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PETITIONER: CHAIRMAN MADAPPA

       Vs.

RESPONDENT: M.   N. MAHANTHADEVARU AND OTHERS

DATE OF JUDGMENT: 11/10/1965

BENCH: WANCHOO, K.N. BENCH: 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

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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

JUDGMENT: 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.

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                           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 milch 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  for- cash 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."

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             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  direc- tions 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

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enquiries,  declaring what proportion of the trust  property or of the interest therein shall be allocated to any  parti- cular 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 trust- property 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  adminis- tration  of trust-property is in any way  affected  thereby. If  this  were so, it would make  administration  of  trust- property  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

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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  co- manager.  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 co- 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.   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. 158