Madras High Court
S.R Trust Rep.By Its Trustee vs S.Ramesh ... 1St on 24 September, 2018
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation : 24.09.2018
Date of Pronouncement : 03.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRP(MD)No.1795 of 2018 (PD)
and
CMP(MD)No.7843 of 2018
S.R Trust rep.by its Trustee
S.R Trust, Meenakshi Mission Hospital
and Research Centre, Melur Road,
Madurai. ...1st Petitioner/1st defendant /
Petitioner
Vs.
1.S.Ramesh ... 1st Respondent / Plaintiff
1st Respondent
2.Dr.N.Sethuraman ... 2nd respondent / 2nd defendant
2nd respondent
3.Dr.Rajam Sethuraman ... 2nd Petitioner / 3rd defendant
3rd respondent
4.Dr.Gurusankar ...3rd petitioner / 4th defendant
4th respondent
5.S.Ragunathan ...4th petitioner / 5th defendant
5th respondent
http://www.judis.nic.in
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PRAYER : Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decreetal order passed by
the Principal Sub Court, Madurai dated 31.07.2018 in I.A No.269 of
2018 in O.S No.320 of 2011.
For Petitioner : Mr.K.Subramanian, Senior Counsel
for K.Prabhakar
For Respondents : Mr.T.Lajapathi Roy for R1
Mr.S.Ramesh for R2
R3 to R5 – No appearance
ORDER
The first defendant in O.S No.320 of 2011 on the file of the Principal Sub Court, madurai is the revision petitioner herein. The said suit was instituted by the first respondent herein. The matter pertains to the affairs of a registered Trust known as SR Trust which is running the well known Meenakshi Mission Hospital, Madurai. The case of the plaintiff is that the suit Trust is a public charitable Trust in which he is the lifetime trustee. The plaintiff S.Ramesh and the fourth respondent herein Dr.Gurusankar and Dr.Brathiba are the children of the second defendant Dr.N.Sethuraman and the third defendant namely Rajam Sethuraman. Dr.Brathibha filed a suit in O.S No.224 of 2010 on the file of the Principal District Court, http://www.judis.nic.in 3 Madurai. The first respondent herein S.Ramesh filed a “submitted decree memo” in the said suit on 25.01.2011. This led to certain serious difference of opinion between the first respondent herein on the one hand and the other trustees. On 17.02.2011, a meeting of the Board of Trustees was convened and a resolution was passed for removal of the plaintiff S.Ramesh. The plaintiff alleges that in the said board meeting, the second defendant Dr.N.Sethuraman was not present and that the so called meeting held on 17.02.2011 and the removal of the plaintiff as a trustee of SR Trust is illegal, null and avoid. The plaintiff has also sought a decree for permanent injunction for restraining the defendants from preventing him from discharging his duties as a trustee and the Director of Board of directors which position he held prior to 17.02.2011.
2.In the said suit, the defendants 1, 3 to 5 filed I.A No.269 of 2018 for striking off the plaint in O.S No.320 of 2011 on the file of the Principal Sub Court, Madurai. The said I.A came to be dismissed by the impugned order dated 31.07.2018. Questioning the same, this civil revision petition has been filed.
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3.Heard the learned Senior Counsel appearing for the civil revision petitioner and the learned counsel appearing for the first respondent and the learned counsel appearing for the second respondent herein.
4.The learned Senior Counsel opened his submissions by pointing out that the plaintiff Thiru.S.Ramesh was convicted for the offences under Sections 447, 427 and 294(b) of IPC by the learned Judicial Magistrate, Melur in CC No.58 of 2012 on 03.01.2014. It is true that an appeal has been filed questioning the said Judgment. But then, the appellate court has only suspended the sentence and the conviction of the plaintiff still operates. The learned Senior Counsel would emphatically contend that a convicted person cannot be appointed or act as a Trustee of a public trust. This is based on common law principles and is a matter of public policy. The civil courts is having inherent jurisdiction under Section 151 of CPC to pass orders so as to meet the ends of justice. Since this event occurred after the filing of the suit, the revision petitioner was entitled to bring it to the notice of the trial court and pray for striking off the http://www.judis.nic.in 5 plaint itself. The suit has been instituted in the capacity of the trustee. Since a convicted person cannot act as a trustee, the suit itself is to struck off.
5.The learned Senior Counsel for the petitioner pointed out that the Code of Civil Procedure is not exhaustive. He referred to the decisions of the Hon'ble Supreme Court reported in AIR 1962 SC 527 and AIR 1966 SC 1899 in support of his submissions. The learned Senior Counsel also relied on to the decisions reported in (2004) 11 SCC 168 (Shipping Corporation of India vs. Machado Brothers and others) and (1975) 1 SCC 770 (Pasupuleti Venkateswarlu vs The Motor & General Traders). The sheet anchor of the revision petitioner's contention rests on Article 372 of the Constitution of India. The said provision provides for continuation of all laws that were in force before the commencement of the Constitution, till they are altered or repealed or amended. The learned Senior Counsel submitted that common law provided for removal of a trustee who committed a criminal offence. Since this position prevailed on the date of commencement of the Constitution of India, it should be http://www.judis.nic.in 6 deemed to be a part of indian law. The learned Senior counsel placed reliance on the decision of Chan.Div. of the English Court in the case of In re DANSON dated 04.08.1899.
6.With regard to the scope of Article 372 particularly the interpretation of the expression “laws in force” the learned Senior Counsel referred to the decisions of the Hon'ble Supreme Court reported in AIR 1964 SC 207(S.I.Corporation (P) Ltd. v. Secretary, Board of Revenue) and AIR 1967 SC 997(Superintendent & legal Remembrancer State of West Bengal vsl Corporation of Calcutta). The learned Senior Counsel was at considerable pains to point out that the acts of the plaintiff involve moral turpitude. Elaborate written submissions have also been filed. He also pointed out that a contempt petition is pending against the plaintiff and his sister Dr.S.Brathibha for violating the undertaking given before the appellate court and that unless they purged themselves of contempt, there is no prospect of their appeal being heard in the near future. In these circumstances, according to the learned Senior Counsel, there is no purpose in keeping the suit proceedings alive. He faulted http://www.judis.nic.in 7 the learned Trial Judge for not considering the contentions raised by the revision petitioner.
7.The learned counsel appearing for the plaintiff/first respondent responded to the contentions raised by the learned Senior Counsel appearing for the revision petitioner. The first respondent also filed notes and submissions.
8.I carefully considered the rival contentions. The issue that arises for consideration is this “Whether the plaintiff Thiru.S.Ramesh is disqualified to act as a trustee in view of his having been convicted for the offences under Sections 447, 427 and 294(b) IPC. It is not disputed that the terms of the trust deed of SR Trust do not provide for disqualification on this ground. Thus, the answer to the question formulated above cannot be found in the terms of the trust deed. The suit trust being a public charitable trust is also not governed by the provisions of Indian Trusts Act, 1882. There is no statutory disqualification as such. That is why, the revision petitioner invokes common law and Article 372 of the Constitution of India. Article http://www.judis.nic.in 8 372(1) of the Constitution of India reads as under :
“372.Continuance in force of existing laws and their adaptation:- (1)Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.” “Explanation I-. The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.”
9.While in Article 372, the expression employed is “laws in force”, in Article 13, the expression “law in force' is used. The inclusive definition found in Article 13(3)(b) and the one found in explanation (1) in Article 372 of the Constitution of India are identical. As rightly contended by the learned Senior Counsel appearing for the http://www.judis.nic.in 9 revision petitioner, this expression “law in force' includes not only statutory law but also customs or usage having the force of law and as such it must be interpreted as including the common law of England which was adopted as the law of this country before the Constitution came into force. The rule of interpretation of statutes enunciated by privy council amounted to law in force and as such it continued to be in force even before the Constitution was adopted vide AIR 1965 SC 1061 (Builders Supply Corpn. vs. Union of India) Of course, they would continue until altered or repealed or amended by a competent Legislature or other competent authority. Now, it must be seen if common law really provided for disqualification of a trustee as claimed by the revision petitioner. The learned Senior Counsel for the petitioner refers to the order dated 04.08.1899 passed by the Chan.Division of the English Court which reads as under :
“The court has jurisdiction on an application by originating summons to make an order for the removal from the trust of a trustee who has been convicted of felony, but who is unwilling to retire.” http://www.judis.nic.in 10
10.Now what is to be seen is whether the aforesaid cryptic order of the Chan.Division of the English Court can be said to be enshrining the common law principle as claimed by the revision petitioner. The expression “common law” refers to the body of law derived from judicial decisions rather than from statutes or constitutions (vide Black's Law Dictionary, 8th Edition).
11.As rightly pointed out by the learned counsel appearing for the plaintiff/first respondent herein, the aforesaid order itself refers to a statutory provision, namely, Section 25 of the Trustee Act, 1893. It was an Act to consolidate the enactments relating to trustees. Section 25 (1) of the Trustee Act reads as follows :
“25(1)-.The High Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order for the appointment of a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee. In particular and without prejudice to the http://www.judis.nic.in 11 generality of the foregoing provision, the Court may make an order for the appointment of a new trustee in substitution for a trustee who is convicted of felony, or is a bankrupt.”
12.The said Act was later repealed by the Trustee Act, 1925. Of course, there is a corresponding statutory provision, namely, Section 43 in the 1925 Act also. But then, the point to note is that the decision “In re DANSON” flows from an express statutory provision namely Section 25 of the Trustee Act, 1893. The said Act was repealed in 1925. Therefore, a decision that is resting on a repealed statutory provision cannot be said to be constitute common law, let alone a “law in force” at the commencement of the Constitution of India.
13.This conclusion should be more than sufficient to dismiss this civil revision petition. But I cannot help making some more observations. The suit was instituted way back in the year 2011. The defendants which includes the revision petitioner filed CRP(PD) (MD) No.822 of 2011 under Article 227 of the Constitution of India for http://www.judis.nic.in 12 striking off the suit in O.S No.320 of 2011. By order dated 17.08.2011, the civil revision petition was allowed and the suit in O.S No.320 of 2011 along with I.A No.378 of 2011 then pending on the file of the First Additional Sub Court, Madurai was struck off. The first respondent herein filed Civil Appeal No.10559 of 2014 (Arising out of S.L.P(C) No.9831 of 2013) questioning the said order. The Hon'ble Supreme Court by order dated 25.11.2014 set aside the same and directed that the suit shall be restored to file and adjudicated on merits. The judgment of conviction against the plaintiff herein was passed on 03.01.2014 during the pendency of the aforesaid civil appeal. The said civil appeal was disposed of along with SLP (Civil) No.9688 of 2012. In the paper book filed in the said SLP, the judgment of conviction in CC No.58 of 2012 on the file of the learned Judicial Magistrate, Melur was placed on record.
14.The learned counsel appearing for the writ petitioner would contend that this issue as to disqualification was not the subject matter of appeal before the Hon'ble Supreme Court. But, the fact remains that this point was very much available to be advanced the http://www.judis.nic.in 13 revision petitioner before the Hon'ble Supreme Court. When the Hon'ble Supreme court had specifically directed that the suit is to be adjudicated on merits, it would not be appropriate to short circuit the process by seeking to strike off the plaint itself.
15.There is one other consideration. The revision petitioner contends that conviction for the offences under Sections 447, 427 and 294(b) IPC should operate as a disqualification for a trustee of a public charitable trust to continue in office. The terms of the trust deed in this case do not provide for such a disqualification. There is no express statutory provision either. This court should not tread further and create new grounds of disqualification. I have already found that there is no common law principle providing for such a disqualification as claimed by the revision petitioner. When the legislative enactments are silent, when the terms of the trust deed do not provide for it, judicial innovation cannot give rise to such a ground of disqualification.
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16.This civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.
03.01.2019 Index : Yes / No Internet : Yes / No Skm To The Principal Sub Court, Madurai http://www.judis.nic.in 15 G.R.SWAMINATHAN, J.
Skm CRP(MD)No.1795 of 2018 (PD) and CMP(MD)No.7843 of 2018 03.01.2019 http://www.judis.nic.in