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Narain Lal v. Seth Sunderlal Tholia Johri (Dead)
Factual and Procedural Background
On 10 September 1955 four individuals—Narain Lal, Mool Chand, Mangilal and Kesharichand—obtained the written consent of the Advocate-General of Rajasthan to institute a representative suit under Section 92 of the Code of Civil Procedure (CPC) against the managing committee of the Jain Atishaya Kshetra Shri Mahabir Swami Temple, Chandangaon. Before the suit could be filed, Mangilal died.
Subsequently, on 6 March 1956 the surviving three applicants filed the suit in the court of first instance, seeking a declaration that the temple and its properties constituted a public charitable trust for the benefit of the Jain community, together with ancillary reliefs. One of those three, Kesharichand, died on 9 March 1958 after the suit had been instituted.
The trial court framed a preliminary issue—whether a suit instituted by fewer persons than those named in the Advocate-General’s consent was maintainable—and ruled in favour of maintainability. In revision, the High Court of Rajasthan reversed that finding, holding the suit incompetent. The present appeal to the Supreme Court of India was brought by special leave from that order.
Legal Issues Presented
- Whether a suit under Section 92(1) CPC is maintainable when instituted by only some of the persons to whom the Advocate-General’s written consent was originally granted, one such authorised person having died before institution of the suit.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Muddala Bhagavannarayana v. Vadapalli Perumallacharyulu | All persons named in the Advocate-General’s consent must be co-plaintiffs; suit by fewer is incompetent. | Cited as direct authority supporting the view that the present suit, instituted by only three of four authorised persons, is not maintainable. |
| Pitchayya v. Venkatakrishnamacharlu | Partial institution cannot be cured by later impleading the non-joining authorised person. | Relied upon to show that defects arising at the institution stage are incurable. |
| Sibte Rasul v. Sibte Nabi, ILR (1943) All 112 | Suit by fewer than the authorised number is incompetent even if missing person is later added. | Strengthened the proposition that initial non-joinder is fatal. |
| Venkatesha Malia v. B. Ramaya Hegade, ILR 38 Mad 1192 | Equivalent principle under Section 18 of the Religious Endowments Act 1863. | Used to show consistency of the rule across analogous statutory schemes. |
| Musammat Ali Begam v. Badr-ul-Islam Ali Khan | The suit must conform exactly to the terms of consent; representative character survives subsequent events. | Quoted to articulate that consent is joint and must be jointly acted upon. |
| Raja Anand Rao v. Ramdas Daduram | Death of a plaintiff after valid institution does not render the suit incompetent. | Distinguished: while post-institution death is harmless, pre-institution non-joinder is fatal. |
| Sheo Ram v. Ram Chand, AIR 1940 Lah 356 | Contrary view that survivors could sue without fresh consent. | Expressly disapproved; the Court declined to follow this Lahore ruling. |
Court's Reasoning and Analysis
The Supreme Court began by noting that Section 92(1) CPC permits a representative suit concerning a public charitable or religious trust only when instituted by the Advocate-General or by “two or more persons having an interest in the trust” who have secured the Advocate-General’s written consent. The consent granted on 10 September 1955 was given jointly to four named individuals.
Drawing upon a line of authorities, the Court reasoned that such consent creates a joint authority. Because the authority is joint, all authorised persons must act together when instituting the suit. A suit instituted by fewer than the authorised number therefore fails to comply with the statutory condition precedent.
The Court emphasised that once a representative suit is validly instituted, ordinary procedural rules apply—e.g., death of a plaintiff during the pendency of the suit does not vitiate proceedings. However, any defect existing at the moment of institution goes to the root of jurisdiction and cannot be cured by subsequent events or by impleading the non-joining person as a defendant.
After analysing and endorsing precedents that enforce strict conformity with the consent (and expressly disapproving the contrary Lahore view in Sheo Ram), the Court concluded that the present suit—filed by only three of the four persons to whom consent had been granted—was not instituted in accordance with Section 92(1) CPC.
Holding and Implications
Appeal Dismissed; suit held not maintainable.
The Supreme Court affirmed the High Court’s decision, resulting in dismissal of the suit for want of proper authorisation. The appellants are free to obtain fresh consent from the Advocate-General (or Collector, as the case may be) and file a new suit conforming to Section 92. No costs were awarded, and while the decision reinforces existing jurisprudence on Section 92’s mandatory requirements, it does not establish a new legal principle.
Bachawat, J.— On September 10, 1955, Narain Lal, Mool Chand, Mangilal and Kesharichand obtained the consent in writing of the Advocate-General, Rajasthan to institute a suit against the respondents under Section 92 of the Code of Civil Procedure. The consent was in these terms:
“For the reasons detailed above I grant permission to the applicants Sarvashri (1) Narain Lal, (2) Mool Chand, (3) Mangilal and (4) Seth Kesharichand for filing suit against the opposite parties Shri Malilal Kasliwal and 27 other members and office holders of the executive committee Jain Atishaya Kshetra Shri Mahabir Swami Temple Chandangaon, for the reliefs detailed in para 28 sub-paras 1 to 5 and 7 of the draft plaint filed by them before me.”
Shortly thereafter Mangi Lal died. On March 6, 1956 Narain Lal, Mool Chand and Kesari Chand instituted a suit against the respondents under Section 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as a whole and for other reliefs. On March 9, 1958 Kesari Chand died. The trial court raised and tried the following preliminary issue:
“Whether the suit is not maintainable on the strength of the permission obtained by the plaintiffs along with Mangi Lal who died prior to the institution of the suit?”
The trial court held that the suit was maintainable. The High Court in its revisional jurisdiction set aside the order of the trial court and held that the suit was not maintainable. The present appeal has been filed from the order of the High Court by special leave.
2. A suit claiming any of the reliefs specified in sub-section (1) of Section 92 of the Code of Civil Procedure in respect of a trust for public purposes of a charitable or religious nature may be instituted by 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”, and save as provided by the Religious Endowments Act 1863 and certain other laws, no suit claiming such reliefs in respect of any such trust can be instituted except in conformity with sub-section (1) of Section 92. In the present case, four persons obtained the necessary sanction of the Advocate-General, one of them died before the suit was filed, and the remaining three, instituted the suit. The question is whether the suit is brought in conformity with Section 92(1).
3. The decided cases show that a suit under Section 92 must be brought by all the persons to whom the sanction of the Advocate-General has been given, and a suit instituted by some of them only is not maintainable. In Muddala Bhagavannarayana v. Vadapalli Perumallacharyulu where the, sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and had refused to join as plaintiffs, it was held that the suit was not maintainable. In Pitchayya v. Venkatakrishnamacharlu, where the sanction was given to three persons, the court held that the suit instituted by two of them was invalidly brought and the defect could not be cured by impleading the other person as a defendant. In Sibte Rasul v. Sibte Nabi ILR (1943) All 112, where four persons obtained the sanction and the suit was instituted by three of them, it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of the delivery of the judgment. We may add that in Venkatesha Malia v.B. Ramaya Hegade ILR 38 Mad 1192, where the sanction to sue under Section 18 of the Religious Endowments Act 1863 was given by the district judge to two persons, it was held that only one of them could not institute the suit.
4. We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent. As Sir George Rankin said in Musammat Ali Begam v. Badr-ul-Islam Ali Khan, “where the consent in writing of the Advocate-General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only. The suit as instituted must conform to the consent.” Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Rao v. Ramdas Daduram, and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, see Musammat Ali Begam v. Badr-ul-Islam Ali Khan.
5. In Sheo Ram v. Ram Chand AIR 1940 Lah 356 the sanction of the Collector to bring a suit under Section 92 was given to twenty persons. One of them died before the suit was brought and the remaining nineteen instituted the suit. Skemp, J. held that in view of the two Privy Council rulings the suit was validly instituted. But he erroneously assumed that in Musammat Ali Begam v. Badr-ul- Islam Ali Khan it was held that where the sanction had been given to three persons, a suit by two of them only was validly instituted. From the report of Raja Anand Rao v. Ramdas Daduram, it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent. We are unable to agree with the Lahore ruling. Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent. Fresh sanction must be obtained by the survivors for the institution of the suit. We must hold that the suit brought by the appellants was competent. The High Court rightly held that the suit was not maintainable. This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate-General or Collector.
6. In the result, the appeal is dismissed without costs.
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