The Law in Question :

"Section 92 CPC: Public charities: (1) 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 in 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--- ....
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged
or exchanged; ...."

Order dated A.Nos.3671 of 2021 and 3 C.S.D.Nos.80696 and and O.P.D.Nos.64544 and IN
THE HIGH COURT OF JUDICATURE AT MADRAS under THE HONOURABLE MR.JUSTICE
V.PARTHIBAN.
Dated: 27.10.2021
Plaint is filed under Order IV Rule 1 read with O.S. Rules a 92(i)(f) of the Code of Civil
Procedure (CPC), and Civil Suit in
C.S.D.No.80696 of 2021 filed praying to grant permission for the Kanchi Charity Trust vs
Chennai-17 on 27 October, 2021 to sell the Schedule-B property belonging to the
Kanchi Charity Tr remit the sale proceeds in the Kanchi Charity Trust Account.

This court expressed reservations about applying Section 92 of the Civil Procedure Code
(CPC) to seek permission to sell trust properties, highlighting that Section 92 of the CPC
addresses breaches of trust and administration issues within the trust. The court noted that
the sale of trust properties by the trust itself doesn't fall under Section 92 CPC, nor does it
suggest any breach of trust. Instead, the court emphasized the applicability of Section 7 of
the Charitable and Religious Trusts Act, 1920, which grants powers to seek court directions
for trust administration.
In this legal context, the court expresses doubts regarding the proper use of Section 92 of
the Civil Procedure Code (CPC) for selling trust properties. Section 92 CPC is meant for cases
involving breach of trust or mismanagement, while the current applications seek direction
for property sale, which isn't aligned with Section 92's essence.
The court observes a trend within its registry where Section 92 CPC is being demanded for
selling trust properties, even returning applications referring to other legal sections. It notes
that Section 92 CPC doesn't apply for selling trust properties; instead, it recommends
utilizing Section 7 of the Charitable and Religious Trusts Act, 1920, along with Section 34 of
the Indian Trust Act, for seeking directions in such matters.
Section 7 of the Act allows trustees of charitable trusts to approach the court for opinions or
directions on trust property management. The court stressed the relevance of Section 34 of
the Indian Trust Act, stating that trustees can seek court opinions without initiating a lawsuit
regarding the management of trust property.

The court observed that the historical practice of consistently applying Section 92 CPC for
seeking permission to sell trust properties needs reassessment. Instead, it directed the
parties to follow Section 7 of the Charitable and Religious Trusts Act, 1920, along with
Section 34 of the Indian Trusts Act for seeking necessary permissions related to the sale of
trust properties.

Furthermore, the court noted that the intent of the trust was to sell the mentioned
properties to fund charitable activities. Consequently, the court advises the parties to follow
Section 7 of the Charitable and Religious Trusts Act, 1920 along with Section 34 of the Indian
Trusts Act for consideration for their case. It directs the registry to treat the applications
accordingly, emphasizing the intention to sell the properties for charitable purposes. The
court aligns with this approach based on the presented affidavits.

Supreme Court of India

Ghat Talab Kaulan Wala vs Baba Gopal Dass Chela Surti Dass ... on 31 January, 2020
Author: Hemant Gupta
Bench: L. Nageswara Rao, Hemant Gupta
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 724 OF 2020

(ARISING OUT OF SLP (CIVIL) NO. 35520 OF 2016)

GHAT TALAB KAULAN WALA .....APPELLANT(S)

VERSUS

BABA GOPAL DASS CHELA SURTI DASS

(DEAD) BY LR RAM NIWAS .....RESPONDENT(S)

This legal case involves a dispute over a temple property managed by a trust. The plaintiff
appealed against a decision by the Punjab and Haryana High Court, which set aside previous
decrees in their favor. The courts held that the plaintiff failed to prove the charitable nature
of the trust and hadn't followed legal requirements. The defendant, a sevadar (caretaker),
was accused of not managing the temple's interests properly.

In the trial, the court found the defendant was a sevadar and didn't claim ownership of the
property. It also ruled in favor of the plaintiff for an account of temple income but denied an
injunction against the defendant.

During the appeals process, questions arose about the plaintiff's standing, the defendant's
role as a sevadar, and the representation of the deceased defendant by Ram Niwas. The
High Court found Ram Niwas was merely a member of the public offering services and
wasn't appointed as the deceased's successor.

Ultimately, the High Court's decision on the case's main legal question was deemed
incorrect. The suit by the trust against the sevadar didn't fall under Section 92 of the Civil
Procedure Code, and the trust's rights were upheld. Concerns about fund misappropriation
were dismissed as baseless. The plaintiff's appeal was allowed, reversing the High Court's
decision, and the suit was decreed in favor of the plaintiff.

From Madras High Court Kanchi Charity Trust vs Chennai-17 on 27 October, 2021 in respect to the
above Judgement-

10. Further, as per the decision of the Supreme Court reported in 2020 (13) SCC 50
(Ghat Talab
Kaulan Wala Vs. Gopal Dass), Section 92 of the Page No.14/23
http://www.judis.nic.in Order dated
27.10.2021 in A.Nos.3671 of 2021 and 3676 of 2021 in C.S.D.Nos.80696 and 80695
of 2021 and
O.P.D.Nos.64544 and 64545 of 2021 CPC has no applicability in respect of a suit
instituted by a
Trust. In this regard, it is useful to extract the relevant paragraph of the above order
passed by the
Honourable Supreme Court, which reads as follows:
"10. While deciding first substantial question of law, the suit was found to be not
maintainable. The learned counsel for the appellant vehemently argued that the High
Court erred in law in finding that the suit is not maintainable in view of Section 92
of
the Code as such provision is meant for invocation of jurisdiction against the Trust.
Section 92 of the Code has no applicability in respect of a suit instituted by a trust.
It
is pointed out that the appellant has filed suit through the Manager and Trustee as
a
private trust. However, during the pendency of the proceedings, the Trust has been
registered as a Society on 29-6-2016 when Memorandum of Association of Ghat
Talab Kaulan Wala Prabhu Lal Wala, Village Mundi Kharar, Tahsil Kharar, District
S.A.S.Nagar was registered."
11. Since the plaintiff-Trust has its avowed objects to be achieved, this Court is of
the view that the
plaintiff is not entitled to file the suits based on the provisions of Section 92(1)(f) of
CPC. Page
No.15/23 http://www.judis.nic.in Order dated 27.10.2021 in A.Nos.3671 of 2021
and 3676 of 2021
in C.S.D.Nos.80696 and 80695 of 2021 and O.P.D.Nos.64544 and 64545 of 2021
12. This Court has its own reservations about the filing of the applications seeking
leave of this Court
under Section 92 of CPC, for sale of the Trust property(ies) for the intended purpose.
The scope and
ambit of Section 92 CPC are different, as could be seen from the provisions of Section
92 CPC
themselves, as extracted supra.
13. The provisions of Section 92 CPC are invoked only when there is breach of trust
and for
administration of the Trust, when there is any complaints of mal-administration and
mis-management of the Trust. The directions are sought in the present suits, only in
such event
which is the focal and essence of Section 92 CPC.
14. As far as the sale of property(ies) by the Trust itself, is concerned, the Trust can
neither be
construed as interested person in terms of Section 92 CPC, nor there is any case of
breach of trust,
nor any requirement of this Court to administer the Trust on the allegation of breach
of trust.
Therefore, this Court is of the view that invocation of Section 92 CPC is not proper.

My views:

The view of the Hon'ble Mr.Justice V.Parthiban to the effect that an application under Section 92(1)(f)
at the instance of the Trusts or the Trustees is maintainable can be sustained 100%. And without a
doubt, Section 7 of the Charitable and Religious Trusts Act, 1920 can only be invoked.

When in the way of using the English language, we use OR to mention this or that
under a given scope or umbrella of possibilities. We don’t use the entity after OR as
a complete separate statement independent of the scope or possibility under which
it exists.

When I say, I will give all my property in case I die to A or to B

I don’t intend to say #1 (a) I will give all my property in case I die to A
(b) I will give all my property to B
My intention is rather #2 (a) I will give all my property in case I die to A
(b) I will give all my property in case I die to B

92. Public charities.-- (1) 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 in any other Court empowered
in that behalf by the State Government within the local limits whose jurisdiction the whole or any part
of the subject-matter of the trust is situate to obtain a decree.

Similarly,
The above mentioned section 92(1) should not be read as :

#1 (a) In case of any alleged breach of any express

(b) In case of any constructive trust

But rather in the correct way it was intended to:

#2 (a) In case of any alleged breach of any express

(b) In case of any alleged breach of any constructive trust

[A Constructive Trust is a type of Trust that holds property for a person or entity with
the purpose of remedying a situation when that person or entity may have been
wrong.]
In consideration of various provisions, is of the view that Section 92 CPC cannot be
invoked for the above said purpose. On the other hand, this Court is of the considered
view that Section 7 of the Charitable and Religious Trusts Act, 1920, provide for
issuing directions towards administration of the Trust property(ies). The powers
vested in the Court under Section 7 of the said Act, 1920, are wide, and exercise of
jurisdiction is relatable to giving opinion and advise and also issue directions.
Section 7 of the said Act, 1920 is extracted hereunder:
" 7. Powers of trustee to apply for directions.— (1) Save as hereinafter provided in
this Act, any trustee of an express or constructive trust created or existing for public
purpose of a charitable or religious nature may apply by petition to the Court, within
the local limits of whose jurisdiction any substantial part of the subject-matter of the
trust is situate, for the opinion, advice or direction of the Court on any question
affecting the management or administration of the trust property, and the Court shall
give its opinion, advice or direction, as the case may be, thereon: Provided that the
Court shall not be bound to give such opinion, advice or direction on any question
which it considers to be a question not proper for summary disposal.
(2) The Court on a petition under sub-section (1), may either give its opinion, advice
or direction thereon forthwith, or fix a date for the hearing of the petition, and may
direct a copy thereof, together with notice of the date so fixed, to be served on such
of the person interested in the trust, or to be published for information in such
manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or on any subsequent date to which the
hearing may be adjourned, the Court, before giving any opinion, advice or direction,
shall afford a reasonable opportunity of being heard to all persons appearing in
connection with the petition.
(4) A trustee stating in good faith the facts of any matter relating to the trust in a
petition under sub-section (1), and acting upon the opinion, advice or direction of
the Court given thereon, shall be deemed, as far as his own responsibility is
concerned, to have discharged his duty as such trustee in the matter in respect of
which the petition was made."