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Govindaswami Naidu v. Uchappa Goundan

Madras High Court

Dec 20, 1921

Judgment

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Structured Summary of the Provided Opinion

Factual and Procedural Background

This opinion arises from a second appeal and a memorandum of objections connected to earlier litigation concerning the management of a temple trust (Original Suit No. 39 of 1909 in the District Court, Coimbatore). In the earlier litigation the District Court was asked to frame a scheme for management of the trust; the District Court gave directions to the trustee to maintain and file accounts, and on appeal the High Court modified the decree by declaring nine shops to belong to the temple while otherwise confirming the lower decree. The present proceedings include:

a second appeal attacking the maintainability of a later suit that seeks a scheme of management (the appellant contends this seeks to modify a previously settled scheme), and challenging jurisdiction of subordinate courts to alter a court-framed scheme; and
a memorandum of objections to a decree in Appeal Suit No. 175 of 1919 that challenges the refusal to remove the second defendant from trusteeship (the memorandum was raised in the context of related appeals: Appeal Suit Nos. 174 and 175 of 1919).

The Sub-Court of Coimbatore is noted to be empowered to try suits under Section 92, Civil Procedure Code. The court ultimately dismisses the second appeal and dismisses the memorandum of objections, with costs, for the reasons explained below.

Legal Issues Presented

Whether the present suit is maintainable insofar as it seeks a scheme of management for trust properties where, according to the appellant, a scheme had already been settled in prior litigation and appeal.
Whether the Subordinate Court (Sub-Court) had jurisdiction to alter or modify a scheme embodied in the decree of the District Court (i.e., whether an inferior court may alter a scheme framed under a superior court's decree).
If a change in an existing court-framed scheme is required, whether the proper procedure is to move the court that framed the scheme by petition (rather than filing a fresh suit in a Subordinate Court).
Whether the respondents (in the second appeal) were competent to file a memorandum of objections to the decree in Appeal Suit No. 174 of 1919 that in reality objected to what had been decided in the connected Appeal Suit No. 175 of 1919 (i.e., competence to cross-object under Order XLI, Rule 22, CPC and the effect of Rule 105 of the Civil Rules of Practice).
Whether the shops in question constituted a separate trust (and thus whether the second defendant should be regarded as hereditary trustee of a separate trust) or belonged to the temple (res judicata and related issues).

Arguments of the Parties

Appellant's Arguments

The suit was not maintainable to the extent that it sought a scheme of management for the trust properties because a scheme had already been settled in earlier litigation that went to the High Court on appeal.
The Sub-Court lacked jurisdiction to alter or change in any way a scheme that had been embodied in a decree of the District Court.
If any change to the existing scheme was called for, the proper procedure would be to apply to the District Court (the court that framed the scheme) by petition rather than by bringing a fresh suit in the Subordinate Court.
In oral submissions (Mr. Rangachariar) it was contended that the previous litigation had already produced a scheme (or measures equivalent to a scheme) and therefore the present suit attempting to secure a scheme was an improper attempt to modify that earlier scheme.

Respondents' Arguments

Respondents argued (in reply to a procedural objection) that under Rule 105 of the Civil Rules of Practice the lower Appellate Court should have drawn up only one decree and hence the two decrees should be treated as parts of the same decree, making the memorandum of objections competent.
In the memorandum of objections the respondents' substantive point was that in the scheme a third party should have been associated with the second defendant as trustee because the second defendant is old and sickly; the respondents relied on ample provision in the scheme to apply to Court in case the trustee failed in duties.
Respondents contended they should be permitted to object to the connected appeal decision via memorandum rather than filing a separate second appeal, relying on the practice-rule argument noted above.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Damodarbhat v. Bhogilal Karsondas, 24 B. 45 : 1 Bom. L.R. 509 : 12 Ind. Dec. (N.S.) 567	Where a court-drawn scheme contains a provision permitting interested persons to apply to the Court for directions and modifications, defects in the original scheme should be remedied by petition to the Court that framed the scheme.	The court relied on this authority to state that where a scheme allows future applications for modification by petition, the proper remedy is petition rather than filing a regular suit; but noted the present case did not contain such a provision in the earlier decrees.
Sadupadaya Omeshanana Oja v. Ravaneswa Prosad Singh, 43 Ind. Cas. 772	Has been treated as an authority for the proposition that courts may have inherent power to alter schemes without a fresh suit when no provision for alteration exists (though the opinion notes uncertainty about particulars of that case).	The court observed the authority exists but also observed uncertainty about whether that decision involved a petition; the court found it unnecessary to decide the broader question in the present case.
Rama Das v. Hanumanha Row, 12 Ind. Cas. 449 : 36 M. 364 : 21 M.L.J. 952 : 10 M.L.T. 356	General principle that a scheme once settled cannot be altered except by the Court; but where there is no express authority for application by petition, a suit will lie to alter the scheme.	The court cited this to support that while normally only the court can alter a settled scheme, where no express authority to apply by petition exists a suit may be maintainable — and thus the Sub-Court was the proper forum (given its jurisdiction under Section 92 CPC) to entertain the scheme suit.
Waqf case concerning Halman Khatoon, 7 Ind. Cas. 33 : 37 C. 870	Illustrates that when a court-decreed scheme contains no express authority for application by petition, a suit for alteration may be appropriate in the absence of petition machinery.	The court referenced the case as an example supporting the proposition that a suit will lie when there is no express provision for petition; the point was used to justify entertainability of the present suit by the Sub-Court.

Court's Reasoning and Analysis

The court undertook a multi-part analysis addressing both the second appeal and the memorandum of objections. The principal reasoning steps, stated as closely as the opinion presents them, are:

Maintainability of the suit for a scheme:
- The appellant argued the present suit improperly sought to modify a scheme already settled by prior litigation. The court examined the earlier decrees (District Court and High Court) to determine whether a scheme had actually been framed.
- The court found that the earlier decrees did not contain a provision permitting applications by petition for modification, and in substance the District Court had only given personal directions to the trustee to maintain and file accounts annually. The High Court's decree added a declaration that nine shops belonged to the temple but otherwise confirmed the decree; it expressly stated it was unnecessary to consider succession to trusteeship, which pointed to an absence of intention to frame a comprehensive scheme.
- Because the prior proceedings did not result in a settled scheme of management, the present suit seeking a scheme was not barred for being an attempt to modify an existing court-framed scheme. The defence of non-maintainability therefore failed.
Proper remedy (petition vs suit) and jurisdiction:
- The court acknowledged the general proposition (from Damodarbhat) that when a court-framed scheme expressly permits future applications for directions or modification by petition, the proper remedy is to petition the court that framed the scheme.
- However, when no such provision exists, it is doubtful whether courts have inherent power to alter schemes without fresh proceedings; authorities (Rama Das and the Halman Khatoon waqf case) indicate that a suit will lie where there is no express authority for petition. The court did not need to decide definitively the broader question of inherent powers because it found no settled scheme existing earlier.
- The Sub-Court of Coimbatore, being empowered under Section 92, Civil Procedure Code, was the proper court to entertain the present scheme suit.
Res judicata and new facts:
- The court held Section II, Civil Procedure Code (res judicata) did not apply to bar the present suit insofar as it prays for a scheme, because the suit was based on a different set of facts which arose at least partly after the prior suit had been filed and on a different sanction newly obtained from the Collector.
- Nonetheless, the earlier finding and declaration that the shops belonged to the temple were treated as res judicata on that specific point; therefore the contention that the shops formed a separate trust was unsustainable in the absence of material showing separate dedication.
Memorandum of objections / procedural competence:
- There was a procedural objection to hearing the memorandum of objections because the respondents sought to object (in a second appeal context) to what was decided in a connected appeal (Appeal Suit No. 175) while the present second appeal related to Appeal Suit No. 174. The objection raised that respondents should have separately appealed rather than file cross-objection under Order XLI, Rule 22, CPC.
- The respondents argued that Rule 105 of the Civil Rules of Practice required the appellate court to draw one decree, such that the two decrees should be treated as parts of the same decree and the memorandum would be competent. The court observed that if there were in fact two decrees and respondents wished to appeal against one only, it was for them to adopt the appropriate statutory course; on the merits the memorandum of objections had no case and was dismissed with costs.
- The only substantive point in the memorandum—that a third party should be associated with the second defendant as trustee on account of infirmity—was found to be without merit because the scheme already provided recourse to the Court if the trustee failed to perform duties.

The above captures the court's application of cited authorities and procedural rules to the facts presented: determining that no settled scheme had been framed earlier; that the Sub-Court had jurisdiction to entertain the suit; that res judicata did not bar the suit on the question whether a scheme should be framed on fresh facts; and that the memorandum of objections was procedurally and substantively without merit.

Holding and Implications

Final Holdings:

The second appeal is dismissed with costs of respondents Nos. 2 to 5.
The memorandum of objections is dismissed with costs.

Implications

Direct consequences for the parties:

The appellant's objections that the present suit was not maintainable (as an attempt to modify a previously settled scheme) were rejected because the court found no earlier framed scheme of management in the prior decrees; therefore the present suit could properly proceed in the Sub-Court under Section 92, Civil Procedure Code.
The respondents' memorandum of objections, which effectively attempted to challenge the connected appeal decision without a separate second appeal, was held to be procedurally and substantively untenable and was dismissed with costs.

Broader legal significance:

The opinion applies existing authorities about the distinction between petition-based modification (where a court-framed scheme provides for such applications) and suits to alter schemes when no petition procedure is provided; however, the court did not purport to lay down a new broad rule and did not state that it was establishing any novel precedent beyond applying established authorities to the facts. Accordingly, no new precedent is pronounced beyond the court's application of the cited cases to the present facts.

Show all summary ...

1. The principal points argued in this second appeal are (1) that the suit was not maintainable so tar as it was a suit for a scheme of management of the trust properties after a sceme had been once settled in a (sic) suit which was carried to the High Court in appeal, (2) that in any case the Sub-Court had no jurisdiction to (sic) or alter in any way the scheme which had been embodied in a decree of the District Court and lastly (3) that if any change in the existing scheme was called for, the proper manner for (sic) it would be to move the District Court by petition and not to file a suit in the Subordinate Court. The appellant does not wish to press any objection to any particular details of the scheme bat only to the maintainability of the suit.

2. When a scheme drawn up by a Court contains a provision permitting parties or persons interested in the religious instruction to apply to the Court for directions and for modifications to be made in the scheme already existing, as was the case with the scheme that was the subject of the decision in Damodarbhat v. Bhogilal Karsondas 24 B. 45 : 1 Bom. L.R. 509 : 12 Ind. Dec. (N.S.) 567 I am of opinion that the proper remedy for detects discovered in the original scheme is to apply by petition to the Court that framed the scheme arid not to file a regular suit. Whether Courts have inherent powers to alter schemes without a fresh suit being brought for the purpose when there is no provision for alteration in the scheme is a question that is open to doubt. Sadupadaya Omeshanana Oja v. Ravaneswa Prosad Singh 43 Ind. Cas. 772 has been (sic) un authority for that proportion, but it cannot appear clearly whether in (sic) case (sic) a (sic) petition. It is not necessary for us to decide the point, as I am Clearly or opinion that there was no obstacle in the way of the plaintiff instituting in the way of the plaintiffs instituting the present suit.

3. The previous litigation regardirg the trust was in Original Suit No. 39 of 1909 on the (sic) of the District Court, Coimbatore. Neither the decree of the District Court nor the decree Of the High Court in appeal contains any provision for the parties applying to the court by petition in future.

4. Though a scheme once settled cm not be altered except by the Court. See Rama Das v. Hanumanha Row 12 Ind. Cas. 449 : 36 M. 364 : 21 M.L.J. 952 : 10 M.L.T. 356 : (1911) 2 M.W.N. 387 a suit will lie for the purpose when there is no express authority 101 an application being mace to the Court on petition in the matter of a waqf executed by Halman Khatoon 7 Ind. Cas. 33 : 37 C. 870. As the Sub-Court of Coimbatore is now empowered to try suits under Section 92, Civil Procedure Code that was the proper Court to entertain this scheme suit.

5. Whatever objections there might be to a Court of inferior jurisdiction making alterations in a scheme framed under the decree of a superior Court, no difficulty of that kind arises out of the facts of the present case.

6. It is true that the plaint in Original Suit No. 39 of 1909 contained a prayer that the District Court would set up a scheme for the manage pent of the trust, and when the issues and the decree and judgment of that Court did not touch the question the appeal grounds contained an objection that no provision had been made for the succession to the trusteeship and that the scheme framed by the Court below was incomplete and defective. But the High Court's decree merely modified the District Court's decree by adding a declaration that nine shops described in the schedule belonged to the suit temple and otherwise confirmed the decree appealed against. The District Court's decree contained only personal directions that the defendant as trustee should maintain proper accounts and file them in Court once a year. The prayer that a scheme should be framed must be deemed to have been refused then in both Courts. The circumstances will not prevent a renewed attempt being made to have a scheme framed when the occasion arises at a later date. It is not suggested that Order II, Rule 2 of the Code of Civil Procedure is an obstacle to this suit. The defence that the present suit was not maintainable thus fails, and the only other point advanced before us that the lower Courts ought to have found that the shops formed a separate trust being unsustainable in view of the High Court's decision in Appeal Suit No. 113 of 1911, that they belonged to the temple and in the absence of any material for a finding that they had been separately dedicated, the second appeal is dismissed with costs of respondents Nos. 2 to 5.

7. There is a memorandum of objections to the decree of the District Court in Appeal Suit No. 175 of 1919 which confirmed the First Court's decree refusing to direct the removal of second defendant from the trusteeship. As there is no second appeal in that case, the respondents should have separately appealed and they have no right to file cross-objection under Order XLI, Rule 22, Civil Procedure Code. Respondents reply to this objection is that under Rule 105 of the Civil Rules of Practice the lower Appellate Court should have drawn up only one decree. When, however, there are in fact two decrees and the respondents wish to appeal against one only, it is for them to see that the course that they take to get that decree amended is the appropriate one provided by law. There are no merits in the memorandum of objections and it is therefore dismissed with costs.

Krishnan, J.

8. I agree with my learned brother that this second appeal and the memorandum of objections both fail. In the second appeal Mr. Rangachariar for the appellant contends that the suit, so far as it refers to a scheme of management of the suit temple, is really an attempt to modify a scheme already framed for it by the District Court in a former litigation between the same persons and is therefore to that extent not maintainable, the plaintiff's only remedy being an application to the Court for the purpose. The answer to this contention, however, is that there was no scheme framed by the Court in the former suit. It is true that a scheme was prayed for but as I read the judgments and the decrees of the District Court and of the High Court in appeal in that suit those Courts thought it sufficient to give a direction to the trustee by way of an injunction to keep correct accounts and file them in Court. That was purely a personal direction and cannot, in my view, be construed to be the framing of a scheme of management. The High Court in its judgment expressly stated that it was unnecessary to consider the succession to the trusteeship. If the Court were framing a scheme, that would have been a material point to settle, and the statement thus points to the fact that there was no intention to settle any scheme. I would, therefore, overrule Mr. Rangachariar's objection solely on that ground without expressing an opinion about the other points dealt with by my learned brother with reference to this contention.

9. There is no question of resjudicata and Section II. Civil Procedure Code cannot be applied as the present suit, so far as it prays for a scheme, is based on a different set of facts which came into existence at least partly after the previous suit had been filed and on a different sanction newly obtained from the Collector. No doubt the finding in the previous suit that the shop belonged to the temple and the declaration in the decree to that effect render that matter res judicata but the question whether a scheme should be framed on the fresh facts alleged is not concluded by the refusal to frame one in the former suit. The contention that the shops formed a separate trust from the temple and that the defendant as one of the founders of the special trust should be treated as its hereditary trustee must thus be rejected. Even if we could consider the merits of the contention, there is nothing to show that the shops were kept as a separate trust. No other points were argued m the second appeal and I agree that it should be dismissed with costs of respondents Nos. 2 to 5.

10. A preliminary objection was raised to our hearing the memorandum' of objections as it was pointed out that though there was only one suit and one decree in the First Court, there were two appeals, Appeal Suit Nos. 174 and 175 of 1919, in the Appellate Court filed by the second defendant and the plaintiffs respectively and that, though there was only one judgment in appeal, two independent decrees were drawn up by that Court in two appeals in spite of Rule 105 of the Civil Rules of Practice. The second appeal is against the decree in Appeal Suit No. 174 and the memo, though worded as in that second appeal in the cause title, really objects to what had been decided in the connected Appeal Suit No. 175. It is contended that it is not open to the respondents in the second appeal against Appeal Suit No. 174 to object to the decision in Appeal Suit No. 175 by way of memorandum of objections but that they should have filed an independent second appeal themselves if they wanted to do so. The respondents, answer on this objection is that in view of Rule 105 we must treat the two decrees as really parts of one and the same decree in which case, of course, the memorandum of objections will be competent and that in case we hold that that cannot be done, the memorandum of objections should be allowed to be amended into a second appeal against Appeal Suit No. 175 of 1919 and the delay excused. It is not necessary to consider how far the respondents contentions can be supported, for on the merits they have no case in their memorandum of objections. The only point argued is that in the scheme framed, a third party should have been associated with the second defendant as trustee as the latter is did and sickly, there is however ample provision in the scheme to apply to Court in case the second defendant fails to do his duty as trustee. I agree that the memorandum of objections should also be dismissed with costs.