M. Chockalingam, J.@mdashThis appeal challenges an order of the learned Single Judge of this Court made in Application No.938 of 2003 seeking revocation of the leave originally granted in Application No.2918/2002 in C.S. No. 579 of 2002. 2.The suit was filed by the plaintiffs for,
(a) framing a scheme for the proper administration of the first defendant trust by appointing two more persons who are office-bearers of the first plaintiff association to be trustees of the first defendant''s trust along with the existing trustees.
(b) a direction to the trustees of the first defendant trust to furnish copies of the trust deeds and render true and proper account relating to the trust in so far as it relates to the corpus fund and investment made and the interest received every year and the amount reimbursed towards medical expenses and the total number of persons to whom such reimbursement has been made and also give true account/particulars relating to the amount given towards medical, educational assistance of all the beneficiaries including the wards of the employees with particulars thereof upto 31.3.2002 and
(c) a declaration that a portion of the income to be fixed by this Court after looking into the accounts from the trust fund to be paid towards the pension payable to the retired employees in addition to the existing meagre pension paid to the employees.
2. While doing so, an application was filed in Application No.2918 of 2002 under Sec.92 of the CPC seeking the leave of the Court. On being granted, the suit was taken on file in C.S. No. 579 of 2002. For revoking the leave so granted, the first defendant filed Application No.938 of 2003. On enquiry, the learned Single Judge allowed the application for revocation of the leave already granted and also dismissed the application wherein leave was originally granted.
3. Advancing arguments on behalf of the appellants, the learned Counsel Mr.N.G.R.Prasad would submit that the original trust deed though asked for, was not made available to the plaintiffs, and hence, they were not in a position to produce the same; that however, the trust deed was produced by the first defendant, and hence the adverse inference drawn by the learned Single Judge on the non-production of the trust deed was not warranted; that the very nomenclature of the trust deed i.e., Ponds'' Employees'' Welfare Trust, would indicate that the beneficiaries were also included; that it was also for the benefit of the society; that under the circumstances, it was not correct to urge or hold that it would be only for the benefit of the employees in service and not retired; that the expression ''beneficiaries'' referred to three categories of employees namely (a) employees on the date of the trust deed; (b) employees who would come in employment after the date of the document; and (c) employees who have been in continuous service of the company upto the date not earlier than two years from the date of the document and their respective spouses, children (natural or adopted) and dependents; that the trust deed took into the last category of employees namely retired employees, their spouses, children and dependents, and hence it is not correct to state that as per the definition of "trust" employees and beneficiaries, it was only those persons who were in employment of the company alone and they would be protected under the trust in question and not an outsider; that the beneficiaries were not only the employees of the company, but also the retired employees, their spouses and their dependents; that to construe a public trust, it was not necessary that a public at large should be the beneficiaries and it could be confined to certain sections of public i.e., persons who are fluctuating body; that it is not correct to state that because the trust was confined to the staff of the company, past and present and their dependents, that would not amount to public trust; that the employees past and present, their spouses, children and dependents were fluctuating body of persons and definitely form a section of the public; that the decision of the Supreme Court referred to in the order, had absolutely no bearing with reference to the case on hand; that a fluctuating body of a private individual such present and future officers and members of staff could be part of general public or any section of public; that it is not correct in recording a finding that the trust in its clear length and breadth cover only the employees in service: that because of Clause XXVIII of the trust deed, it cannot be stated that there was a clear indication that an employee going out of office would not be a beneficiary from the company; that the very reading of the clause in the trust deed would clearly indicate that the public donations could be accepted; that the persons are also the members of the society and public at large; that under the circumstances there would not be any difficulty or impediment in holding that the trust was a public trust, and hence the order of the learned Single Judge has got to be set aside and the appeal be allowed.
4. The learned Counsel for the respondents Mr.Sathish Parasaran would submit that the very foundation of the claim in the plaint was the trust deed; that whether it could be called as a public trust or not has got to be seen by taking into consideration the recitals in the trust deed, which is a sine-qua-non for attracting Section 92 of the Code of Civil Procedure; that on proper interpretation of the trust deed in question, it could be safely construed that there was no public charitable at all; that under the circumstances, Sec.92 of the Code would not be attracted; that even the very reading of the plaint would clearly disclose that there is no right to sue, and hence the Court in exercise of its power under Order 7 Rule 11 of the Code must reject the plaint; that even from the trust deed, it would be quite clear that nowhere it is stated that the object of the trust is of public charitable nature; that apart from that, the plaintiffs are not persons having any interest in the trust; that even assuming it to be a public charitable one, they are only retired employees, and the retired employees were not the beneficiaries under the trust, and hence the order of the learned Single Judge has got to be sustained.
5. The learned Counsel in support of his contention relied on the decisions reported in AIR 1977 SC 242 = (1978) 91 L.W. 21 S.N. (T. Arivanandam v. T.V. Satyapal) and in (1942) Income Tax Reports Vol.X 512 (mercantile Bank Of India (Agency) Ltd.).
6. The only question that would arise for consideration in this appeal is whether the trust in question is a public charitable one enabling the appellants/plaintiffs to seek for leave under Sec.92 of the Code of Civil Procedure?
7. The Court paid its anxious consideration on the submissions made and looked into the materials available and in particular, the trust deed in question.
8. It is well settled proposition of law that a suit under Sec.92 of the CPC is of a special nature which presupposes the existence of a public trust of a religious or charitable character. In order to maintain a suit under Sec.92, apart from the above, the suitor must prove that he has got an interest in the trust. As to the question what should be the interest of the persons who instituted a suit, this Court had an occasion to consider the conditions necessary for filing a suit under Sec.92 of the CPC and held as follows:
"Pre-existence of a public trust of a charitable or religious nature is essential to maintain a suit under Sec.92 of the Code of Civil Procedure. Persons interest must be persons whose interest must be clear, substantive and not a mere remote, fictitious and contingent interest."
9. The very reading of the reliefs sought for would clearly indicate that they rested on the terms of the trust deed. The first defendant has produced the trust deed. On perusal of the same, it could be seen that the document has come into existence on 15.5.1980, and there was a supplemental deed dated 15.9.1980. The trust was a creation of M/s.Ponds India Limited, and the trustees three in number, were also named therein. The trust itself is named as Ponds'' Employees'' Welfare Trust. It would be indicative of the fact that the very intention of creation of the trust was only for benefiting the employees of Ponds India Limited. The plaintiffs in the suit are Ponds India Limited Retired Employees'' Welfare Association and another. What was all contended by the plaintiffs before the learned Single Judge and here also is that though the trust was named as Ponds'' Employees'' Welfare Trust, it would include persons other than the employees of Ponds Company. A clear reading of the trust deed would also indicate that it was only meant for the welfare of the employees of the trust and for nobody else including the retired employees. The object of the trust as could be seen, was to provide education, medical facilities. With that object, the trust was created, and for that purpose, certain properties were transferred and delivered to the named trustees. Since the trust itself is named as Ponds'' Employees'' Welfare Trust, it becomes necessary to find out the definition of employees as shown in the trust deed. Clause 1 (a) of the trust deed defines employee as a whole-time permanent employee of the company, and hence it leaves no doubt. From the name of the trust and the definition given to the employee, it would be quite clear that anybody outside the definition of employee cannot claim any benefit or cannot be allowed to say that they were also within the definition of employee. If such a contention has got to be allowed, that would be traversing beyond the intention and object for which the trust was created, which cannot be allowed.
10. The other contention put forth by the appellants'' side that once the benefits are available to the beneficiaries, why it cannot be allowed to employees who have already retired cannot also be countenanced. Clause 1 (b) defines ''beneficiaries'' as the employees of the company who are in the employment of the company at the date of the presents and who will be in employment of the company after the date of the presents and who have been in continuous service of the company upto the date and their respective spouses, children and dependents. This would clearly mean the beneficiaries who can have the benefit, can only be the spouses, children and dependents of the employee. A perusal of the Causes in the entire trust deed would indicate that nowhere it gives any indication contra to hold that the employees would include the retired persons also. The learned Counsel for the respondents has relied on a decision of the Apex Court reported in (1996) Income Tax Reports Vol.217 Page 699 (Commissioner Of Income Tax v. Kamia Town Trust). Nothing that the beneficiaries of the trust as it stood then prior to 1955 rectification was only the workmen, staff and other employees of the company, and the use of the word "workmen in general" in the deed as it stood rectified in the year 1945 cannot connote a larger body of humanity, the Supreme Court held that the trust was only a private trust and not a public trust. In that case, the Apex Court has laid down the law as follows:
33. However, this conclusion of ours does not end the controversy centering round the aforesaid clause. There are two clear hurdles in the way of Shri Verma for the respondent which militate against his submission that the said clause when read as a whole does create a public charitable trust in favour of workmen in general. The first hurdle is that the term "workmen in general" as employed in the clause is too general and vague but even assuming that in the context of the residential quarters, chawls or buildings to be constructed for them on the lands situated at Kanpur which are settled in trust by me Settlor Company, it would refer to workmen in Kanpur town, even then the more substantial hurdle in the way of the respondent is projected by the fact that there is an obligation cast on the trustees to construct these residential quarters, chawls or buildings in particular for the workmen, staff and other employees of the Company or other allied concerns under the management of and in which the directors of the Company may for the time being be interested and for their respective families and dependents. In the light of the words "in particular" as found in this clause, Dr Gauri Shankar, learned Senior Counsel for the Revenue, rightly submitted, that they represent a scheme of priority for workmen of me Settlor Company and not a scheme of preference. In other words the trustees are bound under an obligation to construct residential quarters etc. first for the workmen or employees of the Settlor Company or its allied concerns. They have no choice in the matter. They cannot in their discretion select an outside workman as recipient of the benefit under the scheme of the trust deed. In effect the general class of beneficiaries constituted by the words "workmen in general" gets whittled down and circumscribed by the words "in particular for workmen of the company etc." Thus in substance it becomes a trust for the benefit of a well-defined smaller class of beneficiaries, namely, employees or workmen of the Company and its allied concerns and it fails to meet the requirement of a genuine or public or charitable trust. We are in agreement with this submission of Dr Gauri Shankar. Once such an obligation is cast on the trustees the public character of the endowment gets whittled down and in substance becomes the settlement for an identified group of persons. In this connection we may profitably refer to a Division Bench judgment of the Bombay High Court in the case of CIT v. Walchand Diamond Jubilee Trust (1958 34 ITR 228) wherein Chagla, C.J., spoke for the Bench. In that case the question was whether the provision made in me trust deed to utilise me accumulated income Of the property of me trust on charitable objects like giving scholarships to desiring students or giving medical reliefs of the nature and kind such as starting maternity homes, etc., or giving monetary help to me poor and needy persons and for providing relief to the poor and distressed in time of famine would get adversely affected and would cease to be a charitable object if preference was to be given to such persons as are eligible under the aforesaid provisions who are at the time or have in the past been employees of Premier Construction Co. Ltd. and of the associated companies and their relatives and dependents as the trustees may in their discretion think expedient and proper.
11. In the instant case, at no stretch of imagination, either the trust in question can be considered as a public trust, or the association which was constituted by the retired employees, can be allowed to say that they have got any interest much less clear or substantive in the trust in question. Even assuming that the retired employees were taken care of by the trust, at no stretch of imagination, it can be taken that it would confer a right on them to file a suit calling the same as a public trust or they are the persons having interest over the same. Hence the learned Single Judge was perfectly correct in dismissing the application for leave and revoking the leave originally granted. The order of the learned Single Judge does not suffer from any infirmity or illegality. In the result, this original side appeal fails, and the same is dismissed confirming the order of the learned Single Judge. No costs.
