Prag Narain vs Brahmadatt and Another

Gopi Nath, J.—This is an appeal against the judgment and decree of the learned District Judge, Etah, dated 27th April. 1971. The suit giving rise to this appeal was filed u/s 92 of the Code of Civil Procedure. It related to the trust created by one Smt. Gomti widow of Hardeo Prasad in 1909. The relief claimed was for the removal of Sri Brahmadatt, defendant-respondent, who was the Sarbarakar of the trust on the ground that he had mismanaged the temple of Sri Radha Kishan, the subject-matter of the trust. Accounts were also claimed for from him.

One of the defences raised by the defendant-respondent was that the suit was not properly instituted as the sanction granted by the Advocate-General u/s 92 was to five persons while the suit was filed by only four. The learned judge negatived this contention and held that the suit was validly filed. On merits it was held that no act of mismanagement was committed by the defendant and the suit was liable to be dismissed on merits.

Aggrieved plaintiff filed the present appeal. The defendant-respondent filed an application before the Hon''ble the Chief Justice for the hearing of the appeal on the preliminary question as to whether the suit was maintainable, having been filed only by four out of the five persons, to whom sanction was granted by the Advocate-General. The preparation of the paper book was dispensed with for the time being. The appeal was accordingly listed for the consideration of the question whether the suit as filed was maintainable. I have heard learned counsel for the parties.

The permission granted to file the instant suit is Ext. 2. It has been granted in favour of five persons, namely, Sri Prag Narain, Sri Ram Das, Sri Mithhu Lal. Sri Jhau Lal and Sri Girdhari Lal. It appears that Mithhu Lal died after the grant of permission and before the institution of the suit which accordingly was filed only by four persons, namely. Prag Narain. Ram Das, Jhau Lal and Girdhari. The respondents'' contention is that the suit was not maintainable. Learned counsel for the appellant, has urged that the suit could be filed only by the surviving four permission holders.

The controversy is settled by the decision of the Supreme Court in Narain Lal and Others Vs. Sunder Lal (Dead) and Others, . It was held in that case that an authority to sue given by the Advocate-General u/s 92 to several persons is a joint authority and must be acted upon by all jointly.

"Where therefore sanction is given to four persons and one of them died before the institution of the suit, the suit by the remaining three is incompetent. In such a case a fresh sanction must be obtained by the survivors for the institution of the suit".

See also AIR 1938 184 (Privy Council) . See also Uma Shanker and Others Vs. Salig Ram and Others, . It is, therefore, clear that a suit u/s 92 cannot be filed by only some out of several persons to whom permission was granted under that section. In the instant case permission was granted to five persons while the suit was filed by only four. The suit, therefore, was not maintainable.

The appeal fails and is accordingly dismissed. In the circumstances of the case I make no order as to costs.