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IN THE HIGH COURT OF JUDICATURE AT MADRAS
V. PARTHIBAN, J.
Clement Selvaraj & Others - Appellant
Versus
The John De Monte Trust, Represented by Its Managing Trustee, Rev.Dr.George Antonysamy & Others - Respondent
A. No. 1423 of 2019 in C.S. Diary.No. 140041 of 2018
Decided on : 17-11-2021
Civil Procedure Code, 1908 - Section 92 - Church property - Defalcation of Trust properties - Seeking leave to sue - Plaintiffs 1, 2 and 4, being Office bearers of 3rd plaintiff Society claim themselves as persons working towards upliftment of poor and needy in and around City of Madras - 3rd plaintiff is a registered Society, claim to be constantly involved in taking up issues relating to defalcation of Trust properties belonging to Christian Community - 3rd plaintiff also claim credit for organising Joint Christian Action Council Convention in Chennai on chaired by Mr.Justice K.J.Thomas, former Justice of Supreme Court of India on topic of a law to govern use of Church property - 1st defendant was a Trust constituted pursuant to last will and testament of one a successful businessman of a Portugese origin - He had come to India in 1777 and in due course, he had accumulated extraordinary wealth in and around Chennai - On, then aged 56 had written his last Will and Testament - After writing Will of, passed away in Madras - His body was taken to Mount Carmel Chapel, Covelong and interred there in accordance with his wishes - Whether suit falls within the ambit of Section 92 – Held, application is not filed with solemn view to vindicate public interest - Allegation of mismanagement or mal-administration are found to be without substance and basis - Application is also an attempt to re-agitate many of the issues which had been settled in the earlier proceeding as aforementioned - Thus application is intended to harass trustee and the Trust - Application also fails for misjoinder of parties (3rd , 4th and 7th respondents)As far as he legal ground relating to limitation, though prima facie, objection has considerable force, but this Court is not inclined to hold conclusively one way or other, in view of application being rejected wholly on merits - Application is dismissed.
Certainly. Here is a summary of the key legal points from the provided document:
The suit under Section 92 CPC is of a special nature, requiring the existence of a public charitable or religious trust and alleging breach of trust or the need for court directions for trust administration. The suit must be brought by interested persons with a substantive interest in the trust, not merely with a remote or contingent interest (!) (!) .
The primary purpose of Section 92 CPC is to protect public trusts from harassment and frivolous litigation. The court's initial scrutiny involves examining the allegations in the plaint to determine whether they substantiate a breach of trust and whether the suit is genuinely for the public good (!) (!) .
Interested persons seeking leave to institute such a suit must demonstrate a clear and direct relationship or interest in the trust. Mere general or remote interest, such as being a devout member or having a nominal connection, is insufficient to qualify as an interested person (!) (!) .
The court's prima facie assessment at the stage of granting leave is limited to the allegations in the plaint and the proposed plaint, without a detailed inquiry into the truth of the allegations. The purpose is to prevent vexatious suits and protect the trust's administration (!) (!) .
If the allegations in the plaint are baseless, reckless, or aimed at harassment, the court can refuse leave. The suit must show a bona fide intent to vindicate public rights, and not personal or private interests disguised as public interest (!) (!) .
The scope of inquiry during the leave application is narrow, focusing on whether the suit relates to a breach of trust, whether the suit is representative of the public interest, and whether the plaintiff has a genuine interest in the trust. The court does not conduct an in-depth trial at this stage (!) (!) .
Previous judgments have emphasized that the allegations of mismanagement or breach of trust must be substantiated with acceptable materials. Vexatious or frivolous allegations, especially those already addressed in earlier proceedings, can be grounds for rejecting the application (!) (!) .
The doctrine of res judicata applies where the issues have been previously adjudicated, and the suit or application is barred if it seeks to re-litigate matters already settled in earlier proceedings (!) .
The court must also verify whether the trust is properly represented and whether the persons instituting the suit have the necessary standing. Merely claiming to act in the interest of the community or faith does not automatically confer interested status unless a substantive and direct interest is demonstrated (!) (!) .
The court’s overarching concern is to safeguard the trust’s integrity, ensure proper administration, and prevent abuse or misuse by interested persons with ulterior motives. Vexatious or malicious suits that aim to harass the trust or its trustees are liable to be dismissed (!) (!) .
The legal process involves a balance between protecting the trust from unwarranted interference and ensuring genuine concerns of interested persons are addressed. The court's discretion at the leave stage is guided by the principles of bona fide interest, absence of malice, and the absence of prior final adjudications (!) .
Overall, the legal principles underscore that suits under Section 92 CPC are to be initiated only by persons with a real, direct, and substantial interest in the trust, and allegations must be substantiated with credible evidence. The court's role at the initial stage is limited to a preliminary assessment aimed at preventing frivolous litigation and safeguarding the trust’s purpose (!) (!) .
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JUDGMENT :
(Prayer: Application filed under Order XIV Rule 8 of the Original Side Rules read with Section 92 of the Code of Civil Procedure, 1908, to grant leave to the applicants to institute this Suit under Section 92 of the Code of Civil Procedure, 1908.)
1. The application has been filed seeking leave to sue under Section 92 of Civil Procedure Code, hereinafter referred to as ‘CPC’.
2. The plaintiffs 1, 2 and 4, being Office bearers of the 3rd plaintiff Society claim themselves as persons working towards upliftment of the poor and needy in and around the City of Madras. The 3rd plaintiff is a registered Society, claim to be constantly involved in taking up issues relating to defalcation of Trust properties belonging to the Christian Community. The 3rd plaintiff also claim credit for organising the Joint Christian Action Council Convention in Chennai on 20.11.2016, chaired by Mr.Justice K.J.Thomas, former Justice of the Supreme Court of India on the topic of a law to govern the use of Church property.
3. According to the applicants/plaintiffs, the 1st defendant was a Trust constituted pursuant to the last will and testament of one John De Monte, a successful businessman of a Portugese origin. He had come to India in 1777 and in due course, he had accumulated extraordinary wealth in and around Chennai. On 19.07.1820, Mr.John De Monte, then aged 56 had written his last Will and Testament. After writing the Will, Mr.John De Monte, passed away in Madras in 1821. His body was taken to Mount Carmel Chapel, Covelong and interred there in accordance with his wishes. The probate of his last Will and Codicil was also granted by the erstwhile Supreme Court of Madras vide proceedings dated 28.09.1827. The 1st respondent Trust was constituted pursuant to the Will and Testament of Mr.John De Monte.
4. After the death of Mr.John De Monte, the vast estate stood vested in the executors of the Trust and the properties to be used towards public charity as outlined in the Will. According to the applicants herein, during his life time, he had found several religious and charitable Institutions like Hospital and Charity House at Luz, the Church at Covelong, the Church at Poonamallee etc. The Trust properties include, two prime and valuable properties in the heart of Madras City in Benz Garden at R.A.Puram and De Monte Colony at Alwarpet. These properties were also covered under the Will and Testament of Mr.John De Monte. According to the applicant, the original extent of the properties was around 105 acres but this had shrunk to 690 grounds in 1950’s.
5. Earlier, the Trust Properties were found to be not managed properly owing to mal-administration, forcing a reputed former Civil Servant, one Mr.L.M.Menezes and others to file C.S.No.156/2002 before this Court seeking permission under Section 92 CPC. to sue the Trust. The Suit was filed to frame a Scheme for proper administration of the Trust of Mr.John De Monte. It appeared, earlier leave was granted under Section 92 CPC. in Application No.567/2002 and an interim injunction also appeared to have been granted, restraining grant of any long or short lease of the properties belonging to the Trust. Subsequently, the leave which was granted by this Court under Section 92 CPC., was revoked by the learned Judge of this Court in response to the application No.3081/2002 filed by the respondents/defendants. As against that O.S.A.No.83 and 129 of 2003 had been filed and the Division Bench of this Court, by order dated 22.12.2003 dismissed O.S.A.No.83 of 2003 and allowed O.S.A.No.129 of 2003.
6. The matter, thereafter, went up to the Hon’ble Supreme Court in C.A.No.3052 of 2006. An affidavit was filed on behalf of the 2nd respondent herein dated 24.11.2011 to the effect that being the sole trustee of Sir John D’Monte Trust, he will not dispose of or part with or lease or deal with the properties of the DeMonte Trust in any manner to the detriment of the trust, unless necessary permission is obtained from the Compe
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