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Ghanshyamlalji Vs. Collector, Udaipur and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 136 of 1956
Judge
Reported inAIR1958Raj161
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92 - Order 1, Rule 10
AppellantGhanshyamlalji
RespondentCollector, Udaipur and ors.
Appellant Advocate G.S. Pathak,; B.K. Acharya and; R.K. Acharya, Advs.
Respondent Advocate L.N. Chhangani, Govt. Adv.
DispositionRevision allowed
Cases ReferredState v. M. Murugesa Mudaliar
Excerpt:
.....on the ground of fraud or want of jurisdiction or some such similar ground. judge has appointed a person as trustee in a suit brought against the then trustee, it is not open to a third party to claim that the district judge should not have appointed the person so appointed by him but should have appointed some others who had a better claim. ' 8. it is however not necessary for purposes of the present revision to decide whether or not private rights in denial of the public nature of the trust claimed on behalf of persons not parties to suit under section 92 would also be barred by the decree, as we are satisfied that the applicant is a person whose presence before the court is necessary in the present suit to enable it to frame a proper scheme for the management of the temple and its..........and not a party to the suit to cla'm that the property was his private property and there was no public trust which could be made a subject-matter of a suit under section 92, or that it is not open to a person, who is the real trustee, to claim that a decree has been obtained behind his back against persons who were not the real trustees and were not in charge of the property. but where there is a public trust and the district: judge has appointed a person as trustee in a suit brought against the then trustee, it is not open to a third party to claim that the district judge should not have appointed the person so appointed by him but should have appointed some others who had a better claim. to that extent a decree under section 92 of the code, is binding not only on those who are.....
Judgment:

Jagat Narayan, J.

1. This revision application arises out of a suit under Section 92 C. P. C. brouglit by the Collector of Udaipur, in exercise of the powers of the Advocate General conferred on him by the Government of Rajasthan against Gcswami Govindalji Maharaja and some other defendants including three deities Shri Nathji, Shri Navanit Priyaji and Shri Madan Mehan Lalji installed in the temple at Nath-dwara, Goswami Govindlalji Maharaj defendant No. 1 is the present manager of the deities. Defendants 3 to 12 are members of an ad-hoc committee of management who manage the affairs of the temple along with defendant No. 1. A scheme of management was filed along with the plaint and it was prayed that this scheme might be given effect to under the provisions of Section 92 C. P. C. In their written statements all the defendant except No. 7 accepted all the allegations made in the point and expressed their agreement to the proposed scheme. Defendant No. 7 opposed the scheme and the plaintiff filed an application praying that he may be removed from the array of defendants.

2. The present applicant Goswami Shri Ghan-shyamlalji filed an application before the District Judge in whose court the above suit was pending under Order 1 Rule 10 C. P. C. praying that he may be impleaded as a party. He is admittedly one of the descendants of Shrimad Vallabhacharya, who founded the endowment in suit. His case is that the trust in question is not one of a public nature to which Section 92 C. P. C. is applicable. He claims that it is a private trust. The applicant also alleges that the proposed scheme is defective and he wishes to put forward suggestions for its im-provement, so that the worship of the deity may be carried on in accordance with the traditions in the peculiar form in which it has all along been performed. He claims that being a direct descendant oi the founder he is entitled to participate in the Sewa and Puja and being interested in the spiritual and temporal management, he is a tit and proper person to be impleaded as a party so that he may have a say in the matter, of the framing of a scheme of management.

3. The application was opposed on behalf of the plaintiff and the learned District Judge rejected it mainly on the ground that it was open to h,m to bring a separate suit to vindicate his private rights. As for the applicant's contention that he was interested in the management of the temple being a direct descendant of the founder, the learned District Judge dismissed it by saying that his interest was 'remote, illusory and future'.

4. Against the above order the present application was filed, which has opposed on behalf of the Collector and some of the defendants in the suit. We have heard learned counsel for the parties,

5. First, it was contended on behalf of the applicant that he is a necessary party to the present suit as the decree passed in it will debar him from indicating his private rights by a separate suit. In support of the proposition that the judgment in a suit under Section 92 operates as res judicata so far as private rights of any sort are concerned reliance was placed on Ramadas v. Kanumantha Rao, ILR 36 Mad 364 (A) and the observations of Desai J. in Anjuman Islamia v. Latafat Ali, AIR 1950 All 109 (B).

6. In the Madras case the plaintiff's father was dismissed. from the office of Dbaram Karta in 1902 and died in 1905. In 1903 a suit was filed by the first defendant and another under Section 539 C. P. C. and a scheme of management was framed under which the defendants were appointed trustees of the temple. The plaintiff was a minor at that time. He brought the suit on attaining majority asking for re-instatement in office of Dharam Karta on the ground that his family held the hereditary trusteeship on the temple. It was found that the plaintiff did have a hereditary right to be appointed trustee. It was held that

'a scheme framed under Section 539 is binding on all (whether worshippers or not) including even one who might have claimed a hereditary trusteeship and have brought a suit to enforce such a right before the settlement of the scheme and a decree framing a scheme is a bar to a suit by such a person, even though the denial of such a right of suit might act very prejudicially to his interests and even though his application to be made a party to the scheme might have been rejected'.

It is no where mentioned in the judgment that the plaintiff claimed any private right in denial of the public nature of the trust. On the other hand from the observations that

'even if the suit could by stretch of language be considered to allege a breach of the trust by the court which framed the scheme, the plaintiff could not bring the suit under Section 539 for he alone is interested in his own claim and under that section the suit must be brought by two or more personshaving an interest in the trust and there is no reason to suppose that any one would join the plaintiff in a suit framed to benefit the plaintiff alone'

it is clear that the private rights claimed were no$ in denial of the public nature of the trust. This case therefore is only an authority for the proposition that a suit under Section 92 bars all claims to a private right not in denial of the public nature of the trust. It cannot be regarded as an authority for the proposition that it is a bar to putting forward private rights even in denial of the public nature of the trust. In Suraj Gir v. Bramh Nannn, AIR 1946 All 148 (C) in which the above Madras case was followed, it was observed that

'we can readily understand, that, even when a scheme has been settled by the Court under Section 92 Civil P. C., a stranger may come in for the purpose of asserting a title. which is paramount to the trust altogether and in that sense he may claim to have the whole scheme displaced upon (be ground that there never ought to have been a scheme at all because the property was never the subject of a trust for charitable or religious purposes'.

These observations are no doubt obiter, but they show that their Lordships of the Allahabad High Court were also of the opinion that the Madras case did not apply to rights put forward in denial of the public nature of the trust.

7. In AIR 1950 All 109 (BJ Desai J. observed:

'Bower defines a judgment in rem as one which declares, defines, or otherwise determines the status of a person, or of a thing, that is to say, the jural relation of the person, of thing, to the world generally'. (See Bower on Res judicata, p. 132.) According to one or more of these definitions the judg-ment in a suit under Section 92 Civil P. C. appointing a particular person as mutwali, would be a judgment in rem'.

The above observations were not merely obiter but were not subscribed tb by Malik C. J.. the other learned Judge who constituted the Division Bench which dealt with the above case. With all respect to Desai J. we are unable to accept the above observations as correct. Section 41 of the Evidence Act enumerates all the classes of judgments which are judgments in rem. They are the judgments of courts of Probate, Matrimony, Admiralty and Insolvency. It may be noticed that every decision of these courts is not a judgment in rem. Only such adjudications as are upon the status of some particular subject matter mentioned in the section are judgments in rem. All that was held by Malik C. J, in the above case was that

'a suit under Section 92 is a suit by members of the public interested in the trust, for safe-guarding the the interests of the trusts, and an appointment of a mutwalli by the District Judge made in such a suit must be held to be binding so long as the order cannot be challenged on the ground of fraud or want of jurisdiction or some such similar ground. To hold otherwise would lead to this difficulty that a person appointed a mutwalli by the District Judge in a suit under Section 92, can claim to be a mutwalli only against those who are parties to that suit and his right to act as mutwalli would be subject to a challenge by every other third party'.

He made it clear however that

'it does not mean that after a decree in a suit under Section 92, it is not open to a person interestedin the property and not a party to the suit to cla'm that the property was his private property and there was no public trust which could be made a subject-matter of a suit under Section 92, or that it is not open to a person, who is the real trustee, to claim that a decree has been obtained behind his back against persons who were not the real trustees and were not in charge of the property. But where there is a public trust and the District: Judge has appointed a person as trustee in a suit brought against the then trustee, it is not open to a third Party to claim that the District Judge should not have appointed the person so appointed by him but should have appointed some others who had a better claim. To that extent a decree under Section 92 of the Code, is binding not only on those who are parties to the suit but also on others.'

8. It is however not necessary for purposes of the present revision to decide whether or not private rights in denial of the public nature of the trust Claimed on behalf of persons not parties to suit under Section 92 would also be barred by the decree, as we are satisfied that the applicant is a person whose presence before the court is necessary in the present suit to enable it to frame a proper scheme for the management of the temple and its properties. Being a descendant of the founder, he is vitally interested in the temple's spiritual and temporal management As has been mentioned above, all the defendants except No. 7 have already given their consent to the proposed scheme. An application for removing defendant No. 7 from the array of parties has already been moved on behalf of the plaintiff. If the applicant is joined as a defendant, he will be able to apprise the court of the other aspects of the case, if any.

9. The case of Suresh Singh v. Legal Remembrancer to U. P. Government AIR 1937 Oudh 229 (D) which was cited on behalf of the applicant before the learned District Judge is on all fours with the present case. It was a suit under Section 92 in which the plaintiff proposed a scheme for the management of a trust impleading only the Deputy Commissioner, who was incharge of the trust property, as a defendant, who did not object to the proposed scheme. A close relation of the founder of the trust moved the lower court to be added as a defendant on the ground that he possessed the necessary qualification for being appointed as one of the trustees and if he was not so added the scheme would go un-challenged and would be accepted by the court, in which case he would have no right of appeal It was contended by the applicant that he was entitled to have some voice in the settlement of the scheme for the management of the trust created by his ancestors. It was held that

'such a person should be added as a defendant in the suit in order to enable the court effectually and completely to adjudicate upon, and settle all questions involved in the suit.''

The learned District Judge sought to distinguish the above case on grounds which ard clearly untenable. It is unnecessary to specify them as even the learn-ed Government Advocate has not relied on them.

10. The learned Government Advocate contended, that the addition of the applicant would alter the nature pf the suit and would enlarge the scope of the litigation and could not be: done without the previous sanction fo the Advocate General. In sup-port of this contention he referred to the single judge case of Kidar Nath v. Kishan Das, AIR 1957 Punj 106 (E), in which the learned Chief Justice of the Punjab High Court held that

'in a suit under Section 92 C. P. C. if the scope ofthe suit is substantially altered or enlarged by theaddition of a new defendant, previous sanction ofthe Advocate General is necessary.'

Cases on which he purported to base his decisionwere all cases in which the plaintiff sought to im-plead an additional defendant without obtaining thesanction of the Advocate General. See Abdul Reh-man Bapu Saheb v. Cassmn Ebrahim ILR 36 Bom168 (F). The consideration in a case where a Person applies to the Court for being impleaded underOrder 1 Rule 10 is different from that in a case wherethe plaintiff himself applies for the addition of aparty as a defendant without obtaining the sanction ofthe Advocate General. The plaintiff himself caniiptenlarge the scope of the plaint beyond what theAdvocate General has sanctioned. But there in nolimitation or exception contained in Rule 10 of Order1, where a person seeks himself to be impleaded as adefendant. If it had been intended that the courtcould not add such a person as party in a suit under Section 92 a specific exception would have been madein this behalf in the rule. Further there will be,no alte-ration in the nature of the suit by the addition of theapplicant as a defendant.

The first fundamental requirement of a suit under Section 92 C. P. C. is that the trust should be apublic one. The applicant wants a determination of thequestion as to whether the trust in suit is a public orprivate one. The plaintiff wants a particular scheme tobe approved by the court and the applicant wants topoint out the defects in the proposed scheme andsuggests modifications. The scope of the litigationwill certainly be enlarged by raising the former question.

One of the objects of Rule 10 of Order 1 is to enable the court to try and determine once for all material questions, common to the parties and to third parties and not merely questions between the parties to the suit. (See Vydianadayyan v. Sitaramg-yyan, ILR 5 Mad 52 (G) followed in Secy, of State v. M. Murugesa Mudaliar, AIR 1929 Mad 443 (H). If the applicant is not impleaded in this suit he will have to bring another suit to establish his rights with regard to the same property.

If he brings that suit now, he can only bring it against the defendants of the present suit who may notbe interested in contesting it since they have alreadyagreed to surrender their rights of management infavour of the proposed scheme. It is better that theissue be tried in the present suit in the presence ofthe Collector who is interested in denying the claimof the applicant. In every view of the case thereforehe is proper party to the present suit.

11. We accordingly come to the conclusion thatthe learned District Judge should have allowed theapplication of the applicant for being joined as party under Order 1 Rule 10. This is a fit case inwhich this Court should exercise its power of revision.We accordingly allow this application with costs anddirect that the applicant be joined as a defendant tothe present suit.


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