ANDAPERUMAL PILLAI Vs. SOMASUNDARAM PILLAY

JUDGEMENT

(1.) THE 1st defendant has preferred this appeal against the order of the lower court appointing a receiver to take the yield from the plaint schedule properties. THE 1st defendant is in possession of the same as a trustee of the Village. THE present suit is to remove the 1st defendant from management, to direct him to render accounts and to hold him responsible for various acts of malfeasance and misfeasance. After receiving the 1st defendant's contentions and settling the issues, the lower court on the application of the plaintiff appointed a receiver for the trust properties.

(2.) ONE of the contentions of the 1st defendant was that the suit should be dismissed, as no sanction of the Dewan, as contemplated in s. 72 of the Civil Procedure Code, had been filed for the institution of the suit. There is no doubt that the suit is filed for some of the reliefs mentioned in S. 72 C. P. C. , and it was admitted by both sides that the suit would come under S. 72. If that be so, then no suit claiming any of the reliefs specified in S. 72 could be instituted in respect of any such trust as it therein referred to except in conformity with the provisions of that Section. That was the imperative provision of S. 73c. P. C. The lower court has relied on Lexmana perumal Pillai v. Ulakanatha Pillai 1947 T. L. R. 395 to hold that S. 72 is not a prohibitory but only an enabling Section and had not done away with or affected the right of suit under O. I. R. 8 C. P. C. The law laid down in that ruling did not appear to be correct. This ruling followed an earlier ruling of this Court in Sivacharyar v. Vydianantha Pattar 4 T. L. J. 305. There was no provision in the old Civil Procedure Code corresponding to S. 73 of the present Code. This 4 t. L. J. decision was therefore, at a time when there was no provision in the civil Procedure Code corresponding to S. 73 C. P. C. S. 73 of our Code corresponds to clause 2 of S. 92 of the Indian Code. This clause 2 had been introduced into the Civil Procedure Code by an amendment of 1908. Before such amendment was introduced, some of the Indian High Courts had, as held in 4 T. L. J. 305, laid down that if steps had been taken under 0. 1 R. 8 C. P. C. then no sanction contemplated in S. 72 was necessary. But with the introduction of this clause the provision that sanction had to be taken had been made imperative so that a suit of the nature specified in S. 72 C. P. C. could not be instituted except in conformity with the requirements of the section. In our opinion, therefore, 1947 T. L. R. 395 requires reconsideration. The proper course is to refer the following question for decision by a Full Bench: Question Referred: Whether sanction of the Dewan or Head of the administration is not necessary for claiming reliefs mentioned in S. 72 C. P. C. when suit is filed for the purpose, and whether S. 73 C. P. C. does not prohibit the institution of such a suit without such sanction.

(3.) THE question arose under S. 539 of the Code of 1882 whether the section was mandatory or was only directory and enabling in its application. THEre was divergence of opinion on this point between the different High Courts in India. THE view taken by all the High Courts generally excepting that at Bombay was that the remedy provided by S. 539 was in addition to any other remedy that existed under the law for the redress of any breach in relation to a public trusts of a religious or charitable nature. In other words the section had not the effect of taking away the right that the public or a section of the public had under the pre-existing law to enforce their remedies by a suit under S. 30 of the Code of 1882 corresponding to O. I, R. 8 of the present Code. THE High Court of Bombay however held that the provision was mandatory and not merely directory and that a strict compliance with the conditions laid down in the section was necessary in all suits where any of the reliefs specified in the section was prayed for. THE specific question that often arose for decision was whether in a suit between co-trustees the sanction required by S. 539 was essential. In Trichumdass Malji v. Khimji Vullabadas (I. L. R. 16 Bombay 626) it was held that even a suit between co-trustees could not be brought except in conformity with the terms of S. 539. THE opinion was expressed in Nellayappa Pillai v. Thangamma Nachiar (I. L. R. 21 Madras 406) that the introduction of S. 539 of the Code of 1877 did not have the effect of taking away the rights then existing in the trustees. THE suit in that case was filed by the trustee of a temple to recover from the legal representatives of the deceased trustee of a special fund constituted for the benefit of the temple, which has been misappropriated by him and for the appointment of another person in his place. THE plaintiff had obtained the necessary leave to sue under S. 30 of the Old Code (corresponding to O. I, R. 8) but no sanction of the Advocate-General was obtained under S. 539. It was held that the sanction of the Advocate-General was not necessary to maintain the suit and that S. 539 was not intended to apply to persons who before its enactment had the right to take proceedings for the purposes mentioned in the section. THE question was elaborately considered in the oft-quoted judgment of Woodroffe, J. in Bundree Das Mukim v. Choomlal Johurr (I. L. R. 33 Calcutta 789) and it was decided therein that when persons sued not to establish the general rights of the public, but complained of a particular infringement of individual rights, the suit was not within the section and need to be brought under it.