Akhara vs Gauri Kuar And Anr. on 9 December, 1897

Allahabad High Court
Akhara vs Gauri Kuar And Anr. on 9 December, 1897
Equivalent citations: (1898) ILR 20 All 167
Author: B A Aikman
Bench: Banerji, Aikman


Banerji and Aikman, JJ.

1. This was a suit for sale brought upon a mortgage, dated the 18th of July 1889, by the plaintiffs-appellants who described themselves in the plaint as follows:–“Pancbaiti Akhara Kalan Udasi Sri Sat Guru Nanak Nirwan Panch Parmeshwar, in Kydganj, City Allahabad, throueh Mahant Moti Ram, Mokami Hari Das, Mahant Narain Das, Mahant Soti Prakas, Mahant Gokul Das, Mahants Ganga Ram and Iswar Das, Local Agents and Managers of the said Akhara.” It was stated in the plaint that the loan had been taken from, and the mortgage granted to “The Panchaiti Akhara Kalan Udasi in muhalla Kydganj in the City of Allahabad, under the management of the plaintiffs.” The defendants did not appear at the hearing. The Court of First Instance, however, relying upon the ruling of this Court in Yusuf Beg v. The Board of Foreign Missions of the Presbyterian Church of New York I.L.R. 16 All. 420, dismissed the suit. It was of opinion that the “Akhara Panchaiti” was not a corporation, and had no legal status” to sue. This decree was affirmed by the Court of first appeal.

2. It was contended in this second appeal that the Akhara Panchaiti was a corporation by prescription and entitled to sue in its corporate name. Having regard to the importance of the question raised, and to the fact that the decision of it will affect a large number of religious associations similar to that of the plaintiffs, which, we understand, have hitherto sued and been sued in the manner in which the plaintiffs have brought this suit, we took time to consider our judgment. After giving the question our best consideration, we have come to the conclusion that the plaintiffs are not a corporation within the meaning of the Code of Civil Procedure.

3. The Akhara Panchaiti is, according to the finding of the Lower Appellate Court, an association “formed by the followers of Guru Nanak, who flourished in the 15th century. Certain of his followers are stationary. They carry on money dealings and acquire immoveable property and distribute food and clothing to other followers of Guru Nanak who wander over the country, or they otherwise dispose of their income in charity.” Such an association might be a corporation under the Civil Law, but is not a corporation under the English Law.

4. “Corporations, by the Civil Law seem to have been created by the mere act and voluntary association of their members; provided such convention was not contrary to law, for then it was illicitum collegium. It does not appear that the prince’s consent was necessary to be actually given to the foundation of them.” (Stephen’s Commentaries on the Laws of England, Vol. III, p. 8, 8th Edition.) In England, however, “the Sovereign’s consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given (ib. p. 8).” Such consent is presumed in the case of corporations by prescription, that is, corporations “which have existed as corporations from a time whereof the memory of man runneth not to the contrary, and therefore are looked upon in law to be well created. For though the members thereof can show no legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one, and that by the variety of accidents which a length of time may produce the charter is lost or destroyed (ib. p.8).” In our opinion the corporation contemplated by the Code of Civil Procedure is a corporation as known in English law, that is, a corporation created with the express consent of the Sovereign or of such antiquity that the consent of the Sovereign may be presumed. It is not alleged that the Akhara Panchaiti was founded with the sanction of the ruling authority, and the learned advocate for the appellants has frankly admitted that he is unable to trace the origin of the plaintiffs’ association to royal sanction. Further, the antiquity of the association is not in our opinion such as to make it a corporation by prescription. As the plaintiff’s society is neither a corporation, nor has it got itself registered so as to make it “a company authorized to sue and be sued in the name of an officer or of a trustee,” we are constrained to hold that the suit has been rightly dismissed.

5. The decision of Peacock, C.J., in Koylash Chandra Roy v. Ellis 8 W.R., 43, is an authority for holding that in a suit by an unregistered or unincorporated company, the names of the members of the company must be disclosed. If this is not done, and if the society is neither ” a corporation, nor a company authorized to sue or be sued in the name of an officer or of a trustee,” so as to make the provisions of Section 435 of the Code of Civil Procedure applicable, the plaint is a bad one. As remarked in Stephen’s Commentaries (Vol. III, p. 17, 8th Edition), the rights and privileges of a corporation “do not attach to any bodies of persons unincorporated, however connected they may be in point of social position, of however united by express compact; though a voluntary society of individuals should unite together by mutual agreement for common purposes, should provide a common stock by subscription, and should subject themselves to laws of their own creation for the Government of their society, yet all this will not entitle them to the privilege of suing or being sued in their social capacity.”

6. As observed in the case relied on by the lower Court–Yusuf Beg v. The Board of Foreign Missions, &c. I.L.R. 16 All. 420, bodies of this nature wishing to claim the privileges and protection which the law assigns to corporations “should take care to have themselves incorporated and registered in such a way that those who deal with them or are brought in contact with them can know whom they are suing and by whom they are sued.”

7. We would also refer to the case, The Muhammadan Association of Meerut v. Bakshi Ram I.L.R. 6 All. 284.

8. As was held in that case, so it must be held here, that the plaintiff society has per se no status in law to warrant its instituting a suit in its own name by some of its members. As the suit was brought in the name of the society itself, and does not purport to be a suit brought by some out of numerous persons having the same interest, Section 30 of the Code of Civil Procedure has no application. We may add that in this case permission to sue was not applied for under that section.

9. For the above reasons we hold that the appeal fails, and we dismiss it, but without costs, as the respondents are not represented.

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