IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 OP(C).No. 2258 of 2011(O) --------------------------------- AGAINST THE ORDER DATED 26/03/2011 IN IA 1134/2010 IN OS.150/1999 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER: ---------------- SREE RAMANANDA ASRAM, MANNUR POST, PALAKKAD TALUK, PALAKKAD DISTRICT-678642. REPRESENTED BY ITS MADATHIPATHI SRI.SOPRAKASHANANDASWAMI, SREE RAMANANDA ASRAM, MANNUR POST, PALAKKAD TALUK, PALAKKAD DISTRICT- 678 642. BY ADVS. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): -------------------- 1. P.ASOKAN, S/O.PACHUKUTTY, PATTERI VEEDU, KARUVASSERRI, KARAPARAMBU, KOZHIKODE DISTRICT, PIN-673010. 2. RAVEENDRAN, S/O.GOPALAN NAIR, SMARANA CHICHINNIYA, MALAPARAMBU, KOZHIKODE DISTRICT,PIN-673009. R1-2 BY ADVS. SRI.BINOY VASUDEVAN SRI.R.MANIKANTAN SMT.P.G.BABITHA THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 2258/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION I.A.NO.1134/2010 IN O.S. NO.150/1999 BEFORE THE SUB COURT, PALAKKAD. P2: COPY OF THE COUNTER IN EXHIBIT P1. P3: COPY OF THE ORDER DATED 26/03/2011 IN I.A. NO.1134/2010 IN O.S.NO.150/1999 BEFORE THE SUB COURT, PALAKKAD. P4: COPY OF THE REGISTERED WILL DATED 17/12/2007 BEFORE THE S.R.O. PARALI EXECUTED BY THE FORMER MADATHIPATHI SRI. MAHESWARANANDA SWAMI. P5: COPY OF THE MINUTES NO.11/SRA/MB/2 DATED 08/05/2011. P6: COPY OF THE MATHRUBHUMI PAPER REPORT. P7: COPY OF THE MINUTES NO.2/SRA/MB/2 DATED 08/08/2010 AND MINUTES NO.3/SRA/MB/2 DATED 10/08/2010. P8: COPY OF THE NOTICE DATED 08/08/2010 SENT BY THE FORMER MADATHIPATHI SRI. MAHESWARANANDA SWAMI TO THE 1ND RESPONDENT. RESPONDENT'S EXHIBITS: R1(a):COPY OF DOCUMENT NO.77/1988 OF S.R.O. PARALI. R1(b):COPY OF THE WRITTEN STATEMENT IN O.S.NO.150/1999. /TRUE COPY/ P.A. TO JUDGE. svs “C.R.” THOMAS P.JOSEPH, J. ==================================== O.P(C) No. 2258 of 2011 ==================================== Dated this the 10th day of August, 2011 J U D G M E N T The following questions arise for a decision in this Original Petition: (1) Whether, if the plaintiffs who obtained the leave of court under Sec.92 of the Code of Civil Procedure (for short, “the Code”) either died or opted out of the suit, the suit will abate or is otherwise liable to be dismissed? (2) What is the course open to the court when the plaintiffs who obtained the leave under Sec.92 of the Code either died or opted out of the suit? (3) Whether in such a situation any other person who has an interest in the trust can seek O.P(C) No.2258 of 2011 -: 2 :- impleadment as additional plaintiff without obtaining fresh leave under Sec.92 of the Code and continue with the suit? (4) whether respondents 1 and 2 are persons having an interest in the trust so that they could be impleaded as additional plaintiffs in the suit?, and ; (5) Whether the person who has represented the first defendant - (Sreeramananda Ashramam) is competent to do so? 2. Facts necessary for a decision of the above questions are: Petitioner-first defendant, is a trust created for public purposes of a charitable or religious nature coming under Sec.92 of the Code. Two persons having obtained the leave of court instituted the suit under Sec.92 of the Code. While so, one of the plaintiffs opted out of the suit and the other expired on 26.07.2009. Respondents filed I.A. No.1134 of 2010 on 26.03.2010 claiming to be persons having an interest in the trust O.P(C) No.2258 of 2011 -: 3 :- and requesting that they be impleaded as additional plaintiffs in the suit. To that application, petitioner-trust, represented by its then Matathipathi, Maheswarananda Swami filed objection on 07.10.2010. Learned Additional Sub Judge, by the impugned order (Ext.P3) held that respondents could be impleaded as additional plaintiffs under Order I Rule 10(2) of the Code. The said order is under challenge in this proceeding. 3. Shri O.Ramachandran Nambiar, the learned counsel for petitioner has contended that since of the two plaintiffs who were granted leave under Sec.92 of the Code, one opted out and the other expired, there is no plaintiff surviving to sustain the suit. In that situation it was not open to the respondents to seek impleadment as additional plaintiffs either under Order I Rule 10 (2) or any other provision of the Code. It is contended that on the death of the surviving plaintiff, the suit abated and hence the question of impleadment of respondents does not arise. At any rate respondents are not persons having an interest in the trust (petitioner) as is evident from the counter statement filed by Maheswarananda Swami who was representing petitioner-trust where, he has contended that respondents have no interest in the trust. It is also contended by the learned counsel that though O.P(C) No.2258 of 2011 -: 4 :- respondents claimed to be members of the Grihasthashishya Committee (resident deciples' Committee - for short, “the Committee”), Maheswarananda Swami had dissolved the said Committee on 08.08.2010. As such, respondents not being persons having an interest in the trust could not be impleaded as additional plaintiffs in the suit. 4. Shri R.Manikantan, learned counsel for respondents contended that the person who is now representing petitioner has no interest in the trust and hence, is not entitled to file this Original Petition challenging the impugned order. It is contended that so far as the interest of respondents in the petitioner (trust) is concerned, even in the original written statement filed by Maheswarananda Swami in the year, 1999, he has stated in paragraph 5 that the suit is bad for non-joinder of necessary parties due to non-impleadment of persons mentioned therein who include respondents as well (serial Nos.10 and 13 in paragraph 5 of the original written statement). It is also contended by the learned counsel that in the counter statement filed by Maheswarananda Swami on 07.10.2010 in I.A. No.1134 of 2010 there is no contention raised by him that the Committee was dissolved by him on 08.08.2010 as claimed by O.P(C) No.2258 of 2011 -: 5 :- petitioner. Further contention is that since the suit is one instituted under Sec.92 of the Code after obtaining the leave of court, the suit cannot abate on the death of all or any of the plaintiffs. It is contended that since the suit is instituted by and on behalf of the class of persons who have an interest in the trust, the suit would remain alive and it is open to any person having an interest in the trust to seek impleadment as additional plaintiff within a reasonable time. It is not necessary for such person to again obtain the leave of court under Sec.92 of the Code, it is contended by the learned counsel. 5. Under Section 92 of the Code, in the case of breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where a direction of the court is deemed necessary for administration of any such trust, the Advocate General or two or more persons having an interest in the trust and having obtained the leave of court may institute a suit in the manner provided in the said provision seeking all or any of the reliefs mentioned therein. The provision was brought into the Code of 1882 in Sec.539 under which the suit could be brought either by the Advocate General acting ex officio, or by two or more persons having an interest in the trust and having O.P(C) No.2258 of 2011 -: 6 :- obtained the consent in writing of the Advocate General. The power conferred by the section on the Advocate General could, outside the presidency towns, with the previous sanction of the Local Government, be exercised also by the Collector or by such Officer as the Local Government may appoint in that behalf. It is said that the language of the section was borrowed in part from the statute of George III (52, George III, Cap. 101) known as Sir Samuel Romilly's Act (See Rangasami Naickan v. Varadappa Naickan – ILR 1894 (XVII) Madras 462 at page 467). In Veeraragava Thathachariar v. Srinivasa Thathachariar ([1912] 16 Ind. Cases 225) it is held that Sec.539 was enacted in the Code (of 1882) after the Trustees Act was passed in England and according to which the court had the power to appoint new trustees. Learned Judges in Veeraragava Thatchariar's case agreed with the decision in Prayag Dossaji Varu Mahant v. Thirumala Srirangacharlavaru ([1905] 28 Madras 319) that the Courts of Chancery had, independent of any statute the power to appoint new trustees and that Indian courts have always exercised the same powers in the matter of charities as the O.P(C) No.2258 of 2011 -: 7 :- Chancery Courts of England. In England, the ordinary mode of obtaining redress with regard to charities was by way of information given by the Attorney General. In His Majesty's Attorney General at the relation of George Westcott (informant) v. Willaim Douglas Brodie and Others (defendant) – ([1846] 4 Moores Ind. App. 190 at page 195) it is held: “What however was the nature of jurisdiction of the Court of Chancery, in matters of charity, prior to the Statute, 43 Eliz., C.4z – It is mentioned by Lord Commissioner Jeykl, in Eyre v. Countess of Shaftsbury (2 P.Will, 118), “that the right, which the King has, as pater patriae, to take care of his subjects in cases of charities, & c., falls under the direction of the Court of Chancery”. It is part of the general equitable jurisdiction ….(Lord Langdale: The question then is, whether there is a law-officer in India, properly constituted to represent the Crown) – The Advocate General is competent to represent the O.P(C) No.2258 of 2011 -: 8 :- public, by virtue of his position as principal law officer of the Government as also by the Statute, 53 Geo, 111, C.155, S.111, which authorizes the Advocate General to exhibit, in the Supreme Court, any information or informations in the nature of an action or actions at law,....”. The position of the Advocate General in India corresponded by statutory enactments to the position held by the Attorney General in England. The Advocate General acting ex officio was authorized by Sec.539 of the Code of 1882 either to bring the action on his own or permit two or more persons in writing to bring the action in the case of breach of any express or constructive trusts created for public charitable or religious purposes or whenever a direction of the court was deemed necessary for the administration of such trust. When the Code of 1908 was enacted, the provision was incorporated in Sec.92 with substantial changes. Instead of the Advocate General acting “ex officio” or granting permission to two or more persons to institute the suit Sec.92 provided that the Advocate General or two or more persons having an interest in the trust and having O.P(C) No.2258 of 2011 -: 9 :- obtained the consent in writing of the Advocate General may institute the suit. In order to remove the misconception that the word, “public” is co-ordinate with the word, 'charitable' or 'religious', the words “public purposes of a charitable or religious nature” were introduced in Sec.92, instead of the words “public charitable or religious purpose” as it occurred in Sec.539 of the Code of 1882. In the present Code, under Sec.92 the power of the Advocate General to bring the action is retained but the power to grant leave to two or more persons having an interest in the trust to bring the action is conferred on the court before which such action is to be brought. 6. The necessity of obtaining consent in writing of the Advocate General (now, the leave of court) was insisted with a view to prevent indefinite number of reckless and harassing suits being brought against the trust by different persons interested in the trust. In Ramdas Bhagat v. Krishna Prasad Tewari and others (AIR 1940 Patna 425) it was held that the suit to come under Sec.92 of the Code must be a representative one on behalf of and in the interest of the public. The suit should fundamentally be on behalf of the public for the vindication of a public right (see also Sherfuddin Sahib v. O.P(C) No.2258 of 2011 -: 10 :- Ammermigh Sahib ([1971] 84 Madras L.W. 555). 7. The Supreme Court had occasion to consider the reason for providing restrictions for a suit under Sec.92 of the Code. It was held in Madappa v. Mahanthadevaru (AIR 1966 SC 878) that “the main purpose of Sec.92(1) of the Code is to give protection to pubic trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. The object is that before the Advocate General files the suit or the court grants leave to two or more persons to do so, the Advocate General or the court as the case may be is satisfied, prima facie that a case of breach of trust or of the necessity for obtaining direction of the court is made out. 8. The question as to the fate of a suit instituted by two or more persons having obtained the consent in writing of the Advocate General (or the leave of court) when one or all except one of such plaintiff dies or opts out of the suit was always a moot question for consideration of the courts; whether, the suit in such circumstances would abate or fail or, the surviving plaintiff could continue prosecution of the suit, or not? 9. Tudball and Rafique, JJ., who decided Chhabila Ram v. Durga Prasad (1915 (28 Allahabad 681) were of the O.P(C) No.2258 of 2011 -: 11 :- opinion that the suit if brought by two persons in their capacity as members of the public interested in the trust, it is necessary for the continuance of the suit that there should be at least two plaintiffs holding sanction to carry on the suit and that if one of the two plaintiffs dies, it is open to another member of the public interested in the trust to come forward to take his place and thus prevent the suit abating but such person should also obtain the necessary sanction. That view was criticized and dissented by the Madras High Court in Parameswaran Munpu v. Narayanan Namboothiri ([1916] 40 Madras 110), the Lahore High Court in Gopi Das v. Lal Das (97 PR 1918) and the Judicial Committee in Anand Rao v. Ramdas Daduram (AIR 1921 PC 123). In Parameswaran Munpu's case, one of the two plaintiffs who having obtained the consent and brought the suit died. An additional plaintiff was added after six years of death of the (deceased) plaintiff. Answering the contention of defendant that the suit abated as the application for impleadment was not filed within the prescribed time, the court held: O.P(C) No.2258 of 2011 -: 12 :- “the court has the power to add worshipers as parties not because they are the legal representatives of the two persons who instituted the suit with the Advocate General's sanction but because they had become parties to the representative suit as soon as it was brought on behalf of all the worshipers and the court has power under Order I, Rule 10, clause (2) of the CPC to add persons as additional parties “whose presence may be necessary in order to enable the court effectually and completely to adjudicate upon the questions involved in the suit....” The Madras High Court in the above said case dissented from the view of the Allahabad High court (referred supra) that in such cases, the suit would abate and that for another person to come on record the consent of Advocate General (under Sec.539 of the old Code) was required. The Privy Council in Mt. Ali Begum v. Ali Khan (AIR 1938 PC 184) opined: “There is no provision whatsoever in the Code O.P(C) No.2258 of 2011 -: 13 :- (CPC) for recourse being had to the Advocate General or Collector during the course of a suit or of any proceeding in appeal. As sub-sec.(2) of Sec.92 sufficiently shows, the consent in writing is a condition of the valid institution of a suit and has no relevance to any other stage. When once validly instituted it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular. Their Lordships cannot accept the doctrine of Jai Lal J., in the present case that the persons who have instituted the suit with the leave of the Collector are to be deemed to be one plaintiff; nor do they see any reason why one of several plaintiffs in such a suit should not appeal on the same terms and conditions as are applicable to suits in general.” 10. In the case before the Privy Council, two out of the three plaintiffs who, on obtaining consent of the Advocate General had brought the suit, died. The Privy Council held that the suit did not become defective or incompetent. Their Lordships O.P(C) No.2258 of 2011 -: 14 :- opined that consent is a condition for institution of the suit alone and that it has no reference to any other stage of the suit (i.e., once consent is given and the suit is validly instituted). 11. In Bapiraji v. Ramachandra (AIR 1933 Madras 854) a Division Bench considered the scope of Sec.92 of the Code and the consequence of some of plaintiffs opting out of the suit. Madhavan Nair, J., wrote thus for the Division Bench: “Then it is said that two of the plaintiffs having dropped out it is not competent for one plaintiff alone to proceed with the suit under Sec.92 of the Code. This point has already been decided in this Court in H.K. Sayyad Gulam Ghouse v. Dost Mohammed Khan Sahib (AIR 1925 Madras 244) where it was held that a suit under Sec.92 CPC or an appeal arising out of such a suit does not abate on the death of one of the plaintiffs who obtained sanction for instituting the suit. It cannot therefore be said that the present suit is incompetent because there is only one person left to conduct the suit”. O.P(C) No.2258 of 2011 -: 15 :- 12. In Hashim Haroon v. Gounsalishah (AIR 1942 Sind 137) referring to Sec.92 of the Code it was held that the necessity of two persons suing is restricted to the institution of the suit. There is nothing which requires that all the plaintiffs to whom sanction is given for filing the suit should, after filing the suit continue actively to prosecute the suit. The same view was taken in Golam Rabbani v. Abdul Khahir (ILR 62 Calcutta 1132). The Division Bench held that in a suit or appeal instituted by certain set of plaintiffs or appellants with the consent of the Advocate General or Collector under Sec.92 of the Code, consent of the Advocate General or Collector to each addition of a party is not necessary as a suit under Sec.92 is not prosecuted by individuals for their own interest but as representatives of the general public interested in the endowment. In Kidar Nath Datt & Others v. Kishan Das & Others (AIR 1957 Punjab 106) it was held that in a suit under Sec.92, if the scope of the suit is substantially altered or enlarged by the addition of a new defendant, previous sanction of the Advocate General is necessary and that the scope of the suit is enlarged when there is a totally different cause of action O.P(C) No.2258 of 2011 -: 16 :- against the new defendant or when he is stated to be the real trustee. If scope of the suit remains unaltered and unchanged, no sanction is needed (for continuance of the suit) after it is validly instituted by two or more persons having obtained the leave. 13. In Pragdasji v. Ishwarlalbhai (AIR 1952 SC 143), eight out of the nine plaintiffs died pending the suit (under Sec.92 of the Code). Nobody came forward with the objection that the sole surviving plaintiff could not continue the proceeding. This circumstance was raised before the Punjab and Haryana High Court in J.S. Singh v. Charan Singh (AIR 1972 P&H 347). There, it was argued that the decision Pragdasji's case (supra) has no application since in that case there was no objection to the surviving sole plaintiff continuing with the suit. The High Court observed, referring to the said contention: “It is obvious that the objection was considered not worth raising. I therefore do not agree with Shri Mittal that the appeal has abated with the death of appellant No.1 or respondents 3 or 4 when both sides are litigating in a representative capacity”. O.P(C) No.2258 of 2011 -: 17 :- 14. The Rajasthan High Court in Suraj Narain v. Manglal (AIR 1972 Rajasthan 172) also considered the question. There, three members of the public brought a representative suit under Sec.92 of the Code after obtaining the consent of the Advocate General and one each of them died during the pendency of the suit and the appeal, respectively and their names were struck off. The appeal by the remaining member alone was found maintainable. The Supreme Court in Charan Singh v. Darshan Singh (AIR 1975 SC 371) referring to Sec.92 and Order XXII Rule 1 of the Code held that when a suit is filed in a representative capacity, death of one of the plaintiffs during pendnecy of second appeal does not abate the appeal. 15. As per Sec.92 of the Code, obtaining consent in writing of the Advocate General (as per the 1908 Code) or the leave of court (as per the present Code) is a sine qua non for the valid institution of the suit – but that condition is only for the valid institution of the suit and not for its continuance after it is validly instituted. Once the suit is validly instituted, it is a suit brought by and on behalf of the public who have an interest in O.P(C) No.2258 of 2011 -: 18 :- the trust though all of them do not actually join in the plaint. In that situation if any one of the plaintiffs who obtained the consent of Advocate General (or the leave of court as the case may be) survives, he can continue the suit. The question of abatement or failure of the suit does not arise for the reason that other plaintiffs died or opted out of the suit. Any other person who has an interest in the trust can also come on record as additional plaintiff and for that, he is not required to obtain the leave of court as provided under Sec.92 of the Code. That is the view taken in the above referred decisions except by the Allahabad High Court in Chhabila Ram's case (supra) which in the light of the wordings of Sec.92 of the Code and weight of authorities cited above, I am unable to accept. 16. The next question is whether, if after a suit is validly instituted under Sec.92 of the Code either all the plaintiffs opted out or expired, there is a failure or abatement of the suit, whether in such a situation it is open to any person having an interest in the trust to seek impleadment and proceed with the suit and if so, he needs to get the leave of court under Sec.92. I referred to the nature and character of the suit under Sec.92 of the Code as being in a representative capacity brought by and on O.P(C) No.2258 of 2011 -: 19 :- behalf of the class of people having an interest in the trust and that once leave is granted and the suit is validly instituted, it is a suit instituted by and on their behalf though all of them have not actually joined the suit. I also stated how the King of England thought it necessary to protect charities coming under the purview of the Trustees Act as Pater Patriae and the power conferred on the Attorney General to institute the suit