1. This C.M.A. and C.R.P. are against the order of the lower Court dismissing an application presented under a scheme decree in A.A. Order 218 of 1925 on the file of the High Court. Under Rule 2 in that scheme, which was for the management of the Anjukoil Devasthanam, it is declared that when a vacancy occurs in the trusteeship:
the Pandara Sannadhi for the time being of Thiruvannamalai mutt shall be appointed trustee unless the District Court of Ramnad for any valid reason decides him to be unfit.
2. The late Pandara Sannadhi who was the trustee died on 10th June 1928. The petitioners applied under this rule on 25th June 1928: to the lower Court to declare respondent 1, who claimed to have succeeded as Pandara Sannadhi, to be unfit for appointment as trustee and to appoint either one of the petitioners or some other proper person to be trustee and for other reliefs. The District Judge dismissed the application, holding that Rule 2 of the scheme is ultra vires and the petitioners came up by way of appeal and revision. It is conceded that no appeal lies and the case has been argued as one in revision.
3. In the lower Court it was alleged by the petitioners, inter alia, that respondent 1 has not been lawfully appointed as Pandara Sannadhi and therefore was unfit to be a trustee. But the argument before us has proceeded on the footing that he is the Pandara Sannadhi de facto, entitled, if Rule 2 is not ultra vires, to be appointed as trustee unless otherwise found unfit, and it is urged that the petition should be reopened for enquiry as to his fitness. The respondents maintain that (1) the rule itself is ultra vires, (2) that even if it is intra vires the petitioners under the scheme have no locus standi to apply. A third point viz., that the High Court had no jurisdiction to frame a scheme at all was not pressed here.
4. To take the second objection first, the only persons to whom the scheme gives liberty to apply for directions are the trustee, the Board and the Advocate General: see Rule 13. It is not open to any person to come up under the scheme and ask for directions. If it is held that any person can come up under Rule 2 and ask for directions there is no reason why such a liberty should be restricted to that rule and not apply to any rule under the scheme, and Section 13 would become not only meaningless but misleading. I do not subscribe to the contention that the petitioners' petition is not one asking for directions. If, as is assumed by the petitioners, Rule 2 vests the power of appointment of the Pandara Sannadhi in the District Court, then clearly the petitioners are asking for directions that the Pandara Sannadhi is unfit to be the trustee and for further directions that one of them or some one else, be appointed. This point will be more fully discussed later.
5. In C.M.P. No. 5606 of 1928 a Bench of this Court consisting of the Chief Justice and myself held, in interpreting a similar scheme, that when liberty to apply is confined by a rule under the scheme to particular persons, no others have locus standi to apply, and that to permit others to apply is in effect to modify the scheme, which is not permissible in law except by suit under Section 92. I may say, however, that if Rule 2 is intra vires I see no objection to the petitioners putting in a memo of information to the District Court merely reporting the death of the Pandara Sannadhi and asking the District Court to function under Rule 2 and applying for permission to be heard when the Court is holding its enquiry as to the fitness of the succeeding Pandara Sannadhi to be trustee. But that would be a petition outside the scheme and whether it would lie in law depends on the answer to the second point whether Rule 2 is not ultra vires.
6. On this point the respondents' main argument is that the petitioners in applying for the appointment of a trustee other than the Pandara Sannadhi are asking for a relief which can only be granted by way of suit under Section 92, since the relief comes under Clause (1)(b) 'appointing a new trustee.' Petitioners contend that Section 92 will not apply to the present case since the matter is neither in relation to any breach of trust nor one in which the direction of the Court is deemed necessary for the administration of the trust. Here of course there is no matter of breach of trust. Petitioners contend that it is also not a matter of direction, since the scheme itself has provided all the directions necessary, and that they are asking only to carry out the directions of the scheme. Now the Full Bench decision in Veeraraghava Chariar v. Advocate-General, Madras A.I.R. 1927 Mad. 1073 has laid down emphatically that a scheme which goes beyond what was decided in the scheme suit, and decides matters which come within the purview of Section 92, is so far ultra vires. Rule 2, is therefore intra vires only so far as it embodies a decision in the suit and is not providing for a relief which is only obtainable by suit under Section 92. It does not in my view go beyond what was decided in the suit itself and is therefore intra vires provided it is limited to what it says and is not stretched to cover a general plenary power of appointment of trustee. Appointment under it is intra vires, if confined to appointment of the Pandara Sannadhi. It is ultra vires, if called in aid to appoint anyone else.
7. To apply the Pull Bench principles to the present case the judgment in the scheme suit gave the District Court power only to appoint the Pandara Sannadhi if not found unfit; that is, it gave the District Court power to proceed to function and either to appoint him or to refuse to appoint him on the ground that he was unfit. If he is appointed, he can only be removed by a suit under Section 92; if he is not appointed no one else can be appointed except by a similar suit. A motion to appoint some one other than the Pandara Sannadhi can therefore be made only by way of suit, and that is the motion which the petitioners moved in the lower Court.
8. The petitioners argued further that Clause 1 (b) is inseparable from Clause l(a), and that it is only in the case of the appointment of a new trustee consequent on the removal of an old one that 1 (b) applies. But I can see no ground for thus restricting the scope of the language used. We might as well hold that each different clause is thus inter-connected from (a) to (h), i.e., you cannot apply one of the clauses at all in isolation but you must apply all together or not at all. I am with great respect not prepared to accept the broad view of the Calcutta High Court in Abdul Alim v. M.T. Abir Jan : AIR1928Cal368 that the juxtaposition of Clauses (a) and (b) implies that the appointment of a new trustee must be limited to cases where it is necessary because of the removal of an old one; nor was such a proposition necessary for the decision of that case, since the general Mahomedan Law vested in the Court the Kazi's power of appointing a trustee directly, and if the Kazi could make the appointment without his having recourse to Section 92 as the law allowed him to do, so also could the Court. This is made clear in a similar case of the same Court in Mohiuddin Chowdhury v. Aminuddin Chowdhury : AIR1924Cal441 . The Privy Council case in Mahomed Ismail v. Ahmad Mooli Dawood A.I.R. 1916 P.C. 132, is on the same lines. Nothing which was intra vires of the power of the Kazi could be ultra vires of the power of the civil Court which now exercises his functions.
9. Mr. Varadachari for the respondents contends that here there is no cas,e of appointment or removal at all, because really there is no vacancy. He argues that the Pandara Sannadhi for the time being is to all intents and purposes ex officio trustee of this Devasthanam. He must base that claim not on Rule 2 of the scheme, since in his view it is ultra vires, but on the judgment under which the scheme was sanctioned, but the most that judgment says is that the Pandara Sannadhi:
has a prima facie right to be the trustee of the Devasthanam.
His right is inchoate which gets perfected by appointment of the Court and before his right can be negatived some special circumstances must be shown.
10. This to my mind does not constitute the Pandara Sannadhi ex officio trustee. There is to be an appointment by the Court. Before the Pandara Sannadhi becomes the trustee he must move the Court for his appointment, and the Court must enquire if there are any special circumstances which would render him unfit to be appointed. Obviously as the judgment has already decided that the Pandara Sannadhi shall be appointed unless unfit it is not necessary for him to sue for a declaration that he shall be appointed. The test in such a case would be, would the refusal of leave to sue under Section 92 deprive the applicant of the right already declared by a judgment of a competent Court to be his. If the answer is 'yes' then clearly Section 92 cannot apply. Here the refusal of leave to sue for appointment under Section 92 would deprive the Pandara Sannadhi of his declared right to be appointed, if not unfit. Therefore no suit by him is necessary; contrariwise the refusal to the petitioners to sue would not deprive them of any declared right. Therefore their only way of moving the Court to appoint some one else would be by suit under Section 92. If the Pandara Sannadhi does not within a reasonable time apply for appointment, then any one interested in the trust can move for the appointment of a trustee to fill the vacancy but that motion if it is a motion to appoint any one else than the Pandara Sannadhi, must be by way of suit under Section 92, Clause 1 (b).
11. I hold that there is no error of law in the lower Court's order and dismiss the C.R.P. and the C.M.A. with costs of the Pandara Sannadhi in each but only one advocate's fee.
Madhavan Nair, J.
12. The petitioners before us are two persons who claim to be the senior-most Tambirans of the Thiruvannamalai Adhinam at Kunnakudi. Purporting to act under the scheme framed by the High Court in respect of the Anjukoil Devasthanam in A.A.O. Nos. 218 and 219.of 1919 and A.A.O. No. 216 of 1925 they filed a petition before the District Court of Ramnad at Madura praying (1) that respondent 1 be declared legally unfit to be trustee of the Devasthanam on the ground of his not being a lawful Pandara Sannadhi and even otherwise be held unfit to hold office, (2) that either of the petitioners or such other proper person may be appointed as the trustee and (3) that a receiver should be appointed pending the disposal of the petition. The judgment of the High Court which incorporated the scheme agreed to by the parties to the then proceedings states that:
The head of the Mutt (i.e., Thiruvanna malai) has a prima facie right to be a trustee of the Devasthanams. His right is inchoate which gets perfected by appointment by the Court and before his right can be negatived, some special circumstances must be shown.
13. The case for the petitioners in the lower Court was that the late Pandara-Sannadhi who was the trustee of the Anjukoil Devasthanam died on 10th June 1928, that respondent 1 has been pretending that he had been appointed as 'chinnapattam' on 6th January 1928 and had become the head of the Tiruvannamalai Adhinam on the death of his predecessor, that there was no such appointment as contended for by respondent 1 and that he is immoral and unfit to hold the office of Pandara Sannadhi and therefore to be the trustee of the Devasthanam. For the purpose of the proceedings in this Court, the petitioners stated that they are willing to treat respondent 1 as the Pandara Sannadhi of the Adhinam but they say that he is unfit to be appointed trustee of the Devasthanam for the reasons mentioned in the petition. The application to the District Court was made by the petitioners under Clause 2 of the scheme which runs as follows:
When a vacancy occurs at any time hereafter in the trusteeship of the Devasthanam the Pan dara Sannadhi for the time being of the Tiruvannamalai Mutt shall be appointed trustee unless the District Court of Ramnad for any valid reason decides him to be unfit. The District Judge shall, if so requested by any party concerned, within one month from his decision, refer the matter to the High Court and the decision of the High Court shall be final.
14. Having regard to Section 92, Civil P.C., and the decision of the Full Bench in Veeraraghavachariar v. Advocate General of Madras A.I.R. 1927 Mad. 1073 the learned District Judge held that:
the provision of Clause 2 of the scheme is ultra vires and that the relief sought by the petitioners can be sought only under Section 92 of the Code.
15. He, therefore, dismissed the application. It is admitted that no appeal lies against this order and so A.A.O. No. 289 of 1928 has to be dismissed. In C.R.P. No. 12 of 1928, we are asked to say that the Court below acted without jurisdiction in summararily dismissing the petition without conducting an enquiry. In the Pull Bench decision in Veeraraghavachariar v. Advocate General of Madras A.I.R. 1927 Mad. 1073, it was decided that:
if in a decree for a scheme framed under Section 92, Civil 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 without offending Section 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 Section 92.
16. Section 92, Civil P. C, provides that in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the person mentioned in it may institute a suit and obtain a decree for any of the reliefs mentioned in Clauses (a) to (h), Sub-section (1) of which the two clauses with which we are concerned are Clauses (a) and (b) which refer to 'removing a trustee' or 'appointing a new trustee.' The substantial question for consideration is whether Clause (2) of the scheme relating to the appointment of a trustee is ultra vires as offending this section. The argument of the petitioners that the clause is not ultra vires, and that effect can be given to it without offending Section 92, has ranged over a very wide field but for purposes of discussion it may be stated somewhat in this form. Section 92 Civil P.C., applies only in two cases; either there must be an alleged breach of any express or constructive trust created for public purposes or a charitable or religious nature; or the direction of the Court must be deemed necessary for the administration of any such trust. In this case, it is conceded that there is no question of any breach of any express or constructive trust. So assuming that the reliefs prayed for fall within Clause (a) or (b) of the section, unless the direction of the Court is to be deemed necessary for the administration of the trust the section has no application. In this case the direction of the Court is obviously not for that purpose and, therefore, there is no need to resort to the procedure of a suit referred to in Section 92 for granting the reliefs prayed for by the petitioners. It would, therefore, follow that Section 92 has no application to the present petition. The petitioners' learned Counsel has also argued that the relief prayed for is for the appointment of a trustee and that Section 92 does not come into play unless the petitioners ask for the relief of removal as well as the appointment of a trustee.
17. Having regard to the various considerations urged and the decisions of the other High Courts brought to our notice, the question raised is not an easy one to decide. The argument that direction of the Court for the administration of the trust is not asked for in this case as scheme is already in existence for that purpose does not give as much help in solving the difficulty as it assumes that the scheme has been passed validly which as contended for by the respondent is the very question that we are called upon to decide. As observed by Wallace, J., in Abdul Hahim Baig v. Burramuddin : AIR1926Mad559 :
The true test as to the legal propriety of a clause in a scheme is whether the relief granted by that clause is such a relief that, if it was being sought before the scheme is sanctioned, it would have to be sought by a suit under Section 92. If it was, it cannot be granted by any sort of application under the scheme notwithstanding that the scheme itself purports to provide such means of obtaining that relief,
18. That I think, on principle, is the proper standpoint from which the question should be viewed. Otherwise, it will lead to this result. When once a scheme for the administration of a trust has been framed, Section 92 will no longer have any application and under the guise of applications under the scheme any number of applications for removing or appointing trustees without the guarantees provided for in Section 92 can be made. This will really defeat the object of Section 92. Applying the test referred to above what we have really to consider is whether the relief granted by Clause 2. of the scheme in this case is or is not a relief which would have to be sought by a suit under Section 92, Civil P.C. On this point I do not think there can be much doubt. The clause refers to the appointment of the Pandara Sannadhi for the time being of the Tiruvannamalai Mutt as the trustee of the Devasthanam when a vacancy occurs and indicates that he should be so appointed unless he is for some valid reason found unfit. The petitioners in their application, as now explained by them, say that the present Pandara Sannadhi of Tiruvannamalai Mutt is an unfit person to be appointed as the trustee and, therefore, he should not be appointed as the trustee. Both Clause 2 of the scheme and the application of the petitioners made under it refer to the appointment of the Pandara Sannadhi as the trustee of the Devasthanam, a relief which if C1.2 of the scheme did not exist could be obtained in my opinion only by filing a suit under Section 92, Civil P.C.
19. But it is argued for the petitioners that considering the history of Section 92, Clauses (a) and (b) of that section must be read together and that the section would have application only when the object of the application is the 'removal of a trustee and the appointment of another trustee.' In other words, it is argued that the section cannot come into play unless the appointment of a new trustee is dependent on removal of the old one. This view finds support in a decision of the Calcutta High Court in Abdul Alim Abed v. Abirjan Bibi : AIR1928Cal368 . The petitioners argue that this interpretation of Section 92 should be accepted and that since they did not ask for the removal of any trustee before appointing a new one the relief prayed for by them in their application under Clause 2 of the scheme does not fall within the scope of Section 92. The answer to this contention is twofold: Firstly, the view that Clauses (a) and (b) should be read together is not supported by the decisions of this Court. On the other hand, in Neti Rama Jogiah v. V enkatacharlu  26 Mad. 450, this Court held that a suit for the appointment of a new trustee for a temple on the ground that the defendants are not the lawful trustees and that the trusteeships are, therefore, vacant, is a suit under Section 539 (a), Civil P.C. Secondly, the petitioners' application in substance asks for the removal of the present Pandara Sannadhi from the trusteeship of the Devasthanam and the appointment of a proper man in his place. In view of the admission made in this Court that respondent 1 may be treated as the present Pandara Sannadhi of the Mutt and having regard to the fact that he is prima facie entitled to the trusteeship of the Devasthanam according to the judgment of this Court, the petitioners' application is not to be read as meaning that there is a vacancy in the trusteeship of the Anjukoil Devasthanam which should be filled up' by the appointment of a trustee but that it means that the present Pandara Sannadhi who is prima facie the trustee should be removed from the trusteeship of the Devasthanam and that a new one who is a proper man should be appointed in his place. A perusal of the application will bear out this interpretation of its contents. In this view, the relief prayed for by the petitioners would fall within the scope of Section 92, Civil P.C. I must, therefore, hold that Clause 2 of the scheme in question is ultra vires and hold that the relief sought by the petitioners can be sought only in a suit under Section 92 of the Code.
20. Apart from the objection that Clause 2 of the scheme is ultra vires, respondent 1 has urged another objection to the maintainability of the petitioners' application. He argues that assuming that Clause 2 is intra vires, under Clause 13 of the scheme the petitioners have no locus standi to file the application. Clause 13 is as follows:
The trustee, the Board or the Advocate General shall have liberty to apply to the District Court of Ramnad for directions generally including directions for the utilisation of surplus moneys, if any. They shall also have liberty to apply for any modification of the scheme.
21. If the petitioners purport to act under the scheme as they do then it is clear that effect should be given to Clause 13 under which right of making applications to the Court is given only to the trustee, the Board or the Advocate General; Obviously the right of making the applications has been purposely confined to the persons mentioned in this clause; for, otherwise there will be no guarantee for the bona fide nature of the applications. The petitioners not having been mentioned as persons entitled to apply under Clause 13 have in my opinion no locus standi to make the present application. It must, therefore, be dismissed on this ground also.
22. The appeal against the order and the Civil Revision Petition are dismissed with costs of respondent 1.