1. This is a suit under Section 92 of the Civil Procedure Code relating to a Hindu temple of Shree Kalleshwar at Mangur in the Chikodi taluka. The plaintiffs are residents of Mangur claiming an interest in the institution. In the plaint they have given an account of what they say is the history of the temple and the circumstances leading to the suit. There are three fields which form the endowment. The management of the property at first belonged to the village officers and in 1883, after an official inquiry, a committee of management was formed, consisting of the officiating patil and kulkarni and three other residents of the village. This committee functioned till 1893. After 1893 a member of the Kulkarni family, who was not officiating, acted as manager, and in 1899, when Yadagouda, father of defendant No. 4, ceased to be officiating revenue patil and his son defendant No, 4 was appointed as deputy, he still continued to be a manager of the institution. The panchas who were appointed along with the village officers died in course of time and after 1918, Yadagouda Patil and Sadashiv Kulkarni were the only trustees in management. After the death of Yadagouda in 1928 the plaintiffs allege that Sadashiv, who incidentally was the father of plaintiff No. 1 and defendant No. 10, was in sole charge of the management.
2. The plaint further alleges that in June, 1930, there was a public meeting in the village at which five persons, viz. defendants Nos. 1, 2 and 3, one Annagonda Devgonda Patil and one Ramchandra Pandurang Kulkarni deceased were elected vahivatdars. Two of the fields belonging to the temple, survey Nos. 90 and 91, were leased to Sattu Appa, defendant. No. 9, in 1926. His lease expired on March 31, 1931, and the plaintiffs allege that the lands were then put to auction and leased to new; tenants by the five vahivatdars appointed in 19'30. Defendant No. 4 and his brother defendant No. 5, and another brother, who was not among the defendants, claimed a right to manage the temple exclusively and took a lease of the fields in their own names. That led to disputes which according to the plaintiffs have endangered the proper administration of the trust. Defendant No. 9 having got a new lease in his favour brought a suit in 1931 which lasted for several years. In the course of it a receiver was appointed who took possession of the two fields. In March, 1935, the suit was withdrawn. Plaintiffs allege that because of the patil family, i.e. the family of defendant No. 4, having put forward a false claim to the property of the temple there has been a complete breach of the fulfilment of the purposes of the trust. The management of the God's affairs and the property of the deity has been endangered and it cannot be definitely stated who is responsible for the management. That being so, it is necessary that the direction of the Court should be obtained for the administration of the trust by appointment of new trustees and vesting of the property in them. It is stated that defendants Nos. 4, 5 and 6 who claim the right of management are Jains and are therefore wholly incompetent to be vahivatdars of a Hindu temple. The plaint recites that defendants Nos. 1 to 7 and 10 claim a right to management of the suit property and that defendants Nos. 8, 9 and 11 claim to be in possession of the suit lands as tenants. It may be mentioned that defendants Nos. 1, 3 and 10 are related to some of the plaintiffs. The reliefs claimed in the plaint are (1) a scheme of management, (2) appointment of new trustees, (3) order for vesting of the property, (4) such further reliefs as the nature of the case may require.
3. Defendant No. 4 is the principal defendant. In his written statement he claims to be hereditary vahivatdar of the temple and all its properties. He does not say in so many words in his written statement that he is the sole vahivatdar, but, as he says in the course of the statement that no persons have a right to share in the management except those appointed by his ancestors or himself, it is clear that he was putting forward an exclusive claim to be the sole vahivatdar and that position was made perfectly clear by the evidence given on his behalf by his brother, defendant No. 5. Defendant No. 4 himself did not give evidence. According to the written statement from the time of his great-great-grandfather the management of the temple has been with his family and he became hereditary vahivatdar on the death of his father in 1928. He says that he has been carrying on the management according to the religious rules and that there is no need for any directions of the Court. He denies that the villagers ever had any hand in the management. He says there was no committee in 1883 and also no appointment of vahivatdars in June, 1930. The police patil, he alleges, has nothing to do with the management. Plaintiffs and those defendants who are related to them and the police patil have made common cause against him to deprive him of his hereditary right and of possession of the temple lands.
4. Exhibit 146 is a Government Resolution giving sanction to the Collector of Belgaum to exercise in respect of the institution of the suit by Vinayak Sadashiv Kulkarni and others relating to the Devasthan property belonging to Shri Kalleshwar Deo at Mangur the powers conferred by Section 92 of the Civil Procedure Code on the Advocate General. The authority was given with special reference to this suit in consequence of the decision of the Privy Council in Prem Narain v. Ram Charan , that it is not sufficient to empower an officer generally to exercise the powers of the Advocate General but Government must give previous sanction in the case of the particular suit. Exhibit 42 is the Collector's sanction. He gave sanction to six named persons, i.e. the present plaintiffs, for the institution of a suit to obtain a decree, settling a scheme of management in respect of the institution in question. As I have mentioned, the plaint asked for further reliefs in addition to settling a scheme and objection was taken to this on the part of defendant No. 4. An application was then made to the Collector, and by exhibit 119 he gave sanction to the plaintiffs to claim further reliefs in the suit, viz. (1) removing the old trustees, (2) appointing new trustees, (3) vesting the property in the trustees, (4) directing accounts and inquiries, (5) declaring what proportion of the trust property shall be allocated to any particular object of the trust and (6) granting such further or other relief as the nature of the case may require. The plaintiffs then applied to the Court for permission to amend their plaint. The application is exhibit 109 and it begins by saying that the plaintiffs had regarded these further reliefs as being merely ancillary to the prayer for the framing of a scheme. But in view of the objection taken by the defendants they had applied to the Collector for sanction to remove a technical defect. The Court allowed the amendment holding that the additional reliefs sought were not inconsistent with the suit as originally instituted.
5. Issues were framed. The learned Judge overruled technical objections to the maintainability of the suit and held that the directions of the Court were necessary for the administration of the trust. He also held that defendant No. 4 had failed to prove his claim to be the sole hereditary vahivatdar and he drew up a scheme of management which is set out in detail in paragraph 18 of the judgment. According to this there are to be two ex officio trustees and three persons to be elected from amongst Hindu devotees of the temple. The officiating trustees are to be either the police or revenue patil and the kulkarni. The patils are to hold office for three years alternately, the first to officiate being the police patil. So that, although defendant No. 4 has not been held to be incompetent, he has been placed on the same footing as the police patil and has been omitted from the managing committee for the first period of three years.
6. Against the lower Court's decree, defendants Nos. 4 to 9 have appealed Learned counsel on their behalf has raised certain technical objections to the maintainability of the suit similiar to those, though not precisely the same as those, which were urged in the lower Court. The first point is that as this is a representative suit the Court ought to have taken action under Order I, Rule 8, and issued notices as provided in that rule. No authority has been cited in support of this argument, and it is conceded that it never has been the practice to apply Order I, Rule 8, to suits under Section 92 either on the Original Side of the High Court or in the mofussil. The only case cited in this connection is Musammat Ali Begam v. Badr-ul-Islam Ali Khan (1938) L.R. 65 IndAp 198. The only point which their Lordships had to decide in that case was whether where sanction has been given to five plaintiffs to bring a suit under Section 92 an appeal by four of these plaintiffs with the fifth plaintiff as a respondent is competent. In connection with that narrow point their Lordships made some general observations, viz. that a suit must conform to the consent, that there is no provision in the Code for recourse being had to the Advocate General or the Collector during the course of the suit and that when once a suit is validly instituted it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular. In our opinion it cannot be deduced from these observations that the procedure laid down in Order I, Rule 8, must be followed in suits under Section 92. No such point was in the minds of their Lordships.
7. Mr. Purshottam's next point was that the amendment of the plaint by asking for further reliefs was illegal. His argument goes so far as to say that in a suit under Section 92 no amendment of the plaint can ever be made. In the present case at any rate he contends that the Court had no power to allow the amendment. The sanction of the Collector made no difference because there was no sanction of Government in that behalf. The only relief which can be granted in the present suit according to this argument is the framing of a scheme, because even the original plaint went beyond the terms of the Collector's sanction. It is difficult to reconcile this reasoning with some of the observations of their Lordships in Musammat AliBegam v. Badr-ul-Islam to which I have just referred, for, if a suit under Section 92, once validly instituted is subject to all the incidents affecting suits in general, one of such incidents undoubtedly would be the amendment of the plaint when circumstances justify it. Darves Haji Mohamad v. Jainudin (1906) I.L.R. 30 Bom. 603 was cited. In that case a suit under Section 92 had been brought by a single plaintiff. It was amended by adding a second plaintiff. It was held that the suit was bad at its institution and the amendment did not better it. The reason was of course that there never was in that case a suit instituted by two persons as required by Section 92. The case is no authority for holding that an amendment of the plaint can never be allowed. Gopal Dei v. Kanno Dei I.L.R. (1903) All. 162 is a similar case. Sanction had been given not to two specified persons but to 'A and another' and this defect was remedied at a late stage of the proceedings. It was held that the authority must be given specifically to two persons and that it cannot be given after the institution of the suit.
8. Abdul Rehman v. Cassum Ebrahim I.L.R. (1911) Bom. 168 was a case on the Original Side of this High Court tried by Mr. Justice Davar. In that case two of the defendants were struck off and a new one was added and by an amendment of the plaint reliefs were sought against the added defendant. Mr. Justice Davar held that the plaintiffs were not entitled to maintain the suit against the added defendant because no sanction of the Advocate General had been obtained before he was made a defendant and before the amendment of the plaint. This case is an authority for the view that amendments may be permitted with the sanction of the Advocate General as in England. In Sayad Hussein Miyan v. Collector of Koira I.L.R. (1895) 21 Bom. 257 the Court said that a suit under Section 92 must be limited to matters included in the sanction and it is not competent to the Court to enlarge the scope of the suit and grant reliefs other than those included in the sanction. The facts of the case were peculiar. Some new defendants were joined at the request of one of the original defendants and reliefs were granted against them. The amendments were allowed by the Court without the sanction of the Collector who was the plaintiff in the suit, The Court took the view that the procedure was illegal and that the Court had no power to grant the reliefs against the added defendants. That was because the learned Judges were of opinion that the amendments had substantially changed the character of the suit. Mr. Justice Jardine said (p. 262): 'The suit actually determined is not the same as that for which sanction was accorded.'Mr. Justice Ranade observed that there must be close correspondence between the suit instituted and the suit sanctioned. The judgments of both the learned Judges suggest that if the amendments had been sanctioned by the Collector they would have felt no difficulty about the case.
9. We were also referred to two Madras decisions. In Srinivasa v. Venkata I.L.R. (1887) Mad. 148, which was a suit under the Religious Endowments Act, the claim for one of the reliefs, viz. damages, was dropped and the Court held that this altered the character of the suit and therefore the plaint had been rightly rejected. It was considered that on, the facts of the case the dropping of that particular relief gave the suit a different character. This case, however, is no authority for the view that a suit under Section 92 must always be strictly limited to the reliefs for which sanction has been expressly given. In Pitchayya v. Venkata krishnamacharlu I.L.R. (1929) Mad. 223 the Court held that where sanction has been given to file a scheme suit 'no relief, can be given; in respect of any other matter, e.g. removal of the trustee or the appointment of new trustees' No reasons were given, however. The judgment merely refers to Srinivasa v. Venkata, which certainly does not lay down any such general proposition. We were told that the decisions of the Madras High Court on this point have not been uniform, and apart from that, Pitchayya v. Venkatakrishnamacharlu is difficult to reconcile with the observations of their Lordships of the Privy Council in Anand Rao v. Ramdas Daduram (1920) L.R. 48 IndAp 12. There permission had been given to institute a suit under Section 539. The application for permission had asked simply for the appointment of new trustees. The plaint prayed for the removal of a trustee and the settlement of a scheme and the Court removed the trustee and said that it would proceed to settle a scheme. On appeal the right of the trustees to take part in the management was upheld but the judgment of the first Court was otherwise confirmed. Their Lordships of the Privy Council affirmed the judgment of the High Court and observed as follows in their judgment (p. 15):--
The first point that is pleaded is that the permission to; institute a suit under Section 539 does not square with the application, which was an application conceived merely for the appointment of new trustees, but it really had to be conceded, and their Lordships think it quite clear that, although the application as framed may have been for the appointment of new trustees, yet when they Came before the Deputy Commissioner and explained the matter it was quite within his power to grant the sanction as he has granted it
The next point that is put is that when the sanction says: 'I grant them permission to institute a suit under Section 539,' that does not mean any suit which may be raised under Section 539, but is confined merely to one of the species of suits that could be so raised--namely, the appointment of new trustees. Their Lordships do not think that any such narrow reading can be put upon the sanction as given.
10. We think it is impossible to accept the proposition that no amendment of the plaint is ever permissible in suits under Section 92. If that were so, it would lead to very inconvenient results. There is clear authority in Abdul Rehman v. Cassum Ebrahim I.L.R. (1911) 36 Bom that amendments may be made with the sanction of the Advocate General. We see no reason why the Collector should be regarded as being in a different position. It is quite true, as Mr. Purshottam pointed out, that the Collector under the Government Resolution is only given the powers of the Advocate General in respect of the institution of the suit. But that was the only power which it was necessary to give him and the Advocate General's only power expressly given by Section 92 is to institute or consent to the institution of a suit. As their Lordships of the Privy Council pointed out in Musammat Ali Begam v. Badr-ul-Islam, the Code does not provide for recourse to the Advocate General or the Collector after the suit has been instituted. Mr. Purshottam's suggestion that there should have been another Government Resolution sanctioning the amendment of the plaint is not supported by anything in the Code. It does not follow, however, from the lack of statutory provision that the Advocate General or the Collector may not take any further part in the suit.
11. We think the true position is that it is for the Court to decide in suits under Section 92 as in any other suit whether an amendment is permissible, and the consent of the Advocate General or the Collector as the case may be is really evidence which has to be taken into consideration before deciding whether the amendment should be allowed. We can see no reason why amendments which do not substantially change the character of the suit or enlarge the scope of it should not be made by the Court itself without sanction. Amendments which enlarge the scope of the suit, for instance by allowing further reliefs, without substantially changing its character, may be made with the sanction of the Advocate General or the Collector, that sanction, as I say, being evidence that the suit after amendment is to all intents and purposes the same suit and not a different one. Amendments substantially changing the character of the suit would we think not be permissible even with sanction. In such a case it could hardly be said that the suit in its amended form was ever validly instituted. No such point as this, however, arises in the present case. In the application which the plaintiffs submitted to the Collector asking for sanction they set out their case pretty much in the same form as in the plaint. The only relief which they mentioned there was the necessity for framing a scheme of management. But in the course of their application,' as in the plaint, they had referred to the conduct of defendant No. 4. They had described him and his brothers as being incompetent to become vahivatdars and they had therefore brought it to the Collector's notice that in framing a scheme of management the appointment of new trustees would have to be considered. Framing a scheme for the management of an institution of this kind may or may not involve the appointment of new trustees or the removal of existing trustees. Mr. Purshottam conceded that the appointment of new trustees at any rate may be involved in the framing of a scheme. It would obviously be purposeless to draw up a scheme of management without arranging for the appointment of trustees in the present case because there would be no one to put the scheme into operation.
12. The principal argument on behalf of the appellants in this appeal has been that defendant No. 4 is entitled to a place among the trustees to be appointed under the new scheme and that no sufficient grounds have been shown for removing him. As on this point we are in agreement with him, the technical points which have been argued have not great importance, but we may say that if we had come to the conclusion that the character or conduct of defendant No. 4 rendered it inexpedient that he should be a member of the Managing Committee, we should have felt no difficulty on legal grounds in agreeing with the trial Court.
13. [His Lordship after dealing with the merits of the case proceeded:]
14. That being so, the only matter to be considered is whether it is necessary to remove defendant No. 4 or to omit him from the committee of management. The plaint was a little vague in this connection and the only specific ground indicated there for the removal of defendant No. 4 was that he is a Jain and therefore incompetent to be a vahivatdar. But as the evidence shows that the family of defendant No. 4 has been associated with this institution ever since we have any record of its history, the argument that he is in any way disqualified by his religion has very little force. The evidence shows that there are a considerable number of Jains in the village, about as many Jains as Hindus, and in the past a number of Jains have been appointed as panchas. Other reasons for removing defendant No. 4 suggested in the judgment are that he has put forward an unwarranted claim to the right of exclusive management, that no religious ceremonies are now being performed, that he has not kept accounts and that he gave a remission of rent to defendant No. 9 without sufficient cause. We have examined the evidence on these points such as it is and we do not consider that there is anything in them. It has been held in a number of cases, e.g. Annaji v. Narayan I.L.R. (1896) 21 Bom. 556, and Damodar v. Bhat Bhogilot I.L.R. (1896) 22 Bom. 493, that claims such as defendant No. 4 has been putting forward in the present case do not necessarily call for the penalty of exclusion from the management. The learned Judge is no doubt right in saying that proof of breach of trust or mismanagement is not essential. The Court has a wide discretion under Section 92 to take such action as it thinks necessary or desirable for the good of the charity: Mahomed Ismail Ariff v. Ahmed Moolla Dawood I.L.R. (1916) Cal. 1085 and Mohammedally v. Akberlli (1933) 36 Bom. L.R. 386, P.C..
15. But when a family has been connected with an institution as long as that of this defendant, there ought to be some strong reason for depriving him of his privilege. Mr. Thakor has pointed out that for three years out of this long period Yadagouda the father of defendant No. 4 did not for some reason take part in the management. That does not affect the fact that since pre-British times this family, the family of the revenue patil, has been associated with the' institution and furnished one of its trustees. We do not say that this long connection with the institution gives defendant No. 4 a legal right to share in the management. But he has a, claim to share in the management which is certainly superior to that of anybody else except the kulkarni and previous association is undoubtedly one of the matters which the Court normally takes into consideration in deciding who the managers of an institution should be. Although the learned Judge does say in one passage in his judgment that defendant No. 4 is 'greatly instrumental or responsible for the present state of affairs,' he has nowhere stated that it was necessary to deprive him of any share in the management. The matters he has discussed in that connection merely lead him to the finding that he should not be entrusted with the sole management in the scheme to be framed by the Court. As for the present impasse we think that both parties are partly to blame and that defendant No. 4 is by no means solely responsible. It does not appear that the police patil or anyone in the family of the police patil has ever had anything particular to do with the management of the temple. We see no reason therefore why the police patil should be put on a level with the revenue patil in the scheme which has been framed.
16. We propose therefore to modify the scheme framed by the learned First Class Sub-Judge by deleting the references to the police patil. The officiating members of the board of management will therefore be the officiating revenue patil and the officiating kulkarni or the talati. There is one other modification which we think it desirable to make, and we may say we do this with the concurrence of learned counsel on both sides. The scheme at present provides that the three members of the board other than the ex officio members shall be elected from amongst the Hindu devotees of the temple at a public meeting of the Hindu devotees. In view of the fact that there are so many Jains in this village and in view of the association of Jains with this institution in the past, we see no reason why Jains should be prohibited from becoming members of the board of management if elected by the devotees. The scheme will therefore provide that the trustees are to be appointed by the Hindu devotees but that both Hindus and Jains are eligible for election. In other respects we confirm the scheme framed by the lower Court. The order removing defendant No. 4 from the trusteeship is set aside. The first election of the three non-officiating members of the board of management should take place within a month of the receipt of the record of this case by the lower Court. The board should begin to function within a week from the election of the chairman of the board of management.
17. Defendant No. 4 took up an extreme position in the trial Court which he maintained in his memorandum of appeal. Had he been more accommodating there might have been no need for litigation. At any rate it would not have been so long drawn out. Under the circumstances we think the proper order to make as to costs will be that defendants Nos. 4 to 9 do pay half the costs of the plaintiffs in the suit and do recover half the costs of the appeal from the respondents.