Skip to content


Manaharmayum Tolen Sharma and anr. Vs. Sakhi Gopal Devta - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGuwahati High Court
Decided On
Case NumberSecond Appeal No. 33 of 1973
Judge
Reported inAIR1980Gau16
ActsCode of Civil Procedure (CPC) , 1908 - Section 92
AppellantManaharmayum Tolen Sharma and anr.
RespondentSakhi Gopal Devta
Appellant AdvocateL. Nandakumar Singh, Adv.
Respondent AdvocateW. Kulabidhu Singh, Adv.
DispositionAppeal dismissed
Cases Referred(Syed Mohd. Salie Labbai v. Mohd. Hanifa). Thus
Excerpt:
- .....who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of an interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. xxxxx'the learned counsel submits that clause (h) is very wide and includes any further or other relief, not envisaged in clauses (a) to (g) and the relief of declaration of title is covered by clause (h). in the.....
Judgment:

K.N. Saikia, J.

1. This defendants' Second Appeal is against the judgment and decree dated 24-5-1973 of the District Judge, Manipur in Civil Appeal No. 21 of 1972, confirming the judgment and decree dated 19-4-1972 of the Munsiff, Imphal West in O. S. No. 6l of 1971.

2. In O. S. No. 61 of 1971, the plaintiff Sakhi Gopal Devta, an idol installed at Khurkhul Sevok Leikai, by its next friend Usham Rupachandra Singh, sued the defendants Manoharmayum Tolen Sharma and his son Manoharmayum Ra-jen Sharma, claiming relief of declaration of its title to the suit land and cancellation of the name of defendant No. 2 in the land records by setting aside the order dated 10-11-1965 passed in Mutation Case No. 272/A.S.O./I.W./1965. The defendants contested the suit by filing a written statement denying the allegations.

3. The learned Munsiff decreed the plaintiff's suit holding that the plaintiff has title to the suit land and ordering that the mutation order passed in the Mutation Case No. 272/A.S.O./I.W./1965 be set aside and the name of defendant No. 2 be cancelled in the land records in respect of the suit land. From the aforesaid judgment, the defendants appealed to the District Judge, Manipur at Imphal, who, by his judgment dated 24-5-1973, held that the Deity's temple was there on the suit land. Both the appellants were residing in the house provided for Shebait. Under the circumstances, their possession could not be taken to be in their individual right but as Shebait of the respondent. Under the circumstances, the learned District Judge held that the suit could not be held to be bad in view of the provisions of Section 34 of the Specific Relief Act. The appeal was accordingly dismissed. Hence, this second appeal.

4. Mr. L. Nandakumar Singh, the learned counsel appearing for the defendant-appellants, fairly submits that this second appeal may hot be maintainable on concurrent findings of facts. The learned counsel, however, submits that both the learned Courts below ought not to have proceeded with the suit, inasmuch as, it involved a property belonging to a public trust and it ought to have been instituted in conformity with the provisions of Section 92 of the Code of Civil Procedure. Asserting that it is a question of law affecting jurisdiction, the learned counsel submits that though the suit is for declaration of title and for cancellation of mutation, since it involves the property belonging to a public trust, it falls clearly under Clause (h) of Section 92(1) C. P. C. Section 92 of the C. P. C. is as follows :

'92. Public charities -- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature,or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree --

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of an interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

xxxxx'

The learned counsel submits that Clause (h) is very wide and includes any further or other relief, not envisaged in Clauses (a) to (g) and the relief of declaration of title is covered by Clause (h). In the alternative, the learned counsel submits that it may also come under Clause (c).

5. Mr. W. Kulabidhu Singh, the learned counsel appearing for the respondent, submits that it was not the case of the defendants that the property belonged to a public trust. On the other hand, it was their definite case that the property belonged to a family idol in private trust, and, therefore, it does not lie in the mouth of the defendants now to submit that the property belonged to a public trust. The learned counsel further submits that even if as an alternative plea, it may be taken to have been the plea of the defendants that the property belonged to a public trust, the suit will not fall within any of the Clauses (a) to (h) of Section 92, C. P. C.

6. The only question that offers for determination in this second appeal, therefore, is whether the provisions ofSection 92 C. P. C. are applicable to the suit and, if so, whether the learned Courts below acted illegally in proceeding with it? The parties have agreed that the properties belong to a public trust in view of the concurrent findings of the Courts below. Section 92, mainly envisages the protection of interests of public trust, when jeopardised by the trustees by misuse of their positions of utmost good faith. Therefore, this section puts an additional responsibility on the State through the Advocate General in the interest of protection of public trusts of charitable or religious nature for the benefit of the public. It enables the interested persons to sue with the consent of the Advocate General. The suit must be for an alleged breach of trust or under circumstances necessitating direction from the Court regarding administration of the trust and the relief sought must fall within one or more of the Clauses (a) to (h) of Section 92. Section 92 in terms envisages, therefore, only certain types of suits, as enumerated in Clauses (a) to (g). Clause (h) is more or less the winding up clause which had to be read in the context of generality of the foregoing clauses. Thus a suit for declaration of title by the Deity against defendants, one of whom has illegally got a part of its property mutated in his name in the Revenue Records is not envisaged by the section, in the absence of relationship of trustee and beneficiary in relation to the trust.

7. In AIR 1928 PC 16 (Abdul Rahim v. Abu Mahomed Barkat Ali Shah), the Privy Council had occasion to interpret Clause (h) of Section 92, and it was held :

'The words 'further or other relief in Clause (h) must on general principles of construction be taken to mean relief of the same nature as in Clauses (a) to (g) and they do not mean any relief other than those in (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Where a suit relating to religious endowment does not claim any such relief as is specified in Sub-section (1), Section 92, the section is no bar to the maintainability of the suit without the sanction of the Advocate-General and in the Court of the Subordinate Judge instead of the Court of the District Judge.'

The Privy Council further observed that the Legislature does not intend to include relief against third parties in Clause (h) under the general words 'further or other relief.' This interpretationwas followed in AIR 195? SC 143 (Prag-dasji v. Ishwarlalbhai). Their Lordships of the Supreme Court, in this case held :

'In a suit framed under Section 92, the only reliefs which the plaintiff can claim and the Court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it; but when the case of the plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.'

8. In AIR 1967 SC 1044, Biswanath v. Sri Thakur Radha Ballabhji, the Supreme Court held:

'It is settled law that to invoke Section 92 of the Code of Civil Procedure, 3 conditions have to be satisfied, namely, (i) the trust is created for public purpose of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Code of Civil Procedure'.

In Harendra Nath v. Kaliram Das, AIR 1972 SC 246, the Supreme Court reiterated that --

'A suit under Section 92 is of a special nature which presupposes the existence of a public trust of a religious and charitable nature. Such suit can proceed only on the allegation that there is a breach of trust or that directions from the Court are necessary for the administration of the trust. In the suit, however, there must be a prayer for one or other of the reliefs that are specificallymentioned in the section. Only then the suit has to be filed in conformity with the provisions of Section 92.'

In AIR 1975 SC 371, Charan Singh v. Darshan Singh, it was held that the maintainability of the suit under Section 92 depends upon the allegations in the plaint and does not fall for decision with reference to the averments in the written statement. The above principles were also followed in AIR 1976 SC 1569 (Syed Mohd. Salie Labbai v. Mohd. Hanifa). Thus, a suit by an idol for the declaration of its title to the properties in the suit against the defendants, who claimed personal interest in the same is not covered by the provisions of Section 92.

9. In Varadachari's Law of Hindu Religious and Endowment -- 1968 Edition, page 236, the kinds of suits outside Section 92 C. P. C. had been enumerated as follows :

'(a) a relief praying for a declaration that the properties in suit are trust properties does not come under the section. When the defendant denies the existence of a trust, a declaration that the trust does not exist might be made as ancillary to the main relief claimed under the section if the plaintiff is entitled to it. But a declaratory decree cannot be given where there was no cause of action for the suit

(b) A suit for a declaration that the alienation of trust property is invalid and for restoration of possession of such property to the trust.

(c) A suit by an idol for declaration of its title to the properties in the suit against a defendant who claims a personal interest in the same.

(d) A suit between co-trustees for accounting.'

10. From the foregoing enunciation of the law by the Privy Council as well as the Supreme Court, it appears to be settled that a suit for declaration of title in favour of a deity against persons, who claim interest adverse to the deity as in the instant case is not covered under any of the clauses of Section 92. The submission to that effect made by the learned counsel for the appellants must, therefore, be rejected.

11. No other point having been raised in this Second Appeal, the same stands dismissed. Under the facts and circumstances of the case, the parties are left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //