http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: RAJE ANANDRAO

       Vs.

RESPONDENT: SHAMRAO AND OTHERS.

DATE OF JUDGMENT: 23/02/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1961 AIR 1206            1961 SCR  (3) 930  CITATOR INFO :  E&D        1964 SC 107  (15,20)  RF         1966 SC 878  (6)  F          1990 SC 444  (7)

ACT: Religious   Endowment-Suit  Under  S.  92,  C.   P.C.-Scheme Providing  for modification in future-Modifications, if  can be  made  by  application or  separate  suit-Code  of  Civil Procedure, 1908 (V if 1908), S. 92.

HEADNOTE: The  appellant  was the trustee of a temple,  which  was  an endowment   for  the  public  by  his  ancestors,  and   the respondents   were  its  Pujaris  with  hereditary   rights. Dissatisfaction  with  the management of the  temple  having arisen a suit under s. 92 of the Code of Civil Procedure was filed in which it was finally decided that the office of the Pujaris was hereditary and they were subject to the  control of  the appellant.  Some of the Pujaris were not parties  to the suit but they were bound by the scheme framed therein as members  of  the  worshiping  public.   Subsequently   again trouble arose and on the report of a commissioner  appointed to investigate the working of the temple, the District Judge passed  an  order by which he revised the scheme  which  was then  in  force.   The Pujaris went to  the  High  Court  in revision which was allowed.  On appeal by special leave  the main  question arising for decision was how far it was  open to  the Court to amend a scheme once framed under S.  92  of the  Code  of  Civil Procedure where a power  to  amend  the scheme is reserved in the Scheme itself. Held,  that  in a suit under S. 92 for the settlement  of  a scheme it was open to provide in the scheme for modifying it whenever necessary by inserting a clause to the 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  can  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 are not violated by such a procedure. Chandraprasad  Ramprasad  v.  jinabharthi’   Narayanabharthi (1931) I.L.R. 55 Bom. 414, Sri Swami Rangacharya v. Gangaram

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

(1936)  I.L.R.  58 All. 538, Umeshananda Dutta  Jha  v.  Sir Ravaneswar Prasad Singh (1912) 17 C.W.N. 841, Manadnanda Jha v.  Tarakananda  Jha  Panda A.I.R.  1924  Cal.  330,  Srijib Nyayatitha  v. Sreemant Dandy Swami jagannath Ashram  A.I.R. 1941  Cal. 618, Mahomed Waheb Hussain v..Syed Abbas  Hussain A.I.R. 1923 Pat. 420 and Gangaram Govind Pashankar v. Sardar K. R. Vinchurkar I.L.R. [1947] Bom. 466, approved. Prayaga  Doss  Jee Varu v. Tirumala  Anandam  Pillai  Purisa Sriranga Charylu Yaru (1907) L.R. 34 !.A. 78 and Sevak 931 Kirpashanker  Daje v. Gopal Rao Manohar Tambekar  (1913)  24 M.L.J. 199, referred to. Veeraraghavachariar v. The Advocate-General of Madras [1928] I.L.R. 51 Mad. 31, disapproved. A  suit under s. 92 is  a representative suit and binds  not only  the  parties  to  the  suit  but  all  those  who  are interested  in  the trust.  The mere fact that  the  Pujaris were  not  parties  to  the suit would  not  take  away  the jurisdiction of the District Judge to modify the scheme,  if the  modification was with respect to the administration  of the trust and if it did not affect the private rights of the Pujaris.

JUDGMENT: CIVIL APPELLATE JURISDICTION :Civil Appeal No. 370 of 1956. Appeal  by special leave from the judgment and  order  dated November 25, 1955, of the former Nagpur High Court, in Civil Revision No. 333 of 1954. A.   V. Viswanatha Sastri, Shankar Anand and Ganpat Rai, for the appellant. W.   S.   Barlingay   and  A.  G.   Ratnaparkhi,   for   the respondents. 1961.  February 23.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment  of  the  Nagpur  High  Court.   The  brief   facts necessary  for  present  purposes are  these:  There  is  an ancient  temple  of Balaji at Deolgaon Raja in  the  Buldana District.   Before 1866 the management of the temple was  in the  hands of a family bearing the name of Lad.  A suit  was filed  in 1866 with respect to this temple by Raje  Mansingh Rao  under the guardianship of his mother for a  declaration that  the temple was his property.  The defendants  in  that suit  were  certain pujaris.  The suit was  decreed  by  the first  court but on appeal it was held that the  temple  was not  the private property of the Raja but was  an  endowment for the public founded by the ancestors of the Raja and that the  Raja  was  entitled  as  against  the  pujaris  to  the possession  and control of the institution.  A receiver  was appointed during the minority of the Raja but in due  course the Raja took over the direct management of the temple.   In 1872  it seems that there was some dispute between the  Raja and  the pujaris whose offices were also hereditary; and  an agreement 932 was  arrived  at  between them.  By this  agreement  it  was provided  that any offerings up to Rs. 5/- would go  to  the pujaris  who were to defray the expenses of dhoop, deep  and neivedya from this amount keeping the balance to themselves. There  were also certain provisions in the agreement  as  to offerings  in kind.  The agreement also provided  for  other matters  relating to worship and imposed certain  duties  on the  pujaris.  Finally, it provided that the parties  should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

carry  on all the duties stated in the agreement  and  other duties besides them as before according to the usual wahiwat and that earnings would be taken as stated in the  agreement arid  proper arrangement of expenses would be kept  and  the pujaris  would take all possible care not to take more  than what  was fixed in the agreement.  This agreement  seems  to have held the field thereafter till we come to 1904. It seems that there was dissatisfaction with the  management of  this temple by Raje Anandrao and in consequence  a  suit was filed after obtaining permission of the Advocate-General in  February, 1904, for framing a scheme for the  management of  the temple.  This suit was finally decided on April  29, 1916,  by the Additional Judicial Commissioners.   They  set aside  the order of the trial court for the removal of  Raje Anandrao from the management by declaring that the right  to manage  the  affairs of the shrine which was an  office  was hereditary in the family of the Raja; but they further  held that a scheme should be framed providing-               "(i)  for the management of the trust  pending               any dispute as to who is the present holder of               the office of trustee and manager;               (ii)  for  the management of the trust  during               the minority of the appellant if he should  be               established to be the present Raja;               (iii)  for the continuance of control  by  the               Court  after the present hereditary  incumbent               enters  upon the office of manager sui  juris;               and               (iv)  for the modification of the scheme  from               time to time as circumstances may demand.  " In  consequence the matter went back to the  District  Judge who framed a, scheme on February 16,1918, for 933 the  management  of  the  temple.   This  scheme  was  later substituted  by  another  scheme dated  November  25,  1926. Finally,  on October 16, 1935, another scheme was framed  in substitution  of that framed in 1926.  It may  be  mentioned that  the pujaris as such were not parties to this  suit  in which  the scheme was framed, though they would be  as  much bound  by  it as members of the worshipping  public  as  the parties  to  it.  It seems that about that  time  there  was another  suit  pending  in  the  court  of  the   Additional Subordinate Judge, 11 Class, Buldana, between the  appellant and  the pujaris.  That suit was decided on April 30,  1936, and it was held therein that the agreement of 1872 which was binding  on  the  appellant recognised that  the  office  of pujari  was hereditary.  It was also held that  the  trustee (namely,  the Raja) was entitled to control the  pujaris  in the exercise of their rights and to see, that they performed their duties properly.  In other words it was held that  the pujaris  were  entitled to retain their office  during  good behaviour.   It was also held that the hereditary nature  of their right had not invested them with any immunity from all control and they were not entitled to act with impunity  and yet  retain  their office.  It was further  held  that  they could  not  establish a right to enjoy the fruits  of  their office  though absolutely incompetent to do so.  Further  it was  held  that  the  power of dismissal  in  the  event  of misbehaviour  undoubtedly belonged to the Raja but  that  it should not be lightly exercised and should be subject to the control  of the District Judge.  Finally it was  made  clear that  the  Raja had no right to dispose of any part  of  the income  of the pujaris nor had he any right to interfere  in matters  of succession amongst them.  The office  of  pujari was thus held to be here-ditable unless there was misconduct

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

or  misbehaviour  which caused  forfeiture.   A  declaratory decree  was therefore passed to the effect that the  pujaris who  were  defendants in that suit were  holding  hereditary office  of the pujaris of Shree Balasaheb Sansthan and  that they  were in the discharge of their duties subject  to  the control  of the plaintiff (namely, the Raja) and  they  were bound to respect his authority and rightful 934 orders  and  that  they held their office  subject  to  good behaviour. Next we come to the year 1953.  It seems that there was some trouble  in the temple and consequently the  District  Judge visited the place on November 30, 1953.  At that time it was agreed  that a Commissioner with wide terms of reference  be appointed  to investigate the working of the. temple  vis-a- vis  the pujaris, the trustee and the general public and  he should  report how far the present scheme was working,  what were the defects and shortcomings and what new proposals  or alterations in the scheme and in the agreement of 1872  were necessary  in  the light of the working till  then  and  the changed circumstances.  Many of the pujaris-respondents  who were  present  on that date were agreeable to  this  course. Eventually, the Commissioner reported to the District  Judge and  objections were called to that report.  The matter  was then  gone into and the District Judge passed an  order  on, April  12,  1954, by which he revised the scheme  which  had been in force since 1935. Thereupon the pujaris went in revision to the High Court and their  contention  was  that the District  Judge  bad  acted beyond his jurisdiction in revising the scheme in so far  as it  affected  them.  The High Court went into  the  question whether  the  District  Judge had any power  to  modify  the scheme and came to the conclusion that if the matters sought to  be introduced by modification of the scheme are  covered by s. 92 of the Code of Civil Procedure, an application  for modification is not the appropriate remedy.  It further held that unless the power reserved to the court under the scheme is  invoked  for  a purpose analogous to  execution  of  the decree, no modification of the scheme was possible under  s. 92.  It therefore held that unless the rights of any persons were the subject of lis, the scheme could not be modified so as to affect them except by a suit under s. 92.  Finally, it came to the conclusion that as the pujaris were not  parties to the suit of 1904 or to the scheme that was framed, it was not  possible  to modify the scheme so as  to  affect  their rights without recourse to s. 92.  The 935 revision was therefore allowed and the scheme framed by  the learned District Judge was ordered to be read subject to the order of the High Court.  Thereafter  an  application was made by  the  appellant  to appeal  to  this Court, which was later  converted  into  an application   for  review  of  the  earlier   order.    This application  was  rejected.  Then the appellant  applied  to this Court for special leave and obtained the same; and that is how the matter has come up before us. The  main question that arises in this appeal is how far  it is open to a court to amend a scheme once framed under s. 92 of  the Code of Civil Procedure, where a power to amend  the scheme  is  reserved  in  the  scheme  itself.   It  is  not seriously disputed in this case that the power to amend  the scheme  has  been reserved in view of the  judgment  of  the Additional Judicial Commissioners already set out above  and paragraph 17 of the scheme dated October 16, 1935.  The High Court  has hold that as the pujaris were not parties to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

suit  under s. 92, the scheme could not be amended so as  to affect  their rights, for even where a power is reserved  in the  scheme  to modify it, it could only be  invoked  for  a purpose  analogous  to  execution of a decree.   It  is  the correctness  of this view which has been  challenged  before us. The  leading case in support of the view taken by  the  High Court  is  Veeraraghavachariar v.  The  Advocate-General  of Madras (1).  It was held in that case that--               "if  in a decree for a scheme framed under  s.               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               s. 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 s. 92." On the other hand the leading case taking the opposite  view is Chandraprasad Ramprasad v. Jinabharathi Narayana bharathi (2).  In that case the scheme  (1) (1928) I.L.R. 51 Mad. 31. (2) (1931) I.I.R. 55 Bom. 414 936 authorised  the District Court to remove a trustee and  also to alter or amend the scheme upon an application of a  party interested  or  on its own initiative  after  giving  public notice.   An application was made to the District Court  for the removal of certain trustees and for the modification  of the scheme.  The District Judge dismissed the application on the ground that the proper remedy of the applicant was by  a separate  suit under s. 92 of the Code of  Civil  Procedure. On  appeal, however, the High Court held that  the  District Court was competent to grant the reliefs asked by virtue  of the  powers conferred upon it under the rules of the  scheme and  that no separate suit under s. 92 of the Code of  Civil Procedure  was  necessary.  Further it held  that  the  rule which gave power to the court which sanctioned the scheme to alter or modify it was not ultra vires. The  view taken by the Bombay High Court as to the power  to modify  the scheme by application if such power is  reserved in the scheme has been followed by the Allahabad High  Court in Sri Swami Rangacharya v. Gangaram (1).  The Calcutta High Court  has  also  accepted the view that where  there  is  a provision  in  a  scheme  for its  modification  it  can  be modified  by an application: (see Umeshananda Dutta  Jha  v. Sir   Ravaneswar  Prasad  Singh  (2)  Manadananda   Jha   v. Tarakananda  Jha  Panda  (3  )  and  Srijib  Nyayatirtha  v. Sreemant Dandy Swami Jagannath Ashram (4)).  The Patna  High Court also in Mahomed Waheb Hussain v. Syed Abbas Husain (5) held the same view.  In Gangaram Govind Pashankar v.  Sardar K. R. Vinchurkar (6), the Bombay High Court has gone further and  held that the court had inherent power under s. 151  of the  Code of Civil Procedure to alter a scheme even  in  the absence   of   a  clause  giving  liberty   to   apply"   if circumstances   have  subsequently  arisen  which  make   it desirable for it to be altered to meet the ends of justice. Reference  was  also  made to two  decisions  of  the  Privy Council.  In Prayaga Doss Jee Varu v. Tirumala (1)  (1936) I.L.R. 58 All. 538. (2)  (1912) 17 C.W. N. 841. (3)  A.I.R. 1924 Cal. 330. (4)  A.I.R. 1941 Cal. 618,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

(5)  A.I.R. 1923 Pat. 420. (6)  I.L.R. [1947] BOM. 466. 937 Anandam  Pillai Purisa Sriranga Charylu Varu (1), the  Privy Council  itself framed a scheme and one of the terms in  the scheme  was that liberty was reserved to persons  interested from  time  to  time  to apply to the  High  Court  for  any modification  of the scheme that may appear to be  necessary or  convenient.   Similarly, in Sevak Kirpashanker  Daji  v. Copal  Rao Manohar Pambekar(2 ),the scheme which was  framed by  the  Privy Council in that case contained in  cl.  20  a direction  that  the  provisions  of  the  scheme  might  be altered,  modified  or  added to by an  application  to  His Majesty’s  High Court of Judicature at Bombay.  It  is  true that  in these cases, the Privy Council was not  considering whether such a clause could be legally inserted in a  scheme ;  but the fact remains that in these two schemes the  Privy Council  did  insert  a  clause  in  each  authorising   its modification by an application to the High Court. Apart  from  authorities, however, let us see  if  there  is anything  in  s.  92 of the Code of  Civil  Procedure  which militates  against  providing a clause in  a  scheme  framed thereunder  for  its modification by an application  to  the court framing the scheme.  Section 92 permits a suit in  the case  of any alleged breach of any express  or  constructive trust  created  for  public  purposes  of  a  charitable  or religious  nature  or where the direction of  the  court  is deemed necessary for the administration of any such trust to 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.   Reliefs  that  can  be obtained under that section are- "(a) removing any trustee; (b)  appointing a now trustee (c)  vesting any property in a trustee; (cc)  directing a trustee who has been removed or  a  person who  has ceased to be trustee, to deliver possession of  any trust  property in his possession to the person entitled  to the possession of such property; (d)  directing accounts and inquiries; (1) (1907) L.R. 3 T.A. 78 (2) [1913] 24 M.L.J 199. 938 (e)  declaring  what proportion of the trust property or  of the  interest therein shall be allocated to  any  particular object of the trust; (f)  authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g)  settling a scheme; or (h)  granting such further or other relief as the nature  of the case may require. Further  sub-s. (2) of s. 92 bars a suit claiming the  above reliefs  unless  the  suit is filed in  conformity  with  s. 92(1).  In the present appeal we are concerned only with the modification  of  a  scheme;  we  are  not  concerned   with appointment  or  removal  of trustees or  any  other  matter enumerated  in  sub-s. (1) of s. 92.  We  do  not  therefore propose  to consider whether it would be open to appoint  or remove  trustees  etc.,  on the ground of  breach  of  trust without  recourse to a suit under s. 92.  We  shall  confine ourselves only to the question whether in a case where there is  a  provision in the scheme for its  modification  by  an application  to the court, it is open to the court  to  make modifications therein without the necessity of a suit  under s.  92.   So  far  as the scheme is  concerned,  s.  92  (1)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

provides for settling a scheme and if a suit is brought  for this  purpose it has to comply with the requirements  of  s. 92(1);  but where such a suit has been brought and a  scheme has  been settled, we see nothing in s. 92 (2)  which  would make  it  illegal for the court to provide a clause  in  the scheme  itself for its future modification.  All  that  sub- section provides is that no suit claiming any of the reliefs specified in sub-s. (1) shall be instituted in respect of  a trust  as is therein referred to except in  conformity  with the   provisions  of  that  subsection.   This   sub-section therefore does not bar an application for modification of  a scheme  in accordance with the provisions thereof,  provided such  a provision can be made in the scheme  itself.   Under sub-a. (1) the court has the power to settle a scheme.  That power  to  our mind appears to be  comprehensive  enough  to permit  the  inclusion of a provision in the  scheme  itself which would make it alterable by the court if and 939 when found necessary in future to do so.  A suit under a. 92 certainly  comes to an end when a decree is passed  therein, including the settlement of a scheme for the  administration of  the  trust.  But there is nothing in the fact  that  the court can settle a scheme under s. 92(1) to prevent it  from making  the scheme elastic and provide for its  modification in  the scheme itself That does not affect the  finality  of the  decree;  all that it provides is that  where  necessity arises a change may be made in the manner of  administration by the modification of the scheme.  We cannot agree that  if the  scheme is amended in pursuance of such a clause in  the scheme  it will amount to amending the decree.   The  decree stands as it was, and all that happens is that a part of the decree  which  provides for management under the  scheme  is being  given effect to. it seems to us both appropriate  and convenient that a scheme should contain a provision for  its modification,  as that would provide a speedier  remedy  for modification  of the manner of administration  when  circum- stances arise calling for such modification than through the cumbrous procedure of a suit. In Veeraraghavachariar’s case (1), the Madras High Court was cognizant of the two decisions of the Privy Council in which clauses  had been inserted in the scheme providing  for  its modification by an application.  But the learned judges were of  the  view  that the point was  never  raised  much  less decided  by the Privy Council and therefore it could not  be said  that the Privy Council was of the opinion that such  a clause  would be intra vires.  They thought  that  inserting such a clause in the scheme would imply that the suit  would remain pending for ever.  It is not necessary to hold that a suit under s. 92 in which a scheme is framed providing  such a  clause  is pending for ever.  The scheme deals  with  the administration  of  the trust and for the  purposes  of  the scheme  it  would not be wrong or improper to treat  a  suit under s. 92 as analogous to an administration suit.  On that view  it  would  in our opinion be just  and  convenient  to provide  for a clause in the scheme which is framed for  the administration (1)  (1928) I.L.R. 51 Mad. 31. 940 of   the  trust  to  allow  for  its  modification   by   an application.   We therefore accept the view of  the  Bombay, Calcutta, Allahabad and Patna High Courts in this matter and hold that it is open in a suit under s. 92 where a scheme is to  be settled to provide in the scheme for modifying it  as and  when  necessity arises, by inserting a clause  to  that effect.   Such  a  suit for the settlement of  a  scheme  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

analogous  to  an  administration suit and so  long  as  the modification   in  the  scheme  is  for  the   purposes   of administration, such modification can be made by application under  the  relevant  clause  of  the  scheme,  without  the necessity  of  a  suit  under s. 92 of  the  Code  of  Civil Procedure.  Such a procedure does not violate any  provision of  s.  92.  The view taken by the Madras  High  Court  that insertion  of  such  a clause for the  modification  of  the scheme  is ultra vires is incorrect.  It was therefore  open to  the  District Judge in the present case  to  modify  the scheme. The  next question is whether the modification in this  case is for the purposes of administration alone for then it will be  justified  and within jurisdiction or  whether  by  this modification  the private rights of the pujaris are  in  any way affected.  It is true that the pujaris were not  parties to the suit under s. 92 but the decision in that suit  binds the  pujaris as worshippers so far as the administration  of the  temple is concerned, even though they were not  parties to  it, for a suit under s. 92 is a representative suit  and binds  not  only the parties thereto but all those  who  are interested in the trust.  Therefore, the mere fact that  the pujaris  were no parties to the suit will not take away  the jurisdiction of the District Judge to modify the scheme,  if the  modification is with respect to the  administration  of the  trust and if it does not affect the private  rights  of the pujaris.  According to the High Court, the  modification in  the  scheme was only with respect to  three  paragraphs, namely,  paragraphs  3, 4 and 12.  Learned counsel  for  the pujaris  has  admitted  that there  is  no  modification  in paragraph  4.  This  is  also clear  from  a  comparison  of paragraph  4  of, the 1935 scheme with paragraph  4  of  the revised scheme, for the two paragraphs are word for word the same, So 941 we  are left with the modification in paragraphs 3  and  12. Paragraph 3 originally provided that " the managing  trustee shall  have  authority to regulate the  performance  of  the pooja  according to usage which is not in any way  repugnant to  public  interest  and  morals ", and  to  this  part  of paragraph  3, the revised scheme adds the words " but  which encourages  the use of vedic yagnik ". Learned  counsel  for the  pujaris admits that there can be no objection  to  this addition,  for it only brings out what was implicit  in  the old  scheme.   Further  the following addition  is  made  to paragraph 3 in the revised scheme:-               "The  rules may provide, inter alia, that  the               persons actually doing the worship should have               the requisite knowledge of the mantrik  ritual               and  in case any one has not  such  knowledge,               the actual worship and ritual may be performed               by his substitute having such knowledge and he               may  not be allowed to do the worship  himself               These  rules  will be  printed  and  published               locally and shall be enforced by the trustee." Now  the old paragraph 3 also provided for framing of  rules with  the approval of the District Judge after  hearing  the public  and the pujaris, for the worship of the deity.   The revised paragraph 3 also contains a direction regarding  the making of such rules with the approval of the District Judge after  hearing the public and the pujaris.  It  has  further been  provided  that  such  rules  should  be  printed   and published  locally  and should be enforced by  the  trustee. There  can in our opinion be no objection to this  addition, for the enforcement of the rules was already implicit in old

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

paragraph  3  and their printing and publication is  only  a matter  of convenience to all and can in no way  affect  the private  rights  of the pujaris.  Learned  counsel  for  the respondents  did  not object to this  addition  either.   He objects  to that part of the addition which says that "  the persons actually doing the worship should have the requisite knowledge of the mantrik ritual and in case any one has  not such  knowledge,  the  actual  worship  and  ritual  may  be performed by his substitute having such knowledge." Now this provision merely. 942 says  what  the  rules  for pooja  to  be  approved  by  the ]District  Judge  after hearing the public and  the  pujaris should provide among other things.  This provision is on the face of it reasonable, for it is unthinkable that a  pujari, even  though he may be a hereditary pujari,  should  perform puja,  when  he  does not know anything  about  the  mantrik rituals.   Learned  counsel  for  the  respondents  has   no objection  to this provision either except that he  contends that  the  rule  seems  to  give  the  right  to  provide  a substitute to the managing trustee (namely, the  appellant). As  we read the rule, however, we do not think that that  is what  it  means.   All  that  it  says  is  that  where  the hereditary pujari does not know the mantrik ritual, the puja may be performed by his substitute.  It means that the  sub- stitute  has  to be provided by the pujari and  not  by  the managing trustee.  The fact that the substitute is  pujari’s substitute has implicit in it that it is the pujari who  has to  provide  a substitute in his place in case he  does  not know  the  rituals.   Learned counsel  for  the  respondents concedes  that if this is the mean. ing of the  addition  in paragraph 3, there can be no objection to it.  We  therefore make  it clear that when the addition in paragraph 3  speaks of  a substitute for the pujari who is ignorant of  rituals, it is the pujari who has the right to provide the substitute and  not the managing trustee.  So read, this addition  does not  in any way affect the private rights of the pujaris  in the matter of puja.  Thus the entire addition in paragraph 3 deals with the administration of the temple with respect  to puja  and with the clarification which we have  given  above there is no trespass on the private rights of the pujaris by this  addition.   Therefore,  the revised  paragraph  3  was within the jurisdiction of the District Judge and cannot  be taken exception to on that score. Turning now to paragraph 12 we find that there are additions in  that paragraph in the revised scheme and we  shall  deal with  each addition seriatim: The first addition (i.e.,  cl. a) is that " the Raje Anandrao shall have power to keep such dependants  like  kirtankars,  puranika,  etc.,  for  proper performance of the religious 943 rites of the deity customarilyso performed and to fix  their allowances  or  remunerations, as the case may  be.  "  This addition  does not in any way affect the private  rights  of the  pujaris; it deals with persons other than  the  pujaris who  perform  other  duties beside the  puja,  like  kirtan, reading  of purans, etc.  The managing trustee (namely,  the Raja)  has been given the power to appoint such persons  and to  fix their allowances or remunerations.  Obviously,  such allowances  and  remuneration will not be paid  out  of  the income  which is secured to the pujaris under the  agreement of  1872  and will have to come out of other income  of  the temple.   If this provision is so readand this is  the  only way  in  which it can be read-the learned  counsel  for  the respondents  has no objection to this provision either.   It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

relates to the administration of the trust and does not,  if read  in the manner indicated above, in any way  affect  the private rights of the pujaris.  Then comes cl. (b), which is as follows:-               "Raje  Anandrao,  and  in  his  absence,   the               manager  or the agent of Raje  Anandrao,  will               have  power  to grant leave to,  or  fine,  or               punish  the pujaris for misconduct, as in  the               case of his office staff and other  dependents               because  the responsibility is on the  trustee               to  see that the puja is  performed  regularly               and  properly.  The dismissal of  the  pujaris               for  misconduct or other reasons shall not  be               made  without  the previous  sanction  of  the               District Judge, West Berar. This  clause  again  deals with the  administration  of  the temple.   We  have already referred to the decision  in  the suit  of  1935  between  the  appellant  and  the   pujaris- respondents.   In  that  suit it was  made  clear  that  the pujaris in the discharge of their duties were subject to the control  of  Raje  Anandrao and were bound  to  respect  his authority  and  rightful  orders and that  they  held  their office subject to good behaviour.  It is this decision inter parties  which  is being carried out in cl. (b),  which  has been  added  in the revised scheme.  The  power  of  control which  the  Raja has over the pujaris in  the  discharge  of their duties 944 implies  that be is the person to grant them leave or  fine% or punish them for misconduct, if they do not perform  their duties  regularly  and properly.  Learned  counsel  for  the respondents feels however that this power to punish might be misused  by  the Raja, for it is  uncontrolled,  unlike  the power  to  dismiss which could only be  exercised  with  the previous  sanction of the District Judge.  The clause as  it stands  therefore  does not in any way  affect  the  private rights  of  the  pujaris and does not  go  beyond  what  was decided  in  the suit between them and  the  appellant.   It concerns  the administration of the temple and therefore  it was within the jurisdiction of the District Judge to  insert it  in the scheme when revising it.  At the same time  there may  be  something in the apprehension  entertained  by  the pujaris  that  the  power  to  punish  may  be  abused.   We therefore  think  that  in this clause  a  further  sentence should be added to the following effect:-               "In case Raje Anandrao or his manager or agent               fines or punishes the pujaris for  misconduct,               the  pujaris will have the right to appeal  to               the District Judge against such orders and the               order  of the District Judge thereon  will  be               final.  "               Then we come to cl. (c) which is as follows:-                "The pujaris will be entitled to their shares               in the offerings as per the agreement of  1872               after deduction of the expenses for the pooja,               etc. as per my detailed remarks in my separate               order passed today.  The management will  work               out those instructions for day-to-day  working               in accordance with rules to be included in the               puja rules." The  main attack of the respondents is on this clause,  for, according  to them, it affects their right to  offerings  to which  they are entitled under the agreement of 1872.   This clause is not self-contained, for it refers, to the detailed remarks  in the separate order of the District Judge  passed

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

on that very day and leaves it to the management to work out those instructions for day to day working in accordance with rules  to  be included in the puja rules.   Now  under  ’the separate  order  of  the  same  date  it  is  provided  that offering up to 945 Rs.  5/-  to which the pujaris are entitled subject  to  the expenses  of  dhoop,  deep and  neivedya  according  to  the agreement  of, 1872 should be kept in a separate  box  which should  be opened once every week, or fortnight or month  or at  any  stated  period as agreed by  the  pujaris,  in  the presence  of  some respectable persons of the town  and  the signatures of the representatives of the pujaris and of  the trustees or big representative should be taken in a separate note-book  to  show the exact amount found in the  box.   In case the pujaris do not agree to some period the box may  be opened  once  every  month.  It is  further  said  that  the expenses of dhoop, deep and neivedya should be met from this money  and  such  expenses  should be  found  out  from  the pujaris’  account.   If the pujaris do  not  disclose  their accounts it would be for the Raja to settle the amount which is to be spent on dhoop, deep and neivedya and then  require the pujaris to spend that much amount for the purpose.  This amount  should be paid to the pujaris on their showing  what they  had  spent  on dhoop, deep and neivedya;  but  if  the pujaris fail to spend anything, the trustee should see  that the  expenses  are  properly incurred  and  debited  to  the pujaris in their khata and the balance of this khata  should be divided among the pujaris. The respondents are afraid that these directions would  mean that  the management will take away the money found  in  the box  whenever it is opened and the pajaris would thus be  at the  mercy  of the management for meeting  the  expenses  of dhoop,  deep and neivedya and also for the balance to  which they  are entitled for their upkeep.  Up to now this  amount of  offerings up to Rs. 5/- was going direct to the  pujaris and they were incurring expenses on dhoop, deep and neivedya out  of  it, The appellant contends that  under  the  Madhya Pradesh  Public  Trusts  Act, No. XXX of  1951,  he  has  to maintain  proper accounts under s. 15, to prepare  a  budget under  s. 18 and to have the accounts audited under  s.  16. Therefore  it  is necessary that he should show  the  amount received in offerings up to Rs, 5/- in his budget and should also  show  how  much of it goes to the  pujaris  for  their personal use and how much of 946 it is spent on dhoop, deep and neivedya.  There is no  doubt that in order that puja in the temple in the shape of dhoop, deep and neivedya is performed properly, it is necessary  to have check in this income from offerings up to Rs. 5/-  from which this expenditure is incurred, leaving the balance  for the  personal  use of the pujaris.  Even so it seems  to  us necessary  that  the  interests  of  the  pujaris  are  also safeguarded  and  they should not be left  entirely  at  the mercy  of the appellant, who may take away the entire  money found  in the box and may not pay them for long  periods  to what they are entitled as the balance.  Though therefore the District  Judge  was  right in making  the  arrangement  for putting  the  offerings up to Rs. 5/- in a separate  box  so that  they  may  be  accounted  for,  we  think  some   more provisions  are  necessary  in order that cl.  (c)  may  not affect  adversely the private rights of the pujaris  to  the balance  of these offerings after incurring the expenses  in dhoop,  deep and neivedya.  It is also essential  that  some safeguard  should  be provided for the pujaris so  that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

amount  put  in the box is not surreptitiously  taken  away. Though therefore the main provision in cl. (c) dealing as it does   with   the  administration  of  the  trust   is   not objectionable, it is necessary that it should be made  self- contained  and  should  also  contain  safeguards  for   the pujaris.   We therefore direct the District Judge  to  amend cl.  (c)  of  paragraph 12 in order to  bring  into  it  the provisions contained in his detailed order.  We also  direct that the District Judge should provide for the protection of the  interests of the pujaris by including the following  in cl. (c):-               (1)   The  box in which these offerings up  to               Rs. 5/are put should be double looked-one look               to  be put by the appellant and the  other  on               behalf of the pujaris.               (2)   It should be opened in the presence of a               representative   of  the  management   and   a               representative  of  the pujaris who  shall  be               chosen  by the pujaris in such manner as  they               think  fit and two respectable persons of  the               town,               947               (3)   The box may be opened once in a month or               oftener as desired by the pujaris but not more               than once in a week.               (4)   The amount found in the box may be noted               by  the management; the whole of it should  be               handed  over to the chosen  representative  of               the  pujaris on behalf of all the  pujaris  in               case  the  expenditure  for  dhoop,  deep  and               neivedya  for the period prior to the  opening               has been met by the pujaris.  In case  however               such   expenditure   has  been  met   by   the               management,  the balance after deducting  such               expenses,  shall  be immediately paid  to  the               chosen representative of the pujaris on behalf               of them all. The  last provision has been made to make it clear that  the management will not take away the money but immediately give it  to  the representative of the pujaris  for  distribution among them.  The provisions of the Public Trusts Act will be satisfied  in that the management will be in a  position  to know  how much has gone to the pujaris including the  amount spent on dhoop, deep and neivedya.  This provision will also take away any objection about there being interference  with the  private  rights of the pujaris under the  agreement  of 1872. We  therefore allow the appeal, set aside the order  of  the High  Court  and restore the revised scheme subject  to  the modifications  suggested  by us above.  The  District  Judge will  see  that  these modifications  are  embodied  in  the revised  scheme.  In the circumstances of the case we  order parties to bear their own costs. Appeal allowed.