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Case Number

Appeal No. 135 of 1982

Advocates

Somnath Chatterjee with P.K. Chatterjee
K.J. John

Judges

Bankim Chandra Ray
N.G Chaudhuri, JJ.

Acts

provisions of Sections 4, 5, 104 and read with Order 49, Rule 3 of C.P.C
Government of India Act 1935 or of the Indian Independence Act 1947
provisions of the St. Thomas School Act, 1923 (Bengal Act XII of 1923).
provisions of Section 104 read with O. 43, R. 1 of the Civil P.C7.
provisions of Section 2 of the St. Thomas School Act 1923
provisions of Section 11 of the St. Thomas School Act
provisions of Section 104 read with Order 43, Rule 1
provisions of St. Thomas School Act 1923
Section 104 read with Order 43, Rule 1
S. 104 read with Order 43, Rule 1
Section 104 of the Civil P.C10.
GOVERNMENT OF INDIA ACT
School Act 1923,

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Smart Summary

Concise Analytical Summary of the Judgment

Factual and Procedural Background

The suit (Suit No. 26 of 1981) was instituted by two plaintiffs on 19 January 1982 in the Original Side of the High Court. The plaintiffs alleged that St. Thomas School was a public charitable trust, that the defendants were trustees, and that the defendants had committed breach of trust. They claimed that the Board of Governors had been reconstituted earlier under Section 2 of the St. Thomas School Act, 1923, and that the Board's term had expired. The plaintiffs identified themselves as worshipping and subscribing members of the vestry of St. Paul’s Cathedral, Calcutta; one plaintiff was also said to be a teacher in an Anglo-Indian school. The reliefs sought included leave under Section 92 of the Civil Procedure Code (C.P.C.) to institute the suit, removal of trustees, appointment of new trustees, delivery of possession of trust property, and settlement of an administration scheme.

Ex parte leave under Section 92 C.P.C. was granted on 19 January 1982 (the hearing of the plaintiff occurred on 9 January 1982). The defendants filed an application to revoke that leave and to reject the plaint. On 7 April 1982 C.K. Banerjee, J. dismissed the defendants' application, holding that (inter alia) the pleadings were sufficient for Section 92 leave and that whether the plaintiffs actually had an interest in the alleged trust was a matter for trial, not for the preliminary application. The defendants appealed under Clause 15 of the Letters Patent.

Legal Issues Presented

Whether the appeal under Clause 15 of the Letters Patent is maintainable after the commencement of the Constitution (i.e., whether Letters Patent jurisdiction survives and is compatible with constitutional provisions).
Whether the appeal is maintainable in view of Section 104 read with Order 43, Rule 1 of the Civil P.C. (i.e., whether Clause 15 appeals are barred or saved by the Code).
Whether St. Thomas School and its properties constitute a public charitable trust (so as to render a suit maintainable under Section 92 C.P.C.), or whether the school is governed exclusively by the St. Thomas School Act, 1923.
Whether the plaintiffs have the requisite interest in the alleged trust to obtain leave under Section 92 C.P.C., and whether an ex parte leave granted without notice ought to be revoked on the defendants' application.
Whether any part of the trust property lies outside the Original Jurisdiction of the Court (specifically at Diamond Harbour Board) and, if so, whether leave required by Clause 12 of the Letters Patent was necessary.

Arguments of the Parties

Appellants' Arguments (represented by Mr. Somnath Chatterjee and Mr. P.K. Chatterjee)

The leave granted under Section 92 C.P.C. should be revoked because St. Thomas School is a statutory body constituted by the St. Thomas School Act, 1923, and not a public charitable trust.
The Board of Governors was last reconstituted on 7 November 1981 and duly gazetted; under Section 4 of the Act the Board's life is three years from publication, so the Board's term was subsisting.
The two plaintiffs in their individual capacities cannot maintain a Section 92 suit because there is nothing to show they have any interest in the administration of the school/trust; even if a constructive trust were assumed, the plaintiffs must prove an interest.
Section 11 of the Act (purposes of the school to provide education with religious instruction for Europeans and Anglo-Indians) indicates that the plaintiffs (not being European or Anglo-Indian) have no interest in the trust.
The major part of the property is situated at Diamond Harbour Board, allegedly outside the limits of the Original Jurisdiction of the Court; no leave under Clause 12 of the Letters Patent had been obtained, so the suit should be dismissed.

Respondents' Arguments (represented by Mr. John)

After the coming into force of the Constitution, Letters Patent cannot have application, and therefore the appeal under Clause 15 is not maintainable.
The appeal is also not maintainable in view of Section 104 read with Order 43, Rule 1 C.P.C.
Section 11 of the St. Thomas School Act indicates that property vested in the Governors should be deemed held in trust (a constructive charitable trust); the petitioners, being worshipping and subscribing members of the vestry, are interested in that trust and leave under Section 92 was properly granted.
The application for revocation of ex parte leave was rightly rejected by the learned Judge because on prima facie view the plaintiffs appeared to have sufficient interest to seek Section 92 relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Chunilal Basu v. The Hon'ble the Chief Justice, High Court at Calcutta, AIR 1972 Cal 470	Letters Patent of 1865 are not ultra vires the Government of India Act 1935 or the Indian Independence Act 1947; Letters Patent remain in force under Article 372 read with Article 225 of the Constitution.	Relied upon to hold that Clause 15 Letters Patent remains part of the law and that the appeal under Clause 15 is maintainable.
Sukla Choudhury v. Miss Manjolyn Tweedie, AIR 1977 Cal 239	Decision affirming the continued application of Letters Patent principles post-Constitution (followed the Chunilal Basu reasoning).	Followed as subsequent supporting authority for the maintainability of Letters Patent appeals.
In re: Putta Ranganayakulu, AIR 1956 Andhra Pradesh 161 (Full Bench)	Article 372 saves laws in force in territory of India notwithstanding repeal of the Government of India Act; continuity of pre-Constitution powers and rules.	Used in combined reading with Article 225 to show High Court powers under earlier Acts/rules continue subject to later laws; supports maintainability of Letters Patent jurisdiction.
(1899) ILR 26 Cal 361	Section 104 C.P.C. provides for appeals as mentioned therein and does not bar appeals provided by Clause 15 of the Letters Patent.	Invoked to show that appeals under Clause 15 to a Bench are not barred by Section 104 of the Code.
Mathura Sundari Dassi v. Haran Chandra Saha, (1916) 23 Cal LJ 443; (AIR 1916 Cal 361)	Section 104 C.P.C. does not take away a right of appeal given by Clause 15 of the Letters Patent; Section 104 may create a right of appeal where Clause 15 is not applicable.	Cited to support the proposition that Letters Patent appeals and statutory CPC provisions coexist and that Clause 15 appeals survive.
Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786	Combined reading of Sections 4, 5, 104 and Order 49, Rule 3 C.P.C. shows Section 104 read with Order 43, Rule 1 applies to proceedings before a trial Judge of the High Court; no inconsistency between Letters Patent jurisdiction and Section 104 read with Order 43, Rule 1.	Relied on to conclude there is no inconsistency between Clause 15 Letters Patent appeals and the C.P.C. provisions; supports maintainability of the present appeal.
Parasram Harnandri v. Chitandas, AIR 1952 Cal 82	Authority that an application to revoke an ex parte leave must be decided (i.e., a defendant's application seeking revocation of leave given ex parte should be considered).	Cited to support the court's view that the defendants' application for revocation of ex parte leave required adjudication and could not be left to the trial stage.

Court's Reasoning and Analysis

The Court's reasoning proceeds in a sequence addressing jurisdictional and substantive questions that arose on the defendants' appeal.

1. Maintainability of the Appeal under Clause 15 Letters Patent

The Court rejected the contention that Letters Patent jurisdiction ceased to have application after the Constitution came into force. Relying on Chunilal Basu and the authorities cited (including In re: Putta Ranganayakulu), the Court read Article 372 together with Article 225 of the Constitution and concluded that powers conferred earlier on the High Court and rules made thereunder continued, subject to later laws. Therefore, the appeal under Clause 15 Letters Patent is maintainable.

2. Relationship between Clause 15 and Section 104/Order 43, Rule 1 C.P.C.

The Court addressed the submission that Clause 15 is inconsistent with Section 104 read with Order 43, Rule 1 C.P.C. It held that Section 104 does not bar the special right of appeal given by Clause 15 — appeals to a Bench from a single Judge are provided by Clause 15 and are saved by Section 104. The Court cited earlier Calcutta decisions and the Supreme Court decision in Shah Babulal Khimji to conclude there is no inconsistency between Letters Patent jurisdiction and the provisions of the C.P.C., and that Section 104 (read with the relevant Orders) applies to proceedings but does not oust Clause 15 appeals.

3. Whether the School and Its Property Constitute a Public Charitable Trust

The Court then turned to the substantive contention that St. Thomas School was a public charitable trust. It examined Section 11 of the St. Thomas School Act, 1923, and found that Section 11 does not expressly or impliedly create a charitable trust of a public nature. Instead, the Court concluded that the school and its properties are to be administered in accordance with the statutory provisions of the St. Thomas School Act, 1923; where there is breach of the Act, the remedy is under that Act.

4. Consequences for Section 92 Leave and Plaintiffs' Interest

Because the school was held to be governed by the Act rather than constituting a public charitable trust, the Court found that a suit under Section 92 C.P.C. was not competent. The Court emphasized that the ex parte leave had been granted without hearing the defendants; once the defendants obtained notice, they filed an application to revoke that leave, which had to be decided at that stage (citing Parasram Harnandri). The Court further held that the plaintiffs had not proved any interest in such a trust — a basic requirement for seeking leave under Section 92 — and that the application for leave had been made in individual (not representative) capacities. For these reasons, the ex parte leave was liable to be revoked.

5. Other Contentions

The Court noted the appellants' submission about property lying at Diamond Harbour Board and the need for Clause 12 leave, but its principal reasoning and disposal rested on the legal status of the school and the insufficiency of plaintiffs' interest for Section 92 relief. The judgment does not expand further on the Clause 12 contention beyond recording it as an argument.

Holding and Implications

Holding: The appeal is allowed. The ex parte leave granted under Section 92 C.P.C. on 19 January 1982 is rejected and revoked, and the suit is dismissed. There will be no order as to costs.

Implications:

The direct effect is that the plaintiffs' ex parte Section 92 leave is withdrawn and the suit (Suit No. 26 of 1981) is dismissed.
The Court held that St. Thomas School and its properties are governed by the St. Thomas School Act, 1923, and do not constitute a public charitable trust for purposes of Section 92 C.P.C.; remedies for breaches of the Act must be sought under the Act.
The judgment does not claim to establish any broader new legal precedent beyond the application of existing authorities; the decision applies established principles regarding the survival and application of Letters Patent jurisdiction and the requirements for Section 92 leave to the facts of this case.

Appeal allowed; ex parte leave revoked; suit dismissed; no order as to costs.

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Board Of Governors St. Thomas School And Others v. A.K George And Another

JUDGMENT

1. This appeal is under Clause 15 of Letters Patent and it is at the instance of Defendants/Respondents against an order dismissing the application filed by the defendants for revocation of leave granted under Section 92 of the Civil P.C as well as for rejecting the plaint and alternatively for dismissal of the Suit No. 26 of 1981.

2. The above suit was filed by the plaintiffs on 19th Jan. 1982 in the Original Side of this Court stating inter alia that St. Thomas School was a public charitable trust and the defendants were Trustees of the said trust. It was alleged that the defendants were guilty of breach of trust. The Board of Governors of the school was reconstituted long before in accordance with the provisions of Section 2 of the St. Thomas School Act 1923 and the term of the Board already expired. It has been stated further that both the plaintiffs are worshipping and subscribing members of the vestry St. Paul's Cathedral, Calcutta and as such under the provisions of the said Act they have right to nominate Governors of the Board of Governors of the said school. Moreover, the petitioner No. 2 is also a Teacher in Calcutta Girls High School which is an Anglo Indian School and as such they are interested in the Trust. As Board of Governors were not properly constituted and the trust property are not properly managed by the Trust i.e Board of Governors of the said school and there has been a breach of the terms and conditions of the Trust, the instant suit has been brought praying for leave under Section 92 of the Civil P.C and also for other reliefs as provided under the said section, to institute the suit as well as for removal of the Trustees, appointing new trustees, for directing the trustees who have been removed to deliver possession of the trust property and also for settling a scheme for administration of the Trust properties. The leave was granted ex parte under Section 92 of the Civil P.C on hearing the plaintiff on 9th Jan., 1982. The defendants/respondents filed an application for revocation of the leave granted and for rejection of plaint subsequently.

3. This application was dismissed by C.K Banerjee, J. on the 7th Apr., 1982 holding inter alia that though it had not been specifically pleaded which immovable properties were situated within the Original Jurisdiction of this Court was yet it could not be stated that there no pleading at all so as to non-suit the plaintiffs. It was held that the suit was maintainable under Section 92 of the Civil P.C It was also held that the suit was instituted by the two persons claiming to have interest in the trust. The question whether these plaintiffs have any such interest or not cannot be gone into in this application and the same has to be decided in the suit. It has been further held that the learned Judge has taken a prima facie view of the matter solely for the purpose of the application, and the contention raised in the application would be properly gone into on proper materials at the time of hearing the suit. The application for revocation of the leave granted on 19th Jan., 1982, was rejected.

4. Against the aforesaid judgment and order the instant appeal has been preferred. Mr. Somnath Chatterjee with Mr. P.K Chatterjee, learned Advocates appearing on behalf of the appellants have contended in, the first place that the leave that was granted under Section 92 of the Civil P.C should be revoked inasmuch as St. Thomas School is a statutory body constituted by St. Thomas School Act 1923. It is not a public charitable trust, at all. It has been further submitted by Mr. Chatterjee that the Board of Governors was lastly reconstituted on 7th Nov. 1981 and the same was duly gazetted by the State Government. Under Section 4 of the said Act the life of the Board of Governors is for a period of 3 years from the date of publication of the names in the official gazette. It has been submitted that the life of the Board of Governors is subsisting. It has next been submitted that the instant suit at the instance of the two plaintiffs in their individual capacity cannot be treated as a suit within the meaning of Section 92 of the Civil P.C inasmuch as there is nothing to show that the plaintiffs, have got any interest in the matter of administration of the St. Thomas School. Even if it is taken for argument's sake that there is a constructive Trust which is, of course, not the case here the plaintiffs have to prove that they have an interest in the said trust. It is further submitted that the impugned order made by the learned Judge is not in accordance with law, inasmuch as the learned Judge has found that whether the plaintiffs claiming interest in the trust have in fact interest or not cannot be gone into in the application for revocation of leave but the same is to be decided in the suit. It has also been submitted that the purposes of the said School being to provide sound education with religious instructions in accordance With the principles of the Church of England for the children of Europeans and Anglo Indians as provided in Section 11 of the said Act, the plaintiffs being neither European nor Anglo Indian have manifestly no interest in the trust even if it is assumed that there has been a constructive trust in view of the provisions of Section 11 of the said Act.

5. It has also been submitted that the major part of the property is situated at Diamond Harbour Board which is outside the limits of the original jurisdiction of this Court and no leave under Clause 12 of the Letters Patent having been obtained by the plaintiffs, the suit is liable to be dismissed.

6. Mr. John, learned Advocate appearing on behalf of the respondents submitted in the first place that after coming into force of the Constitution Letters Patent cannot have any application and as such this appeal under Clause 15 of the Letters Patent is not maintainable. It has been further submitted by Mr. John that the instant appeal is also not maintainable as in view of the provisions of Section 104 read with O. 43, R. 1 of the Civil P.C

7. It is next submitted by Mr. John that in view of the provisions of Section 11 of the St. Thomas School Act it was rightly held by the learned Judge that at least there was a constructive trust for public charitable purposes and the petitioners being worshiping and subscribing members of the vestry of St. Paul's Cathedral, Calcutta they are interested in the trust and the leave granted under Section 92 of the Civil P.C is quite in accordance with the law. The application for revocation of the leave granted ex parte has been rightly rejected.

8. The first question that requires to be decided is as to whether the instant appeal under Clause 15 of the Letters Patent is maintainable or not. This question cropped up in the case of Chunilal Basu v. The Hon'ble the Chief Justice, High Court at Calcutta, AIR 1972 Cal 470 and it has been held that the Letters Patent of 1865 is not ultra vires the Government of India Act 1935 or of the Indian Independence Act 1947 and as such this Letters Patent is still in force being the law in force immediately before the commencement of the Constitution within the meaning of Article 372 read With Article 225 of the Constitution of India. In this case Mr. John, learned Advocate also appeared for the petitioners. This decision was followed in a later case reported in AIR 1977 Cal 239, Sukla Choudhury v. Miss Manjolyn Tweedie. It has been observed in AIR 1956 Andh Pra 161 (FB) In re: Putta Ranganayakulu, that Article 372 of the Constitution saves laws in force in the territory of India, notwithstanding the repeal of the Government of India Act. A combined reading of Article 225 and Article 372 of the Constitution indicates that the powers of the High Court conferred on it by the Acts repealed or otherwise can be exercised after the Constitution and the rules already made by the High Court before the Constitution in exercise of those powers are also continued after the Constitution. Such powers or the Rules made thereunder will however be subject to the laws made by a competent legislature or authority. So this contention is not sustainable and the instant appeal under Clause 15 of the Letters Patent is maintainable.

9. It has been tried to be contended by Mr. John, the learned Advocate for the respondents that the provisions of Clause 15 of Letters Patent being contrary to the provisions of Section 104 read with Order 43, Rule 1 of the Civil P.C which do not provide for an appeal against the impugned order rejecting the application for revocation of leave granted ex parte, the instant appeal is not maintainable. This submission is not substainable as the appeal provided under Clause 15 of the Letters Patent is saved by Section 104. In (1899) ILR 26 Cal 361 it has been observed that Section 104 of the Civil P.C provides that appeal shall lie from order mentioned therein save as otherwise expressly provided in the body of this Code or by any law for the time being in force and from no other orders. Appeals from decision of a single Judge to a Bench are provided in Clause 15 of the Letters Patent. They are not barred by Section 104 of the Civil P.C

10. It has also been held in (1916) 23 Cal LJ 443 at pp. 449-50: (AIR 1916 Cal 361 at p. 365), Mathura Sundari Dassi v. Haran Chandra Saha that the effect of Section 104 of the Civil P.C is not to take away a right of appeal given by Clause 15 of the Letters Patent, but to create a right of appeal in case even where Clause 15 is not applicable. The Supreme Court also observed in the case of Shah Babulal Khimji v. Jayaben D. Kania, (AIR 1981 SC 1786) that a combined reading of the provisions of Sections 4, 5, 104 and read with Order 49, Rule 3 of C.P.C lead to the irresistible conclusion that S. 104 read with Order 43, Rule 1 clearly applies to the proceedings before the trial Judge of the High Court. There is no inconsistency between the Letters Patent jurisdiction and Section 104 read with Order 43, Rule 1 of the Code.

11. As regards the next contention that there is no public charitable trust in respect of the St. Thomas School which is expressly governed by the said St. Thomas School Act 1923, it was tried to be contended on behalf of the respondents by referring to Section 11 of the said Act that all the property vested in the Governors by or under this Act should be deemed to be held in Trust, thereby meaning constructive charitable trust of a public nature. This contention, in our opinion, is totally devoid of any merit in view of the fact that Section 11 of the said Act does not at all either expressly or impliedly purport to create a charitable trust of a public nature. St. Thomas School and its property have to be administered in accordance with the provisions of St. Thomas School Act 1923 and if there is any breach of the provision of the Act then the remedy is to be sought under the said Act. The mode of constitution of the Board of Governors had been specifically laid down in S. 2 of the said Act. In these circumstances the contention that the St. Thomas School is a public charitable trust cannot be sustained. Hence the instant suit filed under Section 92 of the Civil P.C with the leave of the Court granted under the said section is not competent and the ex parte leave that was granted is liable to be revoked and withdrawn. The findings of the learned Judge that the question whether there is actually a public charitable trust and the plaintiffs have got any interest in the trust would be considered at the time of hearing in this suit and not before that is, in our opinion, not sustainable in view of the fact that the leave under Section 92 of the Civil P.C was granted ex parte without hearing the other side. On getting notice of the suit the instant application has been filed for revocation of leave by the defendants. As such this application requires to be decided as has been held in AIR 1952 Cal 82, Parasram Harnandri v. Chitandas. I have already held that the St. Thomas School and its properties do not constitute a public charitable trust at all but they are governed by the provisions of the St. Thomas School Act, 1923 (Bengal Act XII of 1923). Moreover the plaintiffs have failed to prove that they have any interest in such trust which is the basic requirement to enable the plaintiffs respondents to make an application for leave under Section 92 of the Cvil P.C Furthermore this application for leave to sue was made by the plaintiffs in their individual capacities and not in a representative capacity on behalf of persons interested in the trust. The ex parte leave that was granted on 19th Jan., 1982 are liable to be revoked and withdrawn and the suit is liable to be dismissed.

12. In the premises aforesaid the appeal is allowed and the ex parte leave granted on 19th Jan., 1982 is rejected and revoked. The suit is also dismissed.

There will be no order as to costs in the facts and circumstances of the case.

Appeal allowed.

Board Of Governors St. Thomas School And Others v. A.K George And Another

Concise Analytical Summary of the Judgment

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (represented by Mr. Somnath Chatterjee and Mr. P.K. Chatterjee)

Respondents' Arguments (represented by Mr. John)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Board Of Governors St. Thomas School And Others v. A.K George And Another

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