C.R. Neelakantan and Another vs Saidapet Annadhana Samajam

(1) This application by the plaintiff is to implead Saidapet Annadhana Samajam by its Secretary, C. Bakthavatsalam as second defendant. There is

a connected application for consequential amendment of the cause title and the several paragraphs of the plaint. That matter is not now before me

as the said application is not stamped or numbered.

(2) Applicant-plaintiff''s have filed the above suit for a scheme for safeguarding the properties of the aforesaid Samajam and its income, for proper

administration of the affairs of the Samajam, for removal of Bhaktavatsalam from all posts which he claims to hold as, according to the plaintiffs, he

has committed various acts of breach of trust, for appointment of a Commissioner-cum-Receiver to take inventory and for accounts etc. The plaint

is laid under S. 92 C.P.C. and the Advocate General has given consent to the institution of the suit as originally framed wherein C. Bhaktavatsalam

is impleaded as the sole defendant.

(3) The averments in the plaint are to the effect that asking advantage of the factions within the Samajam, Bhaktavatsamal has committed various

acts of mismanagement and breaches of trust deterimental to the interests of the Samjam and has usurped for himself all the key posts of the

Samajam. It is also alleged that subsequent to the order passed in I. A. 2628 of 1962 in O. S. 2178 of 1962 (City Civil Court) that the status quo

ante should continue, he has altered several rules of the Samajam and effected changes in the personnel of the Committee to suit his own ends and

that he had temporarily misappropriated the Government grant for teachers amounting to about Rs. 2000 so that it is the plaintiffs case that the

affairs of the Samajam are in a chaotic, deplorable and dangerous condition and that the funds of the Samajam are not utilised for the purpose for

which they are intended.

(4) Along with this plaint, the plaintiff moved an application, No, 806 of 1966 for appointing a Commissioner-cum-Receiver to take possession of

the account books, moveable and immovable properties of the Samajam and administer the affairs of the Samajam. The said application is still

pending. In the counter filed by defendant Bhaktavatsalam in the said application, he stated inter alia that the plaintiffs have no right to agitate for

reliefs in respect of the affairs of the Samajam especially when the Samajam is not party to the suit. It is to obviate this objection, and for an

effected and complete adjudication of all questions involved in the suit and further to make the scheme framed and the orders made in the suit

binding on the Samajam that the plaintiffs have now sought to implead the Samajam represented by its Secretary Bhaktavatsalam; and the short

point for consideration is whether this application is not maintainable in law and the applicants have no right to file the application.

(5) Bhaktavatsalam to whom notice was taken of this application, both in his individual capacity and as the Secretary of Saidapet Annadhana

Samajam, has filed counter on his own behalf and on behalf of the Saidapet Annadhana Samajam. The substantial objection taken by him is that

Saidapet Annadhana Samajam is at Society registered under the Societies Registration Act and the description of it as a public charitable institution

is made with ulterior motives. He would contend that he has been sued in his individual capacity and sanction had been obtained from the

Advocate General in such capacity and, therefore, it is not open to the plaintiffs to say that the Saidapet Annadhana Samajam should be impleaded

as a party for whatever purpose. He would further contend that the application is not maintainable according to the law governing bodies registered

under the Societies Registration Act and rules of the Samajam.

(6) The suit is instituted as I stated, under S. 92 C.P.C. with the content of the Advocate General. In the case of public charities, where 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 tow or more persons having an interest in the trust and having

obtained the consent in writing of the Advocate General, may institute the suit for the relifes set out in the said sections.

(7) Annadhana Samajam, is a charitable trust registered under the Societies Registration Act (Act XXI of 1960),. Sec, 6 of the said Act prescribes

the mode in which suits by or against such Societies have to be brought. Every Society may sue or be sued in the name of the President, chairman,

or principal Secretary, or trustees, as shall be determined by the rules and regulations of the Society, and, in default of such determination, in the

name of such person as shall be appointed by the Governing body for the occasion; provided that is shall be competent for any person having a

claim or demand against the Society to sue the president or chairman, or principal secretary or trustee thereof, if on application to the Governing

body some other officer or person be not nominated to be the defendant; and Sec. 7 provides that no suit or proceeding in any civil Court shall

abate or discontinue by reason of the person, by or against whom such suit or proceeding shall have been brought or continued, dying or ceasing

to fill the character in the name whereof he shall have sued or been sued, but the same suit or proceeding shall continued in the name of or against

the successor of such person.

There are other provisions in this Act which enable the Society to proceed against the members, who are in arrears, by suit as strangers and also

arrears of subscription or possession or detention of the property of the Society contrary to these rules etc, or for otherwise guilty of offences such

as stealing purloining embezzling any money or other property etc. (sic). There are also provisions defining a member, providing for mode of

dissolution and the effect of dissolution of Societies that might be registered under the Act. But these is no provision in that Act which would justify

the inference that a suit filed by or against a Society is not governed by S. 92 C.P.C.

(8) Sri Ganapathi Subramaniam for the respondent, however, drew my attention to a ruling of this court reported in Mandoori Durga Mallikharjana

Vara Prasad Rao and Another Vs. Gudipudi Gopalacharlu and Others, . Krishnan and Venkatasubba Rao, JJ. laid down in this case that

objection as to absence of sanction under S. 92 is not an objection that can be property waived. What is emphasised by the learned Judges is the

object of such sanction. That being to secure that suits are not brought against trustees unless there us a prima facie case against them of breach of

trust or unless circumstances exist which necessitate the court''s interference in the administration of the trust. They also stated that the object of the

section will be defeated if it is left open to a plaintiff to get sanction against a person who is not the trustee and then use if afterwards against the

real trustee. The personality of the trustee and the way in which he is dealing with the trust are matters of material consideration in granting sanction

for a suit. If we probe into the facts of this case, it would be seen that it has very little application to the present case where Sri Bhaktavatsalam

who is already on record as a defendant, no doubt without any description of his capacity, as an intermeddler with the affairs of the Annadhana

Samajam and against whom sanction has been granted by the Advocate General is sought to be impleaded as representing the Annadhana

Samajam which is sought to be impleaded as supplemental second defendant.

(9) Jessingbhai v. Jivatlal, AIR 1947 Bom 487 is case, where a suit was instituted under S. 92 against some defendants after obtaining sanction of

the Advocate General. Subsequently, the plaintiff amended the plaint by addition of one more defendant without such sanction. The Bombay High

Court held that the amendment necessarily enlarges the scope of the suit and the suit thus being not identical with the suit which it was at the time of

its commencement, was bad.

(10) The present however is a case which to my mind, more appropriately comes within the scope and ambit of the ruling in R.N. Selvam Mudaliar

and Others Vs. P.A. Raju Mudaliar and Another, wherein Rajamannar C. J. and Venkatarama Aiyar J. held that a sanction given by the Advocate

General under S. 92 C.P.C. is one generally for the institution of the suit for the removal of persons purporting to act as the trustees of a public

religious institution and that an amendment sought for subsequently by way of addition of a party is merely formal and does not alter the nature of

the suit. In such a case, a further sanction of the Advocate General is not necessary.

(11) I have already set out the material plaint allegations which necessitated the impleading of Bhaktavatsalam as a person who was in change of,

and meddled with, the affairs and funds of the Samajam. The main relief in the plainly being the preservation and continuance of the Samajam as a

charitable body after framing a scheme, it cannot be said that the Samajam represented by the present Secretary who also is Bhaktavatsalam is not

a necessary party to the suit for an effective adjudication of the controversy between the plaintiffs and Bhaktavatsalam as representing the

Samajam.

(12) This application is, therefore, allowed. The applicant may file a separate application for amendment of the plaint consequent upon this order.

(13) Application allowed.