Abdul Razack Sahib and Others vs A. Abdul Hamid Said and Others

Rajamannar, C.J.—The lower Court was right in dismissing the suit oh the ground that the sanction of the Advocate-General had not been

obtained for its institution. The suit clearly fell within the scope of Section 92, Civil P. C. The plaintiff on behalf o� all persons interested in a fund

which they call the ""Mecca Mathinya Imthath Fund"" prayed inter alia for a declaration that the defendants were the trustees of a trust known as

Mecca Mathinya Imthath Fund, for a true and proper account of the funds collected by the defendants, for a direction to the defendants to forward

the funds collected by them to their proper destination and for the appointment of a receiver. It is well settled that to determine whether a suit falls

within Rule 92, Civil P. C., we have to look at the plaint and the allegations therein and not to the written statement. The plaint clearly proceeds on

the footing thai the defendants are trustees though the plaintiffs allege that the defendants had committed breach of trust. Because the defendants

were repudiating the obligations on their part, the plaintiffs also wanted a declara-tion as to the trust nature of the funds collected by the defendants

and their position as trustees. But the inclusion of such a prayer would not take the suit out of the category of suits falling u/s 92, Civil P. C. This is

not a case in which the plaintiffs are suing to recover trust property from strangers or persons who according to the plaintiffs have no right to be in

possession of the trust properties. On the other hand, the plaintiffs say tint the defendants are trustees and are lawfully in possession of the funds;

only they charge them with dereliction of duty. The prayers fall clearly within the scope of Clauses (d) and (h) of Section 92.

Learned counsel for the plaintiffs-appel-lants relied upon certain decisions in support of his contention that the suit did not fall within Section 92,

but none of the decisions has any real bearing on the question which falls to be decided in this case. In Jamaluddin v. Mujtaba Hussain, 25 ALL.

631: 1903 A. W. N. 120 the only prayer was for a declaration that the property in suit was endowed property and could not be inherited as

ordinary property. The learned Judge pointed out that Section 539 of the then Code corresponding to Section 92 of the present Code provided

for a case in which there was an alleged breach of any express or constructive trust created for public, charitable or religious purpose or whenever

the direction of the Court is deemed necessary for the administration of any such trust. But the suit before them was not brought for any of the

purposes enunciated in Section 539, nor was it instituted for the granting of any such further or other reliefs as mentioned towards the end of that

section. The learnei Judges, therefore, held that the suit was maintainable without the sanction of the C. N. Eralappa Mudaliar and Another Vs. T.

Balakrishniah, was concerned with a suit brought u/s 92, Civil P. C. All that the learned Judges decided there was that to a suit u/s 92, a person

who sets up title adverse to the trust could also be impleaded as a defendant though a decree could not be passed against him to deliver

possession of the property. We need not refer in any detail to the Full Bench decision in the Tiruamlai Tirupati Devastanam Committee v.

Krishnayya, I. L. R. (1943) Mad. 619 : A. I. R. 1943 Mad. 466 which cannot possibly have even the remotest bearing on the point now in

dispute. In Ganpati v. Kaniyalal, 13 Pat. 65 : ) which was also relied upon, it was held that as none of Ganpat Pujari Vs. Kanaiyalal Marwari, the

reliefs prayed for in the case was of the nature set out in Clauses (a) to (h) of Sub-section (1) of Section 92, there was no bar on account of the

absence of the consent of the Advocate-General. It may be mentioned that in that case the suit was for a declaration that the property in dispute

belong to the general public and for eviction of the defendant from the same and for a permanent injunction restraining the defendant from

obstructing the general public from performance of pooja therein. There was no indication whatever in the plaint in that case that the defendant was

treated as a trustee. In the present case, it has already pointed out that the entire plaint proceeds on the assumption that the defendants were

trustees. There is nothing in Abdul Majid and Others Vs. Akhtar Nabi and Another, which in any way assists the appellants. On the other hand,

the ratio decidendi of that case is directly against the contention of the appellants. The learned Judges held that in a suit u/s 92, it was competant for

the Court to decide whether the trust in respect of which the suit was brought was a public charitable trust so as to attract the application of the

section. No doubt it was held that in a suit u/s 92, Civil P. C., no declaration of title or decree for possession could be obtained against total

strangers to the trust. But where the relief is claimed against even constructive trustees and trustees de son tort the suit would fall within Section 92.

It follows that the learned Subordinate Judge was right in holding that the suit was not maintainable without the sanction of the Advocate-

General.

The objection was taken to an amendment of the decree in respect of the pleader''s fee payable. The learned Judge in dismissing the suit with

costs of the defendants (one set) fixed the pleader''s fee at Rs. 200 to be divided equally between the two sets of defendants. The decree quite

properly embodied this direction. On 12-10-1946, nearly two months after the delivery of the judgment, an application was filed on behalf of the

defendants (I. A. No. 324 of 1946) praying that the decree may be amended by allowing one set of pleader''s fee based on the jurisdictional value

of Rs. 30,000. The application was opposed, but the learned Judge granted the application because he was convinced that the pleader''s fee

should have been calculated according to Rule 37 (b) (1), Legal Practitioners'' Fees Rules. We do not wish to say anything on the applicability of

that rule to this case. It may be the learned Judge was right in thinking that the pleader''s fee which should have been properly allowed was a fee

calculated under that rule. But in the concluding paragraph of the judgment), the learned Judge had specifically fixed the pleader''s fee at Rs. 200.

He might have been wrong in doing so, but the decree, if it has to be in conformity with the judgment, could only provide for the pleader''s fee as

fixed in the judgment. Now, assuming that the learned Judge was mistaken in fixing the fee at Rs. 200 in the judgment, the only course open to the

defendants to set the matters right was to apply for a review of the judgment or to prefer an appeal to this Court. Sections 151 and 152, Civil P.

C., in our opinion cannot be invoked in substitution of the specific remedies of review and appeal. Under these sections, relief cannot be granted

which properly falls within the scope of review and appeal. The learned Judge was in error in allowing the application for amendment of the

decree. The decree in so far as it was amended shall be set aside and the decree as originally framed shall be restored. As the appellants have

substan tially failed in the appeal, they shall pay the costs of this appeal to the contesting respondents.