Sister Syno v. Reji Markose and others (RFA No. 110 of 2012, O.S. No. 119/1998, Sub Court, Kottayam)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 1ST DAY OF AUGUST 2014/10TH SRAVANA, 1936 RFA.No. 110 of 2012 () ----------------------O.S.No.119/1998 ON THE FILE OF PRINCIPAL SUB COURT, KOTTAYA, APPELLANT(S)//COUNTER PETITIONER NO.1/PLAINTIFF NO.1: ----------------------------------------------------------SISTER SYNO AGED 71 YEARS MOTHER SUPERIOR, MAGADALINE MARY VANITHA MANDIRAM S.PURAM.P.O., KURICHY.(1ST PLAINTIFF) BY ADVS.SRI.P.RAMAKRISHNAN SRI.TOM K.THOMAS RESPONDENT(S)/PETITIONER AND COUNTER PETITIONERS 2 TO 17/DEFENDANTS 1 TO 13 & PLAINTIFFS 2 TO 5: ----------------------------------------------------------- 1. REJI MARKOSE, AGED 45 YEARS S/O. LATE V.O. MARKOS RESIDING AT VATHAKAT 1ST BUNGALOW, ERAYILKADAVU ROAD KOTTAYAM-686001. 2. ABRAHAM MAR CLEMIS(DIED), AGED 80 YEARS METROPOLITAN, MALANGARA SYRIAN KNANAYA CHURCH MAR EPHPREM SEMINARY, CHINGAVANAM.P.O. KOTTAYAM(1ST DEFENDANT) 3. REV. FR. C.K. MATHEW, PRIEST TRUSTEE, AGED 63 YEARS MALANGARA SYRIAN KNANAYA CHURCH MAR EPHPREM SEMINARY, CHINGAVANAM.P.O. KOTTAYAM(2ND DEFENDANT) 4. THAMPY PHILIP, AGED 58 YEARS LAY TRUSTEE, MALANGARA SYRIAN KNANAYA CHURCH MAR EPHPREM SEMINARY, CHINGAVANAM.P.O. KOTTAYAM(3RD DEFENDANT) 5. SARASU MARKOS, AGED 45 YEARS HEADMISTRESS, S.M.M.G.H. SCHOOL, S.PURAM.P.O. KURICHI(4TH DEFENDANT) 6. DISTRICT EDUCATIONAL OFFICER COLLECTORATE.P.O., KOTTAYAM (6TH DEFENDANT) 7. SOSAMMA KURIAKOSE MATHERIL, NEELAMPEROOR, KOTTAYAM (7TH DEFENDANT) 8. BEENA BABU PAARAPARAMBIL HOUSE, KUZHIMATTOM.P.O., CHINGAVANAM (ADDL. 8TH DEFENDANT) 9. RANI MARKOSE VATHAKAT HOUSE, ERAYILKADAVU KOTTAYAM (ADDL. 9TH DEFENDANT) 10. AJITHA PHILIP KIZHAKKAKALATHIL HOUSE, CHANNANICADU.P.O. KOTTAYAM. (ADDL. 10TH DEFENDANT) 11. ACHAMMA ABRAHAM KOLLAMPARAMBIL HOUSE, CHANNANICADU.P.O. KOTTAYAM. (ADDL. 11TH DEFENDANT.) 12. SOSAMMA JOSEPH KOCHUPURACKAL HOSUE, CHINGAVANAM.P.O. (ADDL. 12TH DEFENDANT) (REMOVED FROM THE PARTY ARRAY) 13. LUSYA PHILIP THYPARAMBIL HOUSE, CHANNANICADU.P.O. KOTTAYAM. (ADDL. 13TH DEFENDANT) 14. SEBA SHAJI, AGED 32 YEARS W/O. SHAJI, NAICHERIL KUDAMALOOR.P.O. KOTTAYAM.(2ND PLAINTIFF) 15. KUNJAMMA THOMAS, AGED 62 YEARS W/O. LATE K.C. THOMAS, CHINGAVANM KOTTAYAM.(3RD PLAINTIFF) 16. REJINI THOMAS, , AGED 24 YEARS W/O. THOMAS ONATTU HOUSE, THAZHATHANGADI.P.O. KOTTAYAM.(4TH PLAITIFF). 17. AMMAL ZACHARIAH, AGED 58 YEARS W/O. LATE K.C. ZACHARIAH, KAROTTU HOUSE CHINGAVANAM.P.O., KOTTAYAM(5TH PLAINTIFF) ADDL.R18: VANITHA MANDIRAM CHARITABLE TRUST, VISHUDHA MAGDALANA MARIYAM VANITHA MANDIRAM, SACHIVOTHAMAPURAM P.O., KURICHY VILLAGE, REP. BY ITS SECRETARY SR. SEBITHA (ADDL. R18 IMPLEADED AS PER ORDER IN IA 96/2013 DT.1.8.2014) (R12 REMOVED FROM THE ARRAY OF PARTIES AS PER ORDER IN IA 586/2012 DT. 7.3.2012) RR6 BY ADV. GOVERNMENT PLEADER SHRI PADMALAYAN R1 BY ADV. SRI.V.ABRAHAM MARKOS R1 BY ADV. SRI.MATHEWS K.UTHUPPACHAN R1 BY ADV. SRI.TERRY V.JAMES R1 BY ADV. SRI.TOM THOMAS (KAKKUZHIYIL) R1 BY ADV. SRI.P.B.KRISHNAN RADDL.18 BY ADV. SRI.R.D.SHENOY (SR.) RADDL.18 BY ADV. SRI.R.LAKSHMI NARAYAN RADDL.18 BY ADV. SMT.R.RANJINI THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 26-6-2014, THE COURT ON 1/8/2014 DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **R.F.A.No.110 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 1ST DAY OF AUGUST, 2014** ## **JUDGMENT** Ramachandran Nair, J. The appellant herein is plaintiff No.1 in O.S.No.119/1998 of the Sub Court, Kottayam. The present appeal is filed against the final judgment passed in I.A.No.3140/2007 in the said suit and the appellant was the first counter petitioner. 2. In the suit, a preliminary decree was passed for framing a scheme. Plaintiffs 1 to 5 in the suit and the fourth defendant were the major contestants. The first defendant is the Metropolitan of Malankara Syrian Knanaya Church. Some of the necessary facts for the disposal of the appeal are the following: The suit is for framing a scheme, electing new Trustees and Managing Committee members for carrying on the management and administration of “Kurichi Visudha Magdalana Mariam Vanitha Mandiram Trust” (hereinafter referred to as “Vanitha Mandiram Trust”). The female members of the Malankara Syrian Knanaya community are the beneficiaries of the Trust. It is an independent trust formed in the year 1115 M.E. by RFA No.110/2012 -2- certain members of Knanaya community for the betterment of the female members of the community. A meeting was held on 30[th] Medam 1115 M.E. wherein the trustees and members of the executive committee were appointed for the administration of the Trust. Ext.A1 is the Constitution adopted. In the year 1966 one suit, viz. O.S. No.118/1966 was filed before the Sub Court, Kottayam by one Shri P.I. Thomas as plaintiff for a declaration of the plaintiff's title to and possession of the suit properties in his capacity as trustee of the Vanitha Mandiram Trust and for recovery of money stolen from the Bhandaram of the trust. The said suit was disposed of by judgment dated 3.1.1970 in favour of the plaintiff. The fourth defendant therein was Rev. Mar Climis Metropolitan. By the said judgment, defendants 1 to 6 and 8 onwards were restrained from trespassing upon any portion of the suit properties or in any way interfering with plaintiff's right to administer the institution and its properties in his capacity as the trustee of the institution. An appeal was filed before this Court as A.S. No.138/1970 by judgment dated 10.7.1975, wherein the decree was confirmed with slight modification. 3. The present suit O.S.119/1998 was filed by the plaintiff mainly to RFA No.110/2012 -3- frame a scheme, since there is a vacuum in the administration of the institutions. The averments in the plaint, mainly, were the following: Late Shri V.O. Abraham who alone was the surviving member of the Executive Committee, also died on 11.3.1998. The suit properties include a Girls High School, Vanitha Mandiram, etc. and late Shri V.O. Abraham was acting as the Manager of the High School till his death. Item No.1 is in the possession of the inmates of the Vanitha Mandiram and Item No.2 rubber estate is in the possession and management of Malankara Syrian Christian Association. The plaintiffs are the female members of the Malankara Syrian Christian community and as such beneficiaries of the plaint trust. They filed the suit in their individual capacity as beneficiaries of the trust as well as representing the entire female members of Malankara Syrian Christian community. The fourth defendant is a nephew of late Shri V.O. Abraham to whom the management of the Vanitha Mandiaram was sought to be transferred. After the death of Shri V.O. Abraham there is nobody to administer and manage the affairs of the Vanitha Manidram Trust and its properties. None of the original trustees or executive committee members are alive. The original byelaws does not contain a provision for convening RFA No.110/2012 -4- a meeting of the beneficiaries or for duly electing office bearers for the management and administration of the Trust and it is quite inadequate to meet the present situation. Therefore, it was contended that new members of the executive committee and trustees have to be elected for the proper management of the trust property. The suit is one filed under Section 92 of the Code of Civil Procedure. 4. Defendants 1 to 3 and the 4[th] defendant have filed separate written statements. Various contentions have been taken therein. 5. The preliminary judgment will show that issue Nos.1 to 4 have been framed by the court. On the side of the plaintiffs P.W.1 was examined and Exts.A1 to A3 were marked. The defendants examined D.W.1 and Ext.B1 was marked. 6. Even though various contentions were taken by the defendants, during the hearing it was informed to the court that they are also not against framing a scheme for the management of the trust property. Finally, the court directed that the parties to the suit except defendants 1 to 3 are entitled to file a draft scheme for the administration of the trust during the final decree stage. Ext.A1 is the constitution of the trust marked in RFA No.110/2012 -5- evidence. It was directed that the office bearers of the trust will be elected from the persons mentioned in Sections 3 and 4 of Ext.A1. The plaintiff was directed to publish a notice inviting objections and draft scheme from all the members who are interested as per clause 4 of Ext.A1 trust deed. It was also directed that the office bearers elected as per the constituted scheme and trust will take possession of all the assets, money and management of the trust properties. 7. The final judgment will show that the plaintiff and defendant No.4 filed separate draft schemes and the scheme submitted by the fourth defendant was accepted with slight modification and accordingly the final decree was passed. It was held that the scheme will form part of the final decree. It is against the same, this appeal is filed. During the pendency of the appeal. I.A. No.96/2013 was filed by the petitioner, viz. Vanitha Mandiram Charitable Trust to implead them and I.A.No.945/2013 is to accept the documents produced along with the application. 8. We heard Shri Tom K. Thomas, learned counsel for the appellant, Shri P.B. Krishnan, learned counsel for the first respondent and Shri R.D. Shenoy, learned Senior Counsel and Shri R. Lakshmi Narayan appearing RFA No.110/2012 -6- for the petitioner in I.A. NO.96/2013. 9. Mainly it is contended by the learned counsel for the appellant Shri Tom K. Thomas that the final decree passed is not in tune with the findings in the preliminary judgment. It is submitted that Ext.A1 Constitution will show that clauses 3 and 4 are important as far as the administration of the trust is concerned. Therefore, after the court has held in the preliminary decree that office bearers of the trust have to be elected from the persons mentioned in the said clauses in Ext.A1, the exclusion of persons who are covered by clause 3 while framing the scheme, is not legally sustainable. The committee for administration will have to be elected from the persons mentioned in clauses 3 and 4. 10. It is further submitted that one of the noticeable defect in the scheme now accepted by the court is that even though the properties will have to be used for the benefit of the female members of the Samudayam, no female member finds a place in the General Body and the committee for administration of the trust properties which cannot be supported. Learned counsel further submitted that the court has blindly accepted the list of successors of persons who formed the original body, which was produced RFA No.110/2012 -7- along with the draft scheme and those persons have been accepted as forming the General Body of the Trust. It is submitted that no finding has been rendered with respect to the eligibility and qualification of any of them and no evidence has also been produced to prove that they are the successors duly nominated as per Clause 4 of Ext.A1. 11. Learned counsel further submitted that the scheme framed is unsupportable and further, it is pointed out that there is nothing in the judgment to show that the draft scheme submitted by the plaintiff has been discussed. No findings have been rendered on any of the points raised by the plaintiff and the draft scheme has been totally ignored also. For all these reasons, it is prayed that the appeal may be allowed and the matter may be sent back for fresh consideration. 12. These contentions have been stoutly opposed by Shri P.B. Krishnan, learned counsel for the respondents. Learned counsel submitted that the persons mentioned in clause 3 can claim administration of the trust only if the contingencies provided therein arrive and that stage has not reached so far. Therefore, the only manner in which the trust can be administered is by following the method prescribed in clause 4. The same RFA No.110/2012 -8- alone has been done by the court. It is submitted that with regard to the eligibility and qualification of each one of the members whose details are available in Annexure A1, no specific objections have been raised. The findings are not contrary to the preliminary judgment. 13. Before going further, we will refer to clauses 3 and 4 of Ext.A1 based on which various arguments have been raised. Ext.A1 was adopted as a Constitution for administration of the trust. It is provided in clause 3 that the trust will be administered by a Managing Committee known as “Saint Magdalana Mariyam Vanitha Mandiram Trust”, till seven or more female members of the Knanaya Samudayam having decided to lead a monastic life form themselves into a congregation of nuns, gets recognition from the Metropolitan, and demands management of the trust. Clause 4 specifies the details of the persons who will be in the said Managing Committee. They include the following: (i) Persons whose names are mentioned in Sale Deed No.1111/1013 M.E. by which the properties were purchased for the Mandiram; (ii) In the absence of them, one nominee of each of them from among the members of Knanaya Samudayam; (iii) If anybody may die without making such a nomination, then his seniormost legal heir and RFA No.110/2012 -9- instead anybody nominated by such person; (iv) persons who have already donated minimum of Rs.25/- to the trust and those who may donate such amounts thereafter and their successors. It is also provided that in respect of the persons who are entitled to be members of the Committee at that point of time and in future, a certificate will be issued by the executive committee and only persons who are having certificates, can exercise vote. 14. We will now come to the pleadings in I.A. No.96/2013 since the petitioner therein highlights the existence of a contingency as provided in clause 3 of the Constitution which is a development during the pendency of the appeal. The deponent of the affidavit claims to be the Secretary of a new trust formed. It is stated that in tune with clause 3 of Ext.A1 Constitution, ten nuns of Knanaya Samudayam who decided to lead monastic life, formed themselves into a congregation of nuns by constituting a trust under the name and style Vanitha Mandiram Charitable Trust and got it registered on 15.10.2012, after obtaining approval from the Chief Metropolitan Arch Bishop Mar Severios Kuriakose. Therefore, the management of the Vanitha Mandiram and the other institutions has to be entrusted to the petitioner Trust. It is stated that it is a subsequent event RFA No.110/2012 -10- after the filing of the appeal and therefore the relief will have to be moulded accordingly and the petitioners in the said application will have to be impleaded. 15. The first respondent has filed a detailed counter affidavit stating that the petition for impleading cannot be entertained long after the final decree was passed on 8.8.2011. It is stated that after the final decree was passed, the General Body of the Vanitha Mandiram Trust was reconstituted, new trustees were elected, properties became vested in the new trustees and the management and administration of the trust was assumed by the new trustees. It is further pointed out that Order I Rule 10(2) C.P.C. cannot be invoked for filing the petition for impleading. It is further contended that no new cause of action can be introduced and for that reason also the petition is not maintainable. Various other contentions have also been raised in the counter affidavit. 16. Shri R.D. Shenoy, learned Senior Counsel appearing for the impleading petitioner raised the following contentions. The impleading petitioner is well within its rights to move this Court in the pending appeal in the light of the impact of the subsequent events. It is submitted that in RFA No.110/2012 -11- tune with Clause 3 of Ext.A1, any arrangement for administration of the trust by the Nirvahaka Samithi (executive committee) will be only till seven female members of Malankara Syrian Knanaya Community, having taken a vow of leading a monastic life, forms a congregation with approval of the Metropolitan and further claim to take over the administration of the institutions. Accordingly, ten nuns of Knanaya Samudayam who decided to lead a monastic life, formed themselves into a congregation of nuns and constituted a trust under the name and style “Vanitha Mandiram Charitable Trust”. It was registered on 15.10.2012 after getting approval from the Chief Metropolitan Arch Bishop Mar Severios Kuriakose on 7.9.2012. Therefore, the management of the Vanitha Mandiram Charitable Trust and other institutions will have to be entrusted to the said trust, viz. The petitioner in I.A. No.96/2013. The suit is one filed after getting permission from court under Order 1 Rule 8 C.P.C. also. It is therefore submitted that no amount of objections could be taken to oppose the said application for impleading. It is submitted that the said petition may be allowed and the final decree now passed may be set aside and the matter may be remanded back for fresh consideration. Learned Senior Counsel relied upon the provision under RFA No.110/2012 -12- Order I Rule 10(2) C.P.C. and the decisions of the Apex Court in **Deoki Nandan v. Murlidhar and others** (AIR 1957 SC 133 and **Ramesh Kumar v. Kesho Ram** (AIR 1992 SC 700) and that of a learned Single Judge of this Court in **Subash v. Patharam Educational & Cultural Society** (2012 (4) KLT 33). 17. Per contra, Shri P.B. Krishnan, learned counsel appearing for the contesting respondents in the appeal submitted that it is not a case where any subsequent event has occurred which has got the effect of a drastic nature affecting the prayers in the suit. It is submitted that the impleading petitioner is approaching this Court claiming that a new private trust has been formed. Actually, the trust herein is a public trust whereas the impleading petitioner is styled as a private trust. It cannot be conceived that a private trust can take over the affairs of a public trust and on that score itself the application will have to be rejected. It is further submitted that this is not a case where the principle under Order I Rule 10(2) C.P.C. can be applied as the preliminary decree has become final and the present appeal is only one challenging the final decree. By relying upon the judgment of a Division Bench of this Court in **Neelakantha Pillai Ramachandran Nair** RFA No.110/2012 -13- **v. Ayyappan Pillai Kumara Pillai** (AIR 1978 Ker. 152 = 1978 KLT 305), learned counsel submitted that none of the questions settled by the preliminary decree can be reopened. An adjudication of the rights claimed by the impleading petitioner herein will require ripping open the preliminary decree. The Division Bench has made it clear, in the said judgment, that in such situations, no impleadment can be granted. Learned counsel also referred to the various clauses in the trust deed produced along with I.A. No.945/2013 to contend that they go against the relevant clauses in Ext.A1 and further pointed out that even by assuming that the impleading petitioner has got a cause of action, its remedy is not in the present proceedings but elsewhere. 18. As of now, we are only considering whether the application under Order I Rule 10(2) C.P.C. can be allowed and the final decree can be set aside at the instance of the said petitioner. **Deoki Nandan's case** (AIR 1957 SC 133) is relied upon by the learned Senior Counsel for the impleading petitioner to draw our attention to various principles concerning a Trust. In **Ramesh Kumar's case** (AIR 1992 SC 700), the Apex Court was of the view that “the normal rule is that in any litigation the rights and RFA No.110/2012 -14- obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not preluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief.” It is pointed out that the said principles will squarely apply here. 19. **Subash's case** (2012 (4) KLT 33) is by a learned Single Judge of this Court wherein it was held that third parties can be impleaded as proper parties to a Regular Second Appeal even when they were not parties either to the suit or to the appeal therefrom. We have gone through in detail the discussion made therein. In the said case, out of the several plaintiffs, plaintiffs 1, 3 and 4 died and their legal heirs were not impleaded. The second plaintiff and the defendants requested a compromise to be recorded, whereby they sought to set aside the judgment of the lower appellate court and to restore judgment of the trial court. At that stage the impleading petition was filed. This Court held that Order I Rule 10(2) C.P.C. enables a court to implead necessary and proper parties at any stage of the suit in RFA No.110/2012 -15- order to effectively and completely adjudicate upon and settle all the questions involved in the suit. This power of the trial court can as well be exercised by the appellate court as per Section 107 of the C.P.C. Taking note of the exceptional circumstances which came into fore in the said case, this Court allowed the impleading application. It was held that the impleading petitioners are not total strangers to the proceedings. 20. As far as the principles relevant in suits claiming partition are concerned, a Division Bench of this Court had delineated the relevant ones in **Neelakantha Pillai Ramachandran Nair's case** (AIR 1978 Ker. 152). Shri R.D. Shenoy, learned Senior Counsel for the impleading petitioner also relied upon the last paragraph of the said judgment. That was a case where an application was filed under Order I Rule 10(2) C.P.C. for impleading the revision petitioner as additional defendant in the suit, which was for redemption of a mortgage. The impleading petitioner therein was the assignee from the mortgagee and his application was allowed by the court below, which was under challenge before this Court. After discussing Order I Rule 10(2) C.P.C. and the power conferred on the court under the said provision, the relevant principles have been stated in paragraphs 4 and 5. RFA No.110/2012 -16- We extract hereinbelow the relevant portions of them: “4. As pointed out by the Supreme Court in _Venkata Reddi v Pothi Reddi_ (AIR 1963 SC. 992), S.97 CPC. clearly indicates that in respect of the matters covered by a preliminary decree, the said decree is to be regarded as embodying the final decision of the court passing it. It will not, therefore, be reasonable to understand the provision in Order I R.10 CPC. as empowering the impleadment of additional parties in a suit in circumstances which would necessitate the ripping open of the determination made in the preliminary decree already passed in the suit. However, one can very well conceive of several situations where an impleadment of an additional party may be asked for or may be considered by the court to be necessary for a proper and complete adjudication of the matters in controversy in such a suit and such impleadment would not involve the reopening of matters already finally settled by the preliminary decree. The correct legal position in our opinion is that while the passing of a preliminary decree in a suit for partition or redemption will not ipso facto operate as a total bar against the addition of any new parties to the action, the impleadment of additional parties subsequent to the passing of the preliminary decree is permissible only if none of the questions already settled by the preliminary decree would have to be reopened by the court as a consequence of such impleadment; the addition of parties can be allowed at that stage only on condition that the further RFA No.110/2012 -17- proceedings to be taken in the suit will be only on the basis of the preliminary decree already passed, and none of the questions settled by the preliminary decree will be allowed to be reagitated on the ground that the person newly impleaded was not before the court at the time of the passing of the preliminary decree. As to whether or not the impleadment of a new party should be allowed on the aforesaid condition in the circumstances of a particular case will have to be considered by the court on the merits of each case as and when the said question arises. No party should be impleaded against his will if that would involve his being subjected to the terms of a preliminary decree which was passed without his being on the party array, particularly when there are pleas which the said party could have put forward in respect of the matters considered and settled by the preliminary decree.” In paragraph 5 it has been held that “the power of the court to implead additional parties at a stage subsequent to the passing of a preliminary decree in an action for partition or redemption must be limited to cases where such impleadment of additional parties would not involve the ripping open of any of the matters already dealt with in the preliminary decree and the case can be proceeded with the additional parties on record on the basis of the determination already given in the preliminary decree.” On the facts RFA No.110/2012 -18- of the case, in paragraph 6 it was held that the impleadment of the parties therein will not involve reopening of any of the matters settled by the preliminary decree. 21. Herein, going by the preliminary decree, the court below has directed to frame a scheme. The scheme was approved by the final judgment, which is under challenge in this appeal. The final decree was passed on 8.8.2011. The trust who is the impleading petitioner, was formed and registered on 15.10.2012. As rightly pointed out by Shri P.B. Krishnan, learned counsel for the contesting respondents, it will only give a new cause of action for the said trust. To adjudicate the rights claimed by the said trust, evidently, the preliminary decree will have to be ripped open. Without the same, their right for administration of the public trust herein, cannot be adjudicated. The scheme as now framed will have to be set at naught and the right of the impleading petitioner will have to be gone into by the court. Their presence will not be for adjudicating a matter at the stage of passing the final decree, but ultimately the preliminary decree will have to be reopened. Such a course being not permissible, going by the dictum laid down in **Neelakantha Pillai Ramachandran Nair's case** (AIR RFA No.110/2012 -19- 1978 Ker.152), we will not be justified in allowing the said application. I.A. No.96/2013 is hence rejected without prejudice to its right to avail proper legal remedies. 22. Before going into the merits of the respective contentions of the parties, we will just refer to the background of the present litigation. Ext.A2 is the judgment of the Additional Sub Court, Kottayam in O.S. No.118/1966 and Ext.A3 is the judgment in A.S. No.133/1970 in the appeal from it, rendered by this Court. Therein, it was held that the plaint trust is an independent religious and charitable trust and the female members of the Malankara Syrian Knanaya community are the sole beneficiaries of the trust. It was also held that the Metropolitan has no right in the administration of the trust. Ultimately, in the preliminary judgment passed in the present suit it was directed that the parties to the suit except defendants 1 to 3 are entitled to file a draft scheme for the administration of the trust during the final decree stage. The office bearers of the trust will be elected from the persons mentioned in clauses 3 and 4 of Ext.A1. The plaintiff was directed to publish a notice inviting objections and draft scheme from all the members who are interested as per Section 4 of Ext.A1 trust deed. Finally, RFA No.110/2012 -20- it was directed that the office bearers elected as per the constituted scheme and trust will take possession of all the assets, money and management of the trust properties. 23. The plaintiffs as well as the fourth defendant in the suit submitted draft schemes and the scheme submitted by the fourth defendant (first defendant herein) was approved by the court and accordingly, the final decree has been passed. 24. The first point raised by the learned counsel for the appellant is concerning the absence of persons mentioned in Clause 3 of Ext.A1 in the General Body, in spite of a finding in the preliminary judgment. 25. Ext.A1 is the Constitution adopted on 30[th] Medam, 1115 M.E. in respect of Visudha Magdalana Mariam Vanitha Mandiram and allied institutions. Paragraph 1 states about the background of the establishment of the Vanitha Mandiram, starting of the English Medium school, constructions of other buildings, persons who were behind the whole endeavour, the name of the Secretary of the committee who was managing it at that point of time, the name of the Manager of the school and that of the correspondent. In Clause 2 it is stated that the Vanitha Mandiram and the RFA No.110/2012 -21- allied institutions are treated as for the female members of the Knanaya Community and for their benefit. Clause 3 states that till at least 7 female members of the community who have taken a vow to lead a monastic life and forms a congregation of nuns after obtaining approval from the Metropolitan, demands, the administration of the establishments will be in the name of a Bharanasamithi (Managing Committee ) known as “Saint Magdalana Mariam Vanitha Mandiram Bharana Samithi”, which will be formed as provided in the clauses below and that the said Bharana Samithi will have all powers and authority in respect of the administration of the establishments. 26. Clause 4 provides for the description of the personnel who will be the members of the Bharana Samithi. We have already discussed the split up details of the said clause in paragraph 13 above. 27. Clause 5 relates to the procedure for convening of the General Body, quorum for a meeting of the General Body and other matters. Procedure is also prescribed for convening of the General Body meeting as per requisition by required number of members, Secretary or by two members of the executive committee. Clause 6 provides for the constitution RFA No.110/2012 -22- of the Executive Committee which should consist of a minimum of 9 members and a maximum of 15 members which is known as “Nirvahaka Committee”. There will be a President, Secretary and a Trustee. If the Manager and the Correspondent of the school are those who are not the President, Secretary or Trustee, they will be members of the “Nirvahaka Samithi” and as long as they remain as Manager and Correspondent, they need not be separately elected as members of the Committee. It is also provided that two members of the committee always will be women who are elected from the Malankara Syrian Knanaya Vanitha Samajam. As long as they continue as elected members of the said Samajam, there need not be any election to their place every year. Except the school Manager, Correspondent and the above two women members, all the other committee members and the President, Secretary and Trustee will have to be elected every year in the annual General Body meeting. Clause 7 provides for the term of the school Manager and the Correspondent. They should be persons who are elected by the Bharana Samithi (whether the two offices are held by two persons or by one person alone) and to prescribe their term and for removing them after obtaining permission from Travancore Education RFA No.110/2012 -23- Department and to appoint other persons in their place, the Bharanasamithi will have absolute power. The Manager will have the power to appoint staff members in the school, disciplinary powers including power to impose penalty, to collect income and to incur expenditure for the purpose of the school and he will have to keep separate accounts of the same. At the same time, they will be responsible to the Nirvahaka Samithi in all the matters. Clause 8 provides for the quorum for the meeting of the Nirvahaka Samithi which is fixed as five. The meetings will have to be convened by the Secretary. If any one of the members of the Committee demands for convening a meeting of the committee, it will have to be done within one week by the Secretary and if the Secretary does not issue the notice the member concerned himself can convene the meeting after giving one week's notice. The committee members, even if they are having any official positions, will have only one vote. Clause 9 provides that the President shall preside over the committee meetings and in his absence another committee member can be selected to preside over the meeting. It is also provided that the member presiding a meeting will have casting vote in case of equal votes, in any meeting. Clause 10 provides for preparation of RFA No.110/2012 -24- minutes by the Secretary. It should be prepared in a separate book and get signed by the President. Clause 11 provides for the preparation of the budget, passing of the same in the meeting of the Samithi and other allied matters including amendment of it. Clause 12 provides for the keeping of accounts and other records by the trustee, preparation of balance sheet and approval of the same in the annual General Body meeting. It is provided in clause 13 that the accounting year will be Kollam Era (Malayalam Era) which can be modified by a decision of the Samithi. Clause 14 confers power on the executive committee in enrolling new members in the Samithi, for issuing certificate and for taking decisions on the eligibility for issuance of certificate. Clause 15 provides that a register should be maintained showing the members of the Samithi and that the power to include names will be in the Committee. Clause 16 confers power to frame rules in the Samithi, concerning administration of establishments, subsidiary ones, for admitting women in the Vanitha Mandiram, for their discipline and other matters from time to time, which shall not run contrary to the Constitution. It also provides that the Nirvahaka Samithi also has power to prescribe appropriate conditions and regulations in such matters till the next meeting RFA No.110/2012 -25- of the Bharana Samithi. Clause 17 is important which provides for the procedure for amendment of the constitution. 21 days notice is required for convening such a meeting and more than 50% of the total members should be present and it should get approval of more than 75% of the members present and voting. The names of 11 persons who have been elected to the Nirvahama Samithi, viz. The Executive Committee on 30.9.1115, are also appended to Ext.A1 which includes two women members, apart from the President, Trustee, Secretary, School Manager and the Correspondent. 28. We will now discuss the scheme approved by the court, as submitted by the first respondent herein. Clause 2 contains the objects of the Trust which include the following: “(a) To organise and manage congregation or congregations of female members of the Malankara Syrian Knanaya Community, who adopt a life of celibacy and sanyasin life, to frame rules and regulations for the same and to provide all facilities for the life and working of the congregations; (b) To conduct seminars, meetings etc. to better the social and spiritual activities of the female members of the said community and for their corporate activities; RFA No.110/2012 -26- (c) To establish schools, colleges, vanitha mandirams, charitable institutions, technical institutions, educational institutions, work places and other institutions for the economic upliftment and betterment of the female members of the said community including children and grown up persons dependent on them; and (d) To take up the administration of educational institutions and vanitha mandirams already established and functioning. (e) To administer all the affairs of the assets of the Trust.” It also provides for acquiring assets of all kinds and manage them for and on behalf of the Trust for social and charitable purposes and carry out the work of the Trust. Clause 3 describes the assets of the Trust and (a), (b) and (c) are the three items of assets of the Trust which include Kurichy Vanitha Mandiram and the property in which it is situated, the St. Magdalana Mariam English Medium High School and the landed property along with the assets, buildings structures, attachments, fixtures and fittings thereof and all other improvements, land measuring 2 acres and 72 cents in Kurichi Village which is rubber plantation and other improvements and other funds including bank deposits, etc. Clause 4 is important which provides for office bearers of the Trust. They are: (i) Managing Trustee; (ii) A committee of management called the Governing Council consisting of not RFA No.110/2012 -27- less than four members, out of which one each shall be the Secretary and the Treasurer respectively. Clause 5 provides for the election of the Managing Trustee and Governing Council by the General Body. Clause 6 provides for the constitution of the General Body. We extract sub-clauses (a), (b) and (c) hereunder: “i) The General Body of the Trust shall consist of the following members:- (a) Successors duly constituted of the persons mentioned in the Sale Deed No.1013 of 1111 ME of the Changanacherry Sub Registry as prescribed in Clause 4 of the Constitution dated 30[th] Medam 1115 ME of the Vanitha Mandiram Trust, marked as Ext.A1 in the aforesaid judgment in O.S. No.119/98 of the Sub Court, Kottayam. A list of such successors as ascertained is appended hereto as Annexure A and shall form part of this Constitution. (b) Successors of other persons who have contributed Rs.25/- or more as mentioned in Clause 4 of Ext.A1 Constitution quoted above, subject to production of proper receipt for such contribution. (c) Other members enrolled according to rules and regulations to be framed by the Governing Council constituted hereunder: ii) A list of all the members of the General Body as mentioned above will be entered in a Register of Members which shall be maintained by the Secretary of the Trust and shall be kept upto RFA No.110/2012 -28- date duly incorporating removals and additions as are found necessary in accordance with above provisions. The said register shall be duly inspected by the Managing Trustee from time to time; iii) The Managing Trustee shall be elected by the General Body of the Trust from among themselves; iv) The Governing Council Members shall also be elected by the General Body of the Trust. The Secretary and Treasurer shall be selected by the General Body from among the Governing Council Members; and (v) The terms of office of the Managing Trustee and Governing Council shall be three years and thereafter they shall be reconstituted as above. Sub-clauses (iii) and (iv) provide that the Managing Trustee shall be elected by the General Body from among themselves and the Governing Council Members shall be elected by the General Body and that the Secretary and Treasurer shall be selected by the General Body from among the Governing Council Members. As per sub-clause (v), the term of office of the Managing Trustee and Governing Council shall be three years at a time. The remaining clauses, viz. Clauses 6 to 9 provide for the functions and duties of the Governing Council, that of the Managing Trustee and that of RFA No.110/2012 -29- the Secretary and Treasurer. The last clause is clause 10 which provides for miscellaneous items. Going by clause 10(b) the meetings of the Governing Council and the General Body shall be presided over by the Managing Trustee. 29. Since learned counsel for the appellant submits that there is no discussion of the scheme dated 5.7.2008 submitted by the first plaintiff, we will just refer to certain details contained therein also. Going by clause 3, the Board of Trustees will be known as “Governing Body” and they include: “(A) The nun inmates of Visudha Magdalana Mariam Vanitha Mandiram who are leading monastic life with a perpetual vow and accepted by the Metropolitan of the Diocese of the Malankara Syrian Knanaya church; (B) All the persons who have contributed the amount not less than Rs.25/- to the funds of the Trust so far and any member of the Malankara Syrian Knanaya Church who donates a sum of not less than Rs.5,000/- to the trust in future; © Any five women elected by the Malankara Syrian Knanaya Vanitha Samajam; (D) The persons who are described as trustees in the sale deed No.1013 of 1111 M.E. Of S.R.O., Changanacherry and in their RFA No.110/2012 -30- absence the persons nominated by them, in the absence of such a nomination their eldest legal heir or the nominee of such legal heir if there exists such a nomination.” Clause 5 gives power to the Governing Body to co-opt any other person to the Governing Body from the Malankara Syrian Knanaya Church provided that such person has the support of majority of the members of the Governing Body. Clause 6 shows that the Governing Body will have office bearers, viz. President, Secretary, Treasurer and Manager of the school by way of election. As per clause 8, the General Body will include members of the Governing Body and the members of the Malankara Syrian Knanaya Church who donates a sum of not less than Rs.5,000/- to the trust and who is admitted to the Governing Body. The remaining clauses include the procedures for the conduct of Managing Committee meetings, quorum for such meetings and that of the annual General Body meeting(Clauses 10 and 11), provision that the President shall preside over all the meetings; provision for electing a Chairman for the meeting if the President is absent; provision for exercising casting vote by the President in case of equality of votes, (Clause 12); provision for preparing budget (clause 13), duties of the Treasurer; provision for keeping cash balance and accounts with the bank, RFA No.110/2012 -31- etc. ( Clauses 14 and 15). Clause 16 provides that the power to enroll new members in the Trust and to issue membership certificates shall vest with the Governing Body. It is stated that the membership to the persons who are contributing not less than the sum of Rs.5,000/- to the trust fund shall be granted within 90 days from the date of receiving contribution. Clause 17 provides that the Governing Body will have the right to frame additional rules, bye-laws or regulations not inconsistent with the scheme or objects for which the trust was constituted. Clause 18 provides that in respect of an amendment of the scheme, there should be a resolution of the General Body passed with the support of not less than 2/3[rd] of the members present in the meeting convened by a notice issued not less than 21 days ahead showing the purpose of the meeting in detail and attended by more than one half of the total members. 30. We will now consider the contention raised by the learned counsel for the appellant that the scheme now framed violates the directions issued in the preliminary judgment. Of course, it is true that in the preliminary judgment, while considering issue No.4, it is stated that the office bearers of the trust will be elected from the persons mentioned in RFA No.110/2012 -32- Sections 3 and 4 of Ext.A1 Constitution. We have already discussed the Constitution, Ext.A1. There is no provision for a joint operation of clauses 3 and 4 of Ext.A1. In respect of inmates of Vanitha Mandiram governed by clause 3, their turn to claim management arises only on completion of the formalities specified therein. Even if Clause 3 can be taken as wide enough to include all the nuns residing in the Vanitha Mandiram, then also how Clauses 3 and 4 can have a joint operation, will be a moot question. These matters have not been elaborated in the preliminary judgment. In the final judgment under appeal also, this question has not been gone into in detail. 31. Shri P.B. Krishnan, learned counsel for the first respondent submitted that the above two clauses cannot operate together as there cannot be a situation wherein persons covered by both can form themselves as a General Body, going by Ext.A1. We find much force in the above submission. The said clauses cannot operate jointly so as to form a common platform, i.e. the General Body. 32. The next contention to be considered is with regard to the absence of any female members in the General Body and in the Executive Committee. The finding by the court below is that female members of the RFA No.110/2012 -33- community are only beneficiaries of the trust and have no say in the management of the trust. The list of members produced along with the draft scheme by the first respondent, Annexure A also does not contain the names of any female members of the community; as successors or the nominees, etc. 33. When we go through Ext.A1, it can be seen from clause 2 that the institutions mentioned in clause 1 are treated as belonging to the female members of the Malankara Suriyani Knanaya Samudayam and are primarily intended for their benefit. Clause 1 mentions about the names of four female members of the said community who have also undertaken a leading role in collecting money for constructing the buildings, etc. for the institutions. When we come to the details of the constitution of the executive committee, in Ext.A1 it is clearly specified in clause 6 that two members of such committee will be two female members elected by the Malankara Syrian Knanaya Vanitha Samajam. It is also stated that as long as they continue as elected members representing the Samajam, they need not face an election every year. The names of the members of the executive committee elected in the General Body dated 13.9.1115 M.E. are given in RFA No.110/2012 -34- the last part of the Constitution, Ext.A1. Serial Nos.10 and 11 are Mrs. V.O. Abraham, B.A. and Mrs. K.C. Markose. It is clear that the founders, when adopted the Constitution, required two members of the committee to be women and they are to be elected by the Malankara Syrian Knanaya Vanitha Samajam. This aspect, therefore, had to be considered by the court below and the finding that women are only beneficiaries of the Trust alone is not correct. They are also in the management and administration as members of the Executive Committee. Further, if the situation provided under Clause 3 comes into force, then women alone will be in the administration. As per the Constitution now approved, there are no women members and there is no provision for inclusion of them, even though in the draft scheme submitted by the appellant, there is a provision to have four women members representing the Vanitha Samajam. Of course, how many such members should be there, can be a matter for consensus by the parties herein and in its absence the court will have to specify their numbers. Ext.A1 being the Constitution, which is relied on even now, the relevant provisions cannot be overlooked. 34. With regard to the names of members contained in the list RFA No.110/2012 -35- Annexure A appended to the scheme submitted by the first respondent, the complaint raised by the learned counsel for the appellant is that no enquiry was conducted by the court below with regard to their identity and details of nomination, etc. Learned counsel for the first respondent submitted that no objections have been taken by the plaintiffs with respect to the identity of them. Of course, the judgment does not record any finding on this aspect. For perusal by us, the learned counsel for the first respondent has produced as a table the succession line of the trustees. Of course, the details regarding their nominations are not part of the evidence and therefore, we will not be justified in finding anything on them. This will be a matter for consideration by the court below. Not that this Court is expressing any doubt as regards the nominees, but the court below can require evidence with regard to their nomination and other aspects for completeness of records, especially since the succession line will have to continue in future also, starting from them. The list contains 21 persons who, it appears, are all successors of the founder members of the trust. The records including the membership register of the General Body, can also be verified. Going by evidence of D.W.1, the first respondent herein, he has not seen the RFA No.110/2012 -36- documents showing the nominations. Some of the records were with late Shri V.O. Abraham, according to him,. There is one more aspect concerning the same. Going by Ext.A1 Constitution, there is a provision for enrollment of new members. The subscription provided is Rs.25/-. It is not clear from the evidence whether anybody apart from the successors of the founder members, have been enrolled. We are adverting to this aspect, in view of the fact that in the list submitted before us for perusal, there are 21 founder members of the Trust whose succession line is shown in the other columns. In paragraph 6(i)(a) of the draft scheme submitted by the first respondent, the list Annexure A is described as of successors of persons who are founders in Sale Deed No.1013 of 1111 M.E. read with Clause 4 of Ext.A1. All these matters may have to be verified. 35. Next we will refer to Clause 4(ii) of the scheme approved. When we compare Ext.A1 with that of the scheme submitted by the first respondent, what we find is that the number of members of the committee of management is shown, as “not less than four members” but the maximum number has not been provided and the method to fix the number is an election, is also not specified. This is not in tune with Ext.A1 where the RFA No.110/2012 -37- minimum has been provided as 9 and maximum as 15 (cause 6) for the Executive Committee. Going by Ext.A1, there should be a President, Secretary and Trustee. Clause 6 of Ext.A1 provides for having a Manager and Correspondent. They also are to be members of the Executive Committee. One of the institutions is a Girls High School. Late Shri V.O. Abraham was the Manager till his death. The evidence of D.W.1 will show that late Shri V.O. Abraham had nominated him as Manager and a letter was given to the District Educational Officer, obviously for approval of the same. Being an aided school, Chapter III of the Kerala Education Rules provides for various rules for the appointment of Manager and other related aspects. In the scheme now approved nothing has been stated as regards appointment of Manager and the Correspondent. Of course, both capacities can be rolled into one person. In this context, a reference to Clause 6 of the Scheme approved will show that the Governing Council is given the power to appoint all employees and other staff for the administration and carrying out the affairs of the Trust. No specific mention is made with regard to the appointment of teachers and other staff members in the school. Going by Ext.A1, the appointing authority is the RFA No.110/2012 -38- Manager. He is the disciplinary authority also in regard to the teachers and other staff members in the school. But in Clause 7 of the scheme approved, while describing the disciplinary powers of the Managing Trustee, it is provided that he shall have the disciplinary jurisdiction regarding all the employees and staff of the Trust. Herein also, educational institutions have not been mentioned. There should be a provision specifying election of Manager who shall be the authority to appoint teachers and staff members in the school and he should be the disciplinary authority as far as the teachers and other staff members of the school are concerned. This aspect also requires deep consideration, as sufficient enabling provisions should be there to avoid any future disputes in the matter. 36. We also are of the view that Clause 6(c) which enables framing of rules and regulations is not specific. Of course, the court below has clarified that such rules and regulations framed by the Governing Body shall not be against the preliminary decree and against the scheme prepared. In the light of the background of the present suit where the contention was that there should be proper clauses for the functioning of the trust, these are matters which should be provided in the scheme itself rather than leaving it RFA No.110/2012 -39- to the Governing Body to look into the matter. Whether it is a trust or a charitable society or like bodies, the relevant provisions should find a place in the bye-laws/constitution, scheme, etc. In the scheme approved, the minimum subscription to become members, the qualification and eligibility to become members, etc. are not seen provided, whereas Clause 4 of Ext.A1 provided Rs.25/- as a minimum amount of subscription to become members. This also is a lacuna in the matter. The Governing Body is only a delegate of the General Body. The power to make rules and regulations is to be with the General Body. This is the provision in Ext.A1 as is clear from Clause 16. Enrollment of members; subscription fee; eligibility and qualification to become members are all matters to be provided in the Scheme itself. Clause 6(c) is therefore inadequate A suitable provision will have to be provided in the Scheme which should be clear and explicit like the clauses in Ext.A1. 37. Apart from the same, there should be general provisions providing for quorum for the meeting of the General Body, quorum for the meeting of the Executive Committee (Governing Council as per the Scheme), the person to preside over the meetings in the absence of the President or the RFA No.110/2012 -40- Trustee as the case may be. Otherwise, if a dispute arises in future, the parties will have to approach the civil court itself. This may not be conducive to the interest of the trust. Quorum, as is well-known, is the minimum strength required to make the decisions of a body constituted valid. It should be provided specifically among the clauses in the Scheme. 38. We have not attempted an exhaustive list of the required clauses, but the matters shown above are glaring examples. When we compare the present scheme with Ext.A1, it is clear that in Ext.A1 there are several provisions which will take care for the proper administration and management of the trust. Similar provisions on each and every aspect can be provided in the Scheme to avoid any ambiguity in any matter. The court below has not adverted to these important aspects. There is no discussion on any of the necessary clauses which should find a place in the Scheme. In that view of the matter, we set aside the impugned order and remand the matter to the trial court for fresh consideration. The appeal is thus allowed. During the interregnum, till the final decree is passed, the present arrangement will continue and the office bearers, Governing Body and the RFA No.110/2012 -41- present General Body will be in the administration of all the properties. We find that during the pendency of the case before the court below, a Receiver was appointed. It is not required now, since as per the final decree under challenge, respective bodies have been constituted. They will continue till the new Scheme is framed. The court below will be free to give appropriate directions from time to time, for the smooth functioning of the trust and both parties are at liberty to move the court for orders, if required. The court fee paid on the memorandum of appeal will be refunded to the appellant. Every endeavor will be made by the court below to dispose of the matter expeditiously, at any rate, within a period of eight months from the date of receipt of the records. The parties will appear before the court below on 29.8.2014. The respective parties will bear their costs in this appeal. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(P.V. ASHA, JUDGE)** **kav/**