SWAMI PARMATMANAND SARASWATI & ANR. versus RAMJI TRIPATHI & ANR.

SWAMI PARMATMANAND SARASWATI & ANR.

RAMJ[ TRIPATHI & ANR. Augusi 21, 1974

[A. N. RAY, C.J. AND K. K. MA THEW, J .l

Code of Civil Procedure (Act 5 of 1908) s. 92-Suit undt:r-Tcsts for.

The head of math, executed will by which he nominated panel of four persons in order of choice to succeed him as head. After his death. the first respondent, who was the first in the panel, accepted the- office. But section of the worshippers installed K. an outsider, as the head of the math. Th!rea.fter, the appellants, after obtaining the permission of the Advocate Gene-ral, filed the suit under s. 92. C.P.C., against the first rtspondent. They allege,! ~~~n~h~i~~:i~;dst~~:doffm\~~/1~~~ f~~ fi~:t er~~~d~~ h1~ :~il~h~ere~~isi~~ learning in Sanskrit and the Vedas; that the first respondent was therefore not qualified person; and that the first respondent had committed breach of trust of the math properth:s. The appellants prayed for declaration that K was the duly installed head of the math, and in the alternative to appoint any other competent person as head of the math. They also prayed for the vesting of the properties of the math in the new head, for rendition of accounts by the first respondent, and for direction for. the administration of the trust prop:rties. The trial court and High Court he·ld that the suit was only for the vindication of the right of K and was therefore not maintainable under s. 92 and Jis-rniss·.::d the suit.

Dismissing the appeal to this Court,

HELD· : (I) This Court would not dis~urb the: finding that the suit was primarily one for declaration that K was the duly installed head of the math especially when the allegations in the plaint are reasonably susceptible of being so read. [SOOE-G]

(2) suit under s. 92, C.P.C., is suit of special nature which pre·sup-poses the existence of public trust of ~ religious or charitable character. \.Yhen two or more persons interested in the trust bring suit purporting to be under the section the question whether the suit is to vindicate the personal or individual right of third person or to assert the right of the public ..must be decided after taking into account the dominant purpose of the suit in the light of the allegations in thei plaint. The sui~ can proceed only on the allegations that there was breach of such trust, or that the direction of the court is necessary for the administration of the trust, and the plaintiff must pray for one or more reliefs that are mentioned in the section. If the allegation of breach of trust is not subsiantiated or the plaintiff had not made out case for any direction by the court for the proper administration of the trust, the very foundation ot the suit would fail; and, even if all the other ingredients of suit under s. 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking declaration of their individual ('Jr person~! rights or the individual or personal rights of any other person or persons in whon1 they are interestod then the suit would be outside the scope of s. 92. \Vhen the right to the office of the_tru'itees is a·sserted or denied and r{'lief asked for on that basis, the suit falls outside s. 92. There is no reason to think that whenever suit is brought by t'vo or more persons under s. 92. the suit is to vindicate the right of the public. In deciding whether the suit falls within the section the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit wns brought. [799D-800A]

Sugra Bibi v. Hazi Kununu Afia, (1969) 3 S.C.R. 83, followed.

Shan1ukhan v. Govinda, A.LR. 1937 Madras 92. Tinunalai Deva.wha1u11na v. Krishanayya, A.LR. 1943 Madras 466, approved.

( 3) If oli the alle,ations in tho plaint it is clear that tho purpose of the s.uit was to vindicate th~ individual right of I<.. to be tho head of the math there is no reason tn ho!J that the 1uit was brought to uphold the right of -the b:neficiaries of th~ trust. merely becanse the suit was filed bY two or more memb:rs of the public tlter obtaining the -sanction :>f the Advocate General and one or more of thei reliefs specified in the section are claimed therein. Tue relief regarding· tho appointment of K and tho alternative relief to appoint some other person as tho head, without any allegations as to the circumstances which would invalidate. K's installatioo and without implead:ing him as party, sho'N1 lhe attemPt to make it appca; that the appellants were disinterc!'tej c~.an1n ··ns of the rieht of the public. If the real purpose in bringing the suit was to vindicate the ,c:eneral ri&h~ of tho public to havo tho rightful claimant appointed to the office there was no reason why the appellants, as plaJntiffs, omitted to implead. or at least refer in the plaint to the !hree persons nominated by the d!!Ccascd head of the math in his will to succeed in .the order indicated therein, e~peciaUy- when the appellant accepte~ the custom of the math to have the succe<asor nominated by th_T incumbent for tho ~mo being. [800CD, F-Hl

( 4) The trial court as well as the High Court found that there was no evidence to substantiate th:.! allegation~ of breach of truet aga,in.,t the fi ::e?-pondent. No reasons wcire given in tho plaint for asking the directions of the court for the administration of trust The plaintiffs did not plead facts and particulars as regards any c;lefect in the machinery for administration 't\[1]hich had crept in. under custom or rules which required rectification. [~OOH-801Cl

· (S) To see whether the suit falls within th"e: ambit of s. 92. only the allega .. tions in the plaint should be looked into in tho first instance. But, if after evid:nco is taken it is found that the breach of trust .alleged has _not been m~de out and that the prayer for direction of the court is vague and is not baaed on any foundation of fact or reason, but is mado only with view to brin& the· suit under the secti?o, then su:h suit must be dismissed. "[8010-F]

.As.rdciation of B. D. B. Bagga Sing/a ·v. Gurnam Singft, A.I.R. 1972 Raja.sthan 26), Sohan Sing/a v. Achllar Si11g/i & Otilers A.l.R. 196& Punjab and Haryana 463, and Radha K.riihna &: Others v, Lachr.1€ ·Nund11 and oJhers. AJ,R. 1948 Oudh 203. referred to, cThe ··~uestion whether tho word' "'whel-e tho- dirCction of the court is deemed necessary for· the administration of any such trust''" must bo interpreted to mean that where the court has to give directions in tho nature of framing scheme or otherwise for the administration of the trust, .. or whether those words can refer only to directions given to an existing trustee or to new trustee when one j3 to be appQinl'"d, or to directions when there are allegations of maladm:nis· tration amounting to breach of trust not decidedJ. [801C-DJ

' CIVIL AP.PELLATE JURISDICTION·: Civil Appeal Ne 1589 of

Appeal by Special Lrnve from the Judgment and Order dated th~ 11th September, 1973 of the Allahabad High Court in First Appe•l No. 385 ot 1962. /

/ D. V. Patel, R. Dwivedi, 0. P. Shah and M .. v. Goswami, for the appellants.

P. Ram Reddy, R. B. Sharma, S.S. Khanduja, V. K. S. Chaudlwry,

Naravan Swarup and Ya/endra Sjngh Chaudhry, for respondent no. I.

Pramod Swarup, for respondent No. 2.

K. S. Ramcmurthy, Ambrish Kumar and Ramesh Kumar, for intervener. .;, .

The Judgment c£ the Court was delivered by

MATHEW, 1. The appel)ants, as plaintiffs, filed suit under s. 92 of the Civil Procedure Code allegina breach of trust created for public purpose of reliaious nature and praying for removal o! the defendant, the head of thG Math in question claimin& title to the offica under will executed by the predecessor-in-office and for c,ther relief!. The District Court dismissed the suit on the Ground that the suit will nQt lie under s. 92 of the Civil Procedure Code. The High Court, on appeal, upheld that judgment and, this appeal, by special leave, is directed aaairuit that judpnent.

Adi Shankaracharya founded Maths at four centres in India about thousand years ago. The math with which we are concerned was established by him in Himalayas. Thls Math was knqwn by the name Of Jyotir Math Qr Jyotish Peeth. For centuries, the existence of this Math was unknown to the public and even the place where the Math stood had to be found out. In 194-0, a· society known as Bharat Dharma Maha-Manda! or Kashi made an effort to discover the Math and the effort proved successful. The relics of the· Math were found near Badrikashr~m. The land on whleh the relics were found along with certain other property on the banks of Varona in Kashi was ac-quired by the Scr.:iety and thereafter the Society created an endowment of the land by deed dated April 11, 1941 in favqur of Jyotir Math and Swami Brahmanand Saraswati ('Brahman3nd' for shonJ, man renowned for his piety and vedic learning was installed as the Head ol the Math.

Brahmanand died on May 20, 1953. Before his death, he executed will which was published on June 8, 1953. lly the will, he nomi-nated panel of 4 persons in order choice indicated in the will to succeed him as head of the Math. His first choice was Swami Shanta-nand Saraswati, respondent No. 1. Respondent No. 1 accepted the office. He was installed as Shankaracharya of the Math on June 12, 1953. Thereafter dispute arose among the worshippers of Jyctir Math. section of the worshippers installed Swami Krishnabodhashram ('Krishnabodhashram' for short) as the Shankaracharya of the Math on Jane 25, 195 3, as according to them, Brahmanand did not execute any will ncminating his successor, and even if he executed will, it was not executed by him whlle he was in sound disposing state of mind and that in accordance with the custom and the rules of the Math, they were entitled to instal person nominated by them as the Head of tho Math.

Respondent No. I, who was installed on June 12, 1953, as the Head of the Math, came intcl possession of the Math properties. The worshippers who supported the claim of Krishnabodhashram filed suit in January, 1954 in the Munsiff Court at Lucknow for an injunc· tion restraining respondent No. 1 from interfering with the Math pro-perties. In the meanwhlle, respondent No. 1 applied fc~ succession certificate in the Court of District Judge, . Allahabad and that was granted on December 12, 1956. Thereafter, four persons alleging

themselves to be interested in the Jyotir Math, after obtaining pennis-sion of the Advocate General, filed the suit under s. 92 of the Civil Pmcedure Code against respCJJdent No. 1.

The main allegations in the plaint were that Brahmanand did not execute the will while he was in sound disposing state of mind, that respondent No. 1 had not the requisite learning in Sanskrit and the Vedas and, therefore, he was not qualified to be nominated as successor to the headship c~ the Math, that he came into possession of the Math properties and has committed breach of trust by applying for &rant of succession certificate and other acts, that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 2~, 1953 and that direction of the Court was necessary fur the administration ct the trust properties. The plaintiffs prayed for the removal of respondent No. 1 from the headship of the Math, declaration that Krishnabodhashram was the duly installed head of the Math and to appoint him as the head, and in the alternative, to appoint any other competent person as the head of the Math. They further prayed for vesting of the properties of the Jyotish Math in the new Head and for rendition of account! by respondent No. 1, etc., and to restrain him from prosecuting the appli-cation for succession certificate and also the mutation proceedings.

The defendant (respondent No. 1) practically denied all the alle-gations in the plaint and contended that the suit being one primarily for the vindication of the claim of Krishnabodhashram !Cl be the Shankaracharya of the Math, was not maintainable tinder s. 92 of the Civil Procedure Code.

The District Court found that Brahmanand executed the will while he was in sound disposing state of mind, that respondent Ne!. l being one of the nominees under the will having the prior claim would have been entitled tt> succeed as the Head of the Math but for the fact that he was not learned in Sanskrit and the Ved 1s which was necessary qualification for holding the headship ct the Math. It further found that the allegations with respect to the breach of trust by respondent No. 1 had not been proved, that Krishnabodhashram was validly ins-talled as the Sbankaracharya of the Math but that the suit as it was brought for the vindication of the right ct Krishnabodhashram to the headship of the Math, was not maintainable under s. 92 ct the Civil Procedure Code.

The High Court dismissed the appeal on the basis that the suit was incompetent under s. 92 of the Civil Procedure Code.

It is clear from the allegations in the plaint that the plaintiffs pri· marily wanted declaration from Court that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953, that he came into possession of the properties of the Math and, there-fore, the Ccurt should appoint him as the Shankaracharya of the Math. In order to enable the Court to give that declaration, the plaintiffs wanted declaration that the will nominating respondent No. 1 as successor of Brahmanand was not executed by Brahmanand when he was in sound disposing state of mind and that even if the will was

validly executed, respc111dent No. 1 did not have the requisite learning in Sanskrit and the Vedas and so, he was not qualified to be nominated as the Head of the Math and, therefore, his installation as the Shan-karacharya of the Math on June 12, 1953 was invalid. There was no allegation in the plaint questioning or even casting any doubt on the validity of the installaticin of Krishnabodhashram as the Shankaracharya of the Math and there was also no allegation against his as respects his management of the trust properties. Then, how was it that the plain-tiffs prayed in the alternative for appointment of some other person as Shankaracharya ? The relief for the appcintment of Krishnabodha-. shram as the Shankaracharya of the Math by the Court and the alter-native relief to appoint some other person as the Shankaracharya, with-out any allegation as to the circumstances which would invalidate the installation of Krishnabodhashram and w;th,.mt imnleading him as party tci the suit would show the strain of the draftsman to dress up the plaint with prayers to make it appear that the plaintiffs were the disinterested champions of the right of the public and not the mere partisan advocates of the personal cause of Krishnabodhashram.

suit under s. 92 is suit of special nature which presupposes the existence of public trust of religious or charitable character. Such suit can proceed only on the allegation that there was breach of such trust or that the directicln of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated c~ that the plaintiff had not made out case for any direction by the Court for proper administration of the trust, the very foundation of suit under the secticin would fail, and, even if all the other ingredients of suit under s. 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking declaration of their individual or personal rights or the individual or personal rights of any other person or persrns in whom they are interested, then the suit would be outside the scope of s. 92 [see Shamukhan v. Govinda(') Tiruma/ai Devasthanams v. Krishnayya('). Sugra Bibi v. Ilazi Kummu Mia(') and Mulla: Civil Procedure Code (13th ed.), Vol. 1, p. 4001. suit whose primary object or purpose is tci remedy the infringement of an individual right or to vindicate private right does not fall under ~ the section. It is not every suit claiming the reliefs specified in the sec-tion that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brciught by individuals as repre-sentatives of the public for vindication of public rights; and in deciding whether suit falls within s. 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust reli!!ious nature are precluded from suing under the section to vindicate their individual or personal rights. It

is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right tct the office of trustee is asserted or denied and relief asked for on that basis, the suit falls outside s. 92.

We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in trust bring suit purporting to be under s. 92, the question whether the suit is to vindicate the personal or individual right of third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, on the allegations in the plaint, it is clear that the purpose of the suit was to vindicate the individual right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought OID uphold the right o[ the beneficiaries of the trusts, merely beca.use the suit was filed by two or more members of the public after obtaining tlre sanction of the Advocate General and claiming one or more of the reliefs spec;fied in the section. There is no reasci:i to think that when· ever suit is brought by two or more persons under s. 92, the suit is to vindicate the right of the public. As we said, it is the object or the purp:ise o1 the suit and not the reliefs that should decide whether it is. one for vindicating the right o[ the public or the individual right of the plaintiffs or third persons.

Tho trial Court, after reading the allegations in the plaint and after looking into the entire evidence in the case, came to the conclusion that the suit was primarily one for declaration that Krishnabodhashram was duly installed as the Shankaracharya of the Math on June 25, 1953 and that respondent No. 1 had no right to be nominated as the Head of the Math by Brahmanand as he did not possess the requisite qualification and that his possession of the trust property was only in the capacity of trustee de son tort, and so he must be removed from the headship of the Math. The High Court saw no reason to differ from that finding. We would be slow to disturb finding of this nature especially when we see that the allegations in the plaint are reasonably susceptible of being so read. We think that the purpose· c1f the suit was to settle the controversy as to whether Krishnabodhash-ram or respondent No. 1 had the better claim to the headship of the Math and to the possession a.nd management of its properties by ob-G taining declaration of the Court. If the real purpose in bringing the suit was tci vindicate the general right of the public to have the rightful claimant appointed to the office, there was no reason why the plaintiffs omitted to implead or at least refer in the plaint to the three persons nominated by Brahmanand in his will to succeed him in the order indi-cated therein especially when it is seen that the plaintiffs accepted the custom of the Math tci have the successor nominated by the incum· bent for the time being of the office of Shankaracharya.

The Trial Court as well as the High Court found that there was no evidence to substantiate the allegations regarding the breach of trust

said to have been oommitted by respcndent No. J. Jn paragraph 20 of the plaint, there was an allegation that the direction of the Court was necessary for the administration of the trust. But no reasons were given in the plaint why the plaintiffs were seeking the direction of the Court. There were nq clear allegatioos of maladministration viz., that respondent No. 1 was diverting the trust properties for his personal benefit or that he was committing any devastavit. The High Court was of the view that since the plaintiffs did not plead facts and parti-culars as regards the defect in the machinery for administration which had crept in under custom or rules which required rectificaticin, the prayer for direction was mere pretense to bring the suit under s. 92. direction cannot be given by the Court unless it is shown that it is. necessary for the proper administration of the trust. We do not think it necessary tci decide for the purpose of this case whether the words "where the direction of the court is deemed necessary for the adminis-tration of any such trust" must be interpreted as meaning that where the court has to give directions in the nature of framing ~cheme or otherwise for the administration of the trust cir whether those words can refer only to directions given to an cxi~ting tn1stt>e wb.cn there js one or to new trustee when one is to be appointed or to directions when there are allegations of maladministration amounting to breach of trust. It is si.:1licient for the purpose of this case to say that the prayer foe direction was prayer in vacuum without any basis in reason or facts.

It is, no doubt, true that it is only the allegations in the plaint that should be looked intci in the first instance to see whether the suit falls within the ambit of s. 92 [see Association of B.D.B. Bagga Singh v. Gurnam Singh ('), Sohan Sin!ih v. Achhar Singh & Others(') and Radha Krishna & Others v. Lachmi Narain & Others(')]. But; if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with view to bring the suit under the section, then suit pur-porting to be brought under s. 92 must be dismissed. This was one of the grclunds relied on by the High Court for holding that the suit was not maintainable under s. 92.

We think that the High Court was right in dismissing the suit on the ground that it did not fall within s. 92 of the Civil Procedure Code. We, therefore, dismiss the appeal but, in the circumstances, without nny order as to costs.

Appeal dismissed.

(!) A.LR 1972 Rajasthan 263. (2) A.LR. 1963 Punjab & Haryana 463. (3) A.LR. 1943 Oudh. 203,