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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 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.

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 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.

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 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.

A.S.Nos.200 & 228/2002

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 that eligible voters were omitted from the voters list and ineligible voters were included. No hearing was conducted by P.W.5.