(Prayer: Appeal (disposed of on 19-2-1943) against the decree of the Court of the Subordinate Judge of South Kanara in O.S. No. 10 of 1937.)

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-Tirupati 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 S. 92 of the Civil Procedure Code 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 v. Tiruchitrambala Vinayakar (58 Mad. 988 [LQ/MadHC/1935/187] = 42 L.W. 304 (F.B.) 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 Chetti (I.L.R. 1938 Mad. 39 = 46 L.W. 426) 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 S. 92 of the Civil Procedure Code and requires the sanction of the Advocate General for its institution.

The effect of S. 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 S. 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 charitable 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-S. (1) shall be instituted in respect of any such trust as therein referred to except in conformity with the provisions of that sub-section.

There was no corresponding provision in the Code of 185

9. S. 539 of the Code of 1877 was substantially the same as Sub-S. (1) of S. 92 of the present Code and it was continued in S. 539 of the Code of 188

2. The Codes of 1877 and 1882 did not, however, embody the provision of Sub-S. (2). The insertion of Sub-S. (2) makes the previous sanction of the Advocate General imperative for the maintenance of a suit which falls within the purview of Sub-S. (1).

In Nellayyappa Pillai v. Thangamma Nachiar (21 Mad. 406) a Bench of this Court held that the introduction of S. 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 under S. 30 of the Code of 1882, which corresponds to O. 1, R. 8 of the present Code, but he did not obtain the sanction of the Advocate General under S. 53

9. The Court accepted the argument that S. 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 S. 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 Johurry (33 Cal. 789) [LQ/CalHC/1906/11] 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 (14 L.W. 238 (F.B.) a Full Bench of this Court consisting of Ayling, Coutts Trotter and Kumaraswami Sastriar, JJ. considered that S. 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 under 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-S. (2), Nellayyappa Pillai v. Thangamma Nachiar (21 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 S. 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 v. Narasinga Poricha (45 Mad. 113 [LQ/MadHC/1921/171] = 15 L.W. 18 (F.B.) 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 S. 9

2. Ayling, J. who was then officiating as the Chief Justice, distinguished the decision in Saminatha Pillai v. Sundaresa Pillai (14 L.W. 238 (F.B.) on the ground 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 Cl. 1(d) of S. 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 thei r 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 Abdur Rahim v. Mohamed Barkat Ali (55 Cal. 519 = 27 L.W. 339 (P.C.) where their Lordships rejected the argument that all suits founded upon a breach of trust for the public purposes of a charitable or religious nature, irrespective of the relief sought, must be brought in accordance with the provisions of S. 9

2. 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-S. (1) shall be instituted in conformity with the provisions of S. 92, Sub-S. (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-S. (1) of S. 92 and in these 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-S. (1) of S. 92.

This brings us to the consideration of the case which has really given rise to this reference Janaki Bai v. Tiruchitrambala Vinayakar (58 Mad. 988 [LQ/MadHC/1935/187] = 42 L.W. 304 (F.B.). 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 Abdur Rahim v. Mohamed Barkat Ali (55 Cal. 519 = 27 L.W. 339 (P.C.) was made the basis for holding that the question whether a suit falls within S. 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 (I.L.R. 1938 Mad. 39 = 46 L.W. 426). 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 v. Narasinga Poricha (45 Mad. 113 [LQ/MadHC/1921/171] = 15 L.W. 18 (F.B.) had been set at naught by the judgment of the Privy Council in Abdur Rahim v. Mohamed Barkat Ali (55 Cal. 519 = 27 L.W. 339 (P.C.) and by this Court in Janaki Bai v. Tiruchitrambala Vinayakar (58 Mad. 988 [LQ/MadHC/1935/187] = 42 L.W. 304 (F.B.). In Shanmukham Chetti v. Govinda Chetti (I.L.R. 1938 Mad. 39 = 46 L.W. 426) I was sitting with Varadachariar J. and I expressed the opinion that S. 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 S. 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 v. Tiruchitrambala Vinayakar (58 Mad. 988 [LQ/MadHC/1935/187] = 42 L.W. 304 (F.B.) that the question whether a suit falls within S. 92 depends, not upon the character of the plaintiffs suit, but on the nature of the relief sought. Varadachariar, J. also agreed with the statement in Mullas Civil Procedure Code, page 309, 10th edition, that it is not every suit claiming any of the reliefs specified in Sub-S. (1) of S. 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 (I.L.R. 1938 Mad. 39 = 46 L.W. 426). On the other hand we find ourselves in full agreement with the opinion of Varadachariar, J. that in deciding whether a suit falls within S. 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 Abdur Rahim v. Mohamed Barkat Ali (55 Cal. 519 = 27 L.W. 339 (P.C.) lends no support for the opinion expressed by the Full Bench in Janaki Bai v. Tiruchitrambala Vinayakar (58 Mad. 988 [LQ/MadHC/1935/187] = 42 L.W. 304 (F.B.).

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 S. 9

2. 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 S. 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.