Delhi District Court
Darshan Trust vs The Sub- Registrar Iii on 27 February, 2016
IN THE COURT OF MS. VINEETA GOYAL, ADDITIONAL DISTRICT JUDGE - 01, PATIALA HOUSE COURTS, NEW DELHI DISTRICT, NEW DELHI Suit No. 322/13 Unique ID no. 02403C122842013 1. Darshan Trust A Public Charitable Trust, Constituted under the Indian Trust Act, 1882 and having its registered office At A-34, Defence Colony, New Delhi And also having its office at 50, Koregaon Park Pune- 411001, Maharashtra 2. Anand Kumar Awasthi S/o. Sh. Dindayal Awasthi Trustee of the Darshan Trust Residing at 50, Koregaon Park Pune- 411001, Maharashtra 3.Vidya Khubchandani D/o. Sh. Ramchand Khubchandani Trustee of the Darshan Trust Residing at 4, Koregaon Park Pune- 411001, Maharashtra ......... Plaintiffs Versus The Sub- Registrar III 4/7, Asaf Ali Road, New Delhi 110 006 ........ Defendant [Proforma] Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 1 of 13 Suit presented on : 13.09.2013 Arguments concluded on : 27.02.2016 Judgment pronounced on : 27.02.2016 Appearance : Ms. Ramni Taneja, Counsel for plaintiff. JUDGMENT
1 The plaintiffs have filed a suit under Section 26 (1) (a) of the Specific Relief Act, 1963 r/w section 151 of Code of Civil Procedure, 1908 seeking a rectification of the Deed of Trust dt. 09.06.1987 of plaintiff no. 1 i.e Darshan Trust after arraying Sub RegistrarIII, New Delhi as proforma Defendant. 2 Brief facts of the case are that the Trust was run in the name and style of Darshan Trust . The said Trust was registered with Sub RegistrarIII having its office at 4/7, Asaf Ali Road, New Delhi. Sh. Khushi Ram Walia was Settlor and Sh. Nirmal Chandna and Smt. Santosh Kumari Nanda were the Trustees at the time of formation of the said Trust. After the death of Settlor and resignation of aforesaid Trustees, plaintiff no. 2 and 3 are Trustee of the said Trust. The aim and object of the said Trust were as per clause were charitable in nature.
Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 2 of 13 2.1 It is averred in the present suit that the plaintiffs are seeking rectification of Deed of Trust. It is alleged that during a meeting of Board of Trustees held in Puna on 01.07.2013, it was felt by the plaintiffs that it was necessary and imperative for the advancement of noble object of the said trust, there ought to be a power of "Amalgamation" inserted in the Deed of Trust. It is further alleged that it was also realized in the said meeting that Deed of Trust dt. 09.06.1987 did not express the real intention of the parties at the time of its formation ie. there had been an inadvertent omission of power of "amalgamation" in the Deed of Trust. Accordingly, the plaintiffs passed the following resolution unanimously during their meeting on 01.07.2013 which was made subject to the approval of this court : " To amalgamate the Darshan Trust with any other Public Charitable Trust or Association or Society in India or any other similar institution in India having objects which are similar to the objects of Darshan Trust."
2.2 It is further averred that the present suit is within the period of limitation and within the territorial jurisdiction of this court and on aforesaid grounds, a prayer was made that decree for rectification of Deed of Trust dt. 09.06.1987 be passed by inserting Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 3 of 13 the power of Amalgamation as mentioned above. 3 In order to prove its case, plaintiff examine Sh. Anand Kumar Awasthi as PW 1 . He stepped in witness box and has tendered evidence by way of affidavit Ex.PW1/1. This witness has proved the copy of Resolution dated 01.07.2013 Mark A, Adhar Card Ex.PW1/2 (OSR), Settlement Deed of plaintiff's Trust Mark B Minutes of Meeting of the Board of Trustees of plaintiff's Trust held on 31.10.1996 at Delhi Mark C, Minutes of Meeting of the Board of Trustees of plaintiff's Trust held on 07.11.1995 at Delhi Mark D, list of Trustees of plaintiff's Trust Mark E, Statement of account of plaintiff's Trust for the period 10.11.2010 to 31.08.2013 Ex.PW1/7, PAN card issued in the name of the plaintiff's Trust Ex.PW1/8 (OSR) and Registration Certificate of plaintiff's Trust Mark F. 3.1 Plaintiff has also examined Sh. S K Sharma, LDC, SubRegistrarIII, Asaf Ali road, New Delhi as PW 2. He has proved the certified copy of Settlement Deed (Deed of Trust) dt. 09.06.1987 of plaintiff no. 1 as Ex. PW 2/1.
4 I have heard arguments advanced by Ld. counsel for plaintiffs and gone through material available on record. Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 4 of 13 5 Section 26 (1) (a) of Specific Relief Act reads as under:
"When instrument may be rectified.--
1. When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing [not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies] does not express their real intention, then--
(a) either party or his representative in interest may institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.
2. If, in any suit in which a contract or other instrument is sought to be rectified under subsection (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
3. A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.
4. No relief for the rectification of an instrument shall be granted to any party under this section unless it Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 5 of 13 has been specifically claimed: Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim. 6 It is clear from abovesaid that the Instrument can be rectified in case, where the court finds that the Instrument does not express real intention of parties on account of fraud and mutual mistake.
7 Before proceeding further, it is necessary to understand the meaning of "Amalgamation". In general, the definition of amalgamation can be stated as follows:
" Amalgamation is a union of two or more entity meet with an intention to form a new entity."
In terms of finance, the definition of amalgamation can be given as under:
"Amalgamation is an agreement (deal) between two or more entity to consolidate (strengthen) their business activities by establishing a new entity having a sepearate legal existence."
After amalgamation , two or more entities dissolve and lose their independent legal status, hence no longer exist any more. Thus amalgamation results in formation of new (separate ) Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 6 of 13 entity.
8 Now applying the same principle to a Trust, we must understand that Trust is created by an Instrument authored by a Settlor indicating his / her desire and intention in the form of object of the Trust. The settlor lays down the parameters and boundaries of Trust in all sense whosoever assumes responsibility under such Trust cannot be allowed to question the thinking of the author. No mistake can be read into his/ her intention by interpreting the Trust Deed. It is the contention of the plaintiffs that the Power of amalgamation was needed to expand the activities of Trust and to enable it to serve the cause of public charity more meaningfully and to contribute to the public good. It is urged by the plaintiffs that the Trust Deed be rectified and to allow the trust to a amalgamation with any Public Charitable Trust or Association or Society in India or any other similar Institution in India having similar objects. 9 Let us now see the nature and contents of Trust Deed which are as follows:
1. The Trustees shall have power and shall be entitled to collect recover and receive dividends, rents and profits and other income for the Trust Fund (hereinafter referred to as "the Trust income") and to pay thereout all taxes, rates , assessments, expenses and outgoings for collection in respect thereof and for the management of Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 7 of 13 the Trust Estate and for administering and carrying out the Trusts hereof.
2. The Trustees shall be entitled from time to time to accept from any person or persons desiring to make gifts or donations upon the trusts and subject to the terms, provisions and powers and conditions contained herein, such money or properties as the Donors desire from time to time to give on the aforesaid Trusts and on the terms and conditions herein contained.
3. The Trust hereby declared shall be designated as "DARSHAN TRUST.
4. The registered office of the Trust shall be at 10067 , Rohit house, C/o. Renukay Sound Studios, 3Tolstoy Marg, New Delhi 01.
5. The Trusts hereby declared shall be irrevocable.
6. It shall be lawful for the Trustees at any time and from time to time to borrow money as well as to sell, mortgage , assign , transfer, demise or let on lease for any period however long or otherwise disposal of and deal with the Trust Fund including any immovable properties comprised therein or any part thereof either by public auction or by private contract and on such terms and conditions as they the Trustees think fit with liberty to the Trustees to buy in rescind or vary any contracts for sale, mortgage, assignment, lease or other disposition as aforesaid and resell the same or enter into a fresh contract for transfer, assignment, lease or other dispositions without being answerable for any loss occasioned thereby and with power also to execute a necessary assignments, conveyance, mortgages, transfers , assurances for the same and to give receipts and discharges for the consideration moneys and all the moneys. All moneys raising from such sale, mortgage, transfer or other disposition shall be deemed to be part of the trust Estate and all be dealt with accordingly.Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 8 of 13
7. The receipt of the Trustees for the purchase money of any property hereby directed or authorized to be sold, of from any other money, stocks, funds, shares , securities and investments paid, delivered or transferred to them or him by virtue of these presents or in the execution of the Trusts or powers thereof shall effectually discharge the person or persons paying , delivering or transferring the same there from any / or from being bound to see the application or being answerable for the loss or mis application thereof.
8. The Trustees for the time being of these presents shall be respectively chargeable any for such moneys and securities as they shall respectively actually receive, notwithstanding their signing any receipt for the same of conformity and shall respectively be answerable and responsible only for their own respective acts, receipts, omissions, neglect and defaults and not for those of each other, nor for that of any banker, broker, auctioneer or other person with whom or into whose hands any trust moneys or securities shall be deposited or come, nor for the insufficiency in tittle or deficiency in value of any investments nor any other loss, unless the same shall happen though their own willful default respectively AND ALSO that the Trustees or Trustee for the time being may reimburse themselves, herself or himself or pay and discharge out of the Trust Estate all expenses incurred in or about the execution of the Trusts or powers under these presents.
9. The Trustees for the time being of these presents shall have full power to compromise or compound all actions suits and other proceedings and all differences and demands and to refer any such difference or demand to arbitration and to adjust settle and approve all accounts relating to the trust estate and to execute releases and to do all other things relating thereto without being answerable for any loss occasioned thereby.
10. The Trustees shall be entitled to employ any person or persons and pay them remuneration for effective Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 9 of 13 management and implementation of the Trust, including expert and technically qualified or experienced personnel.
11. If and so often as any of the Trustees hereunder appointed or any future Trustees or Trustee of these presents shall die or shall leave India for more than one year or shall desire to retire from or become incapable to act in the trust of these presents or otherwise, it shall be lawful for the surviving or continuing trustees for the time being of these presents for the purpose to act in the execution of this power or for the proving executors or administrators of the last surviving Trustees to appoint a new Trustee or Trustees in place of the Trustee or Trustees so dying or leaving India or desiring to retire from the Trust or otherwise to appoint new or additional Trustee or Trustees and upon every such appointment the number of Trustees may be argumented or reduced and upon every such appointment the Trust Estate shall be transferred so that the same be vested in the Trustee or Trustees for the time being of these presents AND Trustee or Trustees so appointed as aforesaid may as well before or after such transfer of the Trust Estate , act or assist in the Execution of the Trusts and powers of these presents as fully effectually as if he had been hereby appointed as Trustee PROVIDED THAT the number of Trustees of these presents shall not be less than that of two or more than seven PROVIDED HOWEVER AND IT IS HEREBY AGREED AND DECLARED for the sake of clarification that the present Trustees who have executed these payments shall remain Trustees who have executed these presents shall remain Trustees during their lieftime or until such time as they retire or become disqualified to act as such.
12. Any Trustee may at any time resign by giving a month's notice to his coTrustees and upon expiry of such period, he shall be deemed to have vacated his office.
13. The Trustees shall have the right to make necessary resolutions by circulars instead of by meetings and any Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 10 of 13 resolutions as agreed to by a majority of the Trustees shall be as valid and effectual as a resolution of Trustees at a meeting duly convened.
14. The Trustees shall determine all questions and matters of doubt in the execution of the Trusts, including the meaning and construction of any of the articles and provisions herein contained and do all acts and execute all the trusts, power and authorities appurtaining to these presents unanimously, and in case of disagreement, by majority , each Trustee shall having one vote only. The Trustees shall be at liberty to make rules or byelaws for the due administration of the Trust provided such rules and byelaws and not inconsistent with what is herein contained
15. For the purpose purpose mentioned above or any of them, the Trustees shall at liberty to enter into ,sign, execute and deliver all such tracts, deeds, assurances and writings / as they made deem necessary expedient.
The Trustees shall also be entitled to incur all legitimate expenses which they consider to be beneficial to and in the interest of the Trust.
16. Trustees shall be entitled to invest the trust Fund or such other funds of the Trust as are not immediately required, in any investments and the Trustees shall also be at liberty to invest the Trust fund or any part thereof on the mortgage of any immovable property situated in any part of the Republic of India (either of freehold or household or any other tenure) and the Trustees shall also be entitle to purchase vacant land of any tenure and to construct buildings and other structure thereon as the Trustees may consider necessary and the interest of the Trust and they shall also be entitled to pull and demolish to rebuild any buildings or erection as they may consider necessary and in the interests of the Trust AND the Trustees will have power to alter, very or transfer the investments from time to time in such manner as to Trustees may think fit and proper in the interests of the Trust.
Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 11 of 13
17. Trustees shall be entitled to obtain tenancies and / or take on lease any premises and / or properties as they may consider property, it also give them on leave and licence and receive deposits and / or advance compensation.
18. Complete accounts of the Trusts shall be properly kept in New Delhi and at such other place or places as the Trustees may from time to decide and all the accounts , records and documents of the Trust shall be maintained at the office of the Trust. The accounts of the trust will be duly audited.
19. The Trustees shall be entitled to open and maintain bank account / accounts as they may consider necessary or proper and such account / accounts may be operated on the signatures of any two of he Trustees."
10 It appears from above that in the Deed of Settlement the author has elaborately provided powers, provisions, agreements and declarations etc. and if the Settlor/ author had an intention to permit amalgamation with the trust of similar object, he would have provided for the same. If the author of Trust has no intention to allow such amalgamation, that is why no provision exist for he same. Merely because at this point of time, the plaintiffs feel desire of such clause, it cannot be allowed under the garb of mistake of the author. The legal connotation of amalgamation is very vast and it acts as merger and diminishing the original entity. In this case, by amalgamation, the original trust will either get Suit no. 322/13 Darshan Trust & Ors. Vs Sub Registrar III Page 12 of 13 extinguish or will be recreated. There is no provision to allow such a relief because it amounts to doing something indirectly which could not be done directly. There is no scope for reading any mistake into the Deed of Trust.
11 In view of the above discussion, there is nothing on record which shows that there has been a mutual mistake of the parties to the deed of trust at the time it was formed. There is no merits in the suit and accordingly the suit is dismissed. Parties are left to bear their own costs.
Pronounced in open Court
on 27.02.2016 (Vineeta Goyal)
Additional District Judge01,
NDD/PHC/New Delhi/ 27.02.2016
Suit no. 322/13
Darshan Trust & Ors. Vs Sub Registrar III Page 13 of 13