2011 Supreme(Kar) 577

High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. KUMAR & THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
C.R. Shivananda & Another
Versus
H.C. Gurusiddappa & Others
REGULAR FIRST APPEAL No. 667 of 2001 C/W REGULAR FIRST APPEAL No. 688 of 2001
Decided on : 30-09-2011

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Public Charities - Obligation of a person incharge of trust properties dedicated to religious or charitable purposes - Held, Indian Trust Act, 1882 defines the word ’trust’. It means the 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. The word "trust" has been used in Section 92 in a general and not in a restrictive sense. It connotes and obligation or duty attaching to a person in charge of properties dedicated to religious or charitable purposes which could be enforced either in law or equity. It is akin to that of a trustee in English law without any legal estate in the property which the English trustee has got. The trust need not be express, it may be constructive as well. Section refers to both express or constructive trust. Further Held, A constructive trust has a well known meaning in English law and its essential characteristic is that it arises by operation of law independently of the act of parties. In other words, a constructive trust arises not by act of parties but by operation of law. The distinction between a public trust and a private trust is, broadly speaking, in a public trust the beneficiaries of the trust are the people in general or some section of the people, while in the case of a private trust, the beneficiaries are an ascertained body of persons. The Indian Trusts Act as clear by its Preamble and contents is applicable only to private trusts and not to public trusts. The essential distinction between a public and a private trust is, that in the former the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained, but in the latter the beneficial interest must be vested in an uncertain and fluctuating body or persons-either the public at large or some considerable portion of it answering a particular description.

       CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Applicability - Held, Section 92 applies only when the religious or charitable trust is for a public purpose. In order to find out whether a trust is a public trust or a charitable or religious nature contemplated by Section 92 of CPC, the Court must look to the real substance of the trust and the primary intention of the creator of the trust. The suit contemplated by Section 92 proceeds on the allegation of breach of public trust or is founded on the necessity of having direction from the Court regarding the administration of such trust. - Further Held, The question whether a particular mutt forms a public religious endowment or is a private institution must be judged in the light of the evidence in each case. The origin of the mutt if it is known, its antiquity, the nature of the gifts of property made to it, the way how these have been treated by its head, the long established usage and custom of the institution, all these throw valuable light on the question whether the mutt is a public religious endowment or a private institution. All matters relating to the administration of a Mutt are also intimately connected with the rights and duties of a Mohunt. The Matadapthi is the head of the institution. He manages the property of the institution. He administers its affairs and the whole assets are vested in him as the owner thereof in trust for the institution itself. The endowed property vests in the Mutt itself as a juristic person and not in the Mohunt or superior. The position, indeed, would be different if a formal trust deed is executed. In such circumstances, the legal ownership would vest in the trustees, and the superior or Mohunt might be one of the trustees or even the sole trustee if the donor so chooses. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs. It may constitute, atleast a section of the public. Mutts, in general, consequently, are public trusts.

       CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Maintainability of suit under - Held, To attract the operation of Section 92, the suit must be of a certain character and pray for certain reliefs. In the first place, the suit should relate to a trust created for public purposes of a charitable or religious nature. In the second place, it must proceed on an allegation either of breach of trust or of the necessity of having directions from the Court for the administration of trust. In the third place, the reliefs claimed must be one or other of the reliefs specified in the Section and lastly, the suit must be one brought in a representative capacity in the interests of the public or of the trust itself and not for vindicating the private rights of the plaintiff. If these conditions are present, the suit can be brought in conformity with the provisions of Section 92 of the CPC. Further, A suit under Section 92 CPC is a suit of a special nature for the protection of Public rights in the Public Trusts and charities. It presupposes the existence of a public trust of religious or charitable character. A suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92, CPC. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section, if the plaintiff is held entitled to it. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public rights. A suit under Section 92 of CPC is thus a representative suit and as such binds not only the parties named in the suit-title but all those who are interested in the trust. In deciding whether a suit falls within Section 92 of CPC the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. It is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the ambit of Section 92.

       CODE OF CIVIL PROCEDURE, 1908 - Section 92: [N. Kumar & A.N. Venugopala Gowda, JJ] Vindicating the right of the public under - Pleadings - Held, The Courts have to be careful to eliminate the possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of the interests of the public trusts. First and the foremost requirement for an application under Section 92 is, the plaintiffs should bring the suit to vindicate the right of the public. In the suit, if they are seeking a declaration of their individual or personal rights or individual or personal rights of any other person or persons in whom they are interested, then the suit would be out side the scope of Section 92 of CPC. In order to find out whether the plaintiff, in such a suit, is vindicating the right of the public or his personal right, what is to be seen is, allegations in the plaint. In the first instance, if the allegations in the plaint do not indicate that the plaintiffs have approached the Court to vindicate the rights of the public, on the analogy of Order 7 Rule 11 of CPC, the plaint can be rejected on the ground that the plaint does not disclose a cause of action. Further, However, if it is not rejected and enquiry is conducted, evidence is taken and thereafter it is found that breach of trust alleged has not been made out and that the prayer for direction of the Court is vague and is not based on any solid foundation in facts or reason, but is made only with a view to bring the suit under the Section, then the suit purported to be brought under Section 92 must be dismissed. A suit whose primary object or purpose is to remedy, the infringement of an individual right or to vindicate a private right does not fall under the Section.

       CODE OF CIVIL PROCEDURE, 1908 - Section 96: [N. Kumar & A.N. Venugopala Gowda, JJ] Regular First Appeal - Plaintiffs suit for decree against the defendants, vesting the schedule properties in the first defendant by appointing him as the sole trustee of the properties - Decree of Suit - Appealed against by the defendants 2, 3 and 5, 6 - Held, A perusal of the prayer column makes it clear that the plaintiffs do not want any scheme to be settled for the proper management of the schedule properties. They also do not want appointment of persons belonging to Veerashaiva Community as trustees and for vesting of the schedule properties in such trustees. Their prayer is specific that these properties should vest with the first defendant, i.e., the Swamiji of Kodi Mutt Maha Samsthana and he should be appointed as the trustee. In the event, he does not accept the trusteeship, then it is the plaintiffs who should be preferred for appointment. The Court is given the option to appoint some competent person other than the plaintiffs. On the face of it, it is obvious that the suit is not filed representing the interest of the Veerashaiva Community or Lingayath Community, people of Chickmagalur District. The main object is to see that the schedule properties vest with the first defendant or his Mutt and he or the plaintiffs are appointed as trustees for management of the schedule properties. - On Facts, Held, In the facts of the case, no case for issuing direction for administration of these properties is made out, for the time being. If and when occasion arises for such direction or formulating a scheme, it is always open to the persons who are really interested in the Community to approach the Court for such scheme being formulated. The schedule properties earlier which were Mutts constitute a constructive trusts and it is a public, charitable and religious trust. Defendants-2 and 3 are the constructive trustees of the said trust. There is no breach of trust as alleged. Therefore, no case for removal of defendants-2 and 3, as trustees, would arise. Consequently, no case is made out for issue of direction for the administration of the trust properties. The suit is not filed to vindicate the rights of the public. It is filed to vindicate the private rights. Therefore, the suit filed under Section 92 of Code of Civil Procedure is not maintainable.