A GUNAMANI Vs. W R STEPHEN AND ORS

JUDGEMENT

(1.) The suit was laid by certain Christians claiming to belong to the London Mission Church seeking for a declaration that certain trust properties belonging to the London Mission were to enure only to the benefit of those Christians who belong to the London Mission and that the London Mission Christians who went over to join the Church of South India thereby became aliens, dissentitled to any right, interest or benefits of the properties referred to. The plaintiffs' further allegation in the plaint was that these defendants were in possession of the properties of the trust and that the defendants, having ceased to be members of the London Mission, were no longer entitled to be in possession. The plaintiffs sought to recover possession from these defendants together with future mesne profits.

(2.) Even before filing a written statement the defendants filed I.A. No. 125 of 1960, praying for the rejection of the plaint and the dismissal of the suit. Apparently this prayer was based on the ground that this was an action which required the sanction of the Advocate-General under Section 92, Civil Procedure Code, and, which sanction not having been obtained, the plaint should have been rejected, in limine. The learned Subordinate Judge of Nagercoil went into the question, as I have said, without calling for any written statement with regard to the status of the defendants in relation to the subject-matter of the suit, and, came to the conclusion that even though the defendants might be aliens or intruders in the sense that they have ceased to be members of the London Mission and had joined the Church of South India, the suit as prayed being only one for recovery of trust properties from the possession of persons who had no better status than that of trespassers, did not require the sanction of the Advocate-General. It is against this order that the fifth defendant in the suit has filed this Revision Petition.

(3.) On behalf of the petitioner Mr. T.M. Krishnaswami Ayyar has taken me extensively through the plaint. The plaint no doubt sets out the history of the institution leading to the acquisition of the properties and the nature of those properties as trust properties. But, nowhere has it been averred in the body of the plaint that these defendants were ever trustees or came into possession of the properties as trustees. It is somewhat surprising that if the defendants wanted to non-suit the plaintiffs for want of sanction under Section 92, Civil Procedure Code, they should have failed to take a definite stand as to their status in relation to the trust properties. They have not chosen to maintain that they are trustees. In fact, they have deliberately refrained for committing themselves in any manner whatsoever. But in so far as the question whether the sanction under Section 92, Civil Procedure Code, is necessary or not has to be answered under the present circumstances, it has to be done only on the basis of the averments in the plaint. The plaint, as I have said, does not admit that these defendants were trustees, and, if that is so, I am unable to see how in seeking to dispossess the persons who are not trustees but who are in possession of trust properties, sanction of the Advocate-General is necessary. It seems to me that the learned Subordinate Judge came to the right conclusion in holding that the suit was maintainable.