Delhi High Court
Jain Society For The Protection Of ... vs The State on 17 August, 2001
Equivalent citations: AIR2001DELHI484, 93(2001)DLT798, 2002(61)DRJ71, AIR 2001 DELHI 484, (2002) 61 DRJ 71, (2002) 1 HINDULR 124, (2003) 1 MARRILJ 335, (2002) 1 RECCIVR 263, (2002) 1 ICC 930, (2001) 93 DLT 798
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
ORDER Sanjay Kishan Kaul, J.
1. Whether the petitioner, a society registered under the Societies Registration Act XXI of 1860 (hereinafter referred to as "the Act") is prohibited from obtaining letters of administration because of Section 236 of the Indian Succession Act, 1925, (hereinafter referred to as "the Succession Act")? The answer to this question will dispose of the present reference made by the learned Single Judge vide order dated 22nd January, 1991.
2. The factual matrix required to be stated for determination of the present controversy is very limited. Late Ratan Lal is alleged to have executed a Will dated 15.10.1977 bequeathing a part of this estate to Jain Bal Ashram. No executor was appointed in the Will. The said Jain Bal Ashram is managed by the Jain Society for protection of Orphans for India, a society registered under the Act. Sh. Ratan Lal died on 4.3.1978. A petition was filed under Section 276 of the Succession Act for grant of letters of Administration with the will annexed. Objections were filed on behalf of the natural heirs of late Ratan Lal and inter alia it was alleged that the Will filed by the appellant-Society was forged and fabricated and in any case there was a subsequent Will dated 26.11.,1977 in favor of the natural heirs.
3. The petition was pending when the issue arose about maintainability of the probate petition as the petition had been filed by a Society registered under the Act. This objection arose in view of Section 236 of the Succession Act which reads as under:
"236. To whom administration may not be granted.-
Letters of Administration cannot be granted to any person who is a minor or is of unsound mind (nor to any association of individuals) unless it is a company which satisfies the conditions prescribed by rules to be made (by notification in the official Gazette) by the State Government in this behalf."
4. The objection was that the Society was an Association of Individuals and thus no letters of Administration could be granted to it. This aspect has been considered earlier by another Single Judge of this Hon'ble Court in Inder Chand Nayyar V. Sarvadeshik Arya Pratinidhi Sabha and another, where it was held that letters of administration could be granted to a society registered under the Act. This judgment was rendered by B.C. Mishra, J. However, Mahinder Narain, J. was not in agreement with this view and in terms of the order dated 22.1.1991, directed that the case be laid before the Chief Justice of constitution of Larger Bench to hear and determine this question. The matter has now been placed before us to decide this controversy.
5. At the inception it may be stated that there are two distinct judicial views in this matter. The first view is of the Lahore High Court and the second view is that of the Allahabad High Court followed by the Delhi High Court.
6. The first view is pronounced in Mahashaya Krishan Vs. Mt. Maya Devi and others, AIR (35) 1948 Lahore 54 which considered the question of grant of letters of administration to the Arya Pritinidhi Sabha, a society registered under the Act. The view taken was that an association of individuals does not cease to be an association by the mere fact of its being registered as a registered society under the Act and thus the registration of the society does not exempt the society from the operation of Sections 223 and 236 of the Succession Act. It may be stated that Section 223 of the Succession Act creates a similar bar to the grant of probate as Section 236 does for the letters of Administration. Achhru Ram, J. in the said judgment was of the view that registration under the Act only confers on it certain privileges which are not enjoyed by other associations of individuals. An illustration of this was that a society may sue or be sued in the name of the president, chairman or principal secretary or trustees as may be determined by the rules and regulations of the society vide Section 6 of the Act.
7. The Division Bench of Allahabad High Court held a different view on this controversy in Benares Hindu University V. Gauri Dutt Joshi . The Allahabad High Court referred to the definition of the word "person" under the General Clauses Act, which included a Company or association or body of individual whether incorporated or not and was of the view that there was nothing in the context which would compel them to hold that probate or letters of Administration can be granted only to human being or that the word "person" used in Section 236 and 232 of the Succession Act had been used in different sense then the one given in the General Clauses Act. Since there was no doubt that Benares Hindu University could be a legatee, it was held that the word "person" used in the Succession Act would include a Corporation or body like the Benares Hindu University.
8. The Allahabad High Court in the subsequent judgment in Ganga Sahai V. Bharat Bhan and others, again had the occasion to consider this aspect. Mootham, J. on behalf of the Bench considered the case of Arya Pritinidhi Sabha, a society registered under the Act. The argument was the same that the society was a mere association of individual and admittedly not being a company, is not therefore entitled to the grant of letters of Administration. The Division Bench of the Allahabad High Court specifically dissented from the view taken by the Lahore High Court. While considering the provisions of the Act, it was observed that the society has a name and its property is deemed to vest in the governing body of the society. The society may sue or be sued in the name of the president, chairman or principal secretary or trustees, as may be determined by the society and the execution of a decree obtained against the society was liable to the enforced only against the property of the Society (Sections 6 and 8 of the Act). Further provision is made in the Act for dissolution of the Society and adjustment of its affairs under Section 13 of the Act. Thus it was held that the society had an existence distinct from that of its members. It has a separate name and can hold property through trustees, it can sue and be sued, and any person having a claim against it must look to its property and not that of its members for satisfaction of his dues.
9. At this stage it may be relevant also to refer to a Constitution Bench judgment of the Supreme Court reported as Board of Trustees Ayurvedic and Unani Tibia College V. State of Delhi (New Delhi Administration) and another, . The Supreme Court had the occasion to consider whether a society registered under the Act was a Corporation or not. It was held that such a Society was not a Corporation. The reason given by the Supreme Court was that there was no sufficient words in the act to indicate an intention to incorporate. It was observed that Sections 5, 6, 7 and 8 of the Act do not show any intention to incorporate though they confer certain privileges on the registered society, which would be wholly un-necessary if the registered society was a Corporation. The conclusion thus was that the provisions of the Act do not establish the main essential characteristic of a Corporation aggregate, namely, that of a intention to incorporate a Society.
10. Mr. Ishwar Sahai, learned Sr. counsel for the appellant supported the view taken by the Allahabad High Court and earlier by B.C. Misra, J, a single Judge of this Court in Inder Chand Nayyar's case (supra) as the correct view. B.C. Misra, J. followed the view of the Division Bench of the Allahabad High Court in Ganga Sahai's case (supra) and dissented from the view of the Lahore Court in Mahashaya Krishna's case (supra). Mr. Ishwar Sahai, learned Sr. Counsel contended that the Society registered under the Act was not a mere association of individuals and would thus not fall within the exclusion of Section 236 of the Act. A society is not a corporation, in view of the judgment of the Supreme Court in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi (supra). But learned Sr.counsel contended that it had a separate legal entity and was capable of suing and being sued in the name of the president, chairman, secretary or any other person. Mr. Sahai, learned Sr.counsel for the petitioner further drew strength from the judgment of K.C. Thomas Vs. R.L. Gadeock and another, which referred to the Supreme Court Judgment in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi (supra). The Division Bench of the Patna High Court while noting the legal proposition that a society registered under the Act is not a body corporate or Corporation having distinct legal entity in the sense of a company incorporated under the Companies Act, 1956, came to the conclusion that yet a society has properties of its own, although the title of the property may vest in the Board of Trustee or the Board of Governors. A person serving under society is an employee of the society under the control of Board of Governors. The Patna High Court was thus of the view that in the limited sense of possession, a different legal entity, the Society was distinct from an association of an individual. Reference was made to the decision of the House of Lords in Bonsor V. Musician's Union 1956 AC 104, which was also noticed by the Supreme Court in the case of Board of Trustees, Ayurvedic and Unani Tibia College (supra). Thus the Patna High Court was of the view that a society registered under the Act may not be a body corporate, quite distinct from its members, but without going into the debatable question as to whether it would have its own legal entity or not, suffice it to say that yet it had got a separate existence for many purposes.
11. Mr. J.K. Seth, learned Sr. Counsel for the respondent on the other hand relied strongly on the Board of Trustees, Ayurvedic and Unani Tibia College case (supra) of the Supreme Court to contend that once a society was held not to be a corporation, there was no way that it would not come within the bar created by Section 236 of the Succession Act. Mr. Seth contended that a legal entity is either a juristic person or not a juristic person-society thus did not cease to be association of an individual nor it become a juristic person in view of the fact that it was not a corporation in the sense of being incorporated. It was further contended that Section 6 of the Act did not make a society juristic person. The example of a Hindu un-divided family or a partnership was given to contend that the society was similar in character.
12. We have considered the submissions advanced on behalf of the parties. It would be appropriate to consider the object of Section 236 of the Succession Act. There is no doubt that Sections 223 and 236 of the Succession Act are dis-enabling provision in the sense they dis-entitle certain categories from applying for grant of probate or letters of Administration. The first two categories mentioned are a minor or a person of un-sound mind. The reason is obvious. There is a legal incapacity in these two classes of persons to sue or being sued. Such a class of persons have to act through a guardian. The third category is of an association of individuals. We have tried to consider the object of the exclusion of such association of individuals. For this purpose one has to seen what is the responsibility of any one applying for probate or for letters of Administration. In case of probate and letters of Administration, the person so applying stands in a fiduciary capacity to the court. He is bound to administer the estate of deceased, whether there exists a will or does not to ensure that the estate is utilised and transferred to the persons who are beneficiaries. These can be beneficiaries under a Will or the natural heirs. If an association of an individuals was permitted to do this, there could be numerous complications in terms of disputes inter se the association of individuals or a question of accountability in their fiduciary capacity to the court. Thus the object would be to fix responsibility for the fiduciary capacity.
13. There is no doubt that in case of a society, registered under the Act, it can be sued or sue through a person. The present petition has been filed through the Secretary of the Society. Thus in case of a society, it is possible to put the responsibility on the person so applying on behalf of society.
14. There is another aspect of this matter. There are often cases of testators bequeathing their estate to voluntary organisations and Associations like registered societies. The object cannot be to preclude such societies from utilising the estate bequeathed to them by the Testator. A legatee should derive the benefit of the estate bequeathed. The most appropriate person to apply for probate or letters of Administration in such cases would be the person authorised by the society to do the needful.
15. We are thus of the considered view that in so far as applicability of Sections 223 and 236 of the Succession Act are concerned, the view taken by the Allahabad High Court and earlier by B.C. Misra, J. of this High Court is the correct view and consequently we respectfully disagree with the view of the Lahore High Court. The Society is not a corporation in terms of judgment of the Board of Trustees, Ayurvedic and Unani Tibia College (supra). However, it cannot be mere association of individuals. It is something more than that. This is in view of the powers conferred under Section 6 and 8 of the Act. It is also relevant to state that the example of partnership and Hindu undivided family will not be appropriated as in these two cases individuals are also liable for the estate. However, in case the society only, a society can be proceeded against and not the individual assets of the member. Thus the society stands at a different footing for this limited purpose. The society does have separate existence for many purposes, though it is not a body corporate in the form of a Corporation. The society thus does have an existence distinct from its members.
16. There is also no doubt about the fact that Sections 223 and 236 of the Act are dis-enabling provisions. These dis-entitles certain category of persons from seeking probate or letters of administration. Thus keeping the object of Sections 223 and 236 of the Act in mind the disability is liable to be construed strictly and narrowly. As long as the aspect of fiduciary responsibility of any person to the court is taken care of, which in our opinion is taken care of in case of a society registered under the Act, there is no reason why it should be held dis-entitled to obtain probate or letters of Administration. The mischief which could be created by an Association of an individuals applying for letters of Administration in as much as it may lack of accountability towards the court in the fiduciary duty, does not exist.
17. We thus hold that a society registered under the Act is entitled in law to seek letters of Administration and such a society is not dis-qualified within the parameter of Section 236 of the Act. The reference is answered accordingly.
18. Parties are left to bear their own costs.
19. The case may now be listed before learned Single Judge for further directions on 3rd September, 2001.