Satyanarayana Raju, J.
1. These cases were referred to the Full Bench because Umamaheswaram, J., before whom they originally came up for disposal, considered it necessary that the conflict between the two Division Bench decisions of the Madras High Court in Kanda Poonappa Naicken v. Venkata Sesha Iyar 50 Ind Cas 353 (2) : (AIR 1919 Mad 809 (1) ) and Seerangathuni v. Vaithilinga Mudaliar, 40 Mad LT 532: (AIR 1921 Mad 528) should be resolved by a Full Bench.
2. The relevant facts are few and not in dispute. There is an institution at Ongole, known by the name of the Byragi Mutt. The Mutt owns extensive landed properties, Pursuant to the decree dt. 23-1-1952 passed by the Subordinate Judge's Court, Ongole, in O.S. No. 4 of 1951, the then trustees who were in management of the affairs of the institution, were removed from their office and three trustees were appointed, one of whom was designated the Managing Trustee. After obtaining possession of the lands belonging to the Mutt, the Managing Trustee filed suit Nos. 7 to 9 of 1953 on the file of the Small Causes Court, Ongole, on 20-6-1952 for recovery of damages for use and occupation on the ground that the defendants were in unauthorised occupation of the lands.
The suits were resisted by the defendants mainly on the around that the actions brought only by one of the trustees were not maintainable. Thereupon the other two Trustees were impleaded as supplemental defendants in all the suits on 17-9-1953. Following the decision in Vedakannu v. Annadana Chairam, AIR 1938 Mad 982, the learned Subordinate Judge held that the suits must be deemed to have been properly instituted not on 20-6-1952 when the plaints were filed but on 17-9-1958 when the other two trustees were brought on record and that therefore the claim for damages for use and occupation for the year 1949-50 become burred by time. It was against this decision that the revision petitions were preferred by the Managing Trustee of the Mutt.
3. The question to be determined in these cases is whether or not the suit claim for the year 1949-50 is barred by limitation.
4. There is no doubt that when first brought, the suits were well within the statutory period, but it is contended by the respondents that they were not then brought by all the proper and necessary plaintiffs and that afterwards when the record was amended in that respect, the statutory time had expired.
5. Section 22(1), Limitation Act, provides as follows :
'Where, after the institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.'
6. Now, the question whether the joinder of parties after the institution of a suit shall necessarily involve the bar of limitation if the prescribed period has expired, must depend upon the answer to the question whether the joinder was necessary to enable the court to award the relief in the suit as framed. The test to he applied is whether the suit was properly constituted on the date of the plaint so as to enable the court to adjudicate as between the parties impleaded. A suit is no; said to be properly constituted unless all the necessary parties are impleaded. Persons who ought to be joined as parties are called necessary parties.
They are persons necessary to the constitution of the suit, i.e., persons in whose absence no effective decree at all can be passed. If necessary parties are not impleaded, the suit is bad for non-joinder and the addition of those parties after the period of limitation will necessitate the dismissal of the suit. If, however, at the inception, the necessary parties are impleaded, the non-joinder of other persons who are not necessary or indispensable hut whose joinder is only desirable to safeguard their rights and the rights of others and to prevent further litigation does not render the suit as improperly constituted and the joinder of those parties after the period of limitation will not necessitate the dismissal of the suit. That being the position in law, the questions which arise for consideration are:
(1) Whether the Mutt has a right to sue?
(2) Whether the suits instituted by the Managing Trustee as representing the Mutt, without impleading the other trustees, would render them an improperly constituted?
7. Initially it is necessary to consider the legalconcept of a mutt or idol and the status of a manager in relation thereto. According to Hindu jurisprudence a religious institution, such as a mutt, istreated as a juristic entity with a legal personalitycapable of holding and acquiring property. Theownership is in the institution or the idol. Fromits very nature a mutt or idol can act and assert itsright only by a recognized human agency, knownas a shebait or dharmakarta or sometimes knownas trustee. Bur such a manager, by whatever termhe is designated, is not the person in whim thelegal title vests as in a trustee; the trustees of amutt or female are not trustees in the technicalsense. The ownership is in the institution or the,idol. The manager holds the property of the muttor the temple merely ns a manager save by customor usage.
8. The principle has thus been summed up by Sir Lawrence Jenkins in Babaji Rao v. Laxmandas, ILR 28 Bom 215 at p. 223.
'A Mutt, like an idol, is in Hindu Law a juridical persona capable of acquiring, holding and vindicating legal rights, though of necessity in can only act in relation to those rights through the medium of some human agency. When the property is vested in the Mutt, then litigation in respect of it has ordinarily to be conducted by, and in the name of tie manager, not because the legal property is in the manager, but because it is the established practice that the suit would be brought in that form. But a person in whose name a suit is thus brought has in relation to that suit a distinct capacity; ho is therein a stranger to himself in his personal and private capacity in a court of law.'
9. That a mutt or idol has the power ofsuing and is capable of being sued, is establishedin the pronouncement of the Judicial Committeeto Pramatha Nath Mullick v. PradyumnakumarMullick 52 Ind App 245 at p. 250 : ILR 52 Cal809 : (AIR 1925 PC 139 at p. 140). There it wasobserved thus :
'A Hindu Idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by courts of Jaw a 'juristic entity.' It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy be given to the manager of the estate of an infant heir.'
10. There is therefore no difficulty in holding that an idol or mutt is a juristic entity capable of vindicating legal rights.
11. Section 22(1), it may be noted, will apply only if the other trustees who were subsequently impleaded, can be regarded as parties newly substituted or added, but that will not be the case if the real plaintiff is the mutt and not the manager representing it. If the suits are by the Mutt, the fact that one only of its trustees has brought the actions would not render the suits initially bad.
12. In Ponnappa Naicken 50 Ind Cas 353(2) : (AIR 1919 Mad 809 (1)) Seshagiri Aiyar and Phillips, JJ. in a similar situation, held that as the temple was originally represented by persons interested in it, the subsequent addition of more representatives out of time would not bring the suit within the misschief of Section 22, Limitation Act.
13. It is stated that this decision is in conflict with the judgment of the Division Bench in 40 Mad LJ 532 : (AIR 1921 Mad 528). There the facts were these. One of the executors who had obtained probate of a will sued for recovery of possession of the testator's properties, movable and immovable, from persons in possession. The 1st defendant, the widow of the testator, raised an objection that the suit was bad for non-joinder of the other executor and thereupon the latter, who refused to join as a plaintiff, was impleaded as a co-defendant. The 1st defendant had bean in adverse possession of the immovable properties of the testator for less than twelve years at the date of the suit but for more than twelve years at the time when the co-executor was impleaded as a defendant and she pleaded that the suit was barred by limitation under Section 22, Limitation Act.
The Division Bench, consisting of Sir John Wallis. C.J., and Ramesam. J., held that the suit must be deemed to have been properly instituted only when the co-executor was added as a party defendant & as at that date the first defendant had been in adverse possession for more than twelve years, the Suit for recovery of possession of the immovable properties was barred. This conclusion was based on the principle that when an estate vested in the executors as a body, a co-executor was a necessary party to a suit for recovery of properties if he had not renounced probate, and in the above decision, it was found that he had not so renounced.
14. It is quite clear on the wording of Section 22, Limitation Act that when a wrong plaintiff sues and a right plaintiff is afterwards substituted, the suit must be regarded as instituted as on the date of the substitution. Co-executors have a joint right of action and they are persons necessary for the constitution of the suit. The principle of this decision does not, however, govern a case where the action is brought in respect of property held by a mutt or idol because the institution is a competent plaintiff in a suit in respect of property held or claimed by it, and this is a right quite distinct from that which belongs to its managers.
15. A contrary view was taken by Venkatasubba Rao and Abdur Rahman JJ., in AIR 1938 Mad 982 at p. 990, where the learned Judges observed as follows;
'The general principle of law is that the office of a trustee, irrespective of the number of trustees, is a joint one and co-trustees form, as it were, one trustee and must therefore execute the duties of their office jointly. It has been held in a number of cases that no suit in regard to trust properties would be maintainable by one or some of the trustees only, if the remaining trustees are not before the court either as plaintiffs or even as defendants: See Rajendronath Dutt v. Sheikh Muhmmad Lal, ILR 8 Cal 42 (PC); Bachu Lal v. Oliulla, ILR 11 Cal 838; Ashtamurthi Nambudri v. Raman Menon, 9 Mad LJ 312 and Shanmuga Moopanar v. Subbaya Moopanar, 42 Mad LJ 133: (AIR 1922 Mad 317).'
16. In 9 Mad LJ 312 a suit was filed by a Uralan of a Devasom without making the other Uralans parties. It was held that the suit was bad for non-joinder of necessary parties and should be dismissed. The decision in 42 Mad LJ 133: (AIR 1922 Mad 317) contains a statement of the general rule that if several persons have a joint right of action, all must join in suing; that if any of them will not come in as a plaintiff, he must be added as a defendant, and that co-trustees are subject to the above rule. In that case, some of several trustees of a temple brought a suit for possession of its endowments without impleading their co-trustees and obtained a decree. The High Court on appeal, instead of dismissing the suit, remanded the case to the lower court for addition of the other trustees as parties and for trial of the suit, on payment by the plaintiffs of all costs incurred till then.
17. In Subramania Aiyar v. Subba Naidu, 25 Mad LJ 452 a suit was brought on behalf of a Devasthanam by person who was not or had ceased to be trustee but on objection the Proper trustee was substituted in his place. The teamed Judges of the Division Bench, Benson and Sadasiva Aiyar, JJ., held that the substitution cured all defects in the suit with effect from the date of its institution. This was rested on the principle that
'when the cestui que trust is substantially on the record of a suit from the beginning, the rectification of the original improper representation by a proper representation cures all the original technical defects with effect from the date of institution of the suit and that the rectification cannot be treated as the addition of a new party so as to attract the penal provisions of Section 22 of the Limitation Act.'
18. Biswas, J., in Jyoti Prosad V. Jahor Lal, AIR 1945 Cal 268 at p. 278 stated the rule thus:
'As is, however, recognised in many of these cases and is in fact implied in the statement of the rule, it cannot be maintained as an absolute rule of law that all the co-shebaits must join in representing the deity. The rule is subject to exceptions, and circumstances may exist in which the deity may be validly represented by some only of the shebaits, and even by a person who is not a she-bait. Where a suit is a suit by the deity represented by some of its shebaits, the question whether or not the other shebaits should be joined as parties is often, in the last analysis, a mere question of procedure and expediency; the test is whether or not, having regard to all the circumstances of the case, the interest of the deity may be said to be sufficiently represented.'
19. If it is not a case of imperative necessity but only a matter of convenience or expediency, either the absent party may be added or the suit may be tried without him. The addition of the other trustees is not a case of imperative necessity but is only a matter of convenience or expediency.
20. We would, therefore, answer the questions above formulated as follows:
'(1) The right to sue vests in the Mutt.
(2) The suits instituted by the Managing Trustees as representing the institution were even at the inception, properly constituted.
21. On these conclusions it must follow thatthe claim for recovery of damages for use andoccupation for the year 1949-50 are not barred bylimitation. They are therefore decreed with costshere and in the court below.