K.N Srivastava, J.:— The following three questions have been referred to us:—1. Whether a relief for declaration that a property is endowed property so as to bind arrangers to the trust can be granted in a suit under Sec. 92 of the C.P Code? 2. Whether the plaintiffs in a suit under Sec. 92 of the C.P Code, can claim reliefs, which do no find a mention in the permission or sanction granted by the Advocate General under Sec. 92 of the C.P Code, and 3. Whether clause (c) of sub-sec. (1) of Sec. 92 of the C.P Code contemplates only vesting a title in the property in a trustee?
2. We propose to answer these questions in seriatim. Question No. 1 really consists of two questions, one as to whether a declaratory decree can be passed in a suit under Sec. 92 of the Code of Civil Procedure, and whether in such a suit a stranger can be made a party. One would have thought that the curtain on this controversy had fallen after the decisions of the Privy Council in the case of Abdur Rahim v. Abu Mahomed Barkat Ali A.I.R 1928 P.C 16. and of the Supreme Court in the case of Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai A.I.R 1952 S.C 143. and in the case of Bishwanath v. Sri Thakur Radha Ballabhji, but counsel for the respondents has by reference to a large number of cases including some of this Court made a ??? attempt to establish that this is not so. It is as such necessary to examine the various decisions on this point. In Abdur Rahim v. Abu Mahomed Barkat Ali, a suit under Sec. 92, C.P.C by some Mohammadans was filed against Rukia Bibi as defendant, for removal of Rukia Bibi from the office of ??? for account and for settling a scheme for the management of the said properties. Sanction for this suit and these reliefs had already been obtained from the Advocate General. The plaint of the suit was subsequently amended by addition of certain persons who were strangers and were claiming the property as their personal property, and by addition of a prayer for declaration that the property in suit was waqf property and not the personal-property of the defendants. No sanction of the Advocate General was obtained for this amendment. A compromise application was filed to which one of the plaintiffs was not a party and a compromise decree was thereafter drawn up. By this compromise, a portion of the disputed land was declared as waqf property and the rest as secular property of the newly added defendants. These newly added defendants thereafter alienated the property, and another suit was filed by five Mohammadans against the newly added defendants of the first suit and their alienees. In this suit, it was prayed that the alienated land be declared as waqf property, and the defendants be restrained from obtaining possession or realising rent and for a declaration that the compromise decree was not binding on the plaintiffs. When the matter went up before the Privy Council, it was contended that the second suit could not have been filed without obtaining the sanction of the Advocate General. It is necessary to notice at this stage that the reliefs in the second suit were mostly declaratory in nature, and one for an injunction. Their Lordships of the Privy Council rejected this contention, and held that the reliefs prayed for in the second suit were outside the scope of a suit under Sec. 92, C.P.C, and that Sec. 92 applied only to those suits in which the reliefs specified in Sec. 92(1), C.P.C were claimed. Their Lordships of he Supreme Court had occasion to consider this case in the case of Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai and approved this view of he Privy Council, and held that a suit for declaration that certain property appeartains to a religious trust may be filed under the general law, but was outside the scope of Sec. 92. C.P.C In Abdur Rahim's case their Lordships of the Privy Council also considered the question as to whether relief against third parties or strangers could be obtained in a suit under Sec. 92, C.P.C In considering this question, their Lordships also considered he provisions of Sec. 539 of the Code of 1877, and held that Sec. 92, C.P.C did not contemplate granting reliefs against third parties. The contention that such a relief fell within the scope of Sec. 92, was repelled. The noble Lords on this aspect of the controversy opined the page 19 of he report as under:—
“Their Lordships see no reason to consider that Sec. 92 was intended to enlarge the scope of Sec. 539 by the addition of any relief or remedy against third parties i.e strangers to the trust. They are aware, that he Courts in India have differed considerably on the question whether third parties could or should be made parties ??? a suit under Sec. 539, but the general current of decisions was to the effect that even if such third parties could properly be made parties under Sec. 539, no relief could be granted as against them. In that state of the previous law, their Lordships cannot agree that the Legislature intended to include relief against third parties in clause (h) under the general words, ‘further or other relief’.
The conclusion is that, in as much as the suit out of which his appeal arises did not claim any such relief as is specified in sub-sec. (1), Sec. 92, that section was no bar to he maintainability of the suit without the sanction of the Advocate General and in the Court of the Subordinate Judge.”
3. We have already adverted to the decision of he Supreme Court in the case of Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai which approved of the aforesaid view of the Privy Council, but in as much as counsel for the respondents has contended that there are Certain observations in the judgment of the Supreme Court in this case which lead to the inference that a declaratory relief can also be given in a suit under Sec. 92, C.P.C we think it necessary to extract the relevant portion of this judgment at page 144 at this stage, in order to resolve this controversy:—
“A suit under Sec. 92 Civil P.C is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and or must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions are fulfilled that the suit has got to be brought in conformity with the provision of Sec. 92, Civil P.C As was observed by the Privy Council in Abdur Rahim v. Md. Barkat Ali, a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside he scope of Sec. 92, Civil P.C in the case before us, the prayer made in the plaint are undoubtedly appropriate to the terms of Sec. 92 and the suit proceeded on the footing that the defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the Court, but when the Courts found, concurrently on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of he plaintiffs, that any direction of the Court was necessary for proper administration of the trust, the very foundation of a suit under Sec. 92, Civil P.C became wanting and the plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of he High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the plaintiffs. It has been argued by the learned counsel for the respondents that even if the plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties—a fact which the defendant denied. In these circumstances, there was nothing wrong, for the Court to give the plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed under Sec. 92, Civil P.C, the only reliefs which the plaintiff can claim and the Court can ??? are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the plaintiff is held entitled to it but when the case of the plaintiff fails for want of a cause of action there is no Warrant for giving him a declaratory relief under the provisions of Sec. 92, Civil P.C The finding as the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit.”
4. We are unable to see how the aforesaid observation of the learned Judges of the Supreme Court can be read as expressing the view that a declaratory relief tan also be granted in a suit under Sec. 92, C.P.C The reliance by counsel on the following passage of this quotation in support of this contention is misconceived:—
“When the defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to he main relief claimed under the section if the plaintiff is held entitled to it….” These observations have, go to be read in the context of the entire judgment, and not in isolation, in as much as the learned Judges have clearly approved of the decision of the Privy Council in Abdul Rahim v. Abu Mahomed Barkat Ali and have in clear and categorical terms held that a suit for a declaration that properties in suit are trust properties does not come under Sec. 92, C.P.C This contention is wholly futile. Moreover, all that the learned Judges have said in this passage is that a declaration that the trust does exist might be made as ancillary to the main relief i.e a finding that a trust exists can be given as ancillary to the main relief, and not that a declaratory relief that properties in suit are trust properties can be granted in such a suit. This view was reiterated in the case of Bishwanath v. Sri Thakur Radha, Ballabhji A.I.R 1967 S.C 1044., where after referring to the decisions of the Privy Council in Abdul Rahim v. Abu Mahomed Barkat Ali and that in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, Supreme, Court laid down that a relief for declaration is no one of the reliefs enumerated under Sec. 92, C.P.C and a suit for a declaration that the property belongs to a trust, is outside the scope of Sec. 92, C.P.C The same view was expressed in the case of Narain Lal v. Seth Sunderlal Tholia Johri (Dead) A.I.R 1967 S.C 1540.. This unequivocal position of the law was again affirmed in the case of Harendra Nath Bhattacharya v. Kaliram Das 1972 1 SCC 115. In that case, the main Reliefs claimed were declaratory in nature. In that suit, the reliefs prayed for were for a declaration that the land had been gifted for religious purposes and that the defendants had no personal interest and further that the defendants were to maintain the Satra out of the income of the suit land, and that the plaintiffs were entitled to possess their own Basti and use the Satra for religious purposes. There was also a claim for possession. The High Court had taken the view that the reliefs claimed were outside the scope of Sec. 92, C.P.C The learned Judges of the Supreme Court held that a suit under Sec. 92, C.P.C was of a special nature and unless the suit was brought for one or other of the reliefs under Sec. 92, C.P.C, the suit was outside the scope of the section. It was as such held that the reliefs claimed in the suit filed did not fall within the purview of Sec. 92, C.P.C and as such no sanction under that section was required for filing the suit. In view of these weighty pronouncement of the Supreme Court and that of the Privy Council, it has to be held that he suits for declaration that properties appertained to a religious trust or waqf cannot form the subject matter of a suit under Sec. 92, C.P.C The court can, however, in case a dispute arises as to whether certain items of property are trust properties, record a finding that they are so, but this may be done only in case the plaintiff is held entitled to one or the other of the reliefs enumerated in Sec. 92, C.P.C
5. The second aspect of the first question is also covered by high authority. We have already extracted the relevant portion from the judgment of the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali wherein it has been held that relief against strangers i.e, persons who are no trustees cannot be granted in a suit under Sec. 92. In the case of Bishwanath v. Sri Thakur Radha Ballabhji, it has been held that a suit for a declaration that certain property belongs to a trust and for possession thereof from the alienees does not fall under Sec. 92, C.P.C, as such suits are really suits to enforce a private right and not a representative suit of the type contemplated by Sec. 92, C.P.C It is necessary to extract, the relevant portion of he judgment of the Supreme Court on this aspect on page 1046 of the report:—
“It is settled law that to invoke Sec. 92 of the Code of Civil Procedure, three conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Sec. 92 of the Code of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of Section 92 of the Code of Civil Procedure by the Privy Council in Abdur Rahim v. Abu Mahomed, Barkat Ali and by this Court in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai on the ground that a relief for declaration is not one of the reliefs enumerated in Sec. 92 of the Code of Civil Procedure. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of Sec. 92 of the Code of Civil Procedure: See Mukhda Munnudas Bairagi v. Chagan Kisan Bhawasar I.L.R 1975 Bom. 809. Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which Sec. 92 of the Code of Civil Procedure applied: See Darshan Lal v. Shibji Maharaj Birajman A.I.R 1923 All. 120. and Madhavrao Anandrao v. Shri Omkareshvar Ghat 31 Bom. L.R 192. The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right. The suit is for a declaration of the plaintiff's title and for possession thereof and is, therefore, not a suit for one of the reliefs mentioned in Sec. 92 of the said Code and, therefore, the said section is not a bar to the maintainability.
6. Although we feel that this controversy stands resolved by the aforesaid pronouncement of the Supreme Court, but in as much as there are three decisions of this Court in which the view has been taken that the third parties can also be made parties to a suit under Sec. 92, C.P.C, we propose to advert to these cases as also the views of such other High Courts as have been placed before us. In order to avoid unnecessary repetition, we propose to refer to the decision of the Calcutta High Court in the case of Gobinda Chandra Ghosh v. Abdul Majid Ostagar A.I.R 1944 Calcutta 163. wherein all the earlier views of various High Courts have been noticed. B.K Mukerjea, J. as he then was, speaking for the Court after reviewing all the decisions of that Court and of the Madras High Court and no icing the views of this Court held on page 175 as under:—
“If the position of a transferee of a wakf property, either with or without notice of the wakf is that of a trespasser, I do not see any reason why he should be regarded as a trustee for the purpose of a suit under Sec. 92, Civil P.C The essence of the claim against him must be that he should restore possession of the property which is held by him. There is no question of execution or administration of trust so far as he is concerned. If the purchaser had taken upon himself the duties of a trustee and became a trustee de son tort, relief against him under Sec. 92, Civil P.C, might certainly be claimed. But when he has purchased the property not as wakf properly, but as the personal property of the mutwalli and purports to hold it adversely to the trust, he is in the position of a rank trespasser and not that of a trustee either actual or constructive. It would be disastrous; I think, to the interests of the wakf estate itself if for the recover of trust property in such circumstances a suit under Sec. 92, Civil P.C, is deemed to be necessary.”
7. He also rejected the contention that the third parties may be retained as parties to the suit and gave the following reasons for this conclusion on page 177 of, the report:
“Mr. Gupta has argued in the last report that, at any rate, defendants 2 and 3 might be retained as parties to the suit and the decision might be given in their presence. This is undoubtedly the view taken by some of the other High Courts in India. It seems to us to be opposed to all principles to make a decision in the presence of a particular party with a view to make him bound by it when admittedly no relief can be given against him. The matter would have been different if he were a more formal or pro forma party. It is an arguable point whether such party would have the right of appeal against such decision, although no decree was passed against him. So far as this Court is concerned, one consistent view has been followed throughout and we do not think that it would be proper on our part to make a departure in this direction.”
8. The view of our court as expressed in some cases which we will presently refer is that an alienee although not a necessary party is a proper party. The view of the Madras High Court is variable. In Assam Raghaviau v. Sitasma 27 M.L.J 266., the Chief Justice was of the view that a transferee could not be made, a party, but he can be so made in cases if he desires, while that of Seshagiri Aiyar, J. was that he was a proper party though no relief could be claimed against him. In Anjaneya Sastri v. Kothandapani Chattiar A.I.R 1936 Madras 449., a distinction was made between an absolute stranger to a trust property, and one who derived his title from the settler or costui que trust. It was held that in the latter case, the person could be joined as a party though no relief could be claimed against him. The Bombay High Court in Collector of Poona v. Bat Chanchelbai A.I.R 1935 Bombay 470. had taken, the view that an alienee, was a necessary party although possession could not be recovered from him. In the case of Johnson D. Po. Min v. U. Ogh A.I.R 1932 Rangoon 132., it was held that an alienee or a stranger could not be made a party to the suit under Sec. 92, C.P.C
9. Having noticed these views, it is now, necessary to examine the decisions of our Court. These decisions are (Acharya Guru Mahant) Ramrup Goshain v. Mahant Ramdhari Bhagat A.I.R 1925 All. 683.; Lachhman Prasad v. Munia A.I.R 1925 All. 759.; Ratan Sen alias Ratan Lal v. Suraj Bhan A.I.R 1944 All. 1. and Janki Prasad v. Kuber Singh A.I.R 1963 All. 187.. In (Acharya Guru Mahant) Ramrup Goshain v. Mahant Ramdhari Bhagat, a suit was filed after obtaining sanction under Sec. 92, C.P.C Apart from impleading the trustee, a number of alleged transferees were also impleaded. A question arose as to whether third parties transferees could be arrayed as defendants in the suit. Boys, J. held that they could be impleaded and were necessary parties. Both Sulaiman and Boys, JJ., however, held that a decree for possession could not be granted in a suit under Sec. 92, C.P.C against transferees. In Lachhman Prasad v. Munia a suit had been filed under Sec. 92 of the Code of Civil Procedure. The defendants, however, denied the trust and also that they entered into possession as trustees, and set up their own title. The plaint was returned by the trial court for presentation to the proper court on the ground that the suit was not maintainable under that section, in as much as the defendants were asserting independent title. In appeal before this Court, a question arose as to whether such a suit would be maintainable under Sec. 92 of the Code. It was held that in such a suit, the Court had jurisdiction to decide first as to whether the property in dispute is or is not a trust property, and that this question ought to be decided in the presence of parties, who were interested in denying the trust. It was also observed, that persons denying the title of the trust may not be absolutely necessary parties but in as much as they were impleaded, it could not be Said that they were improperly impleaded. It was also held if in such a suit, it was found that the defendants were trespassers, no relief for possession could be given against them. In Ratan Sen alias Ratan Lal v. Suraj Bhan, a suit under Sec. 92, C.P.C was filed after obtaining permission for the reliefs that defendant No. 1 to the suit might be removed from the office of the trustee and ??? trustees be appointed and the new trustee should be put in possession of the waqf property, the rights of the defendant be extinguished, and the defendants be required to render accounts. In the suit, it was alleged that the first defendant was the trustee and the second defendant was in possession under an alleged mortgage executed by the first defendant, and defendant No. 3 was claiming the property as a grove-holder. The suit was dismissed by, the District Judge against the third defendant, who claimed to be the grove-holder, on the ground that the Advocate General had given permission to sue only the first two defendants. He removed the first defendant from the office of trustee and directed scheme to be drawn up. A declaratory relief against the defendants was granted that the properly in suit was the property of the trust. In appeal, it was contended, that no decree could be passed against the second defendant in a suit under Sec. 92, C.P.C Reliance for this contention was placed on the decision of the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali. The decision of he Privy Council was distinguished by the Court on the ground that the Privy Council did not intend in that case to express any definite opinion upon the subject of joinder of parties or causes of action, or upon the effect of non-joinder or mis-joinder. The decision of the Rangoon High Court in the case of Johanson D.P Min v. Ogh, which had taken the view that no relief against third parties could be granted in a suit under Sec. 92, C.P.C was not followed in view of the earlier decision of this Court in (Acharya Guru/Mahant) Ramrup Goshain v. Mahant Ramdhari Bhagal which has already been referred to earlier. It was held that in as much as Section 92, C.P.C did not contain any provision for joinder of parties or causes of action, it did not rule out the application of other provisions of the Code of. Civil Procedure viz. Order 1, Rule 2. It was also held that a person who denied the trust, and was impleaded as a party, the finding given in the suit would be binding against him. As a result of this conclusion, the declaratory decree against defendant No. 2 was upheld.
10. Reference at this stage may be made to two other decisions of this Court, which were given under Sec. 569 of the old Code, which was in pari materia with Sec. 92 of the Code of Civil Procedure. The first decision is that given in the case of Ghazaffar Husain Khan v. Yawar Husain 2 A.L.J 591.. The suit was filed by two members of the Imamya sect for the removal from possession of certain endowed property, of the Mutwalli, and of any other defendant who may be in possession and for framing a scheme for the management of the waqf property. It was alleged in the plaint that the Mutwalli had improperly alienated a portion of the endowed property, and had also neglected the management, of the trust. The other defendants in the suit were transferees from Mutwalli of portions of endowed property. Stanley, C.J held that it was open to the plaintiff to implead the defendant-appellants as parties into whose hands portions of endowed property had gone Burkitt, J. also agreed with the view of the Chief Justice. The decision in Ghazaffar Husain Khan v. Yawar Husain was considered in the case of Manohari v. Muhammed Ismail 8 A.L.J 896. and the view that mortgagees and alienees could also be made parties to a suit under Sec. 539, was affirmed. We ??? our inability to agree with this view. The reason being that after the decision of he Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali, which decision, as has been seen, has been affirmed by the Supreme Court in Pragdasji Guru Bhagwandasji v. Ishwarilalbhai Narsibhai and the principle that no relief in a suit under Sec. 92, C.P.C be granted against a third party having thereafter been once again reiterated in the case of Bishwanath v. Sri Thakur Radha Ballabhji, it is not possible for us now to subscribe to the earlier view. The reason given for distinguishing the decision of the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali by the Bench deciding the case of Ratan Sen alias Ratan Lal v. Suraj Bhan with respect are not correct. We have already extracted the relevant passage of the Privy Council decision dealing with this question, and is clearly lays down that a suit against third party is outside the pale of Sec. 92, C.P.C Similar is the declaration of the law on this point by the Supreme Court in the case of Bishwanath v. Sri Thakur Radha Ballabhji the relevant part of the judgment of which has already been extracted by us. We are also unable to subscribe to the view that a transferee or alienee even though he might not be a necessary party to such a suit, is a proper party, and any decision given in such a suit would be binding on him, for once such a suit is filed impleading third parties or they are subsequently added, the suit would cease to be a suit under Sec. 92 of the Code of Civil Procedure, and no valid-decree can be passed in such a suit against third party, for the very frame of the suit would then become defective. The criticism of Page, C.J in Johnson D. Po. Min v. U. Ogh of the view expressed by this Court in (Acharya Guru Mahant) Ramrup Goshain v. Mahant Randhari Bhagat although harsh, appears to be correct in view of the pronouncement of the Privy Council and the Supreme Court. It is not necessary to refer in detail to the decisions given in Assam Raghavalu Chetty v. P. Sitamma; Venketarama Aiyangar v. Kasthuriranga Ayyengar I.L.R XL Mad. 212.; The Collector of Poona v. Bai Chanchalbai I.L.R XXXV Bom. 470. and C.N Evalappa Mudaliar v. T. Balakrishnammal A.I.R 1927 Mad. 710., which appear to have taken the view that strangers to the trust may be made parties to a suit under Sec. 92, C.P.C, for we are unable to agree with the views Expressed in those cases for the reasons already given above. It must, therefore, be held that a relief for declaration that the property is endowed property so as to bind a stranger to the trust, cannot be granted in a suit under Sec. 92 of the Code of Civil Procedure. For the purpose of this reference, it is not necessary to express any opinion on the point as to whether any valid decree can be passed against third parties, who get themselves impleaded at their own instance. We may, however, without expressing any opinion finally on the matter point out that on the view that we have taken it may not be open for a court to do so in such a suit.
11. Coming now to the second question there is considerable authority on this question and we propose to refer to it before formulating our views on this point. In the case of Nisam Ali Haq v. Muhammad Ishaq A.I.R 1919 Lahore 82. a suit was brought in respect of a graveyard claiming a number of reliefs including one for accounts. Sanction for filing the suit under Sec. 92, C.P.C had been obtained from the Collector, but he had given consent for reliefs other than one for accounting. The District Judge dismissed the suit for accounting on the ground that sanction for this relief had not been obtained from the Collector. Shadi Lal, G.J and Martineu, J. following an earlier decision of the Court in Prem Singh v. Labh Singh 89 Punjab Reports 1901. held that a suit under Sec. 92, C.P.C must be limited to matters included in the sanction and it was not competent for the Court to enlarge the scope of the suit and to grant reliefs other than those included in the terms of the sanction. The Madras High Court in (Davurur) Pitchavya v. (Divi) Venkatakrishnamacharlu A.I.R 1930 Mad. 129. took the same view following an earlier decision of the same court reported in Srinivasa v. Venkata I.L.R XI Mad. 148.. Similar is the view in S.B Peshwa v. L.T Purandre A.I.R 1923 Bom. 428.. Although, the second question relates to claiming of reliefs other than one sanctioned under Sec. 92, C.P.C, a little digression is necessary by referring to certain other cases where it has been held that where sanction is granted to a particular person or individuals, the suit must be filed by all of them or else it would not be maintainable. A reference to these cases is necessary, as they throw light on the finality given to a sanction granted under Sec. 92, C.P.C or under Sec. 18 of the Religious Endowment Act and also help in resolving the present controversy. In Venkatesha Malia v. B. Ramaya Hegade I.L.R 38 Mad. 1192. a case relating to a sanction granted under Sec. 18 of the Religious Endowmtnt Act, it was held that where sanction is granted to two persons, on of them cannot sue alone. The reason which prevailed with the Madras High Court for taking this view might profitably be quoted:—
“Cases may occur in which it might be inadvisable to grant sanction to a particular individual either on account of his character, personal motives, or his solvency, and yet if he joined with some one whose very name would be a guarantee against the suit being improperly conducted, a Court would be justified in granting a joint sanction where it would have refused leave to the single applicant.”
12. This point has now been authoritatively settled by the decision of the Supreme Court in Narain Lal v. Seth Sunderlal Tholia Johri (Dead) A.I.R 1967 S.C 1540., where it has been held that where sanction is given to four persons and one of them dies before the institution of the suit, the suit on such sanction by the remaining three persons is bad. Their Lordships of the Supreme Court in this case approved of the decision in the case of Mt. Ali Begam v. Badrul Islam Ali Khan A.I.R 1938 P.C 184. where it was observed: “The suit as insituted must conform to the consent…….” Counsel for the respondents has, however, urged that once a suit has been insituted in accordance with the sanction, it becomes subject to all the provisions of the Code of Civil Procedure, including relating to the amendment of pleadings, and that being so, it is open to persons who have obtained sanction for some reliefs to either expand or diminish the scope of the suit by a proper application, for amendment. Once such an application is made, the Court in its discretion may allow all such amendments, and such orders would be valid, as he fetter imposed by Sec. 92, C.P.C does not apply to the court itself. An extreme contention has also been advanced that once sanction is granted, it is open for a person to file a suit praying for any or all of the reliefs mentioned in Sec. 92, C.P.C and the Advocate General in his order granting sanction, cannot limit the reliefs which can be prayed for in such a suit.
13. We propose to consider the second limb of this argument first. The decisions in Raja Anand Rao v. Ramdas Daduram A.I.R 1921 P.C 123.; Mt. Premo v. Pt. Sheonath A.I.R 1933 Oudh 22.; Managing Committee, of Syed Salar Endowment, Bahraich through Sardar Ali v. Hakim Mohd. Ahsan A.I.R 1947 Oudh 22. have been strongly relied upon in support of these propositions. In Mt. Premo v. Pt. Sheonath sanction had been granted by the Legal Remembrancer under Section 92, C.P.C without giving details as regards the names of the proposed defendants and the relief to be claimed in he suit, it was urged that the sanction was not in accordance with Sec. 92, C.P.C The court held that the section did not require these details, and as such the order granting sanction could not be held to be invalid. This case does not really answer the contention, for it is possible that the application moved for the sanction might have contained all the reliefs prayed for in the suit, and also mentioned the defendants against whom suit was proposed to be filed. In such a situation if the sanction was given without mentioning these details, the suit would not be defective for the order granting sanction would have to be read along with the application for sanction. We are, however, of the view-that the decision in so far as it lays down that if was not necessary for the Advocate General to specify the defendant and the reliefs to be asked for in a suit under Sec. 92 C.P.C, for reasons which we shall hereinafter give, does not lay down the correct law. The decision in Managing Committee of Syed Salar Endowment, Bahraich through Sardar Ali v. Hakim Mohd. Ahsan no doubt supports, both the contention. So far as the decision of the Privy Council in Raja Anand Rao v. Ramdas Daduram, we cannot read it as a pronouncement by their Lordships, as lying clown that reliefs other than those prayed for and sanctioned could be obtained in a suit under Sec. 92, C.P.C or that it is not necessary in the sanction, to state the particulars of the parties and the relief for which the suit could be filed. The fact that their Lordships did not consider this aspect of the controversy is clear from the following passage in their decision given oh, page 124 of the report:—
“During the progress of the proceedings, the old Rajah had died and, therefore, there was no more question of removing him.”
14. Thus even if the sanction granted by the Collector in that case is read as one refusing permission to remove the Rajah trustee, even though the sanction granted was couched in rather vague language, the question as to whether the suit was validly instituted did not engage the attention of their Lordships, as that question no longer survived, when the appeal was heard. The main question in that case was as to whether after the death of one of the parties, the suit be continued by substitution of life heirs. The Privy Council held that it was possibly to do so.
15. We now proceed to give our reasons for taking a contrary view to that expressed in he two Oudh decisions. It becomes now necessary to quote the relevant part of Sec. 92 at this is age:—
“92. In the case of any alleged breach if any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, 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, may instituted a suit…… to obtain a decree……….”
16. Section 92 envisages:—
(a) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or—
(b) where the direction of the court is deemed necessary for the administration of any such trust;
(c) the Advocate General may institute a suit, to obtain a decree—
(d) two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General may institute a suit to obtain a decree—
Therefore, when the Advocate General institutes a suit to obtain a decree for any of the relief or reliefs indicated in clauses (a) to (h), he as a plaintiff will choose the appropriate relief or reliefs. Two or more persons having an merest in the trust can also be authorised by the Advocate General by obtaining the latter's, consent in writing to institute a suit to obtain a decree for any of the appropriate relief or reliefs indicated in clauses (a) to (h). As the two or more persons who are only a substitute for the Advocate General as plaintiffs in the suit and nothing more it is not possible to construe the section giving the choice of reliefs to two or more persons having an interest in the trust. Even when the Advocate General gives his consent, in writing to two or more persons having interest in the trust to institute a suit the choice of relief or reliefs will still remain with the Advocate General. In fact and in practice as the provisions of the Legal Remembrancer Manual of the U.P Government shows that in the order of sanction the Advocate General has to indicate the relief or the reliefs when granting consent in writing to two or more persons interested in the trust to institute a suit, it would be seen that three kinds of suit are contemplated:
(1) When there is a breach of trust;
(2) Where a direction of court is deemed necessary for the administration of any such trust; and
(3) Where there is a breach of trust and as well when a direction is necessary for the administration of any such trust. When the Advocate General finds that the trust in question express or constructive has been created for public purposes of a charitable or religious nature or where the direction of he court is deemed necessary for the administration of any such trust either the Advocate General himself or two or more persons having interest in the trust and having obtained the consent in writing of the Advocate General may institute a suit. The existence of a trust express or constructive for public purposes of a charitable or religious nature is the foundational fact for the Advocate General to institute a suit on any alleged breach thereof or where the direction of the court is deemed necessary, for the administration of any such trust. The existence of the same foundational fact will be necessary before the Advocate General can grant consent in writing to two or more persons having interest in the trust. The consent in writing is for he purposes of instituting a suit to obtain a decree. What reliefs could be obtained in the suit on the basis of which a decree will be granted in such a suit will be the subject-matter of consent in writing of the Advocate General authorising two or more persons having interest in the trust to institute the suit. It will be for the Advocate General to choose the appropriate relief or reliefs covered by clauses (a) to (h) in the circumstance of each case. It is not envisaged under the scheme of the section that a written consent by the Advocate General permitting two or more persons having interest in the trust to institute a suit confers upon the latter a clean charter as regards the relief or reliefs and leaves it to the choice of the persons so permitted to ask for any decree as they like. In the instant case we find that the Advocate General had granted consent to the plaintiffs for particular reliefs as the sanction order shows. This was in accordance with the practice which has always been followed. We think we should not disturb the long standing practice even if it were assumed for a moment that Sec. 92 could be construed as leaving it to the choice of two or more persons having an interest in the trust to ask for a decree of their liking.
17. As we read Sec. 92, C.P.C the sanction has to be granted for instituting a suit for obtaining a decree for the matters set out in clauses (a) to (h) of that section. While interpreting Sec. 92, C.P.C it would not be appropriate to treat the coma(,) after the words “may institute a suit” as a full-stop(.) and read the words “to obtain a decree,” which follow thereafter separately as forming part of another sentence. With respect, the error in the view of the Oudh Chief Court in the two cases referred to above, seems to have occurred on account of this misconstruction. Suits under Sec. 92, C.P.C are of special nature and can be filed primarily by the Advocate General or by persons to whom he grants sanction. While deciding to grant sanction for a suit, a host of considerations have to be taken into account by the Advocate General on a consideration of the facts of each case. In deciding whether to grant sanction or not, he has to consider the interest of the trust and to ensure that the trustees of public charities are not put to unnecessary harassment by filing of vexatious suits by parties who may have ulterior motive in obtaining sanction. The Madras High Court in the passage we have already extracted, has very pertinently referred to this aspect of the matter. The Advocate General while granting sanction has to take an objective decision and his consent in writing must cover the relief or reliefs for which a decree would be prayed for in the suit. It would be incumbent upon the Advocate General to consider who are to be arrayed as defendant as also the appropriate reliefs necessary in the circumstances of the case. This apart, even if we read Sec. 92 in the way suggested by the respondents, the very use of the expression “has institute a suit” connotes that the sanction has to be qua the parties to the suit and the relief to be obtained in such a suit. The word “suit” has not been defined in the Code of Civil Procedure, but it is trite that a suit at least consists of three components (1) parties to the suit; (2) the facts relating to the cause of action for he suit and (3) reliefs prated for in the suit. No document filed in court can give rise to a suit if it does not contain these three essential component. Thus looked at from any view, the sanction which the Advocate General accords under Sec. 92, C.P.C must at least specify the array of parties, and the reliefs to be obtained.
18. We are also not impressed by the first part of the contention, reliance for which is placed on the decision of the Privy Council in the case of Mt. Ali Begam v. Bad-rul-Islam Ali Khan and in particular on the following passage:—
“When once validly instituted, it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular.”
19. It is due that after the suit is filed, all the provisions of the Code of Civil Procedure apply; but that does not mean that by recourse to the provisions for amendment, the entire nature of the suit can be altered. The amending power conferred by the provisions of Order 6, Rule 17 of the C.P.C is not so wide in its sweep to permit an amendment which will alter the entire nature of the suit (See Gopalakrishnier v. Ganapathy Aiyar A.I.R 1920 Mad. 238.; Mandoori Durga Mallikhariana Varna Prasad Rao v. Gupipudi Gopalachandra A.I.R 1926 Mad. 970.; Sakharam Balwani Peshwa v. Laxman Trimbak Parandre A.I.R 1923 Bom. 428.; Bapugouda Yadgouda Patil v. Vinayak Sadashiv Kulkarni A.I.R 1941 Bom. 317.; Gobinda Chandra Ghosh alias G. Ghosh v. Abdul Majid Catagar, Jessingbhai Jagjivandas v. Jivatlal Pratapsi A.I.R 1947 Bom. 487. and Kidar Nath Datt v. Kishandas Bairagi A.I.R 1957 Punjab 100.). It has been consistently held that where fresh reliefs which alter the character of the suit are asked for by way of amendment, fresh sanction had to be obtained from the Advocate General, and they cannot be introduced through the back door of an amendment without obtaining sanction. A sanction under Sec. 92, C.P.C is the charter within the four corners of which the suit has to proceed, and the plaintiff cannot either give up or enlarge the reliefs sanctioned. Suits under Sec. 92, C.P.C are suits of a special nature, and are for protecting the interest of public charities, and in case one were to hold that the plaintiff after obtaining such a sanction has a free hand in the matter, the very purpose of obtaining, sanction under Sec. 92, C.P.C would be destroyed, for he can thereafter give up the mos vital reliefs Which are necessary and add new ones so as to harass the trustees of public charities. Such a conclusion would open the door wide for unreal thy bargaining between the plaintiff and the delinquent trustees. We are, therefore, of the view that a plaintiff in a suit under Sec. 92, C.P.C cannot claim reliefs which do not find mention in the sanction granted by the Advocate General.
20. The third question may now be considered. The question referred to be is of a very limited nature, and calls for an answer only as to whether Sec. 92(1)(c), C.P.C contemplates vesting of title in the property in a trustee or under this sub-clause, or the court can direct vesting of possession, management etc. in the trustees. In as much as in the present case we are concerned with property of a Hindu religious Endowment vested in a diety, we propose to answer the question only with reference to such a trust. In Ghazaffar Husain Khan v. Yawed Husain, Stanley, C.J observed on page 117 of the report thus:—
“They merely ask the Court to vest the trust property in trustees duly appointed to manage the trust and to take it out of the hands of trustees who have been guilty of mismanagement. No change to the beneficial ownership is sought. The Court has undoubtedly power under the section, to vest the trust property in the new trustees, and it seems to me reasonably clear that the Court may direct a trustee who is being removed from the trusteeship to make over the trust property to the new trustee or trustees.”
21. In Johnson D. Po. Min v. U. Ogh, the Court after considering the decisions in Ramrup Goshain v. Ramdhary Bhagat; Sajedur Raja v. Baidyanath Deb I.L.R 20 Cal. 397. and Venkatarama Aiyengar v. Kasthuriranga Ayyengar held that the words of clause (c) referred to cases where a new trustee is appointed and possession is directed to be given to him, and not to cases where it is sought to, recover possession from trespassers. Sec. 92 was amended by the Code of Civil Procedure Amendment Act, 1956 (Act No. 66 of 1956) and clause (cc) was added to enable the Court to pass a decree directing a trustee who had been removed or a person who had ceased to be a trustee to deliver possession of any trust property in his possession to the new trustee. By the introduction of this amendment, the earlier decisions on the point as to whether Sec. 82(1)(c) contemplated vesting of title in the property or under it a direction regarding possession against erstwhile trustees could be given, in our view, have lost significance as the matter, has now been statutorily determined by the amendment. This being so, in as much as clause (cc) now specifically relates to an order directing possession to be given to trustees from erstwhile trustees, directions regarding possession must be held to be covered by clause (cc). A Division Bench of this Court in Rustam Khan v. Ahmad Bux A.I.R 1966 All. 163. has taken the view that clause (cc) was added by the legislature by way of abundant caution and that the Court always enjoyed powers to give direction regarding possession against erstwhile trustees under clause (c).
22. In view of a catena of decisions that an order regarding possession could always be passed against erstwhile trustees under Sec. 92(1)(c), C.P.C, the view taken by the Division Bench appears to be unexceptionable. However, whatever might have been the purpose behind the amendment, in view of addition of clause (cc), directions regarding vesting of possession must now specifically be taken to be covered by clause (cc) for reasons already adverted to. This being so, it remains to be determined as to what is the scope of Sec. 92(1)(c) after the addition of clause (cc). Both the words “vesting” and “property” are words of wide amplitude. In the Fruit and Vegetable Merchants Union v. The Delhi Improvement Trust A.I.R 1957 S.C 344., after reviewing a number of statuses and quoting with approval the observations of Lord Granworth in Richardson v. Robertson 1862 6 L.T 75 at p. 78a. of the judgment to the following effect:
“….the word ‘vest’ is a word, at least of ambiguous import. Prima facie ‘vesting’ in possession is the more natural meaning. The expressions ‘investitnture’ — ‘clothing’ — and whatever be the explanation as to the origin of the word, point prima facie rather to the enjoyment than to the obtaining of a right. But I am wiling to accede to the argument that was pressed at the bar, that by long usage ‘vesting’ ordinarily, means the having obtained an absolute and indefeasible right as contra-distinguished from the not having so obtained it. But it cannot be disputed that the word ‘vesting’ may mean, and often does mean, that which is its primary etymological signification, namely vesting in possessions”.
23. The Supreme Court on page 353 of the report observed as under:—
“19. That the word ‘vest’ is a word of vailable import is shown by provisions of Indian statutes also. For example, Sec. 56 of the Provincial Insolvency Act (5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that “such property shall thereupon vest in such receiver.” The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand. Secs. 16 and 17 of the Land Acquisition Act (Act I of 1894), provide that the property so acquired, upon the happening of certain events, shall Vest absolutely in the Government free from all emcumbrances.’ In the cases contemplated by Secs. 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word ‘vest’ has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Secs. 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them.”
24. Now let us see the rights which a trustee exercises in respect of a religious endowment. The property in a religious endowment if it relates to a Hindu deity vests in the deity See Jagadindra Nath v. Hemanta Kunwar Debi I.A 203. and Bishwanath v. Sri Thakur Radha Ballabhji. So far as Shebait of the deity is concerned, it is settled that both the elements of office and property, of deities and personal interest are blended together and neither can they be detached together. The presence of such interest in the endowed property vests in shebaitship the character of proprietary right and attaches to it the legal incident of property Angurbala Mullick v. Debabrata Mullick A.I.R 1951 S.C 293.. It is also well seeded that the word property is word of wide connotation and applied to both concrete as well as abstract rights of property see The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Tirtha Swamier of Sri Shirur Mutt A.I.R 1954 S.C 282..
25. It must as such be held that a shebait has a right to manage the endowed property and to hold that office and exercise all other rights incidental to these rights, and such rights are proprietary rights qua the trust property. In as much as it has already been seen that the word “vest” not only includes vesting of possession but vesting of other rights too, that is intangible or abstract rights, a direction under Sec. 92(c) can be given vesting the right of management and office and other incidental rights related thereto in favour of the shebait, who is the trustee of the endowed property.
26. We, accordingly, answer the first two questions referred to us in the negative and the third question by holding that clause (c) in the case of a shebait of Hindu deity, contemplates an order of vesting of management and the right to the office of shebait and all rights incidental thereto.
27. The case may now be listed before the appropriate Bench with the above answers.
Questions answered.
Asthana, J.:— In view of the opinion of the Full Bench of this Court dated 22-5-1974, we find that the plaintiff-respondents' suit under Sec. 92 of the Civil Procedure Code was not maintainable. Since this would be sufficient to dispose of the appeal finally, it is not necessary for us to express any opinion on other grounds raised in support of the appeal.
28. Accordingly, we allow this appeal, set aside the judgment and decree of the court below and dismiss the plaintiffs' suit as not maintainable.
29. In the circumstances of the case, there would be no order for costs.
30. Appeal allowed.
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