TABLE OF CONTENTS

INDEX OF AUTHORITIES
 LEGISLATION 4

 CASES REFERRED 4
 BOOKS REFERRED 4
 LAW LEXICON AND DICTIONARIES 4
 LEGAL DATABASES 4

LIST OF ABBREVIATIONS 5

STATEMENT OF FACTS 6

STATEMENT OF JURISDICTION 7- 8

ISSUES RAISED 9

SUMMARY OF ARGUMENTS 10- 11

ARGUMENTS ADVANCED 12- 15

1. Whether the high court on the basis of analysis of fact and circumstances of case
while exercising its jurisdiction under sec 115 CPC was justified?
2. Whether a trust can be created by virtue of a conditional gift?
3. Respondent No.2 is a registered society does it affect the maintainability of the
suit in view of the judgement given in the case?

PRAYER 16

1
 INDEX OF AUTHORITIES

LEGISLATION
1. The Constitution of India, 1950.
2. Code of Civil Procedure

CASES REFERRED
Sukumaran Vs. Akamala Sree Dharma Sastha.
Sugra Bibi Vs. Haji Kummu

BOOKS REFERRED
1. V.N. Shukla, CONSTITUTION OF INDIA (12th ed., 2013).
2. Dr. D.D. Basu, CONSTITUTIONAL LAW OF INDIA, (8th ed., 2009).
3. P.M. Bakshi, THE CONSTITUION OF INDIA, (14th ed., 2017).
4. Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, (51st ed., 2014).
5. Dr. S.C. Kashyap, CONSTITUTIONAL LAW OF INDIA, (1st ed., 2008).
6. M.P. Jain, INDIAN CONSTITUTIONAL LAW, (7th ed., 2015).

LAW LEXICON AND DICTIONARIES

1. Bryan A. Garner, BLACK‟S LAW DICTIONARY, (2nd ed., 2004).
2. Justice R.P. Sethi, SUPREME COURT ON WORDS AND PHRASES, (2nd ed., 2004).
3. P. Ramanatha Aiyar, LAW LEXICON, (3rd ed., 2005).

LEGAL DATABASES
1. www.manupatra.com
2. www.indiancaselaws.org
3. www.indlaw.com
4. www.indiankanoon.org

2
 LIST OF ABBREVIATIONS

AIR All India Reporter

AP Andhra Pradesh
Art. Article
Bom. Bombay
Cal. Calcutta
CHN. Calcutta High Court Notes
CrLJ Criminal Law Journal
CrPC Criminal Procedure Code
Ed. Edition
HC High Court
Hon’ble Honourable
ILR Indian Law Reporter
IPC Indian Penal Code
J. Justice
Ltd. Limited
MP Madhya Pradesh
NOC Notes Of Cases
Ors. Others
Pat. Patna
QB Queen’s Bench
S. Section
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
UP Uttar Pradesh
v. Versus
Vol. Volume

3
 FACT OF THE CASE

Sri Swami Satya Dev purchased some land and constructed a building thereon. Thereafter on
30.11.1940, he waqfed (gifted) the disputed property to Respondent No.2, vide registered deed,
with the express condition that Respondent No.2 will not have a right to mortgage or right of sale
of the property. The property was waqfed for the development and publicity of the ‘Hindi
Language’ in western India and to establish a centre for publicity of Hindi. There was also a
recital in the deed to establish a library and to start a ‘Bhyakhan Mala’ etc. and the property was
to be managed by a sub- samiti constituted by respondent No.2.

When it was felt that respondent No.2 was not taking any interest in achieving the purpose for
which the property was dedicated, the appellants desired to initiate civil proceedings against the
respondent. One Sri Mukund Ram and Sri Krit Ram filed Application No.23/2004 under Section
92 of CPC and the appellants herein filed Application No.07/2006 under the same provision,
respectively, seeking permission to file a suit against the respondents herein in connection with
the disputed property. Since same relief was sought in both the petitions, both applications were
consolidated and Misc. Case No.23/2004 was made the leading case. The learned District &
Sessions Judge vide his order dated 12.11.2008 observing that the word “trust” is to be liberally
construed, and in a sense as favourable as possible to the assumptions of jurisdiction by a Court
under Section 92, allowed both the applications and permitted the appellants to file suit under
Section 92 of CPC.

4
 STATEMENT OF JURISDICTION

The appellant have the honor to present the instant matter before the honorable supreme court of
India under sec 136 of the constitution of India . The Hon‟ble Supreme court of India has the
jurisdiction to hear the instant matter under Section 92 of the Code of Civil Procedure (in short
‘CPC’) for obtaining permission to institute a suit was rejected, r/w Article 136 of Constitution
of India , 1952.

Section 92 of code of civil procedure states: 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 (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 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 (XX of 1863), [or by any
corresponding law in force in [the territories which, immediately before the 1st November,
1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-

5
section (1) shall be instituted in respect of any such trust as is therein referred to except in
conformity with the provisions of that sub-section.

Article 136 of the Constitution of India, 1950 states:-

 Special Leave Petitions in India which holds a prime place in the Judiciary of India, and
has been provided as a "residual power" in the hands of Supreme Court of India to be
exercised only in cases when any substantial question of law is involved, or gross
injustice has been done. It provides the aggrieved party a special permission to be heard
in Apex court in appeal against any judgment or order of any Court/tribunal in the
territory of India

 The Constitution of India under Article 136 vests the Supreme Court of India, the apex
court of the country, with a special power to grant special leave, to appeal against any
judgment or order or decree in any matter or cause, passed or made by any Court/tribunal
in the territory of India. It is to be used in case any substantial constitutional question of
law is involved, or gross injustice has been done.

 It is discretionary power vested in the Supreme Court of India and the court may in its
discretion refuse to grant leave to appeal. The aggrieved party cannot claim special leave
to appeal under Article 136 as a right, but it is privilege vested in the Supreme Court of
India to grant leave to appeal or not.

6
 ISSUES

1. Whether the high court on the basis of analysis of fact and circumstances of case
while exercising its jurisdiction under sec 115 CPC was justified?

2. Whether a trust can be created by virtue of a conditional gift?

3. Respondent No.2 is a registered society does it affect the maintainability of the

suit in view of the judgement given in the case?

7
 SUMMARY OF ARGUMENTS

1. Whether the high court on the basis of analysis of fact and

circumstances of case while exercising its jurisdiction under sec 115
CPC was justified?

On the basis of analysis of the facts and circumstances of the case and findings of the Court
below, while exercising its jurisdiction under Section 115 of CPC, was justified in setting aside
the order granting permission to initiate suit.

2. Whether a trust can be created by virtue of a conditional gift?

The learned District & Sessions Judge vide his order dated 12.11.2008 observing that the word
“trust” is to be liberally construed, and in a sense as favourable as possible to the assumptions of
jurisdiction by a Court under Section 92, allowed both the applications and permitted the
appellants to file suit under Section 92 of CPC. The learned District & Sessions Judge observed
that the object of dedication of the property shall decide the nature of it being considered a trust.
The law governing the execution of trusts is well settled. In the case of a private trust, where
there are more trustees than one, all must join in the execution of the trust. The concurrence of all
is in general necessary in transaction affecting the trust property, and a majority cannot bind the
trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one
body in the eye of law, and all must act together.

8
 3. Respondent No.2 is a registered society does it affect the maintainability
of the suit in view of the judgement given in the case?

O.P. No.2 is the registered society under the Indian Registration Act, 1960, does not affect the
maintainability of the suit as held by the Kerala High Court in 1992 (2) page 429, Sukumaran
Vs. Akamala Sree Dharma Sastha.” Being aggrieved by the order of the learned District &
Sessions Judge, the respondents filed civil revision under Section 115 of CPC before the High
Court of Uttarakhand at Nainital

Respondent No.2 is a registered society does it affect the maintainability of the suit in view of
the judgement given in the case

It is submitted by the counsel of the petitioners that the mere fact that Respondent No.2 is a
registered society does not affect the maintainability of the suit in view of the judgement given in
the case.

9
 ARGUMENTS ADVANCED

1. Whether the high court on the basis of analysis of fact and

circumstances of case while exercising its jurisdiction under sec 115
CPC was justified?

On the basis of analysis of the facts and circumstances of the case and findings of the Court
below, while exercising its jurisdiction under Section 115 of CPC, was justified in setting aside
the order granting permission to initiate suit.

The High Court may call for the record of an case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto, and if such subordinate
Court appears

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High
Court may make such order in the case as it thinks fit :

[Provided that the High Court shall no, under this section, vary or reverse any order made, or any
order deciding an issue, in the course of a suit or other proceeding, except where

(a) the order, if it had been made in favour of the party applying for revision, would have finally
disposed of the suit or other proceedings, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made.]

[(2) The High Court shall not, under this section, vary or reverse any decree or order against
which an appeal lies either to the High Court or to any Court subordinate thereto.

10
 2. Whether a trust can be created by virtue of a conditional gift?

The learned District & Sessions Judge vide his order dated 12.11.2008 observing that the word
“trust” is to be liberally construed, and in a sense as favourable as possible to the assumptions of
jurisdiction by a Court under Section 92, allowed both the applications and permitted the
appellants to file suit under Section 92 of CPC. The learned District & Sessions Judge observed
that the object of dedication of the property shall decide the nature of it being considered a trust.
The law governing the execution of trusts is well settled. In the case of a private trust, where
there are more trustees than one, all must join in the execution of the trust. The concurrence of all
is in general necessary in transaction affecting the trust property, and a majority cannot bind the
trust estate. In order to bind the trust estate, the act must be the act of all. They constitute one
body in the eye of law, and all must act together. Since the appellant was interested in achieving
the purpose for which property was transferred and therefore he approached the Court of learned
District Judge for seeking permission to file a suit against the Respondents. It is also not disputed
that the property was transferred (waqfed) to Respondent No.2 vide registered deed dated
30.11.1940.

It is submitted by the counsel of the petitioners that the mere fact that Respondent No.2 is a
registered society does not affect the maintainability of the suit in view of the judgement given in
the case of Sukumaran Vs. Akamala Sree Dharma Sastha, 1992 (2) 429; Sugra Bibi Vs. Haji
Kummu, [1969] 3 SCR 83; 1940 PC (10).

Lastly, it was a case of breach of administration of trust and the same can be decided by way of
evidence and that while granting leave the Court does not decide the right of the parties or
adjudicate upon the merits of the case. The only consideration relevant at such juncture is
whether there is a prima facie case for granting leave to file a suit and in the light of this
submission the High Court was not justified in neglecting the prima facie case of the appellants.
We have noticed that the trust deed was executed in favour of the respondents. But it appears in
view of the facts and circumstances of this case and the submissions made on behalf of the
respondents, that it was waqfed/gifted for a lawful purpose i.e. a “trust” is an obligation annexed
to the ownership of the property, and arising out of a confidence reposed in and accepted by the
owner, or declared and accepted by him, for the benefit of another, or of another owner, (Act II

11
of 1882 Trusts, Section 3]. Accordingly, in our opinion, the application filed by the appellants
was falling within the required ambit of Section 92 of CPC and the learned District Judge had
rightly permitted the appellants to institute a suit. We are of the considered opinion that High
Court has erred in setting aside the well reasoned order of the learned Judge and grossly erred in
not diligently examining the facts and circumstances in the light of the registered deed dated
30.11.1940.

3. Respondent No.2 is a registered society does it affect the maintainability

of the suit in view of the judgement given in the case?

Respondent NO 2 is the registered society under the Indian Registration Act, 1960, does not
affect the maintainability of the suit as held by the Kerala High Court in 1992 (2) page 429,
Sukumaran Vs. Akamala Sree Dharma Sastha.” Being aggrieved by the order of the learned
District & Sessions Judge, the respondents filed civil revision under Section 115 of CPC
before the High Court of Uttarakhand at Nainital being Civil Revision No.69 of 2008, for
quashing the order dated 12.11.2008 passed by learned District & Sessions Judge, Haridwar.
The said revision petition was allowed by the High Court vide its judgment dated August 1st,
2011, whereby the order granting permission under Section 92 CPC to institute suit was set
aside and quashed. Hence, this appeal by special leave.

We have carefully examined the registered deed dated 30.11.1940 whereby the disputed property
was transferred on certain conditions. The very first question after the perusal of the deed comes
before us is whether a trust can be created by virtue of a conditional gift.

We have heard learned counsel for the parties at length. Since the appellant was interested in
achieving the purpose for which property was transferred and therefore he approached the Court
of learned District Judge for seeking permission to file a suit against the Respondents. It is also
not disputed that the property was transferred (waqfed) to Respondent No.2 vide registered deed
dated 30.11.1940.

12
It is submitted by the counsel of the petitioners that the mere fact that Respondent No.2 is a
registered society does not affect the maintainability of the suit in view of the judgement given in
the case. it is argued by the counsel for Respondents that society Kashi Nagari Sabha is a
registered society and is also the absolute owner of the property of Satya Gayan Niketan Ashram,
Jwalapur and cannot be considered as a trust and the High Court has rightly allowed the revision
of the respondents. However, it appears to us that the present case deals only with the issue of
granting leave under Section 92 of CPC to interested persons to initiate a suit.

The present Section 92 of the CPC corresponds to Section 539 of the old code of 1883 and has
been borrowed in part from 52 Geo 3 c 101, called Romilly’s Act of the United Kingdom. A bare
perusal of the said section would show that a suit can be instituted in respect of a public trust by
the advocate general or two or more persons having an interest in the trust after obtaining leave
of the Court in the principal civil Court of original jurisdiction. An analysis of these provisions
would show that it was considered desirable to prevent a public trust from being harassed or put
to legal expenses by reckless or frivolous suits being brought against the trustees and hence a
provision was made for leave of the Court having to be obtained before the suit is instituted.

13
 PRAYER

IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR PETITIONER HUMBLY PRAYS THAT THE
HON’BLE HIGH COURT BE PLEASED:

A. THAT WHETHER THE HIGH COURT ON THE BASIS OF ANALYSIS OF

FACTS AND CIECUMSTANCES WAS JUSTIFIABLE TO EXERCISE ITS
JURISDICTION UNDER Sc 115 OF CPC.

B. THAT A TRUST CAN BE CREATED BY VIRTUE OF A CONDITIONAL GIFT.

C. THAT THE RESPONDENT NO. 2 IS A REGISTERED SOCIETY AND DOES

NOT AFFECT THE MAINTAINABILITY OF THE SUIT.

AND/OR

PASS ANY ORDER THAT THIS HON’BLE COURT MAY DEEM FIT IN THE INTEREST
OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

AND FOR THIS ACT OF KINDNESS, THE COUNSELS FOR

THE PETITIONER AS IN DUTY BOUND
SHALL EVER PRAY.

COUNSEL FOR THE PETITIONER

14