V. Rama Das and Others vs K. Hanumantha Row

The plaintiff''s suit is for a declaration that he is the rightful Dharmakartha of the plaint temple and for reinstatement in the office and also for an

injunction restraining the defendants from interfering with him in that office. The plaintiff''s father was dismissed from the office of Dharmakartha in

1902 and died in 1905. In 1903 a suit was filed by the 1st defendant and another u/s 539, Civil Procedure Code, and a scheme of management

was framed in December 1903 under which the defendants were appointed trustees of the temple (O.S. No. 10 of 1903 in the District Court of

Kistna). The plaintiff has filed the suit on attaining majority. In this appeal three points arise for determination : - (1) Is the suit maintainable without

a prayer for possession of the property belonging to the temple? (2) Can the plaintiff bring this Suit in view of the scheme framed u/s 539, Civil

Procedure Code? (3) Has the plaintiff a hereditary right to the office of Dharmakartha?

No definite issue was framed on the first point as Mt was not specifically taken in defendants'' written statement, but there is an issue (No. 9)

whether the plaint is properly stamped"" which is said to cover this point. We think from the District Munsif''s reference to the rulings in Govindan

Nambiar v. Krishnan Nambiar ILR (1882) M. 146 and Sanachala v. Manika ILR (1885) M. 516 that his attention was chiefly directed to the

question of stamp duty and not to the question of maintainability of the suit, but the latter having been very definitely raised in appeal must now be

decided. The Advocate-General, for the appellants, contends that the ruling in Ratnasabapathi Pillai v. Ramasami Aiyar ILR (1910) M. 452

passed since the decree appealed concludes the question. We think, however, the present case is distinguishable. In Ratnasabapathi Pillai v.

Ramasami Aiyar ILR (1910) M. 452 the suit was for a declaration that the plaintiff''s dismissal was invalid, for an injunction and for damages, the

injunction being valued at a nominal sum of Rs. 10. In the present suit the plaintiff asks for reinstatement in office; that is, be sues for the office and

for an injunction and values his relief at Rs. 2,600 which is a very substantial relief. He further states in his plaint that the temple properties are in the

possession of tenants ""who will pay the rents to whosoever holds the office of Dharmakartha."" This statement is not traversed in the written

statement and must be accepted as correct. If therefore plaintiff gets possession of the office of Dharmakartha, the tenants will pay rent to him and

the plaintiff will ,obtain all the possession to which he is entitled, i.e., tile right to collect rent. The cases relied on - Ratnasabapathi Pillai v.

Rangasami Aiyar ILR (1910) M. 452, Abdul Kadir v. Mahomad ILR (1870) M. 15, Narayana v. Shankunni ILR (1891) M. 255 and Jagannadha

Chary v. Rama Rayar ILR (1904) M. 238 - can all be distinguished from the present case as in all these cases the possession of the property may

be said to have been adverse to the plaintiff and Would have continued to be adverse even after the plaintiff had obtained the declaration sued for.

Here it is admitted that the lands tire in possession of persons who are willing to pay rent to the plaintiff as soon as he recovers the office of

Dharma. kartha and consequently the success of his suit-for the office will involve his recovery Of the temple property so far as it is possible for

such recovery to be obtained, In a similar case. Kunj Bihari v. Keshar Lal Haralal ILR (1904) B. 567 Jenkins C.J. remarked :""How would

practical effect be given to an award of possession of an office otherwise than by preventing interference with the rights of which it is made up?

and this is very applicable in the present case. The lauds attached to the a temple do not belong to the Dharmakartha who is merely the manager,

but belong to the temple or idol, the Privy Council having held that an idol may be regarded as a juridical person capable of holding property -

Jagandindra Nath Roy v. Hemanta Kumari Debi ILR (1905) C. 129. If the plaintiff in this suit were to get a decree for possession of the office and

also of the lands belonging to the temple, what possession of the lands could be given by the court other than plaintiff will admittedly obtain on

recovering the office, i.e., the right to collect rent from the tenants in possession? Assuming also that the consequential relief referred to in Section

42, Specific Relief Act, is a relief against the defendants in the suit and not against third parties--vide Subramaniam v. Parameswaram ILR (1887)

M. 116 - the defendants in this suit could not give the plaintiff physical possession of the temple property as the physical possession is outstanding

in the tenants. We think, therefore, that the proviso to Section 42 is no bar to the present suit.

As regards the third question we think the Subordinate Judge''s finding that the office of Dharmakartha is heredity in the plaintiff''s family is

correct. Members of the plaintiff''s family have held the office continuously since 1797 and there is no evidence that it was ever held by any other

family. This is, we think, sufficient to prove the hereditary right which was in effect put forward in 1870 (Ex. A.) and does not seem to have been

denied.

The only remaining question is whether the plaintiff can bring this suit in view of the scheme framed in O.S. No. 10 of 1903. The plaintiff''s

guardian applied to be made a party to that suit but his application was opposed by the plaintiffs in the suit of whom the 1st defendant, is one and

was, dismissed. In that suit, therefore, the defendant''s claim to the office of Dharmakartha was, not considered, but notwithstanding this, the

Advocate-General contends that no suit. Will lie except one u/s 539, Civil Procedure Code, to modify the scheme already framed. The plaintiff''s

present Suit is one to enforce a private right and consequently is not one contemplated under the provisions of Section 539, CPC - Budree Das

Mukim v. Mhooni Lal Johury ILR (1906) C. 789. Even if the suit could by a stretch of language be considered to allege a breach of the trust by

the court which framed the scheme, the plaintiff could not bring the suit u/s 539, for he alone is interested in his own claim and under that section

the suit must be brought by two or more persons having an interest in the trust and there is no reason to suppose that any one would join the

plaintiff in a suit framed to benefit the plaintiff alone. In this view the plaintiff cannot sue u/s 539 merely to establish his suit as hereditary trustee.

Then arises the further question whether the decree u/s 539 takes away the plaintiff''s right to bring a suit which he could certainly have brought

before such a scheme was framed. It is contended for the appellants that the scheme framed u/s 539 is binding on the world or at least on all

worshippers of the plaint temple. If by ""worshippers"" we mean all, persons who may happen to worship in the plaint temple then the term will

include not only the regular worshippers but a large number of outsiders who profess the same religion. If the scheme is binding on all worshippers

it practically means that it is binding on the world. Can it be said that decrees u/s 539 have that effect? Reference has been made to the English

Law on the subject and ""we were at first doubtful whether that law could be applied to suits u/s 539, but in Prayag Dossji Varu Mahant v.

Tirumala Srirangacharlu Varu ILR (1905) M. 319, we find the following observations (at p. 324) : ""The enactment of Section 539 was long after

the passing of the Eaglish Trustees Act of 1850. Presumably therefore that section may be taken as intended to confer upon the courts in this

Country the same power that the courts in England possessed at the time of its enactment * * * that the Sigh Courts and District Courts in this

country to which the jurisdiction is confined possess the same practically unlimited jurisdiction as the Court Of Chancery in matters relating to

administration of public charities, religious or otherwise, was taken for granted in Chintaman Bayaji Dev v. Dhondo Ganesh Dew ILR (1888) B.

612, and Annaji v. Narayan ILR (1896) B. 556. This case went upon appeal to the Privy Council see Pryag Dossji Varu Mahant v. Tirumala

Srirangacharlu Varu ILR (1907) M. 138 and no exception was taken to the above remarks in their Lordships'' judgment. We may take it,

therefore, that courts in India have the powers possessed by the Court of Chancery and we may apply the principle of English Law in this case. In

Attorney-General v. Worcester (1851) 9 Harc. 228 it was held that schemes settled by court are not altered except upon substantial grounds and

in In re Petton''s Charity (1907) 77 L.J. Ch. 193 it was held that a scheme remains in force only until further orders or the establishment of a new

scheme. Provisions in schemes may also be varied such as the number of Governors Brawn''s Hospital v. Stanford (1889) 60 L.T. 281 etc., and in

In re Sakeford''s Charity (1861) 5 L.T. 488 it was held that a court will not, upon the motion of one of the interested parties, alter scheme which it

has settled with the approval of the Attorney-General. The principle adopted is apparently that a scheme once settled by court cannot be altered

except by the court and then only on substantial grounds. This would seem to preclude suits between parties to establish a private right which, if

established, would interfere with a charitable scheme settled by court. No doubt it seems a hardship that the plaintiff should be precluded from

suing to establish his private right, for ordinarily every person can be granted the relief to which he is entitled, but this principle cannot override the

claim of the public and & charitable scheme settled by court must be considered to have been settled for the benefit of the public. We must would,

therefore, that the plaintiff cannot maintain the present suit against the trustee, appointed under the schedule. The District Judge ought not to have

refused the plaintiff''s guardian''s application to be made a party to the scheme suit and the plaintiff may have been seriously prejudiced thereby. In

any case his inclusion as a party would have finally decided his right to the trusteeship one way or the other. The erroneous order of the District

Judge cannot, however, affect the plaintiff''s right to sue, and although it may be prejudicial to the plaintiff it cannot give him. a right to sue which he

otherwise would not have had. If plaintiff''s present suit were decreed it would have the effect of very materially altering a scheme framed by the

court without impleading the other persons interested in the scheme and would be as inequitable towards them as the refusal to entertain the

plaintiff''s suit is to him. The plaintiff''s only remedy, if any, would seem to be to induce the Collector to ask for a modification of the Court''s

Scheme taking action u/s 539 or rather Section 92 of the new Civil Procedure Code. We therefore think that the plaintiff''s suit is not maintainable

in view of the scheme settled in O.S. 10 of 1903 and would in allowance of the appeal dismiss this suit with costs throughout.