Case: Raje Anandrao Vs. Shamrao And Others

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 Lad. 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 pujaris 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 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 themselves. 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 pujaris. 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 would take all possible care not to take more than what was fixed in the agreement. This agreement seems to have held the filed thereafter till we come to 1904.2. 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 Raje Anandrao from the management by declaring that the right to mange the affairs of the shrine which was an office was hereditary in the family of the Raja; but they further held that a scheme should be framedfor 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 continuance of control 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 mayconsequence the matter went back to the District Judge who framed a scheme on February 16, 1918, for 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 no parties to this suit in which the scheme was framed, though they would be as much bound by it as members of the worshipping public as the parties to it. It seems that about 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 there in that the agreement of 1872 which was binding on the appellant recognised that the office 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 held that the hereditary nature of their right has 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 order and that they held their office subject to good behaviour.3. 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 pujari, 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 Judge passed an order on April 12, 1954, by which he revised the scheme which had been in force since 1935.4. 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 introduced by modification of the scheme are covered by S. 92 of theCode of Civil Procedure, an application 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. Finally, it came to the conclusion that as the pujaris 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 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.5. 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.

Reasoning:
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 Commissioners already set out above and paragraph 17 of the scheme dated October 16,shall confine ourselves only to the question whether in a case where there is 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.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 would make it alterable by the Court if and when found necessary in future to do so. A suit under S. 92 certainly comes to an end when a decree 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 athat view it would in our opinion be just and convenient to provide for a clause in the scheme which is framed for the administration 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 S. 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 effect. Such 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 purposes of administration, such modification can be made by application under the relevant clause of the scheme, without the necessity of a suit under S. 92 of theCode of Civil Procedure. 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 vires is incorrect. It was therefore open to the District Judge in the present case to modify theis 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 suit and binds not only the parties thereto but all those who are interested in the trust. Therefore, the mere fact that the pujaris were no parties to the suit will not take away the jurisdiction of the District Judge to modify the scheme, if the modification is with respect to the administration of the trust and if it does not affect the private rights of the pujaris. According to the High Court, the modification in the scheme was only with respect to three paragraphs, namely, paragraphs, 3, 4 andrevised paragraph 3 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 printing and publication is only a matter of convenience to all and can in no way affect the private rights of thethis provision merely 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 pujari, 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 rule, however, we do not think that that is what is means. All that it says is that where the hereditary pujari 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 pujari and not by the managing trustee. The fact that the substitute is pujaris 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 thetherefore make it clear that when the addition in paragraph 3 speaks of a substitute for the pujari who is ignorant of rituals, it is the pujari 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.13. 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 Anandrao shall have power to keep such dependants like kirtankars, puraniks, etc., for proper performance of the religious rites of the deity customarily so performed and to fix their allowances or remunerations, as the case may be." This addition does not in any way affect the private 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 remuneration. 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 read-and this is the only way in which it can be read-the learned counsel for the respondents has no objection to this provisionclause as it stands therefore does not in any way affect the private rights of the pujaris and does not go beyond what was decided in 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 entertained 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 effectcase 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 there on will beis 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 check in this income from offerings upto Rs. 5/- from which this expenditure is incurred leaving the balance for the personal use of the pujaris. Even so it seems to us necessary that the interests of the pujaris are also safeguarded and they should not be left entirely at the mercy of the appellant, who may take away the entire money 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 surreptitiously taken away. Though therefore the 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 also contain safeguards for the pujaris.