Saji Koduvath, Advocate, Kottayam

Synopsis

1. Introduction
2. Crown – Constitutional Protector of all Charities
3. Court is the Ultimate Protector of all Charities:
4. It is the Duty of Courts to Protect Trusts
5. Plaintiffs were Allowed to Protect Property
6. Duty of Courts to Protect Trusts – Applies to Churches
7. Jurisdiction of Courts, Analogous to Infant
8. Fundamental Principles cannot be Varied
9. Court will apply Cy Pres Doctrine
10. Conditions for Cy Pres Doctrine
11. Taking Over Management of Trusts by the State
12. Service of a Priest & Admin. of Institution, Secular Acts
13. Legislature can Enact Law and Courts have Jurisdiction
14. Constitutional Rights and Interference by Court
15. Rights under Art. 25 and 26 are not absolute
16. Rights under Art. 30
17. Relevance of Common Law in Affairs of Churches
18. Church Tribunal – Authority
19. Sec. 38 of the Specific Relief Act
20. Courts Act as Guardian of Charitable Organizations
21. Court Interference in Religious Decisions:
22. Church of North India Case
23. Court Enforces Discipline of Church:
24. Church is a voluntary body
25. Court Interference in Faith Matters:
26. Court Interference in Religious and Communal Affairs:
27. Private Trust: Settlement of Scheme
28. Beneficiaries can Invoke Jurisdiction of Courts
29. A Trust Shall Not Fail For Want of a Trustee

Introduction

Because the affairs of charitable trusts are matters of public concern, under English Law, the Crown, as parens patriae, is the protector of charitable trusts. Indian Law also follows this principle.[1]In our Constitution, the ‘Concurrent List’ of the Schedule VII, contains ‘trust and trustees’ and ‘charities and charitable institutions, charitable and religious endowments and religious institutions’, whereby both the Centre and the States are competent to legislate and regulate trusts or charities and charitable institutions. Under Article 26(d) of the Constitution the legislature can validly regulate the administration of the property of a religious denomination.[2]

Dr. BK Mukherjea on Hindu Law of Religious and Charitable Trusts[3] reads in this regard as under:

• “In English law, the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. The Attorney General represents the proper person to take proceedings on this behalf and to protect charities. Whenever an action is necessary to enforce the execution of a charitable purpose, to remedy any abuse or misapplication of charitable funds, or to administer a charity, the Attorney General is the proper plaintiff, whether he is acting alone ex officio as the officer of the Crown and, as such, the protection of charities, or ex relations, that is to say, at the request of a private individual called a ‘relator’ who thinks that the charity is being or has been abused. The Attorney General does not come before the court as a plaintiff asserting a private right but as an officer of the Crown informing the Judge, another officer of the Crown, of some breach of trust or neglect of duty on the defendant’s part in the management and administration of charities which requires to be remedied. That is why such actions were called ‘information’ – a name which was dropped only after the Supreme Court of Judicature Act, 1873.”[4]

In Raju Muttu Rama Linga Vs. Perianayagum (1874),[5] it was observed by Privy Council that there could be little doubt that the superintending authority, over temples and religious endowments, was exercised by the old rulers.[6]

Crown – Constitutional Protector of all Charities

Tudor on Charities[7] reads as under:

• “The Court and the Crown: The Crown as ‘parens-patriae’. The character of ‘parens-patriae’ which formerly imposed upon the Crown the duty of watching over the interests of wards makes it the protector of charity in general. Therefore, as Lord Eldon said, ‘where money is given to charity generally and indefinitely, without trustees or objects selected, the King as parens-patriae is the constitutional trustee’. While the jurisdiction of the court of Chancery over charitable foundations and gifts was in general conterminous with that over trusts of every kind, in one respect it had a jurisdiction peculiar to charitable trusts, in that wherever there was an intention to create a trust in favour of charity, the Court would give effect to the intention, in the first place by validating a defective gift and subsequently by reforming the trusts, if necessary, so that the donor’s paramount intention might be perpetually observed. This was an inherent jurisdiction, not conferred by statute, and now vested in the High Court of Justice and assigned to the Chancery Division”.

Early Enactments Governing Public Trusts – During British Regime[8]

• Bengal Regulation XIX of 1810
• Madras Regulation VII of 1817
• Bombay Regulation XVII of 1827 
• Religious Endowments Act, which repealed the Bengal and Madras Regulations
• The Societies Registration Act, 1860
• Religious Endowments Act, 1863
• Civil Procedure Code of 1877: under S. 539 a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes. (This section was later amended, and incorporated provision similar to S. 92 of the present Civil Procedure Code, Act V of 1908.)
• Religious Societies Act, 1880
• Indian Trusts Act, 1882 (applicable for private trusts)
• Charitable Endowments Act, 1890
• Civil Procedure Code, 1908 
• Registration Act, 1908
• Official Trustees Act, 1913
• Charitable and Religious Trusts Act, 1920
• Sikh Gurudwara Act, 1925
• Orissa Hindu Religious Endowments Act, 1939
• Mussalman Wakf Act, 1923
• Mussalman Wakf Validating Act, 1913
• Mussalman Wakf Validating Act, 1930
• United Provinces Charitable Endowments Rules, 1943

Important Enactments Governing Public Trusts, After Independence

• Income Tax Act, 1961
• Religious Institutions (Prevention of Misuse) Act, 1988
• Foreign Contribution (Regulation) Act, 2010
• Companies Act, 2003
• Hindu Religious and Charitable Endowments Act, 1951
• Wakfs
• Wakf Act, 1995

State Acts

• Bombay Public Trust Act, 1950 (BPTA) is the first Public Trusts Act enacted by a State, invoking the principle of ‘parens-patriae’.  It required registration of all public trusts with the authorities appointed under the Act. All other State Public Trusts Acts followed this Act in their legislation.
• Bihar Hindu Religious Trusts Act, 1950
• Madhya Pradesh Public Trusts Act, 1951
• Travancore-Cochin Hindu Religious Institutions Act, 1950
• Orissa Hindu Religious Endowments Act, 1951
• Rajasthan Public Trust Act, 1959
• Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959
• Madras Hindu Religious And Charitable Endowments Act, 1951
• Uttar Pradesh Charitable Endowments (Extension of Powers) Act, 1950
• Charitable Endowments (U.P. Amendment) Act, 1952
• AP Charitable and Hindu Religious Institutions and Endowments Act, 1987
• Karnataka Hindu Religious Institutions and Charitable Endownts Act, 1997
• State Laws Governing Societies
• Travancore Cochin Literary Scientific and Charitable So.Regn. Act, 1955
• Rajasthan Societies Registration Act, 1958
• Karnataka Societies Registration Act, 1960
• West Bengal Societies Registration Act, 1961
• Madhya Pradesh Registration Adhiniyam, 1961
• Tamil Nadu Societies Registration Act, 1975
• Manipur Societies Registration Act, 1989
• Jammu – Kashmir Societies Registration Act, 1998
• Societies Registration (Uttar Pradesh Amendment) Act, 2000

Court is the Protector of All Charities

It is trite law – in the matters as to custody of a minor, management of its affairs etc., paramount importance or concern is the welfare of the minor. The same principle is applied by our courts in the matters of public trusts also. The court is accepted as the guardian of the public charitable trusts or institutions.[9]

Courts have jurisdiction to enforce trusts.[10] As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[11] Sec. 92 CPC expressly authorizes designated courts to give directions for administration of public trusts. It is also the duty of Courts to protect and safeguard the property of religious and charitable institutions from wrongful claims or misappropriation[12] and from diversion from the objects to which it was dedicated.[13] The Court has necessarily a duty to protect the interest of the Public Trust and the courts should not adopt hyper technical approach, while dealing with the application for granting leave under Section 92 of CP.C.[14] Courts are bound to zealously guard the interest of the Trust, since the question of public interest is also involved.[15]

Where the Shebait of a temple has done something which is obviously adverse to the interest of the institution, it may be that the court would allow a disinterested third party to file a suit, but such a suit must be filed in the interest of the foundation or the deity.[16] The Supreme Court, in Chenchu Ram Reddy Vs. Government of AP,[17] observed that what is true of ‘public property’ is equally true of property belonging to religious or charitable institutions or endowments and that property of such institutions or endowments must be jealously protected by the courts. It is remarked further as under:

• “It must be protected, for, a large segment of the community has beneficial interest in it (that is the raison d’etre of the Act itself). The authorities exercising the powers under the Act must not only be most alert and vigilant in such matters but also show awareness of the ways of the present day world as also the ugly realities of the world of today. They cannot afford to take things at their face value or make a less than the close stand best attention approach to guard against all pitfalls.”

In Subramannaiya Vs. Abbinava (1940)[18]  it was observed by the Madras High Court as under:

• “When the trust property is without a legal guardian, owing to any defects in the machinery for the appointment of a trustee or owning to unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actually controlling its affairs in the interest of the trust should not be entitled, in the absence of any one with a better title, to take these actions which are necessary to safeguard the interests of the trust”.[19]

In In-Re, Man Singh[20] it is pointed out by the Delhi High Court that in legal theory the Court is the guardian of charity, as it is of an infant. Sec. 92 CPC, which pertains to public trusts, is enacted adopting the English principles. The deity occupies, in law, with respect to the administration of property, the position of an infant.

Pollock and Maind’s ‘History of English Law’[21], it is laid down:

• “A church is always under age and is to be treated as an infant and it is not according to law that infants should be disinherited by the negligence of their guardians or be barred of an action in case they would complain of things wrongfully done by their guardians while they are under age.”[22]

Inherent Jurisdiction of Court in the Affairs of Public Trusts

Snell’s Principles of Equity[23] reads as under:

• “Apart from statute, the court has an inherent jurisdiction to remove a trustee and to appoint a new one in his place. As the interests of the trust are of paramount importance to the court, this jurisdiction will be exercised whenever the welfare of the beneficiaries requires it, even if the trustees have been guilty of no misconduct”.

Apart from the jurisdiction of courts to administer and enforce public trusts,[24]and set right mismanagement, fraud or maladministration whenever the assistance of the Court is sought for,[25]the courts have the power of judicial review and even a duty[26] in the matters of public trusts. Court is the guardian of the public charitable trusts/institutions.[27] Interest of public and public trusts is its paramount consideration.[28]Sec. 92 CPC expressly authorizes designated courts to give directions for administration of trusts. It is held by Privy Council in Ram Dularey Vs. Ram Lal[29]that ‘court has a duty, once it finds that it is a trust for public purposes, to consider what is best in the interest of the public’.[30]

In CK Rajan Vs. State of Kerala[31] it is held by the Kerala High Court that apart from the right of suit under S. 92 of the Code of Civil Procedure, the courts have got ‘inherent jurisdiction’ to protect the interest of a religious or a charitable trust or deity. It was found to be a ‘reserve power’ with the courts.  The courts can invoke this discretionary power, when it is warranted, though not conferred by any statute, since this class of persons cannot, on their own, take proceedings to protect or safeguard their interests and set right the abuses or mismanagement or maladministration. Justice BK Mukherjea on Hindu Law of Religious and Charitable Trusts[32]points out the following, as to the jurisdiction and the remedies granted independent of the statute, as under:

• “The fact that a temple committee has been appointed does not oust the general jurisdiction of the Court to make any order that it considers necessary for due administration of the trust. The true principle undoubtedly is that the courts would not ordinarily interfere with the statutory powers conferred upon the members of the temple committee so as to deprive them of their legitimate functions. But the general right of a subject to ask for the Court’s assistance to set right abuses or to have other remedies independent of the statute is not thereby taken away. In England, it is settled law that the Court’s jurisdiction to make suitable orders in the case of a charitable trust is not in any way affected by reason of the existence of visitatorial powers.”

Affairs of a trust are essentially matters of public concern.

In Attorney General Vs. St. Cross Hospital (1853)[33] Sir Samuel Romilly observed as under:

• ‘The only remaining point then on this part of the case is whether the jurisdiction of this Court is taken away by reason of the visitorship of the Bishop of Winchester. If this were the law it would be very unfortunate, for it does not require the history of this case to teach us that the visitorship vested in any one, whether a corporation sole or aggregate or the heir of the founder is a mere nominal office, the duties and functions of which are rarely if ever spontaneously performed. But the law is not so. Where there is a clear and distinct trust, this Court administers and enforces it as much whether there is a visitor as where there is none. This is clear both on principle and on authority’.”

In Manohar Ganesh Vs. Lakhmiram (1888)[34] West and Birdwood, JJ. observed:

• “Civil Courts have jurisdiction to enforce trusts for charitable and religious purposes, having connection with Hindu and Mohammadan foundations and to prevent fraud and waste in dealing with religious endowments, though incidentally it has to take cognisance of religious or caste questions. The religion of the Hindu population being jurally allowed, the duties and services connected with it must be deemed objects of public concern and at least as to their physical and secular elements enforceable like other obligations.”[35]

The Madras High Court had held in Sitarama Chetty Vs. Subramania Ayyar (1917)[36] that the High Courts and the mofussil Courts were Courts of both law and equity and that they can exercise jurisdiction over religious and charitable institutions in the same way as the Courts Chancery did in England.[37] It is also the duty of Courts to protect and safeguard the property of religious and charitable institutions from wrongful claims or misappropriation.Where the Shebait of a temple has done something which is obviously adverse to the interest of the institution it may be that the court would allow a disinterested third party to file a suit, but such a suit must be filed in the interest of the foundation or the deity, as the case may be.[38]

Plaintiffs were Allowed to Protect Property

It is taken note of in Latin Archdiocese of Trivandrum Vs. Seline Fernandez[39] that as per the Canon Law the church property vests in the hands of the Bishop or the Vicar. But, it is observed that the parish being by law a public juridic person, the plaintiffs, as the elected representatives of the parishioners entrusted with the administration of the church, were competent to initiate civil proceedings with the ultimate aim of protecting the property belonging to the church; and that the plaintiffs were entitled to represent the juridic person before the Civil Court.

Charitable and Religious Trusts Act, 1920

The object of the act is shown to be ‘to provide more effectual control over the administration of Charitable and Religious Trusts’; and it is made to provide facilities for the obtaining of information regarding trusts created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters, and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts’.

Following are the important provisions of the Act.

• “Sec. 2. Interpretation. — In this Act, unless there is anything repugnant in the subject or context, ‘the Court’ means the Court of the District Judge or any other Court empowered in that behalf by the State Government and includes the High Court in the exercise of its ordinary original civil jurisdiction.
• Sec. 7. Powers of trustee to apply for directions.—
• .(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
• Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
• (2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction hereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
• (3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
• (4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.
• Sec. 9. Savings.— No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:—
• .(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure 1908 (5 of 1908), is pending in respect of the trust in question;
• (b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any Society registered under the Societies Registration Act, 1860 (21 of 1860); or
• (c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
• Sec. 12. Barring of appeals.— No appeal shall lie from any order passed or against any opinion, advice or direction given under this Act.”

The purport of the Act can be analysed as under:

• Court gives opinion, advice or direction to trustees alone.
• The advice or direction is given only on any question affecting the management or administration of the trust property.
• It is on the principle – Court is Guardian or Protector of All Public Trusts.
• It envisages a ‘summary disposal’.
• Court exercises a discretionary jurisdiction in this matter.
• Court is not bound to give opinion if the question not susceptible to a summary disposal.
• The opinion is not given in matters which are seriously disputed or contested.
• There will not be adjudication on questions of fact or law.
• Operation of this section is subject to Sections 9 and 12 (given above).

Court is Protector of All Public Trusts – Cannot Refuse Opinion

Referring Sec. 7 of the  Charitable and Religious Trusts Act, 1920, it is observed in Sennimalai Swamy Madam Trust, Palani v. NIL, 1999-3 CTC 390, as under:

• “10. In view of these decisions, it has to be held that petitioner is competent to file an application before lower court seeking opinion. Unless Court finds that the opinion cannot be given since there are complicated facts or question of law is to be decided, it may not be proper on its part to refuse to give opinion.  After all, Court is guardian or Protector of all public trusts and it cannot refuse to give its opinion, when the same is sought for by a Trustee.” (Avoch Thevar v. Chummar, AIR 1957 Ker 171, In Re Birla Jankalyan Trust, AIR 1971 Cal. 290, In Re Dhanalat, AIR 1975 Cal. 67, referred to)

Courts desist if Complicated Facts or Question of Law

In Avoch Thevar v. Chummar, AIR 1957 Ker 171, it is observed that serious questions of res judicata, estoppel, good faith etc. could not be adjudicated under Sec. 7 of the  Charitable and Religious Trusts Act, 1920. It is said as under:

• “6. …. “The Court under the section exercises what might be called its consultative jurisdiction, giving guidance to the trustee. The court is not, however, to grant sanction merely because it is applied for. The limitation is that the court will refuse to consider the matter if in its opinion the question is one not capable of summary disposal e.g. if it is one of the detail or difficulty. In any event the court will consider judicially the matters placed before it before disposing of the matter.”

This Kerala decision is followed in Hasan Bin Mubarak v. Chief Judge, City Civil Court, Hyderabad AIR 1999 AP 11, observing as under:

• “Section 34 of the Act contemplates only a summary disposal on non-controversial issues. The mental condition of a person being an important personal problem, the Court cannot dispose of the same in a summary manner. What the Court below has done was to examine 3rd respondent, who is alleged to be an insane person and give the opinion on the basis of her statement. Though Ex.R-1, certificate, alleged to have been given by a psychiatrist, was marked, the Court made no effort to examine the said doctor. Obviously, this could not have been done because the matter has to be disposed of in a summary manner. Thus, it is evident that the advice that was sought for by the trustee required a determination on contentious facts and the jurisdiction of the Court under section 34 being only in the nature of giving guidelines or directions without entering into the merits, the application ought not to have been entertained by the Court. The trustee might have got a valid and satisfactory opinion had he approached a qualified medical man or the Court in a properly instituted suit.
• 23. In Avoch Thevar case (supra) following the decision in Armugan Chetty vs. Raja Jagaveera ILR 28 Madras 444, it was clearly held that while providing the trustees a right to apply to the Court for opinion to the Management and the Members, Section 34 embodied at the same time, a limitation governing the questions to be asked viz. that there should not be hypothetical and any questions of details or difficulty or importance, not proper in the opinion of the Court for summary disposal……” (quoted in Ashok Kumar Kapur VS Ashok Khanna, AIR 2007 SC  6; 2007-5 SCC 189).

Avoch Thevar v. Chummar, AIR 1957 Ker 171, is followed in P. D. Jaiswal v. Dwarikadhish Temple Trust, 2006 2 ADJ 680; 2006 3 AllLR 21; 2006 3 AWC 2823 saying as under:

• “39. The last strand of Mr. Ravi Kant’s arguments was a Kerala Division Bench decision given in the case of Avoch Thevar v. Chummar, A.I.R. 1957 Ker 171, which was delivered for the Court by Hon’ble Mr. Justice Varadaraja lyengar. With the greatest of respect, it is a beautiful learned judgment which should be read by any reader of this judgment and we do not set out the materials collected therein simply because we cannot do it better or in a briefer way. We respectfully referred the reader to paragraph-6, 7, 8 and 9 of the said judgment.
• 40. Following the said judgment and the authorities quoted there, which are fully persuasive in our respectful opinion, we must opine that a decision under Section 7 of the 1920 Act is not to be given at all by the District Court in matters which are seriously disputed or contested, or which required difficult decisions on questions of fact or law,”

‘Breach of an Obligation’in Sec. 38 of the Specific Relief Act

Under Sec. 38 of the Specific Relief Act the court is expressly authorized to grant injunctions to prevent breach of an obligation existing in favour of the plaintiff or where the defendant is trustee of the property for the plaintiff. Sec. 38 of the Sec. 38 of the Specific Relief Act reads:

• “38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
• (2) When any such obligation arises from contract, the Court shall be guided by the Rules and provisions contained in Chapter II.
• (3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely;
•         (a) where the defendant is trustee of the property for the plaintiff;
•         (b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
•         (c) where the invasion is such that compensation in money would not afford adequate relief;
•         (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

The word obligation is defined in Sec. 2 of the Specific Relief Act with a widermeaning.It is so wide that it encompass obligations ‘whether expressly or by implication’.Italsoreads: ” ‘obligation’ includes every duty enforceable by law to include ‘every duty enforceable by law”. The word ‘trust’ is also used in a wider sense[40] in this Act as under:   ” ‘trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act.” It is also noteworthy that ‘trust’ is not alien to the affairs of a society inasmuch as the administrators of  societies can be ‘trustees’ as seen from Sec. 5 and 16 of the Societies Registration Act, 1860, which reads as under.

• 5. Property of society how vested: The property, movable and immovable belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings civil and criminal, may be described as the property of the governing body of such society for their proper title.
• 16. Governing body defined: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Courts Act as Guardian of Societies & Can Oversee its Functions

In I. Nelson Vs. Kallayam Pastorate[41]  it is laid down by our Apex Court as under:

• “Keeping in view the interest of the general public, we see no reason as to why in a case of mismanagement of such charitable organizations, although run by minorities, the Court cannot oversee its functions. The Courts, indisputably, act as guardian of such societies. [See Guruvayoor Devaswom Managing Committee Vs. CK Rajan: AIR 2004 SC 561: (2003) 7 SCC 546.] Even otherwise, rights under Articles 25 and 26 of the Constitution are not absolute and unfettered. The right to manage, it goes without saying, does not carry with it a right to mismanage.”

Court Enforces Discipline of Church:

Church is a voluntary body. The Supreme Court held in Most Rev. PMA Metropolitan Vs.  Moran Mar Marthoma[42] as under:

• “A church is formed by the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual basis – their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognised. Therefore, all religious bodies are regarded by courts of law in the same position in respect of the protection of their rights and the sanction given to their respective organisations.”

Superintendence of the Temple: Not a Property

In Bira Kishore Deb Vs. State of Orissa (1964).[43] A Constitution Bench of the Supreme Court had held that Section 6 of Sri Jagannath Temple Act, 1954 extinguished the hereditary right of the Raja and entrusted secular management of the Temple of Lord Jagannath at Puri to the Committee. The Chairman remained. It was found that the superintendence of the Temple was not a property. It carried no beneficial interest or enjoyment of the property with it. The right was not acquired by the State. The whole of the right to manage the Temple was extinguished and in its place another body for the purpose of administration of the properties of the Temple was created. Such process cannot be said to constitute the acquisition or extinguishment of office or the vesting of the right in such persons holding that office.

Cy Pres Doctrine

‘Cy   pres’ doctrine conveys the concept of ‘following as nearly as possible the intention of the donor’.[44]It is applied by courts when general intention of charity viewed by the founder cannot be carried into effect, for impossibility or impracticability.It is based on the principle that the court is the protector of all charities.[45]  It is an established principle of equity jurisprudence that a trust never fails even if there is no trustee.[46]

Invoking this doctrine the court will apply the Trust to some other charitable purpose ‘as nearly as possible’[47]Where a clear charitable intention is expressed by the founder of a trust and also the mode, if the mode becomes in-executable, the law will substitute another mode, cy-pres, ie., as near as possible to the mode specified by the donor; so that the charitable intention will not be permitted to fail.[48] It is held in Ironmonger’s Co. Vs. AG[49] and Re Cunningham[50] that this doctrine is applied not only to the affairs of trusts subsequent to their formation, but also to the trusts execution of which is rendered, initially itself, impossible or impracticable.  

This doctrine is applied by the Courts in England to administer a charitable trust of which the particular mode of application has not been defined. Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode.[51]

Besides physical impossibility, becoming the trust valueless, owing to attendant circumstances, also invites application of cy pres doctrine[52]. When a fund is conditionally given to charity, and the condition is not fulfilled, application of cy pres doctrine is not attracted for there is no complete dedication.[53]Cy pres doctrine is not applied in a case where intention of the founder is opposed to public policy[54].

Halsbury’s Laws of England reads:

• “The cy-pres doctrine. Where a clear charitable intention is expressed, it will not be permitted to fail because the mode, if specified, cannot be executed, but the law will substitute another mode cy-pres, that is, as near as possible to the mode specified by the donor.
• An application cy-pres results from the exercise of the court’s ordinary jurisdiction to administer a charitable trust of which the particular mode of application has not been defined by the donor. Where he has in fact prescribed a particular mode of application and that mode is incapable of being performed, but he had a charitable intention which transcended the particular mode of application prescribed, the court, in the exercise of this jurisdiction, can carry out the charitable intention as though the particular direction had not been expressed at all.
• However, where the particular mode of application prescribed by the donor was the essence of his intention, which may be shown by a condition or by particularity of language, and that mode is incapable of being performed, there is nothing left upon which the court can found its jurisdiction, so that in such circumstances the court has no power to direct any other charitable application in place of that which has failed.
• Where the particular mode of application does not exhaust a gift, these principles apply to the surplus.
• There can be no question under English law of a cy pres application of property subject to trusts which are not charitable in law.”[55]

When it is found by the court that the particular mode of charity, indicated by the donor, cannot be carried out for impossibility or impracticability, the court will execute and accomplish the donor’s intention applying ‘cy pres’ doctrine.  The court will not allow to fail a validly created trust, or its objects of foundation. In Ratilal Vs. State of Bombay[56] it is held by our Apex Court as under:

• “When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part, or where there is a surplus left after exhausting the purposes specified by the settler the Court would not when there is a general charitable intention expressed by the settler, allow the trust to fail but would execute it ‘Cy Pres’, that is to say, in some way as nearly as possible to that which the author of the trust intended. In such cases, it cannot be disputed that the Court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent.”

The beneficiaries can enforce the trust. Once a trust is created the property does not revert to the settlor or his heirs.[57]But, in Vadivelu Mudaliar Vs.Kuppuswamy Mudaliar[58]  it has been held that when all the trustees fail to administer the trust or repudiate trust property dedicated to the trust would re-vest in the donor or his legal representatives; and it is only when the legal representatives are not available or do not take charge of the trust for some reason or the other, it will be that the Court to interfere for the purpose of appointing of trustee or trustees for the administration of trust.

The essential conditions to attract the application of the Cy Presdoctrine are:

• (i) the donor (rather the testator) must clearly evidence a general intention of charity when the particular charitable disposition cannot be carried into effect, the Court, in order that the general charitable intention may not be disappointed, makes a Cy Presapplication of the fund and applies it to a purpose which coincides as nearly as possible with the object that has failed;
• (ii) there must be a failure of the particular object of charity as specified by the testator, or there must be a surplus left after satisfying the particular purpose;
• (iii) the court should choose such objects as are akin to the object that had failed;
• (iv) the gift or trust must be by Will and not by a deed inter vivos (by case law).[59]

Relevance of Common Law in Affairs of Churches

The Supreme Court held in Most Rev. PMA Metropolitan Vs.  Moran Mar Marthoma[60] as under:

• “The jurisdiction of courts depends either on statute or on common law. The jurisdiction is always local and in absence of any statutory provision the cognizance of such dispute has to be taken either by a hierarchy of ecclesiastical courts established in the country where the religious institutions are situated or by a statutory law framed by Parliament. Admittedly no law in respect of Christian churches has been framed, therefore, there is no statutory law. Consequently any dispute in respect of religious office in respect of Christians is also cognizable by the civil court. The submission that the Christians stand on a different footing than Hindus and Buddhists, need not be discussed or elaborated. Suffice it to say that religion of Christians, Hindus, Muslims, Sikhs, Buddhists, Jains or Parsees may be different but they are all citizens of one country which provides one and only one forum that is the civil court for adjudication of their rights, civil or of civil nature.”

Church Tribunal – Authority

It is further held in Most Rev. PMA Metropolitan Vs.  Moran Mar Marthoma[61] as under:

• “In Long Vs.  Bishop of Cape Town where the Bishop held an ecclesiastical court for proceeding against the appellant who was authorised to perform ecclesiastical duties in a parish was held as coram non judice as he had no authority to hold an ecclesiastical court. The court held that where no church was established by law it was in the same situation as any religious body, therefore, if any tribunal was constituted by such body which was not court then its decision would be binding only if it was exercised within the scope of the authority.
• In Dame Henriette Brown Vs. Les Cure Et Marguilliers De L’oeuvre Et Fabrique De Notre Dame De Motrea[62], the Privy council while following the decision in Long[63] held that where a church was merely a private and voluntary religious Society resting only upon a consensual basis courts of justice were still bound when due complaint was made that a member of the Society was injured in any manner of a mixed spiritual and temporal character to inquire into the laws and rules of the tribunal or authority which inflicted the alleged injury and ascertain whether the act complained of was law and discipline of the church and whether the sentence was justifiably pronounced by a competent authority. The decision in Longhas been followed in this country in AnadravBhikajiphadke Vs. Shankar DajiCharya[64] where certain persons brought a suit that their right of worship in the sanctuary of a temple was being infringed, it was held that the right of exclusive worship of an idol at particular place set up by a caste was civil right.”

Court Interference in Faith and ReligiousMatters: Cognisable by Civil Court

It was contented in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma[65] that various decisions[66] indicate that Explanation 1 to Section 9 embraced questions relating to the religious faith, doctrine and belief and saved only those suits where the right to property or to an office was contested. Sahai, J. observed that any dispute in respect of religious office is cognisable by the civil court. Sahai J. observed as under:

• “The jurisdiction of courts depends either on statute or on common law. The jurisdiction is always local and in absence of any statutory provision the cognizance of such dispute has to be taken either by a hierarchy of ecclesiastical courts established in the country where the religious institutions are situated or by a statutory law framed by the Parliament. Admittedly no law in respect of Christian Churches has been framed, therefore, there is no statutory law. Consequently any dispute in respect of religious office in respect of Christians is also cognisable by the civil court.”

Private Trust: Settlement of Scheme

Section 92 CPC will not apply to private trusts; and, suits relating to religious[67] private trusts are outside the purview of the Indian Trusts Act, 1882. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.[68] In Thenappa Chettiar Vs.Karuppan Chettiar[69], the Supreme Court held that even in the case of a private trust, a suit can be brought by any person interested in the proper administration of the endowment including that for settlement of a scheme.

Beneficiaries can Invoke Jurisdiction of Courts to Enforce Trust

A Trust Shall Not Fail For Want of a Trustee

It is an established principle of equity jurisprudence that a trust never fails even if there is no trustee.[70] The beneficiaries can enforce the trust. Dr. BK Mukherjea, J. ‘on The Hindu Law of Religious and Charitable Trusts’ reads as under:

• “The trust itself does not fail. …. The property does not revert to the representatives or the heirs of the settlor testator who has already divested himself of the title and interest in the property by creating a valid and complete trust. ….. That is, the beneficiaries can enforce it, or the object of the trust can be enforced where beneficiaries are not capable of suing”[71]

Under Sec. 59 of the Indian Trusts Act, 1882, where no trustees are appointed or all the trustees die, disclaim or are discharged, or where for any other reason the execution of a Trust by the trustee is or becomes impracticable, the beneficiary may institute a suit for the execution of the Trust and the Trust shall, so far as may be possible, be executed by the Court until the appointment of a trustee or new trustee.[72]  It is clear that this principle is adopted by Mukherjea, J. in the case of public trust also.

In Thangachi Nachial Vs.  Ahmed Hussain Malumiar[73] it has been observed by the Madras High Court that the beneficiary’s right to sue embodied in Section 59 of the Indian Trusts Act, 1882 was based on the principle that ‘a Trust shall not fail for want of a trustee’. It has been held in this case that the beneficiary of the trust in respect of a Muhammadan Wakf, may (without having recourse to Order 1 Rule 8 of CPC and without suing in a representative capacity on behalf of the other beneficiaries) sue for declaration that the property were the subject of the trust and for recovery of possession of property wrongfully alienated by the trustee.

Fundamental Principles Cannot be Varied

The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created.[74]This principle in Milligan Vs. Mitchel,[75]Atttorney General Vs. Anderson[76] and Free Church of England Vs. Overtoun[77]was referred to in PrasannaVenkitesa Rao Vs. Srinivasa Rao.[78]

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[1]      C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296: Narayan Krishnaji Vs. Anjuman E Islamia:  AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; SubramoniaPillai Chellam Pillai Vs. Subramonia Pillai Chathan Pillai: AIR 1953 TC 198;  M.G. Narayanaswami Naidu Vs. M. Balasundaram Naidu: AIR 1953 Mad 750.

[2] Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt: AIR 1954 SC 282.

[3] Fifth Edition, page 404.

[4] Also see: Joint Commissioner Hindu Religious And Charitable Endowments Vs. Jayaraman: AIR 2006 SC 104

[5]      (1874) 1 Ind App 209 at 233;  See also Dr. B.K. Mukherjea: Hindu Law of Religious and Charitable Trusts (Fifth Edition, pages 404).

[6]      See also Dr. BK Mukherjea: Hindu Law of Religious and Charitable Trusts (Fifth Edition, page 404). M Siddiq Vs.Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1.

[7]      VII Edition, page 294

[8]      See history: Mahant Ram Saroop Dasji Vs. SP Sahi: AIR 1959 SC 951;  Commissioner of Income Tax Vs. Jogendra Nath Naskar: AIR 1965 Cal  570; Kidangazhi Manakkal Narayanan Nambudiripad Vs. State of Madras: AIR 1954 Mad 385; C.K. Rajan Vs. Guruvayoor Devaswom Managing Committee : AIR 1994 Ker 179.

[9]      ChHoshiar Singh Mann Vs. Charan Singh: ILR  2009-19Dlh 265 ; See also:Thenappa Chattier Vs. Kuruppan Chhietier: AIR 1968 SC 915; I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337. 

[10]   C.K. Rajan Vs. Guruvayoor Devaswom Managing Committee: .AIR 1994 Ker 179. [Appeal Judgment: Guruvayoor Devaswom Managing Committee Vs. C.K. Rajan: AIR 2004 SC 561: (2003) 7 SCC 546].  C  Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915 ,     ChHoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265,      I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337,       Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309.

[11]   Haleema Vs. High Court Of Kerala: ILR 2011-1Ker 50: 2011-1 KerLT 134, Awadesh Kumar Vs. Rajendra Prasad Sharma: BLJ 1996-2 423: 1997-1BLJR 126 , C Chikka Venkatappa Vs. D Hanumanthappa: 1970-1 MysLJ 296, Narayan Krishnaji Vs. Anjuman Eislamia: AIR1952 Kar 14: ILR 1952Kar  2, Hamumiya Bachumita Vs. Mehdihusen Gulamhusen: 1978 GLR  661, Lallubhai Girdharlal Parikh Vs. Acharya Vrijbhushanlalji: AIR 1967 Guj 280, The Breach Candy Bath Trust. Vs. Dipesh Mehta : 2015-6 AIR-BOMR 709, [12]   AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC  3162. Referred to in: Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744.

[13]   Subramannaiya Vs. Abbinava: AIR  1940 Mad. 617; Quoted in: M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case): 2020-1 SCC 1;  Sankaranarayanan Vs. Shri Poovananatha: AIR  1949 Mad.721; Parshvanath Jain Temple Vs. LRs of Prem Dass: 2009-3 RCR(Civil) 133

[14]   Nadigar Sangham Trust Vs. S. Murugan Poochi: 2013-1 MLJ 433: 2012-6 CTC 721; Imayam Trust Vs. Balakumar: CTC 2015 3 654: : 2015-2 MadLW 235.

[15]   Rajagopal v. Balachandran: 2002 2 CTC 527; Imayam Trust Vs. Balakumar: CTC 2015 3 654: : 2015-2 MadLW 235.

[16]   Doongarsee Shyamji Vs. Tribhuvan Das: AIR 1947 All 375. Referred to in  Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73.

[17]   (1986) 3 SCC 391.

[18] AIR  1940 Mad. 617

[19] Quoted in Sankaranarayanan Vs. Shri Poovananatha: AIR  1949 Mad.721 and  Parshvanath Jain Temple Vs. LRs of Prem Dass: 2009-3-RCR(CIVIL) 133

[20] AIR 1974 Del. 228; See also: Avoch Thevar Vs. Chummar: AIR 1957 Ker. 171; In Re Birla Jankalyan Trust: AIR 1971 Cal. 290; In Re Dhanalat, AIR 1975 Cal. 67.

[21]    Volume I (Page 463).

[22]    Quoted in YogendraNathNaskar Vs. Commr of IT Calcutta: AIR 1969 SC 1089.

[23]    28^th Edition, pages 210 and 211

[24]    CK RajanVs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179. [Appeal Judgment: Guruvayoor Devaswom Managing Committee Vs. CK Rajan: AIR 2004 SC 561: AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC 3162. Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744. Subramannaiya Vs. Abbinava: AIR  1940 Mad. 617. Quoted in: Sankaranarayanan Vs. Shri Poovananatha: AIR  1949 Mad.721, Parshvanath Jain Temple Vs. L.Rs of Prem Dass: 2009-3-RCR(CIVIL) 13),  Fakhuruddin Vs. Mohammad Rafiq: AIR  1916 All 115 (PC);  C  Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; Sridhar Vs. Shri Jagan Nath Temple, AIR 1976 SC 1860; Yogendra Nath Naskar Vs. Commr IT Calcutta: AIR 1969 SC 1089. ChHoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265;  I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337; Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309.

[25]    Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915,

[26]    AG Vs. Pearson: (1817) 3 Mer 353; Referred to in Varghese Vs. St. Peters and St. Pauls: (2017) 15 SCC 333; Fakir Mohamed Abdul Razak Vs. Charity Commissioner Bombay: AIR 1976 Bom 304; Narasimhiah Vs. YH Venkataramanappa: AIR  1976Kar 43; Sobhanadreswara Rice Mill Vs. Brahmachari Bavaji Mutt: AIR  1973 AP 292. Subramania Gurukkal Vs. Abhinava Poornapriya Asrinivasa Rao Sahib: AIR 1940 Mad 617; Mohideen Khan Vs. Ganikhan: AIR  1956 AP 19. See with respect to Educational Institution: KK Saksena  Vs. International Commission on Irrigation and Drainage: 2015-4 SCC 670.

[27]    ChHoshiar Singh Mann Vs. Charan Singh: ILR 2009-19Dlh 265, See also Thenappa Chattier Vs. Kuruppan Chhietier: AIR 1968 SC 915; I Nelson Vs. Kallayam Pastorate:  AIR 2007 SC 1337.  In In-Re, Man Singh: AIR 1974 Del. 228.

[28]    RambakeshwarDevasthan Trust Vs. President PurohitSangh: AIR  2012 SC 139.

[29]    AIR1946 PC 34.

[30]    Referred to in: Varghese Vs. St. Peters and St. Pauls Syrian Orthodox Church: (2017) 15 SCC 333; Narasimhiah Vs. YH Venkataramanappa: AIR 1976 Kar 43.

[31]    AIR  1994 Ker 179.

[32]    Fifth Edition, pages 411 and 412

[33] (1853) 51 ER 1103

[34]    (1888) ILR 12 Bom 247

[35]    Quoted in CK Rajan Vs. State of Kerala: AIR  1994 Ker 179

[36]    AIR 1917 Mad 551; ILR 39 Mad 700: citing Attorney General Vs. Brodie, (1846) 4 Moo Ind App 190 Maharanee Shibessoree Vs. Mothooranath, (1869-70) 13 Moo Ind App 270.

[37]    Referred to in CK Rajan Vs. State of Kerala: AIR  1994 Ker 179,

[38]    Doongarsee Shyamji Vs. Tribhuvan Das: AIR 1947 All 375. Referred to in Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73.

[39]    2013(4) Ker LT 283.

[40]    Rotopacking Materials Industry Vs. Ravider Kumar Chopra: 2003(6) BCR 6; Smt. Parul Bala Roy Vs. Srinibash Chowmal: AIR 1952 Cal 364; Referred to in: Arun Kumar Mitra Vs. Gorachand Saheb Sekh Abdul: AIR 2005 Cal 178.

[41]    AIR 2007 SC 1337

[42]    AIR 1995 SC 2001.

[43]AIR  1964 SC 1501

[44]    AbidHatim Merchant Vs. Janab Salebhai Saheb Shaifuddin AIR 2000  SC 899: Commissioner of Income Tax Kanpur Vs. Kamla Town Trust: AIR 1996 SC  620;  NS Rajabathar Mudaliar Vs. M.S. Vadivelu Mudaliar, AIR 1970 SC 1839;

[45]    C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar14 .

[46] Yelandau Arasikere Deshikendra Sammthana  Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[47]    Abid Hatim Merchant Vs. Janab Salebhai Saheb Shaifuddin:  AIR 2000  SC 899: Commissioner of Income Tax Kanpur Vs. Kamla Town Trust: AIR 1996 SC  620;  NS Rajabathar Mudaliar Vs. Vadivelu Mudaliar, AIR 1970 SC 1839; In Re Man Singh and Others, AIR 1974 Del. 228

[48] Union of India Vs. Mool Chand Khairati Ram Trust: AIR 2018 SC 5426

[49]    (1844) 10 Cl& F 908.

[50]    (1914) 1 Ch 427.

[51]    Union of India Vs. Mool Chand Khairati Ram Trust: (2018) 8 SCC 321.

[52]    Hormusji Franji Warden, ILR 32  B. 214.

[53] Chamberlane Vs. Brochett: LR 8 Ch. 206; Santana Roy Vs. AG ILR 45 Cal. 1.

[54]    Tudor on Charities,  5^thEdn, P. 153.

[55]    Quoted in Union of India Vs. Mool Chand Khairati Ram Trust: (2018) 8 SCC 321.

[56] AIR 1954 SC 388

[57] Yelandau Arasikere  Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323. Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11; Laxmi Ammal Vs. Sun Life Assurance Co., Canada AIR 1934 Mad 264; Kumaraswamy Goundan Vs. Planisamy Goundan: AIR 1938 Mad 668.

[58]    1972 (1) Mad LJ 265.

[59]    Gedela Satchidananda Murthy Vs. Dy.  Commnr Endnts. Deptt A P: AIR 2007 SC 1917

[60]    AIR 1995 SC 2001.

[61]    AIR 1995 SC 2001.

[62]    1874-75 (6) PC 157

[63]    Long  Vs. Bishop of Capetown,  1863 (1) Moore PCC NS 411

[64]    ILR 7 Bombay 323

[65]    AIR 1995 SC 2001

[66]    Sardar Syedna Tahar Saifuddin Saheb Vs. The State of Bombay, 1962 Supp. 2 SCR 496; Uqamsingh & Mishramal Vs. Kesrimal: 1971(2) SCR 836; Thiruvenkata Ramanuja Vs. Prathivathi Bhayankaram:  AIR 1947 PC 53; M. Appadorai Ayyangar Vs. P.B. Annanqarachariar: AIR 1939 Mad. 102; Kattalai Michael Pillai  Vs. J.M. Barthe: AIR 1917 Mad. 431; E.C. Kent Vs. EEL Kent: AIR 1926 Madras 59;  Sri Sinna Ramanuja Jeer Vs. Sri Ranga Ramanuja Jeer:1962 (2) SCR 509.

[67]    See Sec. 1.

[68]    Cheriyathu Vs. Parameswaran Namboodiripad: 1953 Ker LT 125, Also 1953 Ker LT 117; AIR1922 P. C. 253 A I R 1925 P C 139.

[69] AIR 1968 SC 915.

[70]    Yelandau Arasikere Deshikendra Sammthana Vs.Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.

[71] Quoted in: Yelandau Arasikere Deshikendra Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323. See also: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.

[72]    Laxmi Ammal Vs. Sun Life Assurance Co., Canada AIR 1934 Mad 264; Kumaraswamy Goundan Vs. Planisamy Goundan: AIR 1938 Mad 668.

[73]    AIR 1957 Mad 194, Relying on Maulvi Muhammad Fahimul Haq  Vs. Jagat Ballay Ghosh AIR 1923 Pat 475.

[74] Pragji Savji Vaja  Vs. Chhotalal Narsidas Parmar: AIR 2014-3 Bom R 211: 2013-6 BCR 72.

[75]    40 ER 852.

[76]    (1888) 57 LJ Ch 543

[77]    (1904) AC 515:

[78]    AIR 1931 Mad. 12

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