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B. Sivaram Dubai Vs. R. Rajagopala Misra and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtChennai
Decided On
Reported inAIR1930Mad918; (1931)60MLJ514
AppellantB. Sivaram Dubai
RespondentR. Rajagopala Misra and anr.
Cases ReferredVeeraraghavachariar v. The Advocate
Excerpt:
- - he also argues that we should in any event interfere under our revisional powers because, he says, that the learned district judge was not entitled to make the appointment complained of, and that, in spite of the terms of the scheme decree, such an appointment could be made only in a suit instituted under section 92 of the code after the necessary sanction had been obtained. but the most interesting and important part of mr......was not entitled to make the appointment complained of, and that, in spite of the terms of the scheme decree, such an appointment could be made only in a suit instituted under section 92 of the code after the necessary sanction had been obtained. i think it will be more convenient to deal with the second objection first. to appreciate mr. ganapathi aiyar's argument it is necessary to refer to paragraphs 4 and 15 of the scheme. paragraphs 4 runs as follows:each of the two trustees to be appointed by the court should hold office for a term of five years but should be eligible for re-appointment, and any vacancy in the office of either of the said trustees shall be filled up by the court.2. paragraph 15 is to the following effect;-:liberty is reserved for the parties to the suit or for.....
Judgment:

Anantakrishna Aiyar, J.

1. This appeal and the revision petitions arise out of an order passed by the learned District Judge of Madura, by which he appointed two new persons as trustees of the Ranga Chattram charities in the place of the two old trustees whose term of office expired after they had held office for five years under the scheme. One of the trustees whose term had so expired sought re-appointment and, as he was not re-appointed, he has preferred this Miscellaneous Appeal and the connected revision petition. Mr. Rajah Aiyar, who appears for the respondents, the newly appointed trustees, raised a preliminary objection that the appeal does not lie; and the answer of Mr. Ganapathi Aiyar was that the matter in dispute is really covered by Section 47 of the Code of Civil Procedure and that an appeal lies. He also argues that we should in any event interfere under our revisional powers because, he says, that the learned District Judge was not entitled to make the appointment complained of, and that, in spite of the terms of the scheme decree, such an appointment could be made only in a suit instituted under Section 92 of the Code after the necessary sanction had been obtained. I think it will be more convenient to deal with the second objection first. To appreciate Mr. Ganapathi Aiyar's argument it is necessary to refer to paragraphs 4 and 15 of the scheme. Paragraphs 4 runs as follows:

Each of the two trustees to be appointed by the Court should hold office for a term of five years but should be eligible for re-appointment, and any vacancy in the office of either of the said trustees shall be filled up by the Court.

2. Paragraph 15 is to the following effect;-:

Liberty is reserved for the parties to the suit or for the Advocate-General to apply to the Court with reference to the carrying out of the directions contained in the scheme.

3. Mr. Ganapathi Aiyar argued that the provision in paragraph 4 of the scheme only means that the Court, when approached under Section 92, should have the power to appoint proper trustees in cases of vacancy. He also relied on the decision of the Full Bench in Veeraraghavachariar v. The Advocate-General of Madras I.L.R. (1927) M. 31 : 53 M.L.J. 792. I am unable to agree with him. That decision only laid down that, in cases where it is sought to effect alterations or modifications of a scheme, the same could be effected only by proceedings taken under Section 92 of the Civil Procedure Code. The question referred to the Full Bench was whether, in cases where liberty to apply is reserved to a person to ask for directions as to the carrying out of a scheme or to move the Court for alterations or modifications of the scheme, applications to have such things carried out could be made in the suit itself or whether the same could be done only by separate proceedings taken under Section 92 of the Civil Procedure Code. At page 4 5 of the judgment of the learned Officiating Chief Justice, who delivered the opinion of the Full Bench, it is mentioned as follows:

A scheme having been framed, any modification or alteration of it is in effect a new scheme and the power to frame a new scheme is given only subject to the conditions specified in Section 92.

4. In the present case, if by virtue of the liberty given by the scheme to apply to the Court, it be sought to effect alterations or modifications of the scheme, then, by virtue of the Full Bench decision, they can be effected only after proceedings are taken under Section 92. But there is paragraph 4 of the scheme which I have already mentioned. It provides for the filling up of vacancies whenever such vacancies occur; and it says that any vacancy in the office of either of the said trustees should be filled up by the Court. I do not agree with the arguments of the learned advocate for the appellant that filling up vacancies under such provisions of the scheme amounts to either alteration or modification of the scheme. I put him the question whether he would contend that, if the scheme contained a provision for the filling up of vacancies by a vote of the majority of a Board of Electors, or by any specified authority, and such authority appointed particular persons to fill up the vacancies, the same also would come within the ruling of the Full Bench. If I understood him correctly, he was not prepared to go to that extent; and his argument was that in cases where the right to appoint is given to the Court the power of appointment could not be exercised as the provisions of Section 92 are automatically attracted. I am unable to agree. In this respect I am unable to find any material difference between a case where under the scheme, the power to appoint is given to an outside body and one where such power is given to the Court itself. It, therefore, seems to me that the present is not a case where any modification or alteration of the scheme is asked for by virtue of any power to apply reserved under the scheme. If I am right in this view, it would follow that the Lower Court had jurisdiction to entertain the application and that we should not be justified in interfering in revision.

5. But the learned advocate argued that in that view the matter must be taken to be one arising in execution and falling within the scope of Section 47 of the Civil Procedure Code, and that he would have a right of appeal. In support of that argument he relied on the decision of the Privy Council in Ponnambala Tambiran v. Sivagnana Desika Gnama Sambhanda Pandara Sannadhi , and that of a Bench of this Court in Ramanathan Chettiar v. Balayee Ammal (1927) 27 L.W. 32. After carefully considering the words of the decree which was the subject of comment by the Privy Council, I find that that case does not really lend support to his contention. The decree which was the subject of discussion before the Privy Council is found at page 339 of Gnanasambanda v. Visvalinga I.L.R. (1890) M. 338. The decree is set out in extenso there, and I find that the operative portion of the decree was:

That the Subordinate Judge of Kumbakonam in order to fill up the now vacant office of Tambiran of the Tiruppanandal Mutt do direct the appellant, etc...(to name a Tambiran from among the Tambirans of his adhunani, competent to discharge the duties of managing Tambiran of the Benares (Kasi) Mutt at Tiruppanandal).

6. The matter before the Court thus relates to the filling up of a then existing vacancy, and not to provide for the filling of ail future vacancies should there be any, and it was with reference to the filling up of the actual vacancy which was the subject-matter of the suit that the litigation was carried to the Privy Council; and when the remarks of their Lordships of the Privy Council are read in the light of the wording of the decree in that case, I think that the judgment of the Privy Council does not support the contention of the appellant before us. The provision in paragraph 4 of the scheme before us is not for the filling up of any existing vacancy; and that, 1 think, is a material distinction between the case quoted by the appellant and the one before us. The other case referred to by the learned advocate. Ramanathan Chettiar v. Balayee Ammal (1927) 27 L.W. 32, a judgment of Ramesam and Cornish, JJ., was a case where the learned Judges specifically observed that they did not question the correctness of the numerous cases quoted before them, in which with reference to scheme suits generally it was held that the matter did not relate to execution and that an appeal did not lie; they distinguished the case before them on the ground that when specific directions were given in the scheme decree, then with reference to such directions the decree would be an executable decree. They, however, felt some doubt on the question, and accordingly resolved to treat the matter before them as coming under Clause (2) of Section 47 under which Courts are given discretion to allow a petition filed under that section to be treated as a plaint. Both the learned Judges refer to this aspect of the case, and they finally resolved to treat the proceedings before them as a plaint as there was no other objection to their doing so.

7. Having thus disposed of the two cases on which reliance was mainly placed by the learned advocate for the appellant, I may state that our attention was drawn by the learned advocate for the respondents to numerous cases where this Court held-, that an appeal does not lie in such cases, and that such matters could not be taken to be matters arising under Section 47 of the Code: Rangmatha Thathachariar v. Krishnaswami Thathachariar I.L.R. (1923) M. 139 (Oldfield and Venkatasubba Rao, JJ.), Sivan Pillai v. Venkateswara Aiyar (1925) 22 L.W. 796 (Spencer and Madhavan Nair, JJ.), Bangarammal v. Ramanuja Aiyangar (1925) 94 I.C. 610, (Devadoss and Waller, JJ.), Abdul Hakim Baig v. Burramiddin I.L.R. (1925) M. 580 (Devadoss and Wallace, JJ.), are among the cases to which our attention was drawn by the respondents' learned advocate. It was there held that in such cases Section 47 would not apply. I do not see any reason for not following those cases; more especially as the observations of the Privy Council in the Dakore case, Sevak Jeranchod Bhogilal v. The Dakore Temple Committee, (1925) 49 M.L.J. 25 (P.C.) seem to lend support to the contention of the respondents.

8. For the above reasons I hold that no appeal lies in this case under Section 47, Civil Procedure Code, and I would accordingly dismiss the appeal with costs. I would fix the pleader's fee at Rs. 250.

9. I have already mentioned that the Lower Court had jurisdiction to proceed to make the appointments by virtue of the provisions of Clause (4) of the scheme and that the decision of the Full Bench in Veeraraghavachariar v. The Advocate-General of Madras I.L.R. (1927) M. 31 : 53 M.L.J. 792 does not support the contention of the petitioner that the Lower Court had no jurisdiction to do so. That being so, I would dismiss the revision petitions also, but, in the circumstances, without costs.

10. No orders are necessary on the Miscellaneous Petitions.

Reilly, J.

11. I agree that in this case no appeal lies both because, as my learned brother has pointed out, the proceedings before the District Judge were not proceedings within Section 47 of the Code arising in execution and because the parties concerned are not parties to the suit. But the most interesting and important part of Mr. Ganapathi Aiyar's contention was that Clause (4) of the scheme for this trust, under which the District Judge has appointed the two respondents trustees, is ultra vires, having' been made in a scheme suit under Section 92 of the Code of Civil Procedure, but according to his contention being in conflict with the Full Bench decision of this Court in Veeraraghavachariar v. The Advocate-General of Madras I.L.R. (1927) M. 31 : 53 M.L.J. 792 . In this case we are fortunate in the fact that my learned brother was a member of that Full Bench, and he has expounded the decision of the Full Bench. As he has pointed out, it was there laid down that, if a scheme made in a suit under Section 92 of the Code provides for liberty to apply for the modification of that scheme, then that provision is ultra vires; and, as I understand the case, it was also decided that, if the scheme provides for liberty to apply for directions, those directions cannot extend to anything which the Court is empowered to do under Section 92 of the Code. Mr. Ganapathi Aiyar urges that under that section the Court has power to appoint a new trustee; and from that he argues on the strength, as he says, of the Full Bench decision, that any provision in a scheme made under the section that a trustee shall be appointed to fill a vacancy by the Court is ultra vires. To my mind the selection and appointment of a trustee by the Court in accordance with such a scheme when a vacancy occurs is a very different thing from the appointment of a new trustee referred to in the section. If we look at the section, we' find that under it the question of the Court appointing a new trustee arises only when the direction of the Court is deemed necessary for the administration 'of the trust. That may happen when a trustee is removed by the Court and no other machinery for replacing him comes into play or when a direction in the matter is required in other circumstances. But, when a scheme has provided regular machinery for the appointment of a trustee if a vacancy occurs, no direction of the Court is required for working that machinery in an ordinary case or in a case such as this. The machinery is there ready for use; and it does not appear to me to make any difference whether the machinery set up by the scheme is a Court which would have jurisdiction in a suit under Section 92 of the Code or any other body or person. In my opinion, therefore, the provision in this scheme that, when vacancies occur among the trustees other than the life-trustee, the vacancies shall be filled by the District Court is not in any way in conflict with the interpretation of Section 92 of the Code by the Full Bench in Veeraraghavachariar v. The Advocate-General of Madras I.L.R. (1927) M. 31 : 53 M.L.J. 792.

12. I agree that this appeal and the revision petitions should be dismissed. I also agree with the order proposed by my learned brother as to costs.


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