Section 92 CPC and Litigation over Public Trusts

A public trust has no individual beneficiary who owns it and can sue to protect it. Its beneficiaries are the public, or a section of it. If every member of the public could sue the trustees whenever he disagreed with them, trusts would be paralysed by litigation; if no one could sue, trustees could mismanage with impunity. Section 92 of the Code of Civil Procedure, 1908 strikes the balance: it allows a representative suit for the protection of a public trust, but only by the Advocate General or by two or more persons interested who first obtain the leave of the court. This note explains the section and the leading judgments.

1. The Text

Section 92(1), Code of Civil Procedure, 1908 (public charities)

In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or 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 (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 inquiries; (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.

Sub-section (2) makes the procedure mandatory: save as provided by the Religious Endowments Act, 1863 or corresponding law, no suit claiming any of these reliefs in respect of such a trust may be brought except in conformity with sub-section (1). Sub-section (3), added in 1976, empowers the court to apply trust property cy-près in defined circumstances (Topic 43).

2. The Conditions

A trust for public purposes of a charitable or religious nature: Express or constructive; private trusts are excluded (Topic 40).
An alleged breach of trust, or the need for the court's directions for administration: The suit must be founded on one of these two grounds.
Plaintiffs: The Advocate General, or two or more persons having an interest in the trust.
Leave of the court: Required for suits by persons interested (since 1976, replacing the earlier requirement of the Advocate General's consent).
Relief: One or more of the reliefs in clauses (a) to (h).
Forum: The principal Civil Court of original jurisdiction (District Court), or another court empowered by the State, where any part of the subject matter is situated.

3. Nature of the Suit

📖 Swami Parmatmanand Saraswati v Ramji Tripathi (Supreme Court, 1974)

Held: A suit under Section 92 is a representative suit brought to vindicate public rights. To decide whether a suit falls within the section, the court looks at the allegations in the plaint: the plaintiffs must allege a breach of trust or the need for directions, and the reliefs claimed must be among those in the section. A suit to vindicate the plaintiffs' personal or individual rights is not a Section 92 suit, even if it concerns a public trust.

Because the suit is representative, a decree binds all persons interested in the trust, and a second suit on the same matter is barred (Explanation VI to Section 11 CPC).

📖 Vidyodaya Trust v Mohan Prasad R (Supreme Court, 2008)

Held: The court applied the same test: Section 92 is meant for the protection of public trusts and the vindication of public rights, and a suit actuated by private grievances or personal interest does not qualify. The court must be satisfied that the plaintiffs are acting in the interest of the trust.

4. Leave of the Court

Purpose: to filter out frivolous or vexatious suits that would harass trustees and waste trust funds.
Persons interested: an interest need not be pecuniary; a regular worshipper at a public temple, a contributor, or a member of the community served may have a sufficient interest. A mere busybody does not.
Notice to defendants: in R.M. Narayana Chettiar v N. Lakshmanan Chettiar (Supreme Court, 1991), the Court held that although the section does not expressly require notice before leave is granted, it is desirable that the court give the proposed defendants an opportunity to be heard where practicable.
Material considered: at the leave stage the court generally examines the plaint and the documents, to see whether a prima facie case for a representative suit is made out; it does not decide the merits.

5. What Section 92 Does Not Cover

Suits against third parties: a suit to recover trust property from a stranger or an alienee is not a Section 92 suit. In Bishwanath v Sri Thakur Radha Ballabhji (Supreme Court, 1967), a worshipper was allowed to sue on behalf of the deity to recover property alienated by the shebait, without Section 92 leave, because the shebait was acting adversely to the deity (Topic 44).
Declaratory suits about the nature of the trust: a suit simply to declare whether a trust is public or private, without seeking Section 92 reliefs, falls outside.
Private trusts: governed by the Trusts Act and ordinary suits (Topic 39).
States with their own law: in some States the public trusts statute provides its own machinery and excludes Sections 92 and 93 CPC for trusts governed by it, for example the Maharashtra Public Trusts Act, 1950, under which proceedings are taken with the Charity Commissioner (Topic 42).

6. Section 93 CPC

Section 93 allows the powers of the Advocate General under Section 92 to be exercised, outside the presidency towns, by the Collector or another officer appointed by the State Government, with its previous sanction. It reflects the practical need for a public officer to act where the Advocate General is distant.

⚠ Key point

Section 92 CPC permits a representative suit, contentious or not, concerning a trust for public purposes of a charitable or religious nature, on an alleged breach of trust or where the court's directions are needed, by the Advocate General or two or more persons interested with leave of the court, in the District Court, for the reliefs listed: removal and appointment of trustees, vesting, delivery of possession, accounts, allocation, authority to deal with property, a scheme, or other relief. No suit for those reliefs may be brought otherwise (Section 92(2)), and the court may apply property cy-près (Section 92(3)). The suit must vindicate public, not private, rights (Parmatmanand Saraswati, 1974; Vidyodaya Trust, 2008); notice before leave is desirable (Narayana Chettiar, 1991); suits against third parties fall outside (Bishwanath, 1967).

7. Related Topics and Provisions

Private and public trusts (Topic 40)
Statutory regulation of public trusts (Topic 42)
The cy-près doctrine (Topic 43): Section 92(3)
Hindu religious endowments (Topic 44)