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High Court Of Calcutta
Bankim Chandra Ray, N. G. Chaudhuri
BOARD OF GOVERNORS ST.THOMAS SCHOOL - Appellant
Versus
A.K.GEORGE - Respondent
Appeal 135 Of 1982
Decided On : 03/27/1984
ST. THOMAS SCHOOL ACT 1923 - SECTION 2, 4, 11 - APPEAL UNDER CLAUSE 15 OF LETTERS PATENT IS MAINTAINABLE - THE ST. THOMAS SCHOOL IS NOT A PUBLIC CHARITABLE TRUST BUT GOVERNED BY THE PROVISIONS OF THE ST. THOMAS' SCHOOL ACT, 1923 - THE PLAINTIFFS FAILED TO PROVE THEIR INTEREST IN THE TRUST - EX PARTE LEAVE GRANTED UNDER SECTION 92 OF THE CIVIL P. C. IS LIABLE TO BE REVOKED AND WITHDRAWN - SUIT IS LIABLE TO BE DISMISSED.
Fact of the Case:
Plaintiffs filed a suit under Section 92 of the Civil P. C. alleging that St. Thomas School was a public charitable trust and the defendants were Trustees who were guilty of breach of trust. The Board of Governors was reconstituted in accordance with the St. Thomas School Act 1923, but its term had expired. Plaintiffs claimed to have an interest in the trust as worshipping and subscribing members of the vestry of St. Paul's Cathedral, Calcutta, and as a teacher in an Anglo Indian School. The defendants applied for revocation of leave granted under Section 92, rejection of the plaint, and dismissal of the suit.
Finding of the Court:
The court held that the appeal under Clause 15 of Letters Patent was maintainable as the Letters Patent of 1865 was still in force after the Constitution. The court found that St. Thomas School was not a public charitable trust but was governed by the provisions of the St. Thomas School Act 1923. The court also found that the plaintiffs failed to prove their interest in the trust and that the ex parte leave granted under Section 92 of the Civil P. C. was liable to be revoked and withdrawn, and the suit was liable to be dismissed.
Issues: 1. Whether the appeal under Clause 15 of Letters Patent was maintainable? 2. Whether St. Thomas School was a public charitable trust? 3. Whether the plaintiffs had an interest in the trust? 4. Whether the ex parte leave granted under Section 92 of the Civil P. C. was liable to be revoked and withdrawn?
Ratio Decidendi: 1. The court held that the appeal under Clause 15 of Letters Patent was maintainable as the Letters Patent of 1865 was still in force after the Constitution, following the precedents set in Chunilal Basu v. The Hon'ble the Chief Justice, High Court at Calcutta and Sukla Choudhury v. Miss Manjolyn Tweedie. 2. The court found that St. Thomas School was not a public charitable trust but was governed by the provisions of the St. Thomas School Act 1923, as Section 11 of the Act did not expressly or impliedly create a charitable trust of a public nature. 3. The court found that the plaintiffs failed to prove their interest in the trust, as they had filed the suit in their individual capacities and not in a representative capacity on behalf of persons interested in the trust. 4. The court held that the ex parte leave granted under Section 92 of the Civil P. C. was liable to be revoked and withdrawn, as the plaintiffs had failed to establish their interest in the trust and the suit was not competent.
Final Decision: The appeal was allowed, the ex parte leave granted on 19th January 1982 was rejected and revoked, and the suit was dismissed. There was no order as to costs.
( 1 ) THIS appeal is under Clause 15 of Letters Patent and it is at the instance of Defendants/respondents against an order dismissing the application filed by the defendants for revocation of leave granted under Section 92 of the Civil P. C. as well as for rejecting the plaint and alternatively for dismissal of the Suit No. 26 of 1981.
( 2 ) THE above suit was filed by the plain-tiffs on 19th Jan. , 1982 in the Original Side of this Court stating inter alia that St. Thomas School was a public charitable trust and the defendants were Trustees of the said trust. It was alleged that the defendants were guilty of breach of trust. The Board of Governors of the school was reconstituted long before in accordance with the provisions of Section 2 of the St. Thomas School Act 1923 and the term of the Board already expired. It has been stated further that both the plaintiffs are worshipping and subscribing members of the vestry St. Paul's Cathedral, Calcutta and as such under the provisions of the said Act they have right to nominate Governors of the Board of Governors of the said school. Moreover the petitioner No. 2 is also a Teacher in Calcutta Girls High School which is an Anglo Indian School and as such they are interested in the Trust. As Board of Governors were not properly constituted and the trust property arc not properly managed by the Trust i. e. Board of Governors of the said school and there has been a breach of the terms and conditions of the Trust, the instant suit has been brought praying for leave under Section 92 of the Civil P. C. and also for other reliefs as provided under the said section, to institute the suit as well as for removal of the Trustees, appointing new trustees, for directing the trustees who have been removed to deliver possession of the trust property and also for settling a scheme for administration of the Trust properties. The leave was granted ex parte under. Section 92 of the Civil P. C. on hearing the plaintiff on 19th Jan. . 1982. The defendants/respondents filed an application for revocation of the leave granted and for rejection of plaint subsequently.
( 3 ) THIS application was dismissed by C. K. Banerjee, J. on the 7th Apr. , 1982 holding inter alia that though it had not been specifically pleaded, which immovable properties were situated within the Original Jurisdiction of this Court was yet it could not be stated that there no pleading at all so as to non-suit the plaintiffs. It was held that the suit was maintainable under Section 92 of the Civil P. C. It was also held that the suit was instituted by the two persons claiming to have interest in the trust. The question whether these plaintiffs have any such interest or not cannot be gone into in this application and the same has to be decided in the suit. It has been further held that the learned Judge has taken a prima facie, view, of the matter solely for the purpose of the application and the contention raised in the application would be properly gone into on proper materials at the time of hearing the suit. The application for revocation of the leave granted on 19th Jan. , 1982, was rejected.
( 4 ) AGAINST the aforesaid judgment and order the instant appeal has been preferred. Mr Somnath Chatterjee with Mr. P. K. Chatterjee, learned Advocates appearing on behalf of the appellants have contended in the first place that the leave that was granted under Section 92 of the Civil P. C, should be revoked inasmuch as St. Thomas School is a statutory body constituted by St. Thomas School Act 1923. It is not a public charitable trust at all. It has been further submitted by Mr. Chatterjee that the Board of Governors was lastly reconstituted on 7th Nov. , 1981 and the same was duly gazetted by the State Government. Under Section 4 of the said Act the life of the Board of Governors is for a period of 3 years from the date of publication of the names in the official gazette. It has been submitted that t
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