Judgement

Appeal (No. 22 of 1930) by special leave from a decree of the High Court (April 12, 1927) reversing a decree of the District Judge of Aligarh (March 15, 1924).

The respondents instituted a suit praying for a declaration that property described in the plaint as a kunj dharamshala, together with four shops appurtenant thereto, constituted a public trust for religious and charitable purposes, that the defendants should be dismissed from being managers and trustees, for a scheme of management to be drawn up and for accounts. The respondents were two persons who claimed to be interested in the property and three members of the public. The institution of the suit was sanctioned by the Legal Remembrancer, who in 1912 had been appointed by the Local Government

under s.93 of the Code of Civil Procedure, 1908, to exercise the powers conferred by ss. 91 and 92 upon the Advocate-General.

The terms of s. 93 are set out in the present judgment; under s. 92 a suit of the above nature may be instituted with the sanction of the Advocate-General.

The trial judge held upon the evidence that no public trust existed and dismissed the suit.

Upon appeal the High Court (Mukerji and Ashworth JJ.) made a decree declaring that the property in suit, excepting a courtyard, was an endowed property, ordering the removal of defendants 3 and 4 from possession of the property, and remitting the case for the framing of a scheme of administration.

The High Court granted a certificate that the case was a fit one for appeal to the Privy Council under

s. 110 of the Code of Civil Procedure, but the certificate was cancelled for failure to make the prescribed deposit. The appellant thereupon applied to the Judicial Committee and obtained special leave to appeal.

1931. Oct. 30. E. B. Raikes K.C. and Wallach for the appellant. Under s. 93 of the Code of Civil Procedure the suit could not be maintained without the sanction of the Local Government. The Legal Remembrancer had been appointed by the Local Government to exercise the powers of the Advocate-General under ss. 91 and 92, but it is provided by s. 93 that the previous sanction of the Local Government is to be a condition to the exercise of the powers. In Gulzari Lal v. Collector of Etah (( 1931) L. R.58I. A. 460.) the judgment of the Board laid down that by s. 93 there must be a previous sanction by the Local Government to every suit of the present nature. The question arising in that case differed from that here, but the construction of the section was material to the argument then under consideration. Although the present objection was not raised in India the appellant is not precluded from raising it before the Board, as it goes to the jurisdiction in the suit.

[The respondents were called upon as to the above point before the arguments upon the facts were proceeded with.]

Hyam, with him Dunne K.C., for the respondents. By appointing in 1912 the Legal Remembrancer to exercise the powers of the Advocate-General under s. 91 and 92 the Local Government sanctioned the exercise of those powers within its local jurisdiction. It is difficult to see how the Local Government could sanction the exercise of the powers more clearly than by appointing an officer for the express purpose of exercising them. One of the powers conferred by s. 92 upon the Advocate-General, and consequently upon the Legal Remembrancer, was to sanction a suit of this nature. His sanction to it was the sanction of the Local Government. The observations in Gulzari Lal v. Collector of Etah (L. R. 58 I. A. 460.) were obiter, and, it is respectfully submitted, proceeded upon a wrong construction of s. 93. The practice in India has been to treat the sanction of the officer appointed as sufficient. The question is of sufficient importance for the consideration of a full Board.

[LORD THANKERTON. That might be a desirable course if the present Board differed from the observations, but not otherwise.]

Nov. 30. The judgment of their Lordships was d