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2001 DIGILAW 165 (KAR)

WOMEN S NATIONAL EDUCATION SOCIETY v. MANGALORE THEOSOPHICAL SOCIETY

2001-02-19

V.GOPALA GOWDA

body2001
V. GOPALA GOWDA, J. ( 1 ) FOR the sake of convenience, the parties in this appeal are referred to as per their rank in the trial Court. ( 2 ) THE plaintiff and defendant are two different societies. This appeal is filed by defendant in o. S. No. 272/83. That suit was filed by plaintiff/respondent for injunction restraining the defendant from amending its Rules and Regulations and to direct it to accept 5 nominees of the plaintiff on the council of management of the defendant. The basis on which the suit was filed was, plaintiff was the owner of property bearing T. S. No. 192 of Kodialbail village in Mangalore city; that it had constructed buildings for running a school and boarding house; that on 15-5-1943 it had transferred the said property to the defendant with a condition that defendant shall run the school by electing 5 of the representatives of the plaintiff annually to its council of management but during the years 1980-81 and 1981-82 the defendant refused to accept 5 nominees of the plaintiff. The suit was resisted by the defendant by filing written statement inter-alia contending that the suit was not maintainable and the condition imposed to take 5 nominees of plaintiff on the council of management of defendant is void under Section 11 of transfer of Property Act. On the basis of the pleadings, issues were framed by the Trial Court. One witness was examined as PW-1 on behalf of the plaintiff and documents Exs. P-1 to P-44 were marked. Eventhough nobody was examined on behalf of the defendant, documents Exs-D-1 to D-15 have been marked by consent. On over-all appreciation of the material available on record, the trial Court by its judgment dated 28-7-1986 decreed the suit as prayed for. Aggrieved by the same, the defendant filed R. A. No. 111/86. The first appellate Court vide its judgment dated 28-9-1991 dismissed the appeal concurring with the findings of the trial Court. Being aggrieved by the same defendant has challenged the same in this second appeal. Aggrieved by the same, the defendant filed R. A. No. 111/86. The first appellate Court vide its judgment dated 28-9-1991 dismissed the appeal concurring with the findings of the trial Court. Being aggrieved by the same defendant has challenged the same in this second appeal. ( 3 ) WHILE admitting this appeal, the following substantial question of law was framed by this court: "whether the Courts below have committed a serious error of law in not confining the scope of participation of five representatives of the plaintiff to the council of management for the management of only Basant National Girls High School transferred to the defendant under Ex p-3?" ( 4 ) HEARD the learned Counsel for the parties and perused the judgments of the Courts below. ( 5 ) MR. Giridhar, learned Counsel for the defendant/appellant has argued that the judgments and decrees of the Courts below are contrary to Section 11 of T. P. Act and hence they are bad in law. He further submits that the deed of conveyance Ex. P-3 is void in law. ( 6 ) THE Courts below placed reliance on the recitals in the deed of transfer at Ex. P-3 to the effect that in the council of management of the defendant society there shall be 5 persons to be nominated by the plaintiff. Accordingly, the same was followed from the inception till 1980-81. But, both the Courts below failed to consider whether such a condition is reasonable, legal and valid. It is not in dispute that the property was transferred in favour of the defendant to run the school called Basant National Girls High School with 5 nominees of the plaintiff on the governing council of the defendant. But, their participation is not limited or restricted only in respect of the affairs relating to the aforesaid school but is open to all affairs which are not connected to or pertaining to the said school. Thus, it is a void contract. ( 7 ) THE approach of the Courts below that eversince the transfer deed, up to the year 1980 the defendant honoured the conditions of transfer deed and discontinuance of the same was not justified, is not correct. A void contract is always void and cannot be enforced. Giving effect to the conditions of such a contract will not make the void contract enforceable. A void contract is always void and cannot be enforced. Giving effect to the conditions of such a contract will not make the void contract enforceable. Merely because the defendant has given effect to the same for several years will not create any right in favour of the plaintiff. A void contract, if given effect to by wrong notion can be brought to an end at any time. That is what precisely the defendant has did in this case. The Courts below lost sight of this aspect of the matter. Thus, both the Courts below have committed a grave error in not confining the scope of participation of 5 representatives of plaintiff in the affairs of Basant National Girls high School only. Hence, the judgments and decrees of the Courts below are bad in law and cannot be sustained. ( 8 ) THE plaintiff filed suit also seeking injunction restraining the defendant from amending its rules and Regulations. In respect of the Rules and Regulations of defendant society, the plaintiff has no manner of right to seek such injunction. The defendant society in law is entitled to effect necessary amendments to its Rules and Regulations in accordance with law. Nobody - muchless the plaintiff can seek injunction against the defendant from doing so. Both the Courts below have not applied their mind to this aspect of the matter. They granted injunction against the defendant. Virtually it amounts to allowing third parties interfering with the affairs of defendant society. Such a thing is not permissible in law. At best, the plaintiff might ask for specific performance of the contract provided the deed of transfer is in accordance with law. Beyond that plaintiff was not entitled to seek injunction restraining the defendant from effecting amendments to its Rules and Regulations. Grant of such relief in favour of the plaintiff defeats the object and purpose for which the defendant society was established and it may jeopardise its affairs. The Courts below have not considered this aspect while granting reliefs in favour of the plaintiff. In fact, plaintiff was not at all entitled to any of the reliefs sought for in the suit. The suit ought to have been dismissed by the trial Court. Since the same was wrongly decreed, the first appellate Court ought to have referred the same. In fact, plaintiff was not at all entitled to any of the reliefs sought for in the suit. The suit ought to have been dismissed by the trial Court. Since the same was wrongly decreed, the first appellate Court ought to have referred the same. But the lower appellate Court also failed to consider the case in a proper perspective. Hence, the judgments and decrees of the Courts below are bad in law and cannot be sustained. ( 9 ) FOR the foregoing-reasons, this appeal is allowed. The judgments and decrees of the Courts below are set aside. The suit filed by the plaintiff-stands dismissed. Parties to bear their own costs.