# NARAIN LAL & ORS v. SUNDER LAL (DEAD) & ORS

- **Citation:** [1967] 3 S.C.R. 916
- **Court:** Supreme Court of India
- **Decided:** 1967-05-04
- **Case number:** Civil Appeal No. 767 of 1964
- **Bench:** R. S. Bachawat, J. M. Shelat, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/narain-lal-ors-v-sunder-lal-dead-ors-4038
- **Pages:** 4

## Headnote

lJ
Code of Civil Procedure (Act 5 of 1908), s. 92- Per111issio11
of
Advocate-Ge11eral for fili11g suit-Permission give11 •fo four perso11s011e dies-Surviving three whether can file suit without obtalni11g fresh
pennission.
Four persons
obtained the
consent
of the Advocate-General
of
Rajasthan to institute a suit against the respondents under s. 92 of the
Code of Civil Procedure. Shortly thereafter one of the said four persons
died and the suit was instituted by the three survivors.
On the preliminary issue whether the suit filed by three persons, when the permission
had been given to four, was maintainable, the trial court held that it was.
The High Court, however, in revision held the suit not to be maintainable.
Appeal was filed in this Court by special leave.
· HELD : An authority to sue given to several persons without more
is a joint authority and must be exercised by all jointly, and a suit by
some of them only i~ not competent. When sanction in the present case
was given to four peisons and one of them died before the institution of
the suit, a suit by the remaining three was incompetent. Fresh sanction
must be obtained by the survivors for the institution of·the suit. [918D-E,
~19Bl
Muddala
Blianavan11araya11a
\'.
Jladapa/li
Perunwl/aclzaryulu,
29
M.LJ. 231, Pitclwyya & Anr, v. Venkarakris/111amacharlu
&
eleven
Ors. 1.L.R. 5; Mad. 223, Sible Rasul v. Sibte Nabi & Ors. I.L.R. (1943)
All
112 Venkc;tesha Malia v.
B. Ramaya Hegade and
twelve
Ors.
I.L.R. 38 Mad. 1192, Musammat Ali Begam v. Badr-11/-Js/am Ali Khan,
L.R. 65 I.A. 198, Raja Anand Rao v. Ramdas Dad11ram, L.R. 48 I.A. 12
and Sheu Ram v. Ram C/iand & Ors., A.I.R. 1940 Lah. 356, referred to.

## Text

NARAIN LAL & ORS.
A
v.
SUNDER LAL (DEAD) & ORS.
May 4, 1967 .
[R. S. BACHAWAT, J. M. SHELAT AND V. BHARGAVA, JJ.J
lJ
Code of Civil Procedure (Act 5 of 1908), s. 92- Per111issio11
of
Advocate-Ge11eral for fili11g suit-Permission give11 •fo four perso11s011e dies-Surviving three whether can file suit without obtalni11g fresh
pennission.
Four persons
obtained the
consent
of the Advocate-General
of
Rajasthan to institute a suit against the respondents under s. 92 of the
Code of Civil Procedure. Shortly thereafter one of the said four persons
died and the suit was instituted by the three survivors.
On the preliminary issue whether the suit filed by three persons, when the permission
had been given to four, was maintainable, the trial court held that it was.
The High Court, however, in revision held the suit not to be maintainable.
Appeal was filed in this Court by special leave.
· HELD : An authority to sue given to several persons without more
is a joint authority and must be exercised by all jointly, and a suit by
some of them only i~ not competent. When sanction in the present case
was given to four peisons and one of them died before the institution of
the suit, a suit by the remaining three was incompetent. Fresh sanction
must be obtained by the survivors for the institution of·the suit. [918D-E,
~19Bl
Muddala
Blianavan11araya11a
\'.
Jladapa/li
Perunwl/aclzaryulu,
29
M.LJ. 231, Pitclwyya & Anr, v. Venkarakris/111amacharlu
&
eleven
Ors. 1.L.R. 5; Mad. 223, Sible Rasul v. Sibte Nabi & Ors. I.L.R. (1943)
All
112 Venkc;tesha Malia v.
B. Ramaya Hegade and
twelve
Ors.
I.L.R. 38 Mad. 1192, Musammat Ali Begam v. Badr-11/-Js/am Ali Khan,
L.R. 65 I.A. 198, Raja Anand Rao v. Ramdas Dad11ram, L.R. 48 I.A. 12
and Sheu Ram v. Ram C/iand & Ors., A.I.R. 1940 Lah. 356, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 767 of
1964.
Appeal by special leave from the judgment and order dated
August 14, 1961 of the Rajasthan High Court in D. P. Civil
Misc. Application No. 128 of 1960.
Gopi Nath Kunzru, W. S. Barlingay and Ganpat Rai, for the
appellant.
C. B. Agar1m/a, K. K. Jain, H. K. Puri and Uma Mehta,
for respondents Nos. 3, 4, 5, 7, 12, 13, 15-18, 71, 23 and 24.
The Judgment of the Court was delivered by
Bacbawat, J.
On September 10, 1955, Narain Lal, Moo!
Chand Mangilal and Kesharichan'd obtained the consent in writing of 'the Advocate General, Rajasthan to institute a suit against
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NARAIN LAL v. SUNDER LAL ( Bachawat, I.)
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the respondents under S. 92 of the Code of Civil Procedure. The
consent was in these tenns :
"For the reasons detailed above I grant pennission
to the applicants Sarvashri ( 1) Narainlal,
(2) Moo!
Chand, ( 3) Mangilal and < 4) Seth. Keshari~hand !or
filing suit against the opposite parttes 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 S and 7 of the draft
plaint filed by them before me."
Shortly thereafter Mangi Lal died.
On !Vlarch 6, ~956, _Narain
Lal Moo! Chand and Kesari Chand instituted a suit agamst the
respondents under S. 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 c~aritable tru?t for
the benefit of the Shwetambar Sangh of the Jam commumty 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 foilowin_g 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 tria.1 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.
A suit claiming any of the reliefs specified in sub-s. ( 1) of
S. 92 of the Code of Civil Procedm·e in respect of a trust for
public purposes of a charitable or religious nature may be institut~d by t~e Advocate-General or "two or more persons having
a~ mterest m the trust and having obtained the consent in writing
of the Advocate-General", and sa~e as provided by the Religious
Endown:ents. Act 1863 and certam other laws, no suit claiming
;uch reliefs. 111 ~espect of any such trust can be instituted except
111 conformity with sub-s. (I) of S. 92.
In the present case four
persons obtai~~d the necessary sanction of the Advocate General,
one. of them died. before the suit was filed, .and the remaining three
instituted t~e si.!H·
The question is whether the suit is brought
n1 conformity with S. 92 (1).
The decided cases show that a suit under s. 92
must
be
b!·ought by all the persons to whom the sanction of the Advocate
General has been gi¥en, and a suit instituted by some of them
918
SUPREME COURT REPORTS
(1967) 3 S.C.R.
only is not maintainable. In Muddala
Bhagavannarayana
v.
A
V adapalli Perumallacharyulu(') where the sanction was given to
four persons and two of them alone brought the sμit 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 and another v. Venkatakrishnama·
charlu and eleven others('), where the sanction was given to
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three persons, the court held that the suit instituted by two of them
was invalidly brought and the defect could not be cured by im·
pleading the other person as a gefendant.
In Sibte Rasul v.
Sibte Nabi and others('), where four. persons obtained the sane·
tion. 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
C
the judgment.
We may add that in Venkatesha Malia ·v.
B.
Ramaya Hegade and twelve others(') where the sanction to sue
under S. 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.
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-ullslam 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( 6), 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-lslam Ali
Khan(•).
In Shea Ram v. Ram Chand and others(1), the sanction of the
Collector to bring a suit under S. 92 was given to twenty persons.
One of them died before the suit was brought and the remaining
nineteen instituted the sutt. Skempg, J. held that in view of the
two Privy Council rulings the suit was validly instituted.
But he
erroneously as$Ullled that in Musammat Ali Begam v. Badr-ul·
I slam Ali -Khan ( •) it was held that where the sanction had been
given to three persons, a suit by two of them only was validly
(I) 29 M.LJ. 231.
(2) I.LR. 53 Mad. 223.
'.3) I.L.R. (1943) All. 112.
(4) I.LR. 38 Mad.1192.
(5) l.L.R. 65 I. A. tn::
(6) L.R. 48 I.A. 12.
(7) A.l.R. 1940 Lah. 356.
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NARAIN LAL v. SUNDER LAL (Bachawat, J.)
919
instituted.
From the report of Raja Anand Rao v. Ramdas
Daduram ( 1), it is not clear whether all the persons to whom the
sanction was given brought the suit, and the wint 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
incompetent.
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.
In the result, the appeal is dismissed without costs.
G.C.
Appeal dismissed.
(I) LR. 48 l.A. 12~--
L9Sur.CI 167-1;