Madras High Court
Rabiammal Ahamed vs K.A.Ahamed Maideen on 29 June, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29-06-2012
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
S.A.No.437 of 2008
and
M.P.No.1 of 2008
1.Rabiammal Ahamed
Maideen Educational Trust,
A Public Charitable Trust
represented by its
Secretary and Correspondent,
S.M.Miskeem
2.S.M.Miskeen
3.T.A.Munawardeen : Appellants/Plaintiffs1 to 3
vs.
1.K.A.Ahamed Maideen
Represented by his Power
Agent N.M.A.Noor Maideen
2.V.A.Rabiammal
3.K.A.Najumunnisa
4.K.a.Salamathunisa
5.K.A.Noorunisa
6.K.A.Ismath Sultan Nachia
7.N.M.A.Noor Moideen : Respondents 1 to 7/Defendants
8.Safaiya Munawar : 8th Respondent/4th plaintiff
Prayer : This second appeal is filed under section 100 of the Civil Procedure Code against the judgment and decree, dated 29.02.2008 passed in A.S.No.26 of 2007 on the file of District Judge, Nagapattinam by reversing the judgment and decree in O.S.No.11 of 2006, dated 25.04.2007 on the file of the Subordinate Judge, Thiruvarur.
For Appellant : Mr.T.V.Krishnamachari
Senior counsel
for T.V.Ramanujam
For R1 to R6 : Mr.T.R.Rajagopalan
Senior counsel
for T.R.Rajaraman
J U D G M E N T
The plaintiffs 1 to 3 are the appellants. The plaintiffs filed a suit for declaration that the first plaintiff is a Public Charitable Trust, for declaration that the supplementary and amended Deed of Trust, dated 26.05.2005 executed by the defendants 1 and 2 is illegal, null and void and not binding on the first appellant Trust, for declaration that the Trust Board Meeting held on 04.01.2006 removing the plaintiffs 2 to 4 from the office of the Secretary/Treasurer and as trustees and primary membership of the Board of Trust and appointing the 7th defendant as Secretary/Treasurer is illegal, null and void and not binding on the first appellant Trust and for consequential injunction.
2.The case of the plaintiffs/appellants is that the first plaintiff is a Public Charitable Trust and the Trust came into existence by the execution of a Deed of Trust by the respondents 1 and 2 on 24.08.1998. As per the Trust Deed, the first respondent is the Chairman and the 2nd respondent his wife is the Vice-Chairman and the 2nd plaintiff is the Secretary and the respondents 1 and 2 are permanent residents of Penanag, Malaysia and the Trust was under management of the 2nd appellant and due to illegal advise, the respondents 1 and 2, taking advantage of their position as founders of the Trust and under the guise of the clause 45 of the Trust Deed, executed a Supplementary Deed of Trust, dated 26.05.2005 arrogated to themselves, the power to cancel any resolution passed by the Trust Board and also amended the various clauses of the Trust Deed and by reason of the Supplementary Deed of Trust, the respondents 1 and 2 made several changes in the objects of the Trust and after the execution the illegal Supplementary Deed, the respondents 1 and 2 convened a meeting of the Trust Board on 04.01.2006 and in that meeting, resolutions were passed removing the appellants 2 to 4 from the office of the Secretary, Treasurer and Trustee and appointed the 7th respondent as Secretary of the Trust and the convening of the alleged meeting on 04.01.2006 was against the procedure contemplated under the Trust Deed dated 24.08.1998 and no such meeting was called for and it was only crated for the record and the alleged meeting has no legal force and therefore, the removal of the appellants 2 to 4 from the post of Secretary/Treasurer/Trustee are illegal and null and void and not binding on the first appellant Trust and therefore, prayed for consequential injunction.
3.The 7th respondent filed a written statement and the same was adopted by other respondents and the defence of the 7th respondent was that the suit filed without obtaining leave under section 92 of CPC is not maintainable and therefore, the suit is liable to be dismissed. It is further stated that the suit filed on behalf of the Trust is also not maintainable as the 2nd appellant ceased to be the Secretary and Correspondent of the Trust and therefore, he cannot represent the Trust and on that ground, the suit is not maintainable. It is further contented that there was mismanagement in the affairs of the Trust by the 2nd appellant, taking advantage of the absence of the respondents 1 and 2 and even according to the original Trust Deed, dated 24.08.1998, the respondents 1 and 2 are the founders of the Trust and as per clause 45 of the Trust Deed, they have got powers to amend, add, alter, repeal any of the provisions of the Trust Deed and in exercise of that power and with a view to achieve the objects of the Trust, the respondents 1 and 2 thought it fit to execute the Supplementary Trust Deed and under the Supplementary Trust Deed, they have not changed the objects of the Trust and they have only changed certain procedural aspects as stated in the Trust Deed dated 24.08.1988 and the respondents 1 and 2 are competent to execute the Supplementary Trust Deed and that can not be questioned by the appellants and the meeting of the Trust Board was convened on 04.01.2006 and as per the Supplementary Trust Deed, there is no need to give advance notice and in the meeting held on 04.01.2006, the respondents 1,2,3,5,6 and 7 participated and unanimously agreed to remove the appellants 2 to 4 from the Trusteeship and also from their respective posts and therefore, the same cannot be challenged by the appellants.
4.Further, as per clause 42 of the Trust Deed, dated 24.08.1998, only the Trust Board can authorize any person to act for and on behalf of Trust and admittedly, no resolution was passed to institute a suit by the Trust Board and therefore, the institution of the suit by the first appellant is not maintainable.
5.It is further stated that on 04.01.2006, the meeting was validly convened and in that meeting, a decision was taken to remove the appellants 2 to 4 from the post of Secretary, Treasurer and Trustee and that was done by the Trust Board and the same cannot be challenged by the appellants and the meeting convened on 04.01.2006 was in accordance with the Supplementary Trust Deed and therefore, the appellants are not entitled to the relief prayed for.
6.The trial Court held that the first appellant is a Public Charitable Trust and the Supplementary Trust Deed, dated 26.05.2005 is not valid and binding on the first respondent Trust and the removal of the appellants 2 to 4 from the post of Secretary/Treasurer/Trustee, by resolution, dated 04.01.2006 is also not valid and decreed the suit as prayed for.
7.Aggrieved by the same, the respondents filed the appeal and the First Appellate Court held that the first appellant is a Public Charitable Trust and the suit was filed without obtaining the leave of the Court and therefore, the suit was not maintainable and the defendants 1 and 2 as founders are entitled to amend, add, alter or repeal any of the provisions of the Trust Deed and by virtue of clause 45 of the original Trust Deed and in exercise of that power, they executed a Supplementary Trust Deed and therefore, the Supplementary Trust Deed is also valid and after the removal of the second respondent from the post of Secretary, he cannot represent the Trust and the suit cannot be maintained in the name of the first appellant Trust, as no authorization was given by the Trust Board to institute the suit and the resolution, dated 04.01.2006 was validly convened and in that meeting, the Trustees participated and passed a resolution removing the appellants 2 to 4 from the post of Secretary/Treasurer/Trustee and that was validly passed and the same cannot be questioned and allowed the appeal. Challenging the same, this second appeal is filed.
8.The following substantial questions of law were framed at the time of admission:-
1.Whether the averments as found set out in the plaint would attract the definition of 'Wakf' as contained in Section 3(4) of the Wakf Act, 1995? and whether both the courts below failed to consider the same?
2.Whether the first appellate court wrongly held that the suit was bad for want of obtaining leave to institute the suit under section 92 of CPC in the facts and circumstances of the case as found set out in the plaint itself that the trust is a public charitable Educational Trust?
3.Whether the first appellate court misread the evidence and wrongly interpreted the same and arrived at the conclusion as though there were no irregularities in the convening of the Press Board Meeting and whereby expelling plaintiffs 2 to 4 from the office of the Secretary/Treasury and its Trustees and also from the primary membership of the Board of Trustees and appointing D7 as Secretary/Treasurer?
4.Whether there is any perversity or illegality in the judgment of the first appellate court in setting aside the judgment and decree of the trial court and ultimately dismissing the Original Suit?
9.It is submitted by Mr.T.V.Ramanujan, the learned Senior counsel appearing for the appellants that there is no pleading by either parties that the Trust will come under the term of 'Wakf' as defined under 3(4) of the Wakf Act 1995.
10.He further submitted that the first appellant Trust cannot be brought under the definition of 'Wakf' and further submitted that any Trust created by a Muslim for any secular purpose will not come under the definition of 'Wakf' and relied upon the judgment reported in AIR 1963 Supreme Court 985 in the case of Nawab Zain Yar Jung (since deceased) and others vs. Director of Endowments and another and Vol.76 LW 629 in the case of Kassimiah Charities, Rajagiri, represented by its hereditary trustee Sri. R.E.M.S.Abdul Hamid vs. The Madras State Wakf Board, represented by its Secretary, in support of his contention.
11.Mr.T.R.Rajagopalan, the learned Senior counsel appearing for the respondents 1 to 6 would also concede that there is no pleading with reference to the first substantial question of law and it is not the case of either parties that the first appellant Trust is a 'Wakf' and therefore, there is no need to answer the substantial question of law No.1, as it was not pleaded.
12.I have also gone through the pleadings and evidence and according to me, neither parties have pleaded that the first appellant is a 'Wakf' as per the provisions of 'Wakf' and no finding was also given to the effect by the courts below, nor any arguments were advanced in that aspect.
13.Further, in the judgment reported in AIR 1963 Supreme Court 985 in the case of Nawab Zain Yar Jung (since deceased) and others vs. Director of Endowments and another it has been held as follows:-
Under Muslim law, there is no prohibition against the creation of a trust of the latter kind. Usually, followers of Islam would naturally prefer to dedicate their property to the Almighty and create a wakf in the conventional Mahommedan sense. But that is not to say that the follower of Islam is precluded from creating a public, religious or charitable trust which does not conform to the conventional notion of a wakf and which purports to create the public religious charity in a non-religious secular sense. This position is not in dispute.
14.Similarly in the judgment reported in Vol.76 LW 629 in the case of Kassimiah Charities, Rajagiri, represented by its hereditary trustee Sri. R.E.M.S.Abdul Hamid vs. The Madras State Wakf Board, represented by its Secretary, it has been held as follows:-
In our opinion, therefore, a public utility foundation like a school or college, established by a Muslim should in order to come within the terms of the Act be one exclusively intended for the benefit of the Muslims. Under the Muhammadan Law, it will undoubtedly be a meritorious act to found a school which offers secular education for the benefit of Muslims and non-Muslims. That would be a wakf under the common law. But the statute, certainly for understandable if not for sound reasons, excluded such establishment from the operation of the Act, Unless it is intended by the terms of such foundation, exclusively for the benefit of the Muslims.
15.Admittedly, the first appellant Trust is not meant for Muslim alone and it is for establishing educational institutions for the welfare of women irrespective of caste, religion, creed, colour, language, status and nationality and for establishing grant in aid for maintaining and running Schools, Colleges, Technical Institutions and Training Centers for normal, handicapped and abnormal children and to maintain and to establish the Hostels, Boarding, Schools for children, Schools for physically and mentally handicapped children and therefore, it is meant for all and hence, the Trust will not come under the definition of 'Wakf', as per Wakf Act 1929 and I hold that the substantial question of law No.1 is answered that the first appellant Trust will not come under the definition of 'Walk', as per the provisions of Wakf Act and no pleadings are also made to that effect by both parties before the courts below.
16.In so far the 2nd substantial question of law is concerned, i.e. whether the suit is barred under section 92 of CPC, this issue is hotly contested by both parties.
17.According to the learned Senior counsel appearing for the appellants, though the first appellant Trust is a Public Charitable Trust, the suit was not filed under section 92 CPC for the reliefs as enunciated in that section and the suit was primarily for vindication of the private rights of the plaintiffs 2 to 4 and there was no pleading for vindication of any public rights and no breach of Trust was alleged and no direction of the the court was sought for, for the administration of the Trust and in the absence of any of the pleas and ingredient, it cannot be stated that the suit is barred under section 92 of CPC and therefore, submitted that the suit was not filed under section 92 of CPC and no leave need to be obtained and the suit filed is maintainable.
18.On the other hand, Mr.T.R.Rajagopalan, the learned Senior counsel appearing for the respondents 1 to 6 submitted that having regard to the allegations made in the affidavit and the relief prayed for, the appellants sought for the removal of the 7th respondent from the post of Secretary/Treasurer/Trustee and also challenged their removal from the post of Secretary/Treasurer/Trustee, the reliefs prayed for in the plaint squarely come within the ambit of section 92 of CPC and hence, the suit filed without obtaining the leave is not maintainable and on that ground, the suit is liable to be dismissed and that has been rightly considered by the first appellate court and without obtaining the leave, the suit is not maintainable.
19.Therefore, we will have to see whether the suit is liable to be dismissed for want of leave obtained from the court as per section 92 of CPC.
20.To answer this question, we will have to see whether the suit falls within the ambit of section 92 of CPC as contended by the learned Senior counsel appearing for the respondents 1 to 6.
21.Before going into the facts and pleadings in this case, we shall see what is the law laid down by the Hon'ble Supreme court regarding the nature of suit filed under section 92 of CPC.
22.In the judgment reported in AIR 1957 Andh. Pra. 965 Veeramma vs. Appayya and another, it has been held as follows:-
Section 92 of the Civil Procedure Code does not apply unless the relief sought in the suit is one or other of the reliefs specified in the section. The word further or other relief: in S.92 (j=h) within which the appellant sought to bring this suit,mean relief of the same nature as those contemplated in S.92 (a) to (g). See Abdur Rahim v. Abu Mahommed Barkat Ali, ILR 55 Cal 519: (AIR 1928 PC 16)(A). Section 92, Civil Procedure Code, postulates the existence of a trust of a public charitable nature and deals with the reliefs to which a party as representing the public, may be entitled on that basis.
A suit for a declaration that certain property belong is to a public charity can be brought by persons interested in the charity without the consent of the Advocate-General ILR 55 Cal 519: (AIR 1928 PC 16) (A) Jamaluddin v. Mujtaba Hussain, ILR 25 All 631 at p.635 (B), Loknath vs. Abani Nath, AIR 1941 Cal 68 (C), ubramanya Iyer v. Maya Kone, 1939-2 Mad LJ 920: (AIR 1940 Mad 31) (D). Section 92 has no application where the suit is brought not to vindicate or establish the right of the public in respect of a public trust but to remedy the infringement of an individual right or vindicate a personal or private right of the plaintiff Tirumalai Devasthanam v. Krishnaya ILR (1943) Mad 619: (AIR 1943 Mad 466) (FB) (E), Jawaher v. Akbar Hussain, ILR 7 All 178 (FB) (F). Here the plaintiff, as one of the villagers entitled to use the common village tank, seeks to prevent an unlawful interference with his right by the defendants. the suit is therefore not bad for want of sanction under S.92, Civil Procedure Code.'
23.Both the learned Senior counsels relied upon the judgment reported in AIR 1974 SC 2141: (1974) 2 SCC 695 in the case of Swami Parmatmanand Saraswati and another vs. Ramnk Tripathi and another. In the above judgment, it has been held as follows:-
10.A suit under s. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated cr that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust, the very foundation of a suit under the section would fail, and, oven if all the other ingredients of a suit under s. 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of S. 92 see Shamukhan v. Govinda (1) Tirumalai Devasthanams v. Krishnayya(2). Sugra Bibi v. Hazi Kummu Mia(3) and Mulla : Civil Procedure Code (13th ed.), Voll. 1, p. 4001. A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs are brought by individuals as representatives of the public for vindication of public rights; and in deciding whether a suit falls within s. 92, the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature arc precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the, trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside s. 92.
11.We see no reason why the same principle should not apply, if what the plaintiffs seek to vindicate here is the individual or personal right of Krishnabodhashram to be installed as Shankaracharya of the Math. Where two or more persons interested in a trust bring a suit purporting to be under s. 92, the question whether the suit is to vindicate the personal or individual right of a third person or to assert the right of the public must be decided after taking into account the dominant purpose of the suit in the light of the allegations in the plaint. If, 'on. the allegations in the plaint, it is clear that the purpose of the suit was, to vindicate the individual-right of Krishnabodhashram to be the Shankaracharya, there is no reason to hold that the suit was brought to uphold the right of the beneficiaries of the trusts, merely because the suit was filed by two or more members of the public after obtaining the sanction of the Advocate General and claiming one or more of the reliefs specified in the section. There is no reason to think that whenever a suit is brought by two or more persons under s. 92, the suit is to vindicate the right of the public. As we said, it is the object or the purpose of the suit and not the reliefs that should decide whether it is, care for vindicating the right of the public or the individual right of the plaintiffs or third persons.
14.It is, no doubt, true that it is only the allegations in the plaint that should be looked into in the first instance, to see whether the suit falls within the ambit of S. 92 [see Association of B.D.B. Bagga Singh v. Gurnam Singh (1), Solhan Singh v. Achhar Singh & Others(2) and Radha Krishna & Others v. Lachmi Narain & Others(3) ]. But, if after evidence is taken, it is found that the breach of trust alleged has not been made out and that the prayer for direction of the court is vague and is not based on any solid foundation in facts or reason but is made only with a view to bring the suit under the section, then a suit pur- porting to be brought under s. 92 must be dismissed. This was one of the grounds relied on. by the High Court for holding that the suit was not maintainable under s. 92.
24.In AIR 1975 SC 371 in the case of Charan Singh and another vs. Darshan Singh and others, the Hon'ble Judges followed the judgment of the Hon'ble Supreme Court reported in AIR 1974 SC 2141 [Swami Parmatmanand Saraswati vs. Ramji Tripathi] and further held that clause (h) in section 92(1), namely granting such further or other relief as the nature of the case may require, must be taken in connection with the provisions of clause (a)to (g).
25.In the judgment reported in (2005)6 SCC 641 in the case of Vinayaka Dev, Idagunji and others vs. Shivaram and others, relied upon by the learned Senior counsel appearing for the appellants, the Hon'ble Supreme Court has held that when no public right is involved and the only interest of the plaintiffs is to establish their hereditary personal right, that would not come within the provision of 92 of CPC.
26.In the judgment reported in AIR 2008 SC 1633 in the case of Vidyodaya Trust v. Mohan Prasad R & others, relied upon by the learned Senior counsel appearing for respondents 1 to 6, it has been held that it is not every suit claiming reliefs specified in Section 92, that can be brought under the Section, but only the suits which besides claiming any of the reliefs are brought by individual as representatives of the public for vindication of public rights.
27.In all these decisions, the Hon'ble Supreme Court relied upon by the law laid down by the Hon'ble Supreme Court in the judgment reported in AIR 1974 SC 2141 in the case of Swami Parmatmanand Saraswati and another vs. Ramnk Tripathi. Therefore, we will have to see whether the plaint makes out a case of breach of Trust, whether the suit is for vindication of public rights or private rights and whether the reliefs prayed for can be brought under the ambit of Section 92 of CPC.
28.It is made clear that when a suit is filed to vindicate the private rights, the suit will not come under the ambit of section 92of CPC. Further, as held in the judgment reported in AIR 1974 SC 2141 in the case of Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another, it is not every suit claiming reliefs specified in S.92, that can be brought under the section, but only the suits which besides claiming any of the reliefs, are brought by individuals as representatives of the public for vindication of public rights and for deciding whether the suit falls within section 92 of CPC, the court must go beyond the reliefs and find out the capacity in which the plaintiffs filed the suit and the purpose for which the suit was filed.
29.Further, the Hon'ble Supreme Court in the judgment reported in AIR 2008 SC 1633, clearly held that a suit filed under section 92 CPC pre-supposes the existence of a Public Trust or Religious or Charitable character and when the plaintiffs did not sue to vindicate the right of the Public, but are seeking a declaration of their individual or personal rights or the individual of personal rights of any other person or persons in whom they are interested, section 92 of CPC has no application.
30.In the judgment reported in AIR 1975 SC 371 in the case of Charan Singh and another vs. Darshan Singh and others, it was held that three conditions are necessary to be fulfilled for the application of section 92 of CPC and they are:-
(1)the suit relates to a Public Charitable or Religious Trust;
(2)It is founded on an allegation of a breach of trust and the direction of the Court is required for administration of the trust; and (3)The reliefs are claimed are those which are mentioned in sub-section (1) of Sec.92 of the Code.
31.In this case, the suit relates to a Public Charitable Trust and there is no dispute about the same. But no allegation was made about the breach of Trust and no direction was sought for the administration of the Trust. Though, one of the reliefs prayed for was to remove the 7th respondent from the post of Trustee, that would not make the suit to fall under the provision of section 92 CPC when the essential ingredient, namely allegation of breach of trust and direction was sought for the administration of the Trust are absent, the suit cannot be brought with the ambit of section 92 of CPC.
32.It is also made clear in the judgment reported in AIR 1974 SCC 2141 [Swami Parmatmanand Saraswati and another vs. Ramji Tripathi and another], wherein their Lordships have categorically held that if the allegation of breach of Trust is not substantiated or that the plaintiff has not made out a case for any direction by the court for proper administration of the Trust, the very foundation of a suit under the section would fail, even if all the other ingredients of a suit under section 92 are made out. The prayers in the suit are for declaration that the first appellant is a Public Charitable Educational Trust, for declaration that the supplementary and amended deed of Trust, dated 26.05.2005 is illegal and null and void, for declaration that the meeting held on 04.01.2006 removing the plaintiffs 2 to 4 from the office of the Secretary/Treasurer/Trustee and removing the plaintiffs 2 to 4 from the members of the Board of Trust and appointing the 7th respondent/defendant as member/Secretary as illegal and null and void and for consequential injunction. Therefore, by no stretch of imagination, it can be contended that the appellants 2 to 4 have filed the suit to vindicate the public rights and they only filed the suit to vindicate their personal rights, namely to establish their position as Trustees of the first appellant Trust and for the cancellation of the appointment of the 7th respondent from the post of Secretary/Treasurer in the meeting, dated 04.01.2006. Therefore, having regard to the judgment referred to above and the prayers sought for and in the absence of any allegation regarding the breach of Trust and no direction was sought for the administration of the Trust, the trial court has rightly held that the suit will not come within the scope of section 92 CPC and therefore, there is no need to obtain the leave and without properly appreciating the various judgments of the Hon'ble Supreme Court, the lower appellate court committed a serious error in holding that the suit falls under the ambit of section 92(1) of CPC.
33.As a matter of fact, the lower appellate court committed an error in holding that the suit is not maintainable without the leave of the court after holding that the plaintiffs 2 to 4 have filed the suit for their own personal benefit. Hence, the substantial question of law No.2 is answered in favour of the appellant and I hold that the nature of allegation made in the plaint and the nature of the relief prayed for, would not bring the suit within the scope of section 92 of CPC and therefore, the suit filed by the appellants/plaintiffs is maintainable and there is no need to obtain any leave, as the suit is not filed under section 92 of CPC.
34.The trial court held that the removal of the plaintiffs 2 to 4/appellants 2 to 4 by virtue of the meeting held on 04.01.2006 is illegal and that was set aside by the first appellate court. As a matter of fact, the first appellate court was carried away by clause 45 of the original Trust Deed, dated 24.08.1998 and held that under the Supplementary Deed, dated 26.05.2005 enormous powers are given to the founders in the matter of administration and management of the Trust and no materials have been placed to substantiate that the resolution, dated 04.01.2006 removing the appellants/plaintiffs 2 to 4 from the post of Secretary/Treasurer/Trustee are illegal.
35.According to me, the first appellate court miserably failed to appreciate the power of the founders under the original Trust Deed and the power given to them under the Supplementary Trust Deed. As per clause 11 of the original Trust Deed, dated 24.08.1998, any trustee may be removed from office by majority of the Trustees, in case of misconduct, misbehavior, insolvency, etc. after giving due notice.
36.As per clause 30 of the original Trust Deed, at all the Board meetings of the Trust, three members personally present will form the quorum and no proxy is permitted. As per clause 31 of the original Trust Deed, the Secretary will convene the Trust Board and other meetings and prior notice of at least seven days shall be given. Further, urgent meetings can be convened by Telephone calls or intimating or informing though special messenger.
37.As per clause 36 of the Original Trust Deed, the General Body Meeting of the Trustees shall be convened with at least 14 days notice issued by the Secretary of the Trust and such a meeting must be held at least once in a year. Special General Body Meeting may be convened by the Chairman or on requisition in writing by at least 9 members of the Trust Board in respect of urgent matter for the consideration of which the meeting is to be convened by giving 7 days notice.
38.As per clause 40 of the original Trust Deed, the Chairman of the Trust Board will preside over all the Trustees/General Body Meetings and in the absence of the Chairman, the Vice-Chairman will preside over such meetings. In the absence of both the Chairman and the Vice Chairman, any other member of the Board so nominated by the Chairman in writing, will preside over the meetings. Further, all decisions of the Trust Board shall be by majority votes and the Chairman shall have a casting vote additionally in case of plurality of votes.
39.The above clauses relate to the meeting and the manner in which the meeting shall be called for and conducted. Under the Supplementary and Amended Deed of Trust on 26th May 2005, by virtue of clause 3 of the Supplementary Deed, the Trustees of the Board may appoint a proxy in writing to attend any meeting of the Trust on their behalf and no prior notice thereof is necessary for the Secretary or any other office-bearer convening the meeting concerned. This is against clause 30 of the original Trust Deed, which prohibits the proxy voting in the Trust Board. Further, as per clause 3 of the Supplementary Deed, no prior notice need be given for convening the meeting.
40.Further, clause 7 of the supplementary deed is similar to that of clause 40 of the original Trust Deed and as per the Supplementary Deed, in the absence of Chairman any other person elected as 'Chairman' shall officiate as such for that meeting only. This is contrary to clause 40 of the original Trust Deed, which provides that in the absence of Chairman, the Vice-Chairman will preside over the meeting.
41.Further, clause 8(a) of the Supplementary Deed is also contrary to clause 29 of the original Trust Deed and clause 8(b) is also contrary to clause 30 of the original Trust Deed and under the original Trust Deed, three members shall form the quorum in all Board Meetings and under the Supplementary Deed, one third of the number of members of the Trust subject to a minimum of two shall form the quorum for a meeting of the Board of Trustees. Similarly, as per clause 8(d) of the Supplementary Trust Deed, for passing resolution, there is no need to call for a meeting and resolution can be passed by circular. This is also a deviation from clause 30.
42.Further, as per clause 8(f) and 9 of the Supplementary Trust Deed, any three Trustees may call for an emergency Board meeting after giving at least fifteen days written notice to all the members and as per clause 9 of the Supplementary Trust Deed, fifteen days of the meeting to be held shall be given to and acknowledged by all the members of the Board of Trustees. Whereas as per clause 36 of the original Trust Deed, the General Body Meeting of the Trustees shall be convened with at least 14 days notice issued by the Secretary of the Trust and such a meeting must be held at least once in a year and the Special General Body Meeting may be convened by the Chairman or on requisition in writing by at least 9 members of the Trust Board in respect of urgent matter for a consideration of which the meeting is to be convened by giving 7 days notice. Therefore, a reading of the various clauses in the supplementary Trust Deed, would make it clear that some changes were made in the manner of convening the meeting and the quorum required to validate the meeting and passing of resolution by circular and permitting a proxy.
43.Besides this, there is no change in respect of clause 11 of the original Trust Deed, which states that no Trustees shall be removed from the office by majority of the Trustees without giving due notice and they canbe removed only for the misconduct, misbehavior, insolvency etc. of the Trustees. Therefore, unless prior notice is given to those persons, who are sought to be removed and by giving them opportunity to explain their stand, those persons cannot be removed even in the event of misconduct, misbehavior, insolvency, etc. committed by them. In the absence of any opportunity given to them, a Trustee cannot be removed.
44.Further, even as per the amended Supplementary Trust Deed, any emergency Board Meeting shall be called for after giving 15 days notice by any three Trustees. According to the respondents, the meeting was held on 04.01.2006, resolutions were passed for removing the plaintiffs/appellants 2 to 4 for the post of Secretary/Treasurer/Trustee.
45.Admittedly, no evidence was produced before this court whether any clear 15 days notice, as per the clause 8(f) and 9 of the Supplementary Trust Deed was given by any three Trustees for convening an emergency meeting on 04.01.2006 and as a matter of fact, no notice was given.
46.Further, as per clause 11 of the original Trust Deed, a Trustee may be removed from office by majority of the Trustees, in case of misconduct, misbehavior, insolvency etc. after giving due notice. This clause 11 of the original Trust Deed remains as such and it has not been amended by the Supplementary Trust Deed and therefore, before removing any Trustee, they must be given due notice and they can be removed for the misconduct, misbehavior, insolvency etc.
47.Admittedly, no notice was given to the plaintiffs/appellants 2 to 4 regarding the meeting held on 01.04.2006 or regarding their removal from the post of Secretary/Treasurer/Trustee and therefore, the trial court has rightly held that the meeting held on 04.01.2006 is illegal and the resolution passed in that meeting will not have any effect and therefore, the removal of the plaintiffs/appellants 2 to 4 from the post of Secretary/Treasurer/Trustee is illegal.
48.Further, clause 11 of the Supplementary Trust Deed will not help the respondents, as by that clause, power was given to the Chairman to declare any resolution as null and void, if he is of the opinion that such a resolution is contrary or prejudicial or inconsistent with the aims and objects of the Trust. Therefore, even under section 11 of the Supplementary Trust Deed, he can only set aside the resolution and he has no right to remove the Board of Trustees without giving due notice, as per clause 11 of the original Trust Deed. Hence, the meeting, dated 04.01.2006 was not properly convened, as per the provisions of original as well as the supplementary Deed of Trust and the appellants/plaintiffs 2 to 4 were not given prior notice and as per clause 11, they can be removed only for the misconduct, misbehavior and insolvency, etc. and no such allegation has been made against them and therefore, the meeting convened on 04.01.2006 and the resolution passed in that meeting removing the appellants/plaintiffs 2 to 4 from the post of Secretary/Treasurer/Trustee are illegal and are set aside and answered the substantial question of law No.3 in favour of the appellants.
49.It is the case of the appellants that the founders have no power to execute the Supplementary Trust Deed by Invoking the clause 45 of the original Trust Deed.
50.It is submitted by the learned Senior counsel appearing for the appellants that the first appellant is a Public Charitable Trust and the founders having divested themselves and entrusted the property to the Board of Trustees, cannot retain the power to amend any clause of the Trust and as per clause 24 of the original Trust Deed, no amendment to any clause of the Deed of Trust shall be made without the prior approval of the Commissioner of Income tax having jurisdiction and that clause was inserted, having regard to the fact that the first appellant is a Public Charitable Trust and exemption was obtained under section 83 of the Income Tax Act and without obtaining the prior approval of the Income Tax Commissioner, the Supplementary Trust Deed amending the original Trust Deed is not valid and by virtue of the Supplementary Trust Deed, clause 24 of the original Trust Deed has been deleted and hence, the Supplementary Trust Deed is not valid.
51.I am not able to accept the contention of the learned Senior counsel appearing for the appellants. A reading of clause 28 and clause 45 read with clause 24, in my opinion, would give the founders of the Trust the power to amend the Deed in the manner of management and administration of the Trust and the power under clause 45 will not clothe the founders to amend the object of the Trust. Though, after the execution of the Trust, the founders have divested their rights over the Trust, nevertheless, they can retain the power of management and administration of the Trust and that was reserved under clause 45 of the original Trust Deed and therefore, by virtue of the power given under clause 45, they can only amend, add or alter the clauses relating to management and administration of the Trust and they have no power to change the objects of the Trust. In other-words, they have no power to change the Public Charitable Trust into Private Charitable Trust or Religious Trust. As a matter of fact, under the Supplementary Deed, the founders have only added clauses for the administration of the Trust by making new provisions, which are contrary to the earlier clauses in the original Trust Deed and as per clause 45, they are entitled to pass the Supplementary Trust Deed for the management and administration of the Trust. Hence, I hold that the Supplementary Deed of Trust, dated 20.06.2005 is valid. Nevertheless, having regard to the findings given by me in respect of substantial questions of law Nos.2 and 3, namely that the suit filed by the appellant will not fail and no leave under section 92 CPC is necessary and the meeting convened on 04.01.2006 was illegal and it is against the various clauses of the original Trust Deed as well as supplementary deed and hence, the removal of the appellants/respondents 2 to 4 from the post of Secretary/Treasurer/Trustee is also against clause 11 of the original Trust Deed, I hold that the lower appellate court has not properly appreciated the various clauses in the original as well as the supplementary deed and erred in holding that the removal of appellants 2 to 4 are legal and hence,the 4th substantial question of law is also answered in favour of the appellants.
52.Hence, the second appeal is partly allowed and the suit is partly decreed holding that the plaintiffs are entitled to declaration that the first appellant is a Public Charitable Educational Trust and the Trust meeting, held on 04.01.2006 is illegal and the removal of the plaintiffs 2 to 4 from the office of the Secretary/Treasurer/Trustee and primary membership of the Board of Trust is illegal and not binding on the first appellant and consequently, injunction is granted restraining the first defendant or any body acting on his behalf particularly the 7th defendant from in any manner interfering with the day to day management and administration and control of the aforesaid Trust y the 2nd appellant in accordance with the terms and conditions of the deed of declaration, dated 24.08.1998. The relief of declaration sought for that the supplementary and amended deed of trust deed, dated 26.05.2005 is illegal and null and void is negatived and dismissed. Consequently, connected Miscellaneous Petition is closed. No Costs.
er To
1.The District Judge, Nagapattinam.
2.The Subordinate Judge, Thiruvarur