Thiruvalanjuli Vaidyalingam Pillai Charities and Others vs T.A. Thavasiah

T. Ramaprasada Rao, J.—In this revision petition, Mr. Raman raises an interesting point in the first instance, whether the Court can, on an

application by a descendant of the author of the trust, modify a scheme in a manner not even asked for by him. On a perusal of the records, I am

satisfied that the lower Court acted suo motu rather than primarily on the application made by one of the descendants.

As early as in 1916, a scheme was framed for Thiruvalanjuli Vaidyalingam Pillai''s Charities, in a scheme suit filed for the purpose in the Court of

the Subordinate Judge, Kumbakonam in O.S. Nos. 77 and 78 of 1916. The terms of the Scheme are not in dispute. Inter alia, Clauses 5 and 21

run as follows:

Clause 5 : The management of these charities, its affairs and its properties shall vest in a body of 3 trustees, one of whom shall be a brahmin of the

Saiva or Smartha sect and the other two caste Hindus of the Saiva sect and they shall be appointed by the Court from the permanent residents of

Kumbakonam Taluk. One of the three trustees may preferably and if the Court does not think it unfit, be from among the trustees of the temple

who have been appointed by the temple committee, Kumbakonam under Act XX of 1863 or any Act that takes its place.

Clause 21 : The Court shall have power to alter or amend this scheme according to the requirements of the institution either of its own accord or

on the application of any of the parties hereto or of the trustees or of any five worshippers.

Taking advantage of the omnibus provision regarding the amendment as is seen from Clause 21, one of the daughter''s sons of the founder of the

charities filed I.A. No. 102 of 1973 praying for an amendment of certain clauses in the scheme. He would, in his petition for amendment make

particular reference to Clause 5 and would request the Court to amend it as follows:

The management of the charities shall vest in the line of succession of Kalyanasundaram Pillai, i.e., the eldest son on the line of succession in the

management of the trust properties and the appointment of third party trustees will arise only if there is none in the line of succession of

Kalyanasundaram Pillai.

He suggested certain incidental amendments, but did not go beyond them. The learned Subordinate Judge, after hearing the trustees who are on

the board, referred to the fact that the petitioner owned moneys to the trust that there was a decree for mesne profits and costs against him in O.S.

No. 33 of 1955 on the file of the same court and that execution proceedings for realisation of the same were pending. He entertained a doubt

whether it was advisable to alter the very fundamental character of the charities and convert it more or less into a family trust. After considering the

scope of Clause 5 of the scheme as it is in vogue now, the learned Judge said that having regard to the passage of time, it Was not necessary that

the body of trustees should be appointed on the basis of caste or sect. Having been apprised of the position and he having got seisin of the matter

he exercised jurisdiction suo motu under Clause 21 of the scheme though the subject-matter was brought up to him in the form of a petition by one

of the descendants of the founder of the trust. In exercise of such jurisdiction, the Court came to the conclusion that Clause 5 needs some

modification and amended the same as to read:

The management of the charities and its affairs and properties shall vest in a body of three trustee, professing Hindu religion, appointed by the

Court from the permanent residents of the Kumbakonam Taluk. The management, - Trusteeship shall be held among them in turn, each trustee for

one year at a time.

Consequent upon such an amendment having been made by the learned Subordinate Judge, the trustees have come up to this Court challenging the

order of the Court below.

As I said, Mr. Raman originally raised the contention that the lower Court could not exercise such jurisdiction under Clause 21 when it did not

think about amending the scheme by itself. When such an application was made by the petitioner as a descendant, it should have been treated and

dealt with as such and the Court ought not to have assumed the residuary powers in it to amend the scheme suo motu on the information so

furnished by the petitioner in an application which is not maintainable in law.

No doubt, under Clause 21, an amendment of the scheme is possible and the Court shall have the power to make such alterations or

amendments according to the requirements of the institution, either of its own accord or on the application of any of the ""parties hereto"" or of the

trustees or of any five worshippers. The word ""parties hereto"" obviously referred to the parties who were agitating the subject-matter in 1916 in

the Sub-Court when they sought for the framing of a scheme. The only other categories of persons who could apply for such an alteration or

amendment under Clause 21 of the scheme are (a) the trustees themselves or any one of them and (b) any five worshippers. The petitioner had

undoubtedly no locus standi to apply for such an amendment. He does not fit in the description of the categories of persons who by express

reference in, Clause 21 are permitted to move the Court for alteration or amendments of the scheme. The question, however, remains whether the

suo motu power of the court to amend or alter the scheme is taken away by reason of a person coming to Court seeking for such amendment, but

which application is rot maintainable under Clause 21 of the scheme. Exercise of suo motu powers by Courts or Tribunals which are vested with

them, is not thought of by a mere revelation or by imagination. Courts are prompted to exercise such suo motu powers only when they ate

provoked to do so. Such a provocation to act may occur in myriad ways. On such process by which a Court may be prompted to invoke its suo

motu power is by being apprised of certain matte is and situations. It may be that such a matter or situation has been brought up before it in an

irregular way; nevertheless such appraisement of material and knowledge of situations cannot be lightly ignored by the Court who has the right to

exercise the suo motu powers when it is of the view that such matter and situation requires investigation and consideration at its hands Obviously,

the Court below, on being apprised of the particular situation and after being informed by the petitioner that Clause 5, having regard to passage of

time, needs a revision thought it proper and just to invoke its suo motu power under Clause 21 and amend the scheme. Though, therefore, the

argument of Mr. Raman is attractive in the first instance, yet having regard to the fact that there is no exhaustion of the suo motu powers by reason

of an irregular application made by a third party, the Court in having attempted to amend the scheme decree did not exceed its jurisdiction.

The next question is whether the amendment as was done by the Court below is justified and proper, and whether there has been an irregular

exercise of jurisdiction when the Court amended Clause 5 of the scheme in the manner it did. As already stated, the learned Subordinate Judge has

stated that in the present change of times, it is not necessary that the trustees should be appointed on caste or sect basis. In 1916, when the

scheme was framed, the Court thought of a body of three trustees, one of whom shall be a Brahmin of the Saiva or Smartha sect and the other two

caste Hindus of the Saiva sect. Our country being secular and the Constitution not providing for such differentiation on the basis of caste, the

venture of the learned Subordinate Judge in having enterprisingly cast an amendment to Clause 5 of the scheme decree, is beyond reproach and

condemnation. In fact, Mr. Raman also says that the phrase ""professing Hindu Religion"" being all embracing and as it also includes within its fold

Brahmins or persons who are not Brahmins, he does not attack the language deployed by the learned Subordinate Judge when he modified the

scheme. 1 am also of the view that the modification made by the Judge does not interfere with the spirit of the quondam clause in the Scheme.

There has been, therefore, no irregular exercise of jurisdiction by the learned Subordinate Judge when he altered the scheme by introducing the

expression ""trustees professing Hindu religion"" instead of ""trustees of whom one shall be a Brahmin and the other two caste Hindus"".

In these circumstances, the civil revision petition fails and is dismissed. No order as to costs.