K. Govindarajan, J.@mdashThe plaintiffs filed the above Appeal having aggrieved by the order, dated 27.6.2003, rejecting their Application, in
Application No. 1650/2003 seeking leave to sue the respondents/defendants and to institute the suit under Sec. 92 of Code of Civil Procedure.
2. The plaintiffs filed the suit under Sec. 92 of the CPC seeking a decree to remove defendants 1 to 8 from the Chennai Vazal Duraiyur Nadar
Uravin Murai Magamai Sangam, directing the defendants to deliver possession of the land and building at Door No. 80, S.R.P. Kovil Street,
Agaram, Chennai.82 to the 1st plaintiff and its members, directing the defendants to return the books, Bank Pass Books, cheques, ledgers, Bill
Books and other records of the Sangam to the plaintiffs and directing defendants 1 to 8 to render the accounts relating to the income from the
Kalyana Mandapam and other receipts received on behalf of the Sangam. Since the plaintiffs have to obtain leave from the Court before
prosecuting the suit filed under Sec. 92 of the Code of Civil Procedure, they filed the Application No. 1650/2003. The learned Judge in the order
dated 27.6.2003 rejected the said Application on the ground that the Sangam is not a public trust and therefore the Application is not maintainable
as the suit cannot be sustained under Sec. 92 of the Code. Aggrieved against the same, the plaintiffs filed the above Appeal.
3. Pending appeal, the President of the Sangam, Mr. A.S. Annamalaichamy Nadar died and the plaintiffs filed an Application in C.M.P. No.
16946/2003 to substitute Mr. Durairaj Nadar in the place of A.S. Annamalaichamy Nadar on the basis that he was newly elected, after the death
of Annamalaichamy Nadar, on 24.9.2003. Even before filing of the above said Application, the respondents filed another Application in C.M.P.
No. 15928/2003 to dismiss the above Appeal on the ground that the Appeal itself has become infructuous and the Appeal is not maintainable as
Annamalaichamy Nadar died, and without any representation on behalf of the Sangam by a President, the suit cannot be sustained as the Sangam
alone can be construed as an aggrieved body.
4. Learned Senior Counsel appearing for the appellants submitted that the learned Judge has decided the Application only on the basis of the
averments mentioned in paragraph No. 3 of the plaint without reading paragraph Nos.4 and 5 of the plaint, which, according to him, establish that
the appellants/plaintiffs have come forward with the suit only on the basis that the sangam is a public trust. He also submitted that even if the
President of the 1st plaintiff-sangam died, the other plaintiffs can independently sustain the suit in view of Sec. 92 of the Code of Civil Procedure.
In respect of the Application in C.M.P. No. 16946/2003, learned Senior Counsel submitted that the said Application is filed on the basis that after
the death of Annamalaichamy Nadar, Durairaj Nadar has been elected as President of the Sangam. Though the respondents/defendants have
challenged the validity of the said election, the same has to be gone into on the basis of evidence and so the rejection of the said Application at the
threshold cannot be sustained.
5. Learned Senior Counsel appearing for the respondents/defendants submitted that taking into consideration the scope of the relief sought for in
the suit, without the Sangam being a party, the suit cannot be sustained, and since the said Annamalaichamy Nadar died, the suit has to be
dismissed. Learned Senior Counsel also submitted that without seeking a relief for declaration with respect to the status of the trustees, the other
reliefs sought for in the suit cannot be sustained. He further submitted that even according to the appellants/plaintiffs, the respondents/defendants
are not the members of the Sangam, as they have left the Sangam, and the suit as framed against the respondents/defendants cannot be sustained.
On that basis, learned Senior Counsel submitted that the order of the learned Judge does not warrant any interference.
6. The points for consideration in this Appeal are:-
(1) Whether the plaintiffs 2 to 6 can sustain the suit in view of the contentions raised in C.M.P. No. 15928/2003?
(2) Can the plaintiffs sustain the Application in C.M.P. No. 1650/2003 to leave to sue under Sec. 92 of the Code of Civil Procedure?
7. Before dealing with the merits with reference to the order passed by the learned Judge, we are inclined to deal with the C.M.Ps., filed on behalf
of the appellants/plaintiffs and respondents/defendants. The Application in C.M.P. No. 16946/2003 was filed subsequent to the Application in
C.M.P. No. 15928/2003 filed by the respondents, to dismiss the Appeal on the ground that the said Annamalaichamy Nadar, the President of the
Sangam died. In C.M.P. No. 16946/2003, the appellants/plaintiffs have come forward with the prayer to substitute one Durairaj Nadar as the
President of the Sangam, as he has been elected as such. Though the learned Senior Counsel appearing for the respondents raised an objection
regarding the election of the said Durairaj Nadar, the same cannot be gone into at this stage. Moreover, since the appellants/plaintiffs have come
forward with the Application in C.M.P. No. 16946/2003, the objection raised in C.M.P. No. 15928/2003 to dismiss the Appeal is not available
now. Hence C.M.P. No. 16946/2003 is ordered giving liberty to the respondents/defendants to raise their objection regarding the validity of the
election of Durairaj Nadar in the suit. In view of the order passed in C.M.P. No. 16946/2003 allowing the same, C.M.P. No. 15928/2003 is
dismissed.
8. Before dealing with the contentions raised on behalf of the appellants/plaintiffs and the respondents/defendants on merits, we would like to deal
with the scope of Sec. 92 of the Code.
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 the 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.
The above said provision is provided to give protection to the public trust of a charitable and religious nature from being subjected to harassment
by suits filed against them. The following conditions have to be specified to apply Sec. 92 of the Code.
(a) There should be a trust created for public purpose of charitable or religious nature.
(b) In case of any alleged breach of such trust, direction of the Court is necessary for administration of such a trust;
(c) The suit must be representative one on behalf of the public and is not by individuals for their own interest;
(d) The relief claimed in the suit must be one or other reliefs mentioned in the provision;
The expression ""charitable trust of a public nature"" contemplates the trust to be both charitable one and a public one, the beneficiaries must be
public though not public at large, yet a classified section of it, no specified individuals must be unascertained persons. It is no doubt true, the Court
prima facie satisfies either of breach of trust or of necessity for obtaining direction of the court before granting the relief. The Apex Court in the
decision in Charan Singh and Another Vs. Darshan Singh and Others, , decided the scope of Sec. 92 of the Code and further held that
maintainability of the suit depends upon the allegations in the plaint and does not fall for decision with reference to averments in the written
statement.
9. Even in the decision in Swami Paramatmanand Saraswati and Another Vs. Ramji Tripathi and Another, , the Apex Court found that before
taking evidence in trial, it is only the allegations in the plaint that should be looked into in the first instance to see whether the suit falls within the
ambit of Section 92 of the Code.
10. Though the learned Senior Counsel appearing for the respondents/defendants submitted that appellants/plaintiffs 2 to 6 cannot sustain the suit
as contemplated under Sec. 92 of the Code, even individuals, two or more can file such a suit for the benefit of the beneficiaries who are classified
group of uncertain persons.
11. On the basis of the above said principles of law with respect to the maintainability of the suit under Sec. 92 of the Code, now we have to deal
with the present case, on the basis of the contentions raised before us.
12. The learned Judge rejected the case of the appellants/plaintiffs'' application No. 1650/2003 to leave to file the suit mainly on the ground that
there is nothing in the pleadings that there was a public trust and the public trust was created or that the property was impressed with the character
of public trust as set out in paragraph 3 of the plaint. As rightly submitted by the learned Senior Counsel appearing for the appellants/plaintiffs, the
learned Judge has not appreciated paragraph Nos.4 and 5 of the plaint, which reads as follows:-
4. The plaintiffs submit Sangam was registered under the Tamilnadu Societies Registration Act 1975 under the Registration No. 280 of 1980 the
main objects of the Sangam are among other things to work for the welfare of the Duraiyur Nadar people residing at Chennai, to provide free
education and for providing assistance to the handicapped persons and economically downtrodden people and to provide free education and
financial assistance for the children of those people who suffered due to fire accident, flood and other natural calamities and to help the repatriates
and orphans. The aims of the Sangam are among other things to provide education to the poor and needy. The objects of the Sangam are
educational and charitable in nature and the weaker section of the general public is beneficiaries under the Sangam. The Sangam registered under
the Tamilnadu Societies Registration Act 1975 is a public trust since the beneficiaries under the Sangam are the Duraiyur Nadar People and
economically and socially weaker section of the general public. The Sangam is having bank accounts at MCC Bank, Jawahar Nagar, Chennai.82
and Tamilnadu Merchantile Bank Limited, Sembium, Chennai.11. There are 105 members in the Sangam.
5. The Sangam disposed of the above mentioned property and purchased vacant land at No. 80,S.R.P.Kovil Street,Agaram,Chennai.82 in the
name of the Sangam in 1981 and constructed a Kalyana Mandapam thereon by availing a loan of Rs.9,00,000/- from Subha Mangalam Benefit
Fund. The Kalyana Mandapam has been getting rental income regularly. The Sangam repaid the loan in 72 instalments to the Subha Mangalam
Benefit Fund out of the rental income from Kalyana Mandapam. Further the Sangam constructed a ''Kopuram'' for the Padrakaliamman temple at
Duraiyur and carried on several other welfare measures including installing idols in the temples and purchased land for the nandhavanam at
Duraiyur village and constructed a Kalyana Mandapam at Duraiyur. Every year Sangam contributed large amounts for the ChitraiThiruvizhla
celebrated at Duraiyur. The Sangam also providing the monetary assistance for the education of the poor and needy.
13. The suit is not filed to vindicate the individual rights but to vindicate the welfare of Thuraiyur Nadar people residing in Chennai, who are the
beneficiaries of the charitable trust created. Even from the object of the 1st plaintiff-sangam as mentioned in paragraph 4 of the plaint, it is clear that
the Sangam was formed with a view to do charity to the beneficiaries therein providing free education, assistance to the handicapped and
economically downtrodden persons and to provide financial assistance for the children of those people who suffered due to fire accident, flood and
other natural calamities. Paragraph 5 of the plaint also deals with as to how the Sangam is getting income for the purpose of doing charity.
14. But, the learned Judge rejected the Application, as stated already, only by reading paragraph No. 3 of the plaint and came to the conclusion
that there is nothing in the pleadings to vindicate that there was a public trust and the public trust was created.
15. The next ground on which the Application was dismissed is that the appellants/plaintiffs are having the remedy under the Tamil Nadu Societies
Registration Act, 1975, for setting right the wrong and the appellants herein cannot on that score seek leave to sue under Sec. 92 of the Code. In
the plaint it is specifically stated that defendants 1 and 2 who are the Secretary and Treasurer of the Sangam, have been in-charge of the Kalyana
Mandapam and collecting the rents till date of the suit, and taking advantage of the possession of the Kalyana Mandapam, the defendants 1 and 2
along with the other defendants registered a private Trust in order to misappropriate the properties of the Sangam. As stated already in paragraph
Nos.4 and 5 of the plaint, from the income derived from the said Kalyana Mandapam, the 1st plaintiff-sangam was doing charities to the welfare of
the beneficiaries. Even in paragraph No. 11 of the plaint, it is stated about the misfeasance and malfeasance which are being committed by
defendants 1 and 2 in the course of the management of the Sangam in order to grab the immovable and movable properties of the Sangam. On that
basis, the suit is filed to remove defendants 1 to 8 from the Sangam, for a decree directing the defendants to deliver possession of the land and
building at No. 80, S.R.P. Kovil Street, Agaram, Chennai.82 to the 1st plaintiff-sangam and for accounts relating to the income from the Kalyana
Mandapam and other receipts received on behalf of the Sangam. The said prayer certainly would come under the categories mentioned under Sec.
92(1) of the Code. The correctness of the same has to be gone into only at the time of trial.
16. Since the learned Judge has not decided the issue on the basis of the relevant averments in the plaint, we appreciated the entire pleadings to
decide the sustainability of the Application filed by the appellants under Sec. 92 of the Code.
17. The learned Judge is not correct in concluding that the appellants/plaintiffs have come forward with the suit only making complaint regarding the
violation of the provisions of the Tamil Nadu Societies Registration Act, but they have come forward with the specific plea in the plaint that the
property of the Sangam, namely, Kalyana Mandapam, which was constructed to get income to do charity to the beneficiaries mentioned in the
object of the Sangam, who are classified group of uncertain persons, but it has been taken over by a private Trust. So the said complaint cannot be
construed only as violation of the provisions of the Tamil Nadu Societies Registration Act, 1975 but the nature of relief sought for has to be gone
into only by the civil Court.
18. For all the reasons stated above, C.M.P. No. 16946/2003 is allowed and C.M.P. No. 15928/2003 is dismissed and the order passed by the
learned Judge in Application No. 1650/2003, dated 27.6.2003 is set aside and Application No. 1650/2003 is allowed. Consequently, this Appeal
is allowed. No costs.
