BILASRAI JOHARMAL Vs. SHIVNARAYAN SARUPCHAND

JUDGEMENT

(1.) THE appellants on September 2, 1939, with the sanction of the Advocate General, brought a suit on the Original Side of the High Court at Bombay under Section 92 of the Code of Civil Procedure, 1908, in respect of a public charity. THE charity concerned is a hospital at a town in the Jaipur State called Bagar. It was established in 1926 for providing medical relief to the poor and was called Shivnarayan Joharmal Bagar Hospital. THE plaint asked that the defendants, who were five in number, should be removed from their office as trustees and that new trustees be appointed by the Court. It also asked for accounts to be taken of the defendants' management, on the footing that they had been guilty of misapplying the funds of the trust; but it is now plain that this allegation is wholly without substance and that the sole ground of complaint is that the defendants have without authority changed the name of the hospital to Snivnarayan Chiranjilal Rungta Hospital and are employing this new style both in bills, papers and labels of the hospital and on the rent notes issued in respect of the property in which the funds are invested.

(2.) THE learned trial Judge, Chagla J., by his decree of October 10, 1941, removed the trustees and appointed new trustees. He directed the defendants to hand over to the new trustees; the trust properties in their possession, together with all the books of account, papers, vouchers, documents, etc., relating to the hospital, but the decree contains no provision giving relief against misapplication of trust monies and no direction for accounts. On appeal Beaumont C.J. and Somjee J. set aside this decree and dismissed the suit and from their decree dated March 19, 1942, this appeal is brought.

(3.) THE learned trial Judge refused to apply the principle that he ought not to interfere in the administration of a charity which is carried on within the borders of an independent State. He appears to have accepted as well settled the rule that if the Court is not in a position to supervise the carrying out of a charity it will not frame a scheme in respect of that charity but will take such steps only as are necessary to safeguard such trust funds as lie within, the jurisdiction. (Advocate General v. Bai Punjabai (1894) I.L.R. 18 Bom. 551, Kanji v. Advocate General (1915) 18 Bom. L.R. 60). But he took the view-somewhat unreasonably, as their Lordships think-that if the name was changed without proper authority the application of the hospital funds to the hospital was a misapplication of those funds and amounted to a breach of trust which required the Court to safeguard them. Further, he took strong exception to the defendants' conduct, in that on February 13, 1941--that is, pending suit-they had presented a petition to the Jaipur "Court of Nizamat She khawati" asking that the change of name might be ratified and confirmed. While acquitting them of dishonesty or moral turpitude, he suggested to their counsel that if they were prepared to resign he " might consider the question of condoning their breach of trust", and as this was not acceded to he removed them from office. In their Lordships' view this method of dealing with the matter is open to serious criticism even on the assumption that the defendants' conduct amounted to a breach of trust which the Court was called upon to correct. If the learned Judge had ordered the defendants to restore the original name they might or might not have obtained a stay of his order and appealed from it. If they failed to comply with it a motion to remove them or to commit them could have been made in due course and upon proper materials. But to require them to resign, and on their refusal to direct their removal from office was to take action far in excess of anything that was called for. THE defendants' refusal to resign added nothing whatever to the case against them.