1. These three appeals arise out of three suits between the same parties which were tried together and disposed of by the learned District Judge of Vizagapatam by a common judgment dated 11-12-1947. The appellant was the defendant in all the three suits; the respondent, the Collector of Vizagapatam, was the plaintiff. The appellant is the widow of one Perla Ramamurthi Chetty, who died on 2-11-1918, leaving behind him his widow, the appellant, and a daughter, and, also his last will and testament dated 1-11-1918. In and by this will, he appointed the appellant as the sole executrix. In these appeals, we are only concerned with three clauses in the will which contain certain charitable bequests. They are as follows:
"1. Out of my property Rs. 50,000 worth immoveable property i.e., lands fetching Rs. 2000 annually should be allotted to the choultry run by me as an endowment. A proper trust deed should be executed to my wife. From the income of these lands, the aforesaid choultry should be properly run as is being done by me hereinafter permanently. The house and Dabarakotulu should be dedicated to the choultry permanently.
2. Out of my property a sum of Rs. 25,000 should be spent for acquiring a site near the railway station and a rest house should be built for the travellers.
3. Out of my property a sum of Rs. 25,000 should be spent for starting school for industrial education or by giving scholarships for encouraging such education."
Though the defendant-appellant entered upon her duties as executrix under the will, it is common ground that the bequests of Rs. 50,000/-, Rs. 25,000 and Rs. 25,000 to the three charitable objects have not been given effect to, by payment of the monies or otherwise. The appellant states that she has been properly running the choultry, and her counsel has stated before us that the house and Dabarakotlu may be declared to be dedicated to the said choultry.
2. In O. S. No. 2 of 1944 on the file of the District Judge of Vizagapatam, which was a suit filed by one Perla Satteyya Chetti who claimed to be the adopted son of the deceased Perla Ramamurthi Chetty against the appellant and certain others for an account of their management of the properties left by h:'s adoptive father during his minority, the learned District Judge referring to the charitable bequests above mentioned made certain remarks which were responsible for the institution of the present suits. The learned Judge said:
"I have purposely reproduced the terms of the will to show that in regard to one lakh of rupees provided for public charities the plaintiff and defendants have been successfully managing to avoid giving effect to the terms of the will .....Therefore a copy of this judgment will be forwarded to the District Collector, Vizagapatam with a direction to take action under Section 92, Civil P. C., in consultation with the Government Pleader who is incidentally, the advocate for defendant 1 & who in his capacity as Government Pleader states at the Bar that this Is the proper procedure in regard to these unexecuted public charities."
3. The Collector of Vizagapatam thereupon instituted the three suits out of which these appeals arise in the District Court of Vizagapatam under Sections 92 and 93, C.P.C. O. S. No. 18 of 1946 related to the bequest of Rs. 25,000 for an industrial school, O. S. No. 20 of 1946 related to the bequest of Rs. 25,000 for building a rest house near the railway station, and O. S. No. 19 of 1946 related to the bequest of Rs. 50,000 for the maintenance of the choultry founded by the testator. The three plaints contained similar allegations, namely, that the appellant who must be deemed to be a specific trustee for the public trusts and charities under the will did not give effect to, or carry out, the same and has thus violated the objects of the trust. The prayer in each of the suits was for a decree directing the defendant to pay the respective sums of money bequeathed to the three charities to the plaintiff, the Collector, or to the trustees appointed as per the scheme to be settled by the Court for giving effect to the testator's directions in regard to the utilisation of the amount. The plaintiff also specifically prayed for the framing of a scheme for the management of the respective trusts.
4. The main plea in defence was that the suits were not maintainable because the administration of the estate has not been completed and therefore there were no completed trusts which could Justify action under Section 92, C. P.C.
The learned District Judge overruled the objections raised by the appellant and proceeded to frame a scheme for the administration of the three different trusts. In the decrees which he passed in each of the three suits, we find a clause directing the defendant-appellant to pay the monies or to allot and to convey the properties in accordance with the provisions in the will relating to the respective trusts. The scheme contains provisions for the administration of the trust including the appointment of three trustees.
5. On behalf of the defendant-appellant, Mr. Somasundaram her learned counsel, contended that the suits were entirely misconceived and that as there were no completed trusts in existence and as there was no allegation of any breach of trust on the part of the appellant as a trustee, a suit under Section 92, C.P.C. was not maintainable-He relied on Section 332, Succession Act in support of his contention that the trusts had not become complete, because the executrix had not consented to the legacies in favour of the trusts. According to him before a suit under Section 92 could be filed, it was necessary that there should be an administration suit in which a distribution of the estate among the several legatees in pursuance of the directions contained in the will was finally made. He cited to us a decision of a Division Bench of this court in -- 'Annavarapu Nacharamma v. Venkatapayya', 16 Mad L. W. 922 (A). That related to a suit brought under Section 92, C. P. C., in which there was a prayer for the removal of the defendant from the office of trustee. The defence was that though provision had been made in the will of the deceased of which the defendant was the executrix for the constitution of the trusts, it turned out on administration that there were not sufficient assets, and therefore there was no trust in respect of which a suit under Section 92 would lie. It was this plea of the defendant that was upheld by the learned Judges of this Court. The learned Judges held that though the will of the deceased bequeathed a legacy for the constitution of a trust, the proper procedure to enforce the provisions of the will was a suit for administration. The suit was therefore held to be misconceived and therefore it was dismissed. In our opinion, the scope of this decision is very limited. It can only be authority for this position, namely, that in a suit brought under Section 92, C.P.C. the defendant who happened to be the executrix under a will cannot be made to give effect to the provisions of the will of which she is the executrix. We do not think that this decision should be treated as authority for the wider proposition that it is always necessary that a suit for administration should precede a suit under Section 92, C. P.C. say for the framing of a scheme in respect of a trust in whose favour there is a bequest in a will. This position is made clear in a latter decision of a Division Bench in -- 'Venkatanarasimha Rao v. Subbarao', AIR 1923 Mad 376 (B). In that case, the testator provided that a sum of Rs. 400 should be spent every year out of his estate for the spread of the Sanskrit language or for the spread of the Hindu Religion or for both. The said amount was charged on the estate, & the executors were enjoined to have the charitable objects carried into effect as the then existing trustees of Rajahmundry Hindu Samaj may deem fit. The executors appointed under the will declined office. The testator's widow adopted a son who took possession of the estate left by the deceased testator. The trustees of the Hindu Samaj having obtained sanction of the Advocate-General instituted a suit under Section 92, C. P. C., against the adopted son praying that the Court may frame a scheme for the administration of the trust and for appointment of trustees and for other ancillary reliefs. Various pleas were raised by the defendant, but we are concerned with the plea that the suit was premature and not therefore maintainable, because the trust had not been completed. The learned Judges, Spencer and Devadoss JJ. overruled this plea. It was held that it was not necessary that for every suit under Section 92, C. P. C., there must necessarily be a trustee who could be sued as a defendant and that if a trust had been created for public purposes of a charitable or religious nature under a will, a suit would lie for settling a scheme where the direction of the Court is deemed necessary for the administration of such trust and the person who is in possession of the property would be a proper party to the suit. Devadoss J. dealt (with the decision in -- 16 Mad L. W. 928 (A)-, discussed by us earlier in this judgment, and refused to accept the contention that the decision therein supported a wide proposition that an administration suit was necessary before the trust could be the subject of a suit under Section 92. The learned Judge however went on to observe as follows:
"If the circumstances are such that the intervention of the Court is deemed necessary for the purpose of framing a scheme for any trust which is proved to exist, the Court has jurisdiction to frame a scheme. No doubt the defendant in this suit could not be made to pay amount due or to surrender the property, if any, belonging to the trust he being a stranger to the trust. On the framing of a scheme and on the appointment of trustees, he should be proceeded against by the trustees for such reliefs as they may deem fit..... In this sense, no doubt, the suit against the defendant is unsustainable, taut the suit is perfectly competent for the purpose of enabling the Court to frame a scheme in respect of the charitable bequest contained in the will, provided the bequest fulfils other conditions."
These observations are apposite to the present case. Mr. Somasundaram learned counsel for the appellant, conceded that the bequests are not invalid on any ground. They are certainly for public and charitable purposes. It is obvious from the circumstances already narrated that the intervention of the Court is necessary for the purpose of framing a scheme for the administration of the trusts contemplated by the testator. There can therefore be no legal objection whatever to the framing of the scheme as such. We have perused the scheme framed by the learned District Judge covering the three trusts mentioned in the will, and we are in general agreement with the provisions contained therein.
6. What the learned District Judge did after framing the scheme was to direct the defendant-appellant in O. S. No. 18 of 1946 to pay to the trustees appointed under the scheme a sum of Rs. 25,000 together with subsequent interest at 6 per cent, per annum till the date of payment and in O. S. No. 30 of 1946 to pay a similar sum of Rs. 25,000 with subsequent interest at 6 per cent, per annum and in O. S. No. 19 of 1946 to allot and convey to the trustees appointed under the scheme immoveable properties of the value of Rs. 50,000 and yielding a net annual income of Rs. 2000 from out of the properties which were set-out in the plaint schedule A or from the other immoveable properties of the late Ramamurthi Chettigaru and also the house and Debarakotlu described in the plaint schedule B. From what we have said above, it follows that these clauses in the decree should be deleted, except that part of the clause in O. S. No. 19 of 1946 which provides for the conveyance of the house and Debarakotlu described in the plaint schedule B, therein, to the trustees appointed under the scheme. Indeed, the learned counsel for the appellant has no objection to the decree in this respect being affirmed. We may add by way of abundant caution that the mention of the trust properties in Clause 2 of the scheme shall not be taken to imply an obligation on the part of the defendant-appellant to pay the sums of money or to allot the properties of the value mentioned therein. The trustees who will be appointed under the scheme will be at liberty to take such steps as they are advised to recover' what has declared to be the trust property from the persons in possession of the estate of the late Ramamurthi including the defendant-appellant, the executrix. We are not concerned in this suit under Section 92 to find out if there is enough money left in the estate to make the several payments and allot the properties as directed in the will. In these suits, under Section 92, all that we can do is to frame scheme for the administration of what undoubtedly are public charitable trusts.
7. We wish to make only one amendment in the scheme. Clause 6 of the scheme provides as follows:
"The trustees shall elect one among themselves as Chairman of the Committee."
For this clause, the following clause will be substituted:
"The Chairman of the Municipal Council, Vizagapatam, for the time being, shall be the chairman of the Committee."
We have made this alteration in the interests of the harmonious working of the committee of trustees, as election is likely to lead to disputes among the trustees.
8. In the result, the three appeals are allowed to the extent and in the manner indicated above, and are dismissed otherwise. Costs of both parties will come out of the estate of the deceased testator (advocate's fee in all the three appeals Rs. 500/-.)