IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Civil Revision No. 69 of 2008
Satyagayan Nikatan through Kaashi Naagaree Prachaarini Sabha (regd) through Shri Padmaakar Pandey and another - Revisionists Versus
Swami Shivshankargeri Chella Swami Siddhanand
and another - Respondents WITH
Civil Revision No. 70 of 2008
Shri Padmaakar Pandey and another - Revisionists Versus
Mukund Singh Yogi and another - Respondents.
Mr. Nagesh Agarwal, Advocate for revisionists.
Mr. Arvind Kumar Sharma, Advocate for respondents.
(Hon'ble B.S. Verma, J.)
Since both the civil revisions arise out against the common order dated 12.11.2008, passed by District Judge Haridwar in Misc. Case No. 23/2004 and Misc. Case No. 7/2006, therefore, they are being decided by this judgment.
Briefly stated the facts of the case, giving rise to these revisions, are that Sri Mukun Ram and Sri Krit Ram filed an application No. 23/2004 U/S 92 C.P.C. and Swami Shiv Shankar Giri and Sri Lalit Singh filed an application No. 7/2006, U/S 92 C.P.C. for obtaining permission to file a suit in connection with same property. The ground taken in the above applications was that the grand father of applicant Shiv Kumar Singh, Pt. Ram Narain Mishra and Dr. Shyam Sunder Dass were the founder member of Kashi Nagri Pracharini Sabha for the publicity and development of Hindi Language. It was registered under the Society Registration Act, 1860. It's head office is situated at Banaras. One Swami Sri Satya Dev purchased some land in the year 1936 and constructed a building. On 30.11.1940 he waqfed the disputed property to Kashi Nagari Pracharini Sabha (hereinafter referred as the ' Pracharini Sabha') on the condition that the 2
'Pracharini Sabha' will not have a right to mortgage or sale the property. The property was waqfed for the development and publicity of Hindi Language in the western India and to establish a center for publicity of Hindi. There was also recital in the deed to establish a Library and to start a ' Bhyakhan Mala' etc. The property shall be managed by the sub-committee constituted by Pracharini Sabha. It was further alleged that the opposite parties Pracharini Sabha are not taking any interest for the purpose for which the property was dedicated. On the other hand the applicants have an interest in the development of the said property as well as Hindi Language. Their object is to fulfill the spirit of the deed.
The revisionists filed objections alleging therein that application is not maintainable U/S 92 C.P.C. Their head office is situated at Banaras so the court has no jurisdiction. It was also alleged that the Pracharini Sabha is a registered society, therefore, the activities of the society is carried out by the Samiti constituted as per the constitution of the Society. It is not a trust and the property in dispute is also not owned by any trust. Sri Padmakar Pandey is the Secretary of the Society and the Society is working for the development of the Hindi Language since 1893 and has published about 300 books of Hindi including six books of Swami Satya Dev. It is wrong to say that the Society has committed any breach of trust and it is also wrong to say that the Society has ever tried to sale the property in dispute. The applicants have no concern with the Pracharini Sabha and only with a view to grab the property they have filed the suit.
The learned District Judge after hearing counsel for parties and perusing the entire material available on record, allowed both the applications and the applicants/respondents were permitted to file a suit U/S 92 C.P.C.
Feeling aggrieved, the Pracharini Sabha has filed these civil revisions.
I have heard learned counsel for parties and perused the record. The argument raised by learned counsel for the revisionists is that Kashi Nagari Pracharini Sabha is a registered society and not a trust and the society is absolute owner of the property of Satya Gayan 3
Niketan Ashram, Jwalapur and the learned District Judge has committed a manifest error of law by considering the Pracharini Sabha as a trust for the purpose of allowing the application U/S 92 C.P.C. He further submitted that the Pracharini Sabha was constituted for the promotion and upliftment of Hindi Language in the country and in foreign also and purpose of the Society is charitable and formation of a society under the Societies Registration Act to carry out a charitable or useful or social purpose cannot be regarded as amounting to creation of a Trust for application of Section 92 C.P.C. In support of his contention learned counsel for the revisionists has cited before me the case of The Advocate General vs. Bhartiya Adm Jati Sewak Sangh & Ors. reported in 2002(1) CCC 122 (H.P.) and 'ABHAYA' a Society Registered under the Travancore-Cochin Literary and others Vs. J.A. Raheem and others, reported in AIR 2005 KERALA 233.
I have gone through the above cited cases. In the case of The Advocate General vs. Bhartiya Adm Jati Sewak Sangh & Ors. reported in 2002(1) CCC 122 (H.P.), in paragraph No. 14 it has been held as under:-
"14. In G.Chikka Venkatappa v. D. Hanumanthappu, it has been held that the formation of a society under the Societies Registration Act, 1860, to carry out a charitable or useful or social purpose cannot be regarded as amounting to creation of a trust for the application of Section 92, Code of Civil Procedure. The effect of the Societies Registration Act, 1960, is not to invest properties of the Society with the character of trust property. Even if the purpose for which the Society was formed was charitable purpose, the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated."
It has further been observed in paragraph 15-
"The property, movable and immovable, belonging to a Society registered under this Act, if not vested in Trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title." 4
In the second cited case of 'ABHAYA' a Society Registered under the Travancore-Cochin Literary and others Vs. J.A. Raheem and others, reported in AIR 2005 KERALA 233, it has been held in paragraph no-9 as under:-
"A reading of various Sections of Act XII of 1955 shows that even if the object of a society shows that even if the object of a society formed under the provisions of Act XII of 1955 is a charitable purpose and even if it acquires property and use the same for achieving the object of the society, the property is owned by the society and it belongs to it. The property is that of the society which is a legal person by virtue of the provisions of the statute. It cannot be said that whenever a society acquires property, it declares itself as a trustee in respect of that property. The society has a legal obligation to use the property for purposes of the society acquired strictly in accordance with the provisions contained in the Rules and Regulations of Memorandum of Association. By no stretch of imagination it can be considered as a declaration of trust in respect of a property acquired by the Society."
It has further been observed that-
"a trust is created only when the author of the trust indicates with reasonable certainty by words or act that intention in his part to create a trust, beneficiary and the trust property. The subject matter of a trust must be a property transferable to the beneficiary. It must not be merely a beneficial interest." In paragraph 21 of above judgment it has been observed as under:-
"The learned District Judge allowed the Original Petition on a wrong assumption that the petitioner Society is a Trust. There is absolutely no material to show prima facie that 1st petitioner is a Trust, either public or private. There is also no material to show that there was a Trust of public nature, which subsequently got registered under the provision of Act XII of 1955. Since there is no material to make out a prima facie case that the 1st petitioner is a public trust and any person had settled any properties for the benefit of the beneficiaries, the 5
provisions of Section 92 of C.P.C. cannot be invoked. So, the impugned order is illegal, unsustainable and liable to be set aside."
In the case in hand according to petitioners the Pracharini Sabha is a registered society and is working for the development of Hindi Language since 1898. Swami Satya Dev owing to the affection and interest in Hindi Language gifted all his property to the above society on 31.12.1943 by a registered gift deed making the above society absolute owner which is crystal clear from clause-2 of gift deed filed as Annexure-6. This clause clearly reveals that Kashi Nagari Pracharini Sabha was made absolute owner of the property and it was further alleged in this clause-2 that the Sabha shall got entered the property in its name and the waqfer or his heirs would have no right and interest in the property. In this way the gifted property has vested in the general body of the Pracharini Sabha. Therefore prima facie it is not proved that the Pracharini Sabha is a trust and from the deed executed by Swami Satya Devi in favour of Pracharini Sabha does not indicate with reasonable certainty by words of act that the intention of donor was to create a trust, the property was vested in general body of Pracharini Society, therefore, the property was not transferable to beneficiary and the ingredient of trust was not complete. Further the Pracharini Sabha was constituted for the promotion and upliftment of Hindi Language in the country and in foreign also, and the property gifted out to the Pracharini Society was also for the development of Hindi Language in western part of country, hence the scope of the Society is vast and the charitable purpose of development of Hindi Language submerged with the scope of Pracharini Sabha. In this way prima facie it cannot be said that the petitioner No.2, Pracharini Sabha is a trust public or private. Rather it is a Society registered under the Societies Registration Act. The property gifted out to the Society by Swami Satya Devi has vested with the Society and by this reason only it cannot be said that the property gifted to the Society is a trust. However, as per the directions contained in the gift deed some restrictions have been imposed upon the Society like the society cannot mortgage or sell out the property, 6
the income from the property shall be spent in the upliftment of Hindi Language.
Therefore, prima facie condition No.1 to invoke the provision of Section 92 C.P.C. 'that the trust is created for public purposes of a charitable or religious nature', is not proved in this case. Now I deal with condition No.2, which relates to breach of trust. The allegation of applicants/respondents is that the property was waqfed for development and publicity of Hindi Language in the western India and to establish a center for publicity of Hindi. There was also recital in the deed to establish a library and to start a Bhyakhan Mala etc. and the opposite parties/petitioners are not taking any interest for the purpose for which the property was dedicated and the respondents have an interest in the developing the property and their object is to fulfil the spirit of deed.
As stated in the earlier part of this judgment, prima facie it has not been proved that the Pracharini Sabha is a trust, rather it is proved that it is Society registered under Societies Registration Act, hence there arise no question of breach of trust. So far as the allegation of applicants/respondents that petitioners are not taking any interest for the purpose for which the property was dedicated, this allegation is also not proved by the respondents. The petitioners' case is that the Society is not only constituted for up-liftment of Hindi Language in western part of the country but whole of the country and foreign also, as is evident from the constitution of Society annexure No.4. According to Society it has published about 300 books of Hindi including six books of Swami Satya Dev. The main object of the Society is to develop Hindi Language since 1898 and mere statement of respondents that they are well wishers of Hindi Language and have interest in the gifted property is not enough. Their interest should be real, substantial and existing.
The Kerala High Court in the case of Ramlath Memorial Charitable Trust Vs. Peerukannu, reported in 2010(1) CIVIL COURT CASES 619, has held that a mere statement that the petitioners are well wishers and beneficiaries of the trust without any thing more, is not sufficient to show that they have any interest in the trust to obtain leave for instituting a suit for the relief under Section 92 of the C.P.C. 7
The object of Section 92 of the C.P.C. is to prevent people from interfering with the administration of the public trust of a charitable or religious nature by instituting frivolous suits. Whether petitioners in the original petition has genuine, substantial and existing interest in the trust entitling them to seek permission to sue to protect the interest of the trust deserve to be examined before they are permitted to institute the suit for the relief under Section 92 of the C.P.C. especially when the trustees, respondents 3 to 6 have disputed their interest contending that the suit has been filed to vindicate the personal rights and also that of the 5th respondent, who had previously failed in her attempts to challenge her removal from the Board of trustees. Learned counsel for the respondents has submitted that the revisions are not maintainable and the High Court while exercising its jurisdiction under section 115, cannot correct errors of fact, however, gross they may be, or even errors of law. In support of his contention learned counsel has cited before me the case of Ambrish Kumar Singh Vs. Raja A.B. Bramhshah and others, reported in 1988 AWC 730. In the above cited case the Allahabad High Court relying upon the judgment of Pandudrang Dhondi Chougule v. Maruti Hari Jadhave, 1966 SC 153, has held that there was no jurisdictional error or any error in the exercise of jurisdiction vested in the Court and the revision was dismissed.
In this instant case the learned District Judge has exercised the jurisdiction not vested with him by allowing the applications U/S 92 C.P.C. There was prima facie case to show that the Pracharini Sabha is a Society registered under Societies Registration Act and the property gifted to it by Swami Satya Devi for the upliftment of Hindi Language has vested in the general body of the society and the society was doing work for the upliftment and development of Hindi Language and the applicants could not convince the court about their allegations leveled against the Society. In this way the learned District Judge has committed jurisdiction error and the ruling cited by learned counsel for the respondents is not applicant to the facts of the present case.
Learned counsel for the respondents also cited the cases of B.S. Adityan and others Vs. B. Ramchandran Adityan and others, reported 8
in (2004) 9 Supreme Court Cases 720 and the case of Amrithakumari & Anor. V. V.P. Ramanathan & Ors. Reported in 1999(1) CCC 238 (Ker.).
I have gone through the above cited cases. In the case of B.S. Adityan and others (supra) the Hon'ble Supreme Court has dealt with the question whether hearing to proposed defendants before grant of, institute suit under Section 92 is necessary or not. The answer was that it is not necessary but advisable. In the normal course if an appeal is filed against an order granting permission to a party to file a suit as falling under Section 92 C.P.C., the Supreme Court does not normally interfere with an order made by the High Court nor does it think of entertaining a proceeding of this nature under Article 136 of the Constitution because the order made there-under will not determine the rights of the parties, but only enables a party to initiate a proceeding.
In the another case of Amrithakumari & Anr. (supra), it has been observed that plaint filed along with leave petition U/S 92 C.P.C., leave petition has to be considered independently should contain statement of facts, grounds and relief and the suit is to be instituted and registered only after grant of leave. In the above cited case the question whether the school registered under Societies Registration Act can be deemed as trust or not was also considered and it has been held as under:- "The Court was of the view that if there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school the fact of the registration of a society could not change the character of the properties. In that case the court held that the committee very well exists and suit can be filed under Section 92 of the C.P.C. Here what is to be considered is whether the establishment of the school was as a result of the charitable work of the local people or whether it was on account of the work of the committee. Anyhow, these matters are to be finally determined in the suit. But going by the averments in the petition and suit, I find that it cannot be said that at present the school is not a trust property." 9
However, the facts of the case in hand are totally different. The revisionist Pracharini Sabha is a registered society the object of which is to develop the Hindi Language not only in the country but in foreign also. Swamy Satya Dev gifted his property to the above Society and the property has vested in the general body of Society. Prima facie the Pracharini Sabha is engaged in the work of development of Hindi Language and the mere statement of the applicants that they are well-wishers and beneficiaries of the property as well as mere allegations against the Pracharini Sabha that it is not taking interest in the development and upliftment of Hindi Language, do not entitle the applicants to file suit U/S 92 C.P.C. Further, it is quite clear that mere a statement that the applicants are well wishers and beneficiaries of the trust without any thing more is not sufficient to show their interest in the trust. In the case in hand as has been held above the applicants/plaintiffs have not been able to establish the Kaashi Naagaree Pracharini Sabha as a trust, further the revisionists have categorically denied the allegations of the applicants, therefore, in my view, the condition No.2 mentioned in Section 92 C.P.C. is also not proved.
Therefore, from above rulings cited on behalf of the petitioners and in view of discussion made in foregoing paragraphs, it is quite clear that mere formation of a society under the Societies Registration Act, to carry out a charitable or useful or social purpose cannot be regarded as amounting to creation of a Trust for application of Section 92 C.P.C. Secondly, the property, movable and immovable belonging to a Society if not vested in trustees, shall be deemed to be vested, in the governing body of such society. Further, it cannot be said that whenever a society acquires property, it declares itself as a trustee in respect of that property. The Society has a legal obligation to use the property for purposes of the society acquired strictly in accordance with the provisions contained in the Rules and Regulations of Memorandum of Association.
The learned District Judge has committed a manifest error and passed the impugned order beyond the jurisdiction, which was not vested in him.
Therefore the revisions are allowed and the impugned order is set aside. Consequently, the applications filed by respondents U/S 92 C.P.C. for obtaining permission to institute suit are hereby rejected.
Dated: 01-08-2011 (B.S. Verma, J.) ISB