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Ramanuja Krishna Aiyangar and anr. Vs. Ramanuja Alwarappa Aiyangar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad70; 140Ind.Cas.197; (1932)63MLJ703
AppellantRamanuja Krishna Aiyangar and anr.
RespondentRamanuja Alwarappa Aiyangar
Cases ReferredDurai v. Duraiswami Pillai A.I.R.
Excerpt:
- - if both these tests are satisfied we must hold that the suit is one covered by that section, which must be instituted after satisfying the requisites laid down in that section. in view of the partial success and failure of either party, i think fit to direct the parties to bear their respective costs here and in the lower appellate court......form of action. the question is not altogether free from difficulty. there is, no doubt, that the trust mentioned in the plaint was created for public purposes of a charitable nature. the plaintiff's status as a co-trustee along with defendants 1 and 2 and his right to be in joint possession of the trust properties have been declared. the further relief asked for in the plaint is the subject-matter of dispute in the present second appeal. the observation in the order of reference to a full bench in the case reported in appanna poricha v. narasinga poricha i.l.r. (1921) 45 mad. 113 : 41 m.l.j. 608 is to the effect, that even in a suit brought by a plaintiff for the establishment of his personal right as a trustee, if he asks the court to settle a scheme for the management of the trust.....
Judgment:

Sundaram Chetty, J.

1. The only point for consideration in this second appeal is, whether the plaintiff's suit, so far as it asks for the settlement of a scheme for the management of the Trust properties in rotation by the plaintiff and defendants 1 and 2, is maintainable in this form, or in other words, whether Section 92 of the Civil Procedure Code is a bar to the maintainability of this suit so far as the above-mentioned prayer is concerned. The trial Court was of opinion that such relief could be granted only in a suit under Section 92, Civil Procedure Code, whereas the lower appellate Court came to a different conclusion and held that that relief could be granted to the plaintiff even in this form of action. The question is not altogether free from difficulty. There is, no doubt, that the trust mentioned in the plaint was created for public purposes of a charitable nature. The plaintiff's status as a co-trustee along with defendants 1 and 2 and his right to be in joint possession of the trust properties have been declared. The further relief asked for in the plaint is the subject-matter of dispute in the present second appeal. The observation in the order of reference to a Full Bench in the case reported in Appanna Poricha v. Narasinga Poricha I.L.R. (1921) 45 Mad. 113 : 41 M.L.J. 608 is to the effect, that even in a suit brought by a plaintiff for the establishment of his personal right as a trustee, if he asks the Court to settle a scheme for the management of the trust properties, he cannot obtain such relief except in a suit instituted under Section 92, Civil Procedure Code. But the observations of the judgments of two of the learned Judges who comprised the Full Bench indicate that the test is not merely the relief asked for being one of the reliefs mentioned in Section 92, but it must be also considered whether the suit is brought for the plaintiff in order to vindicate his own individual or personal right as against other persons interested in denying his rights or whether the suit is one brought by him on behalf of the public as a representative suit in the interests of the institution. It would appear that if the suit be one for the vindication of the right of management by a trustee and the dispute is between the trustees inter se, then the relief asked for in such a suit, though one specified in Section 92, could be granted, without the sanction of the Advocate-General or the Collector as required by the aforesaid section. But for the pronouncement by the Privy Council in the decision reported in Abdur Rahim v. Mahomed Barkat Ali (1928) L.R. 55 IndAp 96 : I.L.R. 55 Cal. 519 : 54 M.L.J. 609 (P.C.) I should follow the view expressed in the aforesaid Full Bench decision. On a perusal of the observations of their Lordships of the Privy Council at page 529, it seems to me that they wanted to set at rest the conflict of judicial opinion by a clear pronouncement as to the real scope of Section 92, Civil Procedure Code. After stating that in some decisions it was held that private persons who had individual rights under such trusts could bring suits to enforce such individual rights by ordinary suits without being obliged to bring a suit of a representative nature, it is stated that great divergence of opinion had arisen in India in this connection not merely as between different High Courts but also different Benches of the same Court. Their Lordships construe Sub-section (2) of Section 92, Civil Procedure Code, adopting the view taken by the Bombay High Court as opposed to the view taken by the other High Courts generally, and state that a suit which prayed for any of the reliefs mentioned in Section 92 could only be instituted in accordance with the provisions of that section. They further observe that the words used in Sub-section (2) are appropriate and sufficient if that was the purpose. I take it, that this pronouncement has been made to set at rest the controversy on this point, and as I understand the judgment of their Lordships it must be taken that the real test for applying Section 92 is to see whether the plaintiff has prayed for any of the reliefs mentioned in that section. In order to see whether Sub-section (1) of Section 92 applies to any case, there seem to be two tests. One is whether the case relates to any breach of an express or constructive trust mentioned therein or whether the direction of the Court is deemed necessary for the administration of any such trust. The second test is whether the relief asked for is one of the reliefs specified in that section. If both these tests are satisfied we must hold that the suit is one covered by that section, which must be instituted after satisfying the requisites laid down in that section.

2. It is unnecessary to consider the argument by Mr. Sitarama Rao on behalf of the appellants that a relief of this kind, namely, settlement of a scheme for the management of a public charitable property, is one that was not within the competence of the mofussil Courts to grant, apart from Section 539 of the old Code or Section 92 of the present Code. It is unnecessary to canvass that point in the present case, in the view I have taken that the present suit, in so far as it asks for the settlement of a scheme for the management by way of invoking the directions of the Court for the administration of the trust, is covered by Section 92. If any relief of this kind is based upon an agreement arrived at between co-trustees or on the terms of a will executed by the founder of the trust or any other descendant of his when he was the sole trustee, the matter would be different. A suit brought on the basis of such an agreement or arrangement or the will would be merely to enforce the terms of the contract or the terms of the will. It cannot be considered to be a suit, where the directions of the Court for the administration of the trust are asked as being necessary for the proper management of the trust. In the present case, there is no such contract or arrangement; nor is there any evidence as to any usage regarding the mode of management of the trust property. I take it that the plaintiff by virtue of his being the holder of the office of trustee along with his co-trustees asks for directions of the Court regarding the administration of the trust by settling a scheme for its management by rotation. It seems to me that the decision in Durai v. Duraiswami Pillai A.I.R. 1927 Mad. 948, relied on by the lower appellate Court, does not govern the present case, for the reasons already mentioned by me. In that case the direction for the management of the trust by rotation was based on the terms of the will and those directions were not given by the Court in the exercise of its discretion in the absence of any previous arrangement come to between the parties. If any scheme for the management of this trust is required, the proper course is to adopt the procedure prescribed in Section 92 of the Civil Procedure Code.

3. I therefore allow this appeal and set aside the decree of the lower appellate Court and restore the decree of the first Court. The order of the first Court passed as to costs will stand. In view of the partial success and failure of either party, I think fit to direct the parties to bear their respective costs here and in the lower appellate Court.


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