Ramendra Mohan Datta, J.
1. The petitioner Prem Kumar Agarwal is one of the daughters of one Jiwandas Agarwal, since deceased. Jiwandas Agarwal was one of the two trustees in respect of the trust created by one Babulal Agarwalla, deceased, by his will dated August 6, 1873 whereby he created a trust for various religious and charitable purposes including the construction of a temple at Vrindaban and a Dharamshala at Calcutta, Jiwandas, one of the joint trustees died a few months back. Since then disputes and differences arose by and between the heirs of Jiwandas, being his three daughters. The eldest son-in-law of Jiwandas by the name of Dhanpaldas Gupta, at all material time, had been and still is the other trustee in respect of the said trust for religious and charitable purposes.
1a. After the death of the said Jiwandas Agarwal, the said Dhanpaldas Gupta as the surviving trustee applied to this Court for appointment of another trustee in the place and stead of Jiwandas Agarwal, in terms of the provisions of the scheme framed herein sometime in the year 1944. A few weeks back this Court by an order appointed one Shyama Saran Agarwal as the trustee in the place and stead of the said Jiwandas Agarwal. In the said application Prem Kumari wanted her husband to be appointed as the trustee in the place and stead of her deceased father but this Court after giving her leave to intervene and after considering the facts and circumstances of the said application and in the interest of the said trust did not allow her prayer.
2. In this application Prem Kumari wants to be added as a party to this suit on the ground that she is the beneficiary under the scheme framed in 1944 whereunder the said Jiwandas was acting as one of the trustees. Under the provisions of the said Scheme of 1944 after the death of Jiwandas a sum of Rs. 250/- would be payable from out of the trust estate to each of the three daughters of Jiwandass. According to her she is entitled to apply in this suit and under the said scheme, by virtue of the clause in the final decree whereby liberty was given to the parties to apply. According to her the suit is still alive for the purpose of carrying out of the said trust,
3. Mr. Bhabra appearing on behalf of Dhanpaldas Gupta takes a preliminary point and argues that the petitioner Prem Kumari cannot be substituted in the place and stead of Jiwandass. The said place has already been filled up by appointing another trustee viz., Shyama Saran Agarwal as per order dated August 14, 1972. Accordingly, her application to be added as a party is misconceived inasmuch as the same is not warranted either by the said scheme or by the nature of the case. According to the learned counsel there is no power reserved in the scheme itself whereby the scheme can be modified in the way it is being prayed for. Such a clause is absent in the scheme. The only persons in whom the right to make any application under the said scheme has been reserved are the two trustees and no outsider has been given any liberty or power to make an application under the scheme. Mr. Bhabra contends that under the scheme Prem Kumari has no right to apply. The only right she has got in the scheme Is to get Rs. 250/- per month. If the monthly allowance is not paid to her, she will have the cause of action against the trustees and she will be able to enforce her right by filing a suit; but in this case, the trustees are not disowning that obligation which is cast on them by the said scheme of 1944 -- Had there been such a situation she could have filed a suit for recovery of that amount. There is no allegation before this Court that any amount remains unpaid to the said daughters of Jiwandass. The said total sum of Rs. 750/- is payable by the trustees in the same way as so many other expenses are payable by them every month but because of that provision they do not-become the beneficiaries under the said scheme. She may be the descendant of Jiwandass but that does not make her a beneficiary. She does not claim to be a bencficiary under the trust created by the will of Babulal. Her position is not that of the plaintiff Chameli Bibi who resides in the temple premises in Vrindaban and hence as the eldest female member of the family of Babulal, Chameli Bibi can claim to be a beneficiary under his will; but that is not the case with Prem Kumari. Accordingly, Prem Kumari has no interest under the said scheme and no liberty has been given to enable her to apply under the scheme.
4. Mr. Bhabra further contends that the present application is for the purposes which are expressly provided in Section 92 of the Code of Civil Procedure. Of course, she could have made this application if such a power was reserved under the said scheme but as a matter of fact there is no such reservation made. Furthermore, Prem Kumari being an outsider and not a party to the suit herein, she cannot avail of the power conferred by the final decree in this suit whereunder liberty to apply has been provided. That liberty to apply was so given to the parties to this suit. Hence, Prem Kumari not being a party to the suit cannot avail of the said opportunity to apply in the suit.
5. Mr. Bhabra contends that her right is not totally taken away. She has a right to proceed under Section 92 of the Code of Civil Procedure and ask for the same relief which she is seeking in this application. If the scheme as framed in 1944 has to be amended at the instance of Prem Kumari then Prem Kumari must proceed under Section 92 of the Code of Civil Procedure. There is no question of such a suit being barred by res judicata. Such a question of res judicata can arise in a subsequently instituted suit when the former suit which was adjudicated was a representative suit. In such a case such persons who would be either suing or defending the subsequently instituted suit would be so doing in their representative character and hence a decree in the former suit which was a representative suit will bind all persons interested. That is not the case before me because it does not appear that the suit herein which was filed in 1903 was so filed in a representative character.
6. Reliance was placed on the case of Ahmad Adam Sait v. M. E. Makhri, reported in AIR 1964 SC 107 where such a question was considered and it was held that the decree in the former suit could not create a bar of res judicata against persons claiming interest which was not represented in the former suit.
7. It is next contended by Mr. Bhabra that the scheme of 1944 empowered the trustees only, to make an application before the Court for certain limited directions as provided therein. The Court in an administration suit retains in it the full control over the administration of the public trust and in course of such administration frames the scheme. The scheme as framed is the Court's scheme. The Court in its wisdom has thought fit that only the trustees should be vested with powers to apply from time to time under certain conditions mentioned in the scheme. It may be that the trust before this Court is for public charitable and religious purposes but that does not mean that anybody other than the trustees can make an application under the scheme when such right has not been given to an outsider Other than the trustees.
8. Mr. Jain, on the other hand, contends that for the interest of the trust the Court can always entertain an application from an outsider or by any person who is not a trustee even though the scheme does not contain any such provision. It is contended following the case of M. L Kadri v. Khubmiya Mahomedmiya, reported in AIR 1931 Bom .388 that such a clause is implied. In the case of Gangaram Govind Pashankar v. K. R. Vinchurkar, reported in AIR 1948 Bom 146 = ILR (1947) Bom 466 it is held that the High Court has inherent power to modify the scheme even though the scheme does not provide for such a clause if a proper case is made out. According to Mr. Jain the nature of the 1903 suit was such that it became a suit of a representative character. It is the substance and not the form of the suit that has to be looked into.
9. The present suit was filed in 1903 i.e., before the Code of 1908 came into force, It is contended that the said suit of 1903 was in substance filed under the then Section 539 of the Code of 1882 and that would appear from the nature of the pleading and the reliefs claimed therein. The said provision viz.. Section 539 of the Code of 1882 was similar to the present Section 92 of the Code of 1908 with slight difference viz., that under the Code of 1908 if the suit is instituted without the consent in writing of the Advocate-General or District Judge, as the case might be, then such a suit would be misconceived under Sub-section (2) of Section 92 thereof. Under the Code of 1882 such Sub-section (2) of the present Code of 1908 was not there and accordingly a suit under Section 539 was optional. In other words, the forms prescribed thereunder might or might not have been strictly followed. It is contended that even though the suit herein was originally filed by only one plaintiff viz., one Amrita Bibi yet the nature of the suit and the reliefs claimed therein made it a suit of a representative character. A scheme was framed by the preliminary decree and the said decree were passed with a view to administering the said estate of Babulal Agarwalla. Accordingly, even though the plaint was not filed by two or more plaintiffs or strictly in accordance with the provisions of the then said Section 539 of the Code of 1882 yet it became a suit of a representative character for all purposes. It is significant that various schemes have been framed under this suit of 1903 and various amendments have been effected in such schemes as and when they were thought necessary to be amended. The last of such amendment took place sometime in 1970.
10. One of the main questions which is argued for my determination is whether the suit herein of 1903 was a suit of a representative character. It is conceded that a suit under the then Section 539 of the Code of 1882 or under the present Section 92 of the Code of 1908 would be a suit filed in a representative character if the formalities prescribed thereunder are complied with.
11. The suit as filed in 1903 was so filed only by Amrita Bibi. She was the only plaintiff in that suit but Section 539 required that there must be two or more plaintiffs. The original plaint as filed in 1903 has been produced before me and the correct position as appears therefrom is that Amrita Bibi was the only plaintiff in that suit. The reliefs claimed therein such as, for framing a scheme and for administration of the estate were similar to those of a suit of a representative character but unless the other formalities as provided under Section 539 would be complied with, the said suit could not be called a suit of a representative charater. It is true that at that time there was nothing in Section 539 whereby the non-compliance of the provisions of Section 539 would render the suit invalid as is provided by Sub-section (2) of the present Section 92 of the Code of 1908, yet to make it a suit of a representative character it had to be filed by two or more persons with the consent of the then Advocate-General of the State. If the suit had been filed by Amrita Bibi that would suggest that she was seeking her personal relief and did not in any way concern herself with other persons who might be interested in the said trust. No other person even if he had intended to, could have come in and prayed for being added as a party to that suit because the suit so filed was the suit of the plaintiff alone. If the suit had been dismissed for any reason then it could not be said that the subsequent suit by some other person would be res judicata as against such other persons who were not parties to the former suit, which stood dismissed. The fact that the trust created by the will of the said Babulal Agarwalla was for public charitable and religious purpose yet the said fact by itself will not make the suit a suit of a representative character when it has been, filed by only one person and therefore not in compliance with the provisions of the then Section 539 of the Code of 1882.
12. That being the position, I hold that the suit filed in 1903 herein was not a suit of a representative character and accordingly, Prem Kumari cannot ask to be added as a party to the suit under Order 1, Rule 10 of the Civil Procedure Code which she could have otherwise prayed for had, it been a suit of a representative character.
13. The next point for my consideration is whether the liberty to apply which was provided in the final decree passed in the said suit of 1903 could be taken advantage of by Prem Kumari in making this application before this Court. In my opinion, that liberty to apply should be confined to the parties to the suit or to the parties who are successors-in-interest to the parties to the suit As stated hereinabove, Prem Kumari does not claim to be a descendant of Babulal. Her claim is that she is the descendant of Jiwandass who was the a few months back one of the joint trustees to the trust created by the said Babulal Agarwalla, deceased.
14. It follows therefore that the scheme as framed in 1944 has to be looked into to find out whether Prem Kumari can apply under the scheme in terms thereof. It is argued by Mr. Jain, as indicated herein-above, that even though there is no such clause in the scheme itself providing for modification of the scheme yet such a clause should be deemed to be implied in every scheme which is for public religious and charitable purposes. In my opinion, while it is desirable that in every scheme such a clause should be provided so that as' and when the scheme has to be modified, on a proper case being made out, the same might be done by any person who would be interested in the scheme or in the trust itself by making an application under the scheme without taking recourse to a fresh suit, yet in the absence of such a clause, the scheme cannot be modified by means of an application in the scheme itself. The fresh suit under such circumstances might mean following up the cumbrous procedure as is provided under Section 92 of the Code of Civil Procedure 1908 but when such a clause is not to be found in the scheme itself the Court should not, at this stage, insert such a clause for the purpose of giving the right to apply to any person interested in the scheme or in the said trust. At the time when the said scheme was framed the Court in its wisdom thought fit that such powers should not be conferred on the public in general so that every now and then no such applications could be made for modification of the scheme without taking recourse to a fresh suit under Section 92 of the Code of Civil Procedure, 1908.
15. Mr. Jain has referred to the case of Prayaga Doss Jee Varu v. Tirumala Anandam Pillai Purisa Sriranga Charylu Varu, reported in (1907) 34 Ind App 78 and has drawn my attention to the scheme which was settled by the Judicial Committee of the Privy Council by Inserting such a clause relating to modification of the scheme. The said clauses were to the following effect:--
'10. Liberty for the vicharanakartha and any person interested to apply to the District Court with reference to the carrying out of the direction of this scheme.
11. Liberty for the vicharanakartha and any person interested from time to time apply to the High Court for any modification of this scheme that may appear to be necessary or convenient.'
Mr. Jain contends that the scheme which was settled by the Judicial Committee contained the aforesaid modification clauses which were originally not there in the previous scheme under which the temples were being managed. According to Mr. Jain the Court has always the power to insert such clauses to enable any member of the public to apply for modification of the scheme. It will appear from the facts of the said case that the suit was brought with the consent of the Advocate-General of Madras under the then Section 539 of the Code of 1882 and the relief sought was for settling the scheme for the management of the temples with such modification under the organisation of the managing authorities as might be necessary to obviate the evils referred to in the plaint and to place the administration of the temples on a satisfactory footing. It was not disputed in that case that a scheme was necessary. The question was what should be the details of the scheme. After considering the facts and circumstances of that case their Lordships of the Judicial Committee settled the said scheme. I do not see how this case can help Mr. Jain in this case.
16. It is not disputed by Mr. Bhabra that such a scheme containing such modification clauses can be framed by the Court by its decree; but what is objected to is that when such modification clause is not to be found in the scheme itself, the same cannot be inserted by the Court unless a properly instituted suit of a representative character is before the Court for framing a scheme containing such modification clause. In my opinion, the very fact that the Judicial Committee of the Privy Council thought fit to insert such clauses in the scheme itself shows the importance of such clauses in the Scheme and also suggests that the absence of such a clause will debar a person to ask for modification of the scheme by means of the application under the scheme and he has to seek his remedy by the ordinary process as provided by the code.
17. Mr. Jain has also referred to the case reported in AIR 1931 Bom 388 and contends that any member of the public can apply under the scheme for modification of the scheme even though the scheme may not provide any such clause giving such right to apply for modification if he can satisfy the Court that in the interest of the trust such an application is necessary. In that case also the existing scheme contained a clause which ran as follows:--
'6. These rules shall be subject to such modifications or additions as this Court may from time to time see fit to make.'
On the strength of that clause an application was made by the committee appointed by the Government to manage the Mussalman wakf properties in Ahmedabad City for the removal of the trustees of the mosque. It was held that such an application did not lie without the consent of the Collector or the Advocate-General and further that since the applicants were not the parties to the suit they had no right to apply for a modification of the scheme. The same Bench of the Bombay High Court following its earlier judgment in the case of Chandraprasad Ramprasad v. Jinabharthi Narayanbharthi, also reported in AIR 1931 Bom 391 held that the rub in the scheme giving liberty to apply for a modification of the scheme was not ultra vires, and that where such a rule giving liberty to apply exists, it would be permissible to make an application for the modification of the scheme without the consent of the Advocate-General. The said Bench also held that the proper remedy for the applicants was to make an application to the lower Court to bring them on the record under Order 1, Rule 10 of the Code on the ground that they were really parties to the representative suit by the very fact of its having been instituted on behalf of all persons interested in the trust.
18. In the said case of Chandraprasad Ramprasad v. Jinabharthi, Clause 28 of the scheme contained provisions for making an application, for modifying or altering the scheme by any interested person. In those cases the respective scheme contained the clauses giving liberty to apply for modification of the scheme and such schemes were decreed in a properly instituted representative suit. The said suits were instituted in a representative character and there was no question of inserting a clause at such subsequent state in the scheme itself by giving liberty to apply for modification of the scheme. What was mainly decided was that on the basis of such a modification clause an application was competent and further a suit was not necessary to be instituted and if such an application was made under such a modification clause then the further consent of the Advocate-General or the Collector was not necessary. Regarding the point that any person interested in the trust has the right to be joined as a party and to apply, in my opinion, such prayer may be made only when the suit, in which the scheme was framed, was a representative suit. In my opinion, these two cases also do not support Mr. Jain's contention.
19. Mr. Jain next cites the case reported in AIR 1948 Bom 146 and on the basis of the said decision contends that the High Court has inherent power to modify the scheme under Section 151 on an application in that respect even if the scheme did not provide for liberty to apply for its modification, on proper cause being shown. This case has also been reported in AIR 1948 Bom 146 = ILR (1947) Bom 466. At p. 467 at the top a brief summary of the facts have been noted. It was a suit under Section 92 and a relation made the application. The Division Bench of the Bombay High Court in this case examined several other cases but was not quite satisfied about the said authorities because the said decisions did not make any reference to the provisions of Order 20, Rule 3 of the Code of Civil Procedure. Ultimately, they decided the point with the following observations aonearing at p. 148:
'We think that in view of the various authorities which have held that the Court has inherent power to alter its own scheme even in the absence of a clause to that effect in the scheme and of the undoubted practice in England by which in a proper case a Court would always be prepared to alter its own scheme, we too ought to hold that the Court has an inherent power under Section 151 to alter its scheme on proper cause being shown and for the purposes mentioned in Section 151, namely the doing of justice and the prevention of abuse of the process of the Court.'
It is clear therefore that it is only in an exceptional case that such a power of the Court was exercised. In other words the Court should be extremely cautious to exercise such a power under Section 151 of the Code of Civil Procedure.
20. In my opinion, if the Court passes a decree whereby a scheme is settled and f in the scheme the liberty to apply for modification is not provided, the suit comes to an end. The modification clause makes a scheme elastic. It reserves in it powers to make it elastic and to amend or modify it as and when occasion arises but if no such power is reserved at the time of the framing of the Scheme then nothing can be done under that scheme by an application and under such circumstances, a fresh suit is contemplated under Section 92 of the Code of Civil Procedure after complying with the formalities prescribed therein. The modification clause cannot be inserted at a later point of time by making an application to that effect, because that will be effect seek to revive the suit which has already come to an end. It comes to this that unless by the decree the power is reserved in the scheme itself at the time of the passing of the decree such power cannot be inserted in the scheme itself at any subsequent period of time. In such event, another scheme and another decree is necessary to provide the alteration or modification clause in the scheme. The Privy Council in the case reported in (1907) 34 Ind App 78 inserted such clauses in the scheme framed by their Lordships not at a subsequent stage but at a time when the suit under Section 92 came up before them on appeal.
21. I shall now examine the Supreme Court cases on this point cited to me from the bar. In the case of Raje Anandrao v. Shamrao, reported in : 3SCR930 the Supreme Court held that such modification could be made by an application under the relevant clause of the scheme. In the case before the Supreme Court such a clause giving liberty, to apply for modification of the scheme already existed. It was not a ease where the question was whether such a clause could be inserted in the scheme at a later stage or not, as is the case before me. It is specifically made clear by their Lordships of the Supreme Court that the main question which arose before them was how far it was open to a Court to amend a scheme once framed under Section 92 of the Code of Civil Procedure, where a power to amend the scheme was reserved in the scheme itself. Accordingly, the question which has arisen before me has not been decided by the Supreme Court in that case. In deciding that case the Supreme Court has taken note of the fact that the Privy Council in several cases framed schemes by actually inserting such a clause giving liberty to any person interested to apply to the High Court for any modification of the scheme that might appear to be necessary or convenient without deciding whether such a clause could be legally inserted therein or not. The Supreme Court also took note of the Bombay case reported in AIR 1948 Bom 146 = ILR (1947) Bom. 466 which was decided under extreme circumstances to meet the ends of justice. In my opinion, this case also does not help Mr. Jain and the observations of the Supreme Court go to suggest that if such a clause would be found absent in the scheme itself then the only remedy left open is to file a suit under Section 92 of the Code of Civil Procedure and however cumbrous the procedure might be for instituting a suit under Section 92 of the Code of Civil Procedure, the same have got to be taken recourse to.
22. As to what is the effect of a decree for scheme passed in a suit under S. 92 has been considered by the Supreme Court in the above case in the following passage appearing at page 1210:
'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 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. We cannot agree that if the scheme is amended in pursuance of such a clause in the scheme it will amount to amending the decree. The decree stands as it was, and all that happens is that a part of the decree which provides for management under the scheme is being given effect to. It seems to us both appropriate and convenient that a scheme should contain a provision for its modification, as that would provide a speedier remedy for modification of the manner of administration when circumstances arise calling for such modification than through the cumbrous procedure of a suit.' It follows from the above observation that unless such a clause reserving the right to apply for modification would be provided in the scheme itself the decree sanctioning the said scheme would be deemed to have attained finality. If without such a clause the scheme is sought to be amended that would amount to amending the decree which the Court is not competent to do at this stage.
23. The argument that such a clause giving liberty to amend the scheme would be deemed to be implied in every scheme, in my opinion, cannot hold good as otherwise there would not have been any necessity for the Supreme Court to deal with this question in such a specific way and instead the Supreme Court could have dealt with the matter generally by implying such a clause in every scheme. Mr. Jain has referred to me the case of Sakharam Daji Ganpule v. Ganu Raghu Gurao, reported in AIR 1921 Bom 297 to support his argument that such a reservation in the scheme can always be implied. The suit in that case was originally instituted in 1889 under Section 539 of the then the Code of Civil Procedure. In that case the power of the Court to modify the scheme proceeded on a concession made by the respective lawyers and that was how the following observation was made; 'though no liberty to apply is reserved under the scheme, such a reservation can always be implied.' At p. 300 where the said observation has been made the following passage appears:--
'It has been accepted before us at the Bar that it is open to any one interested in this fund to apply to the District Court which framed the scheme to supplement or modify the same. It is not suggested that a separate suit under Section 92 is necessary.' In any event, no reasons have been given for the observation that such a clause is implied. With respect I should proceed on the basis that the above observation was purely obiter dictum and was the result of a concession made by the parties that there was a right to apply, and further that the observation was made without giving any reason why such a clause could be implied.
24. The next case which was cited to me by Mr. Jain is the case of Manadananda Jha v. Tarakananda Jha Panda, reported in ATR 1924 Cal 330. That was also a suit which was instituted under Section 539 of the Code of Civil Procedure of 1882 with the consent of the then Advocate-General for the removal of the high priest of the Baidyanath Temple and for the settlement of the scheme for the management of the institution. The suit was decreed, the high priest was ordered to be removed from his office and a scheme was drawn up for the management of the institution in future. Of the two appeals preferred from the said decree one was dismissed and the other was allowed. The decree of the District Judge was modified at his instance, but in the decretal order which was drawn up in this Court the precise variation was not specified. The Appeal Court proceeded to insert two clauses in the original decree in the same line as the Privy Council did in the case reported in (1907) 34 Ind App 78. The result was that liberty was given to any person who might be interested in the scheme to make an application to the proper Court. Accordingly, this case also cannot be of any help to Mr. Jain.
25. Mr. Jain next contends that if at tills stags Prem Kumari would proceed trades Section 92 of the Code of Civil Procedure then the suit to be filed herein would be barred by res judicata. I have already come to the finding on the facts of this case that the suit as originally filed in 1903 was not so filed under the then Section 539 of the Code of Civil Procedure of 1882. Under that section also is was necessary for at least two persons with the sanction of the Advocate-General to file a suit. It appears that the said provisions had not been complied with. It is true that from time to time various schemes have been framed and amendments have been effected thereof but since the point has been specifically taken before me I am bound to hold on the materials before me that the suit could not be said to be a suit of a representative character. If such a suit had been dismissed the same could not operate as res judicata, to any subsequently instituted suit under the said provisions of Section 539 of the 1882 Code or Section 92 of the Code of 1908. There is no indication in the plaint which was filed in 1903 that Sm. Amrita Bibi as the plaintiff therein filed the said suit in a representative capacity. In any event, if the statutory requirement had not been complied with, it could not be a representative suit. The suit was filed by Sm. Amrita Bibi in her own right. There is no indication anywhere that the same was filed with the consent of the then Advocate-General. Accordingly. Prem Kumari not being a party to the 1903 suit the bar of res judicata cannot operate against her. The suit as it stands now bears the name of Chameli Bibi as the plaintiff but Chameli Bibi does not profess to act in a representative capacity. Neither Amrita Bibi nor Chameli Bibi ever represented any class of people. In this connection the case reported in ATR 1964 SC 107 was cited to me. In that case the Supreme Court considered the question of res judicata in a subsequently instituted suit under Section 92 of the Code of Civil Procedure. In the case before the Supreme Court the previously instituted suit proceeded on the narrow and specific ground that the Mosque in question belonged to the Cutchi Memos Community. In the plaint the averment was that the Mosque had been mainly fnundsd by the Cutchi Memon Mohammedans residing at Bangalore, It was clear, therefore, that the suit was instituted by persons who belonged to Cutchi Memon Community and on behalf of the said Community only. It was held that the plaintiff in that suit did not claim and in fact did not represent the interest of any non-Cutchi Memon Community. Those who filed the suit expressly pleaded that no other community was concerned or interested in the said Mosque. Accordingly, it was held that the decree in the suit could not create a bar of res judicata against persons claiming interest not represented in the suit It was held in that case that even after a scheme would be framed in a suit properly instituted under Section 92, if supervening consideration would justify its alteration or modification, the bar of res judicata could not then be pleaded against such alteration or modification. At page 114 the Supreme Court observed:
'If the decree was passed in a suit under Section 92, it will become necessary to examine the plaint in order to decide in what character the plaintiff had sued and what interests they had claimed.'
After examining the plaint in the earlier suit the Supreme Court found that the interests of the non-Cutchi Memon Community had not been represented therein and thus negatived the contention relating to res judicata.
26. After considering all those authorities it appears that there are various difficulties which stand in the way of Prem Kumari's asking for any of the various reliefs she has claimed in this application. In my opinion, this being not a suit of a representative character the application by Prem Kumari to be substituted in the place and stead of her father along with her other sisters cannot succeed. Her father Jiwandass was made a party to this suit in the capacity as a trustee. After his death that position has been filled up by appointing another trustee by the name of Shyama Saran Agarwal and by adding him a party defendant to this suit in the place and stead of the said Jiwandass Agarwal. It is true that Prem Kumari has some beneficial interest in the sense that she has a claim under the scheme of 1944 inasmuch as after the death of Jiwandass the sum of Rs. 750/- payable to Jiwandass was to be divided into three parts and a sum of Rupees 250/- would be payable to Prem Kumari but on that basis she might at best claim to be interested in the trust as a beneficiary but that is not her application here. She wants to be added as a party defendant by way of substitution in the place and stead of Jiwandass. This, to my mind, she is not entitled to. If she has a claim for non-payment of the monthly sum of Rs. 250/- in her share she can institute a separate proceeding against the trustees to recover the same. For that purpose, she cannot claim to be added as a party to this proceeding. It is recorded that the parties admit that no amount is due from the trustees to her in respect of the said monthly sum of Rs. 250/-.
27. In the next place as alrendy indicated, there being no clause giving liberty to modify the scheme and my finding being that the suit herein is not a suit of a representative character. Prem Kumari as a member of the public cannot be entitled to ask for being added as a party to this suit. The trust being a charitable trust she is entitled to file another suit under Section 92 of the Code of Civil Procedure to seek her relief, if any, against the trustees or for the beneficial management of the trust.
28. Lastly, Prem Kumari not being a parry to the suit cannot seek any relief under the 'liberty to apply' clause as was provided in the final decree in the suit filed herein in 1903. Such final decree was passed on September 17, 1908.
29. It appears that the scheme which was annexed to the decree dated September 17, 1908 did not contain any direction for modification of the scheme. The liberty to apply was provided only in the final decree. No liberty was given either to the parties or to the trustees in that scheme. That was the position in 1908. There was another scheme which was confirmed by another decree dated November 17, 1919. In that scheme the trustees were given liberty to apply to this Court, from time to time, as occasioned might arise, for direction regarding any matter connected with the said estate or the trust contained in the said will or any matter dealing with the said scheme. For the first time that power was conferred upon the trustees. Thereafter, on June 10, 1929 another order was made sanctioning the scheme and Clause 31 thereof provided the same remedy to the trustees only and not to the parties. The trustees made another application on which the 1944 scheme was ultimately framed. The last scheme was made and sanctioned by the order dated August 16, 1944.
30. It appears that in this scheme express liberty has been granted for some limited purposes to the trustees only. I have examined the clauses in the scheme but I have not found out any such clause whereby anybody other than the trustees have been given power to apply under the scheme. Such liberties have been given to the trustees for certain specific purposes only. Accordingly any person who is interested to come before this Court cannot come under the said scheme but has to seek his relief by a fresh suit under Section 92 of the Code of Civil Procedure. In my opinion, in giving liberty to the trustees only, the Court must have intended, at that time, that it would not be beneficial for the proper management of the said trust if the trustees would be involved in litigation every now and then by any number of applications which would be made under the said scheme. It must be that the Court thought that under the said scheme the trustees alone would make the necessary application as provided therein.
31. For all these reasons, in my opinion, the preliminary point taken by Mr. Bhabra succeeds and the application of Prem Kumari must be held to be misconceived. Accordingly, I do not think that I should be justified in recording my findings regarding the merits of this case but I should only observe that considering the extent of the properties and the large number of charities and charitable purposes which are involved under the trust and the number of years which have passed by, since the framing of the last scheme, it is always desirable that the functioning of trust under the said scheme should be reviewed and, if thought fit, the scheme might be modified in the manner as the Court might think fit and proper after going into the merits of this case in a properly instituted suit
32. It is recorded that Dr. Das on behalf of the Chameli Bibi and Mr. P. K. Roy on behalf of the youngest sister, Kusum Kumari supported Mr. Bhabra in this application.
33. The application is, accordingly, dismissed but in the facts and circumstances of this case I make no order as to costs. Certified for two counsel as against the respective parties. Interim orders passed herein are vacated.