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Case Number

Appeal No. 418 of 1924.

Advocates

The Advocate-General and Mr. P. V. Vallabhacharlu for the Appellants.
Messrs. S. Varadachariar, V. Govindarajachari, K. Kameswara Rao and K. Viswanatha Sastri for the Respondents.

Judges

Sir C. V. Kumamswami Sastriar
Kt.
Pakenham Walsh, JJ.

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Smart Summary

Legal Opinion Summary

Factual and Procedural Background

Two plaintiffs filed a suit under Section 92 of the Civil Procedure Code after obtaining a Collector's sanction in the names of three persons (Kavata Venkata Subramanyan; Davuluri Pitchayya; Kosaraju Reddayya) with time limited to six months. The sanction document (Ex. A) authorised those three named persons to bring a scheme suit in respect of the affairs of the Sree Varadarajaswami temple at Pedapullivaru Village, Repalle Taluk, alleged to be mismanaged by the present trustee.

Although sanction was for a scheme suit, the plaint sought multiple prayers: (1) framing a scheme for general management (within scope), and additionally (2) removal of defendants 1 to 10, (3) appointment of new trustees, (4) vesting temple properties in trustees appointed by the Court, and (5) appointment of a Receiver and other reliefs (all beyond the scope of the sanction). Only two of the three persons named in the sanction (Pichayya and Reddayya) filed the suit; the first-named person (Venkatasubramaniam) did not join as plaintiff and was impleaded as the 11th defendant.

Venkatasubramaniam filed an affidavit claiming he left the village on private business after sanction was obtained, could not cooperate in filing the suit within the six-month period, and permitted the suit to go forward in his absence. The defendants filed a counter-affidavit denying this account and alleging other motives for his non-joinder.

In the lower Court (Subordinate Judge), the suit was dismissed. The Subordinate Judge found that the defendants (the Archakas) had been regularly performing the temple services and that no misconduct was proved; he also held that the suit was bad because only two of the three sanction-holders had filed it.

The matter reached the appellate Court on appeal by the plaintiffs. The appellate Court considered the validity and scope of the sanction, the effect of non-joinder of the named sanction-holder, the bona fides of the plaintiffs, and the maintainability of the suit under Section 92.

Legal Issues Presented

Whether a suit under Section 92 of the Civil Procedure Code, for which the Collector's sanction was given to three specifically named persons, is maintainable if only two of those sanction-holders institute the suit.
Whether the plaint's prayers other than framing a scheme (i.e., removal of trustees, appointment of new trustees, vesting of properties, appointment of Receiver) were within the scope of the sanction and therefore capable of being granted.
Whether the eleventh defendant (Venkatasubramaniam), who had been named in the sanction but not joined as a plaintiff, should be transposed as a plaintiff at the appellate stage to cure any defect in institution of the suit.

Arguments of the Parties

Plaintiffs' Arguments and Evidence

Pichayya and Reddayya relied on the Collector's sanction (Ex. A) to institute a scheme suit concerning alleged mismanagement of the temple.
The plaint alleged various acts of misconduct by the archakas and sought multiple remedies; the first prayer (framing a scheme) aligned with the sanction.
Venkatasubramaniam, in an affidavit, explained non-joinder by stating he left Pedapullivaru on private business after sanction was obtained, could not cooperate in preparing or filing the plaint within six months, and consented to the suit proceeding in his absence.
The first plaintiff's own testimony indicated enmity with the defendants and admitted long-standing estrangement; the second plaintiff did not give evidence despite allegations in the plaint.

Defendants' Arguments and Evidence

Defendants objected in the lower Court that the suit was invalid because only two of the three persons to whom sanction was granted filed the suit; this objection was raised and covered by issues in the trial Court.
The counter-affidavit contested Venkatasubramaniam's claimed absence, asserting instead that he declined to join because of disputes over filing a separate scheme suit for a Siva temple and because the present plaintiffs refused to cooperate concerning that other temple.
Defendant evidence (found credible by the Subordinate Judge) supported that the archakas regularly performed the temple services and sevas set out in the original trust deed (Ex. I), undermining plaintiffs' charges of misconduct.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Srinivasa v. Venkata	That reliefs sought beyond the scope of the sanction could not be granted.	Used to support the statement that, apart from the first prayer for a scheme, all other prayers in the plaint were outside the scope of the Collector's sanction and could not have been granted.
Sayad Hussein Miyan v. Collector of Kaira (Jardine and Ranade, JJ.)	The requirement of prior sanction protects trust funds and trustees from vexatious suits; high official scrutiny prevents frivolous or improper suits.	Quoted to illustrate the protective object of the sanction requirement and to support the appellate Court's emphasis on safeguarding institutions and trustees against vexatious or improper litigants.
Venkatesha Malia v. Ramaya Hegade	Sanctions for instituting suits against trustees must be construed strictly; where sanction is required, it is a condition precedent to instituting the suit; joint sanction may be necessary to safeguard against improper plaintiffs.	Relied upon for the proposition that sanction should be strictly construed and that where sanction is given to more than one person, the sanctioned status of each named person is material to the right to sue; supports the view that one of two cannot sue alone when sanction is joint.
Maddala Bagavannarayana v. Vadapalli Perumallacharyulu	Where sanction under Section 92 was given to more than two persons, two of them alone cannot sue; the persons authorised to sue are all those named in the sanction.	Directly applied to hold that the language and purpose of Section 92 require that where the Collector's sanction names more than two persons, all those persons authorised must exercise the power to sue; supported dismissal of suit instituted by only two of the three named persons.

Court's Reasoning and Analysis

The Court proceeded by examining first the nature and scope of the Collector's sanction and then the factual circumstances of non-joinder of the first-named sanction-holder. The reasoning unfolded in several linked steps:

Validity and scope of sanction: The Collector's sanction expressly authorised the three named persons to "bring a scheme suit" within six months. The Court emphasised that the sanction was limited in scope and that, apart from a prayer for framing a scheme, other reliefs in the plaint were not within that sanction and therefore could not be granted (invoking Srinivasa v. Venkata).
Non-joinder and factual findings: The record showed that only two of the three authorised persons filed the suit; Venkatasubramaniam was impleaded as a defendant and later sought transposition as an appellant. His affidavit asserted absence from the village and non-participation; the defendants' counter-affidavit gave an alternative account (refusal to join due to disputes over another temple suit). The trial Court had found the defendants' evidence credible and that plaintiffs' witnesses were partisan.
Bona fides and motives: The appellate Court expressed scepticism about Venkatasubramaniam's explanation and observed indicia of lack of bona fides by the plaintiffs: the first plaintiff's enmity with the defendants, admission of false or unproven charges, and the inclusion in the plaint of charges and prayers outside the sanction's scope. While motive is immaterial if a good cause of action exists, the Court referred to motive when exercising its discretion as bearing on transposition and curing defects.
Purpose of Section 92 and protective rationale: The Court analysed the object of requiring prior sanction under Section 92 — to safeguard the public interest, the institution, and trustees against vexatious or improper suits and to ensure the persons authorised are suitable to conduct representative litigation. It noted practical concerns (risk of "men of straw", impecunious or irresponsible plaintiffs, and the need to ensure recovery of costs if the suit fails).
Application of authorities and statutory language: Relying on cited authorities (including Maddala Bagavannarayana and Venkatesha Malia), the Court concluded that when sanction is granted by name to more than two persons, the proper exercise of the power to institute the suit requires the participation of all named sanction-holders; two of three cannot sue alone. The Court rejected analogies to suits by trustees and collateral doctrines that might permit transposition or cure defects where the suit was not properly instituted in the first place.
Conclusion on maintainability: Because the suit had not been properly instituted (only two of three named sanction-holders filed), the Court held the suit was not maintainable and should be dismissed. The Court considered this ground dispositive and therefore declined to decide the subsidiary question of the legal character of the trust or gift concerning the archakas.

Holding and Implications

APPEAL DISMISSED.

Direct effects ordered by the Court:

The appeal was dismissed (the trial Court's dismissal was upheld) on the ground that the suit was not properly instituted because only two of the three persons named in the Collector's sanction filed the suit.
Costs were awarded to defendants 1 to 10; the appeal was dismissed with costs of those defendants. The Court allowed Rs. 250 in vakil's fees in the lower Court (as provided in the memorandum of objections).

Broader implications: The opinion emphasises the protective purpose of the sanction requirement under Section 92 and follows earlier authorities in holding that a sanction naming more than two persons must be exercised by those persons; the Court did not purport to create a novel precedent beyond applying and following existing authorities. The opinion did not discuss any additional, broader legal consequences beyond the direct effect on the parties in this case.

N.R.R — Appeal dismissed.

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Davular Pitohayya v. Divi Venkatakrishnamacharlu

This appeal arises out of a suit filed under Sect. 92 of the Civil Procedure Code by two plaintiffs who obtained the sanction of the Collector. The Collector's sanction which is filed as Ex. A in the case runs as follows:

“Permission under Sect. 92, Civil Procedure Code is granted to the three persons named below to bring a scheme suit in respect of the affairs of the temple of Sree Varadarajaswami Varu of Pedapullivaru Village, Repalle Taluk, which are reported to be mismanaged by the present trustee.

1. Kavata Venkata Subramanyan.

2. Davuluri Pitchayya.

3. Kosaraju Reddayya.

Time six months.

2. The Tahsildar, Repalle, will please report the result at the end of the period.”

This sanction was obtained without notice to the defendants but this makes no difference as regards the validity of the sanction. Having got the sanction, two out of the three persons namely, Pichayya and Reddayya filed the suit. Though the sanction was only given to bring a scheme suit, the prayers in the plaint were (1) for a scheme to be framed for the general management of the temple.

(2) for the removal of defendants 1 to 10

(3) for the appointment of new trustees

(4) for an order vesting the temple properties in the trustees appointed by the Court

(5) for the appointment of Receiver and other reliefs.

Obviously, except the first prayer, all the other prayers are outside the scope of the sanction. No relief could have been granted with reference to them, See Srinivasa v. Venkata(1).

Venkatasubramaniam who was the first of the three persons to whom sanction was given did not join as a plaintiff and he was impleaded as the 11th defendant. It is alleged in paragraph 12 of the plaint that the 11th defendant was added as a pro forma defendant as he is not at present available to join as plaintiff. An application is filed before us to transfer him as an appellant. In the affidavit filed by Venkatasubramaniam all that is stated is that after the sanction was obtained he was obliged to leave Pedapullivaru on private business and could not co-operate with the other two persons in filing the suit and that as he was not available even on the last day of limitation the suit had to be filed by the other two persons. He says that he allowed the suit to go ex parte as he was willing that it should be prosecuted. The counter-affidavit filed denies the fact that Venkatasubramaniam was not in Pedapullivaru on the date the suit was filed and states that the real reason was that the present appellants and Venkatasubramaniam applied for sanction to file scheme suits both in regard to the temple in question and a Siva temple in Pedapullivaru and that Venkatasubramaniam was interested in the Siva temple, that after obtaining the sanction the appellants refused to file a scheme suit in regard to the Siva temple, for, the Archakas of the temple were their friends and belonged to their faction and that as the present appellants refused to join him in filing the suit with regard to Siva temple, Venkatasubramaniam declined to join the appellants in filing the present suit.

Although the defendants took the objection in the lower Court that the suit was bad because only two of the three persons to whom sanction was given filed the suit and although issues were raised covering that contention, no application was made either by Venkatasubramaniam or by the other two plaintiffs to transpose Venkatasubramaniam as a plaintiff in the lower Court.

The Subordinate Judge dismissed the suit. He found on the facts that no misconduct was proved against the defendants (Archakas) and he held that the suit as laid was bad as two alone out of the three persons to whom sanction was given could not file the suit. In paragraph 10 of his judgment the learned Subordinate Judge says:—

“The plaintiffs' witnesses themselves have admitted that the defendants have been doing the Nitya-naivedya Deeparathana, Tirunakshatralu, and Pakshotsva or Ekadasi Utsavams. They wont admit that the Masotsava and Sukravarlu sevas have been done. But these witnesses of the plaintiffs are either partisans of the plaintiffs or are relations of the plaintiffs and most of them have come forward without summons. There is ample evidence on the side of the defendants, which I believe to be true, that the Sukravaramsevalu and the Masotsavam or the seva on Sravana Nakshatra day in each month also have been done regularly by the defendants 1 to 10 in addition to other sevas not referred to in Ex. I (original trust deed). I therefore find that the defendants 1 to 10 have been doing regularly all the services and sevas referred to in Ex. I “.

He finds that the defendants are not liable to be removed even assuming that Ex. I creates a trust in favour of the deity.

So far as the first plaintiff is concerned, it is clear from his evidence that he has instituted this suit because of his enmity with the defendants and although in paragraph 8 of the plaint various charges of misconduct have been made, his evidence shows that some at least of the main charges are false. He admits that he and all the defendants have not been on speaking terms for the last 16 years, that during this period he never asked the Archakas why they were not properly doing the necessary things for the temple, that for the last 16 years the Archakas have not been inviting the karnam and the other village officials for the festivals, that the 1st defendant complained against him for making excess collections as the assistant karnam of the village and that he lost his branch postmastership on account of complaints made by the defendants. The 2nd plaintiff did not venture to give evidence although he alleged several acts of misconduct in the plaint.

We are not satisfied that the non-joinder of Venkatasubramaniam as a plaintiff was due to his absence from the village. If his affidavit is true, he left the village after the sanction was obtained on private business and could not co-operate with the other two persons in filing the suit in the lower Court. He says that he was absent even an the last day when the suit had to be filed because the sanction enured only for six months. If his affidavit is true, beyond obtaining the sanction, he took no part in the preparation or the filing of the plaint. This fact would be material in dealing with the other question as to whether the suit is properly framed. The probabilities point to the reason given by the Archakas in the counter-affidavit being a true one. We do not think that sufficient reasons have been made out for transposing the 11th defendant as a plaintiff even assuming that such a transposition would cure the original defect in the institution of the suit. We can find little bona fides in the matter. Although the sanction was only for filing a scheme suit, various charges of misconduct were made in the plaint with a view to support the prayer for the removal of the Archakas for which no sanction was given and these charges have been found to be false. Even on the first plaintiff's own evidence some of the charges could not be sustained. Enmity With the defendants and not a bona fide desire to safe-guard the interests of the temple seems to be the main motive for the suit. However if the plaintiffs can have a good cause of action motive would be immaterial but we refer to this only as a ground for not exercising our discretion in the matter.

As regards the maintainability of the suit we think that the suit by some only of the persons to whom sanction was given under Sect. 92 would not lie. The object of requiring sanction or permission before such suits are instituted under Sect. 92 is to safeguard not only the rights of the public but also the rights of the institution and the trustees. The suit being a representative suit, it is necessary to see that the persons who come forward are persons who have an interest in the temple and persons who can be safely entrusted with the conduct of the suit. Even though the whole public are technically parties, still the plaintiffs who file the suit have the conduct of the suit and very large powers in the shaping and the conduct of the suit. As a matter of general experience the public leave it to the plaintiffs to conduct all the proceedings and to take the various steps necessary for its successful prosecution. It is also for the benefit of the institution and of the trustees because it affords a safeguard against impecunious improper persons coming as plaintiffs and involving the trust in litigation and expenses and it is also a safe-guard that the persons are substantial persons from whom if the suit fails the costs can be recovered and not merely men of straw. If two out of three or more persons to whom sanction was given can file a suit, it may be that the substantial persons having got the order take no further part leaving the trustees and the institution remediless as regards the recovery of costs. The authority giving the sanction must consider the various aspects before giving the sanction and one important consideration should be as regards the status and position of those who come forward to represent the community. We may in this connection state that it would be more desirable, before giving the sanction that notice should be given to the institution or the trustees although it is not obligatory.

In Sayad Hussein Miyan v. Collector of Kaira Jardine and Ranade, JJ., observed:

“Turning to India it is obvious that the requirement of sanction protects trust funds and the trustees also from vexatious suits, as so great an officer as the Advocate-General will not sanction suits without enquiry about the motives, the merits, the expense and such bars as limitation.”

In Venkatesha Malia v. Ramaya Hegade(2), Sankaran Fair and Spencer, JJ., observed:

“Such sanctions for instituting suits against trustees have to be construed strictly without enlarging their scope, the object of requiring sanction being to protect managers from vexatious suits ……… 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.”.

Having regard to these considerations we think that where permission or sanction is given by name to more than two persons, that power should be exercised by them all.

So far as the authorities go, they support this view. The question directly arose for consideration in Maddala Bagavannarayana v. Vadapalli Perumallacharyulu(3) where Sir John Wallis, C. J., and Seshagiri Aiyar, J., held that where sanction is given under Sect. 92 of the Civil Procedure Code to more than two persons, two of them alone cannot sue. It appears from the facts of that case that four individuals obtained the sanction of the Collector under Sect. 92 of the Civil Procedure Code and that two of them alone brought the suits alleging that the other two have been gained over by the defendants and they refused to join in the suit. The contention was that sanction having been given by the Collector to four persons, two of them alone cannot sue without obtaining fresh sanction. The learned judges after referring to the terms of Sect. 92 observed:—

“We think the language used shows that the persons authorised to sue are all the persons to whom the consent has been given and not any two of them. On the opposite contention, there might be competition between the various persons authorised as to who should sue. Besides, the provision for giving consent to two or more persons shows that the legislature considered that in some cases it might not be desirable for only two to sue. In this connection it is worth mentioning that Romilly's Act, upon which this section was founded, enabled any two persons interested to apply, and that here the Legislature has empowered any two or more persons with the consent of the Advocate-General.”

A similar question arose as regards the religious Endowments Act where also sanction was necessary. In Venkatesha Malia v. Ramaya Hegade it was held that where sanction to sue is given to two persons under Sect. 18 of the Religious Endowments Act, one of them cannot sue alone and that the sanction granted under Sect. 18 was a condition precedent to the exercise of the right of suit. Sect. 14 of the Act empowers any person or persons interested in the institution to sue in cases of breaches of trust etc. Sect. 18 requires previous leave to be obtained from Court. It appears from the report of the case that when the suit came on for trial before the Judge who gave the sanction, though no issue was raised, a preliminary objection was taken that the suit was bad for the non-joinder of the other sanction-holder and the Judge upheld the contention.

Reference has been made by the learned Advocate-General to cases of suits by trustees; but those cases have no application as in such cases it is the trust which has the right of action and is the plaintiff and it is sufficient if all the trustees are present before the Court as plaintiffs or defendants. We may mention that even in the case of trusts where the act which gives rise to the cause of action is an act which has to be done by all the trustees together or in consultation with each other e.g, by putting an end to a lease it has been held that one or more trustees cannot by simply joining the other trustees give rise to a valid cause of action where the other trustees have not been consulted before the suit was filed. Similarly cases where it has been held that there is no abatement where one of two plaintiffs who obtains sanction dies or cases where it has been held that you can transpose parties after the suit is filed or allow new persons to come on as additional plaintiffs would have no application to cases like the present where the question is whether the suit has been rightly instituted. It is only after a suit has been rightly instituted, the public become constructive parties to the suit. If the suit is not properly instituted, there is no question of the Court treating the suit as one which is properly instituted and then remedy any defects by the addition of parties.

We are of opinion that the suit was not properly instituted and should be dismissed on that ground.

In the view we take of the law on this question it is not necessary for us to consider the other question as to whether there is a trust in favour of the temple, the Archakas being only trustees, or whether there is a gift to the archakas subject only to their performing the services mentioned in Ex. I and any surplus income can be appropriated by them for their own use.

The appeal fails and is dismissed with costs of defendants 1 to 10. In the memorandum of objections we allow Rs. 250 as vakil's fees in the lower Court.

N.R.RAppeal dismissed.

Davular Pitohayya v. Divi Venkatakrishnamacharlu

Legal Opinion Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Plaintiffs' Arguments and Evidence

Defendants' Arguments and Evidence

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Davular Pitohayya v. Divi Venkatakrishnamacharlu

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