1. This is an application by two persons interested in the temple of Rangji situate in Brindaban district Muttra, praying for modification of the scheme settled by this Court in First-Appeal No. 355 of 1922 which had arisen out of a suit under Section 92, Civil P.C.
2. The application is mainly based on a provision contained in para. 21 of the scheme which reserves powers to the Court to modify it at the instance of any two trustees or any two persons interested in the trust. The application also implies a prayer for certain reliefs, apart from the exercise of the power reserved by the provision already referred to. A preliminary objection is taken by the opposite party that the application is not maintainable. It is contended that the Court becomes functus officio after the termination of the suit under Section 92, Civil P.C., and cannot modify the scheme settled by it and made part of the decree-in the suit and that the provision in the scheme reserving power to the Court to modify it is ultra vires. The scheme as originally prepared by this Court provided in para. 4:
The trust shall be administered by a committee consisting of the gaddinashin of the Sri. Rangji's temple, Brindaban, for the time being, as President, and six other members, selected from among the followers of the Vaishnava faith and preference shall be given in making such selection as far as it may be practicable, to persons belonging to the Tingal Sampradaya.
3. As part of the schema Swami Rangji was appointed to the office of the gaddinashin subject to the conditions laid down in a supplementary deed of trust dated 3rd November 1873 which renders him liable to be removed on the happening of certain contingencies therein specified. A number of trustees were nominated in the scheme which made provisions for succession to the office of the trustee in case of vacancy. It was also laid down that three members of the committee would form a quorum but that if a meeting is adjourned for want of a quorum no such quorum would be necessary for the adjourned meeting. In the application now made it is prayed that the scheme be so amended as to throw the office of the President open to election by the members of the committee and that the provision whereunder the gaddinashin is the ex-officio President be deleted. Modification of the scheme is also sought in respect of the quorum. It is desired that the presence of three trustees should be made necessary even for an adjourned meeting. Another prayer is that the present gaddinashin be removed from the office of a trustee and that of the President and that a manager be appointed for which a provision already exists in the scheme. It is alleged in an affidavit filed in support of the application that the gaddanishin has mismanaged the affairs of the trust and has misappropriated considerable property including fourteen Government promissory-notes. It is prayed that steps be taken to trace and to recover the notes and action be taken against those found to have been guilty of misappropriation of the funds belonging to the endowment. There is a general prayer asking for orders in respect of the proper management and control of the temple and property belonging thereto. Para. 21 of the scheme on which the application is principally based runs as follows:
It shall be open to the trust committee or any two members of the trust committee or any two other persons interested in the trust to apply to the Hon'ble High Court for direction with regard to any matter not converted by this scheme or for any modification of this scheme which may from time to time be considered necessary or desirable in the interest of the trust or for the protection of the trust property.
4. It is contended that the suit under Section 92, Civil P.C., having been completely decided and a decree embodying the scheme having been formally passed, it is not open to the Court to pass any orders amending the scheme, the Court having exhausted its jurisdiction by passing a decree in the suit. It is said that if the removal of a .trustee or any direction for the proper administration of the trust is necessary, a fresh suit under Section 92, instituted with the permission of the Advocate-General, is the only remedy open to the persons who are dissatisfied with administration of the trust. It is pointed out that the scheme is part of the decree passed under Section 92, Civil P.C., and that amendment of the scheme is the amendment of the decree which is not permissible except in terms of Section 152, Civil P.C., which does not apply. Lastly it is contended that the Court cannot reserve to itself a power to amend its decree and that the provision reserving a power to this Court to modify the scheme is ultra vires and cannot be given effect to. The case of Veeraraghavachariar v. The Advocate-General of Madras 1927 51 Mad 31 is strongly relied on by the learned advocate for the opposite party. It was held by a Full Bench of the Madras High Court in that case that:
If in a decree for a scheme framed under Section 92, Civil P.C., liberty is given to persons to apply to the Court for directions merely to carry-out the scheme already settled, such reservation of liberty in the decree will be intra vires if the assistance of the Court can be given without offending against Section 92; but where liberty is given to apply to the Court for alteration or modification of the scheme, such reservation is ultra vires as offending against Section 92, Civil P.C.
5. The ratio decidendi seems to be that reliefs of the nature described in Section 92: can be sought only by instituting a suit in the manner laid down by that section and that it is not open to the Court to allow one of those reliefs (viz., setting a. scheme which is involved in the alteration of a scheme already settled) being sought by an application only. It seems that this view lays to great, and if we may say with respect, unnecessary stress-on the right given to apply for the alteration of a scheme previously settled. The real question is whether the Court can reserve to itself the power to amend the scheme suo motu or otherwise. If the Court can do so the fact that it is moved by an interested person is of no importance. Where the Court has a power, it may, to minimise the chances of frivolous motions being made, make it known that it will not exercise such power unless no less than two persons join in applying for the exercise of it. To our minds this is the only effect of the provision in the scheme which reserves to the Court a power to amend it on an application being made by two persons interested in the trust. As already stated, the real question is whether the Court had jurisdiction to retain a power to alter the scheme. We are unable to find anything in Section 92, Civil P.C., which makes the reservation of a power to modify the scheme in future ultra vires. The power of the Court to settle a scheme for the administration of a trust is sufficiently comprehensive to include a provision which makes the scheme alterable by the Court if it is found necessary in future. We are not impressed by the argument that unless the suit under Section 92 is taken to remain pending for all times, the exercise of the power to amend the scheme necessarily implies amendment of the decree. The suit must undoubtedly be deemed to have terminated with the passing of the decree which according to its definition implies a final adjudication of the rights of the parties to it.
6. The settlement of a scheme is part of the adjudication and if the scheme is made elastic the finality of the adjudication is not affected. If the scheme is amended subsequently by the Court within the limits laid down by the decree the Court should be deemed to be giving effect to its own decree rather than amending it. There is considerable authority against the view taken in the Madras case which was expressly dissented from in Chandraprasad Ramprasad v. Jinabharthi Narayan. 1931 55 Bom 414. Manadananda Jha v. Tarakanand Jha 1924 Cal 330, Sadupadhya Oja v. Ravaneswar Prosad Singh. 1918 43 I C 772 and Mohomed Waheb Hussain v. Abbas Husain 1923 Pat 420 are also authorities to the contrary. U Po Maung v. U Tun Pe 1929 6 Rang 594, is not a case in point. The power to modify the scheme does not appear to have been reserved in that case. Shera Khan v. Shure Shah 1935 A L J 311, is likewise not in point. In that case the scheme settled under Section 92, Civil P.C., appointed a, committee of three persons, who are empowered to visit the shrine and to dismiss a 'mutawalli' and appoint another in his place. This power was exercised by the committee, and the dismissed mutawalli applied to the Court complaining against the action of the committee. The District Judge dismissed his application. On an application for revision from his order it was held by a Division Bench of this Court that the order of the District Judge was correct. There was no question as to whether a power reserved in the scheme prepared under Section 92, Civil P.C., could not be exercised, the reservation being ultra vires. An earlier case decided by this Court, Darshan Das v. Collector of Meerut 1918 16 ALJ 742, does not also touch the point. All that was held in that case was that the Civil Procedure Code gives no power to the District Judge to take any action in order to protect property forming the subject matter of a public endowment unless and until a regular suit is filed in his Court under Section 92, Civil P.C. In that ease, the District Judge had appointed a trustee, and among the other directions given to him one was that he should file an account within a certain time. The order of the District Judge was not complied with, and the judge prohibited the trustee from having any further dealing with the property of the gaddi,' and a proclamation was issued in the villages belonging to the 'gaddi' that no rents should be paid to the trustee. This extraordinary order of the District Judge was reversed in revision by this Court. For these reasons we are led to the conclusion that both on principle and authority it must be held that the provision reserving a power to the Court preparing a scheme under Section 92, Civil P.C., to modify it is not ultra vires.
7. In so far as the present application seeks modification of the scheme, not in the exercise of the Courts power reserved by the scheme itself, but wholly apart from it, we are of opinion that the only section in the Civil Procedure Code which can justify amendment of the scheme is Section 151, Civil P.C. Dr. Katju, the learned Counsel for the applicant, referred us to certain dicta in English cases in which it was held that a Court settling a scheme in relation to an endowment has inherent power to modify it subsequently and in ordinary circumstances. We put it to him whether that was not equivalent to exercise by a Court in this country of its inherent power contemplated by Section 151, Civil P.C. The learned Advocate agreed that the only rule of law to be found in the Civil Procedure Code under which the Court could modify the scheme in the exercise of its inherent power was Section 151, Civil P.C. In our opinion the inherent power of the Court to modify a scheme prepared by itself should be exercised where it is necessary to prevent abuse of the process of the Court or where the ends of justice plainly demand it. In considering the merits of this application we shall bear in mind the comparatively narrow scope of Section 151, Civil P.C., where we are called upon to modify a scheme apart from the power reserved by para. 21 thereof. The result is that we repel the preliminary objection and proceed to dispose of the application on the merits.
8. Coming to the merits of the application we find that the main object of the applicants is to have the present gaddinashin removed from the offices of the President and a trustee. It is alleged in the affidavit that he has misappropriated large sum of money. A reference is particularly made to fourteen Government Promissory Notes which, it is said, have disappeared. It is quite clear that we cannot entertain an application for removal of the President or a trustee on the ground of misconduct. The scheme provides that if the office of a trustee falls vacant the other trustees shall fill up the vacancy by appointing a suitable person. There are provisions in the scheme for the removal of a trustee by the trustees themselves. It is impossible for this Court to entertain an application for the removal of the trustee conformably with the provisions of the scheme. The applicants were apparently alive to the difficulty on this score and have, therefore, applied for the modification of the scheme, so that if under the modified scheme the gaddinashin ceased to be the President ex-officio the office is to be filled up by the trustee. Similarly if the scheme is amended as desired by the applicants, the gaddinashin will cease to be a trustee under the modified scheme-It is thus clear that it is only through a. modification of the scheme that they can secure the removal of the gaddinashin, from the offices of the President and a trustee.
9. We have considered the scheme as. a whole arid find that it is an admirable scheme and is likely to work satisfactorily in normal circumstances and that no case has been made out for amending it in any respect. Assuming, as is alleged, that the present gaddinashin has not fulfilled the expectations which were formed of him by those interested in the trust, it is not the fault of the scheme. The merit of a scheme cannot be judged from its unsuccessful working in one or two instances assuming such is the case in the present instance for these reasons we decline to modify the scheme so as to provide that the gaddinashin shall not be the ex-officio President of the board of trustees and that he shall not by virtue of his office as gaddinashin be a trustee. It is open to two or more-persons interested in the trust to institute a suit under Section 92, of course with the permission of the Legal Remembrancer, for the removal of the gaddinashin from one or more of the positions he now occupies for alleged misconduct. But assuming such allegation is well founded -a point on which we express no opinion-it does not justify the assumption that the general rule contained in the scheme has been found by experience to be unsatisfactory.
10. The next question is whether the provision in the scheme relating to the quorum requires any modification. As already stated, the scheme makes a quorum of three out of seven trustees necessary for the transaction of any business. This is a desirable rule and it is not objected to. It is said that in so far as it provides no particular quorum for an adjourned meeting it should be amended so as to require the presence of at least three trustees on an adjourned meeting also. We do not think that such a provision is at all desirable. It is presumed that the trustees are persons interested in the endowment and are prepared to make some sacrifice in time. The scheme provides that in case a trustee ceased to attend meetings of the board of trustees for a period of two years he renders himself liable to be removed by the other trustees. We think that this provision is sufficiently deterrent against habitual absence of trustees from meetings. Any provision requiring the presence of at least three members out of seven at all adjourned meetings is likely to work very unsatisfactorily on certain occasions and will in any case be conducive to delays.
11. The only other matter that requires consideration is the grievance of the applicants that no manager has been appointed as required by the scheme. This is emphatically denied by the opposite party. It is not necessary for us to inquire into the question of fact whether a manager has not been appointed as is alleged by the applicants. According to the scheme the board of trustees should appoint a manager for the discharge of certain duties. If the board has failed to discharge its obligation under the scheme, the proper remedy for the applicants is to take appropriate proceedings for the enforcement of such obligation. We cannot direct any more than what has been done by the scheme prepared by this Court viz., that the board of trustees should appoint a manager.
12. Lastly so far as our orders are sought in respect of the missing Government Promissory Notes and the misappropriation of funds, we are of opinion that no action can be taken by this Court on a miscellaneous application like the one before us. We cannot obviously pass any orders in that behalf in the exercise of our inherent jurisdiction, assuming we possess power in that connexion nor can we give any directions in respect of the proper management of the affairs of the temple. The result is that this application fails and is dismissed with costs which we assess in all at Rs. 500.