Delhi High Court
Sharda Bansal And Others vs R.D. Bansal And Others on 30 July, 2008
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1583/2005
% Date of decision : 30.07.2008
SHARDA BANSAL AND OTHERS ......Plaintiffs
Through: Mr S.N. Kumar, Senior Advocate
with Mr S.K. Gupta.
Versus
R.D. BANSAL AND OTHERS ...Defendants
Through : Mr A.K. Sharma, Advocate for
Defendant Nos.1 to 4
Mr Harish Malhotra, Sr Advocate
with Mr Gaurang Kanth, Mr Rahul
Kumar and Ms Savita Singh for
Defendant No.5.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? YES
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported
in the Digest? YES
RAJIV SAHAI ENDLAW, J
1. In this suit, the defendant No.5 (Gulab Devi Charitable
Trust) is admittedly a public charitable trust. Issues were framed in
the suit on 5th October, 2007 and the issue No.5 as under was
ordered to be treated as a preliminary issue:
"Whether the suit is not maintainable against defendant
No.5 in view of Section 92 of the Code of Civil
Procedure as alleged by the defendant No.5? OPD5"
cs(os)1583/2005 page no.1 of 5
2. Arguments have been heard from the counsel for the
defendant No.5 and the counsel for the plaintiffs. The suit is with
respect to the estate of Shri Manmohan Bansal who died on 24th
May, 1996. The plaintiff No.1 is the widow and the plaintiff Nos.
2 to 4 are the son and daughters of Shri Manmohan Bansal. It is
the case in the plaint that the defendant Nos 1 to 4 who are the
brother and legal representatives of the brother of Shri Manmohan
Bansal have fabricated a Will dated 17th May, 1996 of Shri
Manmohan Bansal whereunder the proceeds of the estate are to go
to the defendant No.5 trust. The plaintiffs have for the said reason
impleaded the defendant No.5 trust as a party to the present suit
and have further pleaded that separate proceedings for looking into
the affairs of the defendant No.5 trust are being taken under
Section 92 of the CPC. The plaintiffs in the present suit have
sought a declaration that the Will dated 17th May, 1996 of Shri
Manmohan Bansal is a forged and fabricated document and a
decree for recovery of Rs 48,70,000/- from the defendants jointly
and severally and sought accounts of the estate of Shri Manmohan
Bansal and permanent injunction for restraining the defendants
from dealing with the estate of Shri Manmohan Bansal. The
defendant Nos. 1 to 4 and the defendant No.5 have filed separate
written statements. The defendant No.5 in its written statement,
inter alia, took up the plea on which the preliminary issue aforesaid
was framed. The plaintiffs in their replication denied that Section
92 of the CPC has any application to the reliefs claimed in the suit.
cs(os)1583/2005 page no.2 of 5
3. The senior counsel for defendant No.5 besides
reiterating the plea and drawing attention to the relief in the plaint
of accounts including against defendant No. 5 Trust has relied upon
the judgment dated 3rd July, 2008 of this court in Anil Nanda and
Another v M/s Escorts Limited and Others (CS(OS) 1372/2005).
Per contra, the senior counsel for the plaintiffs has relied upon
Swami Paramatmanand Saraswati and another v Ramji
Tripathi and Another (1974) 2 SCC 695.
4. The aim of Section 92 of the CPC is to protect the rights
of public in charitable trust and to enable the public, the Advocate
General and the courts of justice to stop the misuse of the income of
charitable institutions. The Section is intended to provide
proceedings of a special nature for the purpose of determining
questions that relate to the administration of public, religious or
charitable trusts and to prevent multifarious and vexatious suits
being filed by irresponsible persons against the trustees whose duty
it is to administer such trusts. Section 92 gives protection to a
public trust from being subjected to harassment by suits being filed
against them. However, the infringement of private rights is outside
the scope of Section 92. The real test for applicability of the Section
is to see whether the suit is fundamentally on behalf of public for
vindication of a public right. A suit within the meaning of Section 92
necessarily has to have the administration of the trust as its core
purpose/object. The Apex Court in Harendra Nath Bhattacharya
& Ors v Kaliram Das (Dead) by his LRs and Ors (AIR 1972 SC
246) has held that in order that the Section may apply the following
cs(os)1583/2005 page no.3 of 5
conditions must be satisfied : (a) there must be in existence trust
for public purpose of a charitable or religious nature; (b) the
plaintiff must allege that there is a breach of such trust or that the
direction of the court is necessary for administration of the trust; (c)
the suit must be a representative one on behalf of the public and not
by individuals for their own interest; (d) the relief claimed in the
suit must be one of the relief mentioned in the Section. Where all
the aforesaid conditions are satisfied, the Section 92 becomes
applicable and where any of the conditions are absent, the Section
has no application.
5. Reliance can also be placed upon another judgment of
the Apex Court Bishwanath and Anr v Shri Thakur
Radhaballabhji and Ors (AIR 1967 SC 1044 where a suit for
possession of property in enforcement of a private right was held
not to attract the provisions of Section 92 of the CPC. Merely
because a suit relates to public trust or to the properties belonging
thereto, without the other conditions of the Section being satisfied
will not make the Section applicable thereto.
6. Applying the aforesaid law, merely because one of the
prayers in the suit is of rendition of accounts with respect to estate
of Shri Manmohan Bansal and which estate as per the will
challenged by the plaintiffs vests in the defendant No.5 trust, it
cannot be said that Section 92 CPC is attracted. The plaintiffs have
sued for enforcement of their individual rights and not in a
cs(os)1583/2005 page no.4 of 5
representative capacity. The aim of the present suit is not
administration of defendant No. 5 Trust but only to recover what the
plaintiffs claim and which may have been transferred to the
defendant No. 5 Trust. In the absence of Will of Shri Manmohan
Bansal and which is under challenge in this suit, the estate of Shri
Manmohan Bansal could not have vested in defendant No. 5 Trust
and the plaintiffs upon being found successful would be entitled to
recover the part of estate, if any, in possession of defendant No. 5
Trust. Such a suit does not fall within the ambit of Section 92 as
held by the Apex Court in Swami Paramatmanand Saraswati and
another (supra). In Anil Nanda (supra), this court in para 17 of
the Judgment held that the plaint in that case contained allegations
of breach of trust and the plaint in that case sought the relief of re-
establishing the public charitable nature of Escorts Heart Institute
and Research Centre Delhi and thus held the suit to be barred for
non-compliance of Section 92 CPC. However, the plaint in the
present case, has no averment of breach of trust in relation to
Defendant No. 5 Trust and as aforesaid, Defendant No. 5 has been
impleaded only because properties which the plaintiffs claim may
have passed on to the defendant No. 5.
The preliminary issue No.5 is accordingly decided in favour of
the plaintiffs and against the defendant No. 5 and the suit as
framed, is held to be maintainable against the defendant No.5.
July 30, 2008 RAJIV SAHAI ENDLAW, J.
M
cs(os)1583/2005 page no.5 of 5
