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Sundara Ayyar and ors. Vs. Morari Varada Ayyar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Trusts and Societies
CourtChennai
Decided On
Reported inAIR1935Mad855; 158Ind.Cas.369; (1935)69MLJ300
AppellantSundara Ayyar and ors.
RespondentMorari Varada Ayyar and ors.
Excerpt:
- .....consent of all the members, it is just and necessary that trustees should be appointed among the family members, that a scheme should be framed and other arrangements should be made'. it is difficult to see from this paragraph that there is any question of the vindication of individual rights. similarly, in the prayer portion also, the prayers are : (1) to pass a decree appointing trustees from the family members and (2) framing a scheme for the purpose of the charities. i see no reason to differ from the learned district judge on this point.4. mr. venkatachariar further raised a contention that as the contesting defendants denied that some of the plaint properties were trust properties, his clients may have a declaration to that effect but i do not see how a court which holds that it.....
Judgment:

Varadachariar, J.

1. The only point for decision in this case is whether the suit as framed is maintainable, without compliance with the provisions of S.92 of the Civil Procedure Code. The learned District Judge has held that the suit is one of the class contemplated by Section 92, Civil Procedure Code, and as its provisions have not been complied with, he has dismissed the suit. Hence the appeal by the plaintiffs.

2. It is not necessary to refer to the authorities at any length. Assuming for the present that Section 92 has no application to suits whose object is the assertion or vindication of personal or individual rights, of persons claiming to be trustees, the mere fact that the plaintiffs may in a sense be trustees will not necessarily preclude the application of Section 92, if the reliefs in the suit relate not to the vindication of their personal rights but to the advancement of the interests of the institution itself by securing more efficient management. It must be remembered that the language of Sub-section 2 of Section 92 is very wide and it is only by an attempt to reconcile Section 92 and the corresponding Section 539 with the pre-existing law relating to private rights that it has sometimes been held that a suit though relating to a public trust will not fall within Section 92 if it merely relates to the vindication of private rights. It will be an unwarranted extension of this exception to hold that a suit whose avowed object is the furtherance of the interests of the institution itself, by the framing of a proper scheme amongst the alleged trustees who are not able to agree among themselves upon proper management, will also not fall under Section 92.

3. The plaint proceeds on the footing that all the members of the family who had entered into the partition of 1874 were in the eye of the law trustees and likewise their descendants, though quite a large number of them are minors. After setting out certain inconveniences and difficulties in the management, the plaint states as follows in paragraph 11 : 'As the family has now increased and as the members of the family have risen to large numbers and as it is likely that the family should still increase, as it would be very difficult to carry on the charities continuously as done in the long past with the consent of all the members, it is just and necessary that trustees should be appointed among the family members, that a scheme should be framed and other arrangements should be made'. It is difficult to see from this paragraph that there is any question of the vindication of individual rights. Similarly, in the prayer portion also, the prayers are : (1) to pass a decree appointing trustees from the family members and (2) framing a scheme for the purpose of the charities. I see no reason to differ from the learned District Judge on this point.

4. Mr. Venkatachariar further raised a contention that as the contesting defendants denied that some of the plaint properties were trust properties, his clients may have a declaration to that effect but I do not see how a Court which holds that it has no jurisdiction over the suit as constituted can make a declaration in the course of that suit. If the plaint had specifically asked for a declaration in respect of these properties it might be possible to hold that part of the case was not covered by Section 92 and a declaration might be given. We must take it that the issue as to the trust character of these properties was raised only as incidental to the relief by way of framing a scheme, because the Court must know what are the properties in respect of which a scheme is to be framed. But if it is to he held that the suit for a scheme is not maintainable in the absence of the Advocate-General's sanction, I do not see how a declaration can be independently granted.

5. A further contention was advanced on behalf of the appellant that as Section 69 of the Religious Endowments Act of 1925 (corresponding to the present Section 73) repealed Section 92, Civil Procedure Code, the present suit will not be barred by Section 92 so-far at any rate as it seeks relief in respect of certain Religious Trusts, viz., Archana in Srirangam and the worship in Nara-simhaswami Temple. But Section 73 now will not help the appellants, because Clause 2 of that section not merely repeals Section 92, Civil Procedure Code, but contains a general prohibition that no suit in respect of the management or administration of any Religious Endowment shall be maintained except in accordance with the provisions of the Act. That prohibition is fatal to the maintainability of the present suit even in respect of Religious Endowments and Trusts.

6. The second appeal therefore fails and is dismissed with costs.


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