Filing of suit u/s 91 Cr.P.C. for rendition of accounts.

The plaintiffs are the appellants.. They filed the suit out of which this second appeal arises on behalf of all persons interested in a fund said to be a common fund of the village for directing the defendant to render an account of the amounts entrusted to him. The allegations, material for the purpose of this enquiry, are as follows:

The plaintiffs and defendant are residents of the village named Duvva. It has been the practice in the village to have a common fund of the village for the use and convenience of the villagers and to keep the same in the custody of somebody in the village selected by a majority of the villagers assembled and to use the fund for such purpose as might be determined by the majority. All the villagers have equal rights to the said common village fund. All the villagers have got a right to demand in what manner and to what extent the said amount is being utilized. The person in charge of the fund is bound to render an account for the use made of it.

Again in paragraph 5 it is alleged that this fund was kept with the defendant for the common purpose of the community.

One of the defences to the suit was that section 92 of the Civil Procedure Code was a bar. The Courts below dismissed the suit upholding this defence as the procedure prescribed in section 92, Civil Procedure Code, has not been followed. The plaintiffs who are aggrieved by this decision have preferred this second appeal.

In support of this appeal Mr. Parthasarathy contended that inasmuch as the purposes for which the common fund should be utilised had to be determined by the villagers and that was not so done, it could not be said that the fund was impressed with the trust of a public charitable nature and would not therefore fall under section 92, Civil Procedure Code. I do not think I can give effect to this contention. In Halsbury’s Laws of England, 2nd Edition, Hailsham Edition, Volume 4, at page 109 "Charity" is described as follows:

"Charity in its legal sense comprises four principal divisions: trusts for the relief of poverty, trusts for the advancement of education, trusts for the advancement of religion, and trusts for other purposes beneficial to the community not falling under any of the preceding heads. Within one of these divisions all charity to be administered by the Court must fall, though every object which might be brought within one of them is not necessarily a charity, for it must, further, be of a public nature and capable of administration by the Court."

At page 126 the learned author says in paragraph 167:

"The benefit of a charitable trust of this class need not extend to the whole community, provided that the class to be benefited is substantial enough to give the trust a public character."

It is pointed out by the author in paragraph 168 that in deciding whether a particular gift is charitable as being beneficial to the community, the main point to be considered is the purpose to which it would be put.

In Mayne on Hindu Law and Usage, after extracting the passage in paragraph 145 of Halsbury’s Laws of England, Volume 4, the learned author says:

"The Courts in India have, in relation to Hindu Wills" and gifts adopted the technical meaning of charitable trusts and charitable purposes which the Courts in England have placed upon the term ‘charity’ in the statute of Elizabeth. All purposes which are charitable according to English Law will be charitable under Hindu Law. But, in addition, under the head of advancement of religion, there are other charitable objects in Hindu Law which will not be charitable according to English Law."

This passage is quoted, with approval by the Federal Court in Manikasundara Bhattar v. R.S. Nayudu1. It was observed by the learned Judges:

"In our judgment therefore the word "charities" is an appropriate generic term of wide scope and meaning apt to include all public, secular, charitable and religious trusts and institutions recognised as such by British Indian Law."

It is clear from wh