K. Narasimha Pai and Others vs Chandu and Others

Curgenven, J.—In O.S. No. 26 of 1915 on the file of the Subordinate Judge of South Kanara a scheme was settled for the Sri

Venkatramana temple at Moolki. By the scheme the general control and management of the affairs of the temple is vested in the Gowd Sara-swath

Brahmin community, and the executive management is entrusted to. a Council of moktessors. The scheme provides in a comprehensive manner for

the ainistration of the temple and lays down a number of rules which the moktessors or trustees have to observe. Then Clause 65 runs as follows:

Matters regarding misfeasance, malfeasance or non-feasance in annexion with the manageita of the temple affairs and all other matters Connected

with the temple shall be settled by petition to this Court sanctioning this scheme provided however that the petition is filed by lot less than two of.

the registered electors or by not less than two of the votaries or worshippers if the temple.

This appeal, arises out of an application made under Clause 65, in the form of tin execution petition, charging the trustees with a number of acts

and omissions in breach of the terms of the scheme, ''that they have money dealings with the temple, that they have unauthorisedly lent temple

funds, that they have failed to invest funds in the prescribed manner that they have passed illegal and invalid resolutions, etc. The learned

Subordinate Judge had dismissed this application, and the preliminary objection has been raised before us that no appeal lies from his order. It is

contended that it is not an order passed in execution of the decree, and we have been referred to several cases of this Court in support of this

view, e.g., Abdul Hakim Baig v. Burramiddin 1926 Mad 559 and Sivaram Dubai v. Rajagopala Misra 1930 Mad 918. We have however thought

it best not to decide this point More looking into the merits, as it seems probable that if the view of the learned Subordinate Judge is incorrect, a

question of jurisdiction will be involved and it might still be necessary for us to interfere in revision. The learned Subordinate Judge has not

expressed his conclusions with great clearness. But we take it that he has decided, in the first place, that Clause 65 does not contemplate the

presentation of a petition complaining of such acts as are alleged against the trustees, and, secondly, that, if the petition falls within the terms of

Clause 65, that clause itself is ultra vires. As to the former of these two points, we think that the clause is expressed in such wide terms that it will

cover all kinds of irregularities by the trustees '' in discharging the duties of their office. It is unnecessary to examine this point further, because we

think that the application must fail upon the second objection, that a provision in the terms of Section 65 is unenforceable. It is quite clear both from

its language and from the illustration which it receives from the circumstances of the present ease, that its effect would be to invest the Court with

wide general powers and duties of superintendence over the institution in question.

Whenever two or more worshippers think that the trustees are not discharging their duties properly, they may present a petition to the Court

and. the Court thereupon must step in and give its directions as though it were a superior governing body. This would be such an assumption of the

management of the trust by the Court as has been deprecated in the Pull Bench case, Veeraraghavachariar v. The Advocate-General Madras

1927 Mad 1073. We think that any pro-vision in-a scheme which gives the Court jurisdiction of this special character is clearly ultra vires. It may

be, as has been found in Ramanatham Chettiar v. Balajee Ammal 1928 Mad 61, that some provisions in a scheme are capable of execution. It is

unnecessary to pronounce here upon that general question. But it is not competent to the framers of a scheme to provide that where the ordinary

law requires that a suit shall be brought, an application may be substituted for it. In many instances especially where, as in the present case, the

allegations amount to charges of breach of trust, such an application would run counter to the terms of Section 92, Civil P.C., and would evade the

safeguards imposed by that section. In Abdul Hakim Baig v. Surramiddin 1926 Mad 559, where a scheme provided that an application might be

made to the Court for the alteration or modification of the scheme, it was held that this was opposed to the provisions of Section 92 and was ultra

vires. Even where the subject-matter of the petition would not fall within the terms of Section 92, it seems clear that no scheme can give to the;

Court a special jurisdiction any more than private persons, by contracting together, can give the Court power to deal in a particular way with any

matter which arises between them. It has not been suggested that because the scheme has been incorporated in a decree it acquires any greater

validity so far as binding'' the Court is concerned ; and merely to say that the relief sought is sought in execution of the decree is not to answer this

fundamental objection to such a provision as is contained in Clause 65. We agree with the learned Subordinate Judge that if the petitioners wanted

to compel the trustees to comply with the terms of the scheme, they must have recourse to a suit. We accordingly dismiss the anneal with costs.