1. The plaintiffs are the appellants in this appeal directed against the dismissal of their suit in 0. S. 56 of 1972, Sub-Court, Kurnbakonam, under S. 92. C. P. C. praying for the relief of the framing of a scheme. The appellants came forward with the suit claiming that the suit properties are dedicate for public purposes and constitute a public trust. It was also further claimed in the plaint that there is a choultry at Pandanallur, called 'Kunnayee chatram' and one Kurmayee Ayeeyar wife of Vellaya Pillai constructed the choultry in or about 1840 and endowed some lands and subsequently one Chellappa and Chinnakulandai also endowed other properties to the choultry in all totalling to 37 acres and 10 cents in Pandanallur and Keelamandur villages. The patta in respect of these properties, according to the appellants, stood only in the name of the choultry and the respondents I to 3 herein did not have any rights. The properties so endowed to the choultry formed part of schedule I to the plaint and the appellants claimed that the entire income was intended to be utilized for conducting Thanneer Pandal Dharmam, poor feeding of mendicants and the maintenance of the chatram building, compendiously called 'Sri Venkatachalapathi Dharmam'. It was the case of the appellants that till about 1930, a few mendicants and pilgrims used to be fed in the choultry -and the Thanneer Pandal Dharmam was also commenced in the Tamil monffi of Chitrai with the inauguration ceremony and that subsequently the ceremony was abandoned and the Thanneer Panda] Dharmarn alone was conducted for about three months in a year, incurring an expenditure of Rs. 300 per annum, out of a total income of about Rs. 18,000 from the properties resulting in the appropriation of the balance of the income by the respondents 1 to 3., It was also the further case of the appellants that the endowed properties had been dealt with by the respondents 1 to 3 contrary to the terms of the endowment and collusive proceedings had also been taken resulting in the passing of orders by the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur. With reference to the allocation of income for the performance of ' Somavara Kattalai' in Sri Pasupatheeswaraswami temple at Pandanallur. Alleging that the first appellant wits a member of the community and a relative of the donors and respondents 1 to 3 and was also invited to be present on the occasion of the performance of the Thanneer Pandal Dharmam the appellants claimed to be persons interested in the due and proper performance of the objects of the endowment and instituted the suit for the removal of respondents I to 3 from the trusteeship and management and for framing a scheme for the proper administration of the chatram and its properties and also for other incidental reliefs.
2. In their written statement, the respondents 1 to 3 disputed the maintainability of the suit by the appellants as persons interested in the trust. The dedication to the choultry and the endowment of properties fo~ the purposes claimed by the appellants was also denied. It was claimed by the respondents I to 3 that some properties were set apart for the purpose of conducting Thanneer Pandal charities out of the income there from. The feeding of the poor mendicants and the construction of the chatram and its maintenance from out of the endowed properties was denied by respondents 1 to 3. That there was an endowment of properties as public trust was denied by them. -The income from the properties, according to the respondents 1 to 3, was grossly exaggerated and the income there from was only about Rs. 4704 and after meeting the Thanneer Pandal Dharmam and thc Sornavara Kattalai in Sri Pasupatheesararswami temple at Pandanallur, the respondents I to 3 were entitled to the beneficial interest in the balance. Relying upon the proceedings in 0. A. 81 of 1962 on the file of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur, an objection was taken that the suit was bad, for non- joinder of the Commissioner, Hindu Religious and Charitable Endowments. Department and that the suit was also barred by Ss. 108 and 111of the Hindu Religious and Charitable endowments Act. The respondents I to 3 further pleaded that the expenses of the performance of the Thanneer Pandal Dharmam and the Somawara kattalai was only in the nature of a charge on the income of the family lands and should be in the nature of private family charities and in the absence of any deed of endowment or dedication of properties for purposes set out in the plaint, the properties would not he said to be endowed or dedicated as public trust and, therefore, there was no .justification for the framing of a scheme under S. 92, C. P. C. as prayed for by the appellants. The respondents 1 to 3 also contended that the appellants were not entitled at all to call upon the respondents I to 3 to render any account. The interest of the appellants in the trust and its properties was also seriously questioned by t lie respondents 1 to 3.
3. The Executive Officer, Sri Pasupatheeswaraswami temple, Pandanallur, the sixth respondent herein, filed a written statement disputing the right of the appellants to represent the public and stated that the allocation as per the order of the Deputy Commissioner, Hindu Religious and Charitable Endowments Department, Thanjavur in O. A. 81 of 1962 was being adhered to and that water and buttermilk were supplied in the choultry and further that Somawara Kattalai was also being performed by respondents 1 to 3 he was neither in the temple. Claiming that a necessary nor a proper party and also that the suit was barred by limitation, the sixth respondent prayed for the dismissal of the suit.
4. In their written statement, the respondents 7 and 8 claimed to be the settles of some items of properties and pleaded that these items had nothing to do with any trust or charity and that the, properties belonged to the family of the respondents 1 to 3 absolutely and, therefore, the settlement deeds could not be questioned by the appellants. A further plea was also raised that the question of considering the propriety of the alienations in their favour was outside the scope of the suit under S. 92. C. P. C. In other respects, they adopted the written statement of the respondents 1 to 3 and prayed for the dismissal of the suit.
5. On the aforesaid pleadings, the learned Subordinate Judge. Kumbakonam framed the necessary issues and on a consideration of the oral as well as the documentary evidence, found that the appellants have failed to establish the dedication or endowment of the suit properties for any public trust or any public purpose, that the appellants have failed to establish that they were persons interested in the suit properties so as to justify their coming before the Court seeking, the enforcement of any public obligations attached to the properties in the hands of the respondents 1 to 3, that' the income from the lands would be about 600 bags of paddy per year and Rs. 200 per annum from the sites, that the respondents I to 3 were the trustees of a private trust and the appellants were not entitled to ask for their removal or appointment of other trustees. that the appellants have failed to establish that they were entitled to demand rendition of accounts by the -respondents 1 to 3, that the settlement deeds in favour of the respondents 7 and 8 cannot be questioned by the appellants, that Ss. 108 and 111 of the Hindu Religious and Charitable Endowments Act would bar the suit, that the suit was barred by limitation and that the appellants had failed to establish that they were entitled to have a scheme framed for the proper administration of the trust and its properties. On these conclusions, the suit was dismissed.
6. In this appeal, the principal contention of the learned counsel for the appellants is hat the documentary evidence would disclose that there were sufficient materials to infer a dedication of the suit properties for public purposes and if so, then having regard to the other circumstances established by the evidence, the framing of a scheme is necessary. The learned counsel drew our attention to Exs.A. 8. A. 7. A. 6. A. 1, A. 4, A. 9, A. 10 and A. 11. Besides, the learned counsel invited our attention to C. M. P. 12341 of 1977; wherein the appellants have prayed for the reception of two registration copies of the documents filed therewith as additional evidence in this appeal. On the other hand the learned counsel for the respondents submitted that there is no proof in this case of any dedication of the properties for purposes which can be considered to be of the nature of a public trust and that if at all, the obligations undertaken to be performed by the res pondents 1 to 3 would be in the nature of a private family trust in respect of which the appellants cannot question their management or ask for rendition of accounts or even the framing of a scheme. The learned counsel further submitted that as per the evidence on behalf of the appellants, they are not persons 'interested' in the public trust or in the performance of the charities or the choultry as to enable them to maintain a suit under S. 92, C. P. C. even assuming that there was an endowment of properties for those purposes. Reliance in this connection was placed by the learned counsel for the respondents upon the decision in C. Kalahasti v. R. Sukanthraj (1975) 88 MLW 577. A further point was also raised by the learned counsel for the respondents that Ss. 108 and 111 of the Hindu Religious and Charitable Endowments Act would bar the suit instituted by the appellants. In reply the learned counsel for the appellants submitted that there was no attempt to modify or vary the order of the Deputy Commissioner, Hindu Religious and Charitable Endowments, Department. Thanjavur as that order can always be given effect to with reference to 40 per cent of the income directed to be apportioned, but nevertheless a scheme could be framed with reference to the undisposed portion of 60 per cent of the, income. Referring to the evidence of P. W. 1. the learned counsel contended that he was a relation of the founders and was also a resident of the place and as stich would be a person interested in the proper administration of trust and its properties and thus entitled to maintain the suit under S. 92, C. P. C. in that capacity. Reliance in this connection was also placed by the learned counsel upon the decisions in Chotala) Lakhmiram v. Manohar Ganesh Tambekar (1899) 26 Ind App 199, G. Sanyasayya v. Muthernma AIR 1919 Mad 943, and Narasimha Suryanaravana v. Lakshminarasimaham, AIR 1926 Mad. 267.
7. There is no controversy that if the appellants are persons who do not have an interest in the trust and its properties, then they have no right to institute a suit under S. 92 C. P. C. praying for the reliefs for which provision is made there under, even assuming that the properties have been endowed- or dedicated for any express or constructive trust created for the public purposes of a charitable or religious nature. In a suit of the description failing under S. 92, C. P. C., under the English law. The plaintiff was required to have a direct interest in the trust and this rule was adopted by the Code of 1877 and enacted in S. 539 of the Code of 1882, which also required the plaintiff in such a suit to have a direct interest in the trust. Later, the requirement of the existence of a direct interest was considered to be not expedient in so far as India was concerned and, therefore by S. 44 of the Civil P. C. (Amendment) Act 1888, the word 'direct' was omitted and the amendment widened the class of persons entitled to institute a suit under S. 92 C. P. C. But even after the amendment, the interest contemplated under S. 92 C. P.C. must be a real, substantive and an existing interest in the particular trust. It should not be a remote, fictitious or a c9ntingent one, though such an interest need not be a direct interest in the sense that only a person who stands in the position of a beneficiary can institute such an action. It is also wholly unnecessary that the plaintiff should establish an interest in every bit of the property stated to be comprised in the trust. The question whether a person has such an interest in a particular trust as to maintain an action under S. 92 C. P. C. has to be determined on the facts as well as the evidence and with reference to the trust in relation to which the suit is brought.
8. In this case, it is seen that the appellants are related to as father and son and that the son was a resident of Madras even at the time when the suit was instituted. In the plaint, the appellants have stated that they have been in the habit of using the chatram while leaving the village for outward journeys and also returning home, especially at night for stay till day break. It is this that is claimed by the appellants as an interest sufficient to enable the appellants to maintain the suit Linder S. 92, C. P. C, It is also claimed I hat the appellants are members of one of the families entitled to the hereditary trusteeship of Sri Pasupatheeswarar temple and are interested in the proper management of the said temple and its properties and. therefore, the suit had been instituted by them as representatives of the beneficiaries and also the public at large. The plaint is wholly and exclusively rested on the aforesaid interest only. In the written statement, the use of the choultry for the purpose set out in the plaint either by the appellants or by others had been denied. The claim of the appellants to hereditary trusteeship in the temple was also denied and the respondents I to 3 have clearly disputed the interest of the appellants to represent the public as claimed by them in regard to the maintainability of the suit under S. 92, C. P. C.
9. The first appellant examined as P. W. I was unable to give any useful evidence with reference to his relationship to the family of the founders. In the absence of such evidence, P. W. 1 cannot be stated to be interested in the performance of the trust as one of the descendants of the founders of the trust. In the course of his cross-examination, P. W. I stated that his interest was only public interest and not any special interest and that he visited the choultry even a day before his cross-examination. In the course of further cross-examination P. W. I would say that he used to eat, drink and sleep in the choultry. P. W. I is a native of Pandanallur and permanently resides there. It is impossible, I therefore, to believe that a permanent, resident of Pandanallur village lived in the choultry in preference to his house. P. W. I has admitted that excepting him, nobody else in the village has come forward to support him in his case. Thus, though the appellants have made a claim in the plaint that the suit had been instituted in a representative capacity for the benefit of the public at large, even the evidence of P. W. I clearly establishes that he and his son. who is also not a resident ~t the place, alone are interested in fighting out the suit owing to personal animosity and that the public of Pandanallur and Keelamandur villages do not support them. The evidence of P. W. I would further disclose that there is enmity between the family of the appellants and the respondents 1 and 3 and the appellants have come forward with the suit only with a view to settle an old score and -not in the interest of the so called trust. That the appellants might, have belonged to the family entitled to the hereditarv trusteeship of Sri Pasupatheeswarar temple would not clothe the appellants with interest of such a nature as to enable them to maintain a suit under S. 92 C. P. C. for according to the case of the appellants. the original endowment was not for the purpose of performing any Kattalai in the temple and the appellants had not established that they were the trustees of the temple. Thus, from the evidence of P. W. 1, all that appears is that he is a resident of the place where the choultry and the properties stated to be dedicated for the Thanneer Pandal Dharmam are situate. Whether the mere residence itself would confer sufficient interest on the first appellant to maintain the suit under S. 92 C. P. C. has to be considered.
10. Earlier, it has been seen that the interest contemplated under S. 92, C. P. C. should be a real, substantive and an existing interest though it need not be a direct interest. We are of the view that mere residence of the first appellant in the village would not enable the first appellant to claim that he is a person interested in the affairs of the choultry and its properties and as Such entitled to maintain the action under S. 92 C. P. C. We may briefly refer to some of the decisions to which our attention in this connection was drawn by counsel on both sides. The decision in Chotalal Lakshmiaram v.Manohar Ganesh Tambekar (1899) 26 Ind App 199. relied on by the learned counsel for the appellants does not, in our opinion, lay down that mere residence in a place would suffice to enable a person as a pet-soil interested to maintain the Suit under S. 92, C. P. C. G. Sanyasayya v.Muthemnia. AIR 1919 Mad 943, was a case where the Suit Linder S. 92, C. P. C. was brought by persons who are residents of the locality in which the choultry was situated but also members of the community for whose benefit the charity was founded and under those circumstances, this court held that they had sufficient interest to maintain the suit under S. 92, It has to be remembered that mere residence alone was not considered to lie sufficient, but in addition to that, the plaintiff who instituted the suit were also members of the community for whose benefit the choultry was built. That would suffice to render the decision in G. Sanyasayya v. Muthemilla AIR 1919 Mad 943. inapplicable to this case. N. Suryanarayana v. Laksliminarasimha, AIR 1926 Mad 267 laid down that persons belonging to neighbouring villages who attend tile temple on important occasions and also celebrate the marriages at tile temple are persons having an interest in the temple within the meaning of S. 92. C. P. C. It was also pointed out that the interest which the plaintiff possessed must be real, but not remote must be substantial and not illusory, must be an existing interest and not a mere contingency and the mere circumstance that the plaintiffs do not habitually resort to a temple is not sufficient to debar them from exercising the right under tile section. It is thus seen that the attendance at the temple on important occasions and the celebration of marriages at the temple gave an interest to the plaintiffs of such a nature as to maintain the suit under S. 92, C. P. C. and Such art interest was a real, substantial and an existing interest. Such is not the Situation in this case, However in Harnam Singh v Gurdial Singh, : 2SCR739 , the Supreme Court, while considering tile question of the nature of the interest under S. 92. C. P. C. to sustain a suit there under, pointed out that mere residence in a village where free kitchen is being run for providing food to visitors does not create any interest in the residents of the village of such a nature as to claim that they can institute a suit for the removal of the Mahant. The Supreme Court observed as follows (at p. 1417 of AIR)
'The nature of the interest that a person must have in order to entitle him to institute a suit under S. 92. C.P. C. was first examined in detail by the Madras High Court in T. R. Ramachandra Iyer v Parameswaran Unni ILR 42 Mad 360 : AIR 1919 Mad 384. After the dismissal of the suit under S. 92, C. P. C. by the District Judge, the case came up in appeal before Wallis C. J. and Kumaraswami Sastri J. who delivered the dissenting judgments. The appeal was dismissed and then came up before a Full Bench of three Judges under the Lefters Pateni. Three different judgments were delivered by the members of the Full Bench, Abdur Rahim. Oldfield and Coutts Trotter JJ. Wallis C. J. when dealing with the appeal at the earlier stage, expressed his opinion that to entitle him to sue under S. 92. C. P. C. it is not enough that the plaintiff is a Hindu by religion, but he must have a clear interest in the particular trust over and above that which millions of his countrymen may be said to have by virtue of their religion; and this opinion was expressed even though the word 'direct' in S. 92, C. P. C. had been omitted. It is not necessary to refer to other opinions expressed by the learned Judges in that case in view of the decision of their Lordships of tile Privy Council in Vaidyanatha lyer v. Swaminatha Iyer, 51 Ind App 282 : AIR 1924 PC 22 1, where they approved the opinion expressed by Sir John Wallis C. J. in the case cited above and held : 'They agree with Sir John Wallis that the bare possibility. However remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust appears to defeat the object with which the Legislature inserted these words in the section. The object was to prevent people interfering by virtue of this section in the administration of charitable trust merely in the interests of others and without any real interest of their own'. Agreeing with the view expressed by the Privy Council, we hold that in the present case the plaintiff-responoents, who were merely lambardars and residents of -village Jhandwala, had, in those capacities, no such interest as could entitle them to institute this suit.'
We are of the view that the above observations of the Supreme Court are apposite and squarely apply to this case. We may now refer to C. Kalahasti v. R. Sukhantharaj, (1975) 88 MLW 577, where the question arose whether the old students of a college can be said to have an interest sufficient in law to maintain an action under S. 92. C. P. C. with reference to the administration of the educational institution in regard to which a scheme decree was prayed for. It was held that plaintiffs suing under S. 92, C. P. C. must stand on a special relationship with the trust as distinct from the rest of the community to that they may have a particular direct relationship with the institution and that to say that any member of the public who may have a distinct or indirect connection or relationship with the institution is a person having interest in the trust, would dilute the requirement of S. 92. C. P. C. Ultimately, it was held that as old students of the college. the plaintiffs were naturally interested in the proper administration of the trust and as such old students they stood distinguished from the generality of the community and that gave, then) a particular direct and distinctive interest in the public charitable trust to enable them to claim in a suit under S. 92 C. P. C. a proper administration of the institution in which they were so interested. This decision also brings out clearly that the interest of the appellants of the nature established by the evidence in this case would not be sufficient to enable them to institute the suit under S. 92. C. P. C. praying for the reliefs thereunder. as persons interested in the trust. On the short, round that the appellants have not established an interest in the trust as contemplated under S. 92. C. P. C. they have to be non-suited. We, therefore, refrain from expressing, any opinion on the other questions dealt with by the court below and also repeated before this court. Consequently, the appeal fails and is dismissed. There will be, however, no order as to costs.
11. Appeal dismissed.