Case Note & Summary
The case originated from a charitable trust created by a deed of settlement in 1953. The original trustees included the settlor, the fathers of the two plaintiffs, and several defendants. After the fathers resigned, the remaining trustees appointed defendants 4 to 9 as new trustees. The plaintiffs, sons of the resigned trustees, filed Suit O.S. No. 115 of 1961 in 1961 seeking a declaration that the new trustees were trespassers, for their own appointment as trustees, and for other reliefs including removal of certain trustees and recovery of funds. The trial court dismissed the suit on 12 March 1962 for non-compliance with section 92 of the Code of Civil Procedure, 1908, which requires sanction for suits concerning trusts. On appeal, the High Court partly allowed the appeal and remanded the suit on prayer 'e' (appointment of plaintiffs as trustees). After remand, the trial court held the suit maintainable and declared the plaintiffs entitled to be trustees. In further appeal, the High Court modified the declaration to state that the plaintiffs were next in the line of succession and entitled to claim appointment, but such appointment could only be made in a properly framed suit under section 92 CPC. Meanwhile, the plaintiffs had filed a fresh suit under section 92 in 1965. The defendants appealed to the Supreme Court against the High Court's declaration. The main legal issue was whether the High Court could grant a declaration of right to be appointed as trustees in a suit that did not comply with section 92 CPC, and whether such a declaration was barred by the Specific Relief Act. The appellant defendants argued that the prayer for appointment fell within section 92 and the declaration would operate as res judicata in the new suit. The respondent plaintiffs contended that the declaration merely recognized a right and the issue of appointment would be decided in the fresh suit. The Supreme Court held that the suit was essentially for appointment of trustees, squarely within section 92 CPC, and compliance with the section was mandatory. Granting a declaration of right to be appointed would prejudge the foundational issue and constitute res judicata, thereby barring the defendants from contesting the appointment in the subsequent properly framed suit. It would also be an indirect way of doing what is directly prohibited. Furthermore, a bare declaration without consequential relief was within the mischief of section 42 of the Specific Relief Act, 1877 (or section 34 of the 1963 Act). Consequently, the Supreme Court allowed the appeal, set aside the High Court's judgment and declaration, and dismissed the suit. The contentions of the parties in the newly instituted suit under section 92 were left open.
Headnote
A) Civil Procedure - Suit for Appointment of Trustees - Section 92, Code of Civil Procedure, 1908 - A suit seeking appointment of new trustees falls within the purview of section 92 CPC and requires compliance with its provisions, including prior sanction; failure to do so renders the suit not maintainable. (Paras 127 H; 128 E) B) Civil Procedure - Declaration of Right to Appointment - Section 92, Code of Civil Procedure, 1908 - Where a suit for appointment of trustees is filed without complying with section 92, any declaration granting the plaintiffs the right to be appointed is impermissible as it would foreclose the defendants' challenge in a subsequent properly framed suit and operate as res judicata. (Paras 128 A-C) C) Interpretation of Statutes - Indirect Attainment of Prohibited Act - Section 92, Code of Civil Procedure, 1908 - The principle that what is directly prohibited cannot be achieved indirectly applies; granting a declaration of right to appointment without compliance with section 92 constitutes an indirect circumvention of the statutory bar. (Para 128 B) D) Specific Relief - Declaratory Decrees Without Consequential Relief - Section 42, Specific Relief Act, 1877; Section 34, Specific Relief Act, 1963 - A bare declaration of a right without seeking consequential relief is within the mischief of section 42 of the 1877 Act (or section 34 of the 1963 Act) and cannot be sustained; the declaration in this case, which did not culminate in actual appointment, was therefore barred. (Paras 128 D-E)
Issue of Consideration
Whether the High Court was right in granting a declaration that plaintiffs were entitled to be appointed as trustees when the suit was filed without complying with section 92 of the Code of Civil Procedure, and whether such declaration was barred under the Specific Relief Act
Final Decision
Appeal allowed; judgment and declaration of the High Court set aside; suit dismissed. The contentions of the parties in the newly instituted suit under section 92 CPC were left open.
Law Points
- Legal points not extracted
- suit for appointment of trustees falls under section 92 CPC and requires compliance
- declaration of right without compliance is impermissible as it would be res judicata and an indirect circumvention
- bare declaration without consequential relief is within the mischief of section 42 of the Specific Relief Act
- 1877 (section 34 of 1963)
