P L D 1955 Lahore 242 (PLP)

KAIKAUS, J.‑This second appeal arises out of a suit that has been dismissed by both the lower Courts on the preliminary objection that it could not be filed without the sanction of the Advocate‑General under section 92 C. P. C. In 1891, to commemorate the visit of Lord Lansdowne to Rawalpindi, R. B. Sardar Kirpal Singh and R. B. Sardar Sajjan Singh dedicated a building and its appurtenant land to the public for use as a place of entertainment and for the purpose of a library. The place was named Lansdown Institute. The members of the Cantonment Board, Rawalpindi, were consti tuted trustees. It appears that the land continued to be used by the public as a playground and the building as a library for a long time but about twenty years ago the building was converted into a cinema and given on lease. In 1946 the cinema was burnt and the trustees decided to renovate it and to lease it out again. The present suit was filed by two citizens of Rawalpindi suing under Order 1, rule 8 of the Code of Civil Procedure on behalf of themselves and other members of the. public for an injunction restraining the trustees form renovating the building as cinema and from using the Lansdowne Institute for purposes other than those for which the trust was created. The defendants in the suit are the trustees, the members of the Cantonment Board. An objection was taken by the defendants that in fact the building had already been renovated arid leased out and that the suit did not lie as framed. That matter is not before me. I have only to decide whether the suit has been correctly dismissed on the ground of want of sanction under section 92 of the Code of Civil Procedure. Section 92 Civil Procedure Code runs :- (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 consent in writing of the Advocate‑General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or it: any other Court empowered in that behalf by the Provincial 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 ; (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 pro perty 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. (2) Save as provided by the Religious Endowments Act, 1863, 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 with the provisions of that subsection. According to subsection (2) no suit can be field for relief, mentioned in the section except in accordance with the section (save in cases governed by the Religious Endowments Act which admittedly does not apply to the present case). The conditions for the applicablity of section 92 Civil Procedure Code are :‑‑ (1) There should be in existence a trust created for public purpose of a charitable or religious nature (2) the reason for the suit should be a breach of trust or the necessity of a direction of Court in relation to such trust ; and (3) the relief claimed should be out of those specified in subsection (1). As regards condition No. 1 the matter does not present any difficulty though learned counsel for the plaintiff‑appel lants contends that the trust in dispute does not fall under section 92 at all. The argument put forward is that the trust is not a charitable one (religious admittedly it is not) because "charitable" has reference to the poor and a trust which is for the benefit of general public cannot be called "charitable." Learned counsel admits that there is another interpretation of the word "charitable" which will include the advancement off public utility but urges that I should adopt the narrow inter pretation. I see no reason for doing so. "Charitable purpose" is thus defined in section 2 .of the Charitable Endowments Act, 1890. "In this Act, "charitable purpose" includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship." . Section 118 of the Succession Act makes wills for 'charit able uses' invalid in certain cases and gives examples of such uses. I quote below the section with the illustration :‑ "No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons." Illustration A having a nephew makes a bequest by a will not execu ted and deposited as required

for the relief of poor people ; for the maintenance of sick soldiers ; for the erection or support of a hospital ; for the education and preferment of orphans ; for the support of scholars ; for the erection or support of a school,; for the building and repairs of a bridge ; for the making of roads ; for the erection or support of a church ; for the repairs of a church ; for the benefit of ministers of religion ; for the formation or support of a public garden. All these bequests are void. Even apart from these statutory provisions, I would not be inclined to accept the interpretation put upon the word "chari table" by learned counsel for the appellant for it would unduly limit the operation of section

92. I hold that the trust in dis pute is one within the section, The second condition of the applicability of section 92. is admittedly present. There are allegations of a breach of trust. The plaintiffs state that the trustees are using the trust pro perty for a purpose other than for which it was intended Para 13 of the plaint expressly alleges a breach of trust. The real contest is with respect to the third condition Can it be said that the relief prayed for in this case is one of those mentioned in subsection (2) of section 92 ? It is neces sary to quote here Para 13 of the plaint, which states the real cause of action; and the relief clause. "

13. That the public is the beneficiary under the trust and they have a right to compel the trustees to perform their duties properly and to restrain them from committing their contemplated breach of trust. The plaintiffs are, therefore, suing on their own behalf and as representatives of the public who are too numerous." "

17. It is prayed that permanent injunction be issued against the defendants as trustees of the trust not to reno vate the building as cinema and not to use the said institute for any purposes other than those for which the authors created the trust. Costs be allowed. The argument put forward on behalf of the defendants is that the relief asked for is within clause (A). It is urged that the section covers all suits founded upon any breach of trust for according to clause (h) a relief is to be according to the nature of the case. This argument was put forward before their Lordships of the Privy Council in Abdur Rahim v. Syed Abu Mahomed Barkat Ali Shah (A I R 1928 P, C. 16) and was repelled as will appear from the following passage in the judgment :‑ "It is urged broadly on behalf of the respondents that all suits founded upon any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought much be brought in accordance with the provisions of section 92, Civil Procedure Code. The short answer to that argument is that the Legislature has not so enacted. If it had so intended, it would have said so in express words, whereas it said, on the contrary, that only suits claiming any of the reliefs specified in subsec tion (1) shall be instituted in conformity with the provisions of section 92, subsection (l). The reliefs specified in subsection (1) (a) (h) do not cover any of the reliefs claimed in this suit unless the words 'fur ther or other relief's in clause (h) can be held to cover r" ;, It is argued that the words 'such further or other relief as the nature of the case may require must be taken, not in connection with the previous clauses (a) to (g), but in connection with the nature of the suit, viz., any relief other than (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Their Lordships are unable to accept this argument. First, because the words further or other relief' must on general principles of construction be taken to mean; relief of the same nature as clauses (a) to (g). Secondly, because such construction would cut down substantive rights which existed prior to the enactment of the Code of 1908, and it is unlikely that in a Code regulating procedure the Legislature intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time." Their Lordships pointed out in that case that sub section (2) of section 92 had been introduced for the first time in 1908 and it was intended to set at rest the divergence of opinion that existed on the question as to whether section 92 (then section 539) provided only an additional remedy or whether a suit in respect of a breach of a public trust could be filed only in accordance with the provisions of this section. The legislature had accepted the view of the Bombay High Court according to which suits for reliefs mentioned in the section could only be filed in accordance with the provisions of the section. Their Lordships observed that the language of sub section (2) was appropriate and sufficient if 'this was the intention of the legislature and was inadequate if the intention of the legislature was, as urged before their Lordships, that a complete change in the law had been effected and that a suit in respect of a breach of trust whatever the relief asked for could not be filed except in accordance with section

92. As will appear from the passage quoted above, their Lordships held that clause (h) covers only reliefs that are ejusdem generis with the reliefs mentioned in clauses (a) to (g) and it would be clear that the real question for determination in the present appeal is whether the relief asked for is of such character. What is the criterion for determining whether the relief asked for is ejusdem generis with those described in clauses (a) to (g) ? It appears to me that in order to determine this question we should have regard to the object and scope of section

92. The object of the section obviously is to grant the Court full power for the proper administration of public trusts. (It is not necessary to discuss whether the section grants or merely recognises an existing power.) If there is no trustee the B Court can appoint one. If there is a trustee who does not do his duty, the Court can remove him and appoint another. The Court can frame a scheme and can also give further directions for the proper administration of the trust. Subsection (1) of section 92 says "where the direction of the Court is deemed necessary for the administration of any such trust." I am of the opinion that in all cases where the relief prayed for is a' direction in the administration of the trust the relief would be within clause (h). The relief asked for in the present suit is that the trustees be prohibited from putting the property to a particular us‑ The relief is similar to that mentioned in clause (e) though not covered by it and the effect of grant of relief is to control the trustees in their management of the trust. I have already quoted clause 13 of the plaint where in it is stated that the plaintiffs are entitled to force the defendants to do their duty. The object of the suit is to force the trustees to manage the trust property properly. I have no doubt that the relief is ejusdem generis with the previous clauses and within clause (h) The intention in providing a sanction for the suit is that the trustees should not be harassed with irresponsible suits in the matter of management of the trust. If every step that the trustees take could be allowed to be impeached by a suit without sanction, proper management of trusts may become an extremely onerous task. I hold the present suit requires sanc tion under section 92 and is not competent without such sanc tion. I will clarify, however, lest there may be any misappre hension, that had a member of the public alleged obstruction to his personal right to the use of the trust property and prayed for an injunction prohibiting the obstruction to the exercise of that right whether against the trustees or any other person, the suit would not have required sanction. For ins tance, if a plaintiff had alleged that he was going to use the building which was dedicated as a library and was prevented by a particular person, he could file a suit against that person, although he be a trustee, for an injunction prohibiting inter ference with the exercise of the right. Section 92 does not bar F suit for the exercise of the individual rights to trust proper. This appeal fials and is dismissed with costs. A. H. Appeal dismissed.