William Phillips, Officiating C.J.
1. The question that has been referred for our opinion is:
In a temple scheme settled by the Court where liberty to apply is reserved to a person or persons (a) to ask for directions as to carrying out the scheme or (b) to move the Court for alterations or modifications of the scheme--is this reservation intra vires of the Court or is a separate suit necessary either under the provisions of Section 92, Civil Procedure Code, or on the 'ground that the suit has come to an end and the Court therefore functus officio?
2. This question has been decided by a Bench of this Court in Abdul Hakim Baig v. Burratniddin ILR (1925) M 580 where it was held that the provision in a scheme for an application being made for relief specified in Section 92, Civil Procedure Code, was ultra vires. The same view was also taken by another Bench of this Court in Brahmayya v. Venkatasuryanarayanamurthy (1925) 50 MLJ 409 and in Narayanamurthi v. Achayya Sastrulu : AIR1925Mad411 , Spencer and Srinivasa Aiyangar, JJ., came to the same conclusion although in that case the observation was purely obiter. In Ankayya v. Venkata Ramayya (1926) M W N 283, Madhavan Nair, J., and myself were inclined to take the same view, but it was unnecessary for the purposes of that case to decide the question. Prima facie a direction by the Court that future proceedings with reference to a trust should be held before it by means of an application would appear to be ultra vires in view of Section 92, Civil Procedure Code. That section prescribes that in the case of breach of a trust created for public purposes of a charitable or religious nature a suit has to be filed either by the Advocate-General or by persons was have obtained his sanction. The section specifically indicate that the remedy is by way of a suit subject to certain conditions and consequently any provision which says that the same remedy may be obtained by means of an application without conditions to the Court would appear to be ultra vires. It is pointed out in Prayag Doss Ji Varu, Mahant v. Tirumala Srirangacharlavaru : (1905)15MLJ133 by Subrahmania Aiyar, J., that the Courts in this country have been given under Section 539 of the Civil Procedure Code (corresponding to the present Section 92) the same powers as were possessed by the Court of Chancery at the time of its enactment, and this view was upheld in Ramados v. Hanumantha Rao ILR (1913) M 364 : 1913 21 MLJ 952. It does not necessarily follow from this that the procedure to be adopted when exercising this power must be the procedure prescribed for the Court of Chancery in England. On the contrary, in cases relating to public trusts Section 92 of the Civil Procedure Code definitely lays down the procedure to be adopted before the jurisdiction of the Court can be invoked. Similarly in England under Sir Samuel Romilly's Act and the Charitable Trusts Act a certain procedure is laid down and that procedure is different from the procedure in this country, for the Attorney-General is allowed to proceed in the matter of these trusts by means of a petition--a procedure which has been substituted for the previous method of proceeding by information. As against this view it was contended by Mr. Rangachariar that the Courts have power to insert such provisions in a scheme and he bases his argument on two grounds : (1) In Administration suits and other similar suits the Court has always power to give leave to apply and even in some cases where such leave is not expressly reserved it may be implied; and (2) The Privy Council has on two occasions sanctioned the insertion of a similar provision in schemes approved by it. The principle upon which the Court reserves leave to apply is based on the fact that in certain suits the Court is unable to give a complete judgment upon all the points connected with the case, or even if it is not unable to do so, it thinks it advisable that the decision should be deferred. In all such cases, naturally leave to apply at a later date is either expressly given or possibly may be implied, but when the Court has finally decided any question there can be no ground for granting leave to put in an application to modify this final conclusion, for the final conclusion has become a decree and an application to modify it would be an application to set aside the decree. When therefore the Court has definitely framed a scheme for a religious institution under Section 92, Civil Procedure Code, and has decided that certain things shall be done under the scheme, it can hardly be said that this is not a final adjudication of all the questions arising in the suit in connection with such scheme and consequently one cannot infer that anybody could as of right apply for modification of the scheme. Reference may be made to Re Jarvis's Charity (18), where it was held that when a petition was presented for the appointment of a new trustee the certificate of the Charity Commissioners under the Charitable Trusts Act was essential. That certificate is similar to the sanction of the Advocate-General referred to in Section 92. The ground of that decision was that a final order had already been made and therefore the petition on which it was made cannot be said to be actually pending. It was held in Attorney-General v. The Bishop of Worcester (1851) 9 Hare 328 : 68 ER 530 that a scheme having been framed might be subsequently altered but it was recognised that such alteration must be effected on an application by the Attorney-General--the procedure prescribed for such matters in England. The mere fact that the Court will allow a modification of the scheme does not necessarily show that modifications can be carried out in this country by procedure other than that prescribed by Section 92.
3. So far as the authority of the Privy Council is concerned, I am inclined to think that too much weight may easily be attached to the two cases relied on by Mr. Rangachariar. The first is the Tirupathi Temple case, Prayag Doss Ji Varu, Mahant v. Tirumala Srirangacharlavaru : (1905)15MLJ133 . The judgment of this Court in that case does not give us much assistance in the present case, but in the appeal from this Court, the judgment in which is reported in Prayag Doss Ji Varu v. Tirumala Srirangacharlavaru ILR (1907) M 138 : 1907 17 MLJ 236, the Privy Council with a few modifications approved the scheme framed by the Madras High Court and that scheme contained the following two provisions:
Clause 10. Liberty for the Vicharnakartha and any person interested to apply to the District Court with reference to the carrying out of the directions of the scheme.;
Clause 11. Liberty for the Vicharanakartha and any person interested from time to time to apply to the High Court for any modification of the scheme that may appear to be necessary or convenient.
4. The words 'or convenient' were added by the Privy Council. Clause 11 certainly supports Mr. Rangachariar's view that the Privy Council approved of a direction to apply to the Court by a petition for modification of the scheme. However, when we peruse the report more carefully it appears that this appeal was heard ex parte and the scheme appears to have been finally settled 'with the assistance of the learned Counsel engaged.' The question of the validity of Clauses 10 and 11 was not raised before their Lordships and cannot be said to have been decided. The other case relied on is the Dakore Temple case (1925) 28 Bom. LR 309. This went before the Privy Council and is reported in Kirpashankar v. Manohar Tambekar (1912) 24 M L J 199. In that case the scheme prepared in the lower court was approved with a few modifications. Reliance is placed mainly on Clause 20 of the scheme which says that the provisions of the scheme may be altered, modified, or added to by an application to His Majesty's High Court of Judicature at Bombay; but we find there is also a Clause (12) which directs the Committee to make rules for various purposes, which rules have to be sanctioned by the District Court of Ahmedabad, so that they may have the same force as if they were part of the scheme, Sub-clause 7. Therefore, after the case left the Privy Council further rules had to be framed and sanctioned by the District Court, and apparently under Clause 20 alterations or modifications might be made by the High Court of Bombay. That this is the intention of their Lordships appears from the report in Bhogilal v. The Dakore Temple Committee (1925) 49 MLJ 25. Apparently rules had been framed under the scheme and were sanctioned by the District Court. Against the order of the District Court an appeal was filed in the High Court and from there the case was taken to the Privy Council. It was then held that it was wrong to consider the order made by the District Judge sanctioning the rules as one under Section 47, Civil Procedure Code, and therefore no appeal lay to the High Court and similarly no appeal lay to His Majesty in Council; but it was suggested that the High Court had power conferred upon it by Clause 20 of the scheme to alter, or modify, or add to the rules sanctioned by the District Judge on an application made to it with that object, but it had no other power. The scheme, therefore, as it left the Privy Council, was not final and further orders were necessary in the District Court and in the High Court before the scheme took its final shape. In the circumstances of these two cases which I have analysed can it be said that the Privy Council has decided that a provision for persons interested to apply for modification of the scheme is not ultra vires? To do so would, I think, be stretching case-law too far. The point was never raised, much less decided, but in certain circumstances and without contest the Privy Council has given its sanction to such a rule in the Tirupathi Temple case ILR (1907) M 138 : 1907 17 MLJ 236. The rule in the Dakore Temple case, Kirpashankar v. Manohar Tambekar (1912) 24 MLJ 199 appears to be one framed before the final shaping of the scheme. I am, therefore, of opinion that in neither of these cases can it be said that the Privy Council is of the opinion that such a clause is intra vires. We have, therefore, the opinion of several Judges of this Court that such a rule is ultra vires and, on the other side, there is the very vague authority of the decisions of the Privy Council.
5. In Patna and Calcutta a different view has been taken. In Sadupadhya Omeshanand Oja v. Raveneswar Prasad Singh 43 IndCas 772 it was held by the Calcutta High Court that power might be given to amend the scheme on an application--a power which should even include the removal of a member of the temple committee. In Muhammad Waheb Hussain v. Abbas Hussain (1922) 4 PLT 326, the Patna High Court held that not only was such a rule intra vires but that it was necessary that it should be inserted. Both these cases seem to treat the suits as administration actions, but although they may deal with questions relating to the administration of the trust fund, certainly not every suit under Section 92 can be called an administration suit. A suit may be for the removal of a trustee and the decree may be passed accordingly, but this certainly cannot be said to be an administration suit. The question of administration very frequently arises and it is for the Court to decide in what manner the administration shall be carried out, but it does not follow from that that the Court should assume to itself the administration of the trust, which, in fact, it does, if it makes rules providing for applications to be made by trustees and others interested in the trust for varying or modifying the scheme already framed. If there is leave to apply in. such suits, it necessarily implies that the suit is pending, and therefore if once a suit has been filed for settling a scheme and liberty to apply is given in the scheme, the suit should be deemed pending for ever and ever, for it is always possible that some person interested may make an application. This principle therefore of reserving liberty to apply in temple suits appears to me to be based on wrong premises. It should only be done when the Court is unable, or for good reasons thinks it advisable not to finally determine any question arising for its decision but to leave such decisions for a future date. Unless there is some ground of this sort, the decision must necessarily be final and therefore an order that such final decision can be altered by a mere application would seem to be ultra vires. I may observe here that the question put to us is a double question and the answer to the two parts of the question must be different. The first is 'Where liberty to apply is reserved...to ask for directions as to carrying out the scheme . So far as this is concerned this may well be intra vires unless it contravenes the provisions of Section 92, Civil Procedure Code, for the assistance of the Court is asked merely to carry out what it has already odrered, and if such assistance can be given without contravening the provisions of Section 92, there can be no objection to such a rule being framed, but when premission is given to apply to the Court for alteration or modification of the scheme it appears to me that this at once offends against Section 92. The scheme having been framed, any modification or alteration of it is in effect a new scheme and the power to frame a scheme is given only subject to the conditions specified in Section 92. I will therefore answer the question put to us by one joint answer, namely, that the reservation by the Court to a person or persons to apply for a relief which will come within Section 92 of the Civil Procedure Code is ultra vires but that if such reservation does not offend in this way or against any other provision of law it may be useful or advisable for carrying out the provisions of the scheme already framed.
6. I agree.
Anantakrislma Aiyar, J.
7. I also agree.