(1) This is a petition seeking to revise the order of the Principal Subordinate Judge, Tiruchi, holding that an application for removal of trustee in a scheme suit is not maintainable, and that the remedy of the petitioners is to file a proper suit for the purpose of the removal of the trustees. A scheme was framed for the management of Tennur Hazarat Kuthisha Durga wakf by the Sub Court on 31-7-1937. The petitioners are shares belonging to Bibi Sahib's branch. The second respondent in the lower court was the hereditary trustee, and, other, non-hereditary trustees. The petition was opposed on the ground that the application was not maintainable.
(2) The scheme decree provides for the appointment of trustees. Clause (6) of the decree provides that non-hereditary trustees shall hold office for five years subject to the removal by court in the meanwhile for misfeasance, malfeasance or nonfeasance. According to the respondents, for the purpose of removal of trustees on the ground of misfeasance, malfeasance or non-feasance, a proper suit has to be filed and an application in execution would not lie. The petitioners, on the other hand, contended that, as the scheme decree itself provided for removal of the trustees on the ground of misfeasance malfeasance or non-feasance, the petition would lie. The lower court relied on Vaithialinga Mudaliar v. Board of Control Sri Thiagarajaswami Devasthanam, Tiruvarur, 71 MLJ 87: AIR 1936 Mad 581 and held that the application was not maintainable.
(3) In Veeraraghavachariar v. Advocate General, Madras, ILR 51 Mad 31: AIR 1927 Mad 1073 a Full Bench of this court held that, if in a decree for a scheme framed under S. 92 C.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 S. 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 S. 92, In 71 MLJ 87: AIR 1936 Mad 581 this court followed the Full Bench decision and held that a scheme decree for a charitable trust cannot reserve any power to the court as a part of the scheme to remove of the tussle of a charitable trust is contained in Section 92 Civil Procedure Code and that removal can only be by means of a suit instituted in accordance with that provision. The Full Bench deacon of this court in Veeraraghavachariar v. Advocate General Madras ILR 51 Mad 31: AIR 1927 Mad 1973 was commented upon by the Supreme Court in Anandrao v. Shamrao : 3SCR930 . The Supreme Court disagreed with the reasoning of the Full Bench decision of this Court and held:
'It is not necessary to hold that a suit under S. 92 in which a scheme is framed providing such a clause is pending for ever. The scheme deals with the administration of the trust and for the purposes of the scheme it would not be wrong or improper to treat a suit under S. 92 as analogous to an administration suit. On that view, it would in our opinion be just and convenient to provide for a clause in the scheme which is framed for the administration of the trust to allow for its modification by an application.'
While deferring from the view of the Madras High Court, the Supreme Court accepted the view of the Bombay, Calcutta, Allahabad and Patna High Courts and held that it is open in a suit under S. 92 where scheme is to be settled to provide in the scheme for modifying it as and when necessity arises, by inserting a clause to that effect, that such a scheme is analogous to an administration suit, and that so long as the modification in the scheme is for the purposes of administration, such modification can be made by application under the relevant clause of the scheme, without the necessity of a suit under S. 92 C.P.C.
In Chandraprasad Ramprasad v. Jinabharathi Narayan ILR 55 Bom 414: AIR 1931 Bom 391 it was held that the District Court was competent to remove a trustee and also to alter or amend the scheme upon an application of on its own initiative when the scheme authorised he District Court to do so, and that no separate suit under S. 92 C.P.C. was necessary. The Supreme Court observed that the view taken by the Bombay High Court as to the power to modify the scheme by application if such power is reserved in the scheme has been followed by the Allahabad, Calcutta and Patna High Courts. The Supreme Court followed the decision in : 3SCR930 in B. V. J. Ramarao v. Board of Commrs., for H. R. C. Andhra Pradesh C. A. Nos. 531 and 532 of 1961 (Andh Pra).
(4) Mr. Venkatarama Iyer, the learned counsel for the respondent, submitted that the decision of the Supreme Court is not applicable to the facts of this case. He pointed out that the Supreme Court specifically dealt with an appeal relating to the modification of a scheme and did not deal with the removal or appointment of a new trustee. He relied on the following observations of the Supreme Court in : 3SCR930 .
'In the present appeal we are concerned only with the modification of a scheme; we are not concerned with appointment or removal of trustees or any other matter enumerated in sub-sec (1) of S. 92. We do not interfere propose to consider whether it would be open to appoint or remove trustees etc., on the ground of breach of trust without recourse to a suit under S. 92. We shall confine ourselves only to the question whether in a case where here is a provision in the scheme for its modification by an application to the Court, it is open to the Court to make modification therein without the necessity of a suit under S. 92'.
The learned counsel also pointed out that he case before the Supreme Court did not relate to the dismissal observations of the Supreme Court:
'We therefore accept the view of the Bombay, Calcutta, Allahabad and Patna High Courts in this matter and hold that it is open in a suit under S. 92 where a scheme is to be settle dot provide in the scheme for modifying it as and when necessity arises, by inserting a clause to that effect'.
The contention of the learned counsel, therefore, in effect is that even if in a scheme decree there is provision for modification of the scheme by application, no application is maintainable for removal or for appointment of a trustee, unless by way of suit under S. 92 C.P.C. I am unable to read the Supreme Court's decision in the manner the learned counsel would read it. Section 92 provides for Advocate General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General to institute a suit for such reliefs as enumerated in clauses (a) to (b) of the section. Clauses (a) and (b) relate to removing and appointing a trustee, and clause (g) relates to settling a scheme. It is possible that a suit under S. 92 is laid only for the purpose of removing a trustee or for appointing a new truce. In a suit for settling a scheme, it may be that provision is made in the scheme decree for removing a trustee and appointing a new trustee as in this case.
If in a suit for settling a scheme provision is made in the scheme decree for the removal of a trustee and appointing a new trustee, there can be no warrant for the contention of the learned counsel for the respondents that, though such provision is provided for in the scheme decree itself, as application is not competent and the only remedy is by way or a separate suit under S. 92. The clause relating to the removal of trustees in the scheme decree would amount only to modification of the scheme & I do not see any reason why the modification cannot be obtained by means of an application. If the relief is asked for without the scheme having been settled for removal of a trustee, the only course would be filing a separate suit under S 92. That is not so in the present case. Even though the observations of the Supreme Court deal with the modification of the scheme, the decision of the Supreme Court does not in terms exclude its application to the clause for removal of a trustee, if it formed part of the scheme decree itself.
(5) In the result, I accept the contention of the learned counsel for the petitioners and hold that an application for removal of trustees under clause 6 of the scheme decree is competent. The civil revision petition is allowed and the matter is remanded to the trial Court for disposal on merits. The costs in this civil revision petition will abide and follow the final result in the application.
(6) Petition allowed.