Rajagopal vs Balachandran and Others

Prabha Sridevan, J.—The petitioner and the three respondents are the trustees of Kottur Rangasamy Mudaliar trust (''KRM Trust'') in

Short). The first respondent is the Managing Trustee. A scheme decree was passed by the scheme Court viz District Court, Tanjore. Thereafter,

the trustees who were then on the Board of Trustee filed several appeal for modification of the scheme and by the judgment dated 6.12.1916, the

scheme was modified by a Division Bench of this Court. Para 25 of the scheme Decree as modified by this Court gave liberty to the parties to

apply to the District Court, Tanjore for further directions in the future. The petitioner herein filed I.A.No.7 of 1998 before the scheme Court to

enquire into the facts of commission and omission and to pass such orders and give such directions as are proper and necessary for the better

administration of the Trust Estate. This was dismissed by the Scheme Judge namely, the Principal District Judge at Nagapatinam and therefore, this

revision has been filed.

Pending revision, C.M.P.No.6131 of 2001 was filed by a third party to the petition who was a Judge of this Court and the Karnataka High

Court and thereafter, the Vice Chairman of the Central Administrative Tribunal. In his affidavit filed in support of the petition he has indicated that

the objects of the Trust should be fully implemented and the Trust should be preserved. His grievance is that many of the laudable objects of the

Trust have been allowed to fall into misuse and he prays that this Court should exercise its pareus patriae control over the Trust, and regularise the

activities of the Trust so that the intentions of the founder are fully carried out. The affidavit makes it clear that he is not interested in being put in

management of the Trust but he seeks to implead himself only as a member of the founder''s family.

Mr. T.R. Rajaraman, learned counsel for the third party petitioner reiterated the averments made in the affidavit and prayed that the impleading

petition should be ordered. He relied on the decision reported in Kannan Adityan v. Adityan 1996 (2) L.W. 364 to support the case of impleading

petition.

Mr. V.K. Vijaya Raghavan, learned counsel for the respondents 2 and 3, who are the respondents t and 2 in the main revision strongly opposed

the impleading petition. He submitted, that the petitioner in this civil miscellaneous petition is not a ""person interested"". There are references to the

Will in the affidavit which are irrelevant because the scheme framed by the District Judge and modified by this Court would supersede any such

testamentary instrument and that this third party also is not necessary for deciding the revision. He also submitted that the affidavit does not bring

out any specific act of misfeasance and malfeasance and the allegations are very vague. He further referred to the communication sent by the

petitioner in the civil miscellaneous petition congratulating the respondents for their good work in managing the Trust and that itself would disprove

the allegations of misfeasance and malfeasance. He relied on Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and

Others, and Sangamesh Printing Press v. Chief Executive Officer 1999 (6) SCC 441.

In Kannan Adityan v. Adityan 1996 (2) L.W. 364 the Division'' Bench of this Court held that even a person who had given up his claim to

trusteeship and who had not done anything to show his interest in the Trust can still be a person interested.

... It does not preclude him from initiating proceedings to protect the interests of the Trust as and when he finds that they are in jeopardy and the

Trust, is not managed properly.

In R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, , which was referred to in this case, the Supreme Court

held thus:

The legal position which emerges is that a suit u/s 92 of the Code is a suit of a special nature for the protection of Public rights in the Public Trusts

and charities. The suit is fundamentally on behalf of the entire body of persons who are interested in the trust. It is for the vindication of public

rights. The beneficiaries of the trust, which may consist of public at large, may choose two or more persons amongst themselves for the purpose of

Filing a suit u/s 92 of the Code and the suit-title in that event would show only their names as plaintiffs. Can we say that the persons whose names

are on the suit-title are the only parties to the suit? The answer would be in the negative.

In Sangamesh Printing Press v. Chief Executive Officer 1999 (6) SCC 441 it was held thus ,

Civil Procedure Code, 1908 Order 1, Rule 10 (2) and Order 27, R5-A -- Where application under Order 1 Rule, 10(2) filed seeking to imp lead

State Govt. as a defendant, held such application must be decided before appeal is heard.

In Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, : it was held thus:

Civil Procedure Code, 1908 Order, 1 Rule 10(2) Addition of necessary party Court has judicial discretion which it has to exercise having regard

to facts and circumstances of the case. In exercise of this discretion court can direct a plaintiff, though dominus litis, to implead a person as a

necessary party defendant

In this case, the learned counsel for the contesting respondent strongly urged that the person seeking to implead himself had long ago left

Mannargudi and has not been interested in the Trust and there was no need for him to be impleaded. It is not in dispute that the founder and the

impleading petitioner belong to the same community. One of the clauses in the scheme provides for education of the boys belonging to that

community and for hostel for them. The fact that a person moves out of his native village because of his profession or occupation does not mean

that he ceases to have an interest in any Trust or schemes that are for religious, charitable or secular purposes. From the decisions relied on and

referred to above it is clear that in matters pertaining to the Trusts, the suit is fundamentally and basically on behalf of the entire body of persons

who are interested in the Trust and if a person interested in the Trust has reason to believe that certain activities of the Trust are not for the benefit

of the Trust it is surely open to him to raise objections to such action.

In fact in the decision reported in R. Venugopala Naidu and Others Vs. Venkatarayulu Naidu Charities and Others, , the Supreme Court held

that such interested objectors need not even be parties to the suit. The named parties are representatives or the public, who are interested in the

Trust. The telegram referred to by the learned counsel for the respondent in which the impleading petitioner had congratulated the first respondent

herein for his activities as Managing Trustee would itself show that he had been concerned with the activities of the Trust and interested in the

proper-conduct of the Trust. Therefore, he cannot be said to be not a person interested. However, a proceeding of this nature is not purely

adversarial. The obligation of the Court is to protect the objects of the scheme and see that they are conducted properly and the intention of the

impleading party also seems only to bring to the notice of the Court that everything is not alright in the conduct of the KRM Trust. It is open to the

petitioner to apply to the Scheme Court if he so desires to implead himself in any proceedings but I do not think it is necessary to implead him in

this revision though his interest in the conduct of the Trust cannot be denied. C.M.P. is therefore, dismissed.

With regard to the main revision, Mr.R. Subramanian, learned counsel for the petitioner submitted that the scheme provides that there shall be

four trustees on the Board. The founder trustee who had been named in the scheme itself, was also the Chairman Trustee. Thereafter, the scheme

had provided for appointment of the heirs of the said trustees on the death, resignation or removal of the original trustees and if there are more than

one such heir the eldest shall be the trustee, in that line. If any of the trustees the without leaving any heir a new trustee shall be appointed in his or

her place by the District Court of Tanjore. According to the learned counsel, the first respondent had got his wife appointed in a vacancy that had

arisen. At present the trustees are the first and second respondent who are husband and-wife, the petitioner is the brother of the first respondent

and the third respondent who is their sister. The 1st respondent is the Chairman Trustee. The Scheme provides that the Chairman Trustee shall

have the casting vote. Therefore, this had reduced the petitioner and the third respondent to the position of a voiceless minority, because the

husband and wife would push through any proposal which suits them with the first respondent as the Chairman Trustee exercising the right of

casting his vote. So the Trust was autocratically run by the first respondent. He submitted that it is for this reason that the present interlocutory

application was filed and the Court below had declined to look into the matter stating that the petitioner should file a separate suit. According to the

learned counsel the scheme has been framed and any modification with regard to the working of the Scheme can always be done by way of an

application to the Scheme Judge.

The learned counsel for the contesting respondents submitted that the District Judge, who is the Scheme Judge is already in control, directly

supervising the administration of the Trust. Any person aggrieved by a particular act of the Chairman/Trustee can always file an application before

the Scheme Judge who will look into the matter. According to the learned counsel, right from 1993 the petitioner has not been attending the

meeting and after failing to participate in the regular meeting it is not open to the petitioner to filing accusations against the respondents. He also

submitted that the second respondent was appointed by the Resolution, dated 17.6.1991, which was also passed by the District Judge. He

relevantly pointed out that this Resolution was also signed by the petitioner and the third resppndent. Therefore, the petitioner cannot now attack

the appointment of the second respondent as a trustee on the ground that she is not a heir. The appointment of the second respondent did not

suffer from any illegality. He submitted that there is no proof of misfeasance or malfeasance or misconduct. The Trust has a Registered Office and

the records and accounts are always available for perusal and the petitioner having kept away cannot now complain that things are not in order. He

also submitted that one of the grievances of the petitioner is that the servants of the Trust are not giving him respect. Since one should earn respect

and not demand respect, no blame can be laid at the door of the first respondent if the servants of the Trust did not respect the petitioner. He

submitted that none of the allegations have been substantiated and therefore, there is no justification for the removal of the first or the second

respondent as a trustee or for enquiry into the so-called misconduct. He pointed out to the issues framed by the Scheme Judge. Issue No. 1 was

with relation to the entitlement of the second respondent to be the trustee since she was not a heir of the formal trustees. The second issue was with

reference to the acts of misconduct of the first respondent and the consequent removal. According to the learned counsel both these two issues

deserve no consideration. The former issue is of no merit because the petitioner himself had consented to her appointment and the District Judge

had also appointed her in accordance with Clause 4 which provides for the appointment of the new trustee by the District Judge, Tanjore if any

trustee dies without leaving a heir. With regard to one of the allegations that the Vedapatasalas have not been conducted which are one of the

objects of the Scheme, Mr. V.K. Vijaya Raghavan produced several receipts issued by Srimath Andavan Ashramam of Srirangam. According to

the learned counsel there was no response from the persons at Mannargudi for running the Vedapatasalas. Therefore, it was resolved by the

trustees that they would assist financially the Vedapatasala alone, by the Andavan Ashramam at Srirangam. He referred to various projects which

had been initiated by the first respondent as the Chairman of the Trust and he submitted that no one else complain of any improper functioning of

the Trust except the disgruntled brother , who is the petitioner herein. According to the learned counsel, the District Court had rightly dismissed the

application .

Before dealing with this revision one must remember that it has been repeatedly held that Courts have a general parens patriae jurisdiction over

trusts of charitable and religious nature. Any application filed whether under the Indian Trusts Act or otherwise in respect of any such Trust should

be dealt with by the Courts not as a purely adversarial litigation where allegations may have to be proved and if not the Courts can refuse to take

cognizance of the same. In these cases Courts are bound to zealously guard the interest of the Trust since the question of public interest is also

involved.

The finding of the learned Judge that a separate suit has to be filed must be rejected outright since the scheme framed by the Bench of this

Court had clearly provided for the parties to approach the District-Judge for any directions or modifications. Therefore, the continuous control

vests with the District Judge who shall exercise his jurisdiction, when his directions are sought for or allegations are made warranting enquiry into

the affairs of the Trust. The Court cannot wash its hands of the matter. The learned Judge while dealing with the issue regarding the election of the

first respondent as the Managing Trustee without waiting for the petitioner and the third respondent, rejects it on the ground that though notice was

sent regarding the meeting to be held for appointment of the Managing Trustee, the other two trustees did not attend the meeting and therefore, the

election of the first respondent as Managing Trustee was passed and properly accepted by District Court. The District Court, it must be said, has

not adverted its attention to what was actually happening in the Trust. The complaint of the petitioner is that by inducting his wife as trustee, the first

respondent has virtually obtained a stranglehold over the affairs of the Trust. There are four trustees. The first respondent and the second

respondent who are husband and wife, and the petitioner and the third respondent. As per Clause 8 of the Scheme half of the trustees shall form a

quorum. Therefore, the presence of the first respondent and the second respondent will constitute a quorum and they really do not need the

presence of the others. The Managing Trustee has the right of casting vote. So, any project or proposal, launched by the first respondent would be

supported by the second respondent and in the event it is opposed by the petitioner and the third respondent, the first respondent as Chairman

Trustee will exercise the right of casting vote and the deed is done. The presence of the petitioner and the third respondent has been reduced to

cypher. A similar situation arose about 80 years ago in the Parthasarathy Temple at Madras that caused anguish to the Judges who dealt with the

suit u/s 92, CPC. There were three trustees. There was a confrontation between two of them and the third, who was the second defendant was a

Yes-man to one of the trustees. This is what the learned Judges say,

It is also established that at least for some years past the first and second defendants have been always agreeing together and been practically of

one opinion in all matters. The necessary result of this has therefore been as though there were for the institution not three trustees but only two. If

defendants 1 and 2 had always agreed to agree on every question, the position of the third defendant is reduced to perfect nullity and helplessness.

This ended in the tyranny of the majority in all its well-known forms.

..So far as the 1st defendant is concerned, though we have felt bound to come to the conclusion that none of the individual charges made against

him of misconduct and negligence has been sufficiently made out to justify his dismissal from office, still we feel we cannot entirely overlook the

cumulative effect of the whole.

..Such a person is sure to feather his nest-so to say, by manning the establishment with relations and friends and also otherwise bring influence to

bear on the electorate so as not only to secure his return to the office in any election certain but also practically to make it impossible for another

trustee to carry on the administration on the affairs. We are also satisfied that though the 1st defendant has not committed any acts amounting to a

gross and serious breach of trust, still he has been all along sailing as close to the wind as he dared.

...As regards the 2nd defendant, it is abundantly clear that for some considerable time had has been a sort of a cypher so far as temple affairs are

concerned, but unfortunately a cypher that has made up his mind to stand always by the integral 1st defendant.''

The position is very similar here. The second respondent is there only to agree to the first respondent on every question. Therefore, the institution is

being administered not by four trustees but by two trustees who act as one. In fact, as held by the learned Judges in the above case, even if none of

the individual charges have been made out or proved, still the total effect of tyranny of the majority cannot be overlooked. The District Judge ought

not to have dealt with it merely by looking at service of notice and the existence of the quorum and consequent passing of resolutions. It is apparent

without any deep investigation that there is total and absolute control of the affairs of the trust by the first respondent alone reducing everyone else

to the status of voiceless participants. It may be that he has acted all along in the interest of the Trust. But, when the scheme provides for the

presence of four trustees, then it means that the voices of each of the trustees should be heard. They have the power to realise funds by sale or

conversion of the immovable property and investing them in approved securities. They have the power to lease out the immovable property

belonging to the trust for the best rent available. It is not denied that the trust owns vast extent of immovable and movable properties. The averment

made in the petition that, the annual interest alone from the trust properties amounts to a sum of Rs.20 lakhs has not been seriously denied. The fact

that the trust has at its disposal vast funds is apparent from the fact that a donation had been made to the Lions Club, Tiruvarur for a sum of Rs. 1

lakh, in favour of the Eye Hospital. In fact, this donation was made initially without getting proper approval and thereafter, it appears to have been

ratified. The learned Judge has held that no fault can be fastened on the first respondent for this because donation had been given for a laudable

object. The point that the learned Judge failed to see was that the funds that have been parted with are trust funds and not an individual''s money

that can be disbursed at his will. It is precisely this attitude of the first respondent to take decisions unilaterally without the concurrence of the other

trustees, which is the basis of the petitioner''s grievance. Whether it is a laudable object or not, the Trust should not function autocratically without

hearing all the trustees. This Trust has been functioning like that

The learned Judge has dealt with the various allegations made by the petitioner one by one. The learned Judge had correctly arrived at the

conclusion that the Board of trustees is spilt into two units one consisting of respondents 1 and 2 and the other consisting of the petitioner and the

third respondent. As regards the propriety of the appointment of the second respondent, he arrived at the conclusion that the second respondent

had been appointed by a proper resolution placed on the board of trustees which was subsequently approved and ordered by the scheme Judge in

I.A.No.230 of 1991. The scheme court therefore, answered the first issue in favour of the second respondent, that her appointment was in order.

As regards the other allegations made by the petitioner, the learned Judge as stated earlier held that there can be no modification in the scheme

which gives the Managing Trustee the right of casting vote since the scheme has been framed by the High Court and the District Judge, who is

subordinate to the High court cannot alter the scheme. The learned Judge failed to see that even the High Court directed the parties to approach

the District court as and when it was necessary. If a trustee was found guilty of misconduct, definitely the Scheme Judge has the power to remove

the trustee. It a particular object of the Trust becomes incapable of performance, the Trustees can approach the Scheme Judge for directions. The

Scheme Judge can pass such orders as are necessary to advance the object of the Trust.

In this case, the allegations are made against respondents 1 and 2 and the manner of their functioning. The District Judge cannot evade the

responsibility of deciding this issue saying that the Scheme has been framed by the High Court. If, because of the power of casting vote irregularity

has arisen in the functioning of the Trust, the District Judge has the power, nay he owes the duty to protect the Trust. Therefore, the Trial Court

was wrong in deciding that he does not have the power to set aside the appointment of the second respondent or to regularise the functioning of

the Trustees in any manner. As regards the complaints made by the petitioner, the learned Judge rejects them on the ground that these complaints

were not duly lodged at the Registered Office of the Trust and no material was placed before the Court regarding the persons who prevented the

petitioner from lodging the complaints and therefore, for this reason alone the District Judge has accepted the first respondent''s case that these

allegations should be rejected. While dealing with the petitioner''s complaint that several short term deposits in Banks had been made and

transferred from the Banks where they were initially deposited to other Banks and for this proper permission had not been obtained. This also is

rejected by the District Judge on the ground that the transfers of deposit had been effected only after resolutions were moved in the Board and

duly passed. But as we have considered already the composition of the quorum is the husband and the wife, respondents 1 and 2, who act as one

unit and therefore, there would have been no difficulty in these resolutions being passed without any demur. The District Judge ought to have

enquired, why these short term deposits were made; whether the decision to make short term deposits and not long term ones was arrived at in the

interest of the Trust; what was the reason for transferring the accounts from one Bank to another; whether these transfers were in the interest of the

Trust. Since the first respondent has the majority to move any resolution as per his desire, the District Court has the heavier burden of testing each

decision against the touchstone of interest of the Trust.

In Ex-P2, third column as against the remitted expense of Rs.8000 there was an expense of Rs. 11,775. There was a specific endorsement in

this exhibit, which is an Audited Report that for the extra expense, the Scheme Court''s acceptance should be obtained. The District Judge has

rejected this on the ground that the petitioner is unable to say whether the District Judge had ratified the lapse or whether the money was spent

wrongly. What the District Judge ought to have seen is that the Trustee namely the first respondent has been spending in excess without obtaining

the approval of the Scheme Judge. The other complaint which was dealt with by the District Judge is regarding the donation to the Lions Club,

Tiruvarur which has already been dealt with. The petitioners complained that the lease from the cultivating tenant has not been properly recovered

is rejected by the District Judge on the ground that there are great difficulties in evicting cultivating tenants and to recover the arrears of lease.

Finally, the Trial Court has held that the resolution to nominate the first respondent as the Chairman Trustee is proper. The Chairman Trustee has

been continuing for more than three terms. When the ground reality of the composition of the quorum is taken-note of, even if there is no actual

mischief, it cannot be denied that there is scope for the Chairman Trustee to function without any control. It may be that the Trust has been

functioning well and there has been no lapse. But it is evident that the control of the first respondent is total. Atleast where the election of the

Chairman Trustee is concerned, the District Judge could have considered whether the continuance of the same person as Chairman Trustee is in

the interest of the Trust.

The Scheme framed by the High Court does not indicate the mariner in which the Chairman Trustee is selected. Clause 8 provides that

Gopalsamy Mudaliar one of the original trustees shall preside as Chairman Trustee so long as he remains trustee and if he be absent at any

Chairman meeting the trustees present shall appoint a Trustee amongst themselves. This at least seems to indicate that there will be voting amongst

the Trustees present, to elect the Chairman Trustee. Ofcourse, at that time the present contingency would not have been conceived, where a

husband and wife had got themselves nominated to the Board of Trustees and function as one, thereby having the power to scuttle the efforts or

intentions of the other Trustees. In these circumstances, if the Trustees are agreeable to take the Chairman Trusteeship in turn it is open to the

District Judge to accept that arrangement. In the decision in Veeraghava Achariar v. V. Parthasarathy Iyengar, AIR 1925 Mad. 1070 the Bench

has expressed its anguish that the manner in which Trusteeship of institutions like the one in the case on hand are looked upon as places of prestige

and profit and people continued to stick on to them regardless of the onerous and serious responsibilities. I can do no better than to quote a

passage from the said judgment.

In this connection we may take leave to observe that it is highly regrettable that trusteeships of temple and similar institutions should be looked

upon as places of prestige and profit and that people should be found who are desperately anxious to be elected to such places or to continue to

stick to them in spite of the onerous and serious responsibilities thereof. The true spirit in which such offices should be accepted or retained is the

spirit of service and sacrifice in the interests of the public and of the institutions. So long as such offices are regarded not as posts of duty and

responsibility but as opportunities of personal aggrandisement, the affairs of such institutions are bound to be unsatisfactory. In this view no doubt,

schemes, under which there should be candidates for trusteeship and elections to such offices are largely incompatible with the true spirit that

should prevail but it is the dream of democracy that there may be candidates who are pressed by public opinion to accept office if elected and that

there may also be elections which truly reflect the highest principles of election. The history of the temple from 1877 shows how baseless such

hopes were. But the abolition of the election principle may cause so much discontent that it seems better to allow hope to triumph over experience.

It may not also be inappropriate in this connection to refer to the manner in which persons who accept such places of public trust and responsibility

should be regarded and treated by the public generally. It is the duty of the public to realise that those who accept such offices and seek to

discharge them to the best of their ability are after all engaged in what is generally called a thankless task and that therefore the holders of such

offices should be regarded and treated by the public with great consideration and sympathy. The habitual attitude of the members of the public to

find petty faults with and throw stones at them on every possible occasion brings about a state of things in which men of capacity, character and

position in society being afraid to accept such offices keep aloof, thereby necessarily making it inevitable that such offices should be scrambled for

by less acceptable persons. It may also be here pointed out that once a person accepts an office of trusteeship, the one governing consideration in

his mind, the ruling motive for all actions the one principle by reference to which all his acts should be determined, is the interest of the institution

and that alone; and in our judgment persons who though holding a fiduciary position allow their actions to be prompted by any other

considerations, motives or principles are as much guilty of breach of trust as persons who may be found actually guilty of misappropriating property

belonging to the trust. We are not at all sure whether so far as the trust itself is concerned, the results, of such a fundamentally wrong attitude on the

part of trustees, are not often times more insidious and disastrous to the trust than any misappropriation of funds. After giving the whole matter our

earnest and anxious consideration, we have come to the conclusion that the continuance in office of the present board of trustees with its personnel

is absolutely inconsistent with the proper management of the temple and its affairs and is likely soon to prove disastrous to its interests.

If anything has been abundantly and satisfactorily established in the course of the trial of this case, it was the utter incompatibility of the defendants

amongst themselves and the fundamentally wrong attitude assumed by them with regard to the affairs of the temple. The facility which they have

allowed their actions to be governed not by any consideration of the interests of the temple but by personal prejudices and piques.

The Bench referred to the Privy Council judgment in Letterstedt v. Broers 1884 (9) A.C. 371. The Privy Council took the extreme step of

removing the Trustees from trusteeship because they felt that in view of the hostility between the Trustees,'' the benefit of the Trust would be best

served if they are removed. In N.S. Sved Abdul Fatah Sahib v. S. Saha Syed Sahib 2000 (3) L.W. 433 this Court held that the District Court

which framed the Scheme has the power to order removal of Trustee which is unfit.

The Trustee would hold the post as a Trustee only, at the Will and pleasure of the Scheme Court. There is no independent existence as a

Trustee, but for the scheme. The Scheme Court will have all powers to regulate the conduct of business to administrate the Trust to the best of the

interests of the Trust and see that the objects for which, the Trust was created, was properly carried out. As held in AIR 1934 53 (Privy Council) ,

the primary duty of the Court is to consider the interest of the public for whose benefit the trust is created and the court will be justified in deciding,

in the exercise of its discretion, that the particular trustee should be removed for the act of mis-management of mis-feasance.

I do not accept the contention that there is no power vested with the Supreme Court to order removal of a Trustee. It cannot be stated that if a

trustee has to be removed relating to a trust, which is being controlled and administered under a scheme of the Court, that proceeding should be

initiated u/s 92 of the Code. When the Scheme Court has power to appoint a Trustee, equally, the Court has power to remove the trustee. A

trustee who is found unfit can always be removed by the Scheme Court. There is no need or necessity for obtaining sanction of the Advocate

General u/s 92 of the Civil Procedure Code. The Supreme Court has also pointed out in the decision reported in Raje Anandrao Vs. Shamrao and

Others, approving the view of the Bombay High Court that a Scheme Court can modify the Scheme.

In the same judgment the learned Judge has answered the objection raised by the learned counsel for the respondent in this case that when the first

respondent has done good service to the trust he should not be found fault with.

Learned counsel submitted that he would produce materials to show that he has done service to the Trust and that he has augmented the

income of the Trust. Even assuming that there were materials to that effect with him and assuming that he had placed the same before the Court,

those things could not have had any influence upon the nature of complaint against him. If he had done something good, it is not a thing of which he

can be proud of. After all, he is appointed as a trustee to do good for the Trust and for discharging of one''s duties, no reward can be solicited.

One infraction of the Rule and a breach of Trust are sufficient to dispel the armature of glories. Therefore, the argument of the learned counsel for

the petitioner is without any substance.

The power of the Civil Court, while exercising the jurisdiction as a Scheme Judge has been dealt with in the decision reported in Mahomedatty

Adamii Peerbhoy v. Akberally Abdulhussein Adamji Peerbhoy,. 46 MLJ 333 by the Privy Council, is as follows:

After a reference to the provisions of Section 539 of the Code of Civil Procedure, 1882, which, as far as the question now under consideration is

concerned, are not materially different from the provisions of Section 92 of the CPC of 1908, the judgment in the cited case proceeds as follows:

In giving effect to the provisions of the section and appointing new trustees and setting a scheme, the Court is entitled to take into consideration

not merely the wishes of the founder, so far as they can be ascertained, but also the past history of the institution, and the way in which the

management has been carried on heretofore, in conjunction with other existing conditions that may have grown up since its foundation. It has also

the power of giving any directions and laying down any rules which might facilitate the work of management, and, if necessary, the appointment of

trustees in the future.

Inasmuch as the trust now under consideration is for public purposes of a charitable and religious nature, the primary duty of the Civil Court, which

in this instance has taken the place of the Kazi, was to consider the interest of the public, or that part of the public, for whose benefit the trust was

created, and in view of the facts found by the learned Judge who tried the suit, their Lordships are of opinion that there was ample material before

him to justify him in deciding, in the exercise of his discretion, that the defendants mutawalis should be removed.

It was further in his discretion to make the order of reference to the Commissioner for taking accounts, framing a scheme for the administration of

the trust, and suggesting the names of fit and proper persons of the above-mentioned community to be trustees. Their Lordships are of opinion that

this was in the circumstances of the case not only justifiable, but also necessary, and it is to be noted that the High Court gave a special direction

that the Commissioner should be at liberty to consider the claims of any members of the family including the defendants of the fate Sir Adamji

Peerbhoy to be trustees if otherwise suitable.

Then again in Raja v. Kumaraswami Raja 1955 (68) L.W.244 the Division Bench of this Court had an occasion to consider the Trust known as

Dharma Raja Education Charity Trust, Rajapalayam and after considering the various authorities has held thus:

The result of these authorities is that where trustees have been appointed for the management of an institution which is charitable or religious in its

nature, then even if the document provided for a certain mode of management, still if the interests of the trust require interference Courts have

ample supervising powers over the discretion of the trustee in the management of the institution. See also Lewin on Trusts, 15th Edn., page 336,

where it is stated that if there are sufficient grounds Courts can interfere with the discretion of the trustee.

In AIR 1948 214 (Privy Council) , the learned Judge has held as follows-.

In settling a scheme for the administration of a charitable trust involving the appointment of trustees or managers, the Court is bound to secure

persons whom it regards a suitable. The fact that the Swami desired that the appellant should succeed him does not fetter the discretion of the

Court, or preclude consideration of the conduct of the appellant, both before and since the death of the Swami.

In the light of the above observations, I direct the District Court to call for a meeting of the Board of Trustees to elect the Chairman Trustee. It

is open to the trustees to agree to be Chairman Trustees in turn; or they may elect the Chairman Trustee for which purpose the first respondent

shall not exercise the casting vote; or as held in Raja v. Kumaraswami Raja 1955 (68) L.W. 244 the Scheme Judge can even increase the strength

of Board of Trustees if he is satisfied that interest of the Trust will be served by that. Above all, Courts must remember that they are bound to

exercise a vigilant control over the functioning of the Trust. The welfare of the Trust is the supreme consideration.

The Civil Revision Petition is disposed of with the above directions. Consequently, the connected. C.M.P. is closed.