V. Ramados and Others vs K. Hanumantha Rao

The plaintiff''s suit is for a declaration that he is the rightful Dharmakarta 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 Dhurmakarta in

1902 and died in 1905. In 1903 a suit was filed by the first 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 (Original Suit No. 10 of 1903 in the District

Court of Kistna). The plaintiff has filed this 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 plaintiff a hereditary right to the office of Dharmakarta?

No definite issue was framed on the first point as it was not specifically taken in the 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 Nambiari I.L.R., (1882) Mad., 146 and Sonachala, v. Manika ILR (1885) Mad., 516 that his attention was chiefly directed

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

now be decided. The Advocate-General for appellants contends that the ruling in Rathnasabapathi Pillai v. Ramasami Aiyar I.LR., (1910) Mad.,

452, passed since the decree appealed against concludes the question. We think however the present case is distinguishable. In Rathnasabapathi

Pillai v. Ramasami Aiyar I.LR., (1910) Mad., 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, he 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 whomsoever holds the office of Dhartnakarta."" This statement is not traversed

in the written statement and must be accepted as correct. If therefore plaintiff gets possession of the office of Dharmakarta, the tenants will pay rent

to him and the plaintiff will obtain all the possession to which he is entitled, i.e., the right to collect rent. The cases relied on in Rathnasabapathi Pillai

v. Ramasami Aiyar I.L.R., (1910) Mad., 452 i.e., Abdulkadar v. Mahomed I.L.R., (1892) Mad., 15 Narayanan v. Shankunni I.L.R.. (1892)

Mad., 255 and Jagannatha Charry v. Rama Rayer I.L.R., (1905) Mad., 238, can all be distinguished from the present case as in all those 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 are in possession of persons who are willing to pay rent to the plaintiff as soon

as he recovers the office of Dharmakarta 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 Biharji v. Keshavlal Hiralal I.L.R., (1904) Bom., 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 lands attached to a temple do not belong to the Dharmakarta 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--Jagadindra Nath Roy v. Hemanta Kumari Debi I.L.R., (1905) Calc., 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 what

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 Belief Act, is a relief against the defendants in the suit and not against third parties--vide

Subramanyan v. Parameswaran I.L.R., (1888) Mad., 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 Dharmakarta is hereditary 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 (Exhibit 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 Original Suit 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 first

defendant is one and was dismissed. In that suit, therefore, the defendant''s claim to the office of Dharmakarta was not considered, but

notwithstanding this the Advocate-General contends that no suit will now 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, Civil Procedure Code--Budree Das Mukim v. Chooni Lal Johurry I.L.R., (1906) Calc., 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 plaintiff in a suit framed to benefit the plaintiff alone. In this view the plaintiff cannot sue u/s 539

merely to establish his right as hereditary trustee. Then arises the further question where 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 Doss Ji Varu, Mahant v. Tirumala Srirangacharlavaru I.L.R., (1905) Mad. 319, we find the following observations: ""The enactment of

Section 539... was long after the passing of the English 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 High Court and

the District Courts in this country to which the jurisdiction is confirmed possess the same practically unlimited jurisdiction as the Court of Chancery

in matters relating to the administration of public charities, religious or otherwise was taken for granted in Chintaman Bajaji Dev v. Dhondo Ganesh

Dev I.L.R., (1891) Bom., 612 and Annaji v. Narayan I.L.R., (1897) Bom., 556...."" This case went upon appeal to the Privy Council [see Prayag

Doss Ji Varu v. Tirumala Srirangacharla Varu I.L.R., (1907) Mad., 138, and no exception was taken to the above remarks in their Lordships''

judgments. We may take it therefore that Courts in India have the powers possessed by the Court of Chancery and we may apply the principles of

English law in this case. In Attorney-General v. Worcester (Bishop) (1851) 9 Hare, 328, it was held that schemes settled by Court are not altered

except upon substantial grounds and in In re Betton''s Charity (1908) 77 L.J. Ch., 193, it was held that a scheme remains in force only until further

order or the establishment of a new scheme. Provisions in schemes may also be varied such as the number of Governors [Be Browne''s Hospital v.

Stamford (1889) 60 L.T., 288 and in In re Sekeford''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 a 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 shall be precluded from seeking 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 claims of the public and a charitable scheme settled by Court must be considered to have been settled for the

benefit of the public. We must hold therefore that the plaintiff cannot maintain the present suit against the trustees appointed under the scheme. 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 by 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 Original Suit No. 10 of 1903 and would in allowance of the Appeal dismiss this

suit with costs throughout.