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NaraIn Lal and ors. Vs. Sunder Lal (Dead) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1967SC1540; [1967]3SCR916
ActsCode of Civil Procedure (CPC), 1908 - Sections 92 and 92(1)
AppellantNaraIn Lal and ors.
RespondentSunder Lal (Dead) and ors.
Cases ReferredRaja Anand Rao v. Ramdas Daduram L.R.
Excerpt:
.....section 92 to be brought by all persons to whom sanction of advocate general has been given - suit instituted only by some of them not maintainable - authority to sue given to several persons constitutes joint authority - authority to be acted upon by all jointly - held, survivor appellants to obtain fresh sanction to institute suit. - labour & services pay parity: [altamas kabir & markandey katju, jj] fixation of pay--withdrawal of benefit--petitioner along with his friend filed petition for step up pay to that of juniors - benefit was only given to friend of petitioner - no benefit given to petitioner - petitioner's petition dismissed as infructuous - held, high court was bound to deal with claim of both petitioners. senior cannot be paid lesser salary than his juniors...........be brought by all the persons to whom the sanction of the advocate general has been given, and a suit instituted by some of them only is not maintainable. in muddala bhagavannarayana v. vadapalli perumallacharyulu 29 m.l.j. 231, where the sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and had refused to join as plaintiffs, it was held that the suit was not maintainable. in pitchayya and another v. venkatakrishnamacharlu and eleven other i.l.r. 53 mad. 223, where the sanction was given to there persons, the court held that the suit instituted by two of them was invalidly brought and the defect could not be cured by impleading the other person as a defendant. in sibte rasul v. sibte nabi and others.....
Judgment:

Bachawat, J.

1. On September 10, 1955, Narain Lal, Mool Chand, Mangilal and Kesharichand obtained the consent in writing of the Advocate General, Rajasthan to institute a suit against the respondents under S. 92 of the Code of Civil Procedure. The consent was in these terms :

'For the reasons detailed above I grant permission to the applicants Sarvashri (1) Narainlal, (2) Mool Chand, (3) Mangilal and) Seth Kesharichand for filling suit against the opposite parties Shri Malilal Kasliwal and 27 other members and office holders of the executive committee Jain Atishaya Kshetra Shri Mahabir Swami Temple Chandangaon, for the reliefs detailed in paras 28 sub-paras 1 to 5 and 7 of the draft plaint filed by them before me.'

2. Shortly thereafter Mangi Lal died. On march 6, 1956, Narain Lal, Mool Chand and Kesari Chand instituted a suit against the respondents under S. 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appearing properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as whole and for other reliefs. On March 9, 1958, Kesari Chand died. The trial court raised and tried the following preliminary issue :

'Whether the suit is not maintainable on the strength of the permission obtained by the plaintiffs along with Mangi Lal who died prior to the institution of the suit ?'

3. The trial court held that the suit was maintainable. The High Court in its revisional jurisdiction set aside the order of the trial court and held that the suit was not maintainable. The present appeal has been filed from the ordure of the High Court by special leave.

4. A suit claiming any of the reliefs specified in Sub-s (1) of s. 92 of the Code of Civil Procedure in respect of a trust for public purposes of a charitable or religious nature may be instituted 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', and save as provided by the Religious Endowments Act 1863 and certain other laws, no suit claiming such reliefs in respect of any such trust can be instituted except on conformity with sub-s. (1) of S. 92. In the present case, four persons obtained the necessary sanction of the Advocate General, one of them died before the suit was filed, and the remaining three instituted the suit. the question is whether the suit is brought in conformity with. 92(1).

5. The decided cases show has a suit under S. 92 must be brought by all the persons to whom the sanction of the Advocate General has been given, and a suit instituted by some of them only is not maintainable. In Muddala Bhagavannarayana v. Vadapalli Perumallacharyulu 29 M.L.J. 231, where the sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and had refused to join as plaintiffs, it was held that the suit was not maintainable. In Pitchayya and another v. Venkatakrishnamacharlu and eleven other I.L.R. 53 Mad. 223, where the sanction was given to there persons, the court held that the suit instituted by two of them was invalidly brought and the defect could not be cured by impleading the other person as a defendant. In Sibte Rasul v. Sibte Nabi and others I.L.R. (1943) All. 112, where four persons obtained the sanction and the suit was instituted by three of them it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of the delivery of the judgment. We may add that in Venkatesha Malia v. B. Ramaya Hegade and twelve others I.L.R. 38 Mad. 1192, where the sanction to sue under S. 18 of the Religious Endowments Act 1863 was given by the district judge to two persons, it was held that only one of them could not institute the suit.

6. We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent. As Sir George Rankin said in Musammat Ali Begam v. Badr-ul-Islam Ali Khan I.L.R. 65 IndAp 198, 'where the consent in writing of the Advocate General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only. The suit as instituted must conform to the consent. ' Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Rao v. Ramdas Daduram L.R. 48 IndAp 12, and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, se Musammat Ali Begam v. Badr-ul-Islam Ali Khan I.L.R. 65 IndAp 198.

7. In Sheo Ram v. Ram Chand and other A.I.R. 1940 Lah. 356, the sanction of the Collector to bring a suit under S. 92 was given to twenty person. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skempg, J. held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in Musammat Ali Begam v. Badr-ul-Islam Ali Khan I.L.R. 65 IndAp 198, it was held that where the sanction had been given to three person, a suit by two of them only was validity instituted. From the report Raja Anand Rao v. Ramdas Daduram L.R. 48 IndAp 12, it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four person and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained buy the survivors for the institution of the suit. We must hold that the suit brought buy the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar they institution of a fresh suit in conformity with a fresh consent obtained from the Advocate-General or Collector.

8. in the result, the appeal is dismissed without costs.

9. Appeal dismissed.


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