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Kamarusu Kasi Viswanadhan and anr. Vs. Rudra Viranna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2175 of 1948
Judge
Reported inAIR1953Mad220; (1952)IIMLJ443
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92
AppellantKamarusu Kasi Viswanadhan and anr.
RespondentRudra Viranna
Appellant AdvocateV. Parthasarathy, Adv.
Respondent AdvocateD. Narasaraju and ;K.B. Krishnamurthy, Advs.
DispositionAppeal Dismissed
Cases ReferredAbdul Razack Sahib v. Abdul Hamid Sail
Excerpt:
- .....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 utilised. the person in charge of the fund is bound to render an account for the use made of it.3. again in paragraph 5, it is alleged that this fund was kept with the defendant for the common purpose of the community.4. one of the defences to the suit was that section 92, civil p. c, was a bar. the courts below dismissed the suit upholding this defence as the procedure prescribed in section 92, civil p.c. has not been followed. the plaintiffs who are aggrieved by this decision have preferred this second appeal.5. in support of this appeal mr. parthasarathi contended that.....
Judgment:

Chandra Reddi, J.

1. 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 :

2. 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 utilised. The person in charge of the fund is bound to render an account for the use made of it.

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

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

5. In support of this appeal Mr. Parthasarathi 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, C.P.C. I do not think I can give effect to this contention. In Halsbury's Laws of England, 2nd Edn., Hailsham Edn., Vol. 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.'

6. 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.

7. In Mayne on Hindu Law and Usage, after extracting the passage in paragraph 145 of Halsbury's Laws of England, Vol. 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.'

8. This passage is quoted with approval by the Federal Court in -- 'Manibasundara Bhat-tar v. R.S. Nayudu', 1946 2 MLJ 17. 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 what has been cited above that any purpose connected with a village community is a public purpose of a charitable nature falling under Section 92, C.P.C. whatever might be the nature of that purpose. On the allegations in the plaint it is clear that the fund is to be utilised only for purposes connected with the village, but that the purposes have to be determined by a majority of the members of the village community. According to the plaint whatever might be the purpose for which it might be utilised, as a result of the decision of the majority of the villagers it must be for the benefit of the village community as a whole. It is specifically stated that the fund is meant for being utilised for the amenities of the villagers. It is not the case of the plaintiffs that the fund is to be distributed amongst all the villagers or that it is for the benefit of any individual or a particular group of persons. The allegations in the plaint make out a case of a trust created for the public purpose of a charitable nature. There can therefore be no doubt that those allegations come within the mischief of Section 92, C. P.C. (See decision of the learned Chief Justice and Somasundaram J. reported in -- 'Abdul Razack Sahib v. Abdul Hamid Sail', : AIR1951Mad406 ).

9. What emerges from this discussion is that if the fund is for the use of the villagers, that is for purposes connected with the village community, as a whole or with a substantial part of the village community, whatever may be the nature of the purpose to which it might be utilised, the trust must be said to be one of a public charitable nature. In my opinion the allegations in the plaint and the prayers asked for will certainly bring the case within the ambit of Section 92, C.P.C. Therefore in agreement with the courts below I hold that the case falls under Section 92, C.P.C. and the provisions of that section should have been complied with. In these circumstances, I must uphold the decision of the courts below and dismiss this second appeal with costs. (Leave to appeal is refused).


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