VISALAKSHI AMMAL Vs. VEERAYYA RAJALIAR

JUDGEMENT

(1.) IN this revision proceeding instituted by the first defendant in the court below, i have had some difficulty in comprehending the order of the learned Subordinate judge directing the plaintiffs to elect to proceed with a part of the reliefs prayed, for in the suit, after holding that many of the averments in the plaint and several reliefs, fall within the ambit of Section 92 C. P. Code, that this suit in respect of a public religious or charitable trust is bad for lack of sanction of the Advocate general, under that provision of law. As far as I can see, a considerable part of the pleadings in the plaint does relate to alleged acts of misfeasance and malfeasance on the part of the trustee (revision-petitioner) who is the managing trustee of the trust, and to such alleged breaches of trust as will disqualify her for the office, if established. In that state of pleadings, there is considerable force in the contention of learned counsel for the revision petitioner, that the trial court should really have struck the suit off its file as bad for lack of the requisite sanction. But there is certainly authority for the view that where the reliefs sought for include other reliefs which need not be taken as within the scope of S. 92 C. P. Code, the suit,, as a whole need not be struck off the file as bad in law. It is sufficient to refer to the decision of the Full Bench in Appanna Poricha v. Narasingha Poricha, ILR 45 mad 113: (AIR 1922 Mad 17 (FB) ). A suit by a co-trustee, as in this case, for joint possession and rendition of accounts, simpliciter would not require the sanction enacted in S. 92. Where averments which would justify those reliefs and the reliefs themselves, are inextricably mingled with averments relating to misfeasance and breaches of trust by the trustee in possession, which do fall within S. 92, together with a prayer for removal of the trustee on that ground the problem is certainly difficult. Should the court strike the suit off its file, upon its substantial character, or can the court afford the plaintiff an opportunity of election of the reliefs, not vitiated for lack of sanction? Learned counsel for respondents depends upon the decision of a single Judge of the Calcutta High Court in S. K. Mitra v. H. C. Dey, for the view that because some of the reliefs cannot be granted for non-compliance of S. 92, that does not mean that the plaintiff is disentitled to obtain other reliefs, which could be sought for in an ordinary suit.

(2.) BUT the difficulty here is that a very considerable part of the pleadings does relate to the frame of the suit as against an erring trustee in charge of a public religious trust, who has become disqualified on account of mismanagement and breach of trust. There are stray averments which might justify an independent prayer for rendition of accounts to a co-trustee. There are practically no averments relating to any independent relief for possession such as the alleged exclusion of a co-trustee from management, apart from breach of trust. In this state of the pleadings in my view the only proper course, is to direct the plaintiffs to carry out suitable-amendments to the plaint, as advised, which will furnish a jural basis for the present frame of suit, namely, as against a co-trustee for delivery of possession, and rendition of accounts, apart form S. 92 C. P. C. After that is done, the revision petitioner should, of course, be given an opportunity to file an additional written statement on the amended plaint; suitable issues should then be framed, and the suit tried on its merits, as an action dependent of S. 92 C. P. C. If plaintiffs do not desire this course, they have no alternative but to withdraw this suit, and to institute a fresh suit after obtaining sanction of the Advocate General. The order of the curt below is modified accordingly. Parties will bear their own costs.

(3.) ORDER modified accordingly.