C. C Baby v. Steward Co Ltd — 1990 DIGILAW 275 (KER)

JUDGMENT K.P. Balanarayana Marar, J. 1. Appellants filed O. P. 25/1982 before District Court, Trichur for grant of leave under S.92 of the C. P. C. to file a suit relating to a public religious and charitable trust. The court refused to grant leave. Hence the appeal. 2. Appellants are members of a religious denomination known as "Brethren Sect". One V. Nagel. a foreign missionary, came to this country during the close of the last century and was carrying on gospel work. He became a follower of the Brethren Assembly and organised units of that Assembly in Trichur, Kunnamkulam and other places Immovable properties were acquired by him. It is alleged in the petition that the properties were acquired by him as a missionary and that they were utilised for the benefit of the Brethren Assembly. Those properties had attained the characteristics of a charitable trust. Nagel left India and the properties were managed by Mrs. Nagel. She transferred "the properties to the 1st respondent who is a limited company incorporated in England. First respondent in turn transferred the properties in favour ' of an association represented by respondents 2 to 4. Portions of the properties are alleged to have been assigned by an agent of 1st respondent in favour of 8th respondent. A big bungalow situated in the property at Trichur is occupied by the 5th respondent on the strength of some entrustment alleged to have been made by respondents 1 to 4. He is also alleged to have been negotiating for sale of portions of the property situated at Trichur. It appears that Mrs. Nagel had executed a sale deed in favour of third parties. It is alleged that the sale deed is void and inoperative. The transfer in favour of respondents 2 to, 4 by 1st respondent is also void. Respondents 1 to 4 are not legally constituted trustees. Even if they are trustees, they are guilty of breach of trust. Petitioners therefore sought removal of these respondents from the office of the trustees. In case they are found to be legally constituted trustees, petitioners seek a direction to those respondents ' to render accounts of the profits from the suit properties and also to settle a scheme for proper management. The suits has been filed by two persons representing the Brethren Assembly and the petitioner was filed by them for leave to file the suit. 3. The suits has been filed by two persons representing the Brethren Assembly and the petitioner was filed by them for leave to file the suit. 3. A counter statement was filed by 5th respondent for himself and on behalf of respondents 1 to 4. He claimed to be the power-of- attorney holder of respondents 1 to 4. He contended that Stewards Association represented by defendants 2 and 3 is a society registered under the Societies Registration Act and that the properties belonging to the 1st respondent had been transferred to them. The properties possessed by the society cannot be said to be the property of the trust The properties originally belonged to .Nagel, a German citizen. He acquiredthe properties with his own funds. First respondent was rendering financial assistance to Nagel. Though he came to this country as a missionary of the Basel Mission, he dissociated with that, mission and came into contact with Brethren Groups in Europe and especially the Brethren Groups in Kunnamkulam and Trichur. Nagel had no intention to create a public trust in respect of these properties. After he left India, his wife on the strength of his power-of-attorney transferred the properties in favour of first respondent. The intention of Nagel was chat the properties should beutilised for gospel work. He did not intend that they should be used by the Brethren Group. Members of that group were permitted by Nagel to conduct prayers in the hall in item No. 3 of the plaint scheduleItem 2 was allowed to be used as a cemetery. Nagel did not function as a trustee, nor did he receive any assistance from the members of the Brethren Group. He was the sole owner of these properties and the transfer in favour of 1st respondent was made by Mrs. Nagel as if Nagel was the owner. The Brethren Assembly has no interest in the properties and no trust has been created in favour of that Assembly or for its benefit. Petitioners have no interest in the properties. Respondents 11 to 13 are stated to be kudikidappukars to whom portions of properties had beenassigned by the Association. Respondents 6 and 7 have entered into an agreement to transfer 90 cents of land in item No. 3 to the 8th respondent in pursuance to a resolution passed by 2nd respondent society. Petitioners have no interest in the properties. Respondents 11 to 13 are stated to be kudikidappukars to whom portions of properties had beenassigned by the Association. Respondents 6 and 7 have entered into an agreement to transfer 90 cents of land in item No. 3 to the 8th respondent in pursuance to a resolution passed by 2nd respondent society. Item No. 1 is alleged to be in the possession and management of the 1st respondent and items 2 and 3 are claimed by 2nd respondent exclusively. The claim of Brethren sect over these properties was denied and the request for grant of leave was opposed by 5th respondent. 4. First petitioner was examined as P. W. 1 ; documents were produced on both sides. The court below refused the request of petitioners for the reason that they have not succeeded in establishing that a trust has been created for public purposes of a charitable or religious nature and for further reason that 2nd respondent is a registered society governed by the memorandum of association and byelaws and that it is not open to the petitioner to invoke S.92 C. P. C. to institute a suit against that society. That order is assailed in this appeal. 5. It is urged on behalf of the appellants that the District Court has not correctly appreciated the nature and scope of enquiry in a proceeding where leave of the court to institute a suit is prayed for. The application for leave has to be decided on the basis of the allegations in the plaint, according to counsel for appellants. It is also his contention that the court below has failed to appreciate the significance of the recitals contained in the documents which would establish creation of a trust in favour of the religious denomination known as "Brethren Sect". The District Court has not taken note of the fact that the properties were used by the missionaries and evangelists of the community solely for religious and charitable purposes of a public nature, argues the counsel. 6. On the other hand, it is contended by learned counsel for respondents that petitioners have failed to establish the creation of a public trust by the transfer of properties in favour of 1st respondent by Mrs. 6. On the other hand, it is contended by learned counsel for respondents that petitioners have failed to establish the creation of a public trust by the transfer of properties in favour of 1st respondent by Mrs. Nagel, and that petitioners who are not in any way interested in those properties are not competent to request the court for leave to file a suit under S.92. It is the contention that the properties belonged exclusively to Nagel and the transfer in favour of the 1st respondent was for their exclusive enjoyment, the income to be utilised for gospel work. None of the ingredients of S.92 C.P.C. is therefore satisfied in this case, according to counsel. Counsel argued that the order is justified. 7. In order to appreciate the contentions raised on both sides it is necessary to refer to S.92 C. P. C. and understand the scope and ambit of the grant or refusal of leave contemplated thereunder. None of the ingredients of S.92 C.P.C. is therefore satisfied in this case, according to counsel. Counsel argued that the order is justified. 7. In order to appreciate the contentions raised on both sides it is necessary to refer to S.92 C. P. C. and understand the scope and ambit of the grant or refusal of leave contemplated thereunder. S.92 (1) reads: "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; (d) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (e) directing accounts and inquiries; (f) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (g) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (h) settling of a scheme; or (i) granting such further or other relief as the nature of the case may require." In order to obtain in the leave of the court to institute a suit under S.12(1), the following conditions are to be fulfilled:- i. existence of trust for public purposes of religious or charitable nature; ii. the suit must b3 to enforce public rights instituted in the interest of the public or in the interest of the trust and not in the interest of the plaintiffs individually; iii. plaintiffs must have interest in the trust; iv. the suit must b3 to enforce public rights instituted in the interest of the public or in the interest of the trust and not in the interest of the plaintiffs individually; iii. plaintiffs must have interest in the trust; iv. the suit must be for an alleged breach of trust or based on circumstances necessitating the direction of the court for the administration of the trust; and v. the relief must fall within one or more of the clauses (a) to (h). 8. Before the amendment of C.P.C. by Act 104/1976, a suit under S.92 may be instituted either by the Advocate General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General. The necessity of obtaining the sanction of the Advocate General earlier and now the leave of the court has been imposed with a view to prevent indefinite number of reckless and harassing suits being brought against the trustees. The words "leave of the court" have been substituted for "consent in writing of the Advocate General" by the amendment of 1976. The reason for the substitution as stated by the Law Commission is "Obtaining leave "of the Advocate General takes time, and the consideration which he takes into account can be taken into account by the court as well. Since the jurisdiction under the section is vested in the particular court of original jurisdiction, it can be expected that discretion to grant leave under the amended section will be exercised in a responsible manner". Thus obtaining the leave of the court is a condition precedent for institution of the suit and before granting leave the court has to satisfy itself that the conditions mentioned in sec 92 (1) are fulfilled. 9. Why is it that a suit under S.92 shall be filed only after obtaining the leave of the court? The answer can only be that the court has to consider the interests of the trust and to ensure that the trustees of public charities are not put to unnecessary harassment by filing vexatious suits by parties who have ulterior motives. This is therefore in the nature of a protection to the trustees. The answer can only be that the court has to consider the interests of the trust and to ensure that the trustees of public charities are not put to unnecessary harassment by filing vexatious suits by parties who have ulterior motives. This is therefore in the nature of a protection to the trustees. What is required under this section is only to see whether petitioners were able to establish a prima facie case and fulfill the conditions stipulated in S.92 (1) C P. C. That is why some of the courts have gone to the extent of saying that an order granting leave is administrative in nature and that reasons need not be given in the order granting leave. The grievance of appellants is that the court below has proceeded to decide the entire issue at the threshold itself rather than ascertaining whether there are sufficient grounds to grant leave. 10. It is contended by learned counsel for appellants that the court below has only to satisfy itself that there is a prima facie case. Learned counsel has cited the decision in Madappa v. Mahanthadevaru (AIR 1966 S C 878) where it was held : "The main purpose of S 92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be . filed either by the Advocate General or two or more persons having an interest in the trust with the consent in writing of the Advocate General. The object is that before the Advocate General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court". The object and scope of S.92 (1) before the amendment of 1976 came up for consideration in the Full Bench decision of this Court in I Simon v. Advocate General ( 1975 KLT 78 (F. B.) ). The object and scope of S.92 (1) before the amendment of 1976 came up for consideration in the Full Bench decision of this Court in I Simon v. Advocate General ( 1975 KLT 78 (F. B.) ). It was held that the object is that before Advocate General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity of obtaining directions of the court that the persons who institute the suit are solvent persons. that they are really interested in the trust and are not those whose motives are impure. The Full Bench further held that this satisfaction cannot be characterised as a purely subjective satisfaction whereas the Advocate General should act objectively. Gopalan Nambiyar J. (as he then was) in a concurrent judgment held thus : "It seems to me he has to do no more than find out whether the applicants have made out a prima facie case for investigation by the court in which the suit is proposed to be filed. He does not decide the rights of the parties one way or the other, but only considers the question whether, on the facts and circumstances appearing, the matter is one in respect of which he can give his consent to the initiation of the action." 11. Both these decisions were rendered prior to the amendment of C.P.C. by which the powers conferred on the Advocate General to grant consent to file a suit were taken away and conferred on the court. A question arises as to whether the decisions rendered prior to the amendment can be relied on while considering the grant of leave by the court since the date of amendment. A Division Bench of this Court in the decision in Mathew v. Thomas ( 1982 KLT 493 ) formulated the procedure for the grant of leave by the court as follows:- "i) while exercising its power under S.92(l) the Court will be guided by the principles laid down by judicial decisions to regulate the power of the Advocate - General under the sub-section ii) Along with the petition for leave the plaintiffs - petitioner should produce in Court the plaint for the Court's perusal to enable it to pass a proper order under S.92 (1). This does not preclude the Court from requiring the production of any other record necessary for a proper decision. iii) The Court can, if .it is so satisfied, grant the leave without issuing notice to the respondents defendants or hearing them. iv) S.92 (1) does not provide for the grant of interim leave to the plaintiffs. What it contemplates is only the grant of leave and as a corollary the refusal of leave v) On the terms of S.92 (1) the leave is to precede the institution of the suit as the relevant words are "two or more persons............ having obtained the leave of the Court may institute a suit." 12. There is thus no change in law by the amendment of S.92 and after the power has been conferred on the Court to grant leave to file suit. This Court in Mathew's case (supra) has laid down that the court will be guided by the principles laid down by judicial decisions to regulate the power of the Advocate General under the sub-section while exercising its power under S.92(1) of the Code. That being so, it is clear beyond doubt that a final decision on all the issues is not contemplated at the stage when the court was considering whether leave to file suit has to be granted or not. In other words, the court has only to satisfy itself that there is a prima facie case either of breach of trust or of the necessity of obtaining directions of the court. 13. Learned counsel for respondents strenuously contends that the basic foundation of Sec.92 is not present in this case since the existence of a public trust has not been established by petitioners It cannot be disputed that a suit under S.92 is a suit of a special nature which pre-supposes the existence of a public trust of a religious or charitable nature. Such a suit can proceed only on the allegation that there was a breach of trust or that the direction of the court is necessary for the administration of the trust. But S.92 is not confined to the case of admitted trusts alone. It was held in the decision in Maker Husein v. Alimahomed (AIR 1934 Bombay 257) that in a suit under S.92 the court can determine the nature of the institution if there is dispute. But S.92 is not confined to the case of admitted trusts alone. It was held in the decision in Maker Husein v. Alimahomed (AIR 1934 Bombay 257) that in a suit under S.92 the court can determine the nature of the institution if there is dispute. Public user for a long period without objection is a strong evidence of public trust. The Bombay High Court in Dhoribhai v. Pragdasji (AIR 1938 Bombay 471) held that when properties have been acquired by a Sadhu and have descended from chela to chela, there is a presumption that they have been dedicated to religious uses. In that case the authors of the trust were Kuberdas and his successors whose acts and declarations showed that the properties acquired by them were to be used not for their own purposes, but for the benefit of the institution. The purpose of the trust is the maintenance of the institution as the means of perpetuating the teachings of its founder. The beneficiaries are primarily the followers of the panth and in addition all Hindus who by the custom of the institution from the beginning have been permitted to use the temple as a public temple. It was held that the ownership of these properties is restricted by the obligation to maintain the institution for purposes which can only be regarded as public charitable purposes within the meaning of S.92. The existence of a trust either express or implied is therefore necessary for maintaining an action under S.92 C. P. C. 14. In order to enable petitioners to obtain leave of court it has to be shown that the trust is of a public nature. The distinction between a private and a public trust has been considered in detail by I the Supreme Court in Deoki Nandan v. Murlidhar ( AIR 1957 SC 133 ). It was held that in the case of a private trust the beneficiaries are persons ascertained or capable of being ascertained whereas in the case of a public trust the beneficiaries constitute a body which is incapable of ascertainment. Where a property is dedicated for the worship of a family idol, it is a private endowment and persons entitled to worship are only the members of the family. Where a property is dedicated for the worship of a family idol, it is a private endowment and persons entitled to worship are only the members of the family. But in a case where the beneficiaries are not members of a family, then the endowment can only be regarded as a public and intended to benefit the general body of worshippers The question whether there will be any difference in case the endowment is in favour of a sect of persons of a certain, religious persuasion came up for consideration before the Supreme Court in Mahant Ram Saroop Dasji v. S. P. Sahi (AIR. 1959 SC 951). It was held that the fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the . matter and would not make the trust a private trust. 15. The tests to see whether a temple or any institution of religious or charitable nature is a public or private one are: i) the origin of the temple or the institution; ii) the manner in which its affairs are managed; iii) the nature and extent of gifts received by it; iv) the rights exercised by devotees in regard to worship; and v) whether the public can have access to it as a matter of right. 16. As defined by Under bill in his Law Relating to Trust and Trusts, 13th Edn. a trust is an equitable obligation binding a person (who is called a trustee) to deal with property over which he has control (which is called the trust property) for the benefit of persons (who are called the beneficiaries or castuis quo trust) of whom he may himself be one and any one of whom may enforce the obligation. Any act or neglect on the part of a trustee which is not authorised or excused by the terms of the trust instrument or bye law is called a breach of trust. In order to create an express trust no technical expressions are necessary. It is sufficient if the settler evinces with reasonable certainty (a) an intention ' to create a trust, (b) the trust property, (c) the persons intended to be the beneficiaries, and (d) the purpose of the trust. In order to create an express trust no technical expressions are necessary. It is sufficient if the settler evinces with reasonable certainty (a) an intention ' to create a trust, (b) the trust property, (c) the persons intended to be the beneficiaries, and (d) the purpose of the trust. If these elements are present, a trust can be said to have been created. If the endowment is intended for public use, then it becomes a trust of a public nature. 17. While considering whether a trust is of a public nature or not for the purpose of granting leave under S.92 C. P. C , the court has to look into the allegations in the plaint. The Supreme Court in Charan Singh v. Darshan Singh ( AIR 1975 SC 371 ) has held thus: "It is well settled that the maintainability of the suit under S.92 of the Code depends upon the allegations in the plaint and does not fall for decisions with reference to the averments in the written statement." In an earlier decision reported in Swami Parmatmanand Saraswati v, Ramji Tripathi ( AIR 1974 SC 2141 ) it was held thus : "Where two or more persons interested in a trust bring a suit purporting to be under S.92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint".At the initial stage the court has only to look into the allegations in the plaint. If after taking evidence it is found out that the breach of trust has not been made out or that the trust is not of a public character in order to bring the suit under S.92 C P.C., then the suit purported to be one under that section has only to be dismissed. That is the reason why this Court in Saraswathi Pillai Mahavir v. Gopala Pillay ( 1987 (2) KLT 471 ) held that for the purpose of deciding whether leave should be granted or not, the court may have to consider the petition as well as the plaint. In short, the maintainability of the suit under S.92 depends upon the allegations in the plaint and not on the averments contained in the written statement. 18. In short, the maintainability of the suit under S.92 depends upon the allegations in the plaint and not on the averments contained in the written statement. 18. In the light of the principles enunciated in the foregoing paragraphs we have to see whether appellants were able to establish a prima facie case of the existence of a public trust and the requirements for the grant of one or other of the reliefs mentioned in that section. For the purpose of such consideration a few facts are necessary. 19. Plaint schedule consists of three items of properties of which first item is situated in Trichur and the other two items in Kunnamkulam. These properties were admittedly acquired in the name of Nagel, a foreign national. He is described in the documents as a missionary. He went back to Europe. His wife stayed back. She executed a gift deed in favour of 1st defendant as per Ext. A3 by which these properties were gifted to 1st defendant for the sole purpose of utilising the income for gospel work. The 1st defendant, who is a public limited company incorporated in England, was permitted to possess these properties and enjoy the same. A power-of-attorney is seen to have been granted by the company in favour of Mrs. Nagel as per Ext. B7 on the strength of which she had purported to assign a portion of item No. 1. The 1st defendant had executed another power-of-attorney in the year 1962 as per Ext. B6 in favour of one Donald. First defendant had made over these properties to 2nd defendant in 1973. Second defendant is described as Stewards' Association in India. The document was executed by the power-of-attorney holder of 1st defendant company. The gift by Mrs. Nagel in favour of 1st defendant is stated to be one in the nature of a trust created for the benefit of the Brethren Sect to which Nagel belonged. Though Nagel had come to this "country as a Basel Mission Missionary, he dissociated with that Mission and joined the Brethren Sect. It is the case of appellants that the properties were acquired by Nagel by utilising the funds which he had in his capacity as a missionary and that the same were utilised for the Brethren Sect. A prayer hall, a cemetery, orphanage etc. had been put up in these properties and used by the members of the sect. It is the case of appellants that the properties were acquired by Nagel by utilising the funds which he had in his capacity as a missionary and that the same were utilised for the Brethren Sect. A prayer hall, a cemetery, orphanage etc. had been put up in these properties and used by the members of the sect. The suit was necessitated on account of the attempt of the 2nd defendant to dispose of the properties as if they belonged to them exclusively. These documents are therefore to be perused in order to see whether there has been creation of a trust with respect of plaint schedule properties. 20. The specific contention of appellants is that Nagel himself was holding the properties as a trustee and had acquired these properties on behalf of the Brethren Sect. The gift dead Ext.A3 would show that the properties were acquired with the funds of Nagel himself. He might have come into possession of funds in his capacity as a missionary; but there is nothing on record to show that the funds utilised for the acquisition belonged to the Brethren sect. But Mrs. Nagel had purported to transfer all the rights of Nagel to 1st defendant in her capacity as his power-of-attorney holder and as per his permission. The document specifically states that the transfer was made for the purpose of gospel work . First defendant is a limited company, the registered office of which is in England. The objects for which the company was established as seen from the memorandum and articles of association, Ext.B2. art: (a) the advancement of religion in any manner which shall be charitable and in particular by the furtherance of the gospel of God and education of the Holy Scriptures, and (b) the relief of the poor. For the achievement of those objects the company can purchase, take on lease and acquire property and can also sell, let out, mortgage or dispose of such property. The company can also receive and take in, gift of money or other property for any of the objects of the company. It is therefore clear that 1st defendant is competent to purchase properties and sell the same, but that can only be in pursuance of the foregoing objects and not otherwise. The acquisition of the properties as per Ext. The company can also receive and take in, gift of money or other property for any of the objects of the company. It is therefore clear that 1st defendant is competent to purchase properties and sell the same, but that can only be in pursuance of the foregoing objects and not otherwise. The acquisition of the properties as per Ext. A3 was in accordance with this object and the intention of the donor is also the same. First defendant could therefore possess and enjoy the property only in accordance with the object of the gift viz gospel work. Even though the donee has been given all the rights which the donor had over the properties, the grant is for a specific purpose and the clause in the document conferring the donee with all the rights in the property will not enable them to act in derogation of the grant. Further more, 1st defendant company has been formed for specified objects viz. propagation of religion and relief of the poor. An absolute transfer cannot therefore be inferred in favour of 1st defendant. Then the question arises, whether a trust has been created in favour of 1st defendant. That depends upon the intention of the donor and the purpose for which the gift was made and the manner in which the properties were enjoyed by the donee. Prima facie it would appear that Mrs. Nagel intended a trust to be created for the purpose of gospel work which can only be a public trust of a religious nature. Though the document does not contain specific words thereof, there is sufficient indication to suggest that a trust was intended to be created. 21. By Ext. A4 1st defendant had made over their rights to 2nd defendant who is a registered society. That document is styled as a transfer of trust deed. First defendant, who is an international association, has purported to make over their rights over the properties in favour of 2nd defendant who is a domestic association. First defendant is described as a company functioning in England and other countries for a Christian association by name "Brethren". The transfer has been made in favour of 2nd defendant on behalf of the Christian association by name Brethren. The description of the transferor and the transferee in Ext. First defendant is described as a company functioning in England and other countries for a Christian association by name "Brethren". The transfer has been made in favour of 2nd defendant on behalf of the Christian association by name Brethren. The description of the transferor and the transferee in Ext. A4 would therefore suggest that defendants 1 and 2 belong to a sect of Christians known as Brethren. The parties to the document are mentioned as trustees functioning in different countries and belonging to Brethren sect. The transfer was necessitated for the sake of convenience in managing the properties. The document does not purport to be an out and out transfer whereas the rights of 1st defendant are seen to have been made over to another association of the same persuasion. The transferee was directed to possess these properties in trust for Stewards' Association in India. The transferee was given the right of enjoyment over these properties. On a reading of the various recitals contained in the document there is no difficulty in finding that the "transferor and the transferee understood the subject matter of the transaction to be trust properties. Learned counsel for respondents would contend that the nomenclature of the document is not the sole criterion to decide the nature of the transaction whereas all the recitals are to be taken together. Reference has already been made about the nomenclature and the recitals contained in the document. The transferee was no doubt given right to enjoy the properties, but such enjoyment can only be in accordance with the purpose for which the transfer was made. As observed earlier there is no transfer of rights whereas the rights were only made over for the purpose of enjoyment by 2nd defendant and that, too for the sake of convenience. There is sufficient indication in the document to suggest that the 1st defendant was possessing the properties not as absolute owners, but as trustees in pursuance to the objects for which the 1st defendant company was formed. Second defendant had taken over possession in their capacity as trustees, they being a Christian association of the same persuasion in this country. Learned counsel for appellants would also point out that a right of disposition has not been given either under Ext. A3 or under Ext. Second defendant had taken over possession in their capacity as trustees, they being a Christian association of the same persuasion in this country. Learned counsel for appellants would also point out that a right of disposition has not been given either under Ext. A3 or under Ext. A4, Even without such a recital a transferee can dispose of the property provided there has been an absolute transfer in his favour. But such a recital is usually incorporated in transfer deeds by the document writers. The non-incorporation of such a recital in those documents has got some relevance especially when absolute rights had not been granted either under Ext. A3 or under Ext. A4. It has therefore to be found that a trust was intended to be created by the execution of Ext. A3 which has been re-affirmed in Ext. A4. 22. Adv. Sri S. Narayanan Poti, counsel for respondents, has raised a contention that existence of a trust is a judicial issue and that the persons who are benefitted by the gospel work are not the beneficiaries under the trust. Persons who have filed the suit have no locus standi, according to him, for getting a scheme prepared. It is his contention that the liability of the transferee under Ext A3 is only to utilise the income for gospel work and in all other respects they have got absolute rights over the properties. According to him a right is not created in any class of beneficiaries. He would contend that the transfer was not in favour of Brethren Sect and as such appellants who claim to be members of that sect are not competent to file the suit. True, there is nothing in Ext. A3 to show that the transfer was intended for the benefit of the Brethren sect. But there is clear indication in Ext. A4 that the properties were possessed by the Brethren sect and they were made over to 2nd defendant in their capacity as the Brethren sect functioning in this country. Appellants had sought leave to file the suit claiming themselves to be members of the Brethren sect. It is their case that the prayer hall situated in the property and the cemetery were used by the members of that sect. An orphanage is conducted in the premises. There is a building for housing old enfeebled women. Appellants had sought leave to file the suit claiming themselves to be members of the Brethren sect. It is their case that the prayer hall situated in the property and the cemetery were used by the members of that sect. An orphanage is conducted in the premises. There is a building for housing old enfeebled women. These buildings and institutions are used by the members of the Brethren sect. Being members of that sect, appellants also are actual users of the properties. In that capacity they are also beneficiaries under the trust. They are therefore persons having sufficient interest in the trust properties and as such competent to request for leave of court to institute a suit. 23. Respondents have a contention that the properties were acquired by 2nd defendant who is a society registered under the Societies Registration Act and as such the properties are to be possessed and enjoyed in accordance with the bye laws of the society. The society has its own identity and can own properties, argues the counsel. A suit in the nature of one contemplated under sec 92 C. P. C. is therefore not maintainable against the society according to counsel. But here is a case where the society had acquired rights over the trust properties by virtue of a transfer in their name. A question arises whether the trust character of the properties will be lost on account of the transfer in favour of a society. In case the properties belonged to the trust originally, the transfer will not confer special rights on the society. They can own and possess the properties only with the incidence of the trust character. In this connection learned counsel for appellants has cited the decision in Kesava Panicker v. Damodara Panicker ( 1975 KLT 797 (F. B). That was a case where the entire community in a particular area took an active interest and contributed" funds for the purpose of creating 'a trust fund' for establishing a school. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench held: "If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character. So the High School buildings, the land, all appurtenances, furniture, equipment and all other properties are trust properties". The position here is more or less identical. The properties which belonged to a trust were transferred to a society. Such transfer could not change the character of the properties which had already been constituted as trust properties. 24. Learned counsel for respondents relies on the decision in 1970(1) Mysore L. J. 296 (Chikka Venkatappa v. Hanumanthappa). That was a case where a society registered under the Societies Registration Act collected funds from its members and put up a building to commemorate 25 years of its existence through a sub-committee. The sub-committee's accounts were accepted by the society at its general meeting. Some members of the society filed a suit under S.92. C P. C. It was held 1 that the case would not attract the provisions of S.92. It was also held that the formation of a society under the Societies Registration Act to carry out any charitable or useful or social purpose cannot be regarded as amounting to creation of a trust within S.92 C. P. C. The principle of that decision is not attracted in the present case since the acquisition was by the society whereas in the present case there is no acquisition by the society. On the other hand, the properties were made over to the society for the purpose of fulfilling the object for which the trust was created viz. propagation of religion and gospel work. On the other hand, the properties were made over to the society for the purpose of fulfilling the object for which the trust was created viz. propagation of religion and gospel work. The Full Bench decision of this Court in Kesava Panicker's case (supra) applies on all fours and it has to be found that the properties cannot be claimed by the society whereas they are impressed with trust character. 25. Relying on the averments in the plaint it is contended by Sri T. P. Aravindakshan, learned counsel for 8th respondent, that plaintiffs themselves have no case in the plaint that the properties belonged to a trust. Exts. A3 and A4, which are relied on by the appellants, are alleged to be void documents according to the plaint averments. It would appear that plaintiffs had treated these documents as assignment deeds and the allegation is that the assignors had no transferable right. Plaint proceeded on the basis that the properties were impressed with trust character even during the life time of Nagel and that appears to be the reason why the assignment deed executed by Mrs. Negel and the subsequent document Ext.A4 were stated to be void documents. It is the contention that appellants cannot rely on these documents by virtue of these plaint allegations. But the reliefs in the suit are claimed on the basis that the properties belonged to a trust. Plaintiffs had questioned all the transactions entered into by the parties since the formation of the trust. The question whether those documents are genuine or not or. whether a trust has been created by those documents are matters to be considered in the suit. At this stage it is sufficient if plaintiffs are able to show the existence of a public trust. That they were able to establish by the recitals contained in Exts. A3 and A4. Merely because Exts. A3 and A4 are alleged to be void documents, the trust character of the properties would not be lost. The plaint read as a whole would suggest the existence of a public trust and a prima facie case of breach of trust and necessity of obtaining directions from the court. 26. That there is a cause of action for plaintiffs to sue cannot be disputed. Defendants are attempting to dispose of the properties of the trust. The plaint read as a whole would suggest the existence of a public trust and a prima facie case of breach of trust and necessity of obtaining directions from the court. 26. That there is a cause of action for plaintiffs to sue cannot be disputed. Defendants are attempting to dispose of the properties of the trust. In such circumstances plaintiffs who are persons interested in the trust are competent to move the court to obtain a decree for one or other of the reliefs mentioned in clauses (a) to (b) of S.92 C. P. C. 27. To sum up, appellants had succeeded in establishing a prima facie case of existence of a trust for public purposes of religious or charitable nature. The properties are owned by the Brethren Sect, a denomination of Christians. Plaintiffs are members of that sect. The properties had been dedicated for gospel work. As such plaintiffs are interested in the trust in their capacity as members of that sect and not in their individual capacity. There is an allegation of breach of trust on the part of respondents who are alleged to have made attempts to transfer the properties to others. These circumstances necessitate the direction of the court for the administration of the trust. Appellants seek removal of respondents from the office of the trustees as well as a direction to them to render accounts of the profits from the properties. Request is also made to settle a scheme for proper management. The reliefs claimed come under clauses (a) to (b) of S.92 C. P. C. All the conditions required to be fulfilled under S.92 have therefore been fulfilled in the present case. The court below was wrong in not granting the leave asked for. The order is liable to be set aside. In the result the appeal is allowed and the order in O. P. 25/1982 is set aside and the petition is allowed. Leave is granted to appellants to institute the suit against respondents. No costs.