Supreme Court: While deciding this appeal, the Division Bench of J.B. Pardiwala* and R, Mahadevan, JJ., had to consider whether the Operation ASHA as registered under the Societies Registration Act, 1860, can be said to have fulfilled all the requirements stipulated under Section 92 of the CPC for the purpose of instituting a suit under the said provision? Delving in depth into the aspects of Section 92 CPC, the Court pointed out that a suit under Section 92 of the CPC is a representative suit of a special nature since the action is instituted on behalf of the public beneficiaries and in public interest. However, at the stage of grant of leave, the court neither adjudicates upon the merits of the dispute nor confers any substantive rights upon the parties. The Court explained that while the society cannot be considered as an ‘express trust’, but for an entity to be brought within the rigours of Section 92 CPC, the plaintiff has the option of also contending that a ‘constructive trust’ exists in the circumstances and a breach of such a constructive trust has occurred or that the directions of the Court are necessary for the administration of such a constructive trust.
The Court dismissing the appeal by Operation ASHA held that the underlying suit filed before the Single Judge of the High Court by Respondents 1 and 2, must be commenced at the earliest and the High Court must pay careful attention to whether the circumstances necessitating the imposition of a ‘constructive trust’ is made out or not. If yes, then it must delineate the properties which would be subjected to the constructive trust and assess whether the reliefs prayed for in the present plaint may be granted.
Background and Legal Trajectory:
Operation ASHA (appellant society) is a not-for-profit society founded in the year 2005 and registered under the Societies Registration Act, 1860 with its registered office in New Delhi. The appellant Society is engaged in providing health services through a plethora of activities primarily to the underprivileged sections of the society across India with special emphasis on the treatment, education and prevention of tuberculosis and other diseases. Its Memorandum of Association (MoA) stipulates that all the incomes and earnings of the society, whether movable or immovable, shall solely be utilised to further its aims and objectives. Furthermore, MoA stated that the members of the appellant society would not be entitled to any profits by virtue of their membership.
The Respondent 1 is a medical health professional and co-founder of the appellant Society. Vide communication dated 19-06-2020, her services/employment as President of Operation ASHA was terminated. The communication alleged that her termination was on account of various “omissions including misrepresentation” of her daughter’s previous employment, fabrication of documents, misappropriation of the assets and funds of the NGO as well as gross misbehaviour with the staff and the employees. Subsequently, the Board of the appellant Society passed a resolution terminating the Respondent 1 from the post/office of President and as a member of their Board.
Respondent 2, who is the mother of the Respondent 1, is one of the current members of the Board, instituted an Original Suit under Section 92 of the CPC immediately after the removal of the Respondent 1. The suit was filed before Single Judge Bench of Delhi High Court seeking declaration, permanent & prohibitory injunction and rendition of accounts. They alleged misconduct and breach of several of the society’s by-laws.
The Single Judge Bench of the High Court appointed Justice (retd.) R.V. Easwar as the Chairperson of the Board of the appellant Society with the consent of both the parties. Directions were issued to the Chairperson to submit a report and conduct a financial audit. The Chairperson submitted three reports, an Interim Forensic Audit Report and a Final Forensic Audit Report. The Single Judge Bench of the High Court vide the judgment and order dated 03-05-2024 granted leave to the Respondents 1 and 2 for the purpose of instituting a suit under Section 92 of the CPC, holding that all the elements and ingredients under Section 92 of the CPC stood fulfilled.
Aggrieved with the afore-stated decision, the appellant society preferred an appeal before the High Court’s Division Bench. However, the Division Bench dismissed the appeal vide the impugned order dated 21-08-2024. Aggrieved by the above dismissal, Operation ASHA approached the Supreme Court.
Court’s Assessment:
Perusing the dispute and its legal trajectory, the Court began its analysis by delving into the Object and purpose behind Section 92 of the CPC. The Court explained that obtaining a ‘grant of leave’ from the court before the suit can be proceeded with, acts as a procedural and legislative safeguard in order to prevent public trusts from being subjected to undue harassment through frivolous suits being filed against them and also to obviate a situation that would cause a further wastage of resources which can otherwise be put towards public charitable or religious aims. The Court noted that a suit under this provision can be termed as a ‘representative suit of a special nature’ since the object behind the enactment of this provision is the protection of public rights in the public trust. Therefore, the parties filing a suit by invoking this section are considered to be representatives of the public.
The Court further pointed out that the grant of leave under Section 92 of the CPC serves as a procedural safeguard, ensuring that public charitable trusts are protected from mala fide suits that may have the consequence of impeding their operations. At this stage, however, the court neither adjudicates upon the merits of the dispute nor confers any substantive rights upon the parties; what is established is merely the maintainability of the suit which is sought to be initiated by the plaintiffs.
Coming onto the conditions to be fulfilled for the applicability of Section 92 of the CPC, the Court referred to Ashok Kumar Gupta v. Sitalaxmi Sahuwala Medical Trust, (2020) 4 SCC 321, wherein the Court laid down the following conditions:
(a) the trust in question must be created for public purposes of a charitable or religious nature
(b) there must exist a breach of trust or a direction of the court must be necessary for the administration of the trust
(c) the relief claimed must be one or other of the reliefs as enumerated under Section 92(1) of the CPC.
The Court stated that in order to establish that a suit is not maintainable under Section 92, it would be sufficient to prove that any one of the conditions enumerated above has not been met, however, in order to assert its maintainability, all the aforesaid conditions need to be satisfied.
The Court further explained that a trust can be said to have been created for a ‘public purpose’ when the beneficiaries are the general public who are incapable of exact ascertainment. Even if the beneficiaries are not necessarily the public at large, they must at least be a classified section of it and not a pre-ascertained group of specific individuals.
Answering that whether institution/organisation can be construed to a ‘trust’ or a ‘constructive trust’, the Court stated that when no formal recognition has been given to the institution, the creation of a public trust can be inferred from the relevant circumstances surrounding the coming into existence of and functioning of the institution/entity in question. Although it is not possible to provide an exhaustive list of the same, yet they may include —
(a) the method of devolution of the property to the institution or its acquisition and the circumstances along with the intention behind the grant of property i.e. whether it was for the benefit of the organization/public beneficiaries or for the personal benefit of any particular individual/family.
(b) whether the grant is accompanied with any fetter/obligation or qualified with a condition, either express or implied, regarding its use by the grantee
(c) whether the ‘dedication’ was complete i.e., whether there was an absolute cessation or complete relinquishment of ownership of the property on the part of the grantor and a subsequent vesting of the property in another individual (trustee) for the said object;
(d) whether the public user or an unascertained class of individuals could exercise any ‘right’ over the organization and its properties
(e) the manner of use of the profits accrued, more particularly, whether it is applied/re-applied towards the benefit of the organization and its objectives, etc.
If the afore-stated circumstances exist and the entity has been registered as a society under the Societies Registration Act, 1860, much later in time, it would still be treated as a ‘public trust’ as per Full Bench ruling in Kesava Panicker v. Damodara Panicker, 1974 SCC OnLine Ker 58. However, if the institution has been registered, from its inception, as a society under the Societies Registration Act, 1860, the effect of registration under the 1860 Act would not be to automatically invest the properties of the society with the character of trust property.
Delving into Section 5 of the Societies Registration Act, 1860, the Court pointed out that the property belonging to the society can either be vested in ‘trustees’ or in the governing body of the society. This vesting has been envisaged because a society registered under the 1860 Act is not a juristic person or a body corporate capable of holding property by itself.
The phrase, “if not vested in trustees” in Section 5 of the 1860 Act, must be read to mean that a trust can be created, either expressly or impliedly, before or after the registration of a society, for the purpose of holding its properties. A public trust would be created prior to the registration of a society. In such a case, all the properties of the society which had been imbued with the character of ‘trust property’ would be subject to Section 92 CPC.
“However, if it is argued that a trust has instead separately been created for holding the property of the society after its registration as a society, the same must be clearly and sufficiently proven. Here, the separate trust which has been created and the properties which has been vested in said trust would be subject to scrutiny under Section 92 CPC. In both these scenarios, an ‘express trust’ would be created and in a suit under Section 92 CPC, the criteria i.e., the existence of an express or constructive trust, would be met”.
In the absence of such a separate vesting in trustees as aforesaid, the property belonging to the society would be automatically vested, through a deeming fiction, in the governing body of the society. Such a governing body is duty bound to ensure that the property is put towards and utilised for the purposes/aims of the society as laid out in its Memorandum of Association or any Rules and Regulations governing the said matter. In case of the society’s dissolution, the members would not derive any right to distribute the assets belonging to the society between themselves. During the subsistence and dissolution of the society, the members or the governing body cannot be said to possess any beneficial or individual interest over the property vested in them. They would also safeguard the society’s property for the future members of the society or the future governing body such that perpetuity is assigned to both the society and its property, unless expressly dissolved. All these factors evidence that the governing body must also act within the contours of a strict fiduciary relationship.
Perusing Section 5 of the 1860 Act, the Court pointed out that legislative creativity was employed to ensure that the incapability of the society to hold the property by itself does not have any practical effect on its ability to use and administer those properties while also ensuring that the property of the society may not be squandered or the object and purpose for which the society was formed may not be defeated by persons having control of the properties.
Explaining the concept of ‘constructive trust’ the Court said that a constructive trust, arises by operation of law, without regard to or irrespective of the intention of the parties to create a trust. It is imposed predominantly because the person(s) holding the title to the property would profit by a wrong or would be unjustly enriched if they were permitted to keep the property. It was pointed out that for application of ‘constructive trust’, the fiduciary must receive property or money which he cannot conscientiously retain. It is only thereafter that a constructive trust would be raised in favour of the beneficiaries on whose account the money was originally received. “To put it simply, the factum that the fiduciary ‘withheld’ the property from its rightful beneficiaries must be established. That such a fiduciary sought to misapply the property in contravention to the covenants that bound him, or sought to gain an advantage for himself, must be proved for a constructive trust to come into existence by the operation of law. That he further divested the said siphoned property/funds, would have to be proved in order to assert that the ‘constructive trust’ has additionally been breached”. Even in the absence of such a further divestment, the directions of the court may still be necessary for the administration of the constructive trust.
Coming onto the allegations of siphoning of funds as levelled by Respondents 1 and 2, the Court stated that, it could be said to have prima facie satisfied the condition required to apply the doctrine of constructive trust to the present facts. The Court added that if these allegations are found to have no substance or plainly false, the entire suit would fail. The suit could also fail for the reason that the circumstances which required the imposition of a constructive trust do not exist/have not been proven. However, if found true, all the property diverted for the purpose of obtaining a pecuniary advantage would be subject to a constructive trust, the administration of which can be sought in a suit under Section 92 of the CPC and the Respondents 3 and 4 respectively would be considered to be ‘constructive trustees’.
The Court explained that the phrase “persons having an interest in the trust” in Section 92 CPC must neither be construed too narrowly nor too widely. It must not be narrow because the word used is “interest” instead of “direct interest”. However, it must also be remembered that while no direct interest is required, the interest must denote a present and substantial interest and not a sentimental, remote, fictitious or purely illusory interest. The Court explained Respondents 1 and 2 respectively are persons interested in the trust and whether they are bringing the suit in a representative capacity, it is not just their designation or position which must be looked into or given importance to. While recognising that they have also sought some remedies related to personal grievances and the wrongful dismissal of the Respondent 1, there are several other allegations in the plaint which cannot simply be ignored and which give Respondents 1 and 2, a dual role/capacity, whilst they’re agitating the matter under Section 92 of the CPC. The larger background in which the suit is brought alludes to the existence of public interest also at play.
Vis-a-vis reliefs claimed by Respondents 1 & 2 falling within the scope of Section 92(1) of the CPC along with the object, purpose and capacity in which the suit is brought, the Court explained that the special nature of the suit under Section 92 CPC requires it to be filed fundamentally on behalf of the public for the vindication of public rights. Therefore, courts must go beyond the reliefs and give due regard to the object and purpose for which the suit is brought. The true nature of the suit must be determined on a comprehensive understanding of the facts of the matter and a hard-and-fast rule cannot be made for the same. The fact that certain private rights are being agitated must not be reason enough to ignore the other allegations made in the suit and dismiss it outrightly, provided the suit is instituted in a representative capacity. The reliefs in the present plaint, insofar as they agitate private rights, cannot be granted under a suit of this nature.
Decision:
With the afore-stated assessment, the Court clarified that the issues involving the day-to-day management of the institution and grievances by members qua other members as regards the election of members or certain board decisions pertaining to the reshuffling of the elected/board members, must not be made in a suit of this nature, especially when such grievances can be redressed through other mechanisms or under a regular suit not falling within Section 92 CPC.
Therefore, the reliefs insofar as the removal of the Respondent 1 from the post of President and board member, along with the grievances which the Respondents 1 and 2 respectively may have with the other board members, would have to be agitated in a separate suit not being falling under Section 92 of the CPC.
[Operation ASHA v. Shelly Batra, 2025 SCC OnLine SC 1605, decided on 5-8-5025]
*Judgment by Justice J.B. Pardiwala
Advocates who appeared in this case:
For Petitioner(s): Mr. Dama Seshadri Naidu, Sr. Adv. Mr. Bishwajit Dubey, Adv. Ms. Radhika Bishwajit Dubey, Adv. Mr. Karan Khetani, Adv. Mr. Umesh Dubey, Adv. Ms. Madhulika, Adv. Ms. Vuzmal Nehru, Adv. Mr. Manoj K. Mishra, AOR
For Respondent(s): Mr. Jai Anant Dehadrai, Adv. Mr. Sidharth Sharma, Adv. Mr. Anubhav Lamba, Adv. Mr. Pulkit Agarwal AOR
