1. The eighth defendant in C.S. No. 29 of 1956 on the file of this Court is the appellant before us. One Rao Bahadur A.K.D. Dharma Raja since deceased, founded a trust, called the Dharma Raja Educational Charity Trust, Rajapalayam. There were disputes in the working of the trust and the matter came up before this Court and a scheme was settled in C.S. No. 29 of 1956. The purport of the scheme was that each of the sons of the founder A. K. D. Dharma Raja, was to manage the trust for three years successively. Clause 3 of the scheme provided that the trustee-manager shall be nominated by the District Judge of Ramanathapuram from among the male members of the founder's family according to seniority and the right of each of the five sons of the founder and the male members of each branch to hold the office for a period of three years in rotation by turns, unless disqualified. Regarding the actual management, Clause 23 provided that the trustee-manager would be entitled to nominate a deputy to act for him under deed for a limited period of three months at a time, that, if he could not act as a trustee beyond that period, he should be deemed to have vacated his office unless he registered (resigned?) the office by a letter and that such nomination of a deputy could take place only twice during his period of office of three years. One other clause that needs to be referred to in this connection is Clause 30, which runs as follows:
Any of the five trustees will be at liberty to apply to the District Judge of Ramanathapuram for any directions in regard to any matter of difficulty experienced by the trustees in the working of the scheme or in regard to the correct interpretation of any provisions of the scheme and the District Judge of Ramanathapuram shall have to give all such directions for the proper and efficient working of this scheme.
2. The application out of which this appeal arises was taken out by the eighth defendant in the suit praying for modifying the earlier portion of Clause 23 of the scheme decree by substituting the following clause (viz.),
If any of his sons or his heirs during his turn, finds it inconvenient to be trustee-manager, then he can after advance notice to the trustee-manager then in office nominate as his deputy for any period during his turn, any of his major male decendants or any major male member in the founder's family to be trustee-manager in his place without prejudice to such nominee's rights for his usual turn in the cycle.
in the place of Clause 23 commencing from the words. 'The trustee-manager will be entitled to nominate a deputy to act' and ending with the words, 'such nomination of a deputy can take place only twice during his period of office of three years.'
3. The relief claimed, in short, is that instead of Clause 23 of the scheme decree which provides that the trustee-manager will be entitled to nominate a deputy to act for him under a deed for a limited period of. three months at a time and a total period of six months during his office of three years, the appellant herein wants his right to nominate his deputy for the entire period of three years out of his male descendants or from the male members of the founder's family. The effect will be to achieve something which is prohibited under Clause 23 of the scheme decree. The question that arises for consideration is whether the scheme decree can be modified as prayed for.
4. The general law as set forth in Order 20, Rule 3 of the Code of Civil Procedure is that, where a judgment has been pronounced and signed by the Judge, it shall not afterwards be altered or added to save as provided by Section 152 or on review. We are not now concerned with Section 152 or an application for review. So far as this absolute prohibition for modification of a decree is concerned. Some exceptions have been followed in practice. Regarding a decree passed under Section 92 of the Code of Civil Procedure admittedly there has been a practice to include a clause in the scheme itself reserving liberty to persons interested to apply from time to time, to the Court for modification of the scheme. In Prayaga Dassjee Varu v. Tirumala Anandam Pillai 17 M.L.J. 236 : I.L.R. Mad. 138 : (1907) 34 I.A. 78. The Privy Council itself framed a scheme and one of the terms in the scheme was that liberty was reserved to persons interested from time to time to apply to the High Court for any modification of the scheme. Again in Kirpaskanker v. Gopal Rao (1913) 24 M.L.J. 199. the scheme which was framed by the Privy Council in that case contained a clause which provided that the provisions of the scheme might be altered, modified or added to by an application to the. High Court of Bombay. The Supreme Court, in Raje Anandrao v. Skamrao : 3SCR930 . observed that the Privy Council had not considered whether such a clause could be legally inserted in a scheme, but the fact remained that in the two schemes the Privy Council did insert a clause in each authorising its modification by an application to the High Court. The Supreme Court considered the question whether there was anything in Section 92 of the Code of Civil Procedure which militated against providing a clause in the scheme framed thereunder for its modification by an application to the Court framing the scheme. The Supreme Court held that there was nothing in Section 92 which would make it illegal for the Court to provide a clause in the scheme itself for its future modification and that Sub-section (1) of Section 92 did not bar an application for modification of a scheme in accordance with the provisions thereof provided that such a provision could be made in the scheme itself. After coming to the conclusion that, if there is a provision in the scheme itself providing for its modification an application can be made to the Court for such modification in explaining the nature of the modification, the Supreme Court proceeded to observe:
A suit under Section 92 certainly comes to an end when a decree is passed, therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the Court can settle a scheme under Section 92 (i) to prevent it from making the scheme elastic and provide for its modification in the scheme itself. That does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the modification of the scheme.
The Supreme Court generally agreed with the contention that, if the scheme was amended in pursuance of such a clause in the scheme, it would not amount to amending the decree, the result being that the decree stood as it was and that all that happened was that a part of the decree which provided for management under the scheme was being given effect to. On a reading of the decision of the Supreme Court, it is clear that, if the scheme itself provides for its modification the modification of the provisions of the scheme can be effected for the management of the trust, which does not result in the amendment of the decree.
5. So far as the present case is concerned there is no provision in the scheme providing for the amendment or modification of any of the clauses of the scheme. Therefore any application for amendment of any clause in the scheme will not be competent. What is prayed for in the application is to substitute another clause for Clause 23 in order to enable the trustee-manager to appoint a deputy for more than a period of three months at a time and for more than a total period of six months during his period of office for three years. We are satisfied that the amendment sought cannot be permitted as, firstly, there is no provisions in the scheme decree and, the amendment, if allowed, would modify the decree itself which is not permitted.
6. In this connection the learned Counsel for the appellant referred to a decision of the Bombay High Court in Gangaram Govind v. Vinchurkar I.L.R. 1947 Bom. 466. where it has been held that the Court has got powers to amend a scheme under Section 151 of the Code of Civil Procedure even in the absence of a specific clause in the scheme providing for such amendment. But in view of the decision of the Supreme Court in Raje Anandrao v. Shamrao : 3SCR930 we do not think that this is a correct statement of law. The Calcutta High Court in Chameli Bibi v. Kanhaiyalal : AIR1973Cal328 . has also taken the same view as we have taken as also Syed Khaja Gulam Rasoo v. Bijili Sahib : AIR1965Mad404 .
7. The only other question that remains to be considered is whether the appellant can have any relief under Clause 30 of the scheme decree. Though the application was not based on Clause 30, the learned Judge has gone into the question whether the application is maintainable under, Clause 30 and found against the appellant. But we feel, as the application was not based on Clause 30, the question whether any relief is available to the appellant under Clause 30 should not be gone into. Further, Clause 30 provides that the relief should be asked for in the Court of the District Judge of Ramanathapuram. If the appellant is so advised, he is at liberty to file an application under Clause 30. The respondents are at liberty to raise all objections available to them in. law.
8. With these observations, this appeal is dismissed. There will be no order as to costs.