Legal Provisions of Section 92 of Code of Civil Procedure 1908, (C.P.C.

), India Public
Charities

In the case of any alleged breach of any express or constructive trust created for public purposes
of a charitable or religious nature, or where the direction of the court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more persons having an
interest in the trust and having obtained the leave of the court, may institute a suit, whether
contentious or not, in the principal Civil Court of original jurisdiction or any other Court
empowered in that behalf by the State Government within the local limits of whose jurisdiction
the whole or any part of the subject-matter of the trust is situate, to obtain a decree.

(a) Removing any trustee;

(b) Appointing a new trustee;

(c) Vesting any property in a trustee;

(cc) Directing a trustee who has been removed or a person who has ceased to be a trustee, to
deliver possession of any trust property in his possession to the person entitled to the possession
of such property;

(d) Directing account and inquiries;

(e) Declaring what proportion of the trust property or of the interest therein shall be allocated
to any particular object of the trust;

(f) Authorising the whole or any part of the trust property to be let, sold, mortgaged or
exchanged;

(g) Settling a scheme; or

(h) Granting such further or other relief as the nature of the case may require.

Save as provided by the Religious Endowments Act, 1863, or by any corresponding law in
force in the territories which, immediately before the 1st November, 1956, were comprised in
Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted
in respect of any such trust as is therein referred to except in conformity with the provisions of
that sub-section.

The court may alter the original purposes of an express or constructive trust created for public
purposes of. a charitable or religious nature and allow the property or income of such trust or
any portion thereof to be applied cy pres in one or more of the following circumstances,
namely:

(a) Where the original purposes of the trust, in whole or in part,

(i) Have been, as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the
instrument creating the trust or, where there is no such instrument, according to the spirit of the
trust; or

(b) Where the original purposes of the trust provide a use for a part only of the property
available by virtue of the trust; or

(c) Where the property available by virtue of the trust and other property applicable for similar
purposes can be more effectively used in conjunction with, and to that end can suitably be made
applicable to any other purpose, regard being had to the spirit of the trust and its applicability
to common purposes; or

(d) Where the original purposes, in whole or in part, were laid down by reference to an area
which then was, but has since ceased to be, a unit for such purposes; or

(e) Where the original purposes, in whole or in part, have, since they were laid down,

(i) Been adequately provided for by other means, or

(ii) Ceased, as being useless or harmful to the community, or

(iii) Ceased to be, in law, charitable, or

(iv) Ceased in any other way to provide a suitable and effective method of using the property
available by virtue of the trust, regard being had to the spirit of the trust.
Object of the section:
The object of the section in requiring the Advocate-General to institute a suit, or permission of
the court before suits are instituted, is to protect public interests and the interests of the
institution, on the one hand, and to discourage impecunious and improper persons indulging in
vexatious and improper suits against trustees, on the other.

Chairman Madappa v. Mahanthadevaru:

The main purpose of S. 92 (1) is to give protection to public trust of a charitable or religious
nature from being subjected to harassment by suits being filed against them. That is why it
provides that suits under this section can only be filed either by the Advocate-General or two
or more persons having an interest in the trust with the leave of the court.

The object is that before the Advocate-General files a suit or the leave of the court is granted
to two or more persons, the Advocate-General or the court would satisfy himself or itself that
there is a prima facie case either of the breach of trust or of the necessity for obtaining directions
of the court.

Application of the section:

Section 92 is a complete Code by itself in respect of suits based upon an alleged breach of any
express or constructive trust, created for public purposes of a charitable or religious nature. In
order to attract the application of the section the following four conditions are necessary, viz.,
(1) there must be a trust, express or constructive, for public purposes of a charitable or religious
nature; (2) the plaint must allege a breach of trust or necessity for direction as to administration
of that trust; (3) the suit must be in the interests of the public, i.e., it must be brought in a
representative capacity for the benefit of the public and not to enforce individual rights; and
(4) the relief claimed should be one of the reliefs set out in the section.

Grant of leave to file a suit is not a mere irregularity which can be cured but is a condition
precedent. The provisions of S. 92 are mandatory in nature in that respect and the defendant
cannot waive that right and confer jurisdiction on a court.

In regard to the granting of leave to a suit under S. 92, the court does not have to write a
reasoned order. It does not even have to give a notice to the defendant of an application for
leave to file as the order granting leave is of an administrative nature.
The District Judge while granting leave under S. 92, C.P.C., passes a judicial order. It should
indicate that the District Judge applied his mind before granting leave. However as rights of
the parties are not affected, it is not necessary to pass a detailed order but it would suffice if the
order indicates that it has been passed by the District Judge after due application of mind.
Section 92 does not contemplate notice to proposed defendants before granting leave.

It is not in the province of the High Court to question the correctness of the judgment of the
Supreme Court. There is a presumption that the Supreme Court considered all the aspects of
the matter before giving a declaration of law.

Bishwanath v. Sri Thakur Radha Ballabhji:

To invoke S. 92 of the Code of Civil Procedure, three conditions have to be satisfied, namely,
(i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a
breach of trust or a direction of the court is necessary in the administration of such a trust; and
(iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three
conditions is not satisfied, the suit falls outside the scope of the said section.

Prior to the amendment of S. 92 by the Amendment Act, 1976, the provisions of the section
authorised the Advocate-General, or two or more persons having an interest in the express or
constructive trust created for public purposes of a charitable or religious nature and having
obtained the consent in writing of the Advocate-General, to institute a suit in the case of any
alleged breach of such trust, but the new sub-section (1) permits, besides the Advocate-General,
any two or more persons having an interest in the trust and having obtained the leave of the
court, to institute a suit tcrobtain a decree in respect of the matters specified therein.

Further, a new sub-section (3), inserted by the Amendment Act, 1976, empowers the court to
alter the original purposes of an express or constructive trust created for public purposes of a
charitable or religious nature and to allow the property or income of such trust or any portion
thereof to be applied cy pres in one or more of the following circumstances, namely:

(a) Where the original purposes of the trust, in whole or in part, (i) have been, as far as may be,
fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions
given in the instrument creating the trust;
(b) Where the original purposes of the trust provide a use for a part only of the property
available by virtue of the trust; or

(c) Where the property available by virtue of the trust and other property applicable for similar
purposes can be more effectively used in conjunction with, and to that end can suitably be made
applicable to any other purpose, regard being had to the spirit of the trust and its applicability
to common purposes; or

(d) Where the original purposes, in whole or in part, were laid down by reference to an area
which then was, but has since ceased to be, a suit for such purposes; or

(e) Where the original purposes, in whole or in part, have, since they were laid down, (i) been
adequately provided for by other means, or (ii) ceased, as being useless or harmful to the
community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide
a suitable and effective method of using the property available by virtue of the trust, regard
being had to the spirit of the trust.

In order to bring a case within the purview of the provisions of section 92, C.P.C., the suit must
be a representative one, brought for the benefit of the public and to enforce a public right to
respect of an express or constructive trust upon a cause of action alleging a breach of such trust
or necessity for directions as to its administration, against a trustee de jure or de son tort of
such trust. But if the suit is between persons who individually claim a right to succeed to the
office of trustee the section has no application as the right set up is a personal right to act in a
particular office.

Section 92 is properly a representative suit filed in the interest of the public or the section of
the public who are interested in the proper administration of the trust and this does not cover a
private dispute between one of the beneficiaries and the trust through its mutawali. A suit under
S. 92 is a suit of a special nature.

Such suit can proceed only on the allegation that there is a breach of such trust or that directions
from the court are necessary for the administration thereof and it must pray for one or other of
the reliefs that are specifically mentioned in the section. A suit under S. 92 can proceed only
on the allegation that there is a breach of public trust of a religious or charitable character or
that the directions from the court are necessary for the administration of the trust.
In order to maintain a suit under S. 92 it must be shown that there exists a trust for public
purposes of a charitable or religious nature; that there is a breach of such trust or that the
direction of the court is necessary for the administration of the trust and the relief claimed in
the suit be one or more of the reliefs mentioned in the section.

Where any of these conditions is absent, S. 92 would have no application to the suit. If the suit
does not relate to a public trust but relates to private properties owned by an individual or to a
private trust, S. 92 would not apply.

In the case of Swami Parmatmanand Saraswati v. Ramji TYipathi, the Supreme Court
observed as follows:

A suit under S. 92 is a suit of a special nature which presupposes the existence of a public
trust of a religious or charitable character. Such a suit can proceed only on the allegation that
there was a 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 of the reliefs that are
mentioned in the section.

A private trust is outside the operation of S. 92 (Kailash Chand v. Bhupal Nath,

Section 92 applies only to a public trust. The distinction between a private and public trust
is that whereas in the former the beneficiaries are specific individuals who are ascertained or
capable of being ascertained, in the latter they are the general public or a class thereof and they
constitute a body which is incapable of ascertainment.

So to attract S. 92 it must be established that the beneficial interest in the trust is vested in an
uncertain and fluctuating body of individuals and the trust is of a permanent character. A
religious endowment must, therefore, be held to be private or public according as the
beneficiaries there under are specific persons or the general public or section thereof.

The U.P. Public Charitable and Hindu Religious Institutions and Endowments Act, 1976,
repealed the applicability of Ss. 92 and 93 of the Code of Civil Procedure to charitable
institutions and Hindu religious institutions and the endowments thereof to which the Act
applies.
Notwithstanding such repeal, however, all rules made, proceeding taken and other things done
by any authority or officer under the repealed Act shall be deemed to have been made, taken,
or done by the appropriate authority or officer under corresponding provisions of the 1976 Act
and shall have effect accordingly, until they are modified, cancelled or superseded under the
provisions of that Act.

Distinction between private and public trust:

Section 92 relates to those charities only in which the public are interested. The endowment
must be for a public purpose of a charitable nature and the beneficial interest must be vested in
the public in general or a considereable section thereof. The distinction between a private and
public trust is that whereas in the former the beneficiaries are specific individuals, in the latter
they are the general public or a class thereof.

While in the former the beneficiaries are persons who are ascertained or capable of being
ascertained, in the latter they constitute a body which is incapable of ascertainment. When there
is a deed of endowment the decisions whether the trust is public or private must turn on the
construction of the deed, aided by such considerations as are admissible in law.

But where there is no deed regard must be had to repute, usage of the object-matter concerned
and other circumstances. The word trust is used in S. 92, not in any technical sense and would
include Hindu or Muhammadan religious endowment.

Where removal of the trustees for misconduct or breach of trust is alleged the test which must
be applied is whether the acts or omissions complained of disclose conditions which render
intervention necessary in order to save the trust property. Errors of judgment or miscarriage of
discretion have to be disregarded unless they be sufficiently chronic. There must be want of
fidelity or dishonest and corrupt motives or deliberate or wilful neglect or deliberate
misfeasance.

The two persons referred to in S. 92 of the Code are two individuals and the fact that the two
persons were father and son and members of a joint Hindu family would not convert them into
one person for the purpose of that section.

Interest to maintain suit:

Section 92 of the Code gives the right of the suit only to persons interested and does not give
the right of suit only to those who have some direct interest, e.g., who are connected with the
management or who have some special interest greater than that of others who have interest in
the trust, but at the same time it restricts the right of suit so that only those who have a real
interest in the present and not merely a sentimental interest in future like that of a mere co-
religionist could file a suit. The object of the provision is to protect those who are in charge of
public trust from being harassed by litigation at the instance of busy bodies who have no real
or personal interest in the trust.

The words interest in the trust mean some such interest which is affected by mismanagement
so that the person is interested in having the affairs of the trust set right by court. The word
interest in S. 92, C.P.C., connotes a genuine and real concern to see that the trust is properly
administered for the purposes for which it is intended.

A suit under S. 92, C.P.C. against a public trust is not similar to a representative suit under
Order I, Rule 8, C.P.C. in all respects. Leave of the Court is a condition precedent for the
institution of a suit against a public trust for the reliefs set out in section 92, C.P.C., whereas
permission to sue under Order I, Rule 8 is not condition precedent and can be granted even
after the institution of suit and even at the appellate stage by allowing an amendment, if such
amendment does not materially change the nature of the suit.

Abatement:
When one of the two plaintiffs in a suit under S. 92 dies, no question of abatement would arise
even if others are not impleaded in his place and it is open to the remaining plaintiff to continue
the suit. If all the plaintiffs who obtain the sanction die after the valid institution of the suit,
members of the public interested in the trust can get themselves impleaded in the case and
prosecute it.

It has been held by the Supreme Court that a suit filed in a representative capacity does not
abate on the death of one of the plaintiffs. In Ajai Prakash Singh v. Abhai Prakash Singh and
others, it has been held that once a suit is instituted properly after obtaining permission it can
be continued by any member of the public interested in the subject-matter without obtaining
fresh sanction.
Once permission is granted, the bar against the filing of the suit stands removed and it can be
continued either by the remaining plaintiffs or by anyone of them or by even a member of the
public and even defendants can be transposed as plaintiffs to continue the suit.

In Shitla alias Shitla Prasad Shukla v. R.S. Misra, it has been held that the suit even on the
demise of both the original plaintiff could not abate. No fresh sanction of permission was
needed. Persons from the public who have interest in the property can continue the suit.

Relief not asked against some trustees:

Where in a suit filed under the provisions of S. 92, C.P.C., the plaintiffs do not ask for any
relief against some of the defendants the court cannot pass any decree as against those
defendants.

Judgment in rem:
A judgment in a suit under S. 92 has conclusive effect as against the entire world, either as a
judgment in rem or, in the alternative, by treating the whole world as a party to the suit. A suit
under S. 92, C.P.C. can be maintained only in respect of a public trust of a permanent character
and the judgment in such a suit would be a judgment in rem and not a judgment in personam.

If nobody raises any objection in a suit with regard to the public or permanent nature of the
trust, then after the decision given by the District Judge holding the property to be a public trust
and laying down a scheme for its administration it is not open to any party to challenge the
permanent nature of the trust.

Dispute as to title to temple property:

In a suit for the settlement of the scheme for the management of a temple it is not appropriate
for the court to investigate questions of title to property about which there is dispute.

Validity of representative suit:

The named plaintiffs being the representatives of the public at large which is interested in the
trust, all such interested persons would be considered in the eyes of law to be parties to the suit.
A suit under Section 92, C.P.C. is thus a representative suit and as such binds not only the
parties named in the suit-title but all those who share common interest and are interested in the
trust.
It is for that reason that Explanation VI to Section 11 of C.P.C. constructively bars by res
judicata the entire body of interested persons from re-agitating the matter directly and
substantially in issue in an earlier suit under Section 92, C.P.C.

Essential for creation of public trust:

Complete cessation of ownership of founder and vesting of property for public or religious
objects was essential. Where premises was used as Dharmashala by public for 125 years,
owners were maintaining complete control over such premises. Held, that mere long user as
Dharmashala would not make it Public Trust. Section ,92, C.P.C. would be attracted only when
a Public Trust comes into being and not otherwise.