Public Nuisances or

such other wrongful acts

(Section 92- Public Charities )

C.P.C.- II
By
DR. VIVEK KUMAR
 synopsis
Public Nuisances and other wrongful acts
affecting the public (Public charities)

-Introduction
-Section 92, Public charities
-Object and nature
-Who may sue, who may be sued & notice
-Relief under such wrong
-‘Cy pres’ doctrine
- Case Laws
 Introduction
Section 92- suit relating to breach of public charity/ trust
created for public purposes of a charitable or religious nature
by the Advocate General or two or more persons having an
interest in the trust with the grant of the court for reliefs.
suit relating to public charity, for the protection of public
rights in public trusts and charities, on behalf of all persons
interested in trust.
The beneficiaries choose two or more name for institution of
suit as plaintiffs, merely representatives in behalf of all
beneficiaries.
This suit is called representatives suit, also applicable the
doctrine of res judicata.
Se ctio n 9 2, P ub lic ch ari ties

Sec.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, …
administration of any such trust, the Advocate-
General, or two or more persons having an
interest in the trust …the leave of the Court
may institute a suit, whether … Court
empowered in that behalf by the State
Government within the local limits …subject-
matter of the trust is situate to obtain a decree-
 Sec. 92……

(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 accounts and inquires;
(e) declaring what proportion of the trust property or of the interest
therein shall be allocated to any particular object of the trust;
(f) authorizing 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.
 Sec. 92……

(2) Save as provided by the Religious

Endowments Act, 1863 or by any corresponding
law in force …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 ….
(3) 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 … applied cy pres
…, namely-
.
 Sec. 92……

(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 …;
(b) where the original purposes of the trust provide a use for a
part only of the property …; 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, …being had to the spirit of the trust
and its applicability to common purposes; or
(d) where the original purposes, … by reference to an area
which then was, but has since ceased …; or
(e) where the original purposes, … 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 …
 Objective and Nature
Objective and Nature- to afford protection to
public trust of a charitable or religious nature from
being subjected to harassment by suit being field
against them and to prevent multifarious and
vexatious suit being field by irresponsible persons
against the trustees whose duty is to administer
such trust. Before the Advocate-General files a
suit or before the courts grants leave for filing a
suit under Section 92, prima facie satisfaction
regarding breach of trust or of the necessity for
obtaining directions of the court must be there.
Who may sue, who may be sued & notice
Who may sue –
A suit may be instituted by the Advocate-General and
outside the Presidency towns by the Collector or such
officer as the State Gov. may appoint in this behalf, or by
two or more persons having an interest in the trust, have
obtained the leave of the Court for filing such suit.
Who may be sued- A suit may be brought against the person
in possession of trust property who claims adversely to the
trust or trustees, who have committed breach of trust.
Notice- Notice of the court to the defendants before granting
leave to file a suit. The defendants may prove against the
allegations, are false and frivolous, or it is to harass the
trust, but if the suit is filed without notice to the defendants,
it would be non-maintainable.
 Relief under such wrong
A suit may be instituted for any one or more of the following relief
[according to Sec.92(1)] -
(a) removing any trustee,
(b) appointing a new trustee,
(c) vesting any property in a trustee,
(cc) directing a trustee/ person who has been
removed/ceased to be a trustee, to deliver possession of such
property to the person entitled to,
(d) directing accounts and inquires,
(e) declaring what proportion of the trust property or of
the interest, be allocated to specific object of the trust,
(f) authorizing the
whole/ any part of the trust property to sold/ mortgaged/ exchanged,
(g) settling a scheme, or
(h) granting such other relief as
the case may require.
 ‘Cy pres’ doctrine Sec.92(3)
The ‘Cy pres' doctrine- Influenced by the courts of Equity (England)
India- administering equity, applied to trusts.
Section 92- The Charity Commissioner instituting a suit in relation
to a public charity. The application of the ‘Cy pres' doctrine,
extended to the income of the public trust and public interest.
The court is empowered to dispose of the application and to
decide whether the trust should be administered by this ‘Cy pres'
doctrine. The court may consider what is convenient, practicable
or necessary in public interest, applicable to the property or the
income of the public trust to charitable or religious object.
Scope- ‘Cy pres' and ‘Cy pres funds' relating to charities,
charitable and religious institutions, gifts or donations. Its a legal
doctrine, empowered the courts to interpret the terms of a will,
gift, or charitable trust. This doctrine will become active if
the name of recipient of the gift does not exist, has dissolved/ no
longer conducts the activity for which the gift is made.
 Case laws
Ramdas Bhagat v. Krishna Prasad Tewari and others, AIR
1940 Pat 425
The court stated that the direction of the court is necessary for
the administration of any such public trust, in a suit under
Section 92, the court can remove the trustee. It was further held
that in respect of a charitable trust no one can appoint himself as
trustee unless the trust deed so provides under Section 92 of
Code of Civil Procedure and the court can settle a scheme to
appoint new trustees, authorize the whole or any part of the trust
property to be let, sold, mortgage or exchange.
Narendrasinghji v. Udesinghji, AIR 1947 Bom. 451
The court stated the purpose of this provision that to afford protection
to public trust of a charitable or religious nature from being subjected
to harassment by suit being field against them and to prevent
multifarious and vexatious suit being field by irresponsible persons
against the trustees whose duty is to administer such trust.
 Case laws
Ratilal Panachand Gandhi v. State of Bombay, AIR 1953 Bom. 242
The High Court stated that according to Section 92 the consent of the Charity
Commissioner is required for the institution of a suit in relation to a public
charity the power is given to the court, to dispose of the application and to
decide whether the trust should be administered by this extended ‘Cy pres'
doctrine. The court has to give the directions, may consider what is convenient,
practicable or necessary in public interest, applicable to the property or the
income of the public trust to any other charitable or religious object.
Sulegai Dodda Narayana Sa vs A. Hanumanthappa And Ors., AIR 1953 25 Kant

It was held that in a suit framed under Section 92, C. P. C., a relief praying for
a declaration that the properties in suit are trust properties does not fall within
the reliefs which can be claimed under that section. When the defendant denies
the existence of a trust a declaration that the trust does exist might be made as
ancillary to the main relief claimed in the plaint if the plaintiff is held entitled to
it. But when the case of the plaintiff fails for want of a cause of action there is
no warrant for giving him a declaratory relief under the provisions of Section
92, C. P. C. The finding as to the existence of a public trust under such
circumstances would be no more than an 'obiter dictum' and cannot constitute a
final decision in the suit.
Case laws
Venugopala Naidu v. Venkatarayulu, AIR 1990 SC 444
The Supreme court observed that such charity suit is basically
on behalf of all persons interested in trust. The beneficiaries
choose two or more persons for filing the suit that is how their
name shown as plaintiffs, but the plaintiffs are merely
representatives of all beneficiaries and the action is instituted in
behalf of all. Thus, this suit is called representatives suit and a
decision in such suit would also attract the doctrine of res
judicata.
TKVTSSME Charitable trust v. State of Tamil Nadu, AIR
2002 Mad. 42
It was stated that doctrine of ‘Cy Pres' would only apply where
charitable bequest fails or is incapable of being fulfilled in
accordance with the spirit or when directions of founder cannot
be carried out for the purpose and the spirit for the trust was
created.
Take care….Be safe.

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