Lalit Mohan & Ors. vs Bhuwan Mohan & Ors.
2017 Latest Caselaw 5509 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                                            9th October, 2017

+                      CS(OS) 73/2017

       LALIT MOHAN & ORS.
                                                                  ..... Plaintiff
                             Represented by:    Mr. Dayan Krishnan, Sr. Adv.
                                                with Mr. Abhimanyu Mahajan,
                                                Ms. Anubha Goel, Advs.
                             versus

       BHUWAN MOHAN & ORS.
                                                                  ..... Defendant
                             Represented by:    Mr. J.P. Sengh, Sr. Adv. with
                                                Mr. Rakesh Kumar, Adv. for
                                                D-1, 3 to 6, & 9.
                                                Mr. Samar Bansal, Mr. Balaji
                                                Subramanian, Advs. for D-2.
                                                Mr. Amit Agrawal, Adv. for
                                                D-10.

CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. The present suit has been filed by the plaintiffs Lalit Mohan, Kusum Krishna and Anuradha Krishna under Section 92 CPC with the following prayers:

"a) Pass a decree under Section 92(1)(a) of the Code of Civil Procedure, 1908 removing the defendant Nos. 1&2 as Members of the defendant No.9/ Trust;

b) Pass a decree under Section 92(1)(h) of the Code of Civil Procedure, 1908 setting aside the letter dated 9.9.2016

issued by defendant No.9 to the Delhi University in respect of the changes to the Governing Body of the Janki Devi Memorial College and restrain the Defendant Nos. 1 & 2 from acting as members of the Governing Body of the Institutes under the Trust;

c) Pass a decree under Section 92(1)(h) of the Code of Civil Procedure, 1908 declaring that the "Original Donors" as defined in the Scheme sanctioned by this Hon'ble Court in suit No.501 of 1979 by way of Order dated 12.7.1979 be automatically included as persons qualified for the Membership of the Defendant No.9 and further direct that persons other than the "Original Donors" must file a written application by complying with the Securities and Exchange Board of India (Criteria for Fit and Proper Person Regulations, 2004 for being assessed as persons "specially suitable for furtherance of cause of the Trust" before being made a Member of the Trust;

d) Pass a decree under Section 92(1)(c), (d) and (h) of the Code of Civil Procedure, 1908 directing an investigation and inquiry against the Defendant Nos.1, 2, their associates, family members and Defendant No.10 in connection with the affairs and finances of Defendant No.9 and direct all parties including Defendant Nos. 1,2 and 10 to restitute the finances of the Defendant No.9 to the fullest in a time bound manner along with interest from the date of siphoning off such amounts till the date of restitution;

e) Pass a decree under Section 92(1)(b) of the Code of Civil Procedure, 1908 appointing the Plaintiff No.2 & 3 as Trustees/ members of the Defendant No.9;

f) Pass a decree declaring the membership of the Defendant Nos. 1 and 2 to the defendant No.9 as null and void on the basis of not being "suitable" for furtherance of the cause of the Defendant No.9/ Trust;

g) Pass any other such further orders as this Hon'ble Court may deem fit in the facts and circumstances of the present case."

2. Summons in the suit were issued to the defendants on 22 nd February, 2017 and all the defendants have entered appearance except defendants No.7 & 8 who learned counsel for the plaintiffs accepts are proforma defendants being a part and parcel of the group of the plaintiffs and have filed an independent suit being CS(OS) 105/2016 in respect of the same trust.

3. Learned counsels for the defendants No.1 to 6 and 9 & 10 at the outset object to the maintainability of the present suit under Section 92 CPC in the absence of a leave having been sought from the Court and no application in respect thereof having been filed.

4. Countering this plea learned counsel for the plaintiff submits that an earlier suit being CS(OS) 501/1979 was filed in respect of the same trust where a society was created and a scheme was prepared for operating the trust properties. At the stage of disposal of the suit to which plaintiff No.1 was a party the Court granted leave to approach the Court in case of any further relief, thus learned counsel states that no further leave is sought. It is further contended that to ensure that there is no non-compliance the plaintiffs also sought for the permission from the Attorney General who also opined that in view of the decision in Suit No. 501/1979 no further leave is required to file the present suit.

5. A brief background of the present suit is that Union of India through its Secretary as plaintiff No.1 and Shri Shyam Krishna, S/o Shri Banarsidas Chandiwala filed Suit No. 501/1979 before this Court. In the said suit it was pleaded that certain premises known as Banarsidas Chandiwala estate situated in village Bahadur in the Union Territory of Delhi was transferred to the Government for running a Rural Eye Hospital in the name of late Shri Banarsidas Chandiwala with an out-patient dispensary vide the document of

transfer dated 5th December, 1952. The conveyance was a gift in favour of the Government with the condition that the property should be used for the particular purposes. However, after some time the Government of India expressed its inability to run the eye hospital in terms of the conveyance of gift and thus sought for re-transfer of the estate to the original donees. It is for this purpose that Suit No. 501/1979 was filed by the Union of India as plaintiff No.1 and Shyam Krishna as plaintiff No.2 with Shri Banarsidas Chandiwala Sewa Smarak Trust Society as first defendant.

6. Suit No. 501/1979 was decreed on 12th July, 1979 with the following findings:

"The suit before the Court is under Section 92 of the Civil Procedure Code for settling a scheme. The circumstances in which the suit has come to be instituted are set out in the plaint and I will refer to the same presently. Initially, the plaintiffs had applied for leave to file the suit which was granted by myself on April 25, 1979. Summons were issued to the Defendants but there was no appearance. The suit was adjourned to July 19, 1979. Before that date, IA No.1695 of 1979 was filed by the plaintiffs stating that the defendants had already filed their written statement on May 16, 1979 which was the date on which the judgment was to be pronounced but the case could not be taken up for hearing because of the strike. It was, therefore, prayed that the matter should be disposed of as a short matter as these was no dispute.

The circumstances of the case show that on May 16, 1979 there was a strike of lawyers, so, apparently on that day no written statement was filed. In any case learned counsel for the defendants do not contest the suit and in fact want orders to be passed in accordance with what is prayed for in the suit.

Although the matter is not contested, there are certain problems in this suit which are inherent because of the circumstances of the case. The facts are that certain premises known as Banarsi Dass Chandiwala Estate situated in village

Bahadur in the Union Territory of Delhi was transferred to the Government for running a rural eye hospital in the name of the late Shri Banarsi Dass Chandiwala with an out patient dispensary. A copy of the document of transfer is on record and is dated December 5, 1952. The conveyance was a gift in favour of the Government with a condition that the property should be used for a particular purpose. Clearly a trust was set up by reason of this document.

The plaint states that a rural eye hospital was set up and functioned for some time when it closed down. After the premises became idle they were handed over to the Cheshire Home Society for use as a convalescent home. This was objected by the original donors on the ground that the trust created initially was not being carried out. On the objection the land was got vacated and some other land was given to the Cheshire Home Society. The Government found that they could not run the rural eye hospital so the original donors have asked for the return of the land with the object of using the name for a some permanent charitable purpose. The plaint further mentions that the original purpose of the trust i.e. running a rural eye hospital or other institution for medical relief cannot be carried out and therefore, the property should now be used for some similar purpose or the same purpose.

The first defendant in the suit is Shri Banarsi Dass Chandiwala Sewa Samark Trust Society. The Memorandum of Association of this society is Annexure 'B'. The objects of the Trust include the propagation of the ideals and thoughts of Mahatma Gandhi, the provision of comprehensive medical facilities, the provision of financial society in the form of medicines and nutritious diet for the benefit of the poor patients, running and maintaining dispensaries etc. and the provision of education and several other charitable purposes. The society has already set up a girls' college called the Janki Devi Maha Vidyalaya and has represented to the plaintiffs that it can run institutions for public welfare. It is stated in the plaint that as the Government could not run a rural eye hospital proposed in the original deed of trust they want to propose a scheme for disposal of the trust society and a scheme has been annexed as

Annexure 'D'. There is also a declaration by the original donors that they will use the property for public charitable purposes. The Court has now been moved for settling and approving the scheme.

This matter came up for hearing before me on May 22, 1979 and May 24, 1979 when I considered the various matters connected with the scheme.

The requirements of Section 92 of the Code of Civil Procedure as now amended show that the Court may alter the original purpose of an expressly or constructive trust and allow the property or income of the trust or a portion thereof to be applied cypress in certain circumstances. I am satisfied that the circumstances just set out are suitable for application of the cypress doctrine as the Government is not in a position to set up a rural eye hospital that was originally intended by the trust document. This means that the property has to be used for some other purpose. It is noteworthy that the original donors want to use the property for charitable purposes. The Court has full power under Section 92 of the Code of Civil Procedure to remove a trustee, to appoint a new trustee and vest the property in trusted and it has also the power to settle a scheme. The scheme was at present envisaged requires the property to be vested in the first defendant which is itself a charitable society being Banarsi Dass Chandiwala Sewa Samarak Trust Society. As the Court has to take all possible steps permissible in law to see that the trust property is utilised for the purpose for which it was originally gifted, I have to see that as far as possible the property should be utilized for a rural eye hospital or for some similar purpose as near as possible to that object.

It is apparent from the facts that even the Government has not been able to run a rural eye hospital in the property in question. Obviously, it would be too much to expect a private party to be able to run a rural eye hospital and therefore, I am satisfied that the objects have to be varied and a scheme has to be settled. I have examined the original scheme as put forward and found that perhaps the object of the scheme deviated from the original objects, to an extent that was unnecessary. After

discussion of the questions involved a new scheme has been put forward today which I have considered and found appropriate. The document incorporating the amended scheme has been put into court today and also marked as Scheme D but it hears today's date. This scheme will not be made applicable to the property in question.

The result of the suit is that the suit will be decreed to the extent that the property known as Banarsi Dass Chandiwala Sewa Samarak Trust Society also known as Chandiwala Talab and Bagichi situated in the revenue estate of village Bahapur and describe in the Schedule being land measuring 48-17 having Khasra Nos. 1579/474, 475, 465, 467, 468 and 469 together with message, tenements, dwelling houses and buildings standing thereon, will now vest in the Shri Banarsi Dass Chandiwala Sewa Samarak Trust Society for the expressed purpose of carrying out the scheme which has been approved by this judgment. The scheme which is described as amended scheme has been filed in Court today. There will be no order as to costs. A decree may be drawn up accordingly. If any further order is necessary for implementing the scheme the Court may be moved. Furthermore, the possession of this property should be given over to the new trustees i.e. Shri Banarsi Das Chandiwala Sewa Samarak Trust Society. IA No. 1695 of 1979 also stands disposed of.

Learned counsel for the parties pray that the land is lying useless so urgent copies of the judgment and decree should be supplied. I direct that an extra copy of the judgment may be prepared and handed over to the counsel for the defendants on payment of the necessary charges. A decree should also be prepared expeditiously so that the trust property can be utilized as soon as possible for charitable purposes as visualised by this judgment.

[Emphasis supplied]"

7. A perusal of the decree dated 12th July, 1979 would show that the Court approved an amended scheme which was to be implemented to run

the Trust Society. The terms of the scheme as approved by this Court are:

"AMENDED SCHEME SCHEME 'D'

1. This scheme is for the proper administration of the trust property known as the "Banarsidas Chandiwala Estate" also known as the "Chandiwala Talab and Baghichi" in the revenue estate of village Bahapur more particularly described in the schedule hereunder written and more particularly delineated on the plan thereof hereto annexed (hereinafter referred to as the Trust Property).

2. The Trust Property which was donated by Shri Krishana, Brij Krishan and Sham Krishna all sons of L. Banarsi Das Chandiwala, Shrimati Bhagwati Devi, widow of L. Ram Kishan Das Chandiwala, Shri Laxmi Narain, son of Lt. Ram Kishan Das, Lalit Mohan, minor son of Laxmi Narain by and through his mother and natural guardian Smt. Sushila Devi, Ajay Narain and Vijay Narain, minor sons of Shri Narain by and through their mother and natural guardian Smt. Lakshmi Devi (hereinafter referred to as the "Original donors" which expression shall, unless repugnant to the context, include their heirs, executors, administrators and assigns) to the President of India for establishing a Rural Eye Hospital with an out patient dispensary or any other institution for medical relief, cannot be so used by the said done for the purpose.

3. The said Trust Property shall be placed at the disposal of "Shri Banarsidas Chandiwala Sewa Samarak Trust Society, New Delhi" (Hereinafter referred to as "Trust Society") for public charitable purposes, as detailed in the objects of the Memorandum of Association of the Trust Society.

4. The Trust Society shall establish manage, run and maintain comprehensive medical institution or institutions including yoga, parakritik Chikitsa, (nature cure), Ayurveda etc. etc. for research, training treatment and identification production and promotion of Ayurvedic medicines and health

foods and to do all that is necessary, incidental, conducive, ancillary and helpful for the attainment of the above objects, and for educational purposes connected with the above including, the education of children on the ideals set out in the aims and objects of the said Trust Society.

5. This Trust Society will be entitled to demolish the existing buildings or any part thereof and to add or reconstruct the same according to the requirements of the institution or institutions that it may establish or cause to establish in accordance with this scheme.

6. The institution to be established by the Trust Society shall be named after Shri Banarsidas Chandiwala as was desired by the original donors.

7. The Secretary to the Government of India, Ministry of Health or his nominee shall be a member of the Managing Committee of the institutions to be set up by the said Trust Society under the present scheme.

8. The said property shall vest in the said Trust Society as long as they use it for running medical relief and educational institutions including vocational training to fulfil the objects as detailed in their Memorandum of Association.

9. The Trust Society may apply for such directions of the Court as may be considered necessary, incidental, ancillary and conducive for the attainment of the objects of the Trust Society, under the present scheme."

8. Contention of learned counsel for the plaintiff in the present case is that since the plaintiffs are seeking decree for running the said society effectively in terms of scheme, the present suit under Section 92 does not require any further leave in view of the leave having already been granted by this Court while decreeing Suit No. 501/1979 whereas learned counsel for the defendants No.1, 3 to 6 and 9 submits that the prayers in the present suit is not in relation to the effective running of the society but also seeks amendment to the scheme as prayer 'c' seeks a decree declaring the original

donors as defined in the scheme to be automatically included as persons qualified for the membership of defendant No.9 etc. He also relies upon terms of the scheme which provides that it would be run as per the memorandum of association and the rules and regulations thereunder. It is stated that as per the rules and regulations of Shri Banarsidas Chandiwala Sewa Smarak Trust Society, Delhi Rule 2 provided for the membership of the Trust Society to consist of firstly, the present members of the Trust Society and secondly, persons who apply and are elected by the managing committee or the general body of the Trust Society.

9. Learned counsel for the plaintiff has taken this Court to the undertakings which were filed by the original donors which included plaintiff No.1 which was Annexure C to the Suit No. 501/1979, wherein the declarations of the original donors inter alia were:

"AND Whereas the said transferees have failed to establish the said convalescent home and have now decided to return the aforesaid property to the transferors on the condition that the said transferors (which term shall include their heirs executors, administrators and assigns) shall use the said property when returned for a public charitable purpose only.

AND Whereas the transferees herein before given an undertaking to use the said property returned to them for public charitable purposes only and in confirmation of the said undertaking agree and request jointly and severally to the transferee, the Govt. of India, to release and transfer the said property in favour of Shri Banarsi Das Chandiwala Sewa Samarak Trust Society, a society already registered and dedicated to a purely public charitable purpose."

10. Thus the property was transferred to the society for running the Trust in terms of the scheme and on the transferees giving an undertaking to use

the said property only and in confirmation of the said undertaking and sought release and transfer of the property in favour of the society dedicated to a purely public charitable purpose. Since the undertaking also forms integral part of the decree it cannot be said that it is only the scheme which was the basis of decree in the earlier suit and leave was granted only if actions in furtherance of the scheme were required to be implemented. In sum and substance the prayers in the present suit do fall within the ambit of the leave granted by this Court in Suit No. 501/1979 and thus on the facts of the present case this Court is of the considered opinion that no fresh leave is required to be sought for pursuing the present suit under Section 92 CPC.

11. Written statement of defendant No.2 and 10 are taken on record. Replications if any be filed within four weeks.

12. List before the learned Joint Registrar for admission denial of documents on 25th October, 2017 the date already fixed.

13. List before Court on 30th January, 2018.

IA 7380/2017 (u/O I R 10 CPC for deletion of D-4 from array of parties) and IA 2136/2016 (u/O XXXIX R 1&2 CPC) List on 30th January, 2018.

IA 7561/2017

1. By this application the plaintiff has sought for appointment of an independent chartered accountant under Order XXVI Rule 9 CPC to inspect the account of defendant No.9 Trust.

2. Learned counsel for the plaintiff submits that de-hors his allegations against defendant No.3 there is some material to show that the accounts of defendant No.9 Trust Society are not being maintained properly and hence an independent Chartered Accountant be appointed the expense whereof

would be borne by the plaintiff.

3. Learned counsel appearing for defendant No. 1, 3 to 6 and 9 though objects to the prayer but states that since defendant No.9 is working in a fair manner he would have no objection if this Court appoints an independent chartered accountant to inspect the records.

4. Consequently, M/s. KPMG India (P) Ltd., Building No.10, 8th Floor, Tower-B, DLF Cyber City, Phase-2, Gurgaon, Haryana- 122002 is directed to inspect the records of defendant No.9 and submit its report to the Court, expenses whereof would be borne by the plaintiffs. Defendants are directed to extend their full cooperation. The concerned Chartered Accountant from KPMG would give six specific dates and the time in advance for carrying out the inspection to the officers of defendant No.9 to be available with records at the place of Society. The report by M/s. KPMG India (P) Ltd. be submitted to this Court within two months.

5. Application is disposed of. Order dasti.

IAs 7800/2017 (u/O VIII R 1 r/w S.151 CPC by D-2) and IA 7799/2017 (u/O VIII R 1 r/w S. 151 CPC by D-10)

1. Learned counsel for the plaintiff does not oppose the condonation of delay in filing the written statement by defendant Nos.2 and 10 which is 11 days beyond the period of 90 days and 90 days respectively from the date of service of the documents. Consequently, the delay in filing the written statement by defendant Nos.2 and 10 is condoned.

2. Applications are disposed of.

IAs. 7562/2017 and 7563/2017 (u/O VIII R 10 CPC by plaintiffs) In view of the IAs 7799/2017 and 7800/2017 being allowed, these two applications are dismissed as infructuous.

(MUKTA GUPTA) JUDGE OCTOBER 09, 2017 'ga'