1

IN THE HIGH COURT AT CALCUTTA

Civil Appellate Jurisdiction
Original Side
IA GA No. 4 of 2021
IA GA No. 6 of 2023
IA GA No. 7 of 2023
With
APO 83 of 2020

Mr. Anil Rajkumar Mukerji & Ors.

Vs.
RT. REV Paritosh Canning & Ors.

Present:
The Hon’ble Justice Debangsu Basak
And
The Hon’ble Justice Md. Shabbar Rashidi

For the Appellants : Mr. Jishnu Saha, Sr. Adv.

Mr. Sourajit Dasgupta, Adv.
Mr. A. K. Awasthi, Adv.

For the Respondent : Mr. Suman Dutt, Adv.

Nos. 1 & 2 Mr. Paritosh Sinha, Adv.
Ms. Shrayashee Das, Adv.
Mr. Domingo Gomes, Adv.
Mr. B. P Tewari, Adv.
Mr. Sankalp Narain, Adv.

For the Respondent : Mr. Priyankar Saha, Adv.

No. 7 Mr. Rohit Amit Sathlekar, Adv.

For the Respondent : Mr. Ranjan Bachawat, Sr. Adv.

No. 8 Mr. Sayan Roy Choudhury, Adv.
Mr. Satyaki Mukherjee, Adv.

For RIO-ALMA : Mr. Ratnanko Banerji, Sr. Adv.

Mr. D. N. Sharma, Adv.
Mr. Kanishk Kejriwal, Adv.
Mr. Ramendu Agarwal, Adv.
Ms. Surbhi Dhanuka, Adv.
 2

Hearing concluded on : July 6, 2023

Judgment on : July 13, 2023

DEBANGSU BASAK, J. :-

1. Appellants have assailed an order dated August 18, 2020

passed by the learned Trial Judge clarifying an order dated

July 12, 2019 in the present appeal.

2. Respondent Nos 1 and 2 in the appeal have questioned the

maintainability of the appeal by way of an interim

application being IA GA No. 4 of 2021. An application being

IA GA No. 6 of 2023 has been filed seeking permission of the

Court to address the Court in the virtual platform. Another

application being IA GA No. 7 has been filed for framing a

scheme for management and administration.

3. Since, an issue of maintainability of the appeal had been

raised at the behest of the respondent nos 1 and 2 they were

allowed to address the Court first. The respondent no. 7 has

supported the respondent nos. 1 and 2 in the appeal and

they were heard immediately after the respondent nos. 1 and

2. Thereafter, the appellant, the respondent no. 8 and the

added respondent no. 10 had addressed the Court. All the

parties had addressed the Court on the point of

maintainability as also on the merits of the case.

 3

4. Learned advocate appearing for the respondent nos. 1 and 2

has submitted that, the suit filed by the plaintiffs primarily

challenged wrong termination of the four plaintiffs, and

challenged the appointment of the defendant nos. 3 to 6. The

plaintiffs had also prayed for framing a scheme for the

administration of the institution run by the Public

Charitable Trust. He has pointed out that, an ad interim

order dated July 12, 2019 was passed by the learned Trial

Judge restraining the Board of Governors of the school not

to take any decision regarding the management of the school

till the disposal of the interim application. The Ex-officio

Governors had been restrained from appointing any

Additional Governors. The Appeal Court had by an order

dated July 25, 2019 appointed administrator over the board

of Ex-officio Governors. Two sets of appeal had been filed

before the Hon’ble Supreme Court. Such appeals before the

Hon’ble Supreme Court had been withdrawn as it was

agreed that the interim arrangement put in place by the

order dated July 12, 2019 stood restored. An application for

effecting of the order dated July 12, 2019 had been made in

which an order dated August 19, 2020 was passed. The Trial
 4

Court had observed by the impugned order dated August 18,

2020 that the order dated July 12, 2019 needs to be

clarified. The order dated July 12, 2019 was not intended to

overrun into the next term. In the appeal from the order

dated August 20, 2020, the Appeal Court passed an interim

order dated October 8, 2020 which was clarified by the

Hon’ble Supreme Court. The Hon’ble Supreme Court had

observed by the order dated November 27, 2020 that the

order dated October 8, 2020 sets out the contours of the

disputes and that it did not take away the right of the

defendants to contend that such issues need not be decided

in the appeal.

5. Learned advocate appearing for the respondent nos. 1 and 2

has submitted that, the application being GA No. 1517 of

2019 in which, the initial order of injunction dated July 12,

2019 was passed does not contain any prayer inviting the

Court to frame any interim scheme of management. In any

event, formulation or modification of the existing scheme, if

at all, is required to be made, that should be decided at the

final hearing of the suit. The parties have to be given an

opportunity to lead evidence with regard to such an issue. At

 5

the final hearing, the Court has to examine as to whether,

there were breach of trust as claimed or whether the

plaintiffs were not suing to vindicate their personal or

individual rights or whether there was any case of breach of

trust made out. In support of such contentions, he has relied

upon AIR 1974 Supreme Court 2141 (Swami

Paramatmanda Saraswati & Anr. Vs. Ramji Tripathi

and Anr.) and 2008 Volume 4 Supreme Court Cases 115

(Vidyodaya Trust vs. Mohan Prasad R and Ors.).

6. Learned advocate appearing for the respondent nos. 1 and 2

has submitted that, the suit was filed after obtaining leave

under Section 92 of the Code of Civil Procedure, 1908. The

leave had been obtained ex-parte. Leave under Section 92 of

the Code of Civil Procedure, 1908 granted had been revoked

subsequently. Against such order of revocation an appeal

had been preferred. The Appeal Court had observed that, the

maintainability of the Civil Suit is required to be decided as a

preliminary issue. He has relied upon 2022 Volume 7

Supreme Court Cases 644 (Satyanath and Anr. Vs.

Sarojamani), in support of his contention that, till such

time the issue of leave is decided, Court should not exercise

 6

any power under Section 92 of the Code of Civil Procedure,

1908.

7. Learned advocate appearing for the respondent nos. 1 and 2

has submitted that, there was no pleading in the plaint

warranting the Court to frame a scheme. Moreover, the

schools concerned are minority institutions. Management

and administration of a minority institution is within the

exclusive domain and fundamental right of the institution.

There is no allegation of mis-management affecting the

interest of the students. No ground under Section 92 of the

Code of Civil Procedure, 1908 has been made out in the

plaint.

8. Learned advocate appearing for the respondent nos. 1 and 2

has submitted that the Will of late Major General Claude

Martin provides for setting up of educational institution by

the Supreme Court. Article 24 of the Will of late Major

General Claude Martin has given the name of the school and

makes provisions of children of Christian community of any

class to be taken care of by the school. The Supreme Court

by its decree dated October 22, 1832 had constituted the

school. He has drawn the attention of the Court to the

 7

contents of the decree dated October 22, 1832 and

submitted that, directions for appointment of Ex-officio

Governors, Additional Governors and Secretary for the

purpose of management of the school were given. The decree

has also directed the school to recruit students among

Christian population of Kolkata and every children of

Christian community to receive education upon payment of

fees. He has referred to the order dated June 6, 1944 which

was passed on the petition of the then Advocate General of

Bengal where it was expressly provided that no person other

than Christian can be appointed as Governors.

9. Learned advocate appearing for the respondents nos. 1 and

2 has contended that the decree as well as the constitution

establishes that no person other than a Christian is eligible

to be appointed as an Ex-officio Governor of the school. He

has interpreted the clause “for the time being” in the order

dated June 6, 1944 to mean that, if the office of the Ex-

officio Governor is not occupied by a person professing

Christian religion he cannot be appointed and other Ex-

officio Governors will take that position.

 8

10. Learned advocate appearing for the respondent nos. 1 and 2

has submitted that, there were attempts earlier to interpret

the decree and the constitution to mean that non-Christian

can be appointed as Ex-officio Governor and that such

attempts failed. In this regard he has referred to the orders

dated February 1, 1968, the order dated July 12, 1966 and

the order dated March 1, 2000 passed by the Division

Bench. Relying upon 1992 Volume 1 SCC 558 (St.

Stephen’s College vs. University of Delhi), 1974 SCC 717

(Ahmedabad St. Xavier’s College Society & Anr. Vs.

State of Gujarat), 2002 Volume 8 Supreme Court Cases

481 (T.M. Pai Foundation vs. State of Karnataka),

learned advocate appearing for the respondent nos. 1 and 2

has contended that, since the school is a minority institution

it is not permissible for the Court to interfere in its

administration.

11. Respondent no. 7 has supported the contentions raised by

respondent Nos. 1 and 2. Learned advocate appearing for the

respondent no. 7 has contended that, Court should not

interfere in the management of a minority institution. In

addition to the authorities relied upon by the respondent

 9

nos. 1 and 2, learned advocate appearing for the respondent

7 has relied upon 2020 Volume 6 Supreme Court Cases

689 (S.K. Mohd. Rafique Vs. Contai Rahamania High

Madrasah) and 2020 Volume 8 Supreme Court Cases 705

(Christian Medical College Vellore Assn. Vs. Union of

India) in such context.

12. With regard to the quoram specified in the modified decree,

learned advocate for the respondent no. 7 has contended

that such quoram is limited to the valid eligible members

and since only two of the 12 ex-officio members profess

Christian faith the quoram should be calculated from

amongst those two members. Learned advocate appearing

for the respondent no. 2 has relied upon 2016 Volume 6

Supreme Court Cases 126 (Arobindo Ashram Trust &

Ors. Vs. R. Ramaathan & Ors.) in support of his

contention that plaintiffs cannot seek vindication of

personal or private rights in a suit under Section 92 of the

Code of Civil Procedure, 1908.

13. Relying upon 2012 Volume 8 Supreme Court 148 (Union

of India Vs. Ibrahim Uddin & Another), 2001 Volume 3

Supreme Court Cases 68 (Ritona Consultancy Pvt. Ltd.

 10

& Ors. Vs. Lohia Jute Press & Ors.), 1999 Volume 2

Supreme Court Cases 377 (Sree Jain Swetambar

Terapanthi Vid(s) vs. Phundan Singh & Ors.), 2015

Volume 2 Supreme Court 156 (Meena Chaudhary Vs.

Commr. Delhi Police) and 1983 Volume 4 Supreme Court

Cases 625 (Cottan Corpn. of India Ltd. Vs. United

Industrial Bank Ltd.) learned advocate appearing for the

respondent no. 7 has contended that no relief should be

granted beyond the pleadings. He has relied upon 2017

Volume 13 Supreme Court Cases 542 (Ayan Chatterjee

Vs. Future Technology Foundation Inc.) to contend that a

suit is required to be decided on the basis of pleading and

evidence adduced and not by way of interlocutory

application.

14. Learned advocate appearing for the respondent no. 7 has

submitted that, the plaintiffs obtained benefit of being

appointed as members of the Board of Governors. Having

obtained such benefits they cannot challenge the same

instrument by virtue of which they are benefited. In support

of such contention he has relied upon 1992 Volume 4

Supreme Court Cases 683 (R. N. Gosain vs. Yashpal

 11

Dhir) and 2020 Volume 6 Supreme Court Cases 387

(Bhagwat Sharan Vs. Purushottam).

15. Learned advocate appearing for the respondent nos. 7 has

drawn the attention of the Court to the earlier orders passed

by the High Court in the two previous proceedings and

submitted that, the appellants are not entitled to any reliefs.

16. Learned senior advocate appearing for the appellants has

submitted that, two schools one for boys’ and one for girls’

were established as a public charitable institution under the

Will of Major General Claude Martin. He has drawn the

attention of the contents of the will and contended that

pursuant to the charitable objects the schools were

established by the Supreme Court of Judicature at Fort

William in Bengal in old equity suit of 1832. This Hon’ble

Court has inherited the old equity suit in which the decree of

1832 was passed and as such is the guardian of the schools

at Kolkata and consequently exercises parens patriae

jurisdiction over the 2 schools.

17. Referring to 1999 Volume 3 Supreme Court Cases 115

(Executive Officer Arthanareswarar Temple Vs. R.

Sathyamoorthey & Ors.), 2011 Volume 4 Supreme Court

 12

Cases 454 (Aruna Ramchandra Shanbaug Vs. Union of

India & Ors.) and 2011 Volume 4 Kolkata Law Times

226 (Mrigan Maity & Ors. Vs. Daridra Bandhab Bhandar

& Anr.), learned Senior Advocate appearing for the

appellants has submitted that, Courts have a parens patriae

jurisdiction over the Trusts for charitable and religious

purposes and can always act in public interest in respect of

thereof.

18. Learned Senior Advocate appearing for the appellants has

submitted that, the decree dated October 22, 1832 as

modified on June 6, 1944 provided that the schools must be

administered by a Board of 12 Ex-officio Governors which

would, in turn, be entitled to appoint four Additional

Governors every year. Admittedly, according to him most of

these Ex-officio posts have ceased to exist since such Ex-

officio post are manned by persons who are not Christian. As

a result it is only the Bishop of Kolkata and a Minister of St.

Andrews Church in Kolkata which are now running the

schools. The Minister of St. Andrews Church in Kolkata is

nominated by the Bishop of Kolkata and as such the school

 13

is essentially being run by way of one Ex-officio Governor

that is the Bishop of Kolkata.

19. Learned Senior Advocate appearing for the appellants has

submitted that, the constitution of the La Martiniere School

at Kolkata makes it clear while it refers to the Board of

Governors that it is a composition of 12 Ex-officio Governors

and the 4 Additional Governors to be elected only in terms

thereof and are collectively referred to as the Board of Acting

Governors. He has referred to Article 7 of the Constitution

which provides for the quoram. According to him the present

Board of Governors has been acting and continuing to act

without a quoram. All decision of the Board of Governors

without the requisite quoram of at least four Ex-officio

Governors have been and are illegal and wrongful. That, by

itself, according to him, has constituted the breach of the

express trusts created by the decree dated 1832 modified in

1944 for which Section 92 of the Code of Civil Procedure,

1908 can be invoked. He has contended that, this Hon’ble

Court is entitled to and should settle a scheme of the trusts

particularly when the whole scheme is no longer workable

and grant such relief as required.

 14

20. Learned Senior Advocate appearing for the appellants has

contended that, the opposition of the respondent nos. 1 and

2 on one post and the respondent no. 7 on the other, are

strange. He has contended that, such respondents did not

explain why the scheme should not be moulded to ensure

participation of 12 Ex-officio Governors for the

administration of the school. Opposition of such respondents

has shown that they were interested only in perpetuating the

wrongful control over the schools.

21. Learned Senior Advocate appearing for the appellants has

referred to the pleadings of the plaint and have submitted

that the first paragraph along with various other pleadings of

the plaint establishes that the suit was under Section 92 of

the Code of Civil Procedure, 1908. He has distinguished the

authorities cited on behalf of the respondent nos. 1, 2 and 7

with regard to the maintainability of the suit.

22. Learned senior advocate appearing for the appellants has

relied upon 1997 Volume 3 Supreme Court Cases 443

(Tayabbhai M. Bagasarwalla and Another), 2021 Volume

15 Supreme Court Cases 338 (Rama Narang Vs. Ramesh

Narang And Others) and 2006 Volume 5 Supreme Court

 15

Cases 638 (Ramesh V. Desai & Ors. Vs. Bipin Vadilal

Mehta and Ors.) in support of the contention that interim

relief can be granted pending decision of a preliminary issue

at the trial of a suit.

23. Learned Senior Advocate appearing for the appellants has

submitted that, the Division Bench in the appeal have

passed an order dated October 8, 2020 observing that it is

necessary to revisit the of the composition of the Board of

Governors of the school. The Division Bench had directed all

the respondents to indicate how the new constitution of the

Board of Governors of the school should be made. An appeal

had been preferred against such order which was disposed

of by the Hon’ble Supreme Court by its order dated

November 27, 2020 without interfering with the order dated

October 28, 2020.

24. Learned Senior Advocate appearing for the appellants has

contended that, the schools were not established as minority

institutions. He has contended that, neither the Will of Major

General Claude Martin nor the decree dated October 22,

1832 specify that the school was to be administered by

Christians only. The decree had been modified on June 6,

 16

1944 which provided that the Ex-officio Governors of the

school must profess the Christian faith. The school has

obtained a minority certificate in the year 2010 which does

not however show that the same is a religion based minority

institution.

25. Learned Senior Advocate appearing for the appellants has

submitted that, the modified decree dated June 6, 1944

provided that Ex-officio Governors would be of Christian

faith for the time being. He had submitted that, the Court

has retained the jurisdiction to modify the decree from time

to time, as the occasion arises. Since out of 12 Ex-officio

members to the Board of Governors, most are no longer

Christians, particularly in view of the quoram provided by

the Constitution, it would be appropriate that some

arrangement was made for the purpose of constitution of a

valid Ex-officio Board of Governors of the school.

26. Referring to the order dated February 1, 1968 and the order

dated March 1, 2001 by a Division Bench latter of which was

passed in a suit questioning the acts of the Board of

Governors in leasing out a portion of the school ground,

learned Senior Advocate appearing for the appellants has

 17

contended that such order did not take into account the fact

that the Board of Governors were without a quoram. In any

event, the same was an interlocutory order.

27. Learned Senior Advocate appearing for the respondent no. 8

has supported the contentions of the appellants. He has

submitted that his client is an ex-student of the school and

is a beneficiary under the Will of Major General Claude

Martin. He has referred to the Will of Major General Claude

Martin and contended that, Late Major General Claude

Martin was an army man and not a missionary. Though

born as a Roman Catholic he had respected all religions. He

had desired to do charity for the people of all faith, Apart

from other bequests for other charitable works mentioned in

the will a bequest was made to the town of Kolkata under

the protection of the Government or the Supreme Court to

devise an institution most necessary for public good or

establishing a school to be named La Martiniere. As Major

General Claude Martin was unable to establish a

management for the institution, he had hoped that the

Government or the Supreme Court would devise the best

institution for public good as per his desire.

 18

28. Learned senior advocate for the respondent no. 8 has

contended that the intention of the founder was not to

sponsor a missionary school or to have a school exclusively

for the benefit of Christians or to be run exclusively by them.

On the contrary Major General Claude had envisaged a

school for the public good for the town of Kolkata and it was

to be under the protection of the Government or the

Supreme Court without any restrictions on the religion of the

managers.

29. Learned Senior advocate appearing for the respondent no. 8

has referred to the decree dated October 22, 1832 and

contended that the intention of the settlor was retained and

the composition of the Board of Governors was secular and

not restricted to Christians alone. Further, the Court had

retained full authority to alter the scheme for better

management and administration. He has submitted that, the

decree dated May 23, 1946 amended the decree dated

October 22, 1832. He has contended that, the power and

authority of the Court to appeal the scheme for better

management of the school continues to remain.

 19

30. Learned Senor Advocate appearing for the respondent no. 8

has contended that, the judgement and order dated

February 1, 1968 does not change the position with regard

to the composition of the Board of Directors. He has

contended that, such judgement and order is not an

authority for the proposition that the nature of the school

cannot be changed. In fact, it has held that the Additional

Governors can be non-Christians and left the issue with

regard to the modification of the management of the school

at the final hearing of the suit.

31. Learned Senior advocate appearing for the respondent No. 8

has referred to the judgement and order dated July 12, 1996

and March 1, 2000 passed in the old equity suit and

contended that, the observation by the Division Bench with

regard to the Christian character of the school was without

jurisdiction. In support of such contention, he has relied

upon 1999 Volume 6 Supreme Court Cases 632 (T.K.

Lathika Vs. Seth Karsandas Jamnadas). He has

contended that, supervening circumstances justify the

alteration of the scheme and that the bar of res judicata will

not apply. In support of such contention he has relied upon

 20

AIR 1964 Supreme Court 107 (Ahmad Adam Sait and

others vs. M. E. Makhri and others).

32. Emphasizing upon the necessity for the Court to intervene

learned Senior Advocate for respondent no. 8 has contended

that, changed circumstances have created a vacuum in

Board of Governors of the school. Out of 12 Ex-officio

members to the Board of Governors only 2 are occupied.

This has resulted in requisite quoram to be absent. These

two Ex-officio Governors, who do not constitute the quoram

are holding meetings and are appointing Additional

Governors and removing the same at their whims which they

are not entitled to. None of the respondent No. 1 and 2 are

eligible to be the Ex-officio Members of the Board of

Governors. Presently, the Board of the Ex-officio Board of

Governors of the schools are comprised of Church of North

India Nominees who are neither independent nor a

representative body of 12 eminent persons from different

fields as has been contemplated by the founder and this

Hon’ble Court.

33. Relying upon AIR 1956 Supreme Court 382 (Vikrama Das

Mahant vs. Daulat Ram Asthana And Others) learned

 21

Senior Advocate appearing for the respondent no. 8 has

contended that, the Court retained the power to pass

necessary orders. In view of the Court being the guardian of

the school and the suit being in respect of a public trust it

was the duty of the Court to safeguard the beneficiary and

act for the benefit of the trust.

34. Relying upon 2021 Volume 15 Supreme Court Cases 338

(Rama Narang Vs. Ramesh Narang And Others) learned

Senior Advocate appearing for the respondent no. 1 has

contended that objections with regard to jurisdiction do not

prevent the Court from passing interim orders.

35. Learned Senior Advocate appearing for the respondent no.

10, has submitted that even though the appeal was against

the order dated August 18, 2020 the appeal Court has the

powers to grant the reliefs sough for in the appeal. The Court

can mould the relief considering the change of

circumstances to do complete justice. In support of such

contention reliance has been place on 2009 Volume 10

Supreme Court Cases 197(Jai Prakash Gupta Vs. Riyaz

Ahamad And Another) and 2014 Volume 8 Supreme

Court Cases 294 (Gaiv Dinshaw Irani And Others Vs.

 22

Tehmtan Irani And Others). He has referred to the

provisions of Order 41 Rule 33 of the Code of Civil

Procedure, 1908 for the proposition that the Court can grant

such relief.

36. Learned Senior Advocate appearing for the respondent no.

10 has submitted that the interlocutory application being GA

1517 of 2019 was being considered along with GA 1532 of

2019. Such application had the necessary pleadings to grant

reliefs regarding mismanagement of the schools. He has

contended that in the event this Hon’ble Court refuses to

pass any order despite considering the complete failure of

the present scheme serious prejudice would be caused to the

students of the school. This Hon’ble Court then would be

condoning and perpetuating express illegality of the Board of

Governors. Two Division Benches had passed orders for the

constitution of the Board of Governors. He has contended

that in absence of specific prayer for devising a scheme does

not prevent the Court from exercising its inherent powers.

He has relied upon AIR 1959 Andhra Pradesh 126

(Jangam Pumpaiah vs. H. Hanumantha Reddi) learned

Senior Advocate appearing for the respondent No. 10 had

 23

submitted that, this Court has jurisdiction and power to

regulate and modify the scheme of management of the

schools. He has contended that the order dated March 1,

2020 passed in the Old Equity Suit does not operate as res

judicata. The existing scheme of management is archaic and

non-workable. The contention of the respondent nos. 1, 2

and 7 that the Court should not interfere with the scheme is

fallacious. The judgements relied upon by the respondent

nos. 1, 2 and 7 are non-applicable to the facts of the present

case.

37. The appeal has arisen out of an order dated August 18, 2020

passed by the learned Trial Judge in an interlocutory

application of the plaintiffs. The appellants as plaintiffs had

filed a suit alleging mismanagement in the administration of

two schools, and claiming reliefs relating to appointments to

the additional Board of Governors of the two schools and

framing a scheme for the administration and management of

the two schools.

38. Late Major General Claude Martin had left behind a will

dated January 11, 1800 where he had bequeathed various

assets for the purpose, inter alia, of setting up two schools in

 24

Kolkata. Clause 24 of such will has relevance and the same

is as follows: –

“Article Twenty Four (24) - I give and bequeath the

sum of two hundred thousand Sicca Rupees to the Town
of Calcutta for to be put at interest in Government papers
or the most secure mode possible and this principal
interest to be put under the protection of Government or
the Supreme Court that they may device an institution the
most necessary for the pubic good of the Town of the
Calcutta or cestablishing a School for to educate a certain
number of children of any sex to a certain age and to
have them put apprentice to some profession at the
conclusion of their school and to have them married when
at age and I also wish that every year a premium of few
Rupees or other thing and a medal be given to the most
deserving or virtuous boy or Girl or to both , to such that
have come out of that School , or that are still in it and
this to be done on the same day in the month died , that
day those that are to be married are to be married and to
have a sermon preached at the Church to the Boy and
Girl of the School afterwards a public Dinner for the whole
and a toast to be drunk in memorandum of the
Fouundator this Institution is to bear the Title of La
Martinier and to have an inseription either on stone or
marble in large character to be fixed on any part of the
school on it wrote instituted by Major General Martin Burn
the 6th January , 1935 at Lyon who died the day month
and year mentioning The day month and year and buried
at mentioning the place and as I am little able to make
any management for such on institution I am in hope
government or the Supreme Court will devise the best
institution for the public good and to have it as I said
 25

above mentioned, the name of the institutor. After every

Article of my or this will and Testament is carefully
settled and every artiolo provided and paid for the several
pension or other gift, donation institution and other any
sum remaining may be made to serve first to buy or
bulled a house for the institution as that it may be made
permanent and perpetual by socuring the interest by
government paper either in India or Europe that the
interest annually may support the institution for this
reason I give and bequeath one hundred and fifty
thousand sicca Rupees more according the proportion that
may remain after every Article of this Testament is
fulfilled then this sum to be added for the permancy of the
institution making the sum of three hundred and fifty
thousand sicca Rupees.”
39. The Supreme Court of Judicature at Calcutta had dealt with

the will of late Major General Claude Martin in Old Equity

Suit. The Supreme Court of Judicature at Calcutta had

passed a decree dated October 22, 1832 in the Old Equity

Suit directing inter alia: –

i. a school called and distinguished by the name of La

Martiniere be established

ii. the following persons (their consent having first been

obtained) shall be ex-officio Governors of the school

namely

a. the Governor General

 26

b. the members of Council of Judges of the

Supreme Court

c. the Bishop of Calcutta

d. the Advocate General

provided always that if any of such person shall not consent

to become a governor of the school, an application shall be

made to the Supreme Court to appoint some other person in

view of every person so refusing

iii. the ex-officio governors had been empowered to annually

elect and nominate four Additional Governors, who shall,

during the year for which they shall be so nominated and

elected, have equal power and authority with the Ex-officio

Governors of the school in the management and direction

thereof and in all matters relating thereto

iv. there shall be a paid secretary who shall be nominated and

appointed by the governors of the school

40. In terms of the decree dated October 22, 1832, the Advocate

General of Bengal had applied for amendment of such decree

which was allowed by a decree dated May 23, 1946. The

amendment to the decree dated October 22, 1832 had been

made by this Hon’ble Court in the Old Equity Suit. By the

 27

amendment, the Viceroy and Governor General of India was

made the visitor of the school. It had directed that, there

shall be 12 ex-officio governors in substitution for the Board

of Governors appointed by the decree dated October 22,

1832 being: –

i. Governor of Bengal

ii. the Chief Justice of Bengal

iii. Bishop of Calcutta

iv. member of Viceroy’s council in charge of education

v. one of the members of the executive Council of the

Governor of Bengal to be nominated from time to time

by the Governor

vi. one of the puisne judges of this Hon’ble Court to be

nominated from time to time by the Chief Justice

vii. the Advocate General of Bengal

viii. the General Officer in command of the presidency.

ix. The Director of Public Instruction, Bengal

x. the chairman of the Corporation of Calcutta

xi. the Minister of St Andrews Church of the Church of

Scotland in Calcutta

xii. the president of Bengal Chambers of Commerce

 28

provided always that no person for the time being

holding or officiating in any of such offices who does

not profess the Christian religion shall exercise or

perform the powers or duties of an Ex-officio

Governor

41. In respect of the affairs of the school, a suit being Suit No.

2602 of 1967 had been filed in this Hon’ble Court where an

interlocutory order dated February 1, 1968 was passed. This

Court has been informed that, such suit was struck off from

the register of suits in 1969. The judgement and order dated

February 1, 1968 therefore has lost significance in view of

the suit in which it was passed no longer remaining.

42. The then existing Board of Governors had applied to the

High Court in the Old Equity Suit seeking sanction of this

Court to enter into an agreement for development of a

portion of the land situated at the boys school in order to

augment the income for the better administration and

management of the school. Such applications had been

disposed of by a judgement and order dated July 12, 1996.

The Court had noticed the composition of the Board of

Governors as stipulated by the decree dated May 23, 1946

 29

and observed that most of the posts were non-existent. The

Court had reworked the composition of the Board of

Governors of the school.

43. An appeal had been carried from such judgement and order

dated July 12, 1996. The appellate Court had, by the

judgement and order dated March 1, 2000, set aside the

direction of re-working of the Board of Governors and

appointment of new Board of Governors.

44. This Court had retained the jurisdiction to pass orders in the

Old Equity Suit while passing the initial decree and the

amendment thereof. Jurisdiction of this court had been

invoked earlier in the old equity suit relating to the

management and affairs of the 2 schools. Independent of the

pendency of the Old Equity Suit, approach had been made to

this Hon’ble Court relating to the management and

administration of the two schools in 1967 by way of a suit,

which suit was subsequently struck off the register.

45. In the present suit, the plaintiffs had obtained leave under

Section 92 of the Code of Civil Procedure, 1908 ex parte.

Such leave had been revoked. On appeal from the order

revoking the leave, the appellate Court had directed that the
 30

issue of maintainability of the suit under Section 92 of the

Code of Civil Procedure, 1908 would be decided at the trial of

the suit. This court has been informed that, although the

writ of summons had been served upon the defendants, they

did not file written statement. The suit has not been set

down for trial. The issue of Section 92 of the Code of Civil

Procedure, 1908 is yet to be finally decided.

46. Swami Paramatmanand Saraswati (supra) has held that,

even if all other ingredients of a suit under Section 92 of the

Code of Civil Procedure, 1908 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 Section 92.

47. Swami Paramatmanand Saraswati (supra) has been

noted in Vidyodaya Trust (supra) and in the facts of that

case, the suit was found to be not maintainable as the same

was for settling private or personal disputes.

 31

48. The above two authorities had been noted in Aurobindo

Ashram Trust and others (supra) and it was held that, the

suit was not maintainable in the facts of that case.

49. Sathyanath (supra) had set aside an order directing

framing of a preliminary issue with regard to the plea of res

judicata and directed all the issues to be heard and decided

by the trial court.

50. In Ahmad Adam Sait and Others (supra) the Supreme

Court while dealing with a suit instituted under Section 92

of the Code of Civil Procedure, 1908 observed that, even after

a scheme was framed for a suit property instituted under

Section 92, if supervening consideration justified its

alteration of modification, the bar of res judicata cannot be

pleaded against such alteration or modification. It has held

that, a subsequent suit under Section 92 of the Code of Civil

Procedure, 1908 despite, an earlier suit under such

provisions being decreed was still maintainable.

51. Vikrama Das Mahant (supra) has considered the issue

whether a decree in an earlier Section 92 suit entitle the

plaintiff thereon to sue. It has held that, where public trusts

are concerned, Courts have a duty to see that their interest

 32

and interest of those for whose benefit the trust exist are

safeguarded. Therefore, Courts possess power to sustain

proper proceedings and grant relief in the interests of and for

the express benefit of the trust, imposing such conditions as

may be called for.

52. As has been noted above, the issue with regard to Section 92

of the Code of Civil Procedure, 1908 is yet to be finally

decided in the suit. Therefore, it would be premature to say

that, the suit is essentially one for the purpose of vindicating

individual or personal rights. The contentions of the

respondent No. 1 and 2 and 7 are not in the realm of an

Order 7 Rule 11 scenario with regard to Section 92 of the

Code of Civil Procedure, 1908. In any event, a subsequent

suit under Section 92 of the Code of Civil Procedure, 1908 is

maintainable if the facts justify it.

53. The appellants as plaintiffs had applied for interim reliefs

before the learned Trial Judge. The interlocutory application

of the appellants before the Trial Court has revolved around

offices held by the appellants and with regard to

appointment of Additional Board of Governors, without

praying for any relief regarding the composition of the Board

 33

of Governors by altering the existing scheme. As has been

noted hereinabove, the issue of Section 92 of the Code of

Civil Procedure, 1908, is yet to be finally decided. The

question therefore, is, whether, pending decision of the

maintainability of the suit can interim reliefs be granted to

the plaintiffs.

54. In T.K. Lathika (supra) the Supreme Court has considered

a bar under Kerala Building Lease and Rent Control Act,

1965 on a transferee land lord from filing a suit of eviction

within one year of the transfer. In such context, it had held

that, the issue of maintainability of the suit needs to be

decided first before any relief being granted.

55. The Supreme Court in Rama Narang (supra) has noticed

Tayabbhai M. Bagasarwalla and Another (supra) and

held that, where the objection of jurisdiction is taken, the

Court should decide such question first. However, that does

not mean that pending the decision on the question of

jurisdiction, the Court has no jurisdiction to pass interim

orders as may be called for in the facts and circumstances of

the case. Mere objection to jurisdiction does not instantly

 34

disable the Court from passing any interim orders. It can

pass appropriate orders.

56. In Ramesh V. Desai & Ors. (supra) the Supreme Court has

held that, the question of limitation is a mixed question of

fact and law. Code of Civil Procedure, 1908 confers no

jurisdiction to Court to decide a mixed question of fact and

law, as a preliminary issue unless the facts are clear from

the plaint itself and the mixed question of fact and law can

be determined on the principles of demurer.

57. Provisions of Order 41 Rule 33 of the Code of Civil

Procedure, 1908 have been considered in Jai Prakash

Gupta (supra) and Gaiv Dinshaw Irani and Others

(supra) where it has been held that, Appellate Court has

power to grant reliefs taking into consideration the

subsequent events having direct bearing on the reliefs

claimed or on the entire purpose of the suit. In the facts of

the present case, the basis for seeking reconstitution of the

Board of Governors and framing a scheme is not on the

subsequent events but on events which had happened prior

to the institution of the suit.

 35

58. The Supreme Court in R. N. Gosain (supra) has held that, a

party to a proceedings after electing to accept a transaction

as valid and taking advantage of such transaction cannot be

permitted to challenge the validity of such transaction. In the

facts of that case, the tenant filed an undertaking to vacate

the premises. In the facts of that case, it was held that by

furnishing the undertaking the tenant had elected to avail

the protection from eviction of the premises and enjoy such

protection. Having done so, the tenant cannot be permitted

to assail the order by which, he availed of the benefit.

59. In Bhagwat Saran (supra), the Supreme Court has

observed as follows :-

“26. …………………………………………………………It is
trite law that a party cannot be permitted to approbate
and reprobate at the same time. This principle is based
on the principle of doctrine of election. In respect of wills,
this doctrine has been held to mean that a person who
takes benefit of a portion of the will cannot challenge the
remaining portion of the will. In Rajasthan State
Industrial Development & Investment Corpn. v. Diamond
& Gem Development Corpn. Ltd. [Rajasthan State
Industrial Development & Investment Corpn. v. Diamond
& Gem Development Corpn. Ltd., (2013) 5 SCC 470 :
(2013) 3 SCC (Civ) 153 : AIR 2013 SC 1241] , this Court
made an observation that a party cannot be permitted to
“blow hot and cold”, “fast and loose” or “approbate and
 36

reprobate”. Where one party knowingly accepts the

benefits of a contract or conveyance or an order, it is
estopped to deny the validity or binding effect on him of
such contract or conveyance or order.
27. The doctrine of election is a facet of law of
estoppel. A party cannot blow hot and blow cold at the
same time. Any party which takes advantage of any
instrument must accept all that is mentioned in the said
document. It would be apposite to refer to the
treatise Equity—A Course of Lectures by F.W. Maitland,
Cambridge University, 1947, wherein the learned author
succinctly described principle of election in the following
terms:
“The doctrine of election may be thus stated : that he
who accepts a benefit under a deed or will or other
instrument must adopt the whole contents of that
instrument, must conform to all its provisions and
renounce all rights that are inconsistent with it….”
This view has been accepted to be the correct view
in Karam Kapahi v. Lal Chand Public Charitable
Trust [Karam Kapahi v. Lal Chand Public Charitable
Trust, (2010) 4 SCC 753 : (2010) 2 SCC (Civ) 262] . The
plaintiff having elected to accept the will of Hari Ram, by
filing a suit for eviction of the tenant by claiming that the
property had been bequeathed to him by Hari Ram,
cannot now turn around and say that the averments
made by Hari Ram that the property was his personal
property, is incorrect.”
60. According to the respondent nos. 1, 2 and 7 the appellants,

as plaintiffs having taken advantage of their respective

appointments as Additional Board of Governors pursuant to

 37

the modified decree of 1944, they should not be allowed to

challenge such decree on the ground that the appellants as

plaintiffs, cannot be allowed to approbate and reprobate.

61. With respect, we are unable to agree with such contentions

of the respondent nos. 1, 2 and 7. The appellants/plaintiffs

had been appointed Additional Governors pursuant to the

decree dated June 6, 1944. The appellants as plaintiffs may

not obtain any relief at the final hearing of suit if it is held

that their appointments were bad but that does not preclude

them to raise issues with regard to the compositions of the

Board of Governors or the requirement to have the same by

amending the decree. The appellants as plaintiffs having

accepted their appointments from persons who are in

wrongful control of a public trust, does not denude the Court

from considering whether, the public trust was in the control

of persons who were directed to be in control thereof by the

decree of the Court or not. In the facts of the present case,

the Court had retained the jurisdiction to look into and

rework the composition of the Board of Governors, modify

the scheme and issue necessary directions with regard

thereto if the occasion so arises. The jurisdiction of the Court

 38

to look into the composition of the Board of Governors by

virtue of individual actions of such certain plaintiffs in a suit

cannot be ousted. This appeal is held to be maintainable.

62. In the present suit, the issue as to whether, the educational

institutions concerned are minority educational institutions

or not or whether, their rights as minority educational

institutions are sought to be affected does not arise. The

Court had passed a decree directing the composition of the

Board of Directors and retained the jurisdiction to

recompose the same. This jurisdictions of the Court cannot

be ousted on the plea that the institutions concerned are a

minority educational institutions. In any event, a minority

educational institution cannot be held to be outside the

judicial scrutiny of a Court in a suit instituted under Section

92 of the Code of Civil Procedure, 1908. Plea of the

institution being a minority institution, does not affect the

rights of the parties and the jurisdiction of the Court under

Section 92 of the Code of Civil Procedure, 1908.

Consequently, the authorities cited at the bar in respect of

minority rights, need not be discussed at length.

 39

63. It is trite law as has been observed in Ibrahim Uddin &

Another (supra) that, relief not founded on pleadings cannot

be granted. All material facts has to be pleaded and a party

cannot be allowed to travel beyond the pleadings. The other

authorities cited on the point that, a party must not travel

beyond the pleadings and therefore all material facts has to

be pleaded are not discussed at length here.

64. The learned Trial Judge had considered GA No. 1517 of 2019

while passing the order dated July 12, 2019 which was

subsequently clarified by the impugned order. The learned

Trial Judge had noted the rival contentions of the parties

while passing the order dated July 12, 2019. The learned

Trial Judge had taken into consideration the contents of the

Will of late Major General Claude Martin. The learned Trial

Judge had taken into consideration letters dated March 22,

2019 on election and nomination of the four Additional

Governors. The learned Trial Judge had noted that such

letters contained the signature of the then two ex officio

Governors. The learned Trial Judge had also taken into

consideration the letters dated June 19, 2019 which spoke

about a meeting of the Ex-officio Board of Governors dated

 40

June 18, 2019. The learned Trial Judge had recorded the

fact that the Court perused two documents bearing

signature of continuing Ex-officio Governor. The learned

Trial Judge had to note that persons who can officiate as Ex-

officio Governors have been described in the decree and the

amendment order. The learned Trial Judge had recorded

that the one of such person had signed two documents,

contents of which contradict each other. The learned Trial

Judge had refrained from making further comment. In such

circumstances, the learned Trial Judge had returned a

finding that the plaintiffs were entitled to an interim order.

The learned Trial Judge had proceeded to grant interim

orders in favour of the plaintiffs/appellants. The interim

order that had been granted was as follows: –

“The Board of Governors of the schools will not

take any decision regarding management of the
school’s untill disposal of this application. The Ex
Officio Governors will not, in that time, appoint any
person as Additional Governors.”
65. The learned Trial Judge after having been satisfied that a

case for granting interim order was made out by the

plaintiffs/appellants, had proceeded to clarify through the

 41

impugned order that, such order was limited for a period of

one year.

66. In the facts and circumstances of the present case, it would

be appropriate to hold that, the pleadings of the

appellants/plaintiffs had made out a prima facie case. The

balance of convenience and inconvenience was also in favour

of the appellants/plaintiffs in granting interim reliefs.

67. The interim order initially granted on July 12, 2019 had

proceeded on the basis of a person who can officiate as Ex-

officio Governor signing two documents, contexts of which

contradict each other. The interim order granted was not in

relation to the appointment of the plaintiffs/appellants as

Additional Governors but related to the management of

administration of the affairs of the two schools. Management

and the administration of the two schools are not limited to

the time period of the office of the plaintiffs/appellants

particularly in view of the fact that, the suit was under

Section 92 of the Code of Civil Procedure, 1908.

68. The plaintiffs/appellants have raised serious issues with

regard to the composition of the Board of Governors of the

two schools. Interest of the public including the students

 42

studying in the two schools have to be taken into

consideration. Prima facie, there is an urgent need for the

Court to revisit the composition of the Board of Governors.

As on date, there are only two members of the Board of

Governors. The requisite quoram as prescribed by the

constitution of the two schools are not available in the

present Board of Governors of the two schools. Therefore,

there is a serious issue as to whether, the present Board of

Governors can function at all without requisite quoram being

present.

69. However, those issues have to be taken into consideration in

an appropriate proceedings. The scope of the appeal being

limited, we refrain ourselves from embarking on such route

despite the order dated October 8, 2020.

70. In such circumstances, it would be appropriate to direct that

the Board of Governors of the two schools will not take any

decisions regarding the management of the two schools till

the disposal of the interlocutory applications. The Ex-officio

Governors will not, till the disposal of the interlocutory

applications, appoint any person as Additional Governors.

All decisions taken by the Board of Governors after the

 43

institution of the suit or after the passing of the initial order

therein, on July 12, 2019, be not given effect to, except those

pertaining to the day to day administration and functioning

of the two schools. No decision pertaining to any new school

should be given effect to or any steps taken in pursuance

thereof till the interlocutory applications are decided.

71. The learned Judge before whom the matters are pending is

requested to dispose of all the pending interlocutory

applications as expeditiously as possible and preferably

within a period of four weeks from date.

72. During the pendency of the appeal, an application being GA

7 of 2023 has been filed seeking framing of a scheme for the

management and administration of the two schools. In view

of Meena Chaudhary (supra) since the scope of GA 7 of

2023 is greater than the scope of the main appeal such

prayer is not considered by us. It would however not prevent

the parties to the suit from seeking appropriate relief before

the Trial Court. All points with regard thereto are left open.

73. In view of the discussions above GA 4 of 2021 is disposed of

by holding that the appeal is maintainable. GA 6 of 2023 has

lost its force in view of the fact that, every learned counsel
 44

who wanted to address the Court on the virtual platform was

allowed to do so.

74. APO 83 of 2020 with all other connected applications are

disposed of without any order as to costs.

[DEBANGSU BASAK, J.]

75. I agree.

[MD. SHABBAR RASHIDI, J]