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B. Sivaram Dubai (Petitioner). v. R. Rajagopala Misra And Another S (Petitioners).
Structured Summary of the Opinion
Factual and Procedural Background
The appeal and connected revision petitions arise from an order of the District Judge of Madura who appointed two new persons as trustees of the Ranga Chattram charities to replace two trustees whose five-year terms (as provided by the scheme) had expired. One of the outgoing trustees sought re-appointment; he was not re-appointed and therefore preferred the present Miscellaneous Appeal and connected revision petition. The newly appointed trustees are respondents in the appeal. A preliminary objection was raised by the respondents' counsel that no appeal lies. The appellant's counsel contended that the matter falls under Section 47 of the Code of Civil Procedure and that an appeal lies; alternatively he asked the Court to exercise revisional powers on the ground that the District Judge lacked jurisdiction and that appointment could be made only in proceedings under Section 92 of the Code after obtaining the necessary sanction. The scheme governing the trust contains relevant provisions at paragraphs 4 and 15: paragraph 4 prescribes five-year terms and re-appointment eligibility and provides that vacancies "shall be filled up by the Court"; paragraph 15 reserves liberty for parties or the Advocate-General to apply to the Court regarding carrying out the scheme.
Legal Issues Presented
- Whether the District Judge had jurisdiction under paragraph 4 of the scheme to fill vacancies by appointing trustees without separate proceedings under Section 92 of the Civil Procedure Code (i.e., whether filling such vacancies amounts to an alteration or modification of the scheme requiring Section 92 proceedings).
- Whether the proceedings before the District Judge amounted to proceedings "arising in execution" such that an appeal lies under Section 47 of the Code of Civil Procedure.
- Whether, on the facts and the wording of the scheme, the matter should instead be dealt with by separate proceedings under Section 92 (as contended by the appellant) or whether the reserved liberty to apply in paragraph 15 triggers Section 92 for the appointment challenged.
Arguments of the Parties
Appellant's Arguments (summarised)
- The appointment made by the District Judge was not competent and could be challenged because, according to the appellant, such an appointment could be made only in a suit instituted under Section 92 of the Code after obtaining necessary sanction.
- The matter was said to be covered by Section 47 of the Code (i.e., arising in execution), and therefore an appeal lay to the present court under Section 47.
- Relied on precedent: the Full Bench decision in Veeraraghavachariar v. The Advocate-General of Madras to support the contention that modifications or directions under a scheme require Section 92 proceedings.
- Also relied on Privy Council authority (Ponnambala Tambiran) and Ramanathan Chettiar v. Balayee Ammal to support the contention that the decree/directions could give rise to execution and an appeal under Section 47.
Respondents' Arguments (summarised)
- Preliminary objection that no appeal lies in the circumstances described.
- Relied on a number of precedents of this Court holding that in scheme suits of this kind an appeal under Section 47 does not lie and that such matters are not "arising in execution" under Section 47.
- Relied on Privy Council observations (Sevak Jeranchod Bhogilal v. The Dakore Temple Committee) as supportive of the contention that Section 47 would not apply to the appointment made in this context.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Veeraraghavachariar v. The Advocate-General of Madras (1927) I.L.R. 51 M. 31 : 53 M.L.J. 792 (Full Bench) | Principle that modifications or alterations of a scheme framed in a suit can be effected only by proceedings under Section 92 of the Code of Civil Procedure. | The Court acknowledged the Full Bench rule but distinguished the present case: it held that filling vacancies under paragraph 4 of the scheme is not an alteration or modification of the scheme and therefore does not attract Section 92; the District Court therefore had jurisdiction to fill vacancies under the scheme. |
| Ponnambala Tambiran v. Sivagnana Desika Gnama Sambhanda Pandara Sannadhi (1894) L.R. 21 I.A. 71 : I.L.R. 17 M. 343 (Privy Council) | Authority relied upon for the proposition that certain scheme decrees (or directions in a decree) may lead to proceedings in execution and appeals under the then-applicable execution provisions. | The Court examined the Privy Council decree and concluded it related to filling an then-existing vacancy (i.e., a concrete vacancy) and thus did not support the appellant's contention as paragraph 4 in the present scheme provides machinery for future vacancies; consequently the Privy Council decision did not bolster the appellant's argument that Section 47 applied here. |
| Gnanasambanda v. Visvalinga (1890) I.L.R. 13 M. 338 | Used as the source for the operative wording of the decree considered in the Privy Council decision (Gnanasambanda case provided the decree text). | The judgment was used to show the Privy Council's discussion related to a specific existing vacancy; the Court relied on that wording to distinguish the present case. |
| Ramanathan Chettiar v. Balayee Ammal (1927) 27 L.W. 32 | Authority where Court treated a petition as coming under clause (2) of Section 47 and observed that when specific directions are given in a scheme decree those directions might render the decree executable. | The Court noted the special facts and doubts expressed in that decision; it regarded that case as distinguishable and not supporting the appellant's broad contention that Section 47 generally applied to scheme appointments of the present character. |
| Rangmatha Thathachariar v. Krishnaswami Thathachariar (1923) I.L.R. 47 M. 139 | One of several decisions holding that appeals do not lie under Section 47 in the context of scheme suits; treated as authority limiting the application of Section 47 to such matters. | The Court cited this and similar decisions as precedent supporting the respondents' position that Section 47 is not applicable and that an appeal does not lie; the Court followed these authorities. |
| Sivan Pillai v. Venkateswara Aiyar (1925) 22 L.W. 796 | Decision holding that matters in scheme suits of this character do not fall under Section 47. | Relied upon by the respondents and followed by the Court as part of the line of authorities concluding Section 47 does not apply. |
| Bangarammal v. Ramanuja Aiyangar (1925) 94 I.C. 610 | Another decision cited as supporting the proposition that Section 47 would not apply to scheme-suit appointments. | Referred to by the Court as part of the consistent body of authority to be followed; used to justify dismissal of the appeal under Section 47. |
| Abdul Hakim Baig v. Burramiddin (1925) I.L.R. 49 M. 580 | Decision in the same line that Section 47 does not apply to such scheme matters. | Included among authorities supporting the respondents; the Court saw no reason not to follow these cases when deciding that Section 47 did not apply. |
| Sevak Jeranchod Bhogilal v. The Dakore Temple Committee (1925) 49 M.L.J. 25 (Privy Council) | Privy Council observations cited as lending support to the proposition that Section 47 does not apply in such scheme-suit contexts. | The Court regarded observations in this Privy Council decision as supportive of the respondents' stance and thus persuasive in denying applicability of Section 47 here. |
Court's Reasoning and Analysis
The Court approached the matter in two principal stages corresponding to the parties' main contentions: (1) whether the appointment of trustees under paragraph 4 of the scheme amounted to a modification or alteration of the scheme requiring Section 92 proceedings; and (2) whether the appointment fell within the scope of "matters arising in execution" so as to attract an appeal under Section 47 of the Code of Civil Procedure.
On the Section 92 point, the Court accepted the Full Bench principle that a modification or alteration of an existing scheme is effectively a new scheme and ordinarily requires the procedural route provided by Section 92. However, the Court analysed the specific wording of paragraph 4, which expressly provides that each trustee shall hold office for five years, is eligible for re-appointment, and that "any vacancy in the office of either of the said trustees shall be filled up by the Court." The Court reasoned that:
- Filling a vacancy under an express provision of the scheme is not the same thing as altering or modifying the scheme itself.
- The existence of machinery in the scheme to fill future vacancies (here, by the Court) does not constitute a modification that would invoke Section 92; it is instead an operative provision of the scheme governing routine administration.
- There is no material difference between vesting appointment power in the Court and vesting it in an outside body for the limited purpose of filling vacancies; both are internal appointment mechanisms provided by the scheme and do not automatically attract Section 92.
- Therefore, the District Court had jurisdiction under paragraph 4 to fill vacancies by appointment and the appointment did not represent an unlawful modification of the scheme subject to Section 92.
On the Section 47 (execution / appeal) point, the Court considered the appellant's reliance on Privy Council authority and on Ramanathan Chettiar. It examined the Privy Council's decree text (as set out in Gnanasambanda v. Visvalinga) and found the Privy Council decision concerned filling an existing, concrete vacancy. By contrast the present scheme provision deals with a standing mechanism for future vacancies. Thus the Privy Council decision did not support the appellant's contention that the appointment was a matter arising in execution for which an appeal under Section 47 would lie.
As to Ramanathan Chettiar v. Balayee Ammal, the Court noted that the judges in that case treated the proceedings as coming under clause (2) of Section 47 (allowing a petition to be treated as a plaint) because the facts were special; the present Court found that Ramanathan Chettiar was distinguishable and did not establish a general rule that appointments under a scheme of the present nature give rise to execution proceedings under Section 47.
The Court also relied on a series of earlier decisions of the Court (for example Rangmatha Thathachariar v. Krishnaswami Thathachariar; Sivan Pillai v. Venkateswara Aiyar; Bangarammal v. Ramanuja Aiyangar; Abdul Hakim Baig v. Burramiddin) that had held that Section 47 would not apply in similar contexts. The Court found these authorities persuasive and saw no reason not to follow them.
On this analysis the Court concluded that proceedings before the District Judge were not proceedings "arising in execution" within Section 47 and that the District Judge had jurisdiction, under paragraph 4 of the scheme, to make the appointments. Consequently, neither an appeal under Section 47 nor interference in revision was justified.
Holding and Implications
Holding (core rulings):
- The appeal is dismissed — the Court held that no appeal lies under Section 47 of the Civil Procedure Code in respect of the appointments made by the District Judge.
- The connected revision petitions are dismissed — the Court held that the District Judge had jurisdiction under paragraph 4 of the scheme to appoint trustees to fill vacancies and that such appointments did not amount to an alteration or modification of the scheme requiring proceedings under Section 92.
Consequential orders (as stated in the opinion):
- The appeal is dismissed with costs; the pleader's fee was fixed at Rs. 250.
- The revision petitions were dismissed as well, but in the circumstances were dismissed without costs.
- No orders were necessary on the miscellaneous petitions.
Implications: The immediate practical consequence is that the District Judge's appointments stand and the appellant's challenge failed. The Court treated the scheme's provision for filling vacancies by the Court as an internal administrative provision and distinguished it from circumstances requiring Section 92 proceedings. The Court followed earlier authorities holding that such matters do not ordinarily fall within Section 47; the decision applies that line of authority to the facts of this case. The opinion does not state that it is creating a novel precedent beyond these applications and distinctions of existing authorities.
1. This appeal and the revision petitions arise out of an order passed by the learned District Judge of Madura, by which he appointed two new persons as trustees of the Ranga Chattram charities in the place of the two old trustees whose term of office expired after they had held office for five years under the scheme. One of the trustees whose term had so expired sought re-appointment and, as he was not re-appointed, he has preferred this Miscellaneous Appeal and the connected revision petition. Mr. Rajah Aiyar, who appears for the respondents, the newly appointed trustees, raised a preliminary objection that the appeal does not lie; and the answer of Mr. Ganapathi Aiyar was that the matter in dispute is really covered by Section 47 of the Code of Civil Procedure and that an appeal lies. He also argues that we should in any event interfere under our revisional powers because, he says, that the learned District Judge was not entitled to make the appointment complained of, and that, in spite of the terms of the scheme decree, such an appointment could be made only in a suit instituted under section 92 of the code after the necessary sanction had been obtained. I think it will be more convenient to deal with the second objection first. To appreciate Mr. Ganapathi Aiyar's argument it is necessary to refer to paragraphs 4 and 15 of the scheme. Paragraphs 4 runs as follows:
Each of the two trustees to be appointed by the Court should hold office for a term of five years but should be eligible for re-appointment, and any vacancy in the office of either of the said trustees shall be filled up by the Court.
2. Paragraph 15 is to the following effect;-:
Liberty is reserved for the parties to the suit or for the Advocate-General to apply to the Court with reference to the carrying out of the directions contained in the scheme.
3. Mr. Ganapathi Aiyar argued that the provision in paragraph 4 of the scheme only means that the Court, when approached under Section 92, should have the power to appoint proper trustees in cases of vacancy. He also relied on the decision of the Full Bench in Veeraraghavachariar v. The Advocate-General of Madras (1927) I.L.R. 51 M. 31 : 53 M.L.J. 792 (F.B.). I am unable to agree with him. That decision only laid down that, in cases where it is sought to effect alterations or modifications of a scheme, the same could be effected only by proceedings taken under Section 92 of the Civil Procedure Code. The question referred to the Full Bench was whether, in cases where liberty to apply is reserved to a person to ask for directions as to the carrying out of a scheme or to move the Court for alterations or modifications of the scheme, applications to have such things carried out could be made in the suit itself or whether the same could be done only by separate proceedings taken under Section 92 of the Civil Procedure Code. At page 4 5 of the judgment of the learned Officiating Chief Justice, who delivered the opinion of the Full Bench, it is mentioned as follows:
A scheme having been framed, any modification or alteration of it is in effect a new scheme and the power to frame a new scheme is given only subject to the conditions specified in Section 92.
4. In the present case, if by virtue of the liberty given by the scheme to apply to the Court, it be sought to effect alterations or modifications of the scheme, then, by virtue of the Full Bench decision, they can be effected only after proceedings are taken under Section 92. But there is paragraph 4 of the scheme which I have already mentioned. It provides for the filling up of vacancies whenever such vacancies occur; and it says that any vacancy in the office of either of the said trustees should be filled up by the Court. I do not agree with the arguments of the learned advocate for the appellant that filling up vacancies under such provisions of the scheme amounts to either alteration or modification of the scheme. I put him the question whether he would contend that, if the scheme contained a provision for the filling up of vacancies by a vote of the majority of a Board of Electors, or by any specified authority, and such authority appointed particular persons to fill up the vacancies, the same also would come within the ruling of the Full Bench. If I understood him correctly, he was not prepared to go to that extent; and his argument was that in cases where the right to appoint is given to the Court the power of appointment could not be exercised as the provisions of section 92 are automatically attracted. I am unable to agree. In this respect I am unable to find any material difference between a case where under the scheme, the power to appoint is given to an outside body and one where such power is given to the Court itself. It, therefore, seems to me that the present is not a case where any modification or alteration of the scheme is asked for by virtue of any power to apply reserved under the scheme. If I am right in this view, it would follow that the Lower Court had jurisdiction to entertain the application and that we should not be justified in interfering in revision.
5. But the learned advocate argued that in that view the matter must be taken to be one arising in execution and falling within the scope of Section 47 of the Civil Procedure Code, and that he would have a right of appeal. In support of that argument he relied on the decision of the Privy Council in Ponnambala Tambiran v. Sivagnana Desika Gnama Sambhanda Pandara Sannadhi (1894) L.R. 21 I.A. 71 : I.L.R. 17 M. 343 (P.C.), and that of a Bench of this Court in Ramanathan Chettiar v. Balayee Ammal (1927) 27 L.W. 32. After carefully considering the words of the decree which was the subject of comment by the Privy Council, I find that that case does not really lend support to his contention. The decree which was the subject of discussion before the Privy Council is found at page 339 of Gnanasambanda v. Visvalinga (1890) I.L.R. 13 M. 338. The decree is set out in extenso there, and I find that the operative portion of the decree was:
That the Subordinate Judge of Kumbakonam in order to fill up the now vacant office of Tambiran of the Tiruppanandal Mutt do direct the appellant, etc...(to name a Tambiran from among the Tambirans of his adhunani, competent to discharge the duties of managing Tambiran of the Benares (Kasi) Mutt at Tiruppanandal).
6. The matter before the Court thus relates to the filling up of a then existing vacancy, and not to provide for the filling of ail future vacancies should there be any, and it was with reference to the filling up of the actual vacancy which was the subject-matter of the suit that the litigation was carried to the Privy Council; and when the remarks of their Lordships of the Privy Council are read in the light of the wording of the decree in that case, I think that the judgment of the Privy Council does not support the contention of the appellant before us. The provision in paragraph 4 of the scheme before us is not for the filling up of any existing vacancy; and that, 1 think, is a material distinction between the case quoted by the appellant and the one before us. The other case referred to by the learned advocate. Ramanathan Chettiar v. Balayee Ammal (1927) 27 L.W. 32, a judgment of Ramesam and Cornish, JJ., was a case where the learned Judges specifically observed that they did not question the correctness of the numerous cases quoted before them, in which with reference to scheme suits generally it was held that the matter did not relate to execution and that an appeal did not lie; they distinguished the case before them on the ground that when specific directions were given in the scheme decree, then with reference to such directions the decree would be an executable decree. They, however, felt some doubt on the question, and accordingly resolved to treat the matter before them as coming under clause (2) of section 47 under which Courts are given discretion to allow a petition filed under that section to be treated as a plaint. Both the learned Judges refer to this aspect of the case, and they finally resolved to treat the proceedings before them as a plaint as there was no other objection to their doing so.
7. Having thus disposed of the two cases on which reliance was mainly placed by the learned advocate for the appellant, I may state that our attention was drawn by the learned advocate for the respondents to numerous cases where this Court held-, that an appeal does not lie in such cases, and that such matters could not be taken to be matters arising under section 47 of the code: Rangmatha Thathachariar v. Krishnaswami Thathachariar (1923) I.L.R. 47 M. 139 (Oldfield and Venkatasubba Rao, JJ.), Sivan Pillai v. Venkateswara Aiyar (1925) 22 L.W. 796 (Spencer and Madhavan Nair, JJ.), Bangarammal v. Ramanuja Aiyangar (1925) 94 I.C. 610, (Devadoss and Waller, JJ.), Abdul Hakim Baig v. Burramiddin (1925) I.L.R. 49 M. 580 (Devadoss and Wallace, JJ.), are among the cases to which our attention was drawn by the respondents' learned advocate. It was there held that in such cases Section 47 would not apply. I do not see any reason for not following those cases; more especially as the observations of the Privy Council in the Dakore case, Sevak Jeranchod Bhogilal v. The Dakore Temple Committee, (1925) 49 M.L.J. 25 (P.C.) seem to lend support to the contention of the respondents.
8. For the above reasons I hold that no appeal lies in this case under Section 47, Civil Procedure Code, and I would accordingly dismiss the appeal with costs. I would fix the pleader's fee at Rs. 250.
9. I have already mentioned that the Lower Court had jurisdiction to proceed to make the appointments by virtue of the provisions of Clause (4) of the scheme and that the decision of the Full Bench in Veeraraghavachariar v. The Advocate-General of Madras (1927) I.L.R. 51 M. 31 : 53 M.L.J. 792 (F.B.) does not support the contention of the petitioner that the Lower Court had no jurisdiction to do so. That being so, I would dismiss the revision petitions also, but, in the circumstances, without costs.
10. No orders are necessary on the Miscellaneous Petitions.
Reilly, J.
11. I agree that in this case no appeal lies both because, as my learned brother has pointed out, the proceedings before the District Judge were not proceedings within section 47 of the code arising in execution and because the parties concerned are not parties to the suit. But the most interesting and important part of Mr. Ganapathi Aiyar's contention was that Clause (4) of the scheme for this trust, under which the District Judge has appointed the two respondents trustees, is ultra vires, having
" been made in a scheme suit under Section 92 of the Code of Civil Procedure, but according to his contention being in conflict with the Full Bench decision of this Court in Veeraraghavachariar v. The Advocate-General of Madras ( 1927) I.L.R. 51 M. 31 : 53 M.L.J. 792 (F.B.). In this case we are fortunate in the fact that my learned brother was a member of that Full Bench, and he has expounded the decision of the Full Bench. As he has pointed out, it was there laid down that, if a scheme made in a suit under section 92 of the code provides for liberty to apply for the modification of that scheme, then that provision is ultra vires; and, as I understand the case, it was also decided that, if the scheme provides for liberty to apply for directions, those directions cannot extend to anything which the Court is empowered to do under section 92 of the code. Mr. Ganapathi Aiyar urges that under that section the Court has power to appoint a new trustee; and from that he argues on the strength, as he says, of the Full Bench decision, that any provision in a scheme made under the section that a trustee shall be appointed to fill a vacancy by the Court is ultra vires. To my mind the selection and appointment of a trustee by the Court in accordance with such a scheme when a vacancy occurs is a very different thing from the appointment of a new trustee referred to in the section. If we look at the section, we"find that under it the question of the Court appointing a new trustee arises only when the direction of the Court is deemed necessary for the administration 'of the trust. That may happen when a trustee is removed by the Court and no other machinery for replacing him comes into play or when a direction in the matter is required in other circumstances. But, when a scheme has provided regular machinery for the appointment of a trustee if a vacancy occurs, no direction of the Court is required for working that machinery in an ordinary case or in a case such as this. The machinery is there ready for use; and it does not appear to me to make any difference whether the machinery set up by the scheme is a Court which would have jurisdiction in a suit under section 92 of the code or any other body or person. In my opinion, therefore, the provision in this scheme that, when vacancies occur among the trustees other than the life-trustee, the vacancies shall be filled by the District Court is not in any way in conflict with the interpretation of section 92 of the code by the Full Bench in Veeraraghavachariar v. The Advocate-General of Madras ( 1927) I.L.R. 51 M. 31 : 53 M.L.J. 792 (F.B.).
12. I agree that this appeal and the revision petitions should be dismissed. I also agree with the order proposed by my learned brother as to costs.
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