Skip to content


Angrez Singh and ors. Vs. Dina Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtJammu and Kashmir High Court
Decided On
Case NumberC.M.P. No. 11 of 1982
Judge
Reported inAIR1983J& K88
ActsCode of Civil Procedure (CPC) , 1908 - Section 92
AppellantAngrez Singh and ors.
RespondentDina Nath and anr.
Appellant Advocate J.L. Sehgal, Adv.
Respondent Advocate J.S. Kotwal, Adv.
DispositionApplication dismissed
Cases ReferredRaja Anand Rao v. Ramdas Daduram
Excerpt:
- .....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, 48 ind app 12: (air 1921 pc 123) 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. see 65 ind app 198: (air 1938 pc 184) (supra).'their lordships thus categorically held in the aforesaid para that once the representative suit is validly instituted the subsequent death of one of the plaintiffs would not render the suit incompetent. mr......
Judgment:
ORDER

A.S. Anand, J.

1. This order will dispose of an application filed by one of the defendants, namely, Shri Dina Nath with the prayer that the suit be dismissed as having abated.

2. Plaintiffs Angrez Singh and four others filed a suit under Section 92, C. P. C, for the removal of the defendants from trusteeship of Shri Vinaik Misser Dharamshalla, (hereinafter called the 'Trust') and for rendition of accounts by the trustees. The plaintiffs also prayed for the appointment of some other trustworthy persons as trustees in place of the defendants to manage the properties of the said trust. The defendants, Dina Nath and Nishi Kant were the two trustees.

3. According to Dina Nath defendant, Shri Angrez Singh plaintiff 1 died on 21-12-1978, while Shri Nishi Kant defendant 2 died on 25-9-1980 and since no legal representatives had been brought on record for either Angrez Singh plaintiff or Nishi Kant defendant (deceased), the suit has abated, Mr. J. L. Sehgal, learned counsel for defendant Dina Nath, has argued that since the sanction accorded to the plaintiffs was indivisible, it was obligatory for all the plaintiffs to have continued with the proceedings and when one of the plaintiffs had died, if the other plaintiffs, wanted to carry on with the suit, they had to obtain fresh sanction and in the absence of fresh sanction, the suit could not proceed. It was also argued that the cause of action against both the defendants was one and indivisible and since one of the defendants had died, tbe suit could not proceed against the other defendant, Mr. Sehgal has relied upon Narain Lal v. Seth Sunderlal Tholia Jorhi, AIR 1967 SC 1540, in support of his submission that where one of the plaintiffs to whom sanction had been accorded along with some other persons for bringing a suit under Section 92, C. P. C. died, fresh sanction must be obtained by the survivors for continuing with the suit.

4. Mr. J. S. Kotwal, learned counsel for the plaintiffs has, on the other hand, argued that the requirement under Section 92, Civil P. C., is only to the extent that the suit must be filed either by the Advocate General or by two or more persons interested in the trust after obtaining sanction and that it is not necessary that all the persons who obtain the sanction and filed the suit must continue with the proceedings till the conclusion of the suit. Learned counsel submitted that the suit would continue, if it was properly instituted by two or more persons, even if one of the plaintiffs later on died.

5. A plain reading of Section 92, C. P. C, shows that a suit relating to public charity or Trust may be filed by either the Advocate General or two or more persons interested in the trust after obtaining the requisite sanction to institute the suit. In the present case the suit had been filed by private persons. They had obtained the requisite sanction for bringing the suit in a representative capacity. The short question which requires determination, at this stage, is whether all the persons who obtain the sanction must co-operate throughout the prosecution of the suit or that their co-operation is essential only at the 'institution' of the suit and, therefore, subsequent death of one of the plaintiffs would not render the suit as incompetent? In my opinion, the necessity for the cooperation of two or more persons to act collectively in a suit under Section 92, C. P. C., is restricted only to the stage of institution of the suit and does not stretch to the continuance of the suit once validly instituted. This is obvious from the plain language of Section 92, C. P. C. and has a valid reason behind it. Since, suits under Section 92, C. P. C., are not meant for redressal of individual grievances, the legislature put the embargo that those who wish to bring the suit under Section 92, C. P. C., must be two or more in number and they must obtain sanction before instituting the suit and must then institute the suit collectively. As a matter of fact, the judgment relied upon by Mr. Sehgal (AIR 1967 SC 1540), in fact, supports this proposition and does not advance the case of Mr. Sehgal. Para 4 of the judgment reads as follows:--

'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 Mt. Ali Begam v. Badra-ul-Islam Ali Khan, 65 Ind App 198 : (AIR 1938 PC 184) 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, 48 Ind App 12: (AIR 1921 PC 123) 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. See 65 Ind App 198: (AIR 1938 PC 184) (supra).'

Their Lordships thus categorically held in the aforesaid para that once the representative suit is validly instituted the subsequent death of one of the plaintiffs would not render the suit incompetent. Mr. Sehgal, however, relied on para 5 of the judgment to support his argument. In my opinion, however, relied on para 5 of the judgment to Mr. Sehgal, for in para 5 of the judgment, their Lordships were considering the defect at the time of institution of the suit and not subsequent thereto. Their Lordships have only held in para 5 that where sanction is granted to four persons and one of them dies before the institution of the suit, the institution of the suit by the remaining three is incompetent and fresh sanction must be obtained by the survivors for the institution of the suit. Their Lordships did not lay down, as suggested by Mr. Sehgal, that after a suit is validly instituted, the death of one of the plaintiffs would necessitate the obtaining of fresh sanction by the remaining plaintiffs even if the number of the surviving plaintiffs is more than two.

6. The view, that I have taken above, also finds support from Raja Anand Rao v. Ramdas Daduram (AIR 1921 PC 123) wherein Lord Dunedin observed:--

'There was also a point that the person who originally raised the suit and got the sanction having died, the suit could not go on, but there does not seem any force in that point either, it being a suit which is not prosecuted by individuals for their own interests but as representatives of the general public.'

7. Thus for what I have said above and in view of the settled law on the point, I bold that the death of Angrez Singh plaintiff 1 does not render the suit incompetent and that the suit does not abate on that account.

8. So far as the next argument with regard to the abatement of the suit on account of the death of Nisbi Kant defendant is concerned, only a half-hearted argument was raised by Mr. Sehgal and even otherwise there is no force in that submission. In my opinion on the death of one of the trustee defendants, a suit under Section 92, C. P. C., cannot abate because a suit under Section 92, C. P. C, is of a special nature, the purpose whereof is to protect the interests of the public in a public trust of a religious or charitable character and no individual rights or interests are required to be adjudicated. It is a settled law that to invoke the provisions of Section 92, C. P. C, three conditions must be satisfied, namely, (1) that the trust was created for public purposes of a charitable or religious nature, (ii) that there was breach of trust and a direction of the Court is necessary for the administration of such trust, and (iii) that the relief claimed is one of the reliefs enumerated in the sanction. It is, therefore, obvious that the relief which can be claimed in such a suit must be covered by the section itself. No personal liability is sought to be litigated and therefore the death of one trustee in a suit validly instituted for the removal of the trustees and for other reliefs, cannot render the suit as incompetent and the suit would not abate. Mr. Sehgal has been unable to show how the death of Nishi Kant can, in any way, render the suit as having abated, keeping in view the reliefs claimed in the suit. I, therefore, bold that the suit has not abated on account of the death of Nishi Kant, defendant who stands removed from the trusteeship by his death.

9. For all that has been said above, this application fails and is dismissed as such, The suit shall now come up for further proceedings on a date to be fixed by the Dy. Registrar.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //