Kerala High Court
Plaintiff vs The Pachalam Erattakulangara ... on 21 July, 2014
Author: P.V. Asha
Bench: T.R.Ramachandran Nair, P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
&
THE HONOURABLE SMT. JUSTICE P.V.ASHA
MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936
AS.No. 200 of 2002 (D)
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AGAINST THE JUDGMENT IN OS 533/1992 of III ADDL.SUB COURT, ERNAKULAM
APPELLANT(S):PLAINTIFF
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JOSEPH ABRAHAM
MOOLAVATTOM P.O., KOTTAYAM-1.
BY ADVS.SRI.FEBIN J.VELUKARAN
SRI.ROY THOMAS
SRI.MATHAI M PAIKADAY(SR.)
RESPONDENT(S)/DEFENDANTS:
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1. THE PACHALAM ERATTAKULANGARA BHAGAVATHI
(KATTUMGAL) - BHAGAVADI DEWASOM PACHALAM, COCHIN-12
REP.BY ITS SECRETARY.
2. THE PRESIDENT, THE PACHALAM ERATTAKULANGARA
(KATTUMGAL) BHAGAVADI DEVASWOM
PACHALAM, COCHIN-12.
3. K.V.PARAMESWARAN, PRESIDENT,
THE PACHALAM ERATTAKULANGARA (KATTUMGAL) BHAGAVADI
DEVASWOM, PACHALAM, COCHIN-12.
4. T.N.SAJEEVAN, S/O. NARAYANAN,
THUNDIPARAMBIL, PACHALAM, COCHIN-12.
5. M.G.RAVINDRAN, S/O.M.B.GOPALAN
AGED 23 YEARS, MADAPPATTUPARAMBIL, PACHALAM
COCHIN-12.
6. K.G.PRASAD, S/O.K.S.GOPAL RAO,
KARUVDLIPARAMBIL, PACHALAM, COCHIN-12.
7. T.N.GOPALAKRISHNAN, S/O.T.B.NEELAMBARAN,
THUNDIPARAMBIL, PACHALAM, COCHIN-12.
R,R4 TO R7 BY ADV. SRI.V.V.ASOKAN
R,R4 TO R7 BY ADV. SMT.S.AMINA
R,R1 BY ADV. SRI.C.K.ARAVINDAKSHA MENON
R,R1 BY ADV. SRI.K.C.CHARLES
R,R1 BY ADV. SRI.A.BALAGOPALAN
R,R1 BY ADV. SRI.PRAKASH P.GEORGE
R,R1 BY ADV. SRI.M.N.MANMADAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-6-2014,
ALONG WITH AS. 228/2002, THE COURT ON 21/7/2014 DELIVERED THE
FOLLOWING:
T.R.RAMACHANDRAN NAIR &
P.V. ASHA, JJ.
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A.S. Nos.200 and 228 of 2002
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DATED THIS THE 21ST DAY OF JULY, 2014
JUDGMENT
Ramachandran Nair, J.
Both these appeals are filed by the appellant from the common judgment in O.S. Nos.298/1992 and 533/1992 on the file of the Additional Sub Court, Ernakulam. He is the plaintiff in O.S. No.533/1992 and additional fourth defendant in O.S. No.298/1992. The court below has decreed O.S. No.298/1992 in favour of the plaintiffs therein and dismissed O.S. No.533/1992.
2. The necessary facts for the disposal of the appeals are the following: Essentially this is a matter wherein the claim of the appellant for specific performance of an agreement for sale of the property belonging to Erattukulangara Bhagavathy Devaswom, is under dispute. The plaint schedule property is having an extent of 71.5 cents in Sy. No.61/1 of Ernakulam Village.
3. Going by the averments of the plaint in O.S. No.298/1992, the plaintiffs are members of Vysya (Vaniya) community of Pachalam, to which A.S.Nos.200 & 228/2002 -2- the Erattukulangara Bhagavathy Temple and the Devaswom belong. The first defendant is "Erattukulangara Bhagavathy Devaswom" which is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 and its President and Secretary are arrayed as second and third defendants. For the management and functioning of the Devawom, bye-laws have been framed. Defendants 2 and 3 were elected in the general body meeting held in October, 1991. It was alleged that going by clauses 42 to 44 of the bye-laws any immovable property of the Devaswom can be sold only in accordance with the mandate of the majority of adult members of the community who have attained the age of 21 years. This has to be ascertained by a referendum to be held for that purpose itself. In violation of the same, the President secretly entered into an agreement with the additional fourth defendant (appellant herein) for sale of the property at Rs.10,000/- per cent. He also received a sum of Rs.75000/- way of advance which was not credited in the account of the Devaswom and has not been deposited in Canara Bank, Ayyappankavu branch where all the amounts of the Devaswom are usually deposited. A.S.Nos.200 & 228/2002 -3- Going by the bye-laws, only Rs.250/- or less alone can be held in cash by any office bearers of the Devaswom. Therefore, retention of Rs.75,000/- is in violation of Clause 50 of the bye-laws. It was alleged that the then President is attempting to alienate the property to enrich himself.
4. One Shri M.P. Gopalan and another Shri K.V. Parameswaran who were members of the committee filed a suit against defendants 2 and 3 as O.S. No.252/1992 before the Munsiff's Court, Ernakulam seeking for a permanent prohibitory injunction restraining the defendants from alienating the plaint schedule property except in accordance with the result of a referendum to be conducted as per clauses 42 to 44 of the bye-laws. An interim injunction was granted by the court in I.A. No.1044/1992 against alienation. It is alleged that to overreach the directions of the court, they hurriedly held a referendum on 22.3.1992, totally in violation of the provisions of the bye-laws. After the conduct of the referendum, the present suit was filed to challenge the validity of the same and the plaintiffs sought a declaration that the referendum held on 22.3.1992 is in violation of the terms of the bye-laws of the society and as such it is illegal and void. The A.S.Nos.200 & 228/2002 -4- next prayer is to restrain defendants 2 and 3 by a permanent injunction from alienating the property of the first defendant Devaswom pursuant to the agreement executed by the first defendant in favour of the additional fourth defendant.
5. In paragraph 10 of the plaint, various infirmities in the conduct of the referendum have been explained. They are mainly that: the plaintiffs and persons who were similarly situated, have not been permitted to vote in the referendum; many of the eligible persons were not given ballot papers on the ground that they are in arrears of subscription and have not been given any opportunity to clear off the arrears; no list of all members who have attained 21 years of age has been prepared for holding the referendum; in violation of the provisions of the bye-laws, voting by proxy was allowed and examples were also stated in the said paragraph; and list of members who have attained the age of 21 years, has been given in the plaint, to whom no notice was sent before the referendum and no steps were taken to enlist them. It is stated that they have not been permitted to participate in the referendum in spite of filing a representation. If all the eligible members A.S.Nos.200 & 228/2002 -5- who have attained the age of 21 were allowed to participate in the referendum, then the referendum would have been against the defendants as according to them, they could obtain only a slender majority of five. In a referendum voting has to be from 9 a.m. to 7 p.m. as per the bye-law. But herein, the voting was stopped by 2.30 p.m.
6. The defendants in O.S. No.533/1992 are respectively the Devaswom, the President and additional defendants 4 to 7 are the plaintiffs in the other suit. According to the plaintiff, a meeting of the general body was convened by notice dated 30.6.1989, to be held on 16.7.1989 to consider various items including the sale of the property. Another meeting was convened on 19.8.1990 to consider the sale of the property and in the meeting finally held on 6.1.1990 there was a unanimous decision to sell some of the properties at the rate not below Rs.10,000/- per cent, some area not below Rs.6,000/- per cent and the remaining area below Rs.4,000/- per cent. According to the plaintiff, on the basis of the authority, the President negotiated with the plaintiff and entered into an agreement to sell the property of the Devaswom to the extent of 71.5 cents at Rs.10,000/- per A.S.Nos.200 & 228/2002 -6- cent. A period of 8 months was provided from the date of the agreement, i.e. 12.8.1991, to execute the sale deed. Later, the plaintiff by registered letter dated 31.3.1992 informed the defendants of his readiness and willingness to pay the entire sale consideration on or before 11.4.1992 and to get the sale deed executed. Stating that contrary to the terms of the agreement the first and second defendants are intending to sell the property to some other persons, the suit was filed.
7. We will now refer to the contentions in the written statement filed by the first defendant Devaswom in O.S. No.298/1992. In paragraph 3, reference is made about the general body meeting convened on 16.7.1989 to consider the agendas including the sale of the property. It is stated that in the meeting held on 6.1.1990 the general body decided to sell the property on certain conditions. On the basis of the said decision, the second defendant entered into an agreement with the plaintiff in O.S. No.533/1992 for sale of the property at the rate of Rs.10,000/- per cent and received an amount of Rs.75,000/- by way of advance. It is further averred that the amount received was credited to the account of the Devaswom. It is stated A.S.Nos.200 & 228/2002 -7- in paragraph 7 that a referendum was held on 22.3.1992 as decided by the then committee. Lastly, it is stated in paragraph 10 that in the extra-ordinary general body meeting of the first defendant held on 3.1.1993, it was unanimously decided not to sell the property belonging to the Devaswom since the said property is essential and required for the Devaswom. The committee was directed to return Rs.75,000/- . But the plaintiff in O.S. No.533/1992 was not willing to receive the advance and to cancel the agreement and he filed the said suit. It is stated that the general body which met on 3.1.1993 nullified its earlier decision and also the referendum dated 22.3.1992 and finally it is stated that the first defendant has no intention at all to sell the property to the plaintiff in O.S.No.533/1992.
8. On behalf of the defendants Devaswom and its President, in O.S. No.533/1992, a written statement has been filed. Significantly, it is averred in paragraph 3 that the decision said to have been taken in the general body meeting referred to in paragraph 2 of the plaint for sale of the property, has no legal validity. For taking a decision with regard to the sale of the property concerned, a decision has to be taken as provided under clauses A.S.Nos.200 & 228/2002 -8- 42 and 43 of the bye-laws. The agreement dated 12.8.1991 is not legally sustainable in law. The President has no right to enter into such an agreement and the President and Secretary have to join as parties in the agreement. The execution of the agreement dated 12.8.1991 is admitted. It is stated that the agreement was executed by the third defendant with the bonafide belief that the general body meeting has every power to resolve to sell the plaint schedule property. It is further stated that the third defendant signed the agreement and received a sum of Rs.75,000/- as advance. It is also stated that only when O.S. No.252/1992 was filed by some members, the President realised the legal position that the general body meeting held on 6.1.1990 has no right to take a decision to sell the property and the agreement dated 12.8.1991 also is not legally sustainable in law. After filing of the said suit, only the plaintiff in O.S. No.533/1992 sent a notice dated 31.3.1992 expressing his readiness and willingness to pay the balance amount and to execute the agreement. It is further stated that the members of the first defendant found that the resolution taken in the general body meeting held on 6.1.1990 and the agreement executed on 12.8.1991 are A.S.Nos.200 & 228/2002 -9- illegal and irregular. Now a portion of the temple compound is being acquired for widening the existing railway line lying on the western side of the temple compound and in that event, the existing kallyanamandapam will have to be demolished. There is no other space available in the temple compound to construct the kallyanamandapam and other necessary structures. Finally, it is stated that the first defendant is prepared to return the advance amount received from the plaintiffs.
9. An additional written statement has been filed on behalf of the first defendant Devaswom wherein, inter-alia it is contended that the agreement in question was not entered into by the then President for the benefit of the first defendant. The then President of the first defendant colluded with the plaintiff and created the agreement with a view to make unfair advantage for themselves.
10. It was further contended that the copy of the minutes of the meeting held on 6.1.1990, mentioned in paragraph 2 of the plaint and produced as item No.4, is a fabricated and concocted document and no meeting as alleged in paragraph 3 of the plaint was held or convened on A.S.Nos.200 & 228/2002 -10- 6.1.1990.
11. Both sides have adduced evidence in the matter. P.Ws.1 to 5 and D.Ws.1 to 3 have been examined as witnesses and Exts.A1 to A9, Exs.B1 B19 and Ext.C1 have been marked in evidence.
12. We heard learned Senior Counsel for the appellant, Shri Mathai M. Paikeday and Shri Mayankutty Mather, learned counsel for respondents 4 to 7 in A.S. No.200/1992 (respondents 1 to 4 in A.S. No.298/1992) and Shri K.N. Sivasankaran appearing for the other respondents.
13. Learned Senior Counsel for the appellant, Shri Mathai M. Paikeday attacked the findings of the trial court on various issues. It is stated that the court went wrong in finding that there was no proper general body decision on 6.1.1990, and that a referendum was not conducted before the agreement for sale was executed and on other aspects concerning the validity of the referendum conducted and regarding the accounting procedure of the society and in respect of the finding that the advance amount received by the plaintiff was not properly accounted in the society. While elaborating his contentions, it was submitted that none of the A.S.Nos.200 & 228/2002 -11- averments in paragraph 10 of the plaint in O.S. NO.298/1992 can help the plaintiffs therein to support their plea that the referendum conducted on 22.3.1992 is invalid. By referring to Ext. B15, the alleged resolution of the general body dated 6.1.1990, it is submitted that the referendum conducted by the general body is clear and the copy of the same has been produced by the plaintiff. It is submitted that going by clause 44, the general body is competent to ascertain the views of the members and the members can express their opinion by mentioning "yes" or "no". According to the learned Senior Counsel, in the written statement of the first defendant in paragraph 3, they had admitted that there was a general body meeting on 6.1.1990 and the receipt of Rs.75,000/- as advance is also admitted. The appellant's claim is therefore well justified. It is therefore submitted that the finding by the court below that no referendum had preceded the execution of the agreement dated 12.8.1991 cannot hold good. Ext.B15 will show that there was an earlier general body meeting also wherein the proposal to sell immovable properties was considered. Therefore, it is submitted that the then President was fully armed with the resolution of the general body to A.S.Nos.200 & 228/2002 -12- sell the property and to execute necessary agreement for that purpose which alone is required as per the provisions of the bye-laws. Our attention was invited to various provisions of the bye-laws in this context (Ext.B1).
14. While referring to Ext.B.12(a) decision dated 3.1.1993 taken in the general body meeting to cancel steps to sell the property, learned Senior Counsel submitted that therein there is no specific reference about the resolution of the general body held on 6.1.1990 and therefore the alleged cancellation has no legal effect. If a subsequent general body wants to cancel any decision, it has to be specifically referred to. It is further submitted that herein the referendum conducted on 22.3.1992 has ratified the resolution of the general body dated 6.1.1990 and it is sufficient. In the meeting of the general body dated 3.1.1993 no valid reasons have also been shown to cancel the resolution taken by the earlier general body.
15. It is also submitted that the conduct of the parties herein is therefore relevant. There is no evidence worthwhile to deny the existence of Ext.B15, viz. the resolution of the general body dated 6.1.1990. It is submitted that Ext.C1 report will show that when the Commissioner visited A.S.Nos.200 & 228/2002 -13- the office to verify various registers including the minutes book, the Secretary informed that all the registers, account books and minutes books are kept in the office of the Advocate. It is stated that the President who was elected subsequently has filed Ext.B17 affidavit, pursuant to the direction issued by the court to produce the minutes book, wherein it is stated hat he could not trace out the minutes book. It is therefore submitted that adverse inference will have to be drawn under Section 114(g) of the Evidence Act. By referring to the evidence of P.W.1, the third plaintiff in O.S. No.298/1992, learned Senior Counsel submitted that even his evidence will show that the agreement has not been cancelled. Learned Senior Counsel further submitted that as far as the referendum is concerned, there is no separate provision to have a voters list and therefore none of the contentions regarding the alleged infirmities in the voters list raised by the plaintiffs in O.S. No.298/1992 can be sustained.
16. Shri Manyankutty Mather, learned counsel appearing for respondents 1 to 4 submitted that the relevant clauses in the bye-laws of the first respondent Society are very clear. The powers of the general body will A.S.Nos.200 & 228/2002 -14- not include any decision to sell the immovable properties and what is specifically authorised is only with regard to sale of movable properties. Regarding the sale of immovable properties, a referendum will have to be conducted, going by Clause 44 of the bye-laws and the procedures for conducting it, have been provided also. Acquisition of properties alone is permitted as among the powers of the general body. Therefore, it is submitted that clauses 36, 37, 41, 42, 43 and 44 of the bye-laws are relevant in this context. It is submitted that the general body cannot take a decision in such a matter and a referendum must have been conducted, which was never done.
17. Learned counsel further submitted that clause 23 of the bye-laws prescribes the procedure for publication of voters list including for conduct of referendum and therefore there should be a separate voters list for conducting referendum. It is specifically provided in the bye-laws that all the adult male members who have attained the age of 21, can participate in the referendum and the referendum will have to be conducted on any Sunday or public holiday from 9 a.m. to 7 p.m. and herein, both these have A.S.Nos.200 & 228/2002 -15- been violated. It is submitted that Ext.B15 is a concocted document, as rightly found by the court below. It is submitted by the learned counsel that in the agreement executed between the then President and the appellant there is no reference about a decision taken in any referendum for selling the property. In the written statement filed in the case also the then President has not stated about any permission granted in the referendum. Therefore, in the absence of a permission, no agreement could have been executed and it is totally vitiated. Learned counsel supported the findings rendered by the court below with regard to the alleged referendum conducted on 22.3.1992 and it is stated that the same was also not properly conducted. The polling was held only upto 2.30 p.m. instead of 7 p.m. He also supported the findings of the court below that there is no evidence in the accounts or registers of the society to show that Rs.75,000/- was received as advance. It is submitted that the Commissioner's report and the relevant registers will show that figures have been interpolated in cash book, account book, etc. Going by the bye-laws, the amount, if received, should be properly accounted and will have to be deposited in bank which A.S.Nos.200 & 228/2002 -16- was never done. It is also submitted that Exts.B9 and B10 will show that the entries are interpolated.
18. Learned Senior Counsel Shri Mathai M. Paikeday in his reply, submitted that when there is an admission of receipt of the amount in the written statement of the then President, no further evidence is required in the matter.
19. In the light of the contentions of the parties, the points that arise for consideration are: (i) Whether, for sale of the immovable property, a referendum is a must and whether any referendum was conducted herein before execution of any alleged agreement for sale; (ii) Whether the alleged resolution of the general body dated 6.1.1990 will enable the President to execute an agreement and whether the same is valid; (iii) Whether the referendum conducted on 22.3.1992 is valid; (iv) Whether the plaintiffs in O.S. No.298/1992 are entitled for a declaration as sought for; and (v) Whether the plaintiff in O.S. No.533/1992 is entitled to the relief by way of specific performance of the agreement.
20. Before going into the contentious issues, it will be profitable to A.S.Nos.200 & 228/2002 -17- refer to the bye-laws of the first defendant/first respondent herein, produced as Ext.A1. Clause 2(c) provides that the head of families, whether male or female, are eligible to be members of the society. Clause 4 provides for 'definitions' and their meaning. The following are the important ones:
"General Body" means a meeting of the head of families coming within the area of the Devaswom. "Head of the family" means a member of the family who has attained majority and is married and if there is no person who has attained majority, the eldest member of the family will be the head of the family. "Referendum" means ascertaining the views of the male members of the community who have attained the age of 21. The subtle difference between 'general body' and 'referendum' is that in the general body only the head of each family who are members can participate, but in a referendum persons who are not members of the general body can also participate. The female members can also participate in the general body meeting, whereas they cannot participate in the referendum. Clause 23 provides that the head of each family can participate in the general body meetings and cast his vote and if, for any reason, he cannot participate in the general body, he A.S.Nos.200 & 228/2002 -18- can authorise his son or brother who is residing along with him and has attained majority, to represent him and vote in the general body meeting on a written request made by the head of the family. It is further provided that for meetings of general body, extra-ordinary general body and for referendum, voters list should be prepared and it should be published in the notice board of the Devaswom along with the notice of the said meeting and seven days time should be given for taking a decision on complaints and the complainant concerned should be informed in writing of the same. Clause 36 provides for ten items on which the general body can take decisions and item 8 is concerning acquisition of property for Devaswom. Item 9 is concerned with sale of movable properties of the Devaswom. Clause 42 provides that in certain matters by a referendum alone a decision can be taken and the participants should be all male members of the community who have attained the age of 21, and the opinion should be obtained in writing. Clause 43 enumerates the matters on which a referendum will have to be conducted. Item 1 of clause 43 is important herein, which relates to the sale of the immovable properties of the Devaswom. Clause 44 A.S.Nos.200 & 228/2002 -19- provides that in order to conduct a referendum, the subject on which the decision will have to be taken, should be published in the notice board and the opinion should be obtained recording "yes or no" in a secret ballot. It will have to be conducted on any Sunday or any other public holidays in the Devaswom office from 9 a.m. to 7 p.m. and the result will have to be announced immediately. As per clause 45 of the bye-laws, a returning officer will have to be appointed and his decision shall not be questioned. Under clause 46, the power to appoint the returning officer is vested with the governing body.
21. Learned Senior Counsel for the appellant submitted that for conduct of a referendum a separate voters list is not necessary. We cannot agree, in the light of clause 23 of the bye-laws. The persons who can participate in the referendum and the general body meeting are not identical. All male members of the community within the area, aged above 21 are entitled to participate in the referendum whereas in the general body the head of each family who is married, alone are eligible to participate. That means, unmarried sons can also participate in the referendum. Females can A.S.Nos.200 & 228/2002 -20- participate in the general body. In the referendum, votes will have to be obtained by secret ballot. In the general body meeting, if the member concerned who is the head of the family is unable to be present, he can authorise his son or brother, as the case may be, to participate in the general body and vote and such a clause is absent as far as a referendum is concerned. Therefore, in a referendum vote by proxy is not permitted.
22. It is also clear from clauses 42 and 43 of the bye-laws that for sale of immovable properties, a referendum will have to be conducted and it is further clear from a comprehensive reading of clause 36 that the power of the general body is only to take decisions on acquisition of assets and sale of movable properties. It is therefore clear that for sale of any immovable property a referendum will have to be conducted and a returning officer will have to be appointed by the governing body.
23. Herein, the appellant is armed with Ext.B15, a photo copy of the alleged resolution dated 6.1.1990. The existence of the same is disputed by the plaintiffs in O.S. No.298/1992. Ext.B15 states that as provided in clauses 42, 43 and 44 of the bye-laws, through secret ballot, it was decided A.S.Nos.200 & 228/2002 -21- unanimously by all the members present, that the immovable properties of the society can be sold. The crucial thing to be noted is that it is only a decision of the general body which is not competent to take a decision with regard to the sale of immovable properties. The constitution of the general body is totally different. For the sale of immovable properties, a referendum will have to be conducted as noted already. There is no case that all the male members of the community above the age of 21 have participated in the general body and they alone have voted in the referendum. That itself invalidates the resolution taken and produced as Ext.B15. Ext.B15 only refers to conduct of an extra-ordinary general body meeting on 6.1.1990.
24. With regard to the register wherein the alleged resolution is recorded, nothing has been proved in evidence. In the report of the Advocate Commissioner, Ext.C1, it is recorded that when he visited the office of the society, it was informed by the Secretary of the Devaswom that all the registers and account books except the daily cash books are in the office of the advocate. The affidavit Ext.B17 filed by the President, P.W.4 A.S.Nos.200 & 228/2002 -22- who was elected subsequently also disputes the existence of the said resolution. He has also stated in the affidavit that he could not trace out the document, viz. the minutes book containing the decision of the general body meeting held on 6.1.1990 in spite of search. The then President Shri K.V. Parameswaran who is the second defendant in O.S. No.298/1992 had the custody of the document. The court below has stated various other reasons also not to accept Ext.B15 and to find hat it is a concocted one. The first two pages of Ext.B15 are in ruled papers and the next two pages are plain papers. This is one of the main reason to reject the document. Further, it is only a photo copy produced by the appellant.
25. Even though learned Senior Counsel for the appellant submitted that an adverse inference will have to be drawn under Section 114(g) of the Evidence Act for non-production of the original minutes book, we cannot accept the same for more reasons than one. The plaintiff in O.S. No.298/2002 has alleged collusion between the appellant and the then President. The then President has also not produced the original minutes book even though in the written statement he speaks about such a A.S.Nos.200 & 228/2002 -23- resolution. As rightly pointed out by the learned counsel for the Society, in the agreement, viz. Ext.B14 there is no reference about any decision of the general body dated 16.7.1989 and 19.8.1989. In Ext.B15 in the second page what is stated is that as decided in the general body meetings on 16.7.1989 and 19.8.1989 the proposal to sell the immovable property of the Devaswom was placed in tune with clauses 43 and 44 and secret ballot was taken. The resolutions dated 16.7.1989 and 19.8.1989 have not been produced before the court.
26. We will now discuss the oral evidence concerning the above aspects. In the cross examination of P.W.1, he has stated that no referendum was conducted prior to 12.8.1991. P.W.4 was the President of the Society at the time of his examination before court. In his examination in chief, he has stated that the referendum conducted on 22.3.1992 is also not legally done. It was hurriedly conducted, after O.S. No.252/1992 was filed on 11.2.1992, for which the executive committee took a resolution on 22.3.1992. On 22.3.1992 itself one Shri T.S. Reghunathan was appointed as Returning Officer. But the then President had taken all steps from A.S.Nos.200 & 228/2002 -24- 3.3.1992, the date of publication of the voters list. Ext.B3(a) marked through him, is the voters list. According to him, the list contained the names of 12 new persons who were included to get support for selling the property. Normally, arrears of subscriptions are being collected during the festival season (March-April). According to him, merely because of non payment of subscription, no member will be kept away. But in the referendum the same was done. The sealed ballot papers have been marked as Ext.B5. He has explained further the difference in the procedures for meetings of general body and for conducting referendum, in his cross examination. According to him, 35 members of the community who have completed 21 years of age, were there but notice was given only to 12 of them.
27. P.W.5 is the member who was appointed as Returning Officer. According to him, the President informed him about the said decision 10 - 12 days prior to the date of the referendum. He has not prepared the draft of the ballot papers and has not entrusted the printing work also and the same was done by the President. He is not aware about the details of the press A.S.Nos.200 & 228/2002 -25- where the same was printed. According to him, has not done anything as Returning Officer. When he was informed about his appointment as Returning Officer, he had replied that he does not know anything about the procedure for conducting referendum also. According to him, in the ballot papers no seal was there. Ext.B3(f) is the ballot paper and it was shown to him. There was no space or column for putting the signature of the Returning Officer and no seal was also there. According to him, a ballot paper which does not contain his signature and the seal, is not a valid one. The polling was stopped by 2.30 p.m., even though the polling time was from 9 a.m. to 7 p.m. The declaration of result, which is in his handwriting, has been produced as Ext.B3(d). The ballot box was not sealed. He has stated further that at least 10 persons have cast their vote by proxy. One Shri Ramachandran and one Shri Prakasan had given complaints to him.
28. D.W.1 was the Secretary of the Society from 29.11.1992. Before that, he was the Joint Secretary for three years. As on 17.1.1990 one Shri P.D. Dhayanandhan was the Secretary. According to him, no referendum was conducted as provided in the bye-laws before execution of A.S.Nos.200 & 228/2002 -26- the agreement with the appellant herein. He has also stated that going by Ext.A1, all documents concerning the Society will have to be signed by the President along with the Secretary. The referendum subsequently conducted was also done illegally. All the members were not given notice. All the menfolk who have attained majority are entitled to vote. 10 - 15 persons were not given notice. The notices were sent and other procedures were undertaken by the President, even though there was a Returning Officer. The proxy voting could not have been allowed, but there were ten proxy votes on that day. In cross examination by the plaintiff, it was again stated by him that in the general body meeting held on 6.1.1990, no referendum was conducted. He also stated that the referendum stated to have been conducted at page 43 of Ext.B15 is not correct. With regard to the minutes book for the period from 1989 to 1991 he stated that he has not been handed over those records.
29. D.W.3 is also a crucial witness who is a member of the Society. According to him he was never entrusted with the conduct of the referendum by the Devaswom. He has also deposed that in Ext.B13 A.S.Nos.200 & 228/2002 -27- resolution recording that he was entrusted to conduct the referendum is not correct. He has also deposed that the statement recorded in Ext.B13 resolution that he was entrusted to conduct the referendum, is not correct. He has not conducted any referendum on 6.1.1990. He is a relative of the second defendant also. The above evidence will show that there was no referendum on 6.1.1990 as contended by the appellant herein.
30. Apart from the same, the alleged resolution dated 6.1.1990 cannot advance the case of the appellant herein since the general body has no power to take such a decision. Only a properly conducted referendum in tune with the provisions of the bye-laws can take such a decision. It is also clear that the general body which has taken the decision on 6.1.1990 and the body which could have taken the decision to sell the property by a referendum are totally different and therefore the composition of the general body on 6.1.1990 being totally different, the resolution itself, if at all was adopted, is not a valid one. Therefore, the said resolution and the alleged agreement falls to ground, the validity of which is challenged in O.S. No.298/1992.
A.S.Nos.200 & 228/2002 -28-
31. Then the question is whether the referendum held on 22.3.1992 can advance the case of the appellant. Regarding the same, the plaintiffs in O.S.No.298/1992 have alleged various infirmities in the plaint in paragraph
10. It is stated that for a referendum to be conducted properly, there should be a voters list which is clear from clause 23 of the bye-laws. The same should include the names of major male members of the community aged above 21. It has been found by the court below, after analysing the evidence, that P.W.5 was the returning officer who was appointed to conduct the referendum. We have already discussed his evidence. Ext.B3 is the voters list containing the names of persons who were entitled to vote in the referendum which was signed by Shri K.V. Parameswaran, the then President (defendant No.2) and not by P.W.5. P.W.5 did not draft the ballot papers or got it printed and all those activities were done by the President. He did not know how many ballot papers were printed and the polling was closed at 2.30 p.m. and the result was announced after one hour. At least 10 voters cast proxy votes. Ext.B3(h) is the complaint dated 9.3.1992 presented by one Shri C.M. Ramachandran before P.W.5 raising allegations A.S.Nos.200 & 228/2002 -29- that eligible voters were omitted from the voters list and ineligible voters were included. No hearing was conducted by P.W.5.
32. In paragraph 21, the court below found that Ext.B3(a) notice regarding the referendum issued as per Clause 44 of the bye-laws, also is dated 3.3.1992. Ext.B3 is the list of voters which was prepared on 3.3.1992. Thus, the voters list was prepared even before publication of the notice for referendum. As per the voters list there are 137 voters and Ext.B11 is the receipt signed by the voters who received the notice of referendum which shows that only 133 voters had received the notice and notice was not issued to four voters. Ext.B3(d) is the result of the referendum prepared by P.W.5. As per this, the sale of the property was approved by a majority of five voters and therefore, the omission of four voters is crucial. Apart from the same, out of 137 voters, only 126 cast their votes at their referendum. Eleven voters did not cast their votes. The polling was closed at 2.30 p.m. which was against the stipulations in the bye-laws, since the polling time had to be fixed from 9 a.m. to 7 p.m. Thus, 11 persons were prevented from casting their votes. The cumulative result of all these is that the referendum A.S.Nos.200 & 228/2002 -30- held on 22.3.1992 is in violation of the provisions of the bye-laws. Apart from the same, the court below was also of the view that a post-referendum cannot be justified. We fully agree with the findings.
33. Learned Senior Counsel Shri Mathai M. Paikeday submitted that a ratification of the decision of the general body is not prohibited, but we are of the view that there is no provision in the bye-laws for ratification as far as this issue is concerned. The decision to sell the property should have been taken in a properly conducted referendum before any agreement is entered into which is absent here. Therefore, the alleged resolution taken on 6.1.1990 is illegal as we have already noted. It is well settled that a ratification by a body can only be of a legal act and not of an illegal thing. The bye-laws cannot be sidelined in an important matter like selling the immovable property. Therefore, the said argument is also not sustainable.
34. Then we will come to the point whether the appellant is entitled for specific performance of the agreement for sale. The only plea was that a sum of Rs.75,000/- was paid as advance. Learned Senior Counsel Shri Mathai M. Paikeday submitted that in the written statement of the then A.S.Nos.200 & 228/2002 -31- President, it has been admitted that Rs.75,000/- was received as advance and no further proof is required.
35. Shri Mayankutty Mather, learned counsel appearing for the Society submitted that the evidence will show that the relevant entries in the cash book and account book have been interpolated and the finding by the court below that the amount was not properly accounted and came to the account of the society is perfectly justified. The evidence with regard to these aspects has also been verified by the Commissioner as clear from Ext.C1 commission report. In respect of point No.(d), after verifying the various cash books produced by the Secretary of the Devaswom commencing from 1.4.1991 to 1.11.1991 and from 1.11.1991 to 31.3.1992 it has been recorded that "at folio No.80 there is a credit entry of Rs.75,000/- with a description "Joseph Abraham, S/o. Abraham, Kottayam"
on 8.8.1991. At folio No.83 of the day book there is a debit entry of Rs.75,000/- with a description "Advance V.935 K.V. Parameswaran (2.D)".
It is seen by the Commissioner that there is an over-writing of the totals in the aforesaid folios (Nos.80 to 83.
A.S.Nos.200 & 228/2002 -32-
36. In Ext.B9 which is the cash book, at page 80 the entries relate to the dates 7.8.1991 and 8.8.1991. There are corrections with regard to the total amount and the balance cash (last entry in the said page). The total cash balance is recorded as Rs.82,517.67. At page 81 also there are corrections at various places with regard to the total amount. Ext.B9(b) is the entry in the cash book at page 83 which is dated 12.8.1991, showing the amount Rs.75,000/- against the name of the President Shri K.V. Parameswaran. In Ext.B10 account book at page 95, as against the date 12.8.1991, the balance amount is shown as Rs.5,098.42. Thereafter, in the last line an entry regarding receipt of Rs.75,000/- as advance is there showing total cash balance as Rs.80,098.42. The last entry is upto the edge of that page itself, beyond the last ruled line in that page. These are factors which were considered by the court below. Going by clause 48 of the bye- laws, receipts, bills and vouchers should be maintained for all cash receipts and expenditures. Under clause 49, the cash will have to be deposited in a bank approved by the general body in the name of the President, Secretary and Treasurer and on no account cash more than Rs.250/- can be kept at a A.S.Nos.200 & 228/2002 -33- time. Herein, there is no evidence to show that Rs.75,000/- has been deposited in the bank, points out the learned counsel for the first respondent, Shri Mayankutty Mather. No receipt is also produced to show the payment of the amount. In the agreement, on the reverse side of the last page, it is stated that on 12.8.1991 the President has received an advance amount of Rs.75,000/- and he has put his signature also. In the absence of anything to show that a receipt was given properly for the amount of Rs.75,000/-, it will only show that he has personally received the amount. With regard to the other entries in the cash book, grave suspicion has also been created. These factors have been properly verified and found against the appellant herein, by the court below in paragraph 34 of the judgment. We have also gone through the entries and agree with the said findings entered by the court below. It was also found by the court below that in Ext.B4 pass book of the Devaswom maintained at Canara Bank, Ayyappankavu Branch, Ernakulam for the period from 6.6.1991 to 11.5.1993 there is nothing to show that Rs.75,000/- was deposited in the bank as per the provisions of the bye-laws. The cumulative effect of all A.S.Nos.200 & 228/2002 -34- these is that the admission of the President in the written statement will not help the appellant herein to show that he had paid Rs.75,000/- to the Devaswom pursuant to the agreement. In that view of the matter, the court below found that no decree can be passed for return of the alleged advance amount of Rs.75,000/- and we find no reason to disagree with the same.
37. Even though learned Senior Counsel for the appellant submitted that a presumption under Section 114(g) of the Evidence Act will have to be drawn with regard to the alleged general body meeting and its resolution dated 6.1.1990, we cannot agree. We have already found that the general body itself is not competent to sell the property and it can only be through a referendum. Since the allegation is denied by the plaintiff and by the additional defendant and the President elected has also filed an additional written statement that there is collusion between the then President and the appellant herein and as the document Ext.B15 has come from the possession of the appellant which is only a photo copy, we will not be justified in accepting the contentions of the appellant based on the said document.
38. Therefore, we find that this is a case where the alleged agreement A.S.Nos.200 & 228/2002 -35- for sale is not preceded by a proper referendum. The referendum conducted on 22.3.1992 is invalid for various reasons as already stated, including that the polling was not held from 9 a.m. to 7 p.m., a proper voters list was not published by the returning officer, eleven members could not participate in the voting and that no decision has been taken on the complaint against inclusion of ineligible members and exclusion of eligible members. Further, the decision taken by the said referendum to ratify the resolution dated 6.1.1990 cannot hold good.
39. Lastly, the question is whether the cancellation of the decision unanimously taken by the general body as per Ext.B12(a), in the referendum dated 3.1.1993 is faulty. It is stated in the resolution that 71 members of the community have requested for cancellation of the proposal to sell 80 cents of property and the same should be used for the purpose of the Devaswom. It is evident from the minutes of the meeting that the said proposal was accepted unanimously by the general body. Shri Mathai M. Paikeday, learned Senior Counsel submitted that there is no reference about the resolution dated 6.1.1990 therein and therefore the said decision is A.S.Nos.200 & 228/2002 -36- faulty. We cannot agree. What is involved is the substance of the matter which will show that they have decided to cancel all steps for sale of the property. Therefore, the said argument also cannot hold good. Apart from the same, when the resolution dated 6.1.1990 itself is unsupportable, the appellant's contention on this score also cannot advance his case any further.
For all these reasons, we dismiss both the appeals and the parties are directed to suffer their costs in the appeals.
(T.R.RAMACHANDRAN NAIR, JUDGE) (P.V.ASHA, JUDGE) kav/