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HIGH COURT OF CALCUTTA
P. C. Mallick
SARAT K. MITRA - Appellant
Versus
HEM CH. DEY - Respondent
Suit 2864 Of 1953
Decided On : FEBRUARY 08, 1960
TRUST - Public and Private - Section 92 of the Code of Civil Procedure - Applicability - Suit for removal of trustees, framing of scheme, and accounts - Whether maintainable - Joinder of lessee as a party - Whether necessary.
Fact of the Case:
A suit was filed under Section 92 of the Code of Civil Procedure (CPC) by a representative of the Hindu community for self and other members interested in a trust estate created by a will. The will directed the executors and trustees to establish and consecrate an image of Sri Sri Annapurna, establish a charitable institution for indigent Hindus, and provide for the worship of the image and expenses of the helpless Hindus. The plaintiff alleged mismanagement and breach of trust by the trustees and sought their removal, framing of a scheme, accounts, and other reliefs, including a declaration that the lease granted by the trustees to a third party was void. The trustees and the lessee contested the suit, raising various objections, including the maintainability of the suit under Section 92 of the CPC and the joinder of the lessee as a party.
Finding of the Court:
1. The trust created by the will was both private and public, with the public charitable trust being independent of the private portion and having a direct and independent interest for the indigent Hindus. 2. The suit satisfied the conditions for applicability of Section 92 of the CPC as it related to a public charitable trust, alleged breach of trust, and sought reliefs permitted under the section. 3. However, some of the reliefs claimed, such as declaration and injunction regarding the validity of the trustees' appointment and reliefs related to the lease, were not permissible under Section 92 of the CPC. 4. The sanction of the Advocate General was rightly refused as most of the reliefs in the plaint could not be claimed in a suit under Section 92 of the CPC. 5. The suit could not be dismissed as a whole merely because some of the reliefs could not be obtained under Section 92 of the CPC. The case concerning the lease could be determined in a suit instituted in the ordinary way. 6. The lessee was a necessary and important party in the suit for determination of disputes concerning the lease.
Issues: 1. Whether the suit was maintainable under Section 92 of the CPC. 2. Whether the lessee was properly joined as a defendant.
Ratio Decidendi: 1. Section 92 of the CPC applies to suits relating to a trust for a public purpose of a charitable or religious nature, where there is an alleged breach of trust or the direction of the court is deemed necessary for the administration of the trust, and the relief claimed is one or other of the reliefs mentioned in the section. 2. The trust created by the will was both private and public, with the public charitable trust being independent of the private portion and having a direct and independent interest for the indigent Hindus. 3. The suit satisfied the conditions for applicability of Section 92 of the CPC as it related to a public charitable trust, alleged breach of trust, and sought reliefs permitted under the section. 4. However, some of the reliefs claimed, such as declaration and injunction regarding the validity of the trustees' appointment and reliefs related to the lease, were not permissible under Section 92 of the CPC. 5. The lessee was a necessary and important party in the suit for determination of disputes concerning the lease.
Final Decision: The court held that the suit was maintainable under Section 92 of the CPC for the reliefs permitted under the section, but the reliefs related to the lease could be determined in a suit instituted in the ordinary way. The lessee was a necessary party in the suit concerning the lease. The issues were answered accordingly, and the suit was allowed to proceed.
( 1 ) THIS litigation relates to the trust created by one Akshoy Kumar Ghose now dead (hereinafter referred to as the settlor) by his will dated 21-5-1948. The executors and trustees were directed by the instrument to pay to the wife of the settlor during her natural life an allowance of Rs. 50/ per month for her support and maintenance. They were further directed to establish and consecrate an image of Sri Sri Annapurna and to establish a charitable institution to be named "sreenath Sebasram" for indigent Hindus in case the settlor failed to do so in his lifetime. The executors and trustees were further directed to "give, grant and dedicate" the whole of the estate for the worship of the image and for meeting the expenses of the helpless Hindus subject to the allowance payable to the wife of the settlor. The instrument further lays down: "and in such grant my executors and trustees shall provide for with the power and authority regulating the expenses hereinafter directed according to the income of the properties and circumstances attending the change in the market. 1. Daily worship of the said image of Sree Sree Annapurna Debi at a cost not exceeding Rs. 40/ per month,
( 2 ) PERIODICAL worship of the said Annapurna Debi on Mohastomy day, Sivaratri, Kali Pujan and Annapurna Puja festival at a cost of not exceeding Rs. 200/ in all each year.
( 3 ) PERFORMANCE of anniversary sradh of my father, mother and myself and my wife (after her death) at any reasonable cost as my executors and trustees shall think fit but not exceeding Rs. 200/- a year.
( 4 ) FEEDING the helpless Hindus daily at a cost as the surplus income of my estate will admit I hereby declare that it is my intention and desire that in the administration of the trust for feeding the poor and indigent Hindus my executors and trustees should give preference to the indigent and poor Kayesthas of both sexes. "2. The settlor's wife was named as the first shebait and after her death and in case of her incapacity the trustees for the tune being were directed to exercise the function of shebait jointly. 3. Sureswari Dassi the wife of the settlor, Sitanath Bose and the settlor's nephew Sisir Kumar Bose were named as trustees. Provisions are made for the appointment of new trustees in case of death or retirement of the original trustees. It is provided that in no case the number of trustees should be less than two. In case no probate was obtained and/or appointment of new trustees made in accordance with the provisions of the will, the Official Trustee was directed to be the executor and trustee and the heirs of the settlor for the time being were to be the shebaits who would perform only the religious part of the trust and to whom payments would be made by the Official Trustee in terms of the will for; the expenses in connection with the religious part of the trust only. 4. The settlor died shortly after executing the will. The settlor's widow died during the pendency of the testamentary proceedings in which probate was granted to Sitanath and Sisir, the remaining executors.
( 5 ) THIS is a representative suit instituted by the plaintiff for self and other members of the Hindu Community interested in the trust estate The defendants Nos. 1 and 2 Hem Chandra Day and Protap Narayan Bose are purporting to act as trustees. The defendant No. 3 Ashutosh Coomar is the lessee of one of the trust estates. The defendant No, 4 is the deity. Defendants Nos. 5 and 6 Basanta Kumar Mitra and Hemanta Kumar Mitra are alleged to be along with the plaintiff the heirs of the settlor at the time of the institution of the suit. During the pendency of the suit the original defendants Hem Chandra Dey and Basanta Kumar Mitra died and in their place and stead have been added persons alleged to be their heirs and legal representatives.
( 6 ) IT is pleaded in the plaint that the purported appointment of new trustees in place of the original trustees are not in accordance with the p
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