Citation Codes

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Case Number

Miscellaneous Case No. 10 of 1934.

Advocates

Dr. K.N Katju and Messrs Janaki Prasad, V.D Bhargava and Gajadhar Prasad Bhargava, for the applicant.
Dr. N.P Asthana and Messrs G. Agarwala, B.N, Sahai, Kartar Narain Agarwala and Satya Narain Agarwala, for the opposite parties.

Judges

Niamat-ullah
Bajpai, JJ.

Acts

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Smart Summary

Summary of Opinion: Application to Modify Scheme for Rangji Temple (Brindaban)

Factual and Procedural Background

Two persons interested in the Rangji temple in Brindaban (district Muttra) filed an application seeking modification of a scheme that this Court had settled in First Appeal No. 355 of 1922. That scheme had been settled pursuant to a suit under section 92 of the Civil Procedure Code. The application chiefly relied on paragraph 21 of the scheme, which reserved to the Court the power to modify the scheme on the application of the trust committee or any two members or any two other persons interested in the trust.

The applicants sought amendments including: (a) making the office of the president open to election by committee members (deleting the ex officio presidency of the gaddinashin); (b) changing quorum provisions to require three trustees even for adjourned meetings; (c) removal of the present gaddinashin from the offices of president and trustee; (d) appointment (or enforcement of appointment) of a manager; and (e) steps to trace and recover allegedly misappropriated property, specifically fourteen Government promissory notes.

The opposite party raised a preliminary objection that the application was not maintainable because, once the suit under section 92 was finally decided and a decree containing the scheme was passed, the court was functus officio and could not amend the scheme; it argued the reservation in the scheme was ultra vires. The Court considered preliminary objections, related authorities, and the merits of the application, and ultimately dismissed the application with costs of Rs. 500.

Legal Issues Presented

Whether a court which has settled a scheme under section 92 and passed a decree embodying that scheme can reserve to itself power to modify the scheme subsequently (i.e., whether such a reservation is ultra vires).
Whether, after termination of a suit under section 92 and the passing of a decree embodying the scheme, the court is functus officio and therefore incapable of modifying the scheme except by reopening the decree under section 152 or by a fresh suit under section 92.
Whether, apart from any power expressly reserved in the scheme, the court may rely on its inherent powers under section 151 of the Civil Procedure Code to modify a scheme previously settled by it.
Whether the present miscellaneous/application procedure is appropriate for reliefs sought (such as removal of a trustee/president or tracing and recovery of allegedly misappropriated trust property), or whether a fresh suit under section 92 (with permission where required) is necessary.

Arguments of the Parties

Applicants' Arguments

The application relied principally on paragraph 21 of the scheme which expressly reserved to the Court the power to modify the scheme on an application by the trust committee or any two members or any two other persons interested in the trust.
The applicants sought specific modifications (presidential election by committee, change in quorum, removal of the gaddinashin as president and trustee, appointment of a manager) and alleged mismanagement including disappearance/misappropriation of fourteen Government promissory notes and other funds.

Opposite Party's Arguments

A preliminary objection that the application is not maintainable because, after termination of the suit under section 92 and the passing of a decree embodying the scheme, the court becomes functus officio and cannot modify the scheme.
It was argued that if removal of a trustee or directions for administration are needed, a fresh suit under section 92 (instituted with the permission of the Advocate-General/Legal Remembrancer where required) is the only remedy; modification of a decree/scheme is not permissible except under section 152, which does not apply.
The provision in the settled scheme reserving power to the Court to amend the scheme was said to be ultra vires. The opposite party relied strongly on Veeraraghavachariar v. Advocate-General of Madras, a Full Bench decision of the Madras High Court, as authority that reservation for alteration/modification is ultra vires.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Veeraraghavachariar v. Advocate-General of Madras	Held (Full Bench, Madras) that a reservation in a decree under section 92 permitting application for alteration or modification of the scheme is ultra vires; liberty to apply for mere directions to carry out the scheme is intra vires, but liberty to apply for alteration/modification offends section 92.	The Court reviewed and distinguished this authority, concluding that it placed undue stress on the right to apply and that the real question is whether the Court can reserve power to amend the scheme. The Court did not follow the Madras Full Bench ratio and rejected the view that such reservation is necessarily ultra vires.
Chandraprasad Ramprasad v. Jinabharthi Narayan	Referenced as authority contrary to the Madras view (i.e., supporting power to modify scheme).	Relied upon (with other cases) as authority to the contrary of Veeraraghavachariar; contributed to Court's conclusion that reservation to modify is not ultra vires.
Manadananda Jha v. Tarakananda Jha Pandu	Referenced as authority contrary to the Madras view.	Counted among decisions supporting the proposition that reservation to modify scheme is valid; used to show contrary authorities exist.
Sadupadhya Umeshanand Oja v. Maharaja of Gidhour	Referenced as authority contrary to the Madras view.	Considered by the Court as part of the body of authority opposing the Madras Full Bench decision.
Mahomed Waheb Hussain v. Syed Abbas Hussain	Referenced as authority contrary to the Madras view.	Included among cases supporting the conclusion that reservation is not ultra vires.
U Po Maung v. U Tun Pe	Mentioned but noted by the Court as not in point; the power to modify the scheme was not reserved in that case.	Court observed it was not directly relevant to the specific question of reservation of power to modify a scheme.
Shera Khan v. Bhure Shah	Dealt with a scheme under section 92 that empowered a committee to dismiss a mutwalli and appoint another; the committee exercised that power and a dispute followed. Not a decision on whether reservation in a scheme is ultra vires.	Court treated it as not directly deciding the ultra vires question; it illustrates exercise of a power reserved to a committee under a scheme, and the Court noted the case did not bear on the precise point here.
Mohunt Darshan Das v. Collector of Meerut	Held that the Code of Civil Procedure gives no power to a District Judge to take action to protect property of a public endowment unless and until a regular suit is filed under section 92; in that case the District Judge's extraordinary orders were reversed.	The Court noted this decision does not touch the precise point of reservation of power to amend a scheme, but it was referred to for the proposition that interim actions by judicial officers are limited absent a suit under section 92.

Court's Reasoning and Analysis

The Court proceeded in stages: it first addressed the preliminary objection that the application was not maintainable because the Court was functus officio after passing the decree embodying the scheme under section 92 and therefore could not amend the scheme.

On the question whether reserving to the Court a power to modify the scheme was ultra vires, the Court analysed the Madras Full Bench decision in Veeraraghavachariar and considered other contrary authorities. The Madras decision was seen as resting on the proposition that reliefs described in section 92 (including settling a scheme) can only be sought by instituting a fresh suit in the manner laid down; hence alteration of a previously settled scheme should not be permitted by mere application. The Court considered that this approach placed excessive emphasis on the right given to an interested person to apply and overlooked whether the Court itself can retain a power to amend the scheme.

The Court concluded that nothing in section 92 makes reservation of a power to modify the scheme ultra vires. The power of the court to settle a scheme is sufficiently comprehensive to include making the scheme alterable by the court if necessary in future. The Court explained that allowing the scheme to be "elastic" by reserving modification does not undermine the finality of adjudication embodied in the decree; where the court later amends the scheme within the limits laid down by the decree, it is giving effect to its own decree rather than amending it in the sense proscribed by section 152.

The Court also considered the position where modification is sought otherwise than under an express reservation in the scheme. It held that, apart from a reservation in the scheme, the only provision in the Code justifying amendment by the Court of the scheme is section 151 (inherent powers). The Court accepted that the inherent power under section 151 may be exercised to prevent abuse of process or where the ends of justice plainly demand it, but emphasized the comparatively narrow scope of section 151 in this context.

Having repelled the preliminary objection, the Court proceeded to the merits. The Court noted the applicants primarily sought removal of the gaddinashin from the offices of president and trustee on grounds of alleged misconduct and misappropriation (including the missing promissory notes). The Court found it could not entertain a direct application for removal because the scheme itself provided mechanisms for removal and filling vacancies (i.e., the trustees are to fill vacancies and have power to remove trustees). Thus, removal must follow the procedures in the scheme or be sought by a proper suit under section 92 (with permission where required).

On the proposed modification to make the president's office elective and to exclude the gaddinashin from being a trustee, the Court examined the scheme as a whole and concluded it was "an admirable scheme" likely to work satisfactorily in normal circumstances. The Court found no case made out to amend that general rule merely because of alleged unsatisfactory performance in the present instance; accordingly it declined to modify the scheme in those respects.

Regarding the quorum amendment (making three trustees necessary even for an adjourned meeting), the Court considered the scheme's quorum rule (three of seven, but no quorum required for an adjourned meeting) and rejected the proposed amendment as undesirable and potentially conducive to delay. The Court relied on the scheme's existing provision that a trustee who fails to attend meetings for two years renders himself liable to removal, finding this sufficiently deterrent against habitual absence.

On the complaint that no manager had been appointed despite the scheme's provision for one, the Court declined to investigate the factual dispute in the miscellaneous application; it held that if the Board of trustees had failed to appoint a manager as required, the proper remedy is proceedings to enforce that obligation. The Court would not, on the present application, direct more than what the scheme already prescribes (i.e., that the Board should appoint a manager).

Finally, as to tracing and recovering the alleged missing Government promissory notes and misappropriated funds, the Court held that no action could be taken on a miscellaneous application like the present one. The Court would not exercise any inherent jurisdiction (even assuming it possessed such power for those matters) to give the reliefs sought in that respect.

Holding and Implications

DISMISSED — The application seeking modification of the scheme and ancillary reliefs failed and was dismissed. Costs were assessed at Rs. 500.

Implications (direct effects and legal consequences explicitly drawn from the opinion):

The Court held that a provision in a scheme settled under section 92 reserving to the Court a power to modify the scheme in future is not ultra vires; the Court may validly retain such a power when preparing a scheme under section 92.
Where no express reservation exists, the Court accepted that section 151 (inherent powers) is the only provision in the Civil Procedure Code by which the Court may justify amendment of a scheme previously settled by it; such inherent power should be exercised only to prevent abuse of process or when the ends of justice plainly demand it, and its scope is comparatively narrow.
The Court declined to exercise either the reserved power (in this instance) or inherent power to make the specific amendments sought because no sufficient case had been made: the scheme was adjudged to be sound and modifications sought (removal of the gaddinashin, changing the ex officio presidency, changing the quorum) were not justified by the material before the Court.
The applicants retain the procedural remedy of instituting a suit under section 92 (with the required permission of the Legal Remembrancer/Advocate-General where applicable) to seek relief such as removal of a trustee or other measures, rather than obtaining those reliefs by the miscellaneous application before the Court.
The Court refused to entertain the applicants' requests to trace/recover the alleged missing Government promissory notes or to order specific investigatory or recovery steps on the basis of the present miscellaneous application.

This summary is limited to and derived solely from the content of the provided opinion. No information beyond that text has been introduced.

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Swami Rangacharya v. Ganga Ram

Niamat-ullah and Bajpai, JJ.:— This is an application by two persons interested in the temple of Rangji situate in Brindaban, district Muttra, praying for modification of the scheme settled by this Court in First Appeal No. 355 of 1922, which had arisen out of a suit under section 92 of the Civil Procedure Code.

The application is mainly based on a provision contained in paragraph 21 of the scheme which reserves powers to the court to modify it at the instance of any two trustees or any two persons interested in the trust. The application also implies a prayer for certain reliefs, apart from the exercise of the power reserved by the provision already referred to.

A preliminary objection is taken by the opposite party that the application is not maintainable. It is contended that the court becomes functus officio after the termination of the suit under section 92 of the Civil Procedure Code and cannot modify the scheme settled by it and made part of the decree in the suit and that the provision in the scheme reserving power to the court to modify it is ultra vires.

The scheme as originally prepared by this Court provided in paragraph 4: “The trust shall be administered by a committee consisting of the gaddinashin of the Sri Rangji's temple, Brindaban, for the time being, as president, and six other members, selected from among the followers of the Vaishnava faith and preference shall be given in making such selection as far as it may be practicable to persons belonging to the Tingal sampradaya.” As part of the scheme Swami Rangji was appointed to the office of the gaddinashin, subject to the conditions laid down in a supplementary deed of trust, dated the 3rd of November, 1873, which renders him liable to be removed on the happening of certain contingencies therein specified. A number of trustees were nominated in the scheme which made provisions for succession to the office of the trustee in case of vacancy. It was also laid down that three members of the committee would form a quorum but that if a meeting is adjourned for want of a quorum no such quorum would be necessary for the adjourned meeting.

In the application now made it is prayed that the scheme be so amended as to threw the office of the president open to election by the members of the committee and that the provision whereunder the gaddinashin is the ex officio president be deleted. Modification of the scheme is also sought in respect of the quorum. It is desired that the presence of three trustees should be made necessary even for an adjourned meeting. Another prayer is that the present gaddinashin be removed from the office of a trustee and that of the president and that a manager be appointed for which a provision already exists in the scheme.

It is alleged in an affidavit filed in support of the application that the gaddinashin has mismanaged the affairs of the trust and has misappropriated considerable property including fourteen Government promissory notes. It is prayed that steps be taken to trace and to recover the notes and action be taken against those found to have been guilty of misappropriation of the funds belonging to the endowment. There is a general prayer asking for orders in respect of the proper management and control of the temple and property belonging thereto.

Paragraph 21 of the scheme, on which the application is principally based, runs as follows: “It shall be open, to the trust committee or any two members of the trust committee or any two other persons interested in the trust to apply to the Hon'ble High Court for directions in regard to any matter not covered by this scheme or for any modification of this scheme which may from time to time be considered necessary or desirable in the interest of the trust or for the protection of the trust property.” It is contended that the suit under section 92 having been completely decided and a decree embodying the scheme having been formally passed, it is not open to the court to pass any orders amending the scheme, the court having exhausted its jurisdiction by passing a decree in the suit. It is said that if the removal of a trustee or any direction for the proper administration of the trust is necessary, a fresh suit under section 92, instituted with the permission of the Advocate-General, is the only remedy open to the persons who are dissatisfied with the administration of the trust. It is pointed out that the scheme is part of the decree passed under section 92 and that amendment of the scheme is the amendment of the decree which is not permissible except in terms of section 152 of the Civil Procedure Code which does not apply. Lastly it is contended that the Court cannot reserve to itself the power to amend its decree and that the provision reserving a power to this Court to modify the scheme is ultra vires and cannot be given effect to. The case of Veeraraghavachariar v. Advocate-General of Madras(1) is strongly relied on by the learned advocate for the opposite party. It was held by a Full Bench of the Madras High Court in that case that “If in a decree for a scheme framed under section 92, Civil Procedure Code, liberty is given to persons to apply to the court for directions merely to carry out the scheme already settled, such reservation of liberty in the decree will be intra vires if the assistance of the court can be given without offending against section 92; but where liberty is given to apply to the court for alteration or modification of the scheme, such reservation is ultra vires as offending against section 92” The ratio decidendi seems to be that reliefs of the nature described in section 92 can be sought only by instituting a suit in the manner laid down by that section and that it is not open to the court to allow one of those reliefs (viz., settling a scheme, which is involved in the alteration of a scheme already settled) being sought by an application only. It seems that this view lays too great, and if we may say so with respect, unnecessary stress on the right given to a person to apply for the alteration of a scheme previously settled. The real question is whether the court can reserve to itself the power to amend the scheme suo motu or otherwise. If the court can do so, the fact that it is moved by an interested person is of no importance. Where the court has a power, it may, to minimise the chances of frivolous motions being made, make it known that it will not exercise such power unless no less than two persons join in applying for the exercise of it. To our minds this is the only effect of the provision in the scheme which reserves to the court a power to amend it on an application being made by two persons interested in the trust. As already stated, the real question is whether the court had jurisdiction to retain a power to alter the scheme. We are unable to find anything in section gs which makes the reservation of a power to modify the scheme in future ultra vires. The power of the court to settle a scheme for the administration of a trust is sufficiently comprehensive to include a provision which makes the scheme alterable by the court if it is found necessary in future. We are not impressed by the argument that unless the suit under section 92 is taken to remain pending for all times, the exercise of the power to amend the scheme necessarily implies amendment of the decree. The suit must undoubtedly be deemed to have terminated with the passing of the decree which according to its definition implies a final adjudication of the rights of the parties to it. The settlement of a scheme is part of the adjudication and if the scheme is made elastic the finality of the adjudication is not affected. If the scheme is amended subsequently by the court within the limits laid down by the decree the court should be deemed to be giving effect to its own decree rather than amending it.

There is considerable authority against the view taken in the Madras case which was expressly dissented from in Chandraprasad Ramprasad v. Jinabharthi Narayan. Manadananda Jha v. Tarakananda Jha Pandu(2), Sadupadhya Umeshanand Oja v. Maharaja of Gidhour(3) and Mahomed Waheb Hussain v. Syed Abbas Hussain(4) are also authorities to the contrary. U Po Maung v. U Tun Pe(5) is not a case in point. The power to modify the scheme does not appear to have been reserved in that case. Shera Khan v. Bhure Shah is likewise not in point. In that case the scheme settled under section 92 appointed a committee of three persons, who were empowered to visit the shrine and to dismiss a mutwalli and appoint another in his place. This power was exercised by the committee, and the dismissed mutwalli applied to the court complaining against the action of the committee. The District Judge dismissed his application. On an application for revision from his order it was held by a Division Bench of this Court that the order of the District Judge was correct. There was no question as to whether a power reserved in the scheme prepared under section 92 could not be exercised, the reservation being ultra vires. An earlier case decided by this Court, Mohunt Darshan Das v. Collector of Meerut does not also touch the point. All that was held in that case was that the Code of Civil Procedure gives no power to the District Judge to take any action in order to protect property forming the subject-matter of a public endowment unless and until a regular suit is filed in his court under section 92. In that case the District Judge had appointed a trustee, and among the other directions given to him one was that he should file an account within a certain time. The order of the District Judge was not complied with, and the Judge prohibited the trustee from “having any further dealings with the property of the gaddi”, and a proclamation was issued in the villages belonging to the gaddi that no rents should be paid to the trustee. This extraordinary order of the District Judge was reversed in revision, by this Court.

For these reasons we are led to the conclusion that both on principle and authority it must be held that the provision reserving a power to the court preparing a scheme under section 92 to modify it is not ultra vires.

In so far as the present application seeks modification of the scheme, not in the exercise of the court's power reserved by the scheme itself, but wholly apart from it, we are of opinion that the only section in the Civil Procedure Code which can justify amendment of the scheme is section 151 of the Civil Procedure Code. Dr. Katju, the learned counsel for the applicant, referred us to certain dicta in English cases in which it was held that a court settling a scheme in relation to an endowment has inherent power to modify it subsequently and in ordinary circumstances. We put it to him whether that was not equivalent to exercise by a court in this country of its inherent power contemplated by section 151. The learned advocate agreed that the only rule of law to be found in the Civil Procedure Code under which the court could modify the scheme in the exercise of its inherent power was section 151. In our opinion the inherent power of the court to modify a scheme prepared by itself should be exercised where it is necessary to prevent abuse of the process of the court or where the ends of justice plainly demand it. In considering the merits of this application we shall bear in mind the comparatively narrow scope of section 151 where we are called upon to modify a scheme apart from the power reserved by paragraph 21 thereof. The result is that we repel the preliminary objection and proceed to dispose of the application on the merits.

Coming to the merits of the application we find that the main object of the applicants is to have the present gaddinashin removed from the offices of the president and a trustee. It is alleged in the affidavit that he has misappropriated large sums of money. A reference is particularly made to fourteen Government promissory notes which, it is said, have disappeared. It is quite clear that we cannot entertain an application for removal of the president or a trustee on the ground of misconduct. The scheme provides that if the office of a trustee falls vacant the other trustees shall fill up the vacancy by appointing a suitable person. There are provisions in the scheme for the removal of a trustee by the trustees themselves. It is impossible for this Court to entertain an application for the removal of the trustee conformably with the provisions of the scheme. The applicants were apparently alive to the difficulty on this score and have, therefore, applied for the modification of the scheme, so that if under the modified scheme the gaddinashin ceases to be the president ex officio the office is to be filled up by the trustees. Similarly if the scheme is amended as desired by the applicants, the gaddinashin will cease to be a trustee under the modified scheme. It is thus clear that it is only through a modification of the scheme that they can secure the removal of the gaddinashin from the offices of the president and a trustee. We have considered the scheme as a whole and find that it is an admirable scheme and is likely to work satisfactorily in normal circumstances and that no case has been made out for amending it in any respect. Assuming; as is alleged, that the present gaddinashin has not fulfilled the expectations which were formed of him by those interested in the trust, it is not the fault of the scheme. The merit of a scheme cannot be judged from ifs unsuccessful working in one or two instances, assuming such is the case in the present instance. For these reasons we decline to modify the scheme so as to provide that the gaddinashin shall not be the ex officio president of the Board of trustees and that he shall not by virtue of his office as gaddinashin be a, trustee. It is open to two or more persons interested in the trust to institute a suit under section 92, of course, with the permission of the Legal Remembrancer, for the removal of the gaddinashin from one or more of the positions he now occupies, for alleged misconduct. But assuming such allegation is well founded—a point on which we express no opinion—it does not justify the assumption that the general rule contained in the scheme has been found by experience to be unsatisfactory.

The next question is whether the provision in the scheme relating to the quorum requires any modification. As already stated, the scheme makes a quorum of three out of seven trustees necessary for the transaction of any business. This is a desirable rule and is not objected to. It is said that in so far as it provides no particular quorum for an adjourned meeting it should be amended so as to require the presence of at least three trustees on an adjourned meeting also. We do not think that such a provision is at all desirable. It is presumed that the trustees are persons interested in the endowment and are prepared to make some sacrifice of time. The scheme provides that in case a trustee ceases to attend meetings of the Board of trustees for a period of two years he renders himself liable to be removed by the other trustees. We think that this provision is sufficiently deterrent against habitual absence of trustees from meetings. Any provision requiring the presence of at least three members out of seven at all adjourned meetings is likely to work very unsatisfactorily on certain occasions and will in any case be conducive to delays.

The only other matter that requires consideration is the grievance of the applicants that no manager has been appointed as required by the scheme. This is emphatically denied by the opposite party. It is not necessary for us to inquire into the question of fact whether a manager has not been appointed as is alleged by the applicants. According to the scheme the Board of trustees should appoint a manager for the discharge of certain duties. If the Board has failed to discharge its obligation under the scheme, the proper remedy for the applicants is to take appropriate proceedings for the enforcement of such obligation. We cannot direct any more than what has been done by the scheme prepared by this Court, viz., that the Board of trustees should appoint a manager.

Lastly so far as our orders are sought in respect of the missing Government promissory notes and the misappropriation of funds, we are of opinion that no action can be taken by this Court on a miscellaneous application like the one before us. We cannot obviously pass any orders in that behalf in the exercise of our inherent jurisdiction, assuming we possess power in that connection, nor can we give any directions in respect of the proper management of the affairs of the temple.

The result is that this application fails and is dismissed with costs which we assess in all at Rs. 500.

Swami Rangacharya v. Ganga Ram

Summary of Opinion: Application to Modify Scheme for Rangji Temple (Brindaban)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Applicants' Arguments

Opposite Party's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Swami Rangacharya v. Ganga Ram

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