Holding

A suit under Section 92 CPC is not maintainable where the dominant purpose is to enforce private rights, and the High Court’s order granting leave without notice is set aside.

Summary

The Vidyodaya Trust filed a petition under Section 34 of the Indian Trust Act, 1882 challenging the administration of the trust, which was dismissed by the trial court. The respondents then sought leave to file a suit under Section 92 of the Code of Civil Procedure, 1908, which was granted by the district court without notice to the trust. The trust appealed, arguing that the suit was essentially a private grievance and not a public‑interest action, and that the High Court erred in upholding the grant of leave. The Supreme Court examined the purpose of Section 92, emphasizing that the provision is intended to protect public trusts from harassment and that a suit must be brought in a representative capacity to vindicate public rights. It held that the plaint’s averments showed the suit was driven by personal motives, not by a genuine public‑interest purpose, and therefore the leave was improperly granted. Consequently, the Court set aside the High Court’s order and allowed the appeal, directing the trial court to dispose of the application for revocation of leave on its merits.

Issues considered

Whether a suit filed under Section 92 CPC is maintainable when the primary object is to vindicate private or personal rights rather than public trust interests.
Whether leave of the court may be granted without giving notice to the proposed defendants in a Section 92 suit.
Whether the High Court correctly upheld the district court’s grant of leave to institute the suit.

Legislation cited

Code of Civil Procedure, 1908s. 92
Indian Trust Act, 1882s. 34

Subjects

Section 92 CPCpublic trustmaintainabilityprivate grievanceleave of courtIndian Trust Actcivil revisionharassment of trusts

Judgment

[2008] 3 S.C.R. 569
"'
VIDYODAYA TRUST A
v.
MOHAN PRASAD R & ORS.
(Civil Appeal No. 1633 of 2008)
FEBRUARY 27, 2008
B
(DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.)
~
...
Code of Civil Procedure, 1908; s. 92/lndian Trust Act,
1882; s.34:
Public Trust of religious/charitable character - c
Maintainability of suit u/s. 92 CPC in respect of administration
of - Held: Object of s.92 of the Code is to protect the public
trust of religious nature from harassment by filing suits against
them - From averments in plaint, if it transpires that personal
rights of some persons vindicated, no action under provisions D
~ --"".,
of s. 92 CPC would lie - Object and purpose of filing suit is of
paramount importance and not the relief - The Court has to
go beyond the relief to find out the purpose behind filing the
suit and also to find out the possibility of suit filed by persons
whose activities were not for protection of interests of public E
trusts - In the present case, inconsistent colour of legitimacy
sought to be given by projecting as ifthe suit was for vindicating
public rights but the emphasis was on certain purely private
...... and personal disputes - Hence, High Court was wrong in
• holding grant of leave by the Court as legal and proper. F
Respondents filed a petition before the Court of the
District Judge under Section 34 of the Indian Trust Act,
1882 in respect of administration of the appellant-trust.
The Trial Court dismissed the petition as not maintainable.
The respondents filed an application seeking leave of the G
Court to institute the suit under Section 92 of CPC. I.A.
't .... was allowed by the Court granting leave to file the suit.
Appellant alleged that leave to file the suit was granted to
the respondents without serving notice to it. The Court
569 H
570 SUPREME COURT REPORTS [2008] 3 S.C.R.
~·

A held that the suit was maintainable. Questioning
. correctness of the order, a petition for revision in terms of
Section 115 CPC was filed before the High Court. The High
Court dismissed the Civil Revision petition as not
maintainable. Aggrieved, the appellants filed a writ petition,
B which was dismissed by the High Court. Both the orders
were challenged before this Court in the earlier round of
litigation. The appeal was disposed of by this Court
holding that Civil Revision Petition was maintainable and
directed the High Court to dispose of the Revision
c Petition. Single Judge of the High Court dismissed the
Revision Petition holding that though there were certain
personal reliefs claimed as evident from the prayer
portion, but that was not sufficient to hold that the suit
was not for protection of interests of public trust but to
claim and enforce private or personal rights; that there
0
would be need for public notice under Order 1 Rule 8 CPC
in a suit under Section 92; and that though there were
certain inadequacies they did not vitiate the proceedings.
The Civil Revision was accordingly dismissed. Hence the
present appeal.
E
Appellant contended that though the High Court
correctly formulated the issue that there is no bar on
trustees instituting the suit in terms of Section 92 CPC,
yet there has to be a pointed consideration as to whether
F they were verblating a private or personal grievance or
vindicating public rights in respect of trust in
representative character. But having said so, it did not
consider the true nature of the suit filed; that even on a
cursory analysis the position is clear that the plaintiffs
G were highlighting personal grievances; that plaintiff No.1
was a Vice Chairman, Plaintiff No.3 is the father-in-law of
plaintiff No.1 and most of the allegations of alleged
improper action revolved round close relatives of these
two plaintiffs; that the dispute is essentially an inter-trust
H dispute; that it is desirable that before the leave is granted
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 571

...
.-. in terms of Section 92 CPC the other side should be heard;
and that all the allegations are personal grievances.
A

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 to the allegations in the
written submissions; that though the general principle B
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 c
rectitude and accuracy is to be maintained.
Allowing the appeal, the Court
HELD: 1.1 The object of Section 92 CPC is to protect
the public trust of a charitable and religious nature from D

.. - 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, E
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. (Para - 18) [586-F-H] F
•·
B.S. Adityan and Ors. vs. B. Ramachandran Adityan and
Ors. (2004) 9 SCC 720; R.M. Narayana Chettiar and Anr. vs.
N. Lakshmanan Chettiar and Ors. (1991) 1 SCC 48 and
Swami Paramatmanand Saraswati and Anr. vs. Ramji Tripathi
and Anr. (1974) 2 sec 695 - relied on. G

1.2 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
H
572 SUPREME COURT REPORTS [2008] 3 S.C.R.

A under the provision does not lie. (Para -18) [586-H; 587-A]
...
1.3 In the instant case, 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
B 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. 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
c 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. (Para - 22)
[587-G-H; 588-A]
D
Swami Paramatmanand Saraswati and Anr. vs. Ramji
Tripathi and Anr. (1974) 2 sec 695 - relied on.
1.4 On a close reading of the plaint averments, it is
-- "
clear that though the color of legitimacy was sought to
E be given by projecting as if the suit was for vindicating
public rights the emphasis was on certain purely private
and personal disputes. (Para - 23) [588-B]
1.5 It is not every suit claiming reliefs specified in
Section 92 that can be brought under the Section; but
F 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
G 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. In that view of the matter the High Court was
H certainly wrong in holding that the grant of leave was legal
. VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 573
[DR. ARIJIT PASAYAT, J.]
...
and proper. Hence, the impugned order of the High Court A
is set aside. (Para - 25) [588-E-G]
Sugra Bibi vs. Hazi Kummu Mia AIR (1969) SC 884 -
relied on.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1633 B
of 2008.

• ¥ From the final Judgment and order dated 15/12/2006 of
the High Court of Kerala at Ernakulam in CRP No. 1260/2003.

Harish N. Salve, J.L. Gupta, S. Udaya Kumar Sagar, Bina c
Madhavan, Meenakshi Grover and Hemal K. Sheth (for M/s.
Lawyer's Knit & Co.) for the Appellant.

KrishnanVenugopal, A. Raghunath and A. Venayagam
Balan for the Respondents.
D
The Judgment of the Court was delivered by
. ,. .-4_

Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. This is the second round of litigation before this Court.
Challenge in this appeal is to the order passed by a learned
E
Single Judge of the Kerala High Court holding that leave had
been rightly granted in terms of Section 92 of the Code of Civil
Procedure, 1908 (in short the 'CPC').

3. Defendants 1 to 3, 6, 8 and 10 had moved the High
. 1.
Court in Civil Revision Petition questioning order of learned
District Judge who had taken the view that the suit was
F

maintainable and justified under Section 92 of CPC.
4. Earlier the matter was before this Court in Civil Appeal
No.3679 of 2006. The factual position as was noticed in the
earlier appeal was as follows: G

"Respondents as plaintiffs filed OP NO .238 of 2000 before
~, the District Judge, Ernakulam under Section 34 of the Indian
"' Trust Act, 1882 (in short the 'Trust Act') in respect of Vidyodaya
Trust and administration of the said trust and the school run by
H
574 SUPREME COURT REPORTS [2008] 3 S.C.R.

,..
A the trust. But the said Court by order dated 31.1.2000 held that
the OP was not maintainable and dismissed the petition.
Thereafter, the suit No.20 of 2000 was filed by the respondents
as plaintiffs claiming several reliefs. The respondents filed an
application (IA 349 of2000) seeking leave of the Court to institute
B the suit under Section 92 of CPC. According to the appellant
without notice to him the concerned Court granted leave to the
respondents to institute the suit. The suit was numbered as OS
20 of 2000. Plaintiffs filed written statement inter-alia taking the ~
~

stand that suit was actuated by personal motives. The suit under
c Section 92 CPC is of a special nature which pre-supposes
existence of a Public Trust of religious or charitable character.
From the averments in the plaint and the reliefs sought for it is
clear that the plaintiffs were not suing to vindicate rights of the
public, and it has not been filed in the representative capacity.
The plaintiffs four in number are trustees who instituted both the
D
suits against other trustees for personal reliefs and as individuals
and seeking vindication of alleged individual rights and not as ~
'
representatives of the public. Therefore, the suit as framed is
not maintainable under Section 92 CPC. The defendants filed
an application before the District Judge, Ernakulam for hearing
E as preliminary issue, the question of maintainability of the suit.
On the basis of contentions raised by the plaintiffs as well as
defendants, the Court framed preliminary issue as to whether
the suit as framed is maintainable under Section 92 CPC. By
order dated 11.4.2003 the Court held that the suit was
F maintainable. ;,.
.
Questioning correctness of the order, a petition for revision
in terms of Section 115 CPC was filed. The High Court
dismissed the Civil Revision petition on the ground that the same
was not maintainable. Though the High Court made reference
G
to some factual aspects, it ultimately came to hold that the
revision petition was not maintainable as order dated 4.11.2003
was an interlocutory one. Thereafter the appellant filed writ
petition before the High Court praying, inter-alia, for writ, direction ~ ••
or order, questioning the order dated 2003. By order dated
H
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 575
[DR. ARIJIT PASAYAT, J.]
. 20.8.2004 the High Court dismissed the Writ petition holding A
that the view taken in the Civil Revision apparently was not
correct, as by no stretch of imagination it can be held that the
High Court had no jurisdiction. It accepted the stand of the
respondents herein that since there was discussion on merits,
though the petition was not held to be maintainable subsequent B
~ proceedings initiated under Article 227 of the Constitution of
India, 1950 (in short the 'Constitution') cannot be maintained."
• >"
5. Both the orders i.e. one in the Revision Petition and the ·
--j other in the Writ Petition were challenged before this Court.
Taking note of the facts, the appeal was disposed of with the c
following conclusions:
"Judged in the aforesaid background the view of the
learned Single Judge that the Civil Revision was not
maintainable is clearly indefensible. Learned counsel for
D
the respondent has fairly conceded to this position. If it is
t - held that the suit in terms of Section 92 CPC is not
maintainable, that would have the result of final disposal
of the suit. However, the learned counsel made an attempt
to justify the order by stating that the matter was also dealt
with on merits. That would not improve the situation. The E
__. Civil Revision was clearly maintainable. Therefore, we
allow the appeal so far as it relates to Civil Revision Petition
No.1260/2003 disposed of by judgment dated 5.2.2004
by the High Court. The said order is set aside.
• j. F
The High Court shall now hear the Civil Revision on
merits and dispose of the same as expeditiously as
practicable preferably within four months from the date of
receipt of our order. The time period is being fixed
~ considering the pendency of the matter for a considerable
G
length of time.
In view of the order passed in the appeal relating to
'• Section 115 CPC no order is necessary to be passed in
( ""· respect of the judgment in the writ petition. It may be noted
--<
that the learned Single Judge observed that the Civil H
~
576 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Revision was maintainable and, therefore, declined to •
entertain the writ petition. This order was passed on the
face of the order passed by learned Single Judge holding
that it was not maintainable. The same, therefore, is not
justifiable. But it is not necessary to deal with that matter
B as the Civil Revision shall be heard on merit."
6. The High Court in the impugned judgment focused the
adjudication to the issue as to wh~ther the plaintiffs in the case ...
at hand can be said to be laying the suit on behalf of the '
beneficiaries and members of the public to protect the interests
c of the public trust or whether they were airing only private and
personal grievances. The High Court took the view that though
there were certain personal reliefs claimed as evident from the
prayer portion, but that was not sufficient to hold that the suit
was not for protection of interests of public trust but to claim and
D enforce private or personal rights. It was held that the insistence
of law was only that the discretionary reliefs under Section 92
CPC shall not be granted when the plaintiffs have no genuine -'
interest or intention to protect the public right of the beneficiaries
but are only using the forum provided by Section 92 to air private
E and personal grievances. It was further held that there was prayer
to supplement the plaintiffs 1 to 3 and also 4th defendant in the
School Management Committee. The same cannot be
construed to be any prayer for enforcement of the personal
rights.
F 7. The learned Single Judge formulated certain procedures "' ..,
for grant of leave by the Court. It was also held that there would
be need for public notice under Order 1 Rule 8 CPC in a suit
under Section 92. It was finally concluded that though there were
certain inadequacies they did not vitiate the proceedings. The
G Civil Revision was accordingly dismissed.
8. Learned counsel for the appellant with reference to
several averments in the plaint submitted that though the High ,-
Court correctly formulated the issue that there is no bar on A' •
trustees instituting the suit in terms of Section 92 CPC; yet there
H
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 577
[DR. ARIJIT PASAYAT, J.]
>' has to be a pointed consideration as to whether they were A
ventilating a private or personal grievance or virdicating public
rights in respect of trust in representative character. But having
said so. it did not consider the true nature of the suit filed.
9. Referring to various averments it was pointed out that
even on a cursory analysis the position comes clear that the B
plaintiffs were highlighting personal grievances. It is pointed out
that plaintiff No.1 was a Vice Chairman, Plaintiff No.3 is the
~ >
father-in-law of plaintiff No.1 and most of the allegations of
alleged improper action revolved round close relatives of these
two plaintiffs. Reference to the senior teacher made is nobody c
else than the wife of plaintiff No.1. All the resolutions were
adopted by trustees. It is essentially an inter-trust dispute.··
10. The prayers (a), (b), (c) and (d) focus on defendants 2,
3 and 10 and prayer (e) which was deleted initially was for
D
removal of defendants 2, 3, 6, 9 and 10 and for suppleimenting
>• -- the School Management Committee with plaintiffs 1, 2, 3 and 4
and defendant No.4. Basically, the allegations are against
defendants 2, 3 and 4. ·
11. It was submitted that it is desirable that before fhe leave E
is granted in terms of Section 92 CPC the other side should be
heard. This should obviate the subsequent application for
revocation of grant of leave. All the allegations according to
learned counsel for the appellant are personal grievan~es.

~
12. Learned Single Judge overlooked the· fact that F
objections were taken by the governing council. Merely because
their objections or views did not find acceptance by majority,
that cannot be a ground to lay a suit under Section 92 CPC
questioning legitimate decisions taken by the majority. The Court
does not deal with administration of trusts. Only if the pre- G
conditions are satisfied then only leave can be granted as
provided in Section 92. There must be an element of dis-honest
-~
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. H
578 SUPREME COURT REPORTS [2008] 3 S.C.R.

..
A 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 1s not
remediless if the leave is not granted under Section 92.
B 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 to the ~
l
allegations in the written submissions. It is permissible to strike
down the portion of averment. Though the general principle may
c 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.
D
15. The parameters to be kept in view while dealing with
an application for grant of leave in terms of Section 92 CPC
have been dealt with by this Court in several decisions. In B. S.
- ' .:

Adityan and Ors. v. B. Ramachandran Adityan and Ors. (2004
(9) sec 720), it was inter alia held as follows:
E
"9. In this background, when a specific provision has been
made in the Code of Civil Procedure in Section 104(1 )(ffa)
allowing an appeal to be filed against an order refusing to
grant leave to file a suit, the appeal filed by the respondents
before the Division Bench was certainly competent to be :-.
F
considered by that Bench. In this case, on an earlier "
occasion, when one of the suits was filed under Section
92 CPC, when the founder had executed a deed of
appointment of trustees and certain interim orders were
passed in that suit, the said application was withdrawn
G
without obtaining leave under Order 23 Rule 1 on 19-9-
1978 inasmuch as the newly appointed trustees had
resigned their trusteeship and withdrew their application ~·
,r
under Section 92 CPC, the two suits CSs Nos. 352 and
353 of 1978 filed by the appellants were disposed of as
H
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 579
[DR. ARIJIT PASAYAT, J.]
~

having become infructuous. Later on another Application A
No. 165 of 1981 had been filed under Section 92 CPC for
leave to file a suit for appointing them as additional trustees
and for rendition of accounts. In that proceeding Application
No. 879 of 1991 was filed for permission of court to cross-
examine the applicants therein R. Kannan Adityan and R. B
Kathiresa Adityan in particular to prove the fact that it was

\
,., the father of those petitioners therein whD was supplying
all documents and materials and who was conducting the
proceedings. Application filed to cross-examine the
applicants was dismissed by the learned Single Judge.
On further appeal, the Division Bench held that it would be
c
in the interest of justice to permit the appellants to cross-
examine the said parties. The matter was carried to this
Court in Special Leave Petition No. 6040 of 1982. This
Court dismissed the said special leave petition noticing
D
that the cross-examination "will be confined to the question
;
- of sanction and principles governing the same", of
course, after noticing entire documents. Again, another
Application No. 4738 of 1982 was brought before the
court to dismiss Application No. 165 of 1981 under Order
11 Rule 21 CPC which was, however, dismissed by the E
learned Single Judge and the matter was carried in appeal
which was also dismissed by the Division Bench. That
matter was brought before this Court. This Court asked
the parties to file the appropriate affidavits in regard thereto
I"
and thereafter all papers were placed before the Court. F
However, this Court dismissed the special leave petition.
It is in this background the learned counsel submitted that
the Court ought to have examined the matter in all
necessary details before granting permission under
Section 92 CPC. In R.M. Narayana Chettiar case this G
Court considered in detail the history of the legislation
and whether court is required to give an opportunity of
•• "' being heard to the proposed defendants before granting
leave to institute a suit under Section 92 CPC and stated
the law on the matter. Although as a rule of caution, court H
580 SUPREME COURT REPORTS [2008] 3 S.C.R.
~

A should normally give notice to the defendants before
granting leave under the said section to institute a suit, the
court is not bound to do so. If a suit is instituted on the
basis of such leave, granted without notice to the
defendants, the suit would not thereby be rendered bad in
B law or non-maintainable. Grant of leave cannot be regarded
as defeating or even seriously prejudicing any right of the
proposed defendants because it is always open to them . I
to file an application for revocation of the leave which can
be considered on merits and according to law or even in
c the course of suit which may be established that the suit
does not fall within the scope of Section 92 CPC. In that
view of the matter, we do not think, there is any reason for
us to interfere with the order made by the High Court."
16. In R.M. Narayana ChettiarandAnr. v. N. Lakshmanan
D Chettiar and Ors. (1991 (1) sec 48), it was held as follows:
· "9. We may now discuss the main cases relied oil by the
~

'
learned counsel for the respective parties. Coming first to
the cases relied upon by learned counsel for the appellants,
we find that the first decision cited by him was the decision
E of this Court in Swami Parmatmanand Saraswati v. Ramji
Tripathi. In that case it was held that to see whether the
suit falls within the ambit of Section 92, only the allegations
in the plaint should be looked into in the first instance. But,
if, after the evidence is taken, it is found that the breach of
F 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 of fact or reason but is made only with a
view to bring the suit under the section then such a suit
must be dismissed. Learned counsel next drew our
G attention to the decision of this Court in Charan Singh v.
Darshan Singh. Section 92 of the Code before its
amendment in 1976 was applicable to the case. The court
cited with approval the observations of Mukherjea, J. (as
he then was), in Mahant Pragdasji Guru Bhagwandasji v.
-•
H 1 Patel lshwarlalbhai Narsibhai-which runs as follows: (SCR
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 581
[DR. ARIJIT PASAYAT, J.]

p. 517) A
"A suit under Section 92, Civil Procedure Code, is a
suit of a special nature which pre-supposes the
existence of a public trust of a religious or charitable
character. Such suit can proceed only on the
allegation that there is a breach of such trust or that B
directions of the court are necessary.... It is only when
these conditions are fulfilled that the suit has got to
be brought in conformity with the provision of Section
92, Civil Procedure Code ... "
c
10. Neither of the aforesaid decisions of this Court deal
with the question as to whether, before granting leave to
institute a suit under Section 92, Advocate General, or
later the court, was required to give an opportunity to the
proposed defendants to show cause why leave should not D
be granted. What learned counsel forthe appellants urged,
however, was that these decisions show that at the time
when the Advocate General or the court is required to
consider whether to grant leave to institute a suit as
contemplated under Section 92, it is only the averments in
the plaint which have to be examined and hence, the E
presence of the defendant is not necessary. We may now
consider the High Court decisions relied on by the learned
counsel for the appellants.
xx xx xx F
16. As far as the decisions of this Court which have been
pointed out to us are concerned, the question as to whether
before granting leave to institute a suit under Section 92
of the Code, the court is required to give an opportunity of
being heard to the proposed defendants did not arise for G
determination at all in those cases. As far as the High
.... Courts are concerned, they have taken different views on
this question. The legislative history of Section 92 of the
Code indicates that one of the objects which led to the
enactment of the said section was to enable two or more H
582 SUPREME COURT REPORTS [2008] 3 S.C.R
~

A persons interested in any trust created for a public purpose
of a charitable or religious nature should be enabled to file
a suit for the reliefs set out in the said section without
having to join all the beneficiaries since it would be highly
inconvenient and impracticable for all the beneficiaries to
B join in the suit; hence any two or more of them were given
the right to institute a suit for the reliefs mentioned in the
said Section 92 of the Code. However, it was considered ~
l
desirable to prevent a public trust from being harassed or
put to legal expenses by reckless or frivolous suits being
c brought against the trustees and hence, a provision was
made for leave of the court having to be obtained before
the suit is instituted.
17. A plain reading of Section 92 of the Code indicates
that leave of the court is a pre-condition or a condition
D precedent for the institution of a suit against a public trust
for the reliefs set out in the said section; unless all the . ..
beneficiaries join in instituting the suit, if such a suit is
instituted without leave, it would not be maintainable at all.
Having in mind the objectives underlying Section 92 and
E the language thereof, it appears to us that, as a rule of
caution, the court should normally, unless it is impracticable
or inconvenient to do so, give a notice to the proposed
defendants before granting leave under Section 92 to
institute a suit. The defendants could bring to the notice of
F the court for instance that the allegations made in the plaint
are frivolous or reckless. Apart from this, they could, in a
given case, point out that the persons who are applying
for leave under Section 92 are doing so merely with a
view to harass the trust or have such antecedents that it
would be undesirable to grant leave to such persons. The
G
desirability of such notice being given to the defendants,
however, cannot be regarded as a statutory requirement
to be complied with before leave under Section 92 can be
granted as that would lead to unnecessary delay and, in
a given case, cause considerable loss to the public trust.
H
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 583
·[DR. ARIJIT PASAYAT, J.]
. "--.....
Such a construction of the provisions of Section 92 of the A
Code would render it difficult for the beneficiaries of a
public trust to obtain urgent interim orders from the court
even though the circumstances might warrant such relief
being granted. Keeping in mind these considerations, in
our opinion, although, as a rule of caution, court should B
normally give notice to the defendants before granting
'« ).
leave under the said section to institute a suit, the court is
not bound to do so. If a suit is instituted on the basis of
such leave, granted without notice to the defendants, the
suit would not thereby be rendered bad in law or non- c
maintainable. The grant of leave cannot be regarded as
defeating or even seriously prejudicing any right of the
proposed defendants because it is always open to them
to file an application for revocation of the leave which can
be considered on merits and according to law.
D
·t - Xx xx
'
xx
19. In the result, the appeals are allowed as afore-stated.
The impugned judgment of the High Court is set aside.
The trial court is directed to dispose of the application for
revocation of leave on merits and in accordance with law." E
17. In Swami Paramatmanand Saraswati and Anr. v. Ramji
Tripathi and Anr. (1974 (2) SCC 695), it was held as follows:
"5. The main allegations in the plaint were that Brahmanand
did not execute the Will while he was in a sound disposing F
state of mind, that Respondent 1 had not the requisite
learning in Sanskrit and the Vedas and, therefore, he was
not qualified to be nominated as successor to the Headship
of the Math, that he came into possession of the Math
properties and has committed breach of trust by applying G
for grant of succession certificate and other acts, that
Krishnabodhashram was duly installed as· the
Shankaracharya of the Math on June 25, 1953 and that
direction of the Court was necessary for the administration
of the Trust properties. The plaintiffs prayed for the removal H
584 SUPREME COURT REPORTS [2008] 3 S.C.R.

... ~

A of Respondent 1 from the Headship of the Math, a
declaration that Krishnabodhashram was the duly installed
Head of the Math (!nd to appoint him as the Head, and in
the alternative, to appoint any other competent person as
the Head of the Math. They further prayed for vesting of
B the properties of the Jyotish Math in the new Head and for
rendition of accounts by Respondent 1, etc., and to restrain
him from prosecuting the application for succession "' ~

certificate and also the mutation proceedings.
xx xx xx
c 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
D
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
E 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
F 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 Chettyv. VM. Govinda
Chetty, Tirumalai Devasthanams v. Udiavar Krishnayya
G Shanbhaga, Sugra Bibi v. Hazi Kummu Mia and Mui/a:
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
H claiming the reliefs specified in the section tha't can be
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 585
. ~
-, [DR. ARIJIT PASAYAT, J.]
brought under the section but only the suits which, besides A
claiming any of the reliefs, are brought by individuals as
representatives of the public for vindication of public rights,
and in deciding whether a suit falls within Section 92 the
court must go beyond the reliefs and have regard to the
capacity in which the plaintiffs are suing and to the purpose B
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 c
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
D

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 E
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 F
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
G
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
H
586 SUPREME COURT REPORTS [2008] 3 S.C.R.

~

A suit and not the reliefs that should decide whether it is one
for vindicating the right of the public of the individual right
of the plaintiffs or third persons.
xx xx xx

B 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.O.B. Bagga Singh v. Gurnam Singh,
Sohan Singh v. Achhar Singh and Radha Krishna v.
c Lachhmi Narain. 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
D
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."
18. Prior to legislative change made by the Code of Civil
E 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
F 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
G
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. In the suit against public trusts, if on analysis of the
averments contained in the plaint it transpires that the primary
H
VIDYODAYA TRUST v. MOHAN PRASAD R & ORS. 587
[DR. ARIJIT PASAYAT, J.]
., ·-,
object behind the suit was the vindication of individual or A
personal rights of some persons an action under the provision
does not lie. As noted in Swami Parmatmanand's case {supra)
a suit under Section 92 CPC is a suit of special nature, which
pre-supposes the existence of a public trust of religious or
charitable character. When the plaintiffs do not sue to vindicate B
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 wl1om they are interested, Section 92
has no application.
19. In Swamy Parmatmanand's case {supra) it was held c
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 D
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.
20. In Chettiar's case {supra) it was held that normally notice
should be given before deciding the question as to whether leave E
is to be granted.
21. If in a given case notice has not been given and leave
has been granted, it is open to the Court to deal with an
application for revocation and pass necessary orders. F
22. 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 G
be sufficient to taint the Board's decision. As was observed by
this Court in Swamy Parmatmanand's case, {supra) 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 H
588 SUPREME COURT REPORTS [2008] 3 S.C.R.

,.
A 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.
B 23. On a close reading of the plaint averments, it is clear
that though the color 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.

c 24. In Sugra Bibi v. Hazi Kummu Mia (AIR 1969 SC 884)
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
D
and not merely for vindication or the individual or personal rights
of the plaintiffs.
25. To put it differently, it is not every suit claiming reliefs
- -
specified in Section 92 that can be brought under the Section;
E 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
F 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. In that view of the matter the High Court was
certainly wrong in holding that the grant of leave was legal and
proper. The impugned order of the High Court is set aside. The
G
appeal is allowed but without any order as to costs.
S.K.S. Appeal allowed.
,

H