SADUPADHYA UMESHANAND OJA HIGH FIRST OF THE TAMILE OF BAIDYANATH Vs. HON BLE MAHARAJA SIR RAVANESWAR PROSAD SINGH BAHADUR OF GIDHOUR

JUDGEMENT

(1.) This Rule was granted upon the application of the high priest of the Temple of Baidyanath, who was elected to the office in execution of a decree of this Court, made in affirmance of the decree of the Court below in a suit instituted under Section 539 of the Civil Procedure Code of 1882. [Shailajananda Dut Jha v. Umeshanunda Dut Jha 20 L.J. 460]. A scheme for the management of the temple was drawn up pursuant to that decree and from time to time the scheme has been amended by order of this Court. [Umeshananda Dut Jha v. Ravaneswar Provad Singh 17 Ind. Cas. 969 : 16 C.L.J. 431 : 17 C.W.N. 841 and Umeshananda Jha v. Maharaja Sir Ravaneswar Prosad Singh R.A. No. 111 of 1916]. Under the decree of this Court the high priest was appointed the trustee, and a Committee of management was appointed to supervise the work of the temple. On the present occasion, the application is made by the high priest for insertion of a clause in the scheme to the effect that the Maharaja of Gidhour who is a member of the Committee, may be removed from his office on an application to the District Judge and without the institution of a fresh suit. The application has been opposed on behalf of the Maharaja. We are of opinion that the application has not been properly framed and that an order cannot possibly be made in its terms. The whole matter, however, has been placed before the Court, and it is plain that there is considerable difference between the high priest on the one hand and at least one member of the Committee on the other hand. On the last occasion, a clause was inserted in the scheme by an order of this Court to the effect that on good cause established, the high priest may be removed on an application to the District Judge without the institution of a fresh suit for administration of the trust. The question arises, whether a similar provision should or should not be inserted in the scheme for the removal of a member of the Committee. We find on an examination of the judgment delivered on the 4th July 1901 by Mr. Joges Chandra Mitter who tried the original suit, that he intended the insertion of a clause to the following effect in the scheme: "The members of the Committee shall hold the office for life, but it will be competent to the said Deputy Commissioner, or on his refusal, the District Judge, on his own motion or on the application of any person interested in the temple," to remove from the Committee any member who may be found to be unfit or incompetent to continue, a member of the Committee. Pursuant to this judgment, a decree was drawn up, and it was signed by Mr. G.K. Deb on the 15th July 1901. The decree contained a provision to the following effect: "The aforesaid supervisors, that is, the members of the Committee, will be appointed for life, but the aforesaid Deputy Commissioner, and, on his declining, the aforesaid Judge, may, in his discretion, or on the application of any person interested in the temple, dismiss any of the aforesaid persons, if they happen to be unfit or disqualified for the work." Subsequently the decree was amended after an appeal had been preferred to this Court on the 5th August 1901. The amended decree was signed by Mr. H.D. Corey, the then District Judge, on the 18th January 1902. For some unexplained reason, the clause mentioned does not appear in the decree as signed by Mr. Corey. From an examination of the records in this Court, it appears that the appeal to this Court was originally preferred against the decree as signed by Mr. G.K. Deb. On the 21st April 1902, an application was made to this Court to attach to the memorandum of appeal a copy of the decree as amended by Mr. Corey: the application was granted, and from that moment, the appeal then pending in this Court became an appeal against the amended decree. We must hold accordingly that the decree as amended by Mr. Corey is the final decree operative in respect of the trust properties; for the judgment of this Court shows that no question as to the propriety of the details of the scheme was raised here and the appeal was dismissed, with the necessary consequence that the decree as amended by Mr. Corey stood confirmed. We cannot hold after the lapse of fifteen years that the decree as amended by Mr. Corey is of no effect between the parties to the litigation or their successors. In this view it is difficult to resist the conclusion that a clause should be inserted in the scheme to the effect that a member of the Committee may on good grounds established be removed, by way of an application to the District Judge without the institution of a fresh suit.

(2.) This was, in fact, the course adopted in the case of Damodarbhat v. Bhogilal Karsondas 24 B. 45 : 1 Bom. L.R. 509 : 12 Ind. Dec. (N.S.) 567. There, in the scheme originally framed, a Committee of management was appointed, without provision made for the removal of a member of the Committee. In execution of the decree, an attempt was made to remove one of the members on the ground that he had rendered himself unfit, by conduct subsequent, to hold the office. The Court held that this could not be done in exeoution of the decree, and that the proper course was, not to institute a fresh suit under Section 539, but to adopt the more convenient and obvious procedure of amendment of the scheme by the inclusion of a provision for the removal of the trustees, if necessary.

(3.) The authority of the Court to amend the scheme from time to time has not been and cannot possibly be questioned. As was pointed out by Mr. Justice Subrahmania Ayyar in the case of Prayag Dossji Varu Mahant v. Tirumala Srirangacharla Varu 28 M. 319 : 15 M.L.J. 133, which was subsequently affirmed by the Judicial Committee in Prayag Dossji Varu v. Tirumala Srirangacharla Varu 30 M. 138 : 11 C.W.N. 442 2 M.L.T. 119 : 17 M.L.J. 236 : 9 Bom. L.R. 588 (P.C.), there is ample authority for the proposition that a Court, which has sanctioned a scheme for the administration of a charitable trust, is competent from time to time to vary the scheme as the exigencies of the case may require. Reference need only be made to the decisions in Attorney General v. Bovill (1840) 1 Phillip 762 : 4 Jur. 548 : 41 E. R. 822 : 65 R.R. 506, Attorney-General v. Bishop of Worcester (1851) 9 Hare 328 : 21 L.J. Ch. 25 : 16 Jur. 3 : 18 L.T. (O.S.) 86 : 68 E.R 530 : 89 R.R. 47, Mayor of Lyons v. Advocate-General of Bengal (1876) 1 A.C. 9 at p. 110 : 45 L.J.P.C. 17 : 34 L.T. 77 : 34 W.R. L.T. 77 : 24 W.R. 679 and Re Browne s Hospital Stamford (1889) 60 L.T. 288. We direct accordingly that the decree of this Court, which confirmed the decree as finally amended by Mr. Corey, be further amended by the insertion of a clause to the following effect; The members of the Committee shall hold office for life but it shall be competent to the District Judge, on his own motion or upon the application of any person interested in the temple, to remove, for good cause, from the Committee, any member, on the ground of unfitness or incompetence or for any like reason. The District Judge may, when an application is made to him in this behalf, consult the Deputy Commissioner.