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Sarat K. Mitra Vs. Hem Ch. Dey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 2864 of 1953
Judge
Reported inAIR1960Cal558
ActsCode of Civil Procedure (CPC) , 1908 - Section 92
AppellantSarat K. Mitra
RespondentHem Ch. Dey and ors.
Appellant AdvocateB.K. Chowdhuri and ;D.K. Dey, Advs.
Respondent AdvocateR.N. Mitra, ;Sambhu Ghosh and ;A.N. Mitter, Advs.
Cases Referred and Rambilas v. Nityanand
Excerpt:
- .....institute a suit under section 92 of the code, improperly introduces in the plaint of the intended suit reliefs that are not permitted by the section, he can hardly complain that sanction, though applied for, has been refused. in my judgment, the sanction of the advocate general was rightly refused in the instant case, inasmuch as most of the reliefs in the plaint could not be claimed in a suit under section 92 of the code.15. it appears to me, on going through theplaint, that two cases have been made, one ofwhich can only be instituted in the manner indicated by section 92 of the code. that case relates tothe trust which in my judgment, is created, interalia, for a public purpose of a charitable nature.there are allegations that the trustees, the validityof whose appointment has been.....
Judgment:

P.C. Mallick, J.

1. This litigation relates to the trust created by one Akshoy Kumar Ghose now dead (hereinafter referred to as the settlor) by his will dated 21-5-1948. The executors and trustees were directed by the instrument to pay to the wife of the settlor during her natural life an allowance of Rs. 50/ per month for her support and maintenance. They were further directed to establish and consecrate an image of Sri Sri Annapurna and to establish a charitable institution to be named 'Sreenath Sebasram' for indigent Hindus in case the settlor failed to do so in his lifetime. The executors and trustees were further directed to 'give, grant and dedicate' the whole of the estate for the worship of the image and for meeting the expenses of the helpless Hindus subject to the allowance payable to the wife of the settlor. The instrument further lays down:

'And in such grant my executors and trustees shall provide for with the power and authority regulating the expenses hereinafter directed according to the income of the properties and circumstances attending the change in the market.

1. Daily worship of the said image of Sree Sree Annapurna Debi at a cost not exceeding Rs. 40/ per month,

2. Periodical worship of the said Annapurna Debi on Mohastomy day, Sivaratri, Kali Pujan and Annapurna Puja festival at a cost of not exceeding Rs. 200/ in all each year.

3. Performance of anniversary sradh of my father, mother and myself and my wife (after her death) at any reasonable cost as my executors and trustees shall think fit but not exceeding Rs. 200/- a year.

4. Feeding the helpless Hindus daily at a cost as the surplus income of my estate will admit I hereby declare that it is my intention and desire that in the administration of the trust for feeding the poor and indigent Hindus my executors and trustees should give preference to the indigent and poor Kayesthas of both sexes.'

2. The settlor's wife was named as the first shebait and after her death and in case of her incapacity the trustees for the tune being were directed to exercise the function of shebait jointly.

3. Sureswari Dassi the wife of the settlor, Sitanath Bose and the settlor's nephew Sisir Kumar Bose were named as trustees. Provisions are made for the appointment of new trustees in case of death or retirement of the original trustees. It is provided that in no case the number of trustees should be less than two. In case no probate was obtained and/or appointment of new trustees made in accordance with the provisions of the will, the Official Trustee was directed to be the executor and trustee and the heirs of the settlor for the time being were to be the shebaits who would perform only the religious part of the trust and to whom payments would be made by the Official Trustee in terms of the will for; the expenses in connection with the religious part of the trust only.

4. The settlor died shortly after executing the will. The settlor's widow died during the pendency of the testamentary proceedings in which probate was granted to Sitanath and Sisir, the remaining executors.

5. This is a representative suit instituted by the plaintiff for self and other members of the Hindu Community interested in the trust estate The defendants Nos. 1 and 2 Hem Chandra Day and Protap Narayan Bose are purporting to act as trustees. The defendant No. 3 Ashutosh Coomar is the lessee of one of the trust estates. The defendant No, 4 is the deity. Defendants Nos. 5 and 6 Basanta Kumar Mitra and Hemanta Kumar Mitra are alleged to be along with the plaintiff the heirs of the settlor at the time of the institution of the suit. During the pendency of the suit the original defendants Hem Chandra Dey and Basanta Kumar Mitra died and in their place and stead have been added persons alleged to be their heirs and legal representatives.

6. It is pleaded in the plaint that the purported appointment of new trustees in place of the original trustees are not in accordance with the provisions of the deed and as such they have no title to act as trustees. The trustees are guilty of mismanagement and breach of trust. Particulars of such breach of trust are set out in paragraph 5 of the plaint. One of the acts complained of is the granting of a lease of a trust property to defendant No. 3 for 50 years at a rent of Rs. 250/- per month at present on receipt of a salami of Rs. 20,000/-. It is alleged that the income of the said property was Rs. 600/-pcr month at the time when the lease was granted. The reliefs claimed inter alia are:

1. Declaration that the defendant trustees are not properly appointed trustees and shebait.

2. Construction of the Will and framing of a scheme.

3. Accounts against the trustee defendants.

The other prayers relate to the lease and the Court is invited to adjudicate the lease as void and make an order directing its cancellation and delivery. Injunction is claimed against the executor and the lessees. There is a claim for delivery of possession of the demised premises to the new trustees and a further claim, for damages and enquiry as to damages.

7. In the written statement filed by the trustee defendants, all allegations of mismanagement and breach of trust have been denied. It is alleged that the plaintiff has no interest in the trust estate and that he has no cause of action to institute the suit. It is further alleged that apart from the plaintiff and the defendants Nos. 5 and 6, there are other sister's sons who are equally entitled to inherit the estate of the testator on intestacy and as such to act as shebaits. Both the trustee and the lessee defendants contend that the trustees had full authority to grant the lease, that the lease is a proper building lease for the benefit of the trust estate. It is contended that the suit is not bona fide, that it is bad for misjoinder and nonjoinder of parties. The guardian of the deity has left the matter to the court with the usual lamentation that he has received no instructions from anybody.

8. The plaint appears to have been amended by adding a fresh ground challenging the validity of the appointment of the trustees. In the additional written statement the trustees and the lessee defendants disputed the allegations introduced by the amendments. It is contended that the appointments were made pursuant to an order of the District Judge of 24 Parganas in a proper proceeding in that behalf. The order appointing them as trustees has not been set aside. In the circumstances, it is contended that the beneficiaries must be deemed to have ratified the appointments made by the District Judge. In any event, it is claimed that the plaintiff has lost his right to challenge the appointments which claim is barred by limitation.

9. A number of issues have been raised by the defendants. I am however asked now first to decide two issues by way of preliminary issues, They are:

1. Is the suit maintainable having regard to the provisions of Section 92 of the Code of Civil Procedure?

2. Has the defendant No. 3 been properly joined as a defendant?

10. Section 92 of the Code of Civil Procedure does not apply to a suit unless three following conditions are fulfilled:

1) the suit relates to a trust for a public purpose of a charitable or religious nature;

2) there is a breach alleged of such trust orthe direction of the court is deemed necessaryfor the administration of such trust; and

3) the relief claimed is one or other of the reliefs mentioned in the section.

Each of these conditions must be satisfied in order that the suit may be filed in the manner provided by the section. It is to be noticed however the one cannot evade the section simply by adding certain inconsequential reliefs not allowed by the section when the suit is clearly within the scope of the section.

11. It is to be considered in the instant case whether the three above conditions have been satisfied. The trust created by the Will cannot be considered to be an out and out public trust. It directs the executors and trustees to establish and consecrate a deity and provides for its seva and pooja. The executors and trustees are further directed to perform the sradh ceremony of the settlor, his father, mother and wife at a reasonable cost not exceeding Rs. 200/- per year. To this extent it is purely a private trust. The only part of the trust which may be characterised as public is the provision for the establishment of a charitable institution to be styled as 'Srinath Sevasram' for the feeding of Hindus preferably Kayasthas of both sexes in helpless and indigent circumstances and direction on the trustees to apply the suplus income of the trust estate for feeding daily the said indigent Hindus. The surplus income referred to is the income that will remain after meeting the costs and expenses of deb seva and sradh amounting, according to the document, to about Rs. 800/-per year. It has been contended however that this provision as to the feeding of the poor does not make the trust a public charitable trust and the case of Prasad Das v. Jagannath decided by a Division Bench of this court and reported in 37 Cal. W. N. 181: AIR 1933 Cal. 519 has been cited in support of this proposition. In the cited case, by a Deed of Endowment the settlor dedicated two several premises to the seva of Sri Sri Annapurna established in one of the premises and for feeding the poor and carrying out other charitable objects. The question arose whether this provision in the deed of endowment makes the endowment a public charitable one. It was argued by Sir N. N. Sarkar that this provision about reeding the poor is part and parcel, of the dev seva and cannot be regarded as an independent charity in which any class of the public have a direct and independent interest. The court accepted this argument and held that feeding of the poor etc. are really incidental to the main purpose of the endowment, namely, the puja of the deity. The instant case, however, is different from the cited case which is clearly distinguishable. In the instant case, there are two independent trusts, one private religious, viz., establishment and puja and seva of the deity Annapurna and the other is to establish a charitable institution 'Sreenath Sevasram' for the feeding of the indigent Hindus. This last is an independent charity in which the poor Hindus, preferably Kayasthas, have a direct and independent interest. This, in my judgment, it clearly a public trust haying no connection whatsoever with the private religious trust of establishing and consecrating the deity Annapurna and making provision for its puja and seva. Having regard to the fact that the surplus income intended to be spent for the charitable purpose is a substantial portion of the total income of the trust estate, this public charitable trust cannot be characterised us unreal. The income of one of the properties leased out was stated to be Rs. 600/- per month, i.e. Rs. 7200/-, and the expenses on account of dev seva etc. of the private trust is fixed at near about Rs. 800/- per year. In the facts of the instant case it must be held that the trust created by the Will is both private and public and the public charitable trust is wholly independent of the private portion in which the indigent Hindus have acquired a direct and independent interest. I may incidentally note that the plaintiff has himself proceeded on the footing that it is a public trust, beneficiary being the members of the Hindu community. The suit is a representative suit instituted by the plaintiff for self and other members of the Hindu community interested in the trust estate. Unless the trust is a public trust in respect to which the instant suit has been instituted, the frame of the suit would have been otherwise and the plaintiff would not have instituted the suit in the manner he has done. Nor the plaintiff would apply for the sanction of the Advocate General, as indeed he did in this case though the sanction was refused. The first condition laid down has, therefore, been satisfied in the instant case, The mere fact that certain provisions of the trust are private in nature, though the remainder is a public charitable trust, will not take the case out of the provisions of Section 92 of the Code of Civil Procedure.

12. The second condition of the applicability of Section 92 is also satisfied in this case. There are allegations of breach of trust and directions of the court are invited for the proper administration of the trust. Removal of the trustees is claimed inter alia, on the allegation that they are guilty of breach of trust. The court is required to frame a scheme, inter alia, for the administration of the public charitable trust. There are prayers for the appointment of new trustees. Mr. B. K. Chaudhuri, learned counsel for the plaintiff, however, submitted that the plaintiff's case is that the so-called trustees have not been properly appointed and that, therefore, they are not trustees at all and this takes the case out of Section 92 of the Code. It has, however, been held that a trustee illegally appointed by the court and even a trustee de son tort, that is, one without any appointment who takes upon himself the management of the trust property purporting to be the trustee, is a 'trustee' within the meaning of Section 92 of the Code of Civil Procedure, (See Saiyid Ali v. Ali Jan, ILR 35 All 98, Anjuman Islamia v. Latafat Ali, : AIR1950All109 ; Jugal Kisore v. Lakshmandas, ILR 23 Bom 659; Budree Das v. Chooni Lal, ILR 33 Cal 789; and Rambilas v. Nityanand, ILR 44 All 652 : (AIR 1922 All 542 (2)). A suit for removal of such a trustee with invalid appointment or even with no appointment comes within the ambit of Section 92 of the Code.

13. The next point for consideration is whether the reliefs claimed in the suit are those set out in Section 92. That some of them are can hardly be disputed. The following prayers in the plaint for example seek reliefs of the nature as set out in Section 92 of the Code:

(1) Removal of trustee and appointment of new trustee -- Prayer (d);

(2) Framing a scheme as claimed in Prayer (e);

(3) Claim for account against the trustees (Prayer (f)).

The other prayers, in my judgment, are not the reliefs which can be claimed in a suit under Section 92. The declaration and injunction as claimed in prayer (b) and prayer (c) is on the allegation that the appointment of the defendants Nos. 1 and 3 as trustees is illegal and void. They are not proper reliefs in a suit under Section 92 of the Code. The allegations of breach of trust and mismanagement are in support of the prayer (d) for the removal of the trustees. They are not the allegations in support of the declaration and injunction claimed in prayers (b) and (c). The material allegations in support of prayers (b) and (c) are that the appointment of trustees is not in accordance with the Deed and as such void. Such a suit for declaration and injunction cannot be filed under Section 92 of the Code. The reliefs claimed in prayers (f), (g), (h) and (i) relate to the lease granted by defendants 1 and 2 to defendant No. 3. The allegation in support of these prayers is that defendants Nos. 1 and 2 not being trustees in law, had no title to grant the lease and that as such the lease is void and defendant No. 3 gets no title thereunder. There is a prayer that the Indenture of Lease be delivered up and cancelled. None of these reliefs can be claimed in a suit under Section 92 of the Code, I entirely agree with Mr. R. N. Mitter, learned counsel for the lessee, that these reliefs are totally outside a suit under Section 92 of the Code. To sum up, therefore, some of the reliefs claimed are proper reliefs in a suit under Section 92 and the others cannot be claimed in a suit under Section 92 of the Code.

14. As stated before, the plaintiff did apply for sanction of the Advocate General to institute the suit under Section 92 of the Code, but that sanction was refused. The reason, I apprehend, for such refusal is that a number of reliefs claimed in the suit cannot be claimed in a suit under Section 92 of the Code. If a party intending to institute a suit under Section 92 of the Code, improperly introduces in the plaint of the intended suit reliefs that are not permitted by the section, he can hardly complain that sanction, though applied for, has been refused. In my judgment, the sanction of the Advocate General was rightly refused in the instant case, inasmuch as most of the reliefs in the plaint could not be claimed in a suit under Section 92 of the Code.

15. It appears to me, on going through theplaint, that two cases have been made, one ofwhich can only be instituted in the manner indicated by Section 92 of the Code. That case relates tothe trust which in my judgment, is created, interalia, for a public purpose of a charitable nature.There are allegations that the trustees, the validityof whose appointment has been challenged, aremismanaging the trust property and are guilty ofbreach of trust and that the interference of thecourt is necessary by removing the delinquenttrustees and appointing proper trustees in their placeand stead, by framing a scheme of management, bygiving other directions in the matter and directingenquiries and accounts against the delinquenttrustees. This case can only be made in the waylaid down by Section 92 of the Code. As admittedlythe instant suit has not been instituted in compliance with the provisions of Section 92 of the Code, thiscase made in the plaint cannot be entertained. Theplaint, however, indicates another case which is ofand concerning the lease granted by the trustees --defendants Nos. 1 and 2 -- to defendant No. 3.The set of reliefs claimed in the suit and concerning the lease are substantial. This case is clearlydistinct and separate from the other case. Thereliefs claimed in respect to the lease cannot beobtained in a suit under Section 92 of the Code andhave to be determined in a suit instituted in theordinary way. I cannot see how I can dismiss thesuit as a whole involving the dismissal of the caseof and concerning the lease, merely because someof the reliefs cannot be obtained except in a suitunder Section 92 of the Code. There is neither reasonnor authority to compel me to take this course anddismiss the suit as a whole, even though the claimrelating to the lease can well be determined in asuit instituted in the ordinary way. The fact thatsome of the reliefs cannot be granted because ofthe non-compliance of the provisions of Section 92 ofthe Code cannot disentitle the plaintiff to get otherreliefs which can well be claimed in an ordinarysuit. The suit, in my judgment, cannot be dismissed, though the plaintiff is debarred from claimingsome of the reliefs in this suit which can only beclaimed in a suit framed in compliance with theprovisions of Section 92 of the Code.

16. There can hardly be a question that in a suit for the determination of disputes of and concerning the lease the lessee is a necessary and indeed the most important party. Such a suit cannot proceed in the absence of the lessee. Had the suit been instituted under Section 92 of the Code, then the question could well have been raised whether in such a suit under Section 92 the lessee could be impleaded and any relief could be granted against him in such a suit under Section 92. That is, however, not the case before me. If the suit is to be heard and the question is to be debated as to the validity of the lease, there can hardly be any question that defendant No. 3 is a necessary party.

17. The issues raised are answered accordingly, and the suit must proceed. I may note that I have not decided whether any of the reliefs that have been claimed can be granted. Indeed, I am not called upon to decide that question now. Costs are reserved.


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