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SUPREME COURT OF INDIA
Pinaki Chandra Ghose, Ashok Bhushan, JJ.
Swami Shivshankargiri Chella Swami & Anr. – Appellant(s)
Versus
Satya Gyan Niketan & Anr. – Respondent(s)
CIVIL APPEAL NO. 3166 OF 2017 (Arising out of SLP(C) No.34719 of 2011)
Decided On : 23-02-2017
(b) Code of Civil Procedure, 1908 – Section 92 – Instantly property transferred to respondent no, 2 for rendering its nature to be a trust – Permission sought only to institute a suit alleging the Sabha to be acting as a trust – Held, respondent no. 2 is a trust – Section 3, Trusts Act, 1882 – District Judge rightly permitting appellants to institute a suit on this count. (Para 13, 18)
(1980) 2 SCC 31; (1979) 4 SCC 602; (1972) 1 SCC 115; (1991) 1 SCC 48; (2004) 9 SCC 720 – Relied upon
1992 (2) CurCC 429; [1969] 3 SCR 83: 1940 PC (10) – Referred
(c) Code of Civil Procedure, 1908 – Section 92 – Annexing the plaint with application seeking leave of the court for instituting suit mandatory – Maintainability of application u/s 92 can be determined only on averments in the plaint – Instantly pliant not annexed – Application not maintainable. (Para 19, 21)
(1991) 1 SCC 48 – Relied upon
Facts of the case:
Interpretation of section 115 and section 92 of CPC is involved in this case.
Finding of the Court:
High Court erred in allowing appellants to file suit.
Result: Appeal disposed of.
JUDGMENT
Pinaki Chandra Ghose, J.
Leave granted.
2. This appeal, by special leave, has been filed by the present appellants against the judgment and order dated August 1st, 2011 passed by the High Court of Uttarakhand at Nainital in Civil Revision No.69 of 2008, whereby the revision petition filed by the respondents herein was allowed and consequently the application filed by the appellants under Section 92 of the Code of Civil Procedure (in short ‘CPC’) for obtaining permission to institute a suit was rejected.
3. The question which comes up for consideration of this Court in the present matter is whether the High Court, on the basis of analysis of the facts and circumstances of the case and findings of the Court below, while exercising its jurisdiction under Section 115 of CPC, was justified in setting aside the order granting permission to initiate suit.
4. The facts of the case succinctly stated are that in the year 1936, one Sri Swami Satya Dev purchased some land and constructed a building thereon. Thereafter on 30.11.1940, he waqfed (gifted) the disputed property to Respondent No.2, vide registered deed, with the express condition that Respondent No.2 will not have a right to mortgage or right of sale of the property. The property was waqfed for the development and publicity of the `Hindi Language' in western India and to establish a centre for publicity of Hindi. There was also a recital in the deed to establish a library and to start a `Bhyakhan Mala' etc. and the property was to be managed by a sub-samiti constituted by respondent No.2.
5. It appears that objective of transferring the property was to achieve a specific purpose i.e., publicize and develop the Hindi Language. When it was felt that respondent No.2 was not taking any interest in achieving the purpose for which the property was dedicated, the appellants desired to initiate civil proceedings against the respondent. One Sri Mukund Ram and Sri Krit Ram filed Application No.23/2004 under Section 92 of CPC and the appellants herein filed Application No.07/2006 under the same provision, respectively, seeking permission to file a suit against the respondents herein in connection with the disputed property. Since same relief was sought in both the petitions, both applications were consolidated and Misc. Case No.23/2004 was made the leading case. The learned District & Sessions Judge vide his order dated 12.11.2008 observing that the word "trust" is to be liberally construed, and in a sense as favourable as possible to the assumptions of jurisdiction by a Court under Section 92, allowed both the applications and permitted the appellants to file suit under Section 92 of CPC. The learned District & Sessions Judge observed that the object of dedication of the property shall decide the nature of it being considered a trust. Relevant part of the order is reproduced as follows:
"Hence perusal of the deed reveals the purpose to waqf the property was charitable and for the benefit of public at large. Hence prima facie it appears that a constructive trust was created by Swami Satya Dev by gifting the property to O.P. No.2, in which all the objects of the waqf and the management of property was given."
In the later part of the order it was observed that:
"Having gone through the entire evidence on record, I am of the view that prima facie it appears that property in suit was waqfted to the O.P. No.2 for a particular object and purpose i.e. publicity and development of Hindi. The property is to be managed by O.P. No.2 as per directions of Swami Satya Dev - recitals of the deed prima facie proves that Sri Satya Dev created a constructive trust by gifting the property to O.P. No.2 has not become exclusive owner of the same, because it was gifted with conditions i.e. O.P. No.2 has no right to sale or mortgage the property.
So far as this fact is concerned that O.P. No.2 is the registered society under the Indian Registration Act, 1960, does not affect the maintainability of the suit as h
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