Operation Asha v. Shelly Batra (2025 KLT OnLine 2625 (SC)):
A Critical Appreciation of the Landmark Judgment on S.92, C.P.C.

(By Saji Koduvath, Advocate, Kottayam)
E-mail : sajikoduvath@gmail.com                                                                Mob.: 9400230025

Introduction

The Supreme Court decision, Operation Asha v. Shelly Batra (2025 KLT OnLine 2625 (SC) delivered on 05 August 2025), will be a significant and impactful judgment in the history of Indian law.

Reflection on Two questions of Critical Significance

The decision, Operation Asha v. Shelly Batra (2025 KLT OnLine 2625 (SC)), prompts reflection on two questions of critical and profound significance. They are:

• 1.Can aninstitution/organisation be considered as a ‘trust’ or a ‘constructive trust’?

• 2. Is it possible for a Registered Society –

      •(i) to create a trust upon the properties that have been acquired by the society after its registration, and

      •(ii) to ‘vest’ its properties in a ‘trust’ to have scrutiny thereof under Section 92 CPC?

The reflections of this author, in a nutshell, are the following –

• It is a misconception to match or equate a Trust with an Institution or Organisation.

• A trust cannot be created upon the “property belonging to a society”. But it is subject to certain exceptions.

Why it is a Misconception to Equate a Trust with an Association

• 1. In Indian law, a trust is not recognised as a legal entity—it is neither a person nor an institution. A trust, in law, is an ‘obligation’ imposed upon the trustees to manage and administer the trust property for the benefit of the beneficiaries; whereas, a Society is an association of individuals. Both are fundamentally distinct. (One is a concept and the other is a reality.) Any attempt to blend the legal character of a trust with that of a Society would run contrary to their distinctive legal frameworks and is totally inconsistent with established principles of jurisprudence.

• 2. Property of a Society vests in its Members subject to the contract (Bylaws) and the basic or essential principles upon which it is founded.

Why No ‘Trust’ in a “Property Belonging to a Society”

• 1. Under Indian law, members of a Registered Society are not permitted to ‘dedicate’ property belonging to the society, as the Society Registration Act, 1860, comprehensively governs the vesting and management of such property. As per Section 5 of the Act, if the property is not vested in trustees, it automatically vests in the Governing Body of the Society. Furthermore, the Act itself prescribes the procedure for dealing with the society’s property upon its dissolution. Any attempt by the members to transfer such property outside this legal framework will stand inconsistent with the statutory scheme and is therefore impermissible.

• 2. Section 92 CPC envisages ‘express or constructive trust’. This requirement is brought home only when there is dedication of property.

• Note: The “property belonging to a society” cannot be dedicated, after its Registration, even by a unanimous decision of its entire members, because the Society Registration Act governs the ‘vesting’, as stated above.

• 3. Societies, both registered and unregistered, are voluntary associations of persons. Article 19(1)(c) of our Constitution guarantees freedom to form associations and unions. It includes in itself the right of effective functioning so as to achieve its lawful objectives.

• 4. Since the Civil Courts’ jurisdiction to interfere in the internal affairs of a Society is well-defined by the Societies Registration Act and common law, the LAW does not envisage interference upon the “property belonging to a society” under Section 92 CPC.

‘A Trust’ is “An Obligation” and Not a Legal Entity

‘A trust’, according to the definition, being ‘an obligation’, it is clear that ‘a trust’ does not convey the idea that the ‘trust’ is a legal person, an association of persons, or a tangible or corporeal property. The following are the important decisions on this point.

• Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia: (AIR 1949 PC 143);

• Thiagesar Dharma Vanikam v. C.I.T.(1962 KLT OnLine 1182 (Mad.) = AIR 1964 Mad. 483 = 1963- 50 ITR 798 (Mad.));

• Ramdass Trust v. Damodardas(1967 Raj. LW 273);

• Duli Chand v. Mahabir Pershad Trilok Chand Trust(AIR 1984 Del 144);

• Thanthi Trust v. Wealth Tax Officer(1989- 45 TAXMAN 121 = 1989-178 ITR 28);

• Chikkamuniyappa Reddy Memorial Trust v. State(1997 (1) KLT OnLine 1137 (Karnt.) = ILR 1997 Kar. 2460);

• Kishorelal Asera v. Haji Essa Abba: (2003-3 Mad LW 372 = 2003-3 CCC367);

• Sagar Sharma v. Addl. CIT: (2011-239 CTR 169 = 2011-336 ITR 611);

• Sambandam v. Nataraja Chettiar(2012-1 Mad LW 530).

Bylaws Bind as Contract

The members of a club or society, both registered and unregistered, are bound by the memorandum of association and its rules and regulations. The bylaws bind its members as a contract. Even the formation of a society itself is based on a contract. When a person becomes a member of the society, he would have no independent rights, and lose his individuality qua the society except those that are given to him by the statutes concerned and bye laws; and the rights of members merge in the rights of the society. In State of U.P. v. CD Chheoki Employees Co-operative Society (1997 (1) KLT OnLine 1026 (SC) = AIR 1997 SC 1413), our Apex Court explicated it with the analogy thatthe stream cannot rise higher than the source.It reads:

“Thus, it is settled law that no citizen has a fundamental right under Article 19(1)(c) to become a member of a Co-operative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfillment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, Rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, Rules and the bye-laws as he has his right under the Act, Rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.” (Quoted in Zoroastrian Co-op. H. Society Ltd. v. District Registrar (2005 (2) KLT SN 74 (C.No. 88) SC = AIR 2005 SC 2306); Supreme Court Bar Association v. BD Kaushik: (2011 (4) KLT SN 64 (C.No.71) SC = (2011) 13 SCC 774); Chandigarh Housing Board v. Devinder Singh (AIR 2007 SC 1723).

Instances Where a Society Falls Under the Clutches of S. 92 CPC

Section 92 CPC envisages ‘trust’ in a general, and not in a restrictive, sense as it refers to ‘express or constructive trust created for public purposes of a charitable or religious nature’. The following are the instances of imposing ‘trust’ (upon the property of a Society) to be subjected to the jurisdiction under Section 92 CPC:

1. If a charitable institution is established by an association of persons through a valid dedication of property, it acquires the character of a trust for a public purpose within the meaning of Section 92 of the CPC. The subsequent registration of the association under the Societies Registration Act will not alter or extinguish its trust, which had arisen from the original act of dedication and the charitable purpose it serves. 

• Note: 1. Such property cannot be treated as the property ‘belonging to’ the association. (The property of a society is described in Section 5 of the So. Regn. Act as the property ‘belonging to the society’.)

• 2. Beneficiaries of such a public trust will be outsiders (other than the members of the association) or, at least, outsiders must also be the beneficiaries.

2. If it is manifested from the nature of an association (Society or a Non-Trading-Company) that a property held by such an institution is meant for the benefit of the third parties or public, i.e., other than the members of the association.

3. If a society is formed with the object of dedicating property for a public charitable or religious purpose, and if the property is so dedicated and a trust is predicated.

4. If the society accepts a gift of a property with the obligation to manage the same for the benefit of the beneficiaries intended by the donee.

Trust is Created if Property Gifted on Conditions, to a Regd. Society

The Supreme Court, in Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan (2017 (1) KLT OnLine 2037 (SC) = (2017) 4 SCC 771 = AIR 2017 SC 1221), considered whether
a trust would arise when the donor waqfed (gifted) property to a society, registered under the Indian Societies Registration Act, 1960, for the development and publicity of the Hindi Language. The property was gifted on condition that the society would not have the right to mortgage or the right of sale. The society had not been taking any interest in achieving the purpose. Therefore, a petition was filed under Section 92 of CPC. The district judge allowed the petition, observing that prima facie it appeared that a constructive trust was created. The district judge relied on the Kerala High Court decision in Sukumaran v. Akamala Sree Dharma Sastha (1992 (1) KLT 432 = AIR 1992 Ker.406).The High Court, in Revision, reversed the order of the district judge. The matter was finally considered by the Apex Court, by ‘special leave’. The Apex Court upheld the view of the District Judge, observing as under:

• “We have noticed that the trust deed was executed in favour of the respondents. But it appears in view of the facts and circumstances of this case and the submissions made on behalf of the respondents, that it was waqfed/gifted for a lawful purpose i.e. a “trust” (which) is an obligation annexed to the ownership of the property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another owner, (Act II of 1882 Trusts, Section 3). Accordingly, in our opinion, the application filed by the appellants was falling within the required ambit of Section 92 of CPC and the learned district judge had rightly permitted the appellants to institute a suit.”

In Sukumaran v. Akamala Sree Dharma Sastha (supra), the Kerala High Court relied on the following passage from Keshava Panicker v. Damodara Panicker (1975 KLT 797 (F.B.) = AIR 1976 Ker.86).

• “The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will belong to the society and there is no trust and no trust can be predicated……. 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”.

The Delhi High Court, in Young Mens Christian Association of Ernakulam v. National Council YMCAs of India (2018 SCC OnLine Del 9909), considered whether the term “express or constructive trust” in Section 92 CPC was attracted when a society (National Council YMCAs of India) held ‘in trust’ property belonging to different organisations, and observed as under:

• “In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”

The Delhi High Court also relied on Kesava Panicker v. Damodara Panicker (1975 KLT 797 (F.B.) = AIR 1976 Ker.86), where it was held that if a trust was created for a public or charitable purpose, the fact that it was registered as a society would not change the character of the properties.

The Delhi High Court distinguished

•  Abhaya A Society v. JA Raheem (2005 (3) KLT 891 = AIR 2005 Ker. 233),

•  S. Guhans v. Rukmini Devi Arundale, (1987 100 LW 182, = AIR 1988 Mad.1)

•K. Rajamanickam v. Periyar Self Respect Propaganda Institution (AIR 2007 Mad. 25),
and

•Advocate General v. Bhartiya Adam Jati Sewak Sangh (2001-3 ShimLC 319),

pointing out that these cases did not show that they held ‘in trust’ any property belonging to a different organisation.

Conclusion

For a suit to be maintainable under Section 92 of the Civil Procedure Code, the fundamental requirement is the existence of a valid trust created for public purposes of a charitable or religious nature. The application of Section 92 to the property of a society is subject to strict judicial scrutiny.

•Courts are consistently cautious in extending the ambit of this provision to Societies, unless there is clear, unequivocal evidence that the property is held under an enforceable trust obligation for charitable or religious purposes.

Importantly, the property in question must not merely be "property belonging to a society",because such property is governed by the Societies Registration Act, which prescribes its own statutory framework for ownership, management, and dissolution.

Not Supplant, Only Supplement

(By K.Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com     Ph.0484-2376428

“Not infallible, but Supreme.” In the Judicial hierarchy, the Supreme Court is infallible because it is final.

“The Parliament enacts the laws, the executive implements them, and we interpret them.”This is how the interaction between the three organs of the Constitution was tersely put by former Chief Justice Shri Sanjeev Khanna. Can one of the organs step into the area earmarked for the other? Can the executive, for instance, declare an enactment invalid? Can the Parliament declare a person within its liking to be innocent of a crime? Obviously not. This embargo therefore applies to the judiciary equally as well, not to enter into areas occupied by the legislature. Courts do not supplant but only supplement.

“The judiciary must exercise self-restraint and not encroach into the executive or legislative domain.”- Union of India v. Hiranmoy Sen (2008 (2) KLT Suppl.348 (SC) = (2008) 1 SCC 630).

“The distinction between law-making and adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten.” - Supriyo @ Supriya Chakraborty v. Union of India (2023 KLT OnLine 1989 (SC) = 2023 INSC 920).

See further inState of Orissa v. Gopinath Dash (2006 (1) KLT SN 41 (C.No. 56) SC = (2005) 13 SCC 495), “While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority, and the Constitution does not permit the Court to direct or advise the executive in matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power… Thus the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere.”

Still, some of the judgements rendered by the Supreme Court often raise eyebrows even of ardent supporters of judicial independence and supremacy of the courts. One of them is the recent direction issued to the highest constitutional functionary of India in State of Tamil Nadu v. Governor of Tamil Nadu, reported in 2025 KLT OnLine 1733 (SC). While a section of the legal community acclaims it as a powerful exercise of judicial authority over the executive and affirms judicial scrutiny in all spheres of constitutional functioning, some feel it is judicial overreach, particularly by an institution that itself suffers seriously from the malady of inordinate and unexplained delay in the disposal of cases, rendering justice, and a huge backlog of cases.

A recent study, the details of which have been published in an English newspaper, gives startling statistics of pending cases in different judicial forums in the country.

“Over 86,700 cases are pending in the Supreme Court, over 63.3 lakh cases in High Courts, and 4.6 crore cases in district and subordinate courts. Added up, the total number of pending cases in India amounts to more than 5 crore.”

The pendency of cases in courts represents about one-fifth of the population of the country. Yet, the Apex Court has found fault with the Rashtrapati for delaying bills sent for assent and issuing a writ of mandamus legislating a period of three months, not incorporated by the constituent assembly comprising of tall men who had sacrificed everything for the freedom of the country. Neither Article 111 nor Article 200 of the Constitution of India fixes any time limit but uses the expression ‘as soon as possible.’ In substituting the combined wisdom of several stalwarts and in issuing a command to the supreme commander of the armed forces of the country, the Supreme Court has relied upon the ‘Akshayapatra’ of powers under Article 142 of the Constitution of India.

It may be remembered that the Code of Civil Procedure fixes a time limit of maximum 60 days for pronouncing judgment (see Order XX Rule 1 of the Code of Civil Procedure, 1908). The Representation of the People Act mandates that all election petitions shall be disposed of in six months. (See Section 86 (7) of the Representation of the People Act, 1951). There are similar provisions in number of enactments like the Rent Control Acts and similar benevolent laws. Is this time limit ever complied with by any court in India? On the other hand, the Supreme Court has, in Anil Rai v. State of Bihar, reported in (2001 (3) KLT SN 15 (C.No.15) = (2001) 7 SCC 318), lamented that judgements are inordinately delayed and has issued directions to the courts to ensure pronouncement of speedy judgements. The litigants’ burden ends with the trial of the case, and the duty of the Judges begins after the conclusion of the trial. Nevertheless, in performing this duty, according to the Supreme Court, there is total indifference and consequent delay in the final disposal of cases.

True, there is systematic deficiency along with absence of effective case management and scheduling.

Fortunately the High Court of Kerala now is blessed with some very competent, committed, and hard-working Judges. Some of them work from 4 am to 11 pm. Yet due to the structural bottlenecks, procedural delays, and systematic constraints, there is a huge backlog of cases that appears to be beyond control as at present.

The President of India under the Constitution is enjoined to perform multifarious functions. They are connected with the Parliament, the Executive, and the Judiciary. The Supreme Court enjoys frequent vacations, including for both important and insignificant religious festivals. It also has the advantage of a long vacation besides availing of the leave. The President, however, does not enjoy even one day’s vacation. The office of the President is exacting and saddled with onerous duties, including travel abroad. That office, therefore, cannot be faulted with deliberate delays. The office of the President works throughout the year without any break, unlike the Supreme Court.

It therefore is really surprising that the Supreme Court finds fault with the President for not giving assent to bills in “three months” while the normal lifespan of a litigation in India is not less than thirty years. The litigant, a reluctant and hesitant entrant in courts, is not impressed. He is still uncared for.

The President was not made a party to the petition filed by the state of Tamil Nadu. Article 361 of the Constitution of India affords protection to the President and the Governors of the States from being answerable to any court for the exercise and performance of the powers and duties of their office. Neither the governor nor the President of India can therefore be made answerable in contempt if the mandamus issued by the Supreme Court is not obeyed or complied with. In short, the judgment of the Two-Judge Bench innovating a time limit in the constitution is wholly unworkable, ineffective, and otiose from the beginning.

Intricate, if not intriguing, questions on the interpretation of the Constitution therefore arise in the episode, which one hopes will be resolved in the presidential reference.