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Mandoori Durga Mallikharjana Vara Prasad Rao and anr. Vs. Gudipudi Gopalacharlu and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1926Mad970; 97Ind.Cas.462
AppellantMandoori Durga Mallikharjana Vara Prasad Rao and anr.
RespondentGudipudi Gopalacharlu and ors.
Cases ReferredGopalakrishna Iyer v. Ganapathi Iyer
Excerpt:
- .....that objection as he has joined the plaintiffs. nevertheless we think that the conclusion that the sanction obtained was not a proper sanction to justify the suit under section 92 is a conclusion which that court was entitled to come to and it is not open to us to set aside its order in appeal merely because the 8th defendant now waives his objection before us. we think it is not an objection that can be properly waived. the very object of insisting upon the sanction of a collector or of the advocate general being obtained as a preliminary to a suit under section 92 is to secure that suits are not brought against trustees unless there is a prima facie case against them of breach of trust or unless circumstances exist which necessitate the court's interference in the administration of the.....
Judgment:

1. This is an appeal arising from a suit filed under Section 92 of the Civil Procedure Code for the removal of Defendants 1 to 7 from trusteeship of the plaint temple, for a declaration that certain properties described in the schedule belonged to the temple and for framing a scheme. The suit has been dismissed by the lower Court on the ground inter alia that none of the Defendants 1 to 7 is a trustee of the temple but that the trustee is really the 8th defendant, the Zemindar of Mirzapur, and that against him no sanction was obtained from the Collector and that the endorsement of sanction by the Collector on the plaint before he was added as a party is not a sufficient sanction to enable the suit to be maintained against him.

2. We think the Subordinate Judge is right in holding that the suit is not maintainable on the present sanction. The 8th defendant is the real trustee and as against him no sanction has been obtained. 8th defendant objected to the suit going on in the lower Court on this very ground, though before us he is nob pressing that objection as he has joined the plaintiffs. Nevertheless we think that the conclusion that the sanction obtained was not a proper sanction to justify the suit under Section 92 is a conclusion which that Court was entitled to come to and it is not open to us to set aside its order in appeal merely because the 8th defendant now waives his objection before us. We think it is not an objection that can be properly waived. The very object of insisting upon the sanction of a Collector or of the Advocate General being obtained as a preliminary to a suit under Section 92 is to secure that suits are not brought against trustees unless there is a prima facie case against them of breach of trust or unless circumstances exist which necessitate the Court's interference in the administration of the trust. The object of this section will be defeated if it is left open to a plaintiff to get sanction against a person who is not the trustee and then use it afterwards against the real trustee. The personality of the; trustee and the way in which he is dealing with the trust are matters of material consideration in granting sanction for a suit.

3. It is quite true that every addition of a defendant is not necessarily to be regarded as invalidating the sanction already obtained under Section 92. The test as to whether a new sanction is necessary when a new defendant is added has been laid down in the case of Gopalakrishna Iyer v. Ganapathi Iyer [1920] M.W.N. 478, as depending on whether the scope of the suit has been really enlarged or altered by the addition of the new party. We accept that statement as embodying the right principle in considering the question at issue. In the case before us the addition of the 8th defendant entirely changes the nature and scope of the suit. Against him there is no allegation of any breach of trust. As the learned Subordinate Judge has found there is no reason whatsoever for removing him from the trusteeship and nothing to justify the Court's interference in the administration of the trust. We accept that finding. The 8th defendant is the Zemindar of Mirzapur. We have no doubt that he would discharge his duties as trustee to the satisfaction of all concerned worshippers and others. In these circumstances we think that the addition of the 8th defendant subsequent to the obtaining of the Collector's sanction has rendered that sanction invalid and hold that the suit is not maintainable and dismiss the appeal, but in the circumstances we do not propose to grant costs to either of the parties.


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