1. the plaintiff in the suit from which this appeal arises is an idol represented by its manager or kariyusthar.
2. The defendant, the widow of the late zemindar of Melmandai, was sued as trustee of a fund established for meeting the expenses of public worship and other duties, including repairs, connected with the temple in which the idol is installed.
3. Admittedly this is a public charitable or religious trust. The short question is whether the suit is one to which Section 92, Civil Procedure Code, is applicable. The District Munsif held that it was, and dismissed the suit as it had not been instituted with the sanction of the Advocate-General. The Subordinate Judge held otherwise, and restored the suit. The defendant has appealed from this decision.
4. The plaint alleges that a fund called the Pillayarvari, representing a tax on the villagers in the zamin, has been collected by the zamindars for the above-mentioned purposes of the temple, under an arrangement that the zamindar on request by the kariyasthar, should pay to the kariyasthar the money so collected. And it is further stated that the defendant and previous zamindars have been paying the plaintiff's kariyasthar and his predecessors at the rate of Rs. 35-2-8 per annum. The cause of action is that there is an accumulated balance of the collections in the hands of the defendant which the defendant has refused to pay to the plaintiff. This appears from para. 10 of the plaint which alleges:
Though, the plaintiff's kariyasthar had been asking the defendant several times that an account should be taken of the plaintiff's moneys in the defendant's hands and the same should be handed over to him since the plaintiff's temple for the past several years has deteriorated and is in a very dangerous state and that more amount should be given to him and that the amount collected every year as Pillayarvari should be handed over to him since the amount paid by the defendant was insufficient for conducting the plaintiff's temple affairs owing to difference in the prices of the past and the present, the defendant has been putting off with vain words.
5. This paragraph imputes to the defendant a breach of trust. Among the reliefs for which the plaint prays is that an account betaken and that the defendant be directed to pay to the plaintiff such sum as may thereby be found due. Prom the frame of the plaint, therefore, it appears that this is a suit founded upon an alleged breach of trust in respect of a public religious trust, claiming one of the reliefs specified in Section 92(1). If such be the nature of the suit, it can only be instituted with the sanction of the Advocate-General. Section 92 is clear in its terms, although the many cases cited in the argument show that the section is not always easy of application.
6. It has been contended before us that the suit is in reality a dispute between two trustees; and the Pull Bench decision in Appanna Poricha v. Narasinga Poricha 45 M. 113 : 69 Ind. Cas. 204 : 41 M.L.J. 608 : (1921) M.W.N. 833 : 15 L.W. 18 : 30 M.L.T. 1 : A.I.R. 1922 Mad. 17 has been relied on. But that was quite a different case. The plaintiff there was suing for a declaration that he was entitled to joint possession of the suit property as a co-trustee and for an account from the defendants. The Full Bench ruled that the suit did not come within the scope of Section 92. Kumaraswami Sastri, J., approved of the opinion expressed by Sir John Wallis in an unreported case that the section governed suits for the vindication of the rights of the public in public charitable trusts and had no application to emits for the vindication of the rights of management by hereditary trustees or to disputes inter se as to their terms of management. And the learned Judge himself emphasised this view by pointing out that the public had no interest in the assertion of personal claims by one trustee against another. Indeed, Section 92 reflects the principle upon which the Attorney-General's right in England to interpose on behalf of charitable trusts is founded. It is that the Crown as parons patriae superintends the administration of public charities, and for that purpose acts by the Attorney-General: see Tudor on Charities, 5th Edition page 187.
7. Mr. Sesha Ayyangar has also sought assistance for his contention from the order of reference made by Sir John Wallis in Saminatha Pillai v. Sundaresa Pillai 14 L.W. 238 : 62 Ind. Cas. 911 : 29 M.L.T. 267. That was a suit in which a temple trustee sued a kattalaidar to enforce the performance of his duties under a trust. The learned Chief Justice expressed the opinion that Section 92 was applicable to the suit, and his opinion was upheld by a Full Bench. But he suggested that the section would not deprive the plaintiff of any separate cause of action he might have. That suggestion conforms with what was said by Kumaraswami Sastri, J., in the later Pull Bench case to which reference has already been made. It does not assist the plaintiff in the present case, who has founded his suit upon an alleged breach of trust by the trustee of a public religious trust and seeks as a consequent relief the taking of an account. This brings it within the scope of Section 92 as interpreted by their Lordships in Abdur Rahim v. Mahomed Barkat Ali 55 I.A. 96 : 108 Ind. Cas. 361 : 9 P.L.T. 65 : I.L.T. 40; Cal. 19 : A.I.R. 1928 P.C. 16 : 27 L.W. 339 : 38 C.W.N. 482 : 26 A.L.J. 464 : 54 M.L.J. 609 : 48 C.L.J. 55 . Their Lordships said:
It is urged broadly on behalf of the respondents that all suits founded upon any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought must be brought in accordance with the provisions of Section 92, The short answer to that argument is that the legislature has not so enacted, If it had so intended, it would have said so in express words, whereas it said, on the contrary, that only suits claiming any of the reliefs specified in Sub-section 1 shall be instituted in conformity with the provisions of Section 92, Sub-section 1.
8. And their Lordships laid it down that the effect of the amendment introduced into the section by Sub-section 2 was that a suit founded upon a breach of such public trust, which prayed for any of the reliefs mentioned in sub Section 1 could only be instituted in conformity with its provisions.
9. The question, therefore, whether a suit falls within Section 92 depends, not upon the character in which the plaintiff sues, but upon the nature of the reliefs sought. This view is supported by the opinion of Sundaram Chetty, J. in Krishna Ayyangar v. Alwarappa Ayyawgar 63 M.L.J. 703 : 140 Ind. Cas. 197 : 36 L.W. 633; Ind. Rul. (1933) Mad. 829 : (1932) M.W.N. 1310 : A.I.R. 1933 Mad. 70. If the suit is in respect of an alleged breach of a public charitable or religious trust and for any of the reliefs specified in Sub-section 1 of Section 92, the Advocate-General's sanction 'is necessary to its institution.
10. Applying this test to the case before us there is no doubt that it could not be instituted without that sanction, and that it was on that account properly dismissed by the District Munsif. The appeal is allowed with costs here and in the lower Court. The order of the Subordinate Judge that plaintiff should get a refund of court-fee on his memorandum of appeal is set aside.
11. I agree.
Pandrang Row, J.
12. I agree.