ORDER : K.S. Govinda Pillai & K. Sankaran, JJ. The 1st defendant has preferred this appeal against the order of the lower court appointing a receiver to take the yield from the plaint schedule properties. The 1st defendant is in possession of the same as a trustee of the Village. The present suit is to remove the 1st defendant from management, to direct him to render accounts and to hold him responsible for various acts of malfeasance and misfeasance. After receiving the 1st defendant's contentions and settling the issues, the lower court on the application of the plaintiff appointed a receiver for the trust properties. 2. One of the contentions of the 1st defendant was that the suit should be dismissed, as no sanction of the Dewan, as contemplated in S. 72 of the Civil Procedure Code, had been filed for the institution of the suit. There is no doubt that the suit is filed for some of the reliefs mentioned in S. 72 C.P.C., and it was admitted by both sides that the suit would come under S. 72. If that be so, then no suit claiming any of the reliefs specified in S. 72 could be instituted in respect of any such trust as it therein referred to except in conformity with the provisions of that Section. That was the imperative provision of S. 73 C.P.C. The lower court has relied on Lexmana Perumal Pillai v. Ulakanatha Pillai 1947 T.L.R. 395 to hold that S. 72 is not a prohibitory but only an enabling Section and had not done away with or affected the right of suit under O. I. R.8 C.P.C. The law laid down in that ruling did not appear to be correct. This ruling followed an earlier ruling of this Court in Sivacharyar v. Vydianantha Pattar 4 T.L.J. 305. There was no provision in the old Civil Procedure Code corresponding to S. 73 of the present Code. This 4 T.L.J. decision was therefore, at a time when there was no provision in the Civil Procedure Code corresponding to S. 73 C.P.C. S. 73 of our Code corresponds to clause 2 of S. 92 of the Indian Code. This clause 2 had been introduced into the Civil Procedure Code by an amendment of 1908. This 4 T.L.J. decision was therefore, at a time when there was no provision in the Civil Procedure Code corresponding to S. 73 C.P.C. S. 73 of our Code corresponds to clause 2 of S. 92 of the Indian Code. This clause 2 had been introduced into the Civil Procedure Code by an amendment of 1908. Before such amendment was introduced, some of the Indian High Courts had, as held in 4 T.L.J. 305, laid down that if steps had been taken under O. 1 rule 8 C.P.C. then no sanction contemplated in S. 72 was necessary. But with the introduction of this clause the provision that sanction had to be taken had been made imperative so that a suit of the nature specified in S. 72 C.P.C. could not be instituted except in conformity with the requirements of the section. In our opinion, therefore, 1947 T.L.R. 395 requires reconsideration. The proper course is to refer the following question for decision by a Full Bench:- Question Referred:- Whether sanction of the Dewan or Head of the Administration is not necessary for claiming relief’s mentioned in S. 72 C.P.C. when suit is filed for the purpose, and whether S. 73 C.P.C. does not prohibit the institution of such a suit without such sanction. 3. This C.M. Appeal will again be posted before a Division Bench after the reference is answered by the Full Bench. OPINION P.I. Simon, J. The question referred to the Full Bench is stated as follows in the order of reference. "Whether sanction of the Dewan or the Head of the Administration is not necessary for claiming reliefs mentioned in S. 72 of the Civil Procedure Code when a suit is filed for the purpose and whether S. 73 of the Civil Procedure Code does not prohibit the institution of such a suit without such sanction." 2. "Whether sanction of the Dewan or the Head of the Administration is not necessary for claiming reliefs mentioned in S. 72 of the Civil Procedure Code when a suit is filed for the purpose and whether S. 73 of the Civil Procedure Code does not prohibit the institution of such a suit without such sanction." 2. S. 72 of the Civil Procedure Code provides that 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 Dewan or two or more persons having an interest in the trust and, having obtained the consent in writing of the Dewan may institute a suit for any of the relief’s mentioned in the Sub-division (a) to (h) in the said section. S.73 provides that no suit claiming any of the relief’s specified in S. 72 shall be instituted in respect of any such trust as is therein referred to except in confirmity with the provisions of that section. The latter section was newly introduced in the Civil Procedure Code of Travancore enacted as Act VIII of 1100 and S. 511 of the old Code corresponding to the present S. 72 was interpreted as being merely an enabling provision having no restrictive effect on any independent right of suit. It was held in Sivachariar v. Vydianatha Pattar (4 Travancore Law Journal 305) that S. 511 of the old Code was not a prohibitory, but only an enabling section, and had not done away with or affected rights of suit which existed prior to its enactment. This decision was followed in Lekshmana Perumal Pillai v. Ulakanatha Pillai (1947 Travancore Law Reports 395) without noticing either the existence of S. 73 of the Code or how far the provisions of the section operated to restrict the right of the plaintiffs to bring the suit without the sanction of the Dewan. The Division Bench that heard the Civil Miscellaneous appeal had reasons therefore to doubt the correctness of the latter decision and referred the matter to a Full Bench for an authoritative decision. 3. There were several prior decisions of the Travancore High Court in which the scope and applicability of S. 73 of the Civil Procedure Code was considered and discussed. 3. There were several prior decisions of the Travancore High Court in which the scope and applicability of S. 73 of the Civil Procedure Code was considered and discussed. These have not been referred to in the last decision in Lekshmanaperumal Pillai v. Ulakanatha Pillai (1947 Travancore Law Reports 395). In Krishnan Nilacantan v. Unni Sankaran Nayinaru (20 Travancore Law Journal 722) it was held that when reliefs like the renewal of trustees, appointment of new trustees and settlement of a scheme are prayed for by two or more persons acting on behalf of the public, the sanction of the Dewan is indispensable under Ss. 72 and 73 of the Civil Procedure Code. It was then ruled in Sankara Iyer v. Subramania Iyer (21 Travancore Law Journal 85) that the question whether any particular suit relating to a public trust fell within the restrictive provisions contained in S. 72 of the Civil Procedure Code must depend on the allegations contained in the plaint and on the nature of the reliefs prayed for. This position was reaffirmed in Kelappan Ariar v. Subramonia Ariar (27 Travancore Law Journal 305). It was likewise held in Kumara Pillay v. Balanada Swamikal (24 Travancore Law Journal 166) that S. 72 of the Civil Procedure Code governs only suits for the vindication of the rights of the public in public charitable trusts and had no application to suits for the vindication of the plaintiff's rights of management and for getting possession of the trust properties. Lastly the question was considered and discussed by a Full Bench in Bhanu Pandarathil v. Uthrittathi al Valia Raja (1945 Travancore Law Reports 484) and it was held therein that a suit filed by a person for the vindication of his individual right in a public trust and for the redress of a particular infringement of such a right does not come under S. 72 and that it is not precluded by S. 73 of the Civil Procedure Code. To the same effect is the decision in E.S.J. Madai v. E.A. Madai (6 Cochin Law Journal 554) wherein the applicability of the restrictive provision in S. 77 of the Cochin Civil Procedure Code (corresponding to S.72 of the Travancore Code) arose for consideration. 4. To the same effect is the decision in E.S.J. Madai v. E.A. Madai (6 Cochin Law Journal 554) wherein the applicability of the restrictive provision in S. 77 of the Cochin Civil Procedure Code (corresponding to S.72 of the Travancore Code) arose for consideration. 4. It will be of great advantage, for the purpose of answering the question referred to us, to examine the corresponding provisions of the Civil Procedure Code in India and the important decisions of the various High Courts there bearing on the said provisions. The first Code of Civil Procedure (Act VIII of 1859) did not contain any section specially laying down any procedure for the institution of suits relating to the administration of public trusts of a religious or charitable nature. The Code of 1877 enacted for the first time S. 539 which said that in the case of any alleged breach of any express or implied 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 .... for any of the reliefs (a to h) specified in the section. This provision was re-enacted in the Code of 1882. When the Code of 1908 was enacted, S. 92(1) took the place of the old S. 539 with certain minor changes which are not quite relevant for the present enquiry. Sub-s. 2 to S. 92 was newly added and it provides that 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 is therein referred to except in conformity with the provisions of that sub-section. This sub-section corresponds to S. 73 of the Travancore Code which was newly introduced in the Civil Procedure Code of 1100. S. 511 of the old code of 1065 was re-enacted as S. 72 of the new code and this Section corresponds to sub-s. 1 of S. 92 of the Indian Civil Procedure Code. 5. The question arose under S. 539 of the Code of 1882 whether the section was mandatory or was only directory and enabling in its application. S. 511 of the old code of 1065 was re-enacted as S. 72 of the new code and this Section corresponds to sub-s. 1 of S. 92 of the Indian Civil Procedure Code. 5. The question arose under S. 539 of the Code of 1882 whether the section was mandatory or was only directory and enabling in its application. There was divergence of opinion on this point between the different High Courts in India. The view taken by all the High Courts generally excepting that at Bombay was that the remedy provided by S. 539 was in addition to any other remedy that existed under the law for the redress of any breach in relation to a public trusts of a religious or charitable nature. In other words the section had not the effect of taking away the right that the public or a section of the public had under the pre-existing law to enforce their remedies by a suit under S. 30 of the Code of 1882 corresponding to O. I, R. 8 of the present Code. The High Court of Bombay however held that the provision was mandatory and not merely directory and that a strict compliance with the conditions laid down in the section was necessary in all suits where any of the relief’s specified in the section was prayed for. The specific question that often arose for decision was whether in a suit between co-trustees the sanction required by S. 539 was essential. In Trichumdass Malji v. Khimji Vullabhdas (I.L.R. 16 Bombay 626) it was held that even a suit between co-trustees could not be brought except in conformity with the terms of S. 539. The opinion was expressed in Nellayappa Pillai v. Thangamma Nachiar (I.L.R. 21 Madras 406) that the introduction of S. 539 of the Code of 1877 did not have the effect of taking away the rights then existing in the trustees. The suit in that case was filed by the trustee of a temple to recover from the legal representatives of the deceased trustee of a special fund constituted for the benefit of the temple, which has been misappropriated by him and for the appointment of another person in his place. The suit in that case was filed by the trustee of a temple to recover from the legal representatives of the deceased trustee of a special fund constituted for the benefit of the temple, which has been misappropriated by him and for the appointment of another person in his place. The plaintiff had obtained the necessary leave to sue under S. 30 of the Old Code (corresponding to O. I, R. 8) but no sanction of the Advocate-General was obtained under S. 539. It was held that the sanction of the Advocate-General was not necessary to maintain the suit and that S. 539 was not intended to apply to persons who before its enactment had the right to take proceedings for the purposes mentioned in the section. The question was elaborately considered in the oft-quoted judgment of Woodroffe, J. in Bundree Das Mukim v. Choonilal Johurr (I.L.R. 33 Calcutta 789) and it was decided therein 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 to be brought under it. 6. The same question arose for decision before this Court and it was held by a Full Bench in Umamaheswar Sivachariar v. Vydianatha Pattar (4 Travancore Law Journal 305) that the provisions of S. 511 of the code of 1065 (corresponding to S.539 of the Code of 1877 in India) "were not mandatory or prohibitory but were only cumulative and enabling". The head of the Sreevaikuntam Matom and others sued in that case, for the removal mainly of the first defendant from the headship of the Therur Matom which was alleged to be subordinate to and under the superientendence and management of the plaintiff's matom. The decision in the case was based mainly on the authority of Woodroffe, J. in Bundree Das Mukim v. Choonilal Johurr (I.L.R. 33 Calcutta (789) and the following passage was extracted from the judgment in that case "Has this section done away with or affected rights of suit which existed prior to or independently of it. I think not. If an individual could have sued before, he can, in my opinion do so now. If all persons interested join, or a representative suit is brought under S. 30, the jurisdiction of the ordinary courts in cases where it existed before, sill continues.............. I think not. If an individual could have sued before, he can, in my opinion do so now. If all persons interested join, or a representative suit is brought under S. 30, the jurisdiction of the ordinary courts in cases where it existed before, sill continues.............. As regards parties, it confers a right on certain persons who had none before namely the Collector or other Public Officer ..... As regards the general public interested, it is enabling in this sense that two persons may now sue or that some should obtain leave to sue on behalf of the rest......." 7. It is not necessary to cite more decisions to illustrate the conflict of views of the different High Courts in India on the scope and applicability of S. 539 of the Code of 1882. Sub-s.902 of S. 92 of the Code of 1908 was enacted to remove this uncertainty in the law and still however there was no uniformity of views on the effect of the sub-section. In a suit by a general trustee against a subordinate trustee for the amounts due from him to the temple it was held by a Full Bench in Saminatha Pillai v. Sundaresa Pillai (A.I.R. 1921 Madras 479) that the suit was one for the relief specified in S. 92 (1) d and was bad for want of the sanction required by the section. It was held by the Full Bench that the decision in Nellayappa Pillai v. Thangamma Nachiar (I.L.R. 21 Madras 406) would not apply on account of the insertion of sub-s. 2 to S. 92. But even after the addition of sub-s. 2 in 1908, the view expressed by Woodroffe, J. in the case referred to above, was adopted in Aiyatumessa Bibi v. Kulper Khalija (I.L.R. 41 Calcutta 749) and in Mahammed Abdul Majid Khan v. Ahmed Said Khan (I.L.R. 35 Allahabad 459). The question then considered by a Full Bench of five Judges of the Madras High Court in Appanna Poricha v. Narasinga Poricha (I.L.R. 46 Madras 113). The question referred to the Full Bench was whether a suit by a hereditary trustee against a co-trustee praying inter alia for an account of the trust properties in his hands should be instituted in conformity with the provisions of S. 92. The question referred to the Full Bench was whether a suit by a hereditary trustee against a co-trustee praying inter alia for an account of the trust properties in his hands should be instituted in conformity with the provisions of S. 92. It was held in that case that the plaintiff was entitled to have such an account taken even though the suit was not instituted under S. 92 of the Civil Procedure Code. S. 92 was held to have no application to suits for the vindication of the rights of management by hereditary trustees or to disputes between such trustees inter se as to their turns of management. The exposition of the law by Woodroffe, J. in Bundree Das Mukim v. Choomlal Johurr (I.L.R. 33 Calcutta 789) was followed with approval. 8. The Judicial Committee of the Privy Council had occasion to consider this point although not directly in Abdur Rahim v. Mahammad Barkat Ali (I.L.R. 55 Calcutta 519 P.C.) Their Lordships said:- "It is urged broadly on behalf of the respondents that all suits founded upon any breach of trust for public purposes of a charitable religious nature, irrespective of the relief sought, must be brought in accordance with the provisions of S. 92, Code of Civil Procedure. 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 relief’s specified in sub-s. 1 shall be instituted in conformity with the provisions of S.92, sub-s. 1". This observation of Their Lordships was relied upon in Janaki Bai Ammal v. Sri Thiruchitrambala Vinayakar. (I.L.R. 58 Mad. 988) laying down that the question whether a suit falls within S. 92 of the Code of Civil Procedure depends, not upon the character in which the plaintiff sues but upon the nature of the relief’s sought. This observation of Their Lordships was relied upon in Janaki Bai Ammal v. Sri Thiruchitrambala Vinayakar. (I.L.R. 58 Mad. 988) laying down that the question whether a suit falls within S. 92 of the Code of Civil Procedure depends, not upon the character in which the plaintiff sues but upon the nature of the relief’s sought. This struck a discordant note to the otherwise uniform trend of decisions which followed the view of Woodroffe, J. in the case above referred to that the terms of the section are not so imperative as to prohibit any suit against a trustee in which any of the reliefs specified in the section is sought even though those reliefs are sought not in the larger interests of the public but merely for the purpose of vindicating the private rights of one of the turstees. This decision was commented on and distinguished by Their Lordships Leach, C.J. and Varadacharier, J. in Shanmukhom Chetty v. Govinda Chetty (A.I.R. 1938 Madras 92). It was explained in it that the observations of the Privy Council in Abdur Rahim v. Mahommed Barkat Ali (I.L.R. 55 Calcutta 519) could not be read as laying down that even where a suit is not in any sense of a representative character, the mere fact that the reliefs asked for in the suit may fall within sub-s. (1) of S. 92 of the Code was intended by Their Lordships to be a conclusive test. The judgment of the Privy Council did not lend any support to the proposition laid down by Cornish, J. in Janaki Bai Ammal v. Sri. Thiruchitrambala Vinayakar (I.L.R. 58 Madras 988) that whether a suit falls within S. 92 depends not upon the character in which the plaintiff sues but upon the nature of the reliefs sought. It was held therefore that the authority of the decision in Appanna Poricha v. Narasinga Poricha (I.L.R. 45 Madras 113) was not shaken by the decision of the Judicial Committee in Abdul Rahim v. Mahammad Barkat Ali (I.L.R. 55 Calcutta 519). 9. There was thus an apparent conflict and when next the question came up for decision before the High Court of Madras, it was referred for decision again to a Full Bench of five judges in Thirumalai Tirupathi Devasthanams Committee v. Udaivar Vrishnayya Shanbaga (A.I.R. 1943 Madras 466). 9. There was thus an apparent conflict and when next the question came up for decision before the High Court of Madras, it was referred for decision again to a Full Bench of five judges in Thirumalai Tirupathi Devasthanams Committee v. Udaivar Vrishnayya Shanbaga (A.I.R. 1943 Madras 466). In a temple at Moolki, the trustee kept a box from time immemorial for collecting offerings to the Tirupathi Temple. The trustees of the Moolki had the duty to take out the offerings from time to time and keep them in safe custody until such time when they can deliver them to the trustees of the Tirupathi Temple. The suit was filed to require the defendants (trustees at Moolki) to render an account of the offerings collected after they were last remitted and to deliver them to the plaintiff (trustees at Tirupathi). It was held by the Full Bench that the right to recover the collection was entirely independent of S. 92. The view expressed in Shanmukhom Chetty v. Govinda Chetty (A.I.R. 1938 Mad. 92) was approved of and it was ruled 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 plaintiffs are suing and to the purpose for which the suit is brought. 10. On a review of the decisions above referred to it has to be stated with great respect that the view of Woodroffe, J. stated with reference to S. 539 of the old Code of 1882 in Bundree Das Mukim v. Choonilal Johurr (I.L.R. 33 Caulcutta 739) has prevailed up to this day in spite of the restrictive provision enacted in the form of sub-s. 2 to S. 92 of the present Civil Procedure Code in India. This view was adopted and followed in Travancore in Sivachariar v. Vydianatha Pattar (4 Travancore Law Journal 305) and in Cochin in E.S.J. Madai v. E.A. Madai (6 Cochin Law Journal 554) The Madras High Court likewise approved of the same view in Appanna Poricha v. Narasinga Poricha (I.L.R. 45 Mad. 113) and in subsequent decisions. It might now be asked whether the enactment of sub-s. 2 to S. 92 corresponding to S. 73 of our Code did not effect any change in the law. 113) and in subsequent decisions. It might now be asked whether the enactment of sub-s. 2 to S. 92 corresponding to S. 73 of our Code did not effect any change in the law. S. 72 of the Code of Civil Procedure (Travancore) when it stood alone was held to be only directory and not mandatory. S. 73 was enacted for the purpose of making the section mandatory in its application. But it was not intended thereby to enlarge the scope of S. 72. Although the answer to the question referred to us has to be generally in the affirmative, it cannot be left without certain qualifications. The effect of enacting S. 73 is only to render S. 72 mandatory within its scope. It is clear from the terms of S. 72 that it deals with the procedure to be adopted in a representative suit for relief in respect of public trusts of a religious or charitable nature. When two or more persons sue in a representative capacity for any of the relief’s specified in the section, the sanction of the Dewan or the Head of the administration should be obtained prior to the institution of the suit. It is not every suit claiming any of the relief’s mentioned in the section that should be brought with the sanction of the Head of the administration. The suit should also be one on behalf of the general public if it should come within the restrictive provisions in S. 73. 11. This reference was considered by the decision in Lekshmana Perumal Pillai v. Ulakanatha Pillai (1947 Travancore Law Reports 395) which merely reaffirmed the dictum in Sivachariar v. Vydianatha Pattar (4 Travancore Law Journal 305) without dealing with or even noticing the effect of S. 73 enacted subsequent to the said decision. Nor were the previous decisions which discussed the scope of the restriction contained in S. 73 considered or even referred to. In Bhanu Pandarathil v. Uthirattathi Nal Palia Raja (1943 Travancore Law Reports 484) the specific question was considered by a Full Bench and the view adopted in that case is in accord with the answer we have formulated above. To the same effect more or less is the view adopted in Nilakantan v. Sankaran Naianru (20 Travancore Law Journal 722) and in Kumara Pillay v. Balananed Swamigal (24 Travancore Law Journal 166). To the same effect more or less is the view adopted in Nilakantan v. Sankaran Naianru (20 Travancore Law Journal 722) and in Kumara Pillay v. Balananed Swamigal (24 Travancore Law Journal 166). We have therefore to point out that Lekshmanaperumal Pillai v. Ulakanatha Pillai (1947 Travancore Law Reports 395) was not correctly decided and we overrule the view of the law as expressed therein. The decision in Kolappan Ariar v. Subramonia Ariar (27 Travancore Law Journal 305) was arrived at likewise without considering the legal effect of S. 73 and relying on two decisions of the Indian High Courts passed before the corresponding sub-s. 2 of S. 92 was enacted in the Indian Civil Procedure Code. This decision is also overruled. 12. This Civil Miscellaneous Appeal will be posted before a Division Bench for disposal in the light of the answer formulated above to the question referred to us.