service of the mentally ill, alcoholics and drug addicts,
women in distress and children and other groups in
distress. The society shall aim at—
(a) Improving the social and non-social environment
of the mental hospitals of Kerala.
(b) Providing the mentally ill with facilities to improve
their life conditions.
(c) Rehabilitating the recovered patients, especially
those who are unwanted by their families.”
[…] Clause 10 deals with the capital of the society, which
reads as follows:—
“10. The required capital of the society shall be
raised by the membership and subscription fees
and donations, loans, grants and other voluntary
contributions from the public State and Central
Governments and other institutions or organisations.”
[…]
8. It is true that Clause 4 of the Rules and Regulations
shows that the Society is constituted with the main
objectives of rendering service of the mentally ill, alcoholics
and drug addicts, women in distress and children and
other groups in distress. But, there is absolutely nothing in
[2025] 8 S.C.R. 479

Operation Asha v. Shelly Batra & Ors.

the Rules and Regulations of Memorandum of Association
to show that prior to the formation and registration, of
the society there was a trust haying any property. On the
other hand, a reading of the memorandum of Association
shows that there were 7 promotees and they convened
a General Body meeting on 5-1-1986. The General Body
held on 5-1-1986 decided to register the 1st petitioner as
a Society under Act XII of 1955. Clause 10 shows that on
the date of formation of the Society there was no property
over which the Society had any ownership. A formation
of a Society under the provisions of Act XII of 1955 to
carry out any charitable or social purpose will not make
the Society a public Trust. The Society is empowered to
acquire property also to use for its purposes. But, that
property which is to be Acquired will only be the property
of the Society and it will not be a property in respect of
which it is possible to predicate a trust. The preamble
of the Act XII of 1955 is relevant. It states as follows:—
“Whereas it is expedient that provision should be
made for improving the legal condition of Societies,
established for the promotion of literature, science, or
the fine arts, or for the diffusion of useful knowledge
or for charitable purposes.”
Section 3 of the Act provides that any seven or more
persons associated for any charitable purpose may by
subscribing their names to a memorandum of association
and filing the same with the Registrar, form themselves into
a society. Section 32 of the Act provides that the following
Societies may be registered under the Act:
“Charitable societies, societies established for the
promotion of science literature or the fine arts, the
diffusion of useful knowledge, the foundation or
maintenance of libraries or reading rooms for general
use among the members or open to the public, or
public museums and galleries of painting and other
works of art collections of natural history mechanical
and philosophical inventions, instruments or
designs.”
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Section 8 of the Act deals with the property of the Society.
It reads as follows:—
“8. Property of society how vested. The property,
movable and immovable, belonging to a society, if
not vested in trustees, shall be deemed to be vested,
for the time being, in the governing body of such
society, and in all proceedings, civil and criminal,
may be described as the property of the governing
body of such society by their proper title.”
A reading of Section 8 makes it clear that unless the
properties had already vested separately in trustees, it
shall vest in the governing body of the society. […] Section
25 deals with application to court for dissolution framing
schemes, etc. Section 25 reads as follows:—
“25. Application to Court for dissolution, framing a
scheme, etc. — (1) When an application is made by
the State Government or ten per cent of the members
on the rolls of a society to the District Court within
the jurisdiction of which the society is registered,
the Court may, after enquiry and on being satisfied
that it is just and equitable pass any of the following
orders:—
(a) removing the existing governing body and
appointing a fresh governing body; or
(b) framing a scheme for the better and efficient
management of the society; or
(c) dissolving the Society.
(2) Where the application under sub-section (1) is
by the members of the society, the applicant shall
deposit in Court along with the application the sum
of one hundred rupees in cash as security for costs.”
Section 25 makes it very clear that a suit can be filed before
the District Court by 10% of the members of the society
against the Society for removing the existing governing
body and appointing a fresh governing body or for framing
a scheme for the better and efficient management of the
[2025] 8 S.C.R. 481

Operation Asha v. Shelly Batra & Ors.

society. The right to file the suit to frame a scheme is not
confined to the State Government alone. The relief that
the District Court can grant is not restricted to ordering
dissolution of the society only. Section 25 confers power on
the members of the society to institute a suit for removing
the governing body or for appointing a fresh governing
body and for framing a scheme. The only condition is
that to file such suit minimum 10% of the members on the
rolls of the society shall join together and the suit is to be
filed before the District Court, Sub-section (2) of Section
25 provides that the plaintiff has to deposit Rs. 100/- as
security for costs.
9. A reading of the various Sections of Act XII of 1955
shows that even if the object of a society formed under
the provisions of Act XII of 1955 is a charitable purpose
and even if it acquires property and use the same for
achieving the object of the society, the property is owned
by the Society and it belongs to it. The property is that
of the society which is a legal person by virtue of the
provisions of the statute. It cannot be said that whenever a
society acquires property, it declares itself as a trustee in
respect of that property. The Society has a legal obligation
to use the property for purposes of the society acquired
strictly in accordance with the provisions contained in the
Rules and Regulations of Memorandum of Association.
By no stretch of imagination it can be considered as a
declaration of trust in respect of a property acquired by
the Society.
-xxx-
11. The preamble of the Indian Trusts Act, 182, states that
it was enacted to define and amend the law relating to
private trusts and trustees. Section 3 of the Indian Trusts
Act defines “trust”. It reads as follows:—
“A “Trust” is an obligation annexed to the ownership
of property, and arising out of a confidence reposed in
and accepted by the owner, or declared and accepted
by him, for the benefit of another, or of another and
the owner.”
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To constitute a trust, there must be an author of the trust,
trustees, beneficiary, trust property and beneficial interest.
The concept of trust involves four ingredients; a settlor
or donor, a trustee or trustees, the beneficiaries and the
subject matter. Of course, the beneficiaries may be a
specified group or general public. Trust may be either
express or constructive. But, a trust is created only when
the author of the trust indicates with reasonable certainty
by words or act the intention in his part to create a trust,
beneficiary and the trust property. The subject matter of
a trust must be a property transferable to the beneficiary.
It must not be merely a beneficial interest.
12. In Kesava Panicker v. Damodara Panicker 1975 Ker
LT 797: (AIR 1976 Kerala 86) a Full Bench of this Court
considered the effect of the subsequent registration of a
society. […] That principle was followed in Sukumaran v.
Akamala Sree Dharma Sastha Idol (1992) 1 Ker LT 432:
(AIR 1992 Kerala 406), but in both those cases there were
materials to show that a public trust was in existence and
later that trust got registered under the provisions of Act
XII of 1955. I shall consider whether there is any material
in this case to show that the 1st petitioner was a trust
and later it got itself registered under the provisions of
Act XII of 1955.
13. […] A reading of various averments in the Original
Petition shows that though the word “Trust” is used to
describe the 1st petitioner, there is no averments in the
pleadings to show the existence of a Trust, whether Public
or Private. On the other hand, the materials on record
clearly shows that the 1st petitioner is a Society registered
under Act XII of 1955.
14. A comparison of Section 25 of the Act XII of 1955 and
Section 92 of C.P. Code shows that the reliefs provided
under Section 25 of the Act and under Section 92 of
the C.P. Code are similar. The suit under Section 25 of
the Act is also to be filed before the District Court. The
main difference is that to file a suit under Section 25 of
the Act a minimum 10% of the members of the Society
[2025] 8 S.C.R. 483

Operation Asha v. Shelly Batra & Ors.

must join together as plaintiffs. But they need not obtain
any permission as contemplated under Section 92 of the
C.P. Code. The minimum number of 10% of the members
is insisted to see that the Society is not unnecessarily
dragged to court of law. The member of the Society cannot
be allowed to circumvent that provision by making an
allegation that the Society is a Trust.
15. The learned counsel appearing for the contesting
respondents has argued that when there are averments
in the petition regarding the existence of a trust, the
Court is bound to grant the permission sought for and the
Court cannot consider whether the allegation regarding
the existence of trust is true or not. It is argued that is a
matter to be decided after taking evidence.
16. It is true that it is the allegation in the plaint that
determines the jurisdiction of the Court under Section 92
of C.P. Code. If a breach of trust is alleged in the plaint,
it is sufficient to confer jurisdiction to the Court. But, when
the very existence of a trust of any kind is denied, the court
must look into the pleadings and the documents produced
by the plaintiffs to see whether there is any material to show
a prima facie case of existence of the trust. Of course, if
the contention is that there is no public trust but only a
private trust, a decision as to whether the trust is public
or private can be taken only after taking evidence.
17. The learned counsel for the respondents 1 to 6 has
argued that if there are averments in the original Petition to
the effect that the O.P. relates to a trust the District Court
shall not reject the O.P. on the ground that there is no trust.
It is argued that the Apex Court has held that it is not even
necessary to hear the respondent before granting leave.
It is true that in B.S. Adityan v. B. Ramachandran Adityan
2004 AIR SCW 3044: (AIR 2004 SC 3448), the Apex Court
has held that leave can be granted without issuing notice to
the respondent. But in the very same decision it was also
held that the respondent after appearing in the suit, can
file petition to revoke the leave already granted. So, there
is no merit in the contention of the contesting respondent
that if there are averments in the petition regarding the
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existence of trust, the District Court shall entertain the
application and grant leave.
18. The learned counsel appearing for respondents 1
to 6 has argued that the scope of enquiry in an Original
Petition is very limited and the District Court has merely
to see whether there is prima facie case for granting the
relief. […] It is true that the plaintiff need only establish a
prima facie case of existence of a trust. But, there must
be materials to make a prima facie case of existence of a
trust. There is total lack of any such materials in this case.
-xxx-
21. The learned District Judge allowed the Original Petition
on a wrong assumption that the 1st petitioner Society is
a Trust. There is absolutely no material to show prima
facie that 1st petitioner is a Trust, either public or private.
There is also no material to show that there was a Trust
of public nature, which subsequently got registered under
the provisions of Act XII of 1955. Since there is no material
to make out a prima facie case that the 1st petitioner is a
public Trust and any person had settled any properties for
the benefit of the beneficiaries, the provisions of Section
92 of C.P.C. cannot be invoked. So, the impugned order
is illegal, unsustainable and liable to be set aside.”
(Emphasis supplied)

66. While dealing with the same issue, the Madras High Court also in
Periyar Self Respect Propaganda Institution (supra), took the
view that the properties in question vested with a society and not a
trust, thereby rendering the suit under Section 92 not maintainable.
Therein, the fact that the institution was registered under the Societies
Registration Act, 1860 and that the properties were vested in the
President and Secretary of the institution who were empowered to
purchase and sell properties on behalf of the institution, were, in the
opinion of the High Court, factors which indicated that a trust neither
existed nor was created. The relevant observations are as thus:
“9. In order to maintain the suit under Section 92 CPC the
petitioners/plaintiffs should show the existence of a Trust
and the alleged breach of the terms of the Trust; besides
[2025] 8 S.C.R. 485

Operation Asha v. Shelly Batra & Ors.

which the interestedness of the petitioners/plaintiffs in the
running the Trust shall also be made known.
10. But as seen from the Memorandum of Articles of
Association of the Periyar Self Respect Propaganda
Institution (first defendant), Tiruchirapalli, it is found that it
was incorporated and found to have been registered under
the Societies Registration Act 21/1860. That Certificate
number is 13/1952 with a Memorandum of Articles of
Association containing 13 life members and 30 Rules;
according to Clause 22, the life members of the Executive
Committee alone shall be the Trustees of the properties
already purchased. According to Clause 23, the properties
of the Institution shall be in the names of the President and
the Secretary and they shall have to power to purchase
and sell the properties on behalf of the Institution. If it is a
Trust Property, there will not be a clause empowering the
President to sell the properties. That itself indicates that
it is not a Trust. The fact that it was registered under the
Societies Act may also lend support to the above view.
-xxx-
14. In this case also the property vest with the President
and Secretary of the first defendant as per clause 23 of
the Memorandum of Articles of Association of the first
defendant Institution, which was registered under the
Societies Registration Act 21/1860. Therefore, the property
is vested with a society and not with a Trust and as per
the observations made in the above cited case a suit
under Section 92, CPC is not maintainable, (to) which
Societies Registration Act is applicable, proceeding with
a suit under Section 92, CPC was deprecated in Babaji
Kondaji Garad v. Nasik Merchants Co-operative Bank
Ltd., Nasik ((1984) 2 SCC 50 : AIR 1984 SC 192). There
is also no interestedness shown upon the plaintiffs in the
running of the Trust.”
(Emphasis supplied)

67. In S.R. Bahuguna (supra), the Delhi High Court had held that the
suit under Section 92 was not maintainable for not having satisfied
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two crucial ingredients i.e., the defendant no. 1 was a society and
not a public charitable trust, and the plaintiffs were also not ‘persons
interested’ in the trust. Therein, for the purpose of constructing
a building on a plot of land belonging to defendant society and
develop it, a board of five trustees was set up by the standing
committee of the defendant society through a registered trust deed
dated 01.09.1975 where the President of the defendant society was
the Managing Trustee. However, the trust was revoked almost two
years later since the construction was complete and the purposes
for which it had been set up was fulfilled. In this context, the Delhi
High Court emphasized that Section 5 of the Societies Registration
Act, 1860 cannot be construed to mean that the governing body
members of the society would automatically become trustees if no
trust is created to manage the assets of the society. The relevant
observations are as follows:
“12. The sum and substance of the suit averments is
that the AIWC, a registered Society, constituted a trust
on 01.09.1975 for the purpose of constructing upon a
plot of land allotted to it in 1962. This was part of the
avowed objectives that govern the Society. The AIWC
had resolved that after construction, the building would be
utilized to provide housing for as many working women as
was feasible and also at the same time generate rental
income to sustain its other welfare activities. The plaintiffs
allege various acts of financial irregularities in relation to
construction activity undertaken by the AIWC as well as
alleged acts of embezzlement on part of the Treasurer.
They also rely upon certain observations by the AIWC’s
Chartered Accountants or Auditors. Their claim to be
persons interested for the purpose of obtaining leave is
that they were associated with the Society having worked
there for some time and are, therefore, ‘interested for its
proper management and functioning’.
-xxx-
14. […] Besides, there is no denial that the first defendant
is a society, not a Trust; a Trust was set up for a limited
period, for a special purpose, i.e. to construct a building.
Apparently, after that objective was achieved, the Trust
[2025] 8 S.C.R. 487

Operation Asha v. Shelly Batra & Ors.

was dissolved or wound up. In these circumstances, the
Court is of opinion that the suit is not maintainable.
-xxx-
16. In view of the above discussion, the Court is of
opinion that the suit is not maintainable, because two
crucial ingredients, which are essential pre-requisites for
action under Section 92 are lacking; the first, defendant
is a society, and not a public charitable Trust. The Trust
which had been set up earlier was dissolved in 1997;
that has not been disputed. The suit was filed in 2001.
Section 5 of the Societies Registration Act 1860, says
that the property and assets of a registered society vest
either in a trust, set up for that purpose, or the society’s
governing council or body. This however, does not mean
that the governing body members if no trust is created to
manage the society’s assets, become trustees. No authority
was shown to advance such an argument. The second
ingredient, i.e. the plaintiffs being ‘persons interested’ is
also lacking, in this case.
17. For the above reasons, the plaintiffs cannot be granted
leave to file a suit, under Section 92 of the CPC. The suit
and all pending applications are, therefore, dismissed
without any order on costs.”
(Emphasis supplied)

68. In Young Mens Christian Association of Ernakulam (supra), the
plaintiffs alleged before the Delhi High Court that the defendant society
owned a large number of movable and immovable properties across
India and held in trust, various properties of its member associations.
The High Court accepted such a contention and leave to institute
a suit under Section 92 was granted by delineating the following:
i. First, emphasis was laid on several Articles of the Memorandum
of Association of the defendant society of which one provided
that certain properties were indeed held in trust by the defendant
society on behalf of the member YMCAs. Furthermore, the
historical background indicated that the defendant society started
administering and looking after existing member YMCAs which
were formed even before it was registered as a society, quite
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similar to the factual scenario in Kesava Panicker (supra). The
defendant society was not only holding properties in trust but
also exercised the power to enter into transactions in respect
of such properties. On a consideration of all the above, it was
held that there remained no doubt that the defendant society
was in both ‘express’ and ‘constructive’ trust of the properties
belonging to its members.
ii. Secondly, by interpreting Section 3 of the Indian Trusts Act,
1882, the elements that were required to be fulfilled for an
express or constructive trust were said to be – (a) ownership
of a property, (b) a confidence reposed by the owner, and (c)
the said confidence being accepted for the benefit of another.
It was stated that if these elements are satisfied a trust could
be said to be created. It was, however acknowledged that the
term “express or constructive trust” in Section 92 of the CPC
does not relate to a trust constituted under the Indian Trust Act,
1882 but any body or entity which holds in trust any property
and is created for public purposes of a religious or charitable
nature. Hence, a society might also be able to satisfy the test
of an express or constructive trust, when the facts reveal the
creation of a trust.
69. The relevant observations are reproduced as follows:
“11. A perusal of the above clauses of the Defendant’s
Memorandum reveals that the Society is one which
possesses a public character. It is working for the people
who constitute its members as also for the larger interest
of the community. It is common knowledge that the
Defendant not only has a large number of affiliated member
associations in India but is also affiliated to the international
network of YMCAs. It has been clearly created for a ‘public
purpose’ and is both of a charitable and a religious nature.
12. The Defendant has two bodies which manage and
administer its duties and functions. The National Board is
the governing body of the Defendant and under Article III(1),
the management of the society vests with it. […]
13. As per Article X of the rules and regulations, all the
property of the society is deemed to vest in the National
[2025] 8 S.C.R. 489

Operation Asha v. Shelly Batra & Ors.

Board which consists of all the members of the National
Executive, Secretary members, immediate past National
President, and Chairmen of the National Standing
Committees, etc.
14. The second body is the National Executive which is
primarily an elected body […]
15. Article X is relevant for the present purpose and is set
out herein below:
“X (1). All property of the Society, whether movable or
immovable, shall be deemed to be vested in the National
Board who shall have power to sell, lease, mortgage or
otherwise deal with the same, and also to purchase, take
on lease, accept, grants of or otherwise acquire movable or
immovable property on behalf of the society, and to enter
into all contracts and convenants on its behalf.”
16. Article XV in respect of ‘Property matters’ is extremely
relevant and is set out below:
“1. All matters related to the use and management of
properties owned and directly managed by the National
Council shall be authorized by the National Board or its
Executive Committee. Documents of such properties to
which the seal of the society is affixed shall be signed on
behalf of the society by the National General Secretary
and by the President or Treasurer.
2. In respect of Property owned by the National Council
and used for National Council projects, the signing authority
will be the National General Secretary or his nominee as
approved by the National Executive Committee and by the
President of the National Council or the chairman of the
project concerned as approved by the National Executive
Committee.
3. In respect of the properties held in trust by the National
Council on behalf of the member YMCA, for all dealings
the Executive Committee may give a power of attorney
on written requisition with a resolution of the Board of
the member YMCA, to the President and Secretary of
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the member YMCA and such other representatives of the
National Executive Committee if deemed necessary by the
National Executive Committee.
In respect of properties mentioned in section (1) and [2]
above, all sales or disposals are to be approved by the
National Board.”
(Emphasis in original)

-xxx-
18. Considering the nature and constitution of the
Defendant, the question is whether it comes under the
purview of the Section 92 of the CPC, it being a Registered
Society under the Societies Registration Act.
19. Section 3 of the Indian Trusts Act reads as under:
“Section 3 - Interpretation clause - ‘trust’ - A “trust” is
an obligation annexed to the ownership of property, and
arising out of a confidence reposed in an accepted by the
owner, or declared and accepted by him, for the benefit
of another, or of another and the owner”
20. From a perusal of the above definition, it is clear that
the elements that are required to be fulfilled for an express
or constructive trust are:
i) Ownership of a property;
ii) A confidence reposed by the owner;
iii) The said confidence being accepted for the benefit of
another.
21. If these elements are satisfied, a trust is created.
22. In this backdrop, a perusal of Section 92 of the CPC
reveals that the term “express or constructive trust” does
not relate to a trust constituted under the Indian Trusts Act,
but any body or entity which holds in trust any property and
is created for public purposes of a charitable or religious
nature. A society can also satisfy the test of express or
constructive trust created for public purposes.
[2025] 8 S.C.R. 491

Operation Asha v. Shelly Batra & Ors.

23. In Abhaya (supra) cited by the Defendant, the case
involved a charitable Society which did not show that it held
‘in trust’ any property belonging to a different organisation.
The property vested in the governing body of the Society
itself. Thus, the Kerala High Court held that a suit under
Section 92 of the CPC would not be maintainable. […]
24. Thus, in the facts of the said case, the Court held
that there was no prima facie material to show existence
of a trust.
25. Even in Rukmini Devi Arundale (supra), the Court held
that the question was as to whether the property belonged
to the Trust or the Society. In Bhartiya Adam Jati Sewak
Sangh (supra), the High Court of Himachal Pradesh held
that there was no evidence to show that any funds were
collected from the general public before the Society was
created. […]
26. In the present case, as per Clause 3(ii) of the Preamble
of the Memorandum, one of the main objectives of the
Defendant was to promote the work of the Young Men’s
Christian Association Movement in India and to resuscitate
the existing languishing YMCAs and aid in formation of
new YMCAs in India. In effect, the Defendant started
administering and looking after the existing YMCAs
which were formed even before it came into existence
as a Society. Paragraph 14 of the Plaint clearly sets out
the past YMCA movement which dates back to 1857, the
fore-runner of the Defendant being formed in 1891 and
thereafter the registration of the Defendant as a Society
only in 1964. All these organisations came under the
administration and supervision of the Defendant. As per the
Rules and Regulations set out hereinabove, the Defendant
holds in trust, properties on behalf of the member YMCAs.
The immovable properties are located across the country.
Thus, there is no doubt that the Defendant is in both
‘express’ and ‘constructive’ trust of the properties belonging
to its members. In fact, as pointed out by counsels,
the agreements in respect of immovable properties are
actually signed for and on behalf of the members by the
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Defendant. One such example is that of the property in
Vishakhapatnam. The Defendant is thus playing the role
of not merely an association holding something in trust but
also has the power to enter into a transaction in respect
of such properties.”
(Emphasis supplied)

70. A conspectus of the aforesaid decisions of several High Courts
indicate that they are unanimous in their view as regards the fact
that a society registered under the Societies Registration Act, 1860
cannot be termed as a trust or a constructive trust merely by virtue of
the fact that its properties are vested in its governing body. The facts
must contain circumstances clearly indicating the creation of a trust.

c. Section 5 of the Societies Registration Act, 1860 and the ‘vesting’
of properties in the Executive Committee.
71. The appellant Society has submitted that no trust has been created
for the purpose of holding the society’s properties or its assets and
it has been ‘vested’ in its Executive Committee only as per the
mandate under Section 5 of the Societies Registration Act, 1860
which reads as thus:
“5. Property of society how vested.—The property,
movable and immovable, belonging to a society registered
under this Act, if not vested in trustees, shall be deemed
to be vested, for the time being, in the governing body
of such society, and in all proceedings, civil and criminal,
may be described as the property of the governing body
of such society by their proper title.”
72. A five-judge bench of this Court in Board of Trustees, Ayurvedic and
Unani Tibia College, Delhi v. State of Delhi and Another reported
in 1961 SCC OnLine SC 145 while deciding a challenge to a State
legislation, had the occasion to decide whether an entity registered
as a society can be considered to be a ‘corporation’. Answering in the
negative, it was stated that the most important aspect in resolving the
said issue would be to determine whether there was an intention to
incorporate. Upon perusal of the various provisions of the Societies
Registration Act, 1860, it was concluded that there were no sufficient
words to indicate an intention to incorporate; on the contrary, the
[2025] 8 S.C.R. 493

Operation Asha v. Shelly Batra & Ors.

provisions only revealed the absence of such an intention. Further,
it was stated that the expression “property belonging to the society”
under Section 5, did not give the society a corporate status in the
matter of holding or acquiring property and that it merely described
the property which either vests in the trustees or the governing body
for the time being. Though the provisions of the Act undoubtedly
confer certain privileges to a registered society and those privileges
are of considerable importance, some may even be analogous to
the privileges enjoyed by a corporation, it was held that there is no
incorporation in the sense in which the word is legally understood.
The relevant observations are thus:
“9. The first and foremost question is whether the old
Board was a corporation in the legal sense of that word.
What is a corporation?[…]
10. The learned Advocate for the petitioners has referred
us to various provisions of the Societies Registration Act,
1860 and has contended that the result of these provisions
was to make the Board a corporation on registration. It
is necessary now to read some of the provisions of that
Act.[…]
11. Now, the question before us is — regard being had to
the aforesaid provisions — was the Board a corporation?
Our conclusion is that it was not. The most important
point to be noticed in this connection is that in the various
provisions of the Societies Registration Act, 1860, there are
no sufficient words to indicate an intention to incorporate;
on the contrary, the provisions show that there was an
absence of such intention. Section 2 no doubt provides for
a name as also for the objects of the society. Section 5,
however, states that the property belonging to the society,
if not vested in trustees, shall be deemed to be vested in
the governing body of the society and in all proceedings,
civil and criminal, the property will be described as the
property of the governing body. The section talks of property
belonging to the society; but the property is vested in the
trustees or in the governing body for the time being. The
expression “property belonging to the society” does not
give the society a corporate status in the matter of holding
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or acquiring property; it merely describes the property
which vests in the trustees or governing body for the
time being. Section 6 gives the society the right to sue or
be sued in the name of the president, chairman etc. and
Section 7 provides that no suit or proceeding in a civil
court shall abate by reason of the death etc. of the person
by or against whom the suit has been brought. Section 8
again says that any judgment obtained in a suit brought
by or against the society shall be enforced against it. It
has been submitted before us that Sections 6, 7 and 8
clothe the society with a legal personality and a perpetual
succession; and Section 10 enables the members of the
society to be sued as strangers, in certain circumstances,
by the society, and the costs awarded to the defendant
in such a suit may be recovered, at his election, from
the officer in whose name the suit was brought. Dealing
with very similar provisions (Sections 7, 8 and 9) of the
English Trade Union Act, 1871 (34 and 35 Vict. c. 31) Lord
Lindley said in the celebrated case of Taff Vale Railway
v. Amalgamated Society of Railway Servants [1901 AC
426] […]
-xxx-
13. It is clear from the aforesaid decision that provisions
similar to the provisions of Sections 5, 6, 7 and 8 of the
Societies Registration Act, 1860 were held not to show
any intention to incorporate; on the contrary, the very
resort to the machinery of trustees or the governing body
for the time being acquiring and holding the property
showed that there was no intention to incorporate the
society or union so as to give it a corporate capacity for
the purpose of holding and acquiring property. It appears
to us that the legal position is exactly the same with regard
to the provisions in Sections 5, 6, 7 and 8 of the Societies
Registration Act, 1860. They do not show any intention
to incorporate, though they confer certain privileges on a
registered society, which would be wholly unnecessary
if the registered society were a corporation. Sections
13 and 14 do not carry the matter any further in favour
of the petitioners. Section 13 provides for dissolution of
[2025] 8 S.C.R. 495

Operation Asha v. Shelly Batra & Ors.

societies and adjustment of their affairs. It says in effect
that on dissolution of a society necessary steps shall be
taken for the disposal and settlement of the property of
the society, its claims and liabilities, according to the Rules
of the society; if there be no rules, then as the governing
body shall find it expedient provided that in the event of
any dispute arising among the said governing body or the
members of the said society, the adjustment of the affairs
shall be referred to the court. Here again the governing
body is given a legal power somewhat distinct from that of
the society itself; because under Section 16 the governing
body shall be the governors, council, directors, committee,
trustees or other body to whom by the Rules and regulations
of the society the management of its affairs is entrusted.
14. We have, therefore, come to the conclusion that the
provisions aforesaid do not establish the main essential
characteristic of a corporation aggregate, namely, that of an
intention to incorporate the society. […] Those provisions
undoubtedly give certain privileges to a society registered
under that Act and the privileges are of considerable
importance and some of those privileges are analogous
to the privileges enjoyed by a corporation, but there is
really no incorporation in the sense in which that word is
legally understood.”
(Emphasis supplied)

73. In Board of Trustees (supra), this Court while deciding on the
question whether the Board members enjoyed any rights over the
property of the society, clarified that, during the subsistence of the
society, the right of the members was to ensure that the property
was utilised for the charitable objects as set out in its memorandum
and as such, that did not include any beneficial enjoyment on the
part of the board members. The members also do not acquire any
beneficial interest vis-à-vis the property on the dissolution of the
society since Section 14 of the Societies Registration Act, 1860
expressly negatives the right of the members of the society to any
distribution of the assets of the dissolved body. Upon dissolution, the
property has to be given over to some other society to be utilised for
like purposes and the only right of the members was to determine
496 [2025] 8 S.C.R.

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which society the funds or property might be transferred to. The
aforesaid right of the members to determine which new society the
funds and property may be transferred to, was held to be not a
right to “acquire, hold and dispose of property” within the meaning
of the then Article 19(1)(f). The context in which the words “dispose
of” occurred in Article 19(1)(f) was said to denote that the kind of
property which a citizen has a right to hold and upon dissolution of
the society, the members cannot be said to acquire any right to “hold”
the property in their individual capacity. The relevant observations
made are reproduced hereinbelow:
“23. […] We have already held that the impugned legislation
was well within the legislative competence of the Delhi
State Legislature. Now the question is — is the impugned
legislation bad on the ground that it violates the right of
the petitioners under Article 19(1)(f)? The property for the
protection of which Article 19(1)(f) is invoked belonged
either to the Board or to the members composing the
Board at the date of the dissolution. In either event, on
the terms of Section 5 of the Societies Registration Act,
1860, the property was to be deemed to be vested in the
governing body of the Board. There could be no doubt
that if the Board was dissolved by competent legislative
action, and in view of our conclusions on the first point
raised it must be held that this had taken place, the Board
would cease to exist and having ceased to exist cannot
obviously lay any claim to the property. This however may
not be sufficient to negative the contention urged before
us by the petitioners. If the legal ownership of the property
by the Board or the vesting of it in the governing body
was merely a method or mechanism permitted by the
law whereby the members exercised their rights quoad
the property, the dissolution of the Board and with it of
the governing body thereof would merely result in the
emergence of the right of the members to that property.
It is, therefore, necessary to ascertain the precise rights
the members of the Board possessed to see whether
the changes effected by the impugned Act amount to an
infringement of their rights within the meaning of Article
19(1)(f). During the subsistence of the society, the right of
[2025] 8 S.C.R. 497

Operation Asha v. Shelly Batra & Ors.

the members was to ensure that the property was utilised
for the charitable objects set out in the memorandum
and these did not include any beneficial enjoyment. Nor
did the members of the society acquire any beneficial
interest on the dissolution of the society; for Section 14
of the Act, quoted earlier, expressly negatived the right
of the members to any distribution of the assets of the
dissolved body. In such an event the property had to be
given over to some other society i.e. for being managed
by some other charitable organisation and to be utilised
for like purposes, and the only right of the members was
to determine the society to whom the funds or property
might be transferred and this had to be done by not less
than three-fifths of the members present at the meeting
for the purpose and, in default of such determination, by
the civil court. The effect of the impugned legislation is to
vary or affect this privilege of the members and to vest the
property in a new body created by it enjoined to administer it
so as to serve the same purposes as the dissolved society.
The only question is whether the right to determine the
body which shall administer the funds or property of the
dissolved society which they had under the pre-existing
law is a right to “acquire, hold and dispose of property”
within the meaning of Article 19(1)(f), and if so whether the
legislation is not saved by Article 19(5). We are clearly of
the opinion that that right is not a right of property within
the meaning of Article 19(1)(f). In the context in which the
words “to dispose of” occur in Article 19(1)(f), they denote
that kind of property which a citizen has a right to hold —
the right to dispose of being part of or being incidental to
the right to hold. Where however the citizen has no right
to hold the property, for on the terms of Section 14 of the
Societies Registration Act the members have no right to
“hold” the property of the dissolved society, there is, in our
opinion, no infringement of any right to property within the
meaning of Article 19(1)(f). In this view, the question as to
whether the impugned enactment satisfies the requirements
of Article 19(5) does not fall to be determined.”
(Emphasis supplied)
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74. In Illachi Devi and Others v. Jain Society, Protection of Orphans
India and Others reported in (2003) 8 SCC 413, this Court held that a
society cannot be the grantee of a probate or a letter of administration
in accordance with the Indian Succession Act, 1925 by reiterating that
a society registered under the Societies Registration Act, 1860 is not
a body corporate or a juristic person and therefore, ineligible to be
a grantee for the aforesaid purposes. The fact that a society is not
capable of ownership of any property by itself was a characteristic
which assumed significance in arriving at the conclusion that it cannot
be construed to be a body corporate. It is due to this incapability
that the property is vested either in trustees or the governing body
of the society. Nevertheless, it was held that a probate or letter of
administration can be granted to a person who is authorised by the
society, either under the statute or through a resolution, so that a Will
or gift in favour of a society does not become totally unenforceable
in law. Such an authorised person would carry out the wishes of
the testator for the benefit of the society. The relevant observations
made are reproduced hereinbelow:
“20. […] The mere fact of registration of a society under
the Societies Registration Act will not make the said
society distinct from association of persons. Sections 223
and 236 of the Act in very categorical terms provide that
an association of persons, be it a society, a partnership
or other forms of associations, a Letter of Administration
can be granted only to a company fulfilling the conditions
laid down under the Rules. […] A society registered under
the Societies Registration Act is not a “company” within
the meaning of “company”, as provided in the Act and the
Rules. In terms of Sections 223 and 236, a “company”
must be a “company” registered under the Companies Act.
We are, therefore, of the considered opinion that neither
the provisions of the Act nor the Rules framed thereunder
contemplate that the societies registered under the
Societies Registration Act would qualify to be considered
as a company for the purpose of Sections 223 and 236.
21. A society registered under the Societies Registration
Act is not a body corporate as is the case in respect
of a company registered under the Companies Act. In
that view of the matter, a society registered under the
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Societies Registration Act is not a juristic person. The
law for the purpose of grant of a probate or Letter of
Administration recognises only a juristic person and not
a mere conglomeration of persons or a body which does
not have any statutory recognition as a juristic person.
22. It is well known that there exist certain salient
differences between a society registered under the
Societies Registration Act, on the one hand, and a company
corporate, on the other, principal amongst which is that
a company is a juristic person by virtue of being a body
corporate, whereas the society, even when it is registered,
is not possessed of these characteristics. Moreover, a
society whether registered or unregistered, may not be
prosecuted in a criminal court, nor is it capable of ownership
of any property or of suing or being sued in its own name.
23. Although admittedly, a registered society is endowed
with an existence separate from that of its members for
certain purposes, that is not to say that it is a legal person for
the purposes of Sections 223 and 236 of the Act. Whereas
a company can be regarded as having a complete legal
personality, the same is not possible for a society, whose
existence is closely connected, and even contingent,
upon the persons who originally formed it. Inasmuch as
a company enjoys an identity distinct from its original
shareholders, whereas the society is undistinguishable, in
some aspects, from its own members, that would qualify
as a material distinction, which prevents societies from
obtaining Letters of Administration.
26. Vesting of property, therefore, does not take place in
the society. Similarly, the society cannot sue or be sued.
It must sue or be sued through a person nominated in
that behalf.
-xxx-
48. The apprehension of the High Court that in a case of
this nature, in the event, a Letter of Administration is not
granted in favour of the beneficiary society, the purport of
the “Will” will be frustrated, is not wholly correct and for
grant of Letter of Administration what is necessary is that
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the person duly authorised by the society in accordance
with the law may file such an application.
52. We, however, intend to lay emphasis on the fact that a
Will or gift in favour of a society is not totally unenforceable
in law. A probate or Letter of Administration with a copy of
the Will annexed although may not be granted in favour
of a society but may be granted in favour of a person
authorised by a society either in terms of the statute or
a resolution adopted in this behalf by the society, as the
case may be, so that such person may be answerable to
the court. On grant of a Letter of Administration the person
so nominated by the society shall carry out the wishes of
the testator for the benefit of the society.
55. For reasons stated above, the appeal is allowed in
part. The judgment under challenge stands modified. The
matter is sent back to the High Court with liberty to the
respondent to amend the petition for grant of the Letter of
Administration. It would be open to the respondent Society
to nominate any of its office-bearers to whom the Letter
of Administration is granted. Such nominated person may
move an application for substitution of his name for grant of
the Letter of Administration. If such amendment application
is made, the High Court shall permit this amendment and
grant the Letter of Administration in favour of the person
nominated by the Society for carrying out the wishes of
the testator which is for the benefit of the Society.”
(Emphasis supplied)

75. In Tata Memorial Hospital Workers Union v. Tata Memorial Centre
and Another reported in (2010) 8 SCC 480, this court considered in
detail the effect of Section 5 of the Societies Registration Act, 1860.
Therein, the Rules and Regulations of the respondent society had
provided for the vesting of certain properties in the governing body
of the society distinct from what was or may be vested separately
in the trustees. While explaining the raison d’être behind Section 5,
it was opined that:
i. First, the deeming provision, by default, creates a fictional
vesting in favour of the governing body of the society and not
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automatically in the society itself or under a trust. The vesting
is not with the society for the obvious reason that a society
is not a body corporate capable of holding the property by
itself. On the other hand, for a trust to hold the properties of
the society, the creation of a separate trust and the dedication
of the property belonging to society, to itself, must be made
out. By keeping the smooth functioning of the society and its
autonomy at the forefront, this Court opined that the law has
created this automatic vesting of the property belonging to the
society in its governing body since – (a) the society cannot hold
property in its name, and (b) the vesting of properties solely
in trusts would likely hinder the administration of the property,
more particularly, when the trustees themselves or their legal
representatives claim adversely to the trust,.
ii. Secondly, that the phrase, “property belonging to a person”
has two general meanings – One, ownership, and two, the
absolute right of user. The words “property belonging to the
society” would therefore, in the context of Section 5, indicate
that the society has an absolute right of user over its immovable
properties which is vested in its governing body.
76. The relevant observations are reproduced hereinbelow:
“68. Rule 26 of the Rules and Regulations of the first
respondent Society provides that all properties and funds of
the Centre (except the immovable properties as specified)
vest in the Council:
“26. Properties and funds vested in the Council.—Except
the existing immovable properties of the Centre and such
immovable properties as may be vested in the holding
trustees, all the other properties of the Centre shall vest
in the Council and more particularly the following:
(a) recurring and non-recurring grants made by the
Government;
(b) other grants, donations and gifts (periodical or
otherwise), other than those intended to form the corpus
of the property and funds of the Centre or held for the
benefit of the Centre by the holding trustees;
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(c) the income derived from the immovable properties and
the income of the funds vested in the holding trustees and
income of the funds vested in the Council and also fees,
subscription and other annual receipts; and
(d) all plant and machinery, equipment and instruments
(whether medical, surgical, laboratory, workshop or of any
other kind), books and journals, furniture, furnishings and
fixtures belonging to the Centre.”
69. However, even when it comes to the immovable
properties, Section 5 of the Societies Registration Act
provides for deemed vesting of the properties belonging to
a society into the governing body of such society. Section
5 of the Societies Registration Act reads as follows:
“5. Property of society how vested.—The property, movable
or immovable, belonging to a society registered under
this Act, if not vested in trustees, shall be deemed to be
vested, for the time being, in the governing body of such
society, and in all proceedings, civil and criminal, may be
described as the property of the governing body of such
society by their proper title.”
70. In this behalf, we must keep in mind, the raison d’être
of the above referred to Section 5 that once a trust is
established and a society is registered for the administration
of the trust, the statute contemplates that the society should
be fully autonomous and that the lack of actual transfer
of property of the trust should not prevent the governing
body in its administration. Law recognises that it would be
proper to regard that as done which ought to have been
done. The deeming provision creates a fictional vesting in
favour of the Governing Council and not in favour of the
society or the trust. This is also for the reason that society
is not a body corporate which has also been held by this
Court in Ayurvedic and Unani Tibia College v. State of
Delhi [AIR 1962 SC 458] and reiterated in Illachi Devi v.
Jain Society, Protection of Orphans India [(2003) 8 SCC
413 : AIR 2003 SC 3397] . Since the society cannot hold
the property in its name, vesting of the property in the
trustees is likely to hinder the administration of the trust
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property, particularly where the trustees themselves or
their legal representatives claim adversely to the trust. It
is for this reason that the law vests the property belonging
to the society in its governing body.
71. The phrase “property belonging to a person” has two
general meanings (1) ownership, (2) the absolute right of
user (per Martin, B. in Attorney General v. Oxford & C.
Railway Co. [(1862) 31 LJ 218] , LJ at p. 227). “Belonging”
connotes either ownership or absolute right of user (Wills,
J. in Governors of St. Thomas’s, St. Bartholomew’s and
Bridewell Hospitals v. Hudgell [(1901) 1 KB 364] ). The
Centre has an absolute right of user over its immovable
properties which it has been exclusively exercising all
throughout. Section 5 of the Societies Registration Act
clearly declares that the property belonging to the society,
meaning under its user, if not vested in the trustees shall
be deemed to be vested in the Governing Council of the
society.
72. In the present case, it is nobody’s case that the property
remains vested in the trustees of Dorabji Tata Trust. It has
been canvassed on behalf of the first respondent that the
property is vested in the Central Government. However,
the Central Government has never claimed any title to the
property adverse to the first respondent Tata Memorial
Centre. It is true that the property dedicated to Tata
Memorial Centre has not been transferred to the Society
by the Central Government. But the fact is that it is the
Governing Council of the first respondent which has been
administering and controlling the day-to-day affairs of Tata
Memorial Centre and its property funds, employment of its
staff and their conditions of service. Hence, in view of the
above referred to factual as well as legal scenario the first
issue will have to be decided that the property dedicated
to the first respondent will be deemed to be vested in the
Governing Council of the first respondent Society.”
(Emphasis supplied)

77. What follows from a conspectus of the aforesaid decisions discussing
Section 5 of the Societies Registration Act, 1860 and the vesting
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of property in the governing body of the society is that, a society
registered under the aforesaid Act is not a juristic person or a body
corporate capable of holding property by itself. It is for this reason
that a fictional vesting of the ‘property belonging to the society’ has
been made in favour of the governing body of the society.
78. However, it is to be noted that the property can also be held in trust
by certain trustees and this is evident from the use of the phrase “if
not vested in trustees”. Several decisions have interpreted this to
mean that there must be certain circumstances which give rise to the
existence of a trust prior to the registration of the entity/institution as
a society. However, it is our view that the aforesaid phrase cannot
be restricted to such a narrow interpretation i.e., that the formation of
the trust, either expressly or impliedly, must pre-exist the registration
of the society. We say this simply because, if it were so, instead of
using the phrase “if not vested in trustees”, the language employed
in the provision would have read “if not already vested in trustees”.
Therefore, the property belonging to the society can be vested in
trustees even after its registration as a society. There is nothing
under Section 5 which bars the same.
79. However, if it is argued that a trust has instead separately been
created for holding the property of the society after its registration
as a society, the same must be clear and sufficiently proven. The
considerations that would have to be weighed in order to ascertain
if a public trust has been created prior to the registration of the
society are already very lucidly elaborated in the decisions of this
Court in Babu Bhagwan Din (supra), Gurunatharudhaswami
(supra), Bihar State Board (supra) and Kuldip Chand (supra).
Therein there remained no formal recognition of any sort of the
entity/institution and the court was tasked to see if - (a) properties
were vested in a public trust and, (b) if the trustee(s) was fettered
with any obligation that required the properties to be applied for a
certain purpose and, (c) if there was any condition or conduct which
revealed a restriction of the exercise of individual rights over the said
property or its proceeds. The aforesaid considerations, along with
some others may also be pertinent to determine if the society, after
its registration, has created a trust or entrusted other trustees with the
property belonging to itself. It is not possible to exhaustively lay down
all those circumstances in which such a separate trust can be said
to be created. Having said so, one of the possible methods in which
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the society can create or intend to create a separate trust for holding
its properties is when its Rules and Regulations or the Articles of its
Memorandum of Association provide for a separate trust or trustee(s)
for the purpose of holding its properties. Alternatively, as in Young
Mens Christian Association of Ernakulam (supra), the trustee (if
they happen to also be a society) can mention in their Articles of
Memorandum of Association that they hold the property belonging to
another society as trustees. Further, the existence of an unequivocal
trust deed executed by the society or its member representative, in
favour of another trustee, for the purpose of holding its properties,
could also seal the deal as far as the separate creation of a trust
is concerned. All these could be a pertinent factors in determining
the existence of a trust, separate from the governing body of the
society, in which the property belonging to the society is vested.
In this scenario, such a trust could be subjected to the jurisdiction
under Section 92 of the CPC provided the other conditions for its
invocation are met.
80. In the absence of the creation of a trust as aforesaid, property
would be deemed to be vested in the governing body only. The
governing body of the society upon which property is otherwise
vested is duty bound to ensure that the property is put towards
and utilised for the purposes/aims of the society as laid out in its
Memorandum of Association or any Rules and Regulations governing
the said matter. In case the society is dissolved, a decision must
be made to transfer or vest all the property in another society
working towards a like cause and the members would not have
any right to distribute the assets belonging to the society between
themselves. Therefore, both during the subsistence and dissolution
of the society, the members or the governing body cannot be said
to possess any beneficial or individual interest over the property
vested in them.
81. Hence, it follows that whenever a property is transferred to a society
which is working towards a public purpose of a religious or charitable
nature, the property would be said to belong to the society and
be automatically vested in its governing body. Once a society is
registered, all gifts, donations, grants-in-aid, etc. would vest in its
governing body as per the mandate of Section 5 of the Societies
Registration Act, 1860, in the absence of the creation of a separate
trust/entrustment to other trustee(s), for the said purpose.
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82. Moving ahead, the mere fact that a distinct trust can also be created
i.e., either prior to or post the registration of a society under the
Societies Registration Act, 1860 would not alter the capacity in which
the governing body holds the properties belonging to the society. The
governing body would also hold such properties in a well-confined
fiduciary capacity. In other words, the phrasing of Section 5, more
specifically that “if not vested in trustees, shall be deemed to be
vested, for the time being, in the governing body of such society”,
does not indicate that if a trust has not be created for the purpose
of holding the society’s properties, any fiduciary obligation that the
governing body might owe to the society vis-à-vis the management
and administration of the properties would dissipate into thin air. The
aforesaid language employed in Section 5 must not be seen as giving
rise to two polar opposite mechanisms through which the property
of the society can be held i.e., either in a trust with air-tight fiduciary
obligations or not in a fiduciary capacity at all. In other words, it must
not be read to mean that if the property is not vested in trustees,
then it would remain vested in the governing body who would have
zero fiduciary obligations. The governing body is also bound by
duties of that of a fiduciary and this remains further fortified by the
fact that the governing body does not enjoy any beneficial interest
over the properties that it holds and must ensure that it is used for
the object for which the society has been created.
83. In our opinion, the reason behind the use of the word “trustees” in
the phrase “if not vested in trustees”, is a reflection of the intention
of the legislature that the vesting of the property belonging to the
society cannot be made in a casual manner to any and all persons
regardless of any obligation. For argument, let’s say that the phrase
instead read as “if not vested in any person”. In such a scenario, the
persons in whom the property of the society vested would be able to
possibly assert their own individual title or a competing claim to the
property. This would give rise to a conflicting situation and deviate from
the original purpose for which the property belonging to the society
came to be vested in a third person. This is precisely the reason due
to which the word “trustees” has been used under Section 5 of the
Societies Registration Act, 1860. While interpreting the words employed
in Section 5, we must not detract from the underlying purpose and
objective for which it came to be enacted. Legislative creativity was
employed to ensure that the incapability of the society to hold the
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property by itself does not have any practical effect on its ability to
use and administer those properties. The idea was to ensure that
the property of the society may not be squandered or the object and
purpose for which the society was formed may not be defeated by
persons having control of the properties. The property was vested in
such persons such that, in all circumstances, they would remain bound
and accountable to the society. The governing body of the society would,
no doubt, remain tethered to the aims and objectives for which the
society was formed and would be able to deal with the properties only
as per the Rules and Regulations of the Memorandum of Association.
The other persons who are capable and allowed to hold the property
of the society were also intended to be bound in a similar fashion and
hence, the provisions incorporated the word “trustees” to instil in such
person(s), a fiduciary obligation which they could not deviate from or
ignore. However, this by itself, by no stretch of imagination, can be
interpreted to mean that since the provision allows for the property
to be held by trustees separately, the governing body of the society
would not be constrained with any fetter as regards their dealing with
the property belonging to the society. It may happen, more often than
not, that a society does not create a trust for the purpose of holding
its properties and that is precisely why, there is an automatic vesting
in the governing body. What must instead reinforced is that, despite
this automatic vesting in the governing body, the fiduciary capacity in
which the governing body would hold the properties, not be altered.
In simpler words, Section 5 seemingly provides two options, or
mechanisms through which a society can hold the property belonging
to itself – One, in trustee(s) or, two, in the governing body of the
society. Both these mechanisms/options belong to the same genus
(fiduciaries), albeit they don’t fall in the same species (the former is
a trustee stricto sensu and the latter is not).
84. The governing body of the society would not only hold the properties
and administer it as per their bye laws to fulfil its fundamental aims
but also safeguard it for the future members of the society or the
future governing body who would also have to tread the same path
and continue the aims and objects of the society as envisaged by
the founding members or as reflected in its governing documents.
Therefore, perpetuity is assigned not only to the identity of the society
but also to the properties which belong to it, provided the society is
not dissolved. This adds to the reason that the governing body also
acts within the contours of a strict fiduciary relationship.
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85. Therefore, while it cannot be considered as an ‘express trust’, what
must also be noted, at this crucial juncture, is that, for an entity to be
brought within the rigours of Section 92, the plaintiff has the option of
also contending that a ‘constructive trust’ exists in the circumstances
and a breach of such a constructive trust has occurred or that the
directions of the Court are necessary for the administration of such
a constructive trust.

d. The doctrine of constructive trust and its applicability to
a society functioning for public purposes of a religious or
charitable nature
86. In light of the discussion in the preceding paragraphs, we are tasked
with determining whether a constructive trust could be created in a
circumstance wherein a society vests its property in its governing
body through the deeming fiction employed under Section 5 of the
Societies Registration Act, 1860.
87. On the one hand, an express trust is a legal relationship which is
created by an individual(s) out of his own volition, while manifesting
an intention to create a trust. This manifestation of intention can be
express, either by words or through conduct. However, it is not always
necessary that such intention be overt, unambiguous and unequivocal.
Sometimes, the existence of an express trust might have to be inferred
from the attending circumstances. In other words, a trust would be an
express trust whether expressed in certain unambiguous language
or whether inferred from uncertain ambiguous words and conduct
of the settlor, for example, where precatory words are used by the
settlor indicating a prayer or expectation that something be done
in a specific manner such that it be imperative and binding in the
circumstances. In English private trust jurisprudence, as expounded
in the landmark decision in Knight v. Knight reported in (1840) 3
Beav 148, ‘three certainties’ were required – (a) certainty of intention
or an imperative that a trust be created; (b) certainty of the subject-
matter or the property subject to the trust and; (c) the certainty of
objects or the beneficiaries and the interest to be enjoyed by them.
In that context, it was observed as thus:
“[…] To create by precatory words such a trust as the Court
will carry into execution, there are three requisites; first,
the precatory words must be sufficiently clear; secondly,
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there must be a certainty as to subject of the gift; and,
thirdly, the objects to take must be certain. […]
[…] As to the first requisite, no particular form of words
is necessary; it is sufficient for a testator “ to express a
desire as to the disposition of the property, and the desire
so expressed amounts to a command […]
-xxx-
Secondly, the subject of the gift is sufficiently certain,
being the estates and personal property devised and
bequeathed by the will.
Thirdly, the persons to take are sufficiently defined being
persons in the male line in succession; a description much
more perfect than the expressions “family,” “relations,”
which have been held sufficiently certain to be carried
into execution; […]
-xxx-
On the whole, I am under the necessity of saying, that for
the creation of a trust, which ought to be characterised by
certainty, there is not sufficient clearness to make it certain
that the words of trust were intended to be imperative, or
to make it certain what was precisely the subject intended
to be affected, or to make it certain what were the interests
to be enjoyed by the objects.”
(Emphasis supplied)

88. The aforesaid principle has been codified in Indian jurisprudence
under the Indian Trust Act, 1882 governing private trust which defines
a private trust as a an obligation annexed to the ownership of property
and arising out of a confidence reposed in and accepted by the
owner, or declared and accepted by him, for the benefit of another,
or of another and the owner. While we are not directly importing
the aforesaid principles laid out under the Indian Trusts Act, 1882,
which governs private trusts, for application to a ‘public trust’, these
principles aid in construing how an express trust, whether public or
private, may be created. P Ramantha Aiyar in his Advanced Law
Lexicon also adds that it is not necessary that the word ‘trust’ be
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used. The trust would be express even if it has to be made out from
the terms of an instrument. Therefore, a declared and ascertainable
intention to create a trust is the cornerstone of an express trust which
further determines where the trustee’s fiduciary obligation can be
sourced from.
89. Importing these principles to a society and its governing body which
holds property on its behalf, it cannot be ascertained with reasonable
certainty whether a fairly clear intention to create a trust on part of
the settlor could be said to exist when the deeming fiction under
Section 5 of the Societies Registration Act, 1860 is set into motion.
It goes without saying that if the society creates a trust separately,
as reflected in the words “if not vested in trustees”, an express
trust would be created. However, in the absence of the same, the
intention of the settlor to create a trust is difficult to ascertain, more
so because the legislative framework under which this vesting is
done is distinct. This is notwithstanding the fact that the governing
body would still be acting in a fiduciary capacity.
90. On the other hand, a constructive trust, arises by operation of law,
without regard to or irrespective of the intention of the parties to create
a trust. It is imposed predominantly because the person(s) holding
the title to the property would profit by a wrong or would be unjustly
enriched if they were permitted to keep the property. In other words,
a constructive trust, does not, like an express trust, arise because
of a manifestation of an intention to create it, but it is imposed as
a remedy to prevent unjust enrichment. A fiduciary element may
be present in the declaration of a constructive trust when, say, for
example, whenever a person clothed with a fiduciary character, gains
some personal advantage by availing himself of his situation as a
trustee. In such cases, such person would also become a trustee
of the advantage so gained. In other words, if a trustee, by reason
of his position, acquires any advantage of a valuable kind, he would
be a constructive trustee of that advantage. Furthermore, although
some form of wrongdoing is generally required for the imposition of
a constructive trust, it is not always a necessary element. It may also
be imposed in case of a mistake where no wrongdoing is involved,
say, for instance, when a fiduciary makes some profit even though
he has not acted fraudulently.
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91. However, it cannot be strictly said that only cases which contain
a fiduciary element would serve as a bedrock for the declaration
of a constructive trust. The circumstances which give rise to it
may or may not involve a fiduciary relation - at least, this is the
proposition laid down under American jurisprudence. Quoting the
observations of Cardozo, J. in Beatty v. Guggenhein Exploration
Co. reported in (1919) 225 N. Y. 380 - “a constructive trust is a
formula through which the conscience of equity finds expression.
When property has been acquired in such circumstances that the
holder of legal title may not in good conscience retain the beneficial
interest, equity converts him into a trustee”. In his subsequent
decision rendered in Meinhard v. Salmon reported in (1928) 249
N.Y. 458, he also observed that – “A constructive trust is then
the remedial device through which the preference of the self is
made subordinate to loyalty to others”. It is, therefore, designed
to prevent fraud or other inequity. In applying this doctrine, courts
be said to also resort to the maxim – “equity regards as done that
which ought to be done”. According to American jurisprudence, an
express trust is a substantive institution whereas a constructive
trust is purely a remedial institution. That the term “constructive
trust” was an expansive remedial concept and quite different from
a fiduciary relation present in express trusts, was set in stone by
the Restatement of the Law, Restitution promulgated by the
American Law Institute in the year 1936. Comment (a) to Section
160 defining a constructive trust reads as follows:
“The term “constructive trust” is not altogether a felicitous
one. It might be thought to suggest the idea that it is a
fiduciary relation similar to an express trust, whereas it is
in fact something quite different from an express trust. An
express trust and a constructive trust are not divisions of
the same fundamental concept. They are not species of
the same genus. They are distinct concepts. A constructive
trust does not, like an express trust, arise because of a
manifestation of an intention to create it, but it is imposed
as a remedy to prevent unjust enrichment. A constructive
trust, unlike an express trust, is not a fiduciary relation,
although the circumstances which give rise to a constructive
trust may or may not involve a fiduciary relation.”
(Emphasis supplied)
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92. It is largely believed that English Courts are generally reluctant
to accept the doctrine of unjust enrichment as a broad ground for
imposing a constructive trust, whereas the United States is more
open to recognising it as a sufficient basis. In other words, American
courts more often use constructive trust as a remedial device where
specific restitution is appropriate on detailed consideration of the
facts, whereas English Courts adopt a more institutional approach
where some form of a fiduciary or quasi-fiduciary relationship is a
pre-requisite instead of just prioritizing the overall equities. Therefore,
in implying the existence of a constructive trust, the English Courts
recognise or give legal efficacy to a relationship or ‘institution’ that
already exists. Some critics argue that the traditional American
approach was, however, akin to that of England but that the doctrine
was slowly expanded beyond the parallels of a fiduciary relationship
over the period of time.
93. An example of the modern American approach is evident from
the decision in Newton v. Porter reported in 69 N.Y. 133 (1877)
wherein a constructive trust was imposed on the products of larceny.
According to experts, this decision marked the cusp in the change
of approach by the American Courts (from the English model to a
remedial one) because in Campbell v. Drake reported in 39 N.C. 94
(1845), on similar facts, the Supreme Court of North Carolina had
held that where a clerk in a store pilfered money and goods from
his employer and uses those proceeds in the purchase of a tract of
land, the employer who was robbed could neither hold the clerk nor
his representatives after his death, as trustees of the land for the
benefit of the employer, so as to enable him to call for a conveyance
of the legal title to himself. To further elaborate, Campbell (supra)
held as follows:
“Nevertheless, we believe the bill cannot be sustained.
The object of it is to have the land itself, claiming it as
if it had been purchased for the plaintiff by an agent
expressly constituted; and it seems to us, thus stated,
to be a bill of the first impression. We will not say, if the
plaintiff had obtained judgment against the administrator
for the money as a debt, that he might not come here to
have the land declared liable, as a security, for the money
laid out for it. But that is not the object of this suit. It is to
get the land, which the plaintiff claims as his; and, upon
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the same principle, would claim it, if it were worth twenty
times his money, which was laid out for it. Now, we know
not any precedent of such a bill. It is not at all like the
cases of dealings with trust funds by trustees, executors,
guardians, factors, and the like; in which the owner of the
fund may elect to take either the money or that in which
it was invested. For, in all those cases, the legal title, if
we may use the expression, of the fund, is in the party
thus misapplying it. He has been entrusted with the whole
possession of it, and that for the purpose of laying it out
for the benefit of the equitable owner; and therefore all
the benefit and profit the trustee ought, in the nature of
his office, and from his relation to the cestui que trust, to
account for to that person. But the case of a servant or a
shop-keeper is very different. He is not charged with the
duty of investing his employer’s stock, but merely to buy
and sell at the counter. The possession of the goods or
money is not in him, but in his master; so entirely so, that
he may be convicted of stealing them, in which both a cepit
and asportavit are constituents. This person was in truth
guilty of a felony in possessing himself of the plaintiff’s
effects, for the purpose of laying them out for his own
lucre; and that fully rebuts the idea of converting him into
a trustee. If that could be done, there would be, at once,
an end to punishing thefts by shop men. If, indeed, the
plaintiff could actually trace the identical money taken from
him, into the hands of a person who got it without paying
value, no doubt he could recover it; for his title was not
destroyed by the theft. But we do not see how a felon is
to be turned into a trustee of property, merely by showing
that he bought it with stolen money. […]”
(Emphasis supplied)

94. However, in Newton (supra), the Court of Appeals of New York took
the view that the absence of a conventional relation of a trustee and
cestui que trust between the plaintiff and the persons who committed
larceny, would not stand in the way of enforcing an equitable remedy
in the form of a constructive trust. It was opined that this would place
the owner, who had been a victim of larceny and was deprived of
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his property, in a less favourable position in a court of equity than
persons who lost their property through an abuse of trust or by
the wrongful acts of a trustee to whom the possession of that trust
property was confided. This must not be countenanced, according
to the Court. The relevant observations are thus:
“It is insisted by the counsel for the defendants that the
doctrine which subjects property acquired by the fraudulent
misuse of trust moneys by a trustee to the influence of the
trust, and converts it into trust property and the wrong-doer
into a trustee at the election of the beneficiary, has no
application to a case where money or property acquired by
felony has been converted into other property. There is, it is
said, in such cases, no trust relation between the owner of
the stolen property and the thief, and the law will not imply
one for the purpose of subjecting the avails of the stolen
property to the claim of the owner. It would seem to be an
anomaly in the law, if the owner who has been deprived of
his property by a larceny should be less favorably situated
in a court of equity, in respect to his remedy to recover it,
or the property into which it had been converted, than one
who, by an abuse of trust, has been injured by the wrongful
act of a trustee to whom the possession of trust property
has been confided. The law in such a case will raise a
trust invitum out of the transaction, for the very purpose
of subjecting the substituted property to the purposes of
indemnity and recompense. “One of the most common
cases,” remarks Judge Story, “in which a court of equity acts
upon the ground of implied trusts in invitum, is when a party
receives money which he cannot conscientiously withhold
from another party.” (Sto. Eq. Juris., § 1255.) And he states
it to be a general principle that “whenever the property of a
party has been wrongfully misapplied, or a trust fund has
been wrongfully converted into another species of property,
if its identity can be traced, it will be held in its new form
liable to the rights of the original owner, or the cestui que
trust.” (§ 1258. See also, Hill on Trustees, p. 222.)
We are of opinion that the absence of the conventional
relation of trustee and cestui que trust between the plaintiff
and the Warners, is no obstacle to giving the plaintiff the
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benefit of the notes and mortgage, or the proceeds in part
of the stolen bonds. (See Bank of America v. Pollock, 4
Ed. Ch., 215.)”
(Emphasis supplied)

95. In a similar fashion, in Pope v. Garrett reported in 147 Tex. 18
(1948), the Supreme Court of Texas had opined that a constructive
trust could arise in a situation wherein the testator was prevented,
by physical force or by creating a disturbance, shortly before her
death, by two of her heirs, from executing a will solely in favour of the
plaintiff who was the intended beneficiary. Therein, the legal title to
the heirs has passed on account of intestate succession and it was
held that the heirs who were guilty of the wrongful acts would become
constructive trustees for the intended beneficiary. Additionally, since
some of the other innocent heirs would not have inherited interest
in the property but for the wrongful acts committed by some of the
heirs, it was opined that the imposition of a constructive trust on
the property that passed to all the heirs was a necessary remedy
in the interests of justice. In other words, the policy against unjust
enrichment was also considered sufficient to justify the imposition of
a constructive trust upon the other innocent heirs as well. In deciding
so, it was observed as follows:
“[…] In Binford v. Snyder, 144 Texas 134, 138, 189 S.W.
(2d) 471, the court quoted with approval the general rule
as to the use of the constructive trust thus stated in Ruling
Case Law:
“It is a well settled general rule that if one person obtains
the legal title to property, not only by fraud, or by violation
of confidence of fiduciary relations, but in any other
unconscientious manner, so that he cannot equitably retain
the property which really belongs to another, equity carrier
out its theory of a double ownership, equitable and legal,
by impressing a constructive trust upon the property in
favor of the one who is in good conscience entitled to it,
and who is considered in equity as the beneficial owner.”
See also 54 Am. Jur., pp. 167-169, Sec. 218.
It has been said that “The specific instances in which
equity impresses a constructive trust are numberless,
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-- as numberless as the modes by which property may
be obtained through bad faith and unconsientious acts.”
Pomeroy’s Equity Jurisprudence, (5th Ed.) Vol. 4, p. 97,
Sec. 1045. A few cases will be cited where trusts have
been raised on account of facts like, or somewhat like,
those in the instant case.
-xxx-
The argument is often made that the imposition of the
constructive trust in a case like this contravenes or
circumvents the statute of descent and distribution, the
statute of wills, the statute of frauds, or particularly a statute
which prohibits the creation of a trust unless it is declared
by an instrument in writing. It is generally held, however,
that the constructive trust is not within such statutes or is
an exception to them. It is the creature of equity. It does
not arise out of the parol agreement of the parties. It is
imposed irrespective of and even contrary to the intention
of the parties. Resort is had to it in order that a statute
enacted for the purpose of preventing fraud may not be
used as an instrument for perpetrating or protecting a
fraud. […]
In this case Claytonia Garrett does not acquire title through
the will. The trust does not owe its validity to the will. The
statute of descent and distribution is untouched. The legal
title passed to the heirs of Carrie Simons when she died
intestate, but equity deals with the holder of the legal title
for the wrong done in preventing the execution of the will
and impresses a trust on the property in favor of the one
who is in good conscience entitled to it.
-xxx-
The policy against unjust enrichment argues in favor of
the judgment rendered herein by the district court rather
than that of the Court of Civil Appeals. But for the wrongful
acts the innocent defendants would not have inherited
interests in the property. Dean Roscoe Pound speaks of
the constructive trust as a remedial institution and says that
it is sometimes used “to develop a new field of equitable
interposition, as in what we have come to think the typical
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case of constructive trust, namely, specific restitution of a
received benefit in order to prevent unjust enrichment.” 33
Harvard Law Review, pp. 420-421. See also Pomeroy’s
Equity Jurisdiction, (5th Ed.) Vol. 4, p. 95, Sec. 1044; 54
Am. Jur. p. 169, Sec. 219; Restatement of the Law of
Restitution, Sec 160, Subdivisions c and d, pp. 642-643.
Further and in the same trend, it has been said that equity
is never wanting in power to do complete justice. Hillv.
Stampfli (Com. App.) 290 S.W. 522,524.”
(Emphasis supplied)

96. In Pope (supra), it was clarified that there may be multiple
circumstances in the background of which a constructive trust may
be impressed upon the property in favour of the one who is, in
good conscience, entitled to it and who would be considered as
its beneficial owner in equity. It may be when one person obtains
legal title to property by (a) fraud, or (b) violation of confidence of
fiduciary relations, or (c) in any other unconscientious manner, such
that he cannot equitably retain the property which belongs to another.
Further, it was added that there may be a numberless amount of
situations, as numberless as the modes by which the property may
be obtained through bad faith and unconscientious acts, wherein
equity can impress a constructive trust.
97. In McAnulty v. Std. Ins. Co. reported in (2023) 81 F.4th 1091, the
United States Court of Appeals for the Tenth Circuit was faced with
a dispute over the life insurance proceeds between a decedent’s
ex-wife and his wife during his death. The ex-wife complained of
unjust enrichment and imposition of a constructive trust on her
behalf. The decedent’s only life insurance policy named his wife
as the beneficiary while a divorce decree between the decedent
and his ex-wife required him to maintain a $10,000 life insurance
policy with the plaintiff as the sole beneficiary until his maintenance
obligation to her was lawfully terminated. Amongst other things, while
remanding the matter for further proceedings, it was underscored
that unjust enrichment must first be established before the doctrine
of constructive trust is resorted to as a remedy and that gaining an
advantage for oneself through fraud or breach of fiduciary duty would
not be the exclusive ground for establishing a constructive trust. The
relevant observations are thus:
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“One final comment on constructive trusts. The district
court apparently assumed that a claim of unjust enrichment
requires a showing that the defendant’s property can
be traced back to the plaintiff. But this is not so. The
constructive-trust doctrine, including the practice of tracing,
arises only after the plaintiff has established a cause of
action for unjust enrichment. “The first step [in an unjust-
enrichment constructive-trust claim] is to establish that the
defendant is liable in restitution.” Restatement (Third) §
55 cmt. a. Only once a cause of action has been shown
does the inquiry turn to whether “the transaction that is
the source of the liability is one in which the defendant
acquired specifically identifiable property.” Id. If the answer
is yes, that property can be subject to a constructive trust
with no need for any tracing analysis. But that entrusted
property can then be traced forward to other property
upon which a constructive trust can be imposed. […] That
a “constructive trust is a remedy,” Restatement (Third)
§ 55 cmt. a. not a prerequisite to a showing of unjust
enrichment, is underscored by the Restatement (Third)’s
placement of § 55 (the section dedicated to constructive
trusts) in Chapter 7, which is titled “Remedies.”
-xxx-
however, Coriell did not say that gaining an advantage
for oneself through fraud or breach of fiduciary duty is
the exclusive ground for establishing a constructive trust.
Indeed, the very next sentence of the opinion states:
“Constructive trusts are such as are raised by equity in
respect of property which has been acquired by fraud, or
where, though acquired originally without fraud, it is against
equity that it should be retained by him who holds it.” 563
F.2d at 982 (internal quotation marks omitted; emphasis
added). Hence, Coriell is fully consistent with imposing a
constructive trust in this case.”
(Emphasis supplied)

98. Therefore, the American approach is that there is no unyielding
formula to which a court of equity is bound to, in deciding whether
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a constructive trust can be imposed since it is the equity of the
transaction which will shape the measure of the relief. To put it simply,
the focus of judicial enquiry would shift from the establishment of a
fiduciary/confidential relationship and its abuse, to a determination
of only whether someone has been unjustly enriched and should
therefore, be subject to an ‘equitable duty’ to return the unjust benefit.
99. On the other hand, English courts have stuck to the institutional model
which is underpinned by the existence of a fiduciary/confidential
relationship between the person(s) upon whom a constructive trust
is imposed and the person(s) in whose favour it is created. Since the
imposition of a constructive trust would have an impact on property
rights, the English Court are circumspect in imposing it for the bare
reason that justice be done inter se parties. According to English
jurisprudence, a constructive trust is an institution very much like
the express trust – a trust by analogy. It arises by operation of the
law but when one person is under an existent obligation to hold a
certain property for another. The constructive trust would come into
existence from the date of the circumstances which give rise to it and
the function of the court would only be to declare that such a trust
has arisen in the past. In Bailey v. Angove’s Pty Ltd. reported in
(2016) UKSC 47, the United Kingdom Supreme Court stressed on
the differences between an institutional and a remedial constructive
trust as follows:
“27 English law is generally averse to the discretionary
adjustment of property rights, and has not recognised
the remedial constructive trust favoured in some other
jurisdictions, notably the United States and Canada. It
has recognised only the institutional constructive trust:
Westdeutsche Landesbank Girozentrale v Islington
London Borough Council [1996] AC 669, 714–715 (per
Lord Browne-Wilkinson), FHR European Ventures LLP v
Cedar Capital Partners LLC [2015 AC 250, para 47. In
the former case, the difference was explained by Lord
Browne-Wilkinson in the following terms:
“Under an institutional constructive trust, the trust arises
by operation of law as from the date of the circumstances
which give rise to it: the function of the court is merely
to declare that such trust has arisen in the past. The
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consequences that flow from such trust having arisen
(including the possibly unfair consequences to third parties
who in the interim have received the trust property) are
also determined by rules of law, not under a discretion. A
remedial constructive trust, as I understand it, is different. It
is a judicial remedy giving rise to an enforceable equitable
obligation: the extent to which it operates retrospectively
to the prejudice of third parties lies in the discretion of
the court.”
(Emphasis supplied)

100. Keech v. Sandford reported in (1726) Sel Cah Ch 61 is a landmark
English decision on constructive trusts and a reflection of the rule
that a person in a fiduciary position must not put himself in a position
where his interest conflicts with that of the cestui que trust. Therein,
a trustee, who held a lease on behalf of an infant beneficiary, made
use of his influence in order to obtain a renewal of the lease for
himself. Applying the principles of equity, the trustee was declared
as holding the renewed lease also for the beneficiary and it was
observed as thus:
“If a trustee on the refusal of a lessor to renew a lease to
the trust were permitted to take a lease for himself, few
leases would ever be renewed in favour of trusts. This
prohibition was wholly understandable at that time. Many
ecclesiastical , charitable and public bodies were by law
restricted as to the length of leases which they were able
to grant and leases were therefore renewed more or less
as a matter of right. By taking a renewal of a lease for
himself, a trustee was therefore in practice depriving the
trust of a grant which it had a right to expect.”
101. In Paragon Finance plc v. Thakerar & Co. reported in (1999) 1 All
ER 400, the Court of Appeal highlighted a fine distinction between
the use of the words ‘constructive trust’ and ‘constructive trustee’ by
equity lawyers in two entirely different situations. The first, is where,
a person, though not expressly appointed as a trustee, has assumed
the duties of a trustee and is holding property by virtue of a lawful
transaction or legal arrangement and subsequently, commits a breach
of trust. The legal arrangement through which he assumes the duties
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of a trustee/fiduciary in the first place, is independent of the breach
of trust and such an underlying relationship by which control of the
property is obtained is not what is assailed or impeached by any
plaintiff. He does not receive the trust property in his own right but
by an agreeable transaction and his possession of the property is
characterised by the confidence/trust reposed in him. The subsequent
appropriation of the property by him for his own use is a breach of
that trust and he is made accountable since he was entrusted with
obligations of a trustee and it would be unconscionable for him to
assert any adverse beneficial interest over the property entrusted
to him. The second, is where the trust obligation itself arises as a
direct consequence of the transaction through which control of the
property is obtained. That very transaction is impeached by the
plaintiff, as fraudulent. No obligation or confidence is reposed on the
defendant and if he received any trust property at all, it would be by
means of an unlawful transaction and from the moment of receipt,
be adverse to the plaintiff. What English jurisprudence refers to as
the ‘institutional constructive trust’ is the former scenario and not the
latter. The relevant observations are reproduced below:
“Regrettably, however, the expressions ‘constructive
trust’ and ‘constructive trustee’ have been used by equity
lawyers to describe two entirely different situations. The
first covers those cases already mentioned, where the
defendant, though not expressly appointed as trustee, has
assumed the duties of a trustee by a lawful transaction
which was independent of and preceded the breach of
trust and is not impeached by the plaintiff. The second
covers those cases where the trust obligation arises as a
direct consequence of the unlawful transaction which is
impeached by the plaintiff.
A constructive trust arises by operation of law whenever the
circumstances are such that it would be unconscionable
for the owner of property (usually but not necessarily the
legal estate) to assert his own beneficial interest in the
property and deny the beneficial interest of another. In
the first class of case, however, the constructive trustee
really is a trustee. He does not receive the trust property
in his own right but by a transaction by which both parties
intend to create a trust from the outset and which is not
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impugned by the plaintiff. His possession of the property
is coloured from the first by the trust and confidence
by means of which he obtained it, and his subsequent
appropriation of the property to his own use is a breach
of that trust. Well-known examples of such a constructive
trust are McCormick v Grogan (1869_ LR 4 HL 82 (a case
of a secret trust) and Rochefoucald v Boustead [1897] 1
Ch 196 (where the defendant agreed to buy property for
the plaintiff but the trust was imperfectly recorded). Pallant
v Morgan [1952] 2 All ER 951, [1953] Ch 43 (where the
defendant sought to keep for himself property which the
plaintiff trusted him to buy for both parties) is another. In
these cases the plaintiff does not impugn the transaction
by which the defendant obtained control of the property.
He alleges that the circumstances in which the defendant
obtained control make it unconscionable for him thereafter
to assert a beneficial interest in the property.
The second class of case is different. It arises when the
defendant is implicated in a fraud. Equity has always
given relief against fraud by making any person sufficiently
implicated in the fraud accountable in equity. In such a case
he is traditionally though I think unfortunately described as
a constructive trustee and said to be ‘liable to account as
constructive trustee’. Such a person is not in fact a trustee
at all, even though he may be liable to account as if he
were. He never assumes the position of a trustee, and if
he receives the trust property at all it is adversely to the
plaintiff by an unlawful transaction which is impugned by
the plaintiff. In such a case the expressions ‘constructive
trust’ and ‘constructive trustee’ are misleading, for there is
no trust and usually no possibility of a proprietary remedy;
they are ‘nothing more than a formula for equitable relief’:
Selangor United Rubber Estates Ltd v Cradock (No 3)
[1968] 2 All ER 1073 at 1097, [1968] 1 WLR 1555 at 1582
per Ungoed-Thomas J.
The constructive trust on which the plaintiffs seek to rely
is of the second kind. The defendants were fiduciaries,
and held the plaintiffs’ money on a resulting trust for them
pending completion of the sub-purchase. But the plaintiffs
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cannot establish and do not rely upon a breach of this trust.
They allege that the money which was obtained from them
and which would otherwise have been subject to it was
obtained by fraud and they seek to raise a constructive
trust in their own favour in its place.”
(Emphasis supplied)

102. In Stevens v. Hotel Portfolio II UK Ltd. reported in (2025) UKSC
28, one Mr. Ruhan, a director of Hotel Portfolio II UK Ltd (hereinafter
HPII) was a constructive trustee of unauthorised profits in the sum
of around £95m made in breach of his fiduciary duty as the director
of HPII. Starting about a week later, the whole of that dividend was
spent by him upon speculative projects of his own such that all of it
was lost, untraceable and could not be recovered. Therefore, there
was a breach of his duties as a constructive trustee as well. The main
issue was whether a constructive trust of this kind would give rise
to any liability on part of the dishonest assistant of the constructive
trustee to compensate the beneficiary (HPII) for loss caused by
such breach. While answering in the affirmative, the majority opinion
observed as follows:
i. First, that there was no fundamental difference in the relationship
between a trustee and beneficiary on one hand, and the
analogous relationship between a fiduciary and principal on
the other. Therefore, when unauthorised profits were made
by the fiduciary, he became a constructive trustee of the said
monies immediately upon its receipt under an institutional
constructive trust. This principle, that a trustee or fiduciary hold
such profits upon an immediate institutional constructive trust
for the beneficiary cannot be said to depend upon the fact that
the fiduciary acted dishonestly. This rule of equity must not be
solely anchored on the existence of fraud or the absence of
bona fides on part of the fiduciary. A constructive trust can be
imposed in the absence of fraud as well.
ii. Secondly, when the unauthorised profits are dissipated, the
constructive trustee is said to have breached his duties because,
at the very least, he must conserve the said property/money
for the benefit of the beneficiary and not deploy it in such a
manner which destroys the beneficiary’s proprietary interest in
it. The relevant observations are thus:
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“21. […] First, there is no fundamental difference
between the relationship between trustee and
beneficiary and the analogous relationship between
fiduciary and principal (such as director and company)
in the present context. Most of the basic principles
were originally fashioned to regulate the former
and later applied analogically to the latter, once it
was clearly established, over a century ago, that a
company is both legal and beneficial owner of its
property: see Rukhadze v Recovery Partners GP Ltd
[2025] UKSC 10; [2025] 2 WLR 529, paras 3, 16,
24-25. In what follows I will refer generally to trustee
and beneficiary, save where it is necessary to speak
distinctly of fiduciary and principal.
-xxx-
23. Thirdly and importantly, it is common ground
that Mr Ruhan became a constructive trustee of
the dividend immediately upon its receipt, under an
institutional (rather than purely remedial) constructive
trust. Furthermore, although there may be debate
in particular cases about the precise nature and
extent of the duties of the trustee under such a
constructive trust, it is common ground that Mr
Ruhan’s dissipation of the dividend was a breach
of them. This is because at the very least the
constructive trustee’s duty is to conserve the trust
property for the benefit of the beneficiary, rather than
to deploy it in a way which destroys the beneficiary’s
proprietary interest in it, as Mr Ruhan did, dishonestly
assisted in that regard by Mr Stevens. And it is
inherent in that common ground that, whereas Mr
Ruhan had been a fiduciary for HPII rather than a
trustee stricto sensu, the relationship between them
in relation to the dividend once received by Mr Ruhan
was that of trustee and sole beneficiary, in which
capacity HPII had a right to call on Mr Ruhan for the
transfer of the property on demand, albeit in fact in
ignorance of that right, or indeed of the existence
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of the dividend itself or of the constructive trust of
it affecting Mr Ruhan. […]
-xxx-
25. The present case is not of course about bribes,
but it is an example of a profit made by a fiduciary
“as a result of his fiduciary position”, squarely within
the settled equitable principle which Lord Neuberger
derived from Keech v Sandford and recently examined
by this court in Aquila Advisory Ltd v Faichney [2021]
UKSC 49; [2021] 1 WLR 5666 and Rukhadze. Applied
to this case, it means that Mr Ruhan is to be taken as
having made the profit constituted by the dividend on
behalf of HPII, so that from the moment of its receipt
it was beneficially owned by HPII. Furthermore, to
the extent that there is any discernible distinction
between Keech v Sandford and this appeal, it is that
this is a plain case of fraud, whereas the older case
was not. But the principle that a trustee or fiduciary
holds such profits upon an immediate institutional
constructive trust for the beneficiary does not depend
at all upon the fiduciary having acted dishonestly.
As Lord Russell of Killowen put it in relation to the
parallel liability to account in Regal (Hastings) Ltd v
Gulliver [1967] 2 AC 134 at 144:
“The rule of equity which insists on those, who by use
of a fiduciary position make a profit, being liable to
account for that profit, in no way depends on fraud,
or absence of bona fides”.
-xxx-
29. […] This is not how the constructive trust arises.
It is equity’s automatic and immediate response to
a set of facts, just as is the common intention trust
which ordinarily comes into existence when two
people together buy a home which is conveyed into
the name of one of them, with the mutual intent that
they should be co-owners of it.
-xxx-
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42. […] The constructive trust of profits imposes the
usual obligation on the constructive trustee not to
dissipate the trust property, and the usual obligation
on both him, and upon any dishonest assistant in
the dissipation, to compensate the beneficiary for
any loss caused thereby.
-xxx-
100. It may assist in the digestion of this over-long
judgment if I summarise my essential conclusions
of law, as follows:
(1) Like any other trust, a constructive trust of
unauthorised profits gives rise to an immediate
proprietary interest of the beneficiary in the fund
representing those profits, from the moment of their
receipt by the trustee.
(2) A dissipation of the fund by the trustee is a breach
of trust for which the trustee is liable to compensate
the beneficiary for the loss of its proprietary interest.
That loss is generally to be assessed by reference
to the value of that proprietary interest, but for
the dissipation of which would still belong to the
beneficiary.
(3) A person who dishonestly assists the trustee in
the dissipation is jointly liable with the trustee for the
loss caused by the dissipation.
(4) Those general principles are unaffected by the
facts that (a) the fund held on constructive trust is
or represents unauthorised profits made in an earlier
breach of fiduciary duty to the same beneficiary, (b)
the making of the profits caused the beneficiary no
loss and (c) the effect of the constructive trust of the
profits was to confer a gain on the beneficiary.[…]”
(Emphasis supplied)

103. The constructive trust, according to England, arises the moment the
breach of fiduciary duty occurs which obliges the fiduciary to treat
the profit as belonging to the principal. They reject the idea that this
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constructive trust could be regarded as remedial which is imposed at
some later date by the court in exercise of their remedial discretion.
It is merely recognized at a later date but is ‘institutional’ since it
is deemed to arise automatically as a matter of law in specified
circumstances as opposed to being dependent on the discretion of
the court.
104. Therefore, constructive trusts are usually regarded as a residual
category and is a legal fiction ‘constructed’ by equity i.e., it attaches
by law to specific property which is not expressly subject to any trust
but held by a person in circumstances where it would be inequitable
to allow said person to assert full beneficial ownership of the property.
Therefore, it is imposed not necessarily to effectuate an expressed
or implied intention but to redress a wrong. It is the result of judicial
intervention. A constructive trustee is not necessarily a trustee in
the traditional sense but is nevertheless treated as such by equity.
While English courts emphasize on a pre-existing and underlying
fiduciary obligation, American courts are much more liberal with the
concept and impose it as a remedy where circumstances warrant
such intervention.
105. Most common law jurisdictions are accepting towards the doctrine of
constructive trust as adopted in England i.e., the institutional model
rather than a purely remedial one. Therefore, jurisprudentially there
would remain no bar for India to also adopt such an approach. We
say so also because, the Indian Trusts Act, 1882 (although dealing
with private trusts) recognises the concept of an English ‘constructive
trust’. Under Chapter IX titled ‘Obligation in the nature of trusts’
delineates several provisions wherein a resulting or a constructive
trust, as accepted in common law may be created. Additionally, the
Statement of Objects and Reasons of the Act reads as follows:
“With the few exceptions mentioned in this Statement,
the rules contained in the Bill are substantially those now
administered by English Courts of Equity and (under the
name of ‘justice, equity and good conscience’) by the
Courts of British India.
The Bill distributes the subject under the following heads :
I, Preliminary : II, the creation of trusts : III, the duties and
liabilities of trustees : IV, their rights and powers : V, their
disabilities : VI, the rights and liabilities of the beneficiary :
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VII, vacating the office of trustee : VIII, the extinction of
trusts; and IX, certain obligations of the nature of trusts.
-xxx-
Where no trust is declared, but for the purposes of justice
the law deems one to have been created, the trust is by
English lawyers termed constructive. Benami transactions,
where property is transferred to A for a consideration
paid by B, and B makes the payment for his own benefit,
have for centuries been familiar to the people of India :
gains made by one person at the cost of another are an
everyday source of litigation; and in no country, owing
to the extreme sub-division of immovable property and
the partition of inheritances, are constructive trusts more
common. Chapter IX avoids the fiction implied in the
term ‘constructive trusts’ by treating such confidences
as obligations in the nature of trusts properly so called.
It specifies the fourteen principal cases in which such an
obligation arises, as follows:
1. Where it does not appear that the transferor of property
intended to dispose of the beneficial interest (Section 80):
2. Where property is transferred to one person for a
consideration paid by another (Section 81):
3. Where the trust is incapable of execution or is executed
without exhausting the property (Section 82):
4. Where a transfer of property is made for an illegal
purpose (Section 83):
5. Where a bequest is made for an illegal purpose, or
where the revocation of a bequest is forcibly prevented
(Section 84):
6. Where a transfer is made in pursuance of a rescindable
contract (Section 85):
7. Where a transfer is made in fraud of the transferor’s
creditors (Section 86):
8. Where a debtor becomes his creditor ’s legal
representative (Section 87):
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9. Where a pecuniary advantage is gained by a person
in a fiduciary character (Section 88):
10. Where an advantage is gained by the exercise of
undue influence (Section 89):
11. Where an advantage is gained by a tenant for life or
other qualified owner in derogation of the rights of other
persons interested in the property (Section 90):
12. Where property is acquired with notice of an existing
contract affecting it (Section 91):
13. Where a person contracts to buy property to be held
on trust (Section 92):
14. Where one of several compounding creditors, by a
secret arrangement with the debtor, gains an advantage
over his co-creditors (Section 93):
The Bill also contains a general clause (Section 94)
providing for cases not so specified. It is believed that
this clause will cover that form of constructive trust which
the Punjab Courts have held to arise when a co-sharer
in a village community absents himself without expressly
abandoning his rights.”
(Emphasis supplied)

106. It is evident from the Statement of Objects and Reasons that the
provisions contained in the Indian Trusts Act, 1882 are substantially
those which were administered by the English Courts of Equity. As
regards Chapter IX, a reference is made to the English approach
of constructive trusts and it is stated that where no trust is declared
but the law deems one to have been created for the purposes of
justice, such a trust would be termed as ‘constructive’. The rationale
behind the enactment of Chapter IX was to avoid the fiction implied
in the term ‘constructive trusts’ and to codify the doctrine within
established parameters so that, even when motivated by the canons
of justice, equity and good conscience, unfettered discretion is not
employed by the courts while declaring a constructive trust (like in
American jurisprudence). However, merely because the Chapter
is titled ‘Obligations in the nature of a trust’, it cannot be stated
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that the concept of constructive trusts have been effaced from our
statute books. Furthermore, the repeal of a few provisions under this
Chapter, more specifically Sections 81, 82 and 94 respectively, by
the Prohibition of Benami Property Transactions Act, 1988, cannot
be considered to reflect the intention of the legislature to do away
with the concept of constructive trusts in the Indian context, in its
entirety. At the most, it could be said that certain types of constructive
trusts were declared to be impermissible under the Indian regime.
Therefore, there being no prohibition on the declaration of ‘constructive
trusts’ or as we call it, ‘obligations in the nature of a trust’ as far as
private trusts are concerned, there would also remain no inhibition
on courts to declare or impose a constructive trust on public entities.
The same is an equitable doctrine which can be resorted to when
the conditions for its imposition are met.
107. That constructive trusts can be imposed in the Indian regime was
also alluded to by this Court in Janardan Dagdu Khomane and
Another v. Eknath Bhiku Yadav & Ors. reported in (2019) 10 SCC
395 which elaborated on the doctrine of constructive trust. While also
quoting Story who explained the doctrine of ‘constructive trust’ in equity
jurisprudence, it was stated that the receiving of money which cannot
be conscientiously retained is sufficient to raise a trust, in equity, in
favour of the party for whom or on whose account the money was
received. It was reiterated that a constructive trust arises by operation
of law, irrespective of whether the parties harboured any intention
to create a trust. The relevant observations are reproduced as thus:
“32. A constructive trust arises by operation of law, without
regard to the intention of the parties to create a trust. It
does not require a deed signifying the institution of trust.
Under a constructive trust, the trust arises by operation
of law as from the date of the circumstances which give
rise to it. The function of the court is only to declare that
such a trust has arisen in the past.
33. Constructive trust can arise over a wide range of
situations. To quote Cardozo, J., “a constructive trust is
a formula through which the conscience of equity finds
expression”.
34. Story on Equity Jurisprudence has explained
“Constructive Trust” as:
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“One of the most common cases in which a Court of equity
acts upon the ground of implied trusts in invitum, is where a
party has received money which he cannot conscientiously
withhold from another party. It has been well remarked, that
the receiving of money which consistently with conscience
cannot be retained is, in equity, sufficient to raise a trust in
favour of the party for whom or on whose account it was
received. This is the governing principle in all such cases.
And therefore, whenever any controversy arises, the true
question is, not whether money has been received by a
party of which he could not have compelled the payment,
but whether he can now, with a safe conscience, ex aequo
et bono, retain it. Illustrations of this doctrine are familiar
in cases of money paid by accident, or mistake, or fraud.
And the difference between the payment of money under a
mistake of fact, and a payment under a mistake of law, in
its operation upon the conscience of the party, presents the
equitable qualifications of the doctrine in a striking manner.
It is true that Courts of Law now entertain jurisdiction in
many cases of this sort where formerly the remedy was
solely in Equity; as for example, in an action of assumption
for money had and received, where the money cannot
conscientiously be withheld by the party; following out the
rule of the Civil Law; Quod condition in debiti non datur
uitra, quam locupletior factus est, qui accepit. But this
does not oust the general jurisdiction of Courts of Equity
over the subject-matter, which had for many ages before
been in full exercise, although it renders a resort to them
for relief less common, as well as less necessary, than it
formerly was. Still, however, there are many cases of this
sort where it is indispensable to resort to Courts of Equity
for adequate relief and especially where the transactions
are complicated, and a discovery from the defendant is
requisite.
35. Section 90 (sic) of the Trusts Act states that if there
is a person in a fiduciary relation to another, he cannot
take advantage of that position so as to gain something
exclusively for himself, which he otherwise would not have
obtained, but for the position which he held.
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36. Section 94 of the Trusts Act, 1882 has allowed the
creation of a constructive trust when situations went beyond
the confines of the Act. Section 94 has later been repealed
by the Benami Transactions Prohibition Act, 1988. Section
94 of the Trusts Act read:
“94. Constructive trusts in cases not expressly
provided for.—In any case not coming within the scope
of any of the preceding sections, where there is no trust,
but the person having possession of property has not the
whole beneficial interest therein, he must hold the property
for the benefit of the persons having such interest, or
the residue thereof (as the case may be), to the extent
necessary to satisfy their just demands.”
37. In Gopal L. Raheja v. Vijay B. Raheja [Gopal L.
Raheja v. Vijay B. Raheja, 2007 SCC OnLine Bom 399 :
(2007) 4 Bom CR 288] , the Bombay High Court restrained
itself from exercising its equitable jurisdiction to apply the
English doctrine of constructive trust when the legislature
had specifically deleted it from the Trusts Act.
38. In our view, the repeal of Section 94 of the Act does
not put any fetter in declaring a trust, even if the situation
falls outside the purview of the Act. Its jurisdiction can
be derived from Section 151 CPC and Section 88 of the
Trusts Act.
(Emphasis supplied)

108. In Janardan Dagdu Khomane (supra), this Court also noted that
Section 88 of the Indian Trusts Act, 1882 provides that if a person
is in a fiduciary relation to another, he cannot take advantage of
that position so as to gain something exclusively for himself, which
he otherwise would not have obtained but for the position he held.
Although the decision of the Bombay High Court in Gopal L. Raheja v.
Vijay B. Raheja reported in 2007 SCC OnLine Bom 399 had refrained
from exercising its equitable jurisdiction to apply the English doctrine
of ‘constructive trust’ citing the repeal of Section 94 in the Indian
Trusts Act, 1882 by the Prohibition of Benami Property Transactions
Act, 1988, this Court disagreed with the said view and remarked that
such a repeal does not put any fetter in declaring a trust “even if the
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situation falls outside the purview of the Act”. It was opined that the
jurisdiction to invoke the said doctrine can always be derived from
Section 151 of the CPC and Section 88 of the Indian Trusts Act, 1882.
109. However, it must be noted that an institutional constructive trust
would arise the very moment any fiduciary removes or diverts the
property from its intended beneficiaries for his exclusive benefit or
for the benefit of those who are not the intended beneficiaries. This
need not necessarily be due to an intention to defraud but may also
arise due to a mistake. In other words, the moment the fiduciary
receives money which he cannot conscientiously retain for himself,
a constructive trust would be raised in favour of the beneficiaries on
whose account the money was originally received. To put it simply,
the factum that the fiduciary ‘withheld’ the property from its rightful
beneficiaries must be established. This would constitute a breach of
his/her fiduciary duty and this benefit which has accrued to him would
be held in constructive trust. The breach of his fiduciary duty i.e., his
duty towards the society and its intended beneficiaries, must exist.
110. Coming back to the facts of the present case, the main aim and
objective of the appellant Society is of a public and charitable nature. It
is also limpid from the MoA, that all the incomes, earnings, movable or
immovable properties are to be solely dedicated and applied towards
to the promotion of the society’s aims. The MoA also lays down a
strict “no profit rule” to the members of the Board, in any manner
whatsoever. Article 11.2.1 of the AoA vests all the properties, both
movable and immovable and all other kinds of assets in the Executive
Committee of the appellant Society. Article 11.2.3.4 provides for a
fundraising mechanism by way of gifts, donations, grants-in-aid or
otherwise, both within and outside India. Article 11.2.3.5 allows for the
Executive Committee to raise loans for the purpose of furthering the
objects of the appellant Society. Article 11.2.3.6 allows the receiving
of monies, securities, instruments, investments or any other assets
for and on behalf of the appellant Society. Article 13, in the most
unambiguous manner states that funds will be raised by way of
grants-in-aid, donations, gifts, subscription fees and income from
investments, loans and other means available to the Society and that
they will be used to carry out the aims and objectives of the Society.
111. A perusal of the MoA and AoA of the appellant society reveals that it
is a society of a charitable nature, having its properties vested in the
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governing body, who act as its fiduciaries. As elaborated previously,
any conduct by the fiduciary which deprived the intended beneficiaries
of their beneficial interest in the property, in such a manner that is in
contravention to the covenants that bind him and confers an advantage
to him to the detriment of the intended beneficiaries, must be taken
into consideration to see if a constructive trust can be raised in law.
All those diverted properties would then be held in a constructive trust
by those fiduciaries who diverted it, in the capacity of ‘constructive
trustees’. The respondent nos. 1 and 2 respectively have levelled
several allegations of siphoning of funds by the respondent nos. 3
and 4 respectively. The same would have to be conclusively proved
for a constructive trust to have been created in equity. Obviously, at
the stage of this present litigation, it is not possible for this Court to
enter into an extensive factual inquiry in this regard. That is for the
High Court to satisfy after the suit is allowed to progress. However,
the allegations in the plaint may be said to prima facie satisfy the
condition required to apply the doctrine of constructive trust to the
present facts. Not to mention that, if these allegations are found to
have no substance or plainly false, the entire suit would fail. But,
in the peculiar circumstance in which the present matter rests, that
would happen also for the reason that the circumstances which
required the imposition of a constructive trust do not exist.
112. Thus, yet another ingredient under Section 92 of the CPC which
requires to be satisfied, has been fulfilled. The counsel for the
appellant society has also submitted that the plaint is not entirely
convincing on the whether the appellant society can be considered
to be a constructive trust for the purposes of Section 92 and that
there is only one paragraph in the plaint devoted to the aforesaid
question. However, it is our view that the plaint cannot be scrutinised
in such a mechanical manner. It is the substance of the claim which
must be looked into and not merely the wording. Read in the right
context, the plaint is sufficiently forthcoming about the facts and
circumstances which evidence the existence of a constructive trust,
at least at present, under the eyes of law.

B. A breach of trust or the directions of the court being
necessary for the administration of the trust
113. A suit under Section 92 can be maintainable for two broad reasons –
one, that there has been a breach of any express or constructive
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trust created for a charitable or religious purpose or, two, that the
directions of the court are necessary for the administration of such
an express or constructive trust. The same was also emphasized
by the decision of this Court in Syed Mohd. Salie Labbai v. Mohd.
Hanifa reported in (1976) 4 SCC 780. Therein, it was held that a suit
against persons exercising de facto control over property which has
been dedicated for public use, would be maintainable, specifically
when such properties are alleged to have been mismanaged and
not maintained. The relevant observations are thus:
“64. […] It is true that Section 92 of the Code of Civil
Procedure applies only when there is any alleged breach
of any express or constructive trust created for a public,
charitable or religious purpose. It also applies where the
direction of the court is necessary for the administration of
any such public trust. In the instant case the defendants
have no doubt been looking after the properties in one
capacity or the other and had been enjoying the usufruct
thereof. They are, therefore, trustees de son tort and
the mere fact that they put forward their own title to
the properties would not make them trespassers […]
We, therefore, hold that Section 92 of the Code of Civil
Procedure is clearly applicable to the case.
65. Counsel for the appellants lastly argued that there is
no evidence to show that the appellants have committed
any negligence in managing the trust properties. Even
the trial court which had dismissed the plaintiffs’ suit had
returned a clear finding of fact that the defendants were
guilty of gross negligence in managing the properties. In
this connection the trial court found as follows:
“It was pointed out that there was mismanagement.
That there is mismanagement cannot be disputed.
For one thing, in spite of the decree of the court
for removal of certain superstructures on the burial
ground the Labbais evaded the issues for a period
of over twenty years. The plaintiffs have proved that
Plaint B schedule property has been dedicated to
the durga. But this property has been alienated by
the predecessors-in-interest of the defendants. In
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exchange, they have obtained C Schedule property....
The next contention was that the defendants have
not maintained accounts. It is true that the evidence
does not disclose that any accounts were maintained
or being maintained by the Labbais defendants.”
The learned Judge, however, tried to explain away these
acts of misfeasance on the ground that as the Rowthers
undertook not to interfere with the management or ask for
the account, the negligence committed by the defendants,
if any, was not actionable. In view of our findings, however,
that the mosque, its adjuncts and the burial ground are
public wakfs the question of negligence assumes a new
complexion. Apart from the acts of mismanagement, there
is definite oral evidence of the plaintiffs to show that the
graveyard is not properly managed and maintained. The
boundary wall has broken and cattle enter the graveyard
leading to its desecration. The evidence of the plaintiffs
also shows that even the mosque is in a state of disrepair
and no attempt is made to repair or maintain it properly.
Further-more, the defendants have constructed shops on
a part of the graveyard and in spite of several decrees
of the courts to demolish those shops they have not yet
obeyed the orders of the court to demolish the same. In
these circumstances, therefore, there is overwhelming
evidence on the record to show that the defendants were
guilty of grave mismanagement, and therefore a clear case
for formulating a scheme under Section 92 of the Code
of Civil Procedure by a suit has been made out by the
plaintiffs. The scheme, however, will be confined only to
the mosque, its adjuncts and the burial ground and not to
the durgah which has been held to be the private property
of the defendants.”
(Emphasis supplied)

114. In Ramji Tripathi (supra), this Court while holding that a suit for
the vindication of personal or individual rights was not maintainable,
observed that:
i. First, the facts and particulars as regards the defect in the
machinery for administration which plagued the trust and which
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required rectification, must be specifically pleaded. A bald
and standalone prayer that the direction of the court may be
necessary would not be enough and would be a mere pretence
for the purpose of bringing the suit under Section 92. In simpler
words, it must be shown that the directions of the court are
‘necessary’ in the facts and circumstances of the matter and
such a statement must not be made in vacuum without any
basis in reason or facts.
ii. Secondly, that it is only the allegations in the plaint that need
to be looked into in the first instance to determine whether a
suit would fall within the contours of Section 92. However, once
the evidence is taken, if the court is of the opinion that the
alleged breach of trust has not been made out and the prayer
seeking directions from the court is vague and/or rests on a
flimsy foundation, then the suit may be dismissed. The relevant
observations are thus:
“13. The trial court as well as the High Court found that
there was no evidence to substantiate the allegations
regarding the breach of trust said to have been
committed by Respondent 1. In para 20 of the plaint,
there was an allegation that the direction of the Court
was necessary for the administration of the Trust. But
no reasons were given in the plaint why the plaintiffs
were seeking the direction of the Court. There were
no clear allegations of maladministration viz. that
Respondent 1 was diverting the Trust properties for
his personal benefit or that he was committing any
devastavit. The High Court was of the view that since
the plaintiffs did not plead facts and particulars as
regards the defect in the machinery for administration
which had crept in under custom or rules which
required rectification, the prayer for direction was a
mere pretence to bring the suit under Section 92. A
direction cannot be given by the Court unless it is
shown that it is necessary for the proper administration
of the Trust. We do not think it necessary to decide
for the purpose of this case whether the words “where
the direction of the court is deemed necessary for the
administration of any such Trust” must be interpreted
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as meaning that where the court has to give directions
in the nature of framing a scheme or otherwise for the
administration of the Trust or whether those words
can refer only to directions given to existing trustee
when there is one or to new trustee when one is to be
appointed or to directions when there are allegations
of maladministration amounting to breach of trust. It is
sufficient for the purpose of this case to say that the
prayer for direction was a prayer in vacuum without
any basis in reason or facts.
14. It is, no doubt, true that 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 (See Association of R.D.B. Bagga
Singh v. Gurnam Singh [AIR 1972 Raj 263 : 1972
WLN 157 : 1972 Raj LW 182] , Sohan Singh v. Achhar
Singh [AIR 1968 P&H 463 : ILR 1968 Punj 359 : 1968
Cur LJ 480] and Radha Krishna v. Lachhmi Narain
[AIR 1948 Oudh 203 : 1948 OWN 179] . But, if after
evidence is taken, it is found that the 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 a suit purporting to be brought under Section
92 must be dismissed. This was one of the grounds
relied on by the High Court for holding that the suit
was not maintainable under Section 92.”
(Emphasis supplied)

115. In Vidyodaya Trust (supra), this Court had explained that in order to
constitute a breach of trust, there must be an element of dishonest
intention and lack of probity. If a mistaken action has been undertaken
but with all bona fides, the same would not amount to a breach
of trust. The Court also employed the test of a ‘prudent man’ to
see whether the required standards of care, caution, rectitude and
accuracy, without any reckless indifference has been exhibited by
the trust and its trustees. In the first instance, the court is required
to only look into the allegations in the plaint to see whether a suit
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under this provision lies. Once the suit commences and after the
evidence is taken, if it is revealed that the breach of trust which has
been alleged is not made out or, that the prayer for direction of the
court is vague and not based on any solid factual or reasonable
foundation, the court would be free to dismiss the suit for the said
reasons. The relevant observations are reproduced hereinbelow:
“12. […] Only if the preconditions are satisfied then only
leave can be granted as provided in Section 92. There must
be an element of dishonest intention and lack of probity.
When action is taken bona fide though there may be
mistaken action, that would not amount to breach of trust.
-xxx-
14. In reply, learned counsel for the respondents submitted
that while deciding on the question whether leave is to
be granted the statements in the plaint have to be seen
and not the allegations in the written submissions. It is
permissible to strike down the portion of averment. Though
the general principle may apply to the facts of the present
case, what is expected to be seen is if the trust has acted
as a prudent man would do and the standards of care and
caution required to be taken by a prudent man, and there
should not be reckless indifference and highest standard
of rectitude and accuracy is to be maintained.
-xxx-
20. In Swami Paramatmanand case [R.M. Narayana
Chettiar v. N. Lakshmanan Chettiar, (1991) 1 SCC 48]
it was held that 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. But
if after evidence is taken it is found that the 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 fact or reason but is made only
with a view to bringing the suit under the section then
suit purporting to be brought under Section 92 must be
dismissed.”
(Emphasis supplied)
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116. In the present case, the respondent nos. 1 and 2 respectively have
alleged that the respondent nos. 3 and 4 respectively, were indulging
in gross financial impropriety, misconduct and siphoning off of funds/
donations received by the appellant Society for personal gains. As
discussed in the previous section of this judgment, having arrived at
the conclusion that the present situation pertains to a ‘constructive’
and not an ‘express’ trust, the question remains how the aforesaid
allegations are to be considered, particularly in light of the condition
vis-à-vis Section 92 CPC presently discussed in this section. As
elaborated, the aforesaid allegations would have to be proven to
serve a dual purpose i.e., to first, attract the doctrine of ‘constructive
trust’ to be imposed in equity and second, to proceed to prove that
there has been a subsequent breach of that constructive trust or
at least, that the directions of the court would be necessary for the
administration of that constructive trust. To assert that there has
been a breach of the constructive trust which was imposed upon
an fiduciary who became a constructive trustee by virtue of his/her
actions, it must be proven that the funds or property of the society
that were allegedly diverted or siphoned by the respondent nos. 3
and 4 respectively were further ‘divested’ by them for purposes which
do not align with the aims and objectives of the appellant Society,
similar to that which occurred in Stevens (supra). In other words, the
duties which bound the respondent nos. 3 and 4 respectively upon
being designated as ‘constructive trustees’ must have also been
breached. Even if a further divestment of those diverted/siphoned
funds had not occurred and they still remained intact but in the
possession of the constructive trustees (respondent nos. 3 and 4
respectively) in their individual and not their fiduciary capacity, the
plaintiffs can assert that directions pertaining to that constructive trust
would still be needed from the court. Presently, we are convinced
that directions, at the very least, are indeed necessary.
117. The respondent nos. 3 and 4 respectively have vehemently
assailed the credibility of the Interim Forensic Audit Report and the
Final Forensic Audit Report as being riddled with inconsistencies,
unsubstantiated findings and categorical bias. However, at this stage
of the proceeding, it would not be appropriate for the court to assess
the veracity and legitimacy of all those observations/findings arrived
at in the aforesaid reports with a view to verify the allegations made
by the respondent nos. 3 and 4 respectively.
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118. This Court in Ramji Tripathi (supra) had observed that at the stage
of grant of leave, it is only the allegations in the plaint which must be
looked into in the first instance with a view to ascertain if the alleged
breach of trust or the fact that the directions of the Court may be
necessary, is evident or palpable and if the suit can be brought within
the ambit of Section 92. Even keeping aside the several forensic and
audit reports which suggest that the affairs of the appellant Society
must be scrutinised, a reading of the averments of the plaint fairly
reveals the questionable conduct on behalf of respondent nos. 3
and 4 respectively. The allegations made therein are serious and
cannot be ignored. Ultimately, as explained by us in the preceding
paragraphs, if those allegations are proven to be false, mala fide and
unfounded in the course of the suit proceedings, the entire case of
the plaintiffs may fall and the suit be dismissed. However, to force
a halt and sever the suit at its root, on the aforesaid contentions of
the respondent nos. 3 and 4 respectively, which require an extensive
factual inquiry, would not be proper at this stage.

C. The institution of the suit must be made by two or more
persons “having an interest in the trust”
119. The phrase “persons having an interest in the trust” must neither be
construed too narrowly or too widely. It must not be narrow for the
reason that the word used is “interest” instead of “direct interest”.
However, it must also be remembered that while no direct interest is
required, the interest must denote a present and substantial interest
and not a sentimental, remote, fictitious or purely illusory interest. It
must be clear and direct. The reason behind the incorporation of this
phrase under Section 92 of the CPC again boils down to the object
of preventing frivolous and mischievous applications being filed by
busy bodies, unconnected members of the public, and persons who
do not possess a specific interest in the trust.
120. In T. Varghese George v. Kora K. George reported in (2012) 1 SCC
369, this Court considered the locus standi of the plaintiffs to institute
the suit under Section 92 concerning a secular public educational
trust. Therein, of the three plaintiffs, one was a member of the Board
of Trustees nominated by the founder himself, the second plaintiff
was the brother-in-law of the founder who had raised funds for
buying lands for the institution and for the construction of its school
buildings and the third plaintiff was a parent of a student attending the
542 [2025] 8 S.C.R.

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institution. Considering the above, this Court had opined that none of
these persons could be criticised as persons who lacked any good
intention for the Trust and that they were persons interested in the
functioning of the Trust. The relevant observations are reproduced
hereinbelow:
“31. As can be seen from this section two or more persons
having interest in the trust may institute a suit in the
Principal Civil Court of Original Jurisdiction to obtain a
decree concerning a public charity for various purposes
mentioned therein. Such suit will lie where these persons
make out a case of alleged breach of any trust created
for public purposes or for directions of the court for
administration of the trust. One of the purposes set out
in sub-section (1)(g) is settling a scheme, sub-section
(1)(b) speaks about a new trustee being appointed, and
sub-section (1)(a) speaks about removing a trustee. Out
of the three persons who filed Civil Suit No. 601 of 1987,
Shri D.V.D. Monte was a member of the Board of Trustees
nominated by the founder Shri T. Thomas himself. Shri
Kora K. George is brother-in-law of Shri T. Thomas. He
has raised funds for buying lands for the Institution, and
for constructing the buildings of the School. Therefore,
although the Single Judge held that he could not be said
to be a person having interest in the Trust, that finding was
reversed by the Division Bench in OSA No. 49 of 1995. Dr.
Natrajan is a parent of a student of the Institution. None of
these persons can be criticised as persons lacking good
intention for the Trust.”
(Emphasis supplied)

121. Coming back to the facts of the present case, it can be seen that the
respondent no. 1 (original plaintiff no. 1) was the co-founder-cum-
President of the board of the appellant Society who had devoted
around 15 years in service of the appellant Society and the public
at large. The respondent no. 2 (original plaintiff no. 2) albeit being
the mother of the respondent no. 1, is a current board member of
the appellant Society. Both of them can be said to have been closely
associated with the functioning of the appellant Society. Therefore,
they can also be said to have a genuine, clear and direct interest in
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the preservation and proper management of the appellant Society and
the properties which may be subject to a constructive trust, especially
since they have devoted time and energy into the establishing and
running of the appellant Society.
122. While scrutinising whether the respondent nos. 1 and 2 respectively
are persons interested in the trust and whether they are bringing
the suit in a representative capacity, it is not just their designation
or position which must be given importance to. They might be seen
members of a society (former and current), who happen to be agitating
a suit against other members, however, due regard must be given
to whether they’re representing themselves solely as members in
seeking certain remedies or if they have also brought the suit in the
interest of the public at large, especially the beneficiaries. It must
also be seen whether it is a vested interest in the matter which is
the pure and sole reason for bringing the suit or if public interest
is also brought to the notice of the court. We are not convinced
that the respondent nos. 1 and 2 respectively are merely bringing
forward some issues pertaining to disputes between members. While
they have sought some remedies related to personal grievances
and the wrongful dismissal of the respondent no. 1 which could be
seen as unduly magnifying an election dispute, there are several
other allegations in the plaint which cannot simply be ignored and
which give the respondent nos. 1 and 2 respectively, a dual role/
capacity, whilst they’re agitating the matter under Section 92 of the
CPC. The larger background in which the suit is brought alludes to
the existence of public interest also at play.
123. The respondent nos. 3 and 4 respectively have primarily objected
to the inclusion of the respondent no. 2 as one of the original
plaintiffs since they contend that she has been roped in merely to
fulfil the mandatory condition of having a minimum of two plaintiffs
under Section 92. They have also alleged that there might be
some discrepancies in the signatures of the respondent no. 2 and
that there is a possibility of them being forged. However, it is not
for a court at this stage of the suit to assess the validity of these
allegations, especially when the respondent nos. 3 and 4 have
not been able to categorically assert that the respondent no. 2 is
not a board member of the appellant Society or is in no manner
associated with the organisation or is a person not having a direct
interest in the functioning of the appellant Society. Such being the
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case, the impugned decision was right in so far as taking the view
that the respondent nos. 1 and 2 respectively are “persons having
an interest in the trust”.

D. The reliefs falling within the scope of those enumerated
under Section 92(1) of the CPC along with the object,
purpose and capacity in which the suit is brought.
124. Section 92(1) of the CPC provides for a list of reliefs which can
be obtained by the plaintiffs through a decree from the court. They
relate to removing a trustee, appointing a new trustee, vesting any
property in a trustee, directing accounts and inquiries, declaring
what proportion of the trust property or of the interest therein shall
be allocated to any particular object of the trust, authorising the
whole or any part of the trust property to be let, sold, mortgaged, or
exchanged, settling a scheme, or granting such further or other reliefs
as the nature of the case may require. As has been indicated by us
in the preceding paragraphs, a suit under Section 92 is a special
suit of a representative nature which must essentially be brought
by plaintiffs in their capacity as representatives of the public and for
the vindication of public rights.
125. In Mahant Pragdasji Guru Bhagwandasji v. Patel Ishwarlalbhai
Narsibhai reported in (1952) 1 SCC 323, this Court had held that
the plaintiffs must pray for one or the other of the reliefs that are
specifically mentioned under Section 92(1). Therein, the courts had
concurrently found, after examining the evidence on record that was
adduced by the parties, that the allegations of breach of trust were not
made out. The plaintiffs therein, had not sought for any direction from
the court for the proper administration of the trust either. Therefore,
the very foundation of the suit under Section 92 became wanting
and there remained no cause of action for the institution of the suit.
In such circumstances, while dismissing the suit, the High Court
had, however, recorded a conclusive finding about the existence of
a public trust and made a declaration to that effect. This Court was
of the view that such a finding was wholly inconsequential and could
not be made a part of the decree or the final order in the shape of a
declaratory relief for the reason that it cannot fall under those reliefs
mentioned under Section 92(1). The relevant observations are thus:
“9. […]Such suit can proceed only on the allegation that
there is a breach of such trust or that directions from the
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court are necessary for the administration thereof, and it
must pray for one or other of the reliefs that are specifically
mentioned in the section. It is only when these conditions
are fulfilled that the suit has got to be brought in conformity
with the provision of Section 92CPC. As was observed
by the Privy Council in Abdur Rahim v. Mohd. Barkat Ali
[Abdur Rahim v. Mohd. Barkat Ali, (1927-28) 55 IA 96 : 1927
SCC OnLine PC 98] , 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 92CPC.
10. In the case before us, the prayers made in the plaint
are undoubtedly appropriate to the terms of Section 92CPC
and the suit proceeded on the footing that the defendant,
who was alleged to be the trustee in respect of a public
trust, was guilty of breach of trust. The defendant denied
the existence of the trust and denied further that he was
guilty of misconduct or breach of trust. The denial could
not certainly oust the jurisdiction of the court, but when
the courts found concurrently, on the evidence adduced
by the parties, that the allegations of breach of trust were
not made out, and as it was not the case of the plaintiffs,
that any direction of the court was necessary for proper
administration of the trust, the very foundation of a suit
under Section 92CPC, became wanting and the plaintiffs
had absolutely no cause of action for the suit they instituted.
In these circumstances, the finding of the High Court about
the existence of a public trust was wholly inconsequential
and as it was unconnected with the grounds upon which
the case was actually disposed of, it could not be made
a part of the decree or the final order in the shape of a
declaratory relief in favour of the plaintiffs.
11. It has been argued by the learned counsel for the
respondents that even if the plaintiffs failed to prove the
other allegations made in the plaint, they did succeed in
proving that the properties were public and charitable trust
properties—a fact which the defendant denied. In these
circumstances, there was nothing wrong for the court to
give the plaintiffs a lesser relief than what they actually
claimed. The reply to this is, that in a suit framed under
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Section 92CPC the 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 these clauses. 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; but when the case of the plaintiff fails for want
of a cause of action, there is no warrant for giving him a
declaratory relief under the provision of Section 92CPC.
The finding as to the existence of a public trust in such
circumstances would be no more than an obiter dictum
and cannot constitute the final decision in the suit.
12. The result is that in our opinion the decision of the High
Court should stand, but the decree and the concluding
portion of the judgment passed by the trial court and
affirmed by the High Court on appeal shall direct a dismissal
of the plaintiff’s suit merely without it being made subject
to any declaration as to the character of the properties.
To this extent the appeal is allowed and the final decree
modified. The order for costs made by the courts below will
stand. Each party will bear his own costs in this appeal.”
(Emphasis supplied)

126. In Mahant Pragdasji (supra), it was argued that even though the
plaintiffs failed to prove the other allegations in the plaint, they had
indeed succeeded in proving that the properties in question were
public and charitable trust properties and that, therefore, the High
Court had merely granted a ‘lesser’ relief than what was claimed
under the suit, which relief did not offend Section 92. However,
this Court had categorically held that in such a suit, the only reliefs
which the plaintiff(s) can claim and the court can grant, are those
enumerated specifically under the different clauses under section
92(1). Therefore, the relief granted by the High Court in the form of
a declaration that the properties in suit are in fact trust properties
does not come under any of the clauses under Section 92(1). Had
the situation been different i.e., if the plaintiff had succeeded in
bringing an action under Section 92 and where the defendant had
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denied the existence of a trust, a declaratory relief that the trust
does exist may be made as ancillary to the main relief under Section
92(1) claimed by the plaintiff(s). However, if the suit fails for want of
cause of action, it would not be appropriate for the court to grant a
declaratory relief purportedly under Section 92(1).
127. The aforesaid decision has been discussed only with a view to
emphasise that the reliefs claimed by the plaintiffs, must fall within
those reliefs outlined under Section 92(1). In this context, the nature
of relief(s) which could be claimed or granted under the residual
clause (h) under Section 92(1) was discussed by the three-judge
bench decision of this Court in Charan Singh v. Darshan Singh
reported in (1975) 1 SCC 298. This Court elaborated on whether
clause (h) providing for “further or other relief” must be taken in
connection with or considered as akin to clauses (a) to (g) or,
whether any relief other than those outlined under clauses (a) to
(g) would in all circumstances be covered by clause (h) in case
of an alleged breach of an express or constructive trust. Attention
was drawn to the fact that the word used after clause (g) and
before clause (h) was “or”. In a given context, it was stated that
it may be construed as “and” conjunctively and in others, it would
remain as “or” in the disjunctive sense. Further elaborating on the
aforesaid, it was stated that if any “further relief” was asked for in
addition to any of the reliefs already mentioned under clauses (a)
to (g), then the word “or” must be construed as “and”. However,
if the relief prayed for is an “other relief” which is not in any way
consequential to or in addition of the reliefs already mentioned
under clauses (a) to (g), then the word “or” must be construed in
the literal sense as an “or”. It is in the latter scenario, where an
“other relief” is claimed that the relief must be akin to or of the
same nature as any of the reliefs enumerated under clauses (a)
to (g). The relevant observations are thus:
“1. […]The plaintiffs respondents in this appeal filed by the
defendants-appellants by special leave of this Court from
the decision of the High Court of Judicature of Punjab and
Haryana filed a suit in the year 1963 against Appellant 1
alone (for the sake of brevity described as the appellant
hereinafter in this judgment) praying for a decree for
permanent injunction against him to restrain him.
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“from interfering with the maintaining of the Guru
Granth Sahib for religious recitals in the Darbar Sahib
in the Dharamsala also known as Dharamsala Dera
Baba Jaimal Singh situated in Village Balsarai Tehsil
and District Amritsar as also restraining him from
interfering with the plaintiffs and other satsangis’ rights
of reciting the Guru Granth Sahib and holding and
joining the religious congregations and Satsang in
the abovementioned Gurdwara Baba Jaimal Singh.”
-xxx-
6. […] Out of the three conditions which are necessary
to be fulfilled for the application of Section 92, two are
indisputably present in this case viz. (1) the suit relates
to a public charitable or religious trust; (2) it is founded
on an allegation of a breach of trust and the direction of
the Court is required for administration of the trust. The
debate and dispute between the parties centered round the
requirement of the fulfilment of the third condition, namely,
whether the reliefs claimed are those which are mentioned
in sub-section (1) of Section 92 of the Code. […]
7. The High Court in the letters patent appeal has taken
the view that the relief sought for in the suit does not fall
under any of the clauses (a) to (h) of Section 92 of the
Code. Learned counsel for the appellant has assailed this
view and submitted that the relief sought for falls under
clause (e) or (g) or in any event under clause (h). In our
judgment the relief sought for in this case does not strictly
or squarely fall within clause (e) or (g) but is very much akin
to either and hence is covered by the residuary clause (h).
8. Lord Sinha delivering the judgment of the Judicial
Committee of the Privy Council in Abdur Rahim v. Syed
Abu Mahomed Barkat Ali Shah [AIR 1928 PC 16 : 55 IA
96 : 108 IC 361] rejected the argument that the words “such
further or other relief as the nature of the case may require”
occurring in clause (h) must be taken, not in connection
with the previous clauses (a) to (g) but in connection with
the nature of the suit. The argument was that any relief
other than (a) to (g) in the case of an alleged breach of
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an express or constructive trust as may be required in the
circumstances of any particular case was covered by clause
(h). It was repelled on the ground that the words “further
or other relief” must on general principles of construction
be taken to mean relief of the same nature as clauses (a)
to (g). It would be noticed that the word used after clause
(g) and before clause (h) is “or”. It may mean “and” in the
context, or remain “or” in the disjunctive sense in a given
case. If any further relief is asked for in addition to any of
the reliefs mentioned in clauses (a) to (g) as the nature
of the case may require, then the word “or” would mean
“and”. But if the relief asked for is other relief which is not
by way of a consequential or additional relief to any of the
reliefs in terms of clauses (a) to (g), then the word “or”
will mean “or”. The other relief however, cannot be of a
nature which is not akin to or of the same nature as any
of the reliefs mentioned in clauses (a) to (g). According
to the plaintiffs case one of the objects of the religious
trust was the worship of Granth Sahib and its recital in
congregations of the public. In the suit a decree declaring
what portion of the trust property should be allocated
to the said object could be asked for under clause (e).
The plaintiffs could also ask for the settling of a scheme
under clause (g) alleging mismanagement of the religious
trust on the part of the trustees. In the settlement of the
scheme could be included the worship and recital of Granth
Sahib — the holy Granth. The plaintiffs in their plaint did
not in terms ask for the one or the other. They, however,
alleged acts of breach of trust, mismanagement, undue
interference with the right of the public in the worship of
Granth Sahib. They wanted a decree of the Court against
the appellant to force him to carry out the objects of the
trust and to perform his duties as a trustee. Reading the
plaint as a whole it is not a suit where the plaintiffs wanted
a declaration of their right in the religious institution in
respect of the Granth Sahib. But it was a suit where they
wanted enforcement of due performance of the duties of
the trustee in relation to a particular object of the trust.
It is well-settled that the maintainability of the suit under
Section 92 of the Code depends upon the allegations in
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the plaint and does not fall for decision with reference to
the averments in the written statement.
-xxx-
11. […] In our judgment therefore the courts below were
right in taking the view that the present suit was a suit for
a decree under Section 92 of the Code and since it was
not filed in conformity with the requirement of the said
provision of law it was not maintainable. The contrary
view taken by the Division Bench of the High Court in the
letters patent appeal is not correct.”
(Emphasis supplied)

128. In Charan Singh (supra), the contentious relief prayed for was
not a “further relief” under clause (h) i.e., there were not multiple
prayers of which some already fell under the reliefs contemplated
under clauses (a) to (g) and the prayer in question fell outside the
scope of clauses (a) to (g). It was a solitary relief which solely and
completely fell under the ambit of “other relief” mentioned under
clause (h). Therefore, this Court had to delve into whether the “other
relief” claimed could be said to be akin to or of the same nature as
those already enumerated under clauses (a) to (g). In conducting
such an examination, it was opined that the relief prayed for was in
the background of allegations of breach of trust, mismanagement
and undue interference with the right of the public in the worship
of the Granth Sahib. In essence, what the plaintiffs wanted was
a decree of the Court against the defendant in order to force him
to carry out the objects of the trust and to perform his duties as
a trustee. It was further held that, upon reading the plaint as a
whole, what was claimed was not a declaration of the rights of the
plaintiffs in the religious institution in respect of the Granth Sahib,
but an enforcement of due performance of the duties of the trustee
in relation to a particular object of the trust. Therefore, this solitary
“other relief” was akin to those already mentioned under clauses (a)
to (g) and was held to fall within the clause (h) and consequentially,
under Section 92 of the CPC.
129. It has been sufficiently explained that the special nature of the suit
under Section 92 requires it to be filed fundamentally on behalf of
the public for the vindication of public rights. In Sugra Bibi v. Hazi
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Kummu Mia reported in 1968 SCC OnLine SC 99, this Court had
placed reliance on the reasoning given by Woodroffe, J., in Budreedas
v. Choonilal reported in ILR 33 Cal 789 and the opinion of Leach,
C.J. in Tirumalai-Tirupati Devasthanams Committee v. Udiayar
Krishnayya Shanbhaga reported in 1943 SCC OnLine Mad 48, to
state that, the fact that a suit relates to a public trust of a religious or
charitable nature and that the reliefs claimed fall within clauses (a) to
(h) of Section 92(1) ‘would not by themselves attract the operation
of the section’. It must be shown that the suit is of a representative
character which is instituted in the interests of the public and not
merely for the vindication of the individual or personal rights of the
plaintiff(s). In other words, the Court must go beyond the reliefs and
also give due regard to the capacity in which the plaintiffs are suing
along with the purpose for which the suit is brought. The relevant
observations are reproduced hereinbelow:
8. […] It is true that the facts that a suit relates to public trust
of a religious or charitable nature and the reliefs claimed
fall within clauses (a) to (h) of sub-section (1) of Section
92 of the 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 Woodroffe,
J. in Budreedas v. Choonilal [ILR 33 Cal 789 at p 807] :
“It is obvious that the Advocate-General, Collector
or other public officer can and do sue only as
representing the public, 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 of their own
individual right, the suit is not within or need not be
brought under the section.”
9. This principle was accepted as sound by a Full Bench
of the Madras High Court in Appanna v. Narasigna [ILR 45
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Mad 113] . In that case, a suit was instituted by a trustee
of a public religious trust against a 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 v. Udiayar Krishnayya Shanbhaga [ILR 1943
Mad 619] . 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 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 in Shanmukham Chetty v. Govinda
Chetty [ILR 1938 Mad 39] . On the order 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 the purpose for which the suit is
brought. The judgment of the Privy Council in Abdur
Rahim v. Mahomed Barkat Ali [(1927) ILR 55 Cal 519
(PC)] lends no support for the opinion expressed
by the Full Bench in Janki Bai v. Thiruchitrambala
Vinayakar [(1935) ILR 58 Mad 988 (FB)] ”.
10. 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 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
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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 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.
We are accordingly of the opinion that the suit falls within
the purview of the provisions of Section 92, Civil Procedure
Code and in the absence of the consent in writing of the
Advocate-General the suit is not maintainable.”
(Emphasis supplied)

130. In Sugra Bibi (supra), the suit was brought by the plaintiff-appellant
who was the wife of a deceased joint-Mutwalli praying that the
defendant-respondent who was the other joint-Mutwalli, be removed
from his office and that her minor son be instead appointed as Mutwalli
of the Wakf Estate. Still, this Court had held that the suit brought by
the appellant must be treated as one instituted in a representative
capacity on behalf of all the beneficiaries of the Wakf. It was stated
that the reliefs were not for enforcing any private rights but for the
removal of the defendant as a trustee and for the appointment of a
new trustee in his place. Therefore, what follows is that the true nature
of the suit must be determined on a comprehensive understanding of
the facts of the matter and not merely on a superficial consideration
of who is bringing the suit.
131. The aforesaid principle was reiterated in Ramji Tripathi (supra)
wherein this Court endeavoured to ascertain the ‘real nature of the
suit’ to assess whether it was for the vindication of personal or public
rights. It was stated that it is the object or purpose of the suit and
not the reliefs that must decide whether the suit is one for agitating
personal or public rights. Further, it was opined that taking into
account the dominant purpose of the suit in light of the allegations
made in the plaint would also aid is assessing the true nature of the
suit. Applying the said principle, the suit was ultimately said to not fall
within the contours of Section 92 of the CPC since the issue centred
around the succession to the headship of a Math and was concerned
with the right to the office of a trustee. The Court also observed that
if the real purpose in bringing the suit was to vindicate the general
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right of the public i.e., to have the rightful person appointed to the
office, then there was no reason for the plaintiffs to have omitted to
implead or at least refer to the other persons who were nominated by
the predecessor in his Will, in the plaint. The relevant observations
are reproduced hereinbelow:
“10. A suit under Section 92 is a suit of a special nature
which presupposes the existence of a public Trust of a
religious or charitable character. Such a suit can proceed
only on the allegation that there was a breach of such
trust or that the direction of the court is necessary for
the administration of the trust and the plaintiff must pray
for one or more of the reliefs that are mentioned in the
section. It is, therefore, clear that if the allegation of breach
of trust is not substantiated or that the plaintiff had not
made out a case for any direction by the court for proper
administration of the trust, the very foundation of a suit
under the section would fail; and, even if all the other
ingredients of a suit under Section 92 are made out, if
it is clear that the plaintiffs are not suing to vindicate the
right of the public but are seeking a declaration of their
individual or personal rights or the individual or personal
rights of any other person or persons in whom they are
interested, then the suit would be outside the scope of
Section 92 (see N. Shanmukham Chetty v. V.M. Govinda
Chetty [AIR 1938 Mad 92 : 176 IC 26 : 1937 MWN 849] ,
Tirumalai Devasthanams v. Udiavar Krishnayya Shanbhaga
[AIR 1943 Mad 466 : (1943) 56 LW 260] , Sugra Bibi v.
Hazi Kummu Mia [AIR 1969 SC 884 : (1969) 3 SCR 83
: (1969) 2 SCJ 365] and Mulla: Civil Procedure Code
(13th edn.) Vol. 1, p. 400). A suit whose primary object
or purpose is to remedy the infringement of an individual
right or to vindicate a private right does not fall under the
section. It is not every suit claiming the reliefs specified
in the section that can be brought under the section but
only the suits which, besides claiming any of the reliefs,
are brought by individuals as representatives of the public
for vindication of public rights, and in deciding whether
a suit falls within Section 92 the court must go beyond
the reliefs and have regard to the capacity in which the
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plaintiffs are suing and to the purpose for which the suit
was brought. This is the reason why trustees of public trust
of a religious nature are precluded from suing under the
section to vindicate their individual or personal rights. It is
quite immaterial whether the trustees pray for declaration
of their personal rights or deny the personal rights of one or
more defendants. When the right to the office of a trustee
is asserted or denied and relief asked for on that basis,
the suit falls outside Section 92.
11. We see no reason why the same principle should not
apply, if what the plaintiffs seek to vindicate here is the
individual or personal right of Krishnabodhashram to be
installed as Shankaracharya of the Math. Where two or
more persons interested in a Trust bring a suit purporting
to be under Section 92, the question whether the suit is to
vindicate the personal or individual right of a third person
or to assert the right of the public must be decided after
taking into account the dominant purpose of the suit in the
light of the allegations in the plaint. If, on the allegations
in the plaint, it is clear that the purpose of the suit was to
vindicate the individual right of Krishnabodhashram to be
the Shankaracharya, there is no reason to hold that the
suit was brought to uphold the right of the beneficiaries
of the Trust, merely because the suit was filed by two or
more members of the public after obtaining the sanction
of the Advocate-General and claiming one or more of the
reliefs specified in the section. There is no reason to think
that whenever a suit is brought by two or more persons
under Section 92, the suit is to vindicate the right of the
public. As we said, it is the object or the purpose of the
suit and not the reliefs that should decide whether it is
one for vindicating the right of the public or the individual
right of the plaintiffs or third persons.
12. The trial court, after reading the allegations in the plaint
and after looking into the entire evidence in the case,
came to the conclusion that the suit was primarily one for
declaration that Krishnabodhashram was duly installed as
the Shankaracharya of the Math on June 25, 1953 and that
Respondent 1 had no right to be nominated as the Head of
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the Math by Brahmanand as he did not possess the requisite
qualification and that his possession of the Trust property
was only in the capacity of a trustee de son tort, and so he
must be removed from the headship of the Math. The High
Court saw no reason to differ from the finding. We would be
slow to disturb a finding of this nature especially when we see
that the allegations in the plaint are reasonably susceptible
of being so read. We think that the purpose of the suit was
to settle the controversy as to whether Krishnabodhashram
or Respondent 1 had the better claim to the headship of
the Math and to the possession and management of its
properties by obtaining a declaration of the Court. If the real
purpose in bringing the suit was to vindicate the general
right of the public to have the rightful claimant appointed to
the office, there was no reason why the plaintiffs omitted to
implead or at least refer in the plaint to the three persons
nominated by Brahmanand in his Will to succeed him in
the order indicated therein especially when it is seen that
the plaintiffs accepted the custom of the Math to have the
successor nominated by the incumbent for the time being
of the office of Shankaracharya.”
(Emphasis supplied)

132. The same was reiterated in by this Court in Vidyodaya Trust (supra).
It was cemented that the court must go beyond what is literally stated
in the reliefs and focus also on the purpose and object for which the
suit was filed. On a comprehensive analysis of the averments in the
plaint, if it is revealed that the primary object was the vindication of
individual or personal rights of some person, then such a suit must
fall. That a hard-and-fast rule cannot be made for ascertaining what
the real purpose of the suit is was also emphasized. The same was
elaborated as follows:
13. To find out whether the suit was for vindicating public
rights there is necessity to go beyond the relief and to
focus on the purpose for which the suit was filed. It is the
object and purpose and not the relief which is material.
A co-trustee is not remediless if the leave is not granted
under Section 92.
-xxx-
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19. In the suit against public trusts, if on analysis of the
averments contained in the plaint it transpires that the
primary object behind the suit was the vindication of
individual or personal rights of some persons an action
under the provision does not lie. As noted in Swami
Paramatmanand case [R.M. Narayana Chettiar v. N.
Lakshmanan Chettiar, (1991) 1 SCC 48] a suit under
Section 92 CPC is a suit of special nature, which
presupposes the existence of a public trust of religious
or charitable character. When the plaintiffs do not sue
to vindicate the right of the public but seek a declaration
of their individual or personal rights or the individual or
personal rights of any other persons or persons in whom
they are interested, Section 92 has no application.
-xxx-
23. One of the factual aspects which needs to be highlighted
is that the allegations which have been made against
Respondents 2, 3 and 10 are referable to a decision taken
by the Board, though may be by majority. The fundamental
question that arises is whether allegations against three of
them would be sufficient to taint the Board’s decision. As
was observed by this Court in Swami Paramatmanand case
[R.M. Narayana Chettiar v. N. Lakshmanan Chettiar, (1991)
1 SCC 48] , to gauge whether the suit was for vindicating
public rights, the Court has to go beyond the relief and to
focus on the purpose for which the suit is filed. To put it
differently, it is the object or the purpose for filing the suit and
not essentially the relief which is of paramount importance.
There cannot be any hard-and-fast rule to find out whether
the real purpose of the suit was vindicating public right or
the object was vindication of some personal rights. For
this purpose the focus has to be on personal grievances.
24. On a close reading of the plaint averments, it is clear
that though the colour of legitimacy was sought to be given
by projecting as if the suit was for vindicating public rights
the emphasis was on certain purely private and personal
disputes.”
(Emphasis supplied)
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133. On a comprehensive reading of the averments of the plaint in the
instant case, what comes across is that the plaintiffs have made
serious allegations as regards the misadministration of the appellant
Society along with levelling accusations of gross financial impropriety,
misconduct and siphoning off of funds by the respondent nos. 3 and
4 respectively. This, they contend, has ultimately affected the public
at large who are the beneficiaries of the activities of the appellant
society. However, having said the above, it cannot be ignored that
the respondent nos. 1 and 2 respectively have also vehemently made
averments regarding the wrongful dismissal of the respondent no. 1
from the post of the President and also as a board member of the
appellant Society, and seek her reinstatement in one of the prayers.
Additionally, they seek a declaration that all the decisions made
by the board of the appellant Society after the date of dismissal of
the respondent no. 1 be termed as illegal and void. The impugned
decision is right in so far as observing that the respondent no. 1
has also sought to agitate personal/private grievances through this
suit. It must be kept in mind that a suit under Section 92 is one
of a ‘special nature’. Therefore, issues involving the day-to-day
management of the institution and grievances regarding election
of members or certain board decisions pertaining to the reshuffling
of the elected/board members, must not be made in a suit of this
nature, especially when such grievances can be redressed through
other mechanisms or under a regular suit not falling within Section
92. Such issues must not be deviously magnified or amplified as if
there is a breach of trust warranting intervention under this provision.
134. However, the fact that certain private rights are being agitated must
not be reason enough to ignore the other allegations made in the
suit regarding the functioning of the appellant Society and dismiss
the suit outrightly, provided the suit is instituted in a representative
capacity. It would always be open for the High Court, during the
course of the suit proceedings, to grant not all but only some of
the reliefs claimed by the respondent nos. 1 and 2 respectively, for
the reason that the others are clearly beyond the scope of what is
contemplated under Section 92 of the CPC. The reliefs in the present
plaint, insofar as they agitate private rights, cannot be granted under
a suit of this nature.
135. Additionally, as opined in Charan Singh (supra), when there exist
some reliefs which clearly fall under clauses (a) to (g), the other
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prayers must be seen as constituting “further relief” and be interpreted
with a conjunctive “and”. The non-conformity of those “further
reliefs” with the reliefs enumerated under clauses (a) to (g) would
not necessarily affect the maintainability of the suit itself. Herein, it
is limpid that prayers (c), (d) and (e) of the plaint respectively, fall
within clauses (a), (d) and (g) respectively of Section 92(1) for the
removal of trustee(s), directing accounts and inquiries, and settling a
scheme respectively for the appellant Society. In other words, there
exist prayers which clearly bring the scope of the suit within that of
Section 92. In such a scenario, the prayers in the plaint which are
specific to the vindication of personal rights of the respondent no.
1 would fall under “further relief(s)” and not “other relief(s)” and not
have the consequence of affecting the maintainability of the suit,
by themselves. For the sake of argument, had they been the only
reliefs prayed for by the respondent nos. 1 and 2, they would have
instead fell under the ambit of “other relief(s)”, and the word “or” under
clause (h) would have literally been construed as a disjunctive “or”.
We would have then examined whether those “other relief(s)” were
akin to or of the same nature as those already enumerated under
clauses (a) to (g) of Section 92(1). Those prayers clearly being for
vindication of personal rights would have revealed that the suit’s
sole and unequivocal purpose was not for any public purpose and
have resulted the application for grant of leave to be dismissed.
However, that not being the case presently, the prayers made by
the respondent nos. 1 and 2 respectively largely fall under the ambit
of Section 92(1).
136. As expounded by us in the preceding paragraphs and rightly pointed
out in Sugra Bibi (supra), Ramji Tripathi (supra) and Vidyodaya
Trust (supra), what must be looked at, is not only whether the reliefs
prayed for fall within clauses (a) to (h) of Section 92(1) but also the
predominant object or purpose for which the suit has been filed on
a holistic reading of the entire plaint. The question as to whether
the suit has been filed by the plaintiffs, as representatives of the
public for the vindication of public rights must assume paramount
importance. The capacity in which the plaintiffs are suing must be
given due consideration. As elaborated by us above, some prayers
i.e., prayers (a) and (b) of the plaint fall outside the scope of Section
92(1) and some i.e., prayers (c), (d) and (e) of the plaint fall within
the scope of Section 92(1). A reading of the contents of the plaint
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reveal several averments regarding the circumstances which led to
the dismissal of the respondent no. 1 as also circumstances and
events indicating the questionable conduct on part of respondent nos.
3 and 4 respectively in their capacity as fiduciaries. Therefore, the
allegations in the plaint by themselves are also not clearly indicative
of a single object/purpose for which the suit has been instituted i.e.,
whether it has been instituted by the respondent nos. 1 and 2 for
the vindication of public rights in a representative capacity or for the
purpose of canvassing personal grievances alone. No doubt, the
respondent nos. 1 and 2 respectively may also have a personal axe
to grind with the appellant Society and also respondent nos. 3 and
4 respectively, however, insofar as the background in which prayers
(c), (d) and (e) have been made, it cannot be said with certainty that
these prayers are also made with an absence of bona fides and a
with vested interests. It cannot be said that the appellant Society is
being needlessly entangled in a frivolous litigation or in a dispute
which only pertains to the election/day-to-day management of the
appellant Society.

F. CONCLUSION
137. For the sake of convenience, a conspectus of the legal and factual
discussion in the preceding paragraphs is as follows:
i. A suit under Section 92 of the CPC is a representative suit of
a special nature since the action is instituted on behalf of the
public beneficiaries and in public interest. Obtaining a ‘grant of
leave’ from the court before the suit can be proceeded with, acts
as a procedural and legislative safeguard in order to prevent
public trusts from being subjected to undue harassment through
frivolous suits being filed against them and also to obviate a
situation that would cause a further wastage of resources which
can otherwise be put towards public charitable or religious
aims. However, at the stage of grant of leave, the court neither
adjudicates upon the merits of the dispute nor confers any
substantive rights upon the parties.
ii. Several decisions of this Court have outlined certain conditions
or essential pre-requisites that need to be fulfilled for a suit
to be maintainable under this provision. This Court in Ashok
Kumar Gupta (supra) delineated them as follows – (a) the trust
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in question must be created for public purposes of a charitable
or religious nature; (b) there must exist a breach of trust or a
direction of the court must be necessary for the administration
of the trust; and (c) the relief claimed must be one or other of
the reliefs as enumerated under Section 92(1) of the CPC. In
order to successfully establish that a suit is not maintainable
under Section 92, it would be sufficient to prove that any one of
the conditions enumerated above has not been met, however,
in order to assert its maintainability, all the aforesaid conditions
need to be satisfied.
iii. A trust can be said to have been created for a ‘public purpose’
when the beneficiaries are the general public who are
incapable of exact ascertainment. Even if the beneficiaries
are not necessarily the public at large, they must at least be
a classified section of it and not a pre-ascertained group of
specific individuals.
iv. A crucial condition that needs satisfaction is whether the
institution/organisation in relation to which certain reliefs are
sought can in fact be considered to be a ‘trust’ or a ‘constructive
trust’.
v. When no formal recognition has been given to the institution,
the creation of a public trust can be inferred from the relevant
circumstances surrounding the coming into existence of and
functioning of the institution/entity in question. Although it is
not possible to provide an exhaustive list of the same, yet they
may include – (a) the method of devolution of the property to
the institution or its acquisition and the circumstances along
with the intention behind the grant of property i.e. whether it
was for the benefit of the organization/public beneficiaries or
for the personal benefit of any particular individual/family; (b)
whether the grant is accompanied with any fetter/obligation or
qualified with a condition, either express or implied, regarding its
use by the grantee; (c) whether the ‘dedication’ was complete
i.e., whether there was an absolute cessation or complete
relinquishment of ownership of the property on the part of the
grantor and a subsequent vesting of the property in another
individual (trustee) for the said object; (d) whether the public
user or an unascertained class of individuals could exercise any
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‘right’ over the organization and its properties; (e) the manner
of use of the profits accrued, more particularly, whether it is
applied/re-applied towards the benefit of the organization and
its objectives, etc.
vi. If the aforementioned circumstances exist and the entity has
been, much later in time, registered as a society under the
Societies Registration Act, 1860, it would still be treated as a
‘public trust’ as per the dictum of the Full Bench of the Kerala High
Court in Kesava Panicker (supra) wherein it was observed that
the mere factum of registration of a society under the Societies
Registration Act, 1860, after it attained the characteristics of a
public trust, could not change the character of the properties
which had already been constituted as trust properties.
vii. However, if the institution has been registered, from its inception,
as a society under the Societies Registration Act, 1860, it is true
that whenever a society acquires property, it cannot be said that
it declares itself a trustee in respect of said property. In other
words, the effect of registration under the Societies Registration
Act, 1860 would not be to automatically invest the properties of
the society with the character of trust property. This has been
consistently laid down by the decisions of several High Courts.
viii. Having said so, one must examine what effect the mechanism
of vesting provided under Section 5 of the Societies Registration
Act, 1860 has on the society. It reads that – “The property,
movable and immovable, belonging to a society registered under
this Act, if not vested in trustees, shall be deemed to be vested,
for the time being, in the governing body of such society[…]”.
What follows is that the property belonging to the society can
either be vested in ‘trustees’ or in the governing body of the
society. This vesting has been envisaged because a society
registered under the aforesaid Act is not a juristic person or a
body corporate capable of holding property by itself.
ix. The phrase, “if not vested in trustees” must be read to mean
that a trust can be created, either expressly or impliedly, before
or after the registration of a society, for the purpose of holding
its properties. A public trust would be created prior to the
registration of a society if the broad circumstances enumerated
under point (v) are met. In such a case, all the properties of
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Operation Asha v. Shelly Batra & Ors.

the society which had been imbued with the character of ‘trust
property’ would be subject to Section 92. However, if it is argued
that a trust has instead separately been created for holding the
property of the society after its registration as a society, the same
must be clearly and sufficiently proven. Here, the separate trust
which has been created and the properties which has been
vested in said trust would be subject to scrutiny under Section
92. In both these scenarios, an ‘express trust’ would be created
and in a suit under Section 92 CPC, the first criteria i.e., the
existence of an express or constructive trust, would be met.
x. In the absence of such a separate vesting in trustees as
aforesaid, the property belonging to the society would be
automatically vested, through a deeming fiction, in the governing
body of the society. Such a governing body is duty bound to
ensure that the property is put towards and utilised for the
purposes/aims of the society as laid out in its Memorandum of
Association or any Rules and Regulations governing the said
matter. In the event of the society’s dissolution, the members
would not derive any right to distribute the assets belonging to
the society between themselves. Both during the subsistence
and dissolution of the society, the members or the governing body
cannot be said to possess any beneficial or individual interest
over the property vested in them. They would also safeguard
the society’s property for the future members of the society or
the future governing body such that perpetuity is assigned to
both the society and its property, unless expressly dissolved.
All these factors evidence that the governing body must also
act within the contours of a strict fiduciary relationship.
xi. Legislative creativity was employed to ensure that the incapability
of the society to hold the property by itself does not have
any practical effect on its ability to use and administer those
properties while also ensuring that the property of the society
may not be squandered or the object and purpose for which
the society was formed may not be defeated by persons having
control of the properties. Therefore, Section 5 can be seen as
providing two options, or mechanisms through which a society
can hold the property belonging to itself – One, in trustee(s)
or, two, in the governing body of the society. Both these
mechanisms/options belong to the same genus (fiduciaries),
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albeit they don’t fall in the same species (the former is a trustee
stricto sensu and the latter is not).
xii. Therefore, while the society cannot be considered as an ‘express
trust’, what must also be noted, at this crucial juncture, is that,
for an entity to be brought within the rigours of Section 92, the
plaintiff has the option of also contending that a ‘constructive
trust’ exists in the circumstances and a breach of such a
constructive trust has occurred or that the directions of the Court
are necessary for the administration of such a constructive trust.
xiii. A constructive trust, arises by operation of law, without regard
to or irrespective of the intention of the parties to create a trust.
It is imposed predominantly because the person(s) holding
the title to the property would profit by a wrong or would be
unjustly enriched if they were permitted to keep the property.
The American and English models of ‘constructive trust’
although similar in nomenclature, bears a doctrinal difference,
the former is remedial while the latter is institutional. In other
words, in implying the existence of a constructive trust, the
English Courts recognise or give legal efficacy to a fiduciary/
confidential relationship or ‘institution’ that already exists. It would
arise, by operation of law, but when one person is under an
existent obligation to hold a certain property for another. This
constructive trust would come into existence from the date of
the circumstances which give rise to it and the function of the
court would only be to declare that such a trust has arisen in
the past.
xiv. What must, however, be noted is that, for this equitable doctrine
to be applied, the fiduciary must receive property or money
which he cannot conscientiously retain. It is only thereafter that
a constructive trust would be raised in favour of the beneficiaries
on whose account the money was originally received. To put
it simply, the factum that the fiduciary ‘withheld’ the property
from its rightful beneficiaries must be established. That such
a fiduciary sought to misapply the property in contravention to
the covenants that bound him, or sought to gain an advantage
for himself, must be proved for a constructive trust to come
into existence by the operation of law. That he further divested
the said siphoned property/funds, would have to be proved in
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Operation Asha v. Shelly Batra & Ors.

order to assert that the ‘constructive trust’ has additionally been
breached. Even in the absence of such a further divestment,
the directions of the court may still be necessary for the
administration of the constructive trust.
xv. The respondent nos. 1 and 2 respectively, having made several
allegations of siphoning of funds by the respondent nos. 3 and
4 respectively, for their own personal use, could be said to have
prima facie satisfied the condition required to apply the doctrine
of constructive trust to the present facts. Not to mention that,
if these allegations are found to have no substance or plainly
false, the entire suit would fail. But, in the peculiar circumstance
in which the present matter rests, that would happen also for the
reason that the circumstances which required the imposition of a
constructive trust do not exist/have not been proven. However, if
found true, all the property diverted for the purpose of obtaining
a pecuniary advantage would be subject to a constructive trust,
the administration of which can be sought in a suit under Section
92 of the CPC and the respondent nos. 3 and 4 respectively
would be considered to be ‘constructive trustees’.
xvi. The phrase “persons having an interest in the trust” must neither
be construed too narrowly nor too widely. It must not be narrow
for the reason that the word used is “interest” instead of “direct
interest”. However, it must also be remembered that while no
direct interest is required, the interest must denote a present
and substantial interest and not a sentimental, remote, fictitious
or purely illusory interest.
xvii. While scrutinising whether the respondent nos. 1 and 2
respectively are persons interested in the trust and whether
they are bringing the suit in a representative capacity, it is not
just their designation or position which must be looked into or
given importance to. While recognising that they have also
sought some remedies related to personal grievances and the
wrongful dismissal of the respondent no. 1 which could be seen
as unduly magnifying an election dispute, there are several
other allegations in the plaint which cannot simply be ignored
and which give the respondent nos. 1 and 2 respectively, a dual
role/capacity, whilst they’re agitating the matter under Section 92
of the CPC. The larger background in which the suit is brought
alludes to the existence of public interest also at play.
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xviii. The reliefs claimed by the plaintiffs, must fall within those
reliefs outlined under Section 92(1). As regards the question
when a relief can be considered to fall under the residual
clause (h) providing for “further or other relief” under Section
92(1), this Court in Charan Singh (supra) elaborated that if
the relief prayed for is not a “further relief” but an “other relief”
which is not in any way consequential to or in addition of the
certain other reliefs already mentioned under clauses (a) to
(g) and prayed for, then the “other relief” must be akin to or
of the same nature as any of the reliefs enumerated under
clauses (a) to (g).
xix. Furthermore, the special nature of the suit under Section 92
requires it to be filed fundamentally on behalf of the public for
the vindication of public rights. Therefore, courts must go beyond
the reliefs and also give due regard to the object and purpose
for which the suit is brought. The true nature of the suit must
be determined on a comprehensive understanding of the facts
of the matter and a hard-and-fast rule cannot be made for the
same. The fact that certain private rights are being agitated must
not be reason enough to ignore the other allegations made in
the suit and dismiss it outrightly, provided the suit is instituted
in a representative capacity. The reliefs in the present plaint,
insofar as they agitate private rights, cannot be granted under
a suit of this nature.
xx. It is clarified that the issues involving the day-to-day management
of the institution and grievances by members qua other members
as regards the election of members or certain board decisions
pertaining to the reshuffling of the elected/board members,
must not be made in a suit of this nature, especially when such
grievances can be redressed through other mechanisms or under
a regular suit not falling within Section 92. Such issues must not
be deviously magnified or amplified as if there is a breach of
trust warranting intervention under this provision. Therefore, the
reliefs insofar as the removal of the respondent no. 1 from the
post of President and board member respectively are concerned
along with the grievances which the respondent nos. 1 and 2
respectively may have with the other board members, would
have to be agitated in a separate suit not being falling under
Section 92 of the CPC.
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138. For all the foregoing reasons, this appeal fails and is hereby dismissed.
The underlying suit bearing CS (OS) No. 153 of 2020 filed before
the Single Judge of the High Court must be commenced at the
earliest and the High Court must pay careful attention to whether the
circumstances necessitating the imposition of a ‘constructive trust’
is made out. If yes, it must delineate the properties which would be
subjected to the constructive trust and assess whether the reliefs
prayed for under prayers (c), (d) and (e) respectively of the present
plaint may be granted.
139. The Registry shall circulate one copy each of this judgment to all
the High Courts.
140. Pending application(s), if any, shall stand disposed of.

Result of the case: Appeal dismissed.

†
Headnotes prepared by: Nidhi Jain