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TMI Blog2011 (10) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Public Charitable Trust? Facts leading to Civil Appeal No. 6786 of 2003 are this wise 2. One Shri T. Thomas son of Shri Thomas Pappy, of Perambur, Chennai, started a school in Chennai by name 'St. Mary's School' sometime in the year 1970. On 4.4.1975, he executed a deed of declaration of a trust by name 'T. Thomas Educational Trust' for the purpose of running of the school on the terms and conditions mentioned therein. In para 2 of this deed he declared the objects of the trust as follow: 2. The said Trust shall have the following objects namely - a. to run the said St. Mary's School, b. to run other Educational Institutions and Institutions allied to Educational Institutions like Research Institutions. c. to accept donations in any manner from any person or Institutions whether Governmental or quasi Governmental or otherwise, for carrying out the purpose of the Trust. d. to borrow moneys from banks and/or other credit Institutions and/or individuals and/or public bodies and/or other Governmental or quasi-Governmental bodies, on the security of its properties or otherwise, for the purpose of the Trust. e. to lease out or sell or mortgage o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and (iii) Shri Kora K. George, Respondent No. 1 herein, who is husband of the sister of Late T. Thomas. 6. This suit was numbered as Civil Suit No. 601/1987, wherein (i) T. Thomas Educational Trust, (ii) Smt. Elizabeth Thomas, (iii) Smt. Molly Thayil and (iv) Rev. Thomas Mar Osthatheos were joined as the Defendants. The learned Single Judge framed the necessary issues and then after recording evidence decided the suit. Issue Nos. 6 and 7 from amongst them were as follows: 6. Whether the suit falls outside the purview of Section 92 of the Code of Civil Procedure as contended by the second Defendant 7. Whether this Court has no jurisdiction to interfere with the management and with administration of the first administration of the first Defendant Trust under Section 92 Code of Civil Procedure. 7. It was canvassed by Smt. Elizabeth Thomas before the learned single Judge that the concerned trust was a private trust and a Minority Institution. She pointed out that three schools of the institution had obtained declaration of being minority educational institutions. Therefore, it was submitted that the single Judge did not have jurisdiction to entertain the suit under Section 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mary's group of Schools under T. Thomas educational trust, in para 1, it is stated as follows: T. Thomas educational trust was founded by chevalier t. Thomas M.A., Dip in Econ. (London), to promote quality education in North Madras." The above would show that the trust was created wholly for the purpose of imparting education. It is also seen that there is provision for donations from the public. It is further seen that no benefit whatsoever was retained by any member of the family and the beneficiaries are only public. The above would show that it is a public Charitable Trust. 8. The learned Judge however was of the view that the three conditions as laid down by this Court in Bishwanath v. Shri Thakur Radha Ballabhji reported in AIR 1967 SC 1044 had to be satisfied for invoking Section 92 of Code of Civil Procedure viz. that (i) the trust is created for public purpose of a charitable or religious nature. (ii) there was breach of trust as directions of court is necessary in the administration of such a trust; and (iii) the relief claimed is one of the reliefs enumerated therein. The single Judge took the view that a case of breach of trust had not been made out, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trust, but now it was running a college also, and a representation to the Principal of the college on the board of trustees was necessary. The Court was of the view that it was absolutely necessary to fill up the lacunae in the deed of trust which could be done only be framing a scheme therefore. The Court, therefore, passed an order on 20.11.1995 calling upon both the parties to file draft schemes for the consideration of the Court. Smt. Elizabeth Thomas did not file any draft scheme in spite of this specific order. The Court, thereafter, considered the draft scheme filed by Shri Kora K. George, and modified it appropriately and accordingly allowed the appeal by its judgment and order dated 4.12.1995. 10. Smt. Elizabeth Thomas and T. Thomas Educational Trust filed a Civil Appeal before this Court against that judgment and order, which was numbered as Civil Appeal 16578 of 1996. A bench of three Judges of this Court disposed of the said appeal on 27.10.1999 by passing the following order: We are of the opinion that the judgment of the High Court on the legal issues which were raised does not call for any interference but considering the fact that the Appellants had been the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations with respect to mis-appropriation of funds against her. While looking into these allegations, the High Court noted that she had created one trust of her own by name Elizabeth Thomas Trust in October 1997. She had obtained a loan of ₹ 2.50 crores on the security of T. Thomas Education Trust, and diverted that amount to her own trust. The Division Bench had therefore, by an earlier order dated 27.3.2002 held that the assets of the Elizabeth Thomas Trust shall be treated as belonging to the T. Thomas Trust. Smt. Thomas sought the appointment of a religious leader of the Christian community as a trustee for life and as Chairman of the trust. The Division Bench observed in para 16 of its judgment, that such a request cannot be acceded to, and a public trust cannot be by a backdoor method converted into a religious trust. It therefore framed the scheme in its judgment and order dated 5.12.2002. In paragraph 25 it appointed a Board of Trustees consisting of eight persons. This para 25 reads as follows: 25. The first Board of Trustees shall comprise of Justice J. Kanakaraj, former Judge of the Madras High Court, as Chairman, Shri S. Palamalai, I.A.S. (Retd.), as Executiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . IA is rejected. 15. The Appellant thereafter moved a Contempt Petition bearing No. 435 of 2004 and pointed out that in breach of this order dated 16.4.2004, the above executive trustee and Chairman were disposing of few vehicles and furniture of the institution. Thereupon, this Court passed the following order on 6.9.2004: List the Contempt Petition along with the main appeal. The application filed by the applicant for the appointment of Receiver shall be moved before the High Court. We grant permission to the applicant to make such application before the High Court. 16. (i) CMP No. 20476/2003 was allowed by the High Court on 9.3.2005 and the Appellant was joined as a Respondent in O.S.A No. 49 of 1995. Thereafter, the Appellant moved CMP No. 5660/2005 in O.S.A No. 49 of 1995 for appointment of a receiver. He also filed CMP No. 9402 of 2006 seeking modification of the scheme decree passed in O.S.A No. 49 of 1995. The Appellant made various grievances including that some five acres of land of the trust at Madhavaram had been sold at a much lesser price to the prejudice of the trust. The executive trustee and the Chairman denied these allegations, and pointed out that all the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quently, three schools belonging to this trust obtained a certificate of being minority schools under the Tamil Nadu Recognized Private Schools (Regulation) Act, 1973 (Tamil Nadu Act) from a Civil Court which had been left undisturbed in appeal also. All these factors were ignored by the High Court in passing the impugned order. In his submission the High Court should not have accepted the scheme proposed by Justice J. Kankaraj. 19. Shri Subramanian submitted that Article 30(1) of the Constitution of India gives a fundamental right to the minorities to establish and administer educational institutions of their choice, and this right should not be allowed to be diluted. He relied upon a judgment of a Constitution Bench of this Court in State of Kerala v. Very Rev. Mother Provincial reported in 1970 (2) SCC 417 and particularly paragraph 8 thereof. This paragraph reads as follows: 8. Article 30(1) has been construed before by this Court. Without referring to those cases it is sufficient to say that the clause contemplates two rights which are separated in point of time. The first right is the initial right to establish institutions of the minority's choice. Establishment here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment of the Executive Trustee was vitiated. The High Court had not discharged its function under Section 92 of Code of Civil Procedure correctly, and therefore, this Court ought to interfere and set-aside the impugned judgment and order, and if necessary, remand the matter to the High Court for re-consideration. He also drew our attention to some of the allegations of mis-management against the Chairman and corRespondent. 21. Shri M.S. Ganesh, learned senior counsel appearing for the Chairman and the corRespondent of the trust on the other hand submitted that the Appellant was working at cross purposes with the trust, and this fact should not be lost sight of. The Appellant claims to have arranged contributions of lakhs of rupees to the trust when Smt. Elizabeth Thomas was in the management, and has subsequently started claiming those amounts from the present management. On 24.2.2003, he sent a fax message demanding lakhs of rupees from the trust, and when Shri S. Palamalai visited Kottayam, the Appellant threatened him to return the amounts which led the corRespondent to lodge a complaint with the police on 26.2.2003. Smt. Elizabeth Thomas and the Appellant were hand in glo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to mean that even if the educational institution has been established by somebody else, any religious minority would have the right to administer it because, for some reason or other, it might have been administering it before the Constitution came into force. The words "establish and administer" in the article must be read conjunctively and so read it gives the right to the minority to administer an educational institution provided it has been established by it. ...... We are of opinion that nothing in that case justifies the contention raised of behalf of the Petitioners that the minorities would have the right to administer an educational institution even though the institution may not have been established by them. The two words in Article 30(1) must be read together and so read the Article gives this right to the minority to administer institutions established by it. If the educational institution has not been established by a minority it cannot claim the right to administer it under Article 30(1)..... (emphasis supplied) Shri Ganesh submitted that as the proposition states, if an educational institution is established by somebody else, a religious minority doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; [(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;] (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of theinterest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any trust created for public purposes or for directions of the Court for administration of the trust. One of the purposes set out in Sub-section (1) (g) is settling a scheme, Sub-section (b) speaks about a new trustee being appointed, and Sub-section (a) speaks about removing a trustee. Out of the three persons who filed the Civil Suit No. 601 of 1987, Shri D.V.D. Monte was a member of the Board of Trustees nominated by the founder Shri T. Thomas himself. Shri Kora K. George is a brother-in-law of Shri T. Thomas. He has raised funds for buying lands for the institution, and for constructing the buildings of the school. Therefore, although the single Judge held that he could not be said to be a person having interest in the trust, that finding was reversed by the Division Bench in OSA No. 49 of 1995. Dr. Natrajan is a parent of a student of the institution. None of these persons can be criticized as persons lacking good intention for the trust. 26. Sub-section (2) of Section 92 lays down that a suit claiming any of the reliefs specified in Sub-section (1) has to be instituted in conformity with that Sub-section. Such suit having been filed, the Trial Court gave a finding that it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Courts all throughout. The fact that three schools of this trust had obtained a certificate of minority character was canvassed before the single Judge, and in spite of that submission the single judge gave a finding that the trust was not a minority trust. He recognized the secular character of the institution, particularly by referring to Clause 10 of the declaration made by the founder. The specific finding on concerned issues No. 6 and 7 was left undisturbed by a Division Bench of the High Court in appeal and reaffirmed by a bench of three judges of this Court. Smt. Elizabeth did not file any appeal on this finding of the single Judge to the Division Bench of the High Court. This Court has already confirmed that finding. Explanation IV to Section 11 of Code of Civil Procedure clearly lays down that any matter which might and ought to have been made ground of defense or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such latter suit, and a Civil Court cannot try the same issue once again between the same parties or between the parties under whom they were litigating. The same proposition applies to issue estoppel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, that the statement of objects and reasons of the Act states that the act was passed to regulate the service conditions of the teaching and non-teaching staff in private schools and in that context some separate provisions were made for the minority schools. In the present case, though the declaration was claimed under the Tamil Nadu Act, it was not obtained from an authority specifically created for that purpose under the act to give such a status declaration. Therefore, in our understanding these orders cannot be used for determining the character of the trust. It is also relevant to note that these orders were obtained after the demise of the founder and not during his life time. 30. With respect to an outsider coming in the management, it is to be seen that the founder had not designated any of the persons on the board by their religion. Thus, he nominated all the persons in their ex-officio capacity as follows:(a) Principal of the school (ex-officio), (b) Headmaster/Headmistress, (c) Warden of the Hostel (ex-officio), (d) Member elected by the parent association, (e) Member elected from the staff council, and (f) Three persons having high standard in the education field n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach of the founder is clearly seen to be a secular approach and he did not create the trust with any restricted benefits for a religious community. Merely because he belongs to a particular faith, the persons belonging to that faith cannot claim exclusive right to administer the trust. The establishment and administration must be both by and for a minority which is not so in the present case. Similarly, it is material to note as observed in sub para (ii) and (iii) of para 19 in Malankara Syrian Catholic College (supra), the right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis-`-vis the majority. The right to establish and administer educational institution does not include the right to maladminister. This being the position in the present case, there is no occasion for us to apply the propositions in para 63 (6) of All Saints' High School judgment (supra) or the one in the case of MD. Ismael (supra). 33. Having seen the scenario and the legal position, in the facts and circumstances of the present case, in our view there was no error in the impugned judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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