K. Govindarajan, J.

1. Defendants 3, 4, 9 and 21 having aggrieved by the judgment and decree in O.S No. 170/1981, as confirmed by the learned single Judge, in Tr.Appeal No. 11/1993, filed the above Appeal.

2. Plaintiffs/respondents 1 to 5 filed a suit in O.S No. 170/1981 on the file of the learned District Munsif, Sholinghur to direct the transfer of trust properties to the plaintiffs' beneficiaries and deliver the same to them in pursuance of the title declared in O.S No. 44/1912, on the file of the Sub-Court, North Arcot District at Chittoor and for direction to defendants 1 to 7, 8, 21 and 22 to duly account for the rent and profits of the trust properties and pay them the sums available with them as belonging to trust together with interest till payment.

3. It is not in dispute that the suit properties originally belonged to Velliagaram Alwar Chetty. He executed a deed of declaration of trust dated 19.1.1898 for supply of flowers to the deities for the plaintiffs' temples and for distribution of cooked rice to desanthiries. Subsequently, the said Alwar Chetty seems to have cancelled the said trust deed, as the trustees were not prepared to act as trustees. Thereafter, an extent of 23 cents in Survey No. 1031/3 was sold by defendants 1 to 6 in favour of 9th defendant under a sale deed dated 9.4.1972 On the basis of a scheme framed, a decree was passed with respect to the said properties, in O.S No. 44/1912, on the file of the Sub-Court, Chittoor, the plaintiffs came forward with the above suit.

4. The defendants contested the suit contending inter alia that the trust deed was cancelled and as there is no trust at all, the vendors as heirs of the said Alwar Chetty have every right to sell the properties. It is also stated that the plaintiffs cannot sustain the suit on the basis of the decree under Ex.A8, dated 2.8.1930, as no pleadings were filed and it is only a certified copy of the suit register. The defendants have also referred to the acquisition proceedings under which the properties were acquired and compensation was paid to Ramasami, the great grandson of the said Alwar Chetty. According to the defendants, the properties in question are dealt with as private properties. It is also stated that the suit is not maintainable without getting permission to file a suit under Sec. 92 of the Code of Civil Procedure.

5. The trial Court decreed the suit as prayed for. The appellants/defendants 3, 4, 9, 21 & 22, preferred Appeal in A.S No. 106/1986 on the file of the District Court, Vellore. Pursuant to the order of this Court, the said appeal was directed to be transferred to this Court and numbered as Tr.Appeal No. 11 of 1993. The learned Judge in the judgment dated 7.9.1999, confirmed the judgment and decree of the trial Court and dismissed the appeal. Hence the above Appeal.

6. Learned counsel for the appellants submitted that the trust deed Ex.A6 (translation copy was marked as Ex.A7), dated 19.1.1898 was cancelled under Ex.B4 dated 8.1.1902 and thereafter the heirs of the said Alwar Chetty treated the said properties as their personal properties. Under Ex.B7, the said properties were also leased out. Moreover, according to the learned counsel, the trust is formed only for specific endowment and so it cannot be said that the lands belong to the trust. Referring to the Land Acquisition proceedings under Ex.B8 to B10, learned counsel also submitted that since the properties belong to the heirs of the said Alwar Chetty personally, the amounts were paid to them by the Government. Referring to the decree Ex.A8 which the plaintiffs sought to enforce, learned counsel submitted that no details of the properties and the trust deed are mentioned in the decree and the plaintiffs have not made pleadings so as to enable them to claim res judicata and so the suit based on the said certified copy of the suit register cannot be sustained. Referring to Ex.A22, partition deed, learned counsel submitted that merely because the properties in question are not mentioned in the partition deed, it cannot be said that they are not the properties of the defendants. Referring to Sec. 92 of the Code, he submitted that since the plaintiffs have not obtained permission as contemplated under the said Section, the suit itself is not maintainable. He also submitted that the properties were created for two benefits and only one of the beneficiaries alone has filed the suit, which cannot be sustained. With respect to the jurisdiction, learned counsel pointed out that the District Munsif Court is not having any jurisdiction and only the Principal District Judge is having jurisdiction to deal with the trust properties. Learned counsel relied on a number of decision in support of his submission.

7. Learned counsel for the respondents/plaintiffs submitted that even on the basis of the documents to which the predecessor-in-title of the appellants/defendants were parties and in the said documents, they have admitted that the trust is in existence and the properties in question are the trust properties. When the appellants have admitted the existence of the trust and they have been performing the obligation created under the trust, it cannot be said at this stage that the trust is not in existence and so the properties have to be treated as separate properties of the said Ramasami, the predecessor-in-title of the appellants so as to enable him to sell the properties. Regarding the submission on the basis of Sec. 92 of the Code, learned counsel submitted that Sec. 92 of the Code has no application to the facts of the present case as the suit is not against the trustees, and even with respect to want of jurisdiction, learned counsel submitted that the said objection was not raised before the trial Court or before the learned single Judge and so the same cannot be allowed to be raised.

8. On the basis of the above said facts and arguments, the following points arise for determination:

(1) Whether the trust created on 19.1.1898 is still in existence?

(2) Whether Ramasami, the great grandson of the said Alwar Chetty is not having power to sell the properties in favour of the 9th defendant?

(3) Whether the suit is maintainable for want of permission under Sec. 92 of the Code of Civil Procedure?

(4) Whether the learned District Munsif was having jurisdiction to deal with suit?

9. Before dealing with the points 1 and 2, we are inclined to deal with the other points. Sec. 92 of the Code, reads as follows:-

“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 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) authorizing the whole or any part of the trust property to be let, sold, mortgaged or executed;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.”

According to the learned counsel for the appellants, since the suit is to recover possession of the trust properties and for accounts, without obtaining any leave of the Court, the suit cannot be sustained.

10. Sec. 92 of the Code is provided to give protection to the pubic trust of a charitable and religious nature from being subjected to harassment by suits filed against them. The following conditions have to be satisfied, to apply Sec. 92 of the Code:

(a) There should be a trust created for public purpose of charitable or religious nature;

(b) In case of any alleged breach of such trust, direction of the Court is necessary for administration of such a trust;

(c) The suit must be representative one on behalf of the public and is not by individuals for their own interest;

(d) The relief claimed in the suit must be one or other reliefs mentioned in the provision.

The Apex Court in the decision in Charan Singh v. Darshan Singh, AIR 1975 S.C 371, decided the scope of Sec. 92 of the Code and further held that maintainability of the suit depends upon the allegations in the plaint. Similar view also has been taken by the Apex Court in Parmatmanand Saraswati v. R. Tripathi, AIR 1974 S.C 2141, and found 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 Section 92 of the Code.

11. Learned counsel for the respondents submitted that Sec. 92 of the Code will apply only with reference to the suit against the trustees, and Ramasami, who is the vendor of the appellants, is not a trustee, and Sec. 92 of the Code has no application to the present case. The said submission of the learned counsel cannot be countenanced. It is not her case that if the vendor of the appellants is construed as a trustee, then Sec. 92 of the Code has no application to this case. Even in the plaint, the status of the said Ramasami as a trustee has been accepted. In para 5 of the plaint, it is stated as follows:

“After the death of the author of the trust, the trust was administered by Thiru B.D.V Ramaswamy Naidu, husband of first defendant and father of defendants 2 to 4 and laterly by defendants 1 to 7 either directly or through the agency of a local educate. It is also specifically stated that defendants 5 to 7 are the other members of the trustees of family.”

Even in para 11 of the plaint, it is specifically stated that “Indeed Alwar Chetty declared that he cannot obtain possession of the properties otherwise than as a trustee and so the possession of the defendants 1 to 7 succeeding Thiru B.D.V Ramaswamy was undoubtedly a trustee cannot but be that of the trustees.” Moreover, it is also stated in para 7 of the plaint that the 8th defendant on behalf of defendants 1 to 7 who assumed trusteeship after B.D.V Ramaswami Naidu paid the ground rent. In the deed marked as Ex.A7, it is stated that he is one of the male heir, entitled to act as a trustee. In Ex.B2, dated 9.4.1972, as pointed out by the learned counsel for the respondents, it is stated that the consideration amount received by the vendor is to discharge the obligation of the charity as envisaged by late Alwar Chetty. When the plaintiff himself claimed that the said Ramasami who is the vendor, as a trustee of the Alwar Chetty charity, the submission of the learned counsel that the suit is not against the trustees, cannot be sustained. In view of the above, it is clear that the suit is filed as against the trustees and Sec. 92 of the Code clearly applies to the facts of the case. In view of the above, the suit is not maintainable as, admittedly, no leave was obtained to institute the present suit in the concerned Court. On that basis, the suit has to be dismissed.

12. The learned Judge rejected the contention raised on behalf of the appellants on the basis of Sec. 92 of the Code, only on the ground that the suit filed by the beneficiaries is to enforce the right of the beneficiaries and it is not a suit to enforce the right of a public trust. It is also held that the suit is filed by the beneficiaries to recover the properties from the alienees and so the said suit is not coming within the scope of Sec. 92 of the Code. Learned counsel for the respondents, to sustain the findings of the learned Judge, relied on the decision of the Apex Court in Bishwanath v. Radha Ballabhji, AIR 1967 S.C.1044, in which it is held that in a suit filed by a temple for declaration of title and possession of property from a person in illegal possession, Sec. 92 of the Code is no bar.

13. The present suit is not a suit to set aside the sale in favour of the 9th defendant but it is only to enforce the scheme decree obtained in O.S No. 44/1912 on the file of the Sub-Court, North Arcot at Chittoor. Even on a reading of the prayer, it clearly establishes that the prayer is with respect to all the trust properties. As stated already, the prayer sought for in the suit squarely comes under Sec. 92(1)(c) and (d) of the Code. In the plaint, the plaintiffs have challenged the right of the trustees alienating the properties, and they are also ignoring the same. So it cannot be said that the suit is against the 9th defendant alone, as the suit properties are not only the properties sold to the 9th defendant, but also other properties which are included in the plaint schedule.

14. The suit was filed before the District Munsif Court, Sholinghur. Questioning the jurisdiction, appeal was preferred before the District Court, Vellore, against the judgment and decree in O.S No. 170/1981. In the order passed in C.R.P No. 2027/1991, dated 9.12.1991 the learned Judge directed to transfer the appeal to this Court and thereby it is renumbered as Tr.Appeal No. 11/1993. Questioning the said order of transfer on the ground that in view of the said order, the appellants cannot put forth their defence regarding the jurisdiction, the 1st appellant preferred appeal to the Apex Court in Civil Appeal No. 9256 of 1992. In the said Appeal, the Apex Court has passed the following order:

“Delay condoned. Without prejudice to whatever right the petitioner has in law to question the jurisdiction of the trial Court in the appropriate proceedings, this special leave petition is dismissed.”

15. In view of the above order, giving liberty to the appellants to raise an objection regarding the jurisdiction of the District Munsif Court to deal with the suit, the submission of the leaned counsel for the respondents that such objection was not raised initially cannot be sustained. There cannot be any doubt that the District Munsif Court has no jurisdiction, as the State Government in the Notification in G.O.Ms No. 727, dated 8.3.1960 conferred power only on the Courts of Sub-Judges in the State of Tamil Nadu with the jurisdiction to deal with the suits relating to trusts created for public purpose of charitable or religious nature. This notification was issued exercising powers under Sec. 92 of the Code. The correctness and existence of the notification has not been disputed before us by the learned counsel for the respondents. Hence it is clear that the District Munsif Court, Sholinghur has no jurisdiction to deal with the suit in question. Hence, even on this ground, the suit has to be rejected.

16. In the light of the above discussion and findings, we are of the opinion that we need not go into the merits of the case and so on the above said findings, we are inclined to allow the above Appeal by setting the judgments and decrees of the learned Judge, made in Tr.Appeal No. 11/1993, dated 7.9.1999 and in O.S No. 170/1981, dated 19.2.1986 Accordingly, the above appeal is allowed. No costs.

RSN