http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: SWAMI PARMATMANAND SARASWATI & ANR,

       Vs.

RESPONDENT: RAMJI TRIPATHI & ANR.

DATE OF JUDGMENT21/08/1974

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ)

CITATION:  1974 AIR 2141            1975 SCR  (1) 790  1974 SCC  (2) 695  CITATOR INFO :  RF         1975 SC 371  (9)  D          1991 SC 221  (9)

ACT: Code  of  Civil   Procedure  (Act 5  of  1908)  s.  92--Suit under--Tests for.

HEADNOTE: The head of a math, executed a will by which he nominated  a 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 A section  of the worshippers installed K. an outsider, as the head of the math,  Thereafter,  the  appellants,  after  obtaining   the permission of the Advocate General. filed the suit under  s. 92, C.P.C., against the first respondent.  They alleged that the deceased head of the math did not execute the will while he  was  in sound disposing state of mind;  that  the  first respondent  had not the requisite learning in  Sanskrit  and the  Vedas;  that the first respondent was therefore  not  a qualified   person;  and  that  the  first  respondent   had committed  breach  of  trust of the  math  properties.   The appellants  prayed  for a 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 a direction for the  administration  of the  trust properties.  The trial court and High Court  held that the suit was only for the vindication of tile right  of K  and was therefore not maintainable under s. 92  and  dis- missed the suit. Dismissing the appeal to this Court, HELD  : ( 1) This Court would not disturb 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. [800E-G] (2)  A  suit  under s. 92, C.P.C., is a suit  of  a  special nature which presupposes the existence of a public trust  of a  religious  or  charitable character.  When  two  or  more persons  interested in the trust bring a suit purporting  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

be  under  the section the question whether the suit  is  to vindicate the personal or individual right of a 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.      The  suit   can proceed  only on the allegations 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 reliefs that are mentioned in  the section.   If  the  allegation of breach  of  trust  is  not substantiated  or the plaintiff had not made out a case  for any direction by the court for the proper administration  of the trust, the very foundation of the suit would fail;  and, even if all the other ingredients of a 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  a declaration  of their individual or personal rights  or  the individual or personal rights of any other person or persons in  whom they are interested then the suit would be  outside the  scope  of S. 92.  When the right to the office  of  the trustees is assented or denied and relief asked for on  that basis, the suit falls outside a. 92.  There is no reason  to think that whenever a suit is brought by two 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 was brought. [799D-800A] Sugra Bibi v. Hazi Kumma mia, (1969) 3 S.C.R- 83, followed. Shamukhan  v.  Govinda, A.I.R. 1937  Madras  92.   Tirumalai Devasthama  v. Krishanayya A.I.R. 1943 Madras 466, approved. 791 (3) If on the allegations in the plaint it is clear that the purpose of the suit was to vindicate the individual right of K to be the head of the math there is no reason to hold that the   suit   was  brought  to  uphold  the  right   of   the beneficiaries  of  the trust, merely because  the  suit  was filed  by two or MGM members of the public  after  obtaining the sanction of the Advocate General and one or more of  the reliefs  specified in the section are claimed therein.   The relief  regarding the appointment of K and  the  alternative relief to appoint some other person " the head, without  any allegations  as to the circumstances which would  invalidate K’s  installation  and without impleading him  as  a  party, shows the attempt to mako it appear that the appellants were disinterested champions of the right of the public.  If  the real  purpose  in  bringing the suit was  to  vindicate  the general  right of the public to have the  rightful  claimant appointed  to  the  office  them  was  no  reason  why   the appellants,  as  plaintiffs, omitted to implead or  at  lout refer  in the plaint to the three persons nominated  by  the deceased  head  of the math in his will to  succeed  in  the order  indicated  therein,  especially  when  the  appellant accepted  the  custom  of the math  to  have  the  successor nominated  by the incumbent for the time being. [800C-D,  F- H]. (4)  The  trial court as well as the High Court  found  that there  was  no evidence to substantiate the  allegations  of breach  of  trust against the fies respondent.   No  reasons were  given in the plaint for asking the directions  of  the court  for the administration of trust.  The plaintiffs  did not plead facts and particulars as regards any defect in the machinery  for  administration  which had  crept  in,  under custom or rules. which required rectification. [80OH-801C] (5) To we whether the suit falls within the ambit of a.  92,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

only  the allegation in the plaint should be looked into  in the  first instance.  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 foundation of fact or reason,  but  is made  only with a view to bring the suit under the  section, then such a suit must be dismissed. [801D-F] Association of B. D. B. Bagga Singh v. Gurnam Singh,  A.I.R. 1972  Rajasthan  263, Vahan Singh v. Achhar Singh  &  Others A.I.R.  1968  Punjab and Haryana 463, and  Radha  Krishna  & Others  v.  Lachmi narain and others A.I.R. 1948  Oudh  203. referred to. [The question whether the words "where the direction of  the court is deemed necessary for the administration of any such trust"  must be interpreted to Dan that where the court  has to  give  directions in the nature of framing  a  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 a new trustee when one  is  to  be appointed,  or to directions when there are  allegations  of maladministration amounting to breach of trust not decided]. [801C-D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1589  of 1973. Appeal  by Special Leave from the Judgment and  Order  dated the  11th  September, 1973 of the Allahabad  High  Court  in First Appeal No. 385 of 1962. D.  V. Patel, R. Dwivedi, 0. P. Shah and M. V.  Goswami  for the appellants. P.  Ram  Reddy,  R.  D. Sharma, S.  S.  Khanduja  V.  K.  S. Chaudhary,  Narayan Swarup and Yatendra Singh Choudhry,  for respondent no. 1. Pramod Swarup, for respondent No. 2. K.  S.  Ramamorthy,  Ambrish Kumar  and  Ramesh  Kumar,  for intervener. 792 The Judgment of the Court was delivered by MATHEW,  J.   The appellants, as plaintiffs,  filed  a  suit under s. 92 of the Civil Procedure Code alleging breach of a trust  created for a public purpose, of a  religious  nature and  praying for removal of the defendant, the head  of  the Math  in question claiming title to the office under a  will executed   by  the  predecessor-in-office  and  for   either reliefs.   The  District  Court dismissed the  suit  on  the Ground  that the suit will not 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 against that judgment. Adi  Shankaracharya founded Maths at four centres  in  India about  a  thousand years ago.  The math with  which  we  are concerned  was established by him in Himalayas.   This  Math was known by the name of Jyotir Math or 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 1940, a society known as Bharat Dharma  Maha- Mandal or Kashi made an effort to discover the Math and  the effort proved successful.  The relics of the Math were found near Badrikashram.  The land on which the relics were  found along with certain other property on the banks of Varuna  in Kashi was acquired by the Society and thereafter the Society created  an endowment of the land by a deed dated April  11,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

1941 in favour of Jyotir Math and Swami Brahmanand Saraswati (Brahmanand  for  short), a man renowned for his  piety  and vedic learning was installed as the Head of the Math. Brahmanand  died  on  May 20, 1953.  Before  his  death,  he executed a will which was published on June 8, 1953.  By the will,  he nominated a panel of 4 persons in-order of  choice indicated  in the will to succeed him as head of  the  Math. His first choice was Swami Shantanand 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  Jyotir Math.  A section of the worshippers installed Swami  Krishna bodhashram   (’Krishnabodhashram’   for   short)   as    the Shankaracharya of the Math on June 25, 1953, as according to them,  Brahmanand  did not execute any will  nominating  his successor,  and  even  if he executed a  will,  it  was  not executed  by him while he was in a sound disposing state  of mind and that in accordance with the custom and the rules of the Math, they were entitled to instal a person nominated by them as the Head of the Math. Respondent No. 1, who was installed on June 12, 1953, as the Head  of  the  Math,  came  into  possession  of  the   Math properties.   The  worshippers who supported  the  claim  of Krishnabodhasbram  filed  a  suit in January,  1954  in  the Munsiff  Court  at  Lucknow for  an  injunction  restraining respondent No. 1 from interfering with the Math  properties. In the meanwhile, respondent No. 1 applied fear a succession certificate  in the Court of District Judge,  Allahabad  and that  was  granted on December 12, 1956.   Thereafter,  four persons alleging 793 themselves  to  be  interested in  the  Jyotir  Math,  after obtaining permission of the Advocate General, filed the suit under  s. 92 of the Civil Procedure Code against  respondent No. 1. The main allegations in the plaint were that Brahmanand  did not execute the will while he was in a 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 of  the  Math,  that he came into  possession  of  the  Math properties and has committed breach of trust by applying for grant  of  succession  certificate  and  other  acts,   that Krishnabodhashram  was duly installed as the  Shankaracharya of the Math on June 25, 1953 and that direction of the Court was   necessary   for  the  administration  of   the   trust properties.   The  plaintiffs  prayed  for  the  removal  of respondent   No.  1  from  the  headship  of  the  Math,   a 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  accounts by respondent No. 1,  etc.,  and  to restrain him from prosecuting the application for succession certificate and also the mutation proceedings. The defendant (respondent No. 1) practically denied all  the allegations in the plaint and contended that the suit  being one   primarily  for  the  vindication  of  the   claim   of Krishnabodhashram to be the Shankaracharya of the Math,  was not maintainable under 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  Nc.  I being one of the nominees under the  will having  the prior claim would have been entitled to  succeed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

as  the Head of the Math but for the fact that lie  was  not learned  in  Sanskrit and the Vedas which  was  a  necessary qualification  for  holding the headship of  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  installed   as   the Shankaracharya  of  the  Math but that the suit  as  it  was brought    for   the   vindication   of   the    right    of Krishnabodhashram  to  the  headship of the  Math,  was  not maintainable under s. 92 of 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  primarily wanted a 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,  therefore,  the  Court should  appoint him as the Shankaracharya of the  Math.   In order  to  enable the Court to give  that  declaration,  the plaintiffs  wanted  a declaration that the  will  nominating respondent No. 1 as successor of Brahmanand was not executed by Brahmanand when he was in a sound disposing state of mind and that even if the will was 794 validly  executed,  respondent  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 Shankaracharya  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 installation 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 plaintiffs prayed  in the  alternative  for appointment of some  other  person  as Shankaracharya   ?  The  relief  for  the   appointment   of Krishnabodhashram  as the Shankaracharya of the Math by  the Court  and  the  alternative relief to  appoint  some  other person  as the Shankaracharya, without any allegation as  to the  circumstances which would invalidate, the  installation of  Krishnabodhashram and without impleading him as at party to 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. 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.  It is, therefore, clear that if the allegation  of breach  of trust is not substantiated cr that the  plaintiff had  not made out a case for any direction by the Court  for proper administration of the trust, the very foundation of a suit  under  the section would fail, and, oven  if  all  the other ingredients of a 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 a declaration of  their individual or personal rights or the individual or  personal rights  of  any  other person or persons in  whom  they  are interested,  then the suit would be outside the scope of  S.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

92  see Shamukhan v. Govinda (1) Tirumalai  Devasthanams  v. Krishnayya(2).  Sugra Bibi v. Hazi Kummu Mia(3) and Mulla  : Civil  Procedure Code (13th ed.), Voll. 1, p. 4001.  A  suit whose   primary   object  or  purpose  is  to   remedy   the infringement  of  an  individual right  or  to  vindicate  a private  right does not fall under the section.  It  is  not every  suit  claiming the reliefs specified in  the  section that  can  be brought under the section but only  the  suits which,  besides claiming any of the reliefs are  brought  by individuals as representatives of the public for vindication of  public  rights;  and in deciding whether  a  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 of a  religious  nature arc  precluded  from suing under the  section  to  vindicate their individual or personal rights.  It (1) A.I.R. 1938 Madras 92.   (2) A.I.R. 1943 Madras 466. (3) [1969] 3 S.C..R. 23. 795 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  to  the office  of a 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 a trust bring a suit purporting to be under s. 92,  the  question  whether the suit  is  to  vindicate  the personal or individual right of a 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 to uphold the right of the beneficiaries of  the trusts,  merely  because the suit was filed by two  or  more members  of the public after obtaining the sanction  of  the Advocate  General  and claiming one or more of  the  reliefs specified in the section.  There is no reason to think  that whenever  a 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 purpose of the suit  and  not the  reliefs  that  should decide whether it  is,  care  for vindicating the right of the public or the individual  right of the plaintiffs or third persons. The trial Court, after reading the allegations in the plaint and afterlooking 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 a 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 a 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  of the  suit  was  to  settle the  controversy  as  to  whether Krishnabodhashram  or respondent No. 1 had the better  claim

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

to  the  headship  of the Math and  to  the  possession  and management  of its properties by obtaining a declaration  of the Court.  If the real purpose in bringing the Suit was  to 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 indicated therein  especially  when  it is seen  that  the  plaintiffs accepted  the  custom  of the Math  to  have  the  successor nominated by the incumbent 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, 796 said  to  have  been  committed  by  respondent  No.  1.  In 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 no clear allegations 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 particulars  as  regards the  defect  in the machinery for administration  which  had crept in under custom or rules which required rectification, the  prayer for direction was a mere pretense to  bring  the suit under S. 92.  A 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 to  decide  for the purpose of this case whether  the  words ,,where  the direction of the court is deemed necessary  for the administration of any such trust" must be interpreted as meaning  that where the court has to give directions in  the nature   of   framing  a  scheme  or  ,otherwise   for   the administration of the trust or whether those words can refer only  to directions given to an existing trustee when  there is one or to a new trustee when one is to be appointed or to directions  when there are allegations of  maladministration amounting  to  breach of trust.  It is  sufficient  for  the purpose  of this case to say that the prayer  for  direction was a prayer in vacuum without any basis in reason or f acts. It is, no doubt, true that it is only the allegations in the plaint that should be looked into 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  (1), Solhan Singh v. Achhar Singh & Others(2) and Radha Krishna & Others  v.  Lachmi  Narain  & Others(3)  ].  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  a view  to bring the suit under the section, then a suit  pur- porting  to be brought under s. 92 must be dismissed.   This was  one  of the grounds 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 any order .is to costs. V.P.S.                              Appeal dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

(1)  A.I.R 1972 Rajasthan 263. (2)   A.I.R. 1968 Punjab & Haryana  463. (3)  A.I.R. 1948 Oudh. 203, 797