Case: Narain Lal &amp; Ors Vs. Sunder Lal (Dead) &amp; Ors

1. On September 10, 1955, Narain Lal, Mool Chand, Mangilal and Kesharichand obtained the consent in writing of the Advocate-General. Rajasthan to institute a suit against the respondents under S. 92 of theCode of Civil Procedure. The consent was in these terms:"For the reasons detailed above I grant permission to the applicants Sarvashri (1) Narain Lal, (2) Mool Chand, (3) Mangilal and (4) Seth Kesharichand for filing suit against the opposite parties Shri Malilal Kasliwal and 27 other members and office holders of the executive committee Jain Atishaya Kshetra Shri Mahabir Swami Temple Chandangaon, for the reliefs detailed in Para. 28, sub-paras. 1 to 5 and 7 of the draft plaint filed by them before me."Shortly thereafter Mangi Lal died. On March 6, 1956, Narain Lal, Mool Chand and Kesari Chand instituted a suit against the respondents under S. 92 of theCode of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as a whole and for other reliefs. On March 9, 1958, Kesari Chand died. The trial Court raised and tried the following preliminary issue:"Whether the suit is not maintainable or the strength of the permission obtained by the plaintiffs along with Mangi Lal who died prior to the institution of the suit?"The trial Court held that the suit was maintainable. The High Court in its revisional jurisdiction set aside the order of the trial Court and held that the suit was not maintainable. The present appeal has been filed from the order of the High Court by special leave.

Reasoning: In the present case, four persons obtained the necessary sanction of the Advocate-General, one of them died before the suit was filed, and remaining three instituted the suit3. The decided cases show that a suit under S. 92 must be brought by all the persons to whom the sanction of the Advocate-General has been given, and a suit instituted by some of them only is not maintainable4. 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 competentFrom the report of 48 Ind App 12: (AIR 1921 PC 123) (supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate-General or Collector5. In Sheo Ram v. Chand, AIR 1940 Lah 356, the sanction of the Collector to bring a suit under S. 92 was given to twenty persons. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skemp, J. held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in 65 Ind App 198: (AIR 1938 PC 184  ) (supra) it was held that where the sanction had been given to three persons, a suit by two of them only was validly instituted.From the report of 48 Ind App 12: (AIR 1921 PC 123) (supra), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was incompetent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from thel or