1. The plaintiffs seek directions of this Court, which they say are necessary for the administration of a public charitable trust, known as 'Narayanwadi Temple Trust'. They have obtained sanction of the Advocate General under Section 92, Civil P. C. 10 institute this suit.
2. There is in Bombay what is known as 'Narayanwadi Temple' wherein are installed, deities of Shri Ramanuj and Shri BalaJi, worshipped by Hindu Vaishnavs who in this particular case are mostly Cutchi Lohanas of the Ramanuj sect. It appears that the temple and valuable properties belonging to it were being managed by one Ramanuj Acharya, who was officiating as an 'acharya' or guru' in 1929,' when the Advocate General of Bombay filed a suit being suit No. 654 of 1929 against him for a declaration that the properties belonging and appertaining to the said temple at Narayanwadi were held by him as a trustee of a public charitable and religious trust. An account of the management of the trust properties by the said Ramanuj Acharya was also claimed in that suit. It was also prayed that a scheme should be framed for the proper administration of the said trust. Other incidental reliefs were also asked for in that suit.
3. That suit was contested by Ramanuj Acharya, who claimed that he held the properties in question under various documents and that they were vested in him as the owner of the same. He denied that he was liable to render any account of his management. He also denied that the properties belonged to a public charitable and religious trust. After a preliminary decree 'inter alia' for accounts and framing a scheme was passed the parties to that suit arrived at a compromise and a consent decree was obtained from this Court on 17-11-1935. By that consent decree it was declared that a scheme should be framed for the proper administration of the trust which was declared to be a public charitable trust. There were certain other terms in that consent decree with which I am not concerned. A scheme was framed and approved by the Advocate General and sanctioned by this Court.
4. Clauses 2, 12, 13, 22, 24 and 29 of that scheme are as follows:
'2. The trust properties shall be vested in the Trustees for the time being under this scheme and they shall be administered and managed by them subject to and in conformity- with the provisions of this scheme.
12. The Trustees by a majority of at least three-fourths of their number shall from time to time appoint a 'mahant or acharya' of the said temple; such appointment shall be made as far as practicable from the descendants of Swami Ramanujacharya Perumalacharya the founderof the 'gadi' at Naryanwadi. The Trustees by a like majority of at least three-fourths of their numbers shall have also power to remove for good cause the 'mahant or acharya' for the time being.
13. The 'mahant' or 'acharya' for the time being shall perform or cause to be performed all requisite ceremonies in the said temple and shall carry on the management of the same subject to the supervision of the Trustees,
22. Subject to the control of the trustees the 'mahant' or 'acharya' shall perform or cause to be performed the daily and other worships including 'Rajbhog' and perform 'Utsava' such as 'Hmdola', 'Annkota', 'Dhanurmash', Ramanuj Swami's 'Utsava' and shall supply daily flowers and other necessary articles for the worship of the Deities of Shri Balaji and Ramanuj in the temples of the said premises. The 'mahant' or 'acharya' shall also subject to such control as aforesaid supply the necessary and usual articles and things for the purpose of carrying out the usual 'Utsavas' (festivals).
24. The Trustees shall pay to the 'rnahant' Or 'acharya' a monthly personal allowance of Rs. 120 and at their discretion defray the reasonable expenses of his household including food, clothes, servants, horses, carriages etc. The Trustees shall allow the 'mahant' or 'acharya' to reside in the Narayanwadi property and, occupy free of rent such portion thereof as shall be necessarily required for that purpose.
29. Within the limits proscribed by the scheme the Trustees shall have full power from time to time to make rules and regulations for the management of the said Charities and Trust properties and for the conduct of their business and to vary the same from time to time.'
The consent decree also provided for liberty to the parties to apply to the Court.
5. The effect of this decree was that certain properties were declared as belonging to the charitable trust. Those were to be under the management and supervision of the trustees to be appointed in accordance with the provisions of the scheme. Ramanuj Acharya, the defendant, was to attend to the religious ceremonies of the idols, but this He was to do under the supervision and control of the trustees. The effect of the scheme was to vest the entire management of the trust properties in the trustees.
6. Thereafter the management of this public charitable trust was carried on by the trustees duly appointed from time to time. Ramanuj Acharya continued to work as an Acharya of the temple subject to the right of the trustees to remove him for good cause. He carried on thework of performing the religious ceremonies appertaining to the deities under the supervision and control of the trustees till his death in February 1946.
7. After the death of Ramanuj Acharya disputes arose, as plaintiff 1 in this suit, who is the eon of Ramanuj Acharya, claimed as of right, to be the Acharya. The trustees on the other hand refused to recognise him or to appoint him as the Acharya. It appears that they passed certain resolutions one of which is set out in a letter which forms part of the correspondence tendered in evidence before me. . By that resolution the trustees resolved that plaintiff 1 was not at the time- fit to be appointed as a 'mahant' or 'Acharya' and decided that the question of appointment of the Acharya should be postponed for a year in order to enable him to prosecute his studies and obtain the necessary qualification for dischargingthe duties of an 'Acharya' or 'Guru' of the sect. Sometime in 1947 the trustees filed an ejectment suit against plaintiff 1. I am informed that the ejectment suit, after it had gone on for some time, was stayed pending the disposal of this suit.
In the present suit, which is filed by the plaintiffs, who are the heirs of Ramanuj Acharya, the only substantial relief claimed is that the scheme contained in the final decree passed by this Court in suit No. 664 of 1929 should be modified and altered as indicated in paragraphs 9 and 10 of the plaint. Defendants 1 to 7 who are the present trustees have raised various defences, the principle defences being that the suit is barred by 'res judicata'; and that it is not necessary to modify or alter the scheme in any way. Defendant 3, who is the Advocate General, has also put in a written statement. He does not admit that it is necessary to alter or modify the scheme in any manner and submits to the orders of the Court.
8. It is strongly contended on behalf of defendants 1 to 7 that in this suit, which is filed by the plaintiffs as relators, although they ostensibly purport to seek certain directions, an examination of the averments made and directions sought indicates that the plaintiffs under the guise or these directions attempt to go behind the decree in the earlier suit and the scheme framed therein and want to assert personal rights, which they claim as heirs and descendants of the deceased Bamanuj Acharya. Now, there can be no doubt that any suit by the plaintiffs to assert any such, personal rights will be barred by 'resjudicata'.
9. At the commencement of the hearing of the suit before me Mr. Acharya. learned counsel for the plaintiffs, stated that he did not want to contend that the plaintiffs were entitled to challenge the decree in suit No. 664 of 1929 or the validity of the scheme framed therein by this Court, and that he only wanted to contend that it was absolutely necessary that the scheme framed in that suit should be modified ja view of changed circumstances.
10. The result of this is that the only questions which now remain for my determination are (i) whether the suit is barred by 'res judicata' and (ii) if the suit is not so barred, whether any modi-fication or alteration is necessary in the schemea relating to this trust.
11. Mr. Purshottam, learned counsel for the trustees, strongly urged before me that the prior suit of 1929 being filed by the Advocate General as representing the general public in order to secure proper administration of the charity the decree in that suit operates as 'res judicata' under Explanation 6 to Section 11, Civil P. C. The argument amounts to this: Where in a charity suit' under Section 92, Civil P. C. a scheme is framed by the Court and there is reserved to the parties liberty to apply to the Court, if any party interest-, ed in the charity thereafter wants the scheme tol be altered or modified, the only way he can do sol would be by an application to the Court which passed the decree incorporating the scheme and, not by way of a substantive suit; the contention! being that in such a case any separate suit would' be barred by the doctrine of 'res judicata.'
12. In support of this contention reliance was placed on a decision of this Court in - 'Kadri v. Khubmiya', AIR 1931 Bom. 388 (A) and particularly on certain observations at p. 389 of that report which are as follows:
'The scheme settled by ...... Court in a representative suit is binding on all persons in-terested in the religious endowment within the meaning of explanation 6 of S. 11, Civil P. C.'
With these observations I respectfully agree, but I fail to see how they reinforce the arguments advanced before me. The 'ratio decidendi' in that case was that a rule in a scheme of management giving liberty to apply for modification of the scheme is not 'ultra vires'. It was also held in that case that an application under the rule for the modification of the scheme can be made without the consent of the Advocate General. Now, nobody has disputed before me that where a scheme is framed by a decree reserving liberty to the parties to apply, an application can lie for alteration or modification of the scheme. It does not, however, follow that because an application for that purpose lies, a substantive suit for the same is necessarily barred. My attention was also drawn to certain observations of SiiJ Lallubhai Shah in - 'Sakharam Daji v. Ganu Raghu', AIR 1921 Bom 297 (B). I do not deem it necessary to state the same or discuss the facts of that case as the observations in that case do not advance the arguments of learned counsel for the trustees any further.
Another decision relied on by learned counsel for the trustees was - 'Damodarbhat v. Bhogilal', 24 Bom. 45 (C). In that case a decree was passed in a suit settling the scheme of management of a certain temple under the old Section 539, Civil P. C. The scheme provided that the defendants and their heirs were, during tneir good conduct, to be retained as trustees and managers of the temple, and as such to maintain a proper system of worship,, and to keep regular accounts, etc. Subsequently the plaintiffs applied for execution of the decree specifically setting forth various provisions of the scheme which had been infringed by the defendants and prayed that the defendants should be removed from the office and that the decree be enforced by their imprisonment and attachment of their property. The trial Court dismissed the application on the ground that the defendants could not be removed from the management of the temple in execution proceedings and that the only remedy of the plaintiffs lay in a regular suit. It was in a judgment in an appeal preferred against the dismissal of this application that certain observations were made by this Court on which observations reliance is placed by learned counsel for the trustees. Those observations are as follows at p. 48:
'The Dist. Judge is possibly right in holding that as the scheme is at present framed, there is no provision for removing the defendants for proved misconduct. They are by the scheme appointed trustees and managers 'during their good conduct'; they are directed to perform certain acts, but no provision is made for their removal in case of their proved disobedience to the orders of the Court as contained in the decree. We doubt whether the proper course, in order to remove the trustees, if necessary, is for the plaintiffs to bring a fresh suit under Section 539: the more convenient and obvious procedure is for the scheme to be amended so as to include in it a provision for the removal of the trustees, if necessary.'
Now, I may point out that the question before the Appeal Court was not whether a suit under such circumstances was competent or would be barred by 'res judicata'. The question was whether in a case of the nature where proceedings could not lie taken in execution of the decree what would be the more convenient and more desirable procedure to be followed by the plaintiffs. It wasin that context that it was observed that the more convenient and obvious procedure would be for the scheme to be amended by an application and not by a suit. I do not think those observations help me in deciding the question of 'res Judicata' which is raised before me. In my opinion all that follows from the decisions cited before me is that in a case like the present one an application can lie and a substantive suit is not necessary. This, however, falls very much short of the proposition advanced on behalf of the trustees.
13. The case of 'res judicata' also fails if one applies the tests ordinarily applicable to such cases. When it is said that a decree in a suit under S. 92, Civil P. C. operates as 'res judicata' under Explanation (6) of S. 11, Civil P. C. all that is meant is that all persons claiming any interest in the charity are bound by the decree and the scheme framed there under. It is clearly a different thing to say that this affects a right to file a suit for the modification or alteration of that scheme. Such a question can obviously arise at some later stage in the working of the charity, it would not be the same 'res'; nor can it necessarily be said that the issue that arises in the subsequent suit has been or must be deemed to have been adjudicated upon or decided in the previous suit.
14. It is well established that all orders of the Court carry with them 'in gremio' liberty to apply, in case of judgments in certain matters it- is usual where the necessity for such subsequent application is foreseen to insert in the judgments words especially reserving liberty to any party to apply to the Court. Now, In such cases it may become necessary to approach the Court either to get some directions for properly working out the judgment or it may become necessary to seek adjudication on questions which may subsequently arise. In case of a scheme framed by the Court in a charity suit question may arise of working out the rights declared by the judgment. Or the question may be of some ordinary modification in the scheme rendered necessary to enable the scheme to operate more beneficially. The effect of the liberty to apply in such a case would be to enable the Court to deal with the matter in a summary manner. On the other hand vital and important questions may arise requiring substantial alterations in the scheme. This may also necessitate going into lengthy evidence. It cannot be laid down as a general rule that merely because there is available the procedure by way of any application a substantive suit is necessarily barred. I fail to see how it can be said that asking for alteration of every nature in a scheme at some future date is to reagitate a matter already disposed of in a previous suit. To hold in such a case that the suit would be barred by 'res judicata' would be departing from the reason of the rule. I am unable to subscribe to any such doctrinaire technicality.
15. The doctrine of 'res judicata' is not merely: a technical doctrine. It is directly founded on the general rule that, 'a man shall not 'be twice vexed for the same cause.' It is fundamental doctrine based on the principle of conclusiveness of Judgments and finality of litigation. The plea of 'res judicata' must show either an actual merger of rights or causes of action or that the same point has been actually decided between the parties; or it must show that the plaintiff might and ought to have raised the point in the previous suit and but for his own default might have there obtained what he now seeks in the subsequent suit. There is uniform concurrence of authorities of this High Court on the applicabilityof the general principle contained in the following observations of Lord Blackburn in - 'Newing-ton v. Levy', (1870) 6 C. P. 180(D):
'....the doctrine of res judicata applies to ail matters which existed at the time of the giving of the judgment, and which the party had an opportunity of bringing before the Court. But, if there be matter subsequent which could not have been brought before the Court at the time, the party is not estopped from raising it.'
Beyond doubt all these general principles go against the contention of learned counsel for the trustees. The doctrine of 'res judicata' is applied upon two grounds;; the one of public policy, that it is the interest of the State that there should be an end of litigation; and the other of hardship on the individual that he should be vexed twice for the same cause. So even if the matter is considered by applying the reason of the rule, the proposition advanced on behalf of the trustees is unsustainable. There is neither principle nor authority in support of the proposition. The plea of 'res judicata,' must, therefore, fail.
16. That brings me to a consideration of the proposed alterations and modifications in the scheme. It is the case of defendants 1 to 7 that the plain tills are only seeking modifications and alterations in the scheme with a view to benefiting themselves by an indirect attempt to go behind the decree in the previous suit. There is considerable force in this argument. Now, it is a well established principle that a scheme once settled by the Court cannot be altered even by the Court except only on substantial grounds. It is true that changes in times and circumstances may 'ex debito justitiae' require that alterations should be made in the scheme to carry out the objects of the endowment and to see that the scheme operates beneficially. At the same time the Court has always to exercise caution in this matter and to see that what has been done by the Court is not disturbed except when there are substantial grounds for doing so and where satisfactory evidence to sustain those grounds is brought before the Court. The paramount consideration must, of course, be the interest of the charity.
It is in the light of these considerations that I have to examine the alterations and modifications in the scheme asked for by the plaintiffs. In doing so I have also to bear in the mind the powers conferred by the scheme upon the trustees. Bead as a whole the modifications and alterations in the scheme sought in this suit mainly appear to be intended for the benefit of the members of the family of the plaintiffs, and there is considerable force in the suggestion made on behalf of the trustees that here there is an attempt, under the guise of seeking directions under S. 92. Civil P. C. to get disputes as to personal rights adjudicated upon by the Court.
(His Lordship, after dealing with the alterations in the scheme asked for by the plaintiffs, concluded :)
17. I do not see any substantial ground for altering or modifying the decree in any manner; nor do I think that any alteration or modification asked lor is in the interest of the charity.
18. My finding on the issue raised on behalf of defendant 8, the Advocate General, is also in the negative.
19. In the result the suit is dismissed with costs; costs to be paid by plaintiffs 1 to 3.
20. As regards costs of defendants 1 to 7, if they are unable to recover the same or any part thereoffrom plaintiffs 1 to 3, they will be entitled to recover the same from the charity.
21. As regards the costs of defendant 8, if heis unable to recover the same or any part thereoffrom plaintiffs 1 to 3, the same should come out.of the charity. Costs of defendant 8 are allowedas between attorney and client.
22. Suit dismissed.