BALKISHAN DASS Vs. PARMESHWARI DASS

JUDGEMENT

(1.) The present applicant is defendant No. 1 in suit No. 363 of 1950 filed in the court of the Senior Subordinate Judge at Amritsar. The two plaintiffs Parmeshwari Das and Bhagat Sant Ram claim to be two of the trustees of a public charitable and religious institution known as the Namdev Kalladhari Temple which originally was in Bahawalpur State. The trust is said to have been created by the last Mahant of the institution, one Brijmohan Das Gosain by will executed and registered in May 1938. Defendant No. 1 is President of the Board of Trustees and defendant No. 2 is also a trustee. According to the plaint these defendants have excluded the plaintiffs from any share of management, they have withheld information, they have given no accounts and it is said they have been appropriating the funds of the trust to their own purposes.

(2.) The defendants raised a number of contentions and among these contentions was a plea that the suit was bad for want of the sanction of the Advocate General, under Section 92 of the Code of Civil Procedure. The issue whether the suit falls under Section 92 was one of the three preliminary issues tried. The learned Judge has held that the suit is not one under Section 92, and the defendants have come up in revision from this decision.

(3.) The scope of Section 92 has been the subject of many decisions. It may be taken as well settled that if the relief sought would not fall within one or more of Clauses (a) to (h) of Section 92 (1), then the suit is cot one falling under that section; (See the latest decision of the Supreme Court -- 'Pragdasji Guru Bhagwandasji v. Ishwar Lalbhai Narsibhai', AIR 1952 SC 143. In the present case the relief sought does fall under Clause (d) of Section 92 (1). Provided the suit satisfies other requirements of Section 92 that section would have application. There seems no doubt, however, that the suit to fall under Section 92 must be of the nature of a representative suit to enforce public rights. The suit must be by two-or more persons having interest in the trust and must be founded upon a breach of the trust or circumstances where the direction of a Court is deemed necessary for the administration of the trust. In -- 'Appanna v. Narasinga", 45 Mad 113 (FB) it was held by a Full Bench of the Madras, High Court that a suit by a trustee of a public charitable or religious trust against a co-trustee for accounts does not fall within Section 92 of the Code of Civil Procedure and may be brought without the sanction of the Advocate-General. The correctness of this decision was affirmed in -- 'Shanmukham Chetty v. Govinda Chetty', ILR (1938) Mad 39. On the other hand in -- 'Tricumdas Mulji v. Khimji Vullabh-dass', 16 Bom 626 two out of five trustees appointed by a will to administer a public charitable trust brought a suit against the remaining three trustees praying (1) that one of those might be ordered to account for a specific sum of money of which it was alleged he had committed a breach of trust, (2) that this defendant might be removed from the office of trustee and some other person, appointed in his stead, and (3) for such other or further relief as the nature of the case might require, and it was held by a Single Judge of the Bombay High Court that the suit fell under Section 539 of the Code of 1882 and was not maintainable without the consent in writing of the Advacate-General. This decision may be reconciled with the Madras decisions to which I have referred on the lines indicated by Mr. Justice Varadachariar in -- 'Sundara Ayyar v. Murari Varada Ayyar', AIR 1935 Mad 855. The learned Judge there held that a suit relating to a public trust does not fall within Section 92, if it merely relates to the vindication of private rights. But if the avowed object of a suit is the furtherance of the interests of the institution itself by the framing of a proper scheme amongst the alleged trustees, who are not able to agree among themselves upon proper management, then the suit falls under Section 92, and the mere fact that the plaintiffs themselves are trustees will not preclude the application of Section 92.