# SUPRE'>fE COURT REPORTS [1961] RAJE ANANDRAO v. SHAMRAO AND OTHERS

- **Citation:** [1961] 3 S.C.R. 930
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** P. B. Gajendragadkar, !(. N. W Anchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supre-fe-court-reports-1961-raje-anandrao-v-shamrao-and-others-1948
- **Pages:** 18

## Headnote

Rtligious Endowmeni-Suit under s. 92, C.P.C.-Scheme providing for modification in future-Modifications, if can be made by
application or separate suit-Code of Civil Procedure, 1908 (V of
I908). s. 92.
The appellant was the trustee of a temple, which was an
endowment for the public by his ancestors, and the respondents
were its Pujaris with hereditary rights. Dissatisfaction with the
management of the temple having arisen a suit under s. 92 of the
Code of Civil Procedure was filed in which it was finallv decided
that the office of the Pujaris was hereditary and they were subject
to the control of the appellant. Some of the Pujaris were not
parties to the suit but they were bound by the scheme framed
therein as members of the worshipping public. Subsequently
again trouble arose and on the report of a commissioner appointed
to investigate the working of the temple, the District Judge
passed an order by which he revised the scheme which was then
in force. The Pujaris went to the High Court .in revision which
was allowed. On appeal by special leave the main question arising for decision was how far it was open to the Court to amend a
scheme once framed under s. 92 of the Code of Civil Procedure
where a power to amend the scheme is reserved in the Scheme
itself.
Held, that in a suit under s. 92 for the settlement of a scheme
it was open to provide in the scheme for modifying it whenever
necessary by inserting a clause to the effect.
A suit for the settlement of a scheme is analogous to an
administration suit and so long as the modification in the scheme
is for the purpose of administration, such modification can be
made by an application under the relevant clause of the scheme
without the necessity of a separate suit under s. 92 of the Code of
Civil Procedure the provisions of which are not violated by such
a procedure.
Chandraprasad Ramprasad v. ]inabharthi Narayanabharthi
(1931) I.LR. 55 Born. 414, Sri Swami Rangacharya v. Gangaram
(1936) I.L.R. 58 All. 538, Umeshananda Dutta ]ha v. Sir Ravaneswar Prasad Singh (1912) r7 C.W.N. 84r, Manadananda ]ha v.
Tarakananda ]ha Panda A.LR. 1924 Cal. 330, Srijib Nyayatirtha v.
Sreemant Dandy Swami J agannath Ashram A.LR. 1941 Cal. 618,
Mahomed Waheb Hussain v. Syed Abbas Hussain A.LR. 1923 Pat.
420 and Gangaram Go1•i11d Pashankar v. Sardar K. R. Vinchurkar
I.LR. (1947] Born. 466, approved.
Prayaga Doss Jee Varu v. Tirumala Anandam Pillai Purisa
Sriranga Charylu Vam (r907) L.R. 34 I.A. 78
anrt Sevak
..
3 ~.C.R.
SUPRE~IE COlJltT REPOHTS
931
Kirpashanker Daje v. Gopal Rao Manohar Tambekar (1913) 24 M.L.J.
199, referred to.
Veeraraghavachariar v. The Advocate-General of Madras [19281
I.L.R. 51 Mad. 31, disapproved.
A suit under s. 92 is a representative suit and binds not only
the parties to the suit but all those who are interested in the
trust. The mere fact that the Pujaris were not parties to the
suit would not take away the jurisdiction of the District Judge to
modify the scheme, if the modification was with respect to the
administration of the trust and if it did not affect the private
rights of the Pujaris.
Crvm APPELLATE
.JURISDICTION:
Civil Appeal
No. 370 of 1956.
Appeal by special leave from the judgment and
order dated November 25, 1955, of the former Nagpur
High Court, in Civil Revision No. 333 of 1954.
A. V. Viswanatha Sastri, Shankar Anand and Ganpat
Rai, for the appellant.
W. S. Barlingay and A. G. Ratnaparkhi, for the
respondents.
1961. February 23. The Judgment of the Court was
delivered by
Raje Anandrao
v.
Shamrao
WANCHOO, J.-This is an appeal by special leave
Wanchoo J.
against the judgment of the Nagpur High Court. The
brief facts necessary for present purposes are these :
There is an ancient temple of Balaji at Deolgaon Raja
in the Buldana District.. Before 1866 the management
of the temple was in the hands of a family bearing the
name of 1 ad.
A suit was filed in 1866 with respect to
this temple by Raje Mansingh Rao under the guardianship of his mother for a declaration that

## Text

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1961
930
SUPRE'>fE COURT REPORTS
[1961]
RAJE ANANDRAO
v.
SHAMRAO AND OTHERS.
(P. B. GAJENDRAGADKAR and "!(. N. W ANCHOO, JJ.)
Rtligious Endowmeni-Suit under s. 92, C.P.C.-Scheme providing for modification in future-Modifications, if can be made by
application or separate suit-Code of Civil Procedure, 1908 (V of
I908). s. 92.
The appellant was the trustee of a temple, which was an
endowment for the public by his ancestors, and the respondents
were its Pujaris with hereditary rights. Dissatisfaction with the
management of the temple having arisen a suit under s. 92 of the
Code of Civil Procedure was filed in which it was finallv decided
that the office of the Pujaris was hereditary and they were subject
to the control of the appellant. Some of the Pujaris were not
parties to the suit but they were bound by the scheme framed
therein as members of the worshipping public. Subsequently
again trouble arose and on the report of a commissioner appointed
to investigate the working of the temple, the District Judge
passed an order by which he revised the scheme which was then
in force. The Pujaris went to the High Court .in revision which
was allowed. On appeal by special leave the main question arising for decision was how far it was open to the Court to amend a
scheme once framed under s. 92 of the Code of Civil Procedure
where a power to amend the scheme is reserved in the Scheme
itself.
Held, that in a suit under s. 92 for the settlement of a scheme
it was open to provide in the scheme for modifying it whenever
necessary by inserting a clause to the effect.
A suit for the settlement of a scheme is analogous to an
administration suit and so long as the modification in the scheme
is for the purpose of administration, such modification can be
made by an application under the relevant clause of the scheme
without the necessity of a separate suit under s. 92 of the Code of
Civil Procedure the provisions of which are not violated by such
a procedure.
Chandraprasad Ramprasad v. ]inabharthi Narayanabharthi
(1931) I.LR. 55 Born. 414, Sri Swami Rangacharya v. Gangaram
(1936) I.L.R. 58 All. 538, Umeshananda Dutta ]ha v. Sir Ravaneswar Prasad Singh (1912) r7 C.W.N. 84r, Manadananda ]ha v.
Tarakananda ]ha Panda A.LR. 1924 Cal. 330, Srijib Nyayatirtha v.
Sreemant Dandy Swami J agannath Ashram A.LR. 1941 Cal. 618,
Mahomed Waheb Hussain v. Syed Abbas Hussain A.LR. 1923 Pat.
420 and Gangaram Go1•i11d Pashankar v. Sardar K. R. Vinchurkar
I.LR. (1947] Born. 466, approved.
Prayaga Doss Jee Varu v. Tirumala Anandam Pillai Purisa
Sriranga Charylu Vam (r907) L.R. 34 I.A. 78
anrt Sevak
..
3 ~.C.R.
SUPRE~IE COlJltT REPOHTS
931
Kirpashanker Daje v. Gopal Rao Manohar Tambekar (1913) 24 M.L.J.
199, referred to.
Veeraraghavachariar v. The Advocate-General of Madras [19281
I.L.R. 51 Mad. 31, disapproved.
A suit under s. 92 is a representative suit and binds not only
the parties to the suit but all those who are interested in the
trust. The mere fact that the Pujaris were not parties to the
suit would not take away the jurisdiction of the District Judge to
modify the scheme, if the modification was with respect to the
administration of the trust and if it did not affect the private
rights of the Pujaris.
Crvm APPELLATE
.JURISDICTION:
Civil Appeal
No. 370 of 1956.
Appeal by special leave from the judgment and
order dated November 25, 1955, of the former Nagpur
High Court, in Civil Revision No. 333 of 1954.
A. V. Viswanatha Sastri, Shankar Anand and Ganpat
Rai, for the appellant.
W. S. Barlingay and A. G. Ratnaparkhi, for the
respondents.
1961. February 23. The Judgment of the Court was
delivered by
Raje Anandrao
v.
Shamrao
WANCHOO, J.-This is an appeal by special leave
Wanchoo J.
against the judgment of the Nagpur High Court. The
brief facts necessary for present purposes are these :
There is an ancient temple of Balaji at Deolgaon Raja
in the Buldana District.. Before 1866 the management
of the temple was in the hands of a family bearing the
name of 1 ad.
A suit was filed in 1866 with respect to
this temple by Raje Mansingh Rao under the guardianship of his mother for a declaration that the temple
was his property. The defendants in that suit were
certain pujaris. The suit was decreed by the first
court but on appeal it was held that the temple was
not the private property of the Raja but was an endowment for the public founded by the ancestors of the
Raja and that the Raja was entitled as against the
puja.ris to the possession and control of the institution.
A receiver was appointed during the minority of the
Raja. but in due course the Raja. took over the direct
management of the temple. In 1872 it seems that there
was some dispute between the Raja and the pujaris
whose offices were also hereditary ; and an agreement
119
Raj8 Anandrao
v.
Shamrao
fV anchoo J.
932
SUPREME COURT REPORTS
[1961)
was arrived at between them. By this agreement it
was provided that any offerings up to Rs. 5/- would go
to the pujaris who were to defray the expenses of
dhoop, deep and neivedya from this amount keeping the
balance to themselv.es. There were also certain provisions in the agreement as to offerings in kind. The
agreement also provided for other matters relating to
worship and imposed certain duties on the pujarls.
Finally, it provided that the parties should carry on
all the duties stated in the agreement and other duties
besides them as before according to the usual wahiwat
and that earnings would be taken as stated in the
agreement and proper arrangement of expenses would
be kept and the pujaris woul<l take all possible care
not to take more than what was fixed in the agreement. This agreement seems to have held the field.
thereafter till we come to 1904.
It seems that there was- dissatisfaction with the
management.of this temple by Raje Anandrao and in
consequence a suit was filed after obtaining permission
of the Advocate-General in February, 1904, for framing a scheme for the management of the temple. This
suit was finally decided on April 29, 1916, by the
Additional Judicial Commissioners. They set aside
the order of the trial court. for the removal of l:taje .
Ana.ndrao from the management by declaring that the
right to manage the affairs of the shrin~ which was
an office waEI hereditary in the family of the Raja ;
hut they further held that a scheme should be framed
providing-
"(i) for the management of the trust pending any
dispute as to who is the present holder of the office
of trustee and manager ;
(ii) for the management of the trust during the
minority of the appellant if he should be established
to be the present Raja.;
(iii) for the continua.nee of co9trol by the Court
after the present hereditary incumbent enters upon
the office of manager sui juris ; and
(iv) for the modification of the scheme from time
to time as circumstances may demand. "
In consequence the matter went ha.ck to the District
Judge who framed a scheme on February 16, 1918, for
•
3 S.C.l{.
SUPREME COURT REPORTS
933
the management of the temple. This scheme was later
substituted by ,another scheme dated November 25,
1926. Finally, on October 16, 1935, another scheme
was framed in substitution of that framed in 1926. It
may be mentioned that the pujaris as such were not
parties to this suit in which the scheme was framed,
though they would be as much bound by it as mem':.
hers of the worshipping public as .the parties to it. It
seems that a.bout. that time there. was another suit
pending in the court of the Additional Subordinate
Judge, II Class, Buldana, between the appellant and
the pujaris. That suit was decided on April 30, 1936,
and it was held therein that the agreement of 1872
which was binding on the appellant recognised that
the olfice of pujari was hereditary. It was also held
that the trustee (namely, the Raja) was entitled to
control the pujaris in the exercise of their rights and
to see that they performed their duties properly. In
other words it was held that the pujaris were entitled
to retain their office during good behaviour. It was
also he1d that the hereditary riature of their right had
not invested them with any immunity from all control
and they were not entitled to act with impunity and
yet retain their office. It was further held that they
could not establish a right to enjoy the fruits of their
office though absolutely incompetent to do so. Further
it was held that the power of dismissal in the event of
misbehaviour undoubtedly belonged to the Raja but
that it should not be lightly exercised and should be
subject to the control of the District Judge. Finally
it was made clear that the Raja had no right to dispose
of any part of the income of the pujaris nor had he
any right to interfere in matters of succession amongst
them. The office of pujari was thus held to be hereditable unless there was misconduct or misbehaviour
which caused forfeiture. A declaratory decree was
therefore passed to the effect that the pujaris who were
defendants in that suit were holding hereditary office
of the pujaris of Shree Balasaheb Sansthan and that
they were in the discharge of their duties subject to
the control of the plaintiff (namely, the Raja.) and they
were bound to respect his authority and rightful
Raje AnandYao
v.
Shanira"
Wanchoo ].
Raje Anandrao
v.
Shanirao
lVancJioo j.
934 ..
SUPREME COURT REPOR'TS
[1961]
orders and that. they held their office subject to good
behaviour.
Next we come to the year 1953. It seems that there
was some trouble in the temple and consequently the
District Judge visited the place on November 30,
1953.
At that time it was agreed ·that a Commissioner with wide terms of reference be appointed to
investigate the working of the temple vis-a-vis the
pujaris, the trustee and the general public and he
should report how far the present scheme was working,
what were the defects and shortcomings and what new
proposals or alterations in the scheme and in the
agreement of 1872 were necessary in the light of the
working till then and the changed circumstances.
Many of the pujaris-respondents who were present on
that date were agreeable to this course. Eventually,
the Commissioner reported to the District Judge and
objections were called to that report. The matter was
then gone into and the District J u<lge passed an order
on April 12, 1954, by which he revised the scheme
which had been in force since 1935.
Thereupon the pujaris went in revision to the High
Court and their contention was that the District
Judge had acted beyond his jurisdiction in revising the
scheme in so far as it affected them. The High Court
went into the question whether the District Judge
had any power to modify the scheme and came to the
conclusion that if the matters sought to be introduc.
ed by modification of the scheme are covered by
s. 92 of the Code of Civil Procedure, an applicatfon
for modification is not the appropriate remedy. It
further held that unless the power reserved to the
court under the scheme is invoked for a purpose
analogous to execution of the decree, no modification
of the scheme was possible under s. 92. It therefore
held that unless the rights of any persons were the
subject of lis, the scheme could not be modified so as
to affect them except by a suit under s. 92. Fina.Uy,
it ca.me to the conclusion that as the puja.ris were not
parties to the suit of 1904 or to,the scheme that was
framed, it was not possible to modify the scheme so
as to affect their rights without recourse to s. 92. The
'
.•
3 S.C.R. SUPREME COURT REPORTS
935
revision was therefore allowed and the scheme framed
by the learned District Judge was ordered to be read
subject to the order of the High Court.
Thereafter an application was made by the appellant to appeal to this Court, which was later converted
into an application for review of the earlier order.
This application was rejected. Then the appellant
applied to this Court for special leave and obtained
the same ; and that is how the matter has come up
before us.
The main question that arises in this appeal is how
far it is open to a court to amend a scheme once
framed under s. 92 of the Code of Civil Procedure,
where a power to amend the scheme is reserved in the
scheme itself. It is not seriously disputed in this case
that the power to amend the scheme has been reserved
in view of the judgment of the Additional Judicial
Commis~ioners already set out above and paragraph 17
of the scheme dated October 16, 1935. The High
Court has held that as the pujaris were not parties to
the suit under s. 92, the scheme could not be amended
so as to affect their rights, for even where a power is
reserved in the scheme to modify it, it could only be
invoked for a purpose analogous to execution of a
decree. It is the correctness of this view which has
been challenged before us.
The leading case in support of the view taken by
the High Court is Veeraraghavachariar v. The AdvocateGeneral of Madras (1). It was held in that case that-
" if in a decree for a scheme framed under s. 92,
Civil Procedure Code, liberty is given to persons to
apply to the Court for directions morely to carry
out the scheme already settled, such reservation of
liberty in the decree will be intra vires if the assistance of the Court can he given without offending
s. 92; but where liberty is given to apply to the
Court for alteration or modification of the scheme,
such reservation is ultra vires as offending s. 92."
On the other hand the 1'3ading case ta.king the
opposite view is Ohandrapmsad Ramprasad v. Jinahharathi Narayana bharathi('). In that case the scheme
(t) (1928)1.L.R. ;1 Mad,31.
(z) (1931) l.I •• R. ;; Bom. 414
Raje AnandY•O
v.
lV anclroo J;
Raje Anandrao
v.
Sl&a,nrao
Wanekoo ].
936
SUPREME COURT REPORTS
[1961)
authorised the District Court to remove a trustee and
also to alter or amend the scheme upon an application of a party interested or on its own initiative after
giving public notice. An application was made to the
District Court for the removal of certain trustees and
for the modification of the scheme. The District Judge
dismissed the application on the ground that the
proper remedy of the applicant was by a separate
suit under s. 92 of the Code of Civil Procedure. On
appeal, however, the High Court held that the Distnct
Court was competent to grant the reliefs asked by
virtue of the powers conferred upon it under the rules
of the scheme and that no separate suit under s. 92
of the Code of Civil Procedure was necessary. Fur- ·
tber it held that the rule which gave power to the
court which sanctioned the scheme to alter or modify
it was not ultra vires.
The view taken by the Bombay High Court as to
the power to modify the scheme by application if such
power is reserved in the scheme has been followed by
the Allahabad High Court in Sri Swami Rangacharya
v. Gangaram ('). The Calcutta High Court has also
accepted the view that where there is a provision in
a scheme for its modification it can be modified by
an application; (see UtnMhananda Dutta Jha v. Sir
Ravaneswar Prasad Singh (2 )
Manadananda Jha v.
Tarakananda Jha Panda(') and Srijib Nyayatirtha v ..
Breeman! Dandy Swami Jagannath Ashram(')). The
Patna High Court also in Mahomed Waheb Hussain v.
Syed Abbas Hussain(') held the same view. In Gangaram Govind Pashankar v. Sardar K. R. Vinchurkar (6),
the Bombay High Court bas gone further 'and held
that the court had inherent power under s. 151 of the
Code of Civil Procedure to alter a scheme even in the
absence of a clause giving " liberty to apply " if
circumstances have subsequently arisen which make
it desirable for it to be altered to meet the ends of
justice.
Reference was also ma.de ttf two decisions of the
Privy Council. In Prayaga D0&s Jee Varu v. Tirumala
{I) (1936) l.L.R. 58 All. 538.
(2) (1912) 17 C.W N. 841.
(3) A.J.R. 1924 Cal. 330.
(4) A.!.R. 1941 Cal. 618,
(51 A.l.R. r923 Pat. 420.
(6) J.L.R. [1947) Bom. 466.
.,
3S.C.R.
SUPREME COURT REPORTS
937
Anandam Pillai Purisa Sriranga Oharylu Varu (1), the
Privy Council itself framed a scheme and one of the
terms in the scheme was that liberty was reserved to
persons interested from time to time to apply to the
High Court for any modification of the scheme that
may appear to be necessary or convenient. Similarly,
in Sevak Kirpashanker Daji v. Gopal Rao Manohar
Tambekar ('), the scht>me which was framed by the
Privy Council in that case contained in cl. 20 a direction that the provisions of the scheme might be
altered, modified or added to by an application to His·
Majesty's High Court of Judicature at Bombay. It
is true that in these cases, the Privy Council was not
considering whether such a clause could be legally
inserted in a scheme; but the fact remains that in
these two schemes the Privy Council did insert a clause
in each authorising its modification by an application
to the High Court.
Apart from authorities, however, let us see if there
is anything in ~. 92 of the Code of Civil Procedure
which militates against providing a clau8e in a scheme
framed thereunder for its modification by an application to the court framing the scheme. Section 92
permits a suit in the case of any alleged breach of
any express or constructive trust created for public
purposes of a charitable or religious nature or where
the direction of the court is deemed necessary for the
administration of any such trust to be filed either by
the Advocate-General or two or more persons having
an interest in. the trust with the consent in writing of
the Advocate-General. Reliefs that can be obtained
under that section are-
" (a) removing any trustee;
(b) appointing a new trustee ;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be trustee,· to
deliver possession of ·any trust property in his
possession to the person entitled to the 'possession
of such property ;
(d) directing accounts and inquiries;
(>) (•907) L.R 3~ I.A. 78
(•) (t9l3] 2~ M.L.J 199.
Raje Anandrao
v.
Shamrao
U' anclioo J.
Raje Antoidrao
v.
Shamrao
H-" anrhoo j.
938
SUPREME COURT REPORTS
[1961]
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to
any particular object of the trust;
(f) authorizing the whole or ttny part of
the trust property to be let, sold, mortgaged or
exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the
nature of the case may require."
Further sub-s. (2) of s. 92 bars a suit claiming the above
reliefs unless the suit is filed in conformity with
s. 92(1). In the present appeal we are concerned only
with the modification of a scheme; we are not concerned with appointment or removal of trustees or
any other matter enumerated in sub.s. (1) of s. 92:
We do not therefore propose to consider whether it
would be open to appoint or remo,·e trustees etc.,
on the ground of breach of trust without recourse to a
suit under s. 92.
We shall confine ourselves only to
the question whether in a case where there is a provision in the scheme for its modification by an application to the court, it is open to the court to make
modifications therein without the necessity of a suit
under s. 92. So far as the scheme is concerned, s. 92 (1)
provides for settling a scheme and if a suit is brought
for this purpose it has to comply wit.h the requirements
of s. 92(1); but where such a suit has been brought and
a scheme has been settled, we see nothing in s. 92 (2}
which would make it illegal for the court to provide a
clause in the scheme itself for its future modification.
All that that sub-section provides is that no suit claiming any of the reliefs specified in sub-s. (1) shall be
instituted in respect of a trust as is therein referred to
except in conformity with the provisions of that sub.
section. This sub-section therefore does not bar an
application for modification of a scheme in accordance
with the provisions thereof, provided such a provision
can be made in the scheme itself. Under sub-s. (1} the
court has the power to settle a scheme. That power
to our mind appears to be comprehensive enough to
permit the inclusion of a provision in the scheme itself
which won!rl make it alterable by the court if and
o I
•
·-
•I
/
' . 38.C.R.
SUPREME COURT REPORTS
939
when found necessary in future to do so. A suit under
s. 92 certainly comes to an end when a depree is passed
therein, including the settlement of a scheme for the
administration of the trust. But there is nothing in
the fact that the court can settle a scheme under
s. 92(1) to prevent it from making the scheme elastic
and provide for its modification in the scheme itself.
That does not affect the finality of the decree; all that
it provides is that where necessity arises a change
may be made in the manner of administration by the
modification of the scheme.
We cannot agree that if
the scheme is amended in pursuance of such a clause
in the scheme it will amount to amending the decree.
The decree stands as it was, and all that happens is
that a part of the decree which provides for, management under the scheme is being given effect to. It
seems to us both appropriate and convenient that a
scheme should contain a provision for its modification,
as that would provide a speedier remedy for modification of the manner of administration when circumstances arise calling for such modification than through
the cumbrous procedure of a suit.
In Veeraraghavachariar' s case (1 ), the Madras High
Con.rt was cognizan.t of the two decisions of the Privy
Council in wofiich "clauses had been inserted in the
scheme providing for its modification by an application. But the learne"cl. judges were of the view that the
point was never raised much less decided by the
Privy Council and therefore it could not be said that
the Privy Council was of the opinion that such a clause
would be intra vires. They thought that inserting such
a clause in the scheme would imply that the suit would
remain pending for ever. It is not necessary to hold
that a suit under s. 92 in which a scheme is framed
providing such a clause is pending for ever. The scheme
deals with the administrati<,m of the trust and for the
purposes of the scheme it would not be wrong or improper to treat a suit under s. 92 as analogous to an
administration suit.
On that view it would in our
opinion be just and convenient to provide for a clause
in the scheme which is framed for the administr&t·ion
I•) (1928) !.L.R. 51 !4ad. 3r.
Ig6I
Raje Anandr ao
v.
S'hamrao
1-Vanchoo ],
'
Raje Anandrao
v.
Shamrao
JVanchoo ].
940
SUPREME COURT REPORT3
[1961)
of the trust to allow for its modification by an application. We therefore accept the view of the Bombay,
Calcutta, Allahabad and Patna High Courts in this
matter and hold that it is open in a suit under ~- 92
where a scheme is to be settled to provide in the scheme
for modifying it as and when necessity arises, by inserting a clause to that ~ffect. Such a suit for l he settlement of a scheme is analogous t_o an administration
suit and so long as the modification in the scheme is
for the purposes of administration, such modification
can be made by applica.tion under the relevant clause
of the scheme, without the necessity of a suit under
s. 92 of the Code of Ci vii Procfdure. Such a procedure
does not violate any provision of s. , 92. The view
taken by the Madras High Court that insertion of such
a clause for the modification of the scheme is ultra
vire8 is incorrect. It was therefore open to the District
Judge in the present case to modify the scheme.
The next question is whether the modification in this
case is for the purposes of administration alone for
then it will be justified and within jurisdiction or whethe1' by this modification the private ~ights of the
pujaris are in any way affected. It is true that the
pujaris were not parties to the suit under s. 92 but the
decision in that suit binds the pujaris as worshippers so
far as the administration of the temple is concerned,
even though they were not parties to it, for a suit
under s. 92 is a representative snit and binds not only
the parties thjereto but all those who are interested in
the trust. Therefore, the mere fact that the pnjaris
were no parties to the suit will not take away the
jurisdiction of the District ,Judge to modify the scheme,
if t.he modification is with respect to the administration of the tnrnt and if it does not affect the private
right's of the puj1uis.
According to the High Court,
the modification in the scheme was only with respect
to three paragraphs, namely, paragraphs 3, 4 and 12.
Lea.med counsel for the pujaris has admitted that
there is no modification in paragraph 4.
This is also
clear from a comparison of paragraph 4 of the 1935
scheme with paragraph 4 of the revised scheme, for
the two paragraphs are word for word the same. Sn
•
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3 S.C.R.
SUPREME COURT REPORTS
941
we are left with the modification in para.graphs 3 and
12. Paragraph 3 originally provided that " the managing trustee shall have authority to regulate the
performance of the pooja according to usage which is
not in any way repugnant to public interest and
morals ", and to this part of paragraph 3, the revised
scheme adds the words " but which encourages the
use of vedic yagnik ''. Learned counsel for the pujaris
admits that there can be nci objection to this addition,
for it only brings out what was implicit in the okl
scheme. Further the following addition is made to
paragraph 3 in the revised scheme:-
,, The rules may provide, inter alia, that the
persons actually doing the worship sl.10uld have the
requ:site knowledge of the mantrik ritual and in case
any one has not such knowledge, the actu~l worship
and ritual may be performed by his substitute
having such knowledge and he may not be allowed
to do the worship himself.
These rules will be
printed and published locally and shall be enforced
by the trustee."
Now the old paragraph 3 also provided for framing of
rules with the approval of the District Judge after
hearing the publie and the pujaris, for the worship of
the deity. The revised paragraph il also contains a
direction regarding the making· of such rules with the
approval of the District Judge after hearing the public
and the pujaris. It has further been provided that
such rules should be printed and published locally and
should be enforced by the trustee. There can in our
opinion be no objection to this addition, for the enforcement of the rules was already implicit in old paragraph 3 and their prin,ting and publication. is only a
matter of convenience to all and can in no way affect
the private rights of the pujaris. Learned counsel for
the respondents did not object to this addition either.
He objects to that part of the addition which says that
"the persons actually doing the worship should have
the requisite knowledge of the mantrik ritual and in
case any one has not such knowledge, the actual
worship and ritual may be performed by his subst.itute
having such knowledge." Now this provision merely
v.
lVamhoo J.
Raje Auandrao
v.
Shantrao
IVanchoo J.
942
SUPREME COURT REPORTS
[1961]
says what the rules for pooja to be approved by the
District Judge after hearing the public and the pujaris
should provide among other things. This provision is
on the face of it reasonable, for it is unthinkable that
a pnjari, even though he may be a hereditary pujari,
should perform puja, when he does not know anything
about the mantrik rituals. Learned counsel for the
respondents has no objection to this provision either
except that he contends that the rule seems to give
the right to provide a substitute to the managing
trustee (namely, the appellant). As we read the ruk,
however, we do not think that that is wh1tt it means.
All that it says is that where the hereditary puj1tri
does not know the mantrik ritual, the puja may be
performed by his substitute. It means that the substitute has to be provided by the pnjari and not by the
managing trustee. The fact that the substitute is
pujari's substitute has implicit in it that it is the
pujari who has to provide a substitute in his place in
case he does not know the rituals. Learned counsel
for the respondent~ concedes that if this is the meaning of the addition in paragraph 3, there can be no
objection to it. We therefore make it clear that when
the addition in paragrnph 3 speaks of a substitute for
the pujari wbo is ignorant of rituals, it is the pnjari
who has the right to provide the substitute and not the
managing trustee. So read, this addition does not in
any way affect the private rights of the pujaris in the
matter of puja. Thus the entire addition in paragraph 3 deals with the administration of the temple
with respect to puja and with the clarification which
we have given above there is no trespass on the private
rights of the pujaris by this addition. Therefore, the
revised paragraph 3 was within the jurisdiction of the
District Judge and cannot be taken exception to on
that score.
Turning now to paragraph 12 we find that .there are
additions in that paragraph in the revised scheme and
we shall deal with each addition seriatim: The first
addition (i.e., cl. a) is that "the Raje Anandra.o shall
have power to keep such dependants like kirtankars,
puraniks, etc., for proper performanC'e of the religious
I
'
f
3 S.C.R.
SUPHEME UOURT Rl<~l'ORTS
943
rites of the deity customarily so performed and to tix
their allowances or remunerations, as the case may
be. " This addition does not in any way affoct the
priv11:te rights of the pujaris; it deals with persons
other than the pujaris who perform other duties
beside the puja, like kirtan, reading of purans, etc.
The managing trustee (namely, the Raja) has been
given the power to appoint such persons and to fix
their allowances or remunerations. Obviously, such
allowances and remuneration will not be paid out of
the income which is secured to the pujaris under the
agreement of 1872 and will have to come ·out of other
income of the temple. If this provision is so readand this is the only way in which it can be read-the
learned counsel for the respondents has no. objel'tion
to this provision either. It relates to the admini,;t ration of the trust and does not, if read in the manner
indicated above, in any way affect the private rights
of the pujaris.
Then comes cl. \b), which is as follows:-
" Raje· Anandrao, and in his absence, the manager
or the agent of Raje Anandrao, will have power to
grant leave to, or fine, or punish the pujaris for
misconduct, as in the case of his office staff and
otlier dependants because the responsibility is on the
trustee to see that the puja is performed regularly
and properly. The dismissal of the pujaris for
misconduct or other reasons shall not be made
without the previous sanction of the District Judge,
West Berar."
This clause again deals with the administration of
the temple. We have already referred to the decision
in the suit of 1935 between the appellant and the
pujaris-respondents. In that suit it was made clear
that the pujaris in the discharge of their duties were
subject to the control of Raje Anandrao and were
bound to respect his authority and rightful orders and
that they held their office subject to good behaviour.
It is this decision inter parties which is being carried
out in cl. (b), which has been added in the revised
scheme. The power of control which the Raja has
over the pujaris in the discharge of t.heir duties
v.
ShamrtSO
lf'a.tif~ ].
Ig61
Raje Anandrao
v.
Sht11nrao
Wattchoo ].
944
8UPRE:ME UOURT HEPORTS
Ll961]
implies that he is the person to grant them leave or
fine or punish them for misconduet, if they do not
perform their duties regularly and properly. LearnPrl
counsel for the respondents feels howevn that this
power to punish might be misusPd by the H aja, for it
is uncontrolled, unlike the power to disrnies which
could only be exercised with the previous siinction of
the District Judge. The clause as it stands therefore
does not in any way affect the private rights of the
pujaris and does not go beyond what was decided i11
the suit between them and the appellant. It concerns
the administration of the temple and therefore it was
within the jurisdiction of the District Judge to insert
it in the scheme when revising it.
At the same time
there may be something in the apprehension entertainNl by the pujaris that the power to punish may
be abused.
We therefore think that in this clause a
further sentence should be added to the following
effect:-
" In case Raje Anandrao or his manager or
agent fines or punishes the pujaris for misconduct,
the pujaris will have the right to appeal to the District Judge against such orders and the order of the
District .Judge thereon will be final. "
Then we come to cl. (c) which is as follows:-
"The pujaris will be entitled to their shares in
the offerings as per the agreement of 1872 after
deduction of the expenses for the pooja, etc., as per
my detailed remarks in my separate order passed
today. The management will work out those instructions for day-to-day working in accordance with
rules to be included in the puja rules."
The main attack of the respondents is on this elause,
for, according to them, it affects their right to offerings
to which t,hey are entitled under the agreement of
1872. This clause is not self-cont»ined, for it refers
to the detailed remarks in the separate order of the
District Judge passed on that very d;iy and leaves it to
the management to work out tho"e instructions for day
to day working in accordance with rules to be included
in the puja rules.
Now under the separate order of
the same date it is provided that offerings up to
.
'
J
!
•
rt
' ..
3 S.C.R.
SUPREME COURT REPORTS
94.5
Rs. 5/- to which the pujaris are entitled subject to the
expenses of dhoop, deep and neivedya according to the
agreement of 1872 should be kept in a separate box
which should be opened once every week, or fortnight
or month or at any stated period as agreed by the
pujar!s, in the presence of some respectable persons
of the town and the signatures of the representatives
of the pujari' and of the trnstees or his representative
should be taken in a separate note-book to show
(,he exact amount found in the box. In case the
pujaris do not agree to some period the box may
be opened once every month. It is further said
that, the expenses of dhoop, deep and neivedya should
he met from this money and such expenses should
b" found out from the pujaris' account. If the
pujaris do not disclose their accounts it W01lld be for
the Raja to settle the amount which is to be spent on
dhoop, deep and neivedya and then require the pujaris
to spend that much amount for the purpose. This
amount should be paid to the pujaris on their showing
what they had spent on dhoop, deep and neivedya; but
if the pujaris fail to spend anything, the trustee snould
see that the expenses are properly incurred and debited to the pujaris in their khata and the balance of this
khat,a should be divided among the pujaris.
The respondents are afraid that these directions
would mean that the management will take away the
money found in the box wh1>never it is opened and the
pujaris would thus be at the mercy of the management
for meeting the expenses of dhoop, deep and neivedya
am! also for the balance to which they are entitled for
their upkeep.
Up to now this amnunt of offerings up
to Rs. 5/- was going direct to the pujaris and they were
incurring expenses on dhoop, deep and neivedya out of
it. The appellant contends that under the Madhya
Pradesh Public Trusts Act, No. XXX of 1951, he has
to maintain proper accounts under s. 15, to prepare a
budget under s. 18 and to have the accounts audited
under s. 16. Therefore it is necessary that he should
show the amount received in offerings up to Rs. 5/- in
his budget and should also show how much of it goes
to the pujaris for their personal use and how urnch of
Raje Anandrao
v,
Shanirao
Wanchoo ].
1961
Raj"e Anandrao
v.
Shomrao
Wanchoo ].
946
SUPR J<:)lE COURT REPORTS
(1961]
it is spent on dlwop, deep and nefredya. There is no
doubt that in order that puja in the temple in the
shape of dhoop, deep and neivedya is performed
properly, it is necessary to have cherk in this income
from offeringd up to Rs. 5/. from which this expenditure is incurred, leaving the balance for the personal
use of the pujari~. Even so it seems to us necessary
that the interests of the pujaris arc also safeguarded
and thev should not be left entirely at the mercy of
the appellant, who may take away' the entire m(~ney
found in the box and may not pay them for long
periods to what they are entitled as the balance.
Though . therefore the District Judge was right in
making the arrangement for putting the offerings up
to Rs. 5/- in a separate box so that they may be
accounted for, we think some more provisions are
necessary in order that cl. (c) may not affect adversely
the private rights of the pujaris to the balance of
these offerings after incurring the expenses on dhoop,
deep and neivedya. It is also essential that some safeguard should be provided for the pujaris so that the
amount put in the box is not surreptit.iously taken
away. Though therefore t.he main provision in cl. (c)
dealing as it does with the administration of the trust
is not objectionable, it is necessary that it should be
made self-contained and should a!So contain safeirnards
for the pujaris. We therefore direct the District Judge
to amend cl. (c) of paragraph 12 in order to bring into
it the provisions contained in his detailed order. We
also direct that the District Judge should provide for
the protection of the interests of the pujaris by including the following in cl. (c) :-
(1) The box in which these offerings up to Rs. 5/-
are put should be double locked-one lock to be put
by the appellant and the other on behalf of the
pujaris.
(2) It should be opened in the presence of a representative of the management and a representative
of the pujaris who ;;hall be chosen by the pujaris in
such manner aH they think fit and two respectablf'
persons of th<' town.
>
'
3 S.C.R.
SUPREME COURT REPORTS
947
(3) The box may be op~ned once in a month or
oftener as desired by the pujaris but not more than
once in a week.
(4) The amount found in the box may be noted
by the management; the whole of it should be
handed over to the chosen representative of the
pujaris on behalf of all the pujaris in case the ex.
penditure for dhoop, deep and neivedya for the period
prior to the opening has been met by the pujaris.
In case however sucli expenditure has been met by
the management, the balance after deducting such
expenses, shall be immediately paid to the chosen
representative of the pujaris on behalf of them all.
The last provision has been made to make it clear
that the management will not t:tke away the money
but immediately give it to the representative of the
pujaris for distribution among them. The provisions
of the Public Trusts Act will be satisfied. in that the
management will be in a position to know how much
has gone to the pujaris including the amount spent
on dhoop, deep and neivedya.
This provision will also
take away any objection about there being interference
with the private rights of the pujaris under the agree.
ment of 1872.
We therefore allow the appeal, set aside the order
of the High Court and restore the revised scheme
subject to the modifications suggested by us above.
The Districi Judge will see that these modifications
are embodied in the revised scheme.
In the circumstances of the case we order parties to bear their own
costs.
Appeal allowed.
JIBON CHANDRA SARMA DOLOI
v.
AN ANDI RAM KALITA AND OTHERS.
(P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)
Brahmollar land-If alienable-Burden of proof-Assam Land
and Revenue Regulation, I886 (Reg. I of z886), ss.