1. The second. defendant is the appellant before ns. the suit was brought with the Advocate-General's sanction under Section 92 of the Civil Procedure Code for the framing of a scheme for the conduct of certain charities, for the appointment of a new trustee or new trustees (the office of trustee have become vacant according to the allegations in the plaint) and for other appropriate reliefs.
2. A preliminary objection was taken for the respondents that no appeal lay; because to determination of any question between the parties has been arrived at by the lower, Court, and their learned Vakil relied upon the decision in Aiyappa Mudaliar v. Gopalaswami Mudaliar 16 Ind. Cas. 45 . But in that ease no decree was at all drawn up embodying any determination of the Court, whereas in the present case a formal decree has been drawn up determining that there is a vacancy in the office of trustee and that the plaintiffs are entitled to a declaration that the trusteeship is not vested in the second defendant and that there is a vacancy which enabled the Court to frame a scheme. We, therefore, think that there is nothing in the preliminary objection put forward on behalf of the respondents.
3. Coming to the appeal, two technical objections to the maintainability of the suit were argued. One was, that the Advocate General's sanction did not cover the resection of the suit as against the second defendant, because be was added as a party some time after the suit was filed. - Reliance is placed on Abdul Rahman v. Castum Ebrahim 11 Ind. Cas. 726 and on an English decision on which Abdul Rahman v. Cassum Ebrahim 11 Ind. Cas. 726 was supported by the learned Judges who decided it. We think that the test to be applied to the solution of the question whether the addition of a party requires a fresh sanction from, the Advocate General before the suit against him could be proceeded with, is whether the scope of the suit has been really enlarged by the addition of the new party. Following the decision in Vaithilngam v. Ramalingam Pillai 38 Ind. Cas. 133 and Mulukutla Ramamurthi v. Chillara Bhaskarayya 50 Ind. Cas. 58 we hold, having regard to the pleading and the character of this suit, that the addition of the second defendant has not enlarged the scope of the suit. We, therefore, overrule this contention.
4. The next contention is bated upon the decision of the Full Bench of this Court in the case resorted in Ramachgndra Iyer v. Parameswaran Munhu 50 Ind. Cas. 693 . That any objection could be successfully baaed on the strength of Ramachandra Iyer v. Parameswaran. Munhu 50 Ind. Cas. 693 : 9 L.W. 492 seems not to have been present to the mind of any of the parties (either the plaintiffs or the defendants) till after the written statement was filed and till about the time of the framing of the issues which was done on the 20th February 1918. The plaintiffs did not, therefore, mention in the plaint that they had such an interest in the charitable trust as, according to the Fall Bench decision, would entitle them to bring a suit of this character with the consent of the Advocate-General. The defendants also did not contend in (heir written statement that the plaintiffs did not possess such an interest. However, as issues have to be framed not only on the pleadings but on the contentions put forward by the parties and their Pleaders at the time of issues, the Court ought to have considered the allegations then made by the Pleaders of the defendants and settled the issues with reference to those allegations also. It is desirable that such allegation's relating to the existence or non-existence of the interest required by law in the plaintiffs to enable them to maintain this suit should be in the form of affidavits or verified statements and as it is now alleged on behalf of the plaintiffs that they have got such an interest, we direct the plaintiffs to amend the plaint by adding allegations clearly setting out in detail the interest which entitles them to maintain the suit as plaintiffs. On such amendment being made, the lower Court should give time to the defendants to file written statements with respect to those allegations, and an issue or issues should be framed and decided as regards that question. Acting under Order XLI, Rule 25, we direct the lower Court to frame the necessary issues (after allowing the parties to put forward the additional pleadings) already mentioned, to try the issues and to return its findings on the issues and the reasons for the findings within four months from the receipt of the records. The suit is remitted to the lower Court for this purpose. The plaintiffs will be allowed to amend the plaint within three weeks of the receipt of records by the lower Court, Seven days will be allowed for objections to the finding.
5. In pursuance of the order contained in the above judgment the Subordinate Judge of Negapatam submitted the following
FINDING:-- 1. The suit has been remanded by the High Court to enable the plaintiffs to amend the plaint setting out the nature of the interest which they possessed in the plaint institution in the light of the decision in Ramachandra Iyer v. Parameswaran Munbu 50 Ind. Cas. 693 with liberty to the defendants to file written statements with respect to those allegations and directing this Court to frame the necessary issue and to return a finding thereon after taking fresh evidence tendered by the parties. The plaint has been amended and written statement filed and the following additional issue framed:
Whether the plaintiffs have a legal interest to maintain this suit?
2. In the Full Bench case Ramachandra Iyer v. Parameswaran Munbu 50 Ind. Cas. 693 : 25 M.L.T. 301 it is pointed out that Section 539 of the Code of 1877, which corresponds to Section 92 of the present Code was based on Romilly's Act, that under the said Act it has been held in one case that the person entitled to sue must possess 'a direct interest' and in another base that he must have 'a clear interest', that the expression 'dieter interest' employed in the said section was construed too strictly by certain of the Indian High Courts with the result that in Jan Ali v. Ram Nath Mundul 4 Ind. Dec. (N.S.) 21 it was decided that Muhammad and, residing in] the village of Gopalpur and in the habit of attending prayers at the mosque there, had not 'a direct interest', in the endowment of the mosque within the meaning of the section, that thereupon the Legislature interfered and eliminated the word 'direct', that the object of the elimination was not to make a departure from the principle of Romilly's Act but merely to discountenance the illiberal construction, placed upon the expression previously employed and to enable the persons in the position of the plaintiffs in Jan Ali v. Ram Nath Mundul 4 Ind. Dec. (N.S.) 21 to maintain a suit under the said section. In the opinion of the learned Chief Justice, 'the interest in the trust must still, in Lord Eldon's words, be a clear interest, that it is to say, a present and substantial, and not a remote and fictitious, or purely, illusory, interest, and that, whilst indicating the necessity of taking a more liberal view than had been taken by our Courts in some case s, he Legislature did not intend that we should go to the other extreme and allow any member of the Hindu and Muhammadan public to sue with the (sic) consent in regard to every temple (sic) in British India.' In the (sic) of Mr. Justice Old field, the interest (sic) 'is an interest which is substantial (sic) sentimental or remote.' His (sic) observes that, Proof of residence in the neighborhood of the institution will no doubt be one way of establishing possession of an interest, not by any analogy with the rights of parishioners in England, but on the simpler ground that those who live near to the institution will be most likely to take advantage of its benefits.' According to Mr. Justice Courts Trotter, 'the interest required by the Statute to reside in the realtor must be, in the words of Lord Eldon, clear or, in the words of the learned Chief Justice in this case, a present and substantial, and not a remote and fictitious, or purely illusory, interest'; or, in the words of the learned Judges in Mohiuddin v. Sayiduddin 20 C. 810 an existing interest and not a mere contingency.' 'His Lordship adds, 'beyond that, it seems to me that the question as to whether any given person has or has not an interest, as so defined, is a pure question of fact and must be left to the Court, before whom he appears, to decide in the light of these general principles on a consideration of the particular circumstances of each case.' The question for the Court's consideration is whether the plaintiffs in this case possessed such an interest as is set forth above in the plaint institution.
3. Now, the undisputed facts are these:-- The 1st plaintiff was one of two persons who successfully prosecuted a suit under Section 30 of the Civil Procedure Code of 1882 in connection with this very institution vide Ganapati Ayyan v. Savithri Ammal 21 M. 10 . He formerly lived at Nemmeli, which is 9 furlongs from the suit chatram, and possessed an interest as a partner in a rice mill there. He now resides at Mannargndi, which is 8 miles from the suit chatram, and still claims an interest in the said rice mill at Nemmeli and in a portion of the house which he formerly occupied at that place. Ho also swears that he has taken meals at the chatram en various occasions. The other side, however, does not concede that he has so taken meals and further questions his alleged interest in the said house and rice mill. The 2nd plaintiff is a permanent resident of Nemmeli. He also affirms that he is a Dayadhi of the original donor and that he has been taking meals at times at the choultry, though these two facts are not admitted by the other side.
4. It seems to me that the 1st plaintiff, having in the past devoted his time and energy in order that the affairs of the chatram might be placed on a proper footing and that the objects of the trust were duly carried Out, must be considered to be a person possessing an interest in the institution to see that the fruits of his labour are not lost. He is also a resident of Mannargudi and has occasion to go to Nemmeli. In doing so, he has, to pass by the suit choultry which lies on the way. The choultry is intended for the benefit of the Brahmins generally, Being a member of that community, be is entitled to take meals at the choultry it, he chooses to do so. Living within 8 miles of the choultry and haying occasion to pass by it his chances of resorting to it are not remote.
5. As regards the 2nd plaintiff, living in the neighbourhood of the institution and being a member of the Brahmin community and as such entitled to make use of the choultry he must, in the light of the observations of Mr. justice Oldfield quoted above, be held to be a person possessing an interest in the institution. It is urged that he is a well-to do person and as such is not likely to resort to the choultry, all the more so, as his house is situated within easy distance thereof. But the benefit of the choultry is not limited to the poor nor to travellers coming from a distance, but to Brahmins in general without restriction of sect or grade in life.
For the above reasons, I find that the plaintiffs have a legal interest to maintain the suit. This appeal coming on for final hearing, after the return of the finding of the lower Court upon the issues referred by this Court for trial, the Court delivered the following
Sadasivi Aiyar, J.
6. The suit was brought by two plaintiffs with the sanction of the Advocate General to have a scheme framed in respect of a choultry charity established in Nemmeli in the Mannargudi Taluk, Tanjore District.
7. The first question argued in this appeal is whether the plaintiffs have got the necessary substantial interest to institute the suit, having regard to the Fall Bench decision in Ramachandra Iyer v. Parameiwaran Munbu 50 Ind. Cas. 693 . On the evidence taken on remand, I am clearly of opinion that the. plaintiffs have got such a substantial interest its the maintenance of the charity and that their interests are not merely 'sentimental' or too 'remote.'
8. The next question is whether the finding of the lower Court that the second defendant is not a trustee of the institution and that there is, therefore, a vacancy in the office of trustee which has to be filled up, in other words, whether the opinion of the lower Court that the consideration of the question whether the 2nd defendant should be removed from the office of trusteeship before providing in the new scheme for the appointment of a trustee does cot arise in this case owing to the 2nd defendant not being a trustee is correct. The lower Court says 'the effect of the High Court's judgment in the case reported ad Ganamati Ayyan v. Savithri Animal Ind. Dec. (N.S.) 364 which, in my humble opinion, completely put an end to the right of trusteeship created in favour of his heirs by Gopalakrishna Ayyar '(the grandfather of the minor 2nd defendant and the father of the 1st defendant)' is to create a new line of trustees which, however, depended for its continuation on the willingness of the District Board of Tanjore to interfere as each vacancy arose to appoint a new trustee. The argument of the 2nd defendant's Pleader assumes that the trustee ship cannot be vacant even for a moment and that somebody or other must have become a trustee by operation of law as soon as the High Court's scheme proved to be ineffective, a proposition for which there is no authority.' To understand these observations of the lower Court, few facts have to be stated. The founds of the feeding charity in question was the 1st defendant's father. He was also the 1st trustee. The 1st defendant became, trustee on his father's death in (sic) with the directions of the trust (sic) He was dismissed for misconduct (sic) brought on behalf of all the (sic) public by a few persons who were (sic) to sue on such behalf under Section 30 of the old Civil Procedure Code. (That suit was not instituted under Section 539 of the old Code of Civil Procedure corresponding to the present Section 92). It was in that suit that the final decision referred to above was passed by the High Court see the judgment reported as Ganapati Ayyan v. Savithri Ammal Ind. Dec. (N.S.) 364. That decree became ineffective by the refusal of the District Board to appoint a successor to the trustee appointed by the lower Court on dismissal of the 1st defendant. All the parties interested thought that the High Court itself had the power in execution in pursuance of its own decree to appoint a successor, but when the matter came up before this Court in Civil Miscellaneous Petitions 717 and 983 of 1917 my learned brother, sitting with Srinivasa Aiyangar, J., held as follows:-- 'There being no provision in the old decree allowing an application for an alteration of the scheme and there being no provision of the Code under which we can entertain an application either for an alteration of the scheme or for the appointment of a new trustee, we are unable to entertain these applications. Any alteration of the scheme or a fresh appointment of a trustee can only be made in a suit under Section 92 of the present Civil Procedure Code instituted for that purpose.' It was in consequence of these observations that the present suit seems to have been instituted.
9. I do not think that the above decision passed on those petitions precludes the 2nd defendant from contending that, under the general law, when a vacancy occurred in the office of trustee, the trusteeship reverted to the family members in the line of the founder and that, the 1st defendant, having been made incapable daring his lifetime of Maiming the trusteeship owing to his dismissal in the former suit (he has also disclaimed any right in himself in the pleadings in this suit), 2nd defendant, the on of the 1st defendant, who was not in (sic) at the time of the former suit, or (sic) the trustee as he belongs to words (sic) of the founder. I accept the con-intended as it is supported by the decision and not Gauranga Sahu v. Sudevi Mata 32 M.L.J. 597 Lord the trusteeship has so reverted to the 2nd defendant. The lower Court's preliminary decree will be, therefore, modified by omitting the words 'that there is a vacancy in the office of the trusteeship of the plaint (sic)', and the 2nd defendant on account of his minority be disqualified to hold the trusteeship of the plaint charity.' The Sub-ordinate Judge's Court while framing a scheme may, of course, if it considers it advisable in the interests of the institution, appoint an acting trustee during the minority of the 2nd defendant.
10. The first dependant will bear his own costs. The costs of the other parties will be provided for in the final orders to be passed in the suit.
Spencer, J.
11. I agree.