SUPREME COURT OF INDIA

Before:- R.S. Bachawat, J.M. Shelat and V. Bhargava JJ.

Civil Appeal No. 767 of 1964. D/d. 4.5.1967.

Narain Lal and another - Appellant

Versus

Seth Sunderlal Tholia Jorhi (dead) and others - Respondent

For the Appellant :- Mr. Gopi Nath Kunzru and Dr. W. S. Barlingay, Senior Advocate, (Mr. Ganpat Rai, Advocates.

For the Respondent Nos. 3, 4, 5, 7, 12, 13, 15, to 18, 21, 23 and 24:- Mr. C. B Agarwala, Senior Advocate, (Mr. K. K. Jain and H. K. Puri and Miss Uma Mehta, Advocates.

Civil Procedure Code, 1908 Section 92(1) Sanction under - Nature and effect of - It is a joint authority - Sanction given to several persons one of them dies before institution of the suit - Suit by remaining persons is incompetent. AIR 1940 Lahore 356. Overruled.

[Paras 4 and 5]

Cases Referred :-

Bhagavannarayana v. Perumallacharyulu, 29 Mad LJ 231: (AIR 1916 Madras 762.

Pitchayya v. Venkatakrishnamacharlu, ILR 53 Madras 223.

Sibte Rasul v. Sibte Nabi, ILR 1943 Allahabad 112.

Venkatesha Malia v. Rammapallia Ramaya, ILR 38 Madras 1192.

Mt. Ali Begam v. Badra-ul-Islam Ali Khan, 65 Ind App 198.

Raja Anand Rao v. Ramdas Daduram, 48 Ind App12.

Sheo Ram v. Chand, AIR 1940 Lahore 356.

JUDGMENT

Bachawat, J. - 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 Section 92 of the Civil Procedure Code. 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 Section 92 of the Civil Procedure Code, 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.

2. A suit claiming any of the reliefs specified in sub-section (1) of Section 92 of the Civil Procedure Code in respect of a trust for public purposes of a charitable or religious nature may he instituted by the Advocate General or "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General", and save as provided by the Religious Endowments Act, 1863 and certain other laws, no suit claiming such reliefs in respect of any such trust can be instituted except in conformity with sub-section (1) of Section 92. 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 suit. The question is whether the suit is brought in conformity with Section 92(1).

3. The decided cases show that a suit under Section 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 maintainable. In Bhagavannarayana v. Perumallacharyulu, 29 Mad LJ 231: (AIR 1916 Madras 762 (1)) where the sanction was given to four persons and two of them alone brought the suit 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 v. Venkatakrishnamacharlu, ILR 53 Madras 223, where the sanction was given to three persons, the Court held that the suit instituted by two of them was invalidity brought and the defect could not be cured by impleading the other person as a defendant. In Sibte Rasul v. Sibte Nabi, ILR 1943 Allahabad 112, where four persons obtained the sanction 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 delivery of the judgment. We may add that in Venkatesha Malia v. Rammapallia Ramaya, ILR 38 Madras 1192, where the sanction to sue under Section 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.

4. 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, "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 App12, 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 (supra):

5. In Sheo Ram v. Chand, AIR 1940 Lahore 356, the sanction of the Collector to bring a suit under Section 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 (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 (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 Collector.

6. In the result, the appeal is dismissed without costs

Appeal dismissed.