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2012 (4) CTC 89
High Court of Judicature at Madras
V. PERIYA KARUPPIAH
Rani Thaiyal Nayagi Ammal Choultry at Thirukazhukundram Represented by its Trustees
Versus
S. Venkatesan & Others
C.R.P.No.2626 of 2010
Decided on : 03-05-2012
Section 92 CPC - Revocation of Leave - [Trust Property] - [Section 92(1)(a to h)] - The court discussed the nature of the trust and the reliefs sought by the plaintiffs, concluding that the suit did not vindicate public rights and therefore was not attracted by the provisions of Section 92 CPC. The lower court's decision to revoke the leave granted under Section 92 CPC was confirmed.
Fact of the Case:
The plaintiffs sought to declare themselves as trustees of a choultry trust and recover the trust property. The defendants contested the suit, arguing that the trust was private and the reliefs sought did not fall under Section 92 CPC.
Finding of the Court:
The court found that the suit did not vindicate public rights and the reliefs sought were for personal interests, not covered by Section 92 CPC.
Issues: The main issue was whether the suit fell under Section 92 CPC, and whether the trust was public or private in nature.
Ratio Decidendi: The court held that for a suit to fall under Section 92 CPC, it must vindicate public rights, and the reliefs sought must be for the benefit of the public trust. The nature of the trust and the reliefs sought by the plaintiffs were crucial in determining the applicability of Section 92 CPC.
Final Decision: The court dismissed the Civil Revision Petition, confirming the lower court's decision to revoke the leave granted under Section 92 CPC.
1. This revision is directed against the orders passed by the lower Court in I.A.No.791 of 2008 in O.S.No.267 of 2008 dated 29.07.2009 in revoking the leave granted to sue under Section 92 CPC as per order in I.A.No.608 of 2008 on 18.09.2008.
2. The Revision Petitioners were the respondents and the respondents herein were the petitioners in I.A.No.791 of 2008 in O.S.No.267 of 2008.
3. The brief facts of the case of the petitioners in I.A.No.791 of 2008 / respondents herein before the lower Court would be as follows:-
The petitioners are the defendants 1,2, 3, 5, 7 and 9 in a suit filed by the respondents/plaintiffs for the reliefs specified thereunder. The petitioners have lodged a caveat in COP.No.417 of 2008 on 14.07.2008 and it was valid up to 14.10.2008. However, without giving any notice to the petitioners, the application filed in I.A.No.608 of 2008 seeking leave under Section 92 CPC was ordered ex-parte and the plaint filed by the respondents were admitted. The respondents/plaintiffs filed the suit as if the suit properties were the trust properties. But, the suit property is a private property maintained by Savalai Ramasamy Mudaliar, the great grand father of second petitioner, till his lifetime. Thereafter, the said guest house was maintained by the father of the second petitioner viz., S.V. Ramakrishnan Mudaliar and after his demise, the second petitioner was maintaining the property as his private property till he sold the same to the first defendant. The alleged Will dated 28.01.1908 did not contain the suit property nor it had been dedicated as trust property under the said Will and a portion of the said property was sold to one R. Vasudeva Naicker through a sale deed dated 16.07.1979. Since there was no trust created over the said property, no right can be accrued through the said Will dated 28.01.1908 since it was not probated. The petitioners did not manage the suit property in the capacity as trustees, since the property was never dedicated as trust property. The said property was neither dedicated as public trust nor any public was allowed to stay and utilise the same. The said property was exclusively possessed and enjoyed by the family members of S.V. Ramasamy Mudaliar and S.V. Ramakrishna Mudaliar and the second petitioner's family. The respondents had initially filed O.S.No.171 of 1995 before the Court for declaration and recovery of possession and for other reliefs and the said suit was transferred to District Munsif-cum-Judicial Magistrate, Thirukazhukundram and was renumbered as O.S.No.186 of 1996 and the respondents contested the suit and produced several documents and the case was posted for arguments. The respondents having smelt that they had no case, they have come forward with an application to withdraw the suit with liberty to file a fresh suit in I.A.No.371 of 2007 and the same was allowed on costs. The respondents have come forward with this suit as a second round of litigation and it is nothing but the abuse of process of Court. The relief sought for in the earlier suit is of identical in nature. The prayer made in the plaint to declare the suit property as belonging to Rani Thaiyal Nayagi Ammal Choultry Trust is outside the scope of Section 92 CPC, which dealt with public charity. No such relief is grantable under Section 92 CPC. The respondents have renewed their personal rights under the guise of the alleged trust and had obtained an ex-parte leave behind the back of the petitioners. Therefore, the suit filed by the respondents/plaintiffs would not be attracted under Section 92 CPC and therefore, the leave granted under Section 92 CPC has to be revoked.
4. The objections raised by the revision petitioners herein/ respondents before the Court would be as follows:-
(i) The allegation that while the caveat is in force, without giving notice to the petitioners/caveators, leave obtained in I.A.No.608 of 2008 behind the back of the petitioner is incorrect and false. The order passed
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