An application for removal of trustees under a scheme decree is maintainable.

ORDER : This is a petition seeking to revise the order of the Principal Subordinate Judge, Tiruchi, holding that an application for removal of trustees in a scheme suit is not maintainable, and that the remedy of the petitioners is to file a proper suit for the purpose of the removal of the trustees. A scheme was framed for the management of Tennur Hazarat Kutbisha Durga wake by the Sub Court on 31-7-1937. The petitioners are sharers belonging to Bibi Sahib's branch. The second respondent in the lower court was the hereditary trustee, and, other, non-hereditary trustees. The petition was opposed on the ground that the application was not maintainable.

2. The scheme decree provides for the appointment of trustees. Clause (6) of the decree provides that non-hereditary trustees shall hold office for five years subject to the removal by court in the meanwhile for misfeasance, malfeasance or non-feasance. According to the respondents, for the purpose of removal of trustees on the ground of misfeasance, malfeasance or non-feasance, a proper suit has to be filed and an application in execution would not lie. The petitioners, on the other hand, contended that, as the scheme decree itself provided for removal of the trustees on the ground of misfeasance, malfeasance or non-feasance, the petition would lie. The lower court relied on Vaithialinga Mudaliar v. Board of Control Sri Thiagarajaswami Devasthanam. Tiruvarur, 71 Mad LJ 87 : (AIR 1936 Mad 581) and held that the application was not maintainable.

3. In Veeraraghavachariar v. Advocate General, Madras, ILR 51 Mad 31 : (AIR 1927 Mad 1073) a Full Bench of this court held that, if in a decree for a scheme framed under S. 92 C.P.C., liberty is given to persons to apply to the court for directions merely to carry out the scheme already settled, such reservation of liberty in the decret will be intra vires if the assistance of the court can be 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. In 71 Mad LJ 87 : (AIR 1936 Mad 581) this court followed the Full Bench decision and held that a scheme decree for a charitable trust cannot reserve any power to the court as a part of the scheme to remove a trustee in the event of the trustee committing a breach of trust or failing to perform his duties, that the only power that exists for the removal of the trustee of a charitable trust is contained in Section 92 Civil Procedure Code and that removal can only be by means of a suit instituted in accordance with that provision. The Full Bench decision of this court in Veeraraghavachariar v. Advocate General Madras ILR 51 Mad 31 : (AIR 1927 Mad 1073 (FB)) was commented upon by the Supreme Court in Anandrao v. Shamrao AIR 1961 SC 1206. The Supreme Court disagreed with the reasoning of the Full Bench decision of this Court and held :

"It is not necessary to bold 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 administration 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 administration of the trust to allow for its modification by an application."

While differing from the view of the Madras High Court, the Supreme Court accepted the view of the Bombay, Calcutta, Allahabad and Patna High Courts and held 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, that such a scheme is analogous to an administration suit, and that so long as the modification in the scheme is for the purposes of administration, such modification can be made by application under the