Harbans Singh, C.J.
1. The brief facts necessary for the decision of the two cross appeals, L. P. As. Nos. 122 and 235 of 1966 may be stated as follows:--
There is a school known as Sarvadanand Anglo Sanskrit Higher Secondary School (hereinafter referred to as 'the school') at Bassi Kalan, Tehsil and District Hoshiarpur. The management of this school was affiliated with the D. A. V. College. Hoshiarpur Society (hereinafter referred to as 'the plaintiff-society') and as alleged by the plaintiff-society it was in effective management of the school for a number of years. They had a local managing committee which was, however, dissolved. In the year 1963 the management of the school was conducted by the plaintiff-society direct. It is alleged that on 4th July 1963 an unruly mob assaulted the Principal of the school and belabored Balbir Singh, the President of the plaintiff-society. Later some local residents purported to form the managing committee of the school and got the same registered. The suit, out of which the present appeals have arisen was filed on 14th August, 1963. The allegations made were, inter alia, as follows:--
(1) That the schools was founded by the plaintiff-society in the year 1915 as D. A. V. Middle School and later on was named as Sarvadanand Anglo Sanskrit Middle School which was subsequently raised to the standard of Higher Secondary School.
(2) That land was acquired by the plaintiff-society over which the building was constructed out of its own funds, and thus the school building and the site underneath were claimed to belong to the plaintiff-society; and
(3) That on 4th July 1963 the possession of the plaintiff-society was disturbed by an unruly mob which formed a managing committee of the school, and the so-called managing committee has no right whatever to manage the school.
Consequently a prayer was made for a declaration that the plaintiff-society was the owner and in possession of the management of the school and the so-called managing committee had nothing to do with the school or its management, and by way of consequential relief, a further prayer was made for permanent injunction restraining the defendant managing committee (hereinafter referred to as 'the defendant-committee') from interfering with the plaintiff-society's possession of the management of the school.
2. The defendant-committee denied the allegations that the school was founded or its land was purchased or its building was constructed by the plaintiff-society. It was averred that the site of the school was acquired by the defendant-committee and building over it was constructed out of its funds, that it rightly dispensed with the services of Om Prakash Bagga, the then Principal, and that the defendant-committee was the only organisation legally entitled to own the property and mange the school. Objection was also taken to the form of the suit.
3. On these pleadings of the parties, the following issues were framed by the trial Court:--
1. Whether the plaint has been properly valued for the purposes of court fee and jurisdiction?
2. Whether Shri Balbir Singh has been duly authorised and as such has locus standi to bring the suit?
3. Whether the plaintiff's suit for declaration and injunction, as consequential relief, is maintainable in the present form in view of the objections in the written statement?
4. Whether the plaintiff, as such, can file the suit?
5. What is the effect of the proceedings under Section 145, Criminal P. C. between the parties?
6. Whether the plaintiff is the owner and is in possession of the management of the S.A.S. Higher Secondary School Bassi Kalan?
The trial Court found the main issues in favour of the plaintiff-society and granted a decree as prayed for. In appeal filed by the defendant-committee it was found by the learned Additional District Judge, after discussing the entire evidence that the plaintiff-society was not the owner of the school though the management was controlled by it. In fact the evidence led indicated that some property was purchased in the name of the school and some other property was donated again to the school and the building was constructed by getting donations etc. However, in view of the finding that effective management immediately before 4th of July 1963 was with the plaintiff-society, the learned Additional District Judge held that a mere declaration and injunction would not be sufficient to put the plaintiff-society into possession of the management and that as the school could not be separated from its management the plaintiff-society, in view of the provisions of Section 42 of the Specific Relief Act, 1877 should have sued for possession.
In view of this the learned Additional District Judge further held that the suit as framed was not maintainable and consequently, accepting the appeal, dismissed the suit of the plaintiff-society. The plaintiff-society then filed a regular second appeal in this Court which was heard by a learned Single Judge who came to the conclusion that the plaintiff-society should have prayed for possession of the school building also because it claimed ownership thereof and possession of the same was not with it but with the defendant-committee. The learned Single Judge further held that the suit should not have been dismissed by the learned Additional District Judge, but that an opportunity should have been given to the plaintiff-society to amend the plaint to bring it in the proper form. Thus the case was remanded to the trial court for giving an opportunity to the plaintiff-society to amend the plaint in order to remedy the defects pointed out and to pay a proper court-fee and thereafter to proceed with the case in accordance with law. Against this order of the learned Single Judge, the plaintiff-society has filed L. P. A. No. 122 of 1966 and the defendant-committee has filed L. P. A. No. 235 of 1966 and both these appeals will be disposed of by this judgment.
4. So far as L. P. A. No. 235 of 1966 filed by the defendant-committee is concerned, there is obviously no force. Amendment of the plaint would be allowed by the Court for the proper decision of the issues between the parties and the suit of the plaintiff-society cannot be dismissed simply on the ground that it was for a mere declaration and the plaintiff-society did not seek any further relief. In fact it was contended by the learned counsel for the plaintiff-society that there is no provision in Section 42 of the Specific Relief Act, 1877 (hereinafter referred to as 'the Old Act') now in Section 34 of the Specific Relief Act, 1963 (hereinafter referred to as 'the New Act') for a suit being dismissed, if it is for a mere declaration Section 34 of the New Act provides as follows:--
'34. Any person entitled to any legal character or any right as to any property may institute a suit against any person denying or interested to deny his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so.'
Thus the only consequence of a person seeking a mere declaration, where he is able to seek a further relief, is that the Court would decline to grant a decree for a declaration as prayed for.
5. During the course of arguments, however, the learned counsel for the plaintiff-society conceded that the suit as originally framed was such that it was necessary for the plaintiff-society to claim a further relief than a mere declaration of title. The suit, as originally framed, inter alia alleged that the school was founded and its building raised by the plaintiff-society and that the plaintiff-society was its owner in possession and, in addition, was managing the school. Other allegations were that some persons unlawfully took possession of the property which belonged to the plaintiff-society and turned them out. That being the case the plaintiff-society was obviously deprived of the possession and ownership of the property as well as of the management of the School. The consequential relief of a mere declaration and injunction to prevent the defendant-committee from interfering with their management was not an effective relief for them. In view of this the learned counsel put in an application for permission to file an amended plaint and accordingly an amended plaint was also put in. It is, therefore, not necessary to go into the lengthy arguments which were addressed as to whether a suit for declaration and mandatory injunction would not cover the proviso to Section 34 of the New Act and, therefore, would not be a suit for a mere declaration. The only point for consideration now is whether the plaint as now amended is in order and if the plaintiff-society is granted the relief now claimed, would that be an effective relief, in the circumstances of the case.
6. In the amended plaint the plaintiff-society no longer makes a claim to the ownership of the school or the land upon which its building stands. All that is stated is that in the year 1915 the plaintiff-society founded the D. A. V. Middle School, Bassi Kalan which was later on named as Sarvadanand Anglo Sanskrit Middle School which was later raised to the Higher Secondary Standard; that the land as described in the various paras of the plaint belonging to different persons on various dates was either donated to the school or was purchased for the school and the relevant mutations were sanctioned in favour of the school; that on this land building was constructed by the plaintiff-society; and that 'this building of the school is owned by and is in possession of the institution known as Sarvadanand Anglo Sanskrit Higher Secondary School, Bassi Kalan and the plaintiff had always been in possession of the management of the school.' As regards the actual happening of 4th July 1963, the allegations as given in paragraphs 9 and 10 are as follows:--
'9. That on 4-7-1963 certain persons formed a mob and assaulted the Principal of the school. Shri Balbir Singh, the President of the plaintiff-committee, was dragged and beaten when he went to the scene.
10. That on 9-7-1963, the plaintiff received a letter from Shri Jagan Nath in which a mention of a resolution dated 20-6-1963 was made. The subject-matter of the resolution was stated to be that some persons had decided to take the management in their own hands and get it registered under the Registration of Societies Act under the name of Sarvadanand Anglo Sanskrit Higher Secondary School, Managing Committee, Bassi Kalan. This self constituted society is defendant in this suit'.
It is then stated that the defendant-committee had no connection with the school and had no right 'to take possession of the management of the school'. Then follows paragraph 15 the prayer clause which is to the following effect:--
'That the plaintiff prays that a decree for declaration to the effect that the plaintiff D. A. V. College, Hoshiarpur Society, Hoshiarpur is entitled to the management and possession of the Sarvadanand Anglo Sanskrit Higher Secondary School, Bassi Kalan, District Hoshiarpur and the defendant has nothing to do with the said school, and the defendant be directed to hand over the management of the said school to the plaintiff with a consequential relief in the shape of permanent injunction restraining the defendant from interfering with the plaintiff's possession of the management of the school be passed in his favour against the defendant with costs......................'.
Thus no ownership of the property is claimed by the plaintiff-society. The ownership of the property is claimed to be in the institution known as Sarvadanand Anglo Sanskrit Higher Secondary School. So far as the plaintiff-society is concerned it claims to be in possession of its management. The declaration claimed is that 'the plaintiff is entitled to the management and possession of the school'. The further reliefs claimed are two in number (1) that the defendant-committee be directed to hand over the management of the school to the plaintiff-society, and (2) that the defendant-committee be restrained from interfering with the plaintiff-society's possession of the management of the school.
7. The argument of the learned counsel for the plaintiff-society is that here the ownership is claimed to be in a third person, namely, the institution, and that if this allegation of the plaintiff-society is established, then all that it is entitled to ask for is the right to the management of the school and an injunction against the defendant-committee not to interfere in their management and a direction that the management be handed over to the plaintiff-society. In support of his contention that in such a case it is not necessary for the plaintiff-society to seek the possession of the property and that the relief already claimed is an effective relief, the learned counsel relied upon a judgment of the Bombay High Court reported as Kunj Bihari v. Keshavlal Hiralal, (1904) ILR 28 Bom 567, of which the head-note reads as follows-
'Section 42 of the Specific Relief Act (1877) enacts that no Court shall make a declaration in a suit in which the plaintiff being able to seek further relief omits to do so. The section does not empower the Court to dismiss such a suit.
An injunction is a 'further relief' within the meaning of Section 42 of the Specific Relief Act'
In that case one Purshottam Prasadji who was the last owner or gadipati of a temple before his death made a will adopting defendant No. 14 as his son and appointing defendants Nos. 1 to 13 as the trustees to manage the property on his behalf during his minority. On his death defendant No. 14 was installed on the gadi as the adopted son of the last gadipati, and defendants 1 to 13 began to manage the property and continued in possession thereof. The plaintiff made a claim to the gadi and to the property belonging to the last gadipati. He filed a suit claiming the following reliefs:--
'(1) A declaration that the will of the last Acharya is null and void.
(2) A declaration that being the nearest relative of the deceased Acharya, he is according to the Dharma Shastras and principles of Hindu Law entitled to be the Acharya in his stead and that he has been placed on his seat by the eldest wife of the late Acharya and Sadhus of the Swaminarayan sect. and that he is therefore the sole 'gadipati' or owner and holder of the position of such Acharya.
(3) To obtain a perpetual injunction restraining the defendants from offering any obstruction to his occupying the gadi.
(4) To obtain a perpetual injunction restraining the defendants from offering anybody else on the gadi.'
The plaintiff in his evidence stated as follows:--
'....................... I want all the rights which an Acharya enjoys. I want the rights which the deceased Purshottam Prasad enjoyed in the property. The deity is the owner of the property. The Acharya is the owner of the property for the deity.'
The Courts below dismissed the suit being barred by Section 42 of the Old Act. Chief Justice Jenkins while delivering the judgment of the Bench, observed as follows at p. 571 of the report:--
'The plaintiff's view is that the temple's inams and other property said to be involved in this suit are the endowed property of the deity to whom they have been dedicated, and that to this deity the endowed property belongs, though the affairs of the endowment have to be administered by human agency and this, the plaintiff claims, is vested in him as the Acharya. The suit, therefore, in the plaintiff's view is not one for the possession of land, but to determine who is to occupy the gadi, and thus as gadinashin become the human agent of the deity.
If that be so, then an injunction restraining all interference with the occupancy by the plaintiff of the gadi secures in the most complete manner to him the rights he claims. We do not say that the plaintiff might not in terms have asked for possession of the office he says is his, we will assume he could but now would practical effect be given to an award of possession of an office otherwise than by preventing interference with the rights of which it is made up?'
In the right of these observations it was urged on behalf of the plaintiff-society that according to the amended plaint and in fact according to the findings of the Courts below, the property does not belong either to the plaintiff-society or to the defendant-committee but it belongs to a third person, namely, the school or the institution, and that the only claim of the plaintiff-society is a right to the possession of its management. Just as in Kunj Bihari's case, (1904) ILR 28 Bom 567 (supra) the plaintiff there could have asked for possession of the office and the only practical way in which the possession of the office could have been awarded was by preventing interference with the rights of which it was made up so, in the present case the only way in which the possession of the management can be given to the plaintiff-society if found entitled to it, would be by preventing interference with its right to manage the affairs of the school. It was, therefore urged that an effective relief would be available to the plaintiff-society in the changed circumstances of the case, first, by being given a declaration that it is legally entitled to the management of the school, and secondly, by giving possession of the management by preventing the defendant-committee from interfering in their right to direct the affairs of the school. There does appear to be force in this argument. The further argument of the learned counsel for the defendant-committee that this was a mere device to escape the payment of court-fee is also met by the learned counsel for the plaintiff-society by referring to another portion of the judgment in Kunj Bihari's case (at p. 572 of the report) where it is stated as follows:--
'It has been suggested that this is an attempt to evade the Court-fees Act, but if a plaintiff can evade that Act, he may; the remedy for that lies not in withholding a relief to which he is entitled as of right but in procuring an amendment of the Act................................ This suggestion of attempted evasion however proceeds on a misconception of the position. Though the property is of great value, it will not, on the theory propounded by the plaintiff, become his, and we will not presume that by malversation he would make it his'.
The learned counsel, therefore, urged that in the context of the present case the observations of Chief Justice Jenkins apply with full force. The plaintiff-society, according to the allegations in the plaint, was managing the school for a number of years; the property, namely, the land and the building thereon, belongs to the institution; and the plaintiff-society according to them has been ousted from the management by persons who have got absolutely nothing to do with the management of the school. According to the averments in the amended plaint, if the plaintiff-society succeeds the property in question will not become its property, but it is and will continue to be the property of the institution to which it was either donated or sold by its original owners.
8. The learned counsel for the defendant-committee, however, urged that the view taken in Kunj Bihari's case, (1904) ILR 28 Bom 567 (supra) was not a correct view of the law and that a Full Bench of the Madras High Court in Kandaswami v. Vagheesam, AIR 1941 Mad 822(FB) considered that case and dissented from the same, observing at p. 824 of the report as follows:--
'Here the appellant is endeavoring to separate the office from its endowments. This he clearly cannot do and as he is asking for a declaration of his title to the office and is not in possession of its properties he must by reason of Section 42, Specific Relief Act, ask for possession. His failure to do so vitiates his suit. It may be regrettable that a persons who has been ousted wrongly from an office and the control of the properties attached to it should be required to pay a court-fee based on the value of the properties before he can file a suit to remedy the wrong, but the Court cannot take such hardship into consideration when deciding the effect of Section 42, Specific Relief Act'.
9. On behalf of the plaintiff-society on the other hand, reference was made to Mohd. Yunus v. Syed Unnissa, AIR 1961 SC 808, in which Kunj Bihari's case (1904) ILR 28 Bom 567 (supra) was relied upon for the following proposition-
'Whether the further relief claimed in a particular case as consequential upon a declaration is adequate must always depend upon the facts and circumstances of each case. A suit for declaration with a consequential relief for injunction is not a suit for declaration simpliciter: it is a suit for declaration with further relief'.
In that case the plaintiffs claiming as heirs of one F sued to obtain a declaration of their rights in a certain institution which was in the management of trustees with an injunction restraining the defendants namely, the other claimants from interfering with their rights. The trustees never denied their right. So the facts of the case before the Supreme Court were slightly different and the question that has arisen in the present case was not before their Lordships. There the management and consequently the possession of the property was with the trustees; and obviously, a suit for declaration with a consequential relief for injunction would be in order. However, one thing is clear that Kunj Bihari's case (supra) did come for consideration and their Lordships placed reliance on the same. It is clear that if the view of the Madras Court is followed then in every case where a person who is legitimately entitled to the management of an institution, may be a math, a temple, a Gurdwara, or an educational institution, shall have to bring a suit for possession whenever he is ousted by an impostor or somebody who has no right to the management of the same. Take the case of a society, which has been rightly elected, being ousted by another combination of members who were elected at a meeting which was not properly called but was able to oust the association of members who were properly elected for the management of an educational institution. The persons properly elected would have to pay the court-fee on the entire value of the property which may run into lacs before they can get back the management.
This astounding result would not be there if the view accepted by Chief Justice Jenkins is taken to be correct. Where the property belongs to a third party and the dispute is only with regard to the management, prima facie we see no reason why it should be necessary to mix up the ownership with the right of management. We are, therefore, inclined to accept the view taken by Chief Justice Jenkins in Kunj Bihari's case that where the property is owned by the deity or the math or some other juristic person capable of holding property and the dispute is only with regard to the human agency which has to administer the affairs of such an institution, the person claiming management need not bring a suit for actual possession of the property as distinguished from the possession of the management which, as observed by Chief Justice Jenkins can be enforced only by preventing the other party from interference.
10. This, however, brings us to another question of considerable importance as to whether a school can own property. It is now well established that a math which is similar to an educational institution as there is no deity in such a case is a juristic person capable of holding property and bringing and defending suits. It could be argued that there is no reason why a school, college, orphanage or any other similar institution should not be able to own property. In the present case not only there are allegations in the amended plaint to that effect, but there is evidence on the record that some part of the land on which the institution now stands, was actually donated and some other part was sold to the school and that mutations were also made and the property now stands in the revenue records, in the name of the school. However, as the point is of importance and was also not argued before us, we feel that it would be proper if this point is decided by a larger Bench and, therefore formulated the following question for being decided by a larger Bench:--
'Whether an educational institution, like a school as in the present case, is capable of holding property and is a juristic person?'
Prem Chand Jain, J.
11. I agree.