TMI Blog2011 (10) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... hort) by treating it 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 otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 92 of the Code of Civil Procedure for framing of a scheme for this trust. They were: (i) Shri D.V. De Monte, a member of the First Board of Trustee, (ii) Dr. K.P. Natrajan, a parent of a student of the institution, 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause 10, which is found at page 6, the income form the school or any income or funds pertaining to the trust shall be exclusively used for the purpose of the trust, including financial assistance to poor and deserving pupils or students irrespective of caste, creed or religion. IN Ex. P-2, which is prospectus of St. 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 crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested in the trust and the view taken by the learned single Judge to the contrary was not correct. In the facts and circumstances of the case the Division Bench formed the opinion that having held the institution to be a public trust, it was necessary to frame an appropriate scheme. It noted that initially there was only one school run by the 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, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kora K. George and also by the interim Chairman. Smt. Thomas once again tried to raise the issue that it was a minority institution, but the Division Bench declined to accept that submission in view of the finding of the single Judge on that issue being left undisturbed by this Court. Smt. Thomas wanted to be appointed as a trustee for life. Division Bench noted that there were serious allegations 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 metho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to restrain the trustees from alienating any of those estates or properties and sought appointment of a receiver. This Court rejected the said I.A. by passing the following order on 16.4.2004 We are not inclined to appoint a receiver as prayed for in this application at this stage. However, we restrain the trustees from alienating any of the estates or the property without the permission of this Court. 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. 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he T. Thomas Educational Trust is a minority institution and the High Court has erred in appointing Shri S. Palamalai, a non-Christian as the Executive Trustee and CorRespondent of the Trust. In support of his submission that it is a minority institution, Shri Subramanian, learned senior counsel appearing for the Appellant submitted that the trust was found by Late Shri T. Thomas who was a Christian. The school started by him was named as St. Mary's School. Subsequently, 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 Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction of an outside authority however high in the governing body would be destructive of the fundamental right guaranteed by Article 30(1) of the Constitution. In his submission, the proper course must be to consider the past history of the institution and the way in which the management has been carried out herein before as was laid down by the Privy Council in MD. Ismail Ariff and Ors. v. Ahmed Moolla Dawood and Anr. reported in AIR 1916 P.C. 132. This being the position, in his submission the order of appointment 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectly understood and given utmost importance, which is what the Court had done in this matter all throughout. He relied upon the judgment of a Constitution Bench in S. Azeez Basha v. Union of India reported in AIR 1968 SC 662 where in the context of Article 30(1) this Court observed in paragraph 19 as follows: 19. ... The Article in our opinion clearly shows that the minority will have the right to administer educational institutions of their choice provided they have established them, but not otherwise. The article cannot be read, 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 edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person belonging to another religion cannot amount to any infringement of the right of a minority under Article 30(1) of the Constitution. Consideration of the rival submissions 24. We have noted the submissions of both the counsel. To begin with, we would like to refer to the provision of Section 92 of Code of Civil Procedure where under the proceedings leading to these appeals were initiated. This Section reads as follows: 92. Public charities - (1) In the case of any alleged breach of any express or constructive trust created for public purposes of 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) appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in part, have, since they were laid down, (i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust]. 25. As can be seen from this Section two or more persons having interest in the trust may institute a suit in the principle civil court of original jurisdiction to obtain a decree concerning a public charity for various purposes mentioned therein. Such suit will lie where these persons make out a case of alleged breach of 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 him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioning of the trust as required under Section 92. After the scheme was finalized, although Smt. Elizabeth filed an appeal, she withdrew the same. It was at this stage that the Appellant filed the present appeal raising the issues that he has raised. The correct course of action for him ought to have been to file his suit under Section 92, if he deemed it fit. 28. As can be seen from the narration above, as far as the character of the trust as a secular public trust is concerned, that view was taken initially by a learned Single Judge. Subsequently, it was confirmed by a Division Bench as well as by a bench of three judges of this Court. The fact that the trust was set up by Late Shri T. Thomas who belongs to a religious minority was very much there before 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant thereof has a right of appeal under Section 41 of that Act to the prescribed Authority. Section 53 of the Act clearly lays down that no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by an authority or officer mentioned in this Act. Thus, prima facie, it would appear that the orders were obtained from forum non-juries. The reliance on the judgments of the Civil Court though pressed into service before the single Judge were not taken as a relevant factor for deciding the minority character of the trust. Now, that this submission is being reiterated, Shri Ganesh has submitted with some force that these orders are from a Court without any jurisdiction. We must note in this connection, 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 purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trust was being created for the benefit of the Christian community. Thus the proposition in Very Rev. Mother Provincial in fact goes against the Appellant. 32. In the facts of the present case, we may not be required to go to the extreme as canvassed by Shri Ganesh based on the quotation from judgment in the case of Shirur Mutt (supra). But, we cannot ignore the proposition laid down in S. Azeez Basha (supra) namely that if an institution is established by somebody else, meaning thereby a person belonging to another religion or a secular person, a religious minority can not claim the right to administer it on the basis of Article 30(1) merely because he belongs to a minority or for some reason or the other people of a minority might have been administering it. In the instant case the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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