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Judgment
Alfred Henry Lionel Leach, C.J.—This reference arises out of an appeal to this Court from a decree passed by the Subordinate Judge of
South Kanara, dismissing a suit instituted by the Tirumalai-Tirupathi Devasthanams Committee against the trustees of the Sri Venkataramana
Devara Bhandaram, a temple situate at Moolki within the jurisdiction of the Subordinate Court. The Tirupati temple, which lies a little over a
hundred miles from Madras, is one of the famous temples of South India and is held in the greatest veneration by all Hindus. From time immemorial
the trustees of the Moolki temple have maintained therein a box for the reception of offerings, usually of money or jewels, which devotees wish to
make to the deity of the Tirupati temple. The duties of the respondents in this connection are to see that the collection box is properly kept, from
time to time to count the offerings placed therein and then to hold them in safe custody until such time as they can conveniently be delivered to the
trustees of the Tirupati temple. In days gone by, a deputation of devout Hindus was sent from Moolki to Tirupati for this purpose. The members of
the deputation made the journey from Moolki to Tirupati as best they could, on foot or in carts. For many years a deputation has not been sent and
the offerings have remained with the trustees of the Moolki temple. The suit was to compel the defendants to render an account of the offerings
made since the last remittance and to deliver them to the plaintiffs. With regard to gifts in kind the plaintiffs asked for delivery of the articles
themselves or their value. In the trial Court the case proceeded on the basis that the defendants are trustees of the offerings and the learned Judges
who have made this reference have expressly held that they are trustees.
The Subordinate Judge considered that the suit fell within Section 92 of the CPC of 1908, and that as the sanction of the Advocate-General to
its institution had not been obtained it could not be maintained. If the judgment of this Court in Janaki Bai Ammal Vs. Sri Tiruchitrambala
Vinayakar of the temple, is to be deemed to embody a correct statement of the law, the suit would require the sanction of the Advocate-General.
Stated broadly, the decision there was that in deciding whether the sanction of the Advocate-General was required, the Court had to look at the
reliefs which were sought, without reference to the character in which the plaintiffs sued. This decision was criticised by Varadachariar, J., in
Shanmukham Chetti v. Govinda Chetli ILR (1938) Mad. 39 and the learned Judges in making this reference have indicated that in their opinion the
criticism is well founded. Consequently, they have referred for the decision of a Full Bench the following question,
whether a suit by the general trustee of a public temple against the trustee of a fund contributed by devotees, for being made over to that temple,
praying for a decree directing accounts and inquiries and for the recovery of the amounts to be ascertained on such accounts being taken, falls
within Section 92 of the CPC and requires the sanction of the Advocate-General for its institution.
The effect of Section 92 has often been debated and the reported decisions are not in harmony. To discuss them all would be a most laborious
task and would serve no useful purpose. The cases to which we propose to refer sufficiently disclose the conflict and therefore are ample for the
purpose of forming our own conclusions. We will take them in the order of date, but before embarking on the discussion it will be useful to set out
the provisions of Section 92 and to indicate its relation to the corresponding provisions of earlier Codes. The section now reads as follows:
(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a chartitable 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 institute a suit, whether contentious or not, in the
principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Provincial Government within the local limits of
whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree:
(a) removing any trustees;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863, no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in
respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.
There was no corresponding provision in the Code of 1859. Section 539 of the Code of 1877 was substantially the same as Sub-section (1) of
Section 92 of the present Code and it was continued in Section 539 of the Code of 1882. The Codes of 1877 and 1882 did not, however,
embody the provision of Sub-section (2). The insertion of Sub-section (2) makes the previous sanction of the Advocate-General imperative for the
maintenance of a suit which falls within the purview of Sub-section (1).
In Nellayyappa Pillai v. Thangamma Nachiar (1897) 8 M.L.J. 119 : ILR Mad. 406 a Bench of this Court held that the introduction of Section
539 of the Code of 1877 did not mean that public trustees were required to obtain the sanction of the Advocate-General in a suit to enforce the
obligations of special trustees in whose hands were temple funds and to obtain all appropriate reliefs for the protection of the interests of the
temple. There, the trustee of the temple sued to recover from the legal representatives of the trustee of a fund constituted for special purposes in
connection with temple worship money which had been misappropriated by him and to obtain the appointment of another person in his place. The
plaintiff had obtained leave to sue u/s 30 of the Code of 1882, which corresponds to Order 1, Rule 8, of the present Code, but he did not obtain
the sanction of the Advocate-General u/s 539. The Court accepted the argument that Section 539 was intended to apply to persons who, before
its enactment had, or were believed to have, no right to take proceedings for the purposes mentioned in the section and in their case the limitation
requiring previous sanction of the suit was one that was necessary to prevent an abuse of the powers conferred. We agree with the opinion
expressed in the judgment that Section 539 of the Code of 1882 did not take away rights in trustees then existing. The question was exhaustively
examined by Woodroffe, J., in Budree Das Mukin v. Chooni Lal Johnny I.L.R.(1906) Cal. 789 where he held that when persons sued, not to
establish the general rights of the public, but complained of a particular infringement of individual rights, the suit was not within the section and need
not be brought under it.
In Saminatha Pillai v. Sundaresa Pillai (1920) 14 L.W. 238 a Full Bench of this Court consisting of Ayling, Coutts-Trotter and Kumaraswami
Sastriar, JJ., considered that Section 92 of the present Code required the sanction of the Advocate-General in a case where the general trustee of
a temple sued a kattalaidar to recover the income of the special trust received by him and not paid to the temple. The appeal was first heard by
Wallis, C.J., and Krishnan, J., and as they differed, it was placed for decision, before a Bench of three Judges in accordance with the practice then
ruling. Wallis, C.J., thought that where there are several trustees of different properties vested in them respectively for the performance of various
services in the temple, the main or general trustee of the temple has no right to sue otherwise than u/s 92 for the failure of one of the other trustees
to perform his trust, and the decision of the Full Bench was in accordance with this decision. The learned Judges who composed the Full Bench
considered that as a result of the insertion of Sub-section (2), Nellayyappa Pillai v. Thangamma Nachiar (1897) 8 M.L.J. 119 : ILR Mad. 406 no
longer applied. While it may be accepted that the general trustee of a temple may not sue a special trustee except under the provisions of Section
92, when the general trustee is seeking relief, which, if granted, will lead to a change in the management of the special trust, it is quite a different
matter when the general trustee seeks to recover for the benefit of the temple monies in the hands of the special trustee, which the special trustee is
in duty bound to pay over to the general trustee.
In Appanna Poricha Vs. Narasinga Poricha and Others, , a Full Bench of five Judges of this Court of which Ayling and Kumaraswami Sastriar,
JJ., were again members, held that a suit by a trustee of a public trust against a co-trustee for accounts does not fall within Section 92. Ayling, J.,
who was then officiating as the Chief Justice, distinguished the decision in Saminatha Pillai v. Sundaresa Pillai (1920) 14 L.W. 238 on the ground
that that was a case in which a subordinate trustee was sued by a general trustee who as representing the general trust was really a beneficiary
under the subordinate trust, and was seeking as such, to enforce fulfilment of the latter. Kumaraswami Sastriar, J., expressed the opinion that the
words "" directing accounts and inquiries "" in Clause 1 (d) of Section 92 should be confined to suits by the Advocate-General, or by two or more
persons with his consent, against all the trustees for an account of their management, and not one or more trustees against the others, as each
trustee has a right to call upon the other to account to him for trust funds which he has received, even though the other trustee commits no breach
of trust.
We will now turn to the decision of the Privy Council in (1928) ILR 55 519 (Privy Council) where their Lordships rejected the argument that all
suits founded upon a breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought, must be brought in
accordance with the provisions of Section 92. In delivering the judgment of the Board, Lord Sinha said:
The short answer to that argument is that the Legislature has not so enacted. If it had so intended, it would have said so in express words, whereas
it said, on the contrary, that only suits claiming any of the reliefs specified in Sub-section (1) shall be instituted in conformity with the provisions of
Section 92, Sub-section (1).
In that case, the suit was instituted by the appellants for a declaration that certain properties belonged to a waqf connected with a mosque and that
they were not bound by a compromise decree passed in 1910. In the alternative they asked for the cancellation of the decree. Neither the relief
asked for in the first place nor the relief sought in the alternative fell within Sub-section (1) of Section 92 and in the circumstances the Judicial
Committee held that sanction was not requisite. Their Lordships were not called upon to decide whether the sanction of the Advocate-General is
required when trustees are suing to enforce rights which they possess as trustees and the reliefs sought, when viewed in the abstract, fall within
those mentioned in Sub-section (1) of Section 92.
This brings us to the consideration of the case which has really given rise to this reference, Janaki Bai Ammal Vs. Sri Tiruchitrambala Vinayakar
of the temple, . There, the defendant was sued as the trustee of a fund established for meeting the expenses of public worship and other duties,
including the carrying out of repairs to the temple. The plaintiff was the idol represented by the kariasthan. The defendant had refused to pay over
to the plaintiff the money which had been collected for these expenses. It was held that the sanction of the Advocate-General was necessary to the
institution of the suit. The passage just quoted from the judgment delivered by Lord Sinha in (1928) ILR 55 519 (Privy Council) was made the
basis for holding that the question whether a suit falls within Section 92 depends, not upon the character in which the plaintiff sues, but upon the
nature of the relief sought.
This decision was strongly criticised by Varadachariar, J., in Shanmukham Chetti v. Govinda Chetti ILR (1938) Mad. 39. There certain trustees
of a Hindu temple brought a suit against their co-trustees for an account, and it was said that the judgment in Appanna Poricha Vs. Narasinga
Poricha and Others, had been set at nought by the judgment of the Privy Council in (1928) ILR 55 519 (Privy Council) and by this Court in Janaki
Bai Ammal Vs. Sri Tiruchitrambala Vinayakar of the temple, . In Shanmukham Chetti v. Govinda Chetti ILR (1938) Mad. 39 I was sitting with
Varadachariar, J., and I expressed the opinion that Section 92 deals merely with the procedure to be adopted in a representative suit for relief in
respect of a public trust; that to come within the section, there must be a breach of trust or the necessity for the direction of the Court with regard
to the administration of a trust; that there must be at least two plaintiffs (unless, of course, the Advocate-General himself sues) and the Advocate-
General must give his sanction to the institution of the suit; and that in enacting section ""92 the Legislature never intended to take away the right of a
trustee to launch a suit for an account against a co-trustee. Varadachariar, J., agreed with this opinion and went on to express dissent from the
decision in Janaki Bai Ammal Vs. Sri Tiruchitrambala Vinayakar of the temple, that the question whether a suit falls within Section 92 depends, not
upon the character of the plaintiff''s suit, but on the nature of the relief sought. Varadachariar, J., also agreed with the statement in Mulla''s Civil
Procedure Code, page 309, 10th edition, that it is not every suit claiming any of the reliefs specified in Sub-section (1) of Section 92 that should be
brought with the consent of the Advocate-General, but those suits only which, besides claiming any of those reliefs, are brought by individuals as
representatives of the general public.
After hearing the arguments of learned Counsel in the present case we can see no reason for disagreeing with anything said in Shanmukham
Chetti v. Govinda Chetti ILR (1938) Mad. 39. On the other hand, we find ourselves in full agreement with the opinion of Varadachariar, J., that in
deciding whether a suit falls within Section 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing
and to the purpose for which the suit is brought. The judgment of the Privy Council in (1928) ILR 55 519 (Privy Council) lends no support for the
opinion expressed by the Full Bench in Janaki Bai Ammal Vs. Sri Tiruchitrambala Vinayakar of the temple, .
The trustees of the Tirupati temple, qua trustees, have the right of recovering from the trustees of the temple at Moolki monies which those
trustees have collected on behalf of the Tirupati temple, and this right is entirely independent of Section 92. The respondents are in law bound to
deliver to the plaintiffs the monies and offerings in kind obtained from the collection box referred to at the beginning of this judgment and it is the
duty of the plaintiffs to enforce delivery. The plaintiffs are not seeking to control the manner of collection or the duties of the respondents which are
peculiarly theirs. They are merely seeking to get from the respondents what the respondents hold on behalf of the plaintiffs. In these circumstances
we consider that Section 92 has no application here and we answer the reference in this sense.
The costs of this reference will be made costs in the appeal.