NARAIN LAL & ORS.

SUNDER LAL (DEAD) & ORS.

May 4, 1967 .

[R. S. BACHAWAT, J. M. SHELAT AND V. BHARGAVA, JJ.J lJ

Code of Civil Procedure (Act 5 of 1908), s. 92- Per111issio11 of Advocate-Ge11eral for fili11g suit-Permission give11 •fo four perso11s- 011e dies-Surviving three whether can file suit without obtalni11g fresh pennission.

Four persons obtained the consent of the Advocate-General of Rajasthan to institute a suit against the respondents under s. 92 of the Code of Civil Procedure. Shortly thereafter one of the said four persons died and the suit was instituted by the three survivors.

On the preliminary issue whether the suit filed by three persons, when the permission had been given to four, was maintainable, the trial court held that it was.

The High Court, however, in revision held the suit not to be maintainable.

Appeal was filed in this Court by special leave.

 HELD : An authority to sue given to several persons without more is a joint authority and must be exercised by all jointly, and a suit by some of them only i~ not competent. When sanction in the present case

was given to four peisons and one of them died before the institution of the suit, a suit by the remaining three was incompetent. Fresh sanction must be obtained by the survivors for the institution ofthe suit. [918D-E,

~19Bl

Muddala Blianavan11araya11a \'.

Jladapa/li Perunwl/aclzaryulu, 29 M.LJ. 231, Pitclwyya & Anr, v. Venkarakris/111amacharlu & eleven Ors. 1.L.R. 5; Mad. 223, Sible Rasul v. Sibte Nabi & Ors. I.L.R. (1943) All 112 Venkc; tesha Malia v.

B. Ramaya Hegade and twelve Ors.

I.L.R. 38 Mad. 1192, Musammat Ali Begam v. Badr-11/-Js/am Ali Khan, L.R. 65 I.A. 198, Raja Anand Rao v. Ramdas Dad11ram, L.R. 48 I.A. 12 and Sheu Ram v. Ram C/iand & Ors., A.I.R. 1940 Lah. 356, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 767 of 1964.

Appeal by special leave from the judgment and order dated August 14, 1961 of the Rajasthan High Court in D. P. Civil Misc. Application No. 128 of 1960.

Gopi Nath Kunzru, W. S. Barlingay and Ganpat Rai, for the appellant.

C. B. Agar1m/a, K. K. Jain, H. K. Puri and Uma Mehta, for respondents Nos. 3, 4, 5, 7, 12, 13, 15-18, 71, 23 and 24.

The Judgment of the Court was delivered by

Bacbawat, J.

On September 10, 1955, Narain Lal, Moo!

Chand Mangilal and Kesharichan'd obtained the consent in writing of 'the Advocate General, Rajasthan to institute a suit against

r F

the respondents under S. 92 of the Code of Civil Procedure. The consent was in these tenns :

"For the reasons detailed above I grant pennission to the applicants Sarvashri ( 1) Narainlal,

(2) Moo!

Chand, ( 3) Mangilal and < 4) Seth. Kesharihand !or filing suit against the opposite parttes 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 S and 7 of the draft plaint filed by them before me."

Shortly thereafter Mangi Lal died.

On !Vlarch 6, ~956, _Narain Lal Moo! Chand and Kesari Chand instituted a suit agamst the respondents under S. 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public caritable tru?t for the benefit of the Shwetambar Sangh of the Jam commumty 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 foilowin_g preliminary issue :

"Whether the suit is not maintainable on the strength of the permission obtained by the plaintiffs along with Mangi Lal who died prior to the institution of the

suit ?"

The tria.1 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.

A suit claiming any of the reliefs specified in sub-s. ( 1) of S. 92 of the Code of Civil Procedme in respect of a trust for public purposes of a charitable or religious nature may be institutd by te Advocate-General or "two or more persons having

a~ mterest m the trust and having obtained the consent in writing of the Advocate-General", and sae as provided by the Religious Endown:ents. Act 1863 and certam other laws, no suit claiming ; uch reliefs. 111 espect of any such trust can be instituted except

111 conformity with sub-s. (I) of S. 92.

In the present case four persons obtai~d the necessary sanction of the Advocate General, one. of them died. before the suit was filed, .and the remaining three instituted te si.!H The question is whether the suit is brought n1 conformity with S. 92 (1).

The decided cases show that a suit under s. 92 must be b!ought by all the persons to whom the sanction of the Advocate General has been gi¥en, and a suit instituted by some of them

SUPREME COURT REPORTS

(1967) 3 S.C.R.

only is not maintainable. In Muddala Bhagavannarayana v.

A V adapalli Perumallacharyulu(') where the sanction was given to four persons and two of them alone brought the sµit alleging that the other two had been won over by the defendants and had refused to join as plaintiffs, it was held that the suit was not maintainable.

In Pitchayya and another v. Venkatakrishnama charlu and eleven others('), where the sanction was given to B three persons, the court held that the suit instituted by two of them was invalidly brought and the defect could not be cured by im pleading the other person as a gefendant.

In Sibte Rasul v.

Sibte Nabi and others('), where four. persons obtained the sane

tion. and the suit was instituted by three of them, it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of the delivery of C the judgment.

We may add that in Venkatesha Malia v.

Ramaya Hegade and twelve others(') where the sanction to sue under S. 18 of the Religious Endowments Act 1863 was given by the district judge to two persons, it was held that only one of them could not institute the suit.

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 Musammat Ali Begam v.

Badr-ullslam Ali Khan("), "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( 6), 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 Musammat Ali Begam v. Badr-ul-lslam Ali Khan(•).

In Shea Ram v. Ram Chand and others(1), 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 sutt. Skempg, J. held that in view of the two Privy Council rulings the suit was validly instituted.

But he erroneously as$Ullled that in Musammat Ali Begam v. Badr-ul I slam Ali -Khan ( •) it was held that where the sanction had been given to three persons, a suit by two of them only was validly

(I) 29 M.LJ. 231.

(2) I.LR. 53 Mad. 223. '.3) I.L.R. (1943) All. 112.

(4) I.LR. 38 Mad.1192.

(5) l.L.R. 65 I. A. tn::

(6) L.R. 48 I.A. 12.

(7) A.l.R. 1940 Lah. 356.

instituted.

From the report of Raja Anand Rao v. Ramdas Daduram ( 1), it is not clear whether all the persons to whom the sanction was given brought the suit, and the wint 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 theremaining 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 Collector.

In the result, the appeal is dismissed without costs.

G.C.

Appeal dismissed.

(I) LR. 48 l.A. 12~-- L9Sur.CI 167-1;