TMI Blog2016 (9) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution dated 10.12.1994 (as mentioned in amended deed registered on 30.01.1995) and by this amendment i.e. of 1994 name of Minnie Narayan was deleted, and it was mentioned that after the life time of B.S. Narayan, his senior most lineal descendant or a member of his family or his wife was to succeed, and if mode of succession fails, then powers of Donor Trustee were to be exercised by the State Government. There is concurrent finding of fact of the courts below that Ragini Narayan was the wife of B.S. Narayan Donor Trustee, at the time of his death, as such it cannot be said that mode of succession mentioned in para (IV)(i) failed. Whether it is amendment of 1978 or 1995 the expression "or his wife" is there. In our opinion the words-’or his wife' in the amendment of 1978 to which the appellants admittedly approved refer to wife of the Donor Trustee. Same expression is retained in the 30.01.1995 amendment. The amendment of 1978 was, admittedly, approved by the State of Karnataka. Insofar as the amendment of 1994 is concerned, we have already held that by virtue of Ex.A-7 dated 13.8.1995, the recital contained therein and in view of the letter of the State Government dated 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pleaded that the plaintiff continued to live as his wife till his death on 23.08.1995. It is further pleaded that vide Trust Deed dated 02.12.1957, Dharmaprakasha Rajakaryasakta B.M. Sreenivasaiah Educational Trust was created by B.S. Narayan, his mother and step mother by transferring properties worth L 5000 crores. The Council of Trustees consisted of five members (trustees) with B.S. Narayan as a Donor Trustee. In terms of the Trust Deed B.S. Narayan and all his successors had the right to appoint three of the trustees while the remaining one trustee was to be appointed/nominated by the Government of Karnataka (defendant No 2/appellant herein). 4. The Council of Trustees in the presence of the then Chief Minister, in its meeting dated 12.10.1978 resolved to amend the Trust Deed allowing B.S. Narayan to nominate any person as Donor Trustee for life time and also provided for succession to the Donor Trustee. The State Government (appellant) approved said amendment vide communication dated 25.09.1979 and supplementary Trust Deed was executed on 25.06.1981, but the amendment regarding succession to the Donor Trusteeship was not carried out. 5. Dispute starts from the year 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime. Consequently the suit was filed. 8. Apart from the appellants, Respondent No. 2 (defendant No. 3 before the civil court) contested the suit. He filed his separate written statement. The pleas taken by him are in substance the same as raised by the appellants (defendant Nos. 1 and 2). It is pleaded by the defendants that under proviso to clause VI (xii) of the Trust Deed approval of the State Government was necessary for any amendment in the Trust Deed. It is further pleaded that as per original clause (IV)(1) B.S. Narayan, the designated original Donor Trustee was to hold the office during his life time, where after his senior most lineal descendants were to succeed as Donor Trustee. And in absence of any lineal descendant trustee, the nominee of State Government was to act as Donor Trustee. The case of the defendants is that the State Government had given its approval to the amendment dated 12.10.1978 in respect of para IV(iv) of the Trust Deed which was incorporated in the supplementary Trust Deed dated 25.06.1981. It is further stated that insofar as proposed amendment to clause (IV)(1) is concerned, since B.S. Narayan himself withheld nomination of his first wife Minnie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be donor (1) within the meaning of the Deed. .... .... .... .... .... .... ... VI(xii) Notwithstanding anything contained in these presents The Trustees shall have power to alter, amend or to add to any of the clauses of this document consistent with the objects and purposes of The Trust . The Trustees shall have power to negotiate, conclude and effectuate such agreements with Government State or Union, local bodies or other authorities or bodies for purposes of obtaining financial and/or technical aid in any form as they deem fit on such conditions as may appear fit to them, for furtherance of the purposes of the institutions created under The Trust and for that purpose shall have power to include or to co-opt further trustee or trustees; to cede or curtail or transfer all or any such power to any Government of body, as may be found fit and proper and to effect such alterations in the clauses of this deed, not inconsistent with the objects and purposes of The Trust as in their opinion may appear necessary and desirable. Provided that any resolution of The Trustees touching the alteration of this deed or amending of any of its clauses shall not be operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of Karnataka. (emphasis supplied) 12. It is clear from the record that in the year 1957 B.S. Narayan was a bachelor. Later he got married to Minnie Narayan before 1978 amendment, and divorced her in 1982. There is concurrent finding of fact that B.S. Narayan got remarried in 1984 to plaintiff Ragini Narayan. It is also relevant to mention here, that there is no dispute that amendments mooted by B.S. Narayan in 1978 were approved by the State Government (appellant No.2) vide communication dated 25.09.1979. It is argued by Shri K. K. Venugopal, Senior Advocate appearing on behalf of the appellants and Shri S. Ganesh, Senior Advocate for respondent no.2 that since there was no approval of the State Government to the amendment of 1994, as such it cannot be said that such an amendment was operative, or that B.S. Narayan could have acted under the amended para (IV)(i) of the Deed to nominate the plaintiff (Ragini Narayan) as a Donor Trustee. It is further submitted that without the aid of Resolution dated 10.12.1994 read with delegation of power made by B.S. Narayan in favour of the plaintiff, she has no entitlement to discharge functions of the Donor Trustee. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1995) is Annexure A-7 filed by the Respondent No.2 with the additional documents, which is copy of the Deed of Appointment' of the Government of Karnataka as successor Donor Trustee of executant B.S. Narayan. In our opinion, the appellants cannot approbate and reprobate at the same time. On one hand they rely on this document to nominate M.R. Srinivasa Murthy, and appoint him as Donor Trustee, and on the other hand, they are not ready to accept the approval of State Government to the Amendment Deed registered on 30.01.1995 on the basis of which the executant has exercised the powers in nominating the Donor Trustee. Para 2 of Annexure A-7 i.e. Deed of Appointment' dated 13.08.1995 executed by B.S. Narayan reads as under: .......WHEREAS the above executant is the Donor Trustee of a Registered Educational Trust, created under document dated 02.12.1957 and registered as Document No.2944/57-58 in Book I, Volume 48, pages 10 to 35, registered in the Office of the Sub-Registrar, Bangalore City South, and WHEREAS the above document created the B.M.S. Educational Trust, which document was subsequently amended once by registered document No. 498/81-82 dated 25.06.1981 and fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Donor Trustee during his life time where after he was to be succeeded by his lineal descendant, and if the mode of succession fails then, power of the appointment of the Trust Deed was to vest with the State Government. Amendment of 1978 as shown in the chart quoted earlier, makes it clear that name of Minnie Narayan was added in para (IV)(i) as nominee to succeed from B.S. Narayan, and thereafter senior most of the lineal descendant, and if the mode of succession fail, the powers were to be exercised by the State Government. It appears that after Minnie Narayan was divorced by B.S. Narayan, and he (B.S. Narayan) got married to Ragini Narayan (plaintiff) where after further amendment was proposed and passed through Resolution dated 10.12.1994 (as mentioned in amended deed registered on 30.01.1995) and by this amendment i.e. of 1994 name of Minnie Narayan was deleted, and it was mentioned that after the life time of B.S. Narayan, his senior most lineal descendant or a member of his family or his wife was to succeed, and if mode of succession fails, then powers of Donor Trustee were to be exercised by the State Government. 19. There is concurrent finding of fact of the courts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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