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CPC, 1908 · Part V · Special Proceedings · Public charities

Section 92 — Public charities

Public charitable and religious trusts belong to the whole community, so the Code gives them their own suit. For a breach — or to get the court’s direction on administration — the Advocate-General or two or more interested persons with the court’s leave may sue for one of eight reliefs; and, since 1976, the court may apply a failing trust’s property cy pres — “as near as possible” — to a like purpose.

§ 92

How to read Section 92

A special suit for public trusts

For a breach (or to obtain the court’s direction on administration) of a public charitable / religious trust, the Advocate-General — or two or more interested persons with leave — may sue for one of eight reliefs.

An exclusive gateway (2)

A suit claiming those reliefs for such a trust can only be brought in conformity with § 92(1) — save what the Religious Endowments Act, 1863 (and Part-B-State laws) allow.

Cy pres (3)

Where the trust’s original purpose has failed or become impossible / obsolete, the court may alter it and apply the property cy pres — to the nearest like purpose (added 1976).

The bare Act — colour-coded

Each sub-section sits in its own colour band; the reliefs (a)–(h) and the cy-pres circumstances (a)–(e) are tagged and tiered for clarity. Text is verbatim.

(1) The suit & the eight reliefs 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 ²leave 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;

(cc) [ins. 1956] 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;

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) The exclusive gateway

Save as provided by the Religious Endowments Act, 1863 (XX of 1863), ⁴or by any corresponding law in force in ⁵the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

(3) Cy pres — altering the original purposes ⁶

The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely—

(a) where the original purposes of the trust, in whole or in part,

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,

(i) been adequately provided for by other means; or

(ii) ceased, as being useless or harmful to the community; or

(iii) ceased to be, in law, charitable; or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.

Amendment & application notes

1. § 92 does not apply to any religious trust in Bihar — see Bihar Act 1 of 1951. 2. “leave of the Court” was substituted by Act 104 of 1976, s. 31 (w.e.f. 1-2-1977) for “consent in writing of the Advocate-General”. 3. Clause (cc) inserted by Act 66 of 1956, s. 9 (w.e.f. 1-1-1957). 4. Words inserted by Act 2 of 1951, s. 13 (w.e.f. 1-4-1951). 5. Subs. by the A.O. (No. 2), 1956 for “a Part B State”. 6. Sub-section (3) (cy pres) inserted by Act 104 of 1976, s. 31 (w.e.f. 1-2-1977).

The picture — the public-trust suit

§ 92 gives public trusts a representative guardian (the Advocate-General or interested persons with leave), an exclusive procedure, and — through cy pres — a way to keep the charity alive when its first purpose can no longer be served.

Section 92, part by part

(1) The suit & reliefs
(2) The gateway
(3) Cy pres

Gateway 1 · breach

In the case of any alleged breach

The first of two openings — an alleged breach of the trust. Note it need only be alleged; whether a breach actually occurred is for the suit to decide.

…of which trust

of any express or constructive trust created for public purposes of a charitable or religious nature,

The trust must be (i) express or constructive, and (ii) created for public purposes of a charitable or religious nature — a private trust is outside § 92.

Gateway 2 · direction

or where the direction of the Court is deemed necessary for the administration of any such trust,

The second opening — even without any breach, where the court’s direction is needed to administer such a trust (e.g. to settle a scheme or obtain guidance).

Who may sue

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,

Standing belongs to the Advocate-General, or two or more interested persons who have the court’s leave — and the suit lies whether contested or not. (In 1976, “leave of the Court” replaced the old “consent of the Advocate-General”.)

Which court

in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government

The forum: the principal Civil Court of original jurisdiction (the District Court), or any other Court the State Government empowers for this purpose.

Where (territorial)

within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate

That court must be the one in whose local limits the trust property — the whole or any part of it — is situated.

To obtain a decree

to obtain a decree

The object of the suit — a decree granting one of the eight reliefs (a)–(h) colour-listed above.

Saving · 1863 Act

Save as provided by the Religious Endowments Act, 1863 (XX of 1863),

§ 92 yields to the Religious Endowments Act, 1863 — so far as that Act provides for such trusts, it prevails over this section.

Saving · Part B laws

or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States,

— and to any corresponding law still in force in the territories that, just before 1 November 1956, made up the Part B States (the former princely-State regions). (“a Part B State” was re-worded thus by the A.O. (No. 2), 1956.)

The bar

no suit claiming any of the reliefs specified in sub-section (1) shall be instituted

A flat prohibition: no suit claiming any of the § 92(1) reliefs may be instituted —

…over such a trust

in respect of any such trust as is therein referred to

— in respect of a public charitable / religious trust of the kind § 92(1) describes —

…except via §92(1)

except in conformity with the provisions of that sub-section.

— except in conformity with § 92(1). So § 92 is the exclusive gateway: its safeguards (the Advocate-General / leave of the Court) cannot be by-passed by an ordinary suit.

What “cy pres” means — and why it is flagged here

“Cy pres” (say “see-pray”) is Law French — from cy près comme possible — meaning “as near as possible.” The Code uses the term in sub-section (3) but does not define it; its meaning comes from the settled law of charitable trusts, so it is worth spelling out.

The doctrine: where a public charitable / religious trust’s original purpose fails — it is fulfilled, becomes impossible or illegal, or has ceased to be useful or charitable — the gift does not lapse. The court instead applies the property to the charitable purpose nearest to the settlor’s intention — always “regard being had to the spirit of the trust.”

Example: a trust to maintain a particular leprosy hospital — if the disease is wiped out and the hospital closes, the court may redirect the fund cy pres to the nearest like medical charity, rather than letting the gift fail.

The power · alter

The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature

The court is empowered to alter the original purposes of such a public charitable / religious trust — it is not forever bound to the settlor’s first design once that design fails.

…apply cy pres

and allow the property or income of such trust or any portion thereof to be applied cy pres

— and may direct the trust’s property or income (the whole, or any portion) to be applied cy pres — “as near as possible” to the original intent.

…in these cases

in one or more of the following circumstances, namely—

But the power is not at large — it arises only in one or more of the listed circumstances (a)–(e) below (colour-tagged in the bare-act card).

When (the gist)

where the original purposes of the trust, in whole or in part, have been, as far as may be, fulfilled; or cannot be carried out

In essence: where the purpose is fulfilled, impossible, covers only part of the property, was tied to an area that has changed, or has become provided-for / useless / no-longer-charitable — always with regard to the spirit of the trust.

How the three sub-sections work as one body

Standing → an exclusive route → a saving power

(1) The suit

The Advocate-General or 2+ interested persons with leave may sue for a public trust — one of eight reliefs.

(2) The gateway

Such a suit is only maintainable under § 92(1) — the section’s safeguards cannot be by-passed.

(3) Cy pres

When the trust’s purpose fails, the court may redirect the property to the nearest like purpose.

§ 92 protects public charitable / religious trusts — a representative suit with safeguards (leave / the Advocate-General), an exclusive procedure, and the cy-pres power to keep the charity alive when its first purpose can no longer be served.

Amendment history — a timeline

1951 · Act 2 of 1951

The saving in sub-s. (2) was extended to corresponding laws in the former Part B States (later re-worded by the A.O. (No. 2), 1956).

1956 · Act 66 of 1956 (w.e.f. 1-1-1957)

Clause (cc) was inserted — a decree to make a removed / former trustee deliver possession of trust property.

1976 · Act 104 of 1976, s. 31 (w.e.f. 1-2-1977)

Two changes: “leave of the Court” replaced “consent in writing of the Advocate-General” (easing access); and sub-section (3) — the cy-pres power — was inserted.

Key terms decoded

Public charitable / religious trust

A trust created for public purposes of a charitable or religious nature — its beneficiaries are the public or a section of it, not named individuals.

Express or constructive trust

A trust declared by the settlor (express) or imposed by law from the circumstances (constructive) — both are within § 92.

Two or more persons having an interest

The plaintiffs (other than the Advocate-General) must be at least two and must have a genuine interest in the trust — and obtain the court’s leave.

Leave of the Court

The court’s permission, required before interested persons sue. It replaced “consent of the Advocate-General” in 1976.

Whether contentious or not

The § 92 suit lies even where no one contests — e.g. a suit merely to settle a scheme or get directions.

Settling a scheme

Relief (g): the court frames a scheme for the trust’s management — trustees, powers, and how the charity is run.

Cy pres

Law-French for “as near as possible”: where the original charitable purpose fails, the property is applied to the nearest purpose consistent with the settlor’s intent (sub-s. 3).

Religious Endowments Act, 1863

The earlier statute saved by sub-s. (2) — § 92 yields to it (and to corresponding Part-B-State laws).

Connected provisions

Section 92 is the public-charities node of Part V — Special Proceedings (§§ 89–93). It is the cognate of § 91 (public nuisances) — both representative public-interest suits — and is worked with Order I, rule 8. The Advocate-General’s powers outside the presidency-towns pass to a Collector under § 93.

§ 91 ←Previous — public nuisances (the cognate public-interest suit).

Order I, r. 8Representative suits — suing on behalf of many with the same interest.

§ 93 →The Advocate-General’s §§ 91–92 powers outside presidency-towns.

⚖ Part V MapPart V — Special Proceedings §§ 89–93.

Test yourself

1 Who may sue over a public charitable trust’s mismanagement? — the Advocate-General, or two or more interested persons with the Court’s leave [§ 92(1)].

2 Can such a suit be brought as an ordinary suit, side-stepping § 92? — No — sub-s.(2): only in conformity with § 92(1) (save the 1863 Act).

3 A trust’s original charitable object has become impossible. What can the court do? — apply the property cy pres to the nearest like purpose [§ 92(3)].

Part V · Special Proceedings · Section 92 — Public charities.