Judgment :- 1. The litigation presents curious features. In Theroor Pakuthy, Agasteeswaram Taluk, Nagercoil Sub District, Trivandrum District, there is a place known as "Chembakaramanelloor" wherein are situated four Hindu temples dedicated to Chembaka Vinayakar, Veeramudaya Kandan Sastha, Azhakaperumal Sivannaperumal Kandan Sastha, and Amman Mutharamman. There was an Oor attached to the temples, the inhabitants whereof were all Vellalars. For reasons not made clear by the record, all of them shifted their residence to the neighbouring villages of Theroor and Veeramarthandan Puthoor, both of which are situate within a mile wherefrom it is said they were and are resorting to the said temples for worship. Thereafter there were no residential houses, the sites of which having been converted into paddy flats. Arrangement had at that time to be and was made for the conduct of the poojas in the temples and for the management of the properties appurtenant thereto. This was done by means of an udampadi dated 30.2.1050 executed by Nagaru Manikiavasakam the predecessor of the plaintiffs and two others in favour of Muthuswami Meenakshinadhan. Meenakshinadhan transferred his rights under the udampadi to his son Ramakrishna Pillai who in his turn transferred them to the 1st defendant. 2. The plaint averred in paragraph 3 that of the 12 items comprised in the schedule, the last was the "Nandavanam" and Neerazhi [God's garden and tank], that the revenue registry of the first two items was in the name of Vinayakar, the next two in the name of Veeramudaya Kandan Sasta, the 5th in the name of Chinnaperumal Kandan Sasta, the 7th in the name of Sivannaperumal Kandan Sasta, items 8 to 11 in the name of Amman Mutharamman and that on the 5th item were installed the idols of the two Sasthas. That paragraph stated that the 6th item is the Oor pertaining to the temples. In the next paragraph the plaintiffs made an averment which might mean either that the said temples and the properties belonged to the Vellalars who are the only inhabitants of the Oor, or that the said Vellalars are alone interested in them. The latter should be taken as the more and perhaps the only appropriate interpretation as otherwise the 4th paragraph will conflict with the third. The latter should be taken as the more and perhaps the only appropriate interpretation as otherwise the 4th paragraph will conflict with the third. Alleging breach of trust by appropriation of the income of the said properties which constitute a Trust, for the personal use of the 1st defendant, alleging also neglect in the performance of services and waste to the properties, removal of the first defendant from management, rendition of accounts by him, and the framing of a scheme for the management of the Trust, were among the main reliefs sought by the plaintiffs. The first defendant admitting the Trust, contended, inter alia, that except the obligation to carry on the poojas in the temples which he was doing properly, he had no obligation to carry on the poojas in the temples which he was doing properly, he had no obligation to maintain or render account of his management. He pleaded that the transfer to and by Ramakrishna was for consideration. The plaintiff's claim as successors of the inhabitants of the Oor was denied. The udampadi of 1050 was admitted but was characterised as a purchase of peace by Meenakshinadhan who was already in management and not a conferment of power or entrustment of duty. Along with the suit the plaintiffs filed an application under O. I, R.8 of the Code of Civil Procedure to permit them to prosecute the action as representing all the persons interested in the Trust. The application was granted. 3. The court below decreed the suit directing the preparation of a scheme by the court. It was found that the 1st defendant has neglected to perform the poojas in the temples. The 1st defendant's claim to special rights under Ext. I was negatived. The 1st defendant was made liable for the mesne profits of the properties. Against this decree, the 1st defendant appeals to this court. 4. One of the grounds urged before us in appeal was that the suit is not maintainable without the sanction of the Advocate General under S. 92 of the Code of Civil Procedure as the auction concerns a public trust and the redress sought are those grantable under that section. That a trust with which the properties are impressed exists was the common case of both the parties; its character however was not mentioned by either in the pleadings or in the evidence. That a trust with which the properties are impressed exists was the common case of both the parties; its character however was not mentioned by either in the pleadings or in the evidence. No issue was, therefore, settled on this point. The court below in paragraphs 2 and 9 of its judgment, nevertheless, stated that "it is a private trust" and "not a public trust". We sought in vain to find out the justification for making these statements in the judgment. Though the plea of non-maintainability of the suit based on want of sanction taken in the memorandum of appeal to this court had not been raised in the written statement, in view of the "That public are in no way represented in this suit. There is no one on the record to assert their rights and those rights cannot be in any way affected by the decision in this case". and Sadasiva Iyer, J. observed that: "To hold that the temple alleged to belong to the fluctuating residents of 4 large streets is a private temple is rather extraordinary even though it is not expressly admitted by either side that other Hindu worshippers have been worshipping in the temple". 7. The features of a public trust attracting the application of S. 92 of the Civil P.C. were considered by this Court in A.I.R. 1952 T-C. 323. 8. Bijan Kumar Mukherjea in "The Hindu Law of Religious and Charitable Trust" (Tagore Law Lectures 1936, Delivered in August 1951) says as follows: at page 418: "S. 92 applies only when the religious or charitable trust is for a public purpose. As Mitter, J. observed in Nobi Shirazi v. The Province of Bengal (I.L.R. [1942] 1 Cal. 211 at 226) the essential distinction between a public and a private trust is, that is, that in the former the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained. But in the latter the beneficial interest must be vested in an uncertain and fluctuating body of persons - either the public at large or some considerable portion of it answering a particular description. But in the latter the beneficial interest must be vested in an uncertain and fluctuating body of persons - either the public at large or some considerable portion of it answering a particular description. The fact that the uncertain and fluctuating body of person is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust". 9. It is clear that the trust involved in the suit is a public trust. The reliefs asked for are such as are contemplated by S. 92 of the Civil P.C. The sanction of the Advocate General under that section is necessary to sustain the suit and having been brought without such sanction it is liable to be dismissed. 10. At the trial of the new issue in the court below the plaintiffs attempted, though unsuccessfully and to on purpose, to prove, that they are the sole survivors of the inhabitants of the Oor. This is a departure from their case theretofore which cannot be allowed by which serves to show that the 1st defendant's version that the plaintiffs were actuated in this action by a desire for the goods of the trust and not its good may not be altogether unfounded. 11. It is very satisfactory to note that the 1st defendant now desires no personal benefit from out of the trust properties except by way of reasonable remuneration for the poojas which he performs. He claims to have spent his own funds for improving the temples which were in disrepair, though even now some of the buildings and even the idols stand in need of repair, if not reconstruction and replacement, as the commissioner reports and the evidence in the case shows. There is urgent necessity for the settlement of a scheme for the proper management and the upkeep of the trust. 12. We cannot, however, pass a decree in this action as it is found to be unsustantiable. The institution of a proper suit under S. 92 of the Civil P.C. is urgently called for. There is urgent necessity for the settlement of a scheme for the proper management and the upkeep of the trust. 12. We cannot, however, pass a decree in this action as it is found to be unsustantiable. The institution of a proper suit under S. 92 of the Civil P.C. is urgently called for. If the plaintiffs or others interested do not move in that direction we are confident that the Advocate General, who appears for the appellant, will not feel embarassed by his being briefed in this case to move in the matter himself and initiates appropriate proceedings. In Gopal Krishnaji Kotkar v. Mohamed Jaffer Mohammed Hussain [1953 S.C.J. 621], the Supreme Court directed that a certified copy of their judgment will be sent to the Advocate General of Bombay, obviously for purposes of action under S. 92 of the Civil P.C. which was called for in the circumstances of the case. 13. For the foregoing reasons the appeal is allowed and the suit dismissed. Both the parties are directed to pay themselves their respective costs here and hitherto because the ground on which the appellant succeeds was taken by him for the first time before us. Dismissed.