Chairman Madappa Vs. M. N.
Mahanthadevaru & Ors [1965] INSC 211 (11 October 1965)
11/10/1965 WANCHOO, K.N.
WANCHOO, K.N.
GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1966 AIR 878 1966 SCR (2) 151
ACT:
Code of Civil Procedure, 1908 (5 of 1908) ss.
91(1), cl.(f), 92--Religious Endowment-Scheme Settled appointing joint managers
with liberty to seek court's directions on necessity-One manager seeks
directions-Whether court can direct cl. (f) if bars.
HEADNOTE:
In a suit under s. 92 of the Code of Civil
Procedure, a decree was passed settling a scheme in respect of a muth, Under
para (11) of the scheme two persons were appointed as joint managers, and under
para. (12) they were given liberty to apply for directions to the District
Court as and when occasion arose for carrying out the scheme. The respondent
one of the two managers appointed under the scheme, made an application to the
District Judge seeking direction to sell cattle and cultivation rights of lands
belonging to the muth. In spite of objections by the appellant, the other
manager, the District Judge directed the sale. The appellant unsuccessfully
appealed to the High Court. In appeal to this Court the appellant contended
that in view of s. 92(1)cl. (f) of the Code of Civil Procedure the District
Judge had no jurisdiction to make the order; on the other hand the respondent
relied on paras (11) and (12) of the scheme to support his contention that the
District Judge had jurisdiction.
HELD : It is open in a suit under s. 92 of
the Code for the settlement of a scheme to provide in the scheme itself for
modifying it whenever necessary by inserting a clause to that effect. A suit
for the settlement of a scheme is analogous to an administration suit and so
long as the modification in the scheme is for the purpose of administration
such modification could be made by an application under the relevant clause of
the scheme, without the necessity of a separate suit under s. 92 of the Code
the provisions of which were not violated by such a procedure.
[153 G-H] Raja Anandrao v. Shamrao, [1961] 3
S.C.R. 930, followed.
The District Judge had jurisdiction to give
directions under paras (11) and (12) of the scheme, as these directions were of
the nature of ordinary administration of trust-property and they did not fall
within cl. (f) in s. 92(1) of the Code. [155 B] Clause (f) in s. 92(1) cannot
be read in such a way as to hamper the ordinary administration of trust
properties by trustees or managers thereof; and so there can be no invalidity
in a provision in the scheme which directed the trustee or managers, or even
one out of two managers when they cannot agree, to obtain directions of the
court with respect to the disposal or alienation of the property belonging to
the trust. Clause (f) did not apply to the circumstances of this case and no
suit under S. 92 was necessary in consequence. [157 E-F] Whether the direction
could be sought by persons other than trustees or managers was not considered.
[157 C] 152
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 957 of 1963.
Appeal by special leave from the judgment and
order, dated April 15, 1961 of the Mysore High Court in Civil Revision Petition
No. 499 of 1960.
V. Krishnamurti and R. Gopalakrishnan, for
the appellant.
B. D. Jain, for respondents Nos. 1 and 2.
Wanchoo, J. This is an appeal by special
leave against the judgment of the Mysore High Court. Brief facts necessary for
present purposes are these. There is a muth in village Davanur. A suit was
brought in 1942 under S. 92 of the Civil Procedure Code for framing a scheme
for the management of the muth. A decree was passed on March 17, 1948 by the
High Court by which a scheme was settled and two persons were appointed as
joint managers thereunder. In 1959 the two managers were the appellant Madappa
who was the chairman and the respondent Mahanthadevaru. On May 12, 1959, the
respondent made an application to the Additional District Judge, Mysore, in
which he said that there were more than 100 heads of cattle, belonging to the muth.
But the estimated income of the properties was barely sufficient to meet the
cost of worship of the deity and that no funds were available to maintain the
cattle. He also said that it was unnecessary and expensive to incur the feeding
charges and pay for the staff needed to take care of the cattle. He therefore
prayed for an order for the sale of cattle as a measure of economy and
practical utility. Further it appears that there were some lands belonging to
the muth, which were being cultivated through servants. It was suggested in
this application that the lands might be leased out for cultivation for one
year by public auction for cash consideration in order to increase the income
of the muth.
On this application, notice was issued to the
appellant. He objected that the application had been made without consulting
him. He also objected to the sale of the cattle, his reason being that their
upkeep did not involve any expenditure and that they were necessary for the
supply of milk to the muth and also as the chief source of manure for the
lands. He also added that it would be sacrilegious to sell them away. He
further objected to the leasing out of the lands of the muth year by year on
the ground that according to the existing practice, lands of the muth were
being cultivated and the crops harvested by the people of the village and there
was no expenditure to the muth in that behalf.
153 It appears that thereafter there were
consultations between the two managers in order to meet the charge that the
respondent had, not consulted the appellant before making the application. But
the two managers were unable to agree.
Thereupon the Additional District Judge heard
both parties, and by his order, dated June 7, 1960, directed that keeping
hundreds of cattle with no proper arrangements to look after them would result
in great loss to the muth. He therefore ordered that ten milk cows might be
retained for the use of the muth for the purpose of milk and the remainder sold
by public auction. As to cultivation of lands, the Additional District Judge
was of the view that by the method of carrying on cultivation with the
cooperation of villagers the muth stood to lose. He therefore ordered that the
right of cultivation of lands belonging to the muth be sold forcash from year
to year.
Thereupon the appellant went in revision to
the High Court.
Apart from challenging the correctness of the
order made by the, Additional District Judge, the appellant further contended
that the Additional District Judge had no jurisdiction to make such an order in
view of the provisions of s. 92(1) cl. (f) of the Code of Civil Procedure. The
High Court held in view of paragraphs (11) and (12) in the scheme that the
Additional District Judge had jurisdiction to pass the order which he did. Further
it refused to interfere with the discretion exercised by the Additional,
District Judge in the matter. The appellant then obtained special-, leave from
this Court; and that is how the matter has come up before us.
The only point urged on behalf of the
appellant is that in view of s. 92(1), cl. (f) of the Code of Civil Procedure
the Additional, District Judge had no jurisdiction to make the order which he
did. The respondent on the other hand relies oil paras (11) and (12) of the
scheme for the contention that the Additional District Judge had jurisdiction
in the matter.
It is now well-settled by the decision of
this Court in Raje Anandrao v. Shamrao(1) that it is open in a suit under s.
92for the settlement of a scheme to provide
in the scheme itself for modifying it whenever necessary by inserting a clause
to that effect. It is also settled that a suit for the settlement of a scheme
is analogous to an administration suit and so long as the modification in the
scheme is for the purpose of administration, such (1) (1961) 3 S.C.R. 930.
154 modification could be made by an
application under the relevant clause of the scheme, without the necessity of a
separate suit under s. 92 of the Code of Civil Procedure the provisions of
which were not violated by such a procedure.
The principle of this decision will apply in
the present case which is concerned with the ordinary administration of the
muth.
Paragraph (11) of the scheme provides for the
appointment of two managers for a period of five years who will be eligible for
-reappointment. One of the managers appointed under the scheme of 1948 was the
then first defendant in the suit of 1942. The last part of para. (11) is in
these terms -"If the first defendant neglects or refuses to cooperate with
his co-manager, the co-manager or any two of the veerashaivas interested in the
institution may apply for necessary directions to the court." Paragraph
(12) reads as follows "The parties herein or any two veerashaivas
interested in the institution and either of the managers are at liberty to
apply for directions to the District Court as and when occasion arises for
carrying out the scheme." The contention on behalf of the respondent is
that these two provisions have clearly reserved power in the District Court to
give directions for carrying out the scheme whenever occasion arises for the
same. It is contended that by these provisions power 'was reserved in the
District Court to give directions as to the ordinary administration of the muth
in order to carry out the purposes of the scheme. We are of opinion that this
contention on behalf of the respondent is correct. We cannot accept the
contention on behalf of the appellant that these paragraphs merely provide for
carrying out nitya poojas and vishesh poojas mentioned in the scheme and
nothing else. The generality of the words used in these paragraphs clearly show
that power was reserved in the scheme to get directions of the court for the
ordinary administration of the muth from time to time and that such directions
could be sought amongst others by either of the co-managers. We are further of
opinion that it cannot be disputed in the present case that the directions
asked for by the respondent were in the nature :of directions for the ordinary
administration of the muth. It is obvious that in order to carry on the
ordinary administration of 155 an institution like the present, the managers
have the power to disPose of movable property and to deal with lands in such
manner as 'to maximise the income of the muth.
Therefore, when the respondent asked for
directions of the court in the interest of, economy and practical utility for
the sale of cattle and for selling the right of cultivation of lands from year
to year on payment of cash, he was only asking for directions in connection
with the ordinary administration of the muth, and the court would have power
under these paragraphs of the scheme. to give such directions as it thought
necessary for that purpose.
Let us now see if there is anything in s.
92(1) cl. (f) which. prohibits the giving of such directions even if there is a
provision, to that effect in the scheme. Section 92(1) provides for two class.
of cases, namely, (i) where there is a breach of trust in a trust created for
public purposes of a charitable or religious nature, and (ii) where the
direction of the court is deemed necessary for the administration of any such
trust. The main purpose of s. 92(1) is, to give protection to public trusts of
a charitable or religious nature from being subjected to harassment by suits
being filed against them. That is why it provides that suits under that section
can only be filed either by the Advocate General, or two or more persons having
an interest in-the trust with the consent in writing of the Advocate General. The
object clearly is that before the Advocate General files a suit or gives his
consent for filing a suit under s. 92, he would satisfy himself that there is a
prima facie case' either of breach of trust or of the necessity for obtaining
directions of the court. The reliefs to be sought in a suit under s. 92(1) are
indicated in that section and include removal of any trustee, appointment of a
new trustee, vesting of any property in a trustee,. directing a removed trustee
or person who has ceased to be a trustee to deliver possession of trust
property in his possession to the person entitled to the possession of such
property, directing accounts and enquiries, declaring what proportion of the
trust property or of the interest therein shall be allocated to any particular
object of the trust, authorisation of the whole or any part of the
trust-property to be let, sold, mortgaged or exchanged, or settlement of a
scheme. The nature of these reliefs will show that a suit under s. 92 may be
filed when there is a breach of trust or when the administration of the trust
generally requires improvement. One of the reliefs which can be sought in such
a suit is to obtain the authority of the court for letting, selling, mortgaging
or exchanging the whole or any part of the property of the trust, as provided
in cl. (f) of the reliefs.
LSup. CI/66-11 156 We are however of opinion
that prayer for such a relief though permissible in a suit under S. 92 does not
in any way circumscribe or take away from trustees or managers of public trusts
the right of ordinary administration of trustproperty which would include
letting, selling, mortgaging or exchanging such property for the benefit of the
trust. We cannot infer from the presence of such a relief being provided in a
suit under s. 92(1) that the right of trustees or managers of the trust to
carry on the ordinary administration of trust-property is in any way affected
thereby.
If this were so, it would make administration
of trustproperty by trustees or managers next to impossible. This will be clear
from a few examples which we may give.
Suppose there is a lot of odds -and ends
accumulated and the trustees or managers of a public trust want to dispose of
those odds and ends if they are of no use to the trust. If the interpretation
suggested on behalf of the -appellant is accepted, the trustees or managers
could not sell even -such odds and end's without filing a suit for authorising
them to -sell such movable property. Obviously this could not have been -the
intention behind cl. (f) in S. 92(1). Take another case where -the public trust
has a good deal of land and arranges to cultivate 'it itself and gets crops
every half year. If the produce is not all required for the trust and has to be
sold, the presence of cl. (f) in s. 92 (1) does not require that every half
year a suit should be filed by trustees or managers with the permission of the
Advocate General to sell such crop. The absurdity of the argument on behalf of
the appellant based on cl. (f) of S. 92(1) is therefore obvious and that clause
does not in our opinion have the effect of circumscribing the powers of
trustees or managers to carry on ordinary administration of trust property and
to deal with it in such manner as they think best for the benefit of the trust
and if necessary even to let, sell, mortgage or exchange it. It seems that cl.
(f) was put in inter alia to give power to court to permit lease, sale,
mortgage or exchange of property where, for example there may be a prohibition
in this regard in the trust deed relating to a Public trust. There may be other
situations where it may be necessary to alienate trust property which might
require court's sanction and that is why there is such a provision in cl. (f)
in s. 92(1). But that clause in our opinion was not meant to limit in any way'
the Power of trustees or managers to manage the trust property to the. best
advantage of the trust and in its interest, and if necessary, even to let,
sell, mortgage or exchange such property. Further if cl. (f) cannot be read to
limit the powers of trustees or managers to manage the trust-property in the
interest 157 of the trust and to deal with it in such manner as would be to the
best advantage of the trust, there can be no bar -to a provision being made in
a scheme for directions by the court in that behalf. If anything, such a
provision would be in the interest of ;he trust, for the court would not give
directions to let, sell, mortgage or exchange the trust property or any part
thereof unless it was clearly in the interest of the trust. Such a, direction
can certainly be sought by the trustees or managers or even by one manager out
of two if they cannot agree, and there is nothing in cl. (f) in our opinion
which militates against the provision in the scheme for obtaining such
direction. We may add that we say nothing about obtaining of such directions by
persons other than managers or trustees, for this is not a case where the
direction was sought by a person other than a comanager. Whether such a
direction can be sought by persons other than trustees or managers or one of
two managers as provided in paras (11) and (12) of the scheme is a matter which
does not arise for consideration in the present case and we express no opinion
thereon. We are dealing with a case where the prayer is made by one trustee and
the order passed thereon relates to matters which are incidental to acts of
management of the trust-property and we have no doubt that cl. (f) in s. 92(1)
cannot be read in such a way as to hamper the ordinary administration of
trust-properties by trustees or managers thereof; and if that is so, there can
be no invalidity in a provision in the scheme which directs the trustees or
managers or, even one out of two comanagers when they cannot agree to obtain
directions of the court with respect to the disposal or alienation of the
property belonging to the trust. We are therefore of opinion that cl. (f) does
not apply to the circumstances of this case and no suit under s. 92 was
necessary in consequence. The Additional District Judge had jurisdiction to
give directions which he did under paras (11) and (12) of the scheme, as these
directions are of the nature of ordinary administration of trust-property and
do not fall within cl. (f) in s. 92(1) of the Code of Civil Procedure.
In the view that we have taken, the High
Court was right in holding that the Additional District Judge had jurisdiction
in the matter. The appeal therefore fails and is hereby dismissed with costs,
which will be paid by the appellant personally.
Appeal dismissed.
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