(Board of Control) Sri Thyagarajaswami Devasthanam vs Balayee Ammal and Others

Ramesam, J.—This is an appeal against the order of the Sub-Court of Tiruvalur passed on a petition by the President of the Board of

Control, Sri Thyagarajaswami Devasthanam, of Tiruvalur. The Board of Control was appointed in pursuance of the scheme framed by this Court

in Gyanasambanda Pandara v. Vaithilinga Mudaliar AIR 1924 Mad. 168 on appeal from O.S. 52 of 1913, Temporary Sub-Court, Tanjore.

A preliminary objection has been taken by the respondents that no appeal lies. The scheme framed by the High Court contains a clause (Cl. 27)

that any of the parties or the Board of Control as a body or the Advocate-General are at liberty to apply to the Court for any modification of the

scheme. But the present application is not an application for any modification of the scheme and does not come under this clause. In the present

application the President of the Board of Control complains that some of the kattalaidars would not send complete budgets of their receipts and

expenditure, nor would deliver the cash in their hands to the treasurer as provided by Clauses 8 and 13 of the scheme and the president applies to

the Court for getting the clause enforced, by attachment of the properties or by detention of the recalcitrant defendants. The Subordinate Judge has

not given the relief sought by the petitioner. Hence this appeal.

The respondents in support of their preliminary objection rely on the following cases: AIR 1925 155 (Privy Council) , Ranganatha Thathachariar

v. Krishnaswami Thathachariar AIR 1924 Mad. 369 ; (Bava C.) Vythelinga Mudaliar and Others Vs. R. Mahadeva Iyer and Others, ; Sivan Pillai

and Another Vs. T.S. Venkateswara Ayyar, , Abdul Hakim Baig and Others Vs. Mahomed Burrammudin and Others, ; and Brahmayya v.

Venkatasuryanarayanamurthi AIR 1926 Mad. 557. Most of the decisions of the High Court rely on the first of the above decisions which is a

decision of the Privy Council. Mr. Varadachariar who appears for the appellant while conceding that most of these other decisions are correctly

decided attacked the correctness of the reasoning in the judgments, especially the inference sought to be drawn from the Privy Council decision. It

becomes, therefore, necessary to examine what was exactly decided by the Privy Council and how far the decision supports the inference sought

to be drawn from it by Judges of this Court. In that case there was a scheme framed by the Privy Council. The scheme provided for the

appointment of a temple committee and empowered the committee to make rules. There is also a provision for the, rules being sanctioned or

modified by the District Court. There is another clause for the alteration of the scheme by the High Court of Bombay. The committee made the

rules and the rules were submitted to the District Court for sanction and the District Judge modified the rules. There was an appeal to the High

Court u/s 47, Civil P.C., against the order of the District Judge. There was also an independent application to the High Court for the alteration of

the scheme. But no orders were passed on this application. The High Court on appeal from the District Court modified the order of the District

Judge. But the Privy Council held that no appeal lay to the High Court u/s 47, Civil P.C., and it should have been rejected. They pointed out that

the High Court might have exercised the power conferred on it by the clause which enabled it to modify the scheme, The Privy Council did not say

that if the High Court exercised such power that would not have been in'' execution and no appeal lay against it. They expressed no opinion on the

matter. All that they decided was that the order of the District Judge modifying the rules made by the committee was not an order in execution. So

far as the alteration of the rules is concerned, it cannot be said that anything was sought to be enforced by one party as a judgment-creditor against

another party as judgment-debtor who is under some obligation and it cannot be said that there was any question in execution between the two

parties. Under the scheme of the Privy Council the rules must be placed before the District Court for its sanction and the District Court has power

suo moto to sanction or alter the rules. It is therefore, doubtful whether the decision of the Privy Council applies to a case where one party who is

conferred a certain right by the scheme seeks to enforce the right against some other who is under a corresponding obligation and for this purpose

goes to Court. It cannot be said that the Privy Council decided that such a matter is not a matter in execution between the parties.

The next case in the order of date is Ranganatha Thathachariar v. Krishnaswami Thathachariar AIR 1924 Mad. 369. The learned Judges who

decided that case seem to think that when a scheme was asked and the scheme was framed there was nothing more to be done in the suit and

nothing to be executed; but it seems to me that, whatever might have been asked, where the decree gives something more and provides for the

carrying out of the earlier part of the decree, it may be said to be executable. It is more a question of the interpretation of the terms of a decree and

there cannot be any general rule. It is true that a scheme decree, if general, by its very nature is a declaratory decree. But it is possible that some

particular provisions provide for enforcement of parts of the scheme. I do not see any reason why such portions of a scheme decree may not be

regarded as executable. The decision in Damodar Bhat v. Bhogilal [1900] 24 Bom. 45 is such a case. The grounds on which that decision was

sought to be distinguished by Oldfield, J. seem to me untenable. In that case there was a prayer to take past accounts, but in the final decree there

was a direction to keep accounts for the future, that is, from the date of the decree and to submit them annually to the District Court and it was this

provision that was sought to be enforced in Court. The High Court held that an appeal lay and that it was a question in execution. Oldfield, J.,

observed that as the taking of accounts was a relief asked for specially in the suit and granted independently of the framing of the scheme, that

decision may be distinguished on this ground; but the taking of accounts prayed for in the plaint related to past accounts whereas the decree related

to the keeping of future accounts, accounts after the date of the decree. Again Oldfield, J., seems to think that if there was a provision in the

scheme for the enforcement of its other provisions, then it may be enforced in execution.

It is not always that decrees of Courts, even where executable, actually provide for their being enforced in execution. Where a decree directs

the defendant to pay some money to the plaintiff, it is executable from its very nature and one does not expect a provision in the decree that it shall

be enforced in execution. That may be so in a plain case, and it may be that in ambiguous cases a provision of the kind removes the ambiguity and

solves the difficulty. ""When there is no such provision it is a difficult matter to decide whether a particular clause in a scheme is executable or not.

Anyhow it is not clear to me that the decision in Damodar Bhat v. Bhogilal [1900] 24 Bom. 45 is wrongly decided, nor does it seem to me that the

consideration that the decree will have to be kept up in perpetuity for the purpose of execution has much bearing on the matter. A decree awarding

maintenance to a widow annually may be executable for nearly 100 years. A decree giving an injunction in respect of a lease for 999 years may be

executable for a very long period. The other alternative remedy which is suggested in most of the decisions is that a party seeking relief must seek

his relief by way of a suit. Some cases say that it is a suit u/s 92, Civil P.C. But where a suit u/s 92 has already been filed and a scheme framed and

the only object is to carry out the provisions of the scheme, at does not seem to me that this new suit should be a suit u/s 92 unless it is said that the

new suit must always be far the removal of a trustee for disobedience and cannot seek for the enforcement of the provisions of the scheme in any

way. I do not understand the defendants to contend for this. The inconvenience of driving a party like the Board of Control in this case to a suit for

every breach on the part of the trustees is obvious. But the whole matter is not free from difficulty. Probably, if the question of principle is once

decided further trouble on the part of the kattalaidars need not be apprehended.

The next case is (Bava C.) Vythelinga Mudaliar and Others Vs. R. Mahadeva Iyer and Others, . This was in connexion with the same temple.

The petition there was to cancel the appointment of a superintendent by the trustees and for the appointment of a new person by the Court. In that

case there was nothing to execute. In fact it was found by the High Court that the scheme did not authorize the action of the Subordinate Judge and

no appeal lay to this Court. The High Court set aside the order of the Subordinate Judge exercising their powers of revision. There was a

contention in that case that an appeal lay. The learned Judges relied on Ranganatha Thathachariar v. Krishnaswami Thathachariar AIR 1924 Mad.

It seems to me that that was a case in which there was nothing in execution and I agree with the decision that no appeal lay. It was

unnecessary to rely on Ranganatha Thathachariar v. Krishnaswami Thathachariar AIR 1924 Mad. 369.

The next case is Sivan Pillai and Another Vs. T.S. Venkateswara Ayyar, . In that case the remedy sought was the removal of a trustee. It may

be that, so far as the removal of a trustee is concerned, the only remedy is a regular suit and cannot be done under the scheme. Anyhow, certainly

it is not a matter for execution because it cannot be said that any provision of the scheme was being executed. I entirely agree with the decision that

no appeal lay, but I am not able to agree with the remark at p. 798 of Spencer, J.:

In the light of the recent Privy Council decision and the decision of this High Court in Ranganatha Thathachariar v. Krishnaswami Thathachariar

AIR 1924 Mad. 369 I am of opinion that an appeal will not lie against the order made by a Court exercising a power given to it by a provision in

the scheme and that such an order is not an order made in execution.

As I have already observed there is no general decision by the Privy Council that any order made under the scheme is not an order in execution.

It is unnecessary in that case to rely on the decision of the Privy Council or Ranganatha Thathachariar v. Krishnaswami Thathachariar AIR 1924

Mad. 369.

The next decision is (Majeti) Ankayya Vs. Lingambhotla Venkata Ramaya, . In that case there was an application by the ''archakas to get their

salaries and also a sum of money. Neither the judgment nor the printed papers show what the exact terms of the scheme were. We agree with the

observation in the case that a scheme suit generally may be regarded as declaratory. But it does not follow that there may not be some particular

provisions in the decree framing the scheme which are capable of execution. That case certainly is rightly decided, but I do not see how it helps us.

An archaka is entitled to his salary by reason of his position as archaka and a suit for his salary is like any other suit where some money is due from

one person to another and it cannot be said that such a suit is for carrying out of provisions of the scheme. That suit was not obviously for the

carrying out of any provision in the scheme and therefore there was no appeal and the order of the lower Court was set aside in revision. In

Brahmayya v. Venkatasuryanarayanamurthi AIR 1926 Mad. 557 also the suit was for the salaries of the archakas. I entirely agree with the

decision; but I cannot agree with the ''remark in the judgment that a general clause in the scheme providing for application to the Court with regard

to the scheme is ultra vires. A different view was taken by Oldfield, J. and Venkatasubba Rao, J., in lianganatha Thathachariar v. Krishnaswami

Thathachariar AIR 1924 Mad. 369 already mentioned. If the relief sought for is the removal of a trustee it may be ultra vires; but if it is for the

carrying out of the details of the scheme, it cannot be opposed to Section 92, and I do not see any reason why such a thing should not be enforced

in execution. The case itself is of course correctly decided, but I doubt if the remark that there can be no provision in the scheme providing for

execution of some clause is correct.

The next decision is Abdul Hakim Baig and Others Vs. Mahomed Burrammudin and Others, . This also relates to the removal of a trustee and

it may be, that the clause in the scheme providing for the removal of a trustee by way of execution is ultra vires. It is Unnecessary to discuss this

case any further.

The result of the above discussion is what, while I think that all the cases have been correctly decided on the actual facts, I am unable to agree

with some of the observations made in them. I do not see any reason why there may not be some clause in the scheme which amounts to a

direction to the defendant to perform some duty, such as the payment of money either at a point of time or periodically, and why such a direction

should not be executable. Whether it is executable or not depends on the intention of the decree. While generally a scheme decree may be

declaratory, specific parts thereof may contemplate execution. It is unnecessary to expressly provide for the enforcement of such a clause by

execution though where there is an express provision to that effect it makes matters clear, and such a provision except as to the removal of a

trustee is not ultra vires. In the case of the removal of a trustee it may be that the only remedy is by a suit u/s 92. In the present case, it may be said

that the presentation of a proper budget and payment of the moneys to the treasurer are matters intended to be enforced in execution. I do not see

how the payment of moneys to the treasurer is different from a maintenance decree.

But assuming that there is some doubt as to the intention of the scheme and that a suit is the proper remedy, it is clear that the suit is not'' a suit

u/s 92 and does not require any sanction. The second clause of Section 47, Civil P.C., provides that the Court can convert a. petition into a suit

and a suit into a. petition subject to any question of jurisdiction or limitation. In this case there is no question of jurisdiction or limitation. The policy

of the legislature in enacting that clause was to avoid all technicalities and to enable Courts to get at the root of the matter in dispute between the

parties. In none of the cases cited was reliance placed on this Section 47. Nor could it be on the facts of these cases. In the present case I think

that the petition of the President of the Board of Control may be Converted into a suit under the said clause and as the matter is incapable of

valuation the petitioner will pay a Court-fee of Rule 100 in the ''Court below and in the appeal before us. If the petition is regarded as a suit there is

no objection to the appeal before us. I, therefore, proceed to consider the merits of the case.

On the merits the respondents contend that all that was intended by the scheme as to the kattalaidars was that their budget should deal only

with such portions of their duties as related to the temple proper or what is called pagoda service, and that as to the other duties they need not

submit the budget to the Board of Control nor need they pay the monies relating to such other duties to the treasurer. I have not the smallest

hesitation in rejecting this contention. The judgment in the main ''appeal is now reported in Gyana Sambanda v. Vithilinga Mudaliar AIR 1924

Mad. 168. While in the judgment, myself and Spencer, J., were anxious to support the independence of the kattalaidars and not to destroy their

individuality as the Subordinate Judge did, we were also anxious to point out that all the duties of the kattalaidars were duties either directly or

indirectly connected with the temple. For instance in the case of annadanam Kattalai, though the 5th duty, namely, pagoda service relates to the

temple and others such as sheltering the travellers, distribution of food, and keeping of water, pandals, lights, etc., do not directly relate to the

temple, in theory all these duties are also indirectly connected with the temple. The person who endowed the property to the kattalai was thinking

of providing for the charities to be carried on in the name of Thyagarajaswami so that the particular idol may be glorified. The recipients of the

shelter for travellers and the supply of food and water extol the charity as one of Thiagarajaswami and in that way they are all charities of

Thiagarajaswami, It is true that we said that the income of the kattalais did not belong to the idol. But in their expenditure the idol was interested

and in that way they are all endowments connected with the temple and in that sense all the incomes of all the kattalais are funds of the

Devasthanams, and this was all that was meant by the use of the words funds of the Devasthanam "" in the other clauses of the scheme, such as for

example Clause 16. That this is our intention is clear from para. 13 which provides that the trustees of the respective kattalais shall hand over all the

cash proceeds to the treasurer; Similarly, budgets that relate to the expenditure and income of kattalais must show details of all the expenditure

whether directly connected with the temple or not but in theory redounding to the glory of the Swami, I am, therefore, of opinion that the order of

the Subordinate Judge is incorrect and that the respondents should submit complete budgets relating to all the expenses and pay all the money to

the treasurer and get back the amount from the treasurer as expenses are being incurred.

It is said that in the case of the palayee kattalai, which related to the feeding of Brahmins every day it is inconvenient to get money every day.

We never said that the money should be taken every day. Money may be drawn from the treasurer once a fortnight or a month or in some other

way as the Board of Control and kattalaidar may agree. There is nothing in the scheme precluding such an arrangement between the parties, but it

is clear that all the income must be handed over to the treasurer and afterwards taken back as occasions arise.

The contention raised on behalf of the ardhajama kattalai that subject to certain duties in connexion with the temple the endowments are to be

treated as the property of the kattalaidar comes too late. The whole suit proceeded on the footing that all the kattalais are appendages to the

temple. They are independent only in the sense that the individuality of the trustees should be kept up and each kattalaidar is a separate trustee, but

there is no question of private ownership. It was never argued in the main case and Subordinate Judge who tried the suit decided against the

ardhajama kattalaidar. It is too late to repeat it now.

We allow the appeal and reversing the order of the Subordinate Judge direct that the respondents should submit complete budgets of their

receipts and expenditure and also deliver all the income to the treasurer. The respondents will pay the costs of the appellant both here and in the

Court below including the Court-fees now directed to be paid by the appellant.

The appellant will pay the Court-fees within a fortnight.

Cornish, J.

I agree, and will add a few words only on the point whether the decree is executable.

It appears to me that the question whether a decree framing a scheme for a charitable trust is executable or not must depend on the language

and on the scope of the decree or of that particular part of the decree in respect of which the question arises. Prom the nature of the case such a

decree may in part be declaratory and in part directory. It may provide a specific procedure for carrying out particular provisions of the scheme,

and yet leave other provisions of the scheme enforceable by execution: see Damodar Bhat v. Bhogilal [1900] 24 Bom. 45. The view expressed in

Raghunatha Thathachariar v. Krishnaswami Thathachariar AIR 1924 Mad. 369 that when once the Court has passed a decree framing a scheme

the decree becomes nonexecutable must, I think, be taken as intended to refer to the particular question which arose out of the scheme which the

Court had to consider in that case. There certainly appears to be no justification for accepting that view as a rule of general application. In the case

which is now before us the question is whether Clauses 8 and 13 of the scheme decree are executable. I think it clear as a matter of construction

that these clauses are not merely declaratory. They are directory. They direct particular acts to be done by the kattalaidars, and these directions

obviously involve the consequential right on the part of the board of control to have the performance of the particular acts enforced. Then, does the

scheme, either in terms or by implication exclude the right of the board of control to enforce these directions by execution of the decree?

The only provision in the scheme which bears on this question is Clause 27, which enables any of the parties or the board of control to apply to

the Court for modification of the scheme. But Clause 27 has no application to the particular question before us. A modification of the scheme

which means an alteration of the rules or directions would certainly not be an appropriate or an effective remedy for the non-compliance with the

directions in Clauses 8 and 13. It appears to me that execution of the scheme decree is the proper remedy. Authority for this conclusion is to be

found in Damodar Bhat v. Bhogilal [1900] 24 Bom. 45 and Prayagdossjivaru Mahant v. Thirumala Sri Rangacharlu Varu [1905] 28 Mad. 319.

But then it has been said that since the Privy Council decision in the Dakore Temple case, AIR 1925 155 (Privy Council) the rulings in

Damodar Bhat v. Bhogilal [1900] 24 Bom. 45 and Prayagdossjivaru Mahant v. Sri Rangacharlu Varu [1905] 28 Mad. 319 can no longer be

considered as good law: see Sivan Pillai and Another Vs. T.S. Venkateswara Ayyar, , Brahmayya v. Venkcatasuryanarayanamurthi AIR 1926

Mad. 557 and (Majeti) Ankayya Vs. Lingambhotla Venkata Ramaya, . I am unable to find in the Privy Council judgment any ground for that

conclusion. The Privy Council, as I read the judgment, decided no more than the question which was before it, namely, that Clause 20 of the

particular scheme having defined the procedure for modifying or altering the scheme the Court had no jurisdiction to modify or alter the scheme

except by the prescribed procedure. Their Lordships confined themselves to that question; and nowhere in the judgment is there any discussion of

the proposition that directions in a scheme decree are in no circumstances executable.

It is not, however, necessary to dispose of ''the case on this ground. I think that having regard to the contention that has been raised by the

kattalaidars on the construction of the scheme, a more satisfactory way is to proceed u/s 47(1), Civil P.C. I agree with the order proposed by my

brother.