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Budree Das Mukim Vs. Chooni Lal Johurry and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
Decided On
Reported in(1906)ILR33Cal789
AppellantBudree Das Mukim
RespondentChooni Lal Johurry and ors.
Cases ReferredJamaluddin v. Mujtaba Husain
civil procedure code (act xiv of 1882) sections 10, 589 - public religious trust-advocate-general--consent of--section 529 not applicable in case of infringement of an individual right, or as against strangers, alienees from trustee and trespassers--trustee de son tort--meaning of phrases 'direction of the court is necessary for the administration,' and 'such further or other relief' in section 539--nature of relief--section 539 not mandatory or restrictive, but enabling, permissive and cumulative--religious endowments act (xx of 1863) section 14. - woodroffe, j.1. this is an application by the defendants that the suit should be dismissed with costs on the ground that it is one within the terms of section 589 and is not maintainable, no consent of the advocate-general to its institution having been previously obtained.2. the discussion of a preliminary objection as to the form of the application became unnecessary, as learned counsel for both, sides agreed to treat the matter as though it had come before me for settlement of issues.3. the claim is alleged to be demurrable. in. the determination of an objection of this nature the facts must be taken and accepted as they appear in the plaint.4. as there stated, the plaintiffs are members of the sitambari-sect of the jain community at calcutta, who claim as such to be interested in the.....

Woodroffe, J.

1. This is an application by the defendants that the suit should be dismissed with costs on the ground that it is one within the terms of Section 589 and is not maintainable, no consent of the Advocate-General to its institution having been previously obtained.

2. The discussion of a preliminary objection as to the form of the application became unnecessary, as learned Counsel for both, sides agreed to treat the matter as though it had come before me for settlement of issues.

3. The claim is alleged to be demurrable. In. the determination of an objection of this nature the facts must be taken and accepted as they appear in the plaint.

4. As there stated, the plaintiffs are members of the Sitambari-sect of the Jain community at Calcutta, who claim as such to be interested in the maintenance of the Jain temple situate at 139 Cotton Street, as also in the worship of the Thakurs there kept.

5. The plaintiffs soy that the temple was established by the members of their sect and that the appointment of trustees of the temple rests with such members; that they have been in fact appointed as trustees by their community and authorized to take charge of the temple and its properties. They further say that' the defendants, who claim to be trustees by virtue of an alleged appointment made by the late trustee, Heera Lall Johurry, are not trustees, but are trespassers. They deny in the first place that Heera Lall Johurry in fact appointed the defendants to be trustees and they further charge that. If he did so, it was without authority on his part, as the power of appointing trustees was vested in the community alone. They state that they have demanded possession of the defendants, who are now in charge under their claim to be trustees, but that the defendants have refused it.

6. Upon these facts, the plaintiffs institute this suit in three titles, 'First in their personal capacity as trustees of the temple. Secondly, they sue, with leave under Section 30 of the Code, on behalf of themselves and other members of the Sitambari Jain, community of Calcutta. Thirdly, they sue in their individual capacity as members of such community.

7. Two sets of relief are claimed in the plaint. The first, which I may call, the primary relief and the second the alternative relief in the event of their failing to establish their claim to the first. They seek under the heading of primary relief that it may be declared that the defendants are not trustees of the temple and its properties and that the plaintiffs are such trustees (Clause b), that the defendants may be ordered to make over possession of the temple and its properties to the plaintiffs as such trustees (Clause c), and for further relief ancillary to that mentioned (Clauses e, g, h and i).

8. The plaintiffs, however, go on to pray as an alternative case that, in the event of the Court being of opinion that their appointment as trustees is not valid, then newtrustees may be appointed and that the defendants be directed to make over possession to such new trustees (Clause d), that, if necessary, a scheme may be framed for the management and conduct of the temple and properties (Clause f), and for further relief ancillary to that mentioned (Clauses e, g, h, and i).

9. It is to be observed that if the plaintiffs succeed in establishing their case that they are trustees, then the alternative reliefs sought in Clauses d and f of the prayer of the plaint become unnecessary; for, if they be held to be trustees, there is no necessity fur the appointment of new trustees nor for a scheme nor for the administration of the trusts, which will then be in their hands as such trustees.

10. The defendants deny that the appointment of trustees rests, as alleged, with the community and assert that, according to the prevailing custom, the future trustee of the temple is appointed by the trustee for the time being before his death and that in accordance with such alleged custom they were in fact appointed by the admitted late trustee Hira Lall Johurry and are thus entitled to possession and management of the temple and its properties. In short, the contest on this point is as to which party is entitled to be trustee.

11. They then take the objection on which this application is founded.

12. On behalf of the defendants, it has been argued that the case comes within the terms of Section 539 and that that section is mandatory: that in other words the present suit being of the character mentioned in this section must be brought in accordance with its provisions and not otherwise.

13. For the plaintiffs it has been contended that this suit and in any event that portion of it, which seeks the primary relief, to which I have referred, does not come within this section, that if it does, the section is not mandatory, but enabling and permissive; in other words that, apart from any individual right of suit, it is open to all interested to jointly sue, or to one or more persons to institute a representative suit under Section 30 of the Code, or to two or more persons to sue under Section 539 with the consent of the Advocate-General.

14. The case law upon this, as upon several other matters dealt with by this section, is conflicting.

15. It has been held, on the one hand, that this section is mandatory. See Tricum Dass Mulji v. Khemji Vullabh Das (1892) I.L.R. 16 Bom. 626, 628, Lutifunnissa Bibi v. Nazirum Bibi (1884) I.L.R. 11 Calc. 33, 36 and see Sulbayya v. Krishnai (1890) I.L.R. 14 Mad. 186, 221, 222, Sayad Hussain Mian v. Collector of Kaira (1895) I.L.R. 21 Bom. 48, 50, and see Sajedur Raja v. Baidyanath Deb (1892) I.L.R. 20 Calc. 397, 408, 409.

16. On the other hand, it has been held that the section does not take away pre-existing rights or remedies and that like Section 14 of Act XX of 1863 (the Religious Endowments Act) it is merely permissive and enabling (see Sathappayyar v. Periasami (1890) I.L.R. 14 Mad 1, 15; Thackersey Deuraj v. Harbhum Nursey(1884) I.L.R 8 Bom 432, 451, 452; Subbayya v. Krishna (1890) I.L.R. 14 Mad. 186, 221, 222 and see Sajedur Raja Chowdhry v. Gour Mohun Bass Baishnav (1897) I.L.R. 24 Calc. 415, 415, 416 and Nellaiyappa Pellai v. Thangama Nachiyar I.L.R. 21 Mad. 406.

17. In the latter view, the first thing to be ascertained is whether the suit comes within the scope of the section. If it does not, then no question as to its mandatory character arises. If, however, the suit is one upon a cause of action and for relief mentioned in the section, then it is to be determined, whether that particular suit would have lain prior to the enactment of the section. If it would have so lain, it will lie now. This is a question of substantive law and if that law affirms the right of suit, the latter may be instituted in the ordinary jurisdiction and as so instituted will be governed by the ordinary procedure. If it would not have lain, then it is obvious that the suit must be instituted according to the provisions of this section--that is with sanction and in the High Court or District Court or not at all.

18. In my opinion the section is not mandatory as contended for on behalf of the defendants.

19. It has been pointed out that this section did not, in respect of removal of trustees, create a new and special jurisdiction: Sajedar Raja Chowdhry v. Gour Mohun Bass Baishnav (1897) I.L.R. 24 Calc. 415,415,416. The equitable jurisdiction of the Supreme Court over charities and of the High Court, its successor, was complete and no amendment of the law was required. Though the Mofussil Courts in their character as Courts of Equity gave relief in matters of public trust, the extent and nature of their jurisdiction was in some respects doubtful, as for instance whether relief could he given, where no breach of trust was alleged; see Kali Churn v. Golabi (1878) 2 C.L.R. 128, 131 whether a plaintiff might seek the appointment of new managers when there was merely a case of vacancy. Subbayya v. Krishna (1890) I.L.R. 14 Mad 199, 201, and whether the Court could order a scheme to be framed; see Ganapati v. Savithri (1897) I.L.R. 21 Mad. 15. Other relief, however, which it had been held comes within this section might always have been obtained. So numerous cases establish the right of a founder of an endowment or his heirs to enforce the due performance and rectify abuses of the trust, to remove the old and appoint a new trustee, to sue to set aside alienations by the trustee, and to recover trust property for the trust.

20. Similarly it has been held, though there is some conflict on the point, that worshippers may apart from suits, which are not within the section, to enforce some purely personal and individual right such as that of free access for worship : Jawahra v. Akbar Hussain (1884) I.L.R. 27 All. 178, Anundrav v. Shankar (1883) I.L.R. 7 Bom. 323, Venkatachalapati v. Subbarayadu (1890) I.L.R. 13 Mad. 293, Kalidas Jivram v. Gor Porjaram (1890) I.L.R. 15 Bom. 309, Vengamultha v. Pandareswara (1882) I.L.R. 6 Mad. 151, Subbarayadu v. Asanali Sheriff (1899) I.L.R. 23 Mad. 100, note sue to rectify mal administration of the trust restraining a breach of trust restoring possession to the trust, seeking an account and removing old and appointing new trustees. The cases on this point will be found collected in Mr. Iyer's useful work on Hindu endowments, to which I have been referred (See p. oclxviii, et. seq.) So much for the nature of relief, which might have been, given independent of this section.

21. Then as regards parties in the Presidency Towns, it was-always competent to the Advocate-General to initiate proceedings in matters of public trust. If, further, all persons interested joined, they were always competent to maintain a suit for the removal of a trustee : Sajedar Raju v. Gour Mohun (1897) I.L.R. 24 Calc. 408, 425.

22. Then has this section done away with or affected rights of suit, which existed prior to and independently of it, I think not. If an individual could have sued before, he can, in my opinion, do so now. If all persons interested join, or a representative suit is brought under Section 30, the jurisdiction of the ordinary-Courts, in cases where it existed before, still continues: Subbayya v. Krishna (1890) I.L.R. 14 Mad. 209.

23. That this is so must, apart from judicial precedent, appear from a consideration of the two following circumstances: Firstly, the Code is one of procedure. Presumably therefore it does not take away or affect existing substantive rights, unless it says so. Secondly, the section does not say so. To support the contrary contention, it would have to be read as if the words 'but no other person or persons' were inserted between the words 'Advocate-General' and 'may institute.' That is, that no person, but the Advocate-General or a public officer or two persons with their consent, can sue in the case of an alleged breach of trust or where directions for administration are necessary for the relief mentioned in the section.

24. Nextly, there is authority the other way. It has thus been held that the right of a founder or his heirs to sue is not affected by this section. Sathappayyar v. Penasumi (1890) I.L.R. 14 Mad. 1, 15, Sheoratan Kunwari v. Ram Pargash (1896) I.L.R. 18 All. 227, 232, and that a general manager is entitled to sue independently of it, the Court observing that it did not think that such a light was intended to be affected by this section, for. if it were, the lights, which existed prior to it would be seriously restricted, and it was difficult to believe that the Code intended to restrict special rights of the character in question, Nillaiyappa v. Thangama (1897) I.L.R. 21 Mad. 406. In my opinion, on the same principles, such suits as were permitted to worshippers before the enactment of this section are not restricted by it. Of course, in all such cases the question would have to be determined, whether there was a right of suit existing prior to the Code of 1877. If there was none, the question under discussion does not arise.

25. I think the argument addressed to me by learned Counsel for the plaintiffs is sound, namely, that the section is not restrictive, but cumulative in its effect. Its action is shortly this. As regards parties it confers a right on certain persons, who had none before, namely, the Collector or other public officer such as the Legal Remembrancer in Allahabad. Outside the Presidency Towns there was originally no public official, who could in all such cases take action : Rangasami v. Varadappa (1894) I.L.R. 14 Mad. 465, 466. It is therefore entirely enabling as regards such persons. As regards the general public interested, it is enabling in this sense that two persons may now sue, where it would have been necessary before that all should sue or that some should obtain leave to sue on behalf of the rest. To this special privilege it annexes a condition to prevent wasteful suits in that it requires that sanction should be obtained. Then, as regards relief, it either confers or makes clear the jurisdiction of mofussil Courts to grant certain relief. Thus jurisdiction may now be exercised whenever the direction of the Court is necessary, notwithstanding that there may have been no breach of trust: Raghubar Dial v. Kesho Ramanuj Das (1888) I.L.R. 11 All. 18, 22. Appointment of trustees may be made in cases of mere vacancy, and a scheme may be framed.

26. It is not, however, necessary to dispose of this case on this ground, for no question of the mandatory character of the section arises, unless the suit is of the character mentioned in it.

27. It is of course admitted that the trust is a public one. But, the section further assumes that the suit is a representative one brought for the benefit of the public and to enforce its rights upon a cause of action alleging a breach of trust or necessity for directions for administration against a trustee and for the particular relief mentioned.

28. It has been contended that the section does not apply as the defendant is a mere trespasser and not a trustee.

29. The opening words of the section imply the existence of a trustee, who is alleged to have been guilty of the breach of trust referred to, Subbayya v. Krishna(1890) I.L.R. 14 Mad. 186, 190.

30. The plaint must allege that the defendant is a trustee, and if that is denied by him it must be established on the evidence.

31. It is on this principle viz., that the suit contemplated by the section is directed against trustees, that it has been held that as against strangers it does not apply: Kazi Hassain v. Sagun Balkrishna (1890) I.L.R. 24 Bom. 170, 181 such as alienees from the trustee, Lakshman Bass Parashram v. Ganpatrav Krishna (1884) I.L.R. 8 Bom. 305, Sheoratan Kunwari v. Ram Pargash (1896) I.L.R. 18 All. 227, 232, Hussenni Begam v. The Collector of Muradabad (1897) I.L.R. 20 All. 46, 49, Kazi Hassan v. Sagun Balkrishna (1890) I.L.R. 24 Bom. 170, 181, Budh Sing Dudhuria v. Niradbaran Roy (1905) 2 C.L.J. 431, 439, or trespassers, Vishvanath Gobind Deshmane v. Rambhat (1890) I.L.R. 15 Bom. 118, Augustine v. Medlycott (1897) I.L.R. 15 Mad. 241, 216, Strinivasa Ayyangar v. Strinivasa Suami (1892) I.L.R. 16 Mad. 31, 32, 33, Shri Dhundiraj Gonesh Deb v. Gonesh (1893) I.L.R. 18 Bom. 721, 733, Muhammad Abdullah Khan v. Kallu (1899) I.L.R. 21 All. 187, 188.

32. It has doubtless been held in one case that, where there is a claim for administration of trust, which falls within the section, a claim to eject an alienee may be joined with it: Sajedur Raja Chowdhri v. Gour Mohun Das Baishnav (1897) I.L.R. 24 Calc. 418. But the latter claim does not in my opinion come within the scope of the section and is open to the charge of misjoinder, and the decision has been dissented from in a later case, Budhsingh Dudhuri; v. Niradbaran Ray (1905) 2 C.L.J. 431, 439, with which I agree.

33. There is no doubt but that claims by trustees against persons, who are strangers to the trust and who set up a title hostile thereto, such as alienees and mere trespassers holding adversely thereto, are not within the section.

34. It has been argued therefore on behalf of the plaintiffs that the defendants, who the plaintiffs deny to be trustees, but are now occupying that position, are trespassers and that therefore and on that ground this section does not apply. But it is to be noted that the defendants do not claim adversely to, but in fact recognise, the trust under which the plaintiffs themselves claim. In fact the only dispute is as to who is the trustee of that trust. The defendants are now occupying that position and carrying-out the trust, though the plaintiffs allege (and it may prove to be the fact) they are doing so wrongly and without title. But a person, who recognises the trust and has assumed, though it may be without authority, the right to administer and in fact administers the trust by virtue of his alleged title as trustee, stands on a different footing from that of a mere trespasser. A trustee may be such de jure, or de facto. A person who, without title, chooses to take upon himself the character of a trustee becomes a trustee de son tort. He is liable to account for what he has done and received, while so acting and cannot be heard to say for his own benefit that he had no right to act as trustee (see Grodefroi on Trusts, second edition, p. 30).

35. Though a trustee de son tort and a constructive trustee have been used as synonymous terms, Jugul Kishore. v. Lachman Bass Raghu Nath Dass (1899) I.L.R 23 Bom. 659, 664 both in the case cited and in the argument addressed to me. the two are not, in my opinion, the same thing. There cannot be both an express and a constructive trust in respect of the same subject-matter. There may be, as here, an express trust admitted by both the plaintiffs and the defendants. Both may, as here, claim to be trustees, though only one under the circumstances can in fact have a title. If in fact the defendant be found to have no title, then he is a trustee de son tort of the express trust.

36. A constructive trust, to which this section also applies, is one arising not by act of the parties, but by operation of law, where a trustee gains some personal advantage by availing himself of it and through the medium of his situation as a trustee, see Lewin on Trusts, 11th edition, 190C. It is imposed on such 'a person to prevent him from holding for his own benefit an advantage gained by reason of the fiduciary relation subsisting between him and others and for whose benefit only it is his duty to act (see Grodefroi, p. 93). So if a lease were the subject-matter of a public trust, a constructive trust would arise, if a trustee renewed the lease in his own name. He would in such a case be deemed to be a trustee for those interested in the original term, and this would be equally so, if the trustee was a trustee as of right or a trustee de, son tort, and were there a breach of such constructive trust, as by making away with the renewed lease or by not applying its profits for the purpose of the trust, there would be such a breach of trust as is referred to in the section. A suit would therefore under this section lie against a trustee of an express or constructive trust, whether such a trustee were so de jure or de son tort.

37. It does not, however, follow that, because the defendant is a trustee, a suit brought against him is necessarily within the section. Its other conditions have to be fulfilled

38. It is necessary therefore to see whether, though the suit is brought in respect of a public trust and against a person who according to the case of the plaintiffs appears to be a trustee de son tort, it is in other respects within the scope of the section.

39. It is only necessary at present to consider the suit as one brought by the plaintiffs on their alleged title as trustees.

40. The suit contemplated by the section is one of a representative character.

41. It is obvious that the Advocate-General, Collector or other public officer can and do sue only as representing the public and if, instead of these public officers, two or more persons having an interest in the trust sue with their consent, they so sue under a warrant to represent the public as the objects of the trusts; see Lakshmandas Roghunath Dass v. Jugal Kishore (1896) I.L.R. 22 Bom. 216.

42. It follows from this that when a person or persons sue not to establish the general rights of the public, of which they are a member or members, but to remedy a particular infringement of their own individual right, the suit is not within or need not be brought under the section.

43. Instances of the enforcement of personal individual rights (other than suits to enforce a personal right of access for purposes of 'worship to which I have referred) will be found in those cases, which hold that, where the suit is brought to enforce the personal claim of the plaintiff to be a tiustee, Vishvanath v. Rambhat I.L.R. 15 Bom. 152, Manijan Bibi v. Khadem Hossain (1904) 9 C.W.N. 151, S.C. : I.L.R. 32 Calc. 273., or to be a co-trustee, Miya Vali Ulla v. Sayed Bava (1896) I.L.R. 22 Bom. 496, 499, or to vindicate the right of management in the case of obstruction offered to one vested with and actually exercising the right of management at the date of suit, Navroji Manekji v. Dustur Khursedji (1903) I.I.R. 2S Bom. 20, 54 or to enforce a right to see that certain trusts are managed by persons entitled to manage them, Gyana v. Kandasami (1887) I.L.R. 10 Mad. 375, 506, it is not within the section.

44. The parties in such suits, as here, sue to enforce their personal rights as regards the trusteeship. Here there is a contest between two sets of persons as to who are the lawful trustees, both claiming to be such, and the decisions cited, which hold that such cases are not within the section, are directly in point.

45. In my opinion the present suit, so far as it is brought by the plaintiffs in their individual capacity as trustees to enforce their individual claim to be such trustees of the temple in suit, is not within the scope of the section.

46. The public may be interested in seeing that their alleged appointees hare the administration of this trust, but this right of the public and of the plaintiffs, qua members of that public, is not the same as the right of the plaintiffs considered not as members of the public, but as trustees suing to enforce their own personal right of management.

47. Secondly, there is no alleged breach of any express or constructive trust, and no directions are necessary for the administration of the trust.

48. It has been said that there was a breach of trust on the part of the last admitted trustee, Heera Lall Johurry, in making the alleged appointment of the defendants. The factum of that appointment is denied, but, apart from this it is quite clear that that is not any portion of the cause of action in this suit. It might have been a cause of action in a suit brought against Heera Lall Johurry, but so far as the present suit is concerned, the fact of the appointment has no relevancy beyond this, that it is the title under which the defendants claim to hold. The actual cause of action, in respect of which this suit is brought, is the assertion of the defendants acting under that claim of title to be trustees of this endowment and their refusal to give possession to the plaintiffs, who claim to be the trustees appointed by the community, to which they belong.

49. Nor so far as the suit is brought on the title of the plaintiffs as trustees, is the direction of the Court necessary for the administration of the trust. No question of such a kind arises, unless and until the plaintiffs fail to make out their claim to be trustees. If they succeed they will administer the trust themselves.

50. This circumstance distinguishes the present case from the decision cited by learned Counsel for the defendants, in which it was held that parties, who do not themselves claim to be trustees, but, who allege that a trusteeship is vacant, may sue under this section persons wrongfully claiming to be or acting as trustees for an order appointing new trustees: Neti Rama Jogiah v. Venkata Charulu (1902) I.L.R. 26 Mad. 450. The section was held to apply in that case as it was one where in the opinion of the Court the direction of that Court was deemed necessary and the relief sought was that mentioned in the section, viz., the appointment of new trustees.

51. That case is entirely distinguishable from the present one. The plaintiffs, in the case cited, did not themselves claim to be trustees. They further alleged that the defendant was not a trustee. The case therefore, which was made, was that the trusteeship was vacant and if the plaintiffs in that case succeeded in establishing the point taken by them, it necessarily followed that new trustees would have to be appointed and the trust would have to be administered. In the present case, however, the plaintiffs claim to be trustees, and, if they succeed in establishing that claim, there is no necessity for administration by way of any of the reliefs, which are mentioned in this section.

52. It has been argued that the case is one in which the 'direction of the Court is necessary for the administration' of the trust in that a question as to who is entitled to represent a trust, comes within those words. I do not think this is so. The directions, which are referred to in this section, are such as are necessary for the carrying out of the trust and as are given to a trustee, either the existing trustee where there is one, or the new trustee, where one is to be appointed. The nature of the reliefs expressly mentioned shews what is meant by the words 'deemed necessary for administration of any such trust.'

53. Lastly, although some or even all the other elements stated in the section are found to exist, the suit will not be within it, unless the relief sought therein is that which is expressly or impliedly mentioned in the section. So, although suits have been otherwise within the section, the Madras High Court, though not the other High Courts, have held that a claim for removal of a trustee is not within the purview of the section.

54. It has, however, been contended that the relief sought by way of declaration that the plaintiffs are trustees comes within Clause (e) or within the words 'such further or other relief as the nature of the case may require.'

55. The contention as to Clause (e) is in my opinion unsustainable. The general clause dealing with 'further or other relief' as has been already held, Budh Singh Dudhuria v. Niradbaran Roy (1905) 2 C.L.J. 431, 438, ought to be read with the five preceding specific clauses, and the nature of the reliefs, which may be properly granted under it, is of the same character as the reliefs which may be granted under the preceding clauses. The five specific clauses are not merely illustrative, but furnish an indication [of the nature of the relief, which may be granted in a suit under this section.

56. This clause must be read with what has preceded as referring to the further relief, to which the party may be entitled, which arises out of the existence of the trust in respect of which the suit has been brought: Jamaluddin v. Mujtaba Husain (1903) I.L.R. 25 All. 631.

57. I hold that the relief mentioned does not come within this clause.

58. The suit, as I have already slated, is brought under three separate titles, (1) to enforce the individual rights of the plaintiffs as trustees, (2) to assert the rights of the class of public to which they belong, and (3) to enforce their individual rights as members of the public. The relief fought, as regards the first title, is that mentioned in prayers (b), (c), and the ancillary prayers (e), (g) and (i). This is the primary relief, which is sought. If the plaintiffs succeed in establishing their claim to this relief, no administration is necessary. Then the plaintiffs say that, if they should fail to establish their title as trustees, they are, both as representing their class and themselves as members of that class, entitled to certain other reliefs, viz., that mentioned in prayers (d), (f) and the ancillary reliefs (e), (g) and (i).

59. These sets of titles and claims for relief must be distinguished. As regards' the plaintiffs' claim as trustees and the relief sought in respect of such claim, Clauses (6), (c) and (e), (g) and (i), (so far as these three latter prayers are ancillary to the prayers in Clauses (b) and (c)) I am of opinion that the leave of the Advocate-General was not necessary for the institution of the suit, even assuming, which I hold not to he the case, that the section is mandatory.

60. I hold nothing as to the position of the suit, should the plaintiffs fail to establish their alleged rights as trustees and claim a decree for the secondary relief sought.

61. That is a matter, which must be determined, if and when it arises.

62. The application, however, which asks that the suit should be now dismissed, is refused with costs as of a hearing.

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